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HIGH COURT OF DELHI
CRL.L.P. 213/2014
JUDGMENT
Through : Mr.Feroz Khan Ghazi, APP for the State along with SI Satish Kumar, P.S. Ali
Pur.
Through : Ms.Nandita Rao, Adv. for respondent no.1.
Mr.Javed Alvi, Adv. for respondent no.2, Rajender Singh.
Mr.Karan Sachchar and Mr.Tushar Sharma, Advs. for respondents no.3 and 4.
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.S.SISTANI, J (ORAL)
1. CRL.M.A.No.4181/2014 has been filed by the appellant/State seeking condonation of 33 days’ delay in filing the present appeal and CRL.M.A.No.4182/2014 has been filed seeking condonation of 6 days’ delay in re-filing the present appeal.
2. Learned counsel for the respondents submit that they have no objection if the present applications are allowed and delay is condoned. 2015:DHC:1592
3. Heard and for the reasons stated in the present applications, the same are allowed. Delay in filing and re-filing the present appeal is condoned. Let the appeal be taken on record.
4. Applications stand disposed of.
5. The present leave to appeal arises out of a judgment dated 17.8.2013 passed by learned Additional Sessions Judge-1, North, Rohini, Delhi, in Sessions Case No.866/2006, whereby the respondents stand acquitted for the offence punishable under Sections 363/364A/302/201/203120B of the Indian Penal Code.
6. The case of the prosecution, as noticed by the learned trial Court is that five year old child of Sube Singh went missing on 3.12.2003. The first ransom call was received by Sube Singh on 15.12.2003 whereby the caller demanded Rs.30.00 lakhs for release of his son. Another call was received by Sube Singh on 17.12.2013 whereby he was asked to come with ransom amount at Madak More, Jattari, PS Tappad, Aligarh, U.P. Although separate Police teams were constituted and fake bundles of currency notes were procured yet despite reaching the place, none was present to receive the amount. On 24.1.2004, elder brother of Sube Singh informed him that he had spoken to one of the kidnappers on 23.1.2004 and he had asked him to come on 29.1.2004 at about 6.30 p.m. near Hasayan More, Ratti Ka Nala, Hathras Road, however, the kidnappers did not show up.
7. On 8.2.2006 investigation was assigned to Inspector P.C. Jha, who recorded the supplementary statement of wife of Sube Singh. On 26.2.2006 one public witness Shatrughan had stated that respondent no.2, Rajender Singh, had confessed before him for committing the offence and one Pratap Singh also made a statement that respondent no.1, Salim Khan, had confessed before him that they had kidnapped the child, Master Virat, and they had given the child to one relative, but since the ransom money was not received, the relative, to whom the child had been entrusted, did not return the child and since the child recognised Salim Khan, the child was drawned in the Gangnehar.
8. The prosecution has examined 29 witnesses. Statements of the respondents were recorded under Section 313 of the Code of Criminal Procedure and they have denied all the incriminating evidence put to them.
9. Learned APP for the State submits that the trial Court has passed the order of acquittal based on the presumption, conjectures, surmises and without taking into account the evidence surfaced during the course of trial. Learned APP further submits that the learned trial Court has ignored the vital piece of evidence and has erred in not appreciating the testimony of PW-4, Sh.Pratap, who had testified that respondent no.2, Rajender Singh, had made an extra-judicial confession before him and PW-15, Col. (Retd.) Basant Kumar. Learned APP contends that the trial Court has failed to take into account that the locket of the child, Master Virat, was recovered at the instance of respondent no.1, Salim Khan and further the complainant, Sube Singh, had identified the school bag, which was recovered at the instance of respondent no.2, Rajender Singh.
10. Learned counsel appearing on behalf of the respondents submits that there is not a single piece of evidence, which would link the accused persons (respondents herein) to the crime. It is further submitted that the gold chain and the school bag have been planted inasmuch that the respondents would not keep the same for a period of almost three years from the date of the incident. Even otherwise, it is submitted that neither in the complaint made to the Police nor in the hue and cry notice there was any reference to the gold chain or the school bag. It is also contended that an extra-judicial confession is a week form of evidence and cannot be relied upon.
11. We have heard learned APP for the State and counsel for the respondents, and also carefully examined the evidence and the judgment passed by learned trial Court. In order to prove the guilt of the respondents the prosecution had relied upon the following circumstances as noticed by the trial Court.
12. The arguments of learned counsel for the State can be summarised as under:
(i) That the trial court has erred in not relying on the extrajudicial confessions made by respondents herein;
(ii) That the trial court has failed to take into account that locket of the child, Master Virat, was recovered at the instance of Salim Khan, respondent no.1, from beneath the floor of his house and further the school bag was recovered at the instance of Rajender Singh, respondent no.2, from an iron almirah, which was kept in the South-East direction in his room. Both these articles were duly identified.
13. The present case is based on circumstantial evidence. It is settled law that the circumstances, from which an inference as to the guilt of the accused is to be drawn, have to be proved beyond reasonable doubt.
14. Law with regard to the conviction on the basis of circumstantial evidence has been discussed in detail by the Supreme Court in the case of Harishchandra Ladaku Thange Vs. State of Maharashtra, reported at AIR 2007 Supreme Court 2957. It would be useful to reproduce the relevant paras:-
8. 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 acused or the guilt of any other person. (See Hukam Singh V. State of Rajasthan (AIR 1977 SC 1063), Eradu V. State of Hyderabad (AIR 1956 SC 31), Earaohadrappa V. State of Karnataka (AIR 1983 SC 446), State of U.P. V. Sukhbasi & Ors. (AIR 1985 SC 1224), Balwinder Singh alias Dalbir Singh V. State of Punjab (AIR 1987 SC 350) and Ashok Kumar Chaterjee V. State of M.P. (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 case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. [Also see 1996 (10) SCC 193; AIR 1990 SC 79; (1992 Crl. LJ 1104); AIR 1952 SC 343; AIR 1984 SC 1622; and AIR 1991 Supreme Court 1674:
15. The trial Court has rightly analysed the extra-judicial confessions, sought to be relied upon by the prosecution, and also rightly reached upon a conclusion that it would be highly unsafe to convict the respondents based on extra-judicial confession, which is sought to be relied upon by the prosecution.
16. We may notice that respondent no.1, Salim Khan, was a juice seller and the alleged confession is sought to be made by him to one of his customers, who happens to be the cousin of Subey Singh. The second extra-judicial confession is made by Rajender Singh to one, Shatrughan, PW-16, (public witness) who happens to be a rank outsider.
17. It has been repeatedly held that although an order of conviction can be passed based on extra-judicial confession but the Court must be extremely cautious and careful before relying on extra-judicial confession.
18. Although the prosecution has been able to establish that Master Virat, Son of Sube Singh, was kidnapped and initially ransom call was received by his father and thereafter by his uncle, as per the prosecution respondent no.2 Rajender Singh had made an extra judicial confession before PW-16, Shatrughan, and Salim Khan had made an extra judicial confession before Kalu Ram, PW-19. Before the credibility of these extra-judicial confessions can be considered, we deem it appropriate to revisit the law.
19. In a recent decision rendered by the Supreme Court of India in the case of Baskaran And Another v. State of Tamil Nadu, reported at (2014) 5 SCC 765, it has been held that if the extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can also solely form the basis of conviction. Relevant portion reads as under:
20. It would also be useful to refer to the observations made by the Supreme Court of India in the case of Rahim Beg v. State of U.P., reported at (1972) 3 SCC 759, wherein it has been held as under: “There was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. In the circumstances, it seems highly improbably that the two accused would go to Mohammad Nasim Khan and blurt out a confession.”
21. The law with regard to extra-judicial confession was discussed in detail by the Supreme Court in the case of Sahadevan and Another v. State of Tamil Nadu, reported at (2012) 6 SCC 403, wherein it has been held as under:
22. Upon analysis of the aforesaid judgments, the following principles can be culled out:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(iv) Such statement essentially has to be proved like any other fact and in accordance with law.”
23. Keeping the aforesaid principles in mind, we have examined the two extra-judicial confessions, which are heavily relied upon by the State. As per the testimony of PW-28, PW-16, Shatrughan came to the Police Station and his statement under Section 161 of the Code of Criminal Procedure was recorded. As per this statement of Shatrughan, respondent no.2, Rajender Singh, had met him and told him that about two and a half years ago he along with two other persons had kidnapped a child and handed him over to one relative, but despite efforts for 4-5 months they could not get the money and the child was thereafter handed back to Salim Khan and since the child recognised Salim Khan, the child was drowned in the gang nehar.
24. PW-16, Shatrughan did not support the case of the prosecution and denied that any confessional statement had been made before him by respondent no.2, Rajender Singh, despite the fact that he was crossexamined at length. The observations made by the learned trial court read as under:
25. As far as the testimony of PW-19, Kalu Ram, is concerned the trial court has rightly considered the fact that a person would only make a confession before a person in whom he could repose faith; a person, whom he could trust; to a friend, to a neighbour with whom he would have good relations.
26. In this case, Kalu Ram was only a customer of Salim Khan and they share no prior relationship, which would show that there was some element of comfort between Salim Khan and Kalu Ram and in case they were known to each other Salim Khan would also know that Kalu Ram was the cousin of Sube Singh, father of the kidnapped child, and, thus, it would be highly improbable that Salim Khan would confess before Kalu Ram.
27. Another factor is that according to the prosecution Salim Khan and Rajender confessed on the same day. Another improbable factor as to why both the respondents would confess before two different persons on one day and that too after a gap of two years.
28. The trial court has also considered some of the contractions with regard to the time when the confession was made. Thus, the submission of learned APP for the State with regard to extra-judicial confession is without any force.
29. We are also unable to accept the submission of learned APP for the State that the recoveries i.e. locket and school bag at the instance of the respondent would prove their guilt in view of the fact that neither in the FIR, Exhibit PW-1/A, which was recorded on the statement of PW-11, Sube Singh, father of the victim, it was mentioned that on the day when he was kidnapped Master Virat was wearing any locket, nor in the hue and cry notice published by the Police, Exhibit PW-22/B, reference was made to either the locket or the school bag, nor the aforesaid two articles would be kept for such a long period.
30. The law with regard to grant of leave to appeal is well-settled. The Court must interfere only in cases where the judgment is illegal perverse or unreasonable.
31. The Apex Court in the case of Ghurey Lal vs. State of U.P., reported at 2008 (10) SCC 450 has laid down the following principles before granting leave to appeal against an order of acquittal: