CRL.A./902/2013 of STATE NCT OF DELHI Vs AMIT SHARMA & ORS.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : July 04[th], 2018

+CRL.A. 902/2013

STATE NCT OF DELHI

..... Appellant

Through:Ms. Aashaa Tiwari, Additional PublicProsecutor for the State with ACPDharam Pal and Inspector ShailendraSingh,PoliceStationKanjhawala,Delhi.

Mr.H.K.Chaturvedi,Mr.SagarChaturvedi,Advocatesforcomplainant.

versus

AMIT SHARMA & ORS.

..... Respondents

Through:Mr.D.K.Sharma,Advocateforrespondent No.1.

Mr.B.S. Rana, Ms. Babita Ahlawat,Mr.SatyamSisodia,Mr.ManishAwasthi, Advocate for respondent No.2.

Mr.ArunSharma,Advocateforrespondent No. 3 to 5.

CORAM:HON'BLE MR. JUSTICE VIPIN SANGHIHON'BLE MR. JUSTICE P.S.TEJI

JUDGMENT

P.S. TEJI, J.

1.The present appeal has been filed by the State underSection 378 Cr.P.C. against the judgment dated 24.07.2012 passed bylearned ASJ–II, (Outer) Rohini Court, Delhi whereby the respondents/accused persons have been acquitted for the offence punishable underSection 302/364-A/201/120B/34 IPC, in case registered as FIRNo.227/2003, P.S. Kanjhawla, Delhi.

2.The factual matrix, as emerging from the record, is that on25.09.2003 DD No. 35 (Ex. PW-25/A) was received in the policestation regarding kidnapping of the deceased Tarun Kumar for ransom.SI Balbir Singh along with Constable Rajbir Singh reached the houseof the complainant, namely, Satish Bhardwaj who in his statementstated that his son Tarun Kumar @ Chintu aged about 18 years, studentof B.A(Pass) 1[st]year in Satyawati Evening College went missing. On25.09.2003 he left the house as usual and did not return at the usualtime of 7:30 pm. They called on the mobile phone of Tarun bearing no.[REDACTED].Initially, phone was not attended, but after some timewhen his nephew Hemant Bhardwaj called from his mobile phoneno.011-32332151 on the mobile phone of Tarun, someone picked thephone and informed that Tarun was with them. He asked Hemant toarrange sum of Rs. 20 Lakhs. The complainant raised apprehensionthat his son had been kidnapped for ransom of Rs. 20 Lakhs.On thebasis of the statement of the complainant an FIR (Ex. PW-1/B) wasinitially registered under Section 364A IPC on 26.09.2003. Mobilephone of the complainant was kept under observation. Tarun’s

associates were asked about his whereabout in his college. Duringinvestigation it was revealed that Tarun was having friend AmitSharma in the college, and on 25.09.2003 he went away along with theaccused Amit Sharma. The investigatin officer, however, did notidentify any person who may have witnessed/seen Tarun go with theaccused Amit Sharma. During interrogation, Amit Sharma stated thathe had nothing to do with Tarun.

3.On 28.09.2003 an information regarding recovery of adead body matching with the details of Tarun was received and it wasrevealed that the same was lying in PG IMS, Rohtak. The IO alongwith the complainant Satish Bhardwaj (PW-3) and neigbour RajKumar (PW-15) went to PG IMS, Rohtak where ASI Ram Rattan, PSGannor, Haryana met them and the dead body was identified as that ofTarun by the complainant (PW-3) vide Ex.PW3/B. Post-mortem on thedead body was got conducted and then it was handed over to hisrelatives. The complainant Satish Bhardwaj in his statement Ex. PW-3/B stated that this son Tarun was wearing gold chain with ShriRam locket, sports shoes, having mobile phone and diary with the NITI-card, I-card of Satyawati College and few other papers, which werenot found on the dead body. Penal Sections 302/201 IPC were added tothe case.Call details ofmobile phones of deceased bearingnos.[REDACTED] (Ex.PW22/A) and [REDACTED] (Ex.PW21/A), and ofmobile phone no.35228221(Ex PW-24/1) of accused Devender Kumarwere collected. During investigation it was revealed that on 25.09.2003at 10:30 pm call from no. 27781472 was made on the mobile phoneof accused Devender, which was found to be of the STD booth nearthe house of accused Amit Sharma. It was also revealed that on thenight intervening 25/26.09.2003, in the early morning at 04:06 am,04:13 am, and 06:09 am three outgoing call were made from themobile phone of accused on phone no. 27781824 installed at the houseof the accused Amit Sharma.

4.According to the prosecution, on 02.10.2003 accusedAmit Sharma was interrogated and he confessed in his disclosurestatement (Ex.PW16/C) that on 21.09.2003 he along with his co-accused Devender Kumar, Vivek Gaur @ Lovely, Shiv Kumar @Shiva and Amit Khatri @ Ramlu had planned to kidnap Tarun and, inpursuance of the same, on 25.09.2003 he took Tarun on his scooter tothe shop of Devender and Shiv Kumar at Bakhtawar Pur, Samey SinghMarket. Accused Amit Khatri demanded money from the relatives ofdeceased. On 26.09.2003 they all killed the deceased and then his deadbody was taken in the car and was thrown on the road side nearGannor. Mobile phone and purse of deceased were thrown by AmitKhatri in pond. Accused Amit Sharma was arrested and he gotrecovered one gold chain along with Shri Ram locket of deceasedwhich was lying in an iron box in his room which were seized videEx.PW16/E.

5.Accused Amit Khatri was personally searched videEx.PW16/G and was arrested vide Ex.PW16/F on 02.10.2003; and,from his pocket ring of the deceased was seized vide Ex.PW26/I. Onthe pointing out of accused Amit Khatri (Ex.PW16/L), Maruti car

bearing no. DL 3CT 1804-which was used to ferry the dead body waschecked, in which one blood stained sack and one blood stainedplywood board were found. Photographer was called on the spot andthe spot was got photographed by PW8.Thereafter, the sack wasseized vide Ex.PW16/J and piece of plywood was seized videEx.PW16/K.One scooter bearing no. HR 10E 6665-which wasallegedly used by accused Amit Sharma to take away the deceased,lying parked in front of house of accused Amit Khatri, was seized videEx.PW16/M. Accused Vivek Gaur @ Lovely, Devender Kumar andShiv Kumar were arrested from Vandana Studio vide arrest memosEx.PW16/R, Ex.PW16/P and Ex.PW16/N respectively. Mobile phoneno. 35228221 recovered from accused Devender Kumar was seizedvide Ex.PW16/W. Accused persons pointed out the place insideVandana Studio, where they had committed the murder of deceased.One Titan Watch-which was worn by accused Vivek Gaur, belongingto deceased was seized vide memo Ex.PW16/X, and pair of shoesrecovered from the accused Shiv Kumar from his shop, were seizedvide Ex.PW16/Y. One bag was produced by accused Amit Sharma,disclosing that with the said bag deceased was smothered. The saidblood stained bag was seized vide Ex.PW16/Z and the blood stainedwallwasseizedvideEx.PW16/ZAandthesameweregotphotographed.All the accused persons pointed out the place ofthrowing the dead body vide Ex.PW16/A1 to A5. All the exhibits weredeposited in the Malkhana on 03.10.2003.On 03.10.2003, on thepointing out of accused Amit Sharma vide Ex.PW16/ZC and AmitKhatri vide Ex.PW16/ZB, purse and mobile phone of deceased were

searched in the pond of Tikri Khurd Village and the diver (PW4)recovered the purse containing I-Cards, DTC Bus Passes, DrivingLicense and Cash Receipt of NIIT belonging to deceased which wereseized vide Ex.PW4/A.However, the mobile phone could not berecovered. All the exhibits were deposited in the Malkhana on03.10.2003.

6.After completion of investigation final report underSection 173 Cr.P.C. was filed and on 29.07.2004, charge under Section120-B IPC and under Sections 364-A/302/201/120-B IPC were framedagainst the respondents/ accused herein to which they pleaded notguilty and claimed trial.

7.In order to prove the accused guilty, the prosecutionexamined 26 witnesses, star witnesses being PW-3, PW-9, PW-11.After completion of prosecution evidence, statements of the accusedpersons under Section 313 Cr.P.C. were recorded in which theyclaimed innocence and denied the entire case of the prosecution.

8.On appreciation of evidence and material brought onrecord, the trial court acquitted the respondents for the offencescharged against them. Feeling aggrieved by the judgment of acquittal,the State preferred leave to appeal against the impugned judgment,which was allowed by this Court vide order dated 18.07.2013.

9.Argument advanced by the learned APP for the State isthat the present case is based upon circumstantial evidence and theprosecution has proved the entire chain of circumstances to bring home

the guilt of the accused persons. Accused Amit Sharma got recoveredgold chain with Shri Ram locket and also the wallet belonging to thedeceased. Both these articles were recovered on the basis of disclosurestatement made by the accused Amit Sharma.The wallet wasrecovered by the diver Abdul Sattar (PW4).Accused Amit Sharmaalso got recovered blood stained bag of grams with which the deceasedwas smothered.Regarding recovery made at the behest of accusedAmit Khatri, it is submitted that he disclosed about the commission ofoffence and got recovered blood stained gunny bag and blood stainedplywood from the car used in the crime. It is further submitted thataccused Shiv Kumar got recovered sports shoes of the deceased.Accused Vivek Kumar Gaur got recovered wrist watch of the deceasedwhich the accused was wearing at the time of his apprehension.Learned counsel for the complainant has argued that the articlesbelonging to the deceased were recovered from the accused personsand as per the call details, they all were in touch with each other andwith the deceased, which clearly points towards their guilt in thecommission of murder of the deceased.It is further submitted thatrecovery of articles of the deceased from the accused persons raises apresumption under Section 114 of the Indian Evidence Act against theaccused persons.In support of the above contentions, reliance hasbeen placed on Ranjeet Kumar Ram @ Ranjeet Kumar Das versusState of Bihar, 2015 (3) JCC 2065; Mahavir Singh versus State ofHaryana, (2014) 6 SCC 716;Mritunjoy Biswas versus Pranab @KutiBiswas, (2013) 12 SCC 796;Hema versus State Through Inspector ofPolice, Madras, AIR 2013 SC 1000;State Government of NCT of Delhi

versus Sunil & Anr., 88 (2000) Delhi Law Times 630 (SC);State ofMaharashtra versus Damu, (Crl. Appeal of 992-993 of 1999, decidedby Supreme Court of India on 01.05.2000); Chandrakanta Jha verusState (Govt. of NCT of Delhi) (Crl. Appeal No. 655/2013 & DeathReference 3/2013, decided by High Court of Delhi on 27.01.2016);Chatpal @ Satpal versus State, 2011 (123) DRJ 131 (DB); GulabChand versus State of Madhya Pradesh, AIR 1995 Supreme Court1598; Geejaganda Somaiah versus State of Karnataka, (2007) 9Supreme Court Cases 315; Bablu Kumar and Others versus State ofBihar and Another, (2015) 8 SCC 787; State of Gujarat versusKishanbhai and Others, (2014) 5 SCC 108; Pooja Pal versus Union ofIndia and Ors., AIR 2016 SC 1345; Prithvi Pal Singh @ Munna versusState, 2000 (53) DRJ 201.

10.Learned counsel for the accused argued that in the presentcase, the prosecution has not been able to prove all the circumstanceson record convincingly. There are several missing links in the storyput forth by the prosecution. Consequently, the trial court has rightlyacquitted the accused persons.It is submitted that there are severalmaterial contradictions in the documents prepared and the testimoniesof the witnesses, which go to the root of the matter. It is submitted thatthe description of clothes of the deceased given in the DD entry isdifferent from those found on the dead body of the deceased. There isno mention of wrist watch in the recovery memo of the dead body, butthe same was allegedly worn by the deceased at the time of his death.Witness Abdul Sattar (PW-4) has not referred to preparation of

pointing out memo. The call details of the mobile phones of thedeceased, Hemant (nephew of PW3) and accused Devender have beenproduced on record, but the same do not, in any way, connect any ofthe accused with the alleged offence. The call details do not reflectthat any of the accused made any call from his mobile phone orlandline phone to the phone of the deceased or his family membersfrom the time the deceased went missing till the recovery of the deadbody. It is further submitted that the call details produced on recordwere not supported by mandatory certificate as per Section 65-B of theIndian Evidence Act and thus, the same cannot be read in evidence.Public witness Karan Singh (PW-17), the owner of the two shops inSamai Singh Market, Bakhtawar Pur has turned hostile and did notsupport the case of the prosecution. There is no evidence on record toestablish that the shops were taken on rent by accused Devender andShiv Kumar, and from those shops they were running Vandana Studio,or General store. Even the STD booth owner Rajesh (PW20) has notsupported the case of the prosecution. It is further submitted thatthough the inquest proceedings were done on 27.09.2003, but nameand address of the deceased were later on added on 29.09.2003. It isfurther submitted that the prosecution has alleged that the accusedpersons got recovered gunny/plastic bag, but the recovery memomentions that what was recovered was bag (bori).It is furthersubmitted that no recovery, as alleged, has ever been made from theaccused persons or at their instance and the same are planted.Nopublic witness was joined in the recovery proceedings.It is furthersubmitted that there is contradiction regarding the watch worn by the

deceased inasmuch, as, PW13-Ramesh stated that he had seen the wristwatch on the dead body, but the same has been alleged to have beenrecovered from one of the accused persons. It is argued that the post-mortem report of the deceased Ex.PW13/ does not mention anyspecific cause of death.The injuries mentioned in the post-mortemreport Ex.PW23/A are the following:

“(1) There was defused contusion of 5x2 cm on rightparito temparoal region. The underline skull bones wereshowing infilatration of blood in it. The brain matter waspinkish grey in colour.

(2) There was defused contusion of thigh 3x2 cm on the rightoccipital region. The underline skull bone was showinginfilatration of blood in it. The brain matter was pinkishgrey in colour.

(3) There was contusion of thigh 5x4 cm on the left sternalborder at the level of 4/5 ribs.

(4) There was contusion of thigh 7x4 cm on the right sideof chest just below the right nipple.”

The cause of death was opined as :

“The cause of death are the injuries described which areante-mortam and sufficient to caused death in ordinarycourse of nature. The time between death and post-mortemexamination is between 3-7 days.”

However, after recording the disclosure statement of the accused, asecond opinion was sought from the doctor vide Ex.PW26/F and dated12.12.2003, and further opinion was obtained vide Ex. PW23/B-which mentions the cause of death as :

“the injuries described which can be caused by chestcompression and hitting head on some hard surface. Thecombined factors, chest compression and head injuriescan cause death.”

Thus, the subsequent opinion has been obtained to match thedisclosure statement and there is no independent opinion that the deathhad been caused in the manner described in the disclosure statement.In support of the above contentions, learned counsel for accusedpersons/respondents relied upon Shekhar and Anr. Versus The State ofNCT of Delhi, 2008 (2) JCC 871; Ravinder Singh versus Govt. of NCTof Delhi, 2009 (1) JCC 91; Chatpal @ Satpal versus State, 2011 (123)DRJ 131 (DB); Mustkeem @ Sirajudeen versus State of Rajasthan,2011 AIAR (Criminal) 667; Hira Lal versus State, 2011 (3) LRC 262(Del) (DB); Surjit Singh and Anr versus State of Punjab, AIR 1994 SC110; C.K. Raveendran vs. State of Kerala, 2000 Cri.LJ 497; Murlidhar& Ors vs. State of Rajasthan, 2005 AIAR (Criminal) 617; JasmerSingh vs. State of Delhi, 2007 (4) JCC 2861; State of Punjab vs. SarupSingh, 1998 (1) JCC (SC) 57; Babudas vs. State of M.P., 2003 Cri.LJ2536; Order dated 08.11.2011, passed by Delhi High Court in Crl. A.No.757/2009, titled as Chand Mohammad @ Anish Ahmed & Ors. vs.State; Mani vs. State of Tamil Nadu, 2008 (1) C.C. Cases (SC) 217;A.M. Perumal vs star Tours and Travels (India) Ltd., 2011 (2) JCC(NI) 124; Order dated 20.04.2011, passed by Delhi High Court in Crl.A. No.1335/2010, titled as Prem Singh vs. State; Parmanand Yadav vs.State, 2010 (2) C.C. Cases (HC) 374.

11.In rebuttal, Ms.Aashaa Tiwari, learned APP for the Statehas argued that the missing report of the deceased after the ransom callwas made vide DD No.35A (Ex.PW25/A) which was got lodged on25.09.2003. The statement of PW3-Satish Bhardwaj Ex.PW3/A, thefather of the deceased i.e. the Rukka was recorded on the same dayvide Ex.PW25/B (also exhibited as EX PW-3/ A).The FIR wasinitially registered under Section 364A vide Ex.PW1/B on 26.09.2003at 12:30AM. On the next day i.e. on 27.09.2003, the dead body of thedeceased was seen by PW13-Ramesh, who then informed of the sameto PW14-ASI Ram Ratan.Statement of Ramesh is Ex.PW14/B.Statement of PW3 i.e. father of the deceased was recorded on29.09.2003 vide Ex.PW3/B in which he gave the description of themissing items of the deceased. The accused Amit Sharma was arrestedon 2.10.2003 at about 2.10 p.m. vide Ex.PW16/A.Accused AmitKhatri was arrested on the same date at 4.00 p.m. vide Ex.PW16/Fwhereas accused Vivek was arrested at 7.20 p.m. vide Ex.PW16/R.Accused Shiv Kumar was arrested at 7.40 p.m. vide Ex.PW16/N andaccused Devender was arrested at 8.00 p.m. vide Ex.PW16/P on thesame day.12.Though it is submitted that there is no last seen evidenceon record, but the recoveries affected from the accused persons of thebelongings of the deceased clearly make out case against them. Therecovery of purse had been made by the diver Abdul Sattar (PW4)from the pond upon the pointing out of the location by the accusedAmit Sharma and he has duly supported the case of the prosecution

and even the presence of accused Amit Sharma and Amit Khatri at thetime of said recovery has not been disputed. The gold chain of thedeceased was got recovered by accused Amit Sharma from hisresidence vide Ex.PW16/E, whereas ring of the deceased wasrecovered from the wearing pant of the accused Amit Khatri videEx.PW16/F.In the statement Ex.PW3/B, there is mention of Ramlocket in the said gold chain.In the TIP proceedings, the articlesrecovered from the accused belonging to the deceased were correctlyidentified by PW3. It is further submitted that the pointing out memoEx.PW26/B2 of the place of dumping the dead body matches with thestatement of PW14 –ASI Ram Rattan and the statement of PW13-Ramesh regarding the place from where the dead body was recovered.It is further submitted that there is enough evidence on record toconvict the accused persons and the trial court has committed an errorin acquitting them.

13.We have heard the submissions made by the learned APPfor the State assisted by learned counsel for the complainant and thelearned counsel for the respondents. We have also gone through theevidence led by the parties.

14.PW3-Satish Bhardwaj is the complainant and father of thedeceased. He deposed that on 25.09.2003, his son did not return fromcollege and he could not be contacted on his mobile phone.PW3called his nephew Hemant (PW9), to call the mobile phone of thedeceased. At about 10 p.m., Hemant made call on the mobile phoneof the deceased and the receiver of the call informed that they had

Crl.A. 902/2013

kidnapped the deceased and asked them to arrange sum of Rs.20lakhs. On the next day, the mobile phone of the deceased was found tobe not working initially.PW3 further deposed that on 26.09.2003when his brother Sanjay Kumar (PW-11) made call on the mobilephone of the deceased, the person on the other side asked whether themoney had been arranged or not, to which Sanjay informed that themoney had been arranged and asked for the place of its delivery. Onthe intervening night of 28/29.09.2003, he received message from thepolice and on receipt of same, he along with his neighbor Raj Kumar(PW-15) went to PS Kanjhawala.Thereafter, PW3 along with RajKumar was taken to Rohtak Medical Hospital and in the mortuary theymet ASI Ram Rattan (PW-14). dead body was shown to him whichhe identified as of his son Tarun @ Chintu vide Ex.PW3/B. He furtherdeposed that his son was wearing shoes, having purse, having diarywith I-card of Satyawati College, I-card of NIIT and some documents,and gold chain with locket of Shri Ram. The said articles were notfound on the dead body.

15.It was alleged against the accused persons that accusedAmit Sharma was lastly seen in the company of the deceased. PW25-SI Balbir Singh was the IO of the case who had deposed that onenquiries made from the college of the deceased, it was revealed fromthe students of his class that deceased Tarun was lastly seen withaccused Amit Sharma and that deceased was also canvassing foraccused Amit Sharma who was contesting students election.

16.Apart from the testimony of PW25, there is no evidenceon record to establish that the deceased was lastly seen with accusedAmit Sharma. The IO (PW25) did not name any of the students, or thesource from which he came to know about the deceased being lastly inthe company of the accused Amit Sharma on the day he had gonemissing. The IO did not care to record the statement of any of suchwitnesses under Section 161 Cr.P.C. to make out case that it was theaccused Amit Sharma who was lastly seen with the deceased.Thestatement of the IO (PW25) is hearsay evidence and is not anadmissible evidence.

17.We may observe that the failure of the I.O.-S.I. BalbirSingh (PW25) in not identifying the individual who had lastly seen thedeceased in the company of accused Amit Sharma, and not recordinghis statement point to glaring incompetence and shoddy investigation,whichshouldbelookedintobytheconcernedauthoritiesadministratively.We are of the considered opinion that theprosecution has failed to establish on record the circumstance ofdeceased being lastly seen in the company of any of the accusedpersons.

18.Next circumstance brought on record by the prosecution isthat the call details produced on record prove that the accused personsknew each other and the deceased, and that there were conversationsbetween them on the night when the deceased went missing.It isalleged that there were conversations between accused Amit Sharmaand Devender on the early hours of 26.09.2003. It was also alleged

that call was made on the fateful night of 25.09.2003 at 10.04 p.m.from the mobile phone of Hemant (PW9) to the mobile phone of thedeceased, on which ransom was demanded. On the next day at about11.49 a.m., conversation took place between the accused persons andSanjay Bhardwaj-uncle of the deceased, when Sanjay Kumar (PW11)had called themobile number of the deceased with regard toarrangement of ransom money.It was also alleged that since thedeceased was kidnapped by the accused persons, mobile phone of thedeceased also remained with them on which the conversations weremade with PW9 Hemant and Sanjay Kumar (PW-11).

19.The call details of the mobile phone of the deceasedbearingnos.[REDACTED]and[REDACTED]wereexhibitedasEx.PW21/A and Ex.PW22/A respectively, without any objection.However, when PW-24 sought to exhibit the CDR of phoneno.35228221 of accused Devender as Ex.PW24/1, and of Hemantbearing no.32332151 (exhibited as Ex.PW24/12) he was cross-examined on the aspect of his not producing the certificate in terms ofSection 65B of the Evidence Act.In view of the judgment of theSupreme Court in SONU alias AMAR v. State of Haryana (2017) 8SCC 570, the objection now raised for the first time to the mode ofproof of the CDR Ex.PW21/A and Ex.PW22/A cannot be permitted tobe raised. However, the CDR of accused Devender Ex.PW24/1 andthat of Hemant Ex.PW24/12 are not admissible in evidence as theywere not proved since the certificates under Section 65-B of theEvidence Act were not produced. There is force in the contention of

the learned counsel for the accused that the said call details proved onrecord cannot be read in evidence, as the certificate under Section 65Bof the Evidence Act has been appended with them.

20.In any event, in our considered view, the above calldetails in no way connect the accused persons with the commission ofthe crime in the present case.As per the call details, though it isapparent that there were conversations between the accused AmitSharma and Devender with the deceased before the day of his goingmissing, but that does not establish anything-apart from the fact thatthe deceased and accused Amit Sharma were students of the same classin the same college.They were known to each other.There is nodispute with regard to proximity of the accused with the deceased, butthe call details in no way establish that-in the kidnapping of thedeceased, any of the accused were involved. There is nothing to showthat the deceased and the accused were together after the kidnapping.Once again we find that the investigation was sloppy, as no endeavorappears to have been made to find out the location of the mobilephones of the deceased and all the accused. Had the location chartsbeen obtained, it may have been possible to establish that they weretogether- and that would have been an incriminating circumstance.The I.O. of the case has botched up the investigation on this aspect aswell, and it is too late in the day to take any remedial steps at thisstage.

21.So far as the calls made at early hours of 26.09.2003between the co-accused are concerned, the same are between accused

Amit Sharma and Devender, and the same cannot be said to bedoubtful, or such as to raise any suspicion against them since there isno evidence of the deceased being with any of the accused after hewent missing, or at the time when the said calls were made. As per thecall details of the phones of the deceased; his cousin Hemant, and,accused Devender, there is no call from any of the accused’s phonenumber to the phone number of the deceased, or to the phone numberof any of the relative of the deceased, during the time since when thedeceased went missing, and till the discovery of his dead body.

22.So far as the recovery affected from the accused personsis concerned, it is alleged against the accused Amit Sharma that fromhis possession or at his instance, one gold chain with Shri Ram locketof the deceased, purse of the deceased, mobile phone (number:35376199) and blood stained bag and grams were recovered. From thepossession of accused Amit Khatri, one gold ring of the deceased,blood stained jute bag from car, blood stained plywood from the car,scooter and Maruti car were recovered.From the possession ofaccused Shiv Kumar, pair of shoes of the deceased was recovered.From the possession of accused Vivek Gaur, one Titan watch of thedeceased was recovered and from the accused Devender, one mobilephone was recovered. It is argued by the learned APP for the State thatthe recovery of articles of the deceased from the accused persons or attheir instance makes out case against them that they are responsiblefor commission of murder of the deceased. The said contention of thelearned APP has been contested by the learned counsel for the accused

persons that no such recovery had been affected from the accusedpersons or at their instance and the same have been planted upon them.

23.To deal with the rival contentions of the parties withregard to the recoveries effected, we have gone through the evidenceavailable on record. It was alleged against the accused Amit Sharmaand Amit Khatri that after their apprehension they led the police partyto Shivam General Store and Vandana Store where their co-accusedpersons were arrested and accused Amit Sharma got recovered oneblood stained bag having grams. SI Ram Kumar (PW16) had deposedthat accused Amit Sharma got recovered blood stained bag havingkabuli chana from General Store, Samai Singh Market which wasseized vide memo Ex.PW16/Z after transferring the grams in someother bag.As per the case of the prosecution, Vandana Studio andShivam General Store were belonging to accused Devender and ShivKumar. SI Balbir Singh (PW25) had deposed on the similar lines ofPW16 regarding recovery of blood stained bag containing gramsfrom Shivam General Store which was seized vide memo Ex.PW16/Zafter converting the grams from the said bag to another bag. The IO ofthe case Insp. Dharampal Singh (PW26) had deposed that accusedDevender Kumar, Shiv Kumar and Vivek Gaur were arrested at theinstance of accused Amit Sharma and Amit Khatri from VandanaStudio.Accused Amit Sharma produced one blood stained bagcontaining grams which was seized vide memo Ex.PW16/Z.Hefurther deposed that he noticed some blood stains on the wall whichwere scratched and seized vide memo Ex.PW16/ZA. He recorded the

statement of Karan Singh, owner of Shivam General Store andVandana Studio who stated that the said shops were given on rent toaccused Shiv Kumar and Devender Kumar. In his cross-examination,he had admitted that there was no proof with respect to the businesscarried out in the said shops belonging to the accused persons.

24.PW17-Karan Singh had not supported the case of theprosecution. In his testimony, PW17 had deposed that he was ownerof the two shops in Samai Singh Market. He had stated to have giventhe said shops on rent to one Arun about 8-10 years ago which werelater on got vacated by him. During cross-examination by the learnedAPP for the State, PW17 had denied having made any statement to thepolice to the effect that the two shops were given by him on rent toaccused Devender and Shiv Kumar. He denied having acquaintancewith accused Devender and Shiv Kumar. Apart from the testimony ofpolice witnesses (PW16, PW25 and PW26), there is no evidence ormaterial on record to show that accused Devender and Shiv Kumarwere having the possession of the shops in question from where theblood stained bag was allegedly got recovered by the accused AmitSharma. Even the owner of the shop Karan Singh (PW17) had notsupported the case of the prosecution that he had given the said shopson rent to both these accused.

25.There are material contradictions with regard to therecovered bag Ex.P21. As per the testimony of PW25, gunny bagwas recovered, but during his examination in the Court, he was showna plastic bag which he identified to be the same bag which was got

recovered by accused Amit Sharma. PW16 who was witness to therecovery of said bag at the instance of accused Amit Sharma was notshown the bag during his testimony before the Court. The IO (PW26)had stated that bag was got recovered by accused Amit Sharma, buthe identified it to be plastic bag during his testimony.All thesewitnesses have stated that the said bag was having blood stains, but theFSL report Ex.PW26/L negates this statement, which states that nohuman blood was detected on the plastic bag. Thus, there are materialcontradictions with regard to the bag, which go to the root of thematter.

26.It was alleged against accused Amit Khatri that from hispossession one gold ring belonging to the deceased was recovered andat his instance one blood stained jute bag and one blood stainedplywood were recovered from the Maruti Car bearing No. DL 3CT1804. As per the testimony of PW25-SI Balbir Singh and PW26-Insp.Dharampal Singh, when accused Amit Khatri was arrested, hisdisclosure statement was recorded and then the ring was seized whichwas lying in his jeans pocket. The story put forth by the prosecution isdoubtful for the reasons that, it is not expected of an accused that hewould keep the stolen articles with him and on his person. As per thecase of the prosecution, accused Amit Khatri was personally searchedvide memo Ex.PW16/G. This memo Ex.PW16/G shows that nothingexcept Rs.115/- was recovered from the personal search of the accusedAmit Khatri.When accused was searched and nothing except themoney was recovered, how could it be inferred that the ring-which was

kept by him in his pant pocket, was found.According to theprosecution, it was only on his disclosure that the ring was found in hispant pocket which he was wearing, and which was seized videEx.PW16/F. Thus, there is doubt about the recovery of ring from thepossession of the accused Amit Khatri.

27.It was alleged against the accused persons that the deadbody of Tarun was disposed of by keeping it in jute bag which waskept in the dickey of the car. It was also alleged that another jute bagwas recovered from the car was got recovered by accused Amit Khatri,which was seized vide memo Ex.PW16/J.The recovery of the saidjute bag had been proved by PW16-SI Ram Kumar, who had deposedthat the accused Amit Khatri took the police party to nearby place ofhis house and pointed out towards Maruti Car. From the dickey ofthe car, one blood stained gunny bag was found and it was seized.PW25-SI Balbir Singh was also associated with the recovery of car andgunny bag.It has also been stated by PW16, PW25 and PW26-Investigating Officer that from the said car, apart from blood stainedbag, one blood stained plywood was also recovered.All thesewitnesses have not stated anything about the association of any publicwitness in the recovery of car, bag and plywood. There are materialcontradictions regarding the recovery of these articles. PW16 had notstated about the arranging of keys of the car. PW25 and PW26 havestated that the said keys were brought from the house of accused AmitKhatri. The sister of the accused Amit Khatri, namely, Meena (PW19)was examined by the prosecution, but she did not support the case of

the prosecution. She had deposed that she was the registered owner ofthe said car and that the accused Amit Khatri never took that car fromher or from her in-laws. It is also apparent from the record that theplace from where the said car was recovered was public place but theIO had not made any effort to join any independent public witness inthe recovery of either the car, or the bag and plywood from the same.Thus, doubt is raised about the seizure of car, bag and plywood asalleged.

28.It is further the case of the prosecution that the shoes ofthe deceased were got recovered by the accused Shiv Kumar whoproduced the said shoes from Shivam General Store. PW3, father ofthe deceased in his cross-examination had admitted that he had notgiven any specification of the shoes in his statement made to thepolice. It has not come on record that the said shoes were of the size ofthe deceased. The size of the foot of the accused Shiv Kumar has alsonot been disclosed and it is not the case of the prosecution that therecovered shoe was not of the size of the accused Shiv Kumar. Thereis no basis in believing the story of the prosecution, for the reason thatthe prosecution had failed to establish that Shivam General Store wasin possession of the accused Shiv Kumar, or; that he was inducted inthe said shop as tenant. There is no evidence on record to connectthe accused Shiv Kumar with Shivam General Store from where theshoes of the deceased were allegedly recovered.Secondly, nojustifiable explanation has been given by the prosecution as to whyaccused would keep the said shoes in his possession after many days of

the death of the deceased which may not be any of his use. Thus, therecovery of shoes of the deceased at the pointing out of the accusedShiv Kumar is full of doubts.

29.It was also the case of the prosecution that one Titan wristwatch Ex.P2 of the deceased was recovered from the accused VivekGaur.Learned counsel for the accused has argued that no suchrecovery was affected from the accused Vivek Gaur and the same hasbeen planted upon him.

30.It is important to mention that the dead body of thedeceased was firstly discovered by PW13-Ramesh. He had deposedthat on 27.09.2003, at about 7-8 p.m., he was coming from Gannaur toDelhi side on foot.When he reached near Picrik, he saw one deadbody of boy lying in ditch. He informed the police about the deadbody.During cross-examination, PW13 categorically stated that thebody was having wrist watch on his wrist. Even PW3-father of thedeceased had not stated anything with regard to Titan Watch beingworn by the deceased in his statements Ex.PW3/A and Ex.PW3/Brecorded by the police under Section 161 Cr.P.C. No description ofthe watch was given by the father of the deceased and in view of thestatement of PW13-Ramesh, that he found wrist watch on the deadbody, the plantation of the wrist watch in the present case cannot beruled out when it is admitted case of the prosecution that no wristwatch was found on the dead body of the deceased when it wasrecovered. It is also evident from the record that the personal search ofaccused Vivek Gaur was conducted vide memo Ex.PW16/S after his

arrest in which there is mention of recovery of sum of Rs.133/- fromhis personal search.There is no mention of wearing of any wristwatch by the accused Vivek Gaur at the time of his arrest or taking hispersonal search. When at the time of his arrest, as per the case of theprosecution, the accused Vivek Gaur was wearing the wrist watchbelonging to the deceased, what prevented the IO from recording thesame in the personal search memo, has not been explained.

31.So, keeping in view the statement of PW13-Ramesh thathe found wrist watch on the dead body, and the fact that the IO hadfailed to record the recovery of wrist watch in the personal searchmemo of the accused Vivek Gaur, doubt is raised about the mannerand recovery of alleged wrist watch from the person of the accused.

32.Apart from the above articles of the deceased, it is also thecase of the prosecution that one black purse of the deceased was gotrecovered by accused Amit Sharma from pond.As per theprosecution case, on 03.10.2003 accused Amit Sharma took the policeparty to Tikri Khurd, Delhi and pointed towards pond in which thepurse of the deceased was thrown.Accused Amit Sharma threw astone in the middle of the pond to point out the place of throwing thepurse. One diver Abdul Sattar (PW4) retrieved the purse which wasseized vide memo Ex.PW4/A. PW4 had stated that he-on the pointingout of accused Amit Sharma, got recovered the purse containing somedocuments which was seized vide memo Ex.PW4/A.

33.The father of the deceased i.e. PW3 had not statedanything in his statements recorded under Section 161 Cr.P.C. beingEx.PW3/A and Ex.PW3/B regarding the description of the purse of thedeceased. In his statement Ex.PW3/B, though PW3 stated about themissing articles of his deceased son, but he had not stated that his sonwas having purse. So, in view of this position of the matter, we areof the view that the manner of recovery and seizure of purse of thedeceased as alleged is doubtful and it is not safe to rely upon the same.

34.In view of the totality of discussion made above, we are ofthe view that though the prosecution has been able to raise doubtsabout the involvement of the accused persons, it has failed to provebeyond reasonable doubt the guilt of the accused for the offencescharged against them. The respondents are entitled to the benefit ofdoubt.Accordingly, the judgment passed by the Court below isupheld.

35.Accordingly, the present appeal is dismissed.

P.S. TEJI, J

VIPIN SANGHI, J

JULY 04, 2018dd