Appeal against the Hon’ble High Court confirming the conviction
1. The appellants were subjected to trial in the Court of learned Additional Sessions Judge, Panchkula(hereinafter being referred to as the ‘trial Court’) in Sessions Case No. 11 of 2003 for the offences punishable under Sections 364A, 392 and 120B of the Indian Penal Code, 1860(hereinafter being referred to as ‘IPC’).
2. Being aggrieved by the conviction and sentences awarded by the learned trial Court, the appellants preferred separate appeals before the Punjab and Haryana High Court. The Division Bench of the Punjab and Haryana High Court dismissed the appeals preferred by the appellants vide common judgment dated 19th January, 2009 affirming the judgment passed by the learned trial Court and upholding the conviction and sentences of the appellants.
3. The aforesaid judgment rendered by the Division Bench of the Punjab and Haryana High Court is subjected to challenge in these four appeals.
Secret information regarding gang indulged in demanding ransom from parents after kidnapping the children
5. On 15th April, 2003 Jai Singh, SI(PW-27), Police Station, Sector-5, Panchkula, while being present near the market of Sector 16, Panchkula along with the police team in connection with patrol duty and crime checking, claims to have received a secret information to the effect that a gang was operating in Panchkula which was indulged in demanding ransom from parents after kidnapping the children and in case of non-payment of ransom, threats were given to eliminate the kidnapped children. It was further divulged in the information that such type of incident had already occurred in Kothi No. 81-A, Sector 17, Panchkula.
Kidnapping story
7. Mahesh Garg(PW-1) stated that on 2nd April 2003, his son Sachin Garg had gone to play badminton at the playground of Sector 7, Panchkula, in a car, but he did not return till 9:00 pm. Thereupon, he along with his family members made efforts to trace Sachin Garg out. He received calls from Mobile Nos. 9815XXXXXX and 9815XXXXXX and the caller(s) informed them that Sachin Garg(PW-2) was in their custody and demanded ransom to the tune of Rs. 1 crore for his release. The caller(s) also threatened that in case, the ransom demand was not satisfied, Sachin Garg would be eliminated. A threat was also given to eliminate the entire family in case any intimation was given to the police.
8. Fearing for the life of his son, Mahesh Garg(PW-1) arranged money from his relatives, friends and his own bank accounts. He again received calls on 3rd April, 2003 threatening him not to inform the police. He was further directed to reach a designated place with the ransom amount and to wait for further instructions. Accordingly, he took the ransom amount to the address given by the miscreants i.e. Sector 17, Chandigarh, thereafter, to Sector 8, Chandigarh and ultimately to PGI hospital. On reaching there, he received another call and was directed to leave the bag with the ransom amount in his car and to proceed to the emergency ward of the hospital and wait for further instructions. Accordingly, he left the briefcase containing the money in the car and proceeded to the emergency ward of PGI hospital. However, he did not find anyone present there. After some time, he received another call asking him to leave the place and wait for another call with the assurance that his son would be released along with the car after the cash amount had been counted and verified. He received another call by which he was informed that his car was parked near the chowk of Sector 11/15, Chandigarh. Accordingly, he took the car and proceeded to his house. At about 10:30 pm, another call was received informing him that his son Sachin Garg(PW-2) was standing near the chowk of Sector 20, Panchkula. He brought Sachin Garg(PW-2) back home from that place. He again received a call threatening that if any attempt was made to inform the police, then the entire family would be eliminated. Thus, out of fear, they did not approach the police.
9. Sachin Garg(PW-2) in his statement(Exhibit-DB) recorded by the Investigating Officer (PW-37) on 20th April, 2003 under Section 161 of the Code of Criminal Procedure, 1973(hereinafter being after referred to as ‘CrPC’) stated that on 2nd April, 2003, he had gone to Sector 7, Panchkula in his car for playing badminton. While he was returning home, and had reached near Sector 17, Panchkula, a Maruti car obstructed his path. Three persons came out of the car from which one was carrying a pistol. The said assailant placed the pistol against his head and asked him to shift to the adjoining seat. The second assailant armed with a knife occupied the rear seat. He was then directed to shift to the rear seat. His wrist watch, ATM card, school card, gold chain and some money lying in his pocket were robbed at pistol and knife point. In the meantime, the third assailant who was also armed with a knife took the driver’s seat and his car was driven towards the pulia where Sachin Garg(PW-2) was blindfolded and shifted into the Maruti car and was taken away to some unknown location. He was kept confined in a room during the intervening night of 2nd and 3rd April, 2003. A person named Gaurav Bhalla was present in the room and he was calling out names of the other accused as Sanjay, Mintu and Gaurav. He was again blindfolded in the evening and was taken in a car and was dropped off at the market of Sector 20, Panchkula with the instruction to remove the blindfold(patti) after 10 minutes and stand there and wait for his father. The accused threatened to eliminate his entire family in case intimation of the incident was given to the police. On returning home, he came to know that his father had paid an amount of Rs. 1 crore for securing his release.
10. Further investigation revealed that Gaurav Maini was using Mobile No. 9814XXXXXX, Gaurav Bhalla was using Mobile No. 9814XXXXXX and Sanjay @ Sanju was using Mobile No. 9814XXXXXX.
Further sections of IPC were added to the case
11. Based on the statements of Mahesh Garg(PW-1) and Sachin Garg(PW-2), offences punishable under Sections 392, 342, 364A and 506 IPC were added to the case on 20th April, 2003.
Disclosure statement of accused and based on that amount recovered
12. The accused Pankaj Bansal, Gobind, Amit Verma and Gaurav Maini were arrested on 29th April, 2003. It is alleged that Gaurav Maini suffered a disclosure statement under Section 27 of the Indian Evidence Act, 1872(hereinafter being referred to as ‘Evidence Act’) divulging that he, along with Gaurav Bhalla, Sanjay @ Sanju and Munish Bhalla had kidnapped Sachin Garg (PW-2), who was released after collecting an amount of Rs.1 crore as ransom. The accused Gaurav Bhalla was arrested on 1st May, 2003 and he too suffered a disclosure statement under Section 27 of the Evidence Act. Likewise, the accused Munish Bhalla and Sanjay @ Sanju also made disclosures to the Investigating Officer(PW-37) under Section 27 of the Evidence Act.
“Tabular column”
Charge sheet was filed against seven accused under sections 364A, 392 and 120B IPC
14. Upon completion of the investigation, a charge sheet came to be filed against seven accused persons in the Court of learned Chief Judicial Magistrate, 1st Class, Panchkula. The offence under Section 364A IPC being exclusively sessions triable, the case was committed to the Court of learned Additional Sessions Judge, Panchkula for trial. The learned trial Court framed charges against the accused Gaurav Maini(A1), Gaurav Bhalla(A2), Munish Bhalla(A3) and Sanjay @ Sanju(A4) for offences punishable under Sections 364A, 392 and 120B IPC. They denied the charges and claimed trial. The remaining three accused namely Pankaj Bansal, Gobind and Amit Verma were discharged.
Trial
15. The prosecution examined 37 witnesses and exhibited 125 documents in order to bring home the charges. The accused were questioned under Section 313 CrPC. They denied the prosecution allegations and claimed to be innocent. Gaurav Maini(A1) made a pertinent assertion that he had no concern whatsoever with the alleged crime and the case was totally cooked up. Gaurav Bhalla(A2) stated that he was involved in a love affair with Shivani @ Kaku, daughter of Mahesh Garg(PW-1) since 3 to 4 years prior to the occurrence. Shivani @ Kaku used to send him greeting cards as an expression of love. She often used to ring him up from her mobile phone and landline numbers. On 1st April, 2003, Shivani @ Kaku approached him and pressurized him to elope with her. He tried to reason with her that it was not the right step and advised her to return home. Since, she was pressurizing him for marriage, he assured her that they would marry. He was illegally detained by the CIA officials on 26th April, 2003 and was kept confined and tortured in custody. No recovery was effected from him and all the recoveries were manipulated. The other accused also denied the prosecution allegations and claimed to be innocent. Four witnesses were examined in defence.
Conviction and rejection of appeal by the Hon’ble High Court
16. After hearing the arguments of both the sides and analysing the evidence, the learned trial Court proceeded to convict and sentence the accused appellants (A1, A2, A3 and A4) as above vide judgment and order dated 26th September, 2005. The appeals preferred by the appellants against the judgment rendered by the trial Court were rejected by the Division Bench of the Punjab and Haryana High Court vide judgment dated 19th, January, 2009 which is subjected to challenge in these four appeals by special leave.
Discussion and Conclusion
Neither the victim of kidnapping nor his family members reported the incident to the police
26. At the outset, we are of the opinion that the very inception of the prosecution case is shrouded under a grave cloud of doubt and we shall record our reasons for the above conclusion while discussing the prosecution evidence. It is undisputed that neither the victim Sachin Garg nor his family members ever reported the incident to the police. Sachin Garg(PW-2) deposed that when he was driving on the road dividing Sectors 17 and 18, three miscreants obstructed his path. They had come in a Maruti car. One of them placed a pistol against the head of Sachin Garg and asked him to shift to the adjoining seat. The other assailant was armed with a knife and he directed Sachin Garg to shift to the rear seat of the car and snatched away his gold chain. The person holding the pistol came and sat beside him. The third assailant who too was armed with a knife, occupied the driver’s seat and extended a threat. His wrist watch, ATM card, identity card and some cash amount were also snatched away by the same person who had taken the gold chain. The miscreants then put a blindfold on his eyes and drove away the car. Sachin Garg(PW-2) admitted that while being blindfolded, he could identify the driver as Gaurav Bhalla(A2). He was taken to an unknown location where they reached after driving for 45 minutes. He was kept confined in a room for the entire night with the blind-fold. He overheard the accused appellants talking to each other and, thus, he managed to catch their names. Then, he was taken in a car and accused appellants told him that they would be releasing him at a place from where, his father would pick him up. He was extended a threat that in case he disclosed about the occurrence to anyone, his entire family would be eliminated. He was dropped off after some time. He opened the blind-fold(patti) and found himself standing in Sector 20, Panchkula. Ten to fifteen minutes later, his father arrived and took him home. Thereafter, he came to know that his father had paid a sum of Rs. 1 crore as ransom for securing his release.
Police did not ask for identification proceedings not the description of the accused
27. In cross examination, Sachin Garg(PW-2) admitted that the gold chain which had been snatched by the accused appellants was returned to him at Sector 20, Panchkula and the ATM card was returned to him by the police officials. The witness admitted that he was never called by the police officials to join any identification proceedings. He had randomly gone to the CIA officer with his father where he saw the accused from some distance. A pertinent admission was made by the witness that he had identified the accused appellants and had overheard them taking names of each other and that he had disclosed these facts to his father Mahesh Garg(PW-1) and grandfather Shamlal Garg. The witness also admitted that when the police officials recorded his statement, he did not give the description about the features of the accused.
Defence suggestion is that the sister of the victim was in relationship with A2 this story was cooked up
28. A pertinent suggestion was given by the defence to the witness(PW-2) in cross examination that his sister Shivani @ Kaku was involved in a relationship with Gaurav Bhalla(A2) and that both of them eloped on 1st April, 2003. Shivani @ Kaku returned on 14th April, 2003, whereafter, the case was cooked up by concocting a story against Gaurav Bhalla(A2) and other accused who were his friends and relatives. However, he denied the said suggestion. The witness(PW-2) was confronted with his previous statement under Section 161 CrPC statement(Exhibit-DB) wherein he had named Gaurav Bhalla(A2) as the fourth accused. He admitted that his statement was recorded by the police officials for the first time on 20th April, 2003 and that the police officials had visited his house once or twice earlier.
31. Neither of the witnesses stated that the kidnappers allowed Sachin Garg (PW-2) to talk to his family members so as to lend assurance about his safety. In this background, it is hard to believe that Mahesh Garg (PW-1) would rely upon such an unverified telephone conversation and proceed to collect a huge sum of Rs. 1 crore and thereafter, leave it in an unsecured condition inside his car without having any assurance whatsoever regarding the safety of Sachin Garg(PW-2) for whose purported release the ransom amount had been demanded. This is a grave lacuna which brings the entire prosecution case under a cloud of doubt. In the natural course of human conduct, the family members of the kidnapped person would expect and require some kind of assurance about the victim’s safety before agreeing to part with a huge sum of money as ransom.
PW.1 stated that he has received back the amount through court but no records available as such
33. A perusal of the deposition of Mahesh Garg(PW-1) would reveal that he admitted that from the very ransom amount paid by him, he received back a sum of Rs. 95,08,000/- from the Court, but he could not remember the date of receiving the amount. It is however an admitted position as emerging from record that no such order was ever sought for or procured from the Court. Mahesh Garg(PW-1) also admitted that his son Sachin Garg(PW-2) was never asked to identify the accused by the police in any identification parade.
It is unacceptable that the police could register the fir based on secret information without verifying about such incident
34. Jai Singh, SI(PW-27) deposed that he was on patrolling duty at the market of Sector-16, Panchkula when he received a secret information about a gang operating in Panchkula which was indulged in kidnapping children for ransom and if the amount was not paid, they would kill the victims and that such an incident had occurred in Kothi No. 81-A, Sector 17, Panchkula. The witness(PW-27) recorded a ruqa(Exhibit-PAA) dated 15th April, 2003 on the basis of this information and forwarded the same to the Police Station, Sector 5, Panchkula for registration of a case. Acting on the ruqa(Exhibit-PAA) forwarded by Jai Singh(PW-27), FIR(Exhibit-PAA/1) came to be registered for the offences punishable under Sections 387 and 507 IPC by Jai Raj, ASI(PW25). Indisputably, the ruqa(Exhibit-PAA) was merely based on a source information and it is totally unacceptable that the police officials could register the FIR merely on the basis of such source information without even verifying the fact as to whether any such incident had actually occurred. The very fact that this FIR(ExhibitPAA/1) was registered by referring to an incident which took place in Kothi No. 81-A, Sector 17, Panchkula without making any verification from the aggrieved person/s clearly shows that the Investigating Agency right from inception had started plotting that the case should proceed in a particular direction. This is a very suspicious circumstance that creates a grave doubt on the conduct of the Investigating Agency.
Entire case is nothing but a cock and bull story
36. It is important to note here that as per the version of Investigating Officer(PW-37), Shamlal Garg’s statement was recorded on 15th April, 2003 wherein he gave details of the two mobile numbers alleging that these were the mobile numbers of the kidnappers. The Investing Officer(PW-37) did not state that Shamlal Garg complained to him that his grandson Sachin Garg(PW-2) had been kidnapped or that ransom money had been paid to the kidnappers for securing his release. It is not in dispute that Shamlal Garg was not examined as a witness in the case and that Section 161 CrPC statements of Mahesh Garg(PW-1) and Sachin Garg(PW-2) were recorded as late as on 20th April, 2003. Thus, there is a glaring omission manifest from the evidence of the Investigating Officer(PW-37) which shows that even after the police officials had contacted the family members of the kidnapped boy on 15th April, 2003, no details were provided by them regarding the alleged incident of kidnapping of Sachin Garg(PW-2) on 2nd April, 2003 or that he was got released after paying ransom to the tune of Rs. 1 crore. This manifest lacuna in the prosecution story is another indication that the entire case is nothing but a cock and bull story.
Five days delay in recording s.161 crpc statement of victim
37. The decision of Investigating Officer(PW-37) in abruptly proceeding to the Bharti Airtel Company, Mohali for verifying the mobile numbers without even requiring Shamlal Garg to file a formal complaint regarding the alleged incident of kidnapping and without recording the statement of the kidnapped boy-Sachin Garg(PW-2), brings the conduct of the Investigating Officer(PW-37) under a cloud of doubt. Shamlal Garg’s statement should have put the Investigating Officer(PW-37) on a high degree of alert and his first reaction and lawful obligation would have been to immediately make enquiry from the allegedly kidnapped boy Sachin Garg(PW-2). However, the Investigating Officer(PW-37) delayed recording his statement for almost five days.
Currency notes were neither sealed at the time of recovery and no proceedings to prove the release of the currency notes
40. At this stage, it would be relevant to mention that the Investigating Officer (PW-37) claimed that the recovered currency notes had been handed over to the Superdar, but no order of the Court concerned directing/permitting handing over of the currency notes to anyone is available on record. Admittedly, the recovered currency notes were neither sealed at the time of recovery nor did the prosecution led any evidence to show that the currency notes allegedly seized from the accused were ever deposited in the malkhana of the police station. As a matter of fact, on going through the entire record and the evidence of the material prosecution witnesses viz. Mahesh Garg(PW-1) and the Investigating Officer(PW-37), we find that the prosecution has not given any evidence whatsoever to explain the fate of the currency notes allegedly recovered at the instance of the accused other than the bald version of Investigating Officer(PW-37) referred to above. No proceedings to prove the purported release of the currency notes on superdari were brought on record.
Trial court brushed aside the contention regarding the non-production of case property in the court
42. Since the prosecution alleged demand of ransom amount of around Rs. 1 crore and the recovery thereof from the accused without any doubt, the recovered currency notes were in the nature of case property/mudammal. The disposal of the case property could only have been done by taking recourse to the procedure contained under Sections 451, 452 and 457 CrPC as the case may be. The Investigation Officer(PW-37) had no authority to release the currency notes without an order of the Court and his action to the contrary tantamounts to grave misconduct. At Para 96 of its judgment, the trial Court causally brushed aside the contention of the defence counsel regarding the non-production of the case property (currency notes) in the Court observing that the recovered currency notes were released on superdari by the learned Magistrate. However, in the same para, the trial Court went on to note that the currency notes were never seen after the recovery and were not produced in the Court when the prosecution witnesses were examined. The fact remains that there is no indication in the judgment of the trial Court or for that matter of the High Court regarding the date of the order whereby, the currency notes were directed to be returned to Mahesh Garg(PW1). We further find that no order for final disposal of the currency notes was passed by the trial Court under Section 452 CrPC which is a mandatory requirement. The sheer indifference exhibited by the trial Court and the High Court to this extremely important aspect of the case is shocking, to say the least. Therefore, the entire process of recovery of the currency notes is clearly flawed, marked by procedural errors and grave lacuna which goes to the root of the matter. The trial Court and High Court fell in grave error by not pulling up the prosecution for flagrant disregard of legal procedures and failure to document key details which undermines the prosecution’s case.
Delay in lodging FIR was overlooked by the courts
45. The delay in lodging of the FIR was sought to be overlooked by both the Courts with a bald observation that the complainant party was under the fear of the threats given by the accused. Indisputably, Sachin Garg had returned home on 3rd April, 2003. Consequently, the complainant party could not be labouring under the fear of threats allegedly given by the accused after the victim had returned home.
Non-examination of victim on the date of incident affects the core of the prosecution
46. The Investigating Officer(PW-37) stated that Mahesh Garg (PW-1) was not present in the house on 15th April, 2003. However, it is not the case of the prosecution that even Sachin Garg(PW-2) was not present in the house when the Investigating Officer(PW37) visited Kothi No. 81-A and recorded the statement of Shamlal Garg. Hence, a further doubt is created on the truthfulness of the prosecution case on account of non-examination of Sachin Garg (PW-2) by the police, on the date on which the incident of kidnapping came into the knowledge of the police officials. Thus, the very core of the prosecution case is shaken to its foundation on account of the complainant party failing to inform the police about the incident, in spite of ample opportunities.
Scope of section 311 Cr.P.C and section 165 IEA
48. A conjoint reading of Section 311 CrPC and Section 165 of the Evidence Act makes it clear that the trial Court is under an obligation not to act as a mere spectator and should proactively participate in the trial proceedings, so as to ensure that neither any extraneous material is permitted to be brought on record nor any relevant fact is left out. It is the duty of the trial Court to ensure that all such evidence which is essential for the just decision of the case is brought on record irrespective of the fact that the party concerned omits to do so.
After discussing Pooja Pal v. Union of India and Others – (2016) 3 SCC 135 [ paras. 54 & 57] the Apex court has held as follows:
50. We are fully satisfied that the trial Court failed to perform its lawful obligation under Section 311 CrPC read with Section 165 of the Evidence Act inasmuch as, the most vital witness whose deposition was imperative for arriving at the truth of the matter i.e. Shamlal Garg was not produced by the prosecution and the trial Court took no steps whatsoever to summon him by exercising its powers under Section 311 CrPC and Section 165 of the Evidence Act. The fact that the FIR was not registered on the first disclosure of the incident made by Shamlal Garg to Surjit Singh, Investigating Officer(PW-37) and non-examination of the said witness at the trial is a fatal lacuna which persuades this Court to draw an adverse inference against the prosecution.
Call detail records was not proved as per section 65B of the Evidence Act
51. The trial Court as well as the High Court placed reliance upon the call detail records, concluding that the suspected mobile numbers were in use of Gaurav Maini(A1), Gaurav Bhalla(A2) and Sanjay @ Sanju(A4). However, the fact remains that no convincing evidence was led by the prosecution to connect the accused persons with the afore-mentioned mobile numbers. Furthermore, the prosecution admittedly, did not prove the call detail records in accordance with the mandate of Section 65B of the Evidence Act and hence, the call detail records cannot be read in evidence. Reference in this regard may be made to the judgment of this Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors – (2020) 3 SCC 216.
52. In wake of the discussion made hereinabove, we summarise our conclusions as below: –
i. That the entire prosecution story is totally concocted and does not inspire confidence.
ii. The FIR(Exhibit-PAA/1) could not have been registered on the basis of the secret information received by Jai Singh, SI(PW-27) because the said information did not disclose the commission of any cognizable offence. If at all, the FIR had to be registered, the same should have been done on the basis of the statement of Shamlal Garg recorded by the police officials on 15th April, 2003. However, no such steps were taken by the police officials, thereby, creating a grave doubt on the bona fides of the actions of the Investigating Agency.
iii. That the complainant party failed to offer logical explanation for failing to file an FIR even after the kidnapped boy-Sachin Garg(PW-2) had returned home. It can safely be presumed that once the kidnapped boy had returned home, the threat perception at the hands of the offenders, if any, would have been diluted/disappeared. The delay in taking legal action creates a grave doubt on the truthfulness of the entire prosecution case. iv. That the kidnapped boy-Sachin Garg(PW-2) knew accused Gaurav Bhalla(A2) from before and claims to have identified him at the time of the incident but in spite thereof, the name of Gaurav Bhalla(A2) was not disclosed to the police officials up to 20th April, 2003 which completely demolishes the veracity of the prosecution case.
The omission of the names of the accused persons in the special report forwarded by Investigating Officer(PW-37) to his superior officials is also vital and creates further doubt on the conduct of the Investigating Agency.
v. It is an admitted fact that the accused appellants other than Gaurav Bhalla(A2) were not known to the kidnapped boy-Sachin Garg(PW-2) and they were identified by him for the first time in the dock during deposition in the Court. This creates a doubt on the dock identification of these accused by Sachin Garg(PW-2) who also admitted in the cross-examination that the accused persons were shown to him and his father by the officers of the CIA. This admission lends further succour to the conclusion that the identification of the accused by the witness Sachin Garg(PW-2) is not free from doubt.
vi. That the prosecution case failed to led trustworthy evidence to establish the recovery of the currency notes at the instance of the accused because the disclosure statements were not proved as per law. Furthermore, the currency notes were handed back to Mahesh Garg (PW-1) without any order of the Court which is an act of gross misconduct on the part of the Investigating Officer(PW-37). Rather, this Court is compelled to observe that perhaps the entire exercise of recording disclosure statements and the recovery of the currency notes is totally sham and that is why, the currency notes were neither deposited in the malkhana of the police station/bank nor were the same produced in the Court thereby, creating strong doubt on the very factum of the recovery.
vii. That the prosecution failed to examine the most relevant witness, namely, Shamlal Garg which compels the Court to draw an adverse inference against the prosecution.
53. The High Court as well as the trial Court failed to advert to these important loopholes and shortcomings in the evidence available on record which are fatal and completely destroy the fabric of the prosecution case.
56. The appellants are acquitted of the charges. They are on bail and need not surrender. Their bail bonds are discharged.
Party
GAURAV MAINI … APPELLANT(S) VERSUS THE STATE OF HARYANA … RESPONDENT(S) – CRIMINAL APPEAL NO(S). 695 OF 2010 CRIMINAL APPEAL NO(S). 1724 OF 2010 CRIMINAL APPEAL NO(S). 584 OF 2013 – 2024 INSC 488 -July 09, 2024
