Delhi High Court
Sanjay Mishra vs State on 22 May, 2012
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Pratibha Rani
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : March 30, 2012
Judgment Pronounced on: May 22, 2012
+ CRL.A. 367/1999
SANJAY MISHRA ..... Appellant
Represented by: Mr.K.B.Andley, Senior Advocate
instructed by Mr.M.L.Yadav and
Mr.Lokesh Chander, Advocates.
versus
STATE ....Respondent
Represented by: Mr.Pawan Sharma, Standing
Counsel (Criminal) instructed by
Mr.Harsh Prabhakar, Ms.Laxmi
Chauhan and Mr.Jai Kush Hoon and
Mr.Sahil Mongia, Advocates with
SI N.L.Yadav, PS Kirti Nagar in
person.
And
CRL.A. 382/1999
PRAMOD KUMAR ..... Appellant
Represented by: Mr.Ramesh Gupta, Senior Advocate
instructed by Mr.R.S.Kundu,
Advocate.
versus
STATE ....Respondent
Represented by: Mr.Pawan Sharma, Standing
Counsel (Criminal) instructed by
Mr.Harsh Prabhakar, Ms.Laxmi
Chauhan and Mr.Jai Kush Hoon and
Mr.Sahil Mongia, Advocates with
SI N.L.Yadav, PS Kirti Nagar in
person.
And
CRL.A. 367/1999 Page 1 of 30
CRL.A. 395/1999
DALEEP KUMAR ..... Appellant
Represented by: Mr.Abhilash Mathur and
Mr.Shohit Chaudhary, Advocates.
versus
STATE ....Respondent
Represented by: Mr.Pawan Sharma, Standing
Counsel (Criminal) instructed by
Mr.Harsh Prabhakar, Ms.Laxmi
Chauhan and Mr.Jai Kush Hoon and
Mr.Sahil Mongia, Advocates with
SI N.L.Yadav, PS Kirti Nagar in
person.
And
CRL.A. 396/1999
PREMPAL ..... Appellant
Represented by: Mr.Patnakar Dash and
Mr.S.K.Saxena, Advocates.
versus
STATE ....Respondent
Represented by: Mr.Pawan Sharma, Standing
Counsel (Criminal) instructed by
Mr.Harsh Prabhakar, Ms.Laxmi
Chauhan and Mr.Jai Kush Hoon and
Mr.Sahil Mongia, Advocates with
SI N.L.Yadav, PS Kirti Nagar in
person.
And
CRL.A. 397/1999
SACHIN ..... Appellant
Represented by: Mr.S.K.Saxena, Advocate.
versus
STATE ....Respondent
Represented by: Mr.Pawan Sharma, Standing
CRL.A. 367/1999 Page 2 of 30
Counsel (Criminal) instructed by
Mr.Harsh Prabhakar, Ms.Laxmi
Chauhan and Mr.Jai Kush Hoon and
Mr.Sahil Mongia, Advocates with
SI N.L.Yadav, PS Kirti Nagar in
person.
And
CRL.A. 398/1999
KULDEEP ..... Appellant
Represented by: Mr.S.K.Saxena, Advocate.
versus
STATE ....Respondent
Represented by: Mr.Pawan Sharma, Standing
Counsel (Criminal) instructed by
Mr.Harsh Prabhakar, Ms.Laxmi
Chauhan and Mr.Jai Kush Hoon and
Mr.Sahil Mongia, Advocates with
SI N.L.Yadav, PS Kirti Nagar in
person.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. The appellants, by way of the above captioned six appeals have questioned the legality of the impugned judgment dated July 06, 1999 passed by the learned Additional Sessions Judge convicting the appellants for having committed offences punishable under Sections 302, 364-A and 201 IPC read with Section 34 IPC; the act being, having kidnapped Shashi Bhushan Ajmani @Kakku (here-in-after referred to as the „deceased‟) to extort money from the father of the deceased; caused death of the deceased by strangulation and CRL.A. 367/1999 Page 3 of 30 destroyed the evidence by throwing the dead body of the deceased in a canal.
2. In a nutshell, the case set up by the prosecution against the appellants (as emerging from the testimonies of the police officials and other witnesses associated with the investigation of the present case) was that on January 20, 1995 at about 01:55 A.M. HC Shishupal PW-20, on duty at PS Janakpuri received a wireless message from the wireless operator at the Police Control Room informing that a call had been received from telephone No.5552536 installed at the house of the caller being C-2/120, Janakpuri, informing that the son aged 17-18 years of the caller was missing since about 07:30 PM and that a call had been received at about 10:45 PM demanding ransom to release the son of the caller with information given by the person demanding ransom that Maruti make car bearing No.DL 2CD 6349 was parked near Ludlow Castle School. Said information was entered in the Daily Diary vide DD No.29A, Ex.PW-20/A by HC Shishupal and was marked to SI Parmanand for investigation who immediately proceeded to the house bearing Municipal No.C- 2/120, Janak Puri where he met Krishan Lal Ajmani, the father of the deceased and on enquiries from Krishan Lal Ajmani learnt that in all probability the deceased has been kidnapped from Kirti Nagar area, accordingly, SI Parmanand forwarded the case for investigation to PS Kirti Nagar where duty officer HC Mohan Singh PW-25, recorded DD No.28A, Ex.PW25/A, recording the fact of the deceased being kidnapped. The aforesaid DD entry was marked to SI Ram Saran PW-34, for investigation who accompanied by HC Bhoop Singh and Ct.Shami Kapoor proceeded to the house of the deceased and CRL.A. 367/1999 Page 4 of 30 recorded the statement Ex.PW-1/A of Krishan Lal Ajmani and made an endorsement Ex.PW-34/A thereon at about 04.00 A.M. on January 20, 1995 and got the FIR Ex.PW-25/B registered at PS Kirti Nagar for an offence punishable under Section 364-A IPC.
3. The statement, Ex.PW-1/A, made by Krishan Lal Ajmani records that he resides with his family at C-2/120, Janak Puri, New Delhi and is engaged in the business of timber from a premises at Kirti Nagar. On January 19, 1995 at about 07.15 P.M. he and his son i.e. the deceased were present in their office at Kirti Nagar. At that time the deceased took from him `100/- to purchase chicken on his way back from the office to their house and told him that he would also see the wedding cards at the printing press in Tilak Nagar for the ensuing marriage of his daughter fixed for February 18, 1995. The deceased drove away in his Maruti car bearing No.DL-2CD- 6349. After finishing his work in the office at about 08.15 P.M. he left for his house. On reaching his house at 08.30 P.M. he learnt that the deceased had not returned. He was waiting for the deceased when at about 10.30 P.M. Rajinder Singh @Nikko, a friend of the deceased, came to his house and informed him that he was waiting for the deceased at the printing press but the deceased did not turn up there. At about 10.45 P.M. a call was received at his residence by his daughter Shilpi. The caller told Shilpi that he wanted to talk to him whereupon Shilpi passed the receiver of the telephone to him. The caller told him „Listen to me. Your car is lying parked at Ludlow Castle School near bus station and your son is in our custody. Come to us with a sum of `50,00,000/-.‟ He asked the caller about his identity, the number of his car and the place CRL.A. 367/1999 Page 5 of 30 where he should come with ransom money, upon which the caller told him that he would intimate the place where he should come with ransom money after 2 days and that the number of his car is 6349. Thereafter he gave a telephonic call to his brother-in-law Vijay Kumar and asked him to check whether his car was parked near Ludlow Castle school, whereupon Vijay Kumar went to Ludlow Castle school and confirmed that his car was parked there. His son i.e. the deceased has been kidnapped by an unknown person. An action be taken against the kidnapper.
4. Soon thereafter the police issued a hue and cry notice wherein it was recorded that the deceased was wearing blue shirt, light green colored jeans, green sweater, puma shoes, a gold chain and a diamond ring at the time when he went missing. On January 30, 1995, S.K. Chaddha, Finger Print Expert, CFSL lifted six chance prints from the car of the deceased i.e. car having No.DL-2CD-6349. The police tapped the phone lines installed at the houses of the deceased and his uncle Vijay Kumar. Number of ransom calls were received at both the telephones but the police did not get any clue about the identity of the kidnapper from the said calls.
5. During the course of the investigation, the police got some leads whereby it had reasons to suspect that appellant Sachin, who was known to the deceased, is involved in the kidnapping of the deceased and in that view of the matter the police started keeping a vigil on appellant Sachin.
6. In the wee hours of the morning of February 23, 1995 Inspector K.L.Meena PW-32 and SI K.P.Singh PW-35, were keeping a vigil on the house of appellant Sachin, when at around 04.00 A.M. a Maruti car bearing No.DL-5CA-1957 CRL.A. 367/1999 Page 6 of 30 stopped near the house of appellant Sachin. Appellant Prem Pal was driving the car and got down from the car and went to the house of appellant Sachin. 1 or 2 minutes thereafter appellants Sachin and Prem Pal came out of the house and drove away in the car. Sensing something fishy, Inspector K.L.Meena and SI K.P.Singh started trailing the car of appellants Prem Pal and Sachin. The car of the appellants Prem Pal and Sachin proceeded in the direction of the house of the deceased and stopped near the house of the deceased. As the two stopped the car, Insp.K.L.Meena PW-32, SI K.P.Singh PW-35, Insp.R.K.Rathi PW-30, SI Swadesh Prakash PW-31 and Ct.Om Veer Singh PW-27 apprehended Prem Pal and Sachin and conducted a personal search of appellant Sachin but found nothing in his possession, as recorded in the personal search memo Ex.PW-27/D. Thereafter another personal search of appellant Sachin was conducted soon thereafter and a ransom note Ex.PW-3/Q6 was recovered from the left pocket of his pant as also a country made pistol loaded with a live cartridge and another live cartridge in the right pocket of his pant as recorded in the memos Ex.PW-27/A and Ex.PW-27/C. The personal search of appellant Prem Pal resulting in the recovery of some narcotic substances. SI Swadesh Prakash PW-31, obtained the specimen writing Ex.PW-3/S10 to Ex.PW-3/S14 of appellant Prem Pal. (Be it noted here that the specimen Ex.PW- 3/S10 to Ex.PW-3/S14 of the handwriting of appellant Prem Pal is identically worded as the ransom note Ex.PW-3/Q6 recovered from appellant Sachin). Appellants Sachin and Prem Pal were taken to PS Janak Puri where FIR No.94/1995 under Arms Act was registered against appellant Sachin for unlawful CRL.A. 367/1999 Page 7 of 30 possession of arms and FIR No.95/1995 was registered under NDPS Act for possessing narcotic substances against Prem Pal.
7. On being interrogated by the police officials, appellants Sachin and Prem Pal made disclosure statements Ex.PW-30/A and Ex.PW-32/A respectively, wherein they disclosed that along with appellants Kuldip, Sanjay Mishra, Pramod and Dalip they had kidnapped and murdered the deceased; after murdering the deceased they had chained the dead body, tied weights to it and threw it in Gang Nahar in Muradnagar. They disclosed that they can get recovered the body of the deceased. Additionally, appellant Prem Pal stated that he can get recover a paper scribed by the deceased, the wallet of the deceased containing his credit card and identity cards and some other documents pertaining to the deceased.
8. Thereafter the police officials at PS Janak Puri informed the officials at PS Kirti Nagar of appellants being apprehended and having made a disclosure statement as aforesaid, which fact the prosecution claims was recorded at PS Kirti Nagar as per daily diary entry Ex.PW-34/C.
9. Thereupon SI Ram Saran PW-34 and Inspector Yaswant Singh PW-38, went to PS Janak Puri and arrested appellants Sachin and Prem Pal in the present case. Appellants led SI Ram Saran and Inspector Yaswant Singh to the house of appellant Kuldip where appellants Kuldip and Pramod, being found present, were arrested. The personal search of appellants Kuldip and Pramod was conducted which resulted in a gold ring Ex.P-5 having white colored stones being recovered from appellant Kuldip and a gold chain Ex.P-4 being recovered from appellant Pramod as recorded in the memos Ex.PW-34/F and Ex.PW-34/G. On interrogation, appellants Kuldip and CRL.A. 367/1999 Page 8 of 30 Pramod made disclosure statements Ex.PW-34/D and Ex.PW- 34/E respectively on similar lines as made by appellants Sachin and Prem Pal.
10. Thereafter SI Ram Saran PW-34 and Inspector Yaswant Singh PW-38, arrested Sanjay Mishra and Dalip and at the time of arrest appellant Sanjay Mishra was found wearing a wrist watch Ex.P-1 of Swiss make which was seized vide memo Ex.PW-34/J. The personal search of appellant Dalip yielded a broken gold chain Ex.P-3 from the right pocket of his pant as recorded in the memo Ex.PW-34/K. Thereafter the two made disclosure statements Ex.PW-34/H and Ex.PW-34/K on similar lines as other appellants.
11. The next day i.e. February 24, 1995 SI Ram Saran PW-34 and Inspector Yaswant Singh PW-38, accompanied by Vijay Kumar PW-6, the uncle of the deceased, Deepak PW-23, an employee of the father of the deceased and a diver, Pooran Chand PW-5, were led by the appellants to Gang Nahar where each one of them pointed to a spot informing that they had thrown the dead body of the deceased in the canal at said spot, but the diver Pooran Chand could not retrieve the dead body from the said spot in spite of making vigorous attempts. Thereafter, the next day i.e. on February 25, 1995 Ram Saran PW-34 and Inspector Yaswant Singh PW-38, accompanied by Vijay Kumar PW-6, the uncle of the deceased, Deepak PW-23, an employee of the father of the deceased and a diver Pooran Chand PW-5 again went to Gang Nahar and this time the body of the deceased was found in the canal. The body was found chained and tied with weights. Its recovery in said condition was recorded in the memo Ex.PW-6/G. CRL.A. 367/1999 Page 9 of 30
12. Post-mortem got conducted, as per post-mortem report Ex.PW-28/A opined that death was the result of strangulation and that the deceased had died about a month prior to when the post-mortem was conducted on February 26, 1995.
13. On February 27, 1995 appellant Prem Pal led SI Ram Saran PW-34 and Inspector Yaswant Singh PW-38 to a house and got recovered a wallet containing 2 identity cards of the deceased issued by Aptech institute; slips Ex.PW-3/Q1, Ex.PW-3/Q2 and Ex.PW3/Q3 of paper wherein the telephone numbers of the relatives of the deceased were written and a slip Ex.PW-3/Q4 of paper having a writing and a signature (purportedly of the deceased) on reverse whereof an address was written. The aforesaid documents were seized vide memo Ex.PW-6/J.
14. On March 01, 1995 the Investigation Officer recorded the supplementary statement Ex.PW-1/DA of the father of the deceased wherein he stated that the deceased was wearing 2 gold chains, 1 gold ring having white colored stones and 1 wrist watch of Swiss make on the day he went missing.
15. On April 17, 1995 a Test Identification of the jewelry articles and the watch recovered from or at the instance of the appellants was got conducted before Ramesh Kumar PW-39, Metropolitan Magistrate, wherein the father of the deceased identified the said articles.
16. During the course of investigation, the police obtained the voice samples of the appellants and along with the tapes of ransom calls received at the house of the deceased and his relatives sent the same to CFSL for voice CRL.A. 367/1999 Page 10 of 30 comparison. Likewise, the specimen handwriting of appellants Prem Pal and Sanjay Mishra was sent along with the slips of paper recovered at the instance of appellant Prem Pal as also the ransom note recovered from Sachin for opinion of a handwriting expert. Vide FSL report Ex.PW-3/I it was opined that the ransom note Ex.PW-3/Q6 recovered from the possession of appellant Sachin was in the handwriting of appellant Prem Pal; the telephone numbers of the relatives of the deceased written on the slips Ex.PW-3/Q1 and Ex.PW-3/Q2 recovered at the instance of appellant Prem Pal are in the handwriting of appellant Prem Pal; the telephone numbers of the relatives of the deceased written on the slips Ex.PW-3/Q1 and Ex.PW-3/Q2 recovered at the instance of appellant Prem Pal are in the handwriting of appellant Sanjay Mishra; the slip Ex.PW-Q4 recovered at the instance of appellant Prem Pal contains the signatures of the deceased and that the address written on the slip Ex.PW-Q4 recovered at the instance of appellant Prem Pal is in the writing of the deceased. As regards the voice samples, vide CFSL report Ex.PW-37/A it was opined that the voice samples of appellant Kuldip and Pramod matched with the voice(s) of the caller(s) who made the ransom calls. Vide FSL report dated March 02, 1995 it was opined that the chance prints lifted from the car of the deceased did not match the fingerprints of any appellant.
17. In support of its case, the prosecution examined 39 witnesses.
18. We need not note in detail the testimonies of the witnesses associated with the investigation of the case for they have deposed on lines, of factual narrative, noted by us in the foregoing paragraphs, but would be highlighting such CRL.A. 367/1999 Page 11 of 30 testimonies or other evidence which needs to be brought out for purposes of evaluating the creditworthiness of the evidence led at the trial.
19. SI Swadesh Prakash PW-31, deposed during examination-in-chief that he had obtained the specimen writing Ex.PW-3/S10 to Ex.PW-3/S14 of appellant Prem Pal the very day he was apprehended, but during cross-examination on the same subject he stated (Quote): „I had taken the specimen of hand writing of Prem Pal accused but I do not remember the place where it was taken. It could be at the place of his arrest. I was not the investigating officer of this very case. I took the specimen of his handwriting of my own which I considers to be necessary for the purposes of comparison....Ex.PW-3/S-10 is one of the specimen which has been shown to me just now. The language of this specimen hand writing was chosen because the ransom note was so written. Today I have seen the ransom note PW3/Q-6 and the subject matter of the specimen writing is exactly same words to words of the ransom note.‟ On being questioned regarding the fingerprints of the appellants with the chance prints lifted from the car of the deceased, Inspector Yaswant Singh PW-38 stated (Quote): „The Finger Prints lifted from the abandoned vehicle of the complainant as found at Ludlocastle were sent to CFSL but the Finger prints of the accused persons presently facing trial were taken but the Finger Prints of the accused persons were not sent to CFSL and therefore, there was no comparison between the two and therefore I say that there was no tally of the Finger Prints as lifted and those taken of the accused.‟ On being questioned about the hue and cry notice issued by the police regarding the disappearance of the CRL.A. 367/1999 Page 12 of 30 deceased, Inspector Yaswant Singh stated (Quote): „I have seen a copy of a hand written hue and cry notice appearing at page 185 of the judicial file purporting to be from SHO Kirti Nagar it must have been got written by the earlier IO SI Ram Saran....The contents of the notice referred to by the defence counsel is a matter of record but is correct that it does refer to the description of the boy, the clothes worn by him, the shoes worn by him, and it does mention of a gold chain and a diamond ring having been on the person of that boy. It is correct that this document makes no mention of any watch.‟
20. HC Shub Ram PW-24, who was posted as Malkhana Moharrar at Police Station Kirti Nagar at the relevant time deposed that on February 23, 1995 a gold ring, watch and two gold chains were deposited in the Malkhana of the police station, and relevant would it be to note that there is no evidence that the ransom note Ex.PW-3/Q6 was ever deposited in the Malkhana after it was recovered from the pocket of Sachin on February 23, 1995 when Sachin was arrested.
21. On the issue of the Test Identification conducted on April 17, 1995, at which Krishan Lal Ajmani correctly identified the watch, ring and the gold chains recovered from the accused, on being cross-examined he stated (Quote): „The watches other than the watch which I had identified were of different straps, namely, leather steel and others and watch which I had identified was with golden chain.‟
22. Pooran Chand PW-5, deposed that on February 25, 1995 he had gone with the police to Gang Nahar for purposes of finding a dead body from Nahar. When he reached there the body of the deceased had been fished out from the Nahar and was lying on the floor. Vijay Kumar PW-6, uncle of the CRL.A. 367/1999 Page 13 of 30 deceased and Deepak PW-23, an employee of the father of the deceased, deposed that the appellants were not present at Gang Nahar at the time of recovery of the body of the deceased from the canal. On being questioned about the events after the kidnapping of the deceased, Deepak PW-23 stated that (Quote): „I was picked up from my house and was taken to the office of DCP Deepak Mishra and where I was beaten. Later I was taken to Janakpuri Police Station where I was beaten many times. The police used to interrogate and beat us because the police suspected that some employees may have been responsible for the kidnapping of Shashi Bhushan....I had not known any of the accused person earlier and I had also not seen them earlier but I had seen Sachin in the office of DCP where I was called.‟
23. Ram Kishan Verma PW-8, the father of appellant Kuldip, proved that photograph Ex.PW-8/9 of wedding of appellant Kuldip, in which photograph all the appellants are seen together. Shri Pal Sharma PW-17, UDC, Arya Bhatt Polytechnic Institute, deposed that all the appellants had studied in the said Institute between the years 1988 and 1994. Vijender Kumar Jain PW-21, Manager Administration, Aptech deposed that the deceased was studying Aptech Institute and that 2 identity cards recovered at the instance of appellant Prem Pal were issued to the deceased by Aptech Institute.
24. Ramesh Kumar PW-39, the Magistrate before whom the Test Identification was conducted on April 17, 1995, stated (Quote) : „It is correct that the property to be identified was kept at the left of the table and the property brought for mixing was kept on the right of the table.‟ CRL.A. 367/1999 Page 14 of 30
25. Vide impugned judgment dated July 06, 1999 the learned Trial Court has convicted the appellants of the offences with which they were charged. In coming to said conclusion, it has been held by the learned Trial Judge that the prosecution has been able to prove the circumstances viz. (i) appellant Sachin was known to the deceased; (ii) all the appellants were known to each other; (iii) the ransom note Ex.PW-3/Q6 was written by appellant Prem Pal; (iv) the ransom note Ex.PW-3/Q6 was found from the possession of appellant Sachin; (v) telephone numbers of the relatives of the deceased contained in the slips Ex.PW-3/Q1 and Ex.PW-3/Q2 were written and got recovered by appellant Prem Pal; (v) telephone numbers of the relatives of the deceased contained in the slip Ex.PW-3/Q3 were written by appellant Sanjay Mishra and got recovered by appellant Prem Pal; (vi) appellant Prem Pal had got recovered the slip Ex.PW3/Q4 containing the signatures of the deceased and the identity cards of the deceased; (vii) a gold chain belonging to the deceased was found in the possession of appellant Pramod; (viii) a gold ring having white colored stones belonging to the deceased was found in the possession of appellant Kuldip; (ix) a wrist watch belonging to the deceased was found in the possession of appellant Sanjay Mishra; (x) a gold chain belonging to the deceased was got recovered from the possession of appellant Dalip and (xi) the dead body of the deceased was recovered at the instance of the appellants and that the aforesaid circumstances, when seen cumulatively, proves the complicity of the appellants.
26. It would be relevant to note following portions of the judgment of the Trial Court:-
CRL.A. 367/1999 Page 15 of 30"78. No doubt, there is some force in the argument of the Ld. Counsels for the various accused that there is an element of improbability in the circumstances as to why should Sachin be hovering around the house of the deceased with Prem Pal and why should Prem Pal carry a tin of ghee in his car at that time that too after over a month of murder of the deceased. More so, after Sachin has been seen by none other than PW23 an employee of PW1 at the office of DCP a couple of days before the arrest of Sachin and Prem Pal. Similarly there appears to be some force in the argument that why should there be no public witness to the proceedings of 23rd Feb. 1995 to the arrest of Sachin and Prem Pal and later arrest of the remaining accused one after the other on 23.2.1995. Why should Kuldip possess a ring Ex.P-5, why should Pramod keep with him a chain Ex.P-4, why should Sanjay Mishra keep watch Ex.P-1 with him, why should Dalip possess another chain Ex.P-3, why should Prem Pal possess a writing containing telephone numbers of the relatives of the deceased much after the death of the deceased and thereby inviting trouble individually and collectively. Having given my patient consideration to the elaborate arguments of the Ld. Counsels representing the various accused, I am of the considered view that the police witnesses are speaking the truth as to the events of 23.2.95 with respect to the arrest of each of the various accused in the manner deposed by them and in respect of individual recoveries of the articles which are proved to be belonging to the deceased......
79. Yet, one cannot disagree with the contentions of Ld. Counsels for the various accused that the conduct of Ld. Magistrate conducting the Test Identification Parade proceedings of the recovered articles were irresponsible, to say the least. The defence counsel may be justified in dubbing the procedure of holding Test Identification Parade Proceedings of the recovered articles as being farce and not in consonance with the gravity of the situation. At CRL.A. 367/1999 Page 16 of 30 the same time, on my part, it would be wrong to disbelieve the father of the deceased that the items which he identified before the Magistrate were that of his son.
xxx xxx
96. As regards the judgment in the case of Sukhvinder Singh referred to in the preceding para I would say that no doubt the first disclosure was that of Prem Pal or Sachin and the same was capable of discovery and could have been acted upon as observed by the Apex Court in para 16 of the Judgment cited at the Bar. But in my considered view the distinguishing and significant features of this case cannot be lost sight of. The distinct and significant feature of this case as against the case cited at the Bar, the body of the deceased was found from the house of the accused Sukhvinder whose disclosure was first in point of time and the dead body was not, in such circumstance, where it could not have been so hidden by one person alone. In this case the circumstance in which the dead body had been found has been such that it would not have been the handiwork of one individual. All the accused appear to be reasonably educated. They appear to have their Science background and in particular, the principle of Archimedes and Buoyancy of the human body resulting in body reappearing on surface after a variable period of time and usually at a little distance away from the place of drowning, in the methodology adopted in the disposal of the dead body. That was how it was chained locked and tied to a weight so that it did not come on surface and float and thereby get noticed. In my considered view, it would be wrong in the facts of this case to hold that the disclosure statement of only Prem Pal or Sachin would alone be admissible in evidence and not that of the remaining accused. I feel that I would fall into an error if I were to held in the given circumstances that the disclosure statement of accused other than the accused Prem Pal and/or Sachin should be held in inadmissible in evidence." (Emphasis Supplied) CRL.A. 367/1999 Page 17 of 30
27. That the deceased went missing in the night of January 20, 1995 was not in dispute and that the police came into the picture at the midnight of January 20, 1995 is also not in dispute. FIR Ex.PW-25/B was registered on the basis of statement Ex.PW-1/A made by the father of the deceased wherein the father has narrated the events immediately preceding and subsequent to the missing of the deceased. The statement Ex.PW-1/A by the father of the deceased does not mention anything about the jewelry items worn by the deceased at the time when he went missing. Pertinent would it be to note that soon after the missing of the deceased the police issued hue and cry notice regarding the disappearance of the deceased wherein it was recorded that the deceased was wearing a gold chain and a diamond ring when he went missing and there is no reference to another gold chain or a Swiss make watch. Relevance thereof would be discussed by us while discussing the recoveries attributed to the appellants.
28. We need to highlight one issue pertaining to the case diary, which was perused by us when arguments were advanced. The case diary would reveal that the Investigating Officer, to find a lead interrogated not only the employees of Krishan Lal, in respect whereof, as noted by us herein-above, Deepak PW-23 an employee of Krishan Lal has thrown much light by admitting during cross-examination that the police picked him up from the house and he was beaten by the police many times, that he was interrogated because the police suspected the hand of the employees of Krishan Lal in the deceased being kidnapped, but even repeatedly summoned all friends and acquaintances of the deceased, including Sachin, CRL.A. 367/1999 Page 18 of 30 also including employees of such places which the deceased used to visit, but without any breakthrough. The case diary would reveal that the Investigating Officer had also visited the Aptech Institute where the deceased as also Sachin were registered as students. The case diary would reveal that even Sachin was interrogated, as were other friends of the deceased, but nothing suspicious was found qua them. The case diary would reveal that on January 31, 1995 the Investigating Officer went to ISBT Telephone Exchange to make inquiry about Telephone No.5594780, but for what purpose? It is unknown. The case diary would reveal that a dead end was reached by February 08, 1995, evidenced by the fact that till all of a sudden on February 23, 1995 Sachin and Prem Pal were recorded as having been arrested, the case diary recorded each day commencing from February 09, 1995 till February 22, 1995, simply records that attempts were being made to locate the deceased, but without any result.
29. A perusal of the case diary shows that on January 20, 1995 the father of the deceased informed SI Ram Saran PW-34, first investigating officer in the present case, that Mandeep Sodhi, Rajinder Singh @ Nikoo, Shashi Kapoor @ Mini, Gursharan Singh @ Bobby, Dinesh, Fakir Chand and Sachin are some of the friends of the deceased. On January 22, 1995 SI Ram Saran interrogated Dinesh Chauhan who disclosed that he, Fakira, Sachin and Sonu knew the deceased in connection with migration of the deceased from evening to morning classes in Khasla College. Thereafter the case diary shows that Inspector Ram Saran interrogated number of persons who were/had been employees of the family of the deceased or were connected with the deceased and his family CRL.A. 367/1999 Page 19 of 30 in some way or other but to no avail. On January 27, 1995 SI Ram Saran visited Aptech Institute where the deceased was studying. The case diary further shows that on January 28, 1995 SI Ram Saran interrogated appellant Sachin who disclosed that he knew the deceased in connection with migration of the deceased from evening to morning classes in Khasla College. The case diary shows that no suspicion was expressed by SI Ram Saran on appellant Sachin. Thereafter the case diary written by SI Ram Saran for the period between January 29, 1995 to February 22, 1995 records that the police kept on investigating the case from several angles but could make no headway. Pertinently the case diary recorded before February 23, 1995 has nowhere mentioned that appellant Sachin is a suspect in the present case or that appellant Sachin is under surveillance of the police. All of a sudden on February 23, 1995 there is a major breakthrough in the present case with the arrest of appellants Sachin and Prem Pal.
30. Let us pause here for a second.
31. It is the case of the prosecution that appellant Sachin was a suspect in the present case and was under the surveillance of the police. It is further the case of the prosecution that the police arrested appellants Sachin and Prem Pal when they found them hovering near the house of the deceased in the wee hours of February 23, 1995 when they were keeping a vigil on appellant Sachin and that the ransom note Ex.PW-6/Q3 written by appellant Prem Pal was found in the possession of appellant Sachin. There is an apparent mismatch between the claim of the police that since Sachin was a suspect, he was kept under surveillance and what is recorded in the case diary.
CRL.A. 367/1999 Page 20 of 3032. Is it that, a frustrated Investigating Officer, unable to find any lead, contrived a false breakthrough and thereafter proceeded to plant incriminating evidence.
33. Now, if the case of the prosecution is to be believed that Sachin was a suspect and his suspicious movements led the Investigating Officer to apprehend him and the ransom note was recovered from his pocket, the recovery memo thereto ought to be recording the number of the FIR. Where was the need to register a separate FIR? Insp.K.L.Meena PW- 32 has categorically deposed that he was associated with the investigation of FIR No.17/95 i.e. the FIR Ex.PW-25/B pertaining to the instant case and that he along with SI K.P.Singh, HC Atar Singh, HC Shiv Kumar, Ct.Salesh, Ct.Satyawan and Ct.Krishan Pal were near the house of Sachin, who was a suspect, and that the suspicious movements of Sachin and Prem Pal led them to apprehend the two. His testimony makes it all the more intriguing as to why alleged recoveries from the person of Sachin and Prem Pal were not recorded as made during investigation of FIR Ex.PW-25/B.
34. We have another problem at hand. There is no evidence of the ransom note Ex.PW-3/Q6 being deposited in the Malkhana. There is no evidence when it was sent from the Malkhana to the forensic laboratory for handwriting opinion. There is yet another problem relating to Ex.PW-3/Q6. As per the prosecution it was recovered from the person of Sachin when he was apprehended. As has been noted by us, the prosecution claims that upon being apprehended the personal search memo Ex.PW-27/D pertaining to Sachin was drawn up. Surprisingly, there is no mention of recovery of Ex.PW-3/Q6 upon the personal search of Sachin in Ex.PW-27/D. A second CRL.A. 367/1999 Page 21 of 30 personal search memo Ex.PW-27/A was later on drawn up which records that the ransom note Ex.PW-3/Q6 was recovered from the left pocket of the pant of Sachin. Another memo Ex.PW-27/C was later on drawn up showing recovery of a country made pistol containing a live cartridge and another live cartridge from the right pocket of the pant worn by Sachin, and we highlight that these recoveries are shown after the two were brought to PS Janakpuri.
35. The possibility of planting cannot be ruled out. It is just not possible to believe that such incriminating material would not be recovered when Sachin was apprehended, as claimed, and personal search was conducted at the spot itself.
36. There is yet another taint with respect to the ransom note Ex.PW-3/Q6. SI Swadesh Prakash PW-31 admits having made Sachin write more than one handwritten specimens pertaining to the writing of Sachin and being identically worded with the ransom note Ex.PW-3/Q6. If this be so, there being no evidence of the ransom note being deposited in the Malkhana, there being no evidence of when it was taken from the Malkhana to be sent to the handwriting expert, the possibility of one such writing taken from Sachin being converted into the ransom note and the other being specimen writings cannot be ruled out.
37. We find another taint with respect to Ex.PW-3/Q6. Why would Sachin be keeping in his pocket an incriminating document knowing fully well that with respect to the death of the deceased the police was questioning all those who were known to the deceased, and we have the case diaries to establish that Sachin had been interrogated by the police on January 28, 1995.
CRL.A. 367/1999 Page 22 of 3038. As regards the recoveries attributed to Kuldeep, Pramod, Sanjay and Daleep, as noted by us herein above, the statement Ex.PW-1/A made by the father of the deceased makes no mention of the jewelry worn by the deceased when he went missing. The hue and cry notice issued makes no mention of a Swiss made wrist watch and the second gold chain worn by the deceased. The supplementary statement Ex.PW-1/DA in which a mention is made to the recovered articles is after the recovery was effected.
39. The case diary would reveal that the investigation officer had visited Aptech Institute during course of investigation and there is thus a possibility of this having picked up the cards of said institute and thereafter planting the same. As regards the test identification of the two gold chains, the watch and the ring of the deceased, we would highlight that Ramesh Kumar PW-39, the Metropolitan Magistrate before whom the test identification proceedings were conducted on April 17, 1995 admitted that he had not mixed up the various exhibits with other similar items brought by the police and that he had kept on one side of the table the exhibit and on the other side the rings, gold chains and watches, stated to be similar, brought by the investigation officer. We wonder, whether this exercise could at all be called a test identification exercise, where the thing to be identified is kept distinctively aloof and the stated similar objects which required to be mixed up, are distinctively kept aside. We would highlight that even the learned Trial Judge has adversely commented thereupon, but has gone on to believe the dock identification by the father of the deceased, ignoring the fact that there is no evidence of their being any CRL.A. 367/1999 Page 23 of 30 distinctive mark on any exhibit, with reference whereto, it could safely be said, without any demur or hitch, that the exhibit is linked to the deceased.
40. Thus, there is a serious problem with reference to the gold ring, the two gold chains and the wrist watch being linked to the deceased.
41. Way back in the year 1943, Justice Muneer, in the decision reported as AIR 1943 Null 5 Shera v. Emperor had cautioned Courts to be vigilant against the known practice of the police to plant ordinary objects on the accused persons to prove their guilt.
42. That apart, as held by the Supreme Court in the decision reported as JT 2008 (1) SC 191 Mani vs. State of Tamil Nadu, circumstance of recovery of ordinary articles at the instance of the accused person is wholly insufficient to sustain the charge of murder against the accused, in a case of circumstantial evidence.
43. Against appellants Kuldeep, Pramod, Sanjay and Dalip, the incriminating evidence sought to be produced is the stated recoveries, one article belonging to the deceased, and they having, in conjunction with accused Sachin and Prem Pal getting recovered the body of the deceased pursuant to disclosure statements made by them.
44. We have already commented upon the weak evidence pertaining to the recovery of one article each by them and it being linked to the deceased.
45. It is settled legal position that Section 27 of the Evidence Act, 1872 cannot be used to „rediscover‟ a discovered fact. (See the decisions of the Supreme Court CRL.A. 367/1999 Page 24 of 30 reported as (1994) 5 SCC 152 Sukhvinder Singh v State of Punjab and (1997) 6 SCC 171) Vijender v State of Delhi.
46. As per the case of the prosecution, appellants Kuldeep, Pramod, Sanjay and Dalip made disclosure statements much after appellants Sachin and Prem Pal made disclosure statements and thus qua them, the recovery of the dead body of the deceased cannot be treated as attributable to them and qua them the part of the disclosure statements in which they informed that they can lead the police to the place where the dead body of the deceased was found would be inadmissible in evidence, since the said place was known to the police, as per the case of the prosecution, when Sachin and Prem Pal volunteered said information.
47. The recovery of the ransom notes from Sachin when he was apprehended has been found by us to be tainted and the evidence relating to it being in the handwriting of Prem Pal has been found to be highly tainted. Thus, the alleged incriminating evidence qua the ransom notes loses its inculpatory value.
48. Pertaining to the recoveries attributed to Prem Pal, not only are the exhibits ordinary objects and thus suffers the same lack of credibility as was opined by the Supreme Court in Mani‟s case (supra) and possibility of it being planted and hence the requirement of the Court to be vigilant as opined in Shera‟s case (supra). What does our vigilance reveal. Now, Prem Pal had got recovered identity cards of the deceased and other documents connected with the deceased viz. documents Ex.PW-3/Q1, Ex.PW-3/Q2, Ex.PW-3/Q3 and Ex.PW-3/Q4 on February 27, 1995. We have already noted that a perusal of the case diary shows that SI Ram Saran PW-34, had visited CRL.A. 367/1999 Page 25 of 30 Aptech Institute on January 27, 1995 where the deceased was studying i.e. much before the date of alleged recovery of the identity cards of the deceased at the instance of Prem Pal. The possibility that SI Ram Saran had obtained the identity cards from Aptech Institute at the time of his visit to the Institute and planted the same upon Prem Pal cannot be ruled out. Likewise, as regards other documents recovered at the instance of Prem Pal viz. documents Ex.PW-3/Q1, Ex.PW-3/Q2, Ex.PW-3/Q3 and Ex.PW-3/Q4, they being ordinary articles belonging to the deceased, the possibility that the police obtained said documents from the relatives of the deceased and planted the same upon Prem Pal cannot be ruled out. Why should Prem Pal keep with him useless articles belonging to the deceased which were of no use or value to him and were of an incriminating character? Further, if the accused, as claimed by the prosecution, destroyed the most incriminating evidence against them, i.e. disposed of the dead body by throwing it in the canal, why would they not likewise do with the other useless incriminating material? We find no answer provided to the afore-noted two questions.
49. It is true that the prosecution has successfully proved having recovered the dead body of the deceased, in a state of physical existence, i.e. the body being chained and locked with a heavy metal piece so that the body would remain sunk in the canal and hence not noticed, a fact which the investigating officer would not be expected to know or discover, unless somebody told him so. But the problem is:
Whether Sachin‟s disclosure statement was recorded first or that made by Prem Pal was recorded first. This would be relevant, keeping in view the fact that as per law, as already CRL.A. 367/1999 Page 26 of 30 noted hereinabove, a fact cannot be rediscovered pursuant to the disclosure statement made by a co-accused, if a co- accused has already made a prior disclosure of said fact.
50. There is no evidence as to whose disclosure statement was recorded first. It is not the case of the prosecution that both of them made a joint disclosure statement.
51. Regretfully, we are left with no option but to discard the incriminating value of the said two disclosure statements against Sachin as well as Prem Pal.
52. We need to even highlight that the evidence led by the prosecution to establish that the body of the deceased was recovered at the instance of the appellants is a little shaky. Witnesses, Pooran Chand PW-5, Vijay Kumar PW-6, Deepak PW-23, SI Ram Saran PW-34 and Inspector Yaswant Singh PW- 38, were examined by the prosecution to establish that the body of the deceased had been recovered at the instance of the accused. Whereas Vijay Kumar PW-6 and Deepak PW-23, deposed that the accused were not present at the time when the body of the deceased was fished out of Gang Nahar on February 25, 1995, SI Ram Saran PW-34 and Inspector Yaswant Singh PW-38, deposed to the contrary. Whereas Vijay Kumar PW-6, Deepak PW-23, SI Ram Saran PW-34 and Inspector Yaswant Singh PW-38, deposed that the diver Pooran Chand had accompanied them to Gang Nahar on February 24, 1995 and on February 25, 1995; Pooran Chand PW-5 the diver who fished out the dead body of the deceased on February 25, 1995 deposed that he had gone to Gang Nahar only on February 25, 1995. Further, whereas Vijay Kumar PW-6, Deepak PW-23, SI Ram Saran PW-34 and Inspector Yaswant CRL.A. 367/1999 Page 27 of 30 Singh PW-38, deposed that the body of the deceased was fished out of the canal after they reached Gang Nahar, Pooran Chand PW-5 deposed that the body of the deceased had already been fished out of the canal when they reached the spot. There is utter confusion, in fact Pooran Chand, the diver whose assistance was taken to dive into the canal and trace the body of the deceased, says that the body was already lying fished outside the canal when he and police party reached the canal.
53. We terminate by highlighting that the case diary shows that there were just no lead available and Sachin was never a suspect. The claim of the prosecution that Sachin was there suspect and being found to be moving around in suspicious circumstances led him to be arrested on February 23, 1995, and on which date, everything fell into place, is a highly tainted claim. The fulcrum of the case of the prosecution is rested on a taint and thus the subsequent material gathered, which we may call the lever, is hardly of any help to the prosecution to lift the weight of the evidence led by the prosecution to achieve the standard of proof beyond reasonable doubt.
54. Before concluding, we would note that the impugned judgment has been penned by the learned Trial Judge in a most lackadaisical manner. A perusal of the impugned judgment shows that while on the one hand, the learned Trial Judge has found force in some of the submissions advanced by learned counsel for the appellants (See the portions of the impugned judgment quoted by us in the foregoing paras) but has rolled over the discussion, in that, there is no connection between the conclusions and the CRL.A. 367/1999 Page 28 of 30 reasoning. For example, with respect to the very edifice of the case of the prosecution commencing from Sachin‟s apprehension, in paragraph 78, the learned Trial Judge proceeds (Quote) : „No doubt, there is some force in the argument of the Ld. counsels for the various accused that there is an element of improbability in the circumstances as to why should Sachin be hovering around the house of the deceased with Prem Pal‟ and thereafter discusses the improbability of the other co-accused being possessed of the ring Ex.P-5, the gold chains Exs.P-3 and P-4 and the watch Ex.P-1 and thereby invite trouble against them, individually and collectively, but concludes, without any reasoning or justification, (Quote) : „Having given my patient consideration to the elaborate arguments of the Ld. counsels representing the various accused, I am of the considered view that the police witnesses are speaking the truth.‟ What are the considered views of the learned Trial Judge upon which it is concluded that the police witnesses are speaking the truth are not discernable.
55. The father of the deceased has deposed of having received ransom calls after his son found missing. The prosecution claims having taped the voice calls. Neither witness of the prosecution has spoken about attempts being made to trace the location of the phone wherefrom the calls were being received. It is not the case of the prosecution that the calls were being received from a mobile number. As noting by us, the case diary makes a mention of the investigating officer visiting the Telephone Exchange at ISBT to make enquiry regarding telephone No.5594780, but for what purpose, has not been recorded in the case diary. We are left CRL.A. 367/1999 Page 29 of 30 to wonder as to why was an enquiry made qua said number and for what purpose. It would normally be expected that the investigating officer would be investigating the location of a landline number if calls were being received from the said number. We cannot fathom as to why the investigating officer did not make any effort to find out the place wherefrom the caller was making telephone calls and demanding ransom.
56. That six chance finger prints were lifted from the car in which the deceased left his father‟s shop and which car was found abandoned at Ludlow Castel School and that it is not the case of the prosecution that the finger print of any of the accused matches the chance prints lifted has also to be kept in mind while evaluating the evidence. The presence of the six chance prints in the car is indicative of six persons having accessed the car, and certainly they were not the appellants.
57. Regretfully, notwithstanding a young life being snuffed at the prime, but keeping in view the evidence led at the trial, we are constrained to extend the benefit of doubt to the appellants and thus the above captioned appeals are allowed. The appellants are acquitted of the charge framed against them.
58. Since the appellants are on bail, the bail bonds and surety bonds furnished by them are discharged.
(PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE MAY 22, 2012 dk/KA CRL.A. 367/1999 Page 30 of 30