Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 253 (PNJ)

Ravinder Kumar alias Meenu v. State of Punjab

2012-02-14

RANJAN GOGOI, SURYA KANT

body2012
JUDGMENT Mr. Ranjan Gogoi, C.J.: - This appeal is directed against the judgement and order dated 18.07.2005 passed by the Additional Sessions Judge, Amritsar in Sessions Case No. 86 dated 24.11.2004. By the aforesaid judgement and order, the accused/appellant has been convicted under Sections 364-A, 302 and 201 of the Indian Penal Code. While the accused/appellant has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for a further period of five months for the offence under Section 364-A of the Indian Penal Code, he has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the Indian Penal Code. In so far as the offence under Section 201 of the Indian Penal Code is concerned, the accused/appellant has been sentenced to undergo rigorous imprisonment for three years alongwith fine of Rs. 500/-, in default, rigorous imprisonment for a further period of three months. All the sentences have been ordered to run concurrently against the accused/appellant. 2. The short case of the prosecution is that PW1, Harpreet Kaur, wife of Jaswinder Singh, resident of village Malmohri, Tehsil Tarn Taran, District Amritsar made a statement before PW9 Naurang Singh, Station House Officer, Police Station Sadar, Tarn Taran in the morning of 23.08.2004. The said statement (Ex. PA) which was signed by PW1 and attested by PW9 was the basis of FIR dated 23.08.2004 registered in respect of the incident in question. According to the prosecution, PW1, in her statement (Ex. PA), stated that on 23.08.2004, she woke up at about 5.00 AM in the morning. At that time, her child was sleeping on the bed. PW1 came back to the room for fetching milk from the refrigerator for preparing tea. At that time, she again found her son on the bed. According to PW1, at that time, her father-in-law had left for the gurdwara and had closed the outer gate. PW1, in her statement, had further stated that when she came back to the room at about 5.15 AM to fetch the feeding bottle of her son, she could not find her son on the bed. She also saw the outer gate partially open. PW1, in her statement, had further stated that when she came back to the room at about 5.15 AM to fetch the feeding bottle of her son, she could not find her son on the bed. She also saw the outer gate partially open. According to PW1, she made a frantic search of the house and the neighbourhood and thereafter called the younger brother of her husband and his wife who used to reside in the same house. A little later, her father-in-law came back from the gurdwara. When all attempts to locate the child failed they proceeded towards the Police Station to report the matter. On the way, in the bus stop at Naurangabad, Police party headed by PW9 Naurang Singh, Station House Officer, met them and at that place PW1 made her statement which was counter-signed and sent to the Police Station for registration of the FIR (Ex. PJ). 3. After registration of the FIR, investigation of the case started and rough site plan (Ex. PK) and sketch (Ex. PG) were prepared by PW8 Rishi Ram, Draftsman. According to the prosecution, on 24.08.2004, Pargat Singh, PW2 (grand-father of the missing child) received a telephone call from Ghanaur, Haryana demanding ransom money. The call was made from telephone No. 0130-2460831 which is the allotted number of a PCO booth. In the course of the investigation, two bills Ex. PL and Ex. PM in respect of the calls made from the PCO to telephone No. 0185-2282195 installed in the house of another accused, namely, Malook Singh were seized. The prosecution had alleged that the aforesaid phone calls were made at the instance of the present accused/appellant, Ravinder Kumar, who was employed as a servant in the house of co-accused Malook Singh. Though frantic efforts were made by the prosecution to arrest Ravinder Kumar, he was not available until 31.08.2004 on which date the accused/appellant Ravinder Kumar alongwith his brother Raunik Singh allegedly met PW3, Dara Singh, Member of the Gram Panchayat of the village and made an extra-judicial confession admitting that they had kidnapped the boy and while holding his mouth to prevent him from shouting, the boy had died. On the aforesaid basis, both the accused/appellant and his brother were arrested and offences under Sections 302 and 201 of the Indian Penal Code were added to the offences already alleged in the FIR. On the aforesaid basis, both the accused/appellant and his brother were arrested and offences under Sections 302 and 201 of the Indian Penal Code were added to the offences already alleged in the FIR. Furthermore, according to the prosecution, on interrogation, Ravinder Kumar made a statement that he had kept the dead body concealed in a pit near the wall in the Haveli of the accused Malook Singh and that he could help the Police recover the same. The aforesaid statement of the accused/appellant which was recorded was attested by PW2 and others. A Police party alongwith PW7 Parmanand, Naib Tehsildar, who was so deputed by the Sub Divisional Magistrate went with the accused/appellant to the Haveli of Malook Singh. At the spot, the accused/appellant, in the presence of witnesses, recovered the bones and skull of a dead body by digging the pit. Alongwith the bones and skull, a T-shirt (orange colour) and a thread (tarhagi) was also recovered. The aforesaid items i.e. T-shirt and tarhagi were identified by PW1, the mother of the child to have been worn by the deceased boy. 4. The further case of the prosecution is that the accused Malook Singh and his wife Kulbir Kaur made an extra-judicial confession of their guilt on 01.09.2004 before Manjinder Singh (PW4). In the aforesaid confession, the two accused, according to the prosecution, admitted that the accused/appellant Ravinder Kumar who was their servant had stated before them of the kidnapping and death of the boy and the burial of the body in the Haveli. On the basis of the aforesaid confessional statement, Malook Singh and his wife Kulbir Kaur were arrested. 5. On completion of the investigation of the case, challan was filed in the Court against the accused/appellant and three other accused, namely, Raunik Singh brother of the accused/appellant, Malook Singh and Kulbir Kaur. All the offences alleged being exclusively triable by the Court of Sessions, the learned Sub Divisional Judicial Magistrate, Tarn Taran, by order dated 10.11.2004 committed the case for trial to the Court of the Sessions at Amritsar. Thereafter, the case was endorsed to the file of the learned Additional Sessions Judge for disposal who framed charge against the accused/appellant under Sections 201, 364-A and 302 of the Indian Penal Code. In so far as the other accused are concerned, charge under Section 201 of the Indian Penal Code was framed. Thereafter, the case was endorsed to the file of the learned Additional Sessions Judge for disposal who framed charge against the accused/appellant under Sections 201, 364-A and 302 of the Indian Penal Code. In so far as the other accused are concerned, charge under Section 201 of the Indian Penal Code was framed. All the accused pleaded not guilty to the charges framed and claimed to be tried. 6. In the course of the trial, eleven witnesses were examined by the prosecution and none by the defence. The statement of the accused were recorded under Section 313 of the Code of Criminal Procedure. Thereafter, at the conclusion of the trial while the accused/appellant, Ravinder Kumar, has been found guilty under Sections 201, 364-A and 302 of the Indian Penal Code and sentenced as aforesaid, the other three accused persons have been found guilty only of the offence under Section 201 of the Indian Penal Code. In the present appeal, naturally, the validity of the conviction and sentence imposed on the other accused is not an issue and it is the legality of the conviction of the accused/appellant Ravinder Kumar and the sentence(s) imposed on him which alone would require our consideration. 7. For the purposes of discussion that will follow, it would be advantageous, at this stage, to take note of two vital facts which appear from the record of the case. On 15.09.2004, the investigating agency filed an application before the learned Sub Divisional Judicial Magistrate, Tarn Taran seeking orders for taking blood samples of PW1, mother of the victim, for the purpose of DNA test so as to ascertain the identity of the bones recovered. The learned Sub Divisional Judicial Magistrate passed orders on the said application on 18.09.2004 directing the SMO, Civil Hospital, Tarn Taran to do the needful if approached by the Police in the matter. On the said day, blood sample of PW1 was taken under her signature which was counter-signed by the learned Sub Divisional Judicial Magistrate, Tarn Taran. What happened thereafter is not indicated by the records. The report of DNA test had not been exhibited by the prosecution. All the said facts can reasonably lead to the reason that the matter relating to DNA test was not brought to its logical conclusion by the prosecution. What happened thereafter is not indicated by the records. The report of DNA test had not been exhibited by the prosecution. All the said facts can reasonably lead to the reason that the matter relating to DNA test was not brought to its logical conclusion by the prosecution. Notwithstanding the above facts, which are proved by the records of the case, PW9 in his evidence had deposed that no DNA test was attempted and in fact the learned trial Court in its impugned order had understood the said evidence in the light of the fact that the body of the deceased child was identified by his mother PW1 and, therefore, the DNA test was not insisted upon. 8. The second significant fact that must be noticed is that after closure of the evidence of the prosecution, on the basis of an application filed by the Public Prosecutor, the report of the Forensic Science Laboratory in respect of the bone samples allegedly of the deceased child which were sent for analysis was brought on record and marked as Ex. PZ. In the said report, it is mentioned that though the bones were human bones, the age of the bones could not be determined. 9. It would now be appropriate to briefly notice the evidence tendered by the prosecution in this case. PW1, Harpreet Kaur, is the mother of the deceased child. In her deposition, she had stated the circumstances in which her infant son went missing in the early morning of 23.08.2004 and the attempts to trace the child as narrated in the statement (Ex. PA) made before PW9 on the basis of which the FIR in the case was lodged. In her cross-examination, PW1 had categorically stated that till the wearing apparels of the child were recovered they had no information with regard to the whereabouts of the child. 10. PW2, Pargat Singh, is the grand-father of the child in whose house the child was living alongwith his mother. He had corroborated the statement made by PW1 in her deposition. However, in contradiction to what PW1 had stated, PW2 had deposed that on the third day of the incident, a telephone call was received in the house of the accused Malook Singh. Accused Kulbir Kaur attended the telephone and PW2 was called to answer the same. The person at the other end demanded a ransom of Rs. However, in contradiction to what PW1 had stated, PW2 had deposed that on the third day of the incident, a telephone call was received in the house of the accused Malook Singh. Accused Kulbir Kaur attended the telephone and PW2 was called to answer the same. The person at the other end demanded a ransom of Rs. 20 lacs for the return of the child and further stated that he was speaking from Ganaur. 11. PW3, Dara Singh, is the Member of the Panchayat of the village. According to this witness, after five/six days of the date of the incident, accused/appellant Ravinder Kumar and Raunik Singh came to him and informed him that the Police were after them on account of the kidnapping of the child. According to PW3, both the accused admitted before him that they had kidnaped the child for ransom and when they had placed their hands on the mouth of the child to prevent him from screaming he had died. The two accused reportedly told PW3 that they had kept the child buried in the Haveli of Malook Singh in the pit. They also admitted to making a telephone call to the house of Malook Singh and thereafter speaking to Pargat Singh demanding a ransom of Rs. 20 lacs. 12. PW4, Manjinder Singh, is the son of PW3, who used to live separately in Ludhiana. According to this witness, after about a week of the incident when he had come to the village, accused Malook Singh and Kulbir Kaur admitted before him that their servant Ravinder Kumar (accused/appellant) had kidnapped the child and had buried him in their Haveli. Thereafter, PW4 handed over both the accused to the Police. However, from the cross-examination of this witness, it transpires that none of the statements made by him on oath were recorded by the Police in the course of the investigation. 13. PW5 is Head Constable Vinod Kumar who took the photographs of the place of occurrence, whereas, PW6 is a Police Constable Balwinder Singh who handed over the special report of the case to the Illaqa Magistrate in the afternoon of 23.08.2004. 14. PW7, Parmanand, is the Naib Tehsildar who was asked by the Sub Divisional Magistrate to accompany the Police party to effect the recovery of the dead body on the basis of the statement made by the accused/appellant Ravinder Kumar. 15. 14. PW7, Parmanand, is the Naib Tehsildar who was asked by the Sub Divisional Magistrate to accompany the Police party to effect the recovery of the dead body on the basis of the statement made by the accused/appellant Ravinder Kumar. 15. PW8, Rishi Ram, is the draftsman who had prepared the sketch plan, whereas PW9, Naurang Singh, is the Investigating Officer of the case. Apart from giving the details of the investigation, PW9 in his deposition had stated that the phone call demanding the ransom amount was received in the phone installed in the house of one Gulzar Singh. PW9 also stated that the investigating agency did not file any application for taking of blood samples for DNA testing of the bones recovered. 16. PW10, Ajmer Singh, is a Police Constable who had proved the evidence tendered by him on affidavit (Ex. PW). In Ex. PW, this witness had made statements with regard to deposit of the case property with him by PW9 Naurang Singh i.e. a parcel containing the bones, skull etc. 17. Similarly, PW11, Balkar Singh, Constable has proved the evidence tendered by him on affidavit (Ex. PX) which is with regard to sending of the case property i.e. clothes, bones, skull etc. to the State Forensic Science Laboratory for analysis. The reports submitted by the Forensic Science Laboratory in respect of the skull, wearing apparels and the bones allegedly recovered from the pit at the instance of the accused/appellant Ravinder Kumar were received by the prosecution after filing of the challan in the case and, therefore, the same were brought on record as Ex. PY and Ex. PZ by the Public Prosecutor with due permission of the Court. 18. A reading of the evidence of the prosecution witnesses, the core of which have been narrated above, indicates that there is no eyewitness to the occurrence nor there is any direct evidence to show the involvement of the accused/appellant in the offences alleged. On the contrary, the prosecution case rests entirely on circumstantial evidence. 18. A reading of the evidence of the prosecution witnesses, the core of which have been narrated above, indicates that there is no eyewitness to the occurrence nor there is any direct evidence to show the involvement of the accused/appellant in the offences alleged. On the contrary, the prosecution case rests entirely on circumstantial evidence. The law relating to proof of a criminal charge by means of circumstantial evidence is fairly well settled and can be summarized by stating that only in a situation where the circumstances alleged by the prosecution are fully proved and established and such proved and established circumstances point to only one direction i.e. the involvement of the accused in the crime alleged, conviction for the offence alleged will be permissible in law. A recent decision of the Apex Court in Gamparai Hrudayaraju Vs. State of A.P., [2009(5) Law Herald (SC) 3551] : AIR, 2009 (S.C.), 2364, para 17 may be usefully referred to in this connection:- “A reference may be made to a later decision in Sharad Birdhichand Sarda V. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:- (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ 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 and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so 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 probability the act must have been done by the accused.” 19. It is in the context of the above principles of law that the Court will now have to be proceed to determine what are the circumstances relied upon by the prosecution in the present case; whether the same have been conclusively proved and established by the prosecution and whether the said circumstances give rise to a chain of events leaving “no reasonable ground for the conclusion consistent with the innocence of the accused”. 20. From the evidence of the prosecution witnesses, the order of the learned trial Court as well as the arguments advanced in the appeal, it appears that three circumstances have been relied upon by the prosecution to prove and establish the case against the accused/appellant. The said circumstances may be set out as follows:- (i) The making of ransom calls by the accused/appellant from the PCO in Ganaur to the telephone installed in the house of accused Malook Singh. (ii) Recovery of the bones and the clothes of the child at the instance of the accused/appellant. (iii) The extra-judicial confession allegedly made by the accused/appellant to PW3 Dara Singh. 21. In so far as the ransom calls allegedly made by the accused/appellant is concerned, PW2 and PW3 in their deposition have mentioned that the said calls were received in the house of accused Malook Singh where the accused/appellant Ravinder Kumar was working as a servant; that on receipt of the call, PW2, Pargat Singh, was asked to come and attend the same and further that in the course of the conversation that took place, the accused/appellant demanded a ransom of Rs. 20 lacs. On the other hand, PW9, the Investigating Officer of the case, in his deposition, had stated that the call was received in the house of one Gulzar Singh and the caller identification facility on the said telephone indicated that the call was received from Telephone No. 2460831. According to PW9, that number was traced as belonging to a STD/PCO booth at Ganaur. Two bills were seized from the owner of the PCO booth bearing Nos. 1984 and 1985 dated 24.08.2003. The said bills were exhibited in the trial Court as Ex. PL and Ex. PM. The seizure memo in respect of the aforesaid bills is Ex. PN. The said documents indicate that the called number is 0185- 2282195. Two bills were seized from the owner of the PCO booth bearing Nos. 1984 and 1985 dated 24.08.2003. The said bills were exhibited in the trial Court as Ex. PL and Ex. PM. The seizure memo in respect of the aforesaid bills is Ex. PN. The said documents indicate that the called number is 0185- 2282195. No attempt was made by the prosecution to explain the aforesaid contradiction in the evidence of PW2 and PW3 on the one hand and PW9 on the other. Gulzar Singh was not examined. No evidence was led to show who was the subscriber of Telephone No. 0185-2282195 on which number the alleged ransom calls were received. 22. The above facts, in our considered view, throw a fair amount of doubt with regard to the authenticity of the prosecution case in so far as the issue of making of ransom calls is concerned. The evidence on record not having fully established the aforesaid aspect of case of the prosecution, we are inclined to take the view that the first circumstance alleged against the accused/appellant has not been conclusively proved in the present case. 23. Coming to the second circumstance i.e. recovery of the dead body and the wearing apparels of the deceased, we have already indicated in an earlier part of this order that though blood samples of PW1 were taken on the orders of the Court for DNA analysis, what happened to the said process has not been brought on record by the prosecution. No DNA report has been exhibited by the prosecution. In fact, according to PW9, no prayer was made by the prosecution before the Court for taking of samples of blood of PW1 for the purpose of DNA analysis. The said fact has been proved to be incorrect by a mere reference to the application dated 15.09.2004 filed by the prosecution for taking of blood samples for DNA analysis; the order of the learned Sub Divisional Judicial Magistrate, Tarn Taran dated 18.09.2004 allowing the said prayer of the prosecution and the memo showing taking of samples of blood of PW1 signed by PW1 and counter-signed by the Sub Divisional Judicial Magistrate, Tarn Taran. 24. The incident allegedly took place on 23.08.2004 and the dead body was recovered on 31.08.2004 i.e. after eight days. 24. The incident allegedly took place on 23.08.2004 and the dead body was recovered on 31.08.2004 i.e. after eight days. The decomposition of the body buried under the earth within such a short period of time is unusual and the prosecution has offered no explanation in this regard. Even the age of the victim whose bones were allegedly recovered and sent to the Forensic Science Laboratory was not determined by the said laboratory as clearly mentioned in Ex. PZ. In such circumstances, the recovery of the wearing apparels of the deceased child alongwith the bones, though significant, would not clinch the issue in favour of the prosecution. We are, therefore, inclined to take the view that, in the present case, the prosecution has failed to establish that the pieces of bones recovered belonged to the deceased child. Accordingly, we have no option but to hold that the second circumstance alleged against the accused/appellant has not been conclusively proved by the prosecution. In this regard, we have further noticed that the alleged recovery of the bones had not been made in the presence of any independent witness and though PW7, Parmanand, Naib Tehsildar is claimed by the prosecution to have joined the recovery party, there is nothing on record to show that PW7 was actually deputed by the Sub Divisional Magistrate for the aforesaid task, as claimed by the prosecution. 25. In so far as the third circumstance i.e. alleged extra-judicial confession made by the accused/appellant to PW3 is concerned, it will be suffice to say that an extra-judicial confession is a very weak type of evidence and the Courts have always insisted on corroboration of such evidence. No corroboration, in the present case, is available. That apart, the Courts have always insisted that the maker of the alleged confession and the person before whom it is made should have some kind of a relationship which would inspire confidence in the maker of the confession in the person before whom the same is made. In the present case, PW3 and the accused/appellant did not share any such relationship. The alleged extra-judicial confession is, therefore, open to serious doubt. Even otherwise, in the absence of any corroboration, we do not consider it prudent to act upon the said extra-judicial confession to determine the guilt of the accused/appellant. 26. In the present case, PW3 and the accused/appellant did not share any such relationship. The alleged extra-judicial confession is, therefore, open to serious doubt. Even otherwise, in the absence of any corroboration, we do not consider it prudent to act upon the said extra-judicial confession to determine the guilt of the accused/appellant. 26. The net result of the above discussion is that the prosecution, in the present case, has failed to pass the first basic test to enable us to weigh the circumstantial evidence on which the prosecution relies in support of its case. None of the circumstances alleged against the accused/appellant has been conclusively proved by the prosecution. We, therefore, have to hold that the conviction of the accused/appellant is not legally tenable and the same has to be set aside. We, accordingly, allow this appeal; set aside the judgement and order dated 18.07.2005 passed by the Additional Sessions Judge, Amritsar in Sessions Case No. 86 dated 24.11.2004 and the sentence awarded to the accused/appellant under Sections 364-A, 302 and 201 of the Indian Penal Code and acquit him of the charges levelled. The accused/appellant be set at liberty forthwith. ---------0.B.S.0------------