Punjab-Haryana High Court
Charanjeev Singh @ Sunny vs The State Of U.T.Chandigarh on 27 April, 2011
Bench: Hemant Gupta, A.N.Jindal
Criminal Appeal No.495-DB of 2001 (O&M) [1]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
Criminal Appeal No.495-DB of 2001(O&M) Decided on : April 27, 2011 Charanjeev Singh @ Sunny ... Appellant VERSUS The State of U.T.Chandigarh ... Respondent CORAM :
HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.R.S.Cheema, Senior Advocate assisted by Ms.Arshima Singh Cheema, Advocate for the appellant. Ms.Ashima Mor, Advocate for UT Chandigarh.
A.N.JINDAL, J.-
The well-designed, organised and motivated homicidal death of a young boy, namely, Viney Aggarwal, on probe by the Investigating Agency put a needle of indictment against the accused - appellants Charanjeev Singh @ Sunny and Jatinder Bhatia @ Rinku (herein referred as `the accused'). Thereafter, on trial vide impugned judgment dated 17.8.2001 passed by Sessions Judge, Chandigarh, they were convicted and sentenced to undergo imprisonment of life and to pay fine of Rs.10,000/-, each under Section 302/34; to undergo imprisonment for five years and to pay fine of Rs.5,000/-, each under Section 364/34; and also to undergo imprisonment for two years and to pay fine of Rs.2,000/-, each under Section 201/34 of Criminal Appeal No.495-DB of 2001 (O&M) [2] the Indian Penal Code, 1860.
Both the accused filed two different appeals i.e. CRA No.495- DB of 2001 and CRA No.541-DB of 2001. However, accused Jatinder Bhatia died during the pendency of the appeal, therefore, vide order separate order of even date, the appeal preferred by him (CRA No.541-DB of 2001) has been ordered to be abated.
Besides studying, the deceased Viney Aggarwal (herein referred as `the deceased') was working as an insurance agent and was staying along with his father in House No.3407, Sector-32-D, Chandigarh. Both the accused had been supplying him the insurance work and in lieu of that they were fetching commission. However, a dispute had arisen between the accused and the deceased over the commission amount, therefore, the accused persons had nursed a grudge on that account.
On 8.7.1997 at about 3.00 PM, when the deceased was present at his house in Sector-32, Chandigarh, then both the accused came and took him along with his Maruti Car bearing Reg.No.CH01M-0056, as witnessed by Sushil Kumar - complainant (friend of the deceased). Since the deceased did not turn up on that day, Subhash Chander Aggarwal, his father lodged a missing report Ex.PDDD/1 on 9.7.1997 at 10.40 AM with the police while mentioning that the deceased had gone in his maruti car bearing Reg.No.CH01M-0056 at about 3.00 PM on 8.7.1997, but had not returned. Thereafter, on 11.7.1997, Sushil Kumar returned to Chandigarh and he came to know that the deceased was missing, whereas, the accused (who had taken him away) had also arrived at Chandigarh. Therefore, suspecting them to be the culprits, he lodged the First Information Report Criminal Appeal No.495-DB of 2001 (O&M) [3] Ex.POO, wherein, he disclosed as under:-
"I am living with my family in House No.532, Sector-35-A, Chandigarh and working Audio Visual in Sector-21, Chandigarh. Shri Viney Aggarwal s/o Shri Subhash Aggarwal, resident of House NO.3407, Sector-32-D, Chandigarh is my friend. I had to go out-side Chandigarh for my personal work on 8.7.97. Same day, about 3.00 PM, I went to Viney Aggarwal's house in Sector-32 to see him, but noticed that Charanjeev Galhotra @ Sunny had caught Viney on back seat of his car No.CH01M-0056 Maruti Blue colour and another friend of Viney namely Jatinder @ Rinku who lives in House No.2787, Sector-47, Chandigarh was sitting on steering wheel of car and the car was in standing position. On asking Sunny told me that Viney was not feeling well and they were going for bringing medicine for him. They had left in the car in my presence. Same day, I went to Amritsar and Ludhiana for my personal work. Today, I came back to Chandigarh and went to his house to enquire about health of Viney. The family member of Viney told me that Viney was missing from very day. Then, I went to find out Viney's friend Rinku in Sector-47 and came to know that Rinku and Charanjeev had come back to Chandigarh, but not Viney. I am sure that Viney has been murdered by Charanjeev @ Sunny and Jatinder Bhatia. Please register the case and start investigation.
....Sd/- Sushil Kumar"Criminal Appeal No.495-DB of 2001 (O&M) [4]
On registration of the case, Sub-Inspector Mastan Singh commenced the investigation and arrested both the accused. On personal search of accused Charanjeev Singh, one prescription slip Ex.PO was recovered and it was taken into possession vide recovery memo Ex.PQQ. During investigation, it came to light that the accused had purchased tablets of calmpose as against prescription slip Ex.PO from M/s Batra Medical Store, Mohali. They had also purchased a string from the shop of Jai Dayal (PW19) situated at Manimajra and after that they had taken the deceased towards Morni Hills. The Investigating Agency also recorded the statement of Pardeep Kumar, who had disclosed that on 8.7.1997, he had seen the accused going with the deceased in the aforesaid car and at that time, the accused along with the deceased had come out of the car. The deceased appeared to be under the influence of some intoxicant.
On arrest of the accused, Jatinder Bhatia suffered a disclosure statement that he had concealed the body of the deceased in the area of village Mandana and he could also tell the shop from where the string was produced. Similar disclosure statement was made by Charanjeev. He also disclosed the name of the shop from where the medicine was procured. Their statements were reduced into writing, got identified the said places. Thereafter, they also got recovered the body of the deceased from the forest of the Morni Hills, which was identified by the father of the deceased on the basis of the shoes, `kara' (bangle) and half burnt clothes. The Investigating Officer got the body photo-graphed; prepared the rough site plan of the place of recovery of the body; got recovered two beer bottles bearing finger prints of the accused from under the bridge of village Nadha; got the DNA Criminal Appeal No.495-DB of 2001 (O&M) [5] test of Subhash Chander Aggarwal conducted for comparing the blood samples of the deceased; collected the evidence with regard to motive and presented the charge report before the Court.
On commitment, the accused were charged for the offence under Sections 364/34, 302/34 and 201/34 IPC, to which they pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined 38 witnesses in all. Besides the ocular evidence, the prosecution also tendered into evidence the affidavits of HC Gurmail Singh (Ex.PE), Constable Bachittar Singh (Ex.PF), Constable Arvind Kumar (Ex.PG), Constable Sarupinder Singh (Ex.PH), Constable Gurmail Singh (Ex.PEEE).
Dr.Dalbir Singh (PW1) being the member of the team comprising of himself, Dr.B.D.Radotra and Dr.Krishan Vij, which conducted the autopsy on the dead body of the deceased, proved the opinion of the team as under:-
"The dead body belonged to a male about 169 cms in length and aged about 18-22 years, died about a week ago. Cause of death could not be ascertained. However, various specimens (as described in the report) have been handed over to the police for onward transmission to the appropriate quarters."
The post mortem report Ex.PW1/A suggested the time between the death and post mortem as one week. Constable Yash Pal (PW2) is the draftsman, who went to the spot and prepared the scaled site plan Ex.PA and PB. Sh. Amar Nath (PW3) had conducted the identification proceedings of the golden ring and golden chain, recovered from the pawner, namely Bishan Criminal Appeal No.495-DB of 2001 (O&M) [6] Lal Goldsmith at the instance of the accused. HC Gurmail Singh No.500 (PW4), Constable Bachitter Singh (PW5), Constable Arvind Kumar (PW6) and Constable Sarupinder Singh (PW7) are the formal witnesses.
Sh.A.K.Jain, (PW8), Chief Judicial Magistrate, Narnaul, Haryana stated that the local police had moved an application Ex.P1 for taking specimen handwriting and finger prints of the accused, over which he recorded their statements that they did not want to give their specimen finger prints and handwriting. Thereafter, he passed an order in that respect.
Bishan Lal (PW9) aged 65 years, resident of Saharanpur (UP) is the goldsmith with whom the accused had pawned the golden ring and golden chain for a sum of Rs.2500/-. He proved the writing regarding pawning of golden chain and golden ring Ex.PJ/1 and PJ/2 and also proved the recovery memos Ex.PJ/3 and PJ/4, respectively. Darshan Lal (PW10), aged 65 years, resident of Saharanpur (UP) made an identical statement and corroborated the testimony of Bishan Lal, who is his brother.
Dr.Sanjiv (PW11) is the Senior Scientific Officer, Biology, CFSL, who proved his report Ex.PL along with exhibits Ex.PL/1 and photographic enlargement Ex.PL/2.
Naresh Sharma (PW12), a clerk from the office of Regional Transport Authority, Chandigarh, has stated that as per their record, Viney Aggarwal was the owner of the Car bearing Reg.No.CH01M-0056.
Gurpreet Singh (PW14), proprietor of M/s Batra Medicos proved the sale of five tablets of calmpose.
Sh.Anil Kumar Bishnoi, Judicial Magistrate Ist Class (PW15) disclosed that an application Ex.PQ for obtaining the sample papers of the Criminal Appeal No.495-DB of 2001 (O&M) [7] accused was produced before him and he passed the orders Ex.PQ/1.
Dr.Sukhminder Kaur, Sr.Scientific Officer, CFSL (PW16) proved her report Ex.PR stating that residues of kerosene were detected in Ex.P2 and P3 i.e, hair, cloth and wrist watch of the deceased. She further clarified that evaporation of petrol is much faster than kerosene and if some kerosene is mixed in petrol, then petrol evaporates immediately without leaving any traces in the burning condition. Dr.Abhijeet Dass (PW17) is the scientist, who gave the report that the string Ex.P5 (which was recovered from the accused) and P4 (one which was produced by Jai Dayal) were similar in nature. Dr.Inderjit Dewan, Emeritus Professor, PGI (PW18) collected the blood samples of the parents of the deceased. Jai Dayal (PW19) proved the purchase of the string (Ex.P5) by the accused. Ravinder Singh (PW20) is the Finger Print Expert, who after comparison of the photographed impressions of the accused gave the report Ex.PZ disclosing that the finger prints on the two empty beer bottles tallied with the photographed impressions of the accused. Dr.G.V.Rao (PW21) is a scientist at the centre for DNA Finger Printing & Diagnostics, who formed the following opinion:-
"The source of exhibit B (teeth of the suspected deceased) is biologically related to the sources of exhibits A & C (Smt.Raman Aggarwal, mother of the suspected deceased and Sh.Subhash Aggarwal, father of the suspected deceased."
Pardeep Kumar (PW22) is the witness, who had last seen the accused with the deceased, when one of the accused had come to him to Criminal Appeal No.495-DB of 2001 (O&M) [8] purchase two bottles of coke and he had seen one accused as well as the deceased sitting in the car, who appeared to be under the influence of some intoxicant. Surinder Kumar Nayyar (PW23) has proved the receipt Ex.PEE. Jaspal Singh (PW26) and Madhu Sudan Sharma (PW28) are the witnesses, who had confirmed that the deceased was working as a insurance agent with Oriental Insurance Company. Constable Ranbir Singh (PW27) is the photographer, who proved the photographs of the dead body Ex.PKK/1 to PKK/4 and negatives Ex.PKK/5 to PKK/8. He further deposed that after sprinkling grey powder on the bottles Ex.P9 and P10, he lifted the impressions from them. Pardeep Kumar Sharma (PW30) is a witness, who had last seen the deceased in the company of the accused. Sushil Kumar (PW32) is the author of the First Information Report, whereas, Constable Raj Pal (PW33) proved the DDR Ex.PXX and PYY. Subhash Chander Aggarwal (PW34) is the father of the deceased. Sub-Inspector Tarsem Singh (PW31, Sub-Inspector Mastan Singh (PW35), Sub-Inspector Karnail Singh (PW36), Inspector KIP Singh (PW37) and Inspector Nanha Ram (PW38) have disclosed about the steps taken by them during investigation, conducted by them, respectively.
When examined under Section 313 of the Code of Criminal Procedure, 1973, the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. In defence, they examined Amar Singh (DW1), Manjit Singh (DW2) and Ms.Jassy Anand, Finger and Document expert (DW3). However, the resulted into conviction.
Arguments heard. Documents perused.
Criminal Appeal No.495-DB of 2001 (O&M) [9]Mr.R.S.Cheema, the learned Senior Advocate appearing for the accused, in an endeavour to prove the innocence of the accused, has strenuously contended that in the absence of any medical opinion that it was a homicidal death, it would be difficult to connect the accused with the crime and this is the material missing link, which the prosecution has failed to plug; secondly his argument is that the witnesses are interested in the success of the case; motive to implicate the accused has not been established and they would be last persons to kill the deceased on account of the petty motive regarding the payment of commission, which is too feeble to commit such a heinous crime; Section 106 of the Indian Evidence Act, 1872 is not attracted to the facts of the present case. While stressing further that the circumstances, as brought on record by the prosecution in order to connect the accused with the crime, if taken cumulatively, do not unerringly point towards the guilt of the accused, therefore, they should be acquitted of the charge.
To the contrary, while referring to the background of the case that both the accused were friendly with the deceased and they were supplying the insurance work to the deceased; the deceased was last seen with these accused; recovery of the string, the golden ring and chain taken away from the accused and pawned with Bishan Lal (PW9); the testimonies of the last seen witnesses and the testimony of Pardeep Kumar (PW22), who had seen the accused along with the deceased in the car and the accused had purchased two bottles of coke from him; recovery of the beer bottles at the instance of the accused; motive and the corroborative testimony of Sushil Kumar lend one to conclude that it was none-else, but the accused, who had Criminal Appeal No.495-DB of 2001 (O&M) [10] committed the crime. He further states that once it is established that the accused were last seen in the company of the accused, then the burden shifts upon the accused to explain as to how-else Viney Aggarwal died.
Having pondered over the rival contentions, we do not find ourselves persuaded from the arguments as raised by the senior counsel for the accused. The chain of circumstances leading to the homicidal death of Viney Kumar Aggarwal as springing out during the investigation appears to be so natural that do not suggest anything except to draw an inference of the guilt against the accused. Undisputedly, there is no direct evidence in the case and the case is wholly dependent on circumstantial evidence. Unlike the direct evidence, the circumstances, if proved by unimpeachable evidence pointing unerringly towards the guilt of the accused, then the same could be placed reliance. The Apex Court in a recent case Ujjagar Singh vs. State of Punjab, 2008(1) RCR(Criminal) 305 set down following guide-lines for the courts to examine the circumstances before placing reliance upon them:-
"(1) that the circumstances from which the inference of guilt is to be drawn have been fully established by unimpeachable evidence beyond a shadow of doubt;
(2)that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and (3)that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him;
(4)that the circumstances concerned `must or should' and not Criminal Appeal No.495-DB of 2001 (O&M) [11] 'may be; established. There is not only a grammatical but a legal distinction between `may be proved' and "must be or should be proved"
(5)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, (6)the circumstances should be of a conclusive nature and tendency, (7)they should exclude every possible hypothesis except the one to be proved, and (8)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 probabilities the act must have been done by the accused;
(9)whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted."
Here, we may not be failing to mention that the Supreme Court in Ujjagar Singh's case (supra) further expected some explanation from the accused, though, it was the duty of the prosecution to prove the case beyond doubt. Here, it would be apt to record the observations, which were as under:-
"19. We have considered the submission of the State counsel Criminal Appeal No.495-DB of 2001 (O&M) [12] very carefully. It is true that it is generally for the prosecution to prove its case beyond doubt but in circumstances such as the present one, some explanation is also due from an accused in order to absolve himself from suspicion of the crime."
Now, while examining the present case on the parameters as set down by the Apex Court, we need to bring forth some circumstances proving the motive, last seen theory, recovery of the articles removed from the body of the deceased, which do not suggest any other hypothesis inconsistent with the guilt of the accused. As regards motive :- Besides the testimonies of Subhash Chander Aggarwal (PW34), we have with us the testimony of Jaspal Singh (PW26) and Madhu Sudan Sharma (PW28), who have confirmed that the deceased was an insurance agent and the accused were supplying him the customers and there was a dispute between them regarding the commission. Madhu Sudan Sharma (PW28), who is a Development Officer in Oriental Insurance Company, has gone to the extent that accused Jatinder Bhatia also wanted to be an insurance agent and had moved an application Ex.PLL/1 along with photograph Ex.PLL/2 as also the form for depositing the license fee with him, but since he was under-age, therefore, his application was rejected by Mrs.Savita Khanna, the Branch Manager. He also deposed that the deceased used to request him to release the commission amount at the earliest, because both the accused had a share in the commission for supplying insurance work to him. Gurdas Singh (PW29) has also corroborated the prosecution version while deposing that the deceased was working as a motor vehicle insurance agent and he Criminal Appeal No.495-DB of 2001 (O&M) [13] had also got insured his scooter through him. Thus, un-shattered and impartial testimonies of the aforesaid witnesses leave no iota of doubt in our mind to hold that the deceased was working as Insurance Agent and the accused persons had a direct nexus with him and sharing commission. In any case, motive, howsoever small may be treated as sufficient for the commission of the crime. We cannot speculate as to what was there in the minds of the accused. The murders are committed even without motive. The motive is such a feature which lies in the mind of the accused and is difficult to explore, therefore, motive itself could not be treated as a circumstance to acquit the accused. Thus, it would be too weak an argument to say that the motive in the instant case is not adequate for committing the crime.
Last Seen Evidence :- The second circumstance against the accused in the instant case is the leaving of the house by the deceased along with them in car No.CH01M-0056, Subhash Chander Aggarwal (PW34) without mincing the words had disclosed in the Daily Diary Report that Viney Aggarwal had left the house at 3.00 PM in the aforesaid car. Thereafter, we have the evidence of Sushil Kumar (PW32), who being the friend of the deceased had come to his house to see him when the accused were seen taking him in the aforesaid car. The time of taking the accused as narrated by Subhash Chander Aggarwal synchronizes with the time as given by Sushil Kumar. Sushil Kumar did not intervene obviously for the reason that the accused persons were friendly with the deceased and they were in the same business. The deceased was told to be not well and the witness was to got for his work at Amritsar and Ludhiana. Further, he has Criminal Appeal No.495-DB of 2001 (O&M) [14] specifically stated that both the accused along with the deceased left in the car within his sight. Purchase of cold-drinks on the way: There is another circumstance regarding purchase of the cold drinks on the way to Morni Hills by the accused. Pardeep Kumar (PW22), who is the vice-chairman of the Block Simiti, Morni has proved this fact. No bias or prejudice has been levelled against him for deposing against the accused. His deposition is that on 8.7.1997 at 4.00 PM, the accused came in a Maruti car and stopped in front of his shop, summoned him and demanded two bottles of cold drinks. At this, he brought two cokes from his shop. When, he tried to open those bottles, accused Jatinder Bhatia asked him not to open the same and when they wished to take the bottles on payment of price, the accused Jatinder Bhatia paid Rs.28/- as price of the cold drinks. He also identified Jatinder Bhatia, who had come and contacted him. He further deposed that he had seen two other occupants on the rear seat of the car; one of them was catching hold of the other. He identified Charanjeev - accused in the court amongst one of the occupants. He says that when they returned and stopped to return the bottles, the third person was not with them. This witness was cross-examined at length, but nothing such could be elicited from his testimony, which could discredit him.
Another witness, Pardeep Kumar Sharma (PW30) disclosed that at about 4.30 PM, he had seen a car coming from the Chandigarh side, which was occupied by three persons. He identified the accused being the occupants of that car and also deposed that the deceased appeared to be under influence of some intoxicant. His testimony also could not be impeached on any ground.
Criminal Appeal No.495-DB of 2001 (O&M) [15]
Purchase of string :- There is another evidence of purchase of string from the shop of Jai Dayal (PW19) by the accused, which indicates that the accused had gone to the side of Morni Hills with the deceased. Recovery of beer bottles :- The recovery of the beer bottles at the instance of the accused from under the Nadha bridge (which is on the way to Morni Hills) also proves that the accused had gone along with the deceased nearby the place, where the dead body was recovered. Recovery of gold chain and ring from Bishan Dass at the instance of the accused :- The other circumstance is the recovery of the golden ring and golden chain at the instance of the accused, which was pawned by them and the pawn-deed was also executed.
After recovering the dead body on 11.7.1997, DNA tests were conducted and the blood samples of Subhash Chander Aggarwal and his wife (parents of the deceased) tallied with that of the recovered dead body.
It would also be significant to mention here that the accused had no explanation to make as to how-else the deceased ended his life. They in their statements have stated nothing except pleading false implication in the case.
As regards the argument advanced by Sh.Cheema that the doctors conducting the autopsy could not form an opinion about the cause of death, therefore, the accused could not be convicted for the homicidal death, having given out thoughtful considerations to this submission, we are of the view that when the dead body was found in a putrefied condition recovered in the rainy season after four days, it was difficult to carve out the cause of death. The body was recovered in decomposed condition. The Criminal Appeal No.495-DB of 2001 (O&M) [16] post mortem examination was conducted on 14.7.1997 i.e, after seven days of the death. The doctor opined that the death was within seven days, which synchronizes with the testimonies of the other witnesses that the deceased had left the house with the accused on 8.7.1997. The mere fact that the cause of death could not be disclosed, does not relieve the accused of the onus to explain as to how-else the accused died. The doctor has no-where stated that it was a suicidal death. No suggestion has been given to the doctor that he had committed suicide or he died in other circumstances not attributable to the accused. The accused was not suffering from any such disease which may become the cause of his death. No such suggestion was given to the doctor. The traces of kerosene found on his body and the removal of the ornaments (golden chain and ring) and subsequent recovery thereof, along with the recovery of the car also indicate that it was homicidal death and he died other than in natural and normal circumstances. It may further be observed that when once sufficient circumstantial evidence is found to connect the accused with the crime, then without any plausible explanation as to how the accused came in possession of the articles belonging to the deceased, no presumption could be raised that the accused did not commit the crime. Similar observations were made by the Apex Court in case Ezhil vs. State of Tamil Nadu, 2002(3) RCR(Crl.) 775, which are reproduced as under:-
"8. The case rests purely on circumstantial evidence and the most vital circumstance to prove the case of the prosecution is the recovery of the articles belonging to and in possession of the deceased as well as the bloodstained articles from the car in Criminal Appeal No.495-DB of 2001 (O&M) [17] the exclusive possession of the accused, about which there could be no reasonable or plausible explanation by any of the accused. Since the questions very much depend upon the drawl of presumptions engrafted in Section 106 and illustration (a) to Section 114 of the Evidence Act, over which only there has been serious contest by the learned counsel for the appellant, it is appropriate to notice the principles governing the same, before undertaking any consideration of the justification to apply them to the facts of the case. The entire case law on the subject has been extensively reviewed by this Court in a decision reported in Sanjay alias Kaka vs. State (NCT of Delhi), 2001(3) SCC 190: 2001(1) RCR (Crl.) 677 (SC), authored by one of us (R.P.Sethi, J.) and it was held that courts can draw presumptions under Section 106 and illustration (a) to Section 114 of the Evidence Act, and to attract and apply illustration (a) to Section 114 the nature of evidence adduced must be seen to find, among other things the important time factor. Though, no standard time limits can must be fixed to determine whether the possession is recent or otherwise, each case must be judged on its own facts and in a case where there is no plausible explanation by the accused for lawful possession of the articles belonging to the deceased, immediately after the murder, the courts cannot be held to be in error in considering that murder and robbery were integral parts of the same transaction giving rise to the presumption that the Criminal Appeal No.495-DB of 2001 (O&M) [18] appellants not only committed the murder of the deceased but also committed robbery of articles found in the possession of the deceased. As observed by this Court in State of West Bengal vs. Mir Mohammed Omar and others, 2000(8) SCC 382 : 2000(4) RCR(Criminal) 147(SC), the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine, admitting no process of an intelligent reasoning even when the doctrine of presumption considered to be not a rule alien to the above has become statutorily recognized and engrafted in Section 114 and other provisions of the Evidence Act.
Permitting a presumption of fact, otherwise doubtful, by a process of reasoning and inference from other proved facts having regard to the common course of natural events,, human conduct etc., in relation to the facts of the case, was found necessary by the Legislature to ensure a rational, realistic and genuine approach while administering justice in criminal trial for arriving at the truth and there is no scope for adopting any hyper-technical approach or extend undue latitudes in favour of the accused, which only tend to cause erosions in the maintenance of law and order in society otherwise essential in the larger interests of society and mankind."
There is no rule of law that the recovery of the corpus delicti is a sine qua non for conviction of murder, because of the obstacle created by Section 103 of the Evidence Act. Though, the prosecution has to prove its case by Criminal Appeal No.495-DB of 2001 (O&M) [19] leading convincing evidence to connect the accused with the crime, yet Section 106 of the Evidence Act places a serious obligation upon the accused to explain the special facts within his/their knowledge when it is so established. It has been so observed in case Ram Gulam Chaudhury vs. State of Bihar, 2001(4) RCR(Crl.) 347 as under:-
"23. There can be no dispute with the proposition of law set out above. As is set out in the various authorities (referred to above), it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are the persons who had committed the murder. Both the courts below have come to the conclusion, based upon the evidence of PWs 3 and 4 (who were eye witnesses) that Appellant No.9 had killed the accused before the body was taken away by all the Appellants. We have read the evidence of all the witnesses. We have given a careful consideration to the material on record. We see no reason to take a different view. The evidence in this case is direct and there is no reason to disbelieve this evidence. We see no substance in the submission of Mr.Mishra that these two ladies could not have seen the boy being killed and could not have in any case come to a conclusion that he had died. Their presence at the place of incident could not be doubted. Their evidence clearly indicates that the incident took place before their eyes. Criminal Appeal No.495-DB of 2001 (O&M) [20]
We cannot accept the submission of Mr.Mishra that their evidence discloses that the incident took place outside the courtyard and on the road, Mr.Mishra has relied on stray sentences. The evidence has to be read as a whole. Read as a whole both the ladies have given positive evidence that the murder took place in the courtyard. We also see no substance in the submission that PW3 and PW4 could not positively say that Krishnanand Chaudhary had been killed. The evidence is that Bijay Chaudhary stated that "he is still alive and should be killed". On this statement, Appellant 9 gave a chhura blow on the chest. The evidence is that Krishnanand Chaudhary, who was till then struggling twitched and thereafter his body became still. From this it could be concluded that death had taken place. It must be mentioned that even PW1 whose evidence Mr.Mishra relied upon, has deposed that Krishnanand Chaudhary had died.
24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura blow was given on the chest. Thus, chhura blow was given after Bijoy Chaudhary had said "he is still alive and should be killed". The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the Appellants. The Appellants have given no explanation as to what they did after they took away the body. Krishnanand Criminal Appeal No.495-DB of 2001 (O&M) [21] Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the Appellants were suspecting the boy to have kidnaped and killed the child of the family of the Appellants, it was for the Appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the Court there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The Appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr.Mishra."
Again, the Apex Court in case State of West Bengal vs. Mir Mohammad Omar, 2004(4) RCR(Crl.) 147 : 2000 AIR (SC) 2988 has evaluated the provisions of Section 106. When once the factum of abduction is proved at the hands of the accused and the kidnapped person was found murdered shortly thereafter, then the circumstance of abduction would be sufficient to draw the presumption that the accused had committed the murder, unless, the accused explains otherwise. The relevant para 34 of the judgment reads as under:-
Criminal Appeal No.495-DB of 2001 (O&M) [22]
"34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody."
In the instant case also, it is proved from the testimony of Subhash Chander Aggarwal (PW25) that the accused had left the house and the testimony of Sushil Kumar (PW32) proves that these were the accused, who had taken the deceased in the car, which vehicle was recovered from Haridwar (UP). The deceased was also seen in the company of the accused by Pardeep Kumar Sharma (PW30) and the accused did not inform the family of the deceased if he left their company during the said period. The dead body of Viney Aggarwal was recovered from the area where they were last seen with him. It has also come in evidence that the accused had earlier also threatened the deceased for not making the payment of the commission. Thus, when considered in the light of the proximity of time within which the deceased was killed and consistency of time between the death and the post mortem examination, the same are found enough to draw the inference that these were the accused and none-else who had committed the crime. Any other inference by deviating from the above course would Criminal Appeal No.495-DB of 2001 (O&M) [23] have been correct if the accused would have explained and convinced the court with any other plausible version acceptable to a prudent mind. Since they refused to state any such facts, therefore, inference would stand undisturbed.
No finger has been raised so as to challenge the quality and competency of the witnesses to corroborate the facts as set out by the prosecution. The defence as set out by the accused is not reliable. The statement of the draftsman (Amar Singh DW1), who prepared the site plan is meaningless as it has been prepared at the instance of Manjit Singh (DW2), who admitted that he was not present at the spot at the time of recovery of the dead body. Manjit Singh (DW2) has stated that on 1.4.2001, he had gone to Morni Resorts from Sector 21 Chandigarh along with Amar Singh (DW1) on a motor cycle and it took them two hours to reach there. The testimony of this witness is of no consequence because to our mind, time factor depends on the speed with which a motor cycle or another vehicle is driven. Moreover Pardeep Kumar Sharma (PW30) was coming on the different route and the question of comparison with the speed and distance of DW2, who was coming from Chandigarh does not arise. So far as the evidence of DW3, Mrs.Jassy Anand, who is a expert witness, is concerned, she has tried to prove that the photographs of the dead body were taken in the day time and not during the night. However, this witness has stated that the place of recovery of the dead body was pointed out to her by one Chaman Lal, who has not stepped into the witness box and there is nothing on the record to tell as to how the place of recovery of the dead body came to the knowledge of Chaman Lal. Qua the difference in Criminal Appeal No.495-DB of 2001 (O&M) [24] photographs taken by her and the police photographer, she has specifically stated in her statement that she was not aware of the distance from which the police photographer had taken the photographs and also the points from which the photographs were taken. She was not aware as to whether the police photographer had taken the photographs of the dead body while standing, kneeling or sitting. She is also not aware about the nature of the search lights used by the police photographer. Further more during cross- examination, she has admitted that she is not a trained photographer. Thus, the defence, which the accused have tried to set up, comes to the ground, with no legs to stand.
Thus, on scrutiny of the entire evidence, this Court is fully convinced with the circumstances as brought forth by the prosecution forming a complete chain to draw an irresistible conclusion that these were the accused and none-else who had committed the murder of Viney Aggarwal on account of a dispute over the non-payment of their share in the commission.
No grounds to interfere.
Dismissed.
(HEMANT GUPTA) ( A.N.JINDAL )
JUDGE JUDGE
April 27, 2011
`gian'