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TMI Blog2006 (11) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... handal, 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. 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 Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned 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. 4. 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. 5. 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king 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 adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 11. 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 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. He merely made a little retraction in his cross-examination. His evidence, if read as a whole, inspires confidence. 15. 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 (1996) 10 SCC 360]. 16. 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 dictat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 20. The learned Trial Judge relied upon Section 6 of the Evidence Act which, in our opinion, has no application. 21. 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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]. 26. 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 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. 27. 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 31. 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. 32. It was urged that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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