Jagseer Singh S/o Sukhdev Singh vs State of Rajasthan

Instant criminal appeal has been filed by the appellant Jagseer Singh against the judgment dated 29.11.2007 passed by

Addl. District and Sessions Judge (FT) No.3, Hanumangarh in Sessions Case No. 8/2007 (26/2005) (93/2006) by which the learned Judge has convicted the present appellant as under :-

Under Section 302 IPC Life Imprisonment and a fine of Rs.5,000/- and in default of payment of fine to further undergo six months simple imprisonment.

Under Section 201 IPC Three years simple imprisonment alongwith fine of Rs. 1000/- and in default of payment of fine to undergo two months simple imprisonment.

Brief facts of the case are that Kala Singh S/o Nihal Singh filed a written report before the S.H.O Police Station Goluwala in which he stated that "My younger brother Amarjeet Singh is residing separately. About three months ago, Sukhdev Singh and his wife came to our village and took my brother for labour purpose at village Sarawala. My brother went alongwith his wife Rani and daughter. About two and half months back, I went to village Sarawala and asked about my brother from Sukhdev Singh.

He informed me that your brother went for cutting wood. He further stated that "later on our relative Darshan Singh and Resham Singh went to village Sarawala where my brother was not present. We asked from Sarpanch and he informed that now a days Rani resides at village Suratgarh." It is stated that "I went to Rani at Suratgarh and enquired Amarjeet Singh. She informed that Amarjeet Singh is lodged at Hanumangarh Jail. We went to Hanumangarh Jail but could not find him. Today Sarpanch, Sarjeet Singh, Bhola Singh, Resham Singh and other persons went to Village Sarawala and we came to know that Jagseer Singh and Rani both have killed Amarjeet Singh. We also came to know that dead body was buried in the backside of the house and this fact was narrated by Jagseer Singh to Santokh Singh. We all met Santokh Singh and on asking, he informed that in the night Jagseer Singh and their parents came to me and he confessed that he alongwith Rani both killed Amarjeet Singh in the night i.e. on 05.11.2004 and dead body was also buried in the back side of the house. Thus, Jagseer and Rani both have killed my brother

Amarjeet Singh."

After filing this written report (Ex.P/2), the police registered a formal FIR 13/2005 which is marked as Ex.P/3.

The police conducted thorough investigation and filed challan against the present appellant Jagseer Singh and two other co-accused persons namely, Sukhdev Singh and Smt. Rani, before the court of Judicial Magistrate, First class, Pilibanga. The case was transferred to the court of Additional Sessions Judge (FT) No.3, Hanumangarh where charges were framed against the accused persons under Sections 302 / 34, 201 / 34, 120B IPC.

The prosecution in its support examined as many as ten witnesses and exhibited 49 documents.

The statements of accused persons under Section 313 were recorded wherein they denied the charges and claimed trial. On the defence side, statement of DW/1 Ranjeet Singh was recorded.

After conclusion of trial, the learned Addl. District and Sessions Judge (FT) No.3, Hanumangarh acquitted the accused persons Sukhdev Singh and Smt. Rani from the charges levelled against them but convicted the present appellant for the offence under Section 302 and 201 IPC vide impugned judgment dated 29.11.2007 and passed the sentences as mentioned earlier.

Learned counsel for the appellant argued that there is no plausible evidence against the present appellant to convict him for offence under Section 302 IPC. The prosecution case is based on circumstantial evidence and it a blind murder case in which the appellant has been falsely implicated. As per evidence on record, the occurrence has taken place on 05.11.2004 and the FIR has was lodged by the complainant on 14.01.2005 i.e. about two months after the occurrence. It is argued that the circumstance of extra judicial confession was disbelieved by the trial court and there is no motive on the part of accused appellant in this case. It is further argued that the weapon of offence was recovered from the co-accused Sukhdev Singh but the recovery of weapon was also disbelieved by the trial court and acquitted the co-accused Sukhdev Singh. It is argued that the theory of last seen was also disbelieved by the trial court. Further the dead body was recovered after three months of the occurrence and no DNA test was conducted by the prosecution for identification. The body was recovered in a decomposed state, therefore, it cannot be said that the dead body was that of Amarjeet Singh or of any other person.

It is argued that since the dead body was recovered in an open place which is not in exclusive possession of the present appellant, therefore, conviction against the accused appellant is not sustainable moreso, when on the same set of evidence, two other co-accused persons have already been acquitted by the trial court.

Therefore, the impugned judgment is liable to be quashed and set aside.

Per contra, learned Public Prosecutor argued that this is a case of circumstantial evidence. Although the evidence of extra judicial confession and last seen were disbelieved by the trial court but circumstance of recovery of dead body of deceased at the instance of accused appellant connects the appellant with the

crime. Therefore, the conviction and sentence recorded against the accused appellant deserves no interference and the appeal may kindly be dismissed.

We have considered the rival contention of the parties and carefully gone through the record.

Admittedly, the occurrence took place on 05.11.2004 and for the first time, written report was filed on 14.01.2005. Thus, the report has been filed two months and 9 days after the occurrence.

It is also not in dispute from the evidence on record that there was no motive to connect the accused appellant with the crime.

The prosecution came up with the case that the deceased was last seen with the present appellant and other co-accused but this theory has been disbelieved by the trial court. The circumstance against the present appellant that he made an extra judicial confession was also disbelieved by the trial court but the learned trial court convicted the present appellant only on the basis of recovery of dead body at the instance of the accused appellant.

Recovery of Dead Body

As per evidence on record, the occurrence took place on 05.11.2004 and a written report was filed by the complainant on

14.01.2005. The appellant was arrested by the police on 15.01.2005 and on his information to the police on 15.01.2005, the dead body of deceased was recovered on the same day from the back side of the house.

According to statement of PW/1 Bhola Singh, appellant Jagseer Singh informed him that dead body was hidden at the back side of house of appellant and later on Jagseer Singh recovered the dead body of the deceased. PW/2 Resham Singh also deposed that Jagseer Singh informed him that he had buried the dead body at his house which is lying at the back portion of the house and later the same was recovered at the instance of the accused appellant.

PW/3 Darshan Singh also deposed that in his presence, appellant Jagseer Singh recovered the dead body of Amarjeet Singh from his house. PW/4 Kala Singh also deposed that Jagseer Singh confessed before him that he killed Amarjeet Singh and hide his dead body in his house. In presence of Kala Singh, the dead body was recovered by the appellant Jagseer Singh. PW/5 Sarjeet Singh also deposed this fact that in pursuance of information given by the appellant, dead body was recovered from his house.

PW/6 Santokh Singh is a motbir who has been declared hostile.

PW/7 Manjeet Singh is also declared hostile. PW/10 Magan lal Jogi who is the Sub Divisional Officer deposed that in pursuance of the information given by the accused, he reached at the site and dead body was recovered by the accused appellant Jagseer Singh in his presence.

The present case is a case of circumstantial evidence and Hon'ble the Apex Court in the case of Vijay Shankar v. State of Haryana, reported in (2015) 12 SCC 644 : (AIR 2015 SC 3686) held that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be established cogently and firmly; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form the chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and he should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

The Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has enumerated the following golden principles, which reads as under :

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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 so 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 accused."

In the case of Ningappa Yallappa Hosamani & Ors. Vs. State of Karnataka & Ors., (2010) 1 SCC (Cri) 1460, it was held by the Hon'ble Apex Court that where on the basis of statement made under Section 27 of the Evidence Act, dead body of deceased was recovered in furtherance of voluntary information furnished by two accused, the natural presumption in absence of explanation was that it was these two accused persons who had murdered the deceased and buried his body. In the case of State of Maharashtra

vs. Suresh reported in (2000) 1 SCC 471, it was observed by the

Hon'ble Supreme Court as under :-

"Three possibilities may be countenanced when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities, the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.

In State of Andhra Pradesh vs. Gangula Satya Murthy, reported in 1997 Crl. J 774, the Apex Court has observed as under

:-

"Where the fact that the dead body was found on the cot inside the house of the accused, it was held to be a telling circumstance against him. It was further held that the accused owed a duty to explain as to how a dead body, which was resultant of a homicide, happened to be in his house. In the absence of any such explanation from him, the implication of the said circumstances is definitely adverse to the accused."

In the case of Munna Kumar Upadhyaya alias Munna v. State of Andhra Pradesh : AIR 2012 SC 2470) Hon'ble the Apex Court held that statement under Section 313 of Cr.P.C. is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him. If the accused gave incorrect or false answers during the course of his statement under Section 313 of Cr.P.C., the court can draw an adverse inference against him.

Hon'ble Delhi High Court in the case of Ashok Vishwakarma @ Surji Vs. State reported in 2014 IAD (Delhi) 734 while considering various judgments of Hon'ble Supreme Court has held as under :-

"Thereafter, after breaking open the floor and digging the earth upto 3/4 ft., one yellow plastic katta was taken out. One dead body was recovered lying wrapped in sheet inside the plastic katta. One iron chain and one sandal like chappal pair was found in the katta.

......

As such mere fact that the proceedings do not bear her signatures, does not cast any doubt regarding her presence at the time of proceedings. Even otherwise, clinching evidence has come on record to prove the recovery of dead body at the instance of accused persons.

.......

Another aspect is to be taken note of. All the incriminating circumstances which point to the guilt of the accused persons have been put to them, yet they could not give any explanation under Section 313 of the Cr.P.C. except choosing the mode of denial. In State of Maharashtra Vs. Suresh : (2001) SCC 471 reiterated in Jagroop Singh Vs. State of Punjab : (2013) 1 SCC (Crl.) 1136, it has been held that when the attention of the accused is drawn to such circumstances that inculpate him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the aforesaid decisions only to highlight that the accused have not given any explanation whatsoever as regards the circumstances put to them under Section 313 Cr.P.C."

Recently, the Division Bench of this Hon'ble Court in the case of Govind Singh Vs. State of Rajasthan (D.B. Criminal Jail Appeal

No. 281/2010) decided on 29.08.2016 while relying upon the judgment in the case of State of Maharashtra Vs. Suresh (Supra) and Paramasivam & Ors Vs. State of Andhra Pradesh through Inspector of Police reported in (2015) 13 SCC 300 has held as under :-

"After arrest of accused-appellant, the recoveries were made by the investigation agency at the instance of accused and he identified the place of occurrence. The reports of Forensic Science Laboratory and CDFD, Hyderabad are conclusive regarding matching of the materials and further no explanation has been tendered by the accused-appellant with regard to the incriminating material against him which provides the missing links. The prosecution has proved all the circumstances which only points towards the guilt of the accused-appellant that he is the only perpetrator of the crime and none else. For the above reasons, we see no infirmity in the impugned judgment. There is no merit in the submissions raised on behalf of the accused-appellant. Resultantly, the appeal is dismissed."

The recovery of dead body from the house of accused appellant is a clinching evidence to prove the guilt. There was no explanation given on behalf of the appellant and it is improbable that deceased Amarjeet Singh would have been murdered by anyone else and his dead body was buried inside the house. Thus, we find that it is established on record that deceased was murdered by none other than the accused-appellant. The accused appellant was living inside the house and remained there during all that period and there is no doubt that the recovery was made on his indication of the location after lodging of the first information report.

On examination of the evidence on record and considering the glaring circumstance of recovery of dead body upon the information of accused appellant Jagseer Singh, the charge against the appellant is established beyond doubt and therefore, no error has been committed by the trial court in convicting the accused appellant for offence under Section 302 and 201 IPC. We do not find any merit in this appeal and the appeal is accordingly dismissed.