TaxTMI 
TaxTMI 
2016 (11) TMI 1506
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....ith. It has been ordered that all the sentences would run concurrently. 2. We have heard Mr. R. Basant, learned senior counsel for the appellant in Criminal Appeal No. 2539 of 2014, Mr. Subromaniam Prasad, learned senior counsel for the appellant in Criminal Appeal number 388 of 2015 and Mr. V. Madhukar, learned counsel for the State. 3. The records divulge that on 11.01.2008 at about 7.45 p.m., while Inspector/SHO of Nurmahal Police station was on patrol duty, he received a secret information that on 09.01.2008 at about 10/11 a.m., four persons had kidnapped one Gagan Mahendru son of Subhash Mahendru, resident of Mota Singh Nagar, Jalandhar in their Honda City car from near Preet Palace at 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 reco....
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.... with one Qualis car bearing number PB 10 AY 4144 said to have been used by the appellant Sukhmeet Singh @ Deputy, in the commission of the crime. Noticeably, the Honda City car recovered bore engine number 30125 765 and chassis number 377271 standing in the name of one Deepak Bhiwani, s/o Raj Singh Bhiwani, resident of Bhiwani and was of model 2007, as disclosed by the registration certificate found inside the vehicle. The documents recovered also disclosed 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....
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....end Chetan Chopra went to the scheduled place of meeting. The witness stated that at the time fixed, three persons came in a Innova car and thereafter the victim and his friend along with two persons proceeded in the car of the victim to survey the land. After the visit, they parted. The witness deposed that thereafter on many occasions, the same caller made telephone calls to further the deal and eventually, they decided to meet on 09.01.2008 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 rev....
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....ed and that his statements were duly recorded as well. He claimed to have identify the place and also disclosed that he had dropped his driving licence in the dicky of the car. He identified as well the driving licence produced in court along with the iron chains by which his hands were tied and the tape roll by which his mouth was muzzled. In cross-examination, this witness admitted that the appellant Sukhmeet Singh at the relevant 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 ....
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....ours about the progress in the collection of the ransom amount with the insistence that the amount should be paid early, if he wished the welfare of his son. In response to a call received at 9 pm on the same day and on the expression of his inability to arrange more than Rs. 1 crore, the caller asked him to await further instructions. By the next phone call at 10 pm, the abductors informed the witness that no amount less than Rs. 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 Rs. 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....
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....have any personal relationship with him. He conceded that he had not informed the police/Magistrate about the initials and names on the packets of the currency notes. He however claimed that even in absence of such initials/names, he could have otherwise identified the currency notes from the denominations thereof. He however disclosed that his relations from whom money was collected did inform 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....
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....the witness conceded that the arrest memo pertaining to Sukhmeet did not contain either his signature or the signature of any public witness. He however denied that the memo was a forged one. He asserted to have attested the disclosure statement of the appellant Sukhmeet Singh which had led to the recovery of the Honda City car, otherwise kept concealed. His statement 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 en....
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....ese accused persons also made disclosure statements and acting thereon, currency notes were recovered along with a pistol along with a live cartridge from beneath a tree near canal Jandiala. This witness further deposed that the appellant Sukhmeet Singh also made a disclosure statement pursuant whereto, the Honda City car HR-16-F 7337 used in the commission 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 statemen....
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....he case. According to him, appellant Harpal Singh @ Chhota present in the court and who was then in police custody, made a disclosure statement signed by him and further led the police party to the eastern side of Jandiala, Nurmahal Canal, from where he dug out a country made pistol wrapped in a polythene bag together with cash amounting to Rs. 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 Si....
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....aresh Kumar and exhibited the documents with regard thereto separately. In cross-examination, the witness clarified that the cell numbers 98148-81082 and 98553-64086 functioned between 11.1.2008 to 16.1.2008 whereas the others were not put to use after 10.1.2008. He further asserted that the call details had been issued by him 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, Jalan....
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....ied by the materials on record. The learned senior counsel has maintained that the sequence of events, as sought to be unfolded by the prosecution, warrant that the roles of the accused persons allegedly involved be analysed individually in order to determine the nature and extent of their involvement. 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 un....
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....peachable evidence to establish the culpability of the appellants and thus the impugned decision, as a whole, is liable to be set at naught. Per contra, the learned counsel for the respondent-State, has maintained that the evidence adduced when considered in entirety, does establish the 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 m....
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....ven 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 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 ....
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....way of ransom under the threat to the life of victim. We are thus left unconvinced by the defence plea of want of identification of the abductors including the appellants. The omission on the part of the victim to refer to the appellant Sukhmeet by his name instead of his nick-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....
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....ed in a hard disc of the company server, to co-relate the calls made from and to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 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 und....
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.... theory by the statements of co- conspirators, just as they are for the overt acts and crimes committed by their confreres. In a later pronouncement in Mir Nagvi Askari vs. Central Bureau of Investigation (2009)15 SCC 643, it was ruled in the same vein that while 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." A....