JUDGMENT
T.P.S. Mann, J.
1. This judgment would dispose of Criminal Appeal No. 773-DB of 2003, preferred by Raj Kumar @ Raja and Raj Pal, Criminal Appeal No. 850-DB of 2003, preferred by Raj Pal and Criminal Appeal No. 101-DB of 2005, preferred by Virender Kumar. Although Raj Pal along with Raj Kumar (c) Raja filed the first appeal through their counsel Mr. Deepak Gupta on 8-10-2003 and the same was admitted on 9-10-2003, yet he i.e. Raj Pal sent another appeal against his conviction and sentence through jail on 24-10-2003. The same i.e. Criminal Appeal No. 850-DB of 2003 was admitted on 22-1-2004. Along with the aforementioned three convicts i.e. Raj Kumar @ Raja, Raj Pal and Virender Kumar, one more, namely, Om Prakash was tried by the learned Additional Sessions Judge, Jagadhri. However, on 26-11 2002 when the case was fixed before the learned Additional Sessions Judge, Jagadhri for recording prosecution evidence, it was reported by the Superintendent, District Jail, Ambala that Om Prakash had died. In view of the said report, learned Additional Sessions Judge, Jagadhri dropped the proceedings against accused Om Prakash as having abated.
2. The facts giving rise to the present case are that on 21-3-1998 Sunil Kumar son of Babu PW 16 of Jaswant Colony, Yamuna Nagar submitted an application to Superintendent of Police, Behat, Saharanpur, wherein he stated that he owned one Maruti van No. MBO, 334, which was of Coca Cola colour and was 1995 model. The same had been hired by four persons from bus stand, Yamuna Nagar for Shakumbhri Devi on 19-3-1998 at about 3.00 p.m. The vehicle was driven by Jagmal Singh son of Dhani Ram of village Daulatpur, PS Chhappar, Distt. Yamuna Nagar, Jagmal Singh was to return on the same night. However, when Jagmal Singh did not return till the next morning, he became worried and started searching for his vehicle, but to no avail. On 21-3-1998, when said Anil Kumar along with Madan Lal brother of Jagmal Singh were going towards Shakumbhri Devi in search of the vehicle, they came to know that a dead body of a person was lying on the side of the road between villages Tejpura and Matki. On getting the said information, all of them reached the spot and saw that the dead body was of driver Jagmal Singh. According to him, the four persons, who had hired the vehicle from Yamuna Nagar to proceed to Shakumbhri Devi killed the driver so as to usurp the vehicle. After killing Jagmal Singh driver, his dead body had been thrown on the side of the road and vehicle taken away by those four persons. In this respect information was also conveyed at Police Station, Yamuna Nagar about the incident. Anil Kumar further claimed that his brother Sunil and other persons could Identify those four culprits as they had seen them at bus stand, Yamuna Nagar.
3. On the basis of aforementioned application, FIR No. 131 of 1998 was registered at Police Station Behat, Saharanpur under Sections 392/302/34 of the Indian Penal Code. After recording of the FIR Rajbir Singh SHO, Police Station Behat accompanied by Jai Vir Singh SI PW 20 and other police officials reached the spot and recorded the statement of Anil Kumar PW 16. Inquest report Ex. PT was prepared. The dead body of Jagmal Singh was sent to District Hospital, Saharanpur where post mortem on the dead body was conducted by Dr. R. P. Gupta PW5.
4. On 23-4-1998, S. K. S. Partap S. I. (PW 21) of P. S. Kutubhser in Distt. Saharanpur with police party was on patrol duty. When he reached at a culvert within the area of Manakmau, a Maruti van of white colour with registration No. UAS-8944 was spotted coming from the opposite direction. He made a signal to stop the van. Occupants of the van fired at the police party with a view to escape. They turned the van towards the bank of canal. However, police party was able to stop the van at some distance. The person, who was driving the van was identified as Virender Kumar accused. One more person was sitting by his side. He was identified as Shamim @ Paua. Personal search of Virender Kumar was conducted which led to recovery of a country made pistol of 12 bore from his right hand. The pistol was containing an empty cartridge. When the pistol was opened for unloading, it was smelling as if a fresh shot had been fired from that weapon. From the pocket of Virender Kumar, two live cartridges were recovered. The van, pistol and the cartridges were taken into possession vide memo Ex. PJJ. Engine number and chasis number of the van were recorded in the recovery memo. Later on, it was found that the van was the same which was looted and it was bearing a fake number plate. Its actual registration No. was MBO-334. A case Under Section 307 IPC and under the provisions of Arms Act was registered against Virender Kumar and Shamim in police station, Kutubsher.
5. FIR No. 131 of 1998 registered at Police Station Behat, Saharanpur was also investigated by SI Jaimal Singh PW 12. He found that since the offence of abduction was committed at Yamuna Nagar, the case therefore be transferred to Yamuna Nagar. A letter Ex. PO was written in this respect to Senior Superintendent of Police, Saharanpur. Accordingly, Senior Superintendent of Police, Sharanpur vide letter Ex. PQ sent the case to Superintendent of Police, Yamuna Nagar. On receipt of the said letter, FIR No. 90 (Ex. PO/1) was registered at Police Station, Yamuna Nagar on 13-3-.1999 at 7.00 p.m. vide DDR No. 22. The investigation of the case was taken over by the SI Dharam Singh PW 18, who accompanied by Anil Kumar PW 16 went to the spot from where the dead body was recovered. Site plan was prepared of the said place.
6. Virender Kumar accused was in custody in the case registered against him under Section 307 IPC. On 12-5-1999, he was brought to Yamuna Nagar and arrested in the present case. On being interrogated by Arun Singh Nehra, SHO, Police Station, City Yamuna Nagar (PW 15), Virendra Kumar made disclosure statement Ex. PU to the effect that the pistol used by him was kept concealed by him and he could get the same recovered from the forest area of village, Roshanpur. However, no recovery could be effected in pursuance of the said disclosure statement.
7. Virender Kumar was again interrogated on 15-5-1999, when he made disclosure statement Ex. PV to the effect that the pistol used by him in the crime was kept concealed by him within the area of village Tuni. Even this time also, no recovery could be effected. Two days later, i.e. on 17-5-1999. SI Des Raj PW 13 interrogated Virender Kumar accused. This time accused made disclosure statement Ex. PM to the effect that he had kept concealed the pistol near the wall of City Centre Park, Yamuna Nagar and offered to get the same recovered from there. The accused, thereafter, led the police party to the disclosed place and got recovered pistol Ex. P-10, which was of .315 bore. The same was taken into possession vide memo Ex. PN. Sketch Ex.PR and rough site plan Ex. PS of the place of occurrence were also prepared. On the same day i.e. 17-5-1999, SI Dharam Singh PW 18 along with SI Des Raj PW 13 and other police officials was present in the area of City Yamuna Nagar, in connection with investigation of the case. An information was received by him that Raj Kumar alias Raja, Raj Pal and Om Prakash, who were the other three accused in the case were present in the City Centre Park. The said place was raided and the police arrested the three accused. Personal search of Raj Kumar accused led to the recovery of 12 bore pistol from his dub. The same was taken into possession vide recovery memo Ex. PM. A spring actuated knife was recovered from Om Prakash accused, when his person was searched. On the following day i.e. 18-5-1999, Arun Singh Nehra (PW15) interrogated Raj Kumar and Raj Pal accused. The former accused made a disclosure statement Ex. PW stating therein that he had kept concealed a silver chain of the deceased in his residential house and offered to get the same recovered from there. Similarly, Raj Pal suffered a disclosure statement Ex, PY that while going to the temple, one tyre of the van had punctured, which was replaced with the stepney and the spare tyre was left at the shop of the tyre repairer, which he offered to get it recovered from there. In pursuance of the aforementioned disclosure statements Raj Pal accused got recovered the stepney (spare tyre) of the van from the house of his brother Vikram in Saharanpur. Recovery memo Ex. PK was prepared by the police on 19-5-1999. Silver chain fitted with a coin of Mata. Sheranali was got recovered by Raj Kumar from his house, which belonged to the deceased as he was wearing the same at the time of his murder. Memo Ex. PJ was prepared by the police regarding the recovery of the same. The van was brought from Police Station, Kutubsher and taken into possession.
8. Parcels containing clothes of the deceased, his personal belongings, 315 bore pistol Ex. P10 and bullet Ex. P9 were sent to Forensic Science Laboratory, Madhuban. Vide his report Ex. PG, Senior Scientific Officer of the laboratory found that the bullet Ex. P9 had been fired from pistol Ex. P10 and not from any other fire arm, may it be of the same make and bore/caliber. Clothes of the deceased were found stained with blood.
9. After completing investigation, Balbir Singh SHO PS City, Yamuna Nagar PW 3 prepared a final report under Section 173 of the Code of Criminal Procedure and filed the same before the Court of the Magistrate. As the, four accused were sought to be tried under Section 364, 392, 394, 302 read with Section 34 of the Indian Penal Code, the case was committed to the Court of Session. On 25-8-2000, learned Additional Sessions Judge, Jagadhri, after perusing the police challan, FIR and statements of the witnesses recorded under Section 161 of the Code of Criminal Procedure, found a prima facie case against the four accused for having committed the offences under Sections 364/34, 302/34, 392/34 of the Indian Penal Code. Charge sheet was accordingly prepared. Contents of the charges were readover to the accused, who pleaded not guilty and claimed trial.
10. The prosecution examined C. Raj Kumar PW 1, who had taken the special report of the case and handed over the same to the Illaqa Magistrate and other authorities on 13-3-1999.
11. Ram Kumar PW 2 proved the site plan Ex. PA, which was prepared by him on 7-7-1999, on the pointing of Sunil son of Babu Lal. Balbir Singh SHO PW 3 deposed about preparation of the challan.
12. HC Bhag Singh PW 4 tendered his affidavit Ex. PB in respect, of the deposit of the case property in the Malkhana and thereafter, sending the same to Forensic Science Laboratory, Madhuban.
13. Dr. R.P. Gupta PW 5 proved the post mortem report Ex. PC. The post mortem was conducted by him on the dead body of Jagmal deceased on 22-3-1998.
14. On external examination, he found that the body was of a man having average built and rigor mortis was passed from both extremities. Scrotum were swollen. Penis was swollen, abdomen distended and foul smell was present. He found one ante-mortem injury, which was a gun shot entry wound 2 cm x 1 1/2 cm x cavity deep on right side of chest 3 cm below right nipple in 5 o’clock position, margins were inverted, blackening present around the wound. The 7th rib was fractured.
15. The internal examination revealed that membranes of brain were pale, brain pale, chest cavity contained 1 litre of fluid blood, right lung, was lacerated, stomach was empty. The cause of death in his opinion was due to shock and haemorrhage due to ante mortem injuries. Spinal cord was lacerated.
16. One metallic bullet was recovered. The said bullet was sealed in envelope and sent to SSP/Saharanpur. The clothes removed from the body of the deceased, shirt, baniyan, pant, underwear, rings three in number (two white metal and one copper colour), one Kara of white metal were sealed and the same were handed over to constable accompanied with the dead body.
17. C. Tejvir Singh, who was posted as armourer in police line, Yamuna Nagar while appearing as PW 6 deposed that on 17-5-1999, SI Des Raj presented one country made pistol .315 bore for checking. After checking the same with the help of a gauge, he found the same to be in a working condition. He submitted his report Ex. PD in this respect. Pistol Ex. P10 was the same which he had checked.
18. HC Amar Singh, who was Head Moharrir at Police Station Behat, Saharanpur had handed over two parcels containing a pair of chappal Ex. P12 & Ex. P13, shoe Ex. P11 and clothes of the deceased to ASI Raj Pal, which were taken into possession vide memo Ex. PE. He further deposed about the arrest of Virender as well as one Shamim on 24-4-1998 in a police encounter and the recovery of maruti van bearing No. UAS-8944. He proved copy of the FIR Ex. PF in relation to the aforementioned encounter.
19. C. Hari Ram PW 8 had got conducted post mortem on the dead body of Jagmal. Thereafter, he was handed over one envelope, one report and also one parcel of clothes by the doctor, who conducted the post mortem, which parcels he, thereafter, handed over to MHC of Police Station. At that time he was accompanied by C. Pawan Kumar.
20. Ajaib Singh son of Kanshi Ram, who was related to Jagmal deceased as his first cousin was examined as PW 9 by the prosecution to depose about the last seen evidence. As per his testimony, he went to petrol pump situated at Saharanpur Yamuna Nagar road on 19-3-1998 for getting oil filled in his tractor. In the meantime, one maruti van bearing No. MBO-334 also came there. The van was being driven by his cousin Jagmal. Jagmal told him that he was going to Shakumbhri Devi. In the said van, he noticed that four persons were sitting, apart from his cousin Jagmal, who was the driver. Out of those four persons, one was sitting by the side of Jagmal deceased, while the other three were on the rear seat. He had seen those persons and could identify them. He further deposed that the four persons, who were seen by him while they were sitting in the van were present in the Court as accused persons. According to him, those persons along with Jagmal deceased while riding the van left towards Shakumbhri Devi Side. After 2/4 days, he came to know that his cousin Jagmal Singh had been killed and his van stolen by those persons, who were sitting in the said van. He was joined in the investigation by SI Dharam Singh of Police Station City, Yamuna Nagar on 19-5-1999. When he along with the police officials went to UP, at that time Raj Kumar and Ram Pal accused were with the police party. One silver chain fitted with a coin of Mata Sheranwali was got recovered by Raj Kumar accused from his house. The witness identified the chain to be that belonging to Jagmal deceased as he had seen him wearing earlier. Chain was taken into possession by the police vide recovery memo Ex. PJ. Similarly, Raj Pal accused got recovered one stepney of van from the house of his brother Vikram situated at Saharanpur. The same was taken into possession by the police. This witness signed both the aforementioned memos.
21. C. Gurmukh Singh Bajwa, who was posted in Police Station Kutubsher, Saharanpur appeared as PW 10 and deposed that on 9-8-1999, one ASI from Haryana Police visited the said Police Station in connection with investigation of the case. One maruti van, which was stationed in the Police Station and bearing No, UAS 8944 was taken into possession by that ASI in his presence. Recovery memo Ex. PL was prepared in relation thereto. The engine No. and chasis No. of the vehicle were written in that memo.
22. Jarnail Singh son of Gamdoor Singh of village Badhi Majra appeared as PW 11. According to him, he went to Police Station City, Yamuna Nagar on 17-5-1999 in connection with some work, where he came across SI Des Raj. In his presence, SI Des Raj interrogated one accused, namely, Virender, who made a disclosure statement that he had kept concealed one pistol near Badhi Majra bridge and could get the same recovered. In pursuance thereto, the said accused led the police party to the disclosed place and got recovered the pistol wrapped in polyethylene paper near the wall of City Centre, Yamuna Nagar. The pistol was taken into possession vide memo Ex. PN.
23. SI Jaimal Singh PW 12 stated that FIR No. 131 /1998 under Section 364/392/302/201 IPC was registered at Police Station Kotwali Behat, Saharanpur. Initially, the case was registered with Police Station, Behat, where the dead body of the deceased was found lying. After conducting the investigation, it was found that offence under Section 364 IPC had occurred within the jurisdiction of Police Station, Yamuna Nagar. Therefore, the case was cancelled and sent to Police Station, Yamuna Nagar through Senior Superintendent of Police, Saharanpur. He proved his request Ex. PO and identified the signatures of Shri G. L. Meena, the then Superintendent of Police on Ex. PQ vide which the case was transferred to Yamuna Nagar.
24. SI Des Raj PW13, while being posted at Police Station City, Yamuna Nagar Interrogated Virender Kumar accused on 17-5-1999. On the basis of his disclosure statement Ex. PM, the said accused got recovered a country made pistol of .315 bore, near the wall of City Centre. It was taken into possession vide memo Ex. PN. A ruqa was sent by him to Police Station for registration of case under the Arms Act and separate FIR No. 167/1999 was registered. He recorded the statements of the witnesses and arrested the accused in this case. On the same day i.e. 17-5-1999, he received secret information, on the basis of which, he arrested Om Prakash, Raj Kumar and Raj Pal accused. A pistol containing one live cartridge of .315 bore was recovered from Raj Pal accused and a separate case bearing FIR No. 168/1999 was registered at Police Station City, Yamuna Nagar.
25. Sunil Kumar son of Babu Ram resident of Jaswant Colony, Yamuna Nagar, appeared as PW 14 and deposed that four persons hired his maruti van bearing No, MBO 334 on 19-3-1998. At that time Jagmal Singh was driving the van. All of them proceeded towards Shakumbhri Devi. Jagmal was to return with the van, the same evening, but he did not come back. On the next date, Sunil Kumar along with Jagmal Singh’s brother Madan Lal and two others went to Shakumbhri Devi in search of van. when they were returning from Shakumbhri Devi and reached near village Tajakpura, they came to know about a dead body of a person lying near a bridge. All of them went to the spot and found the dead body to be that of Jagmal, which was identified by him i.e. Sunil Kumar, as well as Madan Lal brother of Jagrnal Singh deceased. He went to the Police Station and made an application, on the basis of which FIR was registered. He also attested inquest report Ex. PT.
26. Arun Singh Nehra DSP, Panipat who was posted as SHO, Police Station City, Yamuna Nagar on 24-3-1998 appeared as PW 15. He stated that on 12-5-1999, ASI Jagdish took production warrant of accused Virender and in pursuance to which accused Virender was arrested. He proved disclosure statements Ex. PU, as well as Ex. PV made by Virender accused regarding concealment of pistol. He also proved disclosure statements Ex. PX made by Raj Kumar, Ex. PY by Raj Pal and Ex. PZ by Om Prakash.
27. Anil Kumar son of Babu Ram resident of Jaswant Colony, Yamuna Nagar, who was co-owner of the van along with his brother Sunil Kumar PW 14, appeared as PW 16. He deposed that on 19-3-1998, Jagmal Singh came to him along with four persons at about 2.30/3.00 p.m. and said that he was to take those persons to Shakumbhri Devi. He handed over the van to Jagmal. He saw that four persons were accompanying Jagmal. Jagmal had told him that he would return to Yamuna Nagar on the same night. When Jagmal did not return, an enquiry was made by Anil Kumar on the next date from the village of Jagmal, but he was not traceable there too. Thereafter, his brother Sunil and Madan went to trace Jagmal on 20-3-1998 and on learning that a dead body of a person was lying near the village bridge In the area of Village Tajakpur, he went to the spot and identified the same. He also identified the van, which was recovered on 9-8-1998 at Police Station, Kutubsher, Saharanpur. Recovery memo Ex. PL prepared in this respect was signed by , him. When called upon to identify the accused, who were present in the Court, he stated that as his eye sight had become weak, and he had totally lost eye sight from one eye, he could not recognize them.
28. SI Raj Pal PW 17 proved recovery memo Ex. PE, vide which he had taken into possession two sealed parcels, one containing the clothes of deceased-Jagmal and the other his chappal, which were produced by Incharge Malknana of Police Station, Behat on 6-8-1999. After obtaining orders from the Court, he took into custody maruti van from Police Station, Kutubhser vide memo Ex. PL.
29. SI Dharam Singh PW 18 was posted in Police Station City, Yamuna Nagar on 13-3-1999, when on that day, he recorded FIR Ex. PO/1 on receipt of letter Ex. PO. He joined Anil Kumar in the investigation and reached the spot. Rough site plan Ex. PZ was prepared by him after inspecting the spot. On 17-5-1999, he along with other officials was present in the area of City, Yamuna Nagar, when he received secret information that accused of this case were present near City Centre Park. He along with other police officials reached the said place. On seeing the police party, three persons started running. On a chase being given by them, Raj Kumar, Om Prakash and Raj Pal were arrested. Pistol of 12 bore was recovered, as a result of search of Raj Kumar. The same was taken into possession vide recovery memo Ex. PM. From personal search of Om Prakash, a spring actuated knife was recovered. Separate cases under Section 25 of the Arms Act were registered against both Raj Kumar and Om Prakash. On 19-5-1999, accused Virender and Raj Pal got recovered one silver chain and a stepney.
30. SI Harsharan Sharma PW 19 was posted as such in Police Station, Kutabsher, district Saharanpur on 23-4-1998. On that day, he along with SHO Sunil Kumar Singh Pratap and others was present on patrol duty in the area of Manak Mau Bridge. A maruti van bearing No. UAS 8944 was seen coming from the opposite direction. The police party gave a signal to stop the van. However, the driver did not pay any heed and drove away. The person sitting on the front seat with the driver asked the driver to fire on the police. The driver stopped the van at a short distance and thereafter, fired a shot on the police party. However, the latter had a narrow escape. Both the driver and other person sitting by his side in the van were apprehended at 10.30 p.m. Their personal search was conducted. One of them gave his name as Sat Pal alias Virender son of Karan Singh resident of Patna Naya Bans, PS. Chilkana, Distt. Saharanpur. From his personal search, one country made pistol of 12 bore with an empty catridge was recovered and two live cartridges were recovered from the pocket of his shirt. The pistol was recovered from his hand. The other person told his name as Shamim @ Pauva son of Jarif r/o Manak Mau, P. S. Kotwalia Dehat, Distt. Saharanpur. From his personal search one knife was recovered. The van was taken into possession. Virender accused disclosed that they had stolen the said van from Deharadun two months earlier. A case under Section 307 IPC and 25 Arms Act was registered. Pistol Ex. P10 was the one, which was recovered from Virender accused. .
31. SI Jai Vir Singh of Police Station, Behat appeared as PW 20, who deposed that he along with SHO Rajbir Singh and other police officials reached the spot, where the dead body of a person was found lying. Inquest report Ex. PT was held. The dead body was, thereafter, sent to District Hospital, Saharanpur for post mortem examination. A case in that regard was also registered in Police Station. Copy of the FIR was registered was Ex. PGG.
32. SI S. K. S. Partap, who was SHO of Police Station, Kutubsher on 23-4-1998 appeared as P.W. 21. He was the one who along with the patrol party arrested Virender accused and one Shamim alias Paua. A pistol and knife were recovered from these two accused. He proved FIR Ex. PF, which was registered against Virender Kumar and Shamim alias Paua under Section 307, I.P.C. Van bearing No. USA 8944 was recovered by preparing a recovery memo.
33. Sh A. K. Verma, Additional District Judge, Kurukshetra P.W. 22 was posted as Chief Judicial Magistrate, Jagadhri on 18-5-1999. On that day, three accused, namely, Raj Pal, Raj Kumar alias Raja and Om Parkash were produced before him with a request to remand them in judicial custody, so as to enable the prosecution to put them for test identification parade. An application Ex. PKK was moved in that regard. He recorded statement of accused Ex. PKK/1. whereby they refused to join the test identification parade. The accused were produced before him in muffled faces. In view of the statement made by the accused, application Ex. PKK moved by the police was disposed of by him by passing an order Ex. PKK/2.
34. Learned Public Prosecutor for the State, thereafter, closed the prosecution evidence on 29-5-2003.
35. The case of the prosecution was put to the accused under Section 313 of the Code of Criminal Procedure, who denied the correctness of the prosecution version and claimed that they had been falsely implicated. They further told that no disclosure statement was made by any of them, nor any recovery was effected from their possession. When called upon to lead evidence, accused tendered into evidence a copy of judgment Ex. DA.
36. After perusing the evidence led by the parties and hearing the arguments of their respective learned Counsel, learned Additional Sessions Judge, Jagadhri convicted the appellants, namely, Raj Kumar alias Raja, Raj Kumar and Virender under Sections 364/392/394/397/302 read with Section 34, IPC. Learned trial Court declined to use the circumstance of the recovery of stepney and silver chain from the accused, as the same had not been produced before the Court. However, the remaining circumstances were found to be credible to complete the chain so as to lead to one and the only one conclusion of the guilt of the accused. Each of the convicts was sentenced to life imprisonment under Section 302 read with Section 34, IPC, RI for 7 years under Section 364 read with Section 34, IPC and RI for 10 years under Sections 392/397 read with Section 34, IPC. All the sentences were ordered to run concurrently.
37. Feeling aggrieved by the said judgment of conviction and sentence, the appellants have preferred the appeals mentioned above.
38. Learned Counsel for the appellants submitted that the testimony of Ajaib Singh P.W. 9 in regard to his having last seen the deceased in the company of four accused was highly improbable. He was a close relative of Jagmal-deceased. He did not disclose about the said piece of evidence for more than a year. It was also argued that there was no evidence on the file to show that the accused, when they were put up for test identification parade, were having their faces muffled. Recovery of van from the possession of Virender Kumar-appellant and recovery of pistol Ex. P10 at his instance were also doubted on the ground that said Virender Kumar had since been acquitted in the case under Sections 307, I.P.C. and 25 Arms Act, registered at Police Station, Kutubsher, Distt. Saharanpur.
39. Learned Counsel appearing on behalf of the State refuted the arguments raised on behalf of the defence and pleaded that the prosecution was able to establish its case against the accused beyond reasonable shadow of doubt.
40. We have heard the arguments and perused the records of the case minutely with the assistance provided by the learned Counsel for the parties.
41. Ajaib Singh P.W. 9 was related to Jagmal-deceased as his cousin. On 19-3-1998, he went to petrol pump situated at Saharanpur-Yamuna Nagar road for getting oil filled in his tractor. In the meantime, Jagmal-deceased while driving the maruti van came there. He was accompanied by four persons. This witness identified the accused in the Court, at the time of recording of the prosecution evidence. Apart from the said Ajaib Singh P.W. 9, the prosecution also examined Anil Kumar P16, who deposed that four persons hired his maruti van on 19-3-1998. It was Jagmal-deceased, who was driving the van. All of them proceeded towards Shakumbhri Devi. Anil Kumar P.W. 16 could not recognise the accused in the Court as his eye sight had become weak and he had totally lost sight from one eye. Ajaib Singh P.W. 9 had sufficient opportunity to look at the accused, who were accompanying Jagmal-deceased on 19-3-1998. Mere fact that Ajaib Singh P.W. 9 was first cousin of deceased and Anil Kumar P.W. 16 was the employer of the deceased was no ground to disbelieve their testimonies.
42. The evidence of identifying the accused for the first time at the trial of the case is generally of a weak character. Where the accused was not known to the witnesses earlier and those witnesses had an opportunity to see the accused only once in a fleeting manner, a duty is cast upon the prosecution to hold a test identification parade, so as to test the veracity of the prosecution witnesses in regard to their observation as to whether the accused was the same person who had committed the offence or not. The facts of the present case are on different footing. During the investigation of the case, the accused were put up for test identification parade. Application Ex. PKK was presented by the police before Shri A. K. Verma, the then C.J.M. on 18-5-1999 with a request that the three accused be remanded to judicial custody, as they were to be identified by the witnesses. It was specifically mentioned therein that the accused were being produced with muffled faces, besides fixing a curtain on the door of the police lock up. The three accused made statement that they did not want to join any identification parade. It cannot, thus, be said that the police did not hold any test identification parade. It were the accused themselves who refused to join the test identification parade. Afterwards, the accused were identified by the witnesses in the Court, during the recording of the prosecution evidence. The Court can, thus, draw an inference that the accused if associated themselves in the test identification parade would have been identified by the witnesses who had seen them with the deceased. The accused did not give any reason or explanation in not allowing themselves to be put up for test identification parade.
43. The prosecution had examined SI Harsharan Sharma PW19 and S. K S. Partap SI P.W. 21 in respect of the circumstance that the van in question was recovered from Virender Kumar-accused in a police encounter. The statements of these witnesses were not challenged by the defence at the time when the van was recovered from the possession of the accused i.e. on 23-4-1998. The aforementioned two witnesses did not know that it was the same van which was looted by the accused from the possession of Jagmal-deceased. FIR regarding the murder of Jagmal-deceased stood registered at Police Station, Behat, whereas FIR in respect of the encounter in which Virender Kumar-accused was arrested and van recovered from his possession was registered in Police Station, Kutubsher. During the interrogation of Virender Kumar-accused, the police came to know that the van in question recovered by the police of Police Station, Kutubsher from the possession of Virender Kumar-accused was the same. Afterwards, the van was brought from Police Station, Kutubsher and taken into possession in the present case. Mere fact that Virender Kumar-accused along with Shamim alias Pauva, who were involved in the case under Sections 307, I.P.C. and 25 Arms Act registered at Police Station. Kutubsher, Distt. Saharanpur on 23-4-1998, which pertained to their having fired at the police party and they were acquitted therein was no ground to hold that the recovery of van in question from Virender Kumar was doubtful. They were acquitted for want of independent corroboration. Besides, the statements of the official witnesses were contradictory and discrepant in nature. The details of the van were given in the said case, especially its engine and chassis numbers. The van at that time was bearing a fake registration number i.e. UAS 8944, whereas its actual registration number was MBO 334. The engine and chassis numbers tallied with the particulars contained in the registration certificate of maruti van No. MBO 334. SI Harsharan Sharma P.W. 19 gave the details of the apprehension of Virender Kumar-accused and the recovery of van. A country made pistol of .12 bore was also recovered from Virender Kumar-accused a the time of his apprehension.
44. After the transfer of investigation from the Police Station Behat, Saharanpur to Police Station, Yamuna Nagar, when FIR No. 90 was registered at the latter Police Station on 13-3-1999, the custody of Virender Kumar-accused was also obtained and he was brought to Yamuna Nagar on 12-5-1999 and arrested in the present case. He was interrogated on 12-5-1999 and again on 15-5-1999. On both the occasions, he made misleading disclosure statements Ex. PU and Ex. PV, respectively. Ultimately, on 17-5-1999 Virender Kumar-accused made disclosure statement Ex. PM, in pursuance to which he got recovered .315 bore pistol. Ex. P10 from near the wall of City Centre Park, Yamuna Nagar. Pistol Ex. P10 was sent to Forensic Science Laboratory, Haryana. 315 bore fired bullet, which was taken out from the dead body of deceased-Jagmal was also sent to the Laboratory. .The firing mechanism of the pistol was found to be in working order. It was also found that .315 bore fired bullet had been fired from country made pistol Ex. P10 and not from any other fire arm, even of the same make and bore/caliber, because every fire arm has got its own individual characteristic marks. Report Ex. PG was prepared by Senior Scientific Officer, FSL, Haryana on 9-5-2000. Merely because pistol Ex. P10 was not sealed is not sufficient to conclude that the identity of weapon was not established.
45. Recovery of van from Virender Kumar-accused was evidence of the fact that motive was to kill Jagmal-deceased and to loot the van, besides the silver chain and the stepney, which were also recovered at the instance of the accused. Mere fact that the learned trial Court has not placed any reliance on the evidence of the prosecution regarding recovery of the silver chain and the stepney was no ground to discredit the prosecution evidence.
46. Learned Counsel appearing on behalf of the appellants relied upon Jasbir Singh v. State of Punjab 1998 (2) RCR (Criminal) 270 : 1998 Cri LJ 2063 and Bharat v. State of M.P. 2003 (1) RCR (Criminal) 637 : 2003 Cri LJ 1297.
47. We have gone through both the Judgments referred to above. However, the judgments are not applicable to the facts and circumstances of the present case. The first case related to an offence under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and the offence was of recovery of unlicenced weapon and cartridges. The identity of the weapon and cartridges was essential to the case of the prosecution, but that was not the position in that case. Accordingly, the conviction was set aside. The present case related to an offence of commission of murder for which sufficient material has been brought by the prosecution on record to connect the accused with the crime. In the second Judgment mentioned above, it was held that where the case was based on circumstantial evidence and the deceased was last seen with the accused, no conviction could be recorded in case the accused failed to explain his presence with the deceased in his statement under Section 313, Cr. P.C. In the present case, the prosecution is not relying on the failure of the accused in explaining their presence with the deceased. The prosecution here is consistent that the accused were last seen with the deceased. Apart from that it was a case of recovery of van, which was being taken by the deceased at the time of the occurrence. The deceased was shot by a bullet which was taken out by the doctor while conducting post-mortem examination. The said fired bullet matched with .315 bore pistol Ex. P10, recovered at the instance of Virender Kumar-accused.
48. On a close scrutiny of the various pieces of evidence brought by the prosecution on record, we find that they point towards one and the only one conclusion, i.e. establishing the guilt of the accused. The circumstantial evidence points indubitably to the conclusion that it were the accused and the accused alone, who were the perpetrator of the crime. Such evidence was incompatible with the innocence of the accused.
49. We do not find any infirmity in the judgment passed by the learned trial Court, while convicting and sentencing the appellants. The appeals are devoid of any merit and are dismissed.