IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Criminal Appeal No. 58 of 2004 With Criminal Reference No. 3 of 2004 And Criminal Appeal No. 56 of 2004 Date of decision: 24th August, 2004 For the approval of: Hon'ble Chief Justice V.S. Sirpurkar. Hon'ble Mr. Justice Irshad Hussain. - Whether the order/judgment should be sent to the reporters for reporting? ( Yes ) - Whether the reporters be allowed to see the judgment? ( Yes ) G IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Crl. Appeal No. 58 of 2004 Surendra Singh @ Babloo, S/o Shri Bhopal Singh, R/o Landhora, Police Station Manglaur, District Haridwar. ------ Appellant Versus State of Uttaranchal ------- Opposite Party WITH Crl. Reference No. 3 of 2004 State of Uttaranchal Versus Surendra Singh @ Babloo, S/o Shri Bhopal Singh, R/o Landhora, Police Station Manglaur, District Haridwar. ------ Acccused & Crl. Appeal No. 56 of 2004 Smt. Naresho, W/o Late Shri Shiv Kumar @ Shibbu, R/o Landhora, Police Station Manglaur, District Haridwar. ------ Appellant Versus State of Uttaranchal ------- Opposite Party …….. Mr. Rajendra Singh, learned counsel for the appellants. Mr. D.K. Sharma, learned Government Advocate for the State. Coram: Hon’ble V.S. Sirpurkar, C.J., Hon’ble Irshad Hussain, J. Date: 24th August, 2004 (Per Hon’ble the Chief Justice) 1. This Judgment shall dispose of the criminal appeal No. 58 of 2004 along with criminal reference No. 3 of 2004 and also the criminal appeal No. 56 of 2004. Criminal appeal No. 56 of 2004 has been filed by the accused Smt. Naresho against the conviction under Section 120-B I.P.C. and the resultant sentence for life imprisonment. Criminal appeal No. 58 of 2004 has been filed by the accused Surendra Singh, who is also convicted for the same offence under Section 302 I.P.C., but has been awarded death sentence. A reference is made only for confirmation of the death sentence awarded by the Sessions Judge. Needless to mention that both the accused- appellants were tried in a common sessions trial, where one Shiv Kumar alias Shibbu was said to have been murdered in the night of 23/24 February, 1993. While accused Surendra Singh, who was accused No. 1 in the trial, was charged with a substantive offence, the accused Naresho, who was accused No. 2 in the trial, was roped-in in the aid of section 120-B I.P.C. In this judgment, the accused persons shall be referred either by their names or by their original accused number during the trial. 2. The deceased Shiv Kumar alias Shibbu was the husband of original accused No. 2 Naresho and they resided with their father Molhar Singh at Village Landhora, Police Station Manglaur, District Haridwar. Deceased Shiv Kumar was in the business of selling milk. Mosoum (PW1) S/o Shauqut Ali used to go to the house of the deceased Shiv Kumar for milking the cattle and collection of milk. When he went to the house of Shiv Kumar in the morning of 24th February, 1993, he found Shiv Kumar sleeping near the cattle shed, who did not wake up on being awakened. However, Mosoum (PW1) went inside, at that time, original accused No. 2 Naresho enquired whether it was a milkman, who had come. On that, he asked for a bucket for milking the cattle. However, he found that the said room, from which the original accused No. 2 Naresho was talking to him, was locked. Naresho, then passed him the key through the window. He opened the lock and original accused No. 2 Naresho, then, gave him the bucket. Both of them came to the cattle shed, where Shiv Kumar was sleeping. Again, Naresho tried to wake up Shiv Kumar, but he did not wake up on which, Naresho started crying. Mosoum (PW1), therefore, went to the nearby house of Niranjan Singh (PW2), who came with him there. He also tried to wake up Shiv Kumar. However, finding that Shiv Kumar was not speaking, he removed the quilt and found that he was not breathing nor was there any pulse. He, therefore, went to call the doctor. In the meantime, neighbour Krishan Pal Singh (PW3) and his wife also came there. Son of Krishan Pal Singh (PW3) came with a torch. The doctor also came and all of them found that Shiv Kumar’s neck was cut. There was blood on the bed as also on the ground. This was at about 6’O Clock in the morning. 3. Niranjan Singh (PW2) got a report scribed through Ajay Kumar and gave it at the Police Station. After registering the offence, D.P. Tyagi (PW12), Incharge of the Police Station Manglaur, came on the spot along with him. He started the investigation and recorded the Panchayatnama. He seized the blood stained articles in presence of the Panchas. He then recorded the statement of witnesses. The prosecution alleges that the original accused No. 1 Surendra Singh came to Krishan Pal Singh (PW3) in the afternoon of 24th February, 1993 and confessed that he had illicit relations with original accused No. 2 Naresho, the wife of the deceased Shiv Kumar and that she was also carrying his baby and that this was suspected by the deceased Shiv Kumar, who used to beat his wife, original accused No. 2 Naresho and refuse to give her food and Naresho use to be hungry and without food when he used to beat her and could not see the sufferings of Naresho. In his further confession to Krishan Pal Singh (PW3), he had said that Naresho insisted that if Shiv Kumar is not eliminated, even the child, whom she is carrying in her womb, would die along with her. She, therefore, insisted that Shiv Kumar should be eliminated. It is the prosecution’s case that in his confession, original accused No. 1 Surendra Singh also said that he had tried to commit the murder on 18th February, 1993 too, but at that time, the sickle (Gandasa) was not available and on that, he was chided by original accused No. 2 Naresho that he had not kept his promise. He, further, confessed that on 23/24th February, 1993 at about 2 or 2:30 in the night, he had gone to Shiv Kumar and had asked for a bidi by waking him up, but Shiv Kumar said that there was no bidi available and therefore, he went to his own house and then, again, at about 4’O Clock, he went to Shiv Kumar’s house, found that he was sleeping and hence, gave two blows with the sickle because of which, Shiv Kumar died. He, further suggested that he went to Naresho, who was sleeping inside and told her that he had murdered Shiv Kumar and asked for the lock & key. He locked Naresho inside the room and passed the key through the window to Naresho. He, then, beseeched Krishan Pal Singh (PW3) to save him. 4. Original accused No. 1 Surendra Singh came to be arrested on the basis of the statements of the witnesses, which include Kalu Ram (PW6) and Santu (PW7), who claimed that they had seen original accused No. 1 Surendra Singh coming out of the house of the deceased Shiv Kumar during that night. Molhar Singh, the father of the deceased was not present on that day. He was called from Haridwar. It is the prosecution’s case that on 26th February, 1993, on his asking original accused No. 2 Naresho as to how this has happened, Naresho confessed to him that she had illicit relations with original accused No. 1 Surendra Singh and the deceased Shiv Kumar was murdered at his instance. The Investigating Officer had sent the dead body for post mortem. Post mortem was committed by the doctor. Eventually, the accused came to be arrested, who in presence of the witnesses, produced the sickle and his blood stained clothes from inside his house. The blood stained articles were also sent to the chemical analyser. Ultimately, a charge-sheet came to be filed against the accused persons and the charges were framed. Both the accused persons abjured the guilt and faced the trial. 5. During the trial, the prosecution examined as many as about 12 witnesses, out of whom, Mosoum (PW1) was the one, who had, for the first time, seen the body. Niranjan (PW2) had given the report. Krishan Pal Singh (PW3) was the chairman of the Village. He acted as a Panch also and deposed about the extra-judicial confession made to him on 24th February, 1993 by the original accused No. 1 Surendra Singh. Molhar Singh (PW4), the father of the deceased Shiv Kumar, deposed about the extra-judicial confession made to him by the original accused No. 2 Naresho. Dr. B.L. Verma (PW5) conducted the post mortem of the dead body. Kalu Ram (PW6) deposed that he had seen original accused No. 1 Surendra Singh at about 4’O Clock, when Surendra Singh was coming out of the house of Shiv Kumar and at that time, he was armed with sickle. Santu (PW7) asserted that he had seen original accused No. 1 Surendra Singh coming out of the house of the deceased Shiv Kumar at about 2’O Clock. Samay Singh (PW8) was the witness, who turned hostile. He was a witness on the recovery of the sickle. Smt. Shanti (PW9) is the one, who spoke about the relations between original accused No. 1 Surendra Singh and original accused No. 2 Naresho. PW10, PW11 and PW12 are the police witnesses. 6. On the basis of this evidence, the Sessions Judge, Haridwar, who tried the accused persons, came to the conclusion that the two accused persons had conspired together to eliminate deceased Shiv Kumar in pursuance of their illicit relationship. He also held that it was in pursuance of that illicit relationship, that original accused No. 1 Surendra Singh committed the murder. Sessions Judge, therefore, convicted the original accused No. 2 Naresho only with the offence under section 120-B for conspiring for murder and sentenced her with rigorous imprisonment for life and fine of Rs. 2,000/-, while he awarded death sentence to original accused No. 1 Surendra Singh and also imposed a fine of Rs. 2,000/-. 7. It is this verdict, which is in challenge before us. 8. Mr. Rajendra Singh, learned counsel appearing on behalf of both the accused persons in both the appeals, contends before us that this was purely a case of circumstantial evidence and the prosecution had miserably failed to bring home the guilt to the accused. The learned counsel contended that so far as the original accused No. 1 Surendra Singh is concerned, firstly, the evidence of Kalu Ram (PW6) and Santu (PW7) was wholly unreliable. They were chance witnesses and the learned Sessions Judge has erred in relying upon their evidence. Learned counsel, then contended that the evidence of Krishan Pal Singh (PW3) was liable to be rejected and the story about the extra-judicial confession was bound to be disbelieved as there was no reason for the original accused No. 1 Surendra Singh to go to him and confess. Learned counsel assails the evidence of Molhar Singh (PW4) suggesting that he was interested witness and could not be accepted as it was wholly unnatural that the original accused No. 2 Naresho would confess her guilt before him. Learned counsel, further argues that the learned Sessions Judge has erred in law in relying on such confessions. Learned counsel came very heavily on the so called recovery of the blood stained clothes and the sickle and further pointed out that the prosecution had not been able to connect these articles with the accused. He pointed out that the investigation was defective and there was absolutely no evidence regarding their being any illicit relationship between the original accused No. 1 Surendra Singh and original accused No. 2 Naresho. According to Mr. Rajendra Singh, learned counsel, the very basis of the prosecution’s case was knocked off as the prosecution had not been able to prove anything regarding the illicit relationship between the two accused persons. Learned defence counsel, lastly contended that even if the original accused No. 1 Surendra Singh could be convicted for the offence charged, he could not have been ordered to be sent to the gallows since this was not, at all, a case, which could be categorised as the rarest of the rare case. In so far as the original accused No. 2 Naresho is concerned, he pointed out that there was absolutely no evidence of any conspiracy and the only evidence available against her was the so called extra-judicial confession, which by itself, is a very vague piece of evidence. He, therefore, contended that the prosecution had not been able to establish the individual circumstances or the link of those circumstances pointing only towards the guilt of the accused persons. 9. As against this, Mr. D.K. Sharma, learned public prosecutor urged that the prosecution had completed the chain of circumstances and that established the offence against both the accused persons beyond any reasonable doubt. The public prosecutor says that the evidence of confessions was genuine and there was a clinching evidence in the evidence of the two witnesses, namely, Kalu Ram (PW6) and Santu (PW7), who had seen the original accused No. 1 Surendra Singh coming out of the house of the deceased Shiv Kumar. He further pointed out that it was, but natural for the original accused No. 2 Naresho to have confessed her guilt before her father-in-law. He also pointed out that there could be no direct evidence regarding the illicit relationship between the two accused persons, but the prosecution had been able to establish such illicit relationship providing a strong motive for the heinous act of murder committed by the original accused No. 1 Surendra Singh. He, further, pointed out that the presence of human blood was well established on the clothes taken out at the instance of original accused No. 1 Surendra Singh and that would clinch the issue as there was no reasonable explanation by the accused about the same. According to the learned public prosecutor, the evidence was sufficient enough to rope in both the accused persons. Learned public prosecutor, further, very strongly supported the death sentence and suggested that the original accused No. 1 Surendra Singh was having illicit relationship with a married woman Naresho and was, thus, a menace to the society. He had not only committed and offence, but had also mercilessly eliminated the deceased Shiv Kumar removing him from his way. Therefore, Trial Court was justified in awarding death sentence to him. 10. On this backdrop, we have to see whether any offence can be said to have been established and proved against both the accused persons and whether the Trial court was justified in awarding death sentence to the original accused No. 1 Surendra Singh. 11. There can be no doubt that Shiv Kumar died a homicidal death. Dr. B.L. Verma (PW5), who conducted the post mortem, has found as many as three injuries, all the three being incised wounds on the neck of the deceased Shiv Kumar. They were lacerated incised wounds of substantial measure. The first injury was 8.5 c.m x 4 c.m., the second injury was 8.5 c.m. x 3.5 c.m. These two injuries were on the neck because of which, Oesophagus, Carotid and Trachea were found to be cut. The third injury was on the collar bone, which was bone deep resulting in the fracture of the collar bone. Thus, it is clear that the three injuries were sufficient to cause death. The doctor had also opined that the first two injuries were possible by a blow of the sickle with its sharp edge while the third injury was possible by the handle of the said sickle. There is hardly any cross-examination. However, very strangely, the doctor has admitted that the death could be possible even at about 9’O Clock at night on 23rd February, 1993. We do not have to go into the question of homicidal death because it is apparent that the death has occurred on account of murderous blows. 12. The question, however, is whether the accused persons or anyone of them can be said to be responsible for this murderous act. For this reason, in so far as the original accused No. 1 Surendra Singh is concerned, the prosecution relies mainly on the following factors: i. His illicit relationship with original accused No. 2 Naresho and the so called conspiracy with Naresho for eliminating Shiv Kumar by way of a motive for murder. ii. His extra-judicial confession made to Krishan Pal Singh (PW3). iii. His being seen at 2’O Clock by Santu (PW7) and at 4’O Clock by Kalu Ram (PW6) while coming out of the house of the deceased Shiv Kumar. iv. The recovery of blood stained clothes and the sickle on which human blood was found. 13. In so far as the original accused No. 2 Naresho is concerned, the prosecution relies on her illicit relationship with original accused No. 1 Surendra Singh and her extra-judicial confession made to her father-in-law Molhar Singh (PW4). 14. Since, the issue of illicit relationship is common, we will concentrate on that question. In support of there being illicit relationship in between the two accused persons, apart from the extra- judicial confessions, the main witness appears to be Smt. Shanti (PW9), wife of Ram Chandra. She alleged that she knew the deceased Shiv Kumar and she used to visit original accused No. 2 Naresho from time to time and Naresho always used to wear old dirty clothes and without any vermilion mark. She had seen original accused No. 1 Surendra Singh and original accused No. 2 Naresho standing near ‘Patoda’ probably the compound. In the first place, this witness admitted that she was the grandmother of the deceased Shiv Kumar. Even taking her evidence to its maximum height, it can be said that she had, at the most, seen Naresho and Surendra Singh standing near the compound. This would hardly establish any illicit relationship between the two. We, therefore, refuse to rely on the evidence of this witness. The other direct evidence made available by the prosecution is Kalu Ram (PW6). He had, in his examination-in-chief, asserted that original accused No. 1 Surendra Singh had illicit relationship with Shiv Kumar’s wife Naresho. In his cross-examination, though he asserted that this illicit relationship was known to the whole village, nothing had happened in between original accused No. 1 Surendra Singh and original accused No. 2 Naresho in his presence supporting such illicit relationship. A suggestion was given to him that he being the relation of Shiv Kumar, was giving a false evidence. He also admitted that after this incident, Naresho got married to someone else. We will come to the evidence of this witness later on. However, in so far as his assertion about the illicit relationship is concerned, beyond saying that this was known to the whole village, there is nothing to suggest such relationship. He has, in fact, admitted that nothing had happened in between the original accused No. 1 Surendra Singh and original accused No. 2 Naresho in his presence or that probably he had not seen anything between them, which go to show that the story regarding the illicit relationship is a myth. We are not prepared to believe this witness, at least in so far as the story of illicit relationship is concerned. That leaves in the fray only the so called extra-judicial confessions made by the original accused No. 1 Surendra Singh to Krishan Pal Singh (PW3) and by the original accused No. 2 Naresho to Molhar Singh (PW4), which we will independently consider. However, on the evidence of the witnesses, who, we have indicated above, there is nothing to suggest that there was any illicit relationship between the two accused persons. 15. We will, now, consider the next circumstance of the extra- judicial confessions. Krishan Pal Singh (PW3) is the chairman of the Village Landhora. Very significantly, he, in his examination-in-chief, does not said anything about any illicit relationship in between the original accused No. 1 Surendra Singh and Shiv Kumar, who was his neighbour. He was the one, who saw the dead body of Shiv Kumar. He also acted as a Panch on 24th February, 1993. In his evidence, he asserts that on the same day in the after noon i.e. on 24th February, 1993, original accused No. 1 Surendra Singh came to him and made the extra-judicial confession to him. The story given by him is full of unnatural details. Very significantly enough, though this story became available to him on 24th February, 1993 and though the police officers, including the Investigating Officer, were available in that place all through, it is not till the next day i.e. on 25th February, 1993 that his statement was recorded. If a clinching evidence like extra- judicial confession, suggesting Surendra Singh to be the perpetrator of the crime, had become available to this person, who is in public life, it is very unnatural that the same should not have been reported to the police on the same day. He asserts in his cross-examination that he, on the same day, went to meet the police to report about the extra- judicial confession made to him by the original accused No. 1 Surendra Singh. However, since, he was not able to meet the Investigating Officer, namely, Daroga Ji, he told this to Diwan Ji and came back. He had to admit in his cross-examination that on 25th February, 1993 the S.O. (PW12) came to his house and at that time there was nobody with him and it was on the same day ^^mlh fnu** that the original accused No. 1 Surendra Singh had come to his house in the afternoon. In his evidence, the Investigating Officer Mr. D.P. Tyagi (PW12) has asserted that after registering the crime, he had gone to the spot and after doing the necessary investigation, he had also recorded the statements of Bhopal Singh father of the accused Surendra Singh, Ved Pal, Krishan Pal Singh, Shuman Singh, Fagan Singh, Smt. Pratima, Naresh, Ilam Chandra, Santu, Kalu Ram etc. Now if the extra-judicial confession became available on 24th February, 1993, itself, there is no reason why, firstly, Krishan Pal Singh (PW3) should have waited till 25th February, 1993 to report such an important event and why his statement should have been recorded only on 25th February, 1993 at about 10 or 10:30 A.M. This delay raises the first suspicion. In this behalf, it is liable to be seen that Mukandi Lal Sharma (PW10), who had come along with the Investigating Officer on the spot, says in his cross-examination that after the body of Shiv Kumar was sent for post mortem, the police party remained on the spot for 5 or 6 hours. He candidly admits that all of them were present at the spot up to 4 or 5 P.M. This puts us on guard against Krishan Pal Singh’s (PW3) statement that the extra- judicial confession was made to him at about 2’O clock in the afternoon and that he had wanted to contact the police and had actually gone for that purpose at 4’O clock and since, he could not get the Investigating Officer, he came back only after intimating Diwan Ji. That Diwan Ji is not examined at all for the reasons known to the prosecution. 16. After all, it is not as if the witness had any special relationship with the original accused No. 1 Surendra Singh. Therefore, there was no earthly reason why the original accused No. 1 Surendra Singh should have gone and confessed about his illicit relationship as well as the dastardly act of murder. It is suggested to this witness by the defence in his cross-examination that firstly, no such statement was given to him. What puts us on guard against this extra-judicial confession is that it is extremely lengthy covering the aspects of, firstly, the