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TMI Blog2016 (11) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... the victim (PW1) as a whole, in our estimate, is truthful, having regard to the details provided with accompanying clarity and conviction. His elaborate testimony not only has projected the stage-wise developments following his abduction till his release, the same has remained unshaken substantially even by his cross- examination. This witness not only had the opportunity of seeing his abductors but also had heard their exchanges by referring to their nick names. He was in their company and under their surveillance for almost two days in course whereof they not only interacted with him but also had closely followed his conversion with his father on more than one occasion on the aspect of ransom - Apart from the fact that there is nothing convincing on record to even infer any false implication of the accused persons, we are of the unhesitant opinion that the mere omission on the part of the victim to mention at the first instance the name of appellant Harpal Singh @ Chhota, having regard to the charge of conspiracy and the concerted steps, to actualise the same is of no fatal bearing on the prosecution case, more particularly he having named/identified him at the trial as one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t gun point, most probably for extracting ransom. As the input disclosed offence under Sections 364, 364A/34 IPC r/w Sections 25/27/54/59 of the Arms Act, the information was forwarded to the police station for its registration and consequential steps. FIR No.10 dated 11.01.2008 under the afore-mentioned provisions of law, accordingly was registered with the Nurmahal Police Station and investigation was initiated, in course whereof, the statement of Gagan Kumar Mahendru as aforestated was recorded under Section 161 Cr.P.C. In his statement Gagan, who claimed to be the victim of kidnapping, stated that on 09.01.2008 Sukhmeet Singh @ Deputy, Gurinder Singh @ Ginda, Jasbir Singh @ Jassi etc. had kidnapped him, tied his hands and bundled him in the dickey of their car, with the dishonest intention of realising ransom and took him in the house of Rupinder Pal Singh from where he was released on 11.01.2008. He claimed to have identified the places where he had been kept captive and also the places to which he had been shifted in between. The statements of the victim and his father Subhash Mahendru were also recorded under Section 164 Cr.P.C. On pursuing the investigation, the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed that the insurance policy of the car stood in the name of Deepak Bhiwani issued on 18.11.2007. Further from the dicky of the car, a driving licence of the victim Gagan Kumar was also retrieved along with one small roll of tape, one scissor and one black colour rope. Investigation divulged that the Hona City car did bear fake number HR 16 F 7337 which was stolen in the intervening night of 30.11.2007/01.12.2007 from Delhi and for which FIR number 255 dated 01.12.2007 was registered with Rajinder Nagar Police Station. Though the Engine number and the chassis number did match, the actual registration number was DL 4C AH 4492. On the completion of the investigative drill, charge-sheet under Sections 364A, 392, 395, 397, 412, 465, 467, 468, 471, 474, 120B IPC and Sections 25/27 of the Arms Act was laid against the accused persons. As hereto before stated, Gurinder Singh @ Ginda died during the trial and the accused Rupinder Pal was acquitted by the trial court. The other co- accused Prabhijit Singh @ Sonu could not be arrested and was declared a proclaimed offender. The investigation however revealed that his mobile number 94636-12914 had been used in the commission of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 at 9.00 a.m. for further discussions. According to the witness, he was there at the site in his car bearing no. PB 08 BA 4700 and as stated by him on oath, at the first instance, two persons came there and boarded his vehicle. The victim was thereafter asked to proceed to the colony where the owner i.e the aunt referred to, used to reside. The witness stated that he took the vehicle to the place as directed. The person sitting by his side then pointed a revolver on his ear. Almost immediately thereafter, a Honda City car, driven at a high speed, pulled up in front of his car, wherefrom 4-5 persons alighted and attacked the victim. The witness stated that whereas one person pointed the revolver on his thigh, the other removed his licenced revolver along with his cell phone, keys of the car and currency notes amounting to ₹ 15,000/-. The witness stated that thereafter a cap was placed on his face and a tape was pasted on his mouth. After some time, his hands were also tied and he was forcibly put into the dickey of the Honda City car. As the victim resisted, he was threatened to be killed with his own revolver. After moving the car for some distance, the abductors burrow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant time was a Municipal Councillor and he knew him from before the incident. He however clarified that he did not have any personal acquaintance/intimacy with him and that he was also not conversant with his voice. He admitted as well, that he knew the full name of the appellant at the time of making of the statement before the police and the Magistrate. He however elaborated that as the accused persons used to address him as Deputy, he did use that name while making the statements. He also claimed to be unaware then that Sukhmeet Singh and Deputy was one and the same person. He also conceded qua his earlier statement that at the time of his release at Nakodar Chowk, he had not seen the appellant Sukhmeet present there. He also admitted that there was no test identification parade held and that he as well did not furnish the physical features of the miscreants to the police. According to this witness, neither the recovered money nor the weapons had been shown to him by the police. He stated that by 24.01.2008, he could come to know the names of all the accused persons from the newspaper. Vis-a-vis the name of Harpal Singh @ Chhota, the witness stated in particular that he did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less than ₹ 1 crore was acceptable to them. The witness further stated that on the next date i.e. 10.1.2008, he received a call from the cell phone of his son at 8.30 a.m., and on the query made, he stated that by then, he could arrange only 90-92 lakhs with great difficulty. This was followed by another call at 10/11 a.m. from the same person enquiring about the amount arranged to which the witness replied that somehow he had been able to arrange ₹ 1 crore and requested the abductors to close the deal. Eventually at 4.20 p.m., through another call, the abductors instructed the witness to fill the money in two bags and take the train Shane Punjab for Delhi . The witness on his request was allowed to be accompanied by one attendant and he was instructed to sit in the last compartment of the train with the caveat that in case he would try to act smart or against the instructions or inform the police, all his family members would be eliminated. He was informed as well that he would be under watch on the train. According to the witness, he took the money in two bags and along with his friend Munish Berry boarded the train from Jalandhar. He stated that on the way, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nform that such initials/names had been inscribed on the packets. He admitted that the FIR was registered on 11.1.2008. He elaborated on the names of the persons and relations from whom different sums of money was taken on loan. He specified the amounts as well. He stated that his statement was recorded by the police on 12.1.2008. PW4 SI Pritam Singh, who at the relevant time, was posted at the Nurmahal Police Station, deposed that he did partake in the investigation and had accompanied the I.O. Inspector Satish Kumar Malhotra. He reiterated that on 11.1.2008, the I.O. received a secret information that the accused persons Sukhmeet Singh, Gurinder, Jatinder and Jaspreet had been seen moving near the office of DIG to surrender before the police whereupon, they were arrested thereat and cell phones were recovered from their possession vide Ex. PF/1 to PF/3. He also stated about the disclosures made by the accused persons following which various amounts were recovered from the places shown by them. Vis-a-vis, Sukhmeet Singh, he stated that the revolver of the victim was also recovered from the living room of the accused. He further testified that on the disclosure of the accused ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the course of his further cross-examination, being neither of any particular significance nor referred to in course of the arguments, are not being dilated upon. PW5 Kashmir Singh, Finger Print Expert and photographer from Finger Print Bureau, Phillaur, stated that on 21.1.2008, he had taken the photographs of the chance prints on the window panes of the front door of the Honda city car bearing HR 16F 7337 and also on the rear mirror fitted thereto. He claimed to have prepared negatives of the chance prints and had compiled the report on the basis thereof which he proved Ex. PW5/A. In cross-examination, he stated that the prints were available on the glass surface and he did not rule out any other type of print. He also stated that the prints collected were of the palm surface of the hand. He also did not enquire as to who had marked the chance prints. PW8 Inspector Satish Kumar Malhotra, S.H.O. P.S., Phillaur, is the investigating officer. He testified that on 11.1.2008, he was posted at Police Station Nurmahal and while on patrol duty, he received a secret information that four persons, who had kidnapped Gagan Mahendrau at gun point and had abducted him in a Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of offense was recovered being parked near the well of accused Ginda at Village Beer being kept camouflage by standing maize crop thereat. The witness also stated that on the search of the car, two iron chains, a small scissor, tape roll, a black colour rope and a driving licence in the name of the victim were recovered from the dickey of the car. The finger print expert also took the photographs of the prints available on the car. That a hole was also detected in the rear seat of the car was mentioned in particular by the witness. He also stated about the arrest of accused Harpreet Singh and Surinder Singh as well, following which the phones mobile were recovered from them. These accused also made disclosures following which recoveries of huge cash kept in plastic envelopes was effected. Apart from getting recorded the statement of the victim and his father Subhash under Section 164 Cr.PC., the witness claimed to have obtained the call details of mobile phones of the accused recovered from accused persons. He also identified the seized articles including the Honda City and Lancer cars at the trial and identified and exhibited other items like, revolver, iron chain, tape roll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 65000/-. The witness stated that the recovered pistol was seized by memo PW23/A on which he along with others put their endorsements by way of attestation. In cross-examination, the witness however admitted that no independent witness was present when the disclosure statement was recorded. He however denied that neither such statement had been recorded nor was any recovery caused on the basis thereof and in his presence. PW24 Sumesh Makkar proved the call details of cell phone number 94636-12914 of Prabhjeet Singh, absconder accused. In this regard, he amongst others, proved the necessary documents to establish that the said accused person had applied for such connection. PW25 Damandeep Singh, Nodal Officer, Vodafone, Essar South Limited, Mohali, deposed with regard to the mobile SIM number 99881-31831 standing in the name of Manjinder Singh r/o VPO Malsian Patti, Saltan Nagar, Jalandhar. Apart from proving the documents, on the basis of which the mobile connection was obtained by the holder thereof as named herein above, the witness also proved computer generated details of the said cell phone for the period 9.1.2008 to 16.1.2008 in the form of a printed copy which, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m from the computer which was under his control and did bear his signature on each of the pages. He conceded however that no certificate of correctness was appended thereto. The witness clarified that the calls were computer generated which did not admit of any manual intervention. He admitted further that the call details did refer to cell I.D. indicating the tower location. According to him, no document was taken into custody by the police from him under his signature. He admitted as well that the documents produced by him do not bear the date of their preparation and further there was no reference of the server therein as well. 6. To complete the narration of the evidence adduced, apposite it would be to briefly survey the testimony of the defence witnesses. DW1 Gurdeep Singh, who was then the Senior Assistant, State Bank of India, New Grain Market, Jalandhar proved the statement of account in the name of Jarnail Singh, father of appellant Sukhmeet for the period 30.6.2007 to 30.6.2008 which disclosed, amongst others that the holder had withdrawn ₹ 10 lakhs from his account on 7.11.2007. DW2 Naginder Singh deposed about the proposed sale of the land of Jarnail Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolvement. Mr. Basant asserted that not only the evidence forthcoming after the arrest of Harpal Singh @ Chhota together with the recovery of cash or fire arm and the Honda City car does not in any way establish any nexus with him and the crime perpetrated, the calls details of the cell phones said to have been involved are per se inadmissible in evidence in the face of apparent non-compliance of the mandatory prescriptions of Section 65B of the Act. The learned senior counsel underlined that the finger prints collected from the Honda City car did not match with that of any of the accused persons sent up for trial and in absence of the TIP, their identity, as participants in the offence, has also remained unproved. The learned senior counsel was particularly emphatic on the aspect that the victim noticeably did not either name or refer to the appellant Harpal Singh @ Chhota in his statements under Sections 161 and 164 Cr.P.C., which were the earliest in point of time, to be one of his abductors and that he sought to improve on him by naming him only at the trial. The learned senior counsel maintained as well that the inexplicable omission on the part of the prosecution to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indictment against all the accused persons convicted, beyond all reasonable doubt. He urged that the prosecution has been successful in substantiating the involvement of the accused persons in the nefarious and willful design of theirs to abduct the victim for ransom and having regard to the gravity of the proved offences, no interference is called for. In particular, he has contended that the defence having failed in its endeavour to de-link the currency notes, seized from the house of Jarnail Singh, the father of the appellant Sukhmeet Singh from the ransom money paid, he is not entitled to any benefit therefrom. 8. We have extended our thoughtful scrutiny to the materials available on record as well as the competing arguments based thereon. Admittedly, the only eye witness to the actual act of abduction is the victim himself who had suffered the ordeal. He thereafter encountered the treatment meted out to him in captivity and is privy too, to the ransom claim made by his abductors to his father. The statement made by the victim (PW1) under Section 161 Cr.P.C. though had outlined the whole incident in the bare essentials, his version under Section 164 Cr.P.C. and at the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with him but also had closely followed his conversion with his father on more than one occasion on the aspect of ransom. Apart from the fact that there is nothing convincing on record to even infer any false implication of the accused persons, we are of the unhesitant opinion that the mere omission on the part of the victim to mention at the first instance the name of appellant Harpal Singh @ Chhota, having regard to the charge of conspiracy and the concerted steps, to actualise the same is of no fatal bearing on the prosecution case, more particularly he having named/identified him at the trial as one of the perpetrators of the offence. In this perspective, the omission on the part of the investigating agency to hold the TIP is not fatal, in the facts and circumstances of the case. In the face of the overall evidence on record, the above purported deficiencies do not at all detract from the veracity of the prosecution case . The evidence adduced vis-a-vis the stage wise recovery of the currency notes, fire-arms, the Honda City car etc. from the successive disclosures made by the accused persons also do establish their complicity in the offence. The testimony of the witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -name Deputy also does not appeal to us. The victim in his deposition has clarified that though he knew Sukhmeet Singh was a Municipal Councillor, but had no personal intimacy with him so as to be able to identify him by seeing him. 9. Noticeably all the recoveries, be it of currency notes, fire- arms, the cars and the seizures of various articles therefrom have been on the basis of disclosures made by the accused persons from time to time which were duly recorded in the presence of the witnesses, as required in law. Not only the Honda City car proved to have been used in the commission of the offence was traced out being parked near the well of the accused Gurinder Singh @ Ginda under the cover of standing maize crop thereat, the seizure, amongst others of the driving licence of the victim from the dicky thereof lends formidable support to the credibility of the prosecution case. In all the cases of recovery, as the evidence demonstrates, the accused persons including the appellants after making the related disclosures had led the investigating agency to the places wherefrom seizures were made. That the seized articles were duly deposited in the appropriate custody and were pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 65B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B(2) had been complied with, in absence of a certificate under Section 65B(4), the same has to be held inadmissible in evidence. This Court in Anvar P.V. (supra) has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. This conclusion of ours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile drawing an inference from the materials brought on record to arrive at a finding as to whether the charge of the criminal conspiracy had been proved or not, it must be borne in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The following extract from the decision in Mohd. Amin Vs. CBI (2008) 15 SCC 49 was quoted with approval: 74. The principles which can be deduced from the above-noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy. As would be patent from the above excerpt that qua a charge of conspiracy, it is not necessary that all the conspirators should know each and every detail of the plot so long as they are co-participators in the main object thereof and it is also not necessary t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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