Harbhajan Singh vs State of U.P.

Imtiyaz Murtaza, J

These appeals have been filed against the judgment and order dated 17.10.2006 passed in S.T. No. 355 of 2004 by Additional Sessions Judge, Court No. IX, Moradabad, whereby the Appellants have been convicted u/s 302/34, I.P.C. and sentenced to death and further pay a fine of Rs. 5,000 and in default of payment of fine two year''s further R.I. They are further convicted u/s 201, I.P.C. and sentenced to R.I. for 7 years and fine of Rs. 2,000 and in default of payment of fine one year''s further R.I.

Reference is for confirmation of the death sentence of the Appellants.

The incident, which gave rise to these appeals, is that Veer Singh aged about 11 years son of the informant Ram Ratan was missing from 4 p.m. on 19.1.2004. He searched for him at various places but he could not be found. On 5.2.2004 a panchayat was held in the village to find out whereabouts of his son and some persons had also informed him that his neighbour Ram Prasad, Shyam Sunder and Harbhajan sacrificed the child in order to appease the deity. In the panchayat they were questioned and confessed that they have committed the murder and the dead body was kept on the roof of a small mud room in the house of Shyam Sunder. They alongwith these three persons came to the house of Shyam Sunder and saw that the dead body of Veer Singh was lying on the roof of the said small room. Ram Prasad and Shyam Sunder were brought to the police station and the third accused escaped while they were on their way to the police station. Pati Ram, Murari Lal, Mohd. Ahmad, Kalloo and Hukum Singh are witnesses of the confession and recovery of the dead body. A first information report was registered on 5.2.2004 at the police station.

After registration of the report Girish Prasad Raj, S.I. commenced the investigation. He reached at the place of occurrence and instructed S.I. Dal Chand to prepare the inquest memo, which is Ext. Ka-3. He also prepared photo lash, challan lash, letter to R.I., letter to C.M.O. and sample seal, which are Exts. Ka-5 to 9. He also recorded the statements of Jameel Ahmad, Habib Ahmad and Het Singh and also recorded the statement of the informant. He prepared the site plan on the instruction of the informant, which is Ext. Ka-10. On 9.2.2004, he recorded the statements of Mohd. Ahmad, Kalloo and Hukum Singh. After the conclusion of the investigation, he submitted charge-sheet against the accused persons, which is Ext. Ka-1.

The post mortem on the dead body of Veer Singh was conducted by Dr. Surendra Singh on 6.2.2004 at 3 p.m. The probable time since death was about 3 days. In the external examination he noted the dead body was of average built and average muscularity. Rigor mortis absent from upper and lower extremity, foul smell present, skin bullar present, garnish discoloration on abdomen and chest present. Abdomen and scrotum and penis distended. Maggots present. Scalp of forehead and parietal region not present exposing frontal and parietal bone. Right ear and muscle and skin of face not present appear to be destroyed (eaten) by maggots, some insect or gowned by some animal. Eye in both socket not present. Scalp hair are loose and easily detachable. Nail of finger and toe is detachable.

The doctor could not find any mark of ante-mortem injury. He noted following post mortem injuries :

Incised wound from right angle of mandible to medial and of right clavicle and incised wound from medial end of right clavicle to left auricular region vessels of both side of neck, muscle underneath of front of neck, Nect part of oesophagus, trachea and larynx not present. Hence floor of oral cavity absent.

Circular incised wound just below left knee 16 cm. in measurement muscle of leg not present exposing both tibia-fibula bones left foot partially eaten by some animal.

Circular incised wound on right leg 6 cm. below knee 14 cm. in length muscle of leg of distal part not present exposing tibia-fibula.

Left hands distal phalynx of thumb and middle finger eaten by some animal.

In his opinion cause of death could not be ascertained and viscera was preserved. The viscera report was negative of any poisoning.

After submission of the charge-sheet the case was committed to the Court of Sessions and the Sessions Judge had framed charges u/s 302/34, I.P.C. and 201, I.P.C. The accused persons denied charges and claimed trial.

The prosecution in order to prove its case examined 4 witnesses in all.

P.W. 1, Ram Ratan deposed that Veer Singh was his son and his age was 11 years. On 19.1.2004 at about 4 p.m. he was found missing while he was playing outside his house. He searched for him in village and in his relations. On 5.2.2004 a panchayat was held in the village, which was attended by Ram Prasad, Shyam Sunder and Harbhajan. Pati Ram, Hukum Singh, Mohd. Ahmad, Kalloo, Murari Lal and several other villagers had also attended the panchayat. The villagers had inquired from the accused and they confessed that in order to appease the deity they sacrificed Veer Singh and committed his murder. The accused had also disclosed that the dead body of Veer Singh was kept on the roof of a small kachchi kothi in the house of Shyam Sunder. The persons who were attending the panchayat alongwith accused persons reached at the house of Shyam Sunder and the dead body was recovered from the roof of the said small room. He alongwith other persons of the panchayat brought Ram Prasad, Shyam Sunder and Harbhajan to the police station. On their way to the police station Harbhajan escaped. He scribed the report by Megh Singh and lodged at the police station which is Ext. Kha-1.

P.W. 2, Mohd. Ahmad Khan deposed that Ram Prasad, Shyam Sunder and Harbhajan are residents of his village. About one and half years back son of Ram Ratan was missing 15-16 days prior to the occurrence. Ram Ratan had searched his son Veer Singh at several places but he could not be found. One person of the village had informed Ram Ratan that Shyam Sunder, Ram Prasad and Harbhajan had committed murder of Veer Singh for appeasing the deity. A panchayat was held in the village which was attended by Pati Ram, Murari Lal, Kalloo, Hukum Singh and several other villagers including three accused persons. Initially they were not disclosing anything but some force was applied and they confessed their guilt and admitted that they have committed murder of Veer Singh and his dead body was kept on the roof of a small room (kachchi kothi) in the house of Shyam Sunder. All the persons had gone to the house of Shyam Sunder and he showed the dead body kept on the roof of small room. They recognized the dead body of Veer Singh. While they were taking the accused persons to the police station Harbhajan escaped. The police had also recovered the dead body from the house of Shyam Sunder and prepared the inquest memo, which is Ext. Ka-3.

P.W. 3, Dr. Surendra Singh conducted the post mortem examination report. He also deposed that there was no ante-mortem injuries and in order to ascertain the cause of death viscera was preserved. He also admitted that seeing the dead body it appeared that after committing the murder flesh was taken out from the dead body.

P.W. 4, S.I. Girish Prasad Raj was the Investigating Officer of the case.

The case of the accused was of denial and false implication.

The Sessions Judge considering the evidence on record convicted the Appellants, as aforesaid.

We have heard learned Counsel for the Appellants and the learned A.G.A. for the State.

Learned Counsel for the Appellants has challenged the findings of the trial court on the ground that the link in the chain of circumstance is missing, the Appellants have been convicted only on the basis of confession and recovery of the dead body. The confession was obtained after using force. The memo of arrest Ext. Ka-2 shows that there were injuries on the persons of the accused, the Appellants were also falsely implicated as they had enmity with the scribe of the report. Lastly, it was submitted that the prosecution failed to prove homicidal death in this case. In the post mortem report, Doctor could not ascertain the cause of death hence viscera was preserved and in the viscera report no poison was found. In view of this the conviction of the Appellants u/s 302, I.P.C. is bad in law.

It is a case of circumstantial evidence. It has been laid down by the Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

In the case of Padala Veera Reddy v. State of Andhra Pradesh, 1991 SCC 407, the Apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :

The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;

Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ;

The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else ; and

The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The case at hand has to be gauzed in the background of aforesaid principles.

In the present case following circumstances are relied upon by the Sessions Judge :

Homicidal death of the deceased.

Extra-judicial confession.

Conduct of the accused.

Recovery of dead body from the house of Shyam Sunder.

The first submission of counsel for the Appellants is that the prosecution has failed to prove homicidal death. It was pointed out that in the post mortem report Doctor Surendra Singh, P.W. 3, mentioned that all the injuries were post mortem injuries and cause of death could not be ascertained and viscera was preserved. The viscera report shows that no chemical poison was found. Therefore, conviction of the Appellant u/s 302, I.P.C. is not possible.

We do not find any substance in this submission. It is important to note that the dead body was found on the roof of a small room inside the house of the Appellant Shyam Sunder. No animal can reach there without being noticed by the inhabitants of the house. The injuries noted by the doctor in the post-mortem examination report are not possible by the animal bite. The doctor had noted injury No. 2 circular incised wound just below knee 16 cms. in measurement and injury No. 3 was noted as circular incised wound on right leg 6 cms. below knee 14 cms, in length. These two injuries are not possible by animal bite which normally could be caused by any sharp cutting weapon. P.W. 3, Dr. Surendra Singh deposed that injuries appear to be post mortem injuries. He did not find any ante-mortem injury, therefore, he preserved viscera. The doctor only gives his opinion about the apparent cause of death. In the post mortem examination report several muscles have been found missing, therefore, it would not have been possible for the doctor to ascertain actual cause of death. The clothes of the deceased were sent to scientific laboratory for analysis and the report shows that shirt, baniyan and sweater contained blood stains. The presence of blood on these clothes clearly indicates that deceased sustained injuries which were ante-mortem in nature. We are not in agreement with the opinion of the doctor that all the injuries were post mortem injuries. The Apex Court in the case of Main Pal and Another Vs. State of Haryana and Others, has held as under :

The opinion of the doctor cannot have any binding force and cannot be said to be the last word on what he deposes or meant for implicit acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested, in the same manner as that of any other witness, keeping in view only the fact that he has some experience and training in the nature of the functions discharged by him.

The counsel for the Appellants challenged the admissibility of extra judicial confession on the ground that the said confession is not voluntary and obtained after using force and hit by Section 24 of the Evidence Act. The evidence of extra-judicial confession consists of testimonies of P.W. 1, Ram Ratan and P.W. 2, Mohd. Ahmad Khan. The law relating to extra-judicial confession is well-settled. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. The counsel for the Appellant submitted that Sessions Judge relied upon the confession made by the Appellants before a panchayat which was held to find out whereabouts of Veer Singh, deceased. It was submitted that the said confession was retracted and was obtained by force. In support of his submission the counsel for the Appellants drew the attention of the Court to a Fard (Ka-2) which was prepared while Appellants Ram Prasad and Shyam Sundar were brought to the police station. It was mentioned therein that Ram Prasad and Shyam Sunder were in injured condition. Furthermore, P.W. 2, Mohd. Ahmad Khan deposed that Shyam Sunder was not assaulted at the police station. He further deposed that when they had taken accused persons to the police station they were not in injured condition. This part of the statement of P.W. 2 cannot be accepted in view of the specific averment in the Fard Ka-2 about the fact that the accused were in injured condition while they were brought to the police station by the witnesses. There is no doubt that Appellants Ram Prasad and Shyam Sundar had injuries when they were brought to the police station. The Sessions Judge had also admitted that force was used and he mentioned in the judgment that it appears that at the time of panchayat force might have been used by the people and some of them even had assaulted them too and only then they might have confessed the crime and got the dead body recovered. This being the position the extra-judicial confession cannot be relied upon because u/s 24 of the Indian Evidence Act any confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise etc. In view of the above, the confession made by the accused person was not a voluntary confession and in our opinion the Sessions Judge has wrongly relied upon this extra-judicial confession. There is one more circumstance for not relying upon this confession is that the actual words or statements of the accused is neither mentioned in the first information report by the informant nor mentioned by any of the witnesses in their deposition in Court. It is also important to mention that who made first confession or last confession is also not known. Both the witnesses deposed that accused confessed to have committed the murder for appeasing the deity. The Apex Court in the case of Sunny Kapoor Vs. State (UT of Chandigarh), where the joint confession was not relied upon, has held as under :

It is also significant to note that as to what statements were made by the Appellants by way of extra-judicial confessions had not been disclosed. It is wholly unlikely that all the three Appellants would make a joint statement. P.W. 11 did not disclose as to whether any of the Appellants made the statements before him or all of them gave statements one after the other.

In our opinion the Sessions Judge should have rejected the evidence of extra-judicial confession made by the accused persons in a panchayat which was in violation of Section 24 of the Evidence Act.

Another circumstance relied upon by the trial court was recovery of the dead body from the house of Shyam Sunder on the basis of the confession made by the accused. The dead body of Veer Singh was recovered from the house of Shyam Sunder. The case of the prosecution from the very inception is that in a panchayat which was held in the village to find out whereabouts of the Veer Singh Appellants after confessing the crime got recovered the dead body from the house of Shyam Sunder. All these facts are mentioned in the first information report lodged by Ram Ratan. After the registration of the report S.I. Girish Prasad Raj, P.W. 4 reached at the place of occurrence and directed S.I. Dal Chand to prepare the inquest after the recovery of the dead body from the house of Shyam Sunder. The prosecution has fully proved that the dead body of Veer Singh was recovered from the house of Shyam Sunder and this circumstance is admissible u/s 8 of the Indian Evidence Act. The recovery of the dead body on the pointing out of the accused could be admissible u/s 8 of the Evidence Act. The Apex Court in the case of A.N. Venkatesh and Another Vs. State of Karnataka, has held as under :

By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct u/s 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.). Even if we hold that the disclosure statement made by the accused-Appellants (Exts. P-15 and P-16) is not admissible u/s 27 of the Evidence Act, still it is relevant u/s 8. The evidence of the Investigating Officer and P. Ws. 1, 2, 7 and P.W. 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence u/s 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible u/s 8 of the Evidence Act.

In our opinion, apart from the conduct of the accused admissible u/s 8 of the Evidence Act no other evidence is against Appellant Ram Prasad and Har Bhajan. The dead body was recovered from the house of Appellant Shyam Sundar. The evidence on record fully establishes that the dead body of the deceased was recovered on the roof of a small room. He did not explain about the recovery of dead body from a place which was exclusively in his possession and it was not accessible to all. u/s 106 of the Evidence Act burden was on the Appellant Shyam Sunder to disclose about the death of the deceased which was exclusively in his knowledge.

The total evidence on the record clearly shows that deceased was done to death and his dead body was kept on the roof of a small room inside the house of Appellant Shyam Sunder. In view of the above we are of the opinion that the prosecution has fully proved that deceased Veer Singh died a homicidal death and his dead body was recovered on the information given by the accused and the place where the dead body was recovered was in exclusive possession of the Appellant Shyam Sundar. The only evidence against other accused namely, Ram Prasad and Harbhajan is that they had knowledge that the dead body was kept in the house of Shyam Sundar only. The chain of the circumstances is not complete against Appellants Ram Prasad and Harbhajan and they are entitled to acquittal. So far as the case of Shyam Sundar is concerned the prosecution has successfully proved incriminating circumstances which unmistakabily and inevitably led to his guilt and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner inconsonance with his innocence. During the time of questioning u/s 313, Cr. P.C. the Appellant Shyam Sundar instead of making at least an attempt to explain or clarify the incriminating circumstances in culpating him made false denial. The false denial of the Appellant Shyam Sundar about the incriminating circumstances provides the missing links in the chain of incriminating circumstances. In the case of Ganesh Lal Vs. State of Rajasthan, the Apex Court has held as under :

It is not necessary for the accused to speak and explain. However, when the case rests on circumstantial evidence the failure of the accused to offer any satisfactory explanation for his possession of the stolen property though not an incriminating circumstance by itself would yet enable an inference being raised against him because the fact being in the exclusive knowledge of the accused it was for him to have offered an explanation which he failed to do.

In view of the above, we are of the opinion that Sessions Judge has rightly convicted Appellant Shyam Sundar u/s 302 I.P.C.

Lastly the Sessions Judge has awarded death sentence to Appellant Shyam Sunder. The Sessions Judge considered the fact that the deceased was sacrificed to appease the deity and it was also held that his flesh was taken out from several parts of the body. We have already disbelieved the extra-judicial confession of the accused in the earlier part of the judgment. The motive for the crime was only mentioned on the basis of joint extra-judicial confession. Therefore, it cannot be said that the murder was committed to appease the deity. We have already acquitted two Appellant of the charges u/s 302/34, I.P.C.

Under the old Code of Criminal Procedure ample discretion was given to the Courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of Criminal Procedure, 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the Courts to record special reasons if ultimately death sentence is to be awarded. A Constitution Bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab, while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.

The Apex Court in the case of Ram Pal v. State of U.P. (47)2003 ACC 567, for the reasons mentioned in paragraphs 8 and 9 of the judgment reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident.

Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance.

Considering the overall circumstances of the case this case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed and we are of the view that a sentence of imprisonment for life to the Appellants would meet the ends of justice.

We therefore, reduce the sentence of death of the Appellant Shyam Sundar to life imprisonment.

For the reasons stated above the above appeals are decided as under :

Crl. Appeal No. 6457 of 2006, Harbhajan v. State, is allowed. The Appellant is acquitted of the charges. The order of conviction and sentence of the Appellant is set aside. He is in jail. He shall be released forthwith unless wanted in any other case.

Crl. Appeal No. 6806 of 2006, Ram Prasad v. State, is allowed. The Appellant is acquitted of the charges. The order of conviction and sentence of the Appellant is set aside. He is in jail. He shall be released forthwith unless wanted in any other case.

Crl. Appeal No. 6660 of 2006, Shyam Sundar v. State, is dismissed with the modification that while affirming the conviction of the Appellant u/s 302 read with Section 34, I.P.C. we set aside the sentence of death imposed by the trial court and reduce the same to imprisonment for life. The conviction and sentence of the Appellant u/s 201, I.P.C. to undergo R.I. for 7 years is upheld. Both the sentences shall run concurrently.

Appellant is in jail, he shall be kept there to serve out the sentences as modified by this Court.

Reference made by learned Sessions Judge for confirmation of death sentence of the Appellants is hereby rejected.