Delhi District Court
State vs . 1. Chattar Singh Pincha @ Jain S/O ... on 19 August, 2011
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 23/11
Unique Case ID No.02405R0628642008
State Vs. 1. Chattar Singh Pincha @ Jain s/o Jattan Lal Pincha
R/o FB5, IInd floor, Shivaji Enclave,
Raja Garden, New Delhi.
2. Manoj Kumar @ Babu s/o Subhash Chand
R/o B522, Raghubir Nagar,
Delhi.
3. Miraj Hussain Khan s/o Riyaz Hussain Khan
r/o Mohalla Hati Khana, Immam Bada,
PS Kotwali, Pilibhit, UP.
Date of Institution/filing :15.07.2008.
FIR No. 204 dated 25.03.2008
U/s. 365/364A/302/201/120B/34 IPC
P.S. Dwarka.
Date of reserving judgment/Order :06.08.2011
Date of pronouncement :19.08.2011.
SC No.23/11 Page 1 of 33
JUDGMENT
1. The abovenamed three accused have been facing trial for the offences punishable u/s 120B IPC, u/s 365 IPC read with Section 120B/34 IPC, u/s 364A r/w 120B/34 IPC, u/s 302 r/w 120 B/34 IPC and u/s 201/120B/34 IPC. They are accused of having kidnapped one Sh. Balbir Singh from Dwarka, New Delhi for ransom and after killing him having disfigured his face and thrown the dead body in a distant place in District Rohtak, Haryana, in order to conceal the crime.
2. It is the case of the prosecution that accused Chattar Singh Jain, the mastermind behind the kidnap and murder, was a close friend of the deceased Sh. Balbir Singh and he hatched a plan alongwith the other two coaccused to kidnap the deceased for ransom as he knew that the deceased was a rich person of Dwarka, being Chairman of a private school i.e. MBD Arya Model School, Purana Palam Road, Kakrola, New Delhi and also a property dealer. Accused Chattar Singh was a family friend of the deceased and he remained in touch with the family members of the deceased in order to know about their actions and activities.
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3. Prosecution further alleges that on 23.03.2008, the three accused went to the office of Balbir Singh (deceased) at Dwaka and accused Chattar Singh asked him to bring a bottle of whiskey, pepsi and water etc. After fetching these things, when the deceased was talking to some on phone outside his car, Chattar Singh mixed some intoxicating tablets in his glass of whiskey, on taking of which deceased became unconscious. Thereafter on the instructions of Chatter Singh, accused Manoj drove the vehicle to Rohtak where Chattar Singh with the help of other two accused strangulated the deceased by a plastic rope and dumped the dead body of Balbir in a field in District Rohtak, Haryana. Accused Chattar Singh disfigured the faces of deceased by hitting it with bricks to avoid identification of the dead body. Thereafter, the accused abandoned the Wagon R car of the deceased in District Bhagpat, UP and also threw away the mobile phone of the deceased at Tatri Bagpat Road near Railway Station of Bagpat. The accused, then, made ransom calls to a relative of the deceased on 03.04.2008 and 08.04.2008.
4. It is also the case of prosecution that a male dead body had been discovered in fields of village Lakhan Majra, District Rohtak, Haryana in the morning of 24.03.2008, which later on came to SC No.23/11 Page 3 of 33 be known to be that of Sh. Balbir Singh when the police approached the concerned police station on 16.04.2008, persuant to disclosure statement of accused Manoj. It may be noted here that the dead body had already been cremated and only its photographs and clothes had been preserved in the concerned Police Station.
5. Evidently, there is no eye witness to the crime. The accused have been implicated only by reason of last seen evidence, mobile phone conversation between three accused inter se on the night of incident and thereafter and other circumstantial evidence.
6. After committal of the case to this Court, following charges were framed against the accused on 27.03.2009: "That all of you accused persons prior to 23.03.2008 and thereafter in Delhi and outside Delhi agreed with each other to do or caused to be done an illegal act i.e. Abduction of Balbeer Singh for ransom and for committing his murder and also for causing disappearance of evidence of the said offence in order to screen each of you from the punishment and besides the abovesaid agreement, all of you did the said acts in pursuance of the said agreement to commit SC No.23/11 Page 4 of 33 the offences of 365/364A/302/201/34 IPC punishable with death or imprisonment for life and thereby committed an offence punishable u/s 120B and within my cognizance.
Secondly, on 23.3.2008 at about 7 pm all of you in furtherance of your abovesaid criminal conspiracy and in furtherance of your common intention abducted Balbeer Singh from Delhi with the intention of causing said Balbeer Singh to be secretely and wrongfully confined and all of you have thereby committed an offence punishable u/s 365 IPC r/w 120B/34 IPC and within my cognizance.
Thirdly, on the abovesaid date, time and place, all of you accused persons in furtherance ofyour criminal conspiracy abducted Balbeer Singh and kept him in detention after abduction in order that said Balbeer Singh may be put to death and demanded ransom of Rs. One crore from the relatives of Balbeer Singh to release Balbeer Singh and thereby committed an offence u/s 364A r/w 120B/34 IPC and within my cognizance.
Fourthly, on the abovesaid date, time and place in furtherance of your criminal conspiracy after abducting Balbeer Singh for the ransom all of you accused persons committed murder of Balbeer Singh intentionally causing the death of Balbeer Singh and thereby committed an offence punishable u/s 302 r/w 120B/34 IPC. SC No.23/11 Page 5 of 33
Fifthly, all of you accused persons after committing the aforesaid offences namely that Balbeer Singh was abducted and detained for ransom and thereafter he was murdered, the offences punishable with death or imprisonment for life has been committed, caused the evidence connected with the said offence i.e. Murder to disappear with intention to screen each of you from legal punishment and thereby committed an offence punishable u/s 201/120B/34 IPC and within my cognizance."
7. The prosecution examined 51 witnesses to prove the charges against the accused. The statement of accused u/s 313 Cr.P.C. was recorded on 22.07.2011 wherein they denied their involvement in both kidnapping as well as murder of the deceased. They, however, chose not to lead any evidence in defence.
8. I have heard ld. APP for the State, ld. Counsels for the accused and have perused the entire material on record. All of them took me through the voluminous evidence recorded in this case as well as the exhibited documents.
9. Ld. APP strongly argued for conviction of the accused for SC No.23/11 Page 6 of 33 the kidnapping and murder of Balbeer Singh. According to him, it is established from the evidence on record that the deceased was last seen in the company of the accused on 23.03.2008 from 6 pm to 9 pm and the deceased has been strangulated to death soon thereafter, which only points to complicity of the accused in the crime. He also submitted that the conduct of the three accused in remaining in touchh with each other on their phones after the crime also leads to the inference of guilt on the part of the accused. He would further submit that it has been proved that the ransom calls were made by accused Manoj to the relative of the deceased from a P.C.O. in Moradabad, UP.
10. Per contra, both the ld. defence Counsels i.e. Shri Rohit Yadav advocate for accused Chattar Singh and Sh. Manohar Lal Advocate for the other two accused argued that the accused are innocent and have been framed in this case. They would submit that, in fact, the prosecution has failed to prove the incident of kidnapping and murder of Balbir Singh. According to them there is no evidence on record that the dead body which had been discovered at Lakhan Majra, was that of Sh. Balbir Singh and it may be that Balbir Singh, is still alive and he has feigned his disappearance and death in collusion SC No.23/11 Page 7 of 33 with his family members to get a huge life insurance claim.
In re.Kidnapping of Sh. Balbir Singh
11. Prosecution case is that Balbir Singh left his home at 7 P.M. on 23.03.2008 in the company of the three accused in his Wagon R car No. DL9CK9233 and thereafter did not return home. Balbir Singh's wife PW2, called accused Chattar Singh the next morning i.e. on 24.03.2008 to enquire about her husband, who told her that Balbir Singh had dropped him at Metro Station on 23.03.2008 at 9 pm. In the evening of 24.03.2008, PW2 called PW1, the elder brother of Balbir apprising him about the disappearance of Balbir, who then lodged a complaint at PS Dwarka in this regard, which he proved as Ex. PW1/A.
12. PW5 had agreed to purchase a plot of land owned by Balbir Singh and the deal had been arranged through a property dealer namely Deepak Gahlot. He deposed that a meeting had been fixed in this regard in Deepak's office on 23.03.2008 at 7.30 pm. He reached Deepak's office at about 7.40 pm and found Balbir Singh and accused Chattar Singh present there besides Deepak himself and another SC No.23/11 Page 8 of 33 property dealer PW9. The deal was finalized for Rs. 17,000/ per sq. yards and he paid Rs. One lac as advance to Balbir Singh. The testimony of this witness is corroborated by PW9. However, PW9 added that Balbir was accompanied by two other accused also besides accused Chattar Singh. He identified all the three accused in Court.
13. PW14, office boy in the office of PW9, also is a witness to the presence of the three accused with Balbir Singh in the office of PW9 at 7.30 pm on 23.03.2008. He too identified the accused in Court.
14. As per the testimony of PW5, PW9 and PW14, the meeting lasted for about one hour i.e.till 8.30 p.m. What happened thereafter to Balbir Singh and the persons accompanying him i.e. the accused is not known to them.
15. PW24 has deposed that on 23.03.2008, Balbir Singh accused Chattar Singh alongwith two other persons came to his shop at about 8.45/9 p.m. in Wagon R car No. DL9CK9233. He was standing outside his shop at that time. All four persons got down from the car. He talked to Balbir. Balbir told him that he is going to drop SC No.23/11 Page 9 of 33 the other three at Dwarka Mor Metro Station by his car. He further stated that they left his office at 9 p.m.
16. It can be said that the deposition of PW2, PW5, PW9, PW14 and PW24 establishes that Balbir Singh was in the company of the three accused in the evening of 23.03.2008 from 7 p.m. to 9 p.m.
17. The wife of Balbir Singh (PW2) has testified that accused Chattar Singh had come to her house alongwith her husband on 23.03.2008 at 7 pm and she had offered water also to Chattar Singh. From her deposition, it appears that she knew accused Chattar Singh before hand. I find the conduct of this witness very suspicious and far from being clean and above board. When her husband did not return till late hours of the night, say till 11 pm or 12 midnight, it would have been natural for her to get into state of fear and anxiety and to start looking for her husband or atleast inform her nearest relatives about her husband's disappearance. She did not do either. She even does not enquire from accused Chattar Singh about her husband till next morning.
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18. What makes the conduct of this PW2 more uneblievable and ironical is that despite that accused Chattar Singh ttelling her on 24.03.2008 at about 8.40 am that Balbir had dropped him at Metro Station at 9 pm the previous night, she did not show any signs of panic or worry for her husband. She, throughout the day, neither informs police nor any of her relatives. She did not set out in search of her husband. It is in the evening that she called PW1 and apprised him about the disappearance of Balbir.
19. As per the prosecution case, landline telephone No. 65148212 was installed at the house of Balbir from which PW2 had made calls to accused Chattar Singh and PW1 on 24.03.2008. PW17 also has deposed that aforesaid telephone connection is in his name but was being used by his maternal uncle Balbir Singh. Call details of this landline telephone are on record. These provide a very disturbing picture regarding the conduct of PW2. Three calls were received on this telephone number in the intervening night between 23.03.2008 and 24.03.2008 from one and the same mobile No. 9212755628. First one was at 11.54 pm and lasted for 1277 seconds i.e. about 21 minutes. Second call was received at 12.37 am and lasted for 1800 seconds i.e. 30 minutes. Third one was at 1.07 a.m. and lasted for SC No.23/11 Page 11 of 33 1389 seconds i.e. about 22 minutes. The odd hours of the night at which the calls were received and their unusual long duration cannot be ignored. If Balbir Singh was not in the house, as he had disappeared, the calls were received by none other than his wife i.e. PW2. She had maintained a mischievous silence about these suspicious calls. Who was the person, she spoke for such long in quick succession at such odd hour of night, when her husband had not returned home by then and why did not she disclose about these calls to the police. Ironically, the police, despite obtaining these calls details from the service provider, did not suspect anything fishy about these calls and did not make any investigations in this regard. The call details also reveal that numerous calls have been received on this phone and made from this phone throughout the day on 24.03.2008 but PW2 does not apprise anybody about the disappearance of her husband.
20. The aforesaid suspicious conduct of PW2 makes it difficult to believe that Balbir Singh had not returned home in the evening of 23.03.2008 after parting with the accused. An impression is gathered that either Balbir Singh was present in his house throughout the night or his wife PW2 was aware of his whereabouts. SC No.23/11 Page 12 of 33
21. It is the case of the prosecution that WagonR car of Balbir Singh was recovered from District Bhagpat, UP on 25.03.2008. It was seized by PW40 SI Sunil Kumar vide seizure memo Ex. PW8/A in presence of PW8. According to PW40, PW1 had come to Police Station on that day at about 2.30/3 p.m. saying that he had received a telephone call from Bhagpat informing him that WagonR car of Balbir was lying abandoned in Village Palli, District Bagpat, UP. PW1 had stated nothing about all this in his testimony.
22. In his cross examination, PW40 admitted that family members of the deceased directed them and helped them to locate the said car on reaching Bagpat, UP after consulting somebody on phone. He could not tell the telephone number which was being contacted but stated that it related to a poultry farm owner namely Sunil.
23. How can a person who finds an abandoned car would come to know whose car it is, unless he recognizes the car and knows its owner. From the testimony of PW40, it is not clear who, infact, had discovered the abandoned car of Balbir and how was he related to Balbir. In this regard, testimony of PW8 is very material. PW8 is also named Sunil Kumar and is the brother of PW2 i.e. brother in law SC No.23/11 Page 13 of 33 of Balbir Singh. He has stated in his cross examination that his sister PW2 told him in the evening of 24.03.2008, that Balbir's car is parked at a place near Bagpat. This statement of PW8 solves the puzzle.
24. PW2 knew on 24.03.2008, itself that her husband's car is lying parked in Bagpat. She informs her brother PW8 about the same, who leads the police party to that place on 25.03.2008 when the car is seized. It is amazing how could PW2 presage that her husband's car is lying abandoned in Bagpat. This leads to the inference that either he car had been driven to that place by her husband herself and she was in constant touch with him or her husband was with her and they both had got the car driven to that place by somebody else in order to fake the kidnapping.
25. I fail to understand how the police officials fell into the well laid trap of PW2 and believed her version of the incident without verifying the same by conducting a thorough investigation. Either the investigating officer was an incompetent one or made shoddy investigations with a pre conceived notion in collusion with PW2. They did not make any attempt to lift the fingerprints from the SC No.23/11 Page 14 of 33 steering and other parts of the car to see, who drove it or, who sat in it lastly.
In re: Dead body found at Lakhan Majra
26. In this regard testimony of PW10, PW11, PW31 and PW33 is material. PW10 was the sarpanch of village Kharainti, PS Lakhan Majra, District Rohtak, Haryana in March, 2008. He was informed by a villager on 24.03.2008 at 9.30 a.m. that a male dead body was lying on the road leading to village Garor. He alongwith ex Sarpanch of the village (PW11) visited the spot and found the male dead body lying there. They informed PW33, who was posted as ASI in PS Lakhan Majra at that time. PW33 recorded this information as DD No. 22 (Ex. PW33/A) and also registered FIR No. 65/08 (Ex. PW33/B) in this regard.
27. The testimonies of these witnesses further reveals that they alongwith PW31 (HC Satish Kumar of PS Lakhan Majra) and some other police officials went to the spot. PW33 called a photographer, who took photographs of the dead body which are Ex. PW2/P1, Ex. PW2/P2 and Ex. PW2/P3. As per further deposition of SC No.23/11 Page 15 of 33 PW33, he lifted blood stains from the spot, seized blood stained earth control and sent the dead body to PGI, Rohtak to be preserved for 72 hours for identification. He got published the photographs of the dead body and the details of deceased through radio, TV and newspaper. He also sent messages to other police stations of Haryana and Police stations of neighbouring States. He, thereafter got the postmortem of deadbody conducted and took into possession some sealed pullindas handed over to him by the doctor. He sent the exhibits to FSL, Madhuban, Karnal, Haryana and handed over the dead body to Nagar Parishad, Rohtak on 26.03.2008 for cremation.
In re.: Identification of the dead body
28. The investigating agency at Delhi came to know about the death of Balbir Singh for the first time on 16.04.2008, when accused Manoj was arrested and he allegedly made a disclosure statement detailing the manner in which they kidnapped Balbir Singh, murdered him and threw his dead body at some place in District Rohtak. The disclosure statement was recorded by PW44 Insp. K.P. Singh and has been proved as Ex. PW44/C. Perusal of the disclosure statement shows that accused Manoj did not mention the exact place in District SC No.23/11 Page 16 of 33 Rohtak where they had allegedly thrown the dead body, he merely stated that he can show that place.
29. PW44 has deposed that said information was passed on to the relatives of Balbir Singh and they were asked to reach Rohtak byepass, if they wanted to accompany police party. He alongwith PW43 ASI Ravinder and some other police officials reached Rohtak byepass where they were joined by three family members of Balbir Singh, from where accused Manoj lead them to the road leading to Khairanti and Girawad village from Lakhan Majra, where the dead body had been thrown. From there they went to PS Lakhan Majra where they came to know about FIR No. 65/2008 and the recovery of a deadbody in their area on 24.03.2008. Photographs of the dead body were shown to them which the relatives of the Balbir Singh i.e. PW13 (Rattan Singh), PW15 (Jai Om ) and PW25 (Harpal) identified to be that of Balbir Singh.
30. It is apparent that when the police party lead by PW44 left Delhi on 16.04.2008, they had no clue about the fact that a dead body had been recovered at village Khairanti, Lakhan majra and an FIR No. 65/08 has been registered there in this regard. According to SC No.23/11 Page 17 of 33 PW44 and PW43, they were following the directions of accused Manoj. However, PW25 has testified that on 16.04.2008, his aunt (PW2) received a call from one police official asking them to reach Rohtak to identify the clothes, shoes and photographs of a dead body which had been recovered within the jurisdiction of P.S. Lakhan Majra. This gives an impression that the police as well as PW2 had already knowledge, before leaving Delhi, that a dead body had been recovered in Lakhan Majra. Further, PW43 has stated in his cross examination that till the time, they met the family members of Balbir, they were not aware to which place they are proceeding. It becomes evident that the police party was not proceeding as per the directions of accused Manoj but the family members of Balbir i.e. PW13, PW15 and PW25 lead them to village Khairanti. Such deposition of PW43 reinforces the doubt that PW2 and her relatives were, before hand, aware that a male dead body had been found at village Khairanti and the police was acting as per their directions.
31. PW13, PW15 and PW25 have deposed that on being shown the photographs of the dead body, clothes and sandal, they identified those to be of Balbir and accordingly concluded that the dead body was of Balbir. What intrigues this Court is how did these SC No.23/11 Page 18 of 33 witnesses knew what clothes had been worn by Balbir on 23.03.2008, when he was allegedly kidnapped. They were not with him in that evening. The clothes could have been identified by Balbir's wife only but she did not accompany police to Lakhan Majra. Further it is apparent from the testimony of PW33 that these clothes and sandal were in an unsealed condition. He nowhere states that the clothes and footwear of the dead body had been sealed by him and those were shown to these three witnesses in the police station after breaking the seal. These clothes and sandal were brought to this court also in unsealed bag when shown to PW13, PW15, PW25 and PW33 etc. during their deposition. Thus it is difficult to believe that these were same clothes and sandal found on the dead body and their manipulation cannot be ruled out. The manipulation becomes apparent from the deposition of PW4, the doctor, who had conducted post mortem of the dead body. He stated that the dead body was wearing only a white colour kurta payjama, an off white colour vest and a black colour underwear. He specifically deposed in his cross examination that the dead body was snot wearing any sandals and wondered how the sandals have come in picture. This shows that the clothes and sandal have been planted in collusion with the Police. Besides how could the identity of the dead body be established by SC No.23/11 Page 19 of 33 such type of clothes which form a general dress in North India. The aforesaid three witnesses have not mentioned any specific mark oon these clothes which could have established that these are of Balbir Singh only. Interestingly these clothes have been never shown to PW2, not even during her testimony in Court. The identification of dead body on the basis of the said apparel and footwear becomes a farce.
32. PW33 has stated in his examination in chief that he had also preserved a ring, found in one of the fingers of the dead body. PW4 also has stated that he found a metallic ring in right middle finger of the dead body. The ring, of course, could have been a crucial piece of evidence for the identification of the dead body. PW33 also states that he showed the said ring also to PW13, PW15 and PW25 as also the police party from Delhi. The ring seems to have been conveniently lost/withheld by the police for some ulterior reasons. It has not been produced in this court nor shown to the aforesaid identification witnesses. It may be that the said ring may not have supported their claim that the dead body was that of Balbir Singh.
33. Now coming to the photographs of the dead body Ex. SC No.23/11 Page 20 of 33 PW2/P1, PW2/P2 and PW2/P3. The dead body found in village Khairanti, to which these photographs pertain, was seen by PW10, PW11, PW33, PW12 (the photographer, who took these photographs) and PW4 (the doctor, who conducted the post mortem of the dead body). All of them have consistently deposed before this court that the face of the dead body was beyond recognition and the exact face could not be made out. They say that the face of the dead body had been completely disfigured. PW4, who having conducted the postmortem must have observed the dead bodyy closely and minutely, has said in his cross examination that the facial features of the dead body were distorted and not identifiable. This makes me wonder how PW13, PW15 and PW25 could, on looking at the photographs of such a distorted and disfigured face, could tell that the dead body was that of Balbir. In their testimonies they have not disclosed what prominent distinctive feature did they notice in the photographs to opine so confidently that these are of Balbir's face. It becomes evident that they also did not recognise the dead body appearing in these photographs but stated that these are of Balbir as they had been tutored to say, so. Interestingly these photographs, though, collected from PS Lakhan Majra on 16.04.2008, were not shown to Balbir's wife (PW2) till 21.04.2008. Even PW2 did not try SC No.23/11 Page 21 of 33 to contact police till that day to have a look at the photographs. It seems that without looking at the photographs, she was convinced that her husband is dead and these photographs are of his dead body. This speaks volumes about the conduct of PW2. She also has stated in her examination in chief that the fact of the dead body appearing in photographs had been badly defaced but somehow she identifies it to be that of her husband.
34. Even the age and length of the aforesaid dead body does not match the age and height of Balbir Singh as mentioned by PW2 and other relatives. Balbir's wife states that the age of her husband was about 55 years, when he disappeared. She gives his height as 168169 cms. PW7, who claims to be the childhood friend of Balbir Singh has testified that Balbir was stout built and about five feet six inches (165 cms.) in height. The postmortem report prepared by PW4, albiet, mentions the age of the dead person to be around 40 years and its height as 183 cms. I cam conscious that the age of the dead person given by PW4 cannot be relied upon as he was not conducting the age determination test and he has given only the approximate age. However, the length of the dead body given by him is accurate as per measurement. It can be said that height of Balbir Singh mentioned by SC No.23/11 Page 22 of 33 PW2 and PW7 is only approximate and could vary. True, but by how much. Not by full six inches i.e. 15 cms. The difference of the six inches in the height of Balbir (given by PW2 and PW7) and the length of the dead body (mentioned in postmortem report) is too big and material to be ignored.
35. The investigating agency could have resorted to a conclusive and foolproof method of identification of the dead body in order to ascertain whether or not it was of Balbir Singh? That was DNA profiling. PW4 has clearly stated that he had preserved the sternum and teeth of the dead body in a sealed jar (for DNA profiling, if need arose) and handed over the same to the Police. The DNA could have been easily extracted from these body parts of the deceased and matched with that of the Balbir's children or his brother (PW1). Why that was not done is not discernible.
36. In my opinion, there was no evidence before the investigating agency to conclude that Balbir Singh has died and the dead body found in village Khairanti was his dead body. SC No.23/11 Page 23 of 33
In re: Ransom calls received by PW3
37. Ransom calls have been received by PW3, who is the nephew of Balbir Singh. He has testified that he received the first call on 03.04.2008 on his mobile phone No.9818303165 when the caller enquired his name only and disconnected the phone. He further stated that he received a call from the same number again on 08.04.2008 when the caller told him "Yadi apne chacha ko chahte ho to ek crore rupees ka intezaam kar lo or yadi paise nahin doge to tumhare chacha ko jaan se maar denge".
38. The story of the aforesaid ransom call seems to be fabricated and far from being true, for more reasons than one.
39. Firstly, accused Chattar Singh was well known to the family of Balbir Singh. Even Balbir's wife had talked to him on 24.03.2008 in the morning. So he had the telephone number of PW2 and logically the ransom call should have been made to PW2 or at the most to Balbir's brother PW1. Why should the kidnappers make ransom call to a distant relative (PW3) of Balbir Singh and that too when PW3 is living separate from the family of Balbir as admitted by him in his cross examination.
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40. Secondly, it is seen generally and it seems logical also that ransom call is made within one or two days of the kidnapping. In the present case the ransom call is alleged to have been made after about two weeks of the kidnapping. It is also intriguing that the kidnappers killed the kidnapped person soon after kidnaping, waited for two weeks and then made the ransom call. If, in fact, the kidnapping was for ransom, why would the kidnapper kill the person soon after kidnapping and how would they prove to his relatives that he is alive in order to get the ransom money. This also makes the story of kidnapping and ransom calls a fake one.
41. Thirdly, there is one single ransom call dated 08.04.2008 received by PW3. What happened thereafter. Why did not kidnappers persist on their demand for ransom. Allegedly, the first accused to be arrested in this case was Manoj on 16.04.2008. Why did not the accused call again PW3 or some other relative of Balbir demanding ransom till 16.04.2008. No answer is coming forth.
42. Fourth and the last reason for disbelieving the kidnapping for ransom theory carries as much weight as the first three.. Call records of the mobile phone of PW3, on which he received ransom SC No.23/11 Page 25 of 33 call, are Ex. PW48/D and the certificate u/s 65B of Evidence Act in respect of the same is Ex. PW48/G. Prosecution case is that he received a call from STD PCO NO. 05916990780 on 03.04.2008 when the caller asked his name only and disconnected the phone. PW3 has confirmed the same in his testimony but could not tell the telephone number from which he received the call. However, the call records show that a call was received on the mobile phone of PW3 on 03.04.2008 from the aforesaid PCO at 5.45 pm and thereafter seven calls have been made from mobile phone of PW3 on the same PCO number between 6.09 p.m. and 6.27 p.m. The calls are of different duration. One made at 6.15 p.m. lasted for 199 seconds i.e. More than three minutes. PW3 has maintained a mischievous silence about these calls in his deposition. The IO also seems to have either not noticed these calls or ignored the same.
43. PW3 is alleged to have received the ransom call on 08.04.208 from telephone No. 05813254671. The call details Ex. PW48/D show that it was made at 2.47 p.m. and lasted for 84 seconds i.e. more than a minute which means that the caller did not only utter the ransom sentence mentioned by PW3 in his examination in chief but the conversation was little longer, which has not been disclosed by SC No.23/11 Page 26 of 33 this witness for reasons best known to him. The call details further show that two calls have been made on the same day from mobile phone of PW3 to same telephone No. 05813254671 at 3.16 p.m. and 3.18 p.m. respectively. The first one lasted for 19 seconds and the second one for 73 seconds. Neither PW3 nor IO has explained anywhere why these calls were made.
44. It can be safely gathered from aforesaid conduct of PW3 that there is no truth in the alleged receipt of ransom call by him and it has been stage managed.
In re.Analysis of the Mobile Phones of three accused.
45. It is the case of prosecution that all the three accused were in constant touch with each other through their mobile phones in the night intervening between 23.03.2008 and 24.03.2008. When it is the case of prosecution also that all the three accused together took part in kidnapping and killing of Balbir Singh, I wonder where was the occasion for them to talk to each other on mobile phones. The two versions of the circumstances given by the prosecution are contradictory to each other besides being unbelievable. SC No.23/11 Page 27 of 33
46. Regarding other calls made by the three accused to each other after 24.3.2008 on their mobile phones, it is difficult to say that they were talking about the kidnapping and murder of Balbir Singh and nothing else as the content of the calls is not before the court. They may have been friends with each other and talking to each other on various other subjects/topics.
47. As per the own case of prosecution accused Chattar Singh made a last call on the mobile phone of Balbir Singh 9868852413 on 23.3.2008 at 9.11 p.m. Prosecution case also is that Balbir Singh was in the company of the accused from 7 p.m. onwards and was kidnapped by them at about 9 pm. This means that Balbir Singh was with accused Chattar Singh from 9 p.m. onwards also. Then where was the occasion for accused Chattar Singh to call Balbir Singh at 9.11p.m. It leads to inference that Balbir Singh may have separated from the accused at 9 p.m. and gone somewhere else.
In re.: Disclosure statements made by the accused and pointing out memos prepared at their instance.
48. All the three accused are stated to have made disclosure SC No.23/11 Page 28 of 33 statements confessing their complicity in the kidnapping and murder of Balbir Singh. The disclosure statements have no evidentiary value and merit no consideration as no recovery has been effected pursuant to those statements.
49. It was argued that the accused have pointed out the places where they left the dead body of Balbir Singh, where they abandoned his car and where they threw his mobile phone. These are Ex. PW13/A, PW43/B, PW44/H, PW44/C, PW43/C, PW45/A, Ex. PW45/B, PW 43/D and PW44/E. These pointing out memos loose their significance in view of the manner in which the car of Balbir appears to have been recovered and the manner in which the place, where a male dead body was found in village Khairanti appears to have been found by the Police, as discussed by me in earlier part of this judgment. These pointing out memos patently seem to be fabricated and far from being genuine.
In re: Faulty investigations
50. This is a classic case where the investigation has not only been faulty, sham and bogus but the investigating agency i.e. Delhi SC No.23/11 Page 29 of 33 Police has danced to the tunes of the relatives of Balbir Singh, who is alleged to have been kidnapped and killed on the night intervening between 23.03.2008 and 24.03.2008. In fact, I may tread further by saying the investigation in this case has been namesake only. The place where the car of Balbir Singh was lying abandoned was known to his wife (PW2) on 24.03.2008 itself and she communicated this information to the Police. The place where male dead body had been found in village Khairanti, Rohtak, was known to PW2, PW13, PW15 and PW25 beforehand. They lead the police to that place and not accused Manoj.
51. Despite all this Police did not suspect anything foul and kept on acting as per directions of these persons. It seems that the Police was not functioning with that degree of honesty, integrity and uprightness with which they are morally and legally bound to act. It is writ large that the fairness and impartiality was lacking in the police officials investigating this case. They did not investigate why it took so long i.e. 24 hours for PW2 to inform her near relatives i.e. PW1 about disappearance of her husband despite that she was talking to few persons continuously during night and throughout the day. They did not investigate how did PW2 knew that the car of her husband is SC No.23/11 Page 30 of 33 lying abandoned in Bagpat. They did not investigate why she did not make any effort at all to search her husband, why she did not even provide any photograph of her husband to the Police to aid them in looking for him and why she did not visit the Police station on 16.04.2008 and thereafter to identify the clothes and photograph of dead body brought by Police from Lakhan Majra.
52. Police did not investigate how PW13, PW15 and PW25 knew the place in village Khairanti where the dead body of a male had been found. They did not get the DNA of the dead body matched with DNA of Balbir Singh's blood relations. They did not lift the finger prints on the car to match with those of the accused to establish their complicity in the crime. The calls made from the cell phone of PW3 to the two PCO numbers at Moradabad on 03.04.2008 and 08.04.2008 have not been investigated.
53. It is apparent that the investigation of this case has been deliberately botched up in collusion with PW2 and PW3 to secure false implication of accused for the kidnapping and murder of Balbir Singh.
SC No.23/11 Page 31 of 33
In re: Conclusion and result
54. The golden rule governing a criminal trial is that the accused is presumed to be innocent and burden is on the prosecution to prove the guilt of the accused beyond reasonable doubt. Reasonable doubt is simply the degree of doubt which would permit a reasonable and just man to come to a conclusion.
55. In the present case, it can be safely said that prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt. The prosecution case is replete with doubts and mysteries. In fact, the prosecution has failed to establish even the kidnapping and murder of Shri Balbir Singh.
56. In seems that the three accused were implicated in this case as they were seen with Balbir Singh soon before his disappearance. Obviously the needle of suspicion would have pointed towards the accused. However, suspicion alone, though was enough to put the accused for trial, but the other facts and the circumstances coming out from the testimony of various witnesses examined in this case have dispelled that suspicion and have created well founded SC No.23/11 Page 32 of 33 doubts regarding the complicity of accused in this case.
57. As a result, all the three accused are liable to the acquittal and are hereby acquitted. They be released from custody forthwith, if not required to be detained in any other case.
File be consigned to Record Room.
Announced in open (VIRENDER BHAT)
Court on 19.08.2011. A.S.J. :Dwarka Courts
New Delhi.
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