HARPAL SINGH @ CHHOTA Vs. STATE OF PUNJAB
Section 120 B - Punishment of criminal conspiracy
Section 395 - Punishment for dacoity
Section 471 - Using as genuine a forged document
Section 412 - Dishonestly receiving property stolen in the commission of a dacoity
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 2539 of 2014, Judgment Date: Nov 21, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2539 OF 2014
HARPAL SINGH @ CHHOTA …APPELLANT
VERSUS
STATE OF PUNJAB …RESPONDENT
WITH
CRIMINAL APPEAL NO. 388 OF 2015
SUKHMEET SINGH @ DEPUTY …APPELLANT
VERSUS
STATE OF PUNJAB …RESPONDENT
J U D G M E N T
AMITAVA ROY, J.
The appellants, two out of the six persons, convicted under
Sections 364A, 395, 412, 471, 120B IPC and the appellant-Harpal Singh @
Chhota in Criminal Appeal No.2539 of 2014 also under Section 25 of the Arms
Act, hereby impeach the affirmation of their conviction by the High Court
by the common impugned judgment and order dated 21.04.2014 rendered in a
batch of appeals. Though eight persons including the appellants were
indicted of the charges corresponding to the offences proved, one Gurinder
Singh @ Ginda died during trial and Rupinder Singh was exonerated
therefrom. Following their conviction on the aforementioned charges, the
appellants and other similarly situated have been awarded sentences ranging
from one year to imprisonment for life and fine commensurate therewith.
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 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 police also visited the place from where the victim had
been kidnapped. The Lancer car bearing No.PB- 08-BA-4700 of the victim was
found parked outside Hotel Taj, Jalandhar which was recovered and handed
over to him. The accused persons were arrested between 16.01.2008 and
23.01.2008 and the following mobile phones were recovered from their
possession:
Sukhmeet Singh @ Deputy 98553–64086
(appellant in Crl. Appeal No. 388 of 2015)
Gurinder Singh @ Ginda 98148-81082
Jatinder Singh @ Sappi 98151-58151
Jasvir Singh @ Jassi – 98151– 58161
Harpal Singh @ Chhota 98760–87794
(appellant in Crl. Appeal No. 2539 of 2014 )
Harpreet Singh @ happy. 98158- 54784
Surinder Singh @ Manga 98154-03503
On the basis of disclosure statements made by appellant Sukhbir
Singh @ Deputy a sum of Rs.25 lakhs and a point .32 revolver belonging to
the victim, Honda City Car bearing number HR 16F 7337 lying concealed, as
well as two iron chains with which Gagan, the victim had been tied were
recovered by the investigating agency.
On the same day, Gurinder Singh @ Ginda also suffered a
disclosure statement following which an amount of Rs.11 lakhs was recovered
from his room. Similar disclosure statements were also made by Jatinder
Singh @ Jatin, Jasvir Singh @ Jassi and Harpal Singh @ Chhota, acting
whereupon, huge amounts of cash were recovered together with a country made
pistol with live cartridges.
On 22.01.2008 and 23.01.2008, as well disclosure statements
were made by Harpreet Singh @ Happy and Surinder Singh @ Manga and pursuing
the same, several lakhs of currency notes were recovered from the
almirah/room of these persons along 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, 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 offence.
4. Charges were framed against the accused persons including the
appellants under the above Sections of law to which they pleaded 'not
guilty', whereafter the prosecution examined 27 witnesses. The accused
persons in the course of their statements under Section 313 Cr.P.C. stood
by their denial of the charge. While the appellant Sukhmeet Singh alleged
political vendetta to frame him in the case and that the police had raided
his house and had forcibly lifted Rs. 25 lakhs which belonged to his father
Jarnail Singh and was arranged by him for the purchase of land, the others
generally, but consistently imputed false implication in the offence.
Fourteen witnesses were also examined in defence. The Trial Court on an
assessment of the evidence on record, to reiterate, convicted the
appellants and their co-accused under the above mentioned sections of law.
By the verdict assailed in the instant appeals, the conviction and sentence
recorded by the Trial Court have been sustained.
5. It is considered appropriate to revert to the rival assertions
for better comprehension after traversing the evidence adduced to the
extent unavoidable.
PW1 Gagan Kumar, the person kidnapped, testified that at the
relevant time, he was involved in Real Estate Business with his father
Subhash Chandra (PW2). About 15-20 days before the incident on 09.01.2008,
he received a call from mobile number 9914413696 and the caller introduced
himself to be Ginda and expressed his keenness for effecting a property
deal at Jandiala, District Jalandhar, in course whereof, he offered to
sell the land of his aunt. The witness, though suggested that the caller
ought to get in touch with his father, the latter insisted for necessary
discussion with him. According to the witness, after 2/3 days, another
call was made by the same person and accordingly, they fixed up a time at
9.00 a.m. on the next date, whereupon the victim along with his friend
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 revolver along with his cell phone, keys of the car and currency
notes amounting to Rs.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 burrowed a hole in the rear seat of the car and the victim was
asked to contact his father over a cell phone. Under compulsion, the
victim talked to his father and acquainted him with his state of distress
and requested him to concede to their request for his safety. The phone
was thereafter disconnected. According to the victim, for the whole day,
he remained in the dicky and could hear the exchanges of the occupants who
were addressing each other as Happy, Jassi, Ginda, Deputy and Sabbi. He
further stated that in the night, he was taken to a room with an attached
bathroom where he was allowed to ease himself and thereafter was put on
chains on his hands and feet and was blindfolded as well. He was
thereafter taken to different places and was also offered food. Later, he
was drugged. On objection being raised, he was threatened to be killed
with his revolver. The victim stated that in the next morning, he found
himself tied with iron chain, whereafter he was restored in the dicky of
the car and the miscreants wandered around with him. In between, he was
made to talk to his father, whereupon he repeated his request to do the
needful for his release. Later in the night, the victim was informed by
abductors that as the ransom amount was received, he would be released
soon. He was threatened that in case, after his let off, he would disclose
about the incident to anyone, he would be killed along with his family
members. It was intimated, that they had strong political links and even
if they were arrested, they would come out of custody soon and
appropriately retaliate. The victim was thereafter dropped at Nakodar
Chowk.
The witness identified Sukhmeet Singh @ Deputy, Ginda, Harpreet
Singh @ Happy, Sabbi, Jassa and Harpal Singh @ Chhota in Court to be those
present in the Honda City in the car and thus the perpetrators of the
crime. The witness also narrated, that on 12th, he was taken by the police
to the place from where he was kidnapped 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 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 know him
prior to the incident and that he mentioned his name for the first time in
the court.
A perusal of the statement made by the victim under Section
164 Cr.P.C. demonstrates that the same is substantially identical to the
one on oath at the trial. The sequence of events are in the same order
and in particular, he reiterated the names of Sonu Bhajji, Happy Bhajji,
Ginda, Sabbi and Deputy while referring to the persons in the car, while
he was languishing in the dickey thereof.
PW2 Subhash Chander, the father of the victim deposed that at
the time of the incident, his son was in real estate business with him.
He admitted that his son had mentioned to him about the proposed deal
which was being promoted by a party of Jandiala on which he had advised the
victim to inspect the site so that a decision could be taken lateron. The
witness testified that on 9.1.2008, his son informed him that he had
received a telephone call in connection with the deal and that he had
fixed 9.30 in the morning for the said purpose. That on the same day, his
son had left for negotiations in his Lancer car PB 08 BA 4700, was
stated by him. According to the witness, at about 11.45 a.m. on that day,
he received a telephone call conveying to him that his son had been
kidnapped and further a ransom amount of Rs. 5 crores was demanded for his
release. The witness stated that the caller also threatened him that if the
money demanded was not arranged, his son would be killed. Thereafter, on
his entreaties, he was allowed to talk to his son who pleaded that the
ransom amount be paid as otherwise, his abductors, who were equipped with
deadly weapons, may do harm to him.
The witness stated that thereafter, he received a telephone
call from a mobile phone No. 9814804700 enquiring of him about the
arrangements made about the ransom amount. According to the witness,
subsequent thereto from time to time, he kept on receiving telephone calls
at the interval of 3/4 hours 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 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, he kept on receiving telephone calls from the
abductors to ascertain the stages of the journey. He stated that when the
train reached near Sirhind Railway Station, they directed both of them to
come near the left side door of the compartment and wait for a flash signal
while the train would be reaching Raj Pura and to drop the bags when the
train would slow down near an over-bridge, 3/4 k.m. before Raj Pura so that
the same could be collected by them. The abductors also assured them to
release the victim after the money was received.
The witness stated that as the train slowed down at the place
indicated, they threw away the two bags containing the ransom money and
proceeded towards Delhi. Subsequent thereto, they took a train back to
Jalandhar. Meanwhile, he received a telephone call from the victim that
he had reached home safely. The witness deposed that on 12.1.2008 he along
with victim and 2/3 friends, met the police at Jandiala on their way to
police station and narrated the entire incident. The witness stated that
on 13.1.2008, he received a call from the police that the Lancer car No.
PB 08 BA 4700 has been located near Taj Hotel, Garha Road, Jalandhar and
thereafter on completion of the formalities, the vehicle was handed over to
his son. The witness in course of his testimony, identified the two bags
in which the ransom money had been taken i.e. Ex. P9 and P10. He
mentioned that the currency was in the denominations of Rs. 1000, Rs.
500 and Rs. 100. He also clarified that on 5/6 packets of the currency
notes, he had inscribed initials/names like AS, KK, Om Namah Shivah, Om
Sri Ganeshay Namah, and Jai Hanuman. The witness at the trial,
identified the currency notes as a part of the ransom money. The bundles of
currency notes produced in the court were marked as Ex. P11 to Ex. P68.
In his cross-examination, the witness admitted that though he
knew Sukhmeet Singh at the time of incident as he was a Municipal
Councillor, he clarified that he did not 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 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 appellant Sukhmeet Singh subsequent thereto, along with
cash of Rs. 25 lakhs, one revolver of .32 bore bearing No. B-3211 wrapped
in a plastic packet was recovered from the room of his house. The
witness stated that the cash as well as the other articles
recovered/seized were duly deposited in the malkhana.
He further deposed that on the basis of another secret
information received on 18.1.2008, appellant Harpal Singh @ Chhota was
arrested and acting on his disclosure statement, cash together with one
country made pistol and one live cartridge wrapped in a plastic packet
was recovered from underneath a tree on a Jandiala Road as shown by him.
The witness stated as well about further disclosure statements made by
the appellant Sukhmeet following which Honda City car HR 16 F 7337 was
recovered from near the well of Gurinder Singh @ Ginda at village Bir Pind
kept parked under the cover of standing maize crop. The witness confirmed
the recovery of one driving licence, registration certificate, tape roll,
small scissor and black string from the dicky of car which were duly
seized vide recovery memo Ex. PO/2. The witness also identified these items
when confronted therewith. He also stated about the collection of finger
prints on the car by a finger print expert.
He also stated about the arrest of accused Harpreet Singh and
recovery of mobile phone from him. He referred to a disclosure
statement made by said accused person leading to discovery of Rs. 3.5 lakhs
from the almirah of his house. That a Qualis Car bearing number PB 10 AY
4144 was also recovered on the disclosure statement made by the accused
Harpreet was stated by the witness.
He did similarly mention about the arrest of accused Surinder
Singh and recovery of Rs. 1,05,000 on the basis of his disclosure
statement, from the roof of motor at village Mullewal Arian wrapped in a
plastic envelope. The witness stated as well about the arrest of accused
Rupinder Pal and the recovery of cash from him.
In his cross-examination, 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 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 Honda City car with a purpose to extract
ransom. He deposed to have forwarded the information for the registration
of the FIR and thereafter visited the place of occurrence, where he could
not find any one present. According to him, he visited the same spot with
other police personnel on 12.1.2008 and happened to meet, amongst others,
the victim and his father Subhash Mahendru there. On the basis of a secret
information received on 13.1.2008, the witness stated to have recovered
the victim's Lancer Car bearing No. PB 08 BA 4700 parked near Taj Hotel,
Garah Road, Jalandhar. He summoned the finger print expert and on the
completion of the exercise undertaken by the latter, handed over the car to
the victim on the completion of necessary formalities.
The witness stated that on 14.1.2008, from the call details
collected, amongst others the appellant Sukhmeet @ Deputy was a suspect,
whereupon he was arrested. The witness stated that on 16.1.2008, on the
basis of a secret information, the appellant Sukhmeet was arrested along
with Jatinder, whereupon on their search, mobile phones were recovered.
He also referred to the disclosure statements made by the appellant
Sukhmeet Singh and Jatinder, on the basis of which, cash of Rs. 25 lakhs
and Rs. 10 lakhs respectively were recovered from their residences, kept
in the plastic bags. According to the witness, acting on the disclosure
statement of appellant Sukhmeet, one revolver of the victim was also
recovered from his house. Similarly, after the arrest of Gurinder Singh
@ Ginda, Jasbir Singh @ Jassi, Jatinder Singh @ Sabbi, on the basis of
their disclosure statements, different amounts in lakhs were recovered
from the places indicated by them. A .32 bore revolver bearing No. B-
3211 was also recovered on a later disclosure statement of the appellant
Sukhmeet Singh @ Deputy. Subsequent thereto, according to the witness,
again acting on the secret information, appellant Harpal Singh @ Chhota was
arrested and one mobile phone was recovered from his possession. These
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 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 rolls, currency notes etc. The
witness, in course of his testimony mentioned that on every occasion of
seizure, he had completed the necessary legal formalities in connection
therewith.
In his cross-examination, the witness admitted that the victim
had in his statement before him not mentioned particularly about Harpal
Singh @ Chhota, He also admitted, that no TIP of the accused persons had
been conducted. According to him, he did make an application for such TIP,
but the same was dismissed as the accused persons refused to participate in
the process. He denied the suggestion, that the appellant Harpal Singh had
not refused to take part in the TIP. He admitted of a press conference
held on 17.1.2008, in which Senior Superintendent of Police, Jalandhar had
participated but expressed his ignorance as to whether in the news item
dated 18.1.2008, it was suggested that there was a possibility of recovery
of a country made pistol. According to this witness, this news item was got
published by the accused persons. He denied the suggestion that no
pistol/cartridge was recovered from the house of the accused Harpal Singh
@ Chhota. The remaining statements made by this witness in the cross-
examination are not of any added significance and further have also not
been referred to or relied upon in course of the arguments.
PWs 10, 11, 12, 14, 16 are those, who on oath, stated to have
lent different amounts to the father of the victim to meet the ransom
demand. Of these witnesses, PW 14 in particular, claimed to have put his
identification marks on the packets of currency notes like KK, AS, Jai
Hanuman etc. and on the basis thereof, he identified at the trial, the
same when shown to him. The common trend of cross- examination of these
witnesses had been to elicit from them that there was nothing in writing
to endorse such loan and that there was no transaction routed through
the bank as evidence thereof.
PW23 H.C. Kamaljit Singh deposed that on 23.1.2008 he was a
member of the police party, in-charge of the investigation of the 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 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 asserted was the true extract of the relevant data
created in the usual and ordinary course of business and stored in the
hard disc of the company server. He exhibited the call details as Ex.
PW25/C.
Though this witness was formally cross-examined, not even a
suggestion was made that the call details so proved, were inadmissible
in law due to non-compliance of the requirements of Section 65B of the
Indian Evidence Act, 1872 (hereinafter to be called as “the Act”).
PW26 Sunil Rana, Nodal Officer, Bharti Airtel Limited, Mohali,
aside the necessary records with regard to the applications pertaining
to SIM number 98151- 58151 recovered from accused Jatinder Singh and
standing in the name of Iqbal Singh, 98154-03503 standing in the name of
accused Surinder Singh, 98150-29026 in the name of Davinder Kumar, 98760-
87794 of Jaspal Singh, 98760-63085 of Amrik Singh, 98766-81782 of Pavittar
Singh, 98158-54784 of Varinder Singh and 98723-00707 of Pradeep Singh,
also proved the call details pertaining to these cell phones for the
period 8.1.2008 to 31.1.2008 and exhibited the corresponding documents.
This witness stated that the call details proved, were computer generated
and in the shape of printed copy which were true extracts of the relevant
data created in the usual and ordinary course of business and stored on the
hard disc of the company server.
In cross-examination, the witness expressed ignorance with
regard to the names of the accused persons and further admitted that
though the tower numbers qua the calls were not mentioned, the tower cell
I.Ds. were referred to.
PW27 Soaravdeep Singh, Nodal Officer, Spice Communications
Limited, Mohali proved the location list of all the towers of his company
during January 2008 with the cell I.D. of various towers and exhibited the
said document as Ex. PW27/A. He also proved the call details for the
period 9.1.2008 to 16.1.2008 relating to mobile SIM numbers 98140-60441,
98148-81082 (recovered from accused Gurinder) and 98553-64086 (recovered
from appellant Sukhmeet) and 99144-16396 of Naresh 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, 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 Rs. 10 lakhs from his account on 7.11.2007.
DW2 Naginder Singh deposed about the proposed sale of the
land of Jarnail Singh situated at village Rasoolpur for Rs. 32 lakhs and
further that on the basis of an written agreement, he had paid by way of
Rs. 8 lakhs by way of advance on 6.12.2007 and further Rs. 6 lakhs on
21.12.2007 to Jarnail Singh. The witness however admitted that due to some
financial compulsions, the finalization of the deal had to be deferred.
In cross-examination, the witness conceded that the stamp papers of the
agreement had been purchased by Jarnail Singh, 1/2 months earlier thereto.
He however denied the suggestion that the written agreement Ex. D2
referred to by him was a fabricated document.
DW3 Jarnail Singh, father of the appellant Sukhmeet Singh
in substance testified that the false implication of his son in the case
was motivated by political rivalry. He deposed that on 14.1.2008, the
police raided his house and and had taken away Rs. 25 lakhs which he had
kept for purchasing land near Jalandhar. According to him, out of the
said amount, Rs. 10 lakhs had been withdrawn by him from the bank and that
the rest had been deposited with him by way of advance money for selling
his land to Naginder Singh and Manmohan Singh. According to him, the
agreement for sale of his land had been scribed on 6.12.2007 on the stamp
paper purchased by him.
DW8 Sushil Kumar on oath stated that he belonged to the
Congress Party and accused Jatinder Singh @ Sabbi was his supporter. He
also referred to recent confrontations with the members of the rival
political party during some elections for which criminal cases had also to
be registered. According to the witness, accused Jatinder Singh @ Sabbi
had been falsely implicated in the case.
7. Mounting challenge to the decision impugned, Mr. R. Basant,
learned senior counsel arguing for the appellant in Appeal No. 2539 of
2014, has insistently urged that having regard to the evidence adduced by
the prosecution, the complicity of the accused Harpal Singh @ Chhota
remains unproved. According to him, the charge of this accused being
either a part of the alleged conspiracy or a partner in the execution
thereof, is belied 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 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 Chetan
Chopra, the friend of the victim, who had accompanied him in the first
round of discussion on the land deal, laid as a preface according to the
prosecution, culminating in the abduction, renders the charge, doubtful.
According to Mr. Basant, the examination of the appellant Harpal Singh @
Chhota under Section 313 Cr.P.C. had been general and omnibus without
laying the specific incriminating circumstances against him, thus, denying
him the opportunity to explain the same. On this count as well, the
impugned conviction is unsustainable in law and is liable to be set-aside,
he urged. In buttressal of the plea against admissibility of the calls
details, the learned senior counsel has placed reliance on the decision of
this Court in Anvar P.V. vs. P.K. Basheer and others (2014) 10 SCC 473.
Mr. Subromaniam Parsad, learned senior counsel for the
appellant in Criminal Appeal No. 388 of 2015 in supplementation repudiated
the testimony of the victim in particular in identifying appellant Sukhmeet
@ Deputy to be one of his abductors. He has urged that it having been
admitted by the victim that the appellant Sukhmeet was known to him from
before the incident, reference about him by his nick-name Deputy, renders
his testimony to this effect wholly untrustworthy. The learned senior
counsel has similarly dismissed the recovery/seizure of currency notes,
fire-arms and the Honda City car in particular, as unworthy of any reliance
or significance, besides being effected without adhering to the legally
prescribed procedure, therefor. Referring to the evidence of DW1, DW2
and DW3 in particular, about the seizure of cash from the house of Jarnail
Singh, the father of appellant Sukhmeet Singh, Mr. Prasad has insisted that
this amount had no nexus at all with the ransom money, said to have been
paid. He discarded as well the endeavour on the part of the prosecution
through PW14 to identify some of the currency notes on the basis of
initials/names written on some of the packets containing the same.
According to the learned senior counsel, the prosecution has utterly failed
to adduce unimpeachable 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 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 are adequately elaborate to project the whole gamut of the
development, commencing from his forcible abduction till his release.
There is as such no mutually mutative inconsistency in the three renditions
of his, so as to render the prosecution case untrustworthy and discardable
on all counts. True, it is that the victim in his statements under
Sections 161 and 164 Cr.P.C. did not specifically name Harpal Singh @
Chhota, while naming the other abductors who were the occupants as well of
the Honda City car in the dickey of which he was abducted, he did identify
and involve this appellant/accused during his testimony at the trial. Not
only, in our comprehension, it is likely that in his bewildered and
perplexed state of mind at the relevant point of time, he might have
omitted to name Harpal Singh @ Chhota, in the face of the other
overwhelming evidence and materials on record, nothing much turns thereon
in favour of the defence.
The progression of events as unveiled by the testimony,
in particular of the victim and supported by his father PW2, reveals that
the first caller to initiate the negotiations for the land deal to which
the victim was drawn, was Gurinder Singh @ Ginda. The victim in his
deposition has in details narrated the developments thereafter which do
indicate the keenness on the part of the negotiators to entrap the victim
in the bargain, by gradually building his confidence in the same and in
the proponents. These endeavours, as the prosecution has asserted, really
were the build up steps as a part of the conspiratorial scheme to
eventually culminate in the abduction of the victim for realisation of
ransom in return. Noticeably the perpetrators did not betray any haste
on their part and designedly took their time to strike at the opportune
moment.
The evidence of 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 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 to the above
effect authenticate that the procedure prescribed by law for effecting
such seizures had been complied with. The factum of each discovery based
on the disclosures of the accused persons is not only a relevant fact under
Section 27 of the Act but also noticeably has not been very seriously
disputed by the defence. These seized articles have been produced and
identified in the court by the witnesses as well. The testimony of the
lenders and that of PW14 in particular, identifying some of the packets of
the currency notes by the initials or the names as labelled by him also
cannot be lightly ignored. PW2, the father of the victim, apart from
stating generally about the abduction of his son and his release has
however in minutest details described the particulars of the ransom calls
received and his desperate endeavours to collect the amount to the extent
possible within the dead line of time to save his son in distress. The
witnesses examined by the prosecution as the lenders of different amounts
not only were referred to by this witness in his deposition, to reiterate
they also endorsed to have responded to his clarion call.
Having regard to the series of frightful experiences which
the victim had to encounter during his captivity of a period of almost two
days in the scary company of his abductors and the fearful moments that he
had to pass under the constant threat of being killed by them, as
threatened from time to time, it is natural that he must have had
sufficient opportunity to note their features to enable him to identify
them even by their looks at a later point of time. That the abductors,
during the relevant time, had intimidated the victim as well as his father
that if the ransom amount demanded is not paid in time, the hostage would
be done away with, has been stated on oath by both of them in categorical
terms. The manner in which the victim was abducted and was shifted
from place to place parallely following up the demand of ransom under the
threat of his elimination leaves no manner of doubt that they had resorted
to a plot to extract a handsome amount by 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, 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 produced at the trial and identified by
the witnesses are also matters of record.
10. It is no longer res integra that the “fact discovered” as envisaged
under Section 27 of the Act, in consequence of any information received
from a person in the custody of a police officer, embraces the place from
which any object is produced and the knowledge of the accused as to this
provided the information given relate distinctively to the fact, as had
been held by the Privy Council in Pullukuri Kotayya and others vs. King
Emperror, AIR 1947 PC 67. This enunciation, hallowed by time, has been oft
quoted with approval by this Court in a plethora of subsequent
pronouncements while interpreting the scope and purport of the above legal
provision.
Amongst others in Bodhraj @ Bodha and Others vs. State of
Jamu & Kashmir (2002) 8 SCC 45, it has been elucidated that the doctrine
is founded on the principle that if any fact is discovered in a search made
on the strength of any information obtained from a prisoner, while in the
custody of a police officer, such a discovery is a guarantee that the
information supplied by the prisoner is true. It had been held that the
information may be confessional or non inculpatory in nature, but if it
results in discovery of facts, it becomes a reliable information.
It is unnecessary, in view of such a settled propounded
legal postulation to multiply authorities on the point. Suffice it to
state in the backdrop of the state of law on the admissibility of the
information of a person accused of any offence in the custody of a police
officer so far as it relates distinctly to the fact thereby discovered,
the irresistible conclusion in the facts of the case in hand is that the
disclosures made by the accused persons leading to the recoveries and
seizures are indeed relevant facts in support of the charge levelled
against them.
11. Qua the admissibility of the call details, it is a matter of
record that though PWs 24, 25, 26 and 27 have endeavoured to prove on
the basis of the printed copy of the computer generated call details kept
in usual ordinary course of business and stored 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 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 is inevitable in view of the exposition of law
pertaining to Sections 65A and 65B of the Act as above.
12 Be that as it may, on an overall assessment of the entire
gamut of evidence, we are of the comprehension that the charges against
the accused persons including the appellants stand proved beyond reasonable
doubt even sans the call details. To reiterate, the gravamen of the
imputations levelled against them is that of conspiracy and abduction of
the victim pursuant thereto for ransom by detaining him under the threat
to cause death or hurt and thereby to compel his father to meet their
demand.
13. As it is, as has been exposited by this Court on umpteen
occasions, conspiracy requires an act i.e. actus reus and an accompanying
mental state i.e. mens rea. Whereas the agreement constitutes the act, the
intention to achieve the unlawful objectives of the agreement comprises the
required mental state. This Court in Ferozuddin Basheeruddin and Others
vs. State of Kerala (2001)7 SCC 596 held that conspiracy is a clandestine
activity and by the sheer nature thereof, an agreement to that effect can
rarely be established by direct proof and must be inferred from
circumstantial evidence of cooperation between the conspirators. It has
been enunciated that conspiracy is not only a substantive crime but also
serves as a basis for holding one person liable for the crime of others
where application of the usual doctrines of complicity would not render
that person liable and thus the test of the role of a co-conspirator
would be decisively significant in determining the liability of the
others in the face of the supervening fact that the crime was performed as
a part of a larger division of labour to which the accused had also
contributed his efforts. Qua the admissibility of evidence, it was
proclaimed that loosened standards prevail in a conspiracy trial and
contrary to the usual role, in conspiracy prosecutions, any declaration by
one conspirator made in furtherance of a conspiracy and during its
pendency, is admissible against each co-conspirator. It was thus ruled
that conspirators are liable on an agency 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.”
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 that all of them
should participate from the inception of the stratagem till the end, the
determinative factor, being unity of object or purpose and their
participation at different stages. Such is therefore the encompassing
sweep of culpability of an offence of conspiracy, if proved, even from the
established attendant circumstances.
14. Having regard to the proved facts and the state of law, adverted
to hereinabove, we are of the considered view that the prosecution has
been able to prove the charges levelled against the appellants. Both the
courts below have analysed the evidence in the correct perspectives and
in the face of the conclusions recorded on the different aspects of the
imputations levelled against them, we are of the opinion that no
interference is called for with the impugned judgment of conviction and
sentence recorded against them. The appeals thus fail and are dismissed.
Registry is directed to transmit the original record to the Trial Court
immediately.
…...........................................J.
(A.K. SIKRI)
…..........................................J.
(AMITAVA ROY)
NEW DELHI;
NOVEMBER 21, 2016.
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