Shiv Narayan vs State (Nct Of Delhi)
2001 Latest Caselaw 674 Del

ORDER

Usha Mehra, J.

1. Shiv Narayan, appellant in Crl. A. No. 330/97 and Jal Singh, appellant in Crl. A. No. 203/97 have assailed their order of eviction of sentence whereby they have been sentenced to undergo life imprisonment and a fine of Rs. 5,000/- for an offence punishable under Section 302/34 IPC. In default of payment of fine further rigorous imprisonment for one year. They have also been sentenced to rigorous imprisonment for three years and fine of Rs. 2000/- for an offence punishable under Section 201/34 IPC. In default of payment of fine further rigorous imprisonment for six months. Of course benefit of Section 428 of the Code of Criminal Procedure has been granted.

2. Since both the appeals have arisen from a common judgment, therefore, these appeals are taken up together and disposed by this order.

3. Appellants have challenged the order of conviction dated 22nd April, 1997 and of sentence dated 25th April, 1997, inter alia, on the grounds that the circumstantial evidence created by the prosecution was without basis. It never stood substantiated on record. So much so the learned Trial Court in order to overcome the material discrepancies coined his own reasoning.

4. Prosecution relied on following circumstances namely (1) Motive (2) Last Seen (3) Recovery of articles namely blood stained shirt, pant and weapon of offence i.e. knife on the disclosure and pointing out of the accused persons.

5. On the ocular statements of PW-4 and PW-5 the prosecution case rests. On the question of motive and last seen, Mr. Kalia contended that prosecution has relied heavily on the testimony of PW-5 Shri Sanjeev Kumar. Accordingly to counsel for the appellants no reliance can be placed on the testimony of Sanjeev Kumar PW-5. His testimony stood contradicted from the statement of Sat Pal Aggarwal PW-4. Neither motive nor last seen circumstance can be inferred from their testimonies. Moreover, witnesses examined against the accused persons were interested witnesses. They wanted to save the employer PW-4 on whom the needle of suspicion was cast by the wife, brother and friend of the deceased. The learned Addl. Sessions Judge ignored the version given by the deceased's wife PW-1, his brother PW-9 and his friend PW-10. They suspected the employer (PW-4) to the killer of the deceased. The alleged recovery of weapon of offence from an open space lying on the ground without being hidden anywhere was no recovery in the eye of law. Moreover, it had not been witnessed by any independent witness. Similarly, recovery of shirt and pant on the alleged disclosure of accused Jal Singh was not according to Law. There were material contradictions on the point of recovery. It was not witnessed by any independent witness.

6. In order to appreciate the challenge raised in these appeals, let us have quick glance to the facts of the case. Prosecution story had been unfolded by the testimony of Sanjeev Kumar PW-5 and of Sat Pal Aggarwal PW-4. According to them deceased Vijay Singh and accused Shiv Narayan were employed in the factory of Shri Sat Pal Aggarwal PW-4. The said factory was being run under the name and style of M/s Mico Cable Company. Deceased Vijay Singh, as per the version of Sanjeev Kumar PW-5, was the confident of his employer Shri Sat Pal Aggarwal. In the absence of the employer the loading & unloading of the material used to be got done by deceased Vijay Singh. He used to give directions to accused Shiv Narayan to load and unload the goods for the purpose of transporting in and out of the factory premises. Accused Shiv Narayan bore a grudge against deceased on this count. He was envious of the deceased. In association with the co-accused Jal Singh they planned and decided to do away with the deceased. On 1st January, 1996 accused Shiv Narayan and the deceased worked in the factory till 6.00 P.M. After office hours accused Shiv Narayan invited the deceased and took him to his premises. Thereafter the deceased had not been seen alive by anyone. On 4th January, 1996 at about 9.40 A.M. dead body of deceased Vijay Singh was found lying near "ganda nala" of Nakul Gali, Saath foot road, Vishwas Nagar, Shahdara. DD No. 4A dated 4th January, 1996 was recorded pursuance to which Constable Vitthal (PW-6), Inspector Baljeet Singh (PW-7) and ASI Subedar Singh (PW-21) proceeded to "ganda nala" of Nakul Gali & found a dead body. Dead man was wearing Kurta Pajama, Banian and Underwear. By the side of dead body was lying a gunny bag with monogram of Mamta Bhog Atta as well as a scarf. There were cut marks on the left side of the neck of the deceased beside cut marks near the left ear and injury mark on the left lip as well as on the nose, on the right cheek, both knees and on index finger and middle finger. Nobody knew about him. Dead Body was taken around the area but nobody identified him. Announcement was made in the area to identify the dead body. Pursuance to that announcement on 4.1.1996 evening, the dead body was identified by PW-4 Sat Pal Aggarwal and his employee Sanjeev Kumar (PW-5). Appellants were arrested on 23rd January, 1996 and booked under Section 302 read with Section 34 IPC and under Section 201/34 IPC.

7. Prosecution examined nearly 30 witnesses. For the purpose of determining the point raised in these appeals, the testimony of Smt. Kamla PW-1, wife of the deceased, Ashok Kumar Aggarwal PW-2, Sat Pal Aggarwal PW-4, Sanjeev Kumar PW-5, Samar Pal Singh Yadav PW-9 i.e. younger brother of the deceased and Nardev Singh Yadav PW-10 friend of the deceased, beside the testimonies of certain police official are relevant.

8. Mr. Mukesh Kalia, counsel for appellant Shiv Narayan contended that prosecution instead of arresting the real culprit i.e. the employer planted the case on these appellants. According to him prosecution miserably failed to establish any motive of the appellants to murder the deceased. To support his contention he referred to the testimony of Smt. Kamla PW-1 wife of the deceased. Her statement remained unrebutted on record. She said that her husband used to complain against his employer Sat Pal PW-4. When he last visited his home, the deceased told her that he had altercation with his employer. That his employer Sat Pal Aggarwal PW-4 slapped the deceased and also threatened him. That due to the behavior of his employer, the deceased wanted to leave Delhi. His employer threatened him that he would cut him into pieces. She was informed about her husband's death after 5 days. From perusal of her evidence, Mr. Kalia contended, it is evident that the deceased never had any enmity or dispute with the accused Shiv Narayan, rather needle of suspicion had been raised by Smt. Kamla (PW-1) towards the employer (PW-4). The prosecution ignored her version in order to favor the employer. Deceased had expressed to his wife that he was being threatened by his employer. This part of her testimony is corroborated by the testimony of Samar Pal Singh (PW-9) brother of the deceased who testified that deceased was in sad mood because of the behavior of his employer (PW-4). His employer owed the deceased a sum of Rs. 32000/-. PW9 also suspected Satpal (PW-4) having hand in the murder of Vijay Singh deceased, couple with the statement of Samar Pal PW-9 is the testimony of Nardev Singh Yadav PW-10 whom the deceased informed that he had differences with his employer. To none of his relations and friend the deceased at any point of time indicated that he had any grievances of conflict with his co-employee Shiv Narayan. So much so even Sat Pal Aggarwal (PW-4) has nowhere stated that appellant Shiv Narayan nursed any grudge against the deceased nor according to Sat Pal (PW-4) there was any conflict or differences between deceased and accused Shiv Narayan. Hence, the alleged motive stood falsified by the testimony of PW1, PW4, PW9 & PW10. As regard the version given by Sanjeev Kumar (PW-5) that there was altercation between deceased & accused Shiv Narayan, this stood falsified by the testimony of his employer Shri Sat Pal Aggarwal (PW-4). Sat Pal Aggarwal PW-4 has nowhere said that on 1st January, 1996 my altercation took place between the accused and the deceased. Even otherwise Sanjeev Kumar's statement does not inspire confidence. He tried to hide the truth. His statement cannot be relied in view of the statement of PW-9 which clearly show that PW-5 was not speaking the truth. Hence no reliance can be placed on his version.

9. It is well settled principle of law that in a case based on circumstantial evidence motive assumes considerable importance. However, failure to establish motive would not effect prosecution case if there is positive evidence and establish the charge against the accused. If other circumstances are such as to complete the chain connecting accused with crime then lack or absence of motive is not fatal. However we can't loose sight of the fact that in the absence of motive the prosecution story may loose its sheen. To prove motive prosecution relied heavily on the testimony of Sat Pal Aggarwal PW-4 and Sanjeev Kumar PW-5. But unfortunately for prosecution it failed to establish the alleged motive. Shri Sat Pal Aggarwal, the employer of the deceased Vijay Singh and of the accused Shiv Narayan, appearing as PW-4 nowhere supported the version of the prosecution. He did not say that there was any conflict between the deceased and accused Shiv Narayan. Nor he said that accused Shiv Narayan ever felt envious or jealous of the deceased. He never authorised the deceased to supervise the work of loading and unloading. The only authority which he gave to the deceased was to open or lock the factory premises in the absence, because deceased was residing in a room in the factory premises itself. Therefore, duplicate key was provided to the deceased. He did not say that any authority was given to Vijay Singh to supervise the work of his co-employees. Therefore, the question of accused Shiv Narayan having any grudge against the deceased could not arise. It appears to be a figment of imagination of Sanjeev Kumar PW-5 that deceased had been taking work from his co-employees in the absence of the employer PW-4. According to PW-4 Sat Pal, the deceased was habitual in absenting from factory without permission. In the words of PW-4:-

"I had not informed the police about the missing state of Vijay Singh since he was in the habit of remaining away from the factory 2 or 3 days."

10. This part of the PW-4's statement show that Sat Pal Aggarwal PW-4 could not have any confidence on deceased Vijay Singh for supervising the work. Mere giving of duplicate key to deceased does not mean that employer had authorised the deceased to use and exercise the power of employer. Therefore, the version given by Sanjeev Kumar PW-5 that accused Shiv Narayan was having grudge against the deceased because of deceased taking work from him stood belied from the statement of Sat Pal Aggarwal, the employer himself. Sanjeev Kumar PW-5 it appears has tried to project his version according to his motion in order to suit the case of the prosecution. He talked about certain facts which even his employer had not supported. For example, PW-4 said:-

"Whenever I used to leave early , Vijay Singh was authorised to close my factory."

11. This shows that authority given to deceased was only to close the factory and nothing more. Conversely Sanjeev Kumar PW-5 said:-

"In the absence of Satpal the work of the factory being looked after by Vijay Singh. the factory being looked after by Vijay Singh. He used to bring material from the factory and was looking after loading and unloading of the material."

12. This is what has not been established by the prosecution rather stood disproved by the testimony of the employer Sat Pal, PW-4. Similarly, the employer PW-4 nowhere stated that there was any altercation between deceased and Shiv Narayan either on 1st January, 1996 or on earlier occasion. Once the employer had not authorised the deceased to lookafter the factory then the question of deceased directing the accused Shiv Narayan to do loading and unloading did not arise nor there could be any altercation or grudge on that count. For these reasons motive to kill on the part of accused persons cannot be inferred. Testimony of Sanjeev Kumar, PW-5 does not inspire confidence because it is in complete contrast to the testimony of his employer Sat Pal Aggarwal PW-4. Simply because accused Shiv Narayan was asked by the deceased to load and unload the consignment by itself is so trifle a matter and so insufficient an event to establish motive on the part of the accused to commit the offence of murder.

13. Prosecution has not based its case on conspiracy. Therefore, if we presume that Shiv Narayan nursed a grudge the question arises why would Jal Singh committed the murder. No evidence has been brought on record to show that Jal Singh also had any ill will or enmity towards the deceased. No common animus has been alleged nor proved nor previous enmity established nor alleged. Apparently there could not have been any motive of the accused Shiv Narayan to kill the deceased Vijay Singh, rather the testimony of Smt. Kamla PW-1, Samar Pal Singh Yadav PW-9 and Nardev Singh PW-10 indicate that the deceased had no grudge or ill will towards the accused. Even otherwise alleged altercation is a weak motive not supported by the employer himself. Hence it can safely be concluded that this circumstance has not been proved beyond reasonable doubt.

14. Now turning to the question of last seen. Mere fact that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. Invariably in case a person last seen with the victim, unless otherwise there are circumstances prima facie exonerating him, would be the prime suspect but in the ultimate judicial adjudication suspicion, howsoever strong cannot be allowed to take the place of proof. It is an admitted proposition of law that in a case of circumstantial evidence, the cumulative effect of all the circumstances proved must be such as to negative the innocence of the accused and to bring home the charge beyond reasonable doubt. It was prosecution's case that the deceased Vijay Singh and the appellant Shiv Narayan were the last to leave the factory premises on 1st January, 1996, and thereafter, accused Shiv Narayan took the deceased to his room, where Vijay Singh was killed by the accused persons. To prove last seen circumstance prosecution again relied on the testimony of Sanjeev Kumar PW-5. We are in agreement with the contention of Mr. Mukesh Kalia that the testimony of Sanjeev Kumar PW-5 on this point is weak. It stood belied from the description of event disclosed by Sat Pal Aggarwal PW-4. There are material contradictions between the testimony of Sat Pal Aggarwal (PW-4), the employer and that of Sanjeev Kumar (PW-5). According to Sat Pal Aggarwal PW-4 at the relevant time he had four employees working in his factory namely, Vijay Singh the deceased, accused Shiv Narayan, Sanjeev Kumar PW-5 and Vinod. They were all present in the factory till 6 P.M. on 1st January 1996. On 1st January, 1996 these employees worked from 10.00 A.M. to 6.00 P.M. When Sat Pal Aggarwal PW-4 closed his factory on 1st January 1996 at 6.00 P.M. all the four employees were present. It, therefore, cannot be said that the deceased and the accused Shiv Narayan were the only employees left. In the words of Sat Pal Aggarwal (PW-4),

"there duties came to an end when the factory was closed at the evening hours".

15. Not only Sat Pal admitted the presence of all his employees when he closed the factory, he, however, nowhere stated that Vijay Singh and Shiv Narayan went together after closing of the factory.

16. He denied having stated to the police that on 1st January, 1996 Vijay Singh deceased had closed his factory at 6.00 P.M. Vijay Singh was only authorised to close the factory. When Sat Pal Aggarwal (PW-4) was not available. But, on 1st January, 1996 Sat Pal Aggarwal (PW-4) was present in the factory till 6.00 P.M. hence, question of Vijay Singh closing the factory did not arise. Sat Pal Aggarwal (PW-4) has also not mentioned that accused Shiv Narayan took the deceased to him room.

17. Contrary to what has been stated by the employer Sat Pal Aggarwal (PW-4), his employee Sanjeev Kumar (PW-5) gave a totally different version. According to Sanjeev Kumar, his employer Sat Pal Aggarwal (PW-4) left the factory at about 5.00 P.M. or 5.30 P.M. He along with his co-employee Vinod left the factory at about 5.30 P.M. or 6.00 P.M. leaving behind the accused Shiv Narayan and the deceased. According to him they left the factory early because light went off at 5.00 P.M. None of these facts have been corroborated by the employer. Rather the employer Sat Pal Aggarwal (PW-4) , categorically stated that all the four employees were present in the factory till 6.00 P.M. In this view of the matter it can safely be said that the version given by Sanjeev Kumar (PW-5) is neither reliable nor plausible. PW-5, Sanjeev Kumar tried to twist the facts in order to raise suspicion on the accused Shiv Narayan. Testimony of PW-5 Sanjeev Kumar, therefore, cannot be pressed into service in bringing home the charge against the appellants. Thus, from the facts which have come on record it is found that last seen circumstance is a weak circumstance of the link in the chain.

18. In his statement under Section 313 Cr.P.C. it was not suggested to the accused Shiv Narayan that the factory was closed by the deceased because light went off. Nor it was suggested that Sanjeev Kumar PW-5 and Vinod had left at 5.30 PM or 6.00 PM or that the owner of the factory Sat Pal Aggarwal, PW-4 had already left the factory at 5.00 or 5.30 PM and that the accused and the deceased were the only person left behind in the factory. From this it becomes apparent that even the prosecution has not bought the story of Sanjeev Kumar PW-5 that is why these events were not put to the accused while his statement under Section 313 Cr.P.C. was recorded. Since these circumstances as narrated by Sanjeev Kumar PW-5 were not put to the accused while recording his statement under Section 313 Cr.P.C. therefore, he had no chance to explain the same. In the absence of there being evidence that the accused Shiv Narayan took the deceased to his room mere fact that accused worked with the deceased till 6.00 PM by itself is not sufficient to conclude that he was the last person seen with the deceased. It will not be out of place to mention that there are other material contradictions also in the testimony of the prosecution witnesses. According to Sanjeev Kumar PW-5, accused Shiv Narayan worked in the factory till 6th January, 1996 whereas according to Constable Jagdish PW-12, accused Shiv Narayan was arrested in his presence from the place of his employment i.e. the factory on 23rd January, 1996. That shows Shiv Narayan worked in the factory till 23rd January, 1996. If the last seen circumstance had any importance and Sanjeev Kumar or for that matter the employer Sat Pal Aggarwal knew that accused had taken the deceased with him after closing of the factory on 1st January, 1996 and thereafter deceased was not available then this circumstance they ought to have narrated to the police on 4th January, 1996 when they went to identify the dead body. But nothing of this sort was done. This creates a doubt in the version given by prosecution witness namely Sanjeev Kumar PW-5.

19. Therefore, taking into consideration the cumulative effect of all the circumstances it can safely be concluded that the prosecution miserably failed to established last seen circumstance.

20. The prosecution has neither alleged nor proved that it was a case of conspiracy between Shiv Narayan and Jal Singh. Even for the sake of argument if it is presumed that accused Shiv Narayan nursed a grudge against deceased, there is nothing on record to show as to what grudge accused Jal Sing had against the deceased. Why would he committed murder of the deceased? No evidence has been brought on record to show common animus between Jal Singh and accused Shiv Narayan. No meeting of mind or pre-planning alleged against the accused persons. In the absence of common animus the charge under Section 34 IPC fails. No previous enmity between the deceased and Jal Singh alleged.

21. Another circumstance which prosecution relied was the gunny bag lying near the dead body of Vijay Singh. According to the case of the prosecution, the said gunny bag belonged to the factory of Ashok Kumar PW-2. Ashok Kumar PW-2 when subjected to cross examination admitted that he had closed the said factory in Nakul Gali since 1994. He shifted his factory to new premises at Karan Gali, Vishwas Nagar, New Delhi. He had allowed accused Shiv Narayan to stay at night in the closed factory at Nakul Gali and that four or five gunn bags with monogram Mamta Bhog Atta were lying in the open. When further subjected to cross examination he could not tell when those bags were purchased by him and from whom. He could not produce any document or the gunny bag with the monogram of Mamta Bhog Atta to show that the gunny bag recovered from the spot was similar to the gunny bag lying in his factory. If some bags as alleged by Ashok Kumar PW-2 were lying in his factory then for the purpose of comparison the police should have seized it and taken into possession. But nothing of that sort was done. Therefore, it is difficult to presume that the bag which was found lying by the side of the dead body was out of the bags lying in the factory of Ashok Kumar at Nakul Gali were accused Shiv Narayan used to sleep at night.

22. Another circumstance which has been used against the accused persons is the recovery of blood from the room of Shiv Narayan as well as the blood stained clothes from the room of accused Jal Singh and recovery of knife. The question of recovery of blood from the room of accused Shiv Narayan has been heavily relied by the learned Addl. Sessions Judge but unfortunately the learned Trial Court failed to appreciate that as per prosecution's own story accused Shiv Narayan had an injury on his index finger of right hand. That blood found in his room which was not visible to the naked eye could have been his own. Blood group of the accused was not taken, therefore, even if that blood lifted from the room of Shiv Narayan was human and of "B" group it cannot be said that it could not have been of the accused particularly in the absence of his blood group. In the absence of having blood group of the accused it conclusively cannot be said that the blood which was lifted from his room was that of the deceased. It could be the blood of the accused himself because of the injury on the index finger from where blood might have oozed out and fallen on the floor. Solely on this circumstance in the absence of proven facts the conviction cannot be upheld. It must be stated that even otherwise lifting of the blood from the room of accused Shiv Narayan having not been witnessed by any independent witnessed was bad in law. It has not been explained by the IO why independent witnesses were not associated particularly when IO admitted that Shri P.S. Chakutra was called to lift the blood. The said Mr. Chakutra had also not been made witness nor examined. Therefore, the alleged lifting of blood from the room of the accused creates a doubt, coupled with the fact that Mr. P.S. Chakutra of FSL has also not been examined as a witness to corroborate that he lifted the blood from the room of the accused.

23. As regard the recovery of clothes at the instance of accused Jal Singh there are material contradictions in the statements of police witnesses. Head Constable Mahavir Singh PW-29 said that pant and shirt was produced by the accused Jal Singh from the peg of the eastern wall of the room of the accused. Whereas according to Constable Jagdish PW-12, the accused Jal Singh produced the shirt and pant from the box. There is thus clear contradiction between the testimony of Constable Jagdish and that of INSP. Kali Ram Malik PW-30. It is admitted case of the prosecution that number of people had collected there at the time of the alleged search and recovery, but none from the public was associated during the search of the house of Jal Singh or at the time of his arrest. This has been so admitted by Constable Jagdish PW-12 Even Mahavir Singh PW-29 admitted that no witness from the locality was associated before conducting the house search of the accused Jal Singh. According to Constable Jagdish PW-12 Jal Singh was called outside his room and interrogated him. Except disclosure statement the other facts of his interrogation according to Mahavir Singh PW-29 had not been recorded. There were number of rooms adjacent to the room of Jal Singh and while effecting the alleged recovery of pant and shirt no public witness or neighbour was called to associate the recovery. Even in the use of vehicle for going to Nand Nagri by the police party there is material contradiction in the testimony of PW-12 and PW-29. According to Constable Jagdish PW-12 and PW-29. According to Constable Jagdish PW-12, the police party used police pick-up while going to the house of accused Jal Singh. Whereas according to Head Constable Mahavir Singh PW-29 police party went to Nand Nagari to the house of Jal Singh on three-wheeler scooter and that Inspector Kali Ram Malik PW-30 came on his own motor-cycle. This is contrary to what has been said by Constable Jagdish PW-12. Even the I.O. did not say that he called any independent witness at the time of carrying out the search in the room of Jal Singh or at the time of recovering of the blood stained shirt and pant. It is an admitted fact on record that there were number of rooms beside the room of Jal Singh in that premises but no one was called to witness the same. There are material contradictions in the statements of Mahavir Singh PW-29 and that of Insp. Kali Ram Malik PW-30. According to Mahavir Singh PW-29, Jal Singh was called out from his house, whereas according to Insp. Kali Ram Malik PW-30, Jal Singh met them outside the house near the gate and that he was interrogated while sitting in the three-wheeler scooter. These contradictions create doubts about the alleged recovery which was not witnessed by any independent witness.

24. As regard the recovery of knife at the instance of accused persons admittedly knife was recovered from an open plot adjacent to the factories. The knife was not buried or concealed under the earth or inside the bushes. Nor it was kept hidden under the wall. The alleged incriminating article as per the prosecution's version was found lying in the open on the ground near the wall on an open plot visible to naked eyes. As per Insp. Kali Ram Malik PW-30 there were lights in that plot and even at night time they could see the knife. The knife was visible because of lights. Therefore, the recovery of the alleged knife from an open space visible to naked eyes not hidden anywhere cannot be said to be a recovery admissible under Section 27 of the Evidence Act. What is admissible under 27 of the Evidence Act is not merely knowledge of the accused regarding the place of concealment of the material object but the fact that the accused himself and concealed it there to the exclusion of the knowledge of others. What is not covered cannot be discovered. The weapon found in open space near the wall not hidden in that circumstance the statement of the accused cannot said to distinctly lead to discovery of that weapon. In fact the murder in this case took place between 1st January, 1996 to the morning of 4th January, 1996 because the dead body was recovered on 4th January, 1996 at 9.40 AM whereas the weapon of offence was recovered on 23rd January, 1996 from an open space. In such circumstance the recovery of knife from an open space visible to naked eyes from open space accessible to all and made after almost 23 days of the occurrence cannot be of any avail to the prosecution. Moreover, at the time of alleged recovery Insp. Kali Ram Malik PW-30 did not associate any independent witness though according to him there were number of people collected at the time of recovery of the knife. It is a4;79H7m2mp;10H settled proposition of law that on the information furnished by the accused to the police officers which led to the recovery of the weapon is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence reliable. Admittedly there is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the article was made from any place which is "open or accessible to others". Therefore, the crucial question would be whether it was ordinarily visible to others? If the answer is in the positive then the recovery would be inadmissible under Section 27 of the Evidence Act. The fact of the matter in the present case is the place wherefrom the alleged knife was recovered was not only open and accessible to others but according to the I.O. himself the weapon of offence was ordinarily visible. It was not concealed nor hidden. Therefore, it cannot be said that the accused had the exclusive knowledge as to where the weapon of offence was hidden or kept. When the weapon of offence was ordinarily visible and had not been concealed rather lying on the ground in a open ground accessible to all, the recovery in such circumstances, to our mind, is hit under Section 27 of the Evidence Act.

25. The learned Addl. Session Judge while dealing with material discrepancies in the testimony of prosecution witnesses tried to brush aside by taking recourse to the lapse of memory on account of passage of time. But we cannot loose sight of the fact that it is the duty of the prosecution to lead best possible evidence instead of escaping its liability by pleading lapse of memory on account of passage of time. Nor the testimony of one of the prosecution witness can be said to be unreliable on the presumption that he might have suffered from a weak memory and forgotten few facts when he was called upon to divulge upon the details of the event. Hence the testimony of Constable Jagdish PW-12 could not have been discarded by the learned Addl. Session Judge by using the expression that Constable Jagdish had fallen in trap of psychological process and, therefore, his testimony could not be believed. There is material discrepancy with regard to recovery of pant and shirt in the testimony of Constable Jagdish and that of the I.O. and both of them as per prosecution's own case were party to the said recovery and this material discrepancy create a doubt with regard to recovery.

26. There is another material contradiction with regard to the position in which the dead body was recovered. According to Constable Vitthal PW-6 and ASI Subeydar Singh PW-21 dead body was found outside the drain. By the side of the dead body they found a gunny bag and a coloured scarf lying by its side. Whereas according to Inspector Baljeet Singh PW-7 the dead body was in the gunny bag itself, only the face and hands were petruding out from the said bag. This statement is contradictory to the testimony of Constable Vitthal PW-6 and SI Subeydar Singh PW-21. The learned Addl. Sessions Judge tried to explain it away by observing that:

Sh. Sohal has brought a minor discrepancy to my notice to the effect as to whether the dead body was lying open or wrapped in the gunny bag of Mamta Bhog Atta. This discrepancy has come over the record, since Inspect. Baljit Singh deposed that the said body was wrapped in the gunny bag while the other witnesses narrate that it was lying open. Inspect, Baljit Singh reaches the spot almost at the time when Const. Vitthal and ASI Subeydar Singh reached there. Admittedly Inspector Baljit Singh was Addl. SHO of P.S. Vivek Vihar in those days and was superior of these two witnesses. It seems that he had sent these witnesses to the nearby houses to call the residents to get the deadbody identified and when these witnesses were away, he took out the deadbody from the gunny bag. Const. Vitthal and ASI Subeydar Singh might have seen the deadbody only when the same was taken out of the gunny bag by Inspect. Baljit Singh.

27. Surprisingly the Addl. Sessions Judges by making these observations has made Inspector Baljeet Singh the culprit of tampering with the evidence. it was nobody's case that Insp. Baljeet Singh took out the dead body from the gunny bag or that the sent the other two witnesses for calling the neighbours. This argument has been coined up by the learned Addl. Sessions Judge out of his own imagination. In the absence of there being any substance in the same, it is noted for the purpose of rejection. In fact this was a material contradiction on the vital aspect of position of the dead body for which there was no explanation rendered by the prosecution.

28. From the discussion made above it is apparent that none of the circumstances relied upon by the prosecution have been established in this case beyond reasonable doubt. In fact the chain the circumstantial evidence is so incomplete that it cannot justify the conviction of the appellants at all. On facts link in the chain of circumstances is missing and hence conviction of the accused cannot be sustained.

29. For the reasons stated above the appeals are allowed. Impugned conviction and sentence set aside. Appellants be released forthwith if not required in any other case. Order be conveyed to the appellant in jail through the Superintendent, Central Jail, Tihar.