* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11th March, 2011
Date of Decision: 2nd May, 2011
+ CRL. A. 09/1998
PRADEEP @ SANJAY & ANR. ...APPELLANTS Through: Mr. K.K. Sud, Senior Advocate with Mr. Rajesh Mahajan, Advocate
STATE (NCT OF DELHI) ...RESPONDENT Through: Mr. Lovkesh Sawhney, APP for the State.
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported
in the Digest? Yes
G.P. MITTAL, J.
1. This appeal is directed against the judgment dated 26.11.1997 and the order on sentence dated 28.11.1997, whereby the Appellants Pradeep and Dinesh were convicted for the offence punishable under Section 302 and 201 read with Section 34 of the Indian Penal Code („IPC‟). They were sentenced to undergo imprisonment for life and to pay fine of `500/- each under Section 302/34 IPC. In default of payment of fine, the Appellants were sentenced to undergo further rigorous Imprisonment for one month. They were further sentenced to undergo rigorous Imprisonment for one year and to pay fine of `500/- each under Section 201/34 IPC. In default of payment of fine, the Appellants were sentenced to undergo further Simple Imprisonment for one month.
2. The facts of the case can be extracted from para 1 to 4 of the impugned judgment. These are :-
Crl.A.09/1998 Page 1 of 45 "1. Sudhir Goel (now deceased) was residing alongwith his father Bhagwan Dass at H.No.BE-153, Hari Nagar on or prior to 4.3.94. He was studying in 9 th class, Section D, Navyug Vidhayala, Sarojini Nagar, Rajnish, Avinash, Arun, Jitender were also studying at the said school. Rajnish and Avinash were class-fellows of Sudhir Goel (now deceased). On 4.3.94, Sudhir Goel had gone to his school at about 1 P.M. He was wearing school uniform at that time. He was to take his annual exam of Hindi paper from 2 to 4 P.M. on 4.3.94. The prosecution case is that Sudhir Goel (now deceased) had appeared for his Hindi paper on 4.3.94 between 2 to 4 P.M. Sudhir Goel had not returned to his house thereafter. When Sudhir Goel did not return to his house, Bhagwan Dass, father of Sudhir Goel made
telephone calls at the residence of his call fellows and searched for his son. Thereafter when Bhagwan Dass and his relations failed to trace Sudhir Goel, he got lodged the missing report about his son with the PCR. At 9.45 P.M. ASI Tek Ram on duty at PCR received this information from PW-2 and he passed on this information to P.S. Hari Nagar. DD No.64B was recorded at PS Hari Nagar to this effect. The copy of DD no.64B was sent to PS Kirti Nagar. On receipt of DD no.64B, DD no.19A was recorded at PS Kirti Nagar. DD No.64B and 19A were handed over to ASI R.K. Tiwari for investigation. On receipt of these DD entries, ASI R.K.Tiwari reached at the house of Bhagwan Dass at Hari Nagar and made enquiries regarding the missing of Sudhir. On 6.3.94, he made his endorsement over DD no.19A and got the present case registered u/s 365 IPC at PS Kirti Nagar. On the basis of the
endorsement of ASI R.K.Tiwari, the formal FIR at
srl.no.74/94 was registered at PS Kirti Nagar. Special report was sent by the Duty officer to the Ld.M.M. and the other higher police officers. During the investigation of the case, ASI R.K.Tiwari went to Varanasi in search of one Balbir Singh, an employee of Bhagwan Dass. No clue could be found about Sudhir Goel from the interrogation of Balbir Singh. The photographs of Sudhir Goel were got published in the newspaper and on T.V. During
investigation by ASI R.K.Tiwari, he visited Navyug School and recorded the statement of Sh. P.S.Rana, the Principal of the school. He also interrogated the class mates of Sudhir Goel. On 27.3.94, he visited the house of Rajnish at Naraina Vihar and recorded his statement u/s. 161 Cr.P.C. On the basis of the statement of Rajnish, ASI R.K.Tiwari suspected about the involvement of both the accused persons. He went at their house but the accused persons were not there. On 28.3.94, the accused persons were produced in the police station but complainant Bhagwan
Crl.A.09/1998 Page 2 of 45 Dass got them released. The investigation of this case thereafter, was taken over by the SHO from ASI
2. Further case of the prosecution is that on 5.4.94, both the accused persons were produced by Om Parkash Garg before Bhagwan Dass and Raj Kumar who were
present at their house. Om Parkash Garg told them that both the accused persons had confessed about the murder of Sudhir Goel and they want to help to get recover the dead body of Sudhir Goel. Both the accused persons confessed their guilt before Bhagwan Dass and Raj Kumar. At this time, Raj Kumar reached at PS Kirti Nagar. The investigation of this case was handed over to SI Om Parkash. SI Om Parkash alongwith Raj Kumar Goel
reached at the house of Bhagwan Dass alongwith ASI R.K.Tiwari and Ct. Raj Kumar. He interrogated the
accused persons there. He also interrogated Om Parkash Garg and recorded his statement u/s 161 Cr.P.C. The accused persons were arrested and their personal search memos were conducted. Thereafter, they were brought at PS Kirti Nagar. The accused persons were again
interrogated separately at PS Kirti Nagar. One Rajinder Singh @ Shilpi who had come at the P.S. to lodge his report for the loss of his driving licence was joined in the investigation. The disclosure statements of both the accused persons were recorded. Both the accused persons thereafter, in pursuance of their disclosure statements, led the police party including Raj Kumar and Bhagwan Dass and Rajinder Singh at Upper Ridge Road. At the crossing of Simen Boleward, the accused Pradeep pointed out the place where they had thrown the deadbody of the deceased Sudhir Goel. The pointing out memo was prepared. The further disclosure statement of the accused Pradeep was recorded wherein he had disclosed to have visited the place of incident after two or four days and to have removed the deadbody from that place inside the bushes at some distance. The pointing out memo to that place was also prepared. Similarly, the accused Dinesh also led the police party to the said place and the necessary memos were got prepared. SI Om Parkash summoned the SHO,
photographer, crime team at the spot. Insp. Sadool Singh from the Crime Team submitted his report. Ct. Satbir, the official photographer took 10 photographs of the articles lying at the spot from different angles. The private photographer Puneet Sahni taken by the complainant party took 9 photographs from different angles. The burnt pieces of Pant, one belt having monogram attached with the belt of the school were seized by the I.O. at the spot. The pant seized at the spot found bearing the label of tailor
Crl.A.09/1998 Page 3 of 45 "KHURANA, BE-115, HARI NAGAR, N.DELHI". The
burnt pieces of pant were stained with blood. The pant and the monogram of the belt were identified by Bhagwan Dass and Raj Kumar. The IO also seized one burnt sweater (blood stained), one piece of vest stitched to the sweater, bunch of hairs stained with blood, pairs of shoes of white colour, one silver ring bearing the mark of SKG, one lower jaw, one burnt piece of shirt containing two buttons, one bone of back portion from the spot. One driving licence containing the photo of Pradeep and his name was also recovered from the bushes. The I.O. also lifted blood stained earth, blood control, earth, (pebbles) from the spot. All these articles were put in pullandas and 13 pullandas were prepared and seized vide the necessary seizure memo. The I.O. conducted the inquest proceedings on the skeleton and recorded the statements of the witnesses in this context. He prepared the brief facts and wrote an application for conducting the postmortem. The postmortem on the
skeleton and the other body parts recovered from the spot was conducted by Dr. L.K.Barwa on 6.4.94. He prepared the postmortem report and opined that the lenier cut mark on the outer table of the skull was caused by a sharp object/weapon. Death was opined to be homicidal in nature. Time since death was opined to be about one month.
3. Further case of the prosecution is that the both accused persons had pointed out the places from where they had kidnapped the deceased. The I.O. prepared the site plan of the said place. The accused persons led the police party to Gandha Nala to get recover the knife and the school bag but the same could not be recovered. Again both the accused persons were interrogated at the police station and their further disclosure statements regarding the recovery of knife and bag were recorded. On 7.4.94, both the accused persons got recovered clothes which they were allegedly wearing at the time of commission of the offence from their houses. The necessary memos to that effect were prepared by the I.O. One scooter no. DDA-5783 found standing on the ground floor of the house of the accused persons allegedly used in carrying away the deceased from the place of kidnapping was also seized by the I.O. vide seizure memo. On 7.4.94, both the accused persons were got medically examined at DDU hospital. Their sample hairs were also taken there. Further case of the prosecution is that thereafter, both the accused persons led the police party to Swaran Park, Nangloi. The accused Pradeep got recovered knife from the bushes there. The knife was measured and its sketch was prepared by the I.O. The same was seized vide seizure memo after sealing the
Crl.A.09/1998 Page 4 of 45 same with the seal of „YSY‟. The accused Dinesh got recovered one school bag from the drain under railway line from nearby place. The school bag was contained books, exercise books and other articles. These were identified by Raj Kumar. The I.O. prepared the pullandas of the articles containing the bag and that of the bag and seized the same vide seizure memo. On return to the police station, the IO deposited the case property at the malkhana of PS Kirti Nagar.
4. During the investigation of this case, the I.O. recorded the statement of Gurminder Singh, tailor at BE- 115, Hari Nagar. Counter foil of cash memo, sample piece of cloth and sample of lable produced by him were seized vide seizure memo. The tailor Gurminder Singh of Khurana Tailor informed the police that he had been stitching the clothes of deceased Sudhir Goel. The I.O. also got prepared the scaled map from Insp. Devinder Singh on 15.4.94. The I.O. collected the postmortem report. On 20.4.94, Bhagwan Dass handed over to the I.O., two photographs of the deceased which were seized vide seizure memo. During the investigation, the I.O. got sent the sealed pullandas of this case to CFSL and thereafter, collected the CFSL reports. On 3.5.94, complainant Bhagwan Dass
produced one old shirt and one sweater (pullover) of the deceased which were seized by the I.O. During
investigation verification was made about the ownership of two wheeler scooter from the Transport Authority and the same was found to be registered in the name of accused Pradeep. During investigation, the I.O. recorded the statement of Vipin Garg, who had gifted one silver ring bearing initial „SKG‟ to the deceased Sudhir on his birthday. During investigation, the I.O. had recorded the statement of the concerned witnesses at different stages of the investigation. After completion of the investigation, Chillan against both the accused persons was filed by the I.O. in the court of Ld. M.M."
3. On the Appellants‟ pleading not guilty to the charge, the prosecution examined 33 witnesses to prove its case.
4. PW-1 Raj Kumar, PW-2 Bhagwan Dass and PW-28 Om Parkash Garg deposed about extra judicial confessions of the Appellants initially before Om Parkash Garg and later to PWs 1 and 2.
5. PW-1 Raj Kumar, PW-2 Bhagwan Dass and PW-18 Rajinder Singh @ Shilpi deposed about the making of confessional-cum-disclosure statement Ex.PW-1A by Appellant Pradeep and Ex.PW-1/B by Appellant Dinesh.
Crl.A.09/1998 Page 5 of 45 They further testified about the recovery of the skull, skeleton and some other bones, purported to be of deceased Sudhir from the Jungle; recovery of partly burnt shirt, partly burnt pant alongwith badge of Navvug Vidhayala, Sarojni Nagar, one silver ring belonging to the deceased and one driving licence (Ex.P-10) belonging to Appellant Pradeep was also made.
6. PW-6 Rajnish and PW-26 Avinash Goel were the classmates of deceased Sudhir at the time of occurrence. They testified about the inquiry by the Appellants, about Sudhir on 04.03.1994 just after the deceased‟s Hindi examination was over. They also deposed about the Appellants following the bus, in which deceased Sudhir and his other classmates were travelling. PW-26 further testified to the fact of deceased alighting from the bus at Mayapuri Chowk.
7. PW-8 Dr. L.K. Barua performed autopsy on the skeleton claimed to be of deceased Sudhir. He deposed that on 07.09.1994 at about 11:00 A.M. he had conducted postmortem examination on the dead body of a male (Sudhir), aged about 15 years. The body was sent by SI Om Prakash, PS Kirti Nagar with the history of assault. From the Skeleton, the height of the deceased was opined to be 155 cms. According to PW-8 the Pelvis showed male characteristic features. The autopsy surgeon further found the lenier cut mark on the outer table of the skull to be caused by a sharp object. He opined that a sharp weapon was used on the skull and on the body of the deceased and the death was homicidal in nature. The time since death was opined to be about one month.
8. PW-17 Dr. Ikramul Haque had analyzed the similarities and dis- similarities between the skull with mandible vis-à-vis two photographs of deceased Sudhir. He deposed that he had tried the skull alongwith the mandible as well as photographs of the deceased on still photography as well as video superimposition besides comparing the life size photographs of the deceased and the skull geometrically. He arrived at the conclusion that the skull with the mandible in question could have been the skull and mandible of the deceased as per the photographs Ex.P-26 and Ex.P-27.
Crl.A.09/1998 Page 6 of 45 given by the IO. He deposed that as regards the blood grouping results in general, blood could not be detected but some of the clothes remanents suggested that there was some blood which could have been of human origin, „B‟ group. He proved his report Ex.PW-17/A.
9. PW-29 Vipin Garg is the maternal uncle (mother‟s brother) of the deceased. He deposed that on 15.01.1992 on the birthday of the deceased, he had gifted a silver ring inscribed with the initial „SKG‟. He identified the said ring as Ex.P-9 (which according to the prosecution was recovered from the spot i.e. Jungle on Upper Ridge Road).
10. PW-31 Inspector Sadool Singh, In charge of the Crime Team was summoned at the spot at the time of recovery of the skeleton etc. He inspected the scene of the crime at the instance of SI Om Prakash and gave his report Ex.PW-31/A.
11. PW-30 ASI R.K. Tiwari was the first Investigating Officer (First IO). PW-33 Inspector Om Prakash was the second IO and PW-34 Inspector Yashwant Singh was the third IO of the case.
12. PW-30 ASI R.K. Tiwari carried out the initial investigation. On the basis of the DD entry regarding disappearance of deceased Sudhir, PW-30 met Bhagwan Dass (PW-2). When no clue could be found about disappearance of Sudhir, a case under Section 365 IPC was registered on 06.03.1994 bearing FIR No.74/1994. PW-30 got published the photographs of Sudhir in the newspaper and on the TV. On 11.03.1994 he also visited Navyug School, Sarojni Nagar where Sudhir used to study and he recorded the statement of the Principal of the School. He interrogated the school mates of Sudhir and recorded the statement of Rajnish, (Sudhir‟s friend) on 27.03.1994 and came to know that the Appellants were searching for the deceased on 04.03.1994. PW-30 was also informed by Rajnish that the Appellants had followed the school bus in which Sudhir, he and other boys were travelling. He did not get any satisfactory explanation from the Appellants and therefore on 29.03.1994 he moved an application to the Director, CFSL. He deposed that the CFSL had fixed 13-14.04.1994 as the date for the lie detector test on the Appellants. When
Crl.A.09/1998 Page 7 of 45 cross-examined, the witness denied the suggestion that the statement of Rajnish was not recorded by him on 27.03.1994.
13. PW-33 Inspector Om Prakash was assigned the investigation when PW-1 Raj Kumar visited Police Station Kirti Nagar and gave information about the extra judicial confession made by the Appellants. This witness testified that he accompanied Raj Kumar (PW-1) to the house of Bhagwan Dass (PW-2). He met the Appellants who made a clean breast of their guilt. They were arrested and brought to the Police Station.
14. PW-33 further deposed that one public witness Rajinder Singh @ Shilpi (PW-18) met him in the Police Station and was joined in the investigation of the case. On their further interrogation done separately they made disclosure statements Ex.PW-1/A (by Pradeep) and Ex.PW-1/B (by Dinesh). Thereafter, the Appellants led the police party including PWs Rajinder Singh, Raj Kumar, Bhagwan Dass and police officials to the crossing of Simon Bolivar at Upper Ridge Road. Appellant Pradeep pointed out the place where they had thrown the dead body of Sudhir. A further disclosure statement Ex.PW-1/C of Appellant Pradeep was also recorded. Appellant Pradeep pointed out the place where the dead body was pushed after 3-4 days of the occurrence in the inner side of the Jungle. PW-33 also deposed about the pointing out of the aforesaid two places by Appellant Dinesh. The scene where the skeleton/bones and the articles belonging to the deceased were lying was photographed by Constable Satvir Singh and a private photographer engaged by the complainant. The photographs were proved as Ex.PW-25/1 to 9 and PW-23/A-1 to A-9. The witness then deposed about the recovery of burnt blood stained pant, sweater, one piece of vest sticking to the sweater, bunch of hairs stained with blood, a pair of PT shoes of white colour, one silver ring mark „SKG‟ from the ashes of the burnt body, one lower jaw, one burnt piece of shirt containing two buttons and one driving licence belonging to the Appellant Pradeep and bearing his photograph. He seized these articles and converted the same into separate pullandas and sealed them (except the driving licence). He then deposed about taking the pullandas of the body
Crl.A.09/1998 Page 8 of 45 parts along with inquest papers to the autopsy surgeon (Dr. L.K. Barua) at the Mortuary, Subzi Mandi.
15. PW-34 Inspector Yashwant Singh, the then SHO of Police Station Kirti Nagar, deposed that the investigation of the case was taken over by him on 07.04.1994. He deposed about the recovery of the knife at the instance of Appellant Pradeep and recovery of school bag at the instance of Appellant Dinesh (which have been disbelieved by the Trial Court).
16. On close of the prosecution evidence, the Appellants were examined under Section 313 Cr.P.C. to enable them to explain the incriminating evidence appearing against them. They stated that they had been falsely implicated in this case. Their defence was that PW-1 Raj Kumar had an evil eye on their factory and therefore they were falsely implicated in this case. They neither made a disclosure statement nor any recovery was effected at their instance. Appellant Pradeep claimed that he was called from his factory on 06.04.1994 whereas Appellant Dinesh was called from his house. They preferred not to produce any defence evidence.
17. We have heard Mr. K.K. Sud, learned Senior Counsel assisted by Mr. Rajesh Mahajan Advocate on behalf of the Appellants and Mr. Lovkesh Sawhney, learned Additional Public Prosecutor (APP) for the State.
18. Mr. K.K. Sud argued that during trial, prosecution relied on nine circumstances to connect the Appellants with the crime which are mentioned in para 16 of the impugned judgment. The same are extracted hereunder:-
"16. Having said so, I now proceed to examine the
evidence and materials on record to find out if guilt of the accused persons is proved beyond reasonable doubt or not applying the law enunciated by the Apex Court of the country on circumstantial evidence. In the present case, the prosecution mainly relies upon the following
circumstances to seek conviction of the accused.
i) Homicidal death of deceased Sudhir;
ii) Motive of the accused persons;
iii) Last seen evidence;
iv) Disclosure statements and recovery of articles including deadbody;
Crl.A.09/1998 Page 9 of 45 v) Recovery of the driving licence;
vi) Recovery of weapon of offence i.e. knife; vii) Recovery of school bag;
viii) Extra Judicial Confession;
ix) Injuries on the person of the accused."
19. It is argued by Mr. K.K. Sud that recovery of school bag and weapon of offence have been disbelieved by the Trial Court, whereas injuries on the person of the Appellants were not found to have been connected to the alleged incident or alleged to have been sustained on 04.03.1994. It is pleaded that the circumstance of motive and death being homicidal are neutral. Rest of the circumstances relied upon by the prosecution have not been proved by any clinching evidence so as to draw an irresistible conclusion that it was the Appellants and the Appellants alone who had committed this crime and the circumstances established were not consistent with the innocence of the Appellants. Learned senior counsel places reliance on Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh, AIR 1952 SC 343; Sharad Birdhichand Sarda v. State of Maharashtra, (1984)4 SCC116; and Ashish Batham v. State of Madhya Pradesh, 2002 (7) SCC 317.
20. In Sharad Birdhichand Sarda (supra), the Supreme Court analyzed various judgments in cases resting on circumstantial evidence. In para 152 of the report, it was observed as under:-
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343. This case has been Uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of Maharashtra, AIR 1972 SC 656. It may be useful to extract what
Mahajan, J. has laid down in Hanumant's case (supra): It is well to remember that in cases where
the evidence is of a circumstantial nature,
the circumstances from which the
conclusion of guilt is to be drawn should in
Crl.A.09/1998 Page 10 of 45 the first instance be fully established, and all
the facts so established should be consistent
only with the hypothesis of the guilt of the
accused. Again, the circumstances should be
of a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not to
leave any reasonable ground for a
conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused."
21. It is argued by the learned APP that the Trial Court fell into error in disbelieving the recovery of the knife and school bag at the instance of Appellant Pradeep and Dinesh. It is submitted that there was mis- appreciation of evidence by the Trial Court when it recorded that SI Om Prakash could not have been present at the time of recovery of the school bag and knife as he had carried the pullandas containing remnants of the dead body to the mortuary. It is urged that the dead body was sent by SI Om Prakash through Constable Ram Prasad. The Trial Court dealt with the recovery of the knife and disbelieved the prosecution version in para 48 to 50 of the impugned judgment which are extracted hereunder:-
"48. After scrutinizing the evidence led by the
prosecution, I am of this view that the prosecution has failed to prove that the knife Ex. P11 was recovered at the instance of the accused persons or that knife Ex. P11 is the weapon of offence used in the commission of the offence. Admittedly the disclosure statements of both the accused persons were recorded earlier and the police had taken both the accused persons to the Ganda Nala in search of the knife. But no knife could be recovered at that time. It seems that to strengthen its case after the recovery of the deadbody and the articles at the spot, the recovery of knife has been shown to have been made at the instance of the accused persons. The testimony of the prosecution witnesses regarding the recovery of knife is contradictory. The disclosure statements Ex. PW1/H and PW1/J bear the signatures of both PW1 Raj Kumar and PW2 Bhagwan
Dass. Both these witnesses have not deposed that the accused persons had been taken earlier to Ganda Nala to get recover the knife. Both these witnesses have not
Crl.A.09/1998 Page 11 of 45 deposed that earlier both the accused persons had misled the police regarding the recovery of knife at Ganda Nala. The I.O. has failed to explain why the accused persons were not taken to the place of recovery immediately after the disclosure statements Ex. PW1/H and PW1/J. The recovery memo is stated to have been made on 07.04.1994. However, it does not bear the signatures of PW2 Bhagwan Dass. The police has failed to explain why the witnesses to the disclosure statements i.e. Bhagwan Dass and ASI Gyan Chand were not joined in the investigation on 07.04.1994, at the time of alleged recovery of knife. So much so both the accused persons were not taken to the place of recovery by SI Om Parkash who had recorded the disclosure
statements of accused persons in this context. Rather the seizure memo Ex. PW1/L of the knife has been shown to have been prepared by SHO Yashwant Singh and SI Om Parkash has been cited as a witness. This supports the arguments of the Ld. Defence Counsel that SI Om Parkash had not accompanied the police at the place of recovery on 07.04.1994 and he was present with the doctor who had conducted the postmortem. PW8 Dr. L. K. Barwa in his report Ex. PW-8/A has shown the presence of SI Om
Parkash with him at the time of conducting the postmortem on the remnants of the deadbody. The postmortem on the deadbody was conducted on 07.04.1994 at about 11:00 a.m. So the presence of SI Om Parkash with SHO
Yashwant Singh at the same time, at the time of recovery, of knife stands falsified. Similarly, recovery memo Ex. PW1/L does not bear the signature of ASI Gyan Chand. In his cross-examination ASI Gyan Chand has tried to explain that he was discharged on the way from DDU Hospital to the place of recovery by the SHO and was recalled at that place subsequently by flashing a wireless message and he reached there at the time when the sketch Ex. PW1/K was being prepared. No evidence to substantiate the version of this witness on this fact has been proved on record. There is nothing on record to show that ASI Gyan Chand was discharged from DDU Hospital and he was recalled at the spot by SHO. The presence of PW1 Raj Kumar at the spot also becomes doubtful as the sketch Ex. PW1/K does not bear his signature. No other independent witness from the police station or at the place of recovery was joined in the investigation by the police. The signature of ASI Gyan Chand on Ex. PW1/K does not inspire confidence. PW34 Inspector Yashwant Singh has admitted in the cross- examination that this fact regarding PW21 ASI Gyan Chand to have signed the sketch Ex. PW1/K has not been recorded in the case diary. The statement recorded u/s 161 Cr.P.C. of ASI Gyan Chand does not show that he had
Crl.A.09/1998 Page 12 of 45 signed the sketch Ex. PW1/K. All these facts create doubt about the presence of the witnesses at the time of the alleged recovery of knife at the instance of accused Pardeep.
49. Besides this, it has not been proved on record that this knife Ex. P11 was the same knife used in the
commission of the offence. No blood stains of the deceased were found on the knife Ex. P11. The hair allegedly found attached with the knife was not opined in the CFSL reports to be the hair belonging to the deceased. So mere recovery of the knife without connecting the same to the incident is of no use. In the authority reported in 1997 Criminal Law Journal page 1778, the Hon‟ble High Court of Bombay has held that if there is no proof that there is any mark of blood on the recovered weapon of offence (stick in this case), mere recovery cannot constitute incriminating piece of evidence against the accused. So in the absence of CFSL report showing any blood mark of the deceased or hair of the deceased on it, it cannot be said that the knife Ex. P11 was used in the commission of the offence.
50. Besides this, there are material contradictions regarding the knife Ex. P1 as deposed by the prosecution witnesses and as per the report of CFSL. The prosecution case is that the blade of the knife recovered from the spot was measuring 12 cm. In the CFSL report Ex. PW17/A the measurements of the knife (exhibited Bio/M) has been shown to be having blade of 15.5 cm. (approx.). The prosecution has failed to explain the material
contradiction. So I am of this view that the prosecution has failed to prove beyond the shadow of reasonable doubt that the knife Ex. P1 was used in the commission of the offence in this case or that it was recovered at the instance of the accused Pardeep".(emphasis supplied).
22. Similarly, the recovery of the school bag was dealt with in para 51 to 53 of the impugned judgment.
23. Of course, it was not stated by PW-8 Dr. L.K. Barua in his report Ex.PW- 8/A that the postmortem examination on the remnants was conducted in presence of SI Om Prakash but there is no ground to challenge the other reasons given by the Trial Court to disbelieve the recovery of the knife. The Trial Court has given several reasons to disbelieve the recovery. We see no reason not to take another view in the face of the contradictions and discrepancies as pointed out by the Trial Court.
Crl.A.09/1998 Page 13 of 45
24. Moreover, we are of the opinion that the making of subsequent disclosure statement Ex. PW-1/H by Appellant Pradeep and Ex.PW-1/J of Appellant Dinesh is suspect.
25. It appears that the police was unable to recover the knife and the school bag from the Ganda Nala in pursuance of the earlier disclosure statement Ex.PW-1/H and PW-1/J made by the Appellants and in order to strengthen its case, the prosecution persisted with the recovery of the knife and the school bag as a result of padding. Even otherwise, recovery of the knife does not in any way advance the case of the prosecution because the deceased‟s blood group was not found on it.
26. The finding regarding the injury on the person of Appellants not being connected to the incident is not challenged by the prosecution.
27. We shall be dealing with each of the other circumstances.
28. Testimony of PW-8 Dr. L.K. Barua and PW-17 Dr. Ikramul Haque and his report Ex.PW-17/A are relevant on this point. PW-8 simply opined that the skeleton could be of a male with a height of 155 cms. The time since death was given to be one month. Another finding of PW-8 is that some injury was caused on the skull by a sharp object and in view of the cut marks on the skull and cut marks on the clothes he had opined that some sharp object was used to cause injury on the skull and on the body of the deceased. This part of the finding is not of much relevance as there is no admissible evidence produced by the prosecution to reach a conclusion that the injuries were inflicted on the person of deceased Sudhir by the Appellants.
29. PW-17 Dr. Ikramul Haque, Senior Scientific Officer had conducted the superimposition test. He deposed that on 26.04.1994 to having received 17 sealed parcels out of which one contained a skull with mandible along with two photographs of the alleged deceased for the possible similarities / dis-similarities through superimposition technique. He had tried the skull as well as the photographs of the deceased along with the mandible on still
Crl.A.09/1998 Page 14 of 45 photography as well as video superimposition, besides comparing the life size photographs of the deceased and the skull geometrically. PW-17 opined that the skull with the mandible in question could have been the skull and the mandible of the deceased (on the basis of the photographs as supplied by the IO). Thus, Dr. Ikramul Haque had simply stated about the possibility of skeleton claimed to be recovered in pursuance of the disclosure statement of the Appellants to be that of the deceased. This by itself cannot lead us to draw a conclusion that the skeleton belonged to deceased Sudhir.
30. At the same time, according to the prosecution there is recovery of the other articles i.e. one belt having monogram „Navyug Vidhayala‟ alongwith the burnt pant piece Ex.P-1, burnt sweater Ex.P-2 and the silver ring Ex.P-9. We shall advert to and analyze the evidence in respect of the recovery of skeleton and all these articles a little later and the findings whether the skeleton and the articles recovered from the spot belonged to Sudhir shall largely depend on our conclusions on analyzing the evidence with respect to the alleged recovery from the Simon Bolivar at Upper Ridge Road crossing on the night intervening 05-06.04.1994.
LAST SEEN EVIDENCE
31. In fact, there is no evidence of last seen in this case and describing the alleged circumstance of the Appellants following the red line bus in which the deceased was travelling with the other boys as an evidence of last seen is a misnomer. This circumstance, even if established may just provide a link, that too of a weak nature that the Appellants may have kidnapped the deceased. Therefore, this circumstance by itself is not of much importance but may be of some value if some other circumstances of conclusive nature are established.
32. The prosecution mainly relies upon the testimony of PW-6 Rajnish, PW- 26 Avinash Goel, PW-7 P.S. Rana, Principal of Navyug Vidhayala and PW-30 ASI R.K. Tiwari. PW-6 Rajnish deposed that in March, 1994 he was a student of the 9th standard (Section D). Deceased Sudhir was his classmate. He also knew Appellants Dinesh and Pradeep who were the
Crl.A.09/1998 Page 15 of 45 cousins of deceased Sudhir. Dinesh was also a student of the same school and was studying in the 12th standard.
33. PW-6 testified that on 04.03.1994 after the exam (Hindi paper) was over at 4:00 P.M. he came out of the examination hall and noticed that deceased Sudhir was with Avinash and Arun. He stopped to drink water whereas the other three proceeded ahead. When he came out of the school, he found Dinesh and Pradeep standing by the side of a two wheeler scooter. They enquired about Sudhir. He informed them that Sudhir had gone to the bus stand. When he reached Naroji Nagar bus stand, he noticed them (i.e. Sudhir, Avinash and Arun) and he boarded the red line bus. From the back window, he noticed Pradeep and Dinesh following the red line bus on a two wheeler scooter. He got down at Naraina and found that the Appellants were still following the bus.
34. When cross-examined, the witness deposed that his statement was recorded by the police on 27.03.1994. He was confronted with his previous statement Ex.PW-6/DA on the aspect that he had not mentioned the name of Avinash as the person travelling in the bus. He was further confronted with his statement as he had not informed the IO that Avinash and Arun were with Sudhir at the time of drinking water. He deposed that when he received a telephone call from Sudhir‟s father he informed him that Sudhir was with him (PW-6) in the bus when he got down at Naraina. He denied the suggestion that he had informed Sudhir‟s father that he (the witness) did not know about Sudhir. He admitted that on 11.03.1994 the police had visited the school but did not make any enquiry from him or from any other boy in his presence.
35. Almost to the same effect is the testimony of PW-26 Avinash Goel except that Avinash had travelled beyond Mayapuri Chowk where Sudhir alighted from the bus. When cross examined he stated that during the assembly held between 04.03.1994 and 11.03.1994, the Principal of the School asked the students to inform about the whereabouts of Sudhir. He admitted that he did not intimate the Principal about Sudhir from 04.03.1994 to 11.03.1994 as he could not think about the incident
Crl.A.09/1998 Page 16 of 45 (Pradeep and Dinesh making enquiry about Sudhir and their following the bus). On 11.03.1994 ASI R.K. Tiwari met him in the school and enquired about his name and address. He was frank enough to admit that on 11.03.1994 he did not inform ASI R.K.Tiwari that the Appellants had followed their bus on a two wheeler scooter. He admitted that in the month of April (1994) he came to know that Sudhir had been kidnapped and murdered by the Appellants. He visited the house of Sudhir in the month of March and April, 1994 alongwith his friends. He also admitted that he did not tell about the Appellants following their bus on a two wheeler scooter to any person in the month of April or May, 1994. He deposed that his statement was recorded by the SHO in the month of June, 1994. He denied the suggestion that he had been falsely introduced as a witness at the instance of the complainant.
36. PW-7 Shri P.S. Rana, Principal of Navyug School apart from testifying that Sudhir was a student of 9th standard and Dinesh was a student of 12th standard in March, 1994 deposed that on 11.03.1994 the police did come to the school and record his statement. He announced in the assembly of the school that the students may inform him as to who had last seen Sudhir.
37. PW-30 ASI R.K.Tiwari apart from deposing on other aspects of the investigation testified that on 11.03.1994 he visited Navyug School, Sarojni Nagar where Sudhir used to study and met the Principal of the school and recorded his statement. He also interrogated the classmates of Sudhir, namely, Jitender Chaudhary, Arun and Avinash. On 27.03.1994, he went to the house of Rajnish at the instance of Bhagwan Dass and recorded his statement.
38. It is argued by the learned senior counsel for the Appellants that the prosecution has not collected any evidence that somebody had seen the Appellants taking Sudhir along with them on the pillion seat of the scooter and thus, it cannot be said that Sudhir was last seen alive in the company of the Appellants before he was found dead. It is pleaded that statement under Section 161 Cr.P.C. of PW-6 Rajnish is claimed to have been
Crl.A.09/1998 Page 17 of 45 recorded by ASI R.K.Tiwari on 27.03.1994 whereas statement of PW-26 Avinash Goel was recorded only in the month of June, 1994 much after the arrest of the Appellants.
39. It is pleaded that if any enquiry had been made by the Appellants from PW-6 after Hindi examination or had PW-6 and PW-26 seen the Appellants following the bus wherein Sudhir and they were travelling, this would have been disclosed by them either to the Principal or to the class in charge and definitely to PW-30 ASI R.K.Tiwari.
40. It is urged that the statement of PW-6 is shown to have been recorded by the police on 27.03.1994. But, in fact, the same must have been recorded after the police had decided to falsely implicate the Appellants. The learned senior counsel submits that the Court can go through the case diary for its own satisfaction. Since the case diary in this case did not contain Book number and Page number an adverse inference has to be drawn against the prosecution. The learned senior counsel places reliance on Surender Miglani v. State (Delhi Admn) & Ors. 1996 JCC 502 (Delhi); Om Prakash v. State, 1979 (16) DLT 281; and Chander Prakash @ Chander v. State (Delhi Admn.) 1995 (II) CCR 322.
41. We have perused the case diary in this case. It is true that the case diary does not contain Book number and Page number which is in violation of Rule 25.54 of the Punjab Police Rules. There is no gainsaying that the purpose of writing simultaneous case diary with the progress of the investigation from time to time is to have a check on an unscrupulous police officer and to have a fair investigation. A case diary remains in the custody of the IO/SHO/Public Prosecutor attending the case. It can also be seen by any senior police officer to satisfy himself if the investigation is properly conducted by the IO.
42. We have perused the authorities cited at the Bar. It has nowhere been laid down in any of the three reports referred above that whenever the case diary does not bear the printed book number and the page number an adverse inference has to be drawn against the prosecution. In Chander Prakash (supra) it had been found that certain papers of the case diary
Crl.A.09/1998 Page 18 of 45 were recorded with different ink on paper having different texture from the other papers of the case diary. It was under those peculiar circumstances that it was observed that the case diary had been recorded near about February 4, 1987 and is shown to have been recorded on January 26, 1987. In this case, the papers of the case diary are the same and thus, we are not inclined to draw any such inference. Moreover, it is well settled that lapse on the part of the investigating officer should not prevent the Court from accepting the eye witnesses‟ evidence, if it is otherwise truthful. (State of U.P. v. Sikandar Ali, (1998) 4 SCC 298; and State of Karnataka v. M.N.Ramdas, (2002) 7 SCC 639).
43. We fully agree with the submissions raised on behalf of the Appellants that it cannot be said that the deceased Sudhir was last seen in the company of the Appellants. In Bodh Raj @ Bodha & Ors. v. State of Jammu and Kashmir, (2002) 8 SCC 45, the Supreme Court held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being author of the crime becomes impossible. In Mohibur Rehman & Anr. v. State of Assam, (2002) 6 SCC 715, the Supreme Court observed thus:-
"10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be
something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide......."
44. We are not inclined to agree with the reasoning of the Trial Court that the testimony of PW-6 and PW-26 stands corroborated from the missing report, DD No.64-B Ex.PW-14/A recorded at PS Hari Nagar, where PW-2 Bhagwan Dass had mentioned that the deceased got down at Mayapuri
Crl.A.09/1998 Page 19 of 45 Chowk. It was a far-fetched conclusion arrived at by the Trial Court that this information must have been supplied to PW-2 Bhagwan Dass by his classmates who had boarded the bus with the deceased. We are of the view that the deceased‟s alighting at Mayapuri Chowk, was recorded in the DD Ex.PW-14/A because this was the normal practice that the deceased was to get down at Mayapuri bus stand and then to walk down to his house.
45. Similarly, we do not agree with the reasoning of the Trial Court that if an accused fails to produce any oral or documentary evidence regarding his presence at a particular time or if he fails to give any explanation in his examination under Section 313 Cr.P.C. then an adverse inference is to be drawn against him. The prosecution in order to prove its case has to stand on its own legs. An accused can be asked to render explanation only in respect of the facts, particularly within his knowledge once the prosecution proves the facts it is required to prove.
46. Of course there is delay in examination of PW-6 and PW-26. It appears that the Investigating Officer did not act with promptitude and with a sense of urgency in a serious case like the present one. At least, he should not have waited for the month of June to record the statement of PW-26 Avinash. But, at the same time, we cannot discard the testimony of PW-6 and PW-26 simply on the ground that their statements under Section 161 Cr.P.C. were not recorded promptly by the IO, particularly when they have given reasonable explanation for the same. The factum of enquiry about Sudhir by the Appellants and then following the bus was treated innocuous by PW-6 Rajnish and, therefore, the same was neither reported to the Principal nor to the police officer.
47. Moreover, question of delay in examining a witness during investigation is material only if it is indicative or suggestive of some unfair practice by the Investigating Agency for the purpose of introducing false witnesses to support the prosecution version.
48. PW-6 and PW-26 were young boys, aged about 15 years. They had no axe to grind against either of the two Appellants. There was no reason for
Crl.A.09/1998 Page 20 of 45 them to falsely depose against the Appellants, particularly, Appellant Dinesh who was a student of class 12 in the same school.
49. In our view, it is established that Appellant Dinesh had made enquiries about Sudhir after the Hindi examination was over. It is also established that the Appellants followed the bus wherein Sudhir along with PW-6 and PW-26 was travelling to his destination. As stated earlier, this circumstance however, cannot be treated to be the deceased being last seen alive in the company of the Appellants before he was found dead.
DISCLOSURE STATEMENTS AND DISCOVERY OF ARTICLES
INCLUDING THE DEAD BODY
50. It is argued by the learned senior counsel that an extra judicial confession is introduced to work out a blind murder case. In this case also after alleging an extra judicial confession purported to have been made by the Appellants to PW-29 Om Prakash they were arrested at the office of PW-2 Bhagwan Dass. The Appellants were taken to the Police Station where they allegedly made disclosure-cum-confessional statement to SI Om Prakash. According to the prosecution, Appellant Pradeep made a disclosure statement Ex.PW-1/A, whereas Appellant Dinesh made a disclosure statement Ex.PW-1/B. PWs 1 and 2 and an independent witness PW-18 Rajinder Singh @ Shilpi were present at the time of interrogation of Pradeep and Dinesh which was done in separate rooms by SI Om Prakash, second IO of the case.
51. Shri K.K. Sud, learned senior counsel for the Appellants has urged that the two disclosure statements (Ex.PW-1/A and Ex.PW-1/B) are wholly confessional statements containing all possible minute details and are a replica of each other.
52. It is argued that even before recording the disclosure statements Ex.PW- 1/A and PW-1/B at the time of arrest of the Appellants at the office of PW Bhagwan Dass, sections 364/302/201/34 of IPC were mentioned in the personal search Memo Ex. PW-33/C of Appellant Pradeep and Ex.PW- 33/B of Appellant Dinesh. This, argues the learned senior counsel, is a
Crl.A.09/1998 Page 21 of 45 clear indication of the fact that the police had already made up their mind to falsely implicate the deceased.
53. It is argued that PW-18 Rajinder Singh @ Shilpi is a chance witness, whose address had not been correctly recorded by SI Om Prakash so as to conceal his identity and foreclose the Appellants from gathering any information about him. His statement is discrepant and is wholly unreliable. Though, the driving licence Ex.P-10 belonging to Appellant Pradeep is claimed to have been recovered from the spot i.e. crossing of Simon Bolivar at Upper Ridge Road, the driving licence is not seen in any of the photographs taken at the spot by photographers PWs 23 and 25.
54. It is submitted that as per the prosecution version, Sudhir went missing on the evening of 04.03.1994 and his skeleton is claimed to have been recovered on the night of 05-06.04.1994. As per PW-8 Dr. L.K. Barua, the time since death was about one month. The learned Senior counsel argues that it is highly improbable, almost impossible that the bones and small articles of the deceased and the driving licence of Appellant Pradeep would withstand the vagaries of nature for a month and would be recovered after a month. To give some credence to the recovery, it was incumbent on the IO to have joined some independent witness from nearby place, particularly, Mahavir Vanasthali which is shown to be close by in the site plan Ex.PW-33/H prepared by the IO.
55. It is urged that the recovery of all the articles from the spot including the driving licence have been planted on the Appellants at the behest of PW Raj Kumar, who was interested in grabbing the factory run by the Appellant Pradeep in Hari Nagar adjacent to the factory of PW Raj Kumar. It is argued that the Appellants hardly had any motive to commit the murder of Sudhir. Rather, PWs Bhagwan Dass and Raj Kumar had a motive to falsely implicate the Appellants as evident from the litigation copies which were allowed to be placed on record at the time of hearing of this Appeal.
56. PW-1 Raj Kumar, PW-2 Bhagwan Dass, PW-18 Rajinder Singh @ Shilpi, PW-21 Gyan Chand, and PW-33 SI Om Prakash are the witnesses in
Crl.A.09/1998 Page 22 of 45 respect of the disclosure statements and the recovery at the instance of the Appellants.
57. As per the scheme, all confessions made to a police officer or to any person while in custody of police are governed by sections 24, 25, 26 and 27 of the Indian Evidence Act. The confession made to any police officer is inadmissible in evidence. Similarly, any confession made by an accused while he is in custody of police cannot be proved against the said person. Section 27 of the Indian Evidence Act is in the shape of a proviso to section 26 as it permits so much of the information given by an accused in the custody of a police officer (whether it amounts to a confession or not) as it relates distinctly to the facts thereby discovered to be admitted in evidence.
58. Learned senior counsel made much criticism of the recovery in pursuance of the disclosure statement Ex.PW-1/A and PW-1/B on the ground that there cannot be discovery of any fact twice, once at the instance of Appellant Pradeep and then at the instance of Appellant Dinesh. It is stated that the fact which is already discovered cannot be re-discovered.
59. On the other hand, learned APP has submitted that there is nothing wrong in recording spontaneous disclosure statement of two or more persons accused of any offence. It is not necessary that an accused must accompany the police officer for discovery of any fact. If any information is given by an accused, the fact can be discovered even without the presence of an accused. The learned APP places heavy reliance on State (NCT of Delhi) v. Navjot Sandhu @ Afzal Guru, 2005 (11) SCC 600, wherein it was held as under:-
"142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary
concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on
Crl.A.09/1998 Page 23 of 45 the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant-accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.
145. Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs.10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the
applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or
simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the
Crl.A.09/1998 Page 24 of 45 statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost
simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these preparatory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel."
60. The recoveries alleged to be at the instance of the Appellants are important circumstances as the proof of guilt or otherwise would depend mainly on this circumstance.
61. We shall deal with the arguments on this aspect one by one. This is true that even before the disclosure statements of the Appellants were recorded, SI Om Prakash had mentioned section 364/302/201/34 of IPC in the arrest memos Ex. PW-33/B and PW-33/C. According to the prosecution an extra judicial confession had already been made first to PW-29 and then to PWs 1 and 2. After this information was given by PW-1 Raj Kumar to Police Station Kirti Nagar SI Om Prakash was asked to visit the premises of Bhagwan Dass by the SHO. Thus, SI Om Prakash had the knowledge of the extra judicial confession. So, there was nothing
Crl.A.09/1998 Page 25 of 45 unusual in mentioning section 364/302/201/34 IPC in the case which was originally registered under section 365 IPC. In our view, simply on mentioning these sections on the arrest memos it cannot be said that the police was determined to falsely implicate the Appellants.
62. Now we turn to the credentials of PW-18 Rajinder Singh @ Shilpi. It is true that on the disclosure statement Ex.PW-1/A and PW-1/B and the recovery memos Ex.PW-1/C to PW-1/G, the address of PW-18 is shown as 13/30, West Patel Nagar.
63. It was put to PW-18 that a registered letter was sent at the address 13/30, West Patel Nagar addressed to Rajinder Singh @ Shilpi (PW-18). PW-18 denied any knowledge that any such letter was addressed or sent by Shri R.P.Aggarwal father of the Appellants or that the same was returned back undelivered. He stated that the correct address was 13/13, West Patel Nagar. Thus, it appears that it was on account of phonetic similarity that his address was recorded as 13/30, West Patel Nagar. Obviously, if any letter was sent by the father of the Appellants addressed to PW-18 at 13/30, West Patel Nagar, the same would be returned back undelivered. This witness, during his cross-examination, as was also observed by the Trial Court, had deposed about his credentials. He stated that he was working as a General Manger in Sewa International, B-82, Maya Puri Phase-I, Delhi and was drawing a salary of `17,000/- per month (in the year 1996 when the statement of this witness was recorded). The witness also gave the name of his landlord as Mr. Jitender Mohan Malik. He denied the suggestion that he had (initially) given a bogus address 13/30 to the police so that nobody may be able to trace him. He denied that the address 13/13 was also a bogus one.
64. It may be noticed that the last part of the statement of PW-18 was recorded on 16.11.1996. Statement of Inspector Om Prakash was last recorded on 25.09.1997 i.e. almost ten months after recording the statement of PW-18. If PW-18 was a police tout at the beck and call of the police or his address 13/13 was bogus, appropriate suggestion could have been given to PW-33
Crl.A.09/1998 Page 26 of 45 in his cross-examination on 25.09.1997 or to Inspector Yashwant Singh, the final IO of the case.
65. We would not like to give any certificate that PW-18 Rajinder Singh @ Shilpi being General Manager of a private company getting a salary of `17,000/- per month was a highly placed person in the society. The fact, however, remains that nothing could be brought in his cross examination to discredit his testimony or to show that he was at the beck and call and always ready to oblige the police. We see no reason to disbelieve his version that he had gone to Police Station Kirti Nagar to lodge a report regarding missing of his driving licence.
66. The learned senior counsel referred to the cross-examination of PW-18 when he stated that it had taken ten minutes to record disclosure statement of the two Appellants. Our attention was also drawn to another discrepancy in the testimony of PW-18 as he had stated in his cross examination that the SHO was also with them, though as per the prosecution version the SHO had reached the spot (of recovery of articles) subsequently. PW-33 SI Om Prakash had summoned the SHO for the recovery.
67. We do agree that it must have taken much more time in recording the disclosure statements Ex.PW-1/A and PW-1/B of the two Appellants which ran into 4½ hand written pages each. This incident had taken place in 1994 and the statement of PW-18 was recorded after more than three years. The memory power of observation, retention and reproduction differs from person to person. Some people do not give much importance to the time taken in completion of any proceedings.
68. Thus, we are of the view that if PW-18 had stated that he stayed in the Police Station for about ten minutes only or that the SHO was with them (though he had reached the spot later) does not affect the credibility of PW-18 when nothing was brought in his cross examination to discredit him. It is a well known fact that the persons of the public are reluctant to join investigation to avoid visiting the Police Station and the Court. But, if
Crl.A.09/1998 Page 27 of 45 anybody comes forward, the Courts are not expected to discredit or disbelieve public witnesses on flimsy grounds.
69. It is argued by the learned senior counsel that 18 photographs of the spot have been proved by the prosecution in this case but none of the photographs show the driving licence belonging to Appellant Pradeep to be lying at the spot. It is argued that the driving licence is mentioned as item No.13 in the recovery memo Ex.PW-1/G, which is the last item. The first page of the inquest papers sent to PW-8 Dr. L.K. Barua has not been placed on the judicial file, there is no mention of recovery of the driving licence in the application seeking police remand of the Appellants which would go to show that the driving licence of Appellant Pradeep was planted subsequently to strengthen the case of the prosecution. PWs 1, 2, 18, 21 and 33 deposed about the recovery of the driving license of Appellant Pradeep from the spot. During cross-examination a suggestion was given to these witnesses that the driving license had been planted. It was specifically suggested to PW-1 that he gave the driving licence Ex.P- 10 to the police. At the same time, it was not suggested as to how and when PW-1 came into possession of the driving licence Ex.P-10. In the absence of any explanation rendered by the Appellants, Appellant Pradeep, in particular, we have no reason to disbelieve the testimonies of PWs 1 and 2, independent witness PW-18 and two police officers PW-21 ASI Gyan Chand and PW-33 SI Om Prakash.
70. A perusal of the disclosure statement Ex.PW-1/A of Appellant Pradeep and Ex.PW-1/B of Appellant Dinesh show that they are in the form of a confessional statement except the words "I can point out the place.... and get the dead body recovered" (us jagah ki nisan dehi kara sakta hui...... lash baramad kara sakta hun). This part of the confessional statement being protected by Section 27 of the Indian Evidence Act, made by both the Appellants is relevant. In pursuance of this statement incriminating articles i.e. partly burnt pant and the buckle Ex.P-1, partly burnt sweater of Maroon colour Ex.P-2, pair of PT shoes Ex.P-7, partly burnt pieces of shirt and vest Ex.P-8, ring inscribed with letters „SKG‟ Ex.P-9 and the
Crl.A.09/1998 Page 28 of 45 driving licence Ex.P-10 were recovered from the spot in pursuance of the disclosure statements Ex.PW-1/A and Ex.PW-1/B. All these articles were identified by PWs 1 and 2 to be belonging to the deceased. The testimonies of PWs 1 and 2 with regard to the label on the partly burnt pant Ex.P-1 was also identified by PW-5 who deposed that he used to stitch clothes of deceased Sudhir. A small piece of cloth attached with the order form sent to the CFSL also tallied with the cloth of the pant. A buckle on the partly burnt pant Ex.P-1 was identified to be belonging to Navyug School, Sarojni Nagar by PW-7 Shri P.S. Rana Principal of the School. The testimony of PWs 1 and 2 was further corroborated by PW-29 with regard to the ring Ex.P-9. The testimony of PW-29 that he had gifted the ring Ex.P-9 to his sister‟s son, the deceased, was not challenged during cross-examination.
71. It is argued by the learned senior counsel that under section 165 Cr.P.C. whenever an officer In-charge of the Police Station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorized to investigate may be found in any place within the limits of the Police Station, such officer may after recording in writing the grounds of his belief, proceed to the place for search of the said thing within the limits of such Police Station.
72. It is submitted that in this case the search was to be made of a place at Simon Bolivar road which was not within the jurisdiction of Police Station Kirti Nagar. As per section 166 Cr.P.C. if the place to be searched was beyond the limit of such Police Station then the officer in charge of the other Police Station where the search was to be made had to be requested to make or cause to be made the search within the limits of the said Police Station. As per section 166 (3) Cr.P.C. if there is reason to believe that the delay occasioned by requiring the officer in charge of the other Police Station to make the search may result in the destruction or concealment of an article to be searched, then he could for the reasons to be recorded in writing, proceed to make the search in the limits of another Police Station.
Crl.A.09/1998 Page 29 of 45 However, no DD entry was recorded to comply with the provisions of Section 165 and 166 Cr.P.C.
73. We have gone through the provisions relied upon by the learned senior counsel and are of the view that the contentions raised are misconceived. Section 165 and 166 of the Cr.P.C. relates to the searches to be made by the police officers and not to the recovery in pursuance to a disclosure statement. The contention, therefore, does not help the Appellants.
74. It is submitted on behalf of the Appellants that there was a distance of at least 10-12 kilometers from Police Station Kirti Nagar to the alleged place of recovery. Yet, no public person was joined either on the way or at the place of recovery which makes the recovery doubtful.
75. Learned senior counsel for the Appellants has criticized the non-joining of any independent witness at the time of alleged recovery. Reliance is placed on Deepak Kumar v. Ravi Virmani, 2002 (2) SCC 734 and Kehar Singh v. State (Delhi Admn.), 1988 (3) SCC 609.
76. We do not find much force in this contention also. As already stated, PW- 18 Rajinder Singh, a public witness was already accompanying the police party. Despite an attempt made on behalf of the Appellants, his testimony could not be discarded. Moreover, it was not incumbent on the IO to join any public witness in pursuance of any recovery to be effected in pursuance of a disclosure statement as held by the Supreme Court in State, Govt. of NCT of Delhi v. Sunil & Anr., (2001) 1 SCC 652, it was held that there is no requirement in law either under Section 27 of the Indian Evidence Act or under Section 161 Cr.P.C. to obtain signatures of independent respectable persons of the locality on the statement made by the accused. We would like to extract Para 19 of the report hereunder:-
"19. In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are
Crl.A.09/1998 Page 30 of 45 made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person "and signed by such witnesses". It must be remembered that a search is made to find out a thing or document about which the searching officer has no prior idea as to where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts the search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter- skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, A.P., Hyderabad v. S. Sardar Ali, (1983) 4 SCC 245 . Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: (SCC p.254, para 8) "Section 100 of the Criminal Procedure Code to
which reference was made by the counsel deals
with searches and not seizures. In the very
nature of things when property is seized and not
recovered during a search, it is not possible to
comply with the provisions of Sub-section (4)
and (5) of Section 100 of the Criminal
Procedure Code. In the case of a seizure under
the Motor Vehicles Act, there is no provision for
preparing a list of the things seized in the
course of the seizure for the obvious reason that
all those things are seized not separately but as
part of the vehicle itself."
77. It is pleaded by Shri K.K. Sud, learned senior counsel for the Appellants that a perusal of the missing report by DD No.64-B Ex.PW-14/A shows that there was no mention of Sudhir wearing any ring or PT shoes at the time of leaving for school. According to the prosecution, the learned senior counsel argues, Sudhir had returned after taking Hindi examination but the question paper was not recovered either from the spot or from the
Crl.A.09/1998 Page 31 of 45 school bag. We do not find much merit in this contention raised on behalf of the Appellants. A silver ring and a pair of PT shoes are ordinary things. It was thus not expected of Bhagwan Dass to make a mention thereof while getting the missing report recorded.
78. A contention has been raised on behalf of the Appellants that the articles recovered from the spot i.e. the ring and the buckle ought to have been put for Test Identification Proceedings (TIP). Since no TIP in respect of these articles was organized during the investigation, its identification in the Court cannot be believed. The buckle of the school had a specific mark of identification bearing the name of the school „Navyug Vidhayala‟. The ring recovered from the forest near the remnants of the dead body bore the mark „SKG‟. The ring was identified by PW-29 who had gifted the same to Sudhir on 15.01.1992.
79. In view of the specific mark of identification on the ring and the buckle, there was absolutely no necessity of putting the ring and the buckle for TIP.
80. It is argued by the learned senior counsel that police officer must prove the information which leads to the recovery; otherwise Section 27 of the Evidence Act would not apply. Reliance is placed on „Ramkishan Mithanlal Sharma v. State of Bombay, AIR 1955 SC 104 and State of Karnataka v. David Rozario, (2002) 7 SCC 728.
81. We have perused the statement of PW-33 SI Om Prakash (the second IO). He had testified that the "accused persons disclosed to get the dead body recovered in the jungle of Upper Ridge Road........... and the articles which the deceased was wearing and carrying at the time............."
82. Thus, the information given by the Appellants (accused) was duly proved as Ex.PW-1/A and Ex.PW-1/B. On the ratio of Ramkishan Mithanlal Sharma (supra) and David Rozario (supra) the information leading to recovery is admissible in evidence.
83. The discovery of above stated articles in pursuance of the disclosure statements Ex.PW-1/A and PW-1/B coupled with the testimony of PW-17
Crl.A.09/1998 Page 32 of 45 Dr. Ikramul Haque and his report Ex.PW-17/A leaves no room for doubt that remnants of the dead body belonged to deceased Sudhir. It further establishes that the Appellants had knowledge of the dead body of the deceased lying in the jungle of Simon Bolivar at Upper Ridge Road, which is a very important circumstance against the Appellants. The Appellants have not come forward with any explanation as to how they were aware of the remnants of the dead body and the articles belonging to the deceased lying at the spot. It is also established that the death was homicidal.
RECOVERY OF DRIVING LICENSE
84. The learned senior counsel criticizes the recovery of driving license belonging to Appellant Pradeep on the ground that it was not shown in any of the photographs taken by PWs 23 and 25. The driving license is mentioned as item No.13 on the recovery memo Ex.PW-1/G. He submits that the last page of the recovery memo was subsequently changed. It is argued that seizure memo Ex.PW-1/G was fabricated after 07.04.1994. The original seizure memo sent by the IO along with the inquest papers was replaced with the newly prepared seizure memo Ex.PW-1/G.
85. Our attention was also drawn to the printed proforma of inquest papers Ex.PW-8/C and it is submitted that „Portion A‟ was added afterwards.
86. We have gone through the recovery memo Ex.PW-1/G. Of course, item No.13 relates to the recovery of driving licence No.90020114 belonging to Appellant Pradeep. Page 2 and Page 3 of the memo has been recorded in the same ink and the same flow. We are not convinced that Page 3 of Ex.PW-1/G was changed subsequently or that there was any reason for a responsible police officer to indulge in fabrication.
87. We have also perused the death report printed proforma Ex.PW-8/C, which as per procedure, was sent to the doctor to perform autopsy on the dead body. The articles i.e. a piece of pant, piece of school belt, and piece of underwear etc. belonged to the deceased whereas the driving license belonged to Appellant Pradeep. Thus, nothing can be inferred from the
Crl.A.09/1998 Page 33 of 45 use of word „etc.‟ between the articles belonging to the deceased and the driving license belonging to the Appellant.
88. It is submitted that according to the prosecution Sudhir was murdered on the evening of 04.03.1994 whereas recovery of the driving license was effected on the night of 05-06.04.1994. It is highly improbable that a driving licence would withstand the vagaries of nature for a month and would still be available at the place of recovery.
89. We have perused the driving license which is attached to the Trial Court record. The same is Polaroid and, therefore, there was nothing unusual if it weathered the nature during the period of one month.
90. It has been submitted that the driving license was neither sealed nor deposited in the malkhana which casts doubt in the case of the prosecution. We do not agree. In fact, Appellant Pradeep has not given any explanation whatsoever as to how the police came into possession of the driving licence. In reply to question No.84 in his examination under Section 313 Cr.P.C., Appellant Pradeep stated that the driving licence was made available to the police by Raj Kumar (PW-1) after 07.04.1994. We are conscious of the fact that the prosecution has to establish its case and cannot take strength from the weakness of the defence. Yet, once the prosecution established the recovery of the driving license, it was for Appellant Pradeep to offer an explanation as to how and when the driving licence was obtained from him either by any police officer or by Raj Kumar PW-1. In fact, this non explanation as to how Appellant Pradeep was divested of the driving licence makes all the contentions as to the doubt regarding its recovery to be untenable. For this very reason, we do not find any substance in the argument raised on behalf of the Appellants that the driving licence does not appear in any of the photographs in respect of the articles lying at the spot at the time of the recovery on the night intervening 05-06.04.1994.
EXTRA JUDICIAL CONFESSION
Crl.A.09/1998 Page 34 of 45
91. As per the prosecution version, the Appellants had gone to PW-28 Om Parkash Garg and made a clean breast of their guilt. PW-28 took them to PWs 1 and 2 where the Appellants again confessed their guilt.
92. It has been urged by the learned senior counsel for the Appellants that PW-28 has not supported the prosecution case on this aspect. The Trial Court on appreciation of evidence, found that PW-28 had given evasive replies to the questions put to him by the learned APP in the cross- examination. The Trial Court observed that instead of making categorical denial about the extra judicial confession and the factum of taking the Appellants to PW-2, PW-28 merely exhibited his ignorance. The Trial Court relied upon the testimonies of PWs 1 and 2 with respect to the extra judicial confession made by the Appellants before them which led to the recovery of the remnants of the dead body of the deceased. The Trial Court relied upon a decision of the Supreme Court in State of Gujarat v. Anirudh Singh and Anr., 1997 (5) AD SC 467; a decision of Madhya Pradesh High Court in State of Madhya Pradesh v. Nissar Ahmed, 1997 Crl.J. 305; and a decision of Rajasthan High Court in State of Rajasthan v. Bhera, 1997 Crl.J. 1237; and held that the testimony of the hostile witnesses can be ignored. The Trial Court rejected the contention raised on behalf of the Appellants that PW-28 who is a relation of PW-1 was introduced to grab the Appellants‟ property. It found the testimony of PWs 1 and 2 to be consistent and reliable and thus accepted the extra judicial confession purported to have been made by the Appellants.
93. The learned senior counsel for the Appellants has urged that an extra judicial confession has to be proved like any other fact (Mulk Raj v. State of U.P., AIR 1959 SC 902). The extra judicial confession should be deposed in the exact words or at least substantially as nearly as possible in the words of accused (C.K.Raveendran v. State of Kerala, AIR 2000 SC 369) and that extra judicial confession is by nature a weak evidence. (State of Punjab v. Bhajan Singh, AIR 1975 SC 258.
94. It is true that normally, a person after having committed an offence would not blurt out about the commission of any offence when he had discretely
Crl.A.09/1998 Page 35 of 45 committed the same, after taking all the precautions and pains to conceal it. The Appellants may be of the view that PW-2 Bhagwan Dass who was their Mama may pardon them, if they tell him the truth.
95. PW-28 Om Parkash Garg, according to the prosecution, was the first person to whom the Appellants confessed about the crime. It is argued by the learned senior counsel that he was falsely introduced as a witness of extra judicial confession being the brother of Raj Kumar‟s (PW-1) wife. However, PWs 1 and 2 were unable to persuade him to tell a lie in the Court and that is why he did not support the prosecution version regarding the making of any extra judicial confession to him.
96. Learned ASJ commented about the conduct of this witness and stated that the true facts were being concealed by this witness, as this witness had given evasive replies to most of the questions which were specifically within his knowledge. Be that as it may, the fact remains that this witness had not supported the prosecution version and was declared hostile and therefore, his testimony is of no help to the prosecution.
97. PWs 1 and 2 did depose about the extra judicial confession. We agree with the learned senior counsel that extra judicial confession should be either in the exact words of the person making it or it should be the substance of what has been stated by the accused. PW-1 testified that the Appellants came to them (PWs 1 and 2) along with Om Prakash (PW-28) and Om Prakash informed them that the Appellants had committed the murder of Sudhir and were apologizing for their act. This witness is silent if the Appellants themselves made any confession to him.
98. PW-2 Bhagwan Dass, on the other hand, deposed that Om Prakash (PW- 28) brought the two Appellants to their house and informed them (PWs 1 and 2) that they (the Appellants) had committed the murder of his son Sudhir and they had confessed to their guilt. PW-2 further deposed that the Appellants also confessed to having committed the murder of Sudhir (on the Ridge Road near Dhaula Kuan) and then burning of the body by pouring petrol over him. Thus, from the testimonies of PWs 1 and 2 it is apparent that the exact words used by the Appellants while making the
Crl.A.09/1998 Page 36 of 45 confession have not been spoken by PWs 1 and 2. PW-1 has simply stated that Om Prakash (PW-28) informed about the confession having been made by the Appellants.
99. Thus, there is testimony of PW-2 Bhagwan Dass only on the extra judicial confession. The exact words used by the Appellants have not been spoken. We are also in doubt if the substance of the alleged confession has been spoken about by PW-2 or not. Thus, it would be unsafe to rely upon the extra judicial confession.
100. It has been urged by the learned senior counsel for the Appellants that the extra judicial confession is the starting point of the unfolding of the prosecution version and once the same is not relied upon, the very edifice of the prosecution falls. We are not inclined to agree with this submission for the reason that we have not disbelieved the extra judicial confession purported to have been made. Rather, in view of the evidence produced and exact words used by the Appellants or the substance of the contention not being spoken, the same is not being taken into consideration.
101. The prosecution during trial also relied upon motive being one of the circumstances impelling the Appellants to commit the crime. It is the case of the prosecution (and proved on record) and also not disputed by the Appellants that complainant Bhagwan Dass is the maternal uncle of the Appellants. The mother of the Appellants is the real sister of PW-2. According to the prosecution an amount of ` 10,000/- had been taken as a loan by Smt. Bimla, mother of the Appellants in the year 1992. The Appellants, however, returned a sum of ` 6,500/- only and informed that the amount of ` 3,500/- was adjusted towards labour charges in the account of Appellant‟s brother Naveen. According to the prosecution there was exchange of hot words and PW-2 Bhagwan Dass had used some harsh words against the Appellants.
102. It has been urged by the learned senior counsel for the Appellants that there was no motive on the part of the Appellants to commit this crime.
Crl.A.09/1998 Page 37 of 45 On the other hand, there was a motive on the part of the PWs 1 and 2 to falsely implicate the Appellants. The learned senior counsel referred to the evidence of PW-2 where he claimed that he had purchased a plot of land measuring 50 sq. yds. in the name of Smt. Bimla (mother of the Appellants) for ` 40,000/- adjacent to another plot of 50 sq. yds. which was purchased by the complainant in the name of PW-1. The learned senior counsel submitted that this version of the prosecution could not be established. Rather, there are documents on record to show that there was a Civil Suit filed by the mother of the Appellants against PWs 1 and 2. A criminal writ was also filed by the Appellants impleading PWs 1 and 2 as respondents for registration of a criminal case against them as they had trespassed into factory belonging to the Appellants after they had been get arrested falsely in this case by the complainant.
103. By order dated 08.03.2011 the Appellants were permitted to place on record the certified copies of the Civil Suit No.599/2000, a copy of the order dated 02.01.2001 passed by the Delhi High Court in the said Civil Suit on the basis of a compromise between the parties and copy of order in the Criminal Writ No.222/2000.
104. We have gone through the copies of the documents placed on record. PW- 2 Bhagwan Dass testified that in the year 1992 his sister borrowed a sum of ` 10,000/- from him. The Appellants returned a sum of ` 6,500/-. They informed the complainant of having adjusted the remaining amount of ` 3,500/- which resulted in exchange of hot words. Therefore, even if testimony of the complainant or the documents filed by the Appellants in this Appeal are taken into account, it would simply show that there was some dispute relating to certain payments or in respect of a property in Hari Nagar measuring 50 sq. yds., which was settled by virtue of the order dated 02.01.2001 in Civil Suit No.599/2000. The averments made in the criminal writ petition No.222/2000 filed by the Appellants and their mother Bimla contains allegations of the false implication of the Appellants and theft and trespass into their property. These are subsequent events and are of no consequence. The evidence adduced by the
Crl.A.09/1998 Page 38 of 45 prosecution and the copy of the civil suit and the order dated 02.01.2001 simply show that there was some civil dispute between Smt. Bimla Devi (mother of the Appellants) and the Appellants on the one hand and PWs 1 and 2 on the other hand.
105. The grievance of the Appellants as per the averments made in the civil suit as well as in the writ petition arose only after their alleged (false) implication in the case. Thus, we do not find that PWs 1 and 2 have any motive to falsely implicate the Appellants.
106. As stated above, no motive to commit the crime has been established on the part of the Appellants.
107. Now we shall come to the additional argument raised by the learned senior counsel. It has been urged that in this case the investigation was tainted and dishonest and, therefore, it would be highly unsafe to place reliance on the recovery of the articles as mentioned in the recovery memo Ex.PW- 1/G. It is submitted that no effort was made to join any independent witness at any stage; the first IO did not visit the school till 11.03.1994; even on 11.03.1994 only Shri R.S. Rana, Principal of the school was examined; statement of none of the class mates of the deceased was recorded; there was no record of interrogation of Balbir Singh, ex- employee of the complainant; statement of Om Prakash was not recorded regarding the precise confession if at all made before the police in respect of the disclosure-cum-confessional statement made by the Appellants; no DD entry was made regarding taking of the two Appellants to Police Station Kirti Nagar for interrogation after arrest; no information was given to SHO Police Station Dhaula Kuan for assistance in the search; no burnt bushes/shrubs were seized; no finger prints were lifted from the spot of alleged recovery; no query was made to the autopsy surgeon by way of verification of the contents of extra judicial confession, if the head had been chopped of or if the dagger recovered on 07.04.1994 was capable of chopping of the head from the neck of the body; no query was made to the autopsy surgeon about the smell or presence of petrol / kerosene or any combustible agent; the signatures of the Appellants were not taken on the
Crl.A.09/1998 Page 39 of 45 recovery memo Ex.PW-1/G whereas other memos were got signed from the Appellants; there was no DD entry regarding production of the Appellants on 28.03.1994 or issuance of notice under section 160 Cr.P.C. for appearance on 27.03.1994; the IO did not pursue the lie detection test allegedly fixed on 29.03.1994; dividing recovery at the behest of the two Appellants; non calculation of the evidence of Sudhir being seen in the company of Appelalnts on Rama Road, West Patel Nagar, Sweet Shop; false explanation by ASI R.K.Tiwari for not conducting investigation from 11.03.1994 to 22.03.1994 and non sealing of the driving licence attached with the judicial file without sealed cover create doubt in the prosecution version.
108. It is submitted that the finding of the Trial Court that the recovery of the school bag and knife at the behest of the Appellants was not proved, but was a result of padding confirms that the investigation was tainted. The learned senior counsel placed reliance on Jagtar Singh v. State of Punjab, 1987 (2) RCR 45 (P&H) in support of the proposition that once the investigation is found to be tainted, the whole prosecution case becomes open to serious doubt and challenge.
109. In Dharmendrasinh @ Mansing Ratansinh v. State of Gujarat, 2002 (4) SCC 679, it was held as under:-
"14. In our view the High Court taking into account the observations made in the decision referred to above came to the conclusion that otherwise reliable statement of the witness PW-3 Ashaben could not be discarded or
discredited even though there had been any fault or negligence in conducting the investigation, that too by itself, be not sufficient to dislodge the prosecution case as a whole. The chances of making some embellishment here and there in the statement are not ruled out even in cases of otherwise truthful and reliable witnesses. The concept of falsus in uno andfalsus in omnibus" has been discarded long ago. Therefore in such circumstances the Court may have to scrutinize the matter a bit more closely and carefully to find out as to how far and to what extent the prosecution story as a whole is demolished or it is rendered unreliable. For this purpose the statement of the witnesses will have to be considered along with other corroborating evidence and independent circumstances so as to come to a
Crl.A.09/1998 Page 40 of 45 conclusion that the contradiction in the statement of a witness could be considered as an embellishment by the witness under one or the other belief or notion or it is of a nature that the whole statement of the witness becomes untrustworthy affecting the prosecution case as a whole. The same principle will apply to a faulty or tainted investigation. Other relevant facts and circumstances cannot be totally ignored altogether. While appreciating the matter one of the relevant consideration would be that chances of false implication are totally eliminated and the prosecution story as a whole rings true and inspire confidence. In such circumstances despite the
contradictions of the defective or tainted investigation, a conviction can safely be recorded.".
110. We have already observed earlier that an independent witness PW-18 Rajinder Singh was joined by the Investigating Officer. We have also noticed that it was not mandatory to join any independent witness for making recovery in pursuance of a disclosure statement under Section 27 of the Evidence Act in view of State, Govt. of NCT of Delhi v. Sunil & Anr. (supra).
111. Sudhir went missing on 04.03.1994. According to the prosecution, he was done to death on the same evening. We are not convinced that there was any requirement to seize any burnt bushes / shrubs. A small fire here and there do happen in the forest and burnt bushes would not have been of any material evidence against the Appellants. We have also noticed earlier that there was no requirement under Section 165 / 166 Cr.P.C. to make any DD entry regarding the recovery to be made in pursuance of the disclosure statement as section 165 and 166 Cr.P.C. relates to the searches and not to the discoveries in pursuance of any disclosure statement under Section 27 of the Evidence Act. We are also of the view that there was no need to go for a lie detection test in spite of the application moved on 29.03.1994 in view of the discoveries made at the instance of the Appellants on the night intervening on 05-06.04.1994.
112. Of course, the Trial Court has disbelieved the recovery of the school bag and the knife and has held the same to be a result of padding and we have not disturbed the findings of the Trial Court on this aspect but that by itself does not make the entire investigation tainted. In Ram Bihari Yadav v.
Crl.A.09/1998 Page 41 of 45 State of Bihar, AIR 1998 SC 1850, it was held by the Supreme Court that if primacy is given to the omission, lapse by perfunctory investigation by the Investigating Agency, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice. It is true that if on account of any lapse doubts are created in prosecution case, the accused would be entitled to the benefit of that doubt. But, if the prosecution is able to establish its case beyond reasonable doubt against the accused in spite of the lapses, the accused cannot be acquitted because of the lapses on the part of the investigating officer.
113. The learned senior counsel referred to Arjun Malik v. State of Bihar, 1994 Supp (2) SCC 372 and Masalti v. State of U.P., AIR 1965 SC 202 to emphasise that in a murder case it is the duty of the Court to scrutinize the evidence with extra ordinary care as the person convicted runs the risk of being subjected to the highest penalty prescribed by the Indian Penal Code. We do agree with the proposition of law laid down in the judgments cited and do feel that it is the bounden duty of the Court to scrutinize the evidence with extra care in heinous crimes.
114. In view of the foregoing discussion, the prosecution has been able to establish the following circumstances against the Appellants:-
1. Discovery of skull and skeleton (some bones); in addition to (a) recovery of belt having buckle of „Navyug Vidhayala‟ with the monogram of the school;
(b) recovery of burnt piece of pant Ex.P-1 having the label of the tailor „KHURANA, BE-115, HARI NAGAR, N.D.64‟ which has been proved to be stitched by PW-5. The piece of cloth Ex.PW-5/2 of the pant stitch with the order form Ex.PW-5/1 was examined by the CFSL and was found to tally with the cloth of the pant vide report Ex.PW-17/A; (c) recovery of PT shoes Ex. P-7 belonging to Sudhir, identified by PWs 1 and 2;
(d) Recovery of the silver ring inscribed with mark „SKG‟ which was gifted to Sudhir by his maternal uncle PW-29 Vipin Garg and identified by him; in pursuance of the disclosure statements Ex.PW-1/A by Appellant Pradeep and Ex.PW-1/B by Appellant Dinesh.
Crl.A.09/1998 Page 42 of 45
2. Recovery of driving licecse Ex.P-10 belonging to Appellant Pradeep from the spot from where the skeleton and the articles mentioned at Serial No.2 above belonging to Sudhir were recovered.
3. Appellant Pradeep and Dinesh made enquiries about Sudhir from PW- 6 Rajnish on 04.03.1994 after Hindi examination was over. The Appellants were following the red line bus in which Sudhir was travelling with PW-6 and PW-26.
115. When the case of the prosecution rests on circumstantial evidence, circumstances should in the first place be conclusively proved; the circumstances so proved must unerringly point to the guilt of the accused; the circumstances proved must form a complete chain of evidence not to leave any reasonable ground for conclusion consistent with the innocence of the accused and the circumstances proved must be such that within all human probability the act must have been done by the accused.
116. Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, is the basic judgment of the Supreme Court on appreciation of evidence, when the case depends only on circumstantial evidence, which has been consistently relied in later judgments.
117. In „Sharad Birdhichand Sarda v. State of Maharashtra‟, AIR 1984 SC 1622, the three Judge Bench of the Supreme Court relying on Hanumant Govind Nargundkar (supra) set out the conditions which must be fulfilled before a case against the accused can be said to be fully established. The conditions are :-
"1. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established,
2. All the facts so established should be consistent only with the hypothesis of the guilt of the accused.
3. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
4. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and
5. It must be such as to show that within all human probability the act must have been done by the accused."
Crl.A.09/1998 Page 43 of 45
118. In „Ashish Batham v. State of M.P‟. 2002 (7) SCC 317, after relying on Hanumant Govind Nargundkar (supra) a paragraph in Reg. v. Hodge (1838) 2 Lew 227, was extracted which is reproduced hereunder:-
"The mind was apt to take a pleasure in adapting
circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete."
119. In Sudama Pandey & Ors. v. State of Bihar, 2002 (1) SCC 679, the principles were reiterated as under:-
"8. Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or
unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere
suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny based upon a complete and comprehensive
appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
120. In the latest report of the Supreme Court in G. Parshwanath v. State of Karnataka, 2010 (5) SCC 593; it was held that where the proved circumstance completes the chain of evidence, it cannot be said that in the absence of motive the other circumstances are of no consequence.
121. Thus, the circumstances, 1(a) to (d) and (2) have been conclusively proved by the prosecution. These circumstances taken together, point to the guilt
Crl.A.09/1998 Page 44 of 45 of the Appellants. The circumstances further exclude every other hypothesis except the guilt of the accused. Circumstance (3) is otherwise of innocuous nature. The same, however, corroborates the circumstances (1) and (2).
122. It is true that the prosecution has not been able to establish any motive except that there was an ill feeling towards each other i.e. between the Appellants on the one hand and PWs 1 and 2 (the complainant) on the other. In Sahadevan @ Sagadevan v. State rep. by Inspector of Police, 2003 (1) SCC 534, the Supreme Court held that in case of circumstantial evidence if the circumstances relied upon by the prosecution are beyond doubt then the absence of motive would not hamper a conviction.
123. In view of the foregoing discussion, we do not find any error or infirmity in the impugned judgment. The Appeal is without any merit and has therefore to fail. The same is accordingly dismissed.
124. The Appellants shall surrender before the Trial Court on 16.05.2011 to serve the balance of their sentence. The Registry shall transmit the Trial Court records and this judgment, forthwith, to ensure compliance.
(S. RAVINDRA BHAT)
MAY 02, 2011
Crl.A.09/1998 Page 45 of 45