Punjab-Haryana High Court
Rajesh Kumar @ Goldi & Ors vs State Of Punjab on 24 January, 2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
254
CRA-D-46-DB-2016 (O&M)
Date of Decision: 24.1.2023
Rajesh Kumar alias Goldi
and others ... Appellants
Versus
State of Punjab ... Respondent
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
HON'BLE MRS. JUSTICE MANISHA BATRA
Present: Mr. Kapil Aggarwal, Advocate,
for appellant No.1.
Mr. M.S. Virdi, Advocate,
for appellants No.2 and 3.
Ms. Ishma Randhawa, Addl. AG, Punjab.
***
MANISHA BATRA, J.
1. The instant appeal has been preferred by the appellants-
accused, Rajesh Kumar alias Goldi, Sushil Kumar alias Lovely and Vijay
Kumar alias Sonu against judgment of conviction and order on quantum
of sentence both dated 24.11.2015 pronounced in Sessions case No.59
titled as State Vs. Rajesh Kumar alias Goldi and others registered vide
FIR No.76 of 20.07.2014 under Sections 376, 302, 404, 201, 120-B and
148 read with Section 149 of IPC at Police Station Sujanpur, Pathankot.
2. Broad contours of the case as set up by the prosecution are
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that on 20.07.2014, Meet Singh son of Uttam Singh resident of village
Jakjian Lahri, District Pathankot, Punjab met a police party headed by SI
Chajju Ram at Vishal Dhaba on National Highway at 12 AM and informed
that he had seen dead body of a young girl lying in bushes on the side of the
road existing in front of Indian Gas Agency. The police party rushed
towards the disclosed place and found that dead body of a 22-23 years old
girl lying there. A dupatta was tightly tied around the neck and there were
strangulation marks on the neck of the dead body. The underwear and
salwar of the victim were lying pulled up to thigh area. A soiled towel was
also found lying near the dead body. A case under Sections 302 and 201
read with Section 34 of IPC was initially registered. On 22.07.2014,
complainant Jagdeep Singh, accompanied by his uncle Sulakhan Singh
identified the dead body of the victim as that of his younger sister (name
withheld), whose missing report had been given by him at Police Station
Cantonment, Amritsar on 20.07.2014 and recorded his statement that the
accused Rajesh Kumar @ Goldy used to disturb the victim on her mobile
phone and he along with his uncle was sure that the victim had been killed
by the accused Rajesh Kumar. He also recorded that the gold earrings and
rings worn by the victim had been taken away. On the basis of his
statement, offence under Section 404 of IPC had been added. Investigation
proceedings were initiated. Inquest proceedings and postmortem
examination of the dead body were conducted. Request was made by the
police to the doctors to clarify whether rape had been committed with the
victim or not? On 25.07.2014, the accused Rajesh Kumar was arrested. He
was interrogated and suffered disclosure statement admitting his
involvement in the murder of the victim and also disclosed that co-accused
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Lovely who was his brother had helped him in disposing of the dead body
of the victim. In pursuance of his disclosure statement, he got recovered
maruti car bearing registration No.PB-06F9115 used in the crime. He
suffered disclosure statements on 27.07.2014 and 28.07.2014 regarding
involvement of co-accused Gurmeet, Monika and Vijay Kumar alias Sonu
and also that he along with his aunt Monika had sold the jewellery removed
from the dead body of the victim. After receiving postmortem examination
report, offence under Section 376 of IPC was added. Offences under
Sections 120-B, 148 and 149 of IPC were added subsequently. The accused
Monika, Sushil Kumar @ Lovely, Gurmeet and Vijay Kumar @ Sonu were
also arrested. They too suffered disclosure statements admitting their
involvement in the crime. Accused Sushil and Vijay got the belongings of
the victim recovered. After completion of necessary investigation and usual
formalities, challan under Section 173 Cr.P.C. was presented in the court for
trial of the accused. The case was committed to the Court of sessions. On
finding a prima facie case, the accused, Rajesh Kumar @ Goldi, was charge
sheeted for under Section 376 of IPC and all the accused were charge-
sheeted for commission of offences punishable under Sections 120-B, 201,
302 and 404 read with Section 120-B of IPC. They pleaded not guilty to the
charges and claimed trial.
3. To substantiate its case, the prosecution examined 17 witnesses
in all besides placing reliance upon certain documents. Learned Public
Prosecutor also tendered in evidence FSL report Ex.PX, as per which,
spermatozoa was detected on the vaginal swab of the victim. and thereafter,
evidence of prosecution was closed by learned Public Prosecutor.
4. Statements of all the accused under Section 313 of Cr.P.C. were
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recorded wherein they pleaded false implication and claimed themselves to
be innocent. They were given opportunity to adduce defence evidence and
examined 6 witnesses.
5. After hearing the contentions raised by both the parties and
appraising the evidence produced on record, the learned trial Court vide
judgment dated 24.11.2015 acquitted the accused Monika and Gurmeet of
the charges as framed against them whereas the accused Rajesh Kumar alias
Goldi was held guilty for commission of offences punishable under Sections
302, 376, 404, 201, and 120-B of IPC. Accused Sushil Kumar alias Lovely
and Vijay Kumar alias Sonu were held guilty and convicted under Sections
404, 201 and 120-B of IPC. The accused Rajesh Kumar was sentenced to
undergo rigorous imprisonment for life for commission of offences
punishable under Sections 376 and 302 of IPC which were ordered to be
continued till remainder of his natural life and was also sentenced to pay
fine of Rs.10,000/- each and in default to undergo simple imprisonment for
two years each under these provisions. All the three accused were sentenced
to undergo rigorous imprisonment for a period of three years and were
sentenced to pay fine of Rs.10,000/- for commission of offence punishable
under Section 404 of IPC and in default of payment of fine, all of them were
sentenced to undergo rigorous imprisonment for 3 months each; were
sentenced to undergo 5 years rigorous imprisonment for commission of
offence punishable under Section 120-B of IPC and to pay fine of
Rs.10,000/- each and in default of payment of fine to undergo rigorous
imprisonment for a period of 6 months. All three of them were also
sentenced to undergo rigorous imprisonment for a period of 5 years each
and to pay fine of Rs.10,000/- for commission of offence punishable under
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Section 201 of IPC and in default of payment of fine, they were further
sentenced to undergo rigorous imprisonment for 6 months. All sentences
were ordered to run concurrently. Fine had not been paid.
6. Feeling aggrieved, the present appeal has been jointly filed by
the appellants-convicts.
7. It was argued by learned counsel for the appellants Sushil
Kumar and Vijay Kumar that findings as given by learned trial Court as
against them were not sustainable in the eyes of law being perverse and
being based on conjectures. The learned trial Court did not consider the fact
that there was no direct incriminating evidence against them on record. The
disclosure statement alleged to be suffered by the appellant-co-accused
Rajesh Kumar was not admissible as against them. The evidence led by the
prosecution as to suffering of disclosure statements by them was resting
upon the testimony of a single police official witness and had not been
corroborated by any other evidence either of police official witnesses or
private witnesses and hence the same could not be considered to be
sufficient. The recovery evidence was highly doubtful rather a false
recovery was proved to have been planted upon them. The ingredients for
proving the commission of offence of criminal conspiracy had not been
established at all against either of them. Neither the prosecution had
produced any convincing and reliable evidence on record to prove that they
had misappropriated any property belonging to the deceased. He further
argued that the evidence led by the prosecution with regard to causing
disappearance of evidence of offence of murder of the victim as against the
appellants Vijay Kumar and Sushil Kumar was also not inspiring. The chain
of circumstantial evidence was not proved against them at all. Therefore, it
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was urged that the findings as given by learned trial Court as against
appellants Sushil and Vijay Kumar were not sustainable and it was urged
that they had become entitled to be acquitted of the charges for which they
have been held guilty and convicted.
8. Learned counsel for the appellants further argued that the
prosecution had failed to produce any reliable evidence against the
appellant-accused Rajesh Kumar to connect him with offence under Section
302 IPC. No direct evidence had come on record as against him. No
convincing evidence had been produced on record to prove that the
appellant-Rajesh Kumar was user of mobile phone No.9465407070 at any
point of time. The prosecution had even failed to bring any convincing
evidence on record to prove that the victim was user of mobile phone
Nos.9478408272 and 9465109452. In the absence of proof of such
evidence, a grave error had been committed by learned trial Court in
holding the appellant-Rajesh Kumar guilty while relying upon call detail
records of mobile phone Nos. 9465407070 and 9465109452. It was further
argued that the prosecution had miserably failed to produce any convincing
evidence on record to prove that the appellant-Rajesh had committed rape
upon the victim. The stains of spermatozoa as found on the vaginal swab of
the deceased were not sent for DNA profiling and were not compared with
the DNA profiling of the appellant and no evidence had come on record to
prove that the same were of the appellant so as to connect him with the
offence of rape. Moreso, medical evidence did not prove that the victim was
sexually assaulted. Neither any other incriminating evidence had come on
record against him to prove the allegations of rape. Therefore, it was argued
that the findings as given by learned trial Court as to guilt of the appellant-
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Rajesh Kumar under Section 376 of IPC were also not sustainable and were
liable to be set aside.
9. It was further argued by learned counsel for the appellants that
the prosecution had failed to prove any such incriminating circumstance on
record which could be considered to be sufficient to prove the guilt of the
appellant-Rajesh Kumar. The gold jewellery allegedly removed by the
appellant from the dead body of the victim was of such nature which was
easily available in the market and could be planted upon the appellant. The
testimony of PW-1 Jatinderpal was not reliable. The prosecution had failed
to attribute any motive to the appellant-Rajesh Kumar to commit murder of
the victim. There was no convincing evidence on record to prove the
charges under Sections 201, 404 and 120-B of IPC as framed against the
appellant-Rajesh Kumar. With these broad arguments, it was submitted that
the conviction of the appellant-Rajesh Kumar was not sustainable and was
liable to be set aside.
10. Per contra, it was argued by learned State counsel that the
findings as given by learned trial Court were well reasoned. There was
overwhelming evidence on record to prove that the appellant-accused
Rajesh Kumar had committed rape upon the victim as on 19.07.2014 and
had thereafter caused her death by strangulating her and was also proved to
have removed jewellery from the dead body of the victim and have sold it.
The circumstances also pointed out that the appellant Rajesh had thrown
dead body of victim in the bushes in the area of Village Sujanpur to screen
himself from punishment and to cause disappearance evidence of offence of
murder. He argued that there was a complete chain of circumstances
pointing out towards the guilt of the appellant-Rajesh Kumar and connected
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him with the offences for which he had held guilty and convicted.
11. It was further argued by learned State counsel that the findings
as given by learned trial Court as against the appellant-accused Vijay Kumar
and Sushil Kumar were also based on proper appreciation of evidence
produced on record. The disclosure statements suffered by the appellants
Vijay Kumar and Sushil Kumar were admissible in evidence and had led to
discovery of incriminating articles in the shape of belongings of the victim.
These articles were duly identified by PW-12 Jagdeep to be belonging to the
victim. The disclosure statement of appellant-Rajesh Kumar was admissible
as against these accused under Section 30 of the Indian Evidence Act, 1872
(for short "Act") and was relevant and connected them with the offence of
hatching a criminal conspiracy with the appellant-Rajesh Kumar to cause
disappearance of evidence as to offence of murder of the victim. The
ingredients for commission of offences punishable under Sections 120-B,
201 & 404 of IPC were fully established against them. Hence it was urged
that the findings given by learned trial Court did not warrant any
interference and it was urged that the appeal was liable to be dismissed.
12. The version of the prosecution is that the appellant-accused
Rajesh Kumar was having a love affair with the victim. As per the case set
up by the prosecution, as on 18.07.2014, the victim who was doing a course
in Khalsa College, Amritsar and had been residing as a paying guest, had a
conversation with her brother PW-12 Jagdeep Singh and had intimated him
that she would be reaching her native village Talibpur, District Gurdaspur
on 19.07.2014. On 19.07.2014, she had left Amritsar and had reached at
Gurdaspur. She was user of mobile phone Nos.9478408272 and
9465109452 as on that date. She did not reach home on 19.07.2014 and had
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not responded to the calls made by PW-12 Jagdeep Singh on her mobile
phone. Her dead body was recovered from the area of Sujanpur, District
Pathankot, Punjab as on 20.07.2014 though the same could not be identified
at that time. The same had been identified by the complainant Jagdeep
Singh and his uncle Sulakhan Singh as on 22.07.2014. As per the evidence
led by the prosecution in the form of testimony of PW-7 Dr. Lashkar who
along with two other doctors conducted postmortem examination of the
dead body of the victim on 22.07.2014 and as per his report, Ex.PW-7/B,
two dark red coloured ligature marks, one over the front of the neck lying
horizontally below thyroid cartilage and another on the right lateral side of
neck were found on the dead body. Apart from this, there were lacerated
wounds over the right side of forehead, multiple yellowish greenish bruises
present over the anterior aspect of abdomen and two horizontally placed
bruises with yellowish greenish color over the back in the lumber area and
above the right sacro illiac joint. This witness opined that the cause of death
of the victim was asphyxia due to strangulation which was sufficient to
cause death in the ordinary course of nature. The testimony of this witness
remained uncontroverted as to cause of death of the victim and, therefore,
there is no hesitation in holding that the victim was proved to have died a
homicidal death.
13. The prosecution was further required to prove that the victim
had been killed by the appellant-Rajesh Kumar as on 19.07.2014. There is
no direct evidence as to commission of offence of murder of the victim and
the prosecution sought to prove the guilt of this appellant on the basis of
circumstantial evidence. It is well settled that the circumstances from which
the conclusion of the guilt of an accused is to be drawn should be fully
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established and should also be consistent with only one hypothesis i.e. the
guilt of the accused. The circumstances should be conclusive and proved by
the prosecution. There must be a chain of events so complete as to not to
leave any substantial doubt in the mind of the Court. Irresistibly the
evidence should lead to the conclusion inconsistent with the innocence of
the accused and the only possibility that the accused had committed the
crime. The circumstances forming the chain of events should be proved and
they should cumulatively point towards the guilt of the accused alone. In
such circumstances, the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any person [See: Sharad Birdi
Chand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622;
Brajendrasingh v. State of M.P., 2012 (4) SCC 289; Shivaji Sahebrao
Bobade and another v. State of Maharashtra, (1973) 2 SCC 793; Padala
Veera Reddy v. State of Andhra Pradesh, 1990(2) Recent Criminal
Reports 26 (SC); Vijay Shankar v. State of Haryana, (2015) 12 SCC 644;
Arvind @ Pappu v. State (Delhi Administration), 1999 (2) RCR
(Criminal) 810 and State of Rajasthan v. Rajaram, 2003 (47) ACC 635
(SC)].
14. The primary question in this appeal is whether the
circumstantial evidence produced by the prosecution to prove the guilt of
the appellants satisfies the above referred legal paragraphs or not? We
would firstly restrict ourselves with the question regarding involvement of
the appellant-accused Rajesh Kumar in the offences for which has been
held guilty and convicted and would discuss about the other two appellants
in the later part of this judgment. To prove the complicity of the appellant
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Rajesh in the crime, the prosecution had pressed into service, the following
circumstances:-
i) Disclosure statement of appellant Rajesh Kumar stated to
be suffered on 25.07.2014 vide memo Ex.PW14/B leading to
recovery of a car bearing registration No.PB-06F9115 vide memo
Ex.PW14/C.
ii) Disclosure statement of the appellant-accused Rajesh
Kumar Ex.PW-14/D dated 27.07.2014 and recovery of a pair of
gold earrings and a ring belonging to the victim and stated to be
removed from her dead body after killing her and disclosure
statement suffered by the appellant-Rajesh Kumar on 28.07.2014
vide memo Ex.PW14/E.
iii) Call detail records of mobile phones Nos.9465407070,
9478408272 and 9465109452.
(iv) Motive.
15. The first circumstance relied upon by the prosecution to connect
the appellant-Rajesh Kumar with the offence of murder of the victim was
suffering of disclosure statement vide memo Ex.PW14/B by him on
25.07.2014 and consequent recovery of maruti car bearing No.PB-06F9115
vide memo Ex.PW14/C. To prove this circumstance, the prosecution mainly
relied upon the testimony of PW14 SI Harit Sharma, Investigating Officer.
Before discussing the question of authenticity of evidence of this witness, it
will be proper to refer to certain provisions of law relating to
disclosure/confessional statements. Section 25 of Act mandates that no
confession made to a police officer, shall be proved as against a person
accused of an offence. Similarly, Section 26 of Act provides that confession
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made by an accused person while in custody of the police cannot be proved
against him. However, to the aforesaid rule of Sections 25 and 26 of Act,
there is an exception carved out by Section 27 of Act based on the view that
if a fact is actually discovered in consequence of information given, some
guarantee is afforded thereby that the information was true and accordingly,
it was safely allowed to be given in evidence. The scope and ambit of
Section 27 of the Act were illuminatingly stated in Pulukuri Kottayya and
others v. Emperor, AIR 1947 PC 67, which have become locus classicus
wherein it was held that Section 27 which is not artistically worded provides
an exception to the prohibition imposed by the preceding section and
enables certain statements made by a person in police custody to be proved.
The condition necessary to bring the section into operation is that discovery
of a fact in consequence of information received from a person accused of
any offence in the custody of Police Officer must be deposed to and
thereupon so much of the information as relates distinctly to the fact thereby
discovered may be proved. As observed in this case and other various
judicial pronouncements of Hon'ble Apex Court and various High Courts,
the well enunciated position of law is that for the applicability of Section 27
of Act, two conditions must be pre-requisite viz.:
i) Information must be such as has caused discovery of the
fact.
ii) Information must relate 'distinctly' to the fact discovered.
16. Under Section 27 only so much of the information as distinctly
relates to the fact revealing thereby discovery is admissible. While deciding
applicability of Section 27 of Act, the Court has also to keep in mind, the
nature of presumption under illustrations of Section 114 of the Act. The
Court can, therefore, presume the existence of a fact which it thinks likely to
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have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to the facts
of the particular case. Keeping in view the above discussed position of law
in mind, the question of admissibility of evidence as to suffering disclosure
statement by appellant-Rajesh in presence of PW-14 is to be determined. On
perusal of testimony of PW-14 it is revealed that his statement on the point
of suffering disclosure statement vide memo Ex.PW14/B by the appellant-
Rajesh had not been corroborated by any other evidence. PW-HC Surinder
Kumar who was one of the attesting witness of both these memos had been
given up by the prosecution as an unnecessary witness whereas ASI Kuljit
Singh had not been examined. No independent witness is tried to have been
joined by PW-14 at the time of preparing these memos. As such, the
testimony of PW-14 has not been corroborated by any other evidence on this
point. However, even if the same is accepted as such to be true and it is
considered that the appellant had made any such disclosure and got
recovered Maruti car bearing No.PB-06F9115 still this recovery cannot be
considered to be of any incriminating circumstance in view of the fact that
the prosecution in our opinion failed to link this vehicle with the murder of
the victim. PW-14 himself produced on record Ex.PW14/ZZ a letter written
by him to District Transport Officer, Gurdaspur for giving intimation as to
the name and particular of registered owner of the vehicle bearing No.PB-
06F9115 and as per endorsement made on this letter by the Transport
Authority, the above vehicle was registered in the name of one Sawarn
Kaur w/o Late Capt. Kartar Singh, r/o Village Mirpur, Tehsil Batala, District
Gurdaspur and not in the name of appellant-Rajesh Kumar or any of his
family members. The prosecution failed to bring any evidence on record to
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prove that the registered owner of the abovesaid vehicle was related with the
appellant in any manner whatsoever or she had handed over the custody of
the said vehicle to the appellant. She was not even cited and examined as a
witness. Unless and until the prosecution produced any direct evidence on
record to show that infact this vehicle was used by the appellant in the
crime, it could not be connected with the murder of the victim but no such
evidence was produced. Therefore, by producing evidence with regard to
recovery of maruti car bearing registration No.PB-06F9115 in our
considered opinion, the prosecution failed to connect the appellant-Rajesh
Kumar with the subject crime.
17. The next circumstance as set up by the prosecution was
evidence as to suffering of disclosure statement by appellant-Rajesh Kumar
vide memo Ex.PW14/D on 27.07.2014 to the effect that he had removed one
pair of gold earrings and one gold ring worn by the victim from her dead
body and then had gone to the shop of a Gold Smith situated at Main Bazar,
Gurdaspur along with co-accused Monika i.e. his aunt and had sold the same
on 20.07.2014 and another disclosure statement (Ex.PW14/E) stated to be
suffered on 28.07.2014 to the effect that the said gold jewellery had been
sold to Gold Smith namely, Jatinder Kumar for a sum of Rs.6000/-. To
prove these allegations, the prosecution had rested its case upon the
testimony of Investigating Officer PW-14 SI Harit Sharma who supported
the version of the prosecution on this point. It may, however, be mentioned
that PW ASI Kuljit Singh who was one of the attesting witnesses to memos
Ex.PW14/D and Ex.PW14/E had not been examined by the prosecution and
PW HC Rajesh Kumar who was one of the attesting witness to memo
Ex.PW14/E had also been given up as an unnecessary witness. Then PW-6
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HC Jaspal Singh who was second attesting witness to the memo of
disclosure statement Ex.PW14/D did not utter even a single word in his
sworn affidavit Ex.PW6/A regarding suffering of any disclosure statement
by the appellant-Rajesh Kumar on 27.07.2014. As such the testimony of
PW-14 that the appellant-accused Rajesh Kumar had suffered disclosure
statements vide memos Exs.PW14/D & PW14/E respectively disclosing that
he had sold the gold jewellery belonging to the victim has remained an
uncorroborated. Further, no recovery was alleged/proved to be effected at
the instance of appellant-Rajesh Kumar in pursuance of disclosure
statements PW14/D & PW14/E respectively nor any memo of recovery of
such jewellery was prepared at the instance of this appellant. However, on a
careful appreciation of evidence produced on record, we are of the opinion
that the fact that gold jewellery belonging to the victim was removed from
her person and had been sold/pledged by the appellant Rajesh to PW-1
Jatinderpal, Gold Smith at Gurdaspur nonetheless stood proved from other
evidence produced on record. PW-1 Jatinderpal deposed that on 20.07.2014,
the appellant-Rajesh Kumar along with co-accused Monika had come to him
and had pledged one ring and one pair of earrings for a sum of Rs.6000/-
with him. He proved Ex.P1 carbon copy of the bill issued by him. Though
the complete cash book voucher of which Ex.P1 was forming a part had not
been brought by this witness however, on overall assessment of his
testimony, it is revealed that he had been subjected to pertinent questions of
cross-examination but nothing could be extracted from his testimony to
show that he was not speaking the truth and the appellant-Rajesh Kumar had
not come to his shop on 20.07.2014 and had not pledged the jewellery as
told by him. He deposed about identifying the appellant Rajesh at the police
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station on 29.07.2014. As such, there is no reason to disbelieve his
statement which proves that just next day after the murder of the victim one
pair of earrings and one ring had been pledged by the appellant-Rajesh
Kumar with PW-1 for a sum of Rs.6000/-. PW-12 Jagdeep Singh had
identified the ring Ex.MO/8 and earrings Ex.MO/9 as the jewellery
belonging to his sister i.e. the victim and could not be controverted on that
point. PW-8 Neeraj Gupta, Proprietor of Raj Jewellers, Gurdaspur proved
bills Ex.PW8/A and PW8/B regarding purchase of one pair of earrings and
one ring respectively by the parents of the victim and his statement also
remained unshattered on the point of genuineness of these bills. The conduct
of the appellant-Rajesh of disclosing the name of PW-1 Jatinderpal as the
Gold Smith with whom he had pledged the jewellery belonging to the victim
is relevant by virtue of Section 8 of the Act and is admissible irrespective of
the fact that the statement stated to be made by him contemporaneously with
or antecedents to such conduct falls within the purview of Section 27 of the
Act or not and as such it emerges that though the testimony of PW-14 as to
suffering of disclosure statement by appellant admitting that he had removed
jewellery belonging to the victim and had pledged the same with PW-1
cannot be considered to be admissible in evidence but the same can certainly
be considered to show conduct of the appellant and is relevant. The
remaining evidence produced on record in the form of testimony of PW-1,
PW-8 and PW-12 was sufficient to prove that the jewellery Ex.MO/8 and
Ex.MO/9 was belonging to the deceased and was worn by her and further
that the appellant-Rajesh Kumar had pledged the same with PW-1 shortly
after her homicidal death i.e. on 20.07.2014 and in our considered opinion,
this was an important incriminating circumstance connecting the appellant-
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Rajesh Kumar with the crime of murder of the victim.
18. The prosecution further relied upon evidence in the form of call
detail record of cell numbers bearing Nos.9478408272, 9465109452 &
9465407070. As per the prosecution case, the victim was using cell Nos.
9478408272 & 9465109452 whereas the appellant Rajesh Kumar had been
using cell phone No.9465407070. The prosecution version was that there
used to be exchange of calls between the cell phone Nos.9465407070 and
9465109452 and as on the date of occurrence i.e. on 19.07.2014 also,
several calls had been exchanged between these two numbers and at one
point of time i.e. at 3:28 PM, the tower location of both these cell numbers
was the same and thereafter, no call was made or received on the cell phone
No. 9465109452 used by the victim. Even the location of the mobile phone
No. 9478408272 was also found under the same tower at the relevant point
of time. The learned trial Court after appreciating the evidence produced on
record had observed that the cell phone Nos. 9465109452 and 9478408272
stated to be used by the victim and cell phone No. 9465407070 stated to be
used by the appellant-Rajesh Kumar were not proved to have been issued in
their names but had simultaneously held that the combined reading of tower
location record of all these mobile phones showed that the appellant-Rajesh
Kumar and the victim had remained in almost same locations on 19.07.2014
at Gurdaspur from 3:28 PM till around 6 PM and thereafter the cell phone
numbers used by the victim had become inoperative. It was also observed
that the tower location of mobile phone No.9465407070 proved that at
about 8:30 PM, the appellant had started his journey from Gurdaspur to
Pathankot and on the same night at about 9:30 PM, the location of his cell
phone was revealed to be near the place where the dead body of the victim
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was recovered which showed that it was the appellant who had eliminated
the victim and had thrown her dead body in that area. On an assessment of
evidence produced on record in the form of testimonies of PW-2 Bodh Raj
and PW-17 Alok Kumar Kaul both employees of BSNL and copies of
consumer application forms Ex.PW2/A, Ex.PW2/B and Ex.PW17/A and
call detail records Exs.P2 to P4 produced by them it undoubtedly stands
proved that the cell phone No.9465109452 was issued in the name of Sushil
Kumar son of Raj Kumar, resident of ITI Colony, Gurdaspur who is infact
none other than the co-appellant-accused Sushil Kumar i.e. real brother of
appellant Rajesh and the cell phone No. 9478408272 was issued in the name
of one Sushil Dutta son of Arun Kumar resident of Pathankot whereas the
cell phone No.9465407070 was issued in the name of one Ashok Kumar son
of Firoj Masih, resident of ITI Colony, Gurdaspur. The learned trial Court
on the basis of tower location record of all these cell phone numbers had
observed that location of appellant and deceased was the same w.e.f. 3:28
PM as on 19.07.2014 and that the location of cell phone used by the
appellant-Rajesh Kumar was near the place of recovery of dead body at
about 9:30 PM on that date.
19. It was strenuously argued by learned counsel for the appellant-
Rajesh Kumar that the learned trial Court had committed a grave error in
connecting him with the offence of murder of the victim on the basis of call
detail records of the above-mentioned mobile phone numbers simplicitor
which were neither proved to be issued in the name of the deceased nor or
the appellant Rajesh Kumar and were in the names of some other persons.
There could be no denial of this fact, that these cell phone numbers were not
issued in the name of the deceased or appellant Rajesh Kumar. However,
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nonetheless we are of the considered opinion that the evidence produced on
record proved that the cell phone No.9478408272 and 9465109452 were
used by the victim and cell phone No. 9465407070 was used by the
appellant Rajesh Kumar on 19.07.2014. In this context, it may be mentioned
that PW-9 MHC Wilson Masih, Amritsar City had proved Ex.PW9/A copy
of DDR entry No.24 dated 20.07.2014 made on the basis of information
given by PW-12 Jagdeep Singh regarding missing of his sister from
19.07.2014. In this report, PW-12 is shown to have disclosed the cell phone
number of the victim as 9478408272. PW-12 Jagdeep Singh was not at all
controverted by the defence side on the point that the victim had been using
cell phone No.9478408272. Therefore, even in the absence of any evidence
coming on record to prove that the victim was the recorded official
consumer of the cell phone No.9478408272, it can reasonably be presumed
that she had been using the abovesaid cell phone number. With regard to
cell phone number 9465109452, which as mentioned above is infact shown
to be issued in the name of co-appellant Sushil Kumar and with regard to
cell phone No.9465407070 issued in the name of Ashok Kumar, it can be
stated that though the prosecution failed to bring any connecting evidence
on record to prove that the victim and the deceased respectively were
consumers of these cell numbers, however, one important fact which cannot
be ignored is that the appellants themselves had summoned and had relied
upon testimony of DW-3 Jagtar Singh Kanth who was posted as SP
(Investigation) in Gurdaspur in the year 2014 and had conducted
investigation on the application moved by Pawan Kumar, husband of
accused Monika. This witness proved his report Ex.DW3/A as per which he
had conducted investigation/inquiry on the complaint of Pawan Kumar and
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had found that the murder of the victim was committed by the appellant-
Rajesh Kumr alone and the co-accused Gurmeet, Monika and Vijay were
innocent. On a perusal of contents of this report, it is revealed that DW-3
had categorically mentioned therein that the victim used the cell phone
No.9465109452 and the appellant-Rajesh Kumar had called her on that
phone from mobile phone No.9465407070. In this report, it was also
mentioned that the call detail record of both the above-mentioned mobile
phones had revealed that the appellant-Rajesh Kumar and the victim were in
close contact and used to have conversations for long duration of time with
each other and further that as on 19.07.2014, the victim had left Amritsar
wherein she was staying, for Gurdaspur and had reached Gurdaspur at about
3:30 PM and the location of the cell phone used by the appellant was also of
the same tower. As per his report, subsequently the location of cell phone of
the appellant was found to be around the same area where the dead body of
the victim had been thrown. By choosing to rely upon the report Ex.DW3/A,
the appellant Rajesh Kumar is proved to have admitted the fact that in fact
he had been using the cell phone No.9465407070 and the victim had been
using cell phone No.9465109452 which was issued in the name of
appellant-accused Sushil Kumar who is real brother of the appellant-Rajesh
Kumar. Though the Investigating Officer did not collect any evidence on
that point and committed a lapse in this regard but the benefit of that lapse
cannot be given to appellant-Rajesh and rather it can be inferred from the
circumstances that since the appellant-Rajesh Kumar and the victim were
having love affair, therefore, the sim card No.9465109452 issued in the
name of the brother of the appellant-Rajesh Kumar had been provided by
the latter to the victim to facilitate conversations between them.
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20. The testimonies of PW-2 Bodh Raj and PW-17 who had
produced consumer application forms Ex.PW2/A and Ex.PW2/B consumer
application forms of mobile phone Nos.9465109452 and 9465407070 and
Ex.PW17/A of the mobile phone No.9478408272 and the testimony of PW-
2 Bodh Raj who had proved Ex.P-2 to P-4 call detail records and details of
tower location of all three mobile phone numbers and testimony of PW-17
who had produced consumer application form of mobile phone
No.9478408272 have remained unshattered. PW-2 had also produced in
evidence Ex.P-5 requisite certificates under Section 65-B of the Act to
prove authenticity/correctness of the call detail record Ex.P-2 to P-4. From
the call detail record Ex.P-2 it is revealed that as on 19.07.2014 the location
of phone No.9478408272 was found in the area of GNDU (Guru Nanak Dev
University), Amritsar till 11:42 AM and then it was found to be in the area
of Regent Cinema and bus stand, Amritsar in between 1:15 PM to 1:28 PM
and it was found near coaxial building, Gurdaspur at 6:43 PM. Then on a
perusal of Ex.P-3 qua detail record of mobile phone No. 9465109452 and
Ex.P-4 qua detail record of mobile phone No. 9465407070 it is very much
clear that there was frequent exchange of calls between both these numbers.
Even during the period from 04.07.2014 till 19.07.2014 more than 100 calls
are shown to have been exchanged between these numbers. Then, on
19.07.2014 also as many as seven calls are shown to have been exchanged
between these numbers from 11:24 AM till 3:28 PM. The location of both
these cell numbers is shown to be in the area of Gurdaspur between 3:17
PM to 3:28 PM and in the area of Coaxial building in between 4 PM to 5:45
PM. All this goes to show that the victim had left Amritsar on 19.07.2014
and had reached Gurdaspur in the noon of 19.07.2014. During that period
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not only several calls were exchanged between the phones used by the
victim and the appellant but the location of their phones was also found to
be in the same area for quite some time. Though the appellant-Rajesh
Kumar in his supplementary statement recorded under Section 313 of
Cr.P.C. denied that he was user of mobile phone No. 9465407070 and it was
issued in his name but he remained silent on the point that victim was user
of mobile phone No. 9465109452 which was not only issued in the name of
brother of the appellant but was also proved to be used by the victim and
several calls were exchanged between these two numbers on the day of
occurrence. It was also not his version that he was not having love affair
with the victim and further that had not met her on 19.07.2014. It is well
settled proposition of law that silence of accused in his statement recorded
under Section 313 of Cr.P.C. about matters which he is expected to explain
leads to an adverse inference against him. Therefore, the circumstance that
the victim had been using the mobile phone issued in the name of brother of
the appellant and there were regular and several calls between these
numbers not only during the month of July 2014 but on the day of
occurrence also unerringly and undoubtedly point out towards the fact that
the appellant and victim had met as on 19.07.2014 and thereafter the dead
body of the victim was recovered from the vicinity wherein as per the
location of cell phone of the appellant-Rajesh, he was also found to be
present on the night of 19.07.2014 and this circumstance can certainly be
stated to be an important incriminating circumstance as against the
appellant.
21. Learned counsel for the appellant argued that the prosecution
failed to produce any evidence to prove that the appellant-Rajesh Kumar
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had motive to kill the victim. So far as the motive is concerned, as discussed
above, the prosecution case was that there was a love affair between the
appellant-Rajesh Kumar and the victim and the appellant was offended with
the victim on the issue of performing marriage between them and also
suspected infidelity against her and due to that reason killed her. No direct
evidence has come on record on that point. PW-12 while recording his
statement before the police on 22.07.2014 had alleged that the victim had
complained that the appellant used to harass her and pressurize her to marry
with him. In his sworn deposition also he stated so. Though the testimony of
PW-12 on this point can be stated to be hearsay in nature only and on the
basis of the same, no motive can be attributed to the appellant but in our
opinion, inability on the part of the prosecution to establish motive in such a
case like the present one which is based on a circumstantial evidence cannot
be considered to be fatal. In this regard, reliance can be placed upon the
observations made by Hon'ble Apex Court in Sukhpal Singh v. State of
Punjab, 2019 SCC Online SC 178. The evidence on record establishes that
it was the appellant-Rajesh Kumar who had committed the murder of the
victim and, therefore, absence of proof of motive cannot be stated of any
consequence in such circumstance. In view of the discussion as made above,
we feel no hesitation in observing that though the prosecution failed to
bring any cogent, convincing and reliable evidence of such nature on record
which could be acted and relied upon beyond doubt to prove that the
appellant-Rajesh Kumar had suffered disclosure statements admitting his
involvement in the crime of murder of the victim and had got discovered
such facts or such recoveries which could be connected with the crime.
However, sufficient incriminating circumstance in the form of evidence as
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to removal of jewellery belonging to the victim from her dead body and sale
thereof by the appellant-Rajesh Kumar in favour of PW-1 and in the form of
call detail records of the mobile phones respectively used by the victim as
well as the appellant-Rajesh Kumar, have come on record which unerringly
point out towards the fact that the appellant-Rajesh Kumar was having a
love affair with the victim and used to regularly conversate with her and as
on 19.07.2014, the victim had met him and thereafter she was found to be
dead and her dead body was recovered on 20.07.2014 from the same area
wherein the presence of accused was also established as on the night of
19.07.2014. All these circumstances unerringly point towards the
involvement of the appellant-Rajesh Kumar in the murder of the victim.
With these observations, we are inclined to hold that the findings given by
learned trial Court as of the accused for commission of offence punishable
under Section 302 of IPC do not warrant any interference and deserve to be
upheld.
22. Now coming to the charge under Section 376 of IPC, the
learned trial Court had held the appellant-Rajesh Kumar guilty and
convicted him thereunder on the basis of the evidence produced on record to
the effect that semen was detected on the vaginal swabs taken from the dead
body of the victim. At the cost of repetition, it may be stated that it was the
version of the prosecution itself that there was love affair between the
appellant-Rajesh Kumar and the victim. The victim had herself come to
meet the appellant-Rajesh Kumar at 19.07.2014 from Amritsar to
Gurdaspur. Several calls had been exchanged between them on that day and
even earlier also on their phones. Medical evidence produced on record in
the form of testimony PW-7 Dr. Lashkar proves that there was no evidence
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of the victim having been sexually assaulted. The injuries which were found
on the dead body of the victim were also not such that could be stated to
have been sustained while resisting the act of sexual intercourse being
committed upon the victim. No injury was found on the vagina, breast or
thighs of the victim. The victim was having her menstruation as on
19.07.2014 and it was due to that reason blood mixed fluid was found to be
coming out from the vagina while conducting postmortem examination on
the dead body of the victim. To prove the guilt of the appellant for
commission of offence committing rape upon the victim, the prosecution
was required to prove that it was the appellant who had ravished the victim
and further that she was subjected to physical intercourse against her will,
without her consent, by obtaining her consent by putting her in fear of
death or hurt or with her consent when she was unable to understand the
nature and consequence of the act to which she gave consent. No evidence
of any such nature had however, been, produced by the prosecution on
record. Strangely, even the semen detected on the vaginal swab of the
victim had not been subjected to DNA profiling with the DNA sample of the
appellant for the purpose of proving that the seminal stains detected on the
vaginal swab of the victim were that of the appellant-accused Rajesh Kumar
and none else. In these circumstances, the finding as given by learned trial
Court as to holding the appellant-accused Rajesh Kumar guilty for
commission of offence punishable under Section 376 of IPC cannot be
stated to be sustainable and accordingly, the same are set aside. Resultantly,
the appellant-accused Rajesh Kumar has become entitled to be acquitted of
charge under Section 376 of IPC.
23. Further, the circumstance that the location of mobile phone
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used by the appellant-Rajesh Kumar on the night of 19.07.2014 was found
to be of the same area from where the dead body of the victim had been
recovered, strengthens the prosecution plea that it was he who had thrown
the dead body of the victim in that area obviously to cause disappearance of
evidence of murder of the victim and to screen himself from legal
punishment and, therefore, we see no reason to interfere with the findings of
guilt of appellant Rajesh Kumar as recorded under Section 201 of IPC.
Further, so far as charge under Section 404 of IPC is concerned, as
discussed above, it stands proved that the appellant-Rajesh Kumar had
pledged the jewellery worn by the deceased at the time of her death with
PW-1 Jatinderpal, Gold Smith on 20.07.2014 and PW-1 had handed over
the same to the police which was so identified by the brother of the victim.
The act and conduct of the appellant-Rajesh Kumar of pledging the
jewellery of the victim with PW-1 is sufficient to prove that it was he who
had removed this jewellery from the dead body of the victim after her death
and had misappropriated the same with the dishonest intention to convert
the same to his own use by taking a sum of Rs.6000/- from PW-1. As such,
the learned trial Court had committed no error in recording findings of guilt
of the appellant-Rajesh Kumar under Section 404 of IPC and accordingly
the same are upheld.
24. Let us now discuss the question of involvement of appellant
Vijay and Sushil in the crime. As mentioned above, the learned trial Court
had come to the conclusion that there was sufficient evidence against the
appellant-Rajesh Kumar to prove that he had actually murdered the victim.
So far as the appellants-Vijay Kumar and Sushil Kumar are concerned, it
was held qua them that they had entered into a criminal conspiracy with the
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appellant-Rajesh Kumar after the murder of the victim and in pursuance
thereof, had misappropriated property belonging to the victim from her dead
body and caused disappearance of evidence connected with the offence of
rape and murder by helping the appellant in throwing dead body of the
victim in the bushes of Village Sujanpur. They had not taken any active part
in the murder of the victim namely there was no actus reus on their part.
Therefore, the moot question in this appeal qua both these appellants is as to
whether the prosecution has been able to prove their involvement in this
case with the aid of Section 120-B of IPC.
25. The evidence of criminal conspiracy is defined under Section
120-A of IPC as per which when two or more persons agreed to do, or
caused to be done, an illegal act or an act which is not illegal by illegal
means, such an agreement is designated as conspiracy. It is manifestly clear
that for holding a person as a conspirator, there has to be an existence of an
agreement between two or more persons either to do an illegal act or to do a
legal act through illegal means. An offence of conspiracy cannot be deemed
to have been established on mere suspicion, surmises or inferences which
are not supported by cogent or acceptable evidence. Independent evidence
of criminal conspiracy is generally not available and its existence is a matter
of inferences which are normally deduced from the acts of the parties in
pursuance of performance in common between the conspirators. To prove
criminal conspiracy, there must be evidence direct or circumstantial to show
that there was an agreement between two or more persons to commit an
offence. There must be a meeting of minds resulting in ultimate decision
taken by the conspirators regarding the commission of an offence or where
the factum of conspiracy is sought to be inferred from the circumstances, the
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prosecution has to show that the circumstances giving rise to a conclusive or
irresistible inference or an agreement between two or more persons to
commit an offence. As in all other criminal offences, the prosecution has to
discharge its onus of proving the case against the accused beyond
reasonable doubt. The circumstances in a case, when taken together on their
face value, should indicate the meeting of the minds between the
conspirators for the intended object of committing an illegal act or an act
which is not illegal, by illegal means. Reference in this regard can be made
to Central Bureau of Investigation, Hyderabad v. K.Narayana Rao,
(2012) 9 SCC 512.
26. In the present case, there is no witness to the conspiracy alleged
to be hatched by these appellants with the appellant-Rajesh Kumar. We
have, therefore, to see from the circumstantial evidence or other evidence
produced as to whether the charge of conspiracy is proved against them or
not. The conviction of the appellants Vijay Kumar and Sushil Kumar is
recorded by the learned trial Court mainly on the basis of disclosure
statement alleged to have been suffered by the appellant Rajesh Kumar vide
memo Ex.PW14/D and disclosure statements stated to be suffered by the
appellant-Sushil Kumar vide memo Ex.PW14/U and by appellant-accused
Vijay Kumar vide memo Ex.PW14/R leading to recovery of belongings of
the victim. Now it is to be examined as to whether conviction had rightly
been recorded by the learned trial Court on the basis of such evidence.
27. Learned counsel for the appellants vehemently argued that the
statements suffered by the appellant-co-accused Rajesh Kumar against these
two appellants and the confessional statements alleged to be recorded by
these appellants cannot be considered to be admissible in evidence as they
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were admittedly recorded after the arrest of these appeallants and when they
were in police custody. He further argued that these disclosure statements
did not even fall within the ambit of Section 10 of the Act. On a careful
scrutiny of the evidence available on record, we are of the considered view
that the prosecution has failed to prove that the appellants-Sushil Kumar
and Vijay Kumar had conspired with the appellant Rajesh for causing
disappearance of dead body of the victim after her murder or for removing
her belongings. Firstly, referring to the evidence as to suffering of
disclosure statement by appellant-Rajesh Kumar as to involvement of both
these appellants in the crime, it may be mentioned that as per the
prosecution version, the appellant Rajesh Kumar had suffered disclosure
statement on 25.07.2014 vide memo Ex.PW14/B wherein while making
other disclosures, he stated that while he was having a verbal altercation
with the victim after committing rape upon her, then the appellant Sushil
Kumar alias Lovely had reached there and then both of them had hatched a
conspiracy and had strangulated the victim and threw her dead body. The
appellant-Rajesh Kumar was then alleged to have retracted from his
previous statement Ex.PW14/D and was alleged to have recorded his
disclosure statement vide memo Ex.PW14/E on 28.07.2014 to the effect that
he himself had committed murder of the victim in the garage of his house
and then had called the appellant-Sushil Kumar alias Lovely who was his
real brother at home and the appellant-Vijay Kumar alias Sonu also come
there by chance and with the help of them he had taken the dead body of the
victim towards Village Sujanpur side and had thrown the same and had also
handed over belongings of the victim to both of them. As already discussed,
both these disclosure statements have been held by us to be not admissible
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in evidence due to the reason that no new or distinct fact linking the
appellant-Rajesh Kumar with the subject offence was proved to have been
discovered in pursuance thereof. Therefore, these disclosure statements
cannot be stated to be admissible as against the appellants-Sushil Kumar
and Vijay Kumar also. It is even otherwise well settled proposition of law
that though the confession of a co-accused can be taken into consideration
but it is not in itself a substantive evidence and is a very weak type of
evidence and in the absence of other acceptable corroborative evidence, it is
not safe to convict the co-accused on the basis thereof. Reference in this
regard can be made had to the observations made by Hon'ble Apex Court in
authorities cited as Hari Charan Kurmi and another v. State of Bihar,
AIR 1964 SC 1184 and Ram Chander and another v. State of U.P., AIR
1957 Supreme Court 381. Both these citations were relied upon by Hon'ble
Apex Court in a recent pronouncement cited as Subramanya v. State of
Karnataka, 2022 AIR (SC) 5110 wherein it was observed that confession
of a co-accused was a evidence of very weak type and did not come within
the definition of evidence contained in Section 3 and could not supporting
point or the sole basis of conviction. Applying this proposition of law in the
peculiar circumstances of the case when the disclosure statement stated to
be suffered by the appellant-Rajesh Kumar even otherwise is not proved to
be admissible in evidence, we are inclined to hold that this piece of
evidence did not help the prosecution in connecting the appellants Sushil
Kumar and Vijay Kumar with the subject offences and for the purpose of
holding that the appellants had hatched any conspiracy with the co-appellant
Rajesh Kumar.
28. It is also required to be mentioned that Section 10 of the Act
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which is an exception to the general rule that while permitting the statement
made by one conspirator to be admissible as against other conspirators,
restricts it to be the statement made by one conspirator only during the
period when the agency existed. The principle is no more res integra that
any statement made by an accused after his arrest whether as a confession or
otherwise, cannot fall within the ambit of Section 10 of the Act. In State of
Gujarat v. Mohammed Atik and others, (1998) 4 SCC 351 it was
observed that once the common intention between the conspirators ceased
to exist, then any statement made by a former conspirator thereof cannot be
regarded as one made in reference to his common intention with the other
conspirators. In other words, the post arrest statement made to a police
officer whether it is a confession or otherwise, touching his involvement in
the conspiracy would not fall within the ambit of Section 10 of the Act
meaning thereby that if one of the conspirators makes any statement in
reference to involvement of other conspirators/accused in a crime while
being in custody of the police, such statement would not be considered to be
relevant. Therefore, the statement alleged to have been made by the
appellant-Rajesh Kumar vide memos Ex.PW4/A and Ex.PW14/D
respectively qua the involvement of appellants-Sushil Kumar and Vijay
Kumar in the act of throwing away dead body of the victim cannot be
considered to be relevant and falling within the ambit of Section 10 of the
Act. Reliance in this regard can also be placed upon Bhagwan Swarup Lal
Bishan Lal v. State of Maharashtra, AIR 1965 SC 682 wherein it was
observed that Section 10 of the Act is founded on the principle of law of
agency by rendering the statement or act of one conspirator binding on the
other if it was said during subsistence of common intention between the
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conspirators. If so, once the common intention ceased to exist, any
statement made by a former conspirator thereafter cannot be regarded as one
made 'in reference to their common intention'. In other words, a post arrest
statement made to a police officer whether it is a confession or otherwise,
by an accused, touching his involvement in the conspiracy would not fall
within the ambit of Section 10 of the Act. In view of this discussion, we are
inclined to hold that the disclosure statements stated to be suffered by the
appellant Rajesh Kumar as against the appellant-Sushil Kumar and Vijay
Kumar could not be considered to be relevant and admissible in evidence
and could not be acted and relied upon to prove that they had hatched any
conspiracy with each other thereby proving their complicity in the crime.
29. So far as the disclosure statements stated to be suffered by the
appellant Vijay Kumar vide memo Ex.PW14/R on 04.08.2014 thereby
leading to recovery of one black colour bag/kit, two suits and a sum of
Rs.1200/- vide memo Ex.PW14/S allegedly belonging to the victim and
kept concealed in a trunk of his room and disclosure statement stated to be
suffered by the appellant-Sushil Kumar on 05.08.2014 leading to recovery
of one wrist watch and two mobile phones vide memo Ex.PW14/U
belonging to the victim are concerned, it may be mentioned that though as
per prosecution case, these memos were attested by ASI Kuljit Singh and
HC Surinder Kumar and HC Rajesh Kumar apart from PW-14 SI Harit
Sharma, Investigating Officer, however, none of these three witnesses was
examined by the prosecution for the reasons best known and the version of
prosecution on this point rests upon the singular statement of PW-14 SI
Harit Sharma. Undisputedly, there is no legal proposition that evidence of
police officials unless supported by independent evidence is unworthy of
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acceptance and the presumption that every person acts honestly applies as
much in favour of the police official as any other person. However, rule of
prudence requires more careful scrutiny of their evidence. On assessing the
testimony of PW-14 on this principle, we find that apart from the fact that
his statement has not been corroborated by any other evidence on the point
that appellants-Sushil Kumar and Vijay Kumar suffered disclosure
staetments and got recovered articles belonging to the victim, rather the
same stands falsified on this point from the testimony of PW-6 HC Jaspal
Singh who admittedly on 20.07.2014 was present at the spot from where the
dead body of the victim had been recovered. During cross-examination, this
witness stated that he had accompanied the police party to the place where
the dead body was lying on 20.07.2014 and stated that he had stayed there
for about two and half hours. He stated that the surrounding area of the said
spot had been searched by the police and from a distance of about 10-15 ft.
from that place, two ladyiessuits, one watch, one purse and two mobile
phones were recovered by the police party. Though PW-14 denied that any
such recovery was effected from the spot. However, the testimony of PW-6
had remained unshattered on that point. The prosecution did not seek any
opportunity to recall and re-examine this witness so as to
confront/contradict him on that part of his testimony wherein he had stated
that the belongings of the deceased were recovered from nearby the spot
where the dead body was lying. His statement, therefore, proves that the
recovery of female purse/bag, two mobiles, one watch and suits had not
been effected at the instance of either of the two accused namely Vijay
Kumar alias Sonu and Sushil Kumar alias Lovely and the same had been
planted upon them to involve them in the subject crime and, therefore, the
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evidence led by PW-14 on this point cannot be acted and relied upon
beyond doubt. No other evidence could be produced on record by the
prosecution to connect the appellants-Sushil Kumar and Rajesh Kumar with
the offences punishable under Section 120-B of IPC, 201 and 404 of IPC
and, therefore, in our opinion, the prosecution had failed to bring any cogent
and convincing evidence either circumstantial or direct of such nature which
could be considered to be sufficient to prove the involvement of the
appellants-Sushil Kumar and Vijay Kumar. Therefore, the findings as to
guilt of both these accused for commission of offences punishable under
Sections 120-B, 201 & 404 of IPC are not sustainable and they become
liable to be reversed and set aside. At this juncture, it is considered to be
relevant to mention that though the appellant-Rajesh Kumar had also been
held guilty and convicted under Section 120-B of IPC but on applying the
same reasonings as applied in the case of appellants-Vijay Kumar and
Sushil Kumar who were allegedly co-conspirators, we have no hesitation to
hold that the prosecution failed to prove that the appellant-Rajesh Kumar
had entered into any criminal conspiracy with these appellants or with any
other person at any point of time. Therefore, so far as the charge under
Section 120-B of IPC is concerned, the same cannot be stated to be
sustainable as against appellant-Rajesh Kumar.
30. In Uppa alias Manjunatha v. State of Karnataka, (2013) 14
SCC 729 it was held by Hon'ble Apex Court that when an accused is held
guilty and sentenced to imprisonment, confirmation of sentence by the High
Court is justifiable only in the event of giving sound reasons upon analysis
of material evidence. On re-appreciating the entire evidence produced on
record and in view of reasoning as recorded above, we are of the opinion
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that the circumstances established on record rule out any possibility that
apart from the appellant-Rajesh there could be any other person who had
committed the murder of the victim. The circumstances from which an
inference of guilt is drawn as against the appellant-Rajesh are cogently and
firmly established and unerringly point towards his guilt of committing
murder of the victim and also prove that after causing death of the victim,
he had removed jewellery from the dead body of the victim and had pledged
the same for a sum of Rs.6000/- thereby criminally misappropriating the
same and had also thrown her dead body in the bushes in the area of Village
Sujanpur to cause disappearance of evidence of offence of murder against
him and to screen himself from legal punishment and thereby was proved to
have committed the offences punishable under Sections 201, 302 and 404 of
IPC. Therefore, the findings as to guilt of the appellant-Rajesh Kumar for
commission of offences punishable under Sections 201, 302 and 404 of IPC
as recorded by learned trial Court are upheld and affirmed and appeal filed
by the appellant Rajesh assailing conviction under these sections is
dismissed. However, as per the discussion as made above, the guilt of the
appellant-Rajesh for commission of offences punishable under Sections
120-B and 376 of IPC has not been established beyond doubt and, therefore,
the findings as given by learned trial Court as to guilt of the appellant-
Rajesh under these sections are reversed and set aside. Consequently, he is
acquitted of charges under Sections 120-B and 376 of IPC and his appeal is
accepted to that extent.
31. It is further held that the prosecution failed to produce
sufficient, cogent and convincing evidence of such nature on record which
can be acted and relied upon beyond doubt to prove that the appellants-
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accused Vijay Kumar and Sushil Kumar had entered into any criminal
conspiracy with the appellant-Rajesh, had caused disappearance of any
evidence of the offence relating to the murder of the victim and had
criminally misappropriated any property belonging to the victim by
removing the same from her dead body after her death. Therefore, the
appeal is allowed qua the appellants-Vijay Kumar and Sushil Kumar and
they are acquitted of the offences for which they had been held guilty and
convicted. They be released forthwith if in custody.
32. Before concluding, we also consider it appropriate to deal with
one more argument as raised by learned counsel for the appellant-Rajesh
Kumar who had submitted that the learned trial Court could not award
rigorous imprisonment for life to be continued till remainder of natural life
of the appellant. The learned trial Court while holding the appellant-Rajesh
Kumar guilty for commission of offence punishable under Section 302 of
IPC had awarded rigorous imprisonment for life which is to continue till
remainder of his natural life. There is force in the argument of the appellant
as in view of decision reported in Union of India v. V. Sriharan @
Murugan and others, 2016 (7) SCC 1, the power to impose a modified
punishment providing for any specific term of incarceration or till the end of
convict's life as an alternate to death penalty can be exercised only by the
High Court or the Supreme Court and not by any other inferior Court.
Therefore, the impugned order of sentence as recorded by learned trial
Court to the extent to which it awards sentence for imprisonment of the
remainder of the life to the appellant-Rajesh Kumar for offence punishable
under Section 302 of IPC, cannot be sustained. Accordingly, we modify the
sentence so imposed upon the appellant-Rajesh Kumar from rigorous
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imprisonment for remainder of his natural life to rigorous life imprisonment.
No interference on the order of sentence qua remaining offences is required.
(RITU BAHRI) (MANISHA BATRA)
JUDGE JUDGE
24.01.2023
manju
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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