Crl.A.No.685/07 Page 1 of 20 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on : 14th May, 2010 Judgment Pronounced on: 17thMay, 2010 + CRL.A. 685/2007 K.K.SAINI ..... Appellant Through: Mr.S.S.Gandhi, Senior Advocate with Mr.Irshad Ahmad, Advocate. versus STATE ..... Respondent Through: Mr.M.N.Dudeja, A.P.P. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. The victim Sikander Lal Pahwa residing at A-8, Greater Kailash Enclave-II, New Delhi left his house at about 8:00 PM on 2.3.1994 to purchase a shaving kit from the market nearby. At around 8:30 PM he spoke to his daughter at her matrimonial house and informed her that he would be returning home after 2-3 days. At 10:30 PM a call was received at the house of Sikander Lal Pahwa on the telephone No.6414874 which was attended to by his son Rajat Pahwa. The caller asked him whether he would like to speak to his father and on Rajat Pahwa saying ‘Yes’, the call was disconnected. Another call was received at 11:05 PM at the No.6414874 but was disconnected the moment, the caller Crl.A.No.685/07 Page 2 of 20 whose voice was recognised by Rajat Pahwa as that of his father, said ‘Hello’. At 11:07 PM another call was received at the No.6414874 which was once again attended to by Rajat Pahwa. His father told him to listen carefully and that informed that one J.P. Bhai Sahab would ring up and he should act as instructed by J.P. Bhai Sahab and that the police should not be informed since it was a matter of his life and Rajat should not bother about money, which could be earned. 2. It was apparent to Rajat that his father had been abducted and was put to fear of his life. Notwithstanding Sikander Lal Pahwa instructing Rajat not to inform the police, after deliberations with his family members, Rajat informed the police at 12:50 AM i.e. at the middle of the night that his father had been abducted. The information was recorded at PS C.R.Park vide DD No.21A and FIR Ex.PW-14/A was registered. 3. It is apparent that the first and the foremost thing required to be done was to put telephone No.6414874 under observation. It was so done by attaching the necessary equipment at the Nehru Place Telephone Exchange wherefrom the No.6414874 was being serviced. The police as also the family members of Sikander Lal Pahwa had an agonizing wait till 7:22 PM on 3.3.1994. A call was received but the number wherefrom it was coming was not showing. The talk lasted for 6 minutes and 59 seconds. Rajat Pahwa spoke to the caller as also to his father Sikander Lal Pahwa who conveyed to him the demand of ransom to be paid to secure his release i.e. Rs.1.5 crores. The investigating officer thought it advisable to add on a parallel line to the No.6414874 and accordingly the parallel line being No.6464486 was put into place by making the said number a parallel connection to the No.6414874. Crl.A.No.685/07 Page 3 of 20 4. It became another agonizing wait, for the reason, the next call received at the No.6414874 was at 8:53 PM on 4.3.1994, which was tracked at the parallel line activated on the No.6414874 through the No.6464486. Unfortunately for the police even this could not throw any light on the number wherefrom the ransom call was made. This call, which lasted for 3 minutes and 50 seconds was again attended to by Rajat Pahwa. Sikander Lal Pahwa spoke to him. The next day i.e. on 5.3.1994 at 9:34 PM another call was received which lasted for 7 minutes and 12 seconds. It was tracked at the No.6464486. Sikander Lal Pahwa spoke with his son. Unfortunately once again, the telephone number wherefrom the call was made could not be tracked. 5. Sikander Lal Pahwa walked home on 7.3.1994 being set free at around 11:00 PM. He and his son claimed that everything was fine. No ransom was paid. This was not acceptable to the Investigating Officer who decided to pursue the matter. 6. The Investigating Officer contacted the office of VSNL, for the reason he suspected, and rightly so, that since Sikander Lal Pahwa was in India all throughout and he spoke to his son on 3.3.1994, 4.3.1994 and 5.3.1994, it had to be a telephone number in India; since the monitoring equipment attached to the telephone No.6414874 as also on the parallel line No.6464486 could not detect the number wherefrom the call was incoming, it was apparent that the said telephone number in India was linked to the telephone No.6414874 by means of a conference facility through another number which had to be outside the territory of India and additionally had to be a number not on an electronic exchange. The officer concerned at VSNL generated the CDR Dump/Call Data Record Crl.A.No.685/07 Page 4 of 20 through the operating system of VSNL with effect from 1.3.1994 till 8.3.1994 and microscopically looked whether any outstation call from abroad was made to the telephone No.6414874 and saw that on 2.3.1994 three calls and on 3.3.1994 and 5.3.1994 one call each from a telephone installed at Dubai were made. As noted in paras 1 to 3 above, three calls were received on the number 6414874 on 2.3.1994 and one call was received on the said number on 3.3.1994 and 5.3.1994. It thus became apparent that the telephone used for a conference facility was at Dubai. It had only to be ascertained as to which telephone number in India was also in contact with another number at Dubai at the same time. The only problem, which could never have been solved, was to the identity of the said number at Dubai. But, if in respect of all the calls which were received at the number 6414874 or on the parallel line i.e. the No.6464486, if at the same time another number was in touch with Dubai, it was plain and apparent that it was said number which was used to contact the family of the victim. 7. The CDR Dump/Call Data Record, proved at the trial as Ex.PW-18/A, revealed that on 3.3.1994 at 19:22:12 hours a call was registered at the VSNL equipment with landing time at 19:22:14 hours. The answering time was 19:22:24 hours and the clearing time was 19:29:24 hours i.e. the actual time of duration during which the caller and the person called remained intact, was 6 minutes and 59 seconds. This call was logged to the No.6875697. This corresponded to the immediate next call logged from Dubai at 19:22:48 hours with landing time 19:22:50 hours, answering time being 19:22:02 hours and clearing time being 19:23:13 hours i.e. call duration being of 10 seconds at the No.6414874. Similarly this Crl.A.No.685/07 Page 5 of 20 interconnectivity was noted on 4.3.1994 and 5.3.1994 when at the same time the line from Dubai was in contact with the telephone No.6875697 and the parallel line No.6464486. Surely, it could not be a coincidence that on 3 different occasions on 3 different dates at the same time an unknown number from Dubai would be ringing up at the telephone No.6414874 and at the same time an unknown number from Dubai would be ringing up the telephone No.6875697. It was obvious that the conference facility interconnecting the telephone No.6414874 and the telephone No.6875697 was through Dubai and the same number at Dubai, having a conference facility i.e. a double line, was simultaneously in touch with the said two telephone numbers in Delhi. 8. The task of the Investigating Officer had become fairly simple. All he had to do was to find out the subscriber and the place of installation of the telephone No.6875697. It was easy to gather said information. All what was required was a visit at the concerned exchange of MTNL. It was the telephone exchange at R.K.Puram. With reference to the record of MTNL the Investigating Officer was informed that the subscriber of the said telephone i.e. the telephone No.6875697 was one Mohan Lal Arora and that the telephone was installed at Flat No.1036, Sector XII, R.K.Puram. 9. The flat in question is government property and belongs to the Union Government. Was a government servant in league? A visit by the Investigating Officer to the Directorate of Estates, Union of India furnished information that the flat stood allotted to one Hari Shanker Kekhar Assistant Registrar Supreme Court of India. Hari Shanker Kekhar confessed to the Investigating Officer only the partial truth; denying having sublet the flat, which he apparently did Crl.A.No.685/07 Page 6 of 20 and we have no reasons to doubt his having not done so. He said that he never shifted to the said flat but allowed one A.K.Singh to use the flat for a few days at the instance of one S.C.Sharma. The Estate Officer, Union of India affirmed that the flat was allotted to Shri Hari Shanker Kekhar, Assistant Registrar, Supreme Court of India on 2.9.1993. Thus, it became apparent that the telephone No.6875697 was activated at said flat No.1036, Sector XII, R.K.Puram sometimes after 2.9.1993. The Investigating Officer had a relook at the record of MTNL and learnt that prior thereto the said number was installed at Arora Tailors in Sarojini Nagar Market. A visit to the market and find out Arora Tailors was all what was needed. It was so done. Surfaced Mohan Lal Arora carrying on business as a Tailor and Draper under the name Arora Tailors at Sarojini Nagar Market who told the Investigating Officer that he was the subscriber of the No.6875697 which was installed at his shop and since he had another number, at the asking of one Anil Raj who also works in the same market and was known to him, he sold the number to one person A.K.Singh and at his instance got the telephone shifted to flat No.1036, Sector XII, R.K.Puram. 10. Now, Shri Hari Shanker Kekhar and Shri Mohan Lal Arora both stated that the flat and the telephone respectively were handed over by them to A.K.Singh, said person had to be tracked. 11. The flat in question was put under surveillance and on 28.3.1994 the appellant K.K.Saini was found entering the flat and prior thereto the flat was lying locked. He was apprehended. Since the seizures effected from him have not assumed any incriminating character, we eschew reference Crl.A.No.685/07 Page 7 of 20 thereto. A crime team was summoned immediately. Chance prints being 19 in number were lifted. 12. When in custody sample fingerprint impressions of K.K.Saini were obtained. Fingerprint impressions of Sikander Lal Pahwa were also obtained and the 19 chance prints lifted from the flat and the sample finger prints of K.K.Saini and Sikander Lal Pahwa were sent for comparison and a report was sent that two chance prints Q-2 and Q-3 matched those of Sikander Lal Pahwa and the chance print Q-9 matched that of K.K.Saini. 13. Shown to Mohan Lal Arora and Hari Shanker Kekhar, they confirmed to the Investigating Officer that K.K.Saini was introduced to them as A.K.Singh. The victim Sikander Lal Pahwa also told the Investigating Officer that K.K.Saini used to be in the flat at R.K.Puram when he was in illegal confinement. 14. It was apparent that the appellant K.K.Saini was a suspect against whom incriminating evidence gathered was of he being the person who purchased the telephone connection pertaining to the No.6875697 and it was he who was the unauthorized sub occupant of flat No.1036, Sector XII, R.K.Puram where said telephone was installed and it was this number which was in contact with the telephone at the house of the victim through a conference facility at a telephone at Dubai, number whereof could not be ascertained by the Investigating Officer. 15. Through the disclosure-cum-confessional statement of K.K.Saini names of 9 persons were disclosed as co- conspirators, 5 of whom remained proclaimed offenders and no incriminating evidence surfacing against the other 4 were Crl.A.No.685/07 Page 8 of 20 acquitted. The reason for their acquittal is the witnesses of the prosecution turning hostile. 16. The hand of the international gangster Om Prakash Srivastava @ Babloo Srivastava whom the police suspects to be a front man of the international gangster Dawood Ibrahim surfaced. The CDR Dump/Call Detail Record Ex.PW-18/A shows nearly 80 calls from an unknown number at Dubai to the telephone No.6875697 between the date 1.3.1994 and 8.3.1994 were exchanged. It is thus not surprising that all witnesses of the prosecution turned hostile save and except the official witnesses as also Mohan Lal Arora PW-7 and Hari Shanker Kekhar PW-5. The most serious jolt was Rajat Pahwa turning totally hostile and even disclaiming his remembering the talks which he had with his father as also the abductors of his father which surfaced during investigation and in respect whereof the relevant facts stand recorded in his statement recorded under Section 161 Cr.P.C. by the Investigating Officer. Appearing as PW-2 he washed his hands off by saying that he remembers nothing except that his father was abducted. He denied that any ransom was paid. Sikander Lal Pahwa PW-1 also turned hostile by refusing to identify any accused as his abductor(s). He accepted his being abducted and being set free on 7.3.1994 between 10:00 PM to 11:00 PM. Fortunately for the prosecution he admitted having spoken to his daughter and his son when he was in the illegal confinement of his abductors. He also admitted that he was kept in confinement in flat No.1036, Sector XII, R.K.Puram which he recognized with reference to the exterior facia of the flat. 17. Ajit Singh Kataria PW-3, Junior Engineer, CPWD, with reference to the inventory register, relevant abstract being Crl.A.No.685/07 Page 9 of 20 Ex.PW-3/A, deposed and hence proved that a type IV flat No.1036, Sector XII, R.K.Puram was allotted to Shri Hari Shanker Kekhar, Assistant Registrar Supreme Court of India who occupied the flat as per their record on 2.9.1993 and vacated the same on 11.4.1994. Hari Shanker Kekhar PW-5 accepted allotment of the said flat to him in his capacity as the Assistant Registrar of Supreme Court of India and stated that through one S.C.Sharma he gave possession of the flat to a person who disclosed his name as A.K.Singh and that the appellant K.K.Saini was the one who impersonated as A.K.Singh. Mohan Lal Arora PW-7 deposed that he was the owner of Arora Tailors situated in Sarojini Nagar Market and that telephone No.6875697 was installed at the said shop as he was the subscriber thereof. In March 1994 one Anil Raj introduced him to one A.K.Singh and on the request of Anil Raj he sold his telephone No.6875697 to A.K.Singh, who got the said connection installed at House No.1036, Sector XII, R.K.Puram. He stated that the appellant K.K.Saini was the one who impersonated as A.K.Singh. Tejinder Singh PW-18, the DGM, Traffic Management, BSNL Mumbai deposed that on 8.3.1994 he was in charge of International Gateway Switch VSNL. That Ex.PW-18/A pertaining to the international incoming and outgoing calls from and to Dubai for the period 2.3.1994 to 8.3.1994 were handed over by him to the Investigating Officer after generating the same from the computer in which the same was stored. 18. Inspector Raman Lamba PW-19 who took over the investigation on 3.3.1994 proved the investigation conducted by him and how he stepwise cracked the case and how he reached out to the various witnesses. He proved the various exhibits seized by him. He deposed to having recorded the Crl.A.No.685/07 Page 10 of 20 statements of various persons under Section 161 Cr.P.C. He deposed of having received the report of the finger print expert. It may be noted that he did not depose as to how he took the sample finger prints of the accused but simply deposed that he sent the sample finger prints to the finger print expert. 19. Vide impugned judgment and order dated 7.9.2007 the appellant has been convicted for the offence punishable under Section 364-A IPC. In returning the verdict of guilt the learned Trial Judge has held that the testimony of S.K.Chadha PW-4 and his report Ex.PW-4/B proved that of the 19 chance prints lifted from flat No.1036, Sector XII, R.K.Puram, 2 were proved to be those of Sikandar Lal Pahwa which evidenced that Sikander Lal Pahwa was kept as captive in the said house; that 1 chance print matched that of the appellant, evidenced even appellant being in the flat in question; that the testimony of Mohan Lal Arora proved that telephone No.6875697 was installed in the flat in question; that the testimony of Ajit Singh Kataria established that the flat in question was officially allotted to Hari Shanker Kekhar and the testimony of Hari Shanker Kekhar established that he had given possession of the flat to the appellant; that the testimony of Ajit Singh Kataria and Ex.PW-18/A established that through an undisclosed telephone at a non-electronic exchange in Dubai conference facility was utilised to connect telephone No.6875697 to speak at the telephone No.6414874 and the testimony of Sikander Lal Pahwa and his son Rajat established ransom calls being received at telephone No.6414874 and thus there was sufficient evidence to prove the fact that the appellant was if not the sole, a part of a group to abduct for ransom Sikander Lal Pahwa. Crl.A.No.685/07 Page 11 of 20 20. Arguing the appeal, Shri S.S.Gandhi, learned senior counsel for the appellant urged that since neither was the permission taken from the competent Court to obtain the sample finger print impressions of the appellant nor was the mandate of Section 5 of the Identification of the Prisoners’ Act 1920 complied with, the learned Trial Judge could not accept in evidence the report Ex.PW-4/B of the finger print expert. Second submission urged was that the rule of best evidence required proof of the fact that telephone No.6875697 being installed at flat No.1036, Sector XII, R.K.Puram through the service provider i.e. MTNL with reference to the records maintained by MTNL to prove that the said connection which as claimed by Mohan Lal Arora was installed at his shop in Sarojini Nagar Market was shifted at his instance to the flat in question. A link submission to this was that Mohan Lal Arora has simply said that he sold his telephone to one A.K.Singh who was actually the appellant and this means that Mohan Lal Arora sold the instrument. Thus, with reference to the second submission and the link submission thereto, it was urged that it could not be positively concluded that the appellant had dominion over the telephone No.6875697 as also there was no proof that the said telephone was installed at flat No.1036 Sector XII, R.K.Puram. 21. We may note that learned counsel for the appellant made no submissions to challenge the finding returned that the testimony of Tejinder Singh PW-18 and the CDR Dump/Call Data Record Ex.PW-18/A proved that through a telephone having conference facility installed in Dubai telephone No.6875697 was put into contact with telephone No.6414874 and the testimony of Sikander Lal Pahwa and his son established ransom calls being received through a caller Crl.A.No.685/07 Page 12 of 20 speaking from the No.6875697 to the No.6414874 and that Sikander Lal Pahwa was illegally confined at a place where telephone No.6875697 was in operation. 22. Notwithstanding no submission being urged in respect of the finding returned on the issue noted in para 21 above we have perused the relevant evidence and in respect of Ex.PW-18/A note the calls at serial No.28, 29, 43, 44, 59 and 60, which are as under:- S. No. Date Reg. Time Landing Time Ans. Time Clearing Time Dura- tion Phone No. 28. 3.3.94 19.22.12 19.22.14 19.22.24 19.22.24 6.59 6875697 29. 3.3.94 19.22.48 19.22.50 19.23.02 19.23.13 0.10 6414874 43. 4.3.94 20.53.13 20.53.15 20.53.24 20.57.15 3.50 6875697 44. 4.3.94 20.53.43 20.53.45 20.53.56 20.57.59 4.00 6464486 59. 5.3.94 21.31.37 21.31.38 21.31.49 21.42.48 10.58 6875697 60. 5.3.94 21.34.38 21.34.39 21.34.50 21.42.03 7.12 6464486 23. Suffice would it be to state that Sikander Lal Pahwa was kept in illegal confinement somewhere in Delhi and there is evidence that he was made to speak over the telephone, firstly with his daughter and then repeatedly on 3 different dates with his son, at the telephone No.6414874 installed in his residence where he used to reside with his son. It is thus apparent that Sikander Lal Pahwa was confined at a place where a telephone was available. That the source of the incoming call, whenever a call was received at telephone No.6414874 and Sikander Lal Pahwa spoke to his son, was from Dubai makes it further evident that the said phone at Dubai had a conference facility i.e. had a double line and hence could simultaneously be in contact with two telephones. Obviously, one contact was with the No.6414874 and the other Crl.A.No.685/07 Page 13 of 20 was in contact with the telephone which was at the place where Sikander Lal Pahwa was confined. Now, both telephones i.e. telephone with the No.6414874 and telephone through which Sikander Lal Pahwa spoke had to be in contact with the telephone in Dubai, or to put it differently if at the same time two calls from Dubai and no more were in contact with the telephone No.6414874 and another number, the conclusion is plain and obvious, it has to be the said another number through which Sikander Lal Pahwa spoke. To illustrate a little better, the problem at hand was that the telephone number from where the incoming calls were being received could not be detected. But this was known that the telephone through which Sikander Lal Pahwa was being made to speak at the telephone No.6414874 was connected to said number through a conference facility at a number in Dubai. That two telephones in the city of Delhi were provided with inter- connectivity through a conference facility from a telephone at Dubai, meant that two incoming calls from said number and both being overlapping for some duration of time had to exist. Thus, the first and the foremost thing to be looked at in the CDR Dump/Call Data Record was to locate as aforesaid. If more than two incoming calls, say for example, four were simultaneously incoming from Dubai to four telephones in Delhi, one of which was the No.6414874, it was plain that the inter-connectivity had to be with any of the other three telephones. But if only two incoming calls were being received from Dubai it had to be a case where the telephone where the other call was received was the one through which Sikander Lal Pahwa spoke. Thus, notwithstanding no challenge made on the issue, plain and simple logic tells us that since, when calls were received on 3rd, 4th and 5th March at the telephone No.6414874, two of which were detected on the parallel line Crl.A.No.685/07 Page 14 of 20 No.6464486, simultaneously the only calls received from Dubai were at the No.6875697, it was plain and simple that Sikander Lal Pahwa was made to speak through the No.6875697 and hence he who had dominion over the said telephone was the suspect, unless he explained the circumstance as to how his telephone was used. This was a fact within the special knowledge of the said person and we see no escape from the applicability of Section 106 of the Evidence Act. 24. In the issue of the person who had dominion over the telephone No.6875697, since it stands proved that Sikander Lal Pahwa spoke to his son using the said telephone connection, it is immaterial whether it is proved through independent evidence other than that relating to proof that the said telephone was installed at a particular place, for the reason the incriminating nature of the evidence is of access through the telephone connection and not access through a place.