Criminal Appeal No.602-DB of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No. 602-DB of 2005 Date of Decision: September 09 , 2008 Avtar Singh ...........Appellant Versus State of Punjab ..........Respondent Coram: Hon'ble Mr.Justice Jasbir Singh Hon'ble Mrs. Justice Sabina Present: Mr. S.S.Rana, Advocate for the appellant Mr.Rajesh Bhardwaj, Deputy Advocate General, Punjab for the respondent. * * * Sabina, J. Appellant-Avtar Singh by filing this appeal has challenged his conviction and sentence under Sections 363, 365 and 302 IPC vide judgment dated 4.6.2005 passed by the Additional Sessions Judge, Rupnagar. Vijay Kumar, complainant has filed a revision petition bearing No. 696 of 2006 for enhancement of sentence and payment of compensation. Vijay Kumar, complainant made a statement before the SI Sher Criminal Appeal No.602-DB of 2005 2 Singh, Police Station Nurpur Bedi on 27.7.2000 that his son Mahesh Kumar aged about 8 years had left for School in the morning but had not returned home. On inquiry from the School, he found that his son had not reached the School on that day. His wife Chanchala Devi told him that she had received a phone call at 9.00 a.m. and the person on the phone had inquired as to whether Mahesh Kumar was their son, and when she replied in the affirmative, the caller disconnected the call. When complainant reached home in the evening, he received a phone call at about 3.10 p.m. and the caller informed him that Mahesh Kumar was in his custody and he should bring Rupees ten lakhs near Azampur Mandir. At the asking of the complainant, the caller informed him that he was calling from Naya Nangal but he refused to disclose his address. On the basis of the statement of the complainant, formal FIR No.36 dated 27.7.2000 under Section 363 IPC was recorded by the Police of Police Station Nurpur Bedi. DSP Lamber Singh searched for Mahesh Kumar on 28.7.2000. On 8.8.2000, the Investigating Officer received a secret information that Mahesh Kumar had been kidnapped by Avtar Singh. On the basis of the said information, the Investigating Officer raided the house of accused Avtar Singh along with Mohinder Singh, Sarpanch but accused was not found in the house as it was locked. On 11.8.2000, accused-Avtar Singh was produced before the Investigating Officer by Subhash Chander at 8.30 a.m. On interrogation, his statement under Section 27 of the Evidence Act, 1872 was recorded. On the basis of the said statement, School bag of Mahesh Kumar was recovered from the disclosed place. Avtar Singh also showed the place where he had thrown the kidnapped boy in the Bhakra Canal. The spot was inspected from where the boy was kidnapped and site Criminal Appeal No.602-DB of 2005 3 plan was prepared. Investigating Officer on the same day received a message from SHO Morinda that a dead body was floating in the Bhakra Canal near village Oind Jhal. Investigating Officer reached the spot and informed relations/parents of the kidnapped body. The dead body was released from the Jhal after the relations reached the spot. Dead body was identified by Radhey Sham and Vikas and also by the mother of the deceased. Inquest report was prepared with regard to the dead body of deceased Mahesh Kumar. On the same day, bicycle of the accused was taken in possession. Investigating Officer also took in possession STD prints. Dead body was sent for post mortem. Dr.H.N.Sharma conducted the post mortem examination on the dead body of Mahesh Kumar on 12.8.2000 at 10.15 a.m. and found that the dead body was of a boy aged around 8 years . Rigor Mortis was absent. Weeds and grass was found lying over whole of the body. Foul smell was emanating from the body. Eye balls were putrefied and skin around orbit was peeled of. The skin over calvarium and the back of chest knee, elbow were found peeled of. Nails of both hands were softer and peeled of. Leg on right side was found de-composed. Left foot found de-composed. Scalp hair was found absent. Skin over the chest was found putrefied. The lungs were found congested and was sent for chemical analysis as was the heart. Tongue was also found putrefied. Abdominal visra, namely,stomach and intestines were sent for chemical analysis. Liver spleen kidneys were found putrefied. External generation were found putrefied. The report of the Chemical Examiner dated 16.10.2000 was received and in the light of this, the following observations were finally made:- “The cause of death in this case in opinion of the Criminal Appeal No.602-DB of 2005 4 Board was declared to be due to drowning. The probable time that elapsed between injury and death was declared to be few minutes and time between death and post mortem were declared to be 3 weeks. There was no evidence of chemical poisoning, as per report of the chemical Examiner” The Investigating Officer took in possession prints from the Telephone Exchange on 18.8.2000 for the period from 27.7.2000 to 29.7.2000. Thereafter, the offence under Sections 302, 364 IPC were added in the FIR. After completion of investigation and necessary formalities, Avtar Singh accused was sent up for trial. The charge was framed against him on 5.1.2001 under Sections 363,364,302 IPC. Accused did not plead guilty to the charge and claimed trial. Prosecution, in order to prove its case, examined as many as 20 witnesses at the trial. After the close of the prosecution evidence, accused when examined under Section 313 Cr.PC, prayed that the police had falsely planted a case on him. He did not know the complainant nor had met him before the occurrence. He had no enmity against the complainant nor he had visited his village. He had been abducted from his house. Accused, however, did not examine any witness in his defence despite opportunity. In appeal, it has been submitted by the learned counsel for the appellant that the accused had been falsely involved in this case. In fact, accused had been arrested much before 11.8.2000 and thereafter, the Investigating Officer conducted entire proceedings on 11.8.2000 and falsely involved the accused in this case. Criminal Appeal No.602-DB of 2005 5 Learned State counsel, on the other hand, has submitted that from the evidence led on record, it was established by the prosecution that Mahesh Kumar had been kidnapped by the accused and, thereafter, had been thrown into the Canal. Accused had raised a demand of Rupees ten lakhs from the father of the deceased i.e. complainant. After going through the entire evidence on record, we are of the opinion that there is force in the submissions made by the learned counsel for the appellant although it is a very sad incident in the lives of the complainant and his wife. They have lost their young son, who was aged only 8 years, but the prosecution is required to prove its case beyond reasonable doubt. It is not a case of direct evidence connecting the appellant with the alleged crime. The present case rests on the circumstantial evidence. It has been held in Vasa Chandrasekhar Rao vs. Ponna Satyanarayana, 2000(3) Recent Crininal Reports 96(SC) that in a case of circumstantial evidence, in order to establish the guilt of the accused, it was necessary to prove the circumstances fully and it was further held as under:- “(i) Circumstances should be conclusive in nature. (ii) All facts so established, should be consistent only with hypothesis of the guilt and inconsistent with innocence. (iii) Circumstances should exclude the possibility of guilt of any person other than the accused. (iv) In order to justify an inference of guilt, Criminal Appeal No.602-DB of 2005 6 circumstances must be incompatible with innocence of accused. (v) Cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offence beyond reasonable doubt. (vi) Where accused on being asked, offers no explanation or explanation is found to be false, then that itself forms an additional link in chain of circumstances.” The facts of this case have to be examined in this perspective. PW4 Chanchala Devi is the mother of deceased. She has deposed that when she received phone calls at 9.00/10.00 a.m. on 27.7.2000, she had identified the voice as that of accused Avtar Singh. Some more telephone calls were also made to them at 12.00 noon and 3.15 p.m. by the accused at their residence. In her cross-examination, she deposed that accused had never visited her house. The said witness, in her initial statement, before the police (Ex.DA) had rather stated that she had received a telephonic call from an unknown person. Thus, while appearing in the witness box, this witness has made material improvement. Had this witness identified the caller, she would have disclosed his identity to the police when her statement (Ex.DA) was recorded by the Police or it would have been mentioned by her husband when his statement was recorded by the police initially, which ultimately, formed basis for registration of formal FIR. PW6 Roshan Lal,who is the brother of the complainant, has Criminal Appeal No.602-DB of 2005 7 deposed that on coming to know that Mahesh Kumar had been kidnapped, he reached the Police Station where complainant was already present. Thereafter, they returned home. A telephonic call was received from accused Avtar Singh at No. 40170 at the house of his uncle and he was instructed to bring Rupees ten lakhs at the Canal minor village Kolapur. He reached the spot and stayed there for 15-20 minutes but no person met him over there and he returned back. The said witness in his cross-examination deposed that he had not arranged money for payment. Police had instructed him to reach at the Canal minor. On 30.7.2000, he was not aware as to who had kidnapped Mahesh Kumar. His statement was recorded on 4.8.2000 by the Police. On the other hand, complainant, while appearing in the witness box as PW7, has deposed that accused Avtar Singh had talked to him on the phone and had demanded Rupees ten lakhs as ransom. The accused had asked him to bring the money at Lakhdata Mandir at the Government Tube well after 2-3 days on 27.7.2000. As per this witness, he had taken the bag near Mandir after 2-3 days from 27.7.2000. The bag did not contain money but contained only waste paper. The bag was handed over to him by his brother Roshan Lal. The area in question was cordoned by the Police. He had left the bag at the disclosed place. Thus, from the statements of PW6 ad PW7, it is evident that both the witnesses have tried to show that they had taken ransom amount demanded by the accused. Both the witnesses have stated that the calls had been received by them. It appears that both the witnesses have not come out with the truth. Either the phone call was received by PW6 or PW7 and only one of them must have taken the ransom amount. It is not their case that both of them had gone together with the ransom amount. As per PW6, Criminal Appeal No.602-DB of 2005 8 his statement was recorded on 4.8.2000 after delay, and as such, his statement fails to inspire confidence. Both the said PWs although in the Court have deposed that accused Avtar Singh had talked to them on telephone and had raised the demand of Rupees ten lakhs but the name of the accused is not mentioned in the FIR. This shows that even the complainant is not coming out with true facts. In his cross-examination, complainant deposed that in the first inquiry he had suspicion about some other person's involvement in this case. He had filed petition regarding some other person's involvement in the occurrence. The first inquiry was conducted by the Office of ADGP Crime and the second inquiry was conducted at the instance of this Court. He was not satisfied with the first inquiry as he had suspicion that some more persons may be involved in this case. He did not make any statement in the second inquiry ordered by this Court. From this, it is evident that the complainant himself was not sure as to who was behind the kidnapping and murder of his son. Complainant in his cross-examination deposed that he was not income tax payee and his income was only hand to mouth. Accused earned his livelihood by selling vegetables on a bicycle and earlier, he was doing the work of cycle repairs. These facts also do not lead to an inference that a person who was only selling vegetables on a bicycle could have raised a demand of Rupees ten lakhs as ransom amount from a man who was also not having very good earning. PW4 Chancala Devi deposed in her cross-examination that accused was arrested after 3-4 days of the occurrence. Complainant -Vijay Kumar in his cross-examination deposed that he did not know on which date the accused was arrested but he was arrested. He was making a phone Criminal Appeal No.602-DB of 2005 9 call from Chanauli which was at a distance of 4 km from Nurpur Bedi. He also admitted that after the accused was arrested he came to know his name and the police disclosed that he was the kidnapper. On the other hand, the case of the Investigating Officer is that accused was produced before him on 11.8.2000 by PW5 Subhash Chander. These are the material discrepancies which create a doubt regarding the formal date of arrest of the accused. This shows that the Investigating Agency had not been investigating the case in a proper manner. PW5 Subhash Chander is a witness regarding extra-judicial confession allegedly suffered by the accused before him on 11.8.2000. The said witness is a teacher by profession. As per this witness, the accused came to his residence and confessed before him that he had kidnapped Mahesh Kumar on 27.7.2000 and had thrown him in Bhakra Canal in the area of village Dahdi as he was unable to keep the child concealed any longer. Accused told him that he wanted to take Rupees ten lakhs as ransom for the kidnapped child. The said witness in his cross-examination deposed that accused Avtar Singh was not related to him. Prior to Avtar Singh accused , no other accused had ever been produced by him before the Police. He was neither Sarpanch nor Lambardar of his village. The said witness was,thus, neither Sarpanch nor Lambardar of the village and was merely working as a teacher . In normal circumstances, a person suffers an extra judicial confession before a person in whom he reposes confidence. Accused Avtar Singh did not know PW5 Subhash Chander and as such, had no occasion to repose confidence in the said witness. In these circumstances, the statement of PW5 to the effect that accused had suffered an extra judicial confession before him fails to inspire Criminal Appeal No.602-DB of 2005 10 confidence. From all these facts, it appears that the Investigating Officer suddenly got active on 11.8.2000 and showed arrest of the accused at the instance of PW5 on the basis of so-called extra- judicial confession. On the same day, the accused was allegedly interrogated and his alleged disclosure statement under Section 27 of the Indian Evidence Act was recorded. On the other hand, complainant has deposed that accused was arrested while he was making a phone call from village Chanauli. Dead body was also recovered on the same day. Investigating Officer also took in possession the record relating to STD booth. As per the prints of STD phone bearing No.40595 produced on record, it is evident that some calls were made from the said STD booth on the phone number of the complainant i.e. 40876 but this in itself is not sufficient to lead to the presumption that the said calls had been made by the accused from the STD booth. PW17 Ashwani Kumar deposed that accused had made the phone calls from his booth and he had heard him making demand of money on 27.7.2000, 28.7.2000 and 29.7.2000. However, the said witness did not inform the police immediately regarding the conversation heard by him. As per this witness, accused was brought to his shop after 3-4 days by the SHO Lamber Singh but his statement was not recorded. The conduct of this witness makes his statement untrustworthy. Even otherwise, it is not expected that the accused would have raised a demand of ransom within the hearing range of this witness. This witness also casts a doubt on the date of arrest of the accused, because as per this witness, accused was brought to the STD booth after 3-4 days of the making of the phone calls, whereas,the accused was formally arrested in this case on 11.8.2000. Criminal Appeal No.602-DB of 2005 11 PW10 Manohar Singh has deposed that he owned STD connection at Bus stand village Chanauli and accused had made a phone call from his phone on 29.7.2000 and had demanded the money for release of a kidnapped boy. The said call was made at phone No. 40876. The said witness in his cross-examination deposed that he had informed the police on the same day regarding the demand of ransom amount made by the accused and police visited his shop on 29.7.2000 and on 30.7.2000 at about 6.00 a.m., he was called at the police station where the accused was present. Accused was not interrogated by the police in his presence. This witness also casts a doubt on the prosecution case rather than advancing it. In case, this witness had informed the police regarding the call made by the accused on 29.7.2000 and police also visited his shop, then why accused was not formally arrested on 30.7.2000 when he was present in the police station. All the facts discussed above lead to inescapable conclusion that the prosecution has failed to bring home the guilt of the accused. The circumstances brought on record by the prosecution are not conclusive in nature and do not lead only to hypothesis of the guilt of the accused. The prosecution case is, thus, doubtful. The possibility that somebody else might have kidnapped Mahesh Kumar and then thrown him in the canal cannot be ruled out. From the statements of the witnesses, it is evident that the accused was already in police custody and later his formal arrest was shown on 11.8.2000 and recoveries were planted on him. An accused is presumed to be innocent till proved guilty. However, in the present case, the guilt of the accused has not been established on record beyond the shadow of reasonable doubt. Accordingly, this appeal is allowed. Appellant is acquitted of Criminal Appeal No.602-DB of 2005 12 the charge framed against him. Consequently, the revision petition is dismissed. ( Sabina ) Judge (Jasbir Singh) Judge September 09, 2008 arya Criminal Appeal No.602-DB of 2005 13