K.C. Sharma, J.
71. This criminal appeal by appellant Surajbhan arises out of the judgment and order dated 27.9.1999 passed by the learned Judge, Special Court (Communal Riots and Man Singh Murder Case), Jaipur, whereby the learned Judge found the appellant guilty for offence under Sections 302/120B, 364, 379 and 201 IPC and accordingly convicted and sentenced him in the manner stated below:
Under Section 302/120B IPC Imprisonment for life and fine of Rs.
10,000/-, in default, to further under go
simple imprisonment for one year
Under Section 364 IPC to undergo 10 years'' rigorous
imprisonment with a fine of Rs. 5000/-,
in default thereof, to undergo 6 months''
simple imprisonment
Under Section 379 IPC to undergo 2 years'' rigorous
imprisonment
Under Section 201 IPC to under to 3 years'' rigorous
imprisonment with a fine of Rs. 2000/-,
in default thereof, to further undergo 3
months'' simple imprisonment
2. Succinctly stated the facts of the case are that at 9.45 PM on 27.5.1993 PW 5 Dhokal Ram lodged a written report, Ex.P.4 to the SHO, Police Station, Brahmpuri, Jaipur alleging therein that on 24.5.93 at about 11-12, in the night while his son Hanuman was sleeping, one Jai Singh Gurjar came to his house and called his son. Hearing the call, his younger son Shyam who was awakened got Hanuman awakened. Jai Singh asked Hanuman to accompany him to Daruheda and also assured that they will return by 6 AM. As per the written report, his son Hanuman left the house along with Jai Singh Gurjar in Jeep No. RPH 371. Dhokal Ram also annexed the photographs of Hanuman and Jai Singh with the written report and requested the police to trace out his son Hanuman. On receiving the report, the SHO handed over investigation to PW 19 Hakim Singh, Assistant Sub Inspector with the direction to trace out both the missing persons.
3. While investigation was being carried out by ASI Hakim Singh, in the meantime, the SHO of Police Station Brahmpuri received a report Ex.P.2 which was submitted to SHO, Police Station Jalupura, Jaipur by PW 3 Dilip Mathur. In the subsequent report Ex.P.2, Dilip Mathur claimed himself to be the owner of Jeep No. RPH 371, which was being kept at Ajmeri Gate Taxi Stand. Jai Singh was driver on that jeep. Dilip Mathur alleged that on 24.5.93 at 11.00 PM two persons came at the Taxi Stand and asked Jai Singh to take them to Daruheda in the taxi of his possession. Jai Singh alongwith aforesaid two persons first went to the house of Hanuman. Having satisfied, Jai Singh and Hanuman took these two passengers in Jeep No. RPH 371 and left for Daruheda at 12.30 in the night. As per the report, Jai Singh had to return by 25.5.93, but both Jai Singh and Hanuman did not return till 27.5.93. Lastly, it was stated in the report that despite all sincere efforts to trace out Jai Singh and Hanuman at various places viz., Daruheda, Rewari, Bhiwadi, Gurgao etc., whereabouts of missing persons could not be known. The SHO, Brahmpuri ordered to tag the report of Dilip Mathur with the report Ex.P.4 lodged by PW 5 Dhokal Ram and directed Hakim Singh ASI to carry out investigation on the report of Dilip Mathur as well.
4. Having completed inquiry on the report submitted by Dilip Mathur, PW 19 Hakim Singh, AS1 submitted the inquiry report, Ex.P.14, upon which a case No. 130/93 was registered at Police Station Brahmpuri vide FIR Ex.P.15. As per the report, Ex.P.14, the Investigating Officer found that two unknown persons with an intention to gulp the jeep, took away the jeep by deceiving the driver and his companion and for that purpose Jai Singh and Hanuman were abducted, the Investigating Officer concluded that offence punishable under Sections 420 and 365 IPC was committed.
5. After registering the case vide FIR, Ex.P.15, the police proceeded with investigation. In the course of investigation, police recorded the statements of witnesses u/s 161 Cr.P.C. Police arrested accused Rishi Pal, Krishan Chand and appellant Surajbhan vide arrest memos Ex.P.26, 27 and 28, respectively. Accused Rishipal furnished information, Ex.P.30 as regards recovery of watch and licence of a shop in the name of Hanuman. Accused Kishan Chand furnished information (Ex.P.31) u/s 27 of the Evidence Act regarding shirt, trouser and shoes. Appellant Surajbhan also furnished information, Ex.P.29 regarding stepni of the jeep in question. In pursuance of their information the items referred in the information memos were recovered from their possession vide recovery memos Exs.P.11, P.8 and P.9, respectively. The accused also pointed out the place of occurrence vide Exs. P. 10, P.12 and P.23 After completion of usual investigation, the police submitted a charge sheet against the accused persons in the court of learned Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur. The learned Magistrate having found the case exclusively triable by the court of Sessions, committed the case to the court of Sessions, committed the case to the court of Sessions Judge. Ultimately, the case came up for trial in the court of Special Judge Communal Riots and Man Singh murder Case, Jaipur.
6. On the basis of evidence and material collected during investigation and submitted before the court and after hearing counsel for the parties, the learned trial court framed charges against the accused under Sections 302, 201, 120B, 379 and 364 IPC. The accused denied the charges and claimed trial. To prove its case, the prosecution examined as many as 26 witnesses and exhibited some documents. Thereafter, accused appellant Surajbhan was examined u/s 313 Cr.P.C. It may be stated that accused Rishipal and Krishan Chand died during trial after framing the charges.
7. After conclusion of trial and hearing counsel for the accused and the Public Prosecutor, the learned trial Judge found the accused appellant guilty for committing offence under Sections 302/120B, 364, 379 and 201 IPC and accordingly convicted and sentenced him in the manner stated above. Hence the present appeal by appellant Surajbhan.
8. We have heard Mr. Sanjay Tyagi, learned counsel for the accused appellant and Mr. B.M. Sharma, learned Public Prosecutor and have gone through the judgment under appeal, the evidence and material available on record.
9. Admittedly, there is no witness to the occurrence, and the entire edifice of the prosecution case is rested solely on circumstantial pieces of evidence. It is well settled position of law that in a case which is based purely on circumstantial evidence, it has to be examined minutely that the circumstances relied upon should be of conclusive nature and they should exclude every possible hypothesis except the one to be proved and that the chain of evidence must show that in all human probability the act must have been done by the accused. The circumstantial evidence should unmistakably point to the only conclusion that the accused and none other perpetrated the alleged crime. The question as to the obligation to be discharged by the prosecution and what should be the conditions required to be fulfilled before a case against an accused which hinges solely on circumstantial evidence must be fulfilled, has been the subject matter of consideration before various High Courts and the Apex Court in series of cases. Reference may be made to one of the judgments of the Apex Court in Sharad v. State of Maharashtra (1), wherein their Lordships have held that following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:
1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must or should'' and not ''may be'' established;
2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. the circumstances should be of a conclusive nature and tendency;
4. they should exclude every possible hypothesis except the one to be proved, and
5. there must be a chain of evidence to complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accuse".
10. As per the prosecution case and from the evidence and material on record, we find following circumstances existing against the accused appellant:
(1) the presence of appellant Surajbhan at the time of hiring the jeep and the deceased being last seen in his company;
(2) Presence of accused Suraj Bhan at Daruheda along with Jai Singh and Hanuman at the Hotel of PW 1 Padam Singh;
(3) Accused appellant Suraj Bhan came along with the jeep and offered the jeep for sale and also confessed that he, Rishipal and Krishan Chand had murdered Jai Singh and his companion boy;
(4) Accused appellant Suraj Bhan brought the jeep for repairs to the shop of Jagbir Singh;
(5) Pointing out the place of murder, by accused Surajbhan, and
(6) Recovery of the stepni of the hired jeep.
11. Now, in the light of the law laid down by the Apex Court, we have to examine whether the learned trial court has rightly recorded the finding of guilt as against appellant Surajbhan and that the circumstantial evidence relied upon by the prosecution unmistakably point to the only conclusion that accused appellant Surajbhan along with two others (since deceased) and none other is the perpetrator of the crime.
12. As regards first circumstance, the first witness in the series is PW 23 Anil Kumar who, at the relevant time, was engaged in the job of taxi driving. He deposed that on 24.5.93 at about 10-10.30 PM, two persons came to him at Ajmeri Gate Taxi stand for hiring taxi and asked for going to Daruheda. He refused to visit Daruheda as his taxi was already booked. In the meantime a jeep No. RPH 370 or 371 came there and Jai Singh was driver on the said jeep. The persons came for hiring the jeep talked to the driver of the jeep and the driver agreed to go to Daruheda. The witness then stated that they were talking in Haryanavi language. According to the witness, it was later found that one Hanuman had also accompanied them. He stated that after about a month of hiring the jeep, it was heard that Jai Singh and Hanuman have been murdered. Lastly, this witness deposed that he can identify the two persons who had taken away Jai Singh along with them, if confronted. However, the witness could not identify accused appellant Surajbhan when he was confronted in the court. He stated that he was not in a position to say whether this person was one of them. In the identification parade, the witness had identified accused Kishan Chand (since deceased). It is thus evident that PW 23 Anil Kumar could not identify appellant Surajbhan either in the court or in the identification parade. Therefore, it would not be safe to rely on his testimony so as to establish the presence of accused Surajbhan having left for Daruheda in the company of Jai Singh and Hanuman.
13. PW 5 Dhokal Ram, father of Hanuman has deponsed in his examination in chief that Surajbhan and Krishan Chandra were the passengers in the jeep at the time when Jai Singh came to his house and called his son Hanuman. The witness stated that he himself had seen the passengers and had identified them in the court. However, the witness contradicted himself in his statement in examination in chief at a later stage, inasmuch as he stated that when he came down, Jai Singh along with the passengers and his son Hanuman had already left the place in a Jeep. The report, Ex.P.4 was lodged by PW 5 Dhokal Ram himself and the facts disclosed by him in his statement do not find place either in the report or in his police statement, Ex.D1. Therefore, his statement as to the presence of Surajbhan along with his son Hanuman at the time when Jai Singh came to his house in a jeep to call his son and all of them left for Daruheda cannot be believed.
14. It reveals from the statement of PW 5 Dhokal Ram that his son Shyam was present in the house at the relevant time and according to this witness Shyam had got his brother Hanuman awakened. In our view, Shyam could have thrown light on the fact of presence of accused persons at his house at the relevant time. But the prosecution has not examined Shyam as its witness.
15. From the discussion of evidence made above, it is evident that the prosecution witnesses have not been able to establish the presence of accused Surajbhan with Hanuman and Jai Singh at the time when accused Surajbhan alleged to have hired the jeep. Therefore, the first circumstance as to the presence of accused appellant Surajbhan or that he was last seen in the company of Hanuman and Jai Singh is of no help to the prosecution case.
16. To establish the second circumstance against the appellant, PW 1 Padam Singh has been examined to prove that on 25.5.93 Krishan Chandra and Surajbhan along with driver and a boy came to his hotel (Dhaba) in Daruheda at national highway No. 8 in a Jeep RPH 371 and they further proceeded to their village Nahera. But the witness in his court statement has deposed that he was informed of these facts by his servant Subhash. A perusal of his police statement, Ex.P. 1 reveals his presence at the time when accused Surajbhan and others came to his hotel in a jeep. But this witness has not supported these facts in his court statement and has been declared hostile and consequently, is of no help to the prosecution case.
17. To prove the third circumstance, the prosecution has examined PW 4 Ram Chandra. He has stated in his police statement u/s 161 Cr.P.C. that Surajbhan came along with Jeep No. RPH 371 and offered the said jeep for sale and to prove confession of Surajbhan that he, Krishan Chandra and Rishipal murdered the jeep driver and one boy and now they intend to sale the jeep for consideration of only Rs. 20,000/-.
18. PW 10 Jagveer Singh, who at the relevant time was engaged in the work of repairing cars in Dariyaganj, Delhi has been examined to prove the IVth circumstance. The witness denied the fact that Surajbhan appellant brought the jeep for repairs to his shop and the witness has not been declared hostile.
19. To prove the Vth circumstance, the prosecution has examined PW 25 Jai Bhagwan, PW 8 Randheer and PW 26 Akhilesh, Investigating Officer. Jai Bhagwan has categorically denied the fact that Surajbhan pointed out the place of murder of Jai Singh and Hanuman in his presence and, therefore, he has been declared hostile. PW 8 Randheer and PW 26 Akhilesh Kumar have not deposed a single word in this respect. Therefore, it is not, established that Surajbhan pointed out the place of murder. However, Section 25 of the Evidence Act absolutely excludes from evidence against the accused a confession made by him to a police officer under any circumstances. I may further be mentioned that in case a particular material fact is in exclusive knowledge of the accused and he makes a disclosure statement pertaining to the same, the disclosure statement is admissible only u/s 27 of the Evidence Act when it leads to recovery of material fact. In the case at hand the so called disclosure statement does not lead to any recovery of material fact. Therefore, in either way the so called pointing out the place of murder by accused appellant Suraj Bhan can be of no help to the prosecution.
20. Thus, the only evidence available against Surajbhan is that of recovery of stepni, which in our considered view, is also doubtful for the reasons to be stated below.
21. The stepni of jeep was recovered in the presence of PW 14 Chand Singh and PW 24 Pawanjeet Singh vide recovery memo Ex.P.9. But both these motbirs have been declared hostile. PW 6 Ghan Shyam has deposed that about a year back, Jai Singh driver had come to his house in a jeep and had asked for a tyre of the jeep. The witness stated that he did not remember whether he gave the tyre of stepni or not. The witness was declared hostile. However, he was permitted to be cross examined. In cross examination he admitted to have made statement marked A to B in his police statement (Ex.P.5) u/s 161 Cr.P.C., wherein he categorically stated that Jai Singh came to his house in a jeep along with two passengers and asked for stepni as he was leaving for Daruheda. He gave the stepni of his Jeep No. RJ 14 7612. Thereafter Jai Singh alongwith two passengers went away in Jeep No. RPH 371.
22. In this view of the matter, though it is proved that Ghan Shyam handed over the stepni of his jeep to Jai Singh but the recovery of stepni of jeep cannot be said to be made on the information and at the instance of appellant Surajbhan as both the motbirs of recovery have been declared hostile. Thus, appellant Surajbhan cannot be linked with the commission of offence even on the basis of last circumstance relied upon by the prosecution.
23. Learned trial court has convicted appellant Suraj Bhan under Sections 302/120B, 201, 379 abd 364 IPC only on the basis of recovery of stepni pursuant to the information furnished by Suraj Bhan, coupled with the recovery of wrist watch and licence of Hanuman from the possession of Rishipal (since dead) in pursuance of information furnished by him u/s 27 of the Evidence Act, considering it to be a piece of evidence of conspiracy between Rishipal and Suraj Bhan to commit murder of Jai Singh and Hanuman. The learned trial court also concluded that this part of information of accused Suraj Bhan u/s 27 of the Evidence Act that "JIS JEEP KO MEIN VA KRISHAN CHAND JAIPUR SE KIRAQYE PER LEKAR GRAM NAHARA GAHE THE" is admissible in evidence to prove the above fact. The trial court on the basis of above evidence concluded that they committed theft of the jeep and also abducted Jai Singh and Hanuman to commit their murder and further that they caused the dead bodies of Jai Singh and Hanuman to disappear with the intention of screening the offender from legal punishment.
24. Suffice it to say that only so much of the information as relates distinctly to the fact thereby discovered is admissible in evidence. Therefore, the trial court has erred in relying upon inadmissible evidence to draw its conclusions. We have concluded that recovery of stepni on the information of Suraj Bhan is of doubtful character, therefore, to put this circumstance in aid to draw conclusions is also erroneous. The recovery of wrist watch and licence on the information of Rishipal (without going into the merits whether such recovery is doubtful or not) is not at all a circumstance to connect the accused appellant with the crime.
25. Judged thus, we hold that the circumstances relied upon by the prosecution are not of conclusive nature and tendency. The chain of circumstances is completely missing and therefore, it cannot, in all human probability, be said that the act was done by appellant Suraj Bhan.
26. Before parting with the case, we would like to observe that corpus delicti of Jai Singh and Hanuman have not been found. However, it is well settled that even though it was not necessary for conviction that a corpus delicti should be found still there must be other clear and reliable evidence of murder. In other words, a person can be convicted even in the absence of recovery of corpus delicti, but there exist other clear and reliable evidence leading to the inference that victim concerned had met a homicidal death at the hands of the accused.
27. In Rama Nand v. State of Himachal Pradesh (2), it was held by their Lordships of the Supreme Court that "discovery of a dead body was not a sine qua non for a conviction. It was held that a homicidal death could be proved even on the basis of circumstantial evidence provided that the circumstances were of a clinching and definitive character unerringly leading to the inference that victim concerned had met a homicidal death at the hands of the accused.
28. In Shambhu Nath Mehra v. State of Ajmer (3), it was held that Section 106 of the Evidence Act does not abrogate the well established rule of criminal law that the burden lies on the prosecution to prove its case and that such burden never shifts. It has been held that Section 106 of the Evidence Act is not intended to relieve the prosecution of that burden, but that it only seeks to meet certain exceptional cases where it is impossible, or disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused.
29. Recently, the law propounded by the Apex Court in the cases referred to above was the subject matter of consideration before the Apex Court in Gulam Chaudhury and Ors. v. State of Bihar (4). Their Lordships of the Supreme Court, inter alia having considered the law laid down in the above cited case, held as under:
"There can be no dispute with the proposition of law set out above. As is set out in the various authorities (referred above), it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the persons had died and that the accused are the persons who had committed the murder".
30. In the instant case, keeping in mind the law laid down by the Apex Court that even in the absence of corpus delicti, conviction can be based on reliable and acceptable evidence, we do not find anything to connect the appellant with the commission of crime. As stated above, the present case solely rests on circumstantial evidence and, in our considered view, the circumstances are not of a clinching and definitive character, which could unerringly lead to the inference that Jai Singh and Hanuman had met a homical death at the hands Of accused appellant Suraj Bhan.
31. In the result, the appeal of appellant Suraj Bhan is allowed. The impugned judgment of the trial court convicting the appellant for offence under Sections 302/120B, 364, 379 and 201 IPC and awarding sentencing thereunder is quashed and set aside and the appellant is acquitted of the offences charged with. The appellant, who is in jail, shall be set at liberty forthwith, if not required in any other case.
