Delhi District Court
2.2005 vs . on 8 August, 2014
IN THE COURT OF SH. BHARAT PARASHAR, ASJ-01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0021422009
Date of filing of charge sheet : 23.10.2001
Date of framing of charge : 17.09.2002 and
01.02.2005
(against accused
Sharwan only)
Date of final arguments : 29.05.2014
Date of judgment : 08.08.2014
SC No. 08/12
FIR No. 253/01
PS Parliament Street
U/s 193/201/302/307/419/468/471/120B/34 IPC
& Section 25/25(1B)/27/29 Arms Act
In re:
STATE
Vs.
1. Sher Singh @ Sheru @ Pankaj (Convicted)
S/o Surender Singh
R/o 57, East Raj Putana,
B. T. Ganj, Roorkee,
Haridwar, Uttranchal
2. Shekhar Singh (Acquitted)
S/o Raj Pal Singh
R/o 18/2 East, Raj Putana,
Roorkee, Distt. Haridwar,
Uttranchal
State v. Sher Singh Rana & Ors. Page 1 of 217
3. Raj Bir Singh (Acquitted)
S/o Jagat Singh
R/o Bijo Pur, PS Laskar,
Distt. Haridwar, Uttranchal
4. Rajender Singh @ Ravinder Singh (Acquitted)
S/o Mahender Singh
R/o Vill. Budhiana, PS Khurja,
Distt. Bulandshahar, U.P.
5. Dhan Parkash @ Vicky @ Dheeraj (Acquitted)
S/o Dharam Pal
R/o Village Bhalaswa Gaaj
PS Jabhreda, Distt. Haridwar
Uttranchal
6. Vijay Singh Rana @ Raju (Acquitted)
S/o Surender Singh
R/o 57, East Raj Putana,
B. T. Ganj, Roorkee
Distt. Haridwar, Uttranchal
7. Surender Singh Negi @ Suri (Acquitted)
S/o Gan Pat Singh
R/o Gokul Patti
Aswal Sayun
Distt. Pauri Garhwal
Uttranchal
8. Parveen Mittal (Acquitted)
S/o S. K. Mittal
R/o 77 East Amber Talab
Roorkee, Distt. Haridwar
Uttranchal
9. Amit Rathi (Acquitted)
S/o Subhash Chand
R/o Village Libbar Heri, PS Mangalore,
Distt. Haridwar, Uttranchal
State v. Sher Singh Rana & Ors. Page 2 of 217
10. Sharwan Kumar (Acquitted)
S/o Chander Bhushan
R/o Vill. Niwari, PS Makdoom Pur,
Distt. Jahanabad, Bihar
11. Keshav Chauhan (Acquitted)
S/o Hari Charan Chauhan
R/o Village Bigahi, PO Doman Pur
PS Chauri, Distt. Sant Ravi Dass Nagar
UP
12. Pardeep Singh (since expired)
S/o Motwar Singh
R/o Dunk Patti
Aswal Sayun
Distt. Pauri Garhwal
Uttranchal
APPEARANCES
Present : Sh. S.K. Saxena, Ld. Special PP for the State
alongwith Ms. Manisha Sharma, Advocate.
Sh. Mukesh Kalia, Ld. Counsel for accused Sher Singh
Rana, Rajbir Singh, Keshav Chauhan and Vijay Singh
Rana.
Sh. Rakesh Vats, Ld. Counsel for accused Shekhar Singh,
Parveen Mittal, Amit Rathi and Sharwan Kumar.
Ms. Sumita Kapil, Amicus Curiae for accused
Rajender Singh.
Sh. B.K. Kulshreshtha, Ld. Counsel for accused
Dhan Parkash and Surender Singh Negi
State v. Sher Singh Rana & Ors. Page 3 of 217
JUDGMENT
1. Briefly stated the case of prosecution as unfolded by the report u/s 173 Cr.P.C. is as under:
2. On 25.07.01 at about 1.30 PM the then Member of Parliament Smt. Phoolan Devi was shot dead just outside the main gate of her house i.e. 44 Ashoka Road by two assailants. Her PSO PW-73 Ct. Balender was also shot at but fortunately he survived the bullet injuries.
3. Ct. Balender however showed courage and retaliated by firing from his service revolver towards the assailants who in the meantime had fled away from the spot in a waiting green colour Maruti Car No. CIM-907. One of the bullet even hit the rear glass of the Maruti Car. The assailants also returned fire from the Car and in the process also managed to flee away.
4. The sister of Smt. Smt. Phoolan Devi namely PW-104 Munni Devi, personal staff of Smt. Phoolan Devi and PW-17 Uma Kashyap a visitor to the house of Smt. Phoolan Devi on that day helped in removing both Smt. Phoolan Devi and her PSO Ct. Balender to RML hospital after getting a passing by maruti van belonging to PW-164 Rajneesh Sharma stopped. In the meantime various messages about the shoot out were received at police control room which initially stated that some shoot out incident has taken place at Ashoka Road or that some lady has been shot.
State v. Sher Singh Rana & Ors. Page 4 of 2175. One chance witness namely, PW-129 Vinod Vishwanath, a scooterist also informed PW-24 ASI Shri Krishan who was on Traffic Control duty at near Gol Dak Khana that the assailants who had fired at near 44, Ashoka Road have left their Car near Pandit Pant Marg between Kothi No. 12 and 14 and had thereafter run away in a TSR bearing No. DL- IR-F-0235. The said message was also conveyed to police control room. ASI Shri Krishan in the meantime went near Pandit Pant Marg and saw one green colour Maruti Car No. CIM-907 parked over there with dark window panes. He also sent messages in this regard to the police control room.
6. PW-13 ASI Satish Joshi of PS Mandir Marg who was also on duty in the nearby area of Gol Dak Khana was also informed by one boy that 3 persons who had shot at a lady at Ashoka Road, after leaving their Car, had run away in a TSR from Pandit Pant Marg towards Krishi Bhawan. ASI Satish Joshi also thus went near the car and he too sent messages in this regard to the police control room. In the meantime PW- 167 Insp. G.L. Mehta, SHO PS parliament street also reached the spot. Since a Member of Parliament was shot at so a lot of hue and cry was raised and number of senior police officers also rushed to the spot. Insp. G.L. Mehta after making initial inquiry recorded statement (in Hindi) of one eye witness namely, PW-52 Kali Charan who was working as personal staff of Smt. Phoolan Devi. I am however reproducing here under the English translation of said statement of Kali Charan as has been mentioned in the charge sheet filed by the police since the contents of the said statement are going to be very relevant while appreciating the nature of evidence led by the police against various accused persons. The said State v. Sher Singh Rana & Ors. Page 5 of 217 English translation of the statement of Kali Charan as is mentioned in the charge sheet reads as follows:
"I am residing at the above given address and am associated with Smt. Smt. Phoolan Devi, MP Lok Sabha since 1997. I look after the work of the office at 44 Ashoka Road alongwith S. F.M. Dass, Personal Secretary. Today morning Smt. Uma Kashyap alongwith her husband and driver Pankaj reached here at about 10 AM by Car. All three of them walked in, while the Car remained parked outside the house. Smt. Smt. Phoolan Devi was cooking something in the kitchen. Seeing Smt. Kashyap, she came out, met them and took Smt. Kashyap inside the house. The husband of Smt. Kashyap and Pankaj sat with me in my office. Smt. Smt. Phoolan Devi, Member of Parliament, asked me to call for a mini bus from parliament house. I made a call and around 11 AM, a mini bus from Parliament House, came to the house but by that time Smt. Smt. Phoolan Devi was not ready, as such, the mini bus was sent back. After some time Smt. Smt. Phoolan Devi left for Parliament in the Car brought by Smt. Uma Kashyap. At that time PSO to Smt. Smt. Phoolan Devi Cost. Balender Singh was with her and Pankaj was driving the Car. Vivek, Munni Devi (sister of Smt. Smt. Phoolan Devi), Shiv Narain Cook, Uma Kashyap, her husband, Ram Chander Kahsyap (Gokul Puri, Delhi) and two persons from the Constituency of Smt. Smt. Phoolan Devi were present in the house. It was around 1.25/1.30PM, when I had finished my meal and after drinking water I came out from the office side. I saw that the PSO to Smt. Smt. Phoolan Devi was opening the gate and Smt. Smt. Phoolan Devi was standing outside. In the meantime two men aged about 25/30 yrs height about 5' 7", fair complexion, wearing jean and one was wearing printed shirt and the other who was wearing dark coloured pant started firing at Smt. Smt. Phoolan Devi. The bullets hit the head and breast of Smt. Smt. Phoolan Devi and bullets hit the PSO also. I ran towards the gate and saw those two running and escaping in a dark green coloured Maruti Car. The PSO also fired shots at the Car but the Car sped away towards Gole Dak Khana. I alongwith State v. Sher Singh Rana & Ors. Page 6 of 217 other inmates of the house got busy in taking care of Smt. Smt. Phoolan Devi and informed the police at 100 number from the office. PSO in his injured condition also followed me to office. Then I sent injured Smt. Smt. Phoolan Devi and the PSO to the Hospital in a Maruti Van stopped by the members of the family. I can identify these persons if they are brought before me. The man by the name of Pankaj who had already come to the house two three times with Smt. Uma Kashyap whom I know very well is missing since then with his vehicle. Now I have come to know that Smt. Smt. Phoolan Devi has died."
(emphasis supplied)
7. Insp. G.L. Mehta accordingly made his endorsement on the basis of said statement of Kali Charan and got a case registered at PS Parliament Street. The subsequent investigation was however transferred to the Crime Branch by the orders of Sr. Officers of police. PW-170 Insp. Suresh Kaushik of Crime Branch was thus entrusted with the subsequent investigation. In the meantime Smt. Phoolan Devi was declared brought dead by the doctors at RML hospital and they found around 10 fire arm injuries on her person. The condition of PSO Ct. Balender was also stated to be critical. The Doctors collected the clothes of Smt. Phoolan Devi which were on her body besides other jewellary articles and sealed them in different pullandas with the seal of RML hospital. The blood stained clothes of Ct. Balender were also taken into possession by the Doctors and were sealed in different pullandas with the seal of RML hospital. One service pistol of Ct. Balender with 8 live cartridges in magazine was also taken into possession. The doctors recovered about 5 bullets from the body and clothes of Smt. Phoolan Devi and one bullet was recovered from the body of Ct. Balender. The bullets were also collected and sealed in different State v. Sher Singh Rana & Ors. Page 7 of 217 pullandas.
8. Insp. Suresh Kaushik in the meantime inspected the place of incident and found a large quantity of blood lying around it. Two small bone pieces, one blood soaked dupatta and some empty cartridges were also found around the place beside one bullet lead. The crime team also reached the spot and inspected and took photographs of the place of incident. The car used by the assailants i.e. CIM-907 which was found abandoned at Pandit Pant Marg was also inspected. On the rear seat of the Car two monkey caps, one maroon and other dark green colour were lying besides two revolvers and twelve (12) live cartridges. Two bullet leads were also found in the rear left door of the car. One suitcase with some clothes was also found inside the Car. Though the finger print experts from CFSL lab CBI were able to lift 6 chance prints from the Car and especially from the rear view mirror at the spot itself but due to bad weather and lack of electricity the Car was taken to the office of DCP New Delhi on the advise of finger print experts from FSL Malviya Nagar. The car was driven by PW-162 SI Sanjeev Mandal from the spot to the office compound of DCP, New Delhi. Upon checking the two revolvers recovered from inside the Car, three live cartridges and three fired cartridges were recovered from one revolver on which words "WEBLEY & SCOTT LTD were written and six empty cartridges were recovered from the second revolver on which words "MADE IN INLEND" and "MADE IN INDLEN" were written. 12 live cartridges were also recovered from inside the Car. After preparing the sketch of the said revolver and cartridges so recovered they were taken into possession after sealing them into different pulandas by Insp. Suresh Kaushik. 3 chance finger prints were also recovered from each of the two State v. Sher Singh Rana & Ors. Page 8 of 217 revolvers.
9. Subsequently some other passerby also informed Insp. Suresh Kaushik that the 3 boys had run away in a TSR No. DL-1RF-0235. The charge sheet further states that during the course of further investigation, identity of one of the assailants was established as Sher Singh Rana @ Sheru @ Pankaj and that Car No. CIM-907 belonged to Sher Singh Rana only and that he had come to the house of Smt. Phoolan Devi alongwith PW-17 Uma Kashyap and her husband PW-18 Vijay Kashyap in the said car no. CIM-907 from Roorkee to Delhi on the morning of 25.07.2001. One police team headed by PW-113 Insp. Ran Singh was accordingly sent to Roorkee to apprehend accused Sher Singh Rana and in the meantime SI Manoj Kumar was deputed to trace out TSR No. DL 1RF 0235. PW-114 Bahadur Shah was found to be driving the said TSR when the said three boys sat in his TSR and who had thereafter got down after travelling to some distance in his TSR and even did not pay fare to him.
10. Subsequently on 27.07.01 it was reported in the media and which fact was later on confirmed by the Uttranchal police also that accused Sher Singh Rana who was wanted in the present case has been arrested in PS Dalanwala, Dehradun after he had addressed a Press Conference in Doon Press Club, Dehradun and had confessed that he alongwith one Rajender @ Ravinder had shot at Smt. Phoolan Devi and Ct. Balender. Accordingly Insp. Ran Singh who was already present in the area reached police station Dallanwala and arrested accused Sher Singh Rana and while keeping his face muffled he was brought to Delhi. Accused Sher Singh Rana thereafter made a disclosure statement which was State v. Sher Singh Rana & Ors. Page 9 of 217 reduced into writing. (The contents of the said disclosure statement were however later on found to be not correct. He had stated about one Rajender @ Ravinder being also involved in the shooting incident but said Rajender @ Ravinder was later on found to be lodged in Haridwar jail on the day of incident). On 28.07.01 he was produced in the Courts at Delhi and his 10 days police custody remand was taken. However accused Sher Singh Rana thereafter again made a disclosure statement and therein he spilled the beans of the entire controversy so conspired by him and his other associates. He disclosed about the involvement of one Rajbir, Shekhar, Dhan Parkash, Parveen Mittal, Amit Rathi, Vijay Singh, Rajender, Surender, Sharwan Kumar and Pardeep in the conspiracy.
11. Subsequently on 30.07.01 Rajender Singh @ Ravinder S/o Shri Mohinder Singh , Shekhar Singh S/o Rajpal Singh and Rajbir Singh S/o Shri Jagat Singh were arrested by the police of Saharanpur, UP while they were approaching the Court Complex Saharanpur for surrender. At their instance one white Maruti Car No. UP 14B 7559 was also recovered. Six chance finger prints were also lifted from the car. It was disclosed by the accused persons that the said Car was being driven by accused Rajbir Singh at the time of incident i.e. when Smt. Phoolan Devi was shot dead and the said Car was to be used as a backup Car so that the other co- accused persons could flee away in it after the commission of offence. Besides accused Sher Singh Rana who had fired at Smt. Phoolan Devi, accused Dhan Parkash was found to be the other assailant who had fired at Ct. Balender and accused Shekhar was the third person who was driving Car No. CIM-907 in which the two assailants fled away from the spot. It also came to the knowledge of police that accused Rajender @ State v. Sher Singh Rana & Ors. Page 10 of 217 Ravinder at the time of incident was infact lodged in jail in Haridwar in an Excise Act case and infact a very deep rooted conspiracy was planned to create evidence so as to provide a false plea of alibi for the accused persons by showing them to be in jail at the time of incident.
12. It was also found that it is for this reason only that accused Sher Singh Rana claimed in his press conference at "Doon Press Club"
that in the incident in question one Rajender was his associate so that later on during the course of trial the claim of police could be falsified by showing that accused Rajender was lodged in jail as on the date of incident. During subsequent investigation it was also found that accused Sher Singh Rana had also created false evidence by getting one of his employee Sharwan Kumar lodged in jail in his name as Sher Singh Rana in one already pending case against him under Excise Act at Haridwar. The sole intention was again to create a false plea of alibi to show that Sher Singh Rana himself was also lodged in jail at the time of incident. As a part of the said conspiracy both accused Sharwan Kumar who was in jail while impersonating himself as Sher Singh Rana and Rajender were got bailed out on 26.07.01 i.e. one day after the incident took place. The charge sheet further states that during the course of subsequent investigation it also came to light that one old friend of accused Sher Singh Rana namely Parveen Mittal who was a practicing Advocate at Roorkee Court was also an active member of the conspiracy. It was accused Parveen Mittal who gave all such advise of creating false plea of alibi to accused Sher Singh Rana and his associates so that they may escape punishment from the Court of law. It also came to light that at the asking of accused Sher Singh Rana accused Parveen Mittal had made available one State v. Sher Singh Rana & Ors. Page 11 of 217 revolver labelled "MADE IN INLEND" to him knowing fully well that the same is going to be used in committing murder of Smt. Phoolan Devi.
13. As regards the motive to commit the murder of Smt. Phoolan Devi it came to the knowledge of police that accused Sher Singh Rana was an ambitious person right from his college days. Sher Singh Rana belonged to Thakur community which was against Smt. Phoolan Devi as she had killed 22 Thakurs in the ill-famous "Behmai killing". Accused Sher Singh Rana thus wanted to avenge the said massacre of Thakurs by Smt. Phoolan Devi and in the process wanted to become a self proclaimed leader of Thakur community and to also earn fame and money by short cut methods. He also assured the other conspirators that once he establishes himself in the political arena then he will help them in their lives. It also came to the knowledge of police that the said conspiracy which was primarily in the mind of accused Sher Singh Rana was being hatched by him over a long period of time and in order to arrange finance for it he alongwith other associates committed two acts of robbery in the year 2000 and 2001 wherein Rs. 10 lacs and Rs. 15 lacs respectively were looted from two banks. It was also found that from the said looted amount accused Sher Singh Rana got a country liquour vend alloted in the name of one of his friend PW-62 Pankaj Kalra so that more money could be generated in order to execute the murder of Smt. Phoolan Devi. Police also came to know that accused Sher Singh Rana had initially developed close relations with Smt. Phoolan Devi by visiting her house frequently with one Uma Kashyap and her husband Vijay Kahsyap. Uma Kashyap was a social worker from Haridwar area and was a worker of "Eklavya Sena" a party floated by Smt. Phoolan Devi. It also came to the knowledge of police State v. Sher Singh Rana & Ors. Page 12 of 217 that prior to house no. 44, Ashoka Road Smt. Phoolan Devi was residing at Chitranjan Park and even there accused Sher Singh Rana had carried out a survey of the area by staying in one "Amantaran guest house" near the house of Smt. Phoolan Devi but did not find the time and place to be suitable to commit her murder.
14. The charge sheet further states that the subsequent investigation also showed that yet one other revolver was purchased by accused Sher Singh Rana from one Amit Rathi who was the owner of "Subhash Gun House" in Roorkee and was an old friend of accused Sher Singh Rana. Later, on the advise of accused Parveen Mittal, accused Sher Singh Rana with the help of Amit Rathi also got the grooves of the revolvers tampered with so that later on when the revolvers are recovered than the same could not be co-related with the fired bullets. It also came to the notice of police that the younger brother of accused Sher Singh Rana namely Vijay Singh @ Raju was assigned the role of getting Sharwan Kumar and Rajender who were lodged in jail, bailed out by furnishing fake sureties and false documents. He was also told to flee away alongwith other family members soon after the incident and which role he actually played soon after the incident. The police also found that in order to execute the plan accused Sher Singh Rana had also arranged a mobile phone no. 9837237160 and had also checked on 24.07.01 that Smt. Phoolan Devi was available at her house since the Parliament was in session during those days. He had accordingly requested Uma Kashyap and her husband Vijay Kashyap to come to Delhi alongwith him to the house of Smt. Phoolan Devi and had accordingly taken them in his Car No. "CIM-907" on that day from Roorkee to Delhi. His three other co-
State v. Sher Singh Rana & Ors. Page 13 of 217conspirators Shekhar Singh, Rajbir Singh and Dhan Parkash were travelling in one other white Maruti Car number UP-14B-7559. Prior to it accused Sher Singh Rana had also purchased two country made pistols with live cartridges from one mustkeem.
15. Thus on 25.07.2001 while Sher Singh Rana himself was carrying mobile phone number 9837237160 another mobile phone No. 9837222779 was with accused Rajbir who was travelling with Shekhar and Dhan Parkash in the other white Maruti Car. Mobile Phone no. 9837222779 belonged to PW-3 Kovid Batra a friend of accused Sher Singh Rana and from whom the mobile phone was borrowed by Vijay Singh @ Raju, the younger brother of accused Sher Singh Rana. Thus accused Sher Singh Rana was in constant touch with the occupants of the other Car on his way from Roorkee to Delhi. However at Gaziabad accused Sher Singh Rana and Rajbir changed their SIM cards and accused Sher Singh Rana started using no. 9811374806 and accused Rajbir started using no. 9811374810. The said two SIMS were got arranged through Shekhar Singh who purchased them in Delhi.
16. After reaching the house of Smt. Phoolan Devi accused Sher Singh Rana who was a regular visitor to her house and was also well known to the family members and personal staff of Smt. Phoolan Devi was asked by Smt. Phoolan Devi to drop her at Parliament house as her own Car was not available with her on that day. Accordingly after dropping Smt. Phoolan Devi and her PSO outside the gate of Parliament House accused Sher Singh Rana returned back and alongwith accused Dhan Parkash and Shekhar and started waiting for the return of Smt. Phoolan Devi while State v. Sher Singh Rana & Ors. Page 14 of 217 sitting in his Car no. CIM-907 parked on the road outside the house of Smt. Phoolan Devi. When at about 1.30 AM Smt. Phoolan Devi alongwith her PSO returned in the Car of one other Member of Parliament and when after getting down from the Car outside her house was in the process of entering inside her house than both accused Sher Singh Rana and Dhan Parkash started firing towards them. In the meantime accused Shekhar reached near the gate with Car No. CIM-907 and all three fled away in it.
17. However for some reason accused Rajbir who was to provide back up in the other White Maruti Car could not follow Car No. CIM-907 and thus the three persons had to flee away in a TSR No. DL-1RF-0235 of PW-114 Bahadur Shah after leaving their Car on Pandit Pant Marg. On the way while accused Shekhar got down from the TSR at near Mandi House accused Sher Singh Rana and Dhan Parkash also left the TSR after some further distance and boarded a bus and thereafter went separately. While accused Shekhar left for some unknown place, accused Sher Singh Rana in the meantime reached Ghaziabad and on the way he contacted accused Rajbir Singh on his mobile phone and told him to meet him at Ghaziabad.
18. Later on accused Shekhar Singh also contacted accused Sher Singh Rana on his mobile phone from a PCO in Meerut and he was also accordingly picked up by them from near Meerut by-pass in the said Maruti Car being driven by Rajbir Singh. All three first went to Haridwar and stayed at hotel "Pramila" where accused Sher Singh Rana made an entry in the name of Anoop Singh in the register of the hotel. In the meantime accused Pardeep stood surety for Sharwan Kumar in the Court at Haridwar impersonating as Vijay Singh and also furnished false State v. Sher Singh Rana & Ors. Page 15 of 217 documents of Scooter No. UP 10A 9630. One Surender Singh and Rajbir Singh however stood surety for accused Rajender while impersonating as Virender Giri and Shekhar Singh and also furnished false documents of Scooter No. UP 10B 9577 and UP 10 B 3007 respectively. On the night of 26.07.01 accused Sher Singh Rana, Rajbir Singh, Rajender and Shekhar Singh stayed at hotel "Ganga View" at Rishikesh Road, Haridwar and entries in the registers of the hotels were made by Shekhar Singh. Thereafter on 27.07.01 they all reached Dehradun and where accused Sher Singh Rana addressed a Press Conference at "Doon Press Club"
confessing his role in the murder of Smt. Phoolan Devi. He further stated in the Press Conference that one Rajender @ Ravinder was the other assailant with him who had fired on Ct. Balender. It was soon after the Press Conference that the police of PS Dallanwala arrested him just outside the Press Club.
19. The charge sheet further states that in the meantime on 30.07.01 PW-160 Umed Singh husband of Smt. Phoolan Devi informed IO Inspector Suresh Kaushik in writing that two country made pistols were lying in the garage of house no. 44, Ashoka Road. He further stated that he was told about the said Kattas by PW-127 Ram Chander Kashyap who in turn was told about it by PW-141 Ranjit Kumar who had seen the said two country made pistols lying in the garage. However it was revealed that one Keshav Chauhan a visitor to the house of Smt. Phoolan Devi had picked up the said pistols from the spot soon after the incident. The said two kattas were also taken into possession by the police from inside the garage. Thereafter on 07.08.01 accused Sher Singh Rana was arrayed for TIP but he refused to participate therein. In the meantime accused Amit State v. Sher Singh Rana & Ors. Page 16 of 217 Rathi, Parveen Mittal and Keshav Chauhan also came to be arrested on 02.08.01. Accused Dhan Parkash was however arrested from Roorkee on 04.08.01 by Insp. K.P. Singh and he also refused to participate in TIP when produced in the Courts at Delhi on 05.08.01. Thereafter on 08.08.01 accused Pardeep Singh and Surender Singh were also arrested at PS Shampur, Haridwar and accused Vijay @ Raju was arrested on 10.08.01. Accused Sharwan Kumar however could not be arrested and was accordingly got declared a proclaimed offender. The charge sheet further states that in the mean time the identity of accused Sher Singh Rana, Rajbir, Dhan Parkash and Shekhar Singh was got established by way of photo TIP from Ct. Balender and TSR driver Bahadur Shah and ASI Sri Krishan as even accused Rajbir was seen by ASI Shri Krishan on 25.07.01 while standing near Pandit Pant Marg with white Maruti Car no. UP-14B- 7559. ASI Shri Krishan had initially tried to challan accused Rajbir on the ground of wrong parking but let him off when accused Rajbir pleaded for forgiveness stating that he was new to Delhi. ASI Sri Krishan had however noted down the number of the car on the cover page of his challan book.
20. Subsequently the specimen finger impressions of the accused persons were taken besides their specimen hand writing and signatures for comparison with the chance finger prints lifted from the two Cars and the revolvers besides with various registers of the hotels where accused persons had stayed soon after the incident or the record of the Courts at Haridwar or that of Haridwar jail. While chance prints lifted from Webley & Scott labelled revolver tallied with that of accused Dhan Parkash @ Vicky, the other three chance prints recovered from the other revolver labelled "made in Inlend" tallied with that of accused Sher Singh Rana. Four out of State v. Sher Singh Rana & Ors. Page 17 of 217 the six chance prints lifted from Car No. UP 10B 3007 tallied with that of accused Rajbir Singh. It was also found that the thumb impression of accused Sher Singh Rana did not tally with the thumb impression as was there in the register of Haridwar jail wherein he was shown to have been lodged. (Later on in the year 2004 when accused Sharwan Kumar was arrested then his thumb impression were also taken and the same tallied with the one which were there on the judicial file in the Courts at Haridwar and also with the Haridwar jail record.) This fact lent support to the conclusion of the police that accused Sher Singh Rana had infact tried to create a false plea of alibi by getting accused Sharwan Kumar lodged in the jail impersonating as accused Sher Singh Rana. The Constables posted in the court of Ld. ACJM, Haridwar or at the Haridwar jail also confirmed that Sher Singh Rana was not the person who was lodged in the jail. As regards the bullets recovered from the body of Smt. Phoolan Devi and her PSO Ct. Balender the Ballistic expert report confirmed that the same were fired from the two revolvers or kattas so recovered. It was also found that in order to mislead the police accused Rajender had deliberately about 15 days prior to the incident got himself arrested in an Excise Act case at Haridwar while carrying a can of liquour. On the other hand Surinder Singh Rana father of accused Sher Singh Rana had intentionally moved an application in an Excise Act case already pending against Sher Singh Rana before the courts at Haridwar seeking withdrawal of his surety and thereby facilitating the arrest of accused Sharwan Kumar on 18.07.01 impersonating as Sher Singh Rana.
21. The charge sheet further states that mustkeem from whom accused Sher Singh Rana had procured two kattas was found to be lodged State v. Sher Singh Rana & Ors. Page 18 of 217 in Muzaffar Nagar jail in a case of PS Kotwali, Muzaffar Nagar and was accordingly interrogated over there in the jail itself. However strangely the charge sheet further states that mustkeem or Surinder Singh Rana, the father of Sher Singh Rana were not charge-sheeted as sufficient evidence could not come on record. (Page 33 of the charge-sheet)
22. Thus initially charge sheet was filed against 11 accused persons namely Sher Singh Rana @ Sheru @ Pankaj, Shekhar Singh Panwar, Raj Bir Singh, Rajender Singh @ Ravinder Singh, Dhan Parkash @ Vicky @ Dheeraj, Vijay Singh @ Raju, Pardeep Singh, Surinder Singh Negi @ Suri, Parveen Mittal and Amit Rathi and Keshav Chauhan with accused Sharwan Kumar shown as proclaimed offender. However subsequently accused Sharwan Kumar also came to be arrested on 10.07.2004 and a supplementary charge sheet was filed against him.
23. After due compliance of S. 207 Cr.PC various charges were framed against the accused persons vide order dated 17.09.2002 by the then Ld. Predecessor of this Court to which they all pleaded not guilty and claimed trial.
24. After filing of the supplementary charge sheet against accused Sharwan Kumar charges were also farmed against him by, the then, Ld. Predecessor of this Court vide order dated 01.02.2005. He also however pleaded not guilty to the charges so framed and claimed trial.
25. In order to present a comprehensive view of the charges so framed against various accused persons by the then Ld. Predecessors the same have been reproduced hereinafter in a tabular form:State v. Sher Singh Rana & Ors. Page 19 of 217
S. Name of CHARGES FRAMED
No accused
(I) (II) (III) (IV)
1 Sher Singh U/s 120-B r/w Sections U/s 302/307 U/s 193 IPC,
Rana @ Sheru 302/193/419/468/471 IPC r/w S. 34 IPC U/s 302, 307
@ Pankaj and Section 25/27 of Arms Act r/w S. 34 IPC
& 25 (1B)/27
Arms Act
2 Shekhar Singh U/s 120-B r/w Sections U/s 302/307 U/s 302, 307
Panwar 302/193/419/468/471 IPC r/w S. 34 IPC r/w S. 34 IPC
and Section 25/27 of Arms Act
3 Raj Bir Singh U/s 120-B r/w Sections U/s 302/307 U/s 419/468 U/s 302,
302/193/419/468/471 IPC r/w S. 34 IPC and u/s 471 307 r/w S.
and Section 25/27 of Arms Act r/w S. 468 34 IPC
IPC
4 Rajender Singh U/s 120-B r/w Sections
@ Ravinder 302/193/419/468/471 IPC
Singh and Section 25/27 of Arms Act
5 Dhan Parkash U/s 120-B r/w Sections U/s 302/307 U/s 302/307 U/s 307
@ Vicky @ 302/193/419/468/471 IPC r/w S. 34 IPC r/w S. 34 IPC IPC, 25
Dheeeraj and Section 25/27 of Arms Act (1B)/27
Arms Act
6 Vijay Singh @ U/s 120-B r/w Sections
Raju 302/193/419/468/471 IPC
and Section 25/27 of Arms Act
7 Pardeep Singh U/s 120-B r/w Sections U/s 419/468
302/193/419/468/471 IPC and u/s 471
and u/s 25/27 of Arms Act and r/w S. 468
IPC
8 Surinder Singh U/s 120-B r/w Sections U/s 419/468
Negi @ Suri 302/193/419/468/471 IPC IPC
and Section 25/27 of Arms Act
9 Parveen Mittal U/s 120-B r/w Sections 25 (1B) Arms
302/193/419/468/471 IPC Act
and Section 25/27 of Arms Act r/w section
29 Arms Act
10 Amit Rathi U/s 120-B r/w Sections 25 (1B) Arms
302/193/419/468/471 IPC Act
and Section 25/27 of Arms Act r/w section
29 Arms Act
11. Keshav U/s 201 IPC
Chauhan
SUPPLEMENTARY CHARGE SHEET
12. Sharwan U/s 120B r/w Section 302/193/419/468/471 and u/s 25/27 Arms Act and
Kumar 419/468/193 IPC
State v. Sher Singh Rana & Ors. Page 20 of 217
26. Prosecution thereafter in order to prove its case examined 171 witnesses. The accused persons were thereafter examined u/s 313 Cr.PC. They however examined five (5) witnesses in their defence. Five (5) witnesses were however also examined as Court witnesses.
27. It will be also worthwhile to mention over here that during the course of trial one of the accused namely "Pardeep" expired and the proceedings against him accordingly stood abated.
28. Before adverting further I may state that while narrating the facts as are emerging from the charge sheet filed by the police, I have consciously reproduced certain portions of the charge sheet verbatim by using the phrase "The further investigation revealed ...........". The primary reason for reproducing the facts in the aforesaid manner was that the said aspect of further investigation however could not be co-related to a large extent with the nature of investigation carried out or the evidence so collected and led on record by the prosecution. To support my aforesaid preposition I shall be discussing in detail herein after the nature of evidence which was collected by the investigating agency during the course of investigation and as was subsequently led by the prosecution vis-a-vis various circumstances sought to be proved by the prosecution.
29. At this stage I would also like to mention as to how I intend to discuss the prosecution evidence in the present case against various accused persons since the prosecution has examined as many as 171 witnesses.
30. Beside the evidence of complainant PW-52 Kali Charan, PW-State v. Sher Singh Rana & Ors. Page 21 of 217
73 Ct. Balender, PW-104 Munni Devi, PW-114 Bahadur Shah and PW-129 Vinod Vishwanath, who all claimed to have seen the assailants, the prosecution case primarily rests upon circumstantial nature of evidence. Thus I would be first delineating the various incriminating circumstances by virtue of which the prosecution has sought to connect each of the accused persons with the offence in question. Thereafter I shall be discussing the evidence led by the prosecution qua each of the said circumstances against various accused persons and shall also be discussing alongside as to whether the prosecution has been successful in proving each of the said circumstances by some legally admissible evidence or not.
31. The deposition of five (5) defence witnesses or that of five (5) Court witnesses shall also be discussed alongside wherever found relevant. After this microscopic analysis of the various circumstances on the touchstone of "legally admissible evidence", I shall be discussing the said proved circumstances if any, comprehensively to assess as to whether they form such a continuous chain of circumstances which may lead to only one conclusion which is consistent with the guilt of the accused persons or whether they are explainable on any other hypothesis consistent with the innocence of the accused persons.
32. At this stage I would like to mention certain observations of Hon'ble Apex Court which have been reiterated by Hon'ble Delhi High Court also recently in the case "Vishal Yadav v. State of U.P., Crl. A. 741/2008 D.O.D. 02.04.2014" .
"Justice to all - the accused, the society as well as a fair chance to prove to the prosecution - is not only an State v. Sher Singh Rana & Ors. Page 22 of 217 integral part of the criminal justice system but it is its prime objective. This finds reiteration by the Supreme Court of India in the judgment reported at (2012) 8 SCC 263, Dayal Singh and Ors. v. State of Uttaranchal when the court emphasized thus:
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape.
Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a ―fair trial, the Court should leave no stone unturned to do justice and protect the interest of the society as well."
33. Thus the very objective of a criminal trial is to ensure that a fair trial is made available not only to the state being represented by the prosecution but also to the accused persons. The said principal of fair trial however has its basis in the rule of law. The rule of law per-supposes that the State place before the Court all such facts and circumstances which come up during the course of investigation even though the said facts and circumstances may or may not support the case of the prosecution or in other words those circumstances also which may favour the accused. Similar is the duty of Ld. Defence Counsel to place all such facts as are available with them before the Court of law and thereby leaving it to the Court to draw a conclusion as to the guilt or innocence of the accused State v. Sher Singh Rana & Ors. Page 23 of 217 persons. Any dereliction on this account either by the prosecution or by the defence Counsel strikes at the very roots of the functioning of criminal justice administration system.
34. The rule of law per-supposes that any evidence sought to be led by the prosecution against the accused must be held to be admissible under the substantive as well as procedural law of the land. Thus not only the trial of a criminal case is to be carried out in accordance with the provisions of Code of Criminal Procedure but also the evidence led should confirm to the principles of Indian Evidence Act, 1872 (In short hereinafter referred to as "Evidence Act"). However if some evidence has been led on record which is contrary to the provisions of Evidence Act, then the question arises as to whether the said evidence can be read against the accused persons or not.
35. My subsequent discussion is going to high light the importance of the aforesaid preposition as I have found that some evidence led by the prosecution is not in accordance with the provisions of Evidence Act and the question which will arise is as to what weight can be given to such evidence.
36. I am accordingly now delineating the various incriminating circumstances through which prosecution seeks to prove its case against different accused persons. However alongside the said incriminating circumstances I have also mentioned names of some of the prosecution witnesses through whom the prosecution has primarily attempted to prove the said circumstances. The deposition of these witnesses shall be State v. Sher Singh Rana & Ors. Page 24 of 217 discussed and analyzed keeping in view the deposition of other prosecution witnesses also and especially that of various police officers who have been associated with the investigation. I have however eschewed their reference alongside each of the circumstances mentioned below for the sake of brevity.
37. However at the end of the following list of circumstances as are emerging from the case of prosecution I shall be mentioning the names of all the prosecution witnesses (171) beside the defence witnesses (5) and the Court witnesses (5) examined during the course of present long trial in a tabulated form for a ready reference.
Accused Sher Singh Rana He is stated to be the mastermind of the entire conspiracy.
MOTIVE
(i) Accused Sher Singh Rana was an ambitious person. He even contested elections of the student union in his School and College and was desirous of acquiring name and fame early in his life even though by adopting short cut methods. (PW3-Kovid Batra, PW-22 Javed Khan, PW- 30 Raja Kumar, PW-94 Anurag Tyagi)
(ii) Accused Sher Singh Rana not only wanted to avenge the killing of thakurs by Smt. Phoolan Devi in the Bhamai Massacre but also wanted to earn leadership of the Thakur community by committing some sensational act. (PW-140 Advocate Rajesh Rastogi, PW-123 ASI Braham Prakash) State v. Sher Singh Rana & Ors. Page 25 of 217 Preparation
(iii) In order to arrange finance accused Sher Singh Rana alongwith his associates committed two bank robberies in Haridwar area in the year 2000 and 2001 and robbed a sum of Rs. 10 lacs and Rs. 15 lacs respectively. (PW-53 HC V. K. Tyagi, PW-98 HC Vishal Mani)
(iv) In order to generate more finances he got a liquour vend allotted in the name of one of his friend PW62 Pankaj Kalra at Tejupur Roorkee by investing the proceeds of crime of the aforesaid two robbery cases. He also employed co-accused Sharwan Kumar, Pardeep and Surender in the said liquour vend who were associated with him later on in the present conspiracy. (PW-41 A. K. Sharma, PW-62 Pankaj Kalra, PW-130, Ompal, PW-99 Sanjay Kumar)
(v) He obtained legal advise from his friend Parveen Mittal (co- accused) who was a practising Advocate at Roorkee as to how to meticulously carry out the plan to murder Smt. Phoolan Devi and later on how to escape away from the punishment. (PW-62 Pankaj Kalra, DW-1 accused Parveen Mittal himself, PW-170 ACP Suresh Kaushik).
(vi) He also procured one revolver make "MADE IN INLEND" from his co-accused Parveen Mittal so as to use it in achieving the objective of criminal conspiracy. He infact used it to commit murder of Smt. Phoolan Devi. (PW-62 Pankaj Kalra)
(vii) He also obtained yet one other revolver make "WEBLEY & SCOTT" from one of his friend co-accused Amit Rathi owner of "Subhash State v. Sher Singh Rana & Ors. Page 26 of 217 Gun House" in Roorkee. He also got the grooves of the revolver tampered with through one Afaq Ahmed a worker in the shop of Amit Rathi so as to avoid its linkage with the bullets to be fired from it. (PW-70 Afaq Ahmed)
(viii) He developed intimacy with one Uma Kashyap and her husband Vijay Kashyap through co-accused Rajbir so as to have access to the house of Smt. Phoolan Devi. (PW-17 Uma Kashyap, PW-18 Vijay Kashyap)
(ix) He did a survey of the house of Smt. Phoolan Devi when she was residing at Chitranjan Park and stayed at "Aamantaran Guest House"
for three days but did not find the time and place to be suitable to murder her. (PW 1 Nirmal Chandra Sarbajna and PW-30 Raja Kumar).
(x) He joined his brother Vijay Singh besides accused Shekhar, Dhan Parkash, Surender Singh, Sharwan Kumar, Pardeep Singh, Rajbir, Rajender Singh, all his prior acquaintances in the conspiracy to commit murder of Phoolan Devi and that of her PSO Ct. Balender while assuring all the co-accused persons of help in their future life once he himself got settled in the politics. (PW-62 Pankaj Kalra)
(xi) He alongwith his other co-associates held a meeting at his house wherein all the plans to carry out the conspiracy to commit murder of Smt. Phoolan Devi and her PSO Ct. Balender were discussed and specific roles were assigned to different persons. (PW-62 Pankaj Kalra)
(xii) In furtherance of the common object of the said criminal conspiracy he advised Rajender @ Ravinder to get himself arrested in State v. Sher Singh Rana & Ors. Page 27 of 217 some case in Haridwar and to get himself released on bail after the incident. (PW-34 SI Inder Singh, PW-39 Ct. Ashwani Kumar, PW-40 Ct.
Narinder Singh, PW-42 Virender Giri, PW-62 Pankaj Kalra, PW-85 Ganga Ram, PW-119 Rajender Prasad Sharma and PW-120 Anil Kumar)
(xiii) He asked co-accused Surender and Rajbir Singh to stand sureties for accused Rajender @ Ravinder under fake identity and on the basis of false documents. (PW-119 Rajender Prasad Sharma, PW-120 Anil Kumar and PW-144 Satish Chaudhary, Advocate)
(xiv) He asked Sharwan Kumar to get himself arrested by impersonating himself as Sher Singh Rana in an already pending case under Excise Act against accused Sher Singh Rana in the court of Ld. ACJM-1, Haridwar and in order to facilitate the same asked his father to withdraw his surety so that Sharwan Kumar may go to jail as Sher Singh Rana. (PW-83 SI Hushiaar Singh, PW-85 Ganga Ram, PW-119 Rajender Prasad Sharma, PW-120 Anil Kumar, PW-138 Advocate Ramesh Chander Aggarwal, PW-139 Laxman Singh and PW-144 Advocate Satish Chaudhary)
(xv) He procured two country made pistols from one mustkeem. (PW-158 Inspector Vishnu Chand Gautam) (xvi) He purchased mobile phone number 9837237160 from PW- 94, Anurag Tyagi (PW-169 Rajender Kumar Tiwari and PW-171 Vivek Malhotra) State v. Sher Singh Rana & Ors. Page 28 of 217 (xvii) He asked Dhan Parkash to procure two mobile phone numbers from Delhi viz. 9811374806 and viz. 9811374810. (PW-102 Gulshan Arora) (xviii) He asked his younger brother Vijay @ Raju to make necessary arrangements initially for the arrest of Sharwan Kumar as accused Sher Singh Rana in the Court and later on after the murder of Smt. Phoolan Devi to got both Sharwan Kumar and Rajender @ Ravinder released on bail on the basis of fake sureties and to also flee away with other family members from the house with Pankaj Kalra. (PW-139 Laxman, PW-144 Advocate Satish Chaudhary, PW-62 Pankaj Kalra) (xix) Through Vijay @ Raju he got arranged one more mobile phone no. 9837222779 which Vijay borrowed from his friend Kovid Batra (PW-3 Kovid Batra).
(xx) He asked Pankaj Kalra another friend of his (whom he had initially persuaded to join the conspiracy but he did not agree) to also flee away after the incident alongwith his brother Vijay Singh. (PW-62 Pankaj Kalra) (xxi) He stole one white Maruti Car bearing No. UP-14B 7559 with an intention to use it as a backup Car at the time of incident so as to facilitate their escape from the spot after the incident. (PW-24 ASI Sri Krishan and PW-97 Jeet Singh and PW-150 Binay Kumar Mishra).
State v. Sher Singh Rana & Ors. Page 29 of 217Incident dated 25.07.2001 (xxii) After ensuring that Smt. Phoolan Devi was in Delhi on 25.07.01 Sher Singh Rana persuaded Uma Kashyap and her husband Vijay Kashyap to come to Delhi alognwith him to the house of Smt. Phoolan Devi and thus came to Delhi alongwith them on 25.07.01 in Maruti Car No. CIM-907. (PW-17 Uma Kashyap, PW-18 Vijay Kashyap, PW-52 Kali Charan, PW-104 Munni Devi, PW-73 Ct. Balender) (xxiii) He asked his three other co-accused Shekhar Singh, Rajbir and Dhan Parkash to follow in another Maruti Car NO. UP 14B 7559 and on the way to Delhi he remained in constant touch with them on mobile phone. (PW-17 Uma Kashyap, PW-18 Vijay Kashyap, PW-102 Gulshan Arora).
(xxiv) On reaching Ghaziabad he as well as accused Rajbir Singh both changed their SIM cards and started using SIM No. 9811374806 & 9811374810. (PW-102 Gulshan Arora, the nodal officer ESSAR) (xxv) On the asking of Smt. Phoolan Devi he dropped her and her PSO Ct. Balender to Parliament in the morning hours as the Car of Smt. Phoolan Devi was not available. (PW-52 Kali Charan, PW-104 Munni Devi and PW-73 Ct. Balender) (xxvi) Thereafter he alongwith co-accused Dhan Parkash and Shekhar waited in his Car No. CIM-907 outside the house of Smt. Phoolan Devi i.e. 44 Ashoka Road, New Delhi and asked Rajbir to remain present with the other White Maruti Car nearby and to prove it as a back up vehicle State v. Sher Singh Rana & Ors. Page 30 of 217 after the incident to facilitate their escape. (PW-24 ASI Sri Krishan, PW-73 HC Balender, and PW-97 Jeet Singh) (xxvii) At about 1.30 PM when Smt. Phoolan Devi returned from Parliament alognwith his PSO Ct. Balender both accused Sher Singh Rana and Dhan Parkash came out of the Car and while he fired at Smt. Phoolan Devi initially from country made pistol and thereafter from the revolver "MADE IN INLEND" his co-accused Dhan Parkash fired at Ct. Balender initially with a country made pistol and thereafter with revolver make "WEBLEY & SCOTT" resulting in the death of Smt. Phoolan Devi and grievous injuries to Ct. Balender. They both also dropped the two country made pistols on the spot itself. (PW-6 Surinder Sharma, PW-52 Kali Charan, PW-73 Ct. Balender, PW-104 Munni Devi and PW-129 Vinod Vishwanath) (xxviii) He alongwith accused Dhan Parkash thereafter fled away from the spot in Maruti Car No. CIM-907 being driven by accused Shekhar and when Ct. Balender fired at their Car then he and his associates retaliated by firing from inside the Car. The firing resulted in bullet marks on the rear glass of the Car. (PW-52 Kali Charan, PW-104 Munni Devi, PW-73 Ct. Balender, PW-129 Vinod Vishwanath, PW-13 ASI Satish Joshi and PW-24 ASI Sri Krishan) (xxix) He and his associates left Car no. CIM-907 near Pandit Pant Marg and as the backup Car being driven by accused Rajbir Singh was not available so they boarded a TSR No. DL 1R 0235 being driven by PW Bahadur Shah and after some distance they alighted from it and went in State v. Sher Singh Rana & Ors. Page 31 of 217 different directions. (PW-129 Vinod Vishwanath, PW-114 Bahadur Shah) (xxx) While his co-accused persons went in different directions Sher Singh Rana himself went to Ghaziabad. On the way he rang up accused Rajbir Singh on his mobile phone and asked him to meet at Ghaziabad and thereafter travelled in the other white Maruti Car from Ghaziabad towards Haridwar. Accused Shekhar Singh in the meantime rang up accused Sher Singh Rana from a PCO at Meerut and decided to meet them at Meerut by-pass and all three thereafter went towards Haridwar. (PW-102 Gulshan Arora) (xxxi) At Haridwar he and his associates stayed at hotel Pramila and where accused Sher Singh Rana made an entry in the hotel register impersonating himself as Anoop Singh and thereafter at hotel Gangaview, Rishikesh Road, Haridwar on 25.07.01 and 26.07.01 (PW-107 Survir Singh, PW-116 Deepak Purohit and PW-124 Babu Ram Dubey) (xxxii) On 27.07.01 accused Sher Singh Rana addressed a Press Conference at Doon Press Club and confessed that he alognwith Rajender @ Ravinder had killed Smt. Phoolan Devi. Soon after the Press Conference he was arrested by the police of Dallanwala, Dehradoon and was handed over in the custody of Delhi police. After his arrest by the police of PS Dallanwala he again admitted before Press Reporters that he has killed Phoolan Devi. His statement regarding involvement of Rajender in the present incident was also found to be false. (PW-86 Surinder Kapoor, PW-87 Kishore Arora and PW-89 Rajesh Sharma, PW-113 Insp. Ran Singh and PW-146 Insp. Parikshit) State v. Sher Singh Rana & Ors. Page 32 of 217 (xxxiii) He was brought to Delhi and was produced in the court and was remanded to 10 days police custody. He thereafter made a disclosure statement wherein he spilled the beans of the entire conspiracy besides pointing out the place of incident and other places where he alongwith his other associates had gone after the incident. (PW-113, Insp. Ran Singh, PW-170 Inspector Suresh Kaushik) (xxxiv) He got recovered VCD of the film "Bandit Queen" from his house beside one diary wherein numbers of co-accused Parveen Mittal and Amti Rathi were found written by him. (PW 131 Insp. Satish Sharma and PW-152 Insp. Rajender Bhatia) (xxxv) He was arrayed for TIP on 07.08.01 but he refused to participate in it. (PW-170 ACP Suresh Kaushik) (xxxvi) The TSR driver Bahadur Shah in which accused Sher Singh Rana alongwith Shekhar Singh and Dhan Parkash had fled away identified accused Sher Singh Rana as one of the three boys who had boarded his TSR on that day from his photograph when shown to him having been mixed with photographs of 7 other persons. (PW-114 Bahadur Shah) (xxxvii) PW Ct. Balender who was injured in the incident also identified him from his photograph as one of the assailants and being already known to him. (PW-73 Ct. Balender) (xxxviii) PW-52 Kali Charan, PW-104 Munni Devi and PW-129 Vinod Vishwanth also identified him as being one of the assailant. (PW-52 Kali Charan, PW-104 Munni Devi and PW-129 Vinod Vishwanath) State v. Sher Singh Rana & Ors. Page 33 of 217 (xxxix) Three chance finger prints recovered from the revolver "MADE IN INLEND" tallied with his thumb impression upon comparison at FSL (PW-134 A.P. Verma and PW-148 Awdesh Kumar, Finger Print Experts).
(XL) The bullets recovered from the body of Smt. Phoolan Devi were found to have been fired from the said revolver make "MADE IN INLAND". (PW-149 K. C. Varsheney, Ballistic Expert).
(XLi) Accused Sharwan Kumar was found to have lodged himself in jail on 18.07.2001 in the name of Sher Singh Rana in an already pending case under Excise Act in the court of Ld. ACJM at Haridwar and came out on bail on 26.07.2001 (PW-83 SI Hushiaar Singh, PW-85 Ganga Ram, PW-119 Rajender Prasad Sharma, PW-120 Anil Kumar) (XLii) The thumb impression on the court record and that of Haridwar jail record did not tally with that of Sher Singh Rana (PW-135 Deepa Verma) Accused Shekhar Singh
(i) He was an old acquaintance of accused Sher Singh Rana. He participated in a meeting with Sher Singh Rana and others at the residence of Sher Singh Rana and where the entire plan of executing the murder of Smt. Phoolan Devi and her PSO Ct. Balender was worked out and roles assigned to different persons. (PW 62 Pankaj Kalra)
(ii) He procured two SIM cards No. 9811374806 and 9811374810 from Delhi for being used in the execution of conspiracy. (PW-102 Gulshan State v. Sher Singh Rana & Ors. Page 34 of 217 Arora)
(iii) He travelled alongwith accused Rajbir and Dhan Parkash to Delhi in white Maruti Car No. UP-14B-7559 from Roorkee on 25.07.01 and was in constant touch with accused Sher Singh Rana through mobile phone available with accused Rajbir. (PW-17 Uma Kashyap and PW-18 Vijay Kashyap and PW-102 Gulshan Arora)
(iv) On the way to Delhi their car developed some snag and they got it repaired at "Mohan Motors". (PW-118 Naresh)
(v) After reaching Delhi he alongwith accused Sher Singh Rana and Dhan Parkash waited outside the house of Smt. Phoolan Devi while sitting in green colour Maruti Car no. CIM-907 and he was to drive car no. CIM-907 soon after the incident so as to facilitate the escape of Sher Singh Rana and Dhan Parkash from the spot. (PW-73 Ct. Balender)
(vi) While co-accused Sher Singh Rana and Dhan Parkash were sitting inside the car waiting for return of Smt. Phoolan Devi from Parliament, he stood outside the car and was seen by Ct. Balender when he returned with Smt. Phoolan Devi from Parliament House. (PW-73 Ct. Balender)
(vii) While accused Sher Singh Rana fired towards Smt. Phoolan Devi, accused Dhan Parkash fired towards Ct. Balender initially from their country made pistols and thereafter from the two revolvers resulting in the death of Smt. Phoolan Devi and grievous injuries to Ct. Balender and thereafter they ran away in car no. CIM-907 being driven by him while State v. Sher Singh Rana & Ors. Page 35 of 217 leaving the country made pistols at the spot itself. PW Ct. Balender however fired towards them and the bullet hit the rear glass of their car and they also returned fire from the car towards Ct. Balender. (PW-52 Kali Charan, PW-104 Munni Devi, PW-73 Ct. Balender, PW-129 Vinod Vishwanath)
(viii) He thereafter left Car no. CIM-907 at Pandit Pant Marg and left two monkey caps, two revolvers and 12 live cartridges on the rear seat of the car and alongwith the two other co-accused persons boarded a TSR no. DL 1 RF 0235 of Bahadur Shah and on the way he got down from the TSR and went to Meerut. (PW-114 Bahadur Shah, PW-129 Vinod Vishwanath)
(ix) From Meerut he rang up accused Sher Singh Rana on his mobile phone from a PCO and met accused Sher Singh Rana and Rajbir at Meerut by pass and travelled with them in the white Maruti Car being driven by accused Rajbir and they all stayed at Haridwar in hotel Pramila and where accused Sher Singh Rana made an entry in the hotel register impersonating himself as Anoop Singh and thereafter they all stayed at Hotel Ganga View, Rishikesh Road, Haridwar on 25.07.01 and 26.07.01. (PW-107 Survir Singh, PW-116 Deepak Purohit, PW-124 Babu Ram Dubey and PW-169 Rajender Kumar Tiwari)
(x) Thereafter on 27.07.2001 he alongwith accused Sher Singh Rana, Rajbir and Rajender went to Dehradoon and where accused Sher Singh Rana was arrested by the police soon after he addressed a press conference at Doon press Club but he alongwith other co-accused persons State v. Sher Singh Rana & Ors. Page 36 of 217 fled away. (PW-146 Insp. Parikshit, PW-89 Rajesh Sharma)
(xi) Thereafter he alongwith other co-accused Shekhar Singh and Rajender @ Ravinder stayed at hotel "Yatrik" in Vikas Nagar, Dehradun and thereafter at Hotel Ashoka in Yamuna Nagar and at Hotel Green International in Saharanpur and where accused Shekhar made entries in hotel registers in fictitious names. (PW-121 Sanjay Kapoor and PW-125 Satpal Singh)
(xii) On 30.07.01 he alongwith accused Rajender @ Ravinder and Rajbir was apprehended by the police of PS Saharanpur while they all were going to surrender in the Courts at Saharanpur and at their instance the said white Maruti Car was also recovered from corner gali Asha Modern School and Civil Courts. Thereafter he alongwith accused Rajender and Rajbir were also formally arrested by the Delhi police officers and were brought to Delhi. (PW-133 Insp. K.P. Singh, PW-155 DSP Umed Singh)
(xiii) He pointed out the place of occurrence to the police and he too refused to participate in TIP but later on was identified by the witnesses i.e. Ct. Balender and TSR driver Bahadur Shah and PW Vinod Vishwanath by way of photo TIP when his photograph was shown to them mixed with photographs of 7-8 other persons. (PW-73 Ct. Balender, PW-114 Bahadur Shah and PW-129 Vinod Vishwanath and PW-170 ACP Suresh Kaushik)
(xiv) Six chance prints were lifted from car no. CIM-907 and upon comparison the same tallied with his thumb and finger impressions. (PW- 143 S.K. Chaddha).
State v. Sher Singh Rana & Ors. Page 37 of 217(xv) He also made a disclosure statement wherein he spilled the beans of entire conspiracy (PW-170 Inspector Suresh Kaushik) Accused Rajbir Singh
(i) He was an old acquaintance of accused Sher Singh Rana and he too participated in a meeting with accused Sher Singh Rana and others at the residence of Sher Singh Rana where the entire plan of executing the murder of Smt. Phoolan Devi and her PSO Ct. Balender was worked out and roles assigned to different persons. (PW-62 Pankaj Kalra)
(ii) On 25.07.2001 he alongwith accused Shekhar Singh and Dhan Parkash came to Delhi while driving white Maruti Car No. No. UP- 14B-7559 while remaining in constant touch with accused Sher Singh Rana through mobile phone No. 9837222779. (PW-3 Kovid Batra, PW-102 Gulshan Arora, PW-169 R. K. Tiwari, PW-171 Vivek Malhotra)
(iii) On the way to Delhi their Car developed some snag and they got it repaired at "Mohan Motors" Ghaziabad. (PW-118 Naresh)
(iv) After reaching Delhi he waited near Gol Dakhana in the said white Maruti Car No. UP-14B-7559 so as to provide backup to the other co-accused persons immediately after the incident so as to facilitate their escape from the place of incident. (PW-24 ASI Sri Krishan and PW-97 Jeet Singh)
(v) He was sought to be challaned by ASI Shri Krishan on account of wrong parking but was let off by him on his request that he is new to State v. Sher Singh Rana & Ors. Page 38 of 217 Delhi but his Car No. UP 10B 3007 was noted down on the cover page of the challan book by ASI Shri Krishan. (PW-24 ASI Sri Krishan).
(vi) After the incident he however could not provide necessary backup to the other co-accused persons and subsequently met accused Sher Singh Rana at Ghaziabad after he contacted him on his mobile phone. (PW-102 Gulshan Arora)
(vii) Thereafter he alongwith accused Sher Singh Rana picked up accused Shekhar from Meerut by pass and went to Haridwar in the same White Maruti Car and stayed at Haridwar at hotel Pramila and where accused Sher Singh Rana made an entry in the hotel register impersonating himself as Anoop Singh and thereafter they all stayed at Hotel Gangaview, Rishikesh Road, Haridwar on 25.07.01 and 26.07.01 respectively. (PW-107 Survir Singh, PW-116 Deepak Purohit and PW-124 Babu Ram Dubey)
(viii) On 26.07.01 he stood surety for accused Rajender @ Ravinder in the court of Ld. ACJM-1, Haridwar by impersonating himself as Shekhar Singh on the basis of false documents of Scooter No. UP 10B 3007. (PW-134 Deepa Verma, PW-139 Laxman Singh and PW-144 Satish Chaudhary, PW-157 Chet Ram)
(ix) On 27.07.01 he alongwith Shekhar Singh, Rajender and Sher Singh Rana reached Dehradun and after accused Sher Singh Rana was arrested by the police of PS Dallanwala, Dehradun soon after he addressed a press conference at "Doon Press Club" he alongwith other co- accused persons fled away from there. (PW-89 Rajesh Sharma, PW-146 State v. Sher Singh Rana & Ors. Page 39 of 217 Inspector Parikshit Kumar)
(x) Thereafter he alongwith other co-accused Shekhar Singh and Rajender @ Ravinder stayed at hotel "Yatrik" in Vikas Nagar, Dehradun and at hotel Ashoka, Yamuna Nagar and at Hotel Green International at Saharanpur and where co-accused Shekhar made entries in hotel registers in fictitious names. (PW-64, Deepak, PW-121 Sanjay Kapoor and PW-125 Satpal Singh)
(xi) On 30.07.01 he alognwith accused Shekhar Singh and Rajender was arrested from outside Courts at Saharanpur where they were going to surrender and at their instance the white Maruti Car was recovered from corner gali Asha Modern School and Civil Courts. Thereafter their custody was taken by the Delhi police officers and were brought to Delhi. He was arrayed for TIP but he refused to participate in it and was thereafter identified by ASI Shri Krishan from his photo after the same mixed with photographs of some other persons was shown to him. (PW-24 ASI Sri Krishan, PW-133 Inspector K. P. Singh, PW-151, Insp. A.K. Singh and PW-155 DSP Umed Singh)
(xii) His finger print also matched with four out of the six chance prints lifted from the white Maruti Car No. UP-14B-7559. (PW-148 SI Avdesh Kumar)
(xiii) He also made a disclosure statement wherein he spilled the beans of the entire conspiracy. (PW-170 ACP Suresh Kaushik) State v. Sher Singh Rana & Ors. Page 40 of 217 Accused Dhan Parkash
(i) He was an old acquaintance of accused Sher Singh Rana and he also participated in a meeting with Sher Singh Rana and others at the residence of Sher Singh Rana where the entire plan of executing the murder of Smt. Phoolan Devi was worked out and roles assigned to different persons. (PW 62 Pankaj Kalra)
(ii) He travelled alongwith accused Rajbir and Shekhar Singh to Delhi in white Maruti car No. UP-14B 7559 from Roorkee on 25.07.01 and was in constant touch with accused Sher Singh Rana through mobile phone available with accused Rajbir. (PW-3 Kovid Batra and PW-102 Gulshan Arora)
(iii) On the way to Delhi their car developed some snag and they got it repaired at "Mohan Motors" Ghaziabad. (PW-118 Naresh)
(iv) After reaching Delhi he alongwith accused Sher Singh Rana and Shekhar Singh waited outside the house of Smt. Phoolan Devi while sitting in green colour Maruti Car no. CIM-907 and when at about 1:30 PM Smt. Phoolan Devi escorted by Ct. Balender returned from Parliament then he and Sher Singh Rana got down from the car and while Sher Singh Rana fired towards Smt. Phoolan Devi he himself fired towards Ct. Balender initially with a country made pistol and thereafter with revolver make "Webley & Scott" resulting in the death of Smt. Phoolan Devi and grievous injuries to Ct. Balender. Thereafter they fled away from the spot in car no. CIM-907 being driven by Shekhar while leaving the country made pistols at the spot itself. (PW-52 Kali Charan, PW-104 Munni Devi, PW-73 State v. Sher Singh Rana & Ors. Page 41 of 217 Ct. Balender, PW-129 Vinod Vishwanath)
(v) Ct. Balender however fired towards their Car No. CIM-907 and the bullet hit the rear glass of the car. However he and his co-accused also returned fire from the car. (PW-73 Ct. Balender, PW-129 Vinod Vishwanath)
(vi) He and his co-accused persons thereafter left Car No. CIM- 907 at Pandit Pant Marg leaving two revolvers (weapons of offence), two monkey caps and 12 live cartridges on the rear seat of the Car. (PW-13 ASI Satish Joshi, PW-24 ASI Sri Krishan, PW-129 Vinod Vishwanath,, PW- 167 ACP G. L. Mehta)
(vii) Thereafter he alongwith accused Sher Singh Rana and Shekhar Singh boarded TSR No. DL 1RF 0235 being driven by one Bahadur Shah and alighted from it after some distance and went to some unknown place. (PW-114 Bahadur Shah, PW-129 Vinod Vishwanath)
(viii) He was subsequently arrested by the Haridwar Police from Roorkee and his custody was taken by Insp. K.P. Singh on 04.08.01 and was produced in Delhi on 05.08.01 and was arrayed for TIP but he refused to participate therein. (PW-133 Inspector K. P. Singh)
(ix) He was thereafter identified by Ct. Balender and TSR driver Bahadur Shah by way of photo TIP when his photo was shown to them after mixing it with photos of 7-8 other persons. (PW-73 Ct. Balender and PW-114 Bahadur Shah) State v. Sher Singh Rana & Ors. Page 42 of 217
(x) His finger prints tallied with the 3 chance prints lifted from the revolver "Webley and Scott" recovered from the rear seat of car no. CIM-
907. (PW-148 SI Avdesh Kumar)
(xi) He also made a disclosure statement stating the details of the conspiracy so entered by them. (PW-170 ACP Suresh Kaushik) Accused Vijay Singh Rana @ Raju
(i) He was the brother of accused Sher Singh Rana and he too participated in the meeting with Sher Singh Rana and others held at their residence where the entire plan of executing the murder of Smt. Phoolan Devi and her PSO Ct. Balender was worked out and roles assigned to different conspirators. (PW 62 Pankaj Kalra)
(ii) He procured mobile phone no. 9837222779 from his friend Kovid Batra @ Kannu Batra on 24.07.01 for a day and provided it to accused Sher Singh Rana for being used during the course of execution of conspiracy to murder Smt. Phoolan Devi. (PW-3 Kovid Batra)
(iii) He was assigned the task of first ensuring imprisonment of Sharwan Kumar in the name of Sher Singh Rana in an already pending case under Excise Act in the court of Ld. ACJM-1, Haridwar and thereafter facilitating the release of accused Sharwan Kumar and Rajender on bail after the murder of Smt. Phoolan Devi on the basis of fake sureties and false documents. (PW-138 Ramesh Chander Aggarwal, PW-139 Laxman Singh, PW-140 Rajesh Rastogi and PW-144 Satish Chaudhary) State v. Sher Singh Rana & Ors. Page 43 of 217
(iii) On 25.07.2001 soon after the incident upon receiving call from accused Sher Singh Rana, he alongwith his family and PW 62 Pankaj Kalra, another friend of accused Sher Singh Rana ran away from their house in Roorkee and stayed at hotel Dwapar in Mussoorie. On 26.07.01 he also met accused Sher Singh Rana at Haridwar railway station. (PW-61 Davender Kumar Mittal)
(iv) On 10.08.01 he was arrested by Delhi Police and he made a disclosure statement spilling out the beans of entire conspiracy. (PW-170 Inspector Suresh Kaushik) Accused Rajender @ Ravinder
(i) He was an old acquaintance of accused Sher Singh Rana and was present in the meeting held at the house of accused Sher Singh Rana prior to the incident wherein all the modalities of the conspiracy to be executed were discussed and the roles assigned to various conspirators. (PW-62 Pankaj Kalra)
(ii) In order to mislead the police in their investigation Rajender Singh got himself arrested on 04.07.2001 in a case u/s 60 Excise Act at PS Jawalapur (Haridwar) and despite bail orders having been passed by the court did not offer sureties and thereby chose to remain inside jail till 26.07.2001 i.e. till after the murder of Smt. Phoolan Devi. (PW-34 SI Inder Singh, PW-30 Ct. Ashwani Kumar, PW-85 Ganga Ram Prajapati, PW-139 Laxman Singh and PW-144 Satish Chaudhary)
(iii) Accused Rajbir and Surender stood sureties for accused State v. Sher Singh Rana & Ors. Page 44 of 217 Rajender on 26.07.2001 I.e a day after the murder of Smt. Phoolan Devi in fictitious name and on the basis of false documents. (PW-134 Ms. Deepa Verma, PW-139 Laxman Singh, PW-144 Satish Chaudhary and PW-157 Chet Ram)
(iv) The date 26.07.2001 was chosen as a date for tendering surety bonds on the ground that while accused Sher Singh Rana will claim before the media at Doon Press Club on 27.07.2001 that he alongwith accused Rajender @ Ravinder had carried out the murder of Smt. Phoolan Devi and the attack on Ct. Balinder, the PSO of Smt. Phoolan Devi and when later on the charge sheet will be filed in the court then the claim of the police would be falsified by showing that Rajender was in jail on the actual date of commission of offence. (PW-62 Pankaj Kalra)
(v) After his release from jail he moved alongwith Sher Singh Rana, Shekhar and Rajbir to different places and stayed at Hotel Yatrik in Vikas Nagar, Dehradun and thereafter at hotel Ashoka, Yamuna Nagar and at Hotel Green International, Saharanpur and where accused Shekhar made entries in hotel registers in fictitious names. (PW-64 Deepak, PW- 121 Sanjay Kapoor and PW-125 Satpal Singh)
(vi) He was finally arrested on 30.07.2001 at Saharanpur alongwith Shekhar and Rajbir when they all were going to surrender before the courts at Saharanpur and the white Maruti Car was recovered at their instance from corner gali Asha Modern School and Civil Courts. (PW-133 Inspector K. P. Singh, PW-151 Insp. A.K. Singh and PW-155 DSP Umed Singh).
State v. Sher Singh Rana & Ors. Page 45 of 217(vi) He made a disclosure statement after his arrest wherein he stated about the details of the conspiracy so hatched. (PW-170 Inspector Suresh Kaushik) Accused Surender Singh Negi
(i) He was an acquaintance of accused Sher Singh Rana and was working at the liquour vend of accused Sher Singh Rana which was got allotted in the name of Pankaj Kalra at Tejupur Roorkee. (PW-41 A.K. Sharma, PW-62 Pankaj Kalra, PW-99 Sanjay Kumar and PW-130 Om Pal)
(ii) He participated in a meeting with co-accused Sher Singh Rana and others held at the residence of Sher Singh Rana where the entire plan of executing the murder of Smt. Phoolan Devi and her PSO Ct. Balender was worked out and roles assigned to different conspirators. (PW-62 Pankaj Kalra)
(iii) On 26.07.01 he stood surety for Rajender impersonating himself as Virender Giri and by furnishing false documents of Scooter No. UP 10A 9630. ( PW-134 Ms. Deepa Verma, PW-139 Laxman, PW-144 Satish Chaudhary and PW-157 Chet Ram)
(iv) On 08.08.01 he was arrested at PS Shampur Haridwar and he made a disclosure statement wherein he stated about the conspiracy so entered into by them. (PW-109 SI Parkash Chand and PW-170 Inspector Suresh Kaushik) State v. Sher Singh Rana & Ors. Page 46 of 217 Accused Parveen Mittal.
(i) He was an Advocate practicing at Roorkee Courts and was an old acquaintance of accused Sher Singh Rana. He was also present in the meeting held at the house of accused Sher Singh Rana wherein details of the conspiracy so hatched were discussed. (PW-62 Pankaj Kalra)
(ii) He gave legal advise to accused Sher Singh Rana as to how the conspiracy ought to be executed and how false plea of alibi can be created by showing himself inside jail on the alleged date of incident and thereby escaping from the long hands of law. (PW-170 Inspector Suresh Kaushik)
(iii) He also advised accused Sher Singh Rana to put forward the name of one Rajender as the second assailant and while keeping Rajender actually in jail in some other case so that later on, the case of the prosecution may fall flat. (PW-170 Inspector Suresh Kaushik)
(iv) He also provided one revolver "MADE IN INLEND" to accused Sher Singh Rana knowing fully well that the same will be used in the commission of murder of Smt. Phoolan Devi. (PW 62 Pankaj Kalra)
(v) He was arrested on 02.08.01 and made a disclosure statement wherein he stated about the details of the conspiracy so hatched. (PW-170 Inspector Suresh Kaushik)
(vi) On 16.08.2001 one diary was allegedly recovered from the house of Sher Singh Rana where Sher Singh Rana had written his phone State v. Sher Singh Rana & Ors. Page 47 of 217 number and that of co-accused Amit Rathi. (PW-131 SI Satish Sharma and PW-152 Inspector Rajender Bhatia) Accused Amit Rathi
(i) Accused Amit Rathi was running a gun house in the name of "Subhash Gun House" at Roorkee and was an old acquaintance of accused Sher Singh Rana. (PW-70 Afaq Ahmed)
(ii) He made available one revolver labelled "WEBLEY & SCOTT"
to accused Sher Singh Rana knowing fully well that it was to be used in the murder of Smt. Phoolan Devi. (PW-170 Inspector Suresh Kaushik)
(iii) He also got the grooves of the revolver tempered through his employee Afaq Ahmed so that it may not tally with the bullets so fired from it. (PW-70 Afaq Ahmed)
(iv) After the incident upon receiving phone call from Sher Singh Rana he went away after closing down his shop. (PW-102 Gulshan Arora, PW-169 R. K. Tiwari)
(v) He was also arrested by the Delhi Police on 02.08.01 and he made a disclosure statement wherein he stated about the details of the conspiracy so entered into by them. (PW-170 Inspector Suresh Kaushik)
(vi) On 16.08.2001 one diary was allegedly recovered from the house of Sher Singh Rana where Sher Singh Rana had written his phone number and that of co-accused Amit Rathi. (PW-131 SI Satish Sharma and PW-152 Inspector Rajender Bhatia) State v. Sher Singh Rana & Ors. Page 48 of 217 Accused Sharwan Kumar
(i) He was working at the liquour vend of accused Sher Singh Rana at Tejupur Roorkee which was allotted in the name of Pankaj Kalra.
(PW-41 A.K. Sharma, PW-62 Pankaj Kalra, PW-99 Sanjay Kumar and PW-130 Ompal Singh)
(ii) He also participated in the meeting with co-accused Sher Singh Rana and other accused persons held at the residence of Sher Singh Rana where the entire plan of executing the murder of Smt. Phoolan Devi was worked out and roles assigned to different conspirators. (PW-62 Pankaj Kalra)
(iii) On 18.07.2001 he went to Haridwar jail impersonating himself as accused Sher Singh Rana after Surender Singh Rana, father of accused Sher Singh Rana withdrew his surety bond. He signed Court record and jail record and put his thumb impression over there as accused Sher Singh Rana. He thereafter came out on bail on the basis of fake surety furnished by accused Surender Singh Negi and Rajbir Singh. (PW- 83 SI Hushiaar Singh, PW-85 Ganga Ram, PW-134 Ms. Deepa Verma, PW-138 Advocate Ramesh Chander Agarwal, PW-139 Laxman Singh, PW-144 Advocate Satish Chaudhary, PW-157 Chet Ram)
(iv) After the incident he absconded and was declared proclaimed offender and came to be apprehended only in July, 2004. He thereafter made a disclosure statement stating about the details of the conspiracy so entered by him with other co-accused persons. (PW-126 W/Ct. Anita, PW- 132 Inspector Brahamjeet Singh and PW-170 Inspector Suresh Kaushik) State v. Sher Singh Rana & Ors. Page 49 of 217
(v) His thumb impression were obtained and the same tallied with that on the Haridwar Court record or that on the Haridwar Jail record.
Accused Keshav Chauhan
(i) He was a visitor to the house of Smt. Phoolan Devi and had come on 25.07.2001 only. On the day of incident when firing took place and the assailants dropped two country made pistols (weapons of offence) at the spot so in the commotion which took place soon thereafter he picked up the said country made pistols with a view to earn money by selling them at some later point of time and kept them in a garage in the house of Smt. Phoolan Devi. (PW-6 Surender Sharma, PW-127 Ram Chandra Kashyap, PW-141 Ranjeet Kherwar, PW-160 Umed Singh)
(ii) PW-6 Surender Sharma, a chance witness saw him removing the two country made pistols from the spot. Later on he told about it to IO ACP Suresh Kaushik (PW-6 Surender Sharma and PW-170 Insp. Suresh Kaushik)
(iii) On 26.07.2001 PW-141 Ranjeet Kherwar saw the two country made pistols in the garage of house no. 44, Ashoka Road and later on upon coming to know that accused Keshav Chauhan kept them over there, he informed Ram Chandra Kashyap about it and who in turn informed Umed Singh. Umed Singh thereafter on 30.07.01 informed Insp. Suresh Kaushik in writing about the said two desi kattas lying in the garage of the house and thereafter the two desi kattas were recovered from the garage of the house of Smt. Phoolan Devi I.e 44, Ashoka Road. (PW-127 Ram State v. Sher Singh Rana & Ors. Page 50 of 217 Chandra Kashyap, PW-141 Ranjeet Kherwar, PW-160 Umed Singh and PW-170 Inspector Suresh Kaushik) He thus caused disappearance of the evidence of the crime by removing and concealing the two weapons of offence from the spot.
38. As earlier mentioned for the purposes of ready reference I am hereby mentioning the names of all the 171 prosecution witnesses beside the 5 defence witnesses and 5 Court witnesses in a tabular form with a very brief reference of the role played by them during the course of investigation.
PROSECUTION WITNESSES
S.No NAME OF THE WITNESS REMARKS
PW-1 Nirmal Chandra Owner of Amantran Guest House
Sarbajna
2 PW-2 V. Purshottam Rao OSD, Security, Parliament Street
3 PW-3 Kovid Batra Friend of accused Sher Singh Rana and owner of mobile
phone no. 9837222779
4 PW-4 Ashu Sharma He sold mobile phone Panasonic GD92 to accused Sher
Singh Rana after purchasing from Gray Market (Gaffar Market) 5 PW-5 Inderjeet Service Advisor at Maruti Service Master, Okhla where car of Smt. Phoolan Devi was being repaired 6 PW-6 Surender Sharma Chance witness at the time of incident 7 PW-7 Inspector Hawa Singh Inspector, Police Control Room where phone calls pertaining to incident were received 8 PW-8 HC Kuldeep He recorded different information at Police Control Room 9 PW-9 Inspector Phool Singh Incharge, Police Control Room 10 PW-10 HC Bhagwati Recorded information received in Traffic Control Room on the day of incident 11 PW-11 HC Joy S.G Recorded information in Police Control Room, New Delhi District State v. Sher Singh Rana & Ors. Page 51 of 217 S.No NAME OF THE WITNESS REMARKS 12 PW-12 HC Dharambir Recorded information in Traffic Control Room on the day of incident 13 PW-13 ASI Satish Joshi Police official from PS Mandir Marg who first of all saw abandoned car no. CIM 907 at Pandit Pant Marg alongwith PW-24 ASI Sri Krishan 14 PW-14 Ct Susana Recorded information at Police Control Room on the day of incident 15 PW-15 HC Virender Singh Recorded information at Police Control Room on the day of incident 16 PW-16 Ct Vimla Recorded information at Police Control Room on the day of incident 17 PW-17 Uma kashyap Removed Smt. Phoolan Devi and Ct. Balender to RML hospital 18 PW-18 Vijay Kumar Kashyap Husband of PW-17 Uma Kashyap. He and his wife had come to the house of Smt. Phoolan Devi on the morning of 25.07.2001 in car No. CIM 907 driven by accused Sher Singh Rana 19 PW-19 Ct Satbir Recorded information at Police Control room on the day of incident 20 PW-20 HC Mohanlal He conveyed information to PCR about the incident 21 PW-21 Pradeep S/o Photographer who took photographs of the visit of Smt. Mahender Phoolan Devi to Haridwar in April, 2001 22 PW-22 Javed Khan Friend of accused Sher Singh Rana and studied with him in college 23 PW-23 HC Manoj Kumar Recorded information at Police Control Room on the day of incident 24 PW-24 ASI Sri Krishan Traffic Police Official who alongwith PW-13 ASI Satish Joshi first of all reached near car No. CIM 907 at Pandit Pant Marg 25 PW-25 Naveen Kumar Senior Manager, Central Bank of India, Roorkee 26 PW-26 Safiq Ahmed Recorded information at Police Control Room on the day of incident 27 PW-27 Mahadev Yadav @ Registered owner of TSR No. DAR 1460 which was Ram Mahadev subsequently got replaced from Transport Authority by TSR No. DL1RF 0235 28 PW-28 Rameshwar Sharma He provided finance to PW-114 Bahadur Shah to purchase TSR No. DL1RF 0235 from PW-27 Mahadev Yadav 29 PW-29 Jagannath He had financed TSR No. DAR 1460 to PW-27 Mahadev Yadav State v. Sher Singh Rana & Ors. Page 52 of 217 S.No NAME OF THE WITNESS REMARKS 30 PW-30 Raja Kumar Friend of accused Sher Singh Rana and studied with him at St. Gabriel School, Roorkee 31 PW-31 Hemant Soni Accountant, RTO Office, Ghaziabad, UP 32 PW-32 Madanpal Singh UDC, RTO Office, Burari 33 PW-33 Dr. Pradeep Saxena He prepared death report of Smt. Phoolan Devi at RML hospital 34 PW-34 SI Inder Singh He arrested accused Rajender on 03.07.2001 in a case at Haridwar for the offence u/s 60 Excise Act 35 PW-35 Ct Narender Singh Duty Constable at RML hospital 36 PW-36 Dr. Veena Mahajan She examined injured Ct. Balender at RML hospital 37 PW-37 Dr. M.P Arora He also examined injured Ct. Balender at RML hospital 38 PW-38 Dr. Madhu Natrajan Radiologist who took X-Ray of Ct. Balender 39 PW-39 Ct Ashwani Kumar He alongwith Ct. Sanjay Kumar apprehended accused Rajender on 03.07.2001 at Haridwar while he was carrying a can of liquor 40 PW-40 Ct Narinder Singh Duty Officer at PS Jawalapur, Haridwar who recorded FIR No. 246/01 on 03.08.2001 u/s 60 Excise Act 41 PW-41 A. K. Sharma Deputy Excise Commissioner, Dehradun, Uttranchal 42 PW-42 Virender Giri Owner of two wheeler scooter No. UP 10 9577 43 PW-43 Bhupinder Singh UDC, RTO Office, Haridwar, Uttranchal Bisht 44 PW-44 Ct. Sanjay Panwar Constable Uttranchal Police. Dropped by prosecution being witness of repetitive facts already deposed by PW- 39 Ct. Ashwani Kumar 45 PW-45 Surinder Kumar Accounts Officer, Banking, MTNL, Janpath, New Delhi 46 PW-46 Sanjay Sharma SDO, BSNL, Roorkee 47 PW-47 Ct. Amit Kumar Another PSO of Smt. Phoolan Devi who was not on duty at the time of incident.
48 PW-48 Ct. Devinder Another PSO of Smt. Phoolan Devi who was not on duty at the time of incident.
49 PW-49 Dr. Atul Murari He conducted postmortem examination on the body of Smt. Phoolan Devi at Lady Harding Medical College 50 PW-50 ASI Malkiat Singh Duty Officer, PS Parliament Street who recorded FIR No. 253/01 in the present case besides other DD entries pertaining to present case 51 PW-51 ASI Rajbir Singh MHCM, PS Parliament Street 52 PW-52 Kalicharan An eye witness on whose complaint the present case was registered State v. Sher Singh Rana & Ors. Page 53 of 217 S.No NAME OF THE WITNESS REMARKS 53 PW-53 HC V.K Tyagi Police official of PS Kotwali, Dehradun 54 PW-54 HC Ramjit Singh Recorded information at Police Control Room on the day of incident 55 PW-55 Inspector Harpal Inspector, Security Wing, Delhi Police Singh 56 PW-56 HC Kamal Singh Incharge, PCR Van Victor-31 which reached at the spot first of all 57 PW-57 ASI Zile Singh Record Clerk, Police Control Room 58 PW-58 ASI Virender Singh Head Morhar, PS Dallanwala, Dehradun 59 PW-59 SI Tejpal Incharge, E Block, Security Wing, Delhi Police 60 PW-60 Dr. Poonam Vohra She proved report of Radiologist Dr. Madhu Natrajan (who was not available) regarding X-Ray plates of Ct. Balender 61 PW-61 Devender Kumar Owner of Hotel Dwapar, Mussoorie Mittal 62 PW-62 Pankaj Kalra Friend of accused Sher Singh Rana and star witness qua conspiracy 63 PW-63 SI Balbir Singh Haryana Police Officer posted at Yamuna Nagar 64 PW-64 Deepak S/o Prem Receptionist, Hotel Ashoka, Yamuna Nagar Prakash 65 PW-65 SI Jagdish Prasad Posted at RML hospital on the day of incident 66 PW-66 Ct Satpal Singh Posted in District Jail, Haridwar 67 PW-67 Bhawani Singh DGM, BSNL, Narnol, Haryana Yadav 68 PW-68 Anoop Kumar RTO Officer, Indore, MP Saxena 69 PW-69 Sh. Mohan Singh Witness qua seizure of records of Hotel Green International, Sahranpur 70 PW-70 Afaq Ahmed Employee at the shop of accused Amit Rathi 71 PW-71 Ct. Rishipal Posted at Crime Branch, Delhi Police and participated in the investigation 72 PW-72 Inspector V.K Inspector, PCR (Admn.) reached Pandit Pant Marg upon Sharma receiving information about car no. CIM 907 73 PW-73 HC Balender Injured PSO of Smt. Phoolan Devi 74 PW-74 Harish Tyagi Asstt. Manager, Ganga View Hotel, Haridwar-Rishikesh Road 75 PW-75 ASI Rakesh Kumar Posted at Crime Branch, Delhi Police and participated in Spl Cell the investigation State v. Sher Singh Rana & Ors. Page 54 of 217 S.No NAME OF THE WITNESS REMARKS 76 PW-76 V.S. Rawat LDC, Lady Harding Medical College 77 PW-77 Ct. Satpal Duty Constable, RML hospital 78 PW-78 Addl. DCP Ranbir ACP, PS Parliament Street at the time of incident Singh 79 PW-79 SI Mahesh Kumar Draftsman, Crime Branch 80 PW-80 SI Bhim Sen Posted at Crime Branch, Delhi Police and participated in the investigation 81 PW-81 HC Jaipal Singh Head Mohrar, PS Gang Nahar, Roorkee 82 PW-82 ASI Amarjeet Singh Posted at Crime Branch, Delhi and participated in the investigation 83 PW-83 SI Hushiaar Singh Naib Court in the court of Ld. ACJM-1, Haridwar 84 PW-84 Kamleshwar Mishra Sub Divisional Engineer, Telephones, BSNL, Haridwar 85 PW-85 Ganga Ram Deputy Jailer, Haridwar Jail Prajapati 86 PW-86 Surinder Kapoor Director News, Asian News International 87 PW-87 Kishore Arora Cameraman, Asian News International 88 PW-88 Ashish Goyal Reporter, Asian News International 89 PW-89 Rajesh Sharma Staff Reporter, "Doon Valley Mail"
90 PW-90 Insp. Ramesh Chand Posted at Crime Branch, Delhi Police and participated in
Crime Branch the investigation
91 PW-91 SI Jaibir Singh Posted at Crime Branch, Delhi Police and participated in
the investigation
92 PW-92 Ct Sajjad Ali Posted at Crime Branch, Delhi Police and participated in
the investigation
93 PW-93 Mansur Alam He sold car No. CIM 907 to accused Sher Singh Rana
94 PW-94 Anurag Tyagi Friend of accused Sher Singh Rana who sold mobile
phone no. 9837237160 to accused Sher Singh Rana 95 PW-95 Ct Vikal Posted at Crime Branch, Delhi Police and participated in the investigation 96 PW-96 Ct. Roop Chand Photographer, PS Parliament Street, New Delhi 97 PW-97 Jeet Singh Private Crane Driver attached on Traffic Police Duty 98 PW-98 HC Vishal Mani Police Official from PS Gang Nahar, Roorkee 99 PW-99 Sanjay Kumar Excise Inspector, Roorkee, Distt. Haridwar 100 PW-100 Manawar Khan Witness of sale of car No. CIM 907 by PW-93 Mansur Alam to accused Sher Singh Rana 101 PW-101 Ishwar Singh Addl. DCP, Crime Branch and participated in investigation State v. Sher Singh Rana & Ors. Page 55 of 217 S.No NAME OF THE WITNESS REMARKS 102 PW-102 Gulshan Arora Nodal Officer, ESSAR 103 PW-103 HC Mahender Incharge, PCR Van who visited Pandit Pant Marg where Kumar car No. CIM 907 was found 104 PW-104 Munni Devi Sister of Smt. Phoolan Devi who removed her and Ct.
Balender to hospital 105 PW-105 Daan Singh Negi Chief Asstt. ARTO Office, Haridwar, Uttranchal 106 PW-106 Bhartendu Kaushal He prepared car number plate bearing no. UP 10 B 3007 107 PW-107 Survir Singh Security Guard, Hotel Ganga View, Haridwar-Rishikesh Road 108 PW-108 ASI Om Prakash Posted at Crime Branch, Delhi Police and participated in the investigation 109 PW-109 SI Prakash Chand Posted at Crime Branch, Delhi Police and participated in the investigation 110 PW-110 C.N. Kumar Deputy SP, National Crime Record Bureau 111 PW-111 Sh. V.K. Yadav. Ld. ADJ, Delhi who recorded statement u/s 164 Cr.P.C. of Ld. ADJ PW-17 Uma Kashyap and PW-18 Vijay Kashyap 112 PW-112 ASI Roshanalal Duty Officer, PS Jawalapur, Haridwar 113 PW-113 Insp. Ran Singh Posted at Crime Branch, Delhi Police and participated in the investigation 114 PW-114 Bahadur Singh Driver of TSR No. DL 1 RF 0235 Shah 115 PW-115 ASI Ravinder Posted at Crime Branch, Delhi Police and participated in the investigation 116 PW-116 Deepak Purohit Receptionist, Hotel Ganga View, Haridwar Rishikesh Road 117 PW-117 S. S. Rathi Ld. ADJ who conducted TIP of accused Dhan Parkash 118 PW-118 Naresh Owner of "Mohan Motors" at Ghaziabad 119 PW-119 Rajender Prasad Ahlmad in the court of Ld. ACJM-1, Haridwar Sharma 120 PW-120 Anil Kumar Ahlmad in the court of Ld. ACJM-1, Haridwar 121 PW-121 Sanjay Kapoor Receptionist, Ashoka Hotel, Yamuna Nagar 122 PW-122 Gurmail Singh Posted at Crime Branch, Delhi Police and participated in the investigation 123 PW-123 ASI Braham Posted at Crime Branch, Delhi Police and participated in Prakash the investigation 124 PW-124 Babu Ram Dubey Manager, Promila Hotel, Haridwar 125 PW-125 Sh. Satpal Singh Manager, Hotel Yatrik, Vikas Nagar, Dehradun State v. Sher Singh Rana & Ors. Page 56 of 217 S.No NAME OF THE WITNESS REMARKS 126 PW-126 W/Ct. Anita Duty Officer, Anti Robbery Section in 2004 when accused Sharwan Kumar was arrested 127 PW-127 Ram Chandra He helped in removing Smt. Phoolan Devi and Ct.
Kashyap Balender to hospital and also deposed qua accused Keshav Chauhan 128 PW-128 Ct. Anil Posted at Crime Branch, Delhi Police and participated in the investigation 129 PW-129 Vinod Vishwanath Chance witness at the time of incident 130 PW-130 Ompal Singh Owner of hardware shop near liquor vend of accused Sher Singh Rana at Tejupur, Roorkee 131 PW-131 Insp. Satish Sharma Posted at Crime Branch, Delhi Police and participated in the investigation 132 PW-132 Insp. Brahamjeet He arrested accused Sharwan in July, 2004 after he was Singh declared proclaimed offender 133 PW-133 Insp. K.P Singh Posted at Crime Branch, Delhi Police and participated in the investigation 134 PW-134 A.P Verma Finger Print Expert, FSL 135 PW-135 Deepa Verma Documents Examiner, FSL 136 PW-136 G. Ganesha Photographer, Finger Print Bureau, Malviya Nagar 137 PW-137 P. Bawa Finger Print Expert, FSL 138 PW-138 Ramesh Chander Advocate Practicing at Haridwar Courts Aggarwal 139 PW-139 Laxman Singh Clerk of PW-144 Advocate Satish Chaudhary at Haridwar Courts 140 PW-140 Rajesh Rastogi Advocate Practicing at Haridwar Courts 141 PW-141 Ranjeet Kherwar Deposed qua accused Keshav Chauhan 142 PW-142 Ct. Sunil Kumar DD Writer, PS Dhallanwala, Haridwar 143 PW-143 S. K. Chadha Finger Print Expert, CFSL, CBI Lab 144 PW-144 Satish Chaudhary Advocate Practicing at Haridwar Courts 145 PW-145 Ct. V. K. Gurjar Constable posted at District Jail, Haridwar 146 PW-146 SHO Parikshit SHO, PS Dhallanwala who arrested accused Sher Singh Kumar Rana 147 PW-147 Ct. Kaushal Kishore Constable, District Jail, Haridwar 148 PW-148 SI Avdesh Kumar Finger Print Expert, Finger Print Bureau, Malviya Nagar 149 PW-149 Sh. K. C. Varsheney Ballistic Expert, FSL,Delhi 150 PW-150 Binay Kumar Mishra Asstt. Director, National Crime Record Bureau, Delhi State v. Sher Singh Rana & Ors. Page 57 of 217 S.No NAME OF THE WITNESS REMARKS 151 PW-151 Insp A. K. Singh, SHO, PS Mandi, Distt. Sahranpur, who arrested accused CBCID, Meerut Rajender, Rajbir and Shekhar alongwith PW-155 DSP Umed Singh 152 PW-152 Inspector Rajender Posted at Crime Branch, Delhi Police and participated in Bhatia, SHO, Mehrauli the investigation 153 PW-153 HC Maya Devi Duty Officer, PS Hari Nagar, Delhi who recorded FIR No. 95/04 regarding abscondance of accused Sher Singh Rana from Tihar Jail 154 PW-154 Insp. Ashok Kumar Posted at Crime Branch, Delhi Police and participated in the investigation 155 PW-155 DSP Umed Singh SHO, PS Sadar Bazar, Sahranpur, UP who arrested accused Shekhar, Rajender and Rajbir alongwith PW-151 Inspector A. K. Singh 156 PW-156 A.K. Shrivastav Asstt. Director (Biology), FSL, Delhi 157 PW-157 Chet Ram Finger Print Expert, FSL, Delhi 158 PW-158 Insp. Vishnu Chand SHO, PS Muzaffarpur, UP who had arrested Mustakeem Gautam in an Arms Act case 159 PW-159 HC P. K. Ranjan Photographer, Finger Print Bureau, Malviya Nagar 160 PW-160 Umed Singh Husband of Smt. Phoolan Devi 161 PW-161 Insp. S. N. Khan He formally arrested accused Sharwan Kumar in the year 2004 162 PW-162 SI Sanjeev Mandal Posted at PS Parliament Street and participated in initial investigation with initial IO PW-167 ACP G. L. Mehta 163 PW-163 SI Upender Singh Posted at PS Parliament Street and participated in initial investigation with initial IO PW-167 ACP G. L. Mehta 164 PW-164 Rajneesh Sharma Maruti van driver in whose vehicle Smt. Phoolan Devi and Ct. Balender were removed to hospital from the spot. 165 PW-165 SI Sanjeev Verma Posted at PS Parliament Street and participated in initial investigation with initial IO PW-167 ACP G. L. Mehta 166 PW-166 Sh. M.S. DCP, Crime, Delhi Police who gave sanction u/s 39 Arms Upadhyaya Act, 1959 167 PW-167 ACP G. L. Mehta SHO PS Parliament Street and was the initial Investigating Officer 168 PW-168 SI Manoj Kumar Posted at Crime Branch, Delhi Police and participated in the investigation 169 PW-169 R.K.Tiwari Nodal Officer, ESCOTEL 170 PW-170 Insp. Suresh Main Investigating Officer of the case from Crime Branch, Kaushik (I/O) Delhi Police 171 PW-171 Vivek Malhotra Asstt. Sales Manager, ESCOTEL State v. Sher Singh Rana & Ors. Page 58 of 217 DEFENCE WITNESSES S.NO NAME OF THE WITNESS REMARKS 1 DW-1 Parveen Mittal Accused examined himself u/s 315 Cr.P.C. 2 DW-2 Shekhar Singh Accused examined himself u/s 315 Cr.P.C. 3 DW-3 Hazi Mehaboob Property Dealer at Roorkee 4 DW-4 Lalit Singh Sub Divisional Engineer, BSNL, Roorkee 5 DW-5 HC Amarjeet Singh Special Messenger, PS Parliament Street who delivered copy of FIR in the present case to senior officers COURT WITNESSES S.No. NAME OF THE WITNESS REMARKS 1 Sh. Dilip Kr. Chaturvedi Draftsman Uttranchal Piyau Jal Nagar, Haridwar 2 Sh. Giri Raj Singh Ahlmad in the court of Sh. D.K.Sharma, Ld.MM, Delhi 3 Sh. Vijay Kumar Athuni, AO/Judicial PIO, New Delhi District, Patiala House Courts, New Delhi Branch 4 SI Shyam Sunder Incharge, RTI Cell, Crime Branch, Delhi Police 5 Sh. Suresh Roy Joint Commissioner of Police, New Delhi Range, Delhi Police as on the day of incident i.e. 25.07.2001
39. As conspiracy is the primary charge against the accused persons so it will be appropriate to first have a brief glance of the definition, essential features and proof thereof.
40. In the case Rakesh Kumar and Ors. v. State, Crl. A No. 19/2007 decided on 27.08.2009 the Hon'ble Delhi High Court summed up State v. Sher Singh Rana & Ors. Page 59 of 217 the law of conspiracy-definition essential features and proof as under:-
"128. As conspiracy is the primary charge against the accused, we first advert to the law of conspiracy - its definition, essential features and proof.
129. Section 120-A defines „criminal conspiracy ‟ as under:-
"Definition of criminal conspiracy - When two or more person agree to do, or cause to be done, (1) An illegal act, or An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Explanation: - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
130. It is clear from the above noted definition of „criminal conspiracy‟ that the three essential elements of offence of conspiracy are (a) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished; (b) a plan or scheme embodying means to accomplish that object; (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means. Thus, the gist of offence of criminal conspiracy is an agreement to break the law.
131. Sections 120-A and 120-B were brought on the statute book by way of Criminal Law Amendment Act, 1913. Earlier to the introduction of Sections 120A and 120B, conspiracy per se was not an offence under the Indian Penal Code except in respect of the offence mentioned in Section 121A. In the Objects and Reasons State v. Sher Singh Rana & Ors. Page 60 of 217 to the Amendment Bill, it was explicitly stated that the new provisions (120-A & B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law...." Thus, Sections 120A & 120B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable.
132. Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads as under:-
"10. Things said or done by conspirator in reference to common design:- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
133. Thus, the substantive section of the IPC i.e. Section 120-A adumbrated thereon Section 10 of the Indian Evidence Act give us the legislative provisions applicable to conspiracy and its proof.
134. After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled out:-
A When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (See the decision of Supreme Court reported as State v Nalini (1999) 5 SCC 253) B The very agreement, concert or league is the State v. Sher Singh Rana & Ors. Page 61 of 217 ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (See the decisions of Supreme Court reported as Yash Pal Mittal v State of Punjab AIR 1977 SC 2433 and State v Nalini (1999) 5 SCC 253) C It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful State v. Sher Singh Rana & Ors. Page 62 of 217 agreement, which is the graham of the crime of conspiracy.
D The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do or cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (See the decisions of Supreme Court reported as Shivnarayan Laxminarayan Joshi v State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar v State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v State AIR 1988 SC 1883) E A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it State v. Sher Singh Rana & Ors. Page 63 of 217 was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and vice versa.
F Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co- conspirators. In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-
conspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul Singh v State of Maharashtra AIR 1957 SC 747.)"
41. Beside the direct evidence of the eye witnesses of the incident the prosecution case primarily rests upon circumstantial evidence. It will be thus appropriate to refer to the discussion by Hon'ble High Court on circumstantial evidence also made in the said case itself i.e. Rakesh Kumar and Ors. (supra)
"135. As discussed in the foregoing paras, more often than not, the prosecution would adduce circumstantial evidence to prove the charge of conspiracy. The question which arises is that what should be the nature of circumstantial evidence in a case of conspiracy to bring home the guilt of the accused persons.
State v. Sher Singh Rana & Ors. Page 64 of 217136. The well known rule governing circumstantial evidence 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; and (c) the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him, is fully applicable in cases of proof of conspiracy. The courts have added two riders to aforesaid principle; namely, (i) there should be no missing links but it is not that every one of the Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 81 of 183 links must appear on the surface of the evidence, since some of these links can only be inferred from the proved facts and
(ii) it cannot be said that the prosecution must meet any and every hypothesis put forward by the accused however far- fetched and fanciful it may might be. (See the decision of Supreme Court reported as Gagan Kanojia v State of Punjab (2006) 13 SCC 516)
137. The question which arises for consideration is, what does the expression „proved beyond reasonable doubt‟ occurring in the afore-noted cardinal rule of circumstantial evidence signify. Does it mean that the prosecution is required to prove its case with hundred percent certainty?
138. The answer to the aforesaid question can be found in the following observations of Supreme Court in the decision reported as Lal Singh v State of Gujarat AIR 2001 SC 746:- "The learned Sr. Counsel Mr. Sushil Kumar submitted that prosecution has not proved beyond reasonable doubt all the links relied upon by it. In our view, to say that prosecution has to prove the case with a hundred percent certainty is myth. Since last many years the nation is facing great stress and strain because of misguided militants and co-operation to the militancy, which has affected the social security, peace and stability. It is common knowledge that such terrorist activities are carried out with utmost secrecy. Many facts pertaining to such activities remain in personal knowledge of the person State v. Sher Singh Rana & Ors. Page 65 of 217 concerned. Hence, in case of conspiracy and particularly such activities, better evidence than acts and statements including that of co-conspirators in pursuance of the conspiracy is hardly available............. For assessing evidence in such cases, this Court in Collector of Customs, Madras & Others v. D. Bhoormall AIR 1974 SC 859 dealing with smuggling activities and the penalty proceedings under Section 167 of the Sea Customs Act, 1878 observed that many facts relating to illicit business remain in the special or peculiar knowledge of the person concerned in it and held thus:
"30. .. that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - "all exactness is a fake". El Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case......" (Emphasis supplied)
139. The Evidence Act does not insist upon absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found. That is why under Section 3 of the Evidence Act, a fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This definition of 'proved' does not draw any distinction between circumstantial and other evidence. The use of expression 'determinative tendency' in the afore-noted rule also seconds the view that the prosecution is not required to adduce such evidence which absolutely proves the guilt of an accused person. Thus, circumstantial evidence in State v. Sher Singh Rana & Ors. Page 66 of 217 order to furnish a basis for conviction requires a high degree of probability, that is, so sufficiently high that a prudent man considering all the facts, feels justified in holding that the accused has committed the crime. (See the decisions of Supreme Court reported as State of Maharashtra v Mohd. Yakub AIR 1980 SC 1111 and Gokaraju Venkatanarasa Raju v State of AP (1993) Supp (4) SCC 191)
140. The approach to be adopted by the courts while appreciating circumstantial evidence was succinctly stated by Supreme in the decision reported as M.G.Agarwal v State of Maharashtra AIR 1963 SC 200 in following terms:-
"It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the State v. Sher Singh Rana & Ors. Page 67 of 217 proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt."
42. However before discussing the evidence led by the prosecution qua each of the aforesaid circumstances, I deem it appropriate to mention certain facts which not only stand proved from the evidence led by the prosecution but even stand not disputed on the part of the accused persons. This exercise will certainly narrow down the controversy which is required to be resolved by this Court in the present case.
43. The factum of murder of Smt. Phoolan Devi on account of bullet injuries sustained by her or the bullet injuries sustained by Ct. Balender in the impugned incident has not been disputed by the accused persons. The fact that Smt. Phoolan Devi and Ct. Balender were removed to RML hospital where Smt. Phoolan Devi was declared brought dead and Ct. Balender was stated to be critical is also not in dispute. Nature of injuries found on their bodies and as are mentioned in the MLC's or the post-mortem examination report of Smt. Phoolan Devi are also not in dispute. These facts even otherwise stand amply proved from the deposition of PW-33 Dr. Pardeep Saxena, PW-36 Dr. Veena Mahajan, PW- 37 Dr. M. P. Arora, PW-38 Dr. Madhu Natrajan, PW-49 Dr. Atul Murari, PW- 52 Kali Charan, PW-60 Dr. Poonam Vohra, PW-73 Ct. Balender, PW-104 Munni Devi and PW-164 Rajneesh Sharma.
44. There thus does not arise any need to discuss in detail the nature of injuries sustained by Smt. Phoolan Devi or Ct. Balender except State v. Sher Singh Rana & Ors. Page 68 of 217 that they all were bullet injuries. In fact the sole plea of defence of all the accused persons and especially that of accused Sher Singh Rana, Shekhar, Rajbir and Dhan Parkash during the course of entire trial has been that they were not involved in any manner with the incident in question. Thus the entire focus of cross-examination of various prosecution witnesses on behalf of accused persons has been to deny their involvement in the incident and not that no such incident of firing resulting in the death of Smt. Phoolan Devi or injuries to Ct. Balender ever took place.
45. Reliance in this regard may also be placed on the case Kehar Singh and Ors. v. State (Delhi Administration), 1988 (3) SCC 609 (Mrs. Indira Gandhi Murder case) wherein also Hon'ble Supreme Court made similar observations on the ground that as the bullet injuries sustained by Mrs. Indira Gandhi were not in dispute so the postmortem examination or its report thereof looses its significance.
46. Thus when there is no serious dispute as to the nature of injuries sustained either by Smt. Phoolan Devi or by Ct. Balender so in the over all facts and circumstances of the case and keeping in view the plea of defence taken on behalf of the accused persons beside the evidence as it stands on the file, the question of post-mortem examination of Smt. Phoolan Devi or the medical examination of Ct. Balender at RML hospital including the nature of injuries as mentioned therein looses all its significance. There is no dispute that Smt. Phoolan Devi died as a result of the gun shot injuries or that Ct. Balender also sustained gun shot injuries. In fact it is also not in dispute that the bullets recovered from the body of State v. Sher Singh Rana & Ors. Page 69 of 217 Smt. Phoolan Devi and Ct. Balender were not fired from the two revolvers allegedly recovered from Car No. CIM-907 and the country made pistols subsequently recovered on 30.07.01 allegedly from the garage of the house of Smt. Phoolan Devi. The testimony of the doctors who recovered the bullets from the bodies of the two injured and that of Ballistic expert PW-149 K.C. Varsheney proves this fact beyond shadows of all reasonable doubts. Nothing could come out in their cross-examination by accused persons which may lead me to either disbelieve their deposition or could show that these witnesses were deposing falsely in any manner.
47. There thus does not arise any need to discuss in detail either the post-mortem examination report of Smt. Phoolan Devi or the MLC of Ct. Balender.
48. During the course of arguments Ld. Counsel for the accused persons have however tried to highlight various other facts in order to primarily show that the investigation as has been carried out in the present matter has not been fair and above board. Beside the other arguments put forward by Ld. Counsel for the accused persons which I shall be considering while discussing the evidence qua various circumstances against each of the accused persons at a later stage, one important fact which was strongly argued right through the entire trial which lasted for more than 13 years was that immediately on the day of incident senior officers of Delhi police namely Sh. Suresh Rai, the then Joint Commissioner of police New Delhi Range and Sh. K.K. Paul, Joint Commissioner of Police, Crime Branch Delhi Police had informed about the incident to the office of Lt. Governor of Delhi and Sh. P.K. Jalali, Joint State v. Sher Singh Rana & Ors. Page 70 of 217 Secretary, Ministry of Home and to Sh. G. C. Malhotra, Secretary, Lok Sabha by way of written communications beside also issuing a press release. It was pointed out that in the said communication made by Sh. Suresh Roy including the press release issued by him on 25.07.2001 itself after the registration of the present case he had stated that the assailants were masked. It was also submitted that as Parliament was in session on that day so immediately after coming to know about the incident Sh. L.K. Advani, the then Home Minister, Government of India made a statement in the Lok Sabha stating that as informed to him by the Commissioner of Police, Smt. Phoolan Devi has been fired at by three masked assailants. It was also stated that subsequently on 31.07.01 an obituary reference was made by Sh. L. K. Advani, the then Home Minister in the Lok Sabha and therein also it was stated that Smt. Phoolan Devi was killed by two masked assailants.
49. It was thus vehemently argued by Ld. Counsel for the accused persons and especially by accused Sher Singh Rana himself that when the assailants were masked then no one, much less Ct. Balender who got injured in the incident could have seen the face of the assailants. It was also submitted that it was for this reason that in the FIR PW-52, Kali Charan the complainant did not state that one of the assailant was Sher Singh Rana @ Pankaj and he only gave the physical description or the details of the clothes worn by the assailants even though Sher Singh Rana was known to him from prior to. It was also submitted that in the Car bearing No. CIM-907 two monkey caps were allegedly recovered and which fact also support the conclusion that the assailants were masked.
State v. Sher Singh Rana & Ors. Page 71 of 21750. It was also pointed out that in the written communication made by Sh. Suresh Roy or in the statement made by Sh. L. K. Advani in the Lok Sabha on the basis of information received by him from police there was no mention of two monkey caps found lying inside the car even though there was a mention of all other articles recovered from the car. It was thus submitted that the entire investigation has been manipulated subsequently in order to falsely implicate accused Sher Singh Rana and other accused persons. It was further submitted that the police subsequently changed its entire stand by stating that the assailants were not masked and there is no explanation on the file about this change of stand. It was also submitted that when admittedly accused Sher Singh Rana was well known to Kali Charan, the complainant from prior to the incident so there was nothing to prevent him from stating that one of the assailant was accused Sher Singh Rana and police was not required to draw any conclusion from any subsequent investigation to establish that accused Sher Singh Rana was one of the assailant. It was also submitted that infact the alleged eye witness of the incident namely complainant PW-52 Kali Charan, PW-104 Munni Devi and PW-129 Vinod Vishwanath have also supported this conclusion during the course of their deposition in the court. The accused persons were thus stated to have been falsely implicated at the instance of Uma Kashyap and her husband Vijay Kashyap who in collusion with Umed Singh husband of Smt. Phoolan Devi committed murder of Smt. Phoolan Devi. It was submitted that Smt. Phoolan Devi was having differences with Umed Singh and was even fearing a threat to her life. The deposition of PW-104 Munni Devi, the sister of Smt. Phoolan Devi was referred to in support of this claim.
State v. Sher Singh Rana & Ors. Page 72 of 21751. However, before adverting further to discuss the evidence led by the prosecution qua various circumstances as have been delineated above I first intend to discuss certain common circumstances which runs like a thread in the entire chain of circumstantial evidence against different accused persons beside the deposition of PW-62 Pankaj Kalra who has been projected by the prosecution as a material witness to connect all the accused persons with the offence in question.
PW-62 Pankaj Kalra
52. The prosecution has tried to prove the participation of all the accused persons in the conspiracy by showing that a meeting was held prior to the incident in question at the house of Sher Singh Rana where the entire plan as to how the conspiracy was to be worked out was discussed and the roles to be played by various accused persons were assigned. PW 62 Pankaj Kalra was the star witness of the prosecution to prove this fact. Thus it will be appropriate if the deposition of PW62 Pankaj Kalra is first discussed and analysed in this regard.
53. PW-62 Pankaj Kalra who admittedly was an old friend of accused Sher Singh Rana has been projected by the prosecution as a person who was initially sought to be involved in the conspiracy by accused Sher Singh Rana but later on he backed out. It was claimed that PW 62 Pankaj Kalra was thus aware of the entire conspiracy and he in fact had seen all the other accused persons having a meeting at the house of accused Sher Singh Rana wherein the plans were discussed as to how the conspiracy was to be executed and false plea of alibi shall be created.
State v. Sher Singh Rana & Ors. Page 73 of 21754. However in his deposition this witness completely turned around and did not support the case of prosecution at all on any of the aforesaid material aspects. He was accordingly declared hostile by ld. Special PP for the State and was cross-examined at length but nothing material could be elicited in his cross-examination which may support the case of the prosecution in this regard or may lead me to disbelieve his deposition.
55. At this stage I may also point out that in fact the role of police in citing PW Pankaj Kalra as a prosecution witness is also not free from doubts. The prosecution claims that he was aware of the conspiracy so hatched by accused Sher Singh Rana and was even present in the meeting when the plan to execute the said conspiracy was discussed but he later backed out. It is also the case of the prosecution that he was told by accused Sher Singh Rana that after committing murder of Smt. Phoolan Devi he will give a call to him and thereafter he should run away alongwith younger brother of accused Sher Singh Rana namely, accused Vijay Singh Rana @ Raju and other family members. It is also the case of prosecution that Pankaj Kalra accordingly even fled away from Roorkee after the incident and stayed at hotel "Dwapar" in Massooree with the family members of accused Sher Singh Rana and his younger brother Vijay Singh Rana @ Raju.
56. In these circumstances it is beyond comprehension as to how Pankaj Kalra came to be cited as a witness of prosecution rather being arrested as a co-conspirator or a person who was having knowledge of the conspiracy being so hatched but still did not inform about it to the police. It State v. Sher Singh Rana & Ors. Page 74 of 217 is also not clear that if Pankaj Kalra had backed out from the conspiracy then what was the need for him to run away from the house after the murder of Smt. Phoolan Devi and that too alongwith family members of accused Sher Singh Rana. The prosecution has sought to prove these facts only by virtue of the disclosure statement of accused Sher Singh Rana and the statement u/s 161 Cr.P.C. of PW62 Pankaj Kalra and which statement he did not support in his deposition in the court. The disclosure statement of Sher Singh Rana is also not admissible in law being hit by section 25 Evidence Act.
57. It is also not the case of prosecution that Pankaj Kalra first turned approver and that only thereafter he was cited as a prosecution witness.
58. The aforesaid unexplained and strange conduct of the investigating agency is one of many circumstances which have come up during the trial of the present case that raises grave shadows of doubts as regard the very nature of investigation carried out in the present matter. In fact Ld. Special PP for the State also chose not to shed any light on this aspect during the course of arguments.
59. Be that as it may, the fact remains that PW 62 Pankaj Kalra has completely turned hostile on all the material aspects which were sought to be proved by the prosecution. In fact the suggestion put forward to him by Ld. Special PP for the State that he was an old friend of accused Sher Singh Rana and had even got alloted a country made liquor vend in his name and even continued with the same despite there being opposition State v. Sher Singh Rana & Ors. Page 75 of 217 from his parents, highlights another aspect. This suggestion shows as to whether the investigating agency or the prosecution could not have foreseen such a conduct on the part of this witness that he will certainly not support the case of the prosecution, if at all it is presumed that he has deposed falsely in the court. I may however state that drawing of any presumption that the witness has deposed falsely shall be purely on the basis of conjunctures and surmises which has no basis in law. There is thus nothing on record to even remotely suggest that this witness has deposed falsely or that he was won over by the accused persons.
Thus one of the major circumstance that a prior meeting between the conspirators took place at the house of Sher Singh Rana does not stand proved.
60. In fact PW-62, Pankaj Kalra though admitted that he had got allotted a liqour vend on the asking of Sher Singh Rana but stated that he himself did not use to visit it or that it was being run by Sher Singh Rana only. He also claimed ignorance as to who all were working at the said liquour vend much less accused Sharwan, Surender Singh or Pardeep. He also denied having ever met accused Parveen Mittal much less alongwith accused Sher Singh Rana. He thus also denied that in his presence accused Parveen Mittal ever delivered any revolver to accused Sher Singh Rana.
Use of Mobile Phones by the accused persons.
61. Another important circumstance which forms an important link in the prosecution case is the use of mobile phones by accused Sher State v. Sher Singh Rana & Ors. Page 76 of 217 Singh Rana and other co-accused persons.
62. As regards the evidence led by the prosecution qua the mobile phones used by accused Sher Singh Rana or accused Rajbir by virtue of the call detail record or the cell ID chart I may state at the outset itself that the same can not be read into evidence for the following reasons.
63. Though as regard phone No. 9837222779, PW-3 Kovid Batra has stated that he gave it to accused Vijay Singh @ Raju on 24.07.01 for use by his brother Sher Singh Rana and as regard phone No. 9837237160, PW-94 Anurag Tyagi has also stated that he sold it to Sher Singh Rana qua mobile phone No. 9811374806 or 9811374810 no evidence has been led to show that the said two mobile phone numbers belonged to accused Sher Singh Rana, Shekhar Singh, Dhan Parkash or Rajbir Singh, for the prosecution is relying on the use of these phone numbers by accused persons in Delhi on the day of incident.
64. PW-102 Gulshan Arora, Nodal Officer, Essar Mobile Services stated that during those days the identity proof of the subscribers of the cash cards were not sought by their company which was earlier known as "Sterling Cellular Ltd". However irrespective of the said fact some conclusion regarding the involvement of various accused persons in the conspiracy in question could have been drawn from the call detail record and cell ID chart of the mobile phones as the same could have shown the presence of accused Rajbir in or around the area where accused Sher Singh Rana was present on the day of incident and later on at different places where accused Sher Singh Rana had been moving all along with State v. Sher Singh Rana & Ors. Page 77 of 217 other accused persons if the said call detail record or cell ID chart been proved as per the requirement of Evidence Act.
65. It is now well settled that electronic evidence to be proved on record must comply with certain conditions as are provided in section 65B of the Indian Evidence Act, 1872. Before adverting further it will be worthwhile to analyze as to what is the position of law after the amendments made in the Indian Evidence Act, 1872 by virtue of Amendment Act no. 21 of 2000.
66. In the case Rakesh Kumar & Ors. Vs. State, Crl. A. 19/2007 decided on 27.08.2009 by Hon'ble Delhi High Court, the law with regard to admissibility of electronic evidence was discussed at length. It will be thus pertinent to reiterate the said discussion over here.
"193. Section 3 of the Evidence Act, 1872 defines evidence as under:
Evidence" - Evidence means and includes:-
1)-------------
2) all documents including electronic records produced for the inspection of the court;"
194. By way of amendment to the Evidence Act, 1872, incorporated by Act. No. 21 of 2000 following was inserted: "The expression "Certifying Authority", "digital signature", "Digital Signature Certificate", "electronic form", "electronic records", "information", "secure electronic records", "secure digital signature" and "subscriber" shall have the meanings respectively assigned to them in the Information Technology Act, 2000."
195. Section 2 (c) of the Information Technology Act, 2000 reads:
State v. Sher Singh Rana & Ors. Page 78 of 217"electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro record."
196. Section 65A and 65B of the Evidence Act, 1872, inserted by Act No. 21 of 2000 read as under:- "65A. Special provisions as to evidence relating to electronic record.
The contents of electronic records may be proved in accordance with the provisions of Section 65B." "65B. Admissibility of electronic records.
(1) notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) the conditions referred to in Sub-section (1) in respect of a computer output shall be following, namely :-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of said activities;
[c] throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and State v. Sher Singh Rana & Ors. Page 79 of 217
(d) the information contained in the electronic reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regular carried out on over that period as mentioned in Clause (a) of Sub-section (2) was regularly performed by computers, whether -
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, or one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the manner which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in Sub-section (2) relate, and purporting to be signed by a person occupying a reasonable official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be state d to the best of the knowledge and State v. Sher Singh Rana & Ors. Page 80 of 217 belief of the person stating it. (5) For the purposes of this section, -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form or whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer shall be taken to be supplied to it in the course of those activities; (c) to a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
197. Thus, computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act.
198. Sub-section (1) of Section 65B makes admissible as a document, paper print-out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the conditions specified in Sub- section (2) of Section 65B. Following are the conditions specified by Sub- section (2):
a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;
b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer;
c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;
d) Information reproduced is such as is fed into computer in the ordinary course of activity.
199. Under Sub-section (3) of Section 65B, Sub-section State v. Sher Singh Rana & Ors. Page 81 of 217 (1) and (2) would apply where single or combination of computers, is used for storage or processing in the regular course of activities and the computers used shall be construed as a single computer.
200. Under Sub-section (5), information shall be taken to be supplied to a computer by means of an appropriate equipment, in the course of normal activities intending to store or process it in the course of activities and a computer output is produced by it whether directly or by means of appropriate equipment.
201. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Sub-section (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Sub-section (2). Thus compliance with Sub-section (1) and (2) of Section 65B is enough to make admissible and prove electronic records.
202. Sub-section (4) of Section 65B provides for an alternative method to prove electronic record. Sub- section (4) allows the proof of the conditions set out in Sub- section (2) by means of a certificate issued by the person described in Sub- section 4 and certifying contents in the manner set out in the sub-section. The sub-section makes admissible an electronic record when certified that the contents of a computer printout are generated by a computer satisfying the conditions of Sub- section 1, the certificate being signed by the person described therein.
203. Additionally, irrespective of compliance of the requirements of Section 65B, there is no bar to adducing State v. Sher Singh Rana & Ors. Page 82 of 217 secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65.
204. Therefore, the call records Ex.PW-34/A and Ex.PW- 62/ can be proved by adducing secondary evidence in terms of Section 63 of Evidence Act or by complying conditions specified in sub-section (2) or sub-section (4) of section 65B of Evidence Act."
67. Thus, the moot question is whether the call records have been proved in terms of Section 63 or Section 65B(2) or Section 65B(4).
68. From the nature of record produced it is thus clear that in the absence of certificate u/s 65B of Indian Evidence Act, 1872 the call details record or the cell ID chart sought to be proved on record by the prosecution cannot be read or taken into consideration against the accused persons. The said evidence has to be thus discarded away.
69. Even in the absence of any such certificate u/s 65B Evidence Act, the secondary evidence could have been led by the prosecution. However no such steps to lead secondary evidence in accordance with section 63 or section 65 Evidence Act were even taken by the prosecution.
70. The other very important aspect of the prosecution case as to whether the two assailants or their third accomplice who was driving the Maruti Car No. CIM-907 were wearing mask at the time of incident or not shall be discussed at a later stage separately before discussing the evidence qua the various incriminating circumstances sought to be proved against accused Sher Singh Rana, Shekhar Singh and Dhan Parkash.
State v. Sher Singh Rana & Ors. Page 83 of 21771. I thus now intend to discuss the evidence led qua the various incriminating circumstances mentioned earlier against different accused persons so as to analyse whether the said circumstances stand proved or not.
72. I shall be first discussing the case of prosecution qua those accused persons who have been assigned the roles at the periphery of the conspiracy and thereafter the case of accused persons who allegedly were actually involved in the shooting incident dated 25.07.2001 or that of accused Sharwan Kumar whose case is closely linked with the case against accused Sher Singh Rana . The case qua accused Keshav Chauhan who is being tried only for the offence u/s 201 Cr.P.C. shall also be discussed separately.
73. After this microscopic analysis of each of the circumstance as to whether the same stand proved or not I shall be considering whether the circumstances, if any proved form a chain of evidence which lead to only one conclusion i.e. involvement of the various accused persons in the conspiracy or not and is not explainable on any other hypothesis consistent with the innocence of accused.
Case against accused Rajender Prior Acquaintance with Sher Singh Rana and arrest in the case under Excise Act at Haridwar
74. At the outset, I may state that the prosecution has miserably failed to establish that accused Rajender got himself deliberately arrested State v. Sher Singh Rana & Ors. Page 84 of 217 in an Excise Act case at PS Jawalapur (Haridwar) in pursuance to the criminal conspiracy so hatched by accused Sher Singh Rana and others. Undoubtedly the factum of the said case having been registered against accused Rajender at PS Jawalapur (Haridwar) is not in dispute as it stands well proved from the deposition of PW 120 Anil Kumar, the Ahlmed of the concerned court at Haridwar. Even accused Rajender himself has also not disputed the same. Thus the factum of arrest of accused Rajender is also not in dispute and in fact it is the undisputed case of prosecution that from 04.07.2001 till 26.07.2001 accused Rajender was in Haridwar jail in the said case. It is also not in dispute that no sureties were offered on behalf of accused Rajender till 26.07.2001 even though bail orders were passed at the initial stage itself when he was produced in the Court for the first time.
75. The question which however arises is as to how the prosecution seems to connect this fact of arrest of accused Rajender with either accused Sher Singh rana or it being an act in pursuance to criminal conspiracy so hatched by accused Sher Singh Rana and others.
76. As already discussed qua the deposition of PW 62 Pankaj Kalra the prosecution has failed to prove that any meeting ever took place in the house of Sher Singh Rana prior to the incident wherein the plan to carry out the execution of the conspiracy was discussed or roles were assigned to different persons.
77. Thus the prosecution has miserably failed in proving that accused Rajender ever participated in any such meeting held with accused Sher Singh Rana wherein details of the conspiracy so hatched were State v. Sher Singh Rana & Ors. Page 85 of 217 worked out. Accordingly even if there was some prior acquaintance of accused Rajender with accused Sher Singh Rana then the said acquaintance in itself cannot lead to a conclusion that accused Rajender was part of any such conspiracy so hatched by accused Sher Singh Rana and others or that he was even aware of any such conspiracy or its objective thereof. The necessary corollary which thus emerges is that even the arrest of accused Rajender in the case under Excise Act at PS Jawalapur cannot be termed to be in pursuance to the conspiracy in question or for that matter in pursuance to the objective sought to be achieved by any such conspiracy.
The prosecution has thus failed to prove this circumstance Furnishing of fake sureties by him on 26.07.01.
78. As regards the factum of not furnishing surety bond despite bail orders having been passed by the court I may once again state that such circumstances are often observed in the courts when despite bail orders having been passed accused is unable to produce surety. Thus on account of this fact no adverse inference can be drawn against accused Rajender that he did not offer sureties only in pursuance to the criminal conspiracy being hatched by accused Sher Singh Rana and others. Similarly the tendering of surety bond on 26.07.2001 by accused Rajbir and Surender Singh Negi cannot connect accused Rajender with the conspiracy in question as there is no evidence on record to draw such a conclusion. Admittedly accused Rajender was in jail and till the time he got released he is not supposed to know as to who all stood as surety for him State v. Sher Singh Rana & Ors. Page 86 of 217 or what documents were produced by them in the Court. Once again no adverse inference can be drawn on account of this fact that accused Rajender or his two sureties did so on account of any conspiracy being hatched by accused Sher Singh Rana and others. (The fact that accused Surender and Rajbir stood sureties in fake names and on the basis of false documents however shall be separately dealt by me at a later stage when I shall be discussing the case of prosecution qua accused Surender Singh Negi and Rajbir Singh).
79. Thus the act of furnishing surety bonds by accused Surender and Rajbir in fake names and on the basis of false documents cannot be attributed to accused Rajender. Moreover it is also beyond comprehension as to when accused Rajender got himself arrested in his own name and was in jail then what was the need for him to have fake sureties to get himself released if at all he was capable of having proper sound sureties, for otherwise it is the case of prosecution itself that accused Rajender deliberately did not offer sureties initially when he was arrested and bail orders were passed
80. Thus once again no conclusion can be drawn from the aforesaid circumstance that accused Rajender was a part of the present conspiracy in question.
81. Moreover if the two sureties furnished on the basis of false documents or by impersonation was done in pursuant to any agreement with Rajender than at the most Rajender can be liable for having committed the offence of perjury or falsification of documents before a State v. Sher Singh Rana & Ors. Page 87 of 217 Court of Law at Haridwar during the course of judicial proceedings either in furtherance of any common intention shared by him with his two sureties or in furtherance of common object of any conspiracy to get Rajender released from jail than for such an act not only complaint u/s 195 Cr.PC from the Court concerned was mandatory but when the said act of either Rajender or that of his two sureties (I shall be discussing the case qua surety Surender and Rajbir separately) was not committed in furtherance of the common object of the alleged conspiracy hatched by Sher Singh Rana and others then the Courts at Delhi lack jurisdiction to try either the offence of perjury or of falsification of documents.
The prosecution has thus failed to prove this circumstance also.
Statement made in Press Conference by accused Sher Singh Rana on 27.07.2001.
82. As regards the press conference held by accused Sher Singh Rana on 27.07.2001 at Doon Press Club wherein he allegedly claimed that he alongwith accused Rajender @ Ravinder had committed the murder of Smt. Phoolan Devi or the murderous attack on Ct. Balender, the said statement can not be read against accused Rajender being inadmissible in law. One may argue that under section 10 Evidence Act, anything said or done by a conspirator in reference to common design of the conspiracy is admissible and that the conspiracy in question comprised of two parts viz. Committing murder of Smt. Phoolan Devi and her PSO Ct. Balender and thereafter misleading the police by presenting false facts and at the same time having a false plea of alibi made to defeat the claim of the police.
State v. Sher Singh Rana & Ors. Page 88 of 21783. However section 10 Evidence act cannot have any application qua accused Rajender even if it is presumed for the sake of arguments that accused Sher Singh Rana did address such a press conference and claimed that he and Rajender had executed the murder of Smt. Phoolan Devi and the attack on Ct. Balender. Section 10 Evidence Act would have come into picture only if the prosecution had been successful in establishing that both accused Rajender and Sher Singh Rana were co- conspirators. As already discussed the prosecution has miserably failed in establishing this fact that accused Rajender was in any manner part of the conspiracy allegedly being so hatched by accused Sher Singh Rana and others. In these circumstances the said statement stated to have been made by accused Sher Singh Rana at the press conference cannot be read against accused Rajender and has to be discarded away.
The prosecution has thus failed to prove this circumstance also Absconding away of accused Rajender
84. It has been stated that soon after his release from jail accused Rajender started moving alongwith accused Sher Singh Rana, Shekhar and Rajbir to different places in Yamuna Nagar, Dehradun and Saharanpur. Subsequently, he was arrested at Saharanpur alongwith accused Rajbir and Shekhar and one white Maruti car bearing no. UP 14 B 3007 used at the time of commission of murder of Smt. Phoolan Devi was recovered at their instance.
85. Before I advert on to the discussion of evidence led by the prosecution on this aspect it will be worthwhile to quote certain State v. Sher Singh Rana & Ors. Page 89 of 217 observations recently made by Hon'ble Delhi High Court in the case "Vishal Yadav Vs. State of U.P.", Crl. A, NO. 741/2008 decided on 02.04.2014 wherein the entire law relating to Abscondance of an accused after the crime as discussed in various cases by Hon'ble Supreme Court and other High Courts has been summed up and discussed.
"1399. Learned senior counsel has further submitted that to hold abscondance against the accused, it is insufficient for the prosecution to merely say that the accused persons were absconding from a place at a particular time. The police must prove an attempt by the accused to hide. The police had to keep a watch over the residence and then leave a notice. Positive evidence of the address of the accused persons was required to be stated in the witness box and that the prosecution has failed to lead any evidence on any of the aforenoticed circumstances. It is submitted that no question was put to the accused persons while recording their statements under Section 313 of the Cr.P.C. with regard to their address. 1400. In support of these submissions, reliance has been placed on the pronouncement reported at AIR 1970 Bombay 438 Dinkar Bandhu Deshmukh and Anr. v. State. In para 21 of this pronouncement, the Bombay High Court has held as follows :-
"21. That leaves for consideration only the additional bit of evidence as against accused No. 2 viz., that he was absconding for a week after the incident. The date of the offence was the 19th of December 1968, and accused No. 2 was arrested, only on the 28th of December 1968. In order that the Court can legitimately draw the inference that the subsequent conduct of an accused was that of a guilty person and not of an innocent man, there must be proper material placed before the Court. All that the prosecution has placed before the Court in the present case are two bald statements, both made by Police Sub- inspector Borkar: (1) that the second accused was not in the village on the day soon after the incident when the police went there; and (2) that Police Sub-Inspector Borkar State v. Sher Singh Rana & Ors. Page 90 of 217 had sent about four constables in search of accused No. 2 to some villages. That evidence is, in my opinion, wholly insufficient to lead to the inference that the second accused was absconding since the date of the incident. In order to lead to that inference, the investigating police officer must lay before the Court further evidence to show that continuous watch was kept at the house of the accused concerned, and that a watch was also kept by him at the places which the accused frequented, including his place of work, but the accused did not turn up at all at any of those places during a certain period of time. xxx xxx.‖ (Underlining by us) 1401. On the effect of abscondance as to whether it would lead to inference of the guilt of a person reliance has been palced on AIR 2011 SC 200 Paramjeet Singh alias Pamma v. State of Uttarakhand, wherein the Supreme Court reiterated the applicable principles in the following terms:
"32. In Matru @ Girish Chandra v. The State of U.P., AIR 1971 SC 1050, this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person, observing as under (para 15):
"The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self- preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the State v. Sher Singh Rana & Ors. Page 91 of 217 FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."
33. A similar view has been reiterated by this Court in Rahman v. State of U.P., AIR 1972 SC 110;State of M.P. v. Paltan Mallah and Ors., AIR 2005 SC 733; and Bipin Kumar Mondal v. State of West Bengal, JT 2010 (7) SC 379.
34. Abscondance by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, mere abscondance by the appellant after commission of the crime and remaining untraceable for a period of six days itself cannot establish his guilt. Absconding by itself is not conclusive proof of either of guilt or of a guilty conscience.‖ (Emphasis supplied) Abscondance per se, after commission of a crime is not by itself proof of guilt of a person."
86. At a later stage of the judgment the Hon'ble High Court after discussing the evidence led on record by the prosecution in the said case further went on to discuss the law on abscondance of an accused from Para No. 1604 as under: -
"1604. It is trite that mere abscondance per se after commission of an offence of which such person may not be the author, may not by itself be sufficient to draw an adverse inference against him as it would go against the presumption of innocence of all persons. It is accepted that people may run away upon being suspected of involvement in a crime out of fear of police arrest. However, if other incriminating circumstances are present, then abscondance would be considered, as relevant conduct or circumstance to draw an inference of guilt. we shall now consider the legal effect of this abscondance in State v. Sher Singh Rana & Ors. Page 92 of 217 the facts of the present case.
XVI What is the legal impact of this abscondance? 1605. Learned counsels for the defence have submitted that the appellants were not absconding and that, in any case, abscondance is not a relevant circumstance while considering as to whether the prosecution had established an unbroken chain of evidence which unerringly points towards the guilt of the appellants.
1606. Placing reliance on the pronouncement of the Supreme Court in (2010) 6 SCC 1, Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), it has been argued by Mr. Dayan Krishnan, additional standing counsel that it is a settled legal position that abscondance is not merely relevant conduct but is also a circumstance which cannot be ignored. In this regard, in Siddhartha Vashisht (supra), the Supreme Court had observed as follows:-
"230. From the testimonies of PW 20 and PW 24, it is proved beyond reasonable doubt that accused Sidhartha Vashisht @ Manu Sharma after committing the murder of Jessica Lal fled away from the scene of occurrence. It is further proved from the testimonies of PW 100, PW 101, PW 87 Raman Lamba, PW 85 and PW 80 that from afternoon of 30-4-1999 search was made for the black Tata Safari bearing Registration No. CH 01 W 6535 and for Sidhartha Vashisht @ Manu Sharma, Director of Piccadilly Agro Industries at Bhadson, Kurukshetra, Chandigarh, his farmhouse at Samalkha and Okhla, Delhi.‖ xxx xxx xxx
232. A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. In this regard, it is useful to refer Anant Chintaman Lagu v. State of Bombay, AIR 1960 SC 500 : 1960 Cri LJ 682 (AIR pp. 523 and 526-527, paras 68 and 76) State v. Sher Singh Rana & Ors. Page 93 of 217 "68. Circumstantial evidence in this context means a combination of facts creating a network through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt.
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76. ... This conduct of the accused was so knit together as to make a network of circumstances pointing only to his guilt. ...His method was his own undoing; because even the long arm of coincidence could not explain the multitude of circumstances against him, and they destroy the presumption of innocence with which law clothed him."
233. Thus, it has been proved beyond reasonable doubt that accused Manu Sharma absconded after the incident which is a very relevant conduct under Section 8 of the Evidence Act.‖ (Emphasis by us) 1607. Our attention has also been drawn to a judgment relied upon on behalf of Vishal Yadav reported at (2011) 11 SCC 754, S.K. Yusuf v. State of West Bengal where in para 31 it has been held as follows: -
"31. Both the courts below have considered the circumstance of abscondance of the appellant as a circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. (Vide Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391 : AIR 1971 SC 1050], Paramjeet Singh v. State of Uttarakhand [(2010) 10 SCC 439 : (2011) 1 SCC (Cri) 98 : AIR 2011 SC 200] and Dara Singh v. Republic of India [(2011) 2 SCC 490 : (2011) 2 SCC (Cri) 706]) Thus, in view of the law referred to hereinabove, mere abscondance of the appellant cannot be taken as a circumstance which gives rise to draw an adverse inference against him.‖ State v. Sher Singh Rana & Ors. Page 94 of 217 (Underlining by us) 1608. It therefore cannot be disputed that mere abscondance may not be of significance. However, abscondance by accused persons has to be read in confirmation with the other established circumstances. It cannot be disputed that the same would be relevant conduct under Section 8 of the Evidence Act. Furthermore such conduct for which there is no reasonable explanation except the hypothesis that he is guilty, can be held to be incriminatory.
1609. The discussion by the Supreme Court and the principles laid down in the judgment reported at AIR 2012 Supreme Court 3539 , Shyamal Ghosh v. State of West Bengal are extremely topical and apply with full force to the present case. In para 41 of the report, the court held as follows: -
"41. As we are discussing the conduct of the prosecution witnesses, it is important for the Court to notice the conduct of the accused also. The accused persons were absconding immediately after the date of the occurrence and could not be arrested despite various raids by the police authorities. The investigating officer had to go to different places i.e. Sodhpur and Delhi to arrest the accused persons. It is true that merely being away from his residence having an apprehension of being apprehended by the police is not a very unnatural conduct of an accused, so as to be looked upon as absconding per se where the court would draw an adverse inference. Paramjeet Singh v. State of Uttarakhand [(2010) 10 SCC 439 : (2011) 1 SCC (Cri) 98] is the judgment relied upon by the learned counsel appearing for the appellant. But we cannot overlook the fact that the present case is not a case where the accused were innocent and had a reasonable excuse for being away from their normal place of residence. In fact, they had left the village and were not available for days together. Absconding in such a manner and for such a long period is a relevant consideration. Even if we assume that absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons State v. Sher Singh Rana & Ors. Page 95 of 217 may run away for fear of being falsely involved in criminal cases, but in the present case, in view of the circumstances which we have discussed in this judgment and which have been established by the prosecution, it is clear that absconding of the accused not only goes with the hypothesis of guilt of the accused but also points a definite finger towards them. This court in the case of Rabindra Kumar Pal alias Dara Singh v. Republic of India [(2011 2 SCC 490)]: (AIR 2011 SC 1436: 2011 AIR SCW 606)], held as under: "88. The other circumstance urged by the prosecution was that A-3 absconded soon after the incident and avoided arrest and this abscondance being a conduct under Section 8 of the Evidence Act,1872 should be taken into consideration along with other evidence to prove his guilt. The fact remains that he was not available for quite some time till he was arrested which fact has not been disputed by the defence counsel. We are satished that before accepting the contents of the two letters and the evidence of PW 23, the trial Judge afforded him the required opportunity and followed the procedure which was rightly accepted by the High Court.‖ (Emphasis by us)"
87. Thus merely because after the murder of Smt. Phoolan Devi accused Rajender was allegedly moving around with accused Shekhar and Rajbir to different places or that he alongwith them was arrested by Saharanpur police just outside the court when they were going to surrender in itself is of no consequence at all. Certainly after 27.07.2001 when accused Sher Singh Rana allegedly claimed involvement of accused Rajender in the incident then the police must be on the look out for Rajender. It is thus no strange behaviour on the part of accused Rajender whether he was a part of the conspiracy or not to escape away from the clutches of police. It is often seen that even innocent persons sought to be arrested by the police whether rightly or wrongly in one or the other case State v. Sher Singh Rana & Ors. Page 96 of 217 tend to flee away. Thus even if it is presumed that accused Rajender was moving alongwith accused Rajbir and Shekhar to different places and stayed at different hotels before being finally arrested at Saharanpur then also this fact cannot be considered as an incriminating circumstance and especially when the prosecution has failed to prove any other incriminating circumstance so as to connect him with the conspiracy in question. In fact there is no evidence on record to show that police ever went to the residence or at the work place of Rajender during those days or that he was found to be absconding away.
88. As regards the recovery of impugned white Maruti Car also I may state that prosecution has even failed to prove that the said white Maruti Car was even used at any point of time in the entire conspiracy to commit the murder of Smt. Phoolan Devi. The use of said car could not be connected with the offence in question in any manner. (I shall be discussing at a later stage during the discussion of the case qua accused Rajbir that use of maruti car no. UP 14B 7559 could not be connected with the offence in question in any manner). Thus mere recovery of the said car even if presumed to have been recovered at the instance of the three accused persons (in fact the alleged recovery of the car from a road near the Courts with its key lying on the ground nearby is also doubtful and shall be discussed separately) cannot connect accused Rajender with the conspiracy in question or that he was a part of the said conspiracy much less proving that he was even aware of the objective sought to be achieved by virtue of the said criminal conspiracy.
89. From the aforesaid discussion I am thus of the considered State v. Sher Singh Rana & Ors. Page 97 of 217 opinion that prosecution has completely failed in connecting accused Rajender for any of the offences in question or with the criminal conspiracy in any manner for which charges were framed against him.
Case against accused Surender Singh Negi Prior Acquaintance with Sher Singh Rana
90. The fact that accused Surender Singh Negi was working at the liquor vend of Sher Singh Rana alloted in the name of Pankaj Kalra was sought to be proved by the deposition of PW-62 Pankaj Kalra and PW-130 Ompal Singh. As already discussed PW-62 Pankaj Kalra has completely disowned the prosecution story in this regard. PW-130 Ompal Singh a hardware shop owner having his shop near the said liquor vend also did not support the prosecution case in this regard. The prosecution however placed on record certain information which was sent by PW62 Pankaj Kalra to the Excise Department in this regard and which has been proved by PW-41 A.K. Sharma Dy. Excise Commissioner, Dehradun. I am however not entering into any discussion as to whether the said documents conclusively prove this fact or not, for even if it is presumed for the sake of arguments that accused Surender Singh was indeed working at the said liquor vend and was an old acquaintance of accused Sher Singh Rana then also the prosecution has failed to prove that he was a part of the criminal conspiracy being hatched by accused Sher Singh Rana and others or that he was even aware of the objective sought to be achieved by virtue of said criminal conspiracy.
State v. Sher Singh Rana & Ors. Page 98 of 21791. As already discussed qua the deposition of PW 62 Pankaj Kalra with respect to the alleged meeting at the residence of Sher Singh Rana, there is nothing on record to draw an inference regarding this prior acquaintance or association of accused Surender Singh Negi with accused Sher Singh Rana being incriminatory in nature.
The prosecution has thus failed in proving this circumstance Furnishing of fake surety on the basis of false documents for accused Rajender.
92. I may state that though the prosecution has led evidence of court officials of the court of Ld. ACJM, Haridwar or that of handwriting experts and witnesses from FSL and transport authority to show that accused Surender Singh stood surety for accused Rajender impersonating as Virender Giri and produced false documents of a two wheeler scooter. However I am not entering into any discussion in this regard as the impugned offence u/s 193 IPC was admittedly committed during the course of judicial proceedings before a court of law at Haridwar. Admittedly there is no complaint u/s 195 Cr.P.C. which was mandatorily required to be filed by the court concerned and so even the very cognizance of the said offence u/s 193 IPC taken in the present case is bad in law.
93. Ld. Special PP for the State though sought to argue that no such complaint u/s 195 Cr.P.C. was required. In this regard he even placed reliance upon the case, Iqbal Singh Marwah Vs. Meenakshi Marwah, II (2005) CCR 16 (SC) and State of Tamil Nadu Vs. Nalini, 99 Cr.L.J. 3124, stating that since the falsification of the documents took place outside the State v. Sher Singh Rana & Ors. Page 99 of 217 court so no complaint u/s 195 Cr.P.C. was required. Certainly there can not be any dispute with respect to the preposition of law as mentioned in the said case law but in the case in hand the case against accused is that besides producing false documents he also impersonated himself before the court of Ld. ACJM, Haridwar. Thus the very act of appearing as a surety impersonating as Virender Giri by accused Surinder Singh committed before the court of Ld. ACJM, Haridwar during the course of judicial proceedings also amounted to commission of the offence u/s 193 IPC and for which complaint u/s 195 Cr.P.C. is mandatory from the court concerned. In these circumstances the very cognizance of the offence u/s 193 IPC by this court was bad in law.
94. The reason why I am not discussing the evidence of the handwriting experts or that of the transport authority officials led by the prosecution is that in the absence of prosecution having failed in establishing that accused Surender Singh Negi was either a part of the conspiracy so hatched by accused Sher Sing Rana or was even aware of the objective sought to be achieved by the said criminal conspiracy so the courts at Delhi even lacks jurisdiction under the Code of Criminal Procedure to try the said offence u/s 193 IPC or consequently the offences u/s 419/468/471 IPC. In these circumstances any expression of opinion by this court qua the said piece of evidence might prejudice the prosecution or the accused if at any future date any prosecution is launched against accused Surender Singh Negi before the courts at Haridwar.
95. It is thus clear that the prosecution in these circumstances has completely failed in proving its case against accused Surender State v. Sher Singh Rana & Ors. Page 100 of 217 qua the charge of conspiracy and thus as regards the charge for the offence of perjury and falsification of documents or their use thereof or the offence of cheating by impersonation the courts at Delhi lacks jurisdiction and in fact the very cognizance for the offence u/s 193 IPC taken by this court qua the offence of perjury in the absence of complaint u/s 195 Cr.PC from the Court concerned was bad in law.
Case against accused Rajbir
96. The case of prosecution against accused Rajbir is under two heads. Firstly like accused Surender on 26.07.2001 he stood surety for accused Rajender in the courts at Haridwar on the basis of false documents and while also impersonating himself as Shekhar Singh. Secondly he was an active member of the conspiracy so hatched and in fact was very much present near the place of incident in one white Maruti Car no. UP-14B-7559 as a backup vehicle to facilitate the escape of accused sher Singh Rana, Shekhar and Dhan Parkash soon after the commission of offence.
Prior Acquaintance with accused Sher Singh Rana
97. The prior acquaintance of accused Rajbir with accused Sher Singh Rana stands proved not only from the photographs of a visit of Smt. Phoolan Devi to Haridwar as placed and proved on record by the prosecution but also PW Uma Kashyap has stated so. Their prior acquaintance has not been even disputed by accused Rajbir and Sher Singh Rana also and it can be thus safely presumed that they both were earlier acquainted with each other. However whether this acquaintance in State v. Sher Singh Rana & Ors. Page 101 of 217 itself can amount to an incriminating circumstance or whether this prior acquaintance alongwith other circumstances sought to be proved by the prosecution can amount to an incriminating circumstance against accused Rajbir. This is the moot question to be looked into.
98. Certainly the mere prior acquaintance of accused Rajbir with accused Sher Singh Rana can be of no consequence at all in itself to draw any conclusion about his involvement in the conspiracy in question. As regards his participation in a meeting held at the house of accused Sher Singh Rana to discuss the various contours of the conspiracy being so hatched, the same could not be proved by the prosecution as already discussed by me while discussing the deposition of PW 62 Pankaj Kalra.
The prosecution has thus failed to prove this circumstance.
Presence of accused Rajbir Singh in white Maruti Car No. UP-14B- 7559 near Gol Dak Khana on the day of incident).
99. Coming now to the case of prosecution as regards the role of accused Rajbir on the actual date of offence I.e 25.07.2001 I may state at the outset itself that prosecution has miserably failed in doing so. The reasons are ample and clear.
100. The travel of accused Rajbir with co-accused Shekhar and Dhan Parkash from Roorkee to Delhi on 25.07.2001 in the white Maruti Car No. UP-14B-7559 was sought to be proved from the deposition of PW- 118 Naresh. He was the owner of "Mohan Motors" at Ghaziabad where the accused persons allegedly got their said car on the way repaired. However State v. Sher Singh Rana & Ors. Page 102 of 217 this witness disowned the prosecution story qua the material aspect that he had seen accused Rajbir or any other person on that day having come to his garage with the said maruti car to get it repaired. He merely stated that he was sitting inside his car garage and thus was not aware as to who had come to get any such car repaired. Thus this aspect of the prosecution case does not get any support from his deposition.
101. Coming now to the deposition of PW ASI Sri Krishan of Traffic Police who was present on the day of incident at near Gole Dak Khana and had sought to challan Rajbir on the ground of wrong parking. One would have found no fault or any abnormal circumstance in the fact that he let off a car driver on his request that he was from outside Delhi and was not aware of the rules. Such a conduct is not very uncommon on the streets of Delhi. Often the police officials tend to not challan the driver of an offending vehicle and allows him to go away after warning him to not repeat it in furture. However what is strange is that while allowing him to go away ASI Sri Krishan chose to note down the car number on the cover of his challan book. This aspect does not appear to be a mere co-incidence especially when in the overall facts and circumstances of the case the investigation conducted by the police is also not free from doubts. This act of ASI Sri Krishan appears to be highly improbable and unbelievable. Moreover a perusal of the said challan book shows that except noting down the vehicle numbers involved in the present case ASI Sri Krishan did not note down the number of any other vehicle on the said challan book Ex. PW 24/1 during the period from 25.07.01 to 29.07.01 when he was using the said challan book.
State v. Sher Singh Rana & Ors. Page 103 of 217102. The deposition of ASI Sri Krishan thus appears to be not reliable especially in the absence of some cogent and convincing piece of corroborating evidence.
103. Furthermore as already discussed the evidence sought to be led by the prosecution qua the use of mobile phones is clearly inadmissible in law and thus cannot be taken into consideration against the accused.
104. Apart from the aforesaid circumstances I may also state that as per the prosecution case itself no further role was admittedly played by accused Rajbir at the actual time of commission of murder of Smt. Phoolan Devi. Drawing of any presumption that other co-accused persons were sitting in his car prior to the incident will be clearly a fallacious conclusion not borne out from any legally admissible evidence led by the prosecution but based on the disclosure statements of accused persons only which are hit by section 25 Evidence Act and is thus not permissible in law. One other statement made by Uma Kashyap and her husband Vijay Kashyap that while they were traveling with accused Sher Singh Rana from Roorkee to Delhi on the morning of 25.07.2001 they had heard Sher Singh Rana talking on mobile phone and calling names Rajbir or Shekhar repeatedly cannot amount to any incriminating circumstance even if the deposition of PW-17, Uma Kashyap and PW-18, Vijay Kashyap is taken to be correct in this regard. There may be number of circumstances in which a person may tend to call any of his acquaintance (Rajbir admittedly was a prior acquaintance of accused Sher Singh Rana) and thus this fact in itself does not lead to any conclusion that Rajbir was traveling with other two co- accused namely shekhar and Dhan Parkash in another white Maruti car in State v. Sher Singh Rana & Ors. Page 104 of 217 furtherance of any criminal conspiracy.
The prosecution has thus failed to prove this circumstance.
Abscondance of accused Rajbir Singh
105. The next circumstance which the prosecution has sought to prove is the abscondance of accused Rajbir alongwith other co-accused persons soon after the death of Smt. Phoolan Devi to different places and finally his arrest from outside the courts at Saharanpur where he allegedly came to surrender alongwith accused Rajender and Shekhar. As already mentioned by me while discussing the case of prosecution qua accused Rajender that mere absconding away of a person after the incident whether he was involved in the commission of offence or not cannot be per se treated as an incriminating circumstance especially when the said circumstance does not stand supported from any other incriminating circumstance. Thus nothing adverse can be read against him in merely fleeing away from his house alongwith other co-accused persons even if this fact is presumed to be true as no other incriminating circumstance stands proved on record. Once again there is also nothing on record to show that police went to the house of Rajbir prior to his arrest or that he was found to be missing.
Recovery of white Maruti Car and six chance finger prints
106. As regards the recovery of impugned white maruti car from a gali near the court complex Saharanpur I may state that not only the said car was found to be parked in a public gali with its key lying on the ground State v. Sher Singh Rana & Ors. Page 105 of 217 nearby but even otherwise even if the car is presumed to have been recovered at his instance then also when the prosecution has failed to prove in any manner the involvement of the said car in the conspiracy or even its presence at near the place of occurrence on the day of incident, the recovery of the said car is completely of no consequence. It is also of no significance at all that the said white maruti car was owned by accused Sher Singh Rana or not and since Rajbir was his old acquaintance so nothing adverse can be read against accused Rajbir even if at some point of time he was found to be in possession of the said white maruti car. Similar is the position when certain chance finger prints were found from the said white maruti car and upon comparison the same tallied with that of accused Rajbir. No adverse inference can be drawn from the said chance prints found inside the car and especially when use of the said car in the entire conspiracy could not be proved by the prosecution.
107. I may thus once again reiterate that since the involvement of white maruti car in the impugned conspiracy could not be proved so its recovery at the instance of accused Rajbir is also of no consequence. Similarly when the deposition of ASI Shri Krishan as regards the presence of accused Rajbir with the said white maruti car at Gole Dak Khana on the day of incident appears to be doubtful so the subsequent identification of accused Rajbir from his photograph by ASI Sri Krishan is also of no consequence at all. In fact the presence of PW-97 Jeet Singh, the crane driver at near Gol Dak Khana on the day of incident when ASI Sri Krishan was talking to Rajbir is also very doubtful in the overall facts and circumstances of the case.
State v. Sher Singh Rana & Ors. Page 106 of 217108. The prosecution case appears to be relying upon too many co-incidences and the same puts the court more on its guard to closely scrutinize the evidence qua such witnesses of various co-incidences.
109. PW-97 Jeet Singh, the crane driver stated that when ASI Sri Krishan was posted in West District then at that time his crane was also attached on traffic police duty in West District only. It was quite strange that on the day of incident Jeet Singh alongwith his crane happened to be in New Delhi District even through his crane was not attached on traffic police duty in the New Delhi District and he happened to meet ASI Sri Krishan.
110. Be that as it may, when the deposition of ASI Sri Krishan itself does not inspire confidence so the claim of this crane driver that he also saw Rajbir with the said white maruti car on that day at near Gol Dak Khana appears to be highly doubtful.
111. In view of my aforesaid discussion I am thus of the considered opinion that prosecution has miserably failed in establishing the complicity of accused Rajbir in the conspiracy in any manner whatsoever. It is for this reason that his appearance as a surety for accused Rajender in the courts at Haridwar on 26.07.2001 may be while impersonating as Shekhar Singh or on the basis of false documents cannot be taken cognizance of by this court at Delhi. I need not to repeat my discussion in this regard as mentioned while discussing the case of prosecution qua accused Surender Singh.
112. Thus in so far the offence of perjury or of falsification of documents or of cheating by impersonation against accused Rajbir is State v. Sher Singh Rana & Ors. Page 107 of 217 concerned this court at Delhi lacks jurisdiction and even the very cognizance of the offence of perjury in the absence of a complaint u/s 195 Cr.P.C. from the concerned court at Haridwar is bad in law.
The case of prosecution qua involvement of accused Rajbir in the impugned criminal conspiracy thus does not stand proved at all.
Case against accused Vijay Singh Rana @ Raju
113. As already discussed qua the deposition of PW 62 Pankaj Kalra who was the sole witness examined by the prosecution with regard to the meeting allegedly held at the house of accused Sher Singh Rana wherein the entire plan was discussed and role assigned to different accused persons, the said fact does not stand proved as PW62 Pankaj Kalra chose not to support the case of prosecution in this regard. Thus the fact that such a meeting took place between various co-accused persons does not stand proved. The mere fact that accused Vijay Singh Rana was the brother of accused Sher Singh Rana is also no incriminating circumstance in itself.
114. As regards mobile phone no. 9837222779 allegedly borrowed by him from PW3 Kovid Batra I may state Kovid Batra has though stated that accused Vijay Singh Rana borrowed his mobile phone no. 9837222779 for his brother Sher Singh Rana but there is no legally admissible evidence to support the conclusion that it was given by accused Vijay Singh Rana to accused Sher Singh Rana for being used in the present conspiracy or that accused Vijay Singh Rana was aware of any such conspiracy being hatched by accused Sher Singh Rana. (Though State v. Sher Singh Rana & Ors. Page 108 of 217 accused Sher Singh Rana has admitted in his statement u/s 313 Cr.P.C. that he borrowed mobile phone no. 9837222779 from PW-3 Kovid Batra. He however denied that accused Vijay Singh Rana borrowed it from PW-3 Kovid Batra). Thus even if for the sake of arguments it is presumed that the said mobile phone was given to accused Sher Singh Rana by accused Vijay Singh Rana after borrowing it from Kovid Batra then also there is nothing on record to suggest that accused Vijay Singh Rana was even aware of the purported use of the said mobile phone by accused Sher Singh Rana in the present conspiracy. The prosecution case in this regard relies upon the disclosure statements of the accused persons only and the same are clearly hit by section 25 Evidence Act. There is also nothing on record to suggest that accused Vijay Singh Rana was even aware of the objective of the said conspiracy much less being a party to the said conspiracy.
115. Apart from the aforesaid facts I may again reiterate that the call detail record or the cell ID chart with respect to the various mobile phones alleged to have been used by the accused persons in carrying out the present conspiracy does not stand proved by any legally admissible evidence, for no certificate u/s 65B of the Indian Evidence Act has been placed or proved on record. Thus another important link which could have proved the use of said mobile phone in the present conspiracy is also missing. Drawing of any conclusion to the contrary will be primarily on the basis of conjunctures and surmises only.
116. The contention of Ld. Special PP that accused Vijay Singh Rana facilitated the release of Rajender Singh and Sharwan on bail on the State v. Sher Singh Rana & Ors. Page 109 of 217 basis of fake sureties or on the basis of false documents is also not borne out from any legally admissible evidence and the same is clearly a conclusion drawn by the investigating agency on the basis of disclosure statements made by the accused persons only. Even PW 138 Advocate Ramesh Chander Aggarwal and PW 139 Laxman Singh, the clerk of Advocate Satish Chaudhary or PW 144 Satish Chaudhary through whom the various proceedings of surrendering in the court or the subsequent proceedings for release of accused Sharwan and Rajender from jail took place have not supported the aforesaid conclusion.
117. There is yet another aspect of the matter, even if it is presumed for the sake of arguments that accused Vijay Singh Rana facilitated the release of accused Rajender and Sharwan on bail on the basis of fake surety and false documents, then also in the absence of there being no evidence to prove that accused Vijay Singh Rana was a part of the present conspiracy hatched by accused Sher Singh Rana so at the most accused Vijay Singh Rana by a stretch of arguments can only be prosecuted alongwith accused Surender, Rajbir and Pardeep (since deceased) for the offence of perjury or for tendering false documents in judicial proceedings only before the courts at Haridwar only. Once again the courts at Delhi lacks jurisdiction to try any such offence.
118. As regards the contention that after the incident accused Sher Singh Rana rang up accused Vijay Singh Rana to flee away from the house alongwith all family members and PW62 Pankaj Kalra and that he met accused Sher Singh Rana at Haridwar Railway Station on 26.07.2001 or that he alongwith other family members stayed at a hotel in Mussoorie State v. Sher Singh Rana & Ors. Page 110 of 217 also does not amount to any incriminating circumstance. As already mentioned that even if it is presumed that accused Sher Singh Rana was involved in the commission of murder of Smt. Phoolan Devi (I shall be discussing the case of prosecution qua accused Sher Singh Rana at a later stage) then also there is no evidence on record to suggest that accused Vijay Singh Rana was aware of the conspiracy so hatched by accused Sher Singh Rana or was even aware of the objective of the conspiracy prior to 25.07.2001 or even when he met accused Sher Singh Rana at Haridwar Railway Station on 26.07.2001. Thus even if he fled away alongwith other family members then at the most the same can be construed as an advice by accused Sher Singh Rana to his family members to go away from the house lest the police may harass them in order to trace out accused Sher Singh Rana. Such conduct does not appear to be improbable. In fact what else could be the reason for parents of Sher Singh Rana to flee away. Moreover as earlier also mentioned why the family members of Sher Singh Rana will take alongwith them PW62 Pankaj Kalra. In fact PW62 Pankaj Kalra has denied that he had gone alongwith accused Vijay Singh Rana and other family members soon after the incident to Mussoorie and stayed in a hotel.
119. Accused Vijay Singh Rana infact led evidence in defence by calling the officers of telephone department from Roorkee to show that calls were being made from the telephone installed at their house during the period when police claims that he alongwith other family members had fled away from the house.
120. As regard the disclosure statement made by accused Vijay State v. Sher Singh Rana & Ors. Page 111 of 217 Singh Rana the same is clearly inadmissible in law being hit by section 25 Evidence Act. Neither any fact nor anything was recovered pursuant thereto which may make it admissible under section 27 Evidence Act.
121. Be that as it may, in view of my aforesaid discussion I am of the considered opinion that prosecution has miserably failed in proving its case against accused Vijay Singh Rana that either he was part of the conspiracy in question in any manner or was even aware of the objective sought to be achieved by any such conspiracy.
The prosecution has thus clearly failed in proving its case against accused Vijay Singh Rana @ Raju.
Case against accused Amit Rathi
122. Once again the prior acquaintance of accused Amit Rathi with accused Sher Singh Rana being both residents of Roorkeee even if presumed to be existing can not be held to be an incriminating circumstance on its own. What is however required to be seen is as to whether the said prior acquaintance if taken into consideration with other circumstances sought to be proved by the prosecution can amount to an incriminating circumstance and thereby leading to prove that he was a part of the impugned criminal conspiracy. No doubt the fact that accused Amit Rathi was running a gun house in the name of "Subhash Gun House" in Roorkee has not been disputed even by accused Amit Rathi himself. However there is no legally admissible evidence on record to show that he ever supplied one revolver made "WEBLEY & SCOTT LTD, to accused Sher Singh Rana, except for the disclosure statements of the two accused State v. Sher Singh Rana & Ors. Page 112 of 217 persons which is clearly hit by S. 25 Evidence Act. There is nothing else on record to support this conclusion. Thus drawing of any such presumption merely on the basis of conjunctures and surmises will not only be fallacious but will be also contrary to the settled principles of Law.
123. As regards getting the grooves of the revolver tampered with so that it may not tally with the bullets fired from it PW 70 Afaq Ahmed has completely disowned the prosecution story to this effect. He even denied that at any point of time he was working at the shop of accused Amit Rathi or that any revolver was ever given to him for repair much less for tampering with its grooves. This witness was accordingly declared hostile by Ld. Special PP and was cross examined at length but nothing material could be elicited from his mouth which could either favour the case of the prosecution or may lead me to disbelieve his deposition in any manner.
124. Ld. Counsel for accused Amit Rathi even pointed out that the ballistic expert also did not observe in his report that the grooves of the two revolvers were found tempered and thus this theory of prosecution that accused Amit Rathi got the grooves of the revolvers tampered with does not found support even from the ballistic expert report.
125. As regards the recovery of a diary on 16.08.2001 from the house of accused Sher Singh Rana in which the number of accused Amit Rathi or accused Parveen Mittal were written, I may state that the same is also of no consequence except that it may reflect some prior interaction between the two but not necessarily in respect of the conspiracy in question.
State v. Sher Singh Rana & Ors. Page 113 of 217126. The prosecution also sought to prove that after the commission of the offence on 25.07.01, accused Sher Singh Rana informed accused Amit Rathi on telephone that he should abscond away as the police might apprehend him. However I may again state that in this regard also prosecution has failed as even this could not be proved that the telephone in question on which Sher Singh Rana allegedly rang up was installed at the shop of accused Amit Rathi much less that after the incident any such phone call was made by accused Sher Singh Rana. As already discussed the call details or cell I-D chart of the mobile phones allegedly used by accused Sher Singh can not be read into evidence in the absence of Certificate u/s 65 B Indian Evidence Act 1872. The prosecution has thus clearly failed in this regard also.
127. In view of my aforesaid discussion, I am thus of the considered opinion that the prosecution has been unable to lead any evidence which could show that accused Amit Rathi was in any manner involved in the hatching of the said conspiracy or that he was aware of any such criminal conspiracy much less of the objective sought to be achieved in pursuance to the said criminal conspiracy.
128. The prosecution has thus completely failed to prove that accused Amit Rathi at any point of time was in possession of any unlicensed arm much less that he supplied the same to accused Sher Singh Rana.
The prosecution has thus clearly failed in proving its case against accused Amit Rathi.
State v. Sher Singh Rana & Ors. Page 114 of 217Case against accused Parveen Mittal.
129. As regard the fact that accused Parveen Mittal was a practicing Advocate at Roorkee courts, the same stands proved from the deposition of Parveen Mittal himself also when he entered the witness box as DW-1 u/s 315 Cr.PC. As regards the prior acquaintance of accused Parveen Mittal with accused Sher Singh Rana the same though has not been proved by way of any legally admissible evidence led by the prosecution viz. that he either ever represented accused Sher Singh Rana in any matter before any Court of Law or in any other manner he was known to him but even if the said prior acquaintance is presumed for the sake of arguments then also as already discussed earlier while discussing the case of other accused persons can not in itself amount to an incriminating circumstance.
130. As regard the supply of one revolver "MADE IN INLEND" by accused Parveen Mittal to accused Sher Singh Rana, the prosecution sought to prove it by way of the deposition of PW 62 Pankaj Kalra. Once again as already mentioned qua the deposition of PW 62 Pankaj Kalra he has chosen to not support the case of prosecution on any of the material aspect including supply of any such revolver by accused Parveen Mittal to Sher Singh Rana in his presence. He specifically denied the suggestion put to him by Ld. Special PP in his cross-examination that in his presence any revolver was handed over by accused Parveen Mittal to accused Sher Singh Rana wrapped in a polythene bag.
131. As regard the alleged legal advise given by accused Parveen State v. Sher Singh Rana & Ors. Page 115 of 217 Mittal to accused Sher Singh Rana, I may again state that the same is sought to be proved by the prosecution only by virtue of the disclosure statements of the accused persons which are clearly hit by S. 25 Evidence Act and can not be read into evidence.
132. As regard the diary recovered from accused Sher Singh Rana in which the numbers of accused Amit Rathi or accused Parveen Mittal were written, the same once again can at the most go to suggest that accused Sher Singh Rana had some prior acquaintance with them and nothing more. ( I am not at all entering into any discussion as regard the contention of Ld. defence Counsel that the diary was subsequently planted by the police, for the same is not required).
133. In view of my aforesaid discussion, I am thus of the considered opinion that prosecution has failed to prove even by pre- ponderance of probability much less beyond shadows of all reasonable doubts that accused Parveen Mittal was in any manner connected with the hatching of the impugned criminal conspiracy by accused Sher Singh Rana or others or that he participated in it in any manner or that he was even aware of the objective sought to be achieved by the said criminal conspiracy.
134. The prosecution has thus completely failed to prove that accused Parveen Mittal at any point of time was in possession of any unlicensed arm much less that he supplied the same to accused Sher Singh Rana.
The prosecution has thus failed in proving its case against accused State v. Sher Singh Rana & Ors. Page 116 of 217 Parveen Mittal.
Case against accused Keshav Chauhan.
135. Accused Keshav Chauhan is being tried only for the offence u/s 201 IPC for having caused disappearance of the evidence of commission of crime. The prosecution has sought to prove its case against accused Keshav Chauhan by virtue of deposition of PW-6 Surender Sharma, PW-127 Ram Chander Kashyap, PW-141 Ranjit Singh and PW-160 Umed Singh. It is the case of prosecution that accused Keshav Chauhan who was a worker of the party of Smt. Phoolan Devi was present in the house of Smt. Phoolan Devi on the day of incident i.e. 25.07.01. Soon after the attack on Smt. Phoolan Devi and Ct. Balender took place and people gathered over there then accused Keshav Chauhan picked up the two country made pistols (weapons of offence) which were dropped at the spot by the two assailants and concealed them in his clothes and later on in the garage of the house of Smt. Phoolan Devi with a view to sell them at some later point of time in order to earn some money. PW-6 Surender Sharma who was a chance witness however saw him doing so before Keshav Chauhan sat in the maruti van in which the two injured were removed to hospital.
136. As per the charge sheet (page 22 of the charge-sheet) the case of prosecution is that PW 141 Ranjeet Singh saw two country made pistols lying in the garage of H. No. 44, Ashoka Road and in order to preserve them he kept them in a corner of the garage. He thereafter informed about it to PW 127 Ram Chander Kashyap who in turn informed State v. Sher Singh Rana & Ors. Page 117 of 217 about it to Umed Singh, husband of Smt. Phoolan Devi. Thereafter on 30.07.01 Umed Singh informed the police in writing about two country made pistols lying in the garage.
137. Before I advert on to the nature of deposition of the said witnesses, I may state at the threshold itself that the story so propounded by the investigating agency appears to be highly improbable. It is highly unbelievable that soon after the commission of such a murderous assault on Smt. Phoolan Devi and her PSO just outside the house of Smt. Phoolan Devi resulting in gathering of a number of persons in shock and surprise and arrival of police within 5 minutes of removal of Smt. Phoolan Devi to hospital from the spot one poor person who was present in the house of Smt. Phoolan Devi will go out and pick up the weapons of offence from the spot and conceal them in the garage of the house with a view to sell them at a later point of time in order to earn money. In fact as per PW-6 Surender Sharma, Keshav Chauhan also sat in the said maruti van in which Smt. Phoolan Devi and Ct. Balender were removed to hospital and prior to it he had picked up the two "kattas" lying on the spot. This conduct is highly improbable human conduct and is difficult to digest. Infact from the nature of investigation conducted it is apparent that the said story has been cooked up by the police later on in order to cover up certain gaps and lacunas in their investigation. It is beyond comprehension as to why Insp. G.L. Mehta who initially recorded the statement of witness Kali Charan or subsequently Insp. Suresh Kaushik who was entrusted with the further investigation of the matter after registration of the FIR much less any of the other police officers who reached the spot did not make any efforts to trace out the said two missing country made pistols (weapons of offence) from State v. Sher Singh Rana & Ors. Page 118 of 217 the spot on that day itself.
138. Complainant Kali Charan in his statement had stated that the assailants initially fired from the country made pistols and thereafter they dropped them at the spot itself and then fired from the two revolvers they were holding in their other hand. Thus it was very much to the knowledge of Insp. G.L. Mehta and other police officials that two weapon of offence out of the four were dropped at the spot itself by the assailants. The entire case file is silent as to why no efforts were made to trace out the said missing weapons of offence from the spot on the day of incident itself or even thereafter till 30.07.2001.
139. Apart from the aforesaid circumstances it is also quite strange that Ram Chander or Ranjeet Singh despite coming to know about accused Keshav Chauhan having lifted the said two country made pistols from the spot did not report the matter to the police.
140. Apart from the aforesaid circumstances it will be worthwhile to see as to what PW 127 Ram Chander Kashyap or PW 141 Ranjeet Singh deposed in the Court. Their deposition will again fortify my initial observation that the conclusions mentioned in the charge-sheet does not co-relate with the evidence led by the prosecution.
141. PW-127 Ram Chander Kashyap stated that on 26.07.01 Ranjeet Singh told him that two country made pistols were lying hidden in the garage of the bungalow beneath the table. He further stated that he however told him that we should not tell about it to anybody for it is the duty of the police to investigate. He further stated that on 27.07.01 State v. Sher Singh Rana & Ors. Page 119 of 217 accused Keshav Chauhan came to the bungalow and he heard him saying to PW-141 Ranjeet Singh that two country made pistols lying in the garage were the weapons used in the crime i.e. in the murder of Smt. Phoolan Devi and the attack on Ct. Balender and also that those two fire arms were picked up by him from the place of occurrence after the incident and he placed them in the garage.
142. PW 127 Ram Chander Kashyap further stated that he disclosed and narrated the above facts to PW 160, Umed Singh, husband of Smt. Phoolan Devi. He further stated that Umed Singh also did not take any further action when he informed him about the said facts as he i.e. Umed Singh was also terrified.
143. PW 141 Ranjeet Singh on the other hand stated that on the night of 25.07.01 he had stayed in the garage of H.No. 44, Ashoka Road and when on the next morning he was cleaning the garage then he found some iron articles, which the police later on told him were fire arms. He further stated that the said fire arms were kept by him in a cloth bag and were put below a wooden chowki lying in the garage. He further stated that on the next day i.e. on 27.07.01 PW Ram Chander Kashyap disclosed to him that one Keshav Chauhan has put the fire arms in the garage. He further stated that after Ram Chander Kashyap told him so then he i.e. PW-141, Ranjeet Singh told about the fact of recovery of fire arms to PW
-104, Munni Devi, the sister of Smt. Phoolan Devi.
144. None of the aforesaid two witnesses were either declared hostile or cross-examined on behalf of the prosecution on any ground State v. Sher Singh Rana & Ors. Page 120 of 217 whatsoever. It is thus clear that both these witnesses not only contradicted each other but also deposed contrary to the contents of the charge-sheet. While PW 127, Ram Chander Kashyap stated that he had over heard Keshav Chauhan telling PW 141 Ranjeet Singh that he picked up the fire arms which were the weapon of offence from the spot soon after the incident but PW 141 stated that Ram Chander Kashyap told him that the fire arms were picked up by Keshav Chauhan from the spot and were hidden in the garage.
145. Moreover PW 141, Ranjeet Singh stated that he disclosed about these facts to PW 104 Munni Devi but PW 127 Ram Chander Kashyap stated that he disclosed about the two country made pistols lying in the garage to Umed Singh but Umed Singh also did not take any action as he too was terrified.
146. From the aforesaid nature of deposition of these two witnesses it is thus crystal clear that the two country made pistols were not recovered in the manner as is now projected to have been recovered. This again supports my aforesaid discussion that such conduct of a person in lifting two weapons of offence from the spot soon after the incident i.e. within few minutes of the firing incident having taken place is highly improbable and unbelievable conduct. Thus such a conduct attributed to accused Keshav Chauhan is per se not believable.
147. It will be also worthwhile to point out that even IO Insp. Suresh Kaushik in his examination-in-chief stated that on 30.07.2001 PW 141 Ranjeet Singh told him about the country made pistols lying in the State v. Sher Singh Rana & Ors. Page 121 of 217 garage. He was thus completely silent that PW 160 Umed Singh had informed him about the said country made pistols lying in the garage much less in writing.
148. In view of my aforesaid discussion I am thus of the considered opinion that prosecution has miserably failed to even prove by pre-ponderance of probabilities much less beyond reasonable doubts that the two weapon of offence were picked up by accused Keshav Chauhan from the spot soon after the incident or were hidden in the garage of H.No. 44, Ashoka Road by him.
The prosecution has thus clearly failed in proving its case against accused Keshav Chauhan.
Certain unexplained circumstances in the prosecution case.
149. At this stage I would like to point out another interesting aspect of the present case. The charge sheet filed by the police states that though two country made pistols were provided to accused Sher Singh Rana by one Mustkeem and later on Mustkeem was found lodged in one case of PS Kotwali, Muzaffar Nagar. The charge sheet also states that father of accused Sher Singh Rana namely, Surender Singh had deliberately got his surety withdrawn on 18.07.2001 in the case under Excise Act already pending against accused Sher Singh Rana and thereby facilitating Sharwan to go inside the jail while impersonating as accused Sher Singh Rana. The charge sheet however thereafter states that the said two persons could not be charge-sheeted due to lack of sufficient evidence. (Page 33 of the charge-sheet) State v. Sher Singh Rana & Ors. Page 122 of 217
150. These facts rather high light the vague, arbitrary and double standards of the investigating agency. While on the one hand they arrayed a number of accused persons namely, Parveen Mittal, Amit Rathi and Vijay Singh Rana primarily on the basis of deposition of PW62 Pankaj Kalra or PW-70 Afaq Ahmed, an employee at the shop of accused Amit Rathi but for reasons best known to the investigating agency it did not investigate properly the facts as to when and how Mustkeem made available the two country made pistols to accused Sher Singh Rana or whether accused Surender Singh Rana, father of Sher Singh Rana acted in furtherance of the conspiracy so hatched by accused Sher Singh Rana and others. In fact as discussed earlier PW-62 Pankaj Kalra by virtue of the investigation so carried out appears to be a person who was aware of the conspiracy being so hatched but later on backed out and did not join the conspiracy any further. As per prosecution case he thereafter fled away from his house after the incident alongwith family members of accused Sher Singh Rana. PW-62 Pankaj Kalra as discussed earlier has however completely disowned the prosecution story in this regard in his deposition in the Court.
151. However, as earlier also mentioned the investigation as carried out in the present case is not free from doubts and as I shall be discussing later on also while discussing the case qua accused Sher Singh Rana, Shekhar and Dhan Parkash that the investigation in the present case has been carried out in a very shoddy manner either with a view to shield the real culprits or with a view to work out a high profile case to avoid any pressure from the higher authorities.
152. There is no explanation on record as to by what measure the State v. Sher Singh Rana & Ors. Page 123 of 217 evidence against accused Mustkeem or Surender Singh Rana was found short. If accused Amit Rathi or Parveen Mittal could have been arrayed for supplying weapons to accused Sher Singh Rana then how the role of Mustkeem stood on a different footing.
153. Similarly if Sher Singh Rana was charge sheeted for creating a false plea of alibi by getting accused Sharwan Kumar imprisoned as Sher Singh Rana then the said act could not have been possible without Surender Singh first withdrawing his surety and producing accused Sher Singh Rana in the court. In fact PW-138 Advocate Ramesh Chander Aggarwal stated so that one person whose name was disclosed to him as Sher Singh Rana was produced in the court by Surender Singh Rana. Thus producing Sharwan Kumar in the court as Sher Singh Rana could not have been possible unless Surender Singh was also involved in the conspiracy. Alternatively if Surinder Singh Rana was not involved in the conspiracy than it also cannot be concluded that Sharwan Kumar went to jail impersonating as Sher Singh Rana in pursuance to the conspiracy in question herein. (I shall be however discussing this aspect at length at a later stage while discussing the case qua accused Sharwan Kumar).
154. Thus the fact remains that the investigation in the present matter has a number of unexplained circumstances which clearly raises grave shadows of doubts as to the veracity or correctness of the investigation so carried out.
Whether the assailants of Smt. Phoolan Devi were masked
155. Before adverting further to discuss the case of prosecution State v. Sher Singh Rana & Ors. Page 124 of 217 qua accused Sher Singh Rana, Shekhar or Dhan Parkash I would first like to deal with one important aspect of the prosecution case as to whether the assailants or the driver of car bearing no. CIM-907 in which the assailants fled away from the spot after the incident were wearing masks at the time of incident or not.
156. As already mentioned the accused persons have been harping upon this aspect of the matter right from the beginning of the trial stating that as per various communications undertaken by senior officers of the police on the day of incident itself the assailants of Smt. Phoolan Devi were masked persons. They produced before the court copy of such communications made by the senior officers of police to various authorities in Govt. of NCT of Delhi, Govt of India or to the Secretary General Lok Sabha on the day of incident itself i.e. on 25.07.2001, having been obtained by them under RTI. They also placed on record copies of proceedings of Lok Sabha of the day of incident i.e. 25.07.2001 regarding the circumstances in which Smt. Phoolan Devi, the then, Member of Parliament was shot dead or that of the proceedings which took place on 31.07.2001 regarding the obituary reference made in the Lok Sabha. The statements with regard to the circumstances in which the death of Smt. Phoolan Devi took place were made in the Lok Sabha by, the then, Home Minister, Govt. of India Sh. L. K. Advani.
157. Before I advert on to the contents of the said communications or the statements made in the Lok Sabha on the two dates it will be worthwhile to mention certain objections primarily raised by Ld. Special PP for the State as regards the admissibility of these documents. The accused State v. Sher Singh Rana & Ors. Page 125 of 217 persons received copies of the said communications and record of proceedings under RTI from Delhi Police and from Lok Sabha Secretariat and accused Shekhar Singh thereafter placed them on record in his deposition as DW2 when he entered the witness box u/s 315 Cr.P.C. Ld. Special PP for the State however objected to the mode of proof of the said documents.
158. In this regard it will be worthwhile to mention that during the course of trial a number of applications were moved by the accused persons seeking to summon Sh. Suresh Roy, the then, Joint Commissioner of Police, New Delhi range and Sh. K. K. Paul, the then, Joint Commissioner of Crime Branch who had made the said communications to Sh. P. K. Jalali, Joint Secretary, Ministry of Home Affairs, Govt. of India or to the office of Lieutenant Governor, Delhi on the day of incident itself. They also made request to summon Sh. L. K. Advani who had made a statement in the Lok Sabha on 25.07.2001 and 31.07.2001, Sh. P. K. Jalali, Joint Secretary, Ministry of Home Affairs, Govt. of India and to Secretary to Hon'ble Lieutenant Governor of Delhi to whom the said communications were addressed but the same were strongly opposed by the prosecution. The then Ld. Predecessor of this court also dismissed the said application finding it to be not necessary to summon the said witnesses. The said order was however challenged before Hon'ble High Court of Delhi by the accused persons. However in the proceedings before Hon'ble High Court of Delhi Ld. APP representing the State made a statement that since the documents which are sought to be proved by summoning various witnesses are undisputed documents so there was no requirement to summon the said witnesses.
State v. Sher Singh Rana & Ors. Page 126 of 217159. Hon'ble High Court accordingly in view of the aforesaid submissions of Ld. APP observed that as the documents in question are not in dispute so the witnesses sought to be summoned were not required. However request of the accused persons was allowed to the effect that necessary record from the office of PIO, Patiala House Courts be summoned. Thereafter when the PIO, Patiala House Courts where the said documents were allegedly received from the office of DCP, Crime in response to an RTI application was called then it was found that no such documents were available with him. In this regard Sh. Vijay Kumar who was PIO, Patiala House Courts was examined as a court witness and he stated that the RTI application moved by Ms. Reenala Jhalala, Advocate was received asking for copies of following communication:-
1. The attested copy of letter No. 1533/P.Sec./NDR dated 25.07.2001 sent by Sh. Suresh Roy, Joint Commissioner of Police to Sh. P.K. Jalali in case FIR No. 253/01, PS Parliament Street.
2. Attested copy of letter No. 1121/P.Sec./Joint CP/Crime dated 26.07.2001 sent by Sh. K.K. Paul, Joint Commissioner of Police to Sh. P.K. Jalali in case FIR No. 253/01, PS Parliament Street.
3. Attested copy of letter No. 1128/P.Sec./Joint CP/Crime dated 28.07.2001 sent by Sh. K.K. Paul, Joint Commissioner of Police to Sh. P.K. Jalali in case FIR No. 253/01, PS Parliament Street.
4. Attested copy of letter No. 1132/P.Sec./Joint CP/Crime dated 30.07.2001 sent by Sh. K.K. Paul, Joint Commissioner of Police to Sh. P.K. Jalali in case FIR No. 253/01, PS Parliament Street.
160. He further stated that the said documents were however not State v. Sher Singh Rana & Ors. Page 127 of 217 available in their record. In these circumstances this court directed summoning of one SI Shyam Sunder who was Incharge, RTI Cell, Crime Branch, Delhi Police to produce the record pertaining to the present case. He accordingly produced the record and wherein copies of the aforesaid communications were very much available and the same were placed on record as Ex. CW1/A to Ex. CW1/D. However the letters or communication vide which the said information was sought by the RTI Cell of Crime Branch, Delhi Police from the office of Sh. Suresh Roy and Sh. K. K. Paul, the two Joint Commissioners were not available on record.
161. After the aforesaid proceedings, final arguments at length were heard by this court for a period of about 1 ½ months and when Ld. Counsel for the accused persons and accused Sher Singh Rana himself again sought to place reliance on the aforesaid documents or on the record of the proceedings of Lok Sabha dated 25.07.2001 and 31.07.2001 then Ld. Special PP strongly opposed the placing of any reliance on the said documents stating that the same have not been proved as per Evidence Act and thus cannot be read into evidence.
162. It was at this stage that this court vide a detailed order dated 19.07.2014 thought it appropriate to summon u/s 311 Cr.PC, Sh. Suresh Roy, the then, Joint Commissioner of Police, Delhi range, as a court witness. Sh. Suresh Roy was thus examined as a Court witness on 04.08.14.
163. From the aforesaid circumstances a number of questions arises:-
State v. Sher Singh Rana & Ors. Page 128 of 217i. Firstly what was the reason for making such communication by the senior officers of Police to various higher authorities on that day or what was the reason Sh. L. K. Advani, the then, Home Minister, Govt. of India chose to make a statement in the Parliament initially on 25.07.2001 and subsequently on 31.07.2001.
ii. Secondly what was the basis of information on which Sh. Suresh Roy and Sh. K. K. Paul made the said communication.
iii. Thirdly what was the basis on which Sh. L. K. Advani made a statement on 25.07.2001 and 31.07.2001 in the Lok Sabha.
iv. Fourthly whether the true/certified copies obtained by the accused persons under RTI from Delhi Police and Lok Sabha Secretariat which carries following endorsement can be per se read into evidence.
The copies of documents containing discussion held in Lok Sabha on 25.07.2001 and 31.07.2001 have been certified by Sh. Harish Chander (Dy. Secretary, Lok Sabha) with the following endorsement:-
certified that this paper has been provided to Kuldeep Kumar sd-
Harish Chander Dy. Secretary Lok Sabha State v. Sher Singh Rana & Ors. Page 129 of 217 The copies of documents received from police (HQ) have been "Attested" by Assistant Commissioner of Police (HQ), New Delhi District, New Delhi.
v. Fifthly whether the contention of ld. Special PP that these documents cannot be read into evidence being not legally proved can hold ground especially in view of the changing stand of State before this court and before Hon'ble High Court of Delhi.
vi. Lastly whether the investigating agency or the prosecuting agency were not under a duty to place before this court the entire circumstances under which the said communications were made or in other words what could be the reasons for the investigating agency and the prosecuting agency to withhold the said documents from the trial court?
164. Keeping in view the overall facts and circumstances of the case and the evidence led by the prosecution and the accused persons the answer to the aforesaid questions in my considered view can be only as under:
i. As regard the necessity for making such communications by the senior officers of the police to different higher authorities or making of such a statement in the Lok Sabha by Sh. L. K. Advani, the same does not require any lengthly discussion as on the day of her death Smt. Phoolan Devi was a sitting member of Parliament and admittedly Parliament was in Session on that day. The fact that a sitting member of Parliament got murdered in the heart of Delhi State v. Sher Singh Rana & Ors. Page 130 of 217 shocked the conscience of entire Nation leading to outrage amongst the members of Parliament. Thus senior officers of police made immediate communication to the higher authorities informing about the circumstances in which the murder took place as is also evident from the statement made by Sh. L. K. Advani in the Lok Sabha on 25.07.2001. As per the record of the proceedings dated 25.07.2001 of Lok Sabha, Sh. Advani stated that he had a talk with Commissioner of Delhi Police who himself was present at RML hospital where Smt. Phoolan Devi and Ct. Balender were taken after the incident and he informed him that 3 masked assailants had carried out the attack.
ii. As regard the basis of the communication made by the senior officers of police the same could either be the information supplied to them by the investigating officers who reached the place of incident soon after the incident took place and made inquiries over there or in the alternative the personal information gathered by these senior police officers themselves by reaching at the spot and making inquiries over there. Infact Sh. Suresh Roy, the then Joint Commissioner of Police, Delhi Range when examined as a Court witness stated that on the day of incident i.e. on 25.07.01 upon receiving information about the incident he had gone initially to the place of incident i.e. 44, Ashoka Road and thereafter to RML hospital where the injured were taken. From the hospital he had gone to Pandit Pant Marg where Car No. CIM-907 was found lying abandoned. He further stated that he himself had seen place of incidence as well as the place where Car in question was found lying State v. Sher Singh Rana & Ors. Page 131 of 217 abandoned and thereafter he made oral communication initially to the then Commissioner of Police Sh. Ajay Raj Sharma on telephone and thereafter on the directions of Commissioner of Police made written communications to Sh. P.K. Jalali, Joint Secretary, Ministry of Home, Government of India and to Sh. G.C. Malhotra, Secretary General Lok Sabha beside issuing a Press Release. He further stated that as a large number of public persons had gathered around the Car as well as at 44 Ashoka Road and were saying that probably the assailants were masked so he too informed Commissioner of Police that probably the assailants were masked. He further stated that under this belief only he mentioned in the written communications as well as in the Press Release that the assailants were masked. However in response to certain questions put by the Court he further stated that before sending the said communications Ex. CW 5/A, CW 5/B and CW 5/C (Press release), he had no talks or discussion either with IO Insp. G.L. Mehta or Insp. Suresh Kaushik. He further stated that though he had received a copy of the FIR after its registration but only gave a cursory look to it as by that time the investigation of the case was already transferred to Crime Branch. He further stated that the copy of the said Press Release sent by him was also handed over to Crime Branch Officers on their request on 25.07.01 itself. He further stated that despite coming to know of the actual facts that the assailants were not masked on 25.07.01 itself he did not issue either any correction note in respect of the said communications earlier made by him or any fresh Press Release.
iii. As regard the basis on which Sh. L. K. Advani must have made the State v. Sher Singh Rana & Ors. Page 132 of 217 statement in the Lok Sabha on 25.07.01 as discussed above finds mention in the proceedings of the Lok Sabha itself. He said that he had personally talked to, the then, Commissioner of Police who was present at the hospital. Apart from this the other basis of information could be the communication sent by the senior officers of police as mentioned above on 25.07.2001 itself. However as regard the statement made by Sh. L. K. Advani on 31.07.2001 I may state that from a perusal of the said statement as has been recorded in the proceedings of Lok Sabha of that day it is clearly apparent that he reiterated the investigation which was carried out till that day in the present matter. It thus does not require any far-fetched argument to conclude that the said information could have been possible only when the investigating agency must have disclosed those facts to Sh. L. K. Advani either personally or through some other communication made to his office.
Question No. (iv) (v) and (vi) are being taken together being interconnected.
Now comes the most important aspect of admissibility of the said communication. The said issue in my considered opinion has to be considered under different provisions of Evidence Act.
Section 5 of the Evidence Act says that evidence may be given of all facts in issue and relevant facts. Section 6 thereafter talks of relevancy of facts forming part of same transaction.
Admittedly the said communications were made by the senior State v. Sher Singh Rana & Ors. Page 133 of 217 officers of police within few hours of incident on 25.07.2001 itself. In fact Sh. L. K. Advani made a statement in the Lok Sabha at 1500 hours i.e. within 1 ½ hour of the incident. Moreover he stated that he was informed about all such facts by the Commissioner of Police who was present at the hospital. Sh. Suresh Roy has also stated that after reaching the spot initially he went to hospital. From the hospital he came to Pandit Pant Marg where Car No. CIM-907 was found lying abandoned. Thus whether he briefed Commissioner of Police on the basis of his own observation of the spot and that of the car or on the basis of enquiries made by him from the persons gathered at the spot or from the investigating officers, the fact remains that his communication verbal or written are relevant and thus the accused persons were well within their rights to adduce evidence to this effect.
Moreover section 81 Evidence Act says that the court shall presume the genuineness of every document which purports to be a private act of Parliament or all other documents purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. Though one may argue that section 81 may not have straight application to the proceedings so produced by the accused persons after having been obtained under RTI but once again I may reiterate that while considering the reliance and admissibility of these documents the conduct of investigating agency and prosecuting agency has to be also kept in mind. The accused persons have been requesting right through the trial to summon the said witnesses who were the authors of said communication and to also produce the said documents. However State v. Sher Singh Rana & Ors. Page 134 of 217 as is evident from the proceedings mentioned above not only the investigating agency ensured that no such fact could come on record during the course of investigation or to even explain the circumstances in which the said communications were made but even the prosecuting agency continued to oppose the summoning of said witnesses or producing of the said documents. In fact the prosecuting agency continued to change its stand before different courts of law in this regard. While before Hon'ble High Court of Delhi it was stated by Ld. APP that the existence of these documents is not disputed but before the trial court it was argued that these documents cannot be read as they have not been proved in accordance with law. In these circumstances one cannot be oblivious of the situation of the accused persons. On the one hand their request to summon these witnesses was being opposed by the State and on the other hand State was not forth coming in its proceedings and was not ready to place on record all such communication and to explain under what circumstances the same were made. Despite specific queries by this court during the course of final arguments no plausible explanation in this regard came forth. Thus the prosecution cannot be allowed to blow both hot and cold at the same time i.e. to first withhold certain documents from the court as they were not favourable to its case or in other words were favourable to accused persons and on the other hand to argue that those documents when sought to be placed on record by the accused persons cannot be read into evidence being not proved as per law. It is for this reason that at the beginning of the judgment I stated that when either the prosecution chooses to withhold certain facts and circumstances which may not favour its case or which may be favourable to the accused State v. Sher Singh Rana & Ors. Page 135 of 217 persons or the defence come up with false plea of defence that the duty of the Court increases manifold in carefully scrutinizing the entire evidence at the threshold of rule of law.
In view of my aforesaid discussion I am thus of the considered opinion that since these communications were made by the senior officers of the police themselves so the investigating agency cannot wash away its hand without explaining anything about these communications. The said communications are important from another point of view also beside the fact that the assailants were stated to be masked. In both the communications made by Sh. Suresh Roy or the statements made by Sh. L. K. Advani there is no mention of recovery of two monkey caps from car no. CIM-907, even though all other articles viz. revolvers and cartridges so recovered finds mention. This fact also throw doubts as to the correctness of the investigation carried out in the present matter or whether the said monkey caps were subsequently planted in the car. Sh. Sureshy Roy simply stated that he forgot to mention about the monkey caps lying in the car. This explanation does not require any discussion to be brushed aside as the same is per se not believable and more so keeping in view the sensitive nature of matter it was and the senior level of the officer making the communication.
Since these documents were supplied to the accused persons in response to RTI application by the concerned departments from the record being maintained in the normal course of their business so the copies of the documents carrying stamps of the concerned officers can be safely treated as certified copies thereof and thus admissible in law. In fact State v. Sher Singh Rana & Ors. Page 136 of 217 the authenticity or the correctness of the copies otherwise has also not been disputed by the prosecuting agency at any point of time and Sh. Suresh Roy has also admitted having sent the said communications.
In view of my aforesaid discussion it is thus crystal clear that the claim of prosecution that the two assailants or the driver of Car No. CIM-907 were not wearing masks at the time of incident is not correct. Infact it is not only that there are doubts about the correctness of this claim of prosecution but from the overall circumstances it is clear beyond doubt that the two assailants and the driver of Car No. CIM-907 were wearing masks at the time of incident. Infact the deposition of PW-52 Kali Charan, PW-104 Munni Devi or PW-129 Vinod Vishwanath also supports the aforesaid conclusion. (I shall be discussing the deposition of these witnesses at a slightly later stage while discussing the case of prosecution qua accused Sher Singh Rana.) Against accused Dhan Parkash Prior acquaintance with Sher Singh Rana or other accused persons.
165. As regards the prior meeting with accused Sher Singh Rana to discuss the details of the conspiracy or his prior acquaintance with accused Sher Singh Rana, I have already discussed qua the deposition of PW-62 Pankaj Kalra that he did not support the case of the prosecution on this account and there is no other evidence led on record by the prosecution to prove the fact of any such prior meeting. Further more his prior acquaintance with accused Sher Singh Rana can also not amount to State v. Sher Singh Rana & Ors. Page 137 of 217 any incriminating circumstance.
166. As regard his travelling with accused Shekhar Singh and Rajbir Singh in white Maruti Car from Roorkee to Delhi on the morning of 25.07.01 and being in constant touch with accused Sher Singh Rana through mobile phone has also been already discussed by me while discussing the case qua accused Rajbir Singh. The said fact could not be proved by the prosecution as the call details being relied upon by the prosecution are clearly not admissible in evidence in the absence of Certificate u/s 65 B Indian Evidence Act, 1872.
167. PW-118 Naresh, the owner of Mohan Garage has also not supported the case of prosecution as he stated that he did not see any of the occupants of such a Car having come to his workshop to get it repaired on the morning of 25.07.01.
168. Apart from the aforesaid circumstances the prosecution has infact also failed to link the use of said white Maruti Car No. UP-14B-7559, with the present conspiracy. (The discussion in this regard made while considering the case of prosecution qua the case of accused Rajbir may be referred to).
Photo TIP by PW-73, Ct. Balender
169. As regard the fact that Ct. Balender had seen him when he fired towards him, the said claim of Ct. Balender is certainly not correct in view of the conclusion drawn by me earlier that the assailants were wearing mask at the time of incident. It was thus also not possible for Ct.
State v. Sher Singh Rana & Ors. Page 138 of 217Balender to identify the said assailant from his photograph subsequently if, at the time of incident the assailants had covered their face with mask.
Photo TIP by PW-114 Bahadur Shah.
170. With regard to identification of Dhan Parkash by Bahadur Shah the TSR driver, deposition of PW 114, Bahadur Shah is very important be be seen.
171. He stated that on that day after dropping a passenger at Connaught Place he was going towards Gole Dak Khana looking for some passenger and thereafter when he was moving on Pandit Pant Marg towards Central Secretariat then at about 1.30 PM one passenger signaled him to stop. He further stated that the said passenger told him that he intends to go to Nehru Place but when he was still talking to the said passenger then suddenly three boys came running from behind and boarded his TSR. He asked them as to where they have to go and as they were in a hurry so they simply asked him to just drive the TSR and they even patted on his neck by their hand and asked him to drive fast. He further stated that when he was driving towards Krishi Bhawan via Parliament House as told by the boys then at Krishi Bhawan one of them alighted as soon as his TSR slowed down due to traffic on the round about. From Krishi Bhawan he started moving towards Ashoka Road and from Ashoka Road he went towards India Gate and then towards Tilak Marg. However when he reached near red light Bhagwan Dass road then the other two boys also alighted from the TSR and boarded a bus without paying fare to him.
State v. Sher Singh Rana & Ors. Page 139 of 217172. In his deposition in the Court he though initially stated that when police subsequently showed him some photographs then he failed to identify any of them from the photographs but was thereafter cross- examined by Ld. Special PP at length. In his cross-examination he however turned around and stated that he had identified those boys from the photographs before the police and put his thumb impression upon the reverse of the said photographs.
173. From the aforesaid proceedings wherein he allegedly identified the said boys from the photographs, an important question which arises for consideration is whether this witness was at all in a position to have seen those boys properly at some point of time so as to later on identify them from their photographs.
174. A careful perusal of his deposition shows that there was no occasion for him to see the said three persons properly. He stated that when he was talking to a passenger then the said three persons boarded his TSR from behind and asked him to move fast. He further stated that they patted his neck with their hand asking him to move fast. Thus at that time Bahadur Shah must be sitting on the driver seat and must be looking towards front direction while the said three boys were sitting on the rear seat. At near Krishi Bhawan one of the said boys got down from the TSR while the TSR was still moving and thereafter at near Bhagwan Dass Road the two other boys also got down and boarded a bus without paying fare to him.
175. It is thus highly improbable that Bahadur Shah could have State v. Sher Singh Rana & Ors. Page 140 of 217 seen any of the said three boys properly who sat in his TSR from behind and got down on the way. Thus irrespective of the proceedings that took place subsequently at the police station regarding photo TIP wherein he was shown some photographs by the police to identify the said three boys who sat in his TSR, it is crystal clear that identification by him is not free from doubts and doubts which are beyond reasonable doubts.
176. At this stage I would also like to mention the proceedings in which the police claimed to have located the TSR driver Bahadur Shah on the morning of 26.07.01 itself. PW-168 SI Manoj Kumar who was told to locate TSR No. DL 1 RF 0235 on the morning of 26.07.2001 at 9 AM claimed to have traced the said TSR on 26.07.2001 itself from a TSR stand which happened to be just 1 ½ - 2 KM away from his office i.e. office of Crime Branch at R. K. Puram.
177. It will be worthwhile to reproduce the relevant portion of the deposition of this witness in this regard.
"On 25.07.2001 I came back from Jalandhar, Punjab to Delhi from the investigation of one case over there. On that day I reported to my office R.K. Puram at about 10 PM regarding coming back to Delhi from Jalandhar Punjab. I met to Sh. H.P.S. Cheema, ACP in the office of R.K. Puram and then he disclosed us that Smt. Smt. Phoolan Devi was murdered and the investigation was entrusted to Insp. Suresh Kaushik by him and I was directed to reach office next day early in the morning. So I left for my house from the office.
On 26.07.2001 I reached my office at about 9 AM and met Insp. Suresh Kaushik and he briefed me regarding the murder of Smt. Smt. Phoolan Devi. Insp. Suresh Kaushik also told me that he came to know from one Vinod Kumar State v. Sher Singh Rana & Ors. Page 141 of 217 that after committing the murder of Smt. Smt. Phoolan Devi the assailants had run away in one TSR of CNG bearing its registration No. DL-1RF-0235. I was directed by the Insp. Suresh Kaushik to search the owner and driver of the said TSR and produced them in the office before him. I search the owner of said TSR from Traffic control Room from where I came to know the owner name as Bhim Ghosh, R/o 485, Indira Colony, Vijay Ghat, New Delhi so I went there and the owner Bhim Ghosh met me at the said address. Bhim Ghosh told me that his TSR is of patrol not of CNG and he has already given the said TSR on rent to some one. I went to Burari transport authority because it has come to my knowledge that CNG scooter used to be registered there at Vijay Ghat itself so I went there. From the office of the Burari on making enquiry I came to know that the TSR of CNG registered as DL-1RF-0235 was registered there in the name of Rameshwar Sharma (PW28), R/o C-8/127A, Lawrance Road, New Delhi. Thereafter I went to the house of Rameshwar Sharma at Lawrance Road. Rameshwar met me there and he informed me that the said scooter was financed by him and the permit of said TSR is in the name of Ram Mahadev Yadav (PW 27), R/o Mandir Wali Gali, Shadi Pur, Kanpur, New Delhi. Rameshwar Sharma also told me that the said scooter was given by Ram Mahadev Yadav on rent to one Bahadur Shah (PW 114), r/o E-38, Dhapo Colony, R.K. Puram, Sector 2, New Delhi. Thereafter we went to Dhapo Colony, R.K. Puram, where Bahadur Shah met me near his juggi. Again said I came to know that he just has gone to TSR stand of sector 2 with his TSR so we went there. Thereafter Bahadur Shah alongwith his said TSR produced before Insp. Suresh Kaushik on the same day i.e. 26.07.2001 in our office of R.K. Puram, New Delhi."
178. In his cross-examination this witness however stated that to none of the persons from whom he collected information about the owner/driver of TSR in question including at the office of Transport Authority at Burari he served any notice seeking such information in writing. Apart from such perfunctory nature of investigation he stated that State v. Sher Singh Rana & Ors. Page 142 of 217 he left the office on the morning of 26.07.2001 within half an hour of reaching the office. Thus he must have left the office by 9:30 AM as he stated that on the morning of 26.07.2001 he reached the office at 9 AM. He further stated that before being able to locate Bahadur Shah at R. K. Puram TSR stand he travelled from R. K.Puram to Teen Murti, Traffic Office, Chanakyapuri and from there to Indira Colony which was about 15- 20 km away to meet one Bhim Ghosh. Therafter he went to Burari Transport Authority which was again about 10-15 km away and from there he went to Lawrance Road which took about 15 to 20 minutes on his bullet Motorcycle. From there after making enquiries from Rameshwar Sharma he went to meet Ram Mahadev Yadav whose house was situated about 20-22 km from Lawrance Road. Thereafter he went to the house of Bahadur Shah and then to the TSR stand where he found Bahadur Shah with his TSR no. DL-1RF-0235.
179. This claim of PW 168 Sh. Manoj Kumar when seen and analysed vis-a-vis the deposition of PW 114 Bahadur Shah clearly shows that either of the two is not a truthful witness.
180. PW 114 Bahadur Shah in his cross-examination stated that when he reached the TSR stand R. K. Puram on the morning of 26.07.2001 at about 9 or 10 AM then SI Manoj Kumar of sector 4, R. K. Puram came and met him.
181. Thus if the deposition of SI Manoj Kumar regarding the manner in which he discovered and met Bahadur Shah after making extensive enquiries from different persons is believed then he could not State v. Sher Singh Rana & Ors. Page 143 of 217 have reached Auto Stand R. K. Puram before 2-3 PM on 26.07.2001. He thus could not have met Bahadur Shah on the morning of 26.07.2001 at the TSR stand, R. K. Puram at about 9/10 AM. Alternatively PW 114 Bahadur Shah is not a truthful witness in this regard.
182. Infact Bahadur Shah was also not having any badge which is allotted to a TSR driver and the TSR in question also did not belong to him. There was thus nothing on record to show that he was actually a TSR driver much less that of TSR no. DL-1RF-0235 at the time when the three assailants allegedly boarded the said TSR.
183. Once again, the fact that Bahadur Shah, the driver of the TSR in which the assailants fled away soon after the incident happened to be residing near the office of Crime Branch at R. K. Puram only appears to be more then a co-incidence in the overall facts and circumstances of the case and in view of the apparent conflicting nature of their deposition as discussed above.
184. Thus in view of the aforesaid facts and circumstances not much reliance can be placed upon identification of accused Dhan Parkash or for that matter of any of the other accused persons by PW 114 Bahadur Shah.
Disclosure statement by accused Dhan Parkash
185. Clearly any disclosure statement made by an accused while being in the custody of police is inadmissible in evidence being hit by S. 25 Evidence Act unless any fact or thing is discovered pursuant to the said State v. Sher Singh Rana & Ors. Page 144 of 217 disclosure statement. Again this is not the prosecution case that anything was recovered or discovered pursuant to the disclosure statement of accused Dhan Parkash. The disclosure statement is accordingly inadmissible in evidence.
Chance finger prints recovered from revolver labelled "MADE IN INLEND".
186. Apart from the aforesaid circumstances the only piece of incriminating evidence which emerges out from the prosecution case against accused Dhan Parkash is his three finger print impressions upon one of the weapon of offence i.e. on one revolver out of the two recovered from the rear seat of car no. CIM-907.
187. Ordinarily such fact would have amounted to a clinching piece of evidence in favour of the prosecution to prove the guilt of the accused or to shift the burden upon the accused to explain under what circumstances his finger impressions came to be found on one of the two weapon of offence. Certainly accused Dhan Parkash ought to have explained u/s 106 Evidence Act about this aspect but in my considered opinion any failure on his part to explain the same cannot make this circumstance to be sufficient in itself to conclude that he was one of the two assailants who fired at Ct. Balender.
188. Apart from the doubtful nature of investigation as has been discussed by me at different stages of my present judgment qua various circumstances the testimony of PW 129 Vinod Vishwanathan gains material importance in this regard. This witness has been examined by the State v. Sher Singh Rana & Ors. Page 145 of 217 prosecution as a chance witness of the scene of occurrence. He allegedly chased the maruti car in which the three assailants fled away from the spot and had even seen them leaving their car at Pandit Pant Marg and boarding a TSR. He thereafter went and informed ASI Sri Krishan of Traffic Police and ASI Satish Joshi of PS Mandir Marg who were present near Gole Dak Khana about the incident and the assailants having left car no. CIM-907 at Pandit Pant Marg. He further stated that when the two police officials reached near the car then one of them upon checking the car and on seeing a revolver lying there, picked it up but on the asking of the other police official kept it back. ASI Sri Krishan however vehemently denied this fact in his deposition and rather stated that till the time FSL experts came no one picked up the said revolver lying on the seat. This fact again create doubts as regard the claim of prosecution that till the time FSL experts examined the revolvers no one had touched them. Moreover as earlier discussed the items which were recovered from the car as were mentioned in the written communications made by Sh. Suresh Roy did not contain any reference of two monkey caps which as per the charge-sheet were also lying alongwith the revolvers.
189. Undoubtedly, the mere non-mentioning of the two monkey caps cannot lead to a conclusion whereby to doubt even the recovery of two revolvers from the car but it does goes to show that the investigation as has been now presented in the charge sheet was in fact not carried out in the manner as is being projected to have been carried out.
190. In view of my aforesaid discussion the non-furnishing of any explanation by accused Dhan Parkash u/s 106 Evidence Act as to under State v. Sher Singh Rana & Ors. Page 146 of 217 what circumstances his chance prints came to be there on one of the two weapons of offence ceases to have any relevance. The solitary circumstance even if presumed to be proved by the prosecution for the sake of arguments cannot even otherwise form a chain of circumstantial evidence in itself in the absence of any other link to the said chain of circumstance to lead to the only hypothesis viz. that of guilt of accused Dhan Parkash. In other words the solitary circumstance viz. that finger prints of accused Dhan Parkash were found on one of the two weapons of offence cannot in itself prove the case of prosecution against him beyond shadows of all reasonable doubts when especially his very identification by the witnesses is shrouded with doubts and there is no other incriminating circumstance having been proved against him by the prosecution. (In these circumstances I am not entering into any analysis of the plea of defence of accused Dhan Parkash that after his arrest his finger print impressions were planted on the revolver.)
191. There is yet one other unexplained circumstance in the prosecution case. Admittedly at the asking of FSL experts Malviya Nagar, Car No. CIM-907 was driven by SI Sanjeev Mandal from the spot to the office of DCP New Delhi. However the investigation is silent as to whether the keys of the Car were in the Car itself or not or as to how SI Sanjeev Mandal drove the Car. There is no mention of seizure of any such keys of the Car. This fact also raises doubts about the veracity of the contents of the seizure memo prepared as regard the articles recovered from the Car.
In view of my aforesaid discussion, I am thus of the considered opinion that the prosecution has miserably failed in State v. Sher Singh Rana & Ors. Page 147 of 217 proving its case against accused Dhan Parkash also that he was part of any such conspiracy or that he was one of the two assailants who fired at Smt. Phoolan Devi or at Ct. Balender. It thus also does not stand proved that he was ever in possession of any arm or ammunition much less unlicensed arm. The charge of use of any such arm also thus does not hold ground.
Case of prosecution against accused Shekhar Acquaintance with Sher Singh Rana or other accused persons.
192. As already discussed qua the deposition of PW-62 Pankaj Kalra through whom prosecution sought to prove the factum of a meeting having taken place at the house of accused Sher Singh Rana, he turned hostile and did not support the case of the prosecution on this score. Accordingly this circumstance does not stand proved. Similarly acquaintance of accused Shekhar with accused Sher Singh Rana from prior to the incident even if presumed to be there does not amount to any incriminating circumstance.
193. As regard his travel from Roorkee to Delhi alongwith accused Dhan Parkash and Rajbir in white Maruti car no. UP-14B-7559 the same also does not stand proved. As already mentioned while discussing the case of prosecution qua accused Rajbir and Dhan Parkash the prosecution has clearly failed in establishing that accused Shekhar travelled in the said Maruti car to Delhi from Roorkee much less with accused Rajbir or Dhan Parkash.
State v. Sher Singh Rana & Ors. Page 148 of 217194. The factum of his being in touch with Sher Singh Rana through mobile phone available with Rajbir Singh also does not stand proved since the call records or cell ID chart has already been held to be inadmissible in evidence in the absence of certificate u/s 65-B Evidence Act.
195. PW-118 Naresh, the owner of "Mohan Motors" has also not supported the case of prosecution as he stated that he did not see any of the occupants of such a Car having come to his workshop to get it repaired on the morning of 25.07.01.
Identification of PW-73, Ct. Balender.
196. As regards the actual incident of firing on Smt. Phoolan Devi and Ct. Balender, I have already observed that the prosecution story that the three occupants of the Car no. CIM-907 were not wearing any mask at the time of incident is highly doubtful and rather it emerges from the overall facts and circumstances that they were in fact wearing mask. In these circumstances his identification by Ct. Balender seems to be highly doubtful and cannot be relied upon.
197. Infact the claim of Ct. Balender that he had seen accused Shekhar Singh standing outside Car No. CIM-907 when he alongwith Smt. Phoolan Devi returned from Parliament also appears to be highly doubtful.
198. Firstly no person who has come with such a sinister design will stand in this manner outside the Car so that public may see and identify him at a later stage. Secondly if the deposition of Ct. Balender is State v. Sher Singh Rana & Ors. Page 149 of 217 seen closely than his deposition in this regard clearly appears to be false.
199. As per the prosecution case Smt. Phoolan Devi and Ct. Balender were shot soon after they alighted from the Car of another Member of Parliament. He further stated that when they were in the process of entering inside their house after opening the main door then the shooting incident took place. Thus the entire incident must have taken only few minutes and thus it is highly improbable that accused Sher Singh Rana who was to drive Car no. CIM-907 so as to facilitate the escape of the other two co-accused persons will continue to stand outside the Car. Even if it is presumed for the sake of arguments that accused Shekhar Singh was initially standing outside the Car then also the likely conduct of such an accused cannot be overlooked in the overall facts and circumstances of the case. A person who has come with two other co-accused persons to carry out such a murderous attack will immediately get inside the Car as soon as their target i.e. Smt. Phoolan Devi arrives at the scene. Thus considering all these circumstances the deposition of Ct. Balender that he had seen accused Shekhar Singh standing outside the Car does not appears to be correct. Consequently identification of accused Shekhar Singh even from his photograph appears to be highly doubtful.
200. Moreover since the three occupants of the Car were wearing mask at the time of incident so the prosecution in my considered opinion has also clearly failed to prove the identity of accused Shekhar Singh as being one of the three occupants of Car No. CIM-907 at the time of incident.
State v. Sher Singh Rana & Ors. Page 150 of 217Identification by PW-114, Bahadur Shah.
201. Similarly as regards his identification by TSR driver Bahadur Shah, the same has also been already discussed by me in the discussion pertaining to accused Dhan Parkash that his deposition also does not inspire confidence and accordingly identification by him from photographs appears to be highly doubtful.
Abscondance of accused Shekhar Singh
202. The fact that accused Shekhar Singh was found to be absconding alongwith other co-accused persons namely, Sher Singh Rana, Rajbir Singh and Rajender has also been discussed by me earlier while discussing the similar issue qua the case of accused Rajender and Rajbir Singh and for the same reasons the mere fact of his absconding even if presumed to be true does not amount to any incriminating circumstance. Similarly his subsequent arrest by Saharanpur police and recovery of white Maruti Car at his instance or that of accused Rajbir and Rajender is also of no consequence as the prosecution has failed to prove that the said maruti car was in any manner used in the present conspiracy. (My earlier discussion in this regard made while discussing the case of prosecution qua accused Rajbir may be referred to) Disclosure statement by accused Shekhar Singh.
203. The alleged disclosure statement made by accused Shekhar is also clearly inadmissible in evidence being hit by section 25 Evidence Act, for neither any fact nor any thing was recovered in consequent State v. Sher Singh Rana & Ors. Page 151 of 217 thereto.
Procurement of mobile phone No. 9811374806 and 9811374810.
204. Once again there is no legally admissible evidence on record to prove that the said two phone numbers were procured by accused Shekhar Singh for being used in the present conspiracy much less the use of the said mobile phones having been proved in the present conspiracy. Thus it does not stand proved that Shekhar Singh procured the two mobile phone numbers i.e. 9811374806 and 9811374810 for being used in the present conspiracy.
Chance finger prints recovered from Car No. CIM-907.
205. Though the investigating agency claims to have lifted six chance finger print impressions from Car No. CIM-907. However report Ex. PW 148/16A of SI Avdesh Kumar, the finger print expert is silent as to whether the said six chance prints lifted from Car No. CIM-907 tallied with the specimen finger prints of any of the accused much less with that of accused Shekhar Singh.
206. Though Ld. Counsel for accused Shekhar Singh argued that the police has infact planted the finger impressions of accused Shekhar Singh subsequent to his arrest and in view of the nature of investigation which is shrouded with doubts no reliance be placed on this circumstance.
207. I may however state that even if it is presumed for the sake of arguments that the finger prints of accused Shekhar were found on Car no.
State v. Sher Singh Rana & Ors. Page 152 of 217CIM-907 then also in the absence of any other incriminating circumstance, the same can not form such a chain of circumstance which could conclusively link accused Shekhar Singh with the offence in question and especially in view of perfunctory nature of investigation carried out with respect to Car No. CIM-907 as has been discussed at length while discussing the case of prosecution qua accused Dhan Parkash.
208. Thus in view of my aforesaid discussion, I am of the considered opinion that the prosecution has miserably failed to prove any other incriminating circumstance against accused Shekhar Singh so as to form a chain of circumstance which could lead to a hypothesis only consistent with the guilt of accused.
The prosecution has thus clearly failed in proving that accused Shekhar Singh was in any manner involved in the conspiracy in question or that he was the driver of Car No. CIM-907 at the time of incident when the two assailants fled in the said Car from the spot.
Case against accused Sharwan Kumar
209. The charges framed against accused Sharwan Kumar are however two fold viz. That of perjury and falsification of documents of Courts at Haridwar and that of Haridwar Jail by putting his thumb impression and signatures impersonating himself as Sher Singh Rana and in the process cheating the court as well as jail authorities at Haridwar by way of impersonation. The charges have also been framed against him that he was a part of the criminal conspiracy hatched by accused Sher State v. Sher Singh Rana & Ors. Page 153 of 217 Singh Rana to commit the murder of Smt. Phoolan Devi.
210. However an important aspect of the matter which in my considered opinion has not been proved by the prosecution against accused Sharwan is his knowledge of any such conspiracy or objective sought to be achieved by any such conspiracy much less he being a part of any such criminal conspiracy.
Prior acquaintance with Sher Singh Rana.
211. As regard the fact that accused Sharwan Kumar was working at the liquor vend of accused Sher Singh Rana the same is sought to be proved by the prosecution from the deposition of PW-62 Pankaj Kalra and PW-130 Om Pal who was running a hardware shop near the liquor vend of accused Sher Singh Rana. However while PW-62 Pankaj Kalra as already discussed claimed ignorance in this regard but even PW-130 Om Pal also failed to identify accused Sharwan as one of the person working at the said liquor vend. However PW-41 A.K. Sharma, Dy. Excise Commissioner Dehradun and PW-99 Sanjay Kumar, Excise Inspector Roorkee produced record pertaining to allottment of said liquour vend to PW-62 Pankaj Kalra and also as to who all were working there. Thus even if it is presumed that accused Sharwan Kumar was working at the said liquour vend than also this aspect of prior acquaintance can not amount to an incriminating circumstance in itself.
212. As regards accused Sharvan Kumar being a part of the conspiracy in question, the prosecution has sought to prove it by stating that he participated in a meeting held at the house of Sher Singh Rana State v. Sher Singh Rana & Ors. Page 154 of 217 prior to the incident where the details of the conspiracy were discussed. However as earlier also mentioned PW-62 Pankaj Kalra did not support the case of prosecution as regard any such meeting having held at the house of accused Sher Singh Rana. Thus the question of accused Sharvan Kumar having participated in any such meeting does not stand proved.
213. In these circumstances I may once again state that the mere prior acquaintance of accused Sharwan Kumar with accused Sher Singh Rana even if it is presumed to be existing for the sake of arguments does not amount to any incriminating circumstance.
Impersonation by Sharwan Kumar.
214. The important question which however arises is if accused Sharwan Kumar was not a part to the conspiracy in question so hatched by accused Sher Singh Rana then why he chose to go inside the jail impersonating himself as Sher Singh Rana on 18.07.2001 and came out of the jail on 26.07.2001 only. No doubt this fact stands proved from the deposition of the Ahlmad of the court of Ld. ACJM and also by way of deposition of PW 83 SI Hoshiar Singh and PW-85 Ganga Ram Prajapati. The report of handwriting expert and finger print expert who compared the court record and jail record with the handwriting and finger prints of accused Sharwan and Sher Singh Rana also lend support to this conclusion. Nothing material could be even elicited in the cross- examination of any of the aforesaid witnesses which could belie their claim. Thus it stands proved by cogent convincing and reliable evidence State v. Sher Singh Rana & Ors. Page 155 of 217 that accused Sharwan indeed went inside the jail in an Excise Act case which was already pending in the Court at Haridwar against accused Sher Singh Rana by impersonating himself as Sher Singh Rana.
215. However in order to better appreciate the case of prosecution qua accused Sharwan Kumar, the plea of defence taken by accused Sher Singh Rana in this regard needs to be seen. He has stated that his father Surender Singh Rana wanted to dispose of the property whose documents were furnished by him in the said Excise case in the year 1996 as documents of surety while getting him initially released on bail. He even examined DW-3 Sh. Hazi Mehboob a property dealer from Roorkee in this regard who stated that Surinder Singh Rana once approached him in order to sell one of his properties but after seeing the documents of the property in question he told Surinder Singh Rana that as the documents of the property were carrying an endorsement from the court so no sale transaction can be carried out unless the said endorsement is got cancelled. He further stated that later on he met accused Sher Singh Rana and his mother and they both told him that they do not intend to sell the said property. However he further stated that after some time Surender Singh Rana produced the said papers of the property with the endorsement in question cancelled and accordingly he got the said property sold out.
216. Certainly the witness of defence is entitled to same weight as that of prosecution witnesses but still without placing much reliance upon State v. Sher Singh Rana & Ors. Page 156 of 217 the aforesaid plea of defence it will be worthwhile to mention and as earlier also discussed that one of the initial sureties of accused Sher Singh Rana in the year 1996 when the case was initially registered was his father Surender Singh Rana. Admittedly as per the deposition of PW 138 Ramesh Chand Aggarwal, the Advocate to whom, Surender Singh Rana approached for getting his surety withdrawn, that Surender Singh Rana being a surety was under a duty to produce the accused while seeking his withdrawal. He further stated that at that time one person was produced as Sher Singh Rana by Surinder Singh Rana. It is thus clear that the person so produced by Surinder Singh Rana as his son Sher Singh Rana must be none else but accused Sharwan Kumar.
217. Thus it is crystal clear that if accused Sharwan was made to go to jail impersonating as Sher Singh Rana in furtherance of the present criminal conspiracy then his production in the court by Surender Singh Rana must also be in furtherance of the said criminal conspiracy being hatched by accused Sher Singh Rana. Thus if both Surinder Singh Rana and Sharwan Kumar were part of the said conspiracy or even aware of the objective sought to be achieved by the said conspiracy than as earlier also discussed the role of investigating agency has not been free from doubts when it was stated in the charge-sheet that Surinder Singh Rana was not charge-sheeted for want of sufficient evidence. Certainly the investigating agency is not forth coming as to what other nature of evidence they were looking for before charge sheeting Surender Singh Rana as one of the co- conspirator. This fact is explainable only in one circumstance that either accused Sher Singh Rana was not aware that accused Sharwan is being produced in the court impersonating as Sher Singh Rana by his father or State v. Sher Singh Rana & Ors. Page 157 of 217 Sharwan was not aware that he was being produced in pursuance to any such conspiracy. Once again in the overall facts and circumstances it does not stand cogently proved that Sharwan was either aware of any such criminal conspiracy being hatched by accused Sher Singh Rana or was even aware of the objective which was sought to be achieved by virtue of the said criminal conspiracy much less he was a part of the said criminal conspiracy.
218. In the aforesaid circumstances the offence of cheating by impersonation or that of perjury or of falsification of documents of the court record or the jail records which stood committed either before the courts at Haridwar or in the District jail, Haridwar having been not committed in pursuance to the criminal conspiracy in question over here cannot be tried by the courts at Delhi. Even otherwise in the absence of the mandatory complaint u/s 195 Cr.P.C. from the concerned court or the jail authorities the very cognizance of the offence of perjury by this Court was bad in law. I am not entering into a detailed discussion as regards the evidence led by prosecution qua the said offences, lest it may prejudice either the State or accused at a later stage if accused Sharwan Kumar is prosecuted before the courts at Haridwar.
219. As a mark of caution I may also mention that I am not drawing any conclusion against prosecution or in favour of accused Sharwan Kumar simply because Surinder Singh Rana has not been arrested in the present case. This fact is being mentioned only to highlight and draw the conclusion that Sharwan Kumar did not go inside the jail in pursuance to the present conspiracy. In other words it can be safely concluded that the State v. Sher Singh Rana & Ors. Page 158 of 217 circumstances which have been placed and proved on record by the prosecution against accused Sharwan Kumar are not consistent or explainable only on one single hypothesis of guilt of accused or in other words are not inconsistent with the innocence of accused qua the criminal conspiracy in question over here.
220. In view of my aforesaid discussion the prosecution has thus clearly failed to prove its case against accused Sharwan that either he was a part of the criminal conspiracy so hatched by accused Sher Singh Rana or that he was even aware of the objective sought to be achieved by the said criminal conspiracy.
The prosecution has thus failed to prove its case against accused Sharwan Kumar.
Against accused Sher Singh Rana
221. Accused Sher Singh Rana has been projected as the main conspirator who over a period of few years prior to the murder of Smt. Phoolan Devi was in the process of hatching the impugned conspiracy and it was primarily him who had roped in all the other co-accused persons. I shall be now discussing the evidence led by the prosecution vis-a-vis the circumstances as earlier mentioned vide which the prosecution seeks to prove its case against him.
Motive
222. The prime motive on account of which accused Sher Singh State v. Sher Singh Rana & Ors. Page 159 of 217 Rana allegedly hatched the present conspiracy is stated to be the fact that he belonged to "Thakur" community and was enraged with Smt. Phoolan Devi on account of the brutal masscare of about 22 Thakurs in the famous "Behmai killings". He not only wanted to avenge the said killing of Thakurs by Smt. Phoolan Devi but being an ambitious person right from his school days also wanted to earn money and fame by some short cut method. He thus wanted to become leader of the Thakur Community and thereby intended to enter politics by killing Smt. Phoolan Devi.
223. As regard the fact that Smt. Phoolan Devi killed about 22 Thakurs in the "Behmai killing", the correctness or veracity of the said incident or the reasons which prompted Smt. Phoolan Devi to kill so many Thakurs need not be gone into over here except that it was in public knowledge that Smt. Phoolan Devi shot to fame after she undertook the said killings of Thakurs at "Bhemai, UP".
224. As regard the fact that accused Sher Singh Rana was an ambitious person the prosecution has sought to prove the said fact from the deposition of PW-3 Kovid Batra, PW-22 Javed Khan, PW-30 Raja Kumar and PW-62 Pankaj Kalra. They all used to study with Sher Singh Rana either in school or in college. PW-3 Kovid Batra stated that Sher Singh Rana was not only elected as a head-boy in the school but also contested election of General Secretary of the student union in the college though he lost over there. It was also stated by these witnesses that during those days Sher Singh Rana spent few lacs on his election campaign and was the first to get coloured posters printed in the college students union election. Though Sher Singh Rana has denied spending State v. Sher Singh Rana & Ors. Page 160 of 217 such a huge amount in his election campaign or even getting coloured posters printed but has admitted that he was elected as a head boy of the school and that he also contested election of the student union in the college. Ld. Special PP also tried to put certain suggestions to the witnesses that Sher Singh Rana was an ambitious person and wanted to establish himself in politics but the witnesses did not admit that Sher Singh Rana wanted to enter politics. PW-140 Advocate Rajesh Rastogi also denied a suggestion put to him by Ld. Special PP in this regard.
225. However in my considered view mere contesting of elections in the school or college union or a person stating that he intends to join politics can not amount to an incriminating circumstance. Every person has a right to choose his career and everyone intends to do well in his life may be by joining some good government service or a service in private sector or by even joining politics. These arguments in my considered opinion are too far-fetched to conclude that because of this ambitious nature he committed murder of Smt. Phoolan Devi. Similarly to state that accused Sher Singh Rana being a Thakur wanted to avenge the killing of Thakurs by Smt. Phoolan Devi or thereby wanted to establish himself as a leader of the Thakur Community and in the process earning name, fame and money by a short cut method will be a conclusion purely based on conjectures and surmises which is not permitted under the law.
226. Infact all these facts which came to the knowledge of police only through the alleged disclosure statement of accused Sher Singh Rana himself primarily seems to have given birth to such fallacious conclusion in the mind of investigating agency that the entire motive to kill Smt. Phoolan State v. Sher Singh Rana & Ors. Page 161 of 217 Devi was found to be centering around this ambitious nature of accused Sher Singh Rana. I thus do not intend to go into any further length of the matter on this aspect as the aforesaid motive attributed to accused Sher Singh Rana is not only very vague in nature but also does not inspire much confidence.
227. However the failure of the prosecution in proving the motive on the part of accused Sher Singh Rana to commit murder of Smt. Phoolan Devi does not mean that the entire prosecution case qua him needs to be thrown over board. Undoubtedly in a criminal case which by and large is based on circumstancial nature of evidence motive plays an important part. Certainly the prosecution is under an obligation to prove the motive which prompted the accused to resort to such a heinous act. However at the same time the failure to prove motive which by and large remains in the mind of the accused only and evidence qua which is difficult to obtain does not mean that all other circumstances sought to be proved by the prosecution also stands discredited. At times even the victim of the crime may not be aware as to why he has been attacked.
228. Thus while the prosecution in my considered opinion has failed to prove the motive on the part of Sher Singh Rana to commit murder of Smt. Phoolan Devi but the absence of motive does not affect the prosecution case in any manner. At this stage it will be worthwhile to note certain observations made by Hon'ble Supreme Court in this regard.
State v. Sher Singh Rana & Ors. Page 162 of 217229. In the decision reported as State of UP v Babu Ram (2000) 4 SCC 515 it was held:-
"We are unable to concur with the legal proposition enumerated in the impugned judgment that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No about, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law."
274. It is also relevant to note the following observations of Supreme Court in the decision reported as Ujjagar Singh v State of Punjab (2007) 14 SCALE 428:-
"It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the clichi) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy"State v. Sher Singh Rana & Ors. Page 163 of 217
PREPARATION Bank Robbery Cases or allotment of liquour vend.
230. As regard the fact that accused Sher Singh Rana in order to arrange finances to carry out the present conspiracy committed two robberies in the year 2000 & 2001 at Roorkee and Haridwar, the prosecution sought to prove these facts by way of deposition of PW-53 HC V.K. Tyagi who produced the record pertaining to the case registered vide case crime No. 77/2000, u/s 394/302 IPC, PS Kotwali, Dehradun and PW- 98 HC Vishal Mani who produced the record pertaining to case FIR No. 09/01, u/s 394/397 IPC at Roorkee.
231. However it also came in the evidence of the said witnesses itself that though in both the said cases name of accused Sher Singh Rana cropped up but either he was discharged or acquitted in the said cases.
232. Accused Sher Singh Rana on the other hand claimed in his statement u/s 313 Cr.PC that he was falsely implicated in the said cases at the instance of Delhi police. It is also a matter of record that initially the said cases were registered against unknown persons and it was on the basis of disclosure statement of accused Sher Singh Rana only after his involvement in the present case that he was arrested in the said two cases. However later on he was admittedly discharged or acquitted in the said two cases.
233. It thus goes without saying that sufficient evidence connecting him with the offence in question could not be found by the State v. Sher Singh Rana & Ors. Page 164 of 217 concerned Courts where the said cases were being tried. In these circumstances drawing of any presumption on the basis of aforesaid facts against accused Sher Singh Rana that he indulged in the said two bank robberies in order to create finances to carry out the execution of the present criminal conspiracy falls flat on the ground. The claim of prosecution that accused Sher Singh Rana had a criminal back ground thus also gets hit. (Certainly he was facing a trial in an Excise Act case at Haridwar).
234. It is further the case of prosecution that from out of the proceeds of said two bank robberies accused Sher Singh Rana got allotted a liquour vend at Haridwar in the name of PW 62, Pankaj Kalra so that more finances could be generated. Once again in view of the aforesaid circumstances when involvement of accused Sher Singh Rana in the said two bank robbery cases could not be proved so the present conclusion that he invested the said looted amount in getting the liquour vend allotted also does not stand proved. It is however entirely a different matter that accused Sher Singh Rana has not denied that a liquour vend was being run by him and his father Surinder Singh Rana which was allotted in the name of PW 62 Pankaj Kalra. He however stated that the said liquour vend was though allotted in the name of Pankaj Kalra but the finances for the same were provided by him.
235. PW 62 Pankaj Kalra has also stated that the finance to get the liquour vend allotted was indeed provided by accused Sher Singh Rana even though the liquor vend came to be allotted in his name only.
State v. Sher Singh Rana & Ors. Page 165 of 217236. It will be thus again a fallacious conclusion based on conjectures and surmises only to conclude that the liquour vend was being run by accused Sher Singh Rana in order to generate finances to carry out the present controversy.
These circumstances thus does not stand proved.
Procurement of weapon of offence from accused Parveen Mittal or accused Amit Rathi.
237. As already discussed PW-62 Pankaj Kalra has disowned the prosecution story that in his presence any revolver "MADE IN INLEND"
was given by accused Parveen Mittal to accused Sher Singh Rana. Thus prosecution is left only with the disclosure statement of accused Sher Singh Rana and Parveen Mittal to prove this fact and as earlier also mentioned the said disclosure statements are clearly inadmissible in evidence being hit by section 25 Evidence Act.
238. Similar is the position with respect to the claim of prosecution that accused Sher Singh Rana obtained yet another revolver made "WEBLEY & SCOTT" from accused Amit Rathi. Not only such a conclusion is again a result of the disclosure statements of the two accused persons which are clearly inadmissible in law.
239. The other witness examined by the prosecution in this regard was PW-70 Afaq Ahmed who was shown by the investigating agency as a worker at the shop of accused Amit Rathi who repaired the revolver in question. However as earlier also mentioned PW 70 Afaq Ahmed did not State v. Sher Singh Rana & Ors. Page 166 of 217 support the case of the prosecution in this regard. He even denied that he knew accused Amit Rathi or ever worked at his shop. He was not only declared hositle by Ld. Special PP but was also cross examined at length. In his cross-examination also he denied even knowing accused Amit Rathi or as to what work used to be done at his shop. He also denied knowing accused Sher Singh Rana. He further denied having been ever given any revolver by accused Amit Rathi or accused Sher Singh Rana for repair. Infact in the cross-examination by Ld. Special P.P. a suggestion was put to the witness that he alongwith accused Amit Rathi was involved in the illegal sale of unlicensed revolvers and was also engaged in the sale and repair of illegal weapon and was thus deposing falsely. This suggestion once again brings to the fore the conduct of the investigating agency as to if PW 70 Afaq Ahmed was also involved in the sale and purchase of illegal weapons or he repaired the said revolvers. (As per the case qua accused Parveen Mittal the grooves of the revolvers were to be tampered with) then under what circumstances PW 70 Afaq Ahmad was let off by the investigating agency. Even if he was to be made a witness by the Investigating Agency then whether he first turned an approver and permission of the Court in this regard was sought.
240. Thus once again the investigating agency has sought to play both hot and cold as per their whims and fancies while arraying some persons as co-conspirators on the basis of similar kind of evidence and at the same time letting off some persons and making them witnesses without their first turning approvers.
241. Be that as it may, the fact remains that prosecution has failed State v. Sher Singh Rana & Ors. Page 167 of 217 to prove this circumstance also against accused Sher Singh Rana regarding procurement of two revolvers (weapons of offence) from accused Parveen Mittal or Amit Rathi.
Stay of Sher Singh at "Amantaran Guest House" Chittranjan Park.
242. Prosecution has also claimed that earlier also accused Sher Singh Rana carried out a survey of the house of Smt. Phoolan Devi when she was residing at Chittranjan Park and stayed at one "Amantran Guest House" near to her house. It has been further stated that at that time Sher Singh Rana did not carry out the murder of Smt. Phoolan Devi as he did not find the time or place to be suitable. However this conclusion as regard this act or intention of Sher Singh Rana once again seems to have borne out of the disclosure statement of Sher Singh Rana only and is thus inadmissible in law.
243. PW-1 Nirmal Chandra, owner of "Amantran Gest House" has deposed about stay of Sher Singh Rana in his guest house. In his cross- examination accused Sher Singh Rana though disputed the said claim and also the veracity or the correctness of the record produced by him but once again in my considered opinion even if it is presumed that accused Sher Singh Rana came and stayed at "Amantran Guest House" at Chittranjan Park from 27.07.00 till 29.07.00 than also it can not amount to an incriminating circumstance. Drawing of any further conclusion that while sitting over there he carried out a survey of the house of Smt. Phoolan Devi in order to commit her murder is not borne out from any legally admissible evidence. Once again the prosecution seeks to draw this State v. Sher Singh Rana & Ors. Page 168 of 217 conclusion only from the disclosure statement of accused Sher Singh Rana which is inadmissible in law. The deposition of PW-30 Raja Kumar who even flip-flopped in his deposition is also of no help to the prosecution in this regard.
This circumstance thus does not stand proved.
Meeting at the House of Sher Singh Rana.
244. As regard the alleged meeting held at his house by accused Sher Singh Rana where other co-conspirators were present and the plan as to in what manner the conspiracy is to be executed or what role is to be played by each of the conspirator was discussed, the same as already discussed qua other accused persons does not stand proved.
245. Prosecution sought to prove this fact by the deposition of PW 62, Pankaj Kalra but he has chosen not to support the prosecution case on this score. The discussion earlier held by me qua deposition of PW-62 Pankaj Kalra need not be reiterated over here as prosecution has miserably failed in proving that any such meeting ever took place at the house of accused Sher Singh Rana.
This circumstance also thus does not stand proved.
Procurement of country made pistols from mustkeem.
246. As earlier discussed the role of the investigating agency qua involvement of mustkeem is also not free from doubts. If he had supplied two country made pistols to accused Sher Singh Rana then what was the State v. Sher Singh Rana & Ors. Page 169 of 217 reason that his case was considered on a different footing from that of accused Parveen Mittal and Amit Rahti. The fact however remains that this claim of prosecution is also borne out only from the disclosure statement of accused Sher Singh Rana which is inadmissible in law being hit by S. 25 Evidence Act. The charge-sheet though says that accused mustkeem who was found lodged in Mujaffar Nagar Jail was interrogated in this regard but thereafter the charge-sheet is silent as to what facts came to light in the interrogation of mustkeem.
This circumstance thus does not stand proved.
Use of Mobile Phones.
247. As regard the procuring of two mobile phone numbers 9811374806 and 9811374810 by accused Shekhar, the same as has already been discussed does not stand proved by any legally admissible evidence. As regard mobile phone No. 9837237160, PW-94 Anurag Tyagi has though stated it was sold by him to Sher Singh Rana but there is no documentary evidence to support his said claim. He infact stated that he purchased the said phone from "Grey market" (Gaffar Market, Karol Bagh), Delhi and thus there was no documentary proof qua it. Moreover as earlier also mentioned that there is no legally admissible evidence on record to conclude the fact that any of the aforesaid SIM card numbers were used in the present conspiracy. Similar is the position with respect to mobile phone No. 9837222779 stated to have been borrowed from PW-3 Kovid Batra.
248. The use of the aforesaid mobile phones in the present conspiracy which was sought to be proved by virtue of the call detail record State v. Sher Singh Rana & Ors. Page 170 of 217 or the cell ID chart as already discussed by me was found to be inadmissible in law in the absence of certificate u/s 65-B Indian Evidence Act, 1872. Thus procurement of the mobile phone or SIM cards by accused Sher Singh Rana or accused Shekhar Singh ceases to have any relevance.
249. Drawing of any conclusion to the contrary by the prosecution will be again on the basis of conjectures and surmises not based on any legally admissible evidence.
The prosecution has thus failed to prove this circumstance.
Abscondance of PW-62, Pankaj Kalra at the asking of Sher Singh Rana.
250. As regard the fact that Pankaj Kalra was also told by accused Sher Singh Rana to flee away after the incident has also been discussed by me earlier and it remains unexplained as to if Pankaj Kalra was not a part of the conspiracy then why he was asked to flee away after the incident. It is however a different matter that PW-62 Pankaj Kalra has also not supported the case of prosecution even on this score and stated that he has not fled away after the alleged incident. Infact the prosecution as already mentioned has been even not successful in proving that PW 62 Pankaj Kalra was in any manner even aware of the impugned conspiracy or the object sought to be achieved by the conspiracy or even that he had indeed run away after the incident.
The prosecution has thus failed to prove this circumstance.
State v. Sher Singh Rana & Ors. Page 171 of 217Abscondance of Vijay Singh Rana and other family members of Sher Singh Rana.
251. This issue has also been already discussed by me earlier while discussing the case of prosecution qua accused Vijay Singh Rana. Even if it be presumed that after the murder of Smt. Phoolan Devi, the family members of accused Sher Singh Rana fled away from their house, then also nothing adverse can be read against accused Sher Singh Rana from this circumstance. Though this fact has been denied by both accused Sher Singh Rana and his brother Vijay Singh Rana and they even examined DW-4 Lalit Singh, Sub Divisional Engineer, BSNL, Roorkee, to show that calls were being made and received at the telephone numbers 01332-71805 and 77120 installed at their residence during the period 27.07.01 till 30.07.01. However irrespective of the said fact, I may again reiterate that firstly there was no reason for the parents of accused Sher Singh Rana to flee away but even the claim of the prosecution in this regard has been falsified by PW-62 Pankaj Kalra who was also shown to have gone alongwith family members of accused Sher Singh Rana. Thus merely on account of this fact of alleged abscondance by the family members of Sher Singh Rana, which fact though has not been proved by any cogent or convincing evidence but even if presumed to have been proved then also no adverse inference against accused Sher Singh Rana can be drawn by virtue of it.
252. Infact the deposition of PW-61 Davender Kumar Mittal the owner of Hotel "Dwapar" Mussoorie is also of no help to the prosecution in this regard.
State v. Sher Singh Rana & Ors. Page 172 of 217Use of Car no. UP-14B-7559
253. As earlier mentioned in the discussion pertaining to accused Rajbir, the very use of Car No. UP 14B 7559 in the present conspiracy could not be proved by the prosecution. It also could not be proved that the three accused persons namely Rajbir Singh, Shekhar Singh and Dhan Parkash travelled in the said Maruti Car from Roorkee to Delhi or that later on after the incident accused Rajbir Singh, Shekhar Singh and accused Sher Singh Rana moved in the said white Maruti Car from Ghaziabad onwards. Accordingly the fact that the said Car was recovered from Saharanpur at the instance of accused Rajbir Singh, Rajender and Shekher Singh is of no relevance at all.
Whether assailants were masked.
254. However the most important and crucial piece of evidence sought to be proved by the prosecution is that it was accused Sher Singh Rana @ Pankaj who fired at Smt. Phoolan Devi. As already mentioned while discussing the theory of assailants being masked at the time of incident the claim of prosecution to the contrary was clearly found to be wrong (In order to avoid repetition, I am not reiterating the said discussion over here). It is thus difficult to conclude on the basis of identification by Ct. Balender that accused Sher Singh Rana was one of the two assailants who shot at them. Infact as per the prosecution case itself accused Sher Singh Rana was well known to PW 52 Kali Charan, the complainant on whose statement the present case came to be registered. The statement of State v. Sher Singh Rana & Ors. Page 173 of 217 complainant Kali Charan was admittedly recorded within 1 ½ to 2 hours of the incident. A perusal of his said statement shows that he merely gave the physical description of the two assailants i.e. regarding the built or nature of hair beside stating the description of the clothes which the two assailants were wearing at that time. He however did not mention that one of them was accused Sher Singh Rana @ Pankaj. Though towards the end of his complaint he state that Pankaj is missing since the time of incident. Even in his deposition in the Court this witness initially in his examination-in-chief stated that accused Sher Singh Rana was one of the said two assailants who had fired at Smt. Phoolan Devi but in his re- examination at a later date after accused Sher Singh Rana was again arrested (During the course of trial accused Sher Singh Rana absconded away for a period of about 2 years) he turned around and stated that the assailants were infact masked. Upon being cross-examined by Ld. Special PP he stated that earlier due to fear of police he had not stated the true facts but now since PW-104 Munni Devi the sister of Smt. Phoolan Devi has also spoken the truth so he is also stating the true and correct facts. Certainly one may argue relying upon a number of case law and the famous case "Khujji @ Surendera Tiwari Vs. State of Madhya Pradesh", AIR 1991, SC 1848, that the testimony of a hostile witness can also be relied upon and the same can be the basis of conviction but as already discussed and concluded that assailants at the time of incident were masked so the deposition of this witness only raises doubts as regards the veracity of the prosecution case only. Moreover if accused Sher Singh Rana was admittedly well known to this witness then what prevented him from stating in his initial complaint to the police itself that State v. Sher Singh Rana & Ors. Page 174 of 217 one of the two assailants was Sher Singh Rana. His statement was recorded within 2 hours of the incident and thus it cannot be presumed that he made any embellishment in his statement. This fact again raises doubts that PW-52 Kali Charan or PW-73 Ct. Balender or for that matter any other eye witness of the incident has identified accused Sher Singh Rana at the spot itself firing towards Smt. Phoolan Devi.
Thus in my considered opinion the prosecution has failed to prove this circumstance also.
255. At this stage, I intend to also briefly refer to one other issue which when raised by the prosecution was very feebly protested by the accused. Prosecution has claimed that accused Sher Singh Rana was also known by the name Pankaj @ Sheru. Accused has however disputed the said claim stating that he was not known by the name Pankaj.
256. However various prosecution witnesses have flip-flopped on this issue either in their examination-in-chief or their cross-examination but in my considered opinion any analysis of their deposition qua this issue is not required, for the issue being raised is immaterial in the overall facts and circumstances of the case. Not only all the witnesses have claimed that the assailants ran away from the spot in the Car in which PW-17 Uma Kashyap and PW-18 Vijay Kashyap had come in the morning being driven by accused Sher Singh Rana. As I shall be discussing at a later stage that this fact not only stands proved from the evidence led by the prosecution but even accused Sher Singh Rana has not disputed the said fact. Thus the case of prosecution is primarily that Smt. Phoolan Devi and Ct.
State v. Sher Singh Rana & Ors. Page 175 of 217Balender were fired at by accused Sher Singh Rana who had come in the morning in his Car No. CIM-907 alongwith Uma Kashyap and Vijay Kashyap. Thus it is immaterial that the person who had come driving Car No. CIM-907 with Uma Kashyap and Vijay Kashyap was also known by the name Pankaj or not beside being called as Sher Singh Rana.
Identification by PW-114 Bahadur Shah and PW-73 Ct. Balender
257. As has already been discussed while discussing the deposition of PW-114 Bahadur Shah in the case against accused Shekhar Singh and Dhan Parkash that identification by him of the said passengers is clearly doubtful and cannot be relied upon. Similarly identification of Sher Singh Rana by Ct. Balender at the time of incident even though he was known to him from prior to also does not stand proved. It is not the case of prosecution that Ct. Balender identified accused Sher Singh Rana from his over all appearance or the clothes which he was wearing since morning. He identified him from his photograph only and which identification appears to be doubtful as I have already concluded that the assailants at the time of incident were wearing mask.
258. In these circumstances the identification of accused Sher Singh Rana either by Ct. Balender or by TSR Driver Bahadur Shah remains doubtful. Infact PW-129, Vinod Vishwanath also stated that while boarding the TSR he had seen the three boys throwing off their masks but he infact failed to identify them later on in the Court.
The prosecution has thus failed in proving this circumstance also.
State v. Sher Singh Rana & Ors. Page 176 of 217Recovery of Video Cassette of film "Bandit Queen" and diary from the house of Sher Singh Rana
259. The mere recovery of video cassette of film "Bandit Queen"
from the house of accused Sher Singh Rana after his arrest or a diary containing phone numbers of Amit Rathi and Parveen Mittal can not amount to any incriminating circumstance as has already been discussed while discussing the case of prosecution qua accused Amit Rathi and Parveen Mittal. The same at the most can show some prior acquaintance between them but can not simplicitor indicate anything that they were conspirators in the present conspiracy.
Refusal to participate in TIP.
260. As regards the refusal of accused Sher Singh Rana to participate in TIP the same as earlier also discussed qua other accused persons namely Shekhar Singh and Dhan Parkash can not be of any consequence. Infact even the alleged Press Conference so addressed by accused Sher Singh Rana was attended by photographers from Media and his photograph was thus very much available in the media. Moreover accused Sher Singh Rana was not arrayed for TIP soon after his arrest by Delhi police officers and rather his police custody remand was initially sought for 10 days and thereafter he was arrayed for TIP on 07.08.01. Thus no adverse inference in my considered opinion can be drawn on account of refusal to participate in TIP by accused Sher Singh Rana.
State v. Sher Singh Rana & Ors. Page 177 of 217Visit to the house of Smt. Phoolan Devi on 25.07.01.
261. The case of prosecution in this regard is that accused Sher Singh Rana developed intimacy with Uma Kashyap and her husband Vijay Kashyap in order to gain access to the house of Smt. Phoolan Devi. This fact stands proved from the deposition of PW-17 Uma Kashyap and her husband PW-18 Vijay Kashyap or even from the deposition of various other witnesses namely PW 52 Kali Charan, PW-73 Ct. Balender, PW 104, Munni etc who all also stated that Sher Singh Rana used to visit the house of Smt. Phoolan Devi alongwith PW -17 Uma Kashyap and PW-18 Vijay Kashyap.
262. Infact accused Sher Singh Rana himself has also not disputed that he knew Uma Kashyap and alongwith her used to visit the house of Smt. Phoolan Devi. He however stated that Uma Kashyap used to ask him to go alongwith her to Delhi in his Car to the house of Smt. Phoolan Devi. However in my considered opinion the aforesaid facts taken either way does not make any difference. Infact on the day of incident also accused Sher Singh Rana has not disputed his visit alongwith Uma Kashyap and Vijay Kashyap to the house of Smt. Phoolan Devi. He infact has also claimed his presence over there even at the time of incident even though prosecution has claimed his presence at that time as one of the assailant. He further stated that on 24.07.01 both Uma Kashyap and her husband Vijay Kashyap forced him repeatedly to come to Delhi alongwith them on the next day and that he himself did not ask them to come to Delhi alongwith him. Once again these facts are of no consequence since the visit by accused Sher Singh Rana to Delhi on the day of incident or his State v. Sher Singh Rana & Ors. Page 178 of 217 presence at the house of Smt. Phoolan Devi since morning stands well proved not only from the deposition of various witnesses including PW 52 Kali Charan, PW-104 Munni Devi and PW-73 Ct. Balender but he himself has also not disputed the said fact either in the cross-examination of these witnesses or in his statement u/s 313 Cr.PC.
263. However, I shall be discussing at a later stage that this proved/admitted presence of accused Sher Singh Rana on the day of incident at the house of Smt. Phoolan Devi not only give birth to certain unanswered questions/circumstances but may also lead to drawing of certain conclusions about his conduct soon after the incident.
Use of Car No. CIM-907 by the assailants.
264. However before adverting further on this aspect it will be worthwhile to first examine as to whether the ownership of Car No. CIM- 907 in the name of Sher Singh Rana has been proved by the prosecution or not.
265. In this regard deposition of PW-93, Mansur Alam in relevant. He stated that he sold the said Car No. CIM-907 to Sher Singh Rana. His deposition to this effect has also not been controverted by accused Sher Singh Rana. Infact Sher Singh Rana himself admitted in his statement u/s 313 Cr.PC that earlier he had lodged a complaint with the police regarding missing of his Car No. CIM-907 but later on he found that it was taken away by Vijay Kashyap. He even admitted in his statement u/s 313 Cr.PC that he purchased the said Car No. CIM-907 from PW-93 Mansur Alam.
State v. Sher Singh Rana & Ors. Page 179 of 217266. Moreover PW-52, Kali Charan, PW-73 Ct. Balender besides PW-17 Uma Kashyap and PW-18 Vijay Kashyap have all stated that on 25.07.01 accused Sher Singh Rana came with Uma Kashyap and Vijay Kashyap in Car No. CIM-907 to the house of Smt. Phoolan Devi. Accused Sher Singh Rana himself has also not disputed the said facts. He even admitted the claim of prosecution witnesses that on that day as the Car of Smt. Phoolan Devi was not available so he had dropped her and Ct. Balender in his Car No. CIM-907 to Parliament House.
267. Thus from all these circumstances it stands conclusively proved that Car No. CIM-907 belonged to accused Sher Singh Rana.
268. The next important circumstance which now arises for consideration is whether the assailants fled away from the spot in Car NO. CIM-907.
269. The fact that the assailants soon after the incident fled away from the spot in green colour Maruti Car No. CIM-907 belonging to Sher Singh Rana stands well proved from the deposition of PW-17, Uma Kashap, PW-52 Kali Charan, PW-104, Munni Devi, PW-73 Ct. Balender and PW-129 Vinod Vishwanath who was a chance witness of the incident. Infact I was unable to find anything in the cross-examination of any of the prosecution witnesses that accused Sher Singh Rana disputed this claim of the prosecution. Infact his sole thrust has been to state that he was not one of the assailant and secondly that he was present at the spot even after the incident. It thus clearly stands proved that after firing at Smt. Phoolan Devi and Ct. Balender, the assailants fled away in the green State v. Sher Singh Rana & Ors. Page 180 of 217 colour Maruti Car No. CIM-907 belonging to accused Sher Singh Rana. This fact also stands proved from the testimony of IO (PW-170) ACP Suresh Kaushik or other police officers and CFSL experts who inspected Car No. CIM-907 at the spot itself and found bullet marks on the rear glass. The fact that a bullet fired by Ct. Balender from his service revolver hit the rear glass of Car No. CIM-907 also stands proved from the report of CFSL experts. This fact also lends support to the conclusion that the three assailants fled away from the spot in Car No. CIM-907.
270. The report of CFSL experts to this effect has also not been disputed by accused Sher Singh Rana. Infact while relying upon the communication made by Sh. Suresh Roy (Court Witness-5) the then Joint Commissioner of Police, New Delhi it was only claimed right through the entire trial that the revolvers, cartridges or monkey caps have been planted in Car No. CIM-907 but the fact that Car No. CIM-907 was found lying abandoned at Pandit Pant Marg within few minutes of the incident and that too with bullets marks on the rear glass has not been disputed.
271. Moreover from the deposition of PW-129, Vinod Vishwanath it also stands clearly proved that the assailants after leaving Car No. CIM- 907 at Pandit Pant Marg boarded TSR No. DL-1RF-0235.
272. Thus from all the aforesaid circumstances and the deposition of the witnesses it stands clearly proved that the assailants soon after the incident fled away from the spot in Car No. CIM-907.
273. The aforesaid facts and circumstances thus clearly shifts the burden upon accused Sher Singh Rana u/s 106 Evidence Act to State v. Sher Singh Rana & Ors. Page 181 of 217 explain as to in what circumstances his Car No. CIM-907 came to be used by the assailants in fleeing away from the spot after the incident if he himself was not one of the assailant.
274. Sher Singh Rana has however claimed that he was not involved in firing incident which took place at the house of Smt. Phoolan Devi. Infact he claimed that at the time of incident he was present in the house, as was also claimed by PW-52 Kali Charan. He further stated that in fact all the persons who were present in the house at the time of incident were rounded up by the police and later on after illegally dentaining him for 2 days he was shown to have been arrested from Dehradun showing that he had addressed a Press conference at "Doon Press Club" admitting his involvement in the present case and was thereafter arrested by police of PS Dallanwala, Dehradun.
275. Thus what is now required to be seen is as to whether the aforesaid explanation furnished by accused Sher Singh Rana regarding his presence at the spot at the time of incident or soon thereafter is plausible and is sufficient to discharge his burden of so proving u/s 106 Evidence Act.
276. The use of car No. CIM-907 belonging to Sher Singh Rana by the assailants or his absence from the house at the time of incident are in fact the most important incriminating piece of evidence which tends to connect accused Sher Singh Rana with the offence in question. Admittedly accused Sher Singh Rana was present since morning at the house of Smt. Phoolan Devi on the day of incident. Though PW-52 Kali State v. Sher Singh Rana & Ors. Page 182 of 217 Charan stated that accused Sher Singh Rana had also gone to RML hospital in the same Maruti Van in which Smt. Phoolan Devi and Ct. Balender were removed but this fact was not put by accused Sher Singh Rana in the cross examination of any of the other eye witnesses of the incident. It was also not suggested to any witness that all the persons present in the house at the time of incident were rounded up by the police soon after the incident. As already discussed the deposition of PW 52 Kali Charan can not be given much credence to this effect and especially when accused Sher Singh Rana himself has not claimed this aspect of the matter. Infact in his statement u/s 313 Cr.PC in response to Q. No. 219 he stated that within one hour of the incident he alongwith all other persons present in the house were taken to the police station by the police. It is his further case that later on he was detained illegally by Delhi Police but was shown to have been arrested from Dehradun.
277. This claim of accused Sher Singh Rana is however clearly false for a number of reasons.
278. Firstly if accused Sher Singh Rana was found to be the actual culprit then there was no reason for the police to not claim that the actual culprit has been apprehended soon after the incident and the police would not have faced such a flak from the higher authorities that the law and order situation in Delhi is bad as a sitting member of Parliament has been murdered in the heart of national capital.
279. Secondly the fact that accused Sher Singh Rana was found to be staying in hotel "Pramila" at Haridwar impersonating as Anoop Singh State v. Sher Singh Rana & Ors. Page 183 of 217 further supports that on 25th and 26th July 2001 he was not in the custody of police. Moreover there was no reason for Delhi Police if they had already detained accused Sher Singh Rana to take him to Dehradun and to make him address a Press Conference as claimed by Sher Singh Rana. If they were to arrange and manipulate any such Press Conference then they could have done it at Delhi or at Roorkee to which place accused Sher Singh Rana belonged to.
280. Infact in the cross-examination of PW-146, Insp. Parikshit Kumar, the then SHO, PS Dallanwala, Dehradun who arrested accused Sher Singh Rana from outside "Doon Press Club" it was suggested on behalf of accused Sher Singh Rana that from 12 Noon to 2 P.M. accused Sher Singh Rana was in the custody of Delhi police. Insp. Parikshit Kumar though stated the said suggestion to be wrong but this suggestion goes to falsify the claim of accused Sher Singh Rana that he was in illegal detention of Delhi Police right from 25.07.01itself. The aforesaid claim of accused Sher Singh Rana also stands falsified from the depostion of PW- 116 Deepak Purohit and PW-124 Babu Ram Dubey, the two managers of hotel "Pramila" at Haridwar and hotel "Ganga View" at Rishikesh Road, Haridwar where accused Sher Singh Rana had stayed on the night of 25.07.01 and 26.07.01 respectively. In hotel "Pramila" Haridwar, accused Sher Singh Rana signed the register as "Anoop Singh" and this fact stands duly proved from the deposition of hand writing expert PW-134, Ms. Deepa Verma. A perusal of the cross-examination of this witness by Sher Singh Rana clearly shows that except for putting certain suggestions that the report has been prepared by her in connivance with the investigating officer of the case nothing material could be elicited which could either State v. Sher Singh Rana & Ors. Page 184 of 217 show that her report was wrong in any manner or that she was deposing falsely on any aspect. Infact in his statement u/s 313 Cr.PC in response to Q. No. 354 and Q. 355 Sher Singh Rana stated that the police forced him to sign various papers including registers of some hotels while he was in their custody. Thus he primarily did not dispute the factum of his signatures on the registers but simply stated that he was forced to do so. In order to appreciate this contention of accused Sher Singh Rana the deposition of PW-116 Deepak Purohit or that of PW-124 Babu Ram Dubey will be worthwhile to note. These two witnesses clearly identified accused Sher Singh Rana not only as the person who had come alongwith police and pointed out their hotel stating that he had stayed over there but they also stated that Sher Singh Rana was infact one of the persons who had stayed at their hotel on 25.07.01 and 26.07.01 respectively. Infact a perusal of their cross-examination shows that bald suggestions were only put to these witnesses on behalf of Sher Singh Rana that either they were not employees of the respective hotels or that the registers produced by them did not belong to the said hotels. The witnesses however denied the said claim and stated the suggestions to be wrong. Apart from it I have been unable to find anything substantial in the cross-examination of any of these two witnesses which could either favour the accused or may lead me to disbelieve their deposition.
281. Once again this fact clearly falsifies the claim of accused Sher Singh Rana that on 25.07.01 he was illegally detained by the police and was later on shown to have been arrested from Dehradun on 27.07.01. It is in these circumstances the abscondance of accused Sher Singh Rana from the house of Smt. Phoolan Devi right from the time when State v. Sher Singh Rana & Ors. Page 185 of 217 the firing incident took place and thereafter staying in hotels by impersonating himself as Anoop Singh operates as a strong incriminating circumstance against him.
282. Thus accused Sher Singh Rana has clearly failed in explaining his presence either at the time of incident or soon thereafter by any explanation much less any plausible explanation. Infact his claim that he was illegally detained by Delhi police officials on 25.07.01 itself is also found to be false.
283. It is in these circumstances the non-explanation by accused Sher Singh Rana of the circumstances in which his Car No. CIM-907 came to be used by the assailants becomes important. Though during the course of arguments he has argued that the said Car was probably used by Uma Kashyap and Vijay Kashyap in connivance with Umed Singh husband of Phoolan Devi as they were probably having some duplicate keys but I have been unable to find that any such suggestion was even put to either of the aforesaid three witnesses in their cross-examination. Even in his statement u/s 313 Cr.PC in response to question No. 441 he stated that he has several things to say in defence and that he shall be filing detailed written submissions after consulting his Counsel but except for submitting some bullet points in writing merely showing the names of number of material prosecution witnesses examined, no such written submissions were filed on his behalf. Thus this claim of Sher Singh Rana that his Car was used by Uma Kashyap or her husband Vijay Kashyap in connivance with Umed Singh clearly appears to be an after thought.
State v. Sher Singh Rana & Ors. Page 186 of 217284. Thus once again furnishing of no explanation in this regard by accused Sher Singh Rana as to under what circumstances his Car No. CIM-907 came to be used by the assailants leads to only one conclusion that it was accused Sher Singh Rana only who was either one of the two assailants who fired at Smt. Phoolan Devi and Ct. Balender or was driving Car No. CIM-907 in which the two shooters fled away from the spot after the incident.
285. It has been strongly argued by Ld. Counsel for the accused persons and rightly so that the investigation carried out in the present case has not been above board and many circumstances were not brought forward since they were not favouring the case of the prosecution or in other words were favouring the case of the accused persons.
286. Undoubtedly I have also observed at a number of places in my present judgment that there were number of such instances where certain important facts were not brought on the file by the investigating agency for reasons best known to them. However the question which arises is whether on account of such defective or perfunctory investigation should the entire prosecution case be thrown over board. Whether such defective investigation will have the effect of even brushing aside the various important incriminating circumstances which have come on record against accused Sher Singh Rana and which circumstances he has failed to repel by any explanation much less any plausible explanation in that regard.
287. In this regard it will be worthwhile to mention certain State v. Sher Singh Rana & Ors. Page 187 of 217 observations made by Hon'ble Delhi High Court in the case "Vishal Yadav v. State of U.P." (Supra) wherein the Hon'ble Court in similar circumstances summarised the observations of Hon'ble Supreme Court made in a number of such like cases to hold that mere defects in the investigation by itself can not be a ground for acquittal as the conclusion of the Court can not be allowed to depend solely on the probity of the investigation. The discussion made in the said judgment by Hon'ble High Court from para No. 1882 onward reads as under:
"1882. It has been urged by Mr. P.K. Dey, learned counsel for the complainant that so far as the accused are concerned the investigation was fair, not tainted.
The above omissions are important from the perspective of the prosecution. It is urged that the lapses in the investigation by themselves would not result in vitiating the trial as the rest of the evidence must be scrutinized independently. Learned counsel has urged that criminal justice cannot be a casualty on account of lapses committed by the investigating officer.
1883. This issue arose before the Supreme Court in 2000 SCC (Crl.) 61 State of Karnataka v. K. Yarappa Reddy where the court was called upon to consider the question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the State v. Sher Singh Rana & Ors. Page 188 of 217 prosecution. In para 19 of the pronouncement, the court held thus:-
"―19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre- eminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongscommitted by the investigating officers in the case. In other words, if the court is State v. Sher Singh Rana & Ors. Page 189 of 217 convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."
(Emphasis by us) 1884. On the same issue, our attention has been drawn to the pronouncement of the Supreme Court reported at (2010) 5 SCC 91, Abu Jhakir v. State of Tamil Nadu. Placing reliance on para 19 of K. Yarappareddy (supra), the Supreme Court rejected the arguments on behalf of the appellant that the investigation was not fair as there were many missing links in the process of investigation.
1885. The appellants have strongly assailed the failure of the investigating agency to send the hammer for opinion of the doctor who conducted the post-mortem. Based on this objection, it has been pressed before us that the very recovery of the hammer must be disbelieved. A similar objection arose for consideration before the Supreme Court also in (2004) 10 SCC 598 Ram Bali v. State of U.P. (Paras 12-14). We may usefully extract the relevant portion of the judgment, which reads thus:
"―12. The investigation was also stated to be defective since the gun was not sent for forensic State v. Sher Singh Rana & Ors. Page 190 of 217 test. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] )
13. In Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined dehors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand in the way of evaluating the evidence by the courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, State v. Sher Singh Rana & Ors. Page 191 of 217 and in the process to the community at large.
14. As was observed in Ram Bihari Yadav v.
State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085] if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v.Balwinder Singh [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] .
As noted in Amar Singh case [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version."
(Emphasis by us)
1886. Where reliable and cogent statements,
State v. Sher Singh Rana & Ors. Page 192 of 217
consistent with the story of prosecution, are on record, merely because the police officers have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not enure to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. (Ref.:
(2010) 9 SCC 567 C. Muniappan v. State of Tamil Nadu).
1887. Before this court, the appellants have contended that the investigating officer failed to make sketch of the hammer which was recovered. The investigating officer also failed to send the hammer for opinion of the doctor who conducted the port-mortem.
The appellants have also challenged the testimony of witnesses of last seen together, on the ground that no TIP of the appellants was conducted.
1888. In Shyamal Ghosh (supra), these very objections were raised. In para 40, the Supreme Court observed that every discrepancy in investigation does not weigh with the court to the extent that it necessarily results in acquittal of the accused. The Supreme Court noted that the discrepancies pointed out in the case were lapses of immaterial consequence. The failure to prepare a site plan or to send gunny bags in which the body was State v. Sher Singh Rana & Ors. Page 193 of 217 recovered to the FSL was held not to be fatal to the case of the prosecution in the circumstances of the case. The Supreme Court adverted to judicial precedents observing as follows:-
"―40. In C. Muniappan v. State of T.N. [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] this Court has clearly stated the principle that the law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded.‖Similar view was taken by this Court in Sheo Shankar Singh v. State of Jharkhand [(2011) 3 SCC 654 : (2011) 2 SCC (Cri) 25] wherein the Court held that the failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the weight attached to such an identification is a matter which the court [would] determine in the peculiar facts and circumstances of each case.‖Similarly, failure to make State v. Sher Singh Rana & Ors. Page 194 of 217 reference to the FSL in the circumstances of the case is no more than a deficiency in the investigation of the case and such deficiency does not necessarily lead to a conclusion that the prosecution case is totally unworthy of credit."
(Emphasis by us) 1889. In (2012) 8 SCC 263, Dayal Singh and Ors. v.
State of Uttaranchal, the Supreme Court dealt with the question of defective or improper investigation resulting from the acts of omission and/or commission, deliberate or otherwise, of the Investigating Officer or other material witnesses, who are obliged to perform certain duties in discharge of their functions and then to examine its effects. In para 19, the Supreme Court articulated the following issues, which arose in such eventuality:-
"―19. Now, we will deal with the question of defective or improper investigation resulting from the acts of omission and/or commission, deliberate or otherwise, of the investigating officer or other material witnesses, who are obliged to perform certain duties in discharge of their functions and then to examine its effects. In order to examine this aspect in conformity with State v. Sher Singh Rana & Ors. Page 195 of 217 the rule of law and keeping in mind the basic principles of criminal jurisprudence, and the questions framed by us at the very outset of this judgment, the following points need consideration:
(i) Whether there have been acts of omission and commission which have resulted in improper or defective investigation.
(ii) Whether such default and/or acts of omission and commission have adversely affected the case of the prosecution.
(iii) Whether such default and acts were deliberate, unintentional or resulted from unavoidable circumstances of a given case.
(iv) If the dereliction of duty and omission to perform was deliberate, then is it obligatory upon the court to pass appropriate directions including directions in regard to taking of penal or other civil action against such officer/witness."
1890. The Supreme Court observed that in finding an answer to these questions, the Courts would have to examine the prosecution evidence in its entirety, especially when a specific reference to defective or irresponsible investigation is noticed in the light of the State v. Sher Singh Rana & Ors. Page 196 of 217 facts and circumstances of a given case. On the role of the investigating officer, in para 21 of Dayal Singh and Ors. v. State of Uttaranchal (supra), the court observed as follows:-
"―21. ...An Investigating Officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Where the default and omission is so flagrant that it speaks volumes of a deliberate act or such irresponsible attitude of investigation, no court can afford to overlook it, whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite such default/omission, the prosecution may still prove its case beyond reasonable doubt and the court can so return its finding. But, at the same time, the default and omission would have a reasonable chance of defeating the case of the prosecution in some events and the guilty could go scot-free. ..."
1891. Irresponsible investigation may smack of intentional mischief to misdirect the investigation as well as to withhold material evidence from the Court. It cannot be considered either as a case of bona fide or unintentional omission or commission. Such conduct is not a case of faulty investigation simplicitor State v. Sher Singh Rana & Ors. Page 197 of 217 but the case of is an investigation coloured with motivation or an attempt to ensure that the suspect can go scot-free. On this aspect, in para 26 of Dayal Singh and Ors. v. State of Uttaranchal (supra), the Supreme Court has ruled thus:-
"―26. ...Dereliction of duty or carelessness is an abuse of discretion under a definite law and misconduct is a violation of indefinite law.
Misconduct is a forbidden act whereas dereliction of duty is the forbidden quality of an act and is necessarily indefinite. One is a transgression of some established and definite rule of action, with least element of discretion, while the other is primarily an abuse of discretion. This Court in the case of State of Punjab and Ors. v. Ram Singh Ex. Constable [(1992) 4 SCC 54] stated that the ambit of these expressions had to be construed with reference to the subject matter and the context where the term occurs, regard being given to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires maintenance of strict discipline. The consequences of these defaults should normally be attributable to negligence. Police officers and doctors, by their profession, are State v. Sher Singh Rana & Ors. Page 198 of 217 required to maintain duty decorum of high standards. The standards of investigation and the prestige of the profession are dependent upon the action of such specialized persons. The police manual and even the provisions of the Cr.P.C. require the investigation to be conducted in a particular manner and method which, in our opinion, stands clearly violated in the present case. Dr. C.N. Tewari, not only breached the requirement of adherence to professional standards but also became instrumental in preparing a document which, ex facie, was incorrect and stood falsified by the unimpeachable evidence of eye witnesses placed by the prosecution on record. Also, in the same case, the Court, while referring to the decision in Ram Bihari Yadav and Others v. State of Bihar and Ors. [(1995) 6 SCC 31] noticed that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcement agency but also in the administration of justice."
"―34. ... Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or State v. Sher Singh Rana & Ors. Page 199 of 217 designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not sub-served. For truly attaining this object of a „fair trial‟, the Court should leave no stone unturned to do justice and protect the interest of the society as well."
(Emphasis by us) 1892. There are several pronouncements of the Supreme Court laying down the duty of the court in cases involving faulty investigations which must be referred to. In (1972) 3 SCC 613 Sathi Prasad v. The State of U.P., the Supreme Court held that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored.
1893. In (2004) 3 SCC 654 Dhanaj Singh @ Shera and Ors. v. State of Punjab, the Supreme Court noticed the possibility of the investigation being designedly defective and held thus:
"―In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the State v. Sher Singh Rana & Ors. Page 200 of 217 defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
1894. The Supreme Court enunciated the principles with regard to the case of omission and commission on the part of the investigating agency in AIR 1999 SC 644 Paras Yadav v. State of Bihar holding that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined, de hors such omissions, by the court to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
1895. The Supreme Court has thus categorically ruled that there is no absolute proposition that defective investigation would necessarily lead to acquittal of the accused person. Reiterating the principles laid down in (1995) 5 SCC 518 Karnel Singh v. State of M.P. and latter pronouncement in (2004) 10 SCC 598 Ram Bali v. State of Uttar Pradesh, the Supreme Court observed that ―in case of defective investigation the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an State v. Sher Singh Rana & Ors. Page 201 of 217 accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective‖.
1896. In Dayal Singh and Ors. v. State of Uttaranchal (supra), the Supreme Court in para 30, observed as follows:-
"―30. With the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.""
288. Thus, an objective evaluation of the evidence placed before the Court in every case so as to ensure a fair trial, has to be effected and a conclusion arrived at with regard to the guilt of the person charged, which may not necessarily be affected by defective investigation.
289. Apart from the aforesaid important incriminating circumstances there is also on record the extra judicial confessions made by accused Sher Singh Rana initially in the Press Conference held by him on 27.07.01 at "Doon Press Club" and subsequently after his arrest at PS Dallanwala to PW-87 Kishore Arora and PW-88 Ashish Goyal the State v. Sher Singh Rana & Ors. Page 202 of 217 cameraman and reporter of "Asian News International" (ANI). In his said Press Conference prior to his arrest by the police he admitted before the reporters and cameramen of different news agencies that he alognwith Rajender @ Ravinder committed murder of Smt. Phoolan Devi and the murderous attack on Ct. Balender. No doubt a part of his said claim was found to be false later on as Rajender was found to be lodged in jail at the time of incident but his statement certainly amounts to an extra judicial confession and thus can not be brushed aside especially in view of the other incriminating circumstances which stands proved against him on record. Similar is the position with respect to his second statement made to reporters while in the custody of police of PS Dallanwala. The law as regards extra judicial confession is well settled. In a catena of decisions Hon'ble Apex Court has observed that there is neither any rule of law nor of prudence that evidence furnished by extra judicial confession can not be relied upon unless corroborated by some other credible evidence. If the evidence about extra judicial confession comes from the mouth of such witnesses who are found to be unbiased and reliable then there is no reason as to why such an extra judicial confession can not be relied upon. (Reference in this regard may be had on "Abdul Ghani Vs. State of U.P". AIR 1973, SC 264 and "State of U.P. Vs. M.K. Anthony", AIR 1985, SC, 48).
290. In this regard the deposition of PW-87 Kishore Arora, PW-88 Ashish Goyal and that of PW-89 Rajesh Sharma are important to note.
291. Both PW-87 Kishore Arora and PW-88 Ashish goyal the cameraman and reporter from "Asia News International" (ANI) stated that State v. Sher Singh Rana & Ors. Page 203 of 217 they interviewed accused Sher Singh Rana while he was in the custody of police of PS Dallanwala at PS Dallanwala itself but they further stated that at that time beside them no one else was present in the room. They specifically denied the presence of police officials in the room. Certainly these independent witnesses from such a reputed news agency can not be attributed any oblique motive in deposing falsely against accused Sher Singh Rana. Certainly they were also not in a position of any authority qua accused Sher Singh Rana and thus the said confession made to them by Sher Singh Rana even though while being in police custody is not inadmissible in law and rather amount to an extra judicial confession. This certainly act as an additional incriminating circumstance which stands proved against accused Sher Singh Rana.
292. The deposition of PW-89 Rajesh Sharma, staff reporter of "Doon Valley Mail" stands on a much better footing. He stated that he interviewed Sher Singh Rana in the "Doon Press Club" before he was arrested by the police. He further stated that reporters from a number of newspapers were interviewing Sher Singh Rana at that time. To him also Sher Singh Rana admitted that he has killed Smt. Phoolan Devi.
293. Once again I have been unable to find any circumstance which could have prompted these independent witnesses i.e. reporters and cameraman from various news agencies to depose falsely against accused Sher Singh Rana. Nothing material could even come out in their cross-examination which could show that these witnesses were deposing falsely in any manner. I thus find these witnesses to be reliable and their deposition to be cogent and convincing.
State v. Sher Singh Rana & Ors. Page 204 of 217294. In the aforesaid facts and circumstances, I am of the considered opinion that the two extra judicial confessions made by accused Sher Singh Rana initially at the Press Conference held at "Doon Press Club" and subsequently at PS Dallanwala are strong corroborative piece of evidence lending support to the other incriminating circumstances which already stands proved against him.
295. At this stage it will be worthwhile to note down certain decision of Hon'ble Apex Court regarding applicability of Section 106 Evidence Act especially in cases based on circumstantial evidence or as regard the effect of taking false plea by an accused.
296. In the case Rakesh Kumar and Ors. v. State (Supra) Hon'ble Delhi High Court took note of some such decisions of Hon'ble Supreme Court as under.
(Though the said decisions are in respect of last seen evidence but the observations of Hon'ble Supreme Court are still relevant over here).
"337. In Joseph S/o Kooveli Poulo v. State of Kerala 2000 CriLJ 2467 (SC); the facts were that the deceased was an employee of a school. The appellant representing himself to be the husband of one of the sisters of Gracy, the deceased, went to the St. Mary's Convent where she was employed and on a false pretext that her mother was ill and had been admitted to a hospital took her away with the permission of the Sister in charge of the Convent, State v. Sher Singh Rana & Ors. Page 205 of 217 PW-5. The case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. It was also found as a fact that the deceased was last seen alive only in his company, and that on information furnished by the appellant in the course of investigation, the jewels of the deceased, which were sold to PW-11 by the appellant, were seized. There was clear evidence to prove that those jewels were worn by the deceased at the time when she left the Convent with the appellant. When questioned under Section 313 Cr.P.C., the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In the background of such facts, Supreme Court held:
"Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person State v. Sher Singh Rana & Ors. Page 206 of 217 concerned with the crime committed. That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy."
338. In Ram Gulam Chaudhary and Ors. v. State of Bihar; AIR 2001 SC 2842 the facts proved at the trial were that the deceased boy was brutally assaulted by the appellants. When one of them declared that the boy was still alive and he should be killed, a chhura blow was inflicted on his chest. Thereafter, the appellants carried away the boy who was not seen alive thereafter. The appellants gave no explanation as to what they did after they took away the boy. The question arose whether in such facts Section 106 of the Evidence Act applied. Supreme Court held as under:
"In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did State v. Sher Singh Rana & Ors. Page 207 of 217 with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference."
339. In Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai AIR 2003 SC 215, the prosecution established the fact that the deceased was seen in the company of the appellants from the morning of March 5, 1985 till at least 5 p.m. on that day when he was brought to his house, and thereafter his dead body was found in the morning of March 6, 1985. In the background of such facts Supreme Court observed:
"Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted State v. Sher Singh Rana & Ors. Page 208 of 217 company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever".
297. As regards false defence taken by an accused, it was further observed in the case "Swapan Patra and Ors. Vs. State of W.B., (1999) 9 SCC 242 Supreme Court as under:
"It is well settled that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstance to complete the chain.
Applying the aforesaid principle, we have no hesitation to hold that the circumstances established in the case complete the chain of circumstances to prove the charge of murder against the appellant Swapan Patra and, therefore, the conviction of appellant Swapan Patra has to be upheld under Section 302 IPC.State v. Sher Singh Rana & Ors. Page 209 of 217
So far as the other two appellants are concerned, as stated earlier, in the absence of any positive evidence even about their presence in the house at the relevant point of time, it is difficult to rope them in even if all other circumstances narrated earlier are established and, therefore, they are entitled to an order of acquittal."
346. In the decision reported as State of Maharashtra v. Suresh, (2000) 1 SCC 471, Supreme Court held as under :-
"It is regrettable that the Division Bench had practically nullified the most formidable incriminating circumstance against the accused spoken to by PW 22 Dr. Nand Kumar. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25.12.1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of PW 22 Dr. Nand Kumar. A false answer offered by the accused State v. Sher Singh Rana & Ors. Page 210 of 217 when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain."
298. The net result of the aforesaid discussion is that the prosecution has been able to prove that accused Sher Singh Rana who was present at the house of Smt. Phoolan Devi since morning on 25.07.01 was found absent right from the time of incident and that the assailants used his Car in fleeing away from the spot. These circumstances coupled with non-furnishing of any explanation by accused Sher Singh Rana as regards his presence or the circumstances in which his Car No. CIM-907 came to be used by the assailants is in itself sufficient to draw the conclusion that accused Sher Singh Rana was either one of the two assailants who fired at Smt. Phoolan Devi and Ct. Balender or was their third accomplice who drove away Car No. CIM-907 facilitating the escape of two shooters. The aforesaid conclusion further gets support from the fact that accused Sher Singh Rana thereafter on 25.07.01 and 26.07.01 was found to be staying at hotels in Haridwar and Rishikesh Road, Haridwar under false names. The fact that he signed the register of hotel "Pramila" as Anoop Singh clearly proves this act of abscondance and hiding by accused Sher Singh Rana beyond all reasonable doubts. The two extra judicial confessions made by accused Sher Singh Rana at the Press Conference at "Doon Press Club" and at PS Dallanwala provides yet another link to the circumstantial chain of circumstances. The false plea of defence taken by accused that he was illegally detained by the police from State v. Sher Singh Rana & Ors. Page 211 of 217 the spot itself alongwith all other persons present in the house and was later shown to have been arrested after two days from Dehradun operates as yet another incriminating circumstance against him.
299. Thus the aforesaid incriminating circumstances which stands proved on record against accused Sher Singh Rana form such a continuous and complete chain of incriminating circumstances which are explainable only on one hypothesis which is consistent with the guilt of accused Sher Singh Rana only and is not explainable on any other ground much less being consistent with the innocence of accused Sher Singh Rana.
300. At this stage, I may also mention that on one of the two revolvers recovered from Car No. CIM-907 the chance prints lifted tallied with that of accused Sher Singh Rana but I am not touching the said issue as the said aspect is not free from doubts as has already been discussed by me in the case qua accused Dhan Parkash.
301. An important question which may arise in the facts and circumstances of the case is who were the other associates of accused Sher Singh Rana who either fired at Smt. Phoolan Devi and at Ct. Balender or drove away Car No. CIM-907 facilitating the escape of the two assailants from the spot. As already discussed qua the case of accused Shekhar Singh and Dhan Parkash, the prosecution has failed in establishing beyond reasonable doubts that they were involved in the present conspiracy in any manner much less in the actual shooting incident. However it is clear form the overall facts and circumstances of the State v. Sher Singh Rana & Ors. Page 212 of 217 case that there were indeed three persons involved in the actual shooting incident and out of them while two fired towards Smt. Phoolan Devi and Ct. Balender, the third drove away Car No. CIM-907 facilitating the escape of the two shooters from the spot.
302. It is thus clear that the murder of Smt. Phoolan Devi or the murderous attack upon Ct. Balender was carried out by accused Sher Singh Rana in furtherance of common intention shared by his two other accomplice whose identity though otherwise could not be established by the prosecution in the present case.
303. In view of my aforesaid discussion it is thus clear that though any conspiracy to commit murder of Smt. Phoolan Devi or that of Ct. Balender having been hatched by accused Sher Singh Rana alongwith other co-accused persons could not be proved by the prosecution but at the cost of repetition I may state that the guilt of accused Sher Singh Rana qua the murder of Smt. Phoolan Devi and his act of attempting to commit murder of Ct. Balender in furtherance of common intention shared by him with two other persons stand amply proved beyond shadows of all reasonable doubts. However as it could not be conclusively established as to whether accused Sher Singh Rana was amongst the two shooters who fired at Smt. Phoolan Devi and Ct. Balender or was the driver of car no. CIM 907 in which the two shooters fled away from the spot soon after the incident so in these circumstances it can not be presumed that accused Sher Singh Rana was in possession of any unlicensed arm much less he used it in the incident in question. The charges for the offence u/s 25 (1B)/27 Arms Act, 1959 thus does not stand proved against him beyond State v. Sher Singh Rana & Ors. Page 213 of 217 shadows of reasonable doubts.
304. Similarly as the charge of conspiracy could not be proved so accused Sher Singh Rana cannot be held guilty even for the offence u/s 193/419/468/471 IPC r/w section 120B IPC or for the offence u/s 25/27 Arms Act, 1959 r/w section 120B IPC for which charges were framed against him.
305. However prosecution has been successful in proving its case against accused Sher Singh Rana for the offence u/s 302/34 IPC and section 307/34 IPC i.e. for committing murder of Smt. Phoolan Devi and for attempting to commit murder of Ct. Balender beyond shadows of all reasonable doubts.
Final decision
306. Though the charges as framed by, the then, Ld. Predecessor of this court are under various heads but the primary charge framed against all the accused persons except accused Keshav Chauhan is for the offence u/s 120B IPC r/w section 302/193/419/468/471 IPC and section 25/27 Arms Act r/w section 120B IPC. However as already discussed the factum of there being any conspiracy amongst various accused persons could not be proved by the prosecution at all so all the accused persons namely, Sher Singh Rana, Shekhar Singh, Rajbir Singh, Rajender Singh, Dhan Parkash, Vijay Singh, Surender Singh Negi, Parveen Mittal, Amit Rathi and Sharwan Kumar stands acquitted for the said offence i.e offence u/s 120B IPC r/w section 302/193/419/468/471 IPC and section 25/27 Arms Act.
State v. Sher Singh Rana & Ors. Page 214 of 217307. Charge for the offences u/s 302/307/34 IPC was also framed against accused Shekhar Singh, Rajbir and Dhan Parkash and they all stand acquitted for the said offences also.
308. Charge for the offences u/s 419/468 IPC and section 471 IPC r/w section 468 IPC was framed against accused Rajbir and he stand acquitted for the said offences.
309. A separate charge for the offence u/s 307 IPC and for the offence u/s 25 (1B)/27 Arms Act was framed against accused Dhan Parkash and he stand acquitted for the said offences.
310. Charge for the offences u/s 419/468 IPC was also framed against accused Surender Singh Negi and he too stand acquitted for the said offences.
311. Charge for the offence u/s 25 (1B)/29 Arms Act, 1959 was framed against accused Parveen Mittal and he stand acquitted for the said offences.
312. Charge for the offence u/s 25 (1B)/29 Arms Act, 1959 was framed against accused Amit Rathi and he stand acquitted for the said offences.
313. Charge for the offence u/s 25/27 Arms Act, 1959 and separate charge for the offences u/s 419/468 IPC and 193 IPC was also framed against accused Sharwan Kumar and he stand acquitted for the same.
State v. Sher Singh Rana & Ors. Page 215 of 217314. Charge for the offence u/s 201 IPC was framed against accused Keshav Chauhan and he stand acquitted for the same.
315. Charge for the offence u/s 193 IPC and for the offence u/s 25 (1B)/27 Arms Act was also framed against accused Sher Singh Rana and he stand acquitted for the said offences.
316. However prosecution has been successful in proving its case against accused Sher Singh Rana for the offences u/s 302/307/34 IPC so he is accordingly convicted for the said offences.
317. For a ready reference the final decision as mentioned above is being reproduced in a tabular form hereunder:-
S. Name of CHARGES FRAMED Final Decision
No accused
(I) (II) (III) (IV)
1 Sher Singh U/s 120-B r/w Sec. U/s 302/ U/s 193 Convicted for the
Rana @ Sheru 302/ 193/ 419/ 468/ 307 r/w IPC, U/s offence u/s 302/
@ Pankaj 471 IPC Sec. 34 302/307 307/ 34 IPC
and Sec. 25/ 27 of IPC r/w Sec. Acquitted for the
Arms Act 34 IPC offences u/s 120B
&25(1B) / r/w Sec. 193/419/
27 468/471 IPC and
Arms Act Sec. 25/27 Arms
Act and for the
offences u/s 193
IPC and for the
offence u/s
25(1B)/ 27 Arms
Act
2 Shekhar Singh U/s 120-B r/w Sec. U/s 302/ U/s Acquitted for all
Panwar 302/ 193/ 419/ 468/ 307 r/w 302/307 offences
471 IPC & Sec. Sec. 34 r/w Sec.
25/27 of Arms Act IPC 34 IPC
3 Raj Bir Singh U/s 120-B r/w Sec. U/s 302/ U/s 419/ U/s Acquitted for all
302/ 193/ 419/ 468/ 307 r/w 468 & U/s 302,307 offences 471 IPC & Sec. 25/ Sec. 34 471 r/w r/w Sec.
27 of Arms Act IPC S.468 34 IPC
IPC
State v. Sher Singh Rana & Ors. Page 216 of 217
4 Rajender Singh U/s 120-B r/w Sec. Acquitted for all
@ Ravinder 302/ 193/ 419/ 468/ offences
Singh 471 IPC
and Sec. 25/ 27 of
Arms Act
5 Dhan Parkash U/s 120-B r/w Sec. U/s 302/ U/s U/s 307 Acquitted for all
@ Vicky @ 302/ 193/ 419/ 468/ 307 r/w 302/307 IPC, 25 offences
Dheeraj 471 IPC Sec. 34 r/w Sec. (1B)/27
and Sec. 25/ 27 of IPC 34 IPC Arms
Arms Act Act
6 Vijay Singh U/s 120-B r/w Sec. Acquitted for all
Rana @ Raju 302/ 193/ 419/ 468/ offences
471 IPC
and Sec. 25/ 27 of
Arms Act
7 Surender Singh U/s 120-B r/w Sec. U/s 419/ Acquitted for all
Negi @ Suri 302/ 193/ 419/ 468/ 468 IPC offences
471 IPC
and Sec. 25/ 27 of
Arms Act
8 Parveen Mittal U/s 120-B r/w Sec. 25 (1B) Acquitted for all
302/ 193/ 419/ 468/ Arms Act offences
471 IPC r/w Sec.
and Sec. 25/ 27 of 29 Arms
Arms Act Act
9 Amit Rathi U/s 120-B r/w Sec. 25 (1B) Acquitted for all
302/ 193/ 419/ 468/ Arms Act offences
471 IPC r/w Sec.
and Sec. 25/ 27 of 29 Arms
Arms Act Act
11 Sharwan Kumar U/s 120B r/w Sec. 302/ 193/ 419/ 468/ 471 IPC and Acquitted for all
u/s 25/ 27 Arms Act and 419/ 468/ 193 IPC offences
10 Keshav U/s 201 IPC Acquitted for
Chauhan offence u/s 201
IPC
ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR)
TODAY i.e. 08.08.2014 Additional Sessions Judge-01
New Delhi District
Patiala House Courts
New Delhi
State v. Sher Singh Rana & Ors. Page 217 of 217