Delhi High Court
Pradeep Saini @ Anr. vs State on 9 September, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 7th August, 2009
Judgment Delivered On: 9th September, 2009
+ CRL.A. 172/2001
PRADEEP SAINI & ANR. ..... Appellants
Through: Mr. D.K.Sharma, Advocate
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J.
1. Appellants Pradeep Saini and Kishore Kumar faced trial
for the charges of having trespassed into premises bearing
Municipal No.B-1, 624, NIIT, Janak Puri, Delhi in the intervening
night of 7th and 8th January 1997 after having made
preparation for causing hurt to any person who would obstruct
them form committing such trespass; committed robbery in
the said premises and with the use of a knife murdered Kashi
Nath Jha (herein after referred to as the "deceased") during
the course of commission of robbery.
2. Vide impugned judgment and order dated 05.12.2000
the appellants have been held guilty of committing offences
punishable under Sections 458/34, 392/397/34 and 302/34 IPC.
Vide order dated 09.03.2001 they have been sentenced to
undergo imprisonment for life for the offences punishable
under Sections 302/34 and 392/397/34 IPC and RI for 5 years
for the offence punishable under Section 458/34 IPC.
3. The case set up by the prosecution against the accused
was that on 08.01.1997 at about 01.30 AM i.e. in the middle of
the night Const.Ram Chander PW-3 and DHG Const.Rajesh
Kumar PW-4, were patrolling on bicycles in the area around
District Centre, Janak Puri, when they saw the accused walking
on the road. They asked the accused to stop, upon which the
accused started running. The aforesaid police officers chased
the accused and apprehended them. After apprehending the
accused, the said police officers noticed that the clothes of the
accused were stained with blood and that they were carrying
pithoo bags. The pithoo bags of the accused were checked
and articles; namely, one full-sleeves white coloured blood
stained vest, one full-sleeves yellow and off-white coloured
shirt on which words MG-Mukesh were written and a green and
black coloured label affixed thereon which was stained with
huge quantity of blood, a blue coloured gas candle cylinder,
one Eveready torch containing three Eveready cells, one small
piece of black coloured georgette cloth, a perfume bottle on
which the word „Charlie‟ was written and contained a liquid
substance, one glass cutter on which words „Divine India‟ were
written, one screw driver on which the word „Jumbo‟ was
written, another small screw driver, one small white colored
cello tape, one black colored sock, one nylon rope having 3
feet length, one white and black colored plastic wrist band and
two pieces of georgette cloth were found therein. While the
said police officers were conducting the personal search of the
accused, accused Kishore Kumar took out an object from the
pocket of his pant and threw the same in the nearby bushes.
The object thrown by accused Kishore Kumar was a blood-
stained knife.
4. Const Ram Chander PW-3, sent the aforesaid information
through wireless to the police control room. HC Mukesh Kumar
PW-23, Wireless Operator, recorded the aforesaid information
in the wireless log and diary register Ex.PW-23/A.
5. It may be noted here that the relevant entry in the
wireless log and diary register Ex.PW-23/A records that:
(Quote) 'Two persons who are possessing knives have been
apprehended at some distance ahead of District Centre
situated at Main Najafgarh Road. PCR van be sent. The clothes
of the said persons are stained with blood and there are
instruments in the bags of the said persons. Some officer be
sent'.
6. HC Mukesh Kumar PW-23, transmitted the aforesaid
information to Duty Officer HC Ramesh Kumar PW-2, who
recorded DD Entry 17A Ex.PW-2/C; noting the said information
at the police station Janak Puri.
7. On receiving a copy of the aforesaid DD entry Ex.PW-2/C,
SI Sita Ram PW-16, accompanied by Const.Rajesh Kumar PW-
6, reached the place where the accused were apprehended.
SI Sita Ram PW-16, recovered the knife thrown by accused
Kishore Kumar and prepared the sketch Ex.PW-3/D thereof.
The same records that the length of the knife was 23.1 cms;
length of the blade was 11 cms and the length of the handle
was 12.1 cms. The joint connecting the handle with the blade
was having a brass button which was used to open and close
the knife. The tip of the blade of the knife was bent. The said
facts have been noted in the seizure memo of the knife.
8. It be noted here that the sketch Ex.PW-3/D of the knife
bears the number of the FIR registered in the present case.
9. As per SI Sita Ram PW-16 the accused disclosed that
they have wounded a security guard at NIIT centre situated at
B-1/624, Janak Puri, New Delhi by using a knife and a wrench
pipe and have also stolen the cash box lying at the said
centre. They further disclosed that they have left the wrench
pipe at the centre and hidden the cash box in the bushes
nearby. Pursuant thereto, the aforesaid police officers;
namely, SI Sita Ram PW-16, Const Rajesh Kumar PW-6, Const.
Ram Chander PW-3 and DHG Const.Rajesh Kumar PW-4 and
the accused proceeded to NIIT centre situated at B-1/624,
Janak Puri, New Delhi where the deceased was found lying in a
badly injured and unconscious condition in a room therein.
10. Leaving behind the accused persons in the custody of
Const.Rajesh Kumar PW-3, DHG Const.Ram Chander PW-4 and
Const.Rajesh Kumar PW-6, SI Sita Ram PW-16, removed the
deceased to DDU Hospital where Dr.Rajesh Bhatt conducted
the medical examination of the deceased and recorded the
MLC No. 00182 Ex.PW-9/A of the deceased, declaring him to
be unfit for giving a statement.
11. Since the deceased was unfit to give a statement and no
eye-witness was found, SI Sita Ram made an endorsement
Ex.PW-2/A on the DD entry Ex.PW-2/C at 04.00 A.M. on
08.01.1997. Thereafter he proceeded to police station Janak
Puri where he handed over the said endorsement to HC
Ramesh Kumar PW-2, for registration of an FIR. HC Ramesh
Chand PW-2, recorded the FIR No.38/97 Ex.PW-2/B.
12. Pursuant thereto, SI Sita Ram returned to NIIT centre
and prepared the rough site plan Ex.PW-4/DA of the centre.
The articles recovered from the possession of the accused
persons were seized vide memos Ex.PW-3/Q and Ex.PW-3/R.
The clothes found in the bag recovered from the possession of
accused Pradeep Saini were seized vide memo Ex.PW-3/P. The
floor of the room in which the deceased was lying in an injured
condition was found to be stained with blood and one wrench
pipe was also found therein. Blood found in the said room was
lifted and seized vide memo Ex.PW-3/F. Sample control earth
was lifted and seized vide memo Ex.PW-3/H. Blood stained
earth, wrench pipe and the knife recovered from the
possession of accused Kishore Kumar were sealed and seized
vide memo Ex.PW-3/J. SI Sita Ram prepared a sketch of the
wrench pipe recovered from the centre; being Ex.PW-3/O. A
bed sheet, cap, muffler and comb which were stained with
blood were also recovered from the said room and the same
were seized vide memo Ex.PW-3/E. One lock and two keys
recovered from the centre were seized vide memo Ex.PW-3/N.
The pieces of glass stained with blood were recovered from
the centre were seized vide memo Ex.PW-3/G.
13. Thereafter SI Sita Ram recorded the disclosure
statements Ex.PW-3/A and Ex.PW-3/B of accused Kishore
Kumar and Pradeep Saini respectively, in the presence of
Satpal Bhatia PW-1, the owner of the NIIT centre. In their
respective disclosure statements it is recorded that the
accused have injured the deceased and have stolen the cash
box lying at the said centre. They have further stated that
they can get recovered the cash box, a wrench pipe and a box
of fevicol. Pursuant thereto, the accused persons led SI Sita
Ram PW-16, Const.Ram Chander PW-3, Satpal Bhatia PW-13
and Satish Raina, accountant at NIIT centre, PW-1, to nearby
bushes and vide pointing out memos Ex.PW-1/A and Ex.PW-
1/B got recovered a cash box. The said cash box was opened
with the keys provided by Satish Raina PW-1, and a sum of
Rs.62,930/- and 78 cross cheques were found therein. The
cash box was seized vide memo Ex.PW-1/C. The sum of
Rs.62,930/- and 78 cross cheques found in the cash box were
seized vide memo Ex.PW-1/D. Thereafter the accused persons
led the aforesaid persons to a DDA Park situated near District
Centre, Janak Puri, New Delhi and vide pointing out memos
PW-3/K and Ex.PW-3/L got recovered a box of fevicol.
14. A private photographer, Brij Narayan PW-7, was
summoned who took 3 photographs, Ex.PW-3/A to Ex.PW-3/C,
negatives whereof are Ex.PW-3/D to Ex.PW-3/F. SI Ravinder
Singh, (Finger Print Expert) PW-19, from the Crime Team was
summoned. Chance finger-prints were attempted to be lifted.
Vide report Ex.PW-19/A, SI Ravinder Singh PW-19, opined that
no chance prints could be lifted.
15. On the same date i.e. 08.01.1997 Const.Ram Chander
PW-3, accompanied by HC Hari Prakash took the accused
persons to DDU Hospital where the medical examination of the
accused persons was conducted. MLC Mark X-1 of accused
Kishore Kumar records that a superficial injury was found on
his left finger. MLC Mark X-2 of accused Pradeep Saini records
that no external injury was found on his person. The blood
sample of the accused persons were handed over to the police
at the hospital and the same was seized vide memo Ex.PW-
16/A.
16. On the same date i.e. 08.01.1997 the deceased
succumbed to his injuries at DDU Hospital. On the next day
i.e.09.01.1997 the body of the deceased was transferred to
the mortuary at DDU Hospital where Dr.L.K.Barua PW-10,
conducted the post-mortem and gave his report Ex.PW-10/A
which records following injuries on the person of the
deceased:-
"1. One depressed fracture on left fronto parietal
area size 9 cm x 5 cm brain matter was coming out
and wound borders abraded/lacerated.
2. Incised looking wounds left forehead 3 in nos.
on left forehead size 3 cm x 1 cm to 4 cm x 0.5 cm in
size area involvement 9 cm x 3 cm.
3. Seven stitched wounds in front and neck placed
in different directions of lenth 9 cm x 10 cm
involving an area of 18 cm x 10 cm.
4. One CLW lateral aspect of right eye 1 cm x 1
cm
5. CLW over right eye brow size 2 cm x 1 cm
6. Stitched wounds on posterior aspect of right
forearm size 5 cm in length
7. Swelling on right side of face with contusion
8. 13 numbers of surrounded scars in front of
abdomen"
17. He further opined that the injuries found on the person of
the deceased are ante-mortem in nature. That the injury found
on the head of the deceased was caused by a blunt object and
the injury found on the neck was caused by a sharp object.
That the injuries found on the head and neck of the deceased
were individually and collectively sufficient to cause death in
the ordinary course of nature. That the cause of death of the
deceased was shock associated with coma. That injury No. (1)
found on the person of the deceased was caused by a blunt
object whereas injuries Nos. (2), (3) and (4) were caused by a
sharp object. The blood stained clothes, shoes and socks of
the deceased and a blood sample on a gauze were handed
over to Const.Amar Singh PW-22, who seized the same vide
memo Ex.PW-14/DA.
18. On 13.01.1997 SI Sita Ram PW-16, obtained certain
documents from Satish Raina PW-1, which record that accused
Pradeep Saini was enrolled as a student at NIIT centre in
question. The said documents were seized vide memo Ex.PW-
1/E. On 13.02.1997 the cash box recovered at the instance of
the accused persons was sent to SI Avdesh Kumar PW-18,
Finger Print Expert, for detection of chance prints. Chance
prints were attempted to be lifted. Vide report Ex.PW-18/A, SI
Avdesh Kumar PW-18, opined that no chance prints could be
lifted. On 10.03.97 Const.Sonu Kaushik PW-20, prepared the
site plan to scale Ex.PW-20/A of the NIIT centre in question, at
the instance of SI Sita Ram.
19. On 24.03.1997 SI Sita Ram sent the wrench pipe
recovered from the possession of accused Kishore Kumar and
the knife recovered from the possession of accused Kishore
Kumar to Dr.L.K.Barua PW-10, for opinion regarding weapon of
offence. Vide opinion Ex.PW-10/F he opined that the injuries
nos. (2), (3), (4), (5), (6) and (8) found on the person of the
deceased are possible to have been caused by the knife
recovered from the possession of accused Kishore Kumar
whereas injury nos. (1) and (7) are possible to have been
caused by the wrench pipe recovered from the possession of
accused Kishore Kumar.
20. The seized materials namely, knife recovered from the
possession of accused Kishore Kumar; wrench pipe, cap,
muffler, comb, bed sheet, glass pieces and blood recovered
from NIIT Centre; clothes, shoes, socks and blood sample of
the deceased; cash box recovered at the instance of the
accused persons and the clothes recovered from the
possession of accused Pradeep Saini were sent to the FSL for a
serological examination. Vide FSL reports PW-16/PX, it was
opined that the blood group of the deceased was AB; that the
knife, wrench pipe, muffler, bed sheet, cash box, clothes of the
deceased and the clothes recovered from the possession of
accused Pradeep Saini were found to be stained with human
blood having group AB and that the cap, comb, shoes of the
deceased were found to be stained with human blood, group
whereof could not be determined.
21. Armed with the post-mortem report, the serological
report, the various seizure memos a charge sheet was filed
listing the various police officers associated with the
investigation, Satpal Bhatia and Satish Raina as the witnesses.
22. HC Ramesh Chand PW-2, deposed that the DD Entry
Ex.PW-2/C and the FIR Ex.PW-2/B were recorded by him. Brij
Narayan PW-7, deposed that the photographs Ex.PW-7/A to
Ex.PW-7/C were taken by him. Dr.A.Arora PW-11 and
Dr.Srikant PW-12, deposed that the MLC Ex.PW-9/A bears the
signatures of Dr.Rajesh Bhatt. SI Avdesh Kumar PW-18 and SI
Ravinder Singh Yadav PW-19, deposed that the reports Ex.PW-
18/A and Ex.PW-19/A were prepared by them respectively.
Const.Sonu Kaushik PW-20, deposed that on 10.03.1997 he
prepared the site plan to scale Ex.PW-20/A at the instance of
SI Sita Ram. Const.Amar Singh PW-22, deposed that he
handed over the materials given to him by the doctor after
conducting the post-mortem of the deceased to SI Sita Ram
vide memo Ex.PW-14/DA. Durga Nand Jha PW-8, the husband
of the sister of the deceased, deposed that the deceased was
employed as a security guard at NIIT centre in question and
that he identified the dead body of the deceased.
23. Dr.L.K.Barua PW-10, deposed that the post-mortem
report Ex.PW-10/A and the opinion Ex.PW-10/F regarding the
weapon of offence were prepared by him. The relevant portion
of the testimony of the witness reads as under:-
"The inside wounds mentioned in my report were not
likely to be caused if the tip of knife is bent.
Re-examination
Q. In your chief examination you have stated that
the inside woulds could be caused with knife Ex.P5
but in your cross you had stated that inside woulds
could not be caused with knife Ex.P5 which has a
bent tip.
A. It is correct that the inside wounds could be
possible by this knife it may so happen after causing
them injuries on the body of deceased the tip of the
knife may been thrust against the hard object."
24. HC Ram Kumar, Malkhana Moharrar, PW-21, deposed
that on 08.01.1997 SI Sita Ram PW-16, deposited 14 pullandas
containing the case property at Malkhana and that he made
11 entries in the Store-Room Register (Part I) Ex.PW-21/A in
said regard. On 02.04.1997 SI Sita Ram collected 10 pullandas
from him for depositing the same at FSL. The relevant portion
of the testimony of the witness reads as under:-
".....All the entries are in my hand.........
xxxx
On page No.5 Ex.PW-21/A portion C to C was written
by munshi. Entry dt.2.4.97 is in my hand but
difference in the handwriting is on account of the
fact that as my index finger of right hand is not
working properly because of injury sustained on
falling down......I suffered that injury in Jan‟ 1997 and
since them I am not able to write clearly......
Reexamination in chief by ld. APP
Q. In your chief examination you had stated that
all the entry were made by you in your handwriting
but in your cross examination you had stated that
munshis had also made the entry in their
handwriting in the said entry? How it is. Clarify?
A. On page No.2 of Ex.PW21/A from portion X to X
and on page No.5 portion C to C, the entries are not
in my hand and rest of the entries of Ex.PW21/A are
in my hand. I replied in affirmative in my
examination in chief as I was referring to only fards.
I did not give in writing for appointment of
MHCM on account of injury on my finger as SHO
knew about it. I did not obtain any medical certificate
or medical leave on account of said injury. I
sustained injury on my index finger in the last days
of Jan.‟97.
xxxx
Jwahar Singh munshi was on duty in Jan. ‟97 and I
can identify his handwriting. The entries at portion X
to X on page 2 and at portion C to C on page 5 of
21/A were not made in my presence. The entry X to
X on page 5 is in the hand of munshi Jawahar. The
entry portion mark C to C on page 5 is not in the
hand of that munshi. I cannot tell the name who
wrote this entry......."
25. HC Mukesh Kumar PW-23, deposed that the entry
pertaining to the incident in question in wireless log and diary
register Ex.PW-23/A was recorded by him. On being cross-
examined by the defence about the overwriting and difference
of handwriting in the said register, the witness stated: (Quote)
'It is correct that there is overwriting at point A on Ex.PW23/A
on the date of 8.....It is correct that writing portion mark A to A
in Ex.PW23/A is in smaller letter compared to rest of the
writing in this entry‟.
26. Gurwinder Singh PW-25 and Ram Singh PW-26 deposed
that they were functioning as Ahlmads in the Court of the
Metropolitan Magistrate in charge of PS Janak Puri in the year
1997 and that as per the record of the Court of the said
Magistrate, no copy of FIR No.38/97 was available.
27. Satish Raina PW-1, accountant at NIIT centre, turned
hostile and did not support the case of the prosecution. He
denied having witnessed recovery of any article at the
instance of the accused persons. He deposed that in the
morning of 08.01.1997 he was summoned by Satpal Bhatia to
come to NIIT centre pursuant to which he went there.
Thereafter the police took him to the police station where the
cash box of NIIT centre was lying. That he opened the said
cash box and a sum of Rs.62,930/- and some cheques were
found therein. On being cross-examined by the counsel for the
prosecution, he admitted that the memos Ex.PW-1/A and
Ex.PW-1/B bear his signatures. He refused to identify the
accused.
28. Const. Ram Chander PW-3, deposed that on 08.01.1997
at about 01.30 AM, he along with DHG Const.Rajesh Kumar
PW-4, was patrolling on a bicycle in the area around District
Centre, Janak Puri, when they saw the accused walking on the
road. They asked the accused to stop, upon which the accused
started running. They chased the accused and apprehended
them. The clothes of the accused were stained with blood and
they were carrying pithoo bags. The pithoo bags of the
accused were checked and the articles which were seized vide
memos Ex.PW-3/Q and Ex.PW-3/R were recovered from their
possession. While they were carrying personal search of the
accused, accused Kishore Kumar took out an object from the
pocket of his pant and threw the same in the nearby bushes.
The object thrown by accused Kishore Kumar was a blood-
stained knife. Thereafter he sent the aforesaid information
through wireless to the police station pursuant to which SI Sita
Ram accompanied by Const.Rajesh Kumar came to the place
where the accused were apprehended. SI Sita Ram prepared
the sketch of the knife recovered from the possession of
accused Kishore Kumar and sealed the same. SI Sita Ram
recorded the disclosure statements Ex.PW-3/A and Ex.PW-3/B
of the accused. Thereafter SI Sita Ram went to NIIT centre
leaving him, Const.Rajesh Kumar, DHG Const.Rajesh Kumar
and the accused at the „spot‟. SI Sita Ram accompanied by
Satpal Bhatia and Satish Raina returned to the spot after
admitting the deceased to the hospital. The accused got
recovered a cash box from the bushes near District Centre in
his presence. The said cash box was opened at the police
station with the keys provided by Satish Raina.
29. On being cross-examined by the learned APP as
Const.Ram Chander did not depose as was desired by the
prosecution, he stated that the disclosure statements of the
accused were recorded after return of SI Sita Ram to the spot.
That the disclosure statements of the accused were recorded
in the presence of Satpal Bhatia. The cash box was opened at
the place of its recovery. The memos Ex.PW-3/Q, Ex.PW-3/R,
Ex.PW-3/P, Ex.PW-3/F, Ex.PW-3/G, Ex.PW-3/J, Ex.PW-3/O,
Ex.PW-3/E, Ex.PW-3/N and Ex.PW-3/E were prepared by SI Sita
Ram in his presence. A box of fevicol was recovered at the
instance of the accused in his presence. He stated that he
forgot to mention the facts pertaining to the preparation of the
aforesaid memos and recovery of a box of fevicol at the
instance of the accused in his examination-in-chief. On being
questioned about his presence at the NIIT centre, he stated
(Quote): „It is correct that on nishan dehi of the accused
persons, we along with IO and accused persons went to NIIT
computer center and saw the deceased in injured condition. It
is correct that IO removed injured to DDU hospital while I with
the accused persons remained at the spot. I did not say these
facts earlier because of not properly understanding term 'spot'
and as these facts were not specifically asked in this manner'.
30. On being cross-examined by the defence about the
presence of blood on the clothes worn by the accused at the
time of their apprehension, Const.Ram Chander stated that
the clothes of the accused were stained with blood and that
the said clothes were not seized by the police. On being cross-
examined about the presence of DHG Const.Rajesh Kumar at
NIIT centre, he stated that DHG Const.Rajesh Kumar went to
NIIT centre on 08.01.1997. On being cross-examined about the
place where the disclosure statements of the accused were
recorded, he stated (Quote): 'I am not aware whether
disclosure statement of the accused persons was recorded at
the spot or after recovery.'
31. DHG Const.Rajesh Kumar PW-4, deposed that on 08.
01.1997 at about 01.30 AM he along with Const.Ram Chander
PW-3, was patrolling on a bicycle in the area around District
Centre, Janak Puri, when they saw the accused walking on the
road. They asked the accused to stop upon which the accused
started running. They chased the accused and apprehended
them. The clothes of the accused were stained with blood and
they were carrying pithoo bags. The pithoo bags of the
accused were checked and the articles which were seized vide
memos Ex.PW-3/Q and Ex.PW-3/R were recovered from their
possession. While they were carrying personal search of the
accused, accused Kishore Kumar took out an object from the
pocket of his pant and threw the same in the nearby bushes.
The object thrown by accused Kishore Kumar was a blood-
stained knife. Thereafter Const.Ram Chander PW-3, sent the
aforesaid information through wireless to the police station
pursuant to which SI Sita Ram accompanied by Const.Rajesh
Kumar came to the place where the accused were
apprehended. SI Sita Ram took the accused to the police
station and directed him to reach the police station. On
10.09.1998 the brother of accused Kishore Kumar came to his
residence and requested him to change his statement which
request was refused by him.
32. Since even Const.Rajesh Kumar did not fully support the
case of the prosecution, he was declared hostile and was
cross-examined by the learned APP. He admitted that he was
present when the sketch of the knife was drawn but stated
that this happened at the police station. On being cross-
examined by the defence whether he saw any blood stains on
the clothes of the accused Kishore Kumar, he stated that they
were not stained with blood. He was re-examined by the
learned APP. He denied that the accused were taken to the
NIIT centre from the place they were apprehended. He denied
having seen the deceased in an injured condition at the NIIT
centre.
33. Const.Rajesh Kumar PW-6, deposed that he along with SI
Sita Ram went to a place situated near District Centre, Janak
Puri in the first week of January, 1997 where they saw that the
accused had been apprehended by Const.Ram Chander PW-3
and DHG Rajesh Kumar PW-4. Const.Ram Chander handed
over a blood stained knife to SI Sita Ram. The clothes worn by
the accused were stained with blood. SI Sita Ram prepared the
sketch of the knife handed over by Const.Ram Chander.
Thereafter the accused disclosed that they have wounded a
security guard at NIIT centre situated at B-1/624, Janak Puri,
New Delhi by using a knife and a wrench pipe and have also
stolen the cash box lying at the said centre. They further
disclosed that they have left the wrench pipe at the centre and
hidden the cash box in the nearby bushes. Pursuant thereto SI
Sita Ram PW-16, Const.Ram Chander PW-3, DHG Const.Rajesh
Kumar PW-4 and he along with the accused proceeded to NIIT
centre situated at B-1/624, Janak Puri, New Delhi where they
saw the deceased lying in a badly injured and unconscious
condition in a room therein. Leaving behind him, Const.Rajesh
Kumar PW-3, DHG Const.Ram Chander PW-4 and the accused,
SI Sita Ram PW-16, removed the deceased to a hospital. A
wrench pipe was recovered from NIIT centre. A cash box was
recovered at the instance of the accused in his presence.
34. On being cross-examined by the defence about the
seizure of the clothes worn by the accused at the time of their
apprehension, he stated that the said clothes were seized at
the police station. On being questioned about the presence of
Satpal Bhatia and Suresh Raina at the time of the recording of
the disclosure statements of the accused, he stated that
Satpal Bhatia and Satish Raina were not present at the said
time. On being questioned about the presence of DHG
Const.Rajesh Kumar at NIIT centre, he stated that DHG
Const.Rajesh Kumar accompanied them from the place where
the accused were apprehended to the NIIT Centre.
35. Satpal Bhatia PW-13, who is the owner of the premises
bearing Municipal No.B-1/624, Janak Puri, New Delhi, deposed
that on 08.01.1997 at about 01.30 AM some policemen came
to his residence and informed him that a crime has been
committed in his premises and that they have apprehended
two boys in connection with the said crime. The two boys were
accompanying the policemen but he cannot identify them as it
was dark. Thereafter he saw that the deceased was lying in a
badly injured condition in a room of his premises and that the
cash box which used to remain in the said room was missing.
The policemen asked him to accompany them to the police
station upon which he went to the police station. The accused
were present in the police station and they disclosed to the
police in his presence that they have hidden the cash box in
the bushes near District Centre. Pursuant thereto, the
accused got recovered a cash box from the bushes near the
District Centre in his presence. The cash box recovered from
the accused was opened at the police station with the keys
provided by Satish Raina. The personal search of the accused
was conducted at the police station and that he signed the
memos Ex.PW-3/Q and Ex.PW-3/R in said regard. The memos
Ex.PW-3/P, Ex.PW-3/F, Ex.PW-3/G, Ex.PW-3/J, Ex.PW-3/O,
Ex.PW-3/E, Ex.PW-3/N and Ex.PW-3/E were prepared by the
police in his presence.
36. Even Satpal Bhatia was declared hostile and was cross-
examined by the learned APP. He denied the suggestion that
a box of fevicol was recovered by the police at the instance of
the accused in his presence and that Satish Raina was present
at the time of the recovery of the cash box at the instance of
the accused. He pleaded ignorance about the fact whether
accused Pradeep Saini was enrolled as a student in NIIT centre
run by him.
37. On being cross-examined by the defence about the
preparation of the memos, he stated that all the memos were
signed by him at the police station.
38. SI Sita Ram, PW-16, the Investigating Officer deposed
that on 08.01.1997 at about 01.30 AM he along with
Const.Rajesh Kumar PW-6, went to a place situated near
District Centre, Janak Puri where they saw the accused in the
custody of Const.Ram Chander PW-3 and DHG Rajesh Kumar
PW-4. Const.Ram Chander handed over a blood stained knife
to him. The accused were carrying pithu bags. He prepared
the sketch of the knife handed over by Const.Ram Chander.
Thereafter the accused disclosed that they have wounded a
security guard at NIIT centre situated at B-1/624, Janak Puri,
New Delhi by using a knife and a wrench pipe and have also
stolen the cash box lying at the said centre. They further
disclosed that they have left the wrench pipe at the centre and
hidden the cash box in the nearby bushes. Pursuant thereto,
he, Const.Rajesh Kumar PW-6, Const. Ram Chander PW-3 ,
DHG Const.Rajesh Kumar PW-4 and the accused proceeded to
NIIT centre situated at B-1/624, Janak Puri, New Delhi where
they found the deceased lying in a badly injured and
unconscious condition in a room therein. Leaving behind the
accused in the custody of Const.Rajesh Kumar PW-3, DHG
Const.Ram Chander PW-4 and Const.Rajesh Kumar PW-6, he
removed the deceased to DDU hospital. After having obtained
the MLC of the deceased and after handing over the
endorsement prepared by him to the duty officer at the police
station for the purposes of registration of the FIR, he returned
to the NIIT centre. The personal search of the accused was
conducted thereafter and the memos Ex.PW-3/Q and Ex.PW-
3/R were prepared in the said regard. The disclosure
statements Ex.PW-3/A and Ex.PW-3/B were recorded by him
pursuant to which the accused got recovered a cash box and a
box of fevicol in the presence of Satpal Bhatia PW-13, and
Satish Raina PW-1. The cash box recovered at the instance of
the accused was opened with the keys provided by Satish
Raina and a sum of Rs.62,930/- and 78 crossed cheques were
found therein. He sent the accused with Const.Ram Chander
and Hari Prakash to DDU Hospital for being medically
examined. He returned to the NIIT centre and seized the
articles found therein vide vide memos Ex.PW-3/P, Ex.PW-3/F,
Ex.PW-3/G, Ex.PW-3/J, Ex.PW-3/O, Ex.PW-3/E, Ex.PW-3/N and
Ex.PW-3/E. The case property seized by him till 08.01.1997
was deposited by him at Malkhana on the same day itself. On
02.04.1997 he collected 12 pullandas containing the case
property of the present case from Malkhana for the purposes
of depositing the same at FSL and that 2 pullandas out of 12
pullandas were returned by the FSL.
39. On being questioned whether the copy of the FIR
registered in the present case was sent to the Ilaqa Magistrate
as required by the mandate of Section 157 Cr.P.C., he stated
:(Quote) 'It is for the DO to send the copy of FIR to higher
officers. I did not record statement of DO reg. sending of that
information to higher officers Vol. It is already mentioned in
FIR recorded by me. I do not recollect if information was
actually sent to the higher officer or not. I did not record
statement of anyone who took copy of the FIR to higher
officer. I have not kept on record of this case the copy
received by MM. It is correct that statement of special report
messenger is required to be recorded. It is incorrect that I did
not record statement of special report messenger in this case
as no such special report was sent to higher officials'. On
being questioned about the presence of blood on the clothes
worn by the accused at the time of their apprehension, he
stated that the clothes of the accused were not stained with
blood. On being questioned as to where the personal search of
the accused was conducted he stated that a casual search of
the accused was conducted at the place they were
apprehended and that the formal search of the accused was
conducted at NIIT centre in the presence of Satpal Bhatia PW-
1.
40. Inspector Surender Kumar PW-17, deposed that on
receipt of the information about the incident in question he
went to NIIT centre situated at B-1/624, Janak Puri, New Delhi
at 04.30 AM on 08.01.1997. He saw a cap, a wrench pipe, a
muffler, a bed sheet lying at the said premises. He further saw
that the aforesaid articles were stained with blood.
41. On being cross-examined by the defence about the
presence of the police officers at the centre in question, he
stated that SI Sita Ram PW-16, Const.Ram Chander PW-3,
Const.Rajesh Kumar PW-6 and DHG Const.Rajesh Kumar were
found present by him at the centre.
42. In their respective examinations under Section 313 CrPC,
the accused denied everything and pleaded false implication.
The defence raised by the accused was that on 07.01.1997 the
maternal grandmother of accused Kishore Kumar had expired.
On the same day, accused Kishore Kumar along with his
mother went to a railway station to drop his mother who was
to board a train for going to the place of residence of the
maternal grandmother of accused Kishore Kumar. While
accused Kishore Kumar was returning from the railway station
he was apprehended by 3-4 policemen at Uttam Nagar, New
Delhi. The said policemen forcibly took accused Kishore Kumar
to the police station and asked him to reveal the name and
residential address of any of his acquaintance. Accused
Kishore Kumar told them the name and address of accused
Pradeep Saini who was his friend. On the next day the said
policemen took accused Kishore Kumar to the residence of
accused Pradeep Saini. On reaching the residence of accused
Pradeep Saini, accused Kishore Kumar called accused Pradeep
Saini and told him to accompany him to outside his house.
When the accused persons reached the corner of the street
where the residence of accused Pradeep Saini was situated,
some policemen forcibly made them sit in a gypsy and falsely
implicated them in the present case.
43. In support of their defence, the accused persons
examined 4 witnesses.
44. Om Parkash DW-1, the father of accused Pradeep Saini,
deposed that on 08.01.1997 at about 07.00-07.30 AM accused
Kishore Kumar along with another person whom he does not
know came to his residence and told him that he wants to
meet his son. He awoke his son and told him that his friend
had come to meet him. He went to bring water and they
started talking to each other. After sometime they went
outside. He saw his son, Kishore Kumar and the third person
sit in a gypsy. When his son did not return till afternoon he
went to the police station where the SHO told him that his son
is being interrogated and that he would be let off after
sometime. When his son was not let off till 4 PM in the evening
he again made enquiries upon which he was told that his son
is sitting in the police station and would be let off after
sometime. When his son was not let off till 6 PM he again
made enquiries upon which he was told that SHO has taken
his son to some flat and that he would be let off from there.
When he again made enquiries at about 9.00 PM in the night
he was told that his son has been lodged in a prison and that
he should get him released from the court. His son has been
falsely implicated in the present case. On being cross-
examined by the learned APP regarding the action taken by
him against the police, he stated that he did not take any
action against the police as the police officers had assured him
that they would leave his son.
45. Nirmala DW-2, the mother of accused Kishore Kumar,
deposed that on 07.01.1997 at about 8.00-9.00 P.M. she
received a telephonic call informing her about the death of her
mother Devi Bai who used to reside at village Giddpuri,
Nainital. Her son dropped her at the railway station from
where she boarded a train to go to village Giddpuri. When she
returned from village Giddpuri after three days she came to
know that her son was apprehended by the police at about
05.00 AM on 08.01.1997. Her son told her that he was
apprehended by the police when he was returning to his house
from the railway station. She produced a document Ex.DW-2/A
which records that one Devi Bai died on 07.01.1997 at village
Giddpuri.
46. Yashpal Singh DW-3, Warden, Tihar Jail, deposed
regarding the lodging of the accused persons in Tihar jail on
08.01.1997. S.K. Gupta DW-4, Metropolitan Magistrate,
deposed that on 08.01.1997 he remanded the accused
persons to Judicial Custody till 22.01.1997.
47. After considering the case in its entirety, the learned
Trial Judge has held that the testimonies of Const.Ram
Chander PW-3 and DHG Const.Rajesh Kumar PW-4, establish
that a knife and wrench pipe was recovered from the
possession of the accused persons and that the testimony of
Satpal Bhatia PW-13, establish that a cash box which used to
remain at NIIT centre in question was recovered at the
instance of the accused. The learned Trial Judge has
concluded that the facts that a knife and wrench pipe were
recovered from the possession of the accused; that the
injuries found on the person of the deceased were possible to
have caused by the said knife and wrench pipe and that a
cash box was recovered at the instance of the accused are
sufficient to bring home the guilt of the accused and has thus
convicted the accused. The learned Trial Judge has rejected
the testimony of the witnesses examined by the defence;
namely, Om Parkash DW-1 and Nirmala DW-2 on the ground
that they are „unreliable witnesses‟. However, no reason has
been given by the learned Trial Judge in reaching the said
conclusion.
48. During the hearing of the present appeal, since we were
intrigued by the fact that as to why should the accused not
carry the cash box allegedly looted by them and instead hide
the same in the bushes, vide order dated 20.07.2009, we
called for the cash box purportedly recovered at the instance
of the accused. The cash box in question was produced in
Court. It was having dimensions 15" X 9.5" x 10" and was
weighing 23 kgs. It appears that those who stole the cash box
could not easily cart away the same and hence hid it in the
bushes nearby.
49. Before proceeding to consider the merits of the present
appeal, we would like to point out two fallacies committed by
the learned Trial Judge in the impugned judgment.
50. As already noted herein above, the learned Trial Judge
has summarily rejected the evidence of the witnesses of the
defence. This approach of the learned Trial Judge is clearly
erroneous. The evidence tendered by the defence witnesses
cannot always be termed to be tainted by reason of the
factum of the witnesses being examined by the defence. The
defence witnesses are entitled to equal treatment and equal
respect as that of the prosecution and ought not to be rejected
in a casual manner. The issue of credibility and the
trustworthiness of the defence witnesses ought also to be
attributed at par with those of the prosecution. Of course, the
testimony of defence witnesses which are in the nature of bald
statements and especially where the witnesses are related to
the accused have to be subjected to great scrutiny as the
possibility of said witnesses deposing to save their near and
dear ones is very high. But, on said ground alone, i.e.
nearness of relationship the evidence cannot be thrown out.
Where the prosecution case is found to be without any
blemish, the defence evidence would obviously be tainted and
this should be the reason to discard the defence evidence.
Not on mere relationship alone.
51. Depositions of witnesses, whether they are examined on
the prosecution side or defence side or as court witnesses, are
oral evidence in the case and hence the scrutiny thereof has to
be without any predilection or bias. No witness is entitled to
get better treatment merely because he was examined as a
prosecution witness or even as a court witness. It is judicial
scrutiny which is warranted in respect of the depositions of all
witnesses for which different yardsticks cannot be prescribed.
As observed by Supreme Court in the decision reported as
Dudh Nath Pandey v State of UP AIR 1981 SC 911:-
"....Defence witnesses are entitled to equal
treatment with those of the prosecution; and courts
ought to overcome their traditional instinctive
disbelief in defence witnesses......"
52. The second fallacy committed by the learned Trial Judge
is that in para 22 of the impugned judgment it has been held
that the wrench pipe was recovered from the possession of
the accused. A perusal of the facts narrated above clearly
shows that the wrench pipe was not recovered from the
possession of the accused. The correct position is that, as per
the prosecution, the wrench pipe was found pursuant to the
information provided by the accused.
53. The case in hand is based on circumstantial evidence.
There is no direct evidence to prove the complicity of the
accused in the crime with which they were charged. The
circumstances sought to be used by the prosecution to prove
the guilt of the accused can be enumerated as under:-
I Recovery of the clothes which were found to be stained
with the blood group of the deceased from the possession of
accused Pradeep Saini.
II Recovery of the knife which was found to be stained with
the blood group of the deceased from the possession of
accused Kishore Kumar.
III Recovery of the injured body of the deceased pursuant
to the information provided by the accused as per their
disclosure statements.
IV Recovery of wrench pipe which was found to be stained
with blood group of the deceased pursuant to the disclosure
statement of the accused.
V Recovery of the cash box which was found missing at
NIIT centre at the instance of the accused.
VI Recovery of a box of fevicol at the instance of the
accused.
VII Presence of an injury on the finger of accused Kishore
Kumar.
54. The well known principles governing circumstantial
evidence are that :- (a) the circumstances from which the
inference of guilt of the accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from
those circumstances; (b) the circumstances are of a
determinative tendency unerringly pointing towards the guilt
of the accused; (c) the circumstances, taken collectively, are
incapable of explanation on any reasonable hypothesis save
that of the guilt sought to be proved against him and (d) a
conviction can be based on circumstantial evidence if it is of
such a character that the same is wholly inconsistent with the
innocence of the accused and is consistent only with his guilt.
The incriminating circumstances that are being used against
the accused must be such as to lead only to a hypothesis to
reasonably exclude every possibility of his innocence.
55. As is apparent from the facts narrated above, the case
set up by the prosecution against the accused depends wholly
upon the testimonies of the police officers who were
associated with the investigation of the present case as also
the testimony of Satpal Bhatia PW-13 and Satish Raina PW-1.
As noted above PW-1 has not supported the case of the
prosecution.
56. What should be the approach of the court while
appreciating ocular evidence of a police officer? The answer to
the question lies in the following observations made by
Supreme Court in the decision reported as Kalpnath Rai v.
State (1997) 8 SCC 732:
"As a legal proposition it was argued that it would be
unsafe to base a conclusion on the evidence of
police officers alone without being supported by at
least one independent person from the locality. To
reinforce the said contention Shri V.S. Kotwal, Senior
Advocate cited the decision of this Court in Pradeep
Narayan Madgaonkar & Ors. v. State of Maharashtra
(1995) 4 SCC 255 wherein want of independent
witnesses of the locality rendered suspicious a raid
conducted by the police.
There can be no legal proposition that evidence of
police officers, unless supported by independent
witnesses, is unworthy of acceptance. Non-
examination of independent witness or even
presence of such witness during police raid would
cast an added duty on the court to adopt greater
care while scrutinising the evidence of the police
officers. If the evidence of the police officer is found
acceptable it would be an erroneous proposition that
court must reject the prosecution version solely on
the ground that no independent witness was
examined. In Pradeep Narain Madgaonkar (supra) to
which one of us (Mukherjee, J) is a party, the
aforesaid position has been stated in unambiguous
terms, the relevant portion of which is extracted
below:
Indeed, the evidence of the official
(police) witnesses cannot be discarded
merely on the ground that they belong to
the police force and are, either interested
in the investigation or the prosecuting
agency but prudence dictates that their
evidence needs to be subjected to strict
scrutiny and as far as possible
corroboration of their evidence in material
particulars should be sought. Their desire
to see the success of the case based on
their investigation; requires greater care
to appreciate their testimony." (Emphasis
Supplied)
57. In the backdrop of the afore-noted legal principles, we
shall examine the case set up by the prosecution against the
accused.
58. At the outset, we reject circumstances VI and VII noted in
para 53 above.
59. It is settled legal position that the connection between
the object recovered and the offence with which an offence is
charged must always be established by evidence „alinude‟. In
the instant case, there is no evidence to show that the fevicol
was used by the accused persons in commission of the crime
with which they were charged.
60. As already noted herein above, MLC Mark - X1 of
accused Kishore Kumar records that an injury was found on his
finger. Nothing much turns on the said fact inasmuch as
prosecution failed to prove the said MLC. It may also be noted
here that SI Sita Ram PW-16, deposed that Const.Ram
Chander PW-3, took the accused persons to DDU hospital for
being medically examined whereas Const.Ram Chander has
not deposed a word about the said fact in his testimony. The
MLC has remained unproved and hence not an exhibited
document but only a marked document.
61. The entry pertaining to the incident in question in
wireless log and diary register Ex.PW-21/A which was recorded
on the basis of the information provided by Const.Ram
Chander PW-3, records that the clothes of the persons who
were apprehended by Const.Ram Chander PW-3 and DHG
Rajesh Kumar PW-4, were stained with blood. The evidence of
the witnesses of the prosecution namely, Const.Ram Chander
PW-3, DHG Const.Rajesh Kumar PW-4, Const.Rajesh Kumar
PW-6 and SI Sita Ram PW-16, is most ipsi-dixit on the point of
the presence of the blood on the clothes worn by the accused
at the time of their apprehension. Whereas Const.Ram
Chander PW-3 and Const.Rajesh Kumar PW-6, have deposed
that the clothes worn by the accused at the time of their
apprehension were stained with blood, SI Sita Ram PW-16
deposed that the clothes of the accused were not stained with
blood. DHG Const.Rajesh Kumar PW-4, deposed in his
examination in chief that the clothes worn by the accused at
the time of their apprehension were stained with blood but in
his cross-examination he stated that the clothes of accused
Kishore Kumar were not stained with blood. Likewise, there is
contradiction in the evidence of the said witnesses on the
point of seizure of clothes worn by the accused at the time of
their apprehension. Whereas Const.Ram Chander PW-3, has
deposed that the clothes worn by the accused at the time of
their apprehension were not seized, Const.Rajesh Kumar PW-
6, has deposed that the clothes worn by the accused were
seized at the police station.
62. There is no evidence to show that the clothes worn by
the accused at the time of their apprehension were seized by
the police. Had the clothes worn by the accused at the time of
their apprehension were stained with blood as recorded in the
wireless log and diary register Ex.PW-21/A, the police would
have surely seized them.
63. There is yet another fallacy in the case of the
prosecution pertaining to the clothes worn by the accused at
the time of their apprehension. As per the prosecution, blood
stained clothes were found in the pithoo bag of accused
Pradeep Saini. Assuming that the clothes worn by the accused
at the time of their apprehension were stained with blood, it
implies that the accused did not change the clothes worn by
them at the time of commission of the crime. In such a case,
the question which arises is that, if accused Pradeep Saini did
not change the clothes worn by him at the time of commission
of the crime, then where was the occasion of recovery of blood
stained clothes from his bag.
64. The afore-noted circumstances very strongly indicate
that the clothes worn by the accused at the time of their
apprehension were not stained with blood, which in turn raises
serious doubt on the fact whether the accused were the
persons who were apprehended by Const.Ram Chander PW-3
and DHG Rajesh Kumar PW-4 near District Centre, Janak Puri.
65. So different at the versions given by the police officers
that one is left wondering whether the clothes allegedly
recovered from the pithoo bag were the ones which were
stained with blood or the clothes worn by the accused were
stained with blood and were hence seized. As would be
evident from a possibility which is likely to have happened,
something would turn on this and we shall be discussing it a
little later.
66. In the instant case, save and except a bald statement of
HC Ramesh Chand PW-2, the scribe of the FIR Ex.PW-2/B, that
he sent a copy of the FIR registered in the present case to
Ilaqa Magistrate through Const.A.K.Babu, there is no evidence
to show that the copy of the FIR Ex.PW-2/B was sent to the
Ilaqa Magistrate. On the contrary, the depositions of SI Sita
Ram PW-16, that he has no knowledge whether the copy of
the FIR Ex.PW-2/B was sent to the Ilaqa Magistrate and that he
did not record the statement of the police official who
delivered the copy of the FIR Ex.PW-2/B being sent to the Ilaqa
Magistrate, coupled with the fact that a copy of the FIR Ex.PW-
2/B was not available in the record of the court of the
concerned Magistrate strongly shows that the copy of the FIR
Ex.PW-2/B was not sent to the Ilaqa Magistrate as required by
Section 157 Cr.P.C.
67. Section 157(1) Cr.P.C. requires the FIR/special report to
be sent „forthwith‟ to the Magistrate competent to take
cognizance of the offence. The forwarding of the FIR/special
report is indispensable, absolute and it has to be forwarded at
the earliest which intention is implicit in the use of the word
„forthwith‟. It has dual purpose: firstly to avoid the possibility
of improvement in the prosecution story and the introduction
of any distorted version by deliberations and consultation and
secondly to enable the Magistrate concerned to have a watch
on the progress of investigation. Failure on the part of the
police to comply with Section 157(1) Cr.P.C. would lead to a
grave suspicion that the police was concocting false evidence.
Quite often there is a valid reason for non-compliance of
Section 157(1) CrPC and it is not always a circumstance on the
basis of which the entire prosecution may be said to be
fabricated, but it all depends on the facts and circumstances
of each case. In some cases non-compliance may lead to
serious consequences.
68. What is the effect of non-compliance of Section 157(1)
Cr.P.C. in the present case? In this regard, it is most important
to note the entry pertaining to the instant case recorded in
wireless log and diary register Ex.PW-21/A, which entry has set
the criminal law in motion in the present case. HC Ram Kumar
PW-21, scribe of the said entry, has admitted that there is an
overwriting in the date 08.01.1997 written in the said entry as
also difference in the handwriting contained in the said entry.
The witness has not been able to explain the said
discrepancies occurring in the entry recorded in wireless log
and diary register Ex.PW-21/A. It is also most important to
note the defence of the accused that they were forcibly lifted
by the police.
69. The facts that there is manipulation in the document that
has set the criminal law in motion in the present case and that
copy of the FIR registered in the present case was not sent to
the Ilaqa Magistrate, when analyzed in the light of the defence
of the accused leads to the strong inference that the FIR
Ex.PW-2/B was manipulated by the police. In any case the
possibility of it having been so manipulated cannot be ruled
out.
70. Another circumstance which needs to be highlighted is
that as per the case of the prosecution the sketch Ex.PW-3/D
of the knife purportedly recovered from the possession of
accused Kishore Kumar was prepared before the registration
of the FIR Ex.PW-2/B. Surprisingly, sketch Ex.PW-3/D of the
knife contains the number of the FIR registered in the present
case. The prosecution has not offered any explanation
whatsoever as to under what circumstances number of the FIR
Ex.PW-2/B has appeared on the document, which was
allegedly prepared before registration of the FIR. This gives
rise to two inferences; either the FIR Ex. PW-2/B was recorded
prior to the alleged recovery of the knife or number of the said
FIR was inserted in said document after its registration. In
both the situations, it seriously reflects upon the veracity of
the prosecution version and creates a good deal of doubt
about recovery of the knife in the manner alleged by the
prosecution.
71. An analysis of the testimonies of the police officers who
were associated with the investigation of the present case;
namely Const.Ram Chander PW-3, DHG Rajesh Kumar PW-4,
Const.Rajesh Kumar PW-6 and SI Sita Ram PW-16, and Satpal
Bhatia PW-13, shows that there are serious discrepancies in
their testimonies which raise a big question mark on the
truthfulness of the evidence given by them. The discrepancies
in the testimonies of the said witnesses are as under:-
A. Const.Ram Chander PW-3, in his examination-in-chief did
not depose a word about the seizure memos prepared by SI
Sita Ram PW-16, at NIIT centre. The explanation given by him
for said omission that he forgot to mention the facts pertaining
to the said seizure memos does not inspire confidence.
B. Const.Ram Chander PW-3, deposed in his examination-in-
chief that the cash box recovered at the instance of the
accused persons was opened at the police station whereas in
his cross-examination he stated that the same was opened at
the place of its recovery.
C. Const.Ram Chander PW-3, in his examination in chief
claimed to have witnessed the recording of the disclosure
statements by SI Sita Ram however in his cross-examination
he stated that he is not aware about the place of the recording
of the disclosure statements of the accused persons.
D. DHG Rajesh Kumar PW-4, deposed that the accused were
taken to the police station from the place of their
apprehension; that the accused were not taken to NIIT centre
and that he did not go to the NIIT centre, which testimony is in
complete contradiction to the testimony of Const.Ram Chander
PW-3, Const.Rajesh Kumar PW-6 and SI Sita Ram PW-16, that
the accused were taken to NIIT centre from the place of their
apprehension and that DHG Const.Rajesh Kumar was present
at NIIT centre at the time when investigation of the present
case was conducted there.
E. DHG Rajesh Kumar PW-4, deposed that the sketch of the
knife was prepared at the police station whereas as per the
witnesses; Const.Ram Chander PW-3, Const.Rajesh Kumar PW-
6 and SI Sita Ram PW-16, the same was prepared at the place
of apprehension of the accused.
F. Const.Rajesh Kumar PW-6, deposed that Satpal Bhatia
was not present at the time of the recording of the disclosure
statements of the accused persons whereas Const.Ram
Chander PW-3 and SI Sita Ram PW-16, deposed to the
contrary.
G. Satpal Bhatia PW-13, deposed that he along with the
police officers went to the police station from NIIT centre and
thereafter to the place of recovery of the cash box whereas as
per the witnesses; Const.Ram Chander PW-3, Const.Rajesh
Kumar PW-6 and SI Sita Ram PW-16, they along with Satpal
Bhatia proceeded straight to the place of recovery of cash box
from NIIT centre.
H. Satpal Bhatia PW-13, deposed that the cash box
recovered at the instance of the accused persons was opened
at the police station whereas as per Const.Ram Chander PW-3
and SI Sita Ram PW-16, the same was opened at place of its
recovery.
I. Satpal Bhatia PW-13, deposed that the personal search of
the accused persons was conducted at the police station
whereas as per SI Sita Ram PW-16, the same was conducted at
NIIT centre.
J. Satpal Bhatia PW-13, deposed that no box of fevicol was
recovered at the instance of the accused persons in his
presence whereas SI Sita Ram PW-16, deposed to the contrary.
K. Satpal Bhatia PW-13, deposed that Satish Raina was not
present at the time of recovery of cash box at the instance of
the accused persons whereas Const.Ram Chander PW-3 and SI
Sita Ram PW-16, deposed to the contrary.
L. Inspector Surender Kumar PW-17, deposed that he went
to NIIT centre on 08.01.1997 however, none of the other police
officers have deposed a word about his presence at NIIT centre
on 08.01.1997 or the role played by him in the investigation in
the present case.
72. Another circumstance which is worth noticing is that
there is a delay of three months in sending the case property
to the FSL. The fact that case property was sent to the FSL
very late, is not always fatal to a case. In a given case it may
be fatal and in a given case it may not be fatal. (See the
decision of Division Bench of this Court in Criminal Appeal
No.726/2005 titled as 'Ahmed Ali Sardar vs. State' decided on
06.04.2009)
73. In said regard, it is most important to note the testimony
of HC Ram Kumar, PW-21, Malkhana Moharrar. As already
noted herein above, he deposed in his examination-in-chief
that all the entries pertaining to the case property in Malkhana
Register Ex.PW-21/A were made by him. On being confronted
with two entries made in the said register in his cross-
examination, he stated that the said two entries were made by
his Munshi. However, he further stated in his cross-
examination that one of the said two entries is not in the
handwriting of his Munshi and that he does not know who has
recorded the said entry. It is also significant to note that HC
Ram Kumar PW-21, deposed that on 02.04.1997 he handed
over 10 pullandas to SI Sita Ram PW-16, for the purposes of
depositing the same at FSL whereas SI Sita Ram PW-16,
deposed that he collected 12 pullandas from FSL on
02.04.1997. It is further significant to note that SI Sita Ram
PW-16, deposed that two out of 12 pullandas sought to be
deposited by him at FSL were rejected by the FSL.
74. In view of the facts noted in para 73 above, the delay of
three months in sending the case property to FSL casts serious
suspicion on the genuineness of the materials which were sent
to FSL for serological examination.
75. It is also significant to note the deposition of Dr.L.K.Barua
PW-10, that the injuries found on the person of the deceased
could not have been caused by the knife having a bent tip. The
aforesaid deposition has cast some doubt on the fact that
whether the knife purportedly recovered at the instance of
accused Kishore Kumar was used to inflict the injuries found on
the person of the deceased inasmuch as the tip of the said
knife was bent.
76. As is apparent from the facts narrated above, cash box
purportedly recovered at the instance of the accused was
recovered pursuant to the disclosure statements made by both
the accused.
77. The legal position pertaining to joint disclosure
statements was discussed by Supreme Court in the decision
reported as State v Navjot Sandhu AIR 2005 SC 3820 in
following terms:-
"Before parting with the discussion on the subject of
confessions under Section 27, we may briefly refer to
the legal position as regards joint disclosures. This
point assumes relevance in the context of such
disclosures made by the first two accused viz. Afzal
and Shaukat. The admissibility of information said to
have been furnished by both of them leading to the
discovery of the hideouts of the deceased terrorists
and the recovery of a laptop computer, a mobile
phone and cash of Rs. 10 lacs from the truck in
which they were found at Srinagar is in issue.
Learned senior counsel Mr. Shanti Bhushan and Mr.
Sushil Kumar appearing for the accused contend, as
was contended before the High Court, that the
disclosure and pointing out attributed to both cannot
fall within the Ken of Section 27, whereas it is the
contention of Mr. Gopal Subramanium that there is
no taboo against the admission of such information
as incriminating evidence against both the
informants/accused. Some of the High Courts have
taken the view that the wording "a person" excludes
the applicability of the Section to more than one
person. But, that is too narrow a view to be taken.
Joint disclosures to be more accurate, simultaneous
disclosures, per se, are not inadmissible under
Section 27. 'A person accused' need not necessarily
be a single person, but it could be plurality of
accused. It seems to us that the real reason for not
acting upon the joint disclosures by taking resort to
Section 27 is the inherent difficulty in placing
reliance on such information supposed to have
emerged from the mouths of two or more accused at
a time. In fact, joint or simultaneous disclosure is a
myth, because two or more accused persons would
not have uttered informatory words in a chorus. At
best, one person would have made the statement
orally and the other person would have stated so
substantially in similar terms a few seconds or
minutes later, or the second person would have
given unequivocal nod to what has been said by the
first person. Or, two persons in custody may be
interrogated separately and simultaneously and both
of them may furnish similar information leading to
the discovery of fact. Or, in rare cases, both the
accused may reduce the information into writing and
hand over the written notes to the police officer at
the same time. We do not think that such disclosures
by two or more persons in police custody go out of
the purview of Section 27 altogether. If information
is given one after the other without any break almost
simultaneously, and if such information is followed
up by pointing out the material thing by both of
them, we find no good reason to eschew such
evidence from the regime of Section 27. However,
there may be practical difficulties in placing reliance
on such evidence. It may be difficult for the witness
(generally the police officer), to depose which
accused spoke what words and in what sequence. In
other words, the deposition in regard to the
information given by the two accused may be
exposed to criticism from the stand point of
credibility and its nexus with discovery. Admissibility
and credibility are two distinct aspects, as pointed
out by Mr. Gopal Subramanium. Whether and to
what extent such a simultaneous disclosure could be
relied upon by the Court is really a matter of
evaluation of evidence. With these preparatory
remarks, we have to refer to two decisions of this
Court which are relied upon by the learned defence
counsel." (Emphasis Supplied)
78. From the afore-noted observations, it is clear that in
order to place reliance upon a recovery made pursuant to a
joint disclosure statement it is important the witness to the
recovery in question should state about the words spoken by
the accused in their disclosure statements and the sequence
in which they pointed out the object which was recovered.
79. In the instant case, none of the witness to the recovery
of cash box have stated as to what were the words spoken by
the accused at the time when they got recovered the cash box
or the sequence in which the accused pointed out the cash
box in question. In such circumstances, no credence can be
placed on the evidence pertaining to purported recovery of
cash box at the instance of the accused.
80. As per the prosecution the owner of the NIIT centre
where the crime took place namely Satpal Bhatia PW-13 was
summoned after the accused had already made a disclosure
statement and pursuant thereto had led the police officers to
the place of the crime. How is it that Satpal Bhatia PW-13 is a
witness to the disclosure statement? Satpal Bhatia PW-13 has
given the answer. He states that the disclosure statement of
the accused was recorded in his presence in the police station.
He speaks to be speaking the truth for indeed his signatures as
a witness are to be found on the disclosure statements.
81. Thus, everything pertaining to the disclosure statements
made by the accused becomes highly tainted inasmuch as
Satpal Bhatia could not have been summoned by the
investigating officer unless the police knew that a crime had
been committed in his building and if the accused were the
criminals, the said fact would have come in the knowledge of
the police only after the accused disclosed the same. But, this
has not happened. It probablizes that two boys were caught
by the police and told of the crime committed by them, but
managed to give a slip to Const.Ram Chander and
Const.Rajesh Kumar who were on patrol duty or may be to SI
Sita Ram. It would have been embarrassing for the police to
have solved a crime without criminals in their hands. The
appellants became the scapegoat. Kishore Kumar became the
first victim as he was returning to his house from the railway
station after leaving his mother who boarded a train to go to
her village as her mother had expired. Another accused was
needed. Pradeep Saini, a friend of Kishore Kumar was
conveniently roped in. This explains the police recovering the
injured chowkidar from the NIIT centre and getting him
admitted at the hospital.
82. Though in a different context, but the principle of law laid
down in the decision reported as AIR 1979 SC 1408 Suraj Mal
vs. The State (Delhi Administration), may be noted. Where
substantial evidence of the prosecution is found to be tainted
or is not reliable, few incriminating pieces of evidence have to
be treated with doubt.
83. The appellants would thus be entitled to a benefit of
doubt.
84. The appeal is allowed. Impugned judgment and order
dated 5.12.2000 is set aside. The appellants are acquitted of
the charge framed against them. The appellants are on bail
the bail bond and surety bonds furnished by the appellants are
discharged.
(PRADEEP NANDRAJOG)
JUDGE
(INDERMEET KAUR)
JUDGE
September 09, 2009
mm/dk
