Case: Gagan Kanojia &amp; Another Vs. State of Punjab

- AIR 1960 SC 490 para 13; and George and Others v. State of Kerala and Another (1998) 4 SCC 605 para 36]. He was not examined by the prosecution. He might not have been examined for good reasons. At one point of time, he might have been sure about the involvement of his son, but at a later stage, he would have thought not to depose against him. 25. In a case of this nature, it was also not expected that the family members of Appellant No.1 would depose against him, as regards recovery of clothes which were recovered from his own house. The prosecution furthermore has brought on record the recovery of trouser and shirt of the accused. The colour of the said garments is not in dispute. The fact that the same were not belonging to him has also not been canvassed before us. Place of kidnapping has also not been disputed before us. Apart from PW-4, PW-11 is also a witness to the said fact Recoveries of school bags of the deceased children and their dead bodies have also been proved, which have neither been denied nor disputed before us. 26. We may notice now that the recovery had also been made of empty bottles and glasses. The said recovery has been proved by Sub Inspector Baldev Singh, PW-17. PW-10, Rakesh Kumar, stated in his evidence that Deep Public School from whose Ahata the empty bottle and glasses had been recovered was at a distance of 100 yards from the place wherefrom the dead bodies of the children were recovered. PW-20, Inspector Nirmal Singh, recovered empty bottle of liquor containing a few drops thereof as also two glasses. PW-16, Sub Inspector Hardeep Singh, found the traces of finger prints on those articles. He developed the finger prints on the glasses, which were comparable. They were sent to the Finger Print Bureau, Phillaur and the report, which was marked as Ex.PHHH, revealed that the thumb impression lifted from the glasses by PW-16 and thumb impression obtained from the appellants herein tallied with each other. 27. A letter was received by PW-3, Kamal Kishore, on 09.06.2000 wherein a sum of Rs.10 lakhs was demanded by way of ransom. It also bore a postal stamp. PW-3 was asked to tie a cloth of red colour on the roof of his house, which would be an indication to show that he was ready to pay the amount. The said letter was marked as Ex.PT. Thereafter specimen signature of the handwriting of both the accused were obtained under the order of Shri H.S. Grewal, Judicial Magistrate, First Class, who examined himself as PW-12; and the same was sent to an handwriting expert Shri Balwinder Singh Bhandal, who examined himself as PW-21. He submitted a report which was marked as Ex. PJJ, stating that the said letter was in the handwriting of Appellant No.2. 28. Another important circumstance which weighed with the learned Trial Judge as also the High Court was the recovery of a camera from the bed-box of Appellant No. 1 as also remaining part of the dirty white cloth with which the arms of both the children were tied had been kept concealed therein. He furthermore disclosed that the deck with two speakers were also kept concealed in the same room on the Angeethi and the said house was locked by him and he had kept concealed the keys of the said house near the outer gate underneath the same bricks. His disclosure statement was recorded and thereafter recoveries were made, which was proved by the investigating officer, Inspector Nirmal Singh, PW-20. His statement were corroborated by ASI Mohinder Singh. A cello tape was also recovered which was used by the accused for pasting on the mouth and nose of both the victims and for tying the plastic envelopes which were put on the faces of both the children. 29. Recoveries of the said articles were made pursuant to the information given by Appellant No. 1. The information given by Appellant No.1 led to discovery of some facts. Discovery of some facts on the information furnished by Appellant No.1 is a relevant fact within the meaning of Section 27 of the Indian Penal Code. It is, therefore, admissible in evidence and the same could have been taken into consideration as a corroborative piece of evidence to establish general trend of corroboration to the extra-judicial confession made by the appellants. 30. It was urged that the investigation was tainted. We do not find any reason to hold so. Section 302 of the Indian Penal Code might have been mentioned in some of the documents by the investigating officer, although no case thereunder was made out till the recovery of the dead bodies. But we do not find that the same was made designedly. One of the cautions which is required to be applied is to see that actual culprit does not end up getting acquitted. Reliance, in this behalf, has been placed by Mr. Mahabir Singh on Kishore Chand v. State of Himachal Pradesh [(1991) 1 SCC 286] . In that case none of the circumstantial evidence could be proved. Therein indulgence of the investigating officer in free fabrication of the record was established which was deplored by this Court.31. Keeping in view the circumstantial evidences, which have been brought on records, we are satisfied that all links in the chain are complete and the evidences led by the prosecution point out only to one conclusion, that is, the guilt of the appellants herein. They have rightly been convicted of the offences charged against them by the learned Trial Judge.32. An appeal had also been preferred by the complainant for enhancing the sentence. Mr. D.K. Garg, the learned counsel appearing on behalf of the complainant, would appeal to us for enhancement of the sentence. We, do not think that the High Court has committed any error in opining that the case is not one of the rarest of rare cases.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. The prosecution case is based on circumstantial evidence. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well-settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between may be true and must be true. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively.It was urged that the investigation was tainted. We do not find any reason to hold so. Section 302 of the Indian Penal Code might have been mentioned in some of the documents by the investigating officer, although no case thereunder was made out till the recovery of the dead bodies. But we do not find that the same was made designedly. One of the cautions which is required to be applied is to see that actual culprit does not end up getting acquitted. Reliance, in this behalf, has been placed by Mr. Mahabir Singh on Kishore Chand v. State of Himachal Pradesh [(1991) 1 SCC 286] . In that case none of the circumstantial evidence could be proved. Therein indulgence of the investigating officer in free fabrication of the record was established which was deplored by this Court.31. Keeping in view the circumstantial evidences, which have been brought on records, we are satisfied that all links in the chain are complete and the evidences led by the prosecution point out only to one conclusion, that is, the guilt of the appellants herein. They have rightly been convicted of the offences charged against them by the learned Trial Judge.32. An appeal had also been preferred by the complainant for enhancing the sentence. Mr. D.K. Garg, the learned counsel appearing on behalf of the complainant, would appeal to us for enhancement of the sentence. We, do not think that the High Court has committed any error in opining that the case is not one of the rarest of rare cases.