SIDHARTH JEITLEY Vs. STATE

JUDGEMENT

(1.) This appeal assails the impugned judgment dtd. 30/7/2019 passed by the learned Additional Sessions Judge convicting the appellant for offences punishable under Ss. 302/364A/201 IPC, and order on sentence dtd. 17/8/2019 awarding sentence of imprisonment for life for offence punishable under Sec. 302 IPC and a fine of Rs.1,00,000.00 (simple imprisonment for five years in default of payment of fine), life imprisonment for offence punishable under Sec. 364A IPC and a fine of Rs.1,00,000.00 (simple imprisonment for five years in default of payment of fine) and rigorous imprisonment for seven years for offence punishable under Sec. 201 IPC and a fine of Rs.50,000.00(simple imprisonment for one year in default of payment of fine). The Incident

(2.) As per the case of the prosecution, Sh. Parvinder Kansal, the complainant registered a complaint in PS Prashant Vihar regarding kidnapping of his elder son Vipul Kansal aged 10 years vide DD No.28A, based on which an FIR No.742/2007 was registered under Sec. 364A read with 34 IPC and investigation of the case was entrusted to Inspector C.M. Meena. During investigation, it was revealed that the kidnapper made ransom calls on mobile number and landline number of complainant from a mobile No. 9971933571. Accordingly, the relevant numbers were put on interception. The kidnapper initially demanded Rs.1.5 crores but later the ransom money was finalised at Rs.33.00 lacs, which the complainant arranged and the IO hander over this cash to Mr. Sandeep Kansal and Mr. Om Prakash for delivery to the kidnapper. On 16/10/2007 at about 11:00 p.m., the kidnapper received ransom money under Ranjeet Singh fly over in New Delhi but after receipt of the ransom money the kidnapper switched off his mobile No. 9971933571. Pursuant to an analysis of call detail records, IMEI numbers and recorded conversations, the appellant was apprehended from his House No. 21/43, 2nd Floor, Old Rajinder Nagar, Delhi. After interrogation, his disclosure statement was recorded and on 17/10/2007 at his instance, the ransom money was recovered from his bedroom and was seized by the IO. The IO further seized two mobile phones, one Nokia 6600 and other Nokia 6270 at the instance of the appellant along with a Honda City Car No. UP32 BV 8094 used in the commission of the crime. The case property was deposited in the malkhana of PS Prashant Vihar and statements of witnesses under Sec. 161 Cr.P.C. were recorded. On 17/10/2007, on pointing out by the appellant, the dead body of the kidnapped boy Vipul was recovered from the left side of G.T. Karnal Road, near village Kumaspur, District Sonipat in the jurisdiction of PS Murthal, Haryana. The complainant identified the dead body as that of his kidnapped son and the information regarding recovery was given to PS Murthal. The crime team and the team from PS Murthal inspected the scene of the crime, inquest proceedings were conducted, and dead body of the deceased child was handed over to the complainant after getting post mortem conducted at general hospital, Sonipat, Haryana. During investigation, IO seized the entry register of the gate of the society having entry of the car of the appellant, two audio cassettes having recorded conversations between the appellant and the complainant on his landline number and at the instance of the appellant, school uniform, school bag and books of the deceased were recovered from 3.5 km ahead towards Delhi from the spot where the appellant had thrown the dead body of the deceased. On 20/10/2007, the IO recovered and seized one more mobile handset Nokia 9500 at the instance of the appellant from his house. The ownership record of Honda City Car was obtained from Lucknow Transport Authority and was found in the name of Mr. Baldev Singh Sahni, father-in-law of the appellant. The IO also collected call detail records and ownership records of relevant mobile numbers from concerned service providers and on 29/12/2007, the investigation of the case was transferred to AATS/North-West District and entrusted to Inspector B.R. Maan. The initial charge-sheet was filed in the learned Trial Court under Ss. 364A/302/201 IPC against the appellant and pursuant to obtaining the FSL report on the voice sample of the appellant, the supplementary charge sheet was also filed under Ss. 420/468/471 IPC. Investigation of the case was transferred to Crime Branch and subsequently the investigation was entrusted to Anti Extortion Cell of Crime Branch. The case file was received at Crime Branch, R.K. Puram and the same was entrusted to Inspector B.S. Jakhar for further investigation. Pursuant to further investigation regarding the mobile numbers used by the appellant, final charge sheet was filed and charges under Ss. 364A/302/201 IPC were framed against the appellant to which he pleaded not guilty and claimed trial. The prosecution examined 67 witnesses in support of its case. The statement of the appellant was recorded under Sec. 313 Cr.P.C. and the defence led the evidence of four witnesses to support their case. Submissions on behalf of the Appellant

(3.) The learned counsel for the appellant submitted in support of the appeal that the entire case of the prosecution is based on circumstantial evidence and the learned Trial Court ignored many broken links and unexplained circumstances leading to the impugned order of conviction and order of sentence. It was contended by the counsel for the appellant that allegedly the ransom call was made on 15/10/2007 on the landline No. 27861155 through mobile No.9971933571. However, neither the said telephone set containing the caller ID facility nor the tape recorder in which the alleged conversation was recorded was seized. The complainant PW-20 alleged that he recorded the conversation in the recorder make Sony and submitted the two sets of audio cassettes to the police. However, there was no document on record to show that permission for intercepting the mobile had been taken since it was initially rejected vide a letter dtd. 23/10/2007 Ex. PW-12/DX1 and later again by letter dtd. 30/10/2007. The entire interception being unauthorized, the case of the prosecution was therefore unsustainable. PW-49, SI Hira Lal stated that he was verbally instructed to hear and record the conversation which he recorded in the CD Ex. P16 and make transcripts of the conversation Ex. PW-49/A having 47 pages but the FSL reported only 38 pages and no Sec. 65B, Indian Evidence Act Certificate of the CD and the transcript was submitted and therefore could not be read or treated as evidence. PW-28, Dr. Rajender Singh, Director, CFSL stated in his report Ex. PW-28/A that he never examined the cassettes provided by PW-20 and the alleged original CD Ex. P16 was never tested by him. The counsel for the appellant further contended that as regards the ransom amount, PW-20 had confirmed that he had put his initials on some currency notes of the ransom amount, but the seizure memo PW-20/E does not show any mark on the currency notes recovered from the appellant. The appellant further contended that the main basis of apprehending the appellant was the mobile No.9971933571, however, neither the SIM of this number was recovered nor the mobile handset which was used to make the ransom call. Further, the said mobile number was issued in the name of one Amit Sahay whose photograph was appended by him on the form after due verification. It was further contended that the recovery of the bag of the ransom amount and mobile handsets were suspect and could not be relied upon. While PW-44 stated in his cross-examination that mobile handsets were recovered in his presence but in the statement of PW-30 who was with PW-44 there is no mention of recovery of mobile handsets and nor are there signatures of PW-30 on the seizure memo. While there was presence of family members of the appellant at the time of the arrest and recovery, none of them were asked to join and the local police of PS Rajinder Nagar were neither intimated prior to the raid nor were the recovered articles deposited at their malkhana. As regards the recovery of the dead body on 17/10/2007, it was contended that the arrest memo Ex. PW-44/C showed that the appellant was arrested under Sec. 302 IPC but the prosecution seems to have already recovered dead body prior to the arrest which is corroborated by Ex. PW-7/DX1 and Ex. PW-7/DX2 where the name of the body in brought dead register is mentioned as unknown and there is no mention of either PW-20 or PW-32. As regards the recovery of the books, uniform of the deceased, it is contended that there are contradictions in the statements of PW-34 ASI Rajender Singh. As regards the recovery of the white Honda City Car, it was contended that PW-60 who gave the CFSL report showed that there was no fingerprint, or any other biological substance recovered from the said car. On the prosecution's case that the appellant was present in the society on that day, witnesses PW-62 and PW-1 became hostile and resiled from their statements and the Entry Guard Ram Kumar was since deceased and was never examined regarding the entry register. The counsel for the appellant contended that as per the prosecution, the complainant and his family were known to the appellant and his family since more than 10 years but despite the said relationship, none of them recognised the voice of the appellant when they received the ransom calls. Also, the alleged kidnapper got the deceased to talk to his father and mother and even then, the deceased did not name the appellant though he had known the appellant since his childhood. The CDR relied upon by the prosecution and the analysis chart is based on a forged document since the recovery memo Ex. PW-25/A is dtd. 19/12/2007 whereas Ex. PW-25/D was printed on 28/12/2007. As per the prosecution, the mobile Nokia 9500 was in the name of the wife of the appellant, but neither was she made an accused nor a witness and the lie detection test of the wife of the appellant confirmed that she had no knowledge of the alleged offence. The counsel for the appellant has inter alia relied on Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 on mandatory requirement of certificate under s. 65-B, Indian Evidence Act, Jaffar v. State, 2013 SCC OnLine Del 1838 on violation of s. 166 Cr.P.C., and Patel Manabhai Mavjibhai v. State of Gujarat, 2012 SCC OnLine Guj 6047 on relevance of recovery made at instance of accused and Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 on reliance of testimony of related witness and relevance of motive on case based solely on circumstantial evidence. Reliance has also been placed on judgments reported in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, Devi Lal v. State of Rajasthan, (2019) 19 SCC 447, Hari Om v. State of U.P., (2021) 4 SCC 345, Shivaji Chintappa Patil v. State of Maharashtra, (2021) 5 SCC 626, State of Odisha v. Banabihari Mohapatra, 2021 SCC OnLine SC 121, Ram Badan Yadav v. State, 2019 SCC OnLine Del 12002, Anil Puri v. State, 2021 SCC OnLine Del 5072 and Prince v State of Punjab, CRA-D No. 1666-DB of 2015, Punjab & Haryana High Court, in support of the contention that chain of circumstantial evidence is incomplete and prosecution has failed to prove its case beyond reasonable doubt. Submissions on behalf of the Prosecution