4 vs . on 24 July, 2012

[Cites 42, Cited by 0]

Delhi District Court

4 vs . on 24 July, 2012

                                                                    1

                       IN THE COURT OF SH. RAJNISH BHATNAGAR, 
                       ADDL. SESSIONS JUDGE II,  OUTER DISTRICT 
                                       ROHINI COURTS : DELHI             


IN RE :                                          Sessions Case No. :  73/10       
                                                     ID No.    : 02404R1000872003      
                                                     FIR No.  : 227/03          
                                                     P.S.       :  Kanjhawala 
                                                     U/s         : 302/364A/201/120B/34 IPC 
                                                     Date of registration :  23012004      
                                                     Reserved for Judgment on:  08062012 
                                                     Judgment Announced on : 24072012 

                              State             

                               Vs.
      
1.   Amit Sharma S/o Janeshwar Prasad    
      R/o Village Tikri Khurd,  Delhi. 

2.   Amit Khatri S/o Jagbir Singh  
     R/o Village Tikri Khurd,  Delhi.
     
3.   Shiv Kumar @ Shiva S/o Mohan Lal   
     R/o House No. 178, Village Khan Pur, Delhi.  

4.   Devender Kumar S/o Khem Chand
      R/o House No. 258, Village Khan Pur,  Delhi.  
     
5.   Vivek Gaur @ Lovely S/o Krishan Kumar  
      R/o Village Khan Pur,  Delhi.             
    
JUDGMENT

Sessions Case No: 73/10 Page 1 of 87 2

1. Briefly stated the facts of the case are that accused persons hatched a criminal conspiracy and in pursuance to that they kidnapped Tarun Kumar @ Chintu aged 18 years who was st studying in BA (Pass) 1 year at Satywati Sandhya College, Ashok Vihar, Delhi. Thereafter a ransom demand of Rs. 20 Lakh was made from his parents and when the said demand was not fulfilled, Tarun Kumar @ Chintu was murdered. Thereafter the accused persons had thrown his dead body in a ditch at an abandoned place on G.T. Karnal Road with the motive of screening themselves from legal punishment.

2. On the statement of Sh. Satish Bhardwaj, father of Tarun Kumar @ Chintu, F.I.R. bearing No. 227/03, was registered at P.S. Kanjhawala and investigation went underway. During the course of investigation accused persons were arrested and recoveries were effected.

3. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.

4. On 29072004, a charge U/s 120B IPC and U/s 364A/302/201/120B IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. Sessions Case No: 73/10 Page 2 of 87 3

5. In order to prove the guilt of the accused persons, the prosecution examined as many as 26 witnesses.

6. PW 1 ASI Raghubir Singh is the duty officer. He recorded the DD No. 3A regarding receipt of the rukka and also recorded the formal FIR of the instant case. He proved on record copy of DD No. 3A as Ex. PW 1/A and carbon copy of the FIR as Ex. PW 1/B.

7. PW 2 H.C. Ranbhir Singh is the MHC(M). He deposed about the depositing of various exhibits of the instant case in the malkhana and the relevant entries made by him in this regard in the malkhana register. He also deposed about the sending of the exhibits of the case to the CFSL office Hyderabad vide RC No. 93/21. He also deposed about the four sealed parcels sealed with the seal of DPS containing one parcel of wrist watch, second parcel containing gold chain, third parcel containing shoes and th 4 parcel containing finger ring which were sent for TIP in the court of the concerned MM and the entry made by him in this regard at Sl. No. 980. He produced the malkhana register containing entry No. 978 and 980 and proved on record entry No. 978 (1 to 16 pages) as Ex. PW 2/A and photocopy of entry No. 980 as Ex. PW 2/B. He also proved on record the copy of Sessions Case No: 73/10 Page 3 of 87 4 road certificate No. 93/21 as Ex. PW 2/C and the receipt issued by the Director of CFSL Hyderabad as Ex. PW 2/D.

8. PW 3 Satish Bhardwaj is the complainant (father of the deceased) on whose statement the present case was registered. He deposed that when on 25092003, his son did not return from the college, he and his wife started contacting him on his mobile phone. He further deposed that at about 10 p.m he again contacted on the mobile phone of his son and at that time the mobile phone was in working condition. He uttered hello but no body responded. He further deposed that thereafter he called his nephew Hemant and asked him to call on the mobile phone of his son. He further deposed that at about 10 p.m his nephew Hemant made a call from his Reliance Mobile phone on the phone of his son and at that time the mobile phone of his son was found working. He further deposed that his nephew talked to the person attending the mobile phone and the receiver of the call asked from his nephew Hemant that who was he. He further deposed that his nephew in his presence told that he was the brother of Tarun and Hemant asked from the receiver of the call about Chintu. He further deposed that the person on the other side of the phone said "Tumhara Chhora Utha Liya Hai, Sessions Case No: 73/10 Page 4 of 87 5 Bees Lakh Rupeya Ka Intzam Karo Aur Kal Phone karenge." and thereafter the mobile phone of his son was disconnected. He has further deposed that on the next day he, his wife and brothers tried to contact on the mobile phone of his son through his telephone but the phone of his son was not in working order.

9. He further deposed that when his brother Sanjay Kumar tried to contact on the mobile phone of his son it was found open and when his brother asked about Tarun, the person who was attending the phone asked "Kaya Pesso Ka Prabhand Ho Gya Hai". On this his brother replied that the arrangement of money has been done. He further deposed that his brother asked the place of delivery from the said person and the said person told his brother that he would tell the place where the ransom was to be delivered. He further deposed that thereafter he and his family members tried to contact the mobile phone of his son but it was found switched off.

10. PW 3 further deposed that during the intervening night of 28/29.9.03 he received a message from PS Kanjhawala in which he was called at PS Kanjhawala. On receipt of the call he alongwith his neighbour / friend Raj Kumar S/o Kartar Singh Sessions Case No: 73/10 Page 5 of 87 6 went to PS Kanjhawala at about 12;00 midnight. SI Balbir Singh and Inspector SHO Dharampal Singh took them in their vehicle to Rohtak Medical Hospital in the mortuary where ASI Ram Rattan of Haryana police met him. ASI Ram Rattan showed them the dead body lying in the mortuary and he identified the said dead body of his son Tarun @ Chintu.

11. PW 3 further deposed that police had recorded his statement in this regard and he proved the same as Ex. PW 3/B. He further deposed that on checking he found there was no shoes on dead body of his son, his mobile was also not there. He further deposed that his son was also having a purse, his college Icard, his driving licence and some receipts of NIIT computer, he was also wearing a gold ring having red coloured stone, he was also wearing a titan watch and dial of the watch was golden and chain was white steel, he was also wearing a gold chain with locket in which Sri Ram on the front side and on the back of it his name Tarun was engraved when his son went for his college from his house. He identified the dead body but these things were found missing. He further deposed that police had also not recovered the same from dead body. He had also disclosed this fact to the police in his statement. After Sessions Case No: 73/10 Page 6 of 87 7 postmortem the dead body was handed over to him by the police and he took the dead body to Delhi and cremated the same in his village. He identified the case property.

12. PW 4 Abdul Sattar deposed that he is a diver by profession. He further deposed that on 3102003, at about 2:00 p.m. or 2:30 p.m he was present on the bank of Yamuna river near Wazirabad bridge and at that time police of PS Kanjhawala came to him and asked for his help. They told him that a mobile phone and a purse is to be discovered from a water tank in the area of Alipur. He agreed and he went with police officials to the water tank near Tikri Khurd where a police officer, a constable were present with two accused persons. The SHO of PS Kanjhawala was also present there, who told him that a purse and a mobile are to be discovered from that water tank.

13. PW 4 further deposed that he told the police officer that if the accused would throw stone at the place where mobile phone and the purse were lying in the water tank, he can locate the same. Thereafter one of the accused had thrown stone in the water tank. He put off his clothes and went inside the water tank. He dived 5 or 6 times and worked hard in searching the purse and the mobile phone and at last a purse of black colour Sessions Case No: 73/10 Page 7 of 87 8 came in his hand in the water tank at the bottom and he took out the same and handed over to the SHO. The SHO opened the purse and a small stone was lying inside the purse, an identity card having photograph of the deceased, some other cards and papers were also in the purse. The SHO had taken out the same. The Icard and the papers were wet. The police had dried the same.

14. PW 4 further deposed that thereafter the police had put those papers and Icard in the same purse and sealed into a parcel with some seal and taken into possession vide recovery memo which he proved as Ex. PW 4/A. PW 4 also identified accused Amit Sharma and accused Amit Khatri as the persons who were with the police at the water tank. PW 4 also correctly pointed out accused Amit Sharma as the person who had thrown stone in the water tank and pointed out the place from where he searched the purse while diving again and again. He further deposed that the mobile phone could not be discovered despite his best efforts. PW 4 identified the case property.

15. PW 5 Smt. Anita Bhardwaj is the mother of the deceased. She deposed that her son Tarun Kumar @ Chintu was studying in B.A. First year in Satyawati College (Evening). Sessions Case No: 73/10 Page 8 of 87 9 She further deposed that on 25092003, her son Tarun Kumar went to his college at about 1:30 p.m but he did not return to their home up to 7:30 p.m. She and her husband waited for their son up to 8 p.m. Thereafter they started making telephone calls on his mobile phone No. 9891102594. The bell of the mobile phone was ringing but her son was not receiving the call.

16. She further deposed that thereafter she and her husband asked their nephew Hemant to call on the mobile phone of her son. Hemant telephoned on mobile phone of her son. Some one had attended the call and asked Hemant that who was calling, then Hemant told him that he was brother of Tarun Kumar, then that person said Tarun Kumar had been kidnapped by them and asked for Rs. 20 Lacs for his release.

17. She further deposed that thereafter, that person had switched off the mobile phone of her son. Thereafter they had tried to contact on mobile phone of his son but in vain as it was switched off. She became depressed, and after five days, dead body of her son was found in Rohtak Medical college.

18. PW 6 constable Manish took 8 sealed parcels containing exhibits of the instant case to CFSL Hyderabad alongwith sample seal vide road certificate on 29112003. He reached there on Sessions Case No: 73/10 Page 9 of 87 10 1122003. He received carbon copy of the road certificate and receiving letter from the concerned official of CFSL Hyderabad. He returned to Delhi on 512003 and on return to PS he deposited the carbon copy of the road certificate and receiving letter with Malkhana Moharar.

19. PW 7 SI Manohar Lal is the draftsman who on 28112003 went at village Bakhtawar Pur with Inspector Dharampal and SI Ram Kumar and they went there at Vandana Photo Studio and Shivam General Store where he took the rough notes and measurement of the place of occurrence and on the basis of the same PW 7 prepared the scaled site plan which he proved as Ex. PW 7/A. PW 7 further deposed that on the same day he alongwith the said police officials also went to the place of occurrence i.e opposite Picric Ltd. GTK Road area of village Badli where he took the rough notes and measurements of the place of occurrence and later on on the basis of the same he prepared the scaled site plan which he proved as Ex. PW 7/B.

20. PW 8 Constable Dalbir Singh deposed that on 2102003 he was summoned by the IO of this case at village Tikri Khurd, Delhi. A Maruti Car bearing registration No DL 3CT 1804 was found parked on the road at village Tikri. He took 13 photographs Sessions Case No: 73/10 Page 10 of 87 11 from different angles of the car and shop. He proved on record the negatives as Ex. PW 8/1 to Ex. PW 8/13 and six positives photographs of the car and the shop as Ex. PW 8/14 to PW 8/22.

21. PW 9 Hemant deposed that on 25092003, at about 10 or 10:30 p.m he came to his house from his office and at that time he went at the house of his cousin brother Tarun as usual. His uncle Satish father of Tarun was present at his house. He told him that Tarun had not returned from his college. He told him that Tarun is not lifting his phone and bell is ringing but nobody is responding.

22. PW 9 further deposed that his uncle Satish asked him to call him on his mobile phone. Thereafter he called on the mobile phone No. 9891102594 of Tarun from his mobile phone No. 32332151. Someone had attended the call and that person asked him that who he was, to which he replied that he was his elder brother. On this that person replied your boy had been kidnapped and arrange Rs. 20 Lakh for his release. "THARA CHHORA THA LIYA HAI BEES LAKH KA INTJAM KARO.". He further deposed that after saying the above said words the person who was attending that call had disconnected mobile phone. PW 9 further deposed that he disclosed this fact to his Sessions Case No: 73/10 Page 11 of 87 12 uncle Satish. His uncle Satish informed the police on 100 no. and the police came there.

23. PW 10 Sh. Ramesh Chand Bhardwaj is the section Officer (Administration) Satyawati College (Evening). He proved on record the certificates of Amit Sharma S/o JP Sharma and Tarun S/o Satish as Ex. PW 10/A and Ex. PW 10/B which were issued by Administration Branch and signed by AO and Principal. He had also singed on these certificates. He deposed that both the above said persons Amit Sharma and Tarun were students of their college during the academic session 200304. He also produced the original admission form of accused Amit Sharma and deceased Tarun.

24. PW 11 Sanjay Kumar deposed that on 26092003, at about 11:45 a.m., he was sitting in the house of his son Harnand Bhardwaj who was trying to contact on mobile phone No. 9891102594 of Tarun (deceased) from the land line telephone No. 25952233 and at that time the mobile phone of Tarun responded but Tarun was not speaking on the mobile phone and someone else was speaking. He asked him, "where is Tarun"

and he replied that Tarun is alright and arrange the money. Thereafter, he requested him not to cause any harm to Tarun. Sessions Case No: 73/10 Page 12 of 87 13 He got perturbed and switched off the mobile phone. PW 11 further deposed that thereafter he tried to make telephone call on the above said mobile phone number of Tarun but the mobile phone of Tarun did not respond. On 2992003, the police of PS Kanjhawala informed that a dead body of Tarun was received in Gannore.

25. PW 12 Shri Raj Kapoor is the Metropolitan Magistrate, Karkardooma Courts. He conducted the TIP proceedings. He proved on record the application regarding request for conducting TIP as Ex. PW 12/A, his detailed report about the TIP as Ex. PW 12/B, certificate given by him about the correctness of TIP as Ex. PW 12/C.

26. PW 13 Ramesh deposed that on 27092003, he was sarpanch. On that day between 7 p.m. and 8 p.m., he was coming from Gannaur to Delhi. He was on foot. When he reached near Picrik, he saw dead body of a boy lying in a ditch. The dead body was having one blue colour jeans, a half sleeve shirt and one baniyan of red colour. The body was emanating foul smell and was having blood stains on nose and mouth. He informed the police about the dead body.

27. PW 14 is ASI Ram Rattan who on 27092003, on Sessions Case No: 73/10 Page 13 of 87 14 receipt of information from PW 13 Ramesh regarding lying of dead body in front of 'Picrik' on the way towards Delhi side in a ditch went to the spot alongwith Ramesh and H.C. Randhir Singh where they found the dead body of a young boy aged about 2022 years lying in a ditch.

28. PW 14 further deposed that he called the photographer and photographs of the dead body were taken. Thereafter he prepared the papers U/s 174 Cr.P.C and the body was sent to Government hospital Sonepat through HC Randhir Singh for postmortem. The postmortem was not conducted there and on 2892003, they referred the dead body to PGIMS Rohtak for postmortem. PW 14 further deposed that on 29092003, he reached at PGIMS Rohtak in the morning hours where SHO PS Kanjhawala alongwith Raj Kumar and Satish Bhardwaj reached there and Raj Kumar and Satish identified the dead body as that of Tarun who was son of Satish Bhardwaj. After the postmortem the dead body of Tarun was handed over to Satish Bhardwaj. PW 14 proved on record the inquest papers prepared by him having site plan of the spot and the statement of witnesses as Ex. PW 14/A. He further proved on record the statements recorded by him as Ex. PW 14/B. He further proved on record rukka as Ex. Sessions Case No: 73/10 Page 14 of 87 15 PW 14/C and deposed that other statements of witnesses Subhash, Ramesh Chand, Satish, Raj Kumar were recorded. They all are part of proceedings U/s 174 Cr.P.C and attested by him at pointB.

29. PW 14 further deposed that on 30092003, he handed over the inquest papers to the IO SI Balbir Singh of PS Kanjhawala. On 06102003, he handed over the photographs of the deceased to IO SI Balbir Singh after getting the same developed. He proved on record both the photographs (positives) as Ex. PW 14/D and Ex. PW 14/E. He also deposed that he had given negatives to the IO SI Balbir Singh. SHO visited the spot with him and prepared the scaled site plan at his instance vide mark A.

30. PW 15 is Raj Kumar who on 29092003 alongwith Satish Bhardwaj had come to PS Kanjhawala and from there he alongwith IO, SI Balbir Singh, Satish Bhardwaj had come to PGIMS Rohtak, Haryana where ASI Ram Ratan showed them the dead body of young male person. PW 15 further deposed that after seeing the dead body he identified the dead body as that of Tarun @ Chintu. He further deposed that thereafter the postmortem on the dead body of deceased was conducted in the Sessions Case No: 73/10 Page 15 of 87 16 hospital and after the postmortem the dead body was handed over to the relatives of the deceased in his presence.

31. PW 16 SI Ram Kumar joined the investigation with the IO SHO Inspector Dharam Pal on 02102003. In his presence accused Amit Sharma was arrested by the IO, his personal search was conducted and his disclosure statement was recorded and mobile phone make Samsung of accused Amit Sharma was seized. PW 16 proved on record the arrest memo of accused Amit Sharma, his personal search memo, his disclosure statement and seizure memo of his mobile phone make Samsung as Ex. PW 16/A, Ex. PW 16/B, Ex. PW 16/C and Ex. PW 16/D respectively.

32. PW 16 further deposed about the sequence of investigation done by the IO in his presence. He further proved on record seizure memo of gold chain with locket recovered at the instance of accused Amit Sharma as Ex. PW 16/E, arrest memo of accused Amit Khatri, his personal search memo and his disclosure statement as Ex. PW 16/F, Ex. PW 16/G and Ex. PW 16/H respectively. PW 16 further proved on record the seizure memo of a ring having red colour stone which was taken out by accused Amit Sharma (should have been Amit Sessions Case No: 73/10 Page 16 of 87 17 Khatri, its a typographical error) from the pocket of his pant as Ex. PW 16/I.

33. PW 16 further proved on record seizure memo of gunny bag as Ex. PW 16/J, seizure memo of the pieces of plywood as Ex. PW 16/K, seizure memo of Maruti Car 800 as Ex. PW 16/L and seizure memo of scooter as Ex. PW 16/M (all recovered at the instance of accused Amit Khatri).

34. PW 16 further proved on record the arrest memo of accused Shiv Kumar as Ex. PW 16/N and his personal search memo as Ex. PW 16/O. He further proved on record arrest memo of accused Devender as Ex. PW 16/P and his personal search memo as Ex. PW 16/Q. He further proved on record arrest memo of accused Vivek Gaur as Ex. PW 16/R and his personal search memo as Ex. PW 16/S. He further proved on record the disclosure statements of accused Vivek Gaur, Shiv Kumar and Devender Kumar as Ex. PW 16/T, Ex. PW 16/U and Ex. PW 16/V respectively. He further proved on record the seizure memo of mobile pone produced by accused Devender as Ex. PW 16/W, seizure memo of wrist watch which accused Vivek was wearing as Ex. PW 16/X, seizure memo of one pair of brown coloured shoes recovered at the instance of accused Shiv Sessions Case No: 73/10 Page 17 of 87 18 Kumar @ Shiva as Ex. PW 16/Y, seizure memo of the bag of Kabuli Chana and the blood stained bag which was got recovered by accused Amit Sharma as Ex. PW 16/Z, seizure memo of the blood stained portion of the wall and blood earth control which was pointed out by accused Amit Sharma as Ex. PW 16/Z A, pointing out memo of the johar (pond ) in the north side of village Tikri Khurd pointed out by accused Amit Khatri and accused Amit Sharma as Ex. PW 16/ZB and Ex. PW 16/ZC respectively. PW 16 identified the case property.

35. PW 17 Karan Singh deposed that he was having two shops in Samai Singh Market, Village Bhaktawar Pur. He had given these shops on rent to one Sh. Arun about 8 /10 years ago. Thereafter, both the shops were vacated by Arun Kumar after he gave an application in the Court in Tis Hazari. He further deposed that he has no copy of the said application which he had filed in Tis Hazari Court.

36. This witness was declared hostile and cross examined by the Ld. APP but nothing material could be extracted from his cross examination.

37. PW 18 Rekha deposed that the scooter bearing registration No. HR 10 E 6665 was given by her father in her Sessions Case No: 73/10 Page 18 of 87 19 marriage which had taken place with Amit Khatri. Her husband Amit Khatri used to drive the scooter. She further deposed that in her presence the police did not visit her house. The police had never taken possession of the scooter. She further deposed that she was at her parents house and therefore, she did not know if the said scooter was taken by the police or later on it was got released by the order of the court.

38. This witness was declared hostile and cross examined by the Ld. APP but nothing material could be extracted from her cross examination.

39. PW 19 Meena deposed that she is the registered owner of the car with registration No. DL 3 C T 1804 make Maruti. Her brother Amit Kharti never took this car from her or form her in laws. She further deposed that she had taken the said car by the order of the court. Few years back the police came to her house at Alipur and took the above car.

40. This witness was declared hostile and cross examined by the Ld. APP but nothing material could be extracted from her cross examination.

41. PW 20 Rajesh deposed that in the year 2003, he was having an STD booth in his house in village Tikri Khurd and a Sessions Case No: 73/10 Page 19 of 87 20 telephone No. 27781472 was installed there. Amit Sharma accused is residing in the same village where he is residing. He further deposed that Amit Sharma used to come to his shop to make telephone calls. He could not tell the date or month in the year 2003, when Amit Sharma came to his shop to make STD calls or to use his above telephone to make even a local call.

42. On a lead question put by the Ld. APP this witness stated that he cannot say that Amit Sharma visited his STD shop in the night intervening 25/2692003 to make a telephone call.

43. PW 21 Shri Pawan Singh is the Nodal Officer IDEA Cellular Limited. He brought the call details record of mobile No 9891102594 dated 692003 to 25092003 and proved on record the certified copy of the call details as Ex. PW 21/A which contains the details of the calls both incoming and out going.

44. PW 22 Shri R.K. Singh is the Nodal Officer Bharti AIRTEL Limited. He deposed that that he has seen the record of Mobile No. 9810872071 from 1.9.2003 to 25.9.2003, running into five sheets. He further deposed that it is a computerized generated record and it is correct as per their system. He further deposed that he has not brought the record in respect of the Sessions Case No: 73/10 Page 20 of 87 21 aforesaid mobile number as the same is not available in their system now. He proved on record the copy of the record as Ex. PW 22/A consisting of five sheets.

45. PW 23 Dr. Amarjeet Singh is the Deputy Medical Superintendent PGI MS Rohtak Haryana. He proved on record the postmortem report of deceased Tarun as Ex. PW 23/A which was prepared by Dr. Sanjiv Malhotra and also proved on record the subsequent opinion given by Dr. Sanjeev Malhotra as Ex. PW 23/B. PW 23 identified the handwriting and signatures of Dr. Sanjiv Malhotra on Ex. PW 23/A and Ex. PW 23/B.

46. PW 24 Col. A.K. Sachdeva is the Nodal Officer, Reliance Communication Ltd. He deposed that on 29092003, the call details of mobile phone No. 1135228221 in the name of customer Devender R/o H. No. 258, Khampur village, Delhi were provided to the police which is computer generated . He proved the same as Ex. PW 24/1 to Ex. PW 24/10 (running into 10 pages). He further deposed that he also provided the details of mobile No. 01132332151 in the name of Hemant Bhardwaj R/o 166 Kanjhawala, Delhi. He proved the same as Ex. PW 24/11 and Ex. PW 24/12 respectively.

47. PW 25 SI Balbir Singh is the first IO of the case. He Sessions Case No: 73/10 Page 21 of 87 22 narrated the sequence of investigation done by him. He proved on record DD No. 35A as Ex. PW 25/A, endorsement made by him on the statement of complainant Satish Bhardwaj as Ex. PW 25/B, pointing out memo at the instance of all five accused persons as Ex. PW 26/A1 to A5 and another pointing out memo at the instance of all the five accused persons as Ex. PW 26/B1 to B5 and seizure memo to the effect that the mobile could not be recovered as Ex. PW 26/C.

48. PW 26 Inspector Dharam Pal is the second IO of the case he also narrated the sequence of investigation done by him. He proved on record the pointing out memo of the space between Vandana Studio and Shivam General Store pointed out by all the five accused persons saying that there the deceased was confined and murdered as Ex. PW 26/A1 of accused Amit Sharma, Ex. PW 26/A2 of accused Amit Khatri, Ex. PW 26/A3 of accused Devender, Ex. PW 26/A 4 of accused Shiv Kumar and Ex. PW 26/A5 of accused Vivek Gaur @ Lovely. He also proved on record the pointing out memo of the place of dumping the dead body of deceased pointed out by all the accused persons as Ex. PW 26/B1 of Amit Sharma, Ex. PW 26/B2 of accused Amit Khatri, Ex. PW 26/B3 of accused Devender, Ex. Sessions Case No: 73/10 Page 22 of 87 23 PW 26/B4 of accused Shiv Kumar and Ex. PW 26/B5 of accused Vivek Gaur @ Lovely. He also proved on record the seizure memo to the effect that mobile could not be recovered as Ex. PW 26/C and application for obtaining copy of TIP proceedings as Ex. PW 26/D, seizure memo of sealed parcel containing belongings of deceased, PM report and inquest paper from PP GT Gannor as Ex. PW 26/E. He further proved on record application for getting subsequent opinion as Ex. PW 26/F, unscaled site plan of place of recovery of dead body as Ex. PW 26/G and unscaled site plan of place of murder, village Bakhtawar Pur as Ex. PW 26/H, receipt in connection of mobile phone, shoes and receipt in connection of polishing the jewellry articles of deceased produced by Satish Bhardwaj as Ex. PW 26/I, Ex. PW 26/I1 (which are two documents), Ex. PW 26/I2 and Ex. PW 26/I3 respectively and seizure memo of aforesaid three documents as Ex. PW 26/J, telephone call details of phone th th No. 9891102594 from the period of 20 September, 2003 to 26 September 2003 as Ex. PW 26/K (collectively) and FSL report as Ex. PW 26/L alongwith written request as Ex. PW 26/M.

49. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C was recorded and all the Sessions Case No: 73/10 Page 23 of 87 24 incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated in this case. No evidence in defence was led by the accused persons.

50. I have heard Ld. APP for the state ably assisted by the Ld. counsel for the complainant, counsels for the accused persons and have also gone through the records of the case.

51. It is submitted by the Ld. APP for the state ably assisted by the Ld. counsel for the complainant that on the basis of the evidence recorded and the material available on record accused persons be convicted. It is further submitted that all the accused persons hatched a criminal conspiracy and in pursuance to that conspiracy Tarun Kumar was kidnapped and a demand of Rs. 20 Lacs was made. It is further submitted that the case is based on circumstantial evidence and the accused persons had motive to kill the deceased as the ransom was not paid. It is further submitted that the prosecution has been able to prove the recovery of the articles of the deceased from the accused persons and a presumption U/s 114 of the Evidence Act can be drawn. It is further submitted that the deceased was lastly seen with accused Amit Sharma who had taken him from the college. Sessions Case No: 73/10 Page 24 of 87 25 It is further submitted by the Ld. APP that the call records of communication between the deceased and the accused persons before and after the commission of the murder is also one of the incriminating circumstances against the accused persons. It is further submitted by the Ld. APP that there is a lack of explanation of facts by the accused persons in their statements U/s 313 Cr.P.C. It is further submitted by the Ld. APP that certain facts were within the special knowledge of the accused persons onus of which was on the accused persons to discharge.

52. On the other hand, it is submitted by the Ld defence counsels that there is not even an iota of evidence against the accused persons and they have been falsely implicated. It is further submitted by the Ld. defence counsels that there is no witness of last seen. It is further submitted that all the recoveries have been planted. It is further submitted that no reliance can be placed on the call records as the same is hit by section 65 B of the Evidence Act.

53. The case is based on circumstantial evidence and the law as far as circumstantial evidence has been well settled. The principles of law governing the proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the Sessions Case No: 73/10 Page 25 of 87 26 several decisions of the Hon'ble Supreme Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance, circumstances against the accused beyond all reasonable doubt but the said circumstances must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime.

54. The above said principles deducible from the 5 principals of law laid down by the Hon' Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 which are as follows :

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra where the following observations were made:

Sessions Case No: 73/10 Page 26 of 87 27

certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distacne between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

(2) the fact 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."

55. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence and the same have been followed in Sessions Case No: 73/10 Page 27 of 87 28 Tanviben Pankajkumar Divetia Vs. State of Gujrat (1997) 7 SCC 156, Vikram Singh Vs. State of Punjab (2010) 3 SCC 56, Aftab Ahmad Ansari Vs. State of Uttaranchal (2010) 2 SCC 583, Sanatan Naskar and anr. Vs. State of West Bengal (2010) 8 SCC 249 and Mohd. Arif alias Asshfaq Vs. State ( NCT of Delhi) (2011) 13 SCC 621.

56. Now coming to the case in hand. Let me discuss the evidence in detail on the basis of which the prosecution claim to have established its case beyond doubts.

57. L A S T S E E N : PW 25 is SI Balbir Singh who is one of the IO of the case. He has deposed that on 2592003 / 26092003 on receipt of DD No. 35 A which is Ex. PW 25/A, he alongwith constable Rajbir reached to the spot i.e house No. 832 Kanjhawala where complainant Satish Bhardwaj met him and gave his statement which is Ex. PW 3/A. He further deposed that he came to know that deceased Tarun @ Chintu had attended evening classes at Satyawati College. He further deposed that he had made inquiries from the students of his class and came to know that victim Tarun was lastly seen with Amit Sharma. He further deposed that he came to know that Tarun (deceased) has also done convessing for Amit Sharma Sessions Case No: 73/10 Page 28 of 87 29 who was contesting the students election.

58. He further deposed that he had met Amit Sharma and made inquiries from him, Amit Sharma replied that he was also making efforts to search Tarun @ Chintu. He has further deposed that he had made investigation at the college of the deceased and came to know that deceased was lastly seen with Amit Sharma who was classmate of the deceased and he prepared a notice U/s 160 Cr.P.C for Amit Sharma.

59. In his cross examination on behalf of accused persons, he stated that he had made inquiries from the classmates namely Anil, Sandeep, Ashish and he also made inquiries from Amit Sharma. He also stated in his cross examination that he had not recorded the statements of above said Anil, Sandeep and Ashish. He further stated that he had not recorded the statements of class teacher of the deceased.

60. This witness in his cross examination has categorically stated that he had not stated in his statement U/s 161 Cr.P.C. that the deceased was lastly seen with Amit Sharma. It is highly surprising that when PW 25 had made inquiries from Anil, Sandeep and Ashish why their statements were not recorded. The only inference which can be drawn is that the three above Sessions Case No: 73/10 Page 29 of 87 30 mentioned must not be supporting the last seen theory of the prosecution.

61. According to the prosecution the deceased was taken to Samay Singh Market Bakhtawar Pur. There is no evidence on record to show that Amit Sharma and deceased were together in the market which is a congested place. From the entire evidence on record not even a single witness is there who could say that he had seen Amit Sharma and deceased Tarun together in the college or saw them leaving the college together or saw them in the market and for the sake of repetition this witness had not even stated in his statement U/s 161 Cr.P.C. that Tarun was lastly seen with accused Amit Sharma. The prosecution has miserably failed to prove that deceased Tarun and accused Amit Sharma were lastly seen together.

62. CALL RECORDS : It is urged by the Ld. APP for the stated assisted by Sh. Prem Kumar, counsel for the complainant that the deceased was having two mobile phones one mobile phone bearing no. 9810872071 and another 9891102594. He further urged that deceased Tarun was known to accused Amit Sharma which is evident from the call made by Tarun on 392003 from his telephone number 9810872071 to Amit Sessions Case No: 73/10 Page 30 of 87 31 Sharma at his telephone number 01135376199 at 14.07 hours. It is further submitted that it was not only Amit Sharma who was known to deceased Tarun but accused Devender was also known to Tarun. He further urged that on 24092003 Tarun made a call from his mobile number 9891102594 to accused Devender at his telephone number 35228221 at 5:30 p.m. He further urged that on 24092003, Amit Sharma made a call from telephone number 27781824 to accused Devender at his telephone number 35228221 at 9.17 hours which shows that Amit Sharma and deceased Tarun were known to each other.

63. He further urged that Devender made three important calls from his telephone number 35228221 to Amit Sharma at his telephone number 01127781824 at very odd hours on early morning of 26092003 when the kidnapping had taken place and ransom demand has been made from Tarun's mobile phone number 9891102594. He further urged that outgoing calls on 22/09/2003 at 5:32 p.m and 5:34 p.m were made from telephone number 9810872071 belonging to deceased Tarun at number 35228221 belonging to Devender which shows that they both were known to each other. Ld APP has further submitted that on 25092003 at 10:30 p.m call from 27781472 was made Sessions Case No: 73/10 Page 31 of 87 32 on the phone of accused Devender bearing No. 35228221.

64. He further urged that on 25/260903 three calls at odd hours were made from phone number 35228221 to phone number 27781824. He further urged that there has been frequent phone calls between Amit Sharma and Devender. He further urged that three calls from Tarun's mobile number 9891102594 were made to phone number 25954810 belonging to Satish Bhardwaj on 25092003 and another call was made from this mobile phone to phone number 32332151 belonging to Hemant on 25092003 at 10:04 p.m and another call was made from this number to his number 25952233 belonging to Sanjay Bhardwaj brother of Satish Bhardwaj on 26092003 at 11:49 a.m.

65. It is further urged by the Ld. APP that the call records proved on record clearly shows that Amit Sharma, Devender and Tarun were known to each other. He further submitted that the calls were made by accused persons from the mobile phone of Tarun and calls were also received from the relatives of the deceased on the mobile phone of Tarun. He further urged that the accused Amit Sharma and Devender were talking at odd hours which clearly shows their guilty mind.

Sessions Case No: 73/10 Page 32 of 87 33

66. On the other hand, it is submitted by the Ld defence counsel that the prosecution has failed to prove the call records as per the evidence Act as the same is hit by Section 65 B of the Indian Evidence Act. It is further submitted that even if Amit Sharma and Tarun were known to each other or they were talking on phone prior to the incident that does not prove that he has been kidnapped and killed by the accused persons. It is further submitted by the Ld defence counsel that according to the challan filed in the court prior to the arrest of accused Amit Sharma he was called in the police station many times for inquiry into this case.

67. It is further submitted by the Ld defence counsel that when according to the prosecution accused Amit Sharma and Devender were talking on 26092003 at 4:06 a.m, 4:13 a.m and 6:09 a.m., coupled with the fact that Amit Sharma was called in the police station and was being inquired about this case so definitely if they were involved in the crime they would have destroyed every evidence in their possession.

68. As far as this contention of Ld defence counsel is concerned, I will take up this at the time of discussing recovery alleged to have been effected at the instance of accused Sessions Case No: 73/10 Page 33 of 87 34 persons.

69. In order to appreciate the evidence of call records and how far they connect the accused persons with the crime evidence of PW 3, PW 9, PW 20, PW 21, PW 22, PW 24, PW 25 and PW 26 are relevant.

70. First of all let me deal with the contention of the Ld defence counsels that the call records cannot be looked into as they are hit by Section 65 B of the Indian Evidence Act and the proof of electronic document cannot be accepted. The relevant witnesses who have proved on record the call records are PW 21 Pawan Singh who is the Nodal Officer with Idea Cellular Ltd. He had deposed as follows : "I was posted as Nodal Officer from October 2005. Prior to 2005, I joined as Assistant Nodal Officer since December 2002 in Idea Cellular Ltd. I have brought the call details record of mobile number 9891102594 dated 692003 to 25092003. The certified copy of the call details is exhibit PW 21/A and it bears my signatures at point A. It contains the details of the call both incoming and out going."

71. Another witness of call records is PW 22 Sh. R.K. Singh, Nodal Officer Bharti Air Tel Ltd. He deposed as follows "I am working with Bharti Airtel Ltd since May 1997 as Nodal Sessions Case No: 73/10 Page 34 of 87 35 Officer. I have seen the record of mobile phone No. 9810872071 from 192003 to 25092003. It is computerized generated record and it is correct as per our system. I have not brought the record in respect of the above said mobile number as the same is not available in our system. The copy of the record is Ex. PW 22/A consisting 5 sheets which I have signed at point A.

72. The another witness of call record is PW 24 Col. A.K. Sachdeva. He has deposed that "he was working as Nodal Officer Reliance Communication Ltd on 2992003. Call details of mobile number 1135228221 in the name of customer Devender were provided to the police which is computer generated and are Ex. PW 24/1 to Ex. PW 24/10. He further deposed that he has also provided the details of mobile No. 01132332151 in the name of Hemant Bhardwaj which are Ex. PW 24/11 and Ex. PW 24/12. He further deposed that he certified that these are true and correct details as generated from the computer.

73. In cross examination he has denied that no such record are there in their computer. He further stated in his cross examination that he has not certified the call details of Ex. PW 24/1 to Ex. PW 24/10 which have been generated from the Sessions Case No: 73/10 Page 35 of 87 36 true/original record from the data of our computer. He further admitted in his cross examination that he had not given certificate that Ex. PW 24/11 is generated from the original lying in the computer of the company and is true copy of the same."

74. It has been held by our own Hon'ble High Court in Criminal Appeal bearing No. 927/2008 Brij Kishore and Another Vs. State "that the documents in electronic form has to be proved either by means of a certificate issued by the person/authority in whose custody the device in which the document was stored in an electronic form that the print out generated has been through the device and reflects an information stored in electronic form in the ordinary course or through the testimony of the person who generates the print out from the device in which the same is stored."

75. Reliance can also be placed upon: (1) Rakesh Kumar Vs. State 183 (2009) DLT 658, (2) Tarseen Kumar Vs. Stae (Delhi) 1995 Crl. L.J. 430 SC and (3) A.M. Perumal Vs. Star Tours and Travels 2011 (2) JCC (NI) 124.

76. Going by the evidence on record I find that the prosecution has not cared to satisfy the condition U/s 65 B (2) of the Evidence Act. Neither exhibits PW 21/A, PW 22/A, PW Sessions Case No: 73/10 Page 36 of 87 37 24/1 to Ex. PW 24/10, Ex. PW 24/11 and Ex. PW 24/12 contains a certificate as contemplated U/s 65 B (4) of the Indian Evidence Act. Neither the person who took out the print copy was examined nor the exhibits PW 21/A, PW 22/A, PW 24/1 to Ex. PW 24/10, Ex. PW 24/11 and Ex. PW 24/12 have been authenticated by any person. So in view of the matter no reliance can be placed on these exhibits.

77. Recoveries at the instance of the accused persons:

According to the prosecution all the accused persons made their disclosure statements. It is submitted by the Ld. APP assisted by the counsel for the complainant that in pursuance to the disclosure statements articles of deceased Tarun have been recovered from the accused persons and the recoveries of the personal items of deceased Tarun connects the accused persons with the crime.

78. The details of the recoveries alleged to have been effected from the accused persons are as follows :

   Accused                      Recovery                                 Witnesses                                           Exhibits 

                                                                            of Recovery 

   a.  Amit Sharma        (i)Gold Chain             SI Balbir Singh PW 25               PW 16/E
                                        with locket              SI Ram Kanwar PW 16            dt. 21003
                                                                Ct. Ved Prakash(not examined)       

                                    (ii)Mobile phone                                                           PW 16/D


Sessions Case No: 73/10                                                                                                          Page 37 of 87 
                                                                       38

                                       belonging to his                 do                                dt. 21003
                                        brother. 

                                  (iii) Black Purse                                                             PW Z/C
                                        of deceased                      do                              dt. 31003 
                                        from Johar

                                  (iv) Blood stained                                                         PW 16/Z
                                        bag and grams                 do                              dt. 21003 
                                        from Shivam 
                                  General Store. 
                                                           
     b. Amit Khatri          (i)Gold ring from his         SI Balbir Singh PW 25        PW 16/I
                                          jeans pocket             SI Ram Kanwar PW 16    dated 21003 
                                                                               Ct.Ved Prakash 
                                                                                (not examined)

                                    (ii)Blood stained                                                         PW 16/J
                                        jute bag from                       do                       dated 21003
                                        Maruti Car.
                                  (iii) Mobile Phone                                                        PW 26/C
                                        of Tarun (which                  do                     dated 4102003 
                                        could not be                                            (non seizure memo) 
                                        recovered)   

                                  (iv) Pointing out of                                                       PW 16/ZB
                                        place by throwing                       do                      (undated)
                                        a stone of same 
                                       weight as that of mobile
                                       of deceased Tarun.

                                    (v)Blood stained                                                    PW 16/K
                                        plywood                                      do               dated 21003

                                   (vi) Scooter                                                           PW 16/M
                                                                                                          dated 21003
                                                               
                                  (vii) Maruti car                                                           P8
                                        belonging to his                           do           dated 2102003 
                                        sister  
                                           


Sessions Case No: 73/10                                                                                                         Page 38 of 87 
                                                                     39

   (c.) Shiv Kumar        (i) Shoes                       SI Balbir Singh PW 25         PW 16/Y
                                                                        SI Ram Kanwar PW 16      dt. 2102003
                                                                         Ct. Ved Prakash 
                                                                        (not examined)

   (d) Vivek Gaur         (i) Titan watch                SI Balbir Singh PW 25         PW 16/X 
                                      from right hand            SI Ram Kanwar PW 16        dt.21003
                                      wrist.                            Ct. Ved Prakash 
                                                                            (not examined)   

   (e)Devender            (i) Mobile phone           SI Balbir Singh PW 25        Ex. PW 16/W
                                       having No.                SI Ram Kanwar PW 16        dt.21003 
                                       35228221from              Ct. Ved Prakash 
                                       calls have allegedly       (not examined) 
                                       been made to mobile 
                                      No. 9891102594 on
                                     22092003 and            
                                     24092003.                                    

79.              According   to   the   prosecution,     the   accused   persons

made disclosure statements. Disclosure statement of accused Amit Sharma is Ex. PW 16/C, disclosure statement of accused Amit Khatri is Ex. PW 16/H, disclosure statement of accused Vivek Gaur is Ex. PW 16/T, disclosure statement of accused Shiv Kumar is Ex. PW 16/U and disclosure statement of accused Devender Kumar is Ex. PW 16/V. All the disclosure statements have been witnessed by SI Balbir, SI Ram Kanwar and Ct. Ved Prakash and were recorded on 2102003.

80. It is urged by the Ld. APP that the accused persons are totally silent about the recoveries effected from them and no explanation is offered even in the statement U/s 313 Cr.P.C. It is Sessions Case No: 73/10 Page 39 of 87 40 further submitted by the Ld APP that the following suggestions was given to PW 14 in his cross examination "wrist watch, chain, pair of shoes, ring, purse and some other documents were on the dead body of the deceased." According to the Ld APP this suggestion in the cross examination shows that all the articles were with the deceased prior to his death.

81. On the other hand, it is submitted by the Ld defence counsels that all the recoveries have been planted upon the accused persons and they have been falsely implicated. It is further submitted that father of the deceased remained with the police from 2592003 to 29092003, and till 29092003, the father of the deceased had not uttered a single word regarding the missing articles and when the dead body was recovered only then he gave his statement Ex. PW 3/B mentioning about the articles which were worn by his son. It is further urged that even then he had not uttered a single word about the black purse alleged to have been recovered at the instance of accused Amit Sharma and also about the chain having locket engraved with Shriram on one side and Tarun on the other side. It is further urged that IO has not joined any public person at the time of recoveries and at the time of recording of disclosures statements, Sessions Case No: 73/10 Page 40 of 87 41 arrest, seizure and personal search when PW 3 father of the deceased was always available to the IO.

82. Ld. APP ably assisted by Ld counsel for the complainant has relied upon Earabhadrappa Vs. State of Karnataka 1983 Criminal Law Journal 846; Baiju Vs. State of MP AIR 1978 S.C. 522 and Pallab Mukherjee Vs. State of West Bengal 2006 Criminal Law Journal 4682 in which the court has held as follows : "We find that confessional statement of Debasish Banerjee unfolded the entire mystery behind the prosecution case and the recovery made by the investigating officer in between arrest of Debasish Banerjee and his confessional statement completely supported the confessional statement of Debasish Banerjee and, that apart, when we take into consideration the confessional statement of Gopal Sarkar and Ashok Rai together, we find that from the confessional statements of these three appellants prosecution can certainly claim establishment of its case against all the appellants beyond any shadow of doubt.

Thus, having regard to the entire prosecution evidence both oral and documentary and with special emphasis on the confessional statement of Debasish Banerjee, Gopal | Sarkar and Ashok Rai @ Bhoda and also with special emphasis on the recovery of the gold chain and ring of Anurag form the godown of Dixit and Company at the instance of Ashok Rai @ Bhoda, we are of the considered view that prosecution successfully established a complete chain of circumstances from tis oral and documentary evidence which taken as a whole unerringly established the guilt of each and every appellant of these appeals and, that apart, the confessional statement of Debasish Sessions Case No: 73/10 Page 41 of 87 42 Banerjee clearly disclosed that he hatched the conspiracy with Bijon Barua and after kidnapping Anurag and after taking him to the godown of Dixit and Company at Salika, Howrah with the help of Ashok Rai, Gopal Sarkar and Pallab Mukherjee killed Anurag and disposed of his dead body by throwing the same in the river Ganges."

83. It is further submitted by the Ld APP assisted by the Ld counsel for the complainant that in the present case the fact discovered by the police with the help of disclosure statement and the recovery of the incriminating articles on the strength of such statement is that it was the accused persons who had concealed those articles at the hidden places. It is further submitted by him that it is immaterial that such statement of accused is inculpotary because section 27 of the Evidence act renders even such inculpotary statements given to a police officer admissible in evidence by employing the words "whether it amounts to confession or not."

84. The earlier part of the disclosure statements of accused persons regarding the motive of crime and admission regarding killing of the deceased are inadmissible in evidence by virtue of Section 25 of the Indian Evidence Act since a confession made before a police officer in police custody is inadmissible under the said provision. The police had already recovered the dead body Sessions Case No: 73/10 Page 42 of 87 43 prior to the recording of the disclosure statement of the accused. So only that part of the statement which led to the discovery of the articles pursuant to their statements would be admissible in evidence.

85. In Prabhoo Vs. State of UP AIR 1963 S.C. 1113. Supreme Court relied on the pronouncement of the privy counsel in para 9 which reads as follows. :

"9. ....Section 27 provides that when any fact is deposed to and disclvered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discover may be proved. In Pulukuri Kotayya Vs. King (74 Ind App. 65: AIR 1947 PC 67) Emperor the Privy Council considered the true interpretation of S. 27 and said:

"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my hosue" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the information to his knowledge, and if the knife is proved to Sessions Case No: 73/10 Page 43 of 87 44 have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A.; these words are inadmissible since they do not related to the discovery of the knife in the hosue of the informant. (p 77 of Ind. App) : (at p. 70 of AIR)."

We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been sued to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his.

10. Therefore, the question before us is this. Is the production of the blood stained axe and clothes read in the light of the evidence regarding motive sufficient to lead to the conclusion that the appellant must be the murderer ? It is well settled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused persons and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated Sessions Case No: 73/10 Page 44 of 87 45 by the SubInspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconsistent with his innocence. We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the shortout of ascribing certain statements to the appellant which were clearly inadmissible. "

86. On this very issue in Chhotu Singh Vs. State of Rajstahn 1999 SCC (Cri) 461 the Supreme Court observed that the statement made by the appellants before the investigating officer is admissible U/s 27 of the Evidence Act only to the extent that it proves that he had buried the dead body in the pit knowing that the offence of murder was committed but does not in the absence of any other material conclusively prove that he committed the murder.

87. The recoveries effected at the instance of the accused persons in pursuance of their disclosure statements are mentioned hereinabove in the judgment. Now it is to be seen that in the circumstance of this case how far the recoveries are believable and can be relied upon in order to connect the accused persons with the crime.

88. Recoveries from Accused Amit Sharma : Accused Amit Sharma was the first one to be arrested by the police on Sessions Case No: 73/10 Page 45 of 87 46 2102003 and he made a disclosure statement which is Ex. PW 16/C and unfolded the entire mystery behind the prosecution case. His arrest led to the recoveries of the articles of the deceased and arrest of other accused persons who also made their disclosure statements and got effected the recoveries.

89. According to the disclosure statements of the accused persons, accused Amit Sharma was called by the police for inquiry into this case and therefore they all panicked and killed Tarun. During the course of the arguments, it was urged by the Ld defence counsel that it has come in the charge sheet that accused Amit Sharma before arrest was called in the police station and inquiries were made from him and even PW 25 has stated so in his testimony. It is further urged by the Ld defence counsel that the case of the prosecution, is unfolded by the disclosure statement of the accused. It is further submitted that it is highly improbable that accused persons would have retained the articles alleged to have been recovered at their instance knowing that police have started investigating the matter and Amit Sharma is a suspect.

90. According to the prosecution, accused Amit Sharma got recovered one gold chain with locket with Shriram engraved one Sessions Case No: 73/10 Page 46 of 87 47 one side and "Tarun" on the other side from his house. It has already been observed hereinabove that statement of father of deceased are Ex. PW 3/A and Ex. PW 3/B and the first DD register about the missing of Tarun which is Ex. PW 25/A and its DD No. is 35 A. Nothing has been mentioned in Ex. PW 3/A and Ex. PW 25/A about the gold chain and locket and in statement Ex. PW 3/B the father of the deceased has mentioned abut a chain and a locket and that too the description is not complete. Even in the TIP proceedings there is no mention of any locket being produced in the Court and mixed with the original chain and locket of the deceased. The father of the deceased continuously remained with the police from 2592003 to 2992003 but it is not understood why he suddenly vanished from the seen. The accused persons were arrested on 2102003, their disclosure statements were recorded on 2102003 and recovery of chain and locket was effected from Amit Sharma on 2102003 and the witness to all these proceedings are PW 25 SI Balbir, PW 16 SI Ram Kanwar, PW Ct. Ved Prakash (not examined as a witness in the Court) and PW 26 Inspector Dharampal. According to PW 25 SI Balbir Singh after the disclosure statement of accused Amit Sharma they proceeded for his house Sessions Case No: 73/10 Page 47 of 87 48 and the accused from an iron box lying in the room on the second floor of his house got recovered one Gold chain with locket which was seized by the IO. It has come in the cross examination of this witness that the IO had requested some persons to join the investigation but none agreed. Here I would pause for a moment because it is not understood why the father of the deceased who had been with the police all along from 2592003 to 2992003 was not asked to join the investigation.

91. PW 16 SI Ram Kumar who is the one of the witness to the recovery has deposed that accused Amit Sharma led the police party to the first floor of his house and he took out an iron box from the room and from that box he took out a gold chain with locket which was kept in a match box and converted into a pullanda. There is some contradiction in the testimony of these witnesses with regard to the floor on which the box was lying and all the witnesses have not stated in unison about the position of the box from where the chain and locket were taken out by accused Amit Sharma. Even if this contradiction is overlooked then also in my opinion, the recovery of gold chain with locket is not above board because : 1. there is no mention of chain and locket in statement Ex. PW 3/A, DD Ex. PW 25/A, correct description of the locket in statements Ex. PW 3/B, non mention Sessions Case No: 73/10 Page 48 of 87 49 of lockets in TIP proceedings Ex. PW 12/B and most importantly when the accused was called in the police station prior to his arrest why he would retain the chain and locket with him when as per the case of the prosecution itself the accused persons had enough intelligence to dispose off the dead body at a distant place so as to save themselves. And non joining of a public witness in the facts of the present case at the time of recovery is also fatal in my opinion. During the course of the arguments, it was urged by the Ld. APP that if the IO would have joined the father and relatives of the deceased as a witness to the recovery then it could have been said that they are the interested witnesses. I do not subscribe to the view of the Ld. APP. It is seen daily that public witnesses seldom comes forward to join the investigation. In the instant case the father of the deceased and other relatives were available to the police. The IO could have joined them and then should have left the rest of the things on the court to see whether the testimony of those witnesses should be believed or not.

92. RECOVERY OF BLACK PURSE OF DECEASED AT THE INSTANCE OF ACCUSED AMIT SHARMA: Accused Amit Sharma made a disclosure statement Ex. PW 16/C and disclosed Sessions Case No: 73/10 Page 49 of 87 50 that he had thrown the purse of the deceased in the village johar (pond) and he could get the same recovered. According to the prosecution on 3102003, accused Amit Sharma took the police party to village Tikri Khurd, Delhi and pointed towards a Johar (pond) stating that on 26092003, after taking out the black colour purse he had thrown the same in the said johar. Accused Amit Sharma according to the prosecution threw a stone of the same weight as that of the purse in the middle of the pond so as to point out the place where the purse was thrown by him.

Thereafter PW 4 Abdul Sattar jumped in the Johar and retrieved the purse. The recovery memo of purse is Ex. PW 4/A. According to this recovery memo PW 4 Abdul Sattar after much effort recovered the purse which was lying at the bottom of the johar (pond) buried in the mud. The pointing out memo of the purse is Ex. PW Z/C. It is PW 3 who has disclosed to the police as to what articles were with his son Tarun when he left the house and what type of clothes he was wearing. He has made two statements to the police which are Ex. PW 3/A and Ex. PW 3/B. He has also lodged a DD No. 35/A which is Ex. PW 25/A. As already discussed hereinabove, there is no mention of any article in DD No. 25A. In statement Ex. PW 3/A there is no Sessions Case No: 73/10 Page 50 of 87 51 mention of any articles of Tarun. Statement of PW 3 was also recorded on 2992003, which is Ex. PW 3/B in which for the first time he had disclosed about the articles which were with his son when he left the house. The relevant portion of his statement Ex. PW 3/B reads as follows "shoes sports on both the foot, one golden chain with Ram Locket, one mobile phone, one pocket diary containing NIIT I card, Icard of Satyawati College and some other documents are missing." In his statement Ex. PW 3/B, for the first time PW 3 speaks about the articles on the person of his deceased son. He does not speak of any black purse in his statement Ex. PW 3/B. He talks about a pocket diary containing NIIT Icard, Icard of Satyawati College and some other documents. It cannot be said that PW 3 does not know the difference between black purse and a pocket diary. He was the best person to tell about the clothings of the deceased and the items carried by the deceased. So as discussed hereinabove, he has not uttered a single word about the "black purse." From where the prosecution has introduced this black purse remains a mystery. So in these circumstances, the recovery of black purse at the instance of accused Amit Sharma is totally unbelievable.

93. Recovery of Blood stained bag and grams Sessions Case No: 73/10 Page 51 of 87 52 from Shivam General Store. : According to the prosecution, accused Amit Khatri and Amit Sharma led them to Shivam General Store and Vandana Studio in Samai Singh Market in village Bakhtawar. Both the accused persons pointed out their associates namely Devender Kumar, Shiv Kumar and Vivek who were then arrested by the IO. According to PW 16 SI Ram Kumar, accused Amit Sharma got recovered one bag which was containing Kabuli Chana from Shiva General Store, Samai Singh Market. He further deposed that the bag was having some blood stains and the kabuli chana were transferred in another bag and the said bag was seized vide memo Ex. PW 16/Z. In cross examination this witness has stated that he does not recollect if any public person was associated in the investigation in village Bakhtawar Pur. He has further stated that they reached the market at about 8 p.m and at that time some shops were lying closed and some were lying open. He further stated that public persons were available in the market and he was not aware if IO had made request to any public person to join the investigation. He further stated in his cross examination that IO had inquired about the ownership of shop of Vandana Studio. He has further stated in his cross examination that he did not know if the IO had Sessions Case No: 73/10 Page 52 of 87 53 called the owner of the shop or not. He further stated that he did not know if Vandana Studhio was having any number. He further stated in his cross examination that he did not recollect the nature of shops which were situated on both sides of the Vandana Studio. He denied that he had not gone to Vandana Studio or that nothing was recovered from Shiva General Store at the instance of the accused persons. He denied the suggestion that there was no shop under the name and style of Shiva General Store. He stated that he did not recollect if the empty bag was arranged from inside the shop or from out side the shop to remove the grams of the bag on which the blood stains were found. He denied the suggestion that in the shop chanas were not available. He denied the suggestion that there was no blood on the walls of Shivam General Store. He further denied in his cross examination that neither any material was seized from the shop nor any investigation was carried out. He further stated that one knife was available in the shop itself with which the blood from the wall was scratched, and thereafter seized. He further stated that he could not recollect the name of the person who prepared the seizure memo of the grains and plaster / scratched blood spots.

94. According to the prosecution the shops belonged to Sessions Case No: 73/10 Page 53 of 87 54 accused Devender and accused Shiv Kumar. Now in his further cross examination on behalf of accused Devender he has stated that the disclosure statement of accused Devender was recorded at the place of arrest which is the shop of accused Devender. He further stated that he does not recollect that in whose hand writing the disclosure statement of accused was recorded. However, there is no suggestion to this witness that the shops in question i.e Shivam General Store and Vandana Studio did not belong to accused Devender and Shiv Kumar. But from the testimony of this witness he appears to be totally ignorant about the proceedings conducted at the spot.

95. PW 25 SI Balbir Singh has also corroborated PW 16 to the extent that on reaching Shivam General Store and Vandana Studio in Samai Singh Marekt Village Bakhtawar Pur both the accused persons i.e. Amit Sharma and Amit Khatri pointed towards Devdnder Kumar, Shiv Kumar and Vivek Gaur who all were arrested. He has further deposed that accused Amit Sharma took out a bag containing grains from Shivam General Store and this bag was having blood stains. He further deposed that the grains were put in another bag and gunny bag having blood stains was seized vide memo Ex. PW 16/Z. He has further Sessions Case No: 73/10 Page 54 of 87 55 deposed that during inspection of Shivam General Store some blood stains were present at the wall of the store so the IO got the said wall photographed and scratched the blood stains. In his cross examination on behalf of accused Amit Sharma this witness has stated that IO had contacted the owner of Vandana Studio and Shivam General Store. He further stated that their statements were recorded and documents were obtained. He further stated that he cannot tell the name of the owner of Shivam General Store and Vandana Studio. He further stated in his cross examination that Amit Sharma had handed over a jute bag after taking it out from Shivam Store. He further stated in his cross examination that Vandana Studio and Shivam General Store are adjacent to each other but he could not tell whether Vandana Studio was on right or left of Shivam General Store. He denied the suggest that nor recovery was effected from Vandana Studio and Shivam General Store.

96. PW 26 Inspector Dharampal Singh is the main IO of the case. He deposed that they reached Vandana Studio situated in Samai Singh Market where accused Devender Kumar, Shiv Kumar and Vivek Gaur were arrested at the instance of accused Amit Sharma and Amit Khatri. He further deposed that accused Sessions Case No: 73/10 Page 55 of 87 56 Amit Sharma produced one bag having blood stains and containing grams which he seized vide memo Ex. PW 16/Z. He has further deposed that he noticed some blood stains over the wall so he scratched the plaster and seized the same vide Ex. PW 16/ ZA. He further stated that on 18122003, he recorded the statement of Karan Singh, owner/ landlord of Shivam General Store cum Vandana Studio which were on rent and in possession of accused Shiv Kumar and accused Devender Kumar. He further stated that he recorded the statement of Karan Singh U/s 161 Cr.P.C. He further stated that he did not collect the document of ownership of Vandana Studio as the same were not required. He denied that Vandana Studio did not belong to accused Devender. He further stated it to be as correct that the particulars about the ownership or having in possession of Shivam General Store and Vandana Studio were not furnished by any of the accused persons. He denied the suggestion that none of the accused had any concern with Shivam General Store and Vandan Studio. He admitted that there is no proof with respect to the business being carried out in these shops belonging to the accused persons. He denied that accused Devender, Shiv Kumar and Vivek were not present at the shops. Sessions Case No: 73/10 Page 56 of 87 57

97. It was vehemently argued by the counsels for the accused persons that neither the Shivam General Store nor Vandana Studio were on rent with accused Devender and accused Shiv Kumar. It was further argued by the Ld defence counsel that no document have been placed on record to show the tenancy / occupation of the shops by the accused persons and even the landlord has not supported the case of the prosecution. It has further been argued that there is total discrepancy in the testimony of the recovery witnesses as regard the recovery from the shops is concerned. It is further argued that there is nothing on record to show as to who opened the shop, who locked the shop and in whose possession the keys of the shops remained and whether the IO ever preserved the scene of crime.

98. According to prosecution PW 17 Karan Singh is said to be the owner of the concerned two shops situated in Samai Singh Market. This witness has categorically stated that he had given the shops on rent to one Arun about 810 years ago which were lateron vacated by him after PW 17 gave an application in the Court in Tis Hazari. This witness was declared hostile by the Ld. APP and in his cross examination he stated that he had not Sessions Case No: 73/10 Page 57 of 87 58 made any statement to the police. He further denied that he had made a statement to the police wherein he had stated that the two shops were given on rent to accused Devender and accused Shiv Kumar. He further stated in his cross examination by the Ld. APP that he does not know Devender and Shiv Kumar. So he could not say about their presence in the court.

99. Now according to the prosecution accused Amit Khatri and Amit Sharma had taken the police party to the shops and got the remaining accused persons arrested from there. According to PW 25 accused Amit Sharma got recovered one blood stained bag containing Chanas. This all happened on 2102003. In cross examination this witness has categorically stated that IO had contacted the owners of the shop and their statement were recorded and IO collected the documents. However, he failed to recollect the names of owner of Vandana Studio and Shivam Store. Meaning thereby what appears from his testimony is that the owner came to the shop and IO recorded his statement on 2102003 which has not been stated by the IO.

100. PW 16 is another witness to the recoveries effected from Vandana Studio and Shivam General Store. This witness in his cross examination has stated that IO had inquired about the Sessions Case No: 73/10 Page 58 of 87 59 owner ship of shop of Vandana Studio. He has further stated that he does not know if the IO had called the owner of the shop or not. Now PW 16 and PW 25 the two witnesses of the recoveries which were effected on 2102003 from the shops are contradicting each other with regard to the presence of the owner of the shop and recording of the statement of the owner.

101. The another important witness is PW 26 the main IO himself. He stated in his examination in chief that on 18122003, when he reached at village Bakhtawar Pur, there he had met PW 17 Karan Singh, owner of the shop who then disclosed him about the tenancy of the accused persons and recorded his statement U/s 161 Cr.P.C. So from this part of the statement of this witness, it is clear that he for the first time met the owner of the shop on 18122003 whereas according to PW 25 on 2102003 i.e the day of the recovery in the shop the owner was there, the documents were taken by the IO and inquries were made from the owner. Whereas PW 16 has shown his total ignorance about the presence of the owner at the shop on 2102003. Though according to him IO had made inquries about the owner. PW 17 as observed hereinabove who is the owner of the shop has not supported the case of the prosecution on the Sessions Case No: 73/10 Page 59 of 87 60 aspect of tenancy/possession of the accused persons.

102. According to the prosecution the two shops were the scene of crime. In the entire testimony of PW 26 there is no whisper that after completing the proceedings in the shops whether they were left open or they were locked . If they were locked to whom the keys were handed over after the recoveries and if they were left open why the scene of crime was left open, there is no explanation on record. The prosecution thus has failed to prove that the shops belonged to accused Devendeer and Shiv Kumar.

103. It was also argued by the Ld defence counsels that the accused persons were lifted from their respective houses and the manner of their arrest also throws doubt on the case of the prosecution. It is further urged that it is highly probable that the accused persons would have got themselves arrested like sitting ducks and they would not have made any effort to escape on seeing the police. According to the case of the prosecution the three accused persons namely Shiv Kumar, Devender and Vivek Guar were sitting outside the shop when they were arrested. According to PW 16 the police party had parked their vehicle outside Vandana Studio and the accused persons were Sessions Case No: 73/10 Page 60 of 87 61 present in the said shop from where they were arrested. But according to PW 25 all the three accused persons wee sitting in front of the aforesaid shop. PW 26 has not uttered a single word as to whether the accused persons were present inside the shop or they were sitting outside the shop as stated by PW 16 and PW 25. This witness has stated that accused persons were overpowered by the police officials when they reached Samai Singh Marked Vandana Studhio Bakahtawar Pur. So to my my mind all the witnesses are not speaking in one tone about the manner of the arrest of the accused persons namely Devender, Shiv Kumar and Vivek.

104. According to the case of the prosecution accused Amit Sharma had got recovered a bag of Chana from Shivam General Store which according to the prosecution had blood stains on it.

105. According to PW 25, it was a gunny bag which had blood stains at its bottom. This bag was shown to this witness at the time of his examination in the court. What was shown to the witness was a plastic bag which was recovered at the instance of accused Amit Sharma and according to this witness the bag was having blood stains and about 4 Kg of chanas. The bag is Ex. P21.

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106. According to PW 16 accused Amit Sharma got recovered one bag which was containing Kabuli Chana from Shivam General Store. The bag was having some blood stains and Kabuli Chanas were transferred in another bag. According to this witness the bag of kabuli chana and the blood stained bag were kept in separate parcel. During his testimony in the court, this witness was not shown the bag alleged to have been recovered at the instance of accused Amit Sharma from Shivam Genral Store.

107. PW 26 is the IO of the case. According to PW 26 accused Amit Sharma produced one bag having black grams. The bag was having blood stains which was seized by him. He also identified the said bag as a plastic bag of white colour which is Ex. P21. Now according to these three witnesses, one was not shown the bag, one witness is saying it was a gunny bag, the IO is saying it was a bag and what has been shown to them and sent to the FSL is a plastic bag. None of the witness have stated that it was a plastic bag in which the chanas were found and subsequently sent to FSL. The FSL report is Ex. PW 26/L and the plastic bag is Ex. 6. As per the report human blood could not be detected on this exhibit.

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108. So to sum up first of all the prosecution has failed to prove that the shops belonged to the accused Devender and Shiv Kumar; there are major contradictions in the testimonies of the recovery witnesses as far as the recovery from Amit Sharma is concerned; manner of arrest of the accused persons is doubtful; IO had not joined any public persons though it is on record that public persons were present there; it is also not clear whether it was a gunny bag or a plastic bag which was recovered from the shop having chanas. The prosecution should have come out clearly whether it was a gunny bag or a plastic bag or what type of bag was sent to the FSL. No human blood was found on the alleged plastic bag Ex. 6 sent to FSL. I have also gone through Ex. PW 16/Z which is the seizure memo of the bag which also does not define whether it was a plastic bag or gunny bag. This is assuming importance because tenancy/possession of the shop in the occupation of the accused person is doubtful and the witnesses i.e PW 16, PW 25 and PW 26 are also not speaking in unison about the type of bag which was exactly found containing the chanas. So in these circumstances the recovery of the blood stained bag and grams (chana) at the instance of accused Amit Sharma is highly doubtful.

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109. RECOVERIES FROM AMIT KHATRI : Accused Amit Khatri also made a disclosure statement and got recovered a gold ring with red stone from his jeans pocket vide memo Ex. PW 16/I. He also got recovered blood stained jute bag from Maruti Car bearing No. DL3CT 1804 vide memo Ex. PW 16/J. He also got recovered blood stained plywood from Maruti Car No. DL 3 C T 1804 vide memo Ex. PW 16/K. He also got recovered one scooter bearing No. HR 10 E 6665 vide memo Ex. PW 16/M.

110. Recovery of gold Ring from Amit Khatri : According to PW 16 who is one of the recovery witness deposed that accused Amit Sharma led the raiding party to the house of accused Amit Khtri at Tikri Village. Accused Amit Khatri met the police party at the door of his house and he was overpowered. His personal search was conducted vide memo Ex. PW 16/G. He further deposed that accused Amit Khatri took out one ring from the pocket of his pant which was seized vide memo Ex. PW 16/I. In the personal search memo of Amit Khatri only Rs. 115/ were recovered. PW 26 who is the IO of the case has also deposed on the same lines. PW 16 in his cross examination has stated that the house of accused Amit Khatri was situated in a populated area and neighbours were not associated in the interrogation. He Sessions Case No: 73/10 Page 64 of 87 65 denied that the ring was planted on accused Amit Khatri. It is submitted by the counsel for the accused that as per the case of the prosecution the accused Amit Sharma before his arrest was being interrogated by the police and it is highly improbable that he would have not disclosed this fact to his other associates. He further submitted that nobody would keep an incriminating article with him when he knows that the police is at his look out. He further submitted that there is variance in the recovery memo and the personal search memo and relied upon Criminal Appeal No. 479/1997 Chatpal @ Satpal Vs. State and Chait Ram Vs. State and Narayan Vs. State wherein it has been held "that the personal search memo does not mention any watch being recovered on the personal search being conducted. Therefore the same is at complete variance with the seizure memo and therefore the recovery of watch becomes doubtful and reliance cannot be placed on the said recovery."

111. It is further submitted by the Ld defence counsel that no public witness was joined by the IO therefore the recovery is doubtful and he relied upon State of Punjab Vs. Swaroop Singh 1998 (1) JCC (SC) 57. He further urged that mere recovery of ring is not sufficient to hold the appellant guilty of crime and Sessions Case No: 73/10 Page 65 of 87 66 cannot be inferred that he was either present at the seen of crime or had participated therein and relied upon Jasmer Singh Vs. State of Delhi 2007 (4) JCC 2861.

112. According to PW 25 and PW 26 accused Amit Khatri was arrested, then his personal search was taken and thereafter he made a disclosure statement and then the ring was seized. It is highly surprising that when the personal search of the accused was taken why the ring which was lying in his jeans pocket was not found. On personal search only Rs. 115/ is said to have been recovered at the time of search. Witnesses of the seizure memo and personal search memo are the same. In the instant case the personal search memo is at complete variance with the seizure memo. So the recovery becomes doubtful. There is one more aspect of this recovery. It is the admitted case of the prosecution that all the accused persons knew that Amit Sharma was being interrogated by the police with regard to the missing of Tarun. So it is extremely unlikely for perpetrator of the crime to carry the ring in his pocket for about 56 days. It also does not strike to logic why would one carry a gold ring every time in once's pocket or it was that accused Amit Khatri was waiting for the police to arrive at his house and arrest him with the ring in his Sessions Case No: 73/10 Page 66 of 87 67 pocket. In these circumstances, the possibility of the golden ring not having been recovered from the accused or being planted on him cannot be ruled out.

113. Recovery of Blood stained jute bag from Maruti Car; blood stained ply board from the Maruti car and Maruti Car belonging to his sister at the instance of accused Amit Khatri. : According to the case of the prosecution, the accused persons had disposed off the dead body of Tarun by keeping it in a jute bag (bori) and then keeping the said jute bag in the dickey of the car over another jute bag which was got recovered by accused Amit Khatri seizure memo of which is Ex. PW 16/J. According to the case of the prosecution the dead body was disposed off by the accused persons in Maruti 800 white car having registration No. DL 3 C T 1804 which belonged to the sister of accused Amit Khatri. The blood stained jute bag was recovered on 2102003, and it is to be kept in mind that the dead body was disposed off some time on 26092003.

114. PW 19 is Meena who is the registered owner of the above said Maruti Car. She has deposed that accused never took this car from her or from her inlaws. This witness was declared hostile and in her cross examination, she denied having Sessions Case No: 73/10 Page 67 of 87 68 made statement mark PW 19/A dated 14102003 U/s 161 Cr.P.C to the police. Let us see what the recovery witnesses have to say on this aspect. PW 16, SI Ram Kumar, is one of the recovery witness of the blood stained gunny bag. In his examination in chief he has stated that accused Amit Khatri had taken the police party to a nearby place and pointed out towards a Maruti car. According to this witness the car was parked in the lane in the village. He further deposed that the dickey of the Maruti car was opened and one gunny bag with blood stains was found lying in it. He further deposed that the gunny bag was taken out from the dickey of the car and was converted into a parcel. In his cross examination he has stated that accused Amit Khatri got recovered the car which was lying parked outside his house in an open plot. He has further stated that the car was taken to a lane and there it was checked. He further stated that no public person was joined at the time of recovery of the car and also no public person was associated in the investigation when the car was taken into lane and it was searched.

115. Another witness of recovery is PW 25 SI Balbir Singh. According to this witness accused Amit Khatri led them to a vacant plot and got the Maruti car recovered from vacant plot. He Sessions Case No: 73/10 Page 68 of 87 69 has further deposed that the keys of the said car were brought from the house of accused Amit Khatri. In his cross examination this witness stated that the car belonged to the married sister of accused Amit Khatri. He also denied that the keys of the car were not recovered from accused Amit Khatri. He also denied that the car was not recovered from Tikri village. PW 26 is Inspector Dharampal who is the main IO of this case. He deposed that accused Amit Khatri led them to a plot adjacent to his house and pointed out the Maruti Car. He further deposed that keys were arranged from the house of accused Amit Khatri and when its dickey was opened one gunny bag having blood stained was noticed. He further deposed that one piece of ply board lying inside the dickey was also checked and blood stains were noticed on it. In cross examination this witness stated that the car was found parked in the open vacant plot. He admitted in the cross examination that the car belonged to the married sister of accused Amit Khatri which was released to her. He denied that he has fabricated the evidence against accused Amit Khatri.

116. Now it is clear from the record that the Maruti car in question belongs to the married sister of the accused Amit Khatri. All the PWs i.e PW 16, PW 25 and PW 26 who are the witnesses Sessions Case No: 73/10 Page 69 of 87 70 to the recovery of car and gunny bag have stated different places where the car was parked. PW 16 has not uttered a single word as to from where the keys of the car were arranged and its dickey was opened whereas PW 25 and PW 26 have stated that the keys were brought from the house of accused Amit Khatri. I pause here for a moment and ask a question to myself why the car belonging to married sister of the accused would be lying in some gali or a open space and why accused Amit Khatri would be having the keys of the said car, even after 57 days of the incident. There is no recovery memo of the keys of the car from the house of accused Amit Khatri. So the recovery of the keys from the house of accused Amit Khatri cannot be believed. The relationship between brother and sister is such that by any stretch of imagination no brother in his wildest of dreams would think of harming his sister without any justifiable reason or enmity. In the instant case, Meena who is the married sister of accused Amit Khatri is the owner of the car and living separately in her matrimonial home. So it does not strike to logic why her car would be lying for so many days at the house of accused Amit Khatri with incriminating material in it . Secondly as per the case of the prosecution itself, the accused persons came to know Sessions Case No: 73/10 Page 70 of 87 71 about the interrogation of accused Amit Sharma by the police, so in these circumstances, it is highly improbable that accused Amit Khatri would keep a blood stained jute bag in the dickey of the car of his sister knowing fully well that if something happens then his sister would be in trouble. It is also the case of the prosecution that the accused persons has caused disappearance of evidence so I fail to understand why would accused Amit Khatri would do such a thing which could unnecessarily get his sister involved that too in a murder case. So in my opinion, the recovery of the blood stained jute bag and the blood stained ply board from the Maruti car and Maruti Car belonging to his sister at his instance cannot be believed.

117. Recovery of scooter bearing No. HR 10 E 6665 at the instance of accused Amit Khatri : According to the case of the prosecution accused Amit Sharma had brought Tarun from college on this scooter which belonged to accused Amit Khatri. As already observed hereinabove that the prosecution has not been able to show that anybody saw accused Amit Sharma and deceased together while leaving the college or on the way to Shivam General Store and Vandana Studio or any body from the market in which the Shivam General Store and Vandana Sessions Case No: 73/10 Page 71 of 87 72 Studio are located. So in my opinion, the prosecution has failed to connect this scooter with the crime.

118. Recovery of Shoes at the instance of accused Shiv Kumar : According to the Ld. APP assisted by the Ld. counsel for the complainant accused Shiv Kumar made a disclosure statement on 2102003 disclosing his role in the commission of offence and factum of keeping of the shoes of deceased Tarun with him as a part of his share in the booty. It is further urged by them in pursuance to the disclosure statement the shoes were seized vide Ex. PW 16/Y.

119. On the other hand, it is submitted by the Ld defence counsels that PW 3 in his cross examination had admitted that he had not disclosed specific identification mark of the shoes of his son to the police. It is further urged that in case the arguments advanced by the Ld APP and the counsel for the applicant/accused is to be believed that the shoes came to his share as a booty then it does not strike to logic that why would anybody after participating in such a heinous crime and killing a young boy would be satisfied by keeping a pair of shoes with him without looking into the fact as to whether the same fits into his feet or not. When on the other hand the other accused persons Sessions Case No: 73/10 Page 72 of 87 73 are getting watch; gold ring; gold chain with pendent as share of the booty. It is further urged by the Ld defence counsels that as per the prosecution the accused persons were aware prior to their arrest that the police had started the investigation in this case so it was highly improbable for accused Shiv Kumar to have kept the shoes with him.

120. According to the prosecution accused Shiv Kumar produced shoes from Shivam General Store. It has already been observed hereinabove that the prosecution has failed to prove that the accused was tenant / in occupation of the said shop. The father of the deceased had made a statement on 2992003 which is Ex. PW 3/B wherein he had only stated that his son was wearing Sports shoes. He has not mentioned the brand or colour of the shoes. In the present case no specification of the shoes have been given. Moreover, it has also not come on record that the shoes were of such a size which could have fitted accused Shiv Kumar or that they were of such a costly brand that the accused would have been satisfied by keeping the shoes with him as a part of booty when on the other hand his coaccused were getting watch and gold ornaments as part of booty. So it is not believable that in these circumstance accused Shiv Kumar Sessions Case No: 73/10 Page 73 of 87 74 would be retaining such an incriminating article with him, knowing fully well that the police was interrogating Amit Sharma.

121. Recovery of Titan watch from right hand wrist of accused Vivek Gaur : It is submitted by the Ld. APP assisted by the Ld. Counsel for the complainant that recovery of Titan Watch (golden) Ex. P2 is from accused Vivek Gaur. It is further submitted that the photographs Ex. PW 14/D and E do not show that the dead body contained any wrist watch. It is further submitted that the plea of defence that the recovery of wrist watch worn by accused Vivek Gaur and seized by the police does not seem probable as no accused would wear a stolen article is also without any substances. It is submitted that it is never possible to say as to why and how a particular accused act in a particular manner. It is further submitted that there are so many possibility, the accused may have thought for selling the same but before doing so he got apprehended or he may have thought of throwing somewhere but before doing so he got apprehended. Reliance is placed upon State of H.P. Vs. Jeet Singh AIR 1999 Supreme Court 1293 in which it has been held as follows:

"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. What goes in the mind of an individual accused is not easy to gauze."

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122. On the other hand, it is submitted by the Ld defence counsel that when the accused persons had sense to destroy the evidence by throwing he dead body at a distance of 60 - 70 Km. away, it does not strike to logic that accused Vivek Gaur would keep wrist watch on his wrist. It is submitted that the wrist watch has been planted on the accused. It is further submitted that the accused has no connection with the crime and if he had any connection he could have noticed that Amit Sharma was being interrogated by the police and he would have not kept any article with him. It is further submitted that PW 13 Ramesh who has seen the body first has categorically stated in his cross examination that the dead body was having a wrist watch on the wrist therefore plantation of wrist watch cannot be ruled out. It is further submitted that there is variance in the personal search memo and seizure memo. So the recovery of watch cannot be believed. It is further submitted that PW 3 in both his statement which is Ex. PW 3/A and Ex. PW 3/B has not mentioned of Titan Watch. In Ex. PW 3/B there is no mention of wrist watch. There is no description of the wrist watch in any of the statement of PW 3 or in DD No. 35 A. PW 10 Ramesh in his cross examination admitted that the dead body was having a watch but the same Sessions Case No: 73/10 Page 75 of 87 76 does not appear in the photographs. But in my opinion simply these wordings of PW 10 does not go to discredit the recovery of the watch if other evidence of recovery produced in the court can be believed. First of all nothing has been mentioned by PW 3 in his statement Ex. PW 3/B about the watch; secondly it is highly improbable that the accused knowing that the police is on the look out would be wearing the watch even after 56 days of the incident; thirdly there is complete variance between the personal search memo and the recovery memo. Watch was not recovered in the personal search memo which is Ex. PW 16/S and there is no reference of wrist watch in this memo. According to PW 26 at the time of arrest the wrist watch worn by accused Vivek was taken into police custody. He further stated that it took about five minutes in preparing the arrest memo and personal search memo of accused Vivek. He admitted it to be as correct that there is no reference of wrist watch in the personal search memo of accused Vivek. He further stated that after about 25 minutes of the arrest and above proceedings the disclosure statement of accused was recorded. So in these circumstances, the watch was already recovered before the recording of disclosure statement and it is not admissible within the meaning of Section 27 of the Evidence Sessions Case No: 73/10 Page 76 of 87 77 Act. Moreover, there is variance between the personal search memo which does not mention about the watch and the seizure memo. PW 26 who is the main IO of this case has stated that statement of Satish Bhardwaj father of the deceased was recorded on 2992003, and in that statement Ex. PW 3/B he had given the details with respect to belongings and missing articles of the deceased. He stated it to be as correct that in Ex. PW 3/B, there is no reference of the watch worn by the deceased. He further admitted it to be as correct that Satish Bhardwaj had never stated during his investigation that he forgot to mention about the watch in his statement. So in these circumstance, the recovery of wrist watch from the wrist of accused Vivek Gaur is not believable.

123. Recovery from accused Devender : No article belonging to the deceased has been recovered at the instance of accused Devender.

124. According to the case of the prosecution the dead body was put in a jute bag and then disposed off. PW 25 has stated that he does not know whether the gunny bag in which the dead body was disposed off was taken into possession or not. Similarly, PW 26 has also stated in his cross examination that Sessions Case No: 73/10 Page 77 of 87 78 during his investigation it was revealed that the dead body was taken into a gunny bag and the gunny bag was not recovered with the dead body. So from the case of the prosecution it appears that the dead body was put in a gunny bag and both the IOs have stated that the gunny bag was not recovered. It is highly improbable that the accused persons who were going to dispose of a body would first take out the dead body from the gunny bag and then throw the body out of it. It is not understood that why and for what purpose the accused persons would have acted in such a manner. It is quite natural that when somebody goes to destroy the evidence of a dead body kept in a gunny bag, it is highly improbable that he would first take out the dead body from the gunny bag and then throw it. The most natural conduct in such circumstances would be to throw the dead body with the gunny bag itself. Otherwise there are chances of people seeing the body being taken out from the gunny bag which becomes very difficult after sometimes because the body become stiff. I do not think that any accused who is out to dispose of a dead body would ever commit such a blunder.

125. Motive : It is submitted by the Ld. APP assisted by Sessions Case No: 73/10 Page 78 of 87 79 the Ld. counsel for the complainant that the motive for the crime was demand of ransom of Rs. 20 lakh from the father of the deceased. It is urged that PW 3 succeeded in talking to the person having the mobile phone of Tarun who demanded Rs. 20 Lakh from him. It is further urged that on 2692003 PW 11 Sanjay Bhardwaj succeeded from his land line No. 25952233 in talking to the person on the other side of the telephone number 9891102594 belonging to deceased. It is further urged that the person on the other side asked whether the money has been arranged or not and he was told that the money has been arranged.

126. On the other hand, it is submitted by the Ld defence counsel that the motive in a case depending upon circumstantial evidence plays an important role as there must be a motive to commit an offence. It is further urged that the motive in the present case is demand of ransom on telephone as claimed by PW 3, PW 9 and PW 11 which could not be proved.

127. According to PW 25 and PW 26 the land line phone of the complainant was kept under observation at his residence but the prosecution has not proved on record as to who was the caller and who made the ransom demand. The prosecution has Sessions Case No: 73/10 Page 79 of 87 80 not placed on record any record of the recorded call so that the voice on the other side could have been identified. Moreover, as already observed hereinabove no reliance could be placed on the call records. Apart from this there is nothing on record which could prove the motive for the crime. The circumstance of motive may be of no significance in a given matter. However, in the instant case looking into the nature of the evidence produced by the prosecution, the motive assumes significance which has not been proved.

128. It is urged by the Ld. APP assisted by the Ld counsel for the complainant that the murder, kidnapping and ransom are the part of the same transaction giving rise to presumption U/s 114

(a) Evidence Act against the accused persons and they are the only perpetrator of the crime. He relied upon Baiju Vs. State of M.P. AIR 1978 Supreme Court 522 in which it was held that "the offences of murder of four persons were committed on the night intervening January 20 and 21, 1975, and the stolen property was recovered from the house of the accused/applicant or at his instance on January 28, 1975. The accused/applicant was given an opportunity to explain his possession, as well as his conduct in decoying Smt. Lakhpatiya and the other persons who died at his Sessions Case No: 73/10 Page 80 of 87 81 hand, but he was unable to do so the Supreme applied illustration (a) of section 114 of Indian Evidence Act and held that :

"there was ample justification for reaching the inevitable conclusion that it was the appellant and no one else who had committed the four murders and the robbery."

129. In the present case the confessional statement of Amit Sharma has unfolded the entire mystery behind the prosecution case but it is also a fact on record that before his arrest accused Amit Sharma was called in the police station and queries were made from him about this case. The recoveries from the accused persons have not been believed and there is no evidence of last seen. So in these circumstances no presumption can be drawn against the accused persons U/s 114 (a) of the Evidence Act.

130. Burden of proof and doctrine of innocence : It is urged by the Ld. APP assisted by the Ld counsel for the complainant that certain facts were within the special knowledge of accused and they have not discharged burden of proving them. It is further urged that the recoveries have been effected from the accused persons and the deceased was lastly seen with the accused Amit Sharma and it is for the accused persons to prove that Tarun's mobile was not used by them. Ld. APP has relied Sessions Case No: 73/10 Page 81 of 87 82 upon State of Rajasthan Vs. Kashi Ram AIR 2007 Supreme Court 144 in which it was held as follows:

"Before adverting to the decisions relied upon by the counsel for the State, we may observe that whether an inference ought to be drawn under Section 106 IPC is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts.

There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.

These incriminating circumstances in our view form a complete chain and are consistent with no other hypothesis except the guilt of the accused respondent. If he was with his wife on the evening of February 3, 1998, he should have explained how and when he parted company and / or offered some plausible explanation exculpating him. The respondent has not pleaded alibi, nor has he given an explanation which may support his innocence.

Thereafter, and his failure to offer any explanation when arrested, has been completely ignored by the High Court by simply recording the finding that there was nothing unusual in the husband being found with the wife in Sessions Case No: 73/10 Page 82 of 87 83 his house. The High Court failed to appreciate the other co related circumstances namely his disappearance thereafter locking of the house, and his failure to offer a satisfactory explanation in defence. Thus, the High Court has ignored important clinching evidence which proved the case of the prosecution. Therefore, interference with the judgment of the High Court is warranted."

131. On the other hand, it is urged by the Ld defence counsel that the prosecution cannot invoke and shift the burden of proof of innocence on the accused without proving an unbroken chain of circumstances which points only to the guilt of the accused persons.

132. In 2010 VIII AD (S.C.) 497 = 2010 (9) SCC 189, Babu Vs. State of Kerala. The Court ruled thus:

"27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice to mistaken conviction. Statutes like Negotiable Instruments Act, 1881; Prevention of Corruption Act, 1988; and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those Statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can Sessions Case No: 73/10 Page 83 of 87 84 also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact.

28. However, in cases where the statues does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabvoe, that the burden of proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution. (Vide: Hiten P. Dalal Vs. Bratindranath Banerjee : 2001 V AD (S.C.) 260 = (2001) 6 SCC 16; Narendra Singh Vs. State of M.P. 2004 V AD (S.C.) 547 = AIR 2004 SC 3249; Rajesh Ranjan Yadav Vs. CBI : 2006 X AD (S.C) 121= AIR 2007 SC 451; Noor Aga Vs. State of Punjab and Anr. (2008 VIII AD (S.C.) 435 = (2008) 16 SCC 417; and Krishna Janardan Bhat Vs. Dattaraya G. Hegde : 2008 II AD (S.C.) 421 = AIR 2008 SC 1325)"

133. In the present case the prosecution has failed to prove that the deceased was lastly seen with accused Amit Sharma and the recoveries are also not trust worthy so the prosecution has failed to prove unbroken chain of circumstances pointing towards the guilt of the accused persons. So the prosecution cannot shift the burden of proof of innocence on the accused.

134. Statements U/s 313 Cr.P.C : It is urged by the Ld. APP assisted by the Ld counsel for the complainant that the accused persons have been unable to explain the circumstances against Sessions Case No: 73/10 Page 84 of 87 85 them and have only given vague answers like "I do not know and it is incorrect".

135. On this issue the Hon'ble Supreme Court in State of Goa Vs. Sanjay Thakran 2012 (1) JCC 540 has considered the impact of non explanation of a circumstances or furnishing a false answer by an accused persons in the statement U/s 313 Cr.P.C in the following terms: "32. It is urged by Mr. Mahendra Anand, the learned senior counsel for the appellant(s), that the accused haven not explained as to in what circumstances the victims suffered the death in their statements under section 313 Cr.P.C and thus would be held to be liable for homicide. The learned senior counsel for the appellant(s) placed reliance on the following observation of this Court made in Amit alias Ammu Vs. State of Maharahstra 2003 VI AD (S.C.) 317 = (2003) 8 SCC 93:

"9. The learned Counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was a member in Mohibur Rahman Vs. State of Assam : 2002 VII AD (S.C.) 94 = AIR 2002 SC 3064 for the proposition that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be cases where, on account of close proximity of place and time the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the Sessions Case No: 73/10 Page 85 of 87 86 homicide. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed, in which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and the deceased were last seen by PW 1 and PW 1.1 No explanation has been offered in the statement by the appellant recorded under Section 313 Cr.P.C. His defence is of complete denial. In our view, the conviction for offence under Section 302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court.

33. We have noticed the decision. However, the circumstances in the present case are not similar to the case where the event of the last seen together has very close proximity with the time and place of the commission of the crime and other circumstances also favour the hypothesis of guilt and consequently the fact that no explanation or false explanation offered by the accused was taken as a link in the chain of circumstances. [See also : Birbal Vs. State of M.P. (2000) 10 SCC 212; Raju Vs. Stae of Haryana : 2001 IV AD (S.C.) 373 = 2001 Cri. LJ 2580; and Babu S/o Raveendran Vs. Babu S/o Bahuleyan and Anr. : 2003 VI AD (S.C.) 374 = (2003) 7 SCC 37]. Thus, in the circumstances of the case, the accused persons not giving any explanation in their examination under section 313, Cr.P.C could not be taken to be a circumstance pointing towards the irresistible conclusion that they are involved in the commission of the crime."

Sessions Case No: 73/10 Page 86 of 87 87

136. In the present case the prosecution has not been able to prove the last seen; the call records and the recoveries are also doubtful, so in these circumstances of this case, non explanation by the accused persons cannot be taken as a circumstances pointing towards their guilt and cannot be the sole criteria for convicting the accused persons.

137. The principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of the Supreme Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstances against the accused beyond all reasonable doubt but the said circumstances must give rise to only one conclusion to the exclusion of all others, namely, that it is accused and nobody else who had committed the crime. This is not so in this case for the reasons discussed hereinabove. All the accused persons are, therefore acquitted. File be consigned to Record Room.

(Announced in the open Court on 24072012.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGEII OURTER DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 73/10 Page 87 of 87 88 Sessions Case No: 73/10 Page 88 of 87

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