1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Dharmendra Singh Vs. State of Rajasthan and others. D.B.CRIMINAL APPEAL NO.891/2002 against the judgment dt. 17.7.02 passed by the Addl.Sessions Judge(FT), Anupgarh, in Sessions Case No.10/2002. Date of Judgment: Sept.17, 2008 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Mridul Jain ) Mr.J.S.Khichi ) Mr.Bhagat Dadhich) for appellants. Mr.J.P.S.Choudhary, Public Prosecutor. BY THE COURT : (PER HON'BLE THANVI J.) 1. By this instant appeal, three accused appellants namely Dharmendra Singh alias Joni alias Raju alias 2 Veeru, Nindra Singh alias Jai and Nagraj alias Sarjeet have challenged their conviction and sentences passed by the learned Additional Sessions Judge (Fast Track), Anupgarh, District Sri Ganganagar dated 17.07.2002, whereby, all the three were convicted and sentenced as under : Accused Dharmendra Singh: U/s. 302 IPC Life imprisonment along with a fine of Rs.500/-, and in default, to further undergo two months' R.I. U/s. 201 IPC Five years' R.I. along with a fine of Rs.250/-, and in default, to further undergo one month's R.I. Accused Nindra Singh: U/s. 302/120B IPC Life imprisonment along with a fine of Rs.500/-, and in default, to further undergo two months' R.I. U/s. 201 IPC Five years' R.I. along with a fine of Rs.250/-, and in default, to further undergo one month's R.I. 3 Accused Nagaj: U/s. 302 IPC Life imprisonment along with a fine of Rs.500/-, and in default, to further undergo two months' R.I. U/s. 201 IPC Five years' R.I. along with a fine of Rs.250/-, and in default, to further undergo one month's R.I. All the substantive sentences were ordered to run concurrently. 2. In nutshell the facts leading to this appeal are that on 11.08.2001 at 11.30 A.M., one Tarsem Singh father of accused appellants No.1 and 2 namely Dharmendra Singh and Nindra Singh respectively, made an oral report at Police Station Karanpur that he married twice. His first wife namely Kuldeep Kaur died 15 years back with whom he got three issues namely appellants Nindra and Raju alias Dharmendra and one daughter Prassan Kaur. After the death of his first wife, he married Rati Kaur alias Ratan Kaur, with whom, he got 4 two sons namely Buta Singh and Roopa Singh. Roopa Singh died about two months back. His son Raju alias Dharmendra of the first wife aged 20 years is vagabond since childhood and used to live outside the house. His another son Buta Singh from the second wife is living at 17FF and he along with his wife Rati Kaur and son appellant Nindra Singh are residing at 28H. On the last Sunday, he and his wife were at the residence, then Gurjeet Singh son of Jassa Singh came and asked to attend the telephone. Upon this, his wife attended the telephone and came back and told that Ravi son of Buta Singh is ill and they have been called. He sent his wife by giving Rs.40/- and told her that he would come later after arranging for the money. On the next day, when he left for 17FF and reached Karanpur at 9 A.M. and talked with Buta Singh about the condition of Ravi. Buta Singh told that Ravi is alright. When he asked Buta Singh that his mother had been called at 17FF on account of Ravi's illness, then Buta Singh denied it. He also told that mother had not reached. Thereupon, he 5 and Buta Singh reached at 18FF where they had relationships. He got doubt on his son Raju and went for his search with another son. When they got the information that Raju is at 25PS, he along with Nindra, Buta Singh and Mangi Lal of his village went there by hiring a jeep, where they found Raju and asked him about the mother. Initially he did not disclose anything, but later on, when he was threatened, he disclosed that he has killed Rati Kaur on the last sunday and her dead body is lying near R.B. canal. Raju took them at R.B. canal and showed the dead body, which was partially cut and eaten by animals. He identified the dead body of his wife from her clothes etc. When Raju was asked about the reason for killing her step mother, he told that her step mother had seen him with a girl whom he had killed, whereupon they gave beating to Raju and left the place. Upon this, the police registered a case under Sections 302 and 201 IPC and commenced investigation. During investigation, three more persons were found to be 6 culprits namely two other appellants and one Sukhvindra Singh from the statement of Rajendra PW- 7, a taxi driver, who saw the incident. After investigation, the police filed charge sheet against the four accused namely three appellants and one Findi alias Sukhvindra. After hearing the arguments on charge, accused were charged under Section 302, 364 read with 120B, 302 read with 120B and 201 read with 120B IPC, to which they pleaded not guilty. The prosecution examined 12 witnesses. The statements of the accused were recorded under Section 313 CrPC. They led no defence. After hearing the arguments, the learned trial Judge acquitted Findi alias Sukhvindra Singh for the charges levelled and convicted and sentenced the three appellants as above. 3. Learned counsel for the accused appellants has submitted that there is a material improvement in the case by implicating all the four accused in the commission of crime. According to the learned 7 counsel, only Raju was suspected to have killed his step mother on the basis of his extra judicial confession but later-on, police has implicated rest of the three accused persons including the appellants on the version of taxi driver, Rajendra PW-7, whose court statements are self contradictory and do not inspire confidence. According to the learned counsel, the dead body was also not properly identified and three appellants have been falsely implicated in the case. 4. Per contra, the learned Public Prosecutor has supported the judgment of the learned trial court. 5. We have re-appreciated the evidence in the light of the submissions made and also on the basis of the record available in the file. 6. So far as the identification of the body is concerned, Tarsem Singh, PW-1, who is the husband of the deceased and lodged FIR Ex.P.1, has stated in his 8 examination in chief that the police reached on the site where the dead body was lying and prepared site plan Ex.P.2 of R.B. canal and inquest memo Ex.P.3. The police also recovered the clothes on the body of her wife vide Ex.P.4 namely 'salwar', 'kameez' and 'chunni' and the dead body was handed over to him vide Ex.P.5. On this issue, there is no material contradiction that the body was not belonging to the deceased. That apart, Kishan Lal, PW-2 and Maninder Singh, PW-3 are also the witnesses of these documents Ex.P.2 to Ex.P.6 of the dead body and recovery of clothes. 7. In addition to the above evidence, Dr.Dharamveer Gupta, PW-8, who conducted the post mortem of deceased has also stated in his examination in chief that the dead body was identified by her husband Tarsem Singh, PW-1. According to him, the bones of the dead body were clearly visible and the dead body was lying straight in a rotten condition, many parts of the body had been eaten by animals. Salwar and suit 9 were there on the dead body with 'chunni' on the neck along with a knot of another cloth, tied on the neck. In the cross examination, he has specifically denied that there was no flesh on the body or it was in the condition like skeleton. 8. The Investigating Officer, PW-12, who registered the case and prepared the site plan and inquest memo has also stated that he prepared inquest memo Ex.P.3 of deceased Rati Kaur and there is no material contradiction showing that the dead body was not of deceased. 9. In the cited case of Umesh and Anr. Vs. State of Rajasthan, reported in 2008(1) CJ (Raj.) 364, the witnesses of the identification of the dead body were turned hostile and the doctor who conducted the post mortem opined that the body was totally decomposed and organs of the body were found to be unidentified. This cited case is not helpful to the accused appellants 10 in the light of the foregoing discussion. 10. Coming to the act of the accused in committing murder by abducting her and destroying the evidence, there are two material witnesses, who have been examined by the prosecution and while relying upon their testimony, the learned trial Judge has based the conviction. They are the husband of deceased namely Tarsem Singh, PW-1, who lodged the FIR Ex.P.1. and taxi driver, Rajendra, PW-7, who is the eye witness of the incident. 11. Tarsem Singh PW-1, husband of deceased in FIR Ex.P.1 has stated that his wife Ratan Kaur was called by Buta Singh by making a telephonic call to Gurjeet Singh son of Jassa Singh. Then his wife Ratan Kaur boarded the bus. This Gurjeet Singh has not been examined by the prosecution. In the FIR, it is stated that he had doubt on his son Raju alias Dharmendra Singh, but in the court evidence, he has stated that his 11 another son Nindra Singh and Nagraj also killed his wife by taking her away in the car and he was told by passengers when he went to search for his wife with Buta Singh. Whereas in the FIR, he has given the name of accused Nindra Singh, who accompanied him with other two for search of wife. Buta Singh has also not been examined by the prosecution. In the cross examination, he has denied that he only implicated his one son Raju and on the contrary, he stated the names of Dharmendra, Nagraj and Nindra Singh. This FIR and the statement of Tarsem Singh, PW-1, if looked into in the light of the evidence of the eye witness Rajendra, PW-7, he has stated that two persons came to him for hiring taxi. He went with them and two more persons boarded the taxi on the way. On being asked about the identification, he initially denied and later on he identified Sarjeet, Raju and Nindra Singh, who originally came for hiring a taxi. One lady came at P.C.O., Karanpur. According to him, Sarjeet and Raju were sitting on the rear side seats of the car and they 12 killed the lady by strangulating her neck with `chunni' and Nindra told to leave the body at Canal. These statements were recorded by the police initially and thereafter he was examined under Section 164 CrPC vide Ex.P.11 by Judicial Magistrate, Raisinghnagar on 31.10.2001 i.e. after about five days less than three months. It appears that on the basis of this statement under Section 164 CrPC, the police has charge sheeted all the four accused, in which, he specifically named Surjeet, Raju, Nindra and Sukhvindra Singh who killed the lady by strangulation and Nindra threw the dead body in the canal. Nindra and Sukhvindra Singh also told to turn the vehicle back towards Karanpur. However, he has not named Sukhvindra in his court statement but named the three accused appellants. 12. From the above evidence, it reveals that some part of the evidence is improved version and some part is corroborated. The corroborative part is that deceased Ratan Kaur went to Buta Singh's house on getting a 13 telephonic call at the residence of Gurjeet Singh and she was later on killed and her dead body was thrown in the canal, which has been identified by her husband Tarsem Singh PW-1. Now the critical analysis has to be made as to who is the real culprit for killing her. If the initial statement of Tarsem Singh is taken to be reliable, then it was accused Raju alias Dharmendra Singh who committed this sinful act and if the evidence of taxi driver Rajendra PW-7 is looked into in the light of the improved statement of Tarsem Singh PW-1, then the finding of the learned trial court deserves to be confirmed by implicating all the three accused appellants. 13. In a criminal trial, when there are material contradictions, infirmities and conjectures then either the court has to throw out the whole prosecution case or to accept what is trustworthy, upon which the conviction can be based. This is commonly known as “to chaff the straw from the grain”. The present case 14 is also required to be scrutinized in the light of the above maxim. The learned trial Judge while discussing the evidence of conspiracy and abduction, came to the conclusion that the evidence of abduction is of weak nature and unclear and accordingly he acquitted the accused under Section 364 read with 120B IPC. He also came to the conclusion that by not examining the owner of the car, Jassa Singh at whose residence the original telephonic call came and Butta Singh another son of the deceased who went for her search, is also not material. But, in our view, this finding of the trial court is self contradictory. When the abduction is not proved, then the conspiracy which is the initial requirement to be proved, cannot be said to have been established. The conspiracy punishable under Section 120B is distinguished from common intention. The definition of criminal conspiracy has been given under Section 120A, which reads as under: “120-A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause 15 to be done, - (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.” 14. The punishment for the criminal conspiracy is provided under Section 120B IPC. According to this definition, the four ingredients are necessary to establish criminal conspiracy i.e. (i) an object to be accomplished, (ii) a plan or scheme for accomplishing that object, (iii) an agreement or understanding between two or more to cooperate for the accomplishment of that object and (iv) an overt act. This must be done by two or more persons. Though it is difficult to establish the conspiracy by direct evidence but it may be inferred from other incriminating circumstances by series of chain. 16 Admittedly in the present case, the prosecution has not brought out any motive of the accused appellants for killing Ratan Kaur, who is the mother of the two accused appellants namely Dharmendra Singh alias Raju and Nindra Singh alias Jai. Of-course, the deceased was their step mother and only alive son from her is Butta Singh, who has not been examined by the prosecution. Tarsem Singh PW-1 stated in the FIR that he originally went for search of his wife with the accused appellant Nindra Singh as he was having doubt on his another son Raju on account of his being vagabond since childhood and in the court statement, he named Butta Singh, who accompanied him and implicated Nindra Singh as a culprit. Non examination of Butta Singh and this contradictory statement of father with regard to implicating Nindra Singh cannot be relied upon in the absence of any motive, specially when he stated in the examination in chief that on account of phone, he had doubt on his son Nindra for which Jassa Singh Sarpanch told him. But, in the 17 cross examination, he said that Jassa Singh told him about the phone call from Butta Singh. This type of evidence being self contradictory cannot be a conclusive proof to implicate a person for conspiracy and murder. Likewise, Sarjeet Singh who is a stranger, has not been named in the FIR filed by Tarsem Singh PW-1. In the cross examination, he said that he was told by passengers of the bus that her wife has been taken in car by Nindra Singh, Dharmendra and Nagraj on the next day, but none of the passengers of the bus has been examined. 15. Now, coming to the testimony of eye witness Rajendra PW-7, taxi driver, who has stated about Surjeet Singh, Nindra Singh and Raju sitting on the rear side of the car and killed the lady. Nindra showed pistol to him. When this witness was cross examined with his previous statement recorded by the Magistrate Ex.P.11, he stated that he did not know but he told that the statement Ex.P.11 was not read over to him 18 by the Magistrate. There are material contradictions in his cross examination and the statement recorded before the Magistrate Ex.P.11. These contradictions are of such a vital nature from which, it cannot be established that there was a criminal conspiracy in killing Ratan Kaur by appellant Nindra Singh and Surjeet, especially when he has said in the cross examination that he was detained in the police station for three days and he gave the statement under pressure but no pressure was given to him when his statement was recorded by the Magistrate. A person who has been kept at the police station for three days and his statements are recorded almost about three months after the incident, which he narrates in the court, in general, cannot be said to be a true witness of conspiracy and of identification. The proper course for the prosecution would have been to put the accused for test identification parade in such cases, when the taxi driver is un-known to the accused. Though, the evidence of test identification parade is not a 19 substantive evidence but where the witnesses are not previously known, then test identification becomes a strong corroborative evidence. It is a matter of prudence and jurisprudential requirement that ordinarily identification of the accused for the first time in the court should not be relied upon for the purpose of passing the order of conviction without there being a definite corroboration. In the present case, the evidence of abduction in the car and conspiracy to kill deceased Ratan Kaur is clearly lacking from the sole testimony of eye witness Rajendra PW-7. The only common feature which has come from the testimony of Tarsem Singh PW-1 is that his son Dharmendra Singh alias Raju is a vagabond since childhood and he had doubt on his son Raju who made extra judicial confession before him about killing his wife and throwing the dead body in the canal, which appears to be more reliable, corroborated by the testimony of taxi driver Rajendra, PW-7 that Raju was one of the persons who killed the lady by strangulating her neck 20 with 'chunni' and threw it in the canal. Rest part of the statement of Tarsem Singh PW-1 and Rajendra PW-7 with regard to abduction and conspiracy by rest of the two accused appellants namely Nindra Singh alias Jai and Nagraj alias Sarjeet cannot be accepted. We are unable to affirm the finding of the learned trial court with regard to guilt of these two accused appellants in the absence of any reliable & trustworthy evidence of conspiracy, abduction and destroying the evidence. In our view, the prosecution has established beyond any reasonable shadow of doubt the guilt of the accused Dharmendra Singh alias Raju for the offence under Section 302 and 201 IPC on account of his previous conduct being of a vagabond since childhood as stated by his father Tarsem Singh PW-1. 16. Accordingly, we allow this appeal in part. The conviction of appellant Dharmendra Singh alias Raju for the offence under Sections 302 and 201 IPC recorded by Additional Sessions Judge (Fast Track), Anupgarh, 21 District Sri Ganganagar and sentencing him to life imprisonment with a fine of Rs.500/- & in default, to further undergo two months' R.I. for offence u/s.302 IPC and five years' R.I. with a fine of Rs.250/- & in default, to further undergo one month's R.I. for offence u/s.201 IPC is confirmed. However, we acquit rest of the two accused appellants viz; Nindra Singh alias Jai for the offence u/ss.302 read with Sec.120B and 201 IPC and Nagraj alias Sarjeet for the offence u/s.302 and 201 IPC. Both these appellants are in jail, they shall be released forthwith, if not required in any other case. Accused appellant Dharmendra Singh alias Raju is also in jail, he shall serve out the remaining part of the sentences as awarded. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS