Delhi District Court
State vs . Jitender @ Jeetu Etc. on 18 August, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-02 (NE), KARKARDOOMA COURTS, DELHI.
CNR No. DLNE01-000294-2011
SC No.45087/2015
State Vs. Jitender @ Jeetu etc.
FIR No. 330 /2011
PS : Welcome
State
Versus
1. Jitender @ Jeetu
S/o Late Sh. Devender
R/o Mohalla Syana Sikander,
PS Aurangabad, Bulandshahar,
Uttar Pradesh
2. Kaushal
S/o Late Sh. Devender
R/o Mohalla Syana Sikander,
PS Aurangabad, Bulandshahar,
Uttar Pradesh
3. Seema
W/o Late Sh. Devender
R/o Mohalla Syana Sikander,
PS Aurangabad, Bulandshahar,
Uttar Pradesh
4. Raju @ Bihari
S/o Sh. Bishambar
R/o Village Samaspur
PS Charva, Distt. Kaushambi,
Uttar Pradesh
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 1/93
5. Manoj
S/o Sh. Shyam Lal Singh
R/o Village Naya Gaon, PS Kalwali City,
Distt Bulandshahar,
Uttar Pradesh
Date of Institution / Committal : 04.01.2012
Date of Arguments : 18.08.2022
Date of Pronouncement : 18.08.2022
JUDGMENT:
1. Prosecution case: It is case of the prosecution that on 07/06/2011, at about 7:00 pm, deceased Keshav Gautam left his house with a passenger brought by him from the office of Fine Tour and Travels to drop at Sikandrabad by his cab bearing TATA Indica No. DL-3CAC 3216. At about 10:00 pm, he informed to his wife from Bulandsher that he would come back by next day, but he did not return back. Even his mobile phone also went switch off. The wife of the deceased made a PCR call, whereas his father lodged a missing complaint with PS Welcome. Police lodged a Zero FIR and transferred it to the Police of District Bulandsher, UP as mobile phone of deceased got switched off there. However, said Zero FIR was returned back to PS Welcome by SSP, Bulandsher on the pretext that the deceased had finally left from the jurisdiction of PS Welcome so matter should be investigated by that PS only. Police lodged this FIR on 21/08/2011 and initiated investigation and during investigation, it was revealed that mobile phone of the deceased had switched on and was found operated by one Harender Kumar, Bulandsher during the period between 01/08/2011 to FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 2/93 03/08/2011. Police reached to him, who disclosed that mobile belonged to one Rakesh Kumar, who was mobile machinic. Rakesh Kumar led the police to accused Manoj, who disclosed a criminal conspiracy under which accused Kaushal brought the deceased cab driver Keshav Gautam from Delhi to Bulandsher and was robbed and murdered. Rakesh Kumar led to police to accused Seema, Jitender @ Jeetu, Kaushal and one JCL-B, who were part of this conspiracy, whereas Raju @ Bihari helped them in disposal of dead body. Body remains of the deceased were recovered from a brick kiln where dead body was burnt. One country made pistol and watch of deceased were recovered from the possession or at the instance of accused Manoj. Car of the deceased, which was also robbed by the accused persons, was recovered abandoned within the jurisdiction of PS Kakor, Dadri, UP. All the accused persons were arrested and charge sheeted. JCL-B was chargesheet before JJB.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Charges u/s 120B/302/392/201/34 r/w Section 120B IPC were framed against accused persons. However, accused Raju @ Bihari has been charged u/s charge u/s 201/34 IPC r/w Section 120B IPC only, whereas charge 397 IPC and Sections 25/27 of Arms Act were also framed against accused Manoj vide order dated 10.12.2012. All the accused persons pleaded not guilty and claimed trial.
4. To prove these charges, prosecution has examined PW1 Rajesh Kumar, PW2 Harender Kumar, PW3 W/HC Rajesh, PW4 Nathu Ram, PW5 FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 3/93 Sanjeev Kumar, PW6 HC Bharat Singh, PW7 Pradeep Kumar, PW7-A Prem Vir Singh (Two PW7 have been examined inadvertently due to PW7 Prem Vir Singh is considered as PW7-A), PW8 Ct. Sandeep, PW9 Sharafat Ali, PW10 Ct. Kuldeep, PW11 ASI Ashok Kumar, PW12 W/Ct. Kavita, PW13 ASI Ramesh Singh, PW14 Amit Gupta, PW15 ASI Bhisam Rana, PW16 Retired SI Ajit Singh, PW17 Inspector Mukesh Kumar Jain, PW18 HC Omveer Singh, PW19 ASI Jai Pal Singh, PW20 SI Sandeep Kumar, PW21 SI Shyam Sunder, PW22 Inspector Samarjeet Singh, PW23 Inspector Yogesh Malhotra, PW24 Sh. Amitabh Rawal, PW25 Ct. Rakesh, PW26 Mukesh Kumar, PW27 Ram Babu, PW28 HC Vinay Kumar, PW29 ASI Ranvir Singh, PW30 Ct. Anil Kumar, PW31 Dr. D. S. Paliwal, PW32 Sh. Gaurav Gupta, PW33 Mazid Khan, PW34 Smt. Sangeeta, PW35 Inspector Sudhir Kumar and PW36 Ajit Singh. No other PW has been examined by prosecution and closed PE.
5. After PE, entire incriminating evidence was explained to all accused under Section 313 CrPC and their statements were recorded. Accused have examined DW1 Naresh Chand and closed DE.
6. To prove this case, prosecution has examined many witnesses including family members of the deceased. The evidence led by the prosecution is as under: -
6.1. PW1 Rajesh Kumar has deposed that he was running a mobile repairing shop at House No. 1, Mohalla Baghwala, village Khanpur, Bulandshahar, UP and on 07.06.2011, he was sleeping in his shop and at midnight, someone knocked shutter of his shop. He opened shutter/gate and found that his maternal uncle Manoj with Jitender @ Jeetu and Seema was FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 4/93 present there with a blue colour Indica car and stated that they had come to park that car there. They came inside of his shop and on inquiry about the car, accused Manoj disclosed that it was hired from Delhi through Kaushal and they had robbed and killed the driver and came there to park that car. He did not allow them to park that car in his shop. Accused Seema was holding two mobiles and threw one of them on road by stating to Manoj 'tum mujhe yahan marwane ke liye laye ho' and all of them left away. He lifted broken mobile phone threw by Seema, repaired it by replacing its body and screen by another one and kept it with him. It is further deposed that his friend Harender Kumar gave his mobile for repairing and he provided this mobile phone thrown by accused Seema to him as substitute during repairing period to Harender. Harender Kumar returned that mobile phone after 2-4 days.
However, on 22.08.2011, Harender alongwith police officials came to his shop and police inquired about that mobile phone and he apprised to police about the reason of possession of mobile phone with him. Police seized mobile phone vide seizure memo Ex.PW1/A. Police officials inquired about accused Manoj, Jeetu and Seema and he led police to the house of accused Manoj, where accused Jitender@ Jeetu was found there and was arrested vide arrest memo Ex.PW1/B and personal search vide memo Ex. PW1/C. He also led police to the house of accused Jeetu, village Kasba, Aurangabad, UP and got arrested his mother Seema vide arrest papers Ex.PW1/D and Ex. PW1/E. He has identified mobile phone as Ex. P1 6.1.1. During cross examination by Ld. Add. PP for State, he has admitted that accused persons were nervous when they came to his shop and accused Manoj informed him that car was hired / arranged through Kaushal from Delhi and they had killed its driver by strangulation and dead body was thrown into a running bhatta / brick kiln. It is further admitted that accused FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 5/93 Manoj threatened him to kill, if he disclosed anything to anyone. The Car which was with the accused persons at that time is Ex. PW1/P2.
6.1.2. During cross examination by accused, he has admitted that he was repairing and was not selling mobile phones. He was maintaining bill books, but could not produce it. It is found recorded in his statement that he was sleeping in his shop during night and at midnight, someone knocked shutter of his shop. It is further admitted that he had no visiting terms with accused Jitender and Kaushal who was working in Delhi at that time. It is further admitted that he did not disclose the information disclosed by accused to his family members or to police after leaving his shop by accused persons and went to sleep at first floor. He handed over mobile phone to police after disclosing of all facts, but police did not obtain his signature on any paper at his shop, whereas he signed arrest papers of accused Jeetu at Nehar Goan. Police also did not obtain his signatures on seizure memos. He met accused Manoj only once with his mother during the period between 07.06.2011 to 22.08.2011, but he did not disclose to his mother regarding the visit of accused to his shop on 07.06.2011, as no conversation took place between them during the period from 07.06.2011 to 22.08.2011. He also did not talk to Jitender during this period. It is further admitted that accused Jitender @ Jeetu was found present at home, but public persons did not gather there nor chowkidar was called when accused was arrested. His statement was recorded by Ld. MM, but it was not found recorded in his statement that he opened shutter of shop and saw Jeetu, Seema and Manoj were present there with Indica car. He has denied that accused persons have been falsely implicated to this case.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 6/93 6.2. PW2 Harender Kumar has deposed that on 01.08.2011, he gave his mobile phone to Rajesh Kumar for its repairing and asked him to provide a substitute during the repairing period and Rajesh provided one Nokia mobile to him. On 03.08.2011, he collected his old mobile phone after its repairing and returned back mobile to Rajesh Kumar. On 22.08.2011, police officials approached to him to enquire about the use of mobile phone during the period from 01.08.2011 to 03.08.2011 and he disclosed that mobile phone belonged to Rajesh Kumar and led police team to his shop.
6.3. PW3 W/HC Rajesh was working as Duty Officer and on 09.06.2011, at about 4.20 pm, she received information from Control Room about missing of the deceased communicated by Ct. Neetu of PCR. She recorded the information vide DD No. 13A, which is Ex.PW3/A. 6.4. PW4 Nathu Ram is the father of deceased Keshav Gautam and has deposed that his son Keshav Gautam purchased a car and engaged with Fine Tour and Travels, New Seelampur, Delhi. On 07.06.2011, he went to Sikandrabad with a passenger and left at about 6.00/ 6.30 pm. At about 10.00 pm, his daughter-in-law received a call and thereafter, his mobile phone switched off. She disclosed to him in morning about it and they went to the office of Fine Tour and Travels and proprietor of Fine Tour and Travels namely Majid assured them to bring his son back, but he never returned back. His statement Ex.PW4/A was recorded by the police. He has further deposed that the deceased had brought one passenger by his motorcycle and thereafter, he left with that passenger to Sikandrabad at about 7.00 pm. FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 7/93 6.5. PW5 Sanjeev Kumar has deposed that on 07.06.2011, he alongwith his brother Pradeep Kumar was going to his home from his office of Cable TV and at the corner of gali no. 4, he saw deceased Keshav Gautam was going towards his home by a motorcycle on which one person (identified as Kaushal) was also sitting as pillion rider. He asked Keshav Gautam as to where he was going and he replied that 'Sikandrabad baarat mein aana jana karna hai'. After sometime, deceased alongwith that passenger (Kaushal) left his house by his Indica Car with Kaushal and was sitting on driver's seat. He remained at the corner of gali no. 4 and again met him when he left by his car with accused Kaushal and on next day, he came to know that deceased had not returned back and his mobile phone was switched off.
6.5.1. During cross examination, he has deposed that during the day of incident, his office was situated at Babar Pur and he along with his brother used to attend complaints of Cable TV. It is further deposed that no one else crossed him on 07.06.2011 when he was going to his house from his office. He came to know on 08.06.2011 through locality persons that Keshav Gautam had not returned back and his family members had lodged his missing complaint with PS. He also disclosed to police during investigation about the person with whom deceased Keshav Gautam was lastly seen, but he did not remember the date when he disclosed about it.
6.6. PW6 HC Bharat Singh has deposed that on 20.10.2011, he alongwith Ct. Ombir went to PS Kakor, Distt. Gautam Budh Nagar, UP to bring Indica car bearing No. DL-3C-AC-3216 to PS Welcome under the direction of IO. At that time, car was having a fake number plate No. UP-13H-2385 and the same was seized vide seizure memo Ex. PW6/A. They brought car to Delhi FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 8/93 and handed it over to MHC(M).
6.7. PW7 Pardeep Kumar is the brother of PW5 Sanjeev Kumar and was with him when he witnessed the deceased with accused Kaushal, who was pillion rider on the motorcycle of deceased on 07/06/2011 and deceased also stated in his presence that 'Sikandrabad ka anaa jana karna hai'. Deceased left with accused by his car in his presence.
6.7A. PW7A Prem Vir Singh (Two PW7 have been examined inadvertently due to PW7 Prem Vir Singh is considered as PW7-A) was running a photo studio in the name and style of Chirag Studio, Namaskar market, Bulandshahar, UP, On 31.08.2011, he clicked photographs and also shot video of bhatta (brick kiln) where one burnt dead body was recovered. He prepared one DVD, one CD and clicked photographs which are Ex. PW7/P1 and Ex.PW7/P2 and handed over to police. He has produced his visiting card Ex.PW7/D1 to prove that he was running a photo studio.
6.8. PW8 Ct. Sandeep recorded this FIR on the basis of rukka presented by DO on 21.08.2011 for typing.
6.9. PW9 Sharafat Ali was taxi driver and attached with Fine Tour and Travels as driver, where deceased also used to get bookings for his taxi. On 07.06.2011, at about 6.30 pm, accused Kaushal came to the office of Tour and Travels for hiring a taxi for Sikandrabad, UP. He quoted Rs. 2400/- for to and fro, but he counter offered Rs.2200/-, for which he was agreed, but he had an advance booking to Noida so he agreed, subject to condition to go only, if his own customer did not turn up. However, his customer confirmed FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 9/93 his booking so he declined to go with accused, but deceased Keshav Gautam was also present there and he asked him to go Sikandrabad. He had come to office for inquiry of booking for him so he agreed to go Sikandrabad. Accused Kaushal was alone, whereas taxi of Keshav was stationed at his home so deceased accompanied him by his motorcycle to his home and left from there. On next day, he came to know through family members of deceased that deceased had not returned back. He accompanied with family members of the deceased in search of him and later on, matter was reported to police.
6.9.1. During cross examination, he has admitted that he did not know accused Kaushal prior to 07.06.2011 and saw him on 03.11.2014 after on 07.06.2011. On third day of missing of the deceased, he met his family members, but did not inform to police about missing of the deceased. On 07.06.2011, he was present in his travel office since morning and finally left his office at about 6.45/7.00 pm. On 09.06.2011, he accompanied with family members of deceased Keshav to Sikandrabad, UP, but he was not aware about the names of persons who visited office on 10.06.2011 or 05.11.2014 etc. He was the driver attached to travel office and used to get bookings as and when provided by travel office Manager, but he had no document to this effect. He was driving car of one Aslma Bhai, but had no documents to this effect. It is further admitted that the deceased was only a fellow driver in travel office and was not his friend.
6.10. PW10 Ct. Kuldeep collected two sealed parcels from MHC(M) on 17.10.2011 and deposited with FSL, Rohini and handed over acknowledgement to MHC (M).
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 10/93 6.11. PW11 ASI Ashok Kumar was posted as Duty Officer and on 10.06.2011, he received a rukka and made his endorsement Ex.PW11/A on rukka and registered FIR u/s 365 IPC, which is Ex.PW11/B. 6.12. PW12 W/Ct. Kavita visited Bholasiyana, Sikander Kasba, UP with IO and witnessed the arrest of accused Seema at the instance of Rajesh Kumar vide arrest memo Ex.PW1/D and personal search was conducted vide memo Ex.PW1/E. Accused made disclosure statement Ex.PW12/A and led the police team to the place of occurrence where deceased Keshav Gautam was murdered and got prepared pointing out memo Ex.PW15/C. 6.13. PW13 ASI Ramesh Singh was posted with PS Welcome and on 09.06.2012, he was assigned DD No. 13A. He visited the house of deceased and recorded statement of his father Nathu Ram, which is Ex.PW4/A and prepared rukka Ex.PW13/A on the basis of DD entry and got lodged Zero FIR. He sent copy of Zero FIR and rukka to SSP, Bulandshahar through DCP concerned. He recorded DD entry No. 22A, which is Ex.PW13/B, regarding his visit to the house of deceased. He also recorded DD No. 36B on the same day regarding clarification of receiving of information of FIR, which is Ex.PW13/C. 6.14. PW14 Amit Gupta was owner of Om bhatta (brick kiln) being run at Shikarpur Road, Bulandshahar, UP. He came to know that a dead body of taxi driver was burnt in his bhatta. In the month of August - September, 2011, police officials alongwith one Raju and his brother Sohan came there and removed bricks at the instance of accused Raju and recovered bones, teeth and jaw bones from there, which were collected in a plastic sack (katta) and FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 11/93 seized vide seizure memo Ex.PW14/A. Police also collected burnt ashes vide seizure memo Ex.PW14/B. One tawa (tasla) was also taken into possession vide seizure memo Ex.PW14/C. He has admitted that at the time of recovery of bones etc., videography was got conducted by the police, but he did not remember as to whether jaw bone was recovered, but teeth were recovered from ashes. However, he was not aware as to how many teeth were recovered. He has identified his signature on seizure memos Ex.PW14/D and Ex.PW14/E and has also proved that police took into possession ashes and earth control vide seizure memos Ex.PW14/B and Ex.PW14/F. It is further admitted that accused Manoj was brought by police to his bhatta on 10.11.2011 and he pointed out bhatta thereby stating that the driver of car was burnt by them there with the help of Raju @ Bihari, but he forgot these facts due to lapse of time.
6.14.1. During cross examination, he has deposed that he has been running this bhatta since 2004 and has Sales Tax TIN number. He disclosed to police that he ran bhatta on rent. He has no knowledge of Dental Medical and could not say just by seeing bones that those are jaw or of head or belongs to human or animal origin. He was shown teeth recovered by the police in his presence but he could not say as to whether these teeth belong to animal or human. He signed 15-20 papers after going through their contents. It is further admitted that there were about 35-36 taslas at his bhatta. Police visited his bhatta about 7-8 times, but site plan was not drawn in his presence, however measurements were taken. Police asked him to reach bhatta only once or twice prior to their visits to bhatta. On the day of recovery of teeth, police remained there for whole day. He could not say as to whether any human or animal bones could be found in bhatta, if it remained FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 12/93 in running bhatta condition for about 20-25 days. He has admitted that bhatta was an opened place and was accessible to all, but in case of any mis- happening, he was to be informed by his worker / chowkidar. He was not aware whether police might have planted something in his bhatta during their visits in his absence. Police recovered teeth during their visit. He has admitted that he did not maintain any register of employees / workers of his bhatta, but record of salary was maintained, however no such record was given to police. It is admitted that accused Raju @ Bihari was his employee at this bhatta.
6.15. PW15 ASI Bhisam Rana joined investigation of this case with IO on 22.08.2011. He along with IO Insp. Sudhir Kumar and other police officials visited Bulandshahar, UP to Harender, where IO made inquiry from him regarding mobile phone of the deceased operated with him and he disclosed that mobile phone belonged to Rajesh Kumar. They along-with Harender went to Rajesh Kumar and Rajesh disclosed that his maternal uncle (mama) Manoj along-with Jitender and Seema came to his shop by a blue colour Indica car in the night of 07.06.2011 to park the said car. Accused Manoj disclosed that it was looted after committing the murder of its driver. He further disclosed that he refused to allow them to park that car and Jitender after getting annoyed threw that mobile phone on the ground and Manoj threatened to kill him, if he disclosed anything to anyone and all of them went away. He picked up that mobile phone, repaired it and handed over to Harender in lieu of his mobile during repairing period. IO seized mobile phone vide seizure memo Ex.PW1/A. Rajesh led to house of accused Manoj wherefrom accused Jitender @ Jeetu was arrested, who made his disclosure statement Ex.PW15/A. Accused Jitender led to accused Seema, who was FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 13/93 arrested and both made their disclosure statements. Both accused pointed out bhatta where they committed murder of taxi driver and brunt his dead body vide pointing out memos Ex.PW15/B and Ex.PW15/C. Accused further disclosed involvement of one JCL-B who was bound down to appear before the police. All accused persons were brought to Delhi. Meanwhile, accused Kaushal was also apprehended from Kashmere Gate Bus Terminal on the basis of a secret information and was interrogated. He also made his disclosure statement Ex.PW15/D and was arrested vide arrest and personal search memos Ex.PW15/E and Ex. PW15/F. 6.15.1. During cross examination, he has deposed that he was not aware about the name of Harender or his father before reaching to his house. He was also not aware as to whether Harender had disclosed the date when he got this mobile phone from Rajesh. He was also not aware about model number of mobile phone, but it was a mobile phone of Nokia Company and was of black and blue colours. They did not lodge any DD entry at Bulandshahar, but recorded their presence at PS Khanpur, UP. Local police were joined into arrest proceedings of accused persons, but no public person got joined at the time of seizure of mobile phone. He was not aware about the size of the shop of Rajesh, but Rajesh was present there. They left Delhi on 22.08.2011, at about 5.00-6.00 pm and reached Bulandsher at about 11.00/11.15 pm, but no videography was got conducted at the house of Harender. No public person was ready to join investigation due to signature of any public person was not taken on the documents. They reached at brick kiln at about 3.30 /4.00 pm, but no recovery was effected from there.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 14/93 6.16. PW16 SI Ajit Singh was posted as Duty Officer on 21.08.2011 and made his endorsement on rukka presented by SHO, which is Ex.PW16/A and got registered FIR which is Ex.PW16/B. 6.17. PW17 Inspector Mukesh Kumar Jain, draftsman has proved the scaled site plan as Ex.PW17/A. 6.18. PW18 HC Omveer Singh along-with HC Bharat Singh went to PS Kakor, Distt. Gautam Budh Nagar, UP and brought car of the deceased bearing No. DL-3CAC-3216 with fake registration No. UP-13H 2385 to Delhi, which was seized by IO vide seizure memo Ex.PW6/A. 6.19. PW19 ASI Jai Pal Singh has proved entries of Register No. 19 by which he received exhibits or sent exhibits to FSL, which are Ex.PW19/A to Ex.PW19/K 6.20. PW20 SI Sandeep Kumar joined investigation with IO on 29.08.2011 and visited PS Charwa, UP with accused Jitender in search of co-accused Raju @ Bihari. They went to house of the brother of Raju @ Bihari and Raju @ Bihari was arrested from there on the pointing out of Jitender vide arrest papers Ex.PW20/A and Ex.PW20/B. Accused Raju @ Bihari made his disclosure statement Ex.PW20/C and during Police Custody on 31.08.2011, accused Raju @ Bihari and Kaushal led police team to the place where they committed the murder of cab driver. Photographers photographed the spot pointed out by accused. Accused further led police team to another bhatta which was at a distance of about 150-200 meters from the spot pointed out by the accused and showed the spot where they had thrown the dead body of cab FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 15/93 car driver in the bhatta after committing his murder. Bhatta was got opened in the presence of its owner and bones and ashes were recovered, which were seized vide different seizure memos. He was not aware as to whether statements of local police officials were recorded or their signatures were obtained on papers, but it is admitted that he did not state in his statement earlier that they went to the house of the brother of accused Raju @ Bihari where he was found. Accused Raju was arrested at about 4.00/4.30 pm, but signatures of accused Jitender @ Jeetu were not obtained on his arrest and personal search memos, and personal search of Raju @ Bihari does not bear its date. Brick kiln / bhatta from where exhibits were lifted was situated near the road and having no boundary walls. He was not aware as to whether IO had already visited that spot or not, but accused Raju was not produced before the local police after his arrest nor any DD entry was lodged regarding it. Accused Jitender was not arrested in his presence but he was with police team when accused Raju was arrested. Tasla seized from bhatta was having three holes and one handle, but he did not notice as to whether other taslas were lying there or not. Ashes and bones etc. were lifted from inside of the bricks kiln and same were sealed there itself and ashes, bones etc. were normal in temperature and were not hot.
6.21. PW21 SI Shyam Sunder was posted as In-charge, Police Post, Narsal Ghat, Distt. Bulandshahar, UP. On 31.08.2011, IO along-with accused Jitender, Kaushal and Raju @ Bihari approached him and they left to Purana bhatta, near Shikarpur Road, Naya Gaon. One videographer was also called there and they reached at Om Bhatta, which was about 200 yards ahead, where all three accused persons pointed out that they had thrown the dead body of cab driver in the said bhatta. Police recovered bones, jaw and three FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 16/93 teeth from there. Videographer video-graphed the scene of crime and burnt bones were seized vide memo Ex.PW14/A in his presence. Soil mixed with ashes and small pieces of bones were also lifted and seized vide seizure memos Ex.PW1/B and Ex. PW1/D. Accused Raju @ Bihari also got recovered one tasla in burnt condition which was seized vide seizure memo Ex.PW14/C and was used to cover the hole of bricks. One brick was also seized vide seizure memo Ex.PW14/E. He has identified all articles as Ex. P2, Ex. PW21/P1 to Ex. PW21/P4.
6.21.1. During cross examination, he has admitted that he did not make any DD entry with Police Post, Narsal Ghat regarding arrival of Delhi Police, but passed on information to SHO, PS Kotwali. He did not make any entry in Police Post record and even no written direction was received when he passed on this information to SHO, PS Kotwali.
6.22. PW22 Inspector Samarjeet Singh has deposed that on 29.06.2011, he was posted with PS Kokar, UP and recovered one car make TATA Indica bearing No. UP-13H-2385 of blue and purple colour. Registration No. DL-3C-AC-3216 was engraved on its glasses. Said car was found abandoned at Rabupura Road, near Chaudhary Dharam Kanta and deposited that car with MHC (M) vide entry Ex.PW22/A. The vehicle was transferred to Delhi through HC Bharat Singh of PS Welcome vide entry Ex.PW22/A. The photographs of vehicle are Ex. PW22/C and Ex. PW22/D. 6.22.1. During cross examination, he has admitted that photographs Ex.PW22/C and Ex.PW22/D were not clicked in his presence and even chassis and engine of vehicle are not reflected in these photographs. DD FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 17/93 entries Ex.PW22/A and Ex. PW22/B are not in his handwriting and even he was not aware as to how recovered vehicle was brought to Delhi.
6.23. PW23 Inspector Yogesh Malhotra has deposed that on 09.06.2011, complainant Nathu Ram lodged a missing complaint of his son Keshav Gautam, but matter was pertaining to the jurisdiction of SSP, Bulandshaher, UP. ASI Ramesh Singh prepared a rukka Ex.PW13/A and got lodged a Zero FIR, which is Ex.PW11/B and sent both documents to SSP, Bulandshaher, UP. On 21.08.2011, he received a letter Ex. PW23/A with a written report and forwarding letter Ex. PW23/B and Ex. PW23/C, Zero Ex.PW23/D with other documents from SSP, Bulandshaher Ex.PW23/E that this matter was pertaining to the jurisdiction of his PS. He prepared rukka Ex.PW23/F and got registered FIR.
6.24. PW24 Sh. Amitabh Rawat, the then Ld. MM has proved the statement of PW1 Rajesh Kumar u/s 164 CrPC vide statement Ex. PW24/A. He appended a certificate on the statement which is Ex. PW24/C. Copy of statement was supplied to IO against application Ex. PW24/D. 6.25. PW25 Ct. Rakesh joined investigation with IO on 22.08.2011 and visited village Khanpur, Bulandshaher, UP. He witnessed that IO interrogated Harender Kumar, who lastly used the mobile phone of deceased and pointed out towards Rajesh Kumar, who was also interrogated. Rajesh Kumar disclosed the involvement of his uncle Manoj in this case, who along- with accused Jitender@ Jeetu and Seema visited his house to park a robbed car and disclosed that they had committed the murder of the driver of the car and had thrown his dead body into bhatta. Accused Jitender @ Jeetu FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 18/93 snatched mobile phone from his mother Seema and struck against floor and left there. Rajesh lifted said mobile phone, repaired it for use and provided to Harender for use during repairing of his mobile phone. He witnessed proceedings conducted by IO regarding the arrest and recovery at the instance of accused persons. He witnessed the pointing out memo got prepared by accused Kaushal which is Ex.PW25/A and accused Raju@ Bihari also pointed out the spot vide pointing out memo Ex. PW25/B. He also witnessed recovery of body remains of the deceased from bhatta by IO. On 08.11.2011, he again joined investigation and witnessed the arrest of accused Manoj from the house of Ram Babu vide arrest papers Ex.PW25/C and Ex. PW25/D and accused Manoj made his disclosure statement Ex.PW25/E. On 10.11.2011, accused Manoj led the police to the place where they had dumped the dead body vide memo Ex.PW25/F. Accused Manoj also got recovered one country made pistol with live cartridges, of which, sketch is Ex.PW25/G and the same were seized vide memo Ex.PW25/H. One wrist watch of golden colour make Titan was also recovered at his instance and seized vide seizure memo Ex.PW25/I and site plan of the recovery of country made pistol which is Ex.PW25/J was also prepared by IO. Manoj led to a restaurant at Shikarpur Road where they had food after committing the murder of driver / deceased and the owner of the restaurant also made his statement. Accused Manoj also led to police team to Siyara Town where he got prepared a forged number plate, but shop could not be located. He has identified case property Ex. P1, Ex. P2 and Ex.PW20/P1 to Ex. PW20/P4.
6.25.1. During cross examination, he has deposed that firstly they reached at S.P. office and thereafter, went to Khanpur, but no police officials of SP office was accompanied them. They did not visit local Police Station, but FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 19/93 went to the house of Harender and reached there at about 8.00/9.00 pm, where IO recorded his statement. IO did not prepare any site plan of the shop / house of Rajesh. He has admitted that no one was available in gher wherefrom recovery was effected at the instance of Manoj, but accused was not produced before the local court after recovery. No notice was served upon public persons to join investigation, but statements of hotel owner, bhatta owner and Ct. Vijay besides him were recorded by IO. Accused Manoj got recovered a katta and live cartridge along-with watch, but police did not offer its own personal search before recovery. He has denied suggestion that the family members and neighbours of accused Manoj were present at gher when recovery was effected. Bhatta was situated about 20 meters inside road, but no public person was asked to join investigation. Accused Raju @ Bihari was arrested from his house and local police was informed about it, but no one from local police was accompanied with them.
6.26. PW26 Mukesh Kumar was owner of M. K. Family Restaurant, Shikarpur Road, but has not supported the prosecution. He knew accused Manoj, but did not know as to whether prior to five months ago, accused Manoj with one cab driver, Jitender, Kaushal, Seema and JCL-B visited his hotel at about 10.00 pm by a blue colour Indica car or they had food there.
6.27. PW27 Ram Babu witnessed the arrest of accused Manoj Kumar from his home and recovery of a Titan wrist watch having golden chain along-with one mobile phone in personal search vide seizure memos Ex. PW25/C and Ex. PW25/D, but he has also not supported the prosecution.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 20/93 6.28. PW28 HC Vinay Kumar joined investigation on 10.11.2011 and he alongwith IO Inspector Sudhir Kumar, one constable and accused Manoj Kumar joined the investigation and witnessed the pointing out of the spot by accused Manoj where he along-with other accused strangulated the deceased and dumped his dead body vide pointing memo Ex.PW25/F. Manoj stated in his presence that he along with his co-accused strangulated the deceased and put the body into Bhatta with the help of accused Raju Bihari. He witnessed recovery of desi katta, two live cartridges and one golden colour watch make Titan. Katta was used during this crime. These articles were recovered from the house of accused Manoj vide seizure memos Ex.PW25/G and Ex. PW25/H. 6.28.1. During cross examination, he has admitted that he did not make any departure or arrival entry regarding visit of police team at Naya Gaon. Even proceedings were neither photographed nor video-graphed. The distance between bhatta and gher of accused was about 500-700 meters. No one was present in gher when accused Manoj led police team, but police team did not offer its personal search before recovery at the instance of accused. Accused had disclosed that he used this katta to threat the driver of car and watch was snatched from him. He signed disclosure statement of accused Manoj which is Ex.PW25/E. He was present outside gher when accused got recovered katta and other articles, but IO prepared sketch of katta in his presence. The relatives of accused like uncle were asked to join investigation, but they refused to recognize the accused, however no notice was served upon his uncle to join investigation. No one was present in gher to which accused Manoj led police team. He has admitted the suggestion that he did not see the room from inside wherefrom accused took out polythene containing katta FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 21/93 and cartridges.
6.29. PW29 ASI Ranvir Singh deposited sealed pullanda containing katta and two live cartridges with FSL, Rohini vide separate entry in register of MHC(M) and returned back acknowledgement Ex. PW19/G to MHC(M).
6.30. PW30 Ct. Anil Kumar has also corroborated that on 08.11.2011, he along-with IO and other police team members visited the house of one Ram Babu, who disclosed that accused Manoj had illicit relations with his wife and used to visit his house. Accused Manoj was arrested at the instance of Ram Babu from his house and one purse containing Rs.37/- and some documents, one wrist watch golden colour chain make Titan and one mobile phone were recovered from his possession. He has admitted that local police of local PS were present at the time of arrest of accused Manoj and disclosure statement of accused Manoj was recorded at Police Chowki, Bulandshaher.
6.31. PW31 Dr. D. S. Paliwal, Assistant Director, FSL has proved DNA report of the body parts of deceased as Ex.PW31/A. 6.32. PW32 Sh. Gaurav Gupta, the then Ld. MM has proved TIP proceedings of accused Kaushal as Ex. PW32/A and Ex. PW31/B, but accused refused to join proceedings. Copy of TIP proceedings was supplied to IO, which is Ex.PW32/C. 6.33. PW33 Majid Khan was the owner of Fine Tour and Travel and has deposed that he used to issue duty slips for bookings of tour and travel. He used to collect names, address, ID proof of customers before sending FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 22/93 bookings and also used to give duty slip his drivers. He went to offer Namaz and was not aware about anything. However, he has admitted that he stated to the police in his statement that sometimes deceased Keshav Gautam used to get bookings for his Indica car during last two years and, on 07.06.2011, in the evening, he had gone to offer Namaj and his driver Sharafat was sitting in his shop and when he came back, Sharafat informed him that one boy asked for a vehicle on rent to go to Sikandrabad, but due to his non-availability, he refused. It was further deposed that Sharafat informed him that Keshav Gautam had come to his office by his motorcycle and talked to that boy and thereafter, he accompanied with that boy went by his motorcycle to his home and later on to his destination after accepting that booking. It is further deposed that he stated to the police in his statement that after 2-3 days, the father of deceased visited his office and inquired about the deceased, but he replied that he did not send him on booking and was not aware.
6.33.1. During cross examination, he has admitted that he did not give any document regarding operating of his office or employment of Shafarat in his office. It is admitted that prior to 07.06.2011, booking of vehicle of Keshav Gautam was not confirmed or booked through him. He did not tell to the father of deceased whatsoever told to him by Sharafat. Police never met him prior to 11.11.2011 and even Sharafat was also not interrogated by the police in his presence. He was not aware as to whether vehicle was booked by Keshav Gautam on 06.06.2011. Keshav Gautam was neither his neighbour nor known to him, but he used to print his bill books / cards.
6.34. PW34 Smt. Sangeeta was the wife of deceased Keshav Gautam. She has deposed that her deceased husband used to drive Indica car on rent and FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 23/93 on 07.06.2011, he went to Sikandrabad along-with a boy accompanied him from Fine Tour and Travels on motorcycle. Deceased took booking and left at about 7.00 pm and, at about 10.00 pm, she received a call of her husband that he was at Bulandshaher and assured to return back by tomorrow, but he never returned back. She made a call at 100 number, but she came to know that deceased was murdered. It is further deposed that her husband used to wear a golden wrist watch of make Titan, which was gifted to him by her father. She has identified the golden wrist watch as Ex. PW25/P3.
6.34.1. During cross examination, she has deposed that she lodged a PCR call regarding missing of her husband by her mobile phone. She lodged PCR call regarding missing of her husband as police officials asked her to wait at- least one day before lodging of any police complaint. She disclosed to police that her husband had left by his car along-with one person from house, but she was not aware whether police made any inquiry from Fine Tour and Travels or not. Mobile phone by which she informed the police belonged to her and was provided by her deceased husband. Now she has changed her mobile phone as earlier one has been stolen and she also lodged a police complaint regarding this theft, but she has no report with her. She has no receipt of watch identified by him.
6.35. PW35 Inspector Sudhir Kumar is IO and has deposed that he collected CDR of mobile of deceased on assignment of investigation. From CDR, it was revealed that mobile location of deceased was at Kasba, Khanpur, Distt. Bulandshahar, UP. He visited there and met one Harender, who led to one Rajesh Kumar, who provided that mobile phone. Rajesh disclosed that Manoj, Jitender and Seema came to him by Indica car at night to park the car FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 24/93 and disclosed about the murder and throwing of dead body into bhatta. They requested him to allow parking of that car in his shop, but he refused. Accused Seema threw that mobile phone which he picked and repaired. Rajesh also disclosed the involvement of accused persons and got arrested Jitender @ Jeetu from Naya Gaon on 23.08.2011. Thereafter, accused Seema was arrested at the pointing out of Rajesh Kumar from her village and she disclosed about one JCL-B, who was minor and was also apprehended. Accused Seema and Jitender@ Jeetu pointed out bhatta where they had thrown the dead body and got prepared their pointing out memos. Thereafter, he seized mobile phone of deceased from Rajesh and minor was also produced before Juvenile Board. He also arrested accused Kaushal from Kashmere Gate. He prepared site plan of bhatta which is Ex. PW35/A and also got recorded the statement of Rajesh u/s 164 Cr.PC, which is Ex. PW24/A. On 28.08.2011, owner of Om Bhatta namely Amit Gupta informed him about accused Raju and Raju@ Bihari was arrested from his village. Raju and Kaushal led police team to the spot of incident and bhatta where they had murdered a cab driver and pointed out the place, whereas Raju @ Bihari disclosed that he dumped dead body in a running bhatta and pointed out some taslas which were used to cover hole of bhatta after dumping of dead body. He recovered bones and ashes from bhatta in the presence of police team officials and seized them. He filed TIP application of accused Kaushal which is Ex.PW32/C, but he refused to participate in TIP. He sent exhibits to FSL and also recovered abandoned Indica car. He arrested accused Manoj on 08.11.2011 from the house of Ram Babu. During police custody on 10.11.2011, accused Manoj led to his gher near house and got recovered one country made pistol with two live cartridges and wrist watch of the deceased and all articles were seized and sealed by him. He also FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 25/93 prepared site plan of the spot of recovery. On 17.11.2011, he called draftsman SI Mukesh Jain who prepared scaled site plan which is Ex.PW32/B. He collected FSL report Ex.PW35/C and has identified the case property.
6.35.1. During cross examination, he has admitted that he did not seize the receipt of mobile phone of the deceased, but CDR disclosed that mobile phone belonged to the deceased. He did not remember DD entries against which he visited UP repeatedly. It is further admitted that no local police official was present at Kasba, Sikandrabad, UP. He did not remember whether he obtained signature of kiln owner on the site plan of bhatta, which is Ex.PW35/A. He also did not remember the exact time when secret informer met him at Naya Gaon, however he did not serve any notice upon Gram Pardhan to join investigation. He asked family members of witness Rajesh Kumar to join investigation, but they refused, however, he did not serve any written notice upon them. He did not know whether Rajesh Kumar made any complaint with police regarding this incident. It is further admitted that all details of Manoj were provided by Rajesh. Secret informer remained with them till pointing out of accused Manoj, who was apprehended by his staff members and was taken to police station Kotwali after his arrest. He has admitted that there was no other person except police officials at the time of recovery of katta and cartridges at the instance of accused Manoj, but no public person got joined into recovery proceedings. Even accused was neither taken to local police nor local police was informed about this recovery. He did not verify the connection of accused to each other and also did not ascertain whether all accused joined from Budh Chahurha. Brick Kiln (bhatta) owner disclosed particulars of accused Raju including his father and also sent a person to guide police team to his house, but his fact is not FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 26/93 mentioned in his disclosure statement. It is further admitted that mobile phone of deceased was found by Rajesh Kumar on 07.06.2011, whereas it was recovered on 22.08.2011 and during this period Rajesh did not inform anyone about this crime or use of mobile phone of the deceased. It is further admitted that no sim was found in the mobile phone and even Rajesh also did not disclose that he found any sim of the deceased in that mobile instrument. He recorded statement of Rajesh Kumar when it was seized, but no investigation was conducted from any accused about sim of mobile phone after its recovery. It is further admitted that mobile number 8860474871 was not in the name of wife of the deceased, but it was in the name of one of the friends of the deceased and deceased handed over sim to his wife. It is further admitted that as per DD no. 13A, date of missing of deceased was on 06.02.2011, whereas it was mentioned on 07.02.2011. He did not remember whether family members of the deceased disclosed that deceased was wearing watch which has been shown to be recovered from the accused. It is further admitted that he did not record the statement of Sangeeta during the period between August to October, 2011. He did not interrogate persons whose sims were used in mobile phone of the deceased, but sim was in the name of the father of Harender, who was interrogated. He did not seize any document regarding the ownership of mobile phone belonged to deceased which was seized during investigation. He visited Om bhatta only once or twice during 23.08.2011 to 30.08.2011, but it was not surrounded by the boundaries and was opened space. He did not depute anyone to protect intactness of crime spot, but owner of bhatta was instructed not to disturb the scene of crime. It is further admitted that no recovery was made on 23.08.2011, as no one could point out the exact spot where dead body of deceased was dumped and Raju @ Bihari was not arrested by that time. It is FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 27/93 denied that bones, teeth and ashes shown to be recovered from Om Bhatta were planted upon the accused.
6.36. PW36 Ajit Singh, Nodal Officer of Vodafone has proved CDRs of mobile phone Nos. 9811741002 and 8860474871 as Ex. PW36/A, but CDRs of abovesaid mobile numbers provided to IO earlier are not available and documents to this effect are Mark PW36/A1 (colly) and his report is Ex. PW36/B.
7. DW1 Naresh Chand was the neighbour of accused Manoj and has deposed that the relations of Manoj and his sister were not cordial on account of dubious conduct of Rajesh and they had no visiting terms. He was not aware about routine work or outside life of accused Manoj or about his friendship or to whom he used to meet.
8. I have heard the arguments and perused the record. Perusal of the record would show that this case is totally based upon the circumstantial evidence and there is no direct evidence against any of the accused persons that they committed robbery and murder of the deceased. Before deciding this case, it is necessary to ascertain legal parameters of proving such a case based upon the circumstantial evidence. The first leading case setting down the principles of circumstantial evidence is titled Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, in which, it is held that the onus to prove the circumstances is on the prosecution and the complete chain of circumstances must be proved beyond doubt. In a recent judgment titled Gargi v. State of Haryana, (2019) 9 SCC 738, the Hon'ble Supreme Court has summarized the law of circumstantial evidence as under:
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 28/93
18. It remains trite that in judicial proceedings, proof is made by means of production of evidence, which may be either oral or documentary. As regards its nature, the evidence is either direct or circumstantial. The direct evidence proves the existence of a particular fact that emanates from a document or an object and/or what has been observed by the witness. The circumstantial evidence is the one whereby other facts are proved from which the existence of fact in issue may either be logically inferred, or at least rendered more probable. [A Text Book of Jurisprudence by G.W. Paton, 4th Edn., p. 598.] 18.1. In umpteen number of decisions, this Court has explained the essentials before a particular fact could be held proved by way of the proof of other fact or facts; and has expounded on the principles as to how circumstantial evidence need to be approached in a criminal case. We need not multiply on the case law on the subject; only a brief reference to the relevant decisions would suffice.
18.2. In Chandmal v. State of Rajasthan [Chandmal v State of Rajasthan, (1976) 1 SCC 621 : 1976 SCC (Cri) 120], this Court said : (SCC p. 625, para 14) "14. It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests.
Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused's guilt."
18.3. In Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487], this Court laid down the golden principles of standard of proof required in a case sought to be established on circumstantial evidence with reference to several past decisions, including that in Hanumant v. State of M.P. [Hanumant v. State of M.P., AIR 1952 SC 343 : 1953 Cri LJ 129] , in the following : (SCC p. 185, paras 153-54) "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 29/93 (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 Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033] where the observations were made : [SCC p. 807, para 19 : SCC (Cri) p. 1047] '19. ... 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 distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
18.4. In the decision cited by the learned counsel for the appellant in Sonvir [Sonvir v State (NCT of Delhi), (2018) 8 SCC 24 :
(2018) 3 SCC (Cri) 486] , this Court, after taking note of the other cited decisions, pointed out the principles as under : (SCC p. 52, para 82) "82. ... Law of conviction based on circumstantial evidence is well settled. It is sufficient to refer to the judgment of this Court in Ramesh v. State of Rajasthan [Ramesh v. State of Rajasthan, (2011) 3 SCC 685 : (2011) 2 SCC (Cri) 54] where in para 17 the following has been held : (SCC p. 693) FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 30/93 '17. Before we proceed with the matter, it has to be borne in mind that this case depends upon circumstantial evidence and, as such, as per the settled law, every circumstance would have to be proved beyond reasonable doubt and further the chain of circumstances should be so complete and perfect that the only inference of the guilt of the accused should emanate therefrom. At the same time, there should be no possibility whatsoever of the defence version being true.'"
18.5. Thus, circumstantial evidence, in the context of a crime, essentially means such facts and surrounding factors which do point towards the complicity of the charged accused; and then, chain of circumstances means such unquestionable linking of the facts and the surrounding factors that they establish only the guilt of the charged accused beyond reasonable doubt, while ruling out any other theory or possibility or hypothesis. 18.6. Incidental to the principles aforesaid, which are neither of any doubt nor of any dispute, profitable it would be to keep in view the caveat entered by G.W. Paton [A Text Book of Jurisprudence by G.W. Paton, 4th Edn., p. 598.] as regards circumstantial evidence thus:
"On the other hand, circumstances may mislead or false clues may have been laid by the wrongdoer to cast suspicion on another." [ This has been stated with reference to 514 in Criminal Law by C.S. Kenny wherein, it is cautioned that: though 'circumstances cannot lie', they can mislead. They may even have been brought about for the very purpose of misleading, as when Joseph's silver cup was placed in Benjamin's sack, or when Lady Macbeth 'smeared the sleeping grooms with blood'.]
9. Now the case in hand has to be adjudicated. As per allegations of the prosecution, all the accused persons under a criminal conspiracy hired a cab with driver / deceased from Delhi and took him to Bulandsher where they robbed him of his car and articles and committed his murder. To prove these charges, prosecution has led circumstantial evidence regarding criminal conspiracy as well murder of the deceased besides robbery and also recovery of robbed articles of the deceased at the instance of accused.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 31/93
10. The main charges against the accused persons are u/s 120B and section 302/34 r/w 120B IPC. In fact, both charges are inter-related and evidence is also common due to both the charges are being adjudicated together. However, standard of evidence to prove a criminal conspiracy is mostly circumstantial as criminal conspiracy is hatched in secrecy and law to this effect may be seen under section 120A and 120B IPC. Criminal conspiracy has been defined under section 120A, which is punishable under section 120B of IPC as under:
Section120A- When two or more persons agree to do, or cause to be done .-
(1) all illegal act, or (2) an act which is not illegal by illegal means, such an agree-
ment is designated a criminal conspiracy;
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
Section 120 B. Punishment of criminal conspiracy-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 32/93 In view of the above said definition the elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means,
(d) in the jurisdiction where the statute required an overt act. "The essence of this criminal conspiracy is the unlawful combination and ordinarily this offence is complete when combination is framed. From this it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design."
11. For an offence punishable under Section 120B IPC, prosecution need not necessarily to prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 33/93 means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
12. Normally there cannot be direct evidence in case of criminal conspiracy and any agreement between persons to do an illegal act or any legal act by illegal means may be proved either by direct evidence or by circumstances or by both. However, it is a matter of common experience that direct evidence to prove conspiracy is rarely available and usually circumstances before, during and after occurrence have to be considered and proved to decide about the complicity of accused to a conspiracy. Privacy and secrecy are the characteristics of this conspiracy as direct evidence of a conspiracy is seldom available. In fact, it is not always possible to give affirmative evidence about the date of the formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.
13. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub-section (2) of Section 120 A, then FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 34/93 in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B IPC and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, to commit the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established, the act would fall within the trapping of the provisions contained in Section 120B IPC [S.C. Bahri v. State of Bihar, AIR (1994) SC 2420].
14. Criminal conspiracy is a matter of discussion in many cases before the Hon'ble Apex Court and one of such leading cases is titled Kehar Singh and Ors. v. The State (Delhi Administration), AIR (1988) SC 1883 and the observation of the court is as under:
"Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prose- cution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, how- ever, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of the two per- sons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts shar- ing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other materials. (See: State of Bihar v. Paramhans, (1986) Pat LJR 688.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 35/93 To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is neces- sary, In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a par- ticular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use Finally, when the ultimate offence consists of a chain of actions, i would not be nec- essary for the prosecutions to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do so, so long as it is known that the collaborator would put the goods or service to an unlawful use. (See State of Maharashtra v. Som Nath Thapa, J] (1996) 4 SC
615. We may usefully refer to Ajay Agarwal v. Union of India and Ors., JT (1993) 3 SC 203. It was held:
"8...........It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of conspir- acy. Conspiracy is conceived as having three elements. (1) agree- ment; (2) between two or more persons by whom the agreement is effected: and (3) a criminal object, which may be either the ulti- mate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immate- rial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Den- man in Jones' case that an indictment for conspiracy must "charge a conspiracy to do an unlawful act by unlawful means"
and was elaborated by Willies, J. on behalf of the judges while re- ferring the question to the House of Lords in Mulcahy v. Reg, and House of Lords in unanimous decision reiterated in Quinn v. Leathem:
'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful; punishable of for a criminal object, or for the use of criminal means.' The Court in B. G. Barsay v. State of Bombay, held:
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 36/93 "The gist of the offence is an agreement to break the law. The par- ties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the India Penal Code, an act would be illegal if it is an offence or if it is prohibited by law."
As such, it stands proved that a criminal conspiracy has to be proved with the circumstances indicating towards aim and object likely to be achieved by this conspiracy and lack of direct evidence is not a ground to discard the conspiracy.
15. Not only IPC, but section 10 of the Evidence Act has also prescribed the criteria of evidence to prove such conspiracy. Section 10 of Evidence Act is as under:
"10. Things said or done by conspirator in reference to common design.-- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
16. The language employed in Section 10 makes it explicit that anything said or done by a co-conspirator in reference to their common intention to commit an offence after the time when such intention was first entertained by any one of them, would be relevant fact as against each of the co- conspirator. In a case titled Bhagwandas Keshwani and another vs. State of Rajasthan, (1974) 4 SCC 611, the Supreme Court has observed that in cases FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 37/93 of conspiracy, better evidence than acts or statements of co-conspirators in pursuance of the conspiracy is hardly ever available. It was observed that any conspiracy to do an illegal act would invariably been drawn up in se- crecy and therefore, independent witnesses may be hard to come by. As such, it was held that things said or done by a co-conspirator in reference to com- mon design was admissible in evidence and could be used against the other accused(s).
17. This concept of section 10 is further explained in Ram Narayan Popli v. CBI, (2003) 3 SCC 641: 2003 SCC (Cri) 869 at page 779 that:
346. It was held that the expression "in reference to their common intention" in Section 10 is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Anything said, done or written is a relevant fact only.
"... 'as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it'. ... In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour." (AIR p. 687, para 8) We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 38/93 acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC (Cri) 561] held that to prove criminal conspiracy, there must be evidence, direct or circumstantial, to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.
18. A joint reading of section 120B IPC and section 10 of Evidence Act made it clear that the concept of joint liability has proved that personal active involvement of any conspirator with main accused is not necessary but facilitation to main accused to commit some crime is sufficient to involve him to a crime being part of such conspiracy. The parameters of criminal conspiracy u/s 120B IPC are much wider than common intention under section 34 IPC. Similar proposition has laid down in case titled Gopi Nath v. State of U.P. (2001) 6 SCC 620 as under:
"8. ... Even the doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 39/93 result of them all, as if he had done them himself, for the whole of the criminal action--be it that it was not overt or was only a covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a preconcerted or prearranged plan or one manifested or developed on the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
In view of the above said law, it is clear that the standard of evidence to prove a criminal conspiracy is just circumstances which may be inferred by the circumstances as well as conduct of the accused persons who were part of this criminal conspiracy.
19. Now it is clear that the standard of evidence to prove criminal conspiracy is mostly circumstances against the accused persons and also surrounding circumstances under which this offence was committed. Now, I am taking up the charges against the accused persons in the present case.
20. Section 120B and 302/34 r/w 120B IPC: Prosecution has alleged that accused persons namely Jitender @ Jeetu, Manoj, Kaushal, Seema with JCL-B hatched a criminal conspiracy under which they hired the taxi of deceased to Sikandrabad/ Bulandshar, robbed and murdered him. They dumped his dead body into a brick kiln. To prove abovesaid charges, prosecution has examined witnesses who witnessed one of accused persons accompanied with deceased namely Kaushal when he hired a cab from Delhi FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 40/93 and thereafter, one of the co-accused confessed his guilt before one of his relatives / PW1. As such, all such circumstances have to be seen.
21. The first circumstance against accused persons is last seen togetherness of co-accused Kaushal with deceased Keshav Gautam when they left Delhi to Sikandarabad with the cab of deceased. Accused Kaushal was the first person who approached to the deceased under a criminal conspiracy to take him to Sikandarabad, UP for the purpose of robbery of his car. PW Sharafat Ali was the first person who met accused Kaushal at the office of Fine Tour and Travels and prosecution has examined him as PW9. PW9 has deposed that on 07/06/2011, at about 6:30 pm, accused Kaushal met him outside the office of Fine Tour and Travels and negotiated to hire his taxi for Sikandrabad, UP. He quoted fair charges of Rs. 2400/- for to and fro and accused made counter offer of Rs. 2200/- for which he was agreed. However, PW9 had an advance booking to Noida so he accepted booking, subject to condition of non-availability of his customer who had already booked, but his customer called him due to he passed on this booking to deceased Keshav Gautam. He has further deposed that deceased Keshav was present at the office of Fine Tour and Travels to verify any booking for him, so he accepted that booking for Sikandrabad, UP. Deceased had come to the office of Fine Tour and Travels by his bike so he accompanied with accused to his home by that bike and picked up his car from his house and went to Sikandarabad, UP, PW9 he went to Noida on his booking.
22. The above said testimony of PW9 Sharafat has been duly corroborated by PW5 Sanjeev Kumar, who along with his brother Pradeep Kumar (PW7) was going to his home from his Cable TV office and witnessed that deceased FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 41/93 Keshav along with accused Kaushal was going to his home by his motorcycle. PW5 enquired from the deceased as to where he was going and deceased informed that 'Sikandrabad baarat mein aana jana karna hai'. After sometime, he saw that the deceased along-with accused Kaushal went away by his Indica Car and deceased was in driver seat. In fact, he saw the deceased alive leaving with co-accused Kaushal by his car. On next day, he came to know that deceased Keshav had not returned back.
23. Not only the examination in chief, but during cross examination also, PW5 stood by his testimony despite detail cross examination by the accused persons. He has categorically admitted that on 07.06.2011, when he along with his brother (PW7) was going to his house from his office and witnessed their togetherness and no other person passed through there at that time. He came to know on 08.06.2011 itself that deceased Keshav Gautam had not returned back home and his family members had lodged a missing complaint with police. However, he also disclosed this fact to police during investigation, but he did not remember the date when he disclosed about it. Similarly, PW7 Pardeep Kumar, who is the brother of PW5 Sanjeev Kumar and was accompanied him also witnessed the deceased with co-accused Kaushal, who was pillion rider on motorcycle of the deceased. On 07.06.2011, deceased also informed him that 'Sikandrabad ka anaa-jana karna hai'. In fact, both the PWs have duly proved that they witnessed the deceased and accused together when they left Delhi. On the other hand, accused persons have failed to bring any material contradictions in the testimonies of PW5, PW7 and PW9 to dispute that the deceased was not lastly left seen alive in the company of co-accused Kaushal.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 42/93
24. Besides the abovesaid testimonies of abovesaid witnesses, PW33 Mazid Khan, who was the owner of Fine Tour and Travels, has also corroborated that on 07/06/2011, in evening, he went to offer namaz and in his absence, his driver PW9 Sharafat was sitting in his office. Sharafat Ali (PW9) informed him that he received a booking for Sikandarabad, but that booking was accepted by deceased Keshav Gautam and he accompanied with said passenger left away. He has also proved that deceased Keshav used to get bookings from his office for his Indica Car No. DL-3CAC-3216, but he was not working regularly. He has further proved that the father of the deceased namely Nathu Ram also enquired from him about the deceased and he informed him accordingly. Though PW33 did not witness the visit of accused Kaushal to his office, yet he has corroborated the testimony of PW9 to this effect.
25. Not only PW33, but wife of the deceased namely Sangeeta / PW34 has also corroborated that on 07/06/2011, at about 7:00 pm, her husband along with a boy accompanied him to his home from the office of Fine Tour and Travels left to Sikandrabad by his vehicle / car no. DL-3CAC-3216. She has further corroborated that the deceased had brought that booking from the office of Fine Tour and Travels. Deceased lastly made a call to her at about 10:00 pm and informed that he was at Bulundsher and would reach home by next day, but he did not return. She informed PCR on which basis investigation was initiated.
26. Besides the oral testimonies of PWs, DD entry No.13A, which is Ex.PW3/A, has also corroborated the fact that the deceased left his house with passenger brought from Fine Tour and Travels. Though there was a FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 43/93 dispute of date of leaving of the deceased with accused, yet it has been explained by statement of father of deceased and is not fatal to this case. PW4 Nathu Ram has also corroborated that he was informed by his daughter- in-law (PW34) about the deceased, who left house with accused Kaushal / passenger to Sikandrabad, UP. He has also corroborated that he enquired from the office of Fine Tour and Travels regarding the deceased and Mazid Khan (PW33) assured him to bring his son back. PW13 ASI Ramesh Singh has also corroborated that he examined the father of deceased and recorded his statement. As such, all testimonies have pointing out towards the passenger, who has been identified by the witnesses as accused Kaushal, who took the deceased with him to Sikandrabad, UP wherefrom deceased informed his wife at about 10:00 pm that he would return back by next day. As such, it stands proved that the deceased was seen in the last company of co-accused Kaushal and thereafter, got disappeared.
27. Admittedly, last seen togetherness of the deceased with accused is a material circumstance against the accused and put a burden upon the accused to explain the time or point when he left the last company of the deceased in alive condition. The failure of any explanation of accused to this circumstance leads to an adverse inference against the accused. However, last seen theory would come into play where time gap between the point of time when accused and deceased were seen alive together and reported death of the deceased was so narrow to rule out any intervention of any other one to provide him opportunity to kill the deceased. A similar observation has been made by the Hon'ble Supreme Court in case titled State of UP v. Satish 2005 (3) SCC 114 that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 44/93 alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. It is further held in Ramreddy Rajeshkhanna Reddy v. State of UP 2006 (10) SCC 172 that the last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration. In this case, co-accused Kaushal has not tendered any such explanation when he left the last company of the deceased.
28. Further, Section 106 of Evidence Act has put a burden upon the accused to tender a plausible explanation to his last seen togetherness with the deceased to rebut this presumption of the facts within his personal knowledge. To ascertain the extent of burden, it is necessary to see section 106 of Evidence Act as under:
[Section 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the bur- den of proving that intention is upon him.
(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket on him.] FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 45/93
29. This abovesaid section provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. The Hon'ble Supreme Court of India had occasion to deal with this presumption of section 106 of Indian Evidence Act in State of Rajasthan v. Thakur Singh VI (2014) SLT 260 where death of wife was unnatural and witnesses turned hostile. The burden of proof was fixed upon the accused to explain the death of his wife took place within the four corners of the house. Prior to it, the Hon'ble Supreme Court of India had interpreted this section in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well high impossible or extremely difficult for the prosecution to prove that fact. It was observed by the court as under:
"This [section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve if of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The work "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. It the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than that he whether he did or did not."
30. The observation of the Hon'ble Supreme Court made in State of West Bengal v. Mir Mohammad Omar, (2000) 8 SCC 282 is also relevant. The court cited an example to explain the principle behind section 106 of the Evidence Act in following words:
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 46/93 "During arguments we put a question to learned senior counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."
31. In view of the abovesaid interpretation of presumption of Section 106 of Evidence Act, the burden of proof to prove the facts establishing the guilt of accused does not dispense with by the prosecution, however prosecution may not prove those facts which are exclusively within the knowledge of the accused and the burden to rebut this presumption has been put upon him. If the facts established the case to raise a presumption against the accused, then the failure to discharge this presumption would cost the accused.
32. In this case, deceased left his house with Indica Car No. DL-3CAC 3216 with accused Kaushal to Sikandrabad, UP at about 7:00 pm on 07/06/2011. Deceased was in the same area when he made his last call to his wife Sangeeta / PW34 who has also proved this fact. Even this fact is also proved by CDR of the mobile phone of the deceased, as per which, he made last call from Bulundsher area to his wife and mobile CDR of wife has also corroborated it. It is pertinent to mention here that admittedly, accused has been doing a petty job in Delhi, but still he engaged a taxi / cab to Sikandrabad, Bulandsher, UP from Delhi without tendering any explanation as to why he spent so much amount on taxi/cab according to his financial condition, whereas buses were also available. He was supposed to prove as to what was his urgency for which he engaged a taxi/cab to go to Bulundsher / FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 47/93 Sikandrabad instead of by a local bus which was available on cheap fair. This circumstance has also put an additional burden upon accused to tender an explanation regarding his last company with the deceased. The last company of the deceased with him stands proved by prosecution witnesses and in such situation, he was supposed to tender an explanation that the deceased had left his company alive, but entire record is silent as to when the deceased left the last company of the accused alive.
33. Further, accused Kaushal was supposed to put forward some explanation not only during cross examination of the witnesses, who has proved his last togetherness with the deceased, but also during his statement u/s 313 CrPC. However, he has just replied to all incriminating evidence "it is incorrect" or "witnesses are planted". Accused was supposed to tender a satisfactory explanation to the fact which was within his personal knowledge in terms of section 106 of Evidence Act. No doubt, accused was not supposed to examine any witness to prove this fact, but he was definitely supposed to put forward some defense during prosecution evidence and also to put forward some explanation u/s 313 CrPC to rebut this presumption, which is not done by him.
34. The Hon'ble Apex Court has held in case titled Jagroop Singh v. State of Punjab, (2012) 11 SCC 768 that if accused failed to tender any plausible explanation to incriminating evidence, it would serve the purpose of fulfilling the missing link of the circumstances. The relevant observation is as under:
36. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 48/93 explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. In State of Maharashtra v.
Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263], it has been held that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him under Section 313 of the Code of Criminal Procedure.
In view of the facts, it stands proved that accused Kaushal was in the last company of the deceased and has failed to tender any explanation and shall be presumed that he was part of conspiracy under which deceased was killed.
35. Not only this, the disclosure statement of accused Kaushal, which is Ex.PW15/D, has also revelation the similar facts which have been proved by PW5, PW7, PW9, PW33 and PW34. Accused has disclosed in his disclosure statement that he fetched a car from Fine Tour and Travels and left with deceased from Delhi to Sikandarabad and this information has been duly corroborated by the testimonies of PW5, PW7 and PW9. As such, this information is well admissible against him being a verified information. In fact, the disclosure statement of accused Kaushal coupled with such verified information has proved that he took the deceased to Bulandsher under a criminal conspiracy and his implication to this case stands proved. Even the testimony of PW1 has also proved that accused Manoj revealed this information to him that accused Kaushal was sent to Delhi to hire and bring a cab driver to rob him and they him and dumped his dead body.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 49/93
36. Further, accused Kaushal was offered to undergo his TIP, but accused refused to undergo for TIP proceedings. Admittedly, an adverse inference may be raised against accused, if he refuses to undergo for TIP and after drawing such adverse inference against accused Kaushal, it stands proved that he was the last person with deceased and also part of conspiracy under which deceased was murdered. PW32 has proved TIP proceedings which are Ex. PW32/A to Ex. PW32/C and have corroborated this fact.
37. Next circumstance against the accused persons is extra-judicial confession of accused Manoj made in the presence of PW1. Admittedly, the other accused persons were arrested on the basis of the information furnished by PW1 Rakesh Kumar, when police recovered a mobile phone of deceased from him, as he handed over this mobile to his friend Harender in lieu of repairing of his mobile phone and police approached him. PW1 has proved an extra-judicial confession made by accused Manoj to him in front of another accused Jitender @ Jeetu and Seema. This extra- judicial confession is another circumstantial evidence against all accused to implicate them to this case.
38. To prove this extrajudicial confession of accused Manoj, the testimony of PW1 Rakesh Kumar is material as he was the first person who revealed to the police that accused Manoj approached him on 07/06/2011, at midnight to park the robbed car of deceased and co-accused Seema and Jitender @ Jeetu were also with him and were sitting inside that car. All of them came inside of his shop and sit there. The testimony of PW1 is material, who has deposed that on 07/06/2011, he was sleeping in his shop and at midnight someone FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 50/93 knocked shutter of his shop. He opened the door/shutter and saw that his maternal uncle Manoj was standing there and his known Jitender @ Jeetu and Seema were sitting in a blue colour Indica car. On his asking, he disclosed that they had come to park / hide that car and further revealed that car was hired from Delhi through accused Kaushal and they had killed the driver of the car and dumped his dead body into a bricks kiln. However, he did not allow them to park that car. PW1 has further proved that accused Seema was having two mobiles and threw one of them on the road by stating to Manoj 'tum mujhe yahan marwane ke liye laye ho', and all of them left away. PW1 picked that broken mobile phone and repaired it by changing its body and kept it. He has further proved that his friend Harender Kumar/PW2 asked him for a substitute mobile apparatus during repairing of his mobile by him and he provided that mobile. PW2 Harender returned that mobile phone after 2-4 days of its use. On 22.08.2011, police reached him with Harender and seized mobile phone vide seizure memo Ex.PW1/A. He got arrested accused persons namely Manoj, Jeetu and Seema.
39. The abovesaid testimony of PW1 Rakesh Kumar has proved that accused Manoj made his confession without any pressure or coercion. Even this confession was made in the presence of other co-accused also. Though PW1 has failed to disclose certain facts, yet he has admitted those facts during his cross examination by Ld. APP for State that accused persons were nervous when they came to his shop and accused Manoj also informed that car was hired / arranged through Kaushal from Delhi and they had killed the driver by strangulation and thrown his body in a running bhatta / brick Kiln. He has further admitted that accused Manoj also threatened him to kill, if he disclosed that information to anyone. Car brought by the accused persons is FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 51/93 identified as Ex. PW1/P2.
40. PW1 stood by his testimony despite a lengthy cross examination conducted by the accused persons which going on for many dates of hearings together. PW1 has reiterated that he was sleeping in his shop when accused Manoj knocked the shutter of his shop and made his confession. Though he had no visiting terms to Jitender@ Jeetu, Seema and Kaushal who was working in Delhi at that time, yet accused Jitender@ Jeetu and Seema were accompanied with Manoj and also sat inside his shop on floor where Manoj made this confession. Accused Jitender @ Jeetu threw a mobile phone in a fit of rage which was picked by PW1 and handed over to the police after disclosing all facts. PW1 has remained constant in his stand not only before police u/s 161 CrPC, but also in his statement u/s 164 CrPC made before Ld. MM / PW24 which is Ex.PW24/B. This statement u/s 164 CrPC has been proved by PW1 and PW24 and has not been disputed by the accused during the testimony of PW24, Sh. Amitabh Rawat, the then Ld. MM. A similar testimony, as deposed before police as well as Ld. MM, has been repeated before this court as well. In fact, there is no reason to believe that PW1 would falsely implicate the accused persons, especially when accused Manoj is his maternal uncle(maama) and accused persons have also not attributed any motive to PW1 to falsely implicate them. No doubt, accused Manoj has taken a stand that accused and PW1 Rakesh were not sharing cordial relations because of the conduct of Rakesh, but still it is not proved. Manoj has examined DW1 to prove this fact, but DW1 could not prove that the conduct of PW1 was not good. He has failed to prove any offence or incident which may prove that the conduct of PW1 was not good or he had any grievance for which he could have falsely implicated accused persons to this case.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 52/93
41. In fact, statement of PW1 has duly proved that he was running a shop of mobile repairing and on 07/06/2011, at midnight, accused Manoj, Seema and Jitender @ Jeetu came to his shop with a blue colour Indica car Ex.P1. The came inside his shop and sat there on floor and were very nervous, whereas Seema had a purse and two mobiles, out of which, one was thrown there. Accused Manoj disclosed that car was of dau-number ki and asked to allow him to hide this case in his house/ shop. Not only this, Manoj also disclosed on enquiry that car was arranged from Delhi through accused Kaushal and they had killed the driver by strangulation and dumped his body in brick kiln. However, he did not allow them to park that car being committed a murder by them and all of them left away by smashing a mobile there. The abovesaid testimony of PW1 has been duly corroborated by PW2 Harender Kumar also regarding the mode and manner of recovery of this mobile phone of the deceased from him. This recovery of mobile phone has also been proved by PW1, PW15 ASI Bhishm Rana and IO /PW35 Insp. Sudhir Kumar.
42. Ld. Counsels for the accused have argued that the confession of accused Manoj before PW1 Rakesh Kumar is no evidence, especially against co-accused as there is no evidence against them and merely statement of co- accused Manoj is not admissible in evidence that they committed this offence and is of no use. It is further argued that PW1 Rakesh Kumar was found in possession of a stolen mobile phone and if it is assumed that this mobile belonged to the deceased, then PW1 was supposed to be an accused to this case, but police have saved him by implicating the accused persons. It is further argued that police have not seized any proof that the alleged mobile phone belonged to the deceased only and, in the absence of any such proof, it FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 53/93 could not be proved that a similar mobile phone was robbed by the accused persons from the deceased or actually it belonged to the deceased. It is further submitted that the confession of accused persons made before the police is ditto as of the statement of PW1, which suggests that the police have tried to prove its case through PW1 and that too without any corroboration from any other evidence. It is further argued that if the testimony of PW1 is accepted, then it would be miscarriage of justice and testimony of PW1 is liable to be discarded.
43. On the other hand, Ld. APP for State has argued that the submissions of Ld. Counsels for the accused have no force. It is argued that PW1 Rakesh Kumar is an independent witness of the prosecution who has made his volunteer statement firstly before the police and thereafter before the court, which has been duly testified and has proved that this extra judicial confession of accused Manoj has proved the involvement of accused persons. It is further submitted that the prosecution has not only proved this extra judicial confession of accused Manoj made in the presence of co-other accused, but also other incriminating circumstances which have proved the involvement of accused persons to this offence. It is prayed that all the accused are liable to be convicted.
44. Admittedly, the version of the statement of PW1 is clear that he has proved an extrajudicial confession of accused Manoj, which was made by him in the presence of other co accused namely Jitender @ Jeetu and Seema. Accused Manoj disclosed the entire sequence of incident including disposal of the dead body of the deceased also. This extra-judicial confession of accused Manoj made before PW1 Rakesh Kumar and proved by him before FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 54/93 this court is very well admissible in law and has proved the involvement of accused persons to this incident.
45. The law regarding extra judicial confession is discussed in case titled Sahadevan v. State of T.N., (2012) 6 SCC 403 and the relevant observations of the Apex Court are as under:
14. It is a settled principle of criminal jurisprudence that extra-
judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.
15. Now, we may examine some judgments of this Court dealing with this aspect.
15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that:
(SCC p. 265, para 10) "10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
15.2. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158 : 1997 SCC (Cri) 1249] the Court held that: (SCC p. 162, para 8) "8. ... It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession."
15.3. Again in Kavita v. State of T.N. [(1998) 6 SCC 108 : 1998 SCC (Cri) 1421] the Court stated the dictum that: (SCC p. 109, para 4) FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 55/93 "4. There is no doubt that convictions can be based on extra-
judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the [witnesses] to whom it is made."
15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p. 192, para 19) "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made." The Court further expressed the view that: (SCC p. 192, para 19) "19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...." 15.5. In Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230 :
(2008) 2 SCC (Cri) 264] the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material as unjustified, observed:
(SCC pp. 265-66, paras 87 & 89) "87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction.
It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; and (iii) corroboration.
***
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
15.6. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 56/93 604 : (2011) 1 SCC (Cri) 79] held that: (SCC p. 611, paras 29-30) "29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore [(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj v. State of U.P. [AIR 1959 SC 902 : 1959 Cri LJ 1219], Sivakumar v. State [(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320] and Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 :
(2009) 3 SCC (Cri) 1082] ]
30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."
15.7. Dealing with the situation of retraction from the extra- judicial confession made by an accused, the Court in Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740 :
(2009) 2 SCC (Cri) 881] held as under: (SCC pp. 772-73, para
53) "53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."
15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v State of W.B.[(2011) 11 SCC 754 : (2011) 3 SCC (Cri) 620] and Pancho v. State of Haryana [(2011) 10 SCC 165 :
(2012) 1 SCC (Cri) 223] .) FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 57/93
46. After going through the abovesaid case law, it is clear that there is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the [witnesses] to whom it is made. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-
judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it.
47. In view of the above said law, it stands proved that PW1 was/is relative of accused Manoj and nephew in relation. Accused persons have not filed any proof or document that they had any previous enmity with him for which he would falsely implicate them. No doubt, one DW1 has been examined by the accused Manoj, but I have already observed that his testimony has failed to prove any material fact that accused and PW1 had no cordial terms or PW1 is of dubious conduct person. Contrary to it, DW1 has failed to prove the presence of accused Manoj on 07/06/2011 i.e. on the day of incident. He knew the accused Manoj well, but he did not know character of this accused, due to his testimony is not sufficient to discard the reliable testimony of PW1.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 58/93
48. The reliability of the testimony of PW1 is also proved by the fact that PW1 is constant in his testimony which has been testified on multiple occasions. Firstly, he deposed before the police, thereafter u/s 164 CrPC before Ld. MM and thereafter, before this court and his version has remained constant every time. No doubt, he has one contradiction in his testimony regarding throwing of mobile phone by accused on road near his shop, as he firstly deposed that it was thrown by Seema, whereas subsequently he deposed that it was thrown by Jitender @ Jeetu, but this contradiction is not material. Admittedly, both accused were together and this incident took place way back in the year 2011, whereas his testimony was recorded after 3 years and during this period some variations were expected, as human brain cannot remember everything with photographic memory. As such, testimony of PW1 is reliable and can be acted upon to ascertain the guilt of the accused persons.
49. Further, Ld. Counsel for accused has argued that the mobile phone of the deceased was allegedly recovered from PW1 and there was no evidence that it belonged to the deceased, due to it cannot be said that mobile phone was recovered from the accused or at their instance. However, this argument has no substance. It is not disputed that mobile Ex. P1 was recovered from the possession of PW1 and connection of this mobile to the deceased has duly proved by the contents of DD entry regarding missing of deceased lodged by his wife and her mobile number was also mentioned there. CDRs of this mobile number of the deceased and his wife have also corroborated by IMEI number of this instrument recovered from PW1. The last conversation of the deceased to his wife also took place by this mobile connection only and CDRs of both mobiles have also corroborated this fact. The last cell location of this mobile phone as well as call was found at Bulandshar.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 59/93 PW35 / IO has already proved that he put this mobile apparatus under surveillance and it was operated by PW2 who led to PW1 wherefrom it was seized. PW33 Smt. Sangeeta has also proved and corroborated all such fact which have also been corroborated by PW4 Nathu Ram, who was the father of deceased. All such facts have duly proved that this mobile phone belonged to the deceased.
50. However, Ld. Counsels for the accused have desperately argued that the ownership of this mobile phone is not proved on record. The possession of the deceased on mobile phone cannot be disputed just because of its ownership. Again, this argument has no force. The conduct of Indian citizens is a very peculiar and may peoples carry mobile phones or other valuables without ownership and sometimes secondhand mobiles are also used and again without ownership documents. Even mobile connections are also used without any ownership or in the names of relatives or known, due to sometimes ownership proof of many articles is not available or seized by the police. But, in such circumstances, it cannot be said that the particular article did not belong to its occupant. The observation of the Hon'ble High Court of Delhi made in case titled Gajraj v. State CRL. A. No- 461/2008 dated 24/2/2009 is relevant that it is not unusual in India to conduct one's affairs in a most un-officious manner. Friends using the mobile phones of their friends, relatives of their relatives and inter se even acquaintances are not unknown in India. In view of this judgment, it cannot be ruled out that the deceased was using the same mobile phone as well as number by which police reached to PW1. Even his wife was also using the similar mobile number which is also mentioned in DD entry lodged by her, on which, deceased made his last call, whereas there was no suspicion on any accused by that time. As such, FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 60/93 mobile details have duly proved that the mobile numbers used by the deceased and his wife were similar of which possession has been proved by PW1.
51. No doubt recovery of this mobile was not made directly from the accused and cannot be considered u/s 27 of Evidence Act, but this recovery is well connected to the accused in terms of section 8 of Evidence Act as his conduct. In fact, accused Seema was in possession of this robbed mobile phone and was thrown either by Seema or Jitender at the shop of PW1 soon after the incident and possession of Seema stands proved. As such, it is again an incriminating circumstance against the accused persons for which they have failed to tender any explanation and has proved their involvement to this case.
52. Next circumstance against the accused persons is recovery of weapon of offence as well as robbed watch of the deceased recovered at the instance of accused Manoj. All the accused persons disclosed to the police in their disclosure statements that they robbed deceased by using a country made pistol/ katta and his mobile phone, purse and watch were robbed. The disclosure statements of accused persons namely Raju @ Bihari which is Ex.PW20/C, Seema which is Ex.PW12/A, Jitender @ Jeetu which is Ex.PW15/A, Kaushal which is Ex.PW15/D and Manoj which is Ex.PW25/E coupled with the testimony of PW1 have proved that accused Manoj disclosed that he used this weapon during the incident and could have got recovered from his house. He led to the police team to his house and got recovered this weapon as well as robbed watch of the deceased from his gher. Though this recovery has been disputed by the accused, yet suggestion put by FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 61/93 Ld. Counsel for accused Manoj is relevant. He has put a suggestion to PW25 that "it is wrong to suggests that this recovery was made in the presence of family members of the accused" thereby meaning that recovery was made at his instance. Police witnesses have duly proved that Manoj led the police to his house and got recovered this weapon of offence as well as robbed watch from his gher, which has been duly identified by PW33/ wife belonging to her deceased husband.
53. To make a recovery admissible u/s 27 of Evidence Act, there are certain requirements of law and it is necessary to see those legal requirements. The mode and manner of recovery in custody has been dealt with in case titled Anter Singh v. State of Rajasthan (2004) 10 SCC 657, in which, scope of section 27 of Evidence Act has summed up as under:
"16. The various requirements of the section can be summed up as follows:
1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the facts discovered admissible.
2. The fact must have been discovered.
3. The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
4. The person giving the information must be accused of any offence.
5. He must be in the custody of a police officer.
6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
7. Thereupon only that portion of the information which related distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 62/93
54. It is further held in State of Maharashtra v. Damu (2000) 6 SCC 269 that:
"35. The basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or no exculpatory in nature, but if it results in discovery of a fact it becomes reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum."
In view of abovesaid law, it stands proved that the recovery from accused during his custody is admissible in law and there is no reason to disbelieve this recovery, if any material lapse is not pointed out.
55. PW25 has proved that accused Manoj made a disclosure statement Ex.PW25/E and on 10.11.2011, he led police team to the place where he threw the dead body vide pointing out memo Ex.PW25/F and got recovered a country made pistol with live cartridges, of which, sketch is Ex.PW25/G. The same were seized vide seizure memo Ex.PW25/H. One wrist watch of golden colour make Titan was also recovered at his instance vide seizure memo Ex.PW25/I and site plan of the recovery of country made pistol is Ex.PW25/J which was prepared by IO. As such, this recovery of weapon of this offence and watch of deceased which was stolen property at the instance of accused Manoj has proved involvement accused persons to this offence.
56. Ld. Addl. PP for State has argued that this recovery is not disputed and rather has proved that the accused persons committed murder of the deceased. On the other hand, Ld. Counsel for the accused has argued that this FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 63/93 recovery is planted upon accused and there is no evidence that this watch belonged to the deceased and accused cannot be connected to this recovery.
57. Admittedly, recovery of stolen property is material circumstance against any accused to prove his involvement. In this case, recovery of watch has been connected to accused Manoj, who allegedly entered into criminal conspiracy with other co-accused and committed this murder. Though Ld. Counsel for accused has disputed the identity of this watch, yet PW33 has proved that this watch belonged to her deceased husband and was gifted in her marriage to the deceased by her parents. No doubt, police did not seize any receipt of this watch, but merely absence of receipt of this watch doesn't mean that watch did not belong to deceased. The wife of the deceased was supposed to identify this watch being having a peculiar bonding with watch being gifted in her marriage, whereas accused has not claimed this watch belong to him. In such circumstances, it cannot be said that an unclaimed watch has been recovered at the instance of accused, which is not believable. The observation of the Hon'ble Supreme Court made in case titled Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 is relevant that it is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings particularly articles of personal use in the family and testimony of family members cannot be discarded that the testimony of witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement. As such, recovery of this weapon of offence as well as stolen watch stands proved. Even the argument of Ld. Counsel that no TIP of watch was got conducted has no force. On the other hand, accused has not offered any explanation to this recovery. He has not FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 64/93 tendered any explanation about this watch, as to whether and how it reached to his place, if not belonged to him. Similarly, no explanation has been tendered to the recovery of weapon of offence, which was also used during this incident. All such, facts have proved that this recovery is admissible not only u/s 27 of Evidence Act but also u/s 8 of the Evidence Act and stands proved beyond doubt.
58. Ld. Counsel for the accused has further argued that this recovery was made after such a long time and it is beyond explanation as to why accused kept this incriminating evidence with him and prosecution has not tendered any explanation to it. Admittedly, human brain is very complicated and sometimes it works very promptly and sometimes it works very safely. The testimony of PW1 coupled with disclosure statements of the accused has proved that all the accused became very anxious after this incident and were very disturbed and apprehensive when they reached to him, which suggests that they might have kept this evidence secretly or did not get time to dispose it off. Similarly car was robbed from the deceased and accused Manoj has disclosed in his disclosure statement that he plied it with bogus number plate and left in abandoned condition in the area of Dadra wherefrom it was also recovered with bogus number plate. This information is also relevant. It is quite possible that accused might have left it abandoned under the apprehension of their arrest for this murder, otherwise PW1 has duly identified this car before this court which was brought by the accused persons to his shop to park. As such, it is not fatal, if this car was not recovered at their instance. This watch and weapon recovered promptly soon after the arrest of accused and if recovery was made soon after arrest, then it cannot be said that it was delayed.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 65/93
59. However, Ld. Counsel has further emphasized that this recovery of car from abandoned place has proved that accused did not rob this car as alleged. However, disclosure statements of the accused persons have proved that they robbed this car and took it to PW1 to park there. They have also admitted that they plied car with fake number plate and the same was also recovered with fake number plate and information corroborated with their disclosure statement. Even this incident took place on 07/06/2011 and car was recovered by PS Kakor on 29/06/2011 itself, which has further corroborated that accused persons failed to dispose it off and left it abandoned. It was recovered in the nearby area where this incident was caused and testimony of PW1 has proved that they were in search of a place to hide that car and might have not found any safe place so they got rid of it in this manner. IO has already proved that accused disclosed that they arranged the forged number plate, but the person who prepared this fake number plate could not be located. As such, information furnished by accused Manoj in his disclosure statement that he left this car in the area of Kakor and recovery of this car from the same area has corroborated this information as well and plea has no substance.
60. Next circumstance against the accused persons is their inter-se disclosure statements recorded by the police. Section 30 of Evidence Act has specified that the confession of co-accused may be used against other accused. The disclosure statements of co-accused are admissible against each other to some extent and may be used as additional circumstance to rope them in, provided those statements be proved in view of section 30 of Evidence Act. Section 30 of Evidence Act came into interpretation before the Hon'ble Supreme Court of India in land mark judgment titled FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 66/93 Kashmira Singh v. State Of Madhya Pradesh, 1952 AIR SC 159 and has held as under:
"The confession of an accused person against a co-accused is not evidence in the ordinary sense of the term. It does not come within the meaning of evidence contained in sec. 3 of the Indian Evi- dence Act in as much as it is not required to be given on oath, nor in the presence of the accused and cannot be tested by cross-ex- amination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities. Such a confession can only be used to tend assurance to other evidence against a co-accused. The proper way to approach a case of this kind is, first, to marshal the evidence against the ac- cused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the con- fession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the con- fession he would not be prepared to accept".
61. In view of the abovesaid, it is clear that the disclosure statements of co-accused may be used for limited purpose of corroboration. In this case, the disclosure statements of all accused persons have disclosed that they have committed this murder. To rely upon such disclosure statements, it is necessary that the contents of disclosure statements must be corroborated by the other independent evidence and in this case, most of the facts of the disclosure statements have been duly corroborated by the evidence proved by other witnesses or by circumstances, due to such statements may be definitely used as an additional circumstance against the accused. The facts which have been duly corroborated by the disclosure statements like involvement of accused Kaushal to bring a cab with driver, robbery of mobile phone and FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 67/93 watch and their recovery, pointing out of the spot of incident as well as the spot of dumping of the dead body and recovery of weapon of offence etc. have duly proved that the informations furnished by accused in their disclosure statements have been duly corroborated. As such, this circumstance may be used against the accused persons and has proved their involvement to this case.
62. Not only this, the replies of the accused persons to these disclosure statements under section 313 CrPC have proved that their replies are "I don't know" or their signatures were taken on blank papers. In fact, they have not denied these disclosure statements and that too without tendering any explanation of their false implication. If existence of disclosure statements has not been denied by the accused and the facts mentioned in those disclosure statements have duly verified by independent sources or by information admissible u/s 8/ 27 of Evidence Act, then these may be definitely used against them to corroborate other circumstances and may be considered incriminating circumstances against them.
63. Further, IO has proved that all accused were arrested and made their disclosure statements, but accused have not cross-examined the IO on the points of arrest and disclosure statements. IO was put just simple suggestion that accused did not make any disclosure statement or their signatures were obtained forcibly, but how and why and in what manner, it is not explained. Accused persons were duty bound to tender an explanation as to what was the enmity of the police or complainant to implicate them in a false case, but they have stated only that the witnesses are interested, but in what manner, they are silent. As such, prosecution has successfully proved the involvement of all accused to this criminal conspiracy and murder of the deceased.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 68/93
64. Next circumstance against the accused persons is the information furnished by them in their disclosure statements u/s 24/25 of Evidence Act which could not be discarded in entirety. The portion of the statement which is not confessionary regarding confession of guilt of the accused to commit offence is excluded by Section 25 and 26 of the Evidence Act is relevant. The observation of the Hon'ble Supreme Court made in Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 is material as under:
19. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex.P-42, however is not wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and it is not hit by the provisions of section 25 of the Evidence Act. The relationship of the appellant with the deceased;
motive for commission of the crime and the presence of his sister- in-law PW11 do not amount to the confession for committing any crime. Those statements are non confessional in nature and can be used against the appellant as evidence under section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sward had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ext. P42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.
65. It is further held in Sandeep v. State of UP, (2012) 6 SCC 107 that admissible portion of the confession of accused may be considered against accused and the relevant observation of the judgment is as under:
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 69/93
52. We find force in the submission of the learned Senior Counsel for the State. It is quite common that based on admissible portion of the statement of the accused whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the court as to the nature of recoveries and as to how they came into possession or for planting the same at the places from where they were recovered. Similarly, this part of the statement which does not in any way implicate the accused but is mere statement of facts would only amount to mere admissions which can be relied upon for ascertaining the other facts which are intrinsically connected with the occurrence, while at the same time, the same would not in any way result in implicating the accused in the offence directly.
66. As such, in view of the abovesaid law, it stands proved that the disclosure statements of all accused persons, barring their admissions of guilt as well as mode and manner of committing this offence, are admissible in law and may be used to corroborate the testimonies of PWs and also to connect the missing link of the circumstances against them. All the accused have admitted in their disclosure statements that they conspired and hatched a conspiracy to eliminate the deceased to get rid of him after committing robbery of his car and other articles and such facts are relevant and corroborating to other circumstances. Even otherwise, accused persons are related to each other and their relationship may also be ascertained by their disclosure statements. As such, this circumstance is also relevant to connect the accused to this offence and has proved their involvement.
67. Next circumstance against the accused persons is their pointing out memos which were prepared during police custody. Accused persons have also pointed out the place of incident as well as spot where they dumped the dead body in a running brick kiln vide separate pointing out memos of accused namely Manoj which is Ex.PW25/F, by accused Kaushal which is FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 70/93 Ex.PW25/A, by accused Raju @ Bihari which is Ex. PW25/B, by accused Jitender @ Jeetu which is PW15/B and accused Seema which is Ex. PW15/C and are also relevant under Section 8 of Indian Evidence Act to prove their conduct as held by Hon'ble High Court of Delhi in Chandrakant Jha v. State, Criminal Appeal No-216/2015 dated 27/1/2016 and by Hon'ble Supreme Court in A.N. Venkantesh v. State of Karnataka (2005) 7 SCC
714. The recovery of body parts have substantiated this information also and is a material circumstance.
68. The main argument of Ld. Counsel for accused is that there is no recovery of the dead body, due to it could not be proved that the deceased is/ was actually killed by the accused persons. It is further argued that the prosecution has just proved that the deceased was allegedly lured to Sikandarabad/ Bulandsher by accused Kaushal and was killed by all, but dead body of the deceased has not recovered and in the absence of recovery of any dead body, it could not be proved that accused have committed this murder. It is further argued that DNA report of the deceased has also failed to confirm that alleged body parts recovered from brick kiln were of the deceased, due to accused are entitled for benefit of doubt. On the other hand, Ld. APP for State has argued that there is no such law that dead body has to be recovered to prove a murder and murder may be proved even without recovery of dead body. It is further submitted that the prosecution has duly proved with the testimony of PW14 Amit Gupta that the dead body of the deceased was dumped in his Bhatta/ brick kiln and this fact coupled with recovery of body parts has proved that the dead body was burnt by the accused persons and non-confirmation of identity through DNA profiling is not fatal to this case. It is prayed that accused persons are liable for FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 71/93 conviction.
69. Admittedly, dead body of the deceased has not recovered in this case and prosecution has argued that it was burnt by the accused persons with the help of co-accused Raju @ Bihari in a brick kiln owned by PW14. This fact has been hotly argued by the accused. However, before going through the facts of this case, it is necessary to go through law regarding necessity of recovery of dead body to prove a murder. This issue came before the Hon'ble Supreme Court in case titled Sevaka Perumal v. State of T.N., (1991) 3 SCC 471 as under:
In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out. It is unlikely that the dead body may be recovered. If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc. and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.
70. It is further observed in case titled Ram Gulam Chaudhary v. State of Bihar, (2001) 8 SCC 311 as under:
There can be no dispute with the proposition of law set out above. As is set out in the various authorities (referred to above), it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 72/93 must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are the persons who had committed the murder.
71. Further, in case titled Ramjee Rai v. State of Bihar, (2006) 13 SCC 229, it is held that:
22. It is now a trite law that corpus delicti need not be proved.
Discovery of the dead body is a rule of caution and not of law. In the event, there exists strong circumstantial evidence, a judgment of conviction can be recorded even in absence of the dead body.
72. In case titled Prithi v. State of Haryana, (2010) 8 SCC 536, it is observed that;
14. Since the question of factum of death of Ami Lal has been raised, we have to see what is the proof of death of Ami Lal. In other words, the question relates to the proof of "corpus delicti". The expression "corpus delicti" has been subject of judicial comments from time to time. The term "corpus delicti" generally means, when applied to any particular offence, the actual commission by someone of the particular offence charged (Words and Phrases, Vol. 9-A, 2nd Reprint, 1976, West Publishing Co.) In a murder case, "corpus delicti" consists of proof of the death of a person alleged to have been murdered and that such death has been caused by commission of crime by someone. It is sound principle in criminal jurisprudence that one does not begin to inquire whether the prisoner is guilty of a crime until one has established that a crime has been committed.
20. Sometimes, there may not be any distinction between proof of the fact of the crime and the proof of the actor of it. The evidence of the corpus delicti and the guilt of the person charged of an offence, many a time is so interconnected that on cannot be separated from the other. The same evidence often applies to both the fact of the crime and the individuality of the person who committed it. The question now is, whether the prosecution evidence establishes that Ami Lal was murdered and the commission of crime is made out against the appellant.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 73/93
73. Further, in case titled Prithipal Singh v. State of Punjab, (2012) 1 SCC 10, it is held that:
52. Therefore, in a murder case, it is not necessary that the dead body of the victim should be found and identified i.e. conviction for the offence of murder does not necessarily depend upon corpus delicti being found. The corpus delicti in a murder case has two components -- death as result, and criminal agency of another as the means. Where there is a direct proof of one, the other may be established by circumstantial evidence.
51. In Mani Kumar Thapa v. State of Sikkim [(2002) 7 SCC 157 :
2002 SCC (Cri) 1637 : AIR 2002 SC 2920] this Court held (SCC p. 163, para 4) that in a trial for murder, it is "neither an absolute necessity nor an essential ingredient to establish corpus delicti". The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without any trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case, the accused would manage to see that the dead body is destroyed to such an extent which would afford the accused complete immunity from being held guilty or from being punished. What is, therefore, required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body maynot be traced. (See also Ram Chandra v. State of U.P. [AIR 1957 SC 381 : 1957 Cri LJ 559], Ashok Laxman Sohoni v. State of Maharashtra [(1977) 2 SCC 103 : 1977 SCC (Cri) 243 : AIR 1977 SC 1319] and Rama Nand v. State of H.P [(1981) 1 SCC 511 : 1981 SCC (Cri) 197 : AIR 1981 SC 738] )
74. Further, in case titled Lakshmi v. State of U.P. (2002) 7 SCC 198, it is held that;
"16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 74/93 proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in the absence of identification of the body and cause of the death."
75. This extract is taken from Rishipal v. State of Uttarakhand, (2013) 12 SCC 551 as under :
14. In the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the prosecution is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder. Failure of the prosecution to assemble such evidence will, however, result in failure of the most essential requirement in a case involving a charge of murder. That is precisely the position in the case at hand. There is no evidence either direct or circumstantial about Abdul Mabood having met a homicidal death. The charge of murder levelled against the appellant, therefore, rests on a rather tenuous ground of the two having been last seen together to which aspect we shall presently advert when we examine whether the two being last seen together is proved as a circumstance and can support a charge of murder.
76. This extract is taken from Sanjay Rajak v. State of Bihar, (2019) 12 SCC 552 : (2019) 4 SCC (Cri) 451 : 2019 SCC OnLine SC 895 at page 555 as under :
9. It is not an invariable rule of criminal jurisprudence that the failure of the police to recover the corpus delicti will render the prosecution case doubtful entitling the accused to acquittal on benefit of doubt. It is only one of the relevant factors to be considered along with all other attendant facts and circumstances to arrive at a finding based on reasonability and probability based on normal human prudence and behaviour. In the facts and circumstances of the present case, the failure of the police to recover the dead body is not much of consequence in the absence of any explanation by the appellant both with regard to the victim last being seen with him coupled with the recovery from his house FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 75/93 of the belongings of the deceased. Rama Nand v. State of H.P. [Rama Nand v. State of H.P., (1981) 1 SCC 511 : 1981 SCC (Cri) 197], was a case of circumstantial evidence where the corpus delicti was not found. This Court upholding the conviction observed: (SCC pp. 522-23, para 28) "28. ... But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution.
Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. "homicidal death" is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3 of the Evidence Act, a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned."
77. In view of the abovesaid law, it stands proved that the recovery of dead body is not necessary to prove a murder by accused. In this case also, it is the allegation of the prosecution that deceased was murdered by the FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 76/93 accused persons under a criminal conspiracy and after committing robbery of his articles and car. PW1 has proved that accused Manoj made his confessional statement before him, in the presence of other accused, regarding this murder and accused Jitender @ Jeetu/ Seema threw mobile phone of the deceased there, which was recovered by police from PW1. PW1 has proved all such facts. Accused pointed out the spot of incident where the deceased was murdered by them and they also pointed out the spot of incident. However, they allegedly burnt the dead body of the deceased in a brick kiln owned by PW14 Amit Gupta with the help of accused Raju @ Bihari. PW14 Amit Gupta has proved that the police officials came to his brick kiln with accused and accused pointed out the spot where they dumped dead body in a running brick kiln. PW12, PW15, PW25 and PW35 have proved that accused persons pointed out the spot where they put dead body. Police searched the brick kiln at the instance of accused persons and found the body parts of the deceased i.e. jaw, teeth and ashes, which were seized vide seizure memos Ex. PW14/A, Ex. PW14/B, Ex. PW14/D, Ex. PW14/E, Ex. PW14/F and tasla used to cover the hole of brick kiln by Raju @ Bihari vide Ex. PW14/C. PW7A Premvir Singh has proved that he visited the spot of incident and photographed / video graphed this recovery at the instance of accused, whereas accused have not disputed this photography / videography and even during their SA, they stated it as a matter of record. PW14 witnessed this recovery and has denied the suggestion that police did not make any recovery of bones of the deceased. PW21/ SI Shyam Sunder has also corroborated this recovery made in the presence of PW14 by deposing that body parts were recovered and were also video graphed. However, this recovery of body parts could not be connected to the deceased by DNA report as DNA could not be extracted from bones, teeth and Ashes.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 77/93
78. Ld. Counsel for accused has argued that this recovery of body parts could not be connected to the deceased and even it could not be proved that those bones were of human or animal origin. It is further argued that even DNA report also could not prove the origin of the body parts allegedly recovered at the instance of accused persons. Admittedly, DNA report is just an opinion and law this effect is well clear by case titled Pattu Rajan v. State of T.N., (2019) 4 SCC 771 that;
51. Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts.
52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.
In view of abovesaid law, it stands proved that DNA report is just an opinion and such opinion is not conclusive. However, DNA report in this case is not concluded as DNA could not be extracted from bones being totally burnt and converted into ashes. In fact, dead body of the deceased was totally burnt and testimony of PW14 has proved that the temperature of brick kiln was about FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 78/93 1000 degree Celsius and in such temperature, it was not possible to find out any bone in such state to extract any DNA. In fact, non-extraction of dead body is not fatal to this case, especially when murder by the accused persons stands proved.
79. All accused persons have pointed out the spot of committing this murder vide abovesaid pointing out memos and also the place of pointing out of the spot where the dead body was dumped in brick kiln. These memos have proved that it was material evidence to prove the conduct of the accused persons in terms of section 8 of Evidence Act thereby pointing out of the spot where dead body was dumped. The recovery of bones/ jaws and teeth recovered at the instance of accused persons in pursuance of their disclosure statements as well as pointing out memos have proved that this recovery is well admissible u/s 27 of Evidence Act, as recovery / discovery of new fact is covered by this section. As such, all such facts have fortified this recovery of dead body. Besides it, the site plan of the spot of recovery of dead body and scaled site plan, which are not disputed, have corroborated this recovery.
80. Further, the disclosure statement of accused Raju @ Bihari which is Ex. PW20/C has proved that he was compelled by the accused persons to put the dead body of deceased into a running bricks kiln. He along-with co- accused brought out dead body from a blue colour car and put into brick kiln and covered its hole by a tasla and it burnt completely. He did not kill the deceased Keshav Gautam and just helped the other accused in disposing of his dead body. This disclosure statement of accused Raju @ Bihari is not his disclosure statement regarding the mode and manner of committing this murder but may be used to prove the last togetherness of all other accused FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 79/93 persons when they dumped the dead body in Bhatta. This disclosure statement may be seen to extract the information regarding the dead body and also for corroboration of the facts that accused persons dumped the dead body there. Raju @ Bihari was also arrested at the instance of accused persons which suggests that they were well known to each other and dispute of identity of accused is not there. The Hon'ble Apex court has covered a similar situation by its case titled Sevaka Perumal v. State of T.N., (1991) 3 SCC 471 where it was held that accused is liable for murder if dead body was burnt. In view of this judgment, cases where dead body is not found is not fatal to prove a murder case.
81. Further, the explanation tendered by accused persons during their statements u/s 313 is also relevant. It has been held by the Hon'ble Supreme Court of India in Jagroop Singh v. State of Punjab, V (2012) SLT 508 thereby relying upon State of Maharashatra v. Suresh (2000) 1 SCC 471 that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him under section 313 of the code of criminal procedure.
82. In view of these judgments, it is clear that the explanation of accused u/s 313 Cr.P.C. may not be deciding factor to convict him but reply may be considered to join a missing link of the circumstances. Accused persons have not tendered any explanation to incriminating circumstances and its absence FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 80/93 may provide an additional circumstance against all accused to prove their guilt and shall go against their innocence to presume that they have committed this offence.
83. Though same facts were also relevant but could not be proved on record, yet those are not fatal to this case. All the accused were seen together in a dhaba, but the owner of dhaba /PW26 Mukesh Kumar has turned hostile despite admitting that dhaba belonged to him and now has been let out. He has admitted that he knew accused Manoj and also has concerned with restaurant and in such circumstances, it was expected from him to turn hostile to assist accused, due to his testimony is not fatal to this case. Similarly, the testimony of number plate provider of the car was also material, but he could not be traced out and IO has tendered an explanation to it for his non- examination, due to it is also not fatal to this case. Similarly, PW27 Ram Babu has also not supported the prosecution. He was witness of arrest of accused Manoj, but has not supported. However, again he was husband of accused Seema due to he was also expected to depose in this manner, but accused of Manoj has been duly proved by other witness/ PW25. As such, facts likely to be proved by these witnesses have not adversely effected the case of the prosecution.
84. In view of the abovesaid discussion, I am of the considered opinion that prosecution has successfully proved that all the accused namely Kaushal, Seema, Jitender@ Jeetu, Manoj and Juvenile hatched a criminal conspiracy to eliminate deceased Keshav Gautam after hiring his cab and also committing of robbery of his car and other articles and they dumped burnt his dead body in brick kiln. The body parts of deceased were also recovered later FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 81/93 on at their instance and both offences u/s 120B and Section 302 r/w 120B IPC stand proved against them.
85. Next charge against accused persons is u/s 201/34 r/w 120B IPC. Sec- tion 201 deals with causing of disappearance of the evidence of an offence, or giving a false information to screen an offender. If anyone knowing or having reason to believe that an offence has been committed and causes to disappear the evidence of commission of that offence with intention of screening to the offender from legal punishment commits this offence. Even if someone intentionally gives any information respecting any offence which he knows or believes to be false to save an accused is also liable under this offence. To get convicted any accused under this offence, there must be an offence of causing disappearance of material evidence in order to screen offender from legal punishment. As such, it is to be seen as to whether prosecution has proved this offence against the accused persons or not.
86. In this case, it has already been proved that the accused persons committed murder of deceased Keshav Gautam under a criminal conspiracy and all the circumstances have proved it beyond doubt. Prosecution has also proved that all the accused persons except Raju @ Bihari committed this murder after robbery of the items and car of the deceased. PW12, PW15, PW25, PW35/ IO and other police officials have duly proved that the accused persons pointed out the spot of incident where they committed the murder of the deceased and also pointed out a brick kiln where they had burnt the dead body. In pursuance of their pointing out, body parts of the deceased were also recovered from the kiln. PW14 Amit Gupta has proved that accused Raju @ Bihari was working with him and was running his bhatta/kiln. Ld. Counsel FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 82/93 for accused Raju @ Bihari has submitted that there is no proof that accused was working at kiln as prosecution has not collected any evidence or document to prove it, due to it could not be proved that accused was working there. It is further argued that in the absence of any evidence against the accused Raju@ Bihari, he is entitled for acquittal. However, this submission has no substance.
87. PW1 has duly proved that the dead body of the deceased was dumped into a running kiln and PW14 has corroborated that the accused led the police team to his kiln and pointed out the spot where they had dumped the dead body with the help of accused Raju Bihari. He has further proved that this accused Raju @ Bihari was working on his bhatta and was arrested by the police and also disclosed to have burnt the dead body there. Police checked bhatta in his presence and body parts were recovered from there and were seized by the police vide seizure memo Ex. PW14/A to Ex. PW14/F. The conduct of accused Raju @ Bihari has also proved that he was privy of disposal of this dead body, but did not disclose this fact to anyone. Though he has admitted in his disclosure statement that accused Manoj put a pistol on his temple and compelled him to dispose off that dead body, yet he did not disclose this incident to anyone till police arrested him, which suggests that he was part of this crime. Even otherwise, it is no defence that he committed this offence under compulsion. Accused Manoj also pointed out the spot wherefrom body parts were recovered in burnt condition and police had also seized one tawa / tasla which was used to cover the hole of brick kiln. As such, all facts have proved that all the accused persons disposed off the dead body of deceased in order to save themselves from legal punishment.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 83/93
88. Further, the disclosure statements of accused persons have also corroborated this fact with other circumstances. As per section 30 of Evidence Act, these disclosure statements are admissible against them. Scaled site plan Ex.PW17/A prepared by the police during investigation and rough site plan by IO Ex. PW35/A have also corroborated the spot pointed out by the accused wherefrom dead body parts were recovered at the instance of accused persons. Photographer has also corroborated the testimonies of police officials as well as PW14 that body parts were recovered from brick kiln at the instance of accused persons in his presence. Accused Raju @ Bihari was also with other accused when they put the dead body in running brick kiln, due to this offence stands proved against him also. He also concealed this information from police to screen other accused and also himself from lawful punishment due to now he cannot take this plea. As such, this offence u/s 201/120B IPC stands proved against all accused.
89. Next charge against accused persons is under section 392/34 read with 120B IPC and 397 IPC also against accused Manoj. Prosecution has alleged that all the accused under a criminal conspiracy lured the deceased to Sikandarabad / Bulandsher and robbed him of his car, purse and watch. Perusal of section 390 would suggest that in order to prove robbery, prosecution has to establish -
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);
90. In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 84/93 any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint. If the ends do not fall within (a) to
(c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery. That (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them and (d), (e) would amount to robbery.
91. Admittedly, in order of committing of theft, or in committing of theft, or in carrying away or attempting to carry away the property obtained by theft, the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint that amounts to robbery. In this case, the circumstances proved by the prosecution have proved that the accused persons firstly robbed the deceased on the point of weapon and thereafter, they committed his murder by strangulation and burnt his dead body in brick kiln. No doubt, normally the presumption of section 114 (a) of Evidence Act is not extended to presume the offence of robbery just by recovery of a stolen property, but it has presumption that a man who is in possession of stolen goods soon after the theft is either the thief or has received the stolen goods knowing them to be stolen, unless he can account for his possession. In this case also, the accused Manoj was found in possession of stolen watch which was recovered at his instance in pursuance of disclosure statement, which is admissible u/s 27 of Evidence Act. Accused also committed murder of the deceased after robbing him and this fact has been proved by the circumstances against them. Even the use of weapon is also proved by the FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 85/93 recovery of pistol at the instance of accused Manoj which has substantiate the allegations that the deceased was threatened by the accused and was robbed prior to his death. The connection of mobile phone of the deceased to accused Seema and Jitender @ Jeete has already been proved by PW1. As such, all such facts and circumstances have proved that all the accused committed this offence of robbery.
92. Even otherwise, offence u/s 392 of IPC is interconnected to the main offence of criminal conspiracy to commit murder of deceased, under which, deceased was lured to Sikandarabad / Bulandsher by accused Kaushal and was murdered and after robbery. PW1 has duly proved that accused Manoj, Jitender@ Jeetu and Seema came to him with stolen car, mobile and purse of deceased and confessed to commit that offence before him, which suggests that they committed the murder of the deceased after robbing him.
93. A similar situation has arisen before the Hon'ble Apex Court in case titled Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 as under;
13. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of PW 3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by PW26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ex. P-35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 86/93 having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under Illustration (a) to Section 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.
In view of this law, it stands proved that the accused committed the murder of deceased and also committed the robbery of his articles on the strength of pistol / katta and this offence u/s 392/34 r/w 120B IPC stands proved by recovery against all accused persons and all are liable for this offence.
94. So far as offence under section 397 IPC is concerned, section 397 IPC prescribes enhancement of sentence in the cases where any dangerous weapon has been used during the robbery or any grievous injury is caused to victim during incident. This section enhanced sentence and not below to 7 years for such cases. In this case, prosecution has duly proved that this robbery was committed by accused persons and accused Manoj used this pistol during robbery. The recovery of pistol has proved use of this weapon during robbery by the circumstances due to accused Manoj is also liable u/s 397 IPC.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 87/93
95. Next charge against accused Manoj is under section 25/ 27 of Arms Act: Section 25 of Arms Act has been invoked against accused Manoj for the recovery of a pistol used during the incident and was recovered at his instance. Section 25 of Arms Act is to be invoked for illegal possession of a weapon / fire arms for the want of a valid license in terms of section 5/7 of Arms Act. However, this offence is subjected to a sanction u/s 39 of Arms to be accorded by the DM/ DCP concerned for prosecution, but in this case, no sanction u/s 39 of Arms Act has been proved on record for the prosecution of the accused u/s 25 of Arms Act, due to this offence u/s 25 of Arms Act could not be proved against accused Manoj and he is entitled for acquittal u/s 25 of Arms Act.
96. Next charge is under Section 27 of Arms Act, which is again connected to section 5/7 of Arms Act. Both the sections have to be read together to reach a conclusion as to whether accused has committed this offence or not. Before reaching to section 27, sections 5 and 7 have to be seen as under:
Section-5- Licence for manufacture, sale, etc., of arms and ammunition.--
[1] No person shall--
(a) [use, manufacture], sell, transfer, convert, repair, test or prove, or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearms or any other arms of such class or description as may be prescribed or any ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.
(2)] Notwithstanding anything contained in sub-section (1), a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 88/93 his own private use to another person who is entitled by virtue of this Act, or any other law for the time being in force to have, or is not prohibited by this Act or such other law from having in his possession such arms or ammunition: Provided that no firearm or ammunition in respect of which a licence is required under section 3 and no arms in respect of which a licence is required under section 4 shall be sold or transferred by any person unless
--
(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firearms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and
(b) a period of not less than forty-five days has expired after the giving of such information.]
7. Prohibition of acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition.--No person shall--
(a) acquire, have in his possession or carry; or
(b)[use, manufacture], sell, transfer, convert, repair, test or prove; or
(c)expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition unless he has been specially authorised by the Central Government in this behalf.
27. Punishment for using arms, etc.--
(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2)Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3)Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death.] FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 89/93 In view of the abovesaid sections, it stands proved that to convict an accused u/s 27 of Arms Act, the criteria of sections 5 and 7 of Arms Act has to be satisfied. In fact, violation of section 5/7 of Arms Act is punishable u/s 27 and ingredients of both sections must be satisfied.
97. This section 27 of Arms Act came into interpretation before the Hon'ble Supreme Court in case titled Deomuni Sharma v. State of Jharkhand, (2009) 16 SCC 80 and it is held as under:
25. There is no discussion regarding Section 27 of the Arms Act either in the judgment of the trial court or the High Court. No evidence is discussed as to how the user of the firearm can come within the mischief of Section 5 of the Arms Act. No such material was produced before us nor were we addressed on the issue by the learned counsel for the prosecution. Under such circumstances, we are not in a position to endorse the breach of Section 5 of the Arms Act. Again, it is not the case of the prosecution that this appellant did not have the licence for the rifle that he is alleged to have used by firing in the air.
26. For inviting conviction under Section 27 of the Arms Act, it has to be proved that the firearm has been used in contravention of Section 5 or Section 7 of the Arms Act. Since it was a licensed gun, there was no question of Section 7 coming in. Insofar as Section 5 is concerned, we do not think that an act on the part of the accused in firing in the air to scare the aggressors would come within the mischief of Section 5(1) of the Arms Act.
Therefore, the appellant is liable to be acquitted even of the offence under Section 27 of the Arms Act.
98. In view of the above said case law, it stands proved that the use of any illegal weapon without licensee amounts to a contravention of section 5/7 of Arms Act, which is punishable u/s 27 of Arms Act. Admittedly, in this case, weapon of offence was recovered at the instance of accused Manoj and was found in working order in view of FSL report Ex.PW35/C and was also arms and ammunition under the definition of Arms Act, whereas accused has failed FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 90/93 to prove any license for the use of this weapon and it amounts to a violation of section 5/7 of Arms Act to prove the guilt of accused. Accused Manoj used this weapon as already proved on record and this offence u/s 27 of Arms Act is made out against him and he is liable to be convicted for this offence.
99. Next charge against the accused persons is u/s 482/34 r/w 120B IPC. Section 482 IPC deals with the punishment for using a false property mark as genuine. Admittedly, conditions laid down by section 481 IPC are to be satisfied to make a person liable u/s 482 IPC. As such, it has to be proved that property mark of movable property/ or goods/ or any case, package or other receptacle containing movable property or goods and also use of any true registered mark despite knowing to be fake is punishable under this section. In fact, there must be a proof that the accused was using a fake registration number / mark to be genuine. Prosecution has alleged that the accused persons used a fake number plate on the robbed car of deceased despite knowing to be genuine. This car was robbed by the accused persons and has been proved by the prosecution, but prosecution has not led any evidence to prove that accused persons used any fake number plate on the car. No doubt, car was recovered with fake number plate, but it was recovered as abandoned and accused Manoj left it there, but there is no supporting evidence to this effect. Accused Manoj or any other was not seen by anyone while fixing a fake number plate on car or driving this car with such fake number plate and there is no evidence to this effect.
100. In fact, none of the witness has proved that the accused persons put this fake number plate in violation of registered mark of the Transport Department of Delhi. Though IO has tendered an explanation that he tried to FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 91/93 search the person who provided this fake number plate to the accused, yet he could not be apprehended. In the absence of any such evidence that the accused changed this umber plate or caught with this fake number plate, this offence could not be proved against any accused. As such, they are not entitled for this offence.
101. Keeping in view of the facts and circumstance of this case, I am of the considered opinion that the prosecution has successfully proved that all the accused have committed this crime. However, accused have been charged u/s 34 IPC and also u/s 120B IPC simultaneously, but Section 120B has wider scope and covers all offences committed under a criminal conspiracy as also laid down by case titled Gopi Nath v. State of UP, (2001) 6 SCC 620. As such, all the accused persons are hereby convicted as under :
(i). Accused Jitender @ Jeetu is convicted u/s 120B IPC, Section 302 r/w Section 120B IPC, Section 392 r/w Section 120B and Section 201 r/w Section 120B IPC. However, he is acquitted u/s 482 r/w Section 120B IPC.
(ii). Accused Manoj Kumar is convicted u/s 120B IPC, Section 302 r/w Section 120B IPC, Section 392 r/w Section 120B, Section 201 r/w Section 120B IPC, Section 397 and Section 27 of Arms Act. However, he is acquitted u/s 25 of Arms Act and Section 482 r/w Section 120B IPC.
(iii). Accused Kaushal is convicted u/s 120B IPC, Section 302 r/w Section 120B IPC, Section 392 r/w Section 120B IPC and Section 201 r/w Section 120B. However, accused is acquitted u/s 482 r/w Section 120B IPC.
(iv). Accused Seema is convicted u/s 120B IPC, Section 302 r/w Section 120B IPC, Section 392 r/w Section 120B IPC and Section 201 r/w Section FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 92/93 120B IPC. However, accused is acquitted u/s 482 r/w Section 120B IPC.
(v). Accused Raju @ Bihari was charged with offence u/s 201/34 IPC r/w Section 120B IPC only. He is convicted u/s 201 r/w Section 120B IPC.
102. All the accused are taken into custody and sent to JC. Their Bail Bonds cancelled. Sureties discharged. Originals, if any be returned.
Endorsements, if any cancelled. Digitally signed
by DEVENDRA
DEVENDRA KUMAR
KUMAR Date: 2022.08.18
16:57:01 +0530
Announced in open court (Devender Kumar)
today on 18.08.2022 Additional Sessions Judge-02 (NE)
Karkardooma Courts, Delhi.
FIR No. 330/2011 State Vs. Jitender @ Jeetu etc. 93/93