Delhi District Court
1 S/ vs Gynander Etc. on 29 September, 2009
1 S/vs Gynander Etc.
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUGDE-01/SOUTH
PATIALA HOUSE COURT
Sessions Case No. 215/2006
State Versus 1. Gynander S/o Budhan Singh
R/o H. No. 83, Village Fateh Pur Beri
Delhi
2. Ram Sagar @ Sagar S/o Garibe
R/o Village Naipura PO Lohan Pur
Distt. Barabanki (Uttar Pradesh )
3.Ram Baran S/o Ganga Ram
R/o Jhuggi No. 30, Laxmi Bai Nagar
Arjun Das Camp Delhi.
FIR NO. - 103/06
Police Station - Mehrauli
Under Section - 302/201 IPC
Date of institution : 03/07/06
Date when the arguments
were heard : 19/09/09
Date of judgment : 29/09/09
JUDGEMENT
The SHO of Police Station Mehrauli has challaned the accused persons in the court of Metropolitan Magistrate, New Delhi for the trial of the accused persons for the offences under Sections 302/201/120 B IPC.
2 S/vs Gynander Etc. After supplying the copies to the accused persons and compliance of provisions of the section 207 Cr. P.C. the learned Metropolitan Magistrate committed the case to the court of Sessions under Section 209 Cr. P.C. for trial of the accused persons.
BRIEF FACTS OF THE CASE The case of the prosecution, in brief, is that on receipt of DD No. 7 dated 23.2.06 Police Post Bhati Mines, Police Station Mehrauli, the police reached near Narang Farm House near Police Post Dera Mode where Head Constable Sat Parkash and Constable Kishori Lal met the investigating officer and they found that in front of Manish Arora Farm House near the wall of Satbir Farm House, Telephone Pole, some stones with blood stains and broken chain of watch, one empty match box, one Cigarette packet of Gold Flake , two currency notes each of Rs 10/-, one Kada with brass colour were lying. These articles were lying at some small distance from each other. After a distance of 39 paces in the Narang Farm House near the gate there was blood near guard room and 60 paces from the guard room near the wall of Manish Arora Farm House the blood stains were found in a pit having water and it appeared that soil was freshly removed and it also appeared that something was kept under the said soil. The soil was removed and one dead body was found. Sub Inspector Om Parkash checked the dead body and found blood was oozing out from both ears and there were injuries on the face, chest, hands and head of the dead body. Nobody could identify the dead body, when the people from neighbourhood were called to identify it. The dog squad, crime team, photographer were called at the spot and senior officers were intimated 3 S/vs Gynander Etc. through special messenger about the case. Sub Inspector Om Parkash prepared rukka and sent it to Police Station Mehrauli for registration of the case. The rukka was sent through constable Raja Ram.
Crime team inspected the spot and the photographs of the spot were taken. The report of crime team was obtained. With the help of dog squad efforts were made to arrest the accused persons. Statement of incharge crime team Sub Inspector Vinod Pal and constable Giriraj, photographer were recorded under Section 161 CrPC. Thereafter constable Raja Ram returned from the Police station along with copy of FIR and original rukka and gave it to Sub Inspector Om Parkash. The site plan without scale was prepared by Sub Inspector Om Parkash. The chain of watch, cigratte packet, empty match box and two currency notes of Rs 10/- each and kada of brass colour and the blood stained soil, earth control were seized. The blood stained stones were also seized and taken into police possession.
Thereafter on 24.2.06 one Baby Devi wife of Ashok Gupta came to the Police Post Bhati Mines, lodged report with the police that her husband has not come to the house since 22.2.06. The description of her husband given by her matched with the description of the dead body so Baby Devi and Sub Inspector Om Parkash went to AIIMS mortuary where she identified the dead body as of her husband. The postmortem of the dead body was got done in AIIMS Mortuary, after which dead body was handed over to legal heirs of the deceased.
On the information received from secret informer accused Gynander and Ram Baran were arrested on the Road near Dera Mode, Gas Godown near A-4 Farm who admitted before police that they have murdered the victim Ashok Gupta along with co-accused Ram Baran along with brother 4 S/vs Gynander Etc. in law of accused Ram Baran, Ram Sagar with the help of screw driver/patchkas on 22.2.06 and disguised the dead body under the soil. From the search of accused Gynander one mobile phone make Nokia was recovered. These accused persons were arrested, their disclosure statements were recorded and their personal searches were also conducted. They got recovered one Phawra and two patchkas/screw driver, one stone which were used in killing the deceased Ashok Gupta and hiding his dead body under the soil. Accused Gynander got recovered his pant and shirt with blood stains which he was wearing at the time of commission of crime. On the pointing out of accused Ram Baran accused Ram Sagar was arrested on 04.03.06 and from the pocket of his wearing pant two currency notes of Rs 100/- each with blood stains were recovered and one golden chain with broken hook was also recovered from him. Accused Ram Sagar @ Sagar got recovered one polythene from the bushes near Safdarjung Flyover which contained one pant and one shirt. His disclosure statement was recorded by investigating officer. Investigating officer recorded statement of the witnesses under Section 161 CrPC, obtained the postmortem report and subsequent report on the weapon of offence recovered, from the doctor got the case property i.e gold chain identified from the wife of the deceased before learned Link Metropolitan Magistrate and on completion of the investigation challaned the accused persons, as referred before.
CHARGES AND PLEA OF THE ACCUSED PERSONS Prima facie case for the offences punishable under Sections 120B ,302/120B read with section 34 IPC and 201/120B IPC against all the 5 S/vs Gynander Etc. accused persons were found made out, accordingly charges were famed against all the accused persons on 07.09.09 to which they pleaded not guilty and claimed trial.
PROSECUTION WITNESSES In support of its case, prosecution examined twenty eight witnesses in all. Their statements in brief and the purpose for which they were produced by the prosecution is being discussed below.
PW1 Sh Vijaupal landlord of the victim had accompanied the wife of the deceased to the Police Post Bhati Mines for lodging report that victim Ashok Gupta was missing since 22.2.06 evening. He also accompanied the investigating officer to mortuary AIIMS where he identified the dead body of Ashok Gupta.
PW2 Constable Raja Ram has stated that he was called at the spot by the investigating officer on 23.2.06 and investigating officer prepared rukka and handed it over to him for registration of the case. He went to the Police Station and after registration of the case returned to the spot and handed over copy of FIR and original rukka to investigating officer.
PW3 is Sanwar Lal who stated that he got early in the morning and went to attend the call of nature and he saw blood and soil had been dug in the pit. He made telephone call at No. 100 to the police. Police reached there.
PW4 Mohammed Qasif is hostile witness and has stated nothing incriminating against accused in the examination in chief or in the cross examination conducted by the learned Additional Public Prosecutor.
PW5 Sub Inspector Vinod Pal, Incharge Crime Team South District 6 S/vs Gynander Etc. has stated that on 23.2.06 on the request of investigating officer he along with his staff visited the spot ie Asha Narang Farm House, Dera Mode, Mehrauli. He inspected the site from 12.45 PM to 1.45 PM. He prepared his inspection report Ex. PW5/A and handed over it to investigating officer. He directed his photographer to take photographs of the spot.
PW6 is constable Dhirender who was working as motor cycle rider/messanger on 23.2.06 from 8 AM to 8 PM. At about 2 PM duty officer handed over to him copies of FIR to be handed over to senior officers. He went to the office of DCP, ADCP, ADCP2, ACP Haus Khas and also came to Patiala House Court and handed over copy of FIR to learned Metropolitan Magistrate. Thereafter, he returned back to the Police Station.
PW7 is constable Giriraj who on 23.2.06 as per direction of investigating officer took 13 photographs from different angles from the spot. He proved the negatives Ex. PW7/P1 to P14 and the positives are Ex.PW7/P15 to P28.
PW8 is constable Kishori Lal who along with constable Satya Parkash went to Narang Farm House near boundary wall near the telephone pole no. 631/94/95. They found broken chain of watch, one empty match box with blood stains, one cigarette packet make Gold Flake, two currency notes of Rs 10/- each and one kada of copper. He stated that at the distance of 60 paces from guard room they found fresh earth. The water nearby was found blood stained with color of blood. Head Constable Satya Parkash immediately informed this fact to investigating officer, SHO and other staff. They came to the spot. Crime team was called. Crime team along with photographer reached at the spot and inspected the spot. The fresh earth which was found covered was dug and a dead body was 7 S/vs Gynander Etc. recovered. The photographer took photograph of the spot. Investigating officer lifted all the articles lying near at the spot by keeping them in separate pulandas, sealed them and seized vide memo Ex. PW8/A to PW8/D. Dead body was sent to AIIMS mortuary. He accompanied dead body to mortuary and dead body was preserved there for 72 hours.
On 26.2.06 he accompanied Baby Devi wife of the deceased where she identified the dead body as that of her husband Ashok Gupta and told that he was missing from 22.2.06. One Vijay Pal who was with her also identified the dead body.
On 27.2.06 postmortem on the dead body was conducted. After postmortem doctor handed over him four sealed parcels and two sample seal which he handed over to investigating officer who seized the same vide memo Ex. PW 8/E. He identified the pair of sandal of deceased as Ex. PW8/P1, broken watch chain of gold colour Ex. PW8/P2, cigratte box make Gold Flake with 07 cigratte inside it Ex. PW 8/P3, two currency notes of Rs 10/- each Ex. PW8/P4, one copper kada as Ex. PW8/P5 and three stones were taken into possession by the investigating officer vide memo Ex. P17/P1 to P3.
PW9 is Sub Inspector Mahesh Kumar draftsman who proved the scaled site plan Ex. PW9/A and stated that rough notes and measurements taken by him at the instance of investigating officer were destroyed after preparation of scaled site plan.
PW10 is constable Virender who stated that as per direction of investigating officer on 28.3.06 he took all the exhibits of the case vide RC No. 203/21, 204/21 and deposited the same in FSL Rohini. After depositing the same he returned back to Police Station and handed over receipt copy 8 S/vs Gynander Etc. to MHCM. During his possession the seals were intact and were not tampered with.
PW11 is Sukhvir witness produced by the prosecution to establish last seen evidence. He stated that in the year 2006 he was working as Munshi in Bajrang Gas Agency at 20 B, Sarai Kale Khan, Nizamuddin. Ashok Ram Baran, Gynander and 2-3 others persons were also working in the godown. Deceased Ashok was working as daily labour for supplying gas from the godown. He usually gave the account after delivering the cylinders. On 20.2.06 accused Gynander, Ram Baran and Ashok came to his house and gave him the accounts. After handing over the accounts to him they left the room. Thereafter he did not know anything about this case. This witness was cross examined by the learned Additional Public Prosecutor as he was resiling from his earlier statement. He also admitted in the cross examination that he was godown keeper in Bajrang Agency at that time and the godown of the office was at A4, Bhati Mines in the farm house of R P Gupta. He also admitted that Ram Baran, Gynander and Ashok were working in the godown. He admitted that Ashok Gupta and Ram Baran were working as labourer and were suppliers of gas cylinders while Gynander was working as driver. He denied the suggestion that that on 22.2.06 at about 8.20 PM Gynander, Ram Baran and brother in law of Ramdhar i.e. accused Sagar came to his room or that at about 9 PM deceased Ashok also came to his house or that all the four took liquor in his room. He was confronted with portion A to A of statement Ex. PW11/A where it was so recorded. He volunteered that all the three came to his room at once. Accused Sagar had not come to his room.
PW 12 is constable Lakhmi Chand who stated that he recorded 9 S/vs Gynander Etc. message received from constable Sunil of PCR. He entered the message in DD No. 7A. He proved the copy of DD No. 7A as Ex. PW12/A. PW13 is Assistant Sub Inspector Adesh Kumari who was working as Duty Officer on 23.2.06 at Police Station Mehrauli, she proved the carbon copy of FIR Ex. PW 13/A. PW 14 is Sh Sanjeev Aggarwal owner of Bajrang Gas Agency. He stated that he had kept daily wage labourers. In 2006 deceased Ashok Gupta and RamBaran were working as daily wage labourers while Lala was working as driver. He also stated that Ashok Gupta was having his mobile but he was not aware of his mobile number. He did not maintain any register regarding employment/labourers on his daily wages.
PW 15 Jyotish is Nodal Officer, Hutchison Essar Mobile Service and has stated that he prepared the print outs of the call details of incoming and outgoing from 1.1.06 to 27.2.06 in respect of mobile no. 91- 9899267472. He proved the same as Ex. PW15/P1( colly). He also stated that as per their record the last call was made on 22.2.06 and thereafter no call was made from that phone.
PW 16 is Doctor Shalini Girdhar Pool Officer AIIMS. She has proved the antimortem injuries numbering in 20 in different sizes which were on the person of the deceased. She has also stated that cause of death according to her was cranio facial damage caused by blunt force which was sufficient to cause death in ordinary course of nature. All injuries were antemortem in nature. She proved her postmortem report Ex.PW16/A and her opinion regarding injuries caused by stone as Ex. PW16/B. PW17 is Head constable Satya Parkash who corroborated with the statement of PW8 with regard to finding of the dead body of the victim near 10 S/vs Gynander Etc. Satbir Farm House and telephone call in question and recovery of broken chain of watch, empty match box with blood stain, cigratte packet make Gold Flake, two currency notes of Rs 10/- each and one kada of copper and recovery of earth vide memos Ex. PW PW8/A to D. He also identified the case property Ex. PW8/P1 to PW8/P5. He also identified three stones Ex. PW PW17/P1 to P3.
PW 18 is Manish Gupta and has stated that telephone number 55696687 of make Tata was given to him by his relation Ashok Gupta who is owner of Bajrang Gas Agency having office at 20 B Sarai Kale Khan. This telephone was used at his Gas Agency and was installed at A-4, Bhati Mines, New Delhi, gas godown.
PW 19 is Ashok Gupta partner of Bajrang Gas Agency. He stated, in brief , that they are having gas cylinders supply store at A-4 Bhati Mines. Accused Gyanender was working as driver in his agency and deceased Ashok Gupta and accused Ram Baran was working as labourers in their gas agency. There was mobile phone kept in the vehicle with number 9899267472. He also stated that there was mobile and moving telephone of Tata company no. 55696687 which was in the name of Manish Gupta which was installed at A-4 Bhati Mines. This witness was cross examined by the learned Additional Public Prosecutor and he denied that mobile no. 9899267472 was exclusively in the possession of deceased Ashok.
PW 20 Head constable Kanwar Singh has stated that on 4.3.06 he joined the investigation of the case. Accused Ram Baran took the police team to Safdarjung Flyover. As per his pointing out co-accused Ram Sagar was arrested and on his search one chain of gold and two currency notes of Rs 100/- were recovered vide memos Ex. PW20/B and 20/C. His 11 S/vs Gynander Etc. personal search was conducted vide memo Ex. PW20/A. Thereafter the accused led the police team to Kalka Mata Mandir near Laxmi Bai Nagar near Railway Line and got recovered one polythene bag from the bushes. The polythene bag contained one blue colour pant and one shirt of matiala colour( check). Both the pant and shirt were put in pulanda, sealed with the seal and seized vide memo Ex. PW20/D. Thereafter, accused took the police party to the place of incident and pointing out memo Ex. PW20/E was prepared. Witness identified the two currency notes of Rs 100/- each as Ex. P20/P1 and P2. He identified the gold chain Ex. P20/P3 and pant and shirt Ex. P20/P4 and P5.
PW 21 is Sub Inspector Sandeep Ghai has stated that on 27.2.06 he was present with Inspector C K Sharma, Sub Inspector Om Parkash and other staff during the investigation of this case. On the secret information, a nakabandi was made. At about 8 PM accused Ram Baran and Gynander were arrested. On the search of the accused Gynander one mobile phone of Nokia was recovered which was put in a pulanda and was seized vide memo Ex. PW21/A. The personal searches of these two accused were conducted vide memos Ex. PW21/B and Ex.PW 21/C. Thereafter both these accused took the police team to the place of incident and pointed out the place vide memos Ex. PW21/D and 21/E. The disclosure statements of the accused persons were recorded vide memos Ex. PW21/F and Ex.PW 21/G . Accused persons got recovered one phawra, screw driver and blood stained stone piece from the agricultural field near Narang Farm House before Harswaroop Colony. These items were put in pulandas, sealed with the seal of OPP and seized vide memo Ex. PW 21/I. Accused Gynander thereafter got recovered his clothes ie pant and shirt which he was wearing 12 S/vs Gynander Etc. at the time of incident near the wall of Batra Farm House lying among the bushes which were seized vide memo Ex. PW21/J. Thereafter accused Ram Baran along with co-accused Gynander took the police to Arjun Dass Camp, Laxmi Bai Nagar and got recovered his blood stained clothes lying under the cot in front of his jhuggi. These articles were put in pulanda, sealed with the seal of OPP and seized vide memos Ex. PW21/K. PW21 identified Phawra Ex. PW21/P1, screw drivcer Ex. PW 21/P2, screw driver Ex. PW21/P3, stone Ex. PW21/P4. Pant and shirt recovered from accused Ram Baran Ex. PW 21/P5 and P6. Pant and shirt recovered from accused Gynander Ex. PW 21/P7 and P8. Nokia mobile phone 2600 seized from accused Gynander is Ex. PW21/P9.
PW22 is Badri Parsad Gupta who is having a Grocery Shop at Dera Mode and telephone number 39584282 at the said shop. He stated that on 23.2.06 one boy name Sambar Singh made call to the police at 100 from his telephone.
PW23 is Baby Devi wife of the deceased. She stated in brief that she along her husband was staying at the house of Vijay Pal. On 22.2.06 her husband went for duty at gas godown. He did not return on that night. In the night they searched for him but he could not be traced. On 23.2.06 they searched for her husband but he could not be traced. She along with Vijay Pal ( house owner) went to Police Station where Sub Inspector Pawar met them. They complained regarding missing of her husband. He told them a dead body was found about 2-3 days back and was kept in mortuary at the hospital. They accompanied him to hospital. She identified the dead body of her husband. He was wearing a gold chain. But gold chain was not on his neck. She identified dead body vide memo Ex. PW 23/A. She 13 S/vs Gynander Etc. stated that after seeing the dead body she became unconscious. She was cross examined by learned Additional Public Prosecutor and in the cross examination she denied that her statement mark PW23/A was recorded. She admitted that her husband was having mobile phone no. 9899267472 and was wearing golden chain prior to leaving the house when he left for his work. She also admitted that on 4.4.06 she had identified golden chain of her husband before the court during Test Identification Parade. She also identified the golden chain as Ex. PW 20/P3.
PW 24 is H C Dharam Singh was posted as MHC (M) at Police Station, Mehrauli. On 21/03/06, as per direction of the investigating officer he handed over two sealed pulandas sealed with the seal of OPP vide RC No. 199/21/06 for depositing at Forensics Department to HC Kanwar Singh. During his possession the seals were intact and were not tampered with. On 28/3/2006 he handed over 19 sealed pulandas and two sample seals to Constable Virender vide RC No. 204/91/2006 for depositing at FSL, Rohini and after depositing the same Constable Virender returned to police station and handed over the receipt copy to him .
PW 25 is Head Constable Surinder Singh who was posted at PCR on 23/2/2006. On that day he received a message from telephone No. 39584282 from Samvaya. He recorded the message in the PCR form and sent it to wireless section for necessary action. He proved the photocopy of the same as Ex PW 25/A. PW 26 is Sub Inspector Om Prakash who was initial investigating officer in the case. He proved various steps taken by him during investigation of the case. He proved his endorsement on DD No. 7 as Ex PW 12/A and stated that the rukka was sent through Constable Raja Ram 14 S/vs Gynander Etc. to the police station for registration of the case. He stated that he called the crime team and the photographer at the spot which was inspected by the crime team and photographs were taken. Constable Raja Ram came back to the spot along with original ruqqa and carbon copy of the FI R and handed over the same to him. PW26 proved the site plan prepared by him as Ex PW 26/B. He corroborated with the statement of the PW8 Constable Kishori Lal regarding seizure of the articles made at the spot vide memos ExPW8/A to ExPW 8/D. He stated that on 24/2/2006 the case file of this case was transferred to SHO Mehrauli for further investigation. He stated that on 24/2/2006 one Baby Devi alongwith her landlord Vijay came to the Police Post for lodging missing report of her husband Ashok Gupta and gave the description of her husband which matched with the recovered dead body. Thereafter, he took her to AIIMS along with landlord and the dead body was identified by her as of her husband. He stated that the post- mortem was conducted on the body of the deceased. He prepared the brief facts ExPW 26/D. He filled a form 2535 ExPW 26/E. His request for post- mortem is proved by him as ExPW 26/F. He proved his applications for the preservation of the dead body as ExPW 26/G and H. He stated that after the post-mortem was conducted he handed over the dead body to Baby Devi under a receipt ExPW 26/J.. He corroborated with the statement of PW8 regarding hair sample, blood gauze and vicera alongwith sample seal which was given by Doctor and seized by him vide memo ExPW 8/E. He stated that he deposited the case property in the malkhana.
He also stated that on the request of SHO he joined investigation ended the pointing out of secret informer accused Gyanender and Ram Baran were arrested. He corroborated with the statement of PW21 SI 15 S/vs Gynander Etc. Sandeep Ghai regarding disclosure statement ExPW 21/F and G made by the two accused persons and seizure of mobile phone vide memo ExPW 21/K and the pointing out memos of these two accused persons Ex.PW 21/D, seizure memo of screwdriver, one stone wide memo ExPW 21/I, the seizure of the clothes of accused Gyanender wide memo ExPW 21/J and seizure of bloodstained clothes of accused Ram Baran wide memo ExPW 1/K. The witness PW 26 stated that on 4/3/2006 he again joined investigation of this case and on the pointing out of secret informer accused Ram Baran, accused Ram Sagar were apprehended from under Safdarjung flyover and from the right pocket of the accused Ram Sagar one gold chain and two currency-notes of rupees hundred each with blood stains were recovered which were seized by the investigating officer vide memo ExPW 20/B. He proved the arrest memo of accused Ram Sardar as ExPW 26/K and the arrest memo of Ram Baran and Gyanender as ExPW 26/K1 and K2. He identified the currency-notes as ExPW 20/P1 and P2, gold chain as ExPW 20/P-3, Pant and shirt recovered from accused Ram Sagar as ExPW 20/P4 and P5, screwdriver ExPW 21/P2 and P-3, stone ExPW 21/P4, Pant and shirt recovered from accused Ram Baran ExPW 21/P5 and P6, Quentin shirt recovered from accused Gyanender ExPW 27/P7 and P8, Mobile Form 2600 ExPW 21/P9 which was recovered from accused Gyanender, broken chain of a wristwatch ExPW 8/P2, pair of sandal ExPW 8/P1, cigarette packet ExPW 8/P-3, two currency-notes of rupees hundred each ExPW 8/P4 (Colly), copper kara ExPW 8/P5, three stones ExPW 17/P1 to P-3 siezed from the spot.
PW 27 is Mr. A K Chaturvedi, learned Metropolitan Magistrate who 16 S/vs Gynander Etc. conducted Test Identification Proceedings of the case property and has proved the application of the investigating officer ExPW 27/A for test identification proceedings. He proved the test identification proceedings of case property conducted by him as ExPW 27/B and application of the investigating officer for allowing him to supply a copy of the proceedings as ExPW 27/C. PW 28 is Inspector CK Sharma is SHO police station Lajpat Nagar who was posted as SHO PS Mehrauli on 23/2/2006 and has stated that on that day he received information on wireless set that blood was lying near kothi of Braham Singh at Narang Farmhouse. Sub-inspector Om Prakash along with other staff had gone to attend the call. He also reached there near Narang Farmhouse where SI Om Prakash along with other staff met him. SI Om Prakash told him that they had removed the dead body from the small pit. The PW28 stated that he recorded statement of Baby Devi wife of deceased Ashok Gupta who identified the dead body at the AIIMS mortuary. He corroborated with the statement of PW 26 regarding arrest of accused Gyanender and Ram Baran and taking of their personal searches. He also corroborated with the statement of PW 21 SI Sandeep Ghai regarding recovery of mobile phone of deceased and recording of disclosure statement of the accused persons Gyanender and Ram Baran and pointing out memos prepared with their assistance and the recovery of fawrah, two screwdrivers, bloodstained pant and shirt of accused persons and two currency-notes rupees hundred denomination each recovered from accused Ram Sagar. He corroborated with the statement of PW 20 HC Kanwar Singh regarding recovery of broken gold chain recovered from pocket of accused Ram Sagar, pointing out memo at the instance of 17 S/vs Gynander Etc. accused Ram Sagar, pent and shirt recovered at the instance of accused Ram Sagar. This witness also proved the disclosure statement of accused Ram Sagar ExPW 28/A, the FSL reports collected by him ExPW 28/B to ExPW 28/F. He also identified the case property of this case. PLEA AND DEFENCE OF ACCUSED PERSONS In the statements under section 313 CrPC the accused persons have either denied the incriminating evidence emerging from prosecution case and put to them or have expressed their ignorance about the same. They stated that they were innocent and have been falsely implicated in this case. They did not lead any evidence in their defence.
ARGUMENTS AND FINDINGS I have heard Ld. Counsel for the accused persons and learned learned Additional Public Prosecutor for State at considerable length and have perused the record and the judgments cited by the counsel for the parties. For the sake of clarity and convenience the various important circumstances appearing in the case on which arguments are addressed are discussed under different headings.
(A) Legal position as to cases based on circumstancial evidence The present case is a case of circumstantial evidence. As regards circumstantial evidence the law is well settled that if the prosecution is able to prove against the accused the chain of events, without there being any break in the chain, then the accused is liable to be convicted, otherwise not.
In Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, 18 S/vs Gynander Etc. as regards circumstantial evidence, the Hon'ble Apex Court has summarised the legal position observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC
316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circuclos pentane shed es. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn Sagarrcumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision oand Rambhaf this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be
19 S/vs Gynander Etc. consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(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.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that 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. It was also pointed out that the circumstances 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.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the 20 S/vs Gynander Etc. party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was 21 S/vs Gynander Etc. on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC
261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008).
(B) Last seen evidence:
The contention of learned Additional Public Prosecutor for the State is that there is a last seen evidence as regards the accused persons. PW 22 S/vs Gynander Etc. 11, Sukhvir Singh, who was also working as a Godam-keeper/cellar-keeper with the accused persons and the deceased in Bajrang Gas Agency, in his statement made under S. 161 CrPC, on 25/2/2006, he deposed before the Police that on 22/2/2006, date of the incident, at about 8:20pm, all three accused and later the deceased came to his room for drinks and at about 9:00pm they left together saying that they were leaving for more drinks at Dera Mor liquor shop. But on the contrary, contention of counsel for the three accused is that the statement of the said witness was initially recorded on 25/2/2006, after two days of the incident and thus, the said statement cannot be relied upon. It is also the contention that the said witness, PW 11, turned hostile and while deposing before the court he refused that he ever said that he had last seen the accused persons and the deceased, together.
The law as regards last seen evidence, viz-a-viz circumstantial evidence is well established. In State of Goa Vs. Pandurang Mohite - AIR 2009 SC 1066, the Hon'ble Apex Court observed as under:
16. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows:
"22. The last seen theory comes into play where the 23 S/vs Gynander Etc. time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
17. In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows:
"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration". (See also Bodh Raj v. State of J&K (2002(8) SCC 45).)"
18. A similar view was also taken in Jaswant Gir v. State of Punjab [2005 (12) SCC 438] and Kusuma Ankama Rao's case (supra).
From the aforesaid, it is manifest that the last seen evidence even if of a hostile witness but corroborated by some other witness or evidence is a good evidence pointing at culpability of the accused persons. But in the instant case, this is not the case, there is no other evidence or material to ascertain that the deceased was last seen in the company of the accused 24 S/vs Gynander Etc. persons. Thus, this contention on behalf of the prosecution is without any merit. The important circumstance of victim last seen with accused persons is not established on record, PW11 Sukhvir Singh having failed to prove it. Further, PW4 Md. Qasif was produced by prosecution to prove that on 22/02/06 accused persons and victim came to his shop, purchased one Gold Flake Cigarette packet and a match box and then went to PW11 Sukhvir. But PW4 is hostile witness and has not supported prosecution either in the examination-in-chief or in the cross examination conducted by learned Additional Public Prosecutor. This prosecution has failed to prove its last seen theory.
(C) Recovery of mobile from accused Gyanender The other contention of Ld. APP is that the recovery of mobile phone model no. Nokia 2600 with connection no. 9899267472, from accused Gyanender, which as per the testimony of wife of the deceased, PW 23, Baby Devi, belonged to her husband. On the other hand, counsel for the accused Gyanender submitted that as per the testimonies of PW 15, Jyotish, Nodal Officer, Hutchisson Essar Mobile and PW 19, Ashok Gupta, partner/owner of Bajrang Gas Agency, the mobile number 9899267472 was used by all the employees of the gas agency and did not belong exclusively to the deceased.
On perusal of the testimony of PW 15, it is apparent that he did not depose as to in whose name, the connection no. 9899267472 was issued.
25 S/vs Gynander Etc. Also, PW 19 has both in his examination - in - chief as well as in his cross examination denied that the said number belonged to the deceased exclusively. He explained in his statement that the said mobile no. 9899267472 was kept in the vehicle, used for delivery of gas cylinders and any employee, whether accused persons, Gyanender or Rambaran or even the deceased, who went in the said vehicle for delivery of gas cylinder to customers used to have conversation with the customers as well as with the witness PW 19 through the said Mobile phone no. 9899267472. Clearly, nothing cogent has come on record, to show that the said Mobile phone no. 9899267472 was of the deceased person or was in his exclusive possession on the date of hs murder. Also, TIP of mobile was not got conducted by the prosecution. Thus, the prosecution has failed to connect the accused Gyanender, viz-a-viz the said contention or with the death of the deceased.
(D) Joint recovery statements of two accused, Ram Baran and Gyanender - effect The contention of learned Additional Public Prosecutor is that the joint disclosure statement, Ex. PW 21/I of the accused persons, Gyanender and Rambaran, as regards recovery of fawda/shovel and paechkass/screwdriver is a good circumstance, linking both the said accused with the death of the deceased. But contrary to this, the contention of counsel for the accused persons is that joint disclosure statement of two or more accused is against the provisions of S. 27 of the Indian Evidence Act and the same is inadmissible in evidence.
S. 27 of the Evidence Act requires that the prosecution while relying upon the confessional statement of accused in police custody leading to 26 S/vs Gynander Etc. discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts.
The various requirements of the section 27 can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
From the aforesaid discussion, it is manifest that the joint disclosure statement is not contemplated under S. 27 of the Indian Evidence Act. The reason is apparent, a fact, which is discovered once, cannot be re- discovered. The joint recording of disclosure statement is most unsatisfactory. If evidence otherwise confessional in character is 27 S/vs Gynander Etc. admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the investigating officer to state and record who gave the information; when, he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against that person. (See: Mohd Abdul Hafeez vs. State of A.P. - AIR 1983 SC 367; Chandan vs. State of Tamil Nadu - AIR 1978 SC 1574) Also, just as a simultaneous and joint statement by more than one accused is inconceivable, it is equally difficult to conceive a simultaneous and joint discovery of a fact by them. (See: Hemat Ramji vs. State - (1975) 16 Guj LR 782) When the issue of admissibility of joint recovery/disclosure statement came before the Hon'ble Delhi High Court, it observed as under in Oudh Ram and other Vs. The State - 1982 CriLJ 1656 (Del):
22. Lastly, there is evidence of joint disclosure made by Ram Narain and Shiv Poojan during the course of interrogation that they had sold the gold chain and ear-
rings/tops to a goldsmith of Sabzi Mandi and that they could get the same recovered (Ex. P.W. 17/A). It was consequent upon this disclosure that they led the police party to the shop of their co-accused, Jagdish and the latter produced gold ear-rings weighing 5.400 gms. (Ex. P. 83/1-2) which have been identified by Smt. Raj Kumari to be hers. Jagdish-accused has already been let off and acquitted by the trial court by giving him benefit of doubt. The question would naturally arise that in the absence of any evidence to show which of the accused made the disclosure first, will it be permissible to the prosecution to press the joint disclosure made by both Ram Narain and Shiv Poojan under Section 27 of the Evidence Act ? It is 28 S/vs Gynander Etc. well settled that Section 27 must be very strictly construed. The expression "form a person accused of any offence" appearing therein is significant and it seems to have been used designedly because a joint statement of a number of persons cannot be said to be an information received from any particular one of them. As a necessary corollary, facts discovered in consequence of joint information cannot be used as against any one of them. This proposition received the seal of approval of the Supreme Court in Ramkishan Mithanlal Sharma v. State of Bombay, MANU/SC/0044/1954 : 1955CriLJ196 . In the said case, reference was made to the observations made by the Bombay High Court in Rex v. Gokulchand Dwarkadas Morarka (Appeals Nos. 454 & 464 of 1949). An exception was taken before the Bombay High Court to the statement of the police officer that in consequence of certain statements made by accused Nos. 1 & 2 in that case, he discovered the missing pages of the Bombay Samachar of 23rd April, 1948 and it was contended that that statement was inadmissible in evidence. This objection was sustained by the learned Judges on the ground that :-
"..... this is a round about and objectionable way of attempting to prove the statements made by the accused without actually proving them. When the police officer speaks of "in consequence of a statement made by an accused a discovery was made," he involves the accused in the discovery. Whether he gives evidence as to the actual words used by the accused or not, the connection between the statement made by the accused and the discovery of the relevant fact is clearly hinted at. In our opinion, thereforee, evidence cannot be given of any statement made by accused which results in the discovery of a fact unless it satisfies the conditions laid down under Section 27 and this would be so even if the actual statement is not attempted to be proved by the prosecution. Even if the statement is not proved, the statement is not proved,
29 S/vs Gynander Etc. the statement must be such as can be proved under Section 27 ."
23. Their Lordships of Supreme Court while disagreeing with the line of argument put forth by the learned Judges of the Bombay High Court said that :-
"The question that really arose for the consideration of the Court there was whether the joint statement attributed to the accused 1 and 2 in that case was admissible without specifying what statement was made by a particular accused which led to the discovery of the relevant fact and it was rightly held that a joint statement by more than one accused was not contemplated by S. 27 and the evidence of Mistry, the Police Officer, in that behalf should, thereforee, have been excluded."
24. Reference in this context be also made to Babu v. State (a Bench decision of Allahabad High Court) and Prem Bahadur Rai v. State of Sikkim, .
25. Thus, the recovery of the gold tops from Jagdish cannot be said to have taken place in consequence of the disclosure made by either of these appellants as contemplated by Section 27 of the Evidence Act. At best, it may be admissible to prove their conduct, namely, that they had knowledge about the gold tops being with Jagdish but in view of the defense raised by the latter and the benefit of doubt granted to him, this circumstance is hardly of any evidentiary value.
Another point worth noting is that the said fawda/shovel and paechkass/screwdriver were allegedly got recovered from the open field where public had access. Thus, the same is of no much effect and does not appreciably assist the prosecution case.
30 S/vs Gynander Etc. (E) Recovery of match box and gold flake cigarette - to connect accused Gyanendra Contention of Ld APP is that the recovery of match box and gold flake cigarettes from the place where deceased was buried after being killed clearly links accused Gyanender with the death of the deceased. On the contrary counsel for the accused submitted that PW 4 has deposed both in his examination-in-chief as well as cross-examination the said witness denied having said anything about the accused Gyanender @ Lala having purchased Gold Flake cigarette from his shop before going to the house of Satvir, where deceased also came later.
As already stated PW4 Mohd. Qasif is totally hostile witness and has not supported prosecution case either in examination-in-chief or the cross examination conducted by learned Additional Public Prosecutor. The deposition of the said witness also raises serious doubt regarding involvement of the accused Gyanender @ Lala and other accused in the instant case. The match box and Gold Flake cigarette packet allegedly recovered from the spot do not connect the accused persons with the crime in question.
(F) Recovery of Gold chain from accused Ram Sagar 31 S/vs Gynander Etc. The contention of learned Additional Public Prosecutor is that accused Ram Sagar in his disclosure statement stated that he had taken away the said chain from the neck of the deceased after killing him and recovery of the said chain from him at the time of his apprehension coupled with the TIP of the chain dated 4/4/2006, the statement of PW 23, wife of the deceased under S. 161 CrPC dated 18/5/2006 and her deposition before court on 1/3/2008 are clear pointers linking accused Ram Sagar with the death of the deceased. Refuting the same, counsel for the accused submitted that the fact that initially, the statement of PW 23, widow of the deceased, Baby was recorded on 24/2/2006, wherein there was not even a whisper of the gold chain and only later when her supplementary statement was recorded on 18/5/2006, then she stated that her husband had bought a gold chain which was not found around his neck when she identified him at the mortuary.
I find great merit in the contention of counsel for the accused, in this regard. The law in this regard is well settled that any improvement during investigation over the earlier statement is looked upon with suspicion.
Following judgments are worth noting in this regard:
In Kehar Singh and ors. v. The State (Delhi Admn.) AIR 1988 SC 1883, the Apex Court has observed as follows:
32 S/vs Gynander Etc. "70. It could not be doubted that the two versions given out by this witness are not such which could easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In this second statement he has tried to introduce things against him. This apparently is a clear improvement. It is wellsettled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such a witness alone."
In Babu Singh & Ors. v. State of MP III (1997) CCR 182 (MP), the Madhya Pradesh High Court observed as follows:
"14. ...............All this indicates that the story about the demand of dowry and harassment as also the incident of beating has been subsequently introduced as an after-thought, otherwise there was no reason why the parents of the deceased would not unfold the same at the very first opportunity, especially when v.C. Verma, S.D.O. (Police) (PW 7), who conducted investigation, has admitted that both were present. It is, therefore, difficult to hold on the basis of such shaky evidence that any of the appellants had abetted the commission of suicide by the deceased."
In Ramesh Bhandari v. Charan Dass Puri and others 50 (1993) DLT 81, it was observed by the Delhi High Court:
33 S/vs Gynander Etc. "3. ...............It is a case in which apparently earlier statements, although not strictly under Section 161 of the Code do not inculpate the respondent whereas the later statements made after 6-7 days to inculpate them. Even if the statements made at the time of inquest are strictly not in investigation, it is not possible also to ignore them since they are quite detailed and in any case admittedly are in the nature of previous statements of the closest relations of the deceased."
In Onkar Nath Mishra v. State (NCT of Delhi) 2008 [1] JCC 65 (SC), the Hon'ble Supreme Court held as follows:
"19. As regards the applicability of Section 498A IPC, in the complaint dated 8.11.1994 there is not even a whisper of a wilful conduct of appellants No. l and 2 of harassment of the complainant at their hands with a view to coercing her to meet any unlawful demand by them so as to attract the provisions of Section 498A read with Explanation thereto. The complaint refers to the talk the complainant purports to have had with her husband, appellant No. 3, who is alleged to have told her to come to Bijnore if she apologizes to his father; keeps him happy; obeys his sister and talks to her father (complainant's) to give her Rs. 50,000/- and VCR and brings these articles to Bijnore. We are convinced that the allegation of misbeheviour on the part of appellant Nos. 1 and 2 and the demand of Rs. 50,000/- and VCR by them made by the complainant in her subsequent statement, dated 4.4.1995, was an after thought and not bona fide. Section 498A IPC was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully 34 S/vs Gynander Etc. glanced through the complaint, the FIR and the charge-sheet, we find that charge under Section 498A IPC is not brought home insofar as appellant Nos.1 and 2 are concerned."
In Budhan Singh & Ors v. State (Through N.C.T. of Delhi) 2008 [2] JCC 1017 (Del), it was observed as follows:
"5. It is further urged by learned counsel for the petitioners that initially investigation carried out by the investigators indicated that Tikam Singh died due to heart attack and in this regard he has drawn my attention to the statement of Gyan Singh, Ramesh and Daya Chand which was recorded by the investigators initially. In support of such contention learned counsel for the petitioners has placed on reliance a judgment reported in 2004(3) JCC 1754 where this court observed that a complaint, on the basis of which the complainant seeks registration of an FIR, must disclose essential ingredients of offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the FIR. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offense complained of.
6. In the case in hand also investigation carried out by the investigators completely exonerated the petitioners but belated FIR lodged at the instance of the wife should not be taken into consideration as it seems to have been made with a view to fill up the lacuna in the 35 S/vs Gynander Etc. investigation made earlier."
In Rajender Singh Sachdeva v. State (NCT of Delhi) 2008 [2] JCC 979 (Del), it was observed as follows:
"13. If these and the other surrounding circumstances are taken into consideration the complaint of the petitioner appears to be well founded. According to the complaint, the incident in which the petitioner was involved occurred some time in April-May 1988 i.e, 16 years before the complaint. He was not named in the FIR. That incident is also absent in the first report documented during the investigation i.e, a complaint to the Assistant Labour Commissioner. The allegations against the petitioner surfaced only during the statement under Section 161. Interestingly he was named in that. The third statement was recorded on 21.05.2004. In the meanwhile, the petitioner was arrested on 18.05.2004. One does not find any logic as to the recording of the second statement under Section 161 except as a explanation by the complainant regarding identity and knowledge of the petitioner's name. If this is seen in the background of absence of any mention of the petitioner in the FIR, the tenuousness of the link with allegations against him become apparent."
In Smt. Deepa Bajwa v. State & ors 2004 [3] JCC 1754 (Del), it was observed as follows:
"6. After considering the submissions made by learned counsel for the parties, the Court is of the considered view that a complaint, on the basis of which the complainant seeks registration of an F.I.R., must disclose essential ingredients of the offence and in 36 S/vs Gynander Etc. case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint of supplementary statement and thereafter proceed to register the F.I.R. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offence complained of. Such a course would be utter abuse of the process of law. First version as disclosed in a complaint is always important for adjudicating as to whether an accused has committed or not an offence. In the complaint dated 19th April, 2001, the Complainant himself alleged that the Councillor Chhannu Mal was introducing him to the petitioner. If that was the case, how could he say later that on that day the petitioner knew that he was a Scheduled Caste. This statement, therefore, was a crude falsity introduced at the behest of the police to implicate the petitioner under Section 3 of the Act. This effort on the part of the police to supply the deficiency and cover up a lacuna in the complaint in view of legal opinion was totally unwarranted and an abuse of the process of law."
In Bhagwanti v. State 2001(3) C.C. Cases (HC) 139 (Del), it was observed as follows:
"5. Now, applying the above principles, in this case, deceased (Rajni), was married to Dharampal on 27.09.1984; she committed suicide on 18.04.1990, after six years of her marriage. The statements of the parents and brother of deceased were recorded before SDM on 18.04.1990 and 19.04.1990 respectively. In 37 S/vs Gynander Etc. their statements, they did not make any allegations against the petitioner. Their case was that the deceased being harassed by her husband as he was having illicit relations with his cousin Sunita Gandhi. In the backdrop probabilities and nature of the case, subsequent statements of the parents of the deceased under Section 161 Cr. PC recorded by the police during investigation containing vague allegations to the effect that petitioner used to taunt the deceased for inadequate dowry are liable to be rejected. These statements may give rise to some suspicion but not grave suspicion. I would hasten to add that the situation may have been different if the statements of the parents and brother of the deceased before the SDM were not in detail or if in the subsequent statements under section 161 Cr. PC there were some specific instances. The focus of the allegations appear to be against the husband and not again the petitioner. In view of the above no case for framing of charge against the petitioner is made out."
In Balakrushna Swain Vs. The State of Orissa 1971 CRI LJ 670 S. C., the following observations were made by Hon'ble Supreme Court:
"6. In view of all these incongruities we think there is justification in the comment of learned Advocate for the accused that the delayed examination of P.W.5 by P.W.19 would give an opportunity to P.W.5 to concoct a different version that what actually took place.
8. These contradictions ordinarily would by themselves not have much signifance but where as in this case the witness for no justifiable reasons was not examined for nearly 10 days and he is found to he telling falsehoods on material aspects of the case it becomes difficult to 38 S/vs Gynander Etc. place any reliance on such testimony particulary when he tried to conform to the evidence of P.W.1 in the Sessions Court that the first blow was given by a lathi on the waist and the second by a Katuri on the head."
In Husna and others Vs. State of Punjab 1996 SCC (Cri) 421, the following observations were made:
"6. As already noticed, the FIR the names of both the appellants were found missing. They were only named in the supplementary statements of PW1 recorded during the investigation and in our opinion that statement which was recorded during the investigation was hit by Section 162 Cr. P.C and the trial court could not have relied upon the same as a part of the FIR."
In Maruti Rama Naik Vs. State of Maharashtra 2003 CRI LJ 4326 S. C., the following observations were made:
"6. ......PW3 is an injured witness, we find it difficult to place reliance on his evidence not only because of the omissions mentioned hereinabove but also because of the fact that his statement was recorded a day later when the investigating officer had ample opportunity to record the said statement on the day of the incident itself. The explanation given in regard to this unwarranted delay is that this witness was injured and had to be taken to Bombay and brought back to Panvel for treatment. Taking into account the nature of injuries suffered by this witness and the opportunity investigating officer had to record his statement, we think this explanation given by the prosecution is not convincing. Bearing in mind the fact that even according to this witness. Large number of people attacked the deceased and his omission to state the names of thse appellants as the assailants in his previous statement, we think it not safe to place 39 S/vs Gynander Etc. reliance on the evidence of PW3 to find the appellants guilty of the offences charged without there being any material corroboration from other independent acceptable source. That is even applying the test laid down by this Court in the case of Masalti Etc. V. State of UP (AIR 1965 SC 202) which was followed by the High Court in its judgment."
In Viswanath and another Vs. State of Madhya Pradesh 2005 CRI LJ 1913 MP it was observed as follows:
"Investigation officer must recod the statement promptly in order to inspire confidence in such statements. As unexplained delay in examining a crucial witness would render the witnesses unreliable. Where the staements of relatives were recorded after long delay and no explanation of delay were offered, the evidence of witnesses cannot be relied upon where only general allegations of demand for dowry were made against the husband and other family members and there was no clear and cogent evidence involving them in demand for dowry."
In Ganesh Bhavan Patel and another Vs. State of Maharashtra AIR 1979 SC 135 the Hon'ble Supreme Court observed as follows:
"15. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P. Ws. Welji, Pramila and Kuvarbai and casts a serious doubt about their being eye-witnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under S. 161 Cr. P.C were recorded on the following day. Welji (P.W.3) was 40 S/vs Gynander Etc. examined at 8 a.m, Pramila at 9.15 or 9.30 a.m and Kuvarbai at 1 p.m. Delay of a few hours, simplicites, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such significane to this delay, exists in the instant case".
It was further observed as follows:
"18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have been reversed."
It was further observed as follows:
"29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F.I.R' and further delay in recording the statements of the material witnesses casts a cloud of suspicion on the credibility of the entire wrap and woof of the prosecution story."' In the present case in the earlier statement of PW23 wife of victim did not state that victim was wearing gold chain at the time of murder. The 41 S/vs Gynander Etc. said gold chain is alleged to have been recovered from accused Ram Sagar on 04/03/2006. In the TIP on 04/04/06 PW23 identified the gold chain. But she first gave supplementary statement on 18/05/06 that gold chain belonged to her. Therefore, in the light of above case law neither her supplementary statement nor recovery of gold chain from accused Ram Sagar nor Test Identification Proceedings of gold chain are free from reasons doubt.
(G) Recovery of blood stained clothes at the instance of accused persons The contention of learned Additional Public Prosecutor is that the recovery of blood stained clothes is a good circumstance, linking the said accused persons with the death of the deceased. But contrary to this, the contention of counsel for the accused person is that PW 21 turned hostile and deposed in his cross-examination that the place of recovery of blood stained clothes is accessible to public thus, the same is not admissible under S. 27 Indian Evidence Act.
PW 21 SI Sandeep Ghai deposed in his examination-in-chief that the clothes recovered at the instance of the accused Gyanender were not found at a place where public had access but in his cross-examination he deposed that the said place of recovery was accessible to public and such clothes were easily available in market. He also deposed that people go to nearby bushes for answering call of nature, thus, clearly he did not support the prosecution case and thus same is not of much assistance to the prosecution case. It is also argued that mere recovery of blood stained clothes from accused persons suffifient to prove their guilt. Reliance is 42 S/vs Gynander Etc. placed upon the following observation in Jahid @ Lambu 2009 (3) JCC 1760 Delhi (DB), in which it was observed as follows:
" This leaves us with only the circumstance of recovery of a blood stained knife and blood stained clothes at the instance of the appellant. We have gone through the decisions referred to by the learned counsel for the appellant on this point. We are in agreement with the submissions made by him that without there being any other circumstance, the recovery of the blood stained knife and clothes by themselves would not lead us to the conclusion that the appellant is the perpetrator of the crime. "
In the light of Jahid's case (supra) the recovery of blood stained clothes or knfe ( in the present case clothes and stones etc ) at the instance of accused persons are not suffifient to prove guilt of the accused persons.
Not only the said recovery was made from a place where public had access but also the blood test of the accused person and the deceased were not got done to verify whether the same belonged to the accused. I find merit in contention of the accused.
(H) Motive The contention of Ld. Counsel for the parties that the prosecution could not prove the motive for the accused persons to have committed the alleged murder of the deceased is fatal for the prosecution case. On the other hand, contention of APP is that though motive is a good circumstance against the accused persons but even if prosecution fails in proving it, same would not lead to throwing the entire prosecution to the 43 S/vs Gynander Etc. winds.
As regards, motive, the Hon'ble Apex court observed as under in State of H.P. vs. Jeet Singh - AIR 1999 SC 1293, which is as under:
25. The High Court observed that the accused had no good motive to liquidate his young wife. This is what the learned Judges of the High Court have stated on that aspect :
"Although it is not always necessary for the prosecution to prove motive in a criminal trial, however, this is one of such cases where motive is essential in case the prosecution wants to succeed in its endeavours to prove the case against the accused. But, we are not convinced with this kind of motive. These factors, narrated by the prosecution, are too trivial to be taken note of to establish it. They are thoroughly insignificant and do not, in any way, indicate that they could influence the accused to the extent that he would take the extreme step of killing his wife."
Having stated the legal principle correctly that it is not the requirement of law that unless prosecution establishes a motive of the accused to murder the deceased prosecution must necessarily fail, learned judges proceeded to treat the case on hand as an exception to the aforesaid general approach. Why should the present case be an exception to the aforesaid legal principle ?
26. Learned counsel for the accused invited our attention to the decision of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, A.I.R. 1984 SC 1622 in which an earlier decision in Ram Gopal v. State of Maharashtra, A.I.R. 1972 SC 656 was followed with approval as laying down different tests regarding the mode and manner of proof in cases of murder by administration of poison. They are : (1) Whether there is a clear motive for an accused to 44 S/vs Gynander Etc. administer poison to the deceased. (2) Whether the deceased died of poison which is said to have been administered. (3) Whether the accused had poison in his possession. (4) Whether he had an opportunity to administer it to the deceased.
27. On its basis learned counsel contended that the establishment of a clear motive is sine qua non for a conviction in cases of murder through administration of poison.
28. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In this context we may extract the observations made by a two Judge Bench of this Court (Dr. A.S. Anand, J. - as the learned Chief Justice then was and Thomas, J.) in Nathuni Yadav v. State of Bihar, 1998(9) SCC 238 :
"Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act . Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R.V. Palmer (Shorthand Report at p.
45 S/vs Gynander Etc. 308 CCC MAY 1856) thus :
"But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.
"Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant."
(Para 17) Be the position as it may, this is a case where prosecution succeeded in showing that the accused had some cause for dislike of his wife. Some of the letters which accused had written during the preceding months were seized by police and marked as exhibits of the prosecution. Some of those letters contained the adverse remarks made by him about Sudarshana Devi's conduct in domestic activities. The High Court did not read much in those letters as exhibiting any prejudice or ill will towards his wife. Of course such an interpretation is plausible. Hence those letters do not afford any clue for the motive to finish her.
Thus, from the aforesaid, it is clear that motive alone, even if not proved, is not sufficient to doubt the prosecution case. Proof of motive coupled with other circumstances in effect is to be seen. Thus, in the facts and circumstances of the case, it is apparent that failure of prosecution to prove motive may not be fatal to the prosecution case but at the same time 46 S/vs Gynander Etc. absence of motive does not in anyway strengthen the prosecution case. (I) Test Identification Parade of Ram Sagar The contention of counsel for the accused is that accused Ram Sagar was not an employee of the Bajrang Gas Agency and his TIP was also not done, which goes against the prosecution case. On the contrary learned Additional Public Prosecutor submitted that even if TIP of the accused Ram Sagar was not conducted same is not fatal to the prosecution case.
The case being based on circumstancial evidence, I find force in the argument of learned counsel for the accused Ram Sagar that his test identification parade should not have been hold during investigation of the case.
RESULT OF THE CASE In the backdrop of above discussion, it is manifest that the prosecution has failed in establishing its case beyond reasonable doubt. It is well settled that in our adversarial system of criminal justice system, the accused is taken to be innocent unless proved to be guilty beyond reasonable doubt and if the court has reasonable doubt as to the guilt of the accused persons then accused cannot be convicted and he should be given benefit of doubt and should be acquitted. As an innocent person should not be punished even if a guilty person is let loose due to failure of prosecution to prove the guilt of the accused beyond reasonable doubt. In this regard the Hon'ble Apex Court in Rang Bahadur Singh v. State of U.P., (2000) 3 SCC 454, observed as under:
"22. The amount of doubt which the Court would
47 S/vs Gynander Etc. entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."
In view of the aforesaid discussion, I hold that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubt for the charges for the offences under sections 302/201/120-B IPC, all the accused persons are accordingly acquitted of the said charges framed against them. The personal bonds and surety bonds furnished by the accused persons who are on bail are cancelled.
Announced in the open court on 29/09/09 (S K SARVARIA ) Addl Sessions Judge-01/South Patiala House Court