Sunday, 4 December 2016

Whether joint disclosures by accused is admissible in evidence as per S 27 of evidence Act?

Learned counsel has tried to assail the prosecution case on one more ground by relying on the case of Abdul Hafeez v. State of A.P. : MANU/SC/0091/1982 : (1983) SCC 143 : (MANU/SC/0091/1982 : AIR 1983 SC 307) and has challenged the prosecution case about recovery of dead body at the instance of appellants by haranguing that it was a joint disclosure which is not admissible.
69. There appears no force in the aforesaid arguments.
70. In State (NCT of Delhi) v. Navjot Sandhu : MANU/SC/0465/2005 : (2005) 11 SCC 600 : (AIR 2005 SC 3820) the Hon'ble Supreme Court has laid down the law as under:
"Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, perse, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27."
71. In paragraph 146 of the aforesaid judgment, the Apex Court has discussed the case of Mohd. Abdul Hafeez v. State of A.P.; MANU/SC/0091/1982 : (1983) 1 SCC 143 : (AIR 1983 SC 367)(supra) cited by learned counsel for the appellants and has held that:
"there is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law."
72. Accordingly we do not find any illegality in the admissibility of joint disclosure statement by the appellants in this case specially in view of the fact that the dead body along with other incriminating articles and the 'aari' used as weapon of murder have been recovered by the police after such disclosure.
73. The Apex Court in the case of A. N. Venkatesh and another v. State of Karnataka; MANU/SC/0468/2005 : 2005 SCC (Cri) 1938 : (AIR 2005 SC 3809) has held that even if the disclosure statement is held to be not admissible under Section 27 due to some reason, still it is relevant under Section 8 of the Evidence Act. The evidence of the circumstances, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found is admissible under Section 8 irrespective of the fact whether the statement made by the accused falls within the purview of Section 27 or not. Even if, the disclosure statement is held to be not admissible under Section 27 of Evidence Act, still it is relevant under Section 8 of Evidence Act.
IN THE HIGH COURT OF ALLAHABAD
Criminal (Capital) Appeal No. 962 of 2007
Decided On: 22.01.2016
Vikash Sharma
Vs.
 State of Uttar Pradesh
Coram:B.K. Narayana and Vijay Lakshmi, JJ.
Citation: 2016 CRLJ(NOC)328 KAR

1. Both these criminal appeals, arising out of the same judgment and order dated 1.2.2007 passed by Additional Sessions Judge (F.T.C. 1st), Muzaffar Nagar in S.T. No. 184 of 2004 (State of U.P. v. Rajesh Saini and others), were connected vide order dated 13.2.2007 of this Court and are hereby decided by this common judgment. The facts in brief, if the case of the prosecution were true, reveal the tragic case of one young boy Abhishek alias Lovey, who was kidnapped for ransom and was chopped off into two parts by the accused appellants, one of whom (appellant - Vikas Sharma) the boy used to call 'uncle'. After his murder the accused appellants buried both those parts separately into the sugarcane fields.
2. The brief facts of the case as unfolded during trial are that on the fateful day i.e. 27.11.2003 the father of the deceased boy - informant Pradeep Kumar Garg, who is a practicing advocate in Tehsil Court, Jansath, district Muzaffar Nagar, had gone to tehsil Jansath for his work leaving his wife, daughter and son, deceased Abhishek, at his home. At about 3.30 p.m. his wife rang him up and informed that just after he had left, accused Vikas Sharma, (who was a friend of Pradeep Kumar's younger brother Manoj Garg and was working as a typist of Tehsil Court Jansath), had come to their house and had taken away Abhishek with him but Abhishek had neither reached his school nor had yet returned. Hearing this, the informant at once rushed to the place where typist Vikas Sharma (A-1) used to sit at the tehsil court campus, to inquire from him about the whereabouts of his son but Vikas Sharma was not found on his seat. The informant then rushed to his home and asked about Abhishek from his wife and daughter, both of whom, while weeping informed that Abhishek had not yet returned. The informant along with his wife started to search his son. During search his brother-in-law (Behnoi) Rakesh Agrawal informed that he had seen Abhishek and accused/appellant Vikas Sharma going towards Prakash Chowk at about 10.00 a.m. The informant and his wife searched their son at Prakash Chowk but his whereabouts remained untraced. Searching their son when they reached at Mahaveer Chowk, Pramod Sharma, Advocate and Anuj Kumar (P.W. 3) met them who informed them to have seen Abhishek in the company of accused/appellants Vikash Sharma, Rajesh Saini, Aashu and Arvind, standing in front of Swagat Hotel at about 10.30 a.m. The informant and his wife searched their son in Swagat Hotel and some other hotels also but in vain. When the whereabouts of Abhishek remained untraced till the morning of 28.11.2003 i.e. the next day of Abhishek's disappearance, the informant lodged a written report at PS. Nai Mandi, Muzaffar Nagar on 28.11.2003 at 9.15 a.m. narrating all the aforesaid facts and expressing therein his apprehension about abduction of his son for ransom by all the accused/appellants. In the F.I.R. itself he also mentioned the names of villages of appellants Rajesh and Aashu as Kasba Jansam and village Aadampur, P. S. Khatauli, district Muzaffar Nagar, respectively.
3. On the basis of the aforesaid written report (Ext. Ka. 1), a criminal case was registered at Crime No. 541 of 2003 at PS. Nai Mandi, District Muzaffar Nagar under Section 364 I.P.C. against all the appellants. Chik F.I.R. (Ext. Ka. 4) was prepared and the investigation got started. The I.O. obtained a photograph of deceased Abhishek from the informant (Material Ext. 1) and searched for all the accused persons named in the F.I.R. but none of them was found at his residence. The I.O. then recorded the statements of witnesses Pramod Sharma and Rakesh Agrawal who had lastly seen the deceased Abhishek in the company of accused persons. The I.O. reached Swagat Hotel with the photograph of Abhishek and enquired from the hotel employees, who informed the I.O. to have seen Abhishek on 27.11.2003 when he was going towards room No. 209 of hotel. The I.O. checked the hotel register and found that room No. 209 was booked in the name of some Rohit Gupta, resident of 208/7, Lohia Nagar, Ghaziabad at a rent of Rs. 400/- per day, having its check-in time at 10.15 a.m. on 26.11.2003 and check out time at 3.00 p.m. on 27.11.2003. The hotel register was taken into custody and its recovery memo (Ex. Ka. 21) was prepared. However, on verification, the name and address of occupant of room No. 209 i.e. Rohit Gupta was found to be fake and false. The verification report of identity of Rohit Gupta is available as Ex. Ka. 38 on the record.
4. On 28.11.2003, the I.O. once again visited Kasba Jansath in search of appellants but with no result. Ultimately, on the information of a "Mukhbir", the appellants Rajesh, Aashu and Vikas were arrested by the I.O. from the bus stand of Kasba Jansath in the morning of 29.11.2003,. At the time of their arrest, the informant Pradeep Garg - the father of deceased along with several other residents of Jansath Kasba also reached there. On enquiry, the aforesaid appellants confessed their guilt in presence of informant and the public gathered at the spot. They informed the I.O. that on 27.11.2003 they had kidnapped Abhishek and had taken him to room No. 209 of Swagat Hotel, giving him allurement of showing some pornographic movie. Appellant Arvind Saini was also with them. On reaching the hotel room they bolted the room from inside. They had an intention to take at least Rs. 10 lacs from Abhishek's father as ransom. When Abhishek tried to run outside the room apprehending something fishy, all of them overpowered him. They caught hold of him and made assault on his neck by a scissor. As a result of injury, Abhishek became unconscious. Then they dragged him inside the bathroom attached to the hotel room. Inside the bathroom, they tied his hands and legs with a rope and then they chopped off his body into two parts. Thereafter, they kept both the parts in two separate polythene bags and packed the polythene bags into two suitcases. Accused Rajesh Saini had already booked a taxi from 'Shikhar Car Service' which was an Ambassador car No. UGA 8551 with its driver Saleem. They kept those suitcases into its dicky and the taxi drove towards village Khatauli with the appellants Rajesh and Arvind. At Khatauli they threw the mobile phone of deceased Abhishek into Ganga canal after breaking it. Arvind Saini alighted from the taxi at the gate of railway crossing, Khatauli and proceeded towards his village Adampur. Rajesh Saini took both the suitcases to his shop "Sunny Cloth House" situated at Kasba Jansath. Co-accused Vikash Sharma and Aashu Gupta had already reached at that shop. Rajesh Saini's real brother accused Raj Kumar and cousin brother accused Kailash were also present there. All of them emptied the suitcases inside the shop. They kept both the polythene bags containing two parts of dead body along with other incriminating articles in two separate plastic sacks. At about 8.00 p.m. Rajesh brought a tractor. Those sacks were taken to the jungle by that tractor and were buried down under the sugarcane fields of Vishnu Sahai and Dinesh Kamboj.
5. On the aforesaid confessions of the appellants Rajesh, Aashu Gupta and Vikas Sharma, the police took them to the cane fields of Vishu Sahai, where at about 10.30 a.m. accused Rajesh Saini dug out the loose soil from a place and took out a plastic sack having a zipped bag inside it. When the zip of the bag was opened, the upper part of Abhishek's body was found inside it which was identified by informant Pradeep Garg as that of his son Abhishek. One pair of shoes, jeans with belt, one shirt with one front button missing, one sandow baniyan, all blood stained, one pair of scissors, 3 blades of wood cutter ('aari') along with one blood stained "Aari" one pair of new plastic gloves and one pair of used plastic gloves, one used piece of soap and a plastic rope were also recovered from the bag (material ex. 2 to 21 on the record). After that the accused Vikas Sharma, Aashu Gupta and Rajesh Saini pointed out towards the field of Dinesh Kamboj situated at the other side of 'Mend' stating that the other part of body was buried in that field. The police took accused Aashu Gupta and Vikas Sharma to the field of Dinesh Kamboj where both of them after removing the loose soil from a place took out a white polythene bag. Inside that bag the lower part of Abhishek's body was found tied with a nylon rope, which was also identified by the father as that of his son.
6. On recovery of both the parts of dead body of Abhishek, sections 302 and 201 of I.P.C. were added in this case. The recovery memo Ex. Ka. 2 and Ka. 3 were prepared on which the signatures of all the three accused appellants, at whose instance the recovery was made and the signatures of witnesses were obtained. The inquest proceedings were conducted and the body was sent for post-mortem examination.
7. The post-mortem examination of the dead body was conducted on 29.11.2003 at7.30 p.m. by two doctors.
8. Post-mortem report (Ex. Ka. 6) reveals that on external examination of the dead body the doctor found that it was a well built body kept in two halves in two separate transparent white plastic.
9. The horrifying description of ante-mortem injuries, according to the post-mortem report is as follows:
I. Incised wound 13 x 2.5 cm. trachea deep on right side of neck 6 cms. connected from thyroid cartilage in front of neck and to the right side of neck from middle of chin in front 5 cms. below from right ear where trachea is present. All soft tissues muscles, trachea oesophagus and right carotid artery are cutted through and through. Clotted blood is present in all injury.
II. Incised wound 38 x 22 cms. X through and through on mid of abdomen 2 cms. above from unblinking 10 cms. below from zyphord angle. All soft tissue, muscle, abdomen and scera are cutted through and through, Lumber vertical also cut through and through clotted blood is present in all injury.
The external examination report is as under:
Well built body. Body is received in two separate sealed clothes and in two halves. On opening seals body found in two halves. On opening sealed clothes both halves are found in two separate transparent white plastic two pieces.
Upper half
Eye close. Tongue protruded out slightly and clinches in between both jaws teeths. a frothy blood is coming out from nostrils. A fiber rope is tied around neck and left wrist. A red thread is tied on around right wrist.
Lower Half
A rope of same caliber (Rassi joot ki) is tied on both upper part of thigh and both ankle both knee were bending with the help of rope. Internal viscera are visible on both halves. Rigor mortis is absent on all over body. Dried blood smear is present on all over body at place and with green colour. Visible viscera and cutted muscles are smeared noted on with green eye colour. A tuft of black hairs are present in both hands finger which are sealed packet and from scale hair are sealed in second packet.
10. The cause of death was found to be shock and haemorrhage as a result of ante-mortem injuries.
11. It is noteworthy that the doctor while conducting post-mortem, also found black human hairs entangled inside both the clenched fists of deceased Abhishek. The doctor opened the fists and kept those hairs in a sealed envelop for sending it for forensic examination. The hair samples of appellants Rajesh, Vikas, Aashu and Arvind were also taken for comparison with those hairs and sent to FSL, Agra in separate envelopes. Some hairs, found inside room No. 209 of hotel during search, were also sent for chemical examination. The report of FSL, Agra is Ex. 65 on the record. According to which blood stains were found on the hairs found from the closed fists of deceased. However, no definite opinion could be given about the similarity of those hairs found inside the fists of deceased with those of appellants. All those samples of hairs kept in separate envelopes were produced in the Court during trial and were marked as material Exhibits 28 to 31.
12. At the instance of appellants Rajesh, Aashu and Vikas the suitcases were recovered from the godown situated at the basement of "Sunny Cloth House". Both the suitcases were produced in court and were marked as material Exs. 32 and 33. The recovery memo of suitcases having signature of appellants and witnesses is Ex. Ka. 9 on the record.
13. From the almirah kept in room No. 209 of the hotel, the I.O. recovered a button with black thread in its holes, having resemblance with the remaining buttons of the shirt of the deceased which he was wearing at the time of his death and which was recovered with his dead body with one front button missing. One blood stained hanky was also found in the hotel room. From the bathroom attached to room No. 209, one blood stained blade of 'aari' was recovered which had been kept hidden behind the cistern of its commode. The pieces of blood stained tiles and blood stained wooden door were also taken into possession by the I.O. The recovery memo of all these articles having signature of appellants and the witnesses is Ex. Ka. 20 on the record.
14. On 30.11.2003 the fingerprint expert Dr. Rajendra Singh collected finger prints from the dressing table, wooden, almirah, stainless steel kettle, T.V. stand, the mirror of dressing table and washbasin of room No. 209 in presence of the witnesses and the I.O. who prepared its memo (Ex. Ka. 18). The site plan of the hotel room and bathroom attached to it was also prepared by the I.O. which is Ex. Ka. 32 on the record.
15. The remaining accused persons Kailash, Arvind and Raj Kumar were arrested on 2.12.2003 from Hindustan Petrol Pump, Jansath. During search a ring made of yellow metal having the name 'Lovey' engraved on it, was recovered from the pant pocket of appellant Arvind.
16. The site plan of place of arrest was prepared. Accused Rajkumar informed that the CD player he had brought to hotel for the purpose of showing pornographic movie to deceased, had been concealed by him as per instructions of accused Rajesh. At the instance of accused Rajkumar, the I.O. recovered one Sony CD player, material (Ex. 80), a remote (material Ex. 82), a converter (material Ex. 81), wire material (Exs. 83 to 86) and recovery memo of all these articles Ext. Ka. 112 was prepared on which the signatures of accused Raj Kumar and witnesses were obtained.
17. On conclusion of the investigation, the I.O. submitted charge-sheet against 6 persons including the appellants. The case being exclusively triable by the court of Sessions, was committed to it where charges under sections 364, 302 read with Sections 34 and 201 of I.P.C. were framed against the appellants. Charge under Section 201 was framed against accused Raj Kumar and Kailash for aiding the appellants in concealing the dead body. All the accused persons denied the charges and claimed their trial.
18. During trial, the prosecution, in order to prove its case examined 13 witnesses in all. Apart from it, 68 documents (Exs. 1 to 68) and 132 articles (material Exs. 1 to 132) were also produced in Court by the prosecution in support of oral testimony of the witnesses.
19. After conclusion of prosecution evidence the statements of accused/appellants under Section 313, Cr.P.C. were recorded in which the appellants admitted the fact that Vikas Sharma was working as typist at Tehsil Court Jansath where the informant Pradeep Kumar Garg used to practice as an advocate. They also admitted that the samples of their hairs and finger prints were taken before CJM but all of them denied the remaining allegations and counter allegations and alleged their false implication by the police. All of them also alleged that the police forcibly compelled them to confess their guilt.
20. In their defence, the appellants produced one defence witness Vinay Kumar as DW-1. As documentary evidence photocopy of newspaper "Royal Bulletin" dated 29.11.2003 and photocopy of newspaper "Amra Ujala" dated 29.11.2003 was produced by them challenging the date and time of their arrest and recovery at their instance as doubtful. Apart from the above mentioned documents photo copies of some letters of police officers and original receipt of registered letters sent to Human Rights Commission were also filed by the appellants.
21. The learned court below, after a detailed appreciation of evidence, adduced by both sides, found the prosecution case reliable and worthy of credit. Accordingly it held all the appellants guilty and convicted them under Sections 302/34, 364 and 201 of I.P.C. The appellants were awarded detail sentence alongwith fine of Rs. 20,000/- for their conviction under Section 302/34. The sentence of life imprisonment and fine of Rs. 10,000/- under Section 364, I.P.C., in default of fine two years additional R.I. and 7 years R.I. with fine of Rs. 10,000/- under Section 201 and in default of fine 1 year additional R.I. was awarded to all the appellants.
22. Being aggrieved by their conviction and sentence the appellants are before us, challenging the legality and correctness of the judgment and praying for their acquittal.
23. The points for determination in this appeal are:
(a) As the instant case rests on circumstantial evidence whether all the circumstances have been fully proved and established by the prosecution in such a way so as to form a complete chain pointing only towards the guilt of appellants and towards no other hypothesis?
(b) Whether the trial court has rightly appreciated the evidence while arriving at the decision of conviction?
(c) Whether the death sentence awarded by the trial court is excessive?
24. As point Nos. a and b are inter-related, therefore, we are discussing both these points together.
25. Before dealing with the issues involved in aforesaid points, it is considered expedient to have a birds eye view of the statements of relevant prosecution witnesses.
26. The prosecution, in order to prove its case, has produced 13 witnesses in all, out of which 8 witnesses are of fact and the remaining are formal.
27. Pradeep Kumar Garg who is the father of the deceased and the first informant has been produced as P.W. 1, who has supported the prosecution case by his oral testimony stating that on 27.11.2003 he had left for Tehsil Jansath, as per his usual routine. At about 3.30 p.m. his wife rang him up on his office phone No. 234491 and informed that Vikas Sharma had come sometime after his leaving for his office and he had taken away Abhishek with him, but Abhishek had not yet returned. She also informed that Abhishek had not even gone to his school. When she tried to contact Abhishek on his mobile number, she did not get any response. Hearing this, the informant immediately rushed to the seat of Vikas Sharma at Tehsil Court, Jansath, but Vikas Sharma was not found on his seat. Then he rushed to the house of Vikas Sharma where his mother informed that Vikas had not come to home since yesterday. Thereafter, the informant went to his home situated at Jansath from where he took his younger brother Manoj Garg with him and returned to his home at Muzaffar Nagar. On returning home when he again asked from his wife and daughter whether Abhishek had returned or not, both of them while weeping replied in negative. The informant and his wife proceeded to search their son on a motorcycle. During search his brother-in-law Rakesh Agarwal informed him that when he was going to his shop in the morning he had seen Abhishek at about 10.00 a.m. going towards "Prakash Chowk" with appellant Vikas Sharma. The informant reached "Prakash Chowk" and tried to search his son. From "Prakash Chowk" he proceeded towards Mahavir Chowk. At Mahavir Chowk Advocate Pramod Sharma and one Anuj Kumar informed him to have seen Abhishek standing in front of Swagat Hotel along with Vikas Sharma, Rajesh Saini, Arvind and Aashu Gupta. P.W. 1 has stated that he knows the appellants Rajesh Saini, Vikas Sharma and Aashu Gupta since prior to the occurrence. Pointing out towards the appellants present in the court and identifying all of them as accused persons, P.W. 1 has further stated that thereafter he went to Swagat Hotel along with his wife, but failed to get any information about his son. Leaving his wife at home he again went to tehsil Jansath and on the same night he visited the houses of appellants Aashu Gupta, Rajesh Saini and Vikas Sharma, but no one was found at his house. Therefore, the informant returned to Muzaffar Nagar. Next day i.e. on 28.11.2003 early in the morning at about 5.00 a.m. he once again reached Jansath and visited the houses of appellants Rajesh Saini, Vikas Sharma and Aashu Gupta situated at Jansath but neither any of them were found nor any information was received about informant's missing son. The informant, under the apprehension mat his son Abhishek might have been kidnapped for ransom by the appellants because of his sound financial condition and apprehending that his son's life might be in danger, went to Police Station Nai Mandi and lodged a written report (Ex. Ka-1) at 9.15 a.m.
28. P.W. 1 has further stated that he had informed the police that at the time of occurrence Abhishek was wearing a gold ring having the word "Lovey" engraved on it, Abhishek was aged about 18 years and he was a student of Class XI. The police had come to his house and had interrogated his wife and daughter and had prepared the site plan of his house. He had also given a photograph of Abhishek to the police (Material Ext. 1). He has further stated that on 29.11.2003 at about 8.00-9.00 a.m. he started from his house and when he reached at the road proceeding towards Kasba Jansath, he saw large number of crowd gathered at the road. He was informed that the police had arrested Rajesh Saini, Vikas Sharma and Aashu Gupta. On reaching there he saw all the three appellants in police custody. When the police inquired from the appellants about the occurrence, they jointly disclosed that they had abducted Abhishek for ransom and had killed him inside the room No. 209 of Swagat Hotel. They further informed that Arvind Saini was also involved in the murder of Abhishek. The appellants told that they had chopped off Abhishek into two parts and had buried down both the parts of his body separately into the sugarcane fields of Vishnu Sahai and Dinesh Kamboj. While confessing their guilt the appellants Rajesh, Aashu and Vikas stated that they could help the police to recover the dead body from those fields.
29. P.W. 1 has further stated that after such disclosure, the police took the appellants by its jeep to the fields of Vishnu Sahai where the appellant Rajesh Saini dug the loose soil from a place first from his hands and then by a spade and took out a white plastic sack, when the sack was opened a zipped bag was found inside it. On opening its zip, the upper part of the dead body of Abhishek was found inside it wrapped in a transparent polythene sheet. Besides it, the clothes of deceased Abhishek including a blue jeans a shirt having white, light brown and blue coloured checks with one front button missing, a belt, a vest, shoes, one saw (aari) along with three blades having blood stains, one pair of scissors, one pair of new gloves and one pair of used gloves having blood stains were also found in the bag. On seeing his son's body he started crying and identified his son's body. Thereafter, appellants Vikas Sharma and Aashu Gupta were taken to the fields of Dinesh Kamboj where after removing the loose soil from a place one more white sack was taken out, inside which the lower part of the body of Abhishek was found wrapped in a transparent polythene sheet having blood stains all over it. The recovery memo of all articles and the dead body was prepared by the I.O. and the signatures of appellants Rajesh Saini, Vikas Sharma and Aashu Gupta and also his signature, were taken on recovery memo. P.W. 1 has proved these recovery memos in the Court as Ex. Ka-2 and Ex. Ka-3.
30. This witness (P.W. 1) has faced lengthy and grueling cross-examination by several learned defence counsels appearing for different accused appellants. During cross examination he has admitted that he had not received any call from the appellants demanding any ransom. He has also admitted that the fact that his son Abhishek was killed inside hotel room had come to his knowledge for the first time by the confessional statement of appellants.
31. P.W. 2 Anshu Garg, mother of the deceased Abhishek, in her statement has stated that on 27.11.2003 at about 8.45 a.m. typist Vikas Sharma alias Moni had come to her house and asked her to send Abhishek with him stating that he would come back after sometime. Her husband, as per his usual daily routine, had gone to Tehsil Jansath for practicing. As she was not feeling well, she had asked Abhishek to take leave from his school. Her daughter Abhilasha Garg had gone to her school. At about 9.15 a.m. she went to sleep after taking some medicine. Thereafter she woke up at about 2.45 p.m.and found that Abhishek had not yet returned. She tried to contact on Abhishek's mobile number by the mobile phone of her landlord, but his phone was found switched off. When her daughter returned from school she told her about Abhishek. She again called on his mobile phone, but still it was found switched off. Thereafter, P.W. 2 has narrated the same facts, as stated by P.W.1.
32. P.W. 3 is Anuj Kumar, who was working as a Deed Writer at Tehsil Jansath at the time of occurrence. He is the witness who has seen the deceased lastly in the company of appellants Vikas, Aashu and Rajesh. He has stated that on 27.11.2003, he along with Pramod Sharma, Advocate, was going on a rickshaw when they saw deceased Abhishek alias Lovey standing with appellants Vikas Sharma, Aashu Gupta, Rajesh Saini and Arvind Saini in front of Swagat Hotel. He has stated that he knows all these accused-appellants since prior to the occurrence. P.W. 3 has further stated that when they were returning from Kutchehry at about 6.30 p.m. he met Pramod Sharma, Advocate, near Prakash Chowk and both of them proceeded towards Mahavir Chowk on a rickshaw. At Mahavir Chowk they met Pradeep Garg, Advocate, and his wife coming slowly on a motorcycle. Both of them were appearing tensed and perturbed. Both of them told that they were searching for their missing son Abhishek and he (P.W. 3) informed them to have seen Abhishek in the company of appellants. P.W. 3 has further stated that on the next day i.e. 28.11.2003 at about 7.00 a.m. Pradeep Garg had come to his house and had asked him to accompany him to police station for lodging the report. Reaching at Police Station Mandi, Pradeep Garg wrote the F.I.R. in his own handwriting and gave it to "Diwanji".
33. P.W. 4 Constable Clerk Jagbeer Singh, who has prepared the chik F.I.R. (Ex. Ka-5). He has stated that at 9.15 a.m. on 28.11.2003 he was on duty when on the basis of a written report lodged by Pradeep Kumar Garg, Advocate, he prepared the F.I.R.
34. P.W. 5 is Dr. R. Dayal, who has conducted the post-mortem of the deceased. He has stated about the ante-mortem injuries and the articles received with the dead body of Abhishek and also about the hairs found in his closed fists. He has proved the post-mortem report (Ex. Ka. 6).
35. P.W. 6 Rakesh Kumar Agarwal, is the second witness of "last seen" evidence. He is also a witness of recovery of dead body. He has stated that on 27.11.2003 he was going towards his shop situated at Sanjay Marg, Patel Nagar. At about 10.00 a.m., when he reached in front of roadways, he saw Abhishek going towards Prakash Talkies along with Vikas Sharma. He has further stated that at 6.00 p.m. on the same day when he was sitting in his shop, his brother-in-law Pradeep Garg and his wife Ansu came to his shop on a motorcycle searching their son Abhishek. He had informed them that when he was going to his shop, he had seen Abhishek at 10.00 a.m. in the company of appellants. P.W. 6 has further stated that on 29.11.2003 when they were searching Abhishek at Tehsil Jansath and had reached at the bus station of Tehsil, they saw a large crowd gathered there and found that the police had arrested Rajesh Saini, Ashu Gupta and Vikas Sharma. He had accompanied the appellants and police to the field of Vishnu Sahai and had witnessed the recovery of two parts of body of Abhishek from the fields of Vishnu Sahai and Dinesh Kamboj at the pointing out of the appellants. He has further stated that the inquest of dead body was conducted before him. He was also a witness of inquest. He has identified his signatures on inquest report (Ext. Ka-7). He has further stated that the inquest proceedings were started at about 1.00 p.m. and were concluded at about 3.30 p.m.
36. P.W. 7 S.L. Lawaniya is the first I.O. of this case who has stated that the case was registered on 28.11.2003 in his presence. He recorded the statement of informant Pradeep Kumar Garg at the police station and thereafter went to the house of informant and recorded the statements of Abhishek's mother and sister. He prepared the site plan (Ex. Ka-8) and interrogated the complainant's landlord Sri Satya Narain Agarwal and also some of his neighbours. Thereafter, the investigation of this case was taken up by Inspector B.P.S. Solanki. On 29.11.2003, he came to Muzaffar Nagar along with Inspector Solanki and recorded the statements of witnesses. On 29.11.2003 at about10.00 a.m. on the information of some 'Mukhbir' the accused Aashu Gupta, Rajesh Saini and Vikas Sharma were arrested from the bus stand of Jansath and all of them confessed their guilt before the huge crowd gathered at the bus station. The relevant part of the statement of P.W. 6 (the first I.O.) is extracted below:
(Vernacular matter omitted...Ed.)
37. P.W. 8 Mohd. Salim is the a taxi driver on whose Ambassador Car No. UJA 6551, the dead body of Abhishek was carried in two suitcases from Swagat Hotel to the shop of appellant Rajesh Saini "Sunny Cloth House" situated at Kasba Jansath. The statement of P.W. 8 is reproduced as under:--
(Vernacular matter omitted... Ed.)
38. P.W. 9 Manoj Kumar is the photographer who had taken photographs of the dead body at the time of its recovery from the fields of Vishnu Sahai and Dinesh Kamboj. He has proved the photographs and their negatives in the court and all those have been marked as material as Exs. 34 to 59.
39. P.W. 10 is Zaheer Shah who is a witness of recovery of two suitcases from the shop of appellant Rajesh Saini. Some relevant part of his statement is reproduced below:
(Vernacular matter omitted...Ed.)
40. P.W. 11 is S.I. Rajveer Singh. He is the police official who has conducted the inquest proceedings and has sent the dead body for post-mortem. He is also a witness of recovery of dead body and recovery of tractor from the house of appellant Rajesh Saini on which the dead body was carried towards the field of Vishnu Sahai and Dinesh Kamboj. He was posted at P.S. Jansath at the time of occurrence and had accompanied the police force to the place of recovery. He has stated mat as at the time of inquest, both the fists of deceased were tightly closed therefore he could not take out the hairs although he had seen the hairs in the fists of deceased.
41. P.W. 12 is Dr. Rajendra Singh, Scientist, Forensic Lab who has stated that on receiving the telephonic call of Officer In-charge, P. S Mandi he reached at Swagat Hotel on 30.11.2003 along with his team. Police Inspector B.P.S. Solanki and some other police officials, employees of hotel, accused Vikas Sharma, Rajesh Saini and Aashu Gupta and some people were also present at that time at the hotel.' He reached the room No. 209 of Swagat Hotel and opened its lock. He has further deposed that the accused Vikas Sharma had informed that it was the same room where they had chopped off the deceased and kept the two parts of his body into separate polythene covers and after that into two suitcases. Thereafter they washed the room. He has further stated that he inspected the room and collected finger prints from the almirah, dressing table, mirror, T.V. stand, T.V. table, steel kettle and mirror of bathroom etc. He has further stated that some black coloured hairs were found entangled in the right side corner of the table. Some hairs were also found under the T.V. stand and almirah. One white coloured hanky was found under the almirah and one button with black thread was found under the almirah. One red coloured Bindi and black coloured hairpin were also found from the dressing table. All these items were kept in a sealed cover and their respective memos were prepared. All these items were marked as material Exts. 60 to 67. During his cross examination he has stated that the lock of room No. 209 was opened in his presence.
42. P.W. 13 Braj Pal Singh Solanki is the second I.O. of this case. Some of the relevant parts of his statements are extracted below:
(Vernacular matter omitted...Ed.)
The I.O. has also stated about the recovery of the ring having "Lovey" engraved on it, from the possession of appellant Arvind after his arrest on 2.12.2003.
43. No other witness was produced by the prosecution. After conclusion of prosecution evidence, the statement of all the appellants were recorded under Section 313, Cr.P.C. during which all of them denied the allegations and stated about their false implication. All of them admitted the fact that Vikas Sharma works as a typist at Telhil Court Jansath and informant P.K. Garg is a practicing lawyer in that tehsil court but denied the other facts. When they were asked as to how their finger prints were found at different places inside room No. 209 of Swagat Hotel, they simply stated that this is a matter relating to the evidence hence they could not say anything about it. Appellant Rajesh admitted that his photo was published in Royal Bulletin and Dainik Jagran on 29.11.2003. All the appellants stated that the police arrested them from their house and falsely implicated them. However, all of them admitted that the samples of their hairs and fingerprints had been taken before the C.J.M.
44. In their defence the appellants have produced one witness Vinay Kumar as DW-1, a deed writer working at Tehsil Jansath who has stated about the newspaper Dainik Jagran dated 29.11.2003 in which the photographs of informant Pradeep Garg, his brother Subhash Garg, Mahendra Singh, CO., Pramod Sharma, Advocate and also of appellant Rajesh Saini were published. He has stated that all these photographs were taken prior to taking of the appellants to the jungle. He has stated that after having come to know about the recovery of dead body he had gone to the jungle and found the dead body being dug out from the ground. The photographers were taking its photos. None of the appellants was present there. D.W. 1 has further stated that the accused appellant Vikas is his real brother-in-law. On 27.11.2003 he was working in Tehsil Jansath for the whole day. He has further stated that Vikas was typing at Kutchehry till 9.30 a.m. on 28.11.2003.
45. Thus, this witness has tried to demolish the prosecution story about arrest of appellant Rajesh on 29.11.2003 from bus stand of Jansath. He has also stated about the alibi of appellant Vikas Sharma. No other witness has been produced by the defence.
46. Sri V.C. Srivastava and Sri P. S. Pundir, learned counsel for the accused-appellants, during their oral arguments and by filing written submissions have challenged the prosecution case and the findings recorded by learned trial court mainly on the following grounds:
(i) There is delay in lodging the F.I.R. The date of occurrence, according to the prosecution story, is 27.11.2003. The informant is living in Nai Mandi and the distance of Police Station Nai Mandi is only 1.5 km. from his home. In the F.I.R. itself, the informant has stated that on 27.11.2003 the witness Rakesh Agrawal had told him about the deceased Abbishek seen in the company of appellant Vikas. The witnesses Pramod Sharma, advocate and Anuj had also informed him about Abbishek being seen in the company of appellants Vikas, Rajesh and Aashu in front of Swagat Hotel. These informations were received by the informant till the evening of 27.11.2003 but the F.I.R. has been lodged on the next day i.e. on 28.11.2003 at 9.15 a.m. The prosecution has not explained this delay properly.
(ii) The recovery of dead body at the instance of accused-appellants is doubtful. The body had already been recovered at the time of lodging of the F.I.R. which fact is evident from the photograph published in the newspaper dated 29.11.2003 showing the appellant Rajesh Saini in police custody with a suitcase. The submission of learned counsel for the appellants is that the dead body had been recovered on 28.11.2003 and not on 29.11.2003 because it is impossible to publish the news of an incident, in the morning newspapers, which has taken place on the same day. Learned counsel has contended that this fact also finds corroboration with the overwriting on the date mentioned in inquest report and also on the "Parcha" in CD relating to the statement of accused persons under Section 161, Cr.P.C.
(iii) There is inordinate delay in sending the special report to Magistrate which is obvious from the initials of Magistrate on the check F.I.R. which shows that the Magistrate had seen this report on 2.12.2003. This delay makes the prosecution story doubtful.
(iv) None of the accused-appellants has tried to abscond from the place of occurrence after the incident as appellant Nos. 1 to 3 were arrested from Jansath and appellant No. 4 was arrested from a place near Hindustan Petrol Pump by pass.
(v) There are so many laches and lacunas in the investigation which is evident from the statement of I.O. Sri B.P.S. Solanki examined as P.W. 13 in this case. The I.O. has not interrogated any of the employees of Swagat Hotel. During search of room No. 209 of Swagat Hotel i.e. the place of murder of deceased Abhishek as per prosecution story, a Bindi stuck on the mirror of dressing table, a hair clip and some strands of long hairs were also found entangled in the furniture which show the involvement of some woman in the occurrence but the I.O. has not made any investigation in this direction. The recovery of these articles indicates that the deceased might have been in long touch of some professional sex worker who could have been involved in the said occurrence. It may also be possible that the deceased had fallen in love with some girl and the family members of the girl being opposed to it, had caused the murder of the deceased to save the honour of their family.
(vi) There is no evidence on record of demanding any ransom from the father of the deceased as the father of the deceased/informant has admitted this fact that he did not receive any call regarding any such demand of ransom.
(vii) The forensic science lab report shows that no definite opinion could be given about the similarity of hairs taken from the accused-appellants and the hairs found in the closed fists of deceased Abhishek.
(viii) The blades of "Aari" recovered by the police were found twisted at some places which fact makes the alleged weapon of murder wholly unreliable specially in the light of the statement of P.W. 5 - the doctor conducting the post-mortem who has stated that the edges of all the incised wounds of the deceased's body were clean cut. Learned counsel have contented that clean cut wounds were not possible with those blades, twisted from places.
(ix) The evidence led by the prosecution shows that the appellants are alleged to have made joint disclosure after their arrest, which is not contemplated under Section 27 of the Indian Evidence Act. Therefore, the joint disclosure and the recovery made in pursuance of that disclosure is not admissible in evidence. In this regard learned counsel for the appellants have placed reliance on the law laid down by Apex Court in Mohd. Abdul Hafeez v. State of A.P. MANU/SC/0091/1982 : (1983) 1 SCC 143 : (AIR 1983 SC 367).
(x) This case rests entirely on circumstantial evidence and the true and real circumstances were not investigated properly by the I.O. so as to bring to light the real culprit. The chain of circumstances is incomplete and it can not be said that the circumstances of this case conclusively point out towards the culpability of appellants so as to arrive at a definite conclusion that in all human probability the act must have been done by the accused persons and by none other.
On the aforesaid grounds, learned counsel for the appellants have submitted that the prosecution story in this case, being based on imagination, conjectures and surmises, is highly doubtful. Therefore it is liable to be discarded; the impugned judgment sentencing the appellants to the maximum punishment, is liable to be set aside and the appeal deserves to be allowed.
47. Per contra, learned A.G.A. has contended that the prosecution has successfully proved the existence of all the incriminating circumstances in this case pointing conclusively towards the appellants and the chain of events is so complete that it does not leave any reasonable doubt with regard to the complicity of the appellants in this case. Learned A.G.A. has submitted that the laches and lacunas on the part of I.O. will not give any benefit to the accused persons as per law laid down by Hon'ble Apex Court in a catena of judgments. There is no delay in lodging the F.I.R. which has been promptly lodged without any delay. The lodging of FIR in the morning of next day i.e. on 28.11.2003 at 9.15 a.m. appears natural in view of the fact that after having received the information about his son from the witnesses who had last seen the deceased in the company of appellants, all of whom had prior acquaintance with the informant/the father of victim, he firstly visited their houses in search of his son and when he could not find him, he lodged the F.I.R., naming all the appellants.
48. The submission of learned A.GA. is that the deceased was lastly seen in the company of the accused-appellants Rajesh, Aashu and Vikas by the witnesses who have proved this fact by their testimonies in court. Therefore, the accused-appellants were duty bound to explain that when and under what circumstances they parted with the company of the deceased but the accused-appellants have not given any explanation or any proper reply to this question put to them under Section 313, Cr.P.C. and have tried to avoid the questions by giving evasive answers or by giving answer by a general denial. The submission of learned A.G.A. is that the general denial and the evasive answers given by the accused persons during their statements recorded under Section 313, Cr.P.C. provide the missing link, if any, in the chain of circumstances.
49. Advancing his arguments further, learned A.G.A. has submitted that all the prosecution witnesses of fact are throughout cogent and consistent while deposing in court. There appears no material contradictions in their statements, the witnesses have no motive to falsely implicate the appellants in this case. The weapon of murder i.e. 'aari' fully corroborates the nature of injuries i.e. clean cut incised wounds. Learned A.G.A. has vehemently argued that the blade of 'aari' could have been twisted at some places during its use while cutting the body into half and it was not an 'aari' with twisted blades. The submissions of learned A.G.A. is that the appellants have committed brutal murder of a young boy, therefore, the appeal being devoid of merits be dismissed and the conviction and sentence awarded by learned trial court be affirmed.
50. Learned counsel from both sides have placed before us several judgments of Hon'ble Apex Court in support of their rival contentions. We have carefully perused all those judgments.
51. As every criminal case stands on its own peculiar facts, the verdict given in any criminal case can not be blindly relied on while deciding any other criminal case having different set of facts. However, if any legal principle is laid down, that will apply in every case and we are drawing our conclusions, keeping in view the legal principles laid down by Hon'ble Apex Court in all those cases laid before us by learned counsel for both the parties.
52. The facts of this case clearly show that the entire prosecution case in the instant appeal, rests on circumstantial evidence. The legal principles relating to circumstantial evidence have been well established by the Hon'ble Supreme Court in a series of judgments. In the case of Rohtash Kumar v. State of Haryana, MANU/SC/0573/2013 : 2013 (14) SCC 434 : (AIR 2013 SC (Supp) 244), the Hon'ble Apex Court has reiterated the law as follows:--
i. The prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused.
ii. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be conclusive in nature, and must exclude all possible hypothesis, except the one to be proved.
iii. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be so complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability the said offence must have been committed by the accused."
53. Now the question is whether all the facts and circumstances of the case in hand have been fully established by the prosecution and are of such conclusive in nature so as to leave no doubt that the murder of deceased Abhishek, within all human probability has been committed by the appellants only and by none else? In other words, whether the chain of circumstances is so complete so that no other inference can be drawn except that of the guilt and culpability of the appellants?
54. On a careful scrutiny of the impugned judgment in the light of evidence available on record, as discussed in detail in the earlier part of this judgment, we are of the firm view that all the circumstances of this case have been successfully established by the prosecution by means of oral and documentary evidence and there appears no illegality or perversity in the findings recorded by learned trial court regarding the culpability of the appellants. All the witnesses are throughout cogent and consistent during their testimony in court. All the witnesses, including even the formal witnesses like I.O., the doctor and the fingerprint expert have been extensively cross examined by learned defence counsel but nothing could be extricated from them so as to make the prosecution case unreliable. Some minor discrepancies occurring in their statements should be over looked in wake of the well settled legal principle laid down by Apex Court in a catena of judgments. In Shankar v. State of Karnataka (MANU/SC/0693/2011 : AIR 2011 SC 2302), the law has been reiterated by the Apex Court as under:
"Minor contradictions, inconsistencies, embellishment or improvements on trivial matters which do not affect the core of prosecution case, should not be made a ground on which the evidence can be rejected in its entirety."
55. It is also noteworthy that none of the material witnesses has any previous enmity with the appellants. On the other hand the victim's family had friendly terms with the appellants and the victim used to call appellant Vikas "Chacha". The rest of the appellants are also well acquainted and previously known persons. There is no reason why anyone would falsely implicate his close friend?
56. As the pages of prosecution story are unfolded one after another, the sequence of events comes to light forming a complete chain conclusively pointing out only towards the guilt of appellants and towards no other possibility. All the links in the chain of circumstances and events as is clearly evident from a perusal of the evidence discussed in detail in earlier part of this judgment may be summarised here as under:--
(i) Admittedly the appellant Vikas Sharma was working as a typist in the same court campus of tehsil Jansath, where the father of deceased Abhishek used to practice as an advocate.
(ii) Appellant Vikas Sharma was a friend of Manoj Garg, the real uncle of deceased Abhishek, and Abhishek used to call him "uncle".
(iii) Being a family friend appellant Vikas Sharma was on visiting terms with the family members of deceased Abhishek.
(iv) On the date of occurrence appellant Vikas Sharma came to the house of Abhishek and asked his mother to send Abhishek with him. The mother permitted Abhishek to go with Vikas without any hesitation or fear in her mind obviously due to the reason that Vikas Sharma was just like a family member.
(v) Abhishek was given allurement of showing some pornographic movie by the appellants which fact is evident from the recovery of CD player at the instance of accused persons.
(vi) It is but natural for a young boy of 18 years to become curious and he may be easily allured for seeing such movie.
(vii) After Abhishek left with appellant Vikas Sharma, his mother who was not feeling well, took some medicine and went to sleep. Under the influence of medicine she slept till 2.45 p.m. when she got awake and did not find Abhishek, she immediately tried to contact her husband who being a practicing lawyer at tehsil court, Jansath was at Tehsil Jansath at that time.
(viii) Her mobile phone was not working so she contacted her husband by mobile phone of her landlord and informed him abou Abhishek. On receiving such information the father of the deceased Pradeep Garg, advocate, immediately returned back to his house and asked about Abhishek from his wife and daughter.
(ix) The father came to know that Abhishek had yet not returned. He was also informed that Abhishek had not even gone to his college. Hearing this the father alongwith his wife started searching his son. During search he was informed by witnesses Rakesh Agrawal (W-6) to have seen Abhishek going with appellant Vikas towards Prakash Chowk.
(x) The parents of deceased Abhishek proceeded towards Prakash Chowk, but did not find their son there. On proceeding further. witnesses Pramod Kumar Sharma and Ann j Kumar (P.W. 3) met them and informed that they had seen Abhishek in the company of appellants Vikas Sharma, Rajesh Saini, Aashu Gupta and Arvind in front of Swagat Hotel.
(xi) The parents searched their son in Swagat Hotel and at other places but in vain.
(xii) Leaving his wife at home, the father of deceased once again rushed to tehsil Jansath in the night of 27.11.2003 and went to the houses of appellants Aashu Gupta, Rajesh and Vikas but none of them was found at his house.
(xiii) The father returned back to Muzaffar Nagar and on the next day i.e. on 28.11.2003 in the early morning at about 5.00 a.m. he once again visited the houses of appellants Rajesh, Vikas and Aashu but neither any one was found nor any information about Abhishek was received.
(xiv) Apprehending that his son might have been abducted for ransom or might have been killed, the father lodged the F.I.R. at 9.15 a.m. on 28.11.2003 naming all the appellants.
(xv) The police arrested Vikas Sharma, Rajesh Saini and Aashu Gupta from the bus stand of tehsil Jansenist at about 10.00 a.m. On 29.11.2003.
(xvi) The bus stand, being a public place, a large crowd gathered there at the time of their arrest. The informant also reached there and before the crowd, the informant and the police, all the three appellants confessed their guilt by stating that they had abducted Abhishek for ransom and had killed him. They also stated that they had chopped off Abhishek in two parts and had buried the two parts separately under the sugar cane fields of Vishnu Sahai and Dinesh Kamboj and they could help the police in discovery of dead body.
(xvii) The police took the appellants in a jeep towards the fields of Vishnu Sahai and Dinesh Kamboj and in presence of several witnesses including the informant, both the parts of dead body of Abhishek were recovered at the instance of the appellants.
(xviii) Several criminating articles like Aari, 3 blades of Aari having blood stains on it, green coloured jute rope tied on the legs, hands and neck of the deceased, used soap, plastic hand gloves, clothes and shoes and socks of the deceased, he was wearing at the time of occurrence, were also found inside the same polythene bags in which the parts of the dead body had been kept.
(xix) The father of the deceased, who was present on the spot at the time of recovery, identified the body as that of his son.
(xx) The dead body was sent for postmortem. The description of ante-mortem injuries in the post-mortem report shows that Abhishek was alive at the time when he was chopped of into two parts.
(xxi) During investigation the I.O. took into custody the visitor's register of Swagat Hotel and it was found that room No. 209 of Swagat Hotel was booked in the name of some other person namely Rohit Gupta. On inquiry, the address of Rohit Gupta given in the register was found fake and false.
(xxii) Recovery of CD player and the wires leads etc. from the tube well at the instance of Raj Kumar, the brother of appellant Rajesh, finds corroboration with the recovery memo Ex. Ka. 12 having signatures of appellants - Rajesh and Rajkumar on it.
(xxiii) Both the suit cases have been recovered by the police from the shop of appellant Rajesh Saini. Recovery of suitcases at the instance of accused is found fully proved by the testimony of R.W. 10 - Zaheer Shah.
(xxiv) The gold ring having "Lovey" engraved on it was recovered from the possession of the appellant Arvind who was arrested on 2.12.2003. "Lovey" was the pet name of deceased Abhishek.
(xxv) The father of deceased Abhishek being a financially sound person, the possibility of abduction of his son for ransom cannot be ruled out.
(xxvi) There is ample evidence on record that the appellants and the deceased had been lastly seen together.
(xxvii) Although there is no evidence on the record with regard to the fact that on which date and when the demand of ransom was made and even assuming for the sake of arguments that the appellants had not abducted Abhishek for ransom, the fact that Abhishek was taken away by the appellant Vikas Sharma from his house and Abhishek was lastly seen in the company of appellants Vikas, Aashu and Rajesh, has been well established by the prosecution through its cogent and convincing evidence.
(xxviii) The post-mortem of deceased Abhishek has been conducted on 29.11.2003 at 7.30 p.m. and the probable time since death as mentioned in the post-mortem report is about two days which means that Abhishek might have been killed in the evening of 27.11.2003. This clearly indicates that the time gap between the death of Abhishek and when he was lastly seen in the company of accused appellants is very small. The Hon'ble Supreme Court in the case of Mahavir Singh v. State of Haryana MANU/SC/0506/2014 : (2014) 6 SCC 716 : (AIR 2015 SC (Supp) 1460) has held as under:--
"The theory of "last seen together", normally comes into play only in a case where the time gap between the point of time when accused and deceased were seen alive and when deceased was found dead is small. When said time gap is very small, there may not be any possibility that any person other than the accused, may be the author of crime."
(xxix) The accused appellants have given no explanation as to when and where the deceased Abhishek parted with their company.
(xxx) It is noteworthy that in reply to question No. 2 put to the appellant, that accused Vikas Sharma had visiting terms with informant's family and Abhishek used to call Vikas "Chacha', Vikas Sharma has stated that this is wrong in total contradiction of the statement of the defence witness Vinay Kumar (D.W. 1) who has stated that he, Vikas and informant's brother Manoj Garg were classmates and Vikas had visiting terms with informant's family.
(xxxi) All the appellants have given evasive answers to the questions put to them under Section 313, Cr.P.C. by simply stating or
(xxxii) In answer to the question as to why this criminal case was instituted against them, Vikas Sharma stated that the police had committed "maarpeet" causing injuries to them and in order to save their skin the police has falsely implicated them. Arvind Saini has stated that due to his relation with Rajesh Saini, who is his "Behnoi" the police falsely implicated him. Rajesh Saini has stated that the police in order to obtain his confession forcefully had illegally taken away his mother, wife and sister and thereafter falsely implicated him in order to save them.
(xxxiii) The aforesaid answers given by the appellants to the question asking for the reason about their false implication in this case, neither appear satisfactory nor inspire confidence.
(xxxiv) Admittedly there was no previous enmity between the appellants and the informant's family. To the contrary there existed family terms between informant's family and appellant Vikas. All the appellants are named in the F.I.R. There is no reason as to why the family of victim would falsely implicate innocent persons while exonerating the real culprit in such a heinous murder case.
(xxxv) The fingerprint expert had collected the finger prints from various places of room No. 209 of Swagat Hotel i.e. the place of occurrence. The fingerprints of accused-appellants were also taken before CJ.M. The fingerprint expert Dr. Rajendra Singh has been produced as P.W. 12. He is an independent witness and has categorically stated that the fingerprints collected from the room of Swagat Hotel got matched with the fingerprints of accused-appellants.
(xxxvi) The presence of all the appellants at room No. 209 of Swagat Hotel is well established by their finger prints found at various places. This fact is sufficiently proved by the testimony of fingerprint expert P.W. 12 who is an independent witness and who has no reason to falsely implicate the appellants. All the appellants in reply to question numbers 61 and 63, asked in respect of evidence collected by fingerprint expert and his report have simply stated
(xxxvii) In Munna Kumar Upadhyay v. State of A.P. MANU/SC/0524/2012 : (2012) 6 SCC 174 : (AIR 2012 SC 2470) the Hon'ble Supreme Court has held as under:
"Fingerprints of accused are found present at crime scene, at place where accused was not supposed to be present in the normal course and the accused fails to explain existence of his fingerprints at such place, this circumstance points towards his involvement in crime."
(xxxviii) Learned counsel for the appellants have laid much stress on the fact that the accused persons were taken to the room No. 209 of Swagat Hotel by the I.O. before their finger prints were collected by the fingerprint expert and that was the reason why their fingerprints were found at the room.
(xxxix) We do not find any merit in the aforesaid arguments for the reason that I.O. - P.W. 13, during his cross examination has explained this situation satisfactorily. The question put to I.O. in this regard and their answers are reproduced below:
(Vernacular matter omitted...Ed.)
(xl) The taxi driver (P.W. 8), the photographers (P.W. 9), the two investigating officers (P.W. 7 & P.W. 13), P.W. 10 Zahir Shah, who is the witness of recovery of both suitcases from Sunny Cloth House, and P.W. 3 Anuj Kumar, the witness of last seen, all of them are entirely independent witnesses, having no enmity with any of the accused persons. There appears no reason for them to come to court and support the prosecution case just for falsely implicating the appellants.
57. Thus, the sequence of all the events appears to have formed a complete chain with no unreasonable time gap in between and with no link missing. Moreover, the appellants by giving evasive replies during their statements under Section 313, Cr.P.C, have provided the missing links, if any.
58. In the case of Deonandan Mishra v. State of Bihar, MANU/SC/0030/1955 : AIR 1955 SC 801 decided as far back in 1955, the Hon'ble Apex Court has laid down the law which has been reiterated in its several judgments that:
"A false explanation of circumstances by the accused in his examination may itself serve as a link to complete the chain of events leading to his conviction."
59. The testimony of defence witness - D.W. 1 does not inspire confidence in us for the reason that D.W. 1 has stated about the alibi of appellant Vikas whereas Vikas himself has not uttered a single word about this during his statement under Section 313, Cr.P.C. D.W. 1 has also stated about the newspaper reports and the defence on the basis of his statement and the news and photographs published in some newspapers of 29.11.2003 showing the appellant Rajesh Saini in police custody has assailed the trustworthiness of prosecution case in respect of date of arrest of appellants. Learned counsel for the appellants has tried to assail the prosecution story of arrest of appellants on 29.11.2003 on the ground that if they were arrested on 29.11.2003 and the dead body was recovered on 29.11.2003, how could the news about the recovery at the instance of accused appellants was published in newspaper dated 29.11.2003.
60. Though we, do not find any force in the aforesaid arguments in wake of the well settled legal position that newspaper reports are only hearsay evidence and they are not substantial piece of evidence as has been held by the Apex Court in the case of Quamarul Islam v. S.K. Kanta, MANU/SC/0417/1994 : AIR 1994 SC 1733 that:
"Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Evidence Act."
However, in the interest of justice, we perused all the newspapers' cutting available on record which clearly show that in none of these newspaper cuttings there is any report about recovery of dead body.
In the report of 'Dainik Jagran' the file photo of deceased Abhishek and the photo of police party alongwith some villagers searching for Abhishek is published. Some other photographs in this newspaper include the photos of father of deceased, of the crowd gathered at police station, of appellant Rajesh Saini along with a police constable and photo of an empty suitcase. The news report published in this newspaper clearly indicates that the S.S.P., Muzaffar Nagar had given statement before the journalists that he is unable to say anything about the occurrence unless the dead body is recovered which clearly indicates that dead body had not been recovered till 28.11.2003. So far as the photograph of appellant Rajesh Saini in the newspaper is concerned, it appears that the police might have interrogated him before his arrest and during interrogation he might have been taken to the fields. In this regard the explanation of I.O. in reply to question put to him during his cross-examination appear satisfactory. The I.O. has stated that:-
(Vernacular matter omitted...Ed.)
It is noteworthy that the headings of all these news items too, clearly indicate the involvement of appellants in this case. The caption in 'Dainik Jagran' is (Vernacular matter omitted...Ed.). In another newspaper the news has been published with the caption (Vernacular matter omitted...Ed.). If the newspaper report is to be believed then the prosecution story becomes all the more reliable.
61. So far as the argument with regard to absence of motive is concerned, the prosecution, from the very beginning, has come with a clear case that the motive behind the crime was abduction of deceased Abhishek for ransom and when the deceased after reaching inside the hotel room and smelling something fishy, tried to resist, he was overpowered and thereafter brutally murdered by the appellants. Almough the father of the deceased has fairly admitted that he had not received any phone call for demand of ransom but in the F.I.R. he has clearly expressed his apprehension about the abduction of his son by the appellants. In the case of Sewa v. State of U.P.; 2002 (I) UPCrR 384 a Division Bench of this Court has held that motive may be known only to the offender and none else and for the reason alone that the motive has not been proved by the prosecution, the entire prosecution case cannot be discarded as suspicious.
62. In Mani Kumar Thapa v. State of Sikkim; MANU/SC/0686/2002 : AIR 2002 (SC) 2920 the Supreme Court has held that "when the prosecution case is proved against the accused by other circumstantial evidence, necessity to prove motive is not required."
63. During the course of argument, the defence has pointed out towards, some contradictions and omissions in the statements of witnesses in order to demolish their credibility. However, all these are minor contradictions and minor discrepancies are bound to occur in every case, due to the normal errors of observations, namely errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence.
64. Sri V. C. Srivastava, learned counsel for the appellants has repeatedly contended that a hook was also found entangled in the button of shirt of deceased recovered with his dead body which indicates the involvement of some woman in this crime because normally hook is found only in ladies garments.
65. We do not find any force in such argument. The presence of appellants in the company of deceased in room No. 209 of Swagat Hotel has been found fully proved. What happened on that fateful day is only within the knowledge of appellants, but none of them have stated a single word. Moreover, the defence has not cross-examined the I.O. on this point that whether he had made any investigation in such direction i.e. about involvement of any woman in this case, therefore, now the defence cannot be permitted to raise this issue.
66. In Mahavir Singh's case (AIR 2014 SC (Supp) 1460)(supra) also the Apex Court has observed as under:-
"It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised."
67-68. Learned counsel has tried to assail the prosecution case on one more ground by relying on the case of Abdul Hafeez v. State of A.P. : MANU/SC/0091/1982 : (1983) SCC 143 : (MANU/SC/0091/1982 : AIR 1983 SC 307) and has challenged the prosecution case about recovery of dead body at the instance of appellants by haranguing that it was a joint disclosure which is not admissible.
69. There appears no force in the aforesaid arguments.
70. In State (NCT of Delhi) v. Navjot Sandhu : MANU/SC/0465/2005 : (2005) 11 SCC 600 : (AIR 2005 SC 3820) the Hon'ble Supreme Court has laid down the law as under:
"Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, perse, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27."
71. In paragraph 146 of the aforesaid judgment, the Apex Court has discussed the case of Mohd. Abdul Hafeez v. State of A.P.; MANU/SC/0091/1982 : (1983) 1 SCC 143 : (AIR 1983 SC 367)(supra) cited by learned counsel for the appellants and has held that:
"there is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law."
72. Accordingly we do not find any illegality in the admissibility of joint disclosure statement by the appellants in this case specially in view of the fact that the dead body along with other incriminating articles and the 'aari' used as weapon of murder have been recovered by the police after such disclosure.
73. The Apex Court in the case of A. N. Venkatesh and another v. State of Karnataka; MANU/SC/0468/2005 : 2005 SCC (Cri) 1938 : (AIR 2005 SC 3809) has held that even if the disclosure statement is held to be not admissible under Section 27 due to some reason, still it is relevant under Section 8 of the Evidence Act. The evidence of the circumstances, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found is admissible under Section 8 irrespective of the fact whether the statement made by the accused falls within the purview of Section 27 or not. Even if, the disclosure statement is held to be not admissible under Section 27 of Evidence Act, still it is relevant under Section 8 of Evidence Act.
74. Keeping in view all the facts and circumstances of the case we are of the considered opinion that the prosecution has been able to comprehensively and reliably establish the chain of circumstances. The evidence produced by the prosecution does not leave any major loop holes in the case of prosecution. With the help of its oral and documentary evidence, the presence of appellants at the scene of crime, their intention of committing the crime, the gruesome manner in which they committed the murder and later on tried to destroy or conceal the evidence, the recovery of blood stained clothes of the deceased along with several other incriminating articles like the 'Aari', rope, handgloves, blades of aari, piece of soap etc. along with dead body of Abhishek cut into two parts and finally the conduct of appellants of absconding from their houses, all these facts have been well established by the prosecution. The learned trial court also after a detailed appreciation of evidence, has found the chain of circumstances complete and conclusively indicating towards the guilt of appellants. We do not find any error in the findings arrived by learned trial court, so far as the conviction of all the appellants under Sections 302/34, 364 and 201, I.P.C. is concerned.
75. Accordingly, the conviction of all the appellants in the aforesaid sections of I.P.C. is hereby affirmed.
76. Now we proceed to examine the propriety of sentence imposed by the trial court. The trial court has awarded death sentence to all the appellants for their conviction under Section 302/34, I.P.C. and a fine of Rs. 20,000/- has also been imposed on each of them. For their conviction under Section 364, I.P.C. they have been awarded life imprisonment along with a fine of Rs. 10,000/- imposed on each. In default of payment of fine further imprisonment of two years has been awarded to all of them. Seven years R.I. along with a fine of Rs. 10,000/- has been awarded to all the appellants for their conviction under Section 201, I.P.C. and in default of payment of fine one year imprisonment is awarded to all of them. All the sentences are to run concurrently.
77. Except death penalty, all the aforesaid sentences and fine as awarded by the trial court neither appear excessive nor unreasonable to us in view of the gravity and heinous nature of the offence in this case. However, the death sentence awarded by learned trial court appears excessive in view of the legal position that death sentence should be awarded in rarest of rare cases and the courts should follow the guidelines as laid down by Hon'ble Supreme Court in a series of judgments. The Apex Court in the landmark case of Bachan Singh, MANU/SC/0111/1980 : (1980) 2 SCC 684: (AIR 1980 SC 898) has laid down the guidelines and the sentencing norms. In a recent judgment rendered in the case of Sunil Dutt Sharma v. State (Government of NCT of Delhi); MANU/SC/1030/2013 : (2014) 4 SCC 375 : (AIR 2014 SC (Supp) 1554) the Apex Court has reiterated the law relating to death penalty and has summarized the circumstances under which life imprisonment should be awarded instead of death penalty.
78. According to the Apex Court the mitigating factors under which the sentence of life imprisonment instead of death sentence is to be awarded, are as follows:
(I) The young age of the accused.
(II) The possibility of reforming and rehabilitating the accused.
(III) The accused had no prior criminal record.
(IV) The accused was not likely to be a menace or threat or danger to society or the community.
(V) A few other reasons need to be mentioned such as the accused having been acquitted by one of the courts.
(VI) The crime was not premeditated.
(VII) The case was one of circumstantial evidence.
79. Testing the facts of the instant appeal on the touch stone of guidelines as cited above and on consideration of the totality of circumstances, we are of the firm view that the present case does not fall within the category of 'rarest of rare cases' attracting death penalty due to presence of two factors as cited above.
80. First, the present case, undisputedly is one of the circumstantial evidence and second, all the appellants have no prior criminal antecedent. Therefore, it appears expedient in the interest of justice that the extreme punishment of death penalty awarded to the appellants under Section 302/34, I.P.C. be substituted with sentence of imprisonment for life.
81. Accordingly the appeal is partly allowed. The impugned judgment and order dated 1.2.2007 is modified to the extent that the death penalty awarded to the appellants under Section 302/34, I.P.C. is converted to imprisonment for the whole of the remaining natural life of the appellants, subject however to the condition that the prisoner would be eligible to any commutation and remissions that may be granted by the Hon'ble President and the Hon'ble Governor under Articles 72 and 161 of the Constitution of India or of the State Government under Section 433-A of the Code of Criminal Procedure for good and sufficient reasons. Subject to the aforesaid observations the appeal is partly allowed. The reference No. 6 of 2007 for confirming the death sentence is rejected.

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