Delhi High Court
Joginder @ Mintu vs The State Govt Of Nct Of Delhi on 31 October, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 1st October 2018
Decided on: 31st October 2018
+ CRL.A. 218/2018 & CRL.M.(BAIL) 311/2018
JOGINDER @ MINTU ...Appellant
Through: Mr. Hans Raj Singh, Advocate
versus
THE STATE GOVT OF NCT OF DELHI ....Respondent
Through: Mr. Kewal Singh Ahuja, APP with SI
Bhagat Singh, PS Ashok Vihar.
Mr. Rajiv Mohan, Mr. Abhimanyu
Kampani, Mr. Abhishek Shrivastava,
Ms. Priyanka Singh, Mr. Ankur Rai,
Mr. M.A. Karthik, Mr. Yuvraj Nain &
Mr. Manish Phogat, Advocates for the
Complainant.
+ CRL.A. 319/2018 & CRL.M.(B) 446/2018
VIKAS CHAUDHARY ...Appellant
Through: Mr. Ajay Burman, Senior Advocate
with Mr. Rajesh Harnal, Ms. Tanya
Harnal, Mr. Sahil Verma and Ms.
Sadhvi Gaur, Advocates.
versus
STATE (NCT OF DELHI) ....Respondent
Through: Mr. Kewal Singh Ahuja, APP with SI
Bhagat Singh, PS Ashok Vihar.
Mr. Rajiv Mohan, Mr. Abhimanyu
Kampani, Mr. Abhishek Shrivastava,
Ms. Priyanka Singh, Mr. Ankur Rai,
Mr. M.A. Karthik, Mr. Yuvraj Nain &
Mr. Manish Phogat, Advocates for the
Complainant.
Crl.A.218/2018 & connected matters Page 1 of 66
+ CRL.A. 360/2018, CRL.M.(B) 502/2018, CRL.M.(B) 1010/2018 &
CRL.M.A. 9645/2018
VIKAS SIDHU ...Appellant
Through: Mr. Ajayinder Sangwan, Mr.
Narendra Singh, Ms. Rishina Parashar
and Mr. Rohan Sharma, Advocates.
versus
THE STATE GOVT OF NCT OF DELHI ....Respondent
Through: Mr. Kewal Singh Ahuja, APP with SI
Bhagat Singh, PS Ashok Vihar.
Mr. Rajiv Mohan, Mr. Abhimanyu
Kampani, Mr. Abhishek Shrivastava,
Ms. Priyanka Singh, Mr. Ankur Rai,
Mr. M.A. Karthik, Mr. Yuvraj Nain &
Mr. Manish Phogat, Advocates for the
Complainant.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
Dr. S. Muralidhar, J.:
1. These three appeals are directed against the judgment dated
13th November 2017 passed by the learned Additional Sessions Judge
(Central), Tis Hazari Courts, Delhi („trial Court‟) in Sessions Case
No.27963/2016 arising out of FIR No.34/2003 registered at PS Ashok Vihar
convicting the Appellants, viz. Vikas Sidhu (Accused No.1: „A-1‟ who has
preferred Crl.A.360/2018), Vikas Chaudhary („A-2‟ who has preferred
Crl.A.319/2018), and Joginder @ Mintu („A-3‟ who has preferred
Crl.A.218/2018), for the offences under Sections 120B, 364A, 302, and 201
IPC. Additionally, A-1 and A-2 were held guilty of the offence punishable
under Section 411 IPC. A-1 was also held guilty of the offences punishable
under Sections 420, 468, and 471 IPC.
2. These appeals also seek to assail the order on sentence dated
23rd December 2017 whereby A-1 and A-2 were sentenced to undergo life
imprisonment for the offences punishable under Sections 364A and
302/120B IPC "which means and implies, throughout their natural life". The
trial Court further directed that they would not be entitled for "any parole,
remission or any furlough before 30 years of imprisonment" for the said
offences. Each of them was sentenced to pay a fine of Rs. 2 lakhs and in
default of payment, to undergo simple imprisonment („SI‟) for one year. As
far as A-3 was concerned, he was sentenced to undergo life imprisonment
for the offences punishable under Sections 364A and 302/120B IPC "which
means and implies, throughout his natural life". He too was sentenced to pay
a fine of Rs. 2 lakhs and in default of payment, to undergo SI for one year.
3. For the offence under Section 201 IPC, all three Appellants were
sentenced to undergo rigorous imprisonment („RI‟) for three years and
payment of a fine of Rs. 10,000/- and in default of payment, to undergo SI
for six months. For the offence under Section 411 IPC, A-1 and A-2 were
sentenced to undergo RI for two years and payment of a fine for
Rs. 10,000/- and in default of payment, to undergo SI for six months.
4. For the offences punishable under Sections 420, 468 and 471 IPC, A-1
was sentenced to undergo RI for three years and payment of fine of
Rs. 10,000/- and in default of payment, to undergo SI for six months. Each
of the convicts i.e. A-1, A-2 and A-3 were directed to pay compensation of
Rs. 4 lakhs to the family of the deceased.
The charges
5. The charges against the Appellants were initially framed on 4 th April 2005
and were thereafter amended on 16th April 2009. The charges against the
Appellants were that, first, on or before 18th January 2003, they entered into
a conspiracy to kidnap Parakh Chadha (the deceased), aged about 20 years,
son of Vimal Chadha (PW-3) for ransom; secondly, at around 7:30 pm on
18th January 2003, they kidnapped the deceased from near H.No.C-2/44,
Ashok Vihar, Phase-II, Delhi so that he may be put to death so as to compel
his parents to pay a ransom and to this end, they made ransom calls on
various dates up to 11th March 2003; thirdly, in furtherance of the
aforementioned conspiracy, the three Appellants committed the murder of
the deceased on the night of 18th January 2003 by strangulating him; and
fourthly, after committing the murder of the deceased, with an intention to
screen themselves from prosecution, they burnt the dead body of the
deceased with petrol and threw it in a ditch near the Hindon river near
Ghaziabad.
6. A-2 was further charged with having been found in possession of one
wrist watch belonging to the deceased that he is alleged to have received or
retained despite having reason to believe the same to be stolen. A-1 was also
charged with having forged a photocopy of his passport and making
misrepresentations on a customer application form so as to dishonestly
procure a SIM card from which to make ransom calls. He was also charged
with having been found in possession of a gold chain belonging to the
deceased that he is alleged to have received or retained despite having
reason to believe the same to be stolen.
The deceased goes missing
7. Vimal Chadha (PW-3) and Sunaina Chadha (PW-7) are the parents of the
deceased. PW-3 ran a factory at Mayapuri while the family resided at Ashok
Vihar, Phase-II. Apparently, the deceased had discontinued his studies and
was helping his father (PW-3) in running the family business.
8. PW-7 stated that at around 7:30 pm on 18th January 2003, she was
standing on the balcony of the first floor when the bell rang. From the
balcony, she noticed a boy aged about 23 years standing at the gate. The
deceased went to the gate to answer the bell while two of his friends, viz.
Pawan and Bakul, also reached there. PW-7 then states that the deceased
was in conversation with the aforementioned friends when the boy who rang
the bell whispered something in his ear and then went towards the park in
front of the house. She states that she then went into her room. In Court, she
identified A-1 as the boy who rang the bell.
9. Ramdeen (PW-2), who worked as domestic help in a neighbouring house,
states that at the relevant time, he was standing outside the house where he
worked with his friend, Ramdev. He states that he saw a black Yamaha
motorcycle with two persons on it make a round of the area. According to
him, they spoke to a person who was standing in the park. He deposes that
ultimately, one of the two boys came alone on the motorcycle to
H.No.C-2/46 and pushed the bell at the gate in response to which, the
deceased came out of his house. Thereafter, the person on the motorcycle
started talking to the deceased. In the meantime, two more persons
purportedly came on another motorcycle and were told something by the
first person who had earlier pushed the bell. Thereafter, the first person left
for the park in front of the house and the two persons who had come
together also left. Thereafter, the deceased purportedly also went to the park
where the aforementioned three persons were already gathered.
10. In Court PW-2 identified A-1 as the person who arrived at the
deceased‟s house first and pushed the bell, A-2 as the person to whom the
deceased was talking in the park, and A-3 as the person who was already
standing in the park. PW-2 deposed that all of them, including the deceased,
then left from the park on their respective motorcycles and headed towards
the Central market.
11. The deceased failed to return home till midnight. PW-3 then went to PS
Ashok Vihar and gave a statement regarding his son, the deceased, having
gone missing after having left with his friends at around 7:30 pm on
18th January 2003. PW-3 disclosed certain material details about his son
such as him being 5‟4" in height, his wheatish complexion, and having a
long face and strong build. He further stated that the deceased was wearing
white sports shoes, cream coloured trousers, and high-necked black and red
sweater.
Ransom calls made to PW-3
12. Atul Sehgal (PW-1) is the brother-in-law of PW-3. PW-1 stated that at
around 9 to 9:15 pm on 18th January 2003 he received a call from PW-3
stating that the deceased had gone missing from home. PW-3 asked PW-1
whether the deceased was at the home of PW-1. Since PW-1 was in
Connaught Place, he informed PW-3 that he would return home and check.
When PW-1 reached home at around 10:30-10:45 pm, his mother informed
him that the deceased had not come there. They went to the house of PW-3
and, after waiting till midnight, returned home.
13. PW-1 stated that he then went to the house of PW-3 at around 1:30 to
2 pm on 19th January 2003. PW-3 had gone in search of his missing son
when, at around 2 pm, a phone call was received at the house of PW-3 on
the landline which was attended by PW-1. According to PW-1 the caller
made a demand of Rs. 35 lakhs in exchange for the release of the deceased.
PW-1 stated that before he could make any further enquiries, the caller
disconnected the call. PW-1 informed PW-3 about the call. They both then
went to PS Ashok Vihar to lodge a complaint (Ex.PW-3/A) about the
abduction of the deceased and the subsequent demand of ransom of Rs. 35
lakhs.
14. According to PW-3, he had a voice recording system installed on his
landline number ending „9038‟ on 19th January 2003. On 20th January 2003,
PW-3 went to PS Ashok Vihar since he had forgotten to mention in his
complaint the previous day that the deceased "was wearing a gold chain
with locket of P-Mark with two diamonds inserted in that locket and was
also wearing a wrist watch, make Titan, of golden colour".
15. According to PW-3, on 20th January 2003, he received another ransom
call, again on the landline. This time the caller claimed that the deceased
was with him and asked PW-3 whether the arrangements for the payment of
ransom had been made. The caller refused PW-3‟s request that he bring the
deceased on the line so that PW-3 may talk to him. PW-3 claimed that this
conversation was recorded on the voice recording system and a transcript of
the same was subsequently handed over to the police.
16. According to PW-3, the next ransom call was received on
1st February 2003 on the landline with the caller asking PW-3 to leave for
Agra from his house at 1 pm, the next day. The caller again refused to bring
the deceased on the line so as to enable PW-3 to talk to him. He reiterated
that PW-3 should leave for Agra with the money in his Opal Astra car. The
caller also noted the mobile number of PW-3 (which ended in the digits
7709).
17. According to PW-3, on 2nd February 2003, he again received a call from
the caller, this time on his mobile phone. The caller instructed him to start at
3 pm instead of 1 pm. Thereafter, he received another call at 3 pm whereby
the caller instructed him to leave for Agra at 5 pm. At 5 pm, PWs 1 and 3
left for Agra with the money and police assistance. While he was on his
way, PW-3 received instructions on his mobile phone to go to Ghaziabad
instead of Agra. The caller asked him to reach a place at Indrapuram/Indra
Vihar which was about 25-30 km away from the Inter State Bus Terminal
(„ISBT‟).
18. According to PW-3, when they reached Indrapuram, nobody came to
collect the money. The calls received by PW-3 on his mobile phone on
2nd February 2003 could not be recorded as he did not have the voice
recording facility on his mobile phone. However, according to PW-3, these
conversations were being heard by Assistant Commissioner of Police
(„ACP‟), Mr. Joy Tirkey (PW-33), who was in a different vehicle but had
the provision of a parallel line to PW-3‟s mobile number ending „7709‟.
19. On 10th March 2003, PW-3 received another call on his mobile phone
from another mobile number. The caller introduced himself as a doctor who
was treating the deceased who he said was in the custody of "some bad
elements". PW-3 states that this caller, without mentioning anything about
the deceased having been kidnapped, asked on his own initiative how much
ransom had been demanded. When PW-3 told him that approximately Rs. 25
lakhs had been demanded as ransom, the caller said that he wanted a sum of
Rs. 20 lakhs for providing information about the deceased and the
whereabouts of his captors. PW-3 agreed to pay the said sum and told the
caller that he had already arranged for the money. PW-3 stated that as his
mobile phone was not displaying the number of the caller, he asked the
caller to tell him the caller's mobile number. The caller gave him the number
and warned him that it should not be passed on to the police or else the life
of the deceased would be in danger.
20. PW-3 stated that he exchanged 3-4 calls with the caller throughout the
day on 10th March 2003. Although PW-3 stated that he did not remember
the details of these conversations, he claimed that the transcripts of the same
were handed over by him to the police.
21. PW-3 received yet another call on 11th March 2003 on his mobile
number. According to PW-3, the caller claimed to be the brother of the
doctor who had called him the previous day. The caller purportedly asked
PW-3 to make a payment of Rs. 20 lakhs. During the call, PW-3 asked the
caller to confirm that the deceased was in fact present in their custody. In
order to verify this, he asked the caller to confirm the name of the mother of
the deceased, the names of his siblings, and the registration of PW-3‟s car.
The caller insisted on PW-3 calling him from a Public Call Office („PCO‟).
PW-3 then went to the office of his friend, Sardar Inderjeet Singh (PW-38),
and made a call from his landline number to the ransom caller‟s mobile
number. The mobile number of the caller was the same on both dates, i.e.
10th and 11th March 2003.
22. According to PW-3, these conversations were also recorded on the voice
recording system and transcripts thereof were given to the police. According
to PW-3, he made a compilation of these calls in a cassette and deposited the
same with the police on 2nd May 2003.
Investigation by police
23. Sub-Inspector (SI) Naresh Kumar (PW-19) was present at PS Ashok
Vihar when PW-3 called him to make a complaint about the deceased
having gone missing. PW-19 was also present when, in the afternoon of
19th January 2003, PWs 1 and 3 went to PS Ashok Vihar to inform the
police that a ransom amount of Rs. 35 lakhs had been demanded for the
release of the deceased. PW-19 recorded the statement of PW-3, prepared
the rukka (Ex.PW-19/A), and sent it for registration of the FIR.
24. PW-19 along with Station House Officer („SHO‟), Inspector Shiv Dayal
(PW-37), and senior officers went into the house of PW-3 on 19th January
2003 where they met PW-7 and her daughter. He recorded their statements
and collected recent photographs of the deceased. Thereafter, PW-19
returned to the PS. PW-3 then came there and made a supplementary
statement.
25. On 21st January 2003, PW-2 purportedly contacted PW-19 in the PS and
stated about what he had seen in the evening of 18th January 2003. PW-19
then shared this information with the SHO and other senior officers.
Accompanied by the SHO and officers, PW-19 then went to the spot and
recorded the statement of PW-2. PW-19 also recorded the statement of
another watchman, viz. Ramdev (not examined). According to PW-19, in his
presence, the SHO deputed Constable (Ct.) Pramod to monitor the calls.
26. PW-19 was also present when, on 10th March 2003, PW-3 came to the
PS to inform about having received a ransom call on his mobile phone.
Thereafter, on 11th March 2003, PW-3 informed PW-19 about having
received further calls making demand for ransom to be paid. PW-19 sent the
caller details for verification from the mobile agency. He found that the
address of the caller was forged. PW-19 then tracked down the IMEI
number of the mobile phone used by the caller and conveyed it to the mobile
agencies to track down the same. On 2nd May 2003, PW-19 received an
audio cassette containing the ransom calls recorded by PW-3 which was
seized (Ex.PW-3/B) and the statement of PW-3 in this regard was recorded.
Tracking the callers making ransom calls
27. Mention must also be made about the role of ACP John Tirkey (PW-33).
He confirmed that the calls received by PW-3 on his mobile phone were
intercepted and also that he had accompanied him on 2nd February 2003 to
Agra albeit in a different car. Despite calling PW-3 to Shyam Lal College
and thereafter, to Indranagar, Ghaziabad, the accused did not come forth to
collect the ransom amount. He also confirmed the ransom calls made to
PW-3 on 10th and 11th March 2003.
28. According to PW-33, the mobile number ending „3554‟ was found to
have been taken on a fake address. The IMEI number of the phone was
checked and was found to be working on an Idea Cellular phone number
ending „4722‟. Upon enquiries from the company, it was found that the
number ending „4722‟ was taken in the name of one Suraj Joshi, resident of
Mahindra Park, Adarsh Nagar.
Arrests and seizures
29. On 4th May 2003, ASI Raj Singh (PW-35), after verifying the address of
the number ending „4722‟, went to the aforementioned address along with
PW-37, PW-19, Ct. Om Prakash (PW-17), and Ct. Balvinder (PW-15). They
met Suraj Joshi (PW-9) there who then led them to the house of Anirudh
Saini (PW-8). Upon enquiries being made, PW-8 informed them that the
said mobile number was used by him from 2002 to 15 th March 2003. When
asked specifically about the usage of said number between 10th and
11th March 2003, PW-8 informed the police that A-1, who he referred to as a
friend, had taken the said mobile phone from him on 8th March 2003 and had
returned it on 13th March 2003. Thus, for the first time in the investigation, a
link was established to A-1.
30. After recording the statement of PW-8 and discharging him from the
investigation, the police party reached the residence of A-1 at E-167, Ashok
Vihar, Phase-I. He purportedly confessed to his involvement in the crime
when interrogated and also disclosed the involvement of his associates, viz.
A-2 and A-3. His disclosure statement (Ex.PW-11/A) was recorded.
31. A-1 got recovered a black Yamaha motorcycle bearing registration DL-
8SF-5661 on the front and DL-8SF-5561 on the rear. A-1 supposedly further
disclosed that this was the same vehicle on which the deceased was taken
away. A-1 also allegedly got recovered a gold chain with a locket, which
was then seized. A-1 also purportedly got recovered a black muffler from his
house by which he along with the other co-accused had allegedly
strangulated the deceased. This too was seized.
32. A-1 is supposed to have then led the investigating team to E-39, Ashok
Vihar, Phase-I from where they got recovered a white Maruti 800 car
bearing registration DDC 5401. According to the police, A-1 disclosed that
this vehicle was used in the abduction of the deceased and his eventual
murder inside the car. The car was seized (Ex.PW-11/F) in the presence of
its owner, Harinder Pal Singh (PW-31).
33. The police team then went to 132, Police Colony, Ashok Vihar from
where they apprehended A-2 on the pointing out of A-1. A-2 made a
disclosure (Ex.PW-11/G) and purportedly got recovered a gold coloured
Titan wristwatch. This was kept in a pulanda and sealed. Thereafter, on the
basis of the disclosures of both A-1 and A-2, the police reached WP-111,
Wazirpur and on their pointing out, A-3 was apprehended. According to the
police, all of this happened in the presence of a public witness, Shyam
Sunder Kohli (PW-11), who happened to have approached them when they
were proceeding towards the house of A-1.
34. According to ASI Raj Singh (PW-35), one Shubhankar Mitra (not
examined) produced a mobile phone with the number ending „4722‟ and
informed the police that he had purchased it from PW-9 through PW-8. This
too was seized and sealed.
Further steps in investigation
35. On 5th May 2003, all three accused were taken out from lock up and
thereafter, A-1 led the police team to his house from where he got recovered
his passport and some documents pertaining to the motorcycle which were
then taken into possession (Ex.PW-19/H).
36. On the same date, PW-37 directed Inspector Rajbir Singh, the Additional
SHO of PS Ashok Vihar, to record the voice samples of A-1 and A-2. This
was done in the presence of a public witness, Kanhaiya (PW-10). The
cassette marked S-1 is stated to be the voice sample of A-2 and that marked
S-2, the voice sample of A-1. These were seized and sealed.
37. Thereafter, according to PW-37, the three accused were produced before
the learned Metropolitan Magistrate („MM‟) in muffled faces and then sent
to judicial custody.
38. On 8th May 2003, the three accused were produced in the Court of
learned MM for fixing a date for conduct of a Test Identification Parade
(„TIP‟). However, all three of them refused to take part.
39. According to PW-37, it was only thereafter that A-1 was identified by
PW-7 as the person who rang the bell at their house on the evening of
18th January 2003 and thereafter, took the deceased away. On
10th May 2003, the other witnesses, viz. PW-2 and Ramdev, identified the
three accused and stated that A-2 took the deceased away on his motorcycle.
Identification of the dead body
40. On 9th May 2003, purportedly on the basis of the disclosures by the
accused, PW-37 along with PW-19, PW-35 and other team members
proceeded to Ghaziabad for further investigation in the case. The three
accused as well as PW-3 also accompanied them. The accused purportedly
led the police to the Mahamaya Sports Stadium, Ghaziabad, stating that they
had thrown the dead body near there. They individually and separately
pointed out the nala in front of the stadium. No dead body or skeleton was
seen in the nala which was stated to be 8 to 9 ft deep.
41. PW-37 came to know that the area where they were conducting
investigation fell within the purview of PS Kotwali, Ghaziabad. The police
team proceeded to that PS and after making enquiries, PW-37 learnt that on
19th January 2003, an unidentified, half/partially burned dead body was
found and noted down in Report No.29 of that date.
42. An FIR had been registered in that PS under Sections 301 and 302 IPC
and SI Radhey Shyam Sharma had been put in charge of the investigation in
that case. He showed the police team led by PW-37 photographs of the dead
body. PW-3 identified the body from the photographs to be that of the
deceased. The Malkhana Moharrar [MCH (M)] of PS Kotwali, HC Satyavir
Singh (PW-34), produced the pulanda containing the burnt clothes and
shoes of the deceased, which were then identified by PW-3.
Post mortem examination
43. It requires to be noted that the post mortem examination of the dead
body was conducted at District Hospital, Ghaziabad by Dr. P.C. Aggarwal
(PW-26) at 3:30 pm on 20th January 2003. The following injuries were noted
by the doctor:
"The Postmortem Burn over whole of face, neck, chest
abdomen and both thighs and right sole. All abdominal organs
and perinea area burnt. No line of redness and no blisters
present."
44. The cause of death was opined to be coma as a result of ante-mortem
injuries which had been caused for about 1½ days prior to the post mortem
examination. The length of the body was measured as 160 cm, scalp hairs
were 6 cms, and the black beard and moustache were burnt. The kidney,
liver, heart, spleen, and all other organs were found burnt. Burnt cloth
pieces, one burnt shoe, and another shoe with burns were also handed over
to the police.
Remaining steps in investigation
45. The TIP of the recovered gold chain and wristwatch was conducted in
the court of learned MM Raj Rani Mitra (PW-5) on 18th July 2003. The Call
Detail Records („CDR‟) of the relevant mobile numbers were also collected
from the respective service providers.
46. At the end of the investigation, a charge sheet was first filed on
27th July 2003. Thereafter, a supplementary charge sheet was filed.
Determination of Age of A-2
47. At this stage, it requires to be noticed that A-2 claimed right throughout
that he was a juvenile on 18th January 2003, the date on which the deceased
was abducted. A matriculation certificate produced by him showed his date
of birth as 20th January 1985. In other words, he claimed that he completed
18 years on 20th January 2003, two days after the date on which the deceased
was abducted.
48. The first application filed by A-2 in this regard in the trial Court on
31st May 2005 sought the transfer of his trial to the Juvenile Justice Board
(„JJB‟). By an order dated 24th August 2005, the trial Court dismissed this
application. It noted that the ossification test showed the age of A-2 on the
date of the offence to be around 19 years and 5 months. Challenging the said
order, A-2 filed Crl. Rev. P. No. 751 of 2005 in this Court. By an order
dated 31st August 2006, this Court directed the trial Court to decide the age
of A-2 afresh.
49. Thereafter, on 20th January 2007, the trial Court once again turned down
the plea of A-2 by holding that he was above 18 years of age on the date of
the offence. The trial Court noted that A-2 had failed to produce any birth
certificate or other certificate in support of the date of birth appearing in the
school leaving certificate. Again, A-2 approached this Court in Crl. Rev. P.
No. 156 of 2007. By its decision dated 11th September 2007, this Court
declared A-2 to be a juvenile. Consequently, the trial Court by its order
dated 18th September 2007 separated the trial of A-2 and sent it to the JJB.
50. The trial against the other accused i.e. A-1 and A-3, meanwhile
proceeded with PW-3 being partially examined on 18th September 2007.
Thereafter, PWs 4, 5, and 6 were examined consecutively on 27 th, 28th and
29th September 2007.
51. Aggrieved by the order dated 11th September 2007 of this Court in Crl.
Rev. P. No. 156 of 2007, holding A-2 to be a juvenile on the date of the
offence, PW-3 filed an appeal being Crl.A.966 of 2008 in the Supreme
Court. By an order dated 2nd November 2007 in the said appeal, the Supreme
Court stayed further proceedings in the matter. Subsequently, on
27th May 2008, in Vimal Chadha v. Vikas Choudhary (2008) 15 SCC 216,
the Supreme Court set aside the order of this Court and directed the trial
Court to consider the matter afresh in light of Section 472 Cr PC, which
contemplated a 'continuing offence'.
52. Thereafter, for the third time, the trial Court by its decision dated
2nd January 2009, declared A-2 was above 18 years with reference to the
date of the last of the ransom calls i.e. 11th March 2003. The trial Court
noted that in terms of the case of the prosecution, the offence in the present
case under Section 364-A IPC was a continuing one with A-1 and A-2
alleged to have made ransom calls even after the murder of the deceased.
The order dated 2nd January 2009 of the trial Court was affirmed by this
Court by its order dated 13th March 2009 dismissing Crl. Rev. P. 61/2009
filed by A-2. In that process, this Court also observed:
"... the error in not framing a specific charge by mentioning the
ransom calls made on 19th January, 10th and 11th March 2003 is
a curable omission which, in terms of the judgment in Vimal
Chadha, should be corrected. The charges require to be
corrected by the trial Court itself and it is directed to do so
without any further delay."
53. Consequently, on 16th April 2009, the charges against the three accused
were reframed and altered by the trial Court. The net result was that the
three Appellants were charged with having committed offences punishable
under Sections 120B, 364A, 302, and 201 IPC. Additionally, A-2 was
charged under Section 411 IPC; A-1 under Sections 419, 420, 468, 471, and
411 IPC. Two other co-accused who were subsequently discharged, viz.
Yogesh Rawat and Amit Pratap, were charged with having committed the
offences punishable under Section 120B and Section 364A/120B IPC.
54. The order dated 13th March 2009 of this Court was affirmed by the
Supreme Court in its judgment dated 11th August 2010 in Vikas Chaudhary
v. State (2010) 8 SCC 508.
55. The thrust, therefore, of the prosecution‟s case as far as the charge under
Section 364A IPC qua A-2 is concerned, is that it was in the nature of a
continuing offence as the ransom calls continued to be made even till
11th March 2003. It is further sought to be established that those ransom
calls were made not only by A-1, but by A-2 as well.
Applications for re-examination of witnesses
56. As a result of the long drawn proceedings for determining the age of A-
2, the trial got delayed. Upon the framing of the amended charges against
the accused, PWs 3 to 6, who had been examined in the absence of A-2,
were recalled and re-examined in the presence of A-2. According to the
learned counsel for A-2, this resulted in the accused being deprived of their
right to cross-examine PWs 1 and 2. Thus, it was argued, the evidence of
those two witnesses should be kept out of the Court‟s reckoning altogether.
57. While PW-3 was being cross-examined by A-1, an application dated
7th March 2011 was filed by A-2 under Section 311 Cr PC praying for the
recall of five PWs, including PW-2. This application was dismissed by the
trial Court on 30th June 2011 and said order attained finality. Another similar
application was filed by A-1 on 9th July 2016 for the recall of two witnesses,
including PW-2. The said application was dismissed on the same date by the
trial court. That order too attained finality.
Trial
58. This is a case based on circumstantial evidence. The prosecution, in
order to prove its case, examined as many as 41 witnesses. As already
noticed, the first witness was Atul Sehgal (PW-1), the brother-in-law of
PW-3 and uncle of the deceased, whose examination-in-chief commenced
on 3rd May 2005. The final PW was Deepa Verma (PW-41), the Deputy
Director of FSL (Rohini), whose cross-examination concluded on
4th January 2016. In other words, the process of recording prosecution
evidence was stretched over 11 years. On the orders of the trial Court, a
transcription of the recorded conversations was prepared and copies of the
cassettes were provided to the accused along with the transcription.
Statements of the accused under Section 313 Cr PC
59. The statement of A-1 under Section 313 Cr PC was recorded on
31st May 2014. He denied each of the incriminating circumstances and
claimed that he was arrested by the police on the intervening night of
2nd/3rd May 2003. He further stated that he had been falsely implicated. A-1
claimed to have been taken away by the police on the pretext of making
enquiries in a rape case.
60. A-1 further stated that on 5th May 2003, the Additional SHO of
PS Ashok Vihar had a physical fight with the father of A-1 on account of his
unlawful detention, and for that reason, the Additional SHO had implicated
A-1 in the case without any material against him. A-1 referred to a telegram
sent by his father concerning his unlawful detention. A-1 further stated that
his passport was never seized and always remained with the IO in an open
condition. A-1 claimed never to have known the deceased or having gone to
his house. He stated that he did not know PWs 8 and 9 or any of the other
co-accused. He denied having borrowed any mobile phone from PW-8.
61. A further statement of A-1 was recorded on 8th September 2014,
regarding his having studied in the same class as PW-8. This was because of
the evidence given by Urvashi (PW-39), who brought the records of the
Government Model School, Civil Lines, also known as „Ludlo Castle No.3
School‟. A-1 maintained that he had never seen PW-8 prior to the case. He
denied that his father has signed as a witness on the arrest memo prepared
on 4th May 2003 and maintained that he had been taken to the PS on the
intervening night of 2nd/3rd May 2003.
62. On 9th October 2015, another statement of A-1 was recorded after the
evidence of Dr. C.P. Singh (PW-40), with respect to the audio cassettes
containing recordings of the alleged ransom calls made to PW-3. A-1
claimed that the cassettes had been tampered with and reiterated his
innocence.
63. Another supplementary statement of A-1 was recorded on
4th January 2016, this time to confront him with the evidence of PW-41 who
had analysed his handwriting on the customer application form (CAF) for
issuance of the SIM card. A-1 denied this evidence as well.
64. The statement of A-2 under Section 313 Cr PC was recorded on
15th July 2014. Thereafter, a supplementary statement was recorded on
4th January 2016. Throughout, A-2 denied the incriminating circumstances
put to him and claimed that he had been falsely implicated. A-2 claimed that
he was arrested from his house on the night of 2 nd May 2003. A-2 stated that
he had no friendship with A-1 but merely knew him because A-1‟s younger
brother studied with A-2 at Lions Public School. A-2 stated that he would
only occasionally meet A-1 when the latter would come to meet his younger
brother at the said school.
65. Turning now to A-3, his statement was first recorded under Section 313
Cr PC on 24th July 2014. He too denied all the incriminating circumstances
put to him. He claimed to be innocent. He too stated that he was picked up
on 2nd May 2003 and that his father and brother had sent telegrams to the
Police Commissioner, the Lieutenant Governor („LG‟), and other authorities.
66. The supplementary statements of A-3 were recorded on 9th October 2015
and 4th January 2016 in which he denied the testimony of PW-40 as to the
contents of the audio cassettes and the testimony of PW-41 as regards the
handwriting on the customer application form for issuance of the SIM card
used to make the ransom calls.
Defence evidence
67. Raj Kumar (DW-1), the first defence witness, was examined on
31st July 2014. He was the elder brother of A-3. He sought to prove that A-3
was picked up by the policemen in plain clothes on 2 nd May 2003. He
proved the fax message and telegram sent by his father to the Lieutenant
Governor regarding the purported illegal lifting of A-3 in a false case.
68. Mr. Sheshmani Mishra, Sr. TOA (T) Eastern Court, New Delhi was
examined as DW-2. He could not produce the original record which would
indicate whether the telegram (Ex.DW-1/A-2) was issued from the said
office. Mr. Jarnail Singh, UDC, LG Secretariat, Raj Niwas, Delhi was
examined as DW-3. He too could not bring the original record of the
telegram sent to the LG (Ex.DW-1/A-1).
69. Komal Sidhu, the brother of A-1, was examined as DW-4. He proved
that a motorcycle driven by A-1 always had DL8-SF-5661 as the registration
number. He claimed that on the intervening night of 2nd/3rd May 2003, some
police officers took A-2 to the PS for inquiry in some case, and even on that
date, the number plate on the front and rear of the motorcycle carried the
same number i.e. DL8-SF-5661. He too claimed that his father had sent a
telegram to the Commissioner of Police complaining about the unlawful
detention of A-1.
70. In his cross-examination, DW-4 admitted as correct that neither he nor
any of the relatives gave any information to any police officials or court
about the police having wrongly taken away the motorcycle. He claimed that
he did not know whether Anirudh Saini (PW-8) had studied in the same
school as A-1.
71. Mr V.K. Saxena, Deputy Advisor/CPIO-LO TRAI, Mahanagar Door
Sanchar Bhawan, Old Minto Road, New Delhi was examined as DW-5. He
referred to an application sent by A-1 under the RTI Act and the reply given
to it by the Department on 29th April, 2014 (Ex.DW-5/1). Questions were
asked to him about the incoming calls having been made free by the TRAI
with effect from 1st April 2003.
72. SI Devak Ram, DCP Office, Traffic, Todapur, Near Pusa, New Delhi
was examined as DW-6. He brought the record containing the notice of
challan for the motorcycle (Ex.DW-6/1 and DW-4/1 and 2).
73. Head Constable Dhanpat Sharma of the Police HQ also seems to have
been examined as DW-6. He brought the original application filed under
RTI by A-1 (Ex.DW-6/A) and the reply dated 14th August, 2014 (Ex.DW-
6/B). Another application sent on 7th May, 2010 by A-1 was shown to him
(Ex.DW-6/C) and he had acknowledged that the same has been received by
his department. The photocopies of the same were Ex.DW-6/D. The original
letter dated 10th May, 2010 sent by A-1 was acknowledged by him (Ex.DW-
6/E).
74. Head Constable Ratan Singh of the North West District, Delhi was
examined as DW-7. He could not produce the original record in respect of
Ex.DW-7/A and Ex.DW-7/B since the old records had been destroyed.
Impugned judgment of the trial Court
75. By the impugned judgment dated 13th November, 2017, while convicting
the three Appellants for the offences the trial Court first identified the points
of determination as under:
"a) Whether on 18.01.2003 accused persons namely Vikas
Siddhu, Vikas Chaudhary and Joginder @ Mintu had
hatched a criminal conspiracy with each other to kidnap
Parakh Chaddha @ Sunny?
b) Whether on 18.01.2003 at about 7:30 pm, accused
persons namely Vikas Siddhu, Vikas Chaudhary and
Joginder @ Mintu had kidnapped Parakh Chaddha @
Sunny in order to make ransom calls and to obtain
ransom money and whether they had made ransom calls
in furtherance of their criminal conspiracy?
c) Whether Parakh Chaddha @ Sunny died unnatural death?
d) Whether accused Vikas Siddhu has forged the photocopy
of his passport and application form for cheating the
mobile company for procuring the SIM card for making
ransom calls, by tampering his name and impersonating
as Rajbir and gave false address.
e) Whether accused Vikas Chaudhary was found in
possession of one wrist watch belonging to deceased
Parakh Chaddha @ Sunny which was received or
retained by him with a reason to believe the same to be a
stolen property?
f) Whether accused Vikas Sidhu was found in possession of
one gold chain belonging to deceased Parakh Chaddha @
Sunny which was received or retained by him having
reason to believe the same to be a stolen property.
g) Whether accused persons namely Vikas Siddhu, Vikas
Chaudhary and Joginder @ Mintu had committed the
murder of Parakh Chaddha @ Sunny and they all also
burnt the dead body of Parakh Chaddha @ Sunny with
petrol and tried to destroy the evidence of the crime
committed by them?"
76. The trial Court first examined whether the deceased had died an
unnatural death. The identification of the dead body through the photographs
by PW-3 and in light of the articles shown to him, which belonged to the
deceased, apart from the testimonies of PWs 23, 26, 34 and 36 enabled the
trial Court to reach the conclusion that the deceased had been correctly
identified. Although in the inquest report, the height of the deceased was
mentioned as 5‟9", in the statement of PW-3 (Ex. PW-3/A), it was
mentioned as 5‟4". The post-mortem report (Ex. PW-26/A) mentioned the
height as 160 cm. Further, the non-examination of all the witnesses with
regard to the panchnama and other witnesses, who were part of the
investigation conducted by the Ghaziabad Police, was held by the trial Court
to not be fatal, particularly in light of the decisions in Vijender Singh v.
State of U.P. 2017 (1) ADJ 759; State of Karnataka v. Suwarnamma 2015
1 AKR 2013 and State of Rajasthan v. Smt. Kalki AIR 1981 SC 1390.
77. The trial Court noted that Dr. P.C. Aggarwal (PW-26) had deposed that
the injuries on the body of the deceased were ante mortem as well as post
mortem and that the ante mortem injuries were sufficient to cause death.
One of these injuries was on the left side skull 3 cm above the external ear
with the underlying bone found fractured. These injuries could not be self
inflicted and no such question has been put to any PW during examination.
Therefore it could safely be concluded that the deceased died an unnatural
death.
78. The trial Court next addressed the question of criminal conspiracy
entered into between the accused punishable under Section 120 B IPC. After
discussing the evidence of PWs 2, 3 and 7, the trial Court concluded that the
essential ingredients of Section 120 B IPC were present.
79. The trial Court next addressed the question whether the accused had
kidnapped the deceased for ransom and whether in fact they had made
ransom calls. The trial Court discussed the evidence of PW-19, PW-1, and
PW-3 and after considering the cassettes and the transcripts of the
conversations constituting the ransom calls including the forensic evidence
and other witnesses like Kanhaiya Lal (PW-10), Naresh Kumar (PW-19),
Madan Lal (PW-24), the trial Court held the following to have been proved:
"(i) Accused Vikas Siddhu, Vikas Chaudhary and Joginder
were known to deceased Parakh Chaddha @ Sunny.
(ii) Accused Vikas Siddhu had gone to the house of deceased
Parakh Chaddha @ Sunny on 18.01.2003 in the evening
which is witnessed by PW-7 Sunaina Chaddha, mother of
deceased Parakh Chaddha @ Sunny, as well as seen by
PW-2 Ramdin. The testimony of PW-3 Vimal Chaddha
Is also relevant to the extent that PW-7 Sunaina Chaddha
who is wife of PW-3 and mother of deceased Parakh
Chaddha @ Sunny, had told this fact that their son had
gone with his friends."
80. The trial Court held that the portion of the statement of PW-3 that PW-7
had stated certain facts to him about the deceased having gone with his
friends was relevant.
81. The trial court also held that the following aspects stood proved:
"(iii) Deceased Parakh [email protected], the son of PW-3 and
PW-7,' was found missing since the evening of 18.01.2003 and
was not traceable thereafter.
(iv) The murder of deceased Parakh Chaddha @ Sunny was
revealed on 04.05.2003.
(v) After 18.01.2003, PW-3 Vimal Chaddha (the complainant)
and PW-1 Atul Sehgal (brother-in-law of PW-3) started
receiving ransom calls.
(vi) Complaint was made to the police regarding missing of
deceased Parakh Chaddha @ Sunny as well as receiving of
ransom calls.
(vii) Ransom calls were recorded since the very first day and
the relevant permission in this regard was also obtained for
which PW-14 is a relevant witness.
(viii) Various ransom calls were recorded and ransom calls for
3 days were sent to FSL along with the sample voice of accused
Vikas Siddhu and Vikas Chaudhary for which the relevant
witnesses i.e. PW-19, PW-10, PW-3, PW-24 and Dr. C.P. Singh
as PW-25 and subsequently again Dr. C.P. Singh as PW-40,
who have certified that the ransom calls were recorded, they
were sealed and kept intact in Malkhana, were sent to the
CFSL, and the report of Expert is EX.PW25/A and again
Ex.PW40/A, which say that the impugned voice so recorded of
the abductors matches with the sample voice of accused Vikas
Siddhu and Vikas Chaudhary.
(ix) The ransom call for 10.03.2003 and 11.03.2003 are said to
have been made from mobile Ex.P-6 along with SIM. card
no.9818293554, which is alleged to have been used by accused
Vikas Siddhu during this relevant period for which testimony of
PW-8 and PW-9 is more than sufficient.
(x) There is another material piece of evidence in the said chain
of circumstances which shows that the mobile number
9818293554 was obtained by accused Vikas Siddhu by making
manipulation and forgery in his documents for which testimony
of PW-12, PW-19, PW-29 and PW-41, is there."
82. According to the trial Court all of the above points were so grave and the
accused persons, particularly A-1, „has not been able to show anything to the
contrary.‟ The trial Court observed that a hyper-technical approach ought
not to be adopted in analysing the testimony of witnesses who may have
deposed differently due to certain reasons and lapse of time. The trial Court
rejected the plea of the accused that on account of the PWs having improved
on their versions, their creditworthiness was reduced and therefore their
testimonies should not be relied upon.
83. The trial Court further concluded that A-1 and A-2, in association with
A-3, allured the deceased; took him away from his house on 18th January
2003 and killed him. The prosecution was held to have proved that A-1 and
A-2 had made ransom calls to PW-3. The evidence of PWs 19, 33 & 37
revealed that "not only accused persons had made ransom calls and had
misguided police officials for several days." The evidence of PWs, 1, 3,
25/40 confirmed that it was A-1 and A-2 who had made ransom calls. That
the transcript in Hindi was the "exact translation of the audio recorded
version in the impugned voice recording of the abductors was held to be a
"matter of record".
84. The trial Court then reconstructed the events, as emerging from the
evidence of the prosecution as under:
"(i) Parakh Chaddha @Sunny (since deceased) was kidnapped
in the evening of 18.01.2003.
(ii) Accused Vikas Siddhu and Vikas Chaudhary along with
accused Joginder had gone to the house of deceased Parakh
Chaddha @ Sunny.
(iii) Accused Vikas Siddhu, Vikas Chaudhary and Joginder
were seen talking with deceased Parakh Chaddha @ Sunny in
the evening of 18.01.2003. PW-2 Ramdin is an eyewitness to
this incident.
(iv) PW-2 Ramdin had also seen accused persons namely Vikas
Siddhu, Vikas Chaudhary and Joginder taking Parakh Chaddha
@Sunny (since deceased) along with them In the evening of
13.01.2003.
(v) Complainant Vimal Chaddha and his family started
receiving ransom calls after 18.01.2003 for which PW-1 the
brother-in-law of PW-3 and PW-7 the mother of the deceased
Parakh Chaddha @ Sunny, along with 10 PW-19, PW-33 and
PW-37 along with other police officials are the witness for the
same.
(vi) Voice recording of the abductors was obtained and it was
sent to FSL and the report of Expert in this regard is Ex.PW-
25/A and Ex.PW40/A for which testimony of Dr. C.R Singh is
on record.
(vii) As per the reports Ex.PW25/A and Ex.PW-40/A, it is
reflected that the sample voice of accused Vikas Siddhu and
Vikas Chaudhary is similar to the impugned voice recording of
the abductors.
(viii) There is no doubt about the admissibility of the voice
recording as the Bar laid down under Section 65-B Indian
Evidence Act does not operate against it as it is along with the
original voice recording as well as independent oral evidence of
PW-1 and PW-3 who have certified and acknowledged the
ransom calls of the abductors along with their details which are
found corroborated from the transcriptions of the impugned
voice recording.
(ix) So far as the conversation, so recorded in the so impugned
audio cassettes is concerned, there is no doubt that these calls
are in the form of demanding money from the complainant and
his family, hence, it cannot be doubted that these calls were
ransom calls. The person who was kidnapped / abducted is
Parakh Chaddha @ Sunny who was found to be dead by
Ghaziabad Police on 19.01.2003 but this fact was not revealed
to the complainant PW-3 until 09.05.2003.
(x) There is nothing available on record shown by the accused
persons to the contrary by which the onus which has been
shifted upon them by the prosecution is said to have been
rebutted or they have been successful in pointing out the
preponderance of probabilities that any of the accused persons
was not involved in kidnapping or abducting or making the
ransom calls."
85. The trial Court next addressed points „d‟, „e‟ and „f‟ and held as under:
"all these chain of circumstances are reflects that the photocopy
of the passport of accused Vikas Siddhu was misused and
manipulated by him and by tampering the information available
therein, he obtained a SIM number 9818293554 which was
used in making the ransom calls."
86. The trial Court found that the gold chain belonging to the deceased and a
watch belonging to him were got recovered pursuant to the disclosure
statements of A-1 and A-2 respectively. The evidence provided by PWs 19,
29, and 41 was the third aspect in relation to the alleged forgery and
manipulation done by A-1 in his passport and other documents and in
obtaining a mobile number with which he made ransom calls to PW-3 and
his family. Ms Deepa Verma (PW-41) gave her expert opinion regarding
the forgery committed in the photocopy of the original passport of A-1. A-1
and A-2 had not been able to point out any lacunae in the testimony of other
PWs. PW-12, who was an independent witness, also alleged that the
photocopy of the passport was sent to the FSL.
87. The trial Court further held as under:
"150. From the testimonies of the above mentioned witnesses it
is, therefore, reflected that prosecution has been able to
establish that accused Vikas Siddhu, in order to cheat the
mobile company, had manipulated and forged the photocopy of
his original passport and further used it for obtaining a mobile
SIM no. 9818293554, which is alleged to have been used In
making ransom calls. Thus, all the ingredients of Section 420,
468 and 471 IPC stands established against accused Vikas
Siddhu that he had cheated the mobile company by
manipulating and forging the photocopy of his passport for
obtaining a new SIM number."
88. The trial Court next addressed the offence of murder and the accused
trying to destroying the evidence of crime committed by them.
89. The trial Court held that there was nothing to show that A-1 and A-2
were arrested prior to 4th May 2003. The evidence brought on record showed
that there was ample evidence to show that ransom calls were made to the
complainant and his family members and that those calls were made by A-1
and A-2.
90. The circumstances, which were not disputed by the accused, were as
under:
"(i) Parakh Chaddha @ Sunny was known to accused Vikas
Siddhu and other accused persons i.e. accused Vikas Chaudhary
and Joginder are stated to be friends of accused Vikas Siddhu.
(ii) Accused Vikas Siddhu had gone to the house of Parakh
Chaddha @ Sunny in the evening of 18.01.2013 and had ranged
his door bell and asked for him. It is further established from
the record that, after the accused Vikas Siddhu had left, Parakh
Chaddha @Sunny had also gone towards the same direction i.e.
Lekhram Park. It is witnessed by PW-7 and PW-2. The
testimony of these witnesses, to this extent remained
uncontroverted, as per record.
(iii) Parakh Chaddha @Sunny had gone outside on 18.01.2003
just after accused Vikas Siddhu had left and gone towards the
park in front of the house of Parakh Chaddha @Sunny. PW-2
and PW-7 are the eyewitnesses to this fact.
(iv) PW-2 had seen accused persons namely Vikas Siddhu,
Vikas Chaudhary and Joginder, gathering near the park which
is in front of the house of Parakh Chaddha @Sunny and he had
also seen the accused persons roaming around there in
suspicious circumstances.
(v) PW-2 has further seen the accused persons namely Vikas
Siddhu, Vikas Chaudhary and Joginder along with Parakh
Chaddha @ Sunny going on motorcycle towards Central
Market.
(vi) Parakh Chaddha @ Sunny did not return thereafter to his
home, after he had gone with the accused persons. It Is a matter
of record that murder of Parakh Chaddha @ Sunny had taken
place in the intervening night of 18.01.2003 & 19.01.2003.
(vii) Ransom calls were being received by the complainant and
his family, after Parakh Chaddha @ Sunny had gone out of his
house after 7:30 pm i.e. evening of 18.01.2003. Testimonies of
PW-1, PW-3, PW-7, PW-19 (10) and other police officials, in
my considered opinion, are sufficient to corroborate this fact.
(viii) Audio recording of ransom calls, is available on record,
which is in original as well.
(ix) Voice samples of accused persons i.e. Vikas Siddhu and
Vikas Chaudhary were taken by the police on 05.05.2003.
Testimony of PW-10, PW-3 and other police officials, in my
considered opinion, are sufficient to corroborate this fact.
(x) Voice samples of accused persons namely Vikas Siddhu and
Vikas Chaudhary have matched with the impugned audio
recording of the ransom calls for which the testimonies of PW
Dr. C.P Singh who was examined as PW-25 and PW-40, is
sufficient as per record to corroborate the same. It is important
to mention here that the testimony of Dr. C.P Singh remained
uncontroverted."
91. Further, the trial Court observed as under:
(i) The accused had failed to furnish a reasonable explanation for being
found in possession of the gold chain and wrist watch worn by the
deceased when he had left home on 18th January 2003. The contention
that the case property was planted on the accused was rejected. The
disclosure statement made in this regard under Section 27 of the IEA
was relevant and admissible. It was held that the recovery of mobile
set and mobile sim at the instance of A-1 was another substantive
piece of evidence. This is corroborated by PWs 8, 9, 19 and 37. There
was ample evidence to show that the mobile set with IMEI number
and sim bearing number ending in „3554‟ was used to make the
ransom calls. PWs 8 and 9 proved that this mobile phone was in fact
used by A-1. No reasonable explanation was forthcoming from A-1.
(ii) When a dead body is burnt, any visible marks of evidence pertaining
to the cause of death also get wiped out. Merely because the evidence
pertaining to strangulation of the deceased was not available, would
not make a difference. The ante-mortem injuries were not self-
inflicted. The evidence on record indicated that the deceased had been
taken by the accused persons from the Central Market, Delhi to
Ghaziabad in a Maruti car. In terms of Section 106 of the IEA, no
plausible explanation was given by the accused at time of recording
their statements under Section 313 Cr PC. The recovery of the
belongings of the deceased from and at the instances of A-1 and A-2
"are the most material piece of evidence against which explanation
furnished by the accused persons does not seem to the reasonable. The
chain of circumstances unmistakably proves that it was only the three
accused persons A-1, A-2 and A-3 who have committed the murder.
(iii) On the question of criminal conspiracy, after a detailed discussion, the
trial Court concluded that the charge under Section 120-B IPC also
stood established. It further found that the charge under Section 201
IPC was also proved.
92. For the aforementioned reasons, the trial Court proceeded to convict the
three accused and sentenced them in the manner indicated hereinbefore.
93. This Court has heard the submissions of Mr. Ajay Burman, learned
Senior Counsel appearing for A-2, Mr. Ajay Sangwan, learned counsel
appearing for A-1, Mr. Mukesh Kalia, learned counsel appearing for A-3,
Mr. Kewal Singh Ahuja, learned APP appearing for the State, and Mr. Rajiv
Mohan, learned counsel for the Complainant.
Law relating to circumstantial evidence
94. This is a case based on circumstantial evidence and the law in that regard
is fairly well settled. The Supreme Court, in Shankarlal Gyarasilal Dixit v.
State of Maharashtra (1981) 2 SCC 35, explained the law thus:
"Since this is a case of circumstantial evidence, it is necessary
to find whether the circumstances on which the prosecution
relies are established by satisfactory evidence, often described
as 'clear and cogent' and secondly, whether the circumstances
are of such a nature as to exclude every other hypothesis save
the one that the appellant is guilty of the offences of which he is
charged. In other words, the circumstances have to be of such a
nature as to be consistent with the sole hypothesis that the
accused is guilty of the crime imputed to him."
95. In Tanviben Pankaj Kumar Divetia v. State of Gujarat (1997) 7 SCC
156, the Supreme Court reiterated the above position and went on to opine:
"The principle for basing a conviction on the basis of
circumstantial evidence has been indicated in a number of
decisions of this Court and the law is well settled that each and
every incriminating circumstance must be clearly established by
reliable and clinching evidence and the circumstances so proved
must form a chain of events from which the only irresistible
conclusion about the guilt of the accused can be safely drawn
and no other hypothesis against the guilt is possible. This Court
has clearly sounded a note of caution that in a case depending
largely upon circumstantial evidence, there is always a danger
that conjecture or suspicion may take the place of legal proof.
The Court must satisfy itself that various circumstances in the
chain of events have been established clearly and such
completed chain of events must be such as to rule out a
reasonable likelihood of the innocence of the accused. It has
also been indicated that when the important link goes the chain
of circumstances gets snapped and the other circumstances
cannot, in any manner, establish the guilt of the accused beyond
all reasonable doubts. It has been held that the Court has to be
watchful and avoid the danger of allowing the suspicion to take
the place of legal proof for sometimes, unconsciously it may
happen to be a short step between normal certainty and legal
proof. It has been indicated by this Court that there is a long
mental distance between "may be true" and must be true" and
the same divides conjectures from sure conclusions."
96. Finally, in Rajendra Pralhadrao Wasnik v. The State of Maharashtra
(2012) 4 SCC 37, the Supreme Court held:
"12. There is no doubt that it is not a case of direct evidence but
the conviction of the accused is founded on circumstantial
evidence. It is a settled principle of law that the prosecution has
to satisfy certain conditions before a conviction based on
circumstantial evidence can be sustained. The circumstances
from which the conclusion of guilt is to be drawn should be
fully established and should also be consistent with only one
hypothesis, i.e. the guilt of the accused. The circumstances
should be conclusive and proved by the prosecution. There
must be a chain of events so complete as not to leave any
substantial doubt in the mind of the Court. Irresistibly, the
evidence should lead to the conclusion which is inconsistent
with the innocence of the accused and the only possibility is
that the accused has committed the crime.
13. To put it simply, the circumstances forming the chain of
events should be proved and they should cumulatively point
towards the guilt of the accused alone. In such circumstances,
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of
any other person."
97. Thus, the following key principles of evaluation of circumstantial
evidence, as enumerated in Padala Veera Reddy v. State of Andhra
Pradesh 1989 Supp (2) SCC 706, emerge from the decisions discussed
hereinabove:
(1) The circumstances from which an inference of guilt is sought to be
drawn must be cogently and firmly established;
(2) Those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused;
(3) The circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all
human probability, the crime was committed by the accused and none
else; and
(4) The circumstantial evidence, in order to sustain conviction, must be
complete and incapable of explanation of any other hypothesis than
that of the guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent
with his innocence.
Last seen
98. The first circumstance put forth by the prosecution is about the deceased
last being seen in the company of the accused. The evidence of PW-7, the
mother of the deceased, is relevant in this context. She states that she was
standing in the balcony of the first floor of their house at around 7:30 pm on
18th January 2003, when the gate bell rang. She peeped from the balcony and
noticed a boy aged around 23 years standing at the gate. The deceased then
came out of the house. According to PW-7, in the meantime, two other
friends of the deceased, Pawan and Bakul, also reached the main gate. As
the deceased was speaking to Pawan and Bakul, the boy who rang the bell
whispered something in the ear of the deceased and went towards the park in
front of the house. She then came back inside. PW-7 correctly identified the
boy who rang the bell as A-1.
99. PW-7 was confronted in her cross-examination with her previous
statement to the police under Section 161 Cr PC. The only improvement
elicited from her during her cross-examination was about A-1 having
whispered something in the ear of the deceased. In other words, the defence
was not able to shake the core part of her testimony on the aspect of „last
seen‟ namely that A-1 had rung the door bell on the evening of
18th January 2003 and that the deceased had opened the door and met him.
100. Then, we have the evidence of Ram Deen (PW-2), working as a
domestic helper at H.No.C-2/43, Ashok Vihar, Phase-II, New Delhi in the
neighbourhood of the house of the deceased which was at H.No.C-2/46.
PW-2 stated that at around 7:15 pm on 18th January 2003, he was standing
outside the house where he worked along with his friend Ramdev. He
noticed a black Yamaha motorcycle take a round in the area. Two persons
were sitting on the motorcycle. He noticed them talking to a person standing
in the park. According to him, the two boys were constantly commuting to
and from the main gate and were also talking to a boy and therefore, he got
suspicious. PW-2 claims to have noted down the partly legible number of
the motorcycle as DL8-5561. Finally, one of the two boys came alone on the
motorcycle and parked it in front of the house of the deceased.
101. PW-2 noticed that he pressed the bell installed at the gate. He noticed
the deceased come out and the boy who came on the motorcycle talking to
him. According to him, thereafter, another two persons came on another
motorcycle. After speaking to them, the boy who had come alone left for the
park. The two who had come later also left on their motorcycle. He further
states that thereafter, the deceased went to the park, where the
aforementioned three boys had already gathered.
102. PW-2 identified A-1 as the first person who had come alone on the
motorcycle and had rung the bell at the gate. He also identified A-2 as the
person with whom the deceased was talking in the park. He identified the
person already standing in the park as A-3. According to PW-2, A-2
thereafter left the park and so did the deceased. Both of them went on a
motorcycle to Central Market. Thereafter, A-1 and A-3 also proceeded to
Central Market on a motorcycle. PW-2 was shown the motorcycle that
subsequently was recovered and identified it as the motorcycle he had seen
at PS Ashok Vihar.
103. PW-2 was subjected to stringent cross-examination. How PW-2‟s
statement came to be recorded by the police is an issue on which there were
extensive arguments made before this Court. His statement was recorded on
21st January 2003. According to PW-2, he went of his own accord to the PS
and gave the SHO information which was reduced to writing. PW-2 was
asked about the number plate on the rear side of the motorcycle and he said
it was „DL8-5561‟. He clearly stated that the deceased sat on the motorcycle
"at the instance of the tall boy who started the first motorcycle". The tall boy
was correctly identified by him as A-2. PW-2 identified all the three accused
in the trial Court. It was a dock identification.
Consequences of refusing TIP
104. It must be recalled at this stage that all three accused had refused to be
identified in the TIP. They, therefore, risked the consequences of dock
identification, by both PW-2 and PW-7. The reason given by them for
refusing the TIP was that they had been shown already to PW-2 in the PS.
However, as pointed out by Mr. Mohan, this appears to be factually
incorrect if one carefully goes to the sequence of events as far as the TIP is
concerned.
105. The sequence is that on 4th May 2003, the three accused were arrested.
They were produced before Ms. Nisha Saxena (PW-30), the learned MM, on
8th May 2003. In her deposition, PW-30 has confirmed that the IO moved an
application for the TIP on 5th May 2003 itself before the learned Link MM
and it was then marked to her by the Link MM and the TIP was fixed for
8th May 2003. The three accused were produced before her with muffled
faces. They, however, refused to participate in the TIP proceedings.
106. A perusal of the order on TIP proceedings (Ex.PW-30/C) shows the
order passed by the learned MM to that effect. The statement of A-1 before
the MM was to the effect that he did not want to take part as he was kept in
the PS for quite some time. He also claims that he was shown to some
people and his photographs were taken. Identical statements were made by
A-2 and A-3.
107. There is no cross-examination of PW-30 at all. Learned counsel for the
accused sought to draw attention to the appearance noted in the order-sheet
of 8th May 2003, which shows that A-1 and A-3 were presented with their
faces unmuffled while A-2 was presented with a muffled face. However,
with no question being put to the witness in her cross-examination, the
statement in her examination-in-chief that all three accused were produced
before her in muffled face remains uncontested. In any event, there is
nothing to show that the accused were earlier shown to the witnesses. The
witnesses who were possibly lined up for the identification were PWs 2 and
7. In this regard, if one carefully peruses the cross-examination of PW-2, it
is seen that nothing was asked of him about the accused having been shown
to him in the PS prior to their being produced in the Court. Therefore, the
argument that they were already shown to PW-2 in the PS prior to their
being produced in the Court cannot be accepted.
108. It is then argued that after his arrest, A-1 took the police to the house of
the deceased and therefore, at that time, he would have been seen by both
PWs 2 and 7. As already noticed, there is no such suggestion put to PW-2 in
his cross-examination. For that matter, there is no such suggestion put to
PW-7 either. Consequently, even this plea cannot be accepted.
Refusal of applications for recall of PWs 1 and 2
109. It is then vehemently contended on behalf of A-2 that after the charges
were amended, he was not permitted to recall PW-2 for further cross-
examination.
110. It is required to be noticed that it was not as if PW-2 has not been
cross-examined by learned counsel for A-2, or for that matter learned
counsel for A-1. While it is true that on 16th April 2009, the trial Court had
directed six witnesses who were already examined to be recalled, the
prosecution opted to recall only PWs 3 to 6. Nothing prevented A-1 and A-2
from filing applications for recall of those witnesses instead of waiting until
the last moment. It is pointed out that on 7th March 2011, A-2 filed an
application which was dismissed by the trial Court on 30 th June 2011. This
was not challenged. A-1 waited until 9th July 2016 to file an application
which was dismissed on the same day. After waiting for two more months,
A-2 filed another application under Section 311 Cr PC for recall of PW-2.
111. There were no new facts that emerged concerning PW-2 and, therefore,
the trial Court cannot be held to be in error in rejecting those applications.
They would have only delayed the conclusion of the trial even further. With
PW-2 already having spoken about all the facts that were within his
knowledge, and his already having been cross-examined by the counsel for
both A-1 and A-2, it cannot be said that any prejudice was caused to either
of them on account of the dismissal of their applications for his (PW-2)
recall. The change, as far as the amended charge is concerned, was to
acknowledge that the offence under Section 364A IPC qua A-2 was a
continuing offence, as the ransom calls continued to be made until
11th March 2003. PW-2 had no role to play as far as that aspect of the matter
is concerned. In other words, the evidence of PW-2 was not going to
materially alter the inference in respect of those ransom calls.
112. The prejudice caused to the accused, therefore, has to be viewed in the
context of the purpose for which the recall had been sought. At this stage, it
should also be noticed that the refusal by the trial Court of permission to
recall PW-1 did not materially affect or prejudice their case as such because
the testimony of PW-1 is relevant only to the first ransom call made on
19th January 2003 and not those made thereafter.
Proximity of time and distance
113. Another point urged is concerning the proximity of time and distance.
It is pointed out that the deceased, according to PW-7, was last seen at
around 7:30 pm, outside his house, and even if one went by the evidence of
PWs 2 and 7 about his going away with the accused, there is a huge gap
between that point in time and the dead body being found at around 4:30 pm
on 19th January 2003, i.e. more than 24 hours later, near the Mahamaya
Stadium in Ghaziabad. It is submitted that the distance between Ashok
Vihar and Mahamaya Sports Stadium, Ghaziabad is about 40-45 km. If,
according to the prosecution, the deceased had met six persons in a span of
only five minutes when he was at home on 18 th January 2003, the possibility
of him having met many others thereafter could not be ruled out. It is
submitted that there is no evidence whatsoever of any witness seeing the
deceased in the company of the accused in Central Market, Ashok Vihar or
at Ghaziabad. The question, therefore, is how the deceased ended up in
Ghaziabad which is around 40-45 km away. It is also pointed out that
Harinder Pal Singh (PW-31) has denied that A-1 had taken his car on
18th January 2003, as alleged by the prosecution.
114. The circumstance of last seen is but one link in the chain of
circumstances. The prosecution may not able to come across evidence to
show that the deceased was last seen in the company of the accused, either at
Central Market, Ashok Vihar or Ghaziabad. However, the fact remains that
there is no evidence to show that after the deceased was seen in the company
of the accused at around 7:30 pm, he was seen anywhere else in the
company of anyone else until the time his dead body was found the
following day at 4:30 pm near the Mahamaya Stadium at Ghaziabad. Each
case has to be seen on its own facts. In a given case, the discovery of a dead
body long after the deceased was last seen might weaken the prosecution
case. In other cases, it might be an important link in the chain of
circumstances. It gets strength when seen together with all the other
circumstances. Just because there is absence of proximity from the time of
„last seen‟ and the time of discovery of the dead body will not result in
jettisoning the entire circumstance of „last seen‟. It only had to be carefully
viewed to see if the chain gets broken because of the time and distance. In
the present case, that will become clearer only when the other circumstances
are examined and what this Court proposes to do hereafter.
115. The result of the above discussion is that in the considered view of the
Court, the prosecution has been able to convincingly show that after the
deceased was seen leaving with the accused from the park at around 7:30 pm
on 18th January 2003, he was not seen anywhere else in the company of
anyone else until the discovery of his dead body at 4:30 pm, the next day,
near the Mahamaya Stadium in Ghaziabad.
116. This should also be seen in the context of the answers given under
Section 313 Cr PC by the accused, which is one of total denial and,
therefore, not offering any explanation whatsoever as to what happened after
the deceased was taken away on the motorcycle by them to Central Market.
This is an important factor that has to be kept in view while examining the
circumstances as a whole.
The recovery of the motorcycle
117. The next circumstance which has been put forth by the prosecution is
the recovery of, on the pointing out by A-1, the motorcycle on which the
deceased was seen to have been taken away by him. It will be recalled that
PW-2 noticed the deceased going away on the motorcycle in the company of
A-1, which bore registration 5561. PW-2 did not note down the entire
registration but only part of it which is understandable given that, according
to the witnesses, it was a foggy day.
118. At this stage, it is also required to be noticed that one of the
submissions by learned counsel for the accused is the fact that the front plate
of the motorcycle bore registration DL8-SF-5661 while the rear plate carried
registration DL8-SF-5561 was inserted in the seizure memo (Ex.PW-11/E)
deliberately so as to create evidence that A-1 had changed the registration
plates of the motorcycle in an effort to mislead the police.
119. The Court has perused the deposition of Shyam Sunder Kohli (PW-11),
through whom the seizure memo was exhibited because he was a witness to
it. No suggestion was given to him about this interpolation. The memo itself
was prepared by the SHO Shiv Dayal (PW-37). He too was not questioned
on any such interpolation. In his cross-examination, PW-37 denied the
suggestion that the theory propounded by the police that the number plate on
the motorcycle bore a different registration on the front as compared to the
back was a false story introduced to support the false case and to implicate
the accused.
120. Mr. J.S. Deswal (PW-32), who was posted as ACP, Sub-Division,
Rohini on 21st January 2003, had gone to the Computer Centre, Teen Murti
at the request of the SHO. He collected a list of 43 motorcycles which had
the registration number having last four digits „5561‟. That list
(Ex.PW-32/A), inter alia, contained the details of the motorcycles bearing
registration ending „5561‟. The deposition of PW-32 further corroborates the
testimony of PW-2.
121. Interestingly, the defence examined SI Devak Ram (DW-6) who is with
the office of DCP, Traffic. He confirmed that a computer generated challan
(Ex.DW-4/1) had been issued to A-1 in relation to the traffic violation by the
vehicle DL8-SF-5661. It also appears that the ownership documents
regarding transfer were placed on record through PW-22. The RC
(Ex.PW-22/E-1) revealed the name of the owner as A-1 with his address as
E-167, Ashok Vihar. The destruction of the original record was through an
instruction and this was placed on record by DW-6 as Ex.DW-6/1. The
ownership of the motorcycle in the name of A-1 has, therefore, been
sufficiently proved by the prosecution.
122. Nothing much turns on the addition of the fake number plate and the
seizure memo (Ex.PW-11/E). The argument that after having been challaned
on 20th February 2003, with the number plate as DL8-SF-5661, the accused
would still have a fake number plate on 4th May 2003 when it was seized,
was improbable, makes no difference to the situation that the said
motorcycle was in fact owned by A-1.
123. On a foggy night, when PW-2 noted down the registration as „5561‟, it
could very well have been „5661‟. It will be recalled that PW-2 was shown
the motorcycle at PS Ashok Vihar with registration „5561‟ and he identified
it to be the same motorcycle that he had seen on the night of
18th January 2003.
124. Interestingly, PW-32 was asked to collect the details of the motorcycle
bearing registration ending „5561‟ and none of them belonged to A-1. This
actually corroborates the finding of the motorcycle with the original
registration plate of „5661‟ in the front and the fake registration „5561‟ on
the rear. It probabilises the accused trying to mislead the police and avoid
being tracked.
Discovery of the dead body
125. The next important link in the chain of circumstances is the discovery
of the dead body of the deceased near the Mahamaya Stadium in Ghaziabad.
In this regard, we have the testimony of Sompal Singh (PW-36). He states
that on 19th January 2003, he was posted at PS Kotwali, Ghaziabad. At
4 pm, one Ram Bachan Yadav came to the PS and informed him that a dead
body was lying in the nala near the Mahamaya Stadium in Ghaziabad.
PW-36, Ct. Siya Ram (PW-23), SI Bhardwaj, and SI R.K. Sisodia,
accompanied by the informant, reached the spot and saw a dead body which
was in a burnt condition. They tried in vain to get the dead body identified.
A photographer was called and the dead body was photographed. A
panchnama (Ex.PW-34/F) was prepared. PW-36 identified the signatures of
SI Bhardwaj who had prepared the panchnama. Thereafter, PWs 36 and 23
took the dead body to the mortuary at Hindon, where it was preserved for 72
hours.
126. On 22nd January 2003, the post mortem examination of the dead body
was performed by Dr. P.C. Aggarwal (PW-26). In his report (Ex.PW-26/A)
dated 20th January 2003, he notes that the body was of an unknown male and
was 160 cm in length. His opinion was that the cause of death was "coma as
a result of ante mortem injuries" and also noted that the injury was "a
diffused traumatic swelling 12 x 8 cm area on left side skull 3 cm above
external ear".
127. After the post mortem examination, the dead body was cremated. The
burnt clothes and the shoes of the deceased were handed over by the doctor
to the police and this was deposited with the MCH(M) of PS Kotwali,
Ghaziabad. The hue and cry notice (Ex.PW-23/A) was identified by him.
The confrontation of this witness, i.e PW-23, with his previous statement did
not bring out any material aspect to doubt the factum of the discovery of the
dead body by him and other policemen of PS Kotwali, Ghaziabad.
128. An attempt has been made to show that the photographs taken of the
dead body were not of the dead body of the deceased at all. For this purpose,
reliance was placed on the deposition of SI Naresh Kumar (PW-19), who is
supposed to have stated that on 9th May 2003, they visited the photographer
at Ghaziabad who had taken the photographs of the dead body and recorded
his statement. He also stated that "no photographs and negatives were seized
from the photographer".
129. This, by itself, does not persuade the Court to conclude that the
photograph was fabricated or morphed. The dropping of the five panch
witnesses and two IOs of the Ghaziabad Police cannot be said to have
weakened the case of the prosecution. One of the two IOs had apparently
expired. Merely because the photograph on record did not bear the
signatures of the doctor who conducted the post mortem examination would
not make it a fabricated document.
130. It is true that Ct. Siya Ram (PW-23) has not supported the prosecution.
He has made all sorts of statements to make it appear that the inquest papers
were prepared in May 2003. He did not know who had prepared the inquest
papers (Ex.PW-23/B). According to him, he was not one of the panch
witnesses. In his further deposition on 22nd October 2011, he admitted that
his role in connection with the case was only to the effect that he was
"handed over a sealed parcel of the dead body for getting the post-mortem
done". Therefore, PW-23 making the statement about the other documents
including the „shore goga‟ (hue and cry notice) (Ex.PW-23/A) is to no avail.
131. The Court is not persuaded that the prosecution would go to such great
lengths to first fabricate the photographs and also fabricate the hue and cry
notice about the dead body found in the canal.
132. The trial Court has observed that the identification by PW-3 of the dead
body as being that of the deceased through the photograph taken was
believable. Although the dead body was badly burnt, the facial features were
such that the identification as to who it might be was possible. On perusing
the photograph, this Court is inclined to agree with the trial Court on this
aspect. Indeed, the evidence of the dead body of the deceased from the nala
near Mahamaya Stadium at Ghaziabad is convincing and believable. This
circumstance can certainly be said to have been convincingly proved by the
prosecution.
The ransom calls
133. The next important circumstance is the series of ransom calls stated to
have been made by A-1 and A-2. The first ransom call was made on the
landline of PW-3‟s home on 19th January 2003 when PW-1 was present. The
recording of calls commenced only thereafter when a machine was installed
for that purpose by PW-3. There were five ransom calls made with the first
one being a demand of Rs.35 lakhs, and this was heard by PW-1. The
second and third calls were made on 20th January 2003 and
1st February 2003, again on the landline. The fourth, fifth and sixth calls
were made on 2nd February 2003, 10th March 2003, and 11th March 2003 on
the mobile phone of PW-3.
134. The prosecution‟s case is that the two calls on 10th and 11th March 2003
were in fact made from the instrument in which had been inserted the SIM
card purchased by A-1 for the purpose of making ransom calls. Purportedly,
that SIM card was purchased from the mobile shop of PW-12. A-1 is
supposed to have used his own passport and submitted a photocopy thereof
while giving his name as one „Rajbir‟. The handwriting of A-1 on the
customer application form was compared and confirmed by Deepa Verma
(PW-41) of the FSL, Rohini.
135. The CDRs of both PW-3 and of the number used by the accused and of
the mobile number compared with the IMEI number of the instrument used
confirmed the making of these calls. The instrument itself was taken by A-1
from his friend Anirudh Saini (PW-8).
136. The chain of circumstances in this regard is that the mobile phone
whose IMEI number figures in the CDRs of the calls exchanged between
PW-3 and A-1 was shown to have belonged to Suraj Joshi (PW-9). He
confirmed that he had sold the phone to Anirudh Saini (PW-8). A-1
borrowed that phone from PW-8 for three days between 10th and
13th March 2003. A-1 inserted the SIM card he had purchased into the phone
and he and A-2 made the ransom calls from this phone to the mobile phone
of PW-3. A-1 then returned the phone to PW-8. Later, PW-8 sold that
mobile phone to Shubhankar Mitra (not examined).
137. The evidence of PWs 8 and 9 confirms the prosecution case. That
PW-8 and A-1 were in the same school has been proved by Ms. Urvashi
(PW-39) who brought the school records of Ludlo Castle No.3 School.
Nothing much has come in the cross-examination of PW-39 to dispute the
fact that A-1 was indeed in the same class as PW-8. There is nothing in the
evidence of PWs 8 and 9 that persuades the Court to disbelieve them.
138. Likewise, the evidence of PW-12 read with the evidence of PW-41
confirms that it was A-1 who had applied for and purchased the SIM card.
With the origin of the mobile instrument and the SIM card used on it having
been established thus, the prosecution has been able to successfully prove
that A-1 did use the borrowed mobile instrument and SIM card to make the
ransom calls.
139. In fact, the major breakthrough for the police was as a result of keeping
a watch on the calls made. To prove that the said ransom calls were made by
A-1 and A-2, the police had collected voice samples of A-1 and A-2 and had
compared them with the questioned voices on the ransom calls, all of which
were recorded and submitted in a cassette to the police by PW-3 on
2nd May 2003.
140. The evidence of ACP Dr. Joy Tirkey (PW-33) is important in this
regard. He has explained in detail the procedure followed. In fact, he had
himself taken the parallel line and heard some of the ransom call
conversations. He has explained in detail as to how the kidnappers sent not
only the complainant but also the police on a wild goose chase. All this was
happening long after the son of PW-3 had been done to death. Clearly, both
A-1 and A-2 were persisting with the idea of making ransom calls to PW-3,
despite having killed his son already.
141. Dr. C.P. Singh (PW-25/PW-40) has proved the matching of the
specimen voice samples of A-1 and A-2 with the questioned voices. In
addition, this Court has been taken through the detailed transcript prepared
of these conversations under the orders of the trial Court.
142. Although an argument was advanced that the original of the cassette
remained with PW-3 throughout and this was noted by the trial Court at the
stage of final arguments, the fact remains that when the recorded
conversations were played in the trial Court, no objection was raised as to
their authenticity. In any event, with the forensic expert having successfully
proved matching of the specimen voices of A-1 and A-2 with the questioned
voices, it stood clearly established that the ransom calls were in fact made
by both A-1 and A-2. The fact that PW-7 does not mention the ransom calls
does not take away one bit from the credibility of the evidence proved in
that regard.
143. It is submitted that PW-19 talks about Ct. Parmod being deputed to the
residence of PW-3 to monitor the calls. However, this was not recorded in
the case diary. It is also pointed out that the case diaries from
20th January 2003 to 5th February 2003 are silent on the aspect of receipt of
any ransom calls. It is further pointed out that PW-3‟s statement was
recorded on 20th January 2003, whereas there is no mention of receiving or
recording of phone call as of that date. It is not particularly known when
exactly the call was received on 20th January 2003 on the landline. As
regards the call of 20th January 2003, reference is made to the deposition of
PW-3 who says that while he was proceeding for Agra with PW-1, a ransom
call was received at around 5 pm. It is pointed out that PW-1 was silent
about that call. Even PW-19 was silent about this call. He also admitted that
on 2nd February 2003, no case diary entry was recorded.
144. All of the above were possible lapses in the investigation but, in the
considered view of this Court, do not adversely affect the prosecution case,
particularly in relation to the making of ransom calls by A-1 and A-2. This is
because the calls made on 10th and 11th March 2003 have been proved
conclusively by the prosecution as having been made by A-1 and A-2.
Certificate under Section 65B IEA
145. At this juncture, it is necessary to deal with the submissions of learned
counsel for the accused regarding inadmissibility of CDRs for want of
certificate under Section 65B IEA. In this context, it requires to be noticed
that while the decision of Supreme Court in P.V. Anwar v. P.K. Bashir
(2014) 1 SCC 473, overruled the earlier Bench of two Judges of the
Supreme Court in State NCT of Delhi v. Navjot Sandhu (2005) 11 SCC
600, there was no clarity whether the ruling in P.V. Anwar (supra) was
prospective or retrospective. In Sonu @ Amar v. State of Haryana (2017) 8
SCC 570, this very question has been raised. Subsequently, the matter has
been placed before a larger Bench by a separate order dated
11th December 2017 in M.A.1563/2017 in C.A.4226/2012 (P.V. Anwar v.
P.K. Bashir). The said order reads thus:
"In view of the observations in a judgment of this Court in
Sonu alias Amar v. State of Haryana, reported in (2017) 8 SCC
570, in paragraph 40, place this application before Hon'ble the
Chief Justice of India for posting the matter before an
appropriate Bench.
Learned senior counsel appearing for the applicant(s) submits
that the hearing of the appeal is fixed before the Division Bench
of the High Court of Kerala. Learned senior counsel may make
a mention before Hon'ble the Chief Justice of India."
146. Also, in Sonu v. State of Haryana (supra), the Supreme Court has held
that the admissibility of a document which is inadmissible can be taken up at
the appellate stage, which has been done in the present case. However,
considering that there is no clarity on the retrospectivity of the ruling in P.V.
Anwar (supra), this Court is not persuaded to hold that in the present case at
the time when the evidence was led [which is prior to the decision in P.V.
Anwar (supra)], the CDRs produced were inadmissible. The law at that time
was governed by the decision of the Supreme Court in Navjot Sandhu
(supra).
147. A reference may be made to the evidence of Anuj Bhatia (PW-28) who
was working as the Nodal Officer at Vodafone and brought the CDR of
PW-3. He stated that Ex.PW-28/A as well as Ex.PW-3/D3 were not signed
by any officer of their company. However, he was unable to dispute that
they were CDRs of the calls made from and received by the mobile phone
used by PW-3. The CDR clearly shows that at least four calls were made
during the day to PW-3 on 10th and 11th March 2003. PW-28 clarified that
the incoming calls which were not charged were not reflected in the
statement of account of the mobile phone of PW-3 which was a temporary
statement of account showing the calls for which he was charged.
148. The evidence of Pawan Singh (PW-27) proved the CDR of a mobile
number ending „4722‟ which was used to make the ransom calls. Again,
these CDRs did not have the certificate under Section 65B IEA. The above
documents do show that calls were made from the mobile number ending
„4722‟ to the mobile number of PW3.
149. As regards the SIM card issued to A-1 for the mobile number ending
„3554‟, it is claimed that Ex.PW-13/A (photocopy of the CAF), Ex.PW-13/B
(photocopy of the CDR of the mobile ending „3554‟) and Ex.PW-12/A1 and
Ex.PW-12/A2 (the photocopy of the passport of Rajbir) were all forged and
fabricated documents. It is contended that the cited witness of the
prosecution from Bharti Airtel and Vodafone were dropped and not
examined since the prosecution knew that the cited witnesses would not be
able to produce the original CDRs.
150. The Court is unable to agree with the above submission since the
specimen voice samples of the A-1 and A-2 have matched the questioned
voices in the ransom call. Consequently, the technical objections to the
admissibility of the CDRs require to be rejected as the forensic evidence of
voice matching is a clinching piece of evidence which connects both A-1
and A-2 with the crime.
151. PW-13 was the Nodal Officer of Bharti Airtel. He has spoken about the
CDR of mobile ending „3554‟ and has also proved the IMEI number of the
SIM card obtained by A-1 in the name of „Rajbir‟. The non-examination of
Shubhankar Mitra does not affect the case of the prosecution although
PW-37 stated that the mobile phone and SIM card used for making the
ransom calls were seized from him on 4th May 2003. The prosecution has
also been able to conclusively prove through the above evidence, the guilt of
A-1 for the offences punishable under Sections 420, 468 and 471 IPC.
152. The prosecution has also been able to conclusively prove that long after
the deceased was killed, A-1 and A-2 continued making ransom calls to
PW-3. This also proved the motive for the crime. The prosecution has also
proved that after disposing of the dead body of the deceased, A-1 and A-2
were still claiming to PW-3 that the deceased was with them. From the
transcripts, it is clear that they were trying to mislead PW-3 by saying that
the deceased was still alive even though they knew full well that he had been
done to death on the night of 18th January 2003.
Section 106 IEA is attracted
153. That the death was homicidal has been proved by the medical evidence
which could not be seriously questioned by the accused. As far as A-1 and
A-2 are concerned, the above chain of circumstances stood complete, with
each link having been fully established by the prosecution. Additionally,
with the prosecution showing that the deceased was last seen alive in their
company, the burden shifted onto A-1 and A-2 to explain how he died an
unnatural, homicidal death. Section 106 IEA would certainly get attracted in
the facts and circumstances of the case. In Shambhu Nath Mehra v. State of
Ajmer AIR 1956 SC 404, the Supreme Court explained that Section 106
IEA was not intended to shift the burden of proof (in respect of a crime)
onto the accused but to take care of a situation where a fact is known only to
the accused and it is difficult for the prosecution to prove that fact. It was
held:
"This Section 101 lays down the general rule that in a criminal
case the burden of proof is on the prosecution and Section 106
is certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate disproportionately
difficult, for the prosecution to establish facts which are
"especially" within the knowledge of the accused and which he
could prove without difficulty or inconvenience. The word
"especially" stresses that. It means facts that are pre-eminently
or exceptionally within his knowledge. If the section were to be
interpreted otherwise, it would lead to the very startling
conclusion that in a murder case the burden lies on the accused
to prove that he did not commit the murder because who could
know better than he whether he did or did not."
154. In the present case, however, far from offering any explanation, A-1
and A-2 have totally denied the circumstances put to them. This false denial
certainly provides an additional link in the chain of proved circumstances
which unmistakably points to their guilt.
Admissibility of disclosures under Section 27 IEA
155. On behalf of A-1 and A-2, it was submitted that their alleged
disclosures resulting in the police party from Delhi going to Ghaziabad to
the spot near the Mahamaya Stadium where the dead body was thrown were
inadmissible under Section 27 IEA since that spot was already known to the
police at Ghaziabad. It was likely that the police in Uttar Pradesh shared this
information with the Delhi Police long before even the arrest of the accused
on the 2nd/3rd May 2003.
156. Linked with this is the submission that the arrests of the accused took
place not on 4th May 2003 as shown in the record but on 2nd May 2003 itself.
This is further sought to be buttressed by the argument that the case diary as
seen by the learned MM had entries only till 27th April 2003 and when the
learned MM saw the case diary on 2nd May 2003, it did not contain any
further entries. The learned MM is supposed to have signed the case diaries
at that stage. It is accordingly submitted that with no entries in the case diary
until 5th May 2003, the whole story of the arrest of the accused happening
only on 4th May 2003 is a sham. It is submitted that the entire case is cooked
up by the police and ought not to be believed by this Court.
157. The law in relation to disclosure leading to the discovery of a fact
which is distinct and connects the accused to the crime is well settled. In
Pulukuri Kottayya v. Emperor AIR 1947 PC 67, the Privy Council
explained the legal position thus:
"10.... In their Lordships view, it is fallacious to treat the "fact
discovered" within the section as equivalent to the object
produced; the fact discovered embraces the place from which
the object is produced and the knowledge of the accused as to
this, and the information given must relate-distinctly to this
fact. Information as to past user, or the past history, of the
object produced is not related to its discovery in the setting in
which it is discovered. Information supplied by a person in
custody that "I will produce a knife concealed in the roof of my
house" does not lead to the discovery of a knife; knives were
discovered many years ago. It leads to the discovery of the fact
that a knife is concealed in the house of the informant to his
knowledge, and if the knife is proved to have been used in the
commission of the offence, the fact discovered is very relevant.
But if to the statement the words be added "with which I
stabbed A" these words are inadmissible since they do not
relate to the discovery of the knife in the house of the
informant."
158. The law was further explained by the Supreme Court in
Mohamed Inayatullah v. The State of Maharashtra (1976) 1 SCC 828
thus:
"11. Although the interpretation and scope of Section 27 has
been the subject of several authoritative pronouncements, its
application to concrete cases is not always free from difficulty.
It will therefore be worthwhile at the outset, to have a short and
swift glance at the section and be reminded of its requirements.
The section says:
"Provided that, when any fact is deposed to as discovered
in consequence of information received from a person
accused of any offence, in the custody of a police officer,
so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered may be proved."
12. The expression "provided that" together with the phrase
"whether it amounts to a confession or not" show that the
section is in the nature of an exception to the preceding
provisions particularly Sections 25 and 26. It is not necessary in
this case to consider if this section qualifies, to any extent.
Section 24, also. It will be seen that the first condition
necessary for bringing this section into operation is the
discovery of a fact, albeit a relevant fact, in consequence of the
information received from a person accused of an offence. The
second is that the discovery of such fact must be deposed to.
The third is that at the time of the receipt of the information the
accused must be in police custody. The last but the most
important condition is that only "so much of the information" as
relates distinctly to the fact thereby discovered is admissible.
The rest of the information has to be excluded. The word
"distinctly" means "directly", "indubitably", "strictly",
"unmistakably". The word has been advisedly used to limit and
define the scope of the provable information. The phrase
"distinctly relates to the fact thereby discovered" is the linchpin
of the provision. This phrase refers to that part of the
information supplied by the accused which is the direct and
immediate cause of the discovery. The reason behind this
partial lifting of the ban against confessions and statements
made to the police, is that if a fact is actually discovered in
consequence of information given by the accused, it affords
some guarantee of truth of that part, and that part only, of the
information which was the clear, immediate and proximate
cause of the discovery. No such guarantee or assurance attaches
to the rest of the statement which may be indirectly or remotely
related to the fact discovered.
13. At one time it was held that the expression "fact discovered"
in the section is restricted to a physical or material fact which
can be perceived by the senses, and that it does not include a
mental fact (see Sukhan v. Crown AIR 1929 Lah 344; Rex v.
Ganee AIR 1932 Bom 286). Now it is fairly settled that the
expression "fact discovered" includes not only the physical
object produced, but also the place from which it is produced
and the knowledge of the accused as to this [see Pulukuri
Kottayya v. Emperor AIR 1947 PC 67; Udai Bhan v. State of
Uttar Pradesh AIR 1962 SC 1116).
159. In Ranjit Kumar Ram v. State of Bihar 2015 SCC OnLine SC 500, the
Supreme Court reiterated the legal position as under:
"20. So far as the contention regarding the inadmissibility of the
statement recorded from the accused Chintoo Singh (A-5) and
Birendra Bhagat (A-3), of course, the statement did not lead to
the disclosure of any fact as admissible under Section 27 of the
Evidence Act. Ideally based on the statement recorded from the
accused, the investigating officer should have taken the accused
to the alleged place of occurrence which would have led to the
disclosure of place of occurrence and omission to do so, is only
a lapse in the investigation. Even if it is accepted that there was
deficiency in investigation that cannot be a ground to doubt the
prosecution version which is otherwise cogent and credible."
160. In the present case, there is nothing to show that at any time prior to the
arrest of the accused, the Ghaziabad Police in fact informed the Delhi Police
about the precise location of the dead body. Even assuming that the
Ghaziabad Police did tell the Delhi Police about a dead body having been
found, the precise spot where it was thrown would be known only to the
accused particularly since they were able to point out the nala in which they
had dumped the body. This precise location would not have been known to
the Delhi Police but for the disclosure statements of the accused.
Consequently, the Court is not persuaded that the Delhi Police somehow
knew where exactly the dead body had been thrown outside the Mahamaya
Stadium in Ghaziabad even before the accused took them there. This
submission is accordingly rejected.
161. On the case diary, learned counsel for the accused may be justified in
their submission that it was not maintained in accordance with law. The
events that unfolded during the investigation were perhaps not
contemporaneously recorded therein as it should have as required by law.
While this certainly was a serious lapse on the part of the IO, when the
evidence gathered is viewed in a holistic manner, this Court is not persuaded
to hold that the case diary was manipulated or fabricated to make it appear
that the arrests of the accused took place on 4th May 2003 and not earlier.
162. As regards the recovery of the gold chain and wrist watch belonging to
the deceased from A-1 and A-2 respectively, although the TIP of the said
articles proved that they did belong to the deceased, in the considered view
of the Court, the prosecution cannot be said to have proved this
circumstance beyond reasonable doubt. This is particularly since, at the first
available opportunity, the fact of the deceased wearing these valuable items
was not disclosed to the police by PW-3. The Court therefore keeps out of
the reckoning this part of the evidence for which A-1 and A-2 have been
held by the trial Court to be guilty of the offence under Section 411 IPC.
They are entitled to the benefit of doubt in that regard.
Chain of circumstances complete qua A-1 and A-2
163. However, this by no means dilutes the case of the prosecution qua A-1
and A-2 for the substantive offences punishable under Sections 364A, 302,
and 201 IPC all read with Section 120B IPC. In other words, that A-1 and
A-2 entered into a criminal conspiracy and, pursuant thereto, abducted the
deceased for ransom, murdered him, and concealed the evidence of the
crime has been conclusively proved by the prosecution beyond all
reasonable doubt.
Role of A-3
164. However, as far as A-3 is concerned, it is seen that the only evidence
qua him is PW-2 noticing him in the park. Unlike A-1, A-3 is not said to
have approached the deceased at all. He was not seen driving any
motorcycle. A-3 was also not stated to have driven the deceased away on a
motorcycle. His precise role in the abduction and killing of the deceased has
been unable to be spelt out by the prosecution.
165. While the involvement of A-1 and A-2 stands conclusively established
by the matching of their specimen voices with the questioned voices in the
recorded ransom calls, there is no such evidence as far as A-3 is concerned.
Therefore, he cannot be said to have been part of any criminal conspiracy or
even shared a common intention of first abducting the deceased for ransom
and then murdering him. Consequently, this Court is of the view that A-3 is
entitled to the benefit of doubt for the offences with which he has been
charged.
Conclusion
166. The net result of the above discussion is that as far as A-1 and A-2 are
concerned, their guilt for the offences punishable under Sections 364A, 302,
and 201 IPC all read with Section 120B IPC stands established by the
prosecution beyond reasonable doubt. They are, however, acquitted of the
offence under Section 411 IPC. Further, the conviction of A-1 for the
offences under Sections 420, 468, and 471 IPC is upheld.
167. As far as A3 is concerned, he is acquitted of all the offences with which
he has been charged.
168. Consequently, the impugned judgment of the trial Court convicting A-1
and A-2 for the offences punishable under Sections 364A, 302, and 201 IPC
all read with Section 120B IPC and the corresponding sentences awarded to
them for those offences, including the direction for payment of
compensation to the family of the victim, hereby stands confirmed. Further,
the impugned judgment of the trial Court convicting A-1 for the offences
punishable under Sections 420, 468, and 471 IPC and the corresponding
sentences awarded to him for those offences also stands confirmed. All
sentences shall run concurrently.
169. The impugned judgment of the trial Court convicting A-1 and A-2 for
the offence under Section 411 IPC and convicting A-3 for the offences
under Sections 364A, 302, and 201 IPC all read with Section 120B IPC and
the corresponding sentences awarded to them for those offences are hereby
set aside. The direction to A-3 to pay compensation to the family of the
victim is also set aside.
170. As a result, Crl.A.218/2018 preferred by Joginder @ Mintu (A-3)
stands allowed. Meanwhile, Crl.A.319/2018 preferred by Vikas Chaudhary
(A-2) and Crl.A.360/2018 preferred by Vikas Sidhu (A-1) are disposed of in
the above terms. All pending applications are disposed of.
171. Joginder @ Mintu (A-3) shall be released forthwith unless wanted in
any other case. He shall fulfil the requirements of Section 437A Cr PC to the
satisfaction of the trial Court at the earliest.
172. The trial Court record be returned forthwith, together with a certified
copy of this judgment.
173. A copy of this judgment, and a soft copy of the paper book, also be sent
by the Registry through a Special Messenger forthwith to the Secretary,
Delhi State Legal Services Authority („DSLSA‟) to inquire into whether and
what compensation, the legal representatives („LRs‟) of the deceased victim
might be entitled to in terms of the Victims‟ Compensation Scheme framed
under Section 357A Cr PC. The amount, if any, found payable should be
disbursed to the LRs without delay. This entire exercise be completed by the
Secretary, DSLSA preferably within three months from today.
S. MURALIDHAR, J.
VINOD GOEL, J.
OCTOBER 31, 2018
parul/rd
