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TMI Blog2010 (1) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... e later, that is at about the noon time, Ravi Verma (PW) received a call on his landline telephone No. 226059 installed in his shop telling him that his son had been kidnapped and in case he wanted him to return alive, he should pay a ransom of Rs. 50 Lac and that he would be contacted later. Ravi Verma's request to the caller to permit him to speak with his son was denied. Ravi Verma, greatly alarmed, went post haste to the school and was told that his son had not come to class that day. This information confirmed his fear that his son had indeed been kidnapped for ransom. Sub-Inspector Jiwan Kumar (PW) in the meanwhile reached Shimla Pahari Chowk and met Ravi Verma at about 12.30 p.m. and recorded his statement (Ex.PWWW) and on its basis the offence under Section 364 IPC was converted into one under Section 364A of the IPC. The Sub-Inspector also directed Ravi Verma to arrange an ID caller with a tape recorder and to connect it with the telephone in his shop and to await another call from the kidnapper. These directions were carried out by Ravi Verma and the subsequent conversations were duly recorded. At about 4.00 p.m. Ravi Verma received a call on his Mobile No. 9814783418 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... locality while he was near the main gate of his house awaiting the arrival of a rickshaw to carry children to their school and that he had noticed that the appellant Vikram Singh was sitting on the driver's seat and that in the meantime Abhi Verma had arrived with the appellant Jasvir Singh and the two had got into the rear seat whereafter Vikram Singh had driven towards the DAV school. During the investigation, it further came to light that a few minutes later, that is at about 8.40 a.m., Satish Kumar (PW 19) who owned a shop called New Deluxe Bakers and Confectioners situated at Shimla Pahari Chowk had heard a cry of anguish (Bachao Bachao) while standing outside the shop and on looking that side had seen an Alto Car of silver grey colour without a number plate coming from the side of DAV school at a very high speed and a human foot protruding out of the car window. This information was immediately conveyed to the police on telephone. It further came out during the investigation that one Amit Chohan (PW24), a relative of the complainant Ravi Verma, while was on his way to Kartarpur heard the news on the TV about the kidnapping and decided to return home to Hoshiarpur via Kis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptra cars. The Alto car was recovered from the residence of Naresh Kumar Sharma (PW), its owner. The finger print experts PWs. Gurdip Singh and Kashmir Singh also lifted some finger prints from the car which too were sent to the forensic laboratory. The police party then proceeded to katcha tobba where the Chevrolet car was found parked in front of the residence of one Subhash Kapoor and this too was taken to possession and examined by the two linger print experts. The police also recovered a pass port size photograph of Abhi Verma and two applications for the grant of leave by Abhi Verma from the car and these were taken into possession. In addition the police found a black coloured pouch with the label of Capital Bank containing visiting cards of Jasvir Singh. All the articles aforesaid were duly sent to the forensic laboratory for examination. The post mortem on the dead body was carried out by Dr. Mrs. Gurinder Chawla alongwith a team of two Doctors at about 2.30 p.m. on 15th February 2005 but no conclusive report as to the cause of death was given but after the report (Ex.PZZ) of the Chemical Examiner was received, the Doctors opined that the cause of death was chloroform and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses but also related to or associates of Ravi Verma, second that the recoveries made at the instance of the appellants under Section 27 of the Evidence Act could not be taken into evidence as it was the case of the prosecution itself that the appellants had been taken into custody at about 8 p.m. on 15th February 2005 whereas the recoveries had been made on 14th February 2005, and that in any case there was absolutely no evidence to suggest Soma's involvement in the kidnapping or the murder and that her case would, at its worst, fall under Section 201 of the IPC as an attempt to destroy evidence, and finally the death sentence was not warranted as the case was based exclusively on circumstantial evidence and did not fall in the category of the rarest of the rare case. 4. These arguments have been stoutly controverted by Mr. Jaspal Singh, the learned senior counsel for the complainant and by Mr. Kuldip Singh the Counsel representing the State of Punjab. It has been submitted that the circumstances essential for conviction on the basis of circumstantial evidence were complete inasmuch that there was evidence to show that the deceased had been kidnapped for ransom from outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... description suggested that it was a shade of Gold and not Grey or Silver, as had been stated by PWs. Naresh Kumar, Baljeet Kumar Saini, Satish Kumar and Kulwant Kaur (PW1), the Clerk from the Office of the DTO, Hoshairpur. It is true that the colour of the Alto Car is said to be Miami Gold but it is significant that in the cross-examination of all the witnesses referred to above and in particular PW3, PW13 and PW19 who had deposed that the colour was silver grey not a single question had been put as to the fact that the car was gold in colour and not grey. The only inference that can flow from this omission in the cross-examination is that "Miami Gold" was in fact a trade name and not an indication of the actual colour of the car. It is also significant that PW's Naresh Kumar, Baljeet Kumar Saini and Satish Kumar had absolutely no animosity against the appellants which could motivate them to give a false statement as to the colour of the vehicle. Naresh Kumar in fact deposed that the car had been taken by Vicky, his son's friend, at about 7.30 a.m. and had been returned at about 10.30 a.m. or so the same morning. This circumstance fits in with the prosecution story that Vik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any stage prior to his return from Chintpurni. Criticism of PW Satish Kumar is equally misplaced. Admittedly, this witness was the owner of a bakery shop at Shimla Pahari and it was while he was outside the shop that he had heard the screams of "Bachao Bachao" and on looking in that direction had seen a car being driven away at a high speed and a human foot protruding out of the car window and on seeing this unusual activity the owner of Laxmi Steels, Satish Kumar's neighbour, had informed the Police on telephone. Further, Satish Kumar clarified that as he was running a bakery which attracted customers from 8.00 or 8.30 a.m. onwards and for that reason it was his practice to open his shop early. It is also significant that this witness was not in any way connected with Ravi Verma, the complainant, and that they were not even known to each other. Mr. Jaspal Singh has also cited Rana Partap and Ors. v. State of Haryana 1983(3) SCC 327 as to the meaning of the expression "chance witness". 3. There were three eyewitnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the trade name for the chemical Pentazocine and that the maximum normal dose for Fortwin was 0.5 ml to 1 ml. and that anything in excess of 1ml. would be a fatal dose. She further clarified that Chloroform, which was an anesthetic, earlier used during surgery, was not being used any more because of its known toxicity. In cross-examination, however, the Doctor admitted that the quantitative analysis regarding the Chloroform and Pentazocine had not been made by the Chemical Examiner and she further revealed the existence of two pin-point brown coloured marks on the lateral side of the right buttock which was the usual side for the administration of an injection. 9. The evidence of the Medical Board has to be scrutinized in the light of the evidence pertaining to the purchase of the Fortwin injections and the Chloroform. The first witness in this connection is PW4 Anand Kumar the owner of a shop called Scientific Sales Corporation at Hoshiarpur. He deposed that he knew the appellants as they were all residing near his house. He further went on to say that on the 11th February 2005 he had been present in his shop at 4.00 p.m. when the appellants had come to him and told him that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . when the Fortwin injections were purchased from Bhanu Aggarwal PW5, the second step was the purchase- of Chloroform at 4.00 p.m. the same afternoon from PW4 Anand Kumar and the third the borrowing of the Alto car from Naresh Kumar on the morning of 12th February 2005. These three transactions are intimately connected with the kidnapping and subsequently the murder of Abhi Verma. In State of Himachal Pradesh v. K.L. Pardhan and Ors. 1987 (2) SCC 17, this Court while examining the concept of criminal conspiracy has observed: In the opinion of the Special Judge every one of the conspirators must have taken active part in the commission of each and every one of the conspiratorial acts and only then the offence of conspiracy will be made out Such a view is clearly wrong. The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement Ex.PFFF that he had carried the dead body in his Chevrolet Car No. PB-08(T) AL1718 and thrown it in the area of village Daulatpur. This statement was signed by Jasvir Singh and attested by Manohar Lal Verma PW-30, Kulwinder Singh and Shiv Raj Singh, ASI. Vikram Singh and Sonia appellants had made similar statements and they too were duly recorded. The appellants had thereafter disclosed that the Alto Car was parked in the house of Naresh Kumar PW in Bahadurpur Enclave and the police party had reached that place and taken it into possession as well and on a search thereof a black coloured purse Ex.P.34 containing a passport size photograph of the deceased Ex.P36 and two applications for grant of leave Ex.DD and DE were recovered therefrom. The appellants had thereafter led the police party to Mohalla Katcha Tobba and the aforementioned Chevrolet Car had been taken into possession and on a search thereof (amongst other items) a pouch containing visiting cards of Jasvir Singh were recovered. The dicky of the car had also been vacuumed with the help of a vacuum cleaner and the rubble had been taken into possession. Both the cars were subjected to examination by finger print e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, ''accused person" in Section 24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Pakala Narayan Swami v. Emperor by the Judicial Committee of the Privy Council, "Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation". The adjectival clause "accused of any offence" "is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides. "No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid provision they could not be said to be in police custody. We see that Section 46 deals with 'Arrest how made'. We are of the opinion that word "arrest" used in Section 46 relates to a formal arrest whereas Section 27 of the Evidence Act talks about custody of a person accused of an offence. In the present case the appellants were undoubtedly put under formal arrest on the 15th February 2005 whereas the recoveries had been made prior to that date but admittedly, also, they were in police custody and accused in an offence at the time of their apprehension on the 14th February 2005. Moreover in the light of the judgment in the Constitution Bench and the observation that the words in Section 27 "accused of any offence" are descriptive of the person making the statement, the submission that this Section would be operable only after formal arrest under Section 46(1) of the Code, cannot be accepted. This argument does not merit any further discussion. 13. Some argument has been raised by Mr. Jaspal Singh as to whether (even assuming that Section 27 of the Evidence Act could not be applied to the facts of the present case) yet the conduct of the appellants when the raid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Darshan Kaur's house in the Chevrolet car belonging to him and the three appellants had further revealed that the dead body had been disposed of in the fields of village Daulatpur and the dead body was recovered and taken into possession by Memo Ex.PGGG signed by Manohar Lal as also Sub-Inspector Jeevan Kumar. We are unable to accept Mr. Sharan's bare submission that the evidence of Manohar Lal and Sub-Inspector Jeevan Kumar should not be believed as they were interested in the successful outcome of the prosecution, as no other material adverse circumstance has been brought to our notice. 17. The matter does not end here. As already indicated above, Ravi Verma had been called on the telephone repeatedly on his landline No. 226059 from Mobile No. 98147 83418. Admittedly, the landline telephone is fixed in the shop of Ravi Verma and it has come in evidence that the card aforesaid had been purchased on 14th February 2005 by Jasvir Singh appellant. PW14 stated that Jasvir Singh had come to him in hurry and demanded a connection which had been supplied to him after he had undertaken he would supply the identification papers later on. PW12 Jaswinder Singh who had a dealersh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers from the Alto and Chevrolet car belonged to Vikram Singh and Jasvir Singh respectively. It is significant that the Chloroform bottle recovered from Darshan Kaur's residence was also examined and the thumb impression of Jasvir Singh was detected thereon. 19. Mr. Sharan has referred us to the defence evidence in order to prove the alibi of Jasvir Singh and Sonia. Dr. Daljeet Singh, a very reputed Eye Surgeon of Amritsar, has appeared as DW1. He deposed that Sonia had been operated by him on 13th May 2002 and that she had come several times to his clinic for a re-check and that she had visited the hospital on the 11th February 2005 and had been attended by one Jaswinder Singh. When cross-examined, however, the Doctor admitted that though the OPD in the hospital was computerized there was no entry in the name of Sonia as on 11th February 2005. Moreover, even assuming that Sonia had indeed gone with her husband to Amritsar on the 11th of February 2005, as claimed, it was possible for them to go there and return in time to purchase the Fortwin injections and the Chloroform etc. on 11th February 2005. Doctor Daljeet Singh's evidence, therefore, does not in any way prove the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e all young persons and the possibility that they could be reformed during their incarceration could not be ruled out and this too was a factor which had to be considered in awarding the sentence. He has also referred us to Dhondiba Gundu Pomaje and Ors. v. The State of Maharashtra 1976 (1) SCC 162 that an accused of young age should not ordinarily be meted out a death sentence. Reference has also been made by Mr. Sharan to some observations in Bachan Singh v. State of Punjab (1980) 2 SCC 684 that the mitigating circumstance in favour of an accused must also be factored in. It has also been pleaded that the additional circumstance in favour of Sonia was that she was not only young but she was also a lady and as it was possible that she had been influenced into the unpleasant situation by her husband, the death sentence should not be given to her in any case. Mr. Sharan has also placed reliance on two recent judgments of this Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 and an unreported judgment in Sushil Kumar v. State of Punjab Criminal Appeal No. 670 of 2009 decided on September 1, 2009 whereby it has been indicated that the latest trend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ife' principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of his doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law endorsed by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others it if suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so "in rarest of rare cases" when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll factors were considered before the "option is exercised". In Santosh Kumar's case (supra) this Court further expounded on the propriety and justification in awarding the death sentence. The broad principle that emerges from all the judgments is that in evaluating the category of the rarest of the rare, the facts of that particular case must be given pre-dominant consideration. As noted above, the High Court in the present matter while determining the various factors against the appellants has observed as under (verbatim reproduction): In the instant case, from a careful reading of facts; minute analysis of evidence on records, and due consideration of rival submissions, we notice the following special reasons to hold that this case has acquired enormity (sic) of that kind which brings it in the rarest of rare category and for those reasons, we accept death reference and confirm death sentence: 1) This is a case that involves kidnapping of a school going innocent boy for ransom and from discussion on motive, as above, it appears that the accused had raised a demand of Rs. 50,00,000/- from father of the deceased boy who was an established jeweler of Hoshiarpur; 2) This h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... napper gave him threats that if he wanted his son to be alive, he should immediately arrange for ransom amount of Rs. 50,00,000/-. It appears as the police became active, the accused could not extract the ransom and out of panics, poisoned the boy to death by administering heavy dozes of chloroform and fortwin. However, as accused Vikram Singh @ Vicky was known to the family and the body had seen them, in all probabilities, the accused would not have spared his life in order to destroy evidence even in case of having received the ransom amount. Thus, from very beginning, the accused had kidnapped the boy for his elimination finally in either case (whether ransom amount was paid or not). On the other hand, Mr. Sharan has been at pains to point out that the appellants were young persons, and Sonia a lady as well, who could be rehabilitated and the pre-dominant trend being against the imposition of the death penalty as of today, and the evidence being circumstantial in nature, the death penalty should not be awarded. 26. The learned Counsel for the Complainant and the State have, however, pointed out that Section 364A had been introduced in the Penal Code by virtue of Amendment Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, as already indicated, we have the eye witness statement of PW Baljeet Saini with regard to the kidnapping of Abhi Verma from outside the school. 27. Likewise in Mohan's case (supra) which again related to a kidnapping for ransom and murder under Sections 364A and 302 of a young boy aged 10 years, while assessing the aggravating and mitigating circumstances, it was observed that the former far outweighed the others. It was held as under: So far as the appellant Gopi is concerned, he not only did participate by pulling the rope around the neck of the boy, as already narrated, but went to his house and brought a coir rope. After removing the rope from the neck of the boy, he encircled the coir rope again around the boy's neck and the pulled the said rope for about 1/2 a minute and the boy stopped breathing. Thereafter he took out one Keltron TV box from underneath the cot and packed the boy in the box. These aggravating circumstances on the part of accused Mohan and Gopi clearly demonstrate their depraved state of mind and the brutality with which they took the life of a young boy. It further transpires that after killing the boy and disposing of the dead body o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he society and there are fairly good chances of his reformation as he has learnt sufficient lesson from it. Extreme poverty had driven the appellant to commit the gruesome murder of three of his very near and dear family members - his wife, minor son and daughter. There is nothing on record to show that appellant is a habitual offender. He appears to be a peace loving, law abiding citizen but as he was poverty stricken, he thought in his wisdom to completely eliminate his family so that all problems would come to an end. Precisely, this appears to be the reason the offence of murder. No witness has complained about his bad or intolerable behaviour in the past Many people had visited his house after the incident is indicative of the fact that he had cordial relations with all. He is now about 35 years of age and there appear to be fairly good chances of the appellant getting reformed and becoming a good citizen. 29. This judgment can by no stretch of imagination advance the case of appellants before us. The balance sheet has been drawn up by the High Court. We adopt the same. 30. We, however, do find some reason in favouring Sonia, the lady appellant, wife of Jasbir Singh. Kee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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