Full Judgment Text
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CASE NO.:
Appeal (crl.) 561-62 of 2005
PETITIONER:
Gagan Kanojia & Anr.
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 24/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
W I T H
CRIMINAL APPEAL NO.563 OF 2005
S.B. SINHA, J :
Appellants herein were prosecuted for commission of an offence
under Sections 364/34, 302/34 and 201/34 of the Indian Penal Code for
kidnapping and murdering two children, Abhishek and Heena, aged six and
eight years respectively, of one Kamal Kishore. They were sentenced to
death. A reference was made to the High Court under Section 366 of the
Code of Criminal Procedure.
Appeals were preferred by Appellants also before the High Court.
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.
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.
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.
The prosecution in proving the charges against the appellants herein,
inter alia, relied upon a purported letter received by the said Kamal Kishore
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wherein ransom was demanded. It was found to be in the handwriting of
Appellant No.2.
Mr. Mahabir Singh, the learned Senior Counsel appearing on behalf of
the appellants, in support of the appeals would submit :
1) Evidence of PW-4, Sahil, who was a child witness, could not have
been believed particularly when : (a) he was examined after
20 days; (b) he identified the accused at the instance of PW-11; and
(c) he purported to have made the statement on the basis of a letter Ex.
D-I.
2) Extra-judicial confession is a weak peace of evidence and the same
having not been corroborated in material particulars, no reliance could
be placed thereupon.
3) The High Court committed an illegality in relying upon the statement
of the father of Appellant No.1 under Section 164 of the Code of
Criminal Procedure, which was not admissible in evidence.
4) PW-11, before whom the purported extra-judicial confession was
made, having been called to the police station as also being a witness
to the recovery should not have been relied upon.
5) Delay having occurred in recording the statement of PW-15, no
reliance thereupon could have been placed.
6) Investigating officer having fabricated a part of the records, no
reliance could be placed upon the materials found on investigation.
Mr. D.P. Singh, the learned counsel appearing on behalf of the State,
on the other hand, would submit :
1) Evidence of PW-4 must be judged keeping in view the fact that he and
Appellant No.1 were residing in the same house and as such he must
have obliged his family members in making some statements in his
favour.
2) The letter Ex.D-1 having been produced by the accused could not
have formed the basis of his statement before the police after two
years, as was suggested on behalf of the appellants to PW-4.
3) PW-15, Rajindra Kumar, being an independent witness, there is no
reason as to why his statement, that he had seen Appellant No.1 in
the company of the deceased children, should be disbelieved.
4) Recoveries of tape and clothes and in particular the shirt and trouser
belonging to Appellant No.1 point out to his guilt.
5) Finger prints of the appellants were also found on the bottles and
glasses which were recovered near the place from where the dead
bodies were recovered also corroborates the prosecution case.
6) The letter demanding ransom was in the handwriting of Appellant
No.2 which was proved by an handwriting expert, being Deputy
Director, Documents, Forensic Science Laboratory, Chandigarh is
also a pointer to their involvement.
7) Evidence of Pooja, who examined herself as PW-5, is also
corroborative of the fact that she came to know that the victims sat on
a scooter of a person whom they called as ’Chachu’, which is
admissible in evidence under Section 8 of the Indian Evidence Act,
1872.
8) Extra-judicial confession made before PW-11, Rakesh Kumar
Kanojia, who was a President of the Dhobi Maha Sabha, cannot be
disbelieved, as both the appellants thought that he being an advocate
could save them from the criminal case.
The prosecution case is based on circumstantial evidence.
Indisputably, charges can be proved on the basis of the circumstantial
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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.
We would proceed on the well-known principles in regard to
appreciation of the circumstantial evidence which were noticed by the High
Court in the following terms :
"1) There must be a chain of evidence so far complete
as not to leave any reasonable ground for a
conclusion consistent with the innocence of the
accused and it must be such as to show that within
all human probability the act must have been
done by the accused.
2) Circumstantial evidence can be reasonably made
the basis of an accused person’s conviction if it is
of such character that it is wholly inconsistent with
the innocence of the accused and is consistent only
with his guilt.
3) There should be no missing links but it is not that
everyone of the links must appear on the surface of
the evidence, since some of these links may only
be inferred from the proven facts.
4) On the availability of two inferences, the one in
favour of the accused must be accepted.
5) It cannot be said that prosecution must meet any
and every hypothesis put forwarded by the accused
however far-fetched and fanciful it might be. Nor
does it mean that prosecution evidence must be
rejected on the slightest doubt because the law
permits rejection if the doubt is reasonable and not
otherwise."
PW-1 is Dr. Balbir Singh. He conducted the post-mortem
examination. It may not be necessary for us to deal with his deposition at
length; the homicidal nature of death of the victims being not in dispute.
PW-2 is a formal witness. PW-3 is Kamal Kishore. The statements made
by him in the First Information Report for kidnapping and murder of his
children have not been doubted. He proved the letter received by him
demanding ransom. As noticed hereinbefore, the same was found to be in
the handwriting of Appellant No.2. Sahil Kumar (PW-4), is the child
witness, aged about 10 years. He was examined by the learned Trial Judge
at some length. He was found to be capable of giving evidence. He deposed
that Appellant No.1 was his uncle being his father’s elder brother and they
reside in the same house. He categorically stated in his evidence that on
08.06.2000 he saw Heena and Abhishek sitting on the scooter which was
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driven by Appellant No.1. He asserted that he had seen the scooter and
could identify the same. Even he gave the details of the place where the
children sat on the scooter of Appellant No.1. He categorically stated that
Abhishek was reluctant to sit on the scooter but he saw Heena asking him to
do so saying that Gangan was their uncle, whereupon Abhishek also sat
thereon. He also stated that Gagan was wearing a helmet. The brother of
Kamal Kishore also visited the house of Appellant No.1 with him wherein
they found a friend of Gagan to be present. PW-4 left for Ambala on the
next day. He came back on 26.06.2000. He accepted that he got his
statement recorded before the Magistrate. A document Ex.D-1 was
produced by the accused, which was shown to him, which according to him
was a letter written by Rakesh Kanojia (PW-11) and was given to him. He
alleged that the contents of the said letter was dictated by the investigating
officer. In his cross-examination, he reiterated his statement made in the
examination in chief as also his statement made under Section 164 of the
Code of Criminal Procedure and in no uncertain terms stated that at about
6.15 p.m., he saw Gagan, Abhishek and Heena sitting on the scooter. He,
however, stated :
"\005The face of the scooter driver was not visible due to
the helmet. I had given the name of Gagan as told by
Rakesh Kanojia\005"
He denied the suggestion that he was tutored by the police. He was
sought to be cross-examined by the public prosecutor in view of the
statement given by him, but for reasons best known to the court, the same
was not permitted.
Ordinarily, we would not have accepted the statement of PW-4, but
his statement that he had deposed on the basis of Ex.D-1 cannot be believed.
If Ex.D-1 was a document which was prepared by the investigating officer,
how it was produced by the accused counsel in cross-examination is beyond
all comprehensions. The learned Trial Judge made a comparison between
the statements contained in Ex.D-1 and those made under Section 164 of the
Code of Criminal Procedure so as to find a large number of discrepancies
therein, as would appear from paragraphs 105 and 106 of his judgment. It is
not contended that the same was not correct. Thus, Ex. D-1 cannot be a
document which was prepared by Nirmal Singh at the instance of PW-11, as
suggested on behalf of the Appellants or otherwise. How the said letter
could be produced by the defence after two years is again beyond all
comprehensions. Even if we discard that part of the statement made by PW-
4, there is no reason as to why a part of his statement, namely, he was
present when the children were taken by Gagan on his scooter, should be
disbelieved or at least should not be taken into consideration for the purpose
of corroboration.
He merely made a little retraction in his cross-examination. His
evidence, if read as a whole, inspires confidence.
It is well known that for certain purpose, the statement of even a
hostile witness can be believed. [See State of U.P. v. Ramesh Prasad Misra
and Another \026 (1996) 10 SCC 360].
We have, therefore, no hesitation in opining that Ex. D-1 was not and
could not have been written by Rajender Kumar Kanojia at the dictation of
the investigating officer or otherwise. To the aforementioned extent, we find
force in Mr. Singh’s contention.
PW-15, Rajinder Kumar, is another witness who also last saw the
victims sitting on the scooter of Appellant No.1. On 08.06.2000, he had
gone to the house of his partner Paramjit Singh, which is just near the place
of occurrence, and had seen three children coming on foot after getting
tuition. He saw two children, namely Heena and Abhishek boarding the
scooter of Appellant No.1, who drove the scooter towards Cine Payal
Cinema. He was undoubtedly examined on 12.06.2000. He, however,
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disclosed the reason therefore. He categorically stated that he had left for
Delhi on the same night and on his return he came to know that the police
had been visiting his house. It is not unlikely that the police might have
come to know that he was also present at the relevant time. It is important to
note that Appellant No.1 even had not been arrested at that point of time.
There was, thus, no reason for him to implicate Appellant No.1 as he had no
animosity with him. He gave a very vivid and detailed description of the
place from where the children came boarded the scooter. According to him
the children were standing about 5-7 feet away from him on the street from
where they boarded the scooter. He did not notice Sahil (PW-4). He also
accepted that he did not know Sarita. There was no reason for him to know
her. There is, thus, no reason as to why we should disbelieve his evidence.
PW-5, Pooja, is a tutor. She merely stated that she had gone to the
residence of other student, Sarita, having been informed that Abhishek and
Heena did not return to their house. Sarita told her that Heena had called
some person wearing helmet, white shirt, black pant, as ’Chacha’ and then
Abhishek and Heena sat on the scooter.
Sarita having not been examined, we do not intend to place any
reliance on her statement. We also do not accept the contention of Mr. D.P.
Singh that her statement is admissible under Section 8 of the Evidence Act.
Section 8, inter alia, speaks about the conduct of an accused. The
statements made by Sarita before Pooja vis-‘-vis the conduct of the victims
did not form part of the same transaction. Unless any fact or statement
forms part of the same transaction, it will not be admissible in evidence.
Sarita had not identified the accused. Sarita had not been examined and,
therefore, the hearsay evidence of Pooja could not have been relied upon
being based upon the purported statement of Sarita. As regards conduct of
the victims vis-‘-vis the person about whom she was informed and whose
identity was not known, cannot be said to be admissible in terms of Section
8 of the Evidence Act.
The learned Trial Judge relied upon Section 6 of the Evidence Act
which, in our opinion, has no application.
P.W. 10 is Rakesh Kumar, brother of Kamal Kishore. He deposed
that he had also searched for the missing children. He was also a witness to
the recoveries of the school bags and dead bodies. He proved that it was
Sahil who had informed him that Gagan was seen with the children.
Contention of Mr. Mahabir Singh, if that was so, Gagan should have been
named in the F.I.R., but it is not denied that on the basis of the said
statement, Kamal Kishore and the witness had gone to his house, but he was
not found there. As they were merely searching for the children, they might
not have thought at that time that Gagan had kidnapped the children.
Ordinarily a near relation would not be suspected. He categorically stated
till that time, it was not known who was the accused when the dead bodies
were recovered. We do not see any reason to disbelieve his evidence.
PW-11 is Rakesh Kumar Kanojia. He was the President of the Dhobi
Maha Sabha, Punjab. Appellant No.1 was also a member thereof. He knew
the family of Appellant No.1. He was also an advocate. According to the
said witness, on 13.06.2000, Gagan together with another person, Rajinder
Kumar, came to his residence and disclosed about a plan they had hatched
to kidnap the children for ransom. Each and every detail of the mode and
manner in which the plan was to be implemented was disclosed by them.
Extra-judicial confessions made by the appellants separately have
been stated by the said witness in sufficient details. He was extensively
cross-examined, but his statement made in examination in chief remained
unshattered. He denied and disputed that Ex. D-1 was in his handwriting.
The only comment made by Mr. Mahabir Singh in regard to his evidence
was that he was called to the police station on 16.06.2000 by the
investigating officer. He accepted the same. We do not see any reason as to
why he would not visit the police station if called upon to do so by the
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investigating officer. He did not deny or dispute that he was also a witness
to the recoveries. He had no other option but to go to the police station as
was asked by the investigating officer. Even no suggestion has been given
that he was inimically disposed towards Gagan or there was any animosity
between the two families.
Mr. Mahabir Singh relied upon a decision of this Court in State of
U.P. v. Arun Kumar Gupta [(2003) 2 SCC 202], wherein the evidence of a
witness was not believed, as he was taking extra-ordinary interest in the
investigation and was present at practically every important place and time
in the course of investigation. The said decision cannot be said to have any
application in the instant case. PW-11 was examined by the prosecution to
prove extra-judicial confession made before him by the appellants We do
not see any reason as to why he would be disbelieved. The learned Trial
Judge as also the High Court rightly relied upon his statement.
Extra-judicial confession, as is well-known, can form the basis of a
conviction. By way of abundant caution, however, the court may look for
some corroboration. Extra-judicial confession cannot ipso facto be termed
to be tainted. An extra-judicial confession, if made voluntarily and proved
can be relied upon by the courts. [See Sukhwant Singh @ Balwinder Singh
v. State through CBI - AIR 2003 SC 3362].
Extra-judicial confession, however, purported to have been made by
Appellant No.1 before his father, which was recorded in his statement before
the Magistrate under Section 164 of the Code of Criminal Procedure, was
not admissible in evidence. [See State of Delhi v. Shri Ram Lohia - AIR
1960 SC 490 \026 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.
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.
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.
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
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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.
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.
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.
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.
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.
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.
It is also not a case where we should exercise our extra-ordinary
jurisdiction in converting the penalty of rigorous imprisonment for life to
one of imposition of death sentence. We decline to do so.
For the reasons aforementioned, both the appeals are dismissed.