Supreme Court of India
GAURAV MAINIversusTHE STATE OF HARYANA
- Citation
- 2024 INSC 488
- Decided
- 9 July 2024
- Disposal
- Appeal(s) allowed
Holding
The conviction of the appellants was unsustainable because the prosecution case was riddled with procedural violations, unreliable evidence, and failure to examine a vital witness, leading to the quashing of the judgments and acquittal of the accused.
Summary
The appellants were convicted for kidnapping a minor for ransom, robbery and criminal conspiracy under IPC sections 364A, 392 and 120B. The prosecution's case relied on the statements of the victim and his father, but the victim's family never reported the incident to police and the key witness, the grandfather, was never examined. The FIR was registered solely on unverified secret information, and the investigating officer improperly returned seized currency notes without a court order. The trial and high courts failed to summon the crucial witness and ignored procedural lapses in handling the case property, leading the Supreme Court to infer an adverse inference against the prosecution. Consequently, the Court held that the prosecution case was fabricated, quashed the convictions, and acquitted the appellants.
Issues considered
- The validity of the FIR registered on the basis of secret information without verification of a cognizable offence
- Whether the trial court erred in not summoning and examining the crucial witness under Section 311 CrPC and Section 165 Evidence Act
- Whether the recovery and disposal of seized currency notes complied with the procedural requirements of the CrPC
- Whether the prosecution established a reliable link between the accused and the mobile numbers used for ransom calls under Section 65B of the Evidence Act
- Whether the identification of the accused by the victim was reliable given the lack of a proper identification parade
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 173, s. 311, s. 451, s. 452, s. 457
- Indian Evidence Act, 1872s. 165, s. 27, s. 65B
- Indian Penal Code, 1860s. 120B, s. 364A, s. 392
Subjects
Kidnapping for ransomFirst disclosureInherent improbabilitiesDelayDock identificationTrustworthy evidenceDisclosure statementsRegistration of FIR by police officials based on source informationAggrieved personDisposal of propertyNon-production of the case propertyRecovery of the currency notesSummon witnessNon-examination of witness
Judgment
[2024] 7 S.C.R. 333 : 2024 INSC 488
Gaurav Maini
v.
The State of Haryana
(Criminal Appeal No(S). 696 of 2010)
09 July 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
Courts below, if justified in convicting and sentencing the appellants
for the offences punishable u/ss. 364A, 392 and 120B IPC.
Headnotes†
Penal Code, 1860 – ss. 364A, 392 and 120B – Kidnapping for
ransom – Robbery – Prosecution case that the appellants
kidnapped a minor boy for ransom and robbed him, and on
payment of ransom of Rs. One crore, the boy was released –
FIR was registered by police on the basis of the secret
information received by them while patrolling about such
offences – Pursuant thereto, first disclosure of the incident
made by the grandfather to the Investigating Officer, however,
FIR was not registered regarding the alleged kidnapping of
the boy – Conviction and sentence of the appellants for the
offences punishable u/ss. 364A, 392 and 120B by the trial
court – Upheld by the High Court – Correctness:
Held: Entire prosecution story totally concocted and does not
inspire confidence – Inherent improbabilities in the versions of the
two star prosecution witnesses-father of the kidnapped boy and the
kidnapped boy – Prosecution failed to examine the most relevant
witness-grandfather which compels the Court to draw an adverse
inference against the prosecution – No convincing evidence led by
the prosecution to connect the accused persons with the suspected
mobile numbers – FIR could not have been registered on the basis
of the secret information received by SI because the said information
did not disclose the commission of any cognizable offence – If at
all, the FIR had to be registered, on the basis of the statement of
grandfather recorded by the police officials – However, no such
steps taken by the police officials, thus, creates doubt on the bona
fides of the actions of the Investigating Agency – Complainant party
* Author
334 [2024] 7 S.C.R.
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failed to offer logical explanation for failing to file an FIR even after
the kidnapped boy had returned home – Delay in taking legal action
creates a grave doubt on the truthfulness of the entire prosecution
case – Kidnapped boy though knew accused A2 from before and
claims to have identified him at the time of the incident however did
not disclose his name to the police officials till the statement was
recorded by the investigating officer – Also omission of the names of
the accused persons in the special report – Furthermore, identification
of the accused by the boy not free from doubt – Prosecution case
failed to led trustworthy evidence to establish the recovery of the
currency notes at the instance of the accused because the disclosure
statements were not proved as per law – Currency notes were handed
back to father without any order of the Court which is an act of gross
misconduct on the part of the Investigating Officer – High Court as
well as the trial court failed to advert to these important loopholes
and shortcomings in the evidence available on record which are
fatal to the prosecution case – Prosecution case is fabricated and
the accused were framed in the case for ulterior motive – No iota
of truth in the prosecution story – Thus, conviction of the accused
appellants by the trial court and as affirmed by the High Court cannot
be sustained – Judgment passed by the courts below quashed and
set aside – Evidence. [Paras 30, 31, 51-55]
FIR – Registration by police officials merely based on source
information – Effect:
Held: Police officials could not register the FIR merely on the
basis of such source information without even verifying the fact
as to whether any such incident had actually occurred – Very fact
that the said FIR was registered by referring to an incident without
making any verification from the aggrieved persons clearly shows
that the Investigating Agency right from inception had started plotting
that the case should proceed in a particular direction – This is a
very suspicious circumstance which creates a grave doubt on the
conduct of the Investigating Agency. [Para 34]
Code of Criminal Procedure, 1973 – ss. 451, 452 and 457 –
Disposal of property – Action of the Investigating Officer in
returning the mudammal currency notes to the complainant
without any order of the Court – Effect:
Held: Disposal of the case property could only have been done by
taking recourse to the procedure contained u/ss. 451, 452 and 457
as the case may be – Investigation Officer had no authority to release
[2024] 7 S.C.R. 335
Gaurav Maini v. The State of Haryana
the currency notes without an order of the Court and his action to
the contrary tantamounts to grave misconduct – Trial court causally
brushed aside the plea regarding the non-production of the currency
notes in the Court observing that the recovered currency notes were
released on superdari by the Magistrate – However, the trial court
went on to note that the currency notes were never seen after the
recovery and were not produced in the Court when the prosecution
witnesses were examined – No order for final disposal of the currency
notes was passed by the trial court u/s. 452 which is a mandatory
requirement – Sheer indifference exhibited by the courts below is
shocking, to say the least – Thus, the entire process of recovery of
the currency notes is clearly flawed, marked by procedural errors –
Courts below erred by not pulling up the prosecution for flagrant
disregard of legal procedures and failure to document key details
which undermines the prosecution’s case. [Para 42]
Code of Criminal Procedure, 1973 – s. 311 – Evidence Act,
1872 – s. 165 – Power to summon material witness, or
examine person present – Power to put questions or order
production – Ambit of:
Held: Conjoint reading of s. 311 CrPC and s. 165 of the Evidence
Act makes it clear that the trial court is under an obligation not
to act as a mere spectator and should proactively participate in
the trial proceedings, so as to ensure that neither any extraneous
material is permitted to be brought on record nor any relevant fact
is left out – It is the duty of the trial court to ensure that all such
evidence which is essential for the just decision of the case is
brought on record irrespective of the fact that the party concerned
omits to do so – On facts, grandfather of the kidnapped boy was
the first person who came into contact of the police officials and
he admittedly disclosed about the incident to Investigating Officer,
thus, the grandfather would have been the most vital witness
to unfurl the truth of the matter, however, for the reasons best
known to the prosecution, he was not examined as a witness in
the case – Trial court should have remained vigilant and it was
absolutely essential for the Court to have exercised powers u/s.
311 CrPC read with s. 165 of the Evidence Act so as to summon
and examine the grandfather in evidence because his evidence
was essential for a just decision of the case – Non-examination
of the said witness at the trial is a fatal lacuna to draw an adverse
inference against the prosecution. [Paras 47, 48, 50]
336 [2024] 7 S.C.R.
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Witness – Non-examination of the most relevant witness at
the trial – Effect:
Held: Trial court failed to perform its lawful obligation u/s. 311
CrPC rw s. 165 of the Evidence Act – Most vital witness whose
deposition was imperative for arriving at the truth of the matter
not produced by the prosecution and the trial court took no steps
whatsoever to summon him by exercising its powers u/s. 311
CrPC and s.165 of the Evidence Act – Non-examination of the
said witness at the trial is a fatal lacuna leading to an adverse
inference against the prosecution – Code of Criminal Procedure,
1973 – s. 311 – Evidence Act, 1872 – s. 165. [Paras 47]
Case Law Cited
Pooja Pal v. Union of India and Others [2016] 11 SCR 560 :
(2016) 3 SCC 135; Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal and Ors. [2020] 7 SCR 180 : (2020) 3 SCC 216 –
referred to.
List of Acts
Penal Code, 1860; Evidence Act, 1872; Code of Criminal Procedure,
1973.
List of Keywords
Kidnapping for ransom; First disclosure; Inherent improbabilities;
Delay; Dock identification; Trustworthy evidence; Disclosure
statements; Registration of FIR by police officials based on source
information; Aggrieved person; Disposal of property; Non-production
of the case property; Recovery of the currency notes; Summon
witness; Non-examination of witness.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 696
of 2010
From the Judgment and Order dated 19.01.2009 of the High Court of
Punjab & Haryana at Chandigarh in CRLA No.779-DB of 2005
With
Criminal Appeal Nos. 695 and 1724 of 2010 and Criminal Appeal No.
584 of 2013
[2024] 7 S.C.R. 337
Gaurav Maini v. The State of Haryana
Appearances for Parties
Ms. Kiran Suri, Neeraj Kumar Jain, Sr. Advs., Ms. Bharti Tyagi,
Vikash Kumar, T. N. Singh, Vikas Kumar Singh, Ms. Rajshree Singh,
T. Mahipal, Advs. for the Appellant.
S. Udaya Kumar Sagar, A.A.G., Ms. Bina Madhavan, Dr. Monika
Gusain, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
1. The appellants were subjected to trial in the Court of learned
Additional Sessions Judge, Panchkula(hereinafter being referred to
as the ‘trial Court’) in Sessions Case No. 11 of 2003 for the offences
punishable under Sections 364A, 392 and 120B of the Indian Penal
Code, 1860(hereinafter being referred to as ‘IPC’). Vide judgment and
order dated 26th September, 2005, the learned trial Court held the
appellants guilty for the above mentioned offences and sentenced
them as below: -
Provision under Sentence
which convicted
Section 364A IPC Life imprisonment and a fine of Rs. 10,000/- and
in default, further undergo rigorous imprisonment
for one year.
Section 392 IPC Rigorous imprisonment for five years and a fine of
Rs. 5,000/- and in default, further undergo rigorous
imprisonment for six months.
Section 120B IPC Life imprisonment and a fine of Rs. 10,000/- and
in default, further undergo rigorous imprisonment
for one year.
2. Being aggrieved by the conviction and sentences awarded by the
learned trial Court, the appellants preferred separate appeals before
the Punjab and Haryana High Court. The Division Bench of the
Punjab and Haryana High Court dismissed the appeals preferred
by the appellants vide common judgment dated 19th January, 2009
338 [2024] 7 S.C.R.
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affirming the judgment passed by the learned trial Court and upholding
the conviction and sentences of the appellants.
3. The aforesaid judgment rendered by the Division Bench of the
Punjab and Haryana High Court is subjected to challenge in these
four appeals.
4. Since all the appeals arise from common judgment dated 19th January,
2009, the same have been heard and are being decided together
by this judgment.
Brief Facts: -
5. On 15th April, 2003 Jai Singh, SI(PW-27), Police Station, Sector-5,
Panchkula, while being present near the market of Sector 16,
Panchkula along with the police team in connection with patrol duty
and crime checking, claims to have received a secret information
to the effect that a gang was operating in Panchkula which was
indulged in demanding ransom from parents after kidnapping the
children and in case of non-payment of ransom, threats were given
to eliminate the kidnapped children. It was further divulged in the
information that such type of incident had already occurred in Kothi
No. 81-A, Sector 17, Panchkula.
6. A ruqa(Exhibit-PAA) with these allegations was sent to the police
station by Jai Singh, SI(PW-27) based whereupon a formal
FIR No. 283 of 2003(Exhibit-PAAA/1) dated 15 th April, 2003
came to be registered by Jai Raj, ASI(PW-25) for the offences
punishable under Sections 387 and 507 IPC at Police Station,
Sector-5, Panchkula. Investigation of the case was assigned to
Surjit Kumar(Investigating Officer)(PW-37), Sub-Inspector, CIA,
Panchkula. He proceeded to Kothi No. 81-A on 15th April, 2003
where one Shamlal Garg met him and informed that his grandson
namely, Sachin Garg(PW-2) had been kidnapped. Shamlal Garg
also alleged that they had received ransom calls from two mobile
phones bearing Nos. 9815XXXXXX and 9815XXXXXX. Both
the numbers were found to be of service provider Bharti Airtel
Company. The Investigating Officer(PW-37) made enquires from
the office of Bharti Airtel Company and received information that
these mobile SIMs had been sold to Kohli Traders, Sector 26,
Chandigarh. The Senior Manager of Bharti Airtel Company, Shri
Rakesh Michael provided the call detail records of both the mobile
[2024] 7 S.C.R. 339
Gaurav Maini v. The State of Haryana
numbers from 28th March, 2003 to 3rd April, 2003. On an inquiry
made from Kohli Traders, it came to light that both the SIM cards
had been sold to one Singla Traders, Sector-7, Chandigarh on 24th
February, 2003. On an enquiry from the shop of Singla Traders,
the Investigation Officer(PW-37) was provided information that
these SIM cards had been purchased by two boys from Reena
Singla, sister of the owner of Singla Traders. Based on the call
data of the mobile numbers as provided by Bharti Airtel Company,
it was found that mobile sets bearing IMEI(International Mobile
Equipment Identity) Nos. 350179626659830, 350019563917100
and 350609807685060 had been used for operating these SIM
cards. The statements of Sachin Garg[kidnapped boy(PW-2)] and
Mahesh Garg[(Father of the kidnapped boy(PW-1)] were recorded
by Investigating Officer(PW-37) on 20th April, 2003.
7. Mahesh Garg(PW-1) stated that on 2nd April 2003, his son Sachin
Garg had gone to play badminton at the playground of Sector 7,
Panchkula, in a car, but he did not return till 9:00 pm. Thereupon, he
along with his family members made efforts to trace Sachin Garg out.
He received calls from Mobile Nos. 9815XXXXXX and 9815XXXXXX
and the caller(s) informed them that Sachin Garg(PW-2) was in their
custody and demanded ransom to the tune of Rs. 1 crore for his
release. The caller(s) also threatened that in case, the ransom demand
was not satisfied, Sachin Garg would be eliminated. A threat was also
given to eliminate the entire family in case any intimation was given
to the police.
8. Fearing for the life of his son, Mahesh Garg(PW-1) arranged
money from his relatives, friends and his own bank accounts.
He again received calls on 3rd April, 2003 threatening him not to
inform the police. He was further directed to reach a designated
place with the ransom amount and to wait for further instructions.
Accordingly, he took the ransom amount to the address given by
the miscreants i.e. Sector 17, Chandigarh, thereafter, to Sector 8,
Chandigarh and ultimately to PGI hospital. On reaching there, he
received another call and was directed to leave the bag with the
ransom amount in his car and to proceed to the emergency ward
of the hospital and wait for further instructions. Accordingly, he
left the briefcase containing the money in the car and proceeded
to the emergency ward of PGI hospital. However, he did not find
anyone present there. After some time, he received another call
340 [2024] 7 S.C.R.
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asking him to leave the place and wait for another call with the
assurance that his son would be released along with the car after
the cash amount had been counted and verified. He received
another call by which he was informed that his car was parked
near the chowk of Sector 11/15, Chandigarh. Accordingly, he took
the car and proceeded to his house. At about 10:30 pm, another
call was received informing him that his son Sachin Garg(PW-2)
was standing near the chowk of Sector 20, Panchkula. He brought
Sachin Garg(PW-2) back home from that place. He again received
a call threatening that if any attempt was made to inform the police,
then the entire family would be eliminated. Thus, out of fear, they
did not approach the police.
9. Sachin Garg(PW-2) in his statement(Exhibit-DB) recorded by the
Investigating Officer (PW-37) on 20th April, 2003 under Section 161
of the Code of Criminal Procedure, 1973(hereinafter being after
referred to as ‘CrPC’) stated that on 2nd April, 2003, he had gone
to Sector 7, Panchkula in his car for playing badminton. While he
was returning home, and had reached near Sector 17, Panchkula,
a Maruti car obstructed his path. Three persons came out of the car
from which one was carrying a pistol. The said assailant placed the
pistol against his head and asked him to shift to the adjoining seat.
The second assailant armed with a knife occupied the rear seat.
He was then directed to shift to the rear seat. His wrist watch, ATM
card, school card, gold chain and some money lying in his pocket
were robbed at pistol and knife point. In the meantime, the third
assailant who was also armed with a knife took the driver’s seat
and his car was driven towards the pulia where Sachin Garg(PW-2)
was blindfolded and shifted into the Maruti car and was taken away
to some unknown location. He was kept confined in a room during
the intervening night of 2nd and 3rd April, 2003. A person named
Gaurav Bhalla was present in the room and he was calling out
names of the other accused as Sanjay, Mintu and Gaurav. He was
again blindfolded in the evening and was taken in a car and was
dropped off at the market of Sector 20, Panchkula with the instruction
to remove the blindfold(patti) after 10 minutes and stand there and
wait for his father. The accused threatened to eliminate his entire
family in case intimation of the incident was given to the police.
On returning home, he came to know that his father had paid an
amount of Rs. 1 crore for securing his release.
[2024] 7 S.C.R. 341
Gaurav Maini v. The State of Haryana
10. Further investigation revealed that Gaurav Maini was using Mobile No.
9814XXXXXX, Gaurav Bhalla was using Mobile No. 9814XXXXXX
and Sanjay @ Sanju was using Mobile No. 9814XXXXXX.
11. Based on the statements of Mahesh Garg(PW-1) and Sachin
Garg(PW-2), offences punishable under Sections 392, 342, 364A
and 506 IPC were added to the case on 20th April, 2003.
12. The accused Pankaj Bansal, Gobind, Amit Verma and Gaurav Maini
were arrested on 29th April, 2003. It is alleged that Gaurav Maini
suffered a disclosure statement under Section 27 of the Indian
Evidence Act, 1872(hereinafter being referred to as ‘Evidence
Act’) divulging that he, along with Gaurav Bhalla, Sanjay @ Sanju
and Munish Bhalla had kidnapped Sachin Garg(PW-2), who was
released after collecting an amount of Rs.1 crore as ransom. The
accused Gaurav Bhalla was arrested on 1st May, 2003 and he too
suffered a disclosure statement under Section 27 of the Evidence
Act. Likewise, the accused Munish Bhalla and Sanjay @ Sanju also
made disclosures to the Investigating Officer(PW-37) under Section
27 of the Evidence Act.
13. Following items were allegedly recovered at the instance and in
furtherance of the disclosures made by the accused appellants
being Gaurav Maini(A1), Gaurav Bhalla(A2), Munish Bhalla(A3) and
Sanjay @ Sanju(A4): -
Name of
Recovered Articles
Accused
(i) A wristwatch of Sachin.
(ii) Currency notes to the tune of Rs. 17,00,000/-
(iii) Cash amount to the tune of Rs. 3,50,000/-
from his house
(iv) A motorcycle along with papers.
Gaurav (v) One mobile phone marked Digital worth Rs.
Maini 7500/-
(vi) One gold kara
(vii) Cash amount to the tune of Rs. 3,72,500/-
from his house
(viii) One mobile phone Panasonic bearing IMEI
No. 350179626659830
342 [2024] 7 S.C.R.
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(i) Cash amount to the tune of Rs. 18,50,000/-
from his locker at Central Bank of India, Sector
10, Panchkula.
(ii) Receipt worth Rs. 27,300/- regarding the
purchase of a Mobile phone.
Gaurav (iii) A mobile phone worth Rs. 27,000/-
Bhalla (iv) One L.G. Air Conditioner worth Rs. 23,500/-
from Cabin No. 20, SCO No. 37, Sector 11,
Panchkula
(v) Cash amount to the tune of Rs. 5,80,000/-
from Cabin No. 20, SCO No. 37, Sector 11,
Panchkula
(i) Cash amount to the tune of Rs. 20,00,000/-
from his locker at Ambala Central Cooperative
Bank, Ambala.
(ii) An ATM card and school card of Sachin.
(iii) One Motorcycle bearing registration No.
Munish HR01E-4113 (Bullet) worth Rs. 35,000/-
Bhalla (iv) One Panasonic mobile
(v) Cash amount to the tune of Rs. 4,55,500/-
from his Battery shop in Mohar Market Ambala
City.
(vi) His Maruti Car bearing No. HR 35A-0012
used in Kidnapping.
(i) Rs. 22,000/- during his personal search.
(ii) Rs.20,50,000/- currency notes in denomination
of Rs. 500/- from the Almirah of his house.
(iii) Rs. 1,28,000/- from a shop
(iv) An Air pistol used in the offence.
Sanjay @
Sanju (v) One mobile phone marked Samsung IMEI
No. 350019563917100
(vi) A gold chain of Sachin
(vii) Amount to the tune of Rs. 40,000/- deposited
in his bank account at HDFC bank, Sector
11, Panchkula.
[2024] 7 S.C.R. 343
Gaurav Maini v. The State of Haryana
14. Upon completion of the investigation, a charge sheet came to be
filed against seven accused persons in the Court of learned Chief
Judicial Magistrate, 1st Class, Panchkula. The offence under Section
364A IPC being exclusively sessions triable, the case was committed
to the Court of learned Additional Sessions Judge, Panchkula for
trial. The learned trial Court framed charges against the accused
Gaurav Maini(A1), Gaurav Bhalla(A2), Munish Bhalla(A3) and
Sanjay @ Sanju(A4) for offences punishable under Sections 364A,
392 and 120B IPC. They denied the charges and claimed trial. The
remaining three accused namely Pankaj Bansal, Gobind and Amit
Verma were discharged.
15. The prosecution examined 37 witnesses and exhibited 125
documents in order to bring home the charges. The accused were
questioned under Section 313 CrPC. They denied the prosecution
allegations and claimed to be innocent. Gaurav Maini(A1) made
a pertinent assertion that he had no concern whatsoever with
the alleged crime and the case was totally cooked up. Gaurav
Bhalla(A2) stated that he was involved in a love affair with Shivani
@ Kaku, daughter of Mahesh Garg(PW-1) since 3 to 4 years prior
to the occurrence. Shivani @ Kaku used to send him greeting cards
as an expression of love. She often used to ring him up from her
mobile phone and landline numbers. On 1st April, 2003, Shivani @
Kaku approached him and pressurized him to elope with her. He
tried to reason with her that it was not the right step and advised
her to return home. Since, she was pressurizing him for marriage,
he assured her that they would marry. He was illegally detained
by the CIA officials on 26th April, 2003 and was kept confined and
tortured in custody. No recovery was effected from him and all the
recoveries were manipulated. The other accused also denied the
prosecution allegations and claimed to be innocent. Four witnesses
were examined in defence.
16. After hearing the arguments of both the sides and analysing the
evidence, the learned trial Court proceeded to convict and sentence
the accused appellants(A1, A2, A3 and A4) as above vide judgment
and order dated 26th September, 2005. The appeals preferred by
the appellants against the judgment rendered by the trial Court were
rejected by the Division Bench of the Punjab and Haryana High
Court vide judgment dated 19th, January, 2009 which is subjected
to challenge in these four appeals by special leave.
344 [2024] 7 S.C.R.
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Submissions of learned counsel for the appellants:-
17. Ms. Kiran Suri, learned senior counsel representing the accused
appellant Gaurav Bhalla(A-2), vehemently and fervently contended
that the entire case setup by the prosecution is false and fabricated.
For assailing the impugned judgments, learned senior counsel
advanced the following pertinent submissions: -
(i) That the alleged incident of kidnapping and demand of ransom
took place on 2nd April, 2003. Even though the kidnapped boy,
i.e., Sachin Garg(PW-2) had been released on 3rd April, 2003,
the family members took no steps whatsoever to report the
matter to the police. This rank silence of the family members
and their utter failure to report the matter to the police or the
authorities casts a grave doubt on the truthfulness of the entire
prosecution case.
(ii) That the Investigating Officer(PW-37) went to the house of the
kidnapped boy on 15th April, 2023, and recorded the statement
of his grandfather Shamlal Garg on the very same day. However,
no effort was made by the Investigating Officer(PW-37) to
record the statement of Sachin Garg(PW-2) on the same day
despite he being available in the house. Sachin Garg(PW-2),
categorically stated to the Investigation Officer(PW-37) on 20th
April, 2003 that he had identified Gaurav Bhalla(A2) at the time
of the incident. Had there been an iota of truth in the prosecution
case, identity of Gaurav Bhalla(A2) would definitely have been
disclosed by Shamlal Garg to the Investigating Officer(PW-37),
when his statement was recorded on 15th April, 2003.
(iii) That the entire process of recovery of money and other articles
at the instance of the accused is totally fabricated and remained
unsubstantiated because the arrest memos of the accused were
never proved by the prosecution. The accused made pertinent
assertion that the police had kept them illegally confined for
almost seven days and thus proving of the arrest documents
was imperative to arrive at the truth of the case.
(iv) That the prosecution, did not tender any evidence regarding the
fate of the currency notes allegedly recovered at the instance of
the accused. The Investigating Officer(PW-37) candidly admitted
that he handed back the currency notes to Mahesh Garg(PW-1)
[2024] 7 S.C.R. 345
Gaurav Maini v. The State of Haryana
of his own accord. As per the learned senior counsel, this action
of the Investigating Officer in returning the mudammal currency
notes to the complainant(PW-1) without any order of the Court,
throws grave doubt on the truthfulness of the entire process of
disclosures and discovery.
(v) That the SIM cards in question were not issued in the name
of the accused. The prosecution did not lead any evidence
whatsoever to show that the accused had ever acquired or
were using the mobile numbers from which the ransom calls
were allegedly made.
(vi) That the secret information based whereupon FIR No. 283 of
2003(Exhibit-PAA/1) was registered was not brought on record
and thus it is a clear case of concealment of vital evidence
warranting adverse inference against the prosecution.
(vii) That there is no material to show as to when the special report
reached the Magistrate concerned pursuant to the registration
of the formal FIR No. 283 of 2003(Exhibit- PAA/1).
(viii) That the accused other than Gaurav Bhalla(A2) were not
known to the victim Sachin Garg(PW-2) from before. The
Investigation Officer(PW-37) made no effort whatsoever to
subject these accused to the Test Identification Parade(TIP)
and thus, the dock identification of the accused namely Gaurav
Maini(A1), Munish Bhalla(A3) and Sanjay @ Sanju(A4) for the
first time in the Court by Sachin Garg(PW-2) is of no value
whatsoever. Attention of the Court in this regard was drawn
to the deposition of Mahesh Garg(PW-1) who stated that his
son was never asked to identify the accused by the police in
any identification parade. Learned senior counsel also referred
to the cross-examination of Sachin Garg(PW-2) wherein, he
stated that once he had gone to CIA with his father and there,
he saw the accused from some distance. The police did not
record his statement regarding the identification of the accused.
Sachin Garg(PW-2) also admitted that he had told his father
Mahesh Garg(PW-1) and his grandfather Shamlal Garg that
one of the accused was Gaurav Bhalla (A2) and that the other
accused were calling out the names of each other. Thus, as
per the learned senior counsel, the omission regarding the
names of these accused in the previous statement of Sachin
346 [2024] 7 S.C.R.
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Garg(PW-2) recorded under Section 161 CrPC is fatal to the
prosecution case.
(ix) That the so-called disclosure statements of the accused as
recorded by Munish Kumar, Sub-Inspector(PW-33) and Surjit
Kumar, Investigating Officer(PW-37) were not proved as per law.
The prosecution failed to prove that the recovered mudammal
articles including the currency notes were kept securely at
the malkhana of the police station. In this regard, attention
of the Court was drawn to the statement of Investigating
Officer(PW-37), highlighting the fact that the said witnesses
did not utter a single word regarding the fate of the currency
notes after the purported seizure and his failure to explain as to
how the same were dealt with after the seizures were allegedly
made at the instance of the accused.
(x) That the learned trial Court as well as the High Court
failed to give due credence to the evidence of the defence
witnesses. Stress was laid by the learned senior counsel to
the deposition of Manav Malhotra(DW-4) who stated that he
often saw Gaurav Bhalla(A2) and Shivani @ Kaku, sister
of the kidnapped boy-Sachin Garg(PW-2) together. It was
contended that, as a matter of fact, the family members were
aware about the ongoing affair between Gaurav Bhalla(A2)
and Shivani @ Kaku and were opposed to it and hence, the
case of kidnapping for demand of ransom was cooked up so
as to put Gaurav Bhalla(A2) and his companions behind bars
and sever the relationship.
(xi) It was further contended that the defence witnesses, gave
affirmative evidence for proving the plea of alibi raised by the
accused. However, neither the trial Court nor the High Court gave
due consideration to the evidence of the defence witnesses and
brushed their testimonies aside in a totally perfunctory manner.
18. The learned counsel representing the remaining accused appellants
adopted the submissions of learned senior counsel Ms. Kiran Suri.
19. The court was apprised that accused Gaurav Maini(A1), Gaurav
Bhalla(A2), Munish Bhalla(A3) and Sanjay @ Sanju(A4) were in
custody for 10 years 11 months(approx.); 9 years(approx.); 7 years
2 months; 10 years 10 months(approx.), respectively.
[2024] 7 S.C.R. 347
Gaurav Maini v. The State of Haryana
20. On these grounds, learned counsel for the appellants implored the
Court to accept the appeals, set aside the impugned judgments, and
acquit the accused appellants of the charges.
Submissions on behalf of the respondent-State: -
21. Per contra, learned counsel for the State, vehemently and fervently
opposed the submissions advanced by learned senior counsel for
the accused appellants. It was contended that the prosecution case
is founded on unimpeachable testimony of the minor boy Sachin
Garg(PW-2) who was kidnapped by the accused appellants for
demand of ransom. The witness gave clinching evidence identifying
and implicating the accused appellants for his kidnapping and release
after payment of ransom. The trivial contradictions appearing in the
evidence of the witness rather establish that he is a truthful witness
and has given a true picture of the incident. The evidence of Sachin
Garg(PW-2) finds due corroboration from the testimony of Mahesh
Garg(PW-1), 161 CrPC statement of Shamlal Garg recorded by
Investigating Officer(PW-37) and the incriminating recoveries effected
at the instance of the accused appellants.
22. He contended that the recoveries having been effected proximate to
the incident of kidnapping for ransom, the burden of explaining, as
to how the incriminating articles including the huge sums of money
came into their possession shifted on to the accused appellant by
virtue of the presumption provided under Section 106 read with
Section 114(a) of the Evidence Act. Since, the accused failed to offer
any plausible explanation in this regard the prosecution is entitled
to raise the statutory presumption against them.
23. Learned counsel further urged that since the accused appellants had
given a grave threat of evil consequences to Mahesh Garg(PW-1),
he was justified in not approaching the police for reporting the matter
and his silence cannot be treated as an unnatural conduct.
24. He further urged that the trivial contradictions in the evidence of
the prosecution witnesses cannot be considered sufficient so as to
discard the entire prosecution case which is based on unimpeachable
direct as well as circumstantial evidence. He further contended that
the trial Court and the High Court have recorded concurrent findings
of facts in the impugned judgments after appreciating the evidence
available on record and thus this Court should not feel persuaded
348 [2024] 7 S.C.R.
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to interfere in the conviction of the accused while exercising the
jurisdiction under Article 136 of the Constitution of India. On these
grounds, he implored the Court to dismiss the appeals and affirm
the impugned judgments.
25. We have given our thoughtful consideration to the submissions
advanced at bar and have gone through the impugned judgments
and the evidence placed on record.
Discussion and Conclusion: -
26. At the outset, we are of the opinion that the very inception of the
prosecution case is shrouded under a grave cloud of doubt and we
shall record our reasons for the above conclusion while discussing
the prosecution evidence. It is undisputed that neither the victim
Sachin Garg nor his family members ever reported the incident to
the police. Sachin Garg(PW-2) deposed that when he was driving
on the road dividing Sectors 17 and 18, three miscreants obstructed
his path. They had come in a Maruti car. One of them placed a
pistol against the head of Sachin Garg and asked him to shift to
the adjoining seat. The other assailant was armed with a knife and
he directed Sachin Garg to shift to the rear seat of the car and
snatched away his gold chain. The person holding the pistol came
and sat beside him. The third assailant who too was armed with a
knife, occupied the driver’s seat and extended a threat. His wrist
watch, ATM card, identity card and some cash amount were also
snatched away by the same person who had taken the gold chain.
The miscreants then put a blindfold on his eyes and drove away
the car. Sachin Garg(PW-2) admitted that while being blindfolded,
he could identify the driver as Gaurav Bhalla(A2). He was taken
to an unknown location where they reached after driving for 45
minutes. He was kept confined in a room for the entire night with
the blind-fold. He overheard the accused appellants talking to each
other and, thus, he managed to catch their names. Then, he was
taken in a car and accused appellants told him that they would
be releasing him at a place from where, his father would pick him
up. He was extended a threat that in case he disclosed about the
occurrence to anyone, his entire family would be eliminated. He
was dropped off after some time. He opened the blind-fold(patti)
and found himself standing in Sector 20, Panchkula. Ten to fifteen
minutes later, his father arrived and took him home. Thereafter,
[2024] 7 S.C.R. 349
Gaurav Maini v. The State of Haryana
he came to know that his father had paid a sum of Rs. 1 crore as
ransom for securing his release.
27. In cross examination, Sachin Garg(PW-2) admitted that the gold chain
which had been snatched by the accused appellants was returned
to him at Sector 20, Panchkula and the ATM card was returned to
him by the police officials. The witness admitted that he was never
called by the police officials to join any identification proceedings.
He had randomly gone to the CIA officer with his father where he
saw the accused from some distance. A pertinent admission was
made by the witness that he had identified the accused appellants
and had overheard them taking names of each other and that he
had disclosed these facts to his father Mahesh Garg(PW-1) and
grandfather Shamlal Garg. The witness also admitted that when the
police officials recorded his statement, he did not give the description
about the features of the accused.
28. A pertinent suggestion was given by the defence to the witness(PW-2)
in cross examination that his sister Shivani @ Kaku was involved
in a relationship with Gaurav Bhalla(A2) and that both of them
eloped on 1st April, 2003. Shivani @ Kaku returned on 14th April,
2003, whereafter, the case was cooked up by concocting a story
against Gaurav Bhalla(A2) and other accused who were his
friends and relatives. However, he denied the said suggestion. The
witness(PW-2) was confronted with his previous statement under
Section 161 CrPC statement(Exhibit-DB) wherein he had named
Gaurav Bhalla(A2) as the fourth accused. He admitted that his
statement was recorded by the police officials for the first time on
20th April, 2003 and that the police officials had visited his house
once or twice earlier.
29. Mahesh Garg(PW-1) testified that his son Sachin Garg(PW-2) had
gone to play badminton on 2nd April, 2003 at around 6.00 pm. He
did not return till 9:00 pm, on which efforts were made to trace his
whereabouts, but he could not be located. At 11:00 pm, a telephone
call was received by the witness(PW-2) from an unknown person
who demanded a ransom of Rs. 1 crore for the safe return of his
son. A threat was given that if police was informed, his son would
not remain alive. Fearing for his son’s life, Mahesh Garg (PW-1)
did not report the matter to the police. However, he discussed the
issue with his relatives and friends and collected an amount of Rs.
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1 crore from various sources. The next day, he received a second
telephone call informing him the location of the car of Sachin
Garg(PW-2) which he collected. He received a third telephone call
on 3rd April, 2003 wherein again, the demand of ransom and the
threat to kill Sachin Garg(PW-2) was repeated. On the same day
at about 7:00-7:30 pm, he received a call directing him to leave
his house with the ransom amount. Acting on the directions of the
miscreant(s), the witness placed the ransom amount in his car and
proceeded towards PGI hospital, Chandigarh. As instructed by the
caller, he left the cash in the car and went to the emergency ward
of the hospital. Sometime later, his car was seen lying abandoned
at the crossing of Sector 11-Sector 15, Chandigarh. The suspects
called and told him that Sachin Garg(PW-2) would be released after
counting the ransom amount and, thus, he returned home. On the
same day, at about 10:30 pm, he got a telephone call intimating
that his son had been released in the market area of Sector 20,
Panchkula. On receiving this information, Mahesh Garg(PW-1)
proceeded to Sector 20, Panchkula and brought his son Sachin
Garg(PW-2) back home. One more call was received with a threat
that if the police or anyone else was informed, the entire family
would be eliminated.
30. We find that there exist inherent improbabilities in the versions of
these two star prosecution witnesses i.e. Mahesh Garg(PW-1) and
Sachin Garg(PW-2) which go to the root of the matter.
31. Neither of the witnesses stated that the kidnappers allowed Sachin
Garg(PW-2) to talk to his family members so as to lend assurance
about his safety. In this background, it is hard to believe that
Mahesh Garg(PW-1) would rely upon such an unverified telephone
conversation and proceed to collect a huge sum of Rs. 1 crore
and thereafter, leave it in an unsecured condition inside his car
without having any assurance whatsoever regarding the safety
of Sachin Garg(PW-2) for whose purported release the ransom
amount had been demanded. This is a grave lacuna which brings
the entire prosecution case under a cloud of doubt. In the natural
course of human conduct, the family members of the kidnapped
person would expect and require some kind of assurance about
the victim’s safety before agreeing to part with a huge sum of
money as ransom.
[2024] 7 S.C.R. 351
Gaurav Maini v. The State of Haryana
32. Admittedly, the police had visited the house of Mahesh Garg(PW-1)
on two to three occasions before 20th April, 2003, but he never
informed them about the incident. Inspite of the statement of
Shamlal Garg having been recorded by the police, the FIR was not
registered regarding the alleged kidnapping of Sachin Garg(PW-2)
and his release after payment of ransom. The FIR(Exhibit-PAA/1)
was admittedly registered on the basis of the so-called secret
information received by Jai Singh, SI(PW-27) which was also not
brought on record.
33. A perusal of the deposition of Mahesh Garg(PW-1) would reveal
that he admitted that from the very ransom amount paid by him, he
received back a sum of Rs. 95,08,000/- from the Court, but he could
not remember the date of receiving the amount. It is however an
admitted position as emerging from record that no such order was
ever sought for or procured from the Court. Mahesh Garg(PW-1)
also admitted that his son Sachin Garg(PW-2) was never asked to
identify the accused by the police in any identification parade.
34. Jai Singh, SI(PW-27) deposed that he was on patrolling duty at
the market of Sector-16, Panchkula when he received a secret
information about a gang operating in Panchkula which was indulged
in kidnapping children for ransom and if the amount was not paid,
they would kill the victims and that such an incident had occurred
in Kothi No. 81-A, Sector 17, Panchkula. The witness(PW-27)
recorded a ruqa(Exhibit-PAA) dated 15th April, 2003 on the basis
of this information and forwarded the same to the Police Station,
Sector 5, Panchkula for registration of a case. Acting on the
ruqa(Exhibit-PAA) forwarded by Jai Singh(PW-27), FIR(Exhibit-
PAA/1) came to be registered for the offences punishable under
Sections 387 and 507 IPC by Jai Raj, ASI(PW-25). Indisputably,
the ruqa(Exhibit-PAA) was merely based on a source information
and it is totally unacceptable that the police officials could register
the FIR merely on the basis of such source information without
even verifying the fact as to whether any such incident had actually
occurred. The very fact that this FIR(Exhibit-PAA/1) was registered
by referring to an incident which took place in Kothi No. 81-A, Sector
17, Panchkula without making any verification from the aggrieved
person/s clearly shows that the Investigating Agency right from
inception had started plotting that the case should proceed in a
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particular direction. This is a very suspicious circumstance that
creates a grave doubt on the conduct of the Investigating Agency.
35. After the FIR(Exhibit-PAA/1) had been registered on the basis
of ruqa(Exhibit-PAA) received from Jai Singh, SI(PW-27), the
investigation of the case was assigned to Surjit Kumar, Investigating
Officer(PW-37). The Investigating Officer(PW-37) testified on
oath that he proceeded to Kothi No. 81-A, Sector-17, Panchkula
where Shamlal Garg met him and gave him two mobile Nos.
being 9815XXXXXX and 9815XXXXXX alleging that these mobile
numbers were of the kidnappers. The Investigating Officer(PW-37)
then proceeded to the Bharti Airtel Company, Mohali to verify the
ownership of these two mobile numbers. The administrative official
of the Company informed the Investigating Officer(PW-37) that
the mobile numbers had been sold to Kohli Traders, Sector-26,
Chandigarh on which he proceeded to Kohli Traders and met
the proprietor Yogesh Kohli who in turn provided information that
the mobile numbers(SIM cards) had been sold to Singla Traders,
Sector-8, Chandigarh. He thereupon went to Singla Traders, but
could not find anyone there. He again went to Singla Traders on
17th April, 2003, where Niranjan Singla and Reena Singla met him
and gave him the details of the persons to whom the SIM cards
had been sold. However, no record of this sale was maintained
at Singla Traders. Pawan Kumar, Head Constable procured the
call details of these two mobile numbers vide memo(Exhibit-PV).
However, the Investigating Officer(PW-37) did not divulge anything
about the identity of the person/s to whom the SIM Cards had been
sold by Singla Traders.
36. It is important to note here that as per the version of Investigating
Officer(PW-37), Shamlal Garg’s statement was recorded on 15th April,
2003 wherein he gave details of the two mobile numbers alleging
that these were the mobile numbers of the kidnappers. The Investing
Officer(PW-37) did not state that Shamlal Garg complained to him
that his grandson Sachin Garg(PW-2) had been kidnapped or that
ransom money had been paid to the kidnappers for securing his
release. It is not in dispute that Shamlal Garg was not examined as a
witness in the case and that Section 161 CrPC statements of Mahesh
Garg(PW-1) and Sachin Garg(PW-2) were recorded as late as on
20th April, 2003. Thus, there is a glaring omission manifest from the
[2024] 7 S.C.R. 353
Gaurav Maini v. The State of Haryana
evidence of the Investigating Officer(PW-37) which shows that even
after the police officials had contacted the family members of the
kidnapped boy on 15th April, 2003, no details were provided by them
regarding the alleged incident of kidnapping of Sachin Garg(PW-2)
on 2nd April, 2003 or that he was got released after paying ransom
to the tune of Rs. 1 crore. This manifest lacuna in the prosecution
story is another indication that the entire case is nothing but a cock
and bull story.
37. The decision of Investigating Officer(PW-37) in abruptly proceeding
to the Bharti Airtel Company, Mohali for verifying the mobile numbers
without even requiring Shamlal Garg to file a formal complaint
regarding the alleged incident of kidnapping and without recording
the statement of the kidnapped boy-Sachin Garg(PW-2), brings
the conduct of the Investigating Officer(PW-37) under a cloud of
doubt. Shamlal Garg’s statement should have put the Investigating
Officer(PW-37) on a high degree of alert and his first reaction and
lawful obligation would have been to immediately make enquiry
from the allegedly kidnapped boy Sachin Garg(PW-2). However,
the Investigating Officer(PW-37) delayed recording his statement
for almost five days.
38. The Investigating Officer(PW-37) stated that he again went to Kothi
No. 81-A, Panchkula on 20th April, 2003 and on that day, he recorded
the statements of Mahesh Garg(PW-1) and Sachin Garg(PW-2)
under Section 161 CrPC whereafter, offences punishable under
Sections 342, 364A, 392 and 506 IPC were added to the case.
This gross delay on part of the police officials in collecting tangible
evidence regarding the so-called kidnapping and release of Sachin
Garg(PW-2) after paying ransom amount is a grave indication of
unnatural conduct which has to be kept in mind while appreciating
the evidence of the star prosecution witness. In the later part of his
examination-in-chief, the Investigating Officer(PW-37) stated about
the further steps of investigation including the arrest of the accused,
recording of their disclosure statements, recovery of currency notes
and other incriminating articles in the sequence which have been
narrated supra at Para No.13 of this judgment.
39. In cross-examination, the Investigating Officer(PW-37) stated that
after the investigation of the case was entrusted to him, he went
to the house of Mahesh Garg(PW-1) on 15th April, 2003. A zimni
354 [2024] 7 S.C.R.
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was recorded in the case file to the effect that Jai Singh, SI(PW-27)
had visited the house of Mahesh Garg(PW-1) on 15th April 2003
at about 8:00 pm to make enquiry about the case from Mahesh
Garg(PW-1). Admittedly, the statement of Mahesh Garg(PW-1)
was never recorded by Jai Singh(PW-27) under Section 161 CrPC.
The Investigating Officer(PW-37) further stated that he reached
the house of Mahesh Garg(PW-1) at about 10:00 pm on the very
same day, the investigation of the case was assigned to him, but
Mahesh Garg(PW-1) was not available at that time. Shamlal Garg,
father of Mahesh Garg(PW-1) was found present and he made an
enquiry about the incident from him. However, the witness did not
record the statement of Shamlal Garg under Section 161 CrPC on
the premise that Shamlal Garg seemed to be apprehensive and
frightened because of old age. However, this seems to be nothing
but a lame excuse. The Investigating Officer(PW-37) stated that he
had recorded the statement of Shamlal Garg under Section 161 CrPC
at a later date. He recorded the statements of Sachin Garg(PW-2)
and Mahesh Garg(PW-1) on 20th April, 2003 at about 12:00 noon.
Mahesh Garg(PW-1), divulged the names of accused as Gaurav,
Sanjay, Munish @ Mintu and Gaurav Maini in his statement under
Section 161 CrPC. Subsequently, the Investigating Officer(PW-37)
resiled from this version and stated that names of the accused were
not disclosed by Mahesh Garg(PW-1), but rather the same were
stated by Sachin Garg(PW-2). The Investigating Officer(PW-37)
was confronted with the special report(Exhibit-PEEE) prepared by
the SHO of Police Station, Sector 5, Chandigarh under Section
173 CrPC wherein, neither the names of the accused nor the title
of the case were mentioned. The Investigating Officer explained
that in spite of the statements of Mahesh Garg(PW-1) and Sachin
Garg(PW-2), being available on the case file, he did not consider
it essential to mention the names of the accused in the special
report. This omission is again an indication of suspicious conduct of
the Investigating Officer(PW-37). The Investigating Officer(PW-37)
further admitted that on making enquiry from Niranjan Singla and
Reena Singla, he could not gather any information regarding the
identity of the person(s) to whom the SIM cards had been sold. The
Investigating Officer(PW-37) also admitted that the cash amount
recovered from the accused was not available in the Court. The
recovered currency notes were deposited with CIA staff, i.e. Male
[2024] 7 S.C.R. 355
Gaurav Maini v. The State of Haryana
Head Constable, Panchkula(hereinafter being referred to as ‘MHC’).
These currency notes were not in a sealed condition when they
were deposited. The currency notes recovered at the instance of the
accused were not produced before the Court as the same already
been taken on superdari by the Superdar. He did not remember the
name of the MHC. He also could not state whether the MHC had
been cited as a witness in the case. A pertinent suggestion was
given to the witness(PW-37) that he was deliberately concealing the
name of the MHC because amount recovered from Munish Bhalla
and Gaurav Bhalla was never deposited with him.
40. At this stage, it would be relevant to mention that the Investigating
Officer(PW-37) claimed that the recovered currency notes had been
handed over to the Superdar, but no order of the Court concerned
directing/permitting handing over of the currency notes to anyone
is available on record. Admittedly, the recovered currency notes
were neither sealed at the time of recovery nor did the prosecution
led any evidence to show that the currency notes allegedly seized
from the accused were ever deposited in the malkhana of the police
station. As a matter of fact, on going through the entire record and
the evidence of the material prosecution witnesses viz. Mahesh
Garg(PW-1) and the Investigating Officer(PW-37), we find that the
prosecution has not given any evidence whatsoever to explain the
fate of the currency notes allegedly recovered at the instance of the
accused other than the bald version of Investigating Officer(PW-37)
referred to above. No proceedings to prove the purported release of
the currency notes on superdari were brought on record.
41. Mahesh Garg(PW-1) in his examination-in-chief did not state that
he had received the recovered currency notes on superdari. Only
during cross-examination, did he admit that he had received back
an amount of Rs. 95,08,000/- from the Court but could not divulge
the date of such receipt.
42. Since the prosecution alleged demand of ransom amount of around
Rs. 1 crore and the recovery thereof from the accused without any
doubt, the recovered currency notes were in the nature of case
property/mudammal. The disposal of the case property could only
have been done by taking recourse to the procedure contained
under Sections 451, 452 and 457 CrPC as the case may be. The
Investigation Officer(PW-37) had no authority to release the currency
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notes without an order of the Court and his action to the contrary
tantamounts to grave misconduct. At Para 96 of its judgment, the
trial Court causally brushed aside the contention of the defence
counsel regarding the non-production of the case property(currency
notes) in the Court observing that the recovered currency notes
were released on superdari by the learned Magistrate. However,
in the same para, the trial Court went on to note that the currency
notes were never seen after the recovery and were not produced
in the Court when the prosecution witnesses were examined. The
fact remains that there is no indication in the judgment of the trial
Court or for that matter of the High Court regarding the date of the
order whereby, the currency notes were directed to be returned to
Mahesh Garg(PW-1). We further find that no order for final disposal
of the currency notes was passed by the trial Court under Section
452 CrPC which is a mandatory requirement. The sheer indifference
exhibited by the trial Court and the High Court to this extremely
important aspect of the case is shocking, to say the least. Therefore,
the entire process of recovery of the currency notes is clearly flawed,
marked by procedural errors and grave lacuna which goes to the
root of the matter. The trial Court and High Court fell in grave error
by not pulling up the prosecution for flagrant disregard of legal
procedures and failure to document key details which undermines
the prosecution’s case.
43. The defence has come up with a pertinent theory that Gaurav
Bhalla(A2) and Shivani @ Kaku, daughter of Mahesh Garg(PW-1) and
sister of Sachin Garg(PW-2) were involved in a love affair and that
Shivani had eloped from her house on 1st April, 2003. Immediately,
thereafter, the complainant took steps to get caller IDs installed on
the landline numbers operational in his house. In this regard the trial
Court recorded its findings at Para 95 of the judgment dated 26th
September, 2005 which are reproduced hereinbelow for the sake
of ready reference: -
“95. No doubt, the FIR in the present case was recorded
on 15.4.2003 on ruqa Ex. PAA sent by PW 27 Jai Singh
SI whereas the occurrence took place on 2.4.2003. Ex.
DD is a letter dated 9.4.2003 written by S.P. Panchkula
to the Spice Tele. Com. Mohali. Document Ex. DE is also
a copy of same letter dated 9.4.2003. Ex. DF is also a
letter dated 9.4.2003 written by S.P. Panchkula to Bharti
[2024] 7 S.C.R. 357
Gaurav Maini v. The State of Haryana
Mobile Ltd. Mohali. Letter Ex. DG is a letter written by
Surjit Kumar SI to the Commercial Officer. Telephone,
Panchkula for providing I.D. Caller facility on telephone
nos. 566403 and 572139. Even if it is presumed that
the above referred letters were issued by the police to
the Mobile companies and telephone department prior
to the lodging of FIR, even then the prosecution case
cannot be dislodged reason being that his delay in lodging
the FIR has been explained by the prosecution. It has
also been explained why the FIR was not got lodged
by the family members of Sachin Garg. PW 1 Mahesh
Kumar Garg father of Sachin Garg has stated that the
kidnappers after kidnapping his son gave threatening on
the telephone repeatedly that in case ransom amount is
not paid or police is informed, his son would be killed
and due to this reason, he did not report the matter to
the police. When a person under threat of life has paid
ransom for release of his kidnapped son and if he does
not report the matter to the police under constant fear of
his and his family life, if the FIR was lodged by the police
official, does not amount that it has created suspicion
in the present case but in such a case, role of agency
must be appreciated. It has also been proved in this
case that from the call details of mobile No. 9815475291
and 9815475360 that these were used for demanding
ransom amount and calls were given on telephone nos.
of Mahesh Garg 2562954 and Mobile no. 9817208181.
It has also proved form the record of Airtel Company
that three mobile sets bearing IMEI nos. 3501796266-
59830, 350019563917100 and 35060980768- 5060 were
used for these two SIM Cards. From the evidence of PW
33 Manish Kumar SI, it is established from the record
of Spice Communication Ltd. that other mobile Nos.
9814783373, 9814688843 and 9814735976 were also
registered on the above referred IMEI numbers and it
was found that the above referred mobile numbers were
pertaining to accused Gaurav Maini, Gaurav Bhalla and
accused Sanjay @Sanju respectively. When there is
cogent and convincing evidence of the prosecution on
record to prove the complicity of the accused persons
358 [2024] 7 S.C.R.
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in the commission of offence, then this delay in lodging
the FIR and letters Ex. DD. Ex. DE and Ex. DF reflecting
the date prior to the FIR do not create such doubt going
in favour of the accused but indicting the serious efforts
of the police agency to check the crime in the society.
Even the name of the accused has not been mentioned
in special report Ex. PEEE sent on 20.04.2003, does
not make any difference because this special report was
sent when offence under section 364-A IPC was added
and this was only the purpose for recording the special
report. In judgment Ravindra @ Ravi Bansi Gohan’s
case (Supra), it was held by the Apex Court that FIR
should not be on the basis of investigation but should
be outcome of investigation. In the present case, FIR
is not on the basis of investigation as it was only first
information report given by PW 27 Jai Singh ASI when
he was on patrolling duty and hence, this judgment does
not help the accused in any manner.”
44. We find that the aforesaid reasonings assigned by the trial Court
are absolutely fanciful and unconvincing. The trial Court held that
steps had been taken by the police to install Caller ID facilities on the
telephone numbers installed at the house of Mahesh Garg(PW-1) on
9th April, 2003 in order to check the crime. It is not in dispute that the
kidnapped boy had returned home on 3rd April, 2003 itself and thus,
there was no logical reason whatsoever for Mahesh Garg(PW-1) to
have initiated steps for installing Caller ID facilities on the landline
numbers thereafter.
45. The delay in lodging of the FIR was sought to be overlooked
by both the Courts with a bald observation that the complainant
party was under the fear of the threats given by the accused.
Indisputably, Sachin Garg had returned home on 3rd April, 2003.
Consequently, the complainant party could not be labouring under
the fear of threats allegedly given by the accused after the victim
had returned home.
46. The Investigating Officer(PW-37) stated that Mahesh Garg (PW-1)
was not present in the house on 15th April, 2003. However, it is not
the case of the prosecution that even Sachin Garg(PW-2) was not
present in the house when the Investigating Officer(PW-37) visited
[2024] 7 S.C.R. 359
Gaurav Maini v. The State of Haryana
Kothi No. 81-A and recorded the statement of Shamlal Garg. Hence,
a further doubt is created on the truthfulness of the prosecution
case on account of non-examination of Sachin Garg (PW-2) by
the police, on the date on which the incident of kidnapping came
into the knowledge of the police officials. Thus, the very core of
the prosecution case is shaken to its foundation on account of the
complainant party failing to inform the police about the incident, in
spite of ample opportunities.
47. Shamlal Garg, grandfather of the kidnapped boy-Sachin Garg(PW-2)
was the first person who came into contact of the police officials
on 15th April, 2003 and he admittedly disclosed about the incident
to Investigating Officer(PW-37). In that background, Shamlal Garg
would have been the most vital witness to unfurl the truth of the
matter. However, for the reasons best known to the prosecution,
Shamlal Garg was not examined as a witness in the case. As a
matter of fact, the trial Court should have remained vigilant and it was
absolutely essential for the Court to have exercised powers under
Section 311 CrPC so as to summon and examine Shamlal Garg in
evidence because his evidence was essential for a just decision of
the case. Section 165 of the Evidence Act permits the Judge to ask
any question as he pleases in any form, at any time, of any witness,
or of the parties about any fact relevant or irrelevant or may order
production of any document or thing.
48. A conjoint reading of Section 311 CrPC and Section 165 of the
Evidence Act makes it clear that the trial Court is under an obligation
not to act as a mere spectator and should proactively participate in
the trial proceedings, so as to ensure that neither any extraneous
material is permitted to be brought on record nor any relevant fact
is left out. It is the duty of the trial Court to ensure that all such
evidence which is essential for the just decision of the case is
brought on record irrespective of the fact that the party concerned
omits to do so.
49. This Court in the case of Pooja Pal v. Union of India and Others1
examined the ambit of powers of the Courts under Section 311 CrPC
read with Section 165 of the Evidence Act and held as below: -
1 [2016] 11 SCR 560 : (2016) 3 SCC 135
360 [2024] 7 S.C.R.
Digital Supreme Court Reports
“54. It was propounded in Zahira Habibulla case [Zahira
Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158]
that in a criminal case, the fate of the proceedings cannot
always be left entirely in the hands of the parties, crimes
being public wrongs in breach and violation of public rights
and duties, which affect the whole community and are
harmful to the society in general. That the concept of fair
trial entails the triangulation of the interest of the accused,
the victim, society and that the community acts through
the State and the prosecuting agency was authoritatively
stated. This Court observed that the interests of the
society are not to be treated completely with disdain and
as persona non grata. It was remarked as well that due
administration of justice is always viewed as a continuous
process, not confined to the determination of a particular
case so much so that a court must cease to be a mute
spectator and a mere recording machine but become a
participant in the trial evincing intelligence and active
interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth
and administer justice with fairness and impartiality
both to the parties and to the community.
57. It was underlined in Zahira Habibulla case [Zahira
Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158]
that if ultimately the truth is to be arrived at, the eyes and
ears of justice have to be protected so that the interest of
justice do not get incapacitated in the sense of making the
proceedings before the courts, mere mock trials. While
elucidating that a court ought to exercise its powers
under Section 311 of the Code and Section 165 of
the Evidence Act judicially and with circumspection,
it was held that such invocation ought to be only to
subserve the cause of justice and the public interest
by eliciting evidence in aid of a just decision and to
uphold the truth. It was proclaimed that though justice is
depicted to be blindfolded, it is only a veil not to see who
the party before it is, while pronouncing judgment on the
cause brought before it by enforcing the law and administer
justice and not to ignore or turn the attention away from
[2024] 7 S.C.R. 361
Gaurav Maini v. The State of Haryana
the truth of the cause or the lis before it, in disregard of its
duty to prevent miscarriage of justice. That any indifference,
inaction or lethargy displayed in protecting the right of an
ordinary citizen, more particularly when a grievance is
expressed against the mighty administration, would erode
the public faith in the judicial system was underlined. It was
highlighted that the courts exist to do justice to the persons
who are affected and therefore they cannot afford to get
swayed by the abstract technicalities and close their eyes to
the factors which need to be positively probed and noticed.
The following statement in Jennison v. Baker [Jennison v.
Baker, (1972) 2 QB 52 : (1972) 2 WLR 429 : (1972) 1 All
ER 997 (CA)] , was recalled : (QB p. 66)
“… ‘The law should not be seen to sit by limply,
while those who defy it go free, and those who
seek its protection lose hope.’””
(emphasis supplied)
50. We are fully satisfied that the trial Court failed to perform its lawful
obligation under Section 311 CrPC read with Section 165 of the
Evidence Act inasmuch as, the most vital witness whose deposition
was imperative for arriving at the truth of the matter i.e. Shamlal
Garg was not produced by the prosecution and the trial Court took
no steps whatsoever to summon him by exercising its powers under
Section 311 CrPC and Section 165 of the Evidence Act. The fact
that the FIR was not registered on the first disclosure of the incident
made by Shamlal Garg to Surjit Singh, Investigating Officer(PW-37)
and non-examination of the said witness at the trial is a fatal lacuna
which persuades this Court to draw an adverse inference against
the prosecution.
51. The trial Court as well as the High Court placed reliance upon the
call detail records, concluding that the suspected mobile numbers
were in use of Gaurav Maini(A1), Gaurav Bhalla(A2) and Sanjay @
Sanju(A4). However, the fact remains that no convincing evidence
was led by the prosecution to connect the accused persons with
the afore-mentioned mobile numbers. Furthermore, the prosecution
admittedly, did not prove the call detail records in accordance with
the mandate of Section 65B of the Evidence Act and hence, the call
detail records cannot be read in evidence. Reference in this regard
362 [2024] 7 S.C.R.
Digital Supreme Court Reports
may be made to the judgment of this Court in the case of Arjun
Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors.2
52. In wake of the discussion made hereinabove, we summarise our
conclusions as below: -
i. That the entire prosecution story is totally concocted and does
not inspire confidence.
ii. The FIR(Exhibit-PAA/1) could not have been registered on the
basis of the secret information received by Jai Singh, SI(PW-27)
because the said information did not disclose the commission of
any cognizable offence. If at all, the FIR had to be registered,
the same should have been done on the basis of the statement
of Shamlal Garg recorded by the police officials on 15th April,
2003. However, no such steps were taken by the police officials,
thereby, creating a grave doubt on the bona fides of the actions
of the Investigating Agency.
iii. That the complainant party failed to offer logical explanation
for failing to file an FIR even after the kidnapped boy-Sachin
Garg(PW-2) had returned home. It can safely be presumed
that once the kidnapped boy had returned home, the threat
perception at the hands of the offenders, if any, would have been
diluted/disappeared. The delay in taking legal action creates a
grave doubt on the truthfulness of the entire prosecution case.
iv. That the kidnapped boy-Sachin Garg(PW-2) knew accused
Gaurav Bhalla(A2) from before and claims to have identified
him at the time of the incident but in spite thereof, the name
of Gaurav Bhalla(A2) was not disclosed to the police officials
up to 20th April, 2003 which completely demolishes the
veracity of the prosecution case. The omission of the names
of the accused persons in the special report forwarded by
Investigating Officer(PW-37) to his superior officials is also vital
and creates further doubt on the conduct of the Investigating
Agency.
v. It is an admitted fact that the accused appellants other than
Gaurav Bhalla(A2) were not known to the kidnapped boy-
2 [2020] 7 SCR 180 : (2020) 3 SCC 216
[2024] 7 S.C.R. 363
Gaurav Maini v. The State of Haryana
Sachin Garg(PW-2) and they were identified by him for the first
time in the dock during deposition in the Court. This creates
a doubt on the dock identification of these accused by Sachin
Garg(PW-2) who also admitted in the cross-examination that
the accused persons were shown to him and his father by the
officers of the CIA. This admission lends further succour to the
conclusion that the identification of the accused by the witness
Sachin Garg(PW-2) is not free from doubt.
vi. That the prosecution case failed to led trustworthy evidence to
establish the recovery of the currency notes at the instance of
the accused because the disclosure statements were not proved
as per law. Furthermore, the currency notes were handed back
to Mahesh Garg(PW-1) without any order of the Court which
is an act of gross misconduct on the part of the Investigating
Officer(PW-37). Rather, this Court is compelled to observe that
perhaps the entire exercise of recording disclosure statements
and the recovery of the currency notes is totally sham and
that is why, the currency notes were neither deposited in the
malkhana of the police station/bank nor were the same produced
in the Court thereby, creating strong doubt on the very factum
of the recovery.
vii. That the prosecution failed to examine the most relevant witness,
namely, Shamlal Garg which compels the Court to draw an
adverse inference against the prosecution.
53. The High Court as well as the trial Court failed to advert to these
important loopholes and shortcomings in the evidence available
on record which are fatal and completely destroy the fabric of the
prosecution case.
54. As a consequence, this Court is of the firm opinion that entire story of
the prosecution is nothing but a piece of fabrication and the accused
were framed in the case for ulterior motive. There is no iota of truth
in the prosecution story what to talk of proof beyond all manner of
doubt which establishes the guilt of the accused. The fabric of the
prosecution case is full of holes which are impossible to mend. Thus,
conviction of the accused appellants as recorded by the trial Court
and affirmed by the High Court cannot be sustained. The impugned
judgments do not stand to scrutiny.
364 [2024] 7 S.C.R.
Digital Supreme Court Reports
55. Resultantly, the judgment dated 26th September, 2005 passed by the
trial Court and the judgment dated 19th January, 2009 passed by
the High Court are hereby quashed and set aside and the appeals
are accordingly allowed.
56. The appellants are acquitted of the charges. They are on bail and
need not surrender. Their bail bonds are discharged.
57. Pending application(s), if any, stand(s) disposed of.
Result of the case: Appeals allowed.
†
Headnotes prepared by: Nidhi Jain
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