PRADEEP KHANDELWAL vs STATE OF UTTARAKHAND

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(UK) 664

2011 (1) N.C.C. 464
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Prafulla C. Pant and Hon’ble Mrs. Nirmal Yadav
Criminal Appeal No. 74 of 2009 AND
Criminal Appeal No. 94 of 2009
PRADEEP KHANDELWAL – Appellant (in Jail)
Versus
STATE OF UTTARAKHAND – Respondent
2011 (1) N.C.C. 464
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Prafulla C. Pant and Hon’ble Mrs. Nirmal Yadav
Criminal Appeal No. 74 of 2009 AND
Criminal Appeal No. 94 of 2009
PRADEEP KHANDELWAL – Appellant (in Jail)
Versus
STATE OF UTTARAKHAND – Respondent
2011 (1) N.C.C. 464
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Prafulla C. Pant and Hon’ble Mrs. Nirmal Yadav
Criminal Appeal No. 74 of 2009 AND
Criminal Appeal No. 94 of 2009
PRADEEP KHANDELWAL – Appellant (in Jail)
Versus
STATE OF UTTARAKHAND – Respondent
Decided on : 28.09.2010
In Crl. Appeal No. 74 of 2009
In Crl. Appeal No. 94 of 2009
Decided on : 28.09.2010

Advocates:
For the Appellant :Mr. Abhay Kashyap, Advocate with Mr. Gajendra Tripathi, Advocate
For the Respondent: Mr. S.S. Adhikari, A.G.A. with Mr. B.S. Parihar, Brief Holder
For the Appellant :Mr. Rajesh Sharma, Advocate with Mr. Anil Kumar, Advocate
For the Respondent: Mr. S.S. Adhikari, A.G.A. with Mr. B.S. Parihar, Brief Holder

Headnote:(A) Murder Trial — Simple rivalry and enmity — As per the prosecution case, the accused and the deceased were real brothers — After partition of joint family business each of them was running his individual separate business — Though the relations of the two brothers were not cordial — No reason for the accused to get his brother murdered after amicable partition of family business — Also, FIR was scribed through the accused — Merely because a dispute had arisen on the issue of widening the shop of the accused — It could not be said that the accused would get murdered his brother. (Para 15)
       (B) Murder Trial — From much before the incident, the DON was extorting money from the businessmen, the accused and the deceased — Under such circumstances, when the deceased had not paid heed to the demands of the DON — He paid the price by losing his life and prosecution could not prove the case against the accused, beyond reasonable doubt. (Paras 22, 31)
       (C) Murder Trial — Evidence of tape recorded voice — Admissibility of — Principles of — Conversation of accused/appellant with DON subsequent to incident — As to the voice of accused/appellant the evidence adduced by prosecution cannot be doubted for the reason that when the accused/appellant was asked to give the voice sample he refused to give the same — The adverse inference in the circumstances can be drawn in the matter — As to the possibility of tempering with the taped conversation — In the circumstances, it cannot be paid that Digital Forensic Etiquette was not followed in the present case. (Para 24)
       ¼v½ gR;k dk dsl vkSj ml esa fopkj.k & lkekU; izfrLi/kkZ vkSj 'k=qrk & vfHk;kstu ds dsl ds vuqlkj & vfHk;qDr vkSj e`rd lxs HkkbZ Fks & la;qDr ifjokj ds O;kikj ds foHkktu ds ckn izR;sd viuk i`Fkd O;kikj pyk jgk Fkk & rFkkfi nksuksa Hkkb;ksa ds lEcU/k ikSf"Vd ugha Fks & ikfjokfjd O;kikj dk foHkktu vkilh jtkeanh ds ckn gks tkus ij ,slk dksbZ dkj.k ugha Fkk fd vfHk;qDr }kjk vius HkkbZ dh gR;k dj nh tk, & dsoy ek= vfHk;qDr dh nqdku dks pkSM+h djus dk ,d fookn t:j cuk Fkk ftlls ,slk ugha dgk tk ldrk Fkk fd vfHk;qDr vius HkkbZ dh gR;k dj nsxkA

        ¼izLrj 15½

       ¼c½ gR;k dk dsl vkSj ml ij fopkj.k & ?kVuk ls dkQh iwoZ 'DON' vfHk;qDr vkSj e`rd nksuksa ds O;kikj ls cyiwoZd /ku olwyk djrk Fkk & ,slh ifjfLFkfr;ksa esa tc e`rd }kjk bl dh vksj dksbZ /;ku ugha fn;k x;k Fkk vkSj 'DON' dh ekax iwjh ugha dh xbZ Fkh rks mlus viuk thou nsdj dher pqdkbZ vkSj vfHk;kstu i{k vfHk;qDr ds fo#) mfpr lansg ds ijs dsl dks fl) ugha dj ldk FkkA ¼izLrj 22] 31½

       ¼l½ gR;k ds dsl dh lquokbZ esa Vsi fjdkMZ dh /ofu dk lk{; miyC/k djk;k tkuk vkSj ml dh ekU;rk ds fl)kUr & ?kVuk ds ckn vfHk;qDr@vihykUV dk 'DON' ds lkFk laokn & vfHk;qDr@vihykFkhZ dh vkokt ds lEcU/k esa vfHk;kstu }kjk nk;j lk{; ij bl dkj.k ls lansg ugha fd;k tk ldrk fd tc vfHk;qDr@vihykUV dks /ofu dk uewuk nsus ds fy, dgk x;k rks mlus mls nsus ds fy, bUdkj dj fn;k Fkk & bu ifjfLFkfr;ksa esa foijhr fu"d"kZ bl ekeys esa fudkyk tk ldrk gS tks fd Vsi laokn ds lkFk feyus dh laHkkouk gks ldrh gS & bu ifjfLFkfr;ksa esa ;g ugha dgk tk ldrk fd izLrqr dsl esa ßfMftVy Qksjsafld ,fVDosVÞ ugha viuk;k x;k FkkA

        ¼izLrj 24½

JUDGMENT

[Per : Hon’ble Prafulla C. Pant, J. (Oral)]

Both these appeals are directed against judgment and order dated 20.04.2009, passed by Learned Sessions Judge, Nainital, in Special Sessions Trial No. 71 of 2006, and Special Sessions Trial No. 7 of 2007, whereby accused/appellant Pradeep Khandelwal has been convicted under section 302 read with section 120B of Indian Penal Code, 1860 (for short IPC) and acquitted from the charge of offence punishable under section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. Appellant Vakeel Ahmad @ Guddu has been convicted under section 302 read with section 120B IPC, (in alternative under section 302 read with section 34 IPC). He has further been convicted under section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986. Appellant Pradeep Khandelwal has been sentenced to imprisonment for life and directed to pay fine of Rs. 10,000/- under section 302/120B IPC. Appellant Vakeel Ahmad @ Guddu has also been sentenced to imprisonment for life and also directed to pay fine of Rs. 10,000/- under section 302/120B IPC, (in alternative under section 302/34 IPC). He (Vakeel Ahmad) has been further sentenced to rigorous imprisonment for a period of five years and also directed to pay fine of Rs. 5,000/- under Section 2/3 of U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986.

2. Heard learned counsel for the parties at length, and perused the lower court record.

Background

3. Prosecution Case: Prosecution case is that, accused/appellant Pradeep Khandelwal and his brother Pankaj Khandelwal (deceased), used to run their joint business in the name and style of ‘M/s Jai Guru Jewellers’ in Haldwani. From the income of said firm they also constructed a hotel in the name of ‘Jai Guru’. Pradeep Khandelwal (accused/appellant) is elder brother, and Pankaj Khandelwal (deceased) was his younger brother. In the year 2000, the aforesaid two brothers, to expand their business, started construction of ‘MONOLITH RESORT’ over the land earlier purchased by the two brothers and their wives. Prosecution case is that since the construction work of Monolith Resort started, the firm M/s. Jai Guru Jewellers started suffering loss. Due to this, differences arose between accused/appellant Pradeep Khandelwal and his younger brother Pankaj Khandelwal (deceased). In September 2000, Income Tax Department conducted a raid in the firm and the resort as a result of which, it is stated that the firm suffered further loss of Rs. 40,00,000/- (rupees forty lacs). Thereafter the differences widened and the two brothers by mutual settlement got partitioned their joint properties in the year 2002. Pankaj Khandelwal (deceased) got the firm M/s. Jai Guru Jewellers, and the elder brother Pradeep Khandelwal (accused/appellant) Monolith Resort, and land and some money for starting his own business. Accused/appellant No. 1 Pradeep Khandelwal adjoining to the shop of firm M/s. Jai Guru Jewelers, started his business after constructing a shop with name and style of “Shri Guru Jewellers”. According to prosecution, this further raised rivalry between the two brothers. A few days before the incident they had a quarrel with each other.

4. Second leg of the prosecution story is that a dreaded proclaimed criminal Prakash Pandey also known as ‘PP’ (based out side India allegedly in Vietnam), in an association with one Bhuppi, Rajesh and others used to run an organized gang to extort money from public, particularly businessmen. A red corner notice is said to have been issued against him but he continued his activities by making telephone calls to his associates Bhuppi, Satish Pandey and others, and also used to get murdered men on failing to take ransom. He (PP) started extracting money from accused/appellant Pradeep Khandelwal by making calls himself and through Bhuppi and thereby the two PP and accused/appellant Pradeep Khandelwal came in contact with each other.

Incident

5. On 24.01.2006, at abou

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2010 Supreme(UK) 664

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