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CASE NO.:

Appeal (crl.) 921 of 2000

PETITIONER:

BODH RAJ @ BODHA AND ORS.

RESPONDENT:

STATE OF JAMMU AND KASHMIR

DATE OF JUDGMENT: 03/09/2002

BENCH:

RUMA PAL & ARIJIT PASAYAT

JUDGMENT:

JUDGMENT

2002 Supp(2) SCR 67

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. These four appeals relate to a Division Bench Judgment

of the Jammu and Kashmir High Court dated 31.7.2000. While Criminal Appeal

Nos. 921/2000, 791/2001, 792/2001 have been filed by the accused, Criminal

Appeal No. 837/2001 has been filed by the State.

Ravinder Kumar (accused No. I), Ashok Kumar (accused No. 2) and Rajesh

Kumar (accused No. 6) were convicted by the Trial Court while Bodhraj

(accused No. 3), Bhupinder (accused No. 4), Subhash Kumar (accused No. 5)

and Rakesh Kumar (accused No. 7) were acquitted by the Trial Court, but the

High Court set aside their acquittal and convicted them. Rohit Kumar

(accused No. 8) and Kewal Krishan (accused No. 9) were acquitted by the

Trial Court and their acquittal has been upheld by the High Court. Another

accused i.e. Kishore Kumar was acquitted by the Trial Court. He having died

during the pendency of the appeal before the High Court. the appeal against

him was held to have abated. Accused Rajesh Kumar has not preferred any

appeal against the conviction as upheld by the High Court.

Accused No. 1 and accused No. 2 and accused No. 2 having been convicted

under Section 302 read with Section 120-B of the Indian Penal Code. 1860

(in short the IPC') were sentenced to suffer imprisonment for life and pay

a fine of Rs. 20.000 each. It was stipulated that for default in paying the

fine, each had to suffer another year of imprisonment. Similar was the case

with accused No. 6. So far as the accused Nos. 3. 4, 5 and 7 are concerned,

the High Court convicted and sentenced them at par with the other three

accused.

Factual scenario as highlighted by the prosecution is as follows:

Swaran Singh @ Pappi (hereinafter referred to as the 'deceased') was

running a finance company. Accused No. 2 (Ashok Kumar) and accused No. l

(Ravinder Kumar) had taken huge amounts as loan from the deceased. They

suggested to the deceased to enter into a Financial arrangement. On the

fateful day i.e. 3rd August, 1994, deceased went to his business premises.

After about 10 minutes of his arrival accused -Ravinder Kumar also reached

his office. As the deceased had brought some money from his house which was

to be deposited in a bank, Darshan Singh (PW 15) an employee was asked to

make the deposit. Since no vehicle was available. Ravinder Kumar gave the

key of his car to Darshan Singh. The registration number of the car is CH01

5408. Darshan Singh left the office around 11.30 a.m. and returned around

1.30 p.m. On his return, Darshan found the deceased in the company of

accused Ravinder Kumar and Ashok Kumar. He returned the key of the car to

Ravinder Kumar. After about 10/15 minutes. deceased and accused-Ashok

Kumara left the office. At the time of his departure, deceased told Darshan

to take the food which was to come from his house, as they were going out

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to have food. Accused-Ashok Kumar and the deceased went to Hotel Asia for

taking their food. Later on, accused -Ravinder Kumar joined them. All the

three after taking food went to the business premises of Gian Singh (PW-1)

who was a property dealer and broker. He was informed that they were

interested in purchasing some land for setting up a flour mill. Ravinder

and Ashok Kumar persuaded the deceased to accompany them for the selection

of the site. Along with Gian Singh (PW-1), ancther property dealer was also

picked up. This was done as PW-1 wanted to go to the site in question along

with Pratap Singh (PW-2) who was his business partner, AII of them went to

village Dhiansar where the land was situated. They went by car No. JK-02B

566. As accused-Ravinder Kumar appeared to be in extreme haste, he told

that site has been approved and PWs. l and 2 were told that they would

settle the matter at their business premises. When they were returning. the

deceased was attacked by some persons (later on identified as accused No. 3

to 10). The accused l and 2 remained silent spectators and even did not pay

any heed to the pitiful plea of the deceased to bring the car so that he

can escape the attacks. On the contrary, they left the scene of occurrence

leaving behind the deceased and PWs. l and 2. They did not report the

matter to the police and even though they claimed to be friends of the

deceased, did not even inform family members of the deceased, They owed

huge amounts and issued cheques for which they had made no provision. Ashok

Kumar made use of the cheque book of his wife and issued a cheque in

respect of her bank account, thought. the same was not operated for quite

some time. Accused -Rajesh Kumar's presence was established as later on, a

licensed revolver belonging to accused-Ravinder Kumar was recovered at the

instance of Ravinder Kumar. The license of the revolver was seized from the

house of Ravinder Kumar and father of the said accused produced the same

before the police in the presence of witnesses. Pistol of the deceased was

also recovered at his instance. The license in respect of the pistol was

seized on personal search of the deceased at the spot of occurrence. One

Hari Kumar (PW-18) stated that accused Ravinder Kumar and Ashok Kumar made

a statement before him that they had got the deceased killed because he was

demanding money from them. From the fact that the land was to be selected

was only known to accused Ravinder Kumar and Ashok Kumar, an inference was

drawn that it was these two accused w ho had hired the assailants and

planted them well in advance for the ultimate elimination of deceased. The

fact that accused Ravinder Kumar left the office of the deceased earlier

and joined them at the Hotel was considered significant, as the intervening

period was utilized by him to inform the assailants as to where they would

be taking the deceased for the assaults being carried out. Accused Rajesh

Kumar and Subhash Kumar had also suffered bullet injury which was on

account of the firing done by the deceased while he was trying to save his

life.

Recoveries of various weapons used by assailants were made pursuant to the

disclosures made by the accused Bodhraj, Bhupinder, Subhash Kumar Rajesh

Kumar and Rakesh Kumar. Recoveries were witnessed by several witnesses.

Bodhraj was identified by Jhuggar Singh (PW 6) and Santokh Singh (PW 7).

Bhupinder Singh was identified by Hari Kumar (PW 18) and Gurmit Singh.

Similar was the case with accused Subhash Kumar. Rajesh Kumar was

identified by R\003njit Sharma (PW 23) and Hari Kumar (PW 18). Accused Rakesh

Kumar was identified by Ranjit Sharma (PW 23) and Gurmit Singh. was not

examined in Court. Accused Bodhraj, Bhupinder. Rakesh Kumar, Rohit and

Kewal Krishan were identified by Nainu Singh (PW 9) while Subhash Kumar and

Rajesh Kumar were identified by Santokh Singh (PW 7) and Surjit Singh (PW

8). The identification was done on two dates i.e. 11.8.1994 and 16.8.1994.

Different eye-witnesses claimed to have seen the occurrence either in full

or partially. PWs. l, 2, 7, 8 and 9 were really the crucial witnesses.

Santokh Singh (PW 7) was disbelieved by Trial Court as well as by the High

Court.

In order to establish the pleg that conspiracy was hatched, reliance was

placed on the plea of Kapur Chand who was not examined in Court. Several

other circumstances were highlighted by the prosecution, to establish the

plea of conspiracy. It was submitted that nobody knew except PW-2 where the

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land was. If he was the person who had hired the assailants, they (meaning

PW l and deceased) would not have gone empty handed. But, knowing

particularly well that the deceased was always armed, accused Ravinder

purchased a car which was used as a get away car but never transferred it

to his name. It was, however, conceded by the learned Advocate General

appearing before the Trial Court that there was no direct evidence of

conspiracy. Police seems to have proceeded to reach the spot on getting

some reliable information.

In order to attach vulnerability to the judgment of the High Court, several

points were urged by the learned counsel for the accused persons. It was

pointed out that there was no evidence of any conspiracy. The only witness

Kapur Chand who is alleged to have stated before the police about the

conspiracy was not examined. Even the Investigating Officer has admitted

that there was no direct evidence of conspiracy. There was no evidence

collected against the accused persons to link them with the crime till

11.8.1994 when suddenly material supposed to have come like a flood-gate.

Initiation of action by the police is also shrouded in mystery. It has not

been disclosed in either Trial Court or High Court as to how the police

received information about the killing and arrived at the spot. Though it

was claimed at some point of time that a telephone call was supposedly

made, but the FIR was registered on the bias of reliable sources. There are

no independent witnesses. It is surprising as alleged killing took place in

the evening time at a highly populated place. The so called identification

of the witnesses is highly improbable. Additionally, having discarded the

evidence of PW-7 the Courts erred in believing the evidence of PWs. 8 and 9

who stand on the same footing. The presence of these witnesses is highly

doubtful. Their behaviour was un-natural and there is no corroborative

evidence. They are persons with criminal records. Since their presence is

doubtful, Identification, if any. done by them becomes ipso facto doubtful.

The recoveries purported to have done pursuant to the disclosure made by

the accused persons is highly improbable and requisite safeguards have not

been adopted while making alleged recoveries. The case against four of the

accused persons who were acquitted by the Trial Court rests on

circumstantial evidence. The approach to be adopted by the Court while

dealing with circumstantial evidence was kept in view by the Trial Court.

Unfortunately, the High Court did not do so. It was further submitted that

there was no complete chain of circumstances established which ruled out

even any remote possibility of anybody else than the accused persons being

the authors of the crime. The examination of so-called eye-witnesses PWs l

and 2 was belated and, therefore, should not have been accepted. The

evidence of PWs vis-a-vis accused persons is so improbable that no credence

should be put on it. The High Court should not have disturbed the findings

of innocence of four accused persons without any plausible reasoning.

On the contrary, learned counsel for the prosecution submitted that the

background facts and the evidence on record has to be tested with a

pragmatic approach. The situation which prevailed in the area at the

relevant time cannot be lost sight of. Accused I and 2 are very influential

persons. The witnesses were naturally terrified. It has come on record that

witnesses PWs l and 2 were too terrified even to depose and had asked for

police protection. There is no reason as to why the witnesses would depose

falsely against accused l and 2 who are known to them. There is nothing

irregular or illegal in the procedure adopted while effecting recovery

pursuant to the disclosure made by the accused persons.

Before analyzing factual aspects it may be stated that for a crime to be

proved it is not necessary that the crime must be seen to have been

committed and must, in all circumstances be proved by direct ocular

evidence by examining before the Court those persons who had seen its

commission. The offence can be proved by circumstantial evidence also. The

principal fact or factum probandum may be proved indirectly by means of

certain inferences drawn from factum probans, that is, the evidentiary

facts. To put it differently circumstantial evidence is not direct to the

point in issue but consists of evidence of various other facts which are so

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closely associated with the fact in issue that taken together they form a

chain of circumstances from which the existence of the principal fact can

be legally inferred or presumed.

It has been consistently laid down by this Court that where a case rests

squarely on circumstantial evidence. the inference of guilt can be

justified only when all the incriminating facts and circumstances are found

to be incompatible with the innocence of the accused or the guilt of any

other persons. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063),

Eradu and Ors. v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v.

State of Karnataka, AIR (1983) SC 446, State of U.P. v. Sukhbasi and Ors.,

AIR (1985) SC 1224, Balwinder Singh v. State of Punjab, AIR (1987) SC 350,

Ashok Kumar Chatterjee v. State of MP AIR (1989) SC 1890. The circumstances

from which an inference as to the guilt of the accused is drawn have to be

proved beyond reasonable doubt and have to be shown to be closely connected

with the principal fact sought to be inferred from those circumstances. In

Bhagat Ram v. State of Punjab, AIR (1954) SC 621), it was laid down that

where the case depends upon the conclusion drawn from circumstances the

cumulative effect of the circumstances must be such as to negative the

innocence of the accused and bring the offences home beyond any reasonable

doubt.

We may also make a reference to a decision of this Court in C Chenga Reddy

and Ors. v. State of A,P,, [1996] 10 SCC 193, wherein it has been observed

thus:

"In a case based on circumstantial evidence. the settled law is that the

circumstances from which the conclusion of guilt is drawn would be fully

proved and such circumstances must be conclusive in nature. Moreover, all

the circumstances should be complete and there should be no gap left in the

chain of evidence. Further the proved circumstances must be consistent only

with the hypothesis of the guilt of the accused and totally inconsistent

with his innocence.....'"

In Padala Veera Reddy v. State of A.P. and Ors.. AIR (1990) SC 79, it was

laid down that when a case rests upon circumstantial evidence, such

evidence must satisfy the following tests;

(1) the circumstances from which an inference of guilt is sought to be

drawn, must be cogently and firmly es'ablished,

(2) those circumstances. should be of a definite tendency unerringly

pointing towards guilt of the accused.

(3) the circumstances. taken cumulatively should from a chain so complete

that there is no escape from the conclusion that within all human

probability the crime was committed by the accused and none else, and

(4) the circumstantial evidence in order to sustain conviction must be

complete and incapable of explanation of any. other hypothesis than that of

the guilt of the accused and such evidence should not only be consistent

with the guilt of the accused but should be inconsistent with his

innocence.

In State of U.P. v. Ashok Kumar Srivastava, (1992) Crl.L.J.l 104, it was

pointed out that great case must be taken in evaluating circumstantially

evidence and if the evidence relied on is reasonably capable of two

inferences, the one in favour of the accused must be accepted. h was also

pointed out that the circumstances relied upon must be found to have been

fully established and the cumulative effect of all the facts so established

must be consistent only with the hypothesis of guilt.

Sir Alfred Wills in his admirable book "Wills" Circumstantial Evidence"

(Chapter VI ) lays down the following rules specially to be observed in the

case of circumstantial evidence: (1) the facts alleged as the basis of any

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legal inference must be clearly proved and beyond reasonable doubt

connected with the factum probandum, (2) the burden of proof is always on

the party who asserts the existence of any fact, which infers legal

accountability, (3) in all cases, whether of direct or circumstantial

evidence the best evidence must be adduced which the nature of the case

admits, (4) in order to justify the inference of guilt, the inculpatory

facts must be incompatible with the innocence of the accused and incapable

of explanation, upon any other reasonable hypothesis than that of his

guilt, (5) if there be any reasonable doubt of the guilt of the accused, he

is entitled as of right to be acquitted"

There is no doubt that conviction can be based solely on circumstantial

evidence but it should be tested by the touch-stone of law relating to

circumstantial evidence laid down by the this Court as far back as in 1952.

In Hanumant Govind Nargundkar and Anr. v. State of' Madhya Pradesh, AIR

(1952) SC 343, wherein it was observed thus:

"It is well to remember that in cases where the evidence is of a

circumstantial nature. the circumstances from which the conclusion of guilt

is to be drawn the first instance be fully established and all the facts so

established should be consistent only with the hypothesis of the guilt of

the accused. Again, the circumstances should be of a conclusive nature and

tendency and they should be such as to exclude every hypothesis but the one

proposed to be proved. In other words. there must be a chain of evidence so

far complete as not to leave any reasonable ground for a conclusion

consistent with the innocence of the accused and it must be such as to show

that within all human probability the act must have been done by the

accused."

A reference may be made to alter decision in Sharad Birdhichand Sarda v.

State of Maharashtra, AIR (1984) SC 1622. Therein, while dealing with

circumstantial evidence, it has been held that onus was on the prosecution

to prove that the chain is complete and the infirmity of lacuna in

prosecution cannot be cured by false defence or plea. The conditions

precedent in the words of the this Court, before conviction could be based

on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn

should be fully established. The circumstances concerned must or should and

not may be established,

(2) the facts so established should be consistent only with the hypothesis

of the guilt of the accused. that is to say, they should not be explainable

on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should excludee very possible hypothesis except the one to be

proved, and

(5) there must be a chain of evidence so compete as not to leave any

reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been

done by the accused.

Emphasis was laid as a circumstance on recovery of weapon of assault, on

the basis of informations given by the accused while in custody. The

question is whether the evidence relating to recovery is sufficient to

fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872

(in short the Evidence Act') is by way of proviso to Sections 25 to 26 and

a statement even by way of confession made in police custody which

distinctlv relates to the fact discovered is admissible in evidence against

the accused, This position was succuinctly dealt with by the this Court in

Delhi Admn v, Balakrishan. AIR (1972) SC 3 and Md. Inayatullah v. State of

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Maharashtra. AIR (1976) SC 483. The words "so much of such information" as

relates distinctlv to the fact thereby discovered. are very important and

the whole force of the section concentrates on them. Clearly the extent of

the information admissible must depend on the exact nature of the fact

discovered to which such information is required to relate, The ban as

imposed by the preceding sections was presumably inspired by the fear of

the Legislature that a person under police influence might be induced to

confess by the exercise of undue pressure. If al! that is required to lift

the ban be the inclusion in the confession of information relating to an

object subsequently produced, it seems reasonable to suppose that the

persuasive powers of the police will prove equal to the occasion: and that

in practice the ban will lose its effect. The object of the provision i.e.

Section 27 was to provide for the admission of evidence which but for the

existence of the section could not in consequences of the preceding

sections, be admitted in evidence. It would appear that under Section 27 as

it stands in order to render the evidence leading to discovery of any fact

admissible, the information must come from any accused in custody of the

police. The requirement of police custody is productive of extremely

anomalous results and may lead to the exclusion of much valuable evidence

in cases where a person, who is subsequently taken in to custody and

becomes an accused. after committing a crime meets a police officer or

voluntarily goes to him or to the police station and states the

circumstances of the crime which lead to the discovery of the dead body,

weapon or any other material fact. in consequence of the information thus

received from him. This information which is otherwise admissible becomes

inadmissible under Section 27 if the information did come from a person not

in the custody of a police officer or did come from a person not in the

custody of a police officer. The statement which is admissible under

Section 27 is the one which is the information leading to discovery Thus,

what is admissible being the information, the same has to be proved and not

the opinion formed on it by the police officer. in other words, the exact

information given by the accused while in custody which led to recovery of

the articles has to be proved. !t is, therefore, necessary for the benefit

of both the accused and prosecution that information given should be

recorded and proved and if not so recorded, the exact information must be

adduced through evidence. The basic idea embedded in Section 27 of the

Evidence Act is the doctrine of confirmation by subsequent events. The

doctrine is founded on the principle that if any fact is discovered as a

search made on the strength of any Information obtained from a prisoner.

such a discovery is a guarantee that the Information supplied by the

prisoner is true. The information might be confessional or non- inculpatory

in nature but if it results in discovery of a fact. it becomes a reliable

information. it is now well settled that recovery of an object is not

discovery of fact envisaged in the section. Decision of Privy Council in

Palukuri Kotayya v. Emperor AIR (1947) PC 67, is the most quoted authority

of supporting the interpretat ion that the "fact discovered" envisaged in

the section embraces the place from which the object was produced, the

knowledge of the accused as to it, but the information given must relate

distinctly to that effect. [see Stale of Maharashtra v. Dam Gopinath Shirde

and Ors, (2000) Crl.L.J 2301. No doubt, the information permitted to be

admitted in evidence is confined to that portion of the information which

"distinctly relates to the fact thereby discovered.'' But the information

to get admissibility need not be so truncated as to make it insensible or

incomprehensible. The extent of information admitted should be consistent

with understandability. Mere statement that the accused led the police and

the witnesses to the place where he had concealed the articles is not

indicative of the information given.

Coming to evidence brought on record to substantiate the accusations, it is

at least clear that accused Nos. l and 2 left in the company of the

deceased. Some evidence has also been brought to establish the motive i.e.

the indebtedness of the accused to the deceased. In addition to this is the

evidence of PWs l and 2. So far as accused No. 2 is concerned, he almost'

stands on the same footing as accused No. l. Additionally, Hari Kumar

(PW-18) has stated that accused No. 2 came to his shop and took sweets and

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left in car No. 566 JK02B belonging to accused No. 1. He has also stated

about the return of accused No.2 to the shop and a demand for a scooter.

This witness has also stated to have seen car No. 5408-CH01 passing in

front of the shop carrying seven to eight persons out of which he

identified accused Kishore Kumar (since dead). PW-9 also has stated to have

seen the deceased running being chased and he claimed to have seen the

deceased firing. He stated about the accused Nos. l and 2 giving 'Lalkara'

that the deceased shall be Killed and should not escape. Accused No. ! had

fired some shots in the air. Another white car No. 5408 CHOI was also

standing there. He had identified accused Bodhraj, Bhupinder, Rakesh Kumar

and the two acquitted accused Rohit and Kewal Krishan. It has to be noted

that Car No. 5408 CHOl was found discarded after it had met with an

accident. This car is stated to be the get away car. As the evidence of

PWs. l and 2 are very material it is desirable to note as to w hat their

evidence was. On 3 August, 1994 PW-1 was in his shop. At about 4.30 p.m.,

A-1 accompanied by the deceased and A-2 came to meet him in car. A-1

informed that he and his colleagues in the car were interested in setting

up a flour mill. A-2 was in a hurry to proceed towards the site. On their

way, PW-1 asked A-1 to stop the car to pick up PW-2. A-2 was reluctant to

stop the car and only on PW-1' s insistence PW-2 was picked up. When the

deceased was attacked by the assailants and was pursued by the assailants

he had started running towards the national highway. A-2 also ran after the

deceased whereas A-1 kept standing near PW-1, The deceased asked A-1 to

bring the car immediately but A-1 only shouted to one Short that the

deceased should not escape. PW-1 identified A-1 and A-2 who were present in

the Court.

PW-2 stated that on 3 August, 1994, he was sitting at his house when at

about 4 to 4.30 to 5.00 p.m. PW-1 accompanied by A-l and A-2 came to his

residence and asked him to show some land to the persons accompanying them

for the installation if rice-cum-flour mill. They all went to Dhiansar by

car. When they were still seeing the land A-2 told them that he approved of

the land and led them to the shop. While returning the deceased was

attacked by 4-5 persons who were armed with tokas, daggers etc. The

deceased started running away towards the canal and the assailants followed

him and assaulted him. Then PW-1 Immediately told him to inform the police,

by which time the deceased had started bleeding. and that he ran to ring up

the police. PW-2 however noticed that while the deceased was running, he

asked accused A-

1 to bring the car but the latter did not move. Meanwhile, PW-2 went to

the house of a contractor which was at a distance of 200 fts. from the

place of occurrence to make the telephone call. When he came back, he found

the dead body of the deceased lying on the road and heard accused A-2

telling accused A-l "Kam ho gaya let us go to Jammu." The presence of PWsl

and

2 at the place of occurrence is fortified from the fact that they were

witnesses to the seizure memos Ex. PW-GS,PW-GS/l. PW-GS/2 recorded by the

police immediately after incident.

Evidence of PWs. 8, 9 and 18 are also relevant and their evidence is to the

following effect. PW-8 (Surjit Singh) inter alia, stated as follows :

On 3rd August, 1994 he had gone for repair of his vehicle to Dhiansar. He

was at a tea stall near the garage when he saw vehicle Nos. 556 and 5408

parked on the other side of the road. He saw Kishore was armed with a

revolver. Shots fired by the deceased caused injuries to two assailants.

Rajesh shot the deceased. The deceased was then surrounded by the

assailants and attacked by tokas, swords, etc. Accused Kishore fired in the

air and the assailants ran towards vehicle No. 5408. He had noticed accused

A-1 and A-2 standing near their vehicle. The assailants reversed the other

car and drove towards the deceased and accused Rajesh came out of the

vehicle, picked up the weapon lying near the deceased and they mounted on

the vehicle and drove off. A-1 and A-2 also drove off.

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PW-9 (Nainu Singh) inter alia stated as follows.:

On 3rd August, 1994, he was getting a vehicle repaired in a workshop at

Dhiansar. He along with Surjit Singh went towards a tea shop, They heard

sound of fire arms being used. They saw the deceased bleeding profusely and

running towards Jammu Pathankot road. Six-seven assailants were chasing

him. They were armed with tokas, churas and revolver. The deceased while

running had fired at the assailants. Kishore Kumar who was armed with a

pistol was running after the deceased. The shots fired by the deceased were

fired in his presence. Two of the accused were identified by him as Subhash

Kumar and Rajesh Kumar. When the deceased reached near the road Rajesh

Kumar fired at him and hit on his arm. Thereafter, six to seven persons

surrounded the deceased. They were said to be armed with Chakus (knives)

and Churas (bigger knives) and were stabbing the deceased. Near the work

shop gate car No. 566 was standing. This was of grey (slaty) colour, A-2

and A-1 had given a lalkara that the deceased should be killed and should

not escape. A-1 had fired some shots in the air. Another white car bearing

No. CH01 5408 was also parked there. He noticed the accused sitting in the

car. He had identified Krishan Kumar, A-2 and A-1. The driver reversed the

car. It was stopped near the dead body of the deceased. The revolver lying

near the deceased was picked up. After the car had left, A-1 and A-2 also

left in another car. He knew the names of the accused Bhupinder, Rohit and

Rakesh Kumar because he had identified them in the police station in the

presence of Tehsildar. He deposed that accused Bhupinder, Rakesh, Subhash

and Rajesh were holding Toka, Kirch, Sword and Revolver respectively. The

witness identified the revolver, sword, kirch and toka and stated that

these were the weapons with which the accused were armed.

Evidence of PW-18 (Hari Kumar) inter alia stated is as follows:

He was the owner of a Halwai shop in Parade Ground. Jammu. On 3rd August.

1994, at about ! 1.00 a.m. accused Ravi Kumar came to the shop of Hari

Kumar in his car No. 5408-CHO l and left for Mori Bazar. At I or 1.30 p.m.,

accused Ashok and the deceased came to his shop and told them that they

were going to Hotel Asia for taking meals: They took some sweets from his

shop and left in car No. 566 JK02B which belonged to A-l. After 10 or 15

minutes. A-2 also came to the shop and demanded a scooter for him for going

to Hotel Asia. telling him that he needs the scooter since he had given his

car to some friend. He did not give a scooter to A-2. Half an hour

thereafter, he found car No. CHOl 5408 passing in front of his office shop

carrying 7-8 boys out of which he identified Kishore Kumar (who is now

dead). Car was being driven by a dark complexioned boy.

Some factors which weighed with the High Court in upholding conviction of

the three accused as was done by the Trial Court are the evidence of eye-

witnesses, PWs l and 2. Evidence of these witnesses have been analysed in

detail by both the Trial Court and the High Court. Before both the said

courts, it was urged that they cannot be termed to be truthful witnesses.

By elaborate reasoning the stand was negatived. Additionally. it was

noticed that both accused nos. l and 2 were seen in the company of the

deceased by employees of the deceased i.e. Darshan Singh (PW 15) and

Rajinder Kumar (PW 14). Additionally, Hari Kumar (PW 18) has also spoken

about having seen deceased in the company of accused nos. l and 2. For some

time accused No. l was not in the company of the deceased and accused No.

2. At that period of time he wanted PW 18 to take him to Hotel Asia. He has

also stated that accused No. 2 and the deceased had taken some sweets from

his shop and were travelling in a car No. JK02B 566. He has also stated

about the statement of accused l and 2 that there was some scuffle between

some boys and the deceased at the land which they had gone to see and in

that scuffle the killing took place. The reason for this was stated to be a

pressure on accused l and 2 to return the money. One of the important

circumstances noticed by the Trial Court as well as the High Court is that

the land which was to be seen by the deceased was only known to accused l

and 2. Another circumstance noted was the use of a car 5408 CHO l . There

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was some amount of controversy raised about the owner of the car, as it was

evident from the lengthy cross examination made so far as the original

owner, that is, L.B. Gupta, Advocate (PW 31).

The evidence of PWs l and 2 has rightly been accepted by the Trial court

and the High Court and we find no reason to discard their evidence. So far

as accused Rajesh Kumar is concerned as has been found by the Trial Court

and the High Court, live pistol belonging to accused No. l was recovered

from his house. He has sustained bullet injuries on account of firing done

by the deceased while trying to protect his life.

In view of the circumstances noticed and highlighted by the Trial court and

the High Court and in our considered opinion rightly the appeals filed by

accused Ravinder Kumar and Ashok Kumar are devoid of merit and deserve

dismissal, which we direct.

Corning to the appeal filed by four appellants who were acquitted by the

Trial Court but convicted by the High Court. it has been argued with

emphasis that even if it is accepted the two views are possible on the

evidence, the one in favour of the accused was to be accepted and their

acquittal should not have been rightly interfered with, [t is to be noticed

that the Trial Court placed reliance on the evidence of Hari Kumar (PW 18)

for the purpose of convicting accused Rajesh Kumar, but so far as the other

four accused are concerned, it was not held to be reliable. There was no

cogent reason indicated as to why the same was termed to be unreliable.

Additionally, recoveries were made pursuant to the disclosure made by them.

Though, arguments were advanced that due procedure was not followed, in

view of the evidence of the witnesses examined by the prosecution in that

regard, we find nothing illegal ruling out its acceptance. There are

certain additional features also. A pant was recovered from the house of

Subhash kumar which had holes indicating passage of bullet. However, a

chemist (PW 22) was examined to show when he had gone to purchase the

medicine to be applied to the injury. It was submitted that so far as

Santokh Singh (PW 7) is concerned, his evidence was held to be not

reliable. Therefore, the identification of accused No. 5, Subhash Kumar by

Santokh Singh was not of any consequence. Even if it is accepted, the

evidence relating to recovery established by the evidence of PW 18 cannot

be lost sight of. The evidence of Nainu (PW 9) was also described to be un-

reliable and it was said that he stood at par with Santokh Singh. Similar

was the criticism in respect of Surjit Singh. Their evidence has been

analysed in great detail by the High Court and has been held to be

reliable. It is of significance that practically there was no cross-

examination on the recovery aspect. We do not find any reason to differ

with the High Court in that regard. There can be no dispute with the

proposition as urged by learned counsel for the appellants that two views

are possible. the one in favour of the accused has to be preferred. But

where the relevant materials have not been considered to arrive at a view

by the Trial Court. certainly High Court has a duty to arrive at correct

conclusion a taking view different from the one adopted by the Trial Court.

In the case at hand. the course adopted by the High Court is proper.

Judged in the aforesaid background, conviction by the High Court that those

four who were acquitted by the Trial Court does not warrant any

interference.

The last seen theory comes into play where the time gap between the point

of time when the accused and deceased were seen last alive and when the

deceased is found dead is so small that possibility of any person other

than the accused being the author of crime becomes impossible. It would be

difficult in some cases to positively establish that the deceased was last

seen with the accused when there is a long gap and possibility of other

persons coming in between exists. In the absence of any other positive

evidence to conclude that accused and deceased were last seen together, it

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

case there is positive evidence that deceased. A-1 and A-2 were seen

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together by witnesses. i.e. PWs 14. 15 and 18; in addition to the evidence

of PWs l and 2.

It was submitted that there was unexplained delay in sending the FIR. This

point was urged before the Trial Court and also the High Court. It was

noticed by the High Court that Showkat Khan (PW 38) was an investigating

officer o n 3rd August, 1994 for a day only. He had taken steps from 5.30

evening onwards to 9.00 p.m. on the spot. Thereafter. Gian Chand Sharma (PW

42) was asked to investigate into the matter. It was also noticed that the

road between Bari Brahamana and Samba where the court was located was dosed

due to traffic on account of heavy rains. Though, the road was open from

Jammu to Bari Brahamana but it was closed from Bari Brahamana to Samba. The

day's delay for the aforesaid purpose (the FIR has reached the Magistrate

on 5.8.1994) cannot be said to be un-usual when proper explanation has been

offered for the delay. The plea of delayed dispatch has been rightly held

to be without any substance.

Another point which was urged was the alleged delayed examination of the

witnesses. Here again. it was explained as to why there was delay.

Important witnesses were examined immediately. Further statements were

recorded subsequently. Reasons necessitating such examination were

indicated. It was urged that the same was to rope in accused persons. This

aspect has also been considered by the Trial Court and the High Court. It

has been recorded that there was valid reason for the subsequent and/or

delayed examination. Such conclusion has been arrived at after analyzing

the explanation offered. It cannot be laid down as a rule of universal

application that if there is any delay in examination of a particular

witness the prosecution version becomes suspect. It would depend upon

several factors. If the explanation offered for the delayed examination is

plausible and acceptable and the court accepts the same as plausible, there

is no reason to interfere with the conclusion.

As was observed by this Court in Ranbir and Ors. v. State of Punjab, AIR

(1973) SC 1409 the investigating officer has to be specifically asked as to

the reasons for the delayed examination where the accused raised a plea

that there was unusual delay in the examination of the witnesses. In the

instant case however the situation does not to arise.

Therefore, in the aforesaid background, the appeals filed by the four

appellants who were acquitted by the Trial Court but convicted by the High

Court also deserve dismissal which we direct.

Corning to the appeal filed by the State in respect of whom both the Trial

Court and High Court recorded acquittal, it is seen that there was no

acceptable material. This aspect has been analysed in great detail by the

Trial Court and the High Court and we do not find any reason to interfere

with the conclusions. The appeal filed by the State is accordingly

dismissed. In the ultimate result, all the four appeals are dismissed.