Rajasthan High Court - Jaipur
Shahjad And Anr vs State Of Rajasthan Through Pp on 6 August, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
1. D.B. Criminal Appeal No. 613/2014.
Kailash Dhakan S/o Shri Amarchand, Aged about 30 years,
by caste Jat, Thakano Ki Dhani, Rupangarh, District Ajmer
(Raj.)
(At present accused confined in Central Jail Ajmer).
----Appellant
Versus
State Of Rajasthan Through Public Prosecutor.
----Respondent Connected With
2. D.B. Criminal Appeal No. 612/2014
1. Shahjad son of Shri Liyaquat, aged about 31 years, by caste Kayamkhani Musalman, resident of Chhawtakala Police Station Role, District Nagaur (Rajasthan)
2. Sikander Ali son of Shri Peer Bux, aged about 21 years, by caste Mirasi Musalman, resident of near Mandir Mataji, Kamla Market, Plice Station Kotgate, District Bikaner (Rajasthan) (Both are presently lodged in Central Jail at Ajmer).
----Appellant Versus State Of Rajasthan Through Public Prosecutor.
----Respondent
3. D.B. Criminal Appeal No. 652/2014.
1. Balbha Ram son of Shri Ghasi Ram aged about 30 years, by caste Jat,
2. Madan Lal son of Shri Ghasi Ram aged about 35 years, by caste Jat,
3. Heera Lal son of Shri Bhanwar Lal aged about 33 years, by caste Jat, All residents of Naya Gaon, Harmada, Police Station Bandar Seendari, District Ajmer. (At present lodged in Central Jail, Ajmer).
----Appellant
Versus
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State Of Rajasthan Through Public Prosecutor.
----Respondent For Appellants : Mr. Pankaj Gupta, Mr. Suresh Sahni, Mr. V.R. Bajwa and Mr. Rajesh Sharma For Respondent(s) : Mr. N.C. Choudhary, Special PP HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment / Order 06/08/2019 Vide this order, above mentioned appeals would be disposed of.
Appellants had faced trial in FIR No. 28 dated 9th March, 2011 registered at Police Station Rupangarh, District Ajmer under Section 365 Indian Penal Code, 1860. Later, offence under Section 302 IPC was added after the murder of the victim.
Prosecution story, in brief, as per the FIR, is that on 9 th March, 2011 at about 12 noon, complainant had reached Saini Dhaba, Rupangarh Road, Bye-pass Sursura alongwith Bhanwar Sinodiya. Balbha Ram, who was sitting in a Henna colour un-numbered Bolero vehicle signaled Bhanwar to come towards him. Bhanwar Sinodiya got down from his own vehicle and went towards the Bolero vehicle. They talked for some time and thereafter Bhanwar sat in the Bolero with Balbha and complainant Bhagchand was asked to follow them. However, the Bolero vehicle was driven at a fast speed (Downloaded on 29/08/2019 at 10:37:48 PM) (3 of 48) [CRLA-613/2014] on Mega Highway and they lost sight of the vehicle. Abdul Gaffar called Bhanwar on his mobile phone but he did not reply. Thereafter, complainant made a phone call to Balbharam and he said that they were coming back in 5 minutes. When the complainant again made a phone call, he said that they are coming back within fifteen minutes. Complainant told Balbha Ram that he wanted to talk to Bhanwar. Balbha Ram said that he would make him to talk to Bhanwar and disconnected the phone. Thereafter both the phones were switched off. They had searched for Bhanwar Sinodiya but could not locate him. Hence, the FIR was lodged on the basis of complainant Bhagchand.
After completion of investigation and necessary formalities challan was presented against the Appellants under Section 302 read with Section 120B and 364 IPC and Section 3 read with Section 25 and 27 of Indian Arms Act, 1959 (hereinafter referred to as 'the Act').
In order to prove its case, prosecution examined 65 witnesses. Appellants, when examined under Section 313 Code of Criminal Procedure 1973, prayed that they were innocent and had been falsely involved in this case.
Trial court vide impugned judgment dated 11.4.2014 convicted appellant Kailash Dhakan qua offence punishable under Section 302/120B IPC. Appellants Shahjad and Sikander Ali were convicted qua the offence punishable under (Downloaded on 29/08/2019 at 10:37:48 PM) (4 of 48) [CRLA-613/2014] Section 302/120B, 364/120B IPC and Section 3 read with Section 25 and 27 of Indian Arms Act. Appellant Balbha Ram was convicted under Section 302/120B, 364/120B/34 IPC and Section 3/25/27 of Arms Act. Appellant Madan Lal was convicted under Section 302/120, 364/120B/34 IPC. Appellant Heera Lal was convicted qua the offence punishable under Section 302/120B and 364/120B/34 IPC.
Vide impugned order, appellant Kailash Dhakan was awarded imprisonment for life and a fine of Rs. 3000/-under section 302/120B IPC. It was further ordered that in case of default of payment of fine, he would further undergo simple imprisonment for 3 months.
Appellants Shahjad and Sikander Ali were ordered to undergo imprisonment for life under Section 302/120B IPC with fine of Rs. 3,000/-. It was further ordered that in case of default of payment of fine, they would further undergo simple imprisonment for 3 months. They were sentenced to undergo 10 years rigorous imprisonment under Section 364/120B/24 IPC with fine of Rs. 3,000/-. It was further ordered that in case of default of payment of fine, they would further undergo simple imprisonment for 3 months. Under Section 3 read with Section 25 and 27 of Indian Arms Act, they were sentenced to undergo rigorous imprisonment for 3 years with fine of Rs. 1,000/-. It was further ordered that in case of (Downloaded on 29/08/2019 at 10:37:48 PM) (5 of 48) [CRLA-613/2014] default of payment of fine, they would further undergo simple imprisonment for one month.
Appellant Balbha Ram was awarded imprisonment for life and a fine of Rs. 3000/- under Section 302/120B IPC. It was further ordered that in case of default of payment of fine, he would further undergo simple imprisonment for 3 months. He was sentenced to undergo 10 years rigorous imprisonment under Section 364/120B/24 IPC with fine of Rs. 3,000/-. It was further ordered that in case of default of payment of fine, he would further undergo simple imprisonment for 3 months. Under Section 3 read with Section 25 and 27 of Indian Arms Act, he was sentenced to undergo rigorous imprisonment for 3 years with fine of Rs. 1,000/-. It was further ordered that in case of default of payment of fine, he would further undergo simple imprisonment for one month.
Appellant Madan Lal was awarded imprisonment for life and a fine of Rs. 3000/- under Section 302/120B IPC. It was further ordered that in case of default of payment of fine, he would further undergo simple imprisonment for 3 months. He was sentenced to undergo 10 years rigorous imprisonment under Section 364/120B/24 IPC with fine of Rs. 3,000/-. It was further ordered that in case of default of payment of fine, he would further undergo simple imprisonment for 3 months. (Downloaded on 29/08/2019 at 10:37:48 PM)
(6 of 48) [CRLA-613/2014] Appellant Heeralal was awarded imprisonment for life and a fine of Rs. 3000/- under Section 302/120B IPC. It was further ordered that in case of default of payment of fine, he would further undergo simple imprisonment for 3 months. He was sentenced to undergo 10 years rigorous imprisonment under Section 364/120B/24 IPC with fine of Rs. 3,000/-. It was further ordered that in case of default of payment of fine, he would further undergo simple imprisonment for 3 months.
Mr. V.R. Bajwa, learned counsel for the appellants Balbha Ram and Heera Lal, has submitted that initial version of the prosecution was with regard to abduction of Bhanwar Sinodiya. At that time no suspicion had been raised qua his murder. There was no enmity or bad-blood between the parties. Abduction means when a person is taken away by deceit or by force but in the present case both the ingredients were missing as Bhanwar Sinodiya had himself sat in the vehicle of the accused as stated by the prosecution witness. Appellants had no motive to commit the murder of the deceased. Both the parties had attended the inauguration of the Dhaba. There was no dispute with regard to demand of money between the purchaser and seller of the land. Jora Ram had agreed to pay Rs. 51 lacs to Kailash Dhakan. Thus, deceased was on the side of the accused as he had agreed to get their payment of Rs. 51 lacs from Jora Ram. Prosecution story that accused had conspired to murder Bhanwar (Downloaded on 29/08/2019 at 10:37:48 PM) (7 of 48) [CRLA-613/2014] Sinodiya was not established because in case the accused wanted to commit the murder of Bhanwar Sinodiya, they would not have abducted him from a public place in a broad day light by hiring killers to do the job. The route plan Ex. P.30 to Ex. P.37 was prepared on the alleged joint statements of accused Madan Lal and Sikander. The said joint statement of the accused was not admissible in evidence. A damaged bullet was recovered from the Bolero and the said fact showed that there was a stray firing in the vehicle. The CDRs exhibited on record with regard to call details of accused and prosecution witnesses were not admissible in evidence as the requisite certificate under Section 65-B of the Evidence Act was not obtained by the Investigating Agency. Recoveries effected from the accused were also not admissible in evidence as most of the recoveries had been effected by the police officials and no independent witnesses had been joined at the time of recoveries.
It was not established on record that appellant Balbha Ram had purchased the Bolero vehicle in question from the owner. It was not believable that somebody would give his vehicle only for Rs. 40,000/- while remaining Rs. 5 lacs were still outstanding. Although, the witnesses deposed that the Bolero in question was of Heena colour, whereas, as per the report of the Forensic Science Laboratory the Bolero vehicle was of grey colour. So far as the appellant Heera Lal is (Downloaded on 29/08/2019 at 10:37:48 PM) (8 of 48) [CRLA-613/2014] concerned, he was not named by P.W.1. Presence of P.W.2 and P.W.4 was doubtful as their statements were recorded after 6 days of the incident, although, P.W.2 had identified the dead-body of the deceased. Cell phone of Balbha Ram was in the name of Motilal. The said Moti Lal had not been examined during trial to the effect that he had given his mobile phone to Balbha Ram. Similarly the phone used by appellant was in the name of Khiya Ram but the said Khiya Ram had not been examined during trial to the effect that he had given his phone to the deceased. Weapons thrown in the water ditch were recovered on the information of Jai Singh. However, the person who had thrown the weapons in the ditch had not been got identified from Jai Singh. Although, as per the disclosure statement suffered by the appellant Balbha Ram, he had offered to get recovered pistol and cartridges but recovery of shirt had also been falsely foisted o him. There was no occasion for the appellant Heera Lal to have buried his shirt about 20 meters from the spot where the Bolero was found lying in an abandoned condition. As per the report of Seriologist Ex. P.130 there were two blood groups on the papers recovered from Madan Lal and shirt of Balbha Ram. Hence, it was evident that the Investigating Agency had done lot of padding in the case. The circumstance of last seen alleged by prosecution witness was not believable as there was a gap of 27 hours between the witnesses having last seen the deceased with the accused and the recovery of the (Downloaded on 29/08/2019 at 10:37:48 PM) (9 of 48) [CRLA-613/2014] dead-body. The bullets from the dead-body had been taken out by the Doctor on 10.3.2011 but it was not brought on record as to whom the said bullets were handed over by the doctors. The bullets were deposited in Malkhana on 13.3.2011. There was no evidence on record to establish as to where the bullets had been kept from 10.3.2011 to 13.3.2011. Ex. P.84 writing allegedly executed between Balbha Ram and Kailash Dhakan was not established on record as the witnesses who had attested the same did not know the contents of the said document.
In support of his arguments, learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in Chaman Lal Vs. State of Punjab AIR 1970 SC 1372, wherein it has been held as under :-
"The appellant cannot rely on Exhibit D.B. dated 27 August, 1962 to establish good faith in writing the letter dated I August-, 1962. Furthermore, Exhibit D.B. which is alleged to have been written by the residents of Sujanpur was not proved by calling persons who are alleged to have signed. Documents do not prove themselves. Exhibit D.B. was not proved by the persons who are alleged to have signed the same nor was the truth of statements contained in Exhibit D.B. proved. The enquiry made by the Civil Surgeon on 27 August, 1962 was found by the High Court to have been engineered by the private animus of the -appellant against the respondent by sending some residents to the place of enquiry. This finding not only disproves good faith but establishes total lack of care and prudence on the part of the appellant."
He has further relied on the judgment of Hon'ble Supreme Court in State of Himachal Pradesh Vs. Jai Lal & Ors. Etc. 1999(2) Supreme (Cr.) 343, wherein it has been held as under :-
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(10 of 48) [CRLA-613/2014] "An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions"
Learned counsel has further placed reliance on the judgment of Hon'ble Supreme Court in Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367, wherein, it has been held as under :-
"It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against the person. The evidence of Pandurangam, therefore, hardly provides any incriminating evidence against the present appellant. And this jeweller does not enquire how four persons unconnected with each other came together to sell one ring and that did not arouse any suspicion in him. The jeweller is undoubtedly a purchaser of stolen property. His evidence itself would require some corroboration (in ?) the circumstances of this case and none is forthcoming."
Learned counsel has further relied on the judgment of Hon'ble Supreme Court in Navaneeth Krishnan Vs. State (2018)16 SCC 161, wherein it has been held as under :-
"PW-11 was able to identify all the three accused in the Court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW-11 is established and (Downloaded on 29/08/2019 at 10:37:48 PM) (11 of 48) [CRLA-613/2014] inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone can't discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."
Learned counsel has again relied on the judgment of Hon'ble Supreme Court in Ramreddy Rajesh Khanna Reddy Vs. State of A.P. (2006) 10 SCC 172, wherein it has been held as under:-
"The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration.
In State of U.P. v. Satish this Court observed:
"22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2."
Learned counsel has also placed reliance on the judgment of Hon'ble Supreme Court in Jaswant Gir Vs. State of Punjab (2005) 12 SCC 438, wherein it has been held as under:-
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(12 of 48) [CRLA-613/2014] "The High Court resorted to a guess that the deceased would have been lured to consume liquor or his relatives might be there at Devigarh. Without probing further into the correctness of the "last-seen" version enamating from PW 14's evidence even assuming that the deceased did accompany the accused in their vehicle this circumstance by itself does not lead to the irresistible conclusion that the appellant and his companion had killed him and thrown the dead body in the culvert. It cannot be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arises against the accused . There is considerable time-gap between the deceased boarding the vehicle of the appellant and the time when PW 11 Found the dead body."
Learned counsel has further placed reliance on the judgment of Hon'ble Supreme Court in Anvar P.V. Vs. P.K. Basheer & Ors., (2014) 10 SCC 473, wherein it has been held as under :-
"15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) There must be a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."
Learned counsel has further placed reliance on the judgment of Hon'ble Supreme Court in Babubhai (Downloaded on 29/08/2019 at 10:37:48 PM) (13 of 48) [CRLA-613/2014] Bhimabhai Bokhiria & Anr. Vs. State of Gujarat & Ors. AIR 2014 SC, 2228, wherein it has been held as under :-
"The other evidence sought to be relied for summoning the appellant is the alleged conversation between the appellant and the accused on and immediately after the day of the occurrence. But, nothing has come during the course of trial regarding the content of the conversation and from call records alone, the appellant's complicity in the crime does not surface at all."
Learned counsel has also placed reliance on the judgment of the Uttar Pradesh High Court in State of U.P. Vs. Mohd. Iqram & Anr JT 2011 (6) SC 650, wherein it was held as under :-
"So far as the issue of rape of the deceased prior to her murder by Suresh Kumar, accused, her ex-husband, is concerned, the trial court has recorded findings of fact on this aspect in the negative. Undoubtedly, post-mortem report contains such observations, but Dr. G.R. Sharma (PW.1) has not made any such reference either in his examination-in-chief or cross-examination. Nor this aspect had ever been put to either of the three accused in their statements recorded under Section 313 of Code of Criminal Procedure, 1973 (hereinafter called `Cr.P.C.'). We fail to understand as under what circumstances it was permissible for the High Court to make such observations about the post-mortem report. Accused Suresh Kumar has been acquitted by the trial court. The State, for reasons best known to it, did not prefer any appeal against the said order of acquittal. We are of the considered opinion that it was not permissible for the High Court to castigate the accused Suresh Kumar with such observations holding him guilty of committing rape and subsequently murder of his ex- wife Rashmi. Undoubtedly, the post-mortem report had been proved but that does not mean that each and every content thereof is stood proved or can be held to be admissible. Such observations cannot be termed to be a substantive piece of evidence. Dr. G.R. Sharma (PW.1) did not even whisper about the same in his statement made in the court which is the only substantive piece of evidence in law. The court cannot place reliance on incriminating material against the accused, unless it is put to him during his examination under Section 313 Cr.P.C. Thus, the High Court committed an error by taking into consideration the inadmissible evidence for the purpose of deciding the criminal appeals and holding the person guilty who had already been acquitted by the trial court. The post- mortem report had been examined at the time of framing of the charges. The trial court did not frame any charge under Section 376 IPC or Section 376 read with Section 511 IPC. More so, no witness had ever mentioned anything in this (Downloaded on 29/08/2019 at 10:37:48 PM) (14 of 48) [CRLA-613/2014] respect. Thus, it is beyond any stretch of imagination of any person, how such observations could be made by the High Court."
Learned counsel has also placed reliance on the judgment of this court in Manoj Kumar & Anr. Vs. State of Rajasthan D.B. Criminal Appeal No. 923/2008 & two other connected matters decided on January 30, 2015, wherein it has been held as under:-
"Interestingly again for this recovery, Rajendra Kumar an interested witness has been associated by the police. There is no reason offered by Nawab Khan for not associating independent witnesses. Thus, the recovery is not in accordancewith the mandate of the law. On the other hand, Hanuman, an independent witness, has not been examined by the prosecution. Again the prosecution has withheld a material witness. Thus, an adverse inference should be read against the prosecution."
Learned counsel has also placed reliance on the judgment of Hon'ble Supreme Court in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors., Civil Appeal No.(s) 20825-20826 of 2017 and other connected matters decided on July, 26, 2019, wherein it has been held as under:-
"We are of the considered opinion that in view of Anwar P.V. Vs. P.K. Basheer and others, (2014) 10 SCC 473, the pronouncement of this Court in Shafhi Mohammad Vs. State of Himachal Pradesh (2018 2 SCC 801, needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter.."
Mr. Suresh Sahni, learned counsel for appellant Shahjad and Sikander has further added to the submissions made by Mr. Bajwa that P.W.1 Bhagchand, P.W.2 Harji Lal, P.W.3 Abdul (Downloaded on 29/08/2019 at 10:37:48 PM) (15 of 48) [CRLA-613/2014] Abdul Gaffar and P.W.4 Hanuan were planted witnesses. So far as appellants Shahjad and Sikander are concerned, they have been involved in this case on the basis of test identification parade. The appellants had already been shown to the witnesses as their faces were not covered while they were taken for remand to the court. Witnesses had not disclosed the physical appearance of the appellants in their statements. Hence, the identification of the appellants in identification parade was meaningless. Appellants had not used any weapon at the time of incident. In case the prosecution story was liable to be believed then there was no need for the appellants to have abducted the deceased in a broad day light because they could have committed the murder of the deceased in secrecy. P.W.8 had stated that appellant Sikander had taken lift from him but no test identification of Sikander got effected from the said witness. Site Plan Ex.P.3 was prepared at the instance of P.W.1 and the same was not admissible in evidence as it was against the provisions of Section 7 of the Evidence Act. DNA test report of hair of appellant Shahjad allegedly lifted from the T-shirt, recovered from the Bolero vehicle was liable to be discarded as there was no evidence on record that the blood sample of appellant Shahjad had been taken for the purposes of comparison. The story put forward by the prosecution that firing had been done in Bolero vehicle was not believable as there was not tattooing or blackening at the seat of injuries of the deceased. Hence, it could not be said that the firing had been done from a close range. P.W. 62 Ashok Kumar could have been produced for test identification parade of the (Downloaded on 29/08/2019 at 10:37:48 PM) (16 of 48) [CRLA-613/2014] accused who had stayed in his hotel. P.W.61 was himself the Investigating Officer and attesting witness to various memos. In support of his arguments, learned counsel has placed reliance on the judgment of Hon'ble Supreme Court in Tori Singh and another Vs. State of Uttar Pradesh AIR 1962 SC 399, wherein it has been held as under :-
"The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of s. 162 of the Code of Criminal Procedure., for it is in effect nothing more, than the statement of the Sub-inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-inspector saw himself at the spot; but any mark put on the sketch.. map based on the statements made by the witnesses to the Sub- inspector would be inadmissible. in view of the clear provisions of s. 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation."
He has also placed reliance on the judgment of Hon'ble Supreme Court in Wakil Singh & Ors. State of Bihar 1981 (Supp) SCC 28, wherein it has been held as under :-
"In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial court. The High Court, however has chosen to rely on the evidence of a single witness, completely over-looking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. parade about 3 1/2 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these (Downloaded on 29/08/2019 at 10:37:48 PM) (17 of 48) [CRLA-613/2014] circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness."
Mr. Pankaj Gupta, on behalf of appellant Kailash Dhakan, has added that the said appellant was not named in the FIR nor he was allegedly present at the Dhaba. There was no material on record to establish that the appellant Kailash Dhakan had conspired with the other accused to commit murder of the deceased. As per P.W.3, Bhanwar Sinodiya had talked to appellant Kailash Dhakan through Amit on phone. However, Amit had not been examined as prosecution witness. As per P.W.1, deceased had talked to appellant Kailash Dhakan on phone through Hameed but Hameed was not examined as a witness during trial. Jora Ram was in possession of the land in question. Thus, gainers were Jora Ram and Nand Ram, who had got the possession of the land without payment of money. Deceased and Kailash Dhakan were known to each other and were having cordial relations. In fact, Kailash Dhakan was agent of wife of the deceased when she had fought elections. Ex. P.86 was not signed by the appellant Kailash Dhakan. Appellant Kailash Dhakan had no reason to give the complaint and the same has been created by the prosecution by way of padding. The said document was not mentioned by the Investigating Officer P.W.61 in his statement under Section 161 Cr.P.C., and for the first time the same had been tendered in evidence during trial. The said document was not part of the challan. No reference was made regarding the appellant even in Ex. P.30 to Ex.P.37 route chart prepared on the basis of disclosure statements of co-accused.
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(18 of 48) [CRLA-613/2014] In support of his arguments, learned counsel has placed reliance on the judgment of Hon'ble Supreme Court in B. Virupakshajah Vs. State of Karnataka & Ors., (2016) 4 SCC 595, wherein it has been held as under :-
"The next aspect for our consideration is the alleged conspiracy. But as pointed out by the High Court, there exists no cogent and positive evidence to prove the conspiracy. Proof of conspiracy is strictly conditional upon there being reasonable grounds to believe that two or more persons had conspired together to commit an offence. In the present case, the cultivators of the respondents were examined to prove that the accused respondents had prior plans to leave their place of cultivation."
He has also placed reliance on the judgment of Hon'ble Supreme Court in State (Government of NCT of Delhi) Vs. Nitin Gunwant Shah (2016) 1 SCC 472, wherein it has been held as under :-
"The prosecution relies upon the existence of criminal conspiracy, which resulted into the death of Lalit Suneja. This Court has time and again laid down the ingredients to be made out by the prosecution to prove criminal conspiracy. It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that meeting of mind is essential; mere knowledge or discussion would not be sufficient. Yet, the prosecution has failed to prove the evidence which establishes any prior meeting of mind of the accused. The prosecution merely proved that all the accused were present in Delhi on the date of occurrence, and that the alleged motor-bike and the car used in incident belonged to respondent No.2, Om Prakash Srivastava @ Babloo. The High Court rightly dismissed this argument, as the involvement of the said vehicles in commission of the crime were never proved. Neither any prior meeting of mind of the accused was proved, nor any action, individually or in concert, was proved against any of the accused. Needless to say that the entire foundation of the prosecution story was never established."
He has further placed reliance on the judgment of Hon'ble Supreme Court in Subhash @ Dhillu Vs. State of (Downloaded on 29/08/2019 at 10:37:48 PM) (19 of 48) [CRLA-613/2014] Haryana (2015) 12 SCC 444, wherein it has been held as under :-
"To make out the offence under Section 120-B IPC, the prosecution must lead evidence to prove the existence of some agreement between the accused persons. There is no specific evidence as to where and when the conspiracy was hatched and what was the specific purpose of such conspiracy. No such evidence has been adduced in the present case. Therefore, in our opinion, the conviction and sentence of the appellants have to be set aside."
Learned counsel has also placed reliance on the judgment of Hon'ble Supreme Court in John Pandian Vs. State of Tamil Nadu (2010) 14 SCC 129, wherein it has been held as under :-
"The only other witness posed against him is PW-38, K. Veerasamy who acted as the mahazar witness. According to this witness, this accused had discovered Rs.18,000/-, two sovereigns gold chain and a scooter. He proved Exhibit P-45. The seizure memo is Exhibit. In our opinion, this discovery would be of no consequence whatsoever unless material objects discovered are connected to the crime in any manner. Nobody deposed as to who had paid money to this witness nor has it been brought on record that it was he who purchased the so-called gold chain and the scooter and even if he has, the prosecution has miserably failed to show that the money passed to him was only from 77 Venkatraman (A-1) via Sivakumar (A-2). Therefore, on the basis of discovery, it will be extremely risky to book this accused and hold him a member of the conspiracy. It must be said that all these aspects were viewed by the trial and the appellate Court with jaundiced eyes. Merely because there are some discoveries they do not in any manner connect the accused and there is no presumption that merely because the accused has some things in his possession, which he fails to explain, therefore, all this money and the gold chain must have come only on account of the money that he had allegedly received as a member of the conspiracy from Sivakumar (A-2). In our opinion, this evidence would fall short to hold that he was a member of the conspiracy. This may, at the most, raise suspicion against him but that would be completely without any justification. This accused would, therefore, has to be given the benefit of doubt.
We have already commented on the travel aspect. That does not impress us at all. But even if it is held that Tamil Selvan had reserved and that it was Tamil Selvan whose admitted handwriting tallied with that handwriting, it may, at the most, prove the presence of Tamil Selvan in those Hotels.(Downloaded on 29/08/2019 at 10:37:48 PM)
(20 of 48) [CRLA-613/2014] In our opinion, that is not sufficient to rope him in the conspiracy. The established law is that every such circumstance, which is relied upon by the prosecution for establishing conspiracy, must be proved to have nexus with that conspiracy. In the absence of 82 any convincing evidence, merely because the accused travelled together with others and he stayed in those two Hotels, it cannot be said that it was in order to perpetrate a conspiracy. We have already expressed our doubts regarding his identification. In the absence of his identification, even if these handwritings go to prove his presence, that may, at the most, raise a suspicion against the accused, which in our opinion, is not sufficient. He is said to have discovered a Titan watch vide M.O. 11 and cash vide M.O. 12. We do not see as to how any of these material objects can be connected with the conspiracy. No evidence has been brought on record to suggest that he could not have Rs.23,000/-. The evidence of discovery is again a weak kind of evidence and this Court, on a number of occasions, has refused to rely solely on the discovery evidence. There is nothing brought on record suggesting that these 23,000 of rupees were paid to him by Venkatraman (A-1) via Sivakumar (A-2). There is no connection established in between him and John Pandian (A-7) or for that matter, Kumar s/o Vellaichami (A-9), Pavunraj @ Pavun (A-10) and Prince Kumar @ Prince (A-11). In the absence of all these materials, it will be extremely risky to convict him on the basis of his being a conspirator. It 83 was further suggested that in the arrival registers being Exhibit P-20 and Exhibit P-26 pertaining to Jankiram Hotel and Blue Star Hotel respectively, he gave the same wrong address as Tamil Selvan, Gandhipuram, Coimbatore. In our opinion, this is an extremely weak circumstance to book Ubaiadulla @ Tamil Selvan (A-4). We, therefore, proceed to give him benefit of doubt.
It was suggested that the handwriting of Sivakumar (A-2) was proved on the reservation slips. Even in the opinion of R. Srinivasan (PW-42), his handwriting was there on Q2 and Q3, which are Exhibits P-24 and P-25. There can be no dispute about his handwriting on Q3 because he was asked to encash the cheque given to him by Venkatraman (A-1). In respect of Q1, however, which is a train reservation form vide Exhibit P- 14, even handwriting expert is not so sure when he says that 85 there is possibility of the same person writing Q1, Q2 and Q3 and S1 to S7. We are really not convinced with the evidence of handwriting expert alone, as this accused had not been identified by anybody. In fact, in comparison to the other accused persons, namely, Ubaiadulla @ Tamil Selvan (A-4), Yusuf (A-5) and Abdul Kareem (A-6), his role is greater, inasmuch as besides the common evidence, it was suggested that an amount of Rs.1 lakh was seized from him when he was arrested and, thereafter, he agreed to discover the other cash, namely, Rs.21,000/- from his house. Mere recovery of money would be of no consequence unless the prosecution comes out with a case and give some prima facie evidence that this cash was a part of the money that he had received after encashing the cheque. In fact, there is nothing to suggest that he had not given back the cash. Shri Ramamoorthy, learned Senior Counsel tried to submit that this accused should have given some explanation about this cash. We agree with this (Downloaded on 29/08/2019 at 10:37:48 PM) (21 of 48) [CRLA-613/2014] contention, however, that would be only if it was shown that this accused received this cash from Venkatraman (A-1) and that too for the purpose of success of conspiracy. The prosecution has not discharged that burden.
Similar is the story regarding the stay of these accused persons at Blue Star Hotel. The staff in Jankiram Hotel and the Blue Star Hotel could have been asked to identify these four persons that they at least stayed on relevant dates. That was also not done. Shri Ramamoorthy urged very earnestly that there was no explanation given by these accused persons as to why they travelled together from Coimbatore to Madurai and from Chennai to Coimbatore. Now, there is no question of these explanations because in the first place it was not proved at all that these persons actually travelled. 95 Even if we presume that they did travel together, that by itself reaches the prosecution nowhere. They may have hundred other purposes for travelling. A mere nonexplanation as to why the accused persons made those travels by itself will not create a piece of evidence against these accused persons though that may be relevant in consideration of their participation. Further, even if it is presumed that from these accused persons money was discovered there is nothing on record that the money was given by Venkatraman (A-1) to accused No.2, Sivakumar and through him to all the other accused persons. In fact, the prosecution was extremely confused as to how much money was said to have been agreed to be paid for the murder of Vivekanadan and as to how much money was distributed. All these things completely shatter the case of conspiracy at least in so far as the Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A5) and Abdul Kareem (A-6) and John Pandian (A-7) are concerned.
We have already commented on the telephonic calls allegedly made. There also the prosecution has drawn complete blank. Under the circumstances, it is very difficult to hold that Sivakumar (A-2), Ubaiadulla (A96 4), Yusuf (A-5) and Abdul Kareem (A-6) and John Pandian (A-7) were the conspirators. They have to be given the benefit of about for that purpose. It is undoubtedly true that Sivakumar (A-2) who was a mere office boy was shown with the amount of Rs.1 lakh carrying with him. Now, we fail to follow as to why Sivakumar (A-2) keep on parading himself with Rs.2 lakh and how is it that on that occasion was caught along with Rs. 1 lakh. That is apart from the fact that Sivakumar (A-2) has tried to give an explanation that it was his father's money who had received the same as his retiral benefits. We are not much on the explanation, as in our opinion, the mere possession of a lakh of rupees on his person would not take the theory of conspiracy any further."
Mr. Rajesh Sharma, learned counsel for appellant Madan Lal has further added that the name of appellant Madan Lal was not mentioned in the FIR, although, the complainant knew Madan Lal. In Hotel Kiran Palace two persons had (Downloaded on 29/08/2019 at 10:37:48 PM) (22 of 48) [CRLA-613/2014] stayed as per the prosecution story, but appellant was not named as one of the said persons. In fact, appellant had been arrested in an injured condition as was evident from Ex.P.11 but no explanation was given in this regard by the prosecution nor appellant was got medically examined. Appellant was not named by P.W. 1 Bhagchand or P.W.3 Abdul Abdul Gaffar in their statements under Section 161 Cr.P.C. As per Ex.P.30 appellant was undergoing interrogation from 1. p.m. to 6 p.m., on 17.3.2011. Hence, the recovery allegedly effected from the appellant on 17.3.2011 at 3.30 p.m., vide Ex.P.28 were falsely foisted on the appellant. P.W.2 Harji Lal was a close relative of the appellant and was falsely introduced as a witness in this case to strengthen the prosecution story.
Learned State Counsel Mr. N.C. Choudhary has submitted that all the accused in connivance with each other had committed murder of Bhanwar Sinodiya. Bhanwar Sinodiya had sat in the vehicle of Balbha Ram without knowing the intentions of the accused. Balbha Ram had taken possession of the Bolero vehicle by paying only Rs. 40,000/- to the owner. P.W.50 Madna Ram deposed in his cross- examination by the Public Prosecutor that Balbha Ram had also come at the time of purchase of the vehicle. Bhanwar Sinodiya had been taken in the Bolero vehicle and his dead- body was recovered in the same vehicle. Hence, the prosecution had been successful in establishing its case against the accused. Accused Kailash Dhakan had called Bhanwar Sinodiya to Saini Dhaba and from there Bhanwar Sinodiya was taken in the Bolero vehicle by accused Balbha (Downloaded on 29/08/2019 at 10:37:48 PM) (23 of 48) [CRLA-613/2014] Ram and others. Thus, it was evident that all the accused were in conspiracy with each other and had committed the crime in question. So far as appellant Shahjad is concerned, he had moved two applications before the trial court for declaring him an approver. However, the said applications were dismissed.
Present case relates to murder of Bhanwar Sinodiya. Case rests on circumstantial evidence.
It has been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh AIR 2012 Supreme Court 1552, as under:-
"There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence.
It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of (Downloaded on 29/08/2019 at 10:37:48 PM) (24 of 48) [CRLA-613/2014] guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial."
It has also been held by the Hon'ble Supreme Court in Bachan Singh vs. State of Punjab 1980 (2) SCC 684, as under:-
"In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan's case. These propositions may be summed up as under:
(i) The general legislative policy that underlies the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum punishment therefore, and to allow a very wide discretion (Downloaded on 29/08/2019 at 10:37:48 PM) (25 of 48) [CRLA-613/2014] to the Judge in the matter of fixing the degree of punishment. With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where me maximum punishment is the death penalty.
(ii) (a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible. "The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need."
(Referred to McGantha v. California (1971) 402 US 183 (b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment.
(iii) The view taken by the plurality in Furman v. Georgia decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un- guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in out Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in respect of one (Downloaded on 29/08/2019 at 10:37:48 PM) (26 of 48) [CRLA-613/2014] area of the world may not hold good in respect of another area.
(iv) (a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime.
(b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.
In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an un-guided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.
(v) (a) Relevant facto and circumstances Impinging on the nature and circumstances of the crime can be brought before the Court at the pre-conviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facto and circumstances had been specifically provided. When counsel addresses the Court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose either of the two (Downloaded on 29/08/2019 at 10:37:48 PM) (27 of 48) [CRLA-613/2014] alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances Whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr. P. C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr. P. C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin-constitutional under Article 21."(Downloaded on 29/08/2019 at 10:37:48 PM)
(28 of 48) [CRLA-613/2014] Let us examine the evidence lead by the prosecution to come to a conclusion as to whether it had been successful in proving its case against the appellants.
Complainant Bhagchand, while appearing in the witness box as P.W.1, has deposed that on 9 th March,2011 he was sitting at Kishangarh Sanodiya Marble. Bhanwar Sinodiya, Nandram Dhakad and Joraram alongwith 2-3 other persons were also sitting there. In the meantime Bhainsa and Abdul Abdul Gaffar came there. Then Amit told Bhanwar that Thakur Kailash had made a phone call and had said that if Rs. 14.50 lacs had been given then account of Balbha Ram could be settled. Then Bhanwar made a phone call to Kailash and told him that he should bring the entire money and should come alongwith Balbha Ram. Joraram and Pannaram, who had purchased the land, were already sitting there and Bhanwar told them that they should bring the entire money and should also bring Rs. 100/- stamp paper alongwith Rs. 40 lacs. Prior to this Rs. 7 lacs had been paid at one instance and Rs. 4 lacs had been paid at another instance. In all Rs. 11 lacs had been paid. Rs. 4 lacs had been given to Balbha Ram and Rs. 4 lacs had been given to Kailash Dhakan. Then Hameed was told to call Balbha and Kailash so that the account could be settled. Hameed made a phone call to Kailash. After completing the conversation Hameed told (Downloaded on 29/08/2019 at 10:37:48 PM) (29 of 48) [CRLA-613/2014] Bhanwar that there was change in the attitude of Kailash Then Bhanwar told Hameed to call Kailash. Then Kailash told Hameed that Rs. 40 lacs be paid and sale-deed of the land of Dhaba be got executed. He would bring Balbha Ram. Then Bhanwar talked to Kailash and told him that the deal was settled at Rs. 51 lacs and why he had changed the stand. He should return Rs. 11 Lacs. Kailash Dhakan declined to return Rs. 11 Lacs . Bhanwar said that Rs. 11 Lacs of earnest money be returned and he should himself deal about the land and he had nothing to do with it. Bhanwar told him that he was going to Rupangarh to take the money back. Then he alongwith Abdul Abdul Gaffar and Bhanwar left for Rupangarh in a Scorpio Car at about 9-9.30 a.m. While Bhanwar was taking to a person sitting in a Scorpio at Rupangarh, he received a phone call from Balbha Ram asking him to handover the phone to Bhanwar. Then he handed over the phone to Bhanwar and Balbha Ram said that they should reach Sursura at Saini Dhaba, Rupangarh. Then they all reached Saini Dhaba. Harji and Hanuman Punia were present there and were taking tea. He got down from the Scorpio of Bhanwar and went to answer the call of nature. Bhanwar and Abdul Abdul Gaffar sat in the vehicle. Then one un-numbered Henna colour Bolero came there with black colour glasses and nothing was visible inside the vehicle. Balbha Ram called Bhanwar towards himself. Then Bhanwar went towards the vehicle of Balbha Ram and asked Harji to serve water to (Downloaded on 29/08/2019 at 10:37:48 PM) (30 of 48) [CRLA-613/2014] them. Harji and Hanuman then took a jug of water and went near the car. When he tried to go towards vehicle then he was told by Bhawar that he should follow his Scorpio. Bhanwar sat in the vehicle of Balbha Ram. Three other persons were already sitting in the vehicle of Balbha Ram. He tried to identify the persons sitting in the vehicle of Balbha Ram. Out of them he know only one person who was Madan i.e., brother of Balbha Ram. Out of two other persons sitting in the vehicle, one was a little fat, whereas, the other person was thin. He had identified the said persons as Shahjad and Sikandar respectively in an identification parade. They tried to follow the Bolero vehicle but Bolero vehicle was driven at a fast speed on Mega Highway and could not be traced Then Abdul Abdul Gaffar made a phone call to Bhanwar but Bhanwar did not answer the call. Then he made a phone call to Balbha Ram, who said that they will return within 5 minutes. Then he again made a phone call to Balbha Ram and he said that wait for 15 minutes. He asked Balbha Ram to handover the phone to Bhanwar but Balbha Ram switched off the phone and then he made a phone call to Balbha on his mobile phone No. 9602862293 from his Mobile Phone No. 9829119516. Then he made a phone call to the police on account of suspicion as both phones of Balbha and Bhanwar were switched off. Thereafter, police officials conducted investigation. He identified the accused present in the court. (Downloaded on 29/08/2019 at 10:37:48 PM)
(31 of 48) [CRLA-613/2014]
P.W.2 Harji, P.W.3 Abdul Abdul Gaffar and P.W.4
Hanuman Punia have corroborated the statement of P.W.1. P.W.5 Joraram deposed that they had agreed to purchase land from Mehnot family alongwith four others. The land purchased by them was in possession of Kailash Dhakan. After executing the agreement with regard to purchase of the land they came to know that there was land dispute pending in the court with Chand Mal Agrawal. Then they enquired about the pending dispute in the court from Madhusudan Mehnot and he said that he will get the matter settled and would execute the sale deed on the 3 rd. Kailash Dhakan had constructed a Dhaba over the land in question. They came to know that Bhanwar Sinodiya was known to Kailash Dhakan. They asked Bhanwar to get a compromise effected with Kailash Dhakan. Bhanwar agreed that he would get the matter compromised. Bhanwar called Kailash Dhakan and he was accompanied by Balbha Ram. Compromise was effected between them and a demand of Rs. 51 lacs was raised. They told Bhanwar that the amount of compromise was too much. Then Bhanwar stated that now he had got the matter compromised and they should honour it. On 6 th March, they gave Rs. 4 Lacs to Kailash in the shop of Amit Bhainsa and on 7th they gave Rs. 7 lacs in the shop of Amit. Then Bhanwar said that Rs. 40 lacs be paid within 2-3 days. They were asked to bring money at Kishangarh Sinodiya Marble. (Downloaded on 29/08/2019 at 10:37:48 PM)
(32 of 48) [CRLA-613/2014] Then they reached the godown after making arrangement for money. Then they were told that they should reach Hotel of Pradeep Choudhary alongwith Rs. 100/- stamp paper and he would bring Kailash Dhankan and Balbha Ram there and writing would be done. Later, he came to know that Bhanwar had been abducted and murdered.
P.W.8 Mahendra deposed that he had taken one person who wanted to go to Nagaur in his vehicle. The fare was settled at Rs. 2,000/-. Thereafter they were apprehended by the police and were taken to the police post. In his cross- examination, he deposed that the person, who was sitting in his vehicle, was not got identified from him by the police.
P.W.11 Dinesh Kumar Sharma deposed that he was owner of Bolero bearing Registration No. RJ-37-UA-0843. He had purchased the same from Nagaur Automobiles in the year 2009. He had sold the said vehicle to Munna Mistry on 7th March, 2011. He was not present at the shop at the time of sale. Madana Ram Mali had met Munna Mistry and he did not know as to who was accompanying driver Madna Ram. The vehicle was given to the purchaser by his uncle Radheshyam. He had got the vehicle released on supardari as the vehicle was still registered in his name.
P.W.12 Radheyshyam Sharma deposed that they had sold vehicle bearing Registration No. RJ-37-UA-0843. Their driver Madna Ram had brought 3-4 person on 7 th March, 2011 (Downloaded on 29/08/2019 at 10:37:48 PM) (33 of 48) [CRLA-613/2014] and the vehicle was sold for Rs. 5,40,000/-. The purchaser had paid Rs. 40,000/- and the balance amount was to be paid after 25th March,2011.
P.W.14 Kanha Ram S/o Ramlal deposed that on 9 th March, 2011 at about 2.30 p.m., henna coloured Bolero came at a fast speed. He was preparing tea in his shop and noticed the vehicle as it was going at a fast speed. Vehicle stopped at some distance and one person got down from the vehicle and threw something. He again started preparing tea. After four days some persons had come and made enquiry from him. Police had also come after third day of murder of Bhanwar.
P.W.15 Kanha Ram S/o Nandram deposed that on 29 th March, 2011 recovery of articles i.e. pistol, cheqe book, were effected at the instance of appellant Shahjad and memos Ex.P.41 and Ex.P.42 were prepared which were attested by him.
P.W.23 Jagdish deposed that police had come to his shop in connection with murder of Bhanwar Sinodiya. On 9 th March, 2011 two persons had purchased a shirt from his shop for Rs. 160/-. The person who had purchased the shirt had come with police after 7-8 days.
P.W.26 Tez Singh deposed that on 13 th March, 2011, he was posted as Armorer at Police Line, Ajmer. He proved his report Ex. P.48, Ex.P.49 and Ex.P.50 with regard to weapons examined by him.
(Downloaded on 29/08/2019 at 10:37:48 PM)
(34 of 48) [CRLA-613/2014] P.W.29, Surendra Kumar deposed that in the year 2011, cheque book had been issued in favour of Bhanwar Sinodiya.
P.W.30 Ashok Kumar Gaur deposed that in the year 2009 accused Shahjad was undergoing sentence of imprisonment for life. Convict was granted second parole on 11 th August, 2010 and was to surrender on 17th August, 2010 but he had failed to surrender on the said day.
P.W.33, Dr. Hemendra Bhagtani deposed that on 12th March, 2011, he had conducted postmortem examination on the dead body of Bhanwar Sinodiya. He proved the report Ex. P.53. He deposed that there were 9 injuries on the person of deceased. Deceased had died on account of ante-mortem firearm injuries. Firing had been done from close range. The recovered bullets were kept for opinion of Ballistic Expert. As per the postmortem report deceased had suffered following external injuries.
"External injuries :-
1. Star shape, cruciate laceration- 4x2 cm in size c torned scalp c irregular margins on lt. partieal part of head. There is boggy swelling over the lt occipito-partieal area. The post hair shows patchy signed area at terminal part.
2. Laceration 6cmx2cm in size c torned scalp c blackening of rt. eye lids (as already explained).The margins of upper flap are overhanging on the lower flap. The wound is rt. side of forehead above the eye brow. The wound is parabolic in shape present on the medial aspect of eye brow.
3. Punctured laceration 1x1cm in size, oval in shape, inverted margins and abrasion around the wound present over lateral side of lt arm in upper part . Wound penetrating in side the muscular plane of the arm.(Downloaded on 29/08/2019 at 10:37:48 PM)
(35 of 48) [CRLA-613/2014]
4. Punctured laceration wound 2x1.5cm on outer aspect of the apex of lt axilla penetrating into the chest from lt lateral side near the outer fold of the axilla.
5. Lacerated wound 4x1cm on dorsum of lt. Hand c tear upto muscle level.
6. Lacerated wound 3x2cm at the base of lt. Thumb colossally c tear upto muscle level.
7. Punctured wound 1cmx1cm on rt. Arm upper part anteriorly c inverted margins around the puncture.
8. Puncture wound 2x1cm Rt. Arm lower part laterally.
9. Punctured wound 1cmx1cm upper part of rt. forearm On dissection of the Head :
There is haematoma underneath the scalp. There is comminuted fracture lt. Partieal bone extending upto the top of vertex, there is tear 6x6cm in size lt. Parito-temporal area of extradural meninges. Both lt. & rt. Cerebral hemisphere are torned c a tract-formation, the tract contains the blood clots. The tissue are cherry red in colour . There is fracture at the base of skull. On rt. Frontal bone there is fracture which has got a window, the margins of fracture on inner table are oblique, just below the Ext. Ing. No.2 in the upper part a metallic bullet is lodged in haematoma just over the eye brow. Ext. wound no. 1 is the wound of entry, where as ext. wound no.2 is wound of exit. On x-ray examination of skull there is one more metallic shadow present just beneath the frontal bone c has got morphology of the bullet, it could not be taken out, however the wound of entry for this bullet is also ext. wound No. 1.
On dissection of the chest:
Ext. injury no. 3 is penetrating into the muscle of ...and has perforated out at ext. injury no.4 through this punctured wound it has penetrated deep into the chest cavity, the direction ext. injury 3 to 4 is downward & medially into the chest cavity. Lt. Side of chest cavity is full of blood, lt lung is collapsed. A bullet recovered from rt. Side of the chest cavity- upper lobe of lt. Lung has a punctured wound thorough & thorough passing from lt. Lateral to lt. medial side. Both heart chambers are empty. [Ext. injury no. 3 has penetrated through ext. injury no.4 into the chest, after travelling through lt. lung upper lobe the bullet has lodged on rt. Side of chest.]"
Opinion of the Board of Doctors reads as under:-
"After conducting the PM of above person by the Board, we the members of the Board are in opinion:-(Downloaded on 29/08/2019 at 10:37:48 PM)
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1. Cause of death is the antemortem firearm injury [Rifled ammunition] causing trauma to brain & lt. lung with excessive bleeding in relation to Ext. injury no. 1,2,3,4.
2.The range of firing is close to view.
3.Injury to the brain & lung is sufficient to cause death in ordinary course of nature collectively and individually.
4. Bullet recovered from chest and cranium the each preserved for ballistic opinion.
5. Mentioned viscera's preserved for chemical analysis and send to FSL jaipur.
6.X-ray's taken before postmortem examination are seen and enclosed (six in number)"
P.W.34 Dr. R.K. Mathur and P.W.40 Dr. Surendra Diya corroborated the statement of P.W.33.
P.W.35 Omprakash deposed that on the basis of disclosure statement suffered by Madan Lal and Surendra regarding murder of Bhanwar Sinodiya, route description Ex.P.30 to Ex.P.37 were prepared.
P.W.37 deposed that CDRs prepared by him regarding mobile phone No. 9414548995 were taken in possession vide Ex.P.56 and Ex.P.57.
P.W.38 Vasu Kapil deposed that CDRs of call details regarding mobile phone No. 9782988968 and 9782988298 were taken in possession vide Ex.P.60 and Ex.P.62.
P.W.39 Krishan Avatar Trivedi deposed that on 8.4.2011 identification parade of Shahjad and Surendra was got effected from witnesses Bhagchand, Harji Ram and Hanuman. In this regard, he proved Ex.P.4 to Ex.P.10. (Downloaded on 29/08/2019 at 10:37:48 PM)
(37 of 48) [CRLA-613/2014] P.W.41 Saurabh Kumar deposed that he had supplied call details of the holder of Sim of mobile phone No. 9829119516, 9602862293, 9166507474, 9829567409 to the police and the same were Ex.P.64 and Ex.P.71 respectively. The names of details of the Sim No. 89917011012035433946, 89917010122330581272 and 89917005092918514614 were supplied by him vide Ex.P.72 to Ex.P.74. They did not have any details of Sim No. 9829567409 in their computer.
P.W.43 Bhawani Shanker deposed that on 14.3.2011 accused Surendra had deposed that he had stayed in Room No. 104 on 8.3.2011 in Hotel Kiran Palace, Jaipur. The room was booked in the name of Piyush. Relevant register was taken in possession by the police vide Memo Ex.P.75.
P.W.50 Madna Ram deposed that about 2 years ago, the vehicle belonging to Radheyshyam was sold for Rs. 5,40,000/-. Four persons had come for purchase of the vehicle i.e. Munna Mali, Ranglal, Babulal and one unknown person. Rs. 40,000/- were paid by those persons and remaining Rs. 5 lacs were to be paid within 15 days. Money had been paid by Munna Mali.
P.W.52 deposed that in the year 2011 he was posted as Patwari, Rupangarh. As per the record, Khasra No. 858 and 859 (old Nos 776, 777) were in the name of Jora Ram. In his cross-examination he deposed that a hotel had been (Downloaded on 29/08/2019 at 10:37:48 PM) (38 of 48) [CRLA-613/2014] constructed on 9 Bigha and 13 Biswas of land. The sale-deed was executed on 3.3.2011.
P.W.54 Lala Ram deposed that he had signed Ex. P.84. He deposed that he did not know if any writing was done between Balbha Ram and Kailash.
P.W.56 Ranglal did not support the prosecution story. P.W.57 Devaram did not support the prosecution story. P.W.59 Bhagchand deposed that he was working at a liquor vend. He further deposed that nobody had left any vehicle at the liquor vend.
P.W.60 Chhoturam deposed that Ex. P.84 was signed by him but he did not know the contents of the document.
P.W.61 Mohammed Ismail and P.W.64 Harimohan Sharma have deposed with regard to investigation of the case.
In the present case, accused Balbha Ram was arrested on 7.4.2011 vide Memo Ex.P.80. On the basis of disclosure statement suffered by appellant Balbha Ram under Section 27 of the Act vide Ex.P.120, country-made pistol with two live cartridges were recovered. Vide Ex.P.76 country-made pistol with two live cartridges and one shirt at the instance of appellant Balbha Ram were taken in possession on 8.4.2011. On 15.4.2011, appellant Bahbha Ram suffered disclosure statement under Section 27 of the Act and on the basis of the (Downloaded on 29/08/2019 at 10:37:48 PM) (39 of 48) [CRLA-613/2014] same vide Ex.P.43 one silver type ring and Rs. 12,500/- were recovered.
Appellant Heera Lal, alleged to be an employee of Balbha Ram, was arrested on 18.3.2011 vide Ex.P.12. On the basis of the disclosure statement Ex.P.111 suffered by appellant Heera Lal on 22.3.2011, one blood-stained shirt was taken in possession vide Ex. P.54.
Appellant Kailash Dhakan was arrested on 10.3.2011 vide Memo Ex. P.14. Vide Memo Ex .P.88, Agreement Ex. P.84 was taken in possession by the police on 16.3.2011.
Appellant Sikander was arrested on 10.3.2011 vide Ex.P.13. Recovery of 3 mobile phones, 6 Sim Cards, one wrist watch, one ring and Rs. 20,000/- were effected from his personal search. Vide Ex.P.51, one .12 bore live cartridge was recovered on the basis of disclosure statement suffered by him under Section 27 of the Act.
Appellant Madan Lal was arrested on 16.3.2011 and his arrest memo Ex.P.11 was prepared. On the basis of disclosure statement suffered by appellant Ex.P.108, one blood-stained T-shirt belonging to the appellant and some documents were taken in possession vide memo Ex.P.28. Vide Ex.P.44 Highway Express Card and some other documents were also recovered.
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(40 of 48) [CRLA-613/2014] On the basis of information given by appellants Madan Lal and Sikander jointly, route chart was prepared by Investigating Agency vide Ex.P.30 to Ex.P.37.
Appellant Shahjad was arrested on 23.3.2011 vide Ex.P.82. On the basis of disclosure statement suffered by appellant Shahjad Ex.P.114, on 27.3.2011, one mobile sim of Airtel Company was recovered and was taken in possession vide Ex.P.90. As per prosecution story, on the basis of disclosure statement suffered by appellant Shahjad Ex.P.116 on 29.3.2011, one pistol, two cartridges, one cheque book of the deceased were recovered and were taken in possession vide Memo Ex.P.41. As per the prosecution story, appellant Shahjad was using mobile phone Nos. 9782988968 and 9782998969.
Deceased was using the mobile phone No. 9414548995 in the name of Khiya Ram. P.W.1 Bhagchand was using mobile phone No. 9829119516. Appellant Madan Lal was using mobile phone No. 9602862293. Appellant Balbha Ram was using mobile phone No. 9166507474 but the same was switched off from 7.3.2011 onwards. Appellant Kailash Dhakan was using mobile phone No. 9610330850. P.W.2 Harjiram was using mobile phone No. 9829235017. P.W.4 Hanuman was using mobile phone No. 9829269339.
Bolero vehicle used at the time of occurrence was recovered on 10.3.2011 and it was inspected vide Memo (Downloaded on 29/08/2019 at 10:37:48 PM) (41 of 48) [CRLA-613/2014] Ex.P.15 and site plan of place of recovery of the Bolero, dead- body and clothes Ex.P.16 was prepared. Sketch of Bolero was prepared vide Memo Ex.P.15. Key of the Bolero was taken in possession vide Memo Ex.P.25 on 10.3.2011. Vide Ex.P.15 one cartridge, empty shell of cartridge and bullet were taken in possession on 10.3.2011 from Bolero. Vide Ex.P.19 spring of firearm and one piece of firearm were taken in possession from the Bolero on 10.3.2011. Vide Ex.P.18 two blood-stained axe were taken in possession on 10.3.2011 from the Bolero. Vide Ex.P.21 one blood-stained T-shirt and Jeans from the Bolero were taken in possession on 10.3.2011. Vide Ex.P.22 hair from T-shirt were lifted and were taken in possession on 10.3.2011.
Vide Ex.P.39 firearm and cartridges were recovered from a drain. One 12 bore double barrel gun and two live cartridges, one pistol were taken in possession.
Vide Ex.P.83 one abandoned un-numbered Jeep was taken in possession on 10.3.2011.
In the present case, complainant Bhagchand, while appearing in the witness box as P.W.1, has deposed that they had been called to Saini Dhaba by Kailash Dhakan on 9.3.2011. When they reached Saini Dhaba, Balbha Ram came there in a Bolero vehicle. Balbha Ram signaled Bhanwar Sinodiya to come towards his vehicle. Bhanwar Sinodiya went towards vehicle of Balbha Ram. Complainant had noticed that (Downloaded on 29/08/2019 at 10:37:48 PM) (42 of 48) [CRLA-613/2014] three persons were also sitting in the vehicle. He also deposed that Harji and Hanuman were asked to serve water to the occupants of Bolero by Bhanwar Sinodiya. The said witness had duly identified appellant Shahjad and Sikander in an identification parade conducted during investigation. He further deposed that Bhanwar Sinodiya sat in the Bolero vehicle and they started towards Mega Highway. They were supposed to follow the Bolero vehicle but by the time they reached the road, the Bolero vehicle had disappeared as it was being driven at a fast speed.
Thus, from the statement of P.W.1 it is evident that Bhanwar Sinodiya had been taken in a Bolero vehicle, which was un-numbered, by the appellants Bhabla Ram, Sikander and Shahjad. To this effect, statement of P.W.1 is duly corroborated by P.W.2 Harji, P.W.4 Hanuman.
So far as P.W. 3 Abdul Abdul Gaffar is concerned, he has also corroborated the statement of P.W.1 to the effect that Balbha Ram had called Bhanwar Sinodiya towards his vehicle and Bhanwar Sinodiya had sat in the Bolero vehicle and they had left towards Mega Highway. He has also corroborated the statement of P.W.1 to the effect that they had tried to follow the Bolero vehicle but could not do so as the Bolero vehicle had been driven at a fast speed and had disappeared.
Thus, from the statements of material witnesses, P.W.1, P.W.2, P.W.3 and P.W.4 it transpires that Bhanwar Sinodiya (Downloaded on 29/08/2019 at 10:37:48 PM) (43 of 48) [CRLA-613/2014] had been called to Sanin Dhaba by Kailash Dhakan, in view of their telephonic conversation. When Bhanwar Sinodiya reached Saini Dhaba alongwith P.W.1 and P.W.3, Bahbla Ram came there in an un-numbered Bolero vehicle. Appellants Shahjad and Sikander were also sitting in the vehicle. Then Bhanwar Sinodiya sat in Bolero vehicle after he was called by Balbha Ram. Then the Bolero vehicle left towards Mega Highway and could not be traced thereafter by P.W.1 and P.W.3. Although, statements of P.W.2 and P.W.4 were recorded after six days of the incident, but their presence at the spot is duly corroborated by P.W.1 Bhagchand and P.W.3 Abdul Abdul Gaffar.
Initially, it may not have been suspected by the complainant that Bhanwar Sinodiya had been taken by Balbha Ram and other accused with a view to commit his murder. It appears that initially complainant believed that Bhanwar Sinodiya had been abducted by appellant Balbha Ram and others. Due to this reason, FIR was lodged by not giving full details of the occurrence. The complainant had given full details of the incident in his statement under Section 161 Cr.P.C. Statements of P.W.1 to P.W.4 inspire confidence so far as involvement of appellants Balbha Ram, Sikander and Shahjad in the crime is concerned.
P.W.2 Harji Ram and P.W.4 Hanuman have deposed that Heera Lal was also present in Bolero vehicle. However, (Downloaded on 29/08/2019 at 10:37:48 PM) (44 of 48) [CRLA-613/2014] presence of appellant Heera Lal in Bolero vehicle is rendered doubtful as he could have been identified by P.W.1 Bhagchand also. P.W.1 Bhagchand and Balbha Ram were known to each other.
P.W.1 also deposed that appellant Madan, who was brother of appellant Balbha Ram, was also sitting in the Bolero. So far as the presence of appellant Madan in the Bolero is concerned, the same is rendered doubtful as the said appellant was known to P.W.1 but he had not mentioned the name of appellant Madan in the FIR lodged by him.
From the statements of P.W.1 and P.W.3 conspiracy between appellant Kailash Dhakan and appellant Balbha Ram to commit murder is duly established. It is also established that appellant Balbha Ram had taken away Bhanwar Sinoiya in Bolero vehicle alongwith appellants Sikander and Shahjad. P.W.50 Madna Ram was declared hostile. The said witness was examined to establish that the Bolero vehicle in question had been purchased by Balbha Ram. In his cross-examination by Public Prosecutor, he deposed that Balbha Ram was present when the payment was made at the time of purchase of the vehicle. The other witnesses with regard to purchase of Bolero vehicle by Balbha Ram had not supported the prosecution story. The fact that whether Bahbla Ram had purchased the vehicle or not loses its significance because from the statements of P.W.1 to P.W.4 it duly stands established that Bahbla Ram had come to Saini Dhaba in a Bolero vehicle and had taken away Bhanwar Sinodiya in the (Downloaded on 29/08/2019 at 10:37:48 PM) (45 of 48) [CRLA-613/2014] said vehicle. At that time appellant Balbha Ram was accompanied by appellant Shahjad and Sikander. Thereafter dead-body of Bhanwar Sinodiya was recovered from the Bolero.
All the material witnesses have deposed that the Bolero vehicle was of Henna colour, whereas, in the Forensic Science Laboratory Report Ex.P.97 colour of the Bolero vehicle has been mentioned as Grey. The said discrepancy cannot be said to be fatal to the prosecution story in view of the statements of material witnesses P.W.1 to P.W.4. Statements of P.W.1 to P.W.4 inspire confidence with regard to abduction of Bhanwar Sinodiya in Bolero vehicle by the accused in conspiracy with each other.
So far as the circumstance of call details has been brought on record by the prosecution is concerned, the same is not admissible in evidence as the said call details are not accompanied by certificate under Section 65-B of the Act in view of the decision of Hon'ble Supreme Court in Arjun Panditrao Khotkar (supra).
Another circumstance which is very relevant for decision of this case is that the dead-body of Bhanwar Sinodiya was recovered from the Bolero vehicle in which he had been taken away by the appellant Balbha Ram, Shahjad and Sikander. Bhanwar Sinodiya had died on account of fire arm injuries suffered by him. As per the prosecution witnesses, Bhanwar Sinodiya had been taken away by the accused on 9.3.2011 at about 12 noon. Dead-body was recovered on 10.3.2011 at about 4.30 p.m. Since the dead-body was recovered from the Bolero vehicle itself in which Bhanwar Sinodiya had been (Downloaded on 29/08/2019 at 10:37:48 PM) (46 of 48) [CRLA-613/2014] taken away by the accused, the time gap between the deceased having been last seen with the accused, loses its significance.
The next circumstance brought on record by the prosecution is that weapons were recovered from the Bolero vehicle. Some pieces of a firearm were also recovered from the Bolero vehicle. Some weapons were recovered from a water ditch. One weapon was recovered from the water ditch in a broken condition. The parts of the weapon recovered from the Bolero vehicle completed the broken firearm which was recovered from the water ditch. Pistol recovered at the instance of appellant Balbha Ram matched with the bullets recovered from the dead-body of the deceased. The said fact is evident from the report of the Forensic Science Laboratory Ex. P.98.
As per the prosecution case, there was some land dispute relating to purchase of land by appellant Kailash Dhakan from P.W.5 Jora Ram. A Dhaba had been constructed on the land, owned by the Government, by appellant Kailash Dhakan. In this regard Bhanwar Sinodiya was asked to mediate between the purchaser and the seller. It appears that due to this reason, some dispute occurred between accused Kailash Dhakan and the deceased. Hence, the appellant Kailash Dhakan in conspiracy with other accused got Bhanwar Sinodiya murdered.
In the present case, some lapses have been committed by the Investigating Agency as pointed by the counsel for the appellants but it is a settled proposition of law that any lapse committed by the Investigating Agency would not in itself be (Downloaded on 29/08/2019 at 10:37:48 PM) (47 of 48) [CRLA-613/2014] fatal to the prosecution case if it is established from other evidence on record. In the present case, involvement of appellants Kailash Dhakan, Balbha Ram, Shahjad and Sikander in the crime in question is duly established from the testimony of P.W.1 to P.W.4. Hence, the lapses committed by the Investigating Agency pointed by the counsel for the appellants are not fatal to the prosecution case.
So far as, appellant Shahjad is concerned, he had moved applications for grant of pardon and for treating him as an appover. However, the said applications were dismissed by the trial court vide orders dated 2.4.2013 and 15.5.2013. The said applications were opposed by the State and appellant Balbha Ram.
Thus, in the present case, the circumstances brought on record by the prosecution lead towards guilt of appellants Kailash Dhakan, Balbha Ram, Sikander and Shahjad and rule out the possibility of their innocence. So far as appellants Madan Lal and Heera Lal are concerned, the possibility that they might have been falsely involved in this case, with a view to over implicate the accused cannot be ruled out.
Accordingly, DB Criminal Appeal Nos. 613/2014 and 612/2014 are dismissed. Conviction and sentence of the appellants, as ordered by the trial court, are upheld.
D.B. Criminal Appeal No. 652/2014 is partly allowed. Appellants Madan Lal and Heeral Lal are acquitted of the charges framed against them. Impugned judgment/order of the trial court dated 11.4.2014 qua appellants Madan Lal and Heera Lal are set aside. Conviction and sentence as ordered by the trial court qua appellant Balbha Ram are upheld and (Downloaded on 29/08/2019 at 10:37:48 PM) (48 of 48) [CRLA-613/2014] appeal qua him is dismissed. Accused-appellants Madan Lal and Heera Lal, who are in custody, be set at liberty forthwith, if not required in any other case.
In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, accused-appellants namely; Madan Lal and Heera Lal are directed to furnish a personal bond in the sum of Rs.25,000/- each and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the accused-appellants Madan Lal and Heera Lal, on receipt of notice thereof, shall appear before the Supreme Court.
(GOVERDHAN BARDHAR),J (SABINA),J
MANGHA RAM GIDWANI /32
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