Delhi High Court
Gulshan vs State on 17 January, 2019
$~R-8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Judgment Reserved on:29th November,2018
Judgement pronounced on: 17th, January 2019
+ CRL.A. 834/2016
GULSHAN ..... Appellant
Through: Mr. Amit Sharma, Mr. Aditya Bharadwaj &
Mr. Kunal Sharma Advocates.
Versus
STATE ..... Respondent
Through: Ms. Radhika Kolluru, APP for State.
SI Sanjay Rana, P.S. Prasant Vihar
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. Present appeal has been filed by the appellant under Section 374(2)
of the Code of Criminal Procedure and is directed against the
impugned judgment dated 02.06.2016 and order on sentence dated
01.07.2016 passed by Additional Sessions Judge-03/North/Rohini
Courts in FIR No. 356/2012, registered under Sections
365/392/394/307/186/364-A of the Indian Penal Code (hereinafter
referred to as IPC) at PS, Prashant Vihar whereby the Learned
Sessions Judge has found the appellant guilty and has sentenced
him as follows:
"It is not a rarest of the rare case inviting
imposition of capital punishment. I therefore
sentence the convict to undergo life
imprisonment U/s 364-A IPC and pay a fine of
Rs.10,000/-. He will undergo simple
imprisonment for six months in case of default of
payment of fine.
I further sentence the convict to undergo 5
years rigorous imprisonment U/s 392 IPC and
pay a fine of Rs.5,000/-. He will undergo simple
imprisonment for 3 months in case of default of
payment of fine.
I further sentence the convict to undergo 5
years rigorous imprisonment U/s 394 IPC and
pay a fine of Rs.5,000/-. He will undergo simple
imprisonment for 3 months in case of default of
payment of fine.
I further sentence the convict to undergo 7
years rigorous imprisonment U/s 397 IPC and
pay a fine of Rs.5,000/-. He will undergo simple
imprisonment for 3 months in case of default of
payment of fine.
I also sentence the convict to undergo one-
year rigorous imprisonment U/s 27 Arms Act and
pay a fine of Rs.5,000/-. He will undergo simple
imprisonment for 3 months in case of default of
payment of fine."
2. Brief facts of the case, as noticed by the Learned Trial Court, are as
under: -
(i) The case of the prosecution is that on
08.09.2012 Sumil went to Bhagwati Hospital in
Santro Car bearing no.TN-24A-9373 along with
his wife Pooja, mother in law Shakuntala Devi and
daughters Naina and Neha.
(ii) That the car was left in a running condition
and Sumil proceeded to take medicines from the
chemist and the rest of the family members were
sitting in the car. Abruptly, a boy arrived on his
motorcycle bearing no. DL-4SBG-2570 (black
color Karizma) and parked the same at a near
distance from the aforesaid Santro Car. The driver
of the motorcycle came from the opposite side and
pointed out a pistol on Pooja and asked her to get
down from the Car and consequently sat down on
the driver seat and drove the car along with his
mother in law and daughters namely Neha and
Naina. Therefore, on the following circumstances,
she raised an alarm and after sometime
information was also received by the police.
(iii) That DD no.58B was registered on receiving
a PCR Call at Police Station Prashant Vihar, on
08.09.2012 at about 10.43pm; on receipt of the
information that a child and lady have been
kidnapped in Santro Car No.TN-24A-9373. At
about 11.13pm in-charge of Libra-73, informed the
district control room and as well as the PCR
Delhi, that one lady along with her child have
jumped from the Santro Car at Sai Baba Chowk
and are taken to the BSA hospital.
(iv) Later on, at about 12.09am it was informed
by Sh. Sumit (PW-13) that a Santro Car has been
seen near Rithala Metro Station and the occupant
of the Santro Car has left one girl namely Naina at
Rithala Metro Station.
(v) PW-17 Jagmal on receipt of DD No.58B
reached the main gate of the Bhagwati Hospital,
Sector 13, Rohini and met Pooja and recorded her
statement Ex.PW-1/A. Further the statement of
Smt. Shakuntala Devi (PW-21) was also recorded
by the IO, on which she stated that on 08.09.2012
she along with her son namely Sumil and daughter
in law namely Pooja and grand-daughters namely
Naina and Neha were at Bhagwat Hospital for
purchasing medicines. Following to which the
accused pointed out a firearm and asked my
daughter in law to get down from the Car and
consequently sat down on the driver seat and
drove off the car. Later on, the accused demanded
money and PW-21 insisted on giving him, her gold
chain and mala but he refused to take the following
articles. Thereafter, the accused pushed her along
with her grand-daughter Neha from the car and
consequently they became unconscious. Based on
the statement recorded of PW-1(Pooja) and PW-
21(Shakuntala Devi), FIR was registered under
Sections 186/307/365/392/394 IPC.
(vi) During the course of the investigation the
police contacted Upen Tilanga (PW-14) whose
mobile number (9717858106) was used for making
the ransom call, consequent to which he informed
that on 08.09.2012 at 11.45pm he was taking his
dog outside for a walk and subsequently a person
approached him and told him that a small girl is
sitting inside the car and the following girl wants
to talk with her father. Accordingly, he handed
over his mobile phone to the accused to talk with
the father of the missing girl.
(vii) Thereafter on 09.09.2012 DD No.13-A was
registered on receipt of the information that the
accused Gulshan @ Sandeep @ Monu s/o Sh.
Bhim Sen was arrested in a separate FIR No.
265/2012 registered under Section 25 of Arms Act
at Police Station Aman Vihar and has confessed
about the subsequent crime and the accused will
be produced in Rohini Court Complex. Charges
were framed under Sections
365/392/394/397/364A/186 of the Indian Penal
Code, alternatively under Section 27 of the Arms
Act.
3. To bring home the guilt of the accused the prosecution examined 24
witnesses in all. Statement of the accused was recorded under
Section 313 of Code of Criminal Procedure wherein he claimed
innocence and stated that he has been falsely implicated in the
present case. The appellant chose not to lead any evidence in his
defence.
4. Mr. Amit Sharma learned counsel for the appellant, opened his
submissions by contending that the impugned judgment dated
02.06.2016 is based on conjectures and surmises and the same is
against the facts and the settled proposition of law, that the learned
Trial Court has ignored and omitted the material evidences and has
disregarded the cogent evidences in favor of the appellant.
5. Learned counsel for the appellant further contended that learned
trial court failed to take note of the fact that PW-1 and PW-21 both
deposed in their initial statements that the accused was wearing a
helmet and has overlooked the basic principles of criminal
jurisprudence as to how the accused has been positively identified
as the actual perpetrator of the crime. Learned counsel for the
appellant further contended that the learned Trial Court has erred in
relying on the testimonies of PW-1 and PW-21 because they are
closely related to each other and are categorized as interested
witnesses, hence their evidence cannot be exclusively relied on as
trustworthy and reliable because there is very strong possibility of
the prosecution witnesses being tutored and influenced. Learned
counsel further contended that the statements of PW-3(Ct. Ajay)
and PW-4 (Ct. Haider) are not reliable and are not trustworthy as it
is highly improbable that the appellant reversed the car in a narrow
gali with punctured tyres and PW-3 & PW-4 failed to follow the
appellant despite of having a motorcycle. Learned counsel further
contended that the learned Sessions Judge erred in relying on the
testimony of PW-14, Upen Tilanga in relation to the demand of
ransom, as no call detail records have been produced by the
prosecution.
6. Learned counsel for the appellant labored hard that the prosecution
has intentionally planted the chance prints in the Santro Car and the
comparison of the chance prints with the electronic retrieved prints
of the appellants were not admissible as the same was not supported
by a certificate under Section 65-B of the Indian Evidence Act. To
substantiate his arguments on this point, the learned counsel for the
appellant has placed reliance on Mohd. Aman and Another V. State
of Rajasthan reported in (1997) 10 SCC 44
7. Learned Counsel for the appellant further contended that the learned
Session Judge erred in ignoring the fact that in the matter
concerning FIR No. 265/12 registered under Section 25 Arms Act,
the appellant has been acquitted which establishes that the
possession of the country made pistol with the appellant has not
been proved by the prosecution.
8. Ms. Radhika Kolluru, Learned APP for State, on the other hand,
strongly refuted the submissions made by the counsel for the
appellant and submitted that the impugned judgment is based on
proper appreciation of facts and evidence and no interference in the
impugned judgment is called for by this court. Learned Counsel for
the State further contended that the statements of prosecution
witnesses i.e PW-1, PW-21, PW-3, PW-4 and scientific evidence
are corroborative in nature and the prosecution has been able to
prove their case beyond reasonable doubt.
9. Learned counsel for the State further contended that the crime team
inspected the alleged Santro car at Indra enclave, Aman Vihar on
09.09.2012 and lifted 3 chance prints which were forwarded to the
Finger Print Bureau and one of the Chance Prints Q-2 was matched
with the thumb impression of the appellant which evidently proves
the involvement of the appellant in the commission of the alleged
crime.
10. We have heard learned counsel for the parties at considerable length
and have also perused the entire material placed on record including
the record of the Trial Court.
Identification of the Accused
11. In order to deal with the contentions of both the parties, it would be
appropriate to examine the testimonies of material witnesses of the
prosecution, more particularly the testimonies of PW-1, Pooja, PW-
2, Mr. Sumil Kumar and PW-21, Shakuntala Devi, who have
identified the appellant. Ms. Pooja, wife of the complainant stepped
into the witness box as PW-1 and deposed that:
"On 08.09.2012 I along with my husband Sumil,
mother-in-law Shakuntala, my daughters Naina
and Neha at about 10.15 PM went to Bhagwati
Hospital to purchase the medicine in our Santro
car No.TN24A9373 black color. My husband
stopped the car outside the hospital and ignition of
the car was on and he went to buy the medicines
and myself, my daughters and mother-in-law
remained seated in the car. In the meanwhile,
one young boy came on motorcycle No.
DL4SBG2570 Karizma black color and stopped
his motorcycle at a little distance from our car.
After parking his motorcycle that boy came near
to our car and from the driver side he aimed at
me pistol and threatened me to get down from the
car on the point of pistol. That boy sat on the
driver seat of the car. I immediately got down from
seat next to the driver seat of the car and started
removing my daughters and my mother-in-law
from the rear seat of the car. Before that I could
alight my daughters and mother in law from the
car, that boy drove away the car with my
daughters and mother in law. At the time when he
was taking round of my car at that point of time he
was wearing a helmet. When he had entered inside
the car he was wearing helmet. He remained inside
the car for around one minute and thereafter I had
alighted from my car. When I was trying to get my
kids and mother in law out accused went away
with my car along with my kids and my mother in
law."
12. Smt. Shakuntala Devi, mother of the complainant was examined as
PW-21 who deposed that:
"On 08.09.2012 I along with my son Sumil and
daughter in law Pooja and grand-daughters
namely Naina and Neha went to Bhagwati
Hospital to purchase the medicine from shop of
Bhagwati Hospital at about 10 PM in Santro Car.
My son stopped the Santro Car outside the hospital
as ignition of the car was on and my son went to
purchase the medicines at the shop of Bhagwati
Hospital. I along with my daughter in law and
granddaughter was sitting in the Santro Car but I
do not remember its registration car. My daughter
in law got down from the Santro Car. One person
came there and opened the door of the driver side
and the person had taken out the firearm and
shown to my daughter in law who was sitting on
the seat of driver and asked my daughter in law
but I cannot tell whether it was a pistol or
revolver. The person sat on the driver seat and he
raised the speed of the Santro Car and he ran
away along with the car and that person asked me
to give the money. I told that person that I had no
money (currency notes). I asked that person that I
was having a mala and gold chain and requested
him to give the said articles but he refused.
Thereafter, accused pushed me from the car. I
along with my grand-daughter Neha had fell down
from the car and accused ran away from their
along with my grand-daughter Naina in car. I
became unconscious when I regained my
consciousness I found that myself in the hospital."
13. Mr. Sumil Kumar, husband of the complainant during his cross
examination has deposed as under: -
"It is wrong to suggest that I have concocted a false
story of ransom call at the instance of police official.
My wife had told that accused was wearing helmet
but his face was very much visible as it was not a full
helmet."
14. A conjoint reading of the aforesaid testimonies of the prosecution
witnesses, it is evidently established that the appellant pointed out a
pistol on PW-1 and threatened her to get down from the car and
consequently drove away the car making the occupant of the car i.e.
PW-21 Shakuntala Devi and two girls namely baby Neha and baby
Naina as hostages. Testimonies of these witnesses further
establishes the fact that the appellant/accused was not wearing a full
helmet, therefore he was correctly identified by PW-1 and PW-21.
15. As far as the stand taken by learned counsel for the appellant that
PW-1 and PW-21 are interested witnesses and closely related to
each other, a survey of the judicial pronouncements of the Hon'ble
Apex Court on this point leads to the inescapable conclusion that
the evidence of a closely related witnesses is required to be
carefully scrutinized and appreciated before any conclusion is made
to rest upon it, regarding the convict/accused in a given case. Thus,
the evidence cannot be disbelieved merely on the ground that the
witnesses are related to each other or to the deceased. In case the
evidence has a ring of truth to it, is cogent, credible and trustworthy,
it can, and certainly should, be relied upon. (Ref: Anil Rai Vs. State
of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003)
1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13
SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256;
[email protected] & Ors. Vs. State of Tamil Nadu, (2012) 12
SCC 701; Ganga bhavani Vs. Rayapati Venkat Reddy & Ors.,
(2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
16. In the present case nothing has brought on record to prove that the
evidence of PW-1 & PW-21 cannot be believed and they have
falsely implicated the appellant due to some personal vengeance or
have been implicated in the present case at the instance of the
prosecution. Therefore, aforesaid testimonies cannot be rejected on
the mere ground of their relationship because the relationship by
itself is not a sufficient ground to discard the evidence of the
witnesses and specify it as inappropriate for credence and hence the
argument of the counsel for the appellant with regard to interested
witness hold no ground.
Police Witness
17. Other significant prosecution witnesses are Ct. Ajay (PW-3) and
Ct. Haider (PW-4), from Police Station - Aman Vihar. Both the
witnesses who were on the night patrolling duty on the intervening
night of 08/09.09.2012 testified the presence of appellant in the
aforesaid Santro car on the date of the incident. PW-3 Ct. Ajay
during his examination in chief deposed as under: -
"On the intervening night of 08/09.09.2012, I was
posted at PS Aman Vihar and was on night
patrolling duty and was present in the area in
patrolling. On wireless set message was received
to the effect that from the area of PS Prashant
Vihar Santro black color car No DL 24A 9393 has
been looted and in the car women and children
were kidnapped. On this I along with Ct. Haider
started patrolling and checking in the area. During
patrolling we had seen in one gali of Sharma
colony Aman Vihar, the aforesaid Santro car
parked. We immediately rushed there then the
driver of the car immediately started the Santro
car and on its ignition. I along with Ct. Haider
tried to stop the Santro car and when driver did
not stop the car Ct. Haider had hit the front
windshield glass of the car with the danda and the
glass was broken down. I also moved towards the
conductor side of the car and hit the left window
pan of the door of the car with my pistol and tried
to stop the car. Besides this driver of the car did
not stop and attempted to run over the car over us
and to hit us with the car. I fired on the left side
tyre of the Santro car with my service pistol. On
this driver of the car immediately back the car in a
fast speed and then I came to the front side of the
car and fired. But driver of the car backed the car
fastly and made to run away from there. Both left
side tyres of the car started flatting (air started
coming out). We chased the Santro car and the
driver but we could not met us. I had fired and
used four cartridges of service pistol in order to
stop the accused and to save ourselves, on the
Santro. I had produced the empty four rounds to SI
Arvind Kumar, PS Prashant Vihar."
18. PW-4 Ct. Haider during his examination in chief deposed as under: -
"On the intervening night of 08/09.09.2012, I was
posted at PS Aman Vihar and was on night
patrolling duty and was present in the area in
patrolling. On wireless set message was received
to the effect that from the area of PS Prashant
Vihar Santro black colour car No. DL 24 A 9393
has been looted and in the car women and children
were kidnapped. On this I alongwith Ct. Ajay
started patrolling and checking in the area.
During patrolling we had seen in one gali of
Sharma Colony Aman Vihar, the aforesaid Santro
car parked. We immediately rushed there then the
driver of the car immediately started the Santro car
and on its ignition. I alongwith Ct. Ajay tried to
stop the Santro car and when driver did not stop
the car I had hit the front windshield glass of the
car with the danda which was carried by me and
the glass was broken down. Ct. Ajay also moved
towards the conductor side of the car and hit the
left window pan of the door of the car with my
pistol and tried to stop the car. Besides the driver
of the car did not stop and attempted to run over
the car over us and to hit us with the car. Ct. Ajay
fired on the left side tyre of the Santro car with my
service pistol. On this driver of the car
immediately back the car in a fast speed and then
Ct. Ajay came to the front side of the car and fired.
But driver of the car backed the car fastly and
made to run away from there. Both left side tyres
of the car started flatting (air started coming out).
We chased the Santro car and the driver but we
could not met us."
19. From the perusal of their testimonies, we find that on the
intervening night of 08/09.09.2012, Ct. Ajay (PW-3) and Ct. Haider
(PW-4), were on the night patrolling duty and on noticing the
alleged Santro car as described in wireless message received from
the control room of Delhi Police, they both rushed towards the car.
Consequently, on arriving at the spot, the driver of the car started
the ignition of the car and attempted to run over and hit Ct. Ajay
(PW-3) and Ct. Haider (PW-4). Accordingly, on the following
circumstances both the police officials endeavored every segment of
their resources to stop the Santro car with hitting the front
windshield glass with a Danda and firing four live cartridges from
their service pistol. The statement of both the police officials i.e. Ct.
Ajay (PW-3) and Ct. Haider (PW-4) were corroborative and natural.
They also withhold the test of cross-examination except minor
discrepancies. The aforesaid testimony of the both prosecution
witnesses also finds support from the testimony of PW-7 Ct.
Jagroop and PW-10 Ct. Hansraj (member of the crime team) who
have deposed that when they had arrived at the alleged spot, one
Santro car was found in a damaged condition. The front left side
glass of the car was broken and bullet marks were present on the
bonnet of the car.
20. The testimonies of the aforesaid prosecution witnesses find support
from scientific evidence as three chance prints were lifted from the
alleged vehicle and mark Q-2 was matched with the right thumb of
the accused Gulshan @ Sandeep @ Monu. The bullet marks found
on the bonnet of the car correlates with the scientific evidence and
confirms that the alleged Santro car was stolen and used by the
appellant and he was involved in the commission of the crime.
Demand of Ransom
21. As per prosecution the appellant had borrowed the phone of PW-
14, Upen Tilenga on the pretext of making an urgent call to PW-2,
Sumil Kumar father of the missing girl who was sitting in his car
but instead, demanded ransom in lieu of safe custody of his
daughter. PW-14 Upen Tilenga during his examination in chief
deposed as under: -
"Probably on 05 or 08th September, 2012, at about
11:45PM, I was taking doggy for a walk outside
our society, accused Gulshan present in the court
today (correctly identified) came to me in Santro
car. A small girl was also sitting in that car.
Accused Gulshan told me that the small girl sitting
in the car is the missing girl and that he wanted my
mobile phone to talk to the father of that girl.
Accordingly, I handed over my mobile phone to
him to talk to father of that missing girl. Accused
Gulshan talked on my telephone to somebody but I
could not listen to the conversation as accused was
talking in low tone. After talking on my telephone,
he returned my mobile phone. The accused had
talked on my mobile phone having sim number
9717858106 which is in the name of elder son of
Sh. Surender Sharma namely Pulkit Sharma."
22. PW-2 Sumil Kumar, during his examination in chief deposed as
under: -
"At about 11.45 pm on my mobile phone no.
8587021012 I received phone call from mobile
No. 9717858106 and the caller was demanding
Rs. 20 Lacs for the release of my elder daughter
Naina, aged- 7 years. My statement was recorded
by the police. The aforesaid number is in my
name of Vodafone. I am still using the said mobile
number. Later on, I had seen the accused, present
in court, correctly identified, in the custody of the
police after his arrest."
23. From the perusal of the aforesaid statements, it is clear that the
appellant borrowed the mobile phone bearing no. 9717858106 from
PW-14 on a false pretext and executed the ransom call on the
mobile number 8587021012 of PW-2, Sumil Kumar. PW-2 Sumil
Kumar has also corroborated with the aforesaid statement of PW-14
by deposing that around 11.45 p.m., he received a phone call on his
mobile number 8587021012 and the caller was demanding Rs. 20
lacs for the release of his elder daughter Naina.
24. Accordingly, from the testimony of PW-2 Sumil Kumar and PW-
14, Upen Tilenga, it stood established that it was the appellant who
made the ransom call from the mobile number (9717858106) of
PW-14 Upen Tilenga to the mobile number (8587021012) which
belonged to PW-2, Sumil Kumar.
25. Moreover, the story of the prosecution that one girl child was sitting
in the car also finds support from the testimony of the PW-14 and
the testimony of another independent witness being PW-13 Sumit.
PW-13, Sumit, during his examination in chief deposed as under: -
"On 08.09.2012, at about 11:45pm after dropping
my friend Vinod at Kamla nagar, I was going to
my house. When I reached near the Rithala Metro
Station, an unknown person stopped me and told
me that a person had dropped a girl aged about 6-
7 years from his vehicle there and thereafter, that
the person who was on the vehicle went away. I
informed the police about that girl on the nearby
police booth. After some time, PCR reached there
and took that girl in the PCR vehicle."
26. From the evidence adduced by the prosecution, we are of the view
that the failure of the prosecution to bring on record the call detail
record of the mobile phone of the prosecution witnesses should not
lead to an adverse inference. The prosecution has been able to
establish the commission of the offence in question by the appellant
beyond the shadow of all reasonable doubt based on the other
evidence produced on record. Therefore, the failure of the
prosecution in not leading evidence with regard to the location chart
of the mobile phone of the prosecution witnesses loses its
significance and in the face of other evidence brought on record, the
failure of the prosecution in bringing on record the call detail record
and the location chart, cannot be said to be fatal to the case of the
prosecution.
Scientific Evidence
27. Learned Counsel for the appellant has contended that the
prosecution has intentionally planted the chance prints in the Santro
Car and the comparison of the chance prints with electronic
retrieved records prints of the appellant were not admissible as the
same was not supported by a certificate under Section 65-B of the
Indian Evidence Act. In this context, we find from the record that
crime team inspected the alleged Santro car at Indra enclave, Aman
Vihar on 09.09.2012 and lifted 3 chance prints which were
forwarded to the Finger Print Bureau and one of the Chance Prints
Q-2 was matched with the thumb impression of the appellant, who
had been previously convicted in FIR No.394/04 registered at
Police Station R.K. Puram, U/s 482/471 of the Indian Penal Code.
The Fingerprint Analysis report was concluded with the following
datum: -
"Sub- Information regarding reprocessing of Un-
Identified Chance Prints in Case DD No. 58B, dated
08/09/12, PS Prashant Vihar, Distt. Outer.
MEMO
I want to inform you that during
reprocessing of Un-Identified Chance prints
available in the data-base of AFPIS on the
upgraded application of matcher put on trial,
the Un-Identified chance print marked Q2
(PIN-0817431LP00000039) is found
IDENTICAL with Right Thumb impression of
Gulshan @ Monu S/o Bhim Sen R/o P-52,
Chhankey Palace, New Delhi (PIN-
0816759TP00000122) who was previously
arrested/convicted in cases whose details are
given in annexure 'A'."
28. The aforesaid Fingerprint Analysis report has been proved on record
by (PW-24) ACP Rajender Kumar Vajpayi, Director, FPB, Delhi as
Ex.PW-24/A1 to A4. The relevant portion from his statement
recorded on 17.03.2016 read as under: -
"I am working as Director of Finger Print Bureau,
Kamla Market, PS Kamla Market. The chance
prints Mark Q1, Q2 and Q3 were received in our
office which were sent by Crime Mobile Team of
outer district whose finger print proficient lifted the
said chance print from vehicle. As per record
available in Automatic Finger Print Identification
System and data of convicted and arrested persons,
the chance print Mark Q2 was found identical with
the right thumb of accused Gulshan @ Monu s/o
Sh. Bhim Sen who was previously arrested in case
FIR No. 63 dated 07.03.2011 u/s 379/411 IPC PS
Sarojini Nagar. The said accused was arrested in
other cases also and convicted in case FIR
No.394/2004 u/s 482/471 IPC PS R.K. Puram
convicted by Ld. MM Ms. Namita Aggarwal, Saket
Courts, Delhi. The detail report of chance print
matching is prepared by Inspector Shiv Raj Singh
who signature at Point A which was checked by
Inspector A.P. Verma who signature at point B.
The detail report of chance print matching was
prepared under my supervision. I can identify the
writing and signature of Inspector Shiv Raj Singh
and Inspector A.P. Verma who are working as
Finger Print Experts in Finger Print Bureau at PS
Kamla Market. The detail report of chance print
matching Ex.PW24/A1 to Ex.PW24/A4 (OSR)
bearing my signature at Point C".
29. While discussing the credibility of electronic evidence and the
relevance of producing the certificate under Section 65B of the
Indian Evidence Act for substantiating its admissibility, our view is
forfeited by the recent judgment of the Hon'ble Apex Court, in the
case of Shafhi Mohammad V. The State of Himachal Pradesh
reported in (2018) 2 SCC 801. The germane portion of the
judgment is extracted below:
"(7) Though in view of Three-Judge Bench
judgments in Tomaso Bruno and Ram Singh
(supra), it can be safely held that electronic
evidence is admissible and provisions under
Sections 65A and 65B of the Evidence Act are by
way of a clarification and are procedural
provisions. If the electronic evidence is authentic
and relevant the same can certainly be admitted
subject to the Court being satisfied about its
authenticity and procedure for its admissibility
may depend on fact situation such as whether the
person producing such evidence is in a position to
furnish certificate under Section 65B(h).
(8) Sections 65A and 65B of the Evidence Act, 1872
cannot be held to be a complete code on the
subject. In Anvar P.V. (supra), this Court in para
24 clarified that primary evidence of electronic
record was not covered under Sections 65A and
65B of the Evidence Act. Primary evidence is the
document produced before Court and the
expression "document" is defined in Section 3 of
the Evidence Act to mean any matter expressed or
described upon any substance by means of letters,
figures or marks, or by more than one of those
means, intended to be used, or which may be used,
for the purpose of recording that matter.
(9). The term "electronic record" is defined in
Section 2(t) of the Information Technology Act,
2000 as follows:
'Electronic record" means data, record or
data generated, image or sound stored,
received or sent in an electronic form or
micro film or computer generated micro
fiche.'
(10). Expression "data" is defined in Section 2(o)
of the Information Technology Act as follows.
"Data" means a representation of
information, knowledge, facts, concepts or
instructions which are being prepared or have
been prepared in a formalised manner, and is
intended to be processed, is being processed
or has been processed in a computer system
or computer network, and may be in any form
(including computer printouts magnetic or
optical storage media, punched cards,
punched tapes) or stored internally in the
memory of the computer'
(11). The applicability of procedural requirement
under Section 65B(4) of the Evidence Act of
furnishing certificate is to be applied only when
such electronic evidence is produced by a person
who is in a position to produce such certificate
being in control of the said device and not of the
opposite party. In a case where electronic evidence
is produced by a party who is not in possession of a
device, applicability of Sections 63 and 65 of the
Evidence Act cannot be held to be excluded. In
such case, procedure under the said Sections can
certainly be invoked. If this is not so permitted, it
will be denial of justice to the person who is in
possession of authentic evidence/witness but on
account of manner of proving, such document is
kept out of consideration by the court in absence of
certificate under Section 65B(4) of the Evidence
Act, which party producing cannot possibly secure.
Thus, requirement of certificate under Section
65B(h) is not always mandatory.
12. Accordingly, we clarify the legal position on
the subject on the admissibility of the electronic
evidence, especially by a party who is not in
possession of device from which the document is
produced. Such party cannot be required to
produce certificate under Section 65B(4) of the
Evidence Act. The applicability of requirement of
certificate being procedural can be relaxed by
Court wherever interest of justice so justifies."
30. From the above extracted portion form the judgment of the Hon'ble
Supreme Court, it is validated that the requirement of producing the
certificate under Section 65B of the Indian Evidence Act is a
procedural aspect and the requirement of its production can be
relaxed whenever required and justified, in the interest of justice.
Therefore, the argument raised by learned counsel for the appellant
that the comparison of the fingerprints of the appellant with the
chance prints lifted from the Santro car are not admissible as the
same was not verified by a certificate under Section 65B of the
Indian Evidence Act, holds no ground.
Burden of Proof
31. From the above discussion and the scientific evidence produced on
record, it is clear that the chance prints were lifted from the alleged
Santro Car and they were matched with the right thumb of accused.
Therefore, no explanation is given by the appellant as to how his
fingerprints were detected from the aforesaid vehicle, which was
used during the commission of the alleged offence. Accordingly, by
the virtue of Section 106 of the Indian Evidence Act, the appellant
ought to have explained the incriminating circumstances pointing
against him.
32. It is also a settled legal position that Section 106 of the Evidence
Act is not intended to relieve the prosecution of its burden to prove
the guilt of the accused beyond any shadow of reasonable doubt. It
is only, when such a burden is discharged from the onus of the
prosecution and eventually shifts on to the accused to prove any fact
within his special knowledge, to establish that he/she is not guilty of
the aforesaid alleged offence. We may refer to the following Para,
from the judgment of the Apex court in Sucha Singh v. State of
Punjab, reported in AIR 2001 SC 1436 as under:
"We pointed out that Section 106 of the Evidence
Act is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to
cases where prosecution has succeeded in proving
facts for which a reasonable inference can be
drawn regarding the existence of certain other
facts, unless the accused by virtue of special
knowledge regarding such facts failed to Soffer
any explanation which might drive the court to
draw different inference."
33. In a recent judgment in the case of Raj Kumar vs. State of M.P.,
2014 Cri. LJ 1943, the Apex Court reiterated the view that where
the accused fails to give any explanation in his statement recorded
under Section 313 Cr.P.C. regarding any incriminating material that
has been produced against him, the Court will be entitled to draw
such adverse inference against the accused as maybe permissible in
law. Relevant Para of the said judgment is reproduced as under: -
"The accused has a duty to furnish an explanation
in his statement Under Section 313 Code of
Criminal Procedure regarding any incriminating
material that has been produced against him. If the
accused has been given the freedom to remain
silent during the investigation as well as before the
Court, then the accused may choose to maintain
silence or even remain in complete denial when his
statement Under Section 313 Code of Criminal
Procedure is being recorded. However, in such an
event, the Court would be entitled to draw an
inference, including such adverse inference
against the accused as may be permissible in
accordance with law."
34. Placing reliance on the judgment of the Apex Court in the case of
Prithpal Singh vs. State of Punjab &Ors. reported in (2012) 1 SCC
10, the Apex Court in the following Para has held as under:
"... if fact is especially in the knowledge of any
person, then burden of proving that fact is upon
him. It is impossible for the prosecution to prove
certain facts particularly within the knowledge of
the accused. Section 106 is not intended to relieve
the prosecution of its burden to prove the guilt of
the accused beyond reasonable doubt. But the
section would apply to cases where the prosecution
has succeeded in proving facts from which a
reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused
by virtue of his special knowledge regarding such
facts, failed to offer any explanation which might
drive the Court to draw a different inference.
Section 106 of the Evidence Act is designed to meet
certain exceptional cases, in which, it would be
impossible for the prosecution to establish certain
facts which are particularly within the knowledge
of the accused."
35. Keeping in view the law laid down above, it stands settled that
when an incriminating circumstance is put to the accused and the
said accused either offers no explanation or offers an explanation
which is found to be untrue, then the same becomes an additional
link in the chain of circumstances to make it complete.
Conclusion
36. From the above discussion, it is proved on record that the
testimonies of the prosecution witnesses are corroborating and the
alleged contradictions, if any are minor discrepancies, which do not
affect the core of the prosecution case, and therefore, cannot be
made a crucial ground to reject the evidence in its entirety. Further,
the testimonies of the witnesses are also corroborated with the
scientific evidence on record as the chance prints lifted from the
alleged vehicle matched with the right thumb of the accused
Gulshan @ Sandeep @ Monu which were retrieved from the
electronic records maintained by the Police Department. Further,
the bullet marks found on the bonnet of the car correlates with the
scientific evidence and confirms that the alleged Santro car was
used by the appellant in forcefully confining and kidnapping the
victims and have been spotted by the prosecution witnesses at
relevant time.
37. In the background of such a scenario, we are of the view that the
prosecution has succeeded in establishing its case against the
appellant. Hence, we find no infirmity in the judgment passed by
the learned Trial Court and we see no cogent reason to interfere
with the same. The conviction of the appellant under Sections 364-
A/392/394/397 of the Indian Penal Code and Section 27 of Arms
Act is upheld.
38. Accordingly, the appeal is dismissed.
39. Trial Court Record be sent back along with a copy of this order.
40. A copy of this order be also sent the Superintendent Jail, Tihar Jail.
SANGITA DHINGRA SEHGAL, J
SIDDHARTH MRIDUL, J
January 17 , 2019
gr//
