* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 22 nd January, CRIMINAL APPEAL NO. 57 of 1994 Kashmira Singh & Ors.

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1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 22 nd January, CRIMINAL APPEAL NO. 57 of 1994 Kashmira Singh & Ors.... Appellants - versus The State...Respondent Advocates who appeared in this case: For the Appellant : Mr. Anil Soni, amicus curiae. For the Respondent : Mr. M.N. Dudeja, APP. CORAM: * HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the judgment?(yes) 2. To be referred to the Reporter or not?(yes) 3. Whether the judgment should be reported in the digest?(yes) JUDGMENT P.K.BHASIN, J: This appeal was filed by three persons impugning the judgment and order dated passed by the Court of an Additional Sessions Judge whereby they were convicted for the offence punishable under Section 302/34 IPC for committing the murder of one Baljit Bitta and were sentenced to undergo life imprisonment and also to pay fine of Rs. 2000/- each with a stipulation of six months further rigorous imprisonment in case of default in payment of fine. Crl.A. 57/1994 Page 1 of 31

2 2. Devoid of voluminous details, the prosecution case is that on January 24, 1986 a dead body of one Baljit Singh s/o Sunder Singh (PW-5) was found lying in a bunga (a temporary storage for fodder) in village Jhangola, within the jurisdiction of Alipur police station, belonging to one Sunder Singh. That dead body was noticed by Sunder Singh s son, Kulwant Singh and on being informed about that, Sunder Singh s/o Pathana, PW-7, went to Alipur police station and informed the police about the discovery of a dead body in his bunga by his son Kulwant Singh. That information was recorded as DD No. 4-A and its copy was handed over to the SHO for enquiry. The SHO of that police station, PW-18, Inspector Raj Mahender Singh, along with Sub- Inspector Manohar, ASI Sita Ram and other staff as also the informant Sunder Singh went to the bunga and found a dead body lying there which was identified to be that of PW-5, Sunder Singh s 19 years old son Baljit Singh, who was also a resident of village Jhingola and had reached the spot on being informed by Kulwant Singh about the recovery of the dead body of his son. Some bleeding injuries were noticed on different parts of the dead body during the inquest proceedings. The skull was noticed to be broken. PW-5 gave his statement to the police on the basis of which a case under Section 302/34 IPC was registered by the police at about a.m. on 24 th January, 1986 vide FIR Ex.PW-2/C. Sunder Singh stated in that statement, Ex.PW-4/A, that the previous evening at about 6 p.m. he was present at his house along with his son Baljit Singh when Bishan Crl.A. 57/1994 Page 2 of 31

3 s/o Kartar Singh, Kashmir s/o Uttam Singh and Kehri s/o Satnam Singh, all of whom were residents of his village Jhangola and known to him came and asked his son Meeta to come along for a stroll in the fields. His son accompanied them but did not return home during the night. On that day i.e. 24 th January, at about 9 a.m. Kulwant s/o Sunder Singh (PW-7) had come to his house and told him that the body of Baljit was lying in their bunga (place for storing toora). Sunder Singh expressed his suspicion that the above-named three persons had, because of the enmity with them due to some on-going land dispute killed his son and thrown the body inside the bunga. 3. On 25 th January, 1986 post-mortem examination was conducted on the dead body of the deceased by PW-11 Dr. L.T.Ramani. In the post-mortem report Ex.PW-11/A the following observations were made by the autopsy surgeon on external and internal examination of the corpse: External injuries: 1. Abrasion 2 ½ x 1 ½ on the middle of forehead. 2. Abrasion 1 ½ x 1 1/2' on the right cheek bone area; 3. Abrasion 1 x ½ on the upper lip in mid-line; 4. Y shaped laceration of 1 ½ x ¾ x scalp deep on the vault of the skull in midline; 5. Compound fracture of left ulna bone at its lower third with bruising of the postero lateral aspect and laceration ¾ x ½ x muscle deep. There was massive blood clots under the bruise; 6. There was diffused bruising with swelling on the dorsum of leg hand; 7. Extensive bruising diffusely present on left arm, elbow and upper part of forearm on the outer aspect 6 x 4 area with extra vacation of blood under the bruises. Crl.A. 57/1994 Page 3 of 31

4 8. Reddish bruise mark 4 x 1 ½ on the postero lateral aspect of right fore-arm placed vertically; 9. Multiple bruises on both scapular areas at back of chest scattered in various directions. Size of bruises varied from 3 to 6 x 1 ½. 10. Multiple bruises on left buttock; 11. Bruise with abrasion 3 x 1 size on the back of right knee; 12. Bruise 4 x 1 on right leg lower part, on the outer aspect; 13. Multiple bruises and abrasions present on the front of both legs; 14. Swelling on the dorsum of left foot; 15. Bruise with abrasion 2 x 1 size present behind left ear, over mastoid region. There was massive extra vacation of blood under the bruise. Internal examination revealed as follows: There was haematoma in the scalp over left temporo parietal region, skull bones were intact. There was thin sheet of subdural haemorrhage on the left hemisphere. Neck structures were intact. Trachea was normal. Ribs were intact. Lungs were pale and bloodless. Right lung showed bruising. Heart was normal. Stomach was full and contained digested food material. Other abdominal organs were normal. All injuries were opined to be ante-mortem caused by blunt weapon. Injuries over the skull and other injuries collectively were found to be sufficient to cause death in the ordinary course of nature. Cause of death was opined to be haemorrhagic shock and coma resulting from the aforesaid injuries. Time since death from the start of post-mortem, which was at about p.m. on 25 th January, 1986, was opined to be about 36 hours. 4. In view of the suspicion expressed by the father of the deceased against three persons named in the first information report the police arrested all three of them. During investigation PW-3 Harpal Singh also claimed to have seen the deceased in the company of the Crl.A. 57/1994 Page 4 of 31

5 accused in the night of 23 rd January, 1986 coming from village Jhingola and going towards Yamuna river. The witness also claimed to have heard accused Bishan Singh telling the deceased at that time that he (the deceased) was stealing their illicit liquor kept concealed under the sand and so they had brought him from his house to settle the score with him that day. (That was also alleged to be the motive for the murder). PW-9 Gholu, who was living in a jhuggi on the Yamuna bank near Jhangola village, claimed to have seen the deceased being caught by the accused persons who were armed with lathies at about 8 p.m. on 23 rd January, 1986 at a place near his jhuggi and at that time the accused were telling the deceased that since he was stealing their liquor they would settle the score that day. The investigating officer had moved applications before the concerned Magistrate for recording statements of these two witnesses under Section 164 Cr.P.C. but the Metropolitan Magistrate to whom the application moved for that purpose was assigned (PW-12 Shri H.S.Sharma) did not record their statements as provided under Section 164 Cr.P.C. and instead read over to the witnesses their statements under Section 161 Cr.P.C. and since witnesses stated before the Magistrate that they had nothing more to say except whatever they had stated in their statements under Section 161 Cr.P.C. the Magistrate passed separate orders on the applications of the investigating officer that there was no need of recording their statements u/s 164 Cr.P.C. Crl.A. 57/1994 Page 5 of 31

6 5. After the completion of investigation charge-sheet was filed in the Court of the concerned Metropolitan Magistrate. In due course the case stood committed to the Court of Sessions where a charge under Section 302/34 IPC was framed against the three accused persons, namely, Kashmira Singh, Kehar Singh and Bishan Singh. 6. To prove its case the prosecution had examined as many as 18 witnesses during the trial. The accused were also examined under Section 313 Cr.P.C. after the prosecution evidence was over. All the three accused pleaded false implication but no evidence was adduced in defence. 7. After examining the evidence by the prosecution, which was only circumstantial in nature, the learned trial Court in its judgment while convicting all the accused persons noticed certain lapses committed not only by the investigating agency but also the grave illegality, as noticed already, committed by the Metropolitan Magistrate Shri H.S.Sharma(PW-12) while dealing with the applications for recording the statements under Section 164 Cr.P.C. of PWs 3 and 9. The relevant observations and findings of the learned trial Judge are to be found in para nos. 25, 26, 29 and 35 of his judgment which is being re-produced below: 25.It is also not disputed that he died an unnatural death at the hands of someone, who had inflicted such injuries on his person, that resulted into death. It is also not disputed that the dead body of said Baljit was recovered from Bunga of PW7, who informed the police about the recovery of dead body. Crl.A. 57/1994 Page 6 of 31

7 26..However, it has already been discussed above that the case is of last seen evidence and undisputedly by both the sides, there is no article which might have been recovered from the possession of the accused which was sealed by the Investigating Officer, so as to show direct nexus of the accused persons with the commission of the crime. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 29 but in the present case, there is no eyewitness at all. As aforesaid the present case entirely rests upon the evidence of the deceased having been last seen in the company of the accused persons and therefore, as has been mentioned above neither the recovery of lathies from common place, nor non-sending of articles like lathi for chemical analysis, nor these articles being common in the village has got any importance..they are that the deceased Baljit died due to multiple injuries on his body and his body was found at Bunga and that according to PW5, the deceased had been called by accused Kashmira and others to accompany them to the fields. The learned counsel for the accused persons although has vociferously contended that the prosecution has miserably failed in establishing the motive because PW5 has categorically denied about the existence of any motive with the accused persons particularly with respect to any dispute of land. In this regard it can be stated that where the prosecution relies purely upon the circumstances then the motive plays an important role. However, in the present case, the motive as alleged by the prosecution regarding the land dispute has been categorically denied by the PW5 and on this aspect, I find that the witness has truly deposed. He had not fallen prey to the prosecution net of the land dispute as the motive. What could be the motive, rather seems to have cropped up on account of the cross-examination of PW5 on behalf of the accused persons and in the presence of this cross-examination, the statement of PW5 that his son was called by accused persons to come to the fields, achieve greater significance. No doubt that PW5 has introduced in his statement the fact that his son was called to the fields, so that he may not be arrested by the police, which is against statement Ex. PW4/A, his statement is to be scrutinized in view of what he has stated in the statement as a whole. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 35. The circumstances of the case would show that the other evidence adduced by the prosecution in the shape of disclosure statement and the recovery is not clinching at all, whereas, the clinching evidence is that of PW-5, who had last seen the victim in the company of the accused persona till he died. It is not a case of separate pieces of circumstantial evidence relating to the movement of the accused or of the deceased. In the absence of any explanation on behalf of the accused as to where the deceased was left alive and safe after he left the house in their company, it would in-fallibly indict the accused persons and none else. Consequently, not only that the statement of PW5 is believable but also in view of the unchallenged facts about the liquor complicity, the statement becomes clinching. Crl.A. 57/1994 Page 7 of 31

8 8. From these extracts of the impugned judgment it becomes clear that the accused have been convicted only on the evidence of last seen and failure of the accused to explain as to when they parted the company of the deceased and where and under what circumstances. Feeling aggrieved by the judgment of the trial Court convicting them for the murder of Baljit Singh the three accused persons filed a joint appeal. During the pendency of the appeal two accused-appellants, namely, appellant no.1 Kashmir Kashmira and appellant no.2 Kehar Kehri died and so the appeal qua them stood abated. Thus, now we are to decide the fate of accused-appellant Bishan Singh only. 9. On behalf the sole surviving accused-appellant arguments were advanced by Shri Anil Soni, amicus curiae, and for the State its Additional Public Prosecutor Shri M.N.Dudeja supported the trial Court s decision. 10. The prosecution had relied upon certain circumstances during the course of its evidence before the trial Court to establish the guilt of the accused persons. First circumstance was that the accused persons had the motive to kill the deceased since there was some land dispute between the accused and the father of the deceased. The deceased was also stealing the illicit liquor manufactured by the accused persons. It is the common case of the prosecution and the accused that the deceased as well as the accused persons were Crl.A. 57/1994 Page 8 of 31

9 bootleggers. The deceased as well as accused Bishan Singh were registered with the police as BCs (bad characters) and arrest warrants had been issued against the deceased by some Court in Rajasthan. Second circumstance was that the accused had taken the deceased with them from his house in the evening of 23 rd January, Third circumstance was that the accused and the deceased were seen at about 7.45 p.m. going towards Yamuna river by PW-3 Harpal Singh and then at about 8 p.m. also the deceased was seen alive in the company of the accused persons by PW-9 at the Yamuna bela. The fourth circumstance relied upon by the prosecution was that in the morning of 24 th January,1986 the deceased was found lying dead in a bunga belonging to PW-7 Sunder Singh of village Jhingola. Fifth circumstance pressed into service by the prosecution was that the death of the deceased on post-mortem-examination found to be homicidal. Last circumstance was that accused Bishan Singh and Kehar Singh had got recovered one lathi each which the prosecution considered to be weapons of offence. 11. The trial Court after examining the evidence adduced by the prosecution has found that the first circumstance of motive and the third circumstance of the deceased having been seen in the company of the accused persons at between 7.45 p.m. and 8 p.m. on 23 rd January, 1986 were not established. Evidence of the recoveries of lathis was also rejected as being of no use for the prosecution. So, the Crl.A. 57/1994 Page 9 of 31

10 learned amicus curiae did not have to say anything regarding these two circumstances which the trial Court itself had ignored from consideration while finding the accused guilty. 12. Nothing was argued by the learned amicus curiae for the appellant even on the point of recovery of the dead body of the deceased in the morning on 24 th January, About that recovery there is in any case reliable evidence of PW-5 Sunder Singh, the father of the deceased, PW-7 whose name is also Sunder Singh, who had informed the police about the dead body of the deceased having been found by his son in his (PW-7 s) bunga in his field which appears to be on the outskirts of village Jhangola near Yamuna river, PW-8 Harbans Singh, brother of the deceased, who had also reached the bunga on getting the information about the recovery of the corpse of his brother and the police witnesses, PWs 10, 13, 17 and 18. The learned amicus curiae also did not dispute the fact that the deceased died a homicidal death. That fact is also even otherwise duly established from the evidence of the autopsy surgeon. His observations regarding the injuries noticed by him on the dead body of the deceased and the cause of death have already been noticed by us. As per the opinion of the autopsy surgeon the death of the deceased had taken place 36 hours before the post-mortem. So the death occurred around mid-night of 23 rd January, So, the Crl.A. 57/1994 Page 10 of 31

11 findings of the trial Court in respect of circumstances no. 5 and 6 are re-affirmed by us. 13. Mr. Soni, however, submitted that the only piece of evidence relied upon by the trial Court for convicting the three accused is the evidence of the accused persons and the deceased having been taken from his house by the accused persons in the evening of 23 rd January, 1986 but that circumstance by itself was not sufficient to record conviction. Mr. Dudeja, on the other hand argued that the trial Court has wrongly held that the circumstance of motive has not been established when in fact it has been duly established from the evidence of PWs 3 and 5 whose evidence on the motive aspect of the prosecution case has been wrongly rejected. Mr. Dudeja also submitted that this Court, being the appellate Court, can make a fresh and independent analysis of the evidence and arrive at a different conclusion on the circumstance of motive as well as the deceased having been seen alive in the company of the accused persons at about 7.45 p.m. also on 23 rd January, as was also deposed by PW-3 but not believed by the trial Judge. 14. So, now we proceed to examine the evidence relating to the circumstance of last-seen which has been found by the trial Court to have been duly established and by itself sufficient to hold the accused persons guilty and the grounds for rejecting that evidence put forth by the amicus curiae and evidence on other circumstances relied upon Crl.A. 57/1994 Page 11 of 31

12 by the learned APP Mr. Dudeja. PW-5, Sunder Singh is the father of the deceased and the complainant of the case also on whose statement FIR was registered. He is the star prosecution witness and the learned trial Judge has convicted all the three accused persons relying on the evidence of this witness only. The relevant part of his examination-in-chief is being re-produced below verbatim: Baljit deceased was my son. He was also known by the name of Meeta and Jeeta. At the time of incident he was aged about years. I know all the three accused present in Court. They are also the residents of the same village. About 1 ½ years back, at about 6 P.M. I was at my house. Deceased was also there. All the three accused present in court (correctly identified) came to my house. Kashmira accused told my said son that should accompany them to the fields so that police persons may not arrest him. My son had left along with the accused persons at about 6 PM. He had not come back on that night. Kulwant son of Sunder Singh told me on the next day at 7/8 AM that my above son was lying dead in his bonga (place for storing toora). Sunder Singh father of Kulwant had thereafter gone to PS to report the matter. I had gone to the spot and found dead body of my son lying there villagers also had accompanied me to the spot. Deceased was having injuries on his head, arm, waist, etc. and blood was also there. 5 sticks arhar were lying at a short distance near the dead body which were blood stained. Clothes and dabbi of tambakoo were also lying near the dead body. Police had also come at the spot and my statement was recorded by them. Ex.PW4/A is the same statement which is thumb marked and initialed by me, at point A. Deceased used to deal in business of moolis. Mark A is photograph of deceased. I simply know how to sign, otherwise I am illiterate. Prior to the incident relations in between deceased and accused persons were cordial. Dead body was taken to police station by police. Police also visited bank of Jamuna, where at two places blood was found. There was distance of about 10 paces in between both the places where blood was found lying. Police had lifted blood and controlled earth from both the said places. These were kept in separate bottles and thereafter sealed villagers were also present when the police had lifted the blood and earth from the aforesaid places and sealed them. Clothes and the dibbi were also taken into possession by police from the place where dead body was lying. Those clothes belonged to the deceased. The said articles were kept in separate parcels and thereafter sealed at the spot. Blood and the earth were also lifted from the spot by the police, which were also sealed. Memo Ex.PW4/B was prepared by the police at the spot. It is thumb marked and initialed by me. Along with me, my both the sons, Harbans, Jehangir, Jit Singh had gone to police station. I saw dead body of deceased. Police again made inquiries from me there. Postmortem was conducted on 24 th and dead body Crl.A. 57/1994 Page 12 of 31

13 was delivered to me on 25 th. One cycle and two lathis were also recovered from moonga by police in the evening on the following day of incident. Sticks and cycle were lying at a distance of 4-5 yards concealed in the crops. So many persons were then with police. 15. Statement of PW-5 in his examination-in-chief to the effect that his son Baljeet Singh had gone from his house with the accused persons in the evening before the day of the recovery of his dead body had remained totally unchallenged in cross-examination on behalf of the accused persons and so has been relied upon by the learned trial Judge. In one case decided by the Supreme Court State of U.P. vs. Satish reported as AIR 2005 SC 1000 the witness on the point of lastseen was not cross-examined by the defence counsel but still the Courts below ignored his evidence while acquitting the accused. The Supreme Court, however, after noticing the absence of crossexamination of the witness of last-seen circumstance on the point of the deceased having been seen by him with the accused before the recovery of the dead body of the deceased accepted the unchallenged evidence of that witness. No doubt that PW-5 did not specifically state that his son had gone from the house alongwith the three accused persons on 23 rd January, 1986 but it is more than clear that he meant to convey that only and that is evident from his statement that it was in the evening of the day before the recovery of the dead body of his son. There is ample evidence adduced by the prosecution to show that the dead body of the deceased was recovered on the morning of 24 th January, Even the accused persons had clearly understood that Crl.A. 57/1994 Page 13 of 31

14 it was on 23 rd January only that the deceased had, according to PW-5, left his house in the company of the three accused persons and that is evident from their memorandum of appeal. Since this part of the testimony of this witness had remained unchallenged in crossexamination the learned amicus curiae Mr.Anil Soni rightly did not make any serious argument on this aspect of the prosecution case. His main argument put forth with vehemence was that the trial Court had seriously erred in convicting the accused solely on the basis of the circumstance of the deceased having left his house alongwith the three accused persons in the evening of 23 rd January, Reliance was placed upon one judgment of the Supreme Court reported in (2008) 3 Supreme Court Cases 100 K.T. Palanisamy v. State of Tamil Nadu. That, however, is a different matter whether the accused could be convicted or not on the basis of evidence of last-seen alone. Thus, we have also no hesitation in accepting the evidence of PW-5 that the deceased had left his house alongwith the three accused persons in the evening of 23 rd January, However, the statement of PW-5 that the accused had taken the deceased from his house by telling him that the police might not arrest him cannot be accepted since that was not claimed by him before the police where he had claimed that there some enmity with the accused due to some land dispute. That stand he gave up during evidence. It has come in the cross-examination of this witness that Crl.A. 57/1994 Page 14 of 31

15 the deceased was a bootlegger and was involved in some cases under the Excise Act besides other offences. The witness also admitted that arrest warrants had also been issued against the deceased by some Court in Rajasthan. It was suggested to the witness that the deceased and the accused were doing the business of illicit liquor together which the witness admitted to be correct. It was suggested to the investigating officer (PW-18) in cross-examination that the deceased was registered as BC (bad character) at the police station Ali Pur. PW- 18 had then also stated that the accused were arrested several times and accused Bishan Singh was also a BC. In these circumstances when the accused and the deceased were partners in the business of illicit liquor the statement of PW-5 that the accused had told the deceased to come with them so that police might not arrest him appears to have been introduced by the prosecution in its case through the evidence of PW-5 to make it look like a case of taking away (abduction) of the deceased by the accused persons by playing deceit so as to shift the burden upon the shoulders of the accused to explain how the deceased died within a few hours after they took him from his house. We are, however, of the view that the prosecution case that the accused was taken away from his house by the accused on the said pretext, which has been accepted by the trial Court, cannot be accepted. So, we affirm the findings of the trial Court in respect of the first circumstance only to the extent that in the evening on 23 rd January,1986 the deceased was taken from his house by the accused. Crl.A. 57/1994 Page 15 of 31

16 17. The prosecution had examined PW-3 Harpal Singh to establish that the deceased was seen alive in the company of the accused persons at about 7.45 p.m. on 23 rd January,1986 and at that time the accused were saying to him that he was stealing their illicit liquor and so they would settle the score with him that day, which was another motive pressed into service by the prosecution. PW-3 was residing in a jhuggi on the bank of Yamuna river near Jhangola village. This witness did not support the prosecution case in examination-inchief. He even denied that he knew the deceased and the accused persons. So, he had to be cross-examined by the public prosecutor with reference to his police statement. In that cross-examination he admitted that on 23 rd January, 1986 at about 7.45 p.m. when he was going from his jhuggi to Jhangola village he had seen the accused persons and the deceased coming from the side of village Jhangola and going towards Yamuna and at that time accused Bishan Singh had told the deceased that he was stealing their liquor and lehan concealed in the sand. When cross-examined by the defence counsel this witness accepted that he knew the deceased and also stated that he was going to village Jhangola to purchase house-hold items from the shop of PW-7. The trial Court, however, did not consider his statement made during the cross-examination by the public prosecutor to be reliable and so ignored the same. According to the trial Court, this witness was changing his version from stage to stage. Crl.A. 57/1994 Page 16 of 31

17 There is no doubt, as was the submission of the learned APP Mr. Dudeja, that just because a prosecution witness is cross-examined by the prosecutor with the leave of the Court his entire evidence for that reason alone does not get washed off the record. Evidence of such a witness, if it finds corroboration from other evidence, can also be relied upon. However, there is no corroboration to the statement of PW-3 in the present case to the effect that the accused and the deceased were together at about 7.45 p.m. on 23 rd January, The prosecution had sought to establish the circumstance of last-seen from the evidence of PW-9 Gholu also. As noticed already, he had during the investigation claimed to have seen the accused persons catching hold of the deceased on the night of 23 rd January, 1986 at about 8 p.m. but this witness also did not support the prosecution case and was cross-examined by the public prosecutor. Even during that cross-examination this witness did not support the prosecution case on any aspect and, therefore, as far as this witness is concerned, the prosecution does not get any benefit at all. 19. Now, we come to the evidence adduced by the prosecution on the motive aspect of its case. As noticed already, in the report to the police PW-5 Sunder Singh, father of the deceased, had claimed that there was enmity between his family and the accused persons over some land dispute. This witness, however, did not claim so during his Crl.A. 57/1994 Page 17 of 31

18 evidence and so was cross-examined by the Additional Public Prosecutor since on the circumstance of motive he had not supported the prosecution and contrary to what he had claimed before the police he claimed in evidence that relations between his son and the accused were cordial. However, even during that cross-examination PW-5 did not admit that he had any kind of enmity with the accused persons. His categorical statement was that there was no enmity with the accused persons. The other motive, as spoken to by PW-3, that the deceased, according to the accused persons, was stealing the illicit liquor manufactured by the accused persons and kept concealed under the sand, also cannot be said to have been established beyond reasonable doubt, since we are not inclined to accept the testimony of PW-3 on this aspect made during his cross-examination by the public prosecutor without corroboration and there is no corroboration to that part of his statement also. As far as PW-9 Gholu is concerned he had totally turned hostile and no part of his testimony can be utilized by the prosecution. So, on the motive aspect of the prosecution case, evidence of PWs 3 and 9 has been rightly excluded from consideration by the learned trial Court. 20. We have already observed that during the investigation statements of PWs 3 and 9 were to be recorded under Section 164 Cr.P.C. but the Magistrate (PW-12 Shri H.S. Sharma) had dispensed with the recording of their statements. It was in the context of the Crl.A. 57/1994 Page 18 of 31

19 statements of PWs 3 and 9 that the trial judge had noticed the blunder committed by the Magistrate. Before we notice what the trial Judge observed about the blunder committed by the Magistrate his testimony also needs to be noticed which itself would also show the mistake committed by him. This is what PW-12 Shri H.S. Sharma deposed: On while I was working as Metropolitan Magistrate, Delhi, an application was put up before me by HC Om Parkash, which application is Ex. PW-12/A, for getting the statement of Gholu PW recorded u/s 164 Cr.P.C. Gholu PW was also produced before me for the said purpose. Vide endorsement Ex. PW-12/B I read over statement of this witness recorded by police u/s 161 Cr.P.C. to him. This statement is Ex.PW-9/A. I did not record his statement u/s 164 Cr.P.C. I signed statement of Gholu u/s 161 Cr.P.C. Ex. PW-9/A at point A. Gholu had admitted his having made Ex. PW-9/A to police and it to be correct and he did not want anything else to say that is why I dispensed with his statement u/s 164 Cr.P.C. On application Ex. PW-12/C was moved before me by Constable Virender Singh for recording statement of Harpal Singh PW u/s 164 Cr.P.C. As IO was not present I directed that file be put up before me on and IO to appear on the said date. On Harpal s/o Ram Sarup PW was present. ASI Sita Ram IO was also present. IO was directed to stay outside court room. I had read over statement of Harpal PW recorded u/s 161 Cr.P.C. to him and he admitted having made the said entire statement correctly. His statement is Ex. PW-3/A. I signed the same at point A. My endorsement to that effect on the application Ex. PW12/C is Ex. PW- 12/D. Since witness had admitted his entire statement u/s 161 Cr.P.C. I did not record his statement u/s 164 Cr. P.C. 21. The observations of the trial Judge in respect of the illegality committed by the Magistrate are to be found in para no. 36 of the impugned judgment and the same are being re-produced below: 36. As has been mentioned above the prosecution also made a futile and weak attempt to procure some kind of corroboration from the statement of PW3 Harpal and PW9 Gholu who were also got examined u/s 164 Cr.P.C. However, I am constrained to express my anguish over the bizarre manner in which the learned Magistrate Sh. H.S. Sharma, as he was functioning at the relevant time, has recorded the statement u/s 164 Cr.P.C. It has already been noticed that both the witnesses were read over their respective statements as recorded by police u/s 161 Cr.P.C. and while deposing before this Crl.A. 57/1994 Page 19 of 31

20 court the officer has testified that he so read over the statement and when the two witnesses admitted having made those statements, he made his endorsement. While acting as such, Sh. H.S. Sharma, has completely ignored the established norms and enacted procedure u/s 164 of the Code of Criminal Procedure. the learned Magistrate seems to have devised a novel way of recording the statement u/s 164 Cr.P.C. vide which the establish procedure has been laid to rest in the graveyard. Therefore, the statement Ex. PW9/A as well as Ex. PW3/A of Gholu and Harpal recorded u/s 164 Cr.P.C. is absolutely a rotten piece of evidence which has no value in the eyes of law. It is really astonishing as to what made the officer to record the statement in that fashion which is absolutely alien to codified law. It can only be best hoped that such kind of thing do not recur. 22. We are of the view that if the statements of PWs 3 and 9 had been recorded by PW-12 Shri H.S.Sharma and proved during the evidence the same could have been used for corroborating the testimony of PW-3 at least who had supported the prosecution when cross-examined by the prosecutor. So, by a grave mistake committed by the Magistrate, PW-12, Shri H.S. Sharma in not recording the statements of two very material witnesses for the reason that the witnesses had stated before him that except for whatever they had said in their statements under Section 161 Cr.P.C. which were read over to them by the Magistrate they had nothing more to say, the prosecution has been deprived of the benefit of corroborative evidence in respect of PW-3. Normally, certain faults of the investigating agency make the prosecution case weak but here the Magistrate s fault to some extent has weakened the prosecution case. 23. We are in agreement with the conclusion of the trial Court rejecting the evidence of recoveries of lathis which was not even Crl.A. 57/1994 Page 20 of 31

21 impugned by the learned APP. Now, the question to be considered is whether the learned trial Court was justified in convicting the accused only on the evidence of PW-5 that the deceased had left his house in the company of the three accused persons in the evening of 23 rd January, 1986 and the failure of the accused persons to explain as to when and where they had left the company of the deceased. 24. As regards the circumstance of last-seen the Hon'ble Supreme Court in the case of State of Goa v. Sanjay Thakran and Anr., (2007) 3 SCC 755 has held: 26. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. 27..We have also not found any other link in the chain of circumstances to conclusively establish that A-1 murdered D-1 or A- 2 played any role in assisting him to murder D-1. Even if we believe the evidence of P.W.-11 that he saw D-1 in the company of A-1 walking towards the beach and thereafter saw A-1 returning alone after 30 to 45 minutes, there has been a time gap of about 2 1/4 Crl.A. 57/1994 Page 21 of 31

22 hours when A-1 and D-1 were last seen together and when the dead body of D-1 was found at around a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected. (emphasis supplied) 25. Similarly, in the case of State of U.P. v. Satish, 2005 Crl.L.J. 428 also the Hon'ble Supreme Court has explained the principle of "last seen" evidence as under: 16. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. 17. Applying the above principle to the present case, it is obvious that the prosecution has not produced an iota of evidence to prove that the deceased was last seen with the appellants in U.P. There is gap in both the place and time of the last seen. Therefore, the possibility of someone else stepping In between the time of last seen and the time of discovery of the body, between the place of last seen and place of discovery of the body, cannot be ruled out (Emphasis supplied) 26. Their lordships of the Supreme Court in Mohibur Rahman and another v. State of Assam, (2002) 6 Supreme Court Cases 715, also have laid down the parameters, as to under what circumstances, on the basis of 'last seen' evidence, an accused can be convicted. After analyzing evidence, in that case, it was observed thus:- "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 Crl.A. 57/1994 Page 22 of 31

23 persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide." 27. In the present case the deceased left his house in the evening of 23 rd January, 1986 at about 6 p.m. along with the accused persons, as deposed by the father of the deceased and which statement of his has been accepted by the trial Court as also by us to be reliable, and his dead body was found next morning at about 8 a.m., as stated by PW-7 in cross-examination. As per the opinion of the autopsy surgeon the death of the deceased had occurred around midnight on 23 rd January, The time gap between the last- seen point and the death of the deceased thus was about six hours. The prosecution has not ruled out the possibility of somebody else meeting the deceased after he had left his house during that period of six hours. The deceased was admittedly a bootlegger and was wanted in some criminal case also in Rajasthan. These kind of people in the business of illicit liquor can have some enemies also who may have some grudge against them including business rivalry and so want to get rid of them. The father of the deceased in his cross-examination on behalf of the accused had also stated that sometimes his son used to stay away from his home because of arrest warrants issued against him. So, there was nothing unusual for the deceased having not come back home on the fateful night. As far as the accused persons in the present case are concerned, as noticed already, the father of the Crl.A. 57/1994 Page 23 of 31

24 deceased has categorically claimed that their relations with the accused were quite cordial and the learned trial Judge has rightly observed that if there was any kind of enmity between the accused and the deceased he would not have gone with the accused on their asking. In case of direct evidence the failure to prove motive of the crime is not fatal to the prosecution. But, in a case based on circumstantial evidence, since motive forms one of the strongest links in the chain of circumstances against the accused, its absence will certainly weaken if not destroy the case of the prosecution. The prosecution has also not been able to show any proximity between the place of residence of the deceased and the place of recovery of his dead body. It is significant to note that the dead body of the deceased was recovered from a place which, as per the prosecution case itself, belonged to PW-7, Sunder Singh and none of the accused had anything to do with that place. Thus the absence of proximity of time between the deceased having left his house in the company of the accused and the recovery of his dead body as well as the absence of proximity between the place of residence of the deceased and the place of the recovery of his dead body point towards the innocence of the accused. 28. In any event, the Supreme Court has by now held in a number of judgments that the last-seen evidence is by itself not sufficient to convict an accused. From the judgments of the Supreme Court already noticed by us it is clear that whenever prosecution relies upon Crl.A. 57/1994 Page 24 of 31

25 circumstantial evidence including the circumstance of last-seen, that circumstance has been considered as one of the circumstances in the chain of circumstances. We now refer to some of the judgements of the Supreme Court where in the chain of circumstances the only circumstance of last-seen was found to have been established by the prosecution but that circumstance was not held to be sufficient by itself to base conviction. Way back in the year 1991, in the case of Indrajeet Singh vs. State of Punjab, AIR 1991 SC 1674, the Supreme Court dealing with some circumstances relied upon by the prosecution including the circumstance of last-seen held as under: The prosecution examined P.Ws. 1 to 6. The circumstances relied upon by the prosecution and by both the Courts below are as follows: (1) The appellants had taken away the deceased from his house and thereafter he was never seen alive. (2) The dead body of the deceased was found on the bank of canal and which was identified as that of the deceased. (3) The denial of the appellants that they had never taken away the deceased for bird-shooting. (4) The suggestion that why not the appellants could be falsely implicated in the case. 2. After giving our careful consideration, we are unable to agree with the Courts below. These circumstances are not sufficient to establish guilt of the accused. It is well settled that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. The circumstances so proved must also be consistent only with the guilt of the accused. Among the circumstances relied upon by the prosecution, in the light of these principles we find that except the circumstance No. 1, the other circumstances are not incriminating. In number of cases it has been held that the only circumstance namely that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused. It is no doubt true that the deceased's death was homicidal but since there is no direct witness connecting any of the appellants with the crime we should fall back on the circumstantial Crl.A. 57/1994 Page 25 of 31

26 evidence and we are of the view that circumstances relied upon by the prosecution are hardly sufficient to establish the guilt of the accused. The circumstance, i.e. the absence of enmity between the accused and the deceased and the witness would also show that the accused also had no enmity against the deceased. Therefore, this circumstance is neutral. However, now coming to the recovery of the gun, the High Court has acquitted him of that charge. The only relevant circumstance as pointed above is that the appellants and the deceased left the house together in a friendly manner for birdshooting. It is needless to say that no conviction can be passed on this sole circumstance. (emphasis laid) 29. In Anant Bhujangrao Kulkarni vs State of Maharashtra, AIR 1993 SC 110 the Supreme Court observed as under: 12. The only circumstances that have been found established are that the deceased was last seen alive in the company of the appellant on October 13, 1975 at about 6 p.m. and that the dead body of the deceased was found in the Ladni near the residential portion of the appellant in Pargaonkar's wada. The said two circumstances, in our opinion, cannot be said to be inconsistent with the innocence of the appellant and on the basis of these two circumstances alone, it cannot be held that the appellant was a party to the murder of the deceased. The conviction of the appellant for the offence under Section 302 read with Section 34 IPC cannot, therefore, be upheld. (emphasis supplied) Thus, even though the dead body of the deceased in this case was found from a place near the house of the accused with whom the deceased was last seen alive the Supreme Court did not consider that circumstance to be sufficient to convict the accused for murder. Here in the present case, the dead body of the deceased was found from a place which did not belong to anyone of the accused but belonged to PW-7 Sunder Singh and even the distance between the house oif the deceased and that place has not been proved to show any proximity between the two places. Crl.A. 57/1994 Page 26 of 31

27 30. In the case of Arjun Marik and Ors. v. State of Bihar, 1994 Supp. (2) SCC 372, the Hon'ble Supreme Court had held as under: "The only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded." 31. In Ashok Yadav And Ors. vs State of M.P IX AD SC 446, the Supreme Court even after affirming the conviction of the accused for the offence of kidnapping acquitted the accused of the offence of murder holding that evidence of last-seen was not sufficient to convict the accused of the offence of murder also. This is how the facts were noticed and the conclusions arrived at: 10. Ram Bharose Vajpayee, PW-1, deposed that he saw the appellants alongwith the deceased on cycle near Katora Tal. Rati Ram, PW. 7, also deposed to having seen the deceased with the appellants near Katora Tal. Both the courts have relied upon the statements of P.W. 1 and P.W. 7 in that behalf after giving cogent reasons. So far as PW 5 is concerned, he did not depose that he had seen the deceased with the appellant but, according to him he had seen the appellants outside the Chhatri on the fateful day. The evidence of PW 1, PW 5 and PW 7 has been rightly relied upon by the courts below but the same can only go to show that the appellants had kidnapped the deceased on the fateful day and nothing more than that. The evidence of these witnesses even if accepted in their totality does not go to connect the appellants with the crime of murder. Indeed Avdhesh Kumar's death was homicidal in nature but unless the prosecution can establish beyond a reasonable doubt that the appellants and the appellants alone had committed the murder, their conviction for an offence under Section 302 IPC cannot be sustained. The evidence led by the prosecution about "last seen together" cannot be said to be consistent only with the hypothesis of the guilt of the appellants as regards the offence of murder and incapable of being explained on any other hypothesis. In our opinion the evidence led by the prosecution is of a conclusive nature so-far as kidnapping of the deceased is concerned but is inconclusive so far as the offence of murder is concerned. The chain of evidence is not so complete as to leave no doubt about the conclusion that the appellants also committed the murder of Avadhesh. May be, they did but that is not enough. The prosecution is obliged to establish that in all human probability the accused alone had committed the murder. This, the prosecution has failed to Crl.A. 57/1994 Page 27 of 31