Pawan vs State
2013 Latest Caselaw 42 Del

         THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 04.01.2013

+       CRL. A. 144/2010

LAXMAN @ JANGA                                                 ... Appellant
                                          versus

STATE                                                          ... Respondent
Advocates who appeared in this case:
For the Appellant                : Mr Siddharth Aggarwal
For the Respondent /State        : Mr Sanjay Lao

                                           AND
+       CRL. A. 850/2010

PAWAN                                                          ... Appellant

                                          versus

STATE                                                          ... Respondent
Advocates who appeared in this case:
For the Appellant                : Ms Charu Verma
For the Respondent /State        : Mr Sanjay Lao

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL

                                      JUDGMENT

BADAR DURREZ AHMED, J

1. These appeals are directed against the judgment dated 30.11.2009 in

Sessions Case No. 36/2009 delivered by the learned Additional Sessions

Judge-I, North-East, Karkardooma Courts, Delhi, whereby the appellants

Pawan and Laxman have been convicted for the offence punishable under

Section 302/34 IPC and they have also been convicted for the offence

punishable under Section 363/34 IPC. The said case arose out of FIR

391/2003 registered at Police Station Bhajan Pura under Sections

363/364/302/34 IPC. Upon conviction of the said appellants, the learned

Additional Sessions Judge passed an order on sentence on 05.12.2009,

whereby the appellants Pawan and Laxman were sentenced to rigorous

imprisonment for life for the offence punishable under Section 302 read

with Section 34 IPC for having committed the murder of the deceased

Brijesh. A fine of ` 2,000/- each was also imposed on the said appellants

and in default of payment of the said fine, they were to undergo rigorous

imprisonment for one year. Insofar as the offence under Section 363/34

IPC was concerned, the learned Additional Sessions Judge sentenced the

appellants to undergo rigorous imprisonment for seven years. A fine of `

1,000/- each was also imposed on them and in default of payment of the

fine, they were to undergo rigorous imprisonment for six months. The

sentences were directed to run concurrently in respect of both the convicted

persons.

2. Initially, there were three accused in this case and they were Laxman

@ Janga and Pawan (the present appellants) and one Praveen. However,

since Praveen was a juvenile, he was dealt with under the Juvenile Justice

(Care and Protection of Children) Act, 2000 and was presented before the

Juvenile Justice Board. In the present appeals, we are only concerned with

Laxman and Pawan.

3. The charge framed against Laxman and Pawan on 27.09.2004 was

that on 03.11.2003 at about 3 pm at MCD School, C-4 Yamuna Vihar,

Delhi, within the jurisdiction of PS Bhajan Pura, the appellants along with

co-accused Praveen (juvenile), in furtherance of their common intention,

kidnapped Brijesh Kumar, a minor child of 12 years out of the keeping of

his lawful guardian without his consent and thereby they had committed an

offence punishable under Section 363/34 IPC. The second charge was that

the said accused had kidnapped the said Brijesh Kumar in order that he

might be murdered and thereby they had committed an offence punishable

under Section 364/34 IPC. The third charge was that on the said date (i.e.,

03.11.2003) at about 7:30 pm in the jungle near Bheem Nagar and near L.

N. Public School, the said accused, in furtherance of their common

intention, committed the murder of the said Brijesh Kumar by causing his

death and thereby committed an offence punishable under Section 302/34

IPC. We have already pointed out that Praveen was to be dealt with under

the Juvenile Justice (Care and Protection of Children) Act, 2000. Insofar as

the present appellants are concerned, they pleaded not guilty to the charges

framed against them and they claimed trial.

4. The sequence of events leading up to the apprehension and arrest of

the appellants begins with the receipt of a phone call on 03.11.2003 at

about 6:03 pm from PW1 Bhagwan Dass, who claimed to be the father of

the said Brijesh Kumar. This call was received at the Police Control Room

vide DD No. 15-A (Exhibit PW3/A). The sum and substance of the phone

call was that his son Brijesh Kumar aged 12 years had been kidnapped by

two persons from his school. By virtue of DD 17-A (Exhibit PW3/B)

recorded at 6:10 pm, Sub-Inspector Manoj Bhatia was sent to investigate.

At about 7 pm, the statement of PW1 Bhagwan Dass (Exhibit PW1/A) was

recorded. In the said statement, PW1 Bhagwan Dass indicated that his son

Brijesh Kumar, who is mentally weak, is a student of class V of C-4,

Yamuna Vihar MCD School. He further stated that at about 12:45 pm, he

left him in his school and returned home. When he was at home, at about

5:40 pm, two classmates Govind and Neeraj came to his house and brought

Brijesh Kumar's school bag with them. They also told him that during

lunch time two men, after having enticed and induced Brijesh Kumar, took

him away on a motorcycle and that he had not returned since then. It is

also recorded in the statement that Brijesh Kumar was wearing a red check

shirt, a sky coloured pant and black shoes. He also described Brijesh as

having a wheatish complexion and of being about 4 feet 2 inches tall. He

also indicated that Brijesh was fat.

5. On the basis of the said statement, a ruqqa was prepared at about

7:15 pm and thereafter the said FIR No. 391/2003 was initially recorded

under Section 363 IPC at Police Station Bhajan Pura.

6. On 04.11.2003, a body was discovered by the U.P Police at Jungle

Mohalla, Bheem Nagar, Hapur, U.P at about 2:50 pm. Some photographs

were taken. On 05.11.2003, the post mortem examination of the body

discovered by the U.P police was conducted at Hapur at 3:40 pm. The post

mortem report is Exhibit PW15/A. It indicates that there were ante mortem

injuries on the body, which are as under:-

 Injury No.1 : Ligature mark 35 cm x 1 cm x all round neck horizontal 4 cm below right ear, 5 cm below left ear, 6 cm below chin and 4 cm below occipital protuberance;

 Injury No.2 : Contusion 2 cm x 2 cm on left side of face near ear; and

 Injury No.3: Contusion 4 cm x 2 cm on right side of face near ear.

According to the opinion of PW15 Dr Y. P. Singhal, who conducted the

post mortem examination, the death was due to strangulation as a result of

the above noted injuries. However, it may be pertinent to note that PW15

Dr Y. P. Singhal in his deposition before Court had stated that the body was

of a male aged about 16 years and that the time since death was

approximately 1-1/2 days.

7. On 27.11.2003, the appellants were arrested together. They were

allegedly interrogated and they made disclosure statements.

8. It is further alleged on the part of the prosecution that pursuant to the

disclosure statements made by the appellants, certain recoveries were made

on the next day, that is, on 28.11.2003. It is alleged that recovery of an

angocha was made at the instance of Laxman from Hapur. Similarly, the

recovery of a shirt, pant and belt were also said to have been made at the

instance of the appellant Pawan. It is also alleged that recoveries had been

made at the instance of the juvenile Praveen and those recoveries

comprised of socks and shoes from Hapur. It is further the case of the

prosecution that on 28.11.2003, PW1 Bhagwan Dass identified the dead

body that was discovered at Hapur, through photographs and in respect of

which the post mortem examination had been conducted inasmuch as the

dead body had already been cremated by Hapur police. This is the

sequence of events alleged by the prosecution.

9. The case is based on circumstantial evidence. The prosecution

examined as many as 15 witnesses. The statements under Section 313

Cr.P.C of the appellants were recorded, who did not produce any defence

witness.

10. The entire case rests on the allegation of the prosecution that the

deceased Brijesh Kumar was last seen alive in the company of the

appellants. In order to substantiate this allegation, the prosecution had

produced three witnesses. The witnesses being PW4, Govind and PW5

Neeraj, who were the classmates of the deceased Brijesh Kumar and who

had apparently seen Brijesh Kumar being enticed and induced to leave with

two individuals during lunch time from the school on a motorcycle. The

third witness is PW6 Uma Shanker, who is also related to the deceased

Brijesh Kumar. Uma Shanker is said to have seen Brijesh Kumar in the

company of the appellants at Loni Chowk in the evening of 03.11.2003.

Apart from this, the prosecution also seeks to bring home the case against

the appellants on the basis of the purported disclosure statements made by

the appellants which led to the aforementioned recoveries. It is clear that it

is only these two circumstances, that is, the 'last seen' evidence and

recoveries which have been set up by the prosecution to establish the case

against the appellants. It may be made clear at this juncture itself that no

motive has been alleged or established.

11. Based upon the evidence led by the prosecution, the learned

Additional Sessions Judge convicted and sentenced the appellants, as

indicated above. The learned counsel appearing on behalf of Laxman @

Janga submitted that PW4 Govind, who was a classmate of Brijesh, stated

that he saw two persons taking Brijesh from the school. The said witness

also stated that the class teacher had asked them to take the school bag of

Brijesh. However, he stated that he did not know as to how those persons

had taken Brijesh with them. He stated that after lunch, all the students

attended class, but Brijesh was absent. It is then that the class teacher had

asked them to take the school bag of Brijesh. It was also stated by this

witness that one Neeraj (PW5) was also his classmate and the two of them

took the school bag of Brijesh to his house and gave it to his parents. It is

further stated that on the next day, Brijesh's father along with the police

came to his house and asked him if he had seen the faces of the persons

who had taken Brijesh from school. He stated that he replied in the

negative. He also stated that he had never seen the persons who took

Brijesh after the date of the incident. He also stated that he could not

identify those persons who took Brijesh even if they were shown to him as

he had not seen them by their faces on the day of the incident. In other

words, this witness did not identify the appellants and was declared hostile

and was subsequently cross-examined by the prosecution. The learned

counsel for the appellant sought to bring out a contradiction between the

testimony of PW4 Govind and PW1 Bhagwan Dass by drawing our

attention to the statement made by PW4 Govind in his cross-examination

that he had reached the house of Brijesh at about 6:30 pm and remained

there for about 5 minutes. He submitted that this is contradicted by the fact

that the call to the PCR, which was recorded vide DD No. 15-A, had

already been registered at 6:03 pm.

12. It was next contended by the learned counsel for the appellant

Laxman that PW5 Neeraj also stated his inability to identify the persons

who had taken away Brijesh from school. Consequently, he, too, was

declared hostile and was cross-examined by the learned APP. Our attention

was drawn to a suggestion made by the prosecution that one of the accused

was present in Court today and the attention of the witness was drawn

towards the accused Pawan. The learned counsel for Laxman submitted

that from this suggestion itself, it becomes clear that even, as per the

prosecution, Laxman was not involved in the alleged kidnapping from the

school, because if that had been the case, the witness's attention would

have also been directed towards Laxman. But, the prosecution chose to

only draw the attention of the witness PW5 Neeraj to Pawan. Thus,

according to the learned counsel for the appellant Laxman, as per the

prosecution, the suggestion is that the two persons, who allegedly

kidnapped Brijesh from school, were Praveen and Pawan and not Laxman.

13. The learned counsel for the appellant Laxman then drew our

attention to the testimony of PW1 Bhagwan Dass, who is alleged to be the

father of the deceased Brijesh Kumar. This witness stated that Brijesh was

aged about 12 years at the time of occurrence and that he was mentally

weak. He also stated that Govind and Neeraj came to his house at 5:40 pm.

He also stated that the height of the boy (Brijesh) was 4 feet 2 inches. At

this juncture, the learned counsel for the appellant drew our attention to the

post mortem examination report as also the testimony of PW15 Dr Y. P.

Singhal, where the height of the body was recorded as 150 centimeters,

which translates to 4 feet 11 inches and not 4 feet 2 inches, as suggested by

PW1 Bhagwan Dass. Furthermore, the learned counsel also drew our

attention to the testimony of PW15 Dr Y. P. Singhal, where he noted that

the body, whose post mortem examination he had conducted, also had a

moustache of 0.25 centimeters and was back in colour. The suggestion

made by the learned counsel for the appellant was that the body which was

examined was not that of the deceased Brijesh Kumar.

14. In his cross-examination, PW1 Bhagwan Dass admitted that Brijesh

was not his son but, was the son of his brother-in-law and was living with

him, though he had not legally adopted him.

15. The next witness whose testimony was brought to our notice was

PW6 Uma Shanker. According to the prosecution, he is a key witness

inasmuch as he is the one who last saw the deceased Brijesh Kumar alive in

the company of the appellants and Praveen. This witness stated that on

03.11.2003 at about 5 pm, he was going to Noida from his house on his

two- wheeler scooter and when he reached Loni Chowk Circle, he saw his

brother-in-law standing along with three local boys, namely, Praveen,

Pawan and Laxman. One motorcycle bearing registration No. 2217 of

Pulsar make was also stationed near Brijesh and the three boys. The

witness is said to have identified Pawan and Laxman as the accused persons

present in Court. He further stated that he called out to Brijesh as to why

he was standing there. But, there was no response from him. It is further

stated by him in his examination-in-chief that, in the meantime, Praveen

started the motorcycle and Laxman made Brijesh sit on the pillion rider seat

and thereafter he also sat on the said motorcycle, which went towards

Ghaziabad. He further stated that Pawan went away on foot and he (PW6

Uma Shanker) went towards Noida. He further stated that on the same day,

at about 9 pm, after returning from Noida, he came to know that Brijesh

was missing. So, he went to his house and he saw police officials and other

people gathered there. According to him, he told the police about the above

incident and that police had recorded his statement. With the permission of

the court, a leading question was put to him with regard to the complete

registration number of the motorcycle as being DL 5SS-2217. He replied

in the affirmative. In his cross-examination by the defence counsel, Uma

Shanker stated that the accused persons were standing at a distance of 20-

25 steps from Loni Chowk. He also stated that the accused along with

Brijesh left immediately after he had called Brijesh on seeing him. He then

stayed at a cigarette shop for near about 15-20 minutes. He stated that the

accused had not seen him and that he could not tell the exact number of

vehicles parked there. This last question was apparently put to the witness

in order to create a doubt with regard to his remembering the number of the

motorcycle which was allegedly used by the accused. It is further pointed

out in cross-examination that Uma Shanker had a mobile phone, but did not

inform Bhagwan Dass about the manner in which Brijesh had been taken

away by the accused persons. According to the said witness, this was

normal for him.

16. The learned counsel for the appellant Laxman also sought to draw

our attention to certain contradictions between the testimonies of PW7

Head Constable Jag Roshan and PW1 Bhagwan Dass. According to PW7

Head Constable Jag Roshan, the three accused were interrogated, but PW1

Bhagwan Dass stated that they were not interrogated. PW7 Head Constable

Jag Roshan stated that the three accused were arrested on the pointing out

of Bhagwan Dass, but PW1 Bhagwan Dass stated that it was on the

pointing out of a secret informer that they were arrested. The testimony of

PW13 Constable Praveen Kumar was also alluded to, who stated that the

angocha was recovered from the fields and had burn marks on the corners

and was approximately 9 inches x 4 inches. According to the learned

counsel for the appellant, this was a different angocha to that described by

PW1 Bhagwan Dass. Furthermore, PW15 Dr Y. P. Singhal had stated that

the ligature mark was of 35 cms x 1 cm x all around the neck, which would

mean that the length of the ligature mark was 13 inches, whereas the

angocha was only 9 inches long. Therefore, according to the learned

counsel for the appellant, the angocha was certainly not the murder weapon

and was, therefore, of no consequence. He also stated that the angocha was

not shown to the doctor at all for his opinion as to whether the ligature

mark was possible by the angocha or not.

17. The testimonies of PW12 Inspector Vir Singh Tyagi and of PW14

Sub-Inspector Manoj were also referred to. It was contended by the learned

counsel appearing on behalf of the appellant Laxman that, first of all, there

was no motive and, therefore, no enmity between the appellant Laxman and

the deceased Brijesh Kumar. There was, therefore, no reason to kill. With

regard to the so-called last seen evidence furnished on the part of the

prosecution, the learned counsel submitted that insofar as Laxman is

concerned, even as per the prosecution case, as indicated by the suggestions

given to PW5 Neeraj, Laxman was not part of the so-called kidnapping

from the school. As regards the testimony of PW6 Uma Shanker, he is

alleged to have seen Brijesh in the company of Laxman and Pawan at 5 pm

at Loni Chowk on 03.11.2003. However, the body was found at Hapur at

2:50 pm on 04.11.2003, that is, 22 hours later. Even if we go by the post

mortem report which gave the time since death as being 1-1/2 days, the

point of time when the death occurred would be 3-4 am on 04.11.2003.

This point of time was also 11 hours away from the point of time when

PW6 Uma Shanker is alleged to have seen Brijesh Kumar in the company

of the appellants. Therefore, according to the learned counsel for the

appellant Laxman, the last seen evidence, as presented on behalf of the

prosecution, apart from being a very weak kind of evidence, cannot be

relied upon at all as the point of time between the last sighting and the

occurrence of death are not proximate and there could be a myriad of

intervening circumstances or individuals.

18. He also submitted that the recoveries were not believable at all

inasmuch as the recoveries had been made after the dead body had been

recovered on 04.11.2003. The recoveries were from an open area and,

therefore, could not be foisted on the appellants. The so-called recoveries

were also made after about 24 days from the date the body was found.

19. Consequently, the learned counsel for the appellant Laxman

submitted that the impugned order of conviction and sentence ought to be

set aside and the appellant Laxman ought to be acquitted.

20. The learned counsel appearing on behalf of the appellant Pawan

reiterated the general submissions made by the learned counsel for the

appellant Laxman and also emphasized that the 'last seen' evidence was

based on the foundation of three prosecution witnesses, namely, PW4

Govind, PW5 Neeraj and PW6 Uma Shanker. PWs 4 and 5 stated that they

could not identify the persons who took Brijesh from the school. As such,

their testimonies, do not, in any way, implicate the appellants. As regards

PW6 Uma Shanker, the learned counsel stated that insofar as Pawan is

concerned, Uma Shanker cannot be even regarded as the last seen witness

inasmuch as the said witness stated that Laxman, Brijesh and Praveen went

on the motorcycle, whereas Pawan went away on foot. Therefore, Pawan,

even as per this witness, had parted ways with Laxman, Brijesh and

Praveen.

21. Thus, insofar as Pawan is concerned, the factum of his having been

last seen with Brijesh ends here.

22. The learned counsel further submitted that the recoveries are also

highly doubtful. He submitted that the recoveries were made after 23 days

of the discovery of the dead body and the articles, such as, the shirt, pant

and belt, which are alleged to have been recovered at the instance of the

appellant Pawan, were lying on properties which were open and accessible

to all. He submitted that even the first witness Ramagya Chaubey, who

was the guard of ARA factory, was not examined by the prosecution. A

reference was made to the decision in the case of Trimbak v. State of

Madhya Pradesh: AIR 1954 SC 39 to state that recovery from an open and

accessible place was of no consequence to the prosecution.

23. It was, therefore, contended by the learned counsel for the appellant

Pawan that the chain of circumstances, which was required to be

established by the prosecution, has not been established. The chain of

circumstances leading unerringly to the guilt of the appellant, was missing.

Consequently, he submitted that the impugned order of conviction and

sentence be set aside.

24. The learned counsel for the State submitted that PW6 Uma Shanker

had seen the deceased Brijesh Kumar in the company of the three accused,

which included the present appellants, in the evening of 03.05.2003. He

then referred to the testimony of PW14 SI Manoj Bhatia which, according

to him, indicated that the statement of Uma Shanker was recorded on

03.11.2003 itself and thereafter the premises of the accused persons were

raided, but they were not traceable. Their native places were also searched

and there, too, they were not traceable. It is only on receipt of secret

information on 27.11.2003 that the appellants were arrested at Loni Gol

Chakkar (round-about). Subsequently, disclosure statements were recorded

and it is then that the police party went to Hapur. The learned counsel for

the State submitted that the disclosure statement of Laxman (Exhibit

PW1/J) ought to be relied upon, where he had allegedly stated that "maine

apne saafe se uska gala ghot diya" ("I strangulated him with my saafa.").

According to the learned counsel for the State, the portion where it is stated

that the was strangulated with a saafa, was admissible because it was not in

the knowledge of the Investigating Officer and it only got corroborated by

the post mortem report which came to the knowledge of the Delhi Police

much later. He further stated that Pawan's disclosure that he could get the

pant and shirt recovered was also admissible since he did get the pant and

shirt recovered.

25. The learned counsel for the State, therefore, submitted that the

prosecution's case stood established on the basis of the last seen testimony

of PW6 Uma Shanker; the conduct of the appellants inasmuch as they went

missing from the very first day consequent upon the recording of the

statement of PW6 Uma Shanker on 03.11.2003; the police at Bhajan Pura

did not know that Brijesh had been killed till 27.11.2003; thereafter, the

police had gone to the spot at Hapur to recover the body and clothes and

angocha; whereas the clothes and angocha were recovered the body was

not there; thereafter, the police went to the police station at Hapur where

the photo of the person whose body had been discovered on 04.11.2003

was shown and the same was identified by PW1 Bhagwan Dass as being

that of Brijesh Kumar. Thus, according to the learned counsel for the State,

all the circumstances stand established and these circumstances taken

together complete the chain and, therefore, the prosecution, according to

him, has established its case beyond reasonable doubt. Consequently, he

submitted that the impugned judgment and order on sentence ought not to

be interfered with.

26. In rejoinder, the learned counsel for the appellants cited several

decisions on the point of how much of a disclosure statement was

admissible. The judgments were as under:-

        (i)      Sukhan v. Emperor: AIR 1929 Lah 344 (FB);

        (ii)     Pulukuri Kottaya v. Emperor: AIR 1947 Privy Council 67;

        (iii)    State v. Mohd. Afzal: (2003) 107 DLT 385 (DB); and

        (iv)     State v. Navjot Sandhu: 2005 (11) SCC 600.

27. We need not refer to all the decisions cited by the learned counsel. It

would be sufficient to refer to the decision in the case of Pulukuri Kottaya

(supra), which is being followed till date. In the said decision, the Privy

Council has observed as under:

"8. The second question, which involves the construction of s. 27, Evidence Act, will now be considered. That section and the two preceding sections, with which it must be read, are in these terms:

"25. No confession made to a Polio officer, shall be proved as against a person accused of any offence.

26. No confession made by any person whilst he is in the custody of a Police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."

9. The explanation to the section is not relevant.

"27. Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a Police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby

discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S. 26, added by S. 27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate-distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I

will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."

(underlining added)

28. Therefore, it was contended by the learned counsel for the appellants

that only that part of the disclosure statement which led to the recovery of

the articles would be admissible and not any other part. Secondly, it was

submitted that in any case, the recoveries by themselves would not mean

anything unless and until the recoveries were linked with the offence.

According to the learned counsel for the appellants, that link is missing.

29. Having analyzed the submissions of the learned counsel on both

sides and having gone through the evidence in detail, we feel that the

testimonies of three witnesses are of vital importance - they being PW4

Govind, PW5 Neeraj and PW6 Uma Shanker. Insofar as PW4 Govind and

PW5 Neeraj are concerned, they are the classmates of the deceased Brijesh

Kumar. While they have stated that Brijesh Kumar was taken away by two

persons during lunch from the school, these witnesses have also stated that

they would not be able to identify those two persons inasmuch as they did

not see their faces. The testimonies of PW4 and PW5, therefore, only

establish that Brijesh Kumar was taken by two persons from the school

during lunch time. Their testimonies also establish that they carried the

school bag of Brijesh Kumar on the asking of their class teacher to the

home of Brijesh Kumar, where they handed over the same to his father

PW1 Bhagwan Dass. Insofar as PW1 Bhagwan Dass is concerned, his

testimony is relevant for the purpose that these two boys, namely, PW4

Govind and PW5 Neeraj had brought the school bag and had informed him

that Birjesh Kumar had been taken away by two persons during lunch from

school and that he was not at school thereafter. Therefore, the evidence of

PW4 Govind and PW5 Neeraj cannot be regarded as the last seen evidence

because they were unable to identify the persons with whom Brijesh Kumar

left the school premises.

30. Insofar as PW6 Uma Shanker is concerned, he states that he had seen

Brijesh Kumar in the company of the two appellants and Praveen at Loni

Chowk at about 5 pm on 03.11.2003. Yet, what is strange is that despite

the fact that he states that he had called out to Brijesh and Brijesh had not

responded, he did not find this odd at all and it is for this reason that,

according to him, he did not make a phone call to Brijesh's father even

though he had a mobile phone. This does dent the credibility of the witness

inasmuch as his conduct is somewhat unnatural. This is so because PW6

Uma Shanker is a relative of Brijesh Kumar and even though he called out

at Brijesh Kumar, who did not respond and he allegedly left with the

appellants and Praveen, he did not think it fit to even inform Brijesh's

father Bhagwan Dass about this incident. It must be remembered that at

5 O' clock in the evening in November in Delhi, the sun begins to set and it

is not as if the child was in the company of these persons who were much

older than him in the day-time in a location where he would normally have

been in their company. Yet, PW6 Uma Shanker did not find this situation

to be anything out of the normal. Coupled with this is the fact that,

according to Bhagwan Dass, Brijesh was a twelve-year old boy and was

mentally weak. Surely, PW6 Uma Shanker, who was a close relative of the

boy ought to have found it odd that the boy was going off on a motorcycle

with two other boys at around the time of sunset.

31. Apart from this, Uma Shanker has stated that Laxman, Praveen and

Brijesh went on the motorcycle towards Ghaziabad and Pawan went on

foot. It is obvious that the sequence of events connecting Pawan with the

murder of Brijesh Kumar comes to an end here itself. Therefore, even

according to this witness, Pawan's role came to an end at this point, that is,

at Loni Chowk at 5 pm on 03.11.2003. There is no other evidence other

than the so-called recovery with which we shall deal with presently to

connect the appellant Pawan with the kidnapping and murder of Brijesh

Kumar.

32. Taking the sequence further, even if Uma Shanker is to be believed

that he did see what he said he saw, the fact of the matter is that he saw

Brijesh leaving in the company of Laxman and Praveen on a motorcycle at

about 5 pm from Loni Chowk towards Ghaziabad. The body was

discovered at 2:50 pm on 04.11.2003 at Hapur. The time gap between

these two events is about 22 hours. Even if we take the time gap between

PW6 Uma Shanker sighting Brijesh Kumar in the company of the

appellants and the time of death as indicated by PW15 Dr Y. P. Singhal to

be 3-4 am on 04.11.2003, the time gap would be 11 hours. This cannot be

regarded as being proximate in time. And, therefore, in our view, even

PW6 Uma Shanker cannot be considered to be the 'last seen' witness as is

usual in law.

33. In Mohd. Azad @ Samin v. State of West Bengal: (2008) 15 SCC

449, there is a reference to an earlier Supreme Court decision in the case of

State of U.P. v. Satish: (2005) 3 SCC 114, where it has been observed that

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 was so small that the possibility of any person

other than the accused being the author of the crime becomes impossible.

And, even in such cases, as pointed out by the Supreme Court in Ramreddy

Rajesh Khanna Reddy and Anr. v. State of Andhra Pradesh: (2006) 10

SCC 172, the courts should look for some corroboration. In the present

case, the time gap is quite large and we cannot rule out the possibility of

any person other than the appellants being the authors of the crime.

Therefore, in our view, the last seen theory setup by the prosecution is not

established at all.

34. It must also be pointed out that while cross-examining PW5 Neeraj,

who had turned hostile, the learned APP had suggested that the two persons

who had taken Brijesh Kumar from the school were Pawan and Praveen. In

other words, they had ruled out Laxman at that point of time. It is also

interesting to note that in conjunction with the aforesaid, PW6 Uma

Shanker's statement that Pawan had left on foot from Loni Chowk,

disengaged Pawan from the next sequence. Therefore, while Laxman was

absent in the alleged initial kidnapping, Pawan was absent in the events

subsequent to the sighting at Loni Chowk.

35. We now come to the question of absence of motive. The prosecution

has neither alleged and obviously has, therefore, not led any evidence to

establish any motive. The absence of a motive in a case depending on

circumstantial evidence is a factor which weighs in favour of the accused.

This proposition is set out in the Supreme Court decision in State of U.P v.

Kishanpal: (2008) 16 SCC 73 where it is held that motive assumes great

importance in a case of circumstantial evidence and the absence of motive

would definitely inure to the benefit of the accused. In the present case, no

motive behind the alleged crime has been set up and consequently this is

also a circumstance which would weigh in favour of the appellants.

36. We now come to the issue of recoveries. The recovery of the

angocha at the alleged instance of Laxman and the recoveries of the shirt,

pant and belt at the instance of Pawan from Hapur are in question. These

recoveries were made from an open and accessible area. These recoveries

were made allegedly on 28.11.2003, that is, 25 days after the incident. In

Trimbak v. State of Madhya Pradesh (supra), the Supreme Court observed

as under:-

"6. When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles."

In the present case, we may also point out that the body had been

discovered from the vicinity of where these alleged recoveries had been

effected on 04.11.2003 itself. Therefore, there is a serious doubt as to

whether these articles were not also recovered on the very same day. It can

be safely presumed that when an unidentified body is recovered by the

police, some sort of search is done around the area for any clues.

Therefore, it could be quite probable that these very articles had also been

found if not on the person or near the body but somewhere around the area

where the body was discovered. It is also probable that the discovery of the

dead body was known to the Delhi Police prior to the alleged recovery of

the articles. Therefore, there is a serious doubt with regard to the

recoveries themselves.

37. We may also point out that, according to the prosecution, it is the

angocha which was used to strangulate Brijesh Kumar, that angocha, as we

have already mentioned above, was 9 inches by 4 inches in dimension,

whereas the ligature mark is of 13 inches all around the neck. We fail to

see as to how an angocha which was 9 inches could have caused a ligature

mark of 13 inches around the neck of the deceased Brijesh Kumar.

Therefore, the angocha can certainly not be linked with the murder of

Brijesh Kumar.

38. There is another aspect of the matter which has troubled us and that

is with regard to the identification of the dead body. The body is said to

have been identified by PW1 through a photograph shown to him. But,

PW1's description of his son Brijesh Kumar is that he was 4 feet and 2

inches in height, whereas the post mortem examination conducted by PW15

Dr. Y. P. Singhal indicates that the height of the body was 150 cms or 4

feet 11 inches. There is a big difference between somebody who is 4 feet 2

inches tall and somebody who is 4 feet 11 inches tall. Apart from this, the

post mortem report indicates that the age of the person whom the doctor

had examined was about 16 years, whereas the age given by PW1 Bhagwan

Dass of his son Brijesh Kumar was only 12 years. We also find that the

person whose post mortem examination was conducted had a moustache.

This is unlikely for a boy of 12 years age. Therefore, there is some element

of doubt even with regard to the identity of the dead body.

39. Even if we held that the recoveries were genuine and free from

doubt, recoveries by themselves cannot form the basis of conviction. This

is a well settled principle. The recovery of incriminating articles has to be

considered in the light of other relevant circumstances as well as the

sequence of events suggesting a link between the accused and the crime. In

the present case, since the last seen theory has broken down, the recoveries

by themselves, even if taken to be genuine, cannot result in the conviction

of the appellants.

40. For all these reasons, we are of the view that the prosecution has not

been able to establish its case against the appellants beyond reasonable

doubt. Therefore, the benefit must go to the appellants. The impugned

judgment and order on sentence are set aside and the appellants are

acquitted of all charges. The appellants are liable to be set free forthwith.

It is so directed.

The appeals are allowed. There shall be no order as to costs.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J JANUARY 04, 2013 SR