A statement made by an accused under Section 313, Cr.P.C. can be used as an aid to lend credence to the evidence led by the
prosecution. Therefore, in light of the testimonies of PW-18,
PW-17, and PW-11, as well as the statement of Sharda Jain, we
find that the prosecution has proved that the deceased was
present with Sharda Jain (A-1) in the afternoon of 24.08.2002
and was not seen alive by anyone after such time.
Having observed so, it is crucial to note that the
reasonableness of the explanation offered by the accused as to
how and when he/she parted company with the deceased has a
bearing on the effect of the last seen in a case. Section 106 of
the Indian Evidence Act, 1872 provides that the burden of proof
for any fact that is especially within the knowledge of a person
lies upon such person. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and when he
parted company with the deceased. In other words, he must
furnish an explanation that appears to the Court to be probable
and satisfactory, and if he fails to offer such an explanation on
the basis of facts within his special knowledge, the burden cast
upon him under Section 106 is not discharged. Particularly in
cases resting on circumstantial evidence, if the accused fails to
offer a reasonable explanation in discharge of the burden
placed on him, such failure by itself can provide an additional
link in the chain of circumstances proved against him. This,
however, does not mean that Section 106 shifts the burden of
proof of a criminal trial on the accused. Such burden always
rests on the prosecution. Section 106 only lays down the rule
that when the accused does not throw any light upon facts
which are specially within his/her knowledge and which cannot
support any theory or hypothesis compatible with his
innocence, the Court can consider his failure to adduce an
explanation as an additional link which completes the chain of
incriminating circumstances.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1889 OF 2010
Rajender @ Rajesh @ Raju Vs State (NCT of Delhi)
MOHAN M. SHANTANAGOUDAR, J.
Dated:October 24, 2019.
1. The judgment dated 27.08.2009 passed by the High Court
of Delhi in Criminal Appeal Nos. 144 of 2007 and 51 of 2007
has been called in question in the instant appeals. By the
impugned judgment, the High Court affirmed the order of
conviction passed by the Trial Court against Sharda Jain (A-1),
Raj Kumar (A-2), Pushpender (A-3), Nirvikar (A-4), Rajender (A-
5) and Roshan Singh (A-6) for offences under Section 302 r/w
120-B and Section 364 r/w 120-B of the Indian Penal Code
(hereinafter ‘IPC’). Sharda Jain, Raj Kumar, and Roshan Singh
were also convicted under Section 201 r/w 120-B of the IPC.
2. The case of the prosecution in brief is that Atma Ram
Gupta (hereinafter ‘deceased’) who was a Councillor of the
Municipal Corporation of Delhi (hereinafter “MCD’) went
missing on 24.08.2002. On that day, he left
his residence around 10.30 a.m. informing his wife Sumitra
Gupta (PW-18) that he would first be going to the house of
another Councillor of the MCD, Sharda Jain (A-1) and then be
proceeding to attend a Congress Party rally at the Ferozshah
Kotla Grounds along with her. His driver, Prabhu Yadav (PW-17)
drove him to the residence of Sharda Jain and upon reaching
there, the deceased instructed the driver to take the car back
to their residence. When the deceased did not return home
until evening, enquiries were made by his wife and family
members. A missing report was consequently lodged at 1 a.m.
on 25.08.2002. Ultimately, the body of the deceased was found
on 31.08.2002 in a sub-canal of the Bulandshar Rajwaha/Sanota
Canal. A charge sheet came to be filed against nine accused,
namely, Sharda Jain (A-1), Raj Kumar (A-2), Pushpender (A-3),
Nirvikar (A-4), Rajender (A-5), Roshan Singh (A-6), Shri Pal
Singh Raghav (A-7), Satender Kumar (A-8) and Rakesh Kumar
(A-9). All the accused were tried before the Fast Track Court,
Rohini in S.C. No. 139 of 2006.
3. The Trial Court convicted Sharda Jain (A-1), Raj Kumar
(A-2), Pushpender (A-3), Nirvikar (A-4), Rajender (A-5) and
Roshan Singh (A-6) for the charges framed against them. As
regards the other three accused Shri Pal Singh Raghav (A-7),
Satender Kumar (A-8) and Rakesh Kumar (A-9), the Trial Court
found that they were not party to the conspiracy hatched by
the other convicted persons. However, they were convicted
under Section 201 IPC for causing disappearance of evidence.
4. All the six accused (A-1 to A-6) filed criminal appeals
before the High Court, namely, Criminal Appeal Nos. 19 of
2007, 51 of 2007, 121 of 2007, 139 of 2007, 144 of 2007
and 65 of 2007. After re-appreciating the entire material on
3
record, the High Court dismissed Criminal Appeal Nos. 51 of
2007, 139 of 2007 and 144 of 2007 and allowed Criminal
Appeal Nos. 19 of 2007, 121 of 2007 and 65 of 2007. In effect,
the conviction of Sharda Jain (A-1), Raj Kumar (A-2), Rajender
(A-5) and Roshan Singh (A-6) was affirmed, while the other
accused Pushpender (A-3), Nirvikar (A-4), Shri Pal Singh Raghav
(A-7), Satender Kumar (A-8) and Rakesh Kumar (A-9)
were acquitted.
5. The convicted persons have approached this Court in the
instant appeals. Among them, Roshan Singh (A-6) who had filed
Appeal No. 1888 of 2010 expired on 02.05.2017 and his appeal
has therefore been dismissed as abated. Accordingly, only the
appeals filed by Sharda Jain (A-1), Raj Kumar (A-2) and
Rajender (A-5) were heard and have been decided by this
common judgment.
6. It is the case of the prosecution that Sharda Jain (A-1) had
developed close relations with the deceased. When he began
ignoring her for another woman, she hatched a conspiracy with
her brother, Raj Kumar (A-2) and two other persons, Rajender
(A-5) and Roshan Singh (A-6) to murder him. Pursuant to this,
the deceased was taken to village Chajjupur in her car, where
4
two hired assassins, namely, Pushpender (A-3) and Nirvikar (A-
4), shot him dead. It is alleged that the dead body was disposed
of with the help of three police officers, namely, Shri Pal Singh
Raghav (A-7), Satender Kumar (A-8), and Rakesh Kumar (A-9)
who threw it in a canal.
7. There are no eye witnesses to the incident in question.
The case of the prosecution fully rests on circumstantial
evidence, which has been used to weave a chain that points to
the guilt of each of the convicted persons.
7.1 With respect to Sharda Jain (A-1), the Trial Court and the
High Court have considered the following circumstances:
(a) that she pointed out the place of the murder of the
deceased;
(b) that the deceased was last seen alive in her company
and that the time gap between the last seen and the time
of death of the deceased is so small that it makes the
possibility that the deceased could have come in the
contact of any other person too remote;
(c) no plausible explanation has been given by her as to
how and when the deceased parted company with her on
24.08.2002;
5
(d) a false claim was made by her that she did not visit
Ghaziabad on 24.08.2002;
(e) she misled the family members of the deceased
when they made enquiries from her about the
whereabouts of the deceased;
(f) two meetings took place between Sharda Jain, Raj Kumar,
Rajender and Roshan Singh at the residence of Sharda
Jain, just a few days prior to 24.08.2002;
(g) her conduct of visiting the house of her driver, Om
Prakash in the late hours of the night on 24.08.2002 is
suspicious;
(h) that she had motive to kill the deceased.
7.2 As regards Raj Kumar (A-2), the brother of Sharda Jain, the
lower Courts have considered the following circumstances:
(a) that he visited the house of Sharda Jain (A-1) on two
occasions along with two other persons just a few days
prior to 24.08.2002;
(b) that he pointed out the place of the murder of the
deceased;
(c) that his place of residence was in the vicinity of the place
of murder of the deceased;
6
(d) that he did not controvert the fact of acquaintance with
other co-accused, Rajender (A-5) and Roshan Singh (A-6);
and
(e) that the wrist watch of the deceased was recovered at his
instance.
7.3 As regards Rajender (A-5), the Trial Court and the High
Court have considered the following circumstances:
(a) that the deceased was last seen alive in his company and
that the time gap between the last seen and time of the
death of the deceased is so small that it makes the
possibility that the deceased could have come in the
contact of any other person too remote;
(b) no plausible explanation has been given by him as to
how and when he parted company with the deceased on
24.08.2002;
(c) that he has not controverted the fact that he used to
drive the car of Roshan Singh (A-6) on a temporary basis
and therefore, he was associated with Roshan Singh;
(d) that he made a false claim about never having visited the
house of Sharda Jain (A-1);
7
(e) that he refused to participate in the test identification
parade (TIP) and the reasons for such refusal are not
plausible.
8. Upon considering the aforementioned circumstances and
appreciating the material on record, the High Court found that
the chain of circumstances as against Sharda Jain (A-1), Raj
Kumar (A-2), and Rajender (A-5) was complete and it was
proven that these persons had entered into a conspiracy to
murder the deceased. Accordingly, the conviction of these
persons under Sections 302 and 364 read with Section 120-B,
IPC was affirmed.
9. It is well-settled that in cases where the prosecution relies
on circumstantial evidence to establish its case, such
circumstances should be duly proved and the chain of
circumstances so proved should be complete. This means that
the chain formed must unerringly point towards the guilt of the
accused and not leave any missing links for the accused to
escape from the clutches of law. Further, with respect to
conspiracy, it is trite law that the existence of three elements
must be shown– a criminal object, a plan or a scheme
embodying means to accomplish that object, and an agreement
8
or understanding between two or more people to cooperate for
the accomplishment of such object.
10. In light of these observations, we shall proceed to examine
the cases of each of the three appellants, Sharda Jain (A-1), Raj
Kumar (A-2) and Rajender (A-5) in order.
Sharda Jain (A-1)
11. As mentioned supra, the lower Courts have considered
various circumstances against Sharda Jain (A-1). While some
circumstances used by the Trial Court have been found to be
proven by the High Court as well, some others have been ruled
out. For the purpose of our consideration, given that the
learned Counsels for both sides have premised their arguments
on the circumstances finally used by the High Court to establish
the guilt of Sharda Jain, we will be adverting to each of those in
turn.
11.1 To prove the first circumstance of Sharda Jain pointing
out the place of the murder of the deceased (hereinafter ‘Spot
A’), the prosecution has examined police officials, namely,
Inspector V.S. Meena (PW-62), HC Sunita (PW-31), SI Ram
Kumar (PW-32), SI Anil Kumar Chauhan (PW-44), and SI Shiv Raj
Singh (PW-55). It also examined one Mahender Pal Gupta (PW-
9
8), but the High Court has entirely disbelieved his testimony
due to several discrepancies. We agree with the reasons
assigned by the High Court for disbelieving the testimony of
PW-8.
Apart from this, with respect to the evidence of the police
officials who accompanied Sharda Jain (A-1) to Spot A, i.e. PW-
62, PW-31, PW-32, PW-44 and PW-55, we find that their
evidence cannot be discarded. These prosecution witnesses
have withstood the test of cross-examination and clearly stated
that Spot A was not in the knowledge of the police up until
28.08.2002, which is when Sharda Jain (A-1) took the police
officials to this spot. We do not find any valid ground to
disbelieve their testimony, particularly when they are
independent, unbiased police officials. There was no reason for
them to falsely depose against Sharda Jain, who was also a
public servant, being a Councillor of the MCD. Therefore, in our
considered opinion, the circumstance of Sharda Jain pointing
out the place of the murder of the deceased is proved.
11.2 To establish the second circumstance that the deceased
was last seen alive in the company of Sharda Jain, the
prosecution has examined Sumitra Gupta (PW-18), Prabhu
10
Yadav (PW-17), Om Prakash Chauhan (PW-11), and Manish
Kumar (PW-14).
In her testimony, PW-18 (wife of the deceased) has stated
that on the morning of 24.08.2002, when the deceased was
leaving the house, he told her that he would be going to the
residence of Sharda Jain. Further, PW-17 (the driver of the
deceased) has deposed that he drove the deceased to the
residence of Sharda Jain at about 10.30 a.m. on 24.08.2002.
Likewise, Om Prakash Chauhan (PW-11), who is the driver of
Sharda Jain, has stated that the deceased came to the house of
Sharda Jain in a car driven by PW-17 and thereafter sent the car
back to his residence. He has also deposed that he was driving
the car of Sharda Jain in which the deceased and Sharda Jain
were sitting and they were heading towards the Ferozshah
Kotla Grounds, Delhi to attend a Congress party rally. Notably,
none of these statements have been controverted by the
defence.
In addition to this, Manish Kumar (PW-14) has stated that,
as a matter of chance, he saw the deceased at this rally,
around 12 noon. Thereafter, he saw him leave in a car where
Sharda Jain was also seated. It is well-established that the
testimony of a chance witness, though not necessarily false, is
proverbially unsafe to rely upon. It is for this reason that the
High Court chose not to rely on the evidence of PW-14 with
respect to the circumstance of last seen of the deceased.
However, it was found that the evidence of the other witnesses,
viz. Sumitra Gupta (PW-18), Prabhu Yadav (PW-17), and Om
Prakash Chauhan (PW-11) conclusively proved that the
deceased went to the house of Sharda Jain, sent his car back to
his house, and then went with Sharda Jain and attended the
rally in the afternoon of 24.08.2002.
During her examination under Section 313 of the Code of
Criminal Procedure (hereinafter ‘Cr.P.C.’), Sharda Jain (A-1) has
admitted that the deceased was present with her till the
afternoon of 24.08.2002. The law on the point is very clear. A
statement made by an accused under Section 313, Cr.P.C. can
be used as an aid to lend credence to the evidence led by the
prosecution. Therefore, in light of the testimonies of PW-18,
PW-17, and PW-11, as well as the statement of Sharda Jain, we
find that the prosecution has proved that the deceased was
present with Sharda Jain (A-1) in the afternoon of 24.08.2002
and was not seen alive by anyone after such time.
Having observed so, it is crucial to note that the
reasonableness of the explanation offered by the accused as to
how and when he/she parted company with the deceased has a
bearing on the effect of the last seen in a case. Section 106 of
the Indian Evidence Act, 1872 provides that the burden of proof
for any fact that is especially within the knowledge of a person
lies upon such person. Thus, if a person is last seen with the
deceased, he must offer an explanation as to how and when he
parted company with the deceased. In other words, he must
furnish an explanation that appears to the Court to be probable
and satisfactory, and if he fails to offer such an explanation on
the basis of facts within his special knowledge, the burden cast
upon him under Section 106 is not discharged. Particularly in
cases resting on circumstantial evidence, if the accused fails to
offer a reasonable explanation in discharge of the burden
placed on him, such failure by itself can provide an additional
link in the chain of circumstances proved against him. This,
however, does not mean that Section 106 shifts the burden of
proof of a criminal trial on the accused. Such burden always
rests on the prosecution. Section 106 only lays down the rule
that when the accused does not throw any light upon facts
which are specially within his/her knowledge and which cannot
support any theory or hypothesis compatible with his
innocence, the Court can consider his failure to adduce an
explanation as an additional link which completes the chain of
incriminating circumstances.
Notably, a circumstance of last seen does not, by itself,
necessarily lead to an inference that the accused committed
the crime. There must be something more that establishes a
connection between the accused and the crime. For instance,
there may be cases where close proximity between the event
of last seen and the factum of death may persuade a rational
mind to reach the irresistible conclusion that the last seen of
the deceased is material and merits an explanation from the
accused.
In the instance case, there is proximity between the time
of last seen of the deceased with Sharda Jain and the time of
his death. As mentioned supra, it is proved that the deceased
was last seen with Sharda Jain on 24.08.2002. It has also been
shown that the deceased expired on 24.08.2002, as indicated
in the testimony of Dr. S.K. Aggarwal (PW-21) who conducted
the post-mortem examination of the deceased at 2.30 p.m. on
31.08.2002. He has deposed that the probable date of death of
the deceased was about a week prior to the post-mortem
examination, i.e. on 24.08.2002. Thus, the proximity between
the time of last seen and the time of death of the deceased is
established. This, in turn, connects the accused to the crime in
question.
Further, the records show that the place of murder of the
deceased was a secluded area. In such a scenario, given that
the deceased had last been seen with Sharda Jain, the
explanation given by her as to how she parted company with
the deceased becomes crucial. In her statement under Section
313, Cr.P.C., she has stated that she parted company with the
deceased on the afternoon of 24.08.2002, when the deceased
got down from her car at the Inter State Bus Terminus (I.S.B.T.).
This explanation has been disbelieved by the lower Courts in
light of the conduct of Sharda Jain prior and subsequent to the
incident in question – she did not depose about her movements
on 24.08.2002 after the deceased allegedly got down from her
car at I.S.B.T., and she also denied being in the vicinity of Spot
A on 24.08.2002. Both these claims have been found to be
false by the Trial Court and the High Court and thereby
undermine the explanation offered by her on how she parted
with the deceased. We find that the explanation given by
Sharda Jain is also falsified by the evidence of her driver, Om
Prakash Chauhan (PW-11). PW-11 has emphatically deposed
that he got down from the car at I.S.B.T. and the deceased
proceeded on the onward journey to Ghaziabad along with
Sharda Jain and Rajender (A-5), who were also seated in the
car. There is no reason for PW-11 to depose against Sharda
Jain, especially since he was her driver. Thus, having regard to
the material on record, we find that the Courts below are
justified in concluding that the deceased was last seen in the
company of Sharda Jain and that the time gap between the last
seen and the time of the death of the deceased is so small so
as to make it impossible for the deceased to come in the
contact of any other person. Further, since no plausible
explanation has been given by Sharda Jain as to how and when
she parted company with the deceased on
24.08.2002, this forms a link in the chain of incriminating
circumstances against her.
11.3 We now turn to the third circumstance that a false claim
was made by Sharda Jain that she did not visit Ghaziabad
16
on 24.08.2002. In this regard, the testimony of Om Prakash
Chauhan (PW-11) is again relevant. He has deposed that
on 24.08.2002, when the deceased and Sharda Jain returned
from the rally, Sharda Jain had instructed him to go towards
Ghaziabad. As mentioned supra, PW-11 is a reliable witness
who has withstood the test of cross-examination. Thus, his
testimony establishes that the car of Sharda Jain was to be
driven to Ghaziabad on 24.08.2002. In addition to this, it is
relevant that mud having similar characteristics as soil found at
Spot A was found stuck on the car of Sharda Jain. In her
statement under Section 313, Cr.P.C., she has not given any
explanation as to why such mud was there on her car or as to
her whereabouts after the rally on 24.08.2002. Given that she
was uniquely placed to explain these facts, we agree with the
High Court that an inference can be drawn that Sharda Jain was
present at or around Ghaziabad on 24.08.2002 which
is close to the place where the incident in question has
occurred.
This is also supported by the mobile records of Sharda
Jain, which show that she visited Ghaziabad on 24.08.2002.
Though the High Court has held that these records have not
been proved, as no certificate was issued in terms of Section
65-B(4) of the Indian Evidence Act, 1872, we find that these
records can be relied upon. This is because an objection
relating to the non-production of a certificate under
Section 65-B(4) relates to the mode and method of proof and
cannot be raised at the appellate stage as has been held by
this Court in Sonu v. State of Haryana, (2017) 8
SCC 570. In that case, an objection regarding the mode/method
of proof of call detail records (CDRs) of mobile phones
recovered from the accused was raised for the first time before
the Supreme Court. Drawing a distinction between objections
relating to admissibility or relevance of facts and objections as
to the mode or method of proof of facts, the Court observed as
follows:
“32. It is nobody's case that CDRs which are a form
of electronic record are not inherently admissible in
evidence. The objection is that they were marked
before the trial court without a certificate as required
by Section 65-B(4). It is clear from the judgments
referred to supra that an objection relating to the
mode or method of proof has to be raised at the
time of marking of the document as an exhibit and
not later. The crucial test, as affirmed by this Court,
is whether the defect could have been cured at the
stage of marking the document. Applying this test to
the present case, if an objection was taken to the
CDRs being marked without a certificate, the Court
could have given the prosecution an opportunity to
rectify the deficiency. It is also clear from the above
judgments that objections regarding admissibility of
documents which are per se inadmissible can be
taken even at the appellate stage. Admissibility of a
document which is inherently inadmissible is an
issue which can be taken up at the appellate stage
because it is a fundamental issue. The mode or
method of proof is procedural and objections, if not
taken at the trial, cannot be permitted at the
appellate stage. If the objections to the mode of
proof are permitted to be taken at the appellate
stage by a party, the other side does not have an
opportunity of rectifying the deficiencies. The
learned Senior Counsel for the State referred to
statements under Section 161 CrPC, 1973 as an
example of documents falling under the said
category of inherently inadmissible evidence. CDRs
do not fall in the said category of documents. We are
satisfied that an objection that CDRs are unreliable
due to violation of the procedure prescribed in
Section 65-B(4) cannot be permitted to be raised at
this stage as the objection relates to the mode or
method of proof.”
(emphasis supplied)
Applying this to the instant case, we find that the
objection as to the reliability of the call records of Sharda Jain
on account of non-compliance with the procedure under
Section 65-B(4) was raised for the first time before the High
Court. Since no such objection was raised at the time of
marking of these records before the Trial Court, we find that
these records can be considered.
A perusal of these call records shows that Sharda Jain had
visited Ghaziabad on 24.08.2002. Thus, in light of this, and the
other circumstances discussed above, we find that it is proved
that Sharda Jain made a false claim in her examination under
Section 313, Cr.P.C. that she did not visit Ghaziabad
on 24.08.2002.
11.4 The fourth circumstance relates to Sharda Jain
misleading the family members of the deceased about his
whereabouts. In this regard, Sumitra Gupta (PW-18) and
Rajender Pal Gupta (PW-9; younger brother of the deceased),
have deposed that Sharda Jain gave misleading and false
answers to them when they made enquiries from her about the
whereabouts of the deceased. In our considered opinion, the
High Court has correctly relied upon the evidence of these
witnesses to conclude that Sharda Jain had given a false
explanation to the family members of the deceased about his
whereabouts.
11.5 The fifth circumstance against Sharda Jain concerns her
conduct of visiting the house of her driver (PW-11) in the late
hours of night of 24.08.2002. Om Prakash Chauhan (PW-11) has
deposed that Sharda Jain had sent a fat man to his residence in
the late hours of 24.08.2002 and the said person had told him
that Sharda Jain is calling him. This fact has not been
controverted by the defence. Likewise, the evidence of his
mother, Shanti (PW-10) that a boy came to her house and told
her that Sharda Jain was calling Om Prakash has also not been
controverted. Admittedly, there was some vagueness in the
evidence of PW-10, but in our considered opinion, given that
she is a rustic woman, the High Court was justified in reading
her evidence harmoniously with that of PW-11. Since the scene
of murder in the present case is rural, the Court should judge
the matter after accounting for the rustic behavioral pattern of
the witnesses and not adopt extremely sophisticated
approaches familiar in courts based on unreal assumptions
about human conduct. Keeping this in mind, it becomes clear
that when Shanti (PW-10) was told by the boy that Sharda Jain
is calling her son, she perceived that Sharda Jain was present
outside her house. It is on the basis of this perception that she
deposed that Sharda Jain had come to her house. However, a
combined reading of the testimonies of PW-11 and PW-10
establishes that Sharda Jain tried to contact her driver (PW-11)
on 24.08.2002. This conduct of attempting to establish contact
21
with her driver in the late hours of the day of the incident,
raises a strong suspicion against Sharda Jain and indicates an
attempt to request or pressurize PW-11 to not disclose the
incident to any other person.
11.6 Lastly, as regards the motive of Sharda Jain based on her
close relations with the deceased and her discontent with his
growing relationship with another woman, (Memwati Berwala),
we agree with the High Court. The material on record is
insufficient to prove that the deceased had intimate relations
with Sharda Jain or Memwati Berwala. At best, the evidence on
record indicates that the deceased and Sharda Jain were good
friends. Thus, the High Court has rightly concluded that the
motive, as put forth by the prosecution, is not proved.
12. Be that as it may, the foregoing discussion on the other
circumstances against Sharda Jain clearly establishes that she
was last seen in the company of the deceased in the afternoon
of 24.08.2002, which is the day on which he went missing and
was killed. Further, it is established that she was going with the
deceased to Ghaziabad on that day and was the first to point
out the place of murder to the police. In addition to this, she
has made false claims as to the whereabouts of the deceased
22
as well as her actions post the afternoon of 24.08.2002. In light
of all these circumstances, we find that the prosecution has
succeeded in making a case against her for the offence under
Section 302, IPC. Further, given that the body of the deceased
was recovered from a sub-canal, and not from the place of
commission of murder, it is clear that the evidence of the
offence was caused to be disappeared and the involvement of
Sharda Jain (A-1) was screened through false claims. Thus,
charge under Section 201 of the IPC is also proved.
Raj Kumar (A-2)
13. With respect to Raj Kumar (A-2), two circumstances merit
our consideration – first, that he visited the house of Sharda
Jain along with two other persons on two occasions just a few
days prior to 24.08.2002; and second, that the wrist
watch of the deceased was recovered by the police at his
instance.
13.1 With respect to the first circumstance, we agree with the
High Court that there is nothing incriminating in this conduct of
Raj Kumar (A-2). Being the brother of Sharda Jain, it is but
natural for him to visit her house frequently. Merely because he
visited her house on two occasions, just a few days before the
23
date of incident, an inference cannot be drawn that these visits
were for conspiring to commit the murder of the deceased. In
any case, it is not clear from the material on record as to who
were the other two persons who accompanied him to the house
of Sharda Jain and how many days prior to date of the incident
were such visits made. Thus, in our considered opinion, this
circumstance has not been proven against Raj Kumar.
13.2 The second circumstance is that the wrist watch of the
deceased was recovered at the instance of Raj Kumar. To prove
this circumstance, the prosecution examined police officials,
namely, Inspector V.S. Meena (PW-62), Anil Kumar Chauhan
(PW-44), and SI Shiv Raj Singh (PW-55). These officials have
deposed that on 28.08.2002, Raj Kumar got the wrist
watch of the deceased recovered from behind a speaker kept
at a ventilator in the balcony of his house. It is further claimed
by the prosecution that the watch so recovered was deposited
in the malkhana on the same date, i.e. 28.08.2002.
Before we discuss these claims, it is important to bear in
mind that the instant case is not that of a robbery. Being an
affluent businessman, Raj Kumar cannot be expected to have
committed the theft of a wrist watch. Moreover, the wrist watch
24
seized from his house was identified by one Rajender Pal Gupta
(PW-9), who resides about 10 km away from the residence of
the deceased. In his cross-examination, PW-9 has admitted that
he went to the spot of the murder on 31.08.2002 and that the
wrist watch was still on the hand of the deceased at that time.
However, as mentioned supra, Inspector V.S. Meena (PW-62)
has deposed that the wrist watch of the deceased was
deposited by him in the malkhana on 28.08.2002. This is
supported by the testimony of Dinesh Kumar (PW-43) who has
also deposed that the said wrist watch was deposited in the
malkhana on 28.08.2002 and that he had made an entry in the
malkhana register accordingly. Clearly, the testimony of the
police officials directly belies the evidence of PW-9. However,
given that these officials are independent, unbiased witnesses
and the fact that none of the close family members of the
deceased were called on to identify his wrist watch, we are
inclined to believe the testimony of these officials. Thus, it
appears that the prosecution has tried to improve its case by
planting the said wrist watch so as to falsely implicate Raj
Kumar in this case. In light of this, we find that the prosecution
has failed to prove the recovery of the wrist watch at the
25
instance of Raj Kumar (A-2). Given that the High Court had
sustained the conviction of A-2 primarily on the basis of this
recovery, we are of the opinion that he should given the benefit
of doubt.
13.3 As regards other circumstances considered by the lower
Courts against Raj Kumar (A-2), we find that there is no
adequate material brought on record. As mentioned supra, the
place of the incident (Spot A) was first shown by Sharda Jain
and not by A-2. Clearly, there cannot be a discovery of an
already discovered fact. Moreover, merely because A-2 knew
the other accused Rajender (A-5) and Roshan Singh (A-6), it
cannot be said that he was complicit in the commission of a
crime with them. Something more such as a common criminal
object, or a plan or scheme to achieve it must be shown to
prove the complicity of A-2. In our considered opinion, the
entire evidence on record is insufficient to bring home the guilt
of Raj Kumar (A-2). Accordingly, he deserves to be acquitted for
the charges framed against him.
Rajender (A-5)
14. With respect to Rajender (A-5), the major circumstances
considered by the High Court are that the deceased was last
26
seen alive in his company on 24.08.2002; that the time gap
between the last seen and the time of the death of the
deceased is so small that it makes it impossible that the
deceased could have come in the contact of any other person;
and that no plausible explanation has been given by Rajender
(A-5) as to how and when he parted company with the
deceased on 24.08.2002.
14.1 As regards the circumstance relating to the last seen of
Rajender (A-5), it is relevant to note that the driver of the
deceased (PW-17) has deposed that he drove the deceased to
the residence of Sharda Jain in the morning of 24.08.2002. This
is corroborated by the testimony of Om Prakash Chauhan (PW-
11) who has deposed that the deceased arrived at the
residence of Sharda Jain in the morning, sent back his car with
PW-17, and then proceeded to the rally with Sharda Jain in a car
that he was driving. As mentioned supra, PW-11 has also
deposed that while coming back from the rally, Rajender (A-5),
the deceased and Sharda Jain were in the same car which was
being driven by him towards Ghaziabad. It was during this
journey that Sharda Jain instructed him to get down from the
car near I.S.B.T. and go back to his house. Accordingly, PW-11
27
got down from the car at I.S.B.T. and left the company of the
accused and the deceased. From that point onwards, it is
stated that Rajender (A-5) was driving the vehicle.
The testimony of Om Prakash Chauhan (PW-11) was
vehemently challenged by the defence. During his crossexamination,
many suggestions were made to him, but they
were all turned down. In light of his reliable testimony, we do
not find any ground to disagree with the reasoning adopted by
the lower Courts to conclude that the last seen circumstance in
respect of Rajender (A-5) stands proved. Further, it is important
to note that no explanation is forthcoming from Rajender (A-5)
as to how and when he parted company with the deceased
which thus becomes an additional link in the chain of
circumstances.
14.2 In addition to this Rajender (A-5) has admitted that he
was the driver of the car of Roshan Singh (A-6) on a temporary
basis. This establishes his association with another convicted
person in this case. Notably, this connection has not been
controverted. Moreover, it has been found that the claim made
by Rajinder Singh (A-5) that he has never visited the house of
Sharda Jain is false. This is clear in light of the reliable evidence
28
of Om Prakash Chauhan (PW-11) who has stated that Rajender
(A-5), Sharda Jain, and the deceased had left from the house of
Sharda Jain to proceed for the rally at the Ferozshah Kotla
Grounds.
14.3 Another circumstance against Raj Kumar relates to the
place of the murder of the deceased. It has been proved that
Spot A is the place of the incident. On a close perusal, the
evidence on record reveals that the car in which the deceased,
Sharda Jain, and Rajender (A-5) were seated went up to this
spot on 24.08.2002. This is evident from the fact that the mud
found stuck to the tyres of the car of Sharda Jain had similar
physical characteristics as the soil found at spot A. Moreover,
the car of Sharda Jain was found by the police at her residence
on 27.08.2002. No explanation has been given by Rajender as
to his movements on 24.08.2002 or any time thereafter. If it
were the case that the car of Sharda Jain, (which has been
proved to be driven by Rajender), had not gone to Spot A, the
mud of the scene of the offence would not have been found
stuck to the tyre of the car. However, this is not the case. Thus,
we find that this circumstance indicates the involvement of
Rajender (A-5) in the commission of the crime.
29
15. In light of the foregoing discussion, it is proved that
Rajender was driving the car in which the deceased was last
seen with him and Sharda Jain (A-1). Further, it is also proven
that this car went up till Spot A, which is the place of the
incident as is evident from the existence of the mud from the
spot on the tyres of the car. In the absence of any plausible
explanation put forth by Rajender as to his actions on
24.08.2002 and thereafter, and given the totality of material on
record, we find that the circumstances considered against him
establish his complicity in committing the murder of the
deceased. The lower Courts, were therefore, justified in
convicting him under Section 302 of the IPC. In addition to this,
given the false claims made by him and the fact that the body
of the deceased was recovered from a sub-canal where it had
been thrown, charge under Section 201 of the IPC is also
established against Rajender (A-5).
16. However, as regards the charge of conspiracy, we do not
find that the conduct of Sharda Jain (A-1) and Rajender (A-5)
constitutes a criminal conspiracy to murder the deceased.
Strangely, the High Court has observed that the prosecution
has proven that Sharda Jain was complicit in such a conspiracy.
30
However, on a closer reading of the impugned judgment, we
find that the High Court has not assigned any appropriate
reasoning for arriving at this conclusion. Merely observing that
it has been proven that A-1 and A-5 were complicit in a
conspiracy to murder the deceased is insufficient to conclude
the existence of such a conspiracy. As mentioned supra, three
essential elements must be shown – a criminal object, a plan or
scheme embodying means to accomplish that object, and an
agreement between two or more persons to cooperate for the
accomplishment of such object. Admittedly, the incorporation
of Section 10 to the Indian Evidence Act, 1872, suggests that
proof of a criminal conspiracy by direct evidence is not easy to
get. While we acknowledge this constraint, we do not find any
discussion by the High Court on what circumstances indicate
the existence of the essential elements of a criminal conspiracy
in the instant case. On going through the entire material on
record, we find that a criminal conspiracy has not been proved
in the instant case. Thus, the charge against Sharda Jain (A-1)
and Rajender (A-5) under Section 120-B, IPC for conspiring to
murder the deceased cannot be sustained. Be that as it may,
31
we find that their acts have been done in pursuance of a
common intention and attract Section 34 of the IPC.
17. Having considered the entire evidence on record in proper
perspective, we conclude that the prosecution has proved the
aforementioned circumstances against A-1 and A-5, which form
a complete chain pointing towards their guilt. In the absence of
any missing links, they cannot be given a chance to escape
from the clutches of law.
18. In view of the foregoing discussion, the following order is
made:
(a) Criminal Appeal No. 2377 of 2014 filed by Sharda Jain
(A-1) is dismissed. The judgment and order of
conviction passed against her stands affirmed for the
offences under Sections 302 and 201 read with Section
34, IPC. Vide order dated 18.03.2015 passed by this
Court, Sharda Jain (A-1) was granted bail. Accordingly,
her bail bonds are cancelled. She shall be taken into
custody immediately to serve out the remainder of her
sentence.
(b) Criminal Appeal No. 1889 of 2010 filed by Rajender
(A-5) is dismissed. The judgment and order of
32
conviction passed against him stands affirmed for the
offences under Sections 302 and 201 read with Section
34, IPC. Vide order dated 18.03.2015 passed by this
Court, Rajender (A-5) was granted bail. Accordingly, his
bail bonds are cancelled. He shall be taken into custody
immediately to serve out the remainder of his sentence.
(c) Criminal Appeal No. 1890 of 2010 is allowed and the
appellant Raj Kumar (A-2) is acquitted of the charges
framed against him. Vide order dated 18.03.2015
passed by this Court, Raj Kumar (A-2) was granted bail.
His bail bonds stand discharged accordingly.
..........................................J.
(Mohan M.
Shantanagoudar)
..........................................J.
(Ajay
Rastogi)
New Delhi;
October 24, 2019
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