Himachal Pradesh High Court
Randhir Singh @ Tira And Ors. And Mohan ... vs State Of H.P. on 20 June, 2007
Equivalent citations: 2007(2)SHIMLC294
Author: Surjit Singh
Bench: Surjit Singh, Sanjay Karol
JUDGMENT Surjit Singh, J.
1. Both the appeals, whose particulars are mentioned in the title, are directed against the same judgment, i.e. judgment dated 27.9.2003, of the Sessions Court, whereby the appellants have been convicted of offences punishable under Sections 364, 302 and 392 of the Indian Penal Code and sentenced to undergo imprisonment for different terms and also to pay fine; in default of payment of fine to undergo simple imprisonment for extra terms.
2. Prosecution version, as made out from the evidence adduced by it before the trial Court, may be summed up thus. Deceased Jai Pal, aged about 20 years, was employed as a driver by Jatinder Singh (PW-5), along-with PW-3 Bhim Singh, PW-4 Rajesh Kumar and one more person, to drive his fleet of Maruti Cars and vans for hire. Jatinder Singh had purchased one car from PW-7 Dinesh Kumar of Ludhiana. He had taken the delivery of that car but it had yet not been registered in his name. So the car bore no registration number on the number plates and instead letters "A/F" (implying that number had been applied for) were written. This car with letters "A/F" written on the number plates had been entrusted to deceased Jai Pal, one of the drivers engaged by Jatinder Singh (PW-5). On 27.4.2002 around 8.00 p.m., when Jai Pal was present at the bus stand of Rajgarh alongwith the aforesaid car and Rajesh Kumar (PW-4), another driver engaged by PW-5 Jatinder Singh, was also present there with his own car, four persons alighted from a bus that came from Solan side. One of them was appellant Mohan Kumar. Appellant Mohan Kumar went to Jai Pal and approached him to carry him and his companions to village Churvadhar. The companions of appellant Mohan Kumar were the three appellants, named Tira, Rajesh Kumar and Tara. Village Churvadhar is at a distance of about five kilometers from Rajgarh. The deceased then drove the appellants in the aforesaid car from bus stand Rajgarh towards village Churvadhar. On the way at village Samoga the car was spotted by PW-3 Bhim Singh, another driver engaged by PW-5 Jatinder Singh. He (PW-3 Bhim Singh) was then returning from his village Kanda by the car entrusted to him by Jatinder Singh (PW-5). The time was around 9.00 p.m. when Bhim Singh (PW-3) spotted the car by which deceased Jai Pal carried the appellants. Though village Churvadhar is only five kilometers away from bus stand Rajgarh, Jai Pal did not return with the car that night.
3. Jatinder Singh (PW-5), owner of the car, was not at Rajgarh on 27.4.2002 as he had gone to his in-laws' place. He returned on 28.4.2002. He was informed by Rajesh Kumar (PW-4) that Jai Pal had carried four persons (the appellants) to village Churvadhar on the previous evening by the car registration of which had been applied for, but had not returned. PW-5 Jatinder Singh then started searching for Jai Pal and his car. When he got no clue, he lodged report with the police on May 3, 2002, which was entered in the daily diary. Copy of the said report is Ext. PW-27/ A. In the meanwhile brothers of Jai Pal were also informed about the disappearance of Jai Pal alongwith the car. One of his brothers named Som Dutt (PW-1) then lodged an FIR on 4.5.2002 raising a finger of suspicion not only against appellant Mohan Kumar and his unnamed companions, but also PW-5 Jatinder Singh.
4. Police then started looking for appellant-Mohan Singh and his companions. On 8.5.2002 appellant Mohan Singh was arrested by Parwanoo police, when he was moving about in suspicious circumstances. Rajgarh Police, with whom the FIR had been lodged, was informed of his arrest. PW-27 Lachhman Dass, S.I., who was then posted as S.H.O. Police Station Rajgarh, went to Parwanoo. He took Mohan Singh, appellant into custody and carried him to Rajgarh. On 9.5.2002 while in police custody, appellant Mohan Singh made a disclosure statement leading to the discovery of a decomposed dead-body of a male. This body was headless. Head was found lying about 36 feet away from the site where the headless body lay. The dead-body was identified by Ram Swaroop (PW-8) one of the brothers of the deceased. From near the dead-body a pair of shoes, buckle of safety belt and bicycle chain in two pieces were also recovered. Photographs of the dead-body and the aforesaid articles as also the spot were taken. Some blood was also noticed by the side of the road above the site where the dead-body was found lying. That was scrapped and taken into possession and sealed in a polythene bag. Post-mortem of the dead-body was conducted initially by PW-22 Dr. Sukhwinder Singh, whose observations are reproduced below:
Body of a thinly built nourished young aged man wearing dark coloured pant and dark coloured shirt with light coloured underwear. Foul smelling body with flies around it. Head was disarticulated at atlento occipital joint was lying separately 12 m away from the body. The trunk of body is missing along with chest region. Body consists of both lower limbs, pelvis, post parts of abdomen. Vertebral column upper limbs abdomen contents are missing. Chest contents are also missing. Right upper limb is disarticulated from the truck. Left upper limb is still articulated with the body. Putrefactive blisters are present on medial of both the thighs. Marbling of lower limb veins is seen. Purtefaction has set in lower limbs are swollen and are putticious. External genitalia are normal. Appear aedematous putrefactive gases. Abrasion wounds 4-6 in number present on both lower limbs. Both the arms are tied together with the car seat belt. Right arm along with scapula disarticulated from main body. Left arm is still articulated with body partially. Spilitonised. Chest contents and abdomen contents appear to be eaten up wild animals. Couples of ribs are seen along with vertibral column. Head and skull was lying separately 12m away from the body itself. Separated at atlonto occipital joint. Eye sockets are empty. Teeth are loose. Skin is shrivelled up. No apparent body injuries seen partially skeletonised.
5. The dead-body was brought to I.G.M.C., Shimla for expert opinion where PW-21 Dr. H.S. Sikhu, Assistant Professor, Department of Forensic Medicines, conducted second post-mortem and recorded the following observation:
(Dead-body of a male (presence of penis, scrotum) with skull lying separately with mandible with black long scalp heirs which are easily pulled, skin of face parchmentised blackened and mummified with both eye balls absent. On left side upper canine is overriding. 1st Cervical vertebra absent. There is partial dislocation due to putrifaction at the level of D-5 and D-6. Skull and mandible are male (anatomatically) and are anatomically fitting with the rest of the body and hence skull also belong to the same human being. 1st and 2nd rib present on right side attached with sternum. Upper limb (right) is separate with skin of both hands mummified. Left upper limb partially gnawed away. Both the hands tied together with the safety belt of the car (Two belts black 47" & 64") Skin and soft tissues of neck are missing. Skin of abdomen and pelvis present, parchmentised. Both the lower limbs with pelvis present. There is greenish discolouration of skin with multiple putrifying blisters with denuded skin at places. Both the feet are parchmentised. Soft tissues of neck, thorax and abdomen missing.
6. On 11.5.2002 appellant Tira alias Randhir Singh was arrested. On 13.5.2002 appellant Tara Dutt alias Tara was taken into custody by the police. He made a disclosure statement leading to the discovery of a 'Khukhri' from a Nallah. He also got recovered a partly burnt purse, a handkerchief and a match box. Appellant Rajesh Kumar was arrested on 13.5.2002. He made a disclosure statement that he had thrown a plastic bag containing cassettes and a stereo down a precipice. Pursuant to that statement, cassettes and stereo were recovered. Clothes of the deceased were also taken into possession.
7. In the meanwhile, on 28.4.2002 one car, on the number plate of which letters "A/F" were written, was found abandoned by PW-19 Tapender Singh outside his house, early in the morning. He informed the police post Sangrah telephonically. PW-12 ASI Chaman Lal Bhatia of Police Post Sangrah went to the spot and took into possession the aforesaid car under Section 102 of the Code of Criminal Procedure. Seizure memo was prepared and the engine number and chessis number of the car were entered in that memo. The car had run out of fuel. It was taken to police post Sangrah and parked there. S.H.O. Rajgarh then took into possession that car. He found some stains of blood on the foot mats of the car. He made those foot mats into a parcel. On 31.5.2002 PW-5 Jatinder Singh produced the papers of the car, in question, to the police which were taken into possession vide memo. Ext. PW-l/B.
8. 'Khukhri', foot mats, pant of appellant Rajesh Kumar, clothes of the deceased, T-shirt and pant of appellant Tara Dutt were sent to the chemical examiner, who opined that the 'khukhri', the foot mat, pant of appellant Rajesh Kumar and the clothes of the deceased had stains of human blood, but no definite opinion could be expressed as to the group(s) of the blood noticed on the aforesaid articles.
9. Trial Court has held that the evidence led by the prosecution proved the following circumstances and these circumstances made a complete chain which lead to one and only one hypothesis that deceased Jail Pal was murdered by the appellants and to no other hypothesis:
(a) All the four appellants alighted from the bus at Rajgarh at 8.00 p.m. on 27.4.2002, per testimony of PW-4 Rajesh Kumar;
(b) Mohan Kumar, appellant made a disclosure statement leading to the discovery of dead-body head of which was chopped off and the hands whereof were tied with the safety belt of the vehicle and from near that spot a pair of shoes, two pieces of cycle chain, a buckle of safety belt etc. were recovered and blood was also found by the side of the road above the site where the dead-body lay. The dead-body was identified to be that of Jai Pal by PW-8 Ram Swaroop, a brother of the deceased;
(c) Appellant Tara Dutt made a disclosure statement leading to the discovery of a 'Khukhri' and a partly burnt purse and a handkerchief;
(d) Rajesh Kumar, appellant made a disclosure statement leading to the discovery of a plastic bag Ext. P-6 containing car stereo Ext. P-9 and cassettes Exts. P-10 to P-13, a hook Ext. P-14 and pieces of cycle chain Ext. P-15, which have been identified by PW-5 Jatinder Singh to be the same which were fitted in the car;
(e) Maruti car with letters "A/F" written on the number plate, by which Jai Pal carried the appellants from Rajgarh bus stand towards village Churavadhar was found abandoned on the very next morning in village Andheri in Sangrah Tehsil by PW-19 Tapender Singh and it was taken into possession by the police of Sangrah under Section 102 of the Code of Criminal Procedure on 28.4.2002 and a foot mat of this car was found to bear stains of human blood;
(f) 'Khukhri' Ext. P-15 got recovered by appellant Rajesh Kumar and T-shirt Ext. P-21 and pant Ext. P-22 belonging to appellant Tara Dutt were also found to contain human blood, per report Ext. P-27/J of the chemical examiner.
10. Learned Counsel representing the appellants submitted that the evidence adduced by the prosecution had inherent flaws, which indicated that the entire prosecution story was cooked up. It was alleged that in the FIR Ext. PW-l/A lodged by PW-1 Som Dutt, one of the brothers of deceased Jai Pal, suspicion was expressed against Jatinder Singh (PW-5) also, but not only that the police did not look into this aspect of the matter it conducted the investigation as per wishes of PW-5 Jatinder Singh, because it is only his employees who were associated as witnesses during the course of the investigation. It was submitted that as a matter of fact, the car which was found abandoned in village Andheri outside the house of PW-19 Tapender Singh, did not belong to PW-5 Jatinder Singh as its chessis number and engine number are different from the chassis number and the engine number of the car the documents of which were produced by PW-5 Jatinder Singh to the police on 31.5.2002 and that this fact shows that the very genesis of the prosecution story is untrue. Elaborating the submission, the learned Counsel urged that the possibility of even the dead-body being not that of Jai Pal, cannot be ruled out. Also it was urged in the context of this very submission that the likelihood of PW-5 Jatinder Singh himself being involved in the killing of Jai Pal, was very much there, especially when even though he claims the car taken into possession by the Incharge of Sangrah police post to belong to him, the documents produced by him do not pertain to this car and he has not even applied for the release of the car in his favour till date.
11. We have considered the submissions made on behalf of the appellants in the light of the evidence on record, which we have gone through thoroughly.
12. Jatinder Singh (PW-5), with whom Jai Pal, the alleged deceased, was employed, stated that he had taken the possession of the car, in question, six - eight days before the day on which it was hired by appellant Mohan Kumar and his companions and that he had been handed over a sale letter by Ganesh Dutt (PW-18). This letter has not been produced. The registered owner of the car, as per testimony of PW-5, was one Jagir Singh. PW-18 Ganesh Dutt, through whom the car was purchased by Jatinder Singh (PW-5) has stated that he got the car belonging to one Balraj Gupta sold for a consideration of Rs. 1,70,000/- to Jatinder Singh (PW-5) in July, 2002. The incident had taken place in April, 2002. The car was got sold by Ganesh Dutt to Jatinder Singh (PW-5) in July, 2002. As already noticed, the sale letter has not been produced. All this shows that PW-5 Jatinder Singh has not come out with whole truth. Not only this, he has with-held the material evidence, i.e. the letter of sale of the car by which Jai Pal allegedly carried the appellants to village Churvadhar on 27.4.2002.
13. Again, according to PW-18, the seller of the car was one Balraj Gupta, but the RC of the car Ext. PA shows that the owner of the car was one Jagir Singh. This RC was produced by Jatinder Singh (PW-5) to the police on 31.5.2002, vide memo. Ext. PW-l/B alongwith insurance cover note Ext. PB and pollution control certificate Ext. PC. While appearing as PW-5 Jatinder Singh stated that he had produced the registration certificate Ext. PA and the aforesaid two other documents Exts. PB and PC in respect of the car, the registration for which had been applied for vide memo. Ext. PW-l/B and that the stereo and four cassettes Exts. P-9 and P-10 to P-13, respectively, had been got fitted by him in that car. Prosecution version is that it is this car (the RC of which is Ext. PA) which was found abandoned in village Andheri and was seized under Section 102 of the Code of Criminal Procedure by ASI Chaman Lal (PW-12) on 28.4.2002. This version is not correct. PW-12 ASI Chaman Lal stated that he took the car into possession vide memo. Ext. PW-12/A and also entered a report to this effect in the daily diary, copy Ext. PW-12/B. In Ext. PW-12/A, the seizure memo, the chassis number of the car is written as 'SB 308-IN-2858914' and engine number as 'F8 BIN 8479127'. In the 'Rojnamcha' entry, copy Ext. PW-12/B, also these very numbers are written as the chassis number and the engine number of the car, in question. PW-5 Jatinder Singh says that he produced the RC Ext. PA of this car to the police on 31.5.2002. In the RC the chassis number and the engine number are different. The same are '30-B-515372' and '2113969' respectively. When this fact was pointed out to us during the course of hearing of the appeals, we sent for the car itself, which is still lying in the 'Malkhana' of police station Rajgarh, as nobody has asked for its release, to satisfy ourselves whether PW-12 ASI Chaman Lal Bhatia rightly noted down the chassis number and engine. number of the car in seizure memo Ext. PW-12/A and the 'Rojnamcha' entry Ext. PW-12/B. We found that the chassis number and the engine number of the car are the same as mentioned in Ext. PW-12/A and Ext. PW-12/B. We recorded this fact in our zimini order dated 21.5.2007.
14. From the above stated position, it is more than clear that Jatinder Singh (PW-5) has made a false statement that he had purchased a car through PW-18 Ganesh Dutt about a week prior to 27.4.2002 and on the number plate of that car letters "A/F" were written and that car had been entrusted to Jai Pal, the alleged deceased, for carrying passengers on hire basis. Why has Jatinder Singh (PW-5) made a false statement to this effect, is anybody's guess. It is also clear from the above stated position that in fact Jatinder Singh (PW-5) had purchased one car, on the number plate of which letters "A/F" were written, through Ganesh Dutt (PW-18) in July, 2002 against a letter of sale. That letter of sale has been with-held. In the absence of such letter it cannot be said as to what were the chassis number and engine number of that car. There is no other evidence as to the chassis number and the engine number of the car which PW-19 Ganesh Dutt testifies to have sold to Jatinder Singh (PW-5) in July, 2002. Even if it be assumed that chassis number and engine number mentioned in the withheld letter are the same as engraved on the chassis and the engine of the seized car, that too would not come to the rescue of the prosecution, because as noticed above, PW-18 Ganesh Dutt has testified that the car was sold in July, 2002. The incident is alleged to have taken place in April, 2002.
15. Another fact which is borne out from the above stated position is that the car, which was found abandoned in village Andheri and taken into possession by PW-12 Chaman Lal, ASI, Incharge of Police Post Sangrah, was different from the car by which Jai Pal allegedly drove the appellants on the night of 27th April, 2002 towards village Churvadhar, because according to PW-5 Jatinder Singh, RC of that car is Ext. PA and the chassis number and the engine number of the car registered vide this RC Ext. PA are different from the car that was found abandoned and seized by PW-12 Chaman Lal, as demonstrated hereinabove.
16. Even this much is doubtful if the car that was found abandoned in village Andheri and seized vide seizure memo Ext. PW-12/A belongs to PW-5 Jatinder Singh, because he has not produced any papers, i.e. registration certificate or sale certificate, pertaining to this vehicle. If it is so, it cannot be said that Jai Pal, the alleged deceased, carried the appellants towards Churvadhar village on the night of 27.4.2002 by this car. As a matter of fact, these facts, which stand established beyond doubt from prosecution's own evidence, make it quite doubtful if Jai Pal had been entrusted any car by PW-5 Jatinder Singh for carrying passengers on hire basis and the four appellants had hired any car from Jai Pal. Thus the very genesis of the prosecution case appears to be untrue.
17. In the report Ext. PW-l/A, PW-1 Som Dutt, a brother of Jai Pal, had got recorded that he had the suspicion that appellant Mohan Kumar and his two companions, who had hired the car, as per information conveyed to him, had abducted and killed his brother, who was about twenty years of age and whose height was five feet approximately. He further got recorded in this report that Jatinder with whom Jai Pal was employed, be also subjected to sustained interrogation, meaning thereby that he suspected involvement of Jatinder, the employer of Jai Pal also in the abduction and killing of his brother. It appears from the evidence on record that the police, however, paid no heed to the report of Som Dutt (PW-1) that he suspected the involvement of Jatinder Singh (PW-5) also. Instead the prosecution believed the version of PW-5 Jatinder Singh that the deceased had carried appellant Mohan Kumar and his companions in his car the registration of which had been applied for and that he had not returned with the car. This version of Jatinder Singh (PW-5), as demonstrated hereinabove, is not true. The falsity of this version of Jatinder Singh (PW-5) indicates that the suspicion expressed by Som Dutt (PW-1) about the involvement of Jatinder Singh was not unfounded.
18. It was in the light of these facts and the position that the evidence of the prosecution with respect to various circumstances, noticed by the trial Court in its judgment, was required to be appreciated. But the trial Court not only did not do so, it even did not take notice of these facts and the position. It appears that even the defence Counsel representing the appellants did not notice and point out the same to the trial Court. Had these facts and the position been brought to the notice of the trial Court, probably it would not have returned the finding that the circumstantial evidence adduced by the prosecution leads to no hypothesis other than that of the guilt of the appellants. In our considered view, these facts and the position clearly indicate that the prosecution version is not only highly doubtful but possibility is also there that the recovered dead-body might not be that of Jai Pal and that some other unknown person traveling by the abandoned car, which was seized on 28.4.2002 in village Andheri, had been murdered by some unknown persons.
19. Now we proceed to examine whether the circumstances, which have weighed with the trial Court in convicting the appellants, stand proved beyond reasonable doubt and if so to what effect.
20. With regard to circumstance (a), viz. the four appellants alighted from the bus at Rajgarh at 8.00 p.m. on 27.4.2002, the prosecution has examined only one witness, namely PW-4 Rajesh Kumar. The witness is an employee of PW-5 Jatinder Singh. The latter himself is named as a suspect in the FIR as noticed hereinabove. Therefore, PW-4 Rajesh Kumar, being under the influence of PW-5 Jatinder Singh, cannot be said to be an independent witness. Further more, what the witness has stated is that on April 27, 2002 around 8.00 p.m. appellant Mohan Kumar and his friends Tira, Rajesh Kumar and Tara alighted from a bus that came from Solan side and Mohan Kumar, appellant approached Jai Pal, the alleged deceased, to engage the car registration of which had been applied for, for going to village Churvadhar and thereafter all the four appellants boarded the car, which Jai Pal drove towards the aforesaid village. In the cross-examination the witness admitted that to the police he had disclosed the name of only one appellant viz. Mohan Kumar. He also stated that he had not seen the remaining three appellants prior to that day.
21. As already noticed, the car with letters 'A/F written on the number plate had been purchased by Jatinder Singh (PW-5) through Ganesh Dutt (PW-18) in July, 2002. If it is so, how could there have been such a car available with Jai Pal on April 27, 2002 when he allegedly drove the four appellants in the said car towards village Churvadhar. Again, PW-5 Jatinder Singh claims the abandoned car, seized by Sangrah police on 28.4.2002 at village Andheri, belonging to him and to be the same by which Jai Pal drove the appellants. But as demonstrated hereinabove, not only that there is no evidence suggesting that the car belongs to Jatinder Singh (PW-5), rather there is positive evidence that it does not belong to him, because according to his own testimony, the registration certificate of the car is Ext. PA, but the engine number and chassis number mentioned in this registration certificate are different from the chassis number and engine number embossed on the chassis and the engine of the car. Statement of PW-4 Rajesh Kumar is thus inherently incorrect.
22. Two witnesses have been examined by the prosecution to prove circumstance (b) regarding making of disclosure statement by appellant Mohan Kumar leading to the discovery of dead-body. PW-27 Lachhman Dass, the then SHO Rajgarh testified that he took appellant Mohan Kumar into custody at Parwanoo on May 8, 2002 and brought him to Police Station Rajgarh and interrogated him for the whole of the night and around 5 or 6 in the morning he (Mohan Kumar) disclosed that the dead-body had been thrown down a precipice in the area of village Thanoga by him and the other appellants. He stated that thereafter he called two independent witnesses, namely PW-7 Dinash Kumar and one Kulbhushan Sood and that in their presence appellant Mohan Kumar again made the disclosure statement regarding disposal of the dead-body of Jai Pal. PW-7 Dinesh Kumar has stated that he joined investigation of the case on 9.5.2002 and appellant Mohan Kumar, while in police custody, made a disclosure statement that he could lead the police to the spot from where he and his associates had thrown the chain of bicycle and the dead-body of Jai Pal and that memo of that statement had been prepared, which is Ext- PW-7/A.
23. For two reasons the testimony of this witness is not relevant; firstly as per testimony of PW-27 Lachhman Dass, S.I., appellant Mohan Kumar had made the disclosure statement about the throwing of the dead-body, before this witness was associated in the investigation. If it is so, the making of the disclosure statement by the appellant before this witness was nothing but an enactment of a drama. Secondly, the witness does not say as to what statement was exactly made by appellant Mohan Kumar. According to him Mohan Kumar made the statement that he could lead the police to the place from where the dead-body and a cycle chain had been thrown. However, as per contents of Ext. PW-7/A the memorandum of statement, appellant Mohan Kumar stated that the dead-body had been thrown into the bushes down a precipice near Thanoga Nallah along-with a chain of bicycle, which was used to strangulate and a 'Khukhri' which was used to stab him (the deceased) in the neck and that he could lead the police to the site and get recovered the dead-body. Non-testification of these facts by PW-7 Dinesh Kumar suggests that probably no disclosure statement was made in his presence by Mohan Kumar, appellant.
24. Two witnesses were associated by the Investigating Officer PW-27 Lachhman Dass, S.I. at the time of the recovery of the dead-body pursuant to the alleged disclosure statement made by Mohan Kumar, appellant. These witnesses were PW-5 Jatinder Singh, employer of Jai Pal, who per FIR lodged by PW-1 Som Dutt, brother of Jai Pal, was himself a suspect, and Prem Pal, Ex-Pardhan of the Panchayat. The prosecution chose not to examine Prem Pal. Jatinder Singh (PW-5), no doubt, testified that appellant Mohan Kumar led the police to a point below the precipice where a headless dead-body was found, but his statement cannot be taken to be a gospel truth, because he himself was a suspect, in the eyes of the brother of Jai Pal, the alleged deceased.
25. The length of the dead-body, as per post-mortem report Ext. PW-4/A, was 5' - 5" whereas according to the FIR Ext. PW-1/A lodged by PW-1 Som Dutt., height of Jai Pal was around five feet. Therefore, it cannot be said with certainty that the dead-body was that of Jai Pal. This fact also renders the evidence regarding the recovery of the dead-body at the instance of appellant Mohan Kumar doubtful.
26. Further in the post-mortem report Ext. PW-21/A, proved by PW-21 Dr. H.S. Sikhu, it is mentioned that the dead-body was found on 8.5.2002 near Thanoga Nallah, as per statement given by Mohan Kumar, appellant. This mention in the post-mortem report also renders doubtful the evidence of PW-27 SI Lachhman Dass, PW-7 Dinesh Kumar and PW-5 Jatinder Singh about the making of the disclosure statement by appellant Mohan Kumar on 9.5.2002 and the recovery of the dead-body on that date pursuant to the alleged disclosure statement.
27. The above stated position apart, the fact that the car which was found abandoned in village Andheri and in which the murder of Jai Pal had allegedly been committed, is not proved to belong to PW-5 Jatinder Singh, and therefore, it cannot be said that Jai Pal had driven the appellants in this car from bus stand Rajgarh towards village Churvadhar, leads to a legitimate presumption that the dead-body may not be that of Jai Pal and this presumption creates a reasonable doubt about the genuineness of the prosecution version regarding making of disclosure statement by Mohan Kumar, appellant leading to the discovery of the dead-body.
28. Coming to circumstance (c), the doctors who conducted the post-mortem examinations, namely PW-21 Dr. H.S. Sikhu and PW-22 Dr. Sukhwinder Singh, have nowhere stated that any injury had been caused by means of 'Khukhri'. In fact both of them have stated that no evidence of cutting or chopping off the head was there. Therefore, the alleged circumstance of recovery of 'Khukhri' at the instance of appellant Tara Dutt is irrelevant.
29. Partly burnt purse and handkerchief allegedly recovered at the instance of Tara Dutt, appellant have not been stated to belong to deceased by any of the witnesses nor has PW-5 Jatinder Singh stated that the partly burnt purse belonged to him and contained the documents of the car. Thus, this circumstance is also not relevant.
30. Circumstance (d) is also not relevant, because the car stereo Ext. P-9 and cassettes Exts. P-10 to P-13 are though claimed by PW-5 Jatinder Singh to belong to him and to have been got fitted by him in the car that was found abandoned, yet in view of the finding already recorded that the car is not proved to belong to him, his claim that the stereo and the cassettes belong to him and were available in the car, in question, cannot be believed. Hence the recovery of the stereo and the cassettes allegedly at the instance of appellant Rajesh Kumar is of no relevance.
31. So far as circumstance (e) is concerned, it has already been held hereinabove that the car that was found abandoned on 28.4.2002 in village Andheri near the house of PW-19 Tapender Singh, did not belong to PW-5 Jatinder Singh. The ownership of the car has not been proved. Jai Pal, as per prosecution version, drove the appellants in a car of PW-5 Jatinder Singh. It is nobody's case that Jai Pal was shifted by the appellants to the car found abandoned near the house of PW-19 Tapender Singh and then murdered in that car. Hence the presence of stains of human blood on the foot mat of the said car cannot be said to be a circumstance connecting the appellants with the alleged crime.
32. As regards circumstance (f), presence of some stains of human blood on the T-shirt of appellant Rajesh Kumar and Pant of appellant Tara Dutt by itself does not prove that they were involved in the killing of Jai Pal or that Jai Pal has in fact been killed. Appellants Rajesh Kumar and Tara Dutt were wearing these clothes when they were taken into custody about 14-15 days after commission of the alleged crime. No evidence has been led by the prosecution to show that T-shirt Ext. P-21 and Pant Ext. P-22 belonging to appellants Rajesh Kumar and Tara Dutt, respectively, were worn by them on the night intervening 27th and 28th of April, 2002, when the alleged murder took place. Therefore, presence of stains of human blood on these clothes cannot be taken to be a circumstance linking these two appellants with the crime.
33. As an upshot of the above discussion, we are of the definite view that the case of the prosecution does not stand established beyond reasonable doubt. Consequently both the appeals are accepted, judgment of the trial Court convicting and sentencing the appellants of the offences under Sections 364, 302 and 392 of the Indian Penal Code is set aside and the appellants are acquitted. They being in jail, are ordered to be released immediately, in case their detention is not required in any other case.