Punjab-Haryana High Court
Narinder Singh vs State Of Punjab on 14 December, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 672-DB of 2008
DATE OF DECISION : 14.12.2010
Narinder Singh
.... APPELLANT
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 706-DB of 2008
DATE OF DECISION : 14.12.2010
Sanjiv Kumar alias Sheeh
.... APPELLANT
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 895-DB of 2008
DATE OF DECISION : 14.12.2010
Mohan Singh alias Mohna
.... APPELLANT
Versus
Stae of Punjab
..... RESPONDENT
Crl. A. No. 1137-DB of 2009
DATE OF DECISION : 14.12.2010
Satpal Singh alias Satta
.... APPELLANT
Versus
Stae of Punjab
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
Crl. A. No. 672-DB of 2008 -2-
Present: Mr. M.S. Lobana, Advocate,
for the appellant (in Crl. A. No.672-DB of 2008).
Mr. Harkeerat Singh, Advocate,
for the appellant (in Crl. A. No. 706-DB of 2008)
Mr. K.S. Kahlon, Advocate,
for the appellant (in Crl. A. No. 895-DB of 2008)
Mr. J.B.S. Gill, Advocate,
for the appellant (in Crl. A. No. 1137-DB of 2009)
Ms. Gurveen H. Singh, Addl. A.G., Punjab.
Mr. Kuldip Sanwal, Advocate,
for the complainant.
***
SATISH KUMAR MITTAL , J.
This judgment shall dispose of four appeals, i.e. Criminal Appeals No. 672-DB, 706-DB, 895-DB of 2008 and 1137-DB of 2009, filed by Narinder Singh, Sanjiv Kumar alias Sheeh, Mohan Singh alias Mohna and Satpal Singh alias Satta (hereinafter referred to as A-1, A-2, A-3 and A- 4 respectively). All the four appellants were tried by the court of learned Additional Sessions Judge, Hoshiarpur, under Sections 302 and 201 IPC for committing the murder of Raman Kumar son of Avinash Chander resident of Hariana, District Hoshiarpur, and for destroying the evidence of the commission of offence with intention to screen themselves from the legal punishment. Vide judgment and order dated 30.8.2009, the trial court has convicted all the appellants for the aforesaid offences and has sentenced them to undergo imprisonment for life and to pay a fine of ` 5,000/- each or in default of payment of fine to further undergo rigorous imprisonment for Crl. A. No. 672-DB of 2008 -3- two months each, under Section 302 IPC; and to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 2,000/- each or in default of payment of fine to further undergo rigorous imprisonment for one month each, under Section 201 IPC. Both the substantive sentences of imprisonment have been ordered to run concurrently.
The brief facts of the case are that Raman Kumar, the alleged deceased, was working as Laboratory Assistant in Goswami Ganesh Dutt Sanatan Dharam College, Hariana, District Hoshiarpur. On 5.6.1995, as usual, he went on his duty, but when he did not return back upto 6 PM, his brother Munish Kumar (PW.1) lodged a missing report vide DDR No. 29 dated 6.6.1995 with Police Station Hariana. Thereafter, on 8.6.1995 at 9.45 PM, Munish Kumar made statement (Ex.PB) to the police of Police Station Hariana, on the basis of which the formal FIR (Ex.PB/2) was registered under Section 364 IPC. In his statement, complainant Munish Kumar stated that on 5.6.1995, when his brother Raman Kumar did not return from his duty, his family enquired about the matter from the Principal of the College and also from his shop. They came to know that on 5.6.1995, Raman Kumar had taken off the shoes from Pinka Thakur, himself put on the same, gave his own Chappals to him (Pinka Thakur) and after parking his scooter bearing registration No. PB-07-9124 near Pinka Thakur, he (Raman Kumar) had gone some where by informing Pinka Thakur that he would return within 10 minutes. Munish Kumar further stated that on 6.6.1995 at about 2 PM, a telephone call was received at the STD Booth, which was attended by Crl. A. No. 672-DB of 2008 -4- the Telephone Operator, who was fully knowing Raman Kumar. The caller of the telephone call disclosed his identity as Raman Kumar and asked the Telephone Operator to inform his house that he would return back within one-two days. Then the Telephone Operator said that the caller was not Raman Kumar, because he recognises his voice, then the caller disconnected the telephone call. The complainant further stated that his brother had no enmity with any one. He did not suspect any person. However, he stated that some unknown persons have kidnapped his brother with intention to kill him.
After the registration of the aforesaid FIR, Raman Kumar was searched by the police. The case was investigated thoroughly. During investigation, it was revealed that Raman Kumar was seen with various persons at various places on 5.6.1995, 6.6.1995 and 16.6.1995. Ultimately, when whereabouts of Raman Kumar could not be traced, it was considered that he himself had left the house and the police submitted untraced report to the Court on 22.10.1996. After notice, the said report was accepted by the court on 16.2.2002.
After more than 11 years of the occurrence, on 9.11.2006, when Sub Inspector Balbir Singh (PW.7), SHO of Police Station Hariana, received a secret information that all the four appellants had kidnapped and murdered Raman Kumar and thereafter disposed of his dead body, the case was re-opened by the police, offences under Sections 302, 201 IPC were added in the FIR and re-investigation of the case was started. On Crl. A. No. 672-DB of 2008 -5- 10.11.2006, SI Balbir Singh sent requisition to A-1 and A-2, directing them to join the investigation, as they had been granted anticipatory bail. [As per the documents available on record, on an application filed by A-1 for grant of anticipatory bail on 11.10.2006, the police made statement (Ex.D13) that he was not wanted in any case relating to Police Station Hariana. In view of this statement, the anticipatory bail application was dismissed being infructuous, but it was ordered that if A-1 was to be arrested by the police of Police Station Hariana for disappearance of Raman Kumar, four days prior notice be given to him].
As per the prosecution version, on 16.11.2006, A-1 and A-2 joined the investigation. During interrogation, they confessed their guilt qua kidnapping and murder of Raman Kumar. They also disclosed the names of A-3 and A-4. Thereupon, A-1 and A-2 were arrested. On 17.11.2006, in the presence of SI Ram Sarup and HC Kuldeep Kumar, A-1 made disclosure statement (Ex.PE) to SI Balbir Singh to the effect that dead body of deceased Raman Kumar was kept concealed being buried underneath the bed of choe situated in the area of Hariana. On the same day, in the presence of the same witnesses, A-2 also made disclosure statement (Ex.PF) to the similar effect.
On 18.11.2006, A-4, who was in custody in some other case, was also arrested in this case. On 19.11.2006, in the presence of SI Ram Sarup and HC Kuldeep Kumar, he made similar disclosure statement (Ex.PG) regarding concealment of dead body of Raman Kumar. Thereafter, Crl. A. No. 672-DB of 2008 -6- the place where the dead body was allegedly buried was got identified from A-1, A-2 and A-4 and the identified place was dug up, but neither any dead body nor any skeleton or any piece of bone was found.
On 20.11.2006, A-3 was also arrested in this case. On the same day, he had also suffered disclosure statement (Ex.PH) to the same effect, in the presence of HC Sukhwinder Singh and PHG Amarjit Singh. It is the further case of the prosecution that on 20.11.2006, in the presence of SI Ram Sarup and HC Satwinder Singh, A-2 suffered another disclosure statement (Ex.PI) to the effect that he had kept concealed one gold ring (Ex.P1) of the deceased, on which letter "R" was embossed. In pursuance of the said disclosure statement, A-2 got recovered the aforesaid gold ring of the deceased from his house in the presence of complainant Munish Kumar and the aforesaid two witnesses, which was allegedly identified by complainant Munish Kumar to be belonging to his brother Raman Kumar. The same was taken into possession vide recovery memo Ex.PC.
On 25.11.2006, the police recorded the statement of one Balram Prashar (PW.5) to the effect that on 12.11.2006, he had over-heard the talk between A-1, A-2 and A-3 that the police had come to know about the offence and they will mis-lead the police by giving wrong identification of the place, where the dead body of Raman Kumar was buried. It is further case of the prosecution that again the police moved an application for production warrant of A-2 in order to get the identification of the exact place where the dead body was buried. On that application, on 1.12.2006, in Crl. A. No. 672-DB of 2008 -7- the presence of Naib Tehsildar Sukhdev Kumar and Dr. Jaswinder Singh, Forensic Expert, the new place was dug up, but again neither any dead body nor any skeleton or any piece of bone was recovered.
On 26.1.2007, the police recorded statement (Ex.DA) of Siri Ram Nambardar (PW.3), who stated that on 14.11.2006, when he was present in his house, A-1 and A-2, who were known to him, came to his house. Both of them made extra judicial confession before him that they along with A-3 and A-4 had kidnapped and murdered Raman Kumar and thereafter, the dead body was disposed of by them. They said that they have committed the blunder and the police was after them to arrest and involve them in that case. Since he (Siri Ram) had cordial relations with the family of Raman Kumar, therefore, he should take up the matter with the family.
On the basis of the aforesaid evidence, after completion of investigation, the challan was filed and charges under Sections 302 and 201 IPC were framed against the appellants, to which they did not plead guilty and claimed trial.
In support of its case, the prosecution examined seven witnesses, besides placing on record certain documents.
PW.1 Munish Kumar, who is the complainant in the case, has reiterated the entire version, as stated by him in the missing report lodged by him on 6.6.1995 as well as his statement (Ex.PB) made on 8.6.1995, which formed basis of the formal FIR Ex.PB/2.
PW.2 Ramji Dass, Draftsman, proved the scaled site plan Crl. A. No. 672-DB of 2008 -8- (Ex.PA) of the place of occurrence, which was prepared by him on 1.2.2007.
PW.3 Siri Ram, before whom the alleged extra judicial confession was made by A-1 and A-2, reiterated the version regarding the alleged extra judicial confession made before him by A-1 and A-2 on 14.11.2006 at about 7 AM, when he was present in his house. He further stated that he did not take up the matter with the family of Raman Kumar, as his conscious did not allow it.
PW.4 Govinder Kumar MHC is the formal witness, who stated that on 20.11.2006, the Investigating Officer of the case had deposited a duly sealed parcel containing ring (Ex.P1) with him, which was retained by him with seals intact till it was produced in the court in this case.
PW.5 Balram Prashar, who allegedly over-heard the talk between A-1, A-2 and A-3, stated that on 12.11.2006, near a lottery stall at a vacant place, he over-heard A-2 saying his co-accused that the police had got a clue in connection with the murder of Raman Kumar as well as about their involvement in his murder and that if any of them was intercepted by the police, he would provide false information with regard to the place of burial of dead body of Raman Kumar. He also deposed that A-2 further told his co-accused that he had already met A-4 when he had come to attend the court proceedings in some other case. This witness further stated that since he was standing at a dark place, he was not noticed by the accused and on the next day, he went out of station in connection with his job, from where Crl. A. No. 672-DB of 2008 -9- he returned on 24.11.2006 and on the next morning i.e. on 25.11.2006, he narrated the aforesaid facts to the police.
PW.6 Harbhajan Dass, Inspector (retired), stated that on 8.6.1995, he was posted as SHO, Police Station Hariana and on that day, he recorded the statement (Ex.PB) of the complainant, on the basis of which the formal FIR (Ex.PB/2) was registered. He also proved the rough site plan (Ex.PD) of the place of occurrence, prepared by him.
PW.7 SI Balbir Singh, the Investigating Officer of the case, supported the prosecution case and proved the arrest of all the four appellants, recovery of the gold ring and all the relevant documents, prepared by him.
In their statements under Section 313 Cr.P.C., all the accused denied the incriminating evidence appearing against them and pleaded their innocence and false implication in the case, mainly on the ground that earlier they had preferred writ petition in this Court against the police officials with regard to their illegal detention. A-1 further pleaded that on 6.9.2006, the police of Police Station Hariana started harassing him, regarding which on 8.9.2006, he filed a complaint to SSP, Hoshiarpur, due to which the police became inimical towards him. He further pleaded that he had filed an application for anticipatory bail, which was accepted by the court of learned Additional Sessions Judge, Hoshiarpur, on 11.10.2006, with a specific direction to the police of Police Station Hariana to give four days prior notice before his arrest. He further took the plea that on Crl. A. No. 672-DB of 2008 -10- 24.10.2006, when the police continued harassing him, the Municipal Commissioner and other respectable persons of Hariana town protested against the police in his favour. On 25.10.2006, a writ petition was filed, wherein on 27.10.2006, this Court issued notice of motion to the State and SSP, Hoshiarpur, for 8.12.2006, as a result of which on 15.11.2006, the police of Police Station Hariana picked him up, without giving him four days prior notice. Thereafter, on 16.11.2006, a telegram was sent to the Hon'ble Chief Justice of this Court as well as to the Director General of Police, Punjab, against the highhandedness of the police. A-1 further pleaded that he was mercilessly given beating and was tortured by the police of Police Station Hariana. On 17.11.2006, he was falsely implicated in this case. He further pleaded that since he was tortured by the police, therefore, to save their skin, on 17.11.2006, the police also planted another false case of attempt to suicide against him. From 15.11.2006 to 18.11.2006, for the injuries received by him during police torture, he was got treated by the police from the doctors. He was produced before the Judicial Magistrate Ist Class, Hoshiarpur, late in the evening on 17.11.2006, when no Advocate was available and no free legal aid was provided to him. In the remand application dated 18.11.2006, the police showed his arrest on 16.11.2006. On 20.11.2006, his relatives engaged an Advocate, who moved application before the Court to constitute a Board of Doctors for his medical examination, but on that day, the court could not pass order on that application. On22.11.2006, another application was moved for providing Crl. A. No. 672-DB of 2008 -11- him copy of the MLR and X-ray report of his injuries, but nothing was given to him. Ultimately, he moved application for inquiry of the case and a writ petition for quashing the above noted case against him, wherein this Court issued notice to the State. He further pleaded that he has been falsely implicated in this case after about 12 years of the occurrence, due to his animosity with the police on account of aforesaid applications and writ petitions etc. A-2, A-3 and A-4 did not examine any witness in their defence. However, A-1 examined seven witnesses to prove his defence.
DW.1 Noor Chand, Senior Telegraph Officer, Telegraph Office, Hoshiarpur, proved the telegrams dated 16.11.2006 Ex.D1 to Ex.D3 and the receipts Ex.D4 to Ex.D6.
DW.2 Balraj Kumar, Executive Clerk, SSP Office, Hoshiarpur, proved the report (Ex.D7) submitted by SHO, Police Station Hariana, to SSP, Hoshiarpur, on the complaint dated 13.7.1995.
DW.3 Pankaj, Ahlmad of the court of Judicial Magistrate IInd Class, Hoshiarpur, produced the file of case titled as State Vs. Narinder Singh, FIR No. 175 dated 16.11.2006 under Section 309 IPC, Police Station Hariana, and deposed that as per record, for the first time, A-1 was produced in the court of Ilaqa Magistrate on 17.11.2006 after showing the date of his arrest as 16.11.2006 and that neither any Advocate/counsel had appeared on his behalf nor any legal aid counsel was provided to him on 17.11.2006.
DW.4 Baldev Raj, DW.5 Satinder Kaur and DW.6 Baldev Crl. A. No. 672-DB of 2008 -12- Singh stated that on 15.11.2006, A-1 was picked up by the police of Police Station Hariana and when they as well as other respectable persons went to the Police Station, they were informed that A-1 would be let off. They further stated that they were again called to the Police Station on 16.11.2006 and at that time, A-1 was being tortured by the police. DW.5 Satinder Kaur has also proved the writing dated 24.10.2006 (Ex.D8) regarding innocence of A-1.
DW.7 Dr. Rakesh Kumar Saini stated that on 16.11.2006, the police of Police Station Hariana had brought A-1 in injured condition, who was treated by him at the instance of the police on 16.11.2006, 17.11.2006, 18.11.2006 and 19.11.2006. He was also taken by the police to Police Station Hariana for treatment of A-1. He proved consent form Ex.D20, copies of the entries made in his register (Ex.D21 to Ex.D24), prescription (Ex.D25) and bill of medicine (Ex.D26).
In addition to examining the aforesaid witnesses, A-1 tendered into evidence certified copies of petition under Section 482 Cr.P.C. (Ex.D9), order dated 27.10.2006 (Ex.D10), application for anticipatory bail dated 30.9.2006 (Ex.D11), order dated 11.10.2006 (Ex.D12), statement of ASI Sukhwinder Singh dated 11.10.2006 (Ex.D13), application dated 20.11.2006 (Ex.D16), order dated 27.11.2006 (Ex.D17), petition under Section 482 Cr.P.C., filed by A-1 (Ex.D18), application dated 8.9.2006 (Ex.D19), report under Section 173 (2) Cr.P.C. (Ex.D27) and list of witnesses (Ex.D28).
Crl. A. No. 672-DB of 2008 -13-
After considering the evidence on record, while relying upon the extra judicial confession made by A-1 and A-2 before PW.3 Siri Ram, the statement of PW.5 Balram Prashar, who allegedly over-heard the talk between A-1, A-2 and A-3 regarding the commission of alleged offence by them along with A-4 as well as the alleged recovery of golden ring of Raman Kumar at the instance of A-2, and while disbelieving the defence version of the appellants, the trial court convicted and sentenced all the appellants, as mentioned in the first para of the judgment.
Learned counsel for the appellants argued that it is a case of alleged blind murder as the dead body of the alleged deceased has not been recovered in this case. Only gold ring (Ex.P1) of the deceased is alleged to have been recovered at the instance of A-2. According to the learned counsel, the alleged recovery of the ring in pursuance of the alleged disclosure statement of A-2, after lapse of more than 11 years of the occurrence, is doubtful. The ring was alleged recovered from the house of A-2 in the presence of two police officials and the complainant. At that time, no independent witness was joined and no proper identification of the ring was got conducted by the police. Learned counsel further argued that PW.3 Siri Ram, before whom A-1 and A-2 allegedly made extra-judicial confession regarding the abduction and murder of Raman Kumar, is a made up witness. As per his statement, A-1 and A-2 made the alleged extra- judicial confession before him on 14.11.2006 at about 7 AM, but he made statement (Ex.DA) to this effect to the police on 26.1.2007. According to Crl. A. No. 672-DB of 2008 -14- the learned counsel, this delay of more than two months on the part of PW.3 Siri Ram to inform the police regarding the alleged extra-judicial confession is fatal to the prosecution case. Learned counsel further argued that the prosecution has miserably failed to lead any evidence with regard to the motive on the part of the appellants to abduct Raman Kumar, commit his murder and then to dispose of his dead body. The statement of PW.5 Balram Prasher, who allegedly had over-heard A-1, A-2 and A-3, while they were planning to disclose a wrong place of burial of dead body of Raman Kumar to the police, is also not reliable. According to this witness, he had over- heard the conversation between A-1, A-2 and A-3 on 12.11.2006, but he made statement to the police in this regard only on 25.11.2006 i.e. after about 13 days thereafter. His conduct of not disclosing this fact either to the police or to the family of Raman Kumar, particularly when Raman Kumar, the alleged deceased, was son of his maternal uncle, creates doubt in the prosecution version. Learned counsel further argued that the learned trial court has not properly appreciated the evidence, while ignoring the defence version of the appellants to the effect that they have been falsely implicated in this case, as they had preferred a writ petition in this Court against the police officials with regard to their illegal detention. A-1 further took the defence that he had filed a complaint to the SSP, Hoshiarpur, against the police officials, thereafter, on account of his harassment at the hands of the police, respectable persons of Hariana had raised protest against the police, due to which he was picked up by the police and after giving him merciless Crl. A. No. 672-DB of 2008 -15- beatings, he was implicated in this case as well as another case of attempt to suicide. According to the learned counsel, A-1 has duly proved the aforesaid defence by adducing oral as well as documentary evidence. In view of these submissions, learned counsel argued that the impugned judgment and order of the trial court is liable to be set aside and all the appellants are entitled to be acquitted of the charges framed against them.
On the other hand, learned counsel for the respondent-State argued that the extra judicial confession made by A-1 and A-2 before PW.3 Siri Ram and recovery of the gold ring of the deceased got effected by A-2 from his house, have been duly proved by the prosecution. She further argued that the statement of PW.5 Balram Prashar, who over-heard the talk between A-1, A-2 and A-3 regarding the commission of offence by them along with A-4 also proves the guilt of the appellants beyond reasonable doubt. She further submits that the learned trial court, while appreciating the evidence of the prosecution and disbelieving the defence version of the appellants, has rightly convicted and sentenced the appellants, therefore, there is no illegality or impropriety in the impugned judgment and order, passed by the trial court.
We have considered the submissions made by learned counsel for the parties and have gone through the impugned judgment as well as the trial court record.
In the present case, all the four appellants were tried for committing the murder of Raman Kumar and destroying the evidence of his Crl. A. No. 672-DB of 2008 -16- murder by burying his dead body. It is a case of blind murder. Even dead body of the deceased has not been recovered. The case of the prosecution is entirely based upon some circumstantial evidence led by it. As per the prosecution version, Raman Kumar (deceased) was working as Laboratory Assistant in Goswami Ganesh Dutt Sanatan Dharam College, Hariana. He went missing on 5.6.1995. According to his brother Munish Kumar (PW.1), on the basis of whose statement (Ex.PB) on 8.6.1995 the formal FIR (Ex.PB/2) was registered by the police, on 5.6.1995, Raman Kumar went to Pinka Thakur, and after taking off shoes from said Pinka Thakur, he himself put on the same, gave his own Chappals to him and after parking his scooter, he went some where by telling Pinka Thakur that he would return within 10 minutes. Thereafter, he did not return. Munish Kumar further stated that on the next day at about 2 PM, at the STD Booth, situated opposite the shop of Raman Kumar, a telephone call was received, which was attended by the Telephone Operator, known as Fauji. The caller of the telephone call, disclosing his name as Raman Kumar, asked the Telephone Operator to inform at his house that he would return within one/two days, but when the Telephone Operator contradicted him that he is not Raman Kumar, because he recognises his voice, then the caller disconnected the telephone call. In the aforesaid FIR, investigation was conducted and Raman Kumar was thoroughly searched. During investigation, it was revealed that he was seen with various persons at various places, but his whereabouts could not be traced. Thereupon, an un-traced report was Crl. A. No. 672-DB of 2008 -17- submitted by the police on 22.10.1996, which was accepted by the court on 16.2.2002.
After more than 11 years of the occurrence, the case was re- opened by Sub Inspector Balbir Singh (PW.7) on the pretext that he had received a secret information that all the four appellants had kidnapped and murdered Raman Kumar and thereafter disposed of his dead body. According to Sub Inspector Balbir Singh, he received the aforesaid secret information on 9.11.2006, but while appearing as a witness in the case, he did not disclose as to who had given the said information to him. However, it has come on record (in the evidence led by the appellants) that on 11.10.2006, i.e. about one month earlier to the receiving of alleged secret information, A-1 apprehending his arrest in the aforesaid FIR regarding dis- appearance of Raman Kumar, applied for the grant of anticipatory bail before the court of Sessions. In that application, the police of Police Station Hariana made a statement that A-1 was not required in any case. This fact indicates that the police wanted to proceed against the appellants on the basis of some suspicion.
As per the prosecution case, A-1 and A-2 joined the investigation on 16.11.2006 and during interrogation, they confessed their guilt qua kidnapping and murder of Raman Kumar. They also disclosed that A-3 and A-4 were also involved in the crime. Thereupon, A-1 and A-2 were arrested on the same day. A-4 was arrested on 18.11.2006. Further, as per the prosecution case, these three appellants made separate disclosure Crl. A. No. 672-DB of 2008 -18- statements regarding concealment of the dead body of Raman Kumar. Thereupon, the place where the dead body was allegedly buried was got identified from them. The identified place was dug up, but neither any dead body nor any skeleton or piece of bone was found. Thus, on the basis of their disclosure statements, nothing incriminating was recovered, which can be taken as evidence under Section 27 of the Indian Evidence Act, 1872. Subsequently, on 20.11.2006, A-3 was arrested. He is also alleged to have suffered disclosure statement (Ex.PH) to the same effect, but nothing was recovered on the basis of the said disclosure statement also. On the same day, A-2, who had earlier made a disclosure statement (Ex.PF), allegedly made second disclosure statement (Ex.PI) with regard to the concealment of one gold ring of the deceased, on which letter "R" was embossed. In pursuance of that disclosure statement, he got recovered the aforesaid ring (Ex.P1) from his house, which according to the prosecution was identified by complainant Munish Kumar as belonging to his brother Raman Kumar. This is one of the evidence, which is being heavily relied upon by the prosecution against the appellants. Subsequently, the police recorded the statement of one Balram Prashar (PW.5), who allegedly over-heard the talk between A-1, A-2 and A-3 on 12.11.2006 with regard to giving mis-leading information to the police about the place of burial of the dead body of Raman Kumar. This is the second piece of evidence, which has been relied upon by the prosecution. The third piece of circumstantial evidence, relied upon by the prosecution, is the testimony of Siri Ram (PW.3), before whom Crl. A. No. 672-DB of 2008 -19- A-1 and A-2 are alleged to have made extra judicial confession with regard to kidnapping and murder of Raman Kumar by them along with A-3 and A-
4. The prosecution, however, did not allege any specific motive of the appellants for committing the alleged murder. Moreover, Pinka Thakur, whose shoes were said to be taken by Raman Kumar (deceased) by giving his own Chappals to him, while telling him that he would return within 10 minutes, has not been examined by the prosecution. Similarly, the Telephone Operator, known as Fauji, who is alleged to have received a telephone call at his STD Booth, has also not appeared in the witness box. Both these witnesses are the material witnesses. While relying upon the aforesaid three types of circumstantial evidence, the trial court has convicted the appellants.
Now the question arising for consideration is whether these pieces of circumstantial evidence are sufficient to bring home the guilt to the appellants beyond reasonable doubt.
First of all, in the present case, no evidence regarding death of Raman Kumar or recovery of his dead body has been collected or proved by the prosecution. Raman Kumar is said to have been missing since 5.6.1995. He may be presumed to be dead, being not heard of for more than 7 years, but it cannot be presumed that he has been murdered. Even otherwise, during the earlier police investigation, it was found that he was seen with various persons at various places on different dates and thereupon, the un- traced report was submitted by the police, which was accepted by the court. Crl. A. No. 672-DB of 2008 -20- The prosecution has not placed on record the previous investigation report. There are only confessional statements of A-1, A-2 and A-4 to the effect that they had kidnapped and murdered Raman Kumar, but the same are not admissible. On the basis of the confessional statements, the place where the dead body was allegedly buried was got identified from A-1, A-2 and A-4 and on digging up the identified place, neither any dead body nor any skeleton or piece of bone was found. After recording the statement of Balram Prashar (PW.5) on 25.11.2006 with regard to over-hearing the talk between A-1, A-2 and A-3, in the presence of Naib Tehsildar Sukhdev Kumar and Dr. Jaswinder Singh, Forensic Expert, the police again got identified from A-2 the exact place where the alleged dead body was buried, but again neither any dead body nor any skeleton or piece of bone was recovered. Thus the actual death (murder) of Raman Kumar has not been proved. Therefore, the case of the prosecution regarding the alleged kidnapping and murder of Raman Kumar by the appellants is highly doubtful.
The first type of circumstantial evidence, which the prosecution is heavily relying upon, is the recovery of gold ring (Ex.P1), alleged to be belonging to Raman Kumar, vide recovery memo Ex.PC, at the instance of A-2. This piece of evidence led by the prosecution does not inspire any confidence for various reasons. Firstly, in the initial missing report vide DDR No. 29 dated 6.6.1995, lodged by Munish Kumar, and in the FIR (Ex.PB/2) got registered on 8.6.1995, no reference was made that Raman Crl. A. No. 672-DB of 2008 -21- Kumar was wearing a gold ring, on which letter "R" was embossed. Secondly, when A-2 suffered first disclosure statement (Ex.PF) on 17.11.2006, he did not mention any thing about the said ring, but subsequently on 20.11.2006, the police recorded his another disclosure statement (Ex.PI) to the effect that he had kept concealed one gold ring of the alleged deceased, on which letter "R" was embossed and in pursuance of the said statement, ring (Ex.P1) was got recovered by A-2 from his house. Recovery of the aforesaid ring was effected in the presence of complainant Munish Kumar, SI Ram Sarup and HC Satwinder Singh, but only Munish Kumar has been examined. Thirdly, identification of the ring was not got conducted in the Police Station by mixing the recovered ring with other identical rings. Fourthly, Sub Inspector Balbir Singh, while appearing in the court as PW.7, has specifically stated that identification of the ring was not conducted from the Judicial Magistrate, Executive Magistrate or any other official. Fifthly, in spite of the fact that house of A-2 was located in a residential area, at the time of the alleged recovery, no independent witness was joined by the police party. Sixthly, such recovery after 11 years of the occurrence, does not give any presumption under clause (a) of Section 114 of the Indian Evidence Act, 1872, against the accused. Thus, the alleged recovery of the ring has not been proved and possibility of planting this recovery in the instant case cannot be ruled out.
The second piece of circumstantial evidence, which the prosecution is relying upon, is the evidence of over-heard, i.e. the statement Crl. A. No. 672-DB of 2008 -22- of Balram Prashar (PW.5), who stated that on 12.11.2006, near a lottery stall at a vacant place, he over-heard A-2 saying A-1 and A-3 that the police had got a clue in connection with the murder of Raman Kumar as well as about their involvement in his murder and if any of them was intercepted by the police, he would provide false information with regard to the place of burial of dead body of Raman Kumar. Statement of this witness under Section 161 Cr.P.C., was recorded by the police on 25.11.2006, i.e. after 13 days of the alleged over-hearing. This witness is related to the deceased, who is son of his the maternal uncle. In his statement in the court, this witness has explained that after over-hearing the talk between A-1, A-2 and A-3, he went to other station in connection with his job, from where he returned to the village on 24.11.2006 and on the next morning, he narrated the facts to the police. It has come in evidence that the house of this witness is at a distance of 1 ½ Kilometers from the house of the alleged deceased. This witness has admitted that initially, when the FIR was registered in the year 1995, he was taking keen interest in the investigation, as he had been visiting time and again to enquire about the fate of the FIR. It does not stand to reason as to why this witness, who is a close relative of the alleged deceased and was taking great interest in the investigation of the case, did not immediately inform either to the police or to the family members of the alleged deceased regarding the talk between A-1, A-2 and A-3, being over- heard by him on 12.11.2006 and why he remained silent for 13 days. The explanation given by this witness that he had gone out of station in Crl. A. No. 672-DB of 2008 -23- connection with his job is not convincing and appears to be after-thought. Moreover, statement of this witness was recorded by the police after the arrest of all the four appellants. Thus, the recording of such statement by the police after the arrest of the accused, has no evidentiary value and on the basis of such statement, an accused can not be convicted for the offence of kidnapping and murder. Therefore, in our opinion, testimony of this witness does not inspire any confidence.
The third piece of circumstantial evidence, being relied upon by the prosecution, is the evidence of extra-judicial confession, made by A-1 and A-2 before Siri Ram (PW.3). The said confession was allegedly made by these two appellants to Siri Ram on 14.11.2006 in his house, according to which they confessed that they had taken Raman Kumar towards Dakhi Road and murdered him there and thereafter, destroyed his dead body. This confession was joint. In this regard, the statement of Siri Ram was recorded by the police on 26.1.2007, i.e. after more than two months of the alleged extra-judicial confession and much after the arrest of the appellants. In his examination-in-chief, this witness has stated that he had narrated the entire story to the police in the evening on 14.11.2006 and in that regard, his statement was recorded by the police, but as per the statement of SI Balbir Singh (PW.7), the Investigating Officer of the case, statement of this witness under Section 161 Cr.P.C., was recorded on 26.1.2007. In his cross- examination, this witness has also admitted that his statement (Ex.DA) was recorded by the police on 26.1.2007. Further, this witness has stated that Crl. A. No. 672-DB of 2008 -24- since his conscious did not allow him, therefore, on 14.11.2006 itself, he did not inform about the said extra-judicial confession either to the police or to any member of the family of alleged deceased. Further, it is also admitted position that this witness did not produce any of the appellants before the police. Thus, the conduct of this witness and his contradictory stand create doubt regarding making of any extra-judicial confession by A-1 and A-2 before him. It appears that he is a made-up witness and the testimony of such a witness does not inspire any confidence. Even otherwise, it is well settled that evidence of extra-judicial confession is a weak type of evidence. It is mandatory for the prosecution to prove that an extra judicial confession is voluntary, truthful, reliable and beyond reproach. In the present case, when the appellants were not required in the case, as was stated by the police at the time of hearing of the anticipatory bail application moved by A-1, and it was ordered by the court that if A-1 was to be arrested by the police for disappearance of Raman Kumar, four days prior notice be given to him, then there was no occasion and reason from him to make extra judicial confession. Since the extra-judicial confession by its very nature is a weak type of evidence, therefore, while appreciating such evidence, a great care and caution is required to be taken by the court. If the extra- judicial confession is surrounded by suspicious circumstances, then its credibility becomes doubtful and it looses its importance. In the present case, the testimony and conduct of Siri Ram (PW.3), before whom the alleged extra judicial confession was made by A-1 and A-2, and recording Crl. A. No. 672-DB of 2008 -25- of his statement by the police after more than two months of the alleged extra judicial confession, create doubt regarding his credibility.
In a case of direct evidence, motive may not be relevant, but in a case based upon circumstantial evidence, motive of the alleged crime assumes great significance. In this case, no motive is alleged or proved, which itself is fatal to the prosecution case.
In order to prove their defence, the appellants have led oral as well as documentary evidence, but without going into the issue whether their stand is correct or not, we are of the opinion that the prosecution version itself is doubtful, as the circumstantial evidence led by it has not established the guilt of the appellants beyond reasonable doubt.
From the above analysis and appreciation of the prosecution evidence, it emerges that case of the prosecution is based on suspicion and not on legal evidence. It is well settled principle of criminal jurisprudence that a person cannot be convicted on the basis of suspicion, howsoever strong it may be. Where there is no direct evidence, conviction can be based on circumstantial evidence, if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. In Hanumant Govind Nargundkar and another v. State of Madhya Pradesh, AIR 1952 Supreme Court 343, the Hon'ble Supreme Court has observed that "in such cases the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with Crl. A. No. 672-DB of 2008 -26- the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
In the present case, if the evidence relied upon by the prosecution is analysed in view of the aforesaid principle, then in our view, the evidence led by the prosecution is not reliable, sufficient and conclusive to reach to the conclusion which is consistent with the innocence of the appellants and with the hypothesis of their guilt. Thus, in our view, the trial court was not justified in convicting the appellants.
For the reasons recorded above, all these four appeals are allowed. The impugned judgment of conviction and the order of sentence is set aside and the appellants, namely Narinder Singh, Sanjiv Kumar alias Sheeh, Mohan Singh alias Mohna and Satpal Singh alias Satta, are acquitted of the charges. Appellants Narinder Singh and Mohan Singh alias Mohna are on bail. However, appellants Sanjiv Kumar alias Sheeh and Satpal Singh alias Satta are in custody. They be set at liberty forthwith, if not required in any other case.
( SATISH KUMAR MITTAL )
JUDGE
December 14, 2010 ( JORA SINGH )
ndj JUDGE