# Gaurav Maini v. The State of Haryana

- **Citation:** 2024 INSC 488
- **Court:** Supreme Court of India
- **Decided:** 2024-07-09
- **Case number:** Criminal Appeal No. 696 of 2010
- **Bench:** B.R. Gavai, Sandeep Mehta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gaurav-maini-v-the-state-of-haryana-37904
- **Pages:** 32

## Headnote

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
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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, 45

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[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
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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.
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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]
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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
which convicted
Sentence
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
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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 15th 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.
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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
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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.
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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
Accused
Recovered Articles
Gaurav
Maini
(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.
(v)
One mobile phone marked Digital worth Rs.
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
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Gaurav
Bhalla
(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.
(iii) A mobile phone worth Rs. 27,000/-
(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
Munish
Bhalla
(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.
HR01E-4113 (Bullet) worth Rs. 35,000/-
(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.
Sanjay @
Sanju
(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.
(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.
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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.
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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)
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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
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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.
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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
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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,
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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.