Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 67 of 2002 G urudev Singh and another ...…………. Appellants Versus State of Uttarakhand ...…………. Respondent Mr. Prabhakar Joshi, Advocate for the appellants. Mr. Amit Bhatt, Addl. Govt. Advocate for the State. JUDGMENT Coram : Hon’ble Barin Ghosh, C. J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 01.03.2002, passed by Addl. Sessions Judge (First), Udham Singh Nagar in Sessions Trial No. 40 of 1998, whereby accused / appellants Gurudev Singh and Satpal Singh have been convicted under Section 364-A, 302 and 201 of I.P.C. Each one of them has been sentenced to imprisonment for life in respect of offences punishable under Section 364-A and 302 of I.P.C., and directed to pay fine of `5,000/- each on both counts. The accused / appellants have further been sentenced to rigorous imprisonment for a period of one year and directed to pay fine of `2,000/- each for the offence punishable under Section 201 of I.P.C. 2 2. Heard learned counsel for the appellants & learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution story, in brief, is that on 09.03.1998, at 10:10 P.M., Sukhdev Singh (informant) gave a written report (Ext. Ka-2) in police station Sitarganj stating therein that his son Sukhdeep Singh, aged 12 years, student of Class VII in Guru Nanak Public School, Sitarganj came to his shop at 04:00 P.M. on the very day i.e. 09.03.1998 and demanded one rupee from him, which was denied to him as he was not having a currency note of denomination of Re. one at that time, but promised to give the same later. After that his son told him that he will return soon and went to his house from the shop. His school bag was found lying in front of the house. On search being made, when he was not found, Sukhdev Singh (father of the boy) gave written report of the incident to the police on the same day i.e. 09.03.1998, at 10:10 P.M. The police registered the missing report in this regard and the parents, relatives and the police made every effort to trace the missing boy, but to no avail. Meanwhile, some unknown person contacted the parents over phone, but on asking about the identity, he disconnected the phone. On 29.03.1998 at about 03:00 P.M., Sukhdev Singh handed over a letter (Ext. 1) to the police which was given to him by Ramdhani (since acquitted). After receiving said letter, police registered a case initially in respect of offence punishable under 3 Section 364-A of I.P.C. Meanwhile, police arrested Ramdhani. Sukhdev Singh (informant) identified Ramdhani and told that he was the same person who handed over the letter to him, relating to ransom of ` 35,000/- in lieu of safe return of the boy. On being interrogated, Ramdhani disclosed that accused Gurudev Singh, who earlier used to work in the studio of Sukhdev Singh, with the help of his associate Satpal Singh, abducted Sukhdeep Singh alias Deepu on 09.03.1998 in the evening from his bicycle near his house. Accused Gurudev Singh was also arrested by the police. On being interrogated, accused Gurudev Singh disclosed that after adducting Sukhdeep Singh alias Deepu, he handed over the boy to Satpal Singh, who took him by bus to his residence and kept him there that night. Next day Deepu was kept in the house of accused Gurudev Singh, where on 10.03.1999, in the evening, Gurudev Singh and Satpal Singh murdered Deepu by strangulating him with the help of a piece of cloth and buried his dead body in the south-west corner in the field of Satpal Singh. Gurudev Singh’s apprehension was that the boy being familiar to him might have disclosed his identity to the police, so he along with Satpal Singh murdered him on that night. Accused Gurudev Singh gave his acceptance to recover the dead body of the boy, on which P.W.6 S.I. Radhey Shyam Sharma along with Sukhdev Singh, witnesses Satyapal Singh and Paramjeet Singh got the dead body of Deepu recovered from the sugarcane field of Satpal Singh. The dead body of Sukhdeep Singh alias Deepu was identified by Sukhdev Singh and the witnesses. A 4 recovery memo (Ext. Ka-7) was prepared. The dead body was recovered from a jute bag, and recovery memo (Ext. Ka-8) was prepared. Meanwhile, police also prepared site plan (Ext. Ka-10) of the place from where the boy was abducted, and the site plan (Ext. Ka- 11) of the place where dead body was recovered. 4. The police took the dead body in their possession and prepared inquest report (Ext. Ka-9) and the dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. J.S. Pangti (P.W.5) on 30.03.1998 at 05:30 A.M. However, he did not find any ante mortem injuries on the dead body. The postmortem examination report (Ext. Ka-1) shows that the dead body was about two weeks old. The body was decomposed. Face was disfigured. Hairs were easily detachable. The Medical Officer opined in the autopsy report (Ext. Ka-1) that cause of death could not be ascertained and viscera was preserved for chemical analysis. After interrogating the witnesses and on completion of investigation, charge sheet (Ext. Ka-13) was filed against the accused / appellants Gurudev Singh and Satpal Singh and three others namely Swarn Singh, Jaspal Singh and Ramdhani, relating to offences punishable under Section 364-A / 302 / 201 / 368 of I.P.C. 5. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the 5 court of sessions for trial. Learned Addl. Sessions Judge, Udham Singh Nagar on 21.09.1999, after hearing the parties, framed charge for the offences punishable under Section 364-A, 302 and 201 of I.P.C., who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Manjeet Kaur (mother of the deceased); P.W.2 Sukhdev Singh (informant and father of the deceased); P.W.3 Balwant Singh (grandfather of the deceased); P.W.4 Param Pavitra Singh; P.W.5 Dr. J.S. Pangti (who conducted the postmortem examination) and P.W.6 S.I. Radhey Shyam Sharma (who investigated the crime). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. No evidence in defence was adduced on behalf of the accused. The trial court, after hearing the parties, found that there was no evidence on record against Swarn Singh and Jaspal Singh. It also found that prosecution has not been able to prove its case as against Ramdhani beyond reasonable doubt. The trial court acquitted the three of the charges leveled against them. However, the trial court found accused / appellants Gurudev Singh and Satpal Singh guilty of charge of offences punishable under Section 364-A, 302 and 201 of I.P.C. After hearing the parties, the trial court sentenced both the accused to imprisonment for life in respect of offences punishable under Section 364-A and 302 of I.P.C. and directed to pay fine of ` 5,000/- each on both counts. The accused / appellants have also been sentenced to rigorous imprisonment for a period of one year and 6 directed to pay fine of ` 2,000/- each in respect of offence punishable under Section 201 of I.P.C. Aggrieved by said judgment and order dated 01.03.2002, both the convicts have preferred this appeal. 6. According to P.W.1 Manjeet Kaur, her son Deepu aged about approximately 12 years was a student of class VII in Gurunanak Public School, Sitarganj, district Udham Singh Nagar. On 09.03.1998 at 9:00 a.m., he had been to school and returned at 3:30 p.m. He went to Studio straight away and demanded `1, but since he was not having a currency note of denomination of Re. one, therefore, his father asked him to take it later on. Thereafter, he came to his residence and left his bag there and went with appellant Gurudev Singh. Since then Deepu was missing. A ransom was demanded on telephone by an unknown person that a sum of ` 35,000/- be paid and their son will reach at their residence by 8:00 p.m. Ramdhani was arrested by the Police, who told that appellant Gurudev has taken away his son for ransom. Later on he changed his statement. Ramdhani referred to the name of appellant Satpal who was arrested by the police and who, in turn, said that their son had been abducted for ransom by appellant Gurudev. Later on the dead body of Deepu was found buried in the field of Satpal Singh, father of Gurudev. 7. On cross-examination, this witness has stated that Balwant Singh is her father-in-law and Paramjeet 7 Singh is his brother-in-law, who resides in Shahjahanpur and witness Harbhajan is her maternal father-in-law, who resides in Pilibhit. Ramdhani demanded ransom on 28.03.1998. He was arrested on the same day at 3:30 p.m. The Police Station was informed. There are many a things which this witness does not remember. When Ramdhani was arrested, this witness was not present there. Satpal was also not arrested in her presence but says that Satpal was arrested on the date demand for money was made. When her son asked for ` 1 from his father, this lady was not there. She did not see her son accompanying appellant Gurudev either. On being asked by the Court, this witness said that her husband had told her about the fact of Sukhdeep (son) accompanying appellant Gurudev on 29.03.1998. She does not know whether her husband had seen Sukhdev accompanying appellant Gurudev or not. Sukhdeep Singh was born out of the wedlock of his husband with his first wife. She was not present at the time of recovery of the dead body of her stepson. 8. Thus, the evidence of this witness loses importance for the prosecution. She is not aware of many a facts which she was expected to have. She is neither an eyewitness to the gruesome murder nor is the witness who has seen her son last in the company of either of the accused/appellants. 9. P.W.2 Sukhdev Singh, in his examination-in- chief, has stated that on 09.03.1998 his son Sukhdeep 8 Singh aged 12 years, a student of class 7th in Gurunanak School came back to studio after the school as usual. He asked for a `1 note. Since this witness had no currency note of the denomination of Re. one, therefore, he asked his son to take the money later on. Thereafter he left the studio for his residence, Instead his school bag was found lying in the lane of the gate of the house. He wrote a complaint to police of Police Station Sitarganj, district Udham Singh Nagar. There was no clue till 14-15/03/1998. Then a demand of ransom started on 16.03.1998. The abductors wanted ` 35,000/- in lieu of Sukhdeep Singh. No fixed place was told by the abductors. They did not disclose their names and parentage. On 29.03.1998 a letter was received mentioning that the ransom of ` 35,000/- be paid to Ramdhani, who in turn, will deliver the custody of the child. This letter was handed over to the police on 29.03.1998. He approached Ramdhani with ` 35,000/- but since Ramdhani did not give any clue of child to him, therefore, he did not hand over the money. Police arrested Ramdhani. Ramdhani disclosed that the child with Satpal. Police arrested Satpal and Gurudev, who confessed their guilt and said that they can get the dead body of child recovered. They took the police to the bank of a river. He also accompanied police and the accused persons. Satpal and Gurudev dug the earth and got the dead body of the child recovered. Thereafter, he became sub-conscious. Gurudev confessed that the child was kept by him at his residence. Ramdhani gave him a letter for ransom. Ramdhani told him that the letter was given by Satpal. The amount of ransom was 9 ` 35,000/-. The original letter was taken by the police from him during the investigation but the photocopy was retained by this witness which is produced before the Court as Ext. 1. 10. In the cross examination this witness has said that he did not see Deepu going with anybody. He did not see the child being detained by anybody. No accused demanded ransom from him directly, only Ramdhani had given him a letter demanding ransom. The person who demanded ransom on telephone did not disclose his name. He does not know as to when did he receive the letter. In the letter addressed to the police he had disclosed the name of the person who had handed over the letter to him. The report is not on the file. He had however, got it photocopied soon thereafter. He had submitted the report to the police that his child is missing. He was accompanied by one Mukesh Singhal to the Police Station. Mukesh Singhal owns a shop near his shop. It is to be noted here that accused Ramdhani has been acquitted by learned Additional Session Judge, Rudrapur and there is no cross appeal by the State against such acquittal. He does not remember as to when and where accused Ramdhani was arrested by the Police. The original letter handed over by Ramdhani is not on file. He does not remember the exact date of arrest of Gurudev and Satpal but, he says that they were arrested by the police together. The dead body was recovered in the evening. The police did not tell him that the accused persons want the dead body to be recovered. He did not try to 10 take the photograph of the same (this witness is having the studio). He did not take the photograph of the dead body in the police station either. He has denied the suggestion forwarded on behalf of the accused that Satpal and Gurudev Singh did not confess before the police. He did not see Deepu in anybody’s house. He had told the Investigating Officer about Ramdhani’s disclosure that the letter has been given by Satpal but this fact is not recorded in his statement. Later on this witness who happens to be father of the deceased also proved the missing report of his son exhibit Ka-2. He did not see anybody abducting his son. The testimony of this witness is vague on many counts. He did not see anybody in the accompany of the abducted child when he was last seen. When the dead body was recovered at the instance of Satpal and Gurudev on the basis of their confession? It is doubtful whether such a statement can be read under Section 27 of Indian Evidence Act. Recovery memo does not bear the signatures of the appellants. The original letter purported to be given by Ramdhani for ransom is not produced. The accused who had handed over the letter has been acquitted by the learned trial court giving him the benefit of doubt and there is no cross appeal by the State as against his acquittal. 11. P.W.3 Balwant Singh is the grandfather of the deceased Deepu. On 09.03.1998 his grandson had gone to school as usual and when he came back home at 4:00 p.m., he went to his father’s shop, which is on the first floor of the shop of this witness. Deepu thereafter went 11 to his house. He left his school bag at the residence and thereafter could not be traced. Police arrested Gurudev, Ramdhani and Satpal. The accused persons confessed before the police in his presence that they can get the dead body of the child recovered. He did not accompany police personnel. The testimony of this witness does not help the prosecution as the dead body was not recovered by the police in his presence. He has not seen anybody killing the victim. (It is not a case of direct evidence). Last seen evidence is also missing. 12. P.W.4 Param Pavitra Singh has stated in his examination in Chief that he accompanied police with Gurudev Singh, Satpal and Ramdhani to jungle of Bichota. They reached the place where dead body of Deepu was lying buried. Gurudev and Satpal had confessed before the police and this witness that they have killed Deepu and his dead body is lying here. The dead body was recovered. This witness has identified his signature on the recovery memo Ext. Ka-19. This witness has stated that Sukhdeep Singh @ Deepu is his real nephew. This witness belongs to Sahajahanpur. He came to Sitarganj on hearing the killing of Sukhdeep Singh. Sukhdev Singh informed him telephonically that Sukhdeep Singh @ Deepu has been killed. In the cross examination this witness has, among other things, stated that he had signed on many papers in the presence of police and on the direction of the police. He had identified the dead body on the spot. The dead body was recovered on the disclosure of Gurudev. He has also stated that the accused persons 12 did not give any statement to the police in his presence before the recovery of the dead body. No such statement was got signed by the accused either. Accused Gurudev has disclosed the police that the child is still alive and he will get the child recovered and this fact was disclosed to the Investigating Officer. None of the accused disclosed before this witness the manner in which he was killed but he knows that Deepu died of strangulation because this fact was confessed by Gurudev before the Investigating Officer. He left for his house at district Sahajahanpur after 4-5 days of 29.03.1998. He does not remember whether site plan was prepared by the investigating officer or not. 13. Thus, there is no evidence against the accused persons except the evidence of Section 27 Indian Evidence Act, which too is very weak and not convincing. Last seen evidence is not there, whereby it could be said that the deceased was seen in the company of the accused persons / appellants. There is no direct evidence of killing of Deepu either. It has been argued on behalf of the appellants that the original letter has not been produced by the prosecution agency. They have submitted the photocopy before the Court. The original letter said to be written by Satpal Singh and given to Ramdhani is certainly not there. No doubt, a heinous crime has been committed in respect of deceased Deepu, but there is no convicting evidence against these accused / appellants. P.W.1 Manjeet Kaur was the last person who saw the boy. Her statement is that the boy was missing thereafter. She is 13 the last witness who had seen her child. The ransom letter received by the father of the victim on 29.03.1998 is unnamed (original not produced). Then the report under Section 364-A of I.P.C. was lodged and investigation started. Accused Ramdhani who has handed over the letter of ransom has been acquitted. (There is no appeal against the same). Ramdhani disclosed the name of Satpal Singh. The letter was given to the Investigation Officer but has not been produced, only photocopy has been presented. No explanation has been offered as to why the original has not been produced. Disclosure statement of accused / appellants has not been recorded. Ramdhani disclosed the name of Satpal and police arrested him. Ransom letter was handed over to police and investigation started. The person was missing since 09.03.1998 and the discovery was made on 29.03.1998. The dead body was buried in a field. The body was in decomposed state. 14. Initially there were five accused. Out of the five, three accused have been acquitted. Accused Swaran Singh, Jaspal Singh and Ramdhani were acquitted. Only accused Gurudev Singh and Satpal Singh have been convicted for the offences punishable under Section 364-A and 302 I.P.C. Recovery memo Ext. Ka-7 does not bear the signatures of accused / appellants Gurudev Singh or Satpal Singh. It bears the signatures of Satyapal Singh though, but he is a witness and not accused Satpal Singh, as is evident from recovery memo Ext. Ka-8, which makes it clear that it 14 is witness Satyapal Singh son of Dr. Sardar Singh r/o Dasmesh Financer, Kicha Road, Sitarganj, district Udham Singh Nagar. Thus, the recovery memo is not signed by any of the appellants. The prosecution was supposed to show that it was on the disclosure of the accused / appellants that the recovery was made. The witnesses are saying that the father of the victim was present but his signatures are not there. There is no arrest memo, no disclosure memo, no confessional statement. The Investigating Officer did not present ransom letter. It is only P.W.2 Sukhdev Singh who has presented the photocopy of the letter. Investigating Officer also admitted that he did not submit this ransom letter. The fact remains that the accused did not object to the filling of the photocopy and it is exhibition. Yet the fact also remains that it is inadmissible in evidence. It was also contended on behalf of the appellants that one Sub Inspector who was doing investigation earlier has been produced. The doctor has said that the cause of death could not be ascertained as the viscera is preserved. 15. Learned A.G.A. has agreed that the disclosure statement is not there and the discovery statement Ext. Ka-7 admittedly does not contain the signatures of the accused / appellants. He has placed reliance upon the Ruling of the Golakonda Venkateswara Rao vs. State of A.P. (2003) 9 Supreme Court Cases 277 to show that the court relied upon prosecution story even in a case where the disclosure statement and the recovery memo did not bear the signature of the accused. 15 16. Learned A.G.A. has, as a matter of duty, tried to justify the absence of signatures of the accused / appellants on recovery memo. It may be pointed out at the very outset that the facts of the instant case are quite distinct from Golakonda’s case. As has been discussed earlier, there is no arrest memo of the accused / appellants in this case, no disclosure memo and although, the recovery memo is there but that does not bear the signatures of any of the accused / appellants. In para 15 of Golakonda’s case, the hon’ble Supreme Court has held that the provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently, the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime then cannot be false. In this case no incriminating article has been recovered at the alleged discovery of the accused / appellants. The dead body was recovered, allegedly at the instance of accused / appellants. The field where the dead body of the victim was buried is a public place where anybody can have free access. The victim is said to have died because of strangulation. Even the arrest memo of the accused / appellants is not there so as to suggest that they were, infact, arrested by the police as per prosecution story, 16 they confessed their guilt and on their discovery the recovery was made. The recovery in this case is hardly convincing, as against the case of Golakonda Venkateswara Rao, in which the incriminating articles were retrieved from the well, pieces of langa dug out and unearthed that were not found lying on the surface of