{"id":140024,"date":"2011-04-28T00:00:00","date_gmt":"2011-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ashutosh-baneerjee-alias-pappu-vs-state-on-28-april-2011-2"},"modified":"2015-05-18T01:13:39","modified_gmt":"2015-05-17T19:43:39","slug":"ashutosh-baneerjee-alias-pappu-vs-state-on-28-april-2011-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ashutosh-baneerjee-alias-pappu-vs-state-on-28-april-2011-2","title":{"rendered":"Ashutosh Baneerjee Alias Pappu vs State on 28 April, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Ashutosh Baneerjee Alias Pappu vs State on 28 April, 2011<\/div>\n
Author: S.Ravindra Bhat<\/div>\n
*      IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n                                                          RESERVED ON: 14.01.2011\n                                                        PRONOUNCED ON: 28.04.2011\n\n+                              CRL.A. 786\/2001\n\n       SAVITA alias BABBAL                                               ..... Appellant\n\n                       Through : Ms. Rebecca. M. John, Advocate along with\n                                 appellant in person.\n\n                                     versus\n\n       STATE OF DELHI                                         ..... Respondent<\/pre>\n
                       Through : Sh. Lovkesh Sawhney, APP.<\/p>\n
\n\n                               CRL.A. 795\/2001\n\n       ASHUTOSH BANEERJEE alias PAPPU                                    ..... Appellant\n\n                       Through : Appellant in person.\n\n                                     versus\n\n       STATE                                                  ..... Respondent\n\n                       Through : Sh. Lovkesh Sawhney, APP.\n\n                               CRL.A. 919\/2001\n\n       RAVI CHOUHAN                                                      ..... Appellant\n\n<\/pre>\n
                       Through : Ms. Charu Verma, Advocate along with appellant in person..<\/p>\n
\n\n                                     versus\n\n       STATE                                                  ..... Respondent\n\n                       Through : Sh. Lovkesh Sawhney, APP.\n\n                               CRL.A. 926\/2001\n\n       SWAMI RAMESHWARANAND GIRI alias VI                                ..... Appellant\n\n<\/pre>\n
                       Through : Sh. Mukesh Kalia, Advocate along with appellant in person.<\/p>\n
\n\n                                     versus\n\n\nCrl.A.Nos. 786, 795, 919, 926\/2001                                                    Page 1\n        STATE GOVT. OF NCT OF DELHI                                     ..... Respondent\n\n               Through : Sh. Lovkesh Sawhney, APP.\n\nCORAM:\n\nMR. JUSTICE S. RAVINDRA BHAT\n\nMR. JUSTICE G.P. MITTAL\n\n1.     Whether the Reporters of local papers        YES\n       may be allowed to see the judgment?\n\n2.     To be referred to Reporter or not?           YES\n\n3.     Whether the judgment should be               YES\n       reported in the Digest?\n\nMR. JUSTICE S.RAVINDRA BHAT\n\n%\n\n<\/pre>\n
1.     The present common judgment will dispose of the above four connected appeals. All
\nthe accused\/Appellants were convicted by the trial court under Sections 302 read with
\nSection 34, IPC; the Appellant Savita, in addition, was convicted under Section 203 IPC.\n<\/p>\n
2.     The case of the prosecution in brief is that on receipt of DD No. 38A at about 2:24
\nAM on the night intervening of 02-03.12.1994, SI Sardar Singh reached at H. No.29\/156,
\nWest Patel Nagar and found Manoj Girotra (the deceased) son of Jagdish Rai lying on the
\nfloor in a pool of blood in the first floor drawing room; blood was scattered on the floor, on
\nthe pillow and bed sheet. There were number of knife blows on the deceased’s body. The
\nbedroom almirahs were open, empty jewellery boxes were also lying on the ground. SI Sardar
\nSingh recorded the statement of the wife of deceased Manoj (hereafter “Savita”) who was
\npresent at the spot. She disclosed that she along with her husband was watching the film
\n“Burning Train” on TV and at about 1:30 AM, after the film got over they were conversing
\nin their room on the first floor. Someone knocked the door; Manoj opened the door and three
\npersons armed with knives entered the premises. One of them held a knife at the deceased’s
\nneck and took him to the drawing room. Another person held the knife at her neck and
\ndemanded the almirah keys; the third man took out gold ornaments from the almirah. All of
\nthem were to leave, but the man holding the knife to her, tried to tease her; he tore her
\nclothes. When her husband Manoj protested, he was given knife blows at many places on his<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 2
\n body by the intruders. As a result, Manoj fell down and all the three intruders fled from the
\nspot. She raised alarm and her father-in-law’s cousin Mahender Lal and others from the
\nlocality went upstairs.\n<\/p>\n
3.     It was alleged that after initial investigation, SI Sardar Singh found no clue in the
\ncase. He handed over investigation to Inspector Rajbir Singh, of Special Investigation Branch
\nwho found suspicious activities on the part of Savita and her family guru Swami
\nRameshwaranand Giri (hereafter “the swami”). On 13.09.1995 the swami was arrested and
\none letter written by him to Savita was seized from him, addressed to her as his lover and
\nwife. After finding clues against Savita, she was arrested and on 13.09.1995. Accused Raj
\nKumar and Jagdish Lal were also arrested and on 17.09.1995 accused Ravi Chauhan and
\nAshutosh Banerjee were arrested. Accused Om Prakash @ Omi could not be arrested by the
\npolice and was declared as proclaimed offender.\n<\/p>\n
4.     It was alleged that the swami was interrogated; he disclosed being very close to the
\nfamily of Saudagarmal Sethi, Savita’s father and in the year 1994 when he was ill, he
\nremained in their house and had a physical relationship with Savita. Savita’s marriage was
\nsolemnized on 10.10.1994 with Manoj and the swami blessed the couple. After the marriage,
\naccording to the prosecution, the swami and Savita kept on meeting each other, and in one
\nsuch meeting, they conspired to kill Manoj and asked for assistance from one devotee
\naccused Raj Kumar. He arranged for the killers; the swami paid `40,000\/- to the killers. On
\n15.11.1994 accused Raj Kumar took his co-accused Ravi Chauhan on his motor cycle
\nNo.DIW 1149 to Patel Nagar and according to the plan, Savita along with her husband Manoj
\nwent to Hanuman Mandir on their scooter. Accused Raj Kumar and Ravi Chauhan started
\nchasing them. On reaching Shankar Road, near the petrol pump, Savita dropped her slipper
\nintentionally, ensuring that the scooter stopped and alighted from it to retrieve the slipper. Raj
\nKumar stopped his motorcycle at some distance; accused Ravi Chauhan fired at Manoj with a
\ncountry made pistol. Manoj was injured on the back of the shoulder. Accused Ravi Chauhan
\nhid himself in the bushes and accused Raj Kumar fled on his motorcycle. The swami was in
\nhis car bearing No. DL 4C A7094 and he took Ravi Chauhan in his car.\n<\/p>\n
5.     It was further alleged that on 30.11.1994 the swami came to Delhi from Rishikesh in
\nhis car, which was driven by Makhan Lal, and at about 12\/12:30 PM reached Patel Nagar.
\nLeaving Makhan Lal in the car at some distance, he visited Savita’s house and remained there
\ntill 2:30\/3:00 AM, and they hatched another plan to kill Manoj, according to which, on the
\nnight of 02.12.1994 the swami, in his car (driven by accused Raj Kumar) reached his (Raj<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                         Page 3
\n Kumar’s) factory at Nariana and took accused Om Prakash @ Omi and Ashutosh Banerjee @
\nPappu who were armed with knives. All of them went to the Savita’s house, at West Patel
\nNagar. Leaving Raj Kumar in the car, the swami, Omi and Pappu went to the first floor of
\nSavita’s house, the door of which had, as per previous plan, been left open, (since Savita was
\nwaiting for the other accused). Upon their reaching the premises, she switched off the
\nbedroom light and took the co-accused to the drawing room where the deceased was sleeping
\non the diwan. All the three accused showered knife blows on the body of Manoj, and when he
\ntried to protest. The swami caught Manoj’s foot with his hands, and on receiving knife blows,
\nhe fell down from the bed and died. The swami sent accused Omi and Pappu downstairs and
\nwhen he saw that Manoj was not dead, he gave another knife blow to him; after satisfying
\nhimself that Manoj had died, and in order to give the incident the shape of dacoity, he took
\nSavita’s ornaments from the almirah and scattered the empty boxes on the bed and also tore
\nSavita’s nighty. He gave some ornaments to accused Omi and Pappu and left them at
\nNariana.\n<\/p>\n
6.     The prosecution also alleged that after committing the murder, the swami, with his
\ndriver Makhan Lal left for Rishikesh. On reaching, the swami threw the knife in the bushes
\nbehind his Ashram. He kept the ornaments in his almirah and after washing the clothes
\nwhich, he was wearing at the time of incident, hid them. He attended Manoj’s cremation
\nceremony and lived for some days in the Ashram of his Gurubhai Devendranand Giri at
\nBahadurgah, Makhan Lal got introduced the swami, to the accused Jagdish Lal Sharma who
\nintroduced himself as Inspector from the CBI and he with the help of Makhan Lal started
\nextorting the swami. After recording the telephonic conversation in audio cassettes between
\nMakhan lal and Jagdish Lal Sharma, they both were arrested. The swami is alleged to have
\nled to recovery of the knife used in the incident and the jewellery taken away from Savita’s
\nhouse. The prosecution filed charges in the Court. Subsequently, accused Om Prakash @
\nOmi was also arrested and the challan was filed in the Court and the case was committed to
\nthe Court of Sessions. Makhan Lal and Jagdish Lal Sharma were remanded for their trial to
\nthe Court of concerned Metropolitan Magistrate by order dated 22.12.1998, Additional
\nSessions Judge, Delhi as the offences alleged against them were only under section
\n176\/202\/384\/419, IPC which were exclusively triable by the Metropolitan Magistrate.
\nCharges under Section 302\/120B IPC were framed against all the accused persons on
\n04.05.1999, to which they all pleaded not guilty and claimed a trial. Hence the trial
\ncommenced against them. The swami, and Ashutosh Banerjee were separately charged for<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                     Page 4
\n offence under section 404 IPC and 27\/54\/59 of Arms Act. Accused Ravi Chauhan was also
\nseparately charged for offence under Section 307 and 404 IPC. Similarly accused Om
\nPrakash was also separately charged for offence under Section 404 IPC. Accused Savita was
\nseparately charged for offence under section 203 IPC. All accused entered the plea of not
\nguilty to their separate charges and claimed a trial.\n<\/p>\n
7.        The prosecution relied on the evidence of 48 witnesses to establish the charges framed
\nagainst the accused. Since its case was based entirely on circumstantial evidence, it was
\nsought to be proved by evidence in that regard. Broadly, the following circumstances were
\nsought to be made out through prosecution evidence:\n<\/p>\n
(1)       Proximity between Savita and the swami, for a long time, before the former’s
\nmarriage to the deceased, during which they developed intimacy;\n<\/p>\n
(2)       Conspiracy hatched by the swami and Savita, to have Manoj murdered. The first step
\ntowards this, was the incident of 15.11.1994, when the deceased was shot at while driving a
\nscooter, and injured at the back. The attempt was on his life, but was unsuccessful. The
\nprosecution alleged that Savita prevailed on other family members to refrain from reporting
\nthe incident to the police.\n<\/p>\n
(3)       Planning, by the swami and Savita, prior to the incident, whereby the former visited
\nthe latter, on late 30th November, 1994, and hatched a conspiracy. He stayed with her till the
\nearly hours of the next morning.\n<\/p>\n
(4)       Involvement of other co-accused, and the swami, in the murderous attack which took
\nplace on the night of 02-03.12.1994, on Manoj, which resulted in his death, and the later
\ncover-up by them, to give the impression of a robbery and looting of jewellery. Savita aided
\nthe co-accused, by ensuring that the first floor door was left unlocked, to facilitate the crime.
\n(5)       Attempt by Savita to hide the previous incident, of 15.11.1994, when reporting the
\nmatter to the police. The police did not have any concrete clue, and the investigating officer
\nchanged.\n<\/p>\n
(6)       Interception of telephonic conversation between the swami and Jagdish, and other
\nconversation, leading to recovery of letter from Rama Bajaj, the arrest of swami, his
\ndisclosure statement, leading to recovery of the murder weapon, and jewellery looted from
\nthe premises, on the date of incident, and the subsequent arrest of other co-accused, including
\nSavita.\n<\/p>\n
8.        The trial court convicted the four appellants, holding that the prosecution was able to
\nprove all the circumstances, which pointed to their guilt and involvement in the murder of the<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                         Page 5
\n deceased. It was held that Savita’s conduct and role in successfully ensuring that the previous
\nattempt at the life of the deceased, which occurred on 15.11.1994, stood established. It also
\nfound that the version given by Savita about the manner in which the incident took place,
\nwhen allegedly the assailants entered the first floor, of the premises, started to rob jewellery,
\nand upon being challenged by Manoj, when one of them sought to molest her, by raining
\nknife blows on him, was falsified by the circumstantial evidence. In this regard, the trial court
\ntook into consideration the evidence such as to say that the couple had a strained marital
\nrelationship, the nature of injuries which led to the death of Manoj, the fact that there was no
\nforcible entry into the house at 1:30 AM, in the morning, the statements of PW-15 about how
\nthe outside door was unlocked, the telephonic conversations which the swami had, leading to
\nrecovery of a letter, PW-37\/R, the interrogation and detention of swami, the disclosure
\nstatement made by him, leading to recovery of jewellery articles, their identification by PW-3
\n(Manoj’s father), the arrest and disclosure statements of Ravi Chauhan and Ashutosh, all
\nproved the circumstances conclusively and unerringly to the guilt of the four appellants. The
\ntrial court accordingly recorded their conviction under Section 302 read with Section 34, and
\nalso recorded the acquittal of Ravi Chauhan, in respect of the charge under Section 307 IPC.
\nIt convicted Savita under Section 203 IPC, and acquitted the accused charged for the offence
\nunder Section 404, IPC.\n<\/p>\n
Appellants’ arguments\n<\/p>\n
9.     All the appellants argue that the first circumstance put forward in the case is the
\nlinking of the 15.11.1994 incident with Manoj’s murder, and their alleged complicity in that
\nincident. It is pointed out firstly that the accused charged with the said attempt was Ravi
\nChauhan; the Court recorded his acquittal. In the circumstances, the charge of conspiracy had
\nto be established with strong and cogent evidence.\n<\/p>\n
10.    It is submitted, primarily by Savita’s counsel, in this regard that the evidence put
\nforward against her was her alleged reluctance in reporting the matter to the police, and
\nconvincing the other family members against such reporting. It was urged, here, that PW-1,
\nthe deceased’s mother had deposed on this aspect, and her testimony was unreliable, since
\nshe contradicted herself on this issue. On the one hand, in her examination-in-chief, she
\nclearly stated that Savita did not want the incident reported, since the couple was newly
\nmarried; yet, at a later point in time, in her deposition, she clearly stated that the decision not
\nto report the attempt was collectively taken by the family. It was submitted that the<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                          Page 6
\n prosecution had tried to say that Savita did not report the failed attempt, even when the
\nmurderous incident of 02.12.1994 was intimated to the police, and that this was reported by
\nPW-15. Arguing that this was not established, it was submitted that the depositions of
\nwitnesses showed that Savita, in fact, handed over the windcheater and other articles of
\nclothing, of the deceased Manoj, in respect of the previous attempt of 15.11.1994, when
\nasked to do so. It is also urged that the later version on this, viz. that the entire family
\ncollectively decided not to report the incident, is plausible, since PW-15 and PW-16 have not
\nsupported PW-1’s version on this aspect, and further that PW-3, the deceased’s father, who
\nwas staying away from the family, at Agra, was not even aware of the whole incident of the
\nfailed attempt on the accused’s life, on 15.11.1994. Counsel further argued that the trial court
\ncompletely misdirected itself, in selectively appreciating the evidence of the prosecution
\nwitnesses, and applying itself to the examination-in-chief, completely ignoring the entire
\ndepositions, which included the cross-examination conducted on behalf of the
\naccused\/appellants. Learned counsel also argued that the evidence of PW-1 cannot be relied
\non, because her statement was recorded on three different dates, namely 11.02.1995, in
\nAugust, and later, in December, 1995. Not only did she materially contradict herself in these
\nthree statements, in the form of omissions, and improvements, but later contradicted herself,
\nas well as other witnesses during the trial. It is argued that indeed, if this witness and the
\nother relatives of the deceased had suspected Savita and the swami, there was no reason, why
\nthis should not have been voiced by them when the police recorded the statements, on these
\nseparate dates. Furthermore, the voluntary manner in which Savita gave the deceased’s
\narticles of clothing, to facilitate investigation into the previous incident, falsified the
\nprosecution argument that she suppressed the previous incident deliberately.\n<\/p>\n
11.    On this aspect, it was contended that a statement, or omission of an accused, (on any
\naspect relating to an offence), who was the informant reporting the crime, and recorded as
\npart of the FIR, is inadmissible, as against the said accused, as hit by Section 162 of the
\nCriminal Procedure Code. Here, reliance was placed on the judgment of the Supreme Court
\nreported as Nissar Ali v. The State of Uttar Pradesh, AIR 1957 SC 366 to say that a First
\nInformation Report is not a substantive piece of evidence and can only be used to corroborate
\nthe statement of the maker under S. 157 of the Evidence Act or to contradict it. Reliance is
\nalso placed upon the ruling in K.A. Vish v. State of Maharastra, AIR 1971 SC 2256, where
\nthe Supreme Court held that an accused’s previous statement can be used for contradicting
\nhim, but even that part of evidence cannot be used against him, as substantive evidence. For<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 7
\n the same proposition, reliance was placed on Agnoo Nagesia v. State of Bihar, AIR 1966 SC
\n119; and Bandlamuddi Atchuta Ramaiah v. State of A.P., 1997 SCC (Cri) 128.\n<\/p>\n
12.    Savita’s counsel next argued that the trial court’s conclusions about the false reporting
\nof the manner in which the attack took place, based on the theory of conspiracy, is also
\nerroneous. It was submitted that according to PW-15, accused Savita opened the door from
\nthe inside. The prosecution version that she had kept the outer door unlocked, and the gate to
\nthe first floor, based on the sketch placed on the record, could not be believed. It was
\nsubmitted in this regard that the trial court disbelieved the immediate statement or version of
\nSavita, and drew its conclusions based on shaky facts, which were not proved. Counsel
\nsubmitted that PW-15’s evidence pointed to the street door being open, at the time of the
\nincident and that the premises had a second floor tenant, who was not examined. It was also
\nargued that the prosecution did not have any cogent evidence, or even theory to back its story
\nabout Savita having kept the first floor door open, to facilitate the intruders’ entry into the
\npremises. In this regard, it was submitted that the evidence of PW-15 also showed that the
\nwall adjoining the gate of the first floor was only 3 feet high. It was also submitted that the
\nreconstruction of the crime, sought to be established by Ex. 32\/A sketch, could not have been
\nrelied on by the trial court, since the witnesses who prepared the document, could not have
\npin-pointed the exact spots where the incident occurred at different stages, since he prepared
\nit on much later, on 05.01.1995, and as the notes on the exhibit reveal, at the instance of the
\naccused Savita. It was submitted that to the extent a map, or sketch reflect the location of
\narticles of furniture and other objects, and are recorded or drawn immediately after the
\nincident, or contemporaneously, they might be admissible. However, where the map or sketch
\nseek to recreate the scene of occurrence, and is drawn on the basis of statements of any
\nperson or witness, who narrates it, the same cannot be considered by the Court, unless such
\nperson or witness also corroborates it. Learned counsel relied on the judgments reported as
\nTori Singh v. State of U.P., AIR 1962 SC 399, where it was held that the marking of a spot on
\nthe sketch-map, about the event or incident in question, amounts to conclusion of the
\ndraftsman on the basis of the statements made by the witnesses to him, which would be
\ninadmissible in view of Section 162 of the Code of Criminal Procedure. Counsel also relied
\non Jagdish Narain v. State of U.P., 1996 (8) SCC 199, for the same purpose. It was further
\nsubmitted that the sketch and the narrative of PW-15, who was uncertain about whether the
\ndoor was latched or not, and lack of exact description of the entire house, the various entries
\nto it, and the various doors on the first floor, as well as the police’s omission to investigate
\nwhether someone could have entered from the adjoining wall, by jumping, or whether indeed<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 8
\n any of the entrances leading to the first floor were open or accessible, renders the theory
\nabout Savita having conspired to keep open the entrance, or door, suspect, and the trial court
\nought not to have accepted the prosecution version about this.\n<\/p>\n
13.    It was argued that the alleged recovery of jewellery and their identification leading to
\nthe prosecution theory, readily accepted by the trial court, is untenable, and the findings on
\nthis are erroneous. Arguing that the identity of the jewellery was not established, Savita’s
\ncounsel emphasized that PW-1, the deceased’s mother was unaware about her jewellery. She
\ndid not reside in Delhi, and used to live with her husband in Agra. It was submitted that when
\nshe was asked to describe her jewellery, and that of Savita, the witness had no convincing
\nanswer. It was urged that even PW-3, her husband, was in fact unaware of the details of the
\njewellery, and relied on Savita herself – a fact admitted to by him in the cross-examination.
\nLearned counsel submitted that the details of jewellery never saw the light of the day in the
\nstatements made by PW-3 on two dates after the incident, i.e. 25.12.1995 and 11.02.1995. It
\nwas only on 04.04.1995, after the investigating officer had changed and Inspector Rajbir
\n(PW-45) assumed charge that the witness mentioned generally about the nature of jewellery
\nlooted. It was urged that if indeed the details were unknown, and he obtained the particulars
\nfrom Savita, there was a material contradiction in the prosecution story, because Savita went
\naway to her parents’ place about a month after the incident, as per the version of PW-1.
\nFurthermore, the prosecution witnesses, particularly PW-1 and PW-15 had stated that they
\nsuspected Savita. In these circumstances, the question of obtaining any details of the
\njewellery lost or stolen, from her could not have arisen. It was also argued that PW-3 had
\nstated that he purchased jewellery from R.R. Jewellers, and was familiar with it. If indeed this
\nwere true, there was no question why he should not have been able to furnish these
\nparticulars to the prosecution in the first two statements recorded in the case; nor did anything
\nprevent the prosecution from examining R.R. Jewllers, to prove the identity of the ornaments.
\nIt was further argued that the prosecution did not attempt to show the video-tape of the
\nmarriage ceremonies, between Savita and the deceased, which could have facilitated
\nidentification of the jewellery articles. Learned counsel stated that Savita had volunteered
\nduring the trial to wear the articles, particularly bangle or karha, which was not permitted. It
\nwas also argued that having regard to the normal course of conduct, and the deposition of
\nPW-1, it was improbable that PW-3 could have identified any jewellery, and that being the
\nfather-in-law, it was natural for him not to be aware of the details of jewellery. In normal
\nhouseholds, such details would be known by the female members; in the present case, PW-1<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 9
\n would have most likely been aware of these items. Her complete ignorance about the
\nallegedly recovered jewellery, as indeed her own jewellery gave a lie to the prosecution story
\nabout recovery of jewellery. It was also argued that the prosecution was unable to establish
\nconvincingly that the jewellery articles Ex. P-1 to Ex. P-29 had been judiciously mixed with
\nother ornaments, procured from an independent source. Counsel also argued that the TIP
\nconducted by the prosecution, in this regard, on 15.11.1995, was clearly delayed, and
\nfurthermore that PW-3 was present without notice for this exercise. All these cast grave
\ndoubts about the prosecution version that the jewellery produced in the Court were in fact
\nrecovered at the instance of one or the other accused, and that the accused Savita owned any
\nof them. The appellants further submitted that neither the wedding album, nor the videos of
\nthe wedding function were produced or exhibited, as surely they would have shed light on the
\nkind of jewellery that Savita was wearing during the marriage. It was emphasized by counsel
\nfor appellants in this regard that the trial court has acquitted all the Appellants\/accused of the
\ncharge framed under Section 404, IPC.\n<\/p>\n
14.    Learned counsel submitted next that the prosecution version of a conspiracy between
\nthe co-accused at various stages, is flawed and not established. The appellants complained, in
\nthis regard that the trial court erred in not seeing that there was no concrete allegation as to
\nwhen the alleged conspiracy commenced, and that the prosecution relied on post event
\ndevelopments and facts, such as alleged tape recorded conversation between the swami and
\nothers. It was argued that the evidence, such as transcripts of post incident conversations,
\nletters said to have been recovered from Savita, and one Ms. Rama Bajaj, PW-21, written by
\nthe swami, are concededly after the incident, and cannot be used as material to establish
\nconspiracy, in view of Section 10 of the Evidence Act, and the rulings of the Supreme Court
\nin Sardul Singh Caveeshar v. State of Bombay, AIR<\/a> 1957 SC 747 where it was held:\n<\/p>\n
       “The limits of the admissibility of evidence in conspiracy case under S. 10 of the
\n       Evidence Act have been authoritatively laid down by the Privy Council in Mirza King
\n       v. King Emperor (supra). In that case their Lordships of the Privy Council held that
\n       Sec. 10 of the Evidence Act must be construed in accordance with the principle that
\n       the thing done, written or spoken was something done in carrying out the conspiracy
\n       and was receivable as a step in the proof of the conspiracy. They notice that evidence
\n       receivable under S. 10 of the Evidence Act of “anything said, done or written, by any
\n       one of such persons” (i.e. conspirators) must be “in reference to their common
\n       intention”. But their Lordships held that in the context (notwithstanding the amplitude
\n       of the above phrase) the words therein are not capable of being widely construed
\n       having regard to the well known principle above enunciated.”\n<\/p><\/blockquote>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 10
\n The above ruling, submitted the appellants, was followed in other cases, State of Gujarat v.\n<\/p><\/blockquote>\n
Mohammed Atik, AIR 1998 SC 1686 and Saju v. State of Kerala, 2001 (1) SCC 378. It was
\nalso urged that the theory of conspiracy, the attempt of the prosecution to prove a clandestine
\nmeeting or tryst between Savita and Swami, sought to be established through the evidence of
\nPW-13 and PW-31 could not stand judicial scrutiny. It was submitted, in this regard, that the
\nstar witness to prove the meeting prior to the incident, on 30th November, 1994, was Krishna
\nBudhiraja, PW-34, who did not support the prosecution version, and was declared hostile. No
\nadmission was elicited by the prosecution from her, though it sought, and was granted leave
\nto cross-examine her.\n<\/p>\n
15.    It was submitted next, that the prosecution failed to prove the tape recordings, which
\nled to the alleged seizures, and that such recordings were indeed that of the accused. It was
\nsubmitted, in this context, that no authorization of the competent authority or court was
\nobtained; the transcript sought to be produced and relied upon did not show that it was
\nrecorded in a manner, which could eliminate any doubt about tampering. It was urged that the
\ntranscript made available to the Court, and on record the judicial file, does not indicate or
\ndemarcate the conversations of various individuals. Learned counsel also urged that the
\nprosecution attempt to prove that the Appellant Savita had spoken to the swami, did not
\nestablish such allegation, because Ms. Porus, PW-44 could not identify the lady who
\nallegedly made the phone calls from her centre; no telephone numbers linking the Appellant
\nSavita with any calls was shown. The documents relied, if at all could at best show that two
\ncalls were booked to some number in Rishikesh. Such evidence was tenuous to establish any
\nconnection between the Appellant Savita and the Swami.\n<\/p>\n
16.    Learned counsel argued that the trial court committed a serious error in not seeing that
\nthe recovery memo PW-21\/A was spoken to by PW-21 Rama Bajaj; it related only to an
\nenvelope allegedly recovered from her (the witnesses’) premises, addressed to Savita. The
\nletter was allegedly written by the swami. Yet, neither the receiver (PW-21, who according to
\nthe prosecution had to deliver it to Savita) nor the courier, i.e. a disciple of the swami, spoke
\nabout it. It is alleged that the witness to the alleged recovery only spoke about the seizure of
\nan envelope; she did not depose anything regarding a letter found in that envelope, which was
\nsought to be proved as Ex. PW-37\/R. The only person who could have spoken about it, was
\nPW-21; she did not depose about it; the prosecution did not cross-examine her on this, if it
\nfelt that her deposition differed with its version. PW-45 deposed that the letter was recovered
\nfrom the premises of PW-21; however, this version differed from what was said by the<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 11
\n witness herself. More importantly, submitted learned counsel, the trial court did not put the
\nletter to the Appellant Savita, in Section 313 of the Code of Criminal Procedure. It was
\npointed out that the trial court queried the recovery of PW-37\/R, as if it had been recovered
\nfrom her (the Appellant Savita’s) possession, which was fatal to the whole theory of
\nconspiracy. It was argued that not asking Savita about the recovery of PW-37\/R from her, in
\nthe statement under Section 313 was fatal to the prosecution story. In this regard, the counsel
\nrelied on the decision reported as Sharad Birdichand Sarda v. State of Maharastra, 1984 (4)
\nSCC 116. Counsel submitted that in these circumstances, it would be hazardous for the court
\nto rely on the testimony of PW-45, Rajbir, who was known as the “encounter specialist”
\nnotorious for foisting false evidence, and creating “encounter” situations to kill suspected
\ncriminals. It was argued (in reply to the prosecution rebuttal of the argument regarding
\nSection 313, Cr. PC) that even if the court were to for a moment go by the prosecution
\nsuggestion, and question the Appellant, PW-45 cannot be cross examined, or confronted with
\nany other evidence, since he has died during the pendency of these appeals.\n<\/p>\n
17.    It was argued that the conspiracy and premeditation angle was ruled out in this case,
\nbecause Savita had always co-operated with the police, and given statements. The
\nprosecution’s attempt to implicate her in the previous attack, it was urged, was untenable,
\nbecause she handed over Manoj’s clothes, voluntarily. She did not deny the previous
\n15.11.1994 incident involving an attempt on Manoj’s life. Furthermore, submitted learned
\ncounsel, the recovery and identification of jewellery was shrouded with too many question
\nmarks. It was emphasized that the attempt to have the jewellery articles identified would have
\nbeen authentic, if the police had seized the marriage video tapes, which were admittedly
\navailable. A visual comparison of the jewellery in the video with what was allegedly
\nrecovered would have confirmed if indeed, they were looted from the deceased’s premises.
\nFurther, submitted counsel for the appellant, it was improbable that the jewellery could be
\nrecovered from the swami’s ashram, in Haridwar, after nearly 10 months of the date of
\nincident. It was also submitted that the other incriminating evidence, in the form of two
\nletters, Ex. PW-37\/E1 to E-28, as well as Ex. PW-37\/F1 to F3, in fact contained nothing
\ninculpatory, which could have led the trial court to conclude the guilt of the accused.\n<\/p>\n
18.    It was submitted that the main prosecution witnesses’ depositions could not have been
\ntaken into consideration. Both of them, i.e. the parents of the deceased, did not state the
\ncomplete facts, and kept improving various versions in statements recorded under Section
\n161 Cr PC. At different points in time statements were made, which were inconsistent and at<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 12
\n variance with each other. Particularly, submitted counsel, PW-1’s evidence and further that of
\nPW-3, are unreliable, and could not have been the basis for convicting the accused.\n<\/p>\n
19.    Counsel submitted that the Trial court’s approach in not considering the evidence of
\nprosecution witnesses who were declared as hostile, is contrary to law, and that the court
\nshould take that into consideration the deposition if the witness is otherwise credible. For this
\npurpose, reliance was placed on the decision reported as Sat Paul v. Delhi Administration,
\nAIR<\/a> 1976 SC 294. Counsel next submitted that selective appreciation of depositions of
\nwitnesses, by considering only their examination-in-chief, and not taking into account the
\ncross-examination, is legally indefensible. It was argued that the procedure, as laid down
\nunder the Evidence Act, is clear and unambiguous. Under the Evidence Act, evidence means
\nthe examination-in-chief and cross-examination and that such statement alone will form
\nevidence. In this regard, the judgment reported as Ripen Kumar v. Department of Customs,
\n2001 (107) Cr. LJ 1288 has been relied on.\n<\/p>\n
20.    It was urged that in cases involving circumstantial evidence, it is imperative for the
\nprosecution to prove motive, as an important link or element, which led to the crime. In this
\ncase, urged the counsel, apart from urging the existence of an illicit relationship between the
\nSwami and Savita, there was no shred of legally permissible evidence, which could remotely
\nprove that allegation, let alone permit the Court to harbor a reasonable suspicion. In this
\ncontext, Ms. John argued that the deposition of PW-1 showed that in her statement recorded
\nat the earliest point in time, i.e. 11.02.1995, no suspicion about the alleged estrangement of
\nthe couple (i.e. Savita and Manoj); their returning from the honeymoon early, their allegedly
\nsleeping separately, frequent telephone calls by the swami, were deposed. These elements
\nwere deliberately introduced as afterthoughts, much later, after due reflection. The witnesses
\nwho could have deposed, did not say anything in regard to the meetings between the two
\naccused, i.e. Savita and the swami. The letter most strongly relied on by the prosecution was
\ndoubly inadmissible, by reason of its not having been put to the concerned accused; moreover
\nit was admittedly a post conspiracy event, or material, which could not have permitted
\nspeculation of conspiracy at a prior point in time.\n<\/p>\n
21.    Mr. Mukesh Kalia, learned counsel for the swami, in addition to adopting the
\narguments of Ms. Rebecca John, also urged that the three circumstances, which were sought
\nto be put forward as incriminating him (the swami) were not proved at all. It was submitted
\nthat there was a long delay in recording the testimony of PW-1; her first Section 161
\nstatement did not implicate the swami, nor did it attribute any role or voice any suspicion.
\nThe second statement was recorded almost 9 months after the incident, and for the first time,<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 13
\n she claimed that the swami had been suspected by members of the family all along. It was
\nsubmitted that the alleged conversations, said to have taken place between the two, i.e. Savita
\nand the swami, were not proved; similarly the letters written by the swami, Ex. PW-37\/E1 to
\nE-28 contained no inculpatory matter or hint of conspiracy or objectionable relationship. It
\nwas submitted that in fact Ex. PW-37\/R was not even put to the swami, in questioning, under
\nSection 313, Cr. PC.\n<\/p>\n
22.    Learned counsel argued that the so called telephonic conversations, the transcripts of
\nwhich were relied on by the prosecution, are inadmissible. In this respect, it was submitted
\nthat there was no proof, or connecting material to establish that Telephone Number 31925
\nwas installed at the Ashram of the swami. The transcripts nowhere reveal any role of the
\nswami or Savita, in the crime. Importantly , submitted the counsel, no one from the telephone
\nexchange, at Rishikesh was examined, in the trial to prove that the recording in fact took
\nplace, as alleged in this case. Lastly, submitted the counsel, the transcripts cannot be co-
\nrelated with the voice of any one accused. Arguing about admissibility of such telephone
\nrecordings, their cassettes, or transcripts, the appellants’ counsel submitted that the decision
\nin Mahavir Prasad Verma v. Surinder Kaur, AIR<\/a> 1982 SC 1043 and of a Division Bench of
\nthis Court, in State v. Ravi, 2000 (1) AD (Del) 222 have ruled that tape recorded
\nconversations can be relied upon as corroborative evidence of conversation deposed to by
\nparties to the conversation and in the absence of evidence (of such conversation) the tape
\nrecording is not proper evidence, and cannot be relied on. Similarly, the judgments reported
\nas R.M. Malkani v. State of Maharastra, AIR 1973 SC 417; Ziyauddin Burhanuddin Bukhari
\nv. Brijmohan Ramdass Mehra, AIR<\/a> 1975 SC 1788 and Ram Singh v. Col. Ram Singh, AIR
\n1986 SC 3 have been relied on to show what are the material tests for a tape recording to be
\nadmissible, as evidence. The Court had indicated that the fulfillment of the following
\npreconditions was essential for a tape recording to be admissible in a trial:\n<\/p>\n
       a) the voice of the speaker must be duly identified by the maker of the record or by
\n       others who recognize his voice. Where the maker has denied the voice it will require
\n       very strict proof to determine whether or not it was really the voice of the speaker.\n<\/p><\/blockquote>\n
       b) The accuracy of the tape recorded statement has to be proved by the maker of the
\n       record by satisfactory evidence direct or circumstantial.\n<\/p><\/blockquote>\n
       c) Every possibility of tempering with or erasure of a part of a tape recorded statement
\n       must be ruled out otherwise it may render the said statement out of context and,
\n       therefore, inadmissible.\n<\/p><\/blockquote>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                      Page 14\n<\/p><\/blockquote>\n
        d) The statement must be relevant according to the rules of Evidence Act.\n<\/p><\/blockquote>\n
       e) The recorded cassette must be carefully sealed and kept in safe or official custody.\n<\/p><\/blockquote>\n
       f) The voice of the speaker should be clearly audible and not lost or distorted by other
\n       sounds or disturbance.\n<\/p><\/blockquote>\n
23.    Dealing next with the alleged recovery of ornaments, learned counsel reiterated the
\nsubmissions made by Savita’s counsel, and also argued that Manoj’s mother could not prove
\nthe ornaments, including her own ornaments. Furthermore, submitted the counsel the alleged
\nrecovery of eight gold bangles, 2 gold karas, one gold necklace, one gold mangal sutra and
\none gold chain, were utterly improbable, since no one involved in a crime, as the present one,
\nwould continue to keep such allegedly stolen property for such a long time, and would
\ndispose it of at the earliest available opportunity. It was also submitted that there were no
\nmembers of the public involved as a witness for the recoveries; all the recoveries were
\nallegedly witnessed by PW-39, PW-37, and PW-45, who were policemen. It was further
\nsubmitted that the depositions of these witnesses were supposed to have recorded that the
\nswami led them to the place where the articles were hidden. In this context, argued Mr. Kalia,
\nthe so called disciple who had the key to the place where the articles were kept, was not
\nproduced, even though the prosecution alleged that they had to wait for the room in the
\nashram to be opened. It was emphasized that the exoneration and acquittal recorded under
\nSection 404, IPC falsified the entire story about the accused Swami having been a witness to
\nthe crime, and also a co-conspirator, who is supposed to have kept jewellery articles found at
\nthe scene of crime. It was argued here that once the trial court recorded acquittal under
\nSection 404, IPC, there was no question of holding that the swami was involved in a
\nconspiracy, to murder, on the same facts.\n<\/p>\n
24.    Mr. Kalia also argued that the prosecution could not establish that the swami had any
\nprior meeting with Savita, as to lead the Court to consider the possibility of a conspiracy. In
\nthis regard, he argued that the so called tryst alleged by the prosecution, which is supposed to
\nhave been held on 30.11.1994, was not proved. Similarly, the swami’s role, either as a
\nparticipant, or in the background as a conspirator to murder had not been established.
\nSimilarly, submitted the counsel, the recovery of a dagger, alleged against the swami, was
\nunbelievable, because no one committing a murder in his senses, would hide the weapon of
\noffence near his place (as in the present case the weapon allegedly thrown by the swami in
\nthe bushes behind his ashram), when the opportunity of conveniently disposing it off, i.e.
\nthrowing it in the river, is available to him. Further, it was submitted that the prosecution case<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 15
\n about use of a dagger, for killing Manoj, is falsified by the FSL report, which revealed that
\nthe blood stain on the dagger did not show any reaction, on its testing.\n<\/p>\n
25.    Learned counsel for the Appellant Asutosh argued that the prosecution has not been
\nable to prove any role played by him. It is submitted that the said Appellant was supposedly
\narrested due to the statement recorded by the swami; however, no public witness was
\nassociated with his arrest. Counsel argued that similarly, PW-4 had not stated in his statement
\nrecorded under Section 161, Cr. P.C. about depositing the jewellery items. Learned counsel
\nalso pointed out that the evidence on record showed that the IO and the police party, which is
\nalleged to have gone to Haridwar for investigation, did not use any official police vehicle; no
\nauthorization too was proved to have been given by any superior officer, for the said
\ninvestigation. It is submitted that in fact no record or document, stating that they requested
\npermission, or intimated about the visit to Hardwar is on record; this is significant, because
\nthe investigating team was not in hot chase, as the crime had occurred over 10 months prior
\nto the visit.   Counsel submitted that the entries in the malkhana register too were
\nmanipulated.\n<\/p>\n
26.    Arguing that the entire story about Asutosh’s arrest and so called confessional
\nstatements were concocted, learned counsel submitted that the deposition of PW-29 showed
\nthat the said appellant was allegedly arrested pursuant to Ravi Chauhan’s statement.
\nHowever, submitted learned counsel, none of its witnesses were able to give any details of
\nparticulars about the factory such as its name proprietor and so on. In these circumstances the
\nvague allegation of the witnesses that the arrest was made at a particular address in a gatta
\n(cardboard) factory could not be believed. He further stated that the alleged recovery of
\njewellery from the place of arrest is falsified by PW-29 admitting that his previous statement
\nnowhere reflected that such articles were sealed – a fact which he sought to improve upon,
\nand introduce for the first time in the prosecution testimony. Similarly, submitted the counsel,
\nthe description of articles – particularly the alleged weight of jewellery recovered from
\nAshutosh’s premises were not even mentioned in the recovery memo, (PW-26\/E) even
\nthough PW-26 specifically stated it to be 46 grams.\n<\/p>\n
27.    It was submitted that the entire conviction of Ashutosh rested on the recoveries
\nallegedly made by the prosecution pursuant to his disclosure statement, and the identification
\nof jewellery. The dagger allegedly seized from him could not be linked with the offence,
\naccording to the serological report. In the circumstances, there was nothing to link him with
\nany alleged conspiracy, the origin of which was not proved. To cap it all, the use by the Trial
\nCourt, of the statement of co-accused, which was inadmissible, for implicating him, resulted<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                      Page 16
\n in serious error. It was also argued that the impugned judgment itself acquitted Ashutosh of
\nthe offence under Section 404, IPC. In the circumstances, the recovery of articles, and their
\nlinkage with the crime had not been proved. Therefore, the prosecution, without filing an
\nappeal, could not rely on the said alleged circumstances relating to the discovery of jewellery
\narticles that were allegedly looted. The counsel submitted that significantly, no one claimed
\nthe articles – not even the prosecution witnesses such as PW-1 or PW-3. This meant that the
\njewellery was unconnected with the crime; the trial court directed its confiscation to the state.\n<\/p>\n
28.    Ms. Charu Verma, learned counsel for the appellant Ravi Chauhan, argued that the
\nprosecution version about the arrest of the accused\/appellant is not credible. PW-29 also
\ndeposed that the building from where the arrest was made, consisted of several tenements,
\nwhere families resided. Despite availability of members of the public, the police did not
\ninvolve anyone other than official witnesses to the arrest and subsequent alleged recoveries. It
\nis further argued that the plan pertaining to the crime scene in the incident had not been
\nproved contrary to the findings of the trial court. In this regard, learned counsel reiterated the
\nsubmissions made by the appellant swami’s counsel. Speaking about this aspect, it was urged
\nthat the mere “pointing out” of the alleged crime scene, or place of occurrence was an
\nimpermissible evidence, which could not be used to convict an accused.\n<\/p>\n
29.    Ravi Chauhan’s counsel next argued that the confessional statement of the swami
\ncould not have been used as a valid piece of evidence against him to prove anything, or even
\na conspiracy. It was pointed out also, that Ex. PW-26\/C which describes the recoveries made
\nat the behest of Ravi Chauhan states that they comprised of six ladies’, and two gents rings;
\nhowever, PW-1 did not mention about the loss of any ring.\n<\/p>\n
30.    Relying on the decision reported as Sanwat Khan v. State of Rajasthan, AIR<\/a> 1956 SC
\n54, it was argued that any conviction based on recoveries alone should not be rendered,
\nunless corroborated by other reliable evidence. Citing S. Arul Raja v. State of Tamil Nadu,
\n2010 (7) SCALE 10, it was submitted that to punish one for the actions of another, on the
\nground that he was a conspirator, there should be acceptable and credible evidence of such
\nagreement, before the Court. It was argued that in this case, there is no evidence linking the
\nswami with Ravi Chauhan, save and except the former’s statement, which is inadmissible.\n<\/p>\n
Prosecution arguments\n<\/p>\n
31.    Mr. Lovkesh Sawhney, the learned APP, submitted that though the prosecution case
\nwas based on circumstantial evidence, all the circumstances here were proved – as well as the
\nlink between each of them – beyond reasonable doubt. It was submitted that Savita and the<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 17
\n swami knew each other before the former’s marriage, and were on intimate terms, the
\nrelationship being more than a guru and his disciple. The evidence on record, particularly of
\nthe deceased’s family members, showed that this association continued even after marriage,
\nas Savita used to hold long telephonic conversations with the swami. The evidence, of PW-1
\nalso established that the newly-wed couple returned earlier than scheduled from the
\nhoneymoon; they were also not having a conjugal relationship and Manoj used to sleep on the
\ndiwan and not with Savita. It was argued that the swami, Savita, and other conspirators
\nhatched a plan to murder Manoj. The first attempt was abortive, since the plan misfired, and
\nManoj was injured, though not fatally, due to the gun shot fired at him on 15.11.1994, when
\non motorcycle (from which Savita got down, on the pretext of retrieving her chappal,
\naffording the attacker to shoot him). Savita was instrumental in seeing that the matter was not
\nreported to the police, as was testified by other members of Manoj’s family. Thereafter,
\nSavita and the swami met clandestinely, on 30th November, 1994, in Patel Nagar, at night,
\nwhen the plan that ultimately led to the attack took place. In the intervening night of 2\/3rd
\nDecember, 1994, according to plan, Savita had kept the outer entry door of the first floor
\nopen, to facilitate easy access to the assailants, who were let in by her. The evidence pointed
\nto there being no forcible entry; the assailants, including the swami, walked to where Manoj
\nwas sleeping, and mercilessly stabbed him, at various places, mostly in the neck, resulting in
\nfatal injuries. To cover up, a false bogey of attempt to molest Savita was raised and also the
\ncase of alleged looting, made out. Savita tried to suppress the previous attempted murder, by
\nnot mentioning the incident of 15.11.1994. During the investigation, the police recorded the
\nstatements of the parents of Manoj, i.e. PW-1 and PW-3, as well as his uncle and aunt, i.e.
\nPW-15 and PW-16. The statement of his cousin, PW-18, too was recorded. For quite
\nsometime, no headway could be made in the investigation. In the meanwhile, the IO in-
\ncharge of the case, changed; PW-45 took over. The police received a tip off about attempted
\nextortion of the swami, due to his involvement in the crime, and acting upon it, started to tap
\nhis telephonic conversations. Three telephonic conversations, of early September, 1995, led
\nto needle of suspicion being pointed at him. The police, therefore, visited him at Rishikesh;
\nafter his interrogation, statements were recorded. This led to recoveries, as well as the search
\nand seizure of letters, etc. from the house of PW-21 and the appellant Savita; she too was
\narrested. The other conspirators were arrested later, and recoveries were effected pursuant to
\ntheir statements.\n<\/p>\n
32.    It was submitted that the entire circumstances surrounding the attack and the
\nsubsequent events, which emerged during the investigation, clearly and unerringly pointed to<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                      Page 18
\n the involvement of the accused Savita, as an active conspirator without whose facilitation
\nManoj could not have been killed. Elaborating, the learned APP submitted that PW-1 had
\nmentioned in the statement recorded on 11th February, 1995 about Savita’s involvement in
\nthe offence. She had also deposed about Savita not willing to have cohabit with Manoj and
\nfurther her testifying that the couple slept separately, since Savita used to frequently give the
\npretext of ill health. The learned APP submitted that in her statement to the Police, as the first
\ninformant, as well as the statement recorded under Section 313 Cr. P.C. Savita stated that on
\nthe fateful night, three persons had entered the house and on the door being opened by Manoj,
\ndragged him to the inner room, looted the jewellery and tried to molest her, on which he
\n(deceased Manoj) resisted, which resulted in his murderous attack and his subsequent
\ndeath.The learned APP submitted that entire circumstances emerging from the evidence
\nfalsify this story because PW-35 in his deposition mentioned that there was no sign of
\nforcible entry. Furthermore, the description of facts leading to the attack is improbable
\nbecause before anyone could enter the apartment on the first floor on which the deceased and
\naccused Savita live, he had or they had to cross two barriers in the form of wooden gate and a
\ngrilled door. The Savita’s story was completely false because there was no forcible entry and
\nthe entrance had been opened in a pre-planned manner to facilitate the entry of intruders to
\ncommit the crime.\n<\/p>\n
33.    It was submitted that the Court could always look into the information given by the
\naccused particularly when the sequence of the events was not denied by him or her in the
\ncourse of statement made under Section 313 Cr. P.C. It was submitted that since Savita did
\nnot deny the description of the attack and admitted the facts put to her to be correct, there is
\nno question of prejudice being caused to her. A comparison between the information
\nprovided by her in the statement under Section 313, as an involvement and circumstances
\nemerging against her falsify that version. Therefore stated the APP, rule Agnoo Nagesia
\n(supra) is not attracted and the statements could be used as a circumstance against her.\n<\/p>\n
34.    The learned APP next submitted that the omission by Savita to mention the previous
\nattack upon Manoj on 15.11.1994 in the first statement recorded by her was crucial because
\nthat pointed to her state of mind and desire to suppress that fact. It was argued that no
\nreasonable person would have forgotten that previous incident, which would have been afresh
\nin the memory of a near and dear one, especially a wife who had witnessed both the attacks,
\ni.e. the 15.11.1994 and the crime which occurred in the intervening night 02\/03.12.1994.
\nThat Savita did not deny the attack of 15.11.1994 in a subsequent course of trial would not in<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                         Page 19
\n any manner diminish the importance of that omission because it constitutes a mental
\ncircumstance, which the Court would take into consideration while adjudging her
\ninvolvement in the crime.\n<\/p>\n
35.          It was submitted that the information provided by Savita in regard to the attack could
\nbe divided into two parts, i.e. the attack dates and the facts immediately surrounding that
\nevent. As far as the latter were concerned, the facts emerging from the depositions of PW-15,
\nwho was called out from the ground floor by Savita and who corroborated that what was told
\nto him by her, is material.\n<\/p>\n
36.          It was further submitted that the conspiracy hatched by Savita with the Swami was
\nproved by the reading of the depositions of PW-1, PW-3, PW-15, PW-16 and PW-18, which
\nbrought out the following sequence:\n<\/p>\n
      i)        That the Swami was known to Savita and her family before her marriage was
\n                solemnized with Manoj.\n<\/p><\/blockquote>\n
      ii)       That even after the marriage, Savita used to frequently receive and attend to calls
\n                made by the Swami.\n<\/p><\/blockquote>\n
      iii)      Savita and Manoj had gone to honeymoon after the marriage to Simla but returned
\n                earlier than the schedule.\n<\/p><\/blockquote>\n
      iv)       The deceased and Savita used to live on the first floor of the premises. PW-1 the
\n                deceased’s mother and her husband PW-3 also used to reside there, however since
\n                PW-3 was posted in Agra, she (PW-1) had joined him there and was also not in
\n                the premises on the first floor on the day when the crime occurred.\n<\/p><\/blockquote>\n
      v)        PW-1 had left her jewellery in the first floor of the premises; they were in the
\n                almirah with Savita’s jewellery.\n<\/p><\/blockquote>\n
      vi)       The conjugal relationship between Savita and the deceased was not a happy one;\n<\/p><\/blockquote>\n
                the husband and wife used to frequently sleep away from each other despite being
\n                newly married couple.\n<\/p><\/blockquote>\n
      vii)      The family started suspecting Savita a few days after the death of Manoj; the
\n                Swami had participated in some of the Manoj’s death ceremonies. Soon thereafter
\n                he was not welcome in the house of Savita. She too left her in-laws place
\n                sometime in January 1995.\n<\/p><\/blockquote>\n
      viii)     The members of the deceased family voiced their suspicion of the involvement of
\n                Savita during the early investigation.\n<\/p><\/blockquote>\n
      ix)       It was stated that a complaint was also addressed to the higher authorities alleging
\n                that Savita and the Swami’s involvement was not being investigated and
\n                statements to that effect were not recorded by the concerned Policeman.\n<\/p><\/blockquote>\n
37.          The learned APP submitted that the prosecution also established during the evidence
\nof PW-16 that Savita had sometime used to come home late claiming that she was visiting her
\ncolleague Ms. Neeta Kohli whereas in reality she was planning the attack with her co-
\nconspirator the Swami. It was further stated that at 8:30 PM on the fateful evening of<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                          Page 20
\n 02.12.1994 itself PW-18 had clearly heard the appellant Savita stating on telephone “Aaj
\nRaat ko kam ho jana chahiye”.\n<\/p>\n
38.    It was argued that photographs Ex. PW-17\/A and Ex. PW-17\/B clearly showed that
\nthe stab wounds and the manner in which Manoj’s body was lying pointed to a pre-planned
\nattack. If this was compared with Ex. PW-35\/C the un-scaled map and if one kept in mind
\nthat the cuts in the towel, which was seized, corresponded with the stab wounds even on the
\ndeceased’s neck and shoulders, there were strong and irrefutable circumstantial evidence
\npointing out to pre-mediated and calculated attack upon Manoj and not an assault at the spur
\nof moment by alleging robbery, as stated by the appellant Savita. Furthermore, stated learned
\nAPP that a khase (thick covering used while sleeping) entangled between the legs of the
\ndeceased was an additional factor that pointed out to a homicidal attack on a sleeping Manoj
\nand not to his being dragged to the outer room and then attack, as alleged by Savita.\n<\/p>\n
39.    It was next argued that pursuant to the statements of the swami, Savita’s premises
\nwere searched, and seizure of Ex. PW-37\/E-1 to E-28 and Ex. PW-39\/B, letters addressed by
\nhim (the swami) to her, were made. These letters did not show an ordinary guru- shishya
\nrelationship, but that the swami had a deep and earthly emotional attachment and love for
\nSavita, which he used to express unrestrainedly. This illicit relationship could not under any
\ncircumstance be allowed to become public knowledge, as it would have pointed the needle of
\nsuspicion on the two, i.e. Savita and the swami. Therefore, the two of them went through the
\noutward pretence of having a spiritual teacher- disciple relationship, while really nurturing an
\nintimacy of a different kind, which afforded them the strong motive to commit the crime,
\nafter duly planning it. It was argued that the Court would be within its rights to consider and
\ntake into account the most incriminating letter, Ex. PW-37\/R, which was recovered from PW-
\n21, after the swami’s disclosure. The testimony of PW-31 established that the said letter was
\nhanded over to him, by the swami, with specific instructions to deliver it to PW-21 (from
\nwhose premises ultimately the letter was recovered). Although PW-21 spoke about recovery
\nand seizure of the envelope, she clearly mentioned about a letter; PW-45 deposed that PW-
\n37\/R was recovered from that envelop. Therefore, all the material, connecting PW-37\/R with
\nthe swami, had, in substance been put to the Appellant Savita; the error in posing a wrong
\nquery that the letter had been recovered from her premises, in no manner caused her
\nprejudice.\n<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                      Page 21\n<\/p>\n
 40.    The learned APP relied on the decision of the Supreme Court, reported as Shivaji
\nSahabrao Bobade and Anr. v. State of Maharashtra and Anr., AIR<\/a> 1973 SC 2622, and
\nBasavraj R. Patil v. State of Karnataka, (2000) 8 SCC 740 and Santosh Kumar Singh v. State,
\n2010 (9) SCC 776, to say that it is not enough for an accused to say that an incriminating
\ncircumstance was not put to him, by the Court during his examination under Section 313 Cr.
\nP.C.; he also has to show that the omission actually and materially prejudiced him (or her)
\nand resulted in failure of justice. In the event of any inadvertent error by the Court, in
\nquestioning the accused (under Section 313 Cr. P.C.) through an omission, that would ipso
\nfacto not result in acquittal, and it would be open for the appellate Court to put the said
\nincriminating circumstance to the accused or his counsel. Such defect, it was argued, is
\ncurable, and the Court can always take remedial action even in an appeal, if it were to hold
\nthat there was an irregularity in the course of the trial. Therefore, submitted the learned APP,
\nEx. PW-37\/R could not be eschewed from evidence, particularly, in view of PW-45’s
\ndeposition. It was a highly incriminating piece of evidence, pointing to the guilt of accused
\nSavita, and her conspiracy with the swami.\n<\/p>\n
41.    It was argued that so far as the swami was concerned, the evidence, of PW-1, PW-3
\nand PW-15 showed that he was on close – even intimate terms with Savita. The evidence of
\nPW-13 revealed that the swami had asked him to visit his ashram at Rishikesh, which he did
\non 07.09.1995. The swami, then, had asked him to tell the police (in the event of his – i.e.
\nPW-13) being questioned, that the swami visited his house, in 26\/14, East Patel Nagar, Delhi
\non 30th November, 1994, even though that was not true. It was submitted by the APP that
\nthis, according to the swami, was necessary because one of his drivers, Makhan Singh was
\nblackmailing his follower. Mr. Sawhney stated that there was further corroborative evidence
\nof such clandestine meetings, in the form of testimony of PW-33, a sadhvi and another
\ndisciple of the swami, who mentioned about Savita’s trysts with the swami, alone on different
\noccasions, in her statements, but which were resiled in Court; those statements were put to
\nher after permission to cross-examine her, was sought. The learned APP submitted that there
\nwas intrinsic support to the veracity of the statements made to the police, because PW-33
\nadmitted to complaints made against the swami, to the police, by her father, and also that she
\nused to be fearful of him. It was also urged that though PW-34, Krishna Budhiraja, retracted
\nfrom the statement made by her previously, there was no doubt that in it (Ex. PW-34\/A) she
\nhad categorically mentioned about over a decade long association with the swami, existence
\nof a room on the third floor of her premises, visits by the swami to her premises, her family’s<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                      Page 22
\n association with the swami, her acquaintanceship with Savita, and most importantly that
\nSavita used to meet him (the swami) occasionally, alone, in that room (on the third floor)
\nwhich was meant for his use. It was submitted that a cumulative reading of these testimonies
\nestablished that Savita and the swami used to frequently meet alone, even after the former’s
\nmarriage; she had met him twice, before the day of the incident, once even on the same
\nafternoon\/evening, on the pretext of visiting Nita Kohli. Relying on Gura Singh v. State of
\nRajasthan, 2001 (2) SCC 205, Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 and
\nRabindra Kumar Dey v. State of Orissa, AIR<\/a> 1977 SC 170 it was argued that merely because
\nthe Court permitted the prosecution to cross-examine its witness(es) describing some of them
\nas hostile witness does not completely efface such deposition(s). The evidence remains
\nadmissible in the trial and there is no legal bar to base conviction upon the testimony of such
\nwitness. The witness does not become ipso facto unreliable only by his being declared as
\nhostile. On this ground the entire testimony of such class of witnesses cannot be excluded
\nfrom consideration.\n<\/p>\n
42.    Arguing about the recoveries effected in this case, particularly from the swami, where
\njewellery items and a weapon of offence were seized, it was submitted that the Court cannot
\nreject such evidence, since the eyewitnesses to the disclosure statements, and the recoveries
\nhad deposed about it, on the ground that they were police officers. It was submitted that the
\ndecision in State Govt. of NCT of Delhi v. Sunil & Anr., 2000 (1) SCC 748 is an authority on
\nthe point that there is no requirement either under Section 27 of the Evidence Act or under
\nSection 161 of the Cr. P.C., to obtain signature of independent witnesses on the record in
\nwhich statement of an accused was written. For these reasons, the arguments in this regard by
\nthe swami, Ravi Chauhan, and Asutosh Banerjee were meritless.\n<\/p>\n
43.    It was next submitted that the tape recording of conversations, and the transcripts
\nprepared, which were exhibited without demur during the trial, are legally admissible
\nevidence. In this context, it was submitted that the reference to provisions of the
\nIdentification of Prisoners Act, by the appellants, for the argument that no sample of
\nhandwriting or voice, could be obtained without the permission of the magistrate, is
\nmisconceived. In this regard, the prosecution relied on Section 4, which is an independent
\npower vested in the police, to secure such samples for comparison, and expert advice, which
\ncould be produced in Court. It was argued that the decisions reported as Mohd. Aman v. State
\nof Rajasthan, 1997 (10) SCC 44, and Shankaria v. State of Rajasthan,<\/a> 1978 (3) SCC 435<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                     Page 23
\n have ruled that under Section 4 of the Identification of Prisoners Act, the police is competent
\nto take finger prints of the accused.\n<\/p>\n
44.    The learned APP submitted that the tape recording and the transcript version were
\nproved to be that of the accused’s conversations. He stated that drawing of the swami’s voice
\nsamples were not objected to by him, during the trial; the recordings were proved by the
\ntestimony of PW-26, PW-28, PW-38 and PW-43. The expert, who was given the voice
\nsample (PW-41) identified them with that of the voice in the recorded conversation, in his
\nreport Ex. PW-41\/B. The transcripts had been placed on record, as Ex. PW-45\/C, Ex. PW-
\n45\/D, and Ex. PW-45\/E. The appellant swami did not challenge to the genuineness of the
\nsamples, the report or transcripts- the latter’s copies being provided to him. In this
\nbackground, the prosecution had proved this circumstance about the swami’s conversations,
\nand his attempt to handle a possible blackmail threat, on account of his involvement in the
\ncrime, beyond reasonable doubt.\n<\/p>\n
45.    It was submitted that so far as jewellery identified by PW-3 was concerned, there was
\nnothing illegal or incorrect to persuade the Court to reject his testimony. It was submitted that
\nthe TIP was conducted in November, 1995, about six weeks or so, after the seizure of the
\narticles was made. This itself could not be a factor to persuade the Court to discard the TIP
\nproceeding, particularly when the articles were kept sealed in a pulanda, which was opened
\nduring the proceeding. The APP relied on the TIP proceeding, marked as Ex. PW-36\/C to say
\nthat the seal on the articles was removed in the presence of the Magistrate, and the other
\narticles were suitably mixed with the seized exhibits. From this collection, PW-3 was able to
\ncorrectly identify the missing jewellery. It was also submitted that the mere circumstance that
\nPW-3, rather than PW-1 knew about the details of the jewellery cannot be a ground to
\npersuade the Court to reject his deposition, and the identification of the relevant articles.\n<\/p>\n
46.    Mr. Sawhney lastly argued that the prosecution had sufficiently discharged its burden
\nin proving all the relevant circumstances, as well as the link between each of them, beyond all
\nreasonable doubt as to establish that they led only to the hypothesis of the Appellants’ guilt,
\nand every possibility of their innocence was ruled out. Reliance was placed on the ruling
\nreported as Vikramjit Singh v. State of Punjab, (2006) 12 SCC 306, for the submission that in
\nthese circumstances, such facts which were within the special knowledge of the accused, had
\nto be explained and proved by them, and the onus to do so shifted to them. The accused
\nappellants not only did not avail the opportunity, to explain these facts, but also did not<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                         Page 24
\n mention anything worthwhile in their statements to the Court, under Section 313, Cr. PC. In
\nthese circumstances, the Court, he submitted, should affirm the findings and sentence of the
\ntrial court, and reject the appeals.\n<\/p>\n
Analysis & Conclusions<\/p>\n
47.     Now, in this case, it is apparent that there is no direct or ocular evidence. The
\nprosecution was unable to make any headway. It apparently secured a breakthrough in the
\nlatter part of 1995, on a tip off that the swami was being blackmailed on telephone. By then,
\nthe investigating officer too had changed; PW-45 had taken charge of the investigation into
\nthe offence. On the basis of these leads, the swami was questioned, later arrested, the
\nrecoveries made pursuant to his disclosure, which led to the arrest and implication of other
\nco-accused. Thus, the case hinges on appreciation of the circumstances. Here a word about
\nthe approach of the Court, in respect of circumstantial evidence is necessary. The phrase
\n“men may lie, but circumstances do not” is well worn. At the same time, to get to the truth,
\nthe essential requirement of proving the prosecution allegations, beyond reasonable doubt,
\ndoes not change; the standard or threshold of proof remains constant, in cases involving
\ncircumstantial evidence. To place the matter in proper perspective, since the mind has a
\ntendency to boggle, a few tests have been mandated in a string of judicial decisions. Thus, in
\nHanumant v. State of Madhya Pradesh, AIR<\/a> 1953 SC 343, the Supreme Court indicated the
\ncorrect approach of the Courts, in the following words:\n<\/p>\n
        “It is well to remember that in cases where the evidence is of a circumstantial nature,
\n        the circumstances from which the conclusion of guilt is to be drawn should in the first
\n        instance be fully established and all the facts so established should be consistent only
\n        with the hypothesis of the guilt of the accused. Again, the circumstances should be of
\n        a conclusive nature and tendency and they should be such as to exclude every
\n        hypothesis but the one proposed to be proved. In other words, there must be a chain
\n        of evidence so far complete as not to leave any reasonable ground for a conclusion
\n        consistent with the innocence of the accused and it must be such as to show that
\n        within all human probability the act must have been done by the accused.”\n<\/p><\/blockquote>\n
This approach has been consistently followed and applied in several other judgments, notable
\namong them being Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198; Ramgopal v. State of
\nMaharashtra, AIR 1972 SC 656 and in Sharad Birdhichand Sarda v. State of Maharastra,
\n1984 (4) SCC 116. Sarda an authority on this and other important aspects of criminal
\njustice\/law, put the matter in a lucid terms:\n<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                      Page 25
\n        “152. A close analysis of this decision would show that the following conditions must
\n       be fulfilled before a case against an accused can be said to be fully established:\n<\/p>\n
       (1) the circumstances from which the conclusion of guilt is to be drawn should be
\n       fully established.\n<\/p>\n
       It may be noted here that this Court indicated that the circumstances concerned ‘must
\n       or should’ and not ‘may be’ established. There is not only a grammatical but a legal
\n       distinction between ‘may be proved’ and ‘must be or should be proved as was held by
\n       this Court in Shivaji Sahebrao Bobade v. State of Maharashtra<\/a> 1973CriLJ1783 where
\n       the following observations were made:\n<\/p>\n
               “certainly, it is a primary principle that the accused must be and not merely
\n               may be guilty before a Court can convict, and the mental distance between
\n               ‘may be’ and ‘must be’ is long and divides vague conjectures from sure
\n               conclusions.”\n<\/p><\/blockquote>\n
       (2) the facts so established should be consistent only with the hypothesis of the guilt of
\n       the accused, that is to say, they should not be explainable on any other hypothesis
\n       except that the accused is guilty.\n<\/p>\n
       (3) the circumstances should be of a conclusive nature and tendency.\n<\/p>\n
       (4) they should exclude every possible hypothesis except the one to be proved, and<\/p>\n
       (5) there must be a chain of evidence so complete as not to leave any reasonable
\n       ground for the conclusion consistent with the innocence of the accused and must show
\n       that in all human probability the act must have been done by the accused.\n<\/p>\n
       153. These five golden principles, if we may say so, constitute the panchsheel of the
\n       proof of a case based on circumstantial evidence.”\n<\/p>\n
48.    In a previous portion of this judgment, the Court had outlined the various
\ncircumstances which the prosecution had relied on – and that were accepted as proved by the
\ntrial court – to establish the guilt of the four appellants. This Court proposes to discuss the
\nnature of each circumstance, and determine, whether each of them were proved, and if so, the
\nprosecution also proved the link between each of them to satisfy the test of proof beyond
\nreasonable doubt, in line with the existing law pertaining to proof of guilt in cases involving
\ncircumstantial evidence, in criminal cases.\n<\/p>\n
I.     The incident of 15.11.1994<\/p>\n
49.    The first circumstance put forward by the prosecution in this case was the incident of
\n15.11.1994 in which an attempt was made on the life of Manoj. The prosecution had alleged
\nthat Manoj, while on the way to Connaught Place, was shot at and had sustained injuries.\n<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 26
\n Savita, who was Manoj’s pillion passenger, had got off, saying that her chappal had fallen.
\nWhen the motorcycle was stationary, the assailant shot at Manoj. It was argued by the
\nprosecution that PW-1 and PW-15 proved that Savita was instrumental in ensuring that this
\nincident was not reported to the police. This was to show that she was anxious to rule out the
\npossibility of an investigation, and therefore, that a conspiracy to do away with Manoj existed
\nat the time. The prosecution argument further was that Savita did not report this incident,
\neven as informant about the homicidal attack leading to Manoj’s death, and that she did not
\nhelp the police to recover or seize the clothes worn by Manoj on the day of the attack. Being
\nthe most proximate to the point of time when the murder took place, her omission to mention
\nabout the previous attack was unnatural, pointing to a guilty mind.\n<\/p>\n
50.    The record discloses that Savita, in her statement under Section 313 Cr. PC. did not
\ndispute the incident itself, or the sequence of events connected with it. The prosecution had
\nplaced strong reliance on the testimonies of PW-1, Manoj’s mother, as well as that of PW-15
\n(Madan Lal Girotra) to say that Savita was instrumental in prevailing on all others not to
\nreport the shooting incident of 15.11.1994, which injured Manoj. Both these witnesses have
\nno doubt stated this, in their depositions – not once, but repeatedly, at various stages.
\nHowever, three other aspects have to be noticed while considering this circumstance. The
\nfirst is that PW-15 stated, in the course of her evidence to a specific question about the
\nreactions of individual family members, to the incident, that:\n<\/p>\n
       “We did not lodge FIR as we were of the opinion that our son had been saved by the
\n       grace of God, despite such a dangerous incidence (sic incident). This was the decision
\n       of the whole family.”\n<\/p><\/blockquote>\n
Secondly, PW-3, Manoj’s father, who was not in Delhi, on 15.11.1994, was not even
\ninformed about the incident on that day, by other members of the family. He deposed that he
\nlearnt about the incident 2 or 3 days later when he returned to Delhi from Agra, on a visit. He
\nalso sought to corroborate the evidence of PW-1 and PW-15 that Savita prevailed on him not
\nto report the incident because the assailant was apparently a mad person. This aspect is
\nsomewhat strange, because the gravity of the incident, i.e. an attempted murder, was
\nsufficient for the elders in a family, normally to have reported the matter to the police. PW-3
\nand the deceased were educated; so too, was PW-15. Yet, they inexplicably allowed
\nthemselves (according to their depositions) to be persuaded by Savita, a young and
\ninexperienced bride, into not reporting the matter. Apart from the fact that PW-1’s deposition
\nregarding the collective decision of all members of the family not to report the matter, having<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                     Page 27
\n a ring of conviction, it is unbelievable that in the circumstances of this case, a newly married,
\nbarely one month into the family bride could have prevailed over all members of the family
\nand ensured that the attack was not reported. The third aspect is that the alleged assailant, i.e.
\nRaju, was also sent up for trial. There was no recovery. The Trial Court held that there was
\nno evidence, and acquitted him.\n<\/p>\n
51.    So far as the second argument on this previous incident is concerned, the prosecution
\nhas sought to use the statement of Savita, recorded in the first incident, while reporting the
\nattack, on 3rd November, 1994, to allege that she deliberately suppressed any reference to it,
\nwhich indicated a culpable mind, bent upon misleading the course of investigation. For this
\npurpose, the prosecution relied on Ex. PW-6\/A, to highlight the omission. The appellants
\nargued that the statement cannot be gone into by the Court, because of the bar contained in
\nSection 162, as well as the settled line of authorities, which have ruled that the statement of
\nan accused, in the course of investigation, or as a first informant, cannot be taken in evidence.\n<\/p>\n
52.    The earliest decision on the question is Nissar Ali (supra), in which, in the Supreme
\nCourt outlined the position as follows:\n<\/p>\n
        “A First Information Report is not a substantive piece of evidence and can only be
\n       used to corroborate the statement of the maker under s. 157 of the Evidence Act or to
\n       contradict it under s. 145 of that Act. It cannot be used as evidence against the maker
\n       at the trial if he himself becomes an accused, nor to corroborate or contradict other
\n       witnesses. In this case, therefore, it is not evidence.”\n<\/p><\/blockquote>\n
Agnoo Nagesia (supra) explained the matter in the following terms:\n<\/p>\n
       “10. Section 154 of the Code of Criminal Procedure provides for the recording of the
\n       first information. The information report as such is not substantive evidence. It may
\n       be used to corroborate the informant under s. 157 of the Evidence Act or to contradict
\n       him under s. 145 of the Act, if the informant is called as a witness If the first
\n       information is given by the accused himself, the fact of his giving the information is
\n       admissible against him as evidence of his conduct under s. 8 of the Evidence Act..”\n<\/p><\/blockquote>\n
The position was reiterated in Khatri Hemraj Amulakh v. State of Gujarat, AIR<\/a> 1972 SC 922,
\nas follows:\n<\/p>\n
       “…no part of a first information report lodged by the accused with the police could be
\n       admitted into evidence if it was in the nature of a confessional statement. The
\n       statement could, however, be admitted to identify the accused as the maker of the
\n       report. The part of the information as related distinctly to the fact discovered in
\n       consequence of the information could also be admitted into evidence under Section 27
\n       of the Indian Evidence Act if the other conditions of that section were satisfied.”\n<\/p><\/blockquote>\n
K.A. Vish (supra) explains the issue thus:\n<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 28
\n        “It may be pointed out that any statement made in the Panchnama cannot be used in
\n       evidence except for the purposes of contradicting the witness whose statement is
\n       contained in Panchnama but if it is intended to contradict him by the writing his
\n       attention must before the writing can be proved, be called to those parts of it which
\n       are to be used for contradicting him. This is what is required under Section 145 of the
\n       Evidence Act but even where a witness is confronted by his previous statement and
\n       given an opportunity to explain, that part of the statement that is put to him does not
\n       constitute substantive evidence.”\n<\/p>\n
53.    In this case, the trial court inferred – and concluded – that Savita’s omission to
\nmention the previous 15th November 1994 incident, in the first information statement
\nrecorded by her, on 3rd December, 1994, showed a culpable mind, and was an established
\ncircumstance against her. The rule spelt out in Nissar and Nagesia are clear, that the facts
\nstated in the first information report are ipso facto inadmissible, against an accused, except to
\nshow that she (or he) was an informant. In this case, therefore, only the circumstance that
\nSavita was the first informant who reported the matter, and got the statement recorded can be
\nvalidly considered. However, all other allegations, and inferences, stemming out from her
\nomission to mention the 15th November 1994 incident, cannot be looked into by the Court.
\nSignificantly, there is evidence on the record in the form of deposition of PW-35, who
\ntestified that Ex. PW-14\/4 (a wind cheater worn by Manoj when he was attacked on
\n15.11.1994) was handed over to him by Savita. This witness stated that PW-15 had
\nmentioned about the incident. Yet, PW-15 does not mention having told PW-35 about the
\nprevious attack on Manoj, in his deposition. PW-3 sought to build on the prosecution story by
\nstating that Savita was reluctant to hand over Manoj’s clothes – a statement clearly
\ncontradicted by the documentary evidence, as well as PW-35, who does not mention any such
\nobstruction, in his testimony. The Court, therefore, holds that the trial court fell into error in
\nconsidering the first information report and the omission by Savita to report the previous
\nincident, as an incriminating suspicious circumstance against her.\n<\/p>\n
II.    The attack on Manoj and prosecution evidence that Savita’s description was false<\/p>\n
54.    The prosecution had relied on Ex. PW-35\/C, a sketch prepared by PW-35, who had
\nreached the spot soon after the occurrence. In addition, the prosecution relied on a scaled
\nsketch, drawn on 04.01.1995, by the draftsman, Balbir Singh. This map sets out the various
\npoints in detail, pinpointing the topography of the first floor of the premises in question, the
\ndifferent rooms, the point where the attack took place, where the various furniture pieces
\nwere kept, etc. These two documents, as well as photographs, proved by PW-17, and the<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 29
\n post-mortem report, which indicated that the deceased succumbed to stab injuries, were relied
\non. The prosecution argument was that Savita had facilitated the attack, by keeping the outer,
\nas well as the main wooden door open, for the accused to enter the premises, which they did,
\nand thereafter proceed to stab a peacefully sleeping Manoj, who was in the last room. It was
\nargued that Savita’s story about assailants forcing their way inside, after Manoj opened the
\ndoor, when they knocked, is simply unbelievable, because no one, especially someone who
\nwas attacked as recently as Manoj, and who was recently married, would easily open the door
\nat 1:30 AM. Great emphasis was given to the statement of PW-15 – he had deposed that
\nwhen Savita called him out, saying “Pitaji upar aao, Dekho na inko kya ho gaya” after the
\nattack, he rushed to the first floor, which was locked from outside.\n<\/p>\n
55.    The evidence of PW-1 and PW-15 indicates that the ground floor of the premises
\nwere occupied by the latter (PW-15’s) family; PW-1, PW-3, deceased Manoj and Savita lived
\non the first floor. PW-1 and PW-3, resided at that time in Agra, where PW-3 was posted on
\nduty. PW-15’s evidence also indicates that a tenant used to reside on the second floor; this is
\ncorroborated by PW-35 in his deposition; he even stated that the said tenant had been
\nquestioned. He stated that the dog squad arrived at 4:30 AM, and nothing could be made out
\nthrough the search. He further stated that no dirt had been disturbed on the back walls of the
\npremises. Now, beyond proving that the incident took place on the first floor, and that it had
\nan entry through a wooden gate or door, the prosecution did not state anything of the kind, as
\nis sought to be made out before the Court. Its argument here is built upon the appreciation of
\nan unmarked sketch drawn to scale, spoken about by a witness who drew the sketch more
\nthan a month after the incident. This detailed scaled sketch contains particulars such as the
\nprecise points where the furniture was placed, where the assailants entered from and went to,
\nwhere the attack took place, and the jewellery was looted. This document is inadmissible,
\nbecause of the rule spelt out in Tori Singh, where the Supreme Court held as follows:\n<\/p>\n
       “The validity of this argument depends mainly on the spot which has been marked on
\n       the sketch-map Ex. Ka-9 as the place where the deceased received his injuries. In the
\n       first place, the map itself is not to scale but is merely a rough sketch and therefore one
\n       cannot postulate that the spot marked on the map is in exact relation to the platform.<\/p><\/blockquote>\n
       In the second place, the mark on the sketch-map was put by the Sub-Inspector who
\n       was obviously not an eye-witness to the incident. He could only have put it there after
\n       taking the statements of the eye witnesses. The marking of the spot on the sketch-map
\n       is really bringing on record the conclusion of the Sub-Inspector on the basis of the
\n       statements made by the witnesses to him. This in our opinion would not be admissible
\n       in view of the provisions of section 162 of the Code of Criminal Procedure, for it is in
\n       effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 30
\n        him that the deceased was at such and such place at the time when he was hit. The
\n       sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw
\n       himself at the spot; but any mark put on the sketch-map based on the statements made
\n       by the witnesses to the Sub-Inspector would be inadmissible in view of the clear
\n       provisions of section 162 of the Code of Criminal Procedure as it will be no more
\n       than a statement made to the police during investigation.”\n<\/p>\n
This decision was followed, and the rule, applied in Jagdish Narain (supra). In the present
\ncase, the scaled map or sketch is, therefore, clearly inadmissible, and cannot be taken into
\naccount, because its maker prepared it on 04.01.1995, under instructions from someone who
\nwas not an eyewitness to the incident. However, Ex. PW-35\/C cannot meet the same fate; it
\nwas prepared by PW-35, on the basis of his personal observations. This document,
\nnevertheless, is of not much assistance, because it merely shows the entries to the different
\nrooms in the first floor of the premises where the crime occurred. As far as evidence of PW-
\n15 is concerned, the prosecution attempted to say that when the incident was reported,
\nimmediately after it happened, to other members of the family, the door was locked from
\noutside. A strong insinuation was made that Savita facilitated the safe escape of the
\nassailants. On this, PW-15 varied his earlier statement; in Ex. PW-15\/DA, he stated that the
\nfirst floor door was closed from inside; his deposition in Court was that it was closed from
\noutside. He later clarified that what he meant was that it was closed from Savita’s side.
\nNothing much can be made out of this statement, because PW-35 states that the entry into the
\nfirst floor premises was through only one door. There is of course a reference to another outer
\ndoor, in PW-15’s deposition. However, he also admitted that the first floor could be accessed
\nfrom the main ground floor staircase. PW-15 stated that the wooden outer door on the first
\nfloor was 3 feet high, and that a wall abuts that gate, which can be jumped by anyone. His
\nevidence also is that the entry for the first and second floor, from the street level, is through a
\ncommon door, and a common staircase.\n<\/p>\n
56.    The evidence discussed about the first floor topography of the premises, though
\nlengthy, is to show that the prosecution did not allege any specific route alleged to have been
\nused by Manoj’s assailants on the fateful day. No photographs of the premises, or the stairs,
\nhave been placed on record. No clear cut plan showing how the assailants entered, according
\nto the prosecution, and how Savita facilitated the attack has been argued. The prosecution
\nattempt was to bank on the sketches, and build on the theory that the attack mentioned by
\nSavita was not possible, and that Manoj was sleeping at the time he was murdered. While
\nthere can be no doubt that Manoj was brutally assaulted, and that the attack was with<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                         Page 31
\n homicidal intention, having regard to the nature of stab injuries all over the face, neck and
\nshoulders, particularly the neck – which led to his death, that itself cannot be connected with
\nthe hypothesis that such attack was not possible without Savita’s connivance. The testimony
\nof PW-15 who arrived at the scene, soon after the incident, shows that the apartment was in
\ndisarray, with the almirah open and articles scattered around. Apart from the fact that
\nSavita’s statement describing the sequence of events leading to the incident, cannot be looked
\ninto for the reason mentioned in the previous section dealing with the 15.11.1994 incident (on
\nan application of the rule in Nissar Ali and Agnoo Nagesia), there is no acceptable evidence,
\nto support the prosecution version, which at best is an unproven hypothesis, that she had
\ncollaborated with the accused, and facilitated their entry. The prosecution apparently did not
\nargue about the location of the body, and the nature of injuries found on it, to submit that the
\nattack was a preplanned and calculated one (as is argued here, based on the cuts found on the
\nneck, the towel used to staunch the blood, the pillow, and also the location of the khes, on
\nManoj). The Trial court also did not put the relevant queries, as regards these circumstances.
\nTherefore, the prosecution argument that Savita had facilitated the entry of the co-accused
\ninto the premises, since the nature of Manoj’s injuries, and the various entries into the
\npremises bespoke a contrary story, being another strong circumstance pointing to her guilt,
\ncannot be accepted. The findings to the contrary by the trial court cannot be sustained.\n<\/p>\n
III.   An illicit relationship between Savita and the Swami, the deceased’s family
\nmembers’ suspicions, telephonic conversations, and meetings between the two Appellants
\nand similar circumstances leading up to the incident and death of Manoj<\/p>\n
57.    These circumstances are projected as motive, as also the proof of the two accused
\nhaving committed the crime. On this, the evidence relied upon by the prosecution was the
\nsuspicion of Manoj’s family members, about the involvement of Savita and the swami, in the
\nmurder, frequent telephone calls between each of the said accused, clandestine meetings
\nbetween them few days before the incident and Savita’s telephonic conversation at 08:30 PM,
\non 2nd December, 1994, when she is alleged to have been heard saying “Aj raat ko kaam ho
\njana chahiye”. Most importantly, the prosecution relied on three letters, Ex. PW-37\/E-1 to E-
\n28, Ex. PW-39\/B and Ex. PW-37\/R. The first two were recovered from Savita; the last was
\nsaid to have been recovered along with an envelope, from the premises of PW-21.\n<\/p>\n
58.    PW-1 and PW-15 deposed having been suspicious about Savita’s conduct and role in
\nthe murder, as well as the involvement of the swami. However, PW-1 was confronted with a
\nprevious statement made to the police, under Section 161 Cr. P.C. on 11.02.1995, when<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                         Page 32
\n concededly no such suspicion had been voiced. Similarly, PW-15’s statement, recorded
\nimmediately after the incident, does not reflect any such suspicion. The prosecution sought to
\nexplain this by saying that these witnesses had entertained their suspicions, at the relevant
\ntime, but it was not reflected in the earliest statements, because the police at that time was of
\nopinion that the angle should not be pursued without any concrete material. Reliance is
\nplaced on the evidence of PW-35, who has so stated. The prosecution evidence, in the form
\nof testimony of PW-1 and PW-3, is also to the effect that a complaint was made to the
\nsuperior police officers, after which the conspiracy angle was explored, and subsequently,
\ninvestigation was handed over to PW-45.\n<\/p>\n
59.    It is a matter of record -as is evident from the deposition of PW-1, that no suspicion
\nwas voiced, or recorded in the statement recorded by the police on 11.02.1995. The witness,
\ni.e. Manoj’s mother, mentioned that soon after the incident, in early December, she was in a
\nshock, and confused state of mind, and several relatives were visiting to condole with her.
\nWhat is significant, however, is that more than two months later, i.e. in February, 1995, she
\ndid not deem it appropriate to voice this suspicion. Furthermore, she deposed that Savita
\nstayed with Manoj’s family till end December, 1994, or January, 1995. This part is
\ncorroborated by PW-3. This witness also stated that he too harboured some suspicions about
\nSavita’s involvement. However, he was confronted with his previous statement, recorded by
\nthe police, on 25.12.1994, where no such suspicion had been recorded. As regards PW-15,
\nthough he deposed in his examination-in-chief, about Savita’s alleged unnatural behaviour
\nand suspicions about her involvement, he was confronted with the previous statement made
\nto the police, where such allegations had been noted. Having regard to these, the Court is of
\nopinion that it would be unsafe to consider the vague suspicions supposedly entertained by
\nmembers of the deceased’s family.\n<\/p>\n
60.    PW-1, PW-3 and PW-15 deposed that the swami and Savita used to hold long
\nconversations over telephone. It was also deposed that the swami had, after about four days
\nof the homicidal attack, mentioned that Savita was a suspect, and that considerable amount of
\nmoney had to be spent to save her. They also deposed that the swami had attended the death
\nceremony of Manoj, and was also there when his asthi were consigned to the Holy Ganges.
\nThese witnesses also deposed having gone to his Ashram at Hardwar, with Savita, and that
\nshe spent a long time talking to him, and even remained closeted alone with him. Further, the
\nprosecution case was that the swami had met Savita on 30.11.1994, in the evening, and tried<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 33
\n to cover it up, by asking PW-13 to depose in Court that if questioned by the police, he should
\ntell that he (the swami) had in fact visited PW-13 that time, since he lived in West Patel
\nNagar. PW-18 deposed that when Manoj and his sister were watching television on the night
\nof 02.12.1994, Savita was on the phone, distinctly saying that “Aj raat ko kaam ho jana
\nchahiye” to someone.\n<\/p>\n
61.    PW-1 was, in her cross-examination confronted with her previous statements, where
\nshe had not mentioned about the swami frequently trying to talk to Savita on telephone, or
\nthat the family had gone to Hardwar, and stayed there, after Manoj’s death, for immersing his
\nashes. She was also confronted with her previous statement, where it was not mentioned that
\nSavita and the swami were closeted together for some time, by themselves, when in Hardwar.
\nThese facts were not part of the witnesses’ statement dated 11.02.1995. The witness made
\ntwo subsequent statements to the police, in August, and September 1995. As regards PW-3,
\nthe prosecution recorded no less than four statements; the first on 25.12.1994 (22 days after
\nthe incident); the second on 11.02.1995, the third on 04.04.1995 and the last one, on
\n01.08.1995. In the first three statements, he did not mention about the swami spending a lot
\nof time, talking to Savita at Rishikesh; he was confronted with these, when he deposed in
\nCourt. Likewise, in the first three statements, there was no mention that the swami suggested
\nthat money had to be given or spent, to save Savita, who was then allegedly suspected by the
\npolice, soon after Manoj’s death. This allegation was recorded for the first time, in the last
\nstatement made to the police on 01.08.1995; the witness was confronted with his previous
\nstatements. PW-3, however, has not mentioned about any telephonic conversations between
\nSavita and the swami. The last circumstance was PW-18’s deposition that he heard Savita on
\nthe phone, distinctly saying that “Aj raat ko kaam ho jana chahiye” to someone at 08:30 PM
\non 02.12.1994. This witness also stated that he had mentioned this to other family members;
\nhowever, PW-1 and PW-15 or even PW-3 do not corroborate his testimony, on this score.\n<\/p>\n
62.    It was argued, in addition to the evidence discussed above, that a cumulative reading
\nof the testimonies of PW-16, PW-13, PW-30, PW-31 and PW-34 (though some of them had
\nbeen declared hostile, and cross-examined by the prosecution) revealed that soon before the
\nincident of 02\/03.12.1994, the swami and Savita had met, in house of PW-34, (where they
\nwere normally in the habit of holding trysts and meetings, on a one to one basis) and that
\nPW-13 was asked by the swami not to reveal this if questioned by the police.\n<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                    Page 34\n<\/p>\n
 63.    PW-16 had deposed that Savita returned late from school, around 4:30 PM, (where
\nshe used to work) and told her that she had visited PW-20, a colleague. She further deposed
\nthat when PW-20 was asked about this, after Manoj’s death, she stated that Savita had never
\nvisited her (PW-20’s) place. As opposed to this, PW-20, in her deposition, admitted that
\nSavita was a colleague, and had not visited her. She also stated that no one asked or verified
\nthis fact form her at the time of performance of the death rites of Manoj, when she had visited
\nto condole with Savita. PW-13 Ramesh Kumar deposed about his acquaintanceship with the
\nswami and that on 06.09.1995 the swami asked him to reach Rishikesh, which he did the next
\nday. The swami, whom PW-13 met in his Ashram, asked him (PW-13) to help his follower
\nwho was in trouble and that one driver, namely, Makhan Singh was blackmailing his
\nfollower. The swami also asked PW-13 to help him (the swami) and tell the police, in case of
\nany inquiry by them, that he had visited PW-13 on 30.11.1994, at 26\/14, East Patel Nagar,
\nwhich was factually incorrect. PW-33 was cited as a witness; the prosecution sought
\npermission to cross-examine her, which was granted. She used to live in Tagore Garden; she
\ndenied the suggestion that frequently, the swami and Savita used to meet each other, and that
\nat times, Savita used to stay overnight in her place, with the swami. She was confronted with
\nher previous statement, made to the police, to the contrary. PW-34 was a long standing
\ndevotee of the swami. She was cited as a witness, because in the previous statement recorded
\nto the police, she had allegedly stated that Savita had visited her place (PW-34’s) place and
\nmet the swami. She was confronted with this statement, which she denied; She also denied
\nhaving told the police, in any previous statement that Savita used to meet the swami at times,
\nin a third floor room, in the witnesses’s house, which was kept aside for the swami’s room.
\nShe confirmed about her knowing Raj Kumar, who had been accused for the offence of
\nattempted murder, but was acquitted of the charge, in the impugned judgment.\n<\/p>\n
64.    Now, a careful and objective analysis of the above evidence would reveal that the
\ntestimony of PW-16 is unreliable, because it is contradicted by PW-20, as far as Savita
\nreturning late is concerned. PW-20 categorically denied having conversed with anyone in
\nSavita’s family, including PW-16, although the latter stated that she had talked with her, and
\nobtained the information about Savita not visiting her. So far as the clandestine meetings on
\n30.11.1994 or 01.12.1994, the two eyewitnesses – alleged to have seen these, and have first-
\nhand knowledge of the incident, are concerned, -turned hostile. The only positive evidence
\nfavouring the prosecution is that PW-13 was asked by the swami to inform the police –
\nuntruthfully – that he had visited the witness, on 30.12.1994. This circumstance is pressed as<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                     Page 35
\n the starting point, to persuade the Court to accept the unsworn testimony of the two
\nwitnesses, PW-33 and PW-34. However, those two witnesses have not supported the
\nprosecution story at all. They are also not witnesses to any other proven circumstances. Also,
\nthe prosecution has not brought on record any objective evidence or deposition showing that
\nthe swami was in Delhi, and in the vicinity of the premises, where the offence occurred, at
\naround 30.11.1994 and for the next few days. The testimony of PW-13 no doubt results in
\nsome suspicion about the swami, and his relationship with Savita. However, that alone, in the
\nabsence of any evidence to corroborate the Section 161 statements of PW-33 or PW-34 or
\nlead the Court to take into account such statements, and discard as untrue their sworn
\ntestimony before the Court, to the contrary.\n<\/p>\n
65.    It would now be necessary to examine the letters recovered from Savita, being Ex.
\nPW-37\/E-1 to E-28 and Ex. PW-39\/B. The first document is a 28 page long letter, addressed
\nby the swami to Savita. Both letters are written with intensity, and contain advise to Savita,
\nabout the transience of life, immortality of the soul, inevitability of destiny and fickleness of
\nthe mind, which is attached to objects, contexts and people. The swami emphasized that a
\nguru is a spiritual guide, whose objective is to help and educate the disciple to achieve peace
\nand understanding. The swami mentions about previous saints, who were able to achieve
\nwhat they set out to acquire, despite several barriers and obstacles put in their paths.
\nExhibiting at times a depth of feeling and intensity that is normally not seen between a guru
\nand shishya, the letters do not show anything incriminating against Savita and the Swami.
\nPW-37 mentioned, in his deposition, that these letters were seized pursuant to Savita’s
\ndisclosure statement. These letters, in the opinion of the Court only show that the swami felt
\nvery concerned about the mental unhappiness, and trauma, which Savita apparently
\nexperienced, and which he tried to minimize with the help of his advice (to her).\n<\/p>\n
66.    The next letter is Ex. PW-37\/R. The prosecution relied heavily on this, to say that
\nSavita and the swami had an intimate and illicit relationship, which, taken together with
\nseveral trysts between each other, constituted a motive for conspiracy and murder of Manoj.
\nPW-21, Rama Bajaj, deposed that sometime in 1995, one Swami, Gajanand, connected with
\nher guru, (the Appellant-swami in this case) had handed over an closed envelop to her and
\nasked it to be handed over to Savita. This envelop was taken, subsequently by the police, who
\nwent outside, and later returned, asked her to sign, in acknowledgement of handing over the
\nenvelope. She therefore, proved the memo Ex. PW-21\/A, the seizure memo in respect of the<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 36
\n envelope. The envelope was addressed to “Savita”, and was handed over when PW-21 was
\nsitting with her lady friends. PW-37 initially stated that he had seized the letter PW-37\/R; he
\nhowever, later clarified that he did not do so. PW-45 Rajbir, the last IO in the case, deposed
\nhaving recovered Ex. PW-37\/R under memo Ex. PW-21\/A. Now, Ex. PW-21\/A mentions an
\nenvelope, as well as some letter in it. However, it does not identify the letter as a two page
\ndocument, such as Ex. PW-37\/R. In her evidence, PW-21 merely stated that the envelope was
\nrecovered from her possession; she did not say that Ex. PW-37\/R was taken out of it; she
\ndoes not also identify it. Her signatures are not found on Ex. PW-37\/R. To compound these
\ncomplications, the Trial Court’s question to Savita, under Section 313, was that Ex. PW-37\/R
\nwas recovered on 13.09.1995 from her possession. The swami’s statement under Section 313
\nwas, however, that Ex. PW-37\/R was forcibly procured from him, after his arrest.\n<\/p>\n
67.    It was argued on behalf of the Appellants that having regard to the circumstances in
\nwhich the recovery of Ex. PW-37\/R is alleged to have been made, and the further fact that the
\nletter was not put to Savita, suitably in examination under Section 313, it was not correct for
\nthe trial court to have relied on the document. The decision of the three judge Bench in Sarda
\nwas relied on for this purpose; it was also contended that the course suggested by the
\nprosecution to put the correct query to Savita, in the appellate stage, would result in grave
\nprejudice, because even if the case were to be remanded for considering whether to permit
\nher to lead additional evidence, now, 17 years after the incident, prejudice is inherent and writ
\nlarge. In this context, it was submitted that the only witness proving the document, PW-45
\nRajbir died some while ago, during an encounter operation. It was argued that the Appellant’s
\nchance of cross-examining him, on this aspect therefore would be denied; equally, the
\nappellant’s opportunity to put other letters written by the swami, showing intense and close
\nrelationship, to PW-45 is deprived. Savita’s counsel relied on the decision reported as
\nMachander v. State of Hyderabad,<\/a> (1955) 2 SCR 524, where it was held by the Supreme
\nCourt, rejecting a similar request, as follows:\n<\/p>\n
       “We were asked to reopen the question and, if necessary, to remand the case. But we
\n       decline to do that. Judges and Magistrates must realise the importance of the
\n       examination under Section 342 of the Criminal Procedure Code and this Court has
\n       repeatedly warned them of the consequences that might ensue in certain cases. The
\n       appellant was arrested in December 1950 and has been on his trial one way and
\n       another ever since, that is to say, for over 4\u00bd years. We are not prepared to keep
\n       persons who are on trial for their lives under indefinite suspense because trial judges
\n       omit to do their duty. Justice is not one-sided. It has many facets and we have to draw
\n       a nice balance between conflicting rights and duties. While it is incumbent on us to
\n       see that the guilty do not escape, it is even more necessary to see that persons accused
\n       of crime are not indefinitely harassed. They must be given a fair and impartial trial<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 37
\n        and while every reasonable latitude must be given to those concerned with the
\n       detection of crime and entrusted with the administration of justice, limits must be
\n       placed on the lengths to which they may go. Except in clear cases of guilt, where the
\n       error is purely technical, the forces that are arrayed against the accused should no
\n       more be permitted in special appeal to repair the effects of their bungling than an
\n       accused should be permitted to repair gaps in his defence which he could and ought
\n       to have made good in the lower courts. The scales of justice must be kept on an even
\n       balance whether for the accused or against him, whether in favour of the State or not;
\n       and one broad rule must apply in all cases.”\n<\/p><\/blockquote>\n
Learned counsel argued that the subsequent rulings relied on by the prosecution did not take
\nnote of this decision, and the approach indicated in it, and that the applicability of the test of
\nprejudice, indicated in recent decisions, was evolved by two judge Bench decisions, as
\nopposed to the above ruling, rendered by three judges. On the other hand, the prosecution had
\nurged that the applicable test in all these cases, is one of prejudice (by referring to Basavraj
\nPatil; Shivaji Sahabrao Bobade; and Santosh Kumar Singh supra). It was stated that since
\nboth the swami and Savita were represented ably by counsel, who knew what was the case
\nput against them, and all the circumstances leading to the recovery of Ex. PW-37\/R had been
\nproved by PW-45, if at all the Court feels there is some prejudice, it would be in the fitness of
\nthings that the correct query is put to Savita, and depending upon her answer, the matter
\ncould be remanded to the limited extent to the trial court, if she feels that additional evidence
\nhas to be led by her, on that aspect.\n<\/p>\n
68.    Both Sarda and Machander are by three judge benches of the Supreme Court. They
\nunderline the importance of asking the right questions to the accused, and the prejudice being
\ninherent if the query is not put, but sought to be relied on to return a finding of guilt. The
\nsubsequent judgments, such as Bobade and Patil do not refer to the previous decision in
\nMachander, but seem to suggest that if found appropriate, the appellate Court may put the
\nquestion to the accused or his counsel. Undoubtedly, there appears to be a shift in approach.
\nHowever, even the later decisions emphasize that the Court should be alive to whether not
\nputting the right question would result in prejudice. In this case, Ex. PW-37\/R is sought to be
\nused as a prized evidence, to substantiate conspiracy between Savita and the swami, and an
\nattempt to cover up something, which is unsavoury and a crime. If the proper question is not
\nput to the accused – in this case, Savita, there can be no question that it would result in her
\nprejudice; even without putting the right question, the trial court took the letter into
\nconsideration, and this has resulted in prejudice, and conviction. These apart, the Court is also
\nalive to the fact that now, 17 years after the incident, it would be a travesty of justice to ask
\nthe relevant question to Savita, and if requested for by her, remit the matter for permission to<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 38
\n lead further evidence. This course will undoubtedly prejudice her, as it will amount to
\nadmitting that PW-45’s version was correct. That witness cannot now be cross-examined
\nsince he is no longer alive. Furthermore, prejudice is also discernable, because it would be
\ndifficult, if not impossible, for Savita, to lead further evidence on any aspect – howsoever
\nlimited, due to long passage of time.\n<\/p>\n
69.    Another reason why the Court feels the inappropriateness of agreeing to the
\nprosecution to question Savita, is that the circumstances surrounding recovery of Ex. PW-
\n37\/R are suspicious. PW-21 merely referred to the envelope, recovered under Ex. PW-21\/A.
\nShe did not mention about the letter, said to have been extracted from it, by PW-45.
\nFurthermore, significantly, to the extent she does not support the prosecution on this aspect,
\nshe was not declared hostile, or cross-examined, which is significant. Her deposition clearly
\ncontradicts that of PW-45, who mentions having seized Ex. PW-37\/R in her premises. It is
\ninconceivable that the witness to recovery of an envelope is not made witness to the recovery
\nof the most relevant prosecution piece of evidence, i.e. Ex. PW-37\/R. For all these reasons,
\nthis Court is of opinion that Ex. PW-37\/R should not have been taken into account, in
\nevidence; the trial court’s findings to the contrary cannot be sustained.\n<\/p>\n
70.    Another fact which the prosecution had relied on was the alleged conversations which
\nSavita held with the swami, over telephone. To establish this, reliance was placed on the
\ndeposition of PW-44, Ms. Porus, the owner or service provider of a STD booth at East Patel
\nNagar. This witness could not positively identify Savita as one of her customers; she could
\nnot also depose, with any degree of specificity that Savita used to make STD calls to the
\nswami’s Hardwar telephone number. There is something in the evidence that a few calls were
\nmade to a place in Hardwar, from the telephone booth; however, the identity of the person
\nmaking the calls is utterly unclear. In these circumstances, these facts cannot be considered as
\nsuspicious circumstances, or conclusively proven circumstances. The trial court fell into error
\nin holding otherwise.\n<\/p>\n
IV.    Tape recordings relied on by the prosecution\n<\/p>\n
71.    The prosecution alleged – through PW-26 that pursuant to authorization from the
\nDCP, a police party went to Rishikesh, and on the basis of the authorization, kept a
\nsurveillance over the conversations from the swami’s end, over telephone. PW-38 deposed
\nthat on three dates, in September, 1995, the police party listened to conversations, and on the
\nbasis of pre-decided signals, recorded them. The general purport of two of these tape<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                      Page 39
\n recordings was that one Mr. Sharma posed himself to be a CBI official, and sought to extort
\nthe swami in respect of a murder which had taken place in East Patel Nagar, in 1994. The
\nthird conversation was with someone, and the swami, instructing the latter to deliver a letter.
\nPW-45 marked the three transcripts of the tapes. PW-26 exhibited them. The prosecution also
\nrelies on PW-41’s evidence; he is a voice analyst, who prepared a report which was submitted
\nin evidence, to say that the swami’s conversations had been recorded.\n<\/p>\n
72.    The appellants argue, quite pertinently that although transcripts have been marked in
\nevidence, the trial court did not play the tapes during the trial. It is argued, significantly, that
\nthe authorization even from the concerned police officer, to tap the telephone, which is
\nspoken about by the witness, has been exhibited. Besides, these concerns, the Court observes
\nthat the concerned MTNL officer who was involved in the tape recording has neither been
\nnamed nor produced as a prosecution witness. Furthermore, the prosecution relied on the
\nevidence of PW-26 and PW-38, both of whom mentioned that a private tape recorder was
\nused for this purpose. That instrument was not seized; one wonders how such a “private”
\nphone tapping device was available, and if the police had authority to record conversations,
\nas they claim they did, why no official device was used. No record of the kind of instrument
\nused has been filed. Most crucially, none of the witnesses who claim to have witnessed or
\nassisted in the recording procedure, in fact knew, were familiar with the swami’s voice.
\nSimilarly, there is nothing to show that the telephone number under surveillance and from
\nwhich the conversations were recorded, belonged to or was accessed by the swami.\n<\/p>\n
73.    So far as the expert evidence is concerned, the Court notes that the transcripts relied
\non by the trial court do not show the exact conversations, and who spoke what. Though the
\nvoice samples given to PW-41, are said to match those in the three tape-recordings, in the
\nabsence of identity of those conversing, in the transcripts, it would be unsafe for the Court to
\nrely on this evidence. The rulings in R.M. Malkani; Ziyauddin Burhanuddin Bukhari and Ram
\nSingh (supra) have mandated safeguards, which are to be followed by courts while taking into
\naccount tape-recorded telephonic conversations. Here, none of the witnesses knew, or could
\nhave identified the swami’s voice; none of them have shown convincingly that the possibility
\nof tampering with tape recordings had been eliminated. Besides, the authenticity of the tapes
\nbecomes questionable, since the prosecution does not produce the authority documents which
\npersuaded the MTNL officials to accept the request for telephone tapping; in fact even
\nMTNL officials did not depose in support of the prosecution, corroborating its version. The
\nauthorities are uniform and clear on this aspect; the voice of the accused, or the maker to<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                         Page 40
\n whom a conversation was attributed, had to be identified by someone familiar with it. That is
\nnot the case here; the prosecution merely points at the transcripts and states that copies were
\ngiven. In the absence of proof that the swami’s conversation was in the tapes, by one who
\nwas familiar with his voice, the Court cannot jump to the conclusion that he was one of the
\nparticipants in the three telephonic tape recordings. In view of this finding, it is held that the
\ntrial court fell into error in considering the alleged transcripts of telephonic conversations, or
\neven the conversations, and concluding that it constituted a proven suspicious circumstance.\n<\/p>\n
V. Recovery of Jewellery and its identification and recovery of weapons<\/p>\n
74.    According to the prosecution, and deposition of PW-26 jewellery is alleged to have
\nbeen recovered from the premises of the swami, Ravi Chauhan and Asutosh. It is alleged that
\npursuant to statement of Ravi Chauhan, eight rings were recovered from E-396, First floor, JJ
\nColony, Inder Puri, New Delhi through Memo Ex. PW26\/C. Ashutosh was arrested at the
\npointing out of Ravi Chauhan and his disclosure statement Ex. PW26\/D led to recovery of
\nsix pairs of ear tops, one pair of ear rings, one pair of jhumka weighing 46 gms by Memo Ex.
\nPW26\/E. PW27 Const. Babu Lal deposed that on 18.01.1995 he collected 8 pulandas from
\nMHC (M) and deposited them in CFSL, Lodhi Complex by RC No.214\/21. It is alleged that
\nwhen the police party visited and questioned the swami, who opened a steel almirah and took
\nout a red coloured potli containing eight gold bangles, two gold karas, one gold chain, one
\nmangal sutra and a necklace, which were taken into possession by Memo Ex. PW37\/N.\n<\/p>\n
75.    PW36 Shri Paramjit Singh, Metropolitan Magistrate, Tis Hazari Courts deposed that
\non 04.11.1995 an application for the TIP of the case property was marked to him and the TIP
\nwas fixed for 10.11.1995 by his endorsement Ex.PW36\/A and on 10.11.1995 the TIP of the
\ncase property was fixed for 15.11.1995 by endorsement Ex. PW36\/B. On 15.11.1995 Jagdish
\nRai, father of deceased identified the case property and he prepared the TIP proceedings for
\nthe identification of the case property by Ex.PW36\/C. He gave certificate regarding the
\ncorrectness of the proceedings was given to the IO by endorsement Ex.PW-36\/E.\n<\/p>\n
76.    PW-3 claimed to have purchased the jewellery. He testified that jewellery was bought
\nfor Savita, from R.R. Jewllers. This witness did not interestingly, mention about the jewellery
\nor its particulars in the first two statements, recorded by him, on 25-12-1994 and 11-2-1995.
\nThere is mention of jewellery for the first time, on 04.04.1995. The witness PW-3 however, is
\ngeneral and unspecific in his evidence on this aspect. The second aspect is that he states that<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                        Page 41
\n particulars about the jewellery were obtained from Savita. Now, the prosecution story is that
\nSavita was suspected by the family; that is what PW-3 stated in his second statement dated
\n11.02.1995. If that were correct, these details were allegedly obtained after 11.02.1995. This
\ncontradicts the prosecution story about Savita’s conduct. Moreover, the prosecution evidence
\nis also that Savita left Manoj’s house in January, 1995. The second aspect is that PW-1,
\nManoj’s mother, expressed unawareness of the jewellery and particulars looted. She stated
\nthat the jewellery for Manoj’s marriage, and whatever was given to Savita, was bought by her
\nhusband, PW-3. The latter mentioned that jewellery was purchased from R.R. Jewellers.
\nHowever, no evidence of that fact was led; no receipt or document was placed on the record,
\nand the prosecution also did not examine anyone from R.R. Jewellers. The third aspect is that
\neven though the jewellery is said to have been recovered in the second week of September,
\n1995, the prosecution got the test identification parade for the jewellery, done in November,
\n1995. No explanation for this delay has been given. The other significant aspect which the
\nCourt cannot overlook is that even though the prosecution made no headway for about 10
\nmonths, once the arrests were made, all the missing items of jewellery were recovered. If
\nthere indeed was a conspiracy to kill Manoj, and the theft of jewellery was to throw the
\nauthorities off the scent, there was no reason for anyone, much less Ashutosh and Ravi
\nChauhan, to keep the items of jewellery. One last point of discrepancy is that prosecution
\nwitnesses, such as PW-18 and PW-1 have deposed that a video recording of the marriage
\nbetween Manoj and Savita existed. If that were seized and produced in evidence, it would
\nhave settled the question whether the items of jewellery recovered were Savita’s. The
\nprosecution’s failure to produce it, also improbabilizes the recovery and identification of the
\njewellery produced in Court, and relied as another incriminating circumstance.\n<\/p>\n
77.    PW-26 and PW-37 deposed having witnessed recovery of one knife each upon the
\ndisclosure statements of Asutosh and the swami. These weapons were sent for forensic
\nexamination; however, the report did not reveal anything incriminating against either
\nappellant. These weapons were also recovered pursuant to disclosure statements, and
\nwitnessed only by the police. Now, even though the law is clear that there is no invariable
\nrule that recoveries should be testified by independent witnesses, what is noteworthy in this
\ncase is that the investigation had reached a dead end, and clues were gathered 10 months
\nlater. The places where recoveries of weapons effected, were not isolated. It was possible for
\nthe prosecution, by way of precaution and as a prudent measure, to associate members of the
\npublic, as witnesses to these recoveries. Not doing so has undermined the prosecution.\n<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                     Page 42
\n Further, it is not as if the swami and Asutosh had any previous history of violence or crime,
\nto keep weapons such as knives; the evidence also does not disclose any other reason for
\nthem to keep these weapons, especially if they had committed the offence. It would have
\nbeen easiest for the swami to get rid of it, considering that Hardwar is on the banks of the
\nriver Ganga. Similarly, if Asutosh a hired assassin, as the prosecution alleges, there was no
\npossible reason for him to hold on to the murder weapon.\n<\/p>\n
78.    For the above reasons, the Court is of opinion that the recovery and identification of
\njewellery and recovery of the knives, relied upon by the prosecution, are neither proved
\nbeyond reasonable doubt, nor is there anything especially incriminating in the manner shown
\nby the prosecution.\n<\/p>\n
VI.    Involvement of Ravi Chauhan and Asutosh<\/p>\n
79.    The earlier discussion of prosecution evidence has shown that apart from the
\ndisclosure statement of the swami, and the alleged recovery of articles, there is nothing to
\nconnect these two accused appellants, with the crime. For them to be involved on account of
\nstatements made by the swami, they are to be admissible. What is admissible here is only
\nthose portions of the statement, which led to the recoveries, and nothing more. That by itself,
\nin the absence of any other connecting evidence, admissible in law, cannot be the sole basis
\nfor holding that they too were involved in the commission of the crime, in this case. In
\nSunwat Khan (supra) the Supreme Court held as follows:\n<\/p>\n
       “Beaumont, C.J. and Sen, J. in Bhikha Gober v. Emperor 2 rightly held that the
\n       mere fact that an accused produced shortly after the murder ornaments which
\n       were on the murdered person is not enough to justify the inference that the
\n       accused must have committed the murder. There must be some further material to
\n       connect the accused with the murder in order to hold him guilty of that offence.
\n       Our attention was drawn to a number of decisions which have been summed up in
\n       a Bench decision of the Allahabad High Court in State v. Shankar Prasad<\/a> 3 in
\n       some of which a presumption was drawn of guilt from the circumstance of
\n       possession of stolen articles soon after a murder. We have examined these cases
\n       and it appears to us that each one of these decisions was given on the evidence
\n       and circumstances established in that particular case, and no general proposition
\n       of law can be deduced from them. In our judgment, no hard and fast rule can be
\n       laid down as to what inference should be drawn from a certain circumstance.
\n       Where, however, the only evidence against an accused person is the recovery of
\n       stolen property and although the circumstances may indicate that the theft and the
\n       murder must have been committed at the same time, it is not safe to draw the
\n       inference that the person in possession of the stolen property was the murderer.
\n       Suspicion cannot take the place of proof.”\n<\/p><\/blockquote>\n
In the present case too, there is no material on record to link these two accused with the
\nswami, or Savita; apart from the recoveries, no witness has spoken about their presence near
\nCrl.A.Nos. 786, 795, 919, 926\/2001                                                     Page 43
\n about the scene of crime, or its vicinity, at the relevant time. Therefore, it would be hazardous
\nfor the Court to hold that they were linked with the other co accused, and were part of a
\nconspiracy to commit it.\n<\/p>\n
VII.   Conspiracy<\/p>\n
80.    The prosecution story is that conspiracy was hatched by Savita and the swami in the
\nend of November, of first two days of December, 1994, to kill Manoj. The only circumstance,
\nwhich has some contemporaneous nexus with this theory is the deposition of PW-13 who
\nstated that the swami had requested him, sometime in September, 1995, to tell the police a
\nfalse fact that he (the swami) visited PW-13 in November, 1995. The other circumstances are
\nthat letters were written by the swami to Savita – two of them were recovered from her (those
\nletters not containing any incriminating material) and the third, from PW-21. These latter
\nfacts are post event, i.e. post 02\/03.12.1994.\n<\/p>\n
81.    The essence of the crime of conspiracy and the material a court can use, in the form of
\nstatement of a co-accused, was summarized by the Supreme Court in Bhagwan Swarup Lal
\nBishan Lal v. State of Maharashtra, (1964) 2 SCR 378, in the following words:\n<\/p>\n
       “Before dealing with the individual cases, as some argument was made in regard
\n       to the nature of the evidence that should be adduced to sustain the case of
\n       conspiracy, it will be convenient to make at this stage some observations thereon.
\n       Section 120-A of the Indian Penal Code defines the offence of criminal conspiracy
\n       thus:\n<\/p><\/blockquote>\n
       “When two or more persons agree to do, or cause to be done an illegal act, or an
\n       act which is not illegal by illegal means, such an agreement is designated a
\n       criminal conspiracy.”\n<\/p><\/blockquote>\n
       The essence of conspiracy is, therefore, that there should be an agreement
\n       between persons to do one or other of the acts described in the section. The said
\n       agreement may be proved by direct evidence or may be inferred from acts and
\n       conduct of the parties. There is no difference between the mode of proof of the
\n       offence of conspiracy and that of any other offence: it can be established by direct
\n       evidence or by circumstantial evidence. But Section 10 of the Evidence Act
\n       introduces the doctrine of agency and if the conditions laid down therein are
\n       satisfied, the act done by one is admissible against the co-conspirators. The said
\n       section reads:\n<\/p><\/blockquote>\n
       “Where there is reasonable ground to believe that two or more persons have
\n       conspired together to commit an offence or an actionable wrong, anything said,
\n       done or written by any one of such persons in reference to their common
\n       intention, after the time when such intention was first entertained by any one of
\n       them, is a relevant fact as against each of the persons believed to be so conspiring
\n       as well for the purpose of proving the existence of the conspiracy as for the
\n       purpose of showing that any such person was a party to it.”\n<\/p><\/blockquote>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 44
\n        This section, as the opening words indicate, will come into play only when the
\n       Court is satisfied that there is reasonable ground to believe that two or more
\n       persons have conspired together to commit an offence or an actionable wrong,
\n       that is to say, there should be a prima facie evidence that a person was a party to
\n       the conspiracy before his acts can be used against his co-conspirators. Once such
\n       a reasonable ground exists, anything said, done or written by one of the
\n       conspirators in reference to the common intention, after the said intention was
\n       entertained, is relevant against the others, not only for the purpose of proving the
\n       existence of the conspiracy but also for proving that the other person was a party
\n       to it. The evidentiary value of the said acts is limited by two circumstances,
\n       namely, that the acts shall be in reference to their common intention and in
\n       respect of a period after such intention was entertained by any one of them.”\n<\/p><\/blockquote>\n
82.    It is also settled authority (Mirza Akbar v. King Emperor, AIR 1940 PC 176 and
\nCaveeshar (supra)) that the phraseology in Section 10, Evidence Act, is not capable of being
\nwidely construed. Where the charge specifies the period of conspiracy, evidence of acts of
\nco-conspirators outside the period is not receivable in evidence. Here, the prosecution has
\nrelied mostly on acts of the appellants after the incident, i.e. the killing of Manoj. Such facts
\nare not considered as proof of such conspiracy, and certainly not sufficient to implicate any
\naccused on the sole charge of conspiracy. Furthermore, to establish conspiracy beyond
\nreasonable doubt, there has to be objective evidence, linking accused with each other, as well
\nas the recoveries said to have been recovered. The recovery of objects, in this case, without
\nthe necessary linkage between the co-accused, between each other, and the articles, therefore,
\ndoes not amount to acceptable proof of a conspiracy. There is also no statement of any one
\naccused, admissible, in law, which can implicate the others on the theory of agency. For these
\nreasons, the prosecution has not proved the conspiracy beyond reasonable doubt.
\nConclusions\n<\/p>\n
83.    As noticed in more than one place during this judgement, the prosecution relies on
\ncircumstantial evidence to establish the charge in this case. Contrary to the trial court’s
\nconclusions, the facts and materials brought on record during the trial are insufficient to hold
\nthat each of them was proved beyond reasonable doubt. Nor has each circumstance been
\nproved on application of the exacting standard of proof, i.e. beyond reasonable doubt. The
\nprosecution has also not established a conclusive link connecting each individual
\ncircumstance with the other, and all the appellants. The materials placed on the record in the
\nform of letters, and some evidence about Savita and the swami’s meetings, raise suspicions
\nabout their conduct. Their relationship – not being a spiritual one, but a more earthly one, of
\nlovers, can be arguably be inferred. However, the materials and evidence on the record do not<\/p>\n
Crl.A.Nos. 786, 795, 919, 926\/2001                                                       Page 45
\n bridge the gap between “may be true” and “must be true” so essential for a court to cross,
\nwhile finding the guilt of an accused, particularly in cases based on circumstantial evidence.\n<\/p>\n
84.    For the above reasons this Court is of opinion that the charges were not proved
\nbeyond reasonable doubt. All the appeals are, therefore, entitled to succeed; they are
\naccordingly allowed. The bail bonds and surety bonds furnished by the appellants or on their
\nbehalf are therefore cancelled. Criminal Appeals being CRL.A. 786\/2001, CRL.A. 795\/2001,
\nCrl.A.919\/2001 and Crl.A.926\/2001 are therefore, allowed.<\/p>\n
\n\n\n\n\n                                                                    (S.RAVINDRA BHAT)\n                                                                                    JUDGE\n\n\n\n\n                                                                            (G.P. MITTAL)\nAPRIL 28, 2011                                                                     JUDGE\n\n\n\n\nCrl.A.Nos. 786, 795, 919, 926\/2001                                                      Page 46\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Ashutosh Baneerjee Alias Pappu vs State on 28 April, 2011 Author: S.Ravindra Bhat * IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON: 14.01.2011 PRONOUNCED ON: 28.04.2011 + CRL.A. 786\/2001 SAVITA alias BABBAL ….. Appellant Through : Ms. Rebecca. M. John, Advocate along with appellant in person. versus STATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-140024","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nAshutosh Baneerjee Alias Pappu vs State on 28 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ashutosh-baneerjee-alias-pappu-vs-state-on-28-april-2011-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ashutosh Baneerjee Alias Pappu vs State on 28 April, 2011 - 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