Delhi High Court
Ashok Kumar @Govind vs State on 9 April, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
% Judgment reserved on : 30.01.2009
Judgment delivered on: 09.04.2009
+ CRL.A. No.274/2007
ASHOK KUMAR @GOVIND ...Appellant
Through : Mr. Abhinav Bajaj, Advocate.
versus
STATE ...Respondent
Through :Ms. Richa Kapoor, Advocate.
CRL.A. No.275/2007
SUNIL KUMAR @KALU ...Appellant
Through : Mr. Tarun Sharma, Advocate.
versus
STATE ...Respondent
Through :Ms. Richa Kapoor, Advocate.
CRL.A. No.397/2007
DHARAM SINGH ...Appellant
Through : Mr. Ajay Chaddha, Advocate.
versus
STATE ...Respondent
Through :Ms. Richa Kapoor, Advocate.
CRL.A. 398/2007
JAIPAL SINGH ...Appellant
Through : Mr.Deepak Manmohan Bhalla,
Advocate.
versus
STATE ...Respondent
Through :Ms. Richa Kapoor, Advocate.
CRL.A. 410/2007
Crl. A.274, 275, 397, 398, 410 & 601 OF 2007 Page 1 of 37
MADAN ...Appellant
Through : Mr.Deepak Manmohan Bhalla,
Advocate.
versus
STATE ...Respondent
Through :Ms. Richa Kapoor, Advocate.
CRL.A. 601/2007
JAI BHAGWAN ...Appellant
Through : Mr.Deepak Manmohan Bhalla,
Advocate.
versus
STATE ...Respondent
Through :Ms. Richa Kapoor, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.
1. Case of the prosecution is that the appellants and
co-accused Jeet Kaur (who has been acquitted after the trial)
hatched a conspiracy on 16.9.2001 to kidnap for ransom
Master Rishabh and Master Shubham, twins aged 4 ½ years
and in furtherance thereof on 17.9.2001 kidnapped Master
Rishabh and Master Shubham as also abducted the driver
Sunil, employed by Shri Rajiv Aggarwal father of Master
Rishabh and Master Shubham. That, in furtherance of the
conspiracy, to eliminate they being identified, since appellant
Ashok was also employed as a driver by Shri Rajiv Aggarwal
and hence driver Sunil knew appellant Ashok, driver Sunil was
murdered and body hidden in a cane field next to a canal in
village Silarpur and as per the conspiracy ransom in sum of
Rupees One Crore for each child was demanded. As per the
prosecution, the conspirators gave effect to the conspiracy
inasmuch as on 17.9.2001 kidnapped the two children and
abducted the driver and thereafter murdered the driver as also
demanded ransom but their mission failed because they were
apprehended.
2. It is not in dispute that Master Rishabh and Master
Shubham were students of Bal Bharti School, Sector-14,
Rohini, studying in Nursery Section-A. As proved by their class
teacher Ms.Anjana Baweja PW-1, who we note has not been
cross-examined, Master Rishabh and Master Shubham sons of
Shri Rajiv Aggarwal were dropped at the school in the morning
by the driver of Rajiv Aggarwal and at 12.45 noon the same
day the children were entrusted to driver Sunil after school
hours were over.
3. Neither the two young boys nor their driver
returned to their house. Their father Rajiv Aggarwal went to
the local police station i.e. PS Prashant Vihar at around 6:00
PM on 17.9.2001 and informed HC Khushi Ram PW-5, the
officer on duty, that his children as also the driver were
missing. HC Khushi Ram noted the statement Ex.PW-5/B in the
daily diary register vide DD No.13A and informed the police
control room. He registered the FIR Ex.PW-5/A on the basis of
the statement Ex.PW-5/B under Section 363 IPC. Soon
thereafter Shri Rajiv Aggarwal received a telephone call
demanding ransom of Rupees One Crore per child, which
information he dutifully passed on to ASI Chander Pal Singh
PW-29 to whom the case was entrusted for investigation after
FIR Ex.PW-5/A was registered. ASI Chander Pal Singh recorded
a supplementary statement of Shri Rajiv Aggarwal under
Section 161 Cr.P.C. and added the offence under Section 364-A
IPC for further investigation in the FIR.
4. The employees of Shri Rajiv Aggarwal were kept
under observation and search teams were constituted to look
for clues and in particular to search and find out the Maruti
Zen bearing registration No.DL-8CV-5369, the car in which
driver Sunil had picked up the children from the school.
5. Information was received on 18.9.2001 that the car
was seen on the service street at Wazirpur Industrial Area. ASI
Chander Pal Singh PW-29 accompanied by Const. Sohan Lal
PW-15 immediately left for the spot and seized the car vide
seizure memo Ex.PW-15/B. Crime team was summoned. Shri
P.K.Gautam PW-18, Senior Scientific Officer, CFSL
accompanied by Shri A.D. Sahay, Senior Scientific Assistant
came to the spot and lifted chance finger prints from the car.
6. At the laboratory Shri S.K. Chadha PW-20, Senior
Scientific Officer was able to successfully develop ten chance
prints of the finger prints which were lifted from the car.
7. Since the employees of Rajiv Aggarwal were kept
under surveillance, probably for the reason the police officers
thought that possible leads could emerge from suspicious
conduct of some employee, conduct of appellant Ashok, also
employed as a driver by Rajiv Aggarwal, was found to be
suspicious as it was noticed that he was making unnecessary
visits to the house, probably to familiarize himself as to what
Rajiv Aggarwal and the police were doing. SI Ramesh PW-30,
joined the investigation of the case on 20.9.2001. He, along
with HC Ramesh, Const. Dayanand and Const. Amit went to
House No.269, J.J. Colony, Shakarpuri, where Ashok used to
reside. He was interrogated and during interrogation broke
down and vide disclosure statement Ex.PW-23/B recorded by
SI Ramesh PW-30 and witnessed by Const. Dayanand PW-23,
disclosed that with the desire of making money all accused
persons had discussed on different dates as to how they would
give effect to a plan to kidnap the children of Rajiv Aggarwal
and that final shape to the conspiracy was given in the house
of Jaipal on 16.9.2001 when all accused were present and that
as per the plan the children were kidnapped on 17.9.2001 and
removed to village Balwapur and driver Sunil was murdered
near Balwapur by Jai Bhagwan, Madan, Dharam and Jaipal.
Appellant Ashok was arrested at 2:15 PM on 20.9.2001.
9. Appellant Ashok thereafter led SI Ramesh Singh and
Const. Dayanand as also Const. Amit to House No.B-291,
Jahangir Puri, Delhi and pointed out the same informing the
police officers that this was the residence of accused Jaipal. At
around 2:15 PM when the police team, accompanied by Ashok
reached the house and it was pointed out as being the
residence of Jaipal, on entry into the house, the police team
found not only Jaipal but even Sunil present in the house. Both
were arrested at 2:15 PM on 20.9.2001.
10. Jaipal and Sunil were interrogated. Jaipal made a
disclosure statement Ex.PW-23/E and Sunil made a disclosure
statement Ex.PW-23/F, both of which were recorded by SI
Ramesh PW-30 and were witnessed by Const. Dayanand PW-
23.
11. In his disclosure statement Jaipal disclosed the facts
already told by Ashok Kumar to the police pertaining to the
conspiracy. Additionally, he gave details as to how the
children were kidnapped. In his disclosure statement he
disclosed that the children were kept in village Balwapur and
he could lead the police to the said place. He disclosed that
driver Sunil was strangulated with a rope and his body was
dumped.
12. In his disclosure statement Sunil disclosed same
facts as were already known to the police and as disclosed by
Ashok pertaining to the conspiracy. He additionally stated that
after the children were kidnapped he was informed by Jai
Bhagwan and Jaipal that the body of driver Sunil has been
dumped in a sugarcane field in village Balwapur, U.P.
13. It was but logical that the investigating officer
would form a raiding team and leave for village Balwapur, for
this was the village in which, as per the disclosure statements
of Ashok, Jaipal and Sunil, the two children were kept in
confinement and also the dead body of the deceased driver
Sunil was dumped.
14. But before the police party could leave for village
Balwapur an information was received that the two children
would be brought to Delhi by a conspirator who would
disembark from a public transport bus at Anand Vihar Inter
State bus terminal.
15. SI Chander Pal Singh PW-29, Inspector Ravinder, SI
Ramesh Singh PW-30 and Inspector Subhash Chander formed
the raiding party and took along with them Rajiv Aggarwal to
facilitate the children being identified, if the secret information
received was correct.
16. Appellant Madan was seen with the two children
disembarking from a bus. Rajiv Aggarwal recognized his
children and pointed them out to the raiding party. Madan
was apprehended at 7:00 PM as recorded in the arrest memo.
The children were recovered and handed over to the father
vide memo Ex.PW-12/C.
17. Madan was interrogated and made a disclosure
statement Ex.PW-29/B which was recorded by SI Chander Pal
Singh PW-29 and was witnessed by SI Ramesh Singh PW-30.
In his statement, Madan disclosed the facts pertaining to the
conspiracy as were already known to the police and as
disclosed by Ashok. The additional information given was that
the dead body of driver Sunil could be got recovered by him
from the spot where the same was dumped. Further additional
information given by him was that after being kidnapped the
children were confined in the house of Dharam Singh in village
Balwapur and that he could take the police to the said house.
18. The police team consisting of SI Chander Pal Singh,
Inspector Ravinder Singh, SI Subhash Tandon and SI Ramesh
Singh left for village Balwapur and reported first at the police
post Brij Ghat under jurisdiction of PS Garh Mukteshwar
informing the local police the purpose of their visit i.e. to
apprehend accused Dharam Singh as also be led to the place
where the dead body of driver Sunil was stated to be dumped
so that the dead body could be recovered. SI Shri Ram PW-26
the chowki incharge of the police post at Brij Ghat recorded
the visit by the police officers of Delhi in the daily diary and
accompanied the police team.
19. Since appellant Madan and Jaipal, in their disclosure
statements had stated that they could lead the police to the
house where the children were confined i.e. the house of
Dharam Singh. Both led the police to a house in village
Balwapur and pointed out the same to be the house of Dharam
Singh who was found present in the house and was arrested at
3:00 AM on 21.9.2001 i.e. the intervening night of 20th and 21st
September 2001. He was interrogated by SI Chander Pal Singh
PW-29 who recorded his disclosure statement Ex.PW-29/A in
which he disclosed the facts already known to the police
pertaining to the conspiracy and that he knew the place where
the dead body of Sunil was thrown. He disclosed that the two
children were kept in his house and Madan had taken them
away. That while in his house he had changed the school
dress of the children. That the school dress, the school bag
with the books, lunch boxes and belts of the children were
hidden by him and that he can get recovered the same.
Pursuant thereto Dharam Singh got recovered two school bags
containing diaries of Bal Bharti Public School, books and lunch
box. He also got recovered two caps, two shirts, two shorts
and two belts of the children which were seized vide seizure
memo Ex.PW-26/A.
20. Thereafter, the police personnel from Delhi Police
accompanied by SI Shri Ram PW-26, along with Madan, Jaipal
and Dharam Singh proceeded to a place between village
Balwapur and village Silarpur as they were led to the said
place by Madan, Jaipal and Dharam Singh.
21. Since the place where Madan, Jaipal and Dharam
Singh led the police to, fell within the jurisdiction of PS
Bahadur Garh (UP), SI Shri Ram PW-26 informed the duty
officer of PS Bahadur Garh about the police from Delhi going to
the place in question. Said information was recorded at PS
Bahadur Garh vide DD No.6, Ex.PW-27/A at 5:40 AM on
21.9.2001. On receipt of said information, SI Charan Singh
PW-27 of PS Bahadur Garh also joined the police team.
22. It is apparent that dawn was breaking and it was
early morning time on 21.9.2001. Madan, Jaipal and Dharam
Singh led the police team to a sugarcane field in village
Silarpur and from near a canal, at about a distance of 20 yards
from the canal, hidden within sugarcane, pointed out a dead
body stating that this was the body of driver Sunil. The
pointing out by Dharam Singh stands recorded in the pointing
out memo Ex.PW-26/C. The pointing out by Madan stands
recorded in the pointing out memo Ex.PW-26/D. The pointing
out by Jaipal stands recorded in the pointing out memo Ex.PW-
26/E.
23. The body was seized vide seizure memo Ex.PW-7/A
drawn up by SI Charan Singh PW-27 of PS Bahadur Garh.
24. Public persons were associated when the dead body
was recovered on the pointing out of Dharam Singh, Madan
and Jaipal. They are Pappi PW-3, Mangru Singh PW-4, Ramesh
Chand PW-6, Manbir Singh PW-7 and Hari Singh PW-8.
25. Since the dead body was recovered within
jurisdiction of PS Bahadur Garh, inquest proceedings were
conducted by SI Charan Singh of PS Bahadur Garh. The body
was sent to the mortuary of Mukund Lal Municipal Hospital
where Dr.Jitender Kumar PW-10 conducted the post-mortem at
4:00 PM on 21.9.2001 and prepared the post-mortem report
Ex.PW-10/A recording therein that the body was 3 - 4 days old
and that the cause of death was asphyxia due to strangulation.
Ligature marks 33 cm long and ½ cm wide all around the neck
above adam's apple was noted. It was noted that the tongue
was protruding between the teeth. The skin was peeled off at
places and that the scalp hair was loosened. A vest,
underwear, pant, shirt and belt removed from the body as also
a cord piece around the neck of the body was handed over to
SI Charan Singh PW-27.
26. At the mortuary, before commencement of the
post-mortem, Aabha Devi PW-11 and Sudhir Poddar PW-2, the
wife and the brother respectively of deceased Sunil identified
the dead body as that of Sunil.
27. After the post-mortem, the body was handed over
to Aabha Devi and Sudhir Poddar. The inquest papers and the
vest, underwear, pant, shirt and belt removed from the body of
the deceased as also a cord piece around the neck of the body
were sent by SI Charan Singh to the SHO PS Prashant Vihar
under cover of his forwarding letter Ex.PW-27/E.
28. To complete the narrative of the facts as they
unfolded and as claimed by the police, Jeet Kaur was
apprehended on 21.9.2001 at 10:00 AM. She is the wife of
appellant Jaipal.
29. On 22.9.2001, without seeking any permission from
the Court and there being no identification of Jaipal, Dharam
Singh and Madan, who were in detention, and as per the
requirement of The Identification of Prisoners Act 1920, Const.
Ravinder PW-16 took sample finger print impressions of Jaipal,
Dharam Singh and Madan and handed over the same to
Inspector Ravinder Kumar who in turn forwarded the same on
26.9.2001 to the Forensic Science Laboratory where
S.K.Chadha PW-20, Senior Scientific Officer of the Laboratory,
after comparison of the sample finger prints, gave an opinion
Ex.PW-20/D to the effect that chance finger prints Q-10 was
identical with the specimen left thumb impression of Jaipal
marked LTS1.
30. Appellant Jai Bhagwan was arrested on 3.7.2002.
He made a disclosure statement Ex.PW-28/C recorded by
Inspector Sita Ram Meena PW-28 in which he disclosed the
facts pertaining to the conspiracy as already disclosed to the
police by Ashok as also the facts already known to the police
pertaining to the acts committed to give effect to the
conspiracy. His sample finger print impressions were
obtained, without any order by any Court and without the
process of identification being done as required by the
Identification of Prisoners Act 1920 and the same were sent to
PW-20 who vide report Ex.PW-20/K gave an opinion that the
chance print marked Q-6 was identical with the specimen left
hand thumb impression of Jai Bhagwan marked LTS15.
31. Needless to state, save and except admissible by
virtue of Section 27 of the Evidence Act, the disclosure
statements made by the accused, being admissions of guilt,
are inadmissible in evidence. It is for this reason, while
referring to the disclosure statements of the accused, we have
summarized the facts disclosed therein which are confessional
of the guilt and have highlighted such facts disclosed which
have relevance under Section 27 of the Evidence Act.
32. The accused were charged for the offence
punishable under Section 120-B IPC pertaining to the
conspiracy to kidnap for ransom Master Rishab and Master
Shubham and for the conspiracy to murder Sunil. They were
also charged for the offence of kidnapping for ransom as also
for the charge of murder.
33. At the trial, the various police officers associated
with the investigation and the ones who had transmitted
various exhibits to the Forensic Laboratory and had received
back the same, as also the police officers of PS Garh
Mukteshwar and PS Bahadur Garh were examined as the
witnesses of the prosecution. They proved the facts noted
hereinabove pertaining to the arrest of the accused; the
disclosure statements made by the accused; the recovery of
Master Rishab and Master Shubham from accused Madan; the
recovery of the clothes and the school bag of the children from
the house of Dharam Singh and the recovery of a dead body
identified that of deceased Sunil on the joint pointing out of
appellants Madan, Jaipal and Dharam Singh. The forensic
experts who had lifted the chanced finger prints; the one who
had developed the same and had compared the same with the
specimen finger prints of Jaipal, Dharam Singh, Madan and Jai
Bhagwan were examined, who proved the lifting of the chance
finger prints and the report Ex.PW-20/D and Ex.PW-20/K.
34. Ms. Anjana Baweja proved that the two children had
attended school on 17.9.2001 and had left with the driver Sunil
at 12:45 noon. Pappi PW-3, Mangru Singh PW-4, Ramesh
Chand PW-6, Manbir Singh PW-7 and Hari Singh PW-8 deposed
that on being called by SI Charan Singh PW-27 they had
reached a sugarcane field in village Silarpur and had witnessed
the recovery of a dead body of a male person.
35. Since an argument was raised during hearing of the
appeal to the truthfulness of the recovery of a dead body as
alleged by the prosecution, we may note that in cross
examination, Pappi PW-3 stated that Delhi Police personnel
were not present when the body was seized. We further note
that SI Shri Ram PW-26 of PS Garh Mukteshwar also stated
that the Delhi Police had left the place where the dead body
was recovered at around 6:00 AM.
36. Dr. Jitender Kumar PW-10 who had conducted the
post-mortem of the deceased proved the post-mortem report.
Abha Devi PW-11, the wife of the deceased and Sudhir Poddar
PW-2, the brother of the deceased proved that they had
identified the dead body as that of Sunil. Relevant would it be
to note that on being cross examined, Abha Devi deposed that
the clothes on the person of her husband were the same which
he was wearing when he left the house.
37. Vide impugned judgment and order dated
28.2.2007, holding that there was no evidence against Jit Kaur
save and except the statements of the co-accused implicating
her, which were inadmissible in evidence, learned Trial Judge
has acquitted Jit Kaur.
38. All other accused i.e. the appellants have been
convicted for the offences of which they were charged for.
39. Noting that no recoveries had been made pursuant
to the disclosure statement of appellant Ashok and Sunil and
merely because the names of the other accused persons and
the contours of the conspiracy were disclosed in said
statements and that the facts pertaining to the conspiracy
stood established by the fact that the crime was given effect
to, it has been held that the disclosure statements of Ashok
and Sunil are inadmissible in evidence with reference to
Sections 25 to 27 of the Evidence Act.
40. But, in para 27 of the impugned decision, the
learned Trial Judge has held as under:-
"27. I have perused the disclosure statement of the
accused Ashok and that of accused Sunil Ex.PW-23/B
and Ex.PW-23/E in detail. The information given to
the accused Ashok by the accused Sunil and the
information given to the accused Sunil by the
accused Jaipal as mentioned in their respective
disclosure statements can very well be admissible in
evidence u/s 8 and u/s 10 of Indian Evidence Act. It
is only upon the disclosure statement of the accused
Ashok that led to the arrest of the accused Sunil and
further the disclosure statement of the accused
Sunil could make the police successful for the arrest
of the accused Jaipal which ultimately led to the
recovery of the incriminating material and the dead
body. Admittedly, after the hatching of conspiracy,
no overt or covert act was done by the accused
Ashok and Sunil but they had the knowledge and
participation of the conspiracy, as reflected from the
statement of other co-accused. They had also
knowledge about the indulgence of the other
accused with whom they had hatched conspiracy in
doing the illegal act, and hence, their case clearly
falls within the ambit of Section 120-B IPC under the
guidelines laid down by the Hon'ble Supreme Court
of India as herein after discussed."
41. In the preceding paragraphs, being paras 24 to 26,
the learned Trial Judge has noted Section 3, Section 4, Section
5, Section 8, Section 10, Section 27 and Section 114 of the
Evidence Act and has opined that conduct of an accused is
relevant by virtue of Section 8 of the Evidence Act. The
learned Trial Judge has also held that in a charge pertaining to
conspiracy, anything said or done by a conspirator is
admissible evidence.
42. Pertaining to accused Jaipal, Madan and Dharam
the learned Trial Judge has held that the dead body of Sunil
was recovered by the police pursuant to their disclosure
statements and upon the three leading the police to the place
which was pointed out by the three as recorded in the pointing
out memos Ex.PW-26/C, Ex.PW-26/D and Ex.PW-26/E and this
was incriminating evidence against the three showing their
involvement in the abduction and murder of Sunil. Since the
testimony of PW-1 establish that the minor children left the
school with their driver Sunil, the learned Trial Judge has held
that from the fact that the three were involved in the
abduction and murder of Sunil an inference had to be drawn
that the three had kidnapped the minor children of Rajiv
Aggarwal. The learned Trial Judge has further held that the
fact that the two minor children were recovered from Dharam
Singh proved his accomplicity. The fact that the accused had
told that the two children were confined in Village Balwapur
and that the clothes of the children were recovered from the
house of Dharam Singh in Village Balwapur was also
incriminating evidence against accused Dharam Singh, Jaipal
and Madan. Against accused Jai Bhagwan, as also accused
Jaipal the fact that their finger prints were lifted from the car
was held to be incriminating evidence against the two.
43. In view of the fact that Rajiv Aggarwal PW-12 had
categorically deposed of having received a ransom call, the
learned Trial Judge has concluded that the appellants are
proved guilty of having entered into the conspiracy as alleged
and it being executed.
44. We shall be dealing with the arguments raised in
during arguments of the appeals after noting the same i.e.
would note the argument and thereafter deal with the same
immediately thereafter.
45. A very forceful argument was raised by Sh.Deepak
Manmohan Bhalla, learned counsel for appellants Jaipal, Madan
and Jai Bhagwan that the dead body recovered by the police
was not that of Sunil. Thus, counsel argued that there was no
discovery of a fact pursuant to the disclosure statements of
Madan, Jaipal and Dharam Singh. Learned counsel urged that
if this be so, the linkage between the recovery of the dead
body as that of Sunil the driver who went missing with the
children does not get linked to the conspiracy.
46. The factual basis of the argument was the condition
of the body noted in the post-mortem report Ex.PW-10/A, to
the effect that the skin was peeled off at places and that the
scalp hair was loosen. Also the fact that it was recorded in the
post-mortem report that the body was 3-4 days old. It was
urged that putrefaction or decomposition of a body
commences soon after the death and is a slow process. With
reference to Medical Jurisprudence it was urged that only after
8 to 10 days of the death, the skin starts peeling and nails and
hair become loose. It was urged that under the circumstances
the dead body could not be that of Sunil the driver for the
reason as per the prosecution the driver went missing in the
late afternoon of 17.9.2001. Counsel further urged that from
the cross examination of the wife of the deceased it was
apparent that she had identified the dead body of her husband
with reference to the clothes of the deceased.
47. In Modi's Medical Jurisprudence, putrefactive
changes have been listed as under:-
Putrefactive Changes Time after
death
1. Greenish coloration over the iliac 1 to 3
fossae. The eyeballs, soft and yielding. days
2. Green coloration spreading over the 3 to 5
whole abdomen, external genitals and days
other parts of the body. Frothy blood
from mouth and nostrils.
3. Abdomen distended with gas. 8 to 10
Cornea fallen in an concave. Purplish days
red streaks of veins prominent on the
extremities. Sphincters relaxed. Nail
firm
4. Body greenish brown. Blisters 14 to 20
forming all over the body. Skin peels days
off. Features unrecognizable. Scrotum
distended. Body swollen up owing to
distension. Maggots on the body.
Nails and hair loose and easily
detached.
5. Soft parts changed into a thick, 2 to 5
semifluid, black mass. Skull, abdomen months
and thorax burst. Bones exposed.
Orbits empty.
48. Now, the doctor did not find any maggots in the
body. Ex facie, the body could not be of category 4 above. No
doubt, the scalp hair were found to be loose, but the nails were
not found to be loose. In any case, it has not been recorded in
the post-mortem report that the nails were found to be loose.
49. It has to be noted that PW-10 has not been
subjected to any cross examination on this aspect and no
questions had been put to him with reference to the physical
condition of the body noted by him and on the issue how could
the body be of a person who died 3-4 days back. Further, the
wife and the brother of the deceased had deposed
categorically that they had identified the dead body and that it
was of Sunil. Whereas Sudhir Poddar, the brother of the
deceased has not been cross examined on the issue of
identification of the dead body, the wife has been subjected to
a cross examination, but not fully. A question has been put to
her during cross examination to which she has responded that
the clothes on the dead body of her husband was the same
which he was wearing when he left the house.
50. The clothes of the deceased are not only his
undergarments but consist of his pant and a shirt as also a
belt. Who, other than a wife would be familiar with the clothes
and a belt of a man, more so, when both come from a humble
background and are not well to do. The reason is that the
number of personal clothing of such man would presumably be
few, and in all probability the wife would be washing and
ironing the clothes. Women have an instinctive uncanny eye
to identify personal household goods, jewellery and clothes
etc.
51. In our opinion, without subjecting PW-2, PW-10 and
PW-11 to any cross examination on the point of identity of the
dead body, the arguments advanced in appeal are nothing but
surmises and conjectures.
52. We thus hold that the dead body recovered on
21.9.2001 as per the recovery memo Ex.PW-7/A was that of
the driver Sunil.
53. Pertaining to the recovery of the dead body we note
that not only two police officers, one each from PS Garh
Mukteshwar and PS Bahadur Garh were associated but even a
team of police personnel from Delhi was associated and as
many as 5 public witnesses i.e. local villagers were associated.
It is no doubt true that Pappi PW-3 has stated that Delhi Police
Personnel were not present when the body was seized and SI
Shri Ram PW-26 of PS Garh Muktheshwar stated that Delhi
Police had left the place where the dead body was recovered
at 6:00 AM, but from said facts introduced by the two
witnesses it cannot be said that the other witnesses were
lying.
54. It has to be noted that when the Delhi Police
reached Balwapur they reported the purpose of their visit to
the police post at Brij Ghat under jurisdiction of PS Garh
Mukteshwar and SI Shri Ram PW-26 joined the police team.
After the recoveries were effected from the house of Dharam
Singh, Madan, Jaipal and Dharam Singh led the police to a
place between village Balwapur and Village Silarpur and since
said place fell within the jurisdiction of PS Bahadur Garh, at the
asking of SI Shri Ram the police team reported their presence
at PS Bahadur Garh where vide DD No.6, Ex.PW-27/A entry
was made at 5:40 AM of said fact and SI Charan Singh PW-27
of PS Bahadur Garh also joined the police team. We note that
SI Chandarpal Singh PW-29 from the Delhi Police has also
deposed to the recovery of the dead body of the deceased
from the field in his presence. This part of his testimony has
gone rebutted. We note that there are general suggestions at
the end of the cross examination that he was deposing falsely.
55. The fact that the police personnel from Delhi were
present when the dead body was recovered is established not
only from the testimony of PW-26 and PW-27, the two police
officers of U.P. Police, but also from the entries made in the DD
registers of the police post Brij Ghat under jurisdiction of PS
Garh Mukteshwar and PS Bahadur Garh.
56. We thus hold that the prosecution has successfully
proved that the dead body recovered from the field on
21.9.2001 was that of deceased Sunil.
57. The controversy pertaining to disclosure statements
and joint pointing out of places wherefrom recoveries are
effected, stands concluded by the Supreme Court in the
decision reported as 2005 (11) SCC 600 State Vs. Navjot
Sandhu. In para 145 the Supreme Court held that disclosure
statements of accused made to the police followed by both
accused jointly taking the police to a place and getting
recovered an object pursuant to the disclosure statement
would not take out the disclosure statements from outside the
purview of Section 27 of the Evidence Act.
58. The making of the disclosure statements by Madan,
Jaipal and Dharam Singh has been proved by the testimony of
SI Chanderpal PW-29, SI Ramesh Singh PW-30 and Const.
Dayanand PW-23. The pointing out memos Ex.PW-26/C,
Ex.PW-26/D and Ex.PW-26/E have been proved by means of
the testimony of SI Chanderpal PW-29 as also the testimony of
SI Shri Ram Singh PW-26. It thus stand established that the
dead body of Sunil was recovered from a place not within the
knowledge of the police and a fact was discovered by the
police namely that Madan, Jaipal and Dharam Singh had
knowledge about the dead body being in the sugarcane field,
at a distance of about 15 meters from a canal, hidden by
sugarcane, in village Silarpur i.e. the place wherefrom the
dead body was actually recovered.
59. Thus, it stands proved that appellants Jaipal, Madan
and Dharam Singh had knowledge about Sunil (deceased)
being murdered and his dead body being hidden in the
sugarcane field in village Silarpur and that the aforesaid
evidence pertaining to their disclosure statements and the
recovery of the dead body at their instance and the
identification thereof as that of deceased Sunil is incriminating
evidence against the three since they have not been able to
explain said evidence against them.
60. It is not in dispute that while taking the finger
prints of Madan, Dharam Singh and Jaipal on 22.9.2001 and
while taking the finger prints of appellant Jai Bhagwan after he
was arrested on 3.7.2002, no permission was obtained from
the Court and as required by the Identification of Prisoners Act
1920, neither was got properly identified.
61. It was urged by learned counsel for said accused
that under the circumstance the reports of the finger print
experts Ex.PW-20/D and Ex.PW-20/K were inadmissible in
evidence.
62. Ms.Richa Kapoor, learned counsel for the State
urged that a Constitution Bench of 11 Judges of the Supreme
Court had held that taking specimen handwriting, specimen
finger prints or anything which revealed the personal
attributes of an accused was permissible and was not violative
of Article 20(3) of the Constitution of India.
63. We need not note the various authorities on the
subject inasmuch as the same were considered by us in our
decision dated 5.3.2009 in Crl.A.No.682/2008 Santosh @ Bhure
Vs. The State. In paras 19 to 24 thereof we had held as
under:-
"19. Learned counsel for the State urges that a
Constitution Bench of 11 Judges of the Supreme Court,
in the decision reported as 1962 (3) SCR 10 State of
Bombay vs. Kathi Kalu Oghad & Ors. has upheld the
constitutional validity of compelling an accused to give
specimen handwritings. It has been held that the
same does not contravene Article 20(3) of the
Constitution of India and thus the fact that the police
obtained the specimen handwriting of Neeraj when he
was in their custody does not invalidate the said act.
Learned counsel was at pains to point out that the
Constitution Bench of the Supreme Court was
considering three references pertaining to three views
taken by the High Court of Bombay, Punjab and West
Bengal pertaining to compelling an accused to give his
specimen handwriting, fingerprints and specimen
signatures respectively and that in the latter two
cases the palm and finger print impressions as also
the specimen signatures were obtained with the
permission of the magistrate concerned but in the first
case pertaining to the Bombay High Court the
specimen handwritings were taken when the accused
was in police custody. Thus, learned counsel urged
that the Constitution Bench upheld the action of taking
specimen handwriting by the police when the accused
was in police custody.
20. It may be noted that the Constitution Bench
of the Supreme Court was dealing with the issue
whether to compel an accused to give his blood
sample, palm and fingerprints impressions, signatures
and handwriting etc. would or would not be violative of
Article 20(3) of the Constitution of India which made it
unconstitutional for a person to be a witness against
himself. The Constitution Bench held that to be a
witness means to give evidence. It was held that
giving handwriting samples or fingerprints or palm
impressions did not tantamount to giving evidence
and that when a handwriting sample or a fingerprint or
a palm impression was obtained by the police it did
not amount to compelling an accused to be a witness
against himself.
21. In the decision reported as AIR 1980 SC
791 State of UP vs. Rambabu Mishra, with reference to
the decision of the Constitution Bench in Kathi Kalu
Oghad's case (supra) in para 7 it was observed as
under:-
"7. S.73 of the Evidence Act was considered by us in
State (Delhi Administration) v. Pali Ram, AIR 1979 SC
14 where we held that a Court holding an enquiry
under the Criminal Procedure Code was entitled under
S.73 of the Evidence Act to direct an accused person
appearing before it to give his specimen handwriting
to enable the Court by which he may be tried to
compare it with disputed writings. The present
question whether such a direction, under S.73 of the
Evidence Act, can be given when the matter is still
under investigation and there is no proceeding before
the Court was expressly left open. The question was
also not considered in State of Bombay vs. Kathi Kalu
Oghad, AIR 1961 SC 1808, where the question which
was actually decided was that no testimonial
compulsion under Article 20(3) of the Constitution was
involved in a direction to give specimen signature and
handwriting for the purpose of comparison."
22. In para 3 to 6 and para 8 of the decision in
Rambabu Mishra's case (supra) it was observed as
under:-
"3. Section 73 of the Evidence Act is as follows:
73. In order to ascertain whether a signature, writing
or seal is that of the person by whom it purports to
have been written or made, any signature, writing or
seal admitted or proved to the satisfaction of the
Court to have been written or made by that person
may be compared with the one which is to be proved,
although that signature, writing or seal has not been
produced or proved for any other purpose.
The Court may direct any person present in Court to
write any words or figures for the purpose of enabling
the Court to compare the words or figures so written
with any words or figures alleged to have been written
by such person.
This section applies also, with any necessary
modifications to finger-impressions.
4. The second paragraph of Section 73 enables the
Court to direct any person present in Court to give
specimen writings "for the purpose of enabling the
Court to compare" such writings with writings alleged
to have been written by such person. The clear
implication of the words "for the purpose of enabling
the Court to compare" is that there is some
proceeding before the Court in which or as a
consequence of which it might be necessary for the
Court to compare such writings. The direction is to be
given for the purpose of 'enabling the Court to
compare' and not for the purpose of enabling the
investigating or other agency 'to compare'. If the case
is still under investigation there is no present
proceeding before the Court in which or as a
consequence of which it might be necessary to
compare the writings. The language of Section 73
does not permit a Court to give a direction to the
accused to give specimen writings for anticipated
necessity for comparison in a proceeding which may
later be instituted in the Court. Further Section 73 of
the Evidence Act makes no distinction between a Civil
Court and a Criminal Court. Would it be open to a
person to seek the assistance of the Civil Court for a
direction to some other person to give sample writing
under Section 73 of the Evidence Act on the plea that
it would help him to decide whether to institute a civil
suit in which the question would be whether certain
alleged writings are those of the other person or not?
Obviously not. If not, why should it make any
difference if the investigating agency seeks the
assistance of the Court under Section 73 of the
Evidence Act on the plea that a case might be
instituted before the Court where it would be
necessary to compare the writings?
5. We may also refer here to Section 5 of the
Identification of Prisoners Act, 1920, which provides:
5. If a Magistrate is satisfied that, for the purposes of
any investigation or proceeding under the CrPC, 1898,
it is expedient to direct any person to allow his
measurements or photograph to be taken, he may
make an order to that effect, and in that case the
person to whom the order relates shall be produced or
shall attend at the time and place specified in the
order and shall allow his measurements or photograph
to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any
person to be photographed except by a Magistrate of
the first class:
Provided further, that no order shall be made under
this section unless the person has at some time been
arrested in connection with such investigation or
proceeding.
Section 2(a) of the Act defines "measurements" as
including "finger impressions and foot print
impressions".
6. There are two things to be noticed here. First,
signature and writing are excluded from the range of
Section 5 of the Identification of Prisoners Act and,
second, 'finger impressions' are included in both
Section 73 of the Evidence Act and Section 5 of the
Identification of Prisoners Act. A possible view is that it
was thought that Section 73 of the Evidence Act would
not take in the stage of investigation and so Section 5
of the Identification of Prisoners Act made special
provision for that stage and even while making such
provision, signature and writings were deliberately
excluded. As we said, this is a possible view but not
one on which we desire to rest our conclusion. Our
conclusion rests on the language of Section 73 of the
Evidence Act.
xxx xxx
8. The view expressed by us in the earlier paragraphs,
on the construction of Section 73, Evidence Act was
the view taken by the Madras High Court in T. Subbiah
v. S.K.D. Ramaswamy Nadar AIR 1970 Mad. 85, the
Calcutta High Court in Farid Ahmed v. the State AIR
1960 Cal 32 (Mitter J., at page 32). and Priti Ranjan
Ghosh and Ors. v. The State (1973) 77 Cal WN 865,
the High Court of Punjab and Haryana in Dharamvir
Singh v. State 1975 Crl. L. J. 884, the High Court of
Madhya Pradesh in Brij Bhushan Raghunandan Prasad
v. The State AIR 1957 Madhya Pradesh 106, the Orissa
High Court in Srikant Rout v. State of Orissa 1972 (2)
Cuttack Weekly Reporter 1332 and the Allahabad High
Court in the judgment under appeal. A contrary view
was taken by the Patna High Court in Gulzar Khan and
Ors. v. State AIR 1962 Patna 255 and the High Court of
Andhra Pradesh in B. Rami Reddy and Ors. v. State of
Andhra Pradesh, 1971 Crl. L.J. 1519 (A.P.). We do not
agree with the latter view. We accordingly dismiss the
appeal and while doing so we would suggest that
suitable legislation may be made on the analogy of
Section 5 of the Identification of Prisoners Act and
provide for the investiture of Magistrates with the
power to issue directions to any person, including an
accused person, to give specimen signatures and
writings."
23. In the decision reported as 1994 (5) SCC
152 Sukhvinder Singh & Ors. Vs. State of Punjab,
noting that the specimen writing of Sukhvinder Singh
was obtained by the police when he was in police
custody, notwithstanding the fact that Sukhvinder
Singh had admitted in his statement under Section
313 Cr.P.C. that he gave the specimen handwriting it
was held that the opinion of the handwriting expert
had to be excluded while considering the evidence
against Sukhvinder Singh. We note that the said
evidence brought on record inculpatory evidence
against Sukhvinder Singh in respect of ransom letters
Ex.P-A and Ex.P-C alleged by the prosecution to be in
the handwriting of Sukhvinder Singh.
24. Thus, excluding the opinion of the
handwriting expert pertaining to the letter recovered
by the police from the left pocket of the deceased, we
are left with only one piece of evidence against
Neeraj. The same is the recovery of a knife at his
instance."
64. Thus, unfortunately for the prosecution, the
incriminating evidence against Jaipal and Jai Bhagwan
pertaining to their finger prints being lifted from the car
bearing registration No.DL 8C B 5369 from which the children
were kidnapped on the way to the house from the school
cannot be admitted in evidence and hence the same has to be
excluded while considering the incriminating evidence against
the two.
65. No serious attempt was made by learned counsel
for Dharam Singh to challenge the recoveries of the school bag
containing the books of the children as also the recovery of the
school dress of the children and their tiffin boxes from his
house. The said recoveries prove that the two children were
confined in the house of Dharam Singh after they were
kidnapped.
66. Pertaining to the recovery of the children from
Madan we note that while deposing in Court on 1.6.2004 SI
Shri Ram PW-26 stated that the two children were recovered
from the house of Dharam Singh in village Balwapur but went
on to correct himself the very next day i.e. on 2.6.2004 that he
had said so by mistake and that no children were recovered
from the house of Dharam Singh.
67. The submission by learned counsel for Madan that
the name of the secret informer who informed the SHO of PS
Prashant Vihar that a man would be disembarking at Anand
Vihar Interstate Bus Terminal has not been disclosed by any
police officer, requiring this Court to disbelieve the testimony
of the police officers and the father of the children, has hardly
impressed us. The reason is obvious. Inasmuch as criminals
have their own network, the police has a network of secret
informers and if their names are disclosed, the network of
informers created by the police would be breached and the
informants life or limb may be endangered.
68. The submission that the two children were neither
examined as witnesses of the prosecution nor their statements
were recorded under Section 164 Cr.P.C. has to be noted and
rejected for the reason it has come on record that the two
children were aged 4½ years. It is obvious that both were
infants and could have hardly told anything meaningful.
69. The discussion by the learned Trial Judge on the
scope and applicability of Section 8 and Section 10 of the
Evidence Act is totally misplaced and the conclusions drawn by
the learned Judge in para 27 of the impugned decision are
wholly erroneous.
70. A criminal trial is not an enquiry into the conduct of
an accused for any purpose other than to determine whether
he is guilty of the offence charged. In that connection, that
piece of conduct of the accused can been held to be
incriminatory which has no reasonable explanation except on
the hypothesis that he is guilty. Conduct which destroys the
presumption of innocence can alone be considered as
material. Pertaining to Section 10 of the Evidence Act, suffice
would it be to state that Section 10 can be divided into two
parts. Part 1 refers to the existence of reasonable grounds to
form a belief that two or more persons have conspired and the
second part would come into operation when the condition of
the first part is satisfied and makes relevant anything said,
done or written by the conspirators as a relevant fact against
the co-conspirators. In the decision reported as AIR 1965 SC
682 Sardar Sardul Singh Kavaesher Vs. State of Maharashtra it
was held that the evidentiary value of the act, deed or writing
referred to in Section 10 of the Evidence Act is limited by two
circumstances; namely, that the acts shall be in reference to
the common intention, and in respect of a period after such
intention was entertained by anyone of them.
71. Needless to state, once a conspiracy is given effect
to, the individual acts of the conspirators thereafter do not
brush the others with the same taint for the reason once a
common intention is given effect to the theory of
constructiveness no longer remains in operation.
72. Thus, the reasoning of the learned Trial Judge
pertaining to appellant Ashok and Sunil as recorded in para 27
of the impugned decision is completely faulty.
73. The result of our aforenoted reasoning may be
summarized.
74. As against appellants Ashok and Sunil there is no
admissible incriminating evidence against them. Their
inculpatory disclosure statements are totally inadmissible in
evidence as nothing has been recovered or discovered by the
police pursuant thereto and cannot even be read as evidence
against them under Section 8 or Section 10 of the Evidence
Act.
75. Against appellants Jaipal, Madan and Dharam Singh
the incriminating evidence is their disclosure statements, joint
pointing out memos and recovery of the dead body of Sunil
from the place identified by them. Against appellant Madan
there is further incriminating evidence i.e. the two children
being recovered from his possession. Against appellant
Dharam Singh there is further incriminating evidence of the
recoveries of the school dress and the school bag etc. of the
children from his house. Against appellant Jai Bhagwan there
is no incriminating evidence for the reason the facts which he
disclosed to the police in his disclosure statement were
already within the knowledge of the police and nothing
incriminating was recovered by the police pursuant to his
disclosure statement. Fortunately for him and unfortunately
for the prosecution the evidence pertaining to his finger prints
being lifted from the car in which the children were abducted
is inadmissible in evidence.
76. From the evidence against Jaipal, Dharam Singh
and Madan any reasonable person with a logical mind would
reach the irresistible conclusion that the three had participated
in taking deceased Sunil to the place where his dead body was
found and after strangulating him to death, dumped the body
in sugarcane fields. Since Sunil had left the school taking
along with him the two abducted children it is apparent that
said three persons had a role in abducting the two children.
The further evidence against Dharam Singh and Madan
pertaining to the recovery of the personal belongings of the
children from one and the recovery of the children from
another, further strengthens the chain of circumstances
against Dharam Singh and Madan wherefrom an inference of
their guilt pertaining to the conspiracy and the execution
thereof can be inferred.
77. Crl.A.No.274/2007, Crl.A.No.275/2007 and
Crl.A.No.601/2007 filed by Ashok Kumar, Sunil Kumar and Jai
Bhagwan are allowed. The impugned judgment and order
dated 28.2.2007 convicting them of the charges framed
against them is set aside. They are acquitted of the charges
framed against them. They are directed to be set free if not
required in custody in any other case.
78. Crl.A.No.397/2007, Crl.A.No.398/2007 and
Crl.A.No.410/2007 filed by Dharam Singh, Jaipal and Madan are
dismissed.
79. Copy of this order be sent to the Superintendent
Central Jail Tihar for compliance.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
April 09, 2009
mm
