TMI Blog2009 (8) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... mobile phone since the same was switched off. His wife got worried. She contacted the younger brothers of Atma Ram Gupta as also her children and apprised them of the situation. The children of Atma Ram Gupta as also his younger brothers came to his residence and made inquiries from persons who were in contact with Atma Ram Gupta during the day. They could not ascertain the whereabouts of Atma Ram Gupta till midnight and thus Rajinder Pal Gupta PW-9, the younger brother of Atma Ram Gupta, lodged a missing person report at PS Keshav Puram. HC Ashok Kumar PW-6, recorded DD No. 31, Ex.PW-6/A at 1:00 AM on 25.8.2002 in which it stands recorded that on 24.8.2002 at about 10:30 AM Atma Ram Gupta left his residence in his white coloured Indica Car bearing registration No. DL 6SA 0025 which was driven by the driver Prabhu Yadav and that he went to the residence of Sharda Jain, a Member of Indian National Congress and also a Municipal Councillor from Keshav Puram Ward New Delhi. That on reaching the residence of Sharda Jain, Atma Ram sent back his car with the driver and thereafter, in the company of Sharda Jain and another person, Atma Ram Gupta left the residence of Sharda Jain in an Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh, the driver of Sharda Jain, and the statement Ex.PW- 10/A of the mother of Om Parkash namely, Shanti PW-10. 8. In his statement Ex.PW-11/DA, Om Parkash stated that he had driven Sharda Jain and Atma Ram Gupta in the car of Sharda Jain to the venue of the rally at Firozshah Kotla Grounds and that another person named Rajesh @ Raju was also in the car. From the venue of the rally they all left and he drove the car towards ring road. When the car reached the red light near Hanuman Mandir at Jamuna Bazar, Nigam Bodh Ghat, since he was not feeling well, he got down from the car and Rajesh started driving the car. He further stated that Raj Kumar the brother of Sharda Jain, Rajesh @ Raju and a person named Roshan Singh Pradhan had visited the house of Sharda Jain 8-10 days prior to 24.8.2002 and he saw them again in the house of Sharda Jain on 22.8.2002. He heard suspicious talks between Roshan Singh and Sharda Jain. He further disclosed that in the night of 24.8.2002 Sharda Jain had visited his house and had told him not to divulge to anyone that Atma Ram Gupta was in her company in the morning of 24.8.2002. 9. In her statement Ex.PW-10/A, Shanti PW-10, the mother of Om Prakash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came there and tried to slip away on seeing the police. However, he could not manage to escape and was arrested at 3 P.M. as recorded in the arrest memo Ex.PW-44/A. On being interrogated by Inspector V.S. Meena PW-62, in the presence of Inspector Shiv Raj Singh PW-55 and SI Anil Kumar PW-44, Raj Kumar made a disclosure statement Ex.PW-44/O wherein he disclosed that he was a party to the conspiracy with Sharda Jain and two other persons; namely, Roshan Singh and Rajinder to murder the deceased and that two other persons; namely, Pushpender and Nirvikar were the hired assassins who fired shots at the deceased in pursuance of the said conspiracy. He stated that he could lead the police to the place and identify the same, where the deceased was murdered. He further disclosed that he had removed the wrist watch of the deceased and could get the same recovered. 15. Pursuant to their respective disclosure statements, Sharda Jain and Raj Kumar led the police party consisting of Inspector V.S. Meena PW-62, HC Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar Chauhan PW-44 and SI Shiv Raj Singh PW-55 to a Dak Bangla near a Rajwaha (minor canal) situated behind village Chajjupur, U.P. and v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta PW-16, brothers of the deceased and Mahender Pal Gupta PW-8 and Amrit Lal Singhal PW-37, friends of the deceased, identified the body found in the canal as that of the deceased. 20. Since the body of the deceased was found within the jurisdiction of Police Station Gulawati, UP, the police officials of the said police station were joined in the recovery. Inspector V.S. Meena PW-62, informed the duty officer of PS Gulawati by way of a written application Ex.PW-62/C about the recovery of the body of the deceased based whereon Const. Lalit Kumar PW-60, prepared DD Entry Ex.PW-60/B at 5.00 A.M. on 31.08.2002. Taking along a copy of the afore- noted DD Entry, SI Rambir Singh PW-61, reached the canal, lifted the earth from near the canal and water oozing out from the body of the deceased and seized the same vide Ex.PW- 23/A. SI Rambir Singh also prepared inquest report Ex.PW-61/A and other documents pertaining to the recovery and conduct of post-mortem of the deceased. Inspector V.S. Meena PW-62, prepared the rough site plan Ex.PW-62/D of the place of the recovery of the body of the deceased; recording therein at points 'A' and 'B' the spots where the body of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conduct of the post-mortem. 24. After the post-mortem, the doctors handed over the clothes and artificial teeth, six in number; viscera of the deceased; vial of sample of preservative used for preserving the viscera of the deceased and one sample seal to SO of PS Gulawati. HC Ajay Pal PW-4, handed over the afore-noted materials as also the materials seized vide memo Ex.PW-23/A; namely, earth lifted from near the canal and water which had oozed out from the body of the deceased; the post-mortem report and its copies and the inquest papers to Inspector V.S. Meena PW-62, vide memo Ex.PW-4/A. 25. Since accused Roshan Singh could not be located in his house, the police flashed a wireless message, Ex.PW-55/A, to all SSP's and DCP's in India to search for Roshan Singh and a Maruti 800 car bearing registration No. DDU 1371 owned by him. Proceedings were initiated to declare him a proclaimed offender. 26. Attempts were made to trace Pusphpender and Nirvikar. On 6.9.2002, Inspector Ram Chander PW-20, along with other police officials was present near PS Tappal, District Aligarh when a secret informer informed him that accused Pushpender is staying in the house of his rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was situated behind village Chajjupur, U.P. and vide pointing out memo Ex.PW-39/B pointed out a spot and stated that said spot is the place of the murder of the deceased. (It may be noted here that the said spot is the same which was told by accused Sharda Jain and Raj Kumar as the spot where the murder of the deceased was committed i.e. the spot was already known to the police). Thereafter, he led the afore-noted police officials to the residence of his brother-in-law situated at village Chajjupur and got recovered an I-card issued in the name of the deceased by ISCKON, from underneath a trunk, which was seized vide memo Ex.PW-39/C. (It may be noted here that in the disclosure statement Ex.PW-39/A made by accused Nirvikar he has not made any mention of any I-card or of the fact that he can get one recovered). 30. On the basis of secret information, the police party, consisting of Inspector V.S. Meena PW-62, SI Anil Kumar Chauhan PW-44 and SI Sukaram Pal PW-39, arrested accused Rajinder Singh at a bus stand situated at JJ Colony, Wazirpur, Delhi, at 8.30 P.M. on 30.09.2002 as recorded in the arrest memo Ex.PW-44/J. On being interrogated by Inspector V.S. Meena PW-62, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property is lying at fourth position from my left and at sixth place from my right. It is pertinent to mention here that the dial, chain and design of wrist watches produced by IO for the purpose of mixing up is similar to that of the case property. The make of wrist watches brought by IO is of different companies and there is no wrist watch of make citizen. (Emphasis Supplied) 34. On 14.10.2002 a secret information was received by Inspector J.R. Uike PW-63, posted at PS Babai, District Hoshangabad, MP, that accused Roshan Singh is present at Rampur Tala near the tube well of Kamal Singh, pursuant whereto he went there and arrested Roshan Singh at 6.10 P.M. in the presence of two public witnesses; namely, Lalit Dubey PW-56 and Ram Bilas PW-57, as recorded in the arrest memo Ex.PW-63/A2. 35. On the next day i.e. 15.11.2002 the SP, Hoshangabad, sent the information, Ex.PW-63/B, about the arrest of Roshan Singh to the Commissioner of Police Delhi, pursuant whereto, Inspector VS Meena, accompanied by Inspector Ram Chander PW-20 and SI Sukaram Pal PW-39, went to Hoshangaband, where after filing an application and getting permission from the court at Hoshangabad, Inspector V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Roshan Singh, being Ex.PW-39/H, Ex.PW-39/J and Ex.PW-39/K respectively. All the seized articles were deposited in the Malkhana on 22.11.2002 as recorded vide entry No. 1642 entered in the store room register (part I) by HC Dinesh Kumar PW-43. 38. Thereafter Roshan Singh led the police officers and pointed out the spots where the deceased was murdered and body of the deceased respectively was thrown into the canal, vide pointing out memos Ex.PW-39/H and Ex.PW-39/N respectively. (It may be noted here that the spot which was pointed out by accused Roshan Singh as the place of the murder of the deceased is the same which was told by accused Sharda Jain and Raj Kumar as the spot where the deceased was murdered i.e. the spot was already known to the police). (It may further be noted here that sketch of one of the pistols recovered at the instance of accused Roshan Singh as also the pointing out memo of the place of murder of the deceased prepared at the instance of Roshan Singh have been exhibited as Ex.PW-39/H i.e. two documents have been given the same exhibit mark.) The mobile phone of the deceased could not be found pursuant to the disclosure statement of accused Roshan Singh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 41. In view of what was told to Inspector V.S. Meena by Subhash, it became apparent that Shri Pal Singh Raghav, Rakesh Kumar and Satender Kumar became suspects regarding the disposal of the dead body. 42. On 11.12.2002 Inspector V.S. Meena, accompanied by SI Sukaram Pal PW-39, went to PS Vijay Nagar, Ghaziabad, UP where he arrested Sripal Singh Raghav and Satender Kumar at 6.00 PM as recorded in the arrest memos Ex.PW-39/T and Ex.PW-39/U. On interrogation by Inspector V.S. Meena, in the presence of SI Sukaram Pal PW-39, accused Sripal Singh Raghav and Satender Kumar made disclosure statements Ex.PW-39/P and Ex.PW-39/Q respectively, wherein they disclosed that along with Roshan Singh and another police officer; namely Rakesh Kumar, they threw the body of the deceased into the canal. Both of them led Inspector V.S. Meena to the place which had already been identified to the police as the place where the deceased as murdered and vide pointing out memos Ex.PW-39/V, Ex.PW-39/X, Ex.PW-39/Y and Ex.PW- 39/W accused Sripal Singh Raghav and Satender Kumar pointed out the place where the dead body of the deceased was lying before it was thrown into the canal and the place where they t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deceased, the tyre of the car of Sharda Jain, two country made pistols and cartridges were sent to the Forensic Science Laboratory for serological/chemical/ballistic examination. 47. Vide CFSL report Ex.P-1, it was opined that the samples of the blood of the parents of the deceased and the sample of the tissue of the body recovered from the canal were subjected for DNA isolation by organic extraction method and that the said sample of tissue belongs to the male child of the parents of the deceased. Vide FSL reports Ex.PW-41/A and Ex.PW-41/B it was opined that the earth/soil/mud lifted from the place of occurrence was found to be stained with human blood; group whereof could not be determined and that blood could not be detected on the clothes and artificial teeth of the deceased. Vide FSL report Ex.PW-66/A it was opined that the mud/soil lifted from the place of occurrence and the soil/mud found stuck on the tyre of the car of Sharda Jain were similar in physical characteristics. Vide FSL report Ex.PW-50/A it was opined that the pistols recovered at the instance of Roshan Singh are of 315 bore, designed to fire a standard 8 mm/.315 bore and are in working order in their presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvikar fired shots at the deceased and caused his death. Thereafter Sharda Jain along with Rajinder Singh left the spot and asked the other accused persons to dispose of the body of the deceased. Roshan Singh asked the remaining accused persons; namely, Raj Kumar, Pushpender and Nirvikar to disperse and told them that they would come back to said spot in the evening to dispose of the body of the deceased. Before dispersing from the place of the crime, the said accused persons removed the I-cards, wrist watch and gold ring of the deceased. However, everything did not work out according to their plan inasmuch as Subash, who is a resident of village Chajjupur, got knowledge about the presence of a body at the place in question. Notwithstanding the said obstacle, Roshan Singh, with the aid accused Sripal Singh Raghav, Rakesh Kumar and Satender Kumar managed to dispose of the body of the deceased by throwing the same in the canal flowing near the place where the deceased was murdered. 49. Charges were framed against the accused Sharda Jain, Raj Kumar, Rajinder Singh, Roshan Singh, Pushpender and Nirvikar under Section 120-B, Section 364 read with Section 120-B and Section 302 read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I Shiv Raj Singh PW-55, deposed that the endorsement Ex.PW-55/C was recorded by him at 12.05 PM on 25.08.2002. No suggestion was given to the said witness in his cross-examination regarding the recording of the said endorsement. Jitender PW-25, deposed having handed over the endorsement Ex.PW-55/C to the duty officer at Police Station Keshav Puram. HC Savitri PW-27, deposed having registered FIR Ex.PW-27/A at 12.20 PM on 25.08.2002. HC Sher Singh PW-35, deposed having delivered copies of the FIR to the Ilaqa Magistrate and senior police officers. B Witnesses to prove last seen, suspicious conduct of Sharda Jain and factum of hatching of conspiracy by the accused persons:- Sumitra Gupta PW-18, Prabhu Yadav PW-17, Manish PW-14, Om Prakash Chauhan PW-11 and Rajinder Pal Gupta PW-9. 53. Sumitra Gupta PW-18, the wife of the deceased, deposed that on 24.08.2002, at about 10.15 AM the deceased left his residence in his Indica car bearing registration No. DL 6SA 0025, which was driven by his driver Prabhu Yadav. Before leaving the house, the deceased told her that he would first go to the house of Sharda Jain and thereafter would proceed to a rally along with Sharda Jain. She deposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the car of Sharda Jain, being driven by Om Prakash Chauhan, the driver of Sharda Jain. On returning the residence of the deceased, he handed over the keys of the car of the deceased to the wife of the deceased and told her that accompanied by Sharda Jain the deceased had gone to attend the rally in the car of Sharda Jain. Thereafter he left for his house. On the same day, at about 05.00 PM he again returned to the residence of the deceased but the deceased was not present there. He remained at the residence of the deceased till about 7.00 PM - 8.00 PM but the deceased did not return. 56. On being cross-examined about the instructions given to him by the deceased on 24.08.2002 at the time when he dropped the deceased at the residence of Sharda Jain, Prabhu Yadav stated (Quote): 'When Atma Ram Gupta left for rally in the car of Sharda Jain he had told me to come to his house at 05.00 PM and he had not told me that I should come to Kamal Clinic of Dr.Mahender Pal Gupta'. It may be noted here that save and except asking aforesaid question, the testimony of the said witness was not controverted by the defence. 57. Om Parkash Chauhan PW-11, the driver of Sharda Jain, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en days prior to 24.08.2002, Accused Raj Kumar along with two other persons whom he cannot identify, had come to the residence of Sharda Jain. He denied having listened to any talks between Sharda Jain, Raj Kumar and said two persons regarding payment in sum of ₹ 1 lakh or that he had given any such statement to the police. He stated that on 22.08.2002 Raj Kumar along with said two persons again came to the residence of Sharda Jain. On being confronted with his statement Ex.PW-11/DA wherein it was recorded that accused Sharda Jain had come to his residence and threatened him in the intervening night of 24/25.08.2002, he stated (Quote): 'It is incorrect to suggest that in the night at about 12:00 of 24.8.2002 Sharda Jain had also come to my house or that she told me that I should not tell to anybody that Atma Ram Gupta was also with her on that day otherwise consequences would not be good nor I so stated to the police. Confronted with portion C to C of mark PW-11/A where it is so recorded'. 60. On being cross-examined by the defence about the visit of accused Raj Kumar to the residence of accused Sharda Jain on 22.08.2002, he stated that he had not seen any person a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t about 12 noon. On the way after returning from the rally, his car was moving behind a car in which the deceased along with Sharda Jain and accused Rajinder Singh were traveling and that the said car was being driven by the driver of Sharda Jain. He saw that the said car stopped near the red light at Nigam Bodh Ghat, whereupon the driver of the car got down and started walking towards ISBT. He made enquiries from the deceased, who told him that driver of Sharda Jain has left as he was not feeling well and that accused Rajinder would drive the car in the absence of the driver of Sharda Jain. Thereafter, accused Rajinder sat on the driver's seat and drove the car towards ISBT. That he first identified accused Rajinder on 2.10.2002 at PS Keshav Puram when he had gone there to lodge a report about his mobile phone being missing. 64. On being cross-examined about his mobile phone being missing, Manish stated (Quote): 'I had lost my mobile phone and therefore, I had gone to the PS Keshav Puram on 2.10.2002 to make report about it. I did not so tell to the police in my statement under Section 161 Cr.P.C. The report about the missing of the mobile phone was not recorded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss-examined about his presence at the residence of the deceased on 24.08.2002 at the time when the deceased left the residence of Sharda Jain, Rajinder Pal Gupta stated (Quote): 'On 24.8.2002 Atma Ram Gupta had left the house to attend the Congress Rally in my presence. Volt : I have my office in Tri Nagar where I go daily. I usually used to go to the house of my brother Atma Ram Gupta. If the police had asked me if Atma Ram Gupta left his house in my presence on 24.8.2002 then I must have so stated. At this stage the defence counsel has asked the witness to go through his Ex.PW9/C and then answer if Atma Ram Gupta had left the house in his presence. The witness has stated that it is not so written in Ex.PW9/C.' C Witnesses to prove the deposit of the wrist watch and the gold ring of the deceased recovered at the instance of accused Raj Kumar and Roshan Singh in the Malkhana:- Inspector V.S. Meena PW-62 and HC Dinesh Kumar PW-43. 67. Inspector V.S. Meena PW-62, deposed that the wrist watch and the gold ring of the deceased recovered at the instance of accused Raj Kumar and Roshan Singh respectively were deposited by him in the Malkhana on 28.08.2002 and 22.11.2002 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their cross-examinations). 71. Zaheer Ahmad PW-36, deposed that he runs a tailoring shop in the name and style of 'Lovely Tailors' at Tri Nagar, Delhi. The deceased used to get his clothes stitched by him and that he stitches his label 'Lovely' on the clothes stitched by him. E Witnesses to prove the post-mortem report of the deceased:- Dr. S.K. Aggarwal PW-21. 72. Dr. S.K. Aggarwal PW-21, deposed that he conducted the post-mortem of the deceased on 31.08.2002 and that the post-mortem report Ex.PW-21/A as also the report Ex.P-W21/B regarding the opinion on the weapon of offence were prepared by him. F Witnesses to prove the reports submitted by the Forensic Science Laboratoy:- A.K.Srivastava PW-41, Sri Narain PW-42, K.C. Varsheny PW-50, Dr.Rajinder Kumar PW-59 and Dr. Swaroop Vedanand PW-66. 73. A.K. Srivastava PW-41, deposed that the FSL reports Ex.PW-41/A and Ex.PW-41/B were prepared by him. Sri Narain PW-42, deposed that the FSL report dated 29.01.2003 was prepared by him. It is noted here that the two witnesses were not subjected to any cross-examination on behalf of the accused persons. 74. K.C. Varshney PW-50, deposed that the FSL report Ex.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deceased on the same day. He further deposed that the membership of the deceased expired on 31.12.1995. Yadukuleshwar Dass PW-5, Vice-President of International Society for Krishna Consciousness (ISCKON), deposed that the deceased was a member of ISCKON and that the I-card Ex.PW-5/A recovered at the instance of accused Nirvikar was issued to the deceased. It may be noted here that the testimony of the said two witnesses was not controverted by the defence. 78. Rajinder Pal Gupta PW-9 and Sumitra Gupta PW-18, the younger brother and the wife respectively of the deceased, deposed that they had identified the wrist watch Ex.P-4 and the ring Ex.PW-18/1 of the deceased in a Test Identification proceedings. On being questioned about the wrist watch in question, Rajinder Pal Gupta stated (Quote): 'Atma Ram Gupta had gone to Singapur perhaps in the year 1996 and from where he had brought the wrist watch Ex. P-4 but I was not present when he purchased the watch.... It is correct that there is no special mark of identification on the wrist watch of Atma Ram Gupta.... Atma Ram Gupta had other wrist watches also but however after he had brought the wrist watch Ex.P-4 from Singapur, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 to 26.08.2002 during the course of the investigation of the present case. He further deposed that on the basis of the said record he prepared a chart, Ex.PW-62/A1 which shows the movement of the mobile phone No. 9811508688 on 24.8.2002. 85. At this juncture, it may be noted that the call details pertaining to the mobile No. 9811508688 for the date 24.08.2002 contained in the call records Ex.PW-34/A and Ex.PW-62/A are exactly the same. I Witnesses to prove the motive of Sharda Jain to murder the deceased:- Mahender Pal Gupta PW-8, Captain Dr.Satish Chand Rajput PW-3, Const.Satbir Singh PW-7, ASI Baljeet Singh PW-19, Dr.Sunil Markan PW-24, HC Bhagirath PW-28 and Tariq Nasir PW-58. 86. Mahender Pal Gupta PW-8, a friend of the deceased, deposed that he runs a medical clinic at Keshav Puram, Delhi and that Sharda Jain used to visit his clinic along with the deceased. The deceased provided help to Sharda Jain when she contested elections for the post of Municipal Councilor and that Sharda Jain was having her office at a premises situated at Keshav Puram, which premises were provided by him to Sharda Jain at the request of the deceased. After Sharda Jain was elected as councilo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of her said relations with Atma Ram Gupta, she left her husband. (confronted with statement mark PW8/C, now exhibited as Ex.PW8/DA where it is no recorded) I do not recollect the date but it was month of July 2002 when Sharda Jain told me the facts that I have deposed today I did not tell police that those facts were told to me by Sharda Jain in the month of July 2002. 88. Dr.Satish Chand Rajput PW-3, deposed that he runs a dental clinic at Vivek Vihar, Delhi. He deposed that the deceased visited his clinic on four dates, namely, 13/20/21/23 August 2002. On 30.07.2002 the deceased visited his clinic after the visiting hours. The deceased was accompanied by Sharda Jain in some of the visits. On 20.08.2002 he put an artificial denture from upper first canine to upper right canine in the jaw of the deceased. During one of the aforesaid visits, Sharda Jain told him that she would make payment for the treatment rendered by him to the deceased. That the photostat copies of the record of the visit and treatment given to Shri Atma Ram Gupta on 30.7.2002, 13.8.2002, 20.8.2002, 21.8.2002 and 23.8.2002 are Ex.PW-3/A to Ex.PW-3/E. (It be noted here that the entries pertaining to the visit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded on the intervening night of 24/25.10.2000 therefore, it is clear that either the witness has inadvertently deposed regarding the date in question or that there has been a typographical error at the time of the recording of the evidence). 93. ASI Baljeet Singh PW-19, deposed that he conducted investigation pertaining to the incident dated 25.10.2000 of consumption of sulfas tablets by Sharda Jain and that he prepared two DD entries Ex.PW-19/A and Ex.PW-19/B in said regard. It may be noted here that DD entry Ex.PW-19/B records that Sharda Jain gave a statement to the police to the effect that she inadvertently consumed sulfas tablets for the reason she was suffering from an illness as also was tense on account of the fact that her husband left for Madras but did not return home in spite of considerable time lapsing. 94. Dr.Sunil Marken PW-24, deposed that on 25.10.2000, Sharda Jain was admitted at Maharaja Agarsen Hospital as she had consumed sulfas tablets and that he prepared the MLC Ex.PW-24/A pertaining to Sharda Jain in said regard. 95. HC Bhagirath PW-28, deposed that on 27.03.2001 Sharda Jain visited police post Shanti Nagar and lodged a report that her husban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police official to inform about the above incident. 99. Mahender Pal Gupta PW-8, a friend of the deceased, deposed that on 28.08.2002, while he was sitting at his clinic, he saw a news item on TV, regarding the deceased being missing. He further learnt from the news item that the police, along with accused Sharda Jain, Raj Kumar and Raju had gone to village Chajjupur in connection with the present case. On reaching the rajwaha situated at village Chajjupur, he saw that accused Sharda Jain, Raj Kumar, Raju and Roshan Singh were present there. He further deposed that the police was making inquiry from accused Roshan Singh and that he does not recollect whether other accused persons; namely, Sharda Jain, Raj Kumar and Raju took part in the investigation. He stated that he appended his signatures on certain papers prepared in connection with the inquiries made from accused Roshan Singh as also signed the pointing out memos Ex.PW-8/A and Ex.PW-8/B of accused Sharda Jain and Raj Kumar. He identified accused Raj Kumar, Rajinder and Roshan Singh as the persons who were present at village Chajjupur on 28.08.2002. He also deposed that accused Rajinder is Raju. 100. On being cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious exhibits for forensic opinion and the reports received. Since, while noting the case of the prosecution with reference to the contemporaneous investigation allegedly conducted, where role of Inspector V.S. Meena has been extensively noted, we are not noting his testimony which is fairly lengthy, but clarify that would be noting such parts thereof as are relevant to be noted while dealing with the submissions made during arguments in the appeals. 105. In the backdrop of the aforesaid evidence led by the prosecution, the accused were examined under Section 313 Cr.P.C. 106. In her examination under Section 313 Cr.P.C., accused Sharda Jain stated that she is innocent and denied everything save and except admitted that she and Atma Ram Gupta in the company of accused Rajinder left her residence on 24.8.2002 to attend a Congress rally. She also admitted that after the rally Atma Ram Gupta left in her car but stated that he got down at ISBT. She also admitted that accused Raj Kumar is her brother. Everything else was denied by her. Her admissions afore-noted are contained in the answers to question No. 18, 20 and 27 which are as under: Ques 18: It is in evidence against you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , SO of PS Gulawati. But how, they failed to disclose. 111. The accused led no evidence in their defence. ANALYSIS OF THE IMPUGNED JUDGMENT 112. After considering the evidence led by the prosecution as also the arguments advanced by the defence, vide impugned judgment and order dated 21.12.2006, the learned Trial Court drew 7 conclusions; namely, (i) that on 24.8.2002 the deceased was last seen alive in the company of accused Sharda Jain and Rajinder Singh; (ii) that the date of death of the deceased is 24.08.2002; (iii) that the prosecution has been able to establish the motive of Sharda Jain to do away with the deceased; (iv) that a false claim was made by Sharda Jain that she was not present at Ghaziabad on 24.08.2002 (v) that the testimony of Mahender Pal Gupta PW-8, that he had seen the wrist watch on hand of the deceased at the time of the recovery of the body of the deceased and photographs Ex.DX and Ex.DX-1 do not dent the case of the prosecution regarding the recovery of wrist watch of the deceased at the instance of accused Raj Kumar; (vi) that the testimony of Om Parkash Chauhan PW-11, the driver of Sharda Jain and Shanti PW-10, establish the suspicious conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (iv), learned Trial Court held that (i) a cumulative reading of the call record Ex.PW-62/A of the mobile number of Sharda Jain and the Cell ID Chart Ex.PW-65/A which shows the locations of various towers installed by the cellular company at Delhi and NCR establishes that the mobile phone of Sharda Jain was present at Ghaziabad on 24.08.2002 inasmuch as incoming/outgoing calls were received/made on/from the mobile phone of Sharda Jain on the said day; and (ii) if the claim of Sharda Jain that she did not visit Ghaziabad on 24.08.2002 was correct, it was incumbent upon her to explain as to how the calls made/received to/from her mobile phone came to be routed through the towers installed at Ghaziabad and she failed to do so. 117. As regards conclusion (v), the learned Trial Court held that (i) mark of wrist watch seen in the hand of the deceased in photographs Ex.DX and Ex.DX-1 is of no consequence for the reason some marks appear on the wrist, when a person regularly wears a watch on his wrist; (ii) testimony of Inspector V.S. Meena PW-62 and HC Dinesh Kumar PW-43 that the said wrist watch was deposited in the Malkhana on 28.08.2002 was not controverted by the defence; and (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal conspiracy with the other accused persons to cause disappearance of the evidence of murder of the deceased, the learned Trial Court acquitted them of the charge framed against them for having committed the offence punishable under Section 120-B IPC. However, the learned Trial Court convicted the said three police officials under Section 201 IPC for causing disappearance of the evidence of the murder of the deceased. 121. The circumstances used by the learned Trial Court for convicting accused Sharda Jain are that (i) Sharda Jain pointed out the place of the murder of the deceased; (ii) the deceased was last seen alive in the company of Sharda Jain and that the time gap between the last seen and time of the death of the deceased is so small that it makes the possibility that the deceased could have come in the contact of any other person too remote; (iii) no plausible explanation was given by Sharda Jain as to how and when the deceased parted company with her on 24.08.2002; (iv) a false claim was made by Sharda Jain that she did not visit Ghaziabad on 24.08.2002; (v) Sharda Jain misled the family members of the deceased when they made enquiries from her about the wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Singh, Pushpender and Nirvikar; (iv) recovery of two country made pistols and the gold ring of the deceased at the instance of Roshan Singh; (v) Roshan Singh was arrested from Hoshangabad, M.P. and he failed to give any reason for his presence at M.P.; (vi) Roshan Singh failed to give any reason for his false implication in the present case; (vii) Roshan Singh pointed out the place of murder and disposal of the body of the deceased and (viii) the disclosure statement of Raj Kumar provided leads to the police. 125. The circumstances used by the learned Trial Court for convicting accused Pushpender and Nirvikar are (i) recovery of I-cards of the deceased at the instance of Pushpender and Nirvikar; (ii) Pushpender and Nirvikar were in need of a job inasmuch as said fact was not disputed by them; (iii) Pushpender and Nirvikar pointed out the place of murder of the deceased and (iv) disclosure statements of Pushpender and Nirvikar provided leads to the police. 126. The circumstances used by the learned Trial Court for convicting accused Sripal Singh Raghav, Satender Kumar and Rakesh Kumar are that (i) testimony of Subash PW-38, establishes that aforesaid police officials pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentences were directed to run concurrently. LAW OF CONSPIRACY 128. As conspiracy is the primary charge against the accused, we first advert to the law of conspiracy - its definition, essential features and proof. 129. Section 120-A defines 'criminal conspiracy' as under: Definition of criminal conspiracy - When two or more person agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Explanation: - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 130. It is clear from the above noted definition of 'criminal conspiracy' that the three essential elements of offence of conspiracy are (a) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (See the decision of Supreme Court reported as State v. Nalini (1999) 5 SCC 253) B The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (See the decisions of Supreme Court reported as Shivnarayan Laxminarayan Joshi v. State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v. State AIR 1988 SC 1883) E A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him, is fully applicable in cases of proof of conspiracy. The courts have added two riders to aforesaid principle; namely, (i) there should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links can only be inferred from the proved facts and (ii) it cannot be said that the prosecution must meet any and every hypothesis put forward by the accused however farfetched and fanciful it may might be. (See the decision of Supreme Court reported as Gagan Kanojia v. State of Punjab (2006) 13 SCC 516) 137. The question which arises for consideration is, what does the expression 'proved beyond reasonable doubt' occurring in the afore-noted cardinal rule of circumstantial evidence signify. Does it mean that the prosecution is required to prove its case with hundred percent certainty? 138. The answer to the aforesaid question can be found in the following observations of Supreme Court in the decision reported as Lal Singh v. State of Gujarat AIR 2001 SC 746: The learned Sr. Counsel Mr. Sushil Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, to act upon the supposition that it exists. This definition of 'proved' does not draw any distinction between circumstantial and other evidence. The use of expression 'determinative tendency' in the afore-noted rule also seconds the view that the prosecution is not required to adduce such evidence which absolutely proves the guilt of an accused person. Thus, circumstantial evidence in order to furnish a basis for conviction requires a high degree of probability, that is, so sufficiently high that a prudent man considering all the facts, feels justified in holding that the accused has committed the crime. (See the decisions of Supreme Court reported as State of Maharashtra v. Mohd. Yakub AIR 1980 SC 1111 and Gokaraju Venkatanarasa Raju v. State of AP (1993) Supp (4) SCC 191) 140. The approach to be adopted by the courts while appreciating circumstantial evidence was succinctly stated by Supreme in the decision reported as M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 in following terms: It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deceased by accused Sharda Jain. 143. That being the case, we first proceed to undertake an inquiry whether the evidence led by the prosecution to prove the pointing out of alleged place of murder of the deceased by accused Sharda Jain is creditworthy and that whether the spot pointed out by accused Sharda Jain (herein after referred to as the Spot A ) is the place of murder of the deceased. 144. To establish the pointing out of spot A by accused Sharda Jain, the prosecution has examined the police officials namely Inspector V.S. Meena PW-62, HC Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar Chauhan PW-44 and SI Shiv Raj Singh PW-55 and one Mahender Pal Gupta PW-8, the friend of the deceased. 145. The testimony of Mahender Pal Gupta PW-8, needs to be viewed with great caution. Having perused the evidence of Mahender Pal Gupta during the course of arguments of the present case, we have come to the conclusion that Mahender Pal Gupta is a witness who lives in an imaginary world and loves to revel himself. There is hardly any relevant aspect of the case of the prosecution on which Mahender Pal Gupta has not given evidence. 146. A perusal of the testimony of Mahender Pal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngini 24 C.W.N. 626 PC, the Privy Council had this to say (at 628): That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence. 18. In Abdul Gani v. State of Madhya Pradesh AIR 1954 SC 31 Mahajan, J. speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff. 19. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased was recovered. 155. Having noted the undisputed facts emerging from the evidence on record, we proceed to deal with the facts sought to be established by the prosecution to prove that spot A is the place of murder of the deceased. 156. The first fact sought to be established by the prosecution is that human blood was found at spot A. To establish the said fact, the prosecution placed reliance upon the testimonies of the police officials who participated in the investigation of the present case on 28.08.2002 namely HC Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar Chauhan PW-44 and Inspector V.S. Meena PW-62 and the FSL reports Ex.PW-41/A and Ex.PW-41/B. 157. The aforesaid police officials deposed that the soil at spot A was found to be stained with blood at three different points and the said blood stained soil was lifted and seized vide memo Ex.PW-44/D. The aforesaid testimony of the witnesses could not be shaken in the cross-examination. 158. As already noted in foregoing paras, the FSL reports Ex.PW-41/A and Ex.PW-41/B record that soil lifted from spot A is found to be stained with human blood, group whereof could not be determined. 159. At this junctur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned senior counsel was that the fact that exhibit 1B did not reach the FSL strongly suggests that the exhibits containing soil lifted from spot A were tampered with and therefore, no reliance could be placed upon the FSL reports Ex.PW-41/A and Ex.PW-41/B. 166. To solve the mystery surrounding the disappearance of exhibit 1B, it is most necessary to note the endorsement dated 28.11.2002 made in the entry No. 1560 that on 28.11.2002 SI Anil Kumar Chauhan PW-44, collected the jaw and piece of flesh of the deceased as also blood stained soil from the FSL and deposited the same at Malkhana. (It may be noted here that SI Anil Kumar Chauhan PW-44, deposed to the same effect and that he was not cross-examined on the said point) 167. A perusal of the FSL reports Ex.PW-41/A and Ex.PW-41/B shows that the same were prepared on 29.01.2003, meaning thereby, that the blood stained soil was present at FSL on 29.01.2003. Now, the question is, that if blood stained soil was present at FSL on 29.01.2003 then what was collected on 28.11.2002. The answer is clear. Exhibit 1B was collected from the FSL on 28.11.2002 while exhibits 1 and 1A remained deposited at the FSL and that is the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the soil in question till the time the same remained in their possession has not been controverted by the defence. 175. It is settled law that where a witness is not cross-examined on any relevant aspect, the correctness of the statement made by a witness cannot be disputed. (See the decisions of Supreme Court reported as State of U.P. v. Nahar Singh AIR 1988 SC 1328 and Rajinder Prasad v. Darshana Devi AIR 2001 SC 3207). 176. In view of the above discussion, we find no merit in the submission of the defence that the soil lifted from spot A was tampered with before being deposited at the FSL. We further hold that the prosecution has been able to establish that the soil lifted from spot A was found to be stained with human blood. 177. The next fact sought to be established by the prosecution is that the mud found stuck on the tyre of Sharda Jain and the soil lifted from spot A were having similar physical characteristics. To establish the said fact, the prosecution placed reliance upon the testimonies of the police officials who participated in the investigation of the present case on 27/28.08.2002 namely Inspector Shiv Raj Singh PW-55, HC Sunita PW-31, SI Ram Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such persons are called experts. 183. Section 45 permits only the opinion of an expert to be cited in evidence. This requires determination of the question as to who is an expert. The only guidance in the section is that he should be a person specially skilled on the matter. Thus, the only definition of an expert available in Evidence Act is that he is a person specially skilled in the subject on which he testifies. The section does not refer to any particular attainment, standard of study or experience, which would qualify a person to give evidence as an expert. The next question is what is the criteria for determining whether a witness is specially skilled or not. The answer to this question is to be found in decision of Supreme Court in Jai Lal's case (supra) wherein it was held that in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting expert as sufficient basis for conviction, but that it may be relied upon when supported by other items of internal and external evidence. 189. In view of the above discussion, we find no merit in the submission of learned senior counsel that Dr. Swaroop Vedanand cannot be considered as an 'expert' on the subject of determination of physical properties of the soil as he had not studied any course in geology. 190. Having repelled the argument advanced by the learned senior counsel, we hold that the prosecution has been able to establish that car of Sharda Jain was driven to a spot where the soil found therein was having similar physical characteristics as soil found at spot A. 191. The next fact sought to be established by the prosecution is that Sharda Jain was present in the vicinity of spot A on 24.08.2002 i.e. the day of the murder of the deceased. To establish the said fact, reliance was placed by the prosecution upon the call records Ex.PW-34/A and Ex.PW-62/A and the testimony of Om Parkash Chauhan PW-11, the driver of Sharda Jain. 192. With respect to the call records Ex.PW-34/A and Ex.PW-62/A, it was strenuously argued by learned senior counsel for S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regular carried out on over that period as mentioned in Clause (a) of Sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with or without human intervention) by means of any appropriate equipment. 197. Thus, computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. 198. Sub-section (1) of Section 65B makes admissible as a document, paper print-out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the conditions specified in Sub-section (2) of Section 65B. Following are the conditions specified by Sub-section (2): a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used; b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer; c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy; d) Information reproduced is such as is fed into computer in the ordinary course of activity. 199. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A and Ex.PW-62/ can be proved by adducing secondary evidence in terms of Section 63 of Evidence Act or by complying conditions specified in Sub-section (2) or Sub-section (4) of Section 65B of Evidence Act. 205. In the instant case, the moot question is whether the call records have been proved in terms of Section 63 or Section 65B(2) or Section 65B(4). 206. Inspector V.S. Meena PW-62, has merely deposed that on 25.08.2002 he obtained the print out Ex.PW-62/A of the call records of mobile number 9811508688 and that the said number is registered in the name of Sharda Jain. 207. As already noted in foregoing paras, Gulshan Arora PW-34, deposed that he has brought the record pertaining to mobile number 9811508688. As per the record, Ex.PW-34/A is the call record of the said mobile number pertaining to the period 24.08.2002 to 26.08.2002. 208. In the instant case, the call records Ex.PW-34/A and Ex.PW-62/A could not have been proved by any of the modes prescribed under Section 63 of Evidence Act. Admittedly, no certificate in terms of Section 65B(4) has been issued in the present case. The testimonies of Inspector V.S. Meena and Gulshan Arora also do not fulfil the conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nificant one and 'otherwise relevant' having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. 50. Reading Section 161(2) of the Criminal Procedure Code with the Explanation to Section 162, an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness. In this case the Investigating Officer, PW 13 was not asked whether he had put questions to Gurdeep Kaur asking for details of the injuries inflicted or of the persons who had caused the injuries. 214. In the instant case, when the attention of Om Parkash Chauhan was drawn towards the said omission, he stated that he disclosed the said fact to the police at the time when his statement was recorded by the police. Inspector Shiv Raj Singh PW-55, the scribe of the statement Ex.PW-11/DA was not asked by defence that whether he put question to Om Parkash Chauhan asking for details as to what all transpired in the car of Sharda Jain on 24.08.2002. 215. In view of the dictum laid down by Supreme Court in Jaswant Singh's case (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chauhan that car of Sharda Jain was to proceed towards Ghaziabad on 24.08.2002 and that mud found stuck on her tyre had similar physical characterstics as soil found at spot A. 222. The necessary corollary which emerges from the above fact that Sharda Jain was present at/around Ghazibad on 24.08.2002 is that Sharda Jain made a false claim in her examination under Section 313 Cr.P.C. that she did not go towards Ghaziabad on 24.08.2002. 223. Another proved fact is that the deceased died on 24.08.2002 and that the deceased was last seen alive in the company of Sharda Jain in the afternoon of 24.08.2002. (We shall be discussing the evidence pertaining to last seen led by the prosecution shortly herein after) 224. The facts which emerge from the above discussion can be enumerated as under: (i) The body of the deceased was found in a canal. (ii) Spot A is near the canal in which the body of the deceased was found downstream. (iii) The deceased was first murdered and thereafter his body was thrown into the canal. (iv) Spot A is upstream of the spot where the body of the deceased was recovered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt reported as Prakash Chand v. State AIR 1979 SC 400). Therefore, the conduct of Sharda Jain leading the police to place of murder where the deceased was in all probability murdered is admissible under Section 8 of Evidence Act. 227. What turns on the fact that accused Sharda Jain pointed out the place of the murder of the deceased. Sharda Jain could have acquired knowledge that spot A is the place of murder of the deceased only in one of the ways. Either she herself was a party to the conspiracy to murder the deceased and thus was aware that the murder of the deceased was committed at spot A or somebody else who was a party to the conspiracy to murder the deceased told Sharda Jain that spot A is the place of murder of the deceased. No explanation has been offered by Sharda Jain as to how she came to know that spot A is the place of murder of the deceased. In such circumstances, the fact Sharda Jain pointed out the place of murder of the deceased is a strong pointer towards the guilt of Sharda Jain. 228. Last Seen Evidence: The next three circumstances used by the learned Trial Judge to infer the guilt of accused Sharda Jain are predicated upon the fact that the deceased w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the deceased was present with Sharda Jain in the afternoon of 24.08.2002. The deceased was not seen alive by anyone after the afternoon of 24.08.2002. Thus, the fact of the matter is that the deceased was last seen alive in the company of Sharda Jain. 234. In this regards, it is relevant to note the following pertinent observations made by Supreme Court in the decision reported as Mohibur Rahman v. State of Assam AIR 2002 SC 3064: 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 he liability for the homicide. (Emphasis Supplied) 235. A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offered by the accused. 238. In the instant case, there is proximity between the time of last seen and time of death of the deceased inasmuch as the deceased died on 24.08.2002 and he was last seen alive in the company of Sharda Jain in the afternoon of 24.08.2002. The place of murder of the deceased was a secluded area. The explanation offered by Sharda Jain in her examination under Section 313 Cr.P.C. regarding the circumstances in which she parted company with the deceased on 24.08.2002 was that the deceased got down from her at ISBT. Is the said explanation reasonable and satisfactory? The answer is an emphatic No. Sharda Jain has not stated about her movements after the deceased allegedly got down from her car. Sharda Jain denied having gone to vicinity of spot A on 24.08.2002 which claim has been found false by us. 239. In view of the aforesaid facts, the fact that the deceased was last seen alive in the company of Sharda Jain is highly determinative of the guilt of accused Sharda Jain. 240. The next circumstance used by the learned Trial Judge to infer the guilt of Sharda Jain is that Sharda Jain misled the family members of the deceased when they made enquiries fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his aspect of the testimony of PW11 Om Parkash Chauhan cannot be given much credence. (Emphasis Supplied) 246. Although the learned Trial Judge has held that he shall be separately discussing that two persons who came along with accused Raj Kumar to the house of Sharda Jain few days prior to 24.08.2002 were accused Roshan Singh and Rajinder Singh, no such discussion is found in the impugned judgment. 247. The prosecution sought to establish through the testimony of Om Parkash Chauhan PW-11, the driver of Sharda Jain, that accused Raj Kumar along with accused Rajinder and Roshan Singh visited the residence of Sharda Jain on two occasions just few days prior to 24.08.2002 and that suspicious talks took place between Sharda Jain and Roshan Singh during the said visits. However, Om Parkash Chauhan did not support the case of the prosecution and denied that accused Raj Kumar was accompanied by accused Rajinder and Roshan Singh during his visits to the residence of the deceased or that he heard any talks between Sharda Jain and Roshan Singh. 248. Accused Raj Kumar is the brother of Sharda Jain. Being councilor of MCD, Sharda Jain was a public figure and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 2622: Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioral pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. 254. In the backdrop of aforesaid observations of the Supreme Court, when the afore-noted two depositions are read harmoniously, the so-called contradiction pointed out by learned senior counsel is clearly explainable. It is clear that when Shanti was told by the boy that Sharda Jain is calling her son, she perceived that Sharda Jain is present outside her house and has sent the boy inside her house to call her son and on basis of said perc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the witness could have easily been corroborated by the prosecution by adducing evidence to the effect that Memwati Berwala presided over as Chief Guest in a function held at a school. However, no such proof was adduced by the prosecution. Considering the fact that evidence of Mahender Pal Gupta PW-8 has been found to be false in respect of pointing out of place of murder of deceased and identification of the body of the deceased, we do not consider it safe to place any reliance on the aforesaid uncorroborated evidence of Mahender Pal Gupta. 262. A close scrutiny of the evidence of Mahender Pal Gupta reveals that the same suffers from two serious infirmities. As per Mahender Pal Gupta, after getting elected as Municipal Councilor, Sharda Jain told him that she 'has' left her husband because of her liking for the deceased. The election in question was held in July 2002 (The said fact was deposed to by Mahender Pal Gupta). The husband of Sharda Jain left her in the year 2000 as evident from the reading of the contents of the DD entries Ex.PW-28/A and Ex.PW-7/A. Therefore, the deposition of Mahender Pal Gupta that Sharda Jain told him that she left her husband in the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut' were engraved. Nothing turns on the said fact for the reason the denture set recovered from the car of Sharda Jain was not put to Dr. S.C. Rajput. He did not identify the same as prepared by him. Therefore, it has not been established by the prosecution that the denture set in question was made by Dr. S.C. Rajput. 269. Another piece of evidence relied upon by the prosecution to prove the motive of Sharda Jain is that Sharda Jain attempted to commit suicide. Nothing turns on the said fact inasmuch as no evidence is forthcoming on record to show that Sharda Jain attempted to commit suicide on account of failed relationship with the deceased. On the contrary, the evidence, noted in paras 93 to 95 above show that she attempted suicide in the year 2000 when Memwati Barwala was not even in the scene. 270. The last piece of evidence relied upon by the prosecution to prove the motive of Sharda Jain is the photograph Ex.PW-58/A which shows the deceased and Memwati Berwala standing close to each other in a public function. (It may be noted here that the function in question is not the function mentioned by Mahender Pal Gupta in his testimony) By no stretch of imagination, it ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n importance which is not due and (to use the clichi) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy 275. The prosecution has thus established that Sharda Jain was last seen in the company of the deceased in the afternoon of 24.8.2002 and thereafter the deceased went missing. He was killed on the same day. The destination of the deceased and Sharda Jain was Ghaziabad when they were last seen together. The place where the dead body of the deceased was found was a canal flowing from village Chajjupur which is about 20 kms away from Ghaziabad. The spot where the deceased was killed is spot A which was not in the knowledge of the police and its whereabouts surfaced only after Sharda Jain made her disclosure statement. The spot is near the embankment of the canal in which, further downstream the dead body of the deceased was discovered. Sharda Jain tried to mislead the family members of the deceased and had tried to surreptitiously contact her driver in the night with the obvious intention to pressurize him to withhold truth from the police. Said evidence is sufficient wherefrom the guilt of Sharda Jain can be inferred. Assuming that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n very suspicious circumstances are enough to nail her. 276. The net result of the above discussion is that even ignoring the parts of the faulty reasoning of the learned Trial Judge and incriminating circumstances relatable thereto, the prosecution has been able to prove the complicity of accused Sharda Jain in the conspiracy to murder the deceased. CASE AGAINST ACCUSED RAJ KUMAR 277. Visit of accused Raj Kumar to the residence of Sharda Jain: The first circumstance used by the learned Trial Judge to infer the guilt of accused Raj Kumar is that he along with two other persons visited the residence of Sharda Jain on two occasions just few days prior to 24.08.2002. 278. We have already discussed in paras 246 to 248 above that there is nothing incriminating in the conduct of accused Raj Kumar in visiting the residence of Sharda Jain along with two other persons just few days prior to 24.08.2002. 279. Location of residence of accused Raj Kumar: The next circumstance used by the learned Trial Judge to convict accused Raj Kumar is that he is a resident of village Gulawati which is situated in the vicinity of village Chajjupur where the murder of the deceased was committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledge of the police before it was pointed out. In case of Sharda Jain, an assurance is forthcoming from the evidence on record that she did point out spot A inasmuch as spot A was known to her before it was pointed out to police. The said knowledge can be inferred from the proved facts that Sharda Jain was present in the vicinity of spot A on 24.08.2002 and that mud found on the tyre of her car had similar physical characteristics as soil found at spot A. But, in the case of Raj Kumar, no assurance is coming from the evidence on record that he did point out spot A to the police. There is no evidence to show that spot A was known to accused Raj Kumar before it was pointed out to police. It is also relevant to note that HC Sunita PW-31, who was part of the police party which conducted investigation at spot A on 28.08.2002 deposed that (Quote) 'In my presence, accused Raj Kumar had not pointed out any place in village Chajjupur.' In view of aforesaid deposition of HC Sunita PW-31, the possibility that Sharda Jain pointed out spot A to police and pursuant to that accused Raj Kumar was made to point spot A by the police cannot be ruled out. Therefore, accused Raj Kumar is entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Evidence Act in great detail, Supreme Court laid down that aforesaid arguments do not state correct proposition of law. It was held by Supreme Court that expression 'discovery of fact' referred to in Section 27 of Evidence Act cannot be interpreted to mean a pure and simple mental fact or state of mind relating to a physical object dissociated from the recovery of the physical object. In other words it was held that a fact discovered has to relate to an object recovered i.e. the recovery of an object and the discovery of a fact go hand in hand. 292. In view of aforesaid dictum of Supreme Court, the circumstance that investigating agency got lead from the disclosure statement of accused Raj Kumar cannot be used against him. 293. Recovery of wrist watch of the deceased at the instance of accused Raj Kumar: - The last circumstance used by the learned Trial Judge to infer the guilt of accused Raj Kumar is that the wrist watch of the deceased was recovered at his instance. 294. It may be noted here that the watch recovered at the instance of the deceased was not an ordinary watch. The watch was of make Citizen and was having a gold chain. 295. Before proceeding to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abricating the recoveries from the accused persons. (ii) The police might have obtained an article similar to the article possessed by the deceased at the time of his death from the family members of the deceased and use it for the purpose of fabricating the recoveries. (iii) The police might have suppressed some of the articles possessed by the deceased at the time of his death recovered from an accused person and utilized it in inventing a recovery from another accused person. (iv) Article in question might have been recovered from a third party and used by the police in one of the impugned recoveries. 297. The ground of attack taken in the instant case to assail the purported recovery of the watch of the deceased at the instance of the deceased is ground No. (ii) namely, the police might has procured a watch similar to the watch possessed by the deceased at the time of his death and has planted the same on accused Raj Kumar. The said attack is predicated upon the testimony of Mahender Pal Gupta PW-8, the photographs Ex.DX and Ex.DX1 of the body of the deceased taken at the time of its recovery and the manner of conduct of Test Identification of the watch purportedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to the recovery of the body of the deceased shows that Mahender Pal Gupta was as usual living in his imaginary world and that he was not paying much attention to the body of the deceased at the time of its recovery. For instance, Mahender Pal Gupta deposed that artificial teeth were not found in the jaw of the deceased at the time of recovery of the body of the deceased, which deposition is contrary to the recording contained in the post-mortem report Ex.PW-21/A of the deceased that six artificial teeth were found in the jaw of the deceased. The deposition of Rajinder Pal Gupta PW-9, the younger brother of the deceased, that artificial teeth were found in the jaw of the deceased at the time of the recovery of the body of the deceased corroborated the aforesaid recording contained in the post-mortem report of the deceased. 305. In these circumstances, no benefit can be defence from the afore-noted evidence of Mahender Pal Gupta particularly when the evidence pertaining to the date of deposit of the wrist watch in question in the Malkhana has gone unrebutted. 306. The photographs Ex.DX and Ex.DX1 have been minutely looked by us. Nothing much turns on the said photograph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worthy or not. 312. Rajinder Pal Gupta PW-9, the younger brother of the deceased, identified the watch recovered at the instance of accused Raj Kumar as that of the deceased. The witness has deposed that he used to visit the deceased daily and that the deceased was wearing the said watch since the year 1996. Therefore, the witness who had seen the deceased wearing the watch in question almost daily for about six years could have easily identified the watch. Nothing could be elicited from the cross-examination of the witness which could cast a doubt on the veracity of his testimony. 313. In view of above discussion, we hold that the prosecution has been able to establish that a watch was recovered at the instance of accused Raj Kumar and that the said watch belonged to the deceased. 314. The moot question which now merits consideration is, as to what turns on the fact that the wrist watch of the deceased was recovered at the instance of accused Raj Kumar. 315. The deceased was wearing the wrist watch recovered at the instance of accused Raj Kumar on 24.08.2002. Sumitra Gupta PW-18, categorically deposed to the said fact in her testimony. It is significant to note here th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was last seen alive in the company of accused Rajinder Singh. 321. As already noted in foregoing paras, one of the fact which led the learned Trial Court to conclude that the deceased was last seen alive in the company of accused Rajinder Singh is the admission made by accused Sharda Jain in her examination under Section 313 Cr.P.C. that accused Rajinder Singh was present with her and the deceased in her car on 24.08.2002. 322. It is settled law that a statement made by an accused in his examination under Section 313 Cr.P.C. cannot be used against the co-accused. 323. While dealing with Section 342 of the Code (corresponding to Section 313 of present Code) in the decision reported as Narayan Swami v. State of Maharashtra AIR 1968 SC 609 Supreme Court observed as under: We have adverted to the above circumstances, only for the purpose of holding that the learned Sessions Judge, in coming to the conclusion that the appellant is guilty, has placed considerable reliance on the evidence of Dilawar, given in the dacoity case and to his statement, made under Section 342 Cr.P.C., as co-accused, in the present trial. The legal position is quite clear, viz., that the evidence, gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere. In fact, the whole story of the witness that he identified accused Rajinder Singh at the police station when he came there to lodge report about the missing of his mobile phone is seriously dented by the fact that no such report was lodged by him. The explanation offered by him for not lodging the report that the police told him to first look for the mobile phone in his house is not plausible. 328. As already noted herein above, Om Parkash Chauhan PW-11, deposed that accused Rajinder Singh was present in the house of Sharda Jain in the morning of 24.08.2002. That thereafter he traveled along with the deceased and accused Sharda Jain in the car of Sharda Jain for going to Firozshah Kotla ground. He further deposed that when he got down from the car of accused Sharda Jain on 24.08.2002 Sharda Jain told him that accused Rajinder Singh would drive the car in his absence and thereafter he saw accused Rajinder Singh driving the car of Sharda Jain. 329. The aforesaid testimony of Om Parkash Chauhan PW-11, was not seriously challenged on behalf of accused Rajinder Singh inasmuch as during the cross-examination a single suggestion was given to the witness that he was on leave on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sister in charge of the Convent, PW-5. The case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. It was also found as a fact that the deceased was last seen alive only in his company, and that on information furnished by the appellant in the course of investigation, the jewels of the deceased, which were sold to PW-11 by the appellant, were seized. There was clear evidence to prove that those jewels were worn by the deceased at the time when she left the Convent with the appellant. When questioned under Section 313 Cr.P.C., the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In the background of such facts, Supreme Court held: Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever. 340. In this view of the matter, we hold that the fact that the deceased was last seen alive in the company of accused Rajinder Singh is determinative of the guilt of accused Rajinder Singh. 341. False defence taken by accused Rajinder Singh: The next circumstance used by the learned Trial Judge to infer the guilt of accused Rajinder Singh is that a false defence was taken by accused Rajinder Singh. 342. The defence taken by accused Rajinder Singh in his statement under Section 313 CrPC that he does not know Sharda Jain and has never visited her residence has already been found to be false. 343. It is settled law that a false defence taken by an accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The aforesaid circumstance is factually incorrect inasmuch as accused Rajinder Singh in response to question No. 3 put to him in his examination under Section 313 Cr.P.C. has vehemently denied that he was temporarily employed with accused Roshan Singh as a driver. No evidence has been led by the prosecution to show that accused Rajinder Singh and Roshan Singh were known to each other or employment of accused Rajinder Singh with accused Roshan Singh. The only document on record showing the acquaintance of accused Rajinder Singh with accused Roshan Singh is the disclosure statement of accused Rajinder Singh, contents of which document are completely inadmissible in evidence. 348. But we find yet another circumstance which points towards the culpability of accused Rajinder Singh. The same has escaped the notice of the learned Trial Court. 349. It has already been held by us that accused Rajinder Singh was driving the car of Sharda Jain in the afternoon of 24.08.2002 and that the deceased and accused Sharda Jain were present in the said car at that time. It has further been held by us that spot A is the place of murder of the deceased and that Sharda Jain was present at/around sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining to abscondence of accused Roshan Singh were not put to him in his examination under Section 313 CrPC, and therefore, circumstance pertaining to abscondence cannot be used against him. In support of the said submission, counsel placed reliance upon the decision of Supreme Court reported as Sharad Birdhichand Sarda v. State of Maharashtra AIR 1964 SC 1622. 355. It is no doubt true that the underlying object behind Section 313 Cr.P.C. is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provision in Section 313, therefore, makes it obligatory on the court to question the accused on the evidence and circumstances appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and that the accused made a bald denial of all the incriminating circumstances put to him. 359. A perusal of the examination of accused Roshan Singh under Section 313 Cr.P.C. shows that three questions were put to Roshan Singh regarding his abscondence. The first question is question No. 37 in which the fact that a wireless message was flashed to all SSPs and SHOs in India to trace him was put to him. The second question is question No. 43 in which the fact that Inspector V.S. Meena obtained non-bailable warrants against him as he was evading arrest was put to him. The third question is question No. 50 in which the fact that Inspector V.S. Meena sought initiation of proceedings under Section 82-83 Cr.P.C. against him as he was evading arrest was put to him. The response of accused Roshan Singh to the aforesaid questions was ignorance. Therefore, it is not the case that accused was completely unaware of the fact that the prosecution would be using his abscondence as an incriminating circumstance against him. 360. Accused Roshan Singh has not controverted the testimonies of the witnesses examined by the prosecution to establish his abscondence. He made a bald explanation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Roshan Singh pointed out the place from where the body of the deceased was thrown into the canal for the reason there is no evidence to show that the place pointed out by accused Roshan Singh was the place from where the body of the deceased was thrown into the canal. 370. Recovery of country made pistols and the gold ring of the deceased at the instance of accused Roshan Singh: The last circumstance used by the learned Trial Judge to infer the guilt of accused Roshan Singh is that two country made pistols and the gold ring of the deceased were recovered at the instance of accused Roshan Singh. 371. Insofar as recovery of country made pistols is concerned, suffice would it be to state that it is settled legal position that the connection between the object recovered and the offence with which an offence is charged must always be established by evidence 'alinude'. In the instant case, there is no evidence to show that the pistols recovered at the instance of accused Roshan Singh were used to murder the declassed . Therefore, the circumstance pertaining to recovery of country made pistols at the instance of accused Roshan Singh cannot be used as an incriminating piece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a gold ring was recovered at the instance of accused Roshan Singh and that the said ring belonged to the deceased. 377. Testimony of Subash PW-38: The last circumstance used by the learned Trial Judge to infer the guilt of accused Roshan Singh is that the testimony of Subash PW-38, establishes that the body of the deceased was thrown into the canal by accused Roshan Singh. 378. A perusal of the testimony of Subash PW-38, contents whereof has been noted in para 98 above, shows that Subash was an 'inimical witness' evident from the accused Roshan Singh defeated the father of the witness in an election and that Subash was a signatory to a complaint lodged against accused Roshan Singh. 379. Inimical witnesses are not necessarily false witnesses though the fact that said witnesses have personal interest or stake in the matter must put the Court on its guard and thus the evidence of such witnesses must be subjected to close scrutiny. (See the decision of Supreme Court reported as Chander Mohan Tiwari v. State of MP AIR 1992 SC 891. 380. A close scrutiny of evidence of Subash PW-38 reveals that he is not a truthful witness. He claims that through the newspaper repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial decisions. 386. The first decision is Rex v. Jora Hasji 11 Bom H.C.R. 242 wherein West J. observed that we must not under cover of this provision allow the discovery of ordinary articles like lathis, knives, sticks and clothes to be introduced so as to admit what are practically confessions to the police and that the discovery ought to be of a fact which is directly connected with the crime apart from the statement itself. 387. The second decision is State v. Wahid Bux: AIR 1953 All 314 wherein it was observed as under: Further the articles recovered were of a very ordinary type. For instance, from Waliid Bux a Dua, a Jugnu and a patta were recovered. From Dori completely torn coat and a dhoti were recovered. From Chandu a lota, a tumbler, a longe were recovered. Nothing was recovered from the other respondents. These articles were of ordinary kind and could be found with anybody in the village and the witnesses did not point out any special features or marks of identification on them. They were not able to say to whom the articles belonged. In this view of the matter the learned Sessions Judge did not draw any inference from the fact that these articles were recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e led by the prosecution in said regard as also the circumstances surrounding the recoveries in question are suspicious. 395. The membership of the deceased in the organization which has issued the I-card to the deceased purportedly recovered at the instance of accused Pushpender expired in the year 1995. Why would the deceased be carrying an I-card pertaining to a membership which has long expired in his pocket? 396. Ram Chander PW-20, a witness to the recovery of I-card pertaining to accused Pushpender deposed that no I-card was found in the possession of accused Pushpender at the time when he conducted a primary search of accused at the time of his arrest. Where did the I-card materialize from if the same was not found in the primary search? 397. The above two unanswered questions seriously vitiates the case set up by the prosecution with regard to the recovery of I-card of the deceased at the instance of accused Pushpender. 398. With regard to accused Nirvikar, it is most relevant to note that the disclosure statement of Nirvikar does not contain a word about the I-card of the deceased. 399. In this regards, it is most relevant to note following observations of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free from doubt and when two constructions are possible in a criminal trial, the one beneficial to the accused Will have to be adopted. Therefore, this linchpin of the prosecution case ceases to provide any incriminating evidence against the appellant. 400. Accused Nirvikar is on a better footing than the accused before Supreme Court in Pohalaya's case (supra). The disclosure statement of Nirvikar does not contains a word about I-card of the deceased, much less a recording pertaining to authorship of the concealment of the said I-card. 401. In such circumstances, we reject the evidence pertaining to the recovery of the I-cards of the deceased. 402. Unemployment of accused Pushpender and Nirvikar: The next circumstance relied upon by the learned Trial Judge to infer the guilt of accused Pushpender and Nirvikar was that they were unemployed. Merely because accused Pushpender and Nirvikar were unemployed does not mean that they participated in the conspiracy to murder the deceased. 403. Pointing out of place of murder of the deceased by accused Pushpender and Nirvikar: The next circumstance used by the learned Trial Judge to infer the guilt of accused Pushpender and Ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not the sufficient to infer the guilt of an accused person. 411. Pointing out of places of murder of the deceased and the disposal of body of the deceased by accused Roshan Singh: The last circumstance used by the learned Trial Judge to infer the guilt of the police officers pointed out the place of murder of the deceased as also the place from where the body of the deceased was thrown into the canal. 412. Insofar as pointing out of place of murder of the deceased is concerned, nothing turns on the same as the said place was already in the knowledge of the police. Likewise, nothing turns on the fact that the police officers pointed out the place from where the body of the deceased was thrown into the canal for the reason there is no evidence to show that the place pointed out by accused Roshan Singh was the place from where the body of the deceased was thrown into the canal. 413. The end result of the above discussion is that the case set up by the prosecution against accused Sripal Singh, Rakesh Kumar and Satender Kumar fails. CONCLUSION 414. The end result of the journey undertaken by us is that the appeals filed by Sharda Jain and her brother Raj Kumar i.e. Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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