Harpal Singh @ Chhota Vs State of Punjab

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2539 OF 2014

HARPAL SINGH @ CHHOTA …APPELLANT

VERSUS

STATE OF PUNJAB …RESPONDENT

WITH

CRIMINAL APPEAL NO. 388 OF 2015

SUKHMEET SINGH @ DEPUTY …APPELLANT

VERSUS

STATE OF PUNJAB …RESPONDENT

J U D G M E N T

AMITAVA ROY, J.

The appellants, two out of the six persons, convicted

under Sections 364A, 395, 412, 471, 120B IPC and the

appellant-Harpal Singh @ Chhota in Criminal Appeal No.2539 of

2014 also under Section 25 of the Arms Act, hereby impeach the

affirmation of their conviction by the High Court by the common

impugned judgment and order dated 21.04.2014 rendered in a

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batch of appeals. Though eight persons including the appellants

were indicted of the charges corresponding to the offences

proved, one Gurinder Singh @ Ginda died during trial and

Rupinder Singh was exonerated therefrom. Following their

conviction on the aforementioned charges, the appellants and

other similarly situated have been awarded sentences ranging

from one year to imprisonment for life and fine commensurate

therewith. It has been ordered that all the sentences would run

concurrently.

2. We have heard Mr. R. Basant, learned senior counsel for

the appellant in Criminal Appeal No. 2539 of 2014, Mr.

Subromaniam Prasad, learned senior counsel for the appellant in

Criminal Appeal number 388 of 2015 and Mr. V. Madhukar,

learned counsel for the State.

3. The records divulge that on 11.01.2008 at about 7.45

p.m., while Inspector/SHO of Nurmahal Police station was on

patrol duty, he received a secret information that on 09.01.2008

at about 10/11 a.m., four persons had kidnapped one Gagan

Mahendru son of Subhash Mahendru, resident of Mota Singh

Nagar, Jalandhar in their Honda City car from near Preet Palace

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at gun point, most probably for extracting ransom.

As the input disclosed offence under Sections 364,

364A/34 IPC r/w Sections 25/27/54/59 of the Arms Act, the

information was forwarded to the police station for its

registration and consequential steps.

FIR No.10 dated 11.01.2008 under the afore-mentioned

provisions of law, accordingly was registered with the Nurmahal

Police Station and investigation was initiated, in course whereof,

the statement of Gagan Kumar Mahendru as aforestated was

recorded under Section 161 Cr.P.C. In his statement Gagan,

who claimed to be the victim of kidnapping, stated that on

09.01.2008 Sukhmeet Singh @ Deputy, Gurinder Singh @

Ginda, Jasbir Singh @ Jassi etc. had kidnapped him, tied his

hands and bundled him in the dickey of their car, with the

dishonest intention of realising ransom and took him in the

house of Rupinder Pal Singh from where he was released on

11.01.2008. He claimed to have identified the places where he

had been kept captive and also the places to which he had been

shifted in between.

The statements of the victim and his father Subhash

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Mahendru were also recorded under Section 164 Cr.P.C. On

pursuing the investigation, the police also visited the place from

where the victim had been kidnapped. The Lancer car bearing

No.PB- 08-BA-4700 of the victim was found parked outside Hotel

Taj, Jalandhar which was recovered and handed over to him.

The accused persons were arrested between 16.01.2008 and

23.01.2008 and the following mobile phones were recovered from

their possession:

Sukhmeet Singh @ Deputy 98553–64086 (appellant in Crl. Appeal No. 388 of 2015)

Gurinder Singh @ Ginda 98148-81082

Jatinder Singh @ Sappi 98151-58151

Jasvir Singh @ Jassi – 98151– 58161

Harpal Singh @ Chhota 98760–87794 (appellant in Crl. Appeal No. 2539 of 2014 )

Harpreet Singh @ happy. 98158- 54784

Surinder Singh @ Manga 98154-03503

On the basis of disclosure statements made by appellant

Sukhbir Singh @ Deputy a sum of Rs.25 lakhs and a point .32

revolver belonging to the victim, Honda City Car bearing number

HR 16F 7337 lying concealed, as well as two iron chains with

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which Gagan, the victim had been tied were recovered by the

investigating agency.

On the same day, Gurinder Singh @ Ginda also suffered

a disclosure statement following which an amount of Rs.11 lakhs

was recovered from his room. Similar disclosure statements

were also made by Jatinder Singh @ Jatin, Jasvir Singh @ Jassi

and Harpal Singh @ Chhota, acting whereupon, huge amounts

of cash were recovered together with a country made pistol with

live cartridges.

On 22.01.2008 and 23.01.2008, as well disclosure

statements were made by Harpreet Singh @ Happy and Surinder

Singh @ Manga and pursuing the same, several lakhs of

currency notes were recovered from the almirah/room of these

persons along with one Qualis car bearing number PB 10 AY

4144 said to have been used by the appellant Sukhmeet Singh @

Deputy, in the commission of the crime.

Noticeably, the Honda City car recovered bore engine

number 30125 765 and chassis number 377271 standing in the

name of one Deepak Bhiwani, s/o Raj Singh Bhiwani, resident of

Bhiwani and was of model 2007, as disclosed by the registration

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certificate found inside the vehicle. The documents recovered

also disclosed that the insurance policy of the car stood in the

name of Deepak Bhiwani issued on 18.11.2007. Further from

the dicky of the car, a driving licence of the victim Gagan Kumar

was also retrieved along with one small roll of tape, one scissor

and one black colour rope.

Investigation divulged that the Hona City car did bear

fake number HR 16 F 7337 which was stolen in the intervening

night of 30.11.2007/01.12.2007 from Delhi and for which FIR

number 255 dated 01.12.2007 was registered with Rajinder

Nagar Police Station. Though the Engine number and the chassis

number did match, the actual registration number was DL 4C

AH 4492.

On the completion of the investigative drill, charge-sheet

under Sections 364A, 392, 395, 397, 412, 465, 467, 468, 471,

474, 120B IPC and Sections 25/27 of the Arms Act was laid

against the accused persons. As hereto before stated, Gurinder

Singh @ Ginda died during the trial and the accused Rupinder

Pal was acquitted by the trial court. The other co-accused

Prabhijit Singh @ Sonu could not be arrested and was declared a

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proclaimed offender. The investigation however revealed that his

mobile number 94636-12914 had been used in the commission

of the offence.

4. Charges were framed against the accused persons

including the appellants under the above Sections of law to

which they pleaded 'not guilty', whereafter the prosecution

examined 27 witnesses. The accused persons in the course of

their statements under Section 313 Cr.P.C. stood by their denial

of the charge. While the appellant Sukhmeet Singh alleged

political vendetta to frame him in the case and that the police

had raided his house and had forcibly lifted Rs. 25 lakhs which

belonged to his father Jarnail Singh and was arranged by him for

the purchase of land, the others generally, but consistently

imputed false implication in the offence. Fourteen witnesses

were also examined in defence. The Trial Court on an

assessment of the evidence on record, to reiterate, convicted the

appellants and their co-accused under the above mentioned

sections of law. By the verdict assailed in the instant appeals,

the conviction and sentence recorded by the Trial Court have

been sustained.

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5. It is considered appropriate to revert to the rival

assertions for better comprehension after traversing the evidence

adduced to the extent unavoidable.

PW1 Gagan Kumar, the person kidnapped, testified that

at the relevant time, he was involved in Real Estate Business

with his father Subhash Chandra (PW2). About 15-20 days

before the incident on 09.01.2008, he received a call from mobile

number 9914413696 and the caller introduced himself to be

Ginda and expressed his keenness for effecting a property deal at

Jandiala, District Jalandhar, in course whereof, he offered to

sell the land of his aunt. The witness, though suggested that the

caller ought to get in touch with his father, the latter insisted for

necessary discussion with him. According to the witness, after

2/3 days, another call was made by the same person and

accordingly, they fixed up a time at 9.00 a.m. on the next date,

whereupon the victim along with his friend Chetan Chopra went

to the scheduled place of meeting. The witness stated that at the

time fixed, three persons came in a Innova car and thereafter the

victim and his friend along with two persons proceeded in the car

of the victim to survey the land. After the visit, they parted. The

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witness deposed that thereafter on many occasions, the same

caller made telephone calls to further the deal and eventually,

they decided to meet on 09.01.2008 at 9.00 a.m. for further

discussions.

According to the witness, he was there at the site in his

car bearing no. PB 08 BA 4700 and as stated by him on oath, at

the first instance, two persons came there and boarded his

vehicle. The victim was thereafter asked to proceed to the colony

where the owner i.e the aunt referred to, used to reside. The

witness stated that he took the vehicle to the place as directed.

The person sitting by his side then pointed a revolver on his ear.

Almost immediately thereafter, a Honda City car, driven at a high

speed, pulled up in front of his car, wherefrom 4-5 persons

alighted and attacked the victim. The witness stated that

whereas one person pointed the revolver on his thigh, the other

removed his licenced revolver along with his cell phone, keys of

the car and currency notes amounting to Rs.15,000/-. The

witness stated that thereafter a cap was placed on his face and a

tape was pasted on his mouth. After some time, his hands were

also tied and he was forcibly put into the dickey of the Honda

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City car. As the victim resisted, he was threatened to be killed

with his own revolver. After moving the car for some distance,

the abductors burrowed a hole in the rear seat of the car and the

victim was asked to contact his father over a cell phone. Under

compulsion, the victim talked to his father and acquainted him

with his state of distress and requested him to concede to their

request for his safety. The phone was thereafter disconnected.

According to the victim, for the whole day, he remained in the

dicky and could hear the exchanges of the occupants who were

addressing each other as Happy, Jassi, Ginda, Deputy and

Sabbi. He further stated that in the night, he was taken to a

room with an attached bathroom where he was allowed to ease

himself and thereafter was put on chains on his hands and feet

and was blindfolded as well. He was thereafter taken to different

places and was also offered food. Later, he was drugged. On

objection being raised, he was threatened to be killed with his

revolver. The victim stated that in the next morning, he found

himself tied with iron chain, whereafter he was restored in the

dicky of the car and the miscreants wandered around with him.

In between, he was made to talk to his father, whereupon he

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repeated his request to do the needful for his release. Later in

the night, the victim was informed by abductors that as the

ransom amount was received, he would be released soon. He was

threatened that in case, after his let off, he would disclose about

the incident to anyone, he would be killed along with his family

members. It was intimated, that they had strong political links

and even if they were arrested, they would come out of custody

soon and appropriately retaliate. The victim was thereafter

dropped at Nakodar Chowk.

The witness identified Sukhmeet Singh @ Deputy,

Ginda, Harpreet Singh @ Happy, Sabbi, Jassa and Harpal Singh

@ Chhota in Court to be those present in the Honda City in the

car and thus the perpetrators of the crime. The witness also

narrated, that on 12th, he was taken by the police to the place

from where he was kidnapped and that his statements were duly

recorded as well. He claimed to have identify the place and also

disclosed that he had dropped his driving licence in the dicky of

the car. He identified as well the driving licence produced in

court along with the iron chains by which his hands were tied

and the tape roll by which his mouth was muzzled.

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In cross-examination, this witness admitted that the

appellant Sukhmeet Singh at the relevant time was a Municipal

Councillor and he knew him from before the incident. He

however clarified that he did not have any personal

acquaintance/intimacy with him and that he was also not

conversant with his voice. He admitted as well, that he knew the

full name of the appellant at the time of making of the statement

before the police and the Magistrate. He however elaborated that

as the accused persons used to address him as Deputy, he did

use that name while making the statements. He also claimed to

be unaware then that Sukhmeet Singh and Deputy was one and

the same person. He also conceded qua his earlier statement

that at the time of his release at Nakodar Chowk, he had not

seen the appellant Sukhmeet present there. He also admitted

that there was no test identification parade held and that he as

well did not furnish the physical features of the miscreants to the

police. According to this witness, neither the recovered money

nor the weapons had been shown to him by the police. He

stated that by 24.01.2008, he could come to know the names of

all the accused persons from the newspaper. Vis-a-vis the name

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of Harpal Singh @ Chhota, the witness stated in particular that

he did not know him prior to the incident and that he mentioned

his name for the first time in the court.

A perusal of the statement made by the victim under

Section 164 Cr.P.C. demonstrates that the same is substantially

identical to the one on oath at the trial. The sequence of events

are in the same order and in particular, he reiterated the names

of Sonu Bhajji, Happy Bhajji, Ginda, Sabbi and Deputy while

referring to the persons in the car, while he was languishing in

the dickey thereof.

PW2 Subhash Chander, the father of the victim deposed

that at the time of the incident, his son was in real estate

business with him. He admitted that his son had mentioned to

him about the proposed deal which was being promoted by a

party of Jandiala on which he had advised the victim to inspect

the site so that a decision could be taken lateron. The witness

testified that on 9.1.2008, his son informed him that he had

received a telephone call in connection with the deal and that he

had fixed 9.30 in the morning for the said purpose. That on the

same day, his son had left for negotiations in his Lancer car PB

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08 BA 4700, was stated by him. According to the witness, at

about 11.45 a.m. on that day, he received a telephone call

conveying to him that his son had been kidnapped and further a

ransom amount of Rs. 5 crores was demanded for his release. The

witness stated that the caller also threatened him that if the

money demanded was not arranged, his son would be killed.

Thereafter, on his entreaties, he was allowed to talk to his son

who pleaded that the ransom amount be paid as otherwise, his

abductors, who were equipped with deadly weapons, may do harm

to him.

The witness stated that thereafter, he received a

telephone call from a mobile phone No. 9814804700 enquiring of

him about the arrangements made about the ransom amount.

According to the witness, subsequent thereto from time to time, he

kept on receiving telephone calls at the interval of 3/4 hours

about the progress in the collection of the ransom amount with

the insistence that the amount should be paid early, if he wished

the welfare of his son. In response to a call received at 9 pm on

the same day and on the expression of his inability to arrange

more than Rs. 1 crore, the caller asked him to await further

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instructions. By the next phone call at 10 pm, the abductors

informed the witness that no amount less than Rs. 1 crore was

acceptable to them.

The witness further stated that on the next date i.e.

10.1.2008, he received a call from the cell phone of his son at

8.30 a.m., and on the query made, he stated that by then, he

could arrange only 90-92 lakhs with great difficulty. This was

followed by another call at 10/11 a.m. from the same person

enquiring about the amount arranged to which the witness

replied that somehow he had been able to arrange Rs. 1 crore

and requested the abductors to close the deal. Eventually at

4.20 p.m., through another call, the abductors instructed the

witness to fill the money in two bags and take the train

“Shane Punjab” for Delhi . The witness on his request was

allowed to be accompanied by one attendant and he was

instructed to sit in the last compartment of the train with the

caveat that in case he would try to act smart or against the

instructions or inform the police, all his family members would

be eliminated. He was informed as well that he would be under

watch on the train.

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According to the witness, he took the money in two bags

and along with his friend Munish Berry boarded the train from

Jalandhar. He stated that on the way, he kept on receiving

telephone calls from the abductors to ascertain the stages of the

journey. He stated that when the train reached near Sirhind

Railway Station, they directed both of them to come near the left

side door of the compartment and wait for a flash signal while

the train would be reaching Raj Pura and to drop the bags when

the train would slow down near an over-bridge, 3/4 k.m. before

Raj Pura so that the same could be collected by them. The

abductors also assured them to release the victim after the money

was received.

The witness stated that as the train slowed down at the

place indicated, they threw away the two bags containing the

ransom money and proceeded towards Delhi. Subsequent thereto,

they took a train back to Jalandhar. Meanwhile, he received a

telephone call from the victim that he had reached home safely.

The witness deposed that on 12.1.2008 he along with victim and

2/3 friends, met the police at Jandiala on their way to police

station and narrated the entire incident. The witness stated that

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on 13.1.2008, he received a call from the police that the Lancer

car No. PB 08 BA 4700 has been located near Taj Hotel, Garha

Road, Jalandhar and thereafter on completion of the formalities,

the vehicle was handed over to his son. The witness in course of

his testimony, identified the two bags in which the ransom

money had been taken i.e. Ex. P9 and P10. He mentioned that

the currency was in the denominations of Rs. 1000, Rs. 500

and Rs. 100. He also clarified that on 5/6 packets of the

currency notes, he had inscribed initials/names like AS, KK, Om

Namah Shivah, Om Sri Ganeshay Namah, and Jai Hanuman.

The witness at the trial, identified the currency notes as a part of

the ransom money. The bundles of currency notes produced in

the court were marked as Ex. P11 to Ex. P68.

In his cross-examination, the witness admitted that

though he knew Sukhmeet Singh at the time of incident as he

was a Municipal Councillor, he clarified that he did not have any

personal relationship with him. He conceded that he had not

informed the police/Magistrate about the initials and names on

the packets of the currency notes. He however claimed that even

in absence of such initials/names, he could have otherwise

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identified the currency notes from the denominations thereof. He

however disclosed that his relations from whom money was

collected did inform that such initials/names had been inscribed

on the packets. He admitted that the FIR was registered on

11.1.2008. He elaborated on the names of the persons and

relations from whom different sums of money was taken on loan.

He specified the amounts as well. He stated that his statement

was recorded by the police on 12.1.2008.

PW4 SI Pritam Singh, who at the relevant time, was

posted at the Nurmahal Police Station, deposed that he did

partake in the investigation and had accompanied the I.O.

Inspector Satish Kumar Malhotra. He reiterated that on

11.1.2008, the I.O. received a secret information that the

accused persons Sukhmeet Singh, Gurinder, Jatinder and

Jaspreet had been seen moving near the office of DIG to

surrender before the police whereupon, they were arrested

thereat and cell phones were recovered from their possession

vide Ex. PF/1 to PF/3. He also stated about the disclosures

made by the accused persons following which various amounts

were recovered from the places shown by them. Vis-a-vis,

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Sukhmeet Singh, he stated that the revolver of the victim was

also recovered from the living room of the accused. He further

testified that on the disclosure of the accused appellant

Sukhmeet Singh subsequent thereto, along with cash of Rs. 25

lakhs, one revolver of .32 bore bearing No. B-3211 wrapped in a

plastic packet was recovered from the room of his house. The

witness stated that the cash as well as the other articles

recovered/seized were duly deposited in the malkhana.

He further deposed that on the basis of another secret

information received on 18.1.2008, appellant Harpal Singh @

Chhota was arrested and acting on his disclosure statement,

cash together with one country made pistol and one live

cartridge wrapped in a plastic packet was recovered from

underneath a tree on a Jandiala Road as shown by him. The

witness stated as well about further disclosure statements made

by the appellant Sukhmeet following which Honda City car HR

16 F 7337 was recovered from near the well of Gurinder Singh @

Ginda at village Bir Pind kept parked under the cover of standing

maize crop. The witness confirmed the recovery of one driving

licence, registration certificate, tape roll, small scissor and black

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string from the dicky of car which were duly seized vide recovery

memo Ex. PO/2. The witness also identified these items when

confronted therewith. He also stated about the collection of finger

prints on the car by a finger print expert.

He also stated about the arrest of accused Harpreet

Singh and recovery of mobile phone from him. He referred to a

disclosure statement made by said accused person leading to

discovery of Rs. 3.5 lakhs from the almirah of his house. That a

Qualis Car bearing number PB 10 AY 4144 was also recovered

on the disclosure statement made by the accused Harpreet was

stated by the witness.

He did similarly mention about the arrest of accused

Surinder Singh and recovery of Rs. 1,05,000 on the basis of his

disclosure statement, from the roof of motor at village Mullewal

Arian wrapped in a plastic envelope. The witness stated as well

about the arrest of accused Rupinder Pal and the recovery of cash

from him.

In his cross-examination, the witness conceded that the

arrest memo pertaining to Sukhmeet did not contain either his

signature or the signature of any public witness. He however

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denied that the memo was a forged one. He asserted to have

attested the disclosure statement of the appellant Sukhmeet

Singh which had led to the recovery of the Honda City car,

otherwise kept concealed. His statement made in the course of

his further cross-examination, being neither of any particular

significance nor referred to in course of the arguments, are not

being dilated upon.

PW5 Kashmir Singh, Finger Print Expert and

photographer from Finger Print Bureau, Phillaur, stated that on

21.1.2008, he had taken the photographs of the chance prints on

the window panes of the front door of the Honda city car bearing

HR 16F 7337 and also on the rear mirror fitted thereto. He

claimed to have prepared negatives of the chance prints and had

compiled the report on the basis thereof which he proved Ex.

PW5/A.

In cross-examination, he stated that the prints were

available on the glass surface and he did not rule out any other

type of print. He also stated that the prints collected were of the

palm surface of the hand. He also did not enquire as to who had

marked the chance prints.

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PW8 Inspector Satish Kumar Malhotra, S.H.O. P.S.,

Phillaur, is the investigating officer. He testified that on

11.1.2008, he was posted at Police Station Nurmahal and while

on patrol duty, he received a secret information that four persons,

who had kidnapped Gagan Mahendrau at gun point and had

abducted him in a Honda City car with a purpose to extract

ransom. He deposed to have forwarded the information for the

registration of the FIR and thereafter visited the place of

occurrence, where he could not find any one present. According

to him, he visited the same spot with other police personnel on

12.1.2008 and happened to meet, amongst others, the victim and

his father Subhash Mahendru there. On the basis of a secret

information received on 13.1.2008, the witness stated to have

recovered the victim's Lancer Car bearing No. PB 08 BA 4700

parked near Taj Hotel, Garah Road, Jalandhar. He summoned

the finger print expert and on the completion of the exercise

undertaken by the latter, handed over the car to the victim on the

completion of necessary formalities.

The witness stated that on 14.1.2008, from the call

details collected, amongst others the appellant Sukhmeet @

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Deputy was a suspect, whereupon he was arrested. The witness

stated that on 16.1.2008, on the basis of a secret information, the

appellant Sukhmeet was arrested along with Jatinder,

whereupon on their search, mobile phones were recovered. He

also referred to the disclosure statements made by the appellant

Sukhmeet Singh and Jatinder, on the basis of which, cash of Rs.

25 lakhs and Rs. 10 lakhs respectively were recovered from their

residences, kept in the plastic bags. According to the witness,

acting on the disclosure statement of appellant Sukhmeet, one

revolver of the victim was also recovered from his house.

Similarly, after the arrest of Gurinder Singh @ Ginda, Jasbir

Singh @ Jassi, Jatinder Singh @ Sabbi, on the basis of their

disclosure statements, different amounts in lakhs were recovered

from the places indicated by them. A .32 bore revolver bearing

No. B-3211 was also recovered on a later disclosure statement of

the appellant Sukhmeet Singh @ Deputy. Subsequent thereto,

according to the witness, again acting on the secret information,

appellant Harpal Singh @ Chhota was arrested and one mobile

phone was recovered from his possession. These accused persons

also made disclosure statements and acting thereon, currency

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notes were recovered along with a pistol along with a live cartridge

from beneath a tree near canal Jandiala. This witness further

deposed that the appellant Sukhmeet Singh also made a

disclosure statement pursuant whereto, the Honda City car

HR-16-F 7337 used in the commission of offense was recovered

being parked near the well of accused Ginda at Village Beer being

kept camouflage by standing maize crop thereat. The witness

also stated that on the search of the car, two iron chains, a

small scissor, tape roll, a black colour rope and a driving licence

in the name of the victim were recovered from the dickey of the

car. The finger print expert also took the photographs of the

prints available on the car. That a hole was also detected in the

rear seat of the car was mentioned in particular by the witness.

He also stated about the arrest of accused Harpreet Singh and

Surinder Singh as well, following which the phones mobile were

recovered from them. These accused also made disclosures

following which recoveries of huge cash kept in plastic envelopes

was effected. Apart from getting recorded the statement of the

victim and his father Subhash under Section 164 Cr.PC., the

witness claimed to have obtained the call details of mobile phones

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of the accused recovered from accused persons. He also identified

the seized articles including the Honda City and Lancer cars at

the trial and identified and exhibited other items like, revolver,

iron chain, tape rolls, currency notes etc. The witness, in course

of his testimony mentioned that on every occasion of seizure, he

had completed the necessary legal formalities in connection

therewith.

In his cross-examination, the witness admitted that the

victim had in his statement before him not mentioned particularly

about Harpal Singh @ Chhota, He also admitted, that no TIP of the

accused persons had been conducted. According to him, he did

make an application for such TIP, but the same was dismissed as

the accused persons refused to participate in the process. He

denied the suggestion, that the appellant Harpal Singh had not

refused to take part in the TIP. He admitted of a press

conference held on 17.1.2008, in which Senior Superintendent of

Police, Jalandhar had participated but expressed his ignorance

as to whether in the news item dated 18.1.2008, it was suggested

that there was a possibility of recovery of a country made pistol.

According to this witness, this news item was got published by the

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accused persons. He denied the suggestion that no

pistol/cartridge was recovered from the house of the accused

Harpal Singh @ Chhota. The remaining statements made by this

witness in the cross- examination are not of any added

significance and further have also not been referred to or relied

upon in course of the arguments.

PWs 10, 11, 12, 14, 16 are those, who on oath, stated to

have lent different amounts to the father of the victim to meet the

ransom demand. Of these witnesses, PW 14 in particular,

claimed to have put his identification marks on the packets of

currency notes like KK, AS, Jai Hanuman etc. and on the basis

thereof, he identified at the trial, the same when shown to him.

The common trend of cross- examination of these witnesses had

been to elicit from them that there was nothing in writing to

endorse such loan and that there was no transaction routed

through the bank as evidence thereof.

PW23 H.C. Kamaljit Singh deposed that on 23.1.2008 he

was a member of the police party, in-charge of the investigation of

the case. According to him, appellant Harpal Singh @ Chhota

present in the court and who was then in police custody, made a

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disclosure statement signed by him and further led the police

party to the eastern side of Jandiala, Nurmahal Canal, from where

he dug out a country made pistol wrapped in a polythene bag

together with cash amounting to Rs. 65000/-. The witness stated

that the recovered pistol was seized by memo PW23/A on which

he along with others put their endorsements by way of

attestation.

In cross-examination, the witness however admitted

that no independent witness was present when the disclosure

statement was recorded. He however denied that neither such

statement had been recorded nor was any recovery caused on the

basis thereof and in his presence.

PW24 Sumesh Makkar proved the call details of cell

phone number 94636-12914 of Prabhjeet Singh, absconder

accused. In this regard, he amongst others, proved the necessary

documents to establish that the said accused person had applied

for such connection.

PW25 Damandeep Singh, Nodal Officer, Vodafone, Essar

South Limited, Mohali, deposed with regard to the mobile SIM

number 99881-31831 standing in the name of Manjinder Singh

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r/o VPO Malsian Patti, Saltan Nagar, Jalandhar. Apart from

proving the documents, on the basis of which the mobile

connection was obtained by the holder thereof as named herein

above, the witness also proved computer generated details of the

said cell phone for the period 9.1.2008 to 16.1.2008 in the form of

a printed copy which, he asserted was the true extract of the

relevant data created in the usual and ordinary course of

business and stored in the hard disc of the company server. He

exhibited the call details as Ex. PW25/C.

Though this witness was formally cross-examined, not

even a suggestion was made that the call details so proved, were

inadmissible in law due to non-compliance of the requirements of

Section 65B of the Indian Evidence Act, 1872 (hereinafter to be

called as “the Act”).

PW26 Sunil Rana, Nodal Officer, Bharti Airtel Limited,

Mohali, aside the necessary records with regard to the

applications pertaining to SIM number 98151- 58151 recovered

from accused Jatinder Singh and standing in the name of Iqbal

Singh, 98154-03503 standing in the name of accused Surinder

Singh, 98150-29026 in the name of Davinder Kumar,

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98760-87794 of Jaspal Singh, 98760-63085 of Amrik Singh,

98766-81782 of Pavittar Singh, 98158-54784 of Varinder Singh

and 98723-00707 of Pradeep Singh, also proved the call details

pertaining to these cell phones for the period 8.1.2008 to

31.1.2008 and exhibited the corresponding documents. This

witness stated that the call details proved, were computer

generated and in the shape of printed copy which were true

extracts of the relevant data created in the usual and ordinary

course of business and stored on the hard disc of the company

server.

In cross-examination, the witness expressed ignorance

with regard to the names of the accused persons and further

admitted that though the tower numbers qua the calls were not

mentioned, the tower cell I.Ds. were referred to.

PW27 Soaravdeep Singh, Nodal Officer, Spice

Communications Limited, Mohali proved the location list of all the

towers of his company during January 2008 with the cell I.D. of

various towers and exhibited the said document as Ex. PW27/A. He

also proved the call details for the period 9.1.2008 to 16.1.2008

relating to mobile SIM numbers 98140-60441, 98148-81082

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(recovered from accused Gurinder) and 98553-64086 (recovered

from appellant Sukhmeet) and 99144-16396 of Naresh Kumar and

exhibited the documents with regard thereto separately.

In cross-examination, the witness clarified that the cell

numbers 98148-81082 and 98553-64086 functioned between

11.1.2008 to 16.1.2008 whereas the others were not put to use

after 10.1.2008. He further asserted that the call details had been

issued by him from the computer which was under his control and

did bear his signature on each of the pages. He conceded however

that no certificate of correctness was appended thereto. The

witness clarified that the calls were computer generated which did

not admit of any manual intervention. He admitted further that the

call details did refer to cell I.D. indicating the tower location.

According to him, no document was taken into custody by the

police from him under his signature. He admitted as well that the

documents produced by him do not bear the date of their

preparation and further there was no reference of the server therein

as well.

6. To complete the narration of the evidence adduced,

apposite it would be to briefly survey the testimony of the defence

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witnesses.

DW1 Gurdeep Singh, who was then the Senior

Assistant, State Bank of India, New Grain Market, Jalandhar

proved the statement of account in the name of Jarnail Singh,

father of appellant Sukhmeet for the period 30.6.2007 to

30.6.2008 which disclosed, amongst others that the holder had

withdrawn Rs. 10 lakhs from his account on 7.11.2007.

DW2 Naginder Singh deposed about the proposed sale

of the land of Jarnail Singh situated at village Rasoolpur for Rs. 32

lakhs and further that on the basis of an written agreement, he

had paid by way of Rs. 8 lakhs by way of advance on 6.12.2007

and further Rs. 6 lakhs on 21.12.2007 to Jarnail Singh. The

witness however admitted that due to some financial compulsions,

the finalization of the deal had to be deferred. In

cross-examination, the witness conceded that the stamp papers of

the agreement had been purchased by Jarnail Singh, 1/2 months

earlier thereto. He however denied the suggestion that the written

agreement Ex. D2 referred to by him was a fabricated document.

DW3 Jarnail Singh, father of the appellant Sukhmeet

Singh in substance testified that the false implication of his son

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in the case was motivated by political rivalry. He deposed that on

14.1.2008, the police raided his house and and had taken away

Rs. 25 lakhs which he had kept for purchasing land near

Jalandhar. According to him, out of the said amount, Rs. 10

lakhs had been withdrawn by him from the bank and that the rest

had been deposited with him by way of advance money for selling

his land to Naginder Singh and Manmohan Singh. According to

him, the agreement for sale of his land had been scribed on

6.12.2007 on the stamp paper purchased by him.

DW8 Sushil Kumar on oath stated that he belonged to

the Congress Party and accused Jatinder Singh @ Sabbi was his

supporter. He also referred to recent confrontations with the

members of the rival political party during some elections for

which criminal cases had also to be registered. According to the

witness, accused Jatinder Singh @ Sabbi had been falsely

implicated in the case.

7. Mounting challenge to the decision impugned, Mr. R.

Basant, learned senior counsel arguing for the appellant in

Appeal No. 2539 of 2014, has insistently urged that having regard

to the evidence adduced by the prosecution, the complicity of the

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accused Harpal Singh @ Chhota remains unproved. According to

him, the charge of this accused being either a part of the alleged

conspiracy or a partner in the execution thereof, is belied by the

materials on record. The learned senior counsel has maintained

that the sequence of events, as sought to be unfolded by the

prosecution, warrant that the roles of the accused persons

allegedly involved be analysed individually in order to determine

the nature and extent of their involvement. Mr. Basant asserted

that not only the evidence forthcoming after the arrest of Harpal

Singh @ Chhota together with the recovery of cash or fire arm and

the Honda City car does not in any way establish any nexus with

him and the crime perpetrated, the calls details of the cell phones

said to have been involved are per se inadmissible in evidence in

the face of apparent non-compliance of the mandatory

prescriptions of Section 65B of the Act. The learned senior

counsel underlined that the finger prints collected from the Honda

City car did not match with that of any of the accused persons

sent up for trial and in absence of the TIP, their identity, as

participants in the offence, has also remained unproved. The

learned senior counsel was particularly emphatic on the aspect

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that the victim noticeably did not either name or refer to the

appellant Harpal Singh @ Chhota in his statements under

Sections 161 and 164 Cr.P.C., which were the earliest in point of

time, to be one of his abductors and that he sought to improve on

him by naming him only at the trial. The learned senior counsel

maintained as well that the inexplicable omission on the part of

the prosecution to examine Chetan Chopra, the friend of the

victim, who had accompanied him in the first round of discussion

on the land deal, laid as a preface according to the prosecution,

culminating in the abduction, renders the charge, doubtful.

According to Mr. Basant, the examination of the appellant Harpal

Singh @ Chhota under Section 313 Cr.P.C. had been general and

omnibus without laying the specific incriminating circumstances

against him, thus, denying him the opportunity to explain the

same. On this count as well, the impugned conviction is

unsustainable in law and is liable to be set-aside, he urged. In

buttressal of the plea against admissibility of the calls details, the

learned senior counsel has placed reliance on the decision of this

Court in Anvar P.V. vs. P.K. Basheer and others (2014) 10 SCC

473.

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Mr. Subromaniam Parsad, learned senior counsel for the

appellant in Criminal Appeal No. 388 of 2015 in supplementation

repudiated the testimony of the victim in particular in identifying

appellant Sukhmeet @ Deputy to be one of his abductors. He has

urged that it having been admitted by the victim that the appellant

Sukhmeet was known to him from before the incident, reference

about him by his nick-name Deputy, renders his testimony to this

effect wholly untrustworthy. The learned senior counsel has

similarly dismissed the recovery/seizure of currency notes, fire-arms

and the Honda City car in particular, as unworthy of any reliance or

significance, besides being effected without adhering to the legally

prescribed procedure, therefor. Referring to the evidence of DW1,

DW2 and DW3 in particular, about the seizure of cash from the

house of Jarnail Singh, the father of appellant Sukhmeet Singh, Mr.

Prasad has insisted that this amount had no nexus at all with the

ransom money, said to have been paid. He discarded as well the

endeavour on the part of the prosecution through PW14 to identify

some of the currency notes on the basis of initials/names written on

some of the packets containing the same. According to the learned

senior counsel, the prosecution has utterly failed to adduce

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unimpeachable evidence to establish the culpability of the

appellants and thus the impugned decision, as a whole, is liable to

be set at naught.

Per contra, the learned counsel for the respondent-State,

has maintained that the evidence adduced when considered in

entirety, does establish the indictment against all the accused

persons convicted, beyond all reasonable doubt. He urged that the

prosecution has been successful in substantiating the involvement

of the accused persons in the nefarious and willful design of theirs

to abduct the victim for ransom and having regard to the gravity of

the proved offences, no interference is called for. In particular, he

has contended that the defence having failed in its endeavour to

de-link the currency notes, seized from the house of Jarnail Singh,

the father of the appellant Sukhmeet Singh from the ransom money

paid, he is not entitled to any benefit therefrom.

8. We have extended our thoughtful scrutiny to the

materials available on record as well as the competing arguments

based thereon. Admittedly, the only eye witness to the actual act of

abduction is the victim himself who had suffered the ordeal. He

thereafter encountered the treatment meted out to him in captivity

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and is privy too, to the ransom claim made by his abductors to his

father. The statement made by the victim (PW1) under Section 161

Cr.P.C. though had outlined the whole incident in the bare

essentials, his version under Section 164 Cr.P.C. and at the trial are

adequately elaborate to project the whole gamut of the development,

commencing from his forcible abduction till his release. There is as

such no mutually mutative inconsistency in the three renditions of

his, so as to render the prosecution case untrustworthy and

discardable on all counts. True, it is that the victim in his

statements under Sections 161 and 164 Cr.P.C. did not specifically

name Harpal Singh @ Chhota, while naming the other abductors

who were the occupants as well of the Honda City car in the dickey

of which he was abducted, he did identify and involve this

appellant/accused during his testimony at the trial. Not only, in

our comprehension, it is likely that in his bewildered and perplexed

state of mind at the relevant point of time, he might have omitted to

name Harpal Singh @ Chhota, in the face of the other overwhelming

evidence and materials on record, nothing much turns thereon in

favour of the defence.

The progression of events as unveiled by the testimony,

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in particular of the victim and supported by his father PW2, reveals

that the first caller to initiate the negotiations for the land deal to

which the victim was drawn, was Gurinder Singh @ Ginda. The

victim in his deposition has in details narrated the developments

thereafter which do indicate the keenness on the part of the

negotiators to entrap the victim in the bargain, by gradually building

his confidence in the same and in the proponents. These

endeavours, as the prosecution has asserted, really were the build

up steps as a part of the conspiratorial scheme to eventually

culminate in the abduction of the victim for realisation of ransom in

return. Noticeably the perpetrators did not betray any haste on

their part and designedly took their time to strike at the opportune

moment.

The evidence of the victim (PW1) as a whole, in our

estimate, is truthful, having regard to the details provided with

accompanying clarity and conviction. His elaborate testimony not

only has projected the stage-wise developments following his

abduction till his release, the same has remained unshaken

substantially even by his cross-examination. This witness not only

had the opportunity of seeing his abductors but also had heard their

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exchanges by referring to their nick names. He was in their

company and under their surveillance for almost two days in course

whereof they not only interacted with him but also had closely

followed his conversion with his father on more than one occasion

on the aspect of ransom. Apart from the fact that there is nothing

convincing on record to even infer any false implication of the

accused persons, we are of the unhesitant opinion that the mere

omission on the part of the victim to mention at the first instance

the name of appellant Harpal Singh @ Chhota, having regard to the

charge of conspiracy and the concerted steps, to actualise the same

is of no fatal bearing on the prosecution case, more particularly he

having named/identified him at the trial as one of the perpetrators

of the offence. In this perspective, the omission on the part of the

investigating agency to hold the TIP is not fatal, in the facts and

circumstances of the case.

In the face of the overall evidence on record, the above

purported deficiencies do not at all detract from the veracity of the

prosecution case .

The evidence adduced vis-a-vis the stage wise recovery

of the currency notes, fire-arms, the Honda City car etc. from the

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successive disclosures made by the accused persons also do

establish their complicity in the offence. The testimony of the

witnesses to the above effect authenticate that the procedure

prescribed by law for effecting such seizures had been complied

with. The factum of each discovery based on the disclosures of the

accused persons is not only a relevant fact under Section 27 of the

Act but also noticeably has not been very seriously disputed by the

defence. These seized articles have been produced and identified in

the court by the witnesses as well. The testimony of the lenders and

that of PW14 in particular, identifying some of the packets of the

currency notes by the initials or the names as labelled by him also

cannot be lightly ignored. PW2, the father of the victim, apart from

stating generally about the abduction of his son and his release has

however in minutest details described the particulars of the ransom

calls received and his desperate endeavours to collect the amount to

the extent possible within the dead line of time to save his son in

distress. The witnesses examined by the prosecution as the lenders

of different amounts not only were referred to by this witness in his

deposition, to reiterate they also endorsed to have responded to his

clarion call.

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Having regard to the series of frightful experiences which

the victim had to encounter during his captivity of a period of almost

two days in the scary company of his abductors and the fearful

moments that he had to pass under the constant threat of being

killed by them, as threatened from time to time, it is natural that he

must have had sufficient opportunity to note their features to

enable him to identify them even by their looks at a later point of

time. That the abductors, during the relevant time, had intimidated

the victim as well as his father that if the ransom amount

demanded is not paid in time, the hostage would be done away

with, has been stated on oath by both of them in categorical terms.

The manner in which the victim was abducted and was shifted

from place to place parallely following up the demand of ransom

under the threat of his elimination leaves no manner of doubt that

they had resorted to a plot to extract a handsome amount by way

of ransom under the threat to the life of victim. We are thus left

unconvinced by the defence plea of want of identification of the

abductors including the appellants. The omission on the part of the

victim to refer to the appellant Sukhmeet by his name instead of his

nick-name Deputy also does not appeal to us. The victim in his

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deposition has clarified that though he knew Sukhmeet Singh was

a Municipal Councillor, but had no personal intimacy with him so

as to be able to identify him by seeing him.

9. Noticeably all the recoveries, be it of currency notes,

fire- arms, the cars and the seizures of various articles therefrom

have been on the basis of disclosures made by the accused persons

from time to time which were duly recorded in the presence of the

witnesses, as required in law. Not only the Honda City car proved

to have been used in the commission of the offence was traced out

being parked near the well of the accused Gurinder Singh @ Ginda

under the cover of standing maize crop thereat, the seizure, amongst

others of the driving licence of the victim from the dicky thereof

lends formidable support to the credibility of the prosecution case.

In all the cases of recovery, as the evidence demonstrates, the

accused persons including the appellants after making the related

disclosures had led the investigating agency to the places wherefrom

seizures were made. That the seized articles were duly deposited in

the appropriate custody and were produced at the trial and

identified by the witnesses are also matters of record.

10. It is no longer res integra that the “fact discovered” as

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envisaged under Section 27 of the Act, in consequence of any

information received from a person in the custody of a police officer,

embraces the place from which any object is produced and the

knowledge of the accused as to this provided the information given

relate distinctively to the fact, as had been held by the Privy Council

in Pullukuri Kotayya and others vs. King Emperror, AIR 1947

PC 67. This enunciation, hallowed by time, has been oft quoted with

approval by this Court in a plethora of subsequent pronouncements

while interpreting the scope and purport of the above legal

provision.

Amongst others in Bodhraj @ Bodha and Others vs.

State of Jamu & Kashmir (2002) 8 SCC 45, it has been elucidated

that the doctrine is founded on the principle that if any fact is

discovered in a search made on the strength of any information

obtained from a prisoner, while in the custody of a police officer,

such a discovery is a guarantee that the information supplied by

the prisoner is true. It had been held that the information may be

confessional or non inculpatory in nature, but if it results in

discovery of facts, it becomes a reliable information.

It is unnecessary, in view of such a settled propounded

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legal postulation to multiply authorities on the point. Suffice it to

state in the backdrop of the state of law on the admissibility of the

information of a person accused of any offence in the custody of a

police officer so far as it relates distinctly to the fact thereby

discovered, the irresistible conclusion in the facts of the case in

hand is that the disclosures made by the accused persons leading

to the recoveries and seizures are indeed relevant facts in support

of the charge levelled against them.

11. Qua the admissibility of the call details, it is a matter of

record that though PWs 24, 25, 26 and 27 have endeavoured to

prove on the basis of the printed copy of the computer generated call

details kept in usual ordinary course of business and stored in a

hard disc of the company server, to co-relate the calls made from

and to the cell phones involved including those, amongst others

recovered from the accused persons, the prosecution has failed to

adduce a certificate relatable thereto as required under Section

65B(4) of the Act. Though the High Court, in its impugned

judgment, while dwelling on this aspect, has dismissed the plea of

inadmissibility of such call details by observing that all the

stipulations contained under Section 65 of the Act had been

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complied with, in the teeth of the decision of this Court in Anvar

P.V. (supra) ordaining an inflexible adherence to the enjoinments of

Sections 65B(2) and (4) of the Act, we are unable to sustain this

finding. As apparently the prosecution has relied upon the

secondary evidence in the form of printed copy of the call details,

even assuming that the mandate of Section 65B(2) had been

complied with, in absence of a certificate under Section 65B(4), the

same has to be held inadmissible in evidence.

This Court in Anvar P.V. (supra) has held in no

uncertain terms that the evidence relating to electronic record being

a special provision, the general law on secondary evidence under

Section 63 read with Section 65 of the Act would have to yield

thereto. It has been propounded that any electric record in the form

of secondary evidence cannot be admitted in evidence unless the

requirements of Section 65B are satisfied. This conclusion of ours is

inevitable in view of the exposition of law pertaining to Sections 65A

and 65B of the Act as above.

12 Be that as it may, on an overall assessment of the

entire gamut of evidence, we are of the comprehension that the

charges against the accused persons including the appellants stand

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proved beyond reasonable doubt even sans the call details. To

reiterate, the gravamen of the imputations levelled against them

is that of conspiracy and abduction of the victim pursuant thereto

for ransom by detaining him under the threat to cause death or

hurt and thereby to compel his father to meet their demand.

13. As it is, as has been exposited by this Court on

umpteen occasions, conspiracy requires an act i.e. actus reus and

an accompanying mental state i.e. mens rea. Whereas the

agreement constitutes the act, the intention to achieve the unlawful

objectives of the agreement comprises the required mental state.

This Court in Ferozuddin Basheeruddin and Others vs. State of

Kerala (2001)7 SCC 596 held that conspiracy is a clandestine

activity and by the sheer nature thereof, an agreement to that effect

can rarely be established by direct proof and must be inferred from

circumstantial evidence of cooperation between the conspirators. It

has been enunciated that conspiracy is not only a substantive crime

but also serves as a basis for holding one person liable for the crime

of others where application of the usual doctrines of complicity

would not render that person liable and thus the test of the role of

a co-conspirator would be decisively significant in determining the

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liability of the others in the face of the supervening fact that the

crime was performed as a part of a larger division of labour to

which the accused had also contributed his efforts. Qua the

admissibility of evidence, it was proclaimed that loosened standards

prevail in a conspiracy trial and contrary to the usual role, in

conspiracy prosecutions, any declaration by one conspirator made

in furtherance of a conspiracy and during its pendency, is

admissible against each co-conspirator. It was thus ruled that

conspirators are liable on an agency theory by the statements of

co-conspirators, just as they are for the overt acts and crimes

committed by their confreres.

In a later pronouncement in Mir Nagvi Askari vs.

Central Bureau of Investigation (2009)15 SCC 643, it was ruled

in the same vein that while drawing an inference from the materials

brought on record to arrive at a finding as to whether the charge of

the criminal conspiracy had been proved or not, it must be borne in

mind that a conspiracy is hatched in secrecy and it is difficult, if not

impossible, to obtain direct evidence to establish the same. The

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following extract from the decision in Mohd. Amin Vs. CBI (2008) 15

SCC 49 was quoted with approval:

“74. The principles which can be deduced from the above-noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy.”

As would be patent from the above excerpt that qua a charge

of conspiracy, it is not necessary that all the conspirators should

know each and every detail of the plot so long as they are

co-participators in the main object thereof and it is also not

necessary that all of them should participate from the inception of

the stratagem till the end, the determinative factor, being unity of

object or purpose and their participation at different stages. Such

is therefore the encompassing sweep of culpability of an offence of

conspiracy, if proved, even from the established attendant

circumstances.

14. Having regard to the proved facts and the state of law,

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adverted to hereinabove, we are of the considered view that the

prosecution has been able to prove the charges levelled against the

appellants. Both the courts below have analysed the evidence in the

correct perspectives and in the face of the conclusions recorded

on the different aspects of the imputations levelled against them,

we are of the opinion that no interference is called for with the

impugned judgment of conviction and sentence recorded against

them. The appeals thus fail and are dismissed. Registry is directed

to transmit the original record to the Trial Court immediately.

…...........................................J.

(A.K. SIKRI)

…..........................................J. (AMITAVA ROY)

NEW DELHI; NOVEMBER 21, 2016.

HARPAL SINGH @ CHHOTA Vs STATE OF PUNJAB

HARPAL SINGH @ CHHOTA Vs STATE OF PUNJAB