IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Crl. Jail Appeal No. 126 of 2002 Date of decision 4 December, 2004 For the approval of: Hon'ble Chief Justice V.S. Sirpurkar. Hon'ble Mr. Justice Rajesh Tandon. - Whether the order/judgment should be sent to the reporters for reporting? ( ) - Whether reporters be allowed to see the judgment? ( ) G IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Crl. Jail Appeal No. 126 of 2002 Surendra Kumar, S/o Ram Krishan, R/o Village Damoli, Tehsil & P.S. Chachroli, District Yamunanagar, Haryana. .........Appellant Versus State .......Opposite party Mr. S.K. Mishra, learned Amicus Curiae for the appellant. Mr. D.K. Sharma, learned government Advocate for the State. Coram: Hon'ble V.S. Sirpurkar, C.J. Hon'ble Rajesh Tandon,J. Date: 4 December, 2004 Per Hon'ble Rajesh Tandon, J. By the present appeal, the accused Surendra Kumar has challenged his conviction under Section 302 I.P.C. read with Section 201 I.P.C. and Section 34 I.P.C., by which the learned Sessions Judge has awarded him rigorous imprisonment for life along with co-accused Harinath. Here, were concerned with only accused Surendra Kumar as only he has preferred the present appeal before us. 2. Briefly stated the prosecution story was that on 28.12.1999, a written report was lodged by one Rajesh Kumar, who was associated with Ved Niketan Dham Ashram, to P.S. Laxman Jhula stating therein that one Jemison Rassel (deceased), an American citizen was staying in room No. 91 of the Ashram, Further, it has been stated that on 23.12.1999, the two friends of the said American, namely, Hillary and Autam came and enquired about the room, in which their friend Jemison Rassel (deceased) was staying. On this he, along with the two women, namely, Hillary and Autam, reached room No. 91 and found the room locked from outside. On 26.12.1999, when the said Jemison Rassel (deceased) did not return to Ashram, he opened room No. 91 on the insistence of the said women friends and then, in the said room, one bag (thaila), a watch, a Tiffin, three books, one dairy, one pent, one T-shirt and one driving license was found. So far as the driving license is concerned, the said two women friends kept it with themselves for photocopy and the rest of the articles were kept in that room. Since, the said American citizen has not returned in the Ashram, therefore, the said information was given. 3. On 4.01.2000 at about 9:10 in the night, Dr. J. Arum Raja Silwan dictated a report in English to Anil Srivastava, who translated it in Hindi and lodged the report at Police Station Laxman Jhula under Section 365 I.P.C According to the First Information Report, Dr. J. Arum Raja Silwan was the co- ordinator of Sita Pragramme (South India Term Abroad) at Madurai, in which American students were participating. In the year 1999, one American student, namely, Jemison Rassel (deceased) also participated an on 20.12.1999, he came to Ved Niketan Ashram and stayed in room No. 91, where the two women fiends, namely, Hillary and Autam came to meet Jemison Rassel. The prosecution story also reveals that on 25.12.1999 Hillary informed Silwan on telephone that the whereabouts of Jemison Rassel are not known and on this, Silwan along with his assistant came to Laxman Jhula on 28.12.1999 and with the cooperation of the Police Authorities, he searched the said American citizen, namely, Jemison Rassel (deceased), but nothing was found. The investigation was done by Kailash Tewari, who was the In-charge of the Police Station, Laxman Jhula and during the investigation, one Vijay Singh Dhakad (P.W.4) informed that on 22.12.1999, one Surendra Kumar came to his shop along with seven cheques of 20 dollars each, but there was no signature and passport number on that cheques and therefore, the said cheques could not be cashed. On the basis of this information, on 6.01.2000, Surendra Kumar was arrested and at the instance of Surendra Kumar, the two books of the deceased Jemison Rassel and empty bottle of wine was recovered from the Hut (Kutiya) of the co-accused Harinath. Besides this, one bag (thaila), Muflar and one pair of Chappal was also recovered, which were lying beneath the stone on the bank of Ganga River. On 24.01.2000, the co-accused Harinath was also arrested and from his possession, a camera and a photocopy of the passport of Jemision Russell (deceased) was recovered and on the same day, at the instance of co- accused Harinath, the dead body of Jemison Russell was also Recovered from the river. On interrogation from the accused persons the Investigating Agency revealed that Jamison Russell was done to death by accused Harinath by strangulation with the help of accused Surendra Kumar inside his Kutia at Laxmanjhoola. 4. A charge-sheet was submitted under Section 302/34 I.P.C. and 201/34 I.P.C. against the accused Surendra Kumar and Harinath. Before the Sessions Judge, both the accused pleaded not guilty and claimed to be tried. To prove its case, the prosecution has examined, in all 8 witnesses. 5. Prosecution has examined Anil Srivastava (PW1), who has deposed that in December, 1999 the American Embassy has lodged a report regarding the absconding of the American citizen and Dr. J. Arum Raja Silwan did not know the Hindi and he dictated the First Information Report (Ex. Ka. 1) in English and he translated the same in Hindi. 6. Dr. J Arum Raja Silwan was examined as PW2, who has deposed that he was organizing the Sita Programme as a co- ordinator and from August, 1999 he was doing this and from America, the students were coming to Madurai for study of Hinduism, Indian culture etc. In the first week of August, 1999 one Jemison Rassel (deceased) came from America and stayed with the Sita Programme till the first week of December, 1999 at Madurai. After that, he started visiting the other places and two other students, namely, Hillary and Autam also supposed to Meet hi on 24.12.1999 at Rishikesh. Jemison Rassel (deceased) was staying at Ved Niketan Ashram and the said two women went to meet him there and them, they informed on telephone regarding the fact the at the whereabouts of Jemison Rassel are not known and then on 28.12.1999, he came along with his assistant at Rishikesh and he enquired about Jemison Rassel. When, up till 4.01.2000 Jemison was not found, then, he lodged the First Information Report (Ex.Ka. 1) at Laxman Jhula. 7. Rajesh Kumar (PW3) was also examined, who is the Care- taker of the Ashram, who has deposed the fact that according to the passport, Jemison Rassel (deceased) came to India on 6.08.1999 and he was staying in Room No. 91. 8. Prosecution has further examined PW4 Vijay Singh Dhakad. He has deposed that he sued to get encashment of travelers cheques at his shop. On 22.12.1999 one of the disciples of Baba Harinath namely Surendra Kumar came to his shop along with seven cheques of 20 dollars each, which were in the name of Jemison Rassel. The said cheques were without the passport number and signatures, therefore, he did not purchase them. Surendra Kukmar was arrested near Chuden Ghat and he has further stated that on the information of Surendra Kumar, the articles were recovered from the Kutiya and Surendra Kumar has also helped the prosecution in getting one pair of Chappal, muflar etc. Narain Dutt Narang (PW5) has also Deposed that Surednra Kumar has informed that his Guru was involved in the murder and the articles are lying in the Kutiya. 9. Dr. O.P. Sharma (PW7) is the one, who conducted the post-mortem and the following two injuries were found on the body of the deceased: i. blue spot 8 c.m. x 3 c.m. in the front portion of neck. ii. Many blue spots, which were joined together in the area of 10 c.m. x 8 c.m. in the upper right portion of chest. 10. The prosecution has further examined Ved Pal Singh (PW7), who was posted at Police Station Laxman Jhula. He has deposed about the recovery of two English Books, bag, muflar, one pair of chappal etc. at the instance of accused Surendra Kumar. 11. Further, Kailash Panwar (PW8) was also examined, who has deposed that he was posted in December, 1999 up to 2000 at Police Station Laxman Jhula, where on 28.12.1999, one Rajesh Kumar has lodged the First Information Report (Ex. Ka. 3) regarding the absconding of Jemison Rassel (deceased) and therefore, on 4.01.2000, Dr. J. Arun Raja lodged the written Report (Ex. Ka.1) and as such, the case was registered under Section 365 I.P.C. 12. The accused Surendra Kumar in his statement under Section 313 CrPC. has denied the prosecution’s allegations. Two specific questions were asked from Surrendra Kumar to the following effect: iz'u% vfHk;kstu lk{; esa vk;k gS fd foospd us vki lqjsUnz dqekj ls iwNrkN dh rks vki lqjsUnz dqekj us crk;k fd tsfelu fnukad 20-12-1999 dks ckck lhrkjke ds lkFk] ckck gfjukFk dh dqfV;k esa vk;k rFkk fpye o pk; ih vkSj vxys fnu [kkus dh ckrs gq;h] blds ckn tsfelu o ckck lhrkjke pys x;s] vkidksa D;k dguk gS/ mRrj% xyr gSA iz u% vfHk;kstu lk{; esa vk;k gS fd tc vki lqjsUnz dqekj 'kjkc ysdj okil vk;k rks tsfelu] ckck oklqdh ukFk o ckck gfjukFk cSBs Fks vkSj rhukas us 'kjkc ih rFkk vki lqjsUnz dqekj us [kk;k cuk;k] lc us [kkuk [kk;k rc ckck oklqdh ukFk pys x;s vkSj ckck gfjukFk o tSfelu cSBs jgsA nksukas us 5&6 iSd vkSj 'kjkc ihA vkidks D;k dguk gS / mRrj% xyr gS A Accused Surendra Kumar in his statement has also stated that police has falsely implicated him in this case after taking him from Ambala. Accused appellant has also examined Sardara Ram son of Joona Ram, resident of Kher Ki-Jatan, P.S. Narayangarh, District Ambala as D.W.1 in defence. He states as under: Yk{e.k>wyk Fkkuk ds iqfyl okys 4-1-2001 dks lkW; ds yxHkx 7 cts eqyfte lqjsUnz iq= jkefd'ku dks grkjs xkWo ls fxjQrkj djds ys x;s FksaA This witness has stated that he police party of Laxmanjhoola Police Station had arrested accused Surendra Kumar on 4.1.2001 at 7.00 PM at his village Kher-ki-Jatan. This witness has proved his signature as well as the signatures of Chameli Ram, Ranjit Kumar and Sukhdev Singh on paper no. Ex.Kha-1. 13. The trial Court has convicted accused Harinath and Surendra Kumar under section 302 read with sec. 34 I.P.C. and Section 201 read with Section 34 I.P.C. vide judgment and order dated 7.5.2003, against which the present appeal has been preferred by accused Surendra Kumar only. 14. The conviction of the accused appellant is based on the circumstances three fold. The first circumstance is the discovery of the belongings of the deceased at the pointing out of accused Surendra Kumar. The prosecution has adduced evidence to prove that recovery of the books and an empty bottle of liquor was made at eh instance of the accused Surendra Kumar and recovery of the dead body of deceased was made at the pointing out of accused Hari Nath. 15. To prove the discovery under section 27 of the Evidence Act, the prosecution has examined S.I. Vedpal Singh 7. This witness has stated that on the pointing out of witness Vijai Dhakar, they apprehended accused Surendra Kumar near Pashulok Bairaj, Rishikesh. On inquiry Surendra Kumar confessed his guilt and had stated that he and his Guru Baba Harinath committed murder of Jamison Russell in their Kutia by strangulation and has thrown the dead body into the river. Accused Surendra Kumar had also informed that some belongings of the deceased had also been kept by them inside the Kutia and on the pointing out of the accused two books, one bag, a pair of chappal and muffler were recovered. This witness also proved recovery memo Es.Ka.-5 and material Ex. 8 bag, Ex.2 Chappal and Muffler Ex. 7 However, from the cross examination of this witness it is evident that the investigating agency has not followed the procedure of search and discovery prescribed under Section 27 of the Evidence Act. This witness in his cross examination has admitted as under: QnZ izn'kZ d-5 esa ge deZpkfj;ksa rFkk xokgku dk ,d nwljs dks ryk'kh nsus ds ckjs esa ugha fy[kk gSA ;g lgh gS fde lqjsUnz dks fxjQnkj djus ls igys mlus tks dgk Fkk mls ge yksxksa us dgh fy[kk ugha Fkk] ckck gjhukFk dh fxQrkjh ds le; tks gjhukFk us crk;k Fkk mls dgh fy[kk ugha FkkA Ekky cjken djus ls igys Hkh dksbZ QnZ ge yksxksa us eqyfte ds LsVsesaUV ds ckjs esa ugha cuk;h Fkh 16. The prosecution has also examined P.W. 8 S.I. Kailash Panwar. This witness has supported the statement of S.I. Vedpal Singh. He has stated in his examination in chief that in December 1999, he was posted as Station Officer, Laxmanjhoola. He has stated that during investigation he recovered two books and a empty bottle of liquor at the instant of accused Surendra Singh from the kutia of Harinath. He has also stated that Surendera Singh had pointed out the place where they thrown the dead body of the deceased but dead body could not be recovered from that place. He has submitted that the dead body was recovered from the river at the instance of co- accused Harinath. This witness has also stated that accused Surendra Kumar also got recovered a bag, a pair of sandal and a Muffler which was kept under a stone at riverbank. P.W.8 has proved recovery memo Ex.ka-5. 17. The prosecution has also examined public witnesses to prove discovery under section 27 of the Evidence Act. P.W.4 Vijai Singh Dhakar is a shop-keeper at Rishikesh. In his examination-in-chief this witness has stated that two books were recovered form the Kutia of Harinath at the instance of accused Surendra Kumar. He also proved books Ex.4 and Ex.5 he has further stated that accused Surendra also got recovered a bag, empty bottle, a pair of chappal and a muffler from the riverbank. This witness also proved Ex.6, 7 and 8. However, in his cross examination this witness has categorically denied that any recovery memo was prepared by the police at the time of recovery. He has also stated no paper was prepared in writing regarding the arrest of accused Surendra Kumar and information given by him regarding belongings of the deceased. This in view of the admission made by this witness in his cross examination that no recovery memo was prepared at the time of alleged recovery of the articles belonging to the deceased, the discovery under Section 27 of the Evidence Act has become worthless. In his cross examination he states as under: fxjQrkjh ds le; ekSds ij dksbZ ,slk dkxt ugha cuk ftlesa eky cjken djkus okyh ckr eqyfte us crkbZ gks vkSj u ekSds ij gh eqyfte }kjk cjken djkus dk dksbZ dkxt gh cuk;k FkkA 18. The prosecution has also examined Sri Narayan Dutt P.W.5 which is another witness of discovery. This witnesses has stated in his examination-in-chief that accused Surendra Kumar has confessed his guilt and had stated that he and his Guru had committed murder of the Englishman. Accused Surendra Singh got recovered one empty bottle of liquor and two books from the Dhooni. This witness has also stated that accused Surendra Kumar also got recovered a muffler, one bag And a pair of chappal from the riverbank. P.W.5 Narayan Dutt has also stated that divers from the river on 23.1.2000 searched dead body of the deceased but the dead body could not be recovered. On 24.1.2000 dead body was recovered at the instance of accused Harinath. His statement in this respect is quoted below: Fkkus ij ckck gjhukFk ls iwNk fd tsjhlu dh yk'k dgkW Qsdh rc gjhukFk vkxs vkxs pydj xaxk unh ds fdukjs igqWpk gekjs lkFk fefyV~h ds dSIVu vkSj deZpkjh Fks tks tsjhlu dh MsMckMh dks <w< jgs FksA rc gjhukFk us xaxk ds fdukjs [kM+k gksdj ,d iRFkj Mky dj crk;k fd ;gkW cksjk Qsadk gS dSIVu o mlds lkFk mlds Vhe ds lnL; Fks xaxk esa xksrk yxk;k vksj dSIVu 3&4 feuV ckn unh ls ,d cksjk fdukjs ij ysdj vk;k cksjk VkV dk Fkk cksjk [kkyus ij tks yk'k fudyh mls ns[kdj dgk fd ;gh tsjhlu dh yk'k gSA In his cross-examination this witness has stated that when he was coming to his home from his shop police party met him near Swargasharm. Accused Surendra Singh was with them. This witness has stated that no recovery memo was prepared at the Kutia of Harinath from where the belongings of the deceased were recovered. In his cross examination this witness has also stated that on 23.1.2000 and 24.1.2000 like other public persons he had also gone to riverbank from where the dead body of the deceased was recovered and police asked him to become witness for the recovery of belongings of the deceased and the dead body. He states as under: dqfV;k ls tks eky cjken gqvk mlds ckjs esa mlds iwoZ dFku ds ckjs esa fy[kk i<+h Hkh dqfV;k esa ugha gqbZ FkhA Thus this witness has completely disowned his statement made in his examination-in-chief and his statement cannot be made basis to convict the accused appellant Surendra Kumr. 19. Thus there remain the statements of only police witnesses regarding recovery of articles belonging to the deceased at the pointing out of accused Surendra Kumar. However, no proper and legal identification of the recovered articles was made by the police from any witness of the family of deceased or from any friend of the deceased and even if it is assumed that one pair Chappal, books and an empty bottle of liquor were recovered at the instance of accused Surendra Kumar, even then without following the legal procedure of recovery and proper identification of the articles, recovery of such items is not a circumstance to fasten the guilt of murder on the accused Surendra Kumar. This is apart from the fact that some articles were shown to have been recovered from the open places like the riverbank. We, therefore, do not propose to rely on the said discovery evidence. The trial judge has completely missed this important aspect and has presumed that the Chappals, muffler and the books belonged to the deceased. 20. It has also come in evidence that the books were recovered after the "Dhuni" was dug. In our opinion the books could never have remained intact, if the fire was lit over the portion where the books were buried. Even this aspect was missed by the trial Court. 21. Relying on the decision in the case of Delhi Admn. Vs. Bal Kishan reported in 1989 Supp.(2) SCC 351 and Mohd. Inayatuallah vs. State of Maharastra reported in 1976(1) SCC 828, the Apex Court, in the case Bodhraj vs. State of J & k (2002) 8 SCC 45, while dealing with the recovery of section 27 of the Evidence Act, held as under: "Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short "the Evidence Act") is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against he accused. This position was succinctly dealt with by this Court in Delhi Admn. Vs. Bal Kishan and Mohd. Inayatuallah vs. State of Maharastra. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate" It is, therefore, clear that a discovered article must have a nexus with the crime. That precisely is wanting in this case. In the present case the prosecution has utterly failed to establish the identity of the articles discovered by accused Surendra Kumar. This the circumstances of discovery under section 27 of the Evidence Act, does not go to help the prosecution case in any way so far as the accused Surendra Kumar is concerned. 22. The second circumstance on which the Sessions Judge has relied is the statement of Surendra Kumar given by him during interrogation by the police. A perusal of the judgment of the Sessions Judge shows that the Sessions Judge based his finding on the statement made by accused Surendra Kumar under section 161 Cr.P.C. before the Investigating Officer, treating it to be an extra judicial confession. The prosecution has tried to bring the statement of the accused on record by the statements of Investigating Officer P.W.8 Kailash Panwar and P.W. 7 S.I. Vedpal Singh. P.W.8 Kailash Panwar in his examination-in- chief states as under: eSaus fxj¶rkjh izn'kZ d&4 rS;kj fd;k vkSj ekSds ij gh lqjsUnz dqekj ls iwNrkN dh vkSj c;ku fn;k lqjsUnz dqekj us crk;k Fkk fd fn0 20-12-99 dks tsfelu jlS D;qjsu uke dk ,d vesfjdu ukxfjd ckck lhrkjke uked lk/kw ds lkFk gekjh dqfV;k ij lka; djhc 5-30 cts vk;k Fkk ogka ij tsehlu o lhrkjke us esjs xq: gjhukFk o esjs lkFk fpye ih] eSaus lcdks pk; Hkh fiyk;h Fkh gjhukFk us tSehlu dks vxys fnu vkus ds fy, dgk Fkk rFkk lkFk&2 [kkus ihus dh ckrphr gqbZ Fkh dqN nsj ckn lhrk jke vkSj tsehlu dqfV;k ls pys x;s Fks fn0 21-12-99 dks lqcg 10 cts tSehlu gekjh dwfV;k ij vdsyk vk;k vkSj gjhukFk o esjs lkFk fpye o pk; ihus ds ckn ogha dqfV;k ds ckgj cSB x;k o fdrkc i<+us yxk] esjs xq: gjhukFk us tsehlu ls :0 200@& fy,] vksj le; 11-30 cts ds djhc eq>s jk;okyk vaxsth 'kjkc ysus Hkst fn;k] eSa cSxikbij dh ,d 'kjkc dh cksry ysdj djhc 1-30 cts fnu jk;okyk ls okij dqfV;k ij vk;k rc dqfV;k esa esjs xq: gjhukFk o ckck oklqdh ukFk o tsehlu cSBs ckrphr dj jgs Fks eSaus jk;okyk ls ykbZ 'kjkc dh cksry xq: gjhukFk dks ns nh] gjhukFk us eq>ls 3 fxykl eaxok;s og rhuksa 'kjhjc ihus cSB x;s] eSa [kkuk cuokus yxk bl chp rhuksa us nks nks iSx 'kjkc fi;s] ckck oklqdh ukFk us eq>ls jksVh lCth ekaxh vkSj [kkrk pyk x;k] gjhukFk vkSj tsehlu ihrs jgs 5&6 iSx ihus ds ckn esjs xq: gjhukFk us fpye cuk;h ftls ge rhuksa us fi;k] mlds ckn eSaus tsehlu vkSj gjhukFk dks [kkuk fn;k] [kkuk [kkus ds ckn gjhukFk us tSehlu dks euk djus ds ckn Hkh gYds iSx ;g dg dj fn, fd dqN ugha gksrk vkSj vkids nksLr gSa gjhukFk us eq>s ikuh dh cksry ysus nqdku ij Hkst fn;k] nqdku ls eSa ikuh dh cksry [kjhndj yk;k vkSj tSehlu dks ns nh] tSehlu ikuh ihus ds ckn ;g dgdj okil tkus yxk fd eSa vc vkjke djus vkJe tk jgk gWw] gjhukFk us eq>ls dgk fd eSa Hkh rqEgkjs lkFk pywaxk eSa [kkuk [kk ywW rc rd :ds jgks] gjhukFk us eq>ls dgk fd dqfV;k ua0 29 esa ckck ijeukFk dkds ns[kdj vkvks eSa dqfV;k ua0 29 esa x;k rks ;gka rkyk yxk Fkk rks eSa okil vk;k rks esjs xq: gjhukFk us eq>ls dgk fd eSa bl lkys vaxzst ls dg jgk gWw fd fpye o [kkuk f[kykus ds cnys visu dqN Vs~osYl pSd o dSejk eq>s ns ns ysfdu ;g ugh ns jgk gS] rw nlds iSj idM+ bldk dke reke dj nsrs gSa tSehlu vUnj dqfV;k esa cSBk Fkk rFkk vf/kd u'kk gksus ds dkj.k dqN cksy ugha ik jgk FkkA eSaus tsehlu dks dqfV;k esa uhps fxjkdj mlds iSj dldj idM+ fy, rFkk xq: gjhukFk us mldh Nkrh ij cSBdj mldk xyk nck fn;k] og NViVkrk jgk] eSus etcwrh ls mlds iSj idM+s j[ks] gjhukFk us