Case: Bodh Raj @ Bodha &amp; Others Vs. State of Jammu &amp; Kashmir

(2) Ravinder Kumar (accused No. 1), Ashok Kumar (accused No. 2) and Rajesh Kumar (accused No. 6) were convicted by the trial Court while Bodhraj (accused No. 3), Bhupinder (accused No. 4), Subash Kumar (accused No. 5) and Rakesh Kumar (accused No. 7) were acquitted by the trial Court, but the High Court set aside their acquittal and convicted them. Rohit Kumar (accused No. 8) and Kewal Krishan (accused No. 9) were acquitted by the trial Court and their acquittal has been upheld by the High Court. Another accused i.e. Kishore Kumar was acquitted by the trial Court. He having died during the pendency of the appeal before the High Court, the appeal against him was held to have abated.Kumar has not preferred any appeal against the conviction as upheld by the High Court.(3) Accused No. 1 and accused No. 2 having been convicted under S. 302 read with S.of the Indian Penal Code, 1860 (in short the IPC) were sentenced to suffer imprisonment for life and pay a fine of Rs. 20,000.00 each. It was stipulated that for default in paying the fine, each had to suffer another year of imprisonment. Similar was the case with accused No. 6. So far as the accused Nos. 3, 4, 5 and 7 are concerned, the High Court convicted and sentenced them at par with the other three accused.(4) Factual scenario as highlighted by the prosecution is as follows :Swaran Singh alias Pappi (hereinafter referred to as the deceased) was running a finance company. Accused No. 2 (Ashok Kumar) and accused No. 1 (Ravinder Kumar) had taken huge amounts as loan from the deceased. They suggested to the deceased to enter into a financial arrangement. On the fateful day i.e. 3/08/1994, deceased went to his business premises. After about 10 minutes of his arrivalKumar also reached his office. As the deceased had brought some money from his house which was to be deposited in a bank, Darshan Singh (P.W. 15) an employee was asked to make the deposit. Since no vehicle was available, Ravinder Kumar gave the key of his car to Darshan Singh. The registration number of the car is CHO1 5408. Darshan Singh left the office around 11.30 a.m. and returned around 1.30 p.m. On his return, Darshan found the deceased in the company ofKumar and Ashok Kumar. He returned the key of the car to Ravinder Kumar. After about 10/15 minutes, deceased andKumar left the office. At the time of his departure, deceased told Darshan to take the food which was to come from his house, as they were going out to have food.Kumar and the deceased went to Hotel Asia for taking their food. Later onKumar joined them. All the three after taking food went to the business premises of Gian Singh (P.W. 1) who was a property dealer and broker. He was informed that they were interested in purchasing some land for setting up a flour mill. Ravinder and Ashok Kumar persuaded the deceased to accompany them for the selection of the site. Along with Gian Singh (P.W. 1), another property dealer was also picked up. This was done as P.W. 1 wanted to go to the site in question along with Pratap Singh (P.W. 2) who was his business partner. All of them went to village Dhiansar where the land was situated. They went by car No.der Kumar appeared to be in extreme haste, he told that site has been approved and P.Ws. 1 and 2 were told that they would settle the matter at their business premises. When they were returning, the deceased was attacked by some persons (later on identified as accused 3 to 10). The accused 1 and 2 remained silent spectators and even did not pay any heed to the pitiful plea of the deceased to bring the car so that he can escape the attacks. On the contrary, they left the scene of occurrence leaving behind the deceased and P.Ws. 1 and 2. They did not report the matter to the police and even though they claimed to be friends of the deceased, did not even inform family members of the deceased. They owed huge amounts and issued cheques for which they had made no provision. Ashok Kumar made use of the cheque book of his wife and issued a cheque in respect of her bank account, though, the same was not operated for quite some time.Kumars presence was established as later on, a licensed revolver belonging toKumar was recovered at the instance of Ravinder Kumar The licence of the revolver was seized from the house of Ravinder Kumar and father of the said accused produced the same before the police in the presence of witnesses. Pistol of the deceased was also recovered at his instance. The license in respect of the pistol was seized on personal search of the deceased at the spot of occurrence. One Hari Kumar (P.W. 18) stated thatKumar and Ashok Kumar made a statement before him that they had got the deceased killed because he was demanding money from them. From the fact that the land was to be selected was only known toKumar and Ashok Kumar, an inference was drawn that it was these two accused who had hired the assailants and planted them well in advance for the ultimate elimination of the deceased. The fact thatKumar left the office of the deceased earlier and joined them at the Hotel was considered significant, as the intervening period was utilized by him to inform the assailants as to where they would be taking the deceased for the assaults being carried out.Kumar and Subash Kumar had also suffered bullet injury which was on account of the firing done by the deceased while he was trying to save his life.(5) Recoveries of various weapons used by assailants were made pursuant to the disclosures made by theBhupinder, Subash Kumar, Rajesh Kumar and Rakesh Kumar. Recoveries were witnessed by several witnesses. Bodhraj was identified by Jhuggar Singh (P.W. 6) and Santokh Singh (P.W. 7). Bhupinder Singh was identified by Hari Kumar (P.W. 18) and Gurmit Singh. Similar was the case withKumar. Rajesh Kumar was identified by Ranjit Sharma (P.W. 23) and Hari Kumar (P.W. 18).Kumar was identified by Ranjit Sharma (P.W. 23) and Gurmit Singh, who was not examined in Court.Bhupinder, Rakesh Kumar, Rohit and Kewal Krishan were identified by Nainu Singh (P.W. 9) while Subhash Kumar and Rajesh Kumar were identified by Santokh Singh (P.W. 7) and Surjit Singh (P.W. 8). The identification was done on two dates i.e.4. Differentclaimed to have seen the occurrence either in full or partially. P.Ws. 1, 2, 7, 8 and 9 were really the crucial witnesses. Santokh Singh (P.W. 7) was disbelieved by trial Court as well as by the High Court.(6) In order to establish the plea that conspiracy was hatched, reliance was placed on the plea of Kapur Chand who was not examined in Court. Several other circumstances were highlighted by the prosecution, to establish the plea of conspiracy. It was submitted that nobody knew except P.W. 2 where the land was. If he was the person who had hired the assailants, they (meaning P.W. 1 and deceased) would not have gone empty handed. But, knowing particularly well that the deceased was always armed, accused Ravinder purchased a car which was used as a get away car but never transferred it to his name. It was, however, conceded by the learned Advocate General appearing before the trial Court that there was no direct evidence of conspiracy. Police seems to have proceeded to reach the spot on getting some reliable information.

Reasoning: Since their presence is doubtful, identification, if any, done by them becomes ipso facto doubtful. The recoveries purported to have done pursuant to the disclosure made by the accused persons is highly improbable and requisite safeguards have not been adopted while making alleged recoveries. The case against four of the accused persons who were acquitted by the trial Court rests on circumstantial evidence. The approach to be adopted by the Court while dealing with circumstantial evidence was kept in view by the trial Court. Unfortunately, the High Court did not do so. It was further submitted that there was no complete chain of circumstances established which ruled out even any remote possibility of anybody else than the accused persons being the authors of the crime. The examination ofs P.Ws. 1 and 2 was belated and, therefore, should not have been accepted. The evidence of P.Ws.accused persons is so improbable that no credence should be put on it. The High Court should not have disturbed the findings of innocence of four accused persons without any plausibleprincipal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts.To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred orstatement which is admissible under S. 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in S. 27 of the Evidence Act is the Doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional orin nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor, is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered." But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.(19) Coming to evidence brought on record to substantiate the accusations, it is at least clear that accused Nos. 1 and 2 left in the company of the deceased. Some evidence has also been brought to establish the motive i.e. the indebtedness of the accused to the deceased. In addition to this is the evidence ofand 2. So far as accused No. 2 is concerned, he almost stands on the same footing as accused No. 1. Additionally, Hari Kumarhas stated that accused No. 2 came to his shop and took sweets and left in car No. 566 JK02B belonging to accused No. 1. He has also stated about the return of accused No. 2 to the shop and a demand for aIn view of the circumstances noticed and highlighted by the trial Court and the High Court and in our considered opinion rightly the appeals filed by accused Ravinder Kumar and Ashok Kumar are devoid of merit and deserve dismissal, which we direct.(29) Coming to the appeals filed by four appellants who were acquitted by the trial Court but convicted by the High Court, it has been argued with emphasis that even if it is accepted the two views are possible on the evidence, the one in favour of the accused was to be accepted and their acquittals should not have been rightly interfered with. It is to be noticed that the trial Court placed reliance on the evidence of Hari Kumarfor the purpose of convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it was not held to be reliable. There was no cogent reason indicated as to why the same was termed to be unreliable. Additionally, recoveries were made pursuant to the disclosure made by them. Though, arguments were advanced that due procedure was not followed, in view of the evidence of the witnesses examined by the prosecution in that regard, we find nothing illegal ruling out its acceptance. There are certain additional features also. A pant was recovered from the house of Subash Kumar which had holes indicating passage of bullet. However, a chemistwas examined to show when he had gone to purchase the medicine to be applied to the injury. It was submitted that so far as Santokh Singhis concerned, his evidence was held to be not reliable. Therefore, the identification of accused No. 5, Subash Kumar by Santokh Singh was not of any consequence. Even if it is accepted, the evidence relating to recovery established by the evidence ofcannot be lost sight of.(30) The evidence of Nainuwas also described to be unreliable and it was said that he stood at par with Santokh Singh. Similar was the criticism in respect of Surjit Singh. Their evidence has been analysed in great detail by the High Court and has been held to be reliable. It is of significance that practically there was noon the recovery aspect. We do not find any reason to differ with the High Court in that regard. There can be no dispute with the proposition as urged by learned counsel for the appellants that two views are possible, the one in favour of the accused has to be preferred. But where the relevant materials have not been considered to arrive at a view by the trial Court, certainly High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial Court. In the case at hand, the course adopted by the High Court is proper.(31) Judged in the aforesaid background, conviction by the High Court of those four who were acquitted by the High Court does not warrant any interference.(32) The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. 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 accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that deceased,were seen together by witnesses, i.e.15 and 18, in addition to the evidence ofand 2.(33) It was submitted that there was unexplained delay in sending the FIR. This point was urged before the trial Court and also the High Court. It was noticed by the High Court that Showkat Khanwas an investigating officer on 3/08/1994 for a day only. He had taken steps from 5.30 evening onwards to 9.00 p.m. on the spot. Thereafter, Gian Chand Sharmawas asked to investigate into the matter. It was also noticed that the road between Bari Brahmana and Samba where the Court was located was closed due to traffic on account of heavy rains. Though, the road was open from Jammu to Bari Brahmana but it was closed from Bari Brahmana to Samba. The days delay for the aforesaid purpose (the FIR has reached the Magistrate oncannot be said to be unusual when proper explanation has been offered for the delay. The plea of delayed dispatch has been rightly held to be without any substance.(34) Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion.(35) As was observed by this Court in Ranbir and others v. State of Punjab, AIR 1973 SC 1409 the investigating officer has to be specifically asked as to the reasons for the delayed examination where the accused raised a plea that there was unusual delay in the examination of the witnesses. In the instant case however the situation does not arise.