Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -1- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 292-DB of 1998 Date of decision, Jaunuary 31 , 2008 1. Anil Kumar s/o Mundrika parsad r/o Begma Di Haveli, Prachin Kali Asthan, Thana Chowk, Patna (Bihar) at present new Madhopuri, Ludhiana. 2. Rakesh Kumar s/o Dharampal H.No.1268/21, Mohalla Dhoka Baba Than Nagar, Police Station Divn. No.3, Ludhiana. ....... Appellants/accused Versus State of Punjab. ........ Respondent Present: Mr. A.S. Kalra, Advocate for the appellants. Mr. S. S. Bhinder, Additional Advocate General, Punjab. Crl. Appeal No. 362-DB of 1998 Date of decision, Jaunuary , 2008 Madan Lal s/o Sh. Sain Dass r/o old Milk Mandi, Ambala. ....... Appellant/accused Versus State of Punjab. ........ Respondent CORAM: HON'BLE MR. JUSTICE J.S. KHEHAR AND HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Kanwaljit Singh, Senior Advocate with Mr. Tajinder Bishnoi, Advocate for the appellants. Mr. S. S. Bhinder, Additional Advocate General, Punjab. ***** Sham Sunder, J. Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -2- This judgment shall dispose of the two criminal appeals referred to hereinbefore, bearing No.292-DB of 1998 filed by Anil Kumar and Rakesh Kumar, appellants and No. 302-DB of 1998 filed by Madan Lal, appellant, arising out of the judgment of conviction dated 1.6.1998, and the order of sentence, dated 1.6.1998, rendered by the Court of Additional Sessions Judge, Ludhiana, vide which it convicted the accused, for the offences punishable under Sections 364 and 302 IPC and sentenced them to undergo RI for a period of 5 years each, and to pay a fine of Rs.3,000/- each, in default of payment of fine to undergo RI for a period of three months each for the offence punishable under Section 364 IPC, and further sentenced them to imprisonment for life and to pay a fine of Rs.10,000/- each, and in default of payment of fine to further undergoo RI for a period of six months each, for the offence, punishable under Section 302 IPC . It was further directed that in case of recovery of fine, the same shall be paid to the widow of the deceased, as compensation. The substantive sentences were ordered to run concurrently. 2. On 25.12.1994, Joginder Singh s/o Bhagwan Singh was present in his house at about 5.45 P.M.,when Rakesh Kumar, accused, accompanied by a Bhaiya ( a person from U.P.) came there, and wanted him to accompany them, for the settlement of some dispute Joginder Singh accompanied them, in a three wheeler, being driven by Madan Lal. At night, Rakesh Kumar and Madan Lal, accused, came back to their houses, but Joginder Singh did not return. Joginder Singh was searched, but he could not be traced. His father Bhagwan Singh made a statement, in the terms referred to above, on the basis whereof, report Ex. PW-5 /A in the Roznamcha was recorded by the police on 27.12.1994. Even, thereafter, Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -3- Joginder Singh was not traced and on 31.12.1994, his dead body was found in the area of Madhopuri, Ludhiana Bhagwan Singh, father of Joginder Singh, suspected that Rakesh Kumar and Bhaiya, referred to above, had committed the murder of his son. Thereafter, he made a statement Ex. PA, on the basis whereof, FIR Ex.PA/1 was registered. 3. Thereafter, Surjit Chand, Sub Inspector, S.H.O., at the relevant time, posted in Police Station Division No. 3, Ludhiana, along with Bhagwan Singh, father of the deceased, went to the, place where the dead- body of Joginder Singh, was lying in a drain. The dead-body was taken out of the drain, and inquest report Ex.PW/6/A of the same, was prepared. The dead-body was sent through Lakhbir Singh, Head Constable, to the hospital, for the purpose of conducting post-mortem examination, with request Ex. PW/6/B. Injury report Ex.PW/C, of the dead body was prepared. Site plan Ex.PW/6/D of the place, where the dead body of Joginder Singh, was found lying was prepared. Lakhbir Singh after the post-mortem examination produced a parcel of the clothes of the deceased, before Surjit Chand, Sub Inspector, vide memo Ex. PW4/A , in the presence of Harbhajan Singh, ASI. Thereafter, the accused were searched, but could not be traced. 4. On 19.1.1995, Ravinder Pal Singh Khalsa, Muncipal Councillor, met Surjit Chand, Sub Inspector, per chance, coming from the side of Samrala Chowk, and produced Madan Lal and Rakesh Kumar, accused before him. The statement of Ravinder Pal Singh Khalsa was recorded. These accused were formally arrested on 19.1.1995. The search of their person was conducted and the search memos Ex.PW6/F and PW6/G, were prepared, signed by them. Anil Kumar, accused, was later on arrested, in this case in pursuance of the warrant of arrest, obtained from Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -4- the Court. The case property was deposited with the M.H.C. on reaching the Police Station. The statements of the witnesses were recorded, at different stages of the investigation. After the completion of investigation, the accused were challaned. 5. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by Commitment, charge under Sections 364 and 302 IPC, was framed against the accused. It was read over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined Harjit Kaur, wd/o Joginder Singh, PW-1, Bhagwan Singh, father of Joginder Singh (deceased), PW-2, Dr. U.S. Sooch, PW-3, who along with Dr. G.P. Mangla, conducted the post-mortem examination on the dead-body of Joginder Singh, deceased, Harbhajan Singh, ASI, PW-4, Devinder Singh, H.C.,PW-5, Surjit Chand, SHO, PW-6, Harminder Singh, draftsman, PW-7 and Ravinder Pal Singh Khalsa, PW-8. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 7. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. The accused did not lead any evidence, in their defence, and closed the same. 8. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -5- hereinbefore. 9. Feeling aggrieved, against the judgment of conviction and the order of sentence, the instant appeal, was filed by the appellants/accused. 10. We have heard the learned Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 11. The learned Counsel for the appellants at the very outset contended that the case of the prosecution, being solely based on the circumstantial evidence, it was required of it, to complete every link in the chain thereof, but it failed to do. They further contended that the circumstance of last seen, was not proved, beyond a reasonable doubt. It was further contended that even if, the circumstance of last seen, is taken to be proved, on account of the long gap, between the date, when the deceased was allegedly seen, in the company of the accused, and when his dead body was found, such a circumstance, had no relevance, whatsoever, to prove the guilt of the accused. It was further contended by the Counsel for the appellants, that the prosecution also failed to prove beyond a reasonable doubt, that the accused made any extra judicial confession, before Mr. Ravinder Pal Singh Khalsa. They also contended that the prosecution also failed to prove that the death of Joginder Singh was homicidal. It was further contended by them, that the trial Court was, thus, wrong in recording conviction and awarding sentence to the accused virtually on the basis of no reliable evidence. 12. On the other hand, the learned Counsel for the respondent, submitted that the circumstance of last seen was proved beyond a reasonable doubt. He further contended that even Ravinder Pal Singh Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -6- Khalsa,PW-8, during the course of his-cross examination, admitted that the accused made extra judicial confession, before him, confessing their involvement, in the commission of crime. He further contended that it was for the accused to explain, as to where Joginder Singh, who was last seen in their company on 25.12. 1994, had gone. He further contended that since, they failed to explain the said circumstance, an adverse inference, could be drawn against them that they committed the murder of Joginder Singh. He supported the judgment of conviction and the order of sentence, recorded by the Lower Court. 13. The case of the prosecution is based on circumstantial evidence. When a case is based, on the circumstantial evidence, the Court is bound to be extra cautious, because the circumstantial evidence, has its own limitations. Before acting, on that evidence, the Court must first see, whether the circumstances, put forward, are satisfactorily proved, and whether the proved circumstances, are sufficient to bring home satisfactorily, the guilt to the accused. The established circumstances, must not only be consistent with the guilt of the accused, but at the same time, they must be inconsistent with his innocence. While appreciating the circumstantial evidence, the Court should not view, in isolation, the various circumstances. On the other hand, it is necessary to take an overall view of the matter, but without substituting conjectures for legal inferences. Incompatibility with the innocence, besides compatibility with guilt, is called for, in such cases, because incriminating circumstances, can also be introduced, during the investigation, and it is a matter of common knowledge, that at times, they are falsely introduced, by way of padding, by the investigating Agency. The acid tests, laid down, by the Hon'ble Apex Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -7- Court in Gambir V. State of Maharashtra, AIR 1982 (Supreme Court) 1157, Tarsem Kumar V. Delhi Administration, 1994(3) Recent Criminal Reports 587 (Supreme Court) and Sharad Birdhichand Sarda V. State of Maharashtra, 1984 CAR 263 (Supreme Court), for basing conviction, on the strength of circumstantial evidence alone, are enumerated as under : 1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established: 2. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; 3. The circumstances, taken cumulatively should from a chain, so complete, that there is no escape, from the conclusion, that within all human probabilities, the crime was committed by the accused and none else; and 4. The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis, than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.” 14. It is settled principle of Criminal Jurisprudence, that the prosecution is required to prove its case, against the accused, beyond a reasonable doubt. The Court is not required to act on mere suspicion, conjectures or surmises or suspicious circumstances, to bring home the guilt to the accused. In Datar Singh V. State of Punjab AIR 1971 (Supreme Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -8- Court) 1193, the principle of law, laid down, was to the effect, that it is often difficult, for the Courts of Law, to arrive at the actual truth, in criminal cases. The Judicial process can only operate on firm foundation of actual and credible evidence, on record. The mere suspicion or suspicious circumstances, cannot relieve the prosecution of its primary duty to prove its case, against an accused person, beyond a reasonable doubt. The Courts of justice cannot be swayed by sentiments or prejudice, against a person accused of the very reprehensible crime. They even cannot act on some conviction that the accused persons have committed a crime, unless their offence, is proved by satisfactory evidence of it, on record. If the pieces of evidence, on which the prosecution, choses to rest its case, are so brittle, that they can crumble, when subjected to close and critical examination, so that whole superstructure, build on such insecure basis collapses, proof of some incriminating circumstances, which might have given support to mere defective evidence, cannot avert failure of the prosecution evidence. In K.M. Nanwati V.State of Maharashtra A.I.R. 1962 (Supreme Court) 605, the principle of law, laid down, was to the effect, that it is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution, to prove his guilt, beyond a reasonable doubt. The prosecution,is under legal obligation, to prove each and every ingredient of the offence, beyond any doubt unless, otherwise so provided by any Statute. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution, can succeed only, on discharging its burden of proving the case, against the accused. Strongest of suspicion, does not constitute the proof required. Keeping in view the principle of law, laid down, in the cases Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -9- referred hereinbefore, now let us see, as to whether, the prosecution, was able to prove its case, against the accused, beyond a reasonable doubt. 15. The first circumstance, on which reliance, was placed by the prosecution, was that Joginder Singh(now deceased) was taken by Rakesh Kumar his neighbourer, Anil Kumar and Madan Lal on 25.12.1994 at about 5.45 P.M. in a three wheeler, on the ground, that there was some dispute with some Bhayias, in Madhopuri, and that he should get the matter settled, and thereafter, Joginder Singh did not come back to his house, and only his dead body was found on 31.12.1994. It is proved from the evidence of Harjit Kaur wd/o Joginder Singh, PW-1 and Bhagwan Singh, PW-2, father of Joginder Singh deceased that on 25.12.1994, at 5.45 P.M. , the accused aforesaid took Joginder Singh along with them, saying that there was some dispute with Bhayias and he should get the same settled. They also stated that thereafter, Joginder Singh did not come back, and only his dead body was found on 31.12.1994. In the first instance, when his dead body was not traced, a report was made by Bhagwan Singh, which was recorded in the DDR on 27.12.1994 and after the dead body of Joginder Singh was found, Bhagwan Singh made a statement, whereon, the FIR was registered, He suspected the accused, having committed the murder of his son. Since Rakesh Kumar, as per the statement of Harjit Singh was their neighbourer, if he along with two other accused, took Joginder Singh for the purpose of settlement of a dispute, with some Bhayias, that did not mean that they committed the murder of said Joginder Singh. Had the dead body of Joginder Singh been found, immediately after he was taken by the accused, along with them, for the purpose of settlement of a dispute, with some Bhayias, it would have been said that there was some live link and Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -10- nexus between the circumstance of last seen of Joginder Singh, deceased with the accused, and his death. However, the time gap between the circumstance of last seen and the death of Joginder Singh, being of about seven days, by no stretch of imagination, it could be said, that it were the accused and accused only, who could be held guilty for the commission of murder of said Joginder Singh. The accused were only required to furnish some explanation, as to where they left the company of Joginder Singh, deceased. During the course of cross examination of Bhagwan Singh, PW-2, a specific suggestion was put to him, by the Counsel for the accused, that Joginder Singh was left by them (accused) in Madhopuri, and they returned to their respective houses. It was for the Police to make verification,from various people at Madhopuri, as to whether, Joginder Singh had come along with the accused there and what happened between them and the Bhayias with whom the settlement of dispute, was to be got made, by him. (Joginder Singh) However, no such verification or investigation was conducted, by the Police. The trial Court, in its judgment, also held that the police was completely re-miss in the performance of its duty, in this regard. The accused were not required to prove the factum that they left the company of Joginder Singh at Madhopuri on 25.12.1994 ,itself beyond a reasonable time. No evidence was collected by the Police, during the course of investigation, as to how many persons met Joginder Singh, after the accused left his company on 25.12.1994, and what happened between him and those persons. In Sunny Kapoor Vs. State (UT of Chandigarh) 2006 (3) RCR (Criminal) 48,(S.C.) it was held that last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive, and the Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -11- deceased was found dead, was so small that possibility of any person, other than the accused, being the author of the crime, became impossible. In State of Goa Vs. Sanjay Thakran and another 2007 (2) RCR (Criminal) 458 (S.C.) , the evidence of last seen circumstance, was not believed, as there was time gap of 8-1/2 hours, when the deceased was seen alive, with the accused, and the commission of offence. In Bodh Raj alias Bodha and others Vs. State of Jammu and Kashmir (2002) 8 SCC 45 the principle of law, laid down, was similar to the one, as enunuciated in Sunny Kapoor's case (supra). It would be difficult, in some cases to positively establish that the deceased was last seen, with the accused, when there is a long gap and possibility of other persons, coming in between exists. In the absence of any other positive evidence, to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt, in those cases. Similar principle of law was laid down in State of U.P Vs. Satish , JT, 2005 (2) SC 153 and Ramreddy Rajeshkhanna Reddy and another Vs. State of Andhra Pradesh, 2006 (2) RCR (Criminal) 462. Keeping in view the principle of law, laid down, in the aforesaid authorities, the circumstance of last seen, pales into insignificance, on account of the time gap of 7 days, that lapsed between the point, when the accused and the deceased were last seen together, and when his dead body was found. Such a circumstance, could only raise suspicion in the mind of the Court. It is settled principle of law, that suspicion, how strong it may be, cannot take the shape of proof. Since the prosecution miserably failed to prove that the accused were the author of the crime, on the basis of last seen theory, the trial Court, was required to disbelieve such a circumstance. The trial Court, in our considered opinion, was wrong, in Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -12- relying upon such a circumstance, to hold that the accused were guilty. The trial Court was also wrong, in holding that the suggestion given to Bhagwan Singh by the Counsel for the accused, that Joginder Singh, deceased, was left by them at Madhopuri, proved their guilt. The submission of the learned Counsel for the appellant, in this regard being correct is accepted. 16. The prosecution also relied upon the extra judicial confession, which Anil Kumar, accused, allegedly made to Ravinder Pal Singh Khalsa, PW-8, confessing that he and his co-accused committed the murder of Joginder Singh (now deceased). The principle of law, culled out, the guidelines laid down, and the observations made in the below mentioned authorities, would be of great help, in determining the evidentiary value and the creditworthiness of the extra judicial confession, allegedly made by the accused. 17. In Satinder Pal Singh and others Vs. State of Punjab 2005 (4) RCR Criminal(P&H) (Division Bench) 495, the extra judicial confession made by the accused to a person, who had no influence with the police was held to be not inspiring confidence and the same was not relied upon to prove the guilt of the accused. In Jaswant Gir Vs. State of Punjab, 2006 (2) RCR (Crl.) 202, no reason was assigned by the prosecution as to why accused would confide in the PW, who was only an acquaintance and with whom he had no intimate relation. There was also no explanation by the PW as to why he did not take the accused to police station after confession. The testimony of PW was held to be doubtful and the accused was acquitted. In Sunny Kapoor's case (supra) the accused allegedly made extra judicial confession to a social worker. They were not known to each other. In these circumstances, it was held that it was wholly Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -13- unlikely that the accused would make extra-judicial confession, to a person, whom they never knew. Accordingly, the accused were acquitted by the Apex Court. In Kavita Vs. State of Tamil Nadu, 1998 (3) RCR (Criminal) 535 (SC), the principle of law, laid down, was to the effect, that there is, no doubt, that conviction can be based, on extra judicial confession, but it is well settled, that in the very nature of things, it is a weak piece of evidence. It is to be proved, just like any other fact, and the value thereof depends upon the veracity of the witness, to whom it is made. In Jaspal Singh alias Pali Vs. State of Punjab, 1977 (2) RCR 70 (SC), the principle of law, laid down, was to the effect, that the accused had no reason to go to the witness, and confess his guilt, by reposing confidence, in a person, who is inimically disposed towards him. In Jagtrar Singh & Jagraj Singh Vs. State of Punjab, 1998 (3) CRR (Crl.) 517, it was held that normally one could confess, before a person, in authority, or someone close to him, so that the said person may be able to render some help and not before the close relation of the deceased, who could not possibly render the accused any help. In Rahim Beg Vs. State of Uttar Pradesh, 1972 (Crl. L.J.), 1260, the principle of law, laid down, was to the effect, that extra judicial confession, is a weak piece of evidence, and it is most dangerous, to rely upon the same, to convict the accused, without corroboration. In Haramba Brahama Vs. State of Assam 1983 (Crl.L.J. 149 (SC), the principle of law, laid down, was to the effect, that it was dangerous to rely upon such an extra judicial confession, which did not make out a sense, without exact reproduction of words, spoken by the witness. It was also held, that if an extra judicial confession, is made to a person, having no intimacy, with the accused, and no reason is assigned, for making such an extra judicial confession, no Crl. Appeal No. 292-DB of 1998 and Crl. Appeal No. 362-DB of 1998 -14- reliance, can be placed thereon, for convicting the accused. In Baldev Raj Vs. State of Haryana 1991 (Crl.Courts Judgments 197 (SC), no doubt, the principle of law, laid down, was to the effect, that the extra judicial confession, could be relied upon, by the Court, if