Punjab-Haryana High Court
The State Of Haryana .... Prosecutor vs . on 23 January, 2009
Author: Mehtab Singh Gill
Bench: Mehtab Singh Gill
Murder Reference No. 6 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : Murder Reference No. 6 of 2008
Date of Decision : January 23, 2009
The State of Haryana .... Prosecutor
Vs.
Anand Kindo and another .... Respondents
CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL
HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Kulvir Narwal, Addl.A.G, Haryana
for the prosecutor-State.
Ms. Tanu Bedi, Advocate
for the respondent-convicts.
Mr. Ashwani Talwar, Advocate
for the complainant.
* * *
L. N. MITTAL, J. :
By this common judgment, we are disposing of Murder Reference No. 6 of 2008 made by learned Additional Sessions Judge, Panchkula for confirmation of death sentence awarded to accused Anand Kindo and Rajan Gaur, both residents of District New Jalpaiguri in West Bengal, Crl. Appeal No. 413-DB of 2008 preferred by the said two convicts against their conviction and sentence; and also Crl. Appeal No. 1237-SB of Murder Reference No. 6 of 2008 2 2008 preferred by Sandhya @ Sangeeta, wife of Anand Kindo, against her conviction and sentence as all these cases have arisen out of same judgment of conviction dated 12.06.2008 and order of sentence dated 13.06.2008 passed by learned Additional Sessions Judge, Panchkula. Vide impugned judgment and order, accused Anand Kindo and Rajan Gaur have been awarded death sentence and fine of Rs.50,000/- each and in default of payment thereof, to undergo rigorous imprisonment for four years for offence under Section 302/34 of the Indian Penal Code (in short - IPC); also to undergo rigorous imprisonment for eight years and to pay fine of Rs.30,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for two years for offence under Section 392 IPC and also to undergo imprisonment for five years and to pay fine of Rs.10,000/- each and in default of payment of fine, further rigorous imprisonment for six months for offence under Section 201 IPC. All these substantive sentences of imprisonment have been ordered to run concurrently. Appellant Sandhya @ Sangeeta has been convicted and sentenced to suffer imprisonment for five years and to pay fine of Rs.10,000/- and in default of payment thereof, to undergo further rigorous imprisonment for six months for offence under Section 201 IPC.
One Ajit Khaba of District Darjeeling in West Bengal was also named as accused, but he could not be arrested and was declared Proclaimed Offender (PO).
Prosecution case in brief may be narrated as under :-
On 15.05.2007, UGC Ram Kumar while posted as driver of ambulance in Police Post Sector 25, Panchkula, under Police Station Chandi Mandir, was present along with his colleagues in market of Sector 25, Panchkula at about 05:30 P.M., when ASI Ram Niwas of Police Station Sector 19, Chandigarh along with other police officials, met them and told that one car bearing licensed plate No. TN-04-E-7020 hit into a pole in the Murder Reference No. 6 of 2008 3 area of Police Station Sector 19, Chandigarh on 13.05.2007. Driver of the said car fled away, but his two companions sitting in the car were caught by the public. On inquiry, they disclosed their names and addresses i.e. Ajit Khaba (since PO) and Rajan Gaur, one of the two condemned prisoners. Name of the driver of the car was found to be Anand Kindo, the other condemned prisoner. The accidented car had been taken to Police Station Sector 19, Chandigarh on 13.05.2007 itself. However, neither owner nor driver thereof turned up to claim the said car. On checking of car, address of House No.1, Sector 25, Panchkula came to be known and therefore, ASI Ram Niwas went to Panchkula on 15.05.2007. Thereafter, ASI Ram Niwas, with his companions and UGC Ram Kumar went to House No.1, Sector 25, Panchkula. However, nobody responded to their call. On reaching near the staircase, they felt very foul smell being emitted from the house and it appeared that some decomposed dead body was lying inside the house. Chandigarh police went back. UGC Ram Kumar intimated SI Narinder Singh, Station House Officer of Police Station Chandi Mandir, who along with other police officials, reached the spot. UGC Ram Kumar made statement Ex. P-A to SI Narinder Singh. On opening the door of the house, articles were found lying scattered on the floor. On reaching bedroom on first floor, dead bodies of a male and a female soaked in blood were found lying on the bed. The deceased were retired Major General Kailash Chand Dhingra (K. C. Dhingra) and his wife Sangeeta Dhingra. The aforesaid car was owned by Kailash Chand Dhingra (since deceased). It was found that Rajan Gaur, Anand Kindo and Ajit Khaba murdered the couple and committed robbery and took away stolen articles with car. Narinder Singh made endorsement Ex.P-A/III on statement Ex.P-A and sent it to Police Station Chandi Mandir, where on its basis, FIR Ex.P-A/I under Sections 460/34 IPC was recorded. SI Narinder Singh inspected the spot and prepared rough site plan Ex.P-R and conducted inquest proceedings on the Murder Reference No. 6 of 2008 4 dead bodies and prepared inquest report Ex.P-S. The dead bodies were removed to Civil Hospital for post-mortem examination along with request Ex.P-K/II. However, the dead bodies were taken to PGIMS Rohtak, where Dr.Vijay Pal Khanagwal and Dr.Luv Kumar Sharma, Associate Professors, Department of Forensic Medicine, conducted post-mortem examination on the dead bodies of K. C. Dhingra and Sangeeta Dhingra respectively and found injuries on the dead bodies. Some organs were decomposed. Cause of death in the case of K. C. Dhingra was opined to be head injury, which was ante-mortem, homicidal and caused by hard and blunt objects and the injuries were sufficient to cause death in ordinary course of nature. In case of Sangeeta Dhingra, cause of death was opined to be head injuries described in the post-mortem report, which were ante-mortem, homicidal and caused by hard and blunt object and the injuries were sufficient to cause death in ordinary course of nature. Viscera of both the deceased was sent for analysis, but as per report of Forensic Science Laboratory (FSL), no common poison was detected in the viscera. Articles of the deceased in sealed parcels handed over by doctors were seized vide memo Ex.P-B. Place of occurrence was got photographed by SI Narinder Singh. Scene of Crime Team also came to the spot besides Finger Prints Experts and Dog Squad. Blood stains were also lifted from the spot in the presence of Lt. Col. Amit Dhingra, son of the deceased. Some other articles were also seized from the spot.
One police team went to South and another to West Bengal to search the culprits. Head Constable Jagdish Chander and Constable Rajbir received secret information that Anand Kindo and Rajan Gaur would board train Karnataka Express from Ahmednagar in Maharashtra. Accordingly, on 03.06.2007, they reached Ahmednagar on Railway Station platform. They searched Karnataka Express train for Anand Kindo and Rajan Gaur and on reaching near Coach S-13, they saw two young boys standing near Murder Reference No. 6 of 2008 5 the window. Their appearance tallied with the sketches which were with the police party. The police party tried to catch them but they jumped from the running train. The police party stopped the train and chased them and informed the Control Room. Message was received from Ahmednagar Control Room later on that both the suspects Anand Kindo and Rajan Gaur had been apprehended. Head Constable Jagdish Chander and Constable Rajbir went to Police Station Kotwali, Ahmednagar and met Inspector Tuka Ram Vahile, Station House Officer of the Police Station, who was informed about the case. Report was recorded in daily diary. Both these accused were arrested. On 04.06.2007, SI Rajinder Singh from Police Station Chandi Mandir along with Escort Party, reached Police Station Ahmednagar and took custody of both the accused from Inspector Tuka Ram Vahile vide memo Ex.P-O. Both these accused were produced before Illaqa Magistrate, Ahmednagar, who gave transit remand till 10.06.2007. The accused were brought to Panchkula and produced before Illaqa Magistrate, Panchkula on 06.06.2007. On 09.06.2007, Anand Kindo and Rajan Gaur, after making disclosure statements, got recovered a tawa (cooking plate) and a hammer respectively, which were allegedly used as weapons of offence. Doctors gave opinion that injuries on deceased could be caused with the same.
These two accused, after making disclosure statements, also got recovered stolen articles including cash, jewellery, clothes, laptop etc., which were identified by Sumit Dhingra, son of the deceased, to be stolen property of the deceased. Accused Sandhya had allegedly helped the other accused in packing the stolen articles. She was also arrested on 13.06.2007.
On completion of investigation, the three accused were sent for trial.
Charge under Sections 120-B, 460, 302/34 and 201 IPC was framed against the accused. They pleaded not guilty and claimed trial.
In support of its case, the prosecution examined 23 witnesses.
Murder Reference No. 6 of 2008 6ASI Ram Kumar (previously UGC Ram Kumar) (PW-1) stated that he made statement Ex.P-A to SI Narinder Singh and also deposed about the facts mentioned in the said statement. ASI Ishwar Singh (PW-2) stated that he recorded formal FIR in the case and sent its special report. On 16.05.2007, he had also taken the dead bodies to PGIMS Rohtak and after post mortem examination conducted there on 17.05.2007, sealed parcels handed over by the doctors were given to SHO vide memo Ex.P-B. On 11.07.2007, the witness had also deposited the case property with FSL without any tampering. Sandeep Walia (PW-3) is brother of Sangeeta Dhingra-deceased. He identified the bodies of both the deceased. He along with Deepak Kumar received the dead bodies on 17.05.2007 vide receipt Ex.P-C. EHC Harbans Lal (PW-4) had taken the special report. He has stated that he delivered the special report to Illaqa Magistrate and police officers. EHC Rajesh Kumar (PW-5) stated that he had taken photographs of the place of occurrence. Amit Dhingra (PW-6) is son of the deceased. He was at Mhow in Madhya Pradesh and on receiving information, reached Panchkula on 16.05.2007. There was blood in the bedroom. The same was lifted by ASP Manish Chaudhary vide memo Ex.P-D. Constable Jagsir Singh (PW-7) stated that he prepared scaled site plan Ex.P-E after inspecting the spot. ASP Manish Chaudhary (PW-8) partly investigated the case. He stated about FSL team, Scene of Crime Team and Dog Squad. He also got the scene of crime photographed. He also lifted blood from the spot and also seized some other articles. Inspector Tuka Ram Vahile (PW-9) stated that on 03.06.2007, two officials of his Police Station Ahmednagar, on receiving information from Control Room, apprehended the suspects Anand Kindo and Rajan Gaur near Railway Station. They were brought to Police Station and arrested vide arrest memos Ex.P-F and Ex.P- F/1. Report in Daily Diary was also recorded. Meanwhile, Head Constable Jagdish Chander and Constable Rajbir reached there. They identified both Murder Reference No. 6 of 2008 7 the accused being `WANTED' in the instant case. Next day i.e. on 04.06.2007, SI Rajinder Singh took both the accused on transit remand. Reports were recorded in Daily Diary. Sumit Dhingra (PW-10), another son of the deceased, has stated that his parents were residing in rented accommodation in House No.1, Sector 25, Panchkula. On receiving intimation on 15.05.2007, he came from USA and reached Delhi on 17.05.2007. He stated that on 09.06.2007, accused Anand Kindo and Rajan Gaur made disclosure statements and got recovered weapons of offence and stolen articles, which were identified by the witness to be the stolen articles of his parents. Car was also taken into possession from Police Station, Sector 19, Chandigarh. It was Maruti Esteem car of the deceased. Some articles found in the car i.e. two cell phones, job-card and bill of service of the car, head of CD player and some file folders were seized vide memo Ex.P-G/I. One cell phone given by Rajan Gaur and Anand Kindo to Rajinder Parshad was recovered from the shop of the latter in Sector 18, Chandigarh vide memo Ex.P-G/II. The stolen articles recovered at the instance of both the accused included attaché-cases containing belongings and household articles of the deceased, jewellery, cash amount of Rs.46,000/- and 886 US Dollars and also a laptop. Constable Baljit Singh (PW-11) from Police Station Sector 19, Chandigarh stated that he handed over the Esteem car and the articles recovered therefrom vide memo Ex.P- G/I. Head Constable Jagdish Chander (PW-12) stated about apprehension of accused Anand Kindo and Rajan Gaur at Ahmednagar. He also stated about disclosure statements of these two accused and recovery of a tawa and a hammer at their instance. Rajinder Parshad (PW-13) stated that these two accused had given him a mobile phone for repair on 13.05.2007, but did not come to take back the same. On 09.06.2007, they came along with police and Sumit Dhingra, who identified the said mobile phone from among other mobile phones, to be of his father. The said mobile phone was seized vide Murder Reference No. 6 of 2008 8 memo Ex.P-G/II. Constable Sanjay Kumar (PW-14) stated that he had taken sealed parcel of laptop and deposited it with FSL Madhuban without any tampering. AMHC Satish Kumar (PW-15) stated that sealed parcel of laptop was deposited with him on 10.06.2007 by IO Rajinder Kumar and the same was sent to FSL Madhuban through Constable Sanjay Kumar on 20.06.2007, without any tampering. ASI Ram Niwas (PW-16) from Police Station Sector 19, Chandigarh stated that on 13.05.2007, at about 11:45 A.M., he received information regarding happening of an accident near Tagore Theater, Sector 18, Chandigarh. The witness along with other officials went there and found the aforesaid Esteem car in damaged condition having met with accident with a pole. The car was got photographed. Public persons told that accused Rajan Gaur and Ajit Khaba were sitting in the car and were present there, whereas the car driver had run away after the accident. Statement of Rajan Gaur was recorded and on its basis, report Ex.P-J was entered in Daily Diary. Rajan Gaur stated that he along with Ajit Khaba had taken lift in the aforesaid car being driven by a person also from West Bengal and the car met with an accident at the aforesaid place when a dog suddenly came in front of the car. The driver suffered minor injuries and went to get medical aid. The car was removed to police station. It was found to contain two mobile phones, four file covers/folders, one head of CD player and documents of service of the car. After waiting for car driver or owner of the car to turn up, ASI Ram Niwas on 15.05.2007 went to Sector 25, Panchkula as address of car owner was disclosed by the documents to be House No.1, Sector 25, Panchkula. ASI Ram Niwas along with UGC Ram Kumar went there and found strong foul smell being emitted from the house as if some dead body was decaying there. HC Amarjit Singh (PW-17) stated that the case property was deposited with him and it was not tampered with in his custody till the same was sent to FSL. Dr.Vijay Pal Khanagwal (PW-18) and Dr.Luv Kumar Murder Reference No. 6 of 2008 9 Sharma (PW-19) stated about post-mortem examination on the dead bodies of K. L. Dhingra and Sangeeta Dhingra respectively. Sandeep Kumar (PW-20) is Incharge of Computer Branch in the office of Superintendent of Police, Panchkula. He stated that on 08.08.2007, he gave call details of mobile phone No.98767-15947 and mobile phone No.98767-15948 of Airtel Company to SI Rajinder Singh vide memo Ex.P-M. Constable Mainpal (PW-21) stated that he had taken case property to FSL Madhuban and deposited the same there without any tampering. SI Rajinder Singh (PW-22) and SI Narinder Singh (PW-23) stated about the investigation of the case conducted by them as already noticed. FSL Report Ex.P-X was also tendered into evidence.
On conclusion of prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure (in short - Cr.P.C.). In their statements, the accused denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They alleged that they have been falsely implicated and they did not make any disclosure statement nor got recovered anything. No evidence was led by the accused in their defence.
Learned Additional Sessions Judge, Panchkula vide impugned judgment dated 12.06.2008 and order dated 13.06.2008 convicted and sentenced the accused as already noticed in the opening part of this judgment.
Murder Reference has been made by the trial Judge for confirmation of death sentence of Anand Kindo and Rajan Gaur, who have also preferred separate appeal against their conviction and sentence and Sandhya @ Sangeeta has preferred separate appeal assailing her conviction and sentence.
We have heard learned counsel for the parties at considerable length and also carefully examined the case file with their assistance.
Murder Reference No. 6 of 2008 10At the outset, it has to be noticed that there is no evidence whatsoever to uphold the conviction of Sandhya @ Sangeeta. The learned trial court convicted her on the basis of following observations :-
"80. Nothing has been recovered from accused Sandhya during investigation of this case. But she was residing in a quarter provided by her and her husband's employer.
She did not intimate the police the factum of robbery and murder of her employers Major General (retd.) K. C. Dhingra and his wife Smt. Sangeeta Dhingra. Therefore, I hold her and accused Anand Kindo and Rajan Gaur guilty of offence under Section 201 IPC."
However, there is no basis for conviction of Sandhya. As observed by the trial court, nothing was recovered from her. The trial court has observed that Sandhya was residing in a quarter provided to her by her husband's employer. However, there is not even iota of evidence on record in support of this observation of the trial court. Consequently, the observation of the trial court that Sandhya did not intimate the police about the factum of robbery and murder of her employers, also cannot be accepted. In addition to it, mere non-intimation of the crime to the police does not fall within the mischief of Section 201 IPC. There is not even an allegation, much less evidence, to the effect that Sandhya caused evidence of commission of crime to disappear and it was done with intention of screening the offender from legal punishment, so as to fall within the parameters of Section 201 IPC. In fact, there is no material on record to convict Sandhya or for that reason, to convict even Rajan Gaur and Anand Kindo for offence under Section 201 IPC. Even learned State counsel could not refer to any material on record for sustaining the conviction of the three Murder Reference No. 6 of 2008 11 convicts under Section 201 IPC. Consequently, Sandhya @ Sangeeta deserves to be acquitted, because her conviction is for offence under Section 201 IPC only. Further discussion shall, therefore, relate to the remaining two convicts namely Anand Kindo and Rajan Gaur for offences under Sections 302 and 392 IPC.
The case is based on circumstantial evidence as there is no eye- witness of the occurrence. Learned counsel for the convicts relied on gist of some judgments namely Aloke Nath Dutta and others vs. State of West Bengal reported as 2006 (13) SCALE 467, Manjunath Chennabasapa Madalli vs. State of Karnataka reported as AIR 2007 SC 2080, Varkey Joseph vs. State of Kerala, rep. By the Circle Inspector of Police reported as AIR 1993 SC 1892 and Dasari Siva Prasad Reddy vs. The Public Prosecutor, High Court of A.P. reported as AIR 2004 SC 4383, on the question of circumstantial evidence and also contended that mere suspicion is not substitute of proof. On the other hand, learned State counsel cited Sanjay @ Kaka vs. The State (NCT) of Delhi reported as 2001 (1) R.C.R. (Criminal) 677, State of U.P. vs. Satish reported as (2005) 3 S.C.C. 114, Limbaji vs. State of Maharashtra reported as 2002 (1) R.C.R. (Criminal) 266, State of Rajasthan vs. Kheraj Ram reported as (2003) 8 S.C.C. 224 and Gura Singh vs. State of Rajasthan reported as 2001 (1) R.C.R. (Criminal) 122. Law relating to circumstantial evidence is well settled. Following are the tests to be followed in the case of circumstantial evidence :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established -
Circumstances concerned "must" or "should"
and not "may be" established - There is legal distinction between "may be proved" and must be or should be proved.
Murder Reference No. 6 of 2008 12(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
In the case of Sanjay alias Kaka (supra) and Limbaji (supra), in cases of murder with robbery, recovery of stolen articles at the instance of the accused was held to be a material circumstance. Evidence has to be analysed in the instant case keeping in view the tests laid down for circumstantial evidence.
The first and foremost important circumstantial evidence in favour of the prosecution is that on 13.05.2007, car No. TN-04-E-7020 met with accident in Chandigarh and ASI Ram Niwas of Chandigarh Police went to the spot and found Rajan Gaur-convict and Ajit Khaba-PO at the stop as occupants of the car, whereas the driver (later on found to be Anand Kindo-convict) had absconded. Statement of Rajan Gaur was recorded by ASI Ram Niwas and on its basis, DDR Ex.P-J was recorded. On that day, Chandigarh Police had no clue or information about the murders. The car was seized by the police on the same day. The car, which belonged to the deceased, also contained cell phones and some other belongings of the Murder Reference No. 6 of 2008 13 deceased. The question of creating any such evidence on 13.05.2007 did not arise when there was not even a clue or information that the deceased had been murdered. This evidence therefore assumes significance and in fact, this evidence led to the detection of the murders on 15.05.2007, although the murders had probably taken place on the night intervening 12/13.05.2007. The car was seized on the very next day i.e. on 13.05.2007 and the car, along with articles found therein, belonged to the deceased.
When nobody turned up to claim the car, the Chandigarh Police, on finding address of the car owner i.e. K.C.Dingra-deceased from the documents found in the car, went to his house i.e. place of occurrence. However, there was no response to their call and rather strong foul smell of decomposed body was being emitted from the house. This led to the detection of commission of crime. UGC Ram Kumar of Chandi Mandir Police Station, on the basis of information received from Chandigarh Police, made statement Ex.P-A leading to the registration of the FIR. Names and addresses of Ajit Khaba (PO) and Rajan Gaur-convict and also name of Anand Kindo-convict were mentioned in the FIR, on the basis of information received from Chandigarh Police regarding accident of the car on 13.05.2007. Thus, names of the aforesaid three accused appeared in the FIR at the earliest opportunity.
Next link in the chain of circumstances is provided by arrest of both these convicts on 03.06.2007 at Ahmednagar in Maharashtra, a far off place from the place of occurrence at Panchkula in Haryana. The prosecution has led credible evidence to prove the arrest of both these convicts at Ahmednagar. Tuka Ram Vahile (PW-9) is Inspector SHO of Police Station Kotwali, Ahmednagar and he has categorically stated that two officials of his Police Station, while patrolling on motorcycle, received information from Control Room regarding escape of two suspects from running train Karnataka Express (as provided by Head Constable Jagdish Murder Reference No. 6 of 2008 14 Chander PW-12) and then those two police officials searched for the said suspects around the railway track and found them near Railway Station and they were then brought to the Police Station. These two suspects were none else but Anand Kindo and Rajan Gaur. Inspector Tuka Ram Vahile made inquiries from them and made their formal arrest thereafter at 06:40 P.M. vide memos Ex.P-F and Ex.P-F/1. Report in Daily Diary was also recorded. HC Jagdish Chander (PW-12) has further corroborated this version. He has deposed that on receiving secret information, they reached Railway Station Ahmednagar, where Karnataka Express arrived at about 01:30 P.M. They noticed these two convicts in Coach No.S-13 and when the police officials tried to catch them, they jumped from the moving train. HC Jagdish Chander informed the Control Room. Later on, after receiving message about apprehension of the two suspects, Jagdish Chander reached Police Station Kotwali Ahmednagar and identified both the suspects i.e. Anand Kindo and Rajan Gaur being `WANTED' in the instant case. SI Rajinder Singh (PW-22) has also stated that on receiving information about arrest of Anand Kindo and Rajan Gaur at Ahmednagar, he went to said Police Station and reached there on 04.06.2007 and took custody of both these accused from SHO Tuka Ram Vahile vide memo Ex.P-O. These two accused were then produced before Illaqa Magistrate, Ahmednagar, who granted their transit remand and on reaching Panchkula, they were also produced before Illaqa Magistrate at Panchkula on 06.06.2007. There is thus cogent evidence led by the prosecution regarding arrest of the two convicts on 03.06.2007 at Ahmednagar in Maharashtra.
Next circumstance relied on by the prosecution is that both the convicts, after making disclosure statements, got recovered weapons of offence as well as stolen property. As already noticed, stolen car of the deceased had been recovered on 13.05.2007 at Chandigarh even before the commission of the crime came to notice of anybody. The accused had given Murder Reference No. 6 of 2008 15 one mobile telephone to shopkeeper Rajinder Parshad, who has appeared in the witness-box and stated that these two accused had given the said telephone to him on 13.05.2007 for repairs but they did not come to take it back and on 09.06.2007, the police along with these two accused and Sumit Dhingra, came to his shop and the aforesaid telephone was identified by Sumit Dhingra out of some other telephones to be of his deceased father. Rajinder Parshad identified both these accused in the Court. Rajinder Parshad is an independent witness and there is no reason to discard his testimony. Recovery of this telephone from him is also proved by SI Rajinder Singh (PW-22) as well as Sumit Dhingra (PW-10). Recovery of stolen mobile telephone of the deceased at the instance of accused is also a vital piece of evidence to prove their guilt.
At the instance of both these accused, recovery of other stolen property including cash amount of Rs.46,000/- and 886 US Dollars, valuable ornaments, laptop etc. of the deceased, has also been proved by the testimony of SI Rajinder Singh, HC Jagdish Chander and Sumit Dhingra. This recovery also provides vital link in the chain of circumstantial evidence.
It has to be noticed with significance that the occurrence took place at Panchkula whereas the stolen car of the deceased was recovered in Chandigarh by Chandigarh Police two days before the crime came to notice for the first time. Names of both these convicts have been mentioned in the FIR lodged by UGC Ram Kumar on the basis of information received from Chandigarh Police relating to accident of the car. Rajan Gaur was present in the car on 13.05.2007 at the time of accident. Arrest of the two accused in Maharashtra further lends credence to the prosecution case. Maharashtra Police would not have colluded with the Chandimandir Police to implicate the accused falsely. There are statements of Inspector Tuka Ram Vahile of Maharashtra Police, HC Jagdish Chander and SI Rajinder Singh, regarding Murder Reference No. 6 of 2008 16 arrest of the two accused from Maharashtra. Recovery of valuable stolen property including car, cash amount, jewellery, laptop etc. from/at the instance of the accused also strengthens the prosecution case. ASI Ram Niwas (PW-16)of Chandigarh Police even identified accused Rajan Gaur in the Court being the person, who was present in the car on 13.05.2007 and whose statement was recorded by this witness. One accused was having fresh injury on the knee at the time of his arrest in Ahmednagar as stated by Inspector Tuka Ram Vahile (PW-9). Rajinder Parshad (PW-13), an independent witness, identified both the convicts in the Court and stated that they had given the telephone to him on 13.05.2007 i.e. next day after the occurrence. Chandigarh Police recorded report in Daily Diary only and not FIR because no cognizable offence was made out from the statement of Rajan Gaur regarding the accident as it was a chance accident due to appearance of a dog on the road. However, when nobody came to claim the car, Chandigarh Police, after waiting for two days, went to the place of the owner of the car and thereupon, it was discovered that murders had been committed. It has to be highlighted that the accused in their statements under Section 313 Cr.P.C. have admitted their arrest in Ahmednagar although they also stated that they were illegally detained there. However, their arrest on 03.06.2007 at Ahmednagar, as put to them in Question No. 7, was admitted as correct. Panchkula Police would not have falsely shown their arrest at such a far off place, if they had been arrested in or around Panchkula.
From the aforesaid discussion, it emerges that the prosecution has established all the material circumstances, which form a complete chain of circumstances to prove the guilt of both these accused for offences under Sections 302 and 392 IPC. The evidence led by the prosecution satisfies all the tests required in a case of circumstantial evidence to hold the accused guilty.
Murder Reference No. 6 of 2008 17Learned counsel for the convicts, at the outset, submitted that the accused had moved application under Section 311 Cr.P.C. in the trial court on 06.06.2008 for recalling SI Rajinder Singh (PW-22) and SI Narinder Singh (PW-23) for their further cross-examination, but the said application was not disposed of by the trial court. It is correct that perusal of the trial court record reveals that the aforesaid application, which was moved by the accused after availing of ten opportunities for defence evidence spread over five months approximately, was not formally disposed of by the trial court, but it appears that the said application might not have been pressed before the trial court at the time of final arguments. We have also perused the said application, which simply mentions that certain vital questions were left to be put to the aforesaid two witnesses in their cross- examination. However, it was not revealed in the said application as to what aspect was to be put further to the two witnesses. SI Rajinder Singh was cross-examined at length, whereas SI Narinder Singh, who was Investigating Officer in initial proceedings only, was also fully cross- examined. The said application, which is very vague, as nothing has been specified about the proposed further cross-examination, could not have been accepted by the trial court and we also find no merit in the same. Learned counsel for the convicts also referred to Sections 367 and 391 Cr.P.C. to contend that this Court, in Murder Reference and in Appeal, has ample power to permit additional evidence. However, no ground for permitting additional evidence at this stage has been made out nor any such application has been moved before us. The aforesaid contention of learned counsel for the convicts is accordingly rejected being without merit.
Learned counsel for the convicts contended that Chandigarh Police had got the accidented car photographed, but the photographs have not been produced in evidence. The contention is without any merit because the case does not pertain to the accident of the car. The Murder Reference No. 6 of 2008 18 photographs of the accidented car have no bearing on the instant case.
Learned counsel for the convicts emphasized that neither address of Ajit Khaba (whose name was mentioned in DDR Ex.P-J) nor name of Anand Kindo, much less his address, was mentioned in the DDR Ex.P-J. However, in so far as Ajit is concerned, his name finds mentioned in DDR Ex.P-J. Additionally, the said accused is not before us as he has been declared as PO. That apart, address of Ajit as well as name of Anand Kindo find mentioned in the FIR recorded on the statement of UGC Ram Kumar, who mentioned the same as per information derived from ASI Ram Niwas of Chandigarh Police. Learned counsel for the convicts contended that the prosecution has not explained as to how the same became known, when the same were not mentioned in DDR Ex.P-J. The contention is devoid of force because no such question was put to ASI Ram Niwas (PW-16) nor to UGC Ram Kumar (PW-1) in their cross-examination. In fact, ASI Ram Niwas could have explained how these particulars became known after recording of DDR Ex.P-J and before statement Ex.P-A was made by UGC Ram Kumar. In the absence of any cross-examination of these two witnesses on this aspect, the accused cannot derive any benefit from the aforesaid circumstance.
Learned counsel for the convicts contended that there has been delay in lodging of FIR as well as in sending special report to the Magistrate. This contention is also devoid of substance. ASI Ram Kumar (previously UGC Ram Kumar) (PW-1) stated that Chandigarh Police came to him at about 05:30 P.M. and after visiting the spot, this witness gave information from his walky-talky at about 06:00 P.M. SHO Narinder Singh, Sub Inspector, came there after about 45 minuttes i.e. around 07:00 P.M. Thereafter, statement Ex.P-A of UGC Ram Kumar was recorded. SI Narinder Singh also inspected the spot and found the dead bodies lying on the bed and household articles scattered. Thereafter SI Narinder Singh Murder Reference No. 6 of 2008 19 made endorsement Ex.P-A/3 on statement Ex.P-A and the same concluded at 10:30 P.M. In view of this sequence of events, it cannot be said that there has been any delay in the lodging of FIR. Of course, there appears to be some delay in receipt of special report by the Magistrate as the same was received by him on 16.05.2007 at 08:25 A.M., as per endorsement made on the FIR. However, this delay is insignificant in the circumstances of the case. After statement Ex.P-A was dispatched from the spot with endorsement Ex.P-A/3 on it, the same was taken to Police Station Chandi Mandir at a distance of about 10 kilometers (as mentioned in the FIR) and the FIR was recorded there and thereafter, special report was handed over to Magistrate at Panchkula.
Learned counsel for the convicts next submitted that in application Ex.P-K/2 dated 16.05.2007 for post-mortem examination, it has been mentioned that the deceased had been killed by unknown assailants. It was accordingly argued that the names of the assailants were not known till then and therefore, mentioning of their names in the FIR arouses suspicion about the prosecution case. The argument, although apparently attractive, is in fact devoid of substance. The FIR had already reached the Magistrate at 08:25 A.M. on 16.05.2007 and names of both the convicts and Ajit Khaba stood mentioned therein. There could be no tampering in the FIR thereafter. In fact, there is no circumstance or material to show any tampering in the FIR. However, in application Ex.P-K/2, it was mentioned that the deceased had been killed by unknown assailants because by then, it was not known that both the convicts and Ajit Khaba had murdered the deceased. The only fact known by then was that the car was in their possession on 13.05.2007, when it met with an accident at Chandigarh. Consequently, mentioning of unknown assailants in application for post-mortem examination raises no suspicion about the mentioning of names of the convicts and Ajit Khaba in FIR. The FIR was of course under Section 460 IPC, but it could not be said Murder Reference No. 6 of 2008 20 till then that the convicts and Ajit Khaba had committed the murders and robbery. For the same reasons, the statement of SI Narinder Singh (PW-23), that he had informed his senior officers that the offence had been committed by some unknown persons, has no adverse bearing on the prosecution case.
Learned counsel for the convicts also submitted that there is no evidence to establish that Anand Kindo had been engaged as servant by the deceased or that Anand Kindo and his wife resided in the room provided by the deceased. It is correct that there is no evidence to this effect, but this fact appeared in the disclosure-cum-confessional statements made by the convicts, although this part thereof is inadmissible in evidence. However, absence of evidence regarding engagement of Anand Kindo as servant by the deceased does not demolish the prosecution case in any manner as the prosecution case is proved by cogent and reliable evidence completing the chain of circumstances.
Learned counsel for the convicts also contended that if Rajan Gaur had committed the crime, he would not have disclosed his real name to the Chandigarh Police on 13.05.2007. The contention is hypothetical. Possibly, Rajan Gaur was caught unawares as after the car met with accident, the driver Anand Kindo fled away, while Rajan Gaur and Ajit Khaba - also occupants of the car were allegedly caught by the public and the police reached there a little while thereafter. In unexpected sequence of events, Rajan Gaur perhaps could not disguise his identity before the Chandigarh Police although he coined a story of having taken lift in the car driven by Anand Kindo. In fact, Anand Kindo and Rajan Gaur belong to the same district in West Bengal. Learned counsel for the convicts also contended that Chandigarh Police remained silent for two days after the car was seized. This is, however, most natural conduct of Chandigarh Police because no cognizable offence was made out from the statement of Rajan Gaur nor any person aggrieved by the accident came to lodge any report Murder Reference No. 6 of 2008 21 with the police nor the driver or owner of the car came to claim the car and therefore, after waiting for two days, the Chandigarh Police, on the basis of address disclosed by documents found in the car, reached the spot.
Learned counsel for the convicts also contended that Constable Baljit Singh (PW-11) stated that the car was deposited with him by ASI Ram Niwas on 13.05.2007 vide DDR No. 13 at 11:32 A.M., whereas report Ex.P-J, on the basis of statement of Rajan Gaur, was recorded vide DDR No.23 at 02:30 P.M. It was contended that deposit of the car could not have preceded the report regarding the accident. The argument, although apparently attractive, cannot be accepted because ASI Ram Niwas (PW-16) was not cross-examined on this aspect. The possibility that there was separate Daily Diary of Malkhana regarding deposit of case property cannot reasonably be ruled out. Also the possibility that the car was deposited in Malkhana before recording detailed Report Ex.P-J cannot be ruled out. The car was deposited and Report Ex.P-J was recorded two days before the crime came to notice and the Court cannot be oblivious of this significant circumstance. The aforesaid contention is completely irrelevant and without force.
Learned counsel for the convicts also submitted that no witness of the accident has been examined. The contention is again irrelevant because the instant case does not pertain to accident. Secondly, since no cognizable offence was made out regarding accident, the police did not find out the witness, if any, who might have seen the accident.
Learned counsel for the convicts also submitted that Constable Mainpal (PW-21) stated that he had deposited the sealed parcels with FSL, but samples of DNA were returned by the FSL. However, it is not explained as to how this circumstance helps the convicts in any manner. The contention is completely irrelevant and immaterial. Moreover, Investigating Officer was not cross-examined on this aspect and he could Murder Reference No. 6 of 2008 22 explain as to why and whose DNA samples had been taken and what happened to those samples.
Learned counsel for the convicts next attacked the prosecution case by digging up holes in the version regarding arrest of the convicts at Ahmednagar. It was contended that there were five officials in the team sent to West Bengal but only two officials in the team that went to Maharashtra. However, this aspect could also be explained by Investigating Officer, who was not cross-examined for the same. Moreover, the convicts belonged to West Bengal and therefore, more police officials were sent there as they could even face resistance from sympathizers of the convicts. It was also contended that SI Rajinder Singh (PW-22) has stated that he received message from Superintendent of Police at about 05:00 P.M. regarding arrest of the two convicts at Ahmednagar, whereas the convicts were arrested there at 06:40 P.M., as per arrest memos Ex.P-F and Ex.P-F/1. The contention is again devoid of merit because HC Jagdish Chander (PW-
12) has stated that the train Karnataka Express came to the platform at Ahmednagar Railway Station at about 01:30 P.M. and when both these accused escaped from the train, he informed the Control Room and as per testimony of Tuka Ram Vahile, two police officials of his Police Station, on receiving message from Control Room, searched for the suspects and apprehended them and brought them to the Police Station. Tuka Ram Vahile made inquiries from the accused and Head Constable Jagdish Chander along with Constable Rajbir, also reached there. Formal arrest vide memos Ex.P-F and Ex.P-F/1 was made thereafter at 06:40 P.M. However, both the accused had been apprehended by the two police officials near the Railway Station much earlier. Learned counsel for the convicts also contended that Jagdish Chander had sketches of the two accused with him, prepared on the basis of their photographs in a newspaper, but the same have not been placed on record. However, HC Murder Reference No. 6 of 2008 23 Jagdish Chander and SI Rajinder Singh have not been cross-examined on this aspect. The newspaper containing photographs of these two accused as well as of Ajit Khaba is there in the police file and if the Investigating Officer SI Rajinder Singh had been cross-examined on this aspect, he could have produced the same. Having not cross-examined the Investigating Officer on this aspect, the accused therefore cannot derive any advantage out of the same. It was also contended that SI Rajinder Singh stated that he made dispatch entry in Daily Diary on 25.05.2007 for Ahmednagar. However, he was in Delhi on 03.06.2007, when he received message that these two accused had been apprehended at Ahmednagar and thereupon he went there. It was also contended that order of transit remand has also not been placed on file. However, SI Rajinder Singh and HC Jagdish Chander were not cross-examined on this aspect. On the other hand, the accused after being brought from Ahmednagar to Panchkula were produced before Judicial Magistrate, Panchkula on 06.06.2007 although the transit remand was up to 10.06.2007.
Learned counsel for the convicts also submitted that the two police officials of Ahmednagar Police Station, who firstly caught the two accused, have not been examined by the prosecution. However, it was not necessary to examine them, when there is ample documentary and oral evidence to prove the arrest of the two accused at Ahmednagar. It was also contended that photographs of the two accused have not been pasted in the arrest memos Ex.P-F and Ex.P-F/1 nor any reason has been assigned for doing so, although there is specific Column No. 15 for this purpose at the end of the printed forms of the said memos. It was also contended that handing over memo Ex.P-O has not been attested by anybody from Maharashtra Police. The contention has no merit because the said memo has been attested by Incharge of the Police Station i.e. by Inspector Tuka Ram Vahile. He has also stated that entry for handing over the two accused Murder Reference No. 6 of 2008 24 to SI Rajinder Singh was also made in Daily Diary, which is Ex.P-F/2 and Ex.P-F/3. He also identified both these accused in the Court during trial. Learned counsel for the convicts also submitted that HC Jagdish Chander had left Panchkula on 29.05.2007, but he reached Ahmednagar on 03.06.2007. However, he has explained that they had also stopped on the way in search of the accused. It was also contended that it could not be a mere co-incidence that HC Jagdish Chander reached Ahmednagar on the same day, on which the two accused were boarding the train there. This contention also has no merit because Head Constable Jagdish Chander and Constable Rajbir reached there on receiving information that the two accused would be boarding the aforesaid train. HC Jagdish Chander was also not cross-examined on this aspect. It has also to be highlighted that all the aforesaid contentions assailing the prosecution evidence regarding arrest of the two accused at Ahmednagar, carry no weight in view of admissions made by both the accused themselves in their statements under Section 313 Cr.P.C. that they had been arrested at Ahmednagar on 03.06.2007.
Learned counsel for the convicts next assailed the disclosure statements of the two convicts and the consequent recoveries. It was contended that disclosure statements of both the accused are almost identical. However, both the accused being involved in the occurrence would narrate the occurrence in the same manner and the Investigating Officer, who recorded the disclosure statements, would also record the same in similar language. Moreover, the crucial aspect is not the language of the statements, but the consequent recoveries effected in pursuance of the statements. The said recoveries act as guarantee for genuineness of the disclosure statements. As already discussed, the said recoveries are fully proved by statements of SI Rajinder Singh, Sumit Dhingra and HC Jagdish Chander. The recoveries of such valuable articles and cash could not have been planted. The recovered articles are proved to be of the deceased. They Murder Reference No. 6 of 2008 25 even included mementoes and some clothes of the deceased K.C. Dhingra relating to his Army Regiment. So, the recoveries got effected by the two convicts rather go against them.
Learned counsel for the convicts contended that tawa was allegedly recovered from the bathroom on 09.06.2007, but the same should have been noticed by SI Narinder Singh when he inspected the spot on 16.05.2007. However, at that time, tawa being common household article could not have been suspected to be incriminating article or weapon of offence. The recovery of hammer from near the house in question is also not suspicious in any manner.
Learned counsel for the convicts took pains to point out that some files in the laptop have been modified (tampered) on 04.06.2007, 05.06.2007 and 09.06.2007 and some files had been accessed on the said dates as well as on 08.06.2007. However, report of FSL to this effect does not form part of the evidence nor the concerned expert has been examined nor the Investigating Officer was cross-examined on this aspect. Moreover, learned counsel for the State pointed out that if any tampering was to be done by the investigating agency, the first thing they would have done was to enter the name of Anand Kindo as servant engaged by the deceased and to have entered that Anand Kindo and his wife resided in the accommodation provided by the deceased. The laptop was recovered on 10.06.2007. The said laptop might have been used by the occupants of the house from where it was recovered, from 04.06.2007 to 09.06.2007 i.e. prior to its recovery. Learned counsel for the convicts contended that the deceased had been maintaining diary of important events in the laptop and had mentioned about change of servants in March 2007, but there is no entry therein that Anand Kindo had been engaged as servant. As already noticed, there is no definite evidence that Anand Kindo had been engaged as servant. This version came only in the disclosure statement of Anand Murder Reference No. 6 of 2008 26 Kindo himself as well as that of Rajan Gaur. It was contended that Sandeep Walia (PW-3), who is brother of the deceased Sangeeta Dhingra, also did not state that Anand Kindo was servant of the deceased. However, Sandeep Walia has stated that he had not visited the deceased in the aforesaid house prior to the occurrence as they had recently shifted to the said house. Both sons of the deceased were also not residing with them and they also might not be aware of the name of the latest servant engaged by the deceased. Both the deceased (elderly couple) were residing alone in the house and before the occurrence, they might not have reported to the police that Anand Kindo had been engaged by them as servant. For this reason, there was no entry about Anand Kindo as servant of the deceased in the relevant register being maintained by the police.
Learned counsel for the convicts also submitted that ASP Manish Chaudhary (PW-8) has stated that they went in the search of the accused, but it is not explained as to who were the accused. However, no such question was put to Manish Chaudhary in cross-examination, who could answer the same. The accused possibly could be the present two convicts and Ajit Khaba, whose names figures in the FIR. It was also pointed out that Constable Baljit Singh (PW-11) stated that he did not know who was driving the car when it met with an accident. However, Baljit Singh could not state about this fact as it was ASI Ram Niwas, who could state so. Baljit Singh was posted in Malkhana where the car was deposited with him by ASI Ram Niwas. Learned counsel for the convicts contended that even ASI Ram Niwas has not stated about the name of Anand Kindo. However, ASI Ram Kumar (PW-1) (previously UGC Ram Kumar) stated the said name in statement Ex.P-A on the basis of information derived from ASI Ram Niwas and also stated in the witness-box that Ajit Khaba and Rajan Gaur were sitting in the car when Chandigarh Police reached there and they disclosed the name of the driver as Anand Kindo. However, ASI Murder Reference No. 6 of 2008 27 Ram Niwas was not cross-examined on this aspect. It was contended that no test identification parade was held for identification of Rajan Gaur by ASI Ram Niwas. However, no such identification parade was required to be held when name and address of Rajan Gaur already stood mentioned in DDR Ex.P-J dated 13.05.2007 and ASI Ram Niwas has identified Rajan Gaur in the Court during trial.
Learned counsel for the convicts also argued that Baljit Singh (PW-11) has stated that the car was identified by Sumit Dhingra, but Baljit Singh has not stated that the car was identified by accused-Rajan Gaur. The argument has no merit because Sumit Dhingra could identify the car to be of his deceased father. As regards recovery of the car from Rajan Gaur, there is ample oral and documentary evidence in the form of testimony of ASI Ram Niwas and DDR Ex.P-J and statement of Constable Baljit Singh regarding deposit of car in Malkhana on 13.05.2007. Learned counsel for the convicts also contended that 4-5 folders found in the car have not been exhibited in the evidence and it is not explained as to what documents were contained therein. However, no relevant witness has been cross-examined on this aspect and existence or non-existence of any document therein has no bearing on the prosecution case.
Learned counsel for the convicts argued that the car was found abandoned and the accused have been framed up. The argument is completely hypothetical, based on conjectures and surmises, and is not substantiated by any material on record. No such suggestion was even put to ASI Ram Niwas in his cross-examination. Moreover, Chandigarh Police had no interest in the case. That apart, the car was recovered two days before the crime even came to notice. On 13.05.2007, there was no occasion for Chandigarh Police to have named Rajan Gaur-convict and Ajit Khaba in DDR Ex.P-J nor even on 15.05.2007, there was any occasion for UGC Ram Kumar for falsely naming the two convicts and Ajit Khaba, while Murder Reference No. 6 of 2008 28 lodging the FIR. On the contrary, there is no reason why the two convicts would be framed up falsely at all. Learned counsel for the convicts relying on Shankarlal Gayarasilal Dixit vs. State of Maharashtra reported as AIR 1981 SC 765, Madami Baja vs. The State reported as 1986 Crl. L. J. 433 (Orissa D. B.) and Deoraj Deju Suvana vs. State of Maharashtra reported as 1996 (1) Crimes 486 (Bom) (D.B.) contended that answer to such question as to why the accused have been falsely implicated is not always easy. However, these judgments are based on their own facts and have no applicability to the facts of the instant case. In this case, numerous circumstances have already been noticed herein above which clinchingly prove the guilt of the two accused beyond reasonable doubt. Arrest of the two convicts in Maharashtra, a fact admitted even by themselves, and recovery of the car at Chandigarh two days before the crime came to notice and other circumstances duly proved including recovery of valuable stolen property at the instance of the convicts, prove their guilt beyond reasonable doubt.
Learned counsel for the convicts also contended that mobile telephone given to Rajinder Parshad (PW-13) allegedly for repairs had been used up to 12.05.2007 and had not been used by the accused themselves and therefore, there could be no problem in the telephone requiring repair. The argument has no force because the instrument could develop some problem any time. Moreover, the two convicts disclosed that they had in fact sold the mobile to the shopkeeper. The contention of convicts' counsel that no independent witness was joined at the time of recovery of mobile telephone from Rajinder Parshad is also unacceptable because Rajinder Parshad himself is an independent witness and even Sumit Dhingra and SI Rajinder Singh are independent witnesses and had no axe to grind by falsely implicating the two accused.
Learned counsel for the convicts also contended that even petty Murder Reference No. 6 of 2008 29 articles like mementoes, clothes and napkins are shown to have been recovered at the instance of the two accused. However, while taking away the stolen articles from the place of occurrence after murdering the two deceased, the accused would not have sorted out the articles then and there, and they took away whatever they could lay their hands on. The fact that a chain was found on deceased K. C. Dhingra and a chain with a pendant was found on Sangeeta Dhingra would not rule out the motive of robbery because the accused might not have noticed the same at that time or for some other reason, might not have been able to take away the same. Learned counsel for the convicts also referred to recovery of cash amount having Indian currency of high denominations and US Dollars having some notes of smaller denominations, but the same does not effect the veracity of the prosecution case in any manner.
Learned counsel for the convicts also contended that the stolen articles were not found in the car, which was seized on 13.05.2007. Obviously, before setting out in the car, the accused had concealed the valuable stolen articles, which were later on got recovered by them after making disclosure statements. It was also argued that no list of stolen articles was ever prepared and even laptop was not mentioned to have been stolen. However, the concerned witnesses i.e. Amit Dhingra, Sumit Dhingra and Investigating Officers have not been cross-examined on this aspect and therefore, it cannot be said that no such list was ever prepared. Secondly, since only both the deceased were residing in the house, their sons might not even be aware of all what had been stolen.
Learned counsel for the convicts also referred to an e-mail dated 28.04.2007 found in the laptop. However, the said e-mail is completely innocuous and irrelevant in so far as the instant case is concerned. Learned counsel for the convicts also submitted that the circumstance that Anand Kindo was engaged as servant by the deceased or Murder Reference No. 6 of 2008 30 not, was not put to the convicts in their statements under Section 313 Cr.P.C., and therefore cannot be used against them. The argument is without merit because as already discussed, no such evidence has come on record and therefore, the same was not required to be put to the accused in their examination under Section 313 Cr.P.C. It was also contended that even DDR Ex.P-J has not been put to the convicts in their examination under Section 313 Cr.P.C. and therefore, the same also cannot be used against them. Reliance in support of the contention has been placed on Ajay Singh vs. State of Maharashtra reported as AIR 2007 SC 2188. Learned State counsel, however, countered the contention by submitting that statement Ex.P-A made by UGC Ram Kumar has been put to the convicts in Question No.1 itself and the said statement contains the substance of DDR Ex.P-J as well and therefore, non-confronting the accused with Ex.P-J separately makes no difference. There is considerable force in this argument. Statement Ex.P-A contains all the details which are contained in Ex.P-J and therefore, examination of the accused with reference to statement Ex.P-A without specifically putting report Ex.P-J is sufficient and also no prejudice is shown to have been caused on this ground. On this aspect, learned counsel has cited a judgment of Hon'ble Supreme Court namely State of Punjab vs. Sawaran Singh reported as 2005 (4) AICLR 313.
Learned counsel for the convicts relying on judgment of Hon'ble Supreme Court namely Bhupendra Singh vs. The State of Punjab reported as AIR 1968 SC 1438 contended that in Murder References or Appeals, entire evidence has to be re-appreciated by this Court. However, we have re-appreciated and re-appraised the entire evidence and analysed the same in detail. However, it does not mean that additional evidence should be allowed to be led in the Murder Reference or in Appeal, as argued by learned counsel for the convicts, even without any application for this Murder Reference No. 6 of 2008 31 purpose and even without making out a case for the same. Learned counsel for the convicts also submitted that in the case of circumstantial evidence, mere suspicion is not sufficient and the prosecution has to travel the distance from "may be true" to "must be true". In the instant case, however, the prosecution has led credible evidence to prove its case beyond reasonable doubt.
Learned counsel for the convicts relying on State of Andhra Pradesh vs. Punati Ramulu and others reported as AIR 1993 SC 2644, Jamuna Chaudhary and others vs. State of Bihar reported as AIR 1974 SC 1822, Kishore Chand vs. State of Himachal Pradesh reported as AIR 1990 SC 2140, Vijay Kumar alias Vijayan and others vs. State of Kerala reported as AIR 1993 SC 2641 and Sevi and another vs. State of Tamil Nadu and another reported as AIR 1981 SC 1230 contended that in a case of tainted investigation, accused deserve benefit of doubt. The contention cannot be accepted because in the instant case, the investigation cannot be said to be tainted. Moreover, even some defects in investigation are not sufficient to throw out the entire prosecution case. The Court has to assess and evaluate the material available on record and arrive at a conclusion on the basis thereof. Analysis of the prosecution evidence in the instant case leads to the irresistible conclusion that guilt of both the accused for offences under Sections 302 and 392 IPC is proved beyond reasonable doubt and there is also nothing on record to show that the investigation is tainted in any manner. In fact, there is no reason for tainted investigation so as to implicate the accused falsely. Learned counsel for the convicts also submitted that the convicts before fleeing away to Maharashtra, would not have left behind the valuable ornaments, cash etc. at Panchkula or Chandigarh. However, the State counsel pointed out that some more money and valuables might have also been stolen and taken away and utilized by the convicts.
Murder Reference No. 6 of 2008 32For the reasons recorded herein above, being satisfied that guilt of Anand Kindo and Rajan Gaur for offences under Sections 302 and 392 IPC has been proved beyond reasonable doubt, we affirm their conviction for the said offences.
The next question arises regarding confirmation of death sentence. Learned State counsel contended that elderly couple living alone in the house was murdered and robbery was committed and therefore, it is rare of rarest case in which death sentence should be confirmed by this Court. Reliance in support of this contention has been placed on various judgments namely Mohan Anna Chavan vs. State of Maharashtra reported as 2008 (3) RCR 178-SC (3 Bench Judgment), State of Rajasthan vs. Gajender Singh reported as 2008 (3) RCR 943 SC, Bantu vs. State of U.P. reported as 2008 (3) RCR 909-SC, State of Punjab vs. Vikram reported as 2008 (3) RCR 707 (Pb. & H), State of Punjab vs. Sushil Kumar reported as 2008 (3) RCR 690 (Pb. & H), Shri Bhagwan vs. State of Rajasthan, reported as 2001 (2) RCR 695-SC, Gagan Khuneja vs. State of Punjab reported as 2007 (1) RCR 222-SC, Desh Raj vs. State of Punjab reported as 2007 (4) RCR 133-SC, Ranjeet Singh and another vs. State of Rajasthan reported as AIR 1984 - SC - 672, Machhi Singh and others vs. State of Punjab reported as AIR 1983 SC 957 and Bachan Singh vs. State of Punjab reported as AIR 1980 SC 898 (1).
On the other hand, learned counsel for the convicts contended that it is not rare of the rarest case inviting death sentence. It was also submitted that it is a case based on circumstantial evidence and for this reason as well, death sentence should not be awarded. Learned counsel for the convicts also pointed out that the learned trial court while awarding death sentence took into consideration the fact that Anand Kindo was employed as servant by the deceased and with the help of his other companions, killed his own master (employer), but there is no evidence on Murder Reference No. 6 of 2008 33 record to establish that Anand Kindo had been engaged as servant by the deceased.
We have considered rival contentions raised by the counsel for the parties. On careful consideration, we are of the opinion that it is not a fit case or rare of the rarest case in which death sentence should be imposed on the convicts. Accordingly, we decline to confirm the death sentence in the Murder Reference and instead of death sentence, we sentence the two convicts Anand Kindo and Rajan Gaur to undergo life imprisonment under Section 302 IPC, while affirming the sentence of fine and the sentence of imprisonment in default thereof as awarded by the trial court for the said offence. We also affirm the sentence awarded by the trial court to the two convicts under Section 392 IPC. However, both the substantive sentences of imprisonment shall run concurrently.
In view of above, Murder Reference No. 6 of 2008 made by the trial Judge is declined by converting the death sentence into life imprisonment and Crl. Appeal No. 413-DB of 2008 preferred by Anand Kindo and Rajan Gaur stands disposed of by altering the sentence for offence under Section 302 IPC and by affirming the sentence for offence under Section 392 IPC and by acquitting them of the offence under Section 201 IPC. Crl. Appeal No. 1237-SB of 2008 preferred by Sandhya alias Sangeeta is allowed and she is acquitted of the charge against her and she be set at liberty forthwith, if not required in any other case.
( L. N. MITTAL )
JUDGE
January 23, 2009 ( MEHTAB SINGH GILL )
monika JUDGE
Murder Reference No. 6 of 2008 34