Mahavir Singh vs State
2009 Latest Caselaw 2913 Del

*                   IN THE HIGH COURT OF DELHI

%                            Judgment reserved on :13.07.2009
                            Judgment delivered on: 30.07.2009


+                      CRL. APPEAL 688/2007

      MAHAVIR SINGH                      ...Appellant
               Through : Mr. D.C.Mathur, Sr. Adv. with
                         Mr. Shishir Mathur, Advocate

                                   versus

      STATE                                    ...Respondent
                           Through : Mr. Pawan Sharma, Advocate

                       CRL. APPEAL 746/2007

      SUBASH CHAND                   ...Appellant
               Through : Mr. D.C.Mathur, Sr. Adv. with
                         Mr. Shishir Mathur, Advocate

                                   versus

      STATE                                    ...Respondent
                           Through : Mr. Pawan Sharma, Advocate

                       CRL. APPEAL 107/2008

      MUSTAQ                                  ...Appellant
                    Through : Mr. Rajesh Arora, Advocate

                                   versus

      STATE                                    ...Respondent
                           Through : Mr. Pawan Sharma, Advocate

                       CRL. APPEAL 108/2008

      JAGPAL @ RAJU                      ...Appellant
               Through : Mr. Rajesh Arora, Advocate

                                   versus

      STATE                                    ...Respondent
                           Through : Mr. Pawan Sharma, Advocate


Crl.Appeal Nos.688, 746/07 & 107, 108/08             Page 1 of 76
 CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?         Yes

3. Whether judgment should be reported in Digest?        Yes

: PRADEEP NANDRAJOG, J.

1. Vide impugned judgment and order dated 10.09.2007,

appellants Jagpal @ Raju, Mahavir Singh, Subash Chand @

Doctor @ Pradhan and Mustaq have been convicted for the

offence of having hatched a conspiracy to murder Drav Kumar

(hereinafter referred to as the "Deceased") and in pursuance

of the said conspiracy having killed the deceased. Vide order

dated 22.9.2007, they have been sentenced to undergo

imprisonment for life and pay a fine in sum of Rs.10,000/-

each; in default of payment of fine to undergo RI for one year.

2. Case of the prosecution is that the appellant Mahavir

Singh and the deceased were real brothers and their relations

were strained on account of a dispute pertaining to inheritance

of ancestral property inherited through their father. Drav

Kumar was issueless and it was the desire of Mahavir that Drav

Kumar should stay with him without separation so that on the

death of Drav Kumar and his wife, the property inherited

through their father, could in turn be inherited by the children

of Mahavir Singh. Since Drav Kumar was contemplating to

adopt a son and a daughter, Mahavir desired that Drav Kumar

should adopt his son. Defying the desire of Mahavir, Drav

Kumar adopted a male and a female child. This infuriated

Mahavir who sought revenge. He decided to kill Drav Kumar.

Fearing for his life Drav Kumar left his home-town and settled

in Delhi. To give effect to his illegal desire, Mahavir Singh

contacted the other three appellants. The four decided to kill

Drav Kumar by injecting him potassium cyanide. Subash

Chand @ Doctor @ Pradhan procured potassium cyanide and

gave the vial containing potassium cyanide to Mustaq and

Jagpal, who on an opportune moment were to inject the same

in the body of Drav Kumar. In pursuance of the said

conspiracy, appellant Mustaq befriended the deceased so as to

create an opportunity to execute the object of their

conspiracy. On 05.04.2004, appellants Mustaq and Jagpal

visited the residence of the deceased and in a friendly manner

led him to Surajmal Park. Attar Singh PW-2, a bodyguard of

Drav Kumar also accompanied them. All four i.e. the

deceased, Attar Singh, Mustaq and Jagpal consumed a bottle

of beer each in the park and when they were returning to the

residence of the deceased, all of a sudden, Mustaq caught hold

of the deceased and Jagpal jabbed the syringe containing

potassium cyanide in the back of the deceased and fled.

2. As per the prosecution Attar Singh PW-2 and Latesh

PW-6, the wife of the deceased, removed the deceased to the

hospital where he was declared brought dead.

3. As per the charge-sheet filed against the appellants, the

investigating officer recovered Rs.10,000/- (being the contract

money paid to Jagpal for killing the deceased) pursuant to the

disclosure statement of Jagpal and upon Jagpal leading the

investigating officer to the place wherefrom the money was

recovered. Qua Mustaq, as per the prosecution, pursuant to

his disclosure statement and at his instance he got recovered

a pocket diary containing the name and telephone number of

Mahavir. Qua appellant Mahavir the prosecution claims that

pursuant to his disclosure statement he got recovered a vial

which was detected with the presence of potassium cyanide.

He also got recovered a Matiz car bearing registration No.DL-

5CB-0024 in which he had transported Mustaq and Jagpal to

Delhi and back to their village after the crime was committed.

Qua appellant Subash Chand @ Doctor @ Pradhan the

prosecution claimed that pursuant to his disclosure statement

and upon his pointing out, he got recovered a paper packet

containing a powdery substance which was potassium cyanide.

4. Needless to state, Attar Singh PW-2, was the lynch pin of

the case of the prosecution qua its case against Mustaq and

Japal. Sustenance was sought to corroborate Attar Singh with

the testimony of Latesh, the wife of the deceased, to prove

that on 05.04.2004 the deceased was in the company of

Mustaq and Jagpal. The involvement of Mahavir Singh in the

conspiracy was sought to be proved by leading evidence that

Mahavir Singh was in touch with Mustaq and Jagpal before and

after the murder, and his having a motive to kill his brother.

Evidence was sought to be led against Subash Chand @ Doctor

to prove his being a conspirator with reference to his being

seen in the company of Mahavir when the other two

conspirators were present as also the recovery of a paper

pudia containing potassium cyanide at his instance. Lastly, the

proof of the fact that the deceased was killed due to cyanide

poisoning.

5. Criminal law was set into motion when at around 9:30 PM

on 05.04.2004, DD No.23A, Ex.PW-33/A, was recorded by the

duty officer at Police Station Anand Vihar to the effect that the

duty constable at GTB Hospital has informed that Drav Kumar

has been admitted in an unconscious condition at the hospital

by his wife Latesh and one Attar Singh.

6. On receiving a copy of the afore-noted DD Entry, SI

Udaivir Singh PW-33, accompanied by Const.Suresh Kumar

PW-31, proceeded to GTB Hospital. Simultaneously, Inspector

Dharmender Kumar PW-50, who also received the information

as recorded in DD No.23-A, reached GTB Hospital. On reaching

the hospital, the said police officers learnt that the patient

named Drav Kumar had been declared brought dead.

Inspector Dharmender Kumar obtained the MLC Ex.PW-34/A of

Drav Kumar which records that the deceased was brought to

the hospital at 9:13 PM by Latesh PW-6, the wife of the

deceased and Attar Singh PW-2.

7. Attar Singh PW-2, met the police officers at the hospital.

He claimed himself to be an eye-witness to the murder of the

deceased. Inspector Dharmender Kumar PW-50, recorded the

statement Ex.PW-2/A of Attar Singh wherein he stated that he

is a resident of village Khabra, District Bulandshar, UP and was

employed by the deceased who was a resident of village

Nazimpur Mudu, District Bulandshar, UP and was engaged in

the business of property dealing since last 3-4 months. That a

dispute arose between the deceased and his elder brother

Mahavir Singh qua a property situated in the village, on

account of which dispute, the deceased left his native village

and started residing in Delhi in a house bearing Municipal

No.10/125, 18 Block, Vishwas Nagar, along with his wife,

mother and two adopted children. He also used to reside with

the deceased at the aforesaid house and that the deceased

always used to keep him by his side. He used to help the

deceased in his business. Around 1-1½ month ago, Mustaq

who claimed to be a resident of Sunder Nagri started visiting

the residence of the deceased. The deceased told him that he

had met Mustaq in a jail. Few days ago, he had gone to his

village and returned today i.e. 5.4.2004 at around 1:00 PM.

Latesh, wife of the deceased, told him that in the company of

Mustaq and another boy the deceased had gone to Surajmal

Park, pursuant whereto he proceeded to Surajmal Park. On

reaching Surajmal Park, he saw that the deceased was

engaged in conversation with Mustaq and another person who

was aged between 20-25 years. The said person was of

medium built and had wheatish complexion and told his name

as Raju. Raju had a small bag in his hand. The deceased,

Mustaq, Raju and he came to the house of the deceased and

had lunch. All four went to see a movie at Swaran Cinema and

after watching the movie they proceeded to Surajmal Park. On

the way, the deceased told them to go to Surajmal Park and

that he was going to his house. Thus, three of them went to

the park and engaged themselves in a conversation. After

sometime the deceased came there and they continued

talking to each other. Around 6:00 PM Mustaq gave him money

and asked him to bring beer. He refused. Mustaq and the

deceased left to buy beer. Since Mustaq and the deceased

did not return after a considerable time, he and Raju went to

the residence of the deceased. After sometime, Mustaq came

to the house of the deceased and the three i.e. Mustaq, Raju

and he went to Surajmal Park. On reaching Surajmal Park he

saw that four beer bottles were lying in front of the deceased.

They consumed one bottle of beer each at an open ground

near the park. After consuming the beer, at around 8:30 PM,

they proceeded to return to the house of the deceased, when

suddenly Mustaq caught hold of the deceased from the back

and Raju pierced some object in the back of the deceased.

The deceased shouted that he had been stabbed. Mustaq and

Raju fled. He tried to apprehend them but failed. He

inspected the back of the deceased but did not find blood.

Thereafter, he and the deceased started walking towards the

house of the deceased, but after covering some distance the

deceased expressed his inability to walk further stating that

the pain was becoming unbearable. He made the deceased sit

near a drain and rushed to the house of the deceased to call

the wife of the deceased. He and the wife of the deceased

removed the deceased to GTB Hospital where he was declared

brought dead.

8. After recoding the statement Ex.PW-2/A of Attar Singh

and collecting the MLC Ex.PW-34/A of the deceased, and after

seizing the body of the deceased and sending it to the

mortuary of GTB Hospital, the aforesaid police officers

proceeded to the place of occurrence disclosed by Attar Singh

and at the place of occurrence Inspector Dharmender Kumar

PW-50 made an endorsement Ex.PW-50/A beneath the

statement Ex.PW-2/A of Attar Singh at around 01:00 AM and

forwarded the same through Const.Suresh Kumar PW-31 for

registration of an FIR. At the police station, HC Sufal Ram PW-

30, registered FIR No.137/04, Ex.PW-30/A, at 01:30 AM on

06.04.2004. HC Sufal Ram contemporaneously entered DD

No.3A Ex.PW-30/B, recording the time of registration of the

FIR. HC Sufal Ram also recorded DD No.4A Ex.PW-30/C, which

inter-alia records that HC Sufal Ram handed over the FIR

Ex.PW-30/A to Const.Satpal at 2:30 AM on 06.04.2004 for

being delivered to the Area Magistrate and senior police

officials.

9. Being relevant, it may be noted that FIR Ex.PW-30/A

contains an endorsement that the same was received by the

Area Magistrate at his residence at 09:00 AM on 06.04.2004.

10. In the meanwhile, at the spot Inspector Dharmender

Kumar PW-50, seized four empty bottles of beer at CBD ground

as noted in the memo Ex.PW-2/B. Inspector Dharmender

Kumar prepared a rough site plan, Ex.PW-50/B, of the place of

occurrence; recording therein at points „A‟ and „B‟ the spots

where the deceased, Attar Singh and the appellants Mustaq

and Jagpal consumed beer and the spot where empty bottles

of beer were found and the deceased was attacked by

appellants Mustaq and Jagpal. Const.Ompal Singh

(photographer) PW-17, reached the spot on being summoned.

7 photographs Ex.PW-17/1 to Ex.PW-17/7; negatives whereof

are PW-17/8 to Ex.PW-17/14 were taken. The same show four

beer bottles lying on the ground.

11. On 06.04.04 Inspector Dharmender Kumar PW-50,

recorded the statement Ex.PW-6/DA under Section 161 Cr.P.C.

of Latesh, the wife of the deceased. In the said statement she

stated that appellants Jagpal and Mustaq had visited her

residence and that after lunch all three, accompanied by Attar

had left and that in the night Attar came to the house and told

her that her husband had been stabbed by Jagpal and Mustaq.

She and Attar took her husband to the hospital where he was

declared brought dead. She further stated that her husband

was having strained relations with Mahavir Singh on account of

a property dispute.

12. At the mortuary of GTB Hospital, Dr.S.K.Verma PW-25,

conducted the post-mortem of the deceased at around 2:30

PM on 06.04.2004 and gave his report Ex.PW-25/A, which

records following external ante-mortem injuries:-

"1. A one mm diameter puncture mark having a blackish discoloration around it (size 3.5 x 3.0 cms) directed anteriorly, medially and downwards, placed 3.5 cms to the right of midline and 12 cms above the right costal margin on right side back. On exploration the injury was going upto right kidney (posterior surface) 5 mm.

2. A brownish abrasion of size 1.5 x 1.0 cms present over tip of right shoulder."

13. It was further recorded in the post-mortem report that

the opinion regarding the cause of death of the deceased

would be given after receiving the report of the chemical

analysis of the viscera of the deceased.

14. After the post-mortem, the doctor handed over the

viscera, clothes and blood sample of the deceased on a gauze,

as also tissues obtained from the punctured wound found on

the person of the deceased to Const.Suresh Kumar PW-31,

who in turn handed over the same to Inspector Dharmender

Kumar PW-50, as recorded in the memo Ex.PW-31/A.

15. Since appellants Mustaq and Jagpal were clearly named

as the ones who had injected something in the body of the

deceased and Mahavir Singh was named as a suspect by Attar

Singh and the wife of the deceased, the police officers set out

to apprehend them.

16. As per the prosecution, on the basis of a secret

information, the police party consisting of Inspector

Dharmender Kumar PW-50 and SI Ram Kishore Pandey PW-28,

arrested Mustaq in the presence of Attar Singh PW-2, at a

place near Movie Palace Cinema, Seema Puri, Delhi at 09:30

PM on 15.04.2004 as recorded in the arrest memo Ex.PW-

28/A. On being interrogated by Inspector Dharmender Kumar

PW-50, in the presence of Ram Kishore Pandey PW-28 and

Attar Singh PW-2, Mustaq made a disclosure statement Ex.PW-

28/C wherein he confessed to have murdered the deceased.

He took the police to the spot where he claimed to have

murdered the deceased and pointed out the same as recorded

in the pointing out memo Ex.PW-28/D. (It may be noted here

that the said spot is the same which was told by Attar Singh to

the police as the spot where the deceased was stabbed with a

needle i.e. the spot was already known to the police.)

Thereafter, Mustaq made another disclosure statement Ex.PW-

28/C wherein he stated that he can get recovered a pocket

diary in which he has written the telephones numbers of

Mahavir Singh and his associates. Thereafter, he led Inspector

Dharmender Kumar PW-50 and SI Ram Kishore Pandey PW-28

to a STD booth in village Mohalla Noorganj, Muradnagar, UP

where one Jakir Ali produced a small diary at the instance of

Mustaq. The said diary was seized vide memo Ex.PW-28/E.

17. On 07.05.2004 Const.Sonu Kaushik PW-21, prepared the

site plan Ex.PW-21/A to scale of the place of occurrence at the

instance of Attar Singh PW-2.

18. On 31.05.2004 Inspector Aas Mohd. PW-56, took over the

investigation of the case. Being relevant to note, is the fact,

that Inspector Dharmender Kumar was removed as an

investigating officer because he did not arrest Mahavir Singh

who had responded to his notice to appear before him. After

questioning Mahavir Singh, Inspector Dharmender Kumar let

him return home. Inspector Dharmender Kumar was accused

of bias.

19. The prosecution claims that pursuant to a secret

information, the police party consisting of Inspector Aas Mohd.

PW-56, HC Chanderpal PW-11 and Const.Vikram Singh PW-13,

arrested Jagpal on 19.07.04. On being interrogated by

Inspector Aas Mohd in the presence of HC Chanderpal PW-11

and Const.Vikram Singh PW-13, Jagpal made a disclosure

statement Ex.PW-11/B wherein he confessed to have

murdered the deceased and stated that he can get recovered

the sum which he had taken from appellant Mahavir Singh.

20. On 20.07.2004 Inspector Aas Mohd. filed an application

Ex.PW-7/B before Metropolitan Magistrate, Delhi for

conducting Test Identification of Jagpal. Rajnish Kumar PW-7,

Metropolitan Magistrate, conducted the proceedings

pertaining to Test Identification of Jagpal. But, Jagpal refused

to participate in the said proceedings alleging that the police

had already shown him to the witnesses, as recorded in the

record of proceedings Ex.PW-7/A.

21. As per the prosecution on the next day i.e. 21.07.2004

Jagpal pointed out the residence of the deceased and the

places where he, Mustaq, Attar Singh and the deceased

consumed beer on the day of the murder of the deceased as

also the place where the deceased was stabbed. (All places

already in the knowledge of the police). Thereafter, Jagpal led

Inspector Aas Mohd. PW-56 and HC Krishan Pal PW-52, to a

liquor canteen, situated at Kanwali Road, Dehradun and got

recovered Rs.10,000/- from a drawer at the canteen in the

presence of two witnesses; namely, Dharambir Singh PW-16

and Rajesh Kumar PW-51. The said sum of Rs.10,000/- was

seized vide memo Ex.PW-51/A. Inspector Aas Mohd. prepared

the site plan Ex.PW-56/A of the place of recovery of said sum

of Rs.10,000/-. Thereafter, Mustaq led the aforesaid police

officers to Hotel Rajmahal and pointed out a room where the

appellants had hatched the conspiracy to murder the

deceased. Two witnesses; namely, Latesh PW-6, the wife of

the deceased and Prakash Chand PW-45 had witnessed the

said pointing out as recorded in the memo Ex.PW-6/A.

Sometime thereafter, Jagpal led the aforesaid police officers to

village Tanaja and pointed out the residence of Subash in the

presence of two witnesses; namely, Kiran Pal PW-46 and

Chetan Singh PW-47, as recorded in the pointing out memo

Ex.PW-56/B.

22. On 08.08.2004 the police party comprising Inspector Aas

Mohd. PW-56, Const.Rajpal PW-32 and HC Krishan Pal PW-52

arrested Mahavir Singh. On being interrogated by Inspector

Aas Mohd. PW-56, in the presence of Const.Rajpal PW-32 and

HC Krishan Pal, PW-52, Mahavir Singh made a disclosure

statement Ex.PW-32/B wherein he confessed to have hatched

a conspiracy to murder the deceased along with the other

appellants and stated that he can get recovered the syringe

and vial used in committing the murder of the deceased. He

also told that the Matiz car used by him to transport Mustaq

and Jagpal could be got recovered by him. On the next day

i.e. 09.08.2004 a Matiz car bearing registration no.DL-5CB-

0024 was recovered at the instance of Mahavir Singh in the

presence of Khazan Singh PW-9, the father of the wife of the

deceased. The said car was seized vide memo Ex.PW-9/A.

23. On 10.08.2004 the police party comprising of Inspector

Aas Mohd. PW-56, Const.Rajpal PW-32 and HC Krishan Pal PW-

52, arrested Subash Chand. On being interrogated by

Inspector Aas Mohd. PW-56, in the presence of Const.Rajpal

PW-32 and HC Krishan Pal PW-52, Subash made a disclosure

statement Ex.PW-52/B wherein he confessed to have

participated in the murder of the deceased and stated that he

can get recovered the syringe, the vial and potassium cyanide

used in committing the murder of the deceased. On the next

day, Subash made another disclosure statement Ex.PW-9/C

wherein he again stated that he can get recovered the

potassium cyanide used in committing the murder of the

deceased.

24. As claimed by the prosecution, appellant Mahavir Singh

led Inspector Aas Mohd. to a vacant plot near Sushila Park,

Bulandshar, and as recorded in the pointing out memo Ex.PW-

15/B pointed out the spot from where a vial was recovered at

the instance of Mahavir in the presence of three witnesses;

namely, Ram Singh PW-15, Inderpal Singh PW-23 and Naresh

Kumar PW-24. The said vial was seized vide memo Ex.PW-

15/A. Inspector Aas Mohd. prepared the rough site plan

Ex.PW-56/C of the place of recovery of said vial. Thereafter,

Subash Chand led Inspector Aas Mohd. to his house situated in

village Tanaja and got recovered a paper puria containing a

white coloured substance from a cupboard inside his house.

Three witnesses; namely, Inderpal Singh PW-23, Naresh Kumar

PW-24, the brother of the wife of the deceased and Khazan

Singh PW-9, the father of the wife of the deceased witnessed

the recovery. The said paper puria was seized vide memo

Ex.PW-23/A. Inspector Aas Mohd. prepared the rough site plan

Ex.PW-56/D of the place of recovery of the said paper puria.

25. The seized materials; namely, the clothes, viscera,

tissues and blood sample of the deceased; the vial recovered

at the instance of Mahavir and the paper puria recovered at

the instance of Subash were sent to the Forensic Science

Laboratory for serological/chemical examination. Vide FSL

report Ex.P-X, it was opined that the viscera, the blood sample

and tissue sample of the deceased had tested positive for the

presence of cyanide. Vide FSL report Ex.P-X1, it was opined

that vial and paper puria recovered at the instance of Mahavir

and Subash respectively have tested positive for the presence

of potassium cyanide. Vide FSL report Ex.PW-58/A it was

opined that save and except the vest of the deceased, blood

was not detected on the clothes of the deceased. Vide FSL

report Ex.PW-58/B it was opined that human blood of group „B‟

was detected on the vest of the deceased. Vide FSL report

Ex.PW-58/D it was opined that the blood group of the

deceased was „B‟.

26. The FSL reports pertaining to the chemical analysis of

the viscera, blood sample and tissues of the deceased were

sent to Dr.S.K.Verma PW-25, who opined that the cause of the

death of the deceased was cyanide poisoning. The report

containing the opinion of Dr.S.K.Verma is Ex.PW-25/B.

27. The investigating officer, Inspector Aas Mohd. PW-56

recorded statements of various persons, some of them threw

light on the property dispute between Mahavir and the

deceased. Some threw light on Mahavir meeting people.

Some threw light on conduct of Mahavir in not attending the

funeral of his brother. Some threw light on Mahavir allegedly

absconding.

28. Armed with the aforesaid material and citing the persons

whose statements under Section 161 Cr.P.C. as witnesses of

the prosecution, a charge sheet was filed against the

appellants, accusing them of committing offences punishable

under Section 120-B IPC and Section 302 IPC read with Section

120-B IPC.

EVIDENCE LED BY THE PROSECUTION AND DEFENCE AND THE

STATEMENTS OF THE APPELLANTS

29. At the trial, 58 witnesses were sought to be examined by

the prosecution. During trial, found to be irrelevant or

unnecessary, some witnesses were dropped.

30. Not noting the testimony of few formal police officers

who deposed to the receipt of various articles in the malkhana

and further movement thereof to FSL, we proceed to note the

testimonies of such witnesses as is necessary for adjudication

of the appeals, keeping in view the contentions urged at the

hearing of the appeals.

31. Attar Singh PW-2 in his testimony reiterated the contents

of his earlier statement Ex.PW-2/A. However, he made two

departures by adding two sequence of events i.e. improved

upon his statement Ex.PW-2/A. The said improvements are:-

(i) that when he and the deceased were proceeding to the

house of the deceased after the deceased was attacked by

Mustaq and Jagpal, he made the deceased sit near a drain as

the deceased was unable to walk further because of

unbearable pain. That one security guard was present there

and he asked him to bring a rickshaw but the guard refused to

do so. He requested the said guard to take care of the

deceased and he went to the house of the deceased to inform

the wife and the mother of the deceased about the incident.

The wife of the deceased gave him Rs.10,000/- to take the

deceased to the hospital. That thereafter he and the wife of

the deceased came to the spot where the deceased was

sitting. He brought a rickshaw and with the help of the wife of

the deceased and the guard he put the deceased in the

rickshaw. Thereafter they reached Jhilmil Chowk where the

said guard arranged a three wheeler scooter and that they

transferred the deceased to the said scooter and took him to a

private hospital where the doctors refused to attend to the

deceased. Thereafter they took the deceased to GTB Hospital

where the deceased was declared brought dead. (It may be

noted that in his statement Ex.PW-2/A he has simply stated

that when the deceased expressed inability to walk further he

made him sit near a drain and called the wife of the deceased

and that both of them took the deceased to GTB Hospital.)

(ii) After Mustaq and Jagpal attacked the deceased, they

gave a telephonic call to Mahavir in his presence.

32. Pertaining to the events after the police arrived, which

needless to state related to the investigation and could

obviously not form part of this statement Ex.PW-2/A, he

deposed that his statement Ex.PW-2/A was recorded by the

police at the police station. He deposed that after Jagpal was

arrested he pointed out the residence of the deceased and the

place where Mustaq, Jagpal, the deceased and he consumed

beer as also the place where the deceased was attacked.

33. On being cross-examined about his relationship with the

deceased, Attar Singh stated that he was the body guard of

the deceased. On being cross-examined about his relations

with Mahavir Singh, he stated that he along with other body

guards of the deceased was arrested by the police on an

earlier occasion when Mahavir Singh had opened fire on them.

On being cross-examined about the details of his employment

with the deceased, he stated that: (Quote) 'In June, 2003 we

were arrested on that very day, when we had gone for duty as

body guard of Drav Kumar and after our release on bail, we

went to our respective house......We were again called for

duties on 27.12.2003, to work as body guards....I remained in

the service of Drav Kumar till 05.04.2004. Myself and Ushpal

were summoned for duties as body guards on

27.12.2003.....Ushpal used to sleep at the house of Drav

Kumar till he remained in his services. He served Drav Kumar

for a period of two and two and a half months.' On being

cross-examined about the omission of the presence of the

security guard in his statement Ex.PW-2/A, he stated that:

(Quote) 'A guard was there near the drain which was about

one and one fifty meters from the place where Drav Kumar

was murdered, by injecting a poisonous injection to him. This

fact was told by me to the IO in my statement. Confronted

with the statement Ex.PW-2/DA where the facts are not so

recorded....We told security guard that a blow was wielded on

the back of Drav Kumar and as such he is feeling severe pain.

I had told the police that security guard met us. Confronted

with the statement Ex.PW-2/DA where the facts are not so

recorded. He denied having illicit relations with the wife of the

deceased. He pleaded ignorance about the name of the movie

which was seen by him, the deceased and appellants Mustaq

and Jagpal on the day of the incident (as claimed to have been

seen as per his statement Ex.PW-2/A). He admitted that the

deceased possessed a mobile phone but pleaded ignorance

whether the same was with the deceased on the day of the

incident. On being cross-examined about the handing over of

money by the wife of the deceased to him on the day of the

incident, he stated that: (Quote) 'After receipt of information

Latesh gave me a sum of Rs.10,000/-and I ran to hire a

rickshaw and Latesh ran towards drain.' He denied having

purchased a Matiz car for a sale consideration of Rs.94,000/-

or that the wife of the deceased had given him the sum of

Rs.94,000/- to purchase a car. He further stated that appellant

Mustaq was arrested by the police at his instance.

34. Latesh PW-6, the wife of the deceased, deposed that the

relations between the deceased and Mahavir Singh were

strained on account of the fact that the deceased had adopted

a male child. Mahavir Singh used to extend threats to the

deceased due to which they left their native village and shifted

to village Devipura and thereafter to Delhi. She deposed that

Mahavir Singh and his family fled from the village after the

death of the deceased. On 05.04.2004 Mustaq and Jagpal

@Raju visited their residence and the deceased proceeded to

a park with them and the deceased instructed her to send

Attar Singh to the park. At around 10:00 AM when Attar Singh

came to the house she asked him to go to the park. After

sometime Attar Singh returned from the park and told her that

the deceased had asked her to prepare tea. She prepared tea

and sent the same through Attar Singh. After some time Attar

Singh again came to the house and asked her to prepare lunch

upon which she asked him that they should have food at the

residence itself. Mustaq, Jagpal, Attar Singh and the deceased

came to the house and had lunch. They went back to the park.

About 4:00 PM the deceased again came to the house and

after taking rest for 1-1½ hours he went back to the park.

Sometime thereafter Jagpal and Attar Singh came to the house

and told her that the deceased and Mustaq had gone to a

market to purchase some articles. Around 8:00 PM Attar Singh

again came to the house and informed her and her mother-in-

law that Mustaq and Raju have stabbed something at the back

of the deceased. She and her mother-in-law proceeded to the

spot where the deceased was present and put the deceased in

a rickshaw with the help of Attar Singh and one security guard

present there. Thereafter they shifted the deceased to an auto

and took him to a private hospital where the doctors refused

to attend to him. They took the deceased to a government

hospital where he was declared brought dead. That after he

was arrested Jagpal pointed out the place where conspiracy to

murder the deceased was hatched by the accused. The

pointing out memo Ex.PW-6/A was prepared in her presence

and bears her signatures.

35. On being cross-examined she denied having illicit

relations with Attar Singh. On being confronted with the

omission to mention the visits of Attar Singh in connection

with preparation of tea and lunch and that of the deceased in

the afternoon to take rest in the house in her statement

Ex.PW-6/DA recorded by the investigating officer, she failed to

give any satisfactory reply. On being confronted with the

portion in her statement Ex.PW-6/DA which records that Attar

Singh brought the deceased in an injured condition to the

house on the day of the incident, she stated (Quote) 'I had

stated to the police in my statement that on 05.04.2004

Pradhan Attar Singh had brought my husband at about 8:30

PM in injured condition and thereafter I accompanied my

husband and pradhanji to GTB hospital where my husband

was declared brought dead'. On being cross-examined about

her relations with one Uspal Singh, she stated that she did not

know any person by the name of Uspal Singh. On being cross-

examined about the details of issuance of cheques by her in

name of Attar Singh and Uspal Singh, she denied having

issued any cheques in favour of Uspal Singh and Attar Singh

on 01.01.2003, 03.01.2004, 06.01.2004 and 24.02.2004. She

admitted that the deceased was having a mobile phone with

him on the day of the incident.

36. Vidya Devi PW-5, the mother of the deceased and

Mahavir Singh, deposed that the relations between the

deceased and Mahavir Singh were strained on account of a

Will executed by her husband and the fact that the deceased

had adopted a male child. Mahavir Singh planned to murder

the deceased, on account of which she, the deceased and the

family of the deceased shifted from their native village to

village Devipura and thereafter to Delhi. That one day Mustaq

and Raju came to their house and after having lunch went to

the park along with her son. That the deceased never

returned from the park to the house and Attar Singh informed

her that the deceased had been murdered. That Mustaq and

Raju used to visit their house to meet the deceased.

37. On being cross-examined about the role played by her in

removal of the deceased to the hospital, she stated that

(Quote) 'Deceased Drav Kumar was found dead by us when

we accompanied Attar Singh to the occurrence however he

was removed to the hospital but the doctor declared him dead

and the froth was coming out from his mouth.' On being cross-

examined about her relations with Mahavir Singh, she stated

that (Quote) 'Mahavir got me assaulted from Vinod, who is son

of my son Mahavir. Jai Narain, son of my brother in law (Jeth)

was armed with a rifle. Mahavir had abused me in filthiest

language. This incident took place three years ago. It is

correct that I am deposing against Mahavir, since he had

behaved with me in aforesaid fashion. Mahavir used to abuse

me treating me like his wife and not is mother.'

38. Harbir Singh PW-3, deposed that the deceased and

Mahavir Singh were known to him as they used to reside in his

village. The relations between the deceased and Mahavir Singh

were strained on account of the fact that the deceased had

adopted a male child. The deceased and Mahavir Singh were

arrested by the police on account of an incident of firing.

Mahavir Singh and his family fled from the village after the

death of the deceased.

39. On being cross-examined about his relations with

Mahavir Singh, he stated that (Quote) 'A dispute had taken

place with accused Mahavir Singh when I sold my land to

accused Mahavir Singh and one Wasim and they had not paid

the sale proceeds as per our demand.' On being cross-

examined about the details of the incident of firing, he stated

that: (Quote) 'At the time of firing incident between the two

brothers I was also named as an accused by the accused

Mahavir Singh. Deceased Drav Kumar had not named me in

the said incident.'

40. Narsi Singh PW-4, the brother of Harbir Singh PW-3,

deposed that the relations between the deceased and Mahavir

Singh were strained on account of the fact that the deceased

had adopted a male child. Mahavir Singh used to threaten the

deceased that he would kill him. Mahavir Singh and his family

fled from the village after the death of the deceased.

41. Udai Veer PW-49, brother of Harbir Singh and Narsi

Singh, deposed that the relations between the deceased and

Mahavir Singh were strained on account of the fact that the

deceased had adopted a male child. On being cross-examined

he admitted that on 21.01.2004 he was made an accused in a

case registered under Sections 107 and 116 Cr.P.C. at the

instance of Mahavir Singh.

42. Suresh PW-8, the brother of Latesh PW-6, deposed that

the relations between the deceased and Mahavir Singh were

strained on account of the fact that the deceased had adopted

a male child. Mahavir Singh used to extend threats to the

deceased due to which the deceased and his family left their

native village and shifted to village Devipura and thereafter to

Delhi. That neither Mahavir Singh nor any of his family

members attended the cremation of the deceased.

43. Shanti PW-10, the sister of the deceased and appellant

Mahavir Singh, deposed that Attar Singh was having illicit

relations with the wife of the deceased i.e. Latesh and that the

relations between the deceased and Mahavir Singh were

strained as Mahavir Singh used to object to the relations

between Attar Singh and the wife of the deceased. That she

had asked the deceased and his family members to leave the

house as their reputation was suffering because of the illicit

relations between Attar Singh and the wife of the deceased.

On being cross-examined by the learned APP, she stated that

the deceased and Mahavir Singh were arrested in connection

with a dispute between them.

44. Jai Narain PW-37, a resident of village Nazimpura,

deposed that he is acquainted with appellant Mahavir Singh

and the deceased and that there was a dispute between them

regarding the inheritance of property. That the mother of

Mahavir Singh and the deceased had executed a Will Mark PW-

37/A to settle the dispute between them and that the said Will

bears his signatures.

45. Rakesh Kumar PW-36, Dinesh PW-41, Jugnu PW-42 and

Upendra PW-54, deposed that the deceased was their landlord

and that they are not aware about any dispute between the

deceased and appellant Mahavir Singh regarding the

ownership of the shops occupied by them. (It be noted here

that two witnesses of the prosecution namely, Jugnu and

Balwant Singh, have been numbered as PW-42).

46. Balwant Singh PW-42, deposed that he is the neighbour

of appellant Mahavir Singh. He denied having made any

statement to the police with regard to the present case. On

being cross-examined by the learned APP, he stated that he is

not aware about any dispute between the deceased and

Mahavir Singh. That Mustaq Ali did not reside as a tenant in his

house and that he has no knowledge regarding the association

between Mahavir Singh and Mustaq. He denied knowledge of

the fact that Raju used to visit Mustaq or that Mahavir Singh

and Mustaq absconded after the death of the deceased.

47. SI Udaivir Singh PW-33, deposed that on 05.04.2004 at

around 9:30 PM he received information regarding the

incident, pursuant whereto he proceeded to GTB Hospital. That

the statement Ex.PW-2/A of Attar Singh was recorded by

Inspector Dharmender Kumar at the hospital. That thereafter

he proceeded to the place of occurrence to conduct spot

investigation. On being cross-examined qua the time at which

he reached GTB Hospital he informed that he reached the

hospital around 10/10:15 PM.

48. Const.Suresh Kumar PW-31, deposed that on 05.04.2004

at about 11:30 PM he received information regarding the

incident pursuant whereto he accompanied SI Udaivir Singh

PW-33 to GTB Hospital and that Inspector Dharmender Kumar

PW-50 was also present at the hospital. SI Udaivir Singh

recorded the statement Ex.PW-2/A of Attar Singh at the

hospital. Thereafter they proceeded to the place of occurrence

where SI Udaivir Singh seized the beer bottles found therein

and photographs of the place of occurrence and the

surrounding area were taken. SI Udaivir Singh prepared the

rukka and at around 1.30 P.M. he took the same to the police

station, where Const.Suresh Kumar PW-30 registered the FIR

Ex.PW-30/A. That he handed over the clothes, blood sample

and tissues of the deceased to Inspector Dharmender Kumar

vide memo Ex.PW-31/A after they were handed over to him by

the doctor who conducted the post-mortem of the deceased.

On being cross-examined about the presence of the wife and

mother of the deceased at the hospital, he stated that they

were not present at the hospital.

49. Sufal Ram PW-30, deposed that the FIR Ex.PW-30/A and

the DD entries Ex.PW-30/B and Ex.PW-30/C were recorded by

him.

50. Inspector Dharmender Kumar PW-50, deposed that on

05.04.2004 he reached GTB Hospital on receipt of information

about the incident and recorded the statement Ex.PW-2/A of

Attar Singh at the hospital. Thereafter he proceeded to the

place of occurrence where he prepared the rukka and

conducted spot investigation. SI Ram Avtar Yadav had also

joined him at the spot investigation. On 15.04.2004 he

arrested Mustaq who led him to a STD shop located in village

Noorganj, Murad Nagar, UP where one Jakir Ali produced a

small diary at the instance of Mustaq. A perusal of the diary

revealed that the telephone numbers of appellant Mahavir

Singh, one Kishore and Krishan were written therein.

51. On being cross-examined, Inspector Dharmender Kumar

PW-50 admitted: (Quote) 'It is correct that a departmental

proceedings are pending against me in the matter related to

accused Mahavir present in the court. Disciplinary Authority is

proceeding with the matter since there are allegations against

me that I had not arrested accused Mahavir in this case on

15.04.2004 or on intervening night of that day......On 7.4.2004

I had sent notice u/s 160 Cr.P.C. to Mahavir Singh. Mahavir

Singh had received the same. Mahavir Singh had come to PS

Anand Vihar in pursuance to this notice'. On being cross-

examined about the preparation of the rukka, he stated that:

(Quote) 'Rukka was recorded by Ram Avtar SI, on my

dictation. It was recorded in GTB Hospital around 10.30 PM.'

He further stated that he did not obtain the specimen of

handwriting of Mustaq and Jakir for the purposes of

comparison with the handwriting contained in the diary

purportedly recovered at the instance of Mustaq.

52. SI Ram Kishore Pandey PW-28, deposed that Mustaq was

arrested by Inspector Dharmender Kumar PW-50 on

15.04.2004 in his presence and that the arrest memo Ex.PW-

28/A bears his signatures. That Mustaq made a disclosure

statement and pointed out the place where the deceased was

murdered. That Attar Singh PW-2 was also present at the

times when Mustaq was arrested and pointed out the place

where the deceased was murdered. That Mustaq led the police

party to the house of one Jakir Ali situated at village Noorganj,

Muradnagar where Jakir Ali produced one small diary at the

instance of Mustaq in his presence.

53. Inspector Aas Mohd. PW-56, deposed that he took over

the investigation of the present case on 31.05.2004. That the

investigation conducted by him revealed that a Matiz car

bearing registration no.DL-5CB-2024 is involved in the present

case. That one Javed who is a resident of village Bulandshar

informed him that he had sold the said vehicle to Asad who in

turn sold the same to Mahavir Singh. On 19.07.2004 he

arrested Jagpal and recorded his disclosure statement Ex.PW-

11/B. On 21.07.2004 Jagpal pointed out the place where the

deceased was murdered and that on 25.07.2004 Jagpal led

him and other police officials to a liquor canteen situated in

Dehradun and got recovered a sum of Rs.10,000/- from a

drawer in the said canteen in the presence of two public

witnesses; namely, Rajesh and Dharamvir. Thereafter, Jagpal

led him and other police officers to hotel Rajmahal and

pointed out a room where the conspiracy to murder the

deceased was hatched by the appellants. Thereafter he led

him and other police officials to village Tanaja and pointed out

the residence of Subash in the presence of two public

witnesses; namely, Kiran Pal and Chetan Singh. On 08.08.2004

he arrested Mahavir Singh and recorded his disclosure

statement Ex.PW-32/B and that thereafter he recovered the

Matiz car bearing registration No.DL-5CB-2024 at the instance

of Mahavir Singh in the presence of Khajan Singh. On

10.08.2004 he arrested Subash at the instance of Mahavir

Singh and recorded the disclosure statement Ex.PW-52/A

made by Subash. Thereafter, Mahavir Singh and Subash led

him and other police officers to a vacant plot near Sushila

Park, Bulandshar, where one empty vial was recovered from

the grass at the instance of Subash in the presence of two

public witnesses; namely, Chaudhary Ram Singh and Naresh

and that no article was recovered at the instance of Mahavir

Singh. That thereafter he recorded the second disclosure

statement Ex.PW-9/C of Subash pursuant whereto Subash got

recovered a paper pudia containing a white coloured

substance from a cupboard lying in his house in the presence

of two public witnesses; namely, Inderpal and Naresh Kumar.

On being cross-examined about the presence of gatekeepers

at Surajmal Park on the day of the incident, the witness stated

that: (Quote) 'I had tried to contact the gatekeeper of Surajmal

Vihar park, who had prevented complainant Attar Singh to

consume beer inside the park, but complainant Attar Singh

could not point out the said gatekeeper. I had contacted two

gatekeepers of Surajmal Vihar Park, who were on duty on

relevant time, but complainant Attar Singh had not identified

those gatekeepers to be the persons who had prevented them

to consume the beer inside the park.' On being cross-

examined about the factum of recording of the statements two

witnesses namely, Ram Bhool and Shri Ram, by him during the

course of the investigation, the witness stated that

'Statements of witnesses, Shri Ram and Ram Bhool were

recorded by me. Several members were present at that time,

they were village people of Panchayat. Due to misconception,

statements of Ram Bhool and Shri Ram were recorded.

Subsequently, I came to know that they had expired prior to

date of alleged recording of their statements. I was misguided

by the persons present there.'

54. HC Chanderpal PW-11 and Const.Vikram Singh PW-13

deposed on same lines that after Jagpal was arrested he made

a disclosure statement Ex.PW-11/B in their presence.

55. Ajit Singh PW-43, who claimed himself to be the son of

one Yadram Singh and resident of the house bearing Municipal

No.1449/M16, Gali No.9, Durga Puri, Shahdara, Delhi deposed

that on 21.07.2004 Inspector Aas Mohd. interrogated Jagpal

and recorded the contents of said interrogation on a paper in

his presence.

56. Sushil PW-1, deposed that he had let out the first floor of

his house to the deceased and that the deceased along with

his mother, wife and two children used to reside there. He

denied that Jagpal had pointed out the place of the residence

of the deceased in his presence to the police.

57. Prakash Chand, Chetan Singh and Kiran Pal Singh, the

stated witnesses to the pointing out by Jagpal of the residence

of Subash and the place where conspiracy to murder was

hatched by the appellants, were given up by the prosecution

as being unnecessary witnesses.

58. Dharambir Singh PW-16, the stated witness to the

recovery of Rs.10,000/- at the instance of Jagpal was also

dropped as an unnecessary witness.

59. Rajesh Kumar PW-51, deposed that he is employed at a

liquor canteen situated at Kanwali Road, Dehradun. That

Jagpal joined the said canteen in the month of May 2004 and

left the job within 10-15 days thereafter. On 26/27 July 2004

the police officers along with Jagpal came to the said canteen

and made enquiries from him. That no money was got

recovered by Jagpal in his presence. That he had signed the

memo Ex.PW-51/A at the instance of the police.

60. HC Krishan Pal PW-52, deposed that he was present

when Mahavir Singh and Subash were arrested on 08.08.2004

and 10.08.2004 respectively. That Jagpal made a disclosure

statement and got recovered a sum of Rs.10,000/- from the

drawer at a liquor canteen in his presence. Thereafter Jagpal

led him and other police officials to village Tanaja and pointed

out the residence of Subash. A Matiz car bearing registration

No.DL-5CB-2024 was recovered at the instance of Mahavir

Singh in his presence. Mahavir Singh and Subash made

disclosure statements Ex.PW-32/B and Ex.PW-52/A

respectively in his presence.

61. On being cross-examined about the factum of pointing

out the residence of Subash, he stated that: (Quote) 'Mahavir

identified the house of Subash. Again said, identification was

done by Jagpal. On 25.07.04, when he had gone to house of

accused subash after returning from there at that time apart

from accused Jagpal and Mahavir, IO of the case Sh.Aash

Mohd., one constable and me were in the police team.'

62. Const.Rajpal PW-32, deposed that Mahavir Singh was

arrested on 08.08.2004 and in his presence. Thereafter he

made a disclosure statement and got recovered a bottle and

syringe from a vacant plot situated in village Bulandshar in his

presence. That on 11.08.2004 Subash Chand was arrested in

his presence. At this juncture, said witness was dropped by

prosecution as being an unnecessary witness.

63. Khajan Singh PW-9, the father of the wife of the

deceased, deposed that in the month of September - October

2004 he had gone to village Bulandshar to visit his daughter

when he saw Mahavir Singh and his associates having

conversation in a room at Hotel Rajmahal and that he does not

know the details of the conversation which was going on

between them. He deposed that a vehicle was seized by the

police at the instance of appellant Mahavir Singh and that the

memo Ex.PW-9/A prepared in said regard bears his signatures.

64. On being cross-examined by the learned APP, he stated

that Mahavir Singh had pointed out the place where he

hatched the conspiracy along with the other accused and that

memo Ex.PW-9/B prepared in said regard bears his signatures.

He deposed that Subash got recovered a paper puria from a

cupboard in his house. On being cross-examined about the

number of persons sitting with Mahavir Singh when he had

seen him talking with his associates, he stated that: (Quote) 'I

am not aware how many persons were sitting with the accused

Mahavir Singh'.

65. Ram Singh PW-15, deposed that he is acquainted with

Mahavir Singh as he resides in his neighbourhood. That on

11.08.2004 the police along with Mahavir Singh and another

person had come to his house. He cannot identify the other

person who was accompanying them. Neither any article was

recovered by the police nor any person pointed out any place

to the police in his presence and that the memos Ex.PW-15/A

and Ex.PW-15/B were signed by him at the instance of the

police. On being cross-examined by the learned APP, he stated

that: (Quote) 'It is correct that the other person who had

accompanied the police alongwith accused Mahavir was

accused Subash @ Pradhan @ doctor. I cannot say if accused

Subash now present in court today was the same person who

had accompanied accused Mahavir with the police'.

66. Naresh Kumar PW-24, the brother of the wife of the

deceased, deposed that on 11.08.2004 he had gone to visit his

sister at her residence at village Bulandshar where he came to

know that officials of Delhi Police along with Subash and

Mahavir Singh had come there to investigate the murder of his

brother-in-law, pursuant to which he went to a vacant plot

situated near house bearing Municipal No.26/27. In his

presence, appellants Mahavir Singh and Subash pointed out

the place where they had thrown the syringe. The pointing out

memo Ex.PW-15/A was signed by him. Subash Chand got

recovered a vial in his presence and that memo Ex.PW-15/B

prepared in said regard bears his signatures. Thereafter

Subash Chand led the police officers to his house and got

recovered a paper puria from a cupboard in his house. The

recovery was in his presence and that the memo Ex.PW-23/A

bears his signatures.

67. On being cross-examined about the articles purportedly

recovered at the instance of Subash, he stated that: (Quote)

'The sringe got recovered by accused Subash was ordinary

sringe. I cannot tell its size. The said sringe was lifted from the

spot by accused Subash. I do not know who cleaned the

sringe. The police had prepared the pulanda of the sringe and

had sealed the same. The sringe was empty.....Police had

shown me the sringe at the spot before lifting the same. There

was needle in the sringe at the time of its recovery.' On being

cross-examined as to where he was standing when the paper

puria was recovered, he stated:- 'I had not entered inside the

house of accused Subash. Vol. I continued to stand outside his

house.' On being further questioned as to whether any other

person was present at the time of the recovery, he stated that

one Inder Pal was also present.

68. Inderpal Singh PW-23, deposed that he is acquainted

with Subash Chand since they are residents of the same

village. In the month of August 2004 when he came to know

that Subash Chand has been arrested by Delhi Police he came

to the office of DCP, Vishwas Nagar, to meet Subash where

Inspector Aas Mohd. made certain enquiries from him and

obtained his signatures on certain papers. That he had no

knowledge about the present case and that no article was

recovered by the police at the instance of Subash Chand in his

presence.

69. Suresh Chand Sharma PW-14, deposed that on one

occasion the police had brought a person to his STD booth and

that he had told the police that he has no knowledge whether

said person made any calls from his STD booth at any point of

time. That the police disclosed the name of said person as

Jagpal and that he cannot identify the person brought by the

police.

70. Javed PW-12, deposed that a vehicle was sold by him to

Attar Singh on 14.04.2004 for a sum of Rs.94,000/-. He denied

that a Matiz car bearing registration No.DL-5CB-2024 was sold

by him to Mahavir Singh on 04.04.2004 in his presence.

71. HC Dal Chand PW-18, deposed that kalandara Ex.PW-

20/A (Ex.PW-18/A) dated 21.01.2004 was prepared by HC

Ramesh Chand. HC Ramesh Chand PW-20, deposed that

Kalandara Ex.PW-20/A (Ex.PW-18/A) was prepared by him. The

said kalandara records that Mustaq was found quarrelling in

front of the gate of GTB Hospital and was booked under

Sections 107/151 Cr.P.C. on 21.01.2004. HC Satnam Singh PW-

33, deposed that kalandara Ex.PW-19/A was prepared by him,

which kalandara records that the deceased was found abusing

the crowd at Jalebi Chowk, Sultan Puri and was arrested on

being booked under Sections 107/151 Cr.P.C. on 23.01.2004.

SI Todar Singh PW-48, deposed that kalandara Ex.PW-22/A was

prepared by him, which kalandara records that the deceased

was found abusing one Jyoti Parsad and was arrested on being

booked under Sections 107/151 Cr.P.C. on 08.03.2004.

72. Const.Om Pal Singh PW-17, deposed that the

photographs Ex.PW-17/1 to Ex.PW-17/7; negatives whereof are

Ex.PW-17/8 to Ex.PW-14, were taken and developed by him.

Const.Sonu Kaushik PW-21, deposed having prepared the site

plan to scale Ex.PW-21/A of the place of occurrence at the

instance of Attar Singh on 07.05.2004. Rajnish Kumar PW-7,

Metropolitan Magistrate, Delhi deposed that test identification

of Jagpal was conducted by him and record Ex.PW-7/A of the

said proceedings was prepared by him. Dr.S.K. Verma PW-25,

deposed that the post-mortem report Ex.PW-25/A and the

opinion Ex.PW-25/B regarding the cause of the death of the

deceased was prepared by him. Dr.Parmeshwar Kumar PW-34,

deposed that the MLC Ex.PW-34/A of the deceased was

prepared by Dr.Santosh Kumar Pratinidhi and that he is

familiar with the handwriting of the said doctor. Shashi Bala

PW-58, deposed that the FSL reports Ex.PW-58/A, Ex.PW-58/B,

Ex.PW-58/C and Ex.PW-58/D were prepared by her.

73. In their examination under Section 313 Cr.P.C., the

appellants denied everything and pleaded false implication.

Additionally, appellant Mahavir Singh stated that Latesh, the

wife of the deceased, and Attar Singh were having illicit

relations. That they have murdered the deceased and have

false implicated him in connivance with the police officials.

74. In support of his defence, Mahavir Singh examined 11

witnesses. D.R.Punia DW-1, Officer Punjab National Bank,

Bulandshar, UP produced and proved Ex.DW-1/A, being

statement of account pertaining to the saving account

No.9591 maintained by Latesh, the wife of the deceased, at

Punjab National Bank.

75. Relevant would it be to note that a perusal of the

statement DW-1/A shows that Latesh had issued 3 cheques in

the name of one Ushpal Singh, which cheques were got

encashed on 01.01.2004, 03.01.2004 and 15.01.2004

respectively. A further perusal thereof shows that Latesh has

issued a cheque in sum of Rs.90,000/-in the name of Attar

Singh, which cheque was got encashed on 25.02.2004. It may

be noted that DW-1 was not subjected to any cross-

examination by the learned APP.

76. Naeem DW-2, Record Keeper, Nagar Palika Parishad,

Bulandshar, UP proved the death certificate Ex.DW-2/, which

certificate records that Sri Ram whose statement was

purportedly recorded by Inspector Aas Mohd during the course

of investigation of the present case had died on 07.11.1999.

77. Mir Singh DW-5, Assistant Director, Horticulture Zone - 9,

DDA, Ashok Vihar, Delhi deposed that on 05.04.2004 two

security guards namely Ajit and Brahm Singh were stationed at

CBD grounds and that their duty hours were 5:00 PM to 01.00

AM.

78. N.P.Kaushik DW-9, deposed that he is resident of a house

bearing Municipal No.1449/16, Street No.9, Durga Puri, Delhi

and that the person named Ajit Singh is neither known to him

nor resides in his house.

79. Shanker Singh DW-10, deposed that he is a resident of

house bearing Municipal No.1449/M16, Durga Puri, Delhi and

that Ajit Singh who is his brother has never resided in his

house.

80. Vinod DW-3, son of Mahavir Singh, deposed that on

08.04.2004 the police officials had forcibly lifted his father

from their residence and that he had got sent telegrams

Ex.DW-3/A, Ex.DW-3/B and Ex.DW-3/C to National Human

Rights Commission in said regard on the same day itself. That

his father was released by the police after about one week and

was again lifted on 07.08.2004. That one Ram Bhool whose

statement was recorded by Inspector Aas Mohd. during the

course of investigation of the present case had died on

18.11.2000 as recorded in the death certificate Mark-4.

81. Dharam Pal DW-4, a resident of village Nazim Pura,

deposed that the relations between Mahavir Singh and the

deceased were cordial and that Latesh, the wife of the

deceased, and Attar Singh were having illicit relations. On

being cross-examined about the relations between the

deceased and appellant Mahavir Singh, the witness stated

that: (Quote) 'On account of altercation between two brothers,

Drav Kumar came to Delhi along with his family....It is correct

that Mahavir Singh has been arrested for alleged murder of

Drav Kumar.'

82. Ram Rattan Singh DW-5, the brother-in-law of Mahavir

Singh, deposed that there was no dispute between the

deceased and appellant Mahavir Singh and that relations

between them were cordial. That Latesh, wife of the deceased,

had confessed having illicit relations with Attar Singh at a

panchayat.

83. Pintu DW-7, deposed that he was employed with the

deceased since last 16 years and that Attar Singh used to visit

the house of the deceased and the shop of the deceased. That

on one occasion he had seen Attar Singh and the wife of the

deceased in a compromising position.

84. Sarvesh Kumar DW-8, deposed that he runs a security

agency under the name and style Bharat Security at

Bulandshar, UP and that a person named Attar Singh was

never employed in his agency. However, on being re-examined

by prosecution under Section 311 Cr.P.C., the witness stated

that Attar Singh was employed in his agency and that he had

sent Attar Singh to the deceased for the purposes of security

of the deceased.

85. S.P. Singh DW-11, a handwriting expert, deposed that the

report Ex.DW-11/A which inter-alia records that the signatures

of the deceased on the copies of the complaints Mark A-1 to

Mark A-6 purportedly written by the deceased against

appellant Mahavir Singh do not tally with each other and that

the signatures appearing on the copy of the receipt pertaining

to the delivery of a Matiz bearing registration no.DL-5CB-2024

are not that of appellant Mahavir Singh was prepared by him.

IMPUGNED JUDGMENT AND THE ARGUMENTS ADVANCED ON

BEHALF OF THE STATE

86. As already noted hereinabove, vide impugned judgment

and order dated 10.09.07, the learned Trial Judge has

convicted the appellants. A perusal of the impugned judgment

which spans 95 pages shows that after noting the broad

contours of the case set up by the prosecution against the

appellants; the testimonies of the witnesses of the prosecution

and the defence and the arguments advanced by the defence,

in a cursory manner, the learned Trial Judge has returned a

finding of guilt against the appellants. No intelligible reasoning

is forthcoming from the impugned judgment and order which

could justify the finding of guilt returned by the learned Trial

Judge against the appellants, which fact was conceded by the

learned counsel for the State. However, the learned counsel

for the State had contended that there is sufficient material on

record to bring home the guilt of the appellants.

87. The circumstances enumerated by the learned counsel

for the State to prove the guilt of appellant Mustaq were: (i)

eye-witness account of Attar Singh PW-2, that appellants

Mustaq and Jagpal attacked the deceased in his presence,

which account is corroborated from the testimonies of Latesh

PW-6 and Vidya Devi PW-5, the wife and mother respectively

of the deceased, to the effect that the deceased left his

residence along with Attar Singh and appellants Mustaq and

Jagpal on the day of the incident; and (ii) recovery of a diary at

the instance of appellant Mustaq which contains the telephone

number of Mahavir Singh, a co-accused. The circumstances

enumerated by the learned counsel for the State to prove the

guilt of appellant Jagpal are (i) eye-witness account of Attar

Singh PW-2, that appellants Mustaq and Jagpal attacked the

deceased in his presence, which account is corroborated from

the testimonies of Latesh PW-6 and Vidya Devi PW-5, the wife

and mother respectively of the deceased, to the effect that the

deceased left his residence along with Attar Singh and

appellants Mustaq and Jagpal on the day of the incident; (ii)

recovery of Rs.10,000/- at the instance of appellant Jagpal and

(iii) refusal of appellant Jagpal to participate in the Test

Identification Parade. The circumstances enumerated by the

learned counsel for the State to prove the guilt of appellant

Subash are (i) recovery of a paper puria which tested positive

for the presence of potassium cyanide at the instance of

appellant Subash. The circumstances enumerated by the

learned counsel for the State to prove the guilt of appellant

Mahavir Singh are (i) abscondence of appellant Mahavir Singh

since the day of the murder of the deceased till his arrest; (ii)

recovery of a diary containing the telephone of Mahavir Singh

at the instance of co-accused Mustaq; (iii) evidence of Khazan

Singh PW-9, pertaining to factum of conversation between

appellant Mahavir Singh and his associates; (iv) motive of

appellant Mahavir Singh to murder the deceased and (v)

conduct of appellant Mahavir Singh of not attending the

cremation of the deceased. (vi) recovery of a vial at the

instance of Mahavir which was detected with the presence of

cyanide.

LAW OF CONSPIRACY

88. Since conspiracy is the primary charge against the

appellants, we first advert to the law of conspiracy - its

definition, essential features and proof.

89. Section 120-A of the Penal Code defines a criminal

conspiracy. Same reads as under:-

"120A. Definition of criminal conspiracy.

When two or more persons 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."

90. Section 120-B IPC prescribes punishment to be imposed

on a party to a criminal conspiracy. With regard to essentials

of the offence of conspiracy, following observations made by

Hon‟ble Supreme Court in the decision reported as Major E.G.

Barsey v State of Bombay AIR 1961 SC 1762 needs to be

noted:-

"...the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredients of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts".

91. In the decision reported as State v Nalini (1999) 5 SCC

253, the Supreme Court pointed out that that the meeting of

minds of two or more persons for doing an illegal act or an act

by illegal means is a sine qua non of the criminal conspiracy.

In the said decision, after a survey of the case law, Supreme

Court made following pertinent observations:-

"In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can

be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences."

92. 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."

93. 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.

94. If conspiracies are hatched in the darkness of secrecy

and direct evidence is seldom forthcoming and if the offence is

to be proved in relation to the acts, deeds or things done by

the co-conspirators, the question would arise as to what is the

nature of these acts, deeds or things. Is merely moving around

together or seen in each other's company sufficient? If not,

what more should be there from which it could be inferred that

the conspirators were acting to achieve the desired offence in

furtherance of a crime.

95. In the decision reported as State of Maharashtra and Ors.

v. Som Nath Thapa and Ors. (1996) 4 SCC 659 illuminating on

this grey area, the Supreme Court observed that for a person

to conspire with another, he must have knowledge of what the

co-conspirators were wanting to achieve and thereafter having

the intent to further the illegal act takes recourse to a course

of conduct to achieve the illegal end or faciliState its

accomplishment. Except for extreme cases, intent could be

inferred from knowledge for example whether a person was

found in possession of an offending article, no legitimate use

of which could be done by the offender. To illustrate, a person

is found in possession of 100 Kg. of RDX, is proved to be

visiting or visited by "A" against whom there is a charge of

conspiring to blow up a public place. Here, the recovery of the

offending article would be enough to infer a charge of

conspiracy. However, such instances apart, it was held that

law would require something more. This something more

would be a step from knowledge to intent. This was to be

evidenced from informed and interested cooperation,

simulation and instigation.

96. To elucidate further, it is most apposite to quote

following observations of Supreme Court in the decision

reported as Kehar Singh v State (Delhi Administration) AIR

1988 SC 1883:-

"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough.

......It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient......"

97. Thus, the proof of offence of conspiracy would require, in

most cases, some kind of physical manifestation of agreement.

The physical manifestations may not be proved by overt acts

but may be evidenced by conscious acts or conduct of parties

and reasonably clear to mark their concurrence. Where

evidence is clear, offence of conspiracy may be proved by

necessary implications. Innocuous, innocent or inadvertent

acts and events should not enter the judicial verdict. Since

more often than not, conspiracy would be proved on

circumstantial evidence, four fundamental requirements as

laid down as far back as in 1881 in the judgment reported 60

years later at the suggestion of Rt. Hon'ble Sir Tej Bahadur

Sapru i.e. 1941 All ALJR 416, Queen Empress v. Hoshhak may

be re-emphasised:-

I. That the circumstances from which the conclusion is

drawn be fully established;

II. That all the facts should be consistent with the

hypothesis;

III. That the circumstances should be of a conclusive nature

and tendency;

IV. That the circumstances should, by a moral certainty,

actually exclude every hypothesis but the one proposed to be

proved;

98. The discussion pertaining to standard of proof required

for proving the offence of conspiracy can be summarized by

the following observations of Supreme Court in the decision

reported as State (NCT of Delhi v Navjot Sandhu AIR 2005 SC

3820:-

"A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy.

DISCUSSION

99. Before proceeding to deal with the circumstances

enumerated by the learned counsel for the State to bring

home the guilt of the appellants, we consider it necessary to

analyze the evidence pertaining to the registration of the FIR

in the present case. The reason is that if there are traces of

the FIR being deliberately registered belatedly thereby making

available time to think for the maker of the FIR, the same

would have to be seen very carefully because more often than

not when a person buys time to make a statement, he does so

to deliberate and reflect on what he wants to speak and

thereby taints his statement with the taint of not being a

spontaneous statement but the result of a pre-conceived mind.

100. The first information regarding the incident in question

was received by the police at 09.30 P.M. on 05.04.04 as

evidenced from the DD Entry Ex.PW-34/A. It has further come

in the evidence on record that the police officers who reached

GTB Hospital after receipt of the information; namely,

Dharmender Kumar PW-50, SI Udaiveer Singh PW-33 and

Const.Suresh Kumar PW-31, met Attar Singh PW-2 at the

hospital. It can reasonably be assumed that at the most, it

would have taken 2 hours for the aforesaid police officers to

reach the hospital, record the statement of Attar Singh and

prepare the rukka on the basis of the said statement of Attar

Singh. A perusal of the rukka Ex.PW-50/A shows that the said

rukka was prepared at 01.30 A.M. on 06.04.04. The said time

difference of 4 hours between the receipt of the first

information of the incident and the preparation of the rukka,

particularly when Attar Singh was found present at the hospital

by the police officers involved in making of the said rukka is

excessive keeping in view the fact that the police officers

claimed to have immediately left for and reach the hospital.

101. A perusal of the testimony of Sufal Ram PW-30, the

scribe of the FIR Ex.PW-30/A registered in the present case,

and the contents of the DD Entries Ex.PW-30/B and Ex.PW-30/C

shows that the FIR Ex.PW-30/A was dispatched at 2.30 A.M. on

06.04.04 for delivery to the Area Magistrate and senior police

officials. The FIR Ex.PW-30/A contains an endorsement that the

said FIR was received by the Area Magistrate at 09.00 A.M. on

06.04.04. It has to be noted here that the police official who

had delivered the FIR Ex.PW-30/A to the Magistrate has not

been examined by the prosecution. The said difference of 7

hours between the dispatch of the FIR Ex.PW-30/A from the

police station and its receipt by the Magistrate, when coupled

with the fact that the official who had delivered the FIR in

question to the Magistrate has not been examined by the

prosecution shrouds the time of registration of the said FIR in

great suspicion suggestive of the fact that probably the rukka

was not dispatched as claimed by the police at 1:30 AM nor

was the FIR registered and dispatched at 2:30 AM.

102. As already noted hereinabove, Inspector Dharmender

Kumar PW-50, SI Udaiveer Singh PW-33 and Const.Suresh

Kumar PW-31, claimed to have participated in the investigation

conducted in the present case till the registration of the FIR.

Const.Suresh Kumar PW-31, deposed that SI Udaiveer Singh is

the scribe of the rukka Ex.PW-50/A which is contrary to the

recording contained in the said rukka that Inspector

Dharmender Kumar PW-50, is the scribe of the said

endorsement. Const.Suresh Kumar further deposed that the

wife and the mother of the deceased were not found present

at the hospital on the day of the incident whereas MLC Ex.PW-

34/A of the deceased establishes the presence of the wife of

the deceased at the hospital on the day of the incident. It is

also relevant to note the deposition of Const.Suresh Kumar

PW-31, that the information of the incident was received by

him and SI Udaiveer Singh PW-33 at 11:30 P.M. on 05.04.2004,

which is in contradiction to the testimony of SI Udaiveer Singh,

as per whom the information of the incident was received by

him at 09:30 P.M. on 05.04.2004 and that he and Const.Suresh

Kumar reached GTB hospital at 10-10.15 P.M. in pursuance of

the said information.

103. In this regard, it is also relevant to analyze the testimony

of Inspector Dharmender Kumar PW-50. Inspector Dharmender

Kumar deposed in his examination-in-chief that rukka in the

present case was prepared by him at the place of occurrence,

whereas in his cross-examination he stated that rukka was

prepared by him at the hospital. The said discrepancy needs to

be coupled with the deposition of Attar Singh PW-2, that his

statement which formed the basis of the rukka in question was

recorded at the police station; which is in complete

contradiction to the recording contained in the rukka that the

statement of Attar Singh was recorded at the hospital.

Inspector Dharmender Kumar further deposed that SI Ram

Kumar Yadav also participated in the spot investigation;

whereas SI Udaiveer Singh and Const.Suresh Kumar have not

deposed a word about the presence of SI Ram Avtar Yadav at

the time of spot investigation.

104. The cumulative effect of the above discussion is

that the time gap of 4 hours between the receipt of first

information of the incident and the preparation of the rukka

and the time gap of 7 hours between the dispatch of the FIR

from the police station and its receipt by the Magistrate leads

to a very strong inference that the rukka/FIR

prepared/registered in the present case were ante-timed,

which inference is further reinforced by the fact that the police

officials and other witness namely Attar Singh who played a

role in the spot investigation, preparation of the rukka and

registration of the FIR have contradicted themselves and each

other in material particulars.

105. The necessary corollary which emerges from the

aforesaid inference that rukka/FIR prepared/registered in the

present case were ante-timed is that Attar Singh PW-2, gained

time before giving his version pertaining to the incident of the

murder of the deceased. In these circumstances, the

testimony of Attar Singh PW-2, needs to be viewed with

caution and subjected to a very close scrutiny.

CASE AGAINST APPELLANT MUSTAQ

106. Since the first circumstance enumerated by the learned

counsel for the State against appellant Mustaq is predicated

upon the testimonies of Attar Singh PW-2, Latesh PW-6 and

Vidya Devi PW-5, we proceed with the appreciation of the

ocular evidence of the said witnesses.

107. A perusal of the testimony of Latesh PW-6, shows that

according to her, Attar Singh visited her house five times on

the day her husband was murdered. The first visit was around

10:00 A.M. in the morning when she instructed Attar Singh to

go to the park to meet the deceased; the second visit of Attar

Singh was in the afternoon for the purposes of taking tea to

the park; the third visit of Attar Singh was again in the

afternoon for the purposes of taking lunch to the park but that

she did not give him lunch and asked him to bring the

deceased and appellants Mustaq and Jagpal to the house for

taking lunch; the fourth visit of Attar Singh was again in the

afternoon when he had come with the deceased and

appellants Mustaq and Jagpal for eating lunch and the fifth

visit of Attar Singh was around 8 PM in the night when he

came to inform her about the incident. However, a perusal of

the testimony of Attar Singh PW-2, shows that there is no

mention of the visits pertaining to bringing of tea and lunch to

the park in his testimony.

108. Latesh PW-6 and Vidya Devi PW-5, have deposed in their

respective testimonies about the presence of Vidya Devi at the

time of the removal of the deceased to the hospital, whereas

Attar Singh in his testimony did not depose a word about the

presence of Vidya Devi at the said time.

109. The admission of Latesh PW-6, in her cross-examination

that she had stated in her statement Ex.PW-6/DA given to the

police that Attar Singh brought the deceased in an injured

condition to her house creates a serious doubt on the

genuinity of her testimony as also of that of Attar Singh and

Vidya Devi, that Attar Singh had come to the house of the

deceased to inform the family members of the deceased about

the incident, pursuant to which, Attar Singh, Latesh and Vidya

Devi proceeded to the spot where the deceased was sitting

and removed him to the hospital.

110. Another fact of great significance is that there is a

material omission in the statement Ex.PW-2/A of Attar Singh

vis-à-vis his testimony in the Court, inasmuch as, in Ex.PW-2/A

Attar Singh did not state a word about the presence of the

security guard around the place of occurrence and the role

played by him in removal of the deceased to the hospital. It is

further relevant to note the following statement of Inspector

Aas Mohd. PW-56, who, in his cross-examination stated that: 'I

had tried to contact the gatekeeper of Surajmal Vihar park,

who had prevented complainant Attar Singh to consume beer

inside the park, but complainant Attar Singh could not point

out the said gatekeeper. I had contacted tow gatekeepers of

Surajmal Vihar Park, who were on duty on relevant time, but

complainant Attar Singh had not identified those gatekeepers

to be the persons who had prevented them to consume the

beer inside the park.' The said deposition implies that Attar

Singh told Inspector Aas Mohd that one gatekeeper had

prevented him, the deceased and the appellants Mustaq and

Jagpal from consuming beer inside Surajmal Park. The failure

of Attar Singh to identify the gatekeepers who were on duty at

Surajmal Park at the relevant time when coupled with the fact

that Attar Singh did not depose a word about the incident

pertaining to consumption of beer at Surajmal Park, strongly

suggests that Attar Singh told a lie to Inspector Aas Mohd. that

he, the deceased and the appellants Mustaq and Jagpal were

prevented by a gatekeeper from consuming beer inside

Surajmal Park.

111. The cumulative effect of the aforesaid discrepancies in

the evidence of Attar Singh PW-2, Latesh PW-6 and Vidya Devi

PW-5, is that the said witnesses are „unreliable witnesses‟ and

thus no reliance can be placed on their evidence. In coming to

the conclusion that Attar Singh is an untruthful witness, we are

greatly influenced by the fact that Attar Singh gained time

before getting recorded his first version regarding the incident

of the murder of the deceased.

112. At this stage, the defence set up by the appellants,

particularly appellant Mahavir Singh, is worthy of a glance. The

defence taken by appellant Mahavir Singh was that Latesh, the

wife of the deceased, and Attar Singh were having illicit

relations; they have murdered the deceased and have falsely

implicated him in connivance with the police officials.

113. Eschewing reference to the testimonies of the witnesses

of the defence and Shanti PW-10, the sister of the deceased

and appellant Mahavir Singh, who have deposed about the

factum of illicit relations between Latesh and Attar Singh, we

proceed to note five facts. The first fact is that Latesh and

Attar Singh denied in their respective testimonies that a sum

of Rs.90,000/- was paid by Latesh to Attar Singh. However, the

said claim of Latesh and Attar Singh is belied from the

statement of account Ex.DW-1/A of Latesh which records that

a cheque in sum of Rs.90,000/- was issued by Latesh in favour

of Attar Singh and that the said cheque was got encashed on

25.02.04. The second fact is that Attar Singh deposed that one

Ushpal was also a bodyguard of the deceased and used to

reside at the residence of the deceased. In her testimony,

Latesh, denied knowing any person by the name of Ushpal.

However, a perusal of the statement Ex.DW-1/A shows that

various cheques were issued by Latesh in the name of Ushpal.

The third fact is that Attar Singh deposed in his testimony that

Latesh had given a sum of Rs.10,000/- to him on the day of the

murder of the deceased for the purposes of arranging a

rickshaw for removal of the deceased to the hospital. The

question which arises is that why did Latesh gave a huge sum

of Rs.10,000/- to Attar Singh for the purposes of arranging a

rickshaw. The fourth fact is that the prosecution has sought to

establish that a Matiz car was purchased by appellant Mahavir

Singh and used by him in the commission of the murder of the

deceased. However, Javed PW-12, who was examined by the

prosecution to prove the purchase of Matiz by appellant

Mahavir Singh deposed that a Matiz car was purchased by

Attar Singh ten days after the murder of the deceased for a

sale consideration of Rs.94,000/-. It may be remembered here

that Latesh had given a sum of Rs.90,000/- to Attar Singh on

25.02.04 evidenced from the statement Ex.DW-1/A.

114. We have already held that the FIR registered in the

present case has traces of being ante-timed. From the afore-

noted five facts, it can logically be deduced that there is

something more between Attar Singh and Latesh than what

meets the eye.

115. There is a strong probability that Attar Singh and Latesh

have conspired. Unfortunately, the features noted by us

hereinabove have been ignored by the learned Trial Judge.

116. This takes us to the second and last circumstance

enumerated by the learned counsel for the State against

appellant Mustaq; namely, the recovery of a diary at his

instance.

117. It is a settled legal position that the connection between

the object recovered and the offence with which an accused is

charged must always be exclusively established by evidence

„aliunde‟. However, where the gist of the offence is possession

or concealment, the admissible portion of the confession of the

accused may itself connect the accused with the offence. It is

permissible to connect the accused and the object with each

other through the information but not either of them with the

crime. It is not at all permissible to directly connect the

accused with the crime through his own mouth. (See the

celebrated decision of Privy Court reported as Pulukuri Kottaya

v Emperori AIR 1947 PC 67).

118. In the instant case, save and except a bald deposition of

Inspector Dharmender Kumar PW-50, there is no evidence to

show that the any of the telephone numbers found written in

the diary purportedly recovered at the instance of appellant

Mustaq was that of appellant Mahavir Singh or his associates

or the other appellants. There is also no evidence to show that

the handwriting contained in the said diary is that of appellant

Mustaq. No specimen of the handwriting of appellant Mustaq

were taken by the police for the purposes of comparison with

the handwriting contained in the said diary as admitted by

Inspector Dharmender Kumar in his testimony. In light of the

fact that no evidence has been adduced by the prosecution to

establish the connection between the diary purportedly

recovered at the instance of appellant Mustaq and the

offences with which he is charged, nothing much turns on the

circumstance that a diary was got recovered by appellant

Mustaq.

119. Be that as it may, even the evidence led by the

prosecution to prove the factum that a diary was got

recovered by appellant Mustaq is uninspiring. Whereas

Inspector Dharmender Kumar PW-50, has deposed that the

diary in question was recovered from STD shop of Jakir Ali, SI

Ram Kishore Pandey PW-28, deposed that the same was

recovered from the residence of Jakir Ali.

CASE AGAINST APPELLANT JAGPAL

120. The first circumstance enumerated by the learned

counsel for he State against appellant Jagpal has already been

rejected by us in the foregoing paras i.e. paras 106 to 115

above. The same applies good even to appellant Jagpal.

121. The second circumstance enumerated by the learned

counsel for the State against appellant Jagpal is that a sum of

Rs.10,000/- was got recovered by appellant Jagpal.

122. Again, there is no evidence to establish the connection

between the sum of Rs.10,000/- allegedly got recovered by

appellant Jagpal and the offence with which he was charged.

There is no evidence to show that the said sum was given to

appellant Jagpal by any of the other appellants in furtherance

of the conspiracy to murder the deceased.

123. Be that as it may, we proceed to deal with the evidence

led by the prosecution to prove the factum of recovery of

Rs.10,000/- at the instance of appellant Jagpal.

124. Dharambir Singh PW-16, Rajesh Kumar PW-51, HC

Krishan Pal PW-52 and Inspector Aas Mohd PW-56, were

claimed to be witnesses to the recovery of Rs.10,000/- at the

instance of appellant Jagpal.

125. As already noted in the foregoing paras, Dharambir Singh

PW-16, was dropped by the prosecution as being an

unnecessary witness. Rajesh Kumar PW-51, did not support the

case of the prosecution and denied that any article or sum of

money was got recovered by appellant Jagpal in his presence.

126. This takes us to the analysis of the testimony of HC

Krishan Pal PW-52. We need not labour much on the testimony

of HC Krishan Pal, save and except to note that he deposed

that appellant Mahavir Singh was also present with the police

party when appellant Jagpal pointed the house of appellant

Subash on 25.07.2004. The aforesaid deposition of HC Krishan

Pal shows that he is an untruthful witness inasmuch appellant

Mahavir Singh could not have been present with the police on

25.07.2004, inasmuch as he was arrested on 08.08.2004 as

claimed by the prosecution. It is apparent that HC Krishan Pal

who has spoken an obvious lie with reference to the presence

of Mahavir Singh when Jagpal allegedly pointed out the house

of Subash could well be a telling a lie pertaining to the

recovery of Rs.10,000/-.

127. There is yet another fact which needs to be noted. Rajesh

Kumar PW-51, deposed that appellant Jagpal joined in May

2004 as an employee in the canteen from where the purported

recovery was made. He deposed that Jagpal left the said

employment within 10-15 days of joining. The recovery in

question was allegedly made on 25.07.2004. It does not stand

to reason that appellant Jagpal would leave behind the

considerable sum of Rs.10,000/- at the canteen and not take

the same with him at the time of leaving employment.

128. In view of above discussion, we hold that the prosecution

has not been able to successfully establish that a sum of

Rs.10,000/- was got recovered by appellant Jagpal.

129. The last circumstance enumerated by the learned

counsel for the State against appellant Jagpal is the refusal of

appellant Jagpal to participate in the Test Identification.

130. As already noted hereinabove, appellant Jagpal refused

to participate in the test identification proceedings on the

ground that the police had already shown him to the

witnesses. We have already held that there are traces of the

FIR being ante-timed. We shall be highlighting that the

investigation conducted by the police in the present case was

most perfunctory and that the police officers who

subsequently participated in the investigation in the present

case were prejudiced against the appellants. In that view of

the matter, the ground taken by appellant Jagpal for refusing

to participate in the proceedings pertaining to conduct of his

Test Identification cannot be said to be unfounded and thus no

adverse inference can be drawn against appellant Jagpal on

account of the said refusal.

CASE AGAINST APPELLANT SUBASH

131. The only circumstance enumerated by the learned

counsel for the State against appellant Subash is that a paper

puria containing a white substance was recovered at his

instance, said articles and the white substance was found to

contain potassium cyanide and the cause of death of the

deceased was cyanide poisoning.

132. Ram Singh PW-15, Inderpal Singh PW-23, Naresh Kumar

PW-24, Khazan Singh PW-9 and Inspector Aas Mohd PW-56,

were claimed to be witnesses to the recovery of the vial and

paper puria at the instance of appellant Mahavir and Subash

respectively.

133. At the outset, it is most relevant to note the testimony of

Const.Rajpal PW-32, who deposed that a bottle and a syringe

was recovered at the instance of appellant Mahavir Singh in

his presence. The aforesaid testimony of the said witness

seriously damages the case of the prosecution since no

syringe was claimed to be recovered.

134. Be that as it may, Ram Singh PW-15 and Inderpal Singh

PW-23, did not support the case of the prosecution and denied

having witnessed recovery of any article at the instance of

appellant Subash and Mahavir.

135. Naresh Kumar PW-24, the brother of the deceased,

deposed that a vial and a „syringe‟ were recovered at the

instance of appellant Subash and Mahavir in his presence. The

witness went on to describe the syringe recovered at the

instance of appellant Subash. As per the prosecution, the

articles purportedly recovered at the instance of appellant

Subash was a paper puria. No syringe was claimed to be

recovered at the instance of appellant Subash and Mahavir by

the prosecution. When no syringe was recovered at the

instance of appellant Subash and Mahavir, then how could

Naresh Kumar witness the recovery of a syringe and even

describe the syringe so recovered, is a mystery. Naresh Kumar

further deposed that appellant Subash got recovered a paper

puria from a cupboard lying in the house of appellant Subash

in his presence. On being questioned as to where he was

standing when paper puria was recovered, he stated that he

did not enter the house of appellant Subash and was standing

outside the said house. If Naresh Kumar was standing outside

the house of appellant Subash, then how could he see that a

paper puria was recovered, from a cupboard lying inside the

said house, is again a big mystery. Obviously, Naresh Kumar is

telling a lie that he was present when the recoveries were

made at the instance of appellant Subash.

136. This brings us to the analysis of the testimony of Khazan

Singh PW-9, the father of the deceased, who deposed having

witnessed the recovery of a paper puria at the instance of

appellant Subash. We need not labour on his testimony save

and except note the fact that the presence of Khazan Singh at

the time of recovery of paper puria does not find a mention in

the testimonies of the other so-called witnesses to the said

recovery; namely Inspector Aas Mohd PW-56 and Naresh

Kumar PW-24. It is also relevant to note that Khazan Singh did

not depose a word about the said recovery in his examination-

in-chief but stated the same when he was cross-examined on

behalf of the prosecution. The reason given by him for not

stating the said fact in the first instance that he is an illiterate

person and thus forgot to mention the said facts due to

inadvertence, is highly unconvincing. In such circumstances,

no reliance can be placed on the testimony of Khazan Singh for

the purposes of proving the factum of recovery of paper puria

found to be containing potassium cyanide at the instance of

appellant Subash.

137. As a result, we are only left with the testimony of

Inspector Aas Mohd PW-56. In view of the fact that the

public/independent witnesses examined by the prosecution to

prove the factum of recoveries purportedly made at the

instance of appellant Subash either did not support the case of

the prosecution or are found to be „wholly unreliable‟, no

reliance can be placed on the testimony of Aas Mohd. who was

the Investigating Officer in the present case and thus highly

interested in the success of the prosecution for proof of the

said fact.

138. Besides, the vial has obviously being seized from an open

plot of land. The recovery thereof is on 12.8.2004. The date

of murder of Drav Kumar is 5.4.2004. As per the charge sheet,

after committing the murder, Mustaq and Jagpal met Mahavir

the same day and left Delhi in the Matiz car of Mahavir.

Further, as per the charge sheet, the vial and the syringe were

handed over to Mahavir who threw the same. Thus, the vial

was thrown in early part of April 2004. The month of June

receives pre-monsoon showers in northern India. The months

of July and August are monsoon season. We are surprised that

the vial (a small bottle) thrown in the open field and subjected

to the vagaries of nature could show traces of cyanide even

after being recovered after two months of lying in an open

field and being subjected to rain water. Besides, the

prosecution has sought to lead inchoate evidence as to who

actually disclosed about the place where the vial was thrown.

In the confessional cum disclosure statements of Mahavir and

Subash both have spoken of the vial. According to the

prosecution, both Mahavir and Subash searched for the vial.

As noted above, one witness of the prosecution speaks of

Mahavir recovering the vial and others speak of Subash doing

so. The pointing out memo Ex.PW-15/B of the place from

where the vial was recovered is shown to be at the pointing

out of Mahavir. The seizure memo Ex.PW-15/A records that

Subash recovered the vial from within grass. Everything is

inchoate and clouded.

139. The net result of the above discussion, it is apparent that

the evidence pertaining to the recoveries attributed to Subash

are highly doubtful; are tainted and hence most unreliable

evidence against Subash.

CASE AGAINST APPELLANT MAHAVIR SINGH

140. The first circumstance enumerated by the learned

counsel for the State against appellant Mahavir Singh is that

appellant Mahavir Singh was absconding since the day of the

murder of the deceased till the time of his arrest. The

witnesses examined by the prosecution to prove abscondence

of appellant Mahavir Singh are Harbir Singh PW-3, Narsi Singh

PW-4, Latesh PW-6 and Inspector Aas Mohd PW-56.

141. In said regards, it is most relevant to note the testimony

of Vinod DW-3, the son of appellant Mahavir Singh, who

deposed that on 07.04.2004 appellant Mahavir Singh was

forcibly lifted by the police from his residence. To substantiate

his claim, the witness produced three telegrams Ex.DW-3/A,

Ex.DW-3/B and Ex.DW-3/C dated 08.04.2004 issued by him to

National Human Rights Commission in the said regard.

142. We disagree with the contention urged by learned

counsel for the State that the sons of Mahavir are crafty

persons and to create proof that Mahavir did not abscond, but

was lifted by the police, have sent the aforesaid telegrams.

Why should the sons of Mahavir do so? Surely, they do not

know the law of evidence that under Section 3 of the Evidence

Act a mental condition of a person is a fact and that under

Section 8 of the Evidence Act the conduct of an accused is

admissible evidence and that Courts have held that where an

accused absconds a presumption of his guilty mind can be

drawn by the conduct of fleeing from justice.

143. Besides, Mahavir Singh has not absconded. Inspector

Dharmender PW-50, admitted during cross examination that

Mahavir Singh responded to his notice dated 7.4.2004 issued

by him under Section 160 Cr.P.C. and made himself available

for interrogation at PS Anand Vihar. He admitted that he was

facing departmental proceedings in connection with an

allegation that by not arresting Mahavir Singh on 15.4.2004

when Mahavir Singh came to the police station. Thus, it is

apparent that Mahavir Singh did not abscond.

144. The next circumstance enumerated by the learned

counsel for the State is that a diary containing the telephone

of appellant Mahavir Singh was recovered at the instance of

co-accused Jagpal. As already noted hereinabove, save and

except a bald deposition of Inspector Dharmender Kumar PW-

50, there is no evidence to show that any of the telephone

numbers found written in the diary purportedly recovered at

the instance of appellant Jagpal was that of appellant Mahavir

Singh. In that view of the matter, the mere circumstance that a

diary was recovered at the instance of appellant Jagpal and

that some telephone numbers were found to be written in the

said diary can hardly be used as an incriminating circumstance

against appellant Mahavir Singh. Besides, as noted

hereinabove while discussing the alleged incriminating

evidence against co-accused Jagpal, the recovery of the diary

itself is highly tainted. Qua the recovery of the vial we have

discussed the evidence relating thereto while discussing the

evidence qua the recovery of the paper puria and have noted

the serious infirmities therein, which renders the recovery of

the vial as claimed by the prosecution, highly doubtful.

145. No doubt, through the testimony of PW-3, PW-4, PW-5,

PW-8, PW-9, PW-36, PW-37, PW-41, PW-42 and PW-49 it does

stand somewhat established that the deceased and Mahavir

were not on good terms and therefore it can certainly be urged

that Mahavir had a motive to kill his brother.

146. But, mere existence of motive by itself without any other

evidence cannot form a complete chain of circumstances

wherefrom an inference of guilt can be drawn. (See the

decisions of Supreme Court reported as Keshav v State of

Maharashtra (2007) 14 SCALE 174, Ramesh Baburao Devaskar

v State of Maharashtra (20070 12 SCALE 272 and Girija

Shanker Misra v Nathu Singh AIR 1993 SC 2618.)

147. That Mahavir did not attend the funeral of Drav Kumar is

nothing but a fact of his ill will towards his brother and is the

other side of the face of the coin: motive.

PERFUNCTORY INVESTIGATION BY THE POLICE

148. The investigation conducted by the police in the present

case is most perfunctory. We have already demonstrated that

the FIR registered in the present case has a strong suspicion of

it being ante-timed and that some of the police officers who

ostensibly participated in the investigation in the present case

have deposed most inchoately. There are three more facts

which would highlight the defective nature of the investigation

conducted by the police. The first fact is that Latesh PW-6, the

wife of the deceased, deposed that the deceased was having a

mobile phone at the time of the incident. No evidence was

collected by the police pertaining to the record of the mobile

phone of the deceased, which if collected, could have given

important leads to the police. The second fact is that the

persons namely Ram and Ram Bhool Singh, whose statements

were purportedly recorded under Section 161 Cr.P.C. in

connection with the present case, had expired much before

the incident of murder of the deceased, which fact has been

admitted by Inspector Aas Mohd, the scribe of the said

statements. This shows that somebody was attempting to

introduce false witnesses. The third fact is that the defence

prove that Ajit Singh PW-43, who was examined by the

prosecution to prove the recording of disclosure statement of

appellant Jagpal, did not reside at the address given by him in

his testimony, which implies that the said witness was planted.

CONCLUSION

149. As observed by the Supreme Court in the decision

reported as State (NCT of Delhi) v Navjot Sandhu AIR 2005 SC

3820 that „few bits here and a few bits there on which the

prosecution relies cannot be held to be adequate for

connecting the accused in the offence of criminal conspiracy'.

In the instant case, there is no evidence show that there was

any association, much less meeting of minds, between the

appellants. Thus, we hold that the prosecution has not been

able to establish that a conspiracy was entered into by the

appellants to murder to the deceased.

150. The necessary corollary of the aforesaid conclusion is

that the prosecution has not been able to establish that the

appellants murdered the deceased in pursuance of the

conspiracy entered into by them.

151. The net result is that the appeals are allowed. The

appellants are acquitted of all the charges framed against

them. The impugned judgment and order dated 10.9.2007

convicting the appellants is set aside. The appellants are

directed to be set free forthwith unless required to be kept in

custody in some other case.

152. Copy of this order be sent to the Superintendent Central

Jail Tihar for compliance.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE JULY 30, 2009 dk/mm