Delhi High Court

Khalid vs State on 14 May, 2015

Author: Ashutoshkumar

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRL.A.730/2012

                               Reserved on: 10.04.2015
%                              Date of decision: 14.5.2015

         KHALID                               ..... Appellant
                    Through:   Mr.Rajender        Chabbra     and
                               Mr.Mrutunjay Tayade, Advocates

                               versus

         STATE                                 ..... Respondent
                    Through:   Ms. Aasha Tiwari, APP.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR

ASHUTOSH KUMAR, J.

1. Appellant Khalid stands convicted by judgment dated

02.03.2012 passed by the Additional Sessions Judge II (North) Delhi

in sessions case no. 62/2011 (FIR No. 423/2008 P.S. Timarpur) for the

offence under section 302/201/392 with the aid of section 34 of the

Indian Penal Code, 1960 ('IPC' for short). By the order of sentence

dated 06.03.2012, the appellant has been directed to suffer

imprisonment for life, fine of Rs. 5000/- and in default of payment of

fine, undergo simple imprisonment of 2 months for the offence under

section 302/34 of the IPC. He has been sentenced to simple

imprisonment for 5 years, fine of Rs.5000/- and in default of payment

of fine to undergo simple imprisonment for 2 months for offence

under Section 201 of the Indian Penal Code. Additionally, the

appellant has been directed to suffer simple imprisonment for 7 years

and a fine of Rs. 5000/- and in default of payment of fine, to undergo

simple imprisonment for two months for the offence under Section

392 of the Indian Penal Code. The sentences have been ordered to run

concurrently.

2. It is relevant here to mention that the appellant was made

accused along with S (name withheld), a juvenile, Pappu and Raja @

Rakesh, who have been declared proclaimed offenders. Only the

appellant was tried for the offence.

3. The prosecution relies upon circumstantial evidence to connect

the appellant with the crime as there was no eye witness to the

occurrence.

4. The circumstances relied against the appellant are that he was

last seen with the deceased; the dead bodies of Tej Ram Saini and

Hans Raj (the two deceased persons) were recovered at the instance of

the appellant; the truck bearing registration number HR 55 B 7572

(which the accused person had robbed) was recovered on the

disclosure of the appellant; the knife, the weapon of offence was

recovered at the instance of the appellant and the homicidal death of

the aforesaid two persons.

5. The principal issue before us is to ascertain whether the

evidence on record and proved is complete in all respects without any

latent wedges for holding the appellant guilty of murder of the

aforesaid Tej Ram Saini and Hans Raj.

6. To trace the brief facts it is necessary to set out as to what

happened in sequence.

7. On 26.8.2008 at about 12-12:30 PM, Head Constable Kirpal

Singh (PW.7), whilst on patrolling duty, noticed foul smell emanating

from somewhere nearby. On inspecting, he found two dead bodies,

wrapped in quilts lying amongst bushes nearby at Majnu Ka Tila,

opposite metro yard near DDA park. He forwarded this information to

Head Constable Rakesh Kumar (PW.6) who was posted as a duty

constable at P.S. Timarpur. PW.6 recorded the said information vide

DD No.17A (Exhibit PW.6/B) at 12:45 PM. The said DD entry was

marked to SI Sahab Singh (PW.13) who reached the spot. Inspector

K.S. Rawat PW.23, (IO) also reached the spot along with Constable

Anil Kumar (PW.11) and other police officials.

8. After reaching the spot, the quilts were removed from the dead

bodies. It was found that the dead bodies were of two adult males.

Rukka (Exhibit PW23/A) was prepared by the IO and was sent

through PW.7 for recording the FIR. Thereafter, FIR bearing No.

423/2008 was registered under Sections 302/201 IPC.

9. Upon examining, words of "Tej Ram Singh" was found tattooed

on the right arm of one of the deceased. The shirt that the deceased

was wearing had the label of Kotputli (a place in Rajasthan). These

clues and evidence as noticed below were the starting points and

became crucial material which has helped the police trace and solve

the case.

10. The mobile crime team was requisitioned. A report was

prepared by the crime team (exhibit PW.12/A). Blood stained earth,

earth control and hair of the deceased persons were lifted. From where

the second dead body was lying, dry blood from footpath was lifted.

The above items were seized vide seizure memo exhibit PW.13/A.

Blood stained quilts, trousers, shirt, gamcha and a piece of dhoti were

also lifted from the spot and seized vide seizure memo exhibit

PW.13/B. One nylon rope was also seized (exhibit PW.13/C). As the

dead bodies could not be identified, they were, sent to Subzi Mandi

Mortuary through constable Anil Kumar, PW.11.

11. On 27.08.2008, police officials including PW.23 (Inspector K.S.

Rawat), PW.13 (SI Sahab Singh) went to Kotputli, Rajasthan, for

investigation as also for ascertaining the identity of the deceased. IO

had taken photographs of the deceased persons who were later

identified by the relatives to be of Tej Ram Saini and Hans Raj. One

Ram Vilas (PW.5) and Sushil Vilas (PW.8) having a transport

business, had also come to Kotputli police station and identified the

deceased Tej Ram Saini and Hans Raj as the driver and helper

respectively of the truck bearing registration no. HR 55 B 7572. The

Statements of the aforesaid witnesses namely Ram Vilas (PW-5) and

Sushil Vilas (PW-8) support and affirm the prosecution case on this

aspect. Having identified the dead bodies, on the basis of further clues,

investigation returned to Delhi to identify and nab the culprits. Before

we dwell on the said aspect, we would like to affirm the identifies

further and refer to the medical opinion on the cause of death.

12. On 28.08.2008, the relatives of the deceased persons came to

Delhi and identified the dead bodies. Dead body of Tej Ram Saini was

identified by Hanuman, younger brother (PW.3) and Nav Ratan, a

cousin (PW.4). The dead body of Hans Raj was identified by Mohan

Lal, Uncle (PW.1) and Munna Lal, Uncle (PW.2).

13. Thereafter, the investigating officer made an application for

conducting the post mortem of the deceased persons. After the post

mortem was conducted the clothes, viscera, blood etc. were seized in

packets and were sent to the malkhana. The dead bodies were

thereafter handed over to the relatives for performing the last rites. On

the same day the police officials went to Sonia Vihar where the

godown of C.P Sharma (PW.9), consignee was located. Statements of

Pramod Pandey (PW.24) and C.P. Sharma (PW.9) were recorded. We

shall be referring to their statements later.

14. PW.22, Dr. Vijay Dhankar, conducted the post mortem on the

body of Tej Ram Saini and found the following injuries:

i. Incised wound 2x0.5cm present over left side of front root of neck.

ii. Incised wound 2x0.5cm present over right side of front root of neck.

iii. Stab wound 1x0.5 cm present over right lateral portion of lower part of neck.

iv. Stab wound 4x1.5 cm present over back of root of neck on the right side.

v. Stab wound 3x1 cm present over back of root of neck on the right side below injury number 4. vi. Stab wound 3x1 cm present over back of root of neck on the right side lateral to injury no.5 vii. Stab wound 3x0.8 cm present over right side of upper part of back of chest.

viii. stab wound 3x1 cm present over right side of upper part of back of chest below and lateral to injury no.7 ix. Stab wound 3x1 cm present over right side of upper part of back of chest below and lateral to injury no.8 x. Stab wound 4x1.5 cm present over right side of upper part of back of chest lateral to injury no.9 xi. Stab wound 2x1 cm present over right side of upper part of back of chest below injury no.9 xii. Stab wound 2x0.6 cm present over right side of upper part of back of chest below injury no.11 xiii. Stab wound 1.5x1.5 cm present over right side of upper part of back of chest below injury no.12 xiv. Abrasion 13x8 cm present over back of right arm xv. Multiple abrasion in a area of 6x3 cm over the right side of back if abdomen

15. In the opinion of PW.22, the death was due to hemorrhage and

shock consequent upon penetrating injury to the neck and chest. All

the injuries were found to be ante mortem and the nature of injuries

No.1 to 13 were such that they could have been caused by one side

sharp edged weapon. Injuries Nos. 14 - 15 were found to have been

caused by blunt force. PW.22 opined that the injury No.1

independently as well as injuries nos. 2 to 13 cumulatively were

sufficient to cause death in the ordinary course of nature. The time

fixed for death was about 3 to 4 days.

16. On the same day, PW.22 conducted the post mortem of Hans

Raj and found the following injuries:

i. An abraded ligature mark was present over the front and sides of neck, 9 cm below the chin in the midline and 6cm from the left and right angles of jaw on either side. The mark was 2-3 cm in width and 16 cm long. Total circumference of neck was 42 cm. The mark was interrupted and horizontally placed at the level of thyroid cartilage.

ii. Abrasion 18x6 cm was present over outer aspect of left hand. On internal examination effusion of blood was present over left parietal region of the head. Left Zygomatic arch was fractured. Effusion of blood was present beneath the ligature mark. left lamina of the thyroid cartilage showed outwards fracture with effusion of blood.

With respect to the injuries on the person of Hans Raj, it was

opined that he died due to asphyxia because of ligature strangulation.

Timing of death of Hans Raj also was opined as about 3 to 4 days

prior to the post mortem report.

17. From the deposition of PW.22 it is further revealed that on

7.10.2008, he had received a request for examining the weapon of

offence and opine regarding the injuries found on the dead bodies. A

blood stained steel knife was received by him and he prepared the

sketch of the same. After examining the knife, PW.22 opined that

injuries nos. 1 to 13 on the body of Tej Ram could have been caused

by the knife which he had examined. A Blood stained nylon rope was

also sent to him for examination and report about the injuries on the

person of Hans Raj. After examining the rope, PW.22 opined that the

ligature strangulation on the body of the deceased Hans Raj could

have been caused by the rope.

18. Thus it is apparent that Tej Ram and Hans Raj died a homicidal

death. Tej Ram Saini was killed by means of a knife, whereas

deceased Hans Raj was throttled to death.

19. As has been noted earlier there is no eye witness to the

occurrence and the prosecution has rested its case on the testimonies

of PW. 24 (Pramod Pandey), PW.9 (C.P. Sharma), PW.5 (Ram Vilas),

PW.8 (Sushil Vilas), PW.10 (Pradeep Kumar), PW.17 (Prashant

Sharma) and PW. 15 (Ram Karan), to establish that the appellant was

last seen with the deceased persons.

20. PW. 24 Pramod Pandey stated before the Court that he was

looking after Jai Mata Enterprises godown. On 24.08.2008, a truck

loaded with stone powder arrived at the godown along with its driver

and helper/cleaner. He deposed that as labour was not available it

being Janamastmi, it was not possible to unload the consignment. PW.

24 came back to the godown at about 5 PM when he found the driver

and cleaner present at the godown. After about half an hour two

workers namely Raja (proclaimed offender) and S (juvenile) came

there. PW. 24 told them to unload the consignment. They suggested

that more workers were needed and could be arranged from the nearby

godowns. At about 8 PM Raja and Sanjeev, referred to above came

back with two labourers namely Khalid (the appellant) and one Pappu,

who were known to PW.24. PW.24 thereafter went to attend

Janamastmi celebrations and returned at 12 midnight. At that time the

driver and the cleaner were present. On enquiry, he was made to

understand that they would leave after unloading the consignment or

in the morning. Thereafter, PW.24 went to his house located nearby.

At about 4:30 AM in the next morning, i.e. on dated 25.08.2008,

PW.24 claims that he had only seen Sanjeev at the godown. The

consignment had been unloaded and the truck driver and the cleaner

were not there. The material was sold by one Prashant (PW.17) and

the consignment had to come from Neem Ka Thana, Rajasthan.

21. C.P. Sharma, (PW.9), owner of the godown, has deposed that

Pramod Pandey (PW. 24) was looking after his godown on the

relevant day. In the intervening night of 23rd and 24th August, 2008, a

truck loaded with mineral powder had come from Neem Ka Thana,

Rajasthan at his godown. He had telephonically informed PW. 24 to

get the material unloaded with the help of workers. He was informed

by PW.24 that only two workers were available and that he had asked

Raja @ Rakesh to arrange for some more persons for unloading the

consignment. Next morning, when he reached the godown, the driver,

cleaner, truck or the workers were not present.

22. Prashant Sharma, (PW. 17) affirmed having placed an order for

consignment of Feldspar powder to be delivered at his godown from

the supplier namely Pradeep Kumar (PW.10) of Neem Ka Thana,

Rajasthan. This consignment was transported by the truck in question

of M/s. Singhal Transport, Kotputli with registration number HR 55

B7572. PW.17 was telephonically informed by the consignee that the

truck had arrived at the godown but the consignment could not be

unloaded at that time because of non-availability of the labour/loaders.

23. Similarly, Ram Vilas (PW.5) and Sushil Vilas (PW.8), father

and son, have deposed that they were in transport business which was

looked after by the son PW.8. The vehicle in question which was sent

with the consignment to Jai Mata godown was registered in the name

of PW.5. The aforesaid witnesses have testified that they had

employed Tej Ram Saini as the driver and Hans Raj as helper in the

said truck and that they had been working with them for about two

years. It was further stated by both the witnesses that on 22.8.2008 the

said truck was loaded with consignment from Neem Ka Thana,

Rajasthan for the delivery to be made at Sonia Vihar, Shahdara, Delhi.

Since the vehicle belonged to PW.5, the driver Tej Ram Saini (one of

the deceased persons) on reaching Delhi on 24.8.2008 in the morning

had called him on telephone at about 8 AM and apprised him that

because of non-availability of labour at the godown, it was not

possible to unload the consignment and the same would be done only

when the labour would be arranged. Thereafter nothing was heard

from the driver and the cleaner. On 27.8.2008, PW.5 received a call

from the police station Kotputli where he reached along with 3-4 of

his relatives and met the police officials from PS Timarpur, Delhi. The

later part of his deposition would be referred to by us later when we

deal with the recovery of the truck in question.

24. Pradeep Kumar (PW.10) confirmed that Prashant Sharma

(PW.17) had asked for the mineral powder.

25. From the deposition of the aforementioned witnesses, it is

apparent that the truck of which the deceased persons were the driver

and the helper/cleaner, was brought to the godown of PW.9 and the

consignment was unloaded at night. The testimonies of PW.24, read in

conjunction with that of PWs. 5, 8, 9, 10, 15, 17 make it very obvious

that the appellant Khalid was at the godown along with others to

unload the consignment and thereafter the deceased persons as well as

the appellant were not seen.

26. Learned counsel appearing for the appellant urged that the

evidence with respect to the appellant being last seen with the

deceased could not be treated as material as there was a large time gap

between the appellants having been seen with the deceased persons

and the approximate time of death. It was argued that the deceased

persons were last seen with the appellant on 24.8.2008 at about 12 in

the midnight whereas the post mortem of the dead bodies, which was

conducted on 28.8.2008 at 11 to 11:30 PM, set the time of death as 3-4

days prior to the post mortem.

27. Such a contention does not have any force as the dead bodies

were kept in Subzi mandi mortuary for nobody came forward from

24.8.2008 till 28.8.2008 for their identification. Subsequently the

bodies were identified. The other contention of the appellant that in

the absence of any documentation with respect to the employment of

PW.24 at the godown, he cannot be believed and be treated as a

reliable witness with respect to his having last seen the appellant with

the deceased, also has no force. It is a matter of common knowledge

that under a private employment such formalities are not adhered to

and executed and it would be too much for PW.24 to have produced

any document suggesting that he was under the employment of PW.9,

the owner of the godown. Oral depositions on these aspects should be

accepted.

28. Thus there is no reason to disbelieve or doubt the aforesaid

witnesses with respect to the vehicle having come to the godown of

PW.9 and the appellant was seen with the deceased persons, the driver

and the cleaner of the truck. The appellant Khalid along with others

(who, it is alleged, are also involved), had unloaded the consignment.

Thereafter, the truck, the driver and cleaner went missing. Two

unidentified dead bodies were recovered on 26.8.2008 and on

27.8.2008 identified it to be of Tej Ram Saini and Hans Raj.

29. We have noticed that the recovery of the dead bodies was

fortuitous. On 26.8.2008, PW.7, on sensing a foul smell, found dead

bodies wrapped in quilts. As has been narrated earlier police officials

reached the spot and some clues with respect to the identity of one of

the deceased persons could be collected. The truck could not be

recovered and was untraceable. The appellant Khalid was absconding.

30. On 29.8.2008, Head Constable Rakesh Kumar, (PW.6) while on

duty along with PW. 23 (Inspector K.S. Rawat) and PW. 13 (SI Sahab

Singh), received secret information as to the whereabouts of the

appellant. The appellant Khalid was apprehended by the police party

and he was taken to the Jai Mata Godown, Sonia Vihar.

31. On the question of recovery of the truck, we would begin with

the statement of the police officers. Head Constable Rakesh Kumar

(PW-6) has deposed that the appellant-Khalid was arrested on 29th

August, 2008 and disclosure statement Exhibit PW-13/F, which was

signed by PW-6 at point 'B' was recorded. He proved the arrest

memo Exhibit PW-13/G-1. On 1st September, 2008, appellant-Khalid

was produced in court and police remand was taken. The truck owner

Ram Vilas (PW-5) had joined them in Tis Hazari Courts and thereafter

the appellant-Khalid took them to an isolated place in Faridabad where

truck No. HR55B 7572 was found parked and seized vide seizure

memo Exhibit PW-5/B, which was signed by PW-6 at point 'C'. In

his cross-examination, PW-6 deposed that the appellant-Khalid was

arrested on 29th August, 2008 between 7 to 8 P.M. The appellant-

Khalid was produced in the court on 30th August, 2008 sometime

during afternoon and was sent to judicial custody. Police remand was

taken on 1st September, 2008. Further, they had gone in a private

vehicle to Faridabad and the police team comprised of Inspector K.S.

Rawat (PW-23) and SI Sahab Singh (PW-13) and the truck owner. No

intimation was given to the local police about the visit to Faridabad.

The truck was found in an isolated place ahead of Faridabad chowk. It

was parked on a kachcha on the left of the main road. Inspector K.S.

Rawat (PW-23) had physically checked the truck and had informed

that he had seen blood stained clothes lying at the top. However, PW-

6 did not remember whether the said clothes were seized. The truck

was towed to the Police Station Timarpur by using a crane.

32. SI Sahab Singh (PW-13) has deposed that on 26th August, 2008,

two unidentified dead bodies were found and that on 27th August,

2008, he along with other police officers had gone to Kotputli,

Rajasthan, with the photographs of the deceased, who were identified

as Tej Ram Singh and Hansraj. One Ram Niwas, owner of the truck

confirmed that they were working in his truck No. HR 55 B 7572 as

driver and helper, respectively. On 28th August, 2008, he again joined

investigation and had taken the relatives of Tej Ram Singh and

Hansraj to the mortuary where the bodies were identified by them and

post-mortem was conducted. The bodies were thereafter handed over

to the relatives. On 29th August, 2008, the appellant-Khalid was

apprehended and arrested vide arrest memo Exhibit PW-13/G-1,

which was signed by PW-13 at point 'A'. Khalid made a disclosure

statement regarding the fact that the truck was abandoned at a distance

of two kilometres in the right side of Faridabad chowk. The appellant-

Khalid was produced before Metropolitan Magistrate on 30th August,

2008 and has been remanded to judicial custody. The application for

police remand had remained pending. On 31 st August, 2008, police

custody of appellant-Khalid was taken for three days but on the said

date the appellant did not cooperate. On 1 st September, 2008, the

appellant-Khalid was taken from the police lock up. Ram Niwas, the

truck owner joined the investigation and the truck was found

abandoned at a distance of about two kilometres from Faridabad

chowk. The truck HR 55 B 7572 was identified by the owner and was

taken into possession vide memo Exhibit PW-25/C. The truck was

brought to the police station Timarpur driven by a private driver. PW-

13 clarified that on 27th August, 2008 from Kotputli they had not made

any telephone call at No. 100, Control Room, Wireless Telegraph,

National Crime Record Bureau, State Crime Record Bureau, Central

Record Bureau and State Transport Authority about the vehicle in

question. He denied the suggestion that they, i.e. the police, were

aware about the whereabouts of the truck in question after they had

come to know about the registration number and the recovery of the

truck is deliberately attributed at the instance of appellant-Khalid.

33. Inspector K.S. Rawat, the Investigating Officer, who has

deposed as PW-23, has encapsulated the visit to Kotputli on 27 th

August, 2008 and how they were able to identify the dead bodies.

Thereafter, on 8th August, 2008, inquest proceedings, post-mortem

was conducted and the dead bodies handed over to the relatives. On

the said date, they had also gone to Sonia Vihar where the truck was

unloaded and inquiries were made from Pramod Pandey (PW-24) and

C.P. Sharma (PW-9). On 29th August, 2008, appellant-Khalid was

arrested and had made a disclosure statement Exhibit PW-13/F, which

was signed by PW-23 at point 'C'. He also proved the arrest memo

Exhibit PW-13/G-1, which records the time of arrest as 7.30 P.M. The

appellant-Khalid was sent to judicial custody till 1st September, 2008.

However, on 1st September, 2008, police custody remand was taken

for three days and the appellant was interrogated when he made a

further disclosure statement Exhibit PW-5/D. Thereupon, the police

team proceeded to Palwal-Faridabad road and the truck HR 55 B 7572

was found by the side of the road ahead of Faridabad chowk. The

same was seized vide seizure memo Exhibit PW-15/C. In his cross-

examination, PW-23 has deposed in some detail what had transpired at

Kotputli on 27th August, 2008 and that on 29th August, 2008 they kept

on looking for the accused, including those, who have not been

arrested. On 30th August, 2008, they had produced appellant-Khalid

in the court. Khalid was sent to judicial custody. On 1st September,

2008 at about 4 to 4.30 P.M. the court granted police custody of the

appellant-Khalid, and thereupon the appellant-Khalid was interrogated

before being taken to Faridabad in a private car. The truck owner

Ram Vilas had met them at 10 P.M. The recovery memo was

prepared at Faridabad. The truck was in a running condition and they

had engaged a private driver to bring the truck to Delhi. The keys of

the truck were in the truck itself and he volunteered that duplicate keys

were with the owner.

34. We have examined the trial court records and we find that the

appellant-Khalid was sent to judicial custody on 30th August, 2008 and

police remand of three days was taken on 1st September, 2008. This

supports the prosecution version and the testimonies of Head

Constable Rakesh Kumar (PW-6), SI Sahab Singh (PW-13), and

Inspector K.S. Rawat (PW-23) that the truck in question was

recovered from Faridabad on 1st September, 2008. This fact is also

duly supported and affirmed by the seizure memo Exhibit PW- 5/B,

which records the date of recovery as 1st September, 2008. The

testimonies also explain the reason why recovery and seizure of the

truck was delayed though the appellant was arrested on 29 th

September, 2008. At this stage, we would like to deal with the

testimony of Ram Vilas (PW-5), the owner of the truck.

35. Ram Vilas (PW-5) in his deposition recorded on 20th May, 2010

has stated that they were called to Police Station Kotputli on 26 th

August, 2008 and officers from Police Station Timarpur were present

and he was shown photographs. They came to Delhi on 26 th August,

2008 and reached at about 11 P.M. On the way to Delhi, they were

informed that one of the offenders had been apprehended. They met

the police team near Ashram Chowk, Delhi and the offender was with

the police team. Thereafter, they went to Faridabad and found one

truck, which was identified by him. The truck was released to PW-5

on superdari after about fifteen days vide Exhibit PW-5/A. He was

cross-examined by the Public Prosecutor. In his cross-examination,

PW-5 accepted that he had visited the Police Station at Kotputli on

27th August, 2008 and photographs of the deceased person were

shown to him for identification by the police from Police Station

Timarpur. He had earlier given the date 26th August, 2008 due to

some confusion. He had kept on coming to Delhi and, therefore, he

did not remember if he had joined the investigation on 1 st September,

2008. He had joined investigation on a few occasions. He could not

remember whether the truck was in fact recovered on 1 st September,

2008, since he did not remember the date. He, however, accepted as

correct that his statement was recorded by the police on recovery of

the truck and he identified the seizure memo marked Exhibit PW-5/B,

which was signed by him at point 'A', and the date mentioned thereon

is 1st September, 2008. Towards the end of his cross-examination by

the public prosecutor, it is apparent that PW-5 again got confused, as

he had deposed that after 26th August, 2008, he had stayed in Delhi as

he was associated with the investigation. When again confronted, PW-

5 reiterated in his cross-examination by the Public Prosecutor that the

date 26th August, 2008 was given by him due to confusion and lapse of

time and the correct date was 1st September, 2008. In his cross-

examination, PW-5 accepted that appellant-Khalid had pointed out the

place of recovery of the truck and a pointing out memo of the spot was

prepared and signed by him at point 'C' and was marked Exhibit

PW.5/C. After recovery of the truck, his statement was recorded by

the IO on 1st September, 2008. In his cross-examination by the

counsel for the accused, PW-5 asserted that he had visited Police

Station Kotputli on 27th August, 2008 with some friends and had met

police officers from Police Station Timarpur. He was shown

photographs of Tej Ram Singh and Hansraj, and not photographs of

his truck. He accepted as correct that he had come to Delhi with the

police officers and had reached Police Station Timarpur on same day.

However, he saw the offender, who had been caught by the police. On

30th August, 2008 and he had returned to Kotputli with the dead

bodies. He came back to Delhi in the morning of 1 st September, 2008.

He had come to Delhi with a driver on 1st September, 2008 and was

taken to Faridabad, where they reached the spot ahead of Faridabad

chowk and the truck was found at the instance of the appellant-Khalid.

Someone had driven the truck back to the Police Station, but the said

person was not his driver. However, he claimed that no

documentation was done by the police in his presence at the spot.

36. What is clear to us from the testimony of Ram Vilas (PW-5)

that the said witness got confused about the dates, apparently because

of passage of time and also because of the fact that he came to Delhi

on several occasions. He did depose that the truck in question was

recovered on 1st September, 2008. The possibility of the recovery of

the truck before the said date does not appear to be probable as the

appellant-Khalid was sent to judicial custody on 30th August, 2008

after he was arrested at 7.30 P.M. on 29th August, 2008. Police

remand was taken only on 1st September, 2008. The prosecution

version is supported by the testimonies of Ct. Rakesh Kumar (PW-6),

SI Sahab Singh (PW-13) and Inspector K.S. Rawat (PW-23). They

had not located the truck before the recovery was made. There is no

ground or reason whatsoever to hold to the contrary. In case the stolen

vehicle had been recovered or found by any police team, it would have

been flashed and uploaded on the police network. Faridabad police,

had they taken the truck in their custody, would have necessarily made

and recorded entries in the police diary. Intimation or inquiries would

have been made from the State Transport Authority. The photographs

of the truck do show blood stains. A close examination of the truck by

a police officer would have resulted in alarm and impelled immediate

further investigation. There is no indication or evidence to that effect.

The police officers who have deposed in the court could not have

concealed or withheld, the fact that the truck in question had already

been recovered and seized. In these circumstances, we accept that the

truck was recovered and seized on 1st September, 2008. We also find

that after the truck was seized, it was photographed and was thereafter

sent to FSL for further examination. The truck was examined by Sh.

V. Shankaranarayanan (PW.21) and Sh. Yogesh. PW.21 in his report,

which is exhibit PW21/A, has stated that blood was detected on the

rooftop of the drivers cabin, truck cover, rope and towel. The said

blood stains were lifted and sent for chemical examination. However

no conclusive blood grouping could be recovered from the

aforementioned samples. The biological report is exhibit PW26/A and

serological report exhibit PW26/B.

37. Section 27 of the Indian Evidence Act, 1872 is in the nature of

partial removal of ban placed on the reception of confessional

statement under section 25 of the Evidence Act. It lays down that

where any fact is deposed to as discovered in consequence of

information received from a person accused of an offence, in the

custody of a police officer, so much of the information, whether it

amounts to confession or not, as relates distinctly to the fact thereby

discovered, may be proved. We have noticed that the truck was parked

at a lonely/desolate place and in presence of PW.5, the same was

recovered at the instance of the appellant.

38. The other incriminating evidence sought to be relied upon

against the appellant as one of the perpetrators of the crime, is the

recovery of knife, the weapon of assault, used by the appellant.

39. The knife was recovered at the instance of the appellant on

3.9.2008. The appellant took the police officials at a place near Chandi

Ram Amhara towards ISBT, and on his pointing out a knife was

recovered. PW.6, PW.20 and PW.23 have testified with respect to

recovery of knife. The recovery has been challenged on the ground

that no public witness at the time of recovery joined the investigation,

despite the place of recovery being a crowded one and that the

recovery memo discloses the knife to be blood smeared, whereas FSL

report (Exhibit PW26/A) is to the contrary and it says that no blood

could be detected on the knife.

40. The recovery of knife, in our opinion, does not inspire

confidence as it has not been recovered from an abandoned area;

rather the place of recovery is an open space and in the absence of any

other link namely blood (human) over such knife, the knife being an

ordinary object of general utility, such recovery cannot be linked with

the crime.

41. The law with respect to recovery of weapon is very well settled.

Mere non recovery of a weapon of assault does not ipso facto lead to

the failure of the prosecution case. In Lakshmi vs. State of U.P. (2002)

7 SCC 198, it has been held that it is not an inflexible rule that the

weapon of assault must be recovered. The Supreme Court did not

accept, as a general and broad proposition of law, that in case of non -

recovery of the weapon of assault, the whole prosecution case gets

torpedoed. The Supreme Court has held as under:

"17. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the persecution and in all cases and eventualities, it ought to result in the acquittal of those who

may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in absence of identification of body and cause of the death."

42. Thus from the testimonies of the witnesses, three facts come to

fore. The appellant was last seen with the above named two deceased

persons; the appellant was present along with the deceased persons till

late in the night when he was spotted by the other witnesses; that he

had motive to do away with the life of the deceased persons viz. to

rob, sell and misappropriate the proceeds of the truck and the recovery

of the truck at the instance of the appellant. The dead bodies were

found near the godown of PW.9 and the truck was found at a secluded

place near Faridabad. It does not stand to reason that the deceased,

while on their way back, were waylaid by others, killed and the

vehicle was taken away. The recovery of the truck at the instance of

the appellant affords guarantee that the appellant had personal