TaxTMI 
TaxTMI 
2010 (1) TMI 1316
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....ce machinery was further activated. A short while later, that is at about the noon time, Ravi Verma (PW) received a call on his landline telephone No. 226059 installed in his shop telling him that his son had been kidnapped and in case he wanted him to return alive, he should pay a ransom of Rs. 50 Lac and that he would be contacted later. Ravi Verma's request to the caller to permit him to speak with his son was denied. Ravi Verma, greatly alarmed, went post haste to the school and was told that his son had not come to class that day. This information confirmed his fear that his son had indeed been kidnapped for ransom. Sub-Inspector Jiwan Kumar (PW) in the meanwhile reached Shimla Pahari Chowk and met Ravi Verma at about 12.30 p.m. and recorded his statement (Ex.PWWW) and on its basis the offence under Section 364 IPC was converted into one under Section 364A of the IPC. The Sub-Inspector also directed Ravi Verma to arrange an ID caller with a tape recorder and to connect it with the telephone in his shop and to await another call from the kidnapper. These directions were carried out by Ravi Verma and the subsequent conversations were duly recorded. At about 4.00 p.m. Ravi Ve....
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.... grey colour had been parked at 8.30 a.m. in his locality while he was near the main gate of his house awaiting the arrival of a rickshaw to carry children to their school and that he had noticed that the appellant Vikram Singh was sitting on the driver's seat and that in the meantime Abhi Verma had arrived with the appellant Jasvir Singh and the two had got into the rear seat whereafter Vikram Singh had driven towards the DAV school. During the investigation, it further came to light that a few minutes later, that is at about 8.40 a.m., Satish Kumar (PW 19) who owned a shop called New Deluxe Bakers and Confectioners situated at Shimla Pahari Chowk had heard a cry of anguish (Bachao Bachao) while standing outside the shop and on looking that side had seen an Alto Car of silver grey colour without a number plate coming from the side of DAV school at a very high speed and a human foot protruding out of the car window. This information was immediately conveyed to the police on telephone. It further came out during the investigation that one Amit Chohan (PW24), a relative of the complainant Ravi Verma, while was on his way to Kartarpur heard the news on the TV about the kidnapping ....
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....aled the whereabouts of the Alto and Chevrolet Optra cars. The Alto car was recovered from the residence of Naresh Kumar Sharma (PW), its owner. The finger print experts PWs. Gurdip Singh and Kashmir Singh also lifted some finger prints from the car which too were sent to the forensic laboratory. The police party then proceeded to katcha tobba where the Chevrolet car was found parked in front of the residence of one Subhash Kapoor and this too was taken to possession and examined by the two linger print experts. The police also recovered a pass port size photograph of Abhi Verma and two applications for the grant of leave by Abhi Verma from the car and these were taken into possession. In addition the police found a black coloured pouch with the label of Capital Bank containing visiting cards of Jasvir Singh. All the articles aforesaid were duly sent to the forensic laboratory for examination. The post mortem on the dead body was carried out by Dr. Mrs. Gurinder Chawla alongwith a team of two Doctors at about 2.30 p.m. on 15th February 2005 but no conclusive report as to the cause of death was given but after the report (Ex.PZZ) of the Chemical Examiner was received, the Doctors op....
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....e moreso, as all the witnesses were not only chance witnesses but also related to or associates of Ravi Verma, second that the recoveries made at the instance of the appellants under Section 27 of the Evidence Act could not be taken into evidence as it was the case of the prosecution itself that the appellants had been taken into custody at about 8 p.m. on 15th February 2005 whereas the recoveries had been made on 14th February 2005, and that in any case there was absolutely no evidence to suggest Soma's involvement in the kidnapping or the murder and that her case would, at its worst, fall under Section 201 of the IPC as an attempt to destroy evidence, and finally the death sentence was not warranted as the case was based exclusively on circumstantial evidence and did not fall in the category of the rarest of the rare case. 4. These arguments have been stoutly controverted by Mr. Jaspal Singh, the learned senior counsel for the complainant and by Mr. Kuldip Singh the Counsel representing the State of Punjab. It has been submitted that the circumstances essential for conviction on the basis of circumstantial evidence were complete inasmuch that there was evidence to show tha....
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....r of the car owned by him was "Miami Gold" and the very description suggested that it was a shade of Gold and not Grey or Silver, as had been stated by PWs. Naresh Kumar, Baljeet Kumar Saini, Satish Kumar and Kulwant Kaur (PW1), the Clerk from the Office of the DTO, Hoshairpur. It is true that the colour of the Alto Car is said to be Miami Gold but it is significant that in the cross-examination of all the witnesses referred to above and in particular PW3, PW13 and PW19 who had deposed that the colour was silver grey not a single question had been put as to the fact that the car was gold in colour and not grey. The only inference that can flow from this omission in the cross-examination is that "Miami Gold" was in fact a trade name and not an indication of the actual colour of the car. It is also significant that PW's Naresh Kumar, Baljeet Kumar Saini and Satish Kumar had absolutely no animosity against the appellants which could motivate them to give a false statement as to the colour of the vehicle. Naresh Kumar in fact deposed that the car had been taken by Vicky, his son's friend, at about 7.30 a.m. and had been returned at about 10.30 a.m. or so the same morning. This ....
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....suspicion about anything amiss could not have been raised at any stage prior to his return from Chintpurni. Criticism of PW Satish Kumar is equally misplaced. Admittedly, this witness was the owner of a bakery shop at Shimla Pahari and it was while he was outside the shop that he had heard the screams of "Bachao Bachao" and on looking in that direction had seen a car being driven away at a high speed and a human foot protruding out of the car window and on seeing this unusual activity the owner of Laxmi Steels, Satish Kumar's neighbour, had informed the Police on telephone. Further, Satish Kumar clarified that as he was running a bakery which attracted customers from 8.00 or 8.30 a.m. onwards and for that reason it was his practice to open his shop early. It is also significant that this witness was not in any way connected with Ravi Verma, the complainant, and that they were not even known to each other. Mr. Jaspal Singh has also cited Rana Partap and Ors. v. State of Haryana 1983(3) SCC 327 as to the meaning of the expression "chance witness". 3. There were three eyewitnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring ....
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....m and Pentazocine poisoning. Dr. Chawla further explained that Fortwin was the trade name for the chemical Pentazocine and that the maximum normal dose for Fortwin was 0.5 ml to 1 ml. and that anything in excess of 1ml. would be a fatal dose. She further clarified that Chloroform, which was an anesthetic, earlier used during surgery, was not being used any more because of its known toxicity. In cross-examination, however, the Doctor admitted that the quantitative analysis regarding the Chloroform and Pentazocine had not been made by the Chemical Examiner and she further revealed the existence of two pin-point brown coloured marks on the lateral side of the right buttock which was the usual side for the administration of an injection. 9. The evidence of the Medical Board has to be scrutinized in the light of the evidence pertaining to the purchase of the Fortwin injections and the Chloroform. The first witness in this connection is PW4 Anand Kumar the owner of a shop called Scientific Sales Corporation at Hoshiarpur. He deposed that he knew the appellants as they were all residing near his house. He further went on to say that on the 11th February 2005 he had been present in his ....
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....xecution of the conspiracy was taken on the 11th February 2005 at 11.00 a.m. when the Fortwin injections were purchased from Bhanu Aggarwal PW5, the second step was the purchase- of Chloroform at 4.00 p.m. the same afternoon from PW4 Anand Kumar and the third the borrowing of the Alto car from Naresh Kumar on the morning of 12th February 2005. These three transactions are intimately connected with the kidnapping and subsequently the murder of Abhi Verma. In State of Himachal Pradesh v. K.L. Pardhan and Ors. 1987 (2) SCC 17, this Court while examining the concept of criminal conspiracy has observed: In the opinion of the Special Judge every one of the conspirators must have taken active part in the commission of each and every one of the conspiratorial acts and only then the offence of conspiracy will be made out Such a view is clearly wrong. The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for ....
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.... The appellants had thereafter been interrogated and Jasvir Singh had revealed in his statement Ex.PFFF that he had carried the dead body in his Chevrolet Car No. PB-08(T) AL1718 and thrown it in the area of village Daulatpur. This statement was signed by Jasvir Singh and attested by Manohar Lal Verma PW-30, Kulwinder Singh and Shiv Raj Singh, ASI. Vikram Singh and Sonia appellants had made similar statements and they too were duly recorded. The appellants had thereafter disclosed that the Alto Car was parked in the house of Naresh Kumar PW in Bahadurpur Enclave and the police party had reached that place and taken it into possession as well and on a search thereof a black coloured purse Ex.P.34 containing a passport size photograph of the deceased Ex.P36 and two applications for grant of leave Ex.DD and DE were recovered therefrom. The appellants had thereafter led the police party to Mohalla Katcha Tobba and the aforementioned Chevrolet Car had been taken into possession and on a search thereof (amongst other items) a pouch containing visiting cards of Jasvir Singh were recovered. The dicky of the car had also been vacuumed with the help of a vacuum cleaner and the rubble had bee....
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....der Section 24 and complete under Section 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, ''accused person" in Section 24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Pakala Narayan Swami v. Emperor by the Judicial Committee of the Privy Council, "Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation". The adjectival clause "accused of any offence" "is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides. "No confession made by any person whilst he is in the custody of a ....
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....he Code of Criminal Procedure to argue that till the appellants had been arrested in accordance with the aforesaid provision they could not be said to be in police custody. We see that Section 46 deals with 'Arrest how made'. We are of the opinion that word "arrest" used in Section 46 relates to a formal arrest whereas Section 27 of the Evidence Act talks about custody of a person accused of an offence. In the present case the appellants were undoubtedly put under formal arrest on the 15th February 2005 whereas the recoveries had been made prior to that date but admittedly, also, they were in police custody and accused in an offence at the time of their apprehension on the 14th February 2005. Moreover in the light of the judgment in the Constitution Bench and the observation that the words in Section 27 "accused of any offence" are descriptive of the person making the statement, the submission that this Section would be operable only after formal arrest under Section 46(1) of the Code, cannot be accepted. This argument does not merit any further discussion. 13. Some argument has been raised by Mr. Jaspal Singh as to whether (even assuming that Section 27 of the Evidence ....
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....closed that he had kept concealed the dead body in the fields of village Daulatpur and that it had been removed from Darshan Kaur's house in the Chevrolet car belonging to him and the three appellants had further revealed that the dead body had been disposed of in the fields of village Daulatpur and the dead body was recovered and taken into possession by Memo Ex.PGGG signed by Manohar Lal as also Sub-Inspector Jeevan Kumar. We are unable to accept Mr. Sharan's bare submission that the evidence of Manohar Lal and Sub-Inspector Jeevan Kumar should not be believed as they were interested in the successful outcome of the prosecution, as no other material adverse circumstance has been brought to our notice. 17. The matter does not end here. As already indicated above, Ravi Verma had been called on the telephone repeatedly on his landline No. 226059 from Mobile No. 98147 83418. Admittedly, the landline telephone is fixed in the shop of Ravi Verma and it has come in evidence that the card aforesaid had been purchased on 14th February 2005 by Jasvir Singh appellant. PW14 stated that Jasvir Singh had come to him in hurry and demanded a connection which had been supplied to him a....
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....ther. 18. We also find that the prosecution has been able to show that the finger prints lifted by the police officers from the Alto and Chevrolet car belonged to Vikram Singh and Jasvir Singh respectively. It is significant that the Chloroform bottle recovered from Darshan Kaur's residence was also examined and the thumb impression of Jasvir Singh was detected thereon. 19. Mr. Sharan has referred us to the defence evidence in order to prove the alibi of Jasvir Singh and Sonia. Dr. Daljeet Singh, a very reputed Eye Surgeon of Amritsar, has appeared as DW1. He deposed that Sonia had been operated by him on 13th May 2002 and that she had come several times to his clinic for a re-check and that she had visited the hospital on the 11th February 2005 and had been attended by one Jaswinder Singh. When cross-examined, however, the Doctor admitted that though the OPD in the hospital was computerized there was no entry in the name of Sonia as on 11th February 2005. Moreover, even assuming that Sonia had indeed gone with her husband to Amritsar on the 11th of February 2005, as claimed, it was possible for them to go there and return in time to purchase the Fortwin injections and th....
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....act by itself was a relevant consideration in awarding the lesser sentence. It has also been pleaded that the appellants were all young persons and the possibility that they could be reformed during their incarceration could not be ruled out and this too was a factor which had to be considered in awarding the sentence. He has also referred us to Dhondiba Gundu Pomaje and Ors. v. The State of Maharashtra 1976 (1) SCC 162 that an accused of young age should not ordinarily be meted out a death sentence. Reference has also been made by Mr. Sharan to some observations in Bachan Singh v. State of Punjab (1980) 2 SCC 684 that the mitigating circumstance in favour of an accused must also be factored in. It has also been pleaded that the additional circumstance in favour of Sonia was that she was not only young but she was also a lady and as it was possible that she had been influenced into the unpleasant situation by her husband, the death sentence should not be given to her in any case. Mr. Sharan has also placed reliance on two recent judgments of this Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 and an unreported judgment in Sushil Kumar v. State....
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.... doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of 'reverence for life' principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of his doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law endorsed by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others it if suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so "in rarest ....
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....e sheet of the aggravating and mitigating circumstances vis-�-vis the accused had to be drawn up and in doing so the mitigating circumstances had to be given full weight so that all factors were considered before the "option is exercised". In Santosh Kumar's case (supra) this Court further expounded on the propriety and justification in awarding the death sentence. The broad principle that emerges from all the judgments is that in evaluating the category of the rarest of the rare, the facts of that particular case must be given pre-dominant consideration. As noted above, the High Court in the present matter while determining the various factors against the appellants has observed as under (verbatim reproduction): In the instant case, from a careful reading of facts; minute analysis of evidence on records, and due consideration of rival submissions, we notice the following special reasons to hold that this case has acquired enormity (sic) of that kind which brings it in the rarest of rare category and for those reasons, we accept death reference and confirm death sentence: 1) This is a case that involves kidnapping of a school going innocen....
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....ity between parties, therefore, this is a case of cold blooded murder committed only in order to extract a heavy ransom of Rs. 50,00,000/- which is evident from evidence of Ravi Verma (PW27) father of the deceased that every time, while calling on phones, the kidnapper gave him threats that if he wanted his son to be alive, he should immediately arrange for ransom amount of Rs. 50,00,000/-. It appears as the police became active, the accused could not extract the ransom and out of panics, poisoned the boy to death by administering heavy dozes of chloroform and fortwin. However, as accused Vikram Singh @ Vicky was known to the family and the body had seen them, in all probabilities, the accused would not have spared his life in order to destroy evidence even in case of having received the ransom amount. Thus, from very beginning, the accused had kidnapped the boy for his elimination finally in either case (whether ransom amount was paid or not). On the other hand, Mr. Sharan has been at pains to point out that the appellants were young persons, and Sonia a lady as well, who could be rehabilitated and the pre-dominant trend being against the imposition of the death penalty as of t....
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....anjay in cold blood after he had been kidnapped with promise to be given sweets. We, therefore, confirm the sentence of death and the other sentences awarded to Henry by the High Court under Sections 302, 364, 201 and 387 IPC and dismiss Criminal Appeal No. 545 of 1982 filed by him. Moreover, as already indicated, we have the eye witness statement of PW Baljeet Saini with regard to the kidnapping of Abhi Verma from outside the school. 27. Likewise in Mohan's case (supra) which again related to a kidnapping for ransom and murder under Sections 364A and 302 of a young boy aged 10 years, while assessing the aggravating and mitigating circumstances, it was observed that the former far outweighed the others. It was held as under: So far as the appellant Gopi is concerned, he not only did participate by pulling the rope around the neck of the boy, as already narrated, but went to his house and brought a coir rope. After removing the rope from the neck of the boy, he encircled the coir rope again around the boy's neck and the pulled the said rope for about 1/2 a minute and the boy stopped breathing. Thereafter he took out one Keltron TV box from underneath the cot a....