Punjab-Haryana High Court
State Of Punjab vs Anita Alias Arti Wife Of Rakesh Kumar on 22 February, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
Murder referece No.4 of 2010,
Criminal appeals No.625-DB, 665-DB and 861-DB
of 2010
1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of decision: February ,2011
1. Murder Reference No.4 of 2010
State of Punjab
V.
1. Anita alias Arti wife of Rakesh Kumar, resident of Nanak Nagri,
Moga.
2. Ravinder Singh alias Kaku son of Nirjit Singh resident of
Mohalla Sodhian Wala, Purana Moga.
3. Ranjit Kumar Gupta, son of Vijay Kumar resident of Gali No.7,
Beant Nagar, Moga
2. Criminal Appeal No.625-DB of 2010
Ranjit Kumar Gupta son of Vijay Kumar, resident of Gali No.7, Beant
Nagar, Moga.
V.
State of Punjab
3. Criminal Appeal No.665-DB of 2010
Anita alias Arti wife of Rakesh Kumar, resident of Nanak Nagri
Moga,District Moga.
V.
State of Punjab
4. Criminal Appeal No.861-DB of 2010
Ravinder Singh alias Kaku son of Nirjit Singh, resident of Mohalla
Sodhian Wala, Purana District Moga.
V.
State of Punjab
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE M. JEYAPAUL
Murder referece No.4 of 2010,
Criminal appeals No.625-DB, 665-DB and 861-DB
of 2010
2
Present: Mr.D.S.Pheruman, Advocate for the appellant in
Criminal Appeal No.625-DB of 2010.
Mr. Sanjeev Sharma,Advocate for the appellants
in Criminal Appeal No.665-DB of 2010.
Mr. Akshay Kumar Goyal, Advocate, Amicus curiae, in
Criminal Appeal No.861-DB of 2010.
Mr. K.D.S.Sidhu, Deputy Advocate General, Punjab for
the respondent.
Mr. N.S.Dandiwal,Advocate for the complainant.
M.Jeyapaul,J.
Three accused faced the trial for the offences of kidnaping, murder and criminal conspiracy. All the three accused were sentenced to death for the offences under Sections 120-B and 302 of the Indian Penal Code and rigorous imprisonment for 10 years and fine of Rs.5,000/- with usual default sentence for the offence under Section 364 of the Indian Penal Code. The trial Court has made murder reference for confirmation. Individual accused has filed separate criminal appeal. A-1 Anita alias Arti has preferred Criminal Appeal No.665-DB of 2010; A-2 Ravinder Singh alias Kaku has filed Criminal Appeal No.861-DB of 2010 and A-3 Ranjit Kumar Gupta has preferred Criminal Appeal No.625-DB of 2010. Prosecution version:
2. (a) PW5 Rakesh Kumar is the husband of A-1 Anita alias Arti. PW3 Rajesh Kumar is the brother of PW5 Rakesh Kumar.
PW5 Rakesh Kumar is working in Nestle Factory at Moga. PW5 was blessed with two children, namely, Aman Kumar aged 11 years and Om aged 6 years through A-1 Anita.
(b) Both the children used to go for tuition to the house of Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 3 PW2Veerpal Kaur which is located near the house of PW5. The tuition time was between 5.00 pm and 6.00 pm. ( c ) On 24.9.2009 at about 5.00 pm both Aman Kumar and Om reached the house of PW2 Veerrpal Kaur for tuition. At about 6.20 pm PW2 Veerpal Kaur left both Aman and Om near the house of PW5. At about 7.00 pm A-1 Anita informed PW5 over phone that the children did not return home after tuition. A-1 Anita also proceeded to the house of PW2 Veerpal Kaur at 7.55 pm to know the whereabout of her children. PW2 informed A-1 Anita that she had left her children near her house after the tuition was over. In the meantime PW5 reached home. PW5 and his wife the first accused, accompanied by the Municipal Councillor, Moga started searching for their children. Till about 9 pm on 24.9.2009, they could not get any information about the children.
(d ) About three days prior to the occurrence there was a petty quarrel in which Ranjit Kumar Gupta A-3 and his wife wielded threat to the life of the children of PW5. Recalling the said incident in his mind, PW5 went along with A-1 Anita and the Municipal Councillor and lodged a complaint as to the missing of his both children.
(e) A-2 Ravinder Singh alias Kaku had a mobile bearing sim card No.9781956918. Though A-2 was using that mobile, the sim card of the mobile was registered in the name of Satish Kumar. A-1 was using the mobile bearing sim card No. 9592851851 which was registered in the name of A-2. A-1 also used Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 4 another mobile bearing sim card No.9914505216, registered in the name of A-2 furnishing a different village address. PW16 Surjit Singh, is the Assistant Manager of Idea Cellular Limited Mohali. He having produced the call details of subscribers Ex.P41 to P44 has spoken about the above facts.
(f) On the day of occurrence A-1 and A-2 had talked hours together right from 8.00 am to 7.30 pm. A-1 had exclusively used her mobile bearing sim card No.9914505216 given to her by A- 2, for the purpose of clandestinely contacting him.
(g) PW6 Amarjit Singh was the farm servant of PW7 Gurnaib Singh. For a quite long time PW6 Amarjit Singh had been looking after the field of PW7. On 24.9.2009 at about 8.00 pm he having ploughed the field of PW7 proceeded to his house near the railway crossing in the field of PW9 Bhagwan Singh. He found A-2 Ravinder Singh and A-3 Ranjit Kumar Gupta along with two kids over there. Thereafter he proceeded to his house.
(h) PW9 Bhagwan Singh went to the field at about 6.30 am on 25.9.2009. He found to his surprise dead bodies of two children in his field. He reported the matter to the police.
(i) PW5 Rakesh Kumar having received the message that his two kids were lying dead near the railway crossing, proceeded along with his wife and others to the said place. PW5 could not withstand the agony of seeing his children lying dead and,therefore, he was brought back home. A formal first information report was registered on 25.9.2009 at 7.30 am. PW12 SI Subhash Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 5 Chander proceeded to the scene of occurrence and got the dead bodies identified by PW3 Rajesh Kumar. PW12 conducted inquest on the dead bodies of Aman Kumar and Om and recorded the statements under Section 175 Cr.P.C. One school bag of Aman Kumar containing books and geometry box was lifted from the spot. Two pairs of chappals also were recovered vide memo Ex.P5. The dead bodies of Aman and Om were sent to the Civil Hospital, Moga for post mortem examination.
(k) PW4 Dr. Sanjiv Kumar Jain, Medical Officer attached to the Civil Hospital,Moga conducted the post mortem examination on the dead body of Om at 2.00 pm on 25.9.2009. He found the following injuries on the dead body of Om:
1. A groove round the neck at the level of thyroid cartilage was present with width of 2.5 cm on front and 3.5 cm on side prominent on front but absent on back of neck. Multiple abraded contusions were present at margin of groove.
On dissection: Subcutaneous ecchymosis were present larynk and trachea contained blood groove was reddish brown.
2. Abraded contusions present on inner aspect of upper and lower lips on left side. Clotted blood was present.
3. Multiple abraded contusions present on left side of face and left mandible region.
Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 6
(l) Thereafter he conducted post mortem examination on the dead body of Aman Kumar. He found the following injuries on his dead body:
1. A reddish brown groove round the neck at the level of thyroid cartilage was present with width of 3 cm Mark was absent on back. Multiple abraded contusions were present at margin of groove.
On dissection: Subcutaneous ecchymosis were present beneath and margin of groove. Left thyroid cartilage as injured. Larynx and tracha contained blood. Lymph nodes above groove congested.
2. Lacerated wound 1.2 cm x 1 cm at level of hyoid bone in midline. Hyoid bone was normal. Clotted blood was present.
3. Multiple abraded contusions 6 in number present on right side of neck and face starting from angle of right mandible and going to right cheek.
4. Multiple abraded contusions present on inner aspect of both lips. Clotted blood was present. It is his opinion that Aman Kumar and Om had died due to asphyxia as a result of strangulation which was ante mortem and the same was sufficient to cause death in the ordinary course of nature. He has also opined that the death would have occasioned within 6 to 18 hours prior to post mortem examination.
(m) PW13 Goverdhan Lal is the husband of Saroj Rani Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 7 who was the Municipal Commissioner, Moga. When he was present in his house on 26.9.2009 at about 8.30 pm, A-2 and A-3 came to his house and informed him that both of them had committed murder of the children of PW5 and A-1. They in fact requested him to produce them before the Police but PW13 advised both the accused to come on the next day but they had not returned.
(n) On 27.9.2009 PW12 SI Subhash Chander raided the house of A-3 Ranjit Kumar Gupta and arrested him. On personal search he seized nokia mobile bearing sim card No.9779577457and another mobile bearing sim card No.9872537270 vide memo Ex.P26. Thereafter he proceeded to the house of A-2 Ravinder Singh and arrested him. On personal search he recovered Nokia mobile bearing sim card No.9781956918 vide memo Ex.P29 Thereafter he reached the house of A-1 Anita and arrested her. On personal search made by lady constable Sukhwinder Kaur, nokia mobile bearing sim cardNo.95921-85151 was recovered.
(o) On 29.9.2009 A-3 Ranjit Kumar Gupta and A-2 Ravinder Singh suffered disclosure statements separately. Based on their disclosure statements a school bag and a rope concealed by them in the paddy field were recovered. Thereafter a mobile phone bearing sim card No.9914505216 was recovered from the house of A-1 Anita vide recovery memo Ex.P40. Constable Bahal Singh produced the call details of the above mobiles. Calls details of mobile phone recovered from A-2 was marked as MO26. The call details of mobile phone recovered from A-1 Anita was marked as MO27 and Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 8 the call details of mobile phone recovered from Ranjit Kumar Gupta was marked as MO28. Another call details of mobile phone recovered from A-1 Anita was marked as MO29.
(p) After completing the investigation final report was laid as against all the accused.
Defence set up through statement under Section 313 Cr.P.C. statements:
A-1 Anita
(q) She having found that her children had not come back home, she alerted her husband and enquired from PW2 Veerpal Kaur also. Based on the suspicion she and her husband had as against Sanju wife of A-3 Ranjit Kumar Gupta due to the quarrel about two days earlier to the occurrence, a complaint was given suspecting their role. For extraneous consideration and without any justification whatsoever, she was falsely and dishonestly framed as one of the accused. Nothing could be more cruel than the accusation that a mother killed her sons. She was ruined and rendered friendless and penniless. She was penalized without any culpabale conduct on her part.
A-2 Ravinder Singh
(r) He was not involved in the alleged offence. On 25.9.2009 he was very much present in his house. Later on he having been accompanied by Jagjit Singh, Deepak Kumar, Vinay Kumar etc. went to the Police Station City Moga. The Police took him into custody. The prosecution has come out with a totally Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 9 false story. He was involved based on misguided suspicion. Nothing was recovered from him.
A-3 Ranjit Kumar Gupta:
(s) A-1 Anita quarrelled with him and his wife Sanju over a domestic matter. On 24.9.2009 he had been to Karanpur Mandi to join the celebration of birth day of the child of his brother-in-law Surinder Kumar. On 26.9.2009 at about 1 a.m. the police party of Moga headed by Gurbhej Singh SI of CIA Staff, Moga visited the house of his brother-in-law Surjinder Kumar at Karanpur Mandi. The Police party took him into custody. They also took Nirmala Devi, Sanju and Monika Goyal and brought all of them to Karanpur Police Station. In the morning at about 9.20 am on 26.9.2009, the police party informed him that he was wanted in a case at City Moga Police Station. He was taken to CIA staff, Moga. The relevant entries relating to the arrival and departure of the police party from Police Station City Moga were recorded in the Daily Diary report maintained at Police Station, Karanpur. He was tortured and as a result of which he sustained fracture of his hip disk and neck of femur bone.
On the basis of request made by him he was admitted to civil hospital Moga as per the direction of the Court. The extra judicial confession was fabricated. The mobile phone alleged to have been recovered does not belong to him. The disclosure statements also were fabricated by the police officials. The police had acted with extreme partiality and unfairness to tighten the knots around his neck. Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 10 Defence version:
(t) DW1 Jagjit Singh would depose that A-2 Ravinder Singh was produced by him before the police as per the request made by him. DW2 HC Ram Singh attached to Karanpur Police Station having referred to the Daily Diary Report of Karanpur Police Station dated 26.9.2009 marked as Ex.D1 and Ex.D2 spoke to the factum of arrival of the police party from Moga along with A-3 Ranjit Kumar Gupta, Nirmal and Monka Goyal to Karanpur Police Station.
DW3 Jugal Kishore belonging to Bhartiya Janta Party has deposed that on 26.9.2009 at about 1.30 am Surinder Goyal, Advocate came and informed him that his son Monik Goyal, his brother-in-law Ranjit Kumar and mother-in-law Nirmala Devi were taken by the Punjab Police forcibly. He proceeded to the Police Station along with him and found them present in the Police Station. The Police party of Moga was also present over there. It was informed that A-3 Ranjit Singh Gupta was required by City Moga Police Station Punjab in connection with FIR No.165 dated 25.9.2009. Ranjit Kumar Gupta along with two other persons were taken away by Moga Police. DW4 HC Kulwant Singh is working in CIA Staff Moga. He brought the DDR dated 25/26.9.2009 of CIA staff Moga. He has referred to the DDR details found in Ex.D3 and D4.
Verdict of the trial Court:
3. The trial Court having relied upon the motive part of the case, the last scene theory, the extra judicial confession, the arrest of the accused and the recovery of material objects in the back ground Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 11 of the medical evidence rendered a verdict of conviction. Considering the fact that the very mother of the innocent children had been a part of the conspiracy along with A-2 and A-3 to murder the children, classified the case as rarest of rare cases and chose to give capital punishment of death to A-1 to A-3.
Arguments on the side of appellants:
4. (a) The learned Counsel appearing for Anita alias Arti the first accused-appellant would submit that the material witnesses PW10 Krishan Lal who alleged to have seen A-1 handing over her two children to A-2, Ravinder Singh and A-3 Ranjit Kumar Gupta had turned hostile. Except the telephonic conversation alleged to have taken place between A-1 Anita and A-2 Ravinder Singh, there was no other material to establish that A-1 had any role in the murder of her children. Admittedly the sim card numbers of the mobile phones alleged to have been recovered from the possession of the first accused did not stand in her own name. The first accused was not named in the FIR. The fact that she was also in search of her children along with her husband would go to show that she had not participated in the occurrence.
(b) The learned Counsel appearing for the second accused Ravinder Singh would submit that the motive against the second accused was not established. PW10 Krishan Lal had turned hospital. Therefore, the first limb of the last seen theory could not be established by the prosecution. PW6 Amarjit Singh was not known to A-2 and A-3. He had in fact participated during the course of Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 12 inquest conducted by PW12 SI Subhash Chander in the morning on 25.9.2009. He had allegedly reported to PW12 SI Subash Chander only by 9.00 pm on the said day about the spotting of A-2 and A-3 at the scene of occurrence. Therefore, his evidence cannot be relied upon by the Court of law. The alleged extra judicial confession given by A-2 to PW13 Goverdhan Lal appears to be very artificial. Based on such a weak piece of evidence, A-2 cannot be convicted in a case of blind murder. The fact that PW6 had seen the accused in the Police Station on 25.9.2009 itself would go to show that no extra judicial confession was given by A-2 to PW13. PW6 Amarjit Singh would state that he saw the bags at the scene of occurrence in the morning of 25.9.2009. Therefore the recovery part of the case of the prosecution does not inspire confidence. The evidence of PW16 Surjit Singh Assistant Manager, and PW17 Sunil Rana, the officials from the mobile company and the documents produced by them would not be admissible under Section 65-B of the Evidence Act. There is no material linking evidence to involve the second accused in this case.
(c ) The learned Counsel appearing for the third accused would submit that A-3 has been implicated only on suspicion. The petty quarrel between third accused's wife and A-1 would not have culminated in the murder of two school going children. If the quarrel between the wife of third accused and A-1 is taken as a motive, there was no reason for A-1 to hand over the children to A-2 and A-3. A-3 has established by leading defence evidence that he was arrested Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 13 by the Police at 1.00 am on 26.9.2009 itself. Therefore, the whole case of the prosecution that he also gave extra judicial confession to PW13 Goverdhan Lal does not stand to reason. The arrest and the recovery of the material objects put forth as against the third accused cannot be accepted in the above facts and circumstances. There was no evidence to establish that the mobile phone stood in the name of third parties, was handed over to A-3 for use. Therefore, it is his submission that A-3 has been implicated falsely. Arguments on the side of the prosecution:
5. The Deputy Advocate General appearing for the State of Punjab would submit that the prosecution could establish that there was a motive for the murder. The call details produced relating to the phone used by A-1 and A-2 would go to establish that they had some intimacy which culminated in the murder. The last seen theory, the arrest of the accused, recovery of the material objects and the call details produced would go to establish that all the three accused having conspired to murder the children of PW5, kidnapped them and committed the murder.
Discussion
6. Homicidal death: The dead bodies of Aman Kumar and Om were identified by PW3 Rajesh Kumar who is none other than the brother of PW5 Rakesh Kumar,complainant. P.W.4 Dr. Sanjiv Kumar Jain has conducted post mortem examination on the dead bodies of Aman Kumar and Om on 25.9.2009. Considering the nature of injuries found around the neck except the back portion Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 14 thereof, on the dead bodies of both the children, he has opined that both of them had died due to asphyxia, as a result of strangulation which was ante mortem and the same was sufficient to cause death in the ordinary course of nature. The above medical evidence would establish clinchingly that Aman Kumar and Om had died a violent homicidal death. Now we will have to analyze in depth the materials produced by the prosecution to find out the real culprits who actually caused the homicidal death of Aman Kumar and Om. Motive:
7. PW5 Rakesh Kumar the unfortunate father of the deceased children Aman Kumar and Om would depose that the third accused and his wife Sanju picked up a quarrel with his wife and they in fact warned the first accused with dire consequences qua her children. What actually was the petty quarrel between the families of the third accused and the first accused was not brought forth by the prosecution. A-3 in his statement under Section 313 Cr.P.C. would admit that there was a quarrel over some domestic problem between his family and the first accused. Therefore the fact remains that there was some quarrel two or three days prior to the occurrence between the families of the third accused and the first accused. The prosecution has come out with a case that it was the first accused who in fact had handed over her children Aman Kumar and Om to A- 2 and A-3 for the purpose of murdering them. If at all A-3 had decided to do away with the life of Aman Kumar and Om as per the alleged threat he and his wife has wielded earlier, there was no Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 15 reason for the first accused to hand over her children meekly to A-2 and A-3 to cause the death of her children. Therefore, the suspicion thatconfronted the mind of A-1 and PW5 at the time when they lodged the complaint appears to be ill-founded. Further the petty quarrel between the families of A-3 and A-1 would not have culminated in such a cruel murder of two young children. Therefore the story of the prosecution that the petty quarrel that took place between A-3 and A-1 ghastly two or three days earlier to the occurrence had culminated in such a ghostly occurrence does not stand to reason.
8. We thoroughly scanned the call details produced by PW16 Surjit Singh, Assistant Manager of the Idea Cellular Limited Mohali and PW17 Sunil Rana Nodal Officer, Byharti Airtel Limited, The prosecution could establish on the basis of recovery made from the first accused Anita and the second accused Ravinder Singh immediately after their arrest that a mobile set bearing sim card No.9914505216 obtained in the name of second accused Ravinder Singh was entrusted confidentially to A-1 Anita for exclusive interaction only with him and the mobile set bearing sim card No.9781956918 was kept by A-2 Ravinder Singh for his personal use. The call details found from serial No.259 to 284 in Ex.P44 would go to establish that except a small fraction of break A-1 Anita and A-2 Ravinder Singh had been chatting together for hours together on the fateful day i.e. on 24.9.2009. Though there is no direct evidence to establish that A-1 and A-2 had developed illicit Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 16 intimacy, the aforesaid call details of the mobile gifted exclusively by the second accused to the first accused and the mobile details of the mobile set kept for personal use by second accused would go to show that they had an abnormal close intimacy. Unless they had been in madly love with each other such a chatting for hours together i.e. almost the whole day would not have taken place. Till about the time of kidnapping the minor children A-2 had chatted with A-1. The incessant talk held by A-2 with A-1 would go to show that A-2 had been madly infatuated towards A-1. We have to infer that the unusual attraction of A-2 towards A-1 had completely blinded his senses which ultimately caused the death of minor children. It is quite probable that A-2 would have thought that the minor children had been a hurdle for his close proximity with A-1. No explanation was forthcoming either from A-1 or A-2 as to the circumstances under which the mobile phone with sim card was gifted by the second accused to the first accused for exclusive use between A-1 and A-2. There was no answer from A-1 or A-2 as to why they got engaged in chatting for hours together even on the fateful day. Therefore, in our considered opinion the prosecution has established that A-2 who had been maly in love with A-1 had determined to eliminate the school going children of PW5.
Last scene theory
9. PW10 Krishan Lal has deposed before the Court that he had been to Bihar to operate his truck bearing registration No.RJ 13- G 3569 and he came back only on 24.9.2009 at about 11.00 pm to Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 17 Moga. Having come to know that the children of PW5 were missing, he also joined him in the process of search of the children. He has completely given a go by to the last scene theory attempted to be projected through him by the prosecution.
10. The learned Deputy Advocate General for the State would submit that the portion of evidence of PW10 that A-2 and A-3 used to visit the house of the first accused could be relied upon by the Court. We thoroughly perused the evidence of PW10. When he was cross-examined by the prosecution with the permission of the Court after he was declared hostile, he states as follows:
" It is incorrect that both Ranjit Kumar and Ravinder Singh used to visit the house of Aati. I told the police that accused Ranjit Kumar and Ravinder Singh used to come to the house of Arti."
From the above self contradictory version of PW10 we are unable to infer that A-2 Ravinder Singh and A-3 Ranjit Kumar Gupta were on visiting terms to the house of Arti. The prosecution in fact made an attempt to rope in the first accused in the crime of murder only through PW10 Krishan Lal. In as much as PW10 had completely turned hostile and has also come out with self contradictory version, no portion of his evidence could be relied upon by the Court. The prosecution has miserably failed to establish the first limb of last scene theory through PW10 Krishan Lal.
11. PW6 Amarjit Singh is the farm servant of PW7 Gurnaib Singh. He has categorically deposed that after completing his farm Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 18 work in the field of PW7, he set off to his house at about 8.00 pm on 24.9.2009. He found A-2 Ravinder Singh and A-3 Ranjit Kumar Gupta along with the deceased children of PW5. It is true that he has deposed that he was present in the following morning when the Police was conducting inquest on the dead bodies of Aman Kumar and Om but it appears that he had not chosen to disclose the spotting of A-2 and A-3 at the scene of crime along with those two deceased children. On a perusal of testimony of PW6 Amarjit Singh and PW7 Gurnaib Singh it is found that PW6 did not like to take the risk in a case of double murder. He had preferred to first apprise PW7 who was his boss, before ever taking the decision to inform the police about spotting of A-2 and A-3 at the scene of crime with the children. It is further found from the evidence of PW6 and PW7 that PW6 in fact shared the information with PW7 and thereafter PW6 and PW7 proceeded to the Police Station and apprised PW12 who was in the Police Station about the spotting of A-2 and A-3 along with the two deceased children nearby the scene of occurrence.
12. Of course it is true that PW6 Amarjit Singh would state that he along with PW7 went to the house of PW5 to condole the death his kids. PW5 Rakesh Kumar and PW7 Gurnaib Singh had some relationship with each other, PW6 has further deposed. But PW7 has denied the fact that he went along with PW6 to condole the death of the children of PW5 Rakesh Kumar and that Rakesh Kumar had any relationship with him. The innocuous contradiction found in the evidence of PW6 and PW7 as to the relationship of the Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 19 parties does vitiate the credibility of PW6 and PW7. PW6 had been working in the field of PW7 till evening on the fateful day. It is quite natural for him to proceed to his house which is located near the place of occurrence. If at all he was a witness cooked up for the purpose of this case by the prosecution, his presence during the course of inquest could have been completely suppressed both by PW6 and the Investigating Officer. But the real facts have been brought before the Court that PW6 had an apprehension in his mind as there was a double murder of children and,therefore, he had an idea to consult his master before ever he could come out with any revelation. The conduct of PW6 and PW7 found to be quite natural. There is no reason to disbelieve the evidence of PW6 and PW7. Their testimony inspires confidence of this Court.
13. Though the prosecution could establish the last scene theory through PW6 and PW7 against A-2 and A-3, the other materials on record which we are going to deal in detail hereinbelow would go to show that the material link evidence as against A-3 is unfortunately cut off and benefit of doubt will have to be given to A-3. Extra judicial Confession:
14. The extra judicial confession is a weak piece of evidence. Unless it is established that the maker of the extra judicial confession had an occasion to repose confidence in the person to whom the extra judicial confession was given, the prosecution version of extra judicial confession cannot be safely relied upon. PW13 Goverdhan Lal was the husband of Saroj Rani Municipal Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 20 Commissioner, Moga. It is his evidence that on 26.9.2009 at about 8.00 pm when he was at his house the second accused Ravinder Singh and third accused Ranjit Kumar Gupta came and disclosed that both of them committed murder of the children of PW5 Rakesh Kumar. Inspite of the fact that they requested him to produce them before the Police, he asked them to come on the next day but both of them did not meet him, the next day. In fact he was treated as hostile as he had confined himself to the extra judicial confession given by the second accused. During the course of cross-examination by the prosecution after treating him as hostile he came with a case that A-3 also confessed the crime committed by him.
15. For two reasons we are unable to accept the testimony of PW13. It is found that he joined PW5 Rakesh Kumar in searching his missing children right from the night of 24.9.2009. But surprisingly he had not informed Rakesh Kumar with whom he associated for the search of his missing children that these two culprits came and confessed the crime before him, nor had he informed the City Moga Police Station, though he had the telephone number of the Moga City Police Station. Such an unnatural conduct of PW13 Goverdhan Lal does not persuade us to accept his testimony. Secondly it has been established by the third accused through the evidence of DW2 HC Ram Singh attached to Karanpur Police Station District Sri Ganga Nagar, Rajasthan, DW3 Jugal Kishore belonging to a political party and DW3 Kulwant Singh attached to CIA Staff Moga in the background of Ex.D1 to D4 that the Police party attached to CIA Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 21 Staff Moga set off to Karanpur to apprehend the third accused on 25.9.2009 itself and in fact the third accused was arrested at Karanpur Mandi in the residence of his brother-in-law at about 1.00 am on 26.9.2009 and was brought to Moga Police Station in connection with the present case. This material fact has been completely suppressed by PW12 SI Subhash Chander who is the Investigating Officer in this case. He feigns ignorance of the fact that the CIA Staff Moga set off to Karanpur for apprehending the third accused and having apprehended him brought to Moga Police Station in connection with the investigation of this case. There is no reason for DW2 HC Ram Singh attached to Karanpur,Police Station to speak falsely as against the prosecution version in this case. His evidence is completely supported by the DDR maintained by Karanur Police Station. DW4 HC Kulwant Singh attached to CIA Staff Moga has brought Ex.D3 and Ex.D4 and gave evidence. Those documents would go to establish that in fact the police party from CIA Staff Moga had set off to Kranpur to apprehend the third accused. The evidence of DW3 lends support to the evidence of DW2 and DW4. The above facts and circumstances would go to establish that the third accused was arrested as early as on 26.9.2009 at 1.00 am at Karanpur in Rajasthan. But the prosecution has projected a case as though he was arrested during the on a raid of his house on 27.9.2009.
16. There is another aspect to be taken note of by us. The CIA staff Moga had set off to Karanpur on receipt of information that Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 22 the third accused had been to Karanpur to his brother-in-law's house. It is in evidence that Karanpur is situated about 250 kms from Moga. Even at the time when the CIA staff Moga had set off to Karanpur about 4/5 hours prior to the arrest of A-3, A-3 should have been stationed at Karanpur but quite unfortunately the prosecution has projected through PW13 Goverdhan Lal as though the third accused Ranjit Kumar Gupta was also present along with the second accused on 26.9.2009 and gave extra judicial confession to him. In view of the above facts and circumstances the evidence of PW13 which is found to be quite unnatural, is rejected in toto by us. Arrest and Recovery:
17. At the out set, let us make it clear that the prosecution had made an attempt to involve the third accused as there had been a suspicion in the mind of PW5 Rakesh Kumar who lost his two children as to the role of A-3 who had a wrangling with his wife namely the first accused herein. That is the reason why the Investigating agency having arrested A-3 at Karanpur on 26.9.2009 at 1.00 am itself has projected PW13 Goverdhan Lal as A-3 also gave extra judicial confession to him on 26.9.2009 at 8.30 pm. Such a concocted story of the prosecution as regards the role of A-3 is quite unbelievable. Unfortunately the prosecution would come out with a case that A-3 was arrested only on 27.9.2009. When the arrest of A-3 shown by the prosecution has been completely stage managed, the recovery of any material object from his personal possession or at his instance based on the alleged disclosure Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 23 statement cannot be relied upon by the Court of law.
18. As regards the second accused, it is evident that PW12 who raided his house arrested him on 27.9.2009 and recovered the mobile phone bearing sim card No.9781956918. A school bag and a rope also were recovered from the field based on the disclosure statement given by him. DW1 had been fielded by A-2 to bat his cause. In the face of the credible evidence as to the arrest of A-2 by PW12 on 27.9.2009 during the raid of his house, the evidence of DW1 does not seem to be trustworthy. The arrest of second accused and the recovery effected based on his disclosure statement lend corroboration to the case of the prosecution as against the second accused. PW5 Rakesh Kumar had no courage to see his children lying dead and, therefore, he had to be taken back to his residence. Therefore, he cannot be a competent witness to speak about the recovery of the school bags from the scene of occurrence. The recovery of sechool bags at the scene of occurrence spoken to by PW5 Rakesh Kumar cannot be taken advantage of by the accused. PW6 on his part has stated that he saw the school bag at the scene of occurrence following morning. Due to the lapse of time between the date of occurrence and the date of his examination before the Court, he might have stated before the Court by over sight that two bags were found near the dead bodies of the children. Therefore such a testimony of PW6 Amarjit Singh does not falsify the recovery of a bag at the instance of the disclosure statement given by the second accused.
Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 24
19. It is true that PW2 Veerpal Kaur and PW6 Amarjit Singh have stated that the accused was found in the Police Station on 25.9.2009 but such a version cannot be true, inasmuch as even as per the version of A-3, he was arrested only on 26.9.2009 at 1 am at Karanpur in Rajasthan.
20. At the initial stage the first accused Anita was not at all suspected. Later on she was arrested from her house on 27.9.2009 and from her custody the mobile phone bearing sim cards No.9592851851 and 99145-05216 were recovered. The recovery of those mobiles phones and the relevant call details Ex.D41 to Ex.D44 would support the case of the prosecution that A-2 had a close intimacy with A-1 which culminated in the unfortunate occurrence.
21. It is true that PW6 Amarjit Singh has spoken to the fact that he spotted A-3 also in the company of A-2 along with the unfortunate children of PW5. Except such a solitary circumstance spoken to by PW6 Amarjit Singh, there is no other circumstantial piece of evidence connecting A-3 to the crime as alleged against him. Taking into consideration the concoction of the case as against A-3 by the Investigating agency projecting a false extra judicial confession and the arrest and recovery, we are persuaded to hold that the case put forth as against A-3 is completely doubtful. The benefit of doubt will have to be given to A-3.
Case established by the prosecution
22. As per pollock " it has been said that circumstantial evidence is to be considered as a chain but that is not so, for then, if Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 25 any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight but three stranded together may be quite of sufficient strength."
23. In a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. Secondly those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
24. Just because one chain was cut off, the whole case of the prosecution with other credible circumstantial evidence would not fall to the ground down. If the weight of evidence is such as not to disbelieve the version of the prosecution projected through circumstantial evidence, even if one link of the chain is missing, the case of the prosecution can be believed and conviction can be recorded. The only important aspect is even in the case of missing of one link, the cumulative effect of the evidence should have the capacity to form the chain to clamp the accused with the charge levelled against him.
25. As far as the second accused is concerned the motive part of the case has been established by the prosecution. Though the Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 26 first limb of the last scene theory as regards the second accused projected through PW10 Krishan Lal by the prosecution failed, the prosecution could establish the second limb of the last scene theory through PW6 Amarjit Singh and PW7 Gurnaib Singh. His arrest and recovery of the material objects also would support the case of the prosecution as against him. The failure to establish the extra judicial confession alleged to have been given by the second accused to PW13 Goverdhan Lal does not affect the case of the prosecution as against him. It is to be noted that arrest of A-2 and recovery of material objects from his person and also at his instance were established. The cumulative effect of the circumstances brought on record as against A-3, persuades us to come to a definite conclusion that the second accused who had close intimacy with A-1, kidnapped the minor children of A-1, propelled by his devised intention to exclusively possesseA-1 and murdered the innocent children.
26. Except the telephonic conversation between A-1 and A-2 established by the prosecution there is virtually no material as against the first accused to prove the case of criminal conspiracy, kidnapping and murder of her own children. The material link connecting her to the crime has been completely snapped the moment PW10 Krishan Lal who allegedly spotted her parting with her children to A-2 and A-3 turned hostile supporting not the prosecution case. Further if at all she hatched a conspiracy she would not have alerted her husband before the act conspired was accomplished. She would not have also alerted the tuition teacher Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 27 and participated in the massive search of her children. It is also found to be quite unnatural for a mother to handover her children to cause their cruel death.
27. As already pointed out by us the whole case as against A- 3 revolved around the suspicion entertained by PW5 Rakesh Kumar and A-1. The prosecution has stoopped to such a low level of suppressing the very factum of arrest of A-3 on an earlier date i.e. 26.9.2009 at 1 am at Karanpur in Rajasthan. Totally a false case has been fabricated as against A-3, as though A-3 had in fact given an extra judicial confession to PW13 Goverdhan Lal on 26.9.2009 at 8.30 pm and only on following day on 27.9.2009 A-3 was arrested on a raid of his house conducted by PW12 SI Subash Chander. As the arrest of A-3 itself was found to be a fake one, the recovery made from his personal search and also on the basis of his alleged disclosure statement could not be believed by us.
28. The admissibility of Ex.P41 to P44 was assailed by the learned Counsel appearing for A-2.. Those documents are nothing but computer out put generated from the computer maintained by the mobile company in the normal course of its business. The computer out puts Ex.P41 to Ex.P44 have emanated from the authority who have lawful control over the computer used regularly for storing the calls details. The volumous details found in Ex.P41 to Ex.P44 would go to show that the call details have been regularly fed in the computer in the ordinary course of the activity of the mobile operators. Further the official seal impression of the mobile Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 28 operator is also also found a place on Ex.P41 to Ex.P44. PW16 Surjit Singh and PW17 Sunil Rana, the officials of the mobile company have spoken to those documents. Therefore Ex.P41 to Ex.P44 are very much admissible under Section 65-A and 65-B of the Evidence Act,1872 Further, the accuracy of the contents of those documents is found not doubtful.
29. In view of the above circumstances the first accused- appellant Anita and third accused-appellant Ranjit Kumar Gupta are entitled to acquital.
Murder reference:
30. A-2 is convicted only based on the circumstantial evidence produced by the prosecution. The infatuation he had with A-1 had completely blinded his sense of proportion and ultimately he had committed the cruel murder of the children of PW5 Rakesh Kumar. The murder of the children as such had not been committed in a diabolic or monstrous manner. Both the children had been strangulated to death by A-2. A-2 was just 25/26 years old at the time when he committed the crime. The crime was committed propelled by sexual urge at the young age on account of infatuation towards a woman. Reformation is possible during the long years of his imprisonment in jail. Further if the second accused having spent his prime time in jail comes out after 20 years, he may not be a minace to the society.
31. In view of the above facts and circumstances we are of the considered opinion that the case does not fall under the Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 29 category of rarest of rare cases,which mandates death penalty.But considering the cruel act of the second accused, we are inclined to impose life imprisonment with fine sans remission in sentence for the offence of murder committed by A-2 and we are disinclined to confirm the death sentence imposed on him by the trial Court. Conclusion:
32. As a result, the Criminal appeal bearing No.665-DB of 2010 filed by the first accused Anita alias Arti is allowed and the conviction and sentence awarded to her for the offences punishable under Sections 120-B, 302 read with Section 120-B and 364 read with Section 120-B of the Indian Penal Code by the trial Court is set aside.Similarly Criminal appeal bearing No. 625-DB of 2010 filed by third accused Ranjit Kumar Gupta, is allowed and the conviction and sentence awarded to him for the offences punishable under Sections 120-B, 302 and 364 of the Indian Penal Code, by the trial Court is set aside. Consequently the first accused Anita alias Arti and third accused Ranjit Kumar Gupta are directed to be set at liberty forthwith, if not required in any other case.
33. Criminal Appeal No.861-DB of 2010 filed by Ravinder Singh second accused-appellant stands disposed of in the following manner:
(i) the conviction recorded by the trial Court for the offence punishable under Section 120-B of the Indian Penal Code and the sentence imposed thereunder is set aside but conviction recorded against him for the offences Murder referece No.4 of 2010, Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 30 punishable under Sections 302 and 364 IPC is maintained and the sentence awarded by the trial Court for the aforesaid offences under Section 302 of the Indian Penal Code is reduced to 20 years of rigorous imprisonment sans remission. However the sentence of fine imposed by the trial Court for the aforesaid offence remains unaltered.
Further the sentence awarded by the trial Court for the offence punishable under Section 364 of the Indian Penal Code shall remain unaltered.However, the sentences imposed against the second accused Ravinder Singh shall run concurrently.
34. First accused Anita alias Arti and third accused Ranjit Kumar Gupta are acquitted of all the charges. We are disinclined to confirm the death sentence imposed on the second accused Ravinder Singh by the trial Court. The murder reference is answered accordingly.
( M. Jeyapaul )
Judge
February 22,2011 ( Satish Kumar Mittal )
Judge
1. To be referred to the Reporter or not ?
Murder referece No.4 of 2010,
Criminal appeals No.625-DB, 665-DB and 861-DB of 2010 31 It is true that PW2 Veerpal Kaur and PW6 Amarjit Singh have stated that the accused was found in the Police Station on 25.9.2009 but such a version cannot be true, inasmuch as even as per the version of A-3, he was arrested on 26.9.2009 at 1 am at Karanpur in Rajasthan. ( insert in the arrest of A-2 and A-3)