Delhi High Court
Pradeep Saini @ Anr. vs State on 9 September, 2009
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 7th August, 2009
Judgment Delivered On: 9th September, 2009
+ CRL.A. 172/2001
PRADEEP SAINI & ANR. ..... Appellants
Through: Mr. D.K.Sharma, Advocate
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J.
1. Appellants Pradeep Saini and Kishore Kumar faced trial for the charges of having trespassed into premises bearing Municipal No.B-1, 624, NIIT, Janak Puri, Delhi in the intervening night of 7th and 8th January 1997 after having made preparation for causing hurt to any person who would obstruct them form committing such trespass; committed robbery in the said premises and with the use of a knife murdered Kashi Crl.A.No.172/2001 Page 1 of 50 Nath Jha (herein after referred to as the "deceased") during the course of commission of robbery.
2. Vide impugned judgment and order dated 05.12.2000 the appellants have been held guilty of committing offences punishable under Sections 458/34, 392/397/34 and 302/34 IPC. Vide order dated 09.03.2001 they have been sentenced to undergo imprisonment for life for the offences punishable under Sections 302/34 and 392/397/34 IPC and RI for 5 years for the offence punishable under Section 458/34 IPC.
3. The case set up by the prosecution against the accused was that on 08.01.1997 at about 01.30 AM i.e. in the middle of the night Const.Ram Chander PW-3 and DHG Const.Rajesh Kumar PW-4, were patrolling on bicycles in the area around District Centre, Janak Puri, when they saw the accused walking on the road. They asked the accused to stop, upon which the accused started running. The aforesaid police officers chased the accused and apprehended them. After apprehending the accused, the said police officers noticed that the clothes of the accused were stained with blood and that they were carrying pithoo bags. The pithoo bags of the accused were checked and articles; namely, one full-sleeves white coloured blood stained vest, one full-sleeves yellow and off-white coloured shirt on which words MG-Mukesh were written and a green and black coloured label affixed thereon which was stained with Crl.A.No.172/2001 Page 2 of 50 huge quantity of blood, a blue coloured gas candle cylinder, one Eveready torch containing three Eveready cells, one small piece of black coloured georgette cloth, a perfume bottle on which the word „Charlie‟ was written and contained a liquid substance, one glass cutter on which words „Divine India‟ were written, one screw driver on which the word „Jumbo‟ was written, another small screw driver, one small white colored cello tape, one black colored sock, one nylon rope having 3 feet length, one white and black colored plastic wrist band and two pieces of georgette cloth were found therein. While the said police officers were conducting the personal search of the accused, accused Kishore Kumar took out an object from the pocket of his pant and threw the same in the nearby bushes. The object thrown by accused Kishore Kumar was a blood- stained knife.
4. Const Ram Chander PW-3, sent the aforesaid information through wireless to the police control room. HC Mukesh Kumar PW-23, Wireless Operator, recorded the aforesaid information in the wireless log and diary register Ex.PW-23/A.
5. It may be noted here that the relevant entry in the wireless log and diary register Ex.PW-23/A records that:
(Quote) 'Two persons who are possessing knives have been apprehended at some distance ahead of District Centre situated at Main Najafgarh Road. PCR van be sent. The clothes Crl.A.No.172/2001 Page 3 of 50 of the said persons are stained with blood and there are instruments in the bags of the said persons. Some officer be sent'.
6. HC Mukesh Kumar PW-23, transmitted the aforesaid information to Duty Officer HC Ramesh Kumar PW-2, who recorded DD Entry 17A Ex.PW-2/C; noting the said information at the police station Janak Puri.
7. On receiving a copy of the aforesaid DD entry Ex.PW-2/C, SI Sita Ram PW-16, accompanied by Const.Rajesh Kumar PW- 6, reached the place where the accused were apprehended. SI Sita Ram PW-16, recovered the knife thrown by accused Kishore Kumar and prepared the sketch Ex.PW-3/D thereof. The same records that the length of the knife was 23.1 cms; length of the blade was 11 cms and the length of the handle was 12.1 cms. The joint connecting the handle with the blade was having a brass button which was used to open and close the knife. The tip of the blade of the knife was bent. The said facts have been noted in the seizure memo of the knife.
8. It be noted here that the sketch Ex.PW-3/D of the knife bears the number of the FIR registered in the present case.
9. As per SI Sita Ram PW-16 the accused disclosed that they have wounded a security guard at NIIT centre situated at B-1/624, Janak Puri, New Delhi by using a knife and a wrench pipe and have also stolen the cash box lying at the said Crl.A.No.172/2001 Page 4 of 50 centre. They further disclosed that they have left the wrench pipe at the centre and hidden the cash box in the bushes nearby. Pursuant thereto, the aforesaid police officers; namely, SI Sita Ram PW-16, Const Rajesh Kumar PW-6, Const. Ram Chander PW-3 and DHG Const.Rajesh Kumar PW-4 and the accused proceeded to NIIT centre situated at B-1/624, Janak Puri, New Delhi where the deceased was found lying in a badly injured and unconscious condition in a room therein.
10. Leaving behind the accused persons in the custody of Const.Rajesh Kumar PW-3, DHG Const.Ram Chander PW-4 and Const.Rajesh Kumar PW-6, SI Sita Ram PW-16, removed the deceased to DDU Hospital where Dr.Rajesh Bhatt conducted the medical examination of the deceased and recorded the MLC No. 00182 Ex.PW-9/A of the deceased, declaring him to be unfit for giving a statement.
11. Since the deceased was unfit to give a statement and no eye-witness was found, SI Sita Ram made an endorsement Ex.PW-2/A on the DD entry Ex.PW-2/C at 04.00 A.M. on 08.01.1997. Thereafter he proceeded to police station Janak Puri where he handed over the said endorsement to HC Ramesh Kumar PW-2, for registration of an FIR. HC Ramesh Chand PW-2, recorded the FIR No.38/97 Ex.PW-2/B.
12. Pursuant thereto, SI Sita Ram returned to NIIT centre and prepared the rough site plan Ex.PW-4/DA of the centre. Crl.A.No.172/2001 Page 5 of 50 The articles recovered from the possession of the accused persons were seized vide memos Ex.PW-3/Q and Ex.PW-3/R. The clothes found in the bag recovered from the possession of accused Pradeep Saini were seized vide memo Ex.PW-3/P. The floor of the room in which the deceased was lying in an injured condition was found to be stained with blood and one wrench pipe was also found therein. Blood found in the said room was lifted and seized vide memo Ex.PW-3/F. Sample control earth was lifted and seized vide memo Ex.PW-3/H. Blood stained earth, wrench pipe and the knife recovered from the possession of accused Kishore Kumar were sealed and seized vide memo Ex.PW-3/J. SI Sita Ram prepared a sketch of the wrench pipe recovered from the centre; being Ex.PW-3/O. A bed sheet, cap, muffler and comb which were stained with blood were also recovered from the said room and the same were seized vide memo Ex.PW-3/E. One lock and two keys recovered from the centre were seized vide memo Ex.PW-3/N. The pieces of glass stained with blood were recovered from the centre were seized vide memo Ex.PW-3/G.
13. Thereafter SI Sita Ram recorded the disclosure statements Ex.PW-3/A and Ex.PW-3/B of accused Kishore Kumar and Pradeep Saini respectively, in the presence of Satpal Bhatia PW-1, the owner of the NIIT centre. In their respective disclosure statements it is recorded that the Crl.A.No.172/2001 Page 6 of 50 accused have injured the deceased and have stolen the cash box lying at the said centre. They have further stated that they can get recovered the cash box, a wrench pipe and a box of fevicol. Pursuant thereto, the accused persons led SI Sita Ram PW-16, Const.Ram Chander PW-3, Satpal Bhatia PW-13 and Satish Raina, accountant at NIIT centre, PW-1, to nearby bushes and vide pointing out memos Ex.PW-1/A and Ex.PW- 1/B got recovered a cash box. The said cash box was opened with the keys provided by Satish Raina PW-1, and a sum of Rs.62,930/- and 78 cross cheques were found therein. The cash box was seized vide memo Ex.PW-1/C. The sum of Rs.62,930/- and 78 cross cheques found in the cash box were seized vide memo Ex.PW-1/D. Thereafter the accused persons led the aforesaid persons to a DDA Park situated near District Centre, Janak Puri, New Delhi and vide pointing out memos PW-3/K and Ex.PW-3/L got recovered a box of fevicol.
14. A private photographer, Brij Narayan PW-7, was summoned who took 3 photographs, Ex.PW-3/A to Ex.PW-3/C, negatives whereof are Ex.PW-3/D to Ex.PW-3/F. SI Ravinder Singh, (Finger Print Expert) PW-19, from the Crime Team was summoned. Chance finger-prints were attempted to be lifted. Vide report Ex.PW-19/A, SI Ravinder Singh PW-19, opined that no chance prints could be lifted.
Crl.A.No.172/2001 Page 7 of 50
15. On the same date i.e. 08.01.1997 Const.Ram Chander PW-3, accompanied by HC Hari Prakash took the accused persons to DDU Hospital where the medical examination of the accused persons was conducted. MLC Mark X-1 of accused Kishore Kumar records that a superficial injury was found on his left finger. MLC Mark X-2 of accused Pradeep Saini records that no external injury was found on his person. The blood sample of the accused persons were handed over to the police at the hospital and the same was seized vide memo Ex.PW- 16/A.
16. On the same date i.e. 08.01.1997 the deceased succumbed to his injuries at DDU Hospital. On the next day i.e.09.01.1997 the body of the deceased was transferred to the mortuary at DDU Hospital where Dr.L.K.Barua PW-10, conducted the post-mortem and gave his report Ex.PW-10/A which records following injuries on the person of the deceased:-
"1. One depressed fracture on left fronto parietal area size 9 cm x 5 cm brain matter was coming out and wound borders abraded/lacerated.
2. Incised looking wounds left forehead 3 in nos. on left forehead size 3 cm x 1 cm to 4 cm x 0.5 cm in size area involvement 9 cm x 3 cm.
3. Seven stitched wounds in front and neck placed in different directions of lenth 9 cm x 10 cm involving an area of 18 cm x 10 cm.Crl.A.No.172/2001 Page 8 of 50
4. One CLW lateral aspect of right eye 1 cm x 1 cm
5. CLW over right eye brow size 2 cm x 1 cm
6. Stitched wounds on posterior aspect of right forearm size 5 cm in length
7. Swelling on right side of face with contusion
8. 13 numbers of surrounded scars in front of abdomen"
17. He further opined that the injuries found on the person of the deceased are ante-mortem in nature. That the injury found on the head of the deceased was caused by a blunt object and the injury found on the neck was caused by a sharp object. That the injuries found on the head and neck of the deceased were individually and collectively sufficient to cause death in the ordinary course of nature. That the cause of death of the deceased was shock associated with coma. That injury No. (1) found on the person of the deceased was caused by a blunt object whereas injuries Nos. (2), (3) and (4) were caused by a sharp object. The blood stained clothes, shoes and socks of the deceased and a blood sample on a gauze were handed over to Const.Amar Singh PW-22, who seized the same vide memo Ex.PW-14/DA.
18. On 13.01.1997 SI Sita Ram PW-16, obtained certain documents from Satish Raina PW-1, which record that accused Pradeep Saini was enrolled as a student at NIIT centre in Crl.A.No.172/2001 Page 9 of 50 question. The said documents were seized vide memo Ex.PW- 1/E. On 13.02.1997 the cash box recovered at the instance of the accused persons was sent to SI Avdesh Kumar PW-18, Finger Print Expert, for detection of chance prints. Chance prints were attempted to be lifted. Vide report Ex.PW-18/A, SI Avdesh Kumar PW-18, opined that no chance prints could be lifted. On 10.03.97 Const.Sonu Kaushik PW-20, prepared the site plan to scale Ex.PW-20/A of the NIIT centre in question, at the instance of SI Sita Ram.
19. On 24.03.1997 SI Sita Ram sent the wrench pipe recovered from the possession of accused Kishore Kumar and the knife recovered from the possession of accused Kishore Kumar to Dr.L.K.Barua PW-10, for opinion regarding weapon of offence. Vide opinion Ex.PW-10/F he opined that the injuries nos. (2), (3), (4), (5), (6) and (8) found on the person of the deceased are possible to have been caused by the knife recovered from the possession of accused Kishore Kumar whereas injury nos. (1) and (7) are possible to have been caused by the wrench pipe recovered from the possession of accused Kishore Kumar.
20. The seized materials namely, knife recovered from the possession of accused Kishore Kumar; wrench pipe, cap, muffler, comb, bed sheet, glass pieces and blood recovered from NIIT Centre; clothes, shoes, socks and blood sample of Crl.A.No.172/2001 Page 10 of 50 the deceased; cash box recovered at the instance of the accused persons and the clothes recovered from the possession of accused Pradeep Saini were sent to the FSL for a serological examination. Vide FSL reports PW-16/PX, it was opined that the blood group of the deceased was AB; that the knife, wrench pipe, muffler, bed sheet, cash box, clothes of the deceased and the clothes recovered from the possession of accused Pradeep Saini were found to be stained with human blood having group AB and that the cap, comb, shoes of the deceased were found to be stained with human blood, group whereof could not be determined.
21. Armed with the post-mortem report, the serological report, the various seizure memos a charge sheet was filed listing the various police officers associated with the investigation, Satpal Bhatia and Satish Raina as the witnesses.
22. HC Ramesh Chand PW-2, deposed that the DD Entry Ex.PW-2/C and the FIR Ex.PW-2/B were recorded by him. Brij Narayan PW-7, deposed that the photographs Ex.PW-7/A to Ex.PW-7/C were taken by him. Dr.A.Arora PW-11 and Dr.Srikant PW-12, deposed that the MLC Ex.PW-9/A bears the signatures of Dr.Rajesh Bhatt. SI Avdesh Kumar PW-18 and SI Ravinder Singh Yadav PW-19, deposed that the reports Ex.PW- 18/A and Ex.PW-19/A were prepared by them respectively. Const.Sonu Kaushik PW-20, deposed that on 10.03.1997 he Crl.A.No.172/2001 Page 11 of 50 prepared the site plan to scale Ex.PW-20/A at the instance of SI Sita Ram. Const.Amar Singh PW-22, deposed that he handed over the materials given to him by the doctor after conducting the post-mortem of the deceased to SI Sita Ram vide memo Ex.PW-14/DA. Durga Nand Jha PW-8, the husband of the sister of the deceased, deposed that the deceased was employed as a security guard at NIIT centre in question and that he identified the dead body of the deceased.
23. Dr.L.K.Barua PW-10, deposed that the post-mortem report Ex.PW-10/A and the opinion Ex.PW-10/F regarding the weapon of offence were prepared by him. The relevant portion of the testimony of the witness reads as under:-
"The inside wounds mentioned in my report were not likely to be caused if the tip of knife is bent.
Re-examination Q. In your chief examination you have stated that the inside woulds could be caused with knife Ex.P5 but in your cross you had stated that inside woulds could not be caused with knife Ex.P5 which has a bent tip.
A. It is correct that the inside wounds could be possible by this knife it may so happen after causing them injuries on the body of deceased the tip of the knife may been thrust against the hard object."
24. HC Ram Kumar, Malkhana Moharrar, PW-21, deposed that on 08.01.1997 SI Sita Ram PW-16, deposited 14 pullandas containing the case property at Malkhana and that he made Crl.A.No.172/2001 Page 12 of 50 11 entries in the Store-Room Register (Part I) Ex.PW-21/A in said regard. On 02.04.1997 SI Sita Ram collected 10 pullandas from him for depositing the same at FSL. The relevant portion of the testimony of the witness reads as under:-
".....All the entries are in my hand.........
xxxx On page No.5 Ex.PW-21/A portion C to C was written by munshi. Entry dt.2.4.97 is in my hand but difference in the handwriting is on account of the fact that as my index finger of right hand is not working properly because of injury sustained on falling down......I suffered that injury in Jan‟ 1997 and since them I am not able to write clearly......
Reexamination in chief by ld. APP Q. In your chief examination you had stated that all the entry were made by you in your handwriting but in your cross examination you had stated that munshis had also made the entry in their handwriting in the said entry? How it is. Clarify?
A. On page No.2 of Ex.PW21/A from portion X to X and on page No.5 portion C to C, the entries are not in my hand and rest of the entries of Ex.PW21/A are in my hand. I replied in affirmative in my examination in chief as I was referring to only fards.
I did not give in writing for appointment of MHCM on account of injury on my finger as SHO knew about it. I did not obtain any medical certificate or medical leave on account of said injury. I sustained injury on my index finger in the last days of Jan.‟97.
xxxx Jwahar Singh munshi was on duty in Jan. ‟97 and I can identify his handwriting. The entries at portion X to X on page 2 and at portion C to C on page 5 of 21/A were not made in my presence. The entry X to Crl.A.No.172/2001 Page 13 of 50 X on page 5 is in the hand of munshi Jawahar. The entry portion mark C to C on page 5 is not in the hand of that munshi. I cannot tell the name who wrote this entry......."
25. HC Mukesh Kumar PW-23, deposed that the entry pertaining to the incident in question in wireless log and diary register Ex.PW-23/A was recorded by him. On being cross- examined by the defence about the overwriting and difference of handwriting in the said register, the witness stated: (Quote) 'It is correct that there is overwriting at point A on Ex.PW23/A on the date of 8.....It is correct that writing portion mark A to A in Ex.PW23/A is in smaller letter compared to rest of the writing in this entry‟.
26. Gurwinder Singh PW-25 and Ram Singh PW-26 deposed that they were functioning as Ahlmads in the Court of the Metropolitan Magistrate in charge of PS Janak Puri in the year 1997 and that as per the record of the Court of the said Magistrate, no copy of FIR No.38/97 was available.
27. Satish Raina PW-1, accountant at NIIT centre, turned hostile and did not support the case of the prosecution. He denied having witnessed recovery of any article at the instance of the accused persons. He deposed that in the morning of 08.01.1997 he was summoned by Satpal Bhatia to come to NIIT centre pursuant to which he went there. Thereafter the police took him to the police station where the Crl.A.No.172/2001 Page 14 of 50 cash box of NIIT centre was lying. That he opened the said cash box and a sum of Rs.62,930/- and some cheques were found therein. On being cross-examined by the counsel for the prosecution, he admitted that the memos Ex.PW-1/A and Ex.PW-1/B bear his signatures. He refused to identify the accused.
28. Const. Ram Chander PW-3, deposed that on 08.01.1997 at about 01.30 AM, he along with DHG Const.Rajesh Kumar PW-4, was patrolling on a bicycle in the area around District Centre, Janak Puri, when they saw the accused walking on the road. They asked the accused to stop, upon which the accused started running. They chased the accused and apprehended them. The clothes of the accused were stained with blood and they were carrying pithoo bags. The pithoo bags of the accused were checked and the articles which were seized vide memos Ex.PW-3/Q and Ex.PW-3/R were recovered from their possession. While they were carrying personal search of the accused, accused Kishore Kumar took out an object from the pocket of his pant and threw the same in the nearby bushes. The object thrown by accused Kishore Kumar was a blood- stained knife. Thereafter he sent the aforesaid information through wireless to the police station pursuant to which SI Sita Ram accompanied by Const.Rajesh Kumar came to the place where the accused were apprehended. SI Sita Ram prepared Crl.A.No.172/2001 Page 15 of 50 the sketch of the knife recovered from the possession of accused Kishore Kumar and sealed the same. SI Sita Ram recorded the disclosure statements Ex.PW-3/A and Ex.PW-3/B of the accused. Thereafter SI Sita Ram went to NIIT centre leaving him, Const.Rajesh Kumar, DHG Const.Rajesh Kumar and the accused at the „spot‟. SI Sita Ram accompanied by Satpal Bhatia and Satish Raina returned to the spot after admitting the deceased to the hospital. The accused got recovered a cash box from the bushes near District Centre in his presence. The said cash box was opened at the police station with the keys provided by Satish Raina.
29. On being cross-examined by the learned APP as Const.Ram Chander did not depose as was desired by the prosecution, he stated that the disclosure statements of the accused were recorded after return of SI Sita Ram to the spot. That the disclosure statements of the accused were recorded in the presence of Satpal Bhatia. The cash box was opened at the place of its recovery. The memos Ex.PW-3/Q, Ex.PW-3/R, Ex.PW-3/P, Ex.PW-3/F, Ex.PW-3/G, Ex.PW-3/J, Ex.PW-3/O, Ex.PW-3/E, Ex.PW-3/N and Ex.PW-3/E were prepared by SI Sita Ram in his presence. A box of fevicol was recovered at the instance of the accused in his presence. He stated that he forgot to mention the facts pertaining to the preparation of the aforesaid memos and recovery of a box of fevicol at the Crl.A.No.172/2001 Page 16 of 50 instance of the accused in his examination-in-chief. On being questioned about his presence at the NIIT centre, he stated (Quote): „It is correct that on nishan dehi of the accused persons, we along with IO and accused persons went to NIIT computer center and saw the deceased in injured condition. It is correct that IO removed injured to DDU hospital while I with the accused persons remained at the spot. I did not say these facts earlier because of not properly understanding term 'spot' and as these facts were not specifically asked in this manner'.
30. On being cross-examined by the defence about the presence of blood on the clothes worn by the accused at the time of their apprehension, Const.Ram Chander stated that the clothes of the accused were stained with blood and that the said clothes were not seized by the police. On being cross- examined about the presence of DHG Const.Rajesh Kumar at NIIT centre, he stated that DHG Const.Rajesh Kumar went to NIIT centre on 08.01.1997. On being cross-examined about the place where the disclosure statements of the accused were recorded, he stated (Quote): 'I am not aware whether disclosure statement of the accused persons was recorded at the spot or after recovery.'
31. DHG Const.Rajesh Kumar PW-4, deposed that on 08. 01.1997 at about 01.30 AM he along with Const.Ram Chander PW-3, was patrolling on a bicycle in the area around District Crl.A.No.172/2001 Page 17 of 50 Centre, Janak Puri, when they saw the accused walking on the road. They asked the accused to stop upon which the accused started running. They chased the accused and apprehended them. The clothes of the accused were stained with blood and they were carrying pithoo bags. The pithoo bags of the accused were checked and the articles which were seized vide memos Ex.PW-3/Q and Ex.PW-3/R were recovered from their possession. While they were carrying personal search of the accused, accused Kishore Kumar took out an object from the pocket of his pant and threw the same in the nearby bushes. The object thrown by accused Kishore Kumar was a blood- stained knife. Thereafter Const.Ram Chander PW-3, sent the aforesaid information through wireless to the police station pursuant to which SI Sita Ram accompanied by Const.Rajesh Kumar came to the place where the accused were apprehended. SI Sita Ram took the accused to the police station and directed him to reach the police station. On 10.09.1998 the brother of accused Kishore Kumar came to his residence and requested him to change his statement which request was refused by him.
32. Since even Const.Rajesh Kumar did not fully support the case of the prosecution, he was declared hostile and was cross-examined by the learned APP. He admitted that he was present when the sketch of the knife was drawn but stated Crl.A.No.172/2001 Page 18 of 50 that this happened at the police station. On being cross- examined by the defence whether he saw any blood stains on the clothes of the accused Kishore Kumar, he stated that they were not stained with blood. He was re-examined by the learned APP. He denied that the accused were taken to the NIIT centre from the place they were apprehended. He denied having seen the deceased in an injured condition at the NIIT centre.
33. Const.Rajesh Kumar PW-6, deposed that he along with SI Sita Ram went to a place situated near District Centre, Janak Puri in the first week of January, 1997 where they saw that the accused had been apprehended by Const.Ram Chander PW-3 and DHG Rajesh Kumar PW-4. Const.Ram Chander handed over a blood stained knife to SI Sita Ram. The clothes worn by the accused were stained with blood. SI Sita Ram prepared the sketch of the knife handed over by Const.Ram Chander. Thereafter the accused disclosed that they have wounded a security guard at NIIT centre situated at B-1/624, Janak Puri, New Delhi by using a knife and a wrench pipe and have also stolen the cash box lying at the said centre. They further disclosed that they have left the wrench pipe at the centre and hidden the cash box in the nearby bushes. Pursuant thereto SI Sita Ram PW-16, Const.Ram Chander PW-3, DHG Const.Rajesh Kumar PW-4 and he along with the accused proceeded to NIIT Crl.A.No.172/2001 Page 19 of 50 centre situated at B-1/624, Janak Puri, New Delhi where they saw the deceased lying in a badly injured and unconscious condition in a room therein. Leaving behind him, Const.Rajesh Kumar PW-3, DHG Const.Ram Chander PW-4 and the accused, SI Sita Ram PW-16, removed the deceased to a hospital. A wrench pipe was recovered from NIIT centre. A cash box was recovered at the instance of the accused in his presence.
34. On being cross-examined by the defence about the seizure of the clothes worn by the accused at the time of their apprehension, he stated that the said clothes were seized at the police station. On being questioned about the presence of Satpal Bhatia and Suresh Raina at the time of the recording of the disclosure statements of the accused, he stated that Satpal Bhatia and Satish Raina were not present at the said time. On being questioned about the presence of DHG Const.Rajesh Kumar at NIIT centre, he stated that DHG Const.Rajesh Kumar accompanied them from the place where the accused were apprehended to the NIIT Centre.
35. Satpal Bhatia PW-13, who is the owner of the premises bearing Municipal No.B-1/624, Janak Puri, New Delhi, deposed that on 08.01.1997 at about 01.30 AM some policemen came to his residence and informed him that a crime has been committed in his premises and that they have apprehended two boys in connection with the said crime. The two boys were Crl.A.No.172/2001 Page 20 of 50 accompanying the policemen but he cannot identify them as it was dark. Thereafter he saw that the deceased was lying in a badly injured condition in a room of his premises and that the cash box which used to remain in the said room was missing. The policemen asked him to accompany them to the police station upon which he went to the police station. The accused were present in the police station and they disclosed to the police in his presence that they have hidden the cash box in the bushes near District Centre. Pursuant thereto, the accused got recovered a cash box from the bushes near the District Centre in his presence. The cash box recovered from the accused was opened at the police station with the keys provided by Satish Raina. The personal search of the accused was conducted at the police station and that he signed the memos Ex.PW-3/Q and Ex.PW-3/R in said regard. The memos Ex.PW-3/P, Ex.PW-3/F, Ex.PW-3/G, Ex.PW-3/J, Ex.PW-3/O, Ex.PW-3/E, Ex.PW-3/N and Ex.PW-3/E were prepared by the police in his presence.
36. Even Satpal Bhatia was declared hostile and was cross- examined by the learned APP. He denied the suggestion that a box of fevicol was recovered by the police at the instance of the accused in his presence and that Satish Raina was present at the time of the recovery of the cash box at the instance of the accused. He pleaded ignorance about the fact whether Crl.A.No.172/2001 Page 21 of 50 accused Pradeep Saini was enrolled as a student in NIIT centre run by him.
37. On being cross-examined by the defence about the preparation of the memos, he stated that all the memos were signed by him at the police station.
38. SI Sita Ram, PW-16, the Investigating Officer deposed that on 08.01.1997 at about 01.30 AM he along with Const.Rajesh Kumar PW-6, went to a place situated near District Centre, Janak Puri where they saw the accused in the custody of Const.Ram Chander PW-3 and DHG Rajesh Kumar PW-4. Const.Ram Chander handed over a blood stained knife to him. The accused were carrying pithu bags. He prepared the sketch of the knife handed over by Const.Ram Chander. Thereafter the accused disclosed that they have wounded a security guard at NIIT centre situated at B-1/624, Janak Puri, New Delhi by using a knife and a wrench pipe and have also stolen the cash box lying at the said centre. They further disclosed that they have left the wrench pipe at the centre and hidden the cash box in the nearby bushes. Pursuant thereto, he, Const.Rajesh Kumar PW-6, Const. Ram Chander PW-3 , DHG Const.Rajesh Kumar PW-4 and the accused proceeded to NIIT centre situated at B-1/624, Janak Puri, New Delhi where they found the deceased lying in a badly injured and unconscious condition in a room therein. Leaving behind the Crl.A.No.172/2001 Page 22 of 50 accused in the custody of Const.Rajesh Kumar PW-3, DHG Const.Ram Chander PW-4 and Const.Rajesh Kumar PW-6, he removed the deceased to DDU hospital. After having obtained the MLC of the deceased and after handing over the endorsement prepared by him to the duty officer at the police station for the purposes of registration of the FIR, he returned to the NIIT centre. The personal search of the accused was conducted thereafter and the memos Ex.PW-3/Q and Ex.PW- 3/R were prepared in the said regard. The disclosure statements Ex.PW-3/A and Ex.PW-3/B were recorded by him pursuant to which the accused got recovered a cash box and a box of fevicol in the presence of Satpal Bhatia PW-13, and Satish Raina PW-1. The cash box recovered at the instance of the accused was opened with the keys provided by Satish Raina and a sum of Rs.62,930/- and 78 crossed cheques were found therein. He sent the accused with Const.Ram Chander and Hari Prakash to DDU Hospital for being medically examined. He returned to the NIIT centre and seized the articles found therein vide vide memos Ex.PW-3/P, Ex.PW-3/F, Ex.PW-3/G, Ex.PW-3/J, Ex.PW-3/O, Ex.PW-3/E, Ex.PW-3/N and Ex.PW-3/E. The case property seized by him till 08.01.1997 was deposited by him at Malkhana on the same day itself. On 02.04.1997 he collected 12 pullandas containing the case property of the present case from Malkhana for the purposes Crl.A.No.172/2001 Page 23 of 50 of depositing the same at FSL and that 2 pullandas out of 12 pullandas were returned by the FSL.
39. On being questioned whether the copy of the FIR registered in the present case was sent to the Ilaqa Magistrate as required by the mandate of Section 157 Cr.P.C., he stated :(Quote) 'It is for the DO to send the copy of FIR to higher officers. I did not record statement of DO reg. sending of that information to higher officers Vol. It is already mentioned in FIR recorded by me. I do not recollect if information was actually sent to the higher officer or not. I did not record statement of anyone who took copy of the FIR to higher officer. I have not kept on record of this case the copy received by MM. It is correct that statement of special report messenger is required to be recorded. It is incorrect that I did not record statement of special report messenger in this case as no such special report was sent to higher officials'. On being questioned about the presence of blood on the clothes worn by the accused at the time of their apprehension, he stated that the clothes of the accused were not stained with blood. On being questioned as to where the personal search of the accused was conducted he stated that a casual search of the accused was conducted at the place they were apprehended and that the formal search of the accused was Crl.A.No.172/2001 Page 24 of 50 conducted at NIIT centre in the presence of Satpal Bhatia PW-
1.
40. Inspector Surender Kumar PW-17, deposed that on receipt of the information about the incident in question he went to NIIT centre situated at B-1/624, Janak Puri, New Delhi at 04.30 AM on 08.01.1997. He saw a cap, a wrench pipe, a muffler, a bed sheet lying at the said premises. He further saw that the aforesaid articles were stained with blood.
41. On being cross-examined by the defence about the presence of the police officers at the centre in question, he stated that SI Sita Ram PW-16, Const.Ram Chander PW-3, Const.Rajesh Kumar PW-6 and DHG Const.Rajesh Kumar were found present by him at the centre.
42. In their respective examinations under Section 313 CrPC, the accused denied everything and pleaded false implication. The defence raised by the accused was that on 07.01.1997 the maternal grandmother of accused Kishore Kumar had expired. On the same day, accused Kishore Kumar along with his mother went to a railway station to drop his mother who was to board a train for going to the place of residence of the maternal grandmother of accused Kishore Kumar. While accused Kishore Kumar was returning from the railway station he was apprehended by 3-4 policemen at Uttam Nagar, New Delhi. The said policemen forcibly took accused Kishore Kumar Crl.A.No.172/2001 Page 25 of 50 to the police station and asked him to reveal the name and residential address of any of his acquaintance. Accused Kishore Kumar told them the name and address of accused Pradeep Saini who was his friend. On the next day the said policemen took accused Kishore Kumar to the residence of accused Pradeep Saini. On reaching the residence of accused Pradeep Saini, accused Kishore Kumar called accused Pradeep Saini and told him to accompany him to outside his house. When the accused persons reached the corner of the street where the residence of accused Pradeep Saini was situated, some policemen forcibly made them sit in a gypsy and falsely implicated them in the present case.
43. In support of their defence, the accused persons examined 4 witnesses.
44. Om Parkash DW-1, the father of accused Pradeep Saini, deposed that on 08.01.1997 at about 07.00-07.30 AM accused Kishore Kumar along with another person whom he does not know came to his residence and told him that he wants to meet his son. He awoke his son and told him that his friend had come to meet him. He went to bring water and they started talking to each other. After sometime they went outside. He saw his son, Kishore Kumar and the third person sit in a gypsy. When his son did not return till afternoon he went to the police station where the SHO told him that his son Crl.A.No.172/2001 Page 26 of 50 is being interrogated and that he would be let off after sometime. When his son was not let off till 4 PM in the evening he again made enquiries upon which he was told that his son is sitting in the police station and would be let off after sometime. When his son was not let off till 6 PM he again made enquiries upon which he was told that SHO has taken his son to some flat and that he would be let off from there. When he again made enquiries at about 9.00 PM in the night he was told that his son has been lodged in a prison and that he should get him released from the court. His son has been falsely implicated in the present case. On being cross- examined by the learned APP regarding the action taken by him against the police, he stated that he did not take any action against the police as the police officers had assured him that they would leave his son.
45. Nirmala DW-2, the mother of accused Kishore Kumar, deposed that on 07.01.1997 at about 8.00-9.00 P.M. she received a telephonic call informing her about the death of her mother Devi Bai who used to reside at village Giddpuri, Nainital. Her son dropped her at the railway station from where she boarded a train to go to village Giddpuri. When she returned from village Giddpuri after three days she came to know that her son was apprehended by the police at about 05.00 AM on 08.01.1997. Her son told her that he was Crl.A.No.172/2001 Page 27 of 50 apprehended by the police when he was returning to his house from the railway station. She produced a document Ex.DW-2/A which records that one Devi Bai died on 07.01.1997 at village Giddpuri.
46. Yashpal Singh DW-3, Warden, Tihar Jail, deposed regarding the lodging of the accused persons in Tihar jail on 08.01.1997. S.K. Gupta DW-4, Metropolitan Magistrate, deposed that on 08.01.1997 he remanded the accused persons to Judicial Custody till 22.01.1997.
47. After considering the case in its entirety, the learned Trial Judge has held that the testimonies of Const.Ram Chander PW-3 and DHG Const.Rajesh Kumar PW-4, establish that a knife and wrench pipe was recovered from the possession of the accused persons and that the testimony of Satpal Bhatia PW-13, establish that a cash box which used to remain at NIIT centre in question was recovered at the instance of the accused. The learned Trial Judge has concluded that the facts that a knife and wrench pipe were recovered from the possession of the accused; that the injuries found on the person of the deceased were possible to have caused by the said knife and wrench pipe and that a cash box was recovered at the instance of the accused are sufficient to bring home the guilt of the accused and has thus convicted the accused. The learned Trial Judge has rejected Crl.A.No.172/2001 Page 28 of 50 the testimony of the witnesses examined by the defence; namely, Om Parkash DW-1 and Nirmala DW-2 on the ground that they are „unreliable witnesses‟. However, no reason has been given by the learned Trial Judge in reaching the said conclusion.
48. During the hearing of the present appeal, since we were intrigued by the fact that as to why should the accused not carry the cash box allegedly looted by them and instead hide the same in the bushes, vide order dated 20.07.2009, we called for the cash box purportedly recovered at the instance of the accused. The cash box in question was produced in Court. It was having dimensions 15" X 9.5" x 10" and was weighing 23 kgs. It appears that those who stole the cash box could not easily cart away the same and hence hid it in the bushes nearby.
49. Before proceeding to consider the merits of the present appeal, we would like to point out two fallacies committed by the learned Trial Judge in the impugned judgment.
50. As already noted herein above, the learned Trial Judge has summarily rejected the evidence of the witnesses of the defence. This approach of the learned Trial Judge is clearly erroneous. The evidence tendered by the defence witnesses cannot always be termed to be tainted by reason of the factum of the witnesses being examined by the defence. The Crl.A.No.172/2001 Page 29 of 50 defence witnesses are entitled to equal treatment and equal respect as that of the prosecution and ought not to be rejected in a casual manner. The issue of credibility and the trustworthiness of the defence witnesses ought also to be attributed at par with those of the prosecution. Of course, the testimony of defence witnesses which are in the nature of bald statements and especially where the witnesses are related to the accused have to be subjected to great scrutiny as the possibility of said witnesses deposing to save their near and dear ones is very high. But, on said ground alone, i.e. nearness of relationship the evidence cannot be thrown out. Where the prosecution case is found to be without any blemish, the defence evidence would obviously be tainted and this should be the reason to discard the defence evidence. Not on mere relationship alone.
51. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof has to be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed. Crl.A.No.172/2001 Page 30 of 50 As observed by Supreme Court in the decision reported as Dudh Nath Pandey v State of UP AIR 1981 SC 911:-
"....Defence witnesses are entitled to equal treatment with those of the prosecution; and courts ought to overcome their traditional instinctive disbelief in defence witnesses......"
52. The second fallacy committed by the learned Trial Judge is that in para 22 of the impugned judgment it has been held that the wrench pipe was recovered from the possession of the accused. A perusal of the facts narrated above clearly shows that the wrench pipe was not recovered from the possession of the accused. The correct position is that, as per the prosecution, the wrench pipe was found pursuant to the information provided by the accused.
53. The case in hand is based on circumstantial evidence. There is no direct evidence to prove the complicity of the accused in the crime with which they were charged. The circumstances sought to be used by the prosecution to prove the guilt of the accused can be enumerated as under:-
I Recovery of the clothes which were found to be stained with the blood group of the deceased from the possession of accused Pradeep Saini.
II Recovery of the knife which was found to be stained with the blood group of the deceased from the possession of accused Kishore Kumar.Crl.A.No.172/2001 Page 31 of 50
III Recovery of the injured body of the deceased pursuant to the information provided by the accused as per their disclosure statements.
IV Recovery of wrench pipe which was found to be stained with blood group of the deceased pursuant to the disclosure statement of the accused.
V Recovery of the cash box which was found missing at NIIT centre at the instance of the accused.
VI Recovery of a box of fevicol at the instance of the accused.
VII Presence of an injury on the finger of accused Kishore Kumar.
54. The well known principles governing circumstantial evidence are that :- (a) the circumstances from which the inference of guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances; (b) the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; (c) the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him and (d) a conviction can be based on circumstantial evidence if it is of such a character that the same is wholly inconsistent with the Crl.A.No.172/2001 Page 32 of 50 innocence of the accused and is consistent only with his guilt. The incriminating circumstances that are being used against the accused must be such as to lead only to a hypothesis to reasonably exclude every possibility of his innocence.
55. As is apparent from the facts narrated above, the case set up by the prosecution against the accused depends wholly upon the testimonies of the police officers who were associated with the investigation of the present case as also the testimony of Satpal Bhatia PW-13 and Satish Raina PW-1. As noted above PW-1 has not supported the case of the prosecution.
56. What should be the approach of the court while appreciating ocular evidence of a police officer? The answer to the question lies in the following observations made by Supreme Court in the decision reported as Kalpnath Rai v. State (1997) 8 SCC 732:
"As a legal proposition it was argued that it would be unsafe to base a conclusion on the evidence of police officers alone without being supported by at least one independent person from the locality. To reinforce the said contention Shri V.S. Kotwal, Senior Advocate cited the decision of this Court in Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra (1995) 4 SCC 255 wherein want of independent witnesses of the locality rendered suspicious a raid conducted by the police.Crl.A.No.172/2001 Page 33 of 50
There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-
examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined. In Pradeep Narain Madgaonkar (supra) to which one of us (Mukherjee, J) is a party, the aforesaid position has been stated in unambiguous terms, the relevant portion of which is extracted below:
Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation; requires greater care to appreciate their testimony." (Emphasis Supplied)
57. In the backdrop of the afore-noted legal principles, we shall examine the case set up by the prosecution against the accused.
58. At the outset, we reject circumstances VI and VII noted in para 53 above.
59. It is settled legal position that the connection between the object recovered and the offence with which an offence is charged must always be established by evidence „alinude‟. In Crl.A.No.172/2001 Page 34 of 50 the instant case, there is no evidence to show that the fevicol was used by the accused persons in commission of the crime with which they were charged.
60. As already noted herein above, MLC Mark - X1 of accused Kishore Kumar records that an injury was found on his finger. Nothing much turns on the said fact inasmuch as prosecution failed to prove the said MLC. It may also be noted here that SI Sita Ram PW-16, deposed that Const.Ram Chander PW-3, took the accused persons to DDU hospital for being medically examined whereas Const.Ram Chander has not deposed a word about the said fact in his testimony. The MLC has remained unproved and hence not an exhibited document but only a marked document.
61. The entry pertaining to the incident in question in wireless log and diary register Ex.PW-21/A which was recorded on the basis of the information provided by Const.Ram Chander PW-3, records that the clothes of the persons who were apprehended by Const.Ram Chander PW-3 and DHG Rajesh Kumar PW-4, were stained with blood. The evidence of the witnesses of the prosecution namely, Const.Ram Chander PW-3, DHG Const.Rajesh Kumar PW-4, Const.Rajesh Kumar PW-6 and SI Sita Ram PW-16, is most ipsi-dixit on the point of the presence of the blood on the clothes worn by the accused at the time of their apprehension. Whereas Const.Ram Crl.A.No.172/2001 Page 35 of 50 Chander PW-3 and Const.Rajesh Kumar PW-6, have deposed that the clothes worn by the accused at the time of their apprehension were stained with blood, SI Sita Ram PW-16 deposed that the clothes of the accused were not stained with blood. DHG Const.Rajesh Kumar PW-4, deposed in his examination in chief that the clothes worn by the accused at the time of their apprehension were stained with blood but in his cross-examination he stated that the clothes of accused Kishore Kumar were not stained with blood. Likewise, there is contradiction in the evidence of the said witnesses on the point of seizure of clothes worn by the accused at the time of their apprehension. Whereas Const.Ram Chander PW-3, has deposed that the clothes worn by the accused at the time of their apprehension were not seized, Const.Rajesh Kumar PW- 6, has deposed that the clothes worn by the accused were seized at the police station.
62. There is no evidence to show that the clothes worn by the accused at the time of their apprehension were seized by the police. Had the clothes worn by the accused at the time of their apprehension were stained with blood as recorded in the wireless log and diary register Ex.PW-21/A, the police would have surely seized them.
63. There is yet another fallacy in the case of the prosecution pertaining to the clothes worn by the accused at Crl.A.No.172/2001 Page 36 of 50 the time of their apprehension. As per the prosecution, blood stained clothes were found in the pithoo bag of accused Pradeep Saini. Assuming that the clothes worn by the accused at the time of their apprehension were stained with blood, it implies that the accused did not change the clothes worn by them at the time of commission of the crime. In such a case, the question which arises is that, if accused Pradeep Saini did not change the clothes worn by him at the time of commission of the crime, then where was the occasion of recovery of blood stained clothes from his bag.
64. The afore-noted circumstances very strongly indicate that the clothes worn by the accused at the time of their apprehension were not stained with blood, which in turn raises serious doubt on the fact whether the accused were the persons who were apprehended by Const.Ram Chander PW-3 and DHG Rajesh Kumar PW-4 near District Centre, Janak Puri.
65. So different at the versions given by the police officers that one is left wondering whether the clothes allegedly recovered from the pithoo bag were the ones which were stained with blood or the clothes worn by the accused were stained with blood and were hence seized. As would be evident from a possibility which is likely to have happened, something would turn on this and we shall be discussing it a little later.
Crl.A.No.172/2001 Page 37 of 50
66. In the instant case, save and except a bald statement of HC Ramesh Chand PW-2, the scribe of the FIR Ex.PW-2/B, that he sent a copy of the FIR registered in the present case to Ilaqa Magistrate through Const.A.K.Babu, there is no evidence to show that the copy of the FIR Ex.PW-2/B was sent to the Ilaqa Magistrate. On the contrary, the depositions of SI Sita Ram PW-16, that he has no knowledge whether the copy of the FIR Ex.PW-2/B was sent to the Ilaqa Magistrate and that he did not record the statement of the police official who delivered the copy of the FIR Ex.PW-2/B being sent to the Ilaqa Magistrate, coupled with the fact that a copy of the FIR Ex.PW- 2/B was not available in the record of the court of the concerned Magistrate strongly shows that the copy of the FIR Ex.PW-2/B was not sent to the Ilaqa Magistrate as required by Section 157 Cr.P.C.
67. Section 157(1) Cr.P.C. requires the FIR/special report to be sent „forthwith‟ to the Magistrate competent to take cognizance of the offence. The forwarding of the FIR/special report is indispensable, absolute and it has to be forwarded at the earliest which intention is implicit in the use of the word „forthwith‟. It has dual purpose: firstly to avoid the possibility of improvement in the prosecution story and the introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch Crl.A.No.172/2001 Page 38 of 50 on the progress of investigation. Failure on the part of the police to comply with Section 157(1) Cr.P.C. would lead to a grave suspicion that the police was concocting false evidence. Quite often there is a valid reason for non-compliance of Section 157(1) CrPC and it is not always a circumstance on the basis of which the entire prosecution may be said to be fabricated, but it all depends on the facts and circumstances of each case. In some cases non-compliance may lead to serious consequences.
68. What is the effect of non-compliance of Section 157(1) Cr.P.C. in the present case? In this regard, it is most important to note the entry pertaining to the instant case recorded in wireless log and diary register Ex.PW-21/A, which entry has set the criminal law in motion in the present case. HC Ram Kumar PW-21, scribe of the said entry, has admitted that there is an overwriting in the date 08.01.1997 written in the said entry as also difference in the handwriting contained in the said entry. The witness has not been able to explain the said discrepancies occurring in the entry recorded in wireless log and diary register Ex.PW-21/A. It is also most important to note the defence of the accused that they were forcibly lifted by the police.
69. The facts that there is manipulation in the document that has set the criminal law in motion in the present case and that Crl.A.No.172/2001 Page 39 of 50 copy of the FIR registered in the present case was not sent to the Ilaqa Magistrate, when analyzed in the light of the defence of the accused leads to the strong inference that the FIR Ex.PW-2/B was manipulated by the police. In any case the possibility of it having been so manipulated cannot be ruled out.
70. Another circumstance which needs to be highlighted is that as per the case of the prosecution the sketch Ex.PW-3/D of the knife purportedly recovered from the possession of accused Kishore Kumar was prepared before the registration of the FIR Ex.PW-2/B. Surprisingly, sketch Ex.PW-3/D of the knife contains the number of the FIR registered in the present case. The prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR Ex.PW-2/B has appeared on the document, which was allegedly prepared before registration of the FIR. This gives rise to two inferences; either the FIR Ex. PW-2/B was recorded prior to the alleged recovery of the knife or number of the said FIR was inserted in said document after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the knife in the manner alleged by the prosecution.
Crl.A.No.172/2001 Page 40 of 50
71. An analysis of the testimonies of the police officers who were associated with the investigation of the present case; namely Const.Ram Chander PW-3, DHG Rajesh Kumar PW-4, Const.Rajesh Kumar PW-6 and SI Sita Ram PW-16, and Satpal Bhatia PW-13, shows that there are serious discrepancies in their testimonies which raise a big question mark on the truthfulness of the evidence given by them. The discrepancies in the testimonies of the said witnesses are as under:-
A. Const.Ram Chander PW-3, in his examination-in-chief did not depose a word about the seizure memos prepared by SI Sita Ram PW-16, at NIIT centre. The explanation given by him for said omission that he forgot to mention the facts pertaining to the said seizure memos does not inspire confidence.
B. Const.Ram Chander PW-3, deposed in his examination-in-
chief that the cash box recovered at the instance of the accused persons was opened at the police station whereas in his cross-examination he stated that the same was opened at the place of its recovery.
C. Const.Ram Chander PW-3, in his examination in chief claimed to have witnessed the recording of the disclosure statements by SI Sita Ram however in his cross-examination he stated that he is not aware about the place of the recording of the disclosure statements of the accused persons.Crl.A.No.172/2001 Page 41 of 50
D. DHG Rajesh Kumar PW-4, deposed that the accused were taken to the police station from the place of their apprehension; that the accused were not taken to NIIT centre and that he did not go to the NIIT centre, which testimony is in complete contradiction to the testimony of Const.Ram Chander PW-3, Const.Rajesh Kumar PW-6 and SI Sita Ram PW-16, that the accused were taken to NIIT centre from the place of their apprehension and that DHG Const.Rajesh Kumar was present at NIIT centre at the time when investigation of the present case was conducted there.
E. DHG Rajesh Kumar PW-4, deposed that the sketch of the knife was prepared at the police station whereas as per the witnesses; Const.Ram Chander PW-3, Const.Rajesh Kumar PW-
6 and SI Sita Ram PW-16, the same was prepared at the place of apprehension of the accused.
F. Const.Rajesh Kumar PW-6, deposed that Satpal Bhatia was not present at the time of the recording of the disclosure statements of the accused persons whereas Const.Ram Chander PW-3 and SI Sita Ram PW-16, deposed to the contrary.
G. Satpal Bhatia PW-13, deposed that he along with the police officers went to the police station from NIIT centre and thereafter to the place of recovery of the cash box whereas as per the witnesses; Const.Ram Chander PW-3, Const.Rajesh Crl.A.No.172/2001 Page 42 of 50 Kumar PW-6 and SI Sita Ram PW-16, they along with Satpal Bhatia proceeded straight to the place of recovery of cash box from NIIT centre.
H. Satpal Bhatia PW-13, deposed that the cash box recovered at the instance of the accused persons was opened at the police station whereas as per Const.Ram Chander PW-3 and SI Sita Ram PW-16, the same was opened at place of its recovery.
I. Satpal Bhatia PW-13, deposed that the personal search of the accused persons was conducted at the police station whereas as per SI Sita Ram PW-16, the same was conducted at NIIT centre.
J. Satpal Bhatia PW-13, deposed that no box of fevicol was recovered at the instance of the accused persons in his presence whereas SI Sita Ram PW-16, deposed to the contrary. K. Satpal Bhatia PW-13, deposed that Satish Raina was not present at the time of recovery of cash box at the instance of the accused persons whereas Const.Ram Chander PW-3 and SI Sita Ram PW-16, deposed to the contrary.
L. Inspector Surender Kumar PW-17, deposed that he went to NIIT centre on 08.01.1997 however, none of the other police officers have deposed a word about his presence at NIIT centre on 08.01.1997 or the role played by him in the investigation in the present case.
Crl.A.No.172/2001 Page 43 of 50
72. Another circumstance which is worth noticing is that there is a delay of three months in sending the case property to the FSL. The fact that case property was sent to the FSL very late, is not always fatal to a case. In a given case it may be fatal and in a given case it may not be fatal. (See the decision of Division Bench of this Court in Criminal Appeal No.726/2005 titled as 'Ahmed Ali Sardar vs. State' decided on 06.04.2009)
73. In said regard, it is most important to note the testimony of HC Ram Kumar, PW-21, Malkhana Moharrar. As already noted herein above, he deposed in his examination-in-chief that all the entries pertaining to the case property in Malkhana Register Ex.PW-21/A were made by him. On being confronted with two entries made in the said register in his cross- examination, he stated that the said two entries were made by his Munshi. However, he further stated in his cross- examination that one of the said two entries is not in the handwriting of his Munshi and that he does not know who has recorded the said entry. It is also significant to note that HC Ram Kumar PW-21, deposed that on 02.04.1997 he handed over 10 pullandas to SI Sita Ram PW-16, for the purposes of depositing the same at FSL whereas SI Sita Ram PW-16, deposed that he collected 12 pullandas from FSL on 02.04.1997. It is further significant to note that SI Sita Ram Crl.A.No.172/2001 Page 44 of 50 PW-16, deposed that two out of 12 pullandas sought to be deposited by him at FSL were rejected by the FSL.
74. In view of the facts noted in para 73 above, the delay of three months in sending the case property to FSL casts serious suspicion on the genuineness of the materials which were sent to FSL for serological examination.
75. It is also significant to note the deposition of Dr.L.K.Barua PW-10, that the injuries found on the person of the deceased could not have been caused by the knife having a bent tip. The aforesaid deposition has cast some doubt on the fact that whether the knife purportedly recovered at the instance of accused Kishore Kumar was used to inflict the injuries found on the person of the deceased inasmuch as the tip of the said knife was bent.
76. As is apparent from the facts narrated above, cash box purportedly recovered at the instance of the accused was recovered pursuant to the disclosure statements made by both the accused.
77. The legal position pertaining to joint disclosure statements was discussed by Supreme Court in the decision reported as State v Navjot Sandhu AIR 2005 SC 3820 in following terms:-
"Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to Crl.A.No.172/2001 Page 45 of 50 the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information Crl.A.No.172/2001 Page 46 of 50 is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these preparatory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel." (Emphasis Supplied)
78. From the afore-noted observations, it is clear that in order to place reliance upon a recovery made pursuant to a joint disclosure statement it is important the witness to the recovery in question should state about the words spoken by the accused in their disclosure statements and the sequence in which they pointed out the object which was recovered.
79. In the instant case, none of the witness to the recovery of cash box have stated as to what were the words spoken by the accused at the time when they got recovered the cash box or the sequence in which the accused pointed out the cash box in question. In such circumstances, no credence can be Crl.A.No.172/2001 Page 47 of 50 placed on the evidence pertaining to purported recovery of cash box at the instance of the accused.
80. As per the prosecution the owner of the NIIT centre where the crime took place namely Satpal Bhatia PW-13 was summoned after the accused had already made a disclosure statement and pursuant thereto had led the police officers to the place of the crime. How is it that Satpal Bhatia PW-13 is a witness to the disclosure statement? Satpal Bhatia PW-13 has given the answer. He states that the disclosure statement of the accused was recorded in his presence in the police station. He speaks to be speaking the truth for indeed his signatures as a witness are to be found on the disclosure statements.
81. Thus, everything pertaining to the disclosure statements made by the accused becomes highly tainted inasmuch as Satpal Bhatia could not have been summoned by the investigating officer unless the police knew that a crime had been committed in his building and if the accused were the criminals, the said fact would have come in the knowledge of the police only after the accused disclosed the same. But, this has not happened. It probablizes that two boys were caught by the police and told of the crime committed by them, but managed to give a slip to Const.Ram Chander and Const.Rajesh Kumar who were on patrol duty or may be to SI Crl.A.No.172/2001 Page 48 of 50 Sita Ram. It would have been embarrassing for the police to have solved a crime without criminals in their hands. The appellants became the scapegoat. Kishore Kumar became the first victim as he was returning to his house from the railway station after leaving his mother who boarded a train to go to her village as her mother had expired. Another accused was needed. Pradeep Saini, a friend of Kishore Kumar was conveniently roped in. This explains the police recovering the injured chowkidar from the NIIT centre and getting him admitted at the hospital.
82. Though in a different context, but the principle of law laid down in the decision reported as AIR 1979 SC 1408 Suraj Mal vs. The State (Delhi Administration), may be noted. Where substantial evidence of the prosecution is found to be tainted or is not reliable, few incriminating pieces of evidence have to be treated with doubt.
83. The appellants would thus be entitled to a benefit of doubt.
84. The appeal is allowed. Impugned judgment and order dated 5.12.2000 is set aside. The appellants are acquitted of the charge framed against them. The appellants are on bail Crl.A.No.172/2001 Page 49 of 50 the bail bond and surety bonds furnished by the appellants are discharged.
(PRADEEP NANDRAJOG) JUDGE (INDERMEET KAUR) JUDGE September 09, 2009 mm/dk Crl.A.No.172/2001 Page 50 of 50