Criminal Appeal No.384-DB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.384-DB of 2002 Date of decision: January 22 ,2008 1. Ravinder Kumar son of Parbhu Dayal, resident of Hazariwas, District Rewari. 2. Mukesh alias Bala son of Mool Chand, resident of village Hazariwas, District Rewari. .......appellants. Versus State of Haryana .......respondent CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE SHAM SUNDER Present: Mr.R.S.Cheema,Senior Advocate with Mr. Pawan Girdhar, Advocate for the appellant. Mr. Deepak Girotra, Assistant Advocate General, Haryana. Sham Sunder,J. This appeal is directed against the judgment of conviction dated 10.4.2002, rendered by the Court of Additional Sessions Judge, Rewari, vide which it convicted Mukesh alias Bala and Ravinder Kumar, accused, for the offences punishable under Sections 302, 376 read with section 511 and 201 of the Indian Penal Code and the order dated 16.4.2002, whereby it sentenced them to undergo imprisonment for life each and to pay a fine of Rs.5000/- each, and in default of payment of fine to undergo RI for a period of Criminal Appeal No.384-DB of 2002 2 two years each, for the offence punishable under Section 302 I.P.C; further sentenced them for a term extending to half of the imprisonment for life each for the offence punishable under Section 376 read with section 511 IPC; and further sentenced Mukesh alias Bala to undergo RI for a period of three years and to pay a fine of Rs.3000/-, and in default of payment of fine to undergo RI for a period of one year for the offence punishable under Section 201 I.P.C. and further sentenced Ravinder Kumar, accused, to undergo RI for a period of two years, and to pay a fine of Rs.2000/-, and in default of payment of fine to undergo RI for a period of one year, for the offence punishable under section 201 IPC. All the substantive sentences were ordered to run concurrently. 2. Jyoti aged about 6 years, grand-daughter of Balraj son of Chiranji Lal, was found missing from village Hazariwas, on 29.4.2000, at about 2/2.30 p.m. The missing report was lodged by Balraj on 30.4.2000, as Shiv Ram, father of Jyoti, was in service in Border Security Force, at the relevant time. Jyoti was wearing grey colour T-shirt with Nikkar ( short pant). Search was made but she could not be located. 3. On 3.5.2000, Raja Ram son of Mahavir Singh and Manish son of Mahavir Singh, residents of village Hazariwas had gone towards the graveyard of Baba Sayad, located on the Eastern side of the village, to answer the call of nature. They noticed emission of foul smell there. They came and told this fact to Balraj, aforesaid. Balraj and several co-villagers, reached the graveyard,aforesaid, and noticed loose earth near the same. They removed the loose earth and found the dead body of Jyoti lying buried there. Her T-shirt and short were also lying near the dead body. The hair of the head and skin of the body were peeled off. No Criminal Appeal No.384-DB of 2002 3 apparent injury was visible. T-shirt and short were having blood stains. Balraj did not suspect anyone behind this incident, nor he could tell how Jyoti died. When he was going to the Police Station, to report the matter, Raja Ram, Head Constable, met him on the way and he made his aforesaid statement Ex.PB before him, on which he appended his endorsement at Ex.PB/1. He sent the statement to the Police Station on the basis whereof report Ex.P.M. was recorded in the Roznamcha. Raja Ram then went to the grave-yard of Sayad Baba. Inquest report Ex.PJ of the dead body of Jyoti was prepared. T-shirt and short (nikkar) lying near the dead body were taken into possession vide memo Ex.PC. The post mortem of dead body was got conducted by Raja Ram, Head Constable. The doctor opined the cause of death as asphyxia which was due to strangulation which was ante-mortem in nature, and was sufficient to cause death, in the ordinary course of nature. A wireless message regarding the murder of Jyoti daughter of Shiv Ram was received by Magan Singh, Sub Inspector. On receipt of this information,he went to Civil Hospitl, Rewari, where Raj Ram,H.C. met him. H.C.Raja Ram handed over to him, the post mortem report, inquest report, and copy of rapat No.9 dated 3.5.2000 Ex.PM on which he made endorsement Ex.PM/1 and the same was sent to the Police Station for registration of FIR, on the basis whereof FIR PM/2, was recorded. From Civil Hospital, Rewari, Magan Singh, S.I. Went to the spot, in village Hazariwas. Balraj etc. also accompanied him. He inspected the spot. 2. On 5.5.2000, HC Gyarsi Lal. Rajinder Singh, Constable, and Ram Niwas, Constable, met him at Mohindergarh Chowk. Dhanpat Singh, resident of village Hazariwas before whom the accused made extra judicial confession, produced them before Magan Singh, Sub Inspector on 5.5.2000. They were arrested. On Criminal Appeal No.384-DB of 2002 4 interrogation accused, Ravinder, made a disclosure statement, regarding his involvement, in the crime, which was recorded as Ex.PD. It was signed by him. Similarly, on interrogation, Mukesh, accused, also made a disclosure statement, Ex.PE regarding his involvement in the crime, which was signed him. Thereafter, Ravinder and Mukesh, accused, showed the place of crime. Memo of demarcation, Ex.PF, was prepared at the instance of Mukesh, accused. Memo of demarcation Ex.PG was prepared at the instance of Ravinder, accused. Rough site plans Ex.PN, Ex.PN/1, Ex.PN/2 and Ex.PN/3 were also prepared. Both the accused were got medicolegally examined. Underwears of the accused were also taken into possession vide memo Ex.PO. The statements of the witnesses during the course of investigation, were recorded at different stages. After the completion of investigation, the accused were challenged. 3. On their appearance, in the Court of 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 376/511,302/34 and 201 of the Indian Penal Code, was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Dhanpat,PW1, before whom the accused allegedly made joint extra judicial confession, confessing their involvement in the crime, Constable Rishi Pal, PW2, Balraj complainant, PW3, who lodged the missing report of Jyoti on 30.4.2000 as also the First Information Report dated 3.5.2000,, Hem Lata, PW4 and Hira Lal PW10, who allegedly saw the accused sitting on the road side at about 3.00 p.m. On 29.4.2000, in the area of village Hazariwas, when Jyoti ( now Criminal Appeal No.384-DB of 2002 5 deceased ) daughter of Shiv Ram, also met them, on the way and she was going towards the side where the accused were sitting, Dr.Ram Avtar Gupta, PW5, Constable Goverdhan Rawal, PW6, HC Raja Ram PW7, HC Roshan Lal, PW8, HC Karan Singh PW9, Samay Singh PW11, who saw both the accused, on an unmetaled passage at about 8/9 pm on 29.4.2000, outside the village; Dr. M.K.Narang, P.W.12, SI Magan Singh, Investigating Officer PW13 and Gurdial Singh, Patwari Halqa, village Lukhi, PW14. 5. Thereafter the Public Prosecutor for the State tendered into evidence Ex.PA report of the FSL and Ex.PB report of the Serologist and closed the same. 6. The statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded false implication. In their defence evidence, they examined Dilbag Singh, Fine Clerk,Civil Courts, Rewari as DW1. Thereafter they closed the defence evidence. 7. After hearing the Public Prosecutor for the State, Counsel for the accused, and on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, against the judgment of conviction and the order of sentence, referred to above, the instant appeal was filed by the accused/appellants. 9. We have heard Counsel for the parties and have gone through the evidence and record of the case, carefully. 10. Learned Counsel for the appellants contended that the trial Court grossly erred, in relying upon the alleged circumstance of last seen,which was not proved. He further contended that no extra judicial confession was made by the accused to Dhanpat. He also Criminal Appeal No.384-DB of 2002 6 contended that the evidence of Dhanpat (PW1) was untrust-worthy and,therefore, no reliance could be placed thereon. He further contended that the trial court was completely wrong in convicting the appellants/accused, and awarding them sentence. 11. The counsel for the respondent, however, supported the judgment of conviction and the order of sentence rendered by the trial court. 12. 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 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, Criminal Appeal No.384-DB of 2002 7 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.” 13. 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 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 Criminal Appeal No.384-DB of 2002 8 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 referred hereinbefore, now let us see, as to whether, the prosecution, has been able to prove its case, against the accused, beyond a reasonable doubt. Criminal Appeal No.384-DB of 2002 9 14. The first circumstance, on which, reliance was placed by the prosecution, was that both Mukesh alias Bala and Ravinder Singh accused were last seen with Jyoti, prosecutrix, on 29.4.2000, at 3 p.m. on the road-side in the area of village Hazariwas and thereafter she had gone missing and, ultimately, her dead body was recovered on 3.5.2000. It may be stated here, that Balraj, PW3, when got recorded the missing report on 30.4.2000, he did not suspect anybody either regarding her kidnapping or for the commission of offences against her person. Even in his statement, Ex.PB, on the basis whereof the FIR was recorded on 3.5.2000, he did not raise any suspicion, against the accused, for making an attempt to commit rape with Jyoti or for committing her murder. Nodoubt, Hem Lata, PW4, ( niece of Shiv Ram father of Jyoti) stated that on 29.4.2000 at about 3 p.m. when she was returning to the house, after answering the call of nature, from the side of plots, accused Mukesh alias Bala and Ravinder were noticed by her, sitting at a place, under the influence of liquor. She further stated that at a distance of 100 yards from the place, where the accused were sitting, Jyoti ( now deceased) also met her, who was going towards the plots,to answer the call of nature. To the same effect, is the statement of PW 10, Hira Lal, collateral of Balraj, grand father of Jyoti, deceased, Both these witnesses, as stated above, are related to Balraj, the first informant, as also Shiv Ram, father of Jyoti. When Jyoti was found missing, on 29.4.2000, they must have come to know about the said incident. Had they seen the accused sitting, at the road side, in the area of Hazariwas on 29.4.2000 at 3.00 p.m. as also Jyoti going towards that way, for answering the call of nature, they would have certainly told Balraj, when he lodged the missing report of Jyoti on 30.4.2000. Since they did not see either the Criminal Appeal No.384-DB of 2002 10 accused sitting on the road side, nor Jyoti going towards that way on 29.4.2000, they did not disclose this circumstance to Balraj, when he lodged the missing report of Jyoti on 30.4.2000. It was, on account of this reason, that this fact was not mentioned in the said report. Even this fact was not mentioned in the report Ex.PB dated 3.5.2000, on the basis whereof, FIR was registered. Nodoubt Hem Lata, PW4, during the course of her cross-examination, stated that when Jyoti did not return till evening, she had told her mother that she had seen the accused persons, as also Jyoti on that day while returning from plots. This statement of her, appears to be false, as mother of Jyoti was not examined, as a witness, and Balraj, PW3, during the course of his cross-examination stated that from 29.4.2000 to 2.5.2000 Dhanpat, Samay Singh, Hira Lal, Raja Ram and Hem Lata had no personal interaction with him, and they might have met him in routine. He did not 'state' even a single word that Hira Lal and Hem Lala had toldhim that on 29.4.2000 they had seen the accused at about 3.00 p.m. sitting on the road side, and Jyoti was going towards that place to answer the call of nature. In these circumstances, their statements are completely unreliable, with regard to the aforesaid circumstance. It appears that they being related to Balraj, first informant, as also Shiv Ram, father of deceased, Jyoti, made such statements,to create a circumstance of last seen. Even if ,their evidence is assumed to be correct, that does not establish that the accused and Jyoti were last seen together at 3.00 p.m. On 29.4.2000. From their evidence it is not established that Jyoti was sitting with the accused on 29.4.2000 at 3.00 p.m. on the road side, in the area of Hazariwas. It is also not established from their evidence, that she being a small girl of six years, was playing with them at that time. Since it was a road , anybody could Criminal Appeal No.384-DB of 2002 11 pass on the same and go to the fields for answering the call of nature. There is nothing, on the record,that she was being taken by the accused, to some place. There is also nothing, in their evidence, that she was going along with the accused, towards the fields. If the accused were allegedly sitting per chance, on the road side, on 29.4.2000 at 3,00 p.m. and Jyoti was going to the fields for answering the call of nature, at about the same time, that did not mean that the accused were involved in the alleged commission of crime. Even otherwise, there was a wide time gap between 29.4.2000 when the accused were allegedly seen on the road side and Jyoti was seen going towards the fields and when her dead body on 3.5.2000 was recovered from underneath the loose earth. The dead body was not got recovered by the accused, as they were arrested on 5.5.2000.There must be some immediate nexus and live link, between the last seen circumstance, and the commission of crime. In Ramreaddy Rajesh Khanna Reddy and another V. State of A.P. (2006) 10 Supreme Court Cases 172, the principle of law, laid down, was that the last seen theory comes into play where the time gap between the point of time, when the accused and the deceased were last seen alive, and the deceased was found dead, is so small, that possibility of any person other than the accused, being the author of the crime, becomes impossible and, even if, such a circumstance is proved, the court should seek some corroboration. As stated above, the time gap between 29.4.2000 and 3.5.2000, being so wide,it could not, by any stretch of imagination,be said that the accused allegedly committed the crime. The prosecution miserably failed to satisfactorily prove the circumstance of last seen. Such a circumstance, in our opinion, was created by the Investigating Agency just with a view to connect the accused with the Criminal Appeal No.384-DB of 2002 12 alleged commission of crime. The trial Court was wrong in placing reliance,on such an unproved circumstance. 15. The next circumstance, on which reliance was placed by the prosecution was regarding the alleged conduct of the accused, on 29.4.2000, at about 8/9 p.m. Samay Singh, PW11, is the brother- in-law of Balraj, first informant, as admitted by him, in his cross- examination. It was stated by him, that though he was a resident of village Palhawas, on 29.4.2000, he had come to village Hazariwas and that when he was returning from village Hazariwas at about 8/9 p.m., he saw accused Muksh and Ravinder coming via katcha path. He asked them about their well-being, and, as to from where they had come, but they did not respond. He further stated that on 3.5.2000 he had gone to the village, when the police was there, and he told the police that he had seen the accused outside the village on 29.4.2000 in the evening. The evidence of this witness besides being completely unreliable, he being highly interested in Balraj, being his brother-in-law, is also of no consequence. Had he seen both the accused at about 8/9 p.m. On 29.4.2000, when Jyoti went missing, he being, the brother-in-law of Balraj, must have told him about this factum. On the other hand, Balraj PW3, stated that he had no interaction with Samay Singh from 29.4.2000 to 3.5.2000. Even if, the statement of this witness is taken, on its face value, it does not prove that the conduct of the accused, was such as indicated the alleged commission of crime by them. As stated above, if the accused were seen on the road of village Hazariwas at about 8/9 p.m., that did not make their conduct suspicious or blameworthy, in any manner. It was for the accused to decide, as to whether, they wanted to respond to the query put by Samay Singh to them. The evidence of Samay Singh,PW11, therefore, does not prove any link, Criminal Appeal No.384-DB of 2002 13 in the circumstantial evidence. 16. The next circumstance, on which, reliance was placed by the prosecution, was that both the accused made joint extra judicial confession before Dhanpat, PW1, on 5.5.2000, wherein, they admitted their participation in the commission of rape and murder of Jyoti on 29.4.2000. Before touching the joint extra judicial confession allegedly made by the accused, before Dhanpat, PW1, the principle of law relating, to the same, is required to be enumerated. In Kavita V.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 an 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 there of depends upon the veracity of the witness, to whom it is made. In Jaspal Singh alias Pali V. State of Punjab 1977(2) RCR 70 (SC), it was observed, 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 Jagtar Singh and Jagraj Singh V. 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 V. 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 reply upon the same, to convict the accused,without corroboration. In Haramba Brahama V. 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 Criminal Appeal No.384-DB of 2002 14 extra judicial confession, which did not make out any sense, without exact reproduction of words, spoken by the witness. It was also held, that if any 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 reliance, can be placed thereon, for convicting the accused. In Baldev Raj V.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 the same was found