Rakesh Kumar Ors Vs State On 27 August 2009

Rakesh Kumar & Ors.
vs State on 27 August, 2009
Delhi High Court

Rakesh Kumar & Ors. vs State on 27 August, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : 21st July, 2009

Judgment Delivered on: August 27, 2009
+ CRL.A. 19/2007
RAKESH KUMAR & ORS. ..... Appellants

Through: Mr. M.L.Yadav, Advocate
versus
STATE ..... Respondent

Through: Ms. Richa Kapoor, Advocate
CRL.A. 51/2007
SHARDA JAIN & ANR. ..... Appellants

Through: Mr. R.N.Mittal, Sr.Advocate with
Mr. Tanveer A.Mir, Advocate and
Mr. Manoj Kumar, Advocate
versus

CRL.A. 121/2007
PUSHPENDER ..... Appellant

Through: Mr. Rajpal Singh, Advocate
versus

CRL.A. 139/2007
ROSHAN SINGH ..... Appellant

Through: Mr. R.N.Mittal, Sr.Advocate with
Mr. Tanveer A.Mir, Advocate and
Mr. Ashutosh Bhardwaj, Advocate
versus
Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 1 of 183

Indian Kanoon - http://indiankanoon.org/doc/138503005/ 1

CRL.A. 144/2007
RAJINDER @ RAJESH @ RAJU ..... Appellant

Through: Mr. Rakesh Kumar, Advocate
versus

CRL.A. 65/2007
NIRVIKAR @ DOCTOR ..... Appellant

Through: Mr. D.B.Goswami, Advocate
versus

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to

see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the

Digest? Yes
PRADEEP NANDRAJOG, J.
1. Atma Ram Gupta (hereinafter referred to the "Deceased"), a member of the Indian National
Congress, was a Councillor of the Municipal Corporation of Delhi, having been elected from Ward
No.27, Tri Nagar, Delhi, in the Elections held in February 2002.
2. At 10:15 AM on 24.8.2002 he left his residence in an Indica Car bearing registration No.DL 6SA
0025 owned by him, which was driven by his driver Prabhu Yadav PW-17. While leaving the house
he told his wife Sumitra Gupta PW-18, that he was going to attend a rally organized by the Congress
Party at Firozshah Kotla Grounds Delhi.
3. He did not return to his residence till late evening and could not be contacted on his mobile phone
since the same was switched off. His wife got worried. She contacted the younger brothers of Atma
Ram Gupta as also her children and apprised them of the situation. The children of Atma Ram
Gupta as also his younger brothers came to his residence and made inquiries from persons who
were in contact with Atma Ram Gupta during the day. They could not ascertain the whereabouts of
Atma Ram Gupta till midnight and thus Rajinder Pal Gupta PW-9, the younger brother of Atma

Ram Gupta, lodged a missing person report at PS Keshav Puram. HC Ashok Kumar PW-6, recorded
DD No.31, Ex.PW-6/A at 1:00 AM on 25.8.2002 in which it stands recorded that on 24.8.2002 at
about 10:30 AM Atma Ram Gupta left his residence in his white coloured Indica Car bearing
registration No.DL 6SA 0025 which was driven by the driver Prabhu Yadav and that he went to the
residence of Sharda Jain, a Member of Indian National Congress and also a Municipal Councillor
from Keshav Puram Ward New Delhi. That on reaching the residence of Sharda Jain, Atma Ram
sent back his car with the driver and thereafter, in the company of Sharda Jain and another person,
Atma Ram Gupta left the residence of Sharda Jain in an Indica Car bearing registration No.DL 3SAB
0016 belonging to Sharda Jain, which was driven by Prakash Chauhan the driver of Sharda Jain and
they left for Firozshah Kotla grounds to attend a rally. When Atma Ram Gupta did not return home
till evening his family members contacted Sharda Jain who told them that Atma Ram Gupta had
accompanied her to the rally held at Firozshah Kotla grounds and attended the same for sometime.
Leaving the venue of the rally the said four persons proceeded in the car of Sharda Jain towards ring
road and at a red light near Jamuna Bazar, Hanuman Mandir, opposite Nigam Bodh Ghat the driver
of Sharda Jain got down from the car as he was not feeling well. The unidentified person started
driving the car. Sharda Jain further told them that after some time Atma Ram Gupta got down from
her car.
4. On 25.8.2002 itself, Inspector Shiv Raj Singh PW-55, recorded the statement, Ex.PW-62/DB, of
Sumitra Gupta PW- 18, as also the statement Ex.PW-9/C of Rajinder Pal Gupta PW- 9, the younger
brother of Atma Ram Gupta.
5. In her statement, Ex.PW-62/DB, Sumitra Gupta stated that on 24.08.2002 at about 10.15 A.M.
her husband left his residence in his Indica car bearing registration no.DL 6SA 0025 being driven by
his driver Prabhu Yadav. Before leaving the house, her husband 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 further
stated that while leaving the house her husband was wearing a watch in his right hand as also a gold
ring on his finger, on which letters 'AR' were engraved and was also carrying a mobile phone, some
cards and documents. After some time Prabhu Yadav returned to the house and told her that he had
dropped her husband at the residence of Sharda Jain and that Atma Ram Gupta told him to take
back the car to the house because he would go to the rally in the car of Sharda Jain. When her
husband did not return home till evening she contacted Sharda Jain over the telephone to enquire
about the whereabouts of her husband and Sharda Jain informed her that her husband did not
accompany her to the rally.
6. In his statement Ex.PW-9/C, Rajinder Pal Gupta PW- 9, stated same facts which were already
recorded in DD No.31, Ex.PW-6/A.
7. On the next day i.e. 26.08.2002, Inspector Shiv Raj Singh PW-55, recorded the statement
Ex.PW-11/DA of Om Parkash, the driver of Sharda Jain, and the statement Ex.PW- 10/A of the
mother of Om Parkash; namely, Shanti PW-10.
8. In his statement Ex.PW-11/DA, Om Parkash stated that he had driven Sharda Jain and Atma Ram
Gupta in the car of Sharda Jain to the venue of the rally at Firozshah Kotla Grounds and that

another person named Rajesh @ Raju was also in the car. From the venue of the rally they all left
and he drove the car towards ring road. When the car reached the red light near Hanuman Mandir
at Jamuna Bazar, Nigam Bodh Ghat, since he was not feeling well, he got down from the car and
Rajesh started driving the car. He further stated that Raj Kumar the brother of Sharda Jain, Rajesh
@ Raju and a person named Roshan Singh Pradhan had visited the house of Sharda Jain 8-10 days
prior to 24.8.2002 and he saw them again in the house of Sharda Jain on 22.8.2002. He heard
suspicious talks between Roshan Singh and Sharda Jain. He further disclosed that in the night of
24.8.2002 Sharda Jain had visited his house and had told him not to divulge to anyone that Atma
Ram Gupta was in her company in the morning of 24.8.2002.
9. In her statement Ex.PW-10/A, Shanti PW-10, the mother of Om Prakash, stated that Sharda Jain
visited their house in the night of 24.08.2002 and asked her son Om Parkash not to divulge to
anyone that Atma Ram Gupta was in her company in the morning.
10. On 26.08.2002, Inspector V.S.Meena PW-62, took over the investigation of the case.
11. The fact that the deceased was present in the company of Sharda Jain and Rajinder @ Rajesh @
Raje @ Raju on the day he went missing; that Sharda Jain, Rajinder @ Rajesh @ Raje @ Raju, Raj
Kumar @ Raju and Roshan Singh were meeting each other few days before the deceased went
missing and that something fishy was being discussed in the meetings between Sharda Jain, Raj
Kumar, Roshan Singh and Rajinder, the said persons became suspects.
12. On 27.08.2002 Inspector V.S.Meena PW-62, accompanied by Inspector Shiv Raj Singh PW-55,
SI Anil Kumar PW-44 and HC Sunita PW-31, went to the residence of Sharda Jain and arrested her
at 01.00 P.M. as recorded in the arrest memo Ex.PW-31/A. On interrogation by Inspector
V.S.Meena PW-62, in the presence of Inspector Shiv Raj Singh PW-55, Anil Kumar PW-44 and HC
Sunita PW-31, Sharda Jain made a disclosure statement Ex.PW-31/D wherein she disclosed that she
hatched a conspiracy with her brother Raj Kumar and two other persons; namely, Roshan Singh and
Rajinder to murder the deceased and that pursuant to the conspiracy the deceased was taken to
village Chajjupur on 24.8.2002 in her car. Two hired assassins shot him as per plan when the
deceased was led to village Chajjupur. That she could take the police and show the place where the
deceased was murdered.
13. After she was arrested, Sharda Jain produced one mobile phone having number 9811508688.
The phone along with the SIM card were seized vide memo Ex.PW-31/C. Indica car bearing
registration No.DL 3SAB 0016 was parked outside the residence of Sharda Jain. It was searched.
One pair of molded P.O.P. denture set on which name of Dr.S.C.Rajput was engraved; four
invitation cards dated 24.08.2002 one of which had the name of the deceased written thereon and
two labels for parking of the car at Firozshah Kotla ground were recovered and hence seized vide
memo Ex.PW-44/C. Mud was found sticking on the right rear tyre of the said car. The same i.e. the
tyre was seized vide memo Ex.PW-44/C1.
14. When aforenoted events were transpiring in the house of Sharda Jain, Raj Kumar the brother of
Sharda Jain came there and tried to slip away on seeing the police. However, he could not manage to

escape and was arrested at 3 P.M. as recorded in the arrest memo Ex.PW-44/A. On being
interrogated by Inspector V.S.Meena PW-62, in the presence of Inspector Shiv Raj Singh PW-55 and
SI Anil Kumar PW-44, Raj Kumar made a disclosure statement Ex.PW-44/O wherein he disclosed
that he was a party to the conspiracy with Sharda Jain and two other persons; namely, Roshan
Singh and Rajinder to murder the deceased and that two other persons; namely, Pushpender and
Nirvikar were the hired assassins who fired shots at the deceased in pursuance of the said
conspiracy. He stated that he could lead the police to the place and identify the same, where the
deceased was murdered. He further disclosed that he had removed the wrist watch of the deceased
and could get the same recovered.
15. Pursuant to their respective disclosure statements, Sharda Jain and Raj Kumar led the police
party consisting of Inspector V.S.Meena PW-62, HC Sunita PW-31, SI Ram Kumar PW-32, SI Anil
Kumar Chauhan PW-44 and SI Shiv Raj Singh PW-55 to a Dak Bangla near a Rajwaha (minor canal)
situated behind village Chajjupur, U.P. and vide pointing out memos Ex.PW-44/D and Ex.PW-44/E
both of them, at the same time, pointed out a spot and stated that the said spot is the place where
the deceased was murdered.
16. On a thorough investigation of the place pointed out by accused Sharda Jain and Raj Kumar, the
earth therein was found to be stained with blood at three different spots. SI Ram Kumar PW-32,
lifted the portions of the earth stained with blood as also the earth control and seized the same vide
memo Ex.PW-44/F. Thereafter the control mud/soil at the place in question was lifted and seized
vide memo Ex.PW-44/G. Inspector V.S.Meena PW-62, prepared the site plan Ex.PW-62/B of the
spot in question; recording therein at points „A , „B and „C , the spots where the earth was found
to be stained with blood and samples lifted.
17. SI Manohar Lal PW-29, a draftsman and HC Sajjan Kumar PW-33 a photographer were
summoned. SI Manohar Lal prepared the site plan to scale Ex.PW-29/A of the place in question, at
the instance of Inspector V.S.Meena. HC Sajjan Kumar took five photographs Ex.PW-33/A to
Ex.PW-33/E of the place in question; negatives whereof are Ex.PW-33/A1 to Ex.PW-33/E1.
18. Thereafter accused Raj Kumar led the police party consisting of Inspector V.S.Meena PW-62, SI
Anil Kumar Chauhan PW-44 and SI Shiv Raj Singh PW-55, to his residence at village Gulawati,
District Bulandshar, UP and recovered a wrist watch of make „Citizen Quartz with a gold chain
from behind a speaker kept at a ventilator in the balcony of his house and the same was seized vide
memo Ex.PW-44/H. The said watch was deposited in the Malkhana on the date of its recovery itself
i.e. 28.08.2002 as recorded vide entry No.1560 entered by HC Dinesh Kumar PW-43, in the
Store-Room Register (Part I).
19. Attempts made to locate the dead body of Atma Ram Gupta failed till 31.08.2002, when around
5 A.M. on 31.8.2002, Ram Kumar PW-22, an agriculturist and resident of village Deher Ki Madia,
Bulandshar, UP saw a dead body of a male person lying in a sub-canal of the canal known as
„Bulandshar Rajwaha/Sanota Canal . Ram Kumar apprised the police officials. Since the body
found in the canal appeared to be that of the deceased, the police called the relatives of the deceased
for the purposes of the identification of the said body. Rajinder Pal Gupta PW-9, Ved Prakash Gupta

PW-15, Rajpal Gupta PW-16, brothers of the deceased and Mahender Pal Gupta PW-8 and Amrit Lal
Singhal PW-37, friends of the deceased, identified the body found in the canal as that of the
deceased.
20. Since the body of the deceased was found within the jurisdiction of Police Station Gulawati, UP,
the police officials of the said police station were joined in the recovery. Inspector V.S.Meena
PW-62, informed the duty officer of PS Gulawati by way of a written application Ex.PW-62/C about
the recovery of the body of the deceased based whereon Const.Lalit Kumar PW-60, prepared DD
Entry Ex.PW-60/B at 5.00 A.M. on 31.08.2002. Taking along a copy of the afore- noted DD Entry,
SI Rambir Singh PW-61, reached the canal, lifted the earth from near the canal and water oozing out
from the body of the deceased and seized the same vide Ex.PW- 23/A. SI Rambir Singh also
prepared inquest report Ex.PW-61/A and other documents pertaining to the recovery and conduct
of post-mortem of the deceased. Inspector V.S.Meena PW-62, prepared the rough site plan
Ex.PW-62/D of the place of the recovery of the body of the deceased; recording therein at points „A
and „B the spots where the body of the deceased was found stuck in the heap of garbage in the
canal and where the body was kept after being taken out from the canal. HC Sajjan Kumar PW-33,
photographer, reached the said place and took the photographs Ex.PW-33/X1 to Ex.PW-33/X12 of
the body of the deceased and the place of the recovery of the said body; negatives whereof are
Ex.PW33/X1A to Ex.PW-33/X12A. (It may be noted here that the photographs Exhibits PW-33/X1,
PW-33/X7, PW-33/X8, PW-33/X9, PW-33/X10 and PW-33/X11 are the photographs of the body of
the deceased whereas the photographs Exhibits PW-33/X2, PW-33/X3, PW-33/X4, PW- 33/X5
PW-33/X6 and PW-33/X12 are the photographs of the place of the recovery of the dead body of the
deceased) Ravinder Singh PW-23 and Jai Chand PW-26, public persons, witnessed the investigation
conducted at the place in question and preparation of the memos as also the other documents
prepared by the police in connection with recovery of the body of the deceased.
21. Thereafter the body of the deceased was sent to the mortuary at District Hospital, Bulandshar,
where Dr.S.K.Aggarwal PW-21 and Dr.M.M.Aggarwal conducted the post-mortem of the deceased at
2.30 P.M. on 31.08.2002 and prepared the post-mortem report Ex.PW-21/A which records
following ante-mortem injuries on the person of the deceased:-
"1. Firearm wound of entry 1.0 cm x 1 cm x cavity deep on right side forehead 2.0 cm
above lateral end of right eye brow, margins inverted.
2. Firearm wound of exit 2.0 cm x 3.5 cm x cavity deep on left side of head 1.0 cm
above left ear. On exploration, injuries nos.1 and 2 found communicating with each
other. Margins inverted.
3. Abraded contusion 2.5 cm x 1.5 cm above top of head."
22. The relevant portion of the external examination of the deceased recorded in the post-mortem
report Ex.PW-21/A reads as under:-

"...Skin peeled off at places, scalp hair loose and easily detachable. Body covered with
mud at places. Skin of hands and feet (soles) wrinkled. Foul smell present. Face
scrotius and penis swollen."
23. The post-mortem report further records that the brain of the deceased was in a liquefied state;
that the small intestine was contain gases; that the death was caused due to coma, shock and
haemorrhage as a result of ante-mortem injuries found on the person of the deceased and that the
death of the deceased had taken place about one week prior to the conduct of the post-mortem.
24. After the post-mortem, the doctors handed over the clothes and artificial teeth, six in number;
viscera of the deceased; vial of sample of preservative used for preserving the viscera of the deceased
and one sample seal to SO of PS Gulawati. HC Ajay Pal PW-4, handed over the afore-noted materials
as also the materials seized vide memo Ex.PW-23/A; namely, earth lifted from near the canal and
water which had oozed out from the body of the deceased; the post-mortem report and its copies
and the inquest papers to Inspector V.S.Meena PW-62, vide memo Ex.PW-4/A.
25. Since accused Roshan Singh could not be located in his house, the police flashed a wireless
message, Ex.PW-55/A, to all SSP s and DCP s in India to search for Roshan Singh and a Maruti
800 car bearing registration No.DDU 1371 owned by him. Proceedings were initiated to declare him
a proclaimed offender.
26. Attempts were made to trace Pusphpender and Nirvikar. On 6.9.2002, Inspector Ram Chander
PW-20, along with other police officials was present near PS Tappal, District Aligarh when a secret
informer informed him that accused Pushpender is staying in the house of his relative situated at
village Bharatpur. Inspector Ram Chander PW-20, sent the aforesaid information to Police Station
Keshav Puram, where DD No.11, Ex.PW-62/E, was recorded at 3.20 P.M. noting the said
information. Thereafter Inspector Ram Chander proceeded to village Bharatpur and apprehended
Pushpender from a road in the village. Inspector V.S.Meena accompanied by SI Sukaram Pal PW-39
and SI Anil Kumar Chauhan PW-44, reached village Bharatpur and formally arrested accused
Pushpender at 7.30 P.M. as recorded in the arrest memo Ex.PW-20/A.
27. The personal search of Pushpender resulted in the recovery of Rs.44/- and one I-Card issued in
the name of the deceased by All India Crime Prevention Organization and the same were seized vide
memos Ex.PW-20/B and Ex.PW-20/C respectively. On being interrogated by Inspector V.S.Meena
PW-62, in the presence of SI Sukaram Pal and SI Anil Kumar PW-44, Pushpender made a disclosure
statement Ex.PW-20/D wherein he disclosed that he had fired a shot at the deceased in pursuance
of a conspiracy to murder the deceased.
28. On 17.09.2002 Inspector Ram Chander PW-20, telephonically informed duty officer at PS
Keshav Puram that accused Nirvikar who was granted bail in connection with FIR bearing
no.250/01 registered against him and had got his bail cancelled and is lodged in Aligarh Jail, based
whereon, DD No.7A Ex.PW-62/F, was recorded at 10.45 A.M. noting the same information. On
receipt of said information, Inspector V.S.Meena PW-62, proceeded to Aligarh, where after filing an
application and getting permission from the District Judge, Aligarh, he obtained the custody of

accused Nirvikar and formally arrested him at 01.00 A.M. on 18.09.2002 as recorded in the arrest
memo Ex.PW-39/A1.
29. On interrogation by Inspector V.S.Meena PW-62, in the presence of SI Sukaram Pal PW-39,
accused Nirvikar made a disclosure statement Ex.PW-39/A, wherein he disclosed that the shot
which caused the death of the deceased was fired by him. Additionally, he stated that he can point
out the place where the deceased was murdered and the residence of accused Roshan Singh and can
also get recovered the country made pistols used for committing the murder of the deceased.
Pursuant to his disclosure statement, Nirvikar led the police party consisting of Inspector V.S.Meena
PW-62 and SI Sukaram Pal PW-39, to a Dak Bangla near a Rajwaha which was situated behind
village Chajjupur, U.P. and vide pointing out memo Ex.PW-39/B pointed out a spot and stated that
said spot is the place of the murder of the deceased. (It may be noted here that the said spot is the
same which was told by accused Sharda Jain and Raj Kumar as the spot where the murder of the
deceased was committed i.e. the spot was already known to the police). Thereafter, he led the
afore-noted police officials to the residence of his brother-in-law situated at village Chajjupur and
got recovered an I-card issued in the name of the deceased by ISCKON, from underneath a trunk,
which was seized vide memo Ex.PW-39/C. (It may be noted here that in the disclosure statement
Ex.PW-39/A made by accused Nirvikar he has not made any mention of any I-card or of the fact that
he can get one recovered).
30. On the basis of secret information, the police party, consisting of Inspector V.S.Meena PW-62,
SI Anil Kumar Chauhan PW-44 and SI Sukaram Pal PW-39, arrested accused Rajinder Singh at a
bus stand situated at JJ Colony, Wazirpur, Delhi, at 8.30 P.M. on 30.09.2002 as recorded in the
arrest memo Ex.PW-44/J. On being interrogated by Inspector V.S.Meena PW-62, in the presence of
SI Sukaram Pal and SI Anil Kumar PW-44, Rajinder Singh made a disclosure statement
Ex.PW-39/E, wherein he disclosed that he hatched a conspiracy with Sharda Jain, Raj Kumar,
Roshan Singh and Rajinder to murder the deceased and that two unknown persons fired shots at the
deceased in pursuance of the said conspiracy. Pursuant to his disclosure statement, Rajinder Singh
led the police party consisting of Inspector V.S.Meena PW-62 and SI Sukaram PW-39, to a Dak
Bangla near a Rajwaha which was situated behind village Chajjupur, U.P. and vide pointing out
memo Ex.PW-39/G pointed out a spot and stated that spot is the place of the murder of the
deceased. Thereafter he led the afore-noted police officials to the residence of Sharda Jain and vide
pointing out memo Ex.PW- 39/F pointed out the said house as the place where the conspiracy to
murder the deceased was hatched. (It may be noted here that the said places were already in the
knowledge of the police).
31. On 01.10.2002, Inspector V.S.Meena PW-62, filed an application Ex.PW-62/H before the court
of Metropolitan Magistrate for conduct of Test Identification of Rajinder. Rajinder refused to
participate in the TIP proceedings on the ground that he is known to the witnesses. Said fact was
recorded in the record Ex.PW-40/A pertaining to the TIP proceedings.
32. On 13.10.2002, SI Manohar Lal PW-29, prepared the site plan to scale Ex.PW-29/B of the place
where th dead body of the deceased was recovered. He did so at the instance of Insp.V.S.Meena.

33. On 16.10.2002 Inspector V.S.Meena PW-62, filed an application before the court of
Metropolitan Magistrate, Delhi for conduct of Test Identification of the wrist watch recovered at the
instance of accused Raj Kumar. On 21.10.2002, Test Identification of the said wrist watch was
conducted and Rajinder Pal Gupta PW-9, younger brother of the deceased, identified the wrist
watch recovered at the instance of Raj Kumar, as that of the deceased. The Test Identification
Proceedings were recorded vide Ex.PW-40/C. Being relevant to discuss the issue relating to the
identification of the watch as that of the deceased, it may be noted that it is recorded in Ex.PW-40/C
as under:-
"On opening of the pullanda one wrist watch make citizen quartz with gold chain is
found. All the wrist watches including the case property is displayed by me in a row
and the case property is lying at fourth position from my left and at sixth place from
my right. It is pertinent to mention here that the dial, chain and design of wrist
watches produced by IO for the purpose of mixing up is similar to that of the case
property. The make of wrist watches brought by IO is of different companies and
there is no wrist watch of make citizen. (Emphasis Supplied)"
34. On 14.10.2002 a secret information was received by Inspector J.R.Uike PW-63, posted at PS
Babai, District Hoshangabad, MP, that accused Roshan Singh is present at Rampur Tala near the
tube well of Kamal Singh, pursuant whereto he went there and arrested Roshan Singh at 6.10 P.M.
in the presence of two public witnesses; namely, Lalit Dubey PW-56 and Ram Bilas PW-57, as
recorded in the arrest memo Ex.PW-63/A2.
35. On the next day i.e. 15.11.2002 the SP, Hoshangabad, sent the information, Ex.PW-63/B, about
the arrest of Roshan Singh to the Commissioner of Police Delhi, pursuant whereto, Inspector VS
Meena, accompanied by Inspector Ram Chander PW-20 and SI Sukaram Pal PW-39, went to
Hoshangaband, where after filing an application and getting permission from the court at
Hoshangabad, Inspector V.S.Meena obtained the police custody of Roshan Singh and formally
arrested him at 04.00 P.M. as recorded in the arrest memo Ex.PW-39/G. On being interrogated by
Inspector V.S.Meena PW-62, in the presence of Inspector Ram Chander PW-20 and SI Sukaram Pal
PW-39, Roshan Singh made a disclosure statement Ex.PW-20/E, wherein he disclosed that he
hatched a conspiracy with Sharda Jain, Raj Kumar and Rajinder to murder the deceased and that
two other persons; namely, Pushpender and Nirvikar fired shots at the deceased in pursuance of the
said conspiracy. He further disclosed that he, along with three police officials; namely, Shri Pal
Singh Raghav, Rakesh Kumar and Satender Kumar had thrown the body of the deceased in the
canal; that one Subash who is a resident of village Chajjupur can shed some light on the said aspect
of the matter and that he can get recovered a gold ring and the mobile phone of the deceased as also
his mobile phone and the two pistols used for committing the murder of the deceased.
36. On 21.11.2002, Inspector V.S.Meena PW-62, came to know that Maruti car bearing registration
no.DDU 1371 belonging to Roshan Singh is lying unclaimed at Malkhana of PS Kharkoda, District
Meerut, UP since 09.09.2002. On the same day, Inspector V.S.Meena obtained the custody of the
said car and seized the same vide memo Ex.PW-62/N. SI Karan Singh PW-45, from the crime team
reached PS Kharkoda, on being summoned and inspected the car in question but no chance print

could be detected thereon as recorded in the report Ex.PW-45/A.
37. On 22.11.2002, Roshan Singh took the police party, consisting of Inspector V.S.Meena PW-62, SI
Sukaram Pal PW- 39 and SI Anil Kumar Chauhan PW-44, to Bijoli Mode, UP and got recovered his
mobile phone from the bushes and the same was seized vide memo Ex.PW-39/O. Thereafter Roshan
Singh led the said police officials to his residence and got recovered two country made pistols; two
live cartridges and one gold ring from a polythene bag which was kept hidden in a heap of cattle
feed, lying in a room of his house and the same were seized vide memo Ex.PW-39/L. Inspector
V.S.Meena prepared rough site plan Ex.PW-62/N of the residence of Roshan Singh; recording
therein at point „B the room where the afore-noted articles were recovered. He also prepared the
sketches of the pistols and live cartridges recovered at the instance of Roshan Singh, being
Ex.PW-39/H, Ex.PW-39/J and Ex.PW-39/K respectively. All the seized articles were deposited in
the Malkhana on 22.11.2002 as recorded vide entry No.1642 entered in the store room register (part
I) by HC Dinesh Kumar PW-43.
38. Thereafter Roshan Singh led the police officers and pointed out the spots where the deceased
was murdered and body of the deceased respectively was thrown into the canal, vide pointing out
memos Ex.PW-39/H and Ex.PW-39/N respectively. (It may be noted here that the spot which was
pointed out by accused Roshan Singh as the place of the murder of the deceased is the same which
was told by accused Sharda Jain and Raj Kumar as the spot where the deceased was murdered i.e.
the spot was already known to the police). (It may further be noted here that sketch of one of the
pistols recovered at the instance of accused Roshan Singh as also the pointing out memo of the place
of murder of the deceased prepared at the instance of Roshan Singh have been exhibited as
Ex.PW-39/H i.e. two documents have been given the same exhibit mark.) The mobile phone of the
deceased could not be found pursuant to the disclosure statement of accused Roshan Singh.
39. In his disclosure statement, Roshan Singh had named Subash, stating that Subhash could shed
some light on the aspect of the disposal of the dead body of the deceased, Inspector V.S.Meena
tracked Subhash PW-38, and recorded his statement Ex.PW-38/DA. Thereafter, Inspector
V.S.Meena filed an application Ex.PW-40/J before the Court of the Metropolitan Magistrate Delhi
for recording the statement of Subash under Section 164 Cr.P.C. Shri P.K.Jain PW-40, Metropolitan
Magistrate Delhi, recorded the statement Ex.PW-38/A dated 10.12.2002 of Subash, wherein he
stated that he is an agriculturist and resides in village Chajjupur. That on 24.08.2002 at around
06.00 PM he returned to his house after finishing work at his fields when some children told him
that a dead body is lying near the government bungalow situated near the canal. On hearing the
same, he proceeded to the house of Roshan Singh who was the Pradhan of his village to apprise him
of the said fact. On his way to the house of Roshan Singh he met Roshan Singh who was driving a
car and he told him about the dead body, upon which Roshan Singh told him that they should go to
the police station and give the said information. Thereafter he sat in the car of Roshan Singh and
while they were on their way to the police station they met three police officers; namely Shri Pal
Singh Raghav, Rakesh Kumar and Satender Kumar to whom they gave the information about the
dead body. The three police officers sat in the car of Roshan Singh. When the car reached near the
canal, Roshan Singh asked him to get down from the car and told him that he, along with the three
police officers would take care of the matter upon which he got down from the car. Roshan Singh

drove the car towards the canal and he returned to his house. Roshan Singh absconded from his
house since that day. He did not see the dead body with his own eyes. He came to know that the said
body was that of the deceased after reading a newspaper report a few days after the dead body of
Atma Ram Gupta was discovered.
40. On 30.11.2002 Inspector V.S.Meena took the two pistols recovered at the instance of accused
Roshan Singh to Dr.S.K.Aggarwal PW-21, for his opinion about the weapon. Vide report
Ex.PW-21/B, Dr.S.K.Aggarwal opined that the ante- mortem injury no. (1) found on the person of
the deceased could possibly be caused by one of the said two pistols.
41. In view of what was told to Inspector V.S.Meena by Subhash, it became apparent that Shri Pal
Singh Raghav, Rakesh Kumar and Satender Kumar became suspects regarding the disposal of the
dead body.
42. On 11.12.2002 Inspector V.S.Meena, accompanied by SI Sukaram Pal PW-39, went to PS Vijay
Nagar, Ghaziabad, UP where he arrested Sripal Singh Raghav and Satender Kumar at 6.00 PM as
recorded in the arrest memos Ex.PW-39/T and Ex.PW-39/U. On interrogation by Inspector
V.S.Meena, in the presence of SI Sukaram Pal PW-39, accused Sripal Singh Raghav and Satender
Kumar made disclosure statements Ex.PW-39/P and Ex.PW-39/Q respectively, wherein they
disclosed that along with Roshan Singh and another police officer; namely Rakesh Kumar, they
threw the body of the deceased into the canal. Both of them led Inspector V.S.Meena to the place
which had already been identified to the police as the place where the deceased as murdered and
vide pointing out memos Ex.PW-39/V, Ex.PW-39/X, Ex.PW-39/Y and Ex.PW- 39/W accused Sripal
Singh Raghav and Satender Kumar pointed out the 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
into the canal.
43. On the basis of secret information, Inspector V.S.Meena accompanied by SI Anil Kumar
Chauhan PW-44, arrested accused Rakesh Kumar at a bus stop situated at B-2 Block, Keshav
Puram, Delhi at 09.30 AM on 23.12.2002, as recorded in the arrest memo Ex.PW-44/K. On being
interrogated by Inspector V.S.Meena, in the presence of SI Anil Kumar Chauhan PW-44, accused
Rakesh Kumar made a disclosure statement Ex.PW-44/L wherein he disclosed that he along with
Roshan Singh, Sripal Singh Raghav and Satender Kumar had thrown the body of the deceased into
the canal. Thereafter vide pointing out memo Ex.PW-44/N, accused Rakesh Kumar pointed out the
place where the dead body of the deceased was lying before it was thrown into the canal.
44. On 13.01.2003, Inspector V.S.Meena, obtained the blood samples of the parents of the deceased
for the purposes of DNA testing and seized the same vide memo Ex.PW-62/X1.
45. On 16.01.2003 Inspector V.S.Meena, filed an application in the Court of Metropolitan Magistrate
Delhi for conduct of Test Identification of the ring recovered at the instance of accused Roshan
Singh. On 18.01.2003, the Test Identification of the said ring was conducted. Sumitra Gupta PW-18,
wife of the deceased, identified the ring recovered at the instance of Roshan Singh as that of the
deceased as noted in the record of the proceedings Ex.PW-40/M. The manner in which the TIP of

said ring was conducted, is recorded in Ex.PW- 40/M as under:-
"Today I.O. Insp V.S.Meena produced one sealed pullanda duly sealed with the seal
of V.S. On opening of the same, one gold ring is found in match box. The English
letter AR is engraved on the top of the ring. I.O. also produced eight other rings
which appear to be of gold. The design and size of these rings are similar to that of
case property. It is pertinent to mention here that on none of the said rings the
English letters AR is engraved" (Emphasis supplied)
46. In the meantime, some of the materials seized during the course of investigation; namely, the
blood samples of the parents of the deceased, the soil/earth lifted from the spot pointed out by
accused Sharda Jain and Raj Kumar as the place of the murder of the deceased, the clothes, artificial
teeth and viscera of the deceased, the sample of the vial used for preserving the viscera of the
deceased, the tyre of the car of Sharda Jain, two country made pistols and cartridges were sent to the
Forensic Science Laboratory for serological/chemical/ballistic examination.
47. Vide CFSL report Ex.P-1, it was opined that the samples of the blood of the parents of the
deceased and the sample of the tissue of the body recovered from the canal were subjected for DNA
isolation by organic extraction method and that the said sample of tissue belongs to the male child
of the parents of the deceased. Vide FSL reports Ex.PW-41/A and Ex.PW-41/B it was opined that the
earth/soil/mud lifted from the place of occurrence was found to be stained with human blood;
group whereof could not be determined and that blood could not be detected on the clothes and
artificial teeth of the deceased. Vide FSL report Ex.PW-66/A it was opined that the mud/soil lifted
from the place of occurrence and the soil/mud found stuck on the tyre of the car of Sharda Jain were
similar in physical characteristics. Vide 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
instance of Roshan Singh are live and can be fired through a .315 bore firearm. Vide FSL report
Ex.PW-59/A it was opined that blood or any other biological material could not be detected on the
car of Roshan Singh.
48. Armed with the aforesaid material, the prosecution filed a charge-sheet against the accused
persons. As per the charge-sheet, the broad contours of the case set up by the prosecution against
the accused persons are that accused Sharda Jain developed intimate relations with the deceased
due to which her husband left her. But, the deceased developed intimate relations with one
Memwati Berwala who was also a member of the Indian National Congress and a Municipal
Councillor. When the deceased did not end his relations with Memwati Berwala despite strong
objection raised by accused Sharda Jain, accused Sharda Jain tried to commit suicide by consuming
sulfas tablets. After the said incident, the relations between accused Sharda Jain and the deceased
became normal and accused Sharda Jain got elected as a Municipal Councilor due to the influence of
the deceased. However, after sometime, the deceased again developed intimate relations with
Memwati Berwala as also started ignoring accused Sharda Jain and promoted the political career of
Memwati Berwala at the cost of the career of accused Sharda Jain. The aforesaid conduct of the
deceased enraged accused Sharda Jain to such an extent that she decided to do away with the

deceased. Accused Sharda Jain confided in her brother Raj Kumar who agreed to aid Sharda Jain in
achieving her illegal desire. To give effect to the illegal desire of Sharda Jain he contacted accused
Roshan Singh and his i.e. Roshan Singh s driver Rajinder Singh. The four of them i.e. Sharda Jain,
Raj Kumar, Roshan Singh and Rajinder Singh met twice at the residence of Sharda Jain, where they
hatched a conspiracy to murder the deceased. To execute the conspiracy accused Roshan Singh
contacted accused Nirvikar and Pushpender, who agreed to kill the deceased. In pursuance of the
said conspiracy, on 24.08.2002, accused Sharda Jain made the deceased sit in her Indica car
bearing registration No.DL-3S- AB-0016, being driven by accused Rajinder Singh, and in a friendly
manner, led him to a Dak Bangla near a Rajwaha situated behind village Chajjupur, UP, where
accused Pushpender and Nirvikar fired shots at the deceased and caused his death. Thereafter
Sharda Jain along with Rajinder Singh left the spot and asked the other accused persons to dispose
of the body of the deceased. Roshan Singh asked the remaining accused persons; namely, Raj
Kumar, Pushpender and Nirvikar to disperse and told them that they would come back to said spot
in the evening to dispose of the body of the deceased. Before dispersing from the place of the crime,
the said accused persons removed the I-cards, wrist watch and gold ring of the deceased. However,
everything did not work out according to their plan inasmuch as Subash, who is a resident of village
Chajjupur, got knowledge about the presence of a body at the place in question. Notwithstanding the
said obstacle, Roshan Singh, with the aid accused Sripal Singh Raghav, Rakesh Kumar and Satender
Kumar managed to dispose of the body of the deceased by throwing the same in the canal flowing
near the place where the deceased was murdered.
49. 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 abduct and murder the
deceased; abducting and murdering the deceased in pursuance of the said conspiracy. Charges were
also framed against accused Sharda Jain, Raj Kumar, Roshan Singh, Sripal Singh Raghav, Satender
Kumar and Rakesh Kumar under Sections 120-B and 201 read with Section 120-B IPC for having
hatched a conspiracy to cause disappearance of the evidence by throwing the body of the deceased in
the canal in pursuance of the said conspiracy. Additionally, a charge under Section 25 of Arms Act,
1959 was framed against accused Roshan Singh for being in unlawful possession of a firearm. A
charge under Section 27 of Arms Act, 1959 was also framed against accused Pushpender and
Nirvikar for illegally using a firearm.
ANALYSIS OF THE EVIDENCE LED BEFORE THE TRIAL COURT
50. At the trial, the prosecution examined as many as 66 witnesses. We need not note the testimony
of the various police officers who took part in the investigation for they have deposed facts regarding
the respective role played by them during investigation which have already been succinctly stated by
us in the preceding paragraphs and in respect whereof not much submission were made during
arguments in the appeals. However, whenever necessary, to deal with the submissions made by
learned counsel for the appellants, such part of the testimony of the relevant witness would be
noted. We would also be splitting, while noting, the testimonies of the witnesses, whenever required
pertaining to the evidence throwing light on different facets/stages of the case of the prosecution.

51. With a view to have clarity in the analysis of the evidence led by the prosecution, we segregate
the relevant witnesses into 10 categories, clubbing in one category witnesses who have thrown light
on the same issue. A Witnesses who participated in the preparation of the necessary documents
prepared by the police till the FIR was registered:- HC Ashok Kumar PW-6, SI Shiv Raj Singh
PW-55, Const.Jitender PW-25, HC Savitri PW-27 and HC Sher Singh PW-
35.
52. HC Ashok Kumar PW-6, deposed that he recorded DD No.31 Ex.PW-6/A at about 01.00 A. on
25.08.2002 on the basis of the report lodged by Rajinder Pal Gupta PW-9, regarding the deceased
being missing. It may be noted here that the testimony of the said witness was not controverted by
the defence. SI Shiv Raj Singh PW-55, deposed that the endorsement Ex.PW-55/C was recorded by
him at 12.05 PM on 25.08.2002. No suggestion was given to the said witness in his
cross-examination regarding the recording of the said endorsement. Jitender PW-25, deposed
having handed over the endorsement Ex.PW-55/C to the duty officer at Police Station Keshav
Puram. HC Savitri PW-27, deposed having registered FIR Ex.PW-27/A at 12.20 PM on 25.08.2002.
HC Sher Singh PW-35, deposed having delivered copies of the FIR to the Ilaqa Magistrate and
senior police officers. B Witnesses to prove last seen, suspicious conduct of Sharda Jain and factum
of hatching of conspiracy by the accused persons:- Sumitra Gupta PW-18, Prabhu Yadav PW-17,
Manish PW-14, Om Prakash Chauhan PW-11 and Rajinder Pal Gupta PW-9.
53. Sumitra Gupta PW-18, the wife of the deceased, deposed that on 24.08.2002, at about 10.15 AM
the deceased left his residence in his Indica car bearing registration No.DL 6SA 0025, which was
driven by his 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 right hand and a
gold ring on which letters 'AR' were engraved and was also carrying a mobile phone, some cards and
papers. After sometime Prabhu Yadav returned home and told her that he had dropped the deceased
at the residence of Sharda Jain and that the deceased had told him to return to his house as he
would be going to the rally in the car of Sharda Jain. When the deceased did not return till evening,
she tried to contact him on his mobile phone having number 9810166101, but the same was
switched off. Thereafter, she contacted her children and the younger brothers of the deceased and
apprised them that the deceased was missing. She made a telephonic call to Sharda Jain to enquire
about the whereabouts of the deceased, in response whereto, Sharda Jain told her that the deceased
did not accompany her to the rally in question. After sometime, her son Amit Gupta called Sharda
Jain, who then informed that the deceased did accompany her to the rally, but stated that the
deceased got down from her car near ISBT when they were returning from the rally.
54. On being cross-examined about the relations between the deceased and herself, Sumitra Gupta
stated (Quote): „My husband was honest and loyal to people and was faithful to me. On being
questioned about the belongings of the deceased, the witness stated (Quote): „After lodging the
missing report of my husband with the police, the police had not taken any belongings of Atma Ram
from my house. It is wrong to suggest that police official Meena had come to my house and had
taken away the ring of my husband.....It is wrong to suggest that the ring Ex.PW-18/1 was with me

till 17.12.02. It is wrong to suggest that on 18.12.02, I had given the ring, Ex.PW-18/1 to
Insp.Meena'. It may be noted here that no specific suggestion was given to Sumitra Gupta that the
Investigating Officer collected the wrist watch, the ring or the I-cards of the deceased from her.
55. Prabhu Yadav PW-17, the driver of the deceased, deposed that he had dropped the deceased at
the residence of Sharda Jain in the morning of 24.08.2002. On reaching the residence of Sharda
Jain, the deceased told him to take back the car to his house and meet him in the evening. He had
seen the deceased, Sharda Jain and another person whom he cannot identify, sitting in the car of
Sharda Jain, being driven by Om Prakash Chauhan, the driver of Sharda Jain. On returning the
residence of the deceased, he handed over the keys of the car of the deceased to the wife of the
deceased and told her that accompanied by Sharda Jain the deceased had gone to attend the rally in
the car of Sharda Jain. Thereafter he left for his house. On the same day, at about 05.00 PM he
again returned to the residence of the deceased but the deceased was not present there. He
remained at the residence of the deceased till about 7.00 PM - 8.00 PM but the deceased did not
return.
56. On being cross-examined about the instructions given to him by the deceased on 24.08.2002 at
the time when he dropped the deceased at the residence of Sharda Jain, Prabhu Yadav stated
(Quote): 'When Atma Ram Gupta left for rally in the car of Sharda Jain he had told me to come to
his house at 05.00 PM and he had not told me that I should come to Kamal Clinic of Dr.Mahender
Pal Gupta'. It may 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 the deceased was last seen in the company of accused
Sharda Jain and Rajinder Singh; to prove the exchange of money between accused Roshan Singh
and Sharda Jain under suspicious circumstances; the visits of accused Raj Kumar, Roshan Singh
and Rajinder Singh at the residence of accused Sharda Jain and the suspicious conduct of Sharda
Jain on 24.08.2002.
58. Om Parkash Chauhan deposed that he and accused Rajinder Singh were present in the house of
Sharda Jain in the morning of 24.08.2002. The deceased came to the house of Sharda Jain in his
Indica car, being driven by his driver Prabhu Yadav. Thereafter, the deceased sent back his car with
his driver and occupied a seat in the car of Sharda Jain along with Sharda Jain and Rajinder.
Thereafter, he drove the said car to Firozshah Kotla ground where a rally was organized by the
Congress Party. On reaching there, the deceased and Sharda Jain went to attend the rally, while he
and Rajinder remained seated in the car. Within ten-fifteen minutes of going to the rally, the
deceased and Sharda Jain came back to the car and Sharda Jain instructed him to go towards
Ghaziabad. When the car reached near the red light at Hanuman Mandir, Ring Road, Sharda Jain
asked him to stop the car and leave for his house as he was not feeling well, upon which he enquired
from Sharda Jain as to who would drive the car in his absence, to which, she replied that Rajinder
would drive the car. Thereafter, he got down and saw accused Rajinder drive the car. That in the
intervening night of 24/25.08.2002 a fat man came to his house and told him that Sharda Jain is
calling him, whereupon he went downstairs but did not find Sharda Jain present there. The said fat

man insisted that he should immediately go and meet Sharda Jain at her residence to which he
replied that he would meet her in the morning. Sometime thereafter, he received a telephonic call
from the driver of the deceased i.e. Prabhu Yadav who made enquiries about the whereabouts of the
deceased and he apprised him of the above facts. He went to the residence of the deceased and
apprised the family members of the deceased with the above facts.
59. On being cross-examined by the learned APP since Om Prakash deviated from his statement
recorded under Setion 161 Cr.P.C., Om Parkash stated that eight-ten days prior to 24.08.2002,
Acused Raj Kumar along with two other persons whom he cannot identify, had come to the
residence of Sharda Jain. He denied having listened to any talks between Sharda Jain, Raj Kumar
and said two persons regarding payment in sum of Rs.1 lakh or that he had given any such
statement to the police. He stated that on 22.08.2002 Raj Kumar along with said two persons again
came to the residence of Sharda Jain. On being confronted with his statement Ex.PW-11/DA
wherein it was recorded that accused Sharda Jain had come to his residence and threatened him in
the intervening night of 24/25.08.2002, he stated (Quote): 'It is incorrect to suggest that in the
night at about 12:00 of 24.8.2002 Sharda Jain had also come to my house or that she told me that I
should not tell to anybody that Atma Ram Gupta was also with her on that day otherwise
consequences would not be good nor I so stated to the police. Confronted with portion C to C of
mark PW-11/A where it is so 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 therefore did not go to the
residence of accused Sharda Jain. On being confronted with the omission to mention the fact in the
statement Ex.PW- 11/DA that accused Sharda Jain had told him on 24.08.2002 that they had to go
towards Ghaziabad, the witness stated (Quote): 'Madam Sharda Jain told me that they had to go
towards Ghazibad. Confronted with statement Ex.PW-11/DA where it is not so recorded. It is
incorrect to suggest that I did not state to the police because Madam Sharda Jain had not told me
that they had to go towards Ghaziabad.' The same was the reply of the witness when confronted with
the omission in the statement Ex.PW-11/DA to mention the fact that the driver of the deceased
made a telephonic call and that he visited the residence of the deceased on 24.08.2002. It may be
noted here that Om Prakash stated that the police had kept him in police station for two days after
his visit to the police station on the intervening night of 24/25.08.2002. It is further noted that
neither any question was put, nor any suggestion was given to the witness in his cross-examination,
regarding the factum of visit of the fatty man to his residence on 24.08.2002.
61. Shanti PW-10, the mother of the driver of Sharda Jain i.e. the mother of Om Prakash PW-11,
deposed that her son was employed as a driver with Sharda Jain and that she does not know Sharda
Jain. One night Sharda Jain had come to her residence and sent a boy inside her residence to call
her son, whereupon she asked her son to go and meet Sharda Jain. No talks took place between
Sharda Jain and her son in her presence.
62. On being cross-examined by the learned APP as she was testifying at variance with her
statement recorded by the police pertaining to the afore-noted testimony, she stated (Quote): „It is

incorrect to suggest that I know Sharda Jain. I cannot say if it was 24.08.2002 but however, it was
about 12 in the night when one boy came to me and asked that Om Parkash had been called by
Sharda Jain . It is relevant to note that the testimony of the witness was not controverted by the
defence.
63. Manish PW-14, the son of Mahender Pal Gupta PW-8 a friend of the deceased, deposed that on
24.08.2002 he attended a rally at Firozshah Kotla ground. He had last seen the deceased in the rally
at about 12 noon. On the way after returning from the rally, his car was moving behind a car in
which the deceased along with Sharda Jain and accused Rajinder Singh were traveling and that the
said car was being driven by the driver of Sharda Jain. He saw that the said car stopped near the red
light at Nigam Bodh Ghat, whereupon the driver of the car got down and started walking towards
ISBT. He made enquiries from the deceased, who told him that driver of Sharda Jain has left as he
was not feeling well and that accused Rajinder would drive the car in the absence of the driver of
Sharda Jain. Thereafter, accused Rajinder sat on the driver s seat and drove the car towards ISBT.
That he first identified accused Rajinder on 2.10.2002 at PS Keshav Puram when he had gone there
to lodge a report about his mobile phone being missing.
64. On being cross-examined about his mobile phone being missing, Manish stated (Quote): 'I had
lost my mobile phone and therefore, I had gone to the PS Keshav Puram on 2.10.2002 to make
report about it. I did not so tell to the police in my statement under Sec.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 the mobile has not been recorded in the PS till
date because I found my mobile in my car as it was found on the next day.......I do not remember the
number of my mobile which had misplaced when I had gone to the PS to make the report on
25.8.2002. It is wrong to suggest that I do not recollect the number of my mobile phone because I
had not gone to the PS on 2.10.2002.
65. Rajinder Pal Gupta PW-9, the younger brother of the deceased, deposed that in the morning of
24.08.2002 the deceased left his house in his Indica car being driven by his driver Prabhu Yadav to
go to the house of Sharda Jain. The deceased was wearing a wrist watch with a gold chain, one gold
ring and off-white coloured Safari suit and was also carrying a mobile phone having number
9810166101 at the time when he left the house. On reaching the house of Sharda Jain, the deceased
asked his driver to leave from there and directed him to meet him at Kamal Clinic in the evening,
but the deceased did not come to the said clinic. Sumitra Gupta, the wife of the deceased, informed
him that she had made a telephonic call to Sharda Jain, who told her that she is not aware about the
whereabouts of the deceased. Prabhu Yadav, the driver of the deceased, also confirmed to him that
he had dropped the deceased at the house of Sharda Jain in the morning. On making enquiries from
Om Prakash Chauhan, the driver of Sharda Jain, Om Prakash Chauhan informed him that he had
taken the deceased, Sharda Jain and another person to the rally in the car of Sharda Jain; the
deceased and Sharda Jain returned to the said car after attending the rally and that he left the car
near red light at Hanuman Mandir on his way, after returning from the rally, whereupon the third
person sitting in the car started driving the same. Thereafter Sumitra Gupta again contacted Sharda
Jain, who then informed her that the deceased went with her in her car to the rally but got down
from her car near ISBT when they were returning from the rally as he had met some known person

there. Amit Gupta, the son of the deceased, also made a telephonic call to Sharda Jain in his
presence wherein Sharda Jain told him that the third person sitting in the car was her
brother-in-law Sunil Jain, which fact was found to be false by the police.
66. On being cross-examined about his presence at the residence of the deceased on 24.08.2002 at
the time when the deceased left the residence of Sharda Jain, Rajinder Pal Gupta stated (Quote): 'On
24.8.2002 Atma Ram Gupta had left the house to attend the Congress Rally in my presence. Volt : I
have my office in Tri Nagar where I go daily. I usually used to go to the house of my brother Atma
Ram Gupta. If the police had asked me if Atma Ram Gupta left his house in my presence on
24.8.2002 then I must have so stated. At this stage the defence counsel has asked the witness to go
through his Ex.PW9/C and then answer if Atma Ram Gupta had left the house in his presence. The
witness has stated that it is not so written in Ex.PW9/C.' C Witnesses to prove the deposit of the
wrist watch and the gold ring of the deceased recovered at the instance of accused Raj Kumar and
Roshan Singh in the Malkhana :- Inspector V.S.Meena PW-62 and HC Dinesh Kumar PW-43.
67. Inspector V.S.Meena PW-62, deposed that the 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 deposited in the Malkhana on 28.08.2002
and 22.11.2002 and that he had made entries in the Malkhana Register in the said regard. It may be
noted here that no suggestion to the contrary was given to the said witnesses.
D Witnesses to prove the identification of the body of the deceased: - Mahender Pal Gupta PW-8,
Rajinder Pal Gupta PW- 9, Ved Prakash Gupta PW-15, Rajpal Gupta PW-16, Amrit Lal Singhal
PW-37 and Zaheer Ahmad PW-36.
68. Mahender Pal Gupta PW-8, a friend of the deceased, deposed that on 31.08.2002 along with the
relatives of the deceased he had gone to a canal near village Gulawati where he saw the body of the
deceased lying on the bank of said canal. The body of the deceased was swollen and was clothed in
an off-white colored safari suit. A label of „Lovely Tailors was stitched on the shirt of the safari suit.
The deceased had 4 artificial teeth and that the same were not found in the jaw when the body was
recovered.
69. On being confronted with the photographs Ex.DX and Ex.DX-1, Mahinder Pal Gupta stated
(Quote): „The photographs of the dead body were taken on 31.08.2002. When I saw the body, then
the wrist watch was found wearing on the left hand of Atma Ram Gupta and it also reflects in the
photographs Ex.DX and DX-1. (It may be noted here that the said statement of the witness strikes
a discordant note with the case of the prosecution for the reason the claim of the prosecution is that
the wrist watch of the deceased was removed by accused Raj Kumar after the death of the deceased
and that the same was recovered at the instance of accused Raj Kumar).
70. Rajinder Pal Gupta PW-9, Ved Prakash Gupta PW- 15, Rajpal Gupta PW-16, the younger
brothers of the deceased and Amrit Lal Singhal PW-37, a friend of the deceased, deposed that they
had gone to a canal near village Gulawati where they found the body of the deceased lying on the

bank of said canal. Additionally, Rajinder Pal Gupta deposed that an off-white colored safari suit
was found on the body and that the artificial teeth were found in the jaw. A label of „Lovely Tailors
was found stitched on the shirt of the said safari suit. (It may be noted here that no question
regarding the presence of a wrist watch on the body of the deceased was put to the said witnesses in
their cross-examinations).
71. Zaheer Ahmad PW-36, deposed that he runs a tailoring shop in the name and style of „Lovely
Tailors at Tri Nagar, Delhi. The deceased used to get his clothes stitched by him and that he
stitches his label „Lovely on the clothes stitched by him.
E Witnesses to prove the post-mortem report of the deceased:- Dr.S.K.Aggarwal PW-21.
72. Dr.S.K.Aggarwal PW-21, deposed that he conducted the post-mortem of the deceased on
31.08.2002 and that the post-mortem report Ex.PW-21/A as also the report Ex.P-W21/B regarding
the opinion on the weapon of offence were prepared by him.
F Witnesses to prove the reports submitted by the Forensic Science Laboratoy:- A.K.Srivastava
PW-41, Sri Narain PW-42, K.C.Varsheny PW-50, Dr.Rajinder Kumar PW-59 and Dr.Swaroop
Vedanand PW-66.
73. A.K.Srivastava PW-41, deposed that the FSL reports Ex.PW-41/A and Ex.PW-41/B were
prepared by him. Sri Narain PW-42, deposed that the FSL report dated 29.01.2003 was 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 examined by him were not in
a working condition and that he did not examine them.
75. Dr.Swaroop Vedanand PW-66, deposed that FSL report Ex.PW-66/A was prepared by him. He
further deposed that he holds a degree in the Masters of Science in Physics, M.Phil and Ph.D. and
that he has been working as Scientific Assistant and Scientific Officer in FSL since 1993. It may be
relevant to note that as per the report Ex.PW-66/A the physical characteristics of the soil scrapped
from the right rear tyre of the Indica car of accused Sharda Jain were the same as that of the soil
lifted from the spot pointed out by accused Sharda Jain and her brother Raj Kumar as the place
where the deceased was murdered.
76. On being questioned about his credentials during cross-examination, Dr.Swaroop Vedaanand
stated: „It is correct that I have not studied any course in Geology. I have not studied any degree or
diploma in structural geology or physical geology. However, structural physics forms part of a
degree course in physics. On being questioned about the methodology adopted by him for carrying
out the examination of the soil, he stated: „It is correct that I did not carry out any Chemical
examination of the soil supplied to me in the present matter so as to ascertain its various
components or as to its salinity. It is correct that I had not mentioned the volume of different

components of the soil sample examined by me. The elevation of the place from where the alleged
samples were lifted from the sea level were not supplied to the laboratory..........Witness further
states that on account of difference in quantity of samples etc it is difficult to give an opinion of
identical physical character-sticks or for that matter some physical character-sticks. G Witnesses to
prove the ownership of the articles recovered at the instance of the accused persons:- Subash
Chander PW-2, Yadukuleshwar Dass PW-5, Rajinder Pal Gupta PW-9, Sumitra Gupta PW-18, P.K.
Jain PW-40 and Baldev Kumar PW-52.
77. Subash Chander PW-2, President of All India Crime Prevention Organization, deposed that the
deceased enrolled himself as a member of All India Crime Prevention Organization on 08.03.1995
and that the I-card Ex.PW-2/A recovered at the instance of accused Pushpender was issued to the
deceased on the same day. He further deposed that the membership of the deceased expired on
31.12.1995. Yadukuleshwar Dass PW-5, Vice-President of International Society for Krishna
Consciousness (ISCKON), deposed that the deceased was a member of ISCKON and that the I-card
Ex.PW- 5/A recovered at the instance of accused Nirvikar was issued to the deceased. It may be
noted here that the testimony of the said two witnesses was not controverted by the defence.
78. Rajinder Pal Gupta PW-9 and Sumitra Gupta PW-18, the younger brother and the wife
respectively of the deceased, deposed that they had identified the wrist watch Ex.P-4 and the ring
Ex.PW-18/1 of the deceased in a Test Identification proceedings. On being questioned about the
wrist watch in question, Rajinder Pal Gupta stated (Quote): 'Atma Ram Gupta had gone to Singapur
perhaps in the year 1996 and from where he had brought the wrist watch Ex. P-4 but I was not
present when he purchased the watch.....It is correct that there 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 TIP of the wrist
watch and the gold ring recovered at the instance of accused Raj Kumar and Roshan Singh and that
the said wrist watch and ring were identified as belonging to the deceased by Rajinder Pal Gupta and
Sumitra Gupta respectively. He also deposed having prepared the record in respect of the said TIP
proceedings i.e. Ex.PW-40/C and Ex.PW-40/G.
80. Baldev Kumar PW-52, deposed that he runs a jewellery shop under the name and style of Gogna
Jewelers at Narang Colony, Tri Nagar. That on 23.10.2001 the deceased purchased a gold ring from
him on which the letters „AR were engraved and that he issued a bill Ex.PW-52/A to the deceased
in said regard. The ring Ex.PW-18/1 recovered at the instance of accused Roshan Singh is the same
ring which was purchased by the deceased from him.
H Witnesses to prove the record relating to the mobile phone of accused Sharda Jain :- Gulshan
Arora PW-34, Anu Anand PW-65 and Inspector V.S.Meena PW-62.
81. Gulshan Arora PW-34, an employee of cellular company HUTCH, produced the record
pertaining to mobile number 9811508688. On basis of the said record, he deposed that the said

number is registered in the name of Sharda Jain. He further deposed that the call record
Ex.PW-34/A pertaining to the said number is for the period 24.8.2002 to 27.8.2002.
82. Anu Anand PW-65, an employee of the cellular company HUTCH, produced the Cell ID Chart
Ex.PW-65/A, which record indicates the locations of the various towers installed by cellular
company HUTCH in Delhi and NCR and proved the same.
83. A cumulative reading of the documents Ex.PW-34/A and Ex.PW-65/A shows that on
24.08.2002 incoming calls were received on the number 9811508688 at Shalimar Bagh at 9.09
A.M., Sarai Rohilla at 11.42 A.M., Turkman Gate at 12.05 P.M. and Raj Nagar (Ghaziabad) at 4.18
P.M., Mohan Nagar (Ghaziabad) at 4.32 P.M., Dilshad Garden at 4.52 P.M. and Mori Gate at 5.11
P.M.; outgoing calls were made from the number 9811508688 at Raj Nagar (Ghaziabad) at 4.21
P.M., Zaina Tower, Raj Nagar (Ghaziabad) at 4.27 P.M., Navyug Market (Ghaziabad) at 4.30 P.M.
and Ashok Vihar at 5.31 P.M.
84. Inspector V.S.Meena PW-62, deposed that he obtained the call record Ex.PW-62/A of the
mobile number 9811508688 pertaining to the period 01.06.2002 to 26.08.2002 during the course
of the investigation of the present case. He further deposed that on the basis of the said record he
prepared a chart, Ex.PW-62/A1 which shows the movement of the mobile phone No.9811508688 on
24.8.2002.
85. At this juncture, it may be noted that the call details pertaining to the mobile No.9811508688 for
the date 24.08.2002 contained in the call records Ex.PW-34/A and Ex.PW-62/A are exactly the
same.
I Witnesses to prove the motive of Sharda Jain to murder the deceased:- Mahender Pal Gupta PW-8,
Captain Dr.Satish Chand Rajput PW-3, Const.Satbir Singh PW-7, ASI Baljeet Singh PW-19, Dr.Sunil
Markan PW-24, HC Bhagirath PW-28 and Tariq Nasir PW-58.
86. Mahender Pal Gupta PW-8, a friend of the deceased, deposed that he runs a medical clinic at
Keshav Puram, Delhi and that Sharda Jain used to visit his clinic along with the deceased. The
deceased provided help to Sharda Jain when she contested elections for the post of Municipal
Councilor and that 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 Committee, the deceased made Memwati
Barwala, who was also a municipal councilor, a chief guest at a function organized at a school,
instead of her. She further told him that she liked the deceased and because of said liking, she has
left her husband. Sharda Jain also told him that the deceased was developing intimate relations with
Memwati Barwala and that he should advise the deceased to discontinue his relations with Memwati
Berwala. Sharda Jain told him that on one occasion she tried to commit suicide by consuming sulfas
tablets on account of her liking for the deceased. She told him that she consumed sulfas tablets
because the deceased started liking Memati Berwala. Sharda Jain asked him to advise the deceased
to mend his ways, else the consequences would not be good. After her talks with Sharda Jain, he

talked to the deceased about his talks with Sharda Jain, but the deceased did not pay any heed to his
advice.
87. On being cross-examined about his talks with Sharda Jain, Mahender Pal Gupta stated (Quote):
'It is also correct that because of my such relations with Atma Ram Gupta, accused Sharda Jain
made complaint to me against Atma Ram Gupta. It is correct that accused Sharda Jain had told me
that Atma Ram Gupta had developed physical relations with Mem Wati Berwala and such relations
was also with her and that she did not like such relations of Atma Ram with Mem Wati Berwala....I
do not recollect if Sharda Jain told me that when Atma Ram Gupta, did not act on her advice to have
no physical relations with Mem Wati Berwala and therefore, she had consumed Shalfas tablet. The
attention of the witness has been drawn towards the portion A to A of his statement under Section
161 Cr.P.C. dt. 28.08.2002 mark PW8/C where it is so recorded. But the witness states that he does
not recollect. Sharda Jain told me that Atma Ram Gupta was bent upon to spoil her political career
and was taking steps to develop political career of Memwati Berwala, and that for that she could go
to any extent....... The elections to Municipal Corporation of Delhi were held in Feb. 2002. No
election office was opened in premises A-1 Keshav Puram before the said elections of Feb. 2002. I
stated to the police that Sharda Jain told me that because of her said relations with Atma Ram
Gupta, she left her husband. (confronted with statement mark PW8/C, now exhibited as
Ex.PW8/DA where it is no recorded) I do not recollect the date but it was month of July 2002 when
Sharda Jain told me the facts that I have deposed today I did not tell police that those facts were told
to me by Sharda Jain in the month of July 2002.
88. Dr.Satish Chand Rajput PW-3, deposed that he runs a dental clinic at Vivek Vihar, Delhi. He
deposed that the deceased visited his clinic on four dates, namely, 13/20/21/23 August 2002. On
30.07.2002 the deceased visited his clinic after the visiting hours. The deceased was accompanied
by Sharda Jain in some of the visits. On 20.08.2002 he put an artificial denture from upper first
canine to upper right canine in the jaw of the deceased. During one of the aforesaid visits, Sharda
Jain told him that she would make payment for the treatment rendered by him to the deceased. That
the photostat copies of the record of the vist 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 pertaining
to the patients of PW-3 are in ink. It may further be noted that the pair of moulded POP denture set
with name of Dr.S.C.Rajput engraved thereon recovered from the car of Sharda Jain on 27.8.2002,
seizure whereof has been recorded in the memo Ex.PW-44/C has not been put to the witness for
purposes of identification.)
89. On being cross-examined about the entries pertaining to the visits of the deceased at his clinic,
Dr.Satish Chand Rajput stated (Quote): 'The entries Ex.PW-3/A to E are not in my hand, rather the
same are in the hand-writing of my assistant. The entry register starts from 1.4.2002 to 29.7.2002
are in pen ink. The entries of 30.7.2002 is written in pencil. In the register, on 13.8.02, the only
entry is in regard to the visit of Atma Ram Gupta and Sharda Jain and the entry is in pencil. It is
correct that on 20.8.02 there are five entries in my register and out of them all are in pen except the
entry of Atma Ram Gupta, which is in pencil. Similarly, there are four entries on 21.8.02 and the

first three are written in pen but the last entry of Atma Ram Gupta is written in pencil. Similarly on
23.8.02, there are three entries in my register and out of them first two are written in pen and the
third of Atma Ram is written in pencil. It is wrong to suggest that the writer of the entries in pen and
pencil are different.
90. On being questioned about the factum of overwriting in the entries pertaining to the visits of the
deceased, Dr.Satish Chand Rajput stated (Quote): 'It is correct that there is overwriting of the figure
"4" of the date 23.8.02 in the register. The figure "4" has been written over the figure "3".
91. It is also worthwhile to note that suggestions were given to the witness that the deceased visited
his clinic on 24/25/26 August 2002, which suggestions have been denied by the witness.
92. Const.Satbir Singh PW-7, deposed that on 25.10.2002 (should read 25.10.2000) he received an
information from two different sources that Sharda Jain has consumed some tablets and that she
has been admitted in the hospital, based whereon, he recorded DD Entries Ex.PW-7/A and
Ex.PW-7/B. (It may be noted here that a perusal of the aforesaid entries shows that the same have
been recorded on the intervening night of 24/25.10.2000 therefore it is clear that either the witness
has inadvertently deposed regarding the date in question or that there has been a typographical
error at the time of the recording of the evidence).
93. ASI Baljeet Singh PW-19, deposed that he conducted investigation pertaining to the incident
dated 25.10.2000 of consumption of sulfas tablets by Sharda Jain and that he prepared two DD
entries Ex.PW-19/A and Ex.PW-19/B in said regard. It may be noted here that DD entry
Ex.PW-19/B records that Sharda Jain gave a statement to the police to the effect that she
inadvertently consumed sulfas tablets for the reason she was suffering from an illness as also was
tense on account of the fact that her husband left for Madras but did not return home in spite of
considerable time lapsing.
94. Dr.Sunil Marken PW-24, deposed that on 25.10.2000, Sharda Jain was admitted at Maharaja
Agarsen Hospital as she had consumed sulfas tablets and that he prepared 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 Sharda Jain informed
the police that 6-7 months ago, her husband Ishwar Jain left for Madras and that he did not return
home even up till 27.03.2001. That she has no knowledge about the whereabouts of her husband.
96. Tariq Nasir PW-58, Senior Correspondent, Rashtriya Sahara, deposed that the news item with
the photograph Ex.PW-58/A was published in the Delhi edition of Rashtriya Sahara on 22.8.2002.
We may note that the news item pertains to a function of a park being inaugurated and Memwati
Berwala present at the function and her announcing that she would ensure that Rohini becomes
garbage and corruption free area. The photograph shows Atma Ram Gupta i.e. the deceased
standing next to Memwati Berwala. J Residual Witnesses :- P.S.Chauhan PW-1, Mahender Pal

Gupta PW-8, Ram Kumar PW-22, Ravinder Singh PW-23, Jai Chand PW-26, Subash PW-38, SI
Kalicharan PW-53 and Dr.Prabhat Chaurasia PW-64.
97. Subash PW-38, deposed the facts recorded in his statement Ex.PW-38/A under Section 164
Cr.P.C., contents whereof have already been noted by us in para 41 above.
98. On being cross-examined about the factum of his inimical relations with accused Roshan Singh,
Subhash admitted (Quote): 'It is correct that my father Kishan Singh once contested against accused
Roshan Singh for the post of village pardhan and in which my father lost.......It is correct that after
Roshan Singh had won the election one complaint was lodged against him regarding
misappropriation of village funds. Voltd. I was one of the signatory to the said complaint alongwith
other villagers. On being cross-examined about his knowledge of the identity of the dead body of
the deceased he stated (Quote): 'I do not remember whether I stated in my statement to the IO that
after about three days I came to know from news papers that the said dead body belogned to Atma
Ram (confronted with statement EXPW 38/DA where the fact that "after three days from the news
papers I came to know" is not mentioned).....Police as per my knowledge came to our village either
on the third or fourth day of the incident. On that day the police did not meet me. It is correct that
my statement was recorded by IO after about 3 months. During the said period of 3 months I myself
did not go to any police official to inform about the above incident.
99. Mahender Pal Gupta PW-8, a friend of the deceased, deposed that on 28.08.2002, while he was
sitting at his clinic, he saw a news item on TV, regarding the deceased being missing. He further
learnt from the news item that the police, along with accused Sharda Jain, Raj Kumar and Raju had
gone to village Chajjupur in connection with the present case. On reaching the rajwaha situated at
village Chajjupur, he saw that accused Sharda Jain, Raj Kumar, Raju and Roshan Singh were
present there. He further deposed that the police was making inquiry from accused Roshan Singh
and that he does not recollect whether other accused persons; namely, Sharda Jain, Raj Kumar and
Raju took part in the investigation. He stated that he appended his signatures on certain papers
prepared in connection with the inquiries made from accused Roshan Singh as also signed the
pointing out memos Ex.PW-8/A and Ex.PW-8/B of accused Sharda Jain and Raj Kumar. He
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 correct that on 28.8.2002 from the Media
report, I had come to know that the police had gone to village Chajjupur along with accused Sharda
Jain and Raj Kumar @ Raju and that I had not come to know that third person had also
accompanied the police......I had stated before the police that on 28.8.2002 when I reached to village
Chajjupur then accused Roshan Singh was also present there and the police was making inquiry
from him (confronted with statement mark PW8/C where it is not so recorded) It is correct that no
person by the name of Roshan Singh met me in village Chajupur when I had gone there on
28.8.02.It is correct that accused Sharda Jain and Raj Kumar @ Raju was speaking about Roshan
Singh when I visited village Chajupur.......I had seen accused Rajinder as I identified in the court
today, in the police station at the time of my visit after 15/20 days of 31.8.2002'.

101. P.S.Chauhan PW-1, Head Clerk, Motor Licensing Office, Delhi, deposed that Indica car bearing
registration No.DL 3S AB 0016 is registered in the name of Sharda Jain. The witness was not
cross-examined by the defence and thus his testimony has gone unchallenged.
102. Ram Kumar PW-22, Ravinder Singh PW-23 and Jai Chand PW-26 deposed that they saw the
body of the deceased lying in the canal in the morning of 31.08.2002. Additionally, Ravinder Singh
PW-23 and Jai Chand PW-26 deposed having witnessed the investigation conducted by the police at
the time of the recovery of the body of the deceased.
103. SI Kalicharan PW-53, deposed that Maruti car bearing registration No.DDU 1371 was deposited
in the Malkhana of PS Kharkoda on 09.09.2002 and that the custody of the same was handed over
to Inspector V.S.Meena on 21.11.2002. Dr.Prabhat Chaurasia PW-64, deposed that he sold Maruti
car bearing registration No.DDU 1371 to Roshan Singh on 27.11.2001. It may be noted here that the
said witnesses were not cross-examined by the defence and thus their testimonies have gone
unchallenged.
104. Inspector V.S.Meena PW-62 deposed facts pertaining to the investigation conducted by him.
He deposed that he prepared the various seizure memos and that he seized the exhibits recorded in
the seizure memos and deposited the same in the malkhana. He deposed having sent various
exhibits for forensic opinion and the reports received. Since, while noting the case of the prosecution
with reference to the contemporaneous investigation allegedly conducted, where role of Inspector
V.S.Meena has been extensively noted, we are not noting his testimony which is fairly lengthy, but
clarify that would be noting such parts thereof as are relevant to be noted while dealing with the
submissions made during arguments in the appeals.
105. In the backdrop of the aforesaid evidence led by the prosecution, the accused were examined
under Section 313 Cr.P.C.
106. In her examination under Section 313 Cr.P.C., accused Sharda Jain stated that she is innocent
and denied everything save and except admitted that she and Atma Ram Gupta in the company of
accused Rajinder left her residence on 24.8.2002 to attend a Congress rally. She also admitted that
after the rally Atma Ram Gupta left in her car but stated that he got down at ISBT. She also admitted
that accused Raj Kumar is 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 Yadav and from there he came to your house and after having talks
with you Atma Ram asked his driver Prabhu Yadav (PW-17) to take back the car to
his house and Atma Ram Gupta sat in your car alongwith you and which was driven
by your driver Om Parkash Chauhan. One other person namely co-accused Rajinder
also sat alongwith you people in the said car. What you have to say?
Ans: It is correct.

Ques 20: It is further in evidence against you that on 24.08.02 after attending the
Congress Rally at Feroz Shah Kotla Ground for about 15/20 minutes you alongwith
Atma Ram Gupta and your co-accused Rajinder Singh left in your Indica car being
driven by your driver PW11 Om Prakash Chauhan for Ghaziabad and at near Jamuna
Bazar, Hanuman Mandir, ISBT you asked PW11 to go back to his house and the car
was thereafter being driven by Rajinder Singh? What you have to say?
Ans: It is incorrect that after the rally we were to go to Ghaziabad.
Ques 27: It is in evidence against you that when the family members of Atma Ram
Gupta made enquiries from Om Parkash Chauhan, the driver of your Indica car and
came to know that Atma Ram Gupta left the Rally alongwith you in your car for
Ghaziabad, that they again made enquiries from you but you again claimed ignorance
stating that Atma Ram Gupta had got down at ISBT for his some personal work.
What you have to say?
Ans: It is incorrect but it is a fact that Atma Ram Gupta got down at ISBT."
(Emphasis Supplied)"
107. In his examination under Section 313 Cr.P.C. accused Raj Kumar only admitted knowing
accused Sharda Jain as his sister. He denied everything else.
108. In his examination under Section 313 Cr.P.C. accused Roshan Singh only admitted knowing
Pushpender and Nirvikar. He denied knowing or ever meeting any other co- accused. He denied
every piece of incriminating evidence put to him.
109. In their examinations under Section 313 Cr.P.C. accused Pushpender and Nirvikar denied
everything.
110. In their examinations under Section 313 Cr.P.C. Sripal Singh Raghav, Rakesh Kumar and
Satender Kumar pleaded innocenc e and denied everything. They stated that they have been falsely
implicated in order to save Govind Singh Rawat, SO of PS Gulawati. But how, they failed to disclose.
111. The accused led no evidence in their defence.
ANALYSIS OF THE IMPUGNED JUDGMENT
112. After considering the evidence led by the prosecution as also the arguments advanced by the
defence, vide impugned judgment and order dated 21.12.2006, the learned Trial Court drew 7
conclusions; namely, (i) that on 24.8.2002 the deceased was last seen alive in the company of
accused Sharda Jain and Rajinder Singh; (ii) that the date of death of the deceased is 24.08.2002;
(iii) that the prosecution has been able to establish the motive of Sharda Jain to do away with the
deceased; (iv) that a false claim was made by Sharda Jain that she was not present at Ghaziabad on
24.08.2002 (v) that the testimony of 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, Prabhu Yadav PW-17, the driver of Sharda Jain, Om Parkash
Chauhan PW-11, the driver of Sharda Jain and Manish PW-14, a friend of son of the deceased,
coupled with the fact that Sharda Jain admitted the presence of Rajinder Singh in her car on
24.08.2002 in her examination under Section 313 Cr.P.C. conclusively establishes that the deceased
was last seen alive in the company of Sharda Jain and Rajinder Singh. In coming to the said
conclusion, particular emphasis was laid down by the learned Trial Court on the fact that the
contents of the DD Entry No.31 Ex.PW-6/A, has not been controverted by the defence.
114. In coming to conclusion (ii), the learned Trial Court noted the state of the body of the deceased
recorded in the post-mortem report Ex.PW-21/A of the deceased and analyzed the same in the light
of medical jurisprudence.
115. In coming to conclusion (iii), the learned Trial Court was influenced by the facts that (i) the
suggestion given by the defence to Dr.S.C.Rajput PW-3, in his cross-examination that the deceased
visited his clinic on 24/25/26.08.2002 corroborates the testimony of the witness that the deceased
used to visit his clinic; (ii) the fact that a denture set on which words „S.C.Rajput were engraved
was recovered from the car of Sharda Jain and that there is no evidence to show that Sharda Jain
was using artificial teeth corroborates the testimony of Dr.S.C.Rajput PW-3, that Sharda Jain used
to accompany the deceased during his visits to his clinic which in turn establishes that Sharda Jain
and the deceased were having close relations; (iii) testimony of Mahender Pal Gupta PW-8,
establishes that Sharda Jain was unhappy and angry with the deceased as he had developed close
relations with Memwati Barwala and was ignoring her; (v) the fact recorded in the DD entry,
Ex.PW-6/A, that Sharda Jain misled the family members of the deceased when they made enquiries
from her about the whereabouts of the deceased have not been controverted by the defence; and (vi)
the fact that Sharda Jain tried to commit suicide on an earlier occasion indicates that she had close
relations with the deceased.
116. As regards conclusion (iv), learned Trial Court held that (i) a cumulative reading of the call
record Ex.PW-62/A of the mobile number of Sharda Jain and the Cell ID Chart Ex.PW- 65/A which
shows the locations of various towers installed by the cellular company at Delhi and NCR establishes
that the mobile phone of Sharda Jain was present at Ghaziabad on 24.08.2002 inasmuch as
incoming/outgoing calls were received/made on/from the mobile phone of Sharda Jain on the said
day; and (ii) if the claim of Sharda Jain that she did not visit Ghaziabad on 24.08.2002 was correct,
it was incumbent upon her to explain as to how the calls made/received to/from her mobile phone
came to be routed through the towers installed at Ghaziabad and she failed to do so.

117. As regards conclusion (v), 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 regards conclusion (vi), the learned Trial Court held that (i) a cumulative reading of
testimony of Shanti PW-10 and Om Parkash Chauhan PW-11, establishes that Sharda Jain came to
the house of Om Parkash Chauhan in the dead hour of night on 24.08.2002 particularly when the
testimony of Shanti was not controverted by the defence; (ii) the fact that Sharda Jain went at such a
late hour to the house of Om Parkash Chauhan shows that she wanted to tell him that he should not
disclose the fact that the deceased was present with them in the morning to anyone; and (iii) if the
said visit of Sharda Jain was not in connection with the present incident then it was incumbent upon
her to explain as to what was the urgency for her to go to the house of Om Parkash Chauhan in the
dead hour of the night.
119. In coming to conclusion (vii), the learned Trial Court brushed aside the submission advanced by
the defence that Subash was a planted witness evident from the fact that as he surfaced nearly three
months after the recovery of the body of the deceased, holding that (i) the fact that Subash could
shed some light on the disposal of the body of the deceased came to the knowledge of the
Investigating Officer only after the arrest of Roshan Singh on 15.11.02 i.e. nearly 2 ½ months after
the recovery of the body of the deceased; (ii) it cannot be expected that Subash, who is a villager,
would have come forward to apprise the police with the facts in his knowledge particularly when the
matter was a high-profile one; (iii) had Subash been a planted witness he would claimed to have
seen the body of the deceased with his own eyes; and (iv) Subash had no reason to falsely implicate
the three police officials.
120. Having drawn the afore-noted 7 conclusions, the learned Trial Court proceeded to deal with the
case against each of the accused person. Save and except accused Sripal Singh Raghav, Rakesh
Kumar and Satender Kumar, the learned Trial Court convicted the other accused of all the charges
framed against them. Holding that the prosecution has not been able to establish that accused Sripal
Singh Raghav, Rakesh Kumar and Satender Kumar entered into a criminal conspiracy with the
other accused persons to cause disappearance of the evidence of murder of the deceased, the learned
Trial Court acquitted them of the charge framed against them for having committed the offence
punishable under Section 120-B IPC. However, the learned Trial Court convicted the said three
police officials under Section 201 IPC for causing disappearance of the evidence of the murder of the
deceased.
121. The circumstances used by the learned Trial Court for convicting accused "Sharda Jain" are that
(i) Sharda Jain pointed out the place of the murder of the deceased; (ii) the deceased was last seen
alive in the company of Sharda Jain and that the time gap between the last seen and time of the
death of the deceased is so small 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 visiting the house of her driver in the late hours of the night on 24.08.2002 is
suspicious and (viii) Sharda Jain had a motive to kill the deceased.
122. The circumstances used by the learned Trial Court for convicting accused "Raj Kumar" are that
(i) Raj Kumar along with two other persons visited the house of Sharda Jain on two occasions just
few days prior to 24.08.2002; (ii) the place of residence of Raj Kumar was in the vicinity of the place
of murder of the deceased; (iii) Raj Kumar did not controvert the factum of his acquaintance with
accused Roshan Singh and Rajinder Singh; (iv) sudden arrival of Raj Kumar at the house of Sharda
Jain on the day of arrest of Sharda Jain; (v) Raj Kumar pointed out the place of the murder of the
deceased (vi) wrist watch of the deceased was recovered at the instance of Raj Kumar and (vii) the
disclosure statement of Raj Kumar provided leads to the police.
123. The circumstances used by the learned Trial Court for convicting accused "Rajinder Singh" are
that (i) the deceased was last seen alive in the company of Rajinder Singh 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; (ii) no plausible
explanation was given by Rajinder Singh as to how and when the deceased parted company with
him on 24.08.2002; (iii) Rajinder Singh was associated with Roshan Singh as he has not
controverted the fact that he used to drive the car of Roshan Singh on a temporary basis; (iv) a false
claim was made by Rajinder Singh that he never visited the house of Sharda Jain; (v) refusal of
Rajinder Singh to participate in the TIP proceedings and that the reason given by him for said
refusal was not plausible.
124. The circumstances used by the learned Trial Court for convicting accused "Roshan Singh" are
that (i) Roshan Singh was absconding from his house after 24.08.2002; (ii) testimony of Subash
PW-38, establishes that Roshan Singh played a role in disposing of the body of the deceased; (iii)
Roshan Singh was closely associated with other accused persons namely Rajinder Singh,
Pushpender and Nirvikar; (iv) recovery of two country made pistols and the gold ring of the
deceased at the instance of Roshan Singh; (v) Roshan Singh was arrested from Hoshangabad, M.P.
and he failed to give any reason for his presence at M.P.; (vi) Roshan Singh failed to give any reason
for his false implication in the present case;
(vii) Roshan Singh pointed out the place of murder and disposal of the body of the deceased and
(viii) the disclosure statement of Raj Kumar provided leads to the police.
125. The circumstances used by the learned Trial Court for convicting accused "Pushpender and
Nirvikar" are (i) recovery of I-cards of the deceased at the instance of Pushpender and Nirvikar; (ii)
Pushpender and Nirvikar were in need of a job 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
present case and (iv) they pointed out the places where the body of the deceased was found and
disposed.
127. Having convicted the accused persons, vide order dated 22.12.2006 the learned Trial Court
proceeded to sentence them. For the offence punishable under Section 302 read with Section 120-B
IPC accused Sharda Jain, Raj Kumar, Roshan Singh, Rajinder Singh, Pushpender, Nirvikar hav been
sentenced to undergo imprisonment for life and to pay a fine in sum of Rs10,000/- each, in default
to undergo SI for six months. For the offence punishable under Section 364 read with Section 120-B
IPC accused Sharda Jain, Raj Kumar, Roshan Singh, Rajinder Singh, Pushpender, Nirvikar have
been sentenced to undergo RI for seven years and to pay a fine in sum of Rs.5,000/- each, in default
to undergo SI for three months. For the offence punishable under Section 120-B IPC for abducting
and murdering the deceased in pursuance of a conspiracy accused Sharda Jain, Raj Kumar, Roshan
Singh, Rajinder Singh, Pushpender, Nirvikar have been sentenced to undergo imprisonment for life
and to pay a fine in sum of Rs10,000/- each, in default to undergo SI for six months. For the offence
punishable under Section 25, Arms Act, 1959 accused Roshan Singh has been sentenced to undergo
RI for three years and to pay a fine in sum of Rs5,000/-, in default to undergo SI for three months.
For the offence punishable under Section 27, Arms Act, 1959 accused Pushpender and Nirvikar have
been sentenced to undergo RI for three years and to pay a fine in sum of Rs5,000/- each, in default
to undergo SI for three months. For the offence punishable under Section 120-B IPC for causing
disappearance of the evidence in pursuance of a conspiracy accused Sharda Jain, Raj Kumar and
Roshan Singh have been sentenced to undergo RI for four years and to pay a fine in sum of
Rs5,000/- each, in default to undergo SI for three months. For the offence punishable under Section
201 read with Section 34 IPC accused Sripal Singh Raghav, Rakesh Kumar and Satender Kumar
have been sentenced to undergo RI for three years and to pay a fine in sum of Rs5,000/- each, in
default to undergo SI for three months. All the sentences were directed to run concurrently.
LAW OF CONSPIRACY
128. As conspiracy is the primary charge against the accused, we first advert to the law of conspiracy
- its definition, essential features and proof.
129. Section 120-A defines „criminal conspiracy as under:-
"Definition of criminal conspiracy - When two or more person agree to do, or cause to
be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount

to a criminal conspiracy unless some act besides the 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 the accomplishment of the object by the means embodied in the
agreement, or by any effectual means. Thus, the gist of offence of criminal conspiracy is an
agreement to break the law.
131. Sections 120-A and 120-B were brought on the statute book by way of Criminal Law
Amendment Act, 1913. Earlier to the introduction of Sections 120A and 120B, conspiracy per se was
not an offence under the Indian Penal Code except in respect of the offence mentioned in Section
121A. In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new
provisions (120-A & B) were "designed to assimilate the provisions of the Indian Penal Code to those
of the English Law...." Thus, Sections 120A & 120B made conspiracy a substantive offence and
rendered the mere agreement to commit an offence punishable.
132. Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason
Section 10 of the Indian Evidence Act was enacted. It reads as under:-
"10. Things said or done by conspirator in reference to common design:-Where there

is reasonable ground to believe that two or more persons have conspired together to
commit an offence or an actionable wrong, anything said, done or written by any one
of such persons in reference to their common intention, after the time when such
intention was first entertained by any one of them, is a relevant fact as against each of
the persons believed to so conspiring, as well for the purpose of proving the existence
of the conspiracy as for the purpose of showing that any such person was a party to
it."
133. Thus, the substantive section of the IPC i.e. Section 120-A adumbrated thereon Section 10 of
the Indian Evidence Act give us the legislative provisions applicable to conspiracy and its proof.
134. After survey of the case law on the point, following legal principles pertaining to the law of
conspiracy can be conveniently culled out:-
A When two or more persons agree to commit a crime of conspiracy, then regardless of making or
considering any plans for its commission, and despite the fact that no step is taken by any such
person to carry out their common purpose, a crime is committed by each and every one who joins in

the agreement. There has thus to be two conspirators and there may be more than that. To prove the
charge of conspiracy it is not necessary that intended crime was committed or not. If committed it
may further help prosecution to prove the charge of conspiracy. (See the decision of Supreme Court
reported as State v Nalini (1999) 5 SCC 253) B The very agreement, concert or league is the
ingredient of the offence. It is not necessary that all the conspirators must know each and every
detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. It is
not necessary 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 another,
amongst the conspirators. In achieving the goal several offences may be committed by some of the
conspirators even unknown to the others. The only relevant factor is that all means adopted and
illegal acts done must be and purported to be in furtherance of the object of the conspiracy even
though there may be sometimes misfire or overshooting by some of the conspirators. Even if some
steps are resorted to by one or two of the conspirators without the knowledge of the others it will not
affect the culpability of those others when they are associated with the object of the conspiracy. But
then there has to be present mutual interest. Persons may be members of single conspiracy even
though each is ignorant of the identity of many others who may have diverse role to play. It is not a
part of the crime of conspiracy that all the conspirators need to agree to play the same or an active
role. (See the decisions of Supreme Court reported as Yash Pal Mittal v State of Punjab AIR 1977 SC
2433 and State v Nalini (1999) 5 SCC 253) C It is the unlawful agreement and not its
accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal
conspiracy is complete even though there is no agreement as to the means by which the purpose is
to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy.
D The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be
inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the
conspirators. The agreement need not be entered into by all the parties to it at the same time, but
may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy
is generally hatched in secrecy, it would quite often happen that there is no evidence of any express
agreement between the conspirators to do or cause to be done the illegal act. For an offence under
Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to
do or cause to be done the illegal act; the agreement may be proved by necessary implication. The
offence can be only proved largely from the inference drawn from acts or illegal omission committed
by the conspirators in pursuance of a common design. The prosecution will also more often rely
upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is
necessary to prove the actual words of communication. The evidence as to transmission of thoughts
sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and
subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy.
(See the decisions of Supreme Court reported as Shivnarayan Laxminarayan Joshi 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 would
be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy
designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to
the agreement are agreed to be finalized or done, attempted or even frustrated and vice versa. F
Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down
therein are satisfied, the acts done by one are admissible against the co- conspirators. In short, the
section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable
ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said
condition is fulfilled, anything said, done or written by any one of them in reference to their
common intention will be evidence against the other; (3) anything said, done or written by him
should have been said, done or written by him after the intention was formed by any one of them;
(4) it would also be relevant for the said purpose against another who entered the conspiracy
whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can
only be used against a co-conspirator and not in his favour. (See the decision of Supreme Court
reported as Sardar Sardul Singh v State of Maharashtra AIR 1957 SC 747.) DISCUSSION ON
CIRCUMSTANTIAL EVIDENCE
135. As discussed in the foregoing paras, more often than not, the prosecution would adduce
circumstantial evidence to prove the charge of conspiracy. The question which arises is that what
should be the nature of circumstantial evidence in a case of conspiracy to bring home the guilt of the
accused persons.
136. The well known rule governing circumstantial evidence that :- (a) the circumstances from
which the inference of guilt of the accused is drawn have to be proved beyond reasonable doubt and
have to be shown to be closely connected with the principal fact sought to be inferred from those
circumstances; (b) the circumstances are of a determinative tendency unerringly pointing towards
the guilt of the accused; and (c) the circumstances, taken collectively, are incapable of explanation
on any reasonable hypothesis save that of the guilt sought to be proved against him, is fully
applicable in cases of proof of conspiracy. The courts have added two riders to aforesaid principle;
namely, (i) there should be no missing links but it is not that every one of the links must appear on
the surface of the evidence, since some of these links can only be inferred from the proved facts and
(ii) it cannot be said that the prosecution must meet any and every hypothesis put forward by the
accused however far- fetched 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 nation is facing great stress and strain because of
misguided militants and co-operation to the militancy, which has affected the social
security, peace and stability. It is common knowledge that such terrorist activities are
carried out with utmost secrecy. Many facts pertaining to such activities remain in
personal knowledge of the person concerned. Hence, in case of conspiracy and
particularly such activities, better evidence than acts and statements including that of
co-conspirators in pursuance of the conspiracy is hardly available............. For
assessing evidence in such cases, this Court in Collector of Customs, Madras & Others
v. D. Bhoormall AIR 1974 SC 859 dealing with smuggling activities and the penalty
proceedings under Section 167 of the Sea Customs Act, 1878 observed that many facts
relating to illicit business remain in the special or peculiar knowledge of the person
concerned in it and held thus:
"30. .. that the prosecution or the Department is not required to prove its case with
mathematical precision to a demonstrable degree; for, in all human affairs absolute
certainty is a myth, and as Prof. Brett felicitously puts it -- "all exactness is a fake". E1
Dorado of absolute proof being unattainable, the law accepts for it, probability as a
working substitute in this work-a-day world. The law does not require the
prosecution to prove the impossible. All that it requires is the establishment of such a
degree of probability that a prudent man may, on its basis, believe in the existence of
the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing
more than a prudent man's estimate as to the probabilities of the case......" (Emphasis
supplied)
139. The Evidence Act does not insist upon absolute proof for the simple reason that
perfect proof in this imperfect world is seldom to be found. That is why under Section
3 of the Evidence Act, a fact is said to be 'proved' when, after considering the matters
before it, the Court either believes it to exist, or considers its existence so probable
that a prudent man ought, under the circumstances of the particular case, to act upon
the supposition that it exists. This definition of 'proved' does not draw any distinction
between circumstantial and other evidence. The use of expression „determinative
tendency in the afore-noted rule also seconds the view that the prosecution is not
required to adduce such evidence which absolutely proves the guilt of an accused
person. Thus, circumstantial evidence in order to furnish a basis for conviction

requires a high degree of probability, that is, so sufficiently 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 accused is entitled
to the benefit of doubt. There is no doubt or dispute about this position. But in
applying this principle, it is necessary to distinguish between facts which may be
called primary or basic on the one hand and inference of facts to be drawn from them
on the other. In regard to the proof of basic or primary facts, the Court has to judge
the evidence in the ordinary way, and in the appreciation of evidence in respect of the
proof of these basic or primary facts there is no scope for the application of the
doctrine of benefit of doubt. The court considers the evidence and decides whether
that evidence proves a particular fact or not. When it is held that a certain fact is
proved, the question arises whether that fact leads to the inference of guilt of the
accused person or not, and in dealing with this aspect of the problem the doctrine of
benefit of doubt would apply and an inference of guilt can be drawn only if the proved
fact is wholly inconsistent with the innocence of the accused and is consistent only
with his guilt."
141. Place of murder of the deceased: - As already noted herein above, the first circumstance used by
the learned Trial Judge to infer the guilt of accused Sharda Jain is her conduct of pointing out the
place of murder of the deceased.
142. A perusal of the impugned judgment goes to show that the learned Trial Judge has proceeded
on the assumption that the spot pointed out by the accused vide pointing out memo Ex.PW-44/E is
the place of murder of the deceased. No endeavor has been made out by the learned Trial Judge to
determine whether the spot in question is the place of murder of the deceased. The approach of
learned Trial Judge in assuming that the spot in question is the place of murder of the deceased is
clearly erroneous. It was incumbent upon the learned Trial Judge to first determine from the facts
emerging on record and the evidence led by the prosecution that whether the spot in question is the
place of murder of the deceased. The learned Trial Judge has also not analyzed the evidence led by
the prosecution to prove the pointing out of alleged place of murder of the deceased by accused
Sharda Jain.

143. That being the case, we first proceed to undertake an inquiry whether the evidence led by the
prosecution to prove the pointing out of alleged place of murder of the deceased by accused Sharda
Jain is creditworthy and that whether the spot pointed out by accused Sharda Jain (herein after
referred to as the "Spot A") is the place of murder of the deceased.
144. To establish the pointing out of spot A by accused Sharda Jain, the prosecution has examined
the 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 pointing out of spot A by accused Sharda Jain and Raj Kumar. On the contrary, he deposed that
he does not remember that whether accused Sharda Jain and Raj Kumar took part in the
investigation conducted at spot A on 28.08.2002. There is also a glaring discrepancy in the
testimony of Mahender Pal Gupta inasmuch as he deposed that accused Rajinder and Roshan Singh
were also present at spot A on 28.08.2002; whereas as per the case of the prosecution the said
accused persons were arrested by the police much after 28.08.2002. The evidence of the witness is
ipsi-dixit on the point of the presence of accused Rajinder at spot A on 28.08.2002 inasmuch as the
witness deposed that accused Raju was also present at spot A on 28.08.2002 and has referred to
accused Rajinder as Raju in his examination-in- chief whereas he has referred accused Raj Kumar as
Raju in his cross-examination. The evidence of the witness is also ipsi- dixit on the point of presence
of accused Roshan Singh inasmuch as the witness deposed that accused Roshan Singh was present
at spot A on 28.08.2002 in his examination-in- chief whereas he denied the presence of accused
Roshan Singh at spot A on 28.08.2002 in his cross-examination. In such circumstances, the claim of
the prosecution that Mahender Pal Gupta was present at spot A on 28.08.2002 and witnessed the
pointing out of spot A by accused Sharda Jain and Raj Kumar is not tenable.
147. The question which thus arises for consideration is, what is the effect of doubtful testimony of
Mahender Pal Gupta on the credibility of the other evidence led by the prosecution to establish that
the pointing out of spot A by accused Sharda Jain and Raj Kumar.
148. On this aspect, suffice would it be to note the following observations of Supreme Court in the
decision reported as State of UP V Anil Singh AIR 1988 SC 1998:-
"With regard to falsehood stated or embellishments added by the prosecution

witnesses, it is well to remember that there is a tendency amongst witnesses in our

country to back up a good case by false or exaggerated version. The Privy Council had
an occasion to observe this. In Bankim Chander v. Matangini 24 C.W.N. 626 PC, the
Privy Council had this to say (at 628):
That in Indian litigation it is not safe to assume that a case must be false if some of
the evidence in support of it appears to be doubtful or is clearly unture, since there is,
on some occasions, a tendency amongst litigants to back up a good case by false or
exaggerated evidence.
18. In Abdul Gani v. State of Madhya Pradesh AIR 1954 SC 31 Mahajan, J. speaking
for this Court deprecated the tendency of courts 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 are public duties which the
Judge has to perform."
149. In view of the aforesaid dictum, it cannot be said that the evidence of Mahender Pal Gupta has
created a doubt on the credibility of the evidence of the other witnesses of the prosecution
pertaining to pointing out of spot A at the instance of accused Sharda Jain and Raj Kumar. Their
evidence, thus, needs to be seen.
150. 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 have deposed that spot A was
pointed out by accused Sharda Jain and Raj Kumar on 28.08.2002. The aforesaid witnesses have
withstood the test of cross-examination. Spot A was not known to police before 28.08.2002 which
implies that indeed spot A was brought to the knowledge of police either by accused Sharda Jain or
by accused Raj Kumar or simultaneously by both of them. The evidence on record shows that spot A
was in the knowledge of Sharda Jain before 28.08.2002, which fact conclusively establishes that
spot A was pointed out by accused Sharda Jain to the police. (The evidence pertaining to knowledge
of Sharda Jain of spot A before 28.08.2002 shall be discussed by us shortly herein after).
151. Having held that spot A was pointed out by accused Sharda Jain to the police, we now proceed
to determine that whether spot A was the place of murder of the deceased.

152. It is an undisputed fact that the body of the deceased was found in a canal. It is further
undisputed that spot A is near the canal where the body of the deceased was found.
153. It is also not in dispute that the cause of death of the deceased was not drowning. The
post-mortem Ex.PW-21/A of the deceased records that death of the deceased was caused due to a
firearm injury, which recording is not challenged by the defence. It thus follows that the deceased
was first murdered and thereafter his body was thrown into the canal. It further follows that body of
the deceased was thrown at or ahead of the spot where it was found.
154. Another undisputed fact is that spot A is upstream of the spot where body of the deceased was
recovered.
155. Having noted the undisputed facts emerging from the evidence on record, we proceed to deal
with the facts sought to be established by the prosecution to prove that spot A is the place of murder
of the deceased.
156. The first fact sought to be established by the prosecution is that human blood was found at spot
A. To establish the said fact, the prosecution placed reliance upon the testimonies of the police
officials who participated in the 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 necessary to note
the movement of the soil in question, to and from the Malkhana.
161. A perusal of entry no.1560 recorded in the Malkhana Register Ex.PW-43/A shows that three
pullandas containing blood stained soil and three pullandas containing earth control lifted from
spot A were deposited at the Malkhana on 28.08.2002. A further perusal thereof shows that HC
Dinesh Kumar PW-43, Malkhana Moharar, marked the three pullandas containing blood stained
soil as 1, 1A and 1B respectively and pullandas containing earth control as 2, 2A and 2B respectively.

162. A further perusal of entry no.1560 shows that an endorsement is made therein which records
that SI Sukaram Pal PW-39, collected the aforesaid pullandas, jaw, piece of flesh, viscera and
contents of the stomach of the deceased from HC Dinesh Kumar on 05.11.2002 for the purposes of
depositing the same at the FSL.
163. It is significant to note here that HC Dinesh Kumar PW-43, deposed that on 05.11.2002, SI
Sukaram Pal collected the aforesaid materials and other case property from him and that the same
was not tampered with till the time it was handed over to SI Sukaram Pal. SI Sukaram Pal PW-39,
deposed that he collected the aforesaid materials and other case property from Malkhana Moharar
on 05.11.2002 and deposited the same at the FSL on same day itself. He further deposed that there
was no tampering with the case property till the time the same was deposited by him at the FSL. (It
may be noted here that the said witnesses were not cross- examined on the said point. The
testimony of the witnesses pertaining to the tampering of the case property was not controverted by
the defence inasmuch as no contrary suggestion was given to them in their cross-examination).
164. The FSL report Ex.PW-41/A, which contains the description of the articles deposited at the FSL
on 05.11.2002, records that exhibits 1 and 1A containing blood stained soil and exhibits 2, 2A and 2B
containing earth control were deposited at the FSL. The question which stares in the face is that
what happened to exhibit 1B.
165. The submission advanced by the learned senior counsel was that the fact that exhibit 1B did not
reach the FSL strongly suggests that the exhibits containing soil lifted from spot A were tampered
with and therefore no reliance could be placed upon the FSL reports Ex.PW-41/A and Ex.PW-41/B.
166. To solve the mystery surrounding the disappearance of exhibit 1B, it is most necessary to note
the endorsement dated 28.11.2002 made in the entry No.1560 that on 28.11.2002 SI Anil Kumar
Chauhan PW-44, 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 opportunity to the witness to explain the non-mention of exhibit 1B in the FSL
report Ex.PW- 41/A, no adverse inference can be drawn against the prosecution.

170. In taking the said view, we are supported by a decision of Supreme Court reported as Rahim
Khan v Khurshid Ahmad AIR 1975 SC 290 wherein it was observed as under:-
".......The entry with which we are concerned is 5072A and this is not unusual when
by mistake a clerk has written identical figures for two entries. Moreover there is no
cross-examination on this point and in the absence of cross-examination giving an
opportunity to the witness to explain the circumstances from which an inference is
sought to be drawn, no such inference--particularly of forgery and publication of
documents--can be permitted to be raised." (Emphasis supplied)
171. In the decision reported as State of UP V Anil Singh 1988 (Supp) SCC 686, the eye-witness
wrote a report giving fairly all the particulars of the occurrence and lodged the same with the report
within few minutes of the occurrence. An argument was raised by the defence that it was impossible
for the witness to prepare such an exhaustive report and lodge the same with the police so soon after
the occurrence. The said argument was repelled by Supreme Court on the ground that the witness in
question was not specifically cross- examined on said point.
172. In the decision reported as Sunil Kumar v State of Rajasthan (2005) 9 SCC 298 great stress was
laid by the defence on the facts that there was delayed dispatch of the FIR to the Ilaqa Magistrate
and delayed recording of the statements of the witnesses under Section 161 CrPC. One of the reasons
which weighed with Supreme Court for not drawing an adverse inference against the prosecution
was that no question was put to the Investigating Officer regarding the aforesaid delay.
173. The matter can also be looked from another angle.
174. As already pointed in foregoing paras, the evidence of HC Dinesh Kumar PW-43 and SI
Sukaram Pal PW-39, that there was no tampering with the case property including the soil in
question till the time the same remained in their possession has not been controverted by the
defence.
175. It is settled law that where a witness is not cross- examined on any relevant aspect, the
correctness of the statement made by a witness cannot be disputed. (See the decisions of Supreme
Court reported as State of U.P. v. Nahar Singh AIR 1988 SC 1328 and 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 stuck on the right rear tyre of
the car of Sharda Jain and that the said tyre was seized vide memo Ex.PW-44/C1. HC Sunita PW-31,
SI Ram Kumar PW-32, SI Anil Kumar Chauhan PW-44 and Inspector V.S.Meena PW-62, deposed
that on 28.08.2002 the earth control was lifted from spot A and that the same was seized vide memo
Ex.PW-44/G. The aforesaid testimony of the witnesses could not be shaken in the cross-
examination.
179. As already noted in foregoing paras, the FSL report Ex.PW-66/A records that the mud found
stuck on the tyre of Sharda Jain and the soil lifted from spot A possessed similar physical
characteristics.
180. At this stage, a submission advanced by learned senior counsel for Sharda Jain predicated upon
Section 45, Indian Evidence Act, 1872 needs consideration.
181. Learned senior counsel contended 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.
After referring to the deposition of Dr.Swaroop Vedanand PW-66 that „It is correct that I have not
studied any course in Geology. I have not studied any degree of diploma in structural geology or
physical geology. I am not aware about any course of physical geology , learned senior counsel
contended that he cannot be taken as an „expert within the meaning of Section 45, Indian Evidence
Act, 1872. In support of the said submission, reliance was placed upon the decisions of Supreme
Court reported as State of HP v Jai Lal (1999) 7 SCC 280, S.Gopal Reddy v State of AP (1996) 4 SCC
596 and Magan Bihari Lal v State of Punjab (1977) 2 SCC 210.
182. Section 45, Indian Evidence Act 1872 reads as under:-
"45. Opinion of experts - When the Court has to form an opinion upon a point of
foreign law or of science or art, or as to identity of handwriting or finger impressions,
the opinion upon that point of persons specially skilled in such foreign law, science or
art, or in questions as to identity of handwriting or finger impressions, are relevant
facts.
Such persons are called experts."
183. Section 45 permits only the opinion of an expert to be cited in evidence. This requires
determination of the question as to who is an expert. The only guidance in the section is that he
should be a person "specially skilled" on the matter. Thus, the only definition of an expert available
in Evidence Act is that he is a person specially skilled in the subject on which he testifies. The

section does not refer to any particular attainment, standard of study or experience, which would
qualify a person to give evidence as an expert. The next question is what is the criteria for
determining whether a witness is "specially skilled" or not. The answer to this question is to be
found in decision of Supreme Court in Jai Lal s case (supra) wherein it was held that in order to
bring the evidence of a witness as that of an expert it has to be shown that he has made a special
study of the subject or acquired a special experience therein or in other words that he is skilled and
has adequate knowledge of the 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 highly qualified and experienced physicist evident from the
fact that he had pursued M.Sc (Physics), M.Phil and Ph.D and was working in the FSL since the year
1993. Condensed matter physics or solid-state physics is a branch of physics that deals with the
physical properties of solid materials. Geology, on the other hand, is a scientific study of the origin,
history and structure of the earth. Considering that Dr.Swaroop Vedanand is a qualified and
experienced physicist, it can reasonably be expected that he must have been well versed with the
condensed matter physics and having required knowledge on the subject of physical properties of
the soil. It is also relevant to note that nothing could be elicited from the cross-examination of
Dr.Swaroop Vedanand which could cast a doubt on the conclusions arrived at by him in his report.
186. This takes us to the decisions relied upon by the learned counsel for Sharda Jain.
187. The decision of Supreme Court in Jai Lal s case (supra) is clearly distinguishable from the
present case. In said case, a witness was examined by the prosecution as an expert on the point of
assessment of optimum productive capacity of the apple orchards. The court noted that the witness
in question had not received any training with respect to assessment of apple crop and that it was
the first time that the witness assessed the productivity of an apple orchard. It was further noted by
the court that there were glaring omissions and inadequacies in the report prepared by him. In that
context, it was held that the witness in question cannot be considered as an expert on the subject of
assessment of productive capacity of apple orchards.
188. The decisions of Supreme Court in S.Gopal Reddy and Magan Bihari Lal s cases (supra) has no
application to the present case. In said cases, Supreme Court was dealing with the evidence of a
handwriting expert. It was held by the court that evidence of a handwriting expert is a weak type of
evidence and that it is unsafe to treat opinion of a handwriting expert as sufficient basis for
conviction, but that it may be relied upon when supported by other items of internal and external
evidence.
189. In view of the above discussion, we find no merit in the submission of learned senior counsel
that Dr.Swaroop Vedanand cannot be considered as an „expert on the subject of determination of
physical properties of the soil as he had not studied any course in geology.

190. Having repelled the argument advanced by the learned senior counsel, we hold that the
prosecution has been able to establish that car of Sharda Jain was driven to a spot where the soil
found therein was having similar physical characteristics as soil found at spot A.
191. The next fact sought to be established by the prosecution is that Sharda Jain was present in the
vicinity of spot A on 24.08.2002 i.e. the day of the murder of the deceased. To establish the said fact,
reliance was placed by the prosecution upon the call records Ex.PW-34/A and Ex.PW- 62/A and the
testimony of Om Parkash Chauhan PW-11, the driver of Sharda Jain.
192. With respect to the call records Ex.PW-34/A and Ex.PW-62/A, it was strenuously argued by
learned senior counsel for 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 of the
court;"
194. By way of amendment to the Evidence Act, 1872, incorporated by Act. No. 21 of 2000 following
was inserted:
"The expression "Certifying Authority", "digital signature", "Digital Signature

Certificate", "electronic form", "electronic records", "information", "secure electronic
records", "secure digital signature" and "subscriber" shall have the meanings
respectively assigned to them in the Information Technology Act, 2000."
195. Section 2 (c) of the Information Technology Act, 2000 reads:
"electronic record" means data, record or data generated, image or sound stored,
received or sent in an electronic form or micro film or computer generated micro
record."
196. Section 65A and 65B of the Evidence Act, 1872, inserted by Act No. 21 of 2000 read as under:-
"65A. Special provisions as to evidence relating to electronic record.
The contents of electronic records may be proved in accordance with the provisions
of Section 65B."
"65B. Admissibility of electronic records.

(1) notwithstanding anything contained in this Act, any information contained in an

electronic record which is printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer (hereinafter referred to as the computer
output) shall be deemed to be also a document, if the conditions mentioned in this
section are satisfied in relation to the information and computer in question and shall
be admissible in any proceedings, without further proof or production of the original,
as evidence or any contents of the original or of any fact stated therein of which direct
evidence would be admissible.
(2) the conditions referred to in Sub-section (1) in respect of a computer output shall
be following, namely :-
(a) the computer output containing the information was produced by the computer
during the period over which the computer was used regularly to store or process
information for the purposes of any activities regularly carried on over that period by
the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record
or of the kind from which the information so contained is derived was regularly fed
into the computer in the ordinary course of said activities;
[c] throughout the material part of the said period, the computer was operating
properly or, if not, then in respect of any period in which it was not operating
properly or was out of operation during that part of the period, was not such as to
affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the
purposes of any activities regular carried out on over that period as mentioned in
Clause (a) of Sub-section (2) was regularly performed by computers, whether -
(a) by a combination of computers operating over that period; or
(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 this section as constituting a single computer; and

references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of

this section, a certificate doing any of the following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the
manner which it was produced;
(b) giving such particulars of any device involved in the production of that electronic
record as may be appropriate for the purpose of showing that the electronic record
was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in Sub-section
(2) relate, and purporting to be signed by a person occupying a reasonable official
position in relation to the operation of the relevant device or the management of the
relevant activities (whichever is appropriate) shall be evidence of any matter stated in
the certificate; and for the purposes of this sub-section it shall be sufficient for a
matter to be state d to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in

any appropriate form or whether it is so supplied directly or (with or without human
intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is

supplied with a view to its being stored or processed for the purposes of those
activities by a computer operated otherwise than in the course of those activities, that
information, if duly supplied to that computer shall be taken to be supplied to it in
the course of those activities;
(c) to a computer output shall be taken to have been produced by a computer whether
it was produced by it directly or (with or without human intervention) by means of
any appropriate equipment.
197. Thus, computer generated electronic records is evidence, admissible at a trial if proved in the
manner specified by Section 65B of the Evidence Act.
198. Sub-section (1) of Section 65B makes admissible as a document, paper print-out of electronic
records stored in optical or magnetic media produced by a computer, subject to the fulfillment of the
conditions specified in Sub-section (2) of Section 65B. Following are the conditions specified by
Sub- section (2):

a) The computer from which the record is generated was regularly used to store or process
information in respect of activity regularly carried on by a person having lawful control over the
period, and relates to the period over which the computer was regularly used;
b) Information was fed in the computer in the ordinary course of the activities of the person having
lawful control over the computer;
c) The computer was operating properly, and if not, was not such as to affect the electronic record or
its accuracy;
d) Information reproduced is such as is fed into computer in the ordinary course of activity.
199. 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 means of
appropriate equipment.
201. The normal rule of leading documentary evidence is the production and proof of the original
document itself. Secondary evidence of the contents of a document can also be led under Section 65
of the Evidence Act. Under Sub-clause "d" of Section 65, secondary evidence of the contents of a
document can be led when the original is of such a nature as not to be easily movable. Computerised
operating systems and support systems in industry cannot be moved to the court. The information is
stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has
to be taken in the form of a print out. Sub-section (1) of Section 65B makes admissible without
further proof, in evidence, print out of a electronic record contained on a magnetic media subject to
the satisfaction of the conditions mentioned in the section. The conditions are mentioned in
Sub-section (2). Thus compliance with Sub-section (1) and (2) of Section 65B is enough to make
admissible and prove electronic records.
202. Sub-section (4) of Section 65B provides for an alternative method to prove electronic record.
Sub- section (4) allows the proof of the conditions set out in Sub-section (2) by means of a certificate
issued by the person described in Sub- section 4 and certifying contents in the manner set out in the
sub-section. The sub-section makes admissible an electronic record when certified that the contents
of a computer printout are generated by a computer satisfying the conditions of Sub- section 1, the
certificate being signed by the person described therein.
203. Additionally, irrespective of compliance of the requirements of Section 65B, there is no bar to
adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 &
65.

204. Therefore, the call records Ex.PW-34/A and Ex.PW- 62/ can be proved by adducing secondary
evidence in terms of Section 63 of Evidence Act or by complying conditions specified in sub-section
(2) or sub-section (4) of section 65B of Evidence Act.
205. In the instant case, the moot question is whether the call records have been proved in terms of
Section 63 or Section 65B(2) or Section 65B(4).
206. Inspector V.S.Meena PW-62, has merely deposed that on 25.08.2002 he obtained the print out
Ex.PW-62/A of the call records of mobile number 9811508688 and that the said number is
registered in the name of Sharda Jain.
207. As already noted in foregoing paras, Gulshan Arora PW-34, deposed that he has brought the
record pertaining to mobile number 9811508688. As per the record, Ex.PW-34/A is the call record
of the said mobile number pertaining to the period 24.08.2002 to 26.08.2002.
208. In the instant case, the call records Ex.PW-34/A and Ex.PW-62/A could not have been proved
by any of the modes prescribed under Section 63 of Evidence Act. Admittedly, no certificate in terms
of Section 65B(4) has been issued in the present case. The testimonies of Inspector V.S.Meena and
Gulshan Arora also do not fulfil the 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 Ghaziabad. (It may be noted here that Ghaziabad is in the vicinity of spot A)
212. To assail the aforesaid testimony of Om Parkash Chauhan, a submission was advanced by the
learned counsel for Sharda Jain that it is not mentioned in the statement Ex.PW-11/DA of Om
Parkash recorded under Section 161 Cr.P.C. that Sharda Jain instructed him to go towards
Ghaziabad on 24.08.2002 and that the said omission casts a serious doubt on the truthfulness of the
said testimony.
213. To deal with the said submission, the decision of Supreme Court reported as 2000 (4) SCC 484
Jaswant Singh v State of Haryana needs to be noted. In the said case, the evidence of an eye-witness
was assailed on the ground that the witness did not state the details of the injuries inflicted or of the
person who caused the injuries in her statement recorded under Section 161 Cr.P.C. while the said
details were deposed to by her before the Court. Repelling the above contention, Supreme Court
observed:-

"Section 161(2) of the Code requires the person making the statements 'to answer
truly all questions relating to such case, put to him by such officer....". It would,
therefore, depend on the questions put by the police officer. It is true that a certain
statement may now be used under Section 162 to contradict such witness in the
manner provided by Section 145 of the Indian Evidence Act, 1872. Previously, the law
was as enunciated in Tehsildar Singh & Anr. v. The State of Uttar Pradesh 1959 (2)
SCR 875: as omissions, unless by necessary implication be deemed to be part of the
statement, cannot be used to contradict the statement made in the witness-box.
49. Now the Explanation to Section 162 provides that an omission to state a fact in
the statement may amount to contradiction. However, the explanation makes it clear
that the omission must be a significant one and 'otherwise relevant' having regard to
the context in which such omission occurs and whether any omission amounts to a
contradiction in the particular context shall be a question of fact.
50. Reading Section 161(2) of the Criminal Procedure Code with the Explanation to
Section 162, an omission in order to be significant must depend upon whether the
specific question, the answer to which is omitted, was asked of the witness. In this
case the Investigating Officer, PW 13 was not asked whether he had put questions to
Gurdeep Kaur asking for details of the injuries inflicted or of the persons who had
caused the injuries.
214. In the instant case, when the attention of Om Parkash Chauhan was drawn towards the said
omission, he stated that he disclosed the said fact to the police at the time when his statement was
recorded by the police. Inspector Shiv Raj Singh PW-55, the scribe of the statement Ex.PW-11/DA
was not asked by defence that whether he put question to Om Parkash Chauhan asking for details as
to what all transpired in the car of Sharda Jain on 24.08.2002.
215. In view of the dictum laid down by Supreme Court in Jaswant Singh s case (supra) 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 instructed him to go towards Ghaziabad on
24.08.2002.
217. The aforesaid testimony of Om Parkash Chauhan establishes that the car of Sharda Jain was to
be driven towards Ghaziabad on 24.08.2002.
218. Did Sharda Jain go to, or near Ghaziabad on 24.08.2002? Before embarking on the discussion
of the evidence on said issue, we may note at the outset that village Chajjupur is at a distance of

about 22 kms from Ghaziabad and the canal in which the body of the deceased was found flows
through village Chajjupur. Thus, the relevance of Sharda Jain being somewhere in the area of
Ghaziabad assumes significance.
219. In her examination under Section 313 Cr.P.C., Sharda Jain did not disclose where she went
after the rally on 24.08.2002. Neither did she explain as to how mud having similar characteristics
as soil found at spot A was found to be stuck on her car.
220. In the decision reported as Sucha Singh v State of Punjab AIR 2001 SC 1436 Supreme Court
observed as under:-
"We pointed out that Section 106 of the Evidence Act is not intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond reasonable doubt,
but the section would apply to cases where prosecution has succeeded in proving
facts for which a reasonable inference can be drawn regarding the existence of certain
other facts, unless the accused by virtue of special knowledge regarding such facts
failed to offer any explanation which might drive the court to draw a different
inference."
221. In the instant case, Sharda Jain alone could have told the court about her movements on
24.08.2002 after going to the rally. When Sharda Jain withheld that information from the Court
there is every justification for the Court for drawing the inference that Sharda Jain did go to/around
Ghaziabad, in the light of the testimony of Om Parkash Chauhan that car of Sharda Jain was to
proceed towards Ghaziabad on 24.08.2002 and that mud found stuck on her tyre had similar
physical characterstics as soil found at spot A.
222. The necessary corollary which emerges from the above fact that Sharda Jain was present
at/around Ghazibad on 24.08.2002 is that Sharda Jain made a false claim in her examination under
Section 313 Cr.P.C. that she did not go towards Ghaziabad on 24.08.2002.
223. Another proved fact is that the deceased died on 24.08.2002 and that the deceased was last
seen alive in the company of Sharda Jain in the afternoon of 24.08.2002. (We shall be discussing
the evidence pertaining to last seen led by the prosecution shortly herein after)
224. The facts which emerge from the above discussion can be enumerated as under:-
(i) The body of the deceased was found in a canal.
(ii) Spot A is near the canal in which the body of the deceased was found downstream.
(iii) The deceased was first murdered and thereafter his body was thrown into the canal.
(iv) Spot A is upstream of the spot where the body of the deceased was recovered.
(v) Human blood was found at spot A.

(vi) Car of Sharda Jain was driven to a spot where soil had
similar physical characteristics as soil found at point A. Sharda Jain s car was obviously driven on
soft soil and she has not explained why it was so driven.
(vii) Sharda Jain was present in the vicinity of spot A on 24.08.2002.
225. With reference to our discussion in paras 137 to 139 above, it is apparent that law does not
require a 100% standard of proof before a fact can be said to be proved. A fact is proved where on
the basis of evidence before it, a reasonable mind would draw a conclusion that the fact is proved.
From the testimony of the driver of Sharda Jain we have on record the fact that Sharda Jain along
with the deceased was travelling in her car towards Ghaziabad. The deceased did not return home
and was last seen in the company of Sharda Jain in the afternoon. It can safely be presumed that the
deceased was with Sharda Jain in an area around Ghaziabad. That mud of same physical
characteristics as of spot A was found stuck in the tyre of the car of Sharda Jain establishes that
Sharda Jain s car was driven on lose soil, characteristic whereof was physically similar to the
characteristic of the soil of spot A or of a similar spot. This means that the deceased was taken either
to spot A or any other spot where the characteristic of the soil were similar to that of spot A. The said
spot had to be upstream of the spot where the dead body of the deceased was found. The spot had to
be somewhere near the canal. The fact that human blood was found at spot A is relevant under
Section 11(2) of the Evidence Act because the said fact in connection with the preceding facts noted
hereinbefore makes the existence of the fact in issue i.e. whether spot A is the spot where the
deceased was murdered, highly probable. We thus hold that keeping in view the standard of proof
required by the Evidence Act to treat a fact as proved, the prosecution has successfully proved that
the deceased was killed at spot A.
226. Section 8 of the Evidence Act makes conduct of a person a relevant fact for the proof of any fact
in issue. Evidence relating to the conduct of an accused person, which is deposed to by a police
officer is admissible as conduct under Section 8 of the Evidence Act. (See the decision of Supreme
Court reported as Prakash Chand v State AIR 1979 SC 400). Therefore, the conduct of Sharda Jain
leading the police to place of murder where the deceased was in all probability murdered is
admissible under Section 8 of Evidence Act.
227. What turns on the fact that accused Sharda Jain pointed out the place of the murder of the
deceased. Sharda Jain could have acquired knowledge that spot A is the place of murder of the
deceased only in one of the ways. Either she herself was a party to the conspiracy to murder the
deceased and thus was aware that the murder of the deceased was committed at spot A or somebody
else who was a party to the conspiracy to murder the deceased told Sharda Jain that spot A is the
place of murder of the deceased. No explanation has been offered by Sharda Jain as to how she came
to know that spot A is the place of murder of the deceased. In such circumstances, the fact Sharda
Jain pointed out the place of murder of the deceased is a strong pointer towards the guilt of Sharda
Jain.

228. Last Seen Evidence: The next three circumstances used by the learned Trial Judge to infer the
guilt of accused Sharda Jain are predicated upon the fact that the deceased was last seen alive in the
company of accused Sharda Jain.
229. It needs to seen by us that whether the evidence led by the prosecution to establish that the
deceased was last seen alive in the company of accused Sharda Jain is creditworthy or not. If yes,
what is the effect thereof?
230. To establish the fact that the deceased was last seen alive in the company of accused Sharda
Jain, the prosecution examined Sumitra Gupta PW-18, Prabhu Yadav PW-17, Om Parkash Chauhan
PW-11 and Manish Gupta PW-14.
231. As already noted in foregoing paras, the evidence of Sumitra Gupta PW-18, the wife of the
deceased, that the deceased told her that he would be going to the residence of Sharda Jain at the
time of leaving his residence in the morning of 24.08.2002 has not been controverted by the defence
and the evidence of Prabhu Yadav PW-17, the driver of Sharda Jain, that he dropped the deceased at
the residence of Sharda Jain in the morning of 24.08.2002. Likewise, the evidence of Om Parkash
Chauhan PW-11, the driver of Sharda Jain, and the recording contained in the DD entry PW-6/A
that the deceased was present with Sharda Jain in the car of Sharda Jain in the afternoon of
24.08.2002 has not been controverted by the defence.
232. From a perusal of the testimony of Manish Gupta PW-14, a son of the friend of the deceased,
contents whereof have been noted in para 64 above, it is evident that Manish happened to see the
deceased on 24.08.2002 by chance. Thus, Manish Gupta PW-14, is a chance witness. The testimony
of a chance witness, although not necessarily false, is proverbially unsafe. (See the decision of
Supreme Court reported as Guli Chand v State of Rajasthan AIR 1974 SC 276). Therefore, we do not
consider it safe to place any credence upon his testimony that he had seen that the deceased was
sitting along with Sharda Jain in a car in the afternoon of 24.08.2002.
233. As already noted herein above, Sharda Jain admitted in her examination under Section 313
Cr.P.C. that the deceased was present with her till the afternoon of 24.08.2002. It is settled law that
the statement made by accused under Section 313 Cr.P.C. can certainly be taken aid of to lend
credence to the evidence led by the prosecution. (See the decision of Supreme Court reported as
Mohan Singh v Prem Singh (2002) 10 SCC 236). Therefore, it has conclusively been established by
the prosecution that the deceased was present with Sharda Jain in the afternoon of 24.08.2002. The
deceased was not seen alive by anyone after the afternoon of 24.08.2002. Thus, the fact of the
matter is that the deceased was last seen alive in the company of Sharda Jain.
234. In this regards, it is relevant to note the following pertinent observations made by Supreme
Court in the decision reported as Mohibur Rahman v State of Assam AIR 2002 SC 3064:-
"The circumstance of last seen together does not by itself and necessarily lead to the
inference that it was the accused who committed the crime. There must be something
more establishing connectivity between the accused and the crime. There may be

cases where on account of close proximity of place and time between the event of the
accused having been last seen with the deceased and the factum of death a rational
mind may be persuaded to reach an irresistible conclusion that either the accused
should explain how and in what circumstances the victim suffered the death or
should own he liability for the homicide." (Emphasis Supplied)
235. A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu v State
of Maharashtra AIR 2003 SC 3131.
236. The reasonableness of the explanation offered by the accused as to how and when he parted
company with the deceased also has a bearing on the effect of last seen in a case. In the decision
reported as State of Rajasthan v Kashi Ram AIR 2007 SC 144 Supreme Court observed as under:-
It is not necessary to multiply with authorities. The principle is well settled. The
provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in
laying down that when any fact is especially within the knowledge of a person, the
burden of proving that fact is upon him. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and when he parted company. He
must furnish an explanation which appears to the Court to be probable and
satisfactory. If he does so he must be held to have discharged his burden. If he fails to
offer an explanation on the basis of facts within his special knowledge, he fails to
discharge the burden cast upon him by Section 106 of the Evidence Act. In a case
resting on circumstantial evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him, that itself provides an
additional link in the chain of circumstances proved against him. Section 106 does
not shift the burden of proof in a criminal trial, which is always upon the prosecution.
It lays down the rule that when the accused does not throw any light upon facts which
are specially within his knowledge and which could not support any theory or
hypothesis compatible with his innocence, the Court can consider his failure to
adduce any explanation, as an additional link which completes the chain. The
principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.
237. From the afore-noted judicial pronouncements, it is clear that effect of last seen on the guilt of
accused depends upon following four factors:-
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of
murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.

(v) Reasonableness of the explanation offered by the accused.
238. In the instant case, there is proximity between the time of last seen and time of death of the
deceased inasmuch as the deceased died on 24.08.2002 and he was last seen alive in the company of
Sharda Jain in the afternoon of 24.08.2002. The place of murder of the deceased was a secluded
area. The explanation offered by Sharda Jain in her examination under Section 313 Cr.P.C.
regarding the circumstances in which she parted company with the deceased on 24.08.2002 was
that the deceased got down from her at ISBT. Is the said explanation reasonable and satisfactory?
The answer is an emphatic NO. Sharda Jain has not stated about her movements after the deceased
allegedly got down from her car. Sharda Jain denied having gone to vicinity of spot A on 24.08.2002
which claim has been found false by us.
239. In view of the aforesaid facts, the fact that the deceased was last seen alive in the company of
Sharda Jain is highly determinative of the guilt of accused Sharda Jain.
240. The next circumstance used by the learned Trial Judge to infer the guilt of Sharda Jain is that
Sharda Jain misled the family members of the deceased when they made enquiries 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 investigation.
243. We shall be further dwelling on the impact of last seen evidence in the instant case while
summarizing the evidence against Sharda Jain.
244. The next circumstance used by the learned Trial Judge to infer the guilt of accused Sharda Jain
is that two meetings took place between accused Sharda Jain, Raj Kumar, Roshan Singh and
Rajinder Singh at the residence of Sharda Jain few days prior to 24.08.2002.
245. The discussion contained in the impugned judgment in said respect is as under:-
"The hatching of criminal conspiracy at the house of Sharda Jain in consultation with
her brother Raj Kumar and two other persons also stands well established not only
from the overall facts and circumstances of the case but also from the testimony of
her driver PW11-Om Parkash Chauhan. He clearly stated in his deposition that a few

days prior to 24-8-02 accused Raj Kumar twice came to the house of Sharda Jain
along with two other persons. Though, it will be worthwhile to mention that this
witness though stated that the said other two persons were not accused Roshan Singh
and Rajinder Singh but the fact that a meeting did take place between four persons
including accused Sharda Jain and Raj Kumar at the house of Sharda Jain a few days
prior to 24-8-02 becomes relevant when seen and analyzed in the overall facts and
circumstances of the case. I shall be separately discussing as to how it also stands
established from the record that said two other persons could be none else but
accused Roshan Singh and Rajinder Singh only and this aspect of the testimony of
PW11 Om Parkash Chauhan cannot be given much credence." (Emphasis Supplied)
246. Although the learned Trial Judge has held that he shall be separately discussing that two
persons who came along with accused Raj Kumar to the house of Sharda Jain few days prior to
24.08.2002 were accused Roshan Singh and Rajinder Singh, no such discussion is found in the
impugned judgment.
247. The prosecution sought to establish through the testimony of Om Parkash Chauhan PW-11, the
driver of Sharda Jain, that accused Raj Kumar along with accused Rajinder and Roshan Singh
visited the residence of Sharda Jain on two occasions just few days prior to 24.08.2002 and that
suspicious talks took place between Sharda Jain and Roshan Singh during the said visits. However,
Om Parkash Chauhan did not support the case of the prosecution and denied that accused Raj
Kumar was accompanied by accused Rajinder and Roshan Singh during his visits to the residence of
the deceased or that he heard any talks between Sharda Jain and Roshan Singh.
248. Accused Raj Kumar is the brother of Sharda Jain. Being councilor of MCD, Sharda Jain was a
public figure and 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 Jain sent a
fat man to his residence in the late hours of night of 24.08.2002 and that the said person told him
that Sharda Jain is calling him has not been controverted by the defence. Likewise, the evidence of
Shanti PW-10, that on occasion a boy came to her house and told her that Sharda Jain is calling Om
Parkash has not been controverted.
251. In this regards, a submission was advanced by the learned senior counsel for the defence that
there is a serious contradiction between the evidence of Om Parkash Chauhan and Shanti inasmuch

as Om Parkash deposed that a boy came to his house to call him while Shanti deposed that Sharda
Jain herself came to her house to call Om Parkash. Counsel urged that the said material
contradiction shows that the witnesses Om Parkash and Shanti are not truthful witnesses.
252. To appreciate the submission of learned senior counsel, the following two depositions of Shanti
PW-10, made by her in her testimony need to be noted.
a) (Quote) Once Sharda Jain had come to my resident and sent a boy inside the house to call my son
Om Parkash.
b) (Quote) It was about 12 in the night when one boy came to me and asked that Om Parkash had
been called by Sharda Jain.
253. Shanti PW-10, is a rustic woman. What should be the approach of the Court while appreciating
ocular evidence of a rustic witness? The answer to this question lies in the following observations
made by Supreme Court in the decision reported as Shivaji Sahabrao Bobade & Anr v State of
Maharashtra AIR 1973 SC 2622:-
Now to the facts. The scene of murder is rural, the witnesses to the case are rustics
and so their behavioral pattern and perceptive habits have to be judged as such. The
too sophisticated approaches familiar in courts based on unreal assumptions about
human conduct cannot obviously be applied to those given to the lethargic ways of
our villages. When scanning the evidence of the various witnesses we have to inform
ourselves that variances on the fringes, discrepancies in details, contradictions in
narrations and embellishments in inessential parts cannot militate against the
veracity of the core of the testimony provided there is the impress of truth and
conformity to probability in the substantial fabric of testimony delivered.
254. In the backdrop of aforesaid observations of the Supreme Court, when the afore-noted two
depositions are read harmoniously, the so-called contradiction pointed out by learned senior
counsel is clearly explainable. It is clear that when Shanti was told by the boy that Sharda Jain is
calling her son, she perceived that Sharda Jain is present outside her house and has sent the boy
inside her house to call her son and on basis of said 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 Sharda Jain of trying to contact Om
Parkash in the late hours of the night of 24.08.2002 raises strong suspicion against her and thus is a
pointer towards the guilt of accused Sharda Jain.
257. Motive of Sharda Jain:The last circumstance used by the learned Trial Judge to infer the guilt
of accused Sharda Jain is the motive of Sharda Jain to commit the crime of murder of the deceased.
258. As per the case projected by the prosecution in the charge-sheet (see para 48 above for
reference), the motive of Sharda Jain to commit the murder of the deceased was (i) her love for
deceased because of which she could see the deceased getting close to Memwati Berwala; (ii) hatred
towards the deceased as the deceased for whom she left her husband was getting close to Memwati
Berwala and (iii) jealousy as the deceased was promoting the political career of Memwati Berwala.
259. A perusal of the testimony of the witnesses examined by the prosecution to prove the motive of
Sharda Jain noted in paras 86 to 96 above shows that Mahender Pal Gupta PW-8, is the lynchpin of
the case set up by the prosecution pertaining to motive of Sharda Jain.
260. The most important statements in the testimony of Mahender Pal Gupta is that Sharda told
him that she liked the deceased and that she expressed her displeasure over the fact that despite the
fact that she is the Chairman of Education Committee the deceased made Memwati Berwala as a
Chief Guest in a function held at a school.
261. The aforesaid deposition of the witness could have easily been corroborated by the prosecution
by adducing evidence to the effect that Memwati Berwala presided over as Chief Guest in a function
held at a school. However, no such proof was adduced by the prosecution. Considering the fact that
evidence of Mahender Pal Gupta PW-8 has been found to be false in respect of pointing out of place
of murder of deceased and identification of the body of the deceased, we do not consider it safe to
place any reliance on the aforesaid uncorroborated evidence of Mahender Pal Gupta.
262. A close scrutiny of the evidence of Mahender Pal Gupta reveals that the same suffers from two
serious infirmities. As per Mahender Pal Gupta, after getting elected as Municipal Councilor, Sharda
Jain told him that she „has left her husband because of her liking for the deceased. The election in
question was held in July 2002 (The said fact was deposed to by Mahender Pal Gupta). The husband
of Sharda Jain left her in the year 2000 as evident from the reading of the contents of the DD entries
Ex.PW-28/A and Ex.PW-7/A. Therefore, the deposition of Mahender Pal Gupta that Sharda Jain
told him that she left her husband in the 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 to
pay the expenses incurred on the treatment of the deceased.
265. Has Dr.S.C.Rajput PW-3, proved that the deceased used to visit his clinic.
266. As already noted in para 88 above, except for the entries pertaining to the visits of the deceased
no other entry has been recorded in pencil in the entry register Ex.PW-3/A maintained by the
witness. No explanation is forthcoming from the testimony of the witness as to why only the entries
pertaining to the visits of the deceased have been recorded in pencil. The witness has also admitted
to the factum of overwriting in the entry register Ex.PW-3/A. In that view of the matter, no credence
can be placed upon the testimony of Dr.S.C.Rajput PW-3 that the deceased used to visit his clinic.
267. It may be noted here that it was strenuously argued by learned counsel for Sharda Jain that a
perusal of the entry register PW-3/A shows that an attempt was made by the prosecution to create
false evidence against the accused persons, which fact has seriously tainted the veracity of the case
of the prosecution. It is settled law that the infirmity in one piece of evidence adduced by the
prosecution does not render doubtful the whole case of the prosecution.
268. The next piece of evidence pressed into service by the prosecution to prove that Sharda Jain
used to accompany the deceased during his visits to the clinic of Dr.S.C.Rajput is the recovery of a
denture set from the car of Sharda Jain on which words „S.C.Rajput were engraved. Nothing turns
on the said fact for the reason the denture set recovered from the car of Sharda Jain was not put to
Dr.S.C.Rajput. He did not identify the same as prepared by him. Therefore, it has not been
established by the prosecution that the denture set in question was made by Dr.S.C.Rajput.
269. Another piece of evidence relied upon by the prosecution to prove the motive of Sharda Jain is
that Sharda Jain attempted to commit suicide. Nothing turns on the said fact inasmuch as no
evidence is forthcoming on record to show that Sharda Jain attempted to commit suicide on account
of failed relationship with the deceased. On the contrary, the evidence, noted in paras 93 to 95 above
show that she attempted suicide in the year 2000 when Memwati Barwala was not even in the scene.
270. The last piece of evidence relied upon by the prosecution to prove the motive of Sharda Jain is
the photograph Ex.PW-58/A which shows the deceased and Memwati Berwala standing close to
each other in a public function. (It may be noted here that the function in question is not the
function mentioned by Mahender Pal Gupta in his testimony) By no stretch of imagination, it 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 in cases depending on direct
evidence whereas motive is material only when the case depends upon circumstantial
evidence. There is no legal warrant for making such a hiatus in criminal cases as for
the motive for committing the crime. Motive is a relevant factor in all criminal cases
whether based on the testimony of eye witnesses or circumstantial evidence. The
question in this regard is whether a prosecution must fail because it failed to prove
the motive or even whether inability to prove motive would weaken the prosecution
to any perceptible limit. No about, if the prosecution proves the existence of a motive
it would be well and good for it, particularly in a case depending on circumstantial
evidence, for, such motive could then be counted as one of the circumstances.
However, it cannot be forgotten that it is generally a difficult area for any prosecution
to bring on record what was in the mind of the respondent. Even if the Investigating
Officer would have succeeded in knowing it through interrogations that cannot be put
in evidence by them due to the ban imposed by law."
274. It is also relevant to note the following observations of Supreme Court in the decision reported
as Ujjagar Singh v State of Punjab (2007) 14 SCALE 428:-
"It is true that in a case relating to circumstantial evidence motive does assume great
importance but to say that the absence of motive would dislodge the entire
prosecution story is perhaps giving this one factor an importance which is not due
and (to use the clichi) the motive is in the mind of the accused and can seldom be
fathomed with any degree of accuracy"
275. The prosecution has thus established that Sharda Jain was last seen in the company of the
deceased in the afternoon of 24.8.2002 and thereafter the deceased went missing. He was killed on
the same day. The destination of the deceased and Sharda Jain was Ghaziabad when they were last
seen together. The place where the dead body of the deceased was found was a canal flowing from
village Chajjupur which is about 20 kms away from Ghaziabad. The spot where the deceased was
killed is spot A which was not in the knowledge of the police and its whereabouts surfaced only after
Sharda Jain made her disclosure statement. The spot is near the embankment of the canal in which,
further downstream the dead body of the deceased was discovered. Sharda Jain tried to mislead the
family members of the deceased and had tried to surreptitiously contact her driver in the night with
the obvious intention to pressurize him to withhold truth from the police. Said evidence is sufficient
wherefrom the guilt of Sharda Jain can be inferred. Assuming that 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 & Anr. Vs. 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 evidence wherefrom his guilt could be inferred for the reason he had also
pointed out the place where the dead body of Rahul was buried. In the decision reported as AIR
1955 SC 801 Deonandan Mishra Vs. State of Bihar a husband and wife were seen in a train at
Chakand Railway Station at around 11:00 PM in the night. The train passed through Gaya Town.
The dead body of the wife was found at the outskirts of the city of Gaya the next morning. The
husband was convicted on last seen evidence. This Bench, while deciding a batch of appeals, lead
appeal being Crl.A.No.362/2001 Arvind Vs. State, decided on 10.8.2009, while referring to the
decision in Deonandan Mishra s case (supra) had held that with reference to the last seen evidence
theory, the circumstance of the accused and the victim being co-passengers i.e. starting their journey
together would require an inference to be drawn that they should reach their destination together
and one of them dying a homicidal death, the other must own up responsibility unless he explains
the circumstance of the two parting company. In the instant case, the fact that Sharda Jain and the
deceased left together, and the deceased died the same day without reaching his destination would
entitle this Court to draw an inference against Sharda Jain on last seen evidence alone and if linked
with the attempt made by Sharda Jain to mislead the family members of the deceased and her
attempt to contact her driver the same night in very suspicious circumstances are enough to nail her.
276. The net result of the above discussion is that even ignoring the parts of the faulty reasoning of
the learned Trial Judge and incriminating circumstances relatable thereto, the prosecution has been
able to prove the complicity of accused Sharda Jain in the conspiracy to murder the deceased.
CASE AGAINST ACCUSESD RAJ KUMAR
277. Visit of accused Raj Kumar to the residence of Sharda Jain: The first circumstance used by the
learned Trial Judge to infer the guilt of accused Raj Kumar is that he along with two other persons
visited the residence of Sharda Jain on two occasions just few days prior to 24.08.2002.
278. We have already discussed in paras 246 to 248 above that there is nothing incriminating in the
conduct of accused Raj Kumar in visiting the residence of Sharda Jain along with two other persons
just few days prior to 24.08.2002.
279. Location of residence of accused Raj Kumar: The next circumstance used by the learned Trial
Judge to convict accused Raj Kumar is that he is a resident of village Gulawati which is situated in
the vicinity of village Chajjupur where the murder of the deceased was committed.

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 circumstance is factually incorrect inasmuch as accused Raj Kumar in his
statement under Section 313 Cr.P.C. stated that save and except Sharda Jain he has never met any
other accused person at any point of time in his life.
283. Sudden arrival of accused Raj Kumar at the residence of Sharda Jain on the day of her arrest: -
The fourth circumstance used by the learned Trial Judge to convict is the fact of sudden arrival of
accused Raj Kumar at the residence of Sharda Jain on the day of her arrest.
284. We fail to understand what is incriminating in the conduct of accused Raj Kumar of arriving at
Sharda Jain s residence on the day of her arrest. Sharda Jain is the sister of accused Raj Kumar.
285. Conduct of accused Raj Kumar in pointing out spot A: - The fifth circumstance used by the
learned Trial Judge to convict accused Raj Kumar is that he pointed out the place of murder of the
deceased.
286. As already noted in the foregoing paragraphs, accused Sharda Jain and Raj Kumar pointed
spot A (which we have already held to be the place of murder of the deceased) to the police. It is not
forthcoming from the evidence on record that which of the accused person first pointed out spot A
or that both the accused persons simultaneously pointed out spot A. Be that as it may, the fact of the
matter is that either one of the accused person or both of them pointed out spot A to the police
inasmuch as said spot was not in the knowledge of the police before it was pointed out. In case of
Sharda Jain, an assurance is forthcoming from the evidence on record that she did point out spot A
inasmuch as spot A was known to her before it was pointed out to police. The said knowledge can be
inferred from the proved facts that Sharda Jain was present in the vicinity of spot A on 24.08.2002
and that mud found on the tyre of her car had similar physical characteristics as soil found at spot A.
But, in the case of Raj Kumar, no assurance is coming from the evidence on record that he did point
out spot A to the police. There is no evidence to show that spot A was known to accused Raj Kumar
before it was pointed out to police. It is also relevant to note that HC Sunita PW-31, who was part of
the police party which conducted investigation at spot A on 28.08.2002 deposed that (Quote)„In my
presence, accused Raj Kumar had not pointed out any place in village Chajjupur. In view of
aforesaid deposition of HC Sunita PW-31, the possibility that Sharda Jain pointed out spot A to
police and pursuant to that accused Raj Kumar was made to point spot A by the police cannot be

ruled out. Therefore, accused Raj Kumar is 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 correctness of the following submissions advanced by the prosecution:-
"The physical object might have already been recovered, but the investigating agency
may not have any clue as to the "state of things" that surrounded that physical object.
In such an event, if upon the disclosure made such state of things or facts within his
knowledge in relation to a physical object are discovered, then also, it can be said to
be discovery of fact within the meaning of Section 27.
The other aspect is that the pointing out of a material object by the accused himself is
not necessary in order to attribute the discovery to him. A person who makes a
disclosure may himself lead the investigating officer to the place where the object is
concealed. That is one clear instance of discovery of fact. But the scope of Section 27
is wider. Even if the accused does not point out the place where the material object is
kept, the police, on the basis of information furnished by him, may launch an
investigation which confirms the information given by accused. Even in such a case,
the information furnished by the accused becomes admissible against him as per
Section 27 provided the correctness of information is confirmed by a subsequent step
in investigation. At the same time, facts discovered as a result of investigation should
be such as are directly relatable to the information."
291. After analyzing the case law pertaining to Section 27, Evidence Act in great detail, Supreme
Court laid down that aforesaid arguments do not state correct proposition of law. It was held by
Supreme Court that expression „discovery of fact referred to in Section 27 of Evidence Act cannot
be interpreted to mean a pure and simple mental fact or state of mind relating to a physical object
dissociated from the recovery of the physical object. In other words it was held that a fact discovered
has to relate to an object recovered i.e. the recovery of an object and the discovery of a fact go hand
in hand.

292. In view of aforesaid dictum of Supreme Court, the circumstance that investigating agency got
lead from the disclosure statement of accused Raj Kumar cannot be used against him.
293. Recovery of wrist watch of the deceased at the instance of accused Raj Kumar: - The last
circumstance used by the learned Trial Judge to infer the guilt of accused Raj Kumar is that the
wrist watch of the deceased was recovered at his instance.
294. It may be noted here that the watch recovered at the instance of the deceased was not an
ordinary watch. The watch was of make Citizen and was having a gold chain.
295. Before proceeding to 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 from an accused person and utilized it in inventing a recovery from
another person. (4) The property might have been recovered from a third party and
used by the police in one of the impugned recoveries."
"........In considering the possibility of the second hypothesis, regard must necessarily
be had to the nature and value of the property recovered. It should be borne in mind
that when a person hands over to the police valuable property with a view to enable
the police to fabricate a false recovery of this property from someone else, there is
always a possibility of the accused being acquitted and the owner of the property
being deprived of such property. In the present case the property recovered consists
of valuable ornaments of gold and silver and I do not consider that the police
procured this property from someone else with the object of inventing false
recoveries from innocent persons......"
296. The afore-noted four grounds of attack pointed out by Lahore High Court in Shera s case
(supra) can be modified in following manner in case where the recovery effected at the instance of
the accused person is the personal effect of the deceased person:-
(i) The family members of the deceased might have been persuaded by the police to state that an
article which in fact was not possessed by the deceased at the time of his death had been possessed
by him and to hand over such article to the police to be used in fabricating the recoveries from the

accused persons.
(ii) The police might have obtained an article similar to the article possessed by the deceased at the
time of his death from the family members of the deceased and use it for the purpose of fabricating
the recoveries.
(iii) The police might have suppressed some of the articles possessed by the deceased at the time of
his death recovered from an accused person and utilized it in inventing a recovery from another
accused person.
(iv) Article in question might have been recovered from a third party and used by the police in one of
the impugned recoveries.
297. The ground of attack taken in the instant case to assail the purported recovery of the watch of
the deceased at the instance of the deceased is ground no. (ii) namely, the police might has procured
a watch similar to the watch possessed by the deceased at the time of his death and has planted the
same on accused Raj Kumar. The said attack is predicated upon the testimony of Mahender Pal
Gupta PW-8, the photographs Ex.DX and Ex.DX1 of the body of the deceased taken at the time of its
recovery and the manner of conduct of Test Identification of the watch purportedly 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 be elicited
from their cross-examination which could cast a doubt on the veracity of their evidence pertaining
to the recovery of the wrist watch of the deceased.
301. The prosecution further claims that the wrist watch of the deceased recovered at the instance of
accused Raj Kumar was deposited in the Malkhana on the date of its recovery itself i.e.28.08.2002.
Inspector V.S.Meena PW-62 and HC Dinesh Kumar PW-43, have categorically deposed to the said
fact. The witnesses have not been cross-examined on the said point. No suggestions have been given
to the witnesses that the wrist watch of the deceased was not deposited in the Malkhana on
28.08.2002.

302. If indeed the watch of the deceased was not recovered at the instance of accused Raj Kumar
then the police would not taken such a huge risk of showing the recovery of the watch in question
before the date of recovery of the body of the deceased as in all likelihood the body of the deceased
would have shown up with a watch on the wrist of the deceased.
303. As already noted herein above, no questions were put to the other witnesses who were present
at the time of the recovery of the body of the deceased namely, Rajinder Pal Gupta PW-9, Ved
Prakash Gupta PW-15, Rajpal Gupta PW-16 and Amrit Lal Singh PW-37, regarding the presence of
the wrist watch on the body of the deceased at the time of its recovery.
304. A perusal of the evidence relating to the recovery of the body of the deceased shows that
Mahender Pal Gupta was as usual living in his imaginary world and that he was not paying much
attention to the body of the deceased at the time of its recovery. For instance, Mahender Pal Gupta
deposed that artificial teeth were not found in the jaw of the deceased at the time of recovery of the
body of the deceased, which deposition is contrary to the recording contained in the post-mortem
report Ex.PW-21/A of the deceased that six artificial teeth were found in the jaw of the deceased.
The deposition of Rajinder Pal Gupta PW-9, the younger brother of the deceased, that artificial teeth
were found in the jaw of the deceased at the time of the recovery of the body of the deceased
corroborated the aforesaid recording contained in the post-mortem report of the deceased.
305. In these circumstances, no benefit can be defence from the afore-noted evidence of Mahender
Pal Gupta particularly when the evidence pertaining to the date of deposit of the wrist watch in
question in the Malkhana has gone unrebutted.
306. The photographs Ex.DX and Ex.DX1 have been minutely looked by us. Nothing much turns on
the said 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 fact vitiated the evidence pertaining
to the identification of the wrist watch recovered at the instance of accused Raj Kumar?
309. In the decision reported as Kanta Prashad v Delhi Administration AIR 1958 SC 350 it was held
by Supreme Court even though it is prudent to hold a TIP with respect to the witnesses who do not
know accused before the occurrence, the failure to hold such a proceeding would not make the

evidence of identification inadmissible in the Court. It was further held that weight to be attached to
failure to hold a TIP would depend upon facts of each case. Where evidence pertaining to
identification is convincing, the failure to hold TIP would be of no consequence.
310. In this regards, it is also relevant to note the following observations made by Supreme Court in
the decision reported as Earadrabhappa v State of Kerala AIR 1983 SC 446:-
".....There is no merit in the contention that the testimony of these witnesses as

regards identity of the seized articles to be stolen property cannot be relied upon for
want of identification of prior test identification parade. There is no such legal
requirement."
311. Therefore, the mere fact that TIP of the watch in question was not conducted in an
unsatisfactory manner is no ground to reject the evidence pertaining to identification of the watch in
question. It needs to be seen by us whether said evidence is creditworthy or not.
312. Rajinder Pal Gupta PW-9, the younger brother of the deceased, identified the watch recovered
at the instance of accused Raj Kumar as that of the deceased. The witness has deposed that he used
to visit the deceased daily and that the deceased was wearing the said watch since the year 1996.
Therefore, the witness who had seen the deceased wearing the watch in question almost daily for
about six years could have easily identified the watch. Nothing could be elicited from the
cross-examination of the witness which could cast a doubt on the veracity of his testimony.
313. In view of above discussion, we hold that the prosecution has been able to establish that a watch
was recovered at the instance of accused Raj Kumar and that the said watch belonged to the
deceased.
314. The moot question which now merits consideration is, as to what turns on the fact that the
wrist watch of the deceased was recovered at the instance of accused Raj Kumar?
315. The deceased was wearing the wrist watch recovered at the instance of accused Raj Kumar on
24.08.2002. Sumitra Gupta PW-18, categorically deposed to the said fact in her testimony. It is
significant to note here 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.e. on 28.08.2002. The watch of the deceased was an expensive watch as it
was having a gold chain. The possibility that the person who participated in the conspiracy to
murder the deceased was tempted to remove the watch of the deceased cannot be ruled out.
319. Being a woman, Sharda Jain could not have single handedly planned and executed the
conspiracy to murder the deceased. She required contact killers to do the dirty job. She would have
surely required the help of some male person to give effect to her illegal plans. She definitely would
have turned to a close and trusted male person in whom she could have confided and who would
also agree to help her. The husband of Sharda Jain had left her. Raj Kumar is the brother of Sharda
Jain. The fact that the wrist watch of the deceased was recovered at the instance of accused Raj
Kumar shows that Raj Kumar was that close and trusted male person who helped Sharda Jain in
giving effect to her illegal designs. In view of special circumstances of the case, we hold that the fact
of recovery of wrist watch of the deceased at the instance of accused Raj Kumar proves the
complicity of accused Raj Kumar in the conspiracy to murder the deceased.
CASE AGAINST ACCUSED RAJINDER SINGH
320. Last seen: The first circumstance used by the learned Trial Judge to infer the guilt of accused
Rajinder Singh is that the deceased was last seen alive in the company of accused Rajinder Singh.
321. As already noted in foregoing paras, one of the fact which led the learned Trial Court to
conclude that the deceased was last seen alive in the company of accused Rajinder Singh is the
admission made by accused Sharda Jain in her examination under Section 313 Cr.P.C. that accused
Rajinder Singh was present with her and the deceased in her car on 24.08.2002.
322. It is settled law that a statement made by an accused in his examination under Section 313
Cr.P.C. cannot be used against the co-accused.
323. While dealing with Section 342 of the old Code (corresponding to Section 313 of present Code)
in the decision reported as Narayan Swami v State of Maharashtra AIR 1968 SC 609 Supreme Court
observed as under:-
"We have adverted to the above circumstances, only for the purpose of holding that
the learned Sessions Judge, in coming to the conclusion that the appellant is guilty,
has placed considerable reliance on the evidence of Dilawar, given in the dacoity case
and to his statement, made under S.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 S.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 is essentially for the High Court, as a Court of appeal, to investigate, and
come to a conclusion, one way or the other."
324. Therefore, the learned Trial Judge has committed an illegality by using the admission made by
Sharda Jain against accused Rajinder Singh.
325. Excluding the aforesaid admission of Sharda Jain as evidence against Rajinder Singh it needs
to be seen by us that whether the prosecution has been able to establish that the deceased was last
seen alive in the company of accused Rajinder Singh.
326. This takes us to the analysis of the testimony of Om Parkash Chauhan PW-11, the driver of
Sharda Jain and Manish Gupta PW-14, the son of the friend of the deceased.
327. As already held above, Manish Gupta PW-14, is a chance witness and thus we do not think it
safe to place any reliance upon his testimony. There is also another circumstance which casts a
serious doubt on the veracity of his testimony. Manish deposed having identified accused Roshan
Singh when he came to the police station to lodge a report about the missing of his mobile phone. It
is difficult to fathom why coincidences keep happening in the life of said witness. He first happened
to see the deceased in the car of Sharda Jain on 24.08.2002 by chance and then happened to come
at the police station by chance at the time when accused Rajinder Singh was present there. In fact,
the whole story of the witness that he identified accused Rajinder Singh at the police station when
he came there to lodge report about the missing of his mobile phone is seriously dented by the fact
that no such report was lodged by him. The explanation offered by him for not lodging the report
that the police told him to first look for the mobile phone in his house is not plausible.
328. As already noted herein above, Om Parkash Chauhan PW-11, deposed that accused Rajinder
Singh was present in the house of Sharda Jain in the morning of 24.08.2002. That thereafter he
traveled along with the deceased and accused Sharda Jain in the car of Sharda Jain for going to
Firozshah Kotla ground. He further deposed that when he got down from the car of accused Sharda
Jain on 24.08.2002 Sharda Jain told him that accused Rajinder Singh would drive the car in his
absence and thereafter he saw accused Rajinder Singh driving the car of Sharda Jain.
329. The aforesaid testimony of Om Parkash Chauhan PW-11, was not seriously challenged on
behalf of accused Rajinder Singh inasmuch as during the cross-examination a single suggestion was
given to the witness that he was on leave on 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 serioulsly
challenged by the defence and that Om Parkash Chauhan had no reason to give false evidence
against accused Rajinder Singh, we holdconclusion 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 last seen alive in the company of accused Rajinder Singh in the afternoon of 24.08.2002. Two,
that accused Rajinder Singh was driving the car of Sharda Jain in the afternoon of 24.08.2002.
333. Having held that the prosecution has been able to establish that the deceased was last seen
alive in the company of accused Rajinder Singh, we need to determine the effect of said
circumstance on the guilt of accused Rajinder Singh.
334. In the instant case, there is proximity of time of last seen and time of death of the deceased.
335. No explanation has been given by accused Rajinder Singh regarding the circumstances as to
when and how he parted company with the deceased. The response of accused Rajinder Singh to all
the incriminating circumstances put to him in his examination under Section 313 Cr.P.C. including
the circumstance of last seen was a bald denial.
336. In this regard, few judicial decisions may be noted.
337. In Joseph S/o Kooveli Poulo v. State of Kerala 2000 CriLJ 2467 (SC); the facts were that the
deceased was an employee of a school. The appellant representing himself to be the husband of one
of the sisters of Gracy, the deceased, went to the St. Mary's Convent where she was employed and on
a false pretext that her mother was ill and had been admitted to a hospital took her away with the
permission of the Sister in charge of the Convent, PW-5. The case of the prosecution was that later
the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track
to be run over by a passing train. It was also found as a fact that the deceased was last seen alive only
in his company, and that on information furnished by the appellant in the course of investigation,
the jewels of the deceased, which were sold to PW-11 by the appellant, were seized. There was clear
evidence to prove that those jewels were worn by the deceased at the time when she left the Convent
with the appellant. When questioned under Section 313 Cr.P.C., the appellant did not even attempt
to explain or clarify the incriminating circumstances inculpating and connecting him with the crime
by his adamant attitude of total denial of everything. In the background of such facts, Supreme
Court held:

"Such incriminating links of facts could, if at all, have been only explained by the
appellant, and by nobody else, they being personally and exclusively within his
knowledge. Of late, courts have, from the falsity of the defence plea and false answers
given to court, when questioned, found the missing 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 held as under:
"In the absence of an explanation, and considering the fact that the appellants were
suspecting the boy to have kidnapped and killed the child of the family of the
appellants, it was for the appellants to have explained what they did with him after
they took him away. When the abductors withheld that information from the court,
there is every justification for drawing the inference that they had murdered the boy.
Even though Section 106 of the Evidence Act may not be intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond reasonable doubt,
but the section would apply to cases like the present, where the prosecution has
succeeded in proving facts from which a reasonable inference can be drawn regarding
death. The appellants by virtue of their special knowledge must offer an explanation
which might lead the Court to draw a different inference."
339. In Sahadevan alias Sagadevan v. State represented by Inspector of Police, Chennai AIR 2003
SC 215, the prosecution established the fact that the deceased was seen in the company of the
appellants from the morning of March 5, 1985 till at least 5 p.m. on that day when he was brought to
his house, and thereafter his dead body was found in the morning of March 6, 1985. In the
background of such facts Supreme Court observed:
"Therefore, it has become obligatory on the appellants to satisfy the court as to how,
where and in what manner Vadivelu parted company with them. This is on the
principle that a person who is last found in the company of another, if later found
missing, then the person with whom he was last found has to explain the
circumstances in which they parted company. In the instant case the appellants have
failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have
not taken any specific stand whatsoever".

340. In this view of the matter, we hold that the fact that the deceased was last seen alive in the
company of accused Rajinder Singh is determinative of the guilt of accused Rajinder Singh.
341. False defence taken by accused Rajinder Singh: The next circumstance used by the learned Trial
Judge to infer the guilt of accused Rajinder Singh is that a false defence was taken by accused
Rajinder Singh.
342. The defence taken by accused Rajinder Singh in his statement under Section 313 CrPC that he
does not know Sharda Jain and has never visited her residence has already been found to be false.
343. It is settled law that a false defence taken by an accused can be taken as an additional link in
the chain of circumstances against him.
345. 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 acquittal."
346. In the decision reported as State of Maharashtra v. Suresh, (2000) 1 SCC 471, Supreme Court
held as under :-
"It is regrettable that the Division Bench had practically nullified the most formidable
incriminating circumstance against the accused spoken to by PW 22 Dr. Nand
Kumar. We have pointed out earlier the injuries which the doctor had noted on the
person of the accused when he was examined on 25.12.1995. The significant impact of
the said incriminating circumstance is that the accused could not give any
explanation whatsoever for those injuries and therefore he had chosen to say that he
did not sustain any such injury at all. We have no reason to disbelieve the testimony
of PW 22 Dr. Nand Kumar. A false answer offered by the accused when his attention
was drawn to the aforesaid circumstance renders that circumstance capable of
inculpating him. In a situation like this such a false answer can also be counted as
providing "a missing link" for completing the chain."

347. Non-denial of accused Rajinder Singh to his acquaintance with accused Roshan Singh: The last
circumstance used by the learned Trial Judge to infer the guilt of accused Rajinder Singh is that
accused Rajinder Singh did not deny the fact that he was temporarily employed with accused
Roshan Singh as a driver.
348. The aforesaid circumstance is factually incorrect inasmuch as accused Rajinder Singh in
response to question no.3 put to him in his examination under Section 313 Cr.P.C. has vehemently
denied that he was temporarily employed with accused Roshan Singh as a driver. No evidence has
been led by the prosecution to show that accused Rajinder Singh and Roshan Singh were known to
each other or employment of accused Rajinder Singh with accused Roshan Singh. The only
document on record showing the acquaintance of accused Rajinder Singh with accused Roshan
Singh is the disclosure statement of accused Rajinder Singh, contents of which document are
completely inadmissible in evidence.
349. But we find yet another circumstance which points towards the culpability of accused Rajinder
Singh. The same has escaped the notice of the learned Trial Court.
350. It has already been held by us that accused Rajinder Singh was driving the car of Sharda Jain in
the afternoon of 24.08.2002 and that the deceased and accused Sharda Jain were present in the said
car at that time. It has further been held by us that spot A is the place of murder of the deceased and
that Sharda Jain was present at/around spot A on 24.08.2002. Accused Sharda Jain reached
at/around spot A by her car which is evident from the fact that mud found stuck on the tyre of car of
Sharda Jain has similar physical characteristics as soil found at spot A. The date of death of the
deceased is 24.08.2002. The car of Sharda Jain was found by the police at the 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.
351. 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
352. Abscondence of accused Roshan Singh: The first circumstance used by the learned Trial Judge
to infer the guilt of accused Roshan Singh is the abscondence of accused Roshan Singh.
353. The prosecution has sought to establish the abscondence of the deceased through the fact that
the car of accused Roshan Singh was lying as unclaimed at Malkhana from 09.09.2002 to
22.11.2002 till the time the custody of the said car was obtained by Inspector V.S.Meena PW-62.

354. As already noted in foregoing paras, the evidence of that SI Kalicharan PW-57, that one Maruti
800 car bearing registration no.DDU-1371 was lying as unclaimed at Malkhana from 09.09.2002 to
22.11.2002 till the time the custody of the said car was obtained by Inspector V.S.Meena PW-62 and
the evidence of Prabhat Kumar Chaurisia PW-64, that he sold Maruti 800 car bearing registration
no.DDU-1371 to accused Roshan Singh has not been controverted by the defence. Therefore, the
prosecution has been able to prove the fact that the car of accused Roshan Singh was lying as
unclaimed at Malkhana since a considerable period which in turn establishes the abscondence of
accused Roshan Singh.
355. At this juncture, a submission advanced by learned counsel for accused Roshan Singh deserves
consideration. Counsel submitted that pieces of evidence pertaining to abscondence of accused
Roshan Singh were not put to him in his examination under Section 313 CrPC, and therefore
circumstance pertaining to abscondence cannot be used against him. In support of the said
submission, counsel placed reliance upon the decision of Supreme Court reported as Sharad
Birdhichand Sarda v State of Maharashtra AIR 1964 SC 1622.
356. It is no doubt true that the underlying object behind Section 313 Cr.P.C. is to enable the
accused to explain any circumstance appearing against him in the evidence and this object is based
on the maxim audi alteram partem which is one of the principles of natural justice. It has always
been regarded unfair to rely upon any incriminating circumstance without affording the accused an
opportunity of explaining the said incriminating circumstance. The provision in Section 313,
therefore, makes it obligatory on the court to question the accused on the evidence and
circumstances appearing against him so as to apprise him the exact case which he is required to
meet. But it would not be enough for the accused to show that he has not been questioned or
examined on a particular circumstance but he must also show that such non- examination has
actually and materially prejudiced him and has resulted in failure of justice. In other words in the
event of any inadvertent omission on the part of the court to question the accused on any
incriminating circumstance appearing against him the same cannot ipso facto vitiate the trial unless
it is shown that some prejudice was caused to him.
357. 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."
358. In this regards, it is also relevant to quote following observations made by Supreme Court in a
recent decision reported as State of Rajasthan v Kashi Ram AIR 2007 SC 144:-

"Learned Counsel submitted that the aforesaid statement of PW-2 was not
specifically put to the accused when he was examined under Section 313 Cr.P.C.. That
may be so, but in the facts of the case, we find that by such omission no prejudice has
been caused to the appellant. Mamraj, PW-2 had deposed in his presence and was
exhaustively cross-examined by counsel appearing for him. The statement of
Mamraj, PW-2 regarding his having seen the deceased last in the company of the
respondent was not even challenged in his cross-examination. Moreover, from the
trend of the answers given by the respondent in his examination under Section 313
Cr.P.C., it appears that the respondent made only a bald denial of all the
incriminating circumstances put to him, and had no explanation to offer."
359. It is apparent from a perusal of the afore-noted observations of Supreme Court in Kashi Ram s
case (supra) that the factors which weighed with the Court in coming to the conclusion that no
prejudice was caused to the accused due to irregularities in his examination under Section 313
Cr.P.C. were that the evidence of the witness which was not put to him in his examination under
Section 313 Cr.P.C. was not cross-examined by the accused and that the accused made a bald denial
of all the incriminating circumstances put to him.
360. A perusal of the examination of accused Roshan Singh under Section 313 Cr.P.C. shows that
three questions were put to Roshan Singh regarding his abscondence. The first question is question
no.37 in which the fact that a wireless message was flashed to all SSPs and SHOs in India to trace
him was put to him. The second question is question no.43 in which the fact that Inspector
V.S.Meena obtained non-bailable warrants against him as he was evading arrest was put to him. The
third question is question no.50 in which the fact that Inspector V.S.Meena sought initiation of
proceedings under Section 82-83 Cr.P.C. against him as he was evading arrest was put to him. The
response of accused Roshan Singh to the aforesaid questions was ignorance. Therefore, it is not the
case that accused was completely unaware of the fact that the prosecution would be using his
abscondence as an incriminating circumstance against him.
361. Accused Roshan Singh has not controverted the testimonies of the witnesses examined by the
prosecution to establish his abscondence. He made a bald explanation of all the incriminating
circumstances put to him, and had no explanation to offer.
362. 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.
363. 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.
364. 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.
365. 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 occasion for accused Roshan
Singh to be present at said place.
366. With respect to aforesaid circumstance, suffice would it be to state that said circumstance
shows that accused Roshan Singh was absconding and the circumstance of abscondence of Roshan
Singh has already been used as an incriminating circumstance against him.
367. No reason for false implication of accused Roshan Singh: The next circumstance relied upon by
the learned Trial Judge to infer the guilt of accused Roshan Singh is that no reason has been given
by him for his false implication in the present case.
368. We do not consider it proper to infer the guilt of accused Roshan Singh from the aforesaid
circumstance.
369. Pointing out of places of murder of the deceased and the disposal of body of the deceased by
accused Roshan Singh: The next circumstance used by the learned Trial Judge to infer the guilt of
accused Roshan Singh is that accused Roshan Singh pointed out the place of murder of the deceased
as also the place from where the body of the deceased was thrown into the canal.
370. Insofar as pointing out of place of murder of the deceased is concerned, nothing turns on the
same as the said place was already in the knowledge of the police. Likewise, nothing turns on the
fact that accused Roshan Singh pointed out the place from where the body of the deceased was
thrown into the canal for the reason there is no evidence to show that the place pointed out by
accused Roshan Singh was the place from where the body of the deceased was thrown into the canal.
371. Recovery of country made pistols and the gold ring of the deceased at the instance of accused
Roshan Singh: The last circumstance used by the learned Trial Judge to infer the guilt of accused
Roshan Singh is that two country made pistols and the gold ring of the deceased were recovered at
the instance of accused Roshan Singh.
372. Insofar as recovery of country made pistols is concerned, suffice would it be to state that it is
settled legal position that the connection between the object recovered and the offence with which
an offence is charged must always be established by evidence „alinude . In the instant case, there is
no evidence to show that the pistols recovered at the instance of accused Roshan Singh were used to
murder the decassed. Therefore, the circumstance pertaining to recovery of country made pistols at
the instance of accused Roshan Singh cannot be used as an incriminating piece of evidence against
accused Roshan Singh.
373. 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.
374. 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
deceased. Nothing could be elicited from the cross-examination of the said witnesses which could
cast a doubt upon the veracity of the said witnesses.
375. As already noted herein above, the evidence of Sumitra Gupta PW-18, the wife of the deceased,
that the deceased was wearing a gold ring on 24.08.2002 has a ring of truth attached to it inasmuch
as she stated the said fact in her statement to the police which was recorded just few hours after the
missing of the deceased.
376. A close scrutiny of the defence taken by accused Roshan Singh with respect to recovery of the
ring in question reveals that the said defence has no merit. As per accused Roshan Singh, the ring in
question was collected by the Investigating Officer from the wife of the decased on 18.12.2002. The
evidence of Inspector V.S.Meena PW-62 and HC Dinesh Kumar PW-43, that the ring in question
was deposited in the Malkhana on 22.11.2002 has not been controverted on behalf of accused
Roshan Singh. Therefore, when the ring in question was deposited in Malkhana on 22.11.2002
where is the occasion for the Investigating Officer collecting it from the wife of the deceased on
18.12.2002.
377. In view of above circumstances, we thus hold that the prosecution has been able to establish
that a gold ring was recovered at the instance of accused Roshan Singh and that the said ring
belonged to the deceased.
378. Testimony of Subash PW-38: The last circumstance used by the learned Trial Judge to infer the
guilt of accused Roshan Singh is that the testimony of Subash PW-38, establishes that the body of
the deceased was thrown into the canal by accused Roshan Singh.
379. A perusal of the testimony of Subash PW-38, contents whereof has been noted in para 98
above, shows that Subash was an „inimical witness evident from the accused Roshan Singh
defeated the father of the witness in an election and that Subash was a signatory to a complaint
lodged against accused Roshan Singh.
380. Inimical witnesses are not necessarily false witnesses though the fact that said witnesses have
personal interest or stake in the matter must put the Court on its guard and thus the evidence of
such witnesses must be subjected to close scrutiny. (See the decision of Supreme Court reported as
Chander Mohan Tiwari v State of MP AIR 1992 SC 891.

381. A close scrutiny of evidence of Subash PW-38 reveals that he is not a truthful witness. He
claims that through the newspaper reports, after three or four days of the dead body of Atma Ram
Gupta being recovered he realized that the dead body of which he had informed Roshan Singh was
that of Atma Ram Gupta. How could he do so remains a mystery for the reason Subash does not
claim that he saw the dead body about which the children of the 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.
382. 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 been projected by the learned Trial
Judge. He was signatory to a complaint lodged against accused Roshan Singh. His family members
used to contest the elections. Neither was he afraid to get involved in the present matter because had
that been the case he would not have come forward at all to report the matter to the police.
383. Keeping in view the fact that Subash is an inimical witness, the serious discrepancy appearing
in his evidence and his suspicious conduct, we do not consider it safe to place any reliance upon the
testimony of Subash.
384. Thus, there are only two incriminating circumstances against Roshan Singh. Firstly the
recovery of gold ring of the deceased at the instance of accused Roshan Singh. The second is his
abscondence after the day of the murder of the deceased. The two are sufficient to conclude his guilt.
CASE AGAINST ACCUSED PUSHPENDER AND NIRVIKAR
385. Recovery of the I-cards of the deceased at the instance of accused Pushpender and Nirvikar:
The first circumstance used by the learned Trial Judge to infer the guilt of accused Pushpender and
Nirvikar is that the I-cards of the deceased were recovered at their instance.
386. Before we proceed to discuss the aforesaid circumstance, we note few judicial decisions.
387. The first decision is Rex v Jora Hasji 11 Bom H.C.R. 242 wherein West J. observed that „we
must not under cover of this provision allow the discovery of ordinary articles like lathis, knives,
sticks and clothes to be introduced so as to admit what are practically confessions to the police and
that the discovery ought to be of a fact which is directly connected with the crime apart from the
statement itself.
388. The second decision is State v Wahid Bux AIR 1953 All 314 wherein it was observed as under:-

"Further the articles recovered were of a very ordinary type. For instance, from
Waliid Bux a Dua, a Jugnu and a patta were recovered. From Dori completely torn
coat and a dhoti were recovered. From Chandu a lota, a tumbler, a longe were
recovered. Nothing was recovered from the other respondents. These articles were of
ordinary kind and could be found with anybody in the village and the witnesses did
not point out any special features or marks of identification on them. They were not
able to say to whom the articles belonged. In this view of the matter the learned
Sessions Judge did not draw any inference from the fact that these articles were
recovered from the possession of the aforesaid respondents. We arc of opinion that
the learned Sessions Judge was right in rejecting the testimony relating to the
recovery of the articles."
389. The third decision is Shera v Emperor AIR 1943 Null 5 relevant portion whereof has already
been noted in para 295 above.
390. 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-a-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).
391. 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.
392. In this regards, it is most apposite to note the decision of Supreme Court reported as Bhagwan
Singh v State of MP AIR 2003 SC 1088 wherein it was observed as under:-
"In these circumstances, the evidence of recoveries of certain articles of the deceased
on the alleged information, given by the accused is concerned, such evidence in itself
is too weak a piece of evidence to sustain the conviction of the accused. The trial
Judge has held that the recovery of a bottle under memorandum (Ex.P13) which is an
article too ordinary to be stolen and religious book 'Vishram Sagar' with spectacles
belonging to the house of the deceased were articles of title value which no accused
would have carried after committing a crime."
393. From the afore-noted decision the legal principle which can be culled out is that the effect of
recovery of a useless article on the culpability of an accused person is nil.
394. I-cards purportedly recovered at the instance of accused Pushpeder and Nirvikar are useless
articles and are not directly connected with the crime of the murder of the deceased. Therefore, in
view of the above discussion, the said recoveries cannot be taken as pointer to the complicity of
accused Pushpender and Nirvikar in the conspiracy to murder the deceased.

395. Be that as it may, the evidence led by the prosecution in said regard as also the circumstances
surrounding the recoveries in question are suspicious.
396. The membership of the deceased in the organization which has issued the I-card to the
deceased purportedly recovered at the instance of accused Pushpender expired in the year 1995.
Why would the deceased be carrying an I-card pertaining to a membership which has long expired
in his pocket?
397. Ram Chander PW-20, a witness to the recovery of I- card pertaining to accused Pushpender
deposed that no I-card was found in the possession of accused Pushpender at the time when he
conducted a primary search of accused at the time of his arrest. Where did the I-card materialize
from if the same was not found in the primary search?
398. The above two unanswered questions seriously vitiates the case set up by the prosecution with
regard to the recovery of I-card of the deceased at the instance of accused Pushpender.
399. With regard to accused Nirvikar, it is most relevant to note that the disclosure statement of
Nirvikar does not contain a word about the I-card of the deceased.
400. In this regards, it is most relevant to note following observations of Supreme Court in the
decision reported as Pohalaya Motya Valvi v State of Maharashtra AIR 1979 SC 1949:-
"The High Court uses the pronoun 'I' at two places. We, with the assistance of both
the learned Counsel proficient in Marathi language read the original statement. The
reading 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 recovery of bloodstained spear is the only
important circumstance of an incriminating character established in this case and if
the authorship of concealment is not clearly borne out by cogent and incontrovertible
evidence but as the High Court observes left to be inferred by implication, we have
considerable hesitation in placing implicit reliance upon it. More so when it is a
confessional statement which becomes admissible under Section 27 of Evidence Act
though made in the immediate presence of a Police Officer. The recovery of a
bloodstained spear becomes incriminating not because of its recovery at the instance
of the accused but the element of criminality tending to connect the accused with the
crime lies in the authorship of concealment, namely, that the appellant who gave

information leading to its discovery was the person who concealed it. And in this case
Bhamta was another co-accused. The appellant may have only the knowledge of the
place where it was hidden. To make such a circumstance incriminating it must be
shown that the appellant himself had concealed the bloodstained spear which was the
weapon of offence and on this point the language used in the contemporaneous
record Ext. 28 is not free from doubt and when two constructions are possible in a
criminal trial, the one beneficial to the accused Will have to be adopted. Therefore,
this linchpin of the prosecution case ceases to provide any incriminating evidence
against the appellant."
401. Accused Nirvikar is on a better footing than the accused before Supreme Court in Pohalaya s
case (supra). The disclosure statement of Nirvikar does not contains a word about I-card of the
deceased, much less a recording pertaining to authorship of the concealment of the said I-card.
402. In such circumstances, we reject the evidence pertaining to the recovery of the I-cards of the
deceased.
403. Unemployment of accused Pushpender and Nirvikar: The next circumstance relied upon by the
learned Trial Judge to infer the guilt of accused Pushpender and Nirvikar was that they were
unemployed. Merely because accused Pushpender and Nirvikar were unemployed does not mean
that they participated in the conspiracy to murder the deceased.
404. Pointing out of place of murder of the deceased by accused Pushpender and Nirvikar: The next
circumstance used by the learned Trial Judge to infer the guilt of accused Pushpender and Nirvikar
is that they pointed out the place of murder of the deceased. Nothing turns on the same as the said
place was already in the knowledge of the police.
405. 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.
406. 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.
407. 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 establish that
the firearms recovered at the instance of Roshan Singh were possessed or used by accused
Pushpender and Nirvikar. The only documents on record which contains a recording that the
firearms recovered at the instance of accused Roshan Singh were used by Pushpender and Nirvikar

are the disclosure statements of Pushpender and Nirvikar, contents of which are completely
inadmissible in evidence.
408. The net result of the above discussion is that the case of the prosecution fails against accused
Pushpender and Nirvikar.
CASE AGAINST THE POLICE OFFICERS
409. Testimony of Subash PW-38: The first circumstance used by the learned Trial Judge to infer
the guilt of the police officers that the testimony of Subash PW-38, establishes that they provided
aid to Roshan Singh in throwing the body of the deceased into the canal.
410. We have already held above that we do not consider it safe to place any reliance upon the
testimony of Subash PW-38.
411. Abscondence of the police officers : The next circumstance used by the learned Trial Judge to
infer the guilt of the police officers is that they were absconding. In this regards, suffice would it be
to state that abscondence in itself is not the sufficient to infer the guilt of an accused person.
412. Pointing out of places of murder of the deceased and the disposal of body of the deceased by
accused Roshan Singh: The last circumstance used by the learned Trial Judge to infer the guilt of the
police officers pointed out the place of murder of the deceased as also the place from where the body
of the deceased was thrown into the canal.
413. Insofar as pointing out of place of murder of the deceased is concerned, nothing turns on the
same as the said place was already in the knowledge of the police. Likewise, nothing turns on the
fact that the police officers pointed out the place from where the body of the deceased was thrown
into the canal for the reason there is no evidence to show that the place pointed out by accused
Roshan Singh was the place from where the body of the deceased was thrown into the canal.
414. The end result of the above discussion is that the case set up by the prosecution against accused
Sripal Singh, Rakesh Kumar and Satender Kumar fails.
CONCLUSION
415. The end result of the journey undertaken by us is that the appeals filed by Sharda Jain and her
brother Raj Kumar i.e. Crl.A.No.51/2007, criminal appeal filed by Roshan Singh i.e.
Crl.A.No.139/2007 and criminal appeal filed by Rajinder i.e. Crl.A.No.144/2007 are dismissed.
Criminal appeals filed by Pushpinder, Nirvikar, Rakesh Kumar, Sripal Singh Raghav and Satender
Kumar i.e. Crl.A.No.19/2007, Crl.A.No.121/2007 and Crl.A.No.65/2007 are allowed. Pushpinder,
Nirvikar, Rakesh Kumar, Sripal Singh Raghav and Satender Kumar are acquitted of the charges
framed against them. Such of the accused who are in custody and whose appeals are allowed are
directed to be set free unless required in custody in some other case. Such accused who have been
acquitted and are on bail, we discharge their bail bonds and surety bonds.

(PRADEEP NANDRAJOG) JUDGE (INDERMEET KAUR) JUDGE AUGUST 27, 2009 mm/dk

Rakesh Kumar Ors Vs State On 27 August 2009

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Rakesh Kumar & Ors.

vs State on 27 August, 2009

Delhi High Court

% Judgment Reserved on : 21st July, 2009

RAKESH KUMAR & ORS. ..... Appellants

STATE ..... Respondent

SHARDA JAIN & ANR. ..... Appellants

STATE ..... Respondent

PUSHPENDER ..... Appellant

STATE ..... Respondent

ROSHAN SINGH ..... Appellant

STATE ..... Respondent

Crl.A.19, 51, 121, 139, 144 & 65/2007 Page 1 of 183

Indian Kanoon - http://indiankanoon.org/doc/138503005/ 1

RAJINDER @ RAJESH @ RAJU ..... Appellant

STATE ..... Respondent

NIRVIKAR @ DOCTOR ..... Appellant

STATE ..... Respondent

1. Whether the Reporters of local papers may be allowed to

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the

Indian Kanoon - http://indiankanoon.org/doc/138503005/ 2

Indian Kanoon - http://indiankanoon.org/doc/138503005/ 3

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3. Abraded contusion 2.5 cm x 1.5 cm above top of head."

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could be detected thereon as recorded in the report Ex.PW-45/A.

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said ring was conducted, is recorded in Ex.PW- 40/M as under:-

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ANALYSIS OF THE EVIDENCE LED BEFORE THE TRIAL COURT

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E Witnesses to prove the post-mortem report of the deceased:- Dr.S.K.Aggarwal PW-21.

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Ans: It is incorrect that after the rally we were to go to Ghaziabad.

111. The accused led no evidence in their defence.

ANALYSIS OF THE IMPUGNED JUDGMENT

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129. Section 120-A defines „criminal conspiracy as under:-

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