Ramesh vs State Of The Nct Of Delhi
2012 Latest Caselaw 6049 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                   RESERVED ON : 25th September, 2012
                                   DECIDED ON : 9th October, 2012

+      CRL.A. 177/2011
       RAMESH                                      ..... Appellant
                       Through : Mr.Deepak Vohra, Advocate.


       CRL.A. 182/2011
       RUKMUDDIN                                   ..... Appellant
                             Through : Mr.Sumer Kumar Sethi, Advocate.

                       Versus
       STATE OF THE NCT OF DELHI                    ..... Respondent
                             Through : Mr.Sanjay Lao, APP for the State.


        CORAM:
        MR. JUSTICE SANJIV KHANNA
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Ramesh (A-1) and Rukmuddin (A-2) impugn their

conviction in Sessions Case No.93/2010 by which they were convicted for

committing offences punishable under Section 302/364/482/43 IPC and

sentenced to undergo imprisonment for life with fine. The facts of the case

as unfolded in the charge-sheet are as under:

2. As per the charge-sheet, Rajender Yadav (since deceased)

was registered owner of Eicher Canter No.HR 55 C 1206. He had

employed A-1 and A-2 as driver and cleaner, respectively on the said

Canter. On the night intervening 19/20.08.2005 at around 3:00 A.M. they

both went to the house of the deceased Rajender Yadav and insisted him

to accompany them for having negotiations with a customer who wanted

to hire the Canter for transportation of goods from Bhiwadi (Rajasthan).

Though Rajender Yadav was not keeping good health, he went with them.

On 23.08.2005, complainant Raj Singh Yadav, deceased's brother,

received a telephone call from A-1 to inform that they were going to

Kolkata with the goods. A-1 disconnected the phone when PW-3 wanted

to speak to his brother. Further case of the prosecution is that on

20.08.2005 the accused visited PW-5 (Kanwar Singh) at village Utera,

P.S.Ateli Mandi, Distt.Mahender Garh, Haryana to borrow `500/- for

getting diesel. PW-5 saw a person lying in an injured condition in the

Canter and from him came to know that he was Rajender Yadav of village

Rajokari. On 24.08.2005, he conveyed this information to PW-8 (Vinod

Kumar)of village Rajokari who in turn informed the complainant-Raj

Yadav. PW-3 (Raj Yadav) visited PW-5 (Kanwar Singh) on 25.08.2005 to

verify the information.

3. Further case of the prosecution is that on 28.08.2005 at

around 8:00 A.M. when complainant Raj Singh Yadav with his cousin

PW-2 (Subhash Yadav) was going to the jhuggies of the accused persons,

he saw a vehicle on the red light of village Rajokari and found that it was

Canter bearing No. HR-55 1286. The informant saw A-I sitting on the

driver's seat and A-2 accompanying him in the vehicle. When he inquired

from A-1 as to where they were going with the vehicle and where his

brother was, the traffic light turned green and the accused persons fled

with the vehicle towards Kapashera. The complainant suspected that the

accused had committed murder of his brother. He lodged First

Information Report (Ex.PW-3/A) with the police. SI Jarnail Singh made

endorsement over it and sent the rukka for registration of the case under

Section 364/34 IPC. Vide DD No.31A recorded at around 11:45 A.M. on

28.08.2005 the police set-out for the investigation of the case. The

investigation was transferred to Inspector G.R.Solanki. At the pointing

out of the secret informer and the complainant, the police arrested A-1 and

A-2 at Kapashera and recorded their disclosure statements. They

recovered weapon of offence (Ex.PW-3/A) used for inflicting injuries to

the deceased vide seizure memo (Ex.PW-3/D). The accused persons in

their disclosure statements disclosed that after committing Rahender

Yadav's murder, they had thrown the body in a well near Patan, Kotputli,

District Sikar. The accused led the police team to the said well and

recovered the body from there. The investigating officer conducted

inquest proceedings and sent the body for post-mortem examination in

Delhi. Dr. Sarvesh Tandon (PW-6) conducted post-mortem examination

of the body.

4. During investigation, the investigating officer collected the

call details record of phones No. 9818543388 and 39522029. The

exhibits were sent to Forensic Science Laboratory and reports were

collected. The IO recorded statements of the witnesses conversant with

the facts and after completion of the investigation submitted a charge-

sheet against both the accused for committing the offences mentioned

previously. The accused were duly charged and brought to trial.

5. The prosecution examined 17 witnesses to prove the guilt of

the accused. Their statements were recorded under Section 313 Cr.P.C.

and they pleaded false implication. After considering the rival

contentions of the parties and appreciating the evidence and documents on

record, the Trial Court by the impugned judgment convicted both the

accused. Being aggrieved, the appellants have preferred the appeals.

6. Learned counsel for the appellants while assailing the

impugned judgment vehemently urged that the Trial Court did not

appreciate the evidence in its true and proper prospective and fell into

grave error in relying upon the uncorroborated testimony of PW-3 (Raj

Singh Yadav), PW-5 (Kanwar Singh) and PW-8 (Vinod Kumar) without

ensuring their credibility and truthfulness. The investigation was highly

faulty and conducted in a slipshod manner. The prosecution could not

establish the circumstances of motive and recovery of weapon of offence.

The circumstances of last seen, recovery of body at the instance of the

accused persons are highly suspicious and doubtful and have not been

proved beyond reasonable doubt. The statements of the witnesses are full

of contradictions, discrepancies and improvements. The counsel pointed

out that the inordinate delay in filing the complaint could also indicate that

there was some collateral reason for lodging the complaint against the

accused.

7. While supporting the judgment in its entirety, the learned

APP urged that it did not call for interference. The prosecution has

proved all the incriminating circumstances beyond reasonable doubt and it

stands established that it was only the accused and none else who were the

perpetrators of the crime. The police was not aware about the deceased's

murder and only from the disclosure statements of the accused it

discovered that they have thrown the body in a well at a remote place after

committing the murder. The accused recovered the body from a well and

that place was not accessible to the public at large. The said place was

within the special knowledge of the accused only. The Canter in question

was recovered from the possession of the accused. They did not explain

as to why they did not return to the village after transportation of the

goods. The deceased was last seen in the company of the accused and the

accused did not explain how and under what circumstances, he parted

company with them. Non-existence of motive and non-recovery of exact

weapon of offence are not fatal to the prosecution case.

8. We have considered the submissions of the parties and have

examined the Trial Court record minutely.

(a) Homicidal death

9. Homicidal death of Rajender Yadav is not under challenge.

PW-6 (Dr.Sarvsh Tandon) who conducted autopsy on the body on

29.08.2005 was of the opinion that the cause of death was haemorrhagic

shock, consequent upon injury to right lung by a sharp edged weapon.

Injury No.1 was opined sufficient to cause death in the ordinary course of

nature. Time since death was fixed 9-10 days. The opinion given in the

post-mortem examination report (Ex.PW-6/A) remained unchallenged in

the cross-examination. Undoubtedly, it is a case of culpable homicide.

10. The crucial aspect to be determined is who was the author of

the injuries to the deceased? At the outset, it may be mentioned that the

entire prosecution case hinges upon circumstantial evidence only. It is

relevant to note that the Trial Court categorically held that the prosecution

was unable to establish accused's motive to murder the deceased. It was

also of the opinion that prosecution did not recover the exact weapon of

offence used for inflicting injuries to the deceased. It further observed

that the investigation was conducted in a slipshod manner. However, in

its opinion, interest of justice demanded that deliberate omission on the

part of the Investigating Officer should not be taken in favour of the

accused as it would be giving premium for the wrongs of the prosecution

designedly committed to favour to them. The Trial Court primarily based

conviction on the circumstances of last seen; recovery of Canter from the

possession of the accused and recovery of the body of the deceased

pursuant to their disclosure statements. These circumstances have been

assailed by the counsel for the appellants.

(b) Circumstance of last seen

11. PW-3 ( Raj Yadav) for the first time on 28.08.2005 in his

statement Ex.PW-3/A revealed to the police that Rajender Yadav went

with the accused on the night intervening 19-20/8/2005 at about 3:00

A.M. He testified that both the accused knocked the door of their house

that night. He opened the door and inquired from the accused as to what

was the matter. The accused told him that they had to load goods in the

truck from Bhiwadi, Rajasthan and were to take the goods ahead to some

place and wanted Rajender to accompany them to negotiate with a sound

party who wanted to hire the truck. Rajender expressed inability to

accompany them due to ill health. When the accused insisted, he took the

keys with papers and went with the accused. This circumstance of 'last

seen' alleged by the witness appears doubtful. In the cross-examination,

he disclosed that Rajender Yadav lived separately but in the same

building. In that eventuality, there was no possibility of the accused

persons to knock at his house and to have conversation with him for

taking Rajender with them. PW-7 Shyamwati, deceased's wife, merely

deposed that she had got the Canter released on superdari. She did not

reveal that the accused had visited their residence that night at 3:00 A.M.

or that her husband Rajender Yadav had gone with them. She is

conspicuously silent as to when Rajender Yadav was to return or he had

taken any money with him at the time of his departure. She did not

depose if any efforts were made by her or her family members to search

Rajender Yadav or the accused prior to 28.08.2005. She also did not

explain why no missing person report was lodged with the police for

about eight days. She did not testify if at any time she was associated in

the investigation. Her statement on material facts was not recorded under

Section 161 Cr.P.C. It is not clear if she was informed that Rajender

Yadav was seen in injured condition by PW-5 (Kanwar Singh). She did

not corroborate PW-3 (Raj Yadav)'s testimony on any aspect.

12. It is not certain if Rajender Yadav or the accused persons had

mobile with them. It is unbelievable that after getting telephone call on

23.08.2005, PW-3 or his family members would not remain in touch with

the victim. The police did not collect any evidence to establish the

deceased's movement with the accused after his alleged departure with

them at 3:00 A.M. It is alleged that on 20.08.2005 at about 5:30 P.M., the

accused went to PW-5 (Kanwar Singh) at village Utera, P.S.Ateli Mandi,

Distt.Mahender Garh, (Haryana) and A-1 demanded `500/- from him to

arrange diesel. It is further alleged that at that time PW-5 (Kanwar Singh)

saw a person lying in injured condition in the Canter and when he made

inquires from A-1 about him, he (A-1) told that he was a thief. PW-5

(Kanwar Singh) further deposed that the person in injured condition told

him that he was Rajender from village Rajakouri. He thereafter informed

on mobile No.9818543388 to Vinod on phone 9416340147. We are not

convinced that the accused visited PW-5 (Kanwar Singh) residing in

Haryana just to get `500/- to arrange diesel for the Canter. There is

inconsistent version whether `500/- were actually given by PW-5 to A-1

or not. It is highly improbable that Rajender Yadav lying in injured

condition in the Canter disclosing his name and village would not seek

assistance to inform his relatives or police for the injuries caused to him.

PW-5's conduct is also unreasonable/unusual as after coming to know that

Rajender Yadav was not a thief and was lying injured in the Canter, he did

not confront the accused. There is no explanation why he did not inform

the police or his friend Vinod that day itself. It is alleged that the

telephone call was made by PW-5 (Kanwar Singh) to Vinod on

23/24.08.2005. PW-8 (Vinod Kumar) revealed that he had received the

phone call on the intervening night of 24/25.08.2005. It is alleged that

PW-8 conveyed this information to PW-3 (Raj Singh Yadav). Instead of

reporting the incident to the police, he allegedly travelled a distance of

300 kilometers to visit PW-5 (Kanwar Singh) to verify the information

given to PW-8 (Vinod Kumar). Even after getting the confirmation of the

facts from PW-5 (Kanwar Singh) on 25.08.2005, he did not set the police

machinery into motion. He intimated the police for the first time about

disappearance of his brother on 28.08.2005 at about 11.00 A.M. After

registration of the case, the police did not record statements of PW-5 and

PW-8 immediately. Statement of PW-8 (Vinod Kumar) and PW-5

(Kanwar Singh) were recorded after a delay of two months on 20.10.2005

and 27.10.2005 respectively. The Investigating Officer did not give

plausible and acceptable reasons for the inordinate delay in recording their

statements under Section 161 Cr.P.C.

13. It is alleged that PW-5 (Kanwar Singh) had seen Rajender

Yadav in injured condition in the Canter on the front seat. However, after

the seizure of the truck in question, the IO did not seize the front seat to

find out if it had blood-stains. All these circumstances cast serious doubt

whether the accused had visited PW-5 (Kanwar Singh) at his village and

the accused persons were seen in the company of the deceased on

20.08.2005.

14. The oral evidence is inconsistent with medical evidence. The

police allegedly recovered the weapon of offence i.e. wooden piece

(Ex.PW-3/I) used for inflicting injuries to the victim from the Canter itself

on 28.08.2005 vide seizure memo Ex.PW-3/D. However, the prosecution

failed to prove if it was the weapon used to cause injuries. No independent

public witness was associated at the time of recovery of the weapon. It

was sent to Forensic Science Laboratory. However, FSL report (Ex.PW-

16/E) did not depict any blood on it. There was no reason for the accused

to retain this 'wooden piece' of insignificant value for eight days. The

Investigating Officer did not produce the weapon of offence before

Dr.Sarvesh Tandon, autopsy conducting doctor to ascertain if injuries

found on the deceased were possible with that weapon. Even when

Dr.Sarvesh Tandon appeared in the Court, the weapon was not shown to

him. As per the post-mortem report, injury No.1 was incised penetrating

wound caused by a sharp edged weapon. It was not revealed that the

wooden piece (Ex.PW-3/I) was sharp pointed object. The Investigating

Officer did not prepare its sketch. The Trial Court also observed that the

wooden piece was not the weapon of offence used in the crime.

15. The prosecution could not prove the time when the deceased

was killed. The post-mortem examination report (Ex.PW-6/A) conducted

on 29.08.2005 estimated time since death about 9-10 days. PW-3 (Raj

Singh Yadav) claimed that the deceased had gone with the accused on the

night intervening 19/20.08.2005. PW-5 (Kanwar Singh) claimed that he

had seen Rajender Yadav in injured condition on 20.08.2005 at about

05.30 P.M. in the Canter. Body of the deceased was found in the well on

28.08.2005 in village Pattan, District Siker. There is no evidence on

record to infer as to when the body was thrown in the well. It is not clear

when the death took place or that the accused persons were in the

company of the deceased soon before his death. 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 was

found dead is so small that possibility any person other than the accused

being the author becomes impossible.

(c) Recovery of Canter and body of the deceased

16. We are conscious that recovery of dead body affords a strong

and reasonable ground for the presumption that the party at whose

instance it was recovered is the real offender. However, the prosecution is

required to establish the circumstance beyond doubt. It seems that the

prosecution has not presented true facts as to how and under what

circumstances, the accused persons were arrested and the alleged

disclosure and the purported recovery was made. PW-3 (Raj Singh

Yadav)'s conduct is highly unnatural and inconsistent. He claims that on

28.08.2005 while going to the jhuggi of Ramesh (A-1) when he reached

near red-light of village Rajokari, he saw the truck. Considering that, the

said truck belonged to them, he reached close to it. It was having changed

registration No.HR-55-1286. It was being driven by A-1 and A-2 was

sitting by his side. He inquired whereabouts of his brother Rajender from

A-1. In the meantime, A-1 drove the truck when the light turned green and

he was dragged to some distance. Thereafter, he went to the police station

and lodged the report (Ex.PW-3/A). He was confronted with the statement

where there was no mention that he was dragged. The version given by

the witness inspires no confidence. The accused who had allegedly killed

Rajender Yadav were not expected to travel through village Rajokari with

the Canter in question. PW-3 did not reveal the name of his cousin who

was with him at that time. First information report was lodged at about

11.00 A.M. There was no justification for the informant to delay the

information after finding the accused in the truck at about 08.00 A.M.

PW-2 (Subhash Yadav) gave a different version and merely stated that on

28.08.2005 at around 08.00 A.M. when they were going to trace the

accused at their jhuggi at Rangpuri and reached red light of Rajokari, PW-

3, from a distance of about 100 meters, pointed out a Canter belonging to

Rajender. Raj Singh immediately reached near the Canter and wanted to

approach the driver but it left as the light turned green. PW-2 did not

accompany the complainant to the police station. He did not attempt to

chase the truck. No information was conveyed to police control room.

PW-2 did not corroborate the testimony of PW-3 that he had conversation

with A-1 or that PW-3 was dragged to a certain distance. It is hard to

believe that after having conversation with PW-3 (Raj Singh Yadav), A-1

and his associate A-2 would not flee from Delhi and would make an

attempt at Kapashera to sell the truck.

17. Case of the prosecution is that PW-3 (Raj Singh Yadav) went

to the police station and his detailed statement (Ex.PW-3/A) was recorded

by Insp.Jarnail Singh. It is mystery why the Duty Officer did not record

the First Information Report. The rukka was recorded at the police station

itself at 11.00 A.M. on 28.08.2005. The Duty Officer did not send the

special report to the concerned area Magistrate. Copy of the First

Information Report was delivered to the area Magistrate on 29.08.2005.

Soon after the registration of the FIR, the police set out to apprehend the

culprits. Strange enough, they immediately got secret information and the

secret informer informed at 12.30 P.M. to PW-17 (Insp.Jarnail Singh) that

two boys were in search of a buyer to sell the truck/Canter. They

immediately reached Kapashera and at the instance of the informer and

complainant apprehended two persons and their names were ascertained

as Ramesh Kumar (A-1) and Rukmuddin (A-2). They were found in

possession of the Canter. Both of them were interrogated at the spot itself

and their disclosure statements (Ex.PW-3/B and Ex.PW-3/C) were

recorded. The 'wooden piece' used for inflicting injuries was recovered

from the truck vide seizure memo Ex.PW-3/D. The accused conveniently

agreed to recover deceased's body thrown by them in a well. The police

came into motion with lightening speed and from the place of

apprehension, they directly went first to Kotputli and after travelling 18

kilometres reached village Patan. After covering a distance of 15/20 paces

on the road, they were able to recover the body of the deceased from the

well on 28.08.2005 itself. It was seized vide seizure memo Ex.PW-3/E.

The swiftness shown by the police in registering the case, immediately

apprehending the accused with the Canter in question and thereafter,

recovering the body from a long distance persuades the court to be on its

guard and be cautious while evaluating the worth of their testimonies.

The court has to adopt a careful approach and analyse evidence to find out

whether it is cogent and credible as till that time the police was unaware if

any such occurrence had taken place. No permission was taken by the

Investigating Officer from the competent Authority to travel out of Delhi.

No independent public witness was joined at any stage of the recovery.

When the police reached Pattan, no villager was associated to join the

investigation. No information was given to the local police station about

the arrival of the police from Delhi and no arrival entry was recorded in

the said police station. Delhi Police did not seek assistance from the local

police to take the body out of the well. None of the prosecution witnesses

revealed the name of the villager/public person who was employed to take

the body out of the well with rope. The owner of the fields whose name

finds mentioned in the scaled site plan (Ex.PW-11/A) was not informed.

Delhi police did not examine any person to ascertain as to how and under

what circumstances the body reached in the well and if so, when. It is not

certain when, what time and by what mode, the body was thrown in the

well. It has come on record that when the body was taken out, it was

highly decomposed and foul smell was coming out of the well. The body

was in rotten condition. Maggots were present over the body. It is hard to

believe that the villagers would not come to know about a body lying in

the well having bad smell and would not inform the local police. It is

unbelievable that the human body would remain lying undetected for

number of days in the well under such circumstances.

18. PW-12 (ASI Mohd.Yasin Khan) deposed that after the

recovery of the body, he with Const.Satyawan, Const.Jafar and HC Suresh

went in the said Canter to PS Pattan and informed the police about the

recovery of the dead body. He however, did not reveal the name of the

police Officer to whom the information about the recovery of body was

given. He did not allege if any Daily Diary entry was recorded in the

police station. No such DD entry was proved on record. The Investigating

Officer did not cite any such police official from PS Pattan as a witness in

the charge-sheet. No request was made to the Trial Court to summon and

prove the DD entry recorded at PS Pattan regarding the recovery of the

body at the instance of the accused. We notice that in the lower Court

record an attested copy of DD No.962 dated 28.08.2005 PS Pattan is on

record. No witness from PS Pattan was summoned with the original

record to prove this DD No.962. Contents of DD No.962 reveal that the

entry was recorded by ASI M.Y.Khan himself at 08.00 P.M. at PS Pattan

himself. It was not recorded by any police official of PS Pattan. The

accused were not taken to the police station. The body of the deceased

was also not shown to the police Officers at PS Pattan. None of the police

Officers from PS Pattan was taken to the spot to confirm that there was

recovery of the body from the well. No permission from the competent

authority was taken to bring the dead body from Rajasthan State to Delhi.

DD No.962, the carbon copy of which is on record cannot be looked into

and has no legal sanctity and does not at all establish that the police of PS

Pattan was associated at the time of recovery of the body.

19. The prosecution did not comply with the provisions

contained in Section 166 (3) (4) Cr.P.C. and its non-compliance, raises

doubt to the prosecution story regarding recovery of the body in the well

at Pattan. Section 166 Cr.P.C. lays down the procedure to be followed by

an officer In-charge of the police station where searches are made outside

the limits of the police station concerned. Sub-section (1) requires an

officer incharge of a Police Station or a Police Officer not being below the

rank of Sub Inspector making an investigation may require an officer

incharge of another Police Station, to cause to a search to be made in any

place, in any case in which the former officer might cause such search to

be made, within the limits of his own station. It is optional for the former

officer to do so. Sub-Section (2) enjoys a duty upon such officer, so

required to proceed according to provision of Section 165 Cr.P.C. and

forward the things found, if any, to the officer at whose request the search

was made. From reading of the said sub-sections 166 (3) and (4) Cr.P.C.,

it is clear that Investigating Officer belonging to one Police Station is

permitted to search any place falling within the limits of another police

station in certain exigencies without making any requirement to the police

officer of the police station where the search is to be conducted in certain

exigencies. One such exigency can be when there is possibility of delay in

requisitioning the services of a police officer of another police station and

such delay could defeat the very purpose of the search. In such

circumstances, when search is conducted by the Investigating Officer

without requisitioning the services of the officer incharge of the another

police station within whose jurisdiction the search was conducted, under

Sub-Section (4) he is required to forthwith send notice of the search to the

officer incharge of the police station within the limits of which such place

is situated, and is also required to send along with such notice a copy of

the list, if any, prepared under Section 100 Cr.P.C. He is also required to

send to the nearest Magistrate empowered to take cognizance of the

offence, copies of the records prepared by him under Sub-Section 1 and 3

of Section 166 Cr.P.C. In this case admittedly the Investigating Officer

did not give any intimation to the police of PS Patan within whose

restriction the search in the well was conducted before conducting the

search. The failure to comply with the directions regulating searches casts

doubt upon bona fides of the alleged recovery on the basis of the

disclosure, though its failure to comply with the directions of Section 166

Cr.P.C. does not vitiate the trial.

20. The Trial court record contains some photographs and it

appears that the truck/Canter in question was photographed. However,

these photographs have not been proved. It is not clear as to who had

taken the photographs and if so, when and where. The Photographer has

not been cited and examined as a witness. None of the prosecution

witnesses testified in the court that the photographs of the Canter in

question were taken. The Investigating Officer has failed to explain this

major lapse. The Investigating Officer rushed for the recovery of the body

from the place of apprehension of the accused persons. However, the said

photographer was not taken along with the raiding team to the place of the

recovery of the body. No photographs of the body recovered from the well

were taken.

21. After the Canter (Ex.P4) with its documents was seized vide

seizure memo (Ex.PW-3/J), it became a case property. The IO did not

deposit the case property in the police station. It is strange that the said

Canter was used for travelling to Pattan and the body of the deceased was

allegedly transported in that very Canter to Delhi. There is no record that

the Canter in question travelled from one State to other state and no toll

tax etc. was paid. The IO did not get the body medically examined at

Pattan. No request for conducting post-mortem examination of the body

was made there. Curiously, the body which was in decomposed state and

had found smell was dumped in a gunny bag in the same Canter and

deposited in the mortuary at Delhi. The police did not collect any

earth/soil control, blood stained earth from the place of recovery for

chemical examination to ascertain that the body was recovered from that

spot. It is mystery that nothing was recovered in the search of the body of

the deceased. Pant and shirt which the deceased was wearing were sent to

FSL along with the gunny bag, bed-sheet, lungi and underwear. However,

it was not ascertained if blood on these articles was of 'human' origin. It

also did not indicate the blood group. It is not certain if these articles

belonged to the deceased. Failure on the part of the police to recover the

blood stained earth and send it for chemical examination in a serious case

of murder creates reasonable doubt as to the genuineness of the

prosecution case in regard to the recovery of such material.

22. At the time of their arrest, the accused persons were having

small amount of money i.e. `150/- (A-1) and `110/- (A-2). The police did

not gather any information about the movements of the accused persons

during the period from 20.08.2005 to 28.08.2005. It is highly improbable

that the accused persons having no money with them would travel to a

long distance to Pattan to dispose of the body in a well. We notice that A-

1 was original resident of village Chatrampura, police station Pattan,

District Siker. There was every chance of A-1's identification there and

they could not have taken the risk to throw the body in a well there.

23. All these circumstances cast serious doubt that the body was

recovered from the place on the date and time mentioned therein at the

instance of the accused.

(d) Delay in FIR

24. There was inordinate delay in lodging the First Information

Report with the police. No explanation whatsoever was offered by the

complainant for not reporting the incident to the police at the earliest. The

deceased went with the accused on the night intervening 19-20/8/2005 at

about 3:00 A.M. According to PW-3 (Raj Singh Yadav) he had received

telephone call from A-1 on 23.08.2005 to inform that they were taking

goods to Kolkata from Bhiwadi, Rajasthan. When he asked A-1 to give

telephone to his brother Rajender, he disconnected it. PW-3 never

attempted to contact his brother any time. He even did not contact A-1 or

A-2 to find out as to where they were or when they were to return to

Delhi. There is nothing on record to show that after his departure,

Rajender Yadav ever remained in touch with any of his family members.

When there was no communication of the deceased with any of his family

members for so long and whereabouts of the accused were not known

despite alleged visits of the complainant to their residence, it must have

alerted him (the complainant) to suspect something foul. Even when he

allegedly got information from (PW-8) Vinod Kumar on 24.08.2005 that

(PW-5) Kanwar Singh of village Utera, P.S.Ateli Mandi, Distt.Mahender

Garh, Haryana had seen his brother Rajender in an injured condition in the

truck and he went to (PW-5) Kanwar lal on 25.08.2005 to verify the

information, he did not bother to seek assistance of the police to trace his

missing brother. Only on 28.08.2005 at about 11:00 A.M., he went to the

police station to lodge the First Information Report. No explanation was

given for the inordinate delay in lodging the report with the police. The

version narrated by the informant to the police in his statement Ex.PW-

3/A becomes suspect. It is well settled that delay in lodging the FIR often

results in embellishment which is a creature of after-thought. On account

of delay, the report not only gets bereft of the advantage of spontaneity,

but danger creeps in of introduction of coloured vision, exaggerated

account or concocted story as a result of deliberation and consultation.

(e) Motive

25. The deceased (Rajender Yadav) was the owner of Canter.

There is no material to infer when A-1 and A-2 were employed as driver

and cleaner on the Canter. It appears that they were in employment for

about one month prior to the incident. PW-8 (Vinod Kumar) with whom

A-1 was earlier employed as a driver had recommended A-1's

employment on the vehicle. It can be inferred that PW-8 (Vinod Kumar)

had no grievance about his conduct and behaviour during his employment

with him. There are no allegations that during their employment with the

deceased, the accused had any animosity on any account with him. The

deceased or his family members had no complaint about their conduct

prior to the recovery of the body. Apparently, the accused had no ulterior

motive to plan deceased's murder all of a sudden. It is not the

prosecution's case that when the deceased went with the accused on the

night intervening 19-20/8/2005 at about 3:00 A.M., he had carried

substantial money. Learned APP argued that the accused's motive was to

misappropriate the sale proceeds of the Canter and they were in search of

a prospective buyer to dispose it off. We find no substance in the

submission. In that eventuality, there was no occasion for the accused to

insist Rajender Yadav to accompany them for transportation of goods.

Moreover, for eight days no attempt was made to dispose of the Canter in

question. The prosecution could not establish precise motive of the

accused to murder Rajender Yadav with whom they had no prior ill-will

or animosity. Even though existence of motive loses significance when

there is reliable ocular testimony, in a case where the ocular testimony

appears to be suspect, the existence or absence of motive acquires some

significance regarding the probability of the prosecution case.

(f) Conclusion

26. All these circumstances relied upon by the prosecution have

element of strong suspicion but have not been proved conclusively beyond

reasonable doubt. The statements of the witnesses are full of

contradictions, omissions and improvements. Virtually there is no

clinching evidence on record without infirmities on any circumstance i.e.

the deceased was ever seen in the company of the accused or that they

were aware about the dead body and pursuant to their disclosure

statement, it was recovered from a well. Silence of PW-3 (Raj Singh

Yadav) (who became active only on 28.08.2005) for not reporting the

incident for eight days baffles the mind of the Court.

27. The accused cannot be convicted on the basis of a scanty,

unreliable and faulty investigation which has gaps and holes. Not a single

circumstance spoken by the witnesses inspires confidence to establish the

guilt of the accused. It is relevant to note that during PW-3 (Raj Singh

Yadav)'s examination in the court, he was found in possession of a piece

of paper containing the particulars of the case which he was to depose.

The said piece of paper was taken on record. PW-3 (Raj Singh Yadav) did

not explain as to why he was having the piece of paper containing the

particulars to be deposed at the time of his examination in the Court. It is

well settled that the prosecution is required to prove its case beyond

reasonable doubt and cannot take advantage of the weakness of the

defence. If two views are possible on the evidence adduced in the case,

one pointing to guilt of the accused and the other to his innocence, the

view which is favourable to the accused should be accepted. In cases

where the court entertains reasonable doubt regarding the guilt of the

accused, the benefit of doubt must be given to the accused and not to the

prosecution.

28. In the light of the above discussion we are of the view that

the evidence adduced by the prosecution was not sufficient to record the

guilt for the offences, the accused had been charged with. Various

incriminating circumstances relied upon by the court are not sufficient to

draw an inference of guilt of the appellants and the chain of circumstances

was not cogently and firmly established and these circumstances have no

definite tendency to unerringly point towards the guilt of the accused. In

the case of circumstantial evidence, the chain of circumstances should be

so complete that there is no escape from the conclusion that in all

probability the crime was committed by the accused and none else. The

appeals are allowed; the appellants are given benefit of doubt and are

acquitted. They be released immediately, if are not required in other case.

29. Trial Court record be sent back immediately.

(S.P.GARG) JUDGE

(SANJIV KHANNA) JUDGE October 09, 2012 sa