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Published : September 13, 2011 | Author : tanya.das
Category : Case Laws | Total Views : 6425 | Unrated



Gagan Kanojia And Anr. Vs. State Of Punjab
2006 (12) SCALE 479

In this case two children by the name of Abhishek and Heena aged six and eight years respectively went to take private tuitions and came back by 6.30pm. On the day in question, when the children didn’t return on time, their father, Kamal Kishore went out to search for them. He, however, came to know that one scooterist wearing a black trouser and a whit shirt had taken his children on his scooter. A First Information Report was lodged by him and during the investigation the school bags and dead bodies of the children were recovered. The appellant no. 1 namely Gagan Kanojia was seen with the children sitting on his scooter by his nephew who lived in his house. He was also seen riding the scooter with the children by a taxi driver. In addition to this both the appellants went to the house of an advocate and leader of their community and made an extra judicial confession. Later they made an extra-judicial confession to the father of Appellant No.1 as well which was recorded by the Magistrate. On the basis of this the appellants were arrested. After arrest they made disclosure statements leading to recoveries of clothes and tapes by which hands and legs of the deceased children were said to have been tied and also the letter received by the father of the children demanding ransom was in the handwriting of the appellant no. 2. Empty bottles and glasses were also found near the place where the bodies were with the fingerprints of the accused.

Hereinafter the appellants were prosecuted under Sections 364/34, 302/34 and 201/34 of the Indian Penal Code for kidnapping and murdering the two children and were sentenced to death by the trial court. The Trial Court made reference to the High Court for confirming this death sentence and at the same time the appellants also preferred an appeal before the High Court. The High Court in this case, upheld the judgment and conviction given by the Trial Court, however, it opined that the case cannot be said to be a rarest of rare one meriting award of death penalty and awarded rigorous imprisonment for life instead. The appellants further appealed in the Supreme Court and the complainants as well, have preferred an appeal to the Supreme Court for enhancement of the sentence awarded by the High Court. The matter now rests with the Supreme Court.

The two main issues in question are:
· Whether the appellant accused were guilty of the offences for which they were prosecuted and whether their subsequent conviction in this regard by the Trial Court and High Court was justified?
· Whether the quantum of punishment awarded by the High Court setting aside the Trial Court’s decision to impose death penalty was justified?

It was submitted by the counsel on behalf of the appellants that

The circumstantial evidence given by the nephew of the appellant who was a child witness should not be admissible as it was given after a span of 20 days. Also he had identified the accused at the instance of someone else and his statement was on the basis of a letter.

It was further said that the delay in recording the circumstantial evidence of the taxi driver makes it unreliable.

The extra judicial confession made to the advocate and leader of the community shouldn’t be believed as he was also called by the police to be a witness for the recovery and this could indicate bias.

It was also said that the extra judicial confession made by the appellants to the father of the appellant no.1 was a weak peace of evidence without any material particulars corroborating the same and hence the High Court committed an error by relying upon the same and arresting the appellants.

Recovery of the cello tape and the piece of cloth with which the hand of the children were tied was on the basis of the information given by the appellant himself to the police. This could be done out of compulsion and hence the investigation was tainted and fabricated.

On the other hand the counsel on behalf of the respondents i.e. the State of Punjab contended that

The evidence of the nephew of the appellant has to be judged keeping in mind that he lived in the same house as the appellant and as such he thought he was obliging his family members by making a statement in their favor which undoubtedly points towards the high probability that he was speaking the truth and nothing else.

The letter which the appellants contended formed the basis of the statement made by the nephew was produced by the appellants after two years and hence the validity of such letter is not something that could be trusted easily.

The circumstantial evidence given by the taxi driver who had seen the appellant ride the scooter with the children had no reason to be disbelieved as he was an independent witness.

Further the circumstances where the tape and clothes were recovered and the shirt and trouser of the accused point towards the guilt of the accused.

Finger prints of the accused were also found on the bottles and glasses which were recovered near the place from where the dead bodies were recovered which further corroborated the prosecution case.

The circumstantial evidence of a handwriting expert stating that the letter demanding ransom was in the handwriting of Appellant No. 2 is a pointer towards the involvement of the appellants in this matter as well.

Further the extra judicial confession made to the advocate and leader of the community by the appellants could not be disbelieved as they thought that he, being a lawyer could save them from the criminal case.

The hearsay evidence of the tutor on the basis of what she heard from another student about the two children going away with someone they referred to as “Chachu” was to be admitted as hearsay evidence as it corroborated the case

The findings of the judge are on the basis of the arguments presented by the attorneys.

With regard to the first issue which is the prime and most important issue of the case the judges made the following findings.

The nephew of the appellant deposited that he was present when the children were taken by the appellant and he remembered seeing the distinct reluctance of one of the children to go with him. The allegations made by the appellants that the statement of the nephew were made on the basis of a letter and at the instance of someone else was negated by the fact that the Trial Court had found him capable of giving evidence without undue influence and also there were discrepancies between the letter and what he deposited, so it was untrue that his statements were made on the basis of the letter. As such the court found his circumstantial evidence to be just and be one that inspires confidence.

The circumstantial evidence given by the taxi driver was no doubt acceptable by the court as he gave a very vivid and detailed description of the place from where the children came and boarded the scooter. According to him the children were standing about 5-7 feet away from him on the street from where they boarded the scooter. He was a neutral party in the matter and the court saw no grounds for disbelieving his evidence.

As far as the hearsay evidence of the tutor is concerned the court found that such statements made by the other student about the conduct of the victims was not a part of the same transaction and hence such hearsay evidence wasn’t admissible. Further the student making such statements wasn’t examined so court found no reason to place reliance on the same.

The contention raised by the appellants that the extra judicial confession made to the advocate and the leader of the community was not reliable was struck down by the court. The basis on which the court did so was that the advocate gave witness in sufficient details. Also even after intense cross examination by the appellants, his stand in the examination in chief remained unchanged and unshattered. Although he was a witness to the recovery, he only acted as a witness as it was required by the police and had no personal bias involved. The court found his statement to be true and believed him. However the court also found that the extra judicial confession made to the father of the appellant was not admissible in evidence as although he was sure about the involvement of his son there was a possibility that at one point of time he would think about not deposing against him.

The recovery of the empty bottles and glasses at a place near where the bodies were found were proved by the sub inspector. Further the fingerprint lifted off these bottles that were sent to the Fingerprint bureau were said to match with the thumb impressions taken from the appellants. Hence on the basis of the expert evidence, the court in this regard completely and wholly accepted this piece of circumstantial evidence.

Similarly the analysis of the handwriting expert which said that the handwriting in the letter of ransom written to the father of the deceased children matched the handwriting specimen taken from the appellant no. 2 was also accepted by the court as a piece of evidence against the appellants.

Another important piece of circumstantial evidence was the recovery of a camera from the bed-box of Appellant No. 1 and also the remaining part of the dirty white cloth with which the arms of both the children were tied had been kept concealed therein. A cello tape was also recovered which was used by the accused for pasting on the mouth and nose of both the victims and for tying the plastic envelopes which were put on the faces of both the children. Since this recovery was on the basis of information given by the appellant to the police it was urged by the appellants that there was compulsion and hence such investigation was fabricated and grossly wrong. The court however found that this was admissible as a piece of circumstantial evidence as it is corroborative of the extra judicial statements made by the appellants.

The Honorable Supreme Court found that the prosecution case is based on circumstantial evidence. Although it is well-settled that in a case based on a circumstantial evidence the prosecution must prove that within all human probabilities, the act must have been done by the accused but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, untrustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively. Keeping this principle in mind the Court held that it was satisfied with the circumstantial evidence put forth by the prosecution as it completed all the links in the chain and it pointed out to only one conclusion i.e. the guilt of the appellants. Hence the appellants are found guilty of the offences for which they were prosecuted and the judgments of conviction delivered by the Trial Court and High Court against them were correct and in tune with the spirit of justice. Hence the appeal preferred by the appellants was declined.

With regard to the second issue at hand the court found and held that the High Court had made no error in opining that the case at hand was not one of the rarest of rare cases. It wasn’t a case where the court would have to exercise its extra ordinary jurisdiction and convert the penalty of a rigorous imprisonment for life to that of a death sentence. As a result the appeal for enhancement of punishment made by the complainant was also declined by the Supreme Court.

The ratio decidendi of the case was that the prosecution case is required to be covered by leading cogent, believable and credible evidence.

The case dealt with above is a classic example of how circumstantial evidence plays a very crucial role in determining the outcome of the case. As we know circumstantial evidence is the deposition or testimony by a person as a witness with regard to certain circumstances from which certain inferences can be drawn about the fact in issue of the case. In the present case the fact in issue is whether the appellants have murdered the two children or not. There is no direct evidence in this case either in the form of an eye witness or anything else which proves the guilt of the accused in a straightforward manner. Hence reliance has been placed on circumstantial evidence. The purpose of circumstantial evidence here is to create a link between all the circumstances that have occurred so that the fact of murder that is desired to be proved becomes a natural consequence of the same or is deemed to be a part of the same transaction in which the circumstances had taken place. So if we see the chain of circumstances that took place in this case as well it will lead to the proving of the fact that the appellants indeed did murder the two children.

The fact that after their tuitions got over and till the times their body was found, the only person with whom they were seen with, as per the statements of the witnesses, were the appellants. This creates an inference that all these events have a link amongst themselves and hence the appellants definitely had a role to play in the death of the two children.

The immediate conduct of any accused after the time of commission of crime is again a very important link to the fact in issue. In this case after causing the death of the children, both the appellants felt a sense of guilt and overbearing that’s why they immediately went and confessed to the father of the appellant. At the same time their desire to safeguard themselves was also high hence justifying the reason as to why they had gone to the advocate to confess their crime in hope that he might be able to rescue them. The act of murder and such confessions made to these relevant persons cannot be seen in isolation. They are connected somewhere and it is for the courts to fill in the blanks to arrive at a conclusion.

Circumstantial evidence also relates to certain objects or things or certain places which tell the tale of the crime themselves. In this case the fact that cloth and the tape with which the children had been tied was found at the house of the appellant helps in asserting that these objects by themselves is establishing a bridge between the appellants and the crime that was committed with the help of these objects. Further the fact that the bottles and glasses stained with fingerprints of the accused was found at the place where the bodies of the children were recovered helps in imagining that the appellants where present at the place relevant to the crime.

Scientific evidence may also a form a part of the circumstantial evidence. In this case the report of the handwriting expert which proved that the handwriting in the letter of ransom and that of appellant no.2 was same is also circumstantial as the court has to draw an inference or establish a connection between the evidence that the appellant handled some object intricately tied to the crime and the commission of the crime itself.

With regard to the hearsay evidence which was not acceptable in this case, it was rightly held so because if a person was in the situation himself or has seen/heard the situation himself from which a logical inference of the crime can be drawn then its admissible because it helps establishing those missing links which is required to be filled for a circumstantial evidence based case to succeed. However if the person is merely narrating the situation some other person has experienced like in this case where the tutor stated what was seen by her student, then it becomes too remote so as to create an association with the rest of the circumstances which lead to the inference of crime.

However not all links need to appear on the surface of evidence. Some of them may be inferred only from the proven facts. In this case with regard to the evidence of the taxi driver it wasn’t proved that he had no prejudice against the appellant. However it could be logically inferred from the other facts already proved that he was merely a neutral party and was speaking the truth. Also the fact that the letter was in the handwriting of the appellant no.2, there need not be any separate link to prove the involvement of the appellant no.1 in the demand of ransom. It is impliedly inferred from other facts that a link does exist between both the appellants and with the crime.

The basic rule of criminal jurisprudence is that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. Incase the court raises a presumption of the innocence of the accused and there are two views, one that points towards the guilt of the accused and the other towards his innocence, then benefit of doubt should be given to the accused and the view indicating his innocence should be adopted. However it would also be wrong to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be and nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection only if the doubt is reasonable and not otherwise. In this case this principle has been applied well and the prosecution’s case has not been struck down due to feeble and arbitrary defenses raised by the appellants in the form of slight delay or personal bias to create a presumption of innocence on part of the appellants.

There are certain rules which have to be considered whenever circumstantial evidence is raised. Firstly it says that the facts alleged must undoubtedly be connected to the factum probandum i.e. fact in issue. In this case all such circumstances so raised are closely and harmoniously connected with the murder in issue and none are isolated and hypothetical. Secondly the burden of proof is always on the party which asserts the existence of the fact. Here as well the case has been established by the counsel on behalf of the prosecution. Thirdly, in all cases the best evidence must be adduced which the nature of the case demands. In the above case there was no direct evidence and hence circumstantial evidence was resorted to. Had there been direct evidence which established the fact in issue, circumstantial evidence wouldn’t have a role to play except maybe for the purposes of corroboration. Fourthly, the facts in order to hold the accused liable must be incompatible with the innocence of the accused and should be incapable of any other explanation except that of his guilt. Here too, the facts blindly point towards the guilt of the accused leaving no scope for his innocence. Hence we see that all the requirements of circumstantial evidence to be considered have been correctly fulfilled.

The entire trial and process of the case and more importantly the decision of the Honorable Supreme Court has been a great and worthy one and I am completely unanimous with the decision rendered by them.

Hence after a detailed and careful perusal of the case we can say that the Honorable Supreme Court after dealing with the issues with exhaustive discussions, deliberations, arguments and consensus has given a decision that has great precedent value and explains and elaborates the law of evidence, specially circumstantial evidence, in a substantial manner. The judgment delivered by it is not only reasonable and fair, but keeps up with the present requirement of law and also upholds the principles of justice, equity and good conscience.

Authors contact info - articles The  author can be reached at: tanya.das@legalserviceindia.com

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Posted by govind on March 13, 2012
I remeber reading a news item(supreme court judgment) a couple of months
ago on the laws applicable about the promised roles and responsibilites
post promotion and being asked to discharge the same job or role as
carried out by employees without any change in roles and
responsibilities. Could you please send me details of the case and
thanks and regards,

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