Delhi High Court

Member Singh vs State on 28 August, 2012

Author: Sanjiv Khanna

$~R-10, 11 & 12.
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRIMINAL APPEAL NO.376/2011

                                            Date of decision: 28th August, 2012

        MEMBER SINGH                            ..... Appellant
                     Through Mr. Ajay Verma, Advocate.
                versus
        STATE                                ..... Respondent

Through Ms. Richa Kapoor, APP for the State.

CRIMINAL APPEAL NO.330/2009

PAPPU @ MAHESH ..... Appellant Through Mr. Ajay Verma, Advocate.

versus STATE ..... Respondent Through Ms. Richa Kapoor, APP for the State.

CRIMINAL APPEAL NO.250 /2009

AMAR PAL @ KANWAR PAL ..... Appellant Through Mr. Ajay Verma, Advocate.

versus STATE ..... Respondent Through Ms. Richa Kapoor, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J. (ORAL):

Member Singh, Amar Pal and Pappu have filed these

appeals challenging their conviction under Sections 302 and 406

read with Section 34 of the Indian Penal Code, 1860 (IPC, for

short) in Session Case No. 162/2007 arising out of FIR No.

189/2004, Police Station, Rohini for murder of Arjun Singh, driver

of tempo bearing registration No. DL 1LD 2857. They have

been sentenced to life imprisonment and fine of Rs.3,000/- each

for the offence under Section 302/34 IPC and rigorous

imprisonment of two years for the offence under Section 406 IPC.

In default of payment of fine, the appellants have to undergo

simple imprisonment of three months each.

2. In the charge sheet brief case of the prosecution was that

FIR No. 189/2004 dated 1st March, 2004 was registered under

Section 365 IPC on a complaint (Exhibit PW-7/A) made by

Pardeep Kumar (PW-7) that his tempo driven by Arjun Singh was

hired by an unknown to transport buffaloes to Aligarh and return

back with potatoes. At the time of departure, PW-7 had noticed

that two more persons were sitting in the tempo apart from the

man who had hired it. The tempo and the driver were to return on

25th February, 2004 but did not return. He tried to search Arjun

Singh but he could not be located. On 1st/2nd March, 2004, PW-

24, SI Naresh Bhatia went to SSP's office, Aligarh with his staff

and photographs of unidentified bodies were shown to the

relatives of Arjun Singh. One photograph of a body was identified

as that of Arjun Singh. The said body was found in an area under

the jurisdiction of Police Station, Ghonda, U.P. At Police Station,

Ghonda, U.P. SI Yatender Kumar, PW-15 and SI Baldev Prasad,

PW-18 showed photographs and clothes of the deceased and

were identified by the relatives. The tempo could not be located.

The perpetrators of the crime remained unknown. The police

team came back to Delhi on 4th March, 2004. Investigation was

handed over to Inspector Jaibir Singh, PW-26. On the basis of

the secret information, Member Singh was arrested near a

cinema theatre on 6th March, 2004. From his pant a loaded

country made pistol with a live cartridge was recovered. He was

apprehended and charged under the Arms Act in FIR No.

206/2004, Police Station, Rohini. During interrogation, he

revealed his involvement in the present murder case. He was

arrested on 6th March, 2004.

3. As far as the homicide death of the deceased Arjun Singh is

concerned, an unidentified body was found on 25th February,

2004 at about 9 - 10 A.M. in a field located at village Arania,

District Aligagh, Police Station, Gonda, U.P. The recovery of the

unidentified body is proved by the statement of PW-8, Sham Lal,

owner of the said field. PW-5 Prem Singh, PW-6 Jitender Singh,

PW-9 Chander Pal Sharma and PW-10 Ashok Kumar are other

villagers who have testified and have mentioned about discovery

of an unidentified dead body. Thereafter, information regarding

the dead body was conveyed by PW-9, Chander Pal Sharma to

local Police Station, Ghonda and panchnama Exhibit PW-9/A was

prepared. On the basis of the same, FIR No. 11/2004 under

Section 302/201 IPC was registered as per the statement of PW-

12, Constable Gaya Saran Singh, Police Station, Ghonda. PW2

Ct. Gaya Saran, PW14 Ct. Satbir, PW15 SI Yatender Kumar and

PW18 SI Baldev Prasad have also deposed on recovery of the

body. At that time, the dead body could not be identified to be

that of Arjun Singh. Recovery, was treated and regarded as that

of an unidentified/unknown person.

4. The prosecution witness PW-24, Pappu Singh is the brother

of the deceased Arjun Singh. In his statement in the court he had

deposed that on 2nd March, 2004 he, along with his nephew

Dheeraj, went to Police Station, Rohini and from there with the

Police Officers of Police Station, Rohini, they went to Police

Station, Ghonda, Aligarh, U.P. where clothes and photographs of

the deceased were shown to him and he identified the said

clothes and photographs. PW4 Dheeraj Singh, a relative of Arjun

Singh had also gone with PW24 and had identified the

photographs and clothes of Arjun Singh. We may note that by

the said date, the dead body of Arjun Singh had already been

cremated. Post mortem was conducted on 26th February, 2004 at

5.00 PM as per the post mortem report Exhibit PW-2/A, which

has been proved by Dr. Pramod Kumar, PW-2, Physician in DDU

Hospital, Aligarh, U.P.

5. The reason why PW-24, Pappu Singh and PW4 Dheeraj

Singh had gone to Police Station, Ghonda along with police

officers of Police Station, Rohini is stated by PW-28, SI Naresh

Bhatia, the first investigating officer. PW-28 in his statement had

stated that he was posted at Police Station, Rohini and after

registration of FIR No. 189/2004 on 1st March, 2004 under

Section 365 IPC, he along with his staff reached the place of

occurrence, i.e., Tempo Stand, Avantika, Delhi along with the

complainant PW-7, Pardeep Kumar and had inspected the place

and prepared the site plan. Thereafter, he along with the staff

went to the District, Aligarh SSP's office for investigation. PW26

Inspector Rajbir Singh, Additional SHO,

Police Station, Rohini was with him. Police officers at SSP's

office/G.D. office had shown them photographs of unidentified

bodies and from the said photographs, one photograph of a dead

body stated to have been recovered by Police Station, Ghonda,

U.P., was identified by relatives of the deceased to be that of

Arjun Singh. Thereafter, they reached Police Station, Ghonda

and met SI Yatender and SI Baldev Prasad, PW-15 and PW-18

respectively. They showed the photographs of the deceased and

his clothes after breaking seals of the pullandas, which were kept

in the malkhana. The photographs and the clothes were

identified by the relatives of the deceased. Photographs and

negatives thereof and the clothes were sealed and were

deposited in the malkhana, Police Station, Ghonda, U.P. by them.

6. The real issue and controversy raised in the present

appeals relate to the involvement of the three appellants in the

said offence and whether they are responsible and the

prosecution has been able to show and establish that they had

committed the offence i.e murder of Arjun Singh and the offence

under Section 406 IPC.

7. There are no eye witnesses in the present case and the

prosecution has relied upon circumstantial evidence of last seen

and the recoveries. TIP proceedings are relied upon in the case

of Member Singh and Pappu. Member Singh did not join TIP and

Pappu was identified by PW7 Pardeep Kumar in the TIP.

8. To establish the case, the prosecution has relied upon the

statement of PW-7 Pardeep Kumar. PW-7 had stated that he was

the owner of tempo DL 1LD 2857 and the deceased was working

with him as a driver. He recognized the appellant Member Singh

and had stated that he had come to the tempo stand at Avantika,

Main Kanjhawala Road, Delhi on 24th February, 2004 and asked

him to give a tempo on hire to take buffalos to Aligarh and on

return they would bring potatoes in the tempo. He had given

Rs.1,000/- as advance fare for the tempo. The tempo and the

driver were to come back by 11 or 11.30 A.M. on the next day.

The tempo and the driver did not come back by the said time. He

waited till the evening of 25th February, 2004. He then made a

written complaint to the police at Police Station, Rohini, Sector-3,

Delhi, Exhibit PW-7/A. Thereafter, the police started investigation

and the appellant Member Singh was brought to the Police

Station and was shown to him on 28th/29th February, 2004. He

identified Member Singh and stated that he had taken the tempo

along with the driver. Thereafter, he joined the

investigation and the appellant Member Singh took them to the

house of the other accused appellant Pappu but he was not

present at that time in his house and his residence in U.P. He

accompanied the police to the house of the third accused, who

was a friend of Pappu but he was also not present at his house at

that time. The accused-appellant Member Singh took the police

party to the place of occurrence where he had committed the

murder of the driver Arjun Singh at night time. He pointed out the

place of incident in their presence. After 2-3 days again, PW-7

went to U.P. to the house of the two accused but they were not

present in their houses even at that time.

9. In his cross-examination, PW-7 has stated that Member

Singh had come at 4.00/4.30 P.M. and that the diesel was filled

up at about 9.30 p.m. after loading of the buffalo in the tempo.

He had not maintained any records of the tempo hire and the fare

collected by him. He had waited for the whole day on 25th

February, 2004 and next day i.e. 26th February, 2004 and had

made a complaint to the police on 27th February, 2004. He did

not go to the house of Arjun Singh to make any enquiry. Member

Singh was apprehended at Peera Garhi as told to him by the

police and he had gone to the Police Station either on 28th

February, 2004 or 29th February, 2004. Member Singh had

accompanied him and the police officers to the house of accused

Pappu at his native village on 1st March, 2004, but Pappu at that

time could not be found. He denied the suggestion that Member

Singh did not hire the tempo. The said cross examination was

held on 21.2.2005 and completed.

10. PW-7 was recalled for further examination on an application

made by the prosecution. He was re-examined on 1st October,

2008. In his statement in chief recorded on the said date he had

pointed out to the appellant accused Member Singh and stated

that he had come to take the tempo on hire to load buffaloes from

Delhi and take the same to Kher Tapple in U.P. The said

statement was objected to by the defence counsel on the ground

that this fact was already stated. He also stated that the tempo

came back to the stand at Avantika after loading of the buffaloes.

Member Singh was accompanied by two other persons, who

were present in the Court and he identified the said two persons

as the appellants Pappu and Amar Pal. Thereafter, the driver

along with the three appellants accused went to the petrol pump

where the fuel was filled and they left for U.P. He came back to

the tempo stand. On 16th April, 2004, he had gone to Tihar Jail

with the IO where he identified Pappu in the judicial TIP Ex.

PW27/A. PW-7, when cross-examined on 1st October, 2008, had

stated that he did not know Pappu prior to the incident. He

denied the suggestion that Pappu was shown to him by the IO

prior to TIP in the jail. He had further stated that the Magistrate,

who had conducted the TIP had not asked or querried whether he

had been tutored or the accused was shown to him prior to that or

not.

11. We may also notice that Member Singh had refused to join

TIP on the ground that he had already been shown to PW-7. He

had stated that he had been kept in police custody for 6-7 days

and was shown to public persons, who may be witnesses of the

said case (refer Exhibit PW-27/A). PW7 has admitted and

accepted that Member Singh was shown to him by the police on

28/29th February, 2004 and he along with Member Singh on 1st

March, 2004, had gone to UP with the police officers. PW7 was

not declared hostile and his statement in examination in chief and

again in cross examination was not challenged and questioned.

12. Amar Pal and Pappu could not be arrested. They had

surrendered in the court on 8.4.2004 and 10.9.2004, respectively.

As far as disclosure and recovery statements are concerned, it is

noticed that the dead body of the deceased was found in the

fields on 25th February, 2004 in village Arania, Police Station,

Ghonda. On 1st March, 2004, the said dead body was identified

by PW-24, Pappu Singh, brother of the deceased Arjun Singh

and PW4 Deeraj Singh. The appellant Member Singh was

arrested in FIR No. 206/2004 under Sections 25, 54 and 59 of the

Arms Act and Section 411 IPC in Police Station, Rohini on 6th

March, 2004. He had made three disclosure statements on or

after 6th March, 2004. Two disclosure statements marked Exhibit

PW26/X and PW26/B are dated 6th March, 2004 and the third

disclosure statement marked Exhibit PW26/D is dated 11th March,

2004. The recovery of the body of the deceased Arjun Singh

cannot be collated and connected with any of the disclosure

statements. As noticed above, the body of the deceased was

found on 25th February, 2004 and was identified by as that to be

of deceased Arjun Singh on 1st March, 2004. This was before

Member Singh was arrested on 6th March, 2004 and the three

disclosure statements. Thus on the date when disclosure

statements of Member Singh were recorded on 6th March, 2004,

the police officers PW26 and PW28 had knowledge and already

knew about recovery of the dead body of Arjun Singh and the

place where it was found. The recovery of the dead body of the

deceased, therefore, cannot be attributed to the disclosure or

treated as recovery made pursuant to the statements made by

Member Singh and recorded by the police.

13. Learned Additional Public Prosecutor for the State has

submitted that pursuant to the disclosure statement Exhibit PW-

26/B made on 6th March, 2004, an iron rod and blood stained shirt

and pant of the accused Member Singh were recovered from

village Samashpur, Police Station, Sadabad, District Mathura,

U.P., vide Exhibit PW-26/E dated 12th March, 2004. The recovery

of the iron rod, which is alleged to be the weapon of offence in the

present case does not inspire confidence as iron rods are easily

available and as per the CFSL report Exhibit PW-26/X no blood

could be detected on the iron rod and the shirt. Human blood

was detected on the pant of the appellant accused Member Singh

but blood group could not be ascertained.

14. Once the recoveries are discounted, the evidence available,

which is relied upon by the prosecution, is that of last seen.

Prosecution has relied upon the statement of PW-7. As per

prosecution version PW-7 had made the first complaint to the

police Exhibit PW-7/A on 1st March, 2004 at 12.10 A.M. In the

said complaint, he had stated as under:-

"To, The SHO, P. S. Rohini, Sec-3, Delhi-85 Sir, It is submitted that in the morning of 24.02.04 at about 6.00 O'Clock, a person had come to me to hire my Tempo Tata 407 saying that he had to carry a buffalo from Sultanpuri to Khair Tappar, Aligarh road and he had to bring fifty - sixty sacks of potatoes to Sultanpuri itself from there in returning. I sent my Tempo Tata

Arjun Singh S/o Samar Bahadur Singh, r/o Village- Jatwara Baisan Taisil, Post Office - Jatwara, Distt. Pratap Garh, U.P. along with that person. When my driver came back to Awantika stand at about 9.00 O' Clock in the night carrying the buffalo I saw that the same person alongwith two other people was sitting in the vehicle. Hardly had I got filled the fuel of a sum of Rs.1140/- that he drove away the Tempo carrying the buffalo which was bound to return till the evening of 25.02.04. But neither my driver nor my tempo has returned till now. I had been searching for them till now at my level but they are untraceable. I apprehend that some unknown people have abducted my aforesaid driver along with my Tempo. I request that they may be traced. I can identify the said three people on confrontation. Legal action may be initiated against the accused persons.

Sd/-

Pradeep Kumar (In Hindi)

Pradeep Kumar S/o Jaspal Singh R/o R-Z-332, Mangolpur Khurd Delhi- 55"

15. As elaborated above, PW-7 in his statement in the court

had stated that Member Singh was shown to him on 28th or 29th

February, 2004 in the police station. The said statement was

made in categorical terms in the examination-in-chief, wherein it

is recorded :-

".... My driver's name is Arjun Singh S/o Samar Singh r/o Pratap Garh, U.P. On the next day my tempo and driver did not come back as my tempo and driver were to come upto 11 or 11.30 A.M. So, I waited upto evening on 25.2.2004 but neither my driver nor my tempo returned. Then I made written complaint in this respect to the police at P.S. Rohini, Sector 3, Delhi. My complaint is Ex. PW7/A signed by me at point A. Thereafter police started the investigation of this case and police brought accused Member Singh to PS and I was called there on 28/29/2/04 and I identified him there that he had taken my tempo along with my driver....."

16. In the cross-examination again PW7 had stated as under:

"Accused Member Singh came to me to take my tempo on hire basis at about 4/4.30 P.M. The fare of the tempo was fixed for going and coming was Rs.3800/-. Diesel was not filled up in the tempo at that time it was filled up at about 9.30 PM after loaded the buffalow. Only one buffalow was loaded in the tempo. I am not maintaining any record of my tempo

sending it to any where on fare basis. I waited to coming back my tempo whole day on 25/2/04 and on the next day on 26/2/04 because the tempo had to come back in the mean time on 26/2/04 then I made a complaint to the police on 27/2/04.

I did not go to the house of Arjun Singh to make enquiry for non coming back my tempo. Member Singh was apprehended from Peerah Gari it was told to me by the police. I went to PS either on 28/2/04 and 29/2/04. I accompanied with the police and accused Member Singh to the house of Pappu at his native village but Pappu was not present at his house at that time and I went to the village of Pappu on 1/3/04......."

17. PW-4, Dheeraj Singh in his examination in chief had stated

that Arjun Singh was his uncle. He had taken the tempo to

somewhere from Avantika, Rohini but did not return next day.

Owner of the vehicle had taken him to Ghonda, U.P. and he

identified the clothes and the photograph of Arjun Singh. In the

cross-examination, he had stated that he had lived in Delhi with

Arjun Singh from December, 2003 to 4th March, 2004. Till he

remained with Arjun Singh, he did not go out. He did not have

any knowledge where Arjun Singh had gone on 24th February,

2004, when he left the house. He did not make any complaint to

the police.

18. PW-24, Pappu Singh had stated that his brother Arjun

Singh was missing since 24th February, 2004. He used to drive a

tempo. He along with Dheeraj had gone to Police Station, Ghonda

wherein they recognized and identified the clothes and photographs

of Arjun Singh. In cross-examination, he had stated that he was not

aware about going and coming of Arjun Singh and where he used to

go. His brother was missing since 24th February, 2004 but he did

not make any complaint. He did not remember whether on 24th

February, 2004, his deceased brother was in Delhi or out of Delhi.

He did not visit the working place of his deceased brother. On 24 th

February, 2005 (sic 2004) after taking dinner, he did not know

where his brother had gone.

19. From the statements of PW-7, PW-4 and PW-24 and the

statements of IOs PW-26 and PW-28, several material

contradictions in the case of the prosecution are apparent. These

and relevant aspects are analyzed below:-

(a) PW-26 and PW-28 had stated that Member Singh was arrested

on 6th March, 2004 and confessed his involvement and

thereafter on the basis of disclosure statements Exhibits PW-

26/X and 26/B, an iron rod vide memo Exhibit PW-26/E was

recovered. However, PW-7, in his examination in chief had

stated that Member Singh was shown to him on 28th or 29th

February, 2004 and thereafter Member Singh went with him

and the police officers to U.P. to the

residence of Pappu and another accused. After two-three

days again, they went to U.P. to the houses of other

accused. PW-7's statement was not questioned or

challenged by the Public Prosecutor. This averment was

again reiterated by PW-7 in his cross-examination. PW-7

was not declared hostile.

(b) On the iron rod no blood was found as per CFSL report

Exhibit PW-26/X. As noted above, the rod in question

(kamani patta side) is easily available in the market. The

said rod was allegedly recovered from the residence/house

of Member Singh in his village. Presence of an iron rod in a

house is not abnormal, even if we accept the recovery.

(c) As per PW-7, Member Singh and the police parties had

gone to U.P. on 1st March, 2004 to the residence of Pappu

and another unknown person whose name he did not reveal

and they came back to Delhi on the next day. PW-26 and

PW-28 have stated that they had gone to U.P. along with

PW-24 and PW-4 on 1st/2nd March, 2004 and after

verification and inquiry came to know that dead body of

Arjun Singh was found in a village in the area of Police

Station, Ghonda, U.P.

(d) PW-7 had in the examination in chief stated that he had

been to the police on several occasions and had made a

complaint Exhibit PW-7/A on 25th February, 2004. As per

the cross-examination, PW-7 had made the complaint to the

police on 27th February, 2004. As per the police Exhibit

PW-7/A was recorded on 1st March, 2004 at 12.10 A.M.

The earlier complaints made by PW-7 have not been

brought on record. No reason or ground for not producing

the said complaints are indicated or stated. PW-7 in the

examination in chief had clearly stated that he had made a

written complaint on 25th February, 2004. The said

statement of PW-7 was not questioned or challenged by the

prosecution. PW-7 was not declared hostile. This creates

a doubt as to what was stated by PW-7 earlier.

(e) The failure of the police to record the FIR or even DD entry

between 25th February, 2004 till 1st March, 2004 creates a

doubt about the first and the initial statement made by PW-

7. The doubt is fortified in view of the statement of PW-7

that Member Singh was shown to him on 28th or 29th

February, 2004 and was with them on 1st March, 2004,

when they went to U.P. A dead body in an agricultural field

under the jurisdiction of Police Station, Ghonda was found

on 25th February, 2004.

(f) PW-7 had admitted that he did not go to the residence of

Arjun Singh and made enquiries at his residence. This is

abnormal and contrary to normal human behaviour.

(g) PW-24, real brother of the deceased had stated that

deceased Arjun Singh was missing since 24th February,

2004. He was not aware about going and coming of his

brother and where he used to go. He did not make any

complaint with the police on 24th February, 2004. He did

not remember whether his brother was in Delhi or outside

Delhi on 24th February, 2004. He did not even bother to

visit the place where his brother used to work. He had seen

his brother taking dinner in his house on 24th February,

2004.

(h) PW-7 was not expected to remain silent for about 6 days

from 25th February, 2004 to 1st March, 2004. His statement

that he had made written complaint before 1st March, 2004

is reasonable and natural. It inspires confidence. The

statement Ex. PW7/A which became the basis of FIR was

recorded after a substantial delay on 1st March, 2004 at

12.10 AM at midnight. On the same day itself, PW7 along

with relatives and the police officers went to U.P. The dead

body of Arjun Singh was already recovered on 25th

February, 2004.

(i) No inquiries were made by the police whether, where and

when the buffalo was dropped. No inquiries or investigation

was done whether the tempo had crossed Delhi border and

had paid toll tax while entering U.P. from Delhi. No inquiry

was made whether the tempo had carriage permit to

transport goods and operate in U.P. Tempo as per the

registration number was registered in Delhi.

(j) It is difficult to accept that PW-7 the owner of the truck

would have permitted and allowed hiring of the said tempo

without knowing the name of the person hiring the tempo or

his address. As per the statement of PW-7 in the Court, the

tempo was taken to some place from where buffalo was

loaded and put on the tempo. No details of the said place

are stated or indicated. Police also did not conduct any

investigation on the said aspect.

(k) The tempo has not been recovered. The route of the tempo

taken was not ascertained and brought on record.

(l) The personal belongings of the deceased Arjun Singh were

not recovered.

(m)The evidence of last seen, therefore, only on the basis of

Exhibit PW-7/A becomes debatable and doubtful.

Regarding law of last seen, the observations of the

Supreme Court in Muhibur Rahman vs. State of Assam

(2002) 6 SCC 715 are relevant:-

"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."

In Bodhraj vs. State of J&K (2002) 8 SCC 45, it was

observed:

"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 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."

32. In Ramreddy Rajesh Khanna Reddy (2006) 10 SCC 172 this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration."

(see also observations of Supreme Court in State of Goa

vs. Sanjay Thakran (2007) 3 SCC 755).

(n) Member Singh had refused to participate in the TIP on the

ground that he had been shown to PW-7. PW-7 had

admitted and accepted that Member Singh was shown to

him in the Police Station on 28th or 29th February, 2004 and

they were together on 1st March, 2004 and thereafter again

they went to U.P. Refusal of Member Singh to participate in

the TIP was justified.

(o) In Exhibit PW-7/A, there is no description of the accused

Pappu and Amar Pal. Physical attributes of the appellant

Member Singh have also not been stated in Exhibit PW-7/A.

(p) With regard to Pappu and Amar Pal the case of the

prosecution is even weaker. Pappu was identified in the

TIP proceedings by PW-7. However, Pappu's case is that

he had been shown to PW-7. On this aspect, we may note

that PW-7 did not identify Pappu in the court in his

examination in chief on 4th January, 2005 or in the cross-

examination on 21st February, 2005. PW-7 was thereafter

recalled on an application filed by the prosecution and on 1st

October, 2008 he identified Pappu and Amar Pal in the

court. These two accused were obviously present in the

court when statement of PW-7 was recorded on 4th

January, 2005 and 21st February, 2005. No recoveries

were made on the basis of alleged disclosure by Pappu.

Amar Pal was not subjected to TIP. No recovery is

attributed to the disclosure statement of Amar Pal.

20. Keeping in view the said facts, we do not think that the

prosecution has been able to establish the case beyond

reasonable doubt. It is well settled that when a case is based on

circumstantial evidence, such evidence has to satisfy three tests.

Firstly, the circumstances from which an inference of guilt is

sought to be proved must be cogently and firmly established;

secondly the circumstances should of definite and unerringly

point towards guilt of the accused; and thirdly the circumstances

taken cumulatively must form a chain so complete that there is no

escape from the conclusion that within all human probability the

crime was committed by the accused and no one else.

21. In the present case, evidence does not complete the chain

and does not rule out the possibility of any third person

committing the said offence. In these circumstances, we are

inclined to grant benefit of doubt to the accused Member Singh,

Pappu and Amar Pal and accordingly their conviction is set aside