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TMI Blog2002 (9) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... has not preferred any appeal against the conviction as upheld by the High Court. Accused No. 1 and accused No. 2 and accused No. 2 having been convicted under Section 302 read with Section 120-B of the Indian Penal Code. 1860 (in short the IPC') were sentenced to suffer imprisonment for life and pay a fine of ₹ 20.000 each. It was stipulated that for default in paying the fine, each had to suffer another year of imprisonment. Similar was the case with accused No. 6. So far as the accused Nos. 3. 4, 5 and 7 are concerned, the High Court convicted and sentenced them at par with the other three accused. Factual scenario as highlighted by the prosecution is as follows: Swaran Singh @ Pappi (hereinafter referred to as the 'deceased') was running a finance company. Accused No. 2 (Ashok Kumar) and accused No. l (Ravinder Kumar) had taken huge amounts as loan from the deceased. They suggested to the deceased to enter into a Financial arrangement. On the fateful day i.e. 3rd August, 1994, deceased went to his business premises. After about 10 minutes of his arrival accused -Ravinder Kumar also reached his office. As the deceased had brought some money from his hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s presence was established as later on, a licensed revolver belonging to accused-Ravinder Kumar was recovered at the instance of Ravinder Kumar. The license of the revolver was seized from the house of Ravinder Kumar and father of the said accused produced the same before the police in the presence of witnesses. Pistol of the deceased was also recovered at his instance. The license in respect of the pistol was seized on personal search of the deceased at the spot of occurrence. One Hari Kumar (PW-18) stated that accused Ravinder Kumar and Ashok Kumar made a statement before him that they had got the deceased killed because he was demanding money from them. From the fact that the land was to be selected was only known to accused Ravinder Kumar and Ashok Kumar, an inference was drawn that it was these two accused w ho had hired the assailants and planted them well in advance for the ultimate elimination of deceased. The fact that accused Ravinder Kumar left the office of the deceased earlier and joined them at the Hotel was considered significant, as the intervening period was utilized by him to inform the assailants as to where they would be taking the deceased for the assaults ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the conspiracy was not examined. Even the Investigating Officer has admitted that there was no direct evidence of conspiracy. There was no evidence collected against the accused persons to link them with the crime till 11.8.1994 when suddenly material supposed to have come like a flood-gate. Initiation of action by the police is also shrouded in mystery. It has not been disclosed in either Trial Court or High Court as to how the police received information about the killing and arrived at the spot. Though it was claimed at some point of time that a telephone call was supposedly made, but the FIR was registered on the bias of reliable sources. There are no independent witnesses. It is surprising as alleged killing took place in the evening time at a highly populated place. The so called identification of the witnesses is highly improbable. Additionally, having discarded the evidence of PW-7 the Courts erred in believing the evidence of PWs. 8 and 9 who stand on the same footing. The presence of these witnesses is highly doubtful. Their behaviour was un-natural and there is no corroborative evidence. They are persons with criminal records. Since their presence is doubtful, Ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence. 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 other persons. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063), Eradu and Ors. v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of Karnataka, AIR (1983) SC 446, State of U.P. v. Sukhbasi and Ors., AIR (1985) SC 1224, Balwinder Singh v. State of Punjab, AIR (1987) SC 350, Ashok Kumar Chatterjee v. State of MP AIR (1989) SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR (1954) SC 621), it was laid down that where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum, (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability, (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits, (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. In Hanumant Govind Nargundkar and Anr. v. State of' Madhya Pradesh, AIR (1952) SC 343, wherein it was observed thus: It is well to remember that in cases where the evidence is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinctlv relates to the fact discovered is admissible in evidence against the accused, This position was succuinctly dealt with by the this Court in Delhi Admn v, Balakrishan. AIR (1972) SC 3 and Md. Inayatullah v. State of Maharashtra. AIR (1976) SC 483. The words so much of such information as relates distinctlv to the fact thereby discovered. are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate, The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If al! that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion: and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see Stale of Maharashtra v. Dam Gopinath Shirde and Ors, (2000) Crl.L.J 2301. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered.'' But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. Coming to evidence brought on record to substantiate the accusations, it is at least clear that accused Nos. l and 2 left in the company of the deceased. Some evidence has also been brought to establish the motive i.e. the indebtedness of the accused to the deceased. In addition to this is the evidence of PWs l and 2. So far as accused No. 2 is concerned, he almost' stands on the same footing as accused No. l. Additionally, Hari Kumar (PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, daggers etc. The deceased started running away towards the canal and the assailants followed him and assaulted him. Then PW-1 Immediately told him to inform the police, by which time the deceased had started bleeding. and that he ran to ring up the police. PW-2 however noticed that while the deceased was running, he asked accused A- 1 to bring the car but the latter did not move. Meanwhile, PW-2 went to the house of a contractor which was at a distance of 200 fts. from the place of occurrence to make the telephone call. When he came back, he found the dead body of the deceased lying on the road and heard accused A-2 telling accused A-l Kam ho gaya let us go to Jammu. The presence of PWsl and 2 at the place of occurrence is fortified from the fact that they were witnesses to the seizure memos Ex. PW-GS,PW-GS/l. PW-GS/2 recorded by the police immediately after incident. Evidence of PWs. 8, 9 and 18 are also relevant and their evidence is to the following effect. PW-8 (Surjit Singh) inter alia, stated as follows : On 3rd August, 1994 he had gone for repair of his vehicle to Dhiansar. He was at a tea stall near the garage when he saw vehicle Nos. 556 and 5408 parked o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revolver, sword, kirch and toka and stated that these were the weapons with which the accused were armed. Evidence of PW-18 (Hari Kumar) inter alia stated is as follows: He was the owner of a Halwai shop in Parade Ground. Jammu. On 3rd August. 1994, at about ! 1.00 a.m. accused Ravi Kumar came to the shop of Hari Kumar in his car No. 5408-CHO l and left for Mori Bazar. At I or 1.30 p.m., accused Ashok and the deceased came to his shop and told them that they were going to Hotel Asia for taking meals: They took some sweets from his shop and left in car No. 566 JK02B which belonged to A-l. After 10 or 15 minutes. A-2 also came to the shop and demanded a scooter for him for going to Hotel Asia. telling him that he needs the scooter since he had given his car to some friend. He did not give a scooter to A-2. Half an hour thereafter, he found car No. CHOl 5408 passing in front of his office shop carrying 7-8 boys out of which he identified Kishore Kumar (who is now dead). Car was being driven by a dark complexioned boy. Some factors which weighed with the High Court in upholding conviction of the three accused as was done by the Trial Court are the evidence of eye- witnesses, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis that even if it is accepted the two views are possible on the evidence, the one in favour of the accused was to be accepted and their acquittal should not have been rightly interfered with, [t is to be noticed that the Trial Court placed reliance on the evidence of Hari Kumar (PW 18) for the purpose of convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it was not held to be reliable. There was no cogent reason indicated as to why the same was termed to be unreliable. Additionally, recoveries were made pursuant to the disclosure made by them. Though, arguments were advanced that due procedure was not followed, in view of the evidence of the witnesses examined by the prosecution in that regard, we find nothing illegal ruling out its acceptance. There are certain additional features also. A pant was recovered from the house of Subhash kumar which had holes indicating passage of bullet. However, a chemist (PW 22) was examined to show when he had gone to purchase the medicine to be applied to the injury. It was submitted that so far as Santokh Singh (PW 7) is concerned, his evidence was held to be not reliable. Therefore, the identification of accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 9.00 p.m. on the spot. Thereafter. Gian Chand Sharma (PW 42) was asked to investigate into the matter. It was also noticed that the road between Bari Brahamana and Samba where the court was located was dosed due to traffic on account of heavy rains. Though, the road was open from Jammu to Bari Brahamana but it was closed from Bari Brahamana to Samba. The day's delay for the aforesaid purpose (the FIR has reached the Magistrate on 5.8.1994) cannot be said to be un-usual when proper explanation has been offered for the delay. The plea of delayed dispatch has been rightly held to be without any substance. Another point which was urged was the alleged delayed examination of the witnesses. Here again. it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the Trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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