Delhi High Court
Rakesh Kumar & Ors. vs State on 27 August, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : 21st July, 2009
Judgment Delivered on: August 27, 2009
+ CRL.A. 19/2007
RAKESH KUMAR & ORS. ..... Appellants
Through: Mr. M.L.Yadav, Advocate
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, Advocate
CRL.A. 51/2007
SHARDA JAIN & ANR. ..... Appellants
Through: Mr. R.N.Mittal, Sr.Advocate with
Mr. Tanveer A.Mir, Advocate and
Mr. Manoj Kumar, Advocate
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, Advocate
CRL.A. 121/2007
PUSHPENDER ..... Appellant
Through: Mr. Rajpal Singh, Advocate
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, Advocate
CRL.A. 139/2007
ROSHAN SINGH ..... Appellant
Through: Mr. R.N.Mittal, Sr.Advocate with
Mr. Tanveer A.Mir, Advocate and
Mr. Ashutosh Bhardwaj, Advocate
versus
STATE ..... Respondent
Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 1 of 183
Through: Ms. Richa Kapoor, Advocate
CRL.A. 144/2007
RAJINDER @ RAJESH @ RAJU ..... Appellant
Through: Mr. Rakesh Kumar, Advocate
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, Advocate
CRL.A. 65/2007
NIRVIKAR @ DOCTOR ..... Appellant
Through: Mr. D.B.Goswami, Advocate
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J.
1. Atma Ram Gupta (hereinafter referred to the
"Deceased"), a member of the Indian National Congress, was a
Councillor of the Municipal Corporation of Delhi, having been
elected from Ward No.27, Tri Nagar, Delhi, in the Elections
held in February 2002.
2. At 10:15 AM on 24.8.2002 he left his residence in an
Indica Car bearing registration No.DL 6SA 0025 owned by him,
which was driven by his driver Prabhu Yadav PW-17. While
leaving the house he told his wife Sumitra Gupta PW-18, that
he was going to attend a rally organized by the Congress Party
at Firozshah Kotla Grounds Delhi.
3. He did not return to his residence till late evening and
could not be contacted on his mobile phone since the same
was switched off. His wife got worried. She contacted the
younger brothers of Atma Ram Gupta as also her children and
apprised them of the situation. The children of Atma Ram
Gupta as also his younger brothers came to his residence and
made inquiries from persons who were in contact with Atma
Ram Gupta during the day. They could not ascertain the
whereabouts of Atma Ram Gupta till midnight and thus
Rajinder Pal Gupta PW-9, the younger brother of Atma Ram
Gupta, lodged a missing person report at PS Keshav Puram.
HC Ashok Kumar PW-6, recorded DD No.31, Ex.PW-6/A at 1:00
AM on 25.8.2002 in which it stands recorded that on 24.8.2002
at about 10:30 AM Atma Ram Gupta left his residence in his
white coloured Indica Car bearing registration No.DL 6SA 0025
which was driven by the driver Prabhu Yadav and that he went
to the residence of Sharda Jain, a Member of Indian National
Congress and also a Municipal Councillor from Keshav Puram
Ward New Delhi. That on reaching the residence of Sharda
Jain, Atma Ram sent back his car with the driver and
thereafter, in the company of Sharda Jain and another person,
Atma Ram Gupta left the residence of Sharda Jain in an Indica
Car bearing registration No.DL 3SAB 0016 belonging to Sharda
Jain, which was driven by Prakash Chauhan the driver of
Sharda Jain and they left for Firozshah Kotla grounds to attend
a rally. When Atma Ram Gupta did not return home till
evening his family members contacted Sharda Jain who told
them that Atma Ram Gupta had accompanied her to the rally
held at Firozshah Kotla grounds and attended the same for
sometime. Leaving the venue of the rally the said four
persons proceeded in the car of Sharda Jain towards ring road
and at a red light near Jamuna Bazar, Hanuman Mandir,
opposite Nigam Bodh Ghat the driver of Sharda Jain got down
from the car as he was not feeling well. The unidentified
person started driving the car. Sharda Jain further told them
that after some time Atma Ram Gupta got down from her car.
4. On 25.8.2002 itself, Inspector Shiv Raj Singh PW-55,
recorded the statement, Ex.PW-62/DB, of Sumitra Gupta PW-
18, as also the statement Ex.PW-9/C of Rajinder Pal Gupta PW-
9, the younger brother of Atma Ram Gupta.
5. In her statement, Ex.PW-62/DB, Sumitra Gupta
stated that on 24.08.2002 at about 10.15 A.M. her husband
left his residence in his Indica car bearing registration no.DL
6SA 0025 being driven by his driver Prabhu Yadav. Before
leaving the house, her husband told her that he would first go
to the house of Sharda Jain and thereafter would proceed to a
rally along with Sharda Jain. She further stated that while
leaving the house her husband was wearing a watch in his
right hand as also a gold ring on his finger, on which letters
'AR' were engraved and was also carrying a mobile phone,
some cards and documents. After some time Prabhu Yadav
returned to the house and told her that he had dropped her
husband at the residence of Sharda Jain and that Atma Ram
Gupta told him to take back the car to the house because he
would go to the rally in the car of Sharda Jain. When her
husband did not return home till evening she contacted Sharda
Jain over the telephone to enquire about the whereabouts of
her husband and Sharda Jain informed her that her husband
did not accompany her to the rally.
6. In his statement Ex.PW-9/C, Rajinder Pal Gupta PW-
9, stated same facts which were already recorded in DD No.31,
Ex.PW-6/A.
7. On the next day i.e. 26.08.2002, Inspector Shiv Raj
Singh PW-55, recorded the statement Ex.PW-11/DA of Om
Parkash, the driver of Sharda Jain, and the statement Ex.PW-
10/A of the mother of Om Parkash; namely, Shanti PW-10.
8. In his statement Ex.PW-11/DA, Om Parkash stated
that he had driven Sharda Jain and Atma Ram Gupta in the car
of Sharda Jain to the venue of the rally at Firozshah Kotla
Grounds and that another person named Rajesh @ Raju was
also in the car. From the venue of the rally they all left and he
drove the car towards ring road. When the car reached the
red light near Hanuman Mandir at Jamuna Bazar, Nigam Bodh
Ghat, since he was not feeling well, he got down from the car
and Rajesh started driving the car. He further stated that Raj
Kumar the brother of Sharda Jain, Rajesh @ Raju and a person
named Roshan Singh Pradhan had visited the house of Sharda
Jain 8-10 days prior to 24.8.2002 and he saw them again in the
house of Sharda Jain on 22.8.2002. He heard suspicious talks
between Roshan Singh and Sharda Jain. He further disclosed
that in the night of 24.8.2002 Sharda Jain had visited his house
and had told him not to divulge to anyone that Atma Ram
Gupta was in her company in the morning of 24.8.2002.
9. In her statement Ex.PW-10/A, Shanti PW-10, the
mother of Om Prakash, stated that Sharda Jain visited their
house in the night of 24.08.2002 and asked her son Om
Parkash not to divulge to anyone that Atma Ram Gupta was in
her company in the morning.
10. On 26.08.2002, Inspector V.S.Meena PW-62, took
over the investigation of the case.
11. The fact that the deceased was present in the
company of Sharda Jain and Rajinder @ Rajesh @ Raje @ Raju
on the day he went missing; that Sharda Jain, Rajinder @
Rajesh @ Raje @ Raju, Raj Kumar @ Raju and Roshan Singh
were meeting each other few days before the deceased went
missing and that something fishy was being discussed in the
meetings between Sharda Jain, Raj Kumar, Roshan Singh and
Rajinder, the said persons became suspects.
12. On 27.08.2002 Inspector V.S.Meena PW-62,
accompanied by Inspector Shiv Raj Singh PW-55, SI Anil Kumar
PW-44 and HC Sunita PW-31, went to the residence of Sharda
Jain and arrested her at 01.00 P.M. as recorded in the arrest
memo Ex.PW-31/A. On interrogation by Inspector V.S.Meena
PW-62, in the presence of Inspector Shiv Raj Singh PW-55, Anil
Kumar PW-44 and HC Sunita PW-31, Sharda Jain made a
disclosure statement Ex.PW-31/D wherein she disclosed that
she hatched a conspiracy with her brother Raj Kumar and two
other persons; namely, Roshan Singh and Rajinder to murder
the deceased and that pursuant to the conspiracy the
deceased was taken to village Chajjupur on 24.8.2002 in her
car. Two hired assassins shot him as per plan when the
deceased was led to village Chajjupur. That she could take the
police and show the place where the deceased was murdered.
13. After she was arrested, Sharda Jain produced one
mobile phone having number 9811508688. The phone along
with the SIM card were seized vide memo Ex.PW-31/C. Indica
car bearing registration No.DL 3SAB 0016 was parked outside
the residence of Sharda Jain. It was searched. One pair of
molded P.O.P. denture set on which name of Dr.S.C.Rajput was
engraved; four invitation cards dated 24.08.2002 one of which
had the name of the deceased written thereon and two labels
for parking of the car at Firozshah Kotla ground were
recovered and hence seized vide memo Ex.PW-44/C. Mud was
found sticking on the right rear tyre of the said car. The same
i.e. the tyre was seized vide memo Ex.PW-44/C1.
14. When aforenoted events were transpiring in the
house of Sharda Jain, Raj Kumar the brother of Sharda Jain
came there and tried to slip away on seeing the police.
However, he could not manage to escape and was arrested at
3 P.M. as recorded in the arrest memo Ex.PW-44/A. On being
interrogated by Inspector V.S.Meena PW-62, in the presence of
Inspector Shiv Raj Singh PW-55 and SI Anil Kumar PW-44, Raj
Kumar made a disclosure statement Ex.PW-44/O wherein he
disclosed that he was a party to the conspiracy with Sharda
Jain and two other persons; namely, Roshan Singh and
Rajinder to murder the deceased and that two other persons;
namely, Pushpender and Nirvikar were the hired assassins who
fired shots at the deceased in pursuance of the said
conspiracy. He stated that he could lead the police to the
place and identify the same, where the deceased was
murdered. He further disclosed that he had removed the wrist
watch of the deceased and could get the same recovered.
15. Pursuant to their respective disclosure statements,
Sharda Jain and Raj Kumar led the police party consisting of
Inspector V.S.Meena PW-62, HC Sunita PW-31, SI Ram Kumar
PW-32, SI Anil Kumar Chauhan PW-44 and SI Shiv Raj Singh
PW-55 to a Dak Bangla near a Rajwaha (minor canal) situated
behind village Chajjupur, U.P. and vide pointing out memos
Ex.PW-44/D and Ex.PW-44/E both of them, at the same time,
pointed out a spot and stated that the said spot is the place
where the deceased was murdered.
16. On a thorough investigation of the place pointed
out by accused Sharda Jain and Raj Kumar, the earth therein
was found to be stained with blood at three different spots. SI
Ram Kumar PW-32, lifted the portions of the earth stained with
blood as also the earth control and seized the same vide
memo Ex.PW-44/F. Thereafter the control mud/soil at the place
in question was lifted and seized vide memo Ex.PW-44/G.
Inspector V.S.Meena PW-62, prepared the site plan Ex.PW-62/B
of the spot in question; recording therein at points „A‟, „B‟ and
„C‟, the spots where the earth was found to be stained with
blood and samples lifted.
17. SI Manohar Lal PW-29, a draftsman and HC Sajjan
Kumar PW-33 a photographer were summoned. SI Manohar Lal
prepared the site plan to scale Ex.PW-29/A of the place in
question, at the instance of Inspector V.S.Meena. HC Sajjan
Kumar took five photographs Ex.PW-33/A to Ex.PW-33/E of the
place in question; negatives whereof are Ex.PW-33/A1 to
Ex.PW-33/E1.
18. Thereafter accused Raj Kumar led the police party
consisting of Inspector V.S.Meena PW-62, SI Anil Kumar
Chauhan PW-44 and SI Shiv Raj Singh PW-55, to his residence
at village Gulawati, District Bulandshar, UP and recovered a
wrist watch of make „Citizen Quartz‟ with a gold chain from
behind a speaker kept at a ventilator in the balcony of his
house and the same was seized vide memo Ex.PW-44/H. The
said watch was deposited in the Malkhana on the date of its
recovery itself i.e. 28.08.2002 as recorded vide entry No.1560
entered by HC Dinesh Kumar PW-43, in the Store-Room
Register (Part I).
19. Attempts made to locate the dead body of Atma
Ram Gupta failed till 31.08.2002, when around 5 A.M. on
31.8.2002, Ram Kumar PW-22, an agriculturist and resident of
village Deher Ki Madia, Bulandshar, UP saw a dead body of a
male person lying in a sub-canal of the canal known as
„Bulandshar Rajwaha/Sanota Canal‟. Ram Kumar apprised the
police officials. Since the body found in the canal appeared to
be that of the deceased, the police called the relatives of the
deceased for the purposes of the identification of the said
body. Rajinder Pal Gupta PW-9, Ved Prakash Gupta PW-15,
Rajpal Gupta PW-16, brothers of the deceased and Mahender
Pal Gupta PW-8 and Amrit Lal Singhal PW-37, friends of the
deceased, identified the body found in the canal as that of the
deceased.
20. Since the body of the deceased was found within
the jurisdiction of Police Station Gulawati, UP, the police
officials of the said police station were joined in the recovery.
Inspector V.S.Meena PW-62, informed the duty officer of PS
Gulawati by way of a written application Ex.PW-62/C about the
recovery of the body of the deceased based whereon
Const.Lalit Kumar PW-60, prepared DD Entry Ex.PW-60/B at
5.00 A.M. on 31.08.2002. Taking along a copy of the afore-
noted DD Entry, SI Rambir Singh PW-61, reached the canal,
lifted the earth from near the canal and water oozing out from
the body of the deceased and seized the same vide Ex.PW-
23/A. SI Rambir Singh also prepared inquest report Ex.PW-61/A
and other documents pertaining to the recovery and conduct
of post-mortem of the deceased. Inspector V.S.Meena PW-62,
prepared the rough site plan Ex.PW-62/D of the place of the
recovery of the body of the deceased; recording therein at
points „A‟ and „B‟ the spots where the body of the deceased
was found stuck in the heap of garbage in the canal and where
the body was kept after being taken out from the canal. HC
Sajjan Kumar PW-33, photographer, reached the said place
and took the photographs Ex.PW-33/X1 to Ex.PW-33/X12 of the
body of the deceased and the place of the recovery of the said
body; negatives whereof are Ex.PW33/X1A to Ex.PW-33/X12A.
(It may be noted here that the photographs Exhibits PW-33/X1,
PW-33/X7, PW-33/X8, PW-33/X9, PW-33/X10 and PW-33/X11
are the photographs of the body of the deceased whereas the
photographs Exhibits PW-33/X2, PW-33/X3, PW-33/X4, PW-
33/X5 PW-33/X6 and PW-33/X12 are the photographs of the
place of the recovery of the dead body of the deceased)
Ravinder Singh PW-23 and Jai Chand PW-26, public persons,
witnessed the investigation conducted at the place in question
and preparation of the memos as also the other documents
prepared by the police in connection with recovery of the body
of the deceased.
21. Thereafter the body of the deceased was sent to
the mortuary at District Hospital, Bulandshar, where
Dr.S.K.Aggarwal PW-21 and Dr.M.M.Aggarwal conducted the
post-mortem of the deceased at 2.30 P.M. on 31.08.2002 and
prepared the post-mortem report Ex.PW-21/A which records
following ante-mortem injuries on the person of the deceased:-
"1. Firearm wound of entry 1.0 cm x 1 cm x cavity
deep on right side forehead 2.0 cm above lateral end
of right eye brow, margins inverted.
2. Firearm wound of exit 2.0 cm x 3.5 cm x cavity
deep on left side of head 1.0 cm above left ear. On
exploration, injuries nos.1 and 2 found
communicating with each other. Margins inverted.
3. Abraded contusion 2.5 cm x 1.5 cm above top
of head."
22. The relevant portion of the external examination of
the deceased recorded in the post-mortem report Ex.PW-21/A
reads as under:-
"...Skin peeled off at places, scalp hair loose and
easily detachable. Body covered with mud at places.
Skin of hands and feet (soles) wrinkled. Foul smell
present. Face scrotius and penis swollen."
23. The post-mortem report further records that the
brain of the deceased was in a liquefied state; that the small
intestine was contain gases; that the death was caused due to
coma, shock and haemorrhage as a result of ante-mortem
injuries found on the person of the deceased and that the
death of the deceased had taken place about one week prior
to the conduct of the post-mortem.
24. After the post-mortem, the doctors handed over the
clothes and artificial teeth, six in number; viscera of the
deceased; vial of sample of preservative used for preserving
the viscera of the deceased and one sample seal to SO of PS
Gulawati. HC Ajay Pal PW-4, handed over the afore-noted
materials as also the materials seized vide memo Ex.PW-23/A;
namely, earth lifted from near the canal and water which had
oozed out from the body of the deceased; the post-mortem
report and its copies and the inquest papers to Inspector
V.S.Meena PW-62, vide memo Ex.PW-4/A.
25. Since accused Roshan Singh could not be located in
his house, the police flashed a wireless message, Ex.PW-55/A,
to all SSP‟s and DCP‟s in India to search for Roshan Singh and
a Maruti 800 car bearing registration No.DDU 1371 owned by
him. Proceedings were initiated to declare him a proclaimed
offender.
26. Attempts were made to trace Pusphpender and
Nirvikar. On 6.9.2002, Inspector Ram Chander PW-20, along
with other police officials was present near PS Tappal, District
Aligarh when a secret informer informed him that accused
Pushpender is staying in the house of his relative situated at
village Bharatpur. Inspector Ram Chander PW-20, sent the
aforesaid information to Police Station Keshav Puram, where
DD No.11, Ex.PW-62/E, was recorded at 3.20 P.M. noting the
said information. Thereafter Inspector Ram Chander
proceeded to village Bharatpur and apprehended Pushpender
from a road in the village. Inspector V.S.Meena accompanied
by SI Sukaram Pal PW-39 and SI Anil Kumar Chauhan PW-44,
reached village Bharatpur and formally arrested accused
Pushpender at 7.30 P.M. as recorded in the arrest memo
Ex.PW-20/A.
27. The personal search of Pushpender resulted in the
recovery of Rs.44/- and one I-Card issued in the name of the
deceased by All India Crime Prevention Organization and the
same were seized vide memos Ex.PW-20/B and Ex.PW-20/C
respectively. On being interrogated by Inspector V.S.Meena
PW-62, in the presence of SI Sukaram Pal and SI Anil Kumar
PW-44, Pushpender made a disclosure statement Ex.PW-20/D
wherein he disclosed that he had fired a shot at the deceased
in pursuance of a conspiracy to murder the deceased.
28. On 17.09.2002 Inspector Ram Chander PW-20,
telephonically informed duty officer at PS Keshav Puram that
accused Nirvikar who was granted bail in connection with FIR
bearing no.250/01 registered against him and had got his bail
cancelled and is lodged in Aligarh Jail, based whereon, DD
No.7A Ex.PW-62/F, was recorded at 10.45 A.M. noting the
same information. On receipt of said information, Inspector
V.S.Meena PW-62, proceeded to Aligarh, where after filing an
application and getting permission from the District Judge,
Aligarh, he obtained the custody of accused Nirvikar and
formally arrested him at 01.00 A.M. on 18.09.2002 as recorded
in the arrest memo Ex.PW-39/A1.
29. On interrogation by Inspector V.S.Meena PW-62, in
the presence of SI Sukaram Pal PW-39, accused Nirvikar made
a disclosure statement Ex.PW-39/A, wherein he disclosed that
the shot which caused the death of the deceased was fired by
him. Additionally, he stated that he can point out the place
where the deceased was murdered and the residence of
accused Roshan Singh and can also get recovered the country
made pistols used for committing the murder of the deceased.
Pursuant to his disclosure statement, Nirvikar led the police
party consisting of Inspector V.S.Meena PW-62 and SI Sukaram
Pal PW-39, to a Dak Bangla near a Rajwaha which was situated
behind village Chajjupur, U.P. and vide pointing out memo
Ex.PW-39/B pointed out a spot and stated that said spot is the
place of the murder of the deceased. (It may be noted here
that the said spot is the same which was told by accused
Sharda Jain and Raj Kumar as the spot where the murder of
the deceased was committed i.e. the spot was already known
to the police). Thereafter, he led the afore-noted police
officials to the residence of his brother-in-law situated at
village Chajjupur and got recovered an I-card issued in the
name of the deceased by ISCKON, from underneath a trunk,
which was seized vide memo Ex.PW-39/C. (It may be noted
here that in the disclosure statement Ex.PW-39/A made by
accused Nirvikar he has not made any mention of any I-card or
of the fact that he can get one recovered).
30. On the basis of secret information, the police party,
consisting of Inspector V.S.Meena PW-62, SI Anil Kumar
Chauhan PW-44 and SI Sukaram Pal PW-39, arrested accused
Rajinder Singh at a bus stand situated at JJ Colony, Wazirpur,
Delhi, at 8.30 P.M. on 30.09.2002 as recorded in the arrest
memo Ex.PW-44/J. On being interrogated by Inspector
V.S.Meena PW-62, in the presence of SI Sukaram Pal and SI
Anil Kumar PW-44, Rajinder Singh made a disclosure
statement Ex.PW-39/E, wherein he disclosed that he hatched a
conspiracy with Sharda Jain, Raj Kumar, Roshan Singh and
Rajinder to murder the deceased and that two unknown
persons fired shots at the deceased in pursuance of the said
conspiracy. Pursuant to his disclosure statement, Rajinder
Singh led the police party consisting of Inspector V.S.Meena
PW-62 and SI Sukaram PW-39, to a Dak Bangla near a Rajwaha
which was situated behind village Chajjupur, U.P. and vide
pointing out memo Ex.PW-39/G pointed out a spot and stated
that spot is the place of the murder of the deceased.
Thereafter he led the afore-noted police officials to the
residence of Sharda Jain and vide pointing out memo Ex.PW-
39/F pointed out the said house as the place where the
conspiracy to murder the deceased was hatched. (It may be
noted here that the said places were already in the knowledge
of the police).
31. On 01.10.2002, Inspector V.S.Meena PW-62, filed
an application Ex.PW-62/H before the court of Metropolitan
Magistrate for conduct of Test Identification of Rajinder.
Rajinder refused to participate in the TIP proceedings on the
ground that he is known to the witnesses. Said fact was
recorded in the record Ex.PW-40/A pertaining to the TIP
proceedings.
32. On 13.10.2002, SI Manohar Lal PW-29, prepared
the site plan to scale Ex.PW-29/B of the place where th dead
body of the deceased was recovered. He did so at the
instance of Insp.V.S.Meena.
33. On 16.10.2002 Inspector V.S.Meena PW-62, filed an
application before the court of Metropolitan Magistrate, Delhi
for conduct of Test Identification of the wrist watch recovered
at the instance of accused Raj Kumar. On 21.10.2002, Test
Identification of the said wrist watch was conducted and
Rajinder Pal Gupta PW-9, younger brother of the deceased,
identified the wrist watch recovered at the instance of Raj
Kumar, as that of the deceased. The Test Identification
Proceedings were recorded vide Ex.PW-40/C. Being relevant
to discuss the issue relating to the identification of the watch
as that of the deceased, it may be noted that it is recorded in
Ex.PW-40/C as under:-
"On opening of the pullanda one wrist watch make
citizen quartz with gold chain is found. All the wrist
watches including the case property is displayed by
me in a row and the case property is lying at fourth
position from my left and at sixth place from my
right. It is pertinent to mention here that the dial,
chain and design of wrist watches produced by IO for
the purpose of mixing up is similar to that of the
case property. The make of wrist watches brought by
IO is of different companies and there is no wrist
watch of make citizen. (Emphasis Supplied)"
34. On 14.10.2002 a secret information was received
by Inspector J.R.Uike PW-63, posted at PS Babai, District
Hoshangabad, MP, that accused Roshan Singh is present at
Rampur Tala near the tube well of Kamal Singh, pursuant
whereto he went there and arrested Roshan Singh at 6.10 P.M.
in the presence of two public witnesses; namely, Lalit Dubey
PW-56 and Ram Bilas PW-57, as recorded in the arrest memo
Ex.PW-63/A2.
35. On the next day i.e. 15.11.2002 the SP,
Hoshangabad, sent the information, Ex.PW-63/B, about the
arrest of Roshan Singh to the Commissioner of Police Delhi,
pursuant whereto, Inspector VS Meena, accompanied by
Inspector Ram Chander PW-20 and SI Sukaram Pal PW-39,
went to Hoshangaband, where after filing an application and
getting permission from the court at Hoshangabad, Inspector
V.S.Meena obtained the police custody of Roshan Singh and
formally arrested him at 04.00 P.M. as recorded in the arrest
memo Ex.PW-39/G. On being interrogated by Inspector
V.S.Meena PW-62, in the presence of Inspector Ram Chander
PW-20 and SI Sukaram Pal PW-39, Roshan Singh made a
disclosure statement Ex.PW-20/E, wherein he disclosed that he
hatched a conspiracy with Sharda Jain, Raj Kumar and Rajinder
to murder the deceased and that two other persons; namely,
Pushpender and Nirvikar fired shots at the deceased in
pursuance of the said conspiracy. He further disclosed that he,
along with three police officials; namely, Shri Pal Singh
Raghav, Rakesh Kumar and Satender Kumar had thrown the
body of the deceased in the canal; that one Subash who is a
resident of village Chajjupur can shed some light on the said
aspect of the matter and that he can get recovered a gold ring
and the mobile phone of the deceased as also his mobile
phone and the two pistols used for committing the murder of
the deceased.
36. On 21.11.2002, Inspector V.S.Meena PW-62, came
to know that Maruti car bearing registration no.DDU 1371
belonging to Roshan Singh is lying unclaimed at Malkhana of
PS Kharkoda, District Meerut, UP since 09.09.2002. On the
same day, Inspector V.S.Meena obtained the custody of the
said car and seized the same vide memo Ex.PW-62/N. SI Karan
Singh PW-45, from the crime team reached PS Kharkoda, on
being summoned and inspected the car in question but no
chance print could be detected thereon as recorded in the
report Ex.PW-45/A.
37. On 22.11.2002, Roshan Singh took the police party,
consisting of Inspector V.S.Meena PW-62, SI Sukaram Pal PW-
39 and SI Anil Kumar Chauhan PW-44, to Bijoli Mode, UP and
got recovered his mobile phone from the bushes and the same
was seized vide memo Ex.PW-39/O. Thereafter Roshan Singh
led the said police officials to his residence and got recovered
two country made pistols; two live cartridges and one gold
ring from a polythene bag which was kept hidden in a heap of
cattle feed, lying in a room of his house and the same were
seized vide memo Ex.PW-39/L. Inspector V.S.Meena prepared
rough site plan Ex.PW-62/N of the residence of Roshan Singh;
recording therein at point „B‟ the room where the afore-noted
articles were recovered. He also prepared the sketches of the
pistols and live cartridges recovered at the instance of Roshan
Singh, being Ex.PW-39/H, Ex.PW-39/J and Ex.PW-39/K
respectively. All the seized articles were deposited in the
Malkhana on 22.11.2002 as recorded vide entry No.1642
entered in the store room register (part I) by HC Dinesh Kumar
PW-43.
38. Thereafter Roshan Singh led the police officers and
pointed out the spots where the deceased was murdered and
body of the deceased respectively was thrown into the canal,
vide pointing out memos Ex.PW-39/H and Ex.PW-39/N
respectively. (It may be noted here that the spot which was
pointed out by accused Roshan Singh as the place of the
murder of the deceased is the same which was told by
accused Sharda Jain and Raj Kumar as the spot where the
deceased was murdered i.e. the spot was already known to
the police). (It may further be noted here that sketch of one of
the pistols recovered at the instance of accused Roshan Singh
as also the pointing out memo of the place of murder of the
deceased prepared at the instance of Roshan Singh have been
exhibited as Ex.PW-39/H i.e. two documents have been given
the same exhibit mark.) The mobile phone of the deceased
could not be found pursuant to the disclosure statement of
accused Roshan Singh.
39. In his disclosure statement, Roshan Singh had
named Subash, stating that Subhash could shed some light on
the aspect of the disposal of the dead body of the deceased,
Inspector V.S.Meena tracked Subhash PW-38, and recorded his
statement Ex.PW-38/DA. Thereafter, Inspector V.S.Meena filed
an application Ex.PW-40/J before the Court of the Metropolitan
Magistrate Delhi for recording the statement of Subash under
Section 164 Cr.P.C. Shri P.K.Jain PW-40, Metropolitan
Magistrate Delhi, recorded the statement Ex.PW-38/A dated
10.12.2002 of Subash, wherein he stated that he is an
agriculturist and resides in village Chajjupur. That on
24.08.2002 at around 06.00 PM he returned to his house after
finishing work at his fields when some children told him that a
dead body is lying near the government bungalow situated
near the canal. On hearing the same, he proceeded to the
house of Roshan Singh who was the Pradhan of his village to
apprise him of the said fact. On his way to the house of
Roshan Singh he met Roshan Singh who was driving a car and
he told him about the dead body, upon which Roshan Singh
told him that they should go to the police station and give the
said information. Thereafter he sat in the car of Roshan Singh
and while they were on their way to the police station they
met three police officers; namely Shri Pal Singh Raghav,
Rakesh Kumar and Satender Kumar to whom they gave the
information about the dead body. The three police officers sat
in the car of Roshan Singh. When the car reached near the
canal, Roshan Singh asked him to get down from the car and
told him that he, along with the three police officers would
take care of the matter upon which he got down from the car.
Roshan Singh drove the car towards the canal and he returned
to his house. Roshan Singh absconded from his house since
that day. He did not see the dead body with his own eyes. He
came to know that the said body was that of the deceased
after reading a newspaper report a few days after the dead
body of Atma Ram Gupta was discovered.
40. On 30.11.2002 Inspector V.S.Meena took the two
pistols recovered at the instance of accused Roshan Singh to
Dr.S.K.Aggarwal PW-21, for his opinion about the weapon. Vide
report Ex.PW-21/B, Dr.S.K.Aggarwal opined that the ante-
mortem injury no. (1) found on the person of the deceased
could possibly be caused by one of the said two pistols.
41. In view of what was told to Inspector V.S.Meena by
Subhash, it became apparent that Shri Pal Singh Raghav,
Rakesh Kumar and Satender Kumar became suspects
regarding the disposal of the dead body.
42. On 11.12.2002 Inspector V.S.Meena, accompanied
by SI Sukaram Pal PW-39, went to PS Vijay Nagar, Ghaziabad,
UP where he arrested Sripal Singh Raghav and Satender
Kumar at 6.00 PM as recorded in the arrest memos Ex.PW-39/T
and Ex.PW-39/U. On interrogation by Inspector V.S.Meena, in
the presence of SI Sukaram Pal PW-39, accused Sripal Singh
Raghav and Satender Kumar made disclosure statements
Ex.PW-39/P and Ex.PW-39/Q respectively, wherein they
disclosed that along with Roshan Singh and another police
officer; namely Rakesh Kumar, they threw the body of the
deceased into the canal. Both of them led Inspector V.S.Meena
to the place which had already been identified to the police as
the place where the deceased as murdered and vide pointing
out memos Ex.PW-39/V, Ex.PW-39/X, Ex.PW-39/Y and Ex.PW-
39/W accused Sripal Singh Raghav and Satender Kumar
pointed out the place where the dead body of the deceased
was lying before it was thrown into the canal and the place
where they threw the body of the deceased into the canal.
43. On the basis of secret information, Inspector
V.S.Meena accompanied by SI Anil Kumar Chauhan PW-44,
arrested accused Rakesh Kumar at a bus stop situated at B-2
Block, Keshav Puram, Delhi at 09.30 AM on 23.12.2002, as
recorded in the arrest memo Ex.PW-44/K. On being
interrogated by Inspector V.S.Meena, in the presence of SI Anil
Kumar Chauhan PW-44, accused Rakesh Kumar made a
disclosure statement Ex.PW-44/L wherein he disclosed that he
along with Roshan Singh, Sripal Singh Raghav and Satender
Kumar had thrown the body of the deceased into the canal.
Thereafter vide pointing out memo Ex.PW-44/N, accused
Rakesh Kumar pointed out the place where the dead body of
the deceased was lying before it was thrown into the canal.
44. On 13.01.2003, Inspector V.S.Meena, obtained the
blood samples of the parents of the deceased for the purposes
of DNA testing and seized the same vide memo Ex.PW-62/X1.
45. On 16.01.2003 Inspector V.S.Meena, filed an
application in the Court of Metropolitan Magistrate Delhi for
conduct of Test Identification of the ring recovered at the
instance of accused Roshan Singh. On 18.01.2003, the Test
Identification of the said ring was conducted. Sumitra Gupta
PW-18, wife of the deceased, identified the ring recovered at
the instance of Roshan Singh as that of the deceased as noted
in the record of the proceedings Ex.PW-40/M. The manner in
which the TIP of said ring was conducted, is recorded in Ex.PW-
40/M as under:-
"Today I.O. Insp V.S.Meena produced one sealed
pullanda duly sealed with the seal of V.S. On opening
of the same, one gold ring is found in match box.
The English letter AR is engraved on the top of the
ring. I.O. also produced eight other rings which
appear to be of gold. The design and size of these
rings are similar to that of case property. It is
pertinent to mention here that on none of the said
rings the English letters AR is engraved" (Emphasis
supplied)
46. In the meantime, some of the materials seized
during the course of investigation; namely, the blood samples
of the parents of the deceased, the soil/earth lifted from the
spot pointed out by accused Sharda Jain and Raj Kumar as the
place of the murder of the deceased, the clothes, artificial
teeth and viscera of the deceased, the sample of the vial used
for preserving the viscera of the deceased, the tyre of the car
of Sharda Jain, two country made pistols and cartridges were
sent to the Forensic Science Laboratory for
serological/chemical/ballistic examination.
47. Vide CFSL report Ex.P-1, it was opined that the
samples of the blood of the parents of the deceased and the
sample of the tissue of the body recovered from the canal
were subjected for DNA isolation by organic extraction method
and that the said sample of tissue belongs to the male child of
the parents of the deceased. Vide FSL reports Ex.PW-41/A and
Ex.PW-41/B it was opined that the earth/soil/mud lifted from
the place of occurrence was found to be stained with human
blood; group whereof could not be determined and that blood
could not be detected on the clothes and artificial teeth of the
deceased. Vide FSL report Ex.PW-66/A it was opined that the
mud/soil lifted from the place of occurrence and the soil/mud
found stuck on the tyre of the car of Sharda Jain were similar
in physical characteristics. Vide FSL report Ex.PW-50/A it was
opined that the pistols recovered at the instance of Roshan
Singh are of .315 bore, designed to fire a standard 8 mm/.315
bore and are in working order in their present condition and
that the cartridges recovered at the instance of Roshan Singh
are live and can be fired through a .315 bore firearm. Vide FSL
report Ex.PW-59/A it was opined that blood or any other
biological material could not be detected on the car of Roshan
Singh.
48. Armed with the aforesaid material, the prosecution
filed a charge-sheet against the accused persons. As per the
charge-sheet, the broad contours of the case set up by the
prosecution against the accused persons are that accused
Sharda Jain developed intimate relations with the deceased
due to which her husband left her. But, the deceased
developed intimate relations with one Memwati Berwala who
was also a member of the Indian National Congress and a
Municipal Councillor. When the deceased did not end his
relations with Memwati Berwala despite strong objection
raised by accused Sharda Jain, accused Sharda Jain tried to
commit suicide by consuming sulfas tablets. After the said
incident, the relations between accused Sharda Jain and the
deceased became normal and accused Sharda Jain got elected
as a Municipal Councilor due to the influence of the deceased.
However, after sometime, the deceased again developed
intimate relations with Memwati Berwala as also started
ignoring accused Sharda Jain and promoted the political career
of Memwati Berwala at the cost of the career of accused
Sharda Jain. The aforesaid conduct of the deceased enraged
accused Sharda Jain to such an extent that she decided to do
away with the deceased. Accused Sharda Jain confided in her
brother Raj Kumar who agreed to aid Sharda Jain in achieving
her illegal desire. To give effect to the illegal desire of Sharda
Jain he contacted accused Roshan Singh and his i.e. Roshan
Singh‟s driver Rajinder Singh. The four of them i.e. Sharda Jain,
Raj Kumar, Roshan Singh and Rajinder Singh met twice at the
residence of Sharda Jain, where they hatched a conspiracy to
murder the deceased. To execute the conspiracy accused
Roshan Singh contacted accused Nirvikar and Pushpender,
who agreed to kill the deceased. In pursuance of the said
conspiracy, on 24.08.2002, accused Sharda Jain made the
deceased sit in her Indica car bearing registration No.DL-3S-
AB-0016, being driven by accused Rajinder Singh, and in a
friendly manner, led him to a Dak Bangla near a Rajwaha
situated behind village Chajjupur, UP, where accused
Pushpender and Nirvikar fired shots at the deceased and
caused his death. Thereafter Sharda Jain along with Rajinder
Singh left the spot and asked the other accused persons to
dispose of the body of the deceased. Roshan Singh asked the
remaining accused persons; namely, Raj Kumar, Pushpender
and Nirvikar to disperse and told them that they would come
back to said spot in the evening to dispose of the body of the
deceased. Before dispersing from the place of the crime, the
said accused persons removed the I-cards, wrist watch and
gold ring of the deceased. However, everything did not work
out according to their plan inasmuch as Subash, who is a
resident of village Chajjupur, got knowledge about the
presence of a body at the place in question. Notwithstanding
the said obstacle, Roshan Singh, with the aid accused Sripal
Singh Raghav, Rakesh Kumar and Satender Kumar managed
to dispose of the body of the deceased by throwing the same
in the canal flowing near the place where the deceased was
murdered.
49. Charges were framed against the accused Sharda
Jain, Raj Kumar, Rajinder Singh, Roshan Singh, Pushpender
and Nirvikar under Section 120-B, Section 364 read with
Section 120-B and Section 302 read with Section 120-B IPC for
having hatched a conspiracy to abduct and murder the
deceased; abducting and murdering the deceased in
pursuance of the said conspiracy. Charges were also framed
against accused Sharda Jain, Raj Kumar, Roshan Singh, Sripal
Singh Raghav, Satender Kumar and Rakesh Kumar under
Sections 120-B and 201 read with Section 120-B IPC for having
hatched a conspiracy to cause disappearance of the evidence
by throwing the body of the deceased in the canal in
pursuance of the said conspiracy. Additionally, a charge under
Section 25 of Arms Act, 1959 was framed against accused
Roshan Singh for being in unlawful possession of a firearm. A
charge under Section 27 of Arms Act, 1959 was also framed
against accused Pushpender and Nirvikar for illegally using a
firearm.
ANALYSIS OF THE EVIDENCE LED BEFORE THE TRIAL
COURT
50. At the trial, the prosecution examined as many as
66 witnesses. We need not note the testimony of the various
police officers who took part in the investigation for they have
deposed facts regarding the respective role played by them
during investigation which have already been succinctly stated
by us in the preceding paragraphs and in respect whereof not
much submission were made during arguments in the appeals.
However, whenever necessary, to deal with the submissions
made by learned counsel for the appellants, such part of the
testimony of the relevant witness would be noted. We would
also be splitting, while noting, the testimonies of the
witnesses, whenever required pertaining to the evidence
throwing light on different facets/stages of the case of the
prosecution.
51. With a view to have clarity in the analysis of the
evidence led by the prosecution, we segregate the relevant
witnesses into 10 categories, clubbing in one category
witnesses who have thrown light on the same issue.
A Witnesses who participated in the preparation of the
necessary documents prepared by the police till the FIR was
registered:- HC Ashok Kumar PW-6, SI Shiv Raj Singh PW-55,
Const.Jitender PW-25, HC Savitri PW-27 and HC Sher Singh PW-
35.
52. HC Ashok Kumar PW-6, deposed that he recorded
DD No.31 Ex.PW-6/A at about 01.00 A. on 25.08.2002 on the
basis of the report lodged by Rajinder Pal Gupta PW-9,
regarding the deceased being missing. It may be noted here
that the testimony of the said witness was not controverted by
the defence. SI Shiv Raj Singh PW-55, deposed that the
endorsement Ex.PW-55/C was recorded by him at 12.05 PM on
25.08.2002. No suggestion was given to the said witness in his
cross-examination regarding the recording of the said
endorsement. Jitender PW-25, deposed having handed over
the endorsement Ex.PW-55/C to the duty officer at Police
Station Keshav Puram. HC Savitri PW-27, deposed having
registered FIR Ex.PW-27/A at 12.20 PM on 25.08.2002. HC Sher
Singh PW-35, deposed having delivered copies of the FIR to the
Ilaqa Magistrate and senior police officers.
B Witnesses to prove last seen, suspicious conduct of
Sharda Jain and factum of hatching of conspiracy by the
accused persons:- Sumitra Gupta PW-18, Prabhu Yadav PW-17,
Manish PW-14, Om Prakash Chauhan PW-11 and Rajinder Pal
Gupta PW-9.
53. Sumitra Gupta PW-18, the wife of the deceased,
deposed that on 24.08.2002, at about 10.15 AM the deceased
left his residence in his Indica car bearing registration No.DL
6SA 0025, which was driven by his driver Prabhu Yadav. Before
leaving the house, the deceased told her that he would first go
to the house of Sharda Jain and thereafter would proceed to a
rally along with Sharda Jain. She deposed that while leaving
the house, the deceased was wearing a watch in his right hand
and a gold ring on which letters 'AR' were engraved and was
also carrying a mobile phone, some cards and papers. After
sometime Prabhu Yadav returned home and told her that he
had dropped the deceased at the residence of Sharda Jain and
that the deceased had told him to return to his house as he
would be going to the rally in the car of Sharda Jain. When the
deceased did not return till evening, she tried to contact him
on his mobile phone having number 9810166101, but the
same was switched off. Thereafter, she contacted her children
and the younger brothers of the deceased and apprised them
that the deceased was missing. She made a telephonic call to
Sharda Jain to enquire about the whereabouts of the deceased,
in response whereto, Sharda Jain told her that the deceased
did not accompany her to the rally in question. After
sometime, her son Amit Gupta called Sharda Jain, who then
informed that the deceased did accompany her to the rally,
but stated that the deceased got down from her car near ISBT
when they were returning from the rally.
54. On being cross-examined about the relations
between the deceased and herself, Sumitra Gupta stated
(Quote): „My husband was honest and loyal to people and was
faithful to me.‟ On being questioned about the belongings of
the deceased, the witness stated (Quote): „After lodging the
missing report of my husband with the police, the police had
not taken any belongings of Atma Ram from my house. It is
wrong to suggest that police official Meena had come to my
house and had taken away the ring of my husband.....It is
wrong to suggest that the ring Ex.PW-18/1 was with me till
17.12.02. It is wrong to suggest that on 18.12.02, I had given
the ring, Ex.PW-18/1 to Insp.Meena'. It may be noted here that
no specific suggestion was given to Sumitra Gupta that the
Investigating Officer collected the wrist watch, the ring or the
I-cards of the deceased from her.
55. Prabhu Yadav PW-17, the driver of the deceased,
deposed that he had dropped the deceased at the residence of
Sharda Jain in the morning of 24.08.2002. On reaching the
residence of Sharda Jain, the deceased told him to take back
the car to his house and meet him in the evening. He had seen
the deceased, Sharda Jain and another person whom he
cannot identify, sitting in the car of Sharda Jain, being driven
by Om Prakash Chauhan, the driver of Sharda Jain. On
returning the residence of the deceased, he handed over the
keys of the car of the deceased to the wife of the deceased
and told her that accompanied by Sharda Jain the deceased
had gone to attend the rally in the car of Sharda Jain.
Thereafter he left for his house. On the same day, at about
05.00 PM he again returned to the residence of the deceased
but the deceased was not present there. He remained at the
residence of the deceased till about 7.00 PM - 8.00 PM but the
deceased did not return.
56. On being cross-examined about the instructions
given to him by the deceased on 24.08.2002 at the time when
he dropped the deceased at the residence of Sharda Jain,
Prabhu Yadav stated (Quote): 'When Atma Ram Gupta left for
rally in the car of Sharda Jain he had told me to come to his
house at 05.00 PM and he had not told me that I should come
to Kamal Clinic of Dr.Mahender Pal Gupta'. It may be noted
here that save and except asking aforesaid question, the
testimony of the said witness was not controverted by the
defence.
57. Om Parkash Chauhan PW-11, the driver of Sharda
Jain, was the star witness of the prosecution inasmuch as he
was examined to prove that the deceased was last seen in the
company of accused Sharda Jain and Rajinder Singh; to prove
the exchange of money between accused Roshan Singh and
Sharda Jain under suspicious circumstances; the visits of
accused Raj Kumar, Roshan Singh and Rajinder Singh at the
residence of accused Sharda Jain and the suspicious conduct
of Sharda Jain on 24.08.2002.
58. Om Parkash Chauhan deposed that he and accused
Rajinder Singh were present in the house of Sharda Jain in the
morning of 24.08.2002. The deceased came to the house of
Sharda Jain in his Indica car, being driven by his driver Prabhu
Yadav. Thereafter, the deceased sent back his car with his
driver and occupied a seat in the car of Sharda Jain along with
Sharda Jain and Rajinder. Thereafter, he drove the said car to
Firozshah Kotla ground where a rally was organized by the
Congress Party. On reaching there, the deceased and Sharda
Jain went to attend the rally, while he and Rajinder remained
seated in the car. Within ten-fifteen minutes of going to the
rally, the deceased and Sharda Jain came back to the car and
Sharda Jain instructed him to go towards Ghaziabad. When the
car reached near the red light at Hanuman Mandir, Ring Road,
Sharda Jain asked him to stop the car and leave for his house
as he was not feeling well, upon which he enquired from
Sharda Jain as to who would drive the car in his absence, to
which, she replied that Rajinder would drive the car.
Thereafter, he got down and saw accused Rajinder drive the
car. That in the intervening night of 24/25.08.2002 a fat man
came to his house and told him that Sharda Jain is calling him,
whereupon he went downstairs but did not find Sharda Jain
present there. The said fat man insisted that he should
immediately go and meet Sharda Jain at her residence to
which he replied that he would meet her in the morning.
Sometime thereafter, he received a telephonic call from the
driver of the deceased i.e. Prabhu Yadav who made enquiries
about the whereabouts of the deceased and he apprised him
of the above facts. He went to the residence of the deceased
and apprised the family members of the deceased with the
above facts.
59. On being cross-examined by the learned APP since
Om Prakash deviated from his statement recorded under
Setion 161 Cr.P.C., Om Parkash stated that eight-ten days prior
to 24.08.2002, Acused Raj Kumar along with two other persons
whom he cannot identify, had come to the residence of Sharda
Jain. He denied having listened to any talks between Sharda
Jain, Raj Kumar and said two persons regarding payment in
sum of Rs.1 lakh or that he had given any such statement to
the police. He stated that on 22.08.2002 Raj Kumar along with
said two persons again came to the residence of Sharda Jain.
On being confronted with his statement Ex.PW-11/DA wherein
it was recorded that accused Sharda Jain had come to his
residence and threatened him in the intervening night of
24/25.08.2002, he stated (Quote): 'It is incorrect to suggest
that in the night at about 12:00 of 24.8.2002 Sharda Jain had
also come to my house or that she told me that I should not
tell to anybody that Atma Ram Gupta was also with her on that
day otherwise consequences would not be good nor I so stated
to the police. Confronted with portion C to C of mark PW-11/A
where it is so recorded'.
60. On being cross-examined by the defence about the
visit of accused Raj Kumar to the residence of accused Sharda
Jain on 22.08.2002, he stated that he had not seen any person
at the residence of accused Sharda Jain on 22.08.2002 as he
was on leave on said day and therefore did not go to the
residence of accused Sharda Jain. On being confronted with
the omission to mention the fact in the statement Ex.PW-
11/DA that accused Sharda Jain had told him on 24.08.2002
that they had to go towards Ghaziabad, the witness stated
(Quote): 'Madam Sharda Jain told me that they had to go
towards Ghazibad. Confronted with statement Ex.PW-11/DA
where it is not so recorded. It is incorrect to suggest that I did
not state to the police because Madam Sharda Jain had not
told me that they had to go towards Ghaziabad.' The same
was the reply of the witness when confronted with the
omission in the statement Ex.PW-11/DA to mention the fact
that the driver of the deceased made a telephonic call and that
he visited the residence of the deceased on 24.08.2002. It
may be noted here that Om Prakash stated that the police had
kept him in police station for two days after his visit to the
police station on the intervening night of 24/25.08.2002. It is
further noted that neither any question was put, nor any
suggestion was given to the witness in his cross-examination,
regarding the factum of visit of the fatty man to his residence
on 24.08.2002.
61. Shanti PW-10, the mother of the driver of Sharda
Jain i.e. the mother of Om Prakash PW-11, deposed that her
son was employed as a driver with Sharda Jain and that she
does not know Sharda Jain. One night Sharda Jain had come to
her residence and sent a boy inside her residence to call her
son, whereupon she asked her son to go and meet Sharda Jain.
No talks took place between Sharda Jain and her son in her
presence.
62. On being cross-examined by the learned APP as she
was testifying at variance with her statement recorded by the
police pertaining to the afore-noted testimony, she stated
(Quote): „It is incorrect to suggest that I know Sharda Jain. I
cannot say if it was 24.08.2002 but however, it was about 12
in the night when one boy came to me and asked that Om
Parkash had been called by Sharda Jain‟. It is relevant to note
that the testimony of the witness was not controverted by the
defence.
63. Manish PW-14, the son of Mahender Pal Gupta PW-8
a friend of the deceased, deposed that on 24.08.2002 he
attended a rally at Firozshah Kotla ground. He had last seen
the deceased in the rally at about 12 noon. On the way after
returning from the rally, his car was moving behind a car in
which the deceased along with Sharda Jain and accused
Rajinder Singh were traveling and that the said car was being
driven by the driver of Sharda Jain. He saw that the said car
stopped near the red light at Nigam Bodh Ghat, whereupon the
driver of the car got down and started walking towards ISBT.
He made enquiries from the deceased, who told him that
driver of Sharda Jain has left as he was not feeling well and
that accused Rajinder would drive the car in the absence of
the driver of Sharda Jain. Thereafter, accused Rajinder sat on
the driver‟s seat and drove the car towards ISBT. That he first
identified accused Rajinder on 2.10.2002 at PS Keshav Puram
when he had gone there to lodge a report about his mobile
phone being missing.
64. On being cross-examined about his mobile phone
being missing, Manish stated (Quote): 'I had lost my mobile
phone and therefore, I had gone to the PS Keshav Puram on
2.10.2002 to make report about it. I did not so tell to the police
in my statement under Sec.161 Cr.P.C. The report about the
missing of the mobile phone was not recorded by the police,
rather I was given suggestion first I should search it out in my
house. The report about the mobile has not been recorded in
the PS till date because I found my mobile in my car as it was
found on the next day.......I do not remember the number of
my mobile which had misplaced when I had gone to the PS to
make the report on 25.8.2002. It is wrong to suggest that I do
not recollect the number of my mobile phone because I had
not gone to the PS on 2.10.2002.
65. Rajinder Pal Gupta PW-9, the younger brother of the
deceased, deposed that in the morning of 24.08.2002 the
deceased left his house in his Indica car being driven by his
driver Prabhu Yadav to go to the house of Sharda Jain. The
deceased was wearing a wrist watch with a gold chain, one
gold ring and off-white coloured Safari suit and was also
carrying a mobile phone having number 9810166101 at the
time when he left the house. On reaching the house of Sharda
Jain, the deceased asked his driver to leave from there and
directed him to meet him at Kamal Clinic in the evening, but
the deceased did not come to the said clinic. Sumitra Gupta,
the wife of the deceased, informed him that she had made a
telephonic call to Sharda Jain, who told her that she is not
aware about the whereabouts of the deceased. Prabhu Yadav,
the driver of the deceased, also confirmed to him that he had
dropped the deceased at the house of Sharda Jain in the
morning. On making enquiries from Om Prakash Chauhan, the
driver of Sharda Jain, Om Prakash Chauhan informed him that
he had taken the deceased, Sharda Jain and another person to
the rally in the car of Sharda Jain; the deceased and Sharda
Jain returned to the said car after attending the rally and that
he left the car near red light at Hanuman Mandir on his way,
after returning from the rally, whereupon the third person
sitting in the car started driving the same. Thereafter Sumitra
Gupta again contacted Sharda Jain, who then informed her
that the deceased went with her in her car to the rally but got
down from her car near ISBT when they were returning from
the rally as he had met some known person there. Amit Gupta,
the son of the deceased, also made a telephonic call to Sharda
Jain in his presence wherein Sharda Jain told him that the third
person sitting in the car was her brother-in-law Sunil Jain,
which fact was found to be false by the police.
66. On being cross-examined about his presence at the
residence of the deceased on 24.08.2002 at the time when the
deceased left the residence of Sharda Jain, Rajinder Pal Gupta
stated (Quote): 'On 24.8.2002 Atma Ram Gupta had left the
house to attend the Congress Rally in my presence. Volt : I
have my office in Tri Nagar where I go daily. I usually used to
go to the house of my brother Atma Ram Gupta. If the police
had asked me if Atma Ram Gupta left his house in my
presence on 24.8.2002 then I must have so stated. At this
stage the defence counsel has asked the witness to go through
his Ex.PW9/C and then answer if Atma Ram Gupta had left the
house in his presence. The witness has stated that it is not so
written in Ex.PW9/C.'
C Witnesses to prove the deposit of the wrist watch and the
gold ring of the deceased recovered at the instance of accused
Raj Kumar and Roshan Singh in the Malkhana :- Inspector
V.S.Meena PW-62 and HC Dinesh Kumar PW-43.
67. Inspector V.S.Meena PW-62, deposed that the wrist
watch and the gold ring of the deceased recovered at the
instance of accused Raj Kumar and Roshan Singh respectively
were deposited by him in the Malkhana on 28.08.2002 and
22.11.2002 respectively. HC Dinesh Kumar PW-43, also
deposed that the said wrist watch and the gold ring were
deposited in the Malkhana on 28.08.2002 and 22.11.2002 and
that he had made entries in the Malkhana Register in the said
regard. It may be noted here that no suggestion to the
contrary was given to the said witnesses.
D Witnesses to prove the identification of the body of the
deceased: - Mahender Pal Gupta PW-8, Rajinder Pal Gupta PW-
9, Ved Prakash Gupta PW-15, Rajpal Gupta PW-16, Amrit Lal
Singhal PW-37 and Zaheer Ahmad PW-36.
68. Mahender Pal Gupta PW-8, a friend of the deceased,
deposed that on 31.08.2002 along with the relatives of the
deceased he had gone to a canal near village Gulawati where
he saw the body of the deceased lying on the bank of said
canal. The body of the deceased was swollen and was clothed
in an off-white colored safari suit. A label of „Lovely Tailors‟
was stitched on the shirt of the safari suit. The deceased had 4
artificial teeth and that the same were not found in the jaw
when the body was recovered.
69. On being confronted with the photographs Ex.DX
and Ex.DX-1, Mahinder Pal Gupta stated (Quote): „The
photographs of the dead body were taken on 31.08.2002.
When I saw the body, then the wrist watch was found wearing
on the left hand of Atma Ram Gupta and it also reflects in the
photographs Ex.DX and DX-1.‟ (It may be noted here that the
said statement of the witness strikes a discordant note with
the case of the prosecution for the reason the claim of the
prosecution is that the wrist watch of the deceased was
removed by accused Raj Kumar after the death of the
deceased and that the same was recovered at the instance of
accused Raj Kumar).
70. Rajinder Pal Gupta PW-9, Ved Prakash Gupta PW-
15, Rajpal Gupta PW-16, the younger brothers of the deceased
and Amrit Lal Singhal PW-37, a friend of the deceased,
deposed that they had gone to a canal near village Gulawati
where they found the body of the deceased lying on the bank
of said canal. Additionally, Rajinder Pal Gupta deposed that an
off-white colored safari suit was found on the body and that
the artificial teeth were found in the jaw. A label of „Lovely
Tailors‟ was found stitched on the shirt of the said safari suit.
(It may be noted here that no question regarding the presence
of a wrist watch on the body of the deceased was put to the
said witnesses in their cross-examinations).
71. Zaheer Ahmad PW-36, deposed that he runs a
tailoring shop in the name and style of „Lovely Tailors‟ at Tri
Nagar, Delhi. The deceased used to get his clothes stitched by
him and that he stitches his label „Lovely‟ on the clothes
stitched by him.
E Witnesses to prove the post-mortem report of the
deceased:- Dr.S.K.Aggarwal PW-21.
72. Dr.S.K.Aggarwal PW-21, deposed that he conducted
the post-mortem of the deceased on 31.08.2002 and that the
post-mortem report Ex.PW-21/A as also the report Ex.P-W21/B
regarding the opinion on the weapon of offence were prepared
by him.
F Witnesses to prove the reports submitted by the Forensic
Science Laboratoy:- A.K.Srivastava PW-41, Sri Narain PW-42,
K.C.Varsheny PW-50, Dr.Rajinder Kumar PW-59 and
Dr.Swaroop Vedanand PW-66.
73. A.K.Srivastava PW-41, deposed that the FSL reports
Ex.PW-41/A and Ex.PW-41/B were prepared by him. Sri Narain
PW-42, deposed that the FSL report dated 29.01.2003 was
prepared by him. It is noted here that the two witnesses were
not subjected to any cross-examination on behalf of the
accused persons.
74. K.C.Varshney PW-50, deposed that the FSL report
Ex.PW-50/A was prepared by him. It may be noted here that
the witness denied the suggestions that the two pistols
examined by him were not in a working condition and that he
did not examine them.
75. Dr.Swaroop Vedanand PW-66, deposed that FSL
report Ex.PW-66/A was prepared by him. He further deposed
that he holds a degree in the Masters of Science in Physics,
M.Phil and Ph.D. and that he has been working as Scientific
Assistant and Scientific Officer in FSL since 1993. It may be
relevant to note that as per the report Ex.PW-66/A the physical
characteristics of the soil scrapped from the right rear tyre of
the Indica car of accused Sharda Jain were the same as that of
the soil lifted from the spot pointed out by accused Sharda Jain
and her brother Raj Kumar as the place where the deceased
was murdered.
76. On being questioned about his credentials during
cross-examination, Dr.Swaroop Vedaanand stated: „It is correct
that I have not studied any course in Geology. I have not
studied any degree or diploma in structural geology or physical
geology. However, structural physics forms part of a degree
course in physics.‟ On being questioned about the
methodology adopted by him for carrying out the examination
of the soil, he stated: „It is correct that I did not carry out any
Chemical examination of the soil supplied to me in the present
matter so as to ascertain its various components or as to its
salinity. It is correct that I had not mentioned the volume of
different components of the soil sample examined by me. The
elevation of the place from where the alleged samples were
lifted from the sea level were not supplied to the
laboratory..........Witness further states that on account of
difference in quantity of samples etc it is difficult to give an
opinion of identical physical character-sticks or for that matter
some physical character-sticks.‟
G Witnesses to prove the ownership of the articles
recovered at the instance of the accused persons:- Subash
Chander PW-2, Yadukuleshwar Dass PW-5, Rajinder Pal Gupta
PW-9, Sumitra Gupta PW-18, P.K. Jain PW-40 and Baldev Kumar
PW-52.
77. Subash Chander PW-2, President of All India Crime
Prevention Organization, deposed that the deceased enrolled
himself as a member of All India Crime Prevention
Organization on 08.03.1995 and that the I-card Ex.PW-2/A
recovered at the instance of accused Pushpender was issued
to the deceased on the same day. He further deposed that the
membership of the deceased expired on 31.12.1995.
Yadukuleshwar Dass PW-5, Vice-President of International
Society for Krishna Consciousness (ISCKON), deposed that the
deceased was a member of ISCKON and that the I-card Ex.PW-
5/A recovered at the instance of accused Nirvikar was issued
to the deceased. It may be noted here that the testimony of
the said two witnesses was not controverted by the defence.
78. Rajinder Pal Gupta PW-9 and Sumitra Gupta PW-18,
the younger brother and the wife respectively of the deceased,
deposed that they had identified the wrist watch Ex.P-4 and
the ring Ex.PW-18/1 of the deceased in a Test Identification
proceedings. On being questioned about the wrist watch in
question, Rajinder Pal Gupta stated (Quote): 'Atma Ram Gupta
had gone to Singapur perhaps in the year 1996 and from
where he had brought the wrist watch Ex. P-4 but I was not
present when he purchased the watch.....It is correct that there
is no special mark of identification on the wrist watch of Atma
Ram Gupta.......Atma Ram Gupta had other wrist watches also
but however after he had brought the wrist watch Ex.P-4 from
Singapur, he used to wear only this watch.'
79. P.K.Jain PW-40, Metropolitan Magistrate Delhi
deposed that he conducted the TIP of the wrist watch and the
gold ring recovered at the instance of accused Raj Kumar and
Roshan Singh and that the said wrist watch and ring were
identified as belonging to the deceased by Rajinder Pal Gupta
and Sumitra Gupta respectively. He also deposed having
prepared the record in respect of the said TIP proceedings i.e.
Ex.PW-40/C and Ex.PW-40/G.
80. Baldev Kumar PW-52, deposed that he runs a
jewellery shop under the name and style of Gogna Jewelers at
Narang Colony, Tri Nagar. That on 23.10.2001 the deceased
purchased a gold ring from him on which the letters „AR‟ were
engraved and that he issued a bill Ex.PW-52/A to the deceased
in said regard. The ring Ex.PW-18/1 recovered at the instance
of accused Roshan Singh is the same ring which was
purchased by the deceased from him.
H Witnesses to prove the record relating to the mobile
phone of accused Sharda Jain :- Gulshan Arora PW-34, Anu
Anand PW-65 and Inspector V.S.Meena PW-62.
81. Gulshan Arora PW-34, an employee of cellular
company HUTCH, produced the record pertaining to mobile
number 9811508688. On basis of the said record, he deposed
that the said number is registered in the name of Sharda Jain.
He further deposed that the call record Ex.PW-34/A pertaining
to the said number is for the period 24.8.2002 to 27.8.2002.
82. Anu Anand PW-65, an employee of the cellular
company HUTCH, produced the Cell ID Chart Ex.PW-65/A,
which record indicates the locations of the various towers
installed by cellular company HUTCH in Delhi and NCR and
proved the same.
83. A cumulative reading of the documents Ex.PW-34/A
and Ex.PW-65/A shows that on 24.08.2002 incoming calls were
received on the number 9811508688 at Shalimar Bagh at 9.09
A.M., Sarai Rohilla at 11.42 A.M., Turkman Gate at 12.05 P.M.
and Raj Nagar (Ghaziabad) at 4.18 P.M., Mohan Nagar
(Ghaziabad) at 4.32 P.M., Dilshad Garden at 4.52 P.M. and Mori
Gate at 5.11 P.M.; outgoing calls were made from the number
9811508688 at Raj Nagar (Ghaziabad) at 4.21 P.M., Zaina
Tower, Raj Nagar (Ghaziabad) at 4.27 P.M., Navyug Market
(Ghaziabad) at 4.30 P.M. and Ashok Vihar at 5.31 P.M.
84. Inspector V.S.Meena PW-62, deposed that he
obtained the call record Ex.PW-62/A of the mobile number
9811508688 pertaining to the period 01.06.2002 to
26.08.2002 during the course of the investigation of the
present case. He further deposed that on the basis of the said
record he prepared a chart, Ex.PW-62/A1 which shows the
movement of the mobile phone No.9811508688 on 24.8.2002.
85. At this juncture, it may be noted that the call details
pertaining to the mobile No.9811508688 for the date
24.08.2002 contained in the call records Ex.PW-34/A and
Ex.PW-62/A are exactly the same.
I Witnesses to prove the motive of Sharda Jain to murder
the deceased:- Mahender Pal Gupta PW-8, Captain Dr.Satish
Chand Rajput PW-3, Const.Satbir Singh PW-7, ASI Baljeet Singh
PW-19, Dr.Sunil Markan PW-24, HC Bhagirath PW-28 and Tariq
Nasir PW-58.
86. Mahender Pal Gupta PW-8, a friend of the deceased,
deposed that he runs a medical clinic at Keshav Puram, Delhi
and that Sharda Jain used to visit his clinic along with the
deceased. The deceased provided help to Sharda Jain when
she contested elections for the post of Municipal Councilor and
that Sharda Jain was having her office at a premises situated
at Keshav Puram, which premises were provided by him to
Sharda Jain at the request of the deceased. After Sharda Jain
was elected as councilor, she once came to his clinic and
expressed her displeasure over the fact that despite the fact
that she is the Chairman of the Education Committee, the
deceased made Memwati Barwala, who was also a municipal
councilor, a chief guest at a function organized at a school,
instead of her. She further told him that she liked the
deceased and because of said liking, she has left her husband.
Sharda Jain also told him that the deceased was developing
intimate relations with Memwati Barwala and that he should
advise the deceased to discontinue his relations with Memwati
Berwala. Sharda Jain told him that on one occasion she tried to
commit suicide by consuming sulfas tablets on account of her
liking for the deceased. She told him that she consumed sulfas
tablets because the deceased started liking Memati Berwala.
Sharda Jain asked him to advise the deceased to mend his
ways, else the consequences would not be good. After her
talks with Sharda Jain, he talked to the deceased about his
talks with Sharda Jain, but the deceased did not pay any heed
to his advice.
87. On being cross-examined about his talks with
Sharda Jain, Mahender Pal Gupta stated (Quote): 'It is also
correct that because of my such relations with Atma Ram
Gupta, accused Sharda Jain made complaint to me against
Atma Ram Gupta. It is correct that accused Sharda Jain had
told me that Atma Ram Gupta had developed physical
relations with Mem Wati Berwala and such relations was also
with her and that she did not like such relations of Atma Ram
with Mem Wati Berwala....I do not recollect if Sharda Jain told
me that when Atma Ram Gupta, did not act on her advice to
have no physical relations with Mem Wati Berwala and
therefore, she had consumed Shalfas tablet. The attention of
the witness has been drawn towards the portion A to A of his
statement under Section 161 Cr.P.C. dt. 28.08.2002 mark
PW8/C where it is so recorded. But the witness states that he
does not recollect. Sharda Jain told me that Atma Ram Gupta
was bent upon to spoil her political career and was taking
steps to develop political career of Memwati Berwala, and that
for that she could go to any extent....... The elections to
Municipal Corporation of Delhi were held in Feb. 2002. No
election office was opened in premises A-1 Keshav Puram
before the said elections of Feb. 2002. I stated to the police
that Sharda Jain told me that because of her said relations with
Atma Ram Gupta, she left her husband. (confronted with
statement mark PW8/C, now exhibited as Ex.PW8/DA where it
is no recorded) I do not recollect the date but it was month of
July 2002 when Sharda Jain told me the facts that I have
deposed today I did not tell police that those facts were told
to me by Sharda Jain in the month of July 2002.‟
88. Dr.Satish Chand Rajput PW-3, deposed that he runs
a dental clinic at Vivek Vihar, Delhi. He deposed that the
deceased visited his clinic on four dates, namely, 13/20/21/23
August 2002. On 30.07.2002 the deceased visited his clinic
after the visiting hours. The deceased was accompanied by
Sharda Jain in some of the visits. On 20.08.2002 he put an
artificial denture from upper first canine to upper right canine
in the jaw of the deceased. During one of the aforesaid visits,
Sharda Jain told him that she would make payment for the
treatment rendered by him to the deceased. That the
photostat copies of the record of the vist and treatment given
to Shri Atma Ram Gupta on 30.7.2002, 13.8.2002, 20.8.2002,
21.8.2002 and 23.8.2002 are Ex.PW-3/A to Ex.PW-3/E. (It be
noted here that the entries pertaining to the visits of the
deceased are in lead pencil in the original register which had
been perused by us during arguments in the appeal. All other
entries pertaining to the patients of PW-3 are in ink. It may
further be noted that the pair of moulded POP denture set with
name of Dr.S.C.Rajput engraved thereon recovered from the
car of Sharda Jain on 27.8.2002, seizure whereof has been
recorded in the memo Ex.PW-44/C has not been put to the
witness for purposes of identification.)
89. On being cross-examined about the entries
pertaining to the visits of the deceased at his clinic, Dr.Satish
Chand Rajput stated (Quote): 'The entries Ex.PW-3/A to E are
not in my hand, rather the same are in the hand-writing of my
assistant. The entry register starts from 1.4.2002 to 29.7.2002
are in pen ink. The entries of 30.7.2002 is written in pencil. In
the register, on 13.8.02, the only entry is in regard to the visit
of Atma Ram Gupta and Sharda Jain and the entry is in pencil.
It is correct that on 20.8.02 there are five entries in my
register and out of them all are in pen except the entry of
Atma Ram Gupta, which is in pencil. Similarly, there are four
entries on 21.8.02 and the first three are written in pen but the
last entry of Atma Ram Gupta is written in pencil. Similarly on
23.8.02, there are three entries in my register and out of them
first two are written in pen and the third of Atma Ram is
written in pencil. It is wrong to suggest that the writer of the
entries in pen and pencil are different.‟
90. On being questioned about the factum of
overwriting in the entries pertaining to the visits of the
deceased, Dr.Satish Chand Rajput stated (Quote): 'It is correct
that there is overwriting of the figure "4" of the date 23.8.02 in
the register. The figure "4" has been written over the figure
"3".
91. It is also worthwhile to note that suggestions were
given to the witness that the deceased visited his clinic on
24/25/26 August 2002, which suggestions have been denied
by the witness.
92. Const.Satbir Singh PW-7, deposed that on
25.10.2002 (should read 25.10.2000) he received an
information from two different sources that Sharda Jain has
consumed some tablets and that she has been admitted in the
hospital, based whereon, he recorded DD Entries Ex.PW-7/A
and Ex.PW-7/B. (It may be noted here that a perusal of the
aforesaid entries shows that the same have been recorded on
the intervening night of 24/25.10.2000 therefore it is clear that
either the witness has inadvertently deposed regarding the
date in question or that there has been a typographical error
at the time of the recording of the evidence).
93. ASI Baljeet Singh PW-19, deposed that he
conducted investigation pertaining to the incident dated
25.10.2000 of consumption of sulfas tablets by Sharda Jain and
that he prepared two DD entries Ex.PW-19/A and Ex.PW-19/B
in said regard. It may be noted here that DD entry Ex.PW-19/B
records that Sharda Jain gave a statement to the police to the
effect that she inadvertently consumed sulfas tablets for the
reason she was suffering from an illness as also was tense on
account of the fact that her husband left for Madras but did not
return home in spite of considerable time lapsing.
94. Dr.Sunil Marken PW-24, deposed that on
25.10.2000, Sharda Jain was admitted at Maharaja Agarsen
Hospital as she had consumed sulfas tablets and that he
prepared the MLC Ex.PW-24/A pertaining to Sharda Jain in said
regard.
95. HC Bhagirath PW-28, deposed that on 27.03.2001
Sharda Jain visited police post Shanti Nagar and lodged a
report that her husband was missing, based whereon, he
recorded DD Entry Ex.PW-28/A. It may be noted here that DD
entry Ex.PW-28/A records that Sharda Jain informed the police
that 6-7 months ago, her husband Ishwar Jain left for Madras
and that he did not return home even up till 27.03.2001. That
she has no knowledge about the whereabouts of her husband.
96. Tariq Nasir PW-58, Senior Correspondent, Rashtriya
Sahara, deposed that the news item with the photograph
Ex.PW-58/A was published in the Delhi edition of Rashtriya
Sahara on 22.8.2002. We may note that the news item
pertains to a function of a park being inaugurated and
Memwati Berwala present at the function and her announcing
that she would ensure that Rohini becomes garbage and
corruption free area. The photograph shows Atma Ram Gupta
i.e. the deceased standing next to Memwati Berwala.
J Residual Witnesses :- P.S.Chauhan PW-1, Mahender Pal
Gupta PW-8, Ram Kumar PW-22, Ravinder Singh PW-23, Jai
Chand PW-26, Subash PW-38, SI Kalicharan PW-53 and
Dr.Prabhat Chaurasia PW-64.
97. Subash PW-38, deposed the facts recorded in his
statement Ex.PW-38/A under Section 164 Cr.P.C., contents
whereof have already been noted by us in para 41 above.
98. On being cross-examined about the factum of his
inimical relations with accused Roshan Singh, Subhash
admitted (Quote): 'It is correct that my father Kishan Singh
once contested against accused Roshan Singh for the post of
village pardhan and in which my father lost.......It is correct
that after Roshan Singh had won the election one complaint
was lodged against him regarding misappropriation of village
funds. Voltd. I was one of the signatory to the said complaint
alongwith other villagers.‟ On being cross-examined about his
knowledge of the identity of the dead body of the deceased he
stated (Quote): 'I do not remember whether I stated in my
statement to the IO that after about three days I came to know
from news papers that the said dead body belogned to Atma
Ram (confronted with statement EXPW 38/DA where the fact
that "after three days from the news papers I came to know" is
not mentioned).....Police as per my knowledge came to our
village either on the third or fourth day of the incident. On that
day the police did not meet me. It is correct that my statement
was recorded by IO after about 3 months. During the said
period of 3 months I myself did not go to any police official to
inform about the above incident.‟
99. Mahender Pal Gupta PW-8, a friend of the deceased,
deposed that on 28.08.2002, while he was sitting at his clinic,
he saw a news item on TV, regarding the deceased being
missing. He further learnt from the news item that the police,
along with accused Sharda Jain, Raj Kumar and Raju had gone
to village Chajjupur in connection with the present case. On
reaching the rajwaha situated at village Chajjupur, he saw that
accused Sharda Jain, Raj Kumar, Raju and Roshan Singh were
present there. He further deposed that the police was making
inquiry from accused Roshan Singh and that he does not
recollect whether other accused persons; namely, Sharda Jain,
Raj Kumar and Raju took part in the investigation. He stated
that he appended his signatures on certain papers prepared in
connection with the inquiries made from accused Roshan
Singh as also signed the pointing out memos Ex.PW-8/A and
Ex.PW-8/B of accused Sharda Jain and Raj Kumar. He identified
accused Raj Kumar, Rajinder and Roshan Singh as the persons
who were present at village Chajjupur on 28.08.2002. He also
deposed that accused Rajinder is Raju.
100. On being cross-examined about the presence of
accused persons at village Chajjupur on 28.08.2002, Mahender
Pal GUpta stated (Quote): 'It is correct that on 28.8.2002 from
the Media report, I had come to know that the police had gone
to village Chajjupur along with accused Sharda Jain and Raj
Kumar @ Raju and that I had not come to know that third
person had also accompanied the police......I had stated before
the police that on 28.8.2002 when I reached to village
Chajjupur then accused Roshan Singh was also present there
and the police was making inquiry from him (confronted with
statement mark PW8/C where it is not so recorded) It is correct
that no person by the name of Roshan Singh met me in village
Chajupur when I had gone there on 28.8.02.It is correct that
accused Sharda Jain and Raj Kumar @ Raju was speaking
about Roshan Singh when I visited village Chajupur.......I had
seen accused Rajinder as I identified in the court today, in the
police station at the time of my visit after 15/20 days of
31.8.2002'.
101. P.S.Chauhan PW-1, Head Clerk, Motor Licensing
Office, Delhi, deposed that Indica car bearing registration
No.DL 3S AB 0016 is registered in the name of Sharda Jain. The
witness was not cross-examined by the defence and thus his
testimony has gone unchallenged.
102. Ram Kumar PW-22, Ravinder Singh PW-23 and Jai
Chand PW-26 deposed that they saw the body of the deceased
lying in the canal in the morning of 31.08.2002. Additionally,
Ravinder Singh PW-23 and Jai Chand PW-26 deposed having
witnessed the investigation conducted by the police at the
time of the recovery of the body of the deceased.
103. SI Kalicharan PW-53, deposed that Maruti car
bearing registration No.DDU 1371 was deposited in the
Malkhana of PS Kharkoda on 09.09.2002 and that the custody
of the same was handed over to Inspector V.S.Meena on
21.11.2002. Dr.Prabhat Chaurasia PW-64, deposed that he sold
Maruti car bearing registration No.DDU 1371 to Roshan Singh
on 27.11.2001. It may be noted here that the said witnesses
were not cross-examined by the defence and thus their
testimonies have gone unchallenged.
104. Inspector V.S.Meena PW-62 deposed facts
pertaining to the investigation conducted by him. He deposed
that he prepared the various seizure memos and that he
seized the exhibits recorded in the seizure memos and
deposited the same in the malkhana. He deposed having sent
various exhibits for forensic opinion and the reports received.
Since, while noting the case of the prosecution with reference
to the contemporaneous investigation allegedly conducted,
where role of Inspector V.S.Meena has been extensively noted,
we are not noting his testimony which is fairly lengthy, but
clarify that would be noting such parts thereof as are relevant
to be noted while dealing with the submissions made during
arguments in the appeals.
105. In the backdrop of the aforesaid evidence led by the
prosecution, the accused were examined under Section 313
Cr.P.C.
106. In her examination under Section 313 Cr.P.C.,
accused Sharda Jain stated that she is innocent and denied
everything save and except admitted that she and Atma Ram
Gupta in the company of accused Rajinder left her residence
on 24.8.2002 to attend a Congress rally. She also admitted
that after the rally Atma Ram Gupta left in her car but stated
that he got down at ISBT. She also admitted that accused Raj
Kumar is her brother. Everything else was denied by her. Her
admissions afore-noted are contained in the answers to
question No.18, 20 and 27 which are as under:-
"Ques 18: It is in evidence against you that on
24.08.02 Atma Ram Gupta left his house to attend
the Congress rally in his Indica Car no.DL6SK 0025
along with his driver Prabhu Yadav and from there he
came to your house and after having talks with you
Atma Ram asked his driver Prabhu Yadav (PW-17) to
take back the car to his house and Atma Ram Gupta
sat in your car alongwith you and which was driven
by your driver Om Parkash Chauhan. One other
person namely co-accused Rajinder also sat
alongwith you people in the said car. What you have
to say?
Ans: It is correct.
Ques 20: It is further in evidence against you that
on 24.08.02 after attending the Congress Rally at
Feroz Shah Kotla Ground for about 15/20 minutes
you alongwith Atma Ram Gupta and your co-accused
Rajinder Singh left in your Indica car being driven by
your driver PW11 Om Prakash Chauhan for
Ghaziabad and at near Jamuna Bazar, Hanuman
Mandir, ISBT you asked PW11 to go back to his
house and the car was thereafter being driven by
Rajinder Singh? What you have to say?
Ans: It is incorrect that after the rally we were to go
to Ghaziabad.
Ques 27: It is in evidence against you that when
the family members of Atma Ram Gupta made
enquiries from Om Parkash Chauhan, the driver of
your Indica car and came to know that Atma Ram
Gupta left the Rally alongwith you in your car for
Ghaziabad, that they again made enquiries from you
but you again claimed ignorance stating that Atma
Ram Gupta had got down at ISBT for his some
personal work. What you have to say?
Ans: It is incorrect but it is a fact that Atma Ram
Gupta got down at ISBT." (Emphasis Supplied)"
107. In his examination under Section 313 Cr.P.C.
accused Raj Kumar only admitted knowing accused Sharda
Jain as his sister. He denied everything else.
108. In his examination under Section 313 Cr.P.C.
accused Roshan Singh only admitted knowing Pushpender and
Nirvikar. He denied knowing or ever meeting any other co-
accused. He denied every piece of incriminating evidence put
to him.
109. In their examinations under Section 313 Cr.P.C.
accused Pushpender and Nirvikar denied everything.
110. In their examinations under Section 313 Cr.P.C.
Sripal Singh Raghav, Rakesh Kumar and Satender Kumar
pleaded innocenc e and denied everything. They stated that
they have been falsely implicated in order to save Govind
Singh Rawat, SO of PS Gulawati. But how, they failed to
disclose.
111. The accused led no evidence in their defence.
ANALYSIS OF THE IMPUGNED JUDGMENT
112. After considering the evidence led by the
prosecution as also the arguments advanced by the defence,
vide impugned judgment and order dated 21.12.2006, the
learned Trial Court drew 7 conclusions; namely, (i) that on
24.8.2002 the deceased was last seen alive in the company of
accused Sharda Jain and Rajinder Singh; (ii) that the date of
death of the deceased is 24.08.2002; (iii) that the prosecution
has been able to establish the motive of Sharda Jain to do
away with the deceased; (iv) that a false claim was made by
Sharda Jain that she was not present at Ghaziabad on
24.08.2002 (v) that the testimony of Mahender Pal Gupta PW-
8, that he had seen the wrist watch on hand of the deceased
at the time of the recovery of the body of the deceased and
photographs Ex.DX and Ex.DX-1 do not dent the case of the
prosecution regarding the recovery of wrist watch of the
deceased at the instance of accused Raj Kumar; (vi) that the
testimony of Om Parkash Chauhan PW-11, the driver of Sharda
Jain and Shanti PW-10, establish the suspicious conduct of
Sharda Jain on 24.08.2002 and (vii) that Subash PW-38, was a
truthful witness.
113. As regards conclusion (i), the learned Trial Court
has held that the evidence of Sumitra Gupta PW-18, the wife of
the deceased, Prabhu Yadav PW-17, the driver of Sharda Jain,
Om Parkash Chauhan PW-11, the driver of Sharda Jain and
Manish PW-14, a friend of son of the deceased, coupled with
the fact that Sharda Jain admitted the presence of Rajinder
Singh in her car on 24.08.2002 in her examination under
Section 313 Cr.P.C. conclusively establishes that the deceased
was last seen alive in the company of Sharda Jain and Rajinder
Singh. In coming to the said conclusion, particular emphasis
was laid down by the learned Trial Court on the fact that the
contents of the DD Entry No.31 Ex.PW-6/A, has not been
controverted by the defence.
114. In coming to conclusion (ii), the learned Trial Court
noted the state of the body of the deceased recorded in the
post-mortem report Ex.PW-21/A of the deceased and analyzed
the same in the light of medical jurisprudence.
115. In coming to conclusion (iii), the learned Trial Court
was influenced by the facts that (i) the suggestion given by the
defence to Dr.S.C.Rajput PW-3, in his cross-examination that
the deceased visited his clinic on 24/25/26.08.2002
corroborates the testimony of the witness that the deceased
used to visit his clinic; (ii) the fact that a denture set on which
words „S.C.Rajput‟ were engraved was recovered from the car
of Sharda Jain and that there is no evidence to show that
Sharda Jain was using artificial teeth corroborates the
testimony of Dr.S.C.Rajput PW-3, that Sharda Jain used to
accompany the deceased during his visits to his clinic which in
turn establishes that Sharda Jain and the deceased were
having close relations; (iii) testimony of Mahender Pal Gupta
PW-8, establishes that Sharda Jain was unhappy and angry
with the deceased as he had developed close relations with
Memwati Barwala and was ignoring her; (v) the fact recorded
in the DD entry, Ex.PW-6/A, that Sharda Jain misled the family
members of the deceased when they made enquiries from her
about the whereabouts of the deceased have not been
controverted by the defence; and (vi) the fact that Sharda Jain
tried to commit suicide on an earlier occasion indicates that
she had close relations with the deceased.
116. As regards conclusion (iv), learned Trial Court held
that (i) a cumulative reading of the call record Ex.PW-62/A of
the mobile number of Sharda Jain and the Cell ID Chart Ex.PW-
65/A which shows the locations of various towers installed by
the cellular company at Delhi and NCR establishes that the
mobile phone of Sharda Jain was present at Ghaziabad on
24.08.2002 inasmuch as incoming/outgoing calls were
received/made on/from the mobile phone of Sharda Jain on the
said day; and (ii) if the claim of Sharda Jain that she did not
visit Ghaziabad on 24.08.2002 was correct, it was incumbent
upon her to explain as to how the calls made/received to/from
her mobile phone came to be routed through the towers
installed at Ghaziabad and she failed to do so.
117. As regards conclusion (v), the learned Trial Court
held that (i) mark of wrist watch seen in the hand of the
deceased in photographs Ex.DX and Ex.DX-1 is of no
consequence for the reason some marks appear on the wrist,
when a person regularly wears a watch on his wrist; (ii)
testimony of Inspector V.S.Meena PW-62 and HC Dinesh Kumar
PW-43 that the said wrist watch was deposited in the Malkhana
on 28.08.2002 was not controverted by the defence; and (iii)
no question was put to HC Sajjan Kumar PW-33, who took
photographs of the body of the deceased at the time of its
recovery in his cross-examination regarding presence of wrist
watch on the wrist of the deceased.
118. As regards conclusion (vi), the learned Trial Court
held that (i) a cumulative reading of testimony of Shanti PW-10
and Om Parkash Chauhan PW-11, establishes that Sharda Jain
came to the house of Om Parkash Chauhan in the dead hour of
night on 24.08.2002 particularly when the testimony of Shanti
was not controverted by the defence; (ii) the fact that Sharda
Jain went at such a late hour to the house of Om Parkash
Chauhan shows that she wanted to tell him that he should not
disclose the fact that the deceased was present with them in
the morning to anyone; and (iii) if the said visit of Sharda Jain
was not in connection with the present incident then it was
incumbent upon her to explain as to what was the urgency for
her to go to the house of Om Parkash Chauhan in the dead
hour of the night.
119. In coming to conclusion (vii), the learned Trial Court
brushed aside the submission advanced by the defence that
Subash was a planted witness evident from the fact that as he
surfaced nearly three months after the recovery of the body of
the deceased, holding that (i) the fact that Subash could shed
some light on the disposal of the body of the deceased came
to the knowledge of the Investigating Officer only after the
arrest of Roshan Singh on 15.11.02 i.e. nearly 2 ½ months
after the recovery of the body of the deceased; (ii) it cannot be
expected that Subash, who is a villager, would have come
forward to apprise the police with the facts in his knowledge
particularly when the matter was a high-profile one; (iii) had
Subash been a planted witness he would claimed to have seen
the body of the deceased with his own eyes; and (iv) Subash
had no reason to falsely implicate the three police officials.
120. Having drawn the afore-noted 7 conclusions, the
learned Trial Court proceeded to deal with the case against
each of the accused person. Save and except accused Sripal
Singh Raghav, Rakesh Kumar and Satender Kumar, the
learned Trial Court convicted the other accused of all the
charges framed against them. Holding that the prosecution
has not been able to establish that accused Sripal Singh
Raghav, Rakesh Kumar and Satender Kumar entered into a
criminal conspiracy with the other accused persons to cause
disappearance of the evidence of murder of the deceased, the
learned Trial Court acquitted them of the charge framed
against them for having committed the offence punishable
under Section 120-B IPC. However, the learned Trial Court
convicted the said three police officials under Section 201 IPC
for causing disappearance of the evidence of the murder of the
deceased.
121. The circumstances used by the learned Trial Court
for convicting accused "Sharda Jain" are that (i) Sharda Jain
pointed out the place of the murder of the deceased; (ii) the
deceased was last seen alive in the company of Sharda Jain
and that the time gap between the last seen and time of the
death of the deceased is so small that it makes the possibility
that the deceased could have come in the contact of any other
person too remote; (iii) no plausible explanation was given by
Sharda Jain as to how and when the deceased parted company
with her on 24.08.2002; (iv) a false claim was made by Sharda
Jain that she did not visit Ghaziabad on 24.08.2002; (v) Sharda
Jain misled the family members of the deceased when they
made enquiries from her about the whereabouts of the
deceased; (vi) two meetings took place between Sharda Jain,
Raj Kumar, Rajinder Singh and Roshan Singh at the residence
of Sharda Jain just few days prior to 24.08.2002; (vii) the
conduct of Sharda Jain of visiting the house of her driver in the
late hours of the night on 24.08.2002 is suspicious and (viii)
Sharda Jain had a motive to kill the deceased.
122. The circumstances used by the learned Trial Court
for convicting accused "Raj Kumar" are that (i) Raj Kumar
along with two other persons visited the house of Sharda Jain
on two occasions just few days prior to 24.08.2002; (ii) the
place of residence of Raj Kumar was in the vicinity of the place
of murder of the deceased; (iii) Raj Kumar did not controvert
the factum of his acquaintance with accused Roshan Singh and
Rajinder Singh; (iv) sudden arrival of Raj Kumar at the house of
Sharda Jain on the day of arrest of Sharda Jain; (v) Raj Kumar
pointed out the place of the murder of the deceased (vi) wrist
watch of the deceased was recovered at the instance of Raj
Kumar and (vii) the disclosure statement of Raj Kumar
provided leads to the police.
123. The circumstances used by the learned Trial Court
for convicting accused "Rajinder Singh" are that (i) the
deceased was last seen alive in the company of Rajinder Singh
and that the time gap between the last seen and time of the
death of the deceased is so small that it makes the possibility
that the deceased could have come in the contact of any other
person too remote; (ii) no plausible explanation was given by
Rajinder Singh as to how and when the deceased parted
company with him on 24.08.2002; (iii) Rajinder Singh was
associated with Roshan Singh as he has not controverted the
fact that he used to drive the car of Roshan Singh on a
temporary basis; (iv) a false claim was made by Rajinder Singh
that he never visited the house of Sharda Jain; (v) refusal of
Rajinder Singh to participate in the TIP proceedings and that
the reason given by him for said refusal was not plausible.
124. The circumstances used by the learned Trial Court
for convicting accused "Roshan Singh" are that (i) Roshan
Singh was absconding from his house after 24.08.2002; (ii)
testimony of Subash PW-38, establishes that Roshan Singh
played a role in disposing of the body of the deceased; (iii)
Roshan Singh was closely associated with other accused
persons namely Rajinder Singh, Pushpender and Nirvikar; (iv)
recovery of two country made pistols and the gold ring of the
deceased at the instance of Roshan Singh; (v) Roshan Singh
was arrested from Hoshangabad, M.P. and he failed to give
any reason for his presence at M.P.; (vi) Roshan Singh failed to
give any reason for his false implication in the present case;
(vii) Roshan Singh pointed out the place of murder and
disposal of the body of the deceased and (viii) the disclosure
statement of Raj Kumar provided leads to the police.
125. The circumstances used by the learned Trial Court
for convicting accused "Pushpender and Nirvikar" are (i)
recovery of I-cards of the deceased at the instance of
Pushpender and Nirvikar; (ii) Pushpender and Nirvikar were in
need of a job inasmuch as said fact was not disputed by them;
(iii) Pushpender and Nirvikar pointed out the place of murder
of the deceased and (iv) disclosure statements of Pushpender
and Nirvikar provided leads to the police.
126. The circumstances used by the learned Trial Court
for convicting accused "Sripal Singh Raghav, Satender Kumar
and Rakesh Kumar" are that (i) testimony of Subash PW-38,
establishes that aforesaid police officials played a role in
disposing of the body of the deceased; (ii) they were found to
be absconding; (iii) they could not give satisfactory reason for
their false implication in the present case and (iv) they pointed
out the places where the body of the deceased was found and
disposed.
127. Having convicted the accused persons, vide order
dated 22.12.2006 the learned Trial Court proceeded to
sentence them. For the offence punishable under Section 302
read with Section 120-B IPC accused Sharda Jain, Raj Kumar,
Roshan Singh, Rajinder Singh, Pushpender, Nirvikar hav been
sentenced to undergo imprisonment for life and to pay a fine
in sum of Rs10,000/- each, in default to undergo SI for six
months. For the offence punishable under Section 364 read
with Section 120-B IPC accused Sharda Jain, Raj Kumar,
Roshan Singh, Rajinder Singh, Pushpender, Nirvikar have been
sentenced to undergo RI for seven years and to pay a fine in
sum of Rs.5,000/- each, in default to undergo SI for three
months. For the offence punishable under Section 120-B IPC
for abducting and murdering the deceased in pursuance of a
conspiracy accused Sharda Jain, Raj Kumar, Roshan Singh,
Rajinder Singh, Pushpender, Nirvikar have been sentenced to
undergo imprisonment for life and to pay a fine in sum of
Rs10,000/- each, in default to undergo SI for six months. For
the offence punishable under Section 25, Arms Act, 1959
accused Roshan Singh has been sentenced to undergo RI for
three years and to pay a fine in sum of Rs5,000/-, in default to
undergo SI for three months. For the offence punishable under
Section 27, Arms Act, 1959 accused Pushpender and Nirvikar
have been sentenced to undergo RI for three years and to pay
a fine in sum of Rs5,000/- each, in default to undergo SI for
three months. For the offence punishable under Section 120-B
IPC for causing disappearance of the evidence in pursuance of
a conspiracy accused Sharda Jain, Raj Kumar and Roshan
Singh have been sentenced to undergo RI for four years and to
pay a fine in sum of Rs5,000/- each, in default to undergo SI
for three months. For the offence punishable under Section
201 read with Section 34 IPC accused Sripal Singh Raghav,
Rakesh Kumar and Satender Kumar have been sentenced to
undergo RI for three years and to pay a fine in sum of
Rs5,000/- each, in default to undergo SI for three months. All
the sentences were directed to run concurrently.
LAW OF CONSPIRACY
128. As conspiracy is the primary charge against the
accused, we first advert to the law of conspiracy - its
definition, essential features and proof.
129. Section 120-A defines „criminal conspiracy‟ as
under:-
"Definition of criminal conspiracy - When two or
more person agree to do, or cause to be done,
(1) An illegal act, or
(2) An act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one or
more parties to such agreement in pursuance thereof
Explanation: - It is immaterial whether the illegal act
is the ultimate object of such agreement, or is
merely incidental to that object."
130. It is clear from the above noted definition of
„criminal conspiracy‟ that the three essential elements of
offence of conspiracy are (a) a criminal object, which may be
either the ultimate aim of the agreement, or may constitute
the means, or one of the means by which that aim is to be
accomplished; (b) a plan or scheme embodying means to
accomplish that object; (c) an agreement or understanding
between two or more of the accused persons whereby, they
become definitely committed to cooperate for the
accomplishment of the object by the means embodied in the
agreement, or by any effectual means. Thus, the gist of
offence of criminal conspiracy is an agreement to break the
law.
131. Sections 120-A and 120-B were brought on the
statute book by way of Criminal Law Amendment Act, 1913.
Earlier to the introduction of Sections 120A and 120B,
conspiracy per se was not an offence under the Indian Penal
Code except in respect of the offence mentioned in Section
121A. In the Objects and Reasons to the Amendment Bill, it
was explicitly stated that the new provisions (120-A & B) were
"designed to assimilate the provisions of the Indian Penal Code
to those of the English Law...." Thus, Sections 120A & 120B
made conspiracy a substantive offence and rendered the mere
agreement to commit an offence punishable.
132. Proof of a criminal conspiracy by direct evidence is
not easy to get and probably for this reason Section 10 of the
Indian Evidence Act was enacted. It reads as under:-
"10. Things said or done by conspirator in
reference to common design:-Where there is
reasonable ground to believe that two or more
persons have conspired together to commit an
offence or an actionable wrong, anything said, done
or written by any one of such persons in reference to
their common intention, after the time when such
intention was first entertained by any one of them, is
a relevant fact as against each of the persons
believed to so conspiring, as well for the purpose of
proving the existence of the conspiracy as for the
purpose of showing that any such person was a party
to it."
133. Thus, the substantive section of the IPC i.e. Section
120-A adumbrated thereon Section 10 of the Indian Evidence
Act give us the legislative provisions applicable to conspiracy
and its proof.
134. After survey of the case law on the point, following
legal principles pertaining to the law of conspiracy can be
conveniently culled out:-
A When two or more persons agree to commit a crime of
conspiracy, then regardless of making or considering any
plans for its commission, and despite the fact that no step is
taken by any such person to carry out their common purpose,
a crime is committed by each and every one who joins in the
agreement. There has thus to be two conspirators and there
may be more than that. To prove the charge of conspiracy it is
not necessary that intended crime was committed or not. If
committed it may further help prosecution to prove the charge
of conspiracy. (See the decision of Supreme Court reported as
State v Nalini (1999) 5 SCC 253)
B The very agreement, concert or league is the ingredient
of the offence. It is not necessary that all the conspirators
must know each and every detail of the conspiracy as long as
they are co-participators in the main object of the conspiracy.
It is not necessary that all conspirators should agree to the
common purpose at the same time. They may join with other
conspirators at any time before the consummation of the
intended objective, and all are equally responsible. What part
each conspirator is to play may not be known to everyone or
the fact as to when a conspirator joined the conspiracy and
when he left. There may be so many devices and techniques
adopted to achieve the common goal of the conspiracy and
there may be division of performances in the chain of actions
with one object to achieve the real end of which every
collaborator must be aware and in which each one of them
must be interested. There must be unity of object or purpose
but there may be plurality of means sometimes even unknown
to one another, amongst the conspirators. In achieving the
goal several offences may be committed by some of the
conspirators even unknown to the others. The only relevant
factor is that all means adopted and illegal acts done must be
and purported to be in furtherance of the object of the
conspiracy even though there may be sometimes misfire or
overshooting by some of the conspirators. Even if some steps
are resorted to by one or two of the conspirators without the
knowledge of the others it will not affect the culpability of
those others when they are associated with the object of the
conspiracy. But then there has to be present mutual interest.
Persons may be members of single conspiracy even though
each is ignorant of the identity of many others who may have
diverse role to play. It is not a part of the crime of conspiracy
that all the conspirators need to agree to play the same or an
active role. (See the decisions of Supreme Court reported as
Yash Pal Mittal v State of Punjab AIR 1977 SC 2433 and State v
Nalini (1999) 5 SCC 253)
C It is the unlawful agreement and not its accomplishment,
which is the gist or essence of the crime of conspiracy. Offence
of criminal conspiracy is complete even though there is no
agreement as to the means by which the purpose is to be
accomplished. It is the unlawful agreement, which is the
graham of the crime of conspiracy.
D The unlawful agreement which amounts to a conspiracy
need not be formal or express, but may be inherent in and
inferred from the circumstances, especially declarations, acts,
and conduct of the conspirators. The agreement need not be
entered into by all the parties to it at the same time, but may
be reached by successive actions evidencing their joining of
the conspiracy. Since a conspiracy is generally hatched in
secrecy, it would quite often happen that there is no evidence
of any express agreement between the conspirators to do or
cause to be done the illegal act. For an offence under Section
120B, the prosecution need not necessarily prove that the
perpetrators expressly agreed to do or cause to be done the
illegal act; the agreement may be proved by necessary
implication. The offence can be only proved largely from the
inference drawn from acts or illegal omission committed by
the conspirators in pursuance of a common design. The
prosecution will also more often rely upon circumstantial
evidence. It is not necessary to prove actual meeting of
conspirators. Nor it is necessary to prove the actual words of
communication. The evidence as to transmission of thoughts
sharing the unlawful design is sufficient. Surrounding
circumstances and antecedent and subsequent conduct of
accused persons constitute relevant material to prove charge
of conspiracy. (See the decisions of Supreme Court reported
as Shivnarayan Laxminarayan Joshi v State of Maharashtra AIR
1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar
v State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v
State AIR 1988 SC 1883)
E A conspiracy is a continuing offence and continues to
subsist and committed wherever one of the conspirators does
an act or series of acts. So long as its performance continues,
it is a continuing offence till it is executed or rescinded or
frustrated by choice or necessity. A crime is complete as soon
as the agreement is made, but it is not a thing of the moment.
It does not end with the making of the agreement. It will
continue so long as there are two or more parties to it
intending to carry into effect the design. Its continuance is a
threat to the society against which it was aimed at and would
be dealt with as soon as that jurisdiction can properly claim
the power to do so. The conspiracy designed or agreed abroad
will have the same effect as in India, when part of the acts,
pursuant to the agreement are agreed to be finalized or done,
attempted or even frustrated and vice versa.
F Section 10 of the Evidence Act introduces the doctrine of
agency and if the conditions laid down therein are satisfied,
the acts done by one are admissible against the co-
conspirators. In short, the section can be analysed as follows:
(1) There shall be a prima facie evidence affording a
reasonable ground for a Court to believe that two or more
persons are members of a conspiracy; (2) if the said condition
is fulfilled, anything said, done or written by any one of them
in reference to their common intention will be evidence
against the other; (3) anything said, done or written by him
should have been said, done or written by him after the
intention was formed by any one of them; (4) it would also be
relevant for the said purpose against another who entered the
conspiracy whether it was said, done or written before he
entered the conspiracy or after he left it; and (5) it can only be
used against a co-conspirator and not in his favour. (See the
decision of Supreme Court reported as Sardar Sardul Singh v
State of Maharashtra AIR 1957 SC 747.)
DISCUSSION ON CIRCUMSTANTIAL EVIDENCE
135. As discussed in the foregoing paras, more often
than not, the prosecution would adduce circumstantial
evidence to prove the charge of conspiracy. The question
which arises is that what should be the nature of
circumstantial evidence in a case of conspiracy to bring home
the guilt of the accused persons.
136. The well known rule governing circumstantial
evidence that :- (a) the circumstances from which the
inference of guilt of the accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from
those circumstances; (b) the circumstances are of a
determinative tendency unerringly pointing towards the guilt
of the accused; and (c) the circumstances, taken collectively,
are incapable of explanation on any reasonable hypothesis
save that of the guilt sought to be proved against him, is fully
applicable in cases of proof of conspiracy. The courts have
added two riders to aforesaid principle; namely, (i) there
should be no missing links but it is not that every one of the
links must appear on the surface of the evidence, since some
of these links can only be inferred from the proved facts and
(ii) it cannot be said that the prosecution must meet any and
every hypothesis put forward by the accused however far-
fetched and fanciful it may might be. (See the decision of
Supreme Court reported as Gagan Kanojia v State of Punjab
(2006) 13 SCC 516)
137. The question which arises for consideration is, what
does the expression „proved beyond reasonable doubt‟
occurring in the afore-noted cardinal rule of circumstantial
evidence signify. Does it mean that the prosecution is required
to prove its case with hundred percent certainty?
138. The answer to the aforesaid question can be found
in the following observations of Supreme Court in the decision
reported as Lal Singh v State of Gujarat AIR 2001 SC 746:-
"The learned Sr. Counsel Mr. Sushil Kumar submitted
that prosecution has not proved beyond reasonable
doubt all the links relied upon by it. In our view, to
say that prosecution has to prove the case with a
hundred percent certainty is myth. Since last many
years the nation is facing great stress and strain
because of misguided militants and co-operation to
the militancy, which has affected the social security,
peace and stability. It is common knowledge that
such terrorist activities are carried out with utmost
secrecy. Many facts pertaining to such activities
remain in personal knowledge of the person
concerned. Hence, in case of conspiracy and
particularly such activities, better evidence than acts
and statements including that of co-conspirators in
pursuance of the conspiracy is hardly
available............. For assessing evidence in such
cases, this Court in Collector of Customs, Madras &
Others v. D. Bhoormall AIR 1974 SC 859 dealing with
smuggling activities and the penalty proceedings
under Section 167 of the Sea Customs Act, 1878
observed that many facts relating to illicit business
remain in the special or peculiar knowledge of the
person concerned in it and held thus:
"30. .. that the prosecution or the
Department is not required to prove its
case with mathematical precision to a
demonstrable degree; for, in all human
affairs absolute certainty is a myth, and
as Prof. Brett felicitously puts it -- "all
exactness is a fake". E1 Dorado of
absolute proof being unattainable, the law
accepts for it, probability as a working
substitute in this work-a-day world. The
law does not require the prosecution to
prove the impossible. All that it requires is
the establishment of such a degree of
probability that a prudent man may, on
its basis, believe in the existence of the
fact in issue. Thus, legal proof is not
necessarily perfect proof; often it is
nothing more than a prudent man's
estimate as to the probabilities of the
case......" (Emphasis supplied)
139. The Evidence Act does not insist upon absolute
proof for the simple reason that perfect proof in this imperfect
world is seldom to be found. That is why under Section 3 of
the Evidence Act, a fact is said to be 'proved' when, after
considering the matters before it, the Court either believes it
to exist, or considers its existence so probable that a prudent
man ought, under the circumstances of the particular case, to
act upon the supposition that it exists. This definition of
'proved' does not draw any distinction between circumstantial
and other evidence. The use of expression „determinative
tendency‟ in the afore-noted rule also seconds the view that
the prosecution is not required to adduce such evidence which
absolutely proves the guilt of an accused person. Thus,
circumstantial evidence in order to furnish a basis for
conviction requires a high degree of probability, that is, so
sufficiently high that a prudent man considering all the facts,
feels justified in holding that the accused has committed the
crime. (See the decisions of Supreme Court reported as State
of Maharashtra v Mohd. Yakub AIR 1980 SC 1111 and Gokaraju
Venkatanarasa Raju v State of AP (1993) Supp (4) SCC 191)
140. The approach to be adopted by the courts while
appreciating circumstantial evidence was succinctly stated by
Supreme in the decision reported as M.G.Agarwal v State of
Maharashtra AIR 1963 SC 200 in following terms:-
"It is a well established rule in criminal jurisprudence
that circumstantial evidence can be reasonably made
the basis of an accused person's conviction if it is of
such a character that it is wholly inconsistent with the
innocence of the accused and is consistent only with
his guilt. If the circumstances proved in the case are
consistent either with the innocence of the accused
or with his guilt, then the accused is entitled to the
benefit of doubt. There is no doubt or dispute about
this position. But in applying this principle, it is
necessary to distinguish between facts which may be
called primary or basic on the one hand and inference
of facts to be drawn from them on the other. In
regard to the proof of basic or primary facts, the
Court has to judge the evidence in the ordinary way,
and in the appreciation of evidence in respect of the
proof of these basic or primary facts there is no scope
for the application of the doctrine of benefit of doubt.
The court considers the evidence and decides
whether that evidence proves a particular fact or not.
When it is held that a certain fact is proved, the
question arises whether that fact leads to the
inference of guilt of the accused person or not, and in
dealing with this aspect of the problem the doctrine
of benefit of doubt would apply and an inference of
guilt can be drawn only if the proved fact is wholly
inconsistent with the innocence of the accused and is
consistent only with his guilt."
141. Place of murder of the deceased: - As already noted
herein above, the first circumstance used by the learned Trial
Judge to infer the guilt of accused Sharda Jain is her conduct of
pointing out the place of murder of the deceased.
142. A perusal of the impugned judgment goes to show
that the learned Trial Judge has proceeded on the assumption
that the spot pointed out by the accused vide pointing out
memo Ex.PW-44/E is the place of murder of the deceased. No
endeavor has been made out by the learned Trial Judge to
determine whether the spot in question is the place of murder
of the deceased. The approach of learned Trial Judge in
assuming that the spot in question is the place of murder of
the deceased is clearly erroneous. It was incumbent upon the
learned Trial Judge to first determine from the facts emerging
on record and the evidence led by the prosecution that
whether the spot in question is the place of murder of the
deceased. The learned Trial Judge has also not analyzed the
evidence led by the prosecution to prove the pointing out of
alleged place of murder of the deceased by accused Sharda
Jain.
143. That being the case, we first proceed to undertake
an inquiry whether the evidence led by the prosecution to
prove the pointing out of alleged place of murder of the
deceased by accused Sharda Jain is creditworthy and that
whether the spot pointed out by accused Sharda Jain (herein
after referred to as the "Spot A") is the place of murder of the
deceased.
144. To establish the pointing out of spot A by accused
Sharda Jain, the prosecution has examined the police officials
namely Inspector V.S.Meena PW-62, HC Sunita PW-31, SI Ram
Kumar PW-32, SI Anil Kumar Chauhan PW-44 and SI Shiv Raj
Singh PW-55 and one Mahender Pal Gupta PW-8, the friend of
the deceased.
145. The testimony of Mahender Pal Gupta PW-8, needs
to be viewed with great caution. Having perused the evidence
of Mahender Pal Gupta during the course of arguments of the
present case, we have come to the conclusion that Mahender
Pal Gupta is a witness who lives in an imaginary world and
loves to revel himself. There is hardly any relevant aspect of
the case of the prosecution on which Mahender Pal Gupta has
not given evidence.
146. A perusal of the testimony of Mahender Pal Gupta
PW-8, contents whereof have been noted in paras 100 and 101
above, reveals that the witness is most gibberish on the point
of pointing out of spot A by accused Sharda Jain and Raj
Kumar. The witness has nowhere deposed that he witnessed
the pointing out of spot A by accused Sharda Jain and Raj
Kumar. On the contrary, he deposed that he does not
remember that whether accused Sharda Jain and Raj Kumar
took part in the investigation conducted at spot A on
28.08.2002. There is also a glaring discrepancy in the
testimony of Mahender Pal Gupta inasmuch as he deposed
that accused Rajinder and Roshan Singh were also present at
spot A on 28.08.2002; whereas as per the case of the
prosecution the said accused persons were arrested by the
police much after 28.08.2002. The evidence of the witness is
ipsi-dixit on the point of the presence of accused Rajinder at
spot A on 28.08.2002 inasmuch as the witness deposed that
accused Raju was also present at spot A on 28.08.2002 and
has referred to accused Rajinder as Raju in his examination-in-
chief whereas he has referred accused Raj Kumar as Raju in
his cross-examination. The evidence of the witness is also ipsi-
dixit on the point of presence of accused Roshan Singh
inasmuch as the witness deposed that accused Roshan Singh
was present at spot A on 28.08.2002 in his examination-in-
chief whereas he denied the presence of accused Roshan
Singh at spot A on 28.08.2002 in his cross-examination. In
such circumstances, the claim of the prosecution that
Mahender Pal Gupta was present at spot A on 28.08.2002 and
witnessed the pointing out of spot A by accused Sharda Jain
and Raj Kumar is not tenable.
147. The question which thus arises for consideration is,
what is the effect of doubtful testimony of Mahender Pal Gupta
on the credibility of the other evidence led by the prosecution
to establish that the pointing out of spot A by accused Sharda
Jain and Raj Kumar.
148. On this aspect, suffice would it be to note the
following observations of Supreme Court in the decision
reported as State of UP V Anil Singh AIR 1988 SC 1998:-
"With regard to falsehood stated or embellishments
added by the prosecution witnesses, it is well to
remember that there is a tendency amongst
witnesses in our country to back up a good case by
false or exaggerated version. The Privy Council had
an occasion to observe this. In Bankim Chander v.
Matangini 24 C.W.N. 626 PC, the Privy Council had
this to say (at 628):
That in Indian litigation it is not safe to assume that a
case must be false if some of the evidence in support
of it appears to be doubtful or is clearly unture, since
there is, on some occasions, a tendency amongst
litigants to back up a good case by false or
exaggerated evidence.
18. In Abdul Gani v. State of Madhya Pradesh AIR
1954 SC 31 Mahajan, J. speaking for this Court
deprecated the tendency of courts to take an easy
course of holding the evidence discrepant and
discarding the whole case as untrue. The learned
Judge said that the Court should make an effort to
disengage the truth from falsehood and to sift the
grain from the chaff.
19. It is also our experience that invariably the
witnesses add embroidery to prosecution story,
perhaps for the fear of being disbelieved. But that is
no ground to throw the case overboard, if true, in the
main. If there is a ring of truth in the main, the case
should not be rejected. It is the duty of the Court to
cull out the nuggets of truth from the evidence unless
there is reason to believe that the inconsistencies or
falsehood are so glaring as utterly to destroy
confidence in the witnesses. It is necessary to
remember that a Judge does not preside over a
criminal trial merely to see that no innocent man is
punished. A Judge also presides to see that a guilty
man does not escape. One is as important as the
other. Both are public duties which the Judge has to
perform."
149. In view of the aforesaid dictum, it cannot be said
that the evidence of Mahender Pal Gupta has created a doubt
on the credibility of the evidence of the other witnesses of the
prosecution pertaining to pointing out of spot A at the instance
of accused Sharda Jain and Raj Kumar. Their evidence, thus,
needs to be seen.
150. The police officials namely Inspector V.S.Meena PW-
62, HC Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar
Chauhan PW-44 and SI Shiv Raj Singh PW-55 have deposed
that spot A was pointed out by accused Sharda Jain and Raj
Kumar on 28.08.2002. The aforesaid witnesses have withstood
the test of cross-examination. Spot A was not known to police
before 28.08.2002 which implies that indeed spot A was
brought to the knowledge of police either by accused Sharda
Jain or by accused Raj Kumar or simultaneously by both of
them. The evidence on record shows that spot A was in the
knowledge of Sharda Jain before 28.08.2002, which fact
conclusively establishes that spot A was pointed out by
accused Sharda Jain to the police. (The evidence pertaining to
knowledge of Sharda Jain of spot A before 28.08.2002 shall be
discussed by us shortly herein after).
151. Having held that spot A was pointed out by accused
Sharda Jain to the police, we now proceed to determine that
whether spot A was the place of murder of the deceased.
152. It is an undisputed fact that the body of the
deceased was found in a canal. It is further undisputed that
spot A is near the canal where the body of the deceased was
found.
153. It is also not in dispute that the cause of death of
the deceased was not drowning. The post-mortem Ex.PW-21/A
of the deceased records that death of the deceased was
caused due to a firearm injury, which recording is not
challenged by the defence. It thus follows that the deceased
was first murdered and thereafter his body was thrown into
the canal. It further follows that body of the deceased was
thrown at or ahead of the spot where it was found.
154. Another undisputed fact is that spot A is upstream
of the spot where body of the deceased was recovered.
155. Having noted the undisputed facts emerging from
the evidence on record, we proceed to deal with the facts
sought to be established by the prosecution to prove that spot
A is the place of murder of the deceased.
156. The first fact sought to be established by the
prosecution is that human blood was found at spot A. To
establish the said fact, the prosecution placed reliance upon
the testimonies of the police officials who participated in the
investigation of the present case on 28.08.2002 namely HC
Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar Chauhan
PW-44 and Inspector V.S.Meena PW-62 and the FSL reports
Ex.PW-41/A and Ex.PW-41/B.
157. The aforesaid police officials deposed that the soil
at spot A was found to be stained with blood at three different
points and the said blood stained soil was lifted and seized
vide memo Ex.PW-44/D. The aforesaid testimony of the
witnesses could not be shaken in the cross-examination.
158. As already noted in foregoing paras, the FSL reports
Ex.PW-41/A and Ex.PW-41/B record that soil lifted from spot A
is found to be stained with human blood, group whereof could
not be determined.
159. At this juncture, a submission advanced by the
learned senior counsel pertaining to the purity of the exhibits
which contained soil lifted from spot A and were sent to the
FSL needs to be noted and considered.
160. To understand the submission advanced by the
learned senior counsel, it is necessary to note the movement
of the soil in question, to and from the Malkhana.
161. A perusal of entry no.1560 recorded in the
Malkhana Register Ex.PW-43/A shows that three pullandas
containing blood stained soil and three pullandas containing
earth control lifted from spot A were deposited at the
Malkhana on 28.08.2002. A further perusal thereof shows that
HC Dinesh Kumar PW-43, Malkhana Moharar, marked the three
pullandas containing blood stained soil as 1, 1A and 1B
respectively and pullandas containing earth control as 2, 2A
and 2B respectively.
162. A further perusal of entry no.1560 shows that an
endorsement is made therein which records that SI Sukaram
Pal PW-39, collected the aforesaid pullandas, jaw, piece of
flesh, viscera and contents of the stomach of the deceased
from HC Dinesh Kumar on 05.11.2002 for the purposes of
depositing the same at the FSL.
163. It is significant to note here that HC Dinesh Kumar
PW-43, deposed that on 05.11.2002, SI Sukaram Pal collected
the aforesaid materials and other case property from him and
that the same was not tampered with till the time it was
handed over to SI Sukaram Pal. SI Sukaram Pal PW-39,
deposed that he collected the aforesaid materials and other
case property from Malkhana Moharar on 05.11.2002 and
deposited the same at the FSL on same day itself. He further
deposed that there was no tampering with the case property
till the time the same was deposited by him at the FSL. (It may
be noted here that the said witnesses were not cross-
examined on the said point. The testimony of the witnesses
pertaining to the tampering of the case property was not
controverted by the defence inasmuch as no contrary
suggestion was given to them in their cross-examination).
164. The FSL report Ex.PW-41/A, which contains the
description of the articles deposited at the FSL on 05.11.2002,
records that exhibits 1 and 1A containing blood stained soil
and exhibits 2, 2A and 2B containing earth control were
deposited at the FSL. The question which stares in the face is
that what happened to exhibit 1B.
165. The submission advanced by the learned senior
counsel was that the fact that exhibit 1B did not reach the FSL
strongly suggests that the exhibits containing soil lifted from
spot A were tampered with and therefore no reliance could be
placed upon the FSL reports Ex.PW-41/A and Ex.PW-41/B.
166. To solve the mystery surrounding the
disappearance of exhibit 1B, it is most necessary to note the
endorsement dated 28.11.2002 made in the entry No.1560
that on 28.11.2002 SI Anil Kumar Chauhan PW-44, collected
the jaw and piece of flesh of the deceased as also blood
stained soil from the FSL and deposited the same at Malkhana.
(It may be noted here that SI Anil Kumar Chauhan PW-44,
deposed to the same effect and that he was not cross-
examined on the said point)
167. A perusal of the FSL reports Ex.PW-41/A and Ex.PW-
41/B shows that the same were prepared on 29.01.2003,
meaning thereby, that the blood stained soil was present at
FSL on 29.01.2003. Now, the question is, that if blood stained
soil was present at FSL on 29.01.2003 then what was collected
on 28.11.2002. The answer is clear. Exhibit 1B was collected
from the FSL on 28.11.2002 while exhibits 1 and 1A remained
deposited at the FSL and that is the reason why exhibit 1B
does not find a mention in the FSL report Ex.PW-41/A.
168. Be that as it may, no question was put to SI
Sukaram Pal PW-39, who deposited the soil in question at the
FSL on 05.11.2002, regarding the non-mention of exhibit 1B in
the FSL report Ex.PW-41/A.
169. Having given no opportunity to the witness to
explain the non-mention of exhibit 1B in the FSL report Ex.PW-
41/A, no adverse inference can be drawn against the
prosecution.
170. In taking the said view, we are supported by a
decision of Supreme Court reported as Rahim Khan v Khurshid
Ahmad AIR 1975 SC 290 wherein it was observed as under:-
".......The entry with which we are concerned is
5072A and this is not unusual when by mistake a
clerk has written identical figures for two entries.
Moreover there is no cross-examination on this point
and in the absence of cross-examination giving an
opportunity to the witness to explain the
circumstances from which an inference is sought to
be drawn, no such inference--particularly of forgery
and publication of documents--can be permitted to
be raised." (Emphasis supplied)
171. In the decision reported as State of UP V Anil Singh
1988 (Supp) SCC 686, the eye-witness wrote a report giving
fairly all the particulars of the occurrence and lodged the same
with the report within few minutes of the occurrence. An
argument was raised by the defence that it was impossible for
the witness to prepare such an exhaustive report and lodge
the same with the police so soon after the occurrence. The
said argument was repelled by Supreme Court on the ground
that the witness in question was not specifically cross-
examined on said point.
172. In the decision reported as Sunil Kumar v State of
Rajasthan (2005) 9 SCC 298 great stress was laid by the
defence on the facts that there was delayed dispatch of the
FIR to the Ilaqa Magistrate and delayed recording of the
statements of the witnesses under Section 161 CrPC. One of
the reasons which weighed with Supreme Court for not
drawing an adverse inference against the prosecution was that
no question was put to the Investigating Officer regarding the
aforesaid delay.
173. The matter can also be looked from another angle.
174. As already pointed in foregoing paras, the evidence
of HC Dinesh Kumar PW-43 and SI Sukaram Pal PW-39, that
there was no tampering with the case property including the
soil in question till the time the same remained in their
possession has not been controverted by the defence.
175. It is settled law that where a witness is not cross-
examined on any relevant aspect, the correctness of the
statement made by a witness cannot be disputed. (See the
decisions of Supreme Court reported as State of U.P. v. Nahar
Singh AIR 1988 SC 1328 and Rajinder Prasad v. Darshana Devi
AIR 2001 SC 3207).
176. In view of the above discussion, we find no merit in
the submission of the defence that the soil lifted from spot A
was tampered with before being deposited at the FSL. We
further hold that the prosecution has been able to establish
that the soil lifted from spot A was found to be stained with
human blood.
177. The next fact sought to be established by the
prosecution is that the mud found stuck on the tyre of Sharda
Jain and the soil lifted from spot A were having similar physical
characteristics. To establish the said fact, the prosecution
placed reliance upon the testimonies of the police officials who
participated in the investigation of the present case on
27/28.08.2002 namely Inspector Shiv Raj Singh PW-55, HC
Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar Chauhan
PW-44 and Inspector V.S.Meena PW-62 and the FSL report
Ex.PW-66/A.
178. Inspector Shiv Raj Singh PW-55, HC Sunita PW-31,
SI Anil Kumar Chauhan PW-44 and Inspector V.S.Meena PW-62,
deposed that on 27.08.2002 when the investigation was being
conducted at the residence of accused Sharda Jain the mud
was found stuck on the right rear tyre of the car of Sharda Jain
and that the said tyre was seized vide memo Ex.PW-44/C1. HC
Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar Chauhan
PW-44 and Inspector V.S.Meena PW-62, deposed that on
28.08.2002 the earth control was lifted from spot A and that
the same was seized vide memo Ex.PW-44/G. The aforesaid
testimony of the witnesses could not be shaken in the cross-
examination.
179. As already noted in foregoing paras, the FSL report
Ex.PW-66/A records that the mud found stuck on the tyre of
Sharda Jain and the soil lifted from spot A possessed similar
physical characteristics.
180. At this stage, a submission advanced by learned
senior counsel for Sharda Jain predicated upon Section 45,
Indian Evidence Act, 1872 needs consideration.
181. Learned senior counsel contended that in order to
bring the evidence of a witness as that of an „expert‟ it has to
be shown that he has made a special study of the subject or
acquired a special experience therein or in other words that he
is skilled and has adequate knowledge of the subject. After
referring to the deposition of Dr.Swaroop Vedanand PW-66
that „It is correct that I have not studied any course in Geology.
I have not studied any degree of diploma in structural geology
or physical geology. I am not aware about any course of
physical geology‟, learned senior counsel contended that he
cannot be taken as an „expert‟ within the meaning of Section
45, Indian Evidence Act, 1872. In support of the said
submission, reliance was placed upon the decisions of
Supreme Court reported as State of HP v Jai Lal (1999) 7 SCC
280, S.Gopal Reddy v State of AP (1996) 4 SCC 596 and Magan
Bihari Lal v State of Punjab (1977) 2 SCC 210.
182. Section 45, Indian Evidence Act 1872 reads as
under:-
"45. Opinion of experts - When the Court has to
form an opinion upon a point of foreign law or of
science or art, or as to identity of handwriting or
finger impressions, the opinion upon that point of
persons specially skilled in such foreign law, science
or art, or in questions as to identity of handwriting or
finger impressions, are relevant facts.
Such persons are called experts."
183. Section 45 permits only the opinion of an expert to
be cited in evidence. This requires determination of the
question as to who is an expert. The only guidance in the
section is that he should be a person "specially skilled" on the
matter. Thus, the only definition of an expert available in
Evidence Act is that he is a person specially skilled in the
subject on which he testifies. The section does not refer to any
particular attainment, standard of study or experience, which
would qualify a person to give evidence as an expert. The next
question is what is the criteria for determining whether a
witness is "specially skilled" or not. The answer to this
question is to be found in decision of Supreme Court in Jai Lal‟s
case (supra) wherein it was held that in order to bring the
evidence of a witness as that of an expert it has to be shown
that he has made a special study of the subject or acquired a
special experience therein or in other words that he is skilled
and has adequate knowledge of the subject.
184. Judged in the said background, can it be said that
the fact that deposition of Dr.Swaroop Vedanand PW-66, that
he had not studied any course in geology, physical geology or
structural geology implies that he was not "specially skilled" to
give opinion about the physical properties of soil.
185. Dr.Swaroop Vedanand PW-66, is a highly qualified
and experienced physicist evident from the fact that he had
pursued M.Sc (Physics), M.Phil and Ph.D and was working in
the FSL since the year 1993. Condensed matter physics or
solid-state physics is a branch of physics that deals with the
physical properties of solid materials. Geology, on the other
hand, is a scientific study of the origin, history and structure of
the earth. Considering that Dr.Swaroop Vedanand is a qualified
and experienced physicist, it can reasonably be expected that
he must have been well versed with the condensed matter
physics and having required knowledge on the subject of
physical properties of the soil. It is also relevant to note that
nothing could be elicited from the cross-examination of
Dr.Swaroop Vedanand which could cast a doubt on the
conclusions arrived at by him in his report.
186. This takes us to the decisions relied upon by the
learned counsel for Sharda Jain.
187. The decision of Supreme Court in Jai Lal‟s case
(supra) is clearly distinguishable from the present case. In said
case, a witness was examined by the prosecution as an expert
on the point of assessment of optimum productive capacity of
the apple orchards. The court noted that the witness in
question had not received any training with respect to
assessment of apple crop and that it was the first time that the
witness assessed the productivity of an apple orchard. It was
further noted by the court that there were glaring omissions
and inadequacies in the report prepared by him. In that
context, it was held that the witness in question cannot be
considered as an expert on the subject of assessment of
productive capacity of apple orchards.
188. The decisions of Supreme Court in S.Gopal Reddy
and Magan Bihari Lal‟s cases (supra) has no application to the
present case. In said cases, Supreme Court was dealing with
the evidence of a handwriting expert. It was held by the court
that evidence of a handwriting expert is a weak type of
evidence and that it is unsafe to treat opinion of a handwriting
expert as sufficient basis for conviction, but that it may be
relied upon when supported by other items of internal and
external evidence.
189. In view of the above discussion, we find no merit in
the submission of learned senior counsel that Dr.Swaroop
Vedanand cannot be considered as an „expert‟ on the subject
of determination of physical properties of the soil as he had
not studied any course in geology.
190. Having repelled the argument advanced by the
learned senior counsel, we hold that the prosecution has been
able to establish that car of Sharda Jain was driven to a spot
where the soil found therein was having similar physical
characteristics as soil found at spot A.
191. The next fact sought to be established by the
prosecution is that Sharda Jain was present in the vicinity of
spot A on 24.08.2002 i.e. the day of the murder of the
deceased. To establish the said fact, reliance was placed by
the prosecution upon the call records Ex.PW-34/A and Ex.PW-
62/A and the testimony of Om Parkash Chauhan PW-11, the
driver of Sharda Jain.
192. With respect to the call records Ex.PW-34/A and
Ex.PW-62/A, it was strenuously argued by learned senior
counsel for Sharda Jain that the said records have not been
proved by the prosecution in the manner required by the law
and thus their genuineness is in doubt.
193. Section 3 of the Evidence Act, 1872 defines
evidence as under:
"Evidence" - Evidence means and includes:-
1)-------------
2) all documents including electronic records
produced for the inspection of the court;"
194. By way of amendment to the Evidence Act, 1872,
incorporated by Act. No. 21 of 2000 following was inserted:
"The expression "Certifying Authority", "digital
signature", "Digital Signature Certificate", "electronic
form", "electronic records", "information", "secure
electronic records", "secure digital signature" and
"subscriber" shall have the meanings respectively
assigned to them in the Information Technology Act,
2000."
195. Section 2 (c) of the Information Technology Act,
2000 reads:
"electronic record" means data, record or data
generated, image or sound stored, received or sent in
an electronic form or micro film or computer
generated micro record."
196. Section 65A and 65B of the Evidence Act, 1872,
inserted by Act No. 21 of 2000 read as under:-
"65A. Special provisions as to evidence relating to
electronic record.
The contents of electronic records may be proved in
accordance with the provisions of Section 65B."
"65B. Admissibility of electronic records.
(1) notwithstanding anything contained in this Act,
any information contained in an electronic record
which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by a
computer (hereinafter referred to as the computer
output) shall be deemed to be also a document, if the
conditions mentioned in this section are satisfied in
relation to the information and computer in question
and shall be admissible in any proceedings, without
further proof or production of the original, as
evidence or any contents of the original or of any fact
stated therein of which direct evidence would be
admissible.
(2) the conditions referred to in Sub-section (1) in
respect of a computer output shall be following,
namely :-
(a) the computer output containing the information
was produced by the computer during the period over
which the computer was used regularly to store or
process information for the purposes of any activities
regularly carried on over that period by the person
having lawful control over the use of the computer;
(b) during the said period, information of the kind
contained in the electronic record or of the kind from
which the information so contained is derived was
regularly fed into the computer in the ordinary course
of said activities;
[c] throughout the material part of the said period,
the computer was operating properly or, if not, then
in respect of any period in which it was not operating
properly or was out of operation during that part of
the period, was not such as to affect the electronic
record or the accuracy of its contents; and
(d) the information contained in the electronic
reproduces or is derived from such information fed
into the computer in the ordinary course of the said
activities.
(3) Where over any period, the function of storing or
processing information for the purposes of any
activities regular carried out on over that period as
mentioned in Clause (a) of Sub-section (2) was
regularly performed by computers, whether -
(a) by a combination of computers operating over
that period; or
(b) by different computers operating in succession
over that period; or
(c) by different combinations of computers operating
in succession over that period; or
(d) in any other manner involving the successive
operation over that period, in whatever order, or one
or more computers and one or more combinations of
computers,
all the computers used for that purpose during that
period shall be treated for the purposes of this
section as constituting a single computer; and
references in this section to a computer shall be
construed accordingly.
(4) In any proceedings where it is desired to give a
statement in evidence by virtue of this section, a
certificate doing any of the following things, that is to
say, -
(a) identifying the electronic record containing the
statement and describing the manner which it was
produced;
(b) giving such particulars of any device involved in
the production of that electronic record as may be
appropriate for the purpose of showing that the
electronic record was produced by a computer;
(c) dealing with any of the matters to which the
conditions mentioned in Sub-section (2) relate,
and purporting to be signed by a person occupying a
reasonable official position in relation to the operation
of the relevant device or the management of the
relevant activities (whichever is appropriate) shall be
evidence of any matter stated in the certificate; and
for the purposes of this sub-section it shall be
sufficient for a matter to be state d to the best of the
knowledge and belief of the person stating it.
(5) For the purposes of this section, -
(a) information shall be taken to be supplied to a
computer if it is supplied thereto in any appropriate
form or whether it is so supplied directly or (with or
without human intervention) by means of any
appropriate equipment;
(b) whether in the course of activities carried on by
any official information is supplied with a view to its
being stored or processed for the purposes of those
activities by a computer operated otherwise than in
the course of those activities, that information, if duly
supplied to that computer shall be taken to be
supplied to it in the course of those activities;
(c) to a computer output shall be taken to have been
produced by a computer whether it was produced by
it directly or (with or without human intervention) by
means of any appropriate equipment.
197. Thus, computer generated electronic records is
evidence, admissible at a trial if proved in the manner
specified by Section 65B of the Evidence Act.
198. Sub-section (1) of Section 65B makes admissible as
a document, paper print-out of electronic records stored in
optical or magnetic media produced by a computer, subject to
the fulfillment of the conditions specified in Sub-section (2) of
Section 65B. Following are the conditions specified by Sub-
section (2):
a) The computer from which the record is generated was
regularly used to store or process information in respect of
activity regularly carried on by a person having lawful control
over the period, and relates to the period over which the
computer was regularly used;
b) Information was fed in the computer in the ordinary course
of the activities of the person having lawful control over the
computer;
c) The computer was operating properly, and if not, was not
such as to affect the electronic record or its accuracy;
d) Information reproduced is such as is fed into computer in
the ordinary course of activity.
199. Under Sub-section (3) of Section 65B, Sub-section
(1) and (2) would apply where single or combination of
computers, is used for storage or processing in the regular
course of activities and the computers used shall be construed
as a single computer.
200. Under Sub-section (5), information shall be taken to
be supplied to a computer by means of an appropriate
equipment, in the course of normal activities intending to store
or process it in the course of activities and a computer output
is produced by it whether directly or by means of appropriate
equipment.
201. The normal rule of leading documentary evidence is
the production and proof of the original document itself.
Secondary evidence of the contents of a document can also be
led under Section 65 of the Evidence Act. Under Sub-clause "d"
of Section 65, secondary evidence of the contents of a
document can be led when the original is of such a nature as
not to be easily movable. Computerised operating systems and
support systems in industry cannot be moved to the court. The
information is stored in these computers on magnetic tapes
(hard disc). Electronic record produced there from has to be
taken in the form of a print out. Sub-section (1) of Section 65B
makes admissible without further proof, in evidence, print out
of a electronic record contained on a magnetic media subject
to the satisfaction of the conditions mentioned in the section.
The conditions are mentioned in Sub-section (2). Thus
compliance with Sub-section (1) and (2) of Section 65B is
enough to make admissible and prove electronic records.
202. Sub-section (4) of Section 65B provides for an
alternative method to prove electronic record. Sub- section (4)
allows the proof of the conditions set out in Sub-section (2) by
means of a certificate issued by the person described in Sub-
section 4 and certifying contents in the manner set out in the
sub-section. The sub-section makes admissible an electronic
record when certified that the contents of a computer printout
are generated by a computer satisfying the conditions of Sub-
section 1, the certificate being signed by the person described
therein.
203. Additionally, irrespective of compliance of the
requirements of Section 65B, there is no bar to adducing
secondary evidence under the other provisions of the Evidence
Act, namely Sections 63 & 65.
204. Therefore, the call records Ex.PW-34/A and Ex.PW-
62/ can be proved by adducing secondary evidence in terms of
Section 63 of Evidence Act or by complying conditions
specified in sub-section (2) or sub-section (4) of section 65B of
Evidence Act.
205. In the instant case, the moot question is whether
the call records have been proved in terms of Section 63 or
Section 65B(2) or Section 65B(4).
206. Inspector V.S.Meena PW-62, has merely deposed
that on 25.08.2002 he obtained the print out Ex.PW-62/A of
the call records of mobile number 9811508688 and that the
said number is registered in the name of Sharda Jain.
207. As already noted in foregoing paras, Gulshan Arora
PW-34, deposed that he has brought the record pertaining to
mobile number 9811508688. As per the record, Ex.PW-34/A is
the call record of the said mobile number pertaining to the
period 24.08.2002 to 26.08.2002.
208. In the instant case, the call records Ex.PW-34/A and
Ex.PW-62/A could not have been proved by any of the modes
prescribed under Section 63 of Evidence Act. Admittedly, no
certificate in terms of Section 65B(4) has been issued in the
present case. The testimonies of Inspector V.S.Meena and
Gulshan Arora also do not fulfil the conditions prescribed under
Section 65B (2) of Evidence Act.
209. In that view of the matter, we hold that the
prosecution has not been able to prove the call records Ex.PW-
34/A and Ex.PW-62/A in the manner required by law.
210. This takes to the analysis of the testimony of Om
Parkash Chauhan PW-11, the driver of Sharda Jain.
211. As already noted in foregoing paras, Om Parkash
Chauhan PW-11, deposed that on 24.08.2002 that at the time
when the deceased and Sharda Jain returned from the rally
Sharda Jain instructed him to go towards Ghaziabad. (It may
be noted here that Ghaziabad is in the vicinity of spot A)
212. To assail the aforesaid testimony of Om Parkash
Chauhan, a submission was advanced by the learned counsel
for Sharda Jain that it is not mentioned in the statement
Ex.PW-11/DA of Om Parkash recorded under Section 161
Cr.P.C. that Sharda Jain instructed him to go towards
Ghaziabad on 24.08.2002 and that the said omission casts a
serious doubt on the truthfulness of the said testimony.
213. To deal with the said submission, the decision of
Supreme Court reported as 2000 (4) SCC 484 Jaswant Singh v
State of Haryana needs to be noted. In the said case, the
evidence of an eye-witness was assailed on the ground that
the witness did not state the details of the injuries inflicted or
of the person who caused the injuries in her statement
recorded under Section 161 Cr.P.C. while the said details were
deposed to by her before the Court. Repelling the above
contention, Supreme Court observed:-
"Section 161(2) of the Code requires the person
making the statements 'to answer truly all questions
relating to such case, put to him by such officer....". It
would, therefore, depend on the questions put by the
police officer. It is true that a certain statement may
now be used under Section 162 to contradict such
witness in the manner provided by Section 145 of the
Indian Evidence Act, 1872. Previously, the law was as
enunciated in Tehsildar Singh & Anr. v. The State of
Uttar Pradesh 1959 (2) SCR 875: as
omissions, unless by necessary implication be
deemed to be part of the statement, cannot be used
to contradict the statement made in the witness-box.
49. Now the Explanation to Section 162 provides that
an omission to state a fact in the statement may
amount to contradiction. However, the explanation
makes it clear that the omission must be a significant
one and 'otherwise relevant' having regard to the
context in which such omission occurs and whether
any omission amounts to a contradiction in the
particular context shall be a question of fact.
50. Reading Section 161(2) of the Criminal Procedure
Code with the Explanation to Section 162, an
omission in order to be significant must depend upon
whether the specific question, the answer to which is
omitted, was asked of the witness. In this case the
Investigating Officer, PW 13 was not asked whether
he had put questions to Gurdeep Kaur asking for
details of the injuries inflicted or of the persons who
had caused the injuries.
214. In the instant case, when the attention of Om
Parkash Chauhan was drawn towards the said omission, he
stated that he disclosed the said fact to the police at the time
when his statement was recorded by the police. Inspector Shiv
Raj Singh PW-55, the scribe of the statement Ex.PW-11/DA was
not asked by defence that whether he put question to Om
Parkash Chauhan asking for details as to what all transpired in
the car of Sharda Jain on 24.08.2002.
215. In view of the dictum laid down by Supreme Court
in Jaswant Singh‟s case (supra) and the failure of defence to
put question pertaining to the omission in question to the
scribe of the statement of Om Parkash Chauhan particularly
when Om Parkash Chauhan stated that he disclosed the said
fact to the police, we find no merit in the aforesaid submission
of learned senior counsel of Sharda Jain.
216. Om Parkash Chauhan has withstood the test of
cross-examination. There was no reason for Om Parkash
Chauhan to give false evidence against Sharda Jain. Thus, we
hold that Om Parkash Chauhan has truthfully deposed that
Sharda Jain instructed him to go towards Ghaziabad on
24.08.2002.
217. The aforesaid testimony of Om Parkash Chauhan
establishes that the car of Sharda Jain was to be driven
towards Ghaziabad on 24.08.2002.
218. Did Sharda Jain go to, or near Ghaziabad on
24.08.2002? Before embarking on the discussion of the
evidence on said issue, we may note at the outset that village
Chajjupur is at a distance of about 22 kms from Ghaziabad and
the canal in which the body of the deceased was found flows
through village Chajjupur. Thus, the relevance of Sharda Jain
being somewhere in the area of Ghaziabad assumes
significance.
219. In her examination under Section 313 Cr.P.C.,
Sharda Jain did not disclose where she went after the rally on
24.08.2002. Neither did she explain as to how mud having
similar characteristics as soil found at spot A was found to be
stuck on her car.
220. In the decision reported as Sucha Singh v State of
Punjab AIR 2001 SC 1436 Supreme Court observed as under:-
"We pointed out that Section 106 of the Evidence Act
is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to
cases where prosecution has succeeded in proving
facts for which a reasonable inference can be drawn
regarding the existence of certain other facts, unless
the accused by virtue of special knowledge regarding
such facts failed to offer any explanation which might
drive the court to draw a different inference."
221. In the instant case, Sharda Jain alone could have
told the court about her movements on 24.08.2002 after going
to the rally. When Sharda Jain withheld that information from
the Court there is every justification for the Court for drawing
the inference that Sharda Jain did go to/around Ghaziabad, in
the light of the testimony of Om Parkash Chauhan that car of
Sharda Jain was to proceed towards Ghaziabad on 24.08.2002
and that mud found stuck on her tyre had similar physical
characterstics as soil found at spot A.
222. The necessary corollary which emerges from the
above fact that Sharda Jain was present at/around Ghazibad on
24.08.2002 is that Sharda Jain made a false claim in her
examination under Section 313 Cr.P.C. that she did not go
towards Ghaziabad on 24.08.2002.
223. Another proved fact is that the deceased died on
24.08.2002 and that the deceased was last seen alive in the
company of Sharda Jain in the afternoon of 24.08.2002. (We
shall be discussing the evidence pertaining to last seen led by
the prosecution shortly herein after)
224. The facts which emerge from the above discussion
can be enumerated as under:-
(i) The body of the deceased was found in a canal.
(ii) Spot A is near the canal in which the body of the
deceased was found downstream.
(iii) The deceased was first murdered and thereafter his body
was thrown into the canal.
(iv) Spot A is upstream of the spot where the body of the
deceased was recovered.
(v) Human blood was found at spot A.
(vi) Car of Sharda Jain was driven to a spot where soil had
similar physical characteristics as soil found at point A. Sharda
Jain‟s car was obviously driven on soft soil and she has not
explained why it was so driven.
(vii) Sharda Jain was present in the vicinity of spot A on
24.08.2002.
225. With reference to our discussion in paras 137 to
139 above, it is apparent that law does not require a 100%
standard of proof before a fact can be said to be proved. A
fact is proved where on the basis of evidence before it, a
reasonable mind would draw a conclusion that the fact is
proved. From the testimony of the driver of Sharda Jain we
have on record the fact that Sharda Jain along with the
deceased was travelling in her car towards Ghaziabad. The
deceased did not return home and was last seen in the
company of Sharda Jain in the afternoon. It can safely be
presumed that the deceased was with Sharda Jain in an area
around Ghaziabad. That mud of same physical characteristics
as of spot A was found stuck in the tyre of the car of Sharda
Jain establishes that Sharda Jain‟s car was driven on lose soil,
characteristic whereof was physically similar to the
characteristic of the soil of spot A or of a similar spot. This
means that the deceased was taken either to spot A or any
other spot where the characteristic of the soil were similar to
that of spot A. The said spot had to be upstream of the spot
where the dead body of the deceased was found. The spot
had to be somewhere near the canal. The fact that human
blood was found at spot A is relevant under Section 11(2) of
the Evidence Act because the said fact in connection with the
preceding facts noted hereinbefore makes the existence of the
fact in issue i.e. whether spot A is the spot where the deceased
was murdered, highly probable. We thus hold that keeping in
view the standard of proof required by the Evidence Act to
treat a fact as proved, the prosecution has successfully proved
that the deceased was killed at spot A.
226. Section 8 of the Evidence Act makes conduct of a
person a relevant fact for the proof of any fact in issue.
Evidence relating to the conduct of an accused person, which
is deposed to by a police officer is admissible as conduct under
Section 8 of the Evidence Act. (See the decision of Supreme
Court reported as Prakash Chand v State AIR 1979 SC 400).
Therefore, the conduct of Sharda Jain leading the police to
place of murder where the deceased was in all probability
murdered is admissible under Section 8 of Evidence Act.
227. What turns on the fact that accused Sharda Jain
pointed out the place of the murder of the deceased. Sharda
Jain could have acquired knowledge that spot A is the place of
murder of the deceased only in one of the ways. Either she
herself was a party to the conspiracy to murder the deceased
and thus was aware that the murder of the deceased was
committed at spot A or somebody else who was a party to the
conspiracy to murder the deceased told Sharda Jain that spot
A is the place of murder of the deceased. No explanation has
been offered by Sharda Jain as to how she came to know that
spot A is the place of murder of the deceased. In such
circumstances, the fact Sharda Jain pointed out the place of
murder of the deceased is a strong pointer towards the guilt of
Sharda Jain.
228. Last Seen Evidence: The next three circumstances
used by the learned Trial Judge to infer the guilt of accused
Sharda Jain are predicated upon the fact that the deceased
was last seen alive in the company of accused Sharda Jain.
229. It needs to seen by us that whether the evidence
led by the prosecution to establish that the deceased was last
seen alive in the company of accused Sharda Jain is
creditworthy or not. If yes, what is the effect thereof?
230. To establish the fact that the deceased was last
seen alive in the company of accused Sharda Jain, the
prosecution examined Sumitra Gupta PW-18, Prabhu Yadav
PW-17, Om Parkash Chauhan PW-11 and Manish Gupta PW-14.
231. As already noted in foregoing paras, the evidence
of Sumitra Gupta PW-18, the wife of the deceased, that the
deceased told her that he would be going to the residence of
Sharda Jain at the time of leaving his residence in the morning
of 24.08.2002 has not been controverted by the defence and
the evidence of Prabhu Yadav PW-17, the driver of Sharda
Jain, that he dropped the deceased at the residence of Sharda
Jain in the morning of 24.08.2002. Likewise, the evidence of
Om Parkash Chauhan PW-11, the driver of Sharda Jain, and
the recording contained in the DD entry PW-6/A that the
deceased was present with Sharda Jain in the car of Sharda
Jain in the afternoon of 24.08.2002 has not been controverted
by the defence.
232. From a perusal of the testimony of Manish Gupta
PW-14, a son of the friend of the deceased, contents whereof
have been noted in para 64 above, it is evident that Manish
happened to see the deceased on 24.08.2002 by chance.
Thus, Manish Gupta PW-14, is a chance witness. The
testimony of a chance witness, although not necessarily false,
is proverbially unsafe. (See the decision of Supreme Court
reported as Guli Chand v State of Rajasthan AIR 1974 SC 276).
Therefore, we do not consider it safe to place any credence
upon his testimony that he had seen that the deceased was
sitting along with Sharda Jain in a car in the afternoon of
24.08.2002.
233. As already noted herein above, Sharda Jain
admitted in her examination under Section 313 Cr.P.C. that the
deceased was present with her till the afternoon of
24.08.2002. It is settled law that the statement made by
accused under Section 313 Cr.P.C. can certainly be taken aid
of to lend credence to the evidence led by the prosecution.
(See the decision of Supreme Court reported as Mohan Singh v
Prem Singh (2002) 10 SCC 236). Therefore, it has conclusively
been established by the prosecution that the deceased was
present with Sharda Jain in the afternoon of 24.08.2002. The
deceased was not seen alive by anyone after the afternoon of
24.08.2002. Thus, the fact of the matter is that the deceased
was last seen alive in the company of Sharda Jain.
234. In this regards, it is relevant to note the following
pertinent observations made by Supreme Court in the decision
reported as Mohibur Rahman v State of Assam AIR 2002 SC
3064:-
"The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was
the accused who committed the crime. There must be
something more establishing connectivity between
the accused and the crime. There may be cases
where on account of close proximity of place and
time between the event of the accused having been
last seen with the deceased and the factum of death
a rational mind may be persuaded to reach an
irresistible conclusion that either the accused should
explain how and in what circumstances the victim
suffered the death or should own he liability for the
homicide." (Emphasis Supplied)
235. A similar view was taken by Supreme Court in the
decision reported as Amit @ Ammu v State of Maharashtra AIR
2003 SC 3131.
236. The reasonableness of the explanation offered by
the accused as to how and when he parted company with the
deceased also has a bearing on the effect of last seen in a
case. In the decision reported as State of Rajasthan v Kashi
Ram AIR 2007 SC 144 Supreme Court observed as under:-
It is not necessary to multiply with authorities. The
principle is well settled. The provisions of Section 106
of the Evidence Act itself are unambiguous and
categoric in laying down that when any fact is
especially within the knowledge of a person, the
burden of proving that fact is upon him. Thus, if a
person is last seen with the deceased, he must offer
an explanation as to how and when he parted
company. He must furnish an explanation which
appears to the Court to be probable and satisfactory.
If he does so he must be held to have discharged his
burden. If he fails to offer an explanation on the basis
of facts within his special knowledge, he fails to
discharge the burden cast upon him by Section 106 of
the Evidence Act. In a case resting on circumstantial
evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him,
that itself provides an additional link in the chain of
circumstances proved against him. Section 106 does
not shift the burden of proof in a criminal trial, which
is always upon the prosecution. It lays down the rule
that when the accused does not throw any light upon
facts which are specially within his knowledge and
which could not support any theory or hypothesis
compatible with his innocence, the Court can consider
his failure to adduce any explanation, as an additional
link which completes the chain. The principle has
been succinctly stated in Re. Naina Mohd. AIR 1960
Madras, 218.
237. From the afore-noted judicial pronouncements, it is
clear that effect of last seen on the guilt of accused depends
upon following four factors:-
(i) Proximity between the time of last seen and time of
death of the deceased.
(ii) Proximity between the place where the deceased was
last seen with the deceased and place of murder of the
deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place
of last seen.
(v) Reasonableness of the explanation offered by the
accused.
238. In the instant case, there is proximity between the
time of last seen and time of death of the deceased inasmuch
as the deceased died on 24.08.2002 and he was last seen
alive in the company of Sharda Jain in the afternoon of
24.08.2002. The place of murder of the deceased was a
secluded area. The explanation offered by Sharda Jain in her
examination under Section 313 Cr.P.C. regarding the
circumstances in which she parted company with the
deceased on 24.08.2002 was that the deceased got down from
her at ISBT. Is the said explanation reasonable and
satisfactory? The answer is an emphatic NO. Sharda Jain has
not stated about her movements after the deceased allegedly
got down from her car. Sharda Jain denied having gone to
vicinity of spot A on 24.08.2002 which claim has been found
false by us.
239. In view of the aforesaid facts, the fact that the
deceased was last seen alive in the company of Sharda Jain is
highly determinative of the guilt of accused Sharda Jain.
240. The next circumstance used by the learned Trial
Judge to infer the guilt of Sharda Jain is that Sharda Jain misled
the family members of the deceased when they made
enquiries from her about the whereabouts of the deceased.
241. As already noted in foregoing paras, Sumitra Gupta
PW-18, the wife of the deceased, and Rajinder Pal Gupta PW-9,
the younger brother of the deceased, deposed that Sharda Jain
gave misleading and false answers to them when they made
enquiries from her about the whereabouts of the deceased.
242. A comparable situation arose before Supreme Court
in the decision reported as Mani Kumar Thapa v State of
Sikkim AIR 2002 SC 2920. In the said case, the accused person
in whose company the deceased was last seen misled the
investigation. One of the reasons which weighed with Supreme
Court in coming to the conclusion that the fact that the
deceased was last seen alive in the company of the deceased
is determinative of the guilt of the accused person was his
conduct of misleading the investigation.
243. We shall be further dwelling on the impact of last
seen evidence in the instant case while summarizing the
evidence against Sharda Jain.
244. The next circumstance used by the learned Trial
Judge to infer the guilt of accused Sharda Jain is that two
meetings took place between accused Sharda Jain, Raj Kumar,
Roshan Singh and Rajinder Singh at the residence of Sharda
Jain few days prior to 24.08.2002.
245. The discussion contained in the impugned
judgment in said respect is as under:-
"The hatching of criminal conspiracy at the house of
Sharda Jain in consultation with her brother Raj
Kumar and two other persons also stands well
established not only from the overall facts and
circumstances of the case but also from the
testimony of her driver PW11-Om Parkash Chauhan.
He clearly stated in his deposition that a few days
prior to 24-8-02 accused Raj Kumar twice came to the
house of Sharda Jain along with two other persons.
Though, it will be worthwhile to mention that this
witness though stated that the said other two persons
were not accused Roshan Singh and Rajinder Singh
but the fact that a meeting did take place between
four persons including accused Sharda Jain and Raj
Kumar at the house of Sharda Jain a few days prior to
24-8-02 becomes relevant when seen and analyzed in
the overall facts and circumstances of the case. I
shall be separately discussing as to how it also stands
established from the record that said two other
persons could be none else but accused Roshan
Singh and Rajinder Singh only and this aspect of the
testimony of PW11 Om Parkash Chauhan cannot be
given much credence." (Emphasis Supplied)
246. Although the learned Trial Judge has held that he
shall be separately discussing that two persons who came
along with accused Raj Kumar to the house of Sharda Jain few
days prior to 24.08.2002 were accused Roshan Singh and
Rajinder Singh, no such discussion is found in the impugned
judgment.
247. The prosecution sought to establish through the
testimony of Om Parkash Chauhan PW-11, the driver of Sharda
Jain, that accused Raj Kumar along with accused Rajinder and
Roshan Singh visited the residence of Sharda Jain on two
occasions just few days prior to 24.08.2002 and that
suspicious talks took place between Sharda Jain and Roshan
Singh during the said visits. However, Om Parkash Chauhan
did not support the case of the prosecution and denied that
accused Raj Kumar was accompanied by accused Rajinder and
Roshan Singh during his visits to the residence of the
deceased or that he heard any talks between Sharda Jain and
Roshan Singh.
248. Accused Raj Kumar is the brother of Sharda Jain.
Being councilor of MCD, Sharda Jain was a public figure and
therefore number of people would have been visiting the office
and residence of Sharda Jain to meet her. The visits in question
could have been casual visits of a brother to meet and inquire
about well being of his sister. The visits could also have been
in connection with the public dealings of Sharda Jain. In such
circumstances, the fact that accused Raj Kumar along with two
unidentified persons visited the residence of Sharda Jain can
hardly be used as an incriminating circumstance against
Sharda Jain particularly when what transpired during the said
visits is not forthcoming on record.
249. Suspicious conduct of Sharda Jain:The next
circumstance used by the learned Trial Judge is that Sharda
Jain went to the house of her driver in the late hours of night
of 24.08.2002
250. The evidence of Om Parkash Chauhan PW-11, the
driver of Sharda Jain, that Sharda Jain sent a fat man to his
residence in the late hours of night of 24.08.2002 and that the
said person told him that Sharda Jain is calling him has not
been controverted by the defence. Likewise, the evidence of
Shanti PW-10, that on occasion a boy came to her house and
told her that Sharda Jain is calling Om Parkash has not been
controverted.
251. In this regards, a submission was advanced by the
learned senior counsel for the defence that there is a serious
contradiction between the evidence of Om Parkash Chauhan
and Shanti inasmuch as Om Parkash deposed that a boy came
to his house to call him while Shanti deposed that Sharda Jain
herself came to her house to call Om Parkash. Counsel urged
that the said material contradiction shows that the witnesses
Om Parkash and Shanti are not truthful witnesses.
252. To appreciate the submission of learned senior
counsel, the following two depositions of Shanti PW-10, made
by her in her testimony need to be noted.
a) (Quote) Once Sharda Jain had come to my resident and
sent a boy inside the house to call my son Om Parkash.
b) (Quote) It was about 12 in the night when one boy came
to me and asked that Om Parkash had been called by Sharda
Jain.
253. Shanti PW-10, is a rustic woman. What should be the
approach of the Court while appreciating ocular evidence of a
rustic witness? The answer to this question lies in the following
observations made by Supreme Court in the decision reported
as Shivaji Sahabrao Bobade & Anr v State of Maharashtra AIR
1973 SC 2622:-
Now to the facts. The scene of murder is rural, the
witnesses to the case are rustics and so their
behavioral pattern and perceptive habits have to be
judged as such. The too sophisticated approaches
familiar in courts based on unreal assumptions about
human conduct cannot obviously be applied to those
given to the lethargic ways of our villages. When
scanning the evidence of the various witnesses we
have to inform ourselves that variances on the
fringes, discrepancies in details, contradictions in
narrations and embellishments in inessential parts
cannot militate against the veracity of the core of the
testimony provided there is the impress of truth and
conformity to probability in the substantial fabric of
testimony delivered.
254. In the backdrop of aforesaid observations of the
Supreme Court, when the afore-noted two depositions are
read harmoniously, the so-called contradiction pointed out by
learned senior counsel is clearly explainable. It is clear that
when Shanti was told by the boy that Sharda Jain is calling her
son, she perceived that Sharda Jain is present outside her
house and has sent the boy inside her house to call her son
and on basis of said perception formed by her, Shanti deposed
that Sharda Jain came to her house.
255. A cumulative reading of the afore-noted
uncontroverted evidence of Om Parkash PW-11 and Shanti
PW-10, establishes that Sharda Jain tried to contact Om
Parkash in the late hours of the night of 24.08.2002. The
learned Trial Judge has not appreciated the evidence of Om
Parkash and Shanti in correct perspective inasmuch as the
conclusion drawn by him from the testimony of said witnesses
that Sharda Jain visited the residence of Om Parkash in the
late hours of the night of 24.08.2002 is incorrect. However, the
circumstance that Sharda Jain tried to contact Om Parkash in
the late hours of night of 24.08.2002 is equally incriminating.
It does not matter that she personally went to the house of her
driver or sent somebody to summon him.
256. In view of above discussion, we hold that the
conduct of Sharda Jain of trying to contact Om Parkash in the
late hours of the night of 24.08.2002 raises strong suspicion
against her and thus is a pointer towards the guilt of accused
Sharda Jain.
257. Motive of Sharda Jain:The last circumstance used
by the learned Trial Judge to infer the guilt of accused Sharda
Jain is the motive of Sharda Jain to commit the crime of
murder of the deceased.
258. As per the case projected by the prosecution in the
charge-sheet (see para 48 above for reference), the motive of
Sharda Jain to commit the murder of the deceased was (i) her
love for deceased because of which she could see the
deceased getting close to Memwati Berwala; (ii) hatred
towards the deceased as the deceased for whom she left her
husband was getting close to Memwati Berwala and (iii)
jealousy as the deceased was promoting the political career of
Memwati Berwala.
259. A perusal of the testimony of the witnesses
examined by the prosecution to prove the motive of Sharda
Jain noted in paras 86 to 96 above shows that Mahender Pal
Gupta PW-8, is the lynchpin of the case set up by the
prosecution pertaining to motive of Sharda Jain.
260. The most important statements in the testimony of
Mahender Pal Gupta is that Sharda told him that she liked the
deceased and that she expressed her displeasure over the fact
that despite the fact that she is the Chairman of Education
Committee the deceased made Memwati Berwala as a Chief
Guest in a function held at a school.
261. The aforesaid deposition of the witness could have
easily been corroborated by the prosecution by adducing
evidence to the effect that Memwati Berwala presided over as
Chief Guest in a function held at a school. However, no such
proof was adduced by the prosecution. Considering the fact
that evidence of Mahender Pal Gupta PW-8 has been found to
be false in respect of pointing out of place of murder of
deceased and identification of the body of the deceased, we
do not consider it safe to place any reliance on the aforesaid
uncorroborated evidence of Mahender Pal Gupta.
262. A close scrutiny of the evidence of Mahender Pal
Gupta reveals that the same suffers from two serious
infirmities. As per Mahender Pal Gupta, after getting elected
as Municipal Councilor, Sharda Jain told him that she „has‟ left
her husband because of her liking for the deceased. The
election in question was held in July 2002 (The said fact was
deposed to by Mahender Pal Gupta). The husband of Sharda
Jain left her in the year 2000 as evident from the reading of
the contents of the DD entries Ex.PW-28/A and Ex.PW-7/A.
Therefore, the deposition of Mahender Pal Gupta that Sharda
Jain told him that she left her husband in the year 2002 is
incorrect. The second infirmity is that Mahender Pal Gupta in
his examination-in-chief deposed that Sharda Jain told him
that she tried to commit suicide on account of the fact that the
deceased was getting close to Memwati Berwala however, in
cross-examination he stated that he does not recollect that
whether any such fact was told to him by Sharda Jain. That
apart, deposition of PW-19 and PW-24, noted in para 93 and
94 above shows that Sharda Jain consumed sulfas on
25.10.2000.
263. This takes us to the remaining evidence adduced
by the prosecution to prove the motive of Sharda Jain.
264. Dr.S.C.Rajput PW-3, was examined by the
prosecution to prove the factum of close relations between
Sharda Jain and the deceased. The close relations were sought
to be inferred from the fact that Sharda Jain used to
accompany the deceased to his visits to the clinic and that she
offered to pay the expenses incurred on the treatment of the
deceased.
265. Has Dr.S.C.Rajput PW-3, proved that the deceased
used to visit his clinic.
266. As already noted in para 88 above, except for the
entries pertaining to the visits of the deceased no other entry
has been recorded in pencil in the entry register Ex.PW-3/A
maintained by the witness. No explanation is forthcoming from
the testimony of the witness as to why only the entries
pertaining to the visits of the deceased have been recorded in
pencil. The witness has also admitted to the factum of
overwriting in the entry register Ex.PW-3/A. In that view of the
matter, no credence can be placed upon the testimony of
Dr.S.C.Rajput PW-3 that the deceased used to visit his clinic.
267. It may be noted here that it was strenuously
argued by learned counsel for Sharda Jain that a perusal of the
entry register PW-3/A shows that an attempt was made by the
prosecution to create false evidence against the accused
persons, which fact has seriously tainted the veracity of the
case of the prosecution. It is settled law that the infirmity in
one piece of evidence adduced by the prosecution does not
render doubtful the whole case of the prosecution.
268. The next piece of evidence pressed into service by
the prosecution to prove that Sharda Jain used to accompany
the deceased during his visits to the clinic of Dr.S.C.Rajput is
the recovery of a denture set from the car of Sharda Jain on
which words „S.C.Rajput‟ were engraved. Nothing turns on the
said fact for the reason the denture set recovered from the car
of Sharda Jain was not put to Dr.S.C.Rajput. He did not
identify the same as prepared by him. Therefore, it has not
been established by the prosecution that the denture set in
question was made by Dr.S.C.Rajput.
269. Another piece of evidence relied upon by the
prosecution to prove the motive of Sharda Jain is that Sharda
Jain attempted to commit suicide. Nothing turns on the said
fact inasmuch as no evidence is forthcoming on record to
show that Sharda Jain attempted to commit suicide on account
of failed relationship with the deceased. On the contrary, the
evidence, noted in paras 93 to 95 above show that she
attempted suicide in the year 2000 when Memwati Barwala
was not even in the scene.
270. The last piece of evidence relied upon by the
prosecution to prove the motive of Sharda Jain is the
photograph Ex.PW-58/A which shows the deceased and
Memwati Berwala standing close to each other in a public
function. (It may be noted here that the function in question is
not the function mentioned by Mahender Pal Gupta in his
testimony) By no stretch of imagination, it can be inferred
from the mere circumstance that the deceased and Memwati
Berwala were standing close to each other that the deceased
and Memwati Berwala were having intimate relations.
271. The net result of the above discussion is that the
prosecution has not been able to prove the motive of Sharda
Jain to commit the murder of the deceased. The prosecution
has failed to establish that the deceased was having intimate
relations with Sharda Jain or Memwati Berwala. The evidence
on record at best shows that the deceased and Sharda Jain
were good friends and nothing more.
272. What is the impact of the failure to prove motive in
the case set up by the prosecution against accused Sharda
Jain.
273. In the decision reported as State of UP v Babu Ram
(2000) 4 SCC 515 it was held:-
"We are unable to concur with the legal proposition
adumbrated in the impugned judgment that motive
may not be very much material in cases depending
on direct evidence whereas motive is material only
when the case depends upon circumstantial
evidence. There is no legal warrant for making such a
hiatus in criminal cases as for the motive for
committing the crime. Motive is a relevant factor in
all criminal cases whether based on the testimony of
eye witnesses or circumstantial evidence. The
question in this regard is whether a prosecution must
fail because it failed to prove the motive or even
whether inability to prove motive would weaken the
prosecution to any perceptible limit. No about, if the
prosecution proves the existence of a motive it would
be well and good for it, particularly in a case
depending on circumstantial evidence, for, such
motive could then be counted as one of the
circumstances. However, it cannot be forgotten that it
is generally a difficult area for any prosecution to
bring on record what was in the mind of the
respondent. Even if the Investigating Officer would
have succeeded in knowing it through interrogations
that cannot be put in evidence by them due to the
ban imposed by law."
274. It is also relevant to note the following observations
of Supreme Court in the decision reported as Ujjagar Singh v
State of Punjab (2007) 14 SCALE 428:-
"It is true that in a case relating to circumstantial
evidence motive does assume great importance but
to say that the absence of motive would dislodge the
entire prosecution story is perhaps giving this one
factor an importance which is not due and (to use the
clichi) the motive is in the mind of the accused and
can seldom be fathomed with any degree of
accuracy"
275. The prosecution has thus established that Sharda
Jain was last seen in the company of the deceased in the
afternoon of 24.8.2002 and thereafter the deceased went
missing. He was killed on the same day. The destination of
the deceased and Sharda Jain was Ghaziabad when they were
last seen together. The place where the dead body of the
deceased was found was a canal flowing from village
Chajjupur which is about 20 kms away from Ghaziabad. The
spot where the deceased was killed is spot A which was not in
the knowledge of the police and its whereabouts surfaced only
after Sharda Jain made her disclosure statement. The spot is
near the embankment of the canal in which, further
downstream the dead body of the deceased was discovered.
Sharda Jain tried to mislead the family members of the
deceased and had tried to surreptitiously contact her driver in
the night with the obvious intention to pressurize him to
withhold truth from the police. Said evidence is sufficient
wherefrom the guilt of Sharda Jain can be inferred. Assuming
that the deceased was not killed at spot A. Removing the said
evidence, the chain of circumstances are still complete
wherefrom an inference of guilt can be drawn against Sharda
Jain. In the decision reported as 2002 (6) SCC 715 Mohibur
Rahman & Anr. Vs. State of Assam, the deceased named Rahul
was last seen on 24.1.1991 at 5:00 PM at a bus stand in the
company of Taijuddin and Mohibur Rahman and his body was
found 13 days after at a distance of 30 km to 40 km from the
bus stand where the deceased and the accused were seen last
alive. Accused Taijuddin had met the mother and the cousin
of the deceased and falsely told them that Rahul i.e. the
deceased had eloped with one Balijan Begum. Acquitting
Mohibur Rahman holding that the proximity of distance and
time having broken, qua Taijuddin the fact that he tried to
mislead the relatives of the deceased coupled with his being
last seen with the deceased were sufficient evidence
wherefrom his guilt could be inferred for the reason he had
also pointed out the place where the dead body of Rahul was
buried. In the decision reported as AIR 1955 SC 801
Deonandan Mishra Vs. State of Bihar a husband and wife were
seen in a train at Chakand Railway Station at around 11:00 PM
in the night. The train passed through Gaya Town. The dead
body of the wife was found at the outskirts of the city of Gaya
the next morning. The husband was convicted on last seen
evidence. This Bench, while deciding a batch of appeals, lead
appeal being Crl.A.No.362/2001 Arvind Vs. State, decided on
10.8.2009, while referring to the decision in Deonandan
Mishra‟s case (supra) had held that with reference to the last
seen evidence theory, the circumstance of the accused and
the victim being co-passengers i.e. starting their journey
together would require an inference to be drawn that they
should reach their destination together and one of them dying
a homicidal death, the other must own up responsibility unless
he explains the circumstance of the two parting company. In
the instant case, the fact that Sharda Jain and the deceased
left together, and the deceased died the same day without
reaching his destination would entitle this Court to draw an
inference against Sharda Jain on last seen evidence alone and
if linked with the attempt made by Sharda Jain to mislead the
family members of the deceased and her attempt to contact
her driver the same night in very suspicious circumstances are
enough to nail her.
276. The net result of the above discussion is that even
ignoring the parts of the faulty reasoning of the learned Trial
Judge and incriminating circumstances relatable thereto, the
prosecution has been able to prove the complicity of accused
Sharda Jain in the conspiracy to murder the deceased.
CASE AGAINST ACCUSESD RAJ KUMAR
277. Visit of accused Raj Kumar to the residence of
Sharda Jain: The first circumstance used by the learned Trial
Judge to infer the guilt of accused Raj Kumar is that he along
with two other persons visited the residence of Sharda Jain on
two occasions just few days prior to 24.08.2002.
278. We have already discussed in paras 246 to 248
above that there is nothing incriminating in the conduct of
accused Raj Kumar in visiting the residence of Sharda Jain
along with two other persons just few days prior to
24.08.2002.
279. Location of residence of accused Raj Kumar: The
next circumstance used by the learned Trial Judge to convict
accused Raj Kumar is that he is a resident of village Gulawati
which is situated in the vicinity of village Chajjupur where the
murder of the deceased was committed.
280. Merely because Raj Kumar was residing at a place
which was situated in the vicinity of the place of the murder of
the deceased can hardly be used as an incriminating
circumstance against him. It could well be a coincidence that
there was close proximity between the place of residence of
accused Raj Kumar and place of the murder of the deceased.
The view taken by the learned Trial Judge that it cannot be
termed as a mere coincidence that accused Raj Kumar is a
resident of village Gulawati and that the entire execution of
the conspiracy happened to take place at near village
Chajjupur, in our opinion is incorrect.
281. Non-denial of accused Raj Kumar to his
acquaintance with other accused persons: - The third
circumstance used by the learned Trial Judge to convict
accused Raj Kumar is that he did not controvert the fact that
he was acquainted with accused Roshan Singh and Rajinder
during the trial.
282. The aforesaid circumstance is factually incorrect
inasmuch as accused Raj Kumar in his statement under
Section 313 Cr.P.C. stated that save and except Sharda Jain he
has never met any other accused person at any point of time
in his life.
283. Sudden arrival of accused Raj Kumar at the
residence of Sharda Jain on the day of her arrest: - The fourth
circumstance used by the learned Trial Judge to convict is the
fact of sudden arrival of accused Raj Kumar at the residence of
Sharda Jain on the day of her arrest.
284. We fail to understand what is incriminating in the
conduct of accused Raj Kumar of arriving at Sharda Jain‟s
residence on the day of her arrest. Sharda Jain is the sister of
accused Raj Kumar.
285. Conduct of accused Raj Kumar in pointing out spot
A: - The fifth circumstance used by the learned Trial Judge to
convict accused Raj Kumar is that he pointed out the place of
murder of the deceased.
286. As already noted in the foregoing paragraphs,
accused Sharda Jain and Raj Kumar pointed spot A (which we
have already held to be the place of murder of the deceased)
to the police. It is not forthcoming from the evidence on record
that which of the accused person first pointed out spot A or
that both the accused persons simultaneously pointed out spot
A. Be that as it may, the fact of the matter is that either one of
the accused person or both of them pointed out spot A to the
police inasmuch as said spot was not in the knowledge of the
police before it was pointed out. In case of Sharda Jain, an
assurance is forthcoming from the evidence on record that she
did point out spot A inasmuch as spot A was known to her
before it was pointed out to police. The said knowledge can be
inferred from the proved facts that Sharda Jain was present in
the vicinity of spot A on 24.08.2002 and that mud found on the
tyre of her car had similar physical characteristics as soil found
at spot A. But, in the case of Raj Kumar, no assurance is
coming from the evidence on record that he did point out spot
A to the police. There is no evidence to show that spot A was
known to accused Raj Kumar before it was pointed out to
police. It is also relevant to note that HC Sunita PW-31, who
was part of the police party which conducted investigation at
spot A on 28.08.2002 deposed that (Quote)„In my presence,
accused Raj Kumar had not pointed out any place in village
Chajjupur.‟ In view of aforesaid deposition of HC Sunita PW-31,
the possibility that Sharda Jain pointed out spot A to police and
pursuant to that accused Raj Kumar was made to point spot A
by the police cannot be ruled out. Therefore, accused Raj
Kumar is entitled to benefit of doubt on said point.
287. Discovery of clues from the disclosure statement of
Raj Kumar: - The next circumstance used by the learned Trial
Judge to infer the guilt of accused Raj Kumar is that the
disclosure statement of accused Raj Kumar provided clues to
the investigating agency.
288. The complicity of accused Pushpender and Nirvikar
in the conspiracy to murder the deceased came to the
knowledge of the police from the disclosure statement of Raj
Kumar.
289. The question which arises is that whether the
information provided by an accused person in his disclosure
statement, which was not in the knowledge of the police, if
receives confirmation by subsequent events, is admissible
under Section 27 of Evidence Act.
290. The answer to the above question lies in the
decision of Supreme Court reported as State (N.C.T. of Delhi) v
Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820. In the said
decision, Supreme Court examined the correctness of the
following submissions advanced by the prosecution:-
"The physical object might have already been
recovered, but the investigating agency may not have
any clue as to the "state of things" that surrounded
that physical object. In such an event, if upon the
disclosure made such state of things or facts within his
knowledge in relation to a physical object are
discovered, then also, it can be said to be discovery of
fact within the meaning of Section 27.
The other aspect is that the pointing out of a material
object by the accused himself is not necessary in order
to attribute the discovery to him. A person who makes
a disclosure may himself lead the investigating officer
to the place where the object is concealed. That is one
clear instance of discovery of fact. But the scope of
Section 27 is wider. Even if the accused does not point
out the place where the material object is kept, the
police, on the basis of information furnished by him,
may launch an investigation which confirms the
information given by accused. Even in such a case, the
information furnished by the accused becomes
admissible against him as per Section 27 provided the
correctness of information is confirmed by a
subsequent step in investigation. At the same time,
facts discovered as a result of investigation should be
such as are directly relatable to the information."
291. After analyzing the case law pertaining to Section
27, Evidence Act in great detail, Supreme Court laid down that
aforesaid arguments do not state correct proposition of law. It
was held by Supreme Court that expression „discovery of fact‟
referred to in Section 27 of Evidence Act cannot be interpreted
to mean a pure and simple mental fact or state of mind
relating to a physical object dissociated from the recovery of
the physical object. In other words it was held that a fact
discovered has to relate to an object recovered i.e. the
recovery of an object and the discovery of a fact go hand in
hand.
292. In view of aforesaid dictum of Supreme Court, the
circumstance that investigating agency got lead from the
disclosure statement of accused Raj Kumar cannot be used
against him.
293. Recovery of wrist watch of the deceased at the
instance of accused Raj Kumar: - The last circumstance used
by the learned Trial Judge to infer the guilt of accused Raj
Kumar is that the wrist watch of the deceased was recovered
at his instance.
294. It may be noted here that the watch recovered at
the instance of the deceased was not an ordinary watch. The
watch was of make Citizen and was having a gold chain.
295. Before proceeding to analyze the evidence
pertaining to recovery of the wrist watch of the deceased, we
note the following pertinent observations made by Lahore High
Court in the decision reported as Shera v Emperor AIR 1943
Null 5:-
"........When the evidence of recovery of stolen
property is attacked, the Court has to examine the
evidence in the light of following alternative
hypothesis: (1) The complainant might have been
persuaded by the police to state in the first
information report that property which in fact was not
stolen had been stolen and to hand over such property
to the police to be used in fabricating recoveries from
the accused persons. This assumes a conspiracy
between informant and the police from the very start.
(2) The police might have obtained property similar to
the stolen property from the complainant or some one
else and used it for the purpose of fabricating the
recoveries. (3) The police might have suppressed
some of the stolen property recovered from an
accused person and utilized it in inventing a recovery
from another person. (4) The property might have
been recovered from a third party and used by the
police in one of the impugned recoveries."
"........In considering the possibility of the second
hypothesis, regard must necessarily be had to the
nature and value of the property recovered. It should
be borne in mind that when a person hands over to
the police valuable property with a view to enable the
police to fabricate a false recovery of this property
from someone else, there is always a possibility of the
accused being acquitted and the owner of the
property being deprived of such property. In the
present case the property recovered consists of
valuable ornaments of gold and silver and I do not
consider that the police procured this property from
someone else with the object of inventing false
recoveries from innocent persons......"
296. The afore-noted four grounds of attack pointed out
by Lahore High Court in Shera‟s case (supra) can be modified
in following manner in case where the recovery effected at the
instance of the accused person is the personal effect of the
deceased person:-
(i) The family members of the deceased might have been
persuaded by the police to state that an article which in fact
was not possessed by the deceased at the time of his death
had been possessed by him and to hand over such article to
the police to be used in fabricating the recoveries from the
accused persons.
(ii) The police might have obtained an article similar to the
article possessed by the deceased at the time of his death
from the family members of the deceased and use it for the
purpose of fabricating the recoveries.
(iii) The police might have suppressed some of the articles
possessed by the deceased at the time of his death recovered
from an accused person and utilized it in inventing a recovery
from another accused person.
(iv) Article in question might have been recovered from a
third party and used by the police in one of the impugned
recoveries.
297. The ground of attack taken in the instant case to
assail the purported recovery of the watch of the deceased at
the instance of the deceased is ground no. (ii) namely, the
police might has procured a watch similar to the watch
possessed by the deceased at the time of his death and has
planted the same on accused Raj Kumar. The said attack is
predicated upon the testimony of Mahender Pal Gupta PW-8,
the photographs Ex.DX and Ex.DX1 of the body of the
deceased taken at the time of its recovery and the manner of
conduct of Test Identification of the watch purportedly
recovered at the instance of accused Raj Kumar.
298. On a first blush, the evidence of Mahender Pal
Gupta PW-8, a friend of the deceased, that a wrist watch was
present on the body of the deceased at the time of its
recovery does strikes a discordant note with the case set up by
the prosecution with regard to recovery of the wrist watch of
the deceased. We therefore proceed to closely scrutinize the
case set up by the prosecution pertaining to the recovery of
the wrist watch of the deceased.
299. To prove the recovery of the wrist watch of the
deceased, the prosecution examined police officials namely,
Inspector V.S.Meena PW-62, Anil Kumar Chauhan PW-44 and SI
Shiv Raj Singh PW-55.
300. The aforesaid police officials have deposed that on
28.08.2002 accused Raj Kumar got recovered the wrist watch
of the deceased from behind a speaker kept at a ventilator in
the balcony of his house. The witnesses have withstood the
test of cross-examination. Nothing could be elicited from their
cross-examination which could cast a doubt on the veracity of
their evidence pertaining to the recovery of the wrist watch of
the deceased.
301. The prosecution further claims that the wrist watch
of the deceased recovered at the instance of accused Raj
Kumar was deposited in the Malkhana on the date of its
recovery itself i.e.28.08.2002. Inspector V.S.Meena PW-62 and
HC Dinesh Kumar PW-43, have categorically deposed to the
said fact. The witnesses have not been cross-examined on the
said point. No suggestions have been given to the witnesses
that the wrist watch of the deceased was not deposited in the
Malkhana on 28.08.2002.
302. If indeed the watch of the deceased was not
recovered at the instance of accused Raj Kumar then the
police would not taken such a huge risk of showing the
recovery of the watch in question before the date of recovery
of the body of the deceased as in all likelihood the body of the
deceased would have shown up with a watch on the wrist of
the deceased.
303. As already noted herein above, no questions were
put to the other witnesses who were present at the time of the
recovery of the body of the deceased namely, Rajinder Pal
Gupta PW-9, Ved Prakash Gupta PW-15, Rajpal Gupta PW-16
and Amrit Lal Singh PW-37, regarding the presence of the wrist
watch on the body of the deceased at the time of its recovery.
304. A perusal of the evidence relating to the recovery of
the body of the deceased shows that Mahender Pal Gupta was
as usual living in his imaginary world and that he was not
paying much attention to the body of the deceased at the time
of its recovery. For instance, Mahender Pal Gupta deposed that
artificial teeth were not found in the jaw of the deceased at the
time of recovery of the body of the deceased, which deposition
is contrary to the recording contained in the post-mortem
report Ex.PW-21/A of the deceased that six artificial teeth were
found in the jaw of the deceased. The deposition of Rajinder
Pal Gupta PW-9, the younger brother of the deceased, that
artificial teeth were found in the jaw of the deceased at the
time of the recovery of the body of the deceased corroborated
the aforesaid recording contained in the post-mortem report of
the deceased.
305. In these circumstances, no benefit can be defence
from the afore-noted evidence of Mahender Pal Gupta
particularly when the evidence pertaining to the date of
deposit of the wrist watch in question in the Malkhana has
gone unrebutted.
306. The photographs Ex.DX and Ex.DX1 have been
minutely looked by us. Nothing much turns on the said
photographs inasmuch as they merely show a mark around the
area of the wrist of the deceased. The photographs in question
do not establish the presence of a watch on the wrist of the
deceased.
307. With regard to the manner of conduct of the Test
Identification of the watch recovered at the instance of
accused Raj Kumar, the learned senior counsel argued
that the Test Identification of the watch in question was
conducted in a most unsatisfactory manner, which fact has
rendered the evidence pertaining to identification of the watch
in question most doubtful. Counsel pointed out that none of
the watches mixed with the watch in question in the TIP were
of make Citizen which made it very easy for the witness who
participated in the TIP to identify the watch recovered at the
instance of accused Raj Kumar as that of the deceased.
308. We agree with the learned senior counsel that the
conduct of TIP of the watch recovered at the instance of
accused Raj Kumar is not up to the mark. Has said fact
vitiated the evidence pertaining to the identification of the
wrist watch recovered at the instance of accused Raj Kumar?
309. In the decision reported as Kanta Prashad v Delhi
Administration AIR 1958 SC 350 it was held by Supreme Court
even though it is prudent to hold a TIP with respect to the
witnesses who do not know accused before the occurrence,
the failure to hold such a proceeding would not make the
evidence of identification inadmissible in the Court. It was
further held that weight to be attached to failure to hold a TIP
would depend upon facts of each case. Where evidence
pertaining to identification is convincing, the failure to hold TIP
would be of no consequence.
310. In this regards, it is also relevant to note the
following observations made by Supreme Court in the decision
reported as Earadrabhappa v State of Kerala AIR 1983 SC
446:-
".....There is no merit in the contention that the
testimony of these witnesses as regards identity of
the seized articles to be stolen property cannot be
relied upon for want of identification of prior test
identification parade. There is no such legal
requirement."
311. Therefore, the mere fact that TIP of the watch in
question was not conducted in an unsatisfactory manner is no
ground to reject the evidence pertaining to identification of the
watch in question. It needs to be seen by us whether said
evidence is creditworthy or not.
312. Rajinder Pal Gupta PW-9, the younger brother of the
deceased, identified the watch recovered at the instance of
accused Raj Kumar as that of the deceased. The witness has
deposed that he used to visit the deceased daily and that the
deceased was wearing the said watch since the year 1996.
Therefore, the witness who had seen the deceased wearing
the watch in question almost daily for about six years could
have easily identified the watch. Nothing could be elicited from
the cross-examination of the witness which could cast a doubt
on the veracity of his testimony.
313. In view of above discussion, we hold that the
prosecution has been able to establish that a watch was
recovered at the instance of accused Raj Kumar and that the
said watch belonged to the deceased.
314. The moot question which now merits consideration
is, as to what turns on the fact that the wrist watch of the
deceased was recovered at the instance of accused Raj
Kumar?
315. The deceased was wearing the wrist watch
recovered at the instance of accused Raj Kumar on
24.08.2002. Sumitra Gupta PW-18, categorically deposed to
the said fact in her testimony. It is significant to note here that
said fact was also stated by Sumitra Gupta in her statement
Ex.PW-62/DB recorded by the police few hours after the
missing of the deceased.
316. In the decision reported as Machi Singh v State of
Punjab AIR 1983 SC 957 one of the factor‟s which weighed
with Supreme Court in coming to the conclusion that the
witness in question was a truthful witness was that the version
of the incident given by witness in court was similar to the
version given by him in his statement to the police which was
recorded four hours after the occurrence.
317. The afore-noted decision brings out that a fact
which is stated by the witness too soon after the incident
generally has a ring of truth attached to it for the reason the
witness did not get much time to cook up a false story or
embellish facts.
318. The watch which was worn by the deceased on the
day of his death i.e. 24.08.2002 was not found on the body of
the deceased at the time of its recovery on 31.08.2002 but
instead was recovered 3 days prior i.e. on 28.08.2002. The
watch of the deceased was an expensive watch as it was
having a gold chain. The possibility that the person who
participated in the conspiracy to murder the deceased was
tempted to remove the watch of the deceased cannot be ruled
out.
319. Being a woman, Sharda Jain could not have single
handedly planned and executed the conspiracy to murder the
deceased. She required contact killers to do the dirty job. She
would have surely required the help of some male person to
give effect to her illegal plans. She definitely would have
turned to a close and trusted male person in whom she could
have confided and who would also agree to help her. The
husband of Sharda Jain had left her. Raj Kumar is the brother
of Sharda Jain. The fact that the wrist watch of the deceased
was recovered at the instance of accused Raj Kumar shows
that Raj Kumar was that close and trusted male person who
helped Sharda Jain in giving effect to her illegal designs. In
view of special circumstances of the case, we hold that the
fact of recovery of wrist watch of the deceased at the instance
of accused Raj Kumar proves the complicity of accused Raj
Kumar in the conspiracy to murder the deceased.
CASE AGAINST ACCUSED RAJINDER SINGH
320. Last seen: The first circumstance used by the
learned Trial Judge to infer the guilt of accused Rajinder Singh
is that the deceased was last seen alive in the company of
accused Rajinder Singh.
321. As already noted in foregoing paras, one of the fact
which led the learned Trial Court to conclude that the
deceased was last seen alive in the company of accused
Rajinder Singh is the admission made by accused Sharda Jain
in her examination under Section 313 Cr.P.C. that accused
Rajinder Singh was present with her and the deceased in her
car on 24.08.2002.
322. It is settled law that a statement made by an
accused in his examination under Section 313 Cr.P.C. cannot
be used against the co-accused.
323. While dealing with Section 342 of the old Code
(corresponding to Section 313 of present Code) in the decision
reported as Narayan Swami v State of Maharashtra AIR 1968
SC 609 Supreme Court observed as under:-
"We have adverted to the above circumstances, only
for the purpose of holding that the learned Sessions
Judge, in coming to the conclusion that the appellant
is guilty, has placed considerable reliance on the
evidence of Dilawar, given in the dacoity case and to
his statement, made under S.342 Cr.P.C., as co-
accused, in the present trial. The legal position is quite
clear, viz., that the evidence, given by Dilawar, in the
dacoity case, cannot be used as evidence against the
appellant, who had no opportunity to cross-examining
Dilawar, in the said case; and the statements of
Dilawar, as co-accused, made under S.342 Cr.P.C., in
the present trial, cannot be used against the
appellant. We are not certainly inclined to accept the
contention of the learned counsel, for the State, that
these very serious illegalities, committed by the
learned Sessions Judge, must be considered to have
been approved, by the learned Judges of the High
Court, when they dismissed the appeal, summarily. In
fact, we are inclined to think, that, by dismissing the
appeal summarily, the learned Judges of the High
Court have omitted to note these serious illegalities,
contained in the judgment of the learned Sessions
Judge. As to whether there is other evidence, on
record, which would justify the conclusion that the
appellant has been rightly convicted, is not a matter
on which it is necessary for us to embark upon, in this
appeal. That is essentially for the High Court, as a
Court of appeal, to investigate, and come to a
conclusion, one way or the other."
324. Therefore, the learned Trial Judge has committed an
illegality by using the admission made by Sharda Jain against
accused Rajinder Singh.
325. Excluding the aforesaid admission of Sharda Jain as
evidence against Rajinder Singh it needs to be seen by us that
whether the prosecution has been able to establish that the
deceased was last seen alive in the company of accused
Rajinder Singh.
326. This takes us to the analysis of the testimony of Om
Parkash Chauhan PW-11, the driver of Sharda Jain and Manish
Gupta PW-14, the son of the friend of the deceased.
327. As already held above, Manish Gupta PW-14, is a
chance witness and thus we do not think it safe to place any
reliance upon his testimony. There is also another
circumstance which casts a serious doubt on the veracity of
his testimony. Manish deposed having identified accused
Roshan Singh when he came to the police station to lodge a
report about the missing of his mobile phone. It is difficult to
fathom why coincidences keep happening in the life of said
witness. He first happened to see the deceased in the car of
Sharda Jain on 24.08.2002 by chance and then happened to
come at the police station by chance at the time when
accused Rajinder Singh was present there. In fact, the whole
story of the witness that he identified accused Rajinder Singh
at the police station when he came there to lodge report about
the missing of his mobile phone is seriously dented by the fact
that no such report was lodged by him. The explanation
offered by him for not lodging the report that the police told
him to first look for the mobile phone in his house is not
plausible.
328. As already noted herein above, Om Parkash
Chauhan PW-11, deposed that accused Rajinder Singh was
present in the house of Sharda Jain in the morning of
24.08.2002. That thereafter he traveled along with the
deceased and accused Sharda Jain in the car of Sharda Jain for
going to Firozshah Kotla ground. He further deposed that when
he got down from the car of accused Sharda Jain on
24.08.2002 Sharda Jain told him that accused Rajinder Singh
would drive the car in his absence and thereafter he saw
accused Rajinder Singh driving the car of Sharda Jain.
329. The aforesaid testimony of Om Parkash Chauhan
PW-11, was not seriously challenged on behalf of accused
Rajinder Singh inasmuch as during the cross-examination a
single suggestion was given to the witness that he was on
leave on 24.08.2002, which suggestion was emphatically
denied by the witness. No other suggestion/question was
given/put to the witness.
330. In view of the fact that aforesaid testimony of Om
Parkash Chauhan has not been serioulsly challenged by the
defence and that Om Parkash Chauhan had no reason to give
false evidence against accused Rajinder Singh, we
holdconclusion that aforesaid testimony of Om Parkash
Chauhan is true.
331. Another fact lends assurance to the above
conclusion drawn by us. Rajinder Singh refused to participate
in the Test Identification Proceedings on the ground that
the witnesses are known to him. The witness who was to
identify accused Rajinder Singh in the TIP was Om Parkash
Chauhan. The said statement of Rajinder Singh that Om
Parkash Chauhan was known to him lends credence to the
testimony of Om Parkash Chauhan that he had seen accused
Rajinder Singh in the house and car of Sharda Jain on
24.08.2002.
332. The aforesaid testimony of Om Parkash Chauhan
establishes two things. One, that the deceased was last seen
alive in the company of accused Rajinder Singh in the
afternoon of 24.08.2002. Two, that accused Rajinder Singh
was driving the car of Sharda Jain in the afternoon of
24.08.2002.
333. Having held that the prosecution has been able to
establish that the deceased was last seen alive in the company
of accused Rajinder Singh, we need to determine the effect of
said circumstance on the guilt of accused Rajinder Singh.
334. In the instant case, there is proximity of time of last
seen and time of death of the deceased.
335. No explanation has been given by accused Rajinder
Singh regarding the circumstances as to when and how he
parted company with the deceased. The response of accused
Rajinder Singh to all the incriminating circumstances put to
him in his examination under Section 313 Cr.P.C. including the
circumstance of last seen was a bald denial.
336. In this regard, few judicial decisions may be noted.
337. In Joseph S/o Kooveli Poulo v. State of Kerala 2000
CriLJ 2467 (SC); the facts were that the deceased was an
employee of a school. The appellant representing himself to be
the husband of one of the sisters of Gracy, the deceased, went
to the St. Mary's Convent where she was employed and on a
false pretext that her mother was ill and had been admitted to
a hospital took her away with the permission of the Sister in
charge of the Convent, PW-5. The case of the prosecution was
that later the appellant not only raped her and robbed her of
her ornaments, but also laid her on the rail track to be run over
by a passing train. It was also found as a fact that the
deceased was last seen alive only in his company, and that on
information furnished by the appellant in the course of
investigation, the jewels of the deceased, which were sold to
PW-11 by the appellant, were seized. There was clear evidence
to prove that those jewels were worn by the deceased at the
time when she left the Convent with the appellant. When
questioned under Section 313 Cr.P.C., the appellant did not
even attempt to explain or clarify the incriminating
circumstances inculpating and connecting him with the crime
by his adamant attitude of total denial of everything. In the
background of such facts, Supreme Court held:
"Such incriminating links of facts could, if at all, have
been only explained by the appellant, and by nobody
else, they being personally and exclusively within his
knowledge. Of late, courts have, from the falsity of the
defence plea and false answers given to court, when
questioned, found the missing links to be supplied by
such answers for completing the chain of incriminating
circumstances necessary to connect the person
concerned with the crime committed. That missing link
to connect the accused appellant, we find in this case
provided by the blunt and outright denial of every one
and all the incriminating circumstances pointed out
which, in our view, with sufficient and reasonable
certainty on the facts proved, connect the accused
with the death and the cause for the death of Gracy."
338. In Ram Gulam Chaudhary and Ors. v. State of Bihar;
AIR 2001 SC 2842 the facts proved at the trial were that the
deceased boy was brutally assaulted by the appellants. When
one of them declared that the boy was still alive and he should
be killed, a chhura blow was inflicted on his chest. Thereafter,
the appellants carried away the boy who was not seen alive
thereafter. The appellants gave no explanation as to what they
did after they took away the boy. The question arose whether
in such facts Section 106 of the Evidence Act applied. Supreme
Court held as under:
"In the absence of an explanation, and considering the
fact that the appellants were suspecting the boy to
have kidnapped and killed the child of the family of
the appellants, it was for the appellants to have
explained what they did with him after they took him
away. When the abductors withheld that information
from the court, there is every justification for drawing
the inference that they had murdered the boy. Even
though Section 106 of the Evidence Act may not be
intended to relieve the prosecution of its burden to
prove the guilt of the accused beyond reasonable
doubt, but the section would apply to cases like the
present, where the prosecution has succeeded in
proving facts from which a reasonable inference can
be drawn regarding death. The appellants by virtue of
their special knowledge must offer an explanation
which might lead the Court to draw a different
inference."
339. In Sahadevan alias Sagadevan v. State represented
by Inspector of Police, Chennai AIR 2003 SC 215, the
prosecution established the fact that the deceased was seen in
the company of the appellants from the morning of March 5,
1985 till at least 5 p.m. on that day when he was brought to
his house, and thereafter his dead body was found in the
morning of March 6, 1985. In the background of such facts
Supreme Court observed:
"Therefore, it has become obligatory on the appellants
to satisfy the court as to how, where and in what
manner Vadivelu parted company with them. This is
on the principle that a person who is last found in the
company of another, if later found missing, then the
person with whom he was last found has to explain
the circumstances in which they parted company. In
the instant case the appellants have failed to
discharge this onus. In their statement under Section
313 Cr.P.C. they have not taken any specific stand
whatsoever".
340. In this view of the matter, we hold that the fact that
the deceased was last seen alive in the company of accused
Rajinder Singh is determinative of the guilt of accused Rajinder
Singh.
341. False defence taken by accused Rajinder Singh: The
next circumstance used by the learned Trial Judge to infer the
guilt of accused Rajinder Singh is that a false defence was
taken by accused Rajinder Singh.
342. The defence taken by accused Rajinder Singh in his
statement under Section 313 CrPC that he does not know
Sharda Jain and has never visited her residence has already
been found to be false.
343. It is settled law that a false defence taken by an
accused can be taken as an additional link in the chain of
circumstances against him.
345. In the decision reported as Swapan Patra and Ors.
v. State of W.B., (1999) 9 SCC 242 Supreme Court held as
under :-
"It is well settled that in a case of circumstantial
evidence when the accused offers an explanation and
that explanation is found to be untrue then the same
offers an additional link in the chain of circumstance to
complete the chain. Applying the aforesaid principle,
we have no hesitation to hold that the circumstances
established in the case complete the chain of
circumstances to prove the charge of murder against
the appellant Swapan Patra and, therefore, the
conviction of appellant Swapan Patra has to be upheld
under Section 302 IPC. So far as the other two
appellants are concerned, as stated earlier, in the
absence of any positive evidence even about their
presence in the house at the relevant point of time, it
is difficult to rope them in even if all other
circumstances narrated earlier are established and,
therefore, they are entitled to an order of acquittal."
346. In the decision reported as State of Maharashtra v.
Suresh, (2000) 1 SCC 471, Supreme Court held as under :-
"It is regrettable that the Division Bench had
practically nullified the most formidable incriminating
circumstance against the accused spoken to by PW 22
Dr. Nand Kumar. We have pointed out earlier the
injuries which the doctor had noted on the person of
the accused when he was examined on 25.12.1995.
The significant impact of the said incriminating
circumstance is that the accused could not give any
explanation whatsoever for those injuries and
therefore he had chosen to say that he did not sustain
any such injury at all. We have no reason to disbelieve
the testimony of PW 22 Dr. Nand Kumar. A false
answer offered by the accused when his attention was
drawn to the aforesaid circumstance renders that
circumstance capable of inculpating him. In a situation
like this such a false answer can also be counted as
providing "a missing link" for completing the chain."
347. Non-denial of accused Rajinder Singh to his
acquaintance with accused Roshan Singh: The last
circumstance used by the learned Trial Judge to infer the guilt
of accused Rajinder Singh is that accused Rajinder Singh did
not deny the fact that he was temporarily employed with
accused Roshan Singh as a driver.
348. The aforesaid circumstance is factually incorrect
inasmuch as accused Rajinder Singh in response to question
no.3 put to him in his examination under Section 313 Cr.P.C.
has vehemently denied that he was temporarily employed
with accused Roshan Singh as a driver. No evidence has been
led by the prosecution to show that accused Rajinder Singh
and Roshan Singh were known to each other or employment
of accused Rajinder Singh with accused Roshan Singh. The
only document on record showing the acquaintance of
accused Rajinder Singh with accused Roshan Singh is the
disclosure statement of accused Rajinder Singh, contents of
which document are completely inadmissible in evidence.
349. But we find yet another circumstance which points
towards the culpability of accused Rajinder Singh. The same
has escaped the notice of the learned Trial Court.
350. It has already been held by us that accused
Rajinder Singh was driving the car of Sharda Jain in the
afternoon of 24.08.2002 and that the deceased and accused
Sharda Jain were present in the said car at that time. It has
further been held by us that spot A is the place of murder of
the deceased and that Sharda Jain was present at/around spot
A on 24.08.2002. Accused Sharda Jain reached at/around spot
A by her car which is evident from the fact that mud found
stuck on the tyre of car of Sharda Jain has similar physical
characteristics as soil found at spot A. The date of death of the
deceased is 24.08.2002. The car of Sharda Jain was found by
the police at the residence of Sharda Jain on 27.08.02. How did
the car of Sharda Jain come back from spot A? Accused
Rajinder Singh has not given any explanation regarding his
movements on 24.08.2002. In such circumstances, this Court
is justified in inferring from the above proved facts that
accused Rajinder Singh drove the car of Sharda Jain which was
occupied by Sharda Jain and the deceased to spot A on
24.08.2002 and thereafter he drove the car of Sharda Jain
back from spot A after the conspiracy to murder the deceased
was executed.
351. The net result of the above discussion is that the
prosecution has been able to prove the complicity of accused
Rajinder Singh in the conspiracy to murder the deceased.
CASE AGAINST ACCUSED ROSHAN SINGH
352. Abscondence of accused Roshan Singh: The first
circumstance used by the learned Trial Judge to infer the guilt
of accused Roshan Singh is the abscondence of accused
Roshan Singh.
353. The prosecution has sought to establish the
abscondence of the deceased through the fact that the car of
accused Roshan Singh was lying as unclaimed at Malkhana
from 09.09.2002 to 22.11.2002 till the time the custody of the
said car was obtained by Inspector V.S.Meena PW-62.
354. As already noted in foregoing paras, the evidence
of that SI Kalicharan PW-57, that one Maruti 800 car bearing
registration no.DDU-1371 was lying as unclaimed at Malkhana
from 09.09.2002 to 22.11.2002 till the time the custody of the
said car was obtained by Inspector V.S.Meena PW-62 and the
evidence of Prabhat Kumar Chaurisia PW-64, that he sold
Maruti 800 car bearing registration no.DDU-1371 to accused
Roshan Singh has not been controverted by the defence.
Therefore, the prosecution has been able to prove the fact that
the car of accused Roshan Singh was lying as unclaimed at
Malkhana since a considerable period which in turn establishes
the abscondence of accused Roshan Singh.
355. At this juncture, a submission advanced by learned
counsel for accused Roshan Singh deserves consideration.
Counsel submitted that pieces of evidence pertaining to
abscondence of accused Roshan Singh were not put to him in
his examination under Section 313 CrPC, and therefore
circumstance pertaining to abscondence cannot be used
against him. In support of the said submission, counsel placed
reliance upon the decision of Supreme Court reported as
Sharad Birdhichand Sarda v State of Maharashtra AIR 1964 SC
1622.
356. It is no doubt true that the underlying object behind
Section 313 Cr.P.C. is to enable the accused to explain any
circumstance appearing against him in the evidence and this
object is based on the maxim audi alteram partem which is
one of the principles of natural justice. It has always been
regarded unfair to rely upon any incriminating circumstance
without affording the accused an opportunity of explaining the
said incriminating circumstance. The provision in Section 313,
therefore, makes it obligatory on the court to question the
accused on the evidence and circumstances appearing against
him so as to apprise him the exact case which he is required to
meet. But it would not be enough for the accused to show that
he has not been questioned or examined on a particular
circumstance but he must also show that such non-
examination has actually and materially prejudiced him and
has resulted in failure of justice. In other words in the event of
any inadvertent omission on the part of the court to question
the accused on any incriminating circumstance appearing
against him the same cannot ipso facto vitiate the trial unless
it is shown that some prejudice was caused to him.
357. In taking said view, we are supported by the
decision of Supreme Court reported as Bejoy Chand Patra v
State of WB AIR 1952 SC 105 where it was observed as under:-
"The last contention put forward by the learned
counsel for the appellant was that he was not
examined as required by law under section 342 of the
Criminal Procedure Code.......To sustain such an
argument as has been put forward, it is not sufficient
for the accused merely to show that he has not been
fully examined as required by section 342 of the
Criminal Procedure Code, but he must also show that
such examination has materially prejudiced him."
358. In this regards, it is also relevant to quote following
observations made by Supreme Court in a recent decision
reported as State of Rajasthan v Kashi Ram AIR 2007 SC 144:-
"Learned Counsel submitted that the aforesaid
statement of PW-2 was not specifically put to the
accused when he was examined under Section 313
Cr.P.C.. That may be so, but in the facts of the case,
we find that by such omission no prejudice has been
caused to the appellant. Mamraj, PW-2 had deposed
in his presence and was exhaustively cross-examined
by counsel appearing for him. The statement of
Mamraj, PW-2 regarding his having seen the
deceased last in the company of the respondent was
not even challenged in his cross-examination.
Moreover, from the trend of the answers given by the
respondent in his examination under Section 313
Cr.P.C., it appears that the respondent made only a
bald denial of all the incriminating circumstances put
to him, and had no explanation to offer."
359. It is apparent from a perusal of the afore-noted
observations of Supreme Court in Kashi Ram‟s case (supra)
that the factors which weighed with the Court in coming to the
conclusion that no prejudice was caused to the accused due to
irregularities in his examination under Section 313 Cr.P.C.
were that the evidence of the witness which was not put to
him in his examination under Section 313 Cr.P.C. was not
cross-examined by the accused and that the accused made a
bald denial of all the incriminating circumstances put to him.
360. A perusal of the examination of accused Roshan
Singh under Section 313 Cr.P.C. shows that three questions
were put to Roshan Singh regarding his abscondence. The first
question is question no.37 in which the fact that a wireless
message was flashed to all SSPs and SHOs in India to trace
him was put to him. The second question is question no.43 in
which the fact that Inspector V.S.Meena obtained non-bailable
warrants against him as he was evading arrest was put to him.
The third question is question no.50 in which the fact that
Inspector V.S.Meena sought initiation of proceedings under
Section 82-83 Cr.P.C. against him as he was evading arrest
was put to him. The response of accused Roshan Singh to the
aforesaid questions was ignorance. Therefore, it is not the case
that accused was completely unaware of the fact that the
prosecution would be using his abscondence as an
incriminating circumstance against him.
361. Accused Roshan Singh has not controverted the
testimonies of the witnesses examined by the prosecution to
establish his abscondence. He made a bald explanation of all
the incriminating circumstances put to him, and had no
explanation to offer.
362. In such circumstances, keeping in view the afore-
noted observations of Supreme Court in Kashi Ram‟s case
(supra) it has to be held that no prejudice has been caused to
accused Roshan Singh on account of the fact that the evidence
that his car was lying deposited at Malkhana was not put to
him under Section 313 Cr.P.C.
363. Close relations of accused Roshan Singh with other
accused persons: The next circumstance relied upon the
learned Trial Judge is that accused Roshan Singh was closely
associated with accused Rajinder Singh, Pushpender and
Nirvikar.
364. The aforesaid circumstance cannot be taken as an
incriminating circumstance against accused Roshan Singh
inasmuch as no evidence has been led by the prosecution to
establish that accused Roshan Singh was closely associated
with accused Rajinder Singh, Pushpender and Nirvikar.
365. Place of arrest of accused Roshan Singh: The next
circumstance against accused Roshan Singh is that he was
arrested at Hoshangabad, M.P. and that there was no occasion
for accused Roshan Singh to be present at said place.
366. With respect to aforesaid circumstance, suffice
would it be to state that said circumstance shows that accused
Roshan Singh was absconding and the circumstance of
abscondence of Roshan Singh has already been used as an
incriminating circumstance against him.
367. No reason for false implication of accused Roshan
Singh: The next circumstance relied upon by the learned Trial
Judge to infer the guilt of accused Roshan Singh is that no
reason has been given by him for his false implication in the
present case.
368. We do not consider it proper to infer the guilt of
accused Roshan Singh from the aforesaid circumstance.
369. Pointing out of places of murder of the deceased
and the disposal of body of the deceased by accused Roshan
Singh: The next circumstance used by the learned Trial Judge
to infer the guilt of accused Roshan Singh is that accused
Roshan Singh pointed out the place of murder of the deceased
as also the place from where the body of the deceased was
thrown into the canal.
370. Insofar as pointing out of place of murder of the
deceased is concerned, nothing turns on the same as the said
place was already in the knowledge of the police. Likewise,
nothing turns on the fact that accused Roshan Singh pointed
out the place from where the body of the deceased was
thrown into the canal for the reason there is no evidence to
show that the place pointed out by accused Roshan Singh was
the place from where the body of the deceased was thrown
into the canal.
371. Recovery of country made pistols and the gold ring
of the deceased at the instance of accused Roshan Singh: The
last circumstance used by the learned Trial Judge to infer the
guilt of accused Roshan Singh is that two country made pistols
and the gold ring of the deceased were recovered at the
instance of accused Roshan Singh.
372. Insofar as recovery of country made pistols is
concerned, suffice would it be to state that it is settled legal
position that the connection between the object recovered and
the offence with which an offence is charged must always be
established by evidence „alinude‟. In the instant case, there is
no evidence to show that the pistols recovered at the instance
of accused Roshan Singh were used to murder the decassed.
Therefore, the circumstance pertaining to recovery of country
made pistols at the instance of accused Roshan Singh cannot
be used as an incriminating piece of evidence against accused
Roshan Singh.
373. Insofar as the recovery of the gold ring of the
deceased is concerned, the ground of attack taken by the
defence to assail the said recovery is that the family members
of the deceased falsely stated that the ring in question was
worn by the deceased on 24.08.2002 and the police took the
ring in question from wife of the deceased and planted the
same on accused Roshan Singh. It be noted here that a
suggestion was given to the wife of the deceased that the
Investigating Officer collected the ring in question from her on
18.12.2002 for the purposes of planting it upon accused
Roshan Singh.
374. It may be noted here that the prosecution
examined Inspector V.S.Meena PW-62, SI Sukaram Pal PW-39
and SI Anil Kumar Chauhan PW-44, to prove the said recovery.
The aforesaid police officials deposed that a ring was got
recovered by accused Roshan Singh from his residence.
Sumitra Gupta PW-18, the wife of the deceased and Baldev
Kumar PW-52, the jeweler who sold the ring to the deceased
identified the ring recovered at the instance of accused
Roshan Singh as that of the deceased. Nothing could be
elicited from the cross-examination of the said witnesses
which could cast a doubt upon the veracity of the said
witnesses.
375. As already noted herein above, the evidence of
Sumitra Gupta PW-18, the wife of the deceased, that the
deceased was wearing a gold ring on 24.08.2002 has a ring of
truth attached to it inasmuch as she stated the said fact in her
statement to the police which was recorded just few hours
after the missing of the deceased.
376. A close scrutiny of the defence taken by accused
Roshan Singh with respect to recovery of the ring in question
reveals that the said defence has no merit. As per accused
Roshan Singh, the ring in question was collected by the
Investigating Officer from the wife of the decased on
18.12.2002. The evidence of Inspector V.S.Meena PW-62 and
HC Dinesh Kumar PW-43, that the ring in question was
deposited in the Malkhana on 22.11.2002 has not been
controverted on behalf of accused Roshan Singh. Therefore,
when the ring in question was deposited in Malkhana on
22.11.2002 where is the occasion for the Investigating Officer
collecting it from the wife of the deceased on 18.12.2002.
377. In view of above circumstances, we thus hold that
the prosecution has been able to establish that a gold ring was
recovered at the instance of accused Roshan Singh and that
the said ring belonged to the deceased.
378. Testimony of Subash PW-38: The last circumstance
used by the learned Trial Judge to infer the guilt of accused
Roshan Singh is that the testimony of Subash PW-38,
establishes that the body of the deceased was thrown into the
canal by accused Roshan Singh.
379. A perusal of the testimony of Subash PW-38,
contents whereof has been noted in para 98 above, shows that
Subash was an „inimical witness‟ evident from the accused
Roshan Singh defeated the father of the witness in an election
and that Subash was a signatory to a complaint lodged against
accused Roshan Singh.
380. Inimical witnesses are not necessarily false
witnesses though the fact that said witnesses have personal
interest or stake in the matter must put the Court on its guard
and thus the evidence of such witnesses must be subjected to
close scrutiny. (See the decision of Supreme Court reported as
Chander Mohan Tiwari v State of MP AIR 1992 SC 891.
381. A close scrutiny of evidence of Subash PW-38
reveals that he is not a truthful witness. He claims that
through the newspaper reports, after three or four days of the
dead body of Atma Ram Gupta being recovered he realized
that the dead body of which he had informed Roshan Singh
was that of Atma Ram Gupta. How could he do so remains a
mystery for the reason Subash does not claim that he saw the
dead body about which the children of the village had told him.
He has deposed that when the children told him about a dead
body near the Dak Bangla he proceeded to inform the police
and on the way met Roshan Singh.
382. Another fact which has cast a serious doubt on the
testimony of Subash is that Subash did not come forward till
about three months to report the police about the facts known
to him about the body of the deceased. The learned Trial Court
has also noticed the said fact but has not attached due
importance to the same on the ground that Subash is a rustic
villager and thus it could not be expected of him that he would
approach the police on his own particularly when the matter is
high profile. The aforesaid explanation given by the learned
Trial Court to justify suspicious conduct of Subash is clearly
untenable. He is not a rustic villager as has been projected by
the learned Trial Judge. He was signatory to a complaint
lodged against accused Roshan Singh. His family members
used to contest the elections. Neither was he afraid to get
involved in the present matter because had that been the case
he would not have come forward at all to report the matter to
the police.
383. Keeping in view the fact that Subash is an inimical
witness, the serious discrepancy appearing in his evidence and
his suspicious conduct, we do not consider it safe to place any
reliance upon the testimony of Subash.
384. Thus, there are only two incriminating
circumstances against Roshan Singh. Firstly the recovery of
gold ring of the deceased at the instance of accused Roshan
Singh. The second is his abscondence after the day of the
murder of the deceased. The two are sufficient to conclude his
guilt.
CASE AGAINST ACCUSED PUSHPENDER AND NIRVIKAR
385. Recovery of the I-cards of the deceased at the
instance of accused Pushpender and Nirvikar: The first
circumstance used by the learned Trial Judge to infer the guilt
of accused Pushpender and Nirvikar is that the I-cards of the
deceased were recovered at their instance.
386. Before we proceed to discuss the aforesaid
circumstance, we note few judicial decisions.
387. The first decision is Rex v Jora Hasji 11 Bom H.C.R.
242 wherein West J. observed that „we must not under cover of
this provision allow the discovery of ordinary articles like
lathis, knives, sticks and clothes to be introduced so as to
admit what are practically confessions to the police and that
the discovery ought to be of a fact which is directly connected
with the crime apart from the statement itself.
388. The second decision is State v Wahid Bux AIR 1953
All 314 wherein it was observed as under:-
"Further the articles recovered were of a very ordinary
type. For instance, from Waliid Bux a Dua, a Jugnu and
a patta were recovered. From Dori completely torn
coat and a dhoti were recovered. From Chandu a lota,
a tumbler, a longe were recovered. Nothing was
recovered from the other respondents. These articles
were of ordinary kind and could be found with
anybody in the village and the witnesses did not point
out any special features or marks of identification on
them. They were not able to say to whom the articles
belonged. In this view of the matter the learned
Sessions Judge did not draw any inference from the
fact that these articles were recovered from the
possession of the aforesaid respondents. We arc of
opinion that the learned Sessions Judge was right in
rejecting the testimony relating to the recovery of the
articles."
389. The third decision is Shera v Emperor AIR 1943 Null
5 relevant portion whereof has already been noted in para 295
above.
390. A combined reading of the afore-noted judicial
decisions shows that the effect of recovery of an ordinary
article on the culpability of an accused is different vis-a-vis
recovery of a valuable article. The reason is obvious. While an
ordinary article can easily be procured and planted upon an
accused person the same is not the case with a valuable
article as pointed out by Lahore High Court in Shera‟s case
(supra).
391. Another legal principle is discernible from Jora
Hasji‟s case (supra); that recoveries can be of two kinds;
namely, (1) Those which directly connect the accused to the
offence; (2) Those which may be of an incriminating nature but
do not suggest any direct connection of the accused in the
commission of offence.
392. In this regards, it is most apposite to note the
decision of Supreme Court reported as Bhagwan Singh v State
of MP AIR 2003 SC 1088 wherein it was observed as under:-
"In these circumstances, the evidence of recoveries of
certain articles of the deceased on the alleged
information, given by the accused is concerned, such
evidence in itself is too weak a piece of evidence to
sustain the conviction of the accused. The trial Judge
has held that the recovery of a bottle under
memorandum (Ex.P13) which is an article too ordinary
to be stolen and religious book 'Vishram Sagar' with
spectacles belonging to the house of the deceased
were articles of title value which no accused would
have carried after committing a crime."
393. From the afore-noted decision the legal principle
which can be culled out is that the effect of recovery of a
useless article on the culpability of an accused person is nil.
394. I-cards purportedly recovered at the instance of
accused Pushpeder and Nirvikar are useless articles and are
not directly connected with the crime of the murder of the
deceased. Therefore, in view of the above discussion, the said
recoveries cannot be taken as pointer to the complicity of
accused Pushpender and Nirvikar in the conspiracy to murder
the deceased.
395. Be that as it may, the evidence led by the
prosecution in said regard as also the circumstances
surrounding the recoveries in question are suspicious.
396. The membership of the deceased in the
organization which has issued the I-card to the deceased
purportedly recovered at the instance of accused Pushpender
expired in the year 1995. Why would the deceased be carrying
an I-card pertaining to a membership which has long expired
in his pocket?
397. Ram Chander PW-20, a witness to the recovery of I-
card pertaining to accused Pushpender deposed that no I-card
was found in the possession of accused Pushpender at the
time when he conducted a primary search of accused at the
time of his arrest. Where did the I-card materialize from if the
same was not found in the primary search?
398. The above two unanswered questions seriously
vitiates the case set up by the prosecution with regard to the
recovery of I-card of the deceased at the instance of accused
Pushpender.
399. With regard to accused Nirvikar, it is most relevant
to note that the disclosure statement of Nirvikar does not
contain a word about the I-card of the deceased.
400. In this regards, it is most relevant to note following
observations of Supreme Court in the decision reported as
Pohalaya Motya Valvi v State of Maharashtra AIR 1979 SC
1949:-
"The High Court uses the pronoun 'I' at two places.
We, with the assistance of both the learned Counsel
proficient in Marathi language read the original
statement. The reading of the statement by the High
Court appears to be far-fetched. Even the High Court
is conscious of it when it observes in para 20 of the
judgment that the authorship of the act of
concealment of the spear would be implied and would
be none other than the appellant, and then observes
that this circumstance which is one of the strongest
links stands duly established. The Marathi word 'Me' is
to be found at the commencement of the statement
followed by the wholly inadmissible portion and then
there is reference to the place where the spear was
hidden. The Marathi expression 'Thevalela' would
more appropriately be translated has been kept and
not 'I have kept' because in the case of 'Have kept it,'
the Marathi word would be 'Thevala'. It may be that
being not conversant with Marathi language our
translation may not be appropriate but if this recovery
of bloodstained spear is the only important
circumstance of an incriminating character established
in this case and if the authorship of concealment is not
clearly borne out by cogent and incontrovertible
evidence but as the High Court observes left to be
inferred by implication, we have considerable
hesitation in placing implicit reliance upon it. More so
when it is a confessional statement which becomes
admissible under Section 27 of Evidence Act though
made in the immediate presence of a Police Officer.
The recovery of a bloodstained spear becomes
incriminating not because of its recovery at the
instance of the accused but the element of criminality
tending to connect the accused with the crime lies in
the authorship of concealment, namely, that the
appellant who gave information leading to its
discovery was the person who concealed it. And in this
case Bhamta was another co-accused. The appellant
may have only the knowledge of the place where it
was hidden. To make such a circumstance
incriminating it must be shown that the appellant
himself had concealed the bloodstained spear which
was the weapon of offence and on this point the
language used in the contemporaneous record Ext. 28
is not free from doubt and when two constructions are
possible in a criminal trial, the one beneficial to the
accused Will have to be adopted. Therefore, this
linchpin of the prosecution case ceases to provide any
incriminating evidence against the appellant."
401. Accused Nirvikar is on a better footing than the
accused before Supreme Court in Pohalaya‟s case (supra). The
disclosure statement of Nirvikar does not contains a word
about I-card of the deceased, much less a recording pertaining
to authorship of the concealment of the said I-card.
402. In such circumstances, we reject the evidence
pertaining to the recovery of the I-cards of the deceased.
403. Unemployment of accused Pushpender and
Nirvikar: The next circumstance relied upon by the learned
Trial Judge to infer the guilt of accused Pushpender and
Nirvikar was that they were unemployed. Merely because
accused Pushpender and Nirvikar were unemployed does not
mean that they participated in the conspiracy to murder the
deceased.
404. Pointing out of place of murder of the deceased by
accused Pushpender and Nirvikar: The next circumstance used
by the learned Trial Judge to infer the guilt of accused
Pushpender and Nirvikar is that they pointed out the place of
murder of the deceased. Nothing turns on the same as the
said place was already in the knowledge of the police.
405. Discovery of clues from the disclosure statement of
Pushpender and Nirvikar: - The next circumstance used by the
learned Trial Judge to infer the guilt of accused Pushpender
and Nirvikar is that the disclosure statement of accused
Pushpender and Nirvikar provided clues to the investigating
agency.
406. The aforesaid circumstance is factually incorrect
inasmuch as the police did not get any clues from the
disclosure statements of accused Pushpender and Nirvikar.
The police got the clues from the disclosure statements of
accused Raj Kumar and Roshan Singh. None have been set
out by the learned Trial Court. None have been shown to us.
407. Before concluding the discussion pertaining to
accused Pushpender and Nirvikar, we would like to highlight a
grave illegality committed by the learned Trial Court. The
learned Trial Court convicted accused Pushpender and Nirvikar
for illegally possessing and using the firearms recovered at the
instance of accused Roshan Singh. No evidence was led by the
prosecution to establish that the firearms recovered at the
instance of Roshan Singh were possessed or used by accused
Pushpender and Nirvikar. The only documents on record which
contains a recording that the firearms recovered at the
instance of accused Roshan Singh were used by Pushpender
and Nirvikar are the disclosure statements of Pushpender and
Nirvikar, contents of which are completely inadmissible in
evidence.
408. The net result of the above discussion is that the
case of the prosecution fails against accused Pushpender and
Nirvikar.
CASE AGAINST THE POLICE OFFICERS
409. Testimony of Subash PW-38: The first circumstance
used by the learned Trial Judge to infer the guilt of the police
officers that the testimony of Subash PW-38, establishes that
they provided aid to Roshan Singh in throwing the body of the
deceased into the canal.
410. We have already held above that we do not
consider it safe to place any reliance upon the testimony of
Subash PW-38.
411. Abscondence of the police officers : The next
circumstance used by the learned Trial Judge to infer the guilt
of the police officers is that they were absconding. In this
regards, suffice would it be to state that abscondence in itself
is not the sufficient to infer the guilt of an accused person.
412. Pointing out of places of murder of the deceased
and the disposal of body of the deceased by accused Roshan
Singh: The last circumstance used by the learned Trial Judge to
infer the guilt of the police officers pointed out the place of
murder of the deceased as also the place from where the body
of the deceased was thrown into the canal.
413. Insofar as pointing out of place of murder of the
deceased is concerned, nothing turns on the same as the said
place was already in the knowledge of the police. Likewise,
nothing turns on the fact that the police officers pointed out
the place from where the body of the deceased was thrown
into the canal for the reason there is no evidence to show that
the place pointed out by accused Roshan Singh was the place
from where the body of the deceased was thrown into the
canal.
414. The end result of the above discussion is that the case
set up by the prosecution against accused Sripal Singh,
Rakesh Kumar and Satender Kumar fails.
CONCLUSION
415. The end result of the journey undertaken by us is
that the appeals filed by Sharda Jain and her brother Raj
Kumar i.e. Crl.A.No.51/2007, criminal appeal filed by Roshan
Singh i.e. Crl.A.No.139/2007 and criminal appeal filed by
Rajinder i.e. Crl.A.No.144/2007 are dismissed. Criminal
appeals filed by Pushpinder, Nirvikar, Rakesh Kumar, Sripal
Singh Raghav and Satender Kumar i.e. Crl.A.No.19/2007,
Crl.A.No.121/2007 and Crl.A.No.65/2007 are allowed.
Pushpinder, Nirvikar, Rakesh Kumar, Sripal Singh Raghav and
Satender Kumar are acquitted of the charges framed against
them. Such of the accused who are in custody and whose
appeals are allowed are directed to be set free unless required
in custody in some other case. Such accused who have been
acquitted and are on bail, we discharge their bail bonds and
surety bonds.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
AUGUST 27, 2009
mm/dk
