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CASE NO.: Appeal (crl.)  561-62 of 2005

PETITIONER: Gagan Kanojia & Anr.                                                     

RESPONDENT: State of Punjab                                                          

DATE OF JUDGMENT: 24/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T W I T H

CRIMINAL APPEAL NO.563 OF 2005

S.B. SINHA, J :

Appellants herein were prosecuted for commission of an offence  under Sections 364/34, 302/34 and 201/34 of the Indian Penal Code for  kidnapping and murdering two children, Abhishek and Heena, aged six and  eight years respectively, of one Kamal Kishore.  They were sentenced to  death.  A reference was made to the High Court under Section 366 of the  Code of Criminal Procedure.    

Appeals were preferred by Appellants also  before the High Court.   

By reason of the impugned judgment, the High Court while upholding  the judgment and conviction opined that the case cannot be said to be a  rarest of rare one meriting award of death penalty.   

The children went to take private tuition in the house of one Pooja.   They were supposed to come back by 6.30 p.m.  As they did not return,  Kamal Kishore went to her house.  He  was informed that the children had  left her house at 6.15 p.m.  The children were continued to be searched.  He,  however, came to know that one scooterist wearing trouser of black colour  and shirt of white colour had taken his children on his scooter.  A First  Information Report was lodged.  During investigation, the  school bags and  dead bodies of the children were recovered.  Appellant No. 1 herein is  related to the complainant.  They belong to the same community.  They were  neighbours.  They, however, said to be belonging to different unions of their  community being  that of  washermen.  

P.W-4 is a child witness.  He is nephew of Appellant No.1.  They live  in the same house.  He is said to have seen the children sitting on the scooter  of Appellant No.1  herein.  Appellant No. 1 was also seen riding the scooter  along with the children by PW-15, who was a taxi driver.   Both the appellants furthermore went to the house of PW-11, an  advocate and the leader of their community and made an extra-judicial  confession.  Extra judicial confession was also purported to have been made  by them before the father of Appellant No.1 herein, who also got his  statement recorded before the Magistrate under Section 164 of the Code of  Criminal Procedure.  He, however,  was not examined.  Appellant No.1 was  arrested on the basis of the said extra-judicial confession.  He made   disclosure statements leading to recoveries of clothes and tapes wherewith  hands and legs of the deceased children were said to have been tied.

The prosecution in proving the charges against the appellants herein,  inter alia, relied upon a purported letter  received by the said Kamal Kishore

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wherein ransom was demanded.  It was found to be in the handwriting of  Appellant No.2.

Mr. Mahabir Singh, the learned Senior Counsel appearing on behalf of  the appellants, in support of the appeals  would submit :

1)      Evidence of PW-4, Sahil, who was a child witness, could not have  been   believed  particularly    when :  (a)  he   was  examined  after   20 days;  (b) he identified the accused at the instance of PW-11; and   (c) he purported to have made the statement on the basis of a letter Ex.  D-I. 2)      Extra-judicial confession is a weak peace of evidence and the same  having not been corroborated in material particulars, no reliance could  be placed thereupon.

3)      The High Court committed an illegality in relying upon the statement  of the father of Appellant No.1 under Section 164 of the Code of  Criminal Procedure, which was not admissible in evidence.

4)      PW-11, before whom the purported extra-judicial confession was  made, having been called to the police station as also being a witness  to the recovery should not have been relied upon.

5)      Delay having occurred in recording the statement of PW-15, no  reliance thereupon could have been placed.

6)      Investigating officer having fabricated a part of the records, no  reliance could be placed upon the materials found on investigation.  

       Mr. D.P. Singh, the learned counsel appearing on behalf of the State,  on the other hand, would submit :

1)      Evidence of PW-4 must be judged keeping in view the fact that he and  Appellant No.1 were residing in the same house and as such he must  have obliged his family members in making  some  statements in his  favour. 2)      The letter Ex.D-1 having been produced by the accused could not  have formed the basis of his statement before the police after two  years, as was suggested on behalf of  the appellants to PW-4. 3)      PW-15,  Rajindra Kumar, being an independent witness, there is no  reason as to why his statement,  that he had  seen Appellant No.1 in  the company of the deceased children, should be disbelieved.

4)      Recoveries of tape and clothes and in particular the shirt and trouser  belonging to Appellant No.1 point out to his guilt.

5)      Finger prints of the appellants were also found on the bottles and          glasses which were recovered near the place from where the dead          bodies were recovered also corroborates the prosecution case. 6)      The letter demanding ransom was in the handwriting of Appellant          No.2 which was proved by an handwriting expert, being Deputy          Director, Documents, Forensic Science Laboratory, Chandigarh is          also a pointer to their involvement. 7)      Evidence of Pooja, who examined herself as PW-5, is also          corroborative of the fact that she came to know that the victims sat on          a scooter of a person whom they called as ’Chachu’, which is          admissible in evidence under Section 8 of the Indian Evidence Act,          1872.   8)      Extra-judicial confession made before PW-11, Rakesh Kumar          Kanojia, who was a President of the Dhobi Maha Sabha, cannot be          disbelieved, as both the appellants thought that he being an advocate          could save them from the criminal case.

       The prosecution case is based on circumstantial evidence.   Indisputably, charges can be proved on the basis of the circumstantial

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evidence, when direct evidence is not available.  It is well-settled that in a  case based on a circumstantial evidence, the prosecution must prove that  within all human probabilities, the act must have been done by the accused.   It is, however, necessary for the courts to remember that there is a long gap  between ’may be true’ and ’must be true’.  Prosecution case is required to be  covered by leading cogent, believable and credible evidence.  Whereas the  court must raise a presumption that the accused is innocent and in the event  two views are possible, one indicating to his guilt of the accused and the  other to his innocence, the defence available to the accused should be  accepted, but at the same time, the court must not reject the evidence of the  prosecution, proceeding on the basis that they are false, not trustworthy,  unreliable and  made on flimsy grounds or only on the basis of surmises and  conjectures.  The prosecution case, thus, must be judged in its entirety  having regard to the totality of the circumstances.  The approach of the court  should be an integrated one and not truncated or isolated.  The court should  use the yardstick of probability and appreciate the intrinsic value of the  evidence brought on records and analyze and assess the same objectively.  

       We would proceed on the well-known principles in regard to  appreciation of the circumstantial evidence which were noticed by the High  Court in the following terms :

"1)     There must be a chain of  evidence so far complete  as not to leave any reasonable ground for a  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.

2)      Circumstantial evidence can be reasonably made  the basis of an accused person’s conviction if it is  of such character that it is wholly inconsistent with  the innocence of the accused and is consistent only  with his guilt.

3)      There should be no missing links but it is not that  everyone of the links must appear on the surface of  the evidence, since some of these links may only  be inferred from the proven facts.

4)      On the availability of two inferences, the one in  favour of the accused must be accepted.

5)      It cannot be said that prosecution must meet any  and every hypothesis put forwarded by the accused  however far-fetched and fanciful it might be.  Nor  does it mean that prosecution evidence must be  rejected on the slightest doubt because the law  permits rejection if the doubt is reasonable and not  otherwise."

       PW-1 is Dr. Balbir Singh.  He conducted the post-mortem  examination.  It may not be necessary for us to deal with his deposition at  length; the homicidal nature of death of the victims being not in dispute.    PW-2 is a formal witness.  PW-3 is  Kamal Kishore.  The statements made  by him in the First Information Report for kidnapping and murder of his  children have not been doubted.  He proved the letter received by him  demanding ransom.  As noticed hereinbefore, the same was found to be in  the handwriting of Appellant No.2.  Sahil Kumar (PW-4),  is the child  witness, aged about 10 years.  He was examined by the learned Trial Judge  at some length.  He was found to be capable of giving evidence.  He deposed  that Appellant No.1 was his uncle being his father’s elder brother and they  reside in the same house.  He categorically stated in his evidence that on  08.06.2000 he saw Heena and Abhishek sitting on the scooter which was

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driven by Appellant No.1.   He asserted that he had seen the scooter and  could identify the same.  Even he gave the details of the place where the  children sat on the scooter of Appellant No.1.  He categorically stated that  Abhishek was reluctant to sit on the scooter but he saw Heena asking him to  do so saying that Gangan was their uncle, whereupon Abhishek also sat  thereon.   He also stated that Gagan was wearing a helmet.  The brother of  Kamal Kishore also visited the house of Appellant No.1 with him wherein   they found a friend of Gagan to be present.   PW-4 left for Ambala on the  next day.  He came back on 26.06.2000.  He accepted that he got his  statement recorded before the Magistrate.  A document Ex.D-1 was  produced by the accused, which  was shown to him, which according to him   was a letter written by Rakesh Kanojia (PW-11) and was given to him.  He  alleged that the contents of the said letter was dictated by the investigating  officer.  In his cross-examination, he reiterated his statement made in  the  examination in chief as also his statement made under Section 164 of the  Code of Criminal Procedure and in no uncertain terms stated that at about  6.15 p.m., he saw Gagan, Abhishek and Heena sitting on the scooter.  He,  however, stated :

"\005The face of the scooter driver was not visible due to  the helmet.  I had given the name of Gagan as told by  Rakesh  Kanojia\005"                              He denied the suggestion that he was tutored by the police.  He was  sought to be cross-examined by the public prosecutor in view of the  statement given by him, but for reasons best known to the court, the same  was not permitted.

Ordinarily, we would not have accepted the statement of PW-4, but  his statement that he had deposed on the basis of Ex.D-1 cannot be believed.   If Ex.D-1 was a document which was prepared by the investigating officer,  how it was produced by the accused counsel in cross-examination is beyond  all comprehensions.  The learned Trial Judge made a comparison between  the statements contained in Ex.D-1 and those made under Section 164 of the  Code of Criminal Procedure so as to find a large number of discrepancies  therein, as would appear from  paragraphs 105 and 106 of his judgment.  It is  not contended that the same was not correct.  Thus, Ex. D-1 cannot be a  document which was prepared by Nirmal Singh at the instance of PW-11, as  suggested on behalf of the Appellants or otherwise.  How the said letter  could be produced by the defence after two years is again beyond all  comprehensions.  Even if we discard that part of the statement made by PW- 4, there is no reason as to why a part of his statement, namely, he was  present when the children were taken by Gagan on his scooter, should be  disbelieved or at least should not be taken into consideration for the purpose  of corroboration.

        He merely made a little retraction in his cross-examination.  His  evidence, if read as a whole, inspires confidence.  

       It is well known that for certain purpose, the statement of even a  hostile witness can be believed. [See State of U.P. v. Ramesh Prasad Misra  and Another \026 (1996) 10 SCC 360].  

       We have, therefore, no hesitation in opining that Ex. D-1 was not and  could not have been written by Rajender Kumar Kanojia at the dictation of  the investigating officer or otherwise.  To the aforementioned extent, we find  force in Mr. Singh’s contention.   

PW-15,  Rajinder Kumar,  is another witness who  also last saw the  victims sitting on the scooter of Appellant No.1. On 08.06.2000, he  had  gone to the house of his partner Paramjit Singh, which is just near the place  of occurrence, and had seen three children coming on foot after getting  tuition.  He saw two children, namely Heena and Abhishek boarding the  scooter of Appellant No.1, who drove the scooter towards Cine Payal  Cinema.  He was undoubtedly examined on 12.06.2000. He, however,

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disclosed the reason therefore.  He categorically stated that he had left for  Delhi on the same night and on his return he came to know that the police  had been visiting his house.  It is not unlikely that the police might have  come to know that he was also present at the relevant time.  It is important to  note that Appellant No.1 even had not been arrested at that point of time.   There was, thus, no reason for him to implicate Appellant No.1 as he had no  animosity with him.  He gave a very vivid and detailed description of the  place from where the children came boarded the scooter.  According to him  the children were standing about 5-7 feet away from him on the street from  where they boarded the scooter.  He did not notice Sahil (PW-4).  He also  accepted that he did not know Sarita.  There was no reason for him to know  her.  There is, thus, no reason as to why we should disbelieve his evidence.

       PW-5, Pooja, is a tutor.  She merely stated that she had gone to the  residence of other student, Sarita,  having been informed that Abhishek and  Heena did not return to  their house.   Sarita told her that Heena had called  some person wearing helmet, white shirt, black pant, as ’Chacha’ and then  Abhishek and Heena sat on the scooter.   

Sarita having not been examined, we do not intend to place any  reliance on her statement.  We also do not accept the contention of Mr. D.P.  Singh that her statement is admissible under Section 8 of the Evidence Act.    Section 8, inter alia,  speaks about  the conduct of an accused. The  statements made by Sarita before Pooja vis-‘-vis the conduct of the victims  did not form part of the same transaction.  Unless any fact or statement  forms part of the same transaction, it will not be admissible in evidence.  Sarita had not identified the accused.  Sarita had not been examined and,  therefore, the hearsay evidence of Pooja could not have been relied upon  being based upon the purported statement of Sarita.  As regards conduct of  the victims vis-‘-vis the person about whom she was informed and whose  identity was not known, cannot be said to be admissible in terms of Section  8 of the Evidence Act.

The learned Trial Judge relied upon Section 6 of the Evidence Act  which, in our opinion, has no application.   

P.W. 10 is Rakesh Kumar, brother of Kamal Kishore.  He deposed  that he had also searched for the missing children.  He was also a witness to  the recoveries of the school bags and dead bodies.  He proved that it was  Sahil who had informed him that Gagan was seen with the children.   Contention of Mr. Mahabir Singh, if that was so, Gagan should have been  named in the F.I.R., but it is not denied that on the basis of the said  statement,  Kamal Kishore and the witness had gone to his house, but he was  not found there.  As they were merely searching for the children, they might  not have thought  at that time that Gagan had kidnapped the children.   Ordinarily a near relation would not be suspected.  He categorically stated  till that time, it was not known who was the accused when the dead bodies  were recovered.  We do not see any reason to disbelieve his evidence.   

PW-11 is Rakesh Kumar Kanojia.  He was the President of the Dhobi  Maha Sabha, Punjab.  Appellant No.1 was also a member thereof.  He knew  the family of Appellant No.1.  He was also an advocate.  According to the  said witness, on 13.06.2000, Gagan together with another person, Rajinder  Kumar, came to his residence and disclosed about a plan they had hatched   to kidnap the children for ransom.  Each and every detail of the mode and  manner in which the  plan was to be implemented was disclosed by them.

Extra-judicial confessions made by the appellants separately have  been stated by the said witness in sufficient details.  He was extensively  cross-examined, but his statement made in examination in chief remained   unshattered.  He denied and disputed that Ex. D-1 was in his handwriting.   The only comment made by Mr. Mahabir Singh in regard to his evidence  was that he was called to the police station on 16.06.2000 by the  investigating officer.  He accepted the same.  We do not see any reason as to  why he would not visit the police station if called upon to do so by the

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investigating officer.  He did not deny or dispute that he was also a witness  to the recoveries.  He had no other option but to go to the police station as  was asked by the investigating officer.  Even no suggestion has been given  that he was inimically disposed towards Gagan or there was any animosity   between the two families.

Mr. Mahabir Singh relied upon a decision of this Court in State of  U.P. v. Arun Kumar Gupta [(2003) 2 SCC 202],  wherein  the evidence of a  witness was not believed, as he was taking extra-ordinary interest in the  investigation and was present at practically  every important place and time  in the course of investigation.  The said decision cannot be said to have any  application in the instant case. PW-11 was examined by the prosecution to  prove extra-judicial confession made before him by the appellants  We do  not see any reason as to why he would be disbelieved.  The learned Trial  Judge as also the High Court rightly relied upon his statement.   

Extra-judicial confession, as is well-known, can form the basis of a  conviction.  By way of abundant caution, however, the court may look for  some corroboration.  Extra-judicial confession cannot ipso facto be termed  to be tainted.  An extra-judicial confession, if made voluntarily and proved  can be relied upon by the courts.  [See Sukhwant Singh @ Balwinder Singh  v. State through CBI - AIR 2003 SC 3362].          Extra-judicial confession, however, purported to have been made by  Appellant No.1 before his father, which was recorded in his statement before  the Magistrate under Section 164 of the Code of Criminal Procedure,  was  not admissible in evidence.  [See State of Delhi v. Shri Ram Lohia - AIR  1960 SC 490 \026 para 13; and George and Others v. State of Kerala and  Another (1998) 4 SCC 605 para 36]. He was not examined by the  prosecution.  He might not have been examined for good reasons.  At one  point of time, he might have been sure about the involvement of his son, but  at a later stage, he would have thought not to depose against him.          

       In a case of this nature, it was also not expected that the family  members of Appellant No.1 would depose against him, as regards recovery  of clothes which were recovered from his own house. The prosecution  furthermore has brought on record the recovery of trouser and shirt of the  accused.  The colour of the said garments is not in dispute.  The fact that the  same were not belonging to him has also not been canvassed before us.   Place of kidnapping has also not been disputed before us.  Apart from PW-4,  PW-11 is also a witness to the said fact

       Recoveries of school bags of the deceased children and their dead  bodies have also been proved, which have neither been denied nor disputed  before us.

       We may notice now that the  recovery had also been made of empty  bottles and glasses.  The said recovery has been proved by Sub Inspector  Baldev Singh, PW-17.    PW-10, Rakesh Kumar, stated in his evidence that  Deep Public School from whose ’Ahata’ the empty bottle and glasses had  been recovered was at a distance of 100 yards from the place wherefrom the  dead bodies of the children were recovered.  PW-20, Inspector Nirmal  Singh,  recovered empty bottle of liquor containing a few drops thereof as  also two glasses.  PW-16, Sub Inspector Hardeep Singh, found the traces of   finger prints on those articles.  He developed the finger prints on the glasses,  which were comparable.  They were sent to the Finger Print Bureau, Phillaur  and the report, which was marked as Ex.PHHH, revealed that the thumb  impression lifted from the glasses by PW-16 and thumb impression obtained  from the appellants herein tallied with each other.   

       A letter was received by PW-3, Kamal Kishore, on 09.06.2000     wherein a sum of Rs.10 lakhs was demanded by way of ransom.  It also bore  a postal stamp. PW-3 was asked to tie a cloth of red colour on the roof of his  house, which would be an indication to show that he was ready to pay the  amount.  The said letter was marked as Ex.PT.  Thereafter specimen

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signature of the handwriting of both the accused were obtained under the  order of Shri H.S. Grewal, Judicial Magistrate, First Class, who examined  himself as PW-12; and the same was sent to an handwriting expert Shri  Balwinder Singh Bhandal, who examined himself as PW-21.  He submitted  a report which was marked as Ex. PJJ, stating that the said letter was in the  handwriting of Appellant No.2.

       Another important circumstance which weighed with the learned Trial  Judge as also the High Court was the recovery of a camera from the bed-box  of Appellant No. 1 as also remaining part of  the dirty white cloth with  which the arms of both the children were tied had been kept concealed  therein.  He furthermore disclosed that the deck with two speakers were also  kept concealed in the same room on the Angeethi and the said house was  locked by him and he had kept concealed the keys of the said house near the  outer gate underneath the same bricks.  His disclosure statement was  recorded and thereafter recoveries were made, which was proved by the  investigating officer, Inspector Nirmal Singh, PW-20.  His statement were  corroborated by ASI Mohinder Singh.  A cello tape was also recovered  which was used by the accused for pasting on the mouth and nose of both  the victims and for tying the plastic envelopes which were put on the faces  of both the children.

       Recoveries of the said articles were made pursuant to the information  given by Appellant No. 1.  The information given by  Appellant No.1 led to  discovery of some facts.  Discovery of some facts on the information  furnished by Appellant No.1 is a relevant fact within the meaning of Section  27 of the Indian Penal Code.  It is, therefore, admissible in evidence and the  same could have been taken into consideration as a corroborative piece of  evidence to establish general trend of corroboration to the extra-judicial  confession made by the appellants.   

It was urged that the investigation was tainted.  We do not find any  reason to hold so.  Section 302 of the Indian Penal Code might have been  mentioned in some of the documents by the investigating officer, although  no case thereunder was made out till the recovery of the dead bodies.  But  we do not find that the same was made designedly.  One of the cautions  which is required to be applied is to see that actual culprit does not end up  getting acquitted.  Reliance, in this behalf, has been placed by Mr. Mahabir  Singh on Kishore Chand  v. State of Himachal Pradesh [(1991) 1 SCC 286].   In that case none of the circumstantial evidence could be proved.  Therein  indulgence of the investigating officer in free fabrication of the record was  established which was deplored  by this Court.

Keeping in view the circumstantial evidences, which have been  brought on records, we are satisfied that all links in the chain are complete  and the evidences led by the prosecution point out only to one conclusion,  that is, the guilt of the appellants herein.  They have rightly been convicted  of the offences charged against them by the learned Trial Judge.

An appeal had also been preferred by the complainant for enhancing  the sentence.

Mr. D.K. Garg, the learned counsel appearing on behalf of the  complainant, would appeal to us for enhancement of the sentence.  We, do  not think that the High Court has committed any error in opining that the  case is not one of the rarest of rare cases.

It is also not a case where we should exercise our extra-ordinary  jurisdiction in converting the penalty of rigorous imprisonment for life to  one of  imposition of death sentence.  We decline to do so.  

For the reasons aforementioned, both the appeals are dismissed.