Delhi High Court
Devender Kumar vs State on 29 July, 2011
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 07.04.2011
PRONOUNCED ON: 29.07.2011
+ CRL.A. No. 844/2001
DEVENDER KUMAR ..... Appellant
Through : Mr. Rajesh Mahajan, Advocate.
CRL.A.No. 972/2001
PREETAM ..... Appellant
Through : Mohd. Nasir, Advocate
CRL.A. No. 356/2002
HIMMAT ..... Appellant
Through : Mr. Rajesh Mahajan, Advocate
CRL.A. No. 357/2002
SHYAM LAL ..... Appellant
Through : Mr. Rajesh Mahajan, Advocate
Versus
STATE ..... Respondent
Through : Mr. Lovkesh Sawney, APP
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE G.P. MITTAL
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 1
MR. JUSTICE S.RAVINDRA BHAT
%
1. These four appeals impugn a common judgment and order of learned Additional Sessions
Judge, Delhi dated 19.10.2001 in SC No.16/2000.
2. The prosecution case briefly was that Parvesh, the Appellant Shyamlal's daughter had an
affair with Mahesh (hereafter referred to as "the deceased") and had eloped with him in
December 1999. Shyam Lal had lodged a missing person report with the Police. The prosecution
contended that on 23.03.2000 Mahesh and Parvesh went to Surender's, (an Electrician's) shop at
Najafgarh; he was Mahesh's friend. Shyam Lal, Himmat, Pritam and Devender, the Appellants
in this case (referred to hereafter by their names), alongwith some others, reached there in a Tata
Sumo Car -DL4CF 9386. It was stated that Surender had previously received a telephone call
from Mahesh informing him that Parvesh's parents had agreed to his marriage with her and that
they would be visiting him (Surender) on 22.03.2000. On that day i.e. 23.03.2000 Parvesh and
Mahesh reached Surender's shop. All the four appellants (who reached there later, along with
Parvesh's mother Rajindri), took Parvesh and Mahesh away with them. Subsequently on
26.03.2000 Mahesh's dead body was discovered near the Nazafgarh drain, near Chawla Bridge.
The body showed injury marks and it appeared that Mahesh had died on account of beating.
Surender (hereafter referred to as "PW-12") and Mahesh's brother Umesh (hereafter referred to
as "PW-9") identified the dead body at Subzi Mandi mortuary. A post mortem was conducted
which indicated that the dead body had several injuries on various parts of the body; death was
caused by throttling. An FIR was registered, and investigation commenced. The prosecution
alleged that the deceased was taken from Surender's shop in a Tata Sumo to Gurgaon where he
was subjected to beating by the appellants. From Gurgaon he was taken to Roshan Vihar at
Najafgarh where he was again beaten. The prosecution alleged that due to the injuries and
beating, the deceased could have raised an alarm. He was shifted to some other place. It was
alleged that Lalit @ Pinki arranged a Maruti van no. HR26F6207, which belonged to Deepak @
Deepu. The four appellants sat in the Maruti Van and took Mahesh with them; they proceeded to
village Shikharpur where they called Jagmohan @ Jag and Sunil @ Pappu and talked with them.
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 2
3. The prosecution alleged that Jag and Pappu were friendly with Devender. They sat in the
van at his (Devender's) insistence and headed to Gurgaon through the fields. It is alleged that
after a short distance Devender stopped the van and along with the appellants took them aside in
the pretext of having some deliberations. It was alleged that Deepak heard some noises and
screams and then he saw that Jag was holding the deceased's hand, whereas Sunil and Shyamlal
were holding the deceased's head. Devender had a hockey stick with him; Himmat had a danda
and they were beating the deceased. The Appellant Pritam was instigating others to beat
Mahesh. Deepak is reported to have stated that, (when he enquired why this was done), the
accused told him that the deceased Mahesh had spoiled their honour and would not be spared.
They also threatened Deepak, upon which he left the spot. After some time, Jag and Sunil
brought back the Maruti van and left.
4. The prosecution alleged that the appellants were subsequently arrested. Pursuant to their
disclosure statements when they lead the Police to various places where the deceased had been
taken, weapons of offences such as hockey stick and thapi were recovered. The prosecution
alleged that after the incidents narrated by Deepak the deceased was brought once again to
Roshan Vihar where again he was beaten. The appellants allegedly conspired to get rid of him
since he had suffered series injuries. Devender caught hold of Mahesh legs; Pritam and Himmat
caught hold of his hands and Shyam Lal sat on his chest and strangulated him till he died. All
this happened in the morning of 23.03.02000. Shyamlal allegedly sent Himmat to arrange a
vehicle to dispose of the body. He hired a Maruti Car No.DL1CB2554 driven by Sukhbir @
Billu. He declined to take Mahesh because he suspected that he had died. It is stated that
Himmat sat on the driver's seat of the vehicle stating to Sukhbir that he should wait there and
that they are taking the Mahesh to the hospital. It was alleged that Himmat sat on the driver's
seat (of the said Maruti van) with Devender by his side; Shyamlal and Pritam sat on the rear
seat and Mahesh was laid in between the two seats. It was alleged that appellants threw his body
near Chawla village near a bridge at a lonely place and returned the vehicle to the driver. The
appellants were charged with offence under Sections 302/308/I20B/201/34 IPC. They entered
the plea of not guilty and claimed trial. By the impugned judgment and order the trial court
convicted all the Appellants.
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 3
Appellants‟ submissions
5. It is urged that the entire prosecution story is built round circumstantial evidence, and that
the accused- Appellants were "last seen" in the company of the deceased. The Appellants rely on
the judgment reported as Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622,
and urge that the court has to tread with care and caution while basing a conviction solely on
circumstantial evidence, and avoid the danger of converting suspicion into proof. Reliance is also
placed on Hanumant Govind Nargundkar v. State of M.P. AIR 1952 SC 343, Dharam Das
Wadhwani v. State of UP 1974 SCC (Crl.) 429 and State of Haryana v. Jagbir Singh & Anr.
2004 SCC (Crl.) 126.
6. It is urged that broadly the circumstances of "last seen" alleged against the appellants by
the prosecution were that the deceased was seen last with the Appellants by PW 12 - Surender.
The body of the deceased was recovered on 25.03.2000 at about 11.26 AM by DD No.15A -
Ex.PW10/A, near Baru Sarai. The said DD No.15A was made the basis of the FIR in the present
case. The body was, according to the prosecution, identified as that of Mahesh by PW-9 Umesh
and PW 12 Surender Kumar, on 27.3.2000. Learned counsel submitted that PW12 was projected
as the solitary witness of last seen, on whose testimony the case of the prosecution rests. Here,
the appellants relied on the decision reported as Bodhraj @ Bodha and Ors. v. State of Jammu
and Kashmir (2002) 8 SCC 45, where it was held that:
"31. The last-seen theory comes into play where the time-gap between
the point of time when the accused and the deceased were last seen alive
and when the deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime becomes
impossible. It would be difficult in some cases to positively establish that
the deceased was last seen with the accused when there is a long gap and
the possibility of other persons coming in between exists. In the absence of
any other positive evidence to conclude that the accused and the deceased
were last seen together, it would be hazardous to come to a conclusion of
guilt in those cases."
Learned counsel emphasized that the dead body was recovered on 25.03.2000 at around 11.26
AM. The postmortem was conducted on the dead body on 28.03.2000. Time since death was
given as 6-7 days approximately. Counsel for the Appellant submitted that to calculate this time
gap between the point of time when the deceased were last seen alive and when the deceased
was found dead as referred to in Bodhraj‟s case (supra), it was incumbent on the prosecution to
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 4
prove the point of time when the accused and deceased were last seen alive. This crucial aspect,
according to the Appellants, the prosecution failed to prove in the present case. PW-12 in his
testimony did not give the date when he allegedly saw the accused and the deceased at his shop.
In fact he deposed "I cannot give the date when Shyamlal and others came to my shop in Sumo
to take away Mahesh for my shop." Therefore, when date and time of alleged last seen was
unclear, it could not be conclusively said that the time gap between the point of time when
accused and the deceased were last seen alive and when the deceased was found dead, was so
small to rule out the possibility of someone, other than the accused, having committed the
crime.
7. The Appellant relied on the testimony of PW-8 Govind, (the deceased's landlord) who
deposed that the deceased had a quarrelsome nature. Given these circumstances, applying the
ratio in Bodhraj, the possibility of somelese having committed the offence could not be ruled
out. It is next submitted that even otherwise, PW 12 in his testimony stated that Mahesh and
Parvez came to his shop two days after Holi in 2000. He further deposed that in the meantime
8-10 persons including the appellants came in a Tata Sumo. The learned counsel argued that
though the prosecution failed to prove when Holi was celebrated in the year 2000, yet judicial
notice of the fact that in that 2000 Holi was on March 19 can be taken. That implies that the
date of last seen (two days after Holi) deposed by the PW 12 would be 21.03.2000. This, urged
counsel, is corroborated by PW-12's statement that after 5-6 days he was called by the Umesh,
brother of Mahesh in P.P. Madipur. He further deposed that he went to identify the dead body
on day next day to his going to P.P. Madipur with Umesh. By reverse calculation, the date of
last seen can also be arrived at from this aspect in the following manner. As per documentary
evidence on record, the body was identified by this witness on 27.03.2000. According to the
witness PW-12, body was identified the "next day", on reverse calculation, one day prior would
make it 26.03.2000 when the witness went to PP Madipur PW 9 Umesh. 5/6 days prior to this
date of 26.3.2000, deposed to by this witness would mean that the relevant date was 20th or 21st
of March. Therefore, as per this calculation, the "last seen" date works out to 20th or 21st of
March, 2000. Both these dates, however do not fit the prosecution case, because according to it,
the date of "last seen" was 22.03.2000 and not any other date. Learned counsel submitted that it
is impermissible in law to make out a new case than the story projected by the prosecution to
establish guilt of the accused. Reliance in this regard is placed on Bhagirath v. State of MP
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 5
1975 SCC Crl. 742. The shift in the date of "last seen" by PW-12 is fatal to the case of the
prosecution. It is urged that the date, 20/21 March, 2000, arising from PW-12's testimony of
PW-12, does not find corroboration from any other quarter. Even the first charge framed
against the appellants, the date of alleged kidnapping, (which is the date of last seen too), is
given as 22.3.2000.
8. The Appellant urges that the date (s) of last seen given by PW-12 in court is also
contradicted by the testimonies of PW 9 Umesh and the police witnesses, who recorded the
statements of witnesses according to whom the date of last seen was 22.03.2000. This
inconsistency in date of last seen cannot be termed as minor as it goes to the root of the case for
the reason that the entire circumstances of last seen depends upon the time gap referred to above
in Bodhraj‟s case (supra). On account of inability of the prosecution to conclusively prove the
time of last seen, the circumstance of last seen must fail and benefit of such discrepancy has to
go to the accused.
8. Learned counsel submitted that another factor is that the time gap between the alleged
last seen and the recovery of dead body in the present case was 3 days if last seen is taken as
22.03.2000 (as deposed by PW-9) and 4/5 days if taken as 20/21 March 2000 (as deposed by
PW-12). Relying on State of Maharashtra v. Annappa Bandhu Kavatage AIR 1979 SC 1410,
where the last seen was on 26 July 1974 and the body was recovered on the next day from a
well, the Supreme Court held that
"as there was sufficient interval between the death of the boy and the recovery of the
body, the link in the chain of circumstantial evidence does not appear to be fully
complete."
In the present case the interval of time is much more. It was further urged, relying on Mohibur
Rahman v. State of Assam AIR 2002 SC 3064 that the circumstance of last seen together does not
by itself and necessarily lead to the inference that it was the accused who committed the crime.
There must be something more establishing connectivity between the accused and the crime.
The test of proximity of place and time was discussed. If last seen is a few unsure or
unascertainable days before death,- urged the Appellant's counsel- as in the present case, the
"last seen" evidence is of no consequence. Learned counsel also relies on Phool Singh v. State
(Crl. A.412/2001, rendered by Division Bench of this High Court on 1st September 2009), where
it was held that "last seen" evidence becomes lethal and incriminating evidence, depending upon
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 6
the ;circumstances of a case, with a proximate nexus between the time of last seen and the time
of death of the deceased as also the proximity of the place where the deceased and the accused
were last seen alive and the place wherefrom the dead body was recovered. It was also urged that
in any case, last seen evidence by itself is a weak type of evidence and cannot form the sole basis
of conviction. Reliance is placed on Inderjeet Singh v. State of Punjab AIR 1991 SC 1674, Shera
Singh v. State of Punjab 1996 SCC (Crl) 1271, Anant Bhujangrao Kulkarni v. State of
Maharashtra AIR 1993 SC 110, Lakhanpal v. State of MP AIR 1979 SC 1620, Ramesh Babulal
Doshi v. State of Gujarat 1996 SCC (Crl) 972 and Ramreddy Rajeshkhanna Reddy v. State of AP
2006 (3) SCALE 452.
9. It was argued that another circumstance is that PW 12 deposed that the deceased was
last seen with 8-10 persons. In the absence of any eye witness to the actual assault, it could not
have been possible for the prosecution to pin point that only four of those 8-10 persons, namely
the appellants, were responsible for kidnapping and murder of deceased Mahesh. Reliance in
this regard is placed on Pohalya Motya Valvi v. State of Maharashtra AIR 1979 SC 1949.
Where it was held that when the deceased was last seen with two accused and one was
acquitted, it cannot be said that only the convicted accused had to account for disappearance of
the deceased. Relevant extracts of the judgment are as follows:
"9. ..... According to Bhikjya all the three, i.e., deceased, appellant
and Bhamta left his house together. Undoubtedly thereafter
deceased was not seen alive by anyone but two persons were in
company of the deceased, viz., appellant and Bhamta when they left
the house of Bhikjya. Now, Bhamta was the co-accused. This very
circumstance has not been found to be of some importance against
Bhamta. To some extent the circumstance ceases to be of an
incriminating character because not only the appellant should
account for the disappearance of the deceased but simultaneously
an evidence of Bhikjya, original accused No.2, Bhamta would also
be required to explain the same circumstance. Not only was
Bhamta acquitted in respect of the offence, the State even did not
choose to question his acquittal though it did prefer appeal against
the acquittal of the present appellant. In this background the fact
that deceased was seen last alive in the company of the accused
would cease to be a circumstance of an incriminating character."
Reliance is also placed on State of Orissa v. Kansa Behera 1987 SCC (Cri) 601 (para 14)
10. It was submitted that for last seen evidence to be convincing, the prosecution had to
prove the identity of those last seen. Crucially the two main witnesses PW-9 and PW-12 gave
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 7
contradictory versions when they deposed with regard to the conveying of information
regarding identity of persons who allegedly kidnapped Mahesh. In this regard, submitted
counsel, PW-9 Umesh categorically stated that
"Surinder did not disclose the name of Shyamlal and his associates on telephone on
22.3.2000. He had only told me that 5/6 persons had taken away Mahesh in a Sumo
TATA."
11. However, PW-12 Surinder's deposition showed shifting stands. He first claimed
knowledge about identity (and names) only Shyamlal and Himmat; later, he claimed to know
Bittoo as well; yet later, he named all four as those who had come in the Sumo. Such shifting
stands of PW-12, contradicted by PW-9, make this witness unreliable with regard to fixing of
identity. It is also urged that the said two witnesses also contradict with regard to the number of
persons who had allegedly taken away Mahesh. While PW-12 claimed that 8-10 persons had
come in the Sumo, PW-9 stated that he was told by Surinder that 6/7 persons had taken away
Mahesh in Sumo. Such inconsistency in testimonies renders the "last seen" evidence unreliable.
The learned counsel submitted that therefore, the circumstance of last seen, has to be excluded
from consideration while assessing if the Appellants were guilty. Here it is urged that this
alleged circumstance (of last seen) was not been correctly put to the appellant in his statement
recorded under Section 313 Cr.P.C. The only question which regard to last seen put to the
Appellants was as under:
"Q. 3. It is in evidence against you accd. persons that in pursuance
to love affair you all accused persons conspired together to kill
Mahesh and in pursuance to your conspiracy you called Mahesh
and Parvesh in Delhi at the shop of Surender in the year 2000 prior
to Holy near Milind cinema. What have you to say?
Ans. It is incorrect."
12. It is submitted that the fact that the period of last seen has been put as "prior to Holi"
means that the circumstance appearing in the evidence and as deposed to by PW-12 was not put
to the accused in their statements under section 313 Cr.P.C. A circumstance not put to the
accused has to be excluded from consideration while assessing the guilt of the accused.
Reliance in this regard is placed on Sharad Birdhichand Sarda v. State of Maharashtra AIR
1984 SC 1623, Ranvir Yadav v. State of Bihar 2009 Crl. LJ 2962 ; Kehar Singh v. State (Delhi
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 8
Admn.) 1988 SCC (Cri) 711, Kanhai Mishra v. State of Bihar, 2001 SCC (Cri) 537 and Lallu
Manji v. State of Jharkhand 2003 (1) JCC 137 (SC).
13. Counsel next urged that the third charge framed against the Appellants with respect to
Section 302/34 IPC was defective. The Appellants were charged with the commission of murder
of Mahesh on 23.3.2000. This date does not fit in the prosecution case at all. As per the Post
Mortem evidence also, the death had taken place on 21.3.2000 or 22.3.2000 and not 23.3.2000 as
stated in the charge framed against the Appellants. The findings of the Trial Court with regard to
date of kidnapping and the date of death are also not consistent with the charge framed.
14. The Appellants' counsel next urged that the conduct of the two witnesses PW-9 and PW-
12, (PW-9 being the deceased's brother and PW-12 being a friend and co-employee) in not
reporting to the police about the kidnapping of the deceased was unnatural. PW-9 stated that
"I did not inform the police on 22.3.2000 that I had received the telephonic message from
Surrinder about the abduction of Mahesh by Shyamlal and his associates. I did not make
any efforts to trace out my brother nor I lodged any report in this regard from 22.3.2000
to 27.3.2000."
Such conduct is unnatural and shows that PW-12 had not seen the deceased last with the accused
as alleged nor had informed PW-9 about it and the circumstance was introduced later on.
15. It was next urged that there was an unexplained delay in recording the statement of PW-
12 regarding last seen, which according to the prosecution was recorded on 27.3.2000. Reliance
in this regard was placed on Paramjit Singh v. State of Punjab 1997 SCC( Crl) 156.
16. Learned counsel submits, that with prejudice to other arguments, , when conviction is
based on a solitary witness testimony, his (or her deposition) ought to be wholly reliable, clear
and cogent. In the present case, PW-12 is not a witness of truth nor is reliable. There are material
contradictions, improvements and variations in the testimony of PW12, which makes the
testimony of this witness doubtful. At each stage, the witness faltered in one manner or the other.
He either contradicted himself or contradicted PW 9 or the police witnesses, or improved his
statement or gave a substantially different version than that given by him in his statement
recorded under Section 161 Cr.PC. The counsel pointed to the following improvements and
discrepancies:
(1) Parvesh's mother Rajindri had come earlier and not in Tata Sumo.
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 9
(2) The number of people whom he saw in the Tata Sumo. In the police statement, the
witness had said 7-8 people were in the vehicle, of whom about 5 or so went to the
car. This, he did not depose in the Court - merely mentioned about the accused.
(3) The witness mentioned about Mahesh's scuffle with the accused, and he asked them
to refrain from it, upon which the accused threatened him to be quiet or else they
would kill him. This was however, not stated in the police statement.
(4) That Umesh (Mahesh's brother) had called him after 5-6 days (of the incident) after
which they went to Police Station Najafgarh. This was not mentioned in the statement
under Section 161 Cr.PC.
(5) The witness had mentioned about a quarrel between Mahesh and Shyamlal's family,
in the police statement, which he did not support in his deposition in Court.
(6) The witness had mentioned in the previous statement that the accused used to visit
him, to enquire about Parvesh and Mahesh. In his deposition, PW-12 mentioned that
they had visited him only once.
(7) PW-12 had deposed that Parvesh's mother had talked with Mahesh, and abused him -
which he had not stated in the police statement.
(8) In the deposition-in Court-PW-12 said that Parvesh's mother had gone to his shop
two days before Holi - which was an improvement on the Section 161 statement.
(9) For the police statement, the witness mentioned that Mahesh and Parvesh had eloped
in December 1999. But he deposed in Court that they eloped in March 2000.
(10) PW-12 contradicted himself about Mahesh's face injury caused by Shyam Lal.
(11) In the statement to police, he claims to have noted the Tata Sumo registration
number; but admitted, in his Court deposition, to being illiterate.
(12) PW-12's statement about being called 5-6 days after the incident by Umed is not
corroborated by him (i.e. PW-9 Umesh).
(13) In the previous statement, he claims to have received a telephone call from Mahesh,
in his shop. He deposed, however, in Court that he did not have a telephone in his
shop or at home in March 2000.
(14) The witness had three different versions as to who were in the Tata Sumo. At one
stage, he mentioned that except Shyam Lal and Himmat, he did not know the names
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 10
of other accused. However, he said that all accused used to enquire about Mahesh
from him.
(15) The witness clearly stated that the incident occurred 2 days after Holi (which was on
19.3.2000). The charge, and prosecution story was, however, that the incident
happened on 22.03.2000.
17. Likewise, submitted counsel, PW-9 wavers in his testimony substantially. He made vital
improvements, variations and omissions with regard to various aspects deposed by him.
Regarding identity of persons who allegedly took away Mahesh, he gave different versions, at
places names some and at another place stating that Surender did not give the name of any
person. There is variation with PW-12's testimony, in regard to the number of persons who
allegedly took away Mahesh, as told to him. He was confronted with the threat theory that he
introduced for the first time in Court. He brought in knowledge of Mahesh's death through Malti
also for the first time in Court. That date of knowledge of death through Malti, was 26.3.2000; it
does not confirm to the prosecution case at all as the body was allegedly identified only on
27.3.2000. The other contradictions, improvements etc. were sought to be pointed out.
18. It is argued that once the main plank of the prosecution case, i.e. last seen evidence gives
way, the entire prosecution case crumbles and it is difficult to sustain conviction on other pieces
of evidence. Reliance in this regard is placed on Jaharlal Das v. State of Orissa 1991 SCC (Crl)
527 (para 19). The chain of circumstantial evidence gets irreparably broken and the link evidence
becomes conspicuously missing.
19. It is alleged that Appellant Himmat on his disclosure made on 28.3.2000 (at page 183)
got recovered a danda by recovery memo dated 30.3.2000 while Appellant Shyamlal through
disclosure made on 28.3.2000 got recovered a thapi by recovery memo dated 30.3.2000. The
Trial Court itself had not taken the said recoveries/circumstances as incriminating in any manner.
The weapons were sent to the forensic laboratory, but were not found to contain any blood. They
were not shown to the post mortem doctor to seek his opinion as to whether the injuries on the
person of the deceased were caused by these weapons. Counsel argued that the weapons also do
not have any nexus with the cause of death and are thus inadmissible in evidence. Reliance in
this regard is placed on Keshav v. State of Maharashtra 2008 (1) Crimes 88 (SC). The said
weapons thus do not get connected with the offence in question in any manner. The recovery
witnesses, none of whom were independent witnesses, admit that they articles were recovered
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 11
recoveries from open places and the weapons were not concealed. This has been so deposed by
PW-18. Learned counsel points out that the weapons were not recovered from the exclusive
possession of the Appellants and that a two day gap between the disclosure and recovery also
adds to the suspicion.
20. Likewise, the counsel urged that the alleged seizure of vehicles - Sumo, van etc.(though
not recovered at the instance of Appellants) do not further the case of the prosecution in any
manner for the reason that the prosecution did not lift any blood stains or other material from the
said vehicles to show their use in the murder in question. This aspect has also been dealt by the
Trial Court in Para 24 of the impugned judgment.
21. Commenting on motive, it was argued that motive alleged by the prosecution was the
elopement of Parvesh, (daughter of Shyamlal) with Mahesh, the accused persons bore a grudge
against the deceased. It is submitted that mere motive by itself cannot be a proof of murder or
conspiracy. Reliance in this regard is placed on Girja Shankar Mishra v. State of UP AIR 1993
SC 2618. Counsel emphasized that motive may impel the mind to bridge gaps in the prosecution
version, which otherwise cannot be bridged for want of legal evidence. It is submitted that the
Court have to guard against such attempt by prosecution, as presence of motive may give a
suspicion, but suspicion howsoever strong cannot take the place of legal proof. Without
prejudice counsel argued that on this part, i.e the motive, if taken to be proved, for the sake of
argument, it can be considered as only incriminating the Appellant Shyamlal the father of
Parvesh and against not all others. Motive being a double edged weapon, could be reason for
false implication. Counsel lastly submitted that the chain of circumstances is thus not established
in the present case. It is submitted that tested on the touchstone of principles for basing
conviction on circumstantial evidence, the present case ought to fail.
22. Learned counsel for the appellant Pritam supplemented the arguments. He adopted the
arguments made on behalf of the other appellants and stated that originally six accused were sent
to trial, out of whom two, i.e. Sunil and Jagmohan were acquitted. The four appellants before the
Court, however, were convicted. It is emphasized that the Trial Court's conviction rests solely on
the testimony of PW-12, Surender, which is uncorroborated and for several reasons, not worthy
of credence. Learned counsel urges that even though PW-12 deposed that the appellants had
taken-away the deceased Mahesh in a Tata Sumo, PW-5, the driver of that vehicle did not
support his version. On an application of the ratio in Smt. Rukma & Ors. v. Jala & Ors., AIR
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 12
1997 SC 3907, it was urged that the appellants are entitled to benefit of doubt due to the lack of
corroboration of PW-2's allegations. Learned counsel further highlighted that PW-12 kept silent
for five days even though he witnessed the abduction of the deceased on 22.03.2000; his
statement was recorded on 27.03.2000 after recovery of the deceased's body. Learned counsel
urged that the absence of a Test Identification Parade (TIP) vis-à-vis the appellant Pritam is
critical because of the uncertainty about the names and identities of the abductors disclosed by
PW-12 in the course of his deposition. Learned counsel relies upon the decision reported as
Kanan v. State of Kerala AIR 1979 SC 1127 to say that when a witness identifies an accused,
who is not known to him, in the Court for the first time, his evidence is absolutely valueless. It
was urged that the Trial Court's reliance on PW-12's testimony to convict the appellant Pritam
was, therefore, erroneous. It is also submitted that there was no motive vis-à-vis Pritam or at least
none was proved by the prosecution. Having regard to these facts, he was entitled to acquittal
and the findings, resulting in his conviction and sentence recorded by the Trial Court, therefore,
have to be set-aside.
23. Sh. Lovkesh Sawhney, learned APP urged that the impugned judgment ought to be
confirmed by the Court. Although the prosecution case was premised upon circumstantial
evidence, learned counsel urged that each circumstance in the entire chain of circumstances was
conclusively proved to unerroneously implicate the appellants and none else as the propounder
of the crime. Urging that there was a strong motive, which stood established vis-à-vis the
appellants for the commission of crime, learned counsel relied upon PW-16/A, which was a D.D.
entry No. 11, recorded by the police on 24.12.1999, stating that Parvesh, the daughter of Shyam
Lal was missing. The abduction of Mahesh took place on 22.03.2000. PW-14 proved the D.D.
entry No. 5, recorded on 26.03.2000 (Ex. PW-14A), reported by Shyam Lal, which stated that on
22.03.2000, Parvesh returned home. The report went on to state that she had returned voluntarily
after she had left earlier with Mahesh and that she was unharmed. If the fact of alleged abduction
is seen in the light of the subsequent conduct, whereby PW-12's deposition mentioned that
Parvesh's mother had tried to meet Mahesh few days before the incident and the subsequent
abduction incident, the proof of motive becomes a certainty and conclusive. Contesting the
appellants' arguments that there was uncertainty in the prosecution evidence regarding the
alleged date when the death occurred, or about the date of the incident and also other relevant
dates and periods, learned counsel relied upon PW-12's testimony in this regard. It is submitted
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 13
that the admitted case of the parties was that 19.03.2000 was a Holi that year; it was argued that
the statement by PW-12 that he took Parvesh's mother to his shop two days "after Holi" would
really mean the 22.03.2000. Learned counsel submitted that the appellant Himmat is Shyam
Lal's nephew whereas the appellant Pritam was a friend and Devender is Parvesh's paternal
aunt's (Bua's) son or the son of Shyam Lal's sister. All these were closely linked with each other
and found the deceased Mahesh's action in eloping with Parvesh unacceptable.
24. Learned APP urged next that even though there are seeming discrepancies in the
deposition of PW-12 with regard to the identity of the appellants; a careful reading of the
findings would show that it was PW-9, who had some difficulty in that regard, and had to be
confronted with his previous statement recorded under Section 161. However, PW-12
categorically deposed that out of six people who came to his shop after getting-down from the
Tata Sumo, Devender, Shyam Lal, Pritam and Himmat, who went there and the other three were
not known to him. He also clarified later during the course of the cross-examination that before
the date of the incident, the appellants Shyam Lal, Himmat, Bittu (@ Devender) used to visit him
and enquire about Mahesh and Parvesh. Therefore, it was open to the appellants to confuse the
two facts, i.e. knowledge of PW-12 about the identity of the abductors and the accused with what
he conveyed to PW-9, and the latter's knowledge in that regard. Learned APP emphasized that
so far as the appellant's/assailant's identity was concerned, PW-12's depositions remains
unshaken till the end. This, coupled with the existence of proof of motive clearly established that
the deceased was last seen in the company of the appellants. It was argued that having regard to
these, the Trial Court's approach could not be faulted.
25. It is submitted in this regard that having regard to the deposition of prosecution witnesses
identifying the appellants, the Trial Court's findings could not be overturned on account of the
alleged discrepancies. Commenting next on the appellants' submission that PW-12 did not report
the incident to the police, learned APP argued that his testimony showed that both he and
Mahesh's brother, PW-9 were of the opinion that his love affair with Parvesh would not be well
received. They had counseled him not to indulge in it. PW-12 was also aware of the disapproval
by Shyam Lal and other members of Parvesh's family. Therefore, when Mahesh was forcibly
taken-away by the appellants, at that stage, he thought that at worst, the deceased would be
thrashed and asked to keep-away from Parvesh. This was in view of the fact that on 22.03.2000
itself, according to Shyam Lal reporting (Ex. PW-14/A) Parvesh had returned and disclosed
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 14
about her elopement with Mahesh. Having regard to these backgrounds, the conduct of PW-9
and PW-12 in not reporting the matter to the police could not be considered unnatural. It is
further argued that PW-12 also was slightly intimidated because at that time when he sought to
intervene, and asked the appellants not to create a scene, he was threatened. It was argued that
having regard to the fact that the accused were members of a family and apparently had some
influence, it was reasonable to infer that they had prevailed upon some of the prosecution
witnesses to resile from the statement recorded by them immediately after the body was
recovered and identified. Learned counsel submitted that the depositions of PW-15, 18 and 19
disclosed that when the body was found on 25.03.2000, the same was photographed by PW-20
and sent to the mortuary; simultaneously, steps for its identification were taken. It was submitted
that the police discovered that the deceased Mahesh wore a shirt which contained the label "R.K.
Tailors". Upon further investigation, PW-4, Rakesh Kumar, was found to be the tailor. In his
deposition, he confirmed having stitched the shirt but could not be identify the dead body or his
customer.
26. It is submitted that the deposition of PW-18 established that wireless information was
flashed all over the neighborhood and the vicinity to confirm the identity of the deceased. It is
submitted that the deposition of PW-1, Deepak Sharma confirmed that he was the driver of
Maruti Van used by the appellants. It is stated that though this witness turned hostile,
significantly, in the examination-in-chief itself, he made a positive statement that on 22.03.2000,
nobody had hired his vehicle. He admitted knowing Lalit, Sunil and Devender. He made a
second positive statement that they had not hired the Maruti Van. The witness was confronted
with the statement which he denied. He further admitted that his signatures were secured. If this
statement were to be seen along with the deposition of PW-18, and particularly, the personal
search memos of the Appellants, (PW-18/H, PW-18/I and PW-18/J), it was clear that the said
accused were arrested at the instance of Deepak. Similarly, Deepak was witness to the discovery
statement made by the appellant Shyam Lal (Ex. PW-18/A). Learned APP emphasized that PW-
18 was not confronted on this aspect. Having regard to these circumstance, the Court ought to
take into consideration the statement recorded by PW-1 under Section 161 Cr.PC, regardless of
his having resiled from it during the course of the trial. In support of this argument, learned APP
relied upon the judgment Krishna Mochi v. State of Bihar. It is submitted that the appellants'
arguments about the uncertainty of the date and the alleged time-lag between the discovery of the
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 15
body and the time when the deceased went missing, has to be seen in the light of the entirety of
circumstances. Learned APP emphasized that one circumstance alone cannot be highlighted and
the Court should not take a compartmentalized view. Having established the motive that Parvesh
was missing from December 1999 and was in the company of the deceased and that she returned
later, the testimony of PW-12, as corroborated by PW-9 clearly established that the deceased was
seen last in the company of the appellants. The postmortem report (Ex. PW-20/A) indicated that
the doctor commenced the postmortem at 01.00 pm on 28.03.2000. It fixed the date of death as
6-7 days before the commencement of the postmortem.
27. It was urged that the argument that the evidence led before the Court varied with the
charge framed, has no basis and is misconceived. Learned counsel relied upon the Illustration-d
to Section 215 of Cr.PC and stated that no error in stating the particulars of the offence which
has been stated in the charge and no omission to state the offence or its particulars would be
recorded as material issues to vitiate the findings in a criminal trial. It was submitted that so long
as the accused is aware of the broad nature of the charge, the identity of the victim and the
offence he is charged with, the error or errors, if any, in stating certain facts, such as the dates
would not matter. It was urged that the conspectus of circumstances proved by the prosecution,
namely, the elopement of Mahesh and Parvesh in December 1999 leading to motive on part of
the appellant; the abduction of Mahesh, as witnessed and spoken to by PW-12; the discovery of
Mahesh's body on 25.03.2000 and its subsequent identification by PW-9 and PW-12; the
testimony of the deceased having been last seen in the company of the appellants, principally
deposed by PW-12 and corroborated in some material particulars by PW-9; the statement
recorded by PW-1 and the other drivers who gave details about the assault on Mahesh (PW-5
Vijay and PW-6 Sukhbir), which also corroborated with the version of PW-12 and which the
Court sought to take into consideration since PW-1's testimony received independent support
from PW-18, all unerringly eliminated the innocence of the appellants.
28. Learned APP urged that all these circumstances coupled with the postmortem report (Ex.
PW-20/A) and testimony of PW-20 fixed the date of death to be 22.03.2000. Having regard to
these facts, the appellants were under a duty to explain all the incriminating circumstances by
virtue of Section 106 of the Evidence Act, which came into play. Learned counsel relied upon
the judgment of the Supreme Court in State of Rajasthan v. Kashi Ram 2006 (12) SCC 254.
Commenting lastly on the appellants' submission that material incriminating circumstances
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 16
about the conspiracy amongst each one of them as well as the date of the incident had not been
put under Section 313 Cr.PC, which constituted a fatal infirmity, it was submitted that the role
and material facts played by the appellants were put to them; the appellant - Shyam Lal even
corroborated the prosecution version about Parvesh leaving with Mahesh on 22.12.1999; lodging
of a report in that regard, and her return on 22.03.2000, which was reported to the police on
26.03.2000. In this context, learned counsel urged that on a fair application of the role enunciated
in Santosh Kumar v. State 2010 (9) SCC 747; Paramjeet Singh v. State of Uttarakhand 2010 (10)
SCC 439 and Janak Yadav v. State 1999 (9) SCC 125, it was submitted that the so-called
discrepancies were not material and were in any event not so prejudicial as to vitiate the entire
trial and the conviction recorded by the Trial Court. Dealing with the argument of Pritam,
regarding omission to conduct a TIP, learned APP submitted that there is no invariable or iron-
clad rule in that regard and that if the identity of an accused is known to a witness, the law does
not mandate that the prosecution must conduct a TIP. He relied on Malkhan Singh v. State of
Madhya Pradesh 2003 (5) SCC 746.
29. The Appellant's conviction was based on the Trial Court's conclusion that the deceased
was "last seen" in the company of the accused Appellants. The Trial court also reasoned that the
prosecution had proved the Appellant's motive for committing the crime because Parvesh,
(Appellant Shyam Lal's daughter) had eloped with the deceased. The Trial Court also relied on
the testimony of PW-12, to conclude that he witnessed the abduction of deceased Mahesh.
30. The Appellants' submissions hinge principally on the discrepancies and contradictions,
pointed out by them - both internal, and inter se as far as eye witness testimonies are concerned.
The appellants argue that there is also vagueness and uncertainty about the date of death, and
indeed the incident, and that the time lag between when the deceased went missing, and when his
body was discovered is too great to reliably conclude that all circumstantial evidence pointed to
the accuseds' guilt, ruling out their innocence altogether. It is also urged that material
incriminating circumstances was not put to the accused/Appellants by the Trial Court.
31. The starting part of the prosecution story, in this case was the motive aspect. For this, the
prosecution relied on the testimonies of PW-16 and the report given by Shyam Lal that his
daughter Parvesh had disappeared on 22-12-1999. That DD entry extract was proved as Ex. PW-
16/A. The incident, and what actually transpired on the day of abduction was spoken about by
PW-12, the deceased's friend. He claimed to be aware of the elopement of Mahesh, and Parvesh,
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 17
and said that the latter's mother had visited him, at his shop. He spoke about how on the day of
the incident, the abductors went to his shop in a Tata Sumo and took away Mahesh. The
Appellants impeach his credibility by stating that he was inconsistent about the identity of the
abductors; in the statement recorded under Section 161, he stated something, and in his
examination in chief, and yet later, in cross examination, he deposed differently.
32. The witness, PW12 deposed that Mahesh was his friend and had an affair with
Shyamlal's daughter of which he (Shyam Lal) did not like. The materials on record (including
Shyam Lal's statement under Section 313 Cr. PC) established that Parvesh went missing in
December, 1999. Parvesh's mother, Rajendri made enquiries from PW-12 about her (Parveen's)
whereabouts. PW-12 testified that aproximatelyy two days after the Holi, (in 2000) Mahesh
along with Parvesh went to his shop where the latter's mother was already present. Later, the
Appellants Devender, Shyam Lal, Pritam and Himmat along with others reached there, in a Tata
Sumo No. DL-4C-F 9386. PW-12 did not know Pritam and Devinder by name. He however,
knew Shyam Lal and Himmat by their name and according to him, a scuffle took place in his
shop, between deceased and the accused. He (PW-12) witness asked them not to behave in that
manner. PW-12 deposed that Himmat asked him to keep quiet if he wanted to save himself. The
witness testified that he wanted to go with Mahesh in the Tata Sumo but he was not allowed by
the accused. PW-12 deposed that all these four persons took Mahesh and Parvesh in the Tata
Sumo. Shyam Lal and one or two persons followed the Tata Sumo on a two wheeler. He deposed
about informing Mahesh's brother, PW-9, on telephone, about the incident, on the same day.
After 5/6 days he identified the dead body of Mahesh at Subzi Mandi mortuary. Significantly (an
aspect noted by the Trial Court) in cross-examination PW-12 was specifically asked that mother
of Parvesh had given him a telephone number to him with a request to inform her in case Mahesh
and Parvesh went to his shop, which he noted on a page in his diary. This was been exhibited as
Ex. PW12/DB. The telephone number noted down by him was 5412484. He also noted the
number of the Tata Sumo in his diary and the extract of the diary was exhibited as Ex.
PW12/DA. PW-12 gave this information on telephone to PW9 brother of the deceased.
33. The first challenge to PW-12's testimony- rather the foundational one, is his varied
deposition in regard to awareness about the identity of the different accused. On this aspect, the
Trial court reasoned that
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 18
"A witness some time may well know a person only by face and may not be knowing his
name but it does not mean that his identification is unworthy of credit. To my mind even if
he did not know the name of accused Pritam and Devender his identification is reliable
because he had been meeting the accused prior to the incident."
PW-12, in his evidence, stated that:
"Out of the person who came to my shop after getting down from TATA Sumo (the
witness pointed out toward accd. Davinder, Shyam Lal, Pritam and Himmat) were the
persons who came to my shop I don‟t know these persons by their name except Shyam Lal
and Himmat present in the court. These persons had altercation and scuffling with
Mahesh (Hatha Pai Karney Lagey). I asked them not behave this manner in my shop.
Himmat told me that either I should keep mum or I shall be killed (Saley ya to chup ho
jha nahi to tujhe bhi jaaan say maar Deyange). All the 5/6 persons made Mahesh sit I
TATA Sumo Car. All these persons took away Mahesh and Parvesh in TATA Sumo Car.
Shyam Lal and other1/2 persons followed the TATA Sumo car on two wheeler scooter. I
gave a ring to brother of Mahesh on the same day. After 5/6 days I was called by Umesh
brother of Mahesh in PP Mdi Pur. Thereafter we both went to P.S. Najafgarh. I came to
mortuary Subzi Mandi and identified the dead body of Mahesh there. The identification
of dead body is Ex. PW-12/A which bears my signature at Point A. "
Equally, in an earlier part of the statement, he did not mention all the names. This however, does
not mean that the witness was not aware of the identities of those who went to his shop, on the
date of the incident. The above portion of his deposition shows that he knew all the accused,
though at that time, he was not aware of the names of some of them.
34. PW-12's deposition, to an extent, receives corroboration from the statement of PW-9,
who, at the suggestion of the Appellants, during cross-examination, testified as follows:
"It is correct that the telephonic message recd. by me from Surender on 22.3.2000 was to
the effect that Mahesh and Shyamlals daughter Parvesh came here today, Shyam Lal,
Devinder @ Bittoo Himmat and Pritam came to the shop of electrical goods at Milan
Cinema and those people took away Mahesh and Parvesh in Tata Sumo No. DL4CF
9386..."
This witness (PW-9) corroborated, at more places than one, that PW-12 had informed him about
the abduction incident, and who were involved in it, on 22-3-2000. This witness had mentioned
about these aspects and what PW-12 had told him, on this, in his statement recorded under
Section 161, Cr. PC.
PW9 Umesh Kumar deposed that his brother, Mahesh had a love affair with Shyam Lal's
daughter and that she left her house with his brother. Therefore, Shyam Lal and two other
accused come to his house and informed about it. After some time Surender informed him on
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 19
telephone that Shyam Lal and six others had taken Mahesh in a Tata Sumo to some unknown
place; he had also disclosed the number of the Tata Sumo. PW-9 identified accused Shyam Lal,
Devender and Himmat to be the persons who had come to him. Subsequently, he identified the
dead body at Subzi Mandi mortuary by Ex. PW9/A. This witness was specifically asked whether
he had recorded the Tata Sumo number given by Surender; he produced a diary and a torn page
from it and exhibited as Ex. PW9/DX. In this, the Tata Sumo number was recorded as DL 4CF
9386. In cross-examination PW-9 testified to not receiving any telephonic message from
Surender prior to 22.3.2000 nor meeting him. He corroborated the suggestion (in cross
examination, extracted above) that the telephonic message was that Mahesh and Shyam Lal's
daughter Parvesh went to him, Shyam Lal, Devinder, Bittu, Himmat and Pritam came to his
electric shop at Milan Cinema and those people took away Mahesh and Parvesh in Tata Sumo
No. DL4CF 9386. He, however denied that he responded to the telephonic call of Surender by
saying "jo jesha karega, vaisa bhareha".
35. A reading of the testimonies of the two witnesses, would show that:
(1) Both were aware of the disappearance of Parvesh, Shyamlal's daughter, in December,
1999, and that she had a love affair with deceased Mahesh;
(2) Shyam lal with some accused had enquired regarding whereabouts of Parvesh and
Mahesh from Umesh, PW-9, prior to the incident;
(3) PW-12 stated that Parvesh's mother had visited his shop, to talk to her (i.e Parvesh);
(4) PW-12 also stated that later, the Appellants visited his shop, and took away Mahesh and
Parvesh. Both of them had reached there. Before that, Parvesh and her mother had talked
to each other.
(5) The witness (PW-12) identified the Appellants, though in his deposition he was not able
to mention their names in the beginning.
(6) PW-12 deposed having informed PW-9, - a fact corroborated by the latter, in his
deposition.
(7) PW-9 and PW-12 identified Mahesh's dead body.
Despite the Appellants' best efforts, PW-12's testimony about the unfolding of the
incident, whereby Mahesh was taken away by them, in the Tata Sumo, and the surrounding
circumstances, remained unshaken. In this context, this court is of the opinion that the
discrepancies highlighted by the Appellants' counsel is not of such nature as to be fatal to the
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 20
prosecution story. Whether Umesh, PW-9 had a telephone, or not, and discrepancies in the
details as to what was informed to him, are natural as a result of lapses in memory and
recollection of witnesses. If witnesses are exact in their recollection of dates and events, and
corroborate each other in all these aspects, the possibility of tutoring is strong. However,
inessential inconsistencies, are not material, at any rate, to undermine the basic version.
Having regard to the overall conspectus of circumstances, a reading of the testimony of the
two witnesses shows that they were aware about the elopement of Parvesh and Mahesh,
which the accused were also aware of (as testified by PW-9). PW-12's deposition shows that
Parvesh's mother had met him earlier, leading to a meeting between mother and daughter on
the date of the incident. Contemporaneously, the Appellants reached there, with some others,
a Tata Sumo vehicle, and forcibly took away Mahesh and Parvesh.
37. As far as the argument that without a TIP, the Appellants could not have been convicted
is concerned, the Supreme Court, in its later judgment in Malkhansingh v. State of
M.P.,(2003) 5 SCC 746, held that:
"7. It is trite to say that the substantive evidence is the evidence of identification in court.
Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is
well settled by a catena of decisions of this Court. The facts, which establish the identity
of the accused persons, are relevant under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the statement made in court. The evidence of
mere identification of the accused person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the accused who are strangers to
them, in the form of earlier identification proceedings. This rule of prudence, however, is
subject to exceptions, when, for example, the court is impressed by a particular witness
on whose testimony it can safely rely, without such or other corroboration. The
identification parades belong to the stage of investigation, and there is no provision in
the Code of Criminal Procedure which obliges the investigating agency to hold, or
confers a right upon the accused to claim a test identification parade. They do not
constitute substantive evidence and these parades are essentially governed by Section
162 of the Code of Criminal Procedure. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in court. The weight to be
attached to such identification should be a matter for the courts of fact. In appropriate
cases it may accept the evidence of identification even without insisting on corroboration.
(See Kanta Prashad v. Delhi Admn.1, Vaikuntam Chandrappa v. State of A.P.2, Budhsen
v. State of U.P.3 and Rameshwar Singh v State of J & K)
.......................... ..........................
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 21
16. It is well settled that the substantive evidence is the evidence of identification in court
and the test identification parade provides corroboration to the identification of the
witness in court, if required. However, what weight must be attached to the evidence of
identification in court, which is not preceded by a test identification parade, is a matter
for the courts of fact to examine. In the instant case the courts below have concurrently
found the evidence of the prosecutrix to be reliable and, therefore, there was no need for
the corroboration of her evidence in court as she was found to be implicitly reliable. We
find no error in the reasoning of the courts below. From the facts of the case it is quite
apparent that the prosecutrix did not even know the appellants and did not make any
effort to falsely implicate them by naming them at any stage. The crime was perpetrated
in broad daylight. The prosecutrix had sufficient opportunity to observe the features of
the appellants who raped her one after the other. Before the rape was committed, she was
threatened and intimidated by the appellants. After the rape was committed, she was
again threatened and intimidated by them. All this must have taken time. This is not a
case where the identifying witness had only a fleeting glimpse of the appellants on a dark
night. She also had a reason to remember their faces as they had committed a heinous
offence and put her to shame. She had, therefore, abundant opportunity to notice their
features. In fact on account of her traumatic and tragic experience, the faces of the
appellants must have got imprinted in her memory, and there was no chance of her
making a mistake about their identity. The occurrence took place on 4-3-1992 and she
deposed in court on 27-8-1992. The prosecutrix appears to be a witness on whom implicit
reliance can be placed and there is no reason why she should falsely identify the
appellants as the perpetrators of the crime if they had not actually committed the offence.
In these circumstances if the courts below have concurrently held that the identification
of the appellants by the prosecutrix in court does not require further corroboration, we
find no reason to interfere with the finding recorded by the courts below after an
appreciation of the evidence on record."
In view of the above ruling, and having regard to an overall reading of PW-12's testimony, the
court is of opinion that the Trial Court did not fall into error, in holding that the witness knew the
identities of the Appellants, and was therefore, a credible and reliable witness.
36. So far as the argument that the prosecution witnesses did nothing to report the incident,
and are, therefore, untrustworthy, is concerned, the Trial Court reasoned as follows:
"19. The testimony of this witness further has been challenged on the ground that
despite the fact PW12 Surender came to know that Mahesh has been taken away by the
accused persons nevertheless he did not inform the police and such a conduct create
suspicion about his testimony. To my mind this contention is not well founded. Different
persons behave in different fashion. Some time a person may not taken things seriously as
the circumstances may warrant. In the present case perhaps when the deceased was
taken by the accused persons, according to witness, he was taken on the pretext that he
was to be married with Parvesh. In such circumstances it is not unnatural on the part of
the witness to believe that either the proposal is serious or at the most Mahesh would be
let off with mild thrashing. Similarly is the conduct of PW9 Umesh. PW12 Surender had
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 22
passed on information of Mahesh have been taken away by the accused persons yet he
even did not take it seriously perhaps he had the impression in mind that Mahesh would
be let off after beating. This is why no report was probably lodged. Even otherwise
merely because PW12 Surender and PW9 Umesh did not act as the circumstances had
warranted is not the ground to disbelieve their testimony. There can be number of factors
like that they are outsider to Delhi and had been earning their livelihood where as
accused persons are settled in Delhi, and fear of retaliation are such which might
effected their conduct. Therefore, merely because PW9 Umesh and PW12 Surender did
not lodge the report with the police about taking away of Mahesh by the accused persons,
is not sufficient to disbelieve the testimony of these witnesses."
In the circumstances of the case, considering that several accused persons had visited PW-12's
premises, and abducted the deceased Mahesh, and also took away Parvesh, the reasoning of the
Trial court does not disclose any error, and is both plausible, as well as sound.
37. The next important argument of the Appellants was that the prosecution version about the
death of Mahesh is unacceptable, and a conviction on the basis of "last seen" evidence could not
have been returned, because the time gap between the incident witnessed by PW-12 and the
discovery of Mahesh's body was about 3 days. It is also argued that the prosecution was not able
to establish the precise day when the abduction took place. To take up the latter argument, PW-
12 mentioned that Parvesh's mother had visited him and that he took her to his shop two days
after Holi. Learned counsel (for the Appellants) urged that since both parties admitted that Holi
was celebrated on 19th March, in that year, two days later would mean 21st March. However, this
reasoning is flawed, because in common parlance, reference to an event after some specific day
would imply that the earlier date is not included for the purpose of calculation. So seen, 19th
March would be excluded; two days "after" Holi would then mean 22nd March, 2000. This date
is even otherwise corroborated -indirectly- by the fact that Parvesh is reported to have returned
home, according to Shyam Lal. It is more firmly corroborated, by the post mortem report, which
fixes the date of death 6-7 days from the date of the report (28-3-2000).
38. As far as the other argument about the long time lag is concerned, it would be useful to
consider the judgments cited on behalf of the Appellant. In Bodhraj v. State of J&K,(2002) 8
SCC 45 it was observed that:
"31. The last-seen theory comes into play where the time-gap between the point of time
when the accused and the deceased were seen last alive and when the deceased is found
dead is so small that possibility of any person other than the accused being the author of
the crime becomes impossible. It would be difficult in some cases to positively establish
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 23
that the deceased was last seen with the accused when there is a long gap and possibility
of other persons coming in between exists. In the absence of any other positive evidence
to conclude that the accused and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases. In this case there is positive
evidence that the deceased, A-1 and A-2 were seen together by witnesses i.e. PWs 14, 15
and 18; in addition to the evidence of PWs 1 and 2."
In Mohibur Rahman(supra) it was held that:
"10. The circumstance of last seen together does not by itself and necessarily lead to the
inference that it was the accused who committed the crime. There must be something
more establishing connectivity between the accused and the crime. There may be cases
where, on account of close proximity of place and time between the event of the accused
having been last seen with the deceased and the factum of death, a rational mind may be
persuaded to reach an irresistible conclusion that either the accused should explain how
and in what circumstances the victim suffered the death or should own the liability for
the homicide. In the present case there is no such proximity of time and place. As
already noted the dead body has been recovered about 14 days after the date on which
the deceased was last seen in the company of the accused. The distance between the two
places is about 30-40 km. The event of the two accused persons having departed with the
deceased and thus last seen together (by Lilima Rajbongshi, PW 6) does not bear such
close proximity with the death of the victim by reference to time or place. According to
Dr Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical
evidence does not establish, and there is no other evidence available to hold, that the
deceased had died on 24-1-1991 or soon thereafter. So far as the accused Mohibur
Rahman is concerned this is the singular piece of circumstantial evidence available
against him.... "
39. As would be apparent, the "last seen" evidence class of cases does not posit any
stereotyped rule that the interval between when a victim is seen last in the company of the
accused and the date of his death, or recovery of his body ought to be few days, or few hours.
Undoubtedly, being a circumstantial evidence based case, courts have to exercise caution.
However, if the evidence is forthright and unambiguous, and is also corroborated by the medical
evidence, there is no reason for the court to rule it out, on application of a ritualistic formula that
the time duration is lengthy. In this case, the evidence of PW-12 is clear that the abduction took
place and Mahesh went missing on 22-3-2000; on the same day, Parvesh went home - a fact
reported to the police, and proved during the trial. The medical evidence in the form of testimony
of the postmortem doctor PW-20, and the post-mortem report Ex. PW-20/A also establish that
death occurred 6-7 days previous to the date when post mortem was conducted, i.e on 28th
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 24
March, 2000. Thus, the prosecution established that the deceased Mahesh was seen last in the
company of the Appellants.
40. The appellants had argued that there is no evidence on record that accused had taken the
deceased either to Gurgaon or Roshan Vihar or from Roshan Vihar to the fields. PW-5 Vijay
driver of the Tata Sumo No. DL-4CF 9386 did not support the prosecution. PW1 Deepak @
Deepu & PW3 Lalit also had not supported the prosecution that about hiring of Maruti Van No.
HR 26E 6207 or that they had taken the deceased to the fields. The prosecution evidence was
that after Mahesh was beaten by the accused after he was taken by them since Deepak @ Deepu
PW-1 was only the eye witness to it (the beating). He did not support the prosecution story
during the trial. The trial court held that as far as the first part of the prosecution evidence was
concerned the testimony of PW12 was trustworthy that the Appellants had gone in the Tata
Sumo and took away Mahesh from his shop on 22.03.2000 at about noon time. Although PW-1
denied his involvement in the investigation, he as well as PW-5 deposed in the positive, about
nothing having taken place on 22-3-2000. Apart from this curious aspect, PW-18 had deposed
that the Appellants were arrested at the behest of PW-1, and their personal search memos were
signed by him, as a witness. These were placed on the record, and proved as Ex. PW-PW-18/H,
PW-18/I and PW-18/J. Having regard to these facts, the court is of opinion that the prosecution
witnesses having been won over by the accused, particularly since they were known to them, and
they belonged to the same village, cannot be ruled out.
41. The Trial Court had disbelieved the prosecution story regarding the recovery of alleged
weapons of offence. Although the Appellant argued that this reasoning undermines the
conviction recorded by the Trial Court, this court does not discern any fatal infirmity with the
reasoning in the impugned judgment. As held by the Trial Court, the deposition of PW-12 is
trustworthy, as regards the abduction incident; the post-mortem report confirms the date of date
of death. Therefore, the prosecution, in the opinion of the court established beyond reasonable
doubt, that the deceased was last seen in the company of the Appellants, who took him away
forcibly. The deceased was not seen by anyone else after that time, and his body was found on
25th March, 2000.
42. The next question is whether the Trial court did not put the incriminating circumstance
regarding the date of occurrence of the incident to the accused. In this connection, it was
submitted by counsel for the Appellants that the Trial court did not specify the date of the alleged
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 25
murder. However, the evidence on record, according to the prosecution, pointed to one date, i.e.
21-3-2000, whereas the finding was otherwise, and none of these, were in accord with the
charges framed against the accused-Appellants. Learned counsel relied on Sharda‟s case (supra)
for this purpose.
43. It is no doubt correct, that the Appellants were not specifically questioned about the date
when the incident is alleged to have taken place, when they abducted the deceased Mahesh, and
later he died. The learned APP had relied on Section 215, Cr. PC, to say that omission to frame
charge in regard to dates and other such particulars cannot be construed as so prejudicial as to
vitiate the trial and findings in a criminal case. He also relied on some decisions, to say that the
irregularity in not putting the concerned incriminating circumstance, under Section 313, Cr. PC
does not automatically vitiate the trial, and that the court has to examine whether such omission
resulted in prejudice.
44. The effect of a defect in framing charges, in the context of findings rendered by a
criminal court, has been provided for under Section 215, of the Code of Criminal Procedure. It
reads as follows:
"215. Effect of errors.-- No error in stating either the offence or the particulars required
to be stated in the charge, and no omission to state the offence or those particulars, shall
be regarded at any stage of the case as material, unless the accused was in fact misled by
such error or omission, and it has occasioned a failure of justice.
Illustrations
(a) A is charged under Section 242 of the Indian Penal Code (45 of 1860), with
"having been in possession of counterfeit coin, having known at the time when he
became possessed thereof that such coin was counterfeit", the word "fraudulently"
being omitted in the charge. Unless it appears that A was in fact misled by this
omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set
out in the charge, or is set out incorrectly. A defends himself, calls witnesses and
gives his own account of the transaction. The Court may infer from this that the
omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set
out in the charge. There were many transactions between A and B, and A had no
means of knowing to which of them the charge referred, and offered no defence. The
Court may infer from such facts that the omission to set out the manner of the
cheating was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In
fact, the murdered person's name was Haidar Baksh, and the date of the murder was
the 20th January, 1882. A was never charged with any murder but one, and had
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 26
heard the inquiry before the Magistrate, which referred exclusively to the case of
Haidar Baksh. The Court may infer from these facts that A was not misled, and that
the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and
Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 1882.
When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda
Baksh. The witnesses present in his defence were witnesses in the case of Haidar
Baksh. The Court may infer from this that A was misled, and that the error was
material."
Speaking about the effect of this provision, the Supreme Court underlined that unless prejudice is
established in regard to an omission, vis-à-vis a charge framed, the court would be slow in
interfering with a conviction recorded by the competent criminal court, in the decision reported
as Mohammed Ankoos v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, 2010
(1) SCC 94, the Supreme Court observed :
"The legal position is also fairly well settled that because of a mere defect in language or
in the narration or in form of the charge, the conviction would not be rendered bad if the
accused has not been affected thereby."
45. As regards the Appellants' submission that the relevant questions about the precise date
when the homicidal attack took place, had not been put to them, under Section 313, Cr. PC is
concerned, no doubt the object of the section is to enable an accused to focus on particular
incriminating materials proved by the prosecution, and explain them, to the court, at the
conclusion of prosecution evidence. However, here too, the mandate of the law is not blind and
mechanical adherence to the letter of the law. Interference with a conviction, by the Appellate
court is justified, when the omission is fundamental, and the result, incurable prejudice. So long
as the essential facts constituting the incriminating materials are put to the accused, the
requirement of the law is fulfilled. This was underlined in Asraf Ali v. State of Assam, (2008) 16
SCC 328, in the following terms:
"In Shivaji Sahabrao Bobade v. State of Maharashtra5 as the Bench has widened the
sweep of the provision concerning examination of the accused after closing prosecution
evidence. Learned Judges in that case were considering the fallout of omission to put to
the accused a question on a vital circumstance appearing against him in the prosecution
evidence. The three-Judge Bench made the following observations therein: (SCC p. 806,
para 16)
„16. ... It is trite law, nevertheless fundamental, that the prisoner's attention should be
drawn to every inculpatory material so as to enable him to explain it. This is the basic
fairness of a criminal trial and failures in this area may gravely imperil the validity of the
trial itself, if consequential miscarriage of justice has flowed. However, where such an
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 27
omission has occurred it does not ipso facto vitiate the proceedings and prejudice
occasioned by such defect must be established by the accused. In the event of evidentiary
material not being put to the accused, the court must ordinarily eschew such material
from consideration..."
Similarly, in Jai Dev v. State of Punjab AIR 1963 SC 612, it was observed that:
"The ultimate test in determining whether or not the accused has been fairly examined
under Section 342 would be to enquire whether, having regard to all the questions put to
him, he did get an opportunity to say what he wanted to say in respect of prosecution case
against him. If it appears that the examination of the accused person was defective and
thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."
In Bakhshish Singh Dhaliwal v. State of Punjab AIR 1967 SC 752 a three-Judge Bench of the
Supreme Court held that:
"It was not at all necessary that each separate piece of evidence in support of a
circumstance should be put to the accused and he should be questioned in respect of it under
that section;"
46. In the present case, this court notices that the essential facts, such as abduction of the
deceased, in the presence of PW-12, the motive, i.e. affair with Shyamlal's daughter, the
circumstance of the accused being seen last, with the deceased, and other material circumstances
were in fact put to the Appellants. In these circumstances, the omission to put the precise date,
(even though the relevant question about their complicity in the crime was put to them) does not
vitiate the entire trial, or the conviction.
47. This court notices that the Appellants motive - which stands corroborated by Shyamlal's
statement during the trial - was their anger at his daughter's love affair with the deceased, which
did not meet his and his family's approval. The abduction of the deceased, and return of the
daughter, appear to be part of a seamless transaction. This anger, at the deceased, translated into
something more serious, leading to a murderous attack, resulting in his death. The injuries
indicate merciless beatings rained on the deceased. By all accounts, the Appellants' motive was
to teach the deceased a lesson, and do him to death- what has been termed as "honour killing".
The practice negatives an individual's freedom of exercise choice of his or her spouse, and
leading a life, with dignity, and enjoying the rights guaranteed by the Constitution. The practice
places exaggerated value endogamous choice, dictated by kith and kin, on the one hand, and
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 28
denies "outsiders" the freedom of choosing their partners, based on consent. Such social
practices, which sanction what are plainly crimes, require the severest condemnation.
48. In view of the above findings, this court is of opinion that the findings recorded in the
impugned judgment do not call for interference. The Appellants shall surrender before the Trial
Court on 1st September, 2011, to serve the remainder of their sentence. The Registry shall
transmit the Trial Court records and this judgment, forthwith, to ensure compliance. The Appeals
are, accordingly dismissed.
(S. RAVINDRA BHAT)
JUDGE
(G. P. MITTAL)
JULY 29, 2011 JUDGE
Crl.A. Nos.844/01, 972/01, 356/02 & 357/02 Page 29
