9911796707
TMI Blog1994 (5) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... e, however, directed run concurrently. The prosecution case is as follows : Rakesh Kumar PW2 father of deceased Varun Kumar, made a statement to the police on 16th of May, 1992 to the effect that on 12th of May, 1992 his wife and son had gone to Phagwara earlier in the day and on their return met him at his shop in the evening at about 6.15 p.m. His son went away to play while his wife went to the house to prepare meals. She shortly returned to the shop of Rakesh, Kumar PW2 bringing alongwith her a letter which she had picked from her house. In that letter, which was a ransom note written in Hindi, it was stated that Varun Kumar Mittal was in the custody of the persons writing the letter and that in case Rakesh Kumar wanted to see him alive, he should bring ₹ 60,000 on Thursday, exactly at 10.00 a.m. at Jalandhar Road ahead of Convent School and that he should come all alone and that in case of any mischief, his son and his wife would be lost to him for ever. The ransom letter also stated thereafter the receipt of money, Varun Kumar. would reach either the house or the shop within half an hour and that in case he tried to inform the police he should understand the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the house belonging to Sukhvinder Singh and his parents. On 25th of May, 1992 a police party headed by SI Amar Singh, PW10 interrogated Sukhvinder Singh, Sukhdev Paul and Puran Chand, after taking them into custody. Sukhvinder Singh, Sukhdev Paul and Puran Chand suffered disclosure statements, separately, Ex.PWl0/B, Ex. PW10/C and Ex. PW10/D respectively. These disclosure statements were attested by Hari Dutt and Jugal Kishore witnesses. The disclosure statement of Sukhvinder Singh and Puran Chand were also attested by Kashmir Singh, SI. In these disclosure statements, the three accused are alleged to have separately disclosed that they had kidnapped Varun Kumar on 12.5.1992 at 6.45 a.m. and later on strangulated him and put his body in a gunny bag, which they had concealed in the turiwala room of the residential house of Sukhvinder Singh and that they could point out that place and get the dead body recovered. The three accused then led the police party to the place mentioned by them and got recovered the dead body of Varun Kumar from that place after pointing it out. The dead body, after preparation of the inquest report, was sent for post-mortem examination and Dr. J.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... room in the house of Sukhvinder Singh owned by Mohan Singh and Surjit Kaur and that they could get the same recovered; (d) Recovery of the dead body of Varun Kumar from the house of Sukhvinder Singh, Mohan Singh and Surjit Kaur on the pointing out of the three appellants pursuant to their disclosure statements; (e) The deceased alongwith his parents was living as a tenant in the house of Mohan Singh and the landlord wanted to get the portion of the house under their tenancy vacated. The learned Designated Court after recording the evidence found all the circumstances established and opined as follows : In view of my above detailed discussion to observe here that accused Sukhvinder Singh, Puran Chand and Sukhdev Paul succeeded in murdering a minor child of 4-1/2 year, for obvious reasons as is apparent after going through the disclosure state-ments suffered by them Ext. PW10/B to Ex. PW10/D and also the recovery of the dead body vide Ex.PW10/E from the turiwala room of the residential house of accused Mohan Singh, Surjit Kaur and Sukhvinder Singh. Similarly, the prosecution has succeeded in establishing the guilt of Mohan Singh and Surjit Kaur as per statement of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thesis of their guilt. It was submitted that the Designated Court fell in serious error in relying upon the disclosure statements of Sukhvinder Singh, Sukhdev Paul and Puran Chand Ex, PW10/B, Ex.PwlO/C and Ex. PW10/D, leading to the recovery of the dead body of the deceased, because a mere search of the house of accused Mohan Singh, Surjit Kaur and Sukhvinder Singh by the investigating officer would have led him to the recovery of the dead body and, therefore recourse to the provisions of Section 27 of the Evidence Act was an abuse of the process of law, la this connection, learned counsel referred to the statement of Bhajan Singh PW 6 who stated that he had disclosed to the police about the presence of dead body in the house of Mohan Singh, as disclosed to him by the accused and argued that the ritual of recovery under Section 27 of the Evidence Act was introduced to support a false case. Even, otherwise learned counsel submitted, that the recovery was doubtful and the disclosure statements pursuant to which the recovery is said to have been made, did not inspire confidence and that the three disclosure statements were not admissible in evidence. Learned counsel vehemently argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of Section 3 of TADA would reveal that none of the ingredients of that Section have been alleged and established in the case. The prosecution evidence is totally insufficient to bring home the charge under Section 3 of TADA on any of the appellants. We must express our concern that the learned Designated Court recorded conviction of all the appellants under Section 3 of TADA without any discussion whatsoever in the judgment as to how the said provision was attracted to the facts of the case. Merely because the investigating agency had charge sheeted the appellants for an offence under Section 3 of TADA, it did not mean that the Designated Court had to act mechanically and not even examine whether or not from the evidence led by the prosecution, an offence under Section 3 of TADA had been made before recording conviction under the said provision, None of the prosecution witnesses, not even investigating officer, implicated any of the appellants for committing an offence under Section 3 of TADA and the prosecution led no evidence whatsoever to bring the charge under that Section. Learned counsel for the respondents in all fairness conceded that the conviction of all the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon by the prosecution to connect Mohan Singh and Surjit Kaur with the crime have not been established beyond a reasonable doubt. We shall now take up the case of the three remaining appellants, namely, Sukhdev Paul, Puran Chand and Sukhvinder Singh. The first piece of circumstantial evidence relied upon against them revolves around the recovery of the dead body of Varun Kumar from the house of Sukhvinder Singh and his parents on the disclosure statement made by Sukhvinder Singh, Sukhdev Paul and Puran Chand Ex. PW.10/B, EX. PW10/C and Ex. PW10/D respectively. We are surprised at the manner in which the disclosure statements were recorded by the investigating agency and relied upon by the Designated Court. That Section 27 of the Evidence Act is an exception to the general rule that a statement made before the police is not admissible in evidence is not in doubt. However, vide Section 27 of the Evidence Act, only so much of the statement of an accused is admissible in evidence as distinctly leads to the discovery of a fact Therefore, once the fact has been discovered Section 27 of the Evidence Act cannot again be made use of to 're-discover* the discovered fact. It woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon the same. Admittedly, so far as Puran Chand is concerned, apart from the disclosure statement Ex. Pw10/D, there is no other piece of circumstantial evidence relied upon by the prosecution and once we rule out of consideration the disclosure statement allegedly made by Puran Chand Ex, PW10/D, the conclusion is inescapable that the prosecution has not been able to establish the case against Puran Chand beyond a reasonable doubt and there is no circumstance which can connect him with the alleged crime. The prosecution has led no evidence to show any connection inter-se so far as the three appellants are concerned. We shall now take up the case of Sukhdev Paul appellant. For the reasons already recorded while dealing with the case of Puran Chand, we hold that the so-called disclosure statement, Ex PW10/C, made by Mm is also inadmissible and cannot be used to connect him with the crime. The only other circumstance relied upon by the prosecution against him is that he is the author of the ransom letters Ex. PA and Ex. PC. To establish that the author of letters Ex. PA and PC is Sukhdev Paul. The prosecution has relied upon the report of the Asstt. Director (Documents), Forensic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own opinion by its own assessment of the report of the expert based on the data furnished by the expert. The function of an handwriting expert if to opine after a scientific comparison of the disputed writing with the admitted (specimen) writing with regard to the points of similarity and dissimilarity in the two set of writings. The second paragraph of Section 73 (supra) enables the court to direct any person present before it to give his specimen writing for the purpose of enabling the court to compare such writings with writings alleged to have been written by such person. The obvious implication of the words for the purpose of enabling the court to compare is that there is some proceeding pending before the court in which or as a consequence of which it is necessary for the court to compare such writings. The direction is therefore required to be given for the purpose of enabling the court to compare and not for the purpose of enabling an investigating or a prosecuting agency to obtain and produce as evidence in the case the specimen writings for their ultimate comparison with the disputed writings. Where the case is still under investigation and no proceeding are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er TADA before the Designated Court only. The direction given by the Tehsildar Executive Magistrate Sh. S.P. Garg to the appellant Sukhdev Paul to give his specimen writing was clearly unwar-ranted and not contemplated or envisaged by Section 73 of the Evidence Act. The prosecution has not disclosed as to at what stage of investigation or enquiry or trial was Sukhdev Paul appellant produced before the Ex-ecutive Magistrate PW13 to take the specimen writing of the appellant and why the specimen writings were obtained under directions of PW13 and not of the Designated Court. It is a mystry as to how the specimen writings required to be used at the trial against the appellant were directed to be taken by PW13, who was not enquiring or trying the case. To a specific question during his cross-examination, PW13 admitted at the trial, that when he had issued the direction to the appellant there was not document on his file, which could go to show as to under whose orders the appellant had been sent to him for taking his specimen handwriting. The manner in which the specimen writing of Sukhdev Paul was taken is totally objectionable and against the provisions of Section 73 of the Evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and the admitted writings had a common author. We, therefore, find that the case against Sukhdev Paul, appellant has not been established by the prosecution beyond a reasonable doubt. It, now, takes us to the case of Sukhvinder Singh. The circumstances relied upon by the prosecution to connect Sukhvinder Singh with the crime are : (1) The conduct of Sukhvinder Singh appellant as deposed to by PW1 Raj Kumar; (2) the making of disclosure statement by Sukhvinder Singh Ex.PWlO/B; (3) recovery of the dead body of Varun Kumar from the house of Sukhviader Singh pursuant to the above disclosure statement on the pointing out of Sukhvinder Singh. Though, at the trial another circumstance had also been pressed into aid against Sukhvinder Singh namely, the conspiracy between him and his parents with a view to evict Rakesh Kumar PW2 and have the portion of the house under his tenancy vacated but that circumstance was rightly not pressed before us and even otherwise in view of our findings regarding that circumstance while dealing with the case of Mohan Singh and Surjit Kaur it follows that the said circumstance cannot be used much less relied upon to connect Sukhvinder Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PWlO/E pursuant to the said disclosure statement. As a matter of fact the evidence of these witnesses which both cogent and inspires confidence, has remained totally unchallenged on any material aspect relating to the disclosure statement and the recovery of the dead body. The argument of the learned counsel for the appellant that had the investigating agency been more vigilant and had searched the place before the disclosure statement was made, they would have been able to discover the dead body of the deceased from the house of Sukhvinder Singh, may go to show that the investigating agency was somewhat negligent but by no stretch of imagination can it be used to discredit. The disclosure statement Ex.PW10/B made by Sukhvinder Singh and the recovery of the dead body pursuant to that disclosure statement vide recovery memo EX.PW10/E. These are both highly incriminating circumstance in so far as Sukhvinder Singh is con-cerned and both the circumstances have not only been successfully established by the prosecution but they also connect definitely and positively Sukhvinder Singh with the crime. Learned counsel for the appellant was unable to point out any there is no infirmity in so ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
