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

3. By reason of the impugned judgment, the High Court while upholding the judgment and conviction opined that the case cannot be said to be a rarest of rare one meriting award of death penalty.4. The children went to take private tuition in the house of one Pooja. They were supposed to come back by 6.30 p.m. As they did not return, Kamal Kishore went to her house. He was informed that the children had left her house at 6.15 p.m. The children were continued to be searched. He, however, came to know that one scooterist wearing trouser of black colour and shirt of white colour had taken his children on his scooter. A First Information Report was lodged. During investigation, the school bags and dead bodies of the children were recovered. Appellant No. 1 herein is related to the complainant. They belong to the same community. They were neighbours. They, however, said to be belonging to different unions of their community being that of washermen.5. P.W-4 is a child witness. He is nephew of Appellant No.1. They live in the same house. He is said to have seen the children sitting on the scooter of Appellant No.1 herein. Appellant No. 1 was also seen riding the scooter along with the children by PW-15, who was a taxi driver. Both the appellants furthermore went to the house of PW-11, an advocate and the leader of their community and made an extra-judicial confession. Extra judicial confession was also purported to have been made by them before the father of Appellant No.1 herein, who also got his statement recorded before the Magistrate under Section 164 of the Code of Criminal Procedure. He, however, was not examined. Appellant No.1 was arrested on the basis of the said extra-judicial confession. He made disclosure statements leading to recoveries of clothes and tapes wherewith hands and legs of the deceased children were said to have been tied.6. The prosecution in proving the charges against the appellants herein, inter alia, relied upon a purported letter received by the said Kamal Kishore wherein ransom was demanded. It was found to be in the handwriting of Appellant

Reasoning:
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.