Delhi District Court
Reliance On State Of Haryana vs . Jagbir Singh And Anr. 2003 Viii Ad on 25 April, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 99/2006
Date of Decision: 25/04/2007
State
Versus
1. Ram Kumar
S/o Sh. Abhey Ram
R/o Village Silana,
Distt. Sonepat, Haryana.
2. Kanwar Bhan @Fauzi
S/o Sh. Om Prakash
R/o Village Khera Kalan,
Delhi
3. Sandeep Kumar
S/o Sh. Kali Ram
R/o Village- Jagsi, Sonepat (Haryana)
FIR No. 435/1996
PS Narela
U/s. 302, 364 read with section 34 IPC and 201 IPC
JUDGMENT
First the Facts Ram Kumar, Kanwar Bhan and Sandeep Kumar accused have been facing trial for offences u/s 302, 364 read with section 34 IPC and 201 IPC. Accusation levelled against them is that on 06/10/1996 at about 4 p.m. in the area of Village Khera Khurd, P.S. Narela, all of them -2- in furtherance of their common intention abducted Hari Ram S/o Bhim Singh with intent to murder him and thereafter did commit his murder and threw the dead body in a canal so as to screen themselves from legal punishment.
On 09/10/1996, Bhim Singh S/o Lekh Ram, lodged missing report with P.S. Narela to the effect that on 06/10/1996 at about 4 a.m., his son Hari Ram (since deceased) was not traceable despite search. Bhim Singh gave description of his son Hari Ram in that missing report. However, he did not raise any suspicion against anyone. It was, thereafter, on 06/10/1996 that Bhim Singh made statement before the police of P.S. Narela that he could not succeed in tracing out his son. In his statement, Hari Ram raised suspicion against Kanwar Bhan @ Fauzi S/o Om Prakash, R/o Village Khera Kalan, stating that he used to visit the house of Hari Ram. Bhim Singh further levelled suspicion against three others, because litigation regarding landed property was going on between him and these persons.
Case is Registered Case of prosecution is that on 16/10/1996, DD no. 7-A dated 09/10/1996 containing missing report of Hari Ram came to be assigned to ASI Ramzan Ali. The ASI accompanied by Ct. Rajesh Kumar reached village Khera Khurd in connection with its inquiry and there recorded statement of Bhim Singh, appended endorsement to the statement, sent ruqqa to the police station Narela whereupon present case was registered vide FIR.
-3-Investigation Starts ASI Ramzan Ali recorded statements of Chand Parkash, Jagpal and Raj Kumar. At about 3/4 p.m. on 06/10/1996, Jagpal was present at his welding shop. At that time, he saw one Tempo of blue colour lying parked at a distance of his shop and that Hari Ram, his co- villager (since deceased) was present in that Tempo. Raj Kumar while present at the shop of his brother Chand Prakash at about 5/6 p.m., saw Hari Ram going in a blue colour Tempo. In this respect, he made statement before ASI Ramzan Ali. Smt. Laxmi was owner of Tempo bearing registration no. DL-1LB-5609, having purchased the same. The tempo used to be driven by her sons Pradeep and Narender.
On 06/10/1996, the Tempo no. DL-1LB-5609 was brought to Octroi post, Safido where octroi to the tune of Rs.50.40 paise was charged as it was loaded with bananas belonging to Shiv Shankar Fruit Company. SI Dhan Singh then took over investigation, searched for Hari Ram and Ram Kumar accused and his co-accused. On 26/10/1996, the SI served notice u/s 133 of Motor Vehicle Act upon Smt. Laxmi Devi and then seized the tempo vide memo from Narender. Arrest of Accused and Recovery On 28/10/1996, Inspector Subhash Tandon accompanied by SI Ramesh Kumar, and other police officials, while patrolling at Chandpur crossing G.T.K. Road, received secret information in respect of involvement of Ram Kumar in the murder of Hari Ram in the area of P.S. Narela and that Ram Kumar was going towards Alipur. On its -4- basis, the party headed by Inspector Subhash Tandon apprehended Ram Kumar at 12 noon, at the pointing out of the secret informer at G.T.K. Road near Nangli Poona Crossing. Ram Kumar accused then made disclosure statement. Thereupon, Inspector Amarjeet Singh Bawja was informed. He too joined investigation. Thereafter, Ram Kumar took the entire party headed by Inspector Amarjeet Singh Bawja to a place near Village Jolly.
On reaching the village Jolly, Ram Kumar accused pointed out to police party the place where Hari Ram was murdered. Blood was noticed on some leaves of eucalyptus tree. Those leaves were lifted from the spot, put in a polythene, turned into a parcel and sealed with the seal bearing impression AK.
Thereafter, the entire party reached village Asthal, Bohar, where Ram Kumar accused pointed out dead body of Hari Ram. The dead body was identified by PWs Kishan Chand and Jagphool. The dead body was seized.
In the meanwhile, ASI Kartar Singh of P.S. Sadar Rohtak while patrolling in the area in the company of staff also reached there and he was apprised of the facts. ASI Kartar Singh conducted inquest proceedings on the dead body of Hari Ram and the dead body was got dispatched for autopsy. Dr. P.K. Paliwal conducted autopsy on the dead body of Hari Ram on 30/10/1996 and submitted report in this respect. In the opinion of the Doctor cause of death was injuries over the head and neck of Hari Ram which were ante-mortem in nature caused by -5- heavy sharp edged cutting object and homicidal in manner. Probable duration between death and autopsy was about 3-4 days, as further opined by the Doctor.
On 28/10/1996 the party headed by ASI Ramesh Kumar left in the company of Ram Kumar accused for village Khera, in pursuance of his disclosures statements. On reaching the house of his maternal grandmother, Ram Kumar pointed out one country made pistol and two live cartridges lying on the iron tank meant for storage of grain, and got recovered the same. These were seized. Ruqqa was sent to PS Samaypur Badli whee case FIR No. 830/96 under the Arms Act was registered against Ram Kumar accused.
Thereafter Ram Kumar accused took the police party to a fruit shop in Safido Town stating that there the bananas were unloaded from the tempo. In this respect, pointing out memo was prepared. It was thereafter that custody of Ram Kumar was handed over to Inspector Subhash Tandon.
In view of his disclosure statement, Inspector Subhash Tandon carried out enquiry around the house of his co-accused Kanwar Bhan. On the basis of secret information, Inspector Subhash Tandon in the company of his staff reached house of his accused Kanwar Bhan and apprehended him from there. Kanwar Bhan accused made disclosure statement to have thrown a Kulhari in Western Yamuna Canal, Delhi branch. Thereupon, the Inspector and his staff left for Western Yamuna Canal, Delhi Branch and at the pointing out of -6- accused Kanwar Bhan. Constable Shiv Kumar searched for Kulhari at the given place and traced it out. The kulhari was then sealed and seized.
During investigation, Kanwar Bhan accused made disclosure statement and in pursuance thereof on 31.10.96 got recovered his clothes from an almirah lying at his house. Out of those clothes, Chand Prakash PW picked up a pant of brown colour and a shirt of brown colour and pointed out that those were same which Kanwar Bhan accused was wearing at the time he took Hari Ram (deceased) along. The pant and the shirt were sealed and seized.
On 01.11.96, SI Ramesh Kumar accompanied by Ram Kumar accused reached Village Silana, District- Sonepat (Haryana). At that time, Chand Prakash PW and staff of SI Ramesh Kumar was accompanying the SI. Ram Kumar took the party to his house and asked his mother to produce his clothes. Thereupon, his mother produced some clothes which included a white colour kurta pyjama. PW Chand Prakash identified the kurta pajama as the one which Ram Kumar was wearing at the time Hari Ram deceased was taken along in the tempo. Kurta pyjama was sealed and seized.
On 02.11.96, HC Rishikesh reached police station Sadar Rohtak and collected PM report and sealed parcels pertaining to dead body of Hari Ram and handed over the same to Inspector Subhash Tandon, who in turn seized the same.
On completion of investigation, challan was put in court. -7- Charge After compliance with provisions of section 207 Cr.P.C., case came to be committed to the Hon'ble Court of Session. Prima facie case having been made out, charge for an offence u/s 302, 364 read with section 34 IPC and 201 IPC was framed against Ram Kumar, Kanwar Bhan and Sandeep accused. Since the accused persons pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
Prosecution Evidence In order to prove its case, prosecution examined following witnesses:
PW-1 Jagpal has been examined to prove that on 06/10/1996, he saw Hari Ram (since deceased) sitting in a tempo lying parked at a short distance from his wielding shop in the area of village Khera Khurd. However, he could not say as to what was the registration number of the tempo and to whom it belonged. He denied to have seen anyone sitting in the rear portion of the tempo. He also denied that Kanwar Bhan @ Fauzi visited his shop or that Kanwar Bhan asked Hari Ram to accompany him in a tempo. In this way, he did not support the prosecution version.
PW-2 Raj Kumar was present at the shop of his brother Chand Prakash situated in village Khera Khurd. According to him, Hari Ram (since deceased), went away in a blue colour tempo. According to him on the following day, father of Hari Ram inquired from him about his -8- son and he apprised him to have seen Hari Ram going in a tempo. However, he denied to seen any other person sitting in the tempo. Thus, he too did not support the prosecution case.
PW-3 Smt. Laxmi Devi is owner of tempo bearing no. DL- 1LB-5609. According to the witness, her sons namely Pradeep and Narender used to drive this tempo. But she could not tell as to which article or goods were carried by her son Pradeep in this tempo on 06/10/1996.
PW-16 Karnail Singh is Octroi Clerk of Nagar Palika, Safido Town. He deposed that on 06/10/1996 tempo number DL-1LB-5609 came to Safido Octroi post and he charged octroi as the tempo was loaded with bananas belonging to Shiv Shankar Fruit Company.
PW-6 Jagphool Singh displayed ignorance about the facts of this case and as such did not support the prosecution case.
PW-7 Chand Prakash denied that on 06/10/1996 Hari Ram (since deceased) came to his shop situated near bus stand of village Khera Khurd or that he was taken away by anyone in his presence. As such, he too did not support the prosecution case.
PW-8 Kishan Chand is the witness to the identification of the dead body of Hari Ram. He did not support case of prosecution on any other aspect.
PW-4 Ct. Rajesh has been examined to prove recording of FIR Ex.PW-4/A. PW-5 SI Ramesh Kumar, PW-10 SI Dhan Singh, PW-11 -9- Inspector Amarjeet Singh Bajwa, PW-12 SI Manohar Lal, PW-14 Head Ct. Mohan Lal, PW-16 ASI Shiv Kumar, PW-17 Ct. Kashmira Singh, PW-18 Head Ct. Kartar Singh, PW-20 Head Ct. Rishkesh, PW-21 SI Kartar Singh, PW-22 Ct. Ranvir Singh, PW-23 Head Ct. Vikram Singh, PW-24 Head Ct. Mohan Lal and PW-25 Inspector Subhash Tandon, deposed about investigation part of the prosecution story.
Medical evidence is available in the statement of PW-19 Dr. P. K. Paliwal.
PW-15 Head Ct. Bharat Singh was tendered for cross examination, but not cross examined.
Defence Plea When examined U/s. 313 CrPC, the accused persons denied all the incriminating circumstances appearing in evidence against them and pleaded false implication. Plea put forth by Ram Kumar accused is as under:
"I was picked up by the police from my house from Village Silana and then falsely implicated in this case."
Plea put forth by Sandeep accused is as under:
"I was called by a Constable to police station Narela. I was arrested in this case and then falsely implicated."
In defence, Ram Kumar accused examined DW-1 Prem Singh to prove that on 28/10/1996, at 06:30/07:00 a.m., police of P.S. Narela visited his village Silana and took away Ram Kumar accused; -10- that he and other person from the village went to P.S. Narela in search of Ram Kumar, where police replied that they had not brought Ram Kumar accused there, and as such they returned back. A Case Based on Circumstantial Evidence This case is based on circumstantial evidence. When a case rests purely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be proved, must be cogently and firmly established. Secondly, the circumstances should be of a definite tendency unerringly pointing out the guilt of the accused. Thirdly, the circumstances taken cumulatively, must form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say, the circumstances should be incapable of explanation on any reasonable hypothesis save that of the guilt of the accused. Reference in this respect may be made to law laid down in Chandmal's case reported in AIR 1976 SC 917: 1976 Cri LJ 679(SC):1976 SCC (Cri) 120.
In this case, prosecution has relied upon following circumstances:
i) Motive/Cause of Suspicion
ii) Medical Evidence - Cause of death of Hari Ram.
iii) Hari Ram (since deceased) was taken away in a tempo
by Kanwar Bhan and Ram Kumar on 06/10/1996.
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iv) Arrest of Ram Kumar accused and disclosure statement
made by him.
v). Ram Kumar accused pointed out place of murder of Hari
Ram.
vi). Recovery of dead body of Hari Ram at the instance of Ram
Kumar accused.
vii). Discovery of fact of payment of octroi at Octroi Post Safido
Town, District Jind, Haryana, at the instance of Ram Kumar accused.
viii) Recovery of clothes of Ram Kumar at his instance.
ix) Recovery of pistol and two live cartridges at the instance of Ram Kumar.
x) Recovery of kulhari at the instance of Kanwar Bhan accused
xi) Recovery of clothes at the instance of Kanwar Bhan accused.
i) Motive/Cause of Suspicion Present case was registered on the statement made by Bhim Singh, father of Hari Ram (since deceased) on 16/10/1996. Prior thereto on 09/10/1996, said Bhim Singh lodged missing report at P.S. Narela that his son Hari Ram was missing w.e.f. 06/10/1996 when he had gone to his fields. Missing report is Ex.PW-9/DA. In this report, Bhim Singh did not raise any suspicion against anyone. It was only in -12- his statement made before police on 16/10/1996 that he raised suspicion against Kanwar Bhan @ Fauzi (accused) and others, namely, Shehz Ram, Roop Chand and sons of Balwant Singh. In his statement dated 16/10/96 Bhim Singh further stated that land dispute was going on with Shehz Ram, Roop Chand and sons of Balwant Singh and that all of them had taken away Hari Ram with an intent to kill him.
It may be mentioned here that prosecution has not been able to prove the allegations levelled by Bhim Singh in his statement EX.PW-9/A. Only Bhim Singh could tell the court as to what led him to suspect Kanwar Bhan @ Fauzi, Shehz Ram, Roop Chand and sons of Balwant Singh. Bhim Singh could not be examined in court he having left this world during pendency of the trial. During investigation, the Investigating Officers, did not collect any evidence of Civil or Criminal litigation going on between Bhim Singh and anyone whose names finds mentioned in his statement Ex.PW-9/A. In absence of statement of Bhim Singh or any other evidence, it cannot be said as to what led Bhim Singh to name Kanwar Bhan @ Fauzi, Shehz Ram, Roop Chand and sons of Balwant Singh while reporting the matter to the police. Similarly, in absence of any steps by the Investigating Officer to collect evidence regarding any Civil/Criminal litigation between Bhim Singh and others, it can not be said that any such litigation was going on between Bhim Singh and others mentioned in his statement Ex.PW-9/A. -13-
ii) Medical Evidence - Cause of death of Hari Ram Medical evidence is available in the statement of PW-19 Dr. P.K. Paliwal who conducted autopsy on the dead body of Hari Ram. In the opinion of the doctor, as contained in his report Ex.PW-19/A, cause of death of Hari Ram was injuries over the head and neck which were ante-mortem in nature and caused by heavy sharp cutting object and homicidal in manner.
From the medical evidence, it transpires that dead body was identified by Kishan Chand, nephew and Raj Kumar, uncle of the deceased.
PW-8 Kishan Chand has deposed to have been taken by the police to mortuary at Rohtak where he identified the dead body of Hari Ram. Statement of PW-8 has gone unchallenged so far as the identity of the dead body is concerned. Therefore, I do not find any merit in the contention of learned defence counsel that prosecution has failed to establish that the dead body subjected to autopsy on 30/10/1996 was dead body of Hari Ram. Accused cannot take any advantage on this aspect of the matter from decision in Har Prasad @ Lala V. State 2005 (2) JCC 745, where there was no evidence to show that dead body recovered from the septic tank was that of the deceased.
From the medical evidence available in the form of autopsy report Ex.PW-19/A and statement of PW-19 Dr.P.K. Paliwal, it stands established that Hari Ram S/o Bhim Singh, aged 40 years, died because of ante mortem injuries inflicted with heavy sharp cutting object. In the -14- opinion of Dr. P.K. Paliwal, probable duration between death and post mortem examination was about 3/4 days. In view of this opinion of the doctor, it can be said that Hari Ram was murdered 3-4 days prior to the autopsy which was conducted on 30/10/1996.
Question then arises as to who murdered Hari Ram? Iii) Hari Ram (since deceased) was taken away in a tempo by Kanwar Bhan and Ram Kumar on 06/10/1996.
Case of prosecution is that on 06/10/1996 Hari Ram (since deceased) was taken away by Kanwar Bhan and Ram Kumar, both accused in tempo bearing no. DL-1LB-5609, in presence of Jagpal, Raj Kumar and Jagphool Singh.
Deposition of PW-1 Jagpal While appearing in court as PW-1 Jagpal has not supported the case of prosecution by not raising any accusing finger against any of the accused.
According to PW-1 on 06/10/1996, he was present at his wielding shop. At about 3-4 p.m., a tempo of blue colour was found lying parked at small distance from his shop. He deposed to have witnessed Hari Ram (since deceased) sitting in the tempo, but he could not tell as to whether tempo was loaded or empty. He also could not tell as to whether Hari Ram was present there prior to his having seen him in the tempo. He also could not tell about presence of Chand Prakash, who runs the building maternal shop near his shop. The witness also could not tell as to whom the tempo belonged. He could not give its -15- registration number. According to PW-1, Hari Ram boarded the tempo from the side of conductor's seat. He could not tell as to how many persons were present in the tempo in addition to Hari Ram. As regards driver of the tempo, PW-1 could not tell as to what was his age as he could not see him. The tempo was at a distance of 20 paces from his shop. In view of the statement made by the witness, the learned Addl. P.P. for State put leading questions to the witness after seeking permission from the court, but nothing useful to the prosecution could be elicited from him. The witness denied to have seen anyone sitting in the rear portion of the tempo. He denied that Kanwar Bhan @ Fauzi had ever visited his shop. He also displayed ignorance if Ram Kumar had come to the shop of Chand Prakash on that day.
In his cross examination, the witness could not say if the tempo brought to court on that day (28/01/99) was the same in which Hari Ram was seen present. He denied to have stated before the police that the number of tempo was DL-1LB-5609 or that Kanwar Bhan had asked Hari Ram to accompany him. He further denied that on 06/10/1996 he was sitting at the shop of Chand Prakash with his brother Raj Kumar or that in the meantime Hari Ram (since deceased) reached there and joined their conversation. He also denied that Kanwar Bhan @ Fauzi came there in tempo no. DL-1LB-5609, loaded with bananas, or he parked the same in front of his shop.
The above statement of PW-1 would reveal that he has not levelled any allegation against any of the accused. From his statement, -16- it can not be said that Hari Ram (since deceased) was taken away on 06/10/1996 by Kanwar Bhan @ Fauzi or Ram Kumar accused. Deposition of PW2 - Raj Kumar Then there is statement of PW-2 Raj Kumar who was present at the shop of his brother Chand Prakash at about 5/6 p.m. about 2/2½ years ago (prior to 28/01/99 when his statement was recorded in court). According to the witness, Hari Ram had gone in a blue colour tempo. But the witness displayed ignorance as to where Hari Ram had gone and in whose company. The witness was put leading questions by learned Addl. Public Prosecutor after seeking permission from the court. During such examination, PW-2 admitted that Hari Ram was handicap person because of defect in his leg; that tempo was parked at the distance of 25 steps from his shop; that shop of Jagpal adjoins his shop; and that Hari Ram himself boarded the tempo from the side of conductor. However, the witness denied to have seen any person other than Hari Ram sitting in the tempo. He specifically denied that Fauzi was driving the tempo or that he was sitting in the driver's seat. He denied to have expressed any doubt against anyone regarding missing of Hari Ram. He also denied to have made any statement before the police. The witness could not identify the tempo which was parked on pucca road. He could not identify the tempo brought to the court as the one in which Hari Ram was seen sitting on the aforesaid date. It is in his cross examination that his statement recorded by the police was not read over to him. The witness -17- volunteered that ASI Ramzan had threatened him to falsely implicate him in case he did not make any statement. The fact remains that PW-2 Raj Kumar has not supported the case of prosecution by levelling any allegations against any of the accused.
Deposition of PW6 - Jagphool Singh PW-6 Jagphool singh displayed ignorance as to from where Hari Ram (since deceased) was missing. He also displayed ignorance as to what had happened to Hari Ram. He denied to have participated in the investigation of this case. The witness was put leading questions by learned Addl. Public Prosecutor after seeking permission from the court. During such examination, the witness denied to have made any such statement before the police. Nothing useful to the prosecution could be elicited from the witness during his such examination. The fact remains that PW-6 also did not raise any accusing finger against any of the accused present in the court.
Deposition of PW7 - Chand Prakash Then there is statement of PW-7 Chand Prakash. According to PW-7, Hari Ram (since deceased) used to visit his shop off and on, but he denied that Hari Ram visited his shop on 06/10/1996. The witness admitted that he knew Kanwar Bhan @ Fauzi accused but denied that he knew Ram Kumar accused. He further denied that on 06/10/96, Hari Ram was taken away by anyone in his presence. He too was put leading questions by learned Addl. Public Prosecutor after seeking permission from the court, but during such examination, nothing -18- useful to the prosecution could be elicited from him. The fact remains that PW-7 has also not levelled any accusation against any of the accused.
Deposition of PW3 Smt. Laxmi, Owner of Tempo In view of the statements of the aforesaid witnesses, statement of PW-3 Smt. Laxmi Devi that her sons Pradeep and Narender used to drive DL-1LB-5609 does not come to the help of the prosecution, particularly when she could not say as to what happened on 06/10/96. Neither Pradeep nor Narender, sons of Smt. Laxmi Devi have been examined in court to explain as to whether they or any of them had taken their tempo or as to who had driven it or what material was transported in the tempo on 06/10/96, from where and upto which place and by whom.
Deposition of PW26 - Karnail Singh Similarly, statement of PW-26 Karnail Singh that on 06/10/96, tempo no. DL-1LB-5609 was brought to the octroi post of Safido Town and he charged octroi vide receipt ExPW-14/D, does not help the prosecution when the above named witnesses have not supported the case of prosecution that Hari Ram was taken away in this tempo or by any of the accused present in court.
iv) Arrest of Ram Kumar accused and Disclosure statement made by him Case of prosecution is that on 28.10.96, PW5 SI Ramesh -19- Kumar in the company of PW25 Inspector Subhash Tandon, PW14 HC Mohan Lal and PW20 HC Rishikesh, while patrolling on G.T. Karnal Road, received secret information and it was thereupon that Ram Kumar accused was apprehended from G.T.K. Road, at the pointing out of secret informer.
According to PW25, he received secret information to the effect that Ram Kumar involved in a case of kidnapping cum murder of Police Station- Narela was seen going towards Alipur and thereupon he was apprehended at about 12 noon, near Nangli Poona Crossing, on G.T.K. Road, Delhi. PW25 Inspector Subhash Tandon also deposed about disclosure statement Ex.PW5/A made by Ram Kumar. However, PW20 HC Rishikesh nowhere deposed about arrest of Ram Kumar accused by Inspector Subhash Tandon in his presence. Had Ram Kumar been apprehended by the police party headed by Inspector Subhash Tandon or in his presence, PW20 HC Rishikesh would not have omitted to state about this important aspect while making statement in court.
PW14 HC Mohan Lal deposed about arrest of Ram Kumar accused from Nangli Poona Road, G.T.K. Road by the party headed by Inspector Subhash Tandon. Then he deposed about disclosure statement Ex.PW5/A made by Ram Kumar. Similarly, PW5 SI Ramesh Kumar deposed that Ram Kumar accused made disclosure statement in respect of murder of Hari Ram and offered to point out the place of dead body of Hari Ram, the place where clothes of Hari Ram were thrown in -20- some canal, the place where Kulhari was thrown and also offered to get a Kulhari recovered in addition to countrymade pistol given to him by Sandeep, accused.
It is pertinent to mention here that HC Mohan Lal did not narrate even legally admissible portion of the disclosure statement made by Ram Kumar or as to what he had offered to get discovered in pursuance thereof. Had PW14 HC Mohan Lal been accompanying the party, he would not have omitted to state about these important aspects.
v) Ram Kumar accused pointed out place of murder of Hari Ram Case of prosecution is that in pursuance of his disclosure statement, Ram Kumar accused led the police party headed by Inspector Amarjeet Singh Bajwa to a place near Village- Jolly.
According to PW25, Inspector Subhash Tandon, Inspector Amarjeet Singh Bajwa, reached the place, where Ram Kumar accused was apprehended, after he was informed about his apprehension, and that the Inspector arrested the accused. According to PW25, Ram Kumar accused pointed out to them a place where Hari Ram was murdered. Further, according to the Inspector, blood was noticed on some leaves of Eucalyptus tree, blood stained leaves were lifted from the spot; sample soil was also picked up from the spot and the same were turned into separate parcels and then sealed with the seal bearing letters "AK". The memos, vide which these items were seized, were attested by him (PW25) and persons from the public, namely, Kishan Chand and Jagphool. These memos are Ex.PW6/A and Ex.PW6/B. -21- Photographs of that place were also got prepared.
Inspector Amarjeet Singh Bajwa, while appearing as PW11, deposed that on 28.10.96, he went to G.T. Karnal Road, Alipur, where Inspector Subhash Tandon met him alongwith Ram Kumar accused; that the Inspector handed over to him copy of disclosure statement made by Ram Kumar whereupon he interrogated him and arrested him. He further deposed that he alongwith Inspector Subhash Tandon alongwith other staff then went to Village Jolly. At that time, PWs Kishan Chand and Jagphool, both resident of Khera Khurd, were also accompanying them. The witness further stated that on reaching village Jolly, Ram Kumar accused pointed out towards eastern embankment of the Canal and told that it was there that he, Kanwar Bhan and Sandeep committed murder of Hari Ram. According to the witness, in this respect, pointing out memo Ex.PW7/A was prepared. Blood stained leaves of Eucalyptus tree were picked up from the spot, turned into a parcel and seized vide memo Ex.PW6/A. The witness further deposed about seizure of sample soil vide memo Ex.Pw6/B after the same was turned into a parcel. According to PW11, after use, the seal was handed over to PW Kishan Chand.
A perusal of recovery memos Ex.PW6/A and Ex.PW6/B would reveal that these bear attestation of Kishan Chand, Jagphool and Inspector Subhash Tandon as the attesting witnesses to the recovery of the leaves stained with blood and the sample soil. It was for the prosecution to explain as to how and when Kishan Chand and Jagphool -22- came to join the party. There is nothing on record to suggest as to who called Kishan Chand and Jagphool and from where they were brought to the place of recovery of the blood stained leaves and the sample soil. There is also nothing on record to suggest as to whether Kishan Chand and Jagphool PWs were called by any police officer before or after arrest of Ram Kumar accused. In this respect, when we advert to statement of Jagphool (PW6), it would transpire that he has not supported this version narrated by PW11 and PW25.
In his chief examination, PW6 displayed ignorance as to what had happened to Hari Ram. He specifically denied that police conducted any investigation in his presence in connection with missing of Hari Ram. The witness was put leading questions by learned Additional Public Prosecutor but nothing useful to the prosecution could be elicited from him. He categorically denied the suggestion that on 28.10.96 he and Kishan Chand, nephew of Hari Ram, were called by SHO at about 1.30 p.m near Alipur police station, while Ram Kumar accused was with the police or that Ram Kumar accused led them to a place on the embankment of Jawahar Lal Nehru Canal in the area of Village Jolly or that Ram Kumar pointed out any place saying that there Hari Ram was murdered by him and his companions Kanwar Bhan and Sandeep. The witness further denied that leaves of Eucalyptus tree were picked up from that place or sample soil was also picked up or that after use seal was handed over to him. Thus, PW6 has not supported the case of prosecution regarding pointing out the place of murder of -23- Hari Ram or factum of recovery of blood stained leaves or sample soil from any such place.
Similarly, Pw8 Kishan Chand has not supported the case of prosecution on this aspect. According to the witness, police took him to mortuary at Rohtak where he identified the dead body of Hari Ram. He categorically denied that anything else was done in his presence. The witness was put leading questions by learned Additional Public Prosecutor after seeking permission from the court but nothing useful to the prosecution could be elicited from him. He denied seizure of blood stained leaves or sample soil or factum of pointing out of the place of murder of Hari Ram. As regards his signatures available on memos Ex.PW6/A an d Ex.PW6/B, the witness categorically denied preparation of these two memos in his presence. He volunteered that his signatures were obtained by the police on blank papers. He categorically denied that he had been won over by the accused persons and that is why he was not deposing against them.
In view of the statements of PWs Kishan Chand and Jagphool, the prosecution version narrated by the police officials (PW11 and PW25) regarding pointing out of the place of murder by Ram Kumar accused, recovery of blood stained leaves or sample soil from a place near the eastern embankment of Jawahar Lal Nehru Canal becomes doubtful.
It may be mentioned here that the leaves and sample soil were sent for analysis. Vide report Ex. PX, Senior scientific Officer, -24- FSL, Delhi, opined that no blood was detected on any of these two items. This opinion of the expert witness further demolishes the case of prosecution that Hari Ram was murdered by any of the accused at a place near the eastern embankment of the aforesaid canal.
vi) Recovery of Dead Body of Hari Ram at the Instance of Ram Kumar accused Case of prosecution is that on 28/10/1996 after the recoveries of blood stained leaves and sample soil from the place of murder pointed out by Ram Kumar accused, he led the police party headed by Inspector Amarjeet Singh Bajwa to Village Asthal, Bohar, pointed the dead body found lying entangled under a pullia and the dead body was identified by Kishan Chand and Jagphool, to be that of Hari Ram. That is how the dead body was seized and then got subjected to autopsy by ASI Kartar Singh of P.S. Sadar Rohtak.
In this respect, prosecution has placed reliance on statements of PW-11 Inspector Amarjeet Singh Bajwa, PW-21 ASI Kartar Singh of P.S. Sadar Rohtak, PW-23 Head Ct. Vikram, PW-25 Inspector Subhash Tandon and recovery memo Ex.PW-8/A. Recovery memo Ex.PW-8/A bears attestation of Kishan Chand, Jagphool and Inspector Subhash Tandon. Kishan Chand has been examined as PW-8, Jagphool as PW6 and Inspector Subhash Tandon as PW-25. This document was preparaed by Inspector Amarjeet Singh Bajwa (PW-11).
According to PW-11 his party followed the flow of water and -25- reached Asthal, where, Ram Kumar accused pointed out the dead body found entangled in a pullia and the same was identified by Kishan Chand and Jagphool. The witness also deposed about arrival of ASI Kartar Singh of P.S. Sadar Rohtak at that place and that he too was apprised of the facts. The witness then deposed that ASI Kartar Singh conducted inquest proceedings in respect of the dead body and got the dead body removed for autopsy vide memo Ex.PW-8/A. PW-25 Inspector Subhash Tandon also deposed in line with the statement made by PW-11. He further deposed that the dead body was identified by Kishan Chand and Jagphool in view of identifying mark i.e. the rod in one of the legs & stitching marks on the head. The witness further deposed that after the inquest proceedings were carried out and statements of witnesses were recorded by PW-11 u/s 161 Cr.P.C. they returned to the office of Special Staff.
PW-6 Jagphool Singh and PW-8 Kishan Chand are closed relatives of Hari Ram deceased as stands recorded in recovery memo Ex.PW-8/A and this fact has nowhere been disputed. At this stage, when we advert to the statement of PW-6 Jagphool it would transpire that he has denied the version narrated by PW-11 & PW-25 regarding recovery of dead body at the instance of Ram Kumar accused. The witness was put leading questions by learned Addl. P.P. for State after seeking permission from the court. During such examination, the witness denied to have stated before the police that the investigating officer alongwith the staff searched the dead body and clothes of Hari -26- Ram following the flow of water of the canal or that they reached Asthal Bohar, bridge of the canal or that the dead body with red langot around its waist was found there or that he or PW Kishan Chand identified the dead body to be that of Hari Ram or that iron rod was found in one of the legs or that he signed the identification cum recovery memo Ex.PW- 8/A. Thus PW6 has not supported the case of prosecution regarding recovery of dead body at the instance of Ram Kumar accused.
Then there is statement of PW-8 Kishan Chand. He too did not support the case of prosecution. Learned Addl. P.P. put leading questions to the witness after seeking permission from the court but nothing useful to the prosecution could be elicited from him. The witness denied to have signed recovery memo Ex.PW-8/A regarding the dead body of Hari Ram at the instance of Ram Kumar accused. As per statement of this witness, police took him to mortuary at Rohtak where he identified the dead body of Hari Ram accused, and nothing else was done in his presence.
At this stage, it would be pertinent to advert to the statement of PW-21 ASI Kartar Singh of PS Sadar Rohtak who is alleged to have carried out inquest proceedings and got the dead body subjected to autopsy from Dr. P.K. Paliwal. According to PW-21, on 28/10/1996, he and his staff while on patrolling duty reached near bridge of Jawahar Canal, near Village Bohar. A party of Delhi Police consisting of SHO, PS Narela and other staff met them there. Further according to witness, dead body was lying stuck under bridge as there was small quantity of -27- water in the canal. The dead body was identified by Kishan Chand and Jagphool Singh. It was a dead body wearing only a langot. Dead body was decomposed. The witness then deposed to have carried out of inquest proceedings of the dead body and handed over the inquest proceedings to MHC (R) of PS Sadar Rohtak and the dead body to the Delhi Police for conducting inquest proceedings. In this respect, according to PW-21, receipt Ex.PW-21/A was executed.
As the dead body is alleged to have been got recovered by Ram Kumar accused in presence of ASI Kartar Singh of P.S. Sadar Rohtak, PW-11 Inspector Amarjeet Singh Bajwa should have got the recovery memo Ex.PW-8/A attested from ASI Kartar Singh. But the fact remains that this memo EX.PW-8/A was not got attested from ASI Kartar Singh. The other two attesting witnesses ,namely, Kishan Chand and Jagphool have not supported the case of prosecution regarding recovery of the dead body from the canal near Village Asthal Bohar on 28/10/1996. It is not believable that these two relatives of Hari Ram would not have deposed against Ram Kumar accused in case of recovery of the dead body of Hari Ram at his instance. But the fact remains that Kishan Chand and Jagphool nowhere deposed about recovery of dead body of Hari Ram at the instance of Ram Kumar accused.
At this stage, when we advert to the proceedings carried out by ASI Kartar Singh of PS Sadar Rohtak in respect of dead body, it would transpire that these documents Ex.PW-21/A, PW-21/B, PW-21/C -28- and PW-21/D do not support the prosecution version regarding recovery of dead body of Hari Ram at the instance of Ram Kumar accused.
Inquest proceedings Ex.PW-21/B bear signatures only of two witnesses, namely, Kishan Chand and Raj Kumar. The inquest proceedings do not bear attestation of any member of the police party of Delhi Police. Request submitted by ASI Kartar Singh for autopsy on the dead body of Hari Ram does not contain any recital of the factum of recovery of the dead body at the instance of Ram Kumar accused.
Ex.PW-21/C is the statement of Raj Kumar, one of the witnesses to the inquest proceedings, recorded by ASI Kartar Singh. Raj Kumar in his statement Ex.PW-21/C made before ASI Kartar Singh on 28/10/1996 firstly stated the manner in which Hari Ram was found missing and then deposed to have accompanied Delhi Police i.e. Police Narela, Delhi, in connection with search of Hari Ram. He further stated therein that on reaching the bank of Jawahar Lal Nehru canal, near Village Bohar, Distt. Rohtak, one dead body was noticed which, he and Kishan Chand, identified to be the dead body of Hari Ram. In that statement, it does not stand recorded that the dead body was pointed out by Ram Kumar accused or that Ram Kumar was accompanying police of P.S. Narela, Raj Kumar and Kishan Chand at the time of recovery of the dead body. Had Ram Kumar accused led the police party consisting of PW-6, PW-8, PW-11 and PW-25 to the disclosed place and got recovered the dead body, Raj Kumar must have stated before the police in statement Ex.PW-21/C that actually Ram Kumar -29- accused accompanying them had got the dead body recovered from that place.
Then, there is statement Ex.PW-21/D i.e. of Kishan Chand another attesting witness to inquest proceedings recorded on 28/10/1996 by ASI Kartar Singh. As per version narrated by Kishan Chand therein, he accompanied by Raj Kumar S/o Rajender and Delhi Police reached near the bank of the canal, Village Bohar and found a dead body, which, he and Raj Kumar identified to be that of his uncle Hari Ram. Kishan Chand did not state therein that Ram Kumar accused was accompanying them and Delhi Police at that time or that the dead body was pointed out by Ram Kumar accused or thereafter it was recovery from the canal and got subjected to postmortem examination. As noticed above, while appearing as PW-6 Kishan Chand has not supported the case of prosecution as narrated by PW-11 & PW-25.
It is pertinent to mention here that even prosecution has failed to prove on record the site plan Mark-B regarding the dead body of Hari Ram at the time Inspector Amarjeet Singh Bajwa was examined in court.
In view of all this, it becomes doubtful if Ram Kumar accused was accompanying the police party headed by Inspector Amarjeet Singh Bajwa or that he got recovered the dead body of Hari Ram.
Case of prosecution is that dead body of Hari Ram was handed over by Inspector Amarjeet Singh Bajwa of Delhi Police to ASI -30- Kartar Singh of P.S. Sadar Rohtak in presence of SI Dhan Singh of P.S. Narela on 28/10/1996. In this respect receipt Ex.PW-21/A has been placed on record. It purports to bear signatures of SI Dhan Singh as one of the attesting witnesses. SI Dhan Singh stepped into the witness box as PW-10. He nowhere deposed that he was accompanying the police party headed by Inspector Amarjeet Singh Bajwa on 28/10/1996 or that dead body of Hari Ram was handed over to ASI Kartar Singh in his presence or that he signed receipt Ex.PW-21/A at that time. It further creates doubt in the version put forth by PW-11 and PW-25 regarding recovery of dead body at the instance of Ram Kumar accused.
vii) Discovery of fact of payment of octroi at Octroi Post Safido Town, District Jind, Haryana at the instance of Ram Kumar accused Case of prosecution is that Hari Ram (since deceased) was taken away by Ram Kumar accused and his companion Kanwar Bhan in a tempo loaded with Bananas, belonging to relative of Kanwar Bhan accused; that Hari Ram was taken to Khar Khoda, then to Safido Town, where Bananas were unloaded and then Hari Ram was brought to Jawahar Lal Nehru Canal, near Village Jolly, where all the accused did commit his murder. It is also case of prosecution that Ram Kumar accused on 29.10.96 led the police party headed by SI Ramesh Kumar (PW5) to Safido Town and pointed towards the Octroi Post where the tempo was brought with Hari Ram in it and Octroi was paid against -31- receipt. It is also case of prosecution that thereafter Ram Kumar took the party to a fruit shop in Safido Town and pointed out that it was the same shop where bananas were unloaded. In this respect, prosecution has examined PW5 SI Ramesh Kumar, PW7 Chand Prakash and PW22 Constable Ranvir.
PW5 has deposed about pointing out of the Octroi Post and shop by Ram Kumar accused, on 29.10.96. PW7 Chand Prakash has not supported the version narrated by SI Ramesh Kumar on this aspect. While appearing in court, PW7 displayed ignorance about Ram Kumar accused. According to him, police obtained his signatures on few blank papers after cremation of Hari Ram. He denied to have joined investigation on 29.10.96. He further denied to have seen Ram Kumar accused or Kanwar Bhan accused in taking away Hari Ram in a tempo. As noticed above, PW1 Jagpal, PW2 Raj Kumar, PW6 Jagphool and PW8 Kishan Chand have also not raised any accusing finger against any of the accused.
PW3 Smt. Laxmi Devi, owner of tempo No. DL-1LB-5609 also did not support the case of prosecution. According to this witness, her sons Pradeep and Narender, used to drive the tempo but she displayed ignorance if any goods or articles were carried by his son Pradeep in the tempo. Leading questions were put to this witness by learned Additional Public Prosecutor after seeking permission from the court but nothing useful to the prosecution could be elicited from her.
Case of prosecution is that notice U/s. 133 of Motor Vehicle -32- Act was served upon PW3 Smt. Laxmi Devi to which she replied vide Ex.PW3/A that her son Pradeep had handed over the tempo to Kanwar Bhan accused in connection with unloading of bananas. However, PW3 denied to have submitted any such reply to the police. Record would reveal that the tempo was seized by the police on 28.10.96 vide memo Ex.PW10/A when produced by Narender in presence of HC Virender Kumar before SI Dhan Singh. While appearing in court as PW10, SI Dhan Singh deposed about service of notice U/s. 133 of Motor Vehicle Act upon Smt. Laxmi Devi, owner of the tempo, and its seizure vide memo Ex.PW10/A from Narender son of Smt. Laxmi Devi. But the contents of reply to the said notice have not been proved on record. Smt. Laxmi Devi denied to have given any reply to any such notice. The fact remains that the tempo was seized by the police on 26.10.96 and the factum of use of this tempo by Kanwar Bhan had come to the notice of the police on 26.10.96. Therefore, prosecution cannot take any advantage of the statement of PW5 SI Ramesh Kumar in respect of discovery of the Octroi Post and the fruit shop situated in Safido Town. In this view of the matter, learned defence counsel has rightly placed reliance on State of Haryana Vs. Jagbir Singh and Anr. 2003 VIII AD (S.C.) 623; Sukhbinder & Ors. V. State of Punjab 1994 JCC 495. Furthermore, SI Ramesh Kumar nowhere prepared any pointing out memo of the said fruit shop or the Octroi Post. There is no explanation as to why no such pointing out memo was prepared by him in case actually Ram Kumar accused had led the police party to Octroi Post and -33- the fruit shop. Therefore, no reliance can be placed on this otherwise inadmissible evidence regarding the pointing out of these two places by Ram Kumar, as rightly argued by learned defence counsel.
viii) Recovery of clothes of Ram Kumar at his instance Case of prosecution is that on 01.11.96, Ram Kumar accused led the police party headed by SI Ramesh Kumar, while PW Chand Prakash was also accompanying them, to his house situated in Village Silana, District-Sonepat (Haryana), and at that time, the clothes, which he was wearing at the time of kidnapping or abduction of Hari Ram, were produced by his wife and identified by Chand Prakash PW.
In this respect, prosecution has placed reliance on the statements of PW5 SI Ramesh Kumar, PW7 Chand Prakash and PW22 Ct. Ranvir and also on recovery memo Ex.PW7/D. Recovery memo Ex.PW7/D bears signatures of Chand Prakash and Constable Ranvir Singh as attesting witnesses. Vide this document, a kurta-pyjama was seized by SI Ramesh Kumar, when produced at his house. According to PW5 SI Ramesh Kumar, these clothes were produced by mother of Ram Kumar accused, and Chand Prakash identifieid the same as clothes which Ram Kumar accused was wearing at the time deceased was taken along in the tempo.
Statement of PW5 stands contradicted by PW22 Constable Ranvir Singh when he deposed that a kurta-pajama was found lying at the house of Ram Kumar accused when he reached there in the company of SI Ramesh Kumar and PW Chand Prakash. PW22 -34- nowhere deposed that these clothes were produced by the mother of Ram Kumar. Even in recovery memo Ex.PW7/D, it does not find mentioned that these clothes were produced by the mother of Ram Kumar accused.
PW7 Chand Prakash, the only witness from the public, allegedly accompanying the police, has not supported the case of prosecution. He denied to have gone to the house of accused Ram Kumar or that any cloth of Ram Kumar was seized by the police in his presence. The witness no doubt admitted his signatures at point A in recovery memo Ex.PW7/D but explained that this document was not prepared in his presence and further that police had obtained his signatures on blank papers. This statement of PW7 creates a doubt in the version narrated by PW5 SI Ramesh Kumar and PW22 Constable Ranvir regarding recovery of clothes at the instance of Ram Kumar accused by his mother from his house on 01.11.96.
Furthermore, case of prosecution is that after recovery, these clothes were sealed in a parcel and sealed with the seal bearing impression RK and after use, the seal was handed over to PW Chand Prakash. As noticed above, PW7 Chand Prakash has not supported the case of prosecution about recovery. PW22 Constable Ranvir, another attesting witness, nowhere deposed in his chief examination that after use, the seal was handed over to PW Chand Prakash.
As per prosecution version, these clothes Ex. P3 and P4 were sent to CFSL for analysis. On analysis, the expert witness opined -35- in report Ex.PX that no blood could be detected on any of these two clothes. Accordingly, it cannot be said that Ram Kumar accused was wearing these clothes at the time of any such kidnapping or abduction of Hari Ram or that any such recovery was got effected by Ram Kumar from his house.
ix) Recovery of pistol and two live cartridges at the instance of Ram Kumar accused Case prosecution is that Ram Kumar accused had collected countrymade pistol from his co-accused Sandeep which they carried at the time of murder of Hari Ram and that Ram Kumar accused got recovered one countrymade pistol and two live cartridges from the house of his maternal grandfather in village Khera.
To prove this fact, prosecution has examined PW5 SI Ramesh Kumar. According to PW5, on 28.10.96, Ram Kumar accused made disclosure statement Ex.PW5/A and thereafter led to the house of his maternal grandfather in Village Khera and got recovered one countrymade pistol and two live cartridges which were lying on an iron tank meant for storage of grain. Further, according to the witness, he seized firearm and ammunition, sent ruqqa to police station Samay Pur Badli and got a separate case registered.
It may be mentioned here that in this case, prosecution has not got proved on record any proceedings conducted by SI Ramesh Kumar regarding recovery of firearm and ammunition at the instance of Ram Kumar. It is also pertinent to mention here that as per disclosure -36- statement stated to have been made by Ram Kumar accused, he offered to get recovered a countrymade pistol, which was given to him by Sandeep, from the house of his mother's sister. But, according to PW5, the recovery of countrymade pistol and two live cartridges was got effected from the house of maternal grandfather of Ram Kumar. It is not case of prosecution that countrymade pistol was used. There is also no explanation on record to suggest as to why separate case was got registered by SI Ramesh Kumar in respect of recovery of firearm and ammunition, when Ram Kumar is alleged to have taken along countrymade pistol at the time of commission of murder of Hari Ram. There is nothing on record to suggest that any step was taken by the prosecution to lift finger prints from the countrymade pistol so as to connect Ram Kumar accused with the present crime. In absence of any documentary proof regarding recovery of countrymade pistol and two live cartridges, statement of PW5 SI Ramesh Kumar on this aspect does not help the case of prosecution so as to connect Ram Kumar accused with the commission of present crime, as rightly contended by learned defence counsel.
Involvement of Kanwar Bhan accused Case of prosecution is that Kanwar Bhan accused was arrested on 29.10.96 from his house. PW25 Inspector Subhash Tandon is alleged to have arrested him on the basis of secret information and on the basis of disclosure statement Ex.PW5/A made by Ram Kumar accused.
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x) Recovery of Kulhari at the instance of Kanwar Bhan accused According to PW25, at that time, HC Mohan Lal, HC Bharat Singh and Constable Suresh were accompanying him. During interrogation, Kanwar Bhan accused is alleged to have made disclosure statement that he had thrown a kulhari in Western Yamuna Canal, Delhi branch. Disclosure statement made by Kanwar Bhan accused is Ex.PW24/A. It bears attestation of HC Mohan Lal and HC Bharat Singh. HC Mohan Lal has appeared as PW14 and ASI Shiv Kumar as PW16.
It is in the statement of PW25 Inspector Subhash Tandon that in pursuance of his disclosure statement, Kanwar Bhan accused led them to Western Yamuna Canal, Delhi Branch, pointed out a place from where a kulhari was recovered and seized vide memo Ex.PW7/B. He further deposed that PW Chand was accompanying them at that time. Recovery memo Ex.PW7/B bears attestation of Chand Prakash PW and Constable Shiv Kumar. As per contents of this memo, one kulhari was got recovered by Kanwar Bhan on 29.10.96 in presence of Constable Shiv Kumar and Chand Prakash and the same was turned into a parcel, then sealed and after use the seal was handed over to PW Chand Prakash.
It may be mentioned here that it is not case of prosecution that at the time disclosure statement was made by Kanwar Bhan accused, after his arrest, PW Chand Prakash was accompanying the police party headed by Inspector Subhash Tandon. There is no explanation as to at what time and from where PW Chand Prakash was -39- called to be associated in the party. PW Chand Prakash, while appearing in court as PW7, did not support the case of prosecution regarding recovery of any Kulhari at the instance of Kanwar Bhan accused. He denied to have joined investigation on 29.10.96 or to have stated to the police that on that date one kulhari was got recovered by Kanwar Bhan accused or that the same was turned into a parcel or seized. No doubt, he admitted his signatures on memo Ex.PW7/B, but explained that his signatures were obtained on blank papers. Thus, PW7 Chand Prakash has not supported case of prosecution regarding recovery of Kulhari at the instance of Kanwar Bhan accused.
Then there is statement of PW14 HC Mohan Lal. According to PW14, Kanwar Bhan accused made disclosure statement Ex.PW14/B and then led to Western Yamuna Canal in Village Kilana and got recovered a Kulhari which was seized and then sealed. The witness, however, could not tell as to what was the inscription of the seal used in sealing the parcel containing the kulhari. As per prosecution version, the seal was handed over to PW Chand Prakash, after it was used in sealing the parcel. But, as noticed above, PW7 Chand Prakash has nowhere deposed that seal was handed over to him after use, after any such recovery of Kulhari.
In case of recovery of such an incriminating material, generally rough sketch thereof is prepared so as to rule out possibility of tampering with case property. In this case, no rough sketch of the kulhari has been got proved on record. No explanation has been -40- furnished regarding non-preparation of rough sketch of the kulhari.. Furthermore, during investigation, the kulhari was sent to FSL for analysis. No foreign material was found adhered on the Kulhari, as is available from the report Ex. PX of the expert witness. Learned defence counsel argued that had this Kulhari been used in causing injuries on the person of Hari Ram, blood or flesh could have been found stuck on the blade of Kulhari, and in absence of any foreign material on Kulhari, it cannot be said that this weapon was used by Kanwar Bhan accused in commission of the crime.
PW16 ASI Shiv Kumar is another witness to the recovery of Kulhari. While appearing in court, he deposed about recovery of Kulhari at the instance of Kanwar Bhan accused on 29.10.96. It is in his cross examination that place of recovery is accessible to all. In view of this admission by PW16 that place of recovery is accessible to all, it cannot be said with certainty that Kanwar Bhan accused had kept concealed the kulhari at the given place, particularly when PW Chand Prakash has not supported the case of prosecution as to recovery of kulhari at the instance of Kanwar Bhan accused, and as such prosecution case on this aspect becomes highly doubtful.
xi) Recovery of clothes at the instance of Kanwar Bhan accused:
Case of prosecution is that on 31.10.96 Kanwar Bhan accused led the police party headed by SI Ram Kumar to Village Khera and from there clothes i.e. a pant and a shirt were recovered from the -41- almirah lying in his house, when produced by his wife. These clothes were seized vide memo Ex.PW7/C. A perusal of recovery memo Ex.PW7/C would reveal that it bears attestation of PW Chand Prakash and Constable Ranvir Singh.
While appearing in court as PW5, SI Ramesh Kumar deposed that on 31.10.96, Kanwar Bhan accused accompanied his party to Village Khera. At that time, Chand Prakash, a witness from the public, was also accompanying them. On reaching his house, Kanwar Bhan accused took his clothes out of an almirah and Chand Prakash PW picked up a pant of brown colour and a shirt of brown colour and told that these clothes were the clothes which Kanwar Bhan accused was wearing at the time he took Hari Ram along. The witness further deposed about seizure of these clothes vide memo Ex.PW7/C after the same were turned into a parcel.
When we advert to statement of PW7 Chand Prakash, it would transpire that he did not support the version narrated by PW5. PW7 deposed that police had obtained his signatures on blank papers after cremation of Hari Ram. He was put leading questions by learned Additional Public Prosecutor but nothing useful to prosecution could be elicited from him. As regards his signatures on recovery memo Ex.PW7/C, the witness admitted that this memo was bearing his signatures, but at the same time, explained that these were obtained on blank papers. The witness categorically denied the suggestion put forth by learned Additional Public Prosecutor that any such cloth was -42- recovered from the house of Kanwar Bhan accused.
Then there is statement of PW22 Constable Ranvir. According to him, on 31.10.96, when he accompanied by SI Ramesh Kumar and other staff and PW Chand Prakash, went to the house of Kanwar Bhan accused, his wife produced a pant and a shirt which were identified by Chand Prakash PW. He further deposed about seizure of the clothes vide memo Ex.PW7/C. As noticed above, PW5 SI Ramesh Kumar deposed that the clothes were taken out of the almirah by Kanwar Bhan accused himself. He did not depose that these were taken out of the almirah by wife of Kanwar Bhan accused.
There is nothing in the statements of PW5 and PW22 as to when PW Chand Prakash was called and from where or when he was associated in the party. PW Chand Prakash has not supported the version narrated by PW5 and PW22. Furthermore, PW22 nowhere deposed about handing over of seal used in sealing the clothes. Therefore, the version narrated by PW5 and PW22 regarding recovery of clothes at the instance of Kanwar Bhan accused cannot be accepted, as rightly argued by learned defence counsel.
Furthermore, the clothes stated to have been recovered at the instance of Kanwar Bhan accused, were sent to FSL for analysis. Report Ex. PX given by the expert witness would reveal that no blood was observed on the clothes Ex. P1 and P2. Therefore, it cannot be said that Kanwar Bhan accused was wearing these clothes at the time of commission of any such crime.-43-
Involvement of Sandeep Kumar accused Case of prosecution is that as per disclosure statement made by Ram Kumar accused, Sandeep Kumar accused was also accompanying him and Kanwar Bhan at the time of murder of Hari Ram. However, none of the prosecution witnesses has raised any accusing finger against Sandeep accused. No recovery of any incriminating fact was made from him or at the instance of Sandeep Kumar accused. As noticed above, prosecution has failed to prove on record that any countrymade pistol was handed over by Sandeep Kumar accused to Ram Kumar accused at any point of time or that any such firearm was recovered from Ram Kumar accused or at his instance.
Keeping in view the material on record, this court comes to the conclusion that prosecution has miserably failed to establish any of the circumstance except the death of Hari Ram, and as a result it has failed to bring on record any incriminating circumstance against Sandeep Kumar accused as well.
Conclusion In view of the above discussion, this court comes to the conclusion that prosecution has failed to bring home any of the three charges levelled against any of the three accused. Consequently, all these three accused namely Ram Kumar, Kanwar Bhan and Sandeep accused are acquitted in this case.
Case property be destroyed in accordance with rules on -44- expiry of period of appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room.
File be consigned to record room.
Announced in open court on dated 25th April, 2007 [ Narinder Kumar ] Additional Sessions Judge Fast Track Court: Rohini : Delhi