Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 1 of 37 * IN THE HIGH COURT OF DELHI % Judgment reserved on : 30.01.2009 Judgment delivered on: 09.04.2009 + CRL.A. No.274/2007 ASHOK KUMAR @GOVIND …Appellant Through : Mr. Abhinav Bajaj, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. No.275/2007 SUNIL KUMAR @KALU …Appellant Through : Mr. Tarun Sharma, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. No.397/2007 DHARAM SINGH …Appellant Through : Mr. Ajay Chaddha, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. 398/2007 JAIPAL SINGH …Appellant Through : Mr.Deepak Manmohan Bhalla, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. 410/2007 Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 2 of 37 MADAN …Appellant Through : Mr.Deepak Manmohan Bhalla, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CRL.A. 601/2007 JAI BHAGWAN …Appellant Through : Mr.Deepak Manmohan Bhalla, Advocate. versus STATE …Respondent Through :Ms. Richa Kapoor, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J. 1. Case of the prosecution is that the appellants and co-accused Jeet Kaur (who has been acquitted after the trial) hatched a conspiracy on 16.9.2001 to kidnap for ransom Master Rishabh and Master Shubham, twins aged 4 ½ years and in furtherance thereof on 17.9.2001 kidnapped Master Rishabh and Master Shubham as also abducted the driver Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 3 of 37 Sunil, employed by Shri Rajiv Aggarwal father of Master Rishabh and Master Shubham. That, in furtherance of the conspiracy, to eliminate they being identified, since appellant Ashok was also employed as a driver by Shri Rajiv Aggarwal and hence driver Sunil knew appellant Ashok, driver Sunil was murdered and body hidden in a cane field next to a canal in village Silarpur and as per the conspiracy ransom in sum of Rupees One Crore for each child was demanded. As per the prosecution, the conspirators gave effect to the conspiracy inasmuch as on 17.9.2001 kidnapped the two children and abducted the driver and thereafter murdered the driver as also demanded ransom but their mission failed because they were apprehended. 2. It is not in dispute that Master Rishabh and Master Shubham were students of Bal Bharti School, Sector-14, Rohini, studying in Nursery Section-A. As proved by their class teacher Ms.Anjana Baweja PW-1, who we note has not been cross-examined, Master Rishabh and Master Shubham sons of Shri Rajiv Aggarwal were dropped at the school in the morning by the driver of Rajiv Aggarwal and at 12.45 noon the same day the children were entrusted to driver Sunil after school hours were over. Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 4 of 37 3. Neither the two young boys nor their driver returned to their house. Their father Rajiv Aggarwal went to the local police station i.e. PS Prashant Vihar at around 6:00 PM on 17.9.2001 and informed HC Khushi Ram PW-5, the officer on duty, that his children as also the driver were missing. HC Khushi Ram noted the statement Ex.PW-5/B in the daily diary register vide DD No.13A and informed the police control room. He registered the FIR Ex.PW-5/A on the basis of the statement Ex.PW-5/B under Section 363 IPC. Soon thereafter Shri Rajiv Aggarwal received a telephone call demanding ransom of Rupees One Crore per child, which information he dutifully passed on to ASI Chander Pal Singh PW-29 to whom the case was entrusted for investigation after FIR Ex.PW-5/A was registered. ASI Chander Pal Singh recorded a supplementary statement of Shri Rajiv Aggarwal under Section 161 Cr.P.C. and added the offence under Section 364-A IPC for further investigation in the FIR. 4. The employees of Shri Rajiv Aggarwal were kept under observation and search teams were constituted to look for clues and in particular to search and find out the Maruti Zen bearing registration No.DL-8CV-5369, the car in which driver Sunil had picked up the children from the school. Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 5 of 37 5. Information was received on 18.9.2001 that the car was seen on the service street at Wazirpur Industrial Area. ASI Chander Pal Singh PW-29 accompanied by Const. Sohan Lal PW-15 immediately left for the spot and seized the car vide seizure memo Ex.PW-15/B. Crime team was summoned. Shri P.K.Gautam PW-18, Senior Scientific Officer, CFSL accompanied by Shri A.D. Sahay, Senior Scientific Assistant came to the spot and lifted chance finger prints from the car. 6. At the laboratory Shri S.K. Chadha PW-20, Senior Scientific Officer was able to successfully develop ten chance prints of the finger prints which were lifted from the car. 7. Since the employees of Rajiv Aggarwal were kept under surveillance, probably for the reason the police officers thought that possible leads could emerge from suspicious conduct of some employee, conduct of appellant Ashok, also employed as a driver by Rajiv Aggarwal, was found to be suspicious as it was noticed that he was making unnecessary visits to the house, probably to familiarize himself as to what Rajiv Aggarwal and the police were doing. SI Ramesh PW-30, joined the investigation of the case on 20.9.2001. He, along with HC Ramesh, Const. Dayanand and Const. Amit went to House No.269, J.J. Colony, Shakarpuri, where Ashok used to reside. He was interrogated and during interrogation broke Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 6 of 37 down and vide disclosure statement Ex.PW-23/B recorded by SI Ramesh PW-30 and witnessed by Const. Dayanand PW-23, disclosed that with the desire of making money all accused persons had discussed on different dates as to how they would give effect to a plan to kidnap the children of Rajiv Aggarwal and that final shape to the conspiracy was given in the house of Jaipal on 16.9.2001 when all accused were present and that as per the plan the children were kidnapped on 17.9.2001 and removed to village Balwapur and driver Sunil was murdered near Balwapur by Jai Bhagwan, Madan, Dharam and Jaipal. Appellant Ashok was arrested at 2:15 PM on 20.9.2001. 9. Appellant Ashok thereafter led SI Ramesh Singh and Const. Dayanand as also Const. Amit to House No.B-291, Jahangir Puri, Delhi and pointed out the same informing the police officers that this was the residence of accused Jaipal. At around 2:15 PM when the police team, accompanied by Ashok reached the house and it was pointed out as being the residence of Jaipal, on entry into the house, the police team found not only Jaipal but even Sunil present in the house. Both were arrested at 2:15 PM on 20.9.2001. 10. Jaipal and Sunil were interrogated. Jaipal made a disclosure statement Ex.PW-23/E and Sunil made a disclosure statement Ex.PW-23/F, both of which were recorded by SI Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 7 of 37 Ramesh PW-30 and were witnessed by Const. Dayanand PW- 23. 11. In his disclosure statement Jaipal disclosed the facts already told by Ashok Kumar to the police pertaining to the conspiracy. Additionally, he gave details as to how the children were kidnapped. In his disclosure statement he disclosed that the children were kept in village Balwapur and he could lead the police to the said place. He disclosed that driver Sunil was strangulated with a rope and his body was dumped. 12. In his disclosure statement Sunil disclosed same facts as were already known to the police and as disclosed by Ashok pertaining to the conspiracy. He additionally stated that after the children were kidnapped he was informed by Jai Bhagwan and Jaipal that the body of driver Sunil has been dumped in a sugarcane field in village Balwapur, U.P. 13. It was but logical that the investigating officer would form a raiding team and leave for village Balwapur, for this was the village in which, as per the disclosure statements of Ashok, Jaipal and Sunil, the two children were kept in confinement and also the dead body of the deceased driver Sunil was dumped. Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 8 of 37 14. But before the police party could leave for village Balwapur an information was received that the two children would be brought to Delhi by a conspirator who would disembark from a public transport bus at Anand Vihar Inter State bus terminal. 15. SI Chander Pal Singh PW-29, Inspector Ravinder, SI Ramesh Singh PW-30 and Inspector Subhash Chander formed the raiding party and took along with them Rajiv Aggarwal to facilitate the children being identified, if the secret information received was correct. 16. Appellant Madan was seen with the two children disembarking from a bus. Rajiv Aggarwal recognized his children and pointed them out to the raiding party. Madan was apprehended at 7:00 PM as recorded in the arrest memo. The children were recovered and handed over to the father vide memo Ex.PW-12/C. 17. Madan was interrogated and made a disclosure statement Ex.PW-29/B which was recorded by SI Chander Pal Singh PW-29 and was witnessed by SI Ramesh Singh PW-30. In his statement, Madan disclosed the facts pertaining to the conspiracy as were already known to the police and as disclosed by Ashok. The additional information given was that the dead body of driver Sunil could be got recovered by him Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 9 of 37 from the spot where the same was dumped. Further additional information given by him was that after being kidnapped the children were confined in the house of Dharam Singh in village Balwapur and that he could take the police to the said house. 18. The police team consisting of SI Chander Pal Singh, Inspector Ravinder Singh, SI Subhash Tandon and SI Ramesh Singh left for village Balwapur and reported first at the police post Brij Ghat under jurisdiction of PS Garh Mukteshwar informing the local police the purpose of their visit i.e. to apprehend accused Dharam Singh as also be led to the place where the dead body of driver Sunil was stated to be dumped so that the dead body could be recovered. SI Shri Ram PW-26 the chowki incharge of the police post at Brij Ghat recorded the visit by the police officers of Delhi in the daily diary and accompanied the police team. 19. Since appellant Madan and Jaipal, in their disclosure statements had stated that they could lead the police to the house where the children were confined i.e. the house of Dharam Singh. Both led the police to a house in village Balwapur and pointed out the same to be the house of Dharam Singh who was found present in the house and was arrested at 3:00 AM on 21.9.2001 i.e. the intervening night of 20th and 21st September 2001. He was interrogated by SI Chander Pal Singh Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 10 of 37 PW-29 who recorded his disclosure statement Ex.PW-29/A in which he disclosed the facts already known to the police pertaining to the conspiracy and that he knew the place where the dead body of Sunil was thrown. He disclosed that the two children were kept in his house and Madan had taken them away. That while in his house he had changed the school dress of the children. That the school dress, the school bag with the books, lunch boxes and belts of the children were hidden by him and that he can get recovered the same. Pursuant thereto Dharam Singh got recovered two school bags containing diaries of Bal Bharti Public School, books and lunch box. He also got recovered two caps, two shirts, two shorts and two belts of the children which were seized vide seizure memo Ex.PW-26/A. 20. Thereafter, the police personnel from Delhi Police accompanied by SI Shri Ram PW-26, along with Madan, Jaipal and Dharam Singh proceeded to a place between village Balwapur and village Silarpur as they were led to the said place by Madan, Jaipal and Dharam Singh. 21. Since the place where Madan, Jaipal and Dharam Singh led the police to, fell within the jurisdiction of PS Bahadur Garh (UP), SI Shri Ram PW-26 informed the duty officer of PS Bahadur Garh about the police from Delhi going to Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 11 of 37 the place in question. Said information was recorded at PS Bahadur Garh vide DD No.6, Ex.PW-27/A at 5:40 AM on 21.9.2001. On receipt of said information, SI Charan Singh PW-27 of PS Bahadur Garh also joined the police team. 22. It is apparent that dawn was breaking and it was early morning time on 21.9.2001. Madan, Jaipal and Dharam Singh led the police team to a sugarcane field in village Silarpur and from near a canal, at about a distance of 20 yards from the canal, hidden within sugarcane, pointed out a dead body stating that this was the body of driver Sunil. The pointing out by Dharam Singh stands recorded in the pointing out memo Ex.PW-26/C. The pointing out by Madan stands recorded in the pointing out memo Ex.PW-26/D. The pointing out by Jaipal stands recorded in the pointing out memo Ex.PW- 26/E. 23. The body was seized vide seizure memo Ex.PW-7/A drawn up by SI Charan Singh PW-27 of PS Bahadur Garh. 24. Public persons were associated when the dead body was recovered on the pointing out of Dharam Singh, Madan and Jaipal. They are Pappi PW-3, Mangru Singh PW-4, Ramesh Chand PW-6, Manbir Singh PW-7 and Hari Singh PW-8. 25. Since the dead body was recovered within jurisdiction of PS Bahadur Garh, inquest proceedings were Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 12 of 37 conducted by SI Charan Singh of PS Bahadur Garh. The body was sent to the mortuary of Mukund Lal Municipal Hospital where Dr.Jitender Kumar PW-10 conducted the post-mortem at 4:00 PM on 21.9.2001 and prepared the post-mortem report Ex.PW-10/A recording therein that the body was 3 – 4 days old and that the cause of death was asphyxia due to strangulation. Ligature marks 33 cm long and ½ cm wide all around the neck above adam’s apple was noted. It was noted that the tongue was protruding between the teeth. The skin was peeled off at places and that the scalp hair was loosened. A vest, underwear, pant, shirt and belt removed from the body as also a cord piece around the neck of the body was handed over to SI Charan Singh PW-27. 26. At the mortuary, before commencement of the post-mortem, Aabha Devi PW-11 and Sudhir Poddar PW-2, the wife and the brother respectively of deceased Sunil identified the dead body as that of Sunil. 27. After the post-mortem, the body was handed over to Aabha Devi and Sudhir Poddar. The inquest papers and the vest, underwear, pant, shirt and belt removed from the body of the deceased as also a cord piece around the neck of the body were sent by SI Charan Singh to the SHO PS Prashant Vihar under cover of his forwarding letter Ex.PW-27/E. Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 13 of 37 28. To complete the narrative of the facts as they unfolded and as claimed by the police, Jeet Kaur was apprehended on 21.9.2001 at 10:00 AM. She is the wife of appellant Jaipal. 29. On 22.9.2001, without seeking any permission from the Court and there being no identification of Jaipal, Dharam Singh and Madan, who were in detention, and as per the requirement of The Identification of Prisoners Act 1920, Const. Ravinder PW-16 took sample finger print impressions of Jaipal, Dharam Singh and Madan and handed over the same to Inspector Ravinder Kumar who in turn forwarded the same on 26.9.2001 to the Forensic Science Laboratory where S.K.Chadha PW-20, Senior Scientific Officer of the Laboratory, after comparison of the sample finger prints, gave an opinion Ex.PW-20/D to the effect that chance finger prints Q-10 was identical with the specimen left thumb impression of Jaipal marked LTS1. 30. Appellant Jai Bhagwan was arrested on 3.7.2002. He made a disclosure statement Ex.PW-28/C recorded by Inspector Sita Ram Meena PW-28 in which he disclosed the facts pertaining to the conspiracy as already disclosed to the police by Ashok as also the facts already known to the police pertaining to the acts committed to give effect to the Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 14 of 37 conspiracy. His sample finger print impressions were obtained, without any order by any Court and without the process of identification being done as required by the Identification of Prisoners Act 1920 and the same were sent to PW-20 who vide report Ex.PW-20/K gave an opinion that the chance print marked Q-6 was identical with the specimen left hand thumb impression of Jai Bhagwan marked LTS15. 31. Needless to state, save and except admissible by virtue of Section 27 of the Evidence Act, the disclosure statements made by the accused, being admissions of guilt, are inadmissible in evidence. It is for this reason, while referring to the disclosure statements of the accused, we have summarized the facts disclosed therein which are confessional of the guilt and have highlighted such facts disclosed which have relevance under Section 27 of the Evidence Act. 32. The accused were charged for the offence punishable under Section 120-B IPC pertaining to the conspiracy to kidnap for ransom Master Rishab and Master Shubham and for the conspiracy to murder Sunil. They were also charged for the offence of kidnapping for ransom as also for the charge of murder. 33. At the trial, the various police officers associated with the investigation and the ones who had transmitted Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 15 of 37 various exhibits to the Forensic Laboratory and had received back the same, as also the police officers of PS Garh Mukteshwar and PS Bahadur Garh were examined as the witnesses of the prosecution. They proved the facts noted hereinabove pertaining to the arrest of the accused; the disclosure statements made by the accused; the recovery of Master Rishab and Master Shubham from accused Madan; the recovery of the clothes and the school bag of the children from the house of Dharam Singh and the recovery of a dead body identified that of deceased Sunil on the joint pointing out of appellants Madan, Jaipal and Dharam Singh. The forensic experts who had lifted the chanced finger prints; the one who had developed the same and had compared the same with the specimen finger prints of Jaipal, Dharam Singh, Madan and Jai Bhagwan were examined, who proved the lifting of the chance finger prints and the report Ex.PW-20/D and Ex.PW-20/K. 34. Ms. Anjana Baweja proved that the two children had attended school on 17.9.2001 and had left with the driver Sunil at 12:45 noon. Pappi PW-3, Mangru Singh PW-4, Ramesh Chand PW-6, Manbir Singh PW-7 and Hari Singh PW-8 deposed that on being called by SI Charan Singh PW-27 they had reached a sugarcane field in village Silarpur and had witnessed the recovery of a dead body of a male person. Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 16 of 37 35. Since an argument was raised during hearing of the appeal to the truthfulness of the recovery of a dead body as alleged by the prosecution, we may note that in cross examination, Pappi PW-3 stated that Delhi Police personnel were not present when the body was seized. We further note that SI Shri Ram PW-26 of PS Garh Mukteshwar also stated that the Delhi Police had left the place where the dead body was recovered at around 6:00 AM. 36. Dr. Jitender Kumar PW-10 who had conducted the post-mortem of the deceased proved the post-mortem report. Abha Devi PW-11, the wife of the deceased and Sudhir Poddar PW-2, the brother of the deceased proved that they had identified the dead body as that of Sunil. Relevant would it be to note that on being cross examined, Abha Devi deposed that the clothes on the person of her husband were the same which he was wearing when he left the house. 37. Vide impugned judgment and order dated 28.2.2007, holding that there was no evidence against Jit Kaur save and except the statements of the co-accused implicating her, which were inadmissible in evidence, learned Trial Judge has acquitted Jit Kaur. 38. All other accused i.e. the appellants have been convicted for the offences of which they were charged for. Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 17 of 37 39. Noting that no recoveries had been made pursuant to the disclosure statement of appellant Ashok and Sunil and merely because the names of the other accused persons and the contours of the conspiracy were disclosed in said statements and that the facts pertaining to the conspiracy stood established by the fact that the crime was given effect to, it has been held that the disclosure statements of Ashok and Sunil are inadmissible in evidence with reference to Sections 25 to 27 of the Evidence Act. 40. But, in para 27 of the impugned decision, the learned Trial Judge has held as under:- “27. I have perused the disclosure statement of the accused Ashok and that of accused Sunil Ex.PW-23/B and Ex.PW-23/E in detail. The information given to the accused Ashok by the accused Sunil and the information given to the accused Sunil by the accused Jaipal as mentioned in their respective disclosure statements can very well be admissible in evidence u/s 8 and u/s 10 of Indian Evidence Act. It is only upon the disclosure statement of the accused Ashok that led to the arrest of the accused Sunil and further the disclosure statement of the accused Sunil could make the police successful for the arrest of the accused Jaipal which ultimately led to the recovery of the incriminating material and the dead body. Admittedly, after the hatching of conspiracy, no overt or covert act was done by the accused Ashok and Sunil but they had the knowledge and participation of the conspiracy, as reflected from the statement of other co-accused. They had also knowledge about the indulgence of the other accused with whom they had hatched conspiracy in doing the illegal act, and hence, their case clearly falls within the ambit of Section 120-B IPC under the Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 18 of 37 guidelines laid down by the Hon’ble Supreme Court of India as herein after discussed.” 41. In the preceding paragraphs, being paras 24 to 26, the learned Trial Judge has noted Section 3, Section 4, Section 5, Section 8, Section 10, Section 27 and Section 114 of the Evidence Act and has opined that conduct of an accused is relevant by virtue of Section 8 of the Evidence Act. The learned Trial Judge has also held that in a charge pertaining to conspiracy, anything said or done by a conspirator is admissible evidence. 42. Pertaining to accused Jaipal, Madan and Dharam the learned Trial Judge has held that the dead body of Sunil was recovered by the police pursuant to their disclosure statements and upon the three leading the police to the place which was pointed out by the three as recorded in the pointing out memos Ex.PW-26/C, Ex.PW-26/D and Ex.PW-26/E and this was incriminating evidence against the three showing their involvement in the abduction and murder of Sunil. Since the testimony of PW-1 establish that the minor children left the school with their driver Sunil, the