TaxTMI 
TaxTMI 
2009 (8) TMI 1231
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.... did not return to his residence till late evening and could not be contacted on his mobile phone since the same was switched off. His wife got worried. She contacted the younger brothers of Atma Ram Gupta as also her children and apprised them of the situation. The children of Atma Ram Gupta as also his younger brothers came to his residence and made inquiries from persons who were in contact with Atma Ram Gupta during the day. They could not ascertain the whereabouts of Atma Ram Gupta till midnight and thus Rajinder Pal Gupta PW-9, the younger brother of Atma Ram Gupta, lodged a missing person report at PS Keshav Puram. HC Ashok Kumar PW-6, recorded DD No. 31, Ex.PW-6/A at 1:00 AM on 25.8.2002 in which it stands recorded that on 24.8.2002 at about 10:30 AM Atma Ram Gupta left his residence in his white coloured Indica Car bearing registration No. DL 6SA 0025 which was driven by the driver Prabhu Yadav and that he went to the residence of Sharda Jain, a Member of Indian National Congress and also a Municipal Councillor from Keshav Puram Ward New Delhi. That on reaching the residence of Sharda Jain, Atma Ram sent back his car with the driver and thereafter, in the company of Sharda....
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....2002, Inspector Shiv Raj Singh PW-55, recorded the statement Ex.PW-11/DA of Om Parkash, the driver of Sharda Jain, and the statement Ex.PW- 10/A of the mother of Om Parkash namely, Shanti PW-10. 8. In his statement Ex.PW-11/DA, Om Parkash stated that he had driven Sharda Jain and Atma Ram Gupta in the car of Sharda Jain to the venue of the rally at Firozshah Kotla Grounds and that another person named Rajesh @ Raju was also in the car. From the venue of the rally they all left and he drove the car towards ring road. When the car reached the red light near Hanuman Mandir at Jamuna Bazar, Nigam Bodh Ghat, since he was not feeling well, he got down from the car and Rajesh started driving the car. He further stated that Raj Kumar the brother of Sharda Jain, Rajesh @ Raju and a person named Roshan Singh Pradhan had visited the house of Sharda Jain 8-10 days prior to 24.8.2002 and he saw them again in the house of Sharda Jain on 22.8.2002. He heard suspicious talks between Roshan Singh and Sharda Jain. He further disclosed that in the night of 24.8.2002 Sharda Jain had visited his house and had told him not to divulge to anyone that Atma Ram Gupta was in her company in the morning of ....
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....s were transpiring in the house of Sharda Jain, Raj Kumar the brother of Sharda Jain came there and tried to slip away on seeing the police. However, he could not manage to escape and was arrested at 3 P.M. as recorded in the arrest memo Ex.PW-44/A. On being interrogated by Inspector V.S. Meena PW-62, in the presence of Inspector Shiv Raj Singh PW-55 and SI Anil Kumar PW-44, Raj Kumar made a disclosure statement Ex.PW-44/O wherein he disclosed that he was a party to the conspiracy with Sharda Jain and two other persons; namely, Roshan Singh and Rajinder to murder the deceased and that two other persons; namely, Pushpender and Nirvikar were the hired assassins who fired shots at the deceased in pursuance of the said conspiracy. He stated that he could lead the police to the place and identify the same, where the deceased was murdered. He further disclosed that he had removed the wrist watch of the deceased and could get the same recovered. 15. Pursuant to their respective disclosure statements, Sharda Jain and Raj Kumar led the police party consisting of Inspector V.S. Meena PW-62, HC Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar Chauhan PW-44 and SI Shiv Raj Singh PW-55 to a D....
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....identification of the said body. Rajinder Pal Gupta PW-9, Ved Prakash Gupta PW-15, Rajpal Gupta PW-16, brothers of the deceased and Mahender Pal Gupta PW-8 and Amrit Lal Singhal PW-37, friends of the deceased, identified the body found in the canal as that of the deceased. 20. Since the body of the deceased was found within the jurisdiction of Police Station Gulawati, UP, the police officials of the said police station were joined in the recovery. Inspector V.S. Meena PW-62, informed the duty officer of PS Gulawati by way of a written application Ex.PW-62/C about the recovery of the body of the deceased based whereon Const. Lalit Kumar PW-60, prepared DD Entry Ex.PW-60/B at 5.00 A.M. on 31.08.2002. Taking along a copy of the afore- noted DD Entry, SI Rambir Singh PW-61, reached the canal, lifted the earth from near the canal and water oozing out from the body of the deceased and seized the same vide Ex.PW- 23/A. SI Rambir Singh also prepared inquest report Ex.PW-61/A and other documents pertaining to the recovery and conduct of post-mortem of the deceased. Inspector V.S. Meena PW-62, prepared the rough site plan Ex.PW-62/D of the place of the recovery of the body of the deceased....
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....nd on the person of the deceased and that the death of the deceased had taken place about one week prior to the conduct of the post-mortem. 24. After the post-mortem, the doctors handed over the clothes and artificial teeth, six in number; viscera of the deceased; vial of sample of preservative used for preserving the viscera of the deceased and one sample seal to SO of PS Gulawati. HC Ajay Pal PW-4, handed over the afore-noted materials as also the materials seized vide memo Ex.PW-23/A; namely, earth lifted from near the canal and water which had oozed out from the body of the deceased; the post-mortem report and its copies and the inquest papers to Inspector V.S. Meena PW-62, vide memo Ex.PW-4/A. 25. Since accused Roshan Singh could not be located in his house, the police flashed a wireless message, Ex.PW-55/A, to all SSP's and DCP's in India to search for Roshan Singh and a Maruti 800 car bearing registration No. DDU 1371 owned by him. Proceedings were initiated to declare him a proclaimed offender. 26. Attempts were made to trace Pusphpender and Nirvikar. On 6.9.2002, Inspector Ram Chander PW-20, along with other police officials was present near PS Tappal, Dis....
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....rty consisting of Inspector V.S. Meena PW-62 and SI Sukaram Pal PW-39, to a Dak Bangla near a Rajwaha which was situated behind village Chajjupur, U.P. and vide pointing out memo Ex.PW-39/B pointed out a spot and stated that said spot is the place of the murder of the deceased. (It may be noted here that the said spot is the same which was told by accused Sharda Jain and Raj Kumar as the spot where the murder of the deceased was committed i.e. the spot was already known to the police). Thereafter, he led the afore-noted police officials to the residence of his brother-in-law situated at village Chajjupur and got recovered an I-card issued in the name of the deceased by ISCKON, from underneath a trunk, which was seized vide memo Ex.PW-39/C. (It may be noted here that in the disclosure statement Ex.PW-39/A made by accused Nirvikar he has not made any mention of any I-card or of the fact that he can get one recovered). 30. On the basis of secret information, the police party, consisting of Inspector V.S. Meena PW-62, SI Anil Kumar Chauhan PW-44 and SI Sukaram Pal PW-39, arrested accused Rajinder Singh at a bus stand situated at JJ Colony, Wazirpur, Delhi, at 8.30 P.M. on 30.09.2002....
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....old chain is found. All the wrist watches including the case property is displayed by me in a row and the case property is lying at fourth position from my left and at sixth place from my right. It is pertinent to mention here that the dial, chain and design of wrist watches produced by IO for the purpose of mixing up is similar to that of the case property. The make of wrist watches brought by IO is of different companies and there is no wrist watch of make citizen. (Emphasis Supplied) 34. On 14.10.2002 a secret information was received by Inspector J.R. Uike PW-63, posted at PS Babai, District Hoshangabad, MP, that accused Roshan Singh is present at Rampur Tala near the tube well of Kamal Singh, pursuant whereto he went there and arrested Roshan Singh at 6.10 P.M. in the presence of two public witnesses; namely, Lalit Dubey PW-56 and Ram Bilas PW-57, as recorded in the arrest memo Ex.PW-63/A2. 35. On the next day i.e. 15.11.2002 the SP, Hoshangabad, sent the information, Ex.PW-63/B, about the arrest of Roshan Singh to the Commissioner of Police Delhi, pursuant whereto, Inspector VS Meena, accompanied by Inspector Ram Chander PW-20 and SI Sukaram Pal PW-39, went to ....
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....cles were recovered. He also prepared the sketches of the pistols and live cartridges recovered at the instance of Roshan Singh, being Ex.PW-39/H, Ex.PW-39/J and Ex.PW-39/K respectively. All the seized articles were deposited in the Malkhana on 22.11.2002 as recorded vide entry No. 1642 entered in the store room register (part I) by HC Dinesh Kumar PW-43. 38. Thereafter Roshan Singh led the police officers and pointed out the spots where the deceased was murdered and body of the deceased respectively was thrown into the canal, vide pointing out memos Ex.PW-39/H and Ex.PW-39/N respectively. (It may be noted here that the spot which was pointed out by accused Roshan Singh as the place of the murder of the deceased is the same which was told by accused Sharda Jain and Raj Kumar as the spot where the deceased was murdered i.e. the spot was already known to the police). (It may further be noted here that sketch of one of the pistols recovered at the instance of accused Roshan Singh as also the pointing out memo of the place of murder of the deceased prepared at the instance of Roshan Singh have been exhibited as Ex.PW-39/H i.e. two documents have been given the same exhibit mark.) Th....
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....-mortem injury No. (1) found on the person of the deceased could possibly be caused by one of the said two pistols. 41. In view of what was told to Inspector V.S. Meena by Subhash, it became apparent that Shri Pal Singh Raghav, Rakesh Kumar and Satender Kumar became suspects regarding the disposal of the dead body. 42. On 11.12.2002 Inspector V.S. Meena, accompanied by SI Sukaram Pal PW-39, went to PS Vijay Nagar, Ghaziabad, UP where he arrested Sripal Singh Raghav and Satender Kumar at 6.00 PM as recorded in the arrest memos Ex.PW-39/T and Ex.PW-39/U. On interrogation by Inspector V.S. Meena, in the presence of SI Sukaram Pal PW-39, accused Sripal Singh Raghav and Satender Kumar made disclosure statements Ex.PW-39/P and Ex.PW-39/Q respectively, wherein they disclosed that along with Roshan Singh and another police officer; namely Rakesh Kumar, they threw the body of the deceased into the canal. Both of them led Inspector V.S. Meena to the place which had already been identified to the police as the place where the deceased as murdered and vide pointing out memos Ex.PW-39/V, Ex.PW-39/X, Ex.PW-39/Y and Ex.PW- 39/W accused Sripal Singh Raghav and Satender Kumar pointed out the ....
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....sed Sharda Jain and Raj Kumar as the place of the murder of the deceased, the clothes, artificial teeth and viscera of the deceased, the sample of the vial used for preserving the viscera of the deceased, the tyre of the car of Sharda Jain, two country made pistols and cartridges were sent to the Forensic Science Laboratory for serological/chemical/ballistic examination. 47. Vide CFSL report Ex.P-1, it was opined that the samples of the blood of the parents of the deceased and the sample of the tissue of the body recovered from the canal were subjected for DNA isolation by organic extraction method and that the said sample of tissue belongs to the male child of the parents of the deceased. Vide FSL reports Ex.PW-41/A and Ex.PW-41/B it was opined that the earth/soil/mud lifted from the place of occurrence was found to be stained with human blood; group whereof could not be determined and that blood could not be detected on the clothes and artificial teeth of the deceased. Vide FSL report Ex.PW-66/A it was opined that the mud/soil lifted from the place of occurrence and the soil/mud found stuck on the tyre of the car of Sharda Jain were similar in physical characteristics. Vide FS....
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..... DL-3S- AB-0016, being driven by accused Rajinder Singh, and in a friendly manner, led him to a Dak Bangla near a Rajwaha situated behind village Chajjupur, UP, where accused Pushpender and Nirvikar fired shots at the deceased and caused his death. Thereafter Sharda Jain along with Rajinder Singh left the spot and asked the other accused persons to dispose of the body of the deceased. Roshan Singh asked the remaining accused persons; namely, Raj Kumar, Pushpender and Nirvikar to disperse and told them that they would come back to said spot in the evening to dispose of the body of the deceased. Before dispersing from the place of the crime, the said accused persons removed the I-cards, wrist watch and gold ring of the deceased. However, everything did not work out according to their plan inasmuch as Subash, who is a resident of village Chajjupur, got knowledge about the presence of a body at the place in question. Notwithstanding the said obstacle, Roshan Singh, with the aid accused Sripal Singh Raghav, Rakesh Kumar and Satender Kumar managed to dispose of the body of the deceased by throwing the same in the canal flowing near the place where the deceased was murdered. 49. Charg....
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....e basis of the report lodged by Rajinder Pal Gupta PW-9, regarding the deceased being missing. It may be noted here that the testimony of the said witness was not controverted by the defence. SI Shiv Raj Singh PW-55, deposed that the endorsement Ex.PW-55/C was recorded by him at 12.05 PM on 25.08.2002. No suggestion was given to the said witness in his cross-examination regarding the recording of the said endorsement. Jitender PW-25, deposed having handed over the endorsement Ex.PW-55/C to the duty officer at Police Station Keshav Puram. HC Savitri PW-27, deposed having registered FIR Ex.PW-27/A at 12.20 PM on 25.08.2002. HC Sher Singh PW-35, deposed having delivered copies of the FIR to the Ilaqa Magistrate and senior police officers. B Witnesses to prove last seen, suspicious conduct of Sharda Jain and factum of hatching of conspiracy by the accused persons:- Sumitra Gupta PW-18, Prabhu Yadav PW-17, Manish PW-14, Om Prakash Chauhan PW-11 and Rajinder Pal Gupta PW-9. 53. Sumitra Gupta PW-18, the wife of the deceased, deposed that on 24.08.2002, at about 10.15 AM the deceased left his residence in his Indica car bearing registration No. DL 6SA 0025, which was driven by his dr....
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....dence of Sharda Jain, the deceased told him to take back the car to his house and meet him in the evening. He had seen the deceased, Sharda Jain and another person whom he cannot identify, sitting in the car of Sharda Jain, being driven by Om Prakash Chauhan, the driver of Sharda Jain. On returning the residence of the deceased, he handed over the keys of the car of the deceased to the wife of the deceased and told her that accompanied by Sharda Jain the deceased had gone to attend the rally in the car of Sharda Jain. Thereafter he left for his house. On the same day, at about 05.00 PM he again returned to the residence of the deceased but the deceased was not present there. He remained at the residence of the deceased till about 7.00 PM - 8.00 PM but the deceased did not return. 56. On being cross-examined about the instructions given to him by the deceased on 24.08.2002 at the time when he dropped the deceased at the residence of Sharda Jain, Prabhu Yadav stated (Quote): 'When Atma Ram Gupta left for rally in the car of Sharda Jain he had told me to come to his house at 05.00 PM and he had not told me that I should come to Kamal Clinic of Dr.Mahender Pal Gupta'. It may....
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....e deceased with the above facts. 59. On being cross-examined by the learned APP since Om Prakash deviated from his statement recorded under Setion 161 Cr.P.C., Om Parkash stated that eight-ten days prior to 24.08.2002, Accused Raj Kumar along with two other persons whom he cannot identify, had come to the residence of Sharda Jain. He denied having listened to any talks between Sharda Jain, Raj Kumar and said two persons regarding payment in sum of Rs. 1 lakh or that he had given any such statement to the police. He stated that on 22.08.2002 Raj Kumar along with said two persons again came to the residence of Sharda Jain. On being confronted with his statement Ex.PW-11/DA wherein it was recorded that accused Sharda Jain had come to his residence and threatened him in the intervening night of 24/25.08.2002, he stated (Quote): 'It is incorrect to suggest that in the night at about 12:00 of 24.8.2002 Sharda Jain had also come to my house or that she told me that I should not tell to anybody that Atma Ram Gupta was also with her on that day otherwise consequences would not be good nor I so stated to the police. Confronted with portion C to C of mark PW-11/A where it is so recorde....
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....sh PW-14, the son of Mahender Pal Gupta PW-8 a friend of the deceased, deposed that on 24.08.2002 he attended a rally at Firozshah Kotla ground. He had last seen the deceased in the rally at about 12 noon. On the way after returning from the rally, his car was moving behind a car in which the deceased along with Sharda Jain and accused Rajinder Singh were traveling and that the said car was being driven by the driver of Sharda Jain. He saw that the said car stopped near the red light at Nigam Bodh Ghat, whereupon the driver of the car got down and started walking towards ISBT. He made enquiries from the deceased, who told him that driver of Sharda Jain has left as he was not feeling well and that accused Rajinder would drive the car in the absence of the driver of Sharda Jain. Thereafter, accused Rajinder sat on the driver's seat and drove the car towards ISBT. That he first identified accused Rajinder on 2.10.2002 at PS Keshav Puram when he had gone there to lodge a report about his mobile phone being missing. 64. On being cross-examined about his mobile phone being missing, Manish stated (Quote): 'I had lost my mobile phone and therefore, I had gone to the PS Keshav Pu....
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....n in his presence wherein Sharda Jain told him that the third person sitting in the car was her brother-in-law Sunil Jain, which fact was found to be false by the police. 66. On being cross-examined about his presence at the residence of the deceased on 24.08.2002 at the time when the deceased left the residence of Sharda Jain, Rajinder Pal Gupta stated (Quote): 'On 24.8.2002 Atma Ram Gupta had left the house to attend the Congress Rally in my presence. Volt : I have my office in Tri Nagar where I go daily. I usually used to go to the house of my brother Atma Ram Gupta. If the police had asked me if Atma Ram Gupta left his house in my presence on 24.8.2002 then I must have so stated. At this stage the defence counsel has asked the witness to go through his Ex.PW9/C and then answer if Atma Ram Gupta had left the house in his presence. The witness has stated that it is not so written in Ex.PW9/C.' C Witnesses to prove the deposit of the wrist watch and the gold ring of the deceased recovered at the instance of accused Raj Kumar and Roshan Singh in the Malkhana:- Inspector V.S. Meena PW-62 and HC Dinesh Kumar PW-43. 67. Inspector V.S. Meena PW-62, deposed that the wri....
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....d stitched on the shirt of the said safari suit. (It may be noted here that no question regarding the presence of a wrist watch on the body of the deceased was put to the said witnesses in their cross-examinations). 71. Zaheer Ahmad PW-36, deposed that he runs a tailoring shop in the name and style of 'Lovely Tailors' at Tri Nagar, Delhi. The deceased used to get his clothes stitched by him and that he stitches his label 'Lovely' on the clothes stitched by him. E Witnesses to prove the post-mortem report of the deceased:- Dr. S.K. Aggarwal PW-21. 72. Dr. S.K. Aggarwal PW-21, deposed that he conducted the post-mortem of the deceased on 31.08.2002 and that the post-mortem report Ex.PW-21/A as also the report Ex.P-W21/B regarding the opinion on the weapon of offence were prepared by him. F Witnesses to prove the reports submitted by the Forensic Science Laboratoy:- A.K.Srivastava PW-41, Sri Narain PW-42, K.C. Varsheny PW-50, Dr.Rajinder Kumar PW-59 and Dr. Swaroop Vedanand PW-66. 73. A.K. Srivastava PW-41, deposed that the FSL reports Ex.PW-41/A and Ex.PW-41/B were prepared by him. Sri Narain PW-42, deposed that the FSL report dated 29.01.2003 was prepar....
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....t the deceased enrolled himself as a member of All India Crime Prevention Organization on 08.03.1995 and that the I-card Ex.PW-2/A recovered at the instance of accused Pushpender was issued to the deceased on the same day. He further deposed that the membership of the deceased expired on 31.12.1995. Yadukuleshwar Dass PW-5, Vice-President of International Society for Krishna Consciousness (ISCKON), deposed that the deceased was a member of ISCKON and that the I-card Ex.PW-5/A recovered at the instance of accused Nirvikar was issued to the deceased. It may be noted here that the testimony of the said two witnesses was not controverted by the defence. 78. Rajinder Pal Gupta PW-9 and Sumitra Gupta PW-18, the younger brother and the wife respectively of the deceased, deposed that they had identified the wrist watch Ex.P-4 and the ring Ex.PW-18/1 of the deceased in a Test Identification proceedings. On being questioned about the wrist watch in question, Rajinder Pal Gupta stated (Quote): 'Atma Ram Gupta had gone to Singapur perhaps in the year 1996 and from where he had brought the wrist watch Ex. P-4 but I was not present when he purchased the watch.... It is correct that there ....
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....at 4.30 P.M. and Ashok Vihar at 5.31 P.M. 84. Inspector V.S. Meena PW-62, deposed that he obtained the call record Ex.PW-62/A of the mobile number 9811508688 pertaining to the period 01.06.2002 to 26.08.2002 during the course of the investigation of the present case. He further deposed that on the basis of the said record he prepared a chart, Ex.PW-62/A1 which shows the movement of the mobile phone No. 9811508688 on 24.8.2002. 85. At this juncture, it may be noted that the call details pertaining to the mobile No. 9811508688 for the date 24.08.2002 contained in the call records Ex.PW-34/A and Ex.PW-62/A are exactly the same. I Witnesses to prove the motive of Sharda Jain to murder the deceased:- Mahender Pal Gupta PW-8, Captain Dr.Satish Chand Rajput PW-3, Const.Satbir Singh PW-7, ASI Baljeet Singh PW-19, Dr.Sunil Markan PW-24, HC Bhagirath PW-28 and Tariq Nasir PW-58. 86. Mahender Pal Gupta PW-8, a friend of the deceased, deposed that he runs a medical clinic at Keshav Puram, Delhi and that Sharda Jain used to visit his clinic along with the deceased. The deceased provided help to Sharda Jain when she contested elections for the post of Municipal Councilor and that Sha....
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....ion of Delhi were held in Feb. 2002. No election office was opened in premises A-1 Keshav Puram before the said elections of Feb. 2002. I stated to the police that Sharda Jain told me that because of her said relations with Atma Ram Gupta, she left her husband. (confronted with statement mark PW8/C, now exhibited as Ex.PW8/DA where it is no recorded) I do not recollect the date but it was month of July 2002 when Sharda Jain told me the facts that I have deposed today I did not tell police that those facts were told to me by Sharda Jain in the month of July 2002. 88. Dr.Satish Chand Rajput PW-3, deposed that he runs a dental clinic at Vivek Vihar, Delhi. He deposed that the deceased visited his clinic on four dates, namely, 13/20/21/23 August 2002. On 30.07.2002 the deceased visited his clinic after the visiting hours. The deceased was accompanied by Sharda Jain in some of the visits. On 20.08.2002 he put an artificial denture from upper first canine to upper right canine in the jaw of the deceased. During one of the aforesaid visits, Sharda Jain told him that she would make payment for the treatment rendered by him to the deceased. That the photostat copies of the record of the ....
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....she has been admitted in the hospital, based whereon, he recorded DD Entries Ex.PW-7/A and Ex.PW-7/B. (It may be noted here that a perusal of the aforesaid entries shows that the same have been recorded on the intervening night of 24/25.10.2000 therefore, it is clear that either the witness has inadvertently deposed regarding the date in question or that there has been a typographical error at the time of the recording of the evidence). 93. ASI Baljeet Singh PW-19, deposed that he conducted investigation pertaining to the incident dated 25.10.2000 of consumption of sulfas tablets by Sharda Jain and that he prepared two DD entries Ex.PW-19/A and Ex.PW-19/B in said regard. It may be noted here that DD entry Ex.PW-19/B records that Sharda Jain gave a statement to the police to the effect that she inadvertently consumed sulfas tablets for the reason she was suffering from an illness as also was tense on account of the fact that her husband left for Madras but did not return home in spite of considerable time lapsing. 94. Dr.Sunil Marken PW-24, deposed that on 25.10.2000, Sharda Jain was admitted at Maharaja Agarsen Hospital as she had consumed sulfas tablets and that he prepared ....
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....ay of the incident. On that day the police did not meet me. It is correct that my statement was recorded by IO after about 3 months. During the said period of 3 months I myself did not go to any police official to inform about the above incident. 99. Mahender Pal Gupta PW-8, a friend of the deceased, deposed that on 28.08.2002, while he was sitting at his clinic, he saw a news item on TV, regarding the deceased being missing. He further learnt from the news item that the police, along with accused Sharda Jain, Raj Kumar and Raju had gone to village Chajjupur in connection with the present case. On reaching the rajwaha situated at village Chajjupur, he saw that accused Sharda Jain, Raj Kumar, Raju and Roshan Singh were present there. He further deposed that the police was making inquiry from accused Roshan Singh and that he does not recollect whether other accused persons; namely, Sharda Jain, Raj Kumar and Raju took part in the investigation. He stated that he appended his signatures on certain papers prepared in connection with the inquiries made from accused Roshan Singh as also signed the pointing out memos Ex.PW-8/A and Ex.PW-8/B of accused Sharda Jain and Raj Kumar. He iden....
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....ucted by him. He deposed that he prepared the various seizure memos and that he seized the exhibits recorded in the seizure memos and deposited the same in the malkhana. He deposed having sent various exhibits for forensic opinion and the reports received. Since, while noting the case of the prosecution with reference to the contemporaneous investigation allegedly conducted, where role of Inspector V.S. Meena has been extensively noted, we are not noting his testimony which is fairly lengthy, but clarify that would be noting such parts thereof as are relevant to be noted while dealing with the submissions made during arguments in the appeals. 105. In the backdrop of the aforesaid evidence led by the prosecution, the accused were examined under Section 313 Cr.P.C. 106. In her examination under Section 313 Cr.P.C., accused Sharda Jain stated that she is innocent and denied everything save and except admitted that she and Atma Ram Gupta in the company of accused Rajinder left her residence on 24.8.2002 to attend a Congress rally. She also admitted that after the rally Atma Ram Gupta left in her car but stated that he got down at ISBT. She also admitted that accused Raj Kumar is ....
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....ing any other co-accused. He denied every piece of incriminating evidence put to him. 109. In their examinations under Section 313 Cr.P.C. accused Pushpender and Nirvikar denied everything. 110. In their examinations under Section 313 Cr.P.C. Sripal Singh Raghav, Rakesh Kumar and Satender Kumar pleaded innocenc e and denied everything. They stated that they have been falsely implicated in order to save Govind Singh Rawat, SO of PS Gulawati. But how, they failed to disclose. 111. The accused led no evidence in their defence. ANALYSIS OF THE IMPUGNED JUDGMENT 112. After considering the evidence led by the prosecution as also the arguments advanced by the defence, vide impugned judgment and order dated 21.12.2006, the learned Trial Court drew 7 conclusions; namely, (i) that on 24.8.2002 the deceased was last seen alive in the company of accused Sharda Jain and Rajinder Singh; (ii) that the date of death of the deceased is 24.08.2002; (iii) that the prosecution has been able to establish the motive of Sharda Jain to do away with the deceased; (iv) that a false claim was made by Sharda Jain that she was not present at Ghaziabad on 24.08.2002 (v) that the testimony of Mahe....
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.... Memwati Barwala and was ignoring her; (v) the fact recorded in the DD entry, Ex.PW-6/A, that Sharda Jain misled the family members of the deceased when they made enquiries from her about the whereabouts of the deceased have not been controverted by the defence; and (vi) the fact that Sharda Jain tried to commit suicide on an earlier occasion indicates that she had close relations with the deceased. 116. As regards conclusion (iv), learned Trial Court held that (i) a cumulative reading of the call record Ex.PW-62/A of the mobile number of Sharda Jain and the Cell ID Chart Ex.PW-65/A which shows the locations of various towers installed by the cellular company at Delhi and NCR establishes that the mobile phone of Sharda Jain was present at Ghaziabad on 24.08.2002 inasmuch as incoming/outgoing calls were received/made on/from the mobile phone of Sharda Jain on the said day; and (ii) if the claim of Sharda Jain that she did not visit Ghaziabad on 24.08.2002 was correct, it was incumbent upon her to explain as to how the calls made/received to/from her mobile phone came to be routed through the towers installed at Ghaziabad and she failed to do so. 117. As regards conclusion (v),....
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....n the afore-noted 7 conclusions, the learned Trial Court proceeded to deal with the case against each of the accused person. Save and except accused Sripal Singh Raghav, Rakesh Kumar and Satender Kumar, the learned Trial Court convicted the other accused of all the charges framed against them. Holding that the prosecution has not been able to establish that accused Sripal Singh Raghav, Rakesh Kumar and Satender Kumar entered into a criminal conspiracy with the other accused persons to cause disappearance of the evidence of murder of the deceased, the learned Trial Court acquitted them of the charge framed against them for having committed the offence punishable under Section 120-B IPC. However, the learned Trial Court convicted the said three police officials under Section 201 IPC for causing disappearance of the evidence of the murder of the deceased. 121. The circumstances used by the learned Trial Court for convicting accused "Sharda Jain" are that (i) Sharda Jain pointed out the place of the murder of the deceased; (ii) the deceased was last seen alive in the company of Sharda Jain and that the time gap between the last seen and time of the death of the deceased is so small ....
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....d that the reason given by him for said refusal was not plausible. 124. The circumstances used by the learned Trial Court for convicting accused "Roshan Singh" are that (i) Roshan Singh was absconding from his house after 24.08.2002; (ii) testimony of Subash PW-38, establishes that Roshan Singh played a role in disposing of the body of the deceased; (iii) Roshan Singh was closely associated with other accused persons namely Rajinder Singh, Pushpender and Nirvikar; (iv) recovery of two country made pistols and the gold ring of the deceased at the instance of Roshan Singh; (v) Roshan Singh was arrested from Hoshangabad, M.P. and he failed to give any reason for his presence at M.P.; (vi) Roshan Singh failed to give any reason for his false implication in the present case; (vii) Roshan Singh pointed out the place of murder and disposal of the body of the deceased and (viii) the disclosure statement of Raj Kumar provided leads to the police. 125. The circumstances used by the learned Trial Court for convicting accused "Pushpender and Nirvikar" are (i) recovery of I-cards of the deceased at the instance of Pushpender and Nirvikar; (ii) Pushpender and Nirvikar were in need of a job....
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....en sentenced to undergo RI for four years and to pay a fine in sum of Rs. 5,000/- each, in default to undergo SI for three months. For the offence punishable under Section 201 read with Section 34 IPC accused Sripal Singh Raghav, Rakesh Kumar and Satender Kumar have been sentenced to undergo RI for three years and to pay a fine in sum of Rs. 5,000/- each, in default to undergo SI for three months. All the sentences were directed to run concurrently. LAW OF CONSPIRACY 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 (2) 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 agreem....
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....-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 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 tha....
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....ll 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 ....
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.... nature of circumstantial evidence in a case of conspiracy to bring home the guilt of the accused persons. 136. 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 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 farfetched and fanciful it may might be. (See the decision of Supreme Court reported as ....
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....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 order to furnish a basis for conviction requires a high degree of probability, that is, so sufficiently ....
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....ointing out memo Ex.PW-44/E is the place of murder of the deceased. No endeavor has been made out by the learned Trial Judge to determine whether the spot in question is the place of murder of the deceased. The approach of learned Trial Judge in assuming that the spot in question is the place of murder of the deceased is clearly erroneous. It was incumbent upon the learned Trial Judge to first determine from the facts emerging on record and the evidence led by the prosecution that whether the spot in question is the place of murder of the deceased. The learned Trial Judge has also not analyzed the evidence led by the prosecution to prove the pointing out of alleged place of murder of the deceased by accused Sharda Jain. 143. That being the case, we first proceed to undertake an inquiry whether the evidence led by the prosecution to prove the pointing out of alleged place of murder of the deceased by accused Sharda Jain is creditworthy and that whether the spot pointed out by accused Sharda Jain (herein after referred to as the "Spot A") is the place of murder of the deceased. 144. To establish the pointing out of spot A by accused Sharda Jain, the prosecution has examined the....
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....sideration is, what is the effect of doubtful testimony of Mahender Pal Gupta on the credibility of the other evidence led by the prosecution to establish that the pointing out of spot A by accused Sharda Jain and Raj Kumar. 148. On this aspect, suffice would it be to note the following observations of Supreme Court in the decision reported as State of UP v. Anil Singh AIR 1988 SC 1998: With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini 24 C.W.N. 626 PC, the Privy Council had this to say (at 628): That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence. 18. In Abdul Gani v. State of Madhya Pradesh AIR 1954 SC 31 Mahajan, J. speaking for this Court deprecated the tendency of courts....
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....is an undisputed fact that the body of the deceased was found in a canal. It is further undisputed that spot A is near the canal where the body of the deceased was found. 153. It is also not in dispute that the cause of death of the deceased was not drowning. The post-mortem Ex.PW-21/A of the deceased records that death of the deceased was caused due to a firearm injury, which recording is not challenged by the defence. It thus follows that the deceased was first murdered and thereafter his body was thrown into the canal. It further follows that body of the deceased was thrown at or ahead of the spot where it was found. 154. Another undisputed fact is that spot A is upstream of the spot where body of the deceased was recovered. 155. Having noted the undisputed facts emerging from the evidence on record, we proceed to deal with the facts sought to be established by the prosecution to prove that spot A is the place of murder of the deceased. 156. The first fact sought to be established by the prosecution is that human blood was found at spot A. To establish the said fact, the prosecution placed reliance upon the testimonies of the police officials who participated in the ....
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....operty till the time the same was deposited by him at the FSL. (It may be noted here that the said witnesses were not cross-examined on the said point. The testimony of the witnesses pertaining to the tampering of the case property was not controverted by the defence inasmuch as no contrary suggestion was given to them in their cross-examination). 164. The FSL report Ex.PW-41/A, which contains the description of the articles deposited at the FSL on 05.11.2002, records that exhibits 1 and 1A containing blood stained soil and exhibits 2, 2A and 2B containing earth control were deposited at the FSL. The question which stares in the face is that what happened to exhibit 1B. 165. The submission advanced by the learned senior counsel was that the fact that exhibit 1B did not reach the FSL strongly suggests that the exhibits containing soil lifted from spot A were tampered with and therefore, no reliance could be placed upon the FSL reports Ex.PW-41/A and Ex.PW-41/B. 166. To solve the mystery surrounding the disappearance of exhibit 1B, it is most necessary to note the endorsement dated 28.11.2002 made in the entry No. 1560 that on 28.11.2002 SI Anil Kumar Chauhan PW-44, collecte....
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....ourt on the ground that the witness in question was not specifically cross-examined on said point. 172. In the decision reported as Sunil Kumar v. State of Rajasthan (2005) 9 SCC 298 great stress was laid by the defence on the facts that there was delayed dispatch of the FIR to the Ilaqa Magistrate and delayed recording of the statements of the witnesses under Section 161 CrPC. One of the reasons which weighed with Supreme Court for not drawing an adverse inference against the prosecution was that no question was put to the Investigating Officer regarding the aforesaid delay. 173. The matter can also be looked from another angle. 174. As already pointed in foregoing paras, the evidence of HC Dinesh Kumar PW-43 and SI Sukaram Pal PW-39, that there was no tampering with the case property including the soil in question till the time the same remained in their possession has not been controverted by the defence. 175. It is settled law that where a witness is not cross-examined on any relevant aspect, the correctness of the statement made by a witness cannot be disputed. (See the decisions of Supreme Court reported as State of U.P. v. Nahar Singh AIR 1988 SC 1328 and Rajinde....
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....y degree of diploma in structural geology or physical geology. I am not aware about any course of physical geology', learned senior counsel contended that he cannot be taken as an 'expert' within the meaning of Section 45, Indian Evidence Act, 1872. In support of the said submission, reliance was placed upon the decisions of Supreme Court reported as State of HP v. Jai Lal (1999) 7 SCC 280, S. Gopal Reddy v. State of AP (1996) 4 SCC 596 and Magan Bihari Lal v. State of Punjab (1977) 2 SCC 210. 182. Section 45, Indian Evidence Act 1872 reads as under: 45. Opinion of experts - When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such persons are called experts. 183. Section 45 permits only the opinion of an expert to be cited in evidence. This requires determination of the question a....
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....um productive capacity of the apple orchards. The court noted that the witness in question had not received any training with respect to assessment of apple crop and that it was the first time that the witness assessed the productivity of an apple orchard. It was further noted by the court that there were glaring omissions and inadequacies in the report prepared by him. In that context, it was held that the witness in question cannot be considered as an expert on the subject of assessment of productive capacity of apple orchards. 188. The decisions of Supreme Court in S. Gopal Reddy and Magan Bihari Lal's cases (supra) has no application to the present case. In said cases, Supreme Court was dealing with the evidence of a handwriting expert. It was held by the court that evidence of a handwriting expert is a weak type of evidence and that it is unsafe to treat opinion of a handwriting expert as sufficient basis for conviction, but that it may be relied upon when supported by other items of internal and external evidence. 189. In view of the above discussion, we find no merit in the submission of learned senior counsel that Dr. Swaroop Vedanand cannot be considered as an &#....
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....00 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 o....
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....ny 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 belief of the person stating it. (5) For the purp....
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....ns 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 ma....
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....dy noted in foregoing paras, Om Parkash Chauhan PW-11, deposed that on 24.08.2002 that at the time when the deceased and Sharda Jain returned from the rally Sharda Jain instructed him to go towards Ghaziabad. (It may be noted here that Ghaziabad is in the vicinity of spot A) 212. To assail the aforesaid testimony of Om Parkash Chauhan, a submission was advanced by the learned Counsel for Sharda Jain that it is not mentioned in the statement Ex.PW-11/DA of Om Parkash recorded under Section 161 Cr.P.C. that Sharda Jain instructed him to go towards Ghaziabad on 24.08.2002 and that the said omission casts a serious doubt on the truthfulness of the said testimony. 213. To deal with the said submission, the decision of Supreme Court reported as 2000 (4) SCC 484 Jaswant Singh v. State of Haryana needs to be noted. In the said case, the evidence of an eye-witness was assailed on the ground that the witness did not state the details of the injuries inflicted or of the person who caused the injuries in her statement recorded under Section 161 Cr.P.C. while the said details were deposed to by her before the Court. Repelling the above contention, Supreme Court observed: Section ....
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....16. Om Parkash Chauhan has withstood the test of cross-examination. There was no reason for Om Parkash Chauhan to give false evidence against Sharda Jain. Thus, we hold that Om Parkash Chauhan has truthfully deposed that Sharda Jain instructed him to go towards Ghaziabad on 24.08.2002. 217. The aforesaid testimony of Om Parkash Chauhan establishes that the car of Sharda Jain was to be driven towards Ghaziabad on 24.08.2002. 218. Did Sharda Jain go to, or near Ghaziabad on 24.08.2002? Before embarking on the discussion of the evidence on said issue, we may note at the outset that village Chajjupur is at a distance of about 22 kms from Ghaziabad and the canal in which the body of the deceased was found flows through village Chajjupur. Thus, the relevance of Sharda Jain being somewhere in the area of Ghaziabad assumes significance. 219. In her examination under Section 313 Cr.P.C., Sharda Jain did not disclose where she went after the rally on 24.08.2002. Neither did she explain as to how mud having similar characteristics as soil found at spot A was found to be stuck on her car. 220. In the decision reported as Sucha Singh v. State of Punjab AIR 2001 SC 1436 Supreme Court....
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.... the deceased was recovered. (v) Human blood was found at spot A. (vi) Car of Sharda Jain was driven to a spot where soil had similar physical characteristics as soil found at point A. Sharda Jain's car was obviously driven on soft soil and she has not explained why it was so driven. (vii) Sharda Jain was present in the vicinity of spot A on 24.08.2002. 225. With reference to our discussion in paras 137 to 139 above, it is apparent that law does not require a 100% standard of proof before a fact can be said to be proved. A fact is proved where on the basis of evidence before it, a reasonable mind would draw a conclusion that the fact is proved. From the testimony of the driver of Sharda Jain we have on record the fact that Sharda Jain along with the deceased was travelling in her car towards Ghaziabad. The deceased did not return home and was last seen in the company of Sharda Jain in the afternoon. It can safely be presumed ....
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.... strong pointer towards the guilt of Sharda Jain. 228. Last Seen Evidence: The next three circumstances used by the learned Trial Judge to infer the guilt of accused Sharda Jain are predicated upon the fact that the deceased was last seen alive in the company of accused Sharda Jain. 229. It needs to seen by us that whether the evidence led by the prosecution to establish that the deceased was last seen alive in the company of accused Sharda Jain is creditworthy or not. If yes, what is the effect thereof? 230. To establish the fact that the deceased was last seen alive in the company of accused Sharda Jain, the prosecution examined Sumitra Gupta PW-18, Prabhu Yadav PW-17, Om Parkash Chauhan PW-11 and Manish Gupta PW-14. 231. As already noted in foregoing paras, the evidence of Sumitra Gupta PW-18, the wife of the deceased, that the deceased told her that he would be going to the residence of Sharda Jain at the time of leaving his residence in the morning of 24.08.2002 has not been controverted by the defence and the evidence of Prabhu Yadav PW-17, the driver of Sharda Jain, that he dropped the deceased at the residence of Sharda Jain in the morning of 24.08.2002. Likewis....
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....nd in what circumstances the victim suffered the death or should own he liability for the homicide. (Emphasis Supplied) 235. A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu v. State of Maharashtra AIR 2003 SC 3131. 236. The reasonableness of the explanation offered by the accused as to how and when he parted company with the deceased also has a bearing on the effect of last seen in a case. In the decision reported as State of Rajasthan v. Kashi Ram AIR 2007 SC 144 Supreme Court observed as under: It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his....
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....n from her at ISBT. Is the said explanation reasonable and satisfactory? The answer is an emphatic No. Sharda Jain has not stated about her movements after the deceased allegedly got down from her car. Sharda Jain denied having gone to vicinity of spot A on 24.08.2002 which claim has been found false by us. 239. In view of the aforesaid facts, the fact that the deceased was last seen alive in the company of Sharda Jain is highly determinative of the guilt of accused Sharda Jain. 240. The next circumstance used by the learned Trial Judge to infer the guilt of Sharda Jain is that Sharda Jain misled the family members of the deceased when they made enquiries from her about the whereabouts of the deceased. 241. As already noted in foregoing paras, Sumitra Gupta PW-18, the wife of the deceased, and Rajinder Pal Gupta PW-9, the younger brother of the deceased, deposed that Sharda Jain gave misleading and false answers to them when they made enquiries from her about the whereabouts of the deceased. 242. A comparable situation arose before Supreme Court in the decision reported as Mani Kumar Thapa v. State of Sikkim AIR 2002 SC 2920. In the said case, the accused person in whos....
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....on sought to establish through the testimony of Om Parkash Chauhan PW-11, the driver of Sharda Jain, that accused Raj Kumar along with accused Rajinder and Roshan Singh visited the residence of Sharda Jain on two occasions just few days prior to 24.08.2002 and that suspicious talks took place between Sharda Jain and Roshan Singh during the said visits. However, Om Parkash Chauhan did not support the case of the prosecution and denied that accused Raj Kumar was accompanied by accused Rajinder and Roshan Singh during his visits to the residence of the deceased or that he heard any talks between Sharda Jain and Roshan Singh. 248. Accused Raj Kumar is the brother of Sharda Jain. Being councilor of MCD, Sharda Jain was a public figure and therefore, number of people would have been visiting the office and residence of Sharda Jain to meet her. The visits in question could have been casual visits of a brother to meet and inquire about well being of his sister. The visits could also have been in connection with the public dealings of Sharda Jain. In such circumstances, the fact that accused Raj Kumar along with two unidentified persons visited the residence of Sharda Jain can hardly be ....
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....rm ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. 254. In the backdrop of aforesaid observations of the Supreme Court, when the afore-noted two depositions are read harmoniously, the so-called contradiction pointed out by learned senior counsel is clearly explainable. It is clear that when Shanti was told by the boy that Sharda Jain is calling her son, she perceived that Sharda Jain is present outside her house and has sent the boy inside her house to call her son and on basis of said perception formed by her, Shanti deposed that Sharda Jain came to her house. 255. A cumulative reading of the afore-noted uncontroverted evidence of Om Parkash PW-11 and Shanti PW-10, establishes that Sharda Jain tried to contact Om Parkash in the late hours of the night of 24.08.2002. The learned Trial Judge has not appreciated the evidence of Om Parkash and Shanti in correct perspective inasmuch as the conclusion drawn by hi....
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.... deceased, we do not consider it safe to place any reliance on the aforesaid uncorroborated evidence of Mahender Pal Gupta. 262. A close scrutiny of the evidence of Mahender Pal Gupta reveals that the same suffers from two serious infirmities. As per Mahender Pal Gupta, after getting elected as Municipal Councilor, Sharda Jain told him that she 'has' left her husband because of her liking for the deceased. The election in question was held in July 2002 (The said fact was deposed to by Mahender Pal Gupta). The husband of Sharda Jain left her in the year 2000 as evident from the reading of the contents of the DD entries Ex.PW-28/A and Ex.PW-7/A. Therefore, the deposition of Mahender Pal Gupta that Sharda Jain told him that she left her husband in the year 2002 is incorrect. The second infirmity is that Mahender Pal Gupta in his examination-in-chief deposed that Sharda Jain told him that she tried to commit suicide on account of the fact that the deceased was getting close to Memwati Berwala however, in cross-examination he stated that he does not recollect that whether any such fact was told to him by Sharda Jain. That apart, deposition of PW-19 and PW-24, noted in para 93....
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....at Sharda Jain attempted to commit suicide. Nothing turns on the said fact inasmuch as no evidence is forthcoming on record to show that Sharda Jain attempted to commit suicide on account of failed relationship with the deceased. On the contrary, the evidence, noted in paras 93 to 95 above show that she attempted suicide in the year 2000 when Memwati Barwala was not even in the scene. 270. The last piece of evidence relied upon by the prosecution to prove the motive of Sharda Jain is the photograph Ex.PW-58/A which shows the deceased and Memwati Berwala standing close to each other in a public function. (It may be noted here that the function in question is not the function mentioned by Mahender Pal Gupta in his testimony) By no stretch of imagination, it can be inferred from the mere circumstance that the deceased and Memwati Berwala were standing close to each other that the deceased and Memwati Berwala were having intimate relations. 271. The net result of the above discussion is that the prosecution has not been able to prove the motive of Sharda Jain to commit the murder of the deceased. The prosecution has failed to establish that the deceased was having intimate relati....
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....abad when they were last seen together. The place where the dead body of the deceased was found was a canal flowing from village Chajjupur which is about 20 kms away from Ghaziabad. The spot where the deceased was killed is spot A which was not in the knowledge of the police and its whereabouts surfaced only after Sharda Jain made her disclosure statement. The spot is near the embankment of the canal in which, further downstream the dead body of the deceased was discovered. Sharda Jain tried to mislead the family members of the deceased and had tried to surreptitiously contact her driver in the night with the obvious intention to pressurize him to withhold truth from the police. Said evidence is sufficient wherefrom the guilt of Sharda Jain can be inferred. Assuming that the deceased was not killed at spot A. Removing the said evidence, the chain of circumstances are still complete wherefrom an inference of guilt can be drawn against Sharda Jain. In the decision reported as 2002 (6) SCC 715 Mohibur Rahman and Anr. v. State of Assam, the deceased named Rahul was last seen on 24.1.1991 at 5:00 PM at a bus stand in the company of Taijuddin and Mohibur Rahman and his body was found 13 ....
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....j Kumar to the residence of Sharda Jain: The first circumstance used by the learned Trial Judge to infer the guilt of accused Raj Kumar is that he along with two other persons visited the residence of Sharda Jain on two occasions just few days prior to 24.08.2002. 278. We have already discussed in paras 246 to 248 above that there is nothing incriminating in the conduct of accused Raj Kumar in visiting the residence of Sharda Jain along with two other persons just few days prior to 24.08.2002. 279. Location of residence of accused Raj Kumar: The next circumstance used by the learned Trial Judge to convict accused Raj Kumar is that he is a resident of village Gulawati which is situated in the vicinity of village Chajjupur where the murder of the deceased was committed. 280. Merely because Raj Kumar was residing at a place which was situated in the vicinity of the place of the murder of the deceased can hardly be used as an incriminating circumstance against him. It could well be a coincidence that there was close proximity between the place of residence of accused Raj Kumar and place of the murder of the deceased. The view taken by the learned Trial Judge that it cannot be ....
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....l characteristics as soil found at spot A. But, in the case of Raj Kumar, no assurance is coming from the evidence on record that he did point out spot A to the police. There is no evidence to show that spot A was known to accused Raj Kumar before it was pointed out to police. It is also relevant to note that HC Sunita PW-31, who was part of the police party which conducted investigation at spot A on 28.08.2002 deposed that (Quote) 'In my presence, accused Raj Kumar had not pointed out any place in village Chajjupur.' In view of aforesaid deposition of HC Sunita PW-31, the possibility that Sharda Jain pointed out spot A to police and pursuant to that accused Raj Kumar was made to point spot A by the police cannot be ruled out. Therefore, accused Raj Kumar is entitled to benefit of doubt on said point. 287. Discovery of clues from the disclosure statement of Raj Kumar: - The next circumstance used by the learned Trial Judge to infer the guilt of accused Raj Kumar is that the disclosure statement of accused Raj Kumar provided clues to the investigating agency. 288. The complicity of accused Pushpender and Nirvikar in the conspiracy to murder the deceased came to the kno....
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.... words it was held that a fact discovered has to relate to an object recovered i.e. the recovery of an object and the discovery of a fact go hand in hand. 292. In view of aforesaid dictum of Supreme Court, the circumstance that investigating agency got lead from the disclosure statement of accused Raj Kumar cannot be used against him. 293. Recovery of wrist watch of the deceased at the instance of accused Raj Kumar: - The last circumstance used by the learned Trial Judge to infer the guilt of accused Raj Kumar is that the wrist watch of the deceased was recovered at his instance. 294. It may be noted here that the watch recovered at the instance of the deceased was not an ordinary watch. The watch was of make Citizen and was having a gold chain. 295. Before proceeding to analyze the evidence pertaining to recovery of the wrist watch of the deceased, we note the following pertinent observations made by Lahore High Court in the decision reported as Shera v. Emperor AIR 1943 Null 5: ... When the evidence of recovery of stolen property is attacked, the Court has to examine the evidence in the light of following alternative hypothesis: (1) The complainant might have....
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....of his death recovered from an accused person and utilized it in inventing a recovery from another accused person. (iv) Article in question might have been recovered from a third party and used by the police in one of the impugned recoveries. 297. The ground of attack taken in the instant case to assail the purported recovery of the watch of the deceased at the instance of the deceased is ground No. (ii) namely, the police might has procured a watch similar to the watch possessed by the deceased at the time of his death and has planted the same on accused Raj Kumar. The said attack is predicated upon the testimony of Mahender Pal Gupta PW-8, the photographs Ex.DX and Ex.DX1 of the body of the deceased taken at the time of its recovery and the manner of conduct of Test Identification of the watch purportedly recovered at the instance of accused Raj Kumar. 298. On a first blush, the evidence of Mahender Pal Gupta PW-8, a friend of the deceased, that a wrist watch was present on the body of the deceased at the time of its recovery does strikes a discordant note with the case set up by the prosecution with regard to recovery of the wrist watch of the deceased. We therefo....
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....he deceased, which deposition is contrary to the recording contained in the post-mortem report Ex.PW-21/A of the deceased that six artificial teeth were found in the jaw of the deceased. The deposition of Rajinder Pal Gupta PW-9, the younger brother of the deceased, that artificial teeth were found in the jaw of the deceased at the time of the recovery of the body of the deceased corroborated the aforesaid recording contained in the post-mortem report of the deceased. 305. In these circumstances, no benefit can be defence from the afore-noted evidence of Mahender Pal Gupta particularly when the evidence pertaining to the date of deposit of the wrist watch in question in the Malkhana has gone unrebutted. 306. The photographs Ex.DX and Ex.DX1 have been minutely looked by us. Nothing much turns on the said photographs inasmuch as they merely show a mark around the area of the wrist of the deceased. The photographs in question do not establish the presence of a watch on the wrist of the deceased. 307. With regard to the manner of conduct of the Test Identification of the watch recovered at the instance of accused Raj Kumar, the learned senior counsel argued that the Test Ident....
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....earing the watch in question almost daily for about six years could have easily identified the watch. Nothing could be elicited from the cross-examination of the witness which could cast a doubt on the veracity of his testimony. 313. In view of above discussion, we hold that the prosecution has been able to establish that a watch was recovered at the instance of accused Raj Kumar and that the said watch belonged to the deceased. 314. The moot question which now merits consideration is, as to what turns on the fact that the wrist watch of the deceased was recovered at the instance of accused Raj Kumar. 315. The deceased was wearing the wrist watch recovered at the instance of accused Raj Kumar on 24.08.2002. Sumitra Gupta PW-18, categorically deposed to the said fact in her testimony. It is significant to note here that said fact was also stated by Sumitra Gupta in her statement Ex.PW-62/DB recorded by the police few hours after the missing of the deceased. 316. In the decision reported as Machi Singh v. State of Punjab AIR 1983 SC 957 one of the factor's which weighed with Supreme Court in coming to the conclusion that the witness in question was a truthful witness ....
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....gh was present with her and the deceased in her car on 24.08.2002. 322. It is settled law that a statement made by an accused in his examination under Section 313 Cr.P.C. cannot be used against the co-accused. 323. While dealing with Section 342 of the Code (corresponding to Section 313 of present Code) in the decision reported as Narayan Swami v. State of Maharashtra AIR 1968 SC 609 Supreme Court observed as under: We have adverted to the above circumstances, only for the purpose of holding that the learned Sessions Judge, in coming to the conclusion that the appellant is guilty, has placed considerable reliance on the evidence of Dilawar, given in the dacoity case and to his statement, made under Section 342 Cr.P.C., as co-accused, in the present trial. The legal position is quite clear, viz., that the evidence, given by Dilawar, in the dacoity case, cannot be used as evidence against the appellant, who had no opportunity to cross-examining Dilawar, in the said case; and the statements of Dilawar, as co-accused, made under Section 342 Cr.P.C., in the present trial, cannot be used against the appellant. We are not certainly inclined to accept the contention of the l....
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.... mobile phone in his house is not plausible. 328. As already noted herein above, Om Parkash Chauhan PW-11, deposed that accused Rajinder Singh was present in the house of Sharda Jain in the morning of 24.08.2002. That thereafter he traveled along with the deceased and accused Sharda Jain in the car of Sharda Jain for going to Firozshah Kotla ground. He further deposed that when he got down from the car of accused Sharda Jain on 24.08.2002 Sharda Jain told him that accused Rajinder Singh would drive the car in his absence and thereafter he saw accused Rajinder Singh driving the car of Sharda Jain. 329. The aforesaid testimony of Om Parkash Chauhan PW-11, was not seriously challenged on behalf of accused Rajinder Singh inasmuch as during the cross-examination a single suggestion was given to the witness that he was on leave on 24.08.2002, which suggestion was emphatically denied by the witness. No other suggestion/question was given/put to the witness. 330. In view of the fact that aforesaid testimony of Om Parkash Chauhan has not been seriously challenged by the defence and that Om Parkash Chauhan had no reason to give false evidence against accused Rajinder Singh, we hold ....
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....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 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....
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.... 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. 340. In this view of the matter, we hold that the fact that the deceased was last seen alive in the company of accused Rajinder Singh is determinative of the guilt of accused Rajinder Singh. 341. False defence taken by accused Rajinder Singh: The next circumstance used by the learned Trial Judge to infer the guilt of accused Rajinder Singh is that a false defence was taken by accused Rajinder Singh. 342. The defence taken by accused Rajinder Singh in his statement under Section 313 CrPC that he does not know Sharda Jain and has never visited her residence has already been found to be false. 343. It is settled law that a false defence taken by an accused can be taken as an additional link in the chain of circumstances against him. 344. In the decision reported as Swapan Patra and Ors. v. State of W.B. : (1999) 9 SCC 242 Supreme Court held as under: It is well settled that in a case of circumstantial evidence when the accused offers an explanation and that explanation is fou....
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....ed Rajinder Singh and Roshan Singh were known to each other or employment of accused Rajinder Singh with accused Roshan Singh. The only document on record showing the acquaintance of accused Rajinder Singh with accused Roshan Singh is the disclosure statement of accused Rajinder Singh, contents of which document are completely inadmissible in evidence. 348. But we find yet another circumstance which points towards the culpability of accused Rajinder Singh. The same has escaped the notice of the learned Trial Court. 349. It has already been held by us that accused Rajinder Singh was driving the car of Sharda Jain in the afternoon of 24.08.2002 and that the deceased and accused Sharda Jain were present in the said car at that time. It has further been held by us that spot A is the place of murder of the deceased and that Sharda Jain was present at/around spot A on 24.08.2002. Accused Sharda Jain reached at/around spot A by her car which is evident from the fact that mud found stuck on the tyre of car of Sharda Jain has similar physical characteristics as soil found at spot A. The date of death of the deceased is 24.08.2002. The car of Sharda Jain was found by the police at the ....
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....tate of Maharashtra AIR 1964 SC 1622. 355. It is no doubt true that the underlying object behind Section 313 Cr.P.C. is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provision in Section 313, therefore, makes it obligatory on the court to question the accused on the evidence and circumstances appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the court to question the accused on any incriminating circumstance appearing against him the same cannot ipso facto vitiate the trial unless it is shown that ....
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....t that a wireless message was flashed to all SSPs and SHOs in India to trace him was put to him. The second question is question No. 43 in which the fact that Inspector V.S. Meena obtained non-bailable warrants against him as he was evading arrest was put to him. The third question is question No. 50 in which the fact that Inspector V.S. Meena sought initiation of proceedings under Section 82-83 Cr.P.C. against him as he was evading arrest was put to him. The response of accused Roshan Singh to the aforesaid questions was ignorance. Therefore, it is not the case that accused was completely unaware of the fact that the prosecution would be using his abscondence as an incriminating circumstance against him. 360. Accused Roshan Singh has not controverted the testimonies of the witnesses examined by the prosecution to establish his abscondence. He made a bald explanation of all the incriminating circumstances put to him, and had no explanation to offer. 361. In such circumstances, keeping in view the afore-noted observations of Supreme Court in Kashi Ram's case (supra) it has to be held that no prejudice has been caused to accused Roshan Singh on account of the fact that the ....
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....the gold ring of the deceased at the instance of accused Roshan Singh: The last circumstance used by the learned Trial Judge to infer the guilt of accused Roshan Singh is that two country made pistols and the gold ring of the deceased were recovered at the instance of accused Roshan Singh. 371. Insofar as recovery of country made pistols is concerned, suffice would it be to state that it is settled legal position that the connection between the object recovered and the offence with which an offence is charged must always be established by evidence 'alinude'. In the instant case, there is no evidence to show that the pistols recovered at the instance of accused Roshan Singh were used to murder the declassed . Therefore, the circumstance pertaining to recovery of country made pistols at the instance of accused Roshan Singh cannot be used as an incriminating piece of evidence against accused Roshan Singh. 372. Insofar as the recovery of the gold ring of the deceased is concerned, the ground of attack taken by the defence to assail the said recovery is that the family members of the deceased falsely stated that the ring in question was worn by the deceased on 24.08.2002 a....
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.... of the deceased was thrown into the canal by accused Roshan Singh. 378. A perusal of the testimony of Subash PW-38, contents whereof has been noted in para 98 above, shows that Subash was an 'inimical witness' evident from the accused Roshan Singh defeated the father of the witness in an election and that Subash was a signatory to a complaint lodged against accused Roshan Singh. 379. Inimical witnesses are not necessarily false witnesses though the fact that said witnesses have personal interest or stake in the matter must put the Court on its guard and thus the evidence of such witnesses must be subjected to close scrutiny. (See the decision of Supreme Court reported as Chander Mohan Tiwari v. State of MP AIR 1992 SC 891. 380. A close scrutiny of evidence of Subash PW-38 reveals that he is not a truthful witness. He claims that through the newspaper reports, after three or four days of the dead body of Atma Ram Gupta being recovered he realized that the dead body of which he had informed Roshan Singh was that of Atma Ram Gupta. How could he do so remains a mystery for the reason Subash does not claim that he saw the dead body about which the children of the villa....
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....d that the discovery ought to be of a fact which is directly connected with the crime apart from the statement itself. 387. The second decision is State v. Wahid Bux: AIR 1953 All 314 wherein it was observed as under: Further the articles recovered were of a very ordinary type. For instance, from Waliid Bux a Dua, a Jugnu and a patta were recovered. From Dori completely torn coat and a dhoti were recovered. From Chandu a lota, a tumbler, a longe were recovered. Nothing was recovered from the other respondents. These articles were of ordinary kind and could be found with anybody in the village and the witnesses did not point out any special features or marks of identification on them. They were not able to say to whom the articles belonged. In this view of the matter the learned Sessions Judge did not draw any inference from the fact that these articles were recovered from the possession of the aforesaid respondents. We are of opinion that the learned Sessions Judge was right in rejecting the testimony relating to the recovery of the articles. 388. The third decision is Shera v. Emperor AIR 1943 Null 5 relevant portion whereof has already been noted in para 295 above.....
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....he year 1995. Why would the deceased be carrying an I-card pertaining to a membership which has long expired in his pocket? 396. Ram Chander PW-20, a witness to the recovery of I-card pertaining to accused Pushpender deposed that no I-card was found in the possession of accused Pushpender at the time when he conducted a primary search of accused at the time of his arrest. Where did the I-card materialize from if the same was not found in the primary search? 397. The above two unanswered questions seriously vitiates the case set up by the prosecution with regard to the recovery of I-card of the deceased at the instance of accused Pushpender. 398. With regard to accused Nirvikar, it is most relevant to note that the disclosure statement of Nirvikar does not contain a word about the I-card of the deceased. 399. In this regards, it is most relevant to note following observations of Supreme Court in the decision reported as Pohalaya Motya Valvi v. State of Maharashtra AIR 1979 SC 1949: The High Court uses the pronoun 'I' at two places. We, with the assistance of both the learned Counsel proficient in Marathi language read the original statement. The reading ....
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....er footing than the accused before Supreme Court in Pohalaya's case (supra). The disclosure statement of Nirvikar does not contains a word about I-card of the deceased, much less a recording pertaining to authorship of the concealment of the said I-card. 401. In such circumstances, we reject the evidence pertaining to the recovery of the I-cards of the deceased. 402. Unemployment of accused Pushpender and Nirvikar: The next circumstance relied upon by the learned Trial Judge to infer the guilt of accused Pushpender and Nirvikar was that they were unemployed. Merely because accused Pushpender and Nirvikar were unemployed does not mean that they participated in the conspiracy to murder the deceased. 403. Pointing out of place of murder of the deceased by accused Pushpender and Nirvikar: The next circumstance used by the learned Trial Judge to infer the guilt of accused Pushpender and Nirvikar is that they pointed out the place of murder of the deceased. Nothing turns on the same as the said place was already in the knowledge of the police. 404. Discovery of clues from the disclosure statement of Pushpender and Nirvikar: - The next circumstance used by the learned Tria....