9911796707
TMI Blog2009 (8) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... till late evening and could not be contacted on his mobile phone since the same was switched off. His wife got worried. She contacted the younger brothers of Atma Ram Gupta as also her children and apprised them of the situation. The children of Atma Ram Gupta as also his younger brothers came to his residence and made inquiries from persons who were in contact with Atma Ram Gupta during the day. They could not ascertain the whereabouts of Atma Ram Gupta till midnight and thus Rajinder Pal Gupta PW-9, the younger brother of Atma Ram Gupta, lodged a missing person report at PS Keshav Puram. HC Ashok Kumar PW-6, recorded DD No. 31, Ex.PW-6/A at 1:00 AM on 25.8.2002 in which it stands recorded that on 24.8.2002 at about 10:30 AM Atma Ram Gupta left his residence in his white coloured Indica Car bearing registration No. DL 6SA 0025 which was driven by the driver Prabhu Yadav and that he went to the residence of Sharda Jain, a Member of Indian National Congress and also a Municipal Councillor from Keshav Puram Ward New Delhi. That on reaching the residence of Sharda Jain, Atma Ram sent back his car with the driver and thereafter, in the company of Sharda Jain and another person, Atma Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded the statement Ex.PW-11/DA of Om Parkash, the driver of Sharda Jain, and the statement Ex.PW- 10/A of the mother of Om Parkash namely, Shanti PW-10. 8. In his statement Ex.PW-11/DA, Om Parkash stated that he had driven Sharda Jain and Atma Ram Gupta in the car of Sharda Jain to the venue of the rally at Firozshah Kotla Grounds and that another person named Rajesh @ Raju was also in the car. From the venue of the rally they all left and he drove the car towards ring road. When the car reached the red light near Hanuman Mandir at Jamuna Bazar, Nigam Bodh Ghat, since he was not feeling well, he got down from the car and Rajesh started driving the car. He further stated that Raj Kumar the brother of Sharda Jain, Rajesh @ Raju and a person named Roshan Singh Pradhan had visited the house of Sharda Jain 8-10 days prior to 24.8.2002 and he saw them again in the house of Sharda Jain on 22.8.2002. He heard suspicious talks between Roshan Singh and Sharda Jain. He further disclosed that in the night of 24.8.2002 Sharda Jain had visited his house and had told him not to divulge to anyone that Atma Ram Gupta was in her company in the morning of 24.8.2002. 9. In her statement Ex.PW-10/A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar the brother of Sharda Jain came there and tried to slip away on seeing the police. However, he could not manage to escape and was arrested at 3 P.M. as recorded in the arrest memo Ex.PW-44/A. On being interrogated by Inspector V.S. Meena PW-62, in the presence of Inspector Shiv Raj Singh PW-55 and SI Anil Kumar PW-44, Raj Kumar made a disclosure statement Ex.PW-44/O wherein he disclosed that he was a party to the conspiracy with Sharda Jain and two other persons; namely, Roshan Singh and Rajinder to murder the deceased and that two other persons; namely, Pushpender and Nirvikar were the hired assassins who fired shots at the deceased in pursuance of the said conspiracy. He stated that he could lead the police to the place and identify the same, where the deceased was murdered. He further disclosed that he had removed the wrist watch of the deceased and could get the same recovered. 15. Pursuant to their respective disclosure statements, Sharda Jain and Raj Kumar led the police party consisting of Inspector V.S. Meena PW-62, HC Sunita PW-31, SI Ram Kumar PW-32, SI Anil Kumar Chauhan PW-44 and SI Shiv Raj Singh PW-55 to a Dak Bangla near a Rajwaha (minor canal) situated behind vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kash Gupta PW-15, Rajpal Gupta PW-16, brothers of the deceased and Mahender Pal Gupta PW-8 and Amrit Lal Singhal PW-37, friends of the deceased, identified the body found in the canal as that of the deceased. 20. Since the body of the deceased was found within the jurisdiction of Police Station Gulawati, UP, the police officials of the said police station were joined in the recovery. Inspector V.S. Meena PW-62, informed the duty officer of PS Gulawati by way of a written application Ex.PW-62/C about the recovery of the body of the deceased based whereon Const. Lalit Kumar PW-60, prepared DD Entry Ex.PW-60/B at 5.00 A.M. on 31.08.2002. Taking along a copy of the afore- noted DD Entry, SI Rambir Singh PW-61, reached the canal, lifted the earth from near the canal and water oozing out from the body of the deceased and seized the same vide Ex.PW- 23/A. SI Rambir Singh also prepared inquest report Ex.PW-61/A and other documents pertaining to the recovery and conduct of post-mortem of the deceased. Inspector V.S. Meena PW-62, prepared the rough site plan Ex.PW-62/D of the place of the recovery of the body of the deceased; recording therein at points 'A' and 'B' the spots ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ek prior to the conduct of the post-mortem. 24. After the post-mortem, the doctors handed over the clothes and artificial teeth, six in number; viscera of the deceased; vial of sample of preservative used for preserving the viscera of the deceased and one sample seal to SO of PS Gulawati. HC Ajay Pal PW-4, handed over the afore-noted materials as also the materials seized vide memo Ex.PW-23/A; namely, earth lifted from near the canal and water which had oozed out from the body of the deceased; the post-mortem report and its copies and the inquest papers to Inspector V.S. Meena PW-62, vide memo Ex.PW-4/A. 25. Since accused Roshan Singh could not be located in his house, the police flashed a wireless message, Ex.PW-55/A, to all SSP's and DCP's in India to search for Roshan Singh and a Maruti 800 car bearing registration No. DDU 1371 owned by him. Proceedings were initiated to declare him a proclaimed offender. 26. Attempts were made to trace Pusphpender and Nirvikar. On 6.9.2002, Inspector Ram Chander PW-20, along with other police officials was present near PS Tappal, District Aligarh when a secret informer informed him that accused Pushpender is staying in the house of h ..... 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.S. Meena obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 39. In his disclosure s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 threw the body of the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountry 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 present condition and that the cartridges recovered at the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with Section 120-B IPC for having hatched a conspiracy to abd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded 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 that while leaving the house, the deceased was wearing a watch in his righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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, was the star witness of the prosecution inasmuch as he was examined to prove that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not 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 at the residence of accused Sharda Jain on 22.08.2002 as he was on leave on said day and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 police, rather I was given suggestion first I should search it out in my house. The report about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceased 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 respectively. HC Dinesh Kumar PW-43, also deposed that the said wrist watch and the gold ring were deposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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.PW-50/A was prepared by him. It may be noted here that the witness denied the suggestions that the two pistols exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 used to wear only this watch.' 79. P.K. Jain PW-40, Metropolitan Magistrate Delhi deposed that he conducted the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 councilor, she once came to his clinic and expressed her displeasure over the fact that despite the fact that she is the Chairman of the Education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 visits of the deceased are in lead pencil in the original register which had been perused by us during arguments in the appeal. All other entries pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 husband was missing, based whereon, he recorded DD Entry Ex.PW-28/A. It may be noted here that DD entry Ex.PW-28/A records that Shard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.08.2002, 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-examined about the presence of accused persons at village Chajjupur on 28.08.2002, Mahender Pal GUpta stated (Quote): 'It is corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporaneous 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 that on 24.08.02 Atma Ram Gupta left his house to attend the Congress rally in his Indica Car No. DL6SK 0025 along with his driver Prabhu Yad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of Sharda Jain on 24.08.2002 and (vii) that Subash PW-38, was a truthful witness. 113. As regards conclusion (i), the learned Trial Court has held that the evidence of Sumitra Gupta PW-18, the wife of the deceased, Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lular 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 (iii) no question was put to HC Sajjan Kumar PW-33, who took photographs of the body of the deceased at the time of its recovery in his cross-examination regarding presence of wrist watch on the wrist of the deceased. 118. As regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 whereabouts of the deceased; (vi) two meetings took place between Sharda Jain, Raj Kumar, Rajinder Singh and Roshan Singh at the residence of Sharda Jain just few days prior to 24.08.2002; (vii) the conduct of Sharda Jain of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 played a role in disposing of the body of the deceased; (ii) they were found to be absconding; (iii) they could not give satisfactory reason for their false implication in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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 accomplished; (b) a plan or scheme embodying means to accomplish that object; (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted 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 the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (See the decisions of Supreme Court reported as Shivnarayan Laxminarayan Joshi v. State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v. State AIR 1988 SC 1883) E A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, (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 submitted that prosecution has not proved beyond reasonable doubt all the links relied upon by it. In our view, to say that prosecution has to prove the case with a hundred percent certainty is myth. Since last many years the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Gupta PW-8, contents whereof have been noted in paras 100 and 101 above, reveals that the witness is most gibberish on the point of pointing out of spot A by accused Sharda Jain and Raj Kumar. The witness has nowhere deposed that he witnessed the poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 juncture, a submission advanced by the learned senior counsel pertaining to the purity of the exhibits which contained soil lifted from spot A and were sent to the FSL needs to be noted and considered. 160. To understand the submission advanced by the learned senior counsel, it is necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unding 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 why exhibit 1B does not find a mention in the FSL report Ex.PW-41/A. 168. Be that as it may, no question was put to SI Sukaram Pal PW-39, who deposited the soil in question at the FSL on 05.11.2002, regarding the non-mention of exhibit 1B in the FSL report Ex.PW-41/A. 169. Having given no oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 PW-32, SI Anil Kumar Chauhan PW-44 and Inspector V.S. Meena PW-62 and the FSL report Ex.PW-66/A. 178. Inspector Shiv Raj Singh PW-55, HC Sunita PW-31, SI Anil Kumar Chauhan PW-44 and Inspector V.S. Meena PW-62, deposed that on 27.08.2002 when the investigation was being conducted at the residence of accused Sharda Jain the mud was found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subject. 184. Judged in the said background, can it be said that the fact that deposition of Dr. Swaroop Vedanand PW-66, that he had not studied any course in geology, physical geology or structural geology implies that he was not "specially skilled" to give opinion about the physical properties of soil. 185. Dr. Swaroop Vedanand PW-66, is a high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal 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 Sharda Jain that the said records have not been proved by the prosecution in the manner required by the law and thus their genuineness is in doubt. 193. Section 3 of the Evidence Act, 1872 defines evidence as under: "Evidence" - Evidence means and includes: 1) ----------- 2) all documents including electronic records produced for the inspection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, or one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions specified by Sub-section (2): a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used; b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer; c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy; d) Information reproduced is such as is fed into computer in the ordinary course of activity. 199. Under Sub-section (3) of Section 65B, Sub-section (1) and (2) would apply where single or combination of computers, is used for storage or processing in the regular course of activities and the computers used shall be construed as a single computer. 200. Under Sub-section (5), information shall be taken to be supplied to a computer by means of an appropriate equipment, in the course of normal activities intending to store or process it in the course of activities and a computer output is produced by it whether directly or by mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 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 conditions prescribed under Section 65B(2) of Evidence Act. 209. In that view of the matter, we hold that the prosecution has not been able to prove the call records Ex.PW-34/A and Ex.PW-62/A in the manner required by law. 210. This takes to the analysis of the testimony of Om Parkash Chauhan PW-11, the driver of Sharda Jain. 211. As already noted in foregoing paras, Om Parkash Chauhan PW-11, deposed that on 24.08.2002 that at the time when the deceased and Sharda Jain returned from the rally Sharda Jain instructed him to go towards Ghaziaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eep 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) and the failure of defence to put question pertaining to the omission in question to the scribe of the statement of Om Parkash Chauhan particularly when Om Parkash Chauhan stated that he disclosed the said fact to the police, we find no merit in the aforesaid submission of learned senior counsel of Sharda Jain. 216. Om Parkash Chauhan has withstood the test of cross-examination. There was no reason for Om Parkash Chauhan to give false evidence against Sharda Jain. Thus, we hold that Om Parkash Chauhan has truthfully deposed that Sharda Jain instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arda 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. (v) Human blood was found at spot A. (vi) Car of Sharda Jain was driven to a spot where soil had similar physical characteristics as soil found at point A. Sharda Jain's car was obviously driven on soft soil and she has not explained why it was so driven. (vii) Sharda Jain was present in the vicinity of spot A on 24.08.2002. 225. With reference to our discussion in paras 137 to 139 above, it is apparent that law does not require a 100% standard of proof before a fact can be said to be proved. A fact is proved where on the basis of evidence before it, a reasonable mind would draw a conclusion that the fact is proved. From the testimony ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was last seen alive in the company of accused Sharda Jain. 229. It needs to seen by us that whether the evidence led by the prosecution to establish that the deceased was last seen alive in the company of accused Sharda Jain is creditworthy or not. If yes, what is the effect thereof? 230. To establish the fact that the deceased was last seen alive in the company of accused Sharda Jain, the prosecution examined Sumitra Gupta PW-18, Prabhu Yadav PW-17, Om Parkash Chauhan PW-11 and Manish Gupta PW-14. 231. As already noted in foregoing paras, the evidence of Sumitra Gupta PW-18, the wife of the deceased, that the deceased told her that he would be going to the residence of Sharda Jain at the time of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lose 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. State of Maharashtra AIR 2003 SC 3131. 236. The reasonableness of the explanation offered by the accused as to how and when he parted company with the deceased also has a bearing on the effect of last seen in a case. In the decision reported as State of Rajasthan v. Kashi Ram AIR 2007 SC 144 Supreme Court observed as under: It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us. 239. In view of the aforesaid facts, the fact that the deceased was last seen alive in the company of Sharda Jain is highly determinative of the guilt of accused Sharda Jain. 240. The next circumstance used by the learned Trial Judge to infer the guilt of Sharda Jain is that Sharda Jain misled the family members of the deceased when they made enquiries from her about the whereabouts of the deceased. 241. As already noted in foregoing paras, Sumitra Gupta PW-18, the wife of the deceased, and Rajinder Pal Gupta PW-9, the younger brother of the deceased, deposed that Sharda Jain gave misleading and false answers to them when they made enquiries from her about the whereabouts of the deceased. 242. A comparable situation arose before Supreme Court in the decision reported as Mani Kumar Thapa v. State of Sikkim AIR 2002 SC 2920. In the said case, the accused person in whose company the deceased was last seen misled the investigation. One of the reasons which weighed with Supreme Court in coming to the conclusion that the fact that the deceased was last seen alive in the company of the deceased is determinative of the guilt of the accused person was his conduct of misleading the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution and denied that accused Raj Kumar was accompanied by accused Rajinder and Roshan Singh during his visits to the residence of the deceased or that he heard any talks between Sharda Jain and Roshan Singh. 248. Accused Raj Kumar is the brother of Sharda Jain. Being councilor of MCD, Sharda Jain was a public figure and therefore, number of people would have been visiting the office and residence of Sharda Jain to meet her. The visits in question could have been casual visits of a brother to meet and inquire about well being of his sister. The visits could also have been in connection with the public dealings of Sharda Jain. In such circumstances, the fact that accused Raj Kumar along with two unidentified persons visited the residence of Sharda Jain can hardly be used as an incriminating circumstance against Sharda Jain particularly when what transpired during the said visits is not forthcoming on record. 249. Suspicious conduct of Sharda Jain: The next circumstance used by the learned Trial Judge is that Sharda Jain went to the house of her driver in the late hours of night of 24.08.2002 250. The evidence of Om Parkash Chauhan PW-11, the driver of Sharda Jain, that Sharda Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the so-called contradiction pointed out by learned senior counsel is clearly explainable. It is clear that when Shanti was told by the boy that Sharda Jain is calling her son, she perceived that Sharda Jain is present outside her house and has sent the boy inside her house to call her son and on basis of said perception formed by her, Shanti deposed that Sharda Jain came to her house. 255. A cumulative reading of the afore-noted uncontroverted evidence of Om Parkash PW-11 and Shanti PW-10, establishes that Sharda Jain tried to contact Om Parkash in the late hours of the night of 24.08.2002. The learned Trial Judge has not appreciated the evidence of Om Parkash and Shanti in correct perspective inasmuch as the conclusion drawn by him from the testimony of said witnesses that Sharda Jain visited the residence of Om Parkash in the late hours of the night of 24.08.2002 is incorrect. However, the circumstance that Sharda Jain tried to contact Om Parkash in the late hours of night of 24.08.2002 is equally incriminating. It does not matter that she personally went to the house of her driver or sent somebody to summon him. 256. In view of above discussion, we hold that the conduct of Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said fact was deposed to by Mahender Pal Gupta). The husband of Sharda Jain left her in the year 2000 as evident from the reading of the contents of the DD entries Ex.PW-28/A and Ex.PW-7/A. Therefore, the deposition of Mahender Pal Gupta that Sharda Jain told him that she left her husband in the year 2002 is incorrect. The second infirmity is that Mahender Pal Gupta in his examination-in-chief deposed that Sharda Jain told him that she tried to commit suicide on account of the fact that the deceased was getting close to Memwati Berwala however, in cross-examination he stated that he does not recollect that whether any such fact was told to him by Sharda Jain. That apart, deposition of PW-19 and PW-24, noted in para 93 and 94 above shows that Sharda Jain consumed sulfas on 25.10.2000. 263. This takes us to the remaining evidence adduced by the prosecution to prove the motive of Sharda Jain. 264. Dr. S.C. Rajput PW-3, was examined by the prosecution to prove the factum of close relations between Sharda Jain and the deceased. The close relations were sought to be inferred from the fact that Sharda Jain used to accompany the deceased to his visits to the clinic and that she offered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the photograph Ex.PW-58/A which shows the deceased and Memwati Berwala standing close to each other in a public function. (It may be noted here that the function in question is not the function mentioned by Mahender Pal Gupta in his testimony) By no stretch of imagination, it can be inferred from the mere circumstance that the deceased and Memwati Berwala were standing close to each other that the deceased and Memwati Berwala were having intimate relations. 271. The net result of the above discussion is that the prosecution has not been able to prove the motive of Sharda Jain to commit the murder of the deceased. The prosecution has failed to establish that the deceased was having intimate relations with Sharda Jain or Memwati Berwala. The evidence on record at best shows that the deceased and Sharda Jain were good friends and nothing more. 272. What is the impact of the failure to prove motive in the case set up by the prosecution against accused Sharda Jain. 273. In the decision reported as State of UP v. Babu Ram: (2000) 4 SCC 515 it was held: We are unable to concur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family members of the deceased and had tried to surreptitiously contact her driver in the night with the obvious intention to pressurize him to withhold truth from the police. Said evidence is sufficient wherefrom the guilt of Sharda Jain can be inferred. Assuming that the deceased was not killed at spot A. Removing the said evidence, the chain of circumstances are still complete wherefrom an inference of guilt can be drawn against Sharda Jain. In the decision reported as 2002 (6) SCC 715 Mohibur Rahman and Anr. v. State of Assam, the deceased named Rahul was last seen on 24.1.1991 at 5:00 PM at a bus stand in the company of Taijuddin and Mohibur Rahman and his body was found 13 days after at a distance of 30 km to 40 km from the bus stand where the deceased and the accused were seen last alive. Accused Taijuddin had met the mother and the cousin of the deceased and falsely told them that Rahul i.e. the deceased had eloped with one Balijan Begum. Acquitting Mohibur Rahman holding that the proximity of distance and time having broken, qua Taijuddin the fact that he tried to mislead the relatives of the deceased coupled with his being last seen with the deceased were sufficient evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residence of accused Raj Kumar: The next circumstance used by the learned Trial Judge to convict accused Raj Kumar is that he is a resident of village Gulawati which is situated in the vicinity of village Chajjupur where the murder of the deceased was committed. 280. Merely because Raj Kumar was residing at a place which was situated in the vicinity of the place of the murder of the deceased can hardly be used as an incriminating circumstance against him. It could well be a coincidence that there was close proximity between the place of residence of accused Raj Kumar and place of the murder of the deceased. The view taken by the learned Trial Judge that it cannot be termed as a mere coincidence that accused Raj Kumar is a resident of village Gulawati and that the entire execution of the conspiracy happened to take place at near village Chajjupur, in our opinion is incorrect. 281. Non-denial of accused Raj Kumar to his acquaintance with other accused persons: - The third circumstance used by the learned Trial Judge to convict accused Raj Kumar is that he did not controvert the fact that he was acquainted with accused Roshan Singh and Rajinder during the trial. 282. The aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of aforesaid deposition of HC Sunita PW-31, the possibility that Sharda Jain pointed out spot A to police and pursuant to that accused Raj Kumar was made to point spot A by the police cannot be ruled out. Therefore, accused Raj Kumar is entitled to benefit of doubt on said point. 287. Discovery of clues from the disclosure statement of Raj Kumar: - The next circumstance used by the learned Trial Judge to infer the guilt of accused Raj Kumar is that the disclosure statement of accused Raj Kumar provided clues to the investigating agency. 288. The complicity of accused Pushpender and Nirvikar in the conspiracy to murder the deceased came to the knowledge of the police from the disclosure statement of Raj Kumar. 289. The question which arises is that whether the information provided by an accused person in his disclosure statement, which was not in the knowledge of the police, if receives confirmation by subsequent events, is admissible under Section 27 of Evidence Act. 290. The answer to the above question lies in the decision of Supreme Court reported as State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820. In the said decision, Supreme Court examined the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceased was recovered at his instance. 294. It may be noted here that the watch recovered at the instance of the deceased was not an ordinary watch. The watch was of make Citizen and was having a gold chain. 295. Before proceeding to analyze the evidence pertaining to recovery of the wrist watch of the deceased, we note the following pertinent observations made by Lahore High Court in the decision reported as Shera v. Emperor AIR 1943 Null 5: ... When the evidence of recovery of stolen property is attacked, the Court has to examine the evidence in the light of following alternative hypothesis: (1) The complainant might have been persuaded by the police to state in the first information report that property which in fact was not stolen had been stolen and to hand over such property to the police to be used in fabricating recoveries from the accused persons. This assumes a conspiracy between informant and the police from the very start. (2) The police might have obtained property similar to the stolen property from the complainant or some one else and used it for the purpose of fabricating the recoveries. (3) The police might have suppressed some of the stolen property recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... predicated upon the testimony of Mahender Pal Gupta PW-8, the photographs Ex.DX and Ex.DX1 of the body of the deceased taken at the time of its recovery and the manner of conduct of Test Identification of the watch purportedly recovered at the instance of accused Raj Kumar. 298. On a first blush, the evidence of Mahender Pal Gupta PW-8, a friend of the deceased, that a wrist watch was present on the body of the deceased at the time of its recovery does strikes a discordant note with the case set up by the prosecution with regard to recovery of the wrist watch of the deceased. We therefore, proceed to closely scrutinize the case set up by the prosecution pertaining to the recovery of the wrist watch of the deceased. 299. To prove the recovery of the wrist watch of the deceased, the prosecution examined police officials namely, Inspector V.S. Meena PW-62, Anil Kumar Chauhan PW-44 and SI Shiv Raj Singh PW-55. 300. The aforesaid police officials have deposed that on 28.08.2002 accused Raj Kumar got recovered the wrist watch of the deceased from behind a speaker kept at a ventilator in the balcony of his house. The witnesses have withstood the test of cross-examination. Nothing could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning to the date of deposit of the wrist watch in question in the Malkhana has gone unrebutted. 306. The photographs Ex.DX and Ex.DX1 have been minutely looked by us. Nothing much turns on the said photographs inasmuch as they merely show a mark around the area of the wrist of the deceased. The photographs in question do not establish the presence of a watch on the wrist of the deceased. 307. With regard to the manner of conduct of the Test Identification of the watch recovered at the instance of accused Raj Kumar, the learned senior counsel argued that the Test Identification of the watch in question was conducted in a most unsatisfactory manner, which fact has rendered the evidence pertaining to identification of the watch in question most doubtful. Counsel pointed out that none of the watches mixed with the watch in question in the TIP were of make Citizen which made it very easy for the witness who participated in the TIP to identify the watch recovered at the instance of accused Raj Kumar as that of the deceased. 308. We agree with the learned senior counsel that the conduct of TIP of the watch recovered at the instance of accused Raj Kumar is not up to the mark. Has said f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wrist watch recovered at the instance of accused Raj Kumar on 24.08.2002. Sumitra Gupta PW-18, categorically deposed to the said fact in her testimony. It is significant to note here that said fact was also stated by Sumitra Gupta in her statement Ex.PW-62/DB recorded by the police few hours after the missing of the deceased. 316. In the decision reported as Machi Singh v. State of Punjab AIR 1983 SC 957 one of the factor's which weighed with Supreme Court in coming to the conclusion that the witness in question was a truthful witness was that the version of the incident given by witness in court was similar to the version given by him in his statement to the police which was recorded four hours after the occurrence. 317. The afore-noted decision brings out that a fact which is stated by the witness too soon after the incident generally has a ring of truth attached to it for the reason the witness did not get much time to cook up a false story or embellish facts. 318. The watch which was worn by the deceased on the day of his death i.e. 24.08.2002 was not found on the body of the deceased at the time of its recovery on 31.08.2002 but instead was recovered 3 days prior i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dacoity case and to his statement, made under Section 342 Cr.P.C., as co-accused, in the present trial. The legal position is quite clear, viz., that the evidence, given by Dilawar, in the dacoity case, cannot be used as evidence against the appellant, who had no opportunity to cross-examining Dilawar, in the said case; and the statements of Dilawar, as co-accused, made under Section 342 Cr.P.C., in the present trial, cannot be used against the appellant. We are not certainly inclined to accept the contention of the learned Counsel, for the State, that these very serious illegalities, committed by the learned Sessions Judge, must be considered to have been approved, by the learned Judges of the High Court, when they dismissed the appeal, summarily. In fact, we are inclined to think, that, by dismissing the appeal summarily, the learned Judges of the High Court have omitted to note these serious illegalities, contained in the judgment of the learned Sessions Judge. As to whether there is other evidence, on record, which would justify the conclusion that the appellant has been rightly convicted, is not a matter on which it is necessary for us to embark upon, in this appeal. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y challenged on behalf of accused Rajinder Singh inasmuch as during the cross-examination a single suggestion was given to the witness that he was on leave on 24.08.2002, which suggestion was emphatically denied by the witness. No other suggestion/question was given/put to the witness. 330. In view of the fact that aforesaid testimony of Om Parkash Chauhan has not been seriously challenged by the defence and that Om Parkash Chauhan had no reason to give false evidence against accused Rajinder Singh, we hold conclusion that aforesaid testimony of Om Parkash Chauhan is true. 331. Another fact lends assurance to the above conclusion drawn by us. Rajinder Singh refused to participate in the Test Identification Proceedings on the ground that the witnesses are known to him. The witness who was to identify accused Rajinder Singh in the TIP was Om Parkash Chauhan. The said statement of Rajinder Singh that Om Parkash Chauhan was known to him lends credence to the testimony of Om Parkash Chauhan that he had seen accused Rajinder Singh in the house and car of Sharda Jain on 24.08.2002. 332. The aforesaid testimony of Om Parkash Chauhan establishes two things. One, that the deceased was las ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed. That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. 338. In Ram Gulam Chaudhary and Ors. v. State of Bihar: AIR 2001 SC 2842 the facts proved at the trial were that the deceased boy was brutally assaulted by the appellants. When one of them declared that the boy was still alive and he should be killed, a chhura blow was inflicted on his chest. Thereafter, the appellants carried away the boy who was not seen alive thereafter. The appellants gave no explanation as to what they did after they took away the boy. The question arose whether in such facts Section 106 of the Evidence Act applied. Supreme Court he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never visited her residence has already been found to be false. 343. It is settled law that a false defence taken by an accused can be taken as an additional link in the chain of circumstances against him. 344. In the decision reported as Swapan Patra and Ors. v. State of W.B. : (1999) 9 SCC 242 Supreme Court held as under: It is well settled that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstance to complete the chain. Applying the aforesaid principle, we have no hesitation to hold that the circumstances established in the case complete the chain of circumstances to prove the charge of murder against the appellant Swapan Patra and, therefore, the conviction of appellant Swapan Patra has to be upheld under Section 302 IPC. So far as the other two appellants are concerned, as stated earlier, in the absence of any positive evidence even about their presence in the house at the relevant point of time, it is difficult to rope them in even if all other circumstances narrated earlier are established and, therefore, they are entitled to an order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has further been held by us that spot A is the place of murder of the deceased and that Sharda Jain was present at/around spot A on 24.08.2002. Accused Sharda Jain reached at/around spot A by her car which is evident from the fact that mud found stuck on the tyre of car of Sharda Jain has similar physical characteristics as soil found at spot A. The date of death of the deceased is 24.08.2002. The car of Sharda Jain was found by the police at the residence of Sharda Jain on 27.08.02. How did the car of Sharda Jain come back from spot A? Accused Rajinder Singh has not given any explanation regarding his movements on 24.08.2002. In such circumstances, this Court is justified in inferring from the above proved facts that accused Rajinder Singh drove the car of Sharda Jain which was occupied by Sharda Jain and the deceased to spot A on 24.08.2002 and thereafter he drove the car of Sharda Jain back from spot A after the conspiracy to murder the deceased was executed. 350. The net result of the above discussion is that the prosecution has been able to prove the complicity of accused Rajinder Singh in the conspiracy to murder the deceased. CASE AGAINST ACCUSED ROSHAN SINGH 351. Abscond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the court to question the accused on any incriminating circumstance appearing against him the same cannot ipso facto vitiate the trial unless it is shown that some prejudice was caused to him. 356. In taking said view, we are supported by the decision of Supreme Court reported as Bejoy Chand Patra v. State of WB AIR 1952 SC 105 where it was observed as under: The last contention put forward by the learned Counsel for the appellant was that he was not examined as required by law under Section 342 of the Criminal Procedure Code.... To sustain such an argument as has been put forward, it is not sufficient for the accused merely to show that he has not been fully examined as required by Section 342 of the Criminal Procedure Code, but he must also show that such examination has materially prejudiced him. 357. In this regards, it is also relevant to quote following observations made by Supreme Court in a recent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses examined by the prosecution to establish his abscondence. He made a bald explanation of all the incriminating circumstances put to him, and had no explanation to offer. 361. In such circumstances, keeping in view the afore-noted observations of Supreme Court in Kashi Ram's case (supra) it has to be held that no prejudice has been caused to accused Roshan Singh on account of the fact that the evidence that his car was lying deposited at Malkhana was not put to him under Section 313 Cr.P.C. 362. Close relations of accused Roshan Singh with other accused persons: The next circumstance relied upon the learned Trial Judge is that accused Roshan Singh was closely associated with accused Rajinder Singh, Pushpender and Nirvikar. 363. The aforesaid circumstance cannot be taken as an incriminating circumstance against accused Roshan Singh inasmuch as no evidence has been led by the prosecution to establish that accused Roshan Singh was closely associated with accused Rajinder Singh, Pushpender and Nirvikar. 364. Place of arrest of accused Roshan Singh: The next circumstance against accused Roshan Singh is that he was arrested at Hoshangabad, M.P. and that there was no occa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instance of accused Roshan Singh cannot be used as an incriminating piece of evidence against accused Roshan Singh. 372. Insofar as the recovery of the gold ring of the deceased is concerned, the ground of attack taken by the defence to assail the said recovery is that the family members of the deceased falsely stated that the ring in question was worn by the deceased on 24.08.2002 and the police took the ring in question from wife of the deceased and planted the same on accused Roshan Singh. It be noted here that a suggestion was given to the wife of the deceased that the Investigating Officer collected the ring in question from her on 18.12.2002 for the purposes of planting it upon accused Roshan Singh. 373. It may be noted here that the prosecution examined Inspector V.S. Meena PW-62, SI Sukaram Pal PW-39 and SI Anil Kumar Chauhan PW-44, to prove the said recovery. The aforesaid police officials deposed that a ring was got recovered by accused Roshan Singh from his residence. Sumitra Gupta PW-18, the wife of the deceased and Baldev Kumar PW-52, the jeweler who sold the ring to the deceased identified the ring recovered at the instance of accused Roshan Singh as that of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruthful witness. He claims that through the newspaper reports, after three or four days of the dead body of Atma Ram Gupta being recovered he realized that the dead body of which he had informed Roshan Singh was that of Atma Ram Gupta. How could he do so remains a mystery for the reason Subash does not claim that he saw the dead body about which the children of the village had told him. He has deposed that when the children told him about a dead body near the Dak Bangla he proceeded to inform the police and on the way met Roshan Singh. 381. Another fact which has cast a serious doubt on the testimony of Subash is that Subash did not come forward till about three months to report the police about the facts known to him about the body of the deceased. The learned Trial Court has also noticed the said fact but has not attached due importance to the same on the ground that Subash is a rustic villager and thus it could not be expected of him that he would approach the police on his own particularly when the matter is high profile. The aforesaid explanation given by the learned Trial Court to justify suspicious conduct of Subash is clearly untenable. He is not a rustic villager as has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that these articles were recovered from the possession of the aforesaid respondents. We are of opinion that the learned Sessions Judge was right in rejecting the testimony relating to the recovery of the articles. 388. The third decision is Shera v. Emperor AIR 1943 Null 5 relevant portion whereof has already been noted in para 295 above. 389. A combined reading of the afore-noted judicial decisions shows that the effect of recovery of an ordinary article on the culpability of an accused is different vis-à-vis recovery of a valuable article. The reason is obvious. While an ordinary article can easily be procured and planted upon an accused person the same is not the case with a valuable article as pointed out by Lahore High Court in Shera's case (supra). 390. Another legal principle is discernible from Jora Hasji's case (supra); that recoveries can be of two kinds; namely, (1) Those which directly connect the accused to the offence; (2) Those which may be of an incriminating nature but do not suggest any direct connection of the accused in the commission of offence. 391. In this regards, it is most apposite to note the decision of Supreme Court reported as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing observations of Supreme Court in the decision reported as Pohalaya Motya Valvi v. State of Maharashtra AIR 1979 SC 1949: The High Court uses the pronoun 'I' at two places. We, with the assistance of both the learned Counsel proficient in Marathi language read the original statement. The reading of the statement by the High Court appears to be far-fetched. Even the High Court is conscious of it when it observes in para 20 of the judgment that the authorship of the act of concealment of the spear would be implied and would be none other than the appellant, and then observes that this circumstance which is one of the strongest links stands duly established. The Marathi word 'Me' is to be found at the commencement of the statement followed by the wholly inadmissible portion and then there is reference to the place where the spear was hidden. The Marathi expression 'Thevalela' would more appropriately be translated has been kept and not 'I have kept' because in the case of 'Have kept it,' the Marathi word would be 'Thevala'. It may be that being not conversant with Marathi language our translation may not be appropriate but if this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hpender and Nirvikar is that they pointed out the place of murder of the deceased. Nothing turns on the same as the said place was already in the knowledge of the police. 404. Discovery of clues from the disclosure statement of Pushpender and Nirvikar: - The next circumstance used by the learned Trial Judge to infer the guilt of accused Pushpender and Nirvikar is that the disclosure statement of accused Pushpender and Nirvikar provided clues to the investigating agency. 405. The aforesaid circumstance is factually incorrect inasmuch as the police did not get any clues from the disclosure statements of accused Pushpender and Nirvikar. The police got the clues from the disclosure statements of accused Raj Kumar and Roshan Singh. None have been set out by the learned Trial Court. None have been shown to us. 406. Before concluding the discussion pertaining to accused Pushpender and Nirvikar, we would like to highlight a grave illegality committed by the learned Trial Court. The learned Trial Court convicted accused Pushpender and Nirvikar for illegally possessing and using the firearms recovered at the instance of accused Roshan Singh. No evidence was led by the prosecution to estab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
