Ram Niwas vs State
2013 Latest Caselaw 4471 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Reserved on: 23rd July, 2013
%                             Date of Decision: 27th September, 2013

+            CRIMINAL APPEAL No.1272/2011
RAM NIWAS                                        ..... Appellant
                     Through:     Mr. Ajayinder Sangwan, Mr.Tarunesh
                                  Kumar & Mr. Dushyant Yadav,
                                  Advocates
                     Versus

STATE                                             ..... Respondent

                     Through:     Mr. Sanjay Lao, APP for the State

             CRIMINAL APPEAL No.1317/2011

SATISH @ ATAL                                    ..... Appellant
                     Through:     Mr. Ajayinder Sangwan, Mr.Tarunesh
                                  Kumar & Mr. Dushyant Yadav,
                                  Advocates

                                  Versus
STATE                                             ..... Respondent
                     Through:     Mr. Sanjay Lao, APP for the State



             CRIMINAL APPEAL No.1469/2011

CHARAN SINGH                                     ..... Appellant
                     Through:     Ms. Saahila Lamba, Advocate

                                  Versus

STATE (G.N.C.T. of Delhi)                            ..... Respondent
                Through:          Mr. Sanjay Lao, APP for the State


              CRIMINAL APPEAL No.818/2012

RAM SNEHI @ PINTOO                               ..... Appellant
              Through:          Mr. R.K. Dikshit, Advocate

               Versus

STATE (G.N.C.T. of Delhi)                        ..... Respondent
               Through:         Mr. Sanjay Lao, APP for the State

CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J:

1. All the four appellants, Ram Niwas, Ram Snehi @ Pintoo, Satish

@ Atal and Charan Singh were tried on charges under Section 120B

of the Indian Penal Code (‗IPC' for short) and Sections

364/302/201/404 of the IPC for committing the murder of Avkash

Singh.

2. On trial, learned Additional Sessions Judge-I (East), Delhi found

all the accused persons/appellants guilty of the offences charged vide

judgment dated 09.08.2011. Vide order on sentence dated 16.08.2011,

each of them were sentenced to undergo rigorous imprisonment for life

for the offence under Section 302 IPC read with Section 120-B IPC

and also to pay a fine of Rs.5000/- each for the said offence and in

default of payment of fine, they shall further undergo simple

imprisonment for six months each. All the appellants were further

sentenced to undergo rigorous imprisonment for a period of five years

for the offence under Section 201 IPC read with Section 120-B IPC

and to pay a fine of Rs.500/- each, failing which they shall further

undergo simple imprisonment of one month each. The appellants have

also been sentenced to undergo rigorous imprisonment for a period of

five years for offence under Section 364 IPC read with Section 120-B

IPC and to pay a fine of Rs.1000/- each for the said offence, failing

which they shall further undergo simple imprisonment for one month

each. The appellants were also sentenced to undergo rigorous

imprisonment for a period of five years under Sections 404 IPC read

with Section 120-B IPC and to pay a fine of Rs.1,000/- and in default

of payment of fine, to further undergo simple imprisonment of one

month each. Out of the total fine, a sum of Rs.25,000/- was directed to

be awarded to the wife of the deceased. All the sentences were ordered

to run concurrently.

3. Briefly stated, the case of prosecution is that on 15.04.2006 at

about 2.00 p.m., the appellant Ram Niwas along with his friends had

hired Maruti van of the deceased Avkash Singh for going to village

Dinapur, P.S. Babarala, District, Badaun, U.P. They were to return on

16.04.2006. However, when the deceased did not return till

18.04.2006, his father Dharambir lodged a missing report at P.S.

Mandawali vide DD No.45A. Thereafter, he searched for his son on

his own at various places. However, the deceased could not be traced.

On 21.04.2006, Smt. Prakashi Devi, mother of the deceased made

statement at P.S. Mandawali. On the basis of the said statement, the

present case was registered. In the said statement, she suspected that

her son had been kidnapped by Ram Niwas and his friends. The

investigation was initially conducted by SI Rupesh Khatri, who went to

P.S. Soro, District Etah, U.P. where the Maruti van of the deceased

was found confiscated in case FIR No.95/2006 dated 23.04.2006 under

Sections 41/102 of the Criminal Procedure Code ( ‗Cr. P.C.' for short)

and on enquiry it was revealed that the Maruti van was abandoned by

its driver while it was being chased by the police party. The name of

the driver was revealed as Ram Niwas. A roving enquiry was

conducted by the father of the deceased in which it was revealed to

him, when he went to village Dinapur, that his son was last seen with

the residents of that village namely, Ram Niwas, his brother Satish @

Atal, Pintoo, Pokhpal @ Pokha and Charan Singh at village Karchhali.

Thereafter on 18.05.2006, second I.O. SI Mangesh Tyagi came to

know from P.S. Hayat Nagar, District Moradabad that a human

skeleton was found in the forests of the Village Karchhali along with

one underwear, baniyan, pair of socks and a gamcha. Dharambir,

father of the deceased identified the skeleton and clothes to be of his

son except the gamcha at Civil Hospital Mortuary, Moradabad. One of

the appellants-convicts Ram Snehi was lodged at District Kasganj in

case FIR No.129/2006 under Section 307 IPC and after obtaining

permission of the Court, he was arrested and his disclosure statement

was recorded wherein he disclosed that he along with other co-

accused/appellants, namely, Ram Niwas, Satish and Pokhpal had hired

the van of the deceased and later committed his murder and robbed the

van and also robbed his gold chain, watch, purse and took off his

clothes. Upon the skeleton, on 10.06.2006, further postmortem was

got conducted at LBS Hospital and thereafter all the accused persons

except Pokhpal were arrested. One brown shoe worn by the deceased

was recovered on pointing of the appellant-Ram Snehi from an open

space. The golden wrist watch of the deceased was got recovered by

the appellant-Charan Singh. The gold chain of the deceased was

recovered from the house of the appellant-Ram Niwas on his pointing

out and the pant and shirt of the deceased along with papers of the van

were got recovered from the house of appellant-Satish @ Atal. On

completion of investigation, chargesheet was filed against all the

appellants/accused persons under Sections 365/395/302/201/120-B

IPC. Thereafter, on consideration of material on record, a charge

under Section 120-B IPC and Sections 364/302/201/404 IPC read with

Section 120-B IPC were framed against all the appellants, on which

they were tried by learned trial court, leading finally to the passing of

the impugned judgment and order on sentence.

4. Learned counsel for the appellants urged that in the cases based

on circumstantial evidence, entire chain of events must be completed

beyond reasonable doubt to convict a person. For convicting a person

for any offence, the guilt must be proved beyond all reasonable doubts

and the chain of events must be complete. There is a delay in lodging

of the FIR since as per Prakashi (PW-1), the deceased was supposed to

come back on 16.04.2006. But his first missing report was lodged on

18.04.2006 whereas the FIR was lodged on 21.04.2006. There is a

manipulation in the FIR wherein it has been mentioned that the

deceased was wearing brown colour shirt, pant and red colour shoes,

gold chain and watch, whereas, in the missing report dated 18.04.2006,

it has been mentioned that the deceased wore brown colour shirt,

brown shoes and there is no mention of gold chain and a wrist watch.

Statement of Dharambir (PW-2) is self-contradictory, as he himself has

given different version about knowing Ram Niwas. It is next

contended that in the case based on last seen evidence, the proximity of

time is a relevant factor for convicting a person on the basis of last

seen evidence. The time gap must be so small that possibilities of any

other person being the author of the crime must become impossible.

In the present case, allegedly the appellant was last seen on 15.04.2006

and the skeleton was found on 22.04.2006 and thus in such a case, the

possibility of some other person being the author of crime cannot be

ruled out. Also in such a circumstance, it was not possible, within a

week, for a dead body to become skeleton and the same has been

opined by Dr. S.K. Verma (PW-10) who has stated that it would take at

least two months to reach to the stage of skeleton. It is further

contended that the recovery of clothes including underwear, baniyan,

pair of socks and gamcha was planted since as per PW-11, no cloth

was worn by the skeleton. As per the testimony of SI Tirath Singh

(PW-18) and Constable Hansraj (PW-24), a pair of socks was

recovered near skeleton whereas as per Dr. S.K. Verma (PW-10), one

leg was missing which also suggest that the socks were planted when

the leg was itself missing. There is a discrepancy in the report of the

doctors. Dr.Jagpal Singh Yadav (PW-14) who conducted the first post

mortem on 23.04.2006 found 26 teeth whereas PW-10 has mentioned

that all 32 common teeth were present except upper two. There is a

discrepancy in the statement of prosecution witnesses about bringing

the van to Delhi and deposition at the malkhana. The identification of

the appellants is also highly doubtful and Rambresh (PW-23) who is an

independent witness is a planted witness. The case of the prosecution

that the appellants were absconding also does not come to the rescue of

the prosecution. It is quite possible that the suspects were running out

of fear of police arrest and harassment. The police have shown

recovery of the one item from every appellant for making each one

liable also shows their manipulation. The recoveries of articles is also

highly suspicious since some of the articles referred were even not

mentioned in the missing report dated 18.04.2006. No independent

witness had been made for the recoveries and no site plans were

prepared for the same. The recovery of pant and shirt from the

appellant-Satish is also doubtful.

5. Learned counsel for the appellants lastly contended that the TIP

of the recovered articles also makes the recoveries suspicious and

unreliable. The DNA report claiming that the skeleton was of the

deceased is also suspicious since the part which was sent for DNA, i.e.

femur and lower jaw when teeth were itself in dispute. Also the said

DNA report cannot be relied upon as it was neither tendered nor

accepted in evidence.

6. Per contra, learned APP for the State contended that the

appellants had been identified by the complainant in the Court as the

person who had hired the vehicle and had taken the deceased along

with them on 15.04.2006. The deceased did not return on 16.04.2006

or thereafter and a skeleton was found on 22.04.2006 from a place

which was near the native village of one of the appellant coupled with

the fact that all the appellants were missing from their houses. It clearly

establishes that the appellants had kidnapped the deceased, robbed him

of his van and other articles and committed his murder.

7. Learned APP further contended that the appellants have got

recovered various articles from their respective possession. The body

of the deceased was found in jungle area. In such a case, possibility of

the body having been eaten by the birds and animals cannot be ruled

out. The body has been identified as to be of the deceased's on the

basis of the identification by the father, clothes of the deceased and the

DNA report. It was lastly contended by learned APP that the fact of

apprehension of van as well as of the appellant-Ram Niwas absconding

from the spot has been proved.

8. We have given our anxious thought to the rival submissions

made by learned counsel for the appellants and learned APP for the

State and also carefully gone through the material on record.

9. We shall deal with the various circumstances, as pointed out by

learned counsel for the appellants one by one.

I Circumstantial Evidence

10. Admittedly, the whole case against the appellants rests on

circumstantial evidence. The law relating to circumstantial evidence is

well settled. In dealing with circumstantial evidence, there is always a

danger that conjecture or suspicion lingering on mind may take place

of proof. Suspicion, however, strong cannot be allowed to take place

of proof and, therefore, the Court has to judge watchfully and ensure

that the conjectures and suspicions do not take place of proof.

However, it is no derogation of evidence to say that it is circumstantial.

Human agency may be faulty in expressing picturization of actual

incident but the circumstances cannot fail. Therefore, many a times, it

is aptly said that ―men may tell lies, but circumstances do not‖. In

cases where evidence is of a circumstantial nature, the circumstances

from which the conclusion of guilt is to be drawn should, in the first

instance, be fully established. Each fact must be proved individually

and only thereafter the Court should consider the total cumulative

effect of all the proved facts, each one of which reinforces the

conclusion of guilt. If the combined effect of all the facts taken

together is conclusive in establishing the guilt of the accused, the

conviction would be justified even though it may be that one or more

of these facts by itself/themselves, is/are are not decisive. The

circumstances proved should be such as to exclude every hypothesis

except the one sought to be proved. But this does not mean that before

the prosecution case succeeds in a case of circumstantial evidence

alone, it must exclude each and every hypothesis suggested by the

accused, howsoever, extravagant and fanciful it might be. There must

be a chain of evidence so complete as not to leave any reasonable

ground for conclusion consistent with the innocence of the accused and

it must be such as to show that within all human probability, the act

must have been done by the accused. Where the various links in a

chain are in themselves complete, then a false plea or false defence

may be called into aid only to lend assurance to the Court. If the

circumstances proved are consistent with the innocence of the accused,

then the accused is entitled to the benefit of doubt. However, in

applying this principle, distinction must be made between facts called

primary or basic on the one hand and inference of facts to be drawn

from them on the other. In regard to proof of basic or primary facts,

the Court has to judge the evidence and decide whether that evidence

proves a particular fact or not and if that fact is proved, the question

arises whether that fact leads to the inference of guilt of the accused

person or not. In dealing with this aspect of the problem, the doctrine

of benefit of doubt applies. Although there should be no missing links

in the case, yet it is not essential that every one of the links must

appear on the surface of the evidence adduced and some of these links

may have to be inferred from the proved facts. In drawing these

inferences or presumptions, the Court must have regard to the common

course of natural events, and to human conduct and their relations to

the facts of the particular case.

II Last seen

11. With the development of law, the theory of last seen has become

a definite tool in the hands of prosecution to establish the guilt of the

accused. Undoubtedly, the last seen theory is an important event in the

chain of circumstances that would completely establish and/or could

point to the guilt of the accused with some certainty. But this theory

should be applied by taking into consideration the case of prosecution

in its entirety and keeping in mind the circumstances that precede and

follow the point of being so last seen.

12. Prakashi (PW-1), the mother of deceased Avkash Singh, in her

testimony stated that on 15.04.2006 at about 2.00 p.m., the appellant-

Ram Niwas had come to her house and had requested her son Avkash

Singh (deceased) for hiring Maruti van to attend a function in Village

Dinapur, District Aligarh. Accordingly, her son took the Maruti van

along with Ram Niwas and stated that he will return back by

16.04.2006. She further stated that at the time of departure, her son

was wearing gold chain, golden wrist watch, badami colour pant and

shirt and brown colour leather shoes. She further stated that she knew

Ram Niwas from prior thereto as earlier on 03.04.2006 also, he had

hired their Maruti van and at that time her son Avkash had returned

back on 05.04.2006. She also stated that in between 03.04.2006 to

15.04.2006 also, Ram Niwas @ Ramu had visited their house on one

occasion. However, when her son did not return back either on

16.04.2006 or 17.04.2006, so on 18.04.2006, her husband lodged a

missing report about him in PS Mandawali. They, thereafter, make

frantic search for their son, but no clue could be found. Then on

21.04.2006, she lodged an FIR alleging that appellant-Ram Niwas has

abducted her son.

13. In her cross-examination, she, however, stated that the appellant-

Pintoo was also present along with Ram Niwas at that time. She

further stated that her husband and daughter-in-law were also present

in the house when the appellant had come to hire their Maruti van. She

further stated that accordingly the accused persons had stayed in their

house for 10-15 minutes and had talk to her and her husband.

14. Dharambir (PW-2), father of the deceased, has also deposed on

identical lines as Prakashi (PW-1). He also reiterated that the

appellant-Ram Niwas had come to his house on 15.04.2006 at about

2.00 p.m. to hire a Maruti van. He further stated that on 10.04.2006,

Ram Niwas and Pintoo had come to his house as they wanted to hire

their Maruti van for going to Agra and he stated them to talk to his son

Avkash Singh in that regard. He further stated that when his son did

not return back till 17.04.2006, he went to Shakarpur where Ram

Niwas used to deal in golgappa and from where he came to know that

Ram Niwas along with three other associates had gone along with his

son. Accordingly, on 18.04.2006, he lodged a missing report at PS

Mandawali vide DD No.45A, copy of which is Ex.PW2/A and went to

Village Dinapur, the village of appellant-Ram Niwas. There mother of

Ram Niwas met him and stated that her son had not visited her house.

However, some other persons of the village informed him that they

may be present at Village Karchhali. He accordingly went to Village

Karchhali which was about 50-60 kms. away from Village Dinapur and

from there, certain persons informed him that a van had come in their

village and he should verify the facts from one Shopali. He

accordingly went to house of Shopali who told him that Ram Niwas

had come to his house on the night of 15.04.2006 along with his

brother Satish and two other persons besides one driver in a Maruti

van. He further stated that they all stayed at their house and after

having meals, left in the night itself along with his son Charan Singh.

He further stated that he also saw a photograph of a person in the house

who Shopali identified to be of his son Charan Singh. Thus, sensing

that his son might have been kidnapped, so he informed his son

Pradeep in this regard and by the time, he returned back to his house on

21.04.2006, a case was got registered by his wife.

15. It has been contended with some vehemence that the prosecution

has, relying upon last seen theory, must essentially establish the time

when the accused and the deceased were last seen together as well as

the time of death of the deceased. If these two aspects are not

established, the very application of the last seen theory would be

impermissible and would create a major dent in the case of

prosecution.

16. The application of the last seen theory requires a possible link

between the time when the person was last seen alive and the fact of

death of the deceased coming to light. There should be a reasonable

proximity of time between these two events. This proposition of law

does not admit of much excuse but what has to be seen is that this

principle is to be applied depending upon the facts and circumstances

of the given case. The last seen theory comes into play where time gap

between the point of time when the accused and the deceased were last

seen alive and when the deceased is found dead is so small that

possibility of any person other than the accused being the author of the

crime becomes impossible.

17. The reasonableness of the time gap is, therefore, of some

significance. If the time gap is very large, then it is not only difficult

but even may not be proper for the Court to infer that the accused had

been last seen alive with the deceased and the former, thus, was

responsible for commission of the offence. The purpose of applying

these principles, while keeping the time factor in mind, is to enable the

Court to examine that where the last seen together and the time when

the deceased was found dead is short, it inevitably leads to the

inference that the accused person was responsible for commission of

the crime and the onus was on him to explain how the death occurred.

18. In the facts of the present case, the time factor is not important

because both PW-1 and PW-2 have stated that their son (deceased) was

accompanied by appellant-Ram Niwas and his associates on

15.04.2006, who had come to their house to hire their vehicle. The

evidence that the gold chain of the deceased was found while being in

possession of Ram Niwas further shifts the burden upon him as to how,

when and in what manner he came into possession of the gold chain or

when and how the deceased parted with his company. However, in

view of the depositions of Prakashi (PW-1) and Dharambir (PW-2)

who have deposed about the factum of ‗last seen' coupled with

recovery of gold chain from Ram Niwas, the onus got shifted on the

appellant-Ram Niwas to show that there existed some circumstances

by virtue of which they parted from the company of the deceased. This

onus the appellant has certainly failed to discharge.

III Motive

19. Learned counsel for the appellants submitted that the Court

below have erred in convicting the appellant, even though there is no

evidence or motive against them. Learned counsel for the appellants

also submitted that in a case of circumstantial evidence, the issue of

motive to commit the crime in question, is of paramount importance,

which could not be established in the instant case. The parameters laid

down by this Court for deciding such a case of circumstantial evidence

have not been applied.

20. Undoubtedly, in the case of circumstantial evidence, all the

circumstances must be fully established and the facts so established

must be consistent with the hypothesis regarding the guilt of the

accused. The circumstances so established should exclude every other

possible hypothesis except the one sought to be proved. The

circumstances must be conclusive in nature with regard to the motive.

We observe that in a case of circumstantial evidence, motive assumes

great significance and importance for the reason that the absence of

motive would put the court on its guard and cause it to scrutinize each

piece of evidence very closely in order to ensure that suspicion,

emotion or conjecture do not take the place of proof. However, the

evidence regarding existence of motive which operates in the mind of

an assassin is very often, not within the reach of others. The said

motive may not even be known to the victim of the crime. The motive

may be known to the assassin and no one else may know what gave

birth to such evil thought, in the mind of the assassin. In a case of

circumstantial evidence, the evidence indicating the guilt of the

accused becomes untrustworthy and unreliable, because most often it is

only the perpetrator of the crime alone, who has knowledge of the

circumstances that prompted him to adopt a certain course of action,

leading to the commission of the crime. Therefore, even in the cases

where the guilt of the accused can be deduced from the other

circumstances, motive is not very important to be proved.

IV Delay in FIR

21. The FIR in a criminal case is an extremely vital and valuable

piece of evidence for the purpose of corroborating the oral evidence

adduced at the trial. The importance of the above report can hardly be

over-emphasized from the standpoint of the accused. The object of

insisting upon prompt lodging of the report to the police in respect of

commission of an offence is to obtain prior information regarding the

circumstances in which the crime was committed, the names of the

actual culprits and the part played by them as well as names of eye-

witnesses present at the scene of occurrence. Delay in lodging the FIR

often results in embellishment which is the creature of an afterthought.

On account of delay, the report not only gets bereft of the advantage of

spontaneity, danger creeps in and the introduction of coloured version,

exaggerated account or concocted story as a result of deliberation and

consultation. It is, therefore, essential that the delay in lodging the FIR

should be satisfactorily accounted for. This proposition of law is very

well settled. It is true that FIR is not substantive piece of evidence. It

is also true that the FIR need not be

elaborate or meticulously prepared. Nevertheless, the importance of

FIR made promptly cannot be minimized. The underlined object of

Section 154 of Cr.P.C. is to obtain earliest information of an alleged

criminal activity on record and the circumstances, before there is time

for them to embellish the prosecution story.

22. The prosecution has also relied on the FIR which is Ex.PW1/A

dated 21.04.2006. The FIR was lodged by the complainant-Prakashi

(PW-1), mother of the deceased who stated in her complaint that her

son Avkash Singh went missing on 15.04.2006. Reasonable

explanation is given as to why FIR was lodged very late. It is found

from the facts of the present case that the deceased left his house with

some of the appellants on 15.04.2006 and he was supposed to return on

16.04.2006. However, when he did not come back, father of the

deceased started searching for him on 17.04.2006 and then on

18.04.2006 missing report was lodged by the husband of the

complainant namely, Dharambir (PW-2) vide DD No.45A which is

exhibited as Ex.PW2/A. Thereafter on 19.04.2006, husband of the

complainant went in search of his son from where he was finally

directed to Village Karchhali where he met with Shopali. While

returning from the house of Shopali, he sensed that his son had been

kidnapped and he informed his son Pradeep about his feelings from at

STD booth. On 21.04.2006 at night, he reached home and by then FIR

had been registered. The same fact has been stated by the

complainant-Prakashi (PW-1) who stated on 18.04.2006 that her

husband had lodged the missing report in P.S. Mandawali. They kept

on searching for their son, but no clues were found. Search has been

made at Village Dinapur also, but no clues were found there. On

21.04.2006, she lodged FIR naming Ram Niwas and his associates for

abducting her son. The FIR was lodged after about seven days i.e. on

21.04.2006 before SI Rupesh Khatri (PW-5). In the present case, the

delay in lodging FIR does not creates suspicion about the version of

the prosecution. The trial Court has not committed any illegality by

observing that there is no delay in the instant case and even if there is

any delay, it is well explained. Therefore, this contention of the

appellant is devoid of any merits.

V Recovery of Articles

23. As per the case of the prosecution a golden colour wrist watch was

got recovered by accused Charan Singh from his house. Accused Ram

Niwas got recovered a gold chain from his house and from accused

Satish @ Atal the pant and shirt of deceased Avkash Singh and the

original driving licence and RC of his maruti van were recovered. At

the instance of accused Ram Snehi @ Pintoo one brown colour shoe

was recovered from the roadside. The maruti van of the deceased was

allegedly found from the possession of appellant Ram Niwas when he

upon seeing the police party ran away after leaving the maruti van. The

gold chain was recovered later on at this instance.

24. Learned counsel for the appellants have stated that all the

recoveries are planted inasmuch as no offender/accused will keep the

pant, shirt, driving licence or RC etc. of the deceased in his possession

even after five months of the incident lest he may be connected with

the crime by the police. As regards the wrist watch it was stated that no

make or identity mark was stated in the initial complaint and thus,

prosecution has failed to prove that the watch in question, if at all

recovered, belonged to deceased. As regards the shoe it was stated that

the same was admittedly recovered from an open place accessible to

public. The gold chain was also stated to be planted.

25. Before proceeding to analyze the case of the prosecution qua

recovery of incriminating articles some judicial decisions may be

worth noting. In Shera vs. Emperor, AIR (30) 1943 Lah. 5, the

Lahore High Court observed as under:-

―..................When the evidence of recovery of stolen property is attacked, the Court has to examine the evidence in the light of the following alternative hypothesis: (1) The complainant might have been persuaded by the police to state in the first information report that property which in fact was not stolen had been stolen and to hand over such property to the police to be used in fabricating recoveries from the accused persons. This assumes a conspiracy between the informant and the police from the very start. (2) The police might have obtained property similar to the stolen property from the complainant or some one else and used it for the purpose of fabricating the recoveries. (3) The police might have suppressed some of the stolen property recovered from an accused person and utilized it in inventing a recovery from another accused person, (4) The property might have been recovered from a third party and used by the police in one of the impugned recoveries.‖ ―......... In considering the possibility of the second hypothesis, regard must necessarily be had to the nature and value of the property recovered. It should be borne in

mind that when a person hands over to the police valuable property with a view to enable the police to fabricate a false recovery of this property from someone else, there is always a possibility of the accused being acquitted and the owner of the property being deprived of such property. In the present case the property recovered consists of valuable ornaments of gold and silver and I do not consider that the police procured this property from someone else with the object of inventing false recoveries from innocent persons.....‖

26. In another decision in Reg vs. Jora Hasji (1874) 22 B.H.C.R

242 West J. it was observed that `we must not allow the discovery of

ordinary articles like lathis, knives, sticks and clothes to be introduced

so as to admit what are practically confessions to the police and that

the discovery ought to be of a fact which is directly connected with the

crime apart from the statement itself.'

27. Also in State v. Wahid Bux & Ors., AIR 1953 All 314 it was

observed as under:-

― 4. .......Further the articles recovered were of a very ordinary type. For instance, from Wahid Bux a Dua, a Jugnu and a patta were recovered. From Dori completely torn coat and a dhoti were recovered. From Chandu a lota, a tumbler, a longe were recovered. Nothing was recovered from the other respondents. These articles were of ordinary kind and could be found with anybody in the village and the witnesses did not point out any special features or marks of identification on them. They were not able to say to whom the articles belonged. In this view of the matter the learned Sessions Judge did not

draw any inference from the fact that these articles were recovered from the possession of the aforesaid respondents. We are of opinion that the learned Sessions Judge was right in rejecting the testimony relating to the recovery of the articles.‖

28. As regards appellant-Charan Singh we may state that mere

recovery of a golden colour wrist watch does not complete the

circumstantial chain of evidence against him. The reasons are ample

and clear. Admittedly, appellant Charan Singh was not accompanying

appellant Ram Niwas at the time when he had gone to the house of

Avkash Singh to hire the maruti van. The fact that he later on

accompanied other co-accused persons from his house in village

Karchali as stated to by his father Shopali does not stand proved in the

entire prosecution case. In fact, Shopali entered the witness box as

DW-2 but no question or suggestion was put to him in this regard by

the prosecution and he himself was completely silent in this regard in

his examination-in-chief. Thus, this mere statement of PW-2

Dharambir, which is in the nature of hearsay evidence, cannot be held

to be admissible.

29. Furthermore, in the overall facts and circumstances of the case

the fact that Charan Singh was found to be absconding from his house

is also not sufficient to infer a conclusion of his guilt. The recovery of

wrist watch at his instance after such a long gap and which too is

commonly available in the market and the complainant having not

disclosed any specific make or identification mark also does not inspire

confidence. We, thus, need to go into the various contradictions as

pointed out by the learned defence counsel in the deposition of various

recovery witnesses in this regard as the prosecution has miserably

failed in proving the chain of circumstantial evidence against him.

30. As regards appellant-Satish @ Atal, again his identity being an

accomplice of appellant -Ram Niwas, has not been deposed to by any

of the prosecution witness except Dharambir (PW-2) whose deposition

again in this regard is hearsay in nature. This fact was again not stated

to by Shopali (DW-2) and prosecution had every chance to ask this

question or to put a suggestion to this effect to him when he entered the

witness box but for reasons best known to them neither any question

nor any suggestion was put to him. Once again the recovery of pant

and shirt of deceased Avkash Singh or the RC or driving licence of the

Maruti van at his instance does not inspire any confidence as it is

beyond any comprehension as to why an accused would like to retain

the articles robbed in the commission of an offence lest he may be

connected with the crime.

31. As regards, appellant-Ram Snehi @ Pintoo the recovery of one

brown shoe from open place need not be discussed in detail as in view

of the discussion hereinabove qua the recovery of other articles from

appellants-Charan Singh and Satish, the same does not inspire

confidence. The prosecution case is that one brown colour shoe has

been recovered at the instance of appellant-Ram Snehi from an open

place. It has not been made from any closed or concealed place, but

from an open place, which is accessible to all and which creates

suspicion in the mind of the Court. Also, the recovery from appellant-

Ram Snehi @ Pintoo is of a brown shoe only and there are high degree

of chances of plantation of the same. Therefore, merely on the basis of

recovery of shoe and that too from an open place cannot form basis for

the conviction of the appellant for such a grave offence.

32. No other evidence has come up against the appellant-Ram Snehi

@ Pintoo on record. Also, both Prakashi (PW-1) and Dharambir (PW-

2) did not mention the name of the said appellant anywhere before

their cross-examination.

33. As regards, appellant-Ram Niwas again it stands well

established from the deposition of Prakashi (PW-1) and Dharambir

(PW-2) that he came to their house on 15.04.2006 along with Pintoo to

hire a Maruti van and deceased Avkash left along with them carrying

the Maruti van. Thus, onus shifted upon appellant-Ram Niwas to show

as to under what circumstances he parted company with the deceased

Avkash or his Maruti van. As regards recovery of gold chain neither it

can be presumed that such a costly ornament would have been given

by the family members of deceased Avkash Singh to the police simply

to falsely implicate appellant-Ram Niwas nor the police can

themselves plant such thing.

34. Thus, in view of aforesaid discussion, the appellants namely,

Charan Singh, [email protected] Atal and Ram Snehi @ Pintoo are neither

named in the missing report nor in the FIR. Moreover, Prakashi

(PW-1) and Dharambir (PW-2), star witnesses of the prosecution have

not named these appellants in their examination-in-chief. However,

recovery of gold chain from the appellant-Ram Niwas and

circumstances of last seen witnessed by Prakashi (PW-1) and

Dharambir (PW-2) are well founded incriminating circumstances

against him. PW-1 and PW-2 were cross-examined at length, but

nothing incriminating could be elicited. There is no enmity between

the appellant-Ram Niwas and the said witnesses to falsely implicate

him.

VI Medical evidence

35. As per the prosecution, skeleton was found in the forest area of

Village Karchhali on 22.04.2006 pursuant to the information given by

the watchman of Village Chachu Nangal. Constable Tirath Singh

(PW-18) (inadvertently numbered as PW-18) on reaching the spot saw

that human skeleton was lying there and near the skeleton some

clothes, i.e., one gamcha of yellow colour, two socks of white colour

having blood stains and one old baniyan on which ‗Roopa Jain' in

English was written and one underwear in a torn condition was also

lying there. The said PW-18 recorded the panchnama, collected the

bone pieces and kept them in a gunny bag and converted into a parcel.

The skeleton was sent for post mortem and according to the post

mortem report dated 23.04.2006, the age of the deceased was found

between 25 to 30 years with a stature of 166 cm, male and time since

death to be about two months. As per the contents of the FIR, in the

present case, the description of the skeleton seemed to match with the

deceased, hence, the skeleton was sent to FSL for DNA analysis

wherein it was opined in the DNA analysis report as ‗DNA profile of

source of Exhibit ‗3' (blood sample of Smt.Prakashi Devi) and DNA

profile of source of Exhibit ‗4' (blood sample of Sh.Dharamvir Singh)

are biological mother and father of the source of DNA profile of the

Exhibit ‗B-1' (Femur bone of deceased).

36. Initially though the DNA report was not put to the appellant

under Section 313 Cr.P.C. However, as per order of this Court dated

6th March, 2013, the matter was remanded back to the trial Court for

recording of additional statements of the appellants under Section 313

Cr. P.C. Before the trial Court on 15th May, 2013, all the appellants in

their statements under Section 313 Cr.P.C. have stated that the said

report to be false and manipulated. Even if we presume that the DNA

is not conclusive proof of the identity of the deceased, non recovery of

dead body is of no consequence. In Prithipal etc. vs. State of Punjab

and Ors., (2012) 1 SCC 10, the Supreme Court observed that:

―51. In Mani Kumar Thapa v. State of Sikkim [(2002) 7 SCC 157 : 2002 SCC (Cri) 1637 : AIR 2002 SC 2920] this Court held (SCC p. 163, para 4) that in a trial for murder, it is ―neither an absolute necessity nor an essential ingredient to establish corpus delicti‖. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without any trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case, the accused would manage to see that the dead body is destroyed to such an extent which would afford the accused complete immunity from being held guilty or from being punished. What is, therefore,

required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced."

37. Therefore, in murder case, it is not necessary that the dead body

of the victim could be found and identified and thus conviction for the

offence of murder does not necessarily depend upon corpus delicti

being found. The corpus delicti in a murder case has two components

- death as result, and criminal agency of another as the means. Where

there is a direct proof of one, the other may be established by

circumstantial evidence.

38. In the absence of corpus delicti what the Court looks for is

clinching evidence that proves that the victim has been put to death. If

the prosecution is successful in providing cogent and satisfactory proof

of the victim having made a homicidal death, absence of corpus delicti

will not by itself be fatal to a charge of murder. Failure of the

prosecution to assemble such evidence will, however, result in failure

of the most essential requirement in a case involving a charge of

murder.

39. Further, learned counsel for the appellants contended that there

are discrepancies in the statement of PW-14, PW-10, PW-21 and

PW-28 regarding the number of teeth. On the one hand, as per the

report prepared by PW-10, PW-21 and PW-28 exhibited as

Ex.PW10/A, all 32 common teeth were present in the socket while as

per the report of PW-14 (Ex.PW14/A), 14 teeth of upper jaw and 12

teeth of lower jaw were found present. In our opinion, it was rightly

observed by the trial Court that opinion in the report given by PW-10,

PW-21 and PW-28 is more authentic as PW-14 was not an expert in

forensic while the doctors who performed the post mortem report at

Delhi were all experts in forensic science.

40. It is also contended by learned counsel for the appellants that the

clothes found near the body of the deceased had been planted. In this

regard, we observe that Dharambir (PW-2) has stated that on

15.05.2006, he was questioned regarding the clothes of his son

(deceased). After contacting his wife, he came to know that his son

had purchased a pair of underwear and baniyan, one set of underwear

and baniyan were worn by him and another set was left by him at the

house. He took out one set of underwear and baniyan from his house

and produced before the police. The police seized the same vide

seizure memo Ex.PW2/B on that very day. PW-2 also stated that on

18.05.2006, when he was summoned by Insp. Neeraj Kumar (PW-31)

at police station, he was shown a pair of socks, one underwear, one

baniyan and one gamcha. He identified all of them to be of his son

except the gamcha.

41. We observe that the clothes were seized much prior in time on

22.04.2006 then they were identified by PW-2 on 18.05.2006 and a

pair was produced by him on 15.05.2006. Till that point in time, there

was no indication of the skeleton to be that of his son and in such a

case the possibility of clothes being planted is ruled out.

VII Criminal Conspiracy

42. The offence of ‗criminal conspiracy' is defined under Section

120A of the IPC whereas Section 120B of the code provides for

punishment for the said offence. The foundation of the offence of

criminal conspiracy is an agreement between two or more persons to

cooperate for the accomplishment /performance of an illegal act or an

act which is not illegal by itself through illegal means. Such agreement

or meeting of minds create the offence of criminal conspiracy and

regardless of proof or otherwise of the main offence to commit which

the conspiracy may have been hatched, once the unlawful combination

of minds is complete, the offence of criminal conspiracy stands

committed. A conspiracy from its very nature is generally hatched in

secrecy. It is, therefore, extremely rare that direct evidence in proof of

conspiracy can be forthcoming from wholly disinterested quarters or

from utter strangers. But, like other offences, criminal conspiracy can

be proved by circumstantial evidence. Indeed, in most cases proof of

conspiracy is largely inferential though the inference must be founded

on solid facts. Surrounding circumstances and antecedent and

subsequent conduct, among other factors, constitute relevant material.

In fact because of the difficulties in having direct evidence of criminal

conspiracy, once reasonable ground is shown for believing that two or

more persons have conspired to commit an offence then anything done

by any one of them in reference to their common intention after the

same is entertained becomes, according to the law of evidence,

relevant for proving both conspiracy and the offences committed

pursuant thereto. Direct proof of a conspiracy is, of course, seldom

available. In a case of conspiracy when there is no direct evidence,

inferences from the proved facts and circumstances, to a larger extent,

form the basis of the Court's conclusion. In dealing with such cases,

based on circumstantial evidence, an inference of guilt need only be

drawn when the circumstances are such as to be incapable of being

reasonably explained on any other hypothesis than the guilt of the

accused.

43. In the instant case, the factum of conspiracy stands proved from

the recovery of article made from the appellant-Ram Niwas pursuant to

his disclosure statement. Prakashi (PW-1) has stated in her statement

that on the date of incident, appellant-Ram Niwas and his associates

came to her house to get the vehicle from her son. In her cross-

examination, she stated that her son left her house on 15.04.2006 at

about 1.45 or 2.00 p.m., Ram Niwas and his associates stayed at their

house for 10-15 minutes. Her son told her that he was going with four

persons out of which two were present at their house and two would

meet them on the way. Dharambir (PW-2) has also stated in his

testimony that his son left with the appellant-Ram Niwas on

15.04.2006 at about 2.00 p.m. and in his cross-examination, he has

stated that his son had left the house with Ram Niwas and his

associates. Also when the search was being conducted, the appellant-

Ram Niwas was not present at his residence. Even if PW-1 and PW-2

had not named other associates, it is certain that someone or the other

must have accompanied Ram Niwas as both PW-1 and PW-2 have

stated from the very inception that Ram Niwas was accompanied with

his associates. Although, it is not clear who were those associates but

certainly there were some persons with whom Ram Niwas had

conspired to commit the crime. Therefore, qua Ram Niwas, conspiracy

also stands proved from the recovery of article and his conduct of

abscondance from his residence when the search was being conducted.

CONCLUSION

44. It will be worthwhile to quote certain observations of Supreme

Court as regards the expression ―proved beyond reasonable doubts‖

occurring in the cardinal rule of circumstantial evidences.

45. It was observed by the Supreme Court in Lal Singh vs. State of

Gujarat, (2001) 3 SCC 221 that :-

―84. The learned Senior Counsel Mr Sushil Kumar submitted that prosecution has not proved beyond reasonable doubt all the links relied upon by it. In our view, to say that prosecution has to prove the case with a hundred per cent certainty is a myth. Since last many years the nation is facing great stress and strain because of misguided militants and cooperation to the militancy, which has affected the social security, peace and stability. It is common knowledge that such terrorist activities are carried out with utmost secrecy. Many facts pertaining to such activities remain in personal knowledge of the person concerned. Hence, in case of conspiracy and particularly such activities, better evidence than acts and statements including that of co- conspirators in pursuance of the conspiracy is hardly available. In such cases, when there is confessional statement it is not necessary for the prosecution to establish each and every link as confessional statement gets corroboration from the link which is proved by the prosecution. In any case, the law requires establishment of such a degree of probability that a prudent man may on its basis, believe in the existence of the facts in issue. For assessing evidence in such cases, this Court in Collector of Customs v. D. Bhoormall [(1974) 2 SCC 544

: 1974 SCC (Cri) 784] dealing with smuggling activities and the penalty proceedings under Section 167 of the Sea Customs Act, 1878 observed that many facts relating to illicit business remain in the special or peculiar knowledge of the person concerned in it and held thus: (SCC pp. 553-55, paras 30-32 and 37) ―30. ... that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and--as Prof. Brett felicitously puts it

-- ‗all exactness is a fake'. El Dorado of absolute proof being unattainable, the law accepts for it probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case.‖

46. The Evidence Act does not insist upon absolute proof for the

simple reason that perfect proof in this imperfect world is seldom to be

found. That is why under Section 3 of the Evidence Act, a fact is said

to be ‗proved' when, after considering the matters before it, the Court

either believes it to exist, or considers its existence so probable that a

prudent man ought, under the circumstances of the particular case, to

act upon the supposition that it exists. This definition of ‗proved' does

not draw any distinction between circumstantial and other evidence.

The use of expression ―determinative tendency‖ in the aforementioned

rule also seconds the view that the prosecution is not required to

adduce such evidence which absolutely proves the guilt of an accused

person. Thus, circumstantial evidence in order to furnish a basis for

conviction requires a high degree of probability, that is, so sufficiently

high that a prudent man considering all the facts, feels justified in

holding that the accused has committed the crime.

47. The approach to be adopted by the Courts while appreciating

circumstantial evidence was succinctly stated by Supreme Court in

M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 in

following terms:-

―18...........It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of

doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt....‖

48. There are enough circumstantial evidence, as discussed above, to

hold that it is nonetheless but the appellant-Ram Niwas who could

have kidnapped the deceased and caused his death because it was the

appellant with whom the deceased was last seen alive and, therefore,

they must have been in possession of the articles of the deceased like

his gold chain which was also subsequently recovered at the behest of

the appellant-Ram Niwas and also proved to be that of the deceased

Avkash Singh during TIP and trial also.

49. Therefore, if we look at the case, we find that the prosecution

has succeeded in proving its case on circumstantial evidence against

appellant-Ram Niwas. In the present case, all the witnesses are

independent and they have not been shown to have any axe to grind

against the accused/appellant-Ram Niwas and from the evidence of the

several witnesses as mentioned above, it is clear that the deceased was

last seen with the appellant-Ram Niwas in the afternoon of 15.04.2006,

the recovery of material objects like gold chain, Maruti van as well as

the evidence of Prakashi (PW-1) and Dharambir (PW-2) who have

categorically stated that the articles recovered were of the deceased

only. However, it is a settled principle of criminal jurisprudence that

the more serious the offence, the stricter the degree of proof required,

since a higher degree of assurance is required to convict the accused.

Thus, conviction of appellants Charan Singh, Satish @ Atal and Ram

Snehi @ Pintoo cannot be maintained.

50. It is well settled proposition of law that the recovery of crime

objects on the basis of information given by the appellants/accused

provides a link in the chain of circumstances. Also failure to explain

one of the circumstances would not be fatal for the prosecution case

and cumulative effect of all the circumstances is to be seen in such

cases. At this juncture, we feel it is apposite to mention that in State of

Karnataka vs. K. Yarappa Reddy, (1999) 8 SCC 715, it was held

that the Court must have pre-dominance and pre-eminence in criminal

trials over the action taken by the investigating officers. Criminal

justice should not he made the casualty for the wrongs committed by

the investigating officers in the case. In other words, if the court is

convinced that the testimony of a witness to the occurrence is true the

court is free to act on it.

51. Hence, minor loopholes and irregularities in the investigation

process cannot form the crux of the case on which the appellants can

rely upon to prove their innocence when their strong circumstantial

evidence deduced from the said investigation which logically and

rationally point towards the guilt of the appellants.

52. In view of the aforesaid discussion, Crl. Appeal No.1272/2011

filed by appellant-Ram Niwas is dismissed. The judgment dated

09.08.2011 and order on sentence dated 16.08.2011 qua appellant-Ram

Niwas are upheld. However, the Crl. Appeal No.1317/2011 filed by

appellant-Satish @ Atal, Crl. Appeal No.1469/2011 filed by appellant-

Charan Singh and Crl. Appeal No.818/2012 filed by appellant-Ram

Snehi @ Pintoo are allowed and they are acquitted. In case, they are in

judicial custody, they be released forthwith, if not required in any other

case.

(VED PRAKASH VAISH) JUDGE

(P.K BHASIN) JUDGE September 27, 2013 aj/gm