Delhi High Court

Ramesh vs State on 2 December, 2013

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                  Judgment Reserved on :25.11.2013
                                  Judgment Delivered on: 02.12.2013


+     CRL.A. 285/2000


      RAMESH                                       ..... Appellant
                         Through:      Mr.Tarunesh        Kumar,
                                       Mr.Neelkanth Kumar   and
                                       Mr.Pradeep Kumar Sharma,
                                       Advocates.
                         versus
      STATE                                        ..... Respondent
                         Through:      Mr.Sunil Sharma, APP.
      AND
+     CRL.A. 388/2000

      RAM GULAM                                    ..... Appellant
                         Through:      Mr.Tarunesh        Kumar,
                                       Mr.Neelkanth Kumar   and
                                       Mr.Pradeep Kumar Sharma,
                                       Advocates.
                         versus
      STATE                                        ..... Respondent
                         Through:      Mr.Sunil Sharma, APP.



CRL.A.Nos. 285/2000 & 388/2000                              Page 1 of 28
 CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellants are aggrieved by the impugned judgment and order

of sentence dated 24.12.1999 whereby they had been convicted under

Sections 302/201/34 IPC and had been sentenced to undergo

imprisonment for life and to pay a fine of Rs.50,000/- in default of

payment of fine to undergo simple imprisonment for five years for the

offence under Section 302 IPC; they had been sentenced to undergo

rigorous imprisonment for seven years each for the offence under

Section 201 IPC and to pay a fine of Rs.10,000/- in default of payment

of fine to undergo simple imprisonment for one year. Appellant Ram

Gulam was also convicted separately under Section 27 of the Arms Act

and sentenced to undergo rigorous imprisonment for five years and to

pay a fine of Rs.5000/- in default of payment of fine to undergo simple

imprisonment for six months.

2 The version of the prosecution is as follows:

i. On 29.12.1995 at 10.00-10.30 a.m. Chob Singh (PW-5) an

employee of the Horticulture Department in a park outside his

office saw a headless dead body of a male lying there. Police

was informed. DD No.17B (Ex.PW-19/B) was recorded in the

local police station at P.S.Rajouri Garden. ASI Ram Niwas

along with H.C. Ravi Dutt (PW-9) reached the spot i.e.

Woodland Park, Subhash Nagar Mod; Inspector R.K.Rathi

(PW-19) also joined them. A headless body of a male was

found lying in the bushes. Deceased was wearing a blue

colour baniyan and red colour underwear (kachha); there was a

muffler and a blood stained shirt lying near the body. Local

inquiry could not reveal the identity of the dead body.

ii. Rukka Ex.PW-19/B was dispatched and an FIR against

unknown was registered under Section 302/34 IPC.

iii. Site plan Ex.PW-19/C of the spot prepared. Photographs of

the scene of crime were taken. Exhibits were lifted from the

spot which included bloodstained clothes and earth control

vide memo Ex. PW-19/G. Inquest proceedings were ordered.

iv. On 30./12.1995 on an application (Ex.PW-19/F) post

mortem of the deceased was conducted by Dr.L.T. Ramani

(PW-16). The post mortem report was proved as Ex.PW-

16/A. The post mortem doctor had noted that it was a

headless body of a male; height without head was 142 c.m.;

complexion was dark and was uncircumcised. The post

mortem examination further revealed that there was

decapitation across the middle part of the neck. The skin all

around showed fairly regularly cut edges. There was an

abrasion ½ inch below the cut level present horizontally

running behind up to postero-lateral surface. Size of the

abrasion was 4 ½ inch x ½ inch. The skin flaps were seen

hanging on the back of neck suggesting multiple leveled cuts.

The decapitation was through the 4th cervical vertebra body.

The cut surface of the bone was even.

On internal examination, neck tissues showed no

appreciable extra vassation of blood in the neck tissues. The

cut skin edges were devoid of any blood clot. (suggesting post

mortem nature of decapitation). Ribs were intact. Lungs were

adherent to the chest wall, heart was normal. Stomach was full

and containing semi disgusted food. Rigour mortis had passed

off.

The opinion regarding cause of death was deferred till the

receipt of the analysis of the viscera and skin piece for tissue

matching on the recovery of the head.

v. PW-16 handed over a wooden box containing the viscera,

one sealed bottle containing the skin of the deceased and one

sealed envelope containing a blood cloth piece as also the

underwear and baniyan of the deceased; clothes were handed

over to the police unsealed to facilitate the identification of the

dead body.

vi. Further investigation included a hue and cry notice and a

door to door inquiry to identify the deceased and the

perpetrators of the crime. House nos.147 and 323, Transit

Camp Raghubir Nagar, in the nearby vicinity were lying

locked for a long time. Kanta (PW-4) the landlady of House

No.157 revealed that Ram Gulam and Ramesh were her

tenants for the last eight years i.e. from the year 1987; they

were living in House No.157 along with four other persons; in

December 1995, they had locked the premises and started

living at some other place.

vii. Further inquiry revealed that these persons were natives of

village Chakmeera Pur, Unnav, U.P.

viii. On 18.4.1996 Inspector R.S.Dahiya (PW-20) went to their

native village where he located Ramesh (PW-18) the brother

of Jageshwar who was also reported missing from the village.

It was learnt that accused Ram Gulam and Ramesh were

working as labourers in Azadpur, Subzi Mandi.

ix. On 19.4.1996, PW-19 along with Inspector Dahiya and ASI

Ghasi Ram along with other police personnel went to Azadpur

Subzi Mandi in their search.

x. Both Ram Gulam and Ramesh were arrested vide memos

Ex.PW-19/H and Ex.PW-19/J; their disclosure statements

Ex.PW-9/A and Ex.PW-9/B were recorded. Pursuant to their

disclosure statements both the accused persons led the police

party to a gutter in Woodland Park where they took out one

potali and inside that potali was wrapped a human skull. One

white coloured shirt, one red coloured shirt, a pink coloured

shirt, one white coloured pant and one loongi and a pair of

hawai Chappals were also found there. These articles were

sealed and taken into possession and so also the skull vide

memo Ex.PW-7/A. On the same day i.e. 19.4.1996 accused

Ram Ghulam led the police party to house No.157 from where

he took out a dagger from the parchhati of the house. Its

sketch Ex.PW-4/A was prepared and was taken into possession

vide memo Ex.PW-4/B.

xi. Photographs of the scene of crime Ex. PW-19/N were

clicked. Site plan of the place where the dead body was found

was prepared and proved as Ex. PW-19/R.

xii. Separate inquest proceedings were conducted regarding

the recovery of the skull.

xiii. Death report Ex.PW-19/A was prepared.

xiv. On an application dated 19.4.1996 (ExPW-19/S) a request

was made to the post mortem doctor to determine as to

whether the skull belonged to the dead body on which the post

mortem had been conducted vide Ex.PW-16/A.

xv. The second post mortem conducted by PW-16 of the

human skull on 22.4.1996 revealed that the soft tissues were

attached to the lower part of occipital area and vertebrae.

The lower jaw was present showing 16 teeth, both central

incisors were missing (fallen). Upper jaw showed 16 sockets,

both central incisors and 3rd molar tooth on the right side were

missing. Few soft tissues were present in the eye ball sockets.

The mental foremen was the middle. Teeth showed some

attrition. There was no facture or injury to the skull. Four

cervical vertebrae were attached to the skull. The last one i.e.

the 4th vertebra was cut on the posterior surface. The skull

showed six male characteristics. Brain was missing. The

doctor opined that it was a human skull and that of an adult

male.

No other opinion was possible regarding cause of death

or the manner of separation of the skull from the body.

However the level of separation of skull was found

corresponding with that of the headless body recovered earlier

on 29.12.1995 which had been subjected to a post mortem vide

report Ex.PW-16/A.

This report was proved as Ex.PW-16/B.

xvi. On the same day i.e. on 22.4.1996 Constable Shoram

collected one plastic bottle containing a bone piece and

another plastic bag containing a shawl and a sweater from PW-

16 which was taken into possession vide memo Ex. PW-11/A.

xvii. The exhibits were sent to CFSL. The CFSL vide its

report (Ex.PW-19/B) dated 15.4.1998 opined human blood of

A origin on the muffler, baniyan and underwear which were

the clothes found on the headless dead body which as per the

prosecution matched with the blood group detected in the

bone which was recovered from the skull.

xviii. Human blood was also detected on the dagger Ex.P-10

but there was no reaction.

xix. This was the gist of the version of the prosecution.

3 In the statement of the accused recorded under Section 313 of the

Cr. P.C. they stated that they have been falsely implicated in the present

case; they had been picked up from their village Chakmeera Pur on

17.4.1996; no disclosure statement was made by them; they were never

tenants of PW-4; they were innocent.

4     No evidence was led in defence.

5     On behalf of the appellant arguments have been addressed at

length. It is pointed out that this is a case of circumstantial evidence

and unless and until all the links in the chain of circumstances are

proved a conviction cannot be founded. There is no other evidence with

the prosecution except the recovery of a skull which was purported to

have been recovered at the instance of the accused persons four months

after the dead body was recovered. This was from an open place i.e. in

the gutter. This recovery has been planted upon the accused persons. It

is pointed out that this is the only piece of evidence on which

prosecution is relying. Attention has been drawn to the testimony of

PW-18 where on oath in court he has stated that on 19.4.1996 Delhi

Police came to his village and told him that his brother had been traced

and thereafter they had shown him the skull of his brother at the police

station which was identified by him. Submission being that it was on

18.4.1996 that the whole exercise had been completed whereas as per

the version of the prosecution the recovery of the skull was effected

pursuant to the disclosure statement of the accused persons on

19.4.1996. This demolishes the version of the prosecution completely.

The prosecution has also failed to establish whether it is a case of

homicide as cause of death had not been given in spite of the post

mortem having been conducted both on the headless body as also on the

skull. To support this proposition reliance has been placed upon State of

Punjab Vs. Bhajan Singh AIR 1975 SC 258. Further submission being

that motive in a case of a circumstantial evidence assumes great

importance but no motive has been spelt out. On all counts the appellant

is entitled to benefit of doubt and a consequent acquittal.

6 Arguments have been rebutted by the learned public prosecutor.

Submission being that the case of the prosecution stands proved to the

hilt and the most clinching piece of the evidence is the recovery of the

skull which has been made at the behest of the accused persons. The 4 th

vertebra where the headless body had been cut and which had been

noted in the first post mortem report also corresponded with the finding

returned in the second post mortem report which had also noted that

there was a severance of the neck at the level of the 4 th vertebra; the

doctor who was the expert had opined that this skull belonged to that

headless body. The other circumstance of the recovery of the blood

stained clothes of the accused which matched the blood group of the

victim was yet another piece of clinching evidence. The impugned

judgment does not call for any interference.

7 We have perused the record. We have also heard the submissions

made by the respective parties.

8 This is admittedly a case of circumstantial evidence. The law on

circumstantial evidence is clear. In Padala Veera Reddy v. State of A.P.

;1989 Supp (2) SCC 706 the Apex Court had relied upon the following

tests which have to be satisfied in a case of circumstantial evidence:

"10.(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should 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 none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

16. The above enunciated principle of law was reiterated in the matter of State of U.P. v. Ashok Kumar Srivastava (1992) 2 SCC 86, where the Supreme Court, inter alia, observed thus:

9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is

reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt."

9 In the light of the aforenoted principles as set down by the Apex

Court we shall now proceed to analyze the case as set up by the

prosecution.

10 On 29.12.1995 a headless dead body of a male was found in the

park of the Horticulture Division at Janakpuri. This was noted by PW-5

who reported the matter to the local police station. The local police of

P.S.Rajouri Garden arrived at the spot. Photographs of the scene of

crime Ex.PW-5/A1 to A7 had been taken. The dead body was of a male

person who was wearing a blue coloured baniyan and a red coloured

underwear; muffler and a shirt were lying near the dead body. In spite

of best efforts the identity of the dead body could not be established. An

FIR under Section 302/34 IPC was registered against unknown persons

as the accused persons were not known. The inquest report

(Ex.PW-19/D) and the death report (Ex.PW-19/F) show that age of the

headless dead body was opined to be about 30 years; he was a male; the

dead body was thin and slender; in the column of distinguishing marks

the moles noted were thick and burly.

11 The post mortem report (Ex.PW-16/A) revealed the height of the

dead body to be 142 cm. The decapitation of the dead body was through

the fourth cervical vertebra. Opinion on the cause of death had been

deferred. The body was accordingly cremated in unidentified form.

The viscera and the clothes of the deceased had been preserved.

12 The investigation continued. In the course of the investigation

and door to door survey in the area of vicinity it was learnt from PW-4

that the occupants of room No.157, Transit Camp, Raghubir Nagar was

lying locked since December, 1995 and Ram Gulam and Ramesh who

were the tenants since 1987 had since left; they had been living in this

room along with four other persons. This had raised a suspicion in the

mind of the investigating team. Further inquiry revealed that Ramesh

and Ram Gulam were the residents of Village Chakmeera Pur, Unnav,

U.P.

13 On 18.4.1996, PW-20 along with his other staff gone to Village

Chakmeera Pur, Unnav where he met Ramesh (PW-19) brother of

Jageshwar who told them that his brother left the village in 1995 and

thereafter he had not returned.

14 Testimony of PW-18 reveals that Jageshwar (his deceased

brother) had on 16.12.1996 appeared in a case at Unnav; at that time he

was dressed in a white pant and a white shirt; his brother had told him

that after his court work he would leave for Delhi and would be residing

with Ram Gulam to earn his livelihood in Delhi; Ram Gulam was the

nephew of his brother-in-law. Since Jageshwar did not appear in the

Unnav Court for the next two dates PW-18 made inquiry from Ram

Gulam who was in the village and questioned him about Jageshwar

wherein Ram Gulam told him that Jageshwar had not met him in Delhi.

Missing report was lodged by PW-18 in the local police station in

February 1996.

15 Further deposition of PW-18 is to the effect that on 18.4.1996

Delhi Police had come to their village and informed him that his brother

had been traced and he was taken Delhi. He was shown the clothes of

his brother and a skull at the police station where he identified the

clothes as those belonging to his brother; Ex.P-7 was the sweater which

his brother used to wear; Ex. P-8 was a part of a shawl which belonged

to his sister. He had cremated the skull of his brother. The other articles

of clothes shown to him i.e. red shirt, white shirt, loongi and a pair of

hawai chappal were also identified by him as belonging to his bother.

16 In his cross-examination PW-18 admitted that 2-3 cases of

dacoity and robbery were pending against his brother at Unnav. He

denied the suggestion that his brother was having enmity with many

persons. He admitted that the Delhi Police had taken him to Delhi from

his home on 18.4.1996; he also reiterated that clothes shown to him

(Ex.P-7 and P-8) as also the skull were identified by him in the police

station.

17 This version of PW-18 highlights and substantiates the argument

of the learned defence counsel. It shows that it was on 18.4.1996 that

Delhi Police had gone to Unnav, U.P. and informed PW-18 that his

missing brother Jageshwar had been found. This is clear from the

deposition of PW-18. PW-20 has also reiterated this version.

18 How the police party on 18.4.1996 was aware that the deceased

brother of PW-18 had been located in Delhi, is unanswered. The

recovery of the skull pursuant to the disclosure statement of the accused

was admittedly on 19.4.1996. Version of PW-18 that he had identified

the skull and clothes of his deceased brother in the police station on

18.4.1996 which has gone unrebutted is by itself is enough to throw out

the case of the prosecution. The submission of the learned public

prosecutor that this could probably be a typographical error is dislodged

by the fact that PW-18 stuck to his stand not only in his examination-in-

chief but also in his cross-examination. If this was a typographical error

nothing prevented the public prosecutor to seek a clarification on this

count by cross-examining but he chose not to do so. In the absence of

any such cross-examination, the statement made by PW-18 is binding.

19 It is thus established that on 18.4.1996 the clothes of Jageshwar

had been shown to PW-18 in the police station along with his skull

which had been identified by him. Recovery of the skull allegedly made

on 19.4.1996 is thus demolished; it is nothing but sham and planted.

20 Version of PW-20 is also relevant on this count. He has also

categorically stated that it was on 18.4.1996 that he had gone to District

Unnav in connection with the investigation of this case where he met

PW-18 brother of Jageshwar. In his cross-examination, he admitted that

at the time when he had gone to Unnav (i.e. 18.4.1996) he knew that the

brother of the deceased was living in Unnav District. How on 18.4.1996

PW-20 knew that PW-18 was a resident of Village Chakmira, Unnav,

U.P. is again not answered. Even on a specific query, learned public

prosecutor has no answer. PW-20 in fact in his entire deposition on this

count has not spoken of any other date other than 18.4.1996.

21 PW-7 and PW-8 were witnesses to the recovery of this skull. On

19.4.1996 after the arrest of the accused they had led the police party to

a open sewer from where a skull wrapped in a jersey had been

recovered; along with the skull a white coloured shirt, a white coloured

pant, a red coloured shirt, pink coloured shirt and one loongi as also a

pair of hawai chappal were also been taken into possession. The skull

was seized vide memo Ex. PW-7/A.

22 PW-8 (Chander Prakash) had turned hostile. He did not support

the version of the prosecution.

23 PW-7 (Bal Kishan) as on oath stated that he had joined the

investigation on 19.4.1996. Accused persons had taken the police party

to the Gudier Park, near Transit Camp, Raghubir Nagar from where a

skull of a human being along with few clothes and a pair of hawai

chappal were recovered in their presence and the same had been taken

into possession vide memo Ex. PW-7/A. He denied the suggestion that

he was not a witness to the recovery.

24 PW-19 and PW-20 were both parties to this recovery; neither of

them have spoken of the presence of PW-7; however, memo

Ex. PW-7/A has been admittedly prepared at the instance of PW-7.

PW-19 admitted that the gutter from where the skull was recovered is an

open place; it was frequented by people; the water was not following in

the gutter; public witnesses had been asked to join the recovery but only

Chander Prakash (PW-8) had agreed to join. His testimony is

conspicuously silent on PW-7 having joined the recovery.

25 PW-20 in his cross-examination admitted that the depth of the

sewer from where the potali containing the skull was recovered was

about 2- 2½ feet deep; it was a dry sewer which was a common fare and

people were passing by.

26 Recovery from an open and accessible place and that too 4

months after the alleged death of the victim again throws doubt on this

recovery.

27 In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra

AIR 2008 SC 1184 a recovery of the clothes and the weapon (a blade)

from an open place, accessible to the public was disbelieved. The Apex

Court in this Context had held:

"It has not been explained as to why the appellant gave information in piecemeal on three dates i.e. 3.10.1994, 5.10.1994 and 6.10.1994. Room No.45 of 'Ganesh Bhuvan' from which the clothes are said to have been recovered was found to be unlocked premises which could be accessed by any one. The prosecution could not explain as to how the room allegedly belonging to the appellant could be without any lock. The absence of any habitation in the room also cast serious doubt on the genuineness and bonafides of recovery of clothes. The recovery of half blade from the road side beneath the wooden board in front of 'Ganesh Bhuvan' is also not convincing. Undisputedly, the place from which half blade is said to have been recovered is an open place and everybody had access to the site from where the blade is said to have been recovered. It is, therefore, difficult to believe the prosecution theory regarding recovery of the half blade. The credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the Chemical Examiner's Report the blood stains found on the shirt, pant and half blade were those of human blood, the same could not be linked with the blood of the deceased. Unfortunately, the learned Additional Sessions Judge and High Court overlooked this serious lacuna in the prosecution story and concluded that the present of human blood stains on the cloths of the accused and half blade were sufficient to link him with the murder."

28 The recovery of the skull in the present case is thus wholly

unreliable.

29 Accused persons have been specifically charged for having

committed the murder of Jageshwar. As noted supra, this is a case of

circumstantial evidence. Besides a charge under Section 302/24 IPC

charges under Section 201 of the IPC and Section 27 of the Arm Act had

also been framed against the accused. The order on charge dated

03.4.1997 specifically recites so.

30 It was incumbent upon the prosecution to establish that the

murdered victim was none other than Jageshwar. This has, however,

not been proved. On 29.12.1995 a headless body of a human male had

been recovered; it was cremated unidentified. The clothes worn by the

victim i.e. his baniyan, underwear and the muffler lying near the dead

body had been preserved. Four months later i.e. on 19.4.1996 a head of

a male person had been recovered. This court has already disbelieved

the recovery of the head. Recovery stood demolished in view of the

version of PW-18 which was in total contrast and in conflict with the

versions of PW-19 and PW-120.

31 There are other reasons also for holding the recovery to be

planted. Ex.PW-16/A was the first post mortem which was conducted

on the headless body. This report had opined the victim to be slender

built, 5 feet tall and 30 years old having a dark complexion. His neck

was severed from his body. This was cut at the point of 4th vertebra.

On 22.4.1996, the human skull recovered from the gutter purported to be

of the deceased had been subjected to a post mortem. Photographs of

the skull had also been taken. Before adverting to the post mortem

report, the photographs Ex.PW-19/N, Ex.PW-1/O, Ex.PW-19/P and

Ex.PW-1/Q have been perused. These were the positives. The

negatives could not be retained. A perusal of these photographs show

that it is a human skull which had been recovered. There was no flesh

or skin on it. This has also been opined by PW-16, the post mortem

doctor. These photographs show that this skull having no skin on it, the

features on its face were absolutely undecipherable.

32 In this scenario how PW-18 the brother of the victim could have

identified the skull as the head of his deceased brother Jageswar has not

been answered. Scrutiny of these photographs in fact show that it was

impossible to have detected or noted the features in the face which could

connect this skull as the face of Jageshwar.

33 The post mortem report of the skull recites that it was a male skull

having six male characteristics. The age of the person to whom the skull

belonged could not be opined so also no other information regarding the

height and the weight of the victim. In fact no opinion on the cause of

death could be given. The only finding in favour of the prosecution was

that the neck was cut on the 4th vertebra on the posterior surface and the

level of the separation of the skull was found corresponding with the

level of the headless body recovered earlier on 29.12.1995. This has

been stated by the post mortem doctor (PW-16).

34 Admittedly, the headless dead body had been cremated. The

body was not before the doctor at the time when he gave the opinion that

the level of the separation of the skull corresponded with the headless

body recovered earlier. Even in his report Ex. PW-16/B no further

information to this effect is forthcoming. The doctor even could not

opine about the age of the victim. There was no skin or tissues visible

on the head. Only the skull bones were intact.

35 What could have established the connectivity between this

headless body and the skull was either a DNA test i.e. the DNA of the

tissues of the headless body and the skull which could have been

performed either from the extraction of the bone of the headless body

and the skull or through the skin of the body and the head. In his cross-

examination PW-16 admitted that no bone of the body had been

preserved. Bone of the skull alone was preserved. There was no bone of

the headless body which could be used to match the two bones. The

skin had been preserved but since there was no skin available on the

skull (at the time of its recovery) no such matching could be done.

DNA profiling was also not done.

36 Learned public prosecutor on this count submits that DNA was

not a very popular method used by the investigating agencies in the year

1995 when this crime was committed. The super imposition of the

photograph of the victim was a method being deployed by the

investigating agencies to draw a conclusion whether the headless body

and the head matched or not; but in this case in the absence of the

photograph of the victim this method could not be used.

37 This is not a correct statement; in several cases including the

murder case against Shibu Shoren (which was of the year 1994) the

investigating agency had used the DNA profiling method. The second

submission of the learned public prosecutor is also completely off the

record. Not a single witness had stated that any effort was made to

obtain the photograph of the victim; there is no investigation qua this

aspect.

38 That apart in the absence of any other evidence to connect the

head with the body; the body having been cremated four months ago and

the doctor opining only on the examination of the skull and there being

no further details; not even the details about the age or the possible

height of the person to whom this skull belonged as also the skull being

completely devoid of skin or flesh and except for the sockets which

represented the eyes and other gaping holes which would probably be

the nostrils and the jaw, it would have been impossible for PW-18 to

have identified or recognized this skull as the head of his deceased

brother.

39 These are the additional factors which compound the ;belief of

this Court that the recovery is false and planted.

40 This recovery was in fact the most crucial piece of evidence that

the prosecution had projected against the accused persons. We, however,

feel it wholly unsafe to rely upon this piece of evidence. Identity of the

skull being unreliable; the prosecution has failed to bring home the

charge that it was Jageshwar who had been killed.

41 Admittedly the cause of death has also not been opined. Both the

post mortem reports i.e. of the body as also of the skull are silent on the

cause of death of the victim. The question whether the death was

homicidal has also not been fully answered.

42 In the case of Bhajan Singh (supra) where the cause of death of

the dead body could not be opined because of the decomposition of the

body, the Apex Court has noted as under:

"13. The learned Sessions Judge in the course of his judgment has observed that the doctor who performed post mortem examination was careless inasmuch as he failed to send the two dead bodies to the Professor of Anatomy who might have been in a position to express opinion after examining the hyoid bone and cervical vertebra as to whether the death of the two deceased persons was due to strangulation. Although it may be that it would have been more appropriate on the part of the doctor to have sent the dead bodies to an anatomy expert, the fact that the doctor did not do so cannot be a ground for drawing an inference adverse to the accused. The accused cannot be made to suffer because of that omission of the doctor. It would indeed be contrary to all accepted principles to give the benefit of that omission to the prosecution. The onus in a criminal trial is upon the prosecution to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution would be entitled to get the benefit of that."

43 Benefit of doubt on this count also accrues to the accused.

44 The CFSL vide its report dated 15.4.1998 Ex.PW-19/V had

opined blood group A on the blood stained earth, muffler and baniyan

which had been recovered on 29.12.1995 from the headless dead body.

The sweater and the shawl identified by PW-18 as belonging to his

victim brother and his sister respectively also contained a human blood

of A group. As noted supra both the sweater and the shawl had been

shown to PW-18 in the police station on 18.4.1996. The recovery of the

sweater and the shawl on 19.4.1996 was thus belied. This piece of

evidence also does advance the version of the prosecution.

45 The recovery of the dagger at the behest of the accused Ram

Gulam from the parchhatti of the House No.157, four months later also