IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 56 of 2008 Rakesh and 2 others ….. Appellants. Versus State of Uttarakhand …… Respondent. Mr. K.S. Verma, Advocate for the appellants. Mr. Nandan Arya, learned A.G.A. for the State. With Criminal Appeal No. 59 of 2008 Ravivas …….. Appellant. Vs. State of Uttarakhand ……. Respondent. Mr. Amit Kapari, holding brief of Smt. Pushpa Joshi, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. Dated: March 26, 2010. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] As both the above appeals arise out against the same judgment and order dated 7-2- 2008, passed by Addl. Sessions Judge/ Ist F.T.C. Roorkee, in S.T.No. 298/2002 and S.T.No. 256/2003, therefore they are being decided by this common judgment. 2- By the impugned judgment the learned Additional Sessions Judge found accused/appellants Yogesh @ Marshal, Rakesh @ Dhola, Ravivas and Shivram guilty of offences U/Ss 364, 302/149, 201 and 147 I.P.C. and each of them was sentenced to undergo R.I. for seven years and a fine of Rs. 3000/- U/S 364 I.P.C. and in default of 2 payment of fine to undergo further R.I. for six months. All the accused/appellants were sentenced to life imprisonment and a fine of Rs. 5000/- each U/S 302/149 I.P.C. and in default of payment of fine to further undergo R.I. for one year. They were further sentenced to two years R.I. and a fine of Rs. 1000/- each U/Ss 201 I.P.C. and in default of payment of fine to further undergo R.I. for three months’. All of them were also sentenced to three months’ R.I. U/S 147 I.P.C. However, they were acquitted of the offence U/S 148 I.P.C. All the sentences were directed to run concurrently. 3- According to the prosecution case, on 12.12.2001 at about 8.00 a.m. Ajab Singh, younger brother of complainant Jal Singh had gone to Jhabrera but he did not return home till evening. The complainant and his relatives made search of him everywhere but he could not be traced out. The complainant got scribed the written report, Ext. Ka.1 by Vinay Kumar and lodged it at police station on 24.12.2001 after about 12 days of missing of Ajab Singh. On the basis of above F.I.R., missing report was lodged at P.S. Jhabrera on 24.12.2001 at 1.20 P.M. in report No.15. 4- The prosecution story further is that accused Yogesh @ Marshal was arrested by the police on 11-01-2002 in connection with case crime No. 01/2002 U/Ss 147, 148, 149, 364, 302 and 201 I.P.C. and during his interrogation he confessed his guilt and narrated this fact to the police that on 12- 12-2001, he along with his companions Shivram, Rakesh @ Dhola, Mursalin @ Diljala and Ravivas, carried Ajab Singh to the house of his maternal 3 uncle Jogendra R/o Bijopura P.S. Chapar District Muzaffarnagar, where the deceased was offered liquor and thereafter they took the deceased in the field and committed his murder by throttling his neck by a muffler and the dead body was concealed by digging a pit. On the confessional statement of accused Yogesh @ Marshal, police party proceeded towards the place where the dead body was concealed. The accused dugout the field of Dharampal of village Raigaon and brought out the skeleton. The further case of prosecution is that the skeleton was identified by Jal Singh and Dheer Singh brothers of the deceased by the make of teeth and foot-fingers. The police prepared recovery memo, Ext. Ka.3 and sealed the skeleton and sent it for post mortem. The police after completion of investigation submitted charge sheet, Ext. Ka.8, against accused Yogesh @ Marshal, Rakesh @ Dhola and Ravivas. As accused Shivram and Mursalin were absconding, therefore, charge sheet was also submitted against them. Accused Mursalin did not appear later-on hence his case was separated from accused Shivram. 5- Dr. Bipin Chand Gupta, Medical Officer, District Hospital, Muzaffarnagar conducted the autopsy on the dead body on 12.1.2001 at 4.30 P.M. According to the doctor whole body was decomposed and only skeleton was there. Hair from the scalp and nails from nail bed were easily plucked, membranes and brain were decomposed. Lungs were soft and collapse. As the body was decomposed, no opinion about the cause of death was possible. 4 6- The Judicial Magistrate Roorkee vide his order dated 22-10-2003 committed both the cases to the court of sessions for trial. 7- The learned Sessions Judge vide order dated 2-1-2003 framed charges U/Ss 147, 148, 364, 302/149 and 201 I.P.C. against accused Yogesh @ Marshal, Rakesh @ Dhola and Ravivas and vide order dated 17.12.2003 framed charges U/Ss 147, 148, 364, 302/149 and 201 I.P.C. against accused Shivram. All the accused denied the charges and claimed their trial. 8- The trial court consolidated both the cases and recorded evidence in one sessions trial. Thereafter pronounced the common judgment. 9- The prosecution in support of its case has produced P.W.1, Jal Singh, complainant of the case, P.W.2, Dheer Singh, P.W.3, Hukam Singh, P.W.4, Jodha Singh, P.W.5, Constable Hitlar Singh, P.W.6, Rajendra Kumar, P.W.7, Ailam Singh, P.W.8, I.O. S.I. Vimal Chand Tamta, P.W.9, Head Constable Ompal Singh, P.W.10, S.I. Prempal Singh and P.W.11, Dr. Bipin Chand Gupta. 10- The accused in their statement U/S 313 Cr.P.C. denied the prosecution case and alleged that they have been falsely implicated in the crime. 11- The learned trial court after hearing learned counsel for the parties and considering the entire evidence on record convicted all the accused/appellants for an offence U/Ss 364, 5 302/149, 201 and 147 I.P.C. and accordingly sentenced them. 12- Being aggrieved by the impugned judgment and order, the accused/appellants have come up in appeal before this court. 13- We have heard learned counsel for the parties and perused the record. 14- There is no eyewitness of the occurrence and the prosecution case rests on circumstantial evidence. In a case based on circumstantial evidence, the following conditions must be fulfilled before a case against an accused can be said to be fully established- 1- the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established. 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, 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 6 show that in all human probability the act must have been done by the accused. 15- In the instant case the prosecution has relied on the following circumstances- (1) the deceased was lastly seen in the company of the accused/appellants. (2) the skeleton of the deceased was recovered at the instance of accused/appellant Yogesh @ Marshal and, (3) extra-judicial confession of the accused/appellant Yogesh @ Marshal before the police. 16- Learned defence counsel has argued that the prosecution has not been able to prove any of the above circumstances against the accused/appellants by a cogent and reliable evidence and the chain of circumstances is not complete therefore all the accused/appellant are entitled for acquittal. 17- Now it is to be seen as to whether the prosecution has been successful in establishing all the above circumstances against the accused/appellants or not?. The first circumstance is of last seen. The prosecution version is that the deceased Ajab Singh was lastly seen with accused Rakesh, Yogesh, Ravivas, Mursalin and Shivram at Jhabrera at 12.00 noon on 12.12.2001. P.W.1, Jal Singh brother of the deceased himself had not seen the deceased Ajab Singh in the company of the accused/appellants but he was informed this fact by Jodh Singh and Yogesh. In the cross- examination this witness has deposed that Rajendra 7 had informed about last seen after he had lodged the report and he had narrated this fact to the place on 28th and 29th January. This conduct of the witness is unnatural. Therefore, the deposition of this witness is insignificant. 18- P.W.2, Dheer Singh is the another brother of deceased Ajab Singh. The evidence of this witness is also of no use. He has simply stated that on 12.12.2001 at 8.00 a.m. his brother Ajab Singh had gone to Jhabrera and thereafter he did not return. 19- Statement of P.W.4, Jodh Singh could be of much importance on the point of last seen, as the prosecution version is that this witness had lastly seen the deceased in the company of the accused on 12.12.2001 at Jhabrera, but this witness has denied this fact in his on oath statement. He has specifically deposed that he had not seen deceased Ajab Singh in the company of accused Yogesh, Rakesh, Shivram, Ravivas and Mursalin. This witness has been declared hostile by the prosecution. The another witness of last seen is P.W.6, Rajendra Kumar. He has deposed that on 12.12.2001 at about 2-2.30P.M. he had seen Ajab Singh in the company of all the five accused at Pukarjit wine shop. This witness has admitted in his examination-in-chief that he is co-brother of deceased Ajab Singh. Presence of this witness at the place of last seen is doubtful. In his cross- examination he has deposed that he is residents of village Noor Nagar and the place where he had seen the accused along with the deceased is about 7-8 kilometers away from his village. He had never 8 visited that place earlier and later of the day when he saw the accused persons there. He has not stated as to why he had come to that place. This witness also does not know the parentage of the accused persons. No reason has been shown as to why this witness kept mum for a long time and why the factum of last seen was brought to the notice of the police on 27th and 28th January, after about 1½ months. Therefore, the testimony of this witness does not inspire confidence and his testimony cannot be relied upon, particularly when the other witnesses Jodh Singh, P.W.4, and Ailam Singh P.W.7, did not support the factum of last seen and they had turned hostile. In the above facts and circumstance of the case, we come to the conclusion that the prosecution has not been able to establish the first circumstance of last seen against any of the accused/appellants. 20- Now we come to the second circumstance of recovery of skeleton at the pointing out of the accused Yogesh @ Marshal. The prosecution version is that accused Yogesh @ Marshal was arrested on 11-1-2002 in connection with case crime No. 01/2002 and during interrogation he confessed his guilt and on his pointing out the skeleton was recovered. It is well settled principle of law that the court while appreciating the evidence would exclude the rest of the information given by the accused to the police officer except information as relates distinctly to the fact thereby discovered. The Hon’ble Apex Court in Anter Singh Vs. State of Rajasthan 2005 SCC (Cri) 597 has held as under:- “15. at one time it was held that the expression “fact discovered” in the section is restricted to a 9 physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this as noted in Pulukuri Kottaya V. Emperor, AIR 1948, PC 67 and in Udai Bhan v. State of U.P., AIR, 1962 SC 116. 16. The various requirements of the section can be summed up as follows: (1) the fact of which evidence is sought to be given must be relevant to the issue. It is must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused’s own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or 10 strictly to the fact discovered can be proved. The rest is inadmissible. 21- It is to be pointed out here that the investigating officer did not record the confessional statement of the accused Yogesh before proceeding to the place of recovery and he has simply prepared the recovery memo Ext. Ka.3. Further the skeleton recovered at the instance of accused Yogesh was not identifiable. According to prosecution, the witnesses have identified the skeleton by make of teeth and foot-finger bones. No identification mark was disclosed by any of the witness in order to connect the dead body actually with the deceased Ajab Singh. Therefore, the dead body (skeleton) could not be identified. Prosecution has produced witnesses of recovery P.W.1, Jal Singh, P.W.2, Dheer Singh, P.W.3, Hukam Singh, P.W.4, Jodh Singh, P.W.5, Hitlar Singh, P.W.7 Ailam Singh, P.W.8, Vimal Chand Tamta and P.W.10, S.I. Prempal Singh. Out of these witnesses, P.W.4, Jodh Singh and P.W.7, Ailam Singh did not support the prosecution version and they have been declared hostile. The deposition of police personnel P.W.8 Vimal Chand Tamta and P.W.10 S.I. Prempal Singh is not admissible in evidence and only the discovery part of their statement is to be taken into consideration. The other witnesses of alleged recovery are P.W.1, Jal Singh, P.W.2, Dheer Singh, both are brothers of deceased and presence of P.W.3, Hukam Singh at the place of recovery is highly doubtful. This witness has not deposed in his statement how he had reached at the place of recovery. The recovered skeleton was not having any mark of injury. The doctor P.W.11, Bipin Chand Gupta has deposed 11 that the body was completely decomposed and only bones were there. The doctor has noted the name, age and address of skeleton on the basis of police papers and the skeleton was not identified before him. In this way the skeleton could not be identified and with certainty it cannot said that the skeleton was of deceased Ajab Singh. Therefore, the evidence on this point is not consistent only with the hypothesis of the guilt of the accused, as the skeleton so recovered also suggest that the same might belong to some other person. Thus, we find that the prosecution has not been able to establish this circumstance also against the accused/appellants beyond all reasonable doubts. 22- The last circumstance relied upon by the prosecution, is extra-judicial confession. P.W.8, Vimal Chandra Tamta and P.W.10, S.I. Prempal Singh have deposed that after the arrest of accused Yogesh @ Marshal he confessed his guilt and has stated that on 12.12.2001 he along with accused Rakesh, Shivram, Ravivas, Mursalin carried Ajab Singh deceased to the jungle and committed his murder and thereafter concealed his dead body in a pit. This part of statement of both the police personnel is not admissible in evidence. It is also pertinent to mention here that the investigating officer, before whom the accused Yogesh has confessed his guilt, has not recorded his confessional statement on separate sheet which is mandatory requirement of law. The I.O. has only mentioned in the recovery memo, Ext. Ka.3 that the recovery is being made at the instance of the accused Yogesh. Thus the confessional statement of 12 accused Yogesh @ Marshal has no value and no reliance can be placed on it. 23- Thus, in view of above discussion, we are fully satisfied that the prosecution has not been able to establish the circumstances in the case and the chain of circumstances is not complete. 24- It will not be out of place to mention here that none of the prosecution witnesses has deposed the motive with the accused/appellants for committing the murder of Ajab Singh. There is not a single whisper in the entire prosecution case with regard to motive of commission of crime, and this also suggest towards the innocence of the accused/appellants. 25- For the reasons recorded, above we are of the view that the trial court has committed a manifest error in convicting the accused/appellants. We find that the prosecution has failed to establish its case against the accused/appellants, hence all the accused/appellants are entitled for an acquittal. 26- Accordingly the appeals are allowed. The impugned judgment and order is set aside. The conviction and sentences of accused/appellants passed by the trial court are hereby quashed. All the accused/appellants Rakesh @ Dhola, Yogesh @ Marshal, Shivram and Ravivas are acquitted of the charges U/Ss 364, 302/149, 201, 147 I.P.C. levelled against them. 13 27- The accused/appellants are in jail. They shall be released forthwith if not wanted in any other connection. 28- Let the record be transmitted to the trial court for compliance forthwith. 29- Let a copy of this judgment be placed in the file of Criminal Appeal No. 59/2008. (Nirmal Yadav, J.) (B.C. Kandpal, J.) ISB