Punjab-Haryana High Court
Manjit @ Vicky vs State Of Haryana on 10 February, 2014
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
CRA-D-930-DB-2009 & CRA-D-113-DB-2010 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Criminal Appeal No. D-930-DB of 2009
Date of decision: February 10, 2014
Manjit @ Vicky
....Appellant
Versus
State of Haryana
....Respondent
Criminal Appeal No. D-113-DB of 2010
Date of decision: February 10, 2014
State of Haryana
....Appellant
Versus
Surinder Singh and others
....Respondents
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice Fateh Deep Singh
1. Whether the Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
Present: Mr. J.S. Virk, Advocate and
Mr. R.S.Budhwar, Advocate, for the appellant
in CRA-D-930-DB-2009 and for respondents with
Mr. Rajesh Sethi, Advocate in CRA-D-113-DB of 2010
Tiwana Dalbir Singh
2014.02.20 17:05
I attest to the accuracy and
integrity of this document.
High Court, Chandigarh
CRA-D-930-DB-2009 & CRA-D-113-DB-2010 2
Mr. Pardeep Singh Poonia, Additional Advocate General,
Haryana for respondent in CRA-D-930-DB-2009 and
for appellant in CRA-D-113-DB of 2010
Fateh Deep Singh, J.
On 17.3.2006 around 8.15 PM Narinder Arora (deceased) and his brother Bharat Bhushan Arora PW2 along with their employee complainant Mukesh Kumar PW1 were closing down their premises M/s Arora Plywood in City Kaithal, while the complainant was downing the shutters and Bharat Bhushan was standing nearby and when the deceased had taken out his car bearing No. PB-10-AP-2880 ( in short the Car) from the rear of the shop and had just stopped the car and while Bharat Bhushan was getting the keys from the complainant, two young boys came on a motorcycle, one of them appeared to be aged around 24/25 height 5' 6" and the other aged around 25/26 years with height of 5' 8 " both clean shaven. At that juncture the first boy came near the deceased while the other stood behind the car. The first boy told the deceased that since you had not handed over the ransom amount of Rs 50 lacs and immediately fired shot from his pistol hitting the deceased in the head. Both boys thereafter ran away on their vehicle towards Bhagat Singh Chowk. While the deceased was profusely bleeding, he was rushed in the same very car by his brother and others to the hospital of Dr. Shah from where the deceased was referred to PGI, Chandigarh and died on the way and was declared brought dead. It was on the statement of Mukesh Kumar by way of Ex. PA made before PW45 SI/SHO Sukhdev Singh of Police Station City Kaithal and after Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 3 endorsement Ex. PA/2, present FIR Ex. PA/3 was got registered naming Anil and group of Surender Geong as the persons responsible for this murder. The Investigating Officer after examining the spot of the crime lifted empty cartridge of .9 mm Ex. P18 along with broken pieces of glasses and after preparing them into sealed parcel took the same into police possession through memo Ex. PT. He also prepared inquest report Ex. PE and on police application Ex. PNNN/1, after necessary process by way of Ex.PNN/2 and Ex. PNN/3. The post mortem examination was conducted by Dr. V.K.Sharma PW3 who gave report Ex.PC as to the cause of death being on account of fire arm injury which was ante mortem in nature sufficient to cause death in the ordinary course of nature.
The Investigating Officers who were assigned the investigation from time to time recorded statements of the witnesses and during the course of investigations it transpired that the 33 accused namely Surinder Singh son of Ishwar Singh, Sube Singh, Mahavir, Jitender Kumar, Anil Kumar, Naresh alias Nesha, Jamser alias Jasmer, Darshan Singh, Rajesh Kumar, Gurdeep Singh, Sanjiv Kumar, Surinder Singh son of Ram Dia, Dharambir Malik, Raghbir Singh alias Kala, Sukhwinder Singh alias Kaku, Devinder Pal alias Goldi, Anoop, Anila alias Pilla, Ram Lal alias Lali, Ishwar Singh, Ashok Kumar, Manjit alias Vicky, Baljeet Singh alias Jeeta, Joginder Singh, Surinder Pahalwan, Harjinder Singh alias Fauji alias Balbir Singh, Nagender, Prem Singh, Baljeet Singh, Lakhwinder Singh alias Lakha, Nirmal alias Ladi, Hoshiar Singh and Sushil belong to the gang of Surender Geong carrying on nefarious activities of demanding ransom and similarly Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 4 such activities of robbery and murders. The gang on 14.12.2005 hade made a telephonic call on landline telephone no. 229317 in the shop of the deceased calling upon the deceased for making ransom call of Rs 50 lacs and the caller disclosed his identity as Baljit alias Jeeta resident of Badshikri. Thereafter the deceased had received similar calls on 2/3 occasions calling for ransom and in between some persons had been visiting their shop meeting the deceased. The motive for this murder was on account of non-payment of this ransom amount by the deceased.
During the investigations police made recoveries of mobile phones/SIM cards, telephone calls with relevant documents by way of memos Exs. PL, PL/1, PL/2, PL/3, PL/4, PQ, PR, PS, PS/1, PS/2, PS/3, PV, PX,PX/1, PZ, PAA, PRR,PZZ, PVVV/1, PEE, PHHH/1, PNNN, PYYY, PZZZ, P1/A, P3/A, P4/A, P7, P13, P38/A, P39/A, P41/A, P41/B, P41/C, P42/A, P45/A, P46/A, P49/A consisting of mobile phones Ex. P1 to P3, P8, P11, P17 SIM card Ex. P4, P6 diary/bills of the calls Ex. P5, P7, P12, P13. Rough site plan of these recoveries Ex. PL/5, PL/6, PL/7, PV/1, PHHH/2, PJJJ, P10/A, P50/A, P33/A. During the investigations consequent upon arrest of accused, disclosure statement Ex. PU of Gurdeep Singh, Ex. PY of Naresh Kumar, Ex. PBB of Ashok Kumar, Ex. PDD of Baljit Singh, Ex. PEE of Joginder, Ex. PFF of Surinder Pehalwan, Ex. PGG of Joginder Singh, Ex. PHH of Surender son of Dalip Singh, Ex. PJJ of Surender S/o Ishwar, Ex. PKK of Dharamvir, Ex. PLL of Jamsher, Ex. PMM of Naresh Kumar alias Nesha, Ex. PNN of Dharamvir Singh, Ex. POO of Harjinder Singh, Ex. PQQ of Rajesh Kumar, Ex. PTT of Surender son of Ishwar, Ex. Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 5 PSS of Surender son of Ishwar, Ex. PUU of Anil Kumar, Ex. PXX of Anil Kumar, Ex. PYY of Tilak Raj, Ex. PAAA of Balwinder, Ex. PDDD of Ram Lal, Ex. PKKK of Naresh Kumar, Ex. PLLL of Jangsher alias Kala, Ex. PMMM of Harjinder Singh, Ex. POOO of Nagender Singh, Ex. PSSS of Anil Kumar, Ex. PTTT of Surender son of Ishwar, Ex. P/5/A and Ex. P/6/A of Nirmal Singh, Ex. P/8/A of Lakhwinder Singh, Ex. P/30/A of Manjit Singh, Ex. P/44/A of Baljit Singh, Ex. PHHH of Darshan Singh and Ex. P16/A of Sushil Kumar.
The police from the accused during investigations recovered vehicles consisting of motorcycle Ex. P9, Tavera (SUV) Ex. P10, along with weapons and prepared their site plans of recovery of places Exs P4/1, P4/2, PFFF, PEEE, P2/A, P11/A, P31/A, P32/A, parcels Ex. P15 and P16, bullet Ex. P14 were recovered. It is during the course of investigations, the police recovered documents of previous FIR, Jail record through memos Exs PVVV/2, PXXX, PXXX/1, diary Ex. P7/A, Gate Pass/Bill Ex. P/4/A, Ex. P/3/A, application for registration of the motorcycle Exs P14/A, P15/A, seizure memo Ex. P23/A recovery memos of envelops, Ex. P24/A copy of DDR and special reports Exs P26/A, P27/A, copy of letters Ex. PUUU/B, PUUU/C, PUUU/D besides taking into police possession subsidiary articles and demarcation memos prepared at the behest of the accused regarding these activites, Ex. PCCC, sanction order Exs PQQQ, PRRR, P/9/A, P21/A, P22/A, P25/A, P/28/A, P29/A, P34/A, verification of driving licence Ex. P40/A, report Ex. P41/A, another copy of FIR Ex. P43/A, posting order of Ashok Kumar Ex. P47/A, of Dharmvir Singh Exs.P48/A, P20/A, P19/A and Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 6 the recording regarding physical custody and orders Exs.P/7/A, P/8/A. The empty cartridges which were taken into police possession through memo Ex. PT regarding which scaled site plan Ex. PCCC was prepared and other parcels containing various articles collected were sent to Forensic Science Laboratory and on receipt of reports Ex. P51/A, Ex. P52/A and upon completion of investigation, challans against various accused at various stages were filed in the court and that is what led to innumerable framing of charges at various stages and by that score on account of insolence of various quarters the trial against these 33 accused had been much delayed.
During the trial, the prosecution in its evidence examined 54 witnesses who have proved various aspects of evidence which are being elaborated in the subsequent paragraphs of this judgment.
The evidence of the prosecution oral as well as documentary proved at the trial was put to all the accused in their individually and separately recorded statements under section 313 of the Code of Criminal Procedure and the accused raked up plea of total innocence and their false implication. However, accused did not lead any evidence in defence. Consequent upon hearing arguments through impugned judgment and order of sentence dated 9.3.2009/10.3.2010, learned Additional Sessions Judge, Kaithal acquitted all the accused except appellant Manjit alias Vicky who was found guilty for commission of offences under sections 302 and 387 IPC and has been sentenced as follows:-
"U/s 302 IPC To undergo rigorous imprisonment for Life and to pay fine of Rs 10,000/-. In default of payment of fine to further Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 7 undergo rigorous imprisonment for two years.
U/s 387 IPC To undergo rigorous imprisonment for Five years and to pay fine of Rs 5000/-.
In default of payment of fine to further undergo RI for one year.
It is against these findings, these two separate appeals have been preferred, one by the convict appellant Manjit alias Vicky challenging his conviction and the other by the State of Haryana impugning the judgment of acquittal of the 12 accused namely Surinder Singh son of Ishwar Singh, Surinder Pahalwan son of Dalip Singh, Joginder Singh, Baljeet Singh alias Jeeta, Anil alias Pilla, Ram Lal alias Lali, Darshan Singh, Naresh alias Nesha, Dharambir Malik, Harjinder Singh alias Fauji, Prem Singh and Nirmal alias Laddi. Since both these matters are an outcome of same very trial and case and for preventing prolixity are being heard and disposed off by this common judgment.
Going through arguments that have been advanced by Sh.
J.S.Virk, Advocate assisted by Sh. RS Budhwar, Advocate on behalf of the convict Manjit alias Vicky and alongwith Sh. Rajesh Sethi, Advocate for accused respondents and Shri Pardeep Singh Poonia, Additional Advocate General, Haryana on behalf of the State in both the appeals and appreciating the same in the light of what has been adduced on the record of the case. Undisputedly, it is a case of un-identified assailants numbering two having come on a motorcycle attacking the deceased and thereafter making good their escape. It is not impugned that the physical attributes have been detailed by the eye witness of the occurrence. As is usual for such like cases Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 8 on account of total absence of witness protection programme, the prosecution witnesses rarely stand the ground during the course of trial as self preservation is of utmost in the mind of a human being and the present witnesses are in no way an exception. The courts while evaluating evidence in a criminal trial cannot remain alien to the stark realties of present set up in society. It would not be inappropriate in the dispensation of justice if the courts go a little behind to peep into what has led to such an incident. Thus clearly appreciating the initial hiccups in the investigations the limitations faced by the agency, the court and so many other unforeseen happenings including the intentional and unintentional lapses of investigations which might have its own role to play. Sad enough to observe that not only the principle witness complainant Mukesh Kumar PW1 has resiled from his testimony but so many other PWs including brother of the deceased too have followed suit. No doubt under the golden principle of criminal jurisprudence onus to prove its case always rests upon the prosecution as such has been laid down in Partap vs State of U.P., 1976 CLR 74 (SC). However, at the same time section105 and 106 of the Evidence Act also casts a burden upon the defence where the accused does not throws light at all on the crucial facts which ought to be especially within his knowledge and which could establish his innocence, the court can find him guilty after noting down his omission to adduce explanation or falsity of that explanation. More so it has been very well laid down law while interpreting provisions of section 3 of the Evidence Act that the court is not bound by the conclusions arrived at by the police and has to exercise its judicial discretion Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 9 as is well laid down in Dalip Singh versus State of Punjab, AIR 1977 SC 2895. Thus it crystallizes that evidence of a hostile witness cannot be thrown out and where there is corroboration to the circumstances, the court can accept such evidence in view of the law laid down in Lella Sirinivasa Rao versus State of Andhra Pradesh, AIR 2004 SC 1720. Moreover under the provisions of section 378 Cr. P.C. the High Court can reappreciate the evidence to find out misinterpretation of evidence by trial court and thus a duty is cast on the appellate court to have a relook at the evidence and thus to bring to halt any miscarriage of justice.
No doubt it is well brought on the record and even otherwise it cannot escape judicial scrutiny that the accused belong to a group of extortionists which is substantiated by the previous cases on the record and otherwise the innumerable heinous offences of murder, robbery etc. so committed by them. The report by the Superintendent of Police, Kaithal on the record of this case is based on National Crime Intelligence Unit envisages this group of accused to be notorious and extremely dangerous gang certainly impels the Court to closely examine and scrutinize what has sought to be kept away from the judicial eyes. Sh. Poonia does not counter that immediately upon arrest of the accused who have been put to trial it was onerous duty of the investigating agency to have held test identification parade to lend support to the prosecution story but for the reasons best known to the investigating agency have not been adhered to. Thus, this Court seeks support from the view of the Hon'ble Apex Court enunciated in State of Haryana vs. Surinder Singh and others, 2007 (3) R.C.R. Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 10 (Criminal) 353 where it has been held that identification by a witness in a court in the absence of test identification parade is sufficient enough. Though with much fanfare the counsel for the appellant-convict and accused respondents has sought to advert to the fact that the complainant eye witness has not supported the prosecution story. However, a close look at his examination-in-chief shows that he certainly accepts that while the deceased was sitting in the car the witness has heard fire of a gun shot while he was closing shutters of the shop and saw that shot had struck the head of the deceased who was bleeding profusely. The witness has identified his signatures on his statement Ex. PA and on being declared hostile and upon cross-examination he accepts that the contents of Ex. PA were explained to him by the police and thereafter he appended his signatures on it rather to the mind of this Court sufficiently establishes that it was a statement made by him truly and correctly. Though the witness has denied having ever named Sube Singh, Mahabir Singh, Hoshiar Singh, Sunny and Ishwar Singh having been visiting shop of the deceased and threatening Narinder Arora and Bhart Bhushan that if they do not pay ransom of Rs 50 lacs to the accused Surender (the witness referred to Surender Geong) in Karnal Jail, they would be eliminated but once the witness accepts that it was a voluntary statement made to the police, he cannot be allowed to wriggle out of it at such a belated stage of the trial and similar is the fate of his denial regarding the accused who had fired at the deceased which is materially corroborated by other evidence. The witness accepts that he is aware of the name of accused Surender Geong and that he is aware of innumberable Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 11 criminal cases of murder and extortion pending against him is another feature to assist the Court for the obvious reasons which has led to this witness trying to resile from his previous stand. The witness has identified his signatures on recovery memo Ex. PA/1 and accepts that his signatures were obtained on various papers further establishes the recovery of cartridge empty and broken pieces of glasses by the police from the site of the crime. The other eye witness is PW2 Bharat Bhushan. No doubt as has sought to be projected by Shri Virk on behalf of the defence that he is a highly interested witness which is well controverted on behalf of the State that since both brothers are partners in the Plywood business and at the time of the occurrence were shutting down shop for going home and therefore, his presence at the time of the occurrence is certainly natural and plausible. Thus, this argument that he is a made up witness does not cuts much ice. More so when it is fairly claimed by the prosecution that he has rushed the injured to the hospital in the same very car apparently having been driven by him and the FIR having been lodged without much delay with promptness and in the absence of any animus established on the record by the defence certainly this argument of the defence needs to be brushed aside. The witness has stated that prior to this occurrence on 14.12.2005, they have received a call on their landline no. 229137 installed in their shop which was attended to by the deceased and the caller identified himself to be accused Baljit Singh alias Jeeta of village Badshikri and had raised a demand of ransom amount of Rs 50 lacs. The witness clarifies further that 2/3 calls were received thereafter making demand of this ransom amount. He further Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 12 elucidates that in between some persons have been visiting their shops and talking to the deceased gives an inkling into this ugly activity, whereby the group had been targeting businessmen for money. This witness has identified the person who gave fatal shot as Manjit Singh and has identified him and has further detailed that this accused had exhorted his accomplice that lesson be taught for not paying ransom amount of Rs 50 lacs. So as has already been the law discussed above, this identification in court certainly is a legitimate and legal pieces of evidence qua this accused. Though this witness has tried to keep away from the court the names of Sube Singh, Mahabir Singh, Hoshiar Singh, Sunny and Ishwar Singh and has been declared hostile on State request since this witness accepts having made a statement before the police certainly leads to irresistible conclusion that his statement Ex. PB carries truth. It is further stated by the witness that he had heard name of accused Surender Geong who disclosed his identity and through Baljit alias Jeeta he had heard him calling for ransom amount to be delivered at the residence of Surender Geong and the witness accepts that he has told this fact to the police in his statement Ex. PB. Thus, by this it establishes clearly the motive for this occurrence though it has been very well laid down in the case of Ravinder Kumar versus State, 2002 (1) R.C.R. (Criminal) 227 SC that no doubt motive is a sound principle that every act is done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. However, the witness clearly established beyond any doubt that it was on account of demand of Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 13 ransom amount by the accused has led to this murder of Narinder Arora. More so as is reflected from the suggestion put to this witness on behalf of the accused the occurrence has been admitted whereby a suggestion has been put that the deceased was shot on account of professional rivalry by some unknown persons.
Though PW4 Sham Lal Shopkeeper had identified accused Anil alias Pilla at the asking of his friend Sunil who has tried to get out of this identification by denying that he never signed connection form for providing TATA connection but identifies to be his photograph on the connection form and in his cross-examination accepts that he is running STD Booth for TATA Indicom regarding which copy of ration card and photographs were given by him. Similarly PW5 Joginder who had seen accused Raghbir Singh and Surinder did not support the prosecution story and similarly PW6 Ram Kumar STD Booth owner has sought to wriggle out from the conversation he heard made by accused Rajesh on the PCO and though accepts that on 17.3.2006 at about 12.37 PM, a call was made from his STD Booth on mobile No. 09815475505 by accused Rajesh, Vicky and Naresh and one Joginder demanding their share of the amount for elimination of the deceased and similar is the stand of PW7 Balwant another STD Booth owner who had also before the police identified accused Jasbir alias Kala and Jasmer along with two other young boys Vicky and Naresh alias Nesha having made a call from his STD Booth and has denied the fact that he has sold SIM card no. 9896724568 in the name of Deepak son of Phool Singh at the asking of acquaintance accused Jasmer Singh. So is stance of PW8 Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 14 Dharambir regarding the talk by Ram Lal alias Lali and Surender Singh son of Dalip Singh on the mobile phone in his presence in his shop regarding the elimination of the deceased. Similarly PW9 Sanjiv who has denied that accused Anil alias Pilla was known to him or that he has talked on mobile no. 9215535317 which was used by this accused to ascertain the presence of the deceased at his business premises prior to the occurrence and that fact that he had met Anil alias Pilli prior to the occurrence who had disclosed him that he was going to murder the deceased.
The other material witness that has been examined is PW10 Virender Singh Lamba, Deputy Superintendent, Bostal Jail, who has testied that accused Dharamvir Singh got from solitary barrack no. 5, a mobile phone kept concealed by him recovered through memo Ex. PL and further that on 29.3.2006 from the Jail accused Surender Geong had got recovered a mobile phone wrapped in a polythene bag which was taken into police possession through memo Ex. PM/1 and similarly recovery of mobile phone was recovered from accused Anil in jail which was taken into police possession through Ex. PL/2. It is on the basis of the disclosure statement of accused Anil Ex. PUU, a SIM and a mobile phone was recovered from the Children Ward of the Jail, which was taken into police possession through memo Ex. PL/4 and has proved these mobile phones as Exs. P1, P2 and P3, SIM card from accused Anil as PU, diary got recovered from Surender Geong Ex. P5 and SIM card recovered from this accused as Ex. P6. The other witness PW11 Sunil who has impersonated as Sham Lal for securing a mobile connection for accused Anil alias Pilla and PW12 Malkit Singh, Tea Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 15 Vendor-cum-owner of the PCO did not support the prosecution story and has resiled from the previous statement and so is the fate of PW13 Manoj alias Patson owner of another STD shop regarding talk at his PCO by accused Manjit alias Vicky. Though PW14 Rajiv owner of Distributing Firm of M/s Hutch Company has elaborated that SIM card No. 9813475373 was sold to Hello Electronics, Jind through bill Ex. PQ dated 1.12.2005 bearing no. 1828 and selling of mobile no. 9813495202 to Nehra Enterprises through bill no. 5836 dated 11.1.2006 by way of bill Ex. PR and the fact that he has sent the consumer application form, identity documents of both these and has proved copies as Exs. PS, PS/1, PS/2 and PS/3. The other witness of the investigations i.e. SI Anand Parkash PW15 who had recovered the empty cartridges of .9mm pistol from the place Ex. P18 which was taken into police possession through memo Ex. PT. He has further brought about the arrest of accused Gurdeep Singh on 23.3.2006 and on whose disclosure statement Ex. PU from his conscious and exclusive possession a mobile phone which was taken into possession through memo Ex. PV regarding which rough site plan Ex. PV/1 was prepared. He has also elaborated the arrest of accused Sanjiv alias Sanjju and memo and slips Ex. PX and PX/1 were recovered regarding purchase of mobile and similarly from the possession of accused Naresh on 24.3.2006 on the basis of disclosure statement Ex. PY has got recovered a motorcycle which was taken into police possession through memo Ex. PY/1 make Hero Honda Splender and has proved the rough site plan Ex. PY/2. He has also proved arrest of accused Raghbir alias Kala on 26.3.2006 and recovery of mobile phone from Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 16 his person by way of memo Ex. PZ and similarly arrest of accused Sukhwinder alias Kaku and Devinder Pal alias Goldi the same very day and recovered mobile phone from Devinder Pal through memo Ex. PAA. The arrest of accused Ashok Kumar on 1.5.2006 and his disclosure statement Ex. PVV regarding demarcation of the place and similarly suffering of disclosure statement on 6.6.2008 by accused Baljit alias Jeeta Ex. PCC and another disclosure statement Ex. PDD whereby he got the place demarcated but no recovery could be effected. He has also testified the arrest of the accused Joginder and his disclosure statement Ex. PEE, of Surinder Pahalwan Ex. PFF regarding purchase of mobile phones by them and sad enough even this police official had shown ignorance regarding mobile numbers so recovered in his presence from the accused. The recoveries from accused Surender and Dharamvir and their disclosure statements have been proved by PW16 ASI Ram Kishan not much of help and not much could be proved by ASI Balbir Singh PW17 regarding disclosure statement Ex. PLL made by accused Surinder son of Ram Dia. Similarly ASI Karan Singh PW18 has proved the recovery of PCO slip Ex. P7 on the disclosure statement Ex. PQ of Rajesh Kumar which was taken into possession through memo Ex. PR and similarly disclosure statement of accused Surender son of Ishwar Ex. PSS.
PW19 Ratti Ram Goyat, Retired Superintendent Jail has brought about the interrogation of accused Surender son of Ishwar and Anil Kumar whereby Anil got recovered a mobile phone two SIM cards while in jail which were taken into police possession vide memo Ex. PL/4 and Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 17 recovery of SIM card from accused Surender son of Ishwar Ex. PL/3 which is corroborated by PW20 HC Jitender Kumar by way of disclosure statement of Surender son of Ishwar Ex. PTT and of Anil son of Rajpal Ex. PUU as well as arrest of Anil alias Pilla son of Rajinder leading to recovery of motorcycle bearing No. HR-09-B-0156 which was taken into police possession through memo Ex. PVV. He has similarly proved the interrogation of Anil Kumar alias Pilla on 10.4.2006 and suffering of disclosure statement Ex. PFF by Ashok Kumar son of Dilbag Singh on 1.5.2006 by way of disclosure statement Ex. PBB on 2.9.2006 by Tilak Raj Ex. PYY whereby the accused got recovered Photostat copies of connection record from his shop which was taken into possession through memo Ex. PZ and further establishes the arrest of accused Balwinder Singh on 2.9.2006 and sufferance of disclosure statement Ex. PAAA regarding bill of 21 mobile connections and proved the bill Ex. PBBB which was taken into police possession through memo Ex. PBBB/1. Though on account of apparent lack of technical knowhow and expertise the Investigating Officer by his bonafide ignorance did not choose to avail assistance of Experts to bring about fairly good evidence of the use of these so recovered gadgets from the accused to remain in connectivity with each other however to some extent it stands established so.
Thereafter Ram Niwas, Draftsman PW21 has brought about scaled site plan Ex. PCCC regarding the place of occurrence followed by testimony of SI Dalel Singh PW22 who had joined investigations with Inspector Krishan Lal and it was in his presence accused Ram Lal alias Lalli Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 18 got recovered mobile phone no. 9255137915 from his conscious and exclusive possession from motorcycle from HR-8E-7581 parked in the house of Hoshiar Singh and thereafter the accused had made afresh disclosure statement Ex. PDDD and thereafter got recovered the phone Ex. P8 from the motorcycle Ex. P9 in village Geong used in this murder which was taken into police possession through memo Ex. PEEE. On the basis of court orders on 12.10.2006, Tavera vehicle bearing No. PB-11AC-9817 Ex. P10 was taken into police possession through memo Ex. PFFF which was already in custody of the police in narcotic cases and was used to ferry the gangsters including the hit men after the crime. and there was no worth while cross-examination upon this witness establishes the recovery of these articles at the behest of the accused. Furthermore PW23 EASI Roshan Lal who is a formal witness has authenticated the intactness of the articles through his affidavit Ex. PEEE. ASI Umed Singh PW24 has brought about disclosure statement of accused Darshan Singh Ex. PHHH regarding mobile phone No. 9416182945 Ex. P11 which was taken into police possession through memo Ex. PHHH/1. Similarly Prem Chand PW25 has proved the recovery of mobile with slips, warranty card Exs. PX, PX/1 which were taken into possession through memo Ex. PJJJ and similarly disclosure statement Ex. PU by Gurdeep Singh leading to recovery of only mobile phone which was taken into police possession through memo Ex. PV. It is further proved by this witness that on 24.3.2006 Inspector Kishan Lal on interrogation of Naresh alias Nesha and on the basis of disclosure statement Ex. PKKK of Jasmer alias Kala through his disclosure statement Ex. PLLL Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 19 and on 19.6.2006 Harinder alias Fauji alias Balbir Singh's disclosure statement Ex. PMMM as to harbouring of the co-accused and on demarcation of this place through memo Ex. PMMM/1. The witness has further brought about arrest of Tilak Raj and Balwinder on 2.9.2006 and recovery of bills from accused Balwinder through memo Ex. PBBB/1 and diary from accused Tilak Raj Ex. P12 and taking into police possession another bill Ex. P13 through memo Ex. PNNN from PW Vikas. The prosecution through another witness SI Siromni Singh PW26 had established the preparation of documents during the initial investigations by way of Exs. PA, POA2, PA3, PA4, PE, PNNN/1, PNNN/2 and PNNN/3 and PC and application of the police on the basis of which Dr. O.P.Arya and his team conducted the post mortem on the dead body of Narinder Arora.
ESI Satbir Singh PW27 is a formal witness regarding dispatch of special reports to various authorities and so is PW28 Inspector Balram who submitted the challan while acting as Inspector/SHO against the accused. PW29 Jagdish Chander, Rtd. DSP brought about the investigation conducted by him while he was posted as Inspector CIA Staff and disclosure statement of accused Harjinder Ex. POO regarding demarcation of the place where accused Baljeet alias Jeeta, Rajesh, Joginder and Vicky had stayed as well as memo of demarcation and disclosure statement Ex. PMMM and PMMM/1 where the deceased was shot dead and the arrest of Naginder Singh on 13.7.2006 and his disclosure statement Ex. POOO arrest of accused Hoshiar on 11.9.2006. Thereafter, Inspector Randhir Singh PW30 Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 20 who partly investigated the case has proved the arrest of Darshan Singh, Rajesh Kumar on 22.3.2006 and the disclosure statement of Darshan Singh vide which he got recovered mobile no. 98138495202 through recovery memo Ex. PHHH/1 and its rough site plan Ex. PHHH/2 and brought about the arrest of the accused Ishwar Singh, (father of accused Surinder Geong and Joginder) interrogation of accused Rajesh on 25.3.2006 and his disclosure statement Ex. PQ regarding recovery of STD bill Ex. P7 through memo Ex. PRR and mobile phone Ex. P11. Devinder Kumar PW31 has proved sanction for prosecution of accused Ashok Kumar Warder Ex. PQQQ. PW32 Sat Pal has proved prosecution sanction Ex. PRRR of accused Dharambir Deputy Superintendent, Jail who facilitated and helped these accused Surinder Geong, Anil alias Pilla while in judicial custody to carry on their nefarious activities of making ransom calls and guiding their cohorts outside the jail along with Warder accused Ashok Kumar. Similarly attesting witness of the site of the crime PW33 ASI Ramesh Chand proved recovery of the bullet empty Ex. P18 through memo Ex. PA/1 and similarly submission of final report has brought out by SI/SHO Pale Ram PW34.
DSP Badri Parshad PW35 had proved interrogation of accused Dharambir and on the basis of disclosure statement Ex. PNN proved the recovery of mobile phone Ex. P1 from his exclusive and conscious possession which was taken into police possession through memo Ex. PL and rough site plan Ex. PL/5 and further disclosure statement of Anil Kumar Ex. PSSS leading to the recovery of another mobile phone Ex. P2 by Surender through disclosure statement Ex. PTTT taken into police Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 21 possession through memo Ex. PL/1 and its rough site plan Ex. PL/6. The recovery of the mobile phone Ex. P3 at the behest of accused Anil Ex. PL/2 and its rough site plan Ex. PL/7.
ASI Mohinder Singh PW36 brought about recovery of .38 bore Ex. P15/P16 pistol in another case from accused Rajesh by way of parcel by way of memo Ex. PUUU. Inspector Ravinder Kumar PW37 proved the presentation of challan against Manjit alias Vicky. Thereafter Inspector Rohtash Kumar PW38 has proved the encounter of police with accused Rajesh leading to his death and recovery of pistol used in this murder along with magazine and proved rough sketch Ex. PVVV/1 through recovery memo Ex. PVVV and FIR of that encounter Ex. PVVV/2. Then MHC Bhim Singh PW39 proved safe deposit of the pistol through memo Ex. PUUU. Similarly Devi Dayal, Assistant Superintendent, District Jail, Karnal PW40 proved the jail confinement record of Surender Singh Ex. PXXX and PXXX/1. The call details by way of Ex. PYYY taken into police possession from Ram Kumar PCO owner had been proved by PW41 Inspector Ramesh Chand and the recovery of mobile phone from accused Surender Geong, Anil Kumar and further arrest of accused Anoop Singh and call details of mobile no. 9255280731 of accused Raghbir Singh Ex. PZZZ and the crucial fact that on the day and time of occurrence i.e. on 17.3.2006 at about 6.00 PM there has been talk between mobile phone nos. 9255502094 and 9896362009 and the recovery of motor cycle from Anil alias Pilla bearing No. HR-09-B-0156 through memo Ex. PVV, used for facilitating this crime and disclosure statement by Anil Kumar Ex. PXX leading to recovery of Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 22 mobile phone Ex. P17 through memo Ex. P1/A and the rough site plan Ex. P/2/A and the recovery of the copy of bills in the name of Zamidara Communication, Marks PW41/A, PW41/B and PW41/C taken through memo Ex. P3/A, bill no. 1828 dated 1.12.2005 bill no. 5836 dated 11.1.2006 which was taken into police possession through memo Ex. P4/A. The copy of another FIR Ex. PVVV/2 regarding the interrogation of accused Rajesh, rough sketch of the pistol Ex. PVVV/1 along with cartridges taken through memo Ex. PVVV. He proved arrest of accused Prem Singh, Nirmal alias Laddi and the disclosure statement by the latter Ex. P5/A and another disclosure statement Ex. P6/A leading to the recovery of a diary cum telephone directory Ex. P7/A. Arrest of accused Lakhvinder alias Lakha by way of disclosure statement Ex. P8/A and memo of demarcation Ex. P9/A as to the hide of accused Rajesh, Joginder, Balraj and Nirmal and rough site plan Ex. P/10/A. The invoice of Tavera vehicle Ex. P/11/A, gate pass Ex. P/12/A issued by the Sales Agency which were taken into police possession through recovery memo Ex. P13/A and the taking into police possession through memo Ex. P/15/A. The witness has elaborated the arrest of Sushil Kumar alias Tandon on 13.5.2007 and his disclosure statement Ex. P16/A and has brought about the fact that on the basis of extradition proceedings on 6.6.2008, South Africa Police produced accused Surinder son of Dalip Singh (also referred to as Pehalwan) , Baljeet alias Jeeta son of Dhoop Singh and Joginder son of Ishwar Singh (brother of accused Surinder Geong and son of accused Ishwar) and their formal arrest Ex. P/17/A on court orders Ex. P/18/A. Accused Surender demarcated the place from where they have been Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 23 got executed this plan regarding which rough site plan Ex. P/20/A was prepared and the memo of demarcation of accused Joginder Singh Ex. P/21/A and rough site plan Ex. P/22/A. This witness has further elaborated taking into police possession forged passports of accused Baljeet alias Jeeta and driving licence of Joginder which were taken into police possession through memo Ex. P/23/A. PW42 Inspector Anil Kumar formally investigated the part of the case and PW43 Inspector Rajesh Kumar brought about arrest of accused Manjit alias Vicky and his disclosure statement Mark PW43/A, recovered country made pistol at his behest. PW44 Ishwar Singh Retired Inspector similarly proved the taking into police possession of letters Marks PW44/A, PW44/B, PW44/C and PW44/C taken into police possession through memo Ex. P24/A. The prosecution has brought about the initial investigations through PW45 Inspector Sukhdev Singh regarding statement of the complainant Ex. PA, endorsement Ex. PA/2, rough site plan Ex. P25/A and taking into police possession broken pieces of windscreen of car by way of parcel Ex. PA/1, DDR entry P26/A, another DDR by virtue of which offence of murder was added Ex. P27/A and the bullet lifted from the spot as Ex. P14. Thereafter Inspector Balbir Singh PW46 who after moving application Ex. P28/A had obtained transit warrant of accused Baljeet alias Vicky and identification memo Ex. P29/A, disclosure statement of the accused Ex. P30/A. Recovery of motorcycle bearing No. PB-10-BR-7976 which was taken into police possession through memo Ex. P31/A and another motorcycle through memo Ex. P32/A and the rough site plan Ex. Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 24 P33/A as well as the demarcation memo at the behest of this accused as to the scene of the crime Ex. P34/A. Depositions of PW47 EHC Prem Chand, PW48 HC Sanjay Kumar, PW49 ASI Jagbir Singh and PW50 Ashween Singh by way of affidavits Exs. P35/A, P36/A, P37/A respectively are formal witnesses. The sale of SIM No. 98154-75505 and 9815082705 to Indra Enterprises and Raj Hans Photo Centre has been brought about by PW50 Ashween Singh. Similarly PW51 Pul Dev Raj has brought about sale of SIM card No. 9815082705 to Narinder Kumar son of Ishwar Chand and its consumer application Ex. P38/A and copy of the proof of identity Mark PW50/1/A and similarly Jatinder Sharma PW52 proved the sale of SIm card No. 9815475505 to Vishal Kumar and the documents in support of it Ex. P39/A and Mark PW52/A. Sampuran Singh, Clerk DTO Office, Patiala PW53 proved the driving licences on the basis of police application Ex. P40/A vide report Ex. P41/A in the names of Vikash Sharma, Narinder Kumar and Vishal Kumar under fictitious assumed names and identities and similarly Manish Jain PW54 proved that Hutch was taken over by Vodafone and call details record as Ex. P42/A. PW55 ASI Sham Lal brought about the recovery of narcotics from Tavera vehicle and its FIR Ex. P45/A. Thereafter ASI Rajinder Kumar PW56 proved the arrest of accused Baljeet and on the basis of his disclosure statement Ex. P44/A register of the call details Ex. P45/A was taken into police possession through memo Ex. PO46/A and recovery of motorcycle on behalf of Manjit Singh alias Vicky through his disclosure statement Ex. P30/A which was taken into police possession through memo Exs. P31/A and P32/A and memo of demarcation Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 25 Ex.P34/A. Thereafter, PW57 Zile Singh Warder proved posting orders of accused Ashok Kumar Warder as Ex. P47/A and of accused Dharambir Malik, DSP, Jail as Ex. P48/A. Lastly prosecution from the testimony of PW58 Inspector Kishan Lal proved the investigations, arrest of accused, disclosure statements Exs. PJJ, PSS of Surender, Ex. PLL of Jasmer alias Kala, Exs. PMM, PKK of Naresh alias Nesha and further proved disclosure statement Ex. PKKK of Dharambir and has brought about the recovery of mobile phone through memo Ex. PL on the basis of his disclosure statement Ex. PMM. The telephonic call details which were taken into possession Ex. P49/A and the disclosure statement of accused Surender Ex. PTTT got recovered through memo Ex. PL/1, recovery of mobile from accused Anil Ex. PL/2, disclosure statement of Surinder Ex. PTT, of Anil Ex. PUU. Recovery memos of SIM card and bill from accused Surinder Ex. PL/3, recovery of SIM card by accused Anil Kumar Ex. PL/4, disclosure statement by accused Ram Lal alias Lali Ex. PDDD and recovery of motorcycle taken into police possession through Ex. PGGG and rough site plan of this place of recovery Ex. P50/A and proved empty cartridges recovered at the spot Ex. P18.
Thus from this all it adequately stands reflected that being a case based mere on criminal conspiracy and therefore the evidence so collected detailed above has to be analysed to ensure if the same was worthy of being accepted sufficient enough to nail any of the accused respondents in the appeal preferred by the State. It needs to be kept in mind that in cases Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 26 involving criminal conspiracy as has been laid down in Kehar Singh and others versus The State (Delhi Admn.), AIR 1988 SC 1883 it has been held that generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. Therefore, it was stressed that usually in such matters, prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their common intention and therefore, it is more of a reliance on the circumstances it needs to be stressed here that the Hon'ble Supreme Court in the case of Nazir Khan v. State of Delhi, AIR 2003 SC 4427 which was also relied in Suman Sood @ Kamal Jeet Kaur vs. State of Rajasthan, 2007(3) RCR (Criminal) 119 elucidated that privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Thus, it is not always possible to give affirmative evidence regarding minor details of the criminal conspiracy, the manner of its formation about the persons who participated and the object which the objectors had in mind. Further more in another view reported in Suresh Chandra Bahri vs State of Bihar, 1995 SCC(Cri) 60 while interpreting the provisions of section 120-A and 120-B of the IPC holding that criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. While placing reliance on reliance on Suresh Chandra Bahri's case ibid it was observed by their Lordships that criminal conspiracy differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. It was further provided that Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 27 because of the difficulties of having direct evidence of criminal conspiracy, once reasonable ground is shown of believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes relevant under the law of evidence for proving conspiracy as well as the offences committed pursuant thereto and so is the law laid down in V.C.Shukla v. State (Delhi Admn.) AIR 1980 SC 1382. Similar views were expressed in the case of R.Venkatakrishnan vs. Central Bureau of Investigation, 2009(4) RCR (Criminal) 140. Though the law forbids that an act or action of one of the accused could not be used as evidence against the other. However, exception has been carved out in section 10 of the Evidence Act and in cases of conspiracy, therefore, ensures that act or statement by one of the accused could be used against other.
In this case as has been argued by Shri Poonia, learned Addl. AG that it has come in the evidence of PW9 Sanjiv that Anil alias Pilla was earlier working as an employee with the Arora Plywood but some time prior to this occurrence had left the job at the shop of the deceased and had started his own plywood business and it is not disputed that this ex-employee belonged to village Geong, the village of accused Surender Geong and Joginder Geong who are real brothers and their father accused Ishwar. It is prior to this occurrence the deceased had received written ransom notes by way of four envelops which are proved on the record by way of translated copies and which were handed over to the police by the complainant on 21.1.2006 by way of memo Ex. P24/A. It is very well elucidated in this document that Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 28 on the foot of these ransom notes names of Baljeet alias Jeeta group Surender Geong were clearly mentioned and wherein ransom of Rs 50 lacs had been demanded from the deceased. To the very query of the Court, learned counsel for the accused could not satisfactorily explain what explanation has been put forth to this on behalf of the defence. Merely submitting that the defence denies such document does not instill confidence in these submissions rather it is point of time when birth to this conspiracy has been given. Further more it is there on the record irrefutably that at the time of this occurrence, Surender Geong accused was in judicial custody lodged in Jail at Karnal which is proved by PW40 Devi Dayal by way of Ex. PXXX and PXXX/1. It is also not denied during the course of arguments that accused Dharambir, Deputy Superintendent Jail, Ashok Kumar Warder were posted in the same very Jail and which posting orders are well elaborated by PW57 Zile Singh Warder who has proved posting orders Ex. P47/A of Ashok Kumar Warder and of Dharambir Malik, Deputy Superintendent Ex. P48/A and further the sanction for prosecution of Ashok Kumar has been proved by Devinder Kumar PW31 by way of Ex. PQQQ and accused Dharambir, Deputy Superintendent Jail, by PW32 Satpal by means of Ex. PRRR and which fact is also not controverted during the course of arguments on behalf of these accused. It is there on the record by way of bill Ex. PVVV that Hari Om Sales Agency had sold Hutch connection rechristened as Vodafone mobile bearing No. 9813495202 which was sold by Balwinder proved by PW11 Sunil and which mobile has been used by accused Surender Geong from the Karnal Jail in league with his co- Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 29 accused jail officials Dharambir and Ashok Kumar and has been recovered on the disclosure statement of the accused along with another mobile no. 9416182945 through memo Ex. PJJ. It is also brought about by PW14 Rajiv Kumar having sold SIM card to M/s Hello Electronics mobile phone to M/s Nehra Enterprises through Ex. PQ and PR respectively and has proved documents Ex. P5, P5/A, P5/2 and P5/3 in this regard. It is further elaborated that mobile no. 9255592094 is owned by Anil alias Pilla and who used to receive as per Ex. PHH calls from Surender accused from mobile No. 9896362009. It was on the disclosure statement of Dharambir, Surender and Anil through memos Ex. PKK, PL, PL/1 that burnt mobile phone bearing IMEI NOs. 35836300-49704515, 010640/00/674389/3- 355599001006586 and SIM cards No. 89910-1200-00019-72594, 89910- 1200-00025, 32702, 89910-12000-00025, 32710 were recovered from Surender through memo Ex. PL/3 and Anil through memo Ex. PL/4 which is brought about by memos/site plans Exs. PL, PL/1, PL/2, PL/3, PL/4, PL/5, PL/6, PL/7. Thus it flows from this that co-accused Dharambir and Ashok Kumar who were jail officials and as a part on their duties were supposed to ensure that undesirable articles are not taken into the jail and that unlawful activities do not take place and in this case rather both these officials as has been cogently established after entering into conspiracy with the principle accused provided mobile phones in the jail to achieve their sinister design. Therefore fully aware of the illegal design of the accused these persons helped them establish beyond any doubt that they were part of large ring of conspirators. Though we cannot hide our anguish over the manner of tardy Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 30 and poor investigations especially regarding collection of evidence qua the call details and the mobile phones which makes duty of the Court more difficult. However, circumstances surrounding this crime certainly leads to some credence.
Through PW33 ASI Ramesh Chand along with SI Sukhdev Singh PW45 during investigation had collected broken pieces of windscreen of the car in which the deceased was killed and from near the dead body it recovered through Ex. PA/1 a empty of the bullet Ex. P18 and that during the course of events one of the accused Rajesh was killed in an encounter with the police regarding which FIR Ex. PVVV/2 was registered and from near his dead body a loaded pistol with live cartridges in the magazine were recovered whose rough sketch Ex. PVVV/1 was prepared and was taken into police possession by way of sealed parcel through memo Ex. PVVV. As per report of the Forensic Science Laboratory Ex. P51/A and P52/A that a metallic portion of the fired bullet in a mutilated state and broken pieces of glass were stained with blood and that the empty cartridges Ex. P18 recovered from the scene of the crime had been fired from the pistol Ex. P15/P16 recovered from dead body of accused Rajesh materially establishes that this weapon was used for the murder of Narinder Kumar Arora. Further more PW10 Varinder Lamba Deputy Superintendent in whose presence the mobile phones, SIM cards etc. were recovered from accused Surender Geong and Anil has also established these articles as Exs. P1 to P4 and P6 and the recovery of a diary containing telephone numbers being used by accused Surender Geong as Ex. P5 as well as ASI Ram Kishan Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 31 PW16/PW17 ASI Balbir Singh who have established that it was on disclosure statement Ex. PKK has led to the recovery of mobile phone. Though with much fervor counsel for the accused has sought to argue that all this evidence was not substantial enough to show that the accused were in consistent touch with each other and had demanded ransom from the deceased. However, as has been discussed above based on various citations expounding the position of law as such chain of acts certainly leads to one and only conclusion that these accused were in league with each other. Though PW1 Mukesh complainant who is an employee at the shop had accepted the occurrence having taken place but for the obvious reasons had evaded to identify the assailants but accepts that there had been demand of ransom from the deceased. PW2 Bharat Bhushan brother of the deceased had clearly identified that the caller always disclosed his identity as Baljeet alias Jeeta resident of village Badsikri and has identified Manjit Singh as one of the assailants and though he has also tried to wriggle out of his commitment made by way of statement Ex. PB but accepts that the caller used to identify himself as Baljeet Singh alias Jeeta and had been instructing them to hand over the ransom amount at the house of accused Surender Geong in village Geong and accepts the fact that he had told it so to the police in his statement Ex. PB and therefore, though as denied earlier invariably accepts the name of Sube Singh, Mahabir Singh, Hoshiar Singh, Sunny and Ishwar Singh, Manjit Singh alias Vicky, Baljeet alias Jeeta and Surinder Geong. The faint submission of the defence counsel that after the arrest of the accused no identification parade has been conducted though Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 32 under the law is a prerogative of the Investigating Officer and since the accused have been arrested after a great delay no worth while purpose could be served by holding test identification parade more so when the witnesses had identified the assailants in court leaves no scope to doubt the veracity of this testimony. More so the defence has not controverted the occurrence having taken place in the manner so established by the prosecution. Even PW4 Sham Lal Shopkeeper has admitted the fact that accused Sunil was his friend and on his asking that he wanted mobile connection from TATA Indicom and on the basis of copy of ration card provided by this witness a connection was got released in his name that PW6 Ram Kumar Shopkeeper owner of STD booth has sought to resile but accepts that on 17.3.2006 around 12.37 PM, telephone call was made from his booth to mobile no. 09815475505 which along with PCO slip had been recovered from accused Rajesh (since killed) certainly furthers the case of the prosecution. However, as has been submitted by the counsel for the accused the testimony of SI/SHO PW15 SI Anand Parkash does not brings out any incriminating evidence against accused Gurdeep Singh, Raghbir alias Kala, Jamser alias Jasmer alias Kala, Prem Singh, Nirmal Singh alias Laddi, Ram Lal alias Lali, Harjinder alias Fauji alias Balbir, Naginder, Ishwar son of Het Ram from whom mobile phones and motorcycle have been recovered through memo Ex. PY, PY/1 and PY/2. However, there is evidence to link Naresh alias Nesha from whom motorcycle was recovered on the basis of disclosure statement Ex. PMM. Not much benefit could be derived by the prosecution from statement of PW20 HC Jitender Kumar against Tilak Raj Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 33 son of Bodh Ram and Balwinder Singh. Similarly SI Dalel Singh PW22 could not prove any incriminating evidence qua Ram Lal alias Lali nor it could be established by any means the role of Tavera bearing No. PB-11AC- 9817 Ex. P10 though it has proven in ferrying narcotics pertaining to some other case. ASI Umed Singh PW24 has cogently established the use of mobile phone no. 9416182945 which was taken into police possession on the disclosure statement of Darshan Singh son of Jodh Singh which is legitimate piece of evidence and has already been discussed was used by none other than Surender son of Ishwar in the jail and which was purchased from Balwinder certainly instills that this accused was fully aware of this conspiracy and had been facilitating its execution. Similarly witnesses could not bring out convincing evidence against Harinder alias Fauji alias Balbir, Naginder Singh or any element that he has harboured any accused after or prior to this conspiracy and so is the case qua Tilak Raj, Balwinder Singh son of Khazan Singh. The recovery of mobile phone no. 9813945202 on the disclosure statement Ex. PHHH of Darshan Singh accused by virtue of which he has got recovered this mobile phone from his exclusive and conscious possession is a legitimate piece of evidence and it is well proved on the record that this phone was also used by accused Surender son of Ishwar and has cogently established the place of this recovery by site plan Ex. PHHH/2.
Counsel for the accused could not convince that the arrest of the accused Surinder Pahalwan son of Dalip Singh, Baljit alias Jeeta, Joginder son of Ishwar who had been deported from South Africa and has been Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 34 produced by Inspector A. Munshiami from South Africa Police in consonance with the extradition proceedings Exs. P17/A, P/18/A and from whose possession fake passports on assumed names by impersonation including driving licences were recovered and the passport of Joginder and Baljit alias Jeeta, four driving licences of Joginder were taken into possession through memo Ex. P23/A. By now it is well settled position of law that such fake passports were used by these accused for their fleeing to South Africa to save themselves from the arms of the law and use of Driving Licences issued in impersonation fraudulently and thus had used these knowingly that they were obtained by illegal means under assumed names and seeking support from Gajjan Singh versus State of M.P., 1965 AIR (SC) 1921 are certainly in the knowledge of these accused and are liable for preparing such false documents in furtherance of this conspiracy.
The running away by the accused for a long period of time from permanent abode is certainly proof of guilty mind and therefore is a relevant piece of evidence in terms of section 8 of the Evidence Act.
Thus from all this evidence and the arguments it clearly elicits that accused Surinder Singh son of Ishwar Singh, Surinder Pehalwan son of Dalip Singh, Joginder Singh, Baljeet Singh alias Jeeta, Anila alias Pilla, Darshan Singh, Naresh alias Nesha and Dharambir Malik who are running a ring of extortionists demanding ransom from rich people and to ensure achieving their sinister goal have laid a well knit web in the society and the unfortunate deceased Narinder Kumar Arora who was running plywood Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 35 business in the City of Kaithal inspite of having informed the police of this demand of ransom and the utter insensitivity of the police to save the life of the citizen from such bandits and robbers have looked other way around and even the commission of the murder did not had the audacity to ensure fair and proper investigations when the evidence on the record abounds volumes of the previous conduct of these persons the number of heinous offences in which they were already involved. Though as discussed and detailed above, evidence has come against Sube Singh, Mahavir, Jitender Kumar, Anil Kumar, Jamser alias Jasmer, Rajesh Kumar, Surinder Singh son of Ram Dia, Sukhwinder Singh alias Kaku, Devinder Pal alias Goldi, Anoop, Baljeet Singh son of Lakhmi, Lakhwindeer Singh alias Lakha, Hoshiar Singh and Sushil for the complicity in this crime. However, the appellant-State has not challenged their acquittal before this Court, thus this Court cannot proceed against them under the law. The learned trial court has miserably failed to appreciate this cogent and reliable evidence as well as that in cases revolving around criminal conspiracy, the courts are supposed to apply certain parameters and has absolutely and totally inoblivion have held that identification in courts was not legitimate piece of evidence alien to the fact that it was after a long period of time the accused could be apprehended leaves no worth in holding a test identification parade. The learned trial court has fell into an error that there is nothing before the court as to what transpired amongst the accused before the deceased was murdered merely because there has been remises in the investigations by not linking call details of certain phones does not means or can be construed that there was Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 36 no evidence of conspiracy when at each and every step of the investigations a definite role has come on the record against the accused detailed above and the fact that section 10 of the Evidence Act is an exception to be used against a co-accused for any act done by other co-accused which could lend credence and help in the attainment of their goal. We are not able to find any merit in the appeal of convict Manjit alias Vicky and in the light of the evidence already discussed and detailed above he certainly is guilty of this crime and we thus dismiss his appeal against conviction. The role of accused detailed above namely Surinder Singh son of Ishwar Singh, Surinder Pehalwan son of Dalip Singh, Joginder Singh son of Ishwar Singh, Baljeet Singh alias Jeeta son of Dhoop Singh, Anil alias Pilla son of Rajinder, Darshan Singh son of Jodh Singh, Naresh alias Nesha son of Babu Ram and Dharambir Malik son of Hans Raj has been well elaborated in the evidence of the prosecution and which has lost sight of by the learned trial court which has fell into an error by misconstruing and misreading evidence proved on record. Though the accused had been charged for commission of offence under section 387 IPC for extortion. However, having regard to the fact that under this extortion, the accused have murdered the deceased and being aggravated form of extortion the case falls under section 386 of the IPC and since the nature of the offence under sections 386 and 387 IPC are of similar nature except that there is difference in the degree of the crime, no prejudice is likely to be caused to the accused. Thus we convict them under section 386 IPC instead. Certainly the main findings of acquittal qua Surinder Singh son of Ishwar Singh, Surinder Pehalwan son of Dalip Singh, Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 37 Joginder Singh son of Ishwar Singh, Baljeet Singh alias Jeeta son of Dhoop Singh, Anil alias Pilla son of Rajinder, Darshan Singh son of Jodh Singh, Naresh alias Nesha son of Babu Ram and Dharambir Malik son of Hans Raj are reversed and we accept the appeal of the State of Haryana thereby convicting them for commission of offences punishable under sections 120- B, 302 read with section 120-B and 386 IPC and each of them are therefore, sentenced as follows:-
"U/s 120-B IPC To undergo rigorous imprisonment for Life and to pay fine of Rs 10,000/-. In default of payment of fine to further undergo rigorous imprisonment for two years.
U/s 302 read To undergo rigorous imprisonment for with sec. 120-B Life and to pay fine of Rs 10,000/-. In IPC default of payment of fine to further undergo rigorous imprisonment for two years.
U/s 386 IPC To undergo rigorous imprisonment for Ten years and to pay fine of Rs 10,000/-. In default of payment of fine to further undergo rigorous imprisonment for two years."
All the sentences shall run concurrently.
However appeal filed by the State of Haryana against Ram Lal alias Lali, Harjinder Singh alias Fauji alias Balbir Singh, Prem Singh and Nirmal alias Laddi stands dismissed.
Tiwana Dalbir Singh 2014.02.20 17:05 I attest to the accuracy and integrity of this document. High Court, Chandigarh CRA-D-930-DB-2009 & CRA-D-113-DB-2010 38
Warrants of arrest of these persons be forwarded to learned Chief Judicial Magistrate, Kaithal (Haryana) for compliance.
(Hemant Gupta)
Judge
(Fateh Deep Singh)
February 10, 2014 Judge
'tiwana'
Tiwana Dalbir Singh
2014.02.20 17:05
I attest to the accuracy and
integrity of this document.
High Court, Chandigarh