IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 119 of 2007 With Criminal Appeal No. 46 of 2007 With Criminal Appeal No. 47 of 2007 With Criminal Appeal No. 48 of 2007 With Criminal Appeal No. 121 of 2007 Date of decision : 13th July, 2007 A.F.R. (Approved for Reporting) Not approved for reporting Date : 13.07.2007 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 119 of 2007 Rakesh @ Dhola S/o Sauraj R/o Jhabreda P.S. Jhabreda District Haridwar ..Appellant Versus State of Uttarakhand … Respondent With Criminal Appeal No. 46 of 2007 Rakesh @ Dhola S/o Sauraj R/o Jhabreda P.S. Jhabreda District Haridwar ...Appellant Versus State of Uttarakhand … Respondent With Criminal Appeal No. 47 of 2007 Yogesh @ Marshall S/o Sauraj R/o Jhabreda P.S. Jhabreda District Haridwar ...Appellant Versus State of Uttarakhand … Respondent With Criminal Appeal No. 48 of 2007 Ravi Vas S/o Shri Atar Singh R/o Village Sunehati P.S. Jhabreda District Haridwar ...Appellant Versus State of Uttarakhand … Respondent With Criminal Appeal No. 121 of 2007 Ravi Vas S/o Shri Atar Singh R/o Village Sunehati P.S. Jhabreda District Haridwar ...Appellant Versus State of Uttarakhand … Respondent Mr. Arvind Vashisth, Advocate for the appellant Ravi Vas. Mr. K.S. Verma, Advocate with Mr. R.K.S. Verma, Advocate for Rakesh @ Dhola and Yogesh @ marshall. Mr. G.S. Sandhu, learned Government Advocate with Mr. Amit Bhatt, learned A.G.A. for the respondent/State. Coram: Hon’ble Rajeev Gupta, C.J Hon’ble J. C. S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. Since all criminal appeals have arisen out of the common impugned judgment and order dated 05.02.2007 passed by Addl. District Judge, Roorkee in S.T. Nos. 296 of 2002, 297 of 2002, 252 of 2003 and 367 of 2005, hence all these appeals have been heard together and are being disposed of by this common judgment. By the impugned judgment and order, the appellants-Ravi Vas, Rakesh @ Dhola and Yogesh @ Marshall were convicted under sections 364 IPC, 302/34 IPC & 201 IPC and each of them were sentenced to undergo 7 years R.I., imprisonment for life and 5 years respectively. Each of the appellants were further directed to pay fine of Rs. 500/-, Rs. 2000/- and Rs.500/- on each counts respectively and in default of payment of fine the appellants were to undergo for further six months R.I., 1 year R.I. and 6 months R.I. Respectively. The appellant Ravi Vas was also convicted and sentenced to undergo for one year R.I. and a fine of Rs.500/- under section 25 of Arms Act. In default of payment of fine of Rs.500/-, the appellant Ravi Vas was to undergo for further 15 days R.I. The appellant Rakesh @ Dhola was also convicted and sentenced to undergo for one year R.I. and a fine of Rs. 100/- under section 25/4 Arms Act. In default of payment of fine of Rs. 100/-, the appellant- Rakesh @ Dhola was to undergo for further 15 days R.I. However, the appellants Ravi Vas, Rakesh @ Dhola and Yogesh @ Marshal were acquitted from the charges under sections 147 & 148 IPC. Co-accused Shivram was acquitted of the charges leveled against him. 2. Brief facts of the case are that complainant Krishna Chandra Garg PW1 lodged a gumsudgi report Ex.Ka.2 of his son Yogesh Kumar on 27.10.2001 alleging therein that his son Yogesh Kumar, L.I.C. agent, has left for Roorkee on 25.10.2001 at about 9.00 am, but he did not return from there. It was learnt that on 25.10.2001 at 6:30 p.m., he took bicycle of one Ram Singh from Iqbal Pur Sugar Mill Colony and left for Jhabreda. Thereafter, a thorough search was made. When he was not found, Krishna Chandra Garg lodged an F.I.R. Ex.Ka.1 at P.S. Jhabreda on 08.01.2002 alleging therein that he lodged a gumsudgi report of his son on 27.10.2001. On 07.01.2002 he went to village Delana where he was informed by one Aman Singh PW2 that after 2- 3 days of Dussehra he saw Yogesh Kumar going towards ‘Sunheti’ Jungle in the company of Rakesh @ Dhola, Yogesh @ Marshal, Shivram, Mursleen and Ravi Vas. Aman Singh PW2 also told the complainant that he did not disclose this fact to anyone due to fear. Aman Singh PW2 further told him that he knew the aforesaid persons and advised him to make search of his son. On the basis of the F.I.R., a chick report was prepared and necessary entry was made in the General Diary vide Ex.Ka.9. The investigation of the case was entrusted to S.I. Suraj Bhan PW8. The then S.O. Jhabreda Vimal Chandra PE9 arrested the accused Ravi Vas and Rakesh @ Dhola on 08.01.2002 and a country made pistol and a cartridge were recovered from the personal search of accused Ravi Vas whereas from the personal search of Rakesh @ Dhola, a knife of prohibited size was recovered. Thereafter, both the accused/appellants were interrogated by the police. The dead body (human skeleton) was recovered from the sugarcane field of one Babu Ram at Sunheti at the pointing out by the accused/appellants Ravi Vas and Rakesh @ Dhola. The said human skeleton (dead body) was identified by the informant Krishna Chandra PW1 as Yogesh Kumar. Thereafter, the investigation was transferred from S.I. Suraj Bhanu PW8 to the then S.O. Vimal Chandra PW9 in the month of February, 2002 and he started the investigation of the case after the perusal of the case diary and he recorded the statement of the witnesses. The Investigating Officer after completing the necessary formalities of the investigation submitted the chargesheet before the court. He submitted the chargesheet against Ravi Vas, Rakesh @ Dhola and Yogesh @ Marshall u/s 147, 148, 149, 364, 302 & 201 I.P.C. He further indicated in the chargesheet that the accused Shiv Ram and Mursleen are not traceable, as such, proceedings u/s 82 and 83 Cr.P.C. is going on against them. No chargesheet was submitted against the accused Shiv Ram and Mursleen. It is also revealed from the record that later on a separate chargesheet was filed against accused Shiv Ram. 3. After submission of chargesheet the accused/appellants were committed to the court of Sessions for trial and the trail court framed charges against the accused persons. They denied the charges levelled against them and claimed their trail. 4. The prosecution in support of its case examined eleven witnesses. Krishna Chandra Garg PW1 is father of deceased Yogesh Kumar. He lodged gumsudgi report and F.I.R. (Ex.Ka.2 and Ex.Ka.1 respectively). Aman Singh PW2 is the witness who saw the accused persons taking the deceased towards the field of sugarcane. This witness has disclosed this fact to the father of the deceased Krishna Chandra Garg PW1. Bhram Pal Singh PW3 and Shyam Lal PW5 have proved the factum of recovery of the dead body of deceased from the sugarcane field of Babu Ram at the pointing out of accused/appellants Rakesh @ Dhola and Ravi Vas. Praveen Kumar PW4 is the scribe of the reports Ex.Ka.1 and Ex.Ka.2. He scribed the report on the dictation of Krishna Chandra Garg PW1. Surendra Kumar PW6 & also Bhram Pal Singh PW3 have proved the factum of discovery of spade and chain from the field of Baburam at the pointing out of Yogesh @ Marshall. Dr. Suresh Kumar Chauhan PW7 is the medical officer who conducted the postmortem of the deceased. Suraj Bhanu PW8 is the Sub Inspector who investigated the case in part. Vimal Chandra PW9, Station Officer is also the Investigating Officer of this case and he completed the rest of the investigation and submitted the chargesheet. Constable Hitler Singh PW10 is a formal witness of police. S.I. Govind Singh Manola PW11 has investigated the case against the accused-appellants Ravi Vas and Rakesh @ Dhola under Arms Act and submitted the chargesheets Ex.Ka.24 and Ex.Ka.25 against the accused/appellants Ravivas and Rakesh @ Dhola. 5. The accused/appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated tat they have been falsely implicated due to enmity. 6. The learned trial court on appreciation of the evidence convicted the accused/appellants and sentenced them as mentioned above. Co-accused Shivram was not found guilty of the offence charged against him in S.T. No. 252 of 2003 and he was accordingly acquitted. 7. We have heard learned counsel for the parties and perused the record. 8. At the outset, it needs to be mentioned here that the prosecution has adduced the evidence of Dr. Suresh Kumar Chauhan PW7, who received the dead body of Yogesh Kumar in sealed condition and conducted the postmortem on 09.01.2002. After examination of the dead body, Dr. Suresh Kumar PW7 has written the following remarks on the postmortem report:- “Body skeleton except left leg and foot belonging to human being. No soft tissue except few part buttock and right lower limb. Soil presents all over the body. No maggot present. Nails are missing. Skull bones are separated to each other. But belongs to human and one person. No cut mark on bines of skulls.” Dr. Suresh Kumar Chauhan PW7, Medical officer has opined that the deceased was about 35 years old. After conducting the postmortem of the dead body, the medical officer has handed over mandible and upper jaw, left clavicle, left humerus, left pelvis and left femur to the constable in sealed condition. In addition to this, the medical officer has also handed over torn white black lined shirt, torn trousers and paint drenched with black soil to the constable. It was also stated by the medical officer that there were 9 teeth in upper jaw and 11 or 4 in the lower jaw. In the opinion of Medical Officer, the cause of the death of the deceased could not be ascertained hence bones were preserved. It was further opined that the duration of death was about 2 months before. 9. The prosecution has led the evidence that skeleton was identified by the father of the deceased Krishna Chandra PW1 by the apparels which the deceased was wearing at the time of leaving his house. The same apparels were recovered from the skeleton at the time of the recovery. It was pointed out that the father of the deceased also identified his son by one missing tooth and the said description has not been indicated in the F.I.R. When the missing report was lodged, only the apparels and outwardly description have been mentioned in the missing report. While submitting the missing report at the police station, the father of the deceased was not aware that his son had been murdered. As such, he has given the outwardly description of the apparels of his son by which any person could identify who saw him at the outset. The apparels which the deceased was wearing at the time of leaving his house was recovered from the skeleton, as such, the dead body was identified by the father of the deceased. Therefore, it is established that the death of Yogesh Kumar S/o Krishna Chandra PW1 has occurred. 10. Now, we have to consider whether the accused- appellants were responsible for committing the murder of the deceased- Yogesh Kumar. There was no eyewitness of the occurrence. It needs to be mentioned here that the prosecution case rests upon the circumstantial evidence. The law which is fairly settled about circumstantial evidence is that it would be such as to point out only to the guilt of the accused and the evidence should exclude all other hypothesis except the guilt of the accused. It is often said that though witnesses may lie, circumstances will not but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In order to sustain conviction on circumstantial evidence, each of the incriminating piece of circumstantial evidence should be proved by cogent and reliable evidence and the court should be satisfied that the piece of evidence taken together forge such a chain wherefrom no inference other than the guilt can be drawn. 11. Learned counsel for the appellants contended that the evidence of the prosecution was not of such character which could inspire confidence and to indicate the chain of circumstances which lead to the only conclusion that none else except the appellants had committed the crime. Learned G.A. refuted the contention. Learned counsels for the parties have taken us though the evidence of the prosecution. 12. The first circumstance projected by the prosecution against the accused-appellants is that the deceased Yogesh Kumar was seen in the company of the accused after 2-3 days of the Dussehra in the year 2001 by Aman Singh PW2. The prosecution has adduced the evidence of Aman Singh PW2 who has seen the accused-appellants Ravi Vas, Yogesh @ Marshall, Rakesh @ Dhola, Sriram and Mursleen dragging the deceased Yogesh Kumar at Sunheti jungle when he was coming to his village from Sunheti on his motorcycle. Aman Singh PW2 has further stated in his evidence that he went to village Sunheti in his motorcycle to see and purchase buffalo. He has deposed that the wearing apparels of the deceased were soaked with mud. He has further deposed that he knew the accused persons but he has not disclosed this fact to anyone due to fear. This witness has further stated that when he has seen Krishna Chandra Garg PW1 in a very perturbed condition is connection with his missing son sitting at the shop of Sitaram after 2-1/2 months after the incident, he disclosed to him that he had seen the appellants dragging the deceased Yogesh Kumar at Sunheti jungle after 2-3 days of Dussehra. He has narrated the entire story to him. 13. The trial court has dis-believed the evidence of Aman Singh PW. The trial court has held that Aman Singh PW2 went to village Sunheti to purchase buffalo but he did not remember the name of the persons where he has seen the buffalo for purchase. The trial court has further disbelieved the evidence of Aman Singh PW2 on the ground that he could not state in his cross examination as to how long he knows Krishna Chandra PW1, father of the deceased Yogesh Kumar. The trial court has further held that Aman Singh PW2 has stated in his evidence while coming from village Sunheti, he saw the accused persons dragging the deceased Yogesh Kumar from a distance of about ½ furlong. He has further stated that he has seen the accused/appellants & co-accused from the back side. The time of the occurrence has been alleged to be 6:00 or 6:30 p.m. in the evening. The trail court has further held that Aman Singh PW2 could not have recognized the accused and the victim from the back side at a distance of ½ furlong at about 6:00 or 6:30 pm. particularly in the month of October & November. The trial court has further disbelieved the testimony of Aman Singh PW2 on the ground that he did not disclose this fact to anyone either in the village or his family members. It is in the evidence that he made the disclosure of the above fact for the first time after 2-1/2 months to the father of the deceased Yogesh Kumar. The learned trial court has discarded the evidence of Aman Singh PW2 on the above broad features. The reasons given by the trial court are cogent and go a long way in creating doubt about the evidence of Aman Singh PW2. The trial court has given cogent reason as stated above and we are completely in agreement with the findings recorded by the learned trail court discarding the evidence of Aman Singh PW2. We do not find any fault in the approach of the trial court while discarding the evidence of Aman Singh PW2. In view of the above, the first circumstance projected against the accused/appellants is not proved beyond reasonable doubt. 14. Whereas the motive of the commission of the offence is concerned, the learned counsel for the accused/appellants contended that the prosecution has not adduced any evidence with regard to the motive of the incident. Learned G.A. refuted the contention. The learned trial court has held that there was a motive to commit the offence. The learned trial court has relied upon a G.D. entry in which it has been recorded by the police officer that the accused were hopeful that they would get 4-5 lacs in the abduction of the deceased Yogesh Kumar as ransom because he was a Life Insurance Agent. It was further held by the learned trial court that the deceased Yogesh Kumar was kept 10-1 days in custody and the accused tried to contact to get the ransom from his family members but they could not get contact with them. Meanwhile, the deceased fell ill so the accused/appellants killed him. The learned trail court fell in error wile relying upon the G.D. entry recorded by the police officer on the statement of the accused. We have gone through the entire evidence on record and found that there is not even an iota of evidence about demand of ransom from family members of the deceased Yogesh Kumar. The learned trial court has relied upon the G.D. entry which could not be taken into account. The learned trial court fell in error in holding that there was motive to commit the offence in absence of any admissible evidence on record. This case rests on the circumstantial evidence. It is settled position of law that if the prosecution has failed to establish the motive when the ocular testimony of eyewitnesses is so strong, credible and cogent, the motive become inconsequential. This case does not rest on the direct evidence of the eyewitnesses. It rests on the circumstantial evidence. Motive by itself is not sufficient to prove the guilt of accused but at the same time in the case of the circumstantial evidence if the prosecution proves by cogent evidence that there was a motive to commit the offence, it adds a link to the circumstances projected against the accused. In this case, there is no motive. The absence of motive also leads to take an inference as to why the accused would cause the death of the deceased Yogesh Kumar. 15. The next circumstance projected by the prosecution is that the dead body was recovered at the pointing out of the accused Ravi Vas and Rakesh @ Dhola. The prosecution has led the evidence of S.I. Suraj Bhanu PW8 who has stated in his evidence that the S.O. Concerned of the police station arrested the accused Ravi Vas and Rakesh @ Dhola and he made the interrogation of the accused/appellants. Thereafter, the accused/appellants Ravi Vas and Rakesh @ Dhola confessed their guilt. G.D. No. 17 was recorded by the S.O. Perusal of the G.D. No. 17 reveals that accuses/appellants Ravi Vas and Rakesh @ Dhola disclosed the fact that they can discover the skeleton from the place where it has been kept. The said fat was confirmed by the accused/appellants Ravi Vas and Rakesh @ Dhola. The prosecution also produced the evidence of Bhram Pal Singh PW3 who has stated in his evidence that the deceased Yogesh Kumar s/o Krishna Chandra PW1 had been working as Insurance Agent. He has further stated in his evidence that the dead body was recovered from the sugarcane field of Babu Ram on 08.01.2002 at about 2:30 or 2:45 p.m. when it was dug out by the accused/appellants at the pointing out of accused/appellants Ravi Vas and Rakesh @ Dhola. He has further stated that Krishna Chandra PW1, father of the deceased and he had identified the dead body of the deceased by missing tooth of upper jaw and by the apparels which the deceased was wearing. He is also the witness of the recovery of dead body and signed the recovery memo of the dead body Ex.Ka.4. Thereafter the police took the dead body in its custody and prepared the panchayatnama. He has further stated that he has signed on panchayatnama. Shyam Lal PW5 has also corroborated the evidence of Bhram Pal Singh PW3 and he is also the witness of the recovery of the dead body and he signed the recovery memo Ex.Ka.4. He is also the witness of panchayatnama. Both the witnesses have stated that the father of the deceased was also present at the time of the recovery. The body was identified by the father of the deceased at the spot. 16. Now it has to be seen whether the evidence of the recovery of skeleton is reliable or not. The learned trial court has believed the evidence of the prosecution of recovery of the dead body at the instance of accused/appellants Ravi Vas and Rakesh @ Dhola. Section 27 of the Indian Evidence Act lifts the ban against the admissibility of the confessional /statement made to the police to a limited extent by allowing proof of information of a specified nature furnished by the accused in police custody. Section 27 of Indian Evidence Act is an exception to the rules embodied in Section 25 and 26. The prosecution has to prove for taking the benefit of Section 27, the police officer should depose before the court that he discovered the fact in consequence of the information received from accused persons in police custody. This fact must be disclosed by the accused at the first time to the police officer. It this fact was within the knowledge of the police officer prior to the discovery statement, the prosecution cannot take the benefit of the said statement for getting the recovery by the accused on the basis of said statement given to the police. It is only so much relates to the distinctly to the fact thereby discovered that can be proved and nothing more. The court while appreciating the evidence would exclude the rest of the information given by the accused to the police officer except information as relates distinctly to the fact thereby discovered. The Apex Court in Anter Singh Vs. State of Rajasthan 2005 SCC (Cri) 597 has held as under :- “15. At one time it was held that the expression “fact discovered” in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya V. Emperor, AIR 1947, PW67and in Udai Bhan v. State of U.P. AIR, 1962 SC 116. 16. The various requirements of the section can be summed up as follows: (1) the fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancey. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancey of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused ad not by the accused’ own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates