Murder Reference No. 6 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Murder Reference No. 6 of 2008 Date of Decision : January 23, 2009 The State of Haryana .... Prosecutor Vs. Anand Kindo and another .... Respondents CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Kulvir Narwal, Addl.A.G, Haryana for the prosecutor-State. Ms. Tanu Bedi, Advocate for the respondent-convicts. Mr. Ashwani Talwar, Advocate for the complainant. * * * L. N. MITTAL, J. : By this common judgment, we are disposing of Murder Reference No. 6 of 2008 made by learned Additional Sessions Judge, Panchkula for confirmation of death sentence awarded to accused Anand Kindo and Rajan Gaur, both residents of District New Jalpaiguri in West Bengal, Crl. Appeal No. 413-DB of 2008 preferred by the said two convicts against their conviction and sentence; and also Crl. Appeal No. 1237-SB of Murder Reference No. 6 of 2008 2 2008 preferred by Sandhya @ Sangeeta, wife of Anand Kindo, against her conviction and sentence as all these cases have arisen out of same judgment of conviction dated 12.06.2008 and order of sentence dated 13.06.2008 passed by learned Additional Sessions Judge, Panchkula. Vide impugned judgment and order, accused Anand Kindo and Rajan Gaur have been awarded death sentence and fine of Rs.50,000/- each and in default of payment thereof, to undergo rigorous imprisonment for four years for offence under Section 302/34 of the Indian Penal Code (in short – IPC); also to undergo rigorous imprisonment for eight years and to pay fine of Rs.30,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for two years for offence under Section 392 IPC and also to undergo imprisonment for five years and to pay fine of Rs.10,000/- each and in default of payment of fine, further rigorous imprisonment for six months for offence under Section 201 IPC. All these substantive sentences of imprisonment have been ordered to run concurrently. Appellant Sandhya @ Sangeeta has been convicted and sentenced to suffer imprisonment for five years and to pay fine of Rs.10,000/- and in default of payment thereof, to undergo further rigorous imprisonment for six months for offence under Section 201 IPC. One Ajit Khaba of District Darjeeling in West Bengal was also named as accused, but he could not be arrested and was declared Proclaimed Offender (PO). Prosecution case in brief may be narrated as under :- On 15.05.2007, UGC Ram Kumar while posted as driver of ambulance in Police Post Sector 25, Panchkula, under Police Station Chandi Mandir, was present along with his colleagues in market of Sector 25, Panchkula at about 05:30 P.M., when ASI Ram Niwas of Police Station Sector 19, Chandigarh along with other police officials, met them and told that one car bearing licensed plate No. TN-04-E-7020 hit into a pole in the Murder Reference No. 6 of 2008 3 area of Police Station Sector 19, Chandigarh on 13.05.2007. Driver of the said car fled away, but his two companions sitting in the car were caught by the public. On inquiry, they disclosed their names and addresses i.e. Ajit Khaba (since PO) and Rajan Gaur, one of the two condemned prisoners. Name of the driver of the car was found to be Anand Kindo, the other condemned prisoner. The accidented car had been taken to Police Station Sector 19, Chandigarh on 13.05.2007 itself. However, neither owner nor driver thereof turned up to claim the said car. On checking of car, address of House No.1, Sector 25, Panchkula came to be known and therefore, ASI Ram Niwas went to Panchkula on 15.05.2007. Thereafter, ASI Ram Niwas, with his companions and UGC Ram Kumar went to House No.1, Sector 25, Panchkula. However, nobody responded to their call. On reaching near the staircase, they felt very foul smell being emitted from the house and it appeared that some decomposed dead body was lying inside the house. Chandigarh police went back. UGC Ram Kumar intimated SI Narinder Singh, Station House Officer of Police Station Chandi Mandir, who along with other police officials, reached the spot. UGC Ram Kumar made statement Ex. P-A to SI Narinder Singh. On opening the door of the house, articles were found lying scattered on the floor. On reaching bedroom on first floor, dead bodies of a male and a female soaked in blood were found lying on the bed. The deceased were retired Major General Kailash Chand Dhingra (K. C. Dhingra) and his wife Sangeeta Dhingra. The aforesaid car was owned by Kailash Chand Dhingra (since deceased). It was found that Rajan Gaur, Anand Kindo and Ajit Khaba murdered the couple and committed robbery and took away stolen articles with car. Narinder Singh made endorsement Ex.P-A/III on statement Ex.P-A and sent it to Police Station Chandi Mandir, where on its basis, FIR Ex.P-A/I under Sections 460/34 IPC was recorded. SI Narinder Singh inspected the spot and prepared rough site plan Ex.P-R and conducted inquest proceedings on the Murder Reference No. 6 of 2008 4 dead bodies and prepared inquest report Ex.P-S. The dead bodies were removed to Civil Hospital for post-mortem examination along with request Ex.P-K/II. However, the dead bodies were taken to PGIMS Rohtak, where Dr.Vijay Pal Khanagwal and Dr.Luv Kumar Sharma, Associate Professors, Department of Forensic Medicine, conducted post-mortem examination on the dead bodies of K. C. Dhingra and Sangeeta Dhingra respectively and found injuries on the dead bodies. Some organs were decomposed. Cause of death in the case of K. C. Dhingra was opined to be head injury, which was ante-mortem, homicidal and caused by hard and blunt objects and the injuries were sufficient to cause death in ordinary course of nature. In case of Sangeeta Dhingra, cause of death was opined to be head injuries described in the post-mortem report, which were ante-mortem, homicidal and caused by hard and blunt object and the injuries were sufficient to cause death in ordinary course of nature. Viscera of both the deceased was sent for analysis, but as per report of Forensic Science Laboratory (FSL), no common poison was detected in the viscera. Articles of the deceased in sealed parcels handed over by doctors were seized vide memo Ex.P-B. Place of occurrence was got photographed by SI Narinder Singh. Scene of Crime Team also came to the spot besides Finger Prints Experts and Dog Squad. Blood stains were also lifted from the spot in the presence of Lt. Col. Amit Dhingra, son of the deceased. Some other articles were also seized from the spot. One police team went to South and another to West Bengal to search the culprits. Head Constable Jagdish Chander and Constable Rajbir received secret information that Anand Kindo and Rajan Gaur would board train Karnataka Express from Ahmednagar in Maharashtra. Accordingly, on 03.06.2007, they reached Ahmednagar on Railway Station platform. They searched Karnataka Express train for Anand Kindo and Rajan Gaur and on reaching near Coach S-13, they saw two young boys standing near Murder Reference No. 6 of 2008 5 the window. Their appearance tallied with the sketches which were with the police party. The police party tried to catch them but they jumped from the running train. The police party stopped the train and chased them and informed the Control Room. Message was received from Ahmednagar Control Room later on that both the suspects Anand Kindo and Rajan Gaur had been apprehended. Head Constable Jagdish Chander and Constable Rajbir went to Police Station Kotwali, Ahmednagar and met Inspector Tuka Ram Vahile, Station House Officer of the Police Station, who was informed about the case. Report was recorded in daily diary. Both these accused were arrested. On 04.06.2007, SI Rajinder Singh from Police Station Chandi Mandir along with Escort Party, reached Police Station Ahmednagar and took custody of both the accused from Inspector Tuka Ram Vahile vide memo Ex.P-O. Both these accused were produced before Illaqa Magistrate, Ahmednagar, who gave transit remand till 10.06.2007. The accused were brought to Panchkula and produced before Illaqa Magistrate, Panchkula on 06.06.2007. On 09.06.2007, Anand Kindo and Rajan Gaur, after making disclosure statements, got recovered a tawa (cooking plate) and a hammer respectively, which were allegedly used as weapons of offence. Doctors gave opinion that injuries on deceased could be caused with the same. These two accused, after making disclosure statements, also got recovered stolen articles including cash, jewellery, clothes, laptop etc., which were identified by Sumit Dhingra, son of the deceased, to be stolen property of the deceased. Accused Sandhya had allegedly helped the other accused in packing the stolen articles. She was also arrested on 13.06.2007. On completion of investigation, the three accused were sent for trial. Charge under Sections 120-B, 460, 302/34 and 201 IPC was framed against the accused. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined 23 witnesses. Murder Reference No. 6 of 2008 6 ASI Ram Kumar (previously UGC Ram Kumar) (PW-1) stated that he made statement Ex.P-A to SI Narinder Singh and also deposed about the facts mentioned in the said statement. ASI Ishwar Singh (PW-2) stated that he recorded formal FIR in the case and sent its special report. On 16.05.2007, he had also taken the dead bodies to PGIMS Rohtak and after post mortem examination conducted there on 17.05.2007, sealed parcels handed over by the doctors were given to SHO vide memo Ex.P-B. On 11.07.2007, the witness had also deposited the case property with FSL without any tampering. Sandeep Walia (PW-3) is brother of Sangeeta Dhingra-deceased. He identified the bodies of both the deceased. He along with Deepak Kumar received the dead bodies on 17.05.2007 vide receipt Ex.P-C. EHC Harbans Lal (PW-4) had taken the special report. He has stated that he delivered the special report to Illaqa Magistrate and police officers. EHC Rajesh Kumar (PW-5) stated that he had taken photographs of the place of occurrence. Amit Dhingra (PW-6) is son of the deceased. He was at Mhow in Madhya Pradesh and on receiving information, reached Panchkula on 16.05.2007. There was blood in the bedroom. The same was lifted by ASP Manish Chaudhary vide memo Ex.P-D. Constable Jagsir Singh (PW-7) stated that he prepared scaled site plan Ex.P-E after inspecting the spot. ASP Manish Chaudhary (PW-8) partly investigated the case. He stated about FSL team, Scene of Crime Team and Dog Squad. He also got the scene of crime photographed. He also lifted blood from the spot and also seized some other articles. Inspector Tuka Ram Vahile (PW-9) stated that on 03.06.2007, two officials of his Police Station Ahmednagar, on receiving information from Control Room, apprehended the suspects Anand Kindo and Rajan Gaur near Railway Station. They were brought to Police Station and arrested vide arrest memos Ex.P-F and Ex.P- F/1. Report in Daily Diary was also recorded. Meanwhile, Head Constable Jagdish Chander and Constable Rajbir reached there. They identified both Murder Reference No. 6 of 2008 7 the accused being `WANTED' in the instant case. Next day i.e. on 04.06.2007, SI Rajinder Singh took both the accused on transit remand. Reports were recorded in Daily Diary. Sumit Dhingra (PW-10), another son of the deceased, has stated that his parents were residing in rented accommodation in House No.1, Sector 25, Panchkula. On receiving intimation on 15.05.2007, he came from USA and reached Delhi on 17.05.2007. He stated that on 09.06.2007, accused Anand Kindo and Rajan Gaur made disclosure statements and got recovered weapons of offence and stolen articles, which were identified by the witness to be the stolen articles of his parents. Car was also taken into possession from Police Station, Sector 19, Chandigarh. It was Maruti Esteem car of the deceased. Some articles found in the car i.e. two cell phones, job-card and bill of service of the car, head of CD player and some file folders were seized vide memo Ex.P-G/I. One cell phone given by Rajan Gaur and Anand Kindo to Rajinder Parshad was recovered from the shop of the latter in Sector 18, Chandigarh vide memo Ex.P-G/II. The stolen articles recovered at the instance of both the accused included attaché-cases containing belongings and household articles of the deceased, jewellery, cash amount of Rs.46,000/- and 886 US Dollars and also a laptop. Constable Baljit Singh (PW-11) from Police Station Sector 19, Chandigarh stated that he handed over the Esteem car and the articles recovered therefrom vide memo Ex.P- G/I. Head Constable Jagdish Chander (PW-12) stated about apprehension of accused Anand Kindo and Rajan Gaur at Ahmednagar. He also stated about disclosure statements of these two accused and recovery of a tawa and a hammer at their instance. Rajinder Parshad (PW-13) stated that these two accused had given him a mobile phone for repair on 13.05.2007, but did not come to take back the same. On 09.06.2007, they came along with police and Sumit Dhingra, who identified the said mobile phone from among other mobile phones, to be of his father. The said mobile phone was seized vide Murder Reference No. 6 of 2008 8 memo Ex.P-G/II. Constable Sanjay Kumar (PW-14) stated that he had taken sealed parcel of laptop and deposited it with FSL Madhuban without any tampering. AMHC Satish Kumar (PW-15) stated that sealed parcel of laptop was deposited with him on 10.06.2007 by IO Rajinder Kumar and the same was sent to FSL Madhuban through Constable Sanjay Kumar on 20.06.2007, without any tampering. ASI Ram Niwas (PW-16) from Police Station Sector 19, Chandigarh stated that on 13.05.2007, at about 11:45 A.M., he received information regarding happening of an accident near Tagore Theater, Sector 18, Chandigarh. The witness along with other officials went there and found the aforesaid Esteem car in damaged condition having met with accident with a pole. The car was got photographed. Public persons told that accused Rajan Gaur and Ajit Khaba were sitting in the car and were present there, whereas the car driver had run away after the accident. Statement of Rajan Gaur was recorded and on its basis, report Ex.P-J was entered in Daily Diary. Rajan Gaur stated that he along with Ajit Khaba had taken lift in the aforesaid car being driven by a person also from West Bengal and the car met with an accident at the aforesaid place when a dog suddenly came in front of the car. The driver suffered minor injuries and went to get medical aid. The car was removed to police station. It was found to contain two mobile phones, four file covers/folders, one head of CD player and documents of service of the car. After waiting for car driver or owner of the car to turn up, ASI Ram Niwas on 15.05.2007 went to Sector 25, Panchkula as address of car owner was disclosed by the documents to be House No.1, Sector 25, Panchkula. ASI Ram Niwas along with UGC Ram Kumar went there and found strong foul smell being emitted from the house as if some dead body was decaying there. HC Amarjit Singh (PW-17) stated that the case property was deposited with him and it was not tampered with in his custody till the same was sent to FSL. Dr.Vijay Pal Khanagwal (PW-18) and Dr.Luv Kumar Murder Reference No. 6 of 2008 9 Sharma (PW-19) stated about post-mortem examination on the dead bodies of K. L. Dhingra and Sangeeta Dhingra respectively. Sandeep Kumar (PW-20) is Incharge of Computer Branch in the office of Superintendent of Police, Panchkula. He stated that on 08.08.2007, he gave call details of mobile phone No.98767-15947 and mobile phone No.98767-15948 of Airtel Company to SI Rajinder Singh vide memo Ex.P-M. Constable Mainpal (PW-21) stated that he had taken case property to FSL Madhuban and deposited the same there without any tampering. SI Rajinder Singh (PW-22) and SI Narinder Singh (PW-23) stated about the investigation of the case conducted by them as already noticed. FSL Report Ex.P-X was also tendered into evidence. On conclusion of prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure (in short – Cr.P.C.). In their statements, the accused denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They alleged that they have been falsely implicated and they did not make any disclosure statement nor got recovered anything. No evidence was led by the accused in their defence. Learned Additional Sessions Judge, Panchkula vide impugned judgment dated 12.06.2008 and order dated 13.06.2008 convicted and sentenced the accused as already noticed in the opening part of this judgment. Murder Reference has been made by the trial Judge for confirmation of death sentence of Anand Kindo and Rajan Gaur, who have also preferred separate appeal against their conviction and sentence and Sandhya @ Sangeeta has preferred separate appeal assailing her conviction and sentence. We have heard learned counsel for the parties at considerable length and also carefully examined the case file with their assistance. Murder Reference No. 6 of 2008 10 At the outset, it has to be noticed that there is no evidence whatsoever to uphold the conviction of Sandhya @ Sangeeta. The learned trial court convicted her on the basis of following observations :- “80. Nothing has been recovered from accused Sandhya during investigation of this case. But she was residing in a quarter provided by her and her husband's employer. She did not intimate the police the factum of robbery and murder of her employers Major General (retd.) K. C. Dhingra and his wife Smt. Sangeeta Dhingra. Therefore, I hold her and accused Anand Kindo and Rajan Gaur guilty of offence under Section 201 IPC.” However, there is no basis for conviction of Sandhya. As observed by the trial court, nothing was recovered from her. The trial court has observed that Sandhya was residing in a quarter provided to her by her husband's employer. However, there is not even iota of evidence on record in support of this observation of the trial court. Consequently, the observation of the trial court that Sandhya did not intimate the police about the factum of robbery and murder of her employers, also cannot be accepted. In addition to it, mere non-intimation of the crime to the police does not fall within the mischief of Section 201 IPC. There is not even an allegation, much less evidence, to the effect that Sandhya caused evidence of commission of crime to disappear and it was done with intention of screening the offender from legal punishment, so as to fall within the parameters of Section 201 IPC. In fact, there is no material on record to convict Sandhya or for that reason, to convict even Rajan Gaur and Anand Kindo for offence under Section 201 IPC. Even learned State counsel could not refer to any material on record for sustaining the conviction of the three Murder Reference No. 6 of 2008 11 convicts under Section 201 IPC. Consequently, Sandhya @ Sangeeta deserves to be acquitted, because her conviction is for offence under Section 201 IPC only. Further discussion shall, therefore, relate to the remaining two convicts namely Anand Kindo and Rajan Gaur for offences under Sections 302 and 392 IPC. The case is based on circumstantial evidence as there is no eye- witness of the occurrence. Learned counsel for the convicts relied on gist of some judgments namely Aloke Nath Dutta and others vs. State of West Bengal reported as 2006 (13) SCALE 467, Manjunath Chennabasapa Madalli vs. State of Karnataka reported as AIR 2007 SC 2080, Varkey Joseph vs. State of Kerala, rep. By the Circle Inspector of Police reported as AIR 1993 SC 1892 and Dasari Siva Prasad Reddy vs. The Public Prosecutor, High Court of A.P. reported as AIR 2004 SC 4383, on the question of circumstantial evidence and also contended that mere suspicion is not substitute of proof. On the other hand, learned State counsel cited Sanjay @ Kaka vs. The State (NCT) of Delhi reported as 2001 (1) R.C.R. (Criminal) 677, State of U.P. vs. Satish reported as (2005) 3 S.C.C. 114, Limbaji vs. State of Maharashtra reported as 2002 (1) R.C.R. (Criminal) 266, State of Rajasthan vs. Kheraj Ram reported as (2003) 8 S.C.C. 224 and Gura Singh vs. State of Rajasthan reported as 2001 (1) R.C.R. (Criminal) 122. Law relating to circumstantial evidence is well settled. Following are the tests to be followed in the case of circumstantial evidence : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established – Circumstances concerned “must” or “should” and not “may be” established – There is legal distinction between “may be proved” and must be or should be proved. Murder Reference No. 6 of 2008 12 (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the case of Sanjay alias Kaka (supra) and Limbaji (supra), in cases of murder with robbery, recovery of stolen articles at the instance of the accused was held to be a material circumstance. Evidence has to be analysed in the instant case keeping in view the tests laid down for circumstantial evidence. The first and foremost important circumstantial evidence in favour of the prosecution is that on 13.05.2007, car No. TN-04-E-7020 met with accident in Chandigarh and ASI Ram Niwas of Chandigarh Police went to the spot and found Rajan Gaur-convict and Ajit Khaba-PO at the stop as occupants of the car, whereas the driver (later on found to be Anand Kindo-convict) had absconded. Statement of Rajan Gaur was recorded by ASI Ram Niwas and on its basis, DDR Ex.P-J was recorded. On that day, Chandigarh Police had no clue or information about the murders. The car was seized by the police on the same day. The car, which belonged to the deceased, also contained cell phones and some other belongings of the Murder Reference No. 6 of 2008 13 deceased. The question of creating any such evidence on 13.05.2007 did not arise when there was not even a clue or information that the deceased had been murdered. This evidence therefore assumes significance and in fact, this evidence led to the detection of the murders on 15.05.2007, although the murders had probably taken place on the night intervening 12/13.05.2007. The car was seized on the very next day i.e. on 13.05.2007 and the car, along with articles found therein, belonged to the deceased. When nobody turned up to claim the car, the Chandigarh Police, on finding address of the car owner i.e. K.C.Dingra-deceased from the documents found in the car, went to his house i.e. place of occurrence. However, there was no response to their call and rather strong foul smell of decomposed body was being emitted from the house. This led to the detection of commission of crime. UGC Ram Kumar of Chandi Mandir Police Station, on the basis of information received from Chandigarh Police, made statement Ex.P-A leading to the registration of the FIR. Names and addresses of Ajit Khaba (PO) and Rajan Gaur-convict and also name of Anand Kindo-convict were mentioned in the FIR, on the basis of information received from Chandigarh Police regarding accident of the car on 13.05.2007. Thus, names of the aforesaid three accused appeared in the FIR at the earliest opportunity. Next link in the chain of circumstances is provided by arrest of both these convicts on 03.06.2007 at Ahmednagar in Maharashtra, a far off place from the