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2002 DIGILAW 1041 (MP)

Golu @ Rajendra v. State of M. P.

2002-11-25

DEEPAK VERMA, N.K.JAIN

body2002
JUDGMENT Jain, J. -- 1. All these three appeals (Nos. 1032,1186 and 1293/1997) arise out of the same judgment dated 3.10.1997, rendered by 6th Additional Sessions Judge, Ujjain, in Session Trial No. 149/1996, convicting accused appellants Sanjay @ Guddu, Shailendra and Golu @ Rajendra under sections 364, 365 and 302 in alternative u/Ss. 364/34, 365/34 and 302/34 of the Indian Penal Code and sentencing them each to 10 years RI with fine Rs. 1,000/- 7 years RI with fine Rs. 700/- and, imprisonment for life with fine Rs. 1,000/ respectively. 2. This case relates to kidnapping for ransom and murder of a minor boy Suresh @ Pappu, aged about 10 years. Boy Suresh although belonged to village Harsola was, at the relevant time, together with his sister Ashagiri (PW 6), staying at Ujjain with his maternal uncle Jivanpuri (PW 4), in connection with his studies. House of Jivanpuri is situated at Naga Baba Ki Chal near Metro Cinema Hall. All the three accused persons also resided at Ujjain, and the house of accused Golu @ Rajendra, was situated just in front of the house of Jivanpuri. On 15.4.1996, around 2.00 O'clock in the afternoon, boy Suresh had left his uncle's house on a bicycle belonging to the latter. He, however, did not return home until late in the evening causing concern to his sister Ashagiri. An anonymous phone call was received in the evening by Ashagiri and she was told that her brother has met with an accident and is lying injured near Rekha Fashion Factory. She rushed to the said factory, but Suresh was no where in sight. She returned home and informed on telephone about the aforesaid development to her uncle Jivanpuri (PW 4). Jivanpuri, who was then working in a Bank, rushed back to his home and made frantic search of the missing nephew. After a little later, another telephone call was received, this time by Jivanpuri himself who was informed that Suresh has not met with any accident but his whereabouts can be known from a letter lying near the said Fashion Factory. Jivanpuri accompanied by others, then rushed to the said factory where, in a lane, near the shop of Sunil Rao (PW 3) a motor mechanic, a hand written letter tagged with a piece of cloth, was found lying. In this letter, ransom of Rs. Jivanpuri accompanied by others, then rushed to the said factory where, in a lane, near the shop of Sunil Rao (PW 3) a motor mechanic, a hand written letter tagged with a piece of cloth, was found lying. In this letter, ransom of Rs. 5.00 lacs was demanded for release of the kidnapee boy. Various other details regarding the mode, place and time of payment were also given in the letter and a warning was also recorded not to inform the police about the matter lest it may endanger the life of the boy. After some deliberations it was decided that instead of lodging report at P.S. City Kotwali, having jurisdiction in the matter, a report should be lodged at P.S. Mahakal. Accordingly, a report vide Ex. P-2 was lodged by Sunil at P.S. Mahakal, Ujjain, at 6.40 p.m. The said letter, together with piece of cloth (Article 'A') was also produced at the police station. The papers were later on transferred to City Kotwali, Ujjain, where a formal FIR was registered the same evening at 9.00 p.m. and the investigation followed. 3. Inspector Praveen Thakur (PW 18) visited the house of Jivanpuri and interrogated the inmates including Ashagiri. Ashagiri expressed her doubt about accused Golu @ Rajendra as his behaviour in the previous evening was found to be highly suspicious. In the following morning on 16.4.1996, all the accused-appellants were picked up by police from their respective houses, taken to police outpost Indira Nagar and interrogated. Accused Sanjay gave information (vide Ex. P-9) which led to the recovery of the body of the deceased from a septic tank at Indira Nagar, vide seizure Memo Ex: P-12. Various photographs of the body were also taken. The police conducted inquest u/s 174 of CrPC and got the autopsy of the body performed the same day. The post-mortem examination report Ex. P-22 revealed that the deceased had died of asphyxia due to throttling. 4. On the same day, accused Shailendra gave information vide Ex. P-10 which led to the discovery of a piece of cloth from Sarvodaya Dharamshala, situated at Agar Road, Ujjain, vide seizure Memo Ex. P-14. A seat cover was also recovered from a nearby open place the same day in the wake of information given by accused Golu (vide Memoranda Ex. P-11 and P-16). P-10 which led to the discovery of a piece of cloth from Sarvodaya Dharamshala, situated at Agar Road, Ujjain, vide seizure Memo Ex. P-14. A seat cover was also recovered from a nearby open place the same day in the wake of information given by accused Golu (vide Memoranda Ex. P-11 and P-16). Later in the day, house of accused Sanjay was searched by the police and certain documents containing his handwriting were seized. On 25.4.1996 his specimen writing was also obtained by Inspector Thakur with the previous permission of the Magistrate concerned. On examination of all these documents, including the letter Article 'A', by handwriting Expert, it was confirmed that the letter Article 'A' was written by accused Sanjay. 5. The Police also interrogated several other persons and it was discovered that the deceased was seen last in the company of the accused persons earlier in the afternoon of 15th April, 1996. It was also confirmed that accused Sanjay had made the said anonymous call from a P.C.O. run by Juber Khan (PW 1). The police after other necessary investigation charge sheeted the accused persons for trial. 6. At the trial all the accused persons abjured their guilt and denied all the circumstances appearing against them in the prosecution evidence. They claimed to have been implicated falsely. 7. The prosecution examined as many as 19 witnesses and also proved several documents (Ex. P-l to P-28) in evidence. No evidence was, however, led by the accused persons. The Court below on evaluation of the evidence led by the prosecution, convicted and sentenced the accused-appellants, as aforesaid, thus giving rise to these appeals. 8. We have heard Sarvashri Jaisingh, learned senior counsel appearing with Vivek Singh, Advocate for appellant-Golu.@ Rajendra; G.S. Chouhan, learned counsel for appellant Sanjay; Manoj Soni, learned counsel for appellant Shailendra; and, Girish Desai, learned Dy. Advocate General for respondent-State. 9. It is not disputed before us that boy Suresh who had left his uncle's house in the afternoon of 15th April 1996, did not return home and instead his dead body was found lying in a septic tank, the next day. On post-mortem examination it was confirmed that he died a homicidal death caused by throttling. The developments which followed his depal1ure left no manner of doubt that he was kidnapped for ransom and ultimately murdered. On post-mortem examination it was confirmed that he died a homicidal death caused by throttling. The developments which followed his depal1ure left no manner of doubt that he was kidnapped for ransom and ultimately murdered. There is, however, no direct evidence of any eye-witness either of the kidnapping or of the killing of the boy Suresh and the prosecution case against the appellants is based wholly on circumstantial evidence. The tale-tell circumstances relied upon by the prosecution against the accused persons were: one -- recovery of the dead body of kidnapee boy on 16.4.1996 from a septic tank in the wake of information allegedly given by accused Sanjay; two -- Expert's Report showing that the letter (Article -- 'A') of demand of ransom was written by accused Sanjay; evidence regarding making of call by this very accused Sanjay from Public Booth of Juber Khan; three recovery of pieces of cloth at the instance of accused appellants which was allegedly used in throttling the deceased four -- recovery of a cycle seat cover at the instance of accused Golu @ Rajendra; and, five -- that the kidnapee boy was last seen in the company of the accused-appellants in the afternoon of 15th April, 1996. 10. The law regarding circumstantial evidence is well settled Circumstantial evidence must be complete and conclusive. The circumstances from which a conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the proved circumstances should be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence. In cases based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to have place of legal proof and has to be watchful to avoid. the danger of being swayed by emotional considerations, however strong they may be, to take place of proof. [see: Balvinder Singh v. State of Punjab ( AIR 1996 SC 607 )]. 11. We shall now, therefore, proceed to examine the prosecution evidence to find out as to whether the circumstances put forth by the prosecution are established fully and fulfill the test laid down by the Apex Court in the case of Balvinder Singh (supra). 12. [see: Balvinder Singh v. State of Punjab ( AIR 1996 SC 607 )]. 11. We shall now, therefore, proceed to examine the prosecution evidence to find out as to whether the circumstances put forth by the prosecution are established fully and fulfill the test laid down by the Apex Court in the case of Balvinder Singh (supra). 12. Two of the circumstances i.e., regarding last seen and recovery of one piece of cloth each from or at the instance of the accused- appellants, are same or common against all of them and we, therefore, proceed to consider the same first. 13. As regards last seen, Ravi Sharma (PW 10) has been examined to testify that on a day earlier to the recovery of the body of deceased boy Suresh, he had seen the deceased going on a bicycle with accused Rajendra. He further deposed that other two accused persons Sanjay and Shailendra were also seen going on another bicycle. He explained that he knew Suresh and accused Rajendra since before the incident and although the two other accused were not known to him, he could identify them as on the next day their photographs had appeared in a local newspaper carrying the news of kidnapping and murder of Suresh. 14. We have very carefully gone through the deposition of this witness Ravi Sharma and we are convinced that he is a procured witness. He was examined by the police on 11.5.1996 i.e., after 26 days of the incident and as per prosecution's own showing, this witness did not disclose the aforesaid fact to anyone before that date i.e., 11.5.1996. As admitted by him, he did not know accused Sanjay and Shailendra who are total strangers to him and as per his own saying they were going separately on a different bicycle. He was also not put to any test identification of these two accused persons. Under the circumstance, his evidence against these two accused persons appeared highly unbelievable as he had no prior acquaintance with either of these two accused and it is anybody's guess as to how it was possible for him to remember their faces for all those 26 days, when, he, for the first time, disclosed the aforesaid fact of last seen to the police. His not disclosing the aforesaid fact instantly to the police or to the uncle of the deceased and keeping mum for long 26 days, clearly go to show that he was a got up witness. When questioned about this unnatural behaviour on his part, he tried to get away by saying that he had in fact told everything to Jivanpuri the next day of his noticing the deceased going with the accused persons. However, Jivanpuri does not say so. Nor this fact is mentioned by witness Ravi in his statement to the police (vide Ex. D-5). In the statement Ex. D-5, he furnished altogether a different explanation that he had not disclosed this fact to anyone as he did not want to be dragged in Court proceedings. However, before the Court he completely disowned this part of his police statement and asserted that he did promptly inform Jivanpuri about the said development and had also accompanied the latter to the Police Station, but the police turned him away saying that he would be called later, if needed. His entire testimony is nothing but a bundle of lies and deserved wholesale rejection. 15. Recovery/discovery of pieces of clothes allegedly made at the instance of the accused persons also leads to nothing, rather it only showed the artificiality of the prosecution case as if accused persons after throttling the deceased to death, had shared amongst themselves the piece of cloth allegedly used by them in commission of the crime and preserved the same to be handed over to the police. This apart, there is no evidence on record that the same cloth consisted of these pieces was used in commission of the crime. That being so, the said disclosure by the accused persons did not fall within the preview of Sec. 27 of the Evidence Act, rather the evidence in this regard was hit by Sec. 26 of the Act and could not be pressed in service to connect the appellants with the crime in question. 16. As against accused Golu @ Rajendra, one more circumstance put forth by the prosecution and relied upon by the Court below is recovery of a cycle seat cover in the wake of information given by this accused in police custody on 16.4.1996 (vide Memoranda Ex. P-11 and P-6). The seat cover is said to have been subsequently identified by Ashagiri (PW 6). P-11 and P-6). The seat cover is said to have been subsequently identified by Ashagiri (PW 6). The recovery is deposed by Jiranprasad (PW 5) and Inspector Praveen Thakur (PW 18) who are witnesses of all the recoveries/discoveries pertaining to this case. At the first place the information (vide Ex. P-11) was regarding a bicycle not of any seat cover, and secondly, this seat cover was recovered from an open place accessible to all. Under these circumstances, it cannot be said that the seat cover was recovered at the instance of accused Rajendra or that it was within his exclusive and conscious possession. This recovery cannot be also, therefore, termed as an incriminating circumstance against the accused. 17. This accused Rajendra resided in front of house of Jivanpuri and it is stated by girl-Ashagiri that on the relevant evening following Suresh's departure, this accused was seen staring at her uncle's house and on seeing her (Ashagiri) he (accused Rajendra) disappeared in a huff. We are afraid, this is no circumstance much less an incriminating one to even connect remotely the accused with the crime. As already cautioned, we cannot allow a mere suspicion to take place of legal proof. 18. The remaining circumstances i.e., the recovery of the body of the deceased, expert report regarding authorship of letter of demand of ransom (Article - 'A') as also the evidence regarding making of anonymous calls at the residence of the deceased, relate to accused Sanjay only. As against other two accused Shailendra and Rajendra therefore, there remains absolutely no evidence to connect them with the crime in question and they are entitled to be acquitted. 19. Coming to the recovery of the body of the deceased, the prosecution evidence in this regard consists of the testimony of Inspector Praveen Thakur (PW 18) and attesting witness Jivanprasad (PW 5). Inspector Thakur has testified that on 16.4.1996, accused Sanjay, in police custody, made a disclosure that he has thrown the body of deceased boy Suresh in a septic tank at Indore Nagar, vide Memo Ex. P-9. He further deposed that he then took the accused together with panch witnesses to the septic tank where with the help of the employees of the Municipal Corporation, the body of the deceased was taken out from the tank and seized, vide seizure memo Ex. P-9. He further deposed that he then took the accused together with panch witnesses to the septic tank where with the help of the employees of the Municipal Corporation, the body of the deceased was taken out from the tank and seized, vide seizure memo Ex. P-12, photographs of the dead body were also got taken by police photographer Martin Ikka (PW 12). 20. Jivanprasad (PW 5) the only panch witness examined by the' prosecution to depose of the said disclosure, however, in his statement before the Court attributed the said discovery to all the three accused-appellants. He, in para 3 of his deposition, clearly stated that on interrogation all the three appellants informed the police that the dead body of the deceased is lying in a septic tank at Indore Nager. HINDI The other panch witness in whose presence the said disclosure and recovery was made, has not been examined by the prosecution which has also not challenged the aforesaid statement made by Jivanprasad. So if we go by the statement of Jivanprasad, then it cannot be said that it was accused Sanjay and I Sanjay alone who knew or discovered the body of the deceased. However, I such a joint disclosure, we are afraid is not known to our criminal jurisprudence and no single person can be made responsible on the basis I of such a joint disclosure made by more than one persons. 21. In Abdul Hafeez ( AIR 1983 SC 367 ), the Apex Court held: "The evidence that one accused along with all others gave information leading to recovery of robbed article and the evidence of receiver of robbed property that accused 1 to 3 sold him ... ... ... ... ... do not present any incriminating material against the accused. Such mode of recording evidence was depricated." 22. The Division Bench of this Court in Harish Kumar [II (2000) CCR 403 (MP)], following the Supreme Court decision in Abdul Hafeez (supra), almost in a similar fact situation where joint disclosure of two accused persons led to the recovery of the dead body of a kidnapee boy, held that section 27 does not contemplate joint discovery by two or more accused persons. 23. 23. In another case of Lachhman ( AIR 1952 SC 167 ), the Apex Court clarified that even if the rule of joint disclosure is to be applied in a case, then it is only the information which is first in time would be admissible. However, in the instant case, it is not clear that which of the three accused persons first gave information regarding body of the deceased. Evidence of Jivanprasad is wholly silent about it while Inspector Thakur gives altogether a different story and attribute the recovery to accused Sanjay only. It is true that memoranda of information allegedly given by the three accused persons, Ex. P-9, P-W and P-11 are not in tune with the statement made by Jivanprasad and it is only in the memorandum Ex. P-9 that the fact of disclosure regarding body of the deceased is contained and the same is attributed to accused Sanjay, However, it is too well settled that it is not the contents of any such memorandum but what the witnesses state before the Court, is the evidence admissible u/s 27 of the Evidence Act which is by way of an exception to Ss. 25 and 26 of the Act. 24. The evidence regarding information and discovery of the body of the deceased is doubtful even otherwise. Constable Martin Ikka (PW 12) who was called by the Investigating Officer to take photographs of the body of the deceased, clearly admitted that he was called at the Police Station early in the morning around 7.00 O'clock, that accused San jay was also present there and that he and accused San jay were with the poi ice party right from 7.00 a.m. to 10.00 a.m. going from one place to another in a mobile van until finally the body was found in a septic tank. If we go by the evidence of this witness Martin Ikka, then the entire story that accused Sanjay made the said disclosure at the police station, at 11.00 a.m. as disclosed in the memorandum Ex. P-9, is rendered doubtful. In fact the very arrest of this accused Sanjay is shown to be at 10.30 a.m. which is again not correct. It appears that accused San jay was already in police custody since much before his alleged arrest and preparation of the memorandum Ex. P-9, is rendered doubtful. In fact the very arrest of this accused Sanjay is shown to be at 10.30 a.m. which is again not correct. It appears that accused San jay was already in police custody since much before his alleged arrest and preparation of the memorandum Ex. P-9 and the possibility that the police was already in know of the fact about the body of the deceased, cannot be ruled out. In any case the said recovery of the body cannot be attributed to this accused and he cannot be held responsible for the crime on that count. 25. As regards the expert evidence as to the authorship of the letter Article - 'A', Inspector Thakur (PW 18) has deposed that he, firstly on 16.4.1996 seized vide seizure memo Ex. P-15, some loose papers contained in register from inside the house of accused Sanjay and thereafter again on 25.4.1996, with the previous permission of the Magistrate obtained specimen hand-writing of accused Sanjay at Bherugarh Jain, Ujjain. He further deposed that all these documents together with disputed letter Article -- 'A' were sent to P.H.Q. Bhopal for expert examination. Mahendrasingh (PW 19) the Hand-Writing Expert, Government of Madhya Pradesh, Bhopal, has testified to have examined the aforesaid documents and came to the conclusion that the writings on all those documents were of one common person, vide report Ex. P-28. 26. First we take up the seizure of said loose papers from the house of the accused. On this point beyond testimony of Inspector Thakur no other evidence could be adduced by the prosecution. Although in the seizure memo Ex. P-15, presence of two panch witnesses including Jivanprasad (PW 5) is mentioned, but while said Jivanprasad has not uttered a single word in this regard in his deposition before the Court, the other witness of the seizure has not been examined in the evidence. There is also no evidence as to the ownership of that house wherefrom the papers were seized. Even Inspector Thakur has not stated that the said house was in exclusive and conscious possession of accused Sanjay. The said writing which was considered as standard writing by the expert cannot be, therefore, attributed to this accused Sanjay. 27. As regards the taking of specimen writing, the Magistrate while granting permission did not hear the accused. The permission was accorded on mere asking of the police. The said writing which was considered as standard writing by the expert cannot be, therefore, attributed to this accused Sanjay. 27. As regards the taking of specimen writing, the Magistrate while granting permission did not hear the accused. The permission was accorded on mere asking of the police. Even the specimen writing was not obtained in presence of the Magistrate. Under the circumstance, it cannot be said that this specimen writing was given by the accused voluntarily. 28. This part of the prosecution evidence suffers with yet another legal infirmity. No enquiry or trial was pending before the Magistrate on the date when specimen writing was permitted to be taken from the accused by the Magistrate. The case was still under investigation. Under the circumstance, as held by the Apex Court in Sukhvinder [ (1994) 5 SCC 152 ] and reiterated in Amarjeet [ (1998) 8 SCC 613 ]. "the specimen writing of the accused could not, therefore, be made used of during the trial and the report of the hand-writing expert, .... ............ is rendered of no consequence at all and could not be used against the accused to connect him with the crime." Similar view was taken by the Apex Court earlier in the case of Ram Babu ( AIR 1980 SC 791 ) that Court cannot take specimen writings at the stage of investigation. 29. It is now too well settled that handwriting expert's opinion is never a substantive piece of evidence and can at best be used for corroboration. The Apex Court in Magan 1977 CrLR (SC) 130, cautioned: "It is now too well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of the hand writing expert. There is a prefusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law." 30. It will be thus seen that the expert evidence in the case cannot be pressed in service to connect the appellant with the crime. Even otherwise there being no other substantive evidence against the appellant, this expert evidence is of no consequence. 31. This leaves us only with the evidence of Juber Khan (PW 1) regarding making of calls by accused Sanjay. Even otherwise there being no other substantive evidence against the appellant, this expert evidence is of no consequence. 31. This leaves us only with the evidence of Juber Khan (PW 1) regarding making of calls by accused Sanjay. However, this witness has stated nothing beyond making a vague statement that Sanjay had made certain calls from his P.C.O. When the said calls were made and what was the text of those calls, it not clear from his evidence. No document is furnished by this witness to pin-point the date and time of making of the said calls. This evidence is also, therefore, of no consequence. 32. From the foregoing discussion it, therefore, inevitably follows that the circumstances as propounded by the prosecution could not be established fully and what is proved could not connect any of the accused appellants with the crime in question. 33. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the Courts have hardly any other yardstick or material. to adjudge the guilt of the person arraigned as accused. It is no doubt true that wrongful acquittals are undersirable, but, as cautioned by the Apex Court in Kali Ram ( AIR 1973 SC 2773 ), "much worse, however, is the wrongful conviction of an innocent person". We cannot allow ourselves to be swayed by emotional considerations nor a suspicion, however strong it may be, to take place of legal proof. In the instant case, the acquittal of the appellants is inevitable. 34. In the result all these appeals succeed and are allowed. Impugned conviction and sentence passed against appellants are set-aside and they all are acquitted. Appellants are in jail. They be set at liberty forthwith, if not required in any other case. 35. This judgment be retained in Criminal Appeal No. 1032/1997 and a copy each be filed in other Appeals (Cr. A. No. 1186/1997 and 1293/1997).