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CASE NO.: Appeal (crl.)  871 of 2005

PETITIONER: Sunny Kapoor

RESPONDENT: State (UT of Chandigarh)

DATE OF JUDGMENT: 05/05/2006

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T   

WITH CRIMINAL APPEAL NO.  872 OF 2005 Ram Asre                                                                \005. Appellant

                                               Vs.

State of U.T., Chandigarh                                       \005. Respondent  

                                       WITH CRIMINAL APPEAL NO. 1699 OF 2005

Sanjay                                                          \005. Appellant

                                               Vs.

State of U.T., Chandigarh                                       \005. Respondent  

S.B. SINHA, J. :

       These appeals arising out of the same judgment were taken up for  hearing together and are being disposed of by this common judgment.         The appellants are rickshaw pullers. They were charged for  committing murder of one Satish Kumar Mehra.  He was a businessman.  He  used to run a proprietory firm known as M/s. Kala Udyog, Chandni Chowk,  Delhi.  The firm used to supply saris and other garments to the shopkeepers.   He on or about 18.9.1999 came to Chandigarh to collect his dues from the  businessmen to whom he had supplied saris.  He visited the shop of one  Pankaj Gulati in Sector 22-C, Chandigarh at about 7.30 p.m. on the same  day.  He allegedly prior thereto had collected a sum of Rs. 25,000/- in cash  and a cheque amounting to Rs.40,000/- from M/s. Amarsons Shop situated  in Sector 22, Chandigarh and also diverse sums from others including  Praveen Gulati and Satish Kumar Gulati.  He left for the bus stand to board a  bus to reach Delhi.  Praveen Gulati and Satish Kumar Gulatii, however,  received a telephone call from Nirmal Mehra, brother of Satish Kumar  Mehra, at about 11.30 a.m. that he had not reached Delhi. Praveen Gulati  enquired about him from other dealers.  When he was informed that Satish  Kumar Mehra had not reached Delhi, he was requested to make a report in  that behalf to police, pursuant whereto a report was made by him which was  recorded as DDR No. 23 at about 7.20 p.m. on 19.9.1999.  The SHO of the  police station received a wireless message in the morning of 20.9.1999 that a  dead body had been noticed behind the boundary wall of Udyog Bhawan,  near the road of Sector 17/18.  The Investigating Officer along with SI Janak  Singh, ASI Hira Lal, ASI Harinder Singh, ASI Parmjit Kaur, Constable  Pawan Kumar 161, Constable Paramjit Singh 439, Constable Jai Bhagwan  1556 reached the spot.  It was found that the dead body of one person was  lying in the ditch of water and his articles were seen nearby.  The articles

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consisted of driving licence on which photo and address of the deceased  Satish Kumar Mehra was noticed whereupon Praveen Gulati who had  lodged the DDR No. 23 dated 19.9.1999 was sent for.  Praveen Gulati  identified the dead body as that of Satish Kumar Mehra.  A First Information  Report was thereupon lodged as against unknown for commission of an  offence under Section 302/34 of the Indian Penal Code (IPC).  The brother  of the deceased Nirmal Mehra also reached Chandigarh.  He is also said to  have identified the dead body of Satish Kumar Mehra.         The appellants allegedly approached one Chander Prakash (PW-11)  who is said to be a social worker.  They had already told PW-11 that they  believed that the police was on the look-out for them.  According to him,  they came in a rickshaw and sought for his help.  While they were being  taken to the police station by PW-11, the police party met them.  They were  arrested as they were said to have made extra-judicial confessions about  their involvement in the crime before PW-11 .  They made confessions while  they were in the police custody.  They are said to have made further  confession which led to the alleged recovery of two rickshaws.  The  appellants were on the aforementioned basis put to trial.         Before the learned Sessions Judge, apart from the traders from whom  the deceased had collected the amount, the first informant and the brother of  the deceased, inter alia three other witnesses were examined on behalf of the  prosecution.         PW-19 was one Ramanand who was working with one Gian Chand  who was running a ‘rehri’.  The rickshaw pullers and the passengers of the  bus stand allegedly used to take their meals there.   He was examined in  court on 19.2.2002.  He was illiterate.  According to him,  about two-and-a- half years back at about 9.30 p.m. one person had come at his rehri for  taking dinner.  The said person was said to be under the influence of liquor.   After taking his meals, he paid a sum of Rs. 20/-.  Allegedly at some  distance, a rickshaw puller took him from there.  He identified the deceased  upon seeing his photograph in the driving licence.  He identified one of the  appellants herein, namely, Ram Asre  who also used to go to the said ‘rehri’   for taking his meals.         The prosecution examined one Vinod Kumar as PW-24.   He was a  tea vendor at Sector 17.   On 18.9.1999 at about 10.30 p.m., he is said to  have seen the accused along with another ‘boy’ coming from the side of  Sector 17 whereafter they allegedly went towards one Neelam.   He came to  know about the murder of a person on the next day in the morning.   According to him, the deceased was the same person who was seen along  with the accused on 18.9.1999 at about 10.30 p.m.  In his cross-examination,  he admitted that except the said date he did not remember any other date  when he had met any other person.  He had stated that all of them had come  in one rickshaw which was being pulled by Ram Asre and others were  sitting therein.  Allegedly all of them had come to have tea at his shop at  about 5.30 p.m. on that date.  He stated : "But I do not remember whether  the fact regarding the visit of deceased along with the accused at my shop on  that evening was found mentioned or not.  I did not know of the name of the  deceased.  Nor I recorded the same in my statement.  I came to know about  the murder on the next morning.  I had a talk with ASI Prithi Singh Tiger on  20.9.99 about this fact.  I had not discussed with anybody in that regard on  19.9.99.  It is wrong to suggest that the accused persons never came to my  shop nor they were known to me."   Inter alia relying on or on the basis of the said evidence brought on  record, the appellants were found to be guilty for commission of an offence  under Section 302/34, IPC.  They were sentenced to imprisonment for life.   An appeal preferred thereagainst by the each of the appellant was dismissed  by the High Court. The learned counsel appearing on behalf of the appellants in support  of the appeals had raised the following contentions : (1)     The recovery of the dead body on 20.9.1999 could not be  said to have been proved as Nirmal Mehra (PW-3), the  brother of the deceased, categorically stated that he had  reached Chandigarh on 19th evening itself and identified the  dead body in the night whereas according to the prosecution  the dead body was found in the morning of 20th September,

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1999. (2)     The evidence of Chander Prakash (PW-11) is not  trustworthy, inasmuch as he had neither stated nor  reproduced the exact words in which the appellants are said  to have made their extra-judicial confessions. (3)     Although both Ramanand (PW-19) and Vinod Kumar (PW- 24) categorically stated that the deceased was drunk, the  same does not stand corroborated by the post-mortem report. (4)      The appellants having not been charged under Section 397,  IPC and thereon no cash or any other article having been  recovered from them, the prosecution must be held to have  failed to prove the charges against the appellants.

Ms. Kamini Jaiswal, the learned counsel appearing on behalf of the  respondent, on the other hand, contended that the learned Sessions Judge  must be held to have committed a mistake, while taking down the deposition  of PW-3 as regards the date of recovery of the dead body as also the  identification of the deceased by PW-3.  In any event, the learned counsel  would contend that the judgment of the learned Sessions Judge as also of the  High Court can be upheld on the basis of the extra-judicial confessions made  by the appellants before PW-11. The specific case of the prosecution is that the DDR No. 23 was  registered at 7.20 p.m. on 19.9.1999 at the instance of Praveen Gulati (PW- 16).  The death of the deceased Satish Kumar Mehra evidently had occurred  in the night of 18th September, 1999.  From the evidence of the Investigating  Officer-Inspector Moti Ram (PW-25), it appears that he received a wireless  message at about 9.10 a.m. on 20.9.1999 that a dead body was seen lying  near Udyog Bhavan, Sector 17, Chandigarh .  He reached there along with  other police officers.  The articles belonging to the deceased were found  scattered near the dead body.  The articles included one driving licence.   From the driving licence, he came to know of the name of the deceased and  other details relating to his identification.  Praveen Gulati thereafter was  summoned at about 10.15 a.m. at the said place and he identified the dead  body.  A photographer was sent for who came and took the photographs of  the deceased at about 12 o’clock.  According to him, he remained at the  place of occurrence upto 3.30 p.m.  Before that, he must have sent the dead  body for post-mortem examination.  Dr. S.P. Sharma (PW-1) conducted the  post-mortem on the dead body of the said deceased Satish Kumar Mehra at  about 4.30 p.m. on 20.9.1999.  The cause of death was said to be ‘aspaxia’.   According to him, the possibility of the deceased dying 10 to 12 hours  before conducting the autopsy cannot be ruled out.   Nirmal Mehra (PW-3), brother of the deceased, in his deposition,  categorically stated that he reached Chandigarh at 7.00 p.m. on 19.9.1999.   At about 10.30 p.m. on the said date he came to know about a dead body  lying near Udyog Bhavan, Sector 17, Chandigarh.  He with his friends  reached there.  The police officers were already present at the said spot.  He  thereafter identified the dead body.  His sister-in-law, i.e., wife of the  deceased allegedly had disclosed to him that the articles which were on the  person of the deceased like watch and gold ring, had been missing.  He also  testified that one cheque and the driving licence were found near the dead  body.  According to him, he identified the dead body of the deceased before  the post-mortem examination was conducted.  Tea vendor Vinod Kumar (PW-24), it is significant to note, also  allegedly saw the accused and the deceased on 18.9.1999 at 10.30 p.m.   According to him, the person accompanying the accused persons was a boy.   He came to learn about the recovery of the dead body on the next day in the  morning, i.e. on  19.9.1999.  Although he did not testify that he had gone to  the place where the dead body was found or identified him as the person  who had come to his shop at 10.30 p.m., on the day previous thereto, i.e. on  18.9.1999, he made a statement that he had seen the deceased accompanied  by the accused on 18.9.1999 at about 10.30 p.m.  If his statement is to be  believed, the dead body was recovered on 19th morning itself.  Even in the  post-mortem report, we have noticed hereinbefore,  according to Dr. S.P.  Sharma (PW-1) the death of the deceased might have taken place 10 to 12  hours before conducting the autopsy.  On the aforementioned premise, it is

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difficult to believe the prosecution case. We may now notice the evidence of Chander Prakash (PW-11).   His  statements before the trial Judge were as under : "On 29.9.99 Sunny, Sanjay and Ram Asre came to my house in  village Badheri.  All the three accused are present in the Court today.  All the three accused persons told me that we all are plying rickshaw.   They also stated that on 18.9.99 we saw a person aged about 50 years  in a drunkard condition.  We took that person into the rickshaw of  Ram Asra and Sunny Kapoor caught hold of the person.  Sanjay  accused present in the Court sat in the rickshaw of fourth person  whose name I do not remember.  Thereafter, they told that they took  him in near the round about of Sector 16 and 17 (light point) and in  the abandoned place where the light was not available.  That person  was having a bag which was containing valuables.  On seeing that bag  they told that they became dishonest.  So, he was murdered by them  by strangulation with the hands.  They also told that they had  distributed booty among themselves.  They also told that the dead  body was thrown into a ditch of water near abandoned place of the  Sector 16/17.  The accused also told that the fourth culprit was sent by  them to his village with the direction that he should return after the  matter was cooled down.   The accused sought my help,  I being social  worker by saying that the police was after them.  On this I  accompanied all the three accused present in the Court to the police  station Sector 17, Chd.  However, on the way Inspector Moti Ram  SHO P.S. 17, met us near the chowk of Sector 22/23.  35/36 Chd.  I  told him the entire story as narrated to me by the accused.  Inspector  Moti Ram then recorded my statement\005.."  

 However, in the cross-examination he stated as under: "The accused present in the Court today came to me for the first  time on 29.9.99 at about 3/4 pm.  They told me that the police have  doubt on them regarding some murder and they seek my help.  The  police party met me on the way in Sector 22 near Kisan Bhawan.   Inspector Moti Ram knew me before this case  I being a social  worker.  I have never been a witness in any criminal case.  The further  culprit did not come to me and only accused present in the Court had  come to me.  The rickshaw belonged to the accused persons.  The  accused accompanied me on their rickshaw while I was on my cycle  when we started to go to the police station.  We were going together  when the police party met us.  The police party took the accused along  with the rickshaw from Sector 22, where the police party met us and I  left for my other work from there."     

According to him, thus, the accused came to him for the first time on  29.9.1999.  Why they would come for help, was not disclosed.  They only  wanted his help because  the police had cast some doubts upon them  regarding some murder.  It was on that basis alone that the appellants were  allegedly being taken to the police station. PW-11 did not disclose as to how  the appellants knew him.  He did not remember the name of the fourth  person.   According to the appellants, they formed common intention to murder  only after seeing the bag.  If the prosecution case is to be believed, the  deceased must be carrying the bag from the very beginning.  There was thus  no question of noticing the said bag by the appellants soon before the  occurrence for the first time.  If they had formed common intention to  commit a crime, the same must be for committing robbery by relieving the  deceased of the bag. Who had strangulated the deceased is not known.   It is  well known that to establish the common intention of several persons so to  attract the mischief of Section 34, IPC, the following two fundamental facts  have to be established; (i) common intention to commit an offence, and (ii)  participation of the accused in commission of the offences.  If the above two  ingredients are satisfied, even overt act on the part of some of the persons  sharing the common intention was held to be not necessary.  A finding that  the assailant concerned had a common intention with the other accused, is

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necessary for taking resort to Section 34.   In a recent decision in Munna  Chanda vs. State of Assam , JT 2006 (3) SC 366 [=(2006) 3 SCC 752], this  Court observed as under: "The concept of common object, it is well known, is different  from common intention.  It is true that so far as common object is  concerned no prior concert is required.  Common object can be  formed at the spur of the moment.  Course of conduct adopted by the  members of the assembly, however, is a relevant factor.  At what  point of time the common object of the unlawful assembly was  formed would depend upon the facts and circumstances of each case.  

xxx                                     xxx                                    xxx

It is, thus, essential to prove that the person sought to be  charged with an offence with the aid of Section 149 was a member of  the unlawful assembly at the time  the offence was committed.

\005\005The deceased was being chased not only by the appellants  herein but by many others.  He was found dead next morning.  There  is, however, nothing to show as to what role the appellants either  conjointly or separately played.  It is also not known as to whether if  one or all of the appellants were present, when the last blow was  given.  Who are those, who had assaulted the deceased is not known.   At whose hands he received injuries is again a mystery.  Neither  Section 34 nor Section 149 of the Indian Penal Code is, therefore,  attracted."    It is really a matter of great surprise that even though the appellants  had allegedly confessed their guilt, they would willingly be accompanying  PW-11 to the police station.  It is again a matter of surprise that they would  be meeting the Investigating Officer on the way.  We wonder as to how the  said Chander Prakash (PW-11) could know that Inspector Moti Ram (PW- 25) was the Investigating Officer of the case.  He did not say that the  appellants gave a vivid description of the deceased so as to enable the said  Chander Prakash to make a guess that the case related to the murder of  Satish Kumar Mehra.  It is also significant to note that as to what  statements  were made by the appellants by way of extra-judicial confessions had not  been disclosed.  It is wholly unlikely that all the three appellants would  make a joint statement.  PW-11 did not disclose as to whether any of the  appellants made the statements before him or all of them gave statements  one after the other.   It is wholly unlikely that the accused would make extra-judicial  confession to a person whom they never knew.  It also appears to be wholly  improbable that unknown persons would come to seek his help unless he  was known to be close to the police officers.  His statements, thus, do not  even otherwise inspire confidence.  While considering the question of value of extra-judicial confession of  an accused, this Court in Jaswant Gir vs. State of Punjab, (2005) 12 SCC  438, observed as under: "The first and foremost aspect which needs to be taken note of  is that PW 9 is not a person who had intimate relations or friendship  with the appellant.  PW 9 says that he knew the appellant "to some  extent" meaning thereby that he had only acquaintance with him.  In  cross-examination, he stated that he did not visit his house earlier and  that he met the appellant once  or twice at the bus-stand.  There is no  earthly reason why he should go to PW 9 and confide to him as to  what he had done.  According to PW 9, the appellant wanted to  surrender himself to the police.  But there is no explanation from PW  9 as to why he did not take him to the police station.  He merely stated  that the appellant did not turn up thereafter.  The circumstances in  which PW 9 went to the police station and got his statement recorded  by the police on 14-11-1997 are also not forthcoming.  In this context  the statement of PW 9 towards the close of the cross-examination  assumes some importance.  He stated that he had some cases pending  in the courts and that he was seeking the help of the police in

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connection with those cases and he was often going to Police Station  Julkan.  Thus, he could be a convenient witness for the prosecution.   That apart, the alleged confession made by the appellant, as narrated  by PW 9, is not in conformity with the prosecution case.  According  to the prosecution, all the three accused were involved and PW 9  stated so before the police and as per the statement made by PW 9 to  the police, all the three accused made the confession before him but  he gave a different version in the court and that is why he was treated  as hostile witness and leading questions were put to him by the  prosecution.  Thus, the credibility of this witness is in doubt.  One  more point to be noted is that the alleged statement of the appellant  that the deceased was in a drunken condition cannot be correct as the  doctor found no evidence of consumption of alcohol by the deceased.   

Having regard to these features, we do not find assurance from  all angles that the alleged confession attributed to the appellant by PW  9 is correct.  It is not safe to base the conviction on the doubtful  testimony of PW 9 who gave different versions before the police and  the Court.  The High Court omitted to critically evaluate the evidence  of PW 9 and failed to take into account the doubtful features of the  evidence."   

If there was any common intention to commit any crime, evidently the  same was to loot the valuables belonging to the deceased.  Curiously  enough, the appellants had not been charged under Section 397, IPC.  No  recovery was made from them.  In the absence of having been charged under  Section 397, IPC, it is difficult to hold the appellants guilty of commission  of murder, inasmuch as it has not been proved as to who amongst the  appellants or actually the fourth person had strangulated the deceased.  In  absence of any evidence that all of them were present at the time when the  deceased was strangulated, a charge under Section 302/34 could not have  been brought home.  Even Ramanand (PW-19), it may be noted, in his  evidence, did not say that the deceased was last seen in the company of the  appellants.  According to him, he had merely seen the deceased taking  dinner at about 9.30 p.m.  On that day, he merely saw Ram Asre.  He did not  say that the deceased left the bus stand in the rickshaw of Ram Asre.  He  furthermore did not disclose that even other appellants were present.  How  he could identify the deceased or any other passenger who had taken meals  at his rehri, is not known.  It is thus difficult to rely on his statements.   He  could remember and identify the deceased from the photograph, which was  appearing in the driving licence, is  difficult to accept.   This Court in Jaswant Gir vs. State of Punjab, (supra) observed that :

"\005\005  Without probing further into the correctness of the "last  seen" version emanating from PW 14’s evidence, even assuming that  the deceased did accompany the accused in their vehicle, this  circumstance by itself does not lead to the irresistible conclusion that  the appellant and his companion had killed him and thrown the dead  body in the culvert.  It cannot be presumed that the appellant and his  companions were responsible for the murder, though grave suspicion  arises against the accused.  There is considerable time-gap between  the deceased boarding the vehicle of the appellant and the time when  PW 11 found the dead body.  In the absence of any other links in the  chain of circumstantial evidence, it is not possible to convict the  appellant solely on the basis of the "last-seen" evidence, even if the  version of PW 14 in this regard is believed.  In view of this, the  evidence of PW 9 as regards the alleged confession made to him by  the appellant assumes importance."

The appellants have been convicted on the basis of circumstantial  evidence.  It is now well settled by a catena of decisions of this Court that  for proving the guilt of commission of an offence under Section 302 IPC, the  prosecution must lead evidence to connect all links in the chain so as to  clearly point the guilt of the accused alone and nobody else.   Recently in  Ramreddy Rajeshkhanna Reddy & Anr. Vs. State of Andhra Pradesh, 2006

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(3) SCALE 452, this Court has held as under:  

"It is now well-settled that with a view to base a conviction on  circumstantial evidence, the prosecution must establish all the pieces  of incriminating circumstances by reliable and clinching evidence and  the circumstances so proved must form such a chain of events as  would permit no conclusion other than one of guilt of the accused.  The circumstances cannot be on any other hypothesis. It is also well- settled that suspicion, however, grave may be, cannot be a substitute  for a proof and the courts shall take utmost precaution in finding an  accused guilty only on the basis of the circumstantial evidence. \005.

The last-seen theory, furthermore, comes into play where the  time gap between the point of time when the accused and the deceased  were last seen alive and the deceased is found dead is so small that  possibility of any person other than the accused being the author of  the crime becomes impossible. Even in such a case courts should look  for some corroboration."

According to the prosecution, another person was involved whose  name never figured during investigation.  He had not been arrested.   According to the prosecution, it was that person who had ran away with the  entire belongings of the deceased.   We have also noticed two glaring discrepancies in regard to the date  and time of recovery of the dead body.  The evidence of Ramanand (PW-19)  and Vinod Kumar (PW-24) who had allegedly last seen the deceased in the  company of appellant Ram Asre is not at all trustworthy.  It is furthermore  difficult to accept the statement of PW-24 that the deceased would come to  his shop from the side of Sector 17 kacha rasta for having tea along with all  the appellants.  A businessman would not ordinarily go to a small tea shop to  take his tea.  It is wholly unlikely that he would take tea together with a  rickshaw puller.  It would be absurd to suggest that he would go to a shop to  take tea with all the appellants together, who are all rickshaw pullers.  He  was a resident of Delhi.  There was hardly any likelihood that he would  personally know the appellants herein.  Even if it be assumed that he had  been moving from place to place in a rickshaw, the prosecution should have  brought some evidence to show that he had hired the rickshaw of either Ram  Asre or any other appellant.  The prosecution witnesses  stated about the  recovery of two rickshaws.  Who was the owner of the other rickshaw has  not been established.  Ram Asre’s rickshaw belonged to one Maharaj Deen  S/o Jhalu (PW-7) who had given his rickshaw to Ram Asre on rent, as stated  by him in his evidence.  He identified his rickshaw in the police station.  It is  not expected that the appellant  had  hired  both  the rickshaws.   Even no charge of conspiracy in terms of Section 120-B had also been  framed against them.  For the aforesaid reasons, we are of the opinion on the basis of such  evidence, it would not be safe to uphold the judgment of conviction and  sentence passed against the appellants herein.  We  set aside the impugned  judgment.  The appeals are allowed.  The appellants are directed to be set at  liberty forthwith unless  required in connection with any other case.