Crl.A. 57/1994 Page 1 of 31

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 22nd

January, 2010

+ CRIMINAL APPEAL NO. 57 of 1994

Kashmira Singh & Ors. ..... Appellants

- versus –

The State .....Respondent

Advocates who appeared in this case:

For the Appellant : Mr. Anil Soni, amicus curiae.

For the Respondent : Mr. M.N. Dudeja, APP.

CORAM:

* HON'BLE MR. JUSTICE BADAR DURREZ AHMED

HON‟BLE MR. JUSTICE P.K.BHASIN

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

judgment?(Yes)

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

3. Whether the judgment should be reported in the digest?(Yes)

JUDGMENT

P.K.BHASIN, J:

This appeal was filed by three persons impugning the judgment

and order dated 12-01-1994 passed by the Court of an Additional

Sessions Judge whereby they were convicted for the offence

punishable under Section 302/34 IPC for committing the murder of

one Baljit Singh @ Bitta and were sentenced to undergo life

imprisonment and also to pay fine of Rs. 2000/- each with a

stipulation of six months further rigorous imprisonment in case of

default in payment of fine.

Crl.A. 57/1994 Page 2 of 31

2. Devoid of voluminous details, the prosecution case is that on

January 24, 1986 a dead body of one Baljit Singh s/o Sunder Singh

(PW-5) was found lying in a bunga (a temporary storage for fodder) in

village Jhangola, within the jurisdiction of Alipur police station,

belonging to one Sunder Singh. That dead body was noticed by Sunder

Singh‟s son, Kulwant Singh and on being informed about that, Sunder

Singh s/o Pathana, PW-7, went to Alipur police station and informed

the police about the discovery of a dead body in his bunga by his son

Kulwant Singh. That information was recorded as DD No. 4-A and its

copy was handed over to the SHO for enquiry. The SHO of that police

station, PW-18, Inspector Raj Mahender Singh, along with Sub-

Inspector Manohar, ASI Sita Ram and other staff as also the

informant Sunder Singh went to the bunga and found a dead body

lying there which was identified to be that of PW-5, Sunder Singh‟s 19

years old son Baljit Singh, who was also a resident of village Jhingola

and had reached the spot on being informed by Kulwant Singh about

the recovery of the dead body of his son. Some bleeding injuries were

noticed on different parts of the dead body during the inquest

proceedings. The skull was noticed to be broken. PW-5 gave his

statement to the police on the basis of which a case under Section

302/34 IPC was registered by the police at about 11.45 a.m. on 24th

January, 1986 vide FIR Ex.PW-2/C. Sunder Singh stated in that

statement, Ex.PW-4/A, that the previous evening at about 6 p.m. he

was present at his house along with his son Baljit Singh when Bishan

Crl.A. 57/1994 Page 3 of 31

s/o Kartar Singh, Kashmir s/o Uttam Singh and Kehri s/o Satnam

Singh, all of whom were residents of his village Jhangola and known

to him came and asked his son Meeta to come along for a stroll in the

fields. His son accompanied them but did not return home during the

night. On that day i.e. 24th January, at about 9 a.m. Kulwant s/o

Sunder Singh (PW-7) had come to his house and told him that the

body of Baljit was lying in their bunga (place for storing toora). Sunder

Singh expressed his suspicion that the above-named three persons

had, because of the enmity with them due to some on-going land

dispute killed his son and thrown the body inside the bunga.

3. On 25th January, 1986 post-mortem examination was

conducted on the dead body of the deceased by PW-11 Dr.

L.T.Ramani. In the post-mortem report Ex.PW-11/A the following

observations were made by the autopsy surgeon on external and

internal examination of the corpse:

“External injuries:

1. Abrasion 2 ½” x 1 ½” on the middle of forehead.

2. Abrasion 1 ½” x 1 1/2'” on the right cheek bone area;

3. Abrasion 1” x ½” on the upper lip in mid-line;

4. Y shaped laceration of 1 ½” x ¾” x scalp deep on the vault of the

skull in midline;

5. Compound fracture of left ulna bone at its lower third with bruising of

the postero lateral aspect and laceration ¾” x ½” x muscle deep.

There was massive blood clots under the bruise;

6. There was diffused bruising with swelling on the dorsum of leg hand;

7. Extensive bruising diffusely present on left arm, elbow and upper

part of forearm on the outer aspect 6” x 4” area with extra vacation

of blood under the bruises.

Crl.A. 57/1994 Page 4 of 31

8. Reddish bruise mark 4” x 1 ½” on the postero lateral aspect of right

fore-arm placed vertically;

9. Multiple bruises on both scapular areas at back of chest scattered in

various directions. Size of bruises varied from 3” to 6” x 1 ½”.

10. Multiple bruises on left buttock;

11. Bruise with abrasion 3” x 1” size on the back of right knee;

12. Bruise 4” x 1” on right leg lower part, on the outer aspect;

13. Multiple bruises and abrasions present on the front of both legs;

14. Swelling on the dorsum of left foot;

15. Bruise with abrasion 2” x 1” size present behind left ear, over

mastoid region. There was massive extra vacation of blood under

the bruise.

Internal examination revealed as follows:

There was haematoma in the scalp over left temporo parietal

region, skull bones were intact. There was thin sheet of subdural

haemorrhage on the left hemisphere. Neck structures were intact.

Trachea was normal. Ribs were intact. Lungs were pale and

bloodless. Right lung showed bruising. Heart was normal.

Stomach was full and contained digested food material. Other

abdominal organs were normal.”

All injuries were opined to be ante-mortem caused by blunt

weapon. Injuries over the skull and other injuries collectively were

found to be sufficient to cause death in the ordinary course of nature.

Cause of death was opined to be haemorrhagic shock and coma

resulting from the aforesaid injuries. Time since death from the start

of post-mortem, which was at about 12.15 p.m. on 25th January,

1986, was opined to be about 36 hours.

4. In view of the suspicion expressed by the father of the deceased

against three persons named in the first information report the police

arrested all three of them. During investigation PW-3 Harpal Singh

also claimed to have seen the deceased in the company of the

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accused in the night of 23rd January, 1986 coming from village

Jhingola and going towards Yamuna river. The witness also claimed to

have heard accused Bishan Singh telling the deceased at that time

that he (the deceased) was stealing their illicit liquor kept concealed

under the sand and so they had brought him from his house to settle

the score with him that day. (That was also alleged to be the motive

for the murder). PW-9 Gholu, who was living in a jhuggi on the

Yamuna bank near Jhangola village, claimed to have seen the

deceased being caught by the accused persons who were armed with

lathies at about 8 p.m. on 23rd January, 1986 at a place near his

jhuggi and at that time the accused were telling the deceased that

since he was stealing their liquor they would settle the score that day.

The investigating officer had moved applications before the concerned

Magistrate for recording statements of these two witnesses under

Section 164 Cr.P.C. but the Metropolitan Magistrate to whom the

application moved for that purpose was assigned (PW-12 Shri

H.S.Sharma) did not record their statements as provided under

Section 164 Cr.P.C. and instead read over to the witnesses their

statements under Section 161 Cr.P.C. and since witnesses stated

before the Magistrate that they had nothing more to say except

whatever they had stated in their statements under Section 161

Cr.P.C. the Magistrate passed separate orders on the applications of

the investigating officer that there was no need of recording their

statements u/s 164 Cr.P.C.

Crl.A. 57/1994 Page 6 of 31

5. After the completion of investigation charge-sheet was filed in

the Court of the concerned Metropolitan Magistrate. In due course the

case stood committed to the Court of Sessions where a charge under

Section 302/34 IPC was framed against the three accused persons,

namely, Kashmira Singh, Kehar Singh and Bishan Singh.

6. To prove its case the prosecution had examined as many as 18

witnesses during the trial. The accused were also examined under

Section 313 Cr.P.C. after the prosecution evidence was over. All the

three accused pleaded false implication but no evidence was adduced

in defence.

7. After examining the evidence by the prosecution, which was

only circumstantial in nature, the learned trial Court in its judgment

while convicting all the accused persons noticed certain lapses

committed not only by the investigating agency but also the grave

illegality, as noticed already, committed by the Metropolitan

Magistrate Shri H.S.Sharma(PW-12) while dealing with the

applications for recording the statements under Section 164 Cr.P.C. of

PWs 3 and 9. The relevant observations and findings of the learned

trial Judge are to be found in para nos. 25, 26, 29 and 35 of his

judgment which is being re-produced below:

“25………………….It is also not disputed that he died an unnatural

death at the hands of someone, who had inflicted such injuries

on his person, that resulted into death. It is also not disputed

that the dead body of said Baljit was recovered from Bunga of

PW7, who informed the police about the recovery of dead body.

Crl.A. 57/1994 Page 7 of 31

26.………………….However, it has already been discussed above

that the case is of “last seen” evidence and undisputedly by both

the sides, there is no article which might have been recovered

from the possession of the accused which was sealed by the

Investigating Officer, so as to show direct nexus of the accused

persons with the commission of the crime.

xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx

29………………………………… but in the present case, there is no eye-

witness at all. As aforesaid the present case entirely rests upon

the evidence of the deceased having been last seen in the

company of the accused persons and therefore, as has been

mentioned above neither the recovery of lathies from common

place, nor non-sending of articles like lathi for chemical analysis,

nor these articles being common in the village has got any

importance………..They are that the deceased Baljit died due to

multiple injuries on his body and his body was found at Bunga

and that according to PW5, the deceased had been called by

accused Kashmira and others to accompany them to the fields.

The learned counsel for the accused persons although has

vociferously contended that the prosecution has miserably failed

in establishing the motive because PW5 has categorically denied

about the existence of any motive with the accused persons

particularly with respect to any dispute of land. In this regard it

can be stated that where the prosecution relies purely upon the

circumstances then the motive plays an important role.

However, in the present case, the motive as alleged by the

prosecution regarding the land dispute has been categorically

denied by the PW5 and on this aspect, I find that the witness has

truly deposed. He had not fallen prey to the prosecution net of

the land dispute as the motive. What could be the motive, rather

seems to have cropped up on account of the cross-examination

of PW5 on behalf of the accused persons and in the presence of

this cross-examination, the statement of PW5 that his son was

called by accused persons to come to the fields, achieve greater

significance. No doubt that PW5 has introduced in his statement

the fact that his son was called to the fields, so that he may not

be arrested by the police, which is against statement Ex. PW4/A,

his statement is to be scrutinized in view of what he has stated in

the statement as a whole.

xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx

35. The circumstances of the case would show that the other

evidence adduced by the prosecution in the shape of disclosure

statement and the recovery is not clinching at all, whereas, the

clinching evidence is that of PW-5, who had last seen the victim

in the company of the accused persona till he died. It is not a

case of separate pieces of circumstantial evidence relating to

the movement of the accused or of the deceased. In the absence

of any explanation on behalf of the accused as to where the

deceased was left alive and safe after he left the house in their

company, it would in-fallibly indict the accused persons and none

else. Consequently, not only that the statement of PW5 is

believable but also in view of the unchallenged facts about the

liquor complicity, the statement becomes clinching.”

Crl.A. 57/1994 Page 8 of 31

8. From these extracts of the impugned judgment it becomes clear

that the accused have been convicted only on the evidence of „last

seen‟ and failure of the accused to explain as to when they parted the

company of the deceased and where and under what circumstances.

Feeling aggrieved by the judgment of the trial Court convicting them

for the murder of Baljit Singh the three accused persons filed a joint

appeal. During the pendency of the appeal two accused-appellants,

namely, appellant no.1 Kashmir Singh @ Kashmira and appellant no.2

Kehar Singh @ Kehri died and so the appeal qua them stood abated.

Thus, now we are to decide the fate of accused-appellant Bishan

Singh only.

9. On behalf the sole surviving accused-appellant arguments were

advanced by Shri Anil Soni, amicus curiae, and for the State its

Additional Public Prosecutor Shri M.N.Dudeja supported the trial

Court‟s decision.

10. The prosecution had relied upon certain circumstances during

the course of its evidence before the trial Court to establish the guilt

of the accused persons. First circumstance was that the accused

persons had the motive to kill the deceased since there was some

land dispute between the accused and the father of the deceased. The

deceased was also stealing the illicit liquor manufactured by the

accused persons. It is the common case of the prosecution and the

accused that the deceased as well as the accused persons were

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bootleggers. The deceased as well as accused Bishan Singh were

registered with the police as BCs (bad characters) and arrest warrants

had been issued against the deceased by some Court in Rajasthan.

Second circumstance was that the accused had taken the deceased

with them from his house in the evening of 23rd January, 1986. Third

circumstance was that the accused and the deceased were seen at

about 7.45 p.m. going towards Yamuna river by PW-3 Harpal Singh

and then at about 8 p.m. also the deceased was seen alive in the

company of the accused persons by PW-9 at the Yamuna bela. The

fourth circumstance relied upon by the prosecution was that in the

morning of 24th January,1986 the deceased was found lying dead in a

bunga belonging to PW-7 Sunder Singh of village Jhingola. Fifth

circumstance pressed into service by the prosecution was that the

death of the deceased on post-mortem-examination found to be

homicidal. Last circumstance was that accused Bishan Singh and

Kehar Singh had got recovered one lathi each which the prosecution

considered to be weapons of offence.

11. The trial Court after examining the evidence adduced by the

prosecution has found that the first circumstance of motive and the

third circumstance of the deceased having been seen in the company

of the accused persons at between 7.45 p.m. and 8 p.m. on 23rd

January, 1986 were not established. Evidence of the recoveries of

lathis was also rejected as being of no use for the prosecution. So, the

Crl.A. 57/1994 Page 10 of 31

learned amicus curiae did not have to say anything regarding these

two circumstances which the trial Court itself had ignored from

consideration while finding the accused guilty.

12. Nothing was argued by the learned amicus curiae for the

appellant even on the point of recovery of the dead body of the

deceased in the morning on 24th January, 1986. About that recovery

there is in any case reliable evidence of PW-5 Sunder Singh, the

father of the deceased, PW-7 whose name is also Sunder Singh, who

had informed the police about the dead body of the deceased having

been found by his son in his (PW-7‟s) bunga in his field which appears

to be on the outskirts of village Jhangola near Yamuna river, PW-8

Harbans Singh, brother of the deceased, who had also reached the

bunga on getting the information about the recovery of the corpse of

his brother and the police witnesses, PWs 10, 13, 17 and 18. The

learned amicus curiae also did not dispute the fact that the deceased

died a homicidal death. That fact is also even otherwise duly

established from the evidence of the autopsy surgeon. His

observations regarding the injuries noticed by him on the dead body

of the deceased and the cause of death have already been noticed by

us. As per the opinion of the autopsy surgeon the death of the

deceased had taken place 36 hours before the post-mortem. So the

death occurred around mid-night of 23rd January, 1986. So, the

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findings of the trial Court in respect of circumstances no. 5 and 6 are

re-affirmed by us.

13. Mr. Soni, however, submitted that the only piece of evidence

relied upon by the trial Court for convicting the three accused is the

evidence of the accused persons and the deceased having been taken

from his house by the accused persons in the evening of 23rd January,

1986 but that circumstance by itself was not sufficient to record

conviction. Mr. Dudeja, on the other hand argued that the trial Court

has wrongly held that the circumstance of motive has not been

established when in fact it has been duly established from the

evidence of PWs 3 and 5 whose evidence on the motive aspect of the

prosecution case has been wrongly rejected. Mr. Dudeja also

submitted that this Court, being the appellate Court, can make a fresh

and independent analysis of the evidence and arrive at a different

conclusion on the circumstance of motive as well as the deceased

having been seen alive in the company of the accused persons at

about 7.45 p.m. also on 23rd January, as was also deposed by PW-3

but not believed by the trial Judge.

14. So, now we proceed to examine the evidence relating to the

circumstance of „last-seen‟ which has been found by the trial Court to

have been duly established and by itself sufficient to hold the accused

persons guilty and the grounds for rejecting that evidence put forth by

the amicus curiae and evidence on other circumstances relied upon

Crl.A. 57/1994 Page 12 of 31

by the learned APP Mr. Dudeja. PW-5, Sunder Singh is the father of

the deceased and the complainant of the case also on whose

statement FIR was registered. He is the star prosecution witness and

the learned trial Judge has convicted all the three accused persons

relying on the evidence of this witness only. The relevant part of his

examination-in-chief is being re-produced below verbatim:

“Baljit deceased was my son. He was also known by the name of

Meeta and Jeeta. At the time of incident he was aged about 18-19

years. I know all the three accused present in Court. They are also

the residents of the same village. About 1 ½ years back, at about

6 P.M. I was at my house. Deceased was also there. All the three

accused present in court (correctly identified) came to my house.

Kashmira accused told my said son that should accompany them to

the fields so that police persons may not arrest him. My son had

left along with the accused persons at about 6 PM. He had not

come back on that night. Kulwant son of Sunder Singh told me on

the next day at 7/8 AM that my above son was lying dead in his

bonga (place for storing toora). Sunder Singh father of Kulwant had

thereafter gone to PS to report the matter. I had gone to the spot

and found dead body of my son lying there. 100-150 villagers also

had accompanied me to the spot. Deceased was having injuries on

his head, arm, waist, etc. and blood was also there. 5 sticks arhar

were lying at a short distance near the dead body which were blood

stained. Clothes and dabbi of tambakoo were also lying near the

dead body. Police had also come at the spot and my statement was

recorded by them. Ex.PW4/A is the same statement which is

thumb marked and initialed by me, at point A. Deceased used to

deal in business of moolis. Mark A is photograph of deceased. I

simply know how to sign, otherwise I am illiterate. Prior to the

incident relations in between deceased and accused persons were

cordial. Dead body was taken to police station by police. Police also

visited bank of Jamuna, where at two places blood was found.

There was distance of about 10 paces in between both the places

where blood was found lying. Police had lifted blood and controlled

earth from both the said places. These were kept in separate

bottles and thereafter sealed. 20-25 villagers were also present

when the police had lifted the blood and earth from the aforesaid

places and sealed them. Clothes and the dibbi were also taken into

possession by police from the place where dead body was lying.

Those clothes belonged to the deceased. The said articles were

kept in separate parcels and thereafter sealed at the spot. Blood

and the earth were also lifted from the spot by the police, which

were also sealed. Memo Ex.PW4/B was prepared by the police at

the spot. It is thumb marked and initialed by me. Along with me,

my both the sons, Harbans, Jehangir, Jit Singh had gone to police

station. I saw dead body of deceased. Police again made inquiries

from me there. Postmortem was conducted on 24th and dead body

Crl.A. 57/1994 Page 13 of 31

was delivered to me on 25th. One cycle and two lathis were also

recovered from moonga by police in the evening on the following

day of incident. Sticks and cycle were lying at a distance of 4-5

yards concealed in the crops. So many persons were then with

police.”

15. Statement of PW-5 in his examination-in-chief to the effect that

his son Baljeet Singh had gone from his house with the accused

persons in the evening before the day of the recovery of his dead body

had remained totally unchallenged in cross-examination on behalf of

the accused persons and so has been relied upon by the learned trial

Judge. In one case decided by the Supreme Court “State of U.P. vs.

Satish” reported as AIR 2005 SC 1000 the witness on the point of last-

seen was not cross-examined by the defence counsel but still the

Courts below ignored his evidence while acquitting the accused. The

Supreme Court, however, after noticing the absence of cross-

examination of the witness of last-seen circumstance on the point of

the deceased having been seen by him with the accused before the

recovery of the dead body of the deceased accepted the unchallenged

evidence of that witness. No doubt that PW-5 did not specifically state

that his son had gone from the house alongwith the three accused

persons on 23rd January, 1986 but it is more than clear that he meant

to convey that only and that is evident from his statement that it was

in the evening of the day before the recovery of the dead body of his

son. There is ample evidence adduced by the prosecution to show that

the dead body of the deceased was recovered on the morning of 24th

January, 1986. Even the accused persons had clearly understood that

Crl.A. 57/1994 Page 14 of 31

it was on 23rd January only that the deceased had, according to PW-5,

left his house in the company of the three accused persons and that is

evident from their memorandum of appeal. Since this part of the

testimony of this witness had remained unchallenged in cross-

examination the learned amicus curiae Mr.Anil Soni rightly did not

make any serious argument on this aspect of the prosecution case.

His main argument put forth with vehemence was that the trial Court

had seriously erred in convicting the accused solely on the basis of the

circumstance of the deceased having left his house alongwith the

three accused persons in the evening of 23rd January, 1986. Reliance

was placed upon one judgment of the Supreme Court reported in

(2008) 3 Supreme Court Cases 100 “K.T. Palanisamy v. State of Tamil Nadu”.

That, however, is a different matter whether the accused could be

convicted or not on the basis of evidence of „last-seen‟ alone. Thus,

we have also no hesitation in accepting the evidence of PW-5 that the

deceased had left his house alongwith the three accused persons in

the evening of 23rd January, 1986.

16. However, the statement of PW-5 that the accused had taken

the deceased from his house by telling him that the police might not

arrest him cannot be accepted since that was not claimed by him

before the police where he had claimed that there some enmity with

the accused due to some land dispute. That stand he gave up during

evidence. It has come in the cross-examination of this witness that

Crl.A. 57/1994 Page 15 of 31

the deceased was a bootlegger and was involved in some cases under

the Excise Act besides other offences. The witness also admitted that

arrest warrants had also been issued against the deceased by some

Court in Rajasthan. It was suggested to the witness that the deceased

and the accused were doing the business of illicit liquor together

which the witness admitted to be correct. It was suggested to the

investigating officer (PW-18) in cross-examination that the deceased

was registered as BC (bad character) at the police station Ali Pur. PW-

18 had then also stated that the accused were arrested several times

and accused Bishan Singh was also a BC. In these circumstances

when the accused and the deceased were partners in the business of

illicit liquor the statement of PW-5 that the accused had told the

deceased to come with them so that police might not arrest him

appears to have been introduced by the prosecution in its case

through the evidence of PW-5 to make it look like a case of „taking

away‟ (abduction) of the deceased by the accused persons by playing

deceit so as to shift the burden upon the shoulders of the accused to

explain how the deceased died within a few hours after they took him

from his house. We are, however, of the view that the prosecution

case that the accused was taken away from his house by the accused

on the said pretext, which has been accepted by the trial Court,

cannot be accepted. So, we affirm the findings of the trial Court in

respect of the first circumstance only to the extent that in the evening

on 23rd January,1986 the deceased was taken from his house by the

accused.

Crl.A. 57/1994 Page 16 of 31

17. The prosecution had examined PW-3 Harpal Singh to establish

that the deceased was seen alive in the company of the accused

persons at about 7.45 p.m. on 23rd January,1986 and at that time

the accused were saying to him that he was stealing their illicit liquor

and so they would settle the score with him that day, which was

another motive pressed into service by the prosecution. PW-3 was

residing in a jhuggi on the bank of Yamuna river near Jhangola village.

This witness did not support the prosecution case in examination-in-

chief. He even denied that he knew the deceased and the accused

persons. So, he had to be cross-examined by the public prosecutor

with reference to his police statement. In that cross-examination he

admitted that on 23rd January, 1986 at about 7.45 p.m. when he was

going from his jhuggi to Jhangola village he had seen the accused

persons and the deceased coming from the side of village Jhangola

and going towards Yamuna and at that time accused Bishan Singh

had told the deceased that he was stealing their liquor and lehan

concealed in the sand. When cross-examined by the defence counsel

this witness accepted that he knew the deceased and also stated that

he was going to village Jhangola to purchase house-hold items from

the shop of PW-7. The trial Court, however, did not consider his

statement made during the cross-examination by the public

prosecutor to be reliable and so ignored the same. According to the

trial Court, this witness was changing his version from stage to stage.

Crl.A. 57/1994 Page 17 of 31

There is no doubt, as was the submission of the learned APP Mr.

Dudeja, that just because a prosecution witness is cross-examined by

the prosecutor with the leave of the Court his entire evidence for that

reason alone does not get washed off the record. Evidence of such a

witness, if it finds corroboration from other evidence, can also be

relied upon. However, there is no corroboration to the statement of

PW-3 in the present case to the effect that the accused and the

deceased were together at about 7.45 p.m. on 23rd January, 1986.

18. The prosecution had sought to establish the circumstance of

last-seen from the evidence of PW-9 Gholu also. As noticed already,

he had during the investigation claimed to have seen the accused

persons catching hold of the deceased on the night of 23rd January,

1986 at about 8 p.m. but this witness also did not support the

prosecution case and was cross-examined by the public prosecutor.

Even during that cross-examination this witness did not support the

prosecution case on any aspect and, therefore, as far as this witness

is concerned, the prosecution does not get any benefit at all.

19. Now, we come to the evidence adduced by the prosecution on

the motive aspect of its case. As noticed already, in the report to the

police PW-5 Sunder Singh, father of the deceased, had claimed that

there was enmity between his family and the accused persons over

some land dispute. This witness, however, did not claim so during his

Crl.A. 57/1994 Page 18 of 31

evidence and so was cross-examined by the Additional Public

Prosecutor since on the circumstance of motive he had not supported

the prosecution and contrary to what he had claimed before the police

he claimed in evidence that relations between his son and the

accused were cordial. However, even during that cross-examination

PW-5 did not admit that he had any kind of enmity with the accused

persons. His categorical statement was that there was no enmity with

the accused persons. The other motive, as spoken to by PW-3, that

the deceased, according to the accused persons, was stealing the

illicit liquor manufactured by the accused persons and kept concealed

under the sand, also cannot be said to have been established beyond

reasonable doubt, since we are not inclined to accept the testimony of

PW-3 on this aspect made during his cross-examination by the public

prosecutor without corroboration and there is no corroboration to that

part of his statement also. As far as PW-9 Gholu is concerned he had

totally turned hostile and no part of his testimony can be utilized by

the prosecution. So, on the motive aspect of the prosecution case,

evidence of PWs 3 and 9 has been rightly excluded from

consideration by the learned trial Court.

20. We have already observed that during the investigation

statements of PWs 3 and 9 were to be recorded under Section 164

Cr.P.C. but the Magistrate (PW-12 Shri H.S. Sharma) had dispensed

with the recording of their statements. It was in the context of the

Crl.A. 57/1994 Page 19 of 31

statements of PWs 3 and 9 that the trial judge had noticed the

blunder committed by the Magistrate. Before we notice what the trial

Judge observed about the blunder committed by the Magistrate his

testimony also needs to be noticed which itself would also show the

mistake committed by him. This is what PW-12 Shri H.S. Sharma

deposed:

“On 18-2-86 while I was working as Metropolitan Magistrate, Delhi,

an application was put up before me by HC Om Parkash, which

application is Ex. PW-12/A, for getting the statement of Gholu PW

recorded u/s 164 Cr.P.C. Gholu PW was also produced before me

for the said purpose. Vide endorsement Ex. PW-12/B I read over

statement of this witness recorded by police u/s 161 Cr.P.C. to him.

This statement is Ex.PW-9/A. I did not record his statement u/s 164

Cr.P.C. I signed statement of Gholu u/s 161 Cr.P.C. Ex. PW-9/A at

point A. Gholu had admitted his having made Ex. PW-9/A to police

and it to be correct and he did not want anything else to say that is

why I dispensed with his statement u/s 164 Cr.P.C.

On 25.2.86 application Ex. PW-12/C was moved before me by

Constable Virender Singh for recording statement of Harpal Singh

PW u/s 164 Cr.P.C. As IO was not present I directed that file be put

up before me on 26.2.86 and IO to appear on the said date. On

26.2.86 Harpal s/o Ram Sarup PW was present. ASI Sita Ram IO

was also present. IO was directed to stay outside court room. I had

read over statement of Harpal PW recorded u/s 161 Cr.P.C. to him

and he admitted having made the said entire statement correctly.

His statement is Ex. PW-3/A. I signed the same at point A. My

endorsement to that effect on the application Ex. PW12/C is Ex. PW-

12/D. Since witness had admitted his entire statement u/s 161

Cr.P.C. I did not record his statement u/s 164 Cr. P.C.”

21. The observations of the trial Judge in respect of the illegality

committed by the Magistrate are to be found in para no. 36 of the

impugned judgment and the same are being re-produced below:

“36. As has been mentioned above the prosecution also made a

futile and weak attempt to procure some kind of corroboration from

the statement of PW3 Harpal and PW9 Gholu who were also got

examined u/s 164 Cr.P.C. However, I am constrained to express my

anguish over the bizarre manner in which the learned Magistrate Sh.

H.S. Sharma, as he was functioning at the relevant time, has

recorded the statement u/s 164 Cr.P.C. It has already been noticed

that both the witnesses were read over their respective statements

as recorded by police u/s 161 Cr.P.C. and while deposing before this

Crl.A. 57/1994 Page 20 of 31

court the officer has testified that he so read over the statement and

when the two witnesses admitted having made those statements, he

made his endorsement. While acting as such, Sh. H.S. Sharma, has

completely ignored the established norms and enacted procedure

u/s 164 of the Code of Criminal Procedure…………………………………….

……………the learned Magistrate seems to have devised a novel way

of recording the statement u/s 164 Cr.P.C. vide which the establish

procedure has been laid to rest in the graveyard. Therefore, the

statement Ex. PW9/A as well as Ex. PW3/A of Gholu and Harpal

recorded u/s 164 Cr.P.C. is absolutely a rotten piece of evidence

which has no value in the eyes of law. It is really astonishing as to

what made the officer to record the statement in that fashion which

is absolutely alien to codified law. It can only be best hoped that

such kind of thing do not recur.”

22. We are of the view that if the statements of PWs 3 and 9 had

been recorded by PW-12 Shri H.S.Sharma and proved during the

evidence the same could have been used for corroborating the

testimony of PW-3 at least who had supported the prosecution when

cross-examined by the prosecutor. So, by a grave mistake committed

by the Magistrate, PW-12, Shri H.S. Sharma in not recording the

statements of two very material witnesses for the reason that the

witnesses had stated before him that except for whatever they had

said in their statements under Section 161 Cr.P.C. which were read

over to them by the Magistrate they had nothing more to say, the

prosecution has been deprived of the benefit of corroborative

evidence in respect of PW-3. Normally, certain faults of the

investigating agency make the prosecution case weak but here the

Magistrate‟s fault to some extent has weakened the prosecution case.

23. We are in agreement with the conclusion of the trial Court

rejecting the evidence of recoveries of lathis which was not even

Crl.A. 57/1994 Page 21 of 31

impugned by the learned APP. Now, the question to be considered is

whether the learned trial Court was justified in convicting the accused

only on the evidence of PW-5 that the deceased had left his house in

the company of the three accused persons in the evening of 23rd

January, 1986 and the failure of the accused persons to explain as to

when and where they had left the company of the deceased.

24. As regards the circumstance of „last-seen‟ the Hon'ble

Supreme Court in the case of “State of Goa v. Sanjay Thakran and Anr.”,

(2007) 3 SCC 755 has held:

“26. From the principle laid down by this Court, the

circumstance of last seen together would normally be taken into

consideration for finding the accused guilty of the offence charged

with when it is established by the prosecution that the time gap

between the point of time when the accused and the deceased were

found together alive and when the deceased was found dead is so

small that possibility of any other person being with the deceased

could completely be ruled out. The time gap between the accused

persons seen in the company of the deceased and the detection of

the crime would be a material consideration for appreciation of the

evidence and placing reliance on it as a circumstance against the

accused. But, in all cases, it cannot be said that the evidence of last

seen together is to be rejected merely because the time gap

between the accused persons and the deceased last seen together

and the crime coming to light is after (sic of) a considerable long

duration. There can be no fixed or straitjacket formula for the

duration of time gap in this regard and it would depend upon the

evidence led by the prosecution to remove the possibility of any

other person meeting the deceased in the intervening period, that is

to say, if the prosecution is able to lead such an evidence that

likelihood of any person other than the accused, being the author of

the crime, becomes impossible, then the evidence of circumstance

of last seen together, although there is long duration of time, can be

considered as one of the circumstances in the chain of

circumstances to prove the guilt against such accused persons……….

27…………………..We have also not found any other link in the chain of

circumstances to conclusively establish that A-1 murdered D-1 or A-

2 played any role in assisting him to murder D-1. Even if we believe

the evidence of P.W.-11 that he saw D-1 in the company of A-1

walking towards the beach and thereafter saw A-1 returning alone

after 30 to 45 minutes, there has been a time gap of about 2 1/4

Crl.A. 57/1994 Page 22 of 31

hours when A-1 and D-1 were last seen together and when the dead

body of D-1 was found at around 00.30 a.m. at the Benaulim Beach.

No evidence was led by the prosecution to prove the fact that there

was no possibility of any other person approaching D-1 on the beach

which is a public place, during the intervening period when A-1 was

last seen with the deceased and when the crime was detected.”

(emphasis supplied)

25. Similarly, in the case of “State of U.P. v. Satish”, 2005 Crl.L.J. 428

also the Hon'ble Supreme Court has explained the principle of "last

seen" evidence as under:

“16. The last-seen theory comes into play where the time-gap

between the point of time when the accused and the deceased were

last seen alive and when the deceased is found dead is so small that

possibility of any person other than the accused being the author of

the crime becomes impossible. It would be difficult in some cases to

positively establish that the deceased was last seen with the accused

when there is a long gap and possibility of other persons coming in

between exists. In the absence of any other positive evidence to

conclude that the accused and the deceased were last seen together,

it would be hazardous to come to a conclusion of guilt in those cases.

17. Applying the above principle to the present case, it is obvious

that the prosecution has not produced an iota of evidence to prove

that the deceased was last seen with the appellants in U.P. There is

gap in both the place and time of the last seen. Therefore, the

possibility of someone else stepping In between the time of last seen

and the time of discovery of the body, between the place of last seen

and place of discovery of the body, cannot be ruled out…………………” (Emphasis supplied)

26. Their lordships of the Supreme Court in “Mohibur Rahman and

another v. State of Assam”, (2002) 6 Supreme Court Cases 715, also have laid

down the parameters, as to under what circumstances, on the basis

of 'last seen' evidence, an accused can be convicted. After analyzing

evidence, in that case, it was observed thus:-

"The circumstance of last seen together does not by itself and

necessarily lead to the inference that it was the accused who

committed the crime. There must be something more establishing

connectivity between the accused and the crime. There may be

cases where, on account of close proximity of place and time

between the event of the accused having been last seen with the

deceased and the factum of death, a rational mind may be

Crl.A. 57/1994 Page 23 of 31

persuaded to reach an irresistible conclusion that either the accused

should explain how and in what circumstances the victim suffered

the death or should own the liability for the homicide."

27. In the present case the deceased left his house in the evening

of 23rd January, 1986 at about 6 p.m. along with the accused persons,

as deposed by the father of the deceased and which statement of his

has been accepted by the trial Court as also by us to be reliable, and

his dead body was found next morning at about 8 a.m., as stated by

PW-7 in cross-examination. As per the opinion of the autopsy surgeon

the death of the deceased had occurred around midnight on 23rd

January, 1986. The time gap between the „last- seen‟ point and the

death of the deceased thus was about six hours. The prosecution has

not ruled out the possibility of somebody else meeting the deceased

after he had left his house during that period of six hours. The

deceased was admittedly a bootlegger and was wanted in some

criminal case also in Rajasthan. These kind of people in the business

of illicit liquor can have some enemies also who may have some

grudge against them including business rivalry and so want to get rid

of them. The father of the deceased in his cross-examination on

behalf of the accused had also stated that sometimes his son used to

stay away from his home because of arrest warrants issued against

him. So, there was nothing unusual for the deceased having not come

back home on the fateful night. As far as the accused persons in the

present case are concerned, as noticed already, the father of the

Crl.A. 57/1994 Page 24 of 31

deceased has categorically claimed that their relations with the

accused were quite cordial and the learned trial Judge has rightly

observed that if there was any kind of enmity between the accused

and the deceased he would not have gone with the accused on their

asking. In case of direct evidence the failure to prove motive of the

crime is not fatal to the prosecution. But, in a case based on

circumstantial evidence, since motive forms one of the strongest links

in the chain of circumstances against the accused, its absence will

certainly weaken if not destroy the case of the prosecution. The

prosecution has also not been able to show any proximity between

the place of residence of the deceased and the place of recovery of

his dead body. It is significant to note that the dead body of the

deceased was recovered from a place which, as per the prosecution

case itself, belonged to PW-7, Sunder Singh and none of the accused

had anything to do with that place. Thus the absence of proximity of

time between the deceased having left his house in the company of

the accused and the recovery of his dead body as well as the absence

of proximity between the place of residence of the deceased and the

place of the recovery of his dead body point towards the innocence of

the accused.

28. In any event, the Supreme Court has by now held in a number

of judgments that the „last-seen‟ evidence is by itself not sufficient to

convict an accused. From the judgments of the Supreme Court

already noticed by us it is clear that whenever prosecution relies upon

Crl.A. 57/1994 Page 25 of 31

circumstantial evidence including the circumstance of „last-seen‟, that

circumstance has been considered as one of the circumstances in the

chain of circumstances. We now refer to some of the judgements of

the Supreme Court where in the chain of circumstances the only

circumstance of „last-seen‟ was found to have been established by the

prosecution but that circumstance was not held to be sufficient by

itself to base conviction. Way back in the year 1991, in the case of

“Indrajeet Singh vs. State of Punjab”, AIR 1991 SC 1674, the Supreme Court

dealing with some circumstances relied upon by the prosecution

including the circumstance of „last-seen‟ held as under:

“The prosecution examined P.Ws. 1 to 6. The circumstances relied

upon by the prosecution and by both the Courts below are as

follows:

(1) The appellants had taken away the deceased from his house and

thereafter he was never seen alive. (2) The dead body of the

deceased was found on the bank of canal and which was identified

as that of the deceased. (3) The denial of the appellants that they

had never taken away the deceased for bird-shooting. (4) The

suggestion that why not the appellants could be falsely implicated in

the case.

2. After giving our careful consideration, we are unable to agree with

the Courts below. These circumstances are not sufficient to

establish guilt of the accused. It is well settled that in a case

pending on circumstantial evidence, the prosecution must establish

all the circumstances by independent evidence and the

circumstances so established must form a complete chain in proof

of guilt of the accused beyond all reasonable doubts. The

circumstances so proved must also be consistent only with the guilt

of the accused. Among the circumstances relied upon by the

prosecution, in the light of these principles we find that except the

circumstance No. 1, the other circumstances are not incriminating.

In number of cases it has been held that the only circumstance

namely that the deceased was last seen in the company of the

accused by itself is not sufficient to establish the guilt of the

accused. It is no doubt true that the deceased's death was

homicidal but since there is no direct witness connecting any of the

appellants with the crime we should fall back on the circumstantial

Crl.A. 57/1994 Page 26 of 31

evidence and we are of the view that circumstances relied upon by

the prosecution are hardly sufficient to establish the guilt of the

accused. The circumstance, i.e. the absence of enmity between the

accused and the deceased and the witness would also show that the

accused also had no enmity against the deceased. Therefore, this

circumstance is neutral. However, now coming to the recovery of the

gun, the High Court has acquitted him of that charge. The only

relevant circumstance as pointed above is that the appellants and

the deceased left the house together in a friendly manner for bird-

shooting. It is needless to say that no conviction can be passed on

this sole circumstance.” (emphasis laid)

29. In “ Anant Bhujangrao Kulkarni vs State of Maharashtra”, AIR 1993 SC

110 the Supreme Court observed as under:

“12. The only circumstances that have been found established are

that the deceased was last seen alive in the company of the

appellant on October 13, 1975 at about 6 p.m. and that the dead

body of the deceased was found in the Ladni near the residential

portion of the appellant in Pargaonkar's wada. The said two

circumstances, in our opinion, cannot be said to be inconsistent with

the innocence of the appellant and on the basis of these two

circumstances alone, it cannot be held that the appellant was a

party to the murder of the deceased. The conviction of the appellant

for the offence under Section 302 read with Section 34 IPC cannot,

therefore, be upheld.” (emphasis supplied)

Thus, even though the dead body of the deceased in this case

was found from a place near the house of the accused with whom the

deceased was last seen alive the Supreme Court did not consider that

circumstance to be sufficient to convict the accused for murder. Here

in the present case, the dead body of the deceased was found from a

place which did not belong to anyone of the accused but belonged to

PW-7 Sunder Singh and even the distance between the house oif the

deceased and that place has not been proved to show any proximity

between the two places.

Crl.A. 57/1994 Page 27 of 31

30. In the case of “Arjun Marik and Ors. v. State of Bihar”, 1994 Supp. (2)

SCC 372, the Hon'ble Supreme Court had held as under:

"The only circumstance of last seen will not complete the chain of

circumstances to record the finding that it is consistent only with the

hypothesis of the guilt of the accused and, therefore, no conviction

on that basis alone can be founded."

31. In “Ashok Yadav And Ors. vs State of M.P.” 1996 IX AD SC 446, the

Supreme Court even after affirming the conviction of the accused for

the offence of kidnapping acquitted the accused of the offence of

murder holding that evidence of „last-seen‟ was not sufficient to

convict the accused of the offence of murder also. This is how the

facts were noticed and the conclusions arrived at:

“10. Ram Bharose Vajpayee, PW-1, deposed that he saw the

appellants alongwith the deceased on cycle near Katora Tal. Rati

Ram, PW. 7, also deposed to having seen the deceased with the

appellants near Katora Tal. Both the courts have relied upon the

statements of P.W. 1 and P.W. 7 in that behalf after giving cogent

reasons. So far as PW 5 is concerned, he did not depose that he had

seen the deceased with the appellant but, according to him he had

seen the appellants outside the Chhatri on the fateful day. The

evidence of PW 1, PW 5 and PW 7 has been rightly relied upon by

the courts below but the same can only go to show that the

appellants had kidnapped the deceased on the fateful day and

nothing more than that. The evidence of these witnesses even if

accepted in their totality does not go to connect the appellants with

the crime of murder. Indeed Avdhesh Kumar's death was homicidal

in nature but unless the prosecution can establish beyond a

reasonable doubt that the appellants and the appellants alone had

committed the murder, their conviction for an offence under Section

302 IPC cannot be sustained. The evidence led by the prosecution

about "last seen together" cannot be said to be consistent only with

the hypothesis of the guilt of the appellants as regards the offence

of murder and incapable of being explained on any other hypothesis.

In our opinion the evidence led by the prosecution is of a conclusive

nature so-far as kidnapping of the deceased is concerned but is

inconclusive so far as the offence of murder is concerned. The chain

of evidence is not so complete as to leave no doubt about the

conclusion that the appellants also committed the murder of

Avadhesh. May be, they did but that is not enough. The prosecution

is obliged to establish that in all human probability the accused

alone had committed the murder. This, the prosecution has failed to

Crl.A. 57/1994 Page 28 of 31

prove in this case. The conviction of the appellants for the offence

under Section 302 IPC, therefore, cannot be sustained and is hereby

set aside……………………………………….”

(emphasis supplied)

32. In “Shera Singh vs State of Punjab”, 1996(10) SCC 330 it was

observed by the Apex Court as under:

“…………In the instant case, the only evidence other than the

deposition of the said approver, is the deposition of PW.16, the

brother of the deceased who only stated that the deceased was seen

by the said brother near the canal bridge of village Midha at about

9.00 P.M. on 28th July, 1982 and he had gone to the western side

alongwith the appellant Shera Singh. As the names of other two

accused were not mentioned by PW. 16, the High Court gave them

the benefit of doubt and acquitted them but since the name of the

appellant was mentioned by PW 16 as the person with whom the

deceased was last seen together, the conviction against the

appellant has been upheld by the High Court........................................

2. In our view, such finding of the High Court is not justified. Simply

on the basis of evidence of PW 16 that the deceased was last seen in

the company of the appellant, the appellant is not liable to be

convicted for the offence of murder……………….................................”

33. Then in the case of “Jaswant Gir v. State of Punjab” reported in

(2005) 12 SCC 438 the Supreme Court has dealt with the „last-seen‟

evidence as under:

“…………….the main incriminating fact relied upon is that the

deceased was last seen by PW14 in the company of the appellant

and the other accused and that he was given a lift in the vehicle

belonging to the appellant. In order to establish that the vehicle

belonged to or was in de facto possession of the appellant, some

evidence has been let in. The "last seen" evidence is sought to be

established by the testimony of PW14………………………….. Without

probing further into the correctness of the "last seen" version

emanating from PW14's evidence, even assuming that the deceased

did accompany the accused in their vehicle, this circumstance by

itself does not lead to the irresistible conclusion that the appellant

and his companion had killed him and thrown the dead body in the

culvert. It cannot fact presumed that the appellant and his

companions were responsible for the murder, though grave suspicion

arises against the accused. There is considerable time gap between

the deceased boarding the vehicle of the appellant and the time

when PW11 found the dead body. In the absence of any other links

Crl.A. 57/1994 Page 29 of 31

in the chain of circumstantial evidence it is not possible to convict

the appellant solely on the basis of the "last seen" evidence, even if

the version of PW14 in this regard is believed…………………………………”

(emphasis supplied)

34. Thus, based on the solitary circumstance of the deceased

having left his house in the company of the accused persons in the

evening of 23rd January, 2006 no chain of circumstances can be said

to have been established by the prosecution from which the only

conclusion could be arrived at was that the murder of the deceased

was committed by the accused. In these circumstances, failure of the

accused to offer any explanation could not be used as a circumstance

against the accused, as has been done by the learned trial Judge.

Unless a chain of circumstances is established from which the

prosecution can be said to have discharged its burden of proof of

proving the guilt of the accused, which always rests on it, the absence

of explanation by an accused cannot be used as a circumstance

against the accused. Section 106 of the Evidence Act cannot be

utilised to cast the burden on the accused to prove his innocence by

relieving the prosecution of its burden of proof. The prosecution has to

stand on its own legs. Section 106 is intended to meet certain

exceptional cases in which it would be impossible or extremely

difficult for the prosecution to prove the fact which is especially within

the knowledge of the accused and the knowledge of that fact is not

available to the prosecution. But before the burden is shifted to the

accused, the prosecution has to establish strong prima facie case.

Crl.A. 57/1994 Page 30 of 31

Thereafter, if the accused fails to account for or if gives some false

explanation, the failure to account for or the false explanation given

by the accused shall be considered by the court for its final verdict.

The Supreme Court has also observed in “Sawat Das vs State of Bihar”,

AIR 1974 SC 778 that Section 106 of the Evidence Act does not

absolve the prosecution from the duty of discharging its primary

burden of proving its case beyond reasonable doubt and it is only

when the prosecution has led evidence which if believed will lead to

conviction, or, which makes out prima facie case that the question

arises of considering fact of which the burden of proof may be upon

the accused. In “Vikramjit Singh vs State of Punjab”, 2006(12) SCALE 321

also the Supreme Court has held that only when the prosecution has

proved its case that the burden in regard to such fact which was

within the special knowledge of the accused may be shifted to the

accused for explaining the same. So, the crucial question in the case

before us is whether the prosecution has discharged its initial and

primary burden of proving the guilt of the appellant-accused beyond

doubt. In our view, the prosecution has not been able mto discharge

that burden by establishing only one circumstance that the deceased

had left his house on 23rd January,1986 at about 6 p.m. in the

company of the three accused persons.

35. In the result, the appeal in respect of the sole surviving

appellant Bishan Singh succeeds and his conviction under Section

Crl.A. 57/1994 Page 31 of 31

302/34 IPC recorded by the trial Court vide judgment dated 12th

January, 1994 and the sentence of life imprisonment and fine

imposed upon him vide separate order of the same date are set

aside. He stands acquitted. His sentence of imprisonment was

suspended during the pendency of the appeal and now that he has

been acquitted his bail bonds stand discharged.

P.K. Bhasin, J

January 22, 2010. Badar Durrez Ahmed, J