2010 Supreme(SC) 101

2010 (2) Supreme 47
SUPREME COURT OF INDIA
Harjit Singh Bedi and J.M. Panchal, JJ.
Vikram Singh & Ors. — Appellants
versus
State of Punjab — Respondent
Criminal Appeal Nos. 1396-97 of 2008
Decided on : 25-01-2010

IMPORTANT POINTS
1. Even the post incident conduct of an accused can be taken into account to determine as to whether the criminal act which had been committed was pursuant to a criminal conspiracy.
2. Chain of circumstances against an accused in a case of circumstantial evidence must be directed only towards his guilt and admit of no other hypothesis, whereas in the case of the evidence of an eye witness a chain of circumstances is not required and one good eye witness is sufficient to record a conviction.
3. In determining the culpability of an accused and the final decision as to the nature of sentence, a balance sheet of the aggravating and mitigating circumstances vis-‘-vis the accused has to be drawn up and in doing so the mitigating circumstances has to be given full weight so that all factors are considered before the “option is exercised”.

Headnote:Indian Penal Code,1860-Sections 302, 364A, 120B and 201-Prosecution of appellants three in number for kidnapping deceased a boy aged 16 years son of PW 27from outside his school for ransom and for causing his death- Sessions Judge, on an analysis of evidence, all circumstantial in nature, observed that the chain of circumstances was complete and that there was no room for doubt with regard to the guilt of appellants and accordingly identifying the case as being in category of the “rarest of the rare”, convicted appellants for offences punishable under sections 302, 364A, 201 and 120-B IPC and sentenced them to death- High Court by its judgment accepted Murder Reference and confirmed the death sentence-Appeal thereagainst- Circumstances essential for conviction on the basis of circumstantial evidence were complete inasmuch that there was evidence to show that the deceased had been kidnapped for ransom from outside the school - While deceased was being whisked away, had been seen by several trustworthy witnesses- Purchase of chloroform and fortwin injections had been proved by independent evidence -Appellants had been seen near village Daulatpur, from where the dead body had been recovered at their instance, by at least two witnesses whose presence too had been proved beyond doubt -Motive was kidnapping for ransom as the impression was that the father of the deceased,being a goldsmith, was reputedly a rich man andtherefore in a position to pay up to save his son- Prosecution story that appellants A1 and A2 had been seen by PW 13 with deceased and a short while later PW 19 had heard the noise of “bachao bachao” and on looking in that direction had seen a silver grey coloured car being driven away from the DAV School at a very high speed with one human foot protruding outside the car window- Prosecution case that factum of over dose of Chloroform and pentazocine administered to the deceased was clear from the fact that recoveries showed that almost the entire bottle of Chloroform (500 ml.) and all five Fortwin injections 5 ml. had been used by the kidnappers and that this lethal combination of Chloroform and an over dose of pentazocine was the cause of death-Conviction of appellants called for no interference. (Paras 5, 8 to 10)

        Indian Penal Code,1860-Sections 302, 364A, 120B and 201-Conviction of appellants for offence of kidnapping and murder-Appeal against conviction on plea that all the witnesses were only chance witnesses-PW13 had given a cogent explanation as to the circumstances under which he had seen deceased being kidnapped and taken away in the Alto Car- He deposed that he had come out of his house at about 8.30 a.m., which was admittedly on the way leading to the DAV School, to see off children of a relative who had to take a Rikshaw to school and it was at that crucial moment that he had seen deceased being innocently taken away by appellants in the grey Alto Car Ex.P4 which was also identified by him-He also stated that on his return from Chintpurni he had tried to contact deceased’s father but his telephone remained continuously engaged- Criticism of PW 19 was equally misplaced-Admittedly, this witness was the owner of a bakery shop at Shimla Pahari and it was while he was outside the shop that he had heard the screams of “Bachao Bachao” and on looking in that direction had seen a car being driven away at a high speed and a human foot protruding out of the car window –PW19 was not in any way connected with complainant, and they were not even known to each other-Hence held that presence of PW 13 and and PW 19 was natural at the places they professed to be in and they could not, therefore, be dubbed as chance witnesses. (Para 7)

        Indian Penal Code,1860-Sections 302, 364A, 120B and 201-Conviction of appellants for offence of kidnapping and murder-Appeal against conviction on plea that recoveries made on the disclosure statements of the appellants were not admissible under Section 27 of the Evidence Act as the appellants were not under arrest at that point of time-A bare reading of said provision reveals that a “person must be accused of any offence” and that he must be “in the custody of a police officer” and it is not essential that such an accused must be under formal arrest- Word “arrest” used in Section 46 of Crpc.relates to a formal arrest whereas Section 27 of the Evidence Act talks about custody of a person accused of an offence- In the instant case appellants were undoubtedly put under formal arrest on the 15.02. 2005 whereas recoveries had been made prior to that date but admittedly, also, they were in police custody and accused in an offence at the time of their apprehension on the 14.02. 2005. –Hence submission that this Section would be operable only after formal arrest under Section 46(1) of Code, held unacceptable. (Paras 11, 12)

        Indian Penal Code,1860-Sections 302, 364A, 120B and 201-Conviction of appellants for offence of kidnapping and murder-Appeal against conviction on plea that recovery witnesses could not be believed as they were interested parties and it appeared that the recoveries had, in fact, been manipulated- It is indeed true that PW M admitted that complainant was his nephew and deceased was his grandson- Nothing unusual found in M’s statement-Independent witnesses are not forthcoming these days and the prosecution has per force to rely on witnesses who are relatives or associates of the complainant- This in a way also ensures that the witnesses would not leave out the true culprits- Statement of PW M that as a consequence of the disclosure statement made by three appellants, Alto car had been recovered from (PW), the black Chevrolet car from the area of Katchha Tobba vide Memo Exhibit-PJJJ and on the search of the car, various other items such as the photographs and purse of the deceased,had been taken into possession under seizure Memo Ex.PLL. - A silver ring belonging to the deceased had been recovered at the instance of A1and five empty ampules of Fortwin injections, a syringe, a plastic bag with hyperdemic needles and a roll of medical tape at the instance of A2 and were taken into possession - Submission that evidence of M and Sub-Inspector J ought not be believed as they were interested in the successful outcome of prosecution,held unacceptable as no other material adverse circumstance was brought on record. (Paras 14 to 16)

        Death Sentence- Award of to appellants for offence of kidnapping and murder-Appeals thereagainst –Deceased was only 16 years of age, and had been picked up by A1 who was known to him but had soon realized predicament that he faced and had shouted for help-His terror could further be visualized when he would have heard the threatening calls to his father and seen the preparations to do away with him, which included taping of his mouth and the administration of an overdose of dangerous drugs- The horror, distress and the devastation felt in the family on the loss of an only son, could also be imagined-Award of death sentence to A1 and A2 held justified – However keeping in view the overall picture and the fact that at the time when deceased had been kidnapped from outside DAV School, A3had not been present and that she may have got embroiled in the conspiracy with her husband and A1 on account of having come under their pressure, her death sentence was converted into one of life. (Paras 22 to 30)

       Facts of the Case :

        Appellants three in number were prosecuted herein in the instant case for kidnapping deceased a boy aged 16 years son of PW 27from outside his school for ransom and for causing his death. Sessions Judge, on an analysis of evidence, all circumstantial in nature, observed that the chain of circumstances was complete and that there was no room for doubt with regard to the guilt of appellants and accordingly identifying the case as being in category of the “rarest of the rare”, convicted appellants for offences punishable under sections 302, 364A, 201 and 120-B IPC and sentenced them to death. High Court by its judgment accepted Murder Reference and confirmed the death sentence.

        2. Present Appeals have been filed against said order of High Court.

       Findings of the Court :

        Circumstances essential for conviction on the basis of circumstantial evidence were complete inasmuch that there was evidence to show that the deceased had been kidnapped for ransom from outside the school . While deceased was being whisked away, had been seen by several trustworthy witnesses. Purchase of chloroform and fortwin injections had been proved by independent evidence .Appellants had been seen near village Daulatpur, from where the dead body had been recovered at their instance, by at least two witnesses whose presence too had been proved beyond doubt .Motive was kidnapping for ransom as the impression was that the father of the deceased,being a goldsmith, was reputedly a rich man andtherefore in a position to pay up to save his son. As per Prosecution story appellants A1 and A2 had been seen by PW 13 with deceased and a short while later PW 19 had heard the noise of “bachao bachao” and on looking in that direction had seen a silver grey coloured car being driven away from the DAV School at a very high speed with one human foot protruding outside the car window. Prosecution case that factum of over dose of Chloroform and pentazocine administered to the deceased was clear from the fact that recoveries showed that almost the entire bottle of Chloroform (500 ml.) and all five Fortwin injections 5 ml. had been used by the kidnappers and that this lethal combination of Chloroform and an over dose of pentazocine was the cause of death.Hence held that conviction of appellants called for no interference.

       Result : Ordered accordingly.