IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) Crl. A. No. 40-DB of 2006 DATE OF DECISION : 10.08.2011 Resham Lal .... APPELLANT Versus State of Punjab ..... RESPONDENT (2) Crl. A. No. 105-DB of 2006 DATE OF DECISION : 10.08.2011 Devinder Kumar alias Shaipi .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE ARVIND KUMAR Present: Mr. Ashok Singla & Mr. Ravish Bansal, Advocates, for the appellant (in Crl. A. 40-DB of 2006) Mr. Salil Bali, Advocate, for the appellant (in Crl. A. No. 105-DB of 2006) Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeals No. 40-DB and 105-DB of 2006, filed by Resham Lal and Devinder Kumar alias Shaipi, Crl. A. No. 40-DB of 2006 -2- respectively, against the judgment and order dated 3.12.2005, passed by the court of Additional Sessions Judge, Faridkot, whereby accused Devinder Kumar alias Shaipi has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of ` 5,000/-, in default of payment of fine to further undergo rigorous imprisonment for three months under Section 364 IPC; to undergo rigorous imprisonment for seven years and to pay a fine of ` 3,000/-, in default of payment of fine to further undergo rigorous imprisonment for two months under Section 387 IPC; to undergo rigorous imprisonment for life and to pay a fine of ` 10,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 302 IPC; and to undergo rigorous imprisonment for five years and to pay a fine of ` 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for one month under Section 201 IPC, whereas accused Resham Lal has been convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of ` 3,000/-, in default of payment of fine to further undergo rigorous imprisonment for two months under Section 364/120-B IPC; to undergo rigorous imprisonment for three years and to pay a fine of ` 3,000/-, in default of payment of fine to further undergo rigorous imprisonment for two months under Section 387/120-B IPC; to undergo rigorous imprisonment for life and to pay a fine of ` 5,000/-, in default of payment of fine to further undergo rigorous imprisonment for three months under Section 302/120-B IPC; and to undergo rigorous imprisonment for two years and to pay a fine Crl. A. No. 40-DB of 2006 -3- of ` 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for one month under Section 201/120-B IPC. All the sentences awarded to both the accused have been ordered to run concurrently. Prosecution version 2. In the present case, four accused, namely Devinder Kumar alias Shaipi, Resham Lal, Sonu Sharma and Gunjan Kumar, were tried for the offences under Sections 364, 387, 302, 201 read with Section 34 IPC and Section 120-B IPC, for kidnapping Mandeep Kumar alias Deepu (about 7 ½ years old minor child) son of Balbir Kumar (PW.1), demanding ransom, committing his murder and destroying his body. Vide the impugned judgment, accused Devinder Kumar alias Shaipi and Resham Lal (appellants herein) have been convicted for the aforesaid offences, whereas accused Sonu Sharma and Gunjan Kumar have been acquitted of the charges, framed against them. 3. As per the prosecution version, which is primarily based upon the statement of Balbir Kumar (PW.1), father of deceased Mandeep Kumar alias Deepu, and the disclosure statements (Ex.PB and Ex.PC) made separately by both the appellants, on 28.3.2004 in the evening, Mandeep Kumar alias Deepu was found missing from the house of his maternal grand-mother, where he along with his mother had gone to attend a marriage function. When complainant Balbir Kumar came to his house at 10.00 PM, after attending his duty, he enquired from his wife about his son, who in Crl. A. No. 40-DB of 2006 -4- turn replied that he might be staying in the house of his maternal grand- mother. On the next day i.e. 29.3.2004, in the morning, the complainant went to the house of his in-laws and enquired about his son Mandeep Kumar alias Deepu, upon which his mother-in-law and father-in-law told him that Deepu was not with them during the night. Thereafter, he searched for his minor son in his relations, but could not find him any where. Thereupon, the matter was reported to the police on 29.3.2004 (though no missing report was lodged and produced by the prosecution). 4. It is further the case of the prosecution that on 3.4.2004, a telephone call was received by complainant Balbir Kumar from a male person, who was speaking on the guidance of a female person, to the effect that if he wanted his child, he has to pay an amount of ` 3 lacs, but on asking as to where and how the money was to be paid, the telephone was disconnected. Thereafter, the complainant got installed ID on the landline telephone No. 229728 at his in-laws house. Then, again on 5.4.2004, another telephone call of the same person from Mobile No. 98142-00580 was received on telephone No. 229728, where the caller was saying that the child was ill and the complainant was asked to pay an amount of ` 1 lac. It is the case of the prosecution that on that day also, the person calling on telephone did not give his address and disconnected the telephone, by saying that he will inform about the same on the telephone. Then the complainant waited for some days and ultimately, on 9.4.2004, he lodged the report to the police, on the basis of which the FIR (Ex.PA) under Crl. A. No. 40-DB of 2006 -5- Sections 363 and 365 IPC was registered against unknown persons. 5. After more than four months of the registration of the FIR, on 12.8.2004, the police recorded the additional statement of complainant Balbir Kumar, copy of which is available on record as Mark A. In the said statement, he further disclosed that after registration of the case, from inquiries made by him, it was found that on 28.3.2004, his son had gone to the shop of his neighbour Resham Lal (appellant), where appellant Devinder Kumar alias Shaipi and accused Gunjan were working. All these three persons, in consultation with each other, kidnapped his minor son and made a telephone call through accused Sonu Sharma demanding ransom of ` 3 lacs. He suspected that these persons had kept concealed his son and if they are interrogated, his son can be got recovered. 6. On 18.10.2004 at about 8.00 AM, i.e. after more than two months of the recording of the aforesaid additional statement of complainant, appellants Resham Lal and Devinder Kumar alias Shaipi suffered extra judicial confession before Charanjit Singh alias Soni (PW.2), a taxi driver. He produced them before SI Tara Singh (PW.7), who arrested them and recorded their disclosure statements (Ex.PB and Ex.PC), wherein they stated that they along with accused Gunjan hatched a conspiracy and on 28.3.2004, appellant Devinder Kumar alias Shaipi and accused Gunjan kidnapped minor child Mandeep Kumar alias Deepu and took him on the scooter of appellant Resham Lal, which was being driven by Devinder Kumar alias Shaipi. When they reached the rivers in Faridkot, the minor Crl. A. No. 40-DB of 2006 -6- child started crying and appellant Devinder Kumar asked accused Gunjan to close the mouth of the child. Thereafter, they stopped the scooter and after pressing the throat of the child, they threw him in the river and came back to the shop of appellant Resham Lal and narrated the entire incident to him. The appellants further stated that after about 6/7 days of the said incident, they went to the house of accused Sonu Sharma and after putting their sim card in her mobile set, they got made a telephone call from her mobile phone to telephone No. 229728 and demanded a ransom of ` 3 lacs. 7. According to the prosecution case, accused Sonu Sharma was also arrested on the same day, i.e. on 18.10.2004. During interrogation, her disclosure statement (Ex.PD) was also recorded and in pursuance of the same, her mobile set (Ex.MO1) was got recovered by her from an iron trunk in her house, which was taken into possession vide recovery memo (Ex.PE). On the same day, appellant Resham Lal produced scooter No. PCU-1874 along with its Registration Certificate in the name of one Parveen Kumar, which was taken into possession vide separate recovery memo (Ex.PF). 8. On 25.10.2004, M.C. Gursewak Singh produced accused Gunjan Kumar before SI Nek Singh (PW.6), who arrested him. Investigation 9. During investigation, SI Nachhatar Singh (PW.3) got traced calls made from the Mobile set of accused Sonu Sharma. The calls, as mentioned in the call details (Ex.PG/1), were made from mobile phone No. 98142-00580 from 25.3.2004 to 9.4.2004. According to the prosecution, Crl. A. No. 40-DB of 2006 -7- these calls were made by accused Sonu Sharma on the landline telephone No. 229728, installed in the house of the in-laws of the complainant. 10. In this case, undisputedly, dead body of the child was not recovered at all. The prosecution is proceeding on the presumption that after kidnapping the child, when appellant Devinder Kumar alias Shaipi and accused Gunjan were taking the child away on the scooter, the child started crying, and appellant Devinder Kumar alias Shaipi asked accused Gunjan to close the mouth of the child. Thereafter, they stopped the scooter and after pressing the throat of the child, they threw him in the river. The Investigating Officer did not make any effort to get the place of occurrence identified by the accused on the basis of their disclosure statements. 11. After completion of investigation, the police filed challan against all the four accused and charges under Sections 364, 387, 302, 201 read with Section 34 IPC and Section 120-B IPC were framed, to which they did not plead guilty and claimed trial. Prosecution evidence 12. In support of its case, the prosecution examined seven witnesses. 13. PW.1 Balbir Kumar (complainant), father of deceased Mandeep Kumar alias Deepu, deposed regarding the missing of his son on 28.3.2004, lodging of report by him, and receiving of telephone calls in the house of his in-laws regarding the demand of ransom of ` 3 lacs. 14. PW.2 Charanjit Singh alias Soni has stated that on 18.10.2004, Crl. A. No. 40-DB of 2006 -8- both the appellants made extra judicial confession before him and he produced them before the police. 15. PW.3 SI Nachhatar Singh, who got traced calls made from the Mobile set of accused Sonu Sharma, has stated that he took into possession the call details made from mobile phone No. 98142-00580 from 25.3.2004 to 9.4.2004, issued by Spice Communications Pvt. Ltd. 16. PW.4 ASI Sukhdev Singh, who is the attesting witness of the disclosure statements (Ex. PB, Ex.PC and Ex.PD), made by appellants Resham Lal, Devinder Kumar alias Shaipi and accused Sonu Sharma, and the recovery memos (Ex.PE and Ex.PF), vide which the mobile set of accused Sonu Sharma, and the scooter along with its RC (Ex.P1), were taken into possession, has proved these disclosure statements and the recovery memos. 17. PW.5 Subodh Singh, Assistant Manager, Co-op. Regulatory Affairs, Spice Telecom India Ltd., has proved the call details (Ex.PG/1) made from mobile No. 98142-00580 during the period from 25.3.2004 to 9.4.2004. 18. PW.6 SI Nek Singh has stated regarding the production of accused Gunjan before him by M.C. Gursewak Singh and arrest of said accused by him on 25.10.2004. 19. PW.7 SI Tara Singh has stated regarding the production of appellants Resham Lal and Devinder Kumar alias Shaipi as well as accused Sonu Sharma before him by Charanjit Singh on 18.10.2004 and recording of Crl. A. No. 40-DB of 2006 -9- their disclosure statements (Ex.PB, Ex.PC and Ex.PD). He has also deposed regarding the other investigation conducted by him. Defence of the accused 20. In their statements recorded under Section 313 Cr.P.C., all the accused denied the incriminating evidence appearing against them and pleaded their innocence. However, in defence, they did not lead any evidence. Appellants Devinder Kumar alias Shaipi and Resham Lal pleaded that they have been falsely implicated in this case, because of some misguided suspicion. Accused Gunjan Kumar took the plea that he was produced before the police on 25.10.2004 by Krishan alias Krishan Nandan, and telegrams regarding his false implication were also given to the higher authorities. Accused Sonu Sharma pleaded that she has been falsely implicated in this case, because she had filed complaint against the police officials before the Punjab State Human Rights Commission, Chandigarh, regarding harassment and illegal detention of her and her younger sister Rajni. Defence evidence 21. In support of his defence version, accused Gunjan examined DW.1 Madan Lal, SDO Telephones, who has proved the telegrams (Ex.DA and Ex.DB), made by Kishan alias Krishan Nandan. Trial court findings 22. While relying upon the extra judicial confession made by appellant Devinder Kumar alias Shaipi before PW.2 Charanjit Singh alias Crl. A. No. 40-DB of 2006 -10- Soni, which has been corroborated by the statement of PW.2 Charanjit Singh alias Soni and the call details (Ex.PG/1), the trial court convicted and sentenced appellant Devinder Kumar alias Shaipi, as indicated in the first para of this judgment. Further, while relying upon the extra judicial confession made by appellant Resham Lal before the same witness and taking into consideration the fact that he had never kidnapped the minor child and he was also not present, when the minor child was allegedly killed and thrown in the river, the trial court held that the prosecution has proved the criminal conspiracy between appellants Devinder Kumar alias Shaipi, Resham Lal and accused Gunjan for kidnapping the minor child for ransom, and therefore, appellant Resham Lal has been convicted and sentenced, as mentioned above, with the aid of Section 120-B IPC. Since no confession was made by accused Gunjan and he was only named by both the appellants, therefore, he has been acquitted of the charges, framed against him. Accused Sonu Sharma has also been acquitted of the charges, as according to the trial court the prosecution has failed to prove that the remaining three accused had got some telephone calls made from her mobile set by using their own sim card in her mobile set. It has been further held that the person, who had attended the telephone calls, was not examined to prove that those calls were made by accused Sonu Sharma. It has been held that the mobile set, recovered from accused Sonu Sharma, was different than the set, from which two calls were made to the complainant. According to the call details (Ex.PG/1), the phone calls were received from the mobile Crl. A. No. 40-DB of 2006 -11- set, which was different than the set recovered in this case. Thus, it has been held that the prosecution has failed to prove its case against accused Sonu Sharma. 23. Against the acquittal of accused Gunjan and Sonu Sharma, no appeal has been filed either by the State or by the complainant. Only appellants Resham Lal and Devinder Kumar alias Shaipi have filed these two appeals, which are being disposed of together by this judgment. Arguments of learned counsel for the appellants 24. Learned counsels for both the appellants argued that in the present case, the prosecution has miserably failed to establish the charges against the appellants beyond reasonable doubt. The trial court has committed grave illegality while convicting both the appellants on the basis of mere suspicion, without there being any legal evidence against them. In this case, both the appellants have been convicted only on the basis of the evidence of extra judicial confession, alleged to have been made by them before PW.2 Charanjit Singh alias Soni, at a belated stage of investigation. The testimony of PW.2 Charanjit Singh alias Soni is not reliable and trust- worthy. Even the evidence of extra judicial confession has not been corroborated by any other evidence. According to the learned counsel, the trial court, without properly appreciating the evidence, has erred in holding that the extra judicial confession has been corroborated by the phone call details (Ex.PG/1). While referring to the phone call details (Ex.PG/1) as well as the statements of PW.3 SI Nachhatar Singh and PW.5 Subodh Crl. A. No. 40-DB of 2006 -12- Singh, Assistant Manager, Co-op. Rgulatory Affairs, Spice Telecom India Ltd., learned counsel argued that even the call details (Ex.PG/1) do not establish that these calls were made from the mobile set of Sonu Sharma (acquitted accused), which was got recovered by her in pursuance of her disclosure statement. According to the recovery memo (Ex.PE), vide which the mobile set was taken into possession, the IMEI number of the mobile set of Sonu Sharma is different to the IMEI number of the mobile set given in the call details (Ex.PG/1). Learned counsel further argued that even it has not been proved that Mobile No. 98142-00580 was issued in the name of either of the appellants. No investigation in this regard was conducted. Learned counsel further argued that appellant Resham Lal has been convicted for the alleged offences with the aid of Section 120-B IPC, though he was neither present at the time of the alleged kidnapping nor at the time of the commission of the alleged murder of the child. Learned counsel argued that the other accused, namely Gunjan Kumar, who was also member of the alleged conspiracy, has been acquitted by the trial court, by giving him benefit of doubt on the ground that he did not make any extra judicial confession in the case. According to the learned counsel, in the instant case, the prosecution has failed to establish the ingredients of the conspiracy, which could have proved that there was a conspiracy between both the appellants. Learned counsel, appearing on behalf of appellant Devinder Kumar alias Shaipi, argued that in the present case, the investigating agency did not make any effort to get the place of occurrence Crl. A. No. 40-DB of 2006 -13- identified from appellant Devinder Kumar alias Shaipi, on the basis of his disclosure statement made to the police. No site plan was prepared and on the basis of his disclosure statement, nothing was recovered from him. Therefore, the said piece of evidence, which has been proved by PW.4 ASI Sukhdev Singh, also does not corroborate the alleged extra judicial confession made by appellant Devinder Kumar alias Shaipi. Learned counsel for both the appellants further argued that in this case, dead body of the deceased was not recovered at all. According to them, as per the prosecution version, the minor boy was kidnapped from a busy place, i.e. from the shop of appellant Resham Lal, but the prosecution did not make any effort to examine any witness from the vicinity to prove that the child was seen in the company of appellant Devinder Kumar alias Shaipi and Gunjan Kumar (acquitted accused), who allegedly kidnapped the child from the said shop. Learned counsel argued that except the evidence of extra judicial confession and the so called call details (Ex.PG/1), there is no other evidence against the appellants, and these pieces of circumstantial evidence are highly unreliable an untrustworthy. Therefore, according to the learned counsel, conviction of both the appellants is liable to be set aside. 25. On the other hand, learned Additional Advocate General, Punjab, argued that the trial court has rightly convicted and sentenced both the appellants on the basis of extra judicial confession, made by them, supported by the phone call details (Ex.PG/1), the recovery of scooter from appellant Resham Lal, recovery of the mobile set from accused Sonu Crl. A. No. 40-DB of 2006 -14- Sharma and the other evidence, led by the prosecution. 26. We have considered the submissions made by learned counsel for the appellants and the respondent-State, and carefully gone through the record of the case. 27. The case of the prosecution is that on 28.3.2004, Mandeep Kumar alias Deepu, minor son of complainant Balbir Kumar (PW.1), was kidnapped by appellant Devinder Kumar alias Shaipi and his co-accused Gunjan Kumar, from the shop of appellant Resham Lal, under a conspiracy hatched by them, and thereafter, the minor boy was taken by appellant Devinder Kumar alias Shaipi and accused Gunjan Kumar on a scooter, which was being driven by appellant Devinder Kumar alias Shaipi. In the way, near the rivers in Faridkot, when the minor child started crying, appellant Devinder Kumar alias Shaipi asked his co-accused Gunjan Kumar to close the mouth of the child. Thereafter, they stopped the scooter and after pressing the throat of the child, they threw him in the river and came back to the shop of appellant Resham Lal. It is the further case of the prosecution that after about 6/7 days of the occurrence, both the appellants and their co-accused Gunjan Kumar demanded ransom of ` 3 lacs from the complainant by making phone call from the mobile set of their co-accused Sonu Sharma. Again after 2 days, another telephone call was made to the complainant for ransom. Both the calls were made from mobile phone No. 98142-00580 to the landline telephone No. 229728, which was installed in the house of the in-laws of the complainant. Crl. A. No. 40-DB of 2006 -15- 28. Admittedly, in this case, the dead body of minor Mandeep Kumar alias Deepu has not been recovered. The prosecution is assuming that the minor boy was killed and his dead body was thrown in the river. In order to prove the aforesaid allegations, the prosecution is relying upon the circumstantial evidence, as no direct evidence of the alleged offence is available. The first circumstantial evidence, which is being strongly relied upon by the prosecution, is the extra judicial confession made by both the appellants before PW.2 Charanjit Singh alias Soni, a taxi driver, and the second circumstantial evidence is the phone call details (Ex.PG/1), which according to the prosecution version as well as the trial court findings corroborates the extra judicial confession, made by the appellants. The third piece of circumstantial evidence, being relied upon by the prosecution, is the recovery of scooter from appellant Resham Lal, and the disclosure statements (Ex.PB and Ex.PC) made by both the appellants. The prosecution has also relied upon the recovery of mobile set bearing IMEI No. 350039985284599 from accused Sonu Sharma and the testimony of PW.1 Balbir Kumar (complainant), who stated that the telephone call in the voice of accused Sonu Sharma, demanding the ransom was received. 29. In the present case, though it is alleged that the minor boy was kidnapped by appellant Devinder Kumar alias Shaipi and his co-accused Gunjan Kumar from a busy place, but no body had seen the child in their company. The trial court, after considering the evidence led by the prosecution, has acquitted accused Gunjan Kumar and Sonu Sharma, while Crl. A. No. 40-DB of 2006 -16- coming to the conclusion that the prosecution has failed to prove charges against them. Now, the question arising for consideration is whether in the facts and circumstances of the case, and on the basis of the aforesaid evidence led by the prosecution, the trial court was justified in convicting both the appellants. In order to properly appreciate the contentions raised and the evidence led by the prosecution, we will examine each evidence under a separate heading. (i) Evidence of extra judicial confession made by the appellants 30. The alleged extra judicial confession was made by both the appellants on 18.10.2004 before PW.2 Charanjit Singh alias Soni. Prior to that, names of both the appellants and their co-accused were already given by complainant Balbir Kumar in his additional statement on 12.8.2004, wherein he had stated that on his enquiry, he found that