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Judgment
Alok Kumar Verma, J
These two Criminal Appeals are directed against the judgment and sentence dated 20.10.2012 passed by learned Ist Additional Sessions Judge, Rishikesh, District Dehradun in Sessions Trial No.45 of 2005, State vs. Sudhir and others, whereby the trial court has convicted both the accused/appellants under Section 302 read with Section 34 IPC and sentenced each of them to imprisonment for life and directed to pay a fine of Rs.5,000/-. The accused/appellants have been further convicted under Section 394 read with Section 34 IPC and sentenced to rigorous imprisonment for a period of seven years and directed to pay a fine of Rs.3,000/-. The accused/appellants have also been convicted under Section 411 IPC and sentenced each of them to rigorous imprisonment for a period of two years. The sentences are to run concurrently.
The case of the prosecution is that an information has been given by the informant-Avinash Kumar Vashisth S/o Late Ram Rakha Sharma, R/o Village Pratit Nagar, Police Station Raiwala, District Dehradun, PW-2 to the Station Officer of Police Station, Raiwala, District Dehradun through his Tehrir dated 24.10.2004, Ext.Ka.6, that her sister Km. Magan Kumari, daughter of late Ram Rakha Sharma is residing in Raiwala market. She went to "Char Dham Yatra", on 17.10.2004. The deceased known as Baba, an old person originally from Nepal, was residing in the house of Magan Kumari, who was in her service. Baba was staying alone in the house of Magan Kumari when she went to the Char Dham Yatra. One Gopal S/o Banarasi informed him today i.e. 24.10.2004, on phone, that the door of the house of Magan Kumari is open and Baba is not visible. The informant went to the house of Magan Kumari at 04.00 p.m. and saw that the door was open, the articles of the house and dead body of Baba were lying on the floor.
The First Information Report, Ext.Ka.30, was registered under Section 460 IPC on 24.10.2004 at 16:45 hours in Crime No.88 of 2004 against the unknown persons.
After registration of First Information Report, the Investigating Officer Naveen Chandra Semwal-PW-9, went to the house of Magan Kumari on the same day, i.e. 24.10.2004 and prepared map, Ext.Ka.19, of the place of occurrence, and took the blood stained clothes of the deceased, blood stained towel and pillow cover, two pointed iron rods, sample of simple and blood stained earth from the place of the occurrence. Almirah was broken by the said pointed iron rods. The "panchnama", of the dead body of the deceased was conducted on the same day by Chandan Singh-PW-8, in the presence of witness Avinash Kumar Vashisth-PW-2 and witness Dinesh Kumar-PW-3. Inquest report is Ext.Ka.10.
The post-mortem of the dead body of the deceased was conducted by Dr. R.K. Tamta, Surgeon-PW-5, on 25.10.2004 at 04.30 p.m. in Doon Hospital, Dehradun.
On 24.10.2004, when Magan Kumar was returning from Badrinath and was in Karnprayag, with her maternal elder brother Avadh Raj Vashisth, her younger brother Avinash Kumar Vashisth informed her about the occurrence on phone. She reached her house next morning i.e. on 25.10.2004. Magan Kumari-PW-1 informed to the Police Station Raiwala, District Dehradun on 23.11.2004 through her Tehrir, Ext.Ka.2, that she went to Char Dham Yatra on 17.10.2004 with her maternal elder brother Avadh Raj Vashisth. The deceased Gopal Baba was alone in her house. The occurrence took place in the intervening night of 23/24.10.2004, when Gopal Baba was murdered by unknown persons and these known persons took away a mobile hand set No.9818749101 of Sumsung Company, IMEI No.351579002177051, of his maternal elder brother Avadh Raj Vashisth. She submitted a list, Ex.K.1, of missing articles. According to this list, Rs.15,000/-, ornaments, a patten (Khadau) of silver, 20 silver coins and other articles were missing from her house. She is in apprehension that this unfortunate incident may be caused by the unknown persons.
The said mobile handset was missing from the date of occurrence. During investigation, on 11.12.2004 on listening, it was found that the said mobile handset was used by the co-accused Naveen Singhal with the SIM No. 9412583116. Naveen Singhal was arrested on 14.12.2004 and one mobile handset with SIM No.9412583116 was recovered from him. Naveen Singhal was questioned. He disclosed that the said missing mobile handset was offered to him for sale by the co-accused Sudhir @ Sushil @ Cheeku but deal could not be materialized. Therefore, the said mobile handset was returned to the co-accused Sudhir by him on 30.10.2004.
The informant Avinash Kumar Vashisth and Magan Kumari stated in the investigation that accused Rajneesh Yadav, Constable of PAC, used to come to visit the family of the informant and Rajneesh Yadav knew very well that Magan Kumari was residing alone in her house and she had money and ornaments in the house. Rajneesh Yadav also never visited her house after this occurrence. These witnesses were in apprehension that Rajneesh Yadav was involved in the incident. The accused Sudhir @ Sushil @ Cheeku was arrested on 24.12.2004 and at the time of his arrest, the missing mobile handset and three silver coins were recovered from this accused, who gave a confessional statement that the said offence was committed by him in the night of 23/24.10.2004 with accused Rajneesh Yadav and accused Jitendra Yadav. Accused Jitendra Yadav has been acquitted by the trial court from the offences punishable under Section 302 read with Section 34 of IPC and Section 394 read with Section 34 of IPC.
Accused Rajneesh Yadav surrendered before the concerned Court on 17.01.2005. Confessional statement of the accused Rajneesh Yadav led to the recovery of a blood stained sickle, Ext.Ka.16, from the field of the back of the house of Magan Kumari, which was used in the offence, and a patten of silver with two silver coins from his rented house on 21.01.2005 after taking him on Police Custody Remand from the concerned Court.
After completion of the investigation, charge sheet, Ext.Ka.29, is filed.
The case reached the Sessions Court on 30.05.2005, after committal proceedings.
Charges were framed on 21.01.2006. The accused persons pleaded not guilty and claimed to be tried.
The prosecution examined, altogether, ten witnesses.
The statements of the accused were taken under Section 313 of the Code of Criminal Procedure, 1973 about the circumstances and incriminating evidences. They denied all of them.
Upon consideration of evidences adduced by the prosecution, the trial court held that the prosecution has proved the existence of common intention and that the accused persons/appellants committed the crime in furtherance of the common intention. Therefore, the trial court convicted these accused persons/appellants under Section 302, Section 394 with the aid of constructive and joint liability under Section 34 IPC and sentenced. The appellants are also convicted for the offence punishable under Section 411 IPC. Remaining two accused persons, namely, Naveen Singhal and Jitendra Yadav are acquitted from all the charges. Being aggrieved by the verdict of conviction and sentence imposed upon them, the appellants preferred these appeals.
The trial court convicted the appellants inter alia on the following grounds:-
(1) Rajneesh Yadav, Constable of PAC, used to visit to the residence of Magan Kumari-PW-1 and Avinash Kumar Vashisth-PW-2 and he knew that Magan Kumari was residing alone in her house and she had huge money and ornaments.
(2) After the incident, Rajneesh Yadav never came to the houses of these witnesses.
(3) Rajneesh Yadav knew that Magan Kumari had gone in her "Yatra", and he prepared a plan with co-accused Sushil to commit the said offence.
(4) The missing mobile handset and three silver coins were recovered from accused Sushil Kumar.
(5) A Sickle, which was used in the offence, a patten of silver and two silver coins of Magan Kumari were recovered on the identification of the accused Rajneesh Yadav.
According to the report of Senior Superintendent of Police, Dehradun dated 31.12.2018, the appellant Sushil @ Sudhir Kumar @ Cheeku was murdered on 16.10.2017, during the pendency of these appeals, by unknown person. None of his near relative has applied for leave to continue the Criminal Appeal No.323 of 2012. Therefore, the Criminal Appeal No.323 of 2012 relating to appellant-Sushil @ Sudhir Kumar is finally abated on the death of this appellant.
We heard learned counsel for the appellant-Rajneesh Yadav and learned counsel for the respondent State, perused and gone through the record.
Learned counsel appearing for the appellant-Rajneesh Yadav has submitted that no direct evidence is available on record against this appellant for committing the murder; no independent witness of the alleged recoveries of a sickle, a patten and two silver coins, has been produced; the alleged recovery of a patten and two silver coins are general articles and these articles can be procured from the market; the name of this appellant has come during investigation only after the statement of Magan Kumari, who suspected the appellants. The alleged articles were recovered on 21.05.2005, which creates a doubt about the recovery. The statements of the witnesses are also contradictory. In a case of circumstantial evidence, all circumstances relied upon by the prosecution must be established by cogent and reliable evidence and all the proved circumstances must provide a complete chain.
The learned counsel for the respondent, however, argued in support of the impugned judgment and submitted that the prosecution has proved its case beyond all the reasonable doubts.
This case rests on circumstantial evidence and when a case rests on circumstantial evidence, such evidence must satisfy these tests.
(i) The circumstances from which the conclusion of guilt is to be drawn, should be fully established.
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(iii) The circumstances should be of a conclusive nature.
(iv) They should exclude every possible hypothesis except the one to be proved.
(v) There must be a chain of evidence to show complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities, the act must have been done by the accused.
To bring home the guilt of the accused, prosecution has examined ten witnesses.
Magan Kumari, PW-1, deposed that she is residing in front of station Raiwala. The deceased Gopal Bahadur was her watchman. She went to the "Char Dham Yatra", on 17.10.2004 with her cousin Avadh Raj Vashisth, who resides in Delhi. When she was returning from Badrinath on 24.10.2004, her younger brother Avinash Kumar Vashisth, PW-2, informed her about the incident on phone. She came back on 25.10.2004. She informed the police about the incident through her Tehrir, Ext.Ka.2, with the list of missing articles, Ext.Ka.1. She stated identified her three silver coins and a mobile handset of her maternal elder brother, Avadh Raj Vashisth, PW-4. These articles were missing from the day of incident and the said mobile handset and silver coins were recovered from the accused Sushil by the police on 24.12.2004. In cross examination, this witness deposed that her Tehrir and list of missing articles are undated. She testified that she did not know that what year the recovered coins dated, but those coins belong to the year 1905 and 1941.
Avinash Kumar Vashisth, PW-2, is brother of Magan Kumari. He informed the police on 24.10.2004 about the incident. He deposed that her sister went to the Char Dham Yatra. One Gopal son of Banarsi had informed him that the door of the house of her sister is open and Baba, Chaukidar, has not been seen. He went there and saw that the articles of the room and dead body of Baba were lying. He informed to the police station through his Tehrir, Ext.Ka.6, dated 24.10.2004. He is a witness of panchnama of the dead body of the deceased. He further deposed that accused Sudhir @ Sushil was arrested by police on 24.12.2004 and a mobile handset of his maternal brother Avadh Raj Vashisth and three silver coins were recovered from this accused in his presence. At the time of these recoveries, his brother Dinesh Kumar, PW-3, was also present and at the time of these recoveries, his sister Magan Kumari came there.
Dinesh Kumar, PW-3, is brother of Magan Kumari. He went to the house of her sister with his elder brother Avinash Kumar Vashisth after receiving the information of the occurrence on 24.10.2004. He stated that two rods were found on the spot. He is a witness of panchnama of the dead body of the deceased. He proved his signature on the panchnama, Ext. Ka-10. He deposed that the accused Sudhir @ Sushil was arrested by Police on 24.12.2004 and a mobile handset and three silver coins were recovered from this accused. At the time of these recoveries, her sister Magan Kumari came there and identified the recovered articles. At the time of arresting and recovery proceedings his brother Avinash Kumar Vashisth was also present there.
Avadh Raj Singh, PW-4, is maternal brother of Magan Kumari. He deposed that he is residing in Delhi. He went to the Char Dham Yatra on 17.10.2004 with Magan Kumari. Chowkidar Gopal Bahadur was alone in the house of Magan kumari. On 24.10.2004, when they were in Karnprayag, his maternal brother Avinash Kumar informed about the incidence on phone. They came back and from the house of Magan Kumari, he went to Delhi. He inquired about his mobile handset on phone after three-four days, then Magan Kumari informed him that his mobile hand set is also missing. He further deposed that he bought his mobile handset at Rs. 15,000/- from Villabhgarh and its initial number was 98 and last digits were 9101.
Dr. R.K. Tamta, Surgeon, PW-5, conducted the post-mortem of the dead body of the deceased, aged about 58- 60 years, at 4:30 P.M. on 25.10.2004 in Doon Hospital, Dehradun. During the post-mortem examination, following anti-mortem injuries were found on the dead body of the deceased-
(1) Incised wound bone deep 4 x 1 c.m. oblique from lower right eyelid to right nostril.
(2) Incised wound right side on the cheek, bone deep 2 x1 c.m. vertical.
(3) Incised wound left side on the face 6 x 1 c.m., 4 c.m. away from left tragus.
(4) Incised wound 4 x 1 c.m. on the left cheek, bone-deep 2 c.m. away from wound no. 3.
(5) Incised wound 4 x 1 c.m., below 1 c.m. from wound no. 4.
(6) Incised wound 2 x 1 c.m. bone deep upto below 2 c.m. from the corner of left lip.
(7) Abraded contusion 5 x 1 c.m. on right arm oblique 6 c.m. below from shoulder.
(8) Abraded contusion 2 x 1 c.m. outer side from wound no. 7.
(9) Abraded contusion 1 x 1 c.m. outer side of right clavicle bone.
(10) Abraded contusion 1 x 1 c.m. inside 4 c.m. from wound no. 9.
(11) Three abrasions left side on the chest 3 c.m. below from nipple. First abrasion 1 x 1 c.m., second abrasion 2 x 1 c.m., 1 c.m. below from first abrasion. 3rd abrasion 5 x 1 c.m., 2 c.m. below from abrasion no. 2.
(12) Incised wound 3 x 1 c.m. on the scalp 5 c.m. away from right ear.
(13) Incised wound 3 x 1 c.m., 7 c.m. ahead from wound no. 12.
According to evidence of Dr. R.K. Tamta, the cause of death was hemorrhage and shock due to the result of ante-mortem injuries and possible time of death was 48 hours. This witness has stated that the death may be caused in the night of 23/24.10.2004 from the blow of sharp edged weapon and lathi-danda.
Constable Roshan Singh, PW-6, who at the relevant time was constable at Dalanwala Police Station, Dehradun, deposed that on surveillance, it was found that the missing mobile hand-set, SIM No. 9818749101, IMEI No. 351579002177051, was used by co-accused Naveen Singhal with SIM No. 9412583116. He deposed that the call details from 27.10.2004 to 05.11.2004 of this mobile hand-set, Ext. 16/1 to 16/8, was received by him from BSNL office, Meerut.
Ashok Kumar Sharma, PW-7, is a official of BSNL. He deposed that he cannot verify the Ext. 16/1 to 16/8 since there is no signature of Vivek Bhushan, Nodal Officer of BSNL, on this document, nor the copy of this document is on his record.
Chandan Singh, PW-8, is retired Sub-Inspector. He proved the inquest report, Ext. Ka-10, memo of sample of simple and blood stained earth, Ext. Ka-7, memo of blood stained clothes, Ext. Ka-8, memo of recovered two iron rods, Ext, Ka-9. He stated that the accused Rajneesh Yadav confessed and on his identification a sickle, Ext-16, was recovered from the field, situated from the back of the house of Madan Kumari. He further stated that a patten of silver, Ext.-6 and two silver coins, Ext.-7,8 were recovered from the rented house of the accused Rajneesh Yadav on the identification of this accused. He testified the memo of recovery of sickle, Ext. Ka-17, and memo of recovery of patten and coins, Ext. Ka-18.
Naveen Chandra Semwal, PW-9, was Station Officer of Police Station, Raiwala, Dehradun at the relevant time. He started investigation of this matter. He prepared the map of the place of the occurrence, Ext. Ka-19. He took the sample of simple and blood stained earth and clothes from the spot. He testified the memo, Ext.Ka-9 of recovered two rods, Ext. 13 & 14. He deposed that Magan Kumari submitted her Tehrir on 23.11.2004.
S.I. Dinesh Baunthiyal, PW-10, submitted the charge-sheet, Ext. Ka-29 and narrated the steps taken by him in the course of the investigation. He proved the FIR, Ext. Ka-30, and G.D. Ext. Ka-31, in the handwriting of Constable Narendra Singh.
According to the prosecution, Naveen Singhal was arrested on 14.12.2004. He disclosed that the missing mobile hand-set was offered to him for sale by Sushil but deal could not be finalized. Therefore, the said mobile hand-set was returned to Sushil on 30.10.2004. On disclosure statement of Naveen Singhal, co-accused Sushil was arrested on 24.12.2004 and a missing mobile hand-set with three stolen coins were recovered from him. At the time of the arrest of co-accused Sushil, he gave a confessional statement that accused Rajneesh Yadav arranged the plan for robbery and in furtherance of the pre-arranged plan with Rajneesh Yadav and Jitendra Yadav he entered in the house of Magan Kumari at 8:00 P.M. on 23.10.2004, caused death of Nepali servant with weapon and took away Rs. 2500/-, sum silver coins, mobile handset and other articles.
The accused-appellant Rajneesh Yadav surrendered before the concerned court on 17.01.2005. He was taken on police custody remand. Appellant Rajneesh Yadav gave a confessional statement that in the night of 23/24.10.2004, he and his companions Sushil and Jitendra Yadav entered in the house of Magan Kumari, committed murder in that house and looted property by killing watchman Gopal Bahadur. This confessional statement of Rajneesh Yadav led to the recovery of blood stained a sickle, which was used in the offence, a patten of silver and two silver coins. According to the prosecution, these facts connect Rajneesh Yadav with co-accused- Sushil.
It is a well settled law that no confession made by any person, while he was in the custody of police, shall be proved against him. In Haricharan Kurmi vs. State of Bihar, AIR 1964 SC 1184, the Constitution Bench of Hon' ble Apex Court referred to Section 3 of the Evidence Act, 1872 and observed that confession of a co-accused is not evidence within the meaning of Section 3 of the Evidence Act. It is neither oral statement which the court permits or requires to be made before it as per Section 3 (1) of the Evidence Act nor does it fall in the category of evidence referred to in Section 3(2) of the Evidence Act, which covers all documents produced for the inspection of the court. Thus, such a confession may not be evidence as strictly defined by Section 3 of the Evidence Act.
To invoke Section 34 of IPC, pre-arranged plan or meeting of minds is a sine qua non but there is no cogent and positive evidence on record to show that appellant Rajneesh Yadav and co-accused Sushil were familiar to each other. The statement given by an accused involving himself in the crime and also implicating third person cannot be proved legally in the court as it will be conflicting with Section 25 and 26 of the Evidence Act. If such evidence or confession cannot be proved then the occasion for utilizing that statement against another person does not arise.
In this case, there were as many as four accused. Co-accused Naveen Singhal and co-accused Jitendra Yadav are acquitted by the trial court itself. The learned counsel appearing for the State has not mentioned that the State has filed any appeal against the acquittal of these two co-accused persons. Except the statement of the co-accused Sushil, which was given before the Police, there is no other evidence on the record to show any connection of the appellant Rajneesh Yadav with co-accused Sushil.
Magan Kumari, PW-1, has stated that the appellant Rajneesh Yadav used to come to her house with family before this occurrence but after the incident he never came to her house. Hence, she has expressed suspicion on this appellant but there is not a single credible piece of evidence linking the appellant Rajneesh Yadav to the crime in question. It is the basic principle of criminal jurisprudence that suspicion, however grave, cannot take the place of proof. In Sheila Sebastian vs. R. Jawaharaj and another, (2018) 7 SCC 581, the Hon'ble Apex Court has observed that law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, co-incidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof.
The prosecution case is that a confessional statement of the appellant Rajneesh Yadav led to recovery of a blood stained sickle, Ext.-16, which was used in the offence, and a patten of silver and two silver coins on 21.01.2005 on the identification of this appellant. In these alleged recovery proceedings there was no public witness.
Magan Kumar, PW1, stated that she came back on 25.10.2004 from Char Dham Yatra. She submitted a list, Ext.Ka-1, of missing articles to the police station with her Tehrir Ext. Ka-2. The first Investigating Officer Navin Chandra Semwal, PW-9, stated that Magan Kumari submitted her Tehrir only on 23.11.2004. There is no explanation of the prosecution regarding this unnecessary delay. There is no any identification mark of patten and silver coins in the list of Magan Kumari. In these circumstances, the prosecution could not able to explain this fact that how Magan Kumari recognized the said recovered articles. The learned counsel appearing for the appellant Rajneesh Yadav rightly pointed out that the patten and the said silver coins are a common material or things which are available anywhere in the market.
A sickle, a hand held agricultural tool, is used for harvesting or reaping grain crops or cutting and it is also available anywhere in the market. In Krishan Chand vs. State of H.P., 2018 (3) CCSC 1413 (SC), the Hon'ble Apex Court has held that in the absence of independent witnesses, the evidence of the police witnesses must be scrutinized with greater care specially when there are contradictions in their evidences.
The witness Chandan Singh, PW-8, witness of recovery of a sickle, a patten and two silver coins, stated that they stayed at the location of the recovery of the sickle for two-three hours, whereas, the Investigating Officer, SI, Dinesh Baunthiyal, PW-10, stated that they stayed at the place of recovery of the sickle for 1 hour and a ½ hour. The witness Chandan Singh, PW-8, stated that public witnesses were not summoned at the time of recovery of a patten and two silver coins, whereas the witness Dinesh Baunthiyal, PW-10, has stated that he summoned the landlord and people of that locality but none had turned there. It is also important to note that before completion of the memo of these recoveries, Ext.Ka-17 and Ext. Ka-18, it are mentioned there that copies of these recovery memo have been given to the accused Rajneesh Yadav.
In Satpal vs. State of Haryana, 2018 (2) CCSC 1104 (SC), the Hon'ble Apex Court has observed that to sustain a conviction on the basis of circumstantial evidence, it is necessary that all links in the chain of circumstances must be complete leading to the only hypothesis for guilt of the accused. If there is any missing link in the chain of circumstances and the possibility of innocence cannot be ruled out, the benefit of doubt must be given by acquittal. Any recovery on the basis of confession, under Section 27 of the Evidence Act, cannot form the basis for conviction.
It is true that a grave and heinous crime has been committed but there is no satisfactory proof of the guilt of the accused Rajneesh Yadav. The present case being a case of circumstantial evidence, the prosecution has not proved the chain of circumstances to show the involvement of the appellant Rajneesh Yadav in the crime. Therefore, in view of the matter, we have no other option but to give the benefit of doubt to the appellant Rajneesh Yadav. Accordingly, the Criminal Appeal No. 316 of 2012 is allowed. The conviction and sentence of the appellant Rajneesh Yadav is set aside. Appellant Rajneesh Yadav is on bail. Bail bonds executed by him shall stand cancelled and fine amount, if any, paid by him, is ordered to be refunded forthwith.
The appellant Rajneesh Yadav is directed to make compliance of Section 437-A of the Code of Criminal Procedure, 1973 within 15 days from the date of this Order by appearing before the court concerned at District Dehradun and execute a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned, which shall be effective for a period of six months.
The Criminal Appeal No. 323 of 2012 relating to the appellant Sushil alias Sudhir has been abated on the death of this appellant.
Let a copy of this Order be sent to the concerned court for intimation and compliance.