JUDGMENT
R.S. Sodhi, J.
1. Criminal Appeal No. 832 of 2003 seeks to challenge the judgment and order of Additional District and Sessions Judge, Delhi, in Sessions Case No. 213 of 2003, arising out of F.I.R. No. 288 of 2001, Police Station Lodhi Colony, whereby learned judge vide his judgment dated 22.11.2003 has held the appellant, Jasbir Singh @ Balley, guilty for the offence punishable under Section 302 I.P.C. Further, vide his separate order dated 22.11.2003, has sentenced the appellant to imprisonment for life for offence punishable under Section 302 I.P.C. together with fine of Rs. 10,000/- and in default of payment of fine, Rigorous Imprisonment for six months. The appellant was awarded benefit under Section 428 of Code of Criminal Procedure.
2. Brief facts of the case as have been noted by learned Additional District and Sessions Judge in his judgment under challenge are as follows:
Deceased Satbiri was wife of Jagdish Chander, who was having agricultural land in village Birohi, Haryana. Jagdish Chander and Satbiri had no issue. Jagdish Chander died in January, 2001 after long illness. Satbiri continued to live in the house No. B-28, Palika Kunj, Lodhi Colony, New Delhi, where she was earlier living with her husband. In February, 2001, she made a complaint to local police wherein she stated that she was in danger from her near relations because of the land and other immovable property left by her husband in village Birohi. She also told her brothers about the pressure being put on her for adopting one of the sons of brother of Jagdish and for transferring her property in the name of brothers of her husband.
Deceased Satbiri used to go to a temple in Palika Kunj in the early morning regularly and used to sweep the temple. On 6.8.01, Satbiri after locking her room had gone to the temple as usual in the earlier hours of morning. Two persons came to her house and directly went towards the backside of the house, where they banged the door. Finding the door not being opened, they broke open a part of the door but did not find Satbiri in the room. Those persons then searched for Satbiri and found her near the temple, where struggle took place between Satbiri and the assailants as is revealed from the broken teeth of Satbiri scattered on the spot, blood stains scattered on the spot, broken bangles and pulled hair not only of Satbiri but even of assailants, etc., but since Satbiri was alone, despite her putting stiff struggle, she could not save her life. She was stabbed and was shot from close range on her head. Somebody informed Police Control Room which came on the spot and removed Satbiri to hospital, where she was declared brought dead. Local police was informed, which reached the spot, after deceased was removed to hospital. From investigation, police came to know of a conspiracy hatched up between accused Anil, Jasbir @ Balley and Mahavir for killing Satbiri because of property left by her husband. After investigation, charge was framed against the accused persons to which they pleaded not guilty.
3. The Prosecution in order to establish its case examined as many as 22 witnesses. Of these, PW-1, Bhoop Singh, elder brother of the deceased Satbiri, who identified her dead body and proved statement Exhibit PW 1/A. PW-2 is Pandit Ram Kishan, the eye-witness who narrated the incident but could not identify the accused persons. PW-3, Satbir Singh, brother of the deceased, deposed about the property dispute. PW-4 is Dr. T. Millo, Senior Resident, Department of Forensic Medicine, A.I.I.M.S., who conducted postmortem on the body of deceased, Satbiri. PW-5 is Rajender Kumar Mishra, tenant of the deceased. PW-6, Dr. Atul Kumar Aggarwal, proved MLC Exhibit PW 6/A. PW-7, Constable Yogender Singh, is the photographer who took photographs of the site Exhibit PW7/B1 to PW 7/B17 and their negatives Exhibit PW 7/A1 to PW 7/A17. PW8 is Constable Wakil Khan. PW-9, A.S.I. Mahavir Singh, proved F.I.R. Exhibit PW 9/A. PW-10, Head Constable Mata Prasad, was working as MHC (M) and proved entries in Register No. 19 Exhibit PW 10/A. PW-11, A.S.I. Mahipal Singh, is witness to the arrest of Jasbir and Anil vide arrest memo Exhibit PW 11/A and PW 11/B respectively and their disclosure statements Exhibit PW 11/C and PW 11/D. He is also witness to the recoveries effected from the accused persons. PW-12, Constable Parvez Khan, proved DD No. 17-A, Exhibit PW 12/A. PW-13 is S.I. Ulhas Giri (retired) who proved complaint lodged by deceased Satbiri, Exhibit PW 13/A. PW-14, A.S.I. Goverdhan and PW-15, Constable P. Putta Nanja are formal witnesses. PW-16, S.I. Mahesh Kumar, Draftsman, who prepared site plan Exhibit PW 16/A. PW-17, Yogesh Kumar Jain, is a formal witness. PW-18, Head Constable Virpal Singh, is a witness to the arrest of accused persons. PW-19, Constable Raj Kumar, is a formal witness. PW-20 is Vijay Sirotiya. PW-21 is K.C. Varshney, Senior Scientific Officer (Ballistics), F.S.L., Malviya Nagar, proved FSL report Exhibit PW 21/A and PW-22 is Inspector Surenderjit, Investigating Officer.
4. It is contended by counsel for the appellant that the impugned judgment is based on surmises and conjunctures. The reasoning is not backed by evidence. He contends that the beneficiaries of the death of Satbiri, Mahavir and his son Anil, have been acquitted. He also contends that the learned trial judge himself has not relied upon the theory of conspiracy while acquitting Mahavir in which event there was no motive to implicate the appellant. PW-3, Satbir Singh, PW-5, Rajender Kumar Mishra and PW-13, S.I. Ulhas Giri (retired), who have been pressed into service by the Prosecution to prove motive, do not name the appellant. Further, PW-2, Pandit Ram Kishan, who is stated to be an eye-witness does not support the Prosecution’s case and does not identify the appellant as the assailant. The judgment in so far as it draws upon PW-2, is contrary to material on record since PW-2 does not make any such assertion as has been made out in the judgment. Learned Counsel also attacks the disclosure statement which is alleged to have been made on 12.8.2001 at the time of arrest of the appellant whereas recovery was effected on 15.8.2001, giving ample opportunity to plant the weapon and no explanation has been offered by PW-22, Inspector Surenderjit, for the delayed recovery besides the fact that the disclosure statement was not witnessed by independent witnesses. Learned Counsel for the State, on the other hand, submits that the trial court’s judgment gives cogent reasons based on evidence which ought not to be interfered with.
5. We have heard counsel for the parties and have carefully gone through the material on record. We find that the appellant was charged for having committed an offence under Section 120B IPC read with Section 302 IPC. He was also charged along with Anil Kumar for having committed an offence punishable under Section 302 IPC. The trial court acquitted Mahavir and Anil. Consequently, what remained in the charge against the appellant, Jasbir Singh, is culpable homicide amounting to murder punishable under Section 302 IPC. In order to prove the charge so framed, it was necessary for the Prosecution to show the individual act of the appellant, Jasbir Singh, which amounted to murder and thus punishable under Section 302 IPC. The Prosecution has heavily relied upon the testimony of PW-2, Pandit Ram Kishan, who states that he knew Jagdish Chand, who was his colleague and lived in B-28, Palika Kunj, Karbala, Lodhi Colony. After the death of Jagdish, his wife used to live in the house apart from Mishraji, who was his tenant. The witness claims to have gone to the village of Jagdish Chand after his death and attended his cremation. There he met Mahavir, brother of the deceased Jagdish Chand. The witness goes on to narrate that there was a temple in the locality in Palika Kunj which was taken care of by him and Satbiri used to clean the chabootra. He received a telephone call on 6.8.2001 from his brother who lived in B-34, Palika Kunj that some persons were breaking door of Satbiri. On receiving this information, he went there and saw that the door of the house was locked from the side of the main road but the rear door was broken and there was no one in the house. At around 6 a.m., Satbiri came to the temple and informed the witness that someone had broken a door and that she would make a telephone call to the police regarding the incident. Since the telephone was out of order, the witness suggested that she may use his phone, which she did. On return after making the telephone call while he went towards the water tap of the temple, he found Satbiri on the ground with a boy near her. That boy was holding a fire arm which was also held by Satbiri. Suddenly another person came from somewhere. That person was holding a knife. At that time, the witness got scared and ran away from there. The witness states that he cannot identify those persons whom he saw near Satbiri. The witness was cross-examined by the Additional Public Prosecutor in which he states that the police had come after the murder of Satbiri to the spot and he was called at the police station where he was interrogated. The police recorded his statement but he had not told the police that he came out of the temple on hearing ‘bachao bachao’ from Satbiri. He denied having given any description or age of the boys whom he saw near Satbiri with fire arm. He admitted that he had told the police that he had caught hold of the boy with revolver and also that while grappling, the revolver got opened. He denied having told the police that the person was 5’10? tall but had told the police that the other person had given the knife blow in the stomach of Satbiri. He stated that he might have told the police that the revolver which was caught hold by Satbiri, fell on the ground and that the other person picked up the revolver and fired from the same while placing it near Satbiri’s ear. He denied having told the police that the second boy had inflicted several knife blows on Satbiri. He denied having told the police that the boys threatened him. The witness goes on to say that after the assailants had run away, he came back and found Satbiri was still alive, he cried for help but nobody came. Thereafter, he went to sleep in his house and police did not come to him. None of the three persons were the assailants. He had told this fact to the SHO also. The police had also come to him on 14.8.2001. On that date, the police had brought accused Anil and Jasbir Singh with them but the witness had told Head Constable Mahipal Singh that these were not the assailants. However, the witness was made to sign document of that time being assured that the paper did not contain anything serious. In cross-examination by the defense, the witness states that when he was called by the SHO and DCP Kamraj, Satbiri was not there, however, blood was lying there. He did not find the revolver on the spot, the police might have taken it.
6. Analyzing the statement of this witness, what emerges is his categoric denial of the appellant or the other accused persons being the assailants. The trial court believed this witness qua Mahavir and Anil. We also find that this witness grappled with the assailant whose revolver opened. The witness is categoric that there were two assailants and that the second boy who inflicted several knife blows was the boy who also fired from the pistol which had fallen on the ground during grappling with Satbiri. However, trial court while dealing with the evidence of PW-2 allowed itself to get confused to arrive at a conclusion that apart from PW-2, there was no other witness in this case except the circumstances which have been proved by the Prosecution, namely, motive, refusal of TIP, recovery of pistol at the instance of Jasbir, recovery of blood stained T-shirt at the instance of Anil and FSL report showing that this pistol was the same through which a shot was fired at Satbiri. Surely, at this stage, while adverting to the deposition of PW-2, the other deductions regarding motive, refusal of TIP, recovery of pistol in the incidence do not stand proved, such a finding is unwarranted and beyond admissible material on record. In cross-examination by the defense, the witness states that the revolver might have been taken away by the police from the spot implying thereby that the assailants had abandoned the weapon while fleeing.
7. PW-3 is Satbir Singh, who is the brother of the deceased Satbiri. He deposes to the effect that Mahavir was brother of Jagdish Chand and the other two persons were nephew of Jagdish Chand. After the death of Jagdish, Satbiri had told him about some danger. This witness was crossexamined by the Additional Public Prosecutor wherein he states that Satbiri had told him that during the life time of Jagdish, his brother Mahavir had built a house over Jagdish’s plot. He also narrates as to the nature of relationship between Mahavir and Jagdish as also Satbiri.
8. Analyzing the testimony of this witness, it appears that there was an undercurrent in the relationship of Mahavir and the deceased Satbiri. But the witness nowhere talks of the appellant having any hand in either threatening Satbiri or having caused any annoyance to Satbiri or having any reason for enmity with Satbiri.
9. PW-5, Rajender Kumar Mishra, who was the tenant of Satbiri also does not implicate the appellant in any manner nor does PW-13, S.I. Ulhas Giri (retired). In other words, no witness deposes to the appellant having any motive to assault Satbiri.
10. The trial court while dealing with the motive has held that the Prosecution has successfully proved the same. Further, the reasoning appears to be bereft of evidence on record. The trial court has relied upon the testimony of PW-3, PW-5 and PW-13 to the effect that Satbiri feared for her life from her near relatives and neighbours which it finds has been deposed to by the aforesaid witnesses. But how this becomes a motive to implicate the appellant is nowhere to be found in the judgment. Merely because PW-3, PW-5 and PW-13 state that Satbiri was afraid of her relatives and neighbours, cannot lead to the inference that the appellant, who was nephew of the brother-in-law of the deceased, would either benefit from the death of Satbiri or was nursing any grudge which could be termed as motive to cause the murder of Satbiri.
11. With very great respect to the learned trial judge, we find that the finding returned on the point of motive is not only baseless but perverse. Coming to the much trumpet circumstance of recovery of a countrymade pistol at the instance of the appellant pursuant to a disclosure statement, it would be proper to analyze the statement of PW-22, Inspector Surinderjit. He claims to be the Investigating Officer, who received information that a lady had been injured and was admitted to AIIMS by PCR van. He took up the investigation, went to the spot, made recoveries, prepared a site plan and thereafter without any rhyme or reason went to arrest accused Anil. On 12.8.2001, he went to village Barahi, District Jhajjar, Haryana, where he interrogated the brother of Anil and thereafter took him to arrest Anil. Anil and Jasbir were arrested from the bus stand at the pointing of Surinder. The personal search was taken and memos prepared. Their arrest memos were prepared, Exhibit PW 11/A and 11/B. He interrogated the accused and recorded their statement Exhibit PW 11/C and 11/D. He came back to Delhi along with accused persons and produced them in court in muffled face on the next day. He requested the Metropolitan Magistrate for TIP of the accused persons which was refused since they were shown to the witnesses as has already been stated by PW2. This witness thereafter obtained police remand for three days. According to him, accused Anil had made a disclosure that they had come on a scooter which he could get recovered along with a T-shirt, which was blood stained. The appellant, Jasbir Singh told him that he could get recovered a country-made pistol and knife used by him in the crime and thrown by him in a drain. Accused Anil led the police party to his house in village Barahi and got recovered a light green coloured scooter as also one blue coloured striped shirt having blood stains from the dicky of the scooter which were seized vide memos Exhibit PW 11/J and 11/K. Then the appellant Jasbir led the police party to the middle drain between Bijwasan and Chhawla camp where under the bushes of a sheesham tree, one country-made pistol was recovered. It was seized vide memo Exhibit PW 11/H. He took sample hair of both the accused and sent the sealed parcels to CFSL, Malviya Nagar on 18.9.2001. On 1.11.2001, he arrested Mahavir and recorded his disclosure statement but no recovery could be made at his instance.
12. From the statement of this witness, it is not clear as to what impended him to seek Anil. The witness does not talk of any secret information or any other information which he had received identifying Anil as the assailant. However, the witness on 12.8.2001 went to Haryana and arrested Anil and Jasbir. The witness was categoric that he recorded the statements of both these accused at the spot which were Exhibit PW 11/C and 11/D. It was thereafter that he came back to Delhi along with the accused persons. Most surprisingly, no recoveries were effected on 12.8.2001. However, a remand for three days was obtained after the accused refused TIP. It was during this socalled police remand that Anil made a disclosure statement and got a scooter and T-shirt recovered as also Jasbir made a statement and got the country-made pistol and knife recovered. The timing appears to be most suspicious. If a disclosure statement had been made on 12.8.2001 which is recorded as Exhibit PW 11/C and 11/D, where was the necessity of waiting till 15.8.2001 to effect recoveries. PW-2 talks of the weapon of offence having fallen on the ground which might have been picked up by the police. If that be so, its recovery from the appellant Jasbir cannot be believed and if a disclosure statement had been made on 12.8.2001, there is no explanation worth the name from the Investigating Officer as to why he waited till 15.8.2001 to effect recoveries. This procedure of investigation is, to say the least, most defective and indeed creates grave doubt as to the authenticity of recoveries effected at the instance of the accused persons. We need hardly say that recoveries effected from Anil have not been believed by the trial court to bring home the guilt against Anil. We also find that the sample of hair collected from the accused persons, namely, Anil and Jasbir, did not match those found of the assailants on the spot. The explanation of the trial court in reconstructing the scene of crime is indeed most graphic based on a fertile imagination without material on record.
13. The trial court itself having acquitted Mahavir and Anil, the appeal before us stands confined to the conviction of Jasbir for an offence punishable under Section 302 IPC. There is absolutely no material on record to connect the appellant, Jasbir Singh with the murder of Satbiri. Taking the Prosecution’s case at the highest that a pistol was recovered at the instance of Jasbir, which pistol was used in the commission of crime, cannot by itself lead to the inference that it was Jasbir who committed the crime. Law on this point is clear enough and need not be restated. However, in the present case, we have already disbelieved the recovery of the pistol at the instance of Jasbir.
14. With this, we find the Prosecution has miserably failed in bringing home the charge under Section 302 IPC against Jasbir. In the forgoing, we set aside the judgment of conviction and order on sentence dated 22.11.2003 and acquit the appellant of the charge framed. Criminal Appeal No. 832 of 2003 is allowed. The appellant, who is in jail, be set at liberty forthwith unless wanted in any other case.