Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 381 of 2001 Old Criminal Appeal No. 2834 of 1999 Dated of Decision: 13 .07.2010 Ravindra Kumar …Appellant Versus State of U. P. (Now Uttarakhand) …Respondent CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. S.K. Agarwal, learned Sr. Advocate assisted by Mr. Swapnil Bisht, learned counsel for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Nirmal Yadav, J. Appellant-Ravindra Kumar stood trial for the offence punishable under Sections 364, 365, 302 and 201 of the Indian Penal Code, 1860 (for short I.P.C.). He has been convicted by the Additional Sessions Judge, Dehradun for the offence punishable under Sections 364-A, 302 and 201 of the I.P.C. vide judgment and order dated 23rd September 1999 in Sessions Trial No. 100 of 1994 and has been sentenced to life imprisonment under Section 302 of the I.P.C. and a fine of Rs. One lac and has been sentenced to life imprisonment under Section 364-A and a fine of Rs. 50,000/- and has been sentenced to undergo rigorous imprisonment for life under Section 201 of the I.P.C. and a fine of Rs. 50,000/-. In default of payment of fine, he has further been ordered to undergo imprisonment for five years for each offence separately. All the sentences have been ordered to run concurrently. In case of realization of fine, Rs. One lac have been ordered to be paid to Smt. Raj Kumari, mother of deceased and Rs. 10,000/- to the Investigating Officer and Rs. 10,000/- to the A.D.G.C. (Criminal) as prize money out of the amount so realized. 2 It is an unfortunate case where accused Ravindra Kumar allegedly abducted his own friend Suresh alias Vikki out of greed of money. He demanded a sum of Rs. 1,00,000/- (Rs. One lac) as ransom from the mother of his friend Suresh alias Vikki (since deceased) but even before the said money was to be handed over to him, he killed his friend by strangulating him and burried him in a deep pit. The facts, as culled out from the record, are that on 17.12.1992 between 5-6 p.m. accused Ravindra Kumar along with his two other friends came to House No. 123 Dhama Wala, Dehradun where Suresh alias Vikki (deceased) was living. Suresh had hired one room of the said house as he was studying in Guru Ram Rai Degree College in B.Sc. Ist Year. He was also undergoing training for Merchant Navy in the Hindustan Marine Electronics Institute, Brahmanwala. Accused Ravindra Kumar had asked Suresh to accompany him as he wanted to discuss about a girl named Poonam. Suresh accompanied Ravindra Kumar, however he was not seen thereafter in his room. On 2nd January 1993 Raj Kumari (PW-2), mother of deceased, who was working as Village Development Officer at Uttarkashi, received a letter (Ex.-1) wherein she was asked to arrange for Rs. 1,00,000/- as ransom money for releasing her son. She was warned not to inform about the letter or the abduction of her son to the police, otherwise her son would not remain alive. It was further mentioned that she would be informed about the place and time of delivery of the amount through another letter. On receiving letter (Ex.-1) she went to Dehradun and found that her son was not available in the room hired by him. On an enquiry she came to know that her son was not living in the room for the last 15-16 days. Meanwhile her brother Shiv Kumar (PW-3) came to Dehradun and he disclosed that he had visited Suresh alias Vikki in his room on 17.12.1992 3 and at that time accused Ravindra Kumar along with two boys had come to his room. Ravindra Kumar accompanied those boys and Shiv Kumar (PW-3) went back to his house at Saharanpur. Smt. Raj Kumari (PW-2) continued searching for his son and tried to arrange for the money also. Meanwhile she received another letter (Ex.-2) vide which she was directed to bring Rs. 1,00,000/- (One lac) in a white colour bag and she should herself wear a white Sari and reach the culvert at Shimla Bypass at about 10:30 a.m. on 12.01.1993. One person would meet her there and would show Suresh’s wristwatch and she should hand over the bag containing money to the said person. She was emphatically warned if she informed anything to the police then her son would be no more in this World. It was also mentioned that on receiving the money her son would be handed over to her. When Raj Kumari (PW-2) could not arrange money she reported the matter to the police and submitted written complaint (Ex. Ka-2) to S.H.O. Kotwali, Dehradun. On the basis of which Chick F.I.R. (Ex. Ka-6) was recorded on 11.01.1993 at 5:30 p.m. The police party consisting of Station House Officer K.K. Gautam, S.O. Tej Veer Singh, S.I. D.V. Singh, S.I. Y.C. Sharma, S.I. Harendra Singh and other police officials would keep themselves hiding there in the plain clothes and a per their plan Smt. Raj Kumari (PW-2) would go at the relevant place and time carrying paper chips in a white bag. Accordingly Smt. Raj Kumari (PW-2) went to the place fixed by the abductors where one person met her and showed her a wristwatch belonging to Suresh alias Vikki. Smt. Raj Kumari identified the wristwatch and handed over the bag to the said person but when he turned back to leave, Smt. Raj Kumari enquired about his son. Meanwhile the police came out of hiding and apprehended the accused. On an enquiry, he disclosed his name as Ravindra Kumar. On searching his person a bag, which was 4 handed over by Smt. Raj Kumari, was recovered from him and the wristwatch belonging to Suresh alias Vikki was also recovered from his pocket. The accused was arrested at the spot and the articles recovered from him were made into sealed parcel and were taken into possession vide memo Ex. Ka-3. The investigation was initially handed over to S.O. Tej Veer Singh (PW-9). Thereafter it was handed over to S.I. S.P.S. Rathour on 24th January 1993 and it remained with him up to 18th March 1993 and thereafter the investigation was conducted by S.I. Ravi Dutt Tyagi (PW-8). On interrogation the accused disclosed that he could recover the dead body of Suresh. On the pointing out of the accused, the dead body was got recovered from PPCL plot on 12th January 1993 in the presence of Shiv Kumar (PW-3), Smt. Raj Kumari (PW-2), Gulshan Kumar (PW-1), S.H.O. K.K. Gautam, S.O. Tej Veer Singh (PW-9) and other police officials. The dead body was identified by Smt. Raj Kumari (PW-2), mother of deceased and Shiv Kumar (PW-3) maternal uncle of deceased and Gulshan Kumar (PW-1). The memo with regard to dead body is Ex. Ka-4. The dead body was sent for the postmortem. The postmortem was conducted on 13th January 1993 at 12:45 p.m. and the postmortem report is Ex. Ka-5. As per the postmortem report the death of Suresh was on account of strangulation. On completion of investigation, final report under Section 173 Cr.P.C. was put in the court, for trial. The accused- appellant was charge sheeted for commission of crime under Sections 364, 302 and 201 of the I.P.C. to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined Gulshan Kumar (PW-1) who was present at the time of the recovery of the dead body. Smt. Raj Kumari (PW-2), mother of 5 deceased. Shiv Kumar (PW-3), maternal uncle of deceased. Nawabuddin (PW-4) was the witness with regard to the recovery of dead body, however, he was declared hostile. S.I. Harendra Singh (PW-5) was the witness with regard to the arrest of the accused and recovery of wristwatch and a white bag alleged to be containing money/paper chips. Dr. A.P. Mamgain (PW-6), the Medical Officer, Dehradun Hospital conducted autopsy on the dead body of Suresh alias Vikki. Head Constable Jagdish Singh (PW-8) had recorded the G.D. entry (Ex. Ka-7) with regard to registration of the F.I.R. He also proved the G.D. entry with regard to the departure and arrival of the police party going for the recovery and arrest of the accused on 12th January 1993. S.S.I. Ravi Dutt Tyagi (PW-8) submitted the charge sheet in the court. S.O. Tej Veer Singh (PW-9) is the Investigating Officer. On conclusion of prosecution’s evidence, statement of the appellant was recorded under Section 313 Cr.P.C. He denied all the allegations of prosecution and claimed innocence and false implication. In defence the accused produced as DW-1 Mr. Ramesh Yadav, Editor of Dainik Savera Newspaper, DW-2 Basanti Devi, the B.T.C. Member of Gram Panchayat, Block Badpur, who proved that the accused is the son of Surendra Bahadur. DW-3 Head Constable Jai Singh proved G.D. entry No. 25 of police station Dibiyapur at 19:05 hours with regard to return of S.I. Niranjan Singh to police station after helping Dehradun Police for the arrest of someone. The trial court after taking into consideration the entire evidence and documents available on record convicted and sentenced the accused appellant as referred to in paragraph-1 of the judgment. 6 We have heard Mr. S.K. Agarwal, learned Senior Advocate assisted by Mr. Swapnil Bisht, learned counsel for the appellant, Mr. S.S. Adhikari, learned A.G.A. for the State and perused the material available on record. Learned counsel for the appellant argued that the prosecution case is not supported by any direct/ocular evidence and is based on the circumstantial evidence. However, the chain of circumstances is not at all complete. It is argued that the first chain of circumstance is the arrest of the accused and recovery of wristwatch belonging to Suresh (deceased) and one white bag containing money/paper chips alleged to be handed over to the accused by Smt. Raj Kumari (PW-2). It is submitted that the story of arrest and the recovery of the abovementioned articles is highly doubtful. To prove the arrest of accused and the recovery of articles, the prosecution has produced Smt. Raj Kumari (PW-2), mother of deceased and her brother Shiv Kumar (PW-3), S.O. Tej Veer Singh (PW-9) and S.I. Harendra Singh (PW-5). The statements of all the witnesses are contradictory to each other. According to Smt. Raj Kumari (PW- 2), she had gone with the alleged white bag containing money/paper chips and no one was with her. She reached the culvert of Shimla Bypass at 10:30 a.m. when one boy came and enquired as to whether she was Smt. Raj Kumari and thereafter she was shown a wristwatch belonging to Suresh and thereafter she handed over the white bag to him. Whereas Shiv Kumar (PW-3) stated that police had accompanied them to Shimla Bypass thereafter accused came near them and showed a wristwatch belonging to Suresh and when they handed over the bag containing paper chips the police apprehended him. In the cross examination, he stated that the bag containing money was snatched by accused Ravindra Kumar from him. Whereas S.I. Harnedra Singh (PW-5) stated that at about 10:30 a.m. Smt. Raj Kumari (PW-2), mother of deceased along with a white bag 7 went near the culvert of Shimla Bypass meanwhile a person came near Smt. Raj Kumari and had some conversation with her and thereafter showed her one wristwatch. Thereafter the bag was handed over by Smt. Raj Kumari to that person when he started going back he was apprehended by the police party. In the cross examination he categorically stated that Smt. Raj Kumari, mother of the deceased was alone and no one accompanied her. This witness further stated in the cross examination that he had seen Shiv Kumar (PW-3) at the place where the police party had started going on foot for the recovery of the dead body. S.O. Tej Veer Singh (PW-9) also did not mention that Shiv Kumar (PW-3) was accompanying Smt. Raj Kumari when she had come at Shimla Bypass along with the white bag. Learned counsel for the appellant therefore, argued that the statement of Smt. Raj Kumari (PW-2) and Shiv Kumar (PW-3) are totally contradictory to each other and the statements of other witnesses. None of them stated that Shiv Kumar was accompanying Smt. Raj Kumari at Shimla Bypass. He argued that the evidence produced by the prosecution with regard to the alleged recovery of wristwatch, a white bag and the arrest of the accused is not proved beyond doubt. Next argument raised by learned counsel for the appellant is with regard to the discovery of the dead body of Suresh. He argued that alleged independent witness Nawabuddin (PW-4) has not supported the prosecution case. According to him, he had come to know that some digging was being done to search at a dead body, therefore, he went at the plot of PPCL where the police was present and many other persons had collected and one boy with hands cuff was present with the police whom he did not know earlier. He further stated that he was not present in the court also. He further stated that the boy did not disclose anything to the police in his presence; however, he admitted that a dead body was recovered from the 8 pit in his presence, which was smelling. Panchnama (Ex. Ka-1) was prepared in his presence. He admitted his signature on the inquest report (Ex. Ka-1). This witness was however, declared hostile. In the cross-examination, he stated that he did not make any statement before the police. However, this witness stated that when the dead body was being taken out, maternal uncle and mother of deceased were present at the spot. Learned counsel for the appellant argued that the testimony of Smt. Raj Kumari (PW-2) and Shiv Kumar (PW-3) are not at all trustworthy and reliable. The statements of both of them are contradictory to each other on material facts. Learned counsel for the appellant argued that Gulshan Kumar (PW-1) is a related and interested witness and he had been summoned by the police from his house whereas no independent person was joined from the locality, though as per the statement of Gulshan Kumar (PW-1) about 50 persons were present at the spot at that time. Learned counsel for the appellant argued that Smt. Raj Kumari stated that she was unconscious when the dead body was taken out and Gulshan Kumar (PW-1) was also present along with many other persons when she reached the place from where the dead body was being recovered. However, Gulshan Kumar (PW-1) stated that he along with Smt. Raj Kumari and Shiv Kumar had gone to village Brahmanwala where police met them. Learned counsel for the appellant referred to the statement of Shiv Kumar (PW-3) that he along with Gulshan Kumar and Village Pradhan Nawabuddin were present when accused had made a disclosure statement and thereafter they went to plot of PPCL where the dead body was burried. Learned counsel for the appellant pointed out that as per the statement of Shiv Kumar, the dead body was got recovered by accused on the next date of his arrest. In the cross examination, he stated 9 that police officials did not go for recovery of dead body on the same day but the police official went on the next day at 9-10 a.m. However, S.O. Tej Veer Singh (PW-9) the Investigating Officer stated that they had gone to the disclosed place for the recovery of the dead body on the same day i.e. on the date of the arrest of the accused, however, this witness could not state the names of the persons other than the police officials who were present and attested the memo with regard to the recovery of the dead body. According to him, 4-5 witnesses were present at that time. Learned counsel for the appellant argued that the arrest of the accused from Shimla Bypass as alleged by the prosecution is totally belied from a news report Ex. Kha-1. As per the news report of Dainik Savera published on 13th January 1993 the police had arrested accused Babloo alias Ravinder and father of his friend Pappu Yadav from their village situated in Dibiyapur police station. DW-1 Ramesh Yadav is the Editor of the said newspaper, who stated that this news was published by him on the basis of the information received from the crime report issued by the police. However, this witness in the cross examination admitted that he had not verified about the correctness of this report. He also could not produce any crime report received by him from the police department. The learned counsel for the appellant referred to the statement of DW-3 Head Constable Jai Singh of Police Station Dibiyapur, who had proved G.D. entry no. 25 (Ex. Kha-2) of the police station Dibiyapur recorded at 19:05 hours wherein it is mentioned that S.I. Niranjan Singh had helped the police officials of Kotwali Dehradun for the arrest of someone. The name of accused Ravindra Kumar or any other person is not mentioned in the G.D. entry. In the cross-examination this witness admitted this fact. Learned counsel for the appellant therefore, argued that the prosecution has totally failed to pin point the guilt of the 10 accused and the chain of evidence to prove the prosecution case is not complete in any manner. On the other hand, Mr. S.S. Adhikari, learned A.G.A. for the State submitted that accused Ravindra Kumar was a friend of Suresh (deceased) and it has been well proved from the statement of Shiv Kumar that on the asking of Ravindra Kumar, Suresh had accompanied him and thereafter he did not return to the room where he was living. Thereafter two letters Ex.-1 and Ex.-2 were sent by the accused to the mother of the deceased. As per the plan given in the second letter (Ex.-2), mother of deceased reached the place as directed by the author of the letter. It was the accused Ravindra Kumar only who had come to collect the bag which is supposed to contain the ransom money of Rs. One lac from the mother of deceased. A wristwatch belonging to Suresh (deceased) was found in possession of accused Ravindra Kumar. He was apprehended by the police immediately after handing over of the bag by Smt. Raj Kumari and the said bag was recovered from his possession. The learned A.G.A. further argued that the last circumstance which clinches the guilt against the accused is that on his pointing out dead body of Suresh was recovered after digging it from a deep pit. It was argued by the learned A.G.A. that no one except the accused could know the place where the dead body was burried. The place where the dead body got recovered by the accused was situated near his house. The learned A.G.A. therefore, argued that the entire chain of circumstances has been proved by the cogent and reliable evidence. Besides the above circumstance, the medical evidence also corroborates the prosecution case. Dr. A.P. Mamgain (PW- 6) stated that the dead body had been decomposed and no visible sign of injury could be seen. However, the right cornu of 11 hyde bone was found broken and right carotid artery was also found to be lacerated. As per opinion of the doctor the cause of death was strangulation due to asphyxia. Duration of death is stated to be between 14-30 days prior to conducting the postmortem. In the cross examination, this witness stated that during winter decomposition of a dead body starts from two weeks while it is earlier in during summer season. He further stated that the dead body was not completely decomposed. On careful consideration of the rival submissions made by learned counsel for the parties and the entire evidence available on record, we find that there is no direct or ocular testimony in the present case and the prosecution case is based on the circumstantial evidence. The prosecution has proved the following circumstances to bring home the guilt against accused Ravindra Kumar: - (i) The testimony of Smt. Raj Kumari (PW-2), who produced letters Ex.-1 and Ex.-2. Vide letter Ex.-1, she was informed that her son had been abducted and she should arrange ransom amount of Rs. One lac. The manner and the place would be further disclosed to her later on. She was warned not to inform the police about all the facts. Later on, letter Ex.-2 was received by Smt. Raj Kumari vide which she was directed to reach the culvert of Shimla Bypass at 10:30 a.m. on 12th January 1993 in a white Sari along with a white bag containing the ransom amount of Rs. One lac. She was again warned by the author of the letter not to inform the police. (ii) The Last Seen Evidence:- Shiv Kumar (PW-3) had last seen the deceased in the company of accused Ravindra Kumar and two of 12 his other friends who were outside the House No. 123 Dhama Wala, Dehradun where Suresh was living. Shiv Kumar (PW-3) had visited his nephew Suresh alias Vikki when accused Ravindra Kumar came and asked Ravindra Kumar to accompany him as he wanted to discuss with him about some girl by the name of Poonam. Suresh alias Vikki left with Ravindra Kumar and thereafter he did not return back to his room. (iii) The third circumstance proved by the prosecution is with regard to the recovery of wristwatch belonging to Suresh alias Vikki (deceased) and a white bag containing paper chips which was supposed to contain the ransom money of Rs. One lac demanded by the accused. Smt. Raj Kumari (PW-2) produced letter Ex.-2 before the police wherein she was directed to reach near the culvert of Shimla Bypass on 12th January 1993. After receipt of the said letter, she informed the police by submitting complaint (Ex. Ka-2). Accordingly, a plan was chalked out and Smt. Raj Kumari (PW-2) was to reach the place as directed by the author of the letter along with a white bag alleged to be containing the ransom money. The police officials including S.I. Harendra Singh (PW-5), S.O. Tej Veer Singh (PW-9), S.H.O. K.K. Gautam and other police officials remained in the hiding in plain clothes. In order to execute the plan Smt. Raj Kumari (PW-2) reached the culvert of Shimla Bypass at 10:30 a.m. in a white Sari carrying a white bag. On seeing her accused Ravindra Kumar immediately approached her and presented a wristwatch belonging to Suresh alias Vikki thereupon Smt. Raj Kumari handed over the white 13 bag which was supposed to contain the ransom money to accused Ravindra Kumar. Immediately thereafter the police party, in hiding at the spot, apprehended the accused. On conducting his search a wristwatch belonging to Suresh alias Vikki and a white bag, which was handed over by Smt. Raj Kumari (PW-2) was recovered from his possession. The accused was arrested and the memo with regard to the arrest and recovery of wristwatch and a white bag (Ex. Ka-3) was prepared, which bears the signature of Smt. Raj Kumari (PW-2) as well as signature of accused Ravindra Kumar, who also received the copy of Ex. Ka-3 at the spot. The arrest of accused as well as the recovery of wristwatch and white bag has been duly proved by Smt. Raj Kumari (PW-2), S.I. Harendra Singh and S.O. Tej Veer Singh (PW-9). All the three witnesses have been examined in this respect; however, their testimony could not be demolished. All the three witnesses have categorically stated that it was accused Ravindra Kumar only who had reached the appointed place and after showing the wristwatch to Smt. Raj Kumari, the white bag was handed over to him and both, a wristwatch as well as the white bag were recovered from his possession by the police. The fact that accused Ravindra Kumar had approached Smt. Raj Kumari to receive the bag containing the ransom amount, clearly proves that he was the person who had