R.S. Chauhan, J.
1. A damaged car, an injured young man inside the car, a dead body of a young lady lying beyond a wall, not far from the damaged car, allegations of kidnapping, murder and destruction of evidence, defense of accident, the conviction of both the appellants for various offences are the different strands weaving the tapestry of this case. The appellants, Ankush Wadhwa ('A-1', for short) and Dwarka Prasad ('A-2', for short) have challenged the judgment dated 29.09.2001, passed by the Additional Sessions Judge, No. 4, Kota whereby the appellants have been convicted and sentenced as under:
Ankush Wadhwa (A-1)Offences SentenceUnder Section Life Imprisonment alongwith a fine of Rs. 2,000/-,302 IPC in default thereof rigorous imprisonmentfor six months.Under Section Five years rigorous imprisonment alongwith a fine363 IPC of Rs. 500/-, in default thereof rigorous imprisonment for three months.Under Section One year rigorous imprisonment alongwith a fine201 IPC of Rs. 500/-, in default thereof rigorous imprisonmentfor three months.Under Section Three months rigorous imprisonment alongwith a fine120-B r/w 201 IPC of Rs. 500/-, in default thereof rigorous imprisonmentfor three months.Dwarka Prasad (A-2)Under Section Simple imprisonment for three years119 IPC Under Section One year simple imprisonment alongwith a fine of201 IPC Rs. 500/-, in default thereof simple imprisonmentfor three months.Under Section217 IPC One year simple imprisonment.Under Section120-B r/w 201 IPC Three months rigorous imprisonment alongwith a fineof Rs. 500/-, in default thereof three monthsrigorous imprisonment
2. The facts of the case are that on 20.05.1998, at 9:00 PM, Mr. Zile Singh Rana (P W 18) lodged a written report (Ex P 122) at Police four feet nine inches tall, wheatish complexioned, round faced, having short hair, wearing blue pant and blue checkered top, and wearing sandals of maroon color, left their house around 2:00 PM and went to NIIT, an institute for computer training, for doing a computer course. She has not returned back home. Therefore, he requested the police to search for her. He further stated that she was carrying a file and was wearing a wrist watch when she left the house.' (English translation of the written report)
3. According to the prosecution, having lodged the missing report, Mr. Zile Singh (P.W.I8) started searching for his daughter. According to Mr. Zile Singh having lodged the missing report, he spoke to the Superintendent of Police, Mr. Rajeev Dashot. He also spoke to his neighbor, Mr. Satyapal Singh (P.W.56) who was also the SHO of Police Station Vigyan Nagar, Kota. Thereafter, Mr. Zile Singh and Mr. Satyapal Singh went out looking for Neelu Rana. They first went to the house of one Mr. Vishal and then to the house of a 'computerwala'. However, neither of these two persons could tell them anything about the whereabouts of Neelu Rana. He further claimed that when he called his house, his other daughter, Neha Rana (P.W. 47) told him that Neelu Rana had gone with A-1. When he asked her about the residential address of A-1, she told him that he lives somewhere near the Sophia School. Thereafter, he and Satyapal Singh searched for the house of A-1 near the Sophia School. While they were looking for the said house, around 10:00 PM, Mr. Satyapal Singh received a wireless message, in his police jeep, that one Mr. Kan Singh (P.W. 23), ASI, Police Station, Khaitoon has brought a dead body of a girl to the mortuary at M.B.S. Government Hospital. Therefore, Mr. Zile Singh and Mr. Satyapal Singh rushed to the Government Hospital. At the Hospital, Mr. Zile Singh identified the dead body as the body of his daughter, Neelu Rana. They also met Mr. Kan Singh who told them that he had recovered the dead body of Neelu Rana from the jungle situated at Dhad Devi - Motipura Road. According to Mr. Kan Singh, the dead body was laying forty-five steps away from a wall.
4. Thereafter, around 2:30 AM, Mr. Zile Singh submitted a written report (Ex.P. 123) at Police Station Nayapura wherein he, claimed that 'His daughter, Neelu Rana, was student of eleventh class and was studying in the Sophia School. On 20.05.1998, around 2:00 PM, she left the house and went to NUT institute situated at Aerodrome Circle for doing a computer course. Since she did not come back home by the evening, he submitted a missing report at the Police Station Nayapura'. He further claimed that 'he tried to locate his daughter at his own level. He came to know that Mr. Ahkush Wadhwa who is the son of Mr. Sunil Wadhwa, the owner of 'Nirala Dant Manjan', and his friends have taken away Neelu Rana'. He further alleged that 'while he was searching for his daughter, Mr. Kan Singh, ASI, brought the dead body of Neelu Rana to the MBS Government Hospital. He saw the dead body and spoke to Mr. Kan Singh. Mr. Kan Singh told him that he had discovered the dead body in the jungle situated on the Dhad Devi - Motipura Road. The dead body was discovered thirty steps away from a wall. Body of Neelu Rana showed marks of violence. Ankush Wadhwa and his friends had misbehaved with Neelu Rana. Since she protested their overtures, they killed her and dumped her body in the jungle'. He further alleged that 'Ankush Wadhwa pretended that his car had met with an accident and had himself admitted at the R.K. Hospital at Talwandi. He requested that action be taken against Ankush Wadhwa and his friends for having committed the offence of kidnapping and murder.' (English translation of the Report). On the basis of the said report, the police chalked out a formal FIR, FIR Nb.220/1998 (Ex.P. 124) for offences under Sections 363, 366 and 302 IPC and started the investigation.
5. However, while Mr. Zile Singh was searching for his daughter and in between the lodging of the missing report and the formal FIR by him, around 10:00 PM, one Abdul Wahid (P.W. 28), who happens to be the driver of A-1's father, lodged a report at Police Station Khaitoon, Kota wherein he claimed that 'he was informed by Babbu Seth manufacturer of 'Nirala Dant Manjan' who told him that his mother had told him that Ankush Wadhwa had met with an accident on the Dhad Devi Road. Upon this information, he and the younger brother of Sethji, Sanuth Bhai Sahib, came from different directions and met on Dhad Devi Road. Mr. Mahaveer was also with me, who told them that Ankush Wadhwa's car is lying on the Dhad Devi - Motipura Road, where Ankush is lying in a jeep. When I saw the person in the jeep, it was Ankush Wadhwa. I picked up Ankush. Later on, he met with Ankush Wadhwa's uncle. Subsequently, they got him admitted in a hospital. At the site of the accident, a dead girl was lying who was wearing pant and shirt. He informed the police that he has come to lodge the said report.' (English translation of the Report). However, as the information was incomplete, the police merely recorded the said information in the Roznamcha (Ex. P. 143). It is pertinent to note that the said report was lodged by Abdul Wahid who was accompanied by A-2. At the relevant time, A-2 was working as a Staff Officer in the DIG Office, Kota Range.
6. According to the prosecution, after receiving the said information, Mr. Kan Singh (P.W. 23), Abdul Wahid (P.W. 28) and A-2 along with few other policemen left for the scene of the accident. The prosecution further claims that under the instruction of ; A-2, the dead body was removed and transported to the hospital by Mr. Kan Singh ; (P.W. 23). It Is further claimed that while at the scene of the crime, A- 2 had called a photographer, Anand Kumar (P.W. 3) and had the dead body and the damaged car photographed. According to Mr. Kan Singh (P.W. 23), he had recovered certain objects such as a bracelet, pieces of broken hair clip, lady shoes and a 'Pana' (a ranch). Once the body was transported to the hospital, Mr. Kan Singh met Mr. Zile Singh who identified the body as his daughter.
7. On the next day of the incident, on 21.05.1998 the investigation of the case was handed over to Mr. Satyapal Singh (P.W. 56) who happens to be the SHO, Vigyan Nagar and also happens to be the neighbor of the complainant, Mr. Zile Singh. However, on 23.05.1998, the investigation was taken from Mr. Satyapal Singh and was handed over to the CID (CB). The said investigation was carried out by Mr. Shiv Prasad Sharma (P.W. 59). Subsequently, on 05.06.1998, the case was transferred to the CBI for further I investigation. Mr. Anil Kumar Ohri (P.W. 62) carried on the investigation for the CBI.
8. After a thorough Investigation, the CBI filed a charge sheet against A-1 for offences under Sections 302, 201, 120B(1) read with Section 363 IPC. It also filed a charge sheet against A-2 for offences under Sections 120B(1) read with Section 201, 119 and 217 IPC. Eventually, on 04.05.2001, A-1 was charged for offences under Sections 363, 302, 201 and 120-B read with Section 201 IPC. On 07.05.2001, A-2 was charged for offences under Sections 119, 201, 217 and 120-B read with Section 201 IPC. Both the accused persons denied the charges and claimed trial. In order to prove Its case,the prosecution examined sixty-two witnesses and submitted 210 documents. In his defense, A-1 examined four witnesses; A-2 examined three witnesses in his defense. The defense also submitted fifty-six documents. After going through the oral and; documentary evidence, the learned trial Judge convicted and sentenced the appellants as mentioned above. Hence, these appeals before this Court. As both the appeals challenge the same impugned judgment, they are being decided by this common judgment.
9. We shall first deal with the case of A-1. Since the case is based on circumstantial evidence, the learned Trial Court had relied upon the following circumstances in order to convict A-1: Firstly, according to the testimony of Neha Rana (P.W.47), Neelu Rana was last seen alive in the company of A-1. Secondly, injuries were found on the body of the deceased. Thirdly, injuries were found on the body of A-1. Fourthly, blood group 'A' was found present In the blood stained soil from the scene of the crime. The learned trial Court, therefore, concluded that the deceased must have belonged to the 'A'blood group. Fifthly, blood group 'A' was also found present on the clothes worn by A-1, Sixthly, blood group 'A' was also found in the Rexene pieces recovered from the roof of the car. Seventhly, A-1 had failed to give a proper explanation for the injuries sustained by him. Eighthly, he had also failed to give a| proper explanation about the death of Neelu Rana. Lastly, he had taken a false plea of alibi in his defense.
Mr. S.R. Bajwa, Senior Advocate, and the learned Counsel for A-1, has raised a plethora of contentions before this Court : firstly, the prosecution has come up with three different versions with regard to the death of Neelu Rana: according to the first story, Neelu Rana was kidnapped by A-1 and his friends and was taken to a hotel. There, she was ravished by them; she was killed by them; she was carried in the trunk of the car; she was eventually dumped in the jungle from where her body was recovered by Mr. Kan Singh.
According to the second story, Neelu Rana was kidnapped only by A-1, taken to a solitary place on the Dhad Devi - Motipura Road. At that spot, some altercation took place between Al and Neelu Rana. He hit her over the head with a Pepsi bottle made out of glass. She died.
According to the third story, while A-1 and Neelu Rana were sitting at a solitary place and were enjoying some snacks, three boys came to the place and started misbehaving with Neelu Rana. They also tried to assault A-1. A-1 panicked and rashly drove of the car. The car met with an accident. Due to the accident, A-1 sustained certain injuries and became unconscious. Subsequently, the body of Neelu Rana was discovered beyond the wall where the car met with an accident. The dead body of Neelu Rana not only showed antlmortem injuries, but also bore post-mortem burnt injuries. According to the learned Counsel, since the prosecution has come up with three different versions of the occurrence, it has shifted its stand. Due to the shifting stand, the prosecution has miserably failed to prove the offences beyond all reasonable doubts against A-1. Secondly, the learned judge has erred in convicting A-1 on the basis of highly unreliable evidence produced by the prosecution.
Thirdly, the prosecution has produced seven witnesses, namely Ram Lal (P.W. 14), Amar Singh (P.W. 32), Ram Gopal (P.W.33), Jagdish (P.W.35), Sumer Singh (P.W.39), Balji (P.W.40) and Bhanwar Lal (P.W.41). These witnesses have probabilized the defense taken by A-1 that he had met with an accident and had become unconscious, and Neelu Rana was killed not by him, but by the three miscreants. According to the learned Counsel, out of these seven witnesses, only two, namely Jagdish (P.W. 35) and Sumer Singh (P. W. 39) have been declared hostile by the prosecution. But, they have been declared hostile since they refused to identify A-1, as the culprit, in the court identification. But the other witnesses, out of seven witnesses named above, have knocked the bottom out of the prosecution story, wherein the prosecution has alleged that only A-1 had committed the murder of Neelu Rana.
Fourthly, the prosecution has not only submitted the charge sheet against A-1 and A-2, but has also kept the investigation pending against four persons under Section 173(8) Cr, P.C. Despite the lapse of ten years, the Investigation is still pending against these four persons. Thus, according to the prosecution, itself, four more persons were equally involved in committing the crime along with A-1 & A-2.
Fifthly, the evidence of 'last seen' is based on the testimony of Neha Rana (P.W.47). However, Neha Rana is a concocted witness. She is, thus, an untrustworthy witness. Her being a planted witness is amply clear from the fact that though she is the sister of the deceased, although her earliest statement was recorded by Mr. Satyapal Singh (P.W'56) on 21.05.1998 i. e, the day after the occurrence, but she did not reveal that the deceased was 'last seen' with A-1. Twenty-three days after the date of the incident, these facts came tumbling out in her supplementary statement, by when the investigation had already been transferred to the CBI. Moreover, Mr. Zile Singh in his examination-in-chief claims that while he was searching for Neelu Rana, he had spoken to Neha Rana on the phone, and she had informed him that Neelu Rana had gone with A- 1. But this fact has not been mentioned by him either in the FIR (Ex.P.124) lodged by him at the Police Station, Nayapura, or in his statements recorded under 161 Cr. P. C. (Ex. D. 9 and Ex. D, 10). Thus, according to the learned Counsel, since Neha Rana maintained studied silence about the fact of 'last seen', clearly she is an unreliable witness.
Sixthly, the prosecution has failed to prove the blood group of the deceased. Although the prosecution claims that it had collected blood stained soil from the place where the body of Neelu Rana was discovered, but this claim is doubtful. For, the body was transported in the night of 20.05.1998 itself, by Mr. Kan Singh. The site plan was drawn up by Mr. Satyapal Singh at 2:30 PM on 21.05.1998. Mr. Satyapal Singh (P.W.56) claims in his testimony that the site plan was made in the presence of Mr. Kan Singh. But Mr. Kan Singh has emphatically denied this fact. In absence of Mr. Kan Singh, no one could have told Mr. Satyapal Singh the exact location from where the body was recovered. Since the place from where the body was removed is unknown, the possibility that Jibe blood stained soil was collected from the right place becomes doubtful. Moreover, whose blood the soil had soaked is unclear. Furthermore, Mr. Anil Ohri (P. W. 62) the Investigating Officer for the CBI, admits that the blood stained clothes of the deceased were recovered, and the same were sent to the Rajasthan State Forensic Science Laboratory at Jaipur. But, subsequently, directions were issued, during the course of trial, that the clothes were to be sent to the CBBM at Hyderabad for blood grouping and DNA testing. The findings of the said testing were intentionally withheld from the court by the prosecution. In fact, according to Mr. Ohri (P. W. 62), the said report was withheld as 'it did not buttress the case of the prosecution'. Therefore, adverse inference should be drawn for withholding the said report from the trial court. Hence, the prosecution has not brought any evidence to prove that the blood group of the deceased was, in fact, 'A' blood group. Moreover, once the prosecution has failed to prove the blood group of the deceased, the presence of blood group 'A' on the clothes of the accused, or on the Rexene would not connect A-1 to the alleged crime. Thus, the learned trial court has misread the evidence on the point of blood group of the deceased.
Seventhly, the learned trial Court has erred in placing reliance on the false plea of alibi taken by A-1. According to the learned Counsel, A-1 took the plea,of alibi, for the first time', in his statement under Section 313 of Criminal Procedure Code. According to him, an accused is not precluded from taking an alternative defense. Although, the accused had pleaded alibi for the first time in his statement under Section 313 of Cr. P.C, but he had built up his defense of accident and assault by miscreants through the cross-examination of the prosecution witnesses. In fact, these two defenses were probablized by seven witnesses produced by the prosecution itself. Moreover, the taking of false plea cannot be the sole ground for conviction. In order to buttress this contention, the learned Counsel has relied upon the case of Babu Lal v. State of M. P. : 2003CriLJ2536 . He has further argued that the falsity of the defense cannot take place of proof. In order to buttress this contention, the learned Counsel has relied upon the case of Shankar Lal Gyarsi Lal Dixit v. State of Maharashtra : 1981CriLJ325 . He has further contended that even if the defense is not pleaded, the Court can still find out the defense in favor of the accused and can grant the benefit of the said defense. In order to buttress this contention, the learned Counsel has relied upon State of U. P. v. Ram Swarup and Ors. : 1974CriLJ1035 and Pratap Misra and Ors. v. State or Orissa : 1977CriLJ817 . He has also argued that falsity of the defense would not-strengthen the prosecution case. In order to support this contention he has relied upon BaWev Raj v. State of Himanchal Pradesh : 1980CriLJ385 . According to the learned Counsel, in order to succeed, the prosecution must stand on its own legs. In order to buttress this contention, the learned Counsel has relied upon Bhagirath v. State of Madhya Pradesh : 1976CriLJ706 .
Eighthly, the learned Counsel has also contended that the accused has taken the defense that the death of Neelu Rana had occurred only because misfortune had fallen upon them while they were sitting and enjoying each other's company. According to him, three boys had attacked them while they were sitting in the car. Therefore, the benefit of exception contained in Section 80 of IPC should have been given to A-1. The fact that a misfortune had fallen upon the accused and NeeluRana is amply clear from the testimony of Ram Lal (P.W.I4), Amar Singh Gochar (P.W.32), Ramgopal (P.W.33), Jagdish (P.W.35), Sumer Singh (P.W.39), Balji (P.W.40), Bhanwar Lal (P.W.41). Although these persons may not have been eye-witness to the assault and to the accident, but nonetheless they were told by A-1 immediately after the accident, how the accident had occurred. Therefore, their testimonies are relevant under Section 6 of the Evidence Act. On the basis of their testimonies, the existence of accident or misfortune is well established. Thus, the benefit of the said exception should have been given toA-1.
Ninthly, the learned Counsel has also contended that an alternative defense was suggested in the cross-examination of the seven witnesses named above. This alternative defense, thus, could be culled out from the cross-examination. Although, this defense was not specifically pleaded by the accused in his statement, the said defense was suggested in the cross-examination. Therefore, the accused can take the benefit of the said defense. In order to support this contention, the learned Counsel has relied upon the cases of State of U.P. v. Lakhmi : 1998CriLJ1411 , Kashiram and Ors. v. State of MP. : AIR2001SC2902 and Ouseph @ Thankachan v. State of Kerala : (2004)4SCC446 .
Tenthly, the injuries suffered by the deceased do not bring the case within the ambit of Section 300 IPC. Firstly, the deceased has suffered only nine injuries. Out of these nine injuries, only two injuries are lacerated wounds-one on the head, the other on the right ring finger joint. According to the Post Mortem Report (Ex.P. 116) she has suffered lacerated wound of 1' X1/4' x1/2' vertical on the right side of occipital region. According to the said Report, death was caused due to anti-mortem head injury. However, neither the Post- Mortem Report (Ex. P. 116), nor Dr. Y.K. Sharma (P.W.61), who had conducted the post-mortem, states that the said injury on the head was 'sufficient in ordinary course of nature to cause the death' of the deceased. Moreover, according to Dr. Y.K. Sharma (P.W.61), injury Nos. 1-an abrasion on the right side of the occipital region, and injury No. 2-the lacerated wound on the occipital regiofi, can be caused by a single blow. Therefore, at best, a single blow was inflicted upon the deceased and that, too, by a blunt object. Further, according to Mr. Satyapal Singh (P.W. 56), Shiv Prasad Sharma (P.W.59) and Anil Kumar Ohri(P.W.62), the Investigating Officers, the blunt object used for committing the alleged murder was never recovered. Therefore, Dr. Y.K. Sharma (P.W.61) was not in a position to state whether the injuries received by the deceased were caused by the particular weapon used by the accused. Hence, the offence of murder is clearly not made out.
Eleventh, the prosecution has failed to prove the injuries caused on the body of the appellant. In fact, it is A-1 who has claimed that he has received these injuries in the accident. His claim has been corroborated by Ram Lal (P.W. 14), Amar Singh Gochar (P.W.32), Ramgopal (P.W.33), Jagdish (P.W.35), Sumer Singh (P.W.39), Balji (P.W.40), Bhanwar Lal (P.W.41). Moreover, on 20.Q5.1998 around 5:55 PM, one Mr. Mukesh Solanki had informed Police Station, Udhyog Nagar, Kota that a car had met with an accident at Dhad Devi - Motipura Road. The said information was received by Jaswant Singh, Head Constable and Heera Lal, Head Constable. The fact that Mukesh Solanki had informed Jaswant Singh is clearly revealed in Jaswant Singh's statement under Section 161 Cr. P.C. (Ex.D-45) and Heera Lal in his statement under Section 161 Cr. P.C. (Ex.D-44). Therefore, the injuries of the A-1 do not connect him to the alleged offence of murder and kidnapping.
Twelfth, the prosecution has withheld vital evidence from the Court e.g., despite the existence of report of CBBM Hyderabad, with regard to the DNA and blood grouping of the deceased, and the DNA report of the accused prepared at Hyderabad. Moreover, the report with regard to blood group of the accused, report with regard to finger print lifted from the window glasses and the Pepsi bottle, the result of Lie Detector Test and the sputum test, and the age determination test of A-1 were intentionally withheld by the prosecution from the Court. Therefore, an adverse Inference should be drawn against the prosecution. Moreover, material witnesses such as Mr, Mukesh Solankl, the person who lodged the information at Police Station Udhyog Nagar and Mr, Jaswant Singh and Mr. Heera Lal, Head Constables, who received the said Information, were not produced as witnesses. Furthermore,! Dayaram, who first pointed out that a dead body of a young girl Is lying beyond the wall was, never produced as a witness. Since material witnesses have been withheld by the prosecution, the same should be read against it.
Thirteenth, the learned Counsel has contended that the prosecution story is replete with lacunae. Although the case is based on circumstantial evidence, the place of assault and murder, the manner of causing of the death, the motive for committing the murder are conspicuously missing in this case. Similarly, no explanation has been given by the prosecution about the burned injuries caused on the body of the decea sed. Further, the weapon used for committing the murder is conspicuously missingi These gaping holes in the case of circumstantial evidence do not permit the com pletion of a chain of circumstances which would unerringly point to the guilt of A-1.
Lastly, although it was repeatedly pleaded before the learned trial Court that A-1 was a juvenile on the date of occurrence, although ample evidence exists to prove the fact that A-1 was, indeed, juvenile on the date of occurrence, still he has been convicted and sentenced by a regular trial court. Therefore, his sentence and subsequent incarceration are absolutely illegal.
10. On the other hand Mr. Y,K. Sharma, the learned Counsel for the CBI, has raised the following contentions before this Court:
Firstly, this is not merely a case of kidnapping and murder, but more so, a caste where the evidence of murder was intentionally and systematically destroyed by A-1 and A-2. Therefore, pieces of evidence are bound to be missing and are bound to be presented in a confused manner by the prosecution. But, merely because there are gapping holes and some confusion in the story of the prosecution, It would not be fatal to the prosecution case.
Secondly, according to the prosecution, Neelu Rana was enticed by A-1, was taken to a lonely place where A-1 tried to take liberties with her. When she protested his physical overtures, a scuffle took place between the two; when Neelu Rana tried to flee from the car, A-1 assaulted her over her head with a Pepsi bottle made out of glass. Resultantly, she sustained two injuries on the head, and died on the spot. After killing her, the accused came and sat inside the car. Later on, the car was intentionally damaged by the accused persons in order to create the impression that the car had met with an accident. Thereafter, the accused was taken by Mr. Abdul Wahid (P.W. 28), A-2 and few other persons and was admitted at R.K. Hospital at Talwandi. Thuis, according to the learned Counsel, the offence of kidnapping, murder and bf destruction of evidence is well proved.
Thirdly, the story of the accident has been created by A-1 and A-2 in order to destroy the evidence and to create a camouflage giving the impression that A-1 was innocent victim of the said accident. Moreover, if there were a genuine accident, a FIR would have been lodged. But in the instant case, no FIR has been lodged with regard to the said accident. Furthermore, the report lodged by Mr. Abdul Wahid (P.W.28) at Police Station Khaitoon with regard to the alleged accident could not have been lodged at the said police station as the site of the 'accident' was not within the jurisdiction of Police Station Khaitoon. Therefore, in order to fabricate evidence of the alleged accident, a false report was lodged at Police Station Khaitoon by Mr. Abdul Wahid (P.W.28) under the direction of A- 2. Further, Mr. Abdul Rehman (P.W.24) had examined the damaged car and had clearly stated both in his report as well as in his testimony before the Court, that the car was intentionally damaged. Therefore, the car was not damaged in an accident, but was intentionally damaged to look like an accidental car. Moreover, Mr. Shailendra Jha (P.W.9), in his report (Ex. P. 112), has clearly stated that the scene of crime was disturbed and the car was intentionally driven so as to justify the plea of alleged accident.
Fourthly, the story of assault by miscreants was never pleaded by the prosecution. In fact, the said story was not even revealed by A-1 either to the alleged seven witnesses of the accident, or to Dr. Rajendra Prasad Sharma (P.W.I) who treated him in the R.K. Hospital at Talwandi. Moreover, the said defense was not taken by A-1 in his statement recorded under Section 313 of Cr. P.C. Thus, the defense is unjustified in pleading that the prosecution has offered three different versions of the incident.
Fifthly, from the testimony of Dr. Y.K. Sharma (P.W.1 1), the motive of the case is clearly proved. According to the said witness, on the foresheet of the vagina of the deceased, there were some scratch marks, which were reddish in color, and which were fresh in nature. Moreover, a finger could easily be inserted into the vagina. According to the learned Counsel, these two facts clearly prove that A-1 had tried to misuse his liberty and tried to sexually exploit the deceased. She, in turn, repulsed his advances. Because of her refusal, an altercation took place between them. Therefore, the motive behind the said murder was to take revenge for the frustration caused by her refusal to have sex with him. Hence, the prosecution has proved the motive behind the crime.
Sixthly, the testimony of Neha Rana (P.W.47), with regard to the evidence of last seen, is corroborated by Mr. Amar Singh (P.W. 32), Mr. Ramgopal (P.W. 33) and Mr. Sumer Singh (P.W. 39). Moreover, A-1 has admitted to the witnesses of the accident that Neelu Rana was with him. In fact, it is he who had identified the body of the dead girl lying at the site as Neelu Rana. Hence, the evidence of 'last seen' is well established.
Seventhly, a bare perusal of photographs (Ex. P. 34, 35, 36,37, 38, 39, 42, and 43) clearly show that the hair of the deceased were disheveled. These photographs clearly prove that some sort of scuffle must have taken place between A-1 and the deceased. The scuffle is further proved by the Recovery Memo (Ex. P. 117) of the clothes of A-1. According to the Recovery Memo (Ex. P. 117), the undershirt of A-1 had blood spots, the shirt was torn near the collar and there were some blood stains on the sleeves. The trouser worn by him also had blood stains. The torn clothes and the presence of blood clearly prove that a scuffle had taken place between A-1 and Neelu Rana, and A-1 had struck the deceased with a Pepsi bottle. Due to the injury on the head, she died. The fact that the injury on the head was the cause of her death is borne out by the Post Mortem Report (Ex. P, 116) as well as by the testimony of Dr. Y.K. Sharma (P.W. 11).
Eighthly, in case A-1 was attacked by three boys, or in case he had sustained injuries in an accident, A-1 would have clearly stated so both to the witnesses and to the Court. But he failed to do so. In fact, he gave three different and contradictory explanations for the injuries sustained by him, namely, he had fallen from a scooter, he had slipped on the stairs in his house, and he had sustained injuries in an accident. These false pleas clearly point to the guilt of the A-1.
Ninthly, according to Mr. Satyapal Singh (P. W. 56), Mr. Kan Singh (P.W. 23) was very much present when he made the site plan (Ex. D. 17). In fact, Mr. Kan Singh does not deny his presence when the site plan was made. Therefore, Mr. Kan Singh had pointed out the place where the body was recovered. The blood stained soil was, in fact, picked up from the place where the body was recovered. According to the State FSL Report (Ex. P. 204), the said soil contained 'A' blood group. Hence, the deceased belonged to blood group 'A'. Furthermore, according to the said Report the same blood group was discovered in the Rexene recovered from the roof of the car, and from the clothes worn by A-1. Thus, there is a clear-cut linking evidence to connect A-1 to the alleged murder.
Tenthly, undoubtedly, the deceased was a minor. This is proved by the school certificate (Ex. P. 176) as well as from the testimony of Sister Ida (P.W. 44). But, A-1 was major on the date of the crime. A-1's date of birth is 28-1-1980. This date of birth is indicated in the application form for permanent license (Ex. P. 154 A) filed by A-1, j himself. Even according to his Driving License (Ex. P. 153 A) his date of birth is shown as 28-1-1980. Therefore, on the date of incident, A-1 was eighteen years and four months old. Hence, he was major. He was, thus, rightly convicted and sentenced by the learned trial Court.
Eleventh, Section 106 of the Evidence Act places a burden on the accused person to explain certain facts which are only within his knowledge and not known to others. Since there is ample evidence about last seen and for the existence of the blood group of the deceased on the clothes of A-1, he is legally bound to explain as tot how Neelu Rana died while she was with him. A-1 has failed to explain the cause of her death and the circumstances under which she expired. In fact, A-1 has given false explanations for her death. The falsity of his plea should be taken as a circumstance to be read against him in a case based on circumstantial evidence.
11. In rejoinder, Mr. S.R. Bajwa, the learned Senior Counsel, has raised the following contentions:
Firstly, the prosecution has partly relied upon the documentary evidence to make out a case against A-1. It has relied on the Roznamcha (Ex. P. 143), Site Plan (Ex[ D. 17), Recovery Memos (Ex. P. 117), application for permanent license (Ex. P. 154 A) and the driving license (Ex. P. 153 A). However, not a single question was asked by the learned trail Court to the accused with regard to these documents when the statement of A-1 was recorded under Section 313 Cr. P.C. Similarly, the photographs now relied by the prosecution were never put to him, while his statement under Section 313 was being recorded. Moreover, certain circumstances emphasized by the learned Counsel for the CBI, such as taking the deceased to a lonely place, the story of the physical overtures, the story of scuffle and the subsequent assault on the deceased and heir resultant death, none of these circumstances were put to the accused while his statement under Section 313 was being recorded. Therefore, according to the learned Counsel, neither the documentary evidence, nor these circumstances can be read against A-1.
Secondly, the requirement of Section 106 of the Evidence Act cannot be imposed upon A-1. According to the learned Counsel, once the prosecution has proceeded t|o establish that the accused had made physical advances, had tried to sexually exploit the deceased, there was some disagreement between two and altercation had taken place and she was hit by a Pepsi bottle over her head, there is no need for A-1 to explain the circumstances under which the deceased had died. For, the prosecution has proceeded to 'prove' the circumstances of her death. Thus, it cannot be said that these circumstances and the cause of death is 'especially known' only to the accused and to no one else. Therefore, when the prosecution raises the boggy of Section 106 of the Evidence Act, it is reprobating and approbating simultaneously. On the one hand, it claims that it does not know the circumstance under which the deceased was killed.
Therefore, it is the duty of the accused to explain such circumstances. Yet, on the other hand, it proceeds to narrate the circumstance under which the deceased was killed. Hence, the prosecution has needlessly invoked Section 106, in the present case. In fact, Section 106 does not come to the rescue of the prosecution. In order to buttress his contention, the learned Counsel has relied upon the case of Murlidhar and Ors. v. State of Rajasthan : 2005CriLJ2608 .
Thirdly, the prosecution has taken contradictory stand with regard to the investigation done by the Police. On the one hand, it has claimed that the police investigation is tainted and, thus, unacceptable. Yet, on the other hand, it has relied on the testimony of Mr. Amar Singh (P.W.32) Mr. Ramgopal (P.W.33), and Mr. Sumer Singh (P.W.39), all of whom were examined and whose statements were recorded by the police. The prosecution cannot expect the Court to accept the testimonies of these witnesses in part, and to disbelieve them in parts. Since, prosecution has not declared these witnesses as hostile, their testimonies have to be accepted, even if it knocks the bottom out of the prosecution case.
Fourthly, as far as the last seen by Mr. Amar Singh (P.W.32) and Mr. Ram Gopal (P.W.33) are concerned, they merely stated that they saw a young man drive a car which eventually met with an accident. Neither of these two witnesses saw A-1 with the deceased. Therefore, their testimony does not corroborate the testimony of Neha Rana (P. W. 47) on the point of last seen. She is, in fact, the 'sole eyewitness' about the last seen.
Fifthly, while recording the statement of accused, A-1, under Section 313 Cr. P.C, no question was asked from him with regard to the application for permanent license. Therefore, the date of birth given in the said application cannot be taken to prove the fact that A-1 was major on the date of the incident. In fact, while answering the last question in his statement A-1 has clearly stated that he was minor on the date of incident. Surprisingly, the learned trial Court, has noticed the fact that A-1 was sixteen years old, yet the learned Judge has ignored Section 20 of the Juvenile Justice Act, 2000. According to the said Section, the cases which were pending when the Act came into force, although the trial could be completed by the learned trial Court, but for the purpose of sentencing the juvenile should be referred to the Juvenile Board. However, the said procedure has not been followed by the learned Judge. Therefore, the conviction and sentence are absolutely illegal.
Lastly, the learned Counsel has argued that even if the prosecution case were to be accepted that at the heal,,of the moment, the accused A-1 had hit the deceased with a Pepsi bottle, he had no intention and no knowledge that death would be caused. Obviously, the case does not fall within the ambit of Section 302 IPC. The case falls either under Section 325, or, at worst, under Section 304, Part II of IPC. Since the accused A-1 has already served a sentence of ten years, the offence under Section 302 should be reduced to 304, Part II IPC; he should be released as undergone.
12. We have heard learned Counsel for the parties, have examined the record and have perused the impugned judgment.
13. While deciding these cases, certain principles of criminal jurisprudence should be kept in mind. The principle governing the case of circumstantial evidence was recently reiterated by the Hon'ble Supreme Court in the case of Kusuma Ankama Rao v. State of A.P. : 2008CriLJ3502 in the following words: The conditions precedent...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 exclude every possible hypothesis except the one to be proved; and
(5) there must be a chain of evidence so complete 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.
14. Often, it has been said that the distance between 'may be true' and 'must be true' is a long distance - a distance that the prosecution must cover in order to bring home the guilt of the accused. Thus, all the circumstances should be scrutinized in order to see if the guilt of the accused is established or not.
15. Further, the prosecution story can neither belong to 'the theater of the absurd', nor to 'the stream-of-consciousness'. The prosecution story must be a linier narration of facts and must be a single story. The prosecution cannot offer a multiple choice answers to the Court to pick and choose from. Like the Eiffel Tower, the prosecution case must stand on its own sturdy, well planted feet. It cannot derive any benefit from the weakness of, or from the contradictions of the defense story. Like the rock of Gibraltar, the prosecution must stand tall and aloof keeping at bay the sea of doubts. -
16. Moreover, the canvas painted by the prosecution cannot resemble a piece of modem art-disjointed, disfigured, full of colors, full of forms but without much content. Instead, the prosecution has to present a clear, cogent and harmonious picture to the Court. No matter how much suspicion the prosecution is able to arouse in the mind of the Court, such suspicion can never take the place of proof. No matter how heart-wrenching, how blood-curdling prosecution story may be, but the Court cannot be swayed by the ghastliness of the crime. The Court is legally obliged to weigh the evidence in an impartial and detached manner. If the Court were to be swept by the pathos of the prosecution story, the Court would be convicting the accused not on the basis of law, but on the basis of morality. Moral conviction is a concept alien to criminal jurisprudence.
17. In the case of Mousam Singha Roy v. State of West Bengal : (2003)12SCC377 , the Hon'ble Supreme Court has observed that, 'the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is the settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused',
18. In Subhash Chand v. State of Rajasthan : (2002)1SCC702 , the Apex Court observed as under:
The Court has to proceed to examine each of the pieces of Incriminating circumstantial evidence so as to find out if each one of the circumstantial evidence is proved individually and whether collectively it forges such a chain of incriminating circumstances as would fasten the guilt on the accused beyond any shadow of reasonable doubt. ...though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. 'Human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions'. Between may be true and must be true there is a long distance to travel which must be covered by cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict.
19. In the present case, three different investigating agencies, namely the police, the CID (CB) and the CBI had investigated the case. The learned Counsel for the CBI has vehemently debunked the investigation by the police. Instead, he has pleaded that according to the CBI, the prosecution has narrated a single story rather than three different versions as claimed by the defense counsel. However, this contention is belied by the record and by the testimonies recorded in the court.
20. Mr. Zile Singh (P.W.I8) had filed a written report (Ex. P. 123) before the Police Station, Nayapura, wherein he had clearly stated that 'Ankush Wadhwa, along with his friends, had kidnapped his daughter.' He further claims that 'Ankush Wadhwa, along with his friends, had misbehaved with his daughter. Upon her protest, they had killed her and had dumped her dead body in jungle.' He had prayed that 'action should be taken against Ankush Wadhwa and his friends'. In his examination-in-chief, he admits that Ex. P. 123 had been signed and submitted by him. He admits that the FIR (Ex. P. 124) was also signed and lodged by him. Thus from the very beginning of the case, the complainant claimed that Neelu Rana was killed not only by A-1, but also by his friends. Therefore, this version exists from day one of the case.
21. Moreover, in his cross-examination, Mr. Zile Singh Rana admits that he had told the CID (CB) that 'strong possibility exists that Neelu Rana was killed in Priya Hotel and subsequently her dead body was dumped in Jungle.' 'Although he cannot remember the name of the person who had informed him about the alleged murder in Priya Hotel', but he states that 'many people had told him that friends of Ankush Wadhwa, namely Navratan Singh Rajawat, Arun Nathani, Batla and Rakesh were involved in the alleged murder'.
22. More importantly, Mr. Satyapal Singh (P.W.56) also admits in his cross-examination that in the course of his investigation, he came to know that Ravi Batla, Rajesh S/o Govindram, Kewalram, Navratan Singh Rajawat, Nathani were also involved in the alleged murder of Neelu Rana. Most importantly, Mr. Anil Kumar Ohri (P.W.62), the Investigating Officer on behalf of CBI, also admits in his examination- chief that 'investigation against other co-accused persons is still pending'. He further states that 'upon a direction issued by the Court, the investigation against other co-accused persons was handed over to the Superintendent of Police, Mr. D.P. Singh'. He further states that 'investigation against the other co-accused persons was handed over to Mr. Sanjay Thai. Notices were also issued to Mr. Sunil Wadhwa and the other persons who had subsequently approached the Hon'ble High Court'.
23. In fact, believing the involvement of other persons in the crime, believing that Neelu Rana's body was carried in the trunk of the car and dumped in the jungle, the police had also recovered the soil from the trunk of the car. The recovered soil was produced as Article-37 before the learned trial court. This fact is proved by Mr. Shyam Singh (P.W.21).
24. Thus, obviously from the very beginning, the complainant and the investigating agency, including the CBI, were of the opinion that not only A-1, but others were equally involved in the murder of Neelu Rana. Therefore, the learned Counsel for the CBI cannot claim that the CBI does not believe in the existence of this version of the story.
25. The learned Counsel for the CB1 has also debunked the other version of the prosecution story that three boys had intruded upon A- 1 and Neelu Rana while they were quietly sitting at a lonely place. According to the learned Counsel, A-1 had never revealed the intrusion and the assault by the three intruders to any witness. But these contentions are also belied by the testimony available on record.
26. In his cross-examination, Mr. Bhanwarlal (P.W.41) states that 'it is correct that the boy who was in the car had told him that while he was driving the car, three boys had pelted big stones at the car. Therefore, the car was damaged, in the panic, he had driving the car rashly and negligently. Therefore, the car had met with an accident. He further states that 'the boy told him that after the accident three boys had assaulted him. Subsequently, he has been injured.' He further states that 'it is true that when he and other witnesses reached the place of accident, three boys were standing there along with a Rajdoot Motorcycle'.
27. Under Section 6 of the Evidence Act, the testimony of Bhanwarlal (P.W.41), as given in the cross-examination, would be relevant and admissible. Despite the fact his statement would defeat the prosecution case, still the prosecution did not reexamine this witness on this point. Therefore, the testimony of this witness would have to be accepted. But, such oral evidence knocks the bottom out of the prosecution case. Hence, obviously, the prosecution, too, has placed three different versions of the alleged crime. Thus, the contention raised by the learned Counsel for the CBI, denying these three versions and claiming that the CBI has offered a single version of the prosecution story, is clearly untenable.
28. Most importantly, the prosecution has offered three different stories to the court. The evidence is so inextricably mixed up that it is, in fact, difficult for the court to separate the chaff from the grain. With the shifting stand of the prosecution, its case falls like a house of cards.
29. Neha Rana (P.W. 47) is certainly the star witness of the prosecution. Since she is the jewel in the crown of the prosecution case, she has to be pristine in her statement, trustworthy in her deposition, and be a witness of sterling worth. After all, it is her testimony which would tilt the scales of justice either in favor of or against the A-1 and A-2. Hence, her testimony has to be examined meticulously by this Court.
30. Neha Rana is the younger sister of the deceased. According to the prosecution, while her father Mr. Zile Singh was desperately searching for Neelu Rana, Neha Rana informed her father, on the phone, that she had gone off to drop Neelu Rana at NIIT, they had stopped at the temple at 'Bad ka Tiraha', there the girls had run into A-1, who was waiting in his car, and eventually Neelu Rana had gone with A-1 in his car (henceforth, these facts shall be referred to as 'evidence of last seen', for short). As mentioned above, the investigation of the case was handed over to Mr. Satyapal Singh, who happens to be the next door neighbor of Mr. Zile Singh Rana and also happens to be the SHO of Police Station, Vigyan Nagar, Kota. It is he who has recorded Neha Rana's statement on the next day of the occurrence, i.e. on 21.05.1998. Neha Rana knew Mr. Satyapal Singh to the great extent that she calls him 'uncle'. Since she is close to Mr. Satyapal Singh, it is expected of her to reveal all the relevant facts within her knowledge to Mr. Satyapal Singh. Since, in her testimony in the Court, she has been confronted with her statement given on 21.05.1998 under Section 161 Cr. P.C. (Ex. D- 29), it is imperative to first peruse the said statement.
31. In her statement, she claims that 'on 21.05.1998 around 2:00 PM her sister Neelu Rana went to NIIT situated at Aerodrome Circle for doing her computer course. Since Neelu Rana did not come back till the evening, her parents were worried. They started looking for her among the relatives. Since she could not be located, her father lodged a report at Police Station Nayapura'. She further states that 'when her father asked her whereabouts of Neelu Rana's friends, she told him that for the last few days A-1 has been calling Neelu Rana on the phone which she herself had received. A-1 wanted to speak to Neelu Rana, but Neelu Rana refused to do so. Therefore, A-1 threatened that he would kill her or would rape Neelu Rana'. She further stated that 'since she was frightened, she did not tell her parents about the telephone conversation on an earlier occasion. Last night, when my sister did not come back home, I told my father about the telephone conversation so that my sister could be discovered'. She further tells us that 'at night her father came back and told them that Neelu Rana's dead body was brought by ASI of Khaitoon Police Station and it has been received at MBS Hospital'. She further states that 'her father told them that A-1 along with his friends had kidnapped Neelu Rana and had raped her and killed her'. According to her, 'her father also told them that a Cello car, bearing registration No. RJ-14 2C-515, was used in the commission of the crime. Her father also told her that he has lodged a report with regard to the alleged kidnapping and murder'. Lastly, she tells us that 'they had received telephone calls from A-1. A-1 along with his friends has converted his threats into reality'. She also claims that 'she had told her father that A-1 happens to be the son of the owner of Nirala Dant Manjan'. In totality this is her entire statement as given by her on 21.05.1998 (Ex. D. 29).
32. Interestingly, in this statement she nowhere states that she had accompanied Neelu Rana on a scooty and had gone to the temple situated at 'Bar Ka Tiraha'. She does not state that A-1 had parked his car in front of the temple and had offered a ride to Neelu Rana. She does not state that Neelu Rana had sat in the car and had gone away with A-1. Thus, the,evidence of last seen is conspicuously missing from the statement.
33. In fact, Neha Rana reveals the story of 'last seen', for the first time, in the supplementary statement given by her on 12.06.1998 (Ex. D. 30). It is pertinent to note that on 06.06.1998, the CID (CB) handed over the investigation of the case to the CBI. Therefore, the supplementary statement (Ex. D. 30) was recorded after the investigation had been handed over to the CBI. In this statement (Ex. D. 30), she claims that she along with Neelu Rana went to 'Talab Wale Mandir'. She also' reveals that while they were returning from the temple, A-1 was sitting in his green colored Cello car. A-1 had called her sister and they conversed for sometime. Afterwards, Neelu Rana sat in the car and went towards the Aerodrome Circle'. She also admits that 'she could not see as to who the other persons were sitting in the car'. She also claims that 'she had told her father that Neelu Rana went with A-1 in his car'.
34. Surprisingly, this statement (Ex. D. 30) was recorded after twenty-three days of the incident. For, twenty-three days, this witness did not utter a single word either to the police or to the CID (CB). Her studied silence over material facts creates a doubt about the veracity and authenticity of her statement.
35. Of course, in her testimony before the Court, she elaborately describes how she went along with Neelu Rana to the temple, how the car of A-1 was parked opposite the temple, how both the girls walked to the car, how A-1 accosted Neelu Rana and offered her a ride in his car, how Neelu Rana eventually agreed to go with him and sat in the car. She further states that at 12'o clock at night when her father came back at home, she told him that A-1 had taken her sister.
36 In her cross-examination, she was confronted with her statement (Ex. D. 29) recorded under Section 161 Cr. P.C. on 21.05.1998. She clearly admits that the statement does not contain any information about Neelu Rana being picked up by A-1 and Neelu Rana going with A-1 in front of her. Further, she either admits the omission in her statement or disowns the entire statement as being false. Yet, Mr. Satyapal Singh (P W 56) in his cross-examination clearly states that 'he had recorded the statement of Neha Rana In the exact words as stated by her'. He further denies that 'she had told him about Neelu Rana going with A-1 on 20.05.1998 while he had recorded her statement on 21.05.1998'. Moreover, in her testimony Neha Rana does not give any explanation about her studied silence for twenty-three days. Therefore, her failure to immediately state about 'last seen' is a grave omission which tantamount to a contradiction on a major fact of the case. The clear cut contradiction between the testimony of Neha Rana and Mr. Satya Pal Singh on the point whether Neha Rana had told him about the evidence of 'last seen', casts a doubt about the trustworthiness of Neha Rana.
37. Furthermore, the prosecution would have us believe that Neha Rana told her father about the 'last seen' on the night of the occurrence itself. But, interestingly in the FIR (Ex. P. 124) lodged by Mr. Zile Singh on 20-5-98, he does not state that his daughter Neha Rana had told him about Neelu Rana going with A-1 and his friends. In case, Neha Rana had told her father about the fact that Neelu Rana had gone with A-1, it would have been mentidned in the FIR. But even the FIR (Ex. P. 124) is conspicuously silent on this point. It is pertinent to note this point as Mr. Zile Singh was confronted with the FIR during his cross-examination as we shall see later in the judgment.
38. Even in his statement recorded under Section 161 Cr. P.C. (Ex. D 9) Mr. Zile Singh does not state that Neha Rana had told him about the 'last seen' on the phone. These facts are conspicuously missing in the statement (Ex. D. 9). Even in his supplementary statement (Ex. D. 10), recorded on 31.05.198, Mr. Zile Singh does not reveal the fact that Neha Rana had told him that Neelu Rana had gone with A-1 in his car. Thus, again there is a long silence on the point of being told about the 'last seen' from Mr. Zile Singh also.
39. Confronted with Ex. D. 9 and Ex. D. 10. in his crossexamination, Mr. Zile Singh states that he did not reveal this fact to the police in Ex. D. 9 because the police did not ask him any question about Neelu Rana going with A-1. He further admits that he did not tell the police that Neha Rana had informed him that A-1 had picked up Neelu Rana from the temple, situated at 'Bad Ka Tiraha'. It is, indeed, trite to state that a witness is expected to reveal every fact which he knows to the police rather than waiting for the police to ask him questions. Undoubtedly, Mr. Zile Singh is an educated person as he holds the post of Research Officer in CAD office. It is not expected from him to wait for the police to ask him about the relevant facts. Thus, his explanation Is not a convincing one.
40. The enigmatic silence of Neha Rana about the 'last seen' for twenty-three days, the conspicuous absence of this fact from the statements of Mr. Zile Singh (Ex. D. 9 and Ex. D. 10) and from the FIR (Ex. P. 124), the non-explanation of inordinate delay of twentythree days, all together create a doubt about the authenticity and the veracity of the evidence of 'last seen'. Obviously, the evidence of 'last seen' has been concocted later on in order to fill up a gapping hole in the story of prosecution. Therefore, on the point of last seen, Neha Rana (P.W.47) is absolutely an unreliable witness. Hence, the first plank of the prosecution case falls apart.
41. In the case of Mangamma Awa @ Nese Yesodamma and Ors. v. State of A.P. : 1995CriLJ2921 , the Apex Court dealt with a case where an alleged eye-witness did not disclose the factum of murder till much later, though she had sufficient opportunities to dp so. The Apex Court observed that it would be unsafe to convict the accused persons on the'basls of her evidence. Similarly, in Maruti Rama Naik v. State of Maharashtra : 2003CriLJ4326 , the Hon'ble Supreme Court dealt with a case where a close relative saw the assault on the deceased, yet did not Inform anyone about the said assault for over twelve hours. The Apex Court held that the testimony of such a witness could not be relied upon to convict the accused person. Likewise, in the present case, Neha Rana had sufficient opportunities to reveal the factum of last seen to her father in the night of the incident, and to Mr. Satya Pal Singh on the next day. Yet, she did not disclose this fact till the CBI recorded her supplementary statement under Section 161 Cr.P.C. twenty-three days later. The principle annunciated by the Apex Court is, thus, fully applicable to the present case.
42. Although the learned Counsel for the CBI has claimed that Amar Singh (P. W. 32), Ram Gopal (P. W. 33) have corroborated Neha Rana's testimony about the last seen, but such is not the case. Amar Singh (P.W. 32), Ram Gopal (P. W. 33) have merely stated that they saw a young man drive a green colored Cello car. But, neither of these two witnesses claim that they saw the young man accompanied by the deceased girl. Hence, Neha Rana happens to be the sole eyewitness to the alleged evidence of 'last seen'. However, the sole eye-witness is not a witness of sterling worth.
43. It is true that A-1 does identify the body of the dead girl as Neelu Rana. However, the prosecution case cannot act as an unruly horse. It is bound to function within well defined parameters. Firstly, since it represents the State, it is legally bound to protect the rights of the accused. Secondly, it must ensure a fair trial. The aim of prosecution is not to convict a person through dubious means; the aims are to fairly try the offender, to prove his guilt, to punish him for his crime. Thus, the prosecution must respect the right of the accused to a fair trial - a fundamental right which is enshrined in Article 21 of the Constitution of India. A prosecution, which violates this basic right, converts itself into a persecutor. In a democracy, under Rule of Law, the prosecutor cannot mutate into a persecutor. A clear distinction has to be maintained. Thirdly, the prosecution is accountable to the Court. Like any other party before the court, the prosecution, too, is required to come with clean hands. In case, the prosecution falsely introduces a witness, the prosecution case loses its credibility. The prosecution cannot be permitted to play fraud with the court. For, fraud is fatal to the prosecution. In the present case, by introducing a witness, namely Neha Rana (P.W.47), the prosecution has tried to hoodwink the court. Hence, the conduct of the prosecution raises grave doubts about the authenticity- of the case in the mind of the court. Obviously, the prosecution case stands vitiated. It deserves to be rejected lock, stock and barrel.
44. The evidence with regard to the blood group of the deceased is crucial to this case. Prosecution would have us believe that the deceased belonged to the blood group 'A'. It has further argued that the blood of the deceased was present on the clothes belonging to A- 1. However, the claim of the prosecution is on shaky ground. Admittedly, Mr. Kan Singh (P. W. 23) transported the body of the deceased, in the night of 20.05.1998, from the scene of crime to the Govt. Hospital. At the time when the body was removed, no bloodstained soil was collected by Mr. Kan Singh. According to Mr. Satyapal Singh, on 21.05.98, Mr. Kan Singh went with him to the scene of the crime when he went to draw up the site plan. According to the site plan (Ex. D. 17), it was drawn up at 2:30 PM on 21.05.98. According to Ex. P. 120, the bloodstained soil was collected on the same day around 3:15 PM. According to Mr. Satya Pal, when he drew up the site plan (Ex. D. 17), he was accompanied by Mr. Kan Singh.
45. But Mr. Kan Singh's testimony on this point is self-contradictory. On the one hand, in his cross-examination he has emphatically denied this fact, when he has said 'it is wrong to say that on 21.05.1998 around 2:30 PM I went to the site of the scene of crime. It is wrong to say I went to the scene of the crime with Mr. Satyapal Singh.' Yet, later on in the cross-examination he claims that the site plan was made under his supervision. He further claims that the site plan was signed by him. Yet again, when he is asked as to the timing when the said site plan was prepared, he denies the time as recorded in the site plan. He further claims that 'around 2: 30 P.M. 1 was not at the scene of the crime, but was in the office of S. P. Kota (Rural)'. Thus, the self-contradictory stand does not inspire confidence in our mind. Due to the conflicting account given by Mr. Kan Singh, he is not a trustworthy witness on the point of whether he had accompanied Mr. Satya Pal when the site plan was made.
46. The Recovery witness of the collection of bloodstained soil, Mr. Navendra Singh (P.W. 13), in his examination- in-chief, does not state that when the bloodstained soil was collected, Mr. Kan Singh was present with the police force. Interestingly, this witness states that he had gone to the scene of the crime with Mr, Mahipal Slnght However, about the presence of Mr. Kan Singh, this witness is silent. Although, Mr. Mahipal Singh was a witness to the recovery of bloodstained soil, he has not been produced as a witness by the prosecution. Therefore, it is unclear whether Mr. Kan Singh had-accompanied Mr. Satya Pal Singh on 21.05.1998 when the site plan was made and the bloodstained soil was recovered or not. In the absence of Mr. Kan Singh, It is difficult to understand as to who would have told Mr. Satya Pal Singh the exact place from where the dead body was recovered. Hence, the place from where the bloodstained soil was picked up becomes doubtful. Therefore, it is highly doubtful if the blood belonging to the deceased was lifted from the soil.
47. Even if the case of the prosecution were to be accepted that Mr. Kan Singh had told Mr. Satya Pal Singh the exact place where the dead body was discovered, and the site plan was made on the basis of the said statement, even then the site plan Is inadmissible. For, It Is hit by Section 162 Cr. P. C. In the case of Tori Singh and Anr. v. State of UP. : [1962]3SCR580 , the Apex Court held as under:
A rough sketch map prepared by the Sub-Inspector on the basis of statements made to him by witnesses during the course of investigation and showing the place where the deceased was hit and also the places where the witnesses were at the time of the incidence would not be admissible in evidence in view of the provisions of S. 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of S. 162 of the Code of Criminal Procedure as it is no more than a statement made to the police during investigation.
48. Applying the same principle to the present case, even if the place where the dead body was discovered, the place from where the bloodstained soil was recovered, since these places were indicated by Mr, Kan Singh, as claimed by the prosecution, the said part of the site plan would be inadmissible in view of Section 162 Cr. P. C.
49. Even otherwise, the bloodstained soil was recovered after the dead body was removed. Therefore, there is no guarantee that the bloodstained soil was recovered form the place where the dead body was discovered or that the blood of the deceased was lifted. In such a scenario, it is difficult to believe the State FSL report (Ex. P. 204) and to conclude that the blood group of the deceased was, Indeed, 'A' blood group. The true blood group of the deceased remains in the realm of possibilities, in the realm of conjectures and surmises bordering on suspicion, But suspicion cannot take place of proof; convictions cannot be based on conjectures and surmises.
50. According to Ex.P,64, the police had recovered underwear, one blue colored T-shirt, one blue colored Jeans, and one brown colored bra-these were the clothes of the deceased. According to Ex.P.195, the said clothes were sent to the State FSL. However, vide Ex.P.200 a fax message was sent by the Superintendent of Police of CBI (Camp at Kota) addressed to the Director, FSL Rajasthan directing them not to carry out any examination on the packet, containing the clothes of the deceased, sent to it by the CBI. The Director was further requested to transfer the said packet to the Director, Central Forensic Science Laboratory at Delhi. According to Ex.P.202, the clothes worn by the deceased were not sent to the Central Forensic Science Laboratory. Instead, they were sent to the CCMB at Hyderabad for DNA examination. However, Interestingly, the result of the DNA examination or the report for the CCMB at Hyderabad was never produced before the trial Court. Thus, there is no clear cut evidence to prove that the deceased belonged to blood group 'A' as no report about her blood group as discovered on her clothes has been submitted by the CBI during trial. Surprisingly, Mr. Anil Kumar Ohari (P.W.62) in his cross-examination, claims that that he did not have any article through which he could have discovered the blood group of the deceased. This is the only explanation that he has given for not placing the report of CCMB Hyderabad with regard to the blood group of deceased. Considering the fact that the police had recovered the clothes of the deceased, considering the fact that the clothes were sent to the CCMB at Hyderabad for DNA testing and for testing the blood grouping, the explanation given by the Investigating Officer is, clearly, baseless. It was, indeed, duty of the prosecution to firmly establish ' the blood group of the deceased. In fact, the prosecution had sufficient articles to do so. Yet, it chose to withhold vital evidence from the court. Therefore, adverse inference should be read against the prosecution. Thus, this Court is not convinced that the blood group of the deceased was, Indeed, 'A' blood group.
51. In the absence of convincing and cogent evidence with regard to the blood group of the deceased, the mere presence of blood group 'A' on the clothes of the accused, and on the Rexene recovered from the roof of the car do not link A-1 to the alleged murder. Hence, the learned trial Court has erred in concluding that the blood group of deceased was 'A'. It has also erred in concluding that since blood group 'A' was found on the clothes of the accused and on the Rexene, therefore, there is sufficient linking evidence to connect A-1 to the alleged crime. Hence, according to us, lri fact, no linking evidence exists to connect the accused to the alleged murder.
52. While convicting A-1, the trial court has been swayed by the conflicting explanation given by the A-1 about the cause of the injuries sustained by him. According to the injury report of A-1 (Ex.P.105), he had suffered eight injuries on his body, which are as under:
1. One stitched wound over right side of face - 3 cm. long with extended margin.
2. Stitched wound, eyebrow 1.5 cm with contused margin.
3. Multiple pin-shaped abrasions over palm aspect of skull and left hand.
4. Multiple grazed abrasions over back of chest and abdomen.
5. Three abrasions over back of right forearm 4cm X 0.1cm, 3cm X 0.1 cm, and 2cm X 0.1 cm.
6. Abrasion, outer aspect of right wrist 2cm X 0.1 cm.
7. Abrasion, over outer aspect chest below frontal and 3cm X 2 cm.
8. Abrasion, over outer aspect of right knee 6cm X 6 cm.
53. According to Dr. Rajendra Prasad Sharma (P.W.I), when he asked A-1 as to how he had sustained the injuries, 'he said that, he does not remember how he sustained the injuries'. Furthermore, according to the said witness, A-2 told him that A-1 had sustained these injuries 'because he fell from scooter'. Moreover, in his statement under Section 313 Cr. P. C, A-1 stated that he sustained these injuries 'because he fell on the staircase in his house'. According to the learned trial court these contradictory explanations point to the guilt of the accused.
54. The learned trial court has misapplied the principles of criminal jurisprudence when it comes to reading this evidence. Firstly, the weakness of the defense does not strengthen the case of the prosecution. Merely, because defense has offered different explanations for the injuries of A-1, would not strengthen the case of the prosecution. The prosecution has to stand on its own two feet and prove its case beyond a reasonable doubt through cogent and convincing evidence. (Ref to Bhagirath v. State of Madhya Pradesh : 1976CriLJ706 ; State of U.P. v. Ram Swarup and Anr. : 1974CriLJ1035 ). Secondly, it is not the duty of the defense to explain the injuries caused to the accused. In fact, it is the vice versa: it is the duty of the prosecution to explain the injuries caused to the accused, However, in the present case the prosecution has failed to explain these injuries, except to plead at the Bar that these injuries were caused because of the scuffle between the accused and the deceased. However, there is not an iota of evidence to prove the alleged scuffle between the two. It has been argued by the prosecution that the photographs show disheveled hair of the deceased. But considering the fact that according to the prosecution, the Incident had occurred during the evening and the deceased was photographed in the night, the cause for the disheveled hair is unknown. Thus, the plea of scuffle taken by the prosecution before this Court is, again, based on surmises and conjectures. However, A-1 cannot be convicted on the basis of surmises and conjectures. Hence, in the present case, the prosecution has failed to give any cogent explanation about the injuries caused to A-1.
55. Of course, A-1 has not specifically pleaded in his statement under Section 313 Cr. P. C, that he had sustained these injuries due to the accident. But, nonetheless while cross-examining the witnesses he has suggested the defense that these injuries were caused because of the accident. Surprisingly, even the prosecution had produced seven witnesses namely Ram Lal (P.w.14), Amar Singh (P.W. 32), Ram Gopal (P.W. 33), Jagdish (P.W. 35), Sumer Singh (P.W. 39), Balji (P.W. 40) and Bhawar Lal (P.W. 41) who have probablized the defense story. All of these witnesses have clearly stated that they found A-1 in an injured state in the damaged car. According to them, the car was damaged in an accident. Thus, the probability that A-1 had sustained these injuries due to the accident is strengthened. Moreover, according to Bhawar Lal (P.W. 41), A-1 had told him that he was assaulted by three miscreants and had sustained the injuries. Thus, while the prosecution has failed to prove its case, the defense has raised sufficient doubt about the veracity of the prosecution case.
56. In the case of Ram Swarup and Another (supra) the Hon'ble Supreme Court has observed, that 'the Civil Law rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case it is open to a criminal court to find in favour of an accused on a plea not taken up by him, and by so doing the court does not invite the charge that it has made out a new case for the accused.' It further said, 'the respondent (the accused persons in that case) led no evidence to prove their defence but that is not necessarily because such proof can be offered by relying on the evidence led by the prosecution, the material elicited by crossexamining the prosecution witnesses and the totality of facts and circumstances emerging out of the evidence in the case'. ((Also refer to Pratap Misra (supra) and Lakhmi (supra)).
57. It is, indeed, 'axiomatic that burden on the accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability'. (Ref. to Lakhmi (supra)) Applying these principles to the present case, the defense, through cross-examining the prosecution witnesses, has succeeded in showing preponderance of probability in its favor that the injuries were received in an accident, or as a result of assault. It is also pertinent to note that in its defense the accused is not prevented from taking alternative defenses.
Thus, the alternative pleas of A-1 that the injuries were caused by the accident, or by assault can co-exist. These pleas probablized by cross-examinations of the seven witnesses torpedo the case of the prosecution.
58. The learned trial court has also been swayed by the injuries on the deceased. According to the Post-Mortem Report (Ex. P. 116), the deceased had suffered nine injuries on her body. Following injuries have been noted in the Post-Mortem Report (Ex. P. 116):
1. Abrasion 3/4' x 3/4' Right side of Occipital region of scalp.
2. Lacerated wound 1' x 1/4' x 1/2 vertical on right side of occipital region.
3. Abrasion 10'x 2' lat. Abrasion Right upper arm, from hand wrist.
4. Abrasion 3/4' x 1/2' Right elbow and Medial Ant.
5. Abrasion 6' x 3' vertical on Rt. back of chest scapula
6. Abrasion 4' x 2' vertical Rt. lumber region.
7. Abrasion 1' x 1' Rt. Iliac Fosa Lt. Region
8. Bruise 1' x 3/4' Trans medial Above to shoulder.
9. Lacerated wound 1' 1/8' x 1/8' Vertical on Rt. side chest.
59. According to the PMR, the deceased had also suffered postmortem burn injuries on her body.
60. The prosecution has claimed that the injuries on the deceased were in a scuffle with A-1. The prosecution has also pleaded that the injuries were caused by Pepsi bottle made of glass used by A-1 to hit the deceased. However, according to the three Investigating Officers, namely Mr. Satya Pal Singh (P. W. 56), Mr. Shiv Prasad Sharma (P. W. 59), Mr. Anil Ohri (P.W. 62), no Pepsi bottle was recovered from the scene of the crime. Merely, pieces of broken glasses of a Pepsi bottle were recovered. These pieces were sent for finger printing. However, no finger print report was ever submitted before the learned trial court. Thus, the weapon for committing the alleged murder was never recovered. Moreover, the prosecution has also failed to prove that A-1 had purchased the Pepsi bottle from any particular place. Most importantly, the prosecution has not explained as to how postmortem burned injuries were caused on the body of the deceased. These gapping holes in the armor of the prosecution story have weakened the prosecution case.
61. The Learned Counsel for the CBI has also argued that it was within the especial knowledge of A-1 as to how the deceased died. Therefore, under Section 106 of the Evidence Act it was for him to give an explanation about the said fact. Since he has failed to offer such an explanation, his silence should be read against him.
62. Section 106 Evidence Act states that, 'When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him'. While interpreting this provision, in the case of Shambhu Nath Mehra v. State of Ajmer : 1956CriLJ794 , His Lordship Vivian Bose J. had explained the legal position as thus: This lays down the general rule that in a criminal case the burden of proof Is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.
63. This interpretation has been followed consistently by the Hon'ble Supreme Court as is obvious from the cases of State of W.B. v. Mir Mohd. Omar : 2000CriLJ4047 and Sucha Singh v. State of Punjab : 2001CriLJ1734 .
64. The learned Counsel for the CBI has further argued that the prosecution has proven the fact that the deceased was last seen with A-1. Therefore, it is for A-1 to explain how she died. However, this argument is untenable. The burden of explana-tion would lie on A-1, if and only if, the prosecution were unable to state what trans-pired between the accused and the deceased after they were seen last together. Only in such a situation can the prosecution hope to invoke Section 106 of the Evidence Act. However, in the present case, the prosecution has vehemently argued that after A-1 and the deceased were last seen together, A-1 tried to sexually exploit the deceased, she resisted his physical overtures, a scuffle ensued between the two, the deceased walked out of the car, A-1 pursued her with a Pepsi bottle in his hand, assaulted her on the head with the said bottle, the deceased sustained two blunt injuries on her head, and she expired. When such vivid details are pleaded and argued by the prosecution, then it can not be said that what transpired after A-1 and the deceased were seen together was within 'the especial knowledge of the accused'. Hence, in these circumstances, A-1 cannot be asked to explain the circumstances under which the deceased expired. For, the said task has already been done by the prosecution.
65. Learned Counsel for the. CBI has also argued that the car did not meet with an accident, but was intentionally damaged. In order to establish the intentional damaging of the car, the learned Counsel has relied upon Mr. Shailendra Jha (P.W.9) and Mr. Abdul Rahman (P.W.24). Mr. Shailendra Jha had inspected both the place of accident and the damaged car. The place of accident was inspected on 27.05.1998 i.e. after five days later/According to his statement, he found that 'the scene of the crime was disturbed and it did not look like a simple case of an accident'. According to him 'the wall was four feet high and was broken from two places. However, it appeared that stones were removed'. After examining the scene of crime, he claimed that he had drawn up a Report (Ex. P. 1ll) about the place of the crime. He also examined the damaged car and had photographs taken by Mr. L.D. Ohja . These photographs were produced as Ex. P. 109, Ex. P. 110, and Ex. P. 114 before the learned trial court.
66. Mr. Abdul Rehman (P.W. 24) was posted as MTO in the Police. He was asked to carry out a mechanical examination of the Cello car involved in the alleged crime. He examined the car on 23-5- 98, at Nayapura Police Station. According to him, the car did not meet with an accident. Instead, it had been damaged intentionally. He had drawn up a Report (Ex. P. 146) about the damaged car.
67. Much has been made about the testimonies of these two witnesses, much has also been made about the photographs as the photographs have been shown repeatedly to the court. But admittedly, A-1 was confronted neither with the two reports (Ex. P. 1ll and Ex. P. 146), nor with the photographs (Ex. P. 109, Ex. P. 110, and Ex. P. 114) while recording his statement under Section 313 of Cr. P. C. It is trite to state that recording of statement under Section 313 Cr. P. C. is not merely a formality. The trial court is duty bound to place each and every incriminating piece of evidence before the accused and to seek his/her explanation. In case, the accused is not confronted with the piece of incriminating evidence, the same cannot be read against him/her. Therefore, neither the reports, mentioned above, nor the photographs mentioned above, can be read against A-1.
68. In the case of Rattan Singh v. State of Himanchal Pradesh : 1997CriLJ833 , the Hon'ble Supreme Court observed, ' Examination of the accused under Section 313 of the Code is not a mere formality. Answers given by the accused to the questions put to him during such examination have a practical utility for Criminal Courts. Apart from affording an opportunity to the delinquent to explain Incriminating circumstances against him, they would help the Court in appreciating the entire evidence adducted in the court during trial'.
69. Recently, in the case of Ajay Singh v. State of Maharashtra JT 2007 (8) 638 the Apex Court dealt with the scope and ambit of Section 313 Cr. P. C. Relying on the case of Hate Singh, Bhagat Singh v. State of Madhya Pradesh : AIR1953SC468 , the Hon'ble Supreme Court observed as under:
The statements of accused persons recorded under Section 313 of the Code are among the most important matters to be considered at the trial. It was pointed out that the statements of the accused recorded by the committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial....
The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if .such statement discharges the onus.
The word 'generally' in Sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he Was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.
70. In the present case, admittedly, A-1 was never asked about the reports, Ex. P. 111 and Ex. P. 146 prepared by Mr. Shailendra Jha (P. W. 9) and Mr. Abdul Rehman (P. W. 24), respectively, and about the photographs, Ex. P. 109, Ex. P. 110, Ex. 114, taken by Mr. L.D. Ohja. In fact, the prosecution did not produce Mr. L.D. Ohja as a witness to prove these photographs. Hence, these pieces of evidence cannot be read against A-1. Thus, the prosecution has failed to prove that the car was not involved in an accident, but was intentionally damaged.
71. Another glaring aspect of this case is that many 'pages' are missing from the prosecution story. The chain of circumstances is, thus, incomplete. The setting of the 'story' is garbled: the place of the alleged murder is unclear. Whether the deceased was killed in a hotel, as initially claimed by Mn Zile Singh and hinted at by Mr. Satya Pal, or not? Or was the deceased killed at the place where her body was discovered by Mr. Kan Singh, as claimed by the learned Counsel for the CBI? The number of assailants is also vague, as pointed out above. The motive for the alleged murder is missing. It is, indeed, trite to state that absence of motive in a case based on circumstantial evidence is a material aspect of the case. However, in the absence of any cogent evidence about sexual exploitation of the deceased, it is highly conjectural to believe that the motive of the crime was to take revenge for repulsion by the deceased to the alleged sexual overtures of A-1.
72. Moreover, material witnesses, like characters in a story, are conspicuously absent. Mr. Mukesh Solanki, who lodged the report with regard to the accident of the car, which is clear from statement of Mr. Heera Lal (Ex. D. 44) and Mr. Jaswant Singh (Ex. 0. 45) has not been examined as a witness. Similarly, Mr. Heera Lal and Mr. Jaswant Singh, both Head Constables, to whom Mr. Mukesh Solanki had reported the accident, have not been produced as witnesses. Similarly, Mr. L.D. Ojha, who had photographed the damaged car, has also not been examined as a witness. Moreover, Mr. Dayaram, who was the first one to point out the dead body of the deceased, has never been brought into the witness box.
73. Further, documentary evidence which would have strengthened the narration of the story is also missing. As pointed out above, although the clothes of the deceased were sent to CCMB at Hyderabad, but the report about the blood group and DNA testing of the deceased was withheld from the Court. This is obvious from the statement of Mr. Anil Ohri (P. W. 62), the Investigating Officer on behalf of the CBI, itself. Similarly, according to the prosecution, pieces of the glass window and broken pieces of Pepsi were picked up for finger printing purposes. However, the report of the finger printing expert is equally missing. Likewise, according to the prosecution, the lie detector test, the sputum test, and the DNA test of A-1 were carried out. Yet, the reports of these tests are nowhere to be found in the record of the case. According to Mr. Anil Ohri (P. W. 62), the DNA test report of A-1 was not produced in the court as it did not support the case of the prosecution. Thus, this Court has no other option but to draw adverse inference against the prosecution for not producing the reports.
74. Another large gap in the prosecution case is the absence of the weapon of alleged murder. According to the prosecution, the deceased was hit with a Pepsi bottle by A-1. However, as pointed out above, all the three Investigating Officers have admitted that no such Pepsi bottle was recovered during the course of investigation. Of course, pieces of broken Pepsi bottle were recovered, but as there is no finger print report, as no blood was found on these pieces, the recovery is irrelevant. Thus, except for the claim of the prosecution, there is nothing to prove that the deceased was hit with a Pepsi bottle made out of glass. Therefore, the conclusion drawn by the learned trial court that A-1 had hit the deceased with such a bottle, such a conclusion is purely conjectural in nature. Such a conclusion is not based on any cogent evidence. Hence, the conclusion is legally unsustainable,
75. Mr. Bajwa has vehemently argued about A-1 being a juvenile on the date of occurrence. According to Ex. D 48, the Transfer Certificate of A-1 issued by the John's Senior Secondary School, A- l's date of birth is shown as 28-7-1981. Mr. M. M.Alam (D.W. 1) proved the said document. Thus, according to the learned Counsel, on the date of the incident, A-1 was sixteen years and ten months old. Moreover, in his statement under 313 Cr. P. C, A-1 gave his age as nineteen years on the date when the said statement was recorded. He also stated his date of birth as 28-7-1981. On the date of judgment, the learned judge estimated A-1's age as being twenty years. Hence, on the date of the incident, A-1 would be between seventeen to eighteen years. But despite realizing that A-1 was a juvenile on the date of the incident, still the benefit of Section 20 of the Juvenile Justice Act, 2000 was not extended to him. Hence, his sentence and subsequent imprisonment in jail is illegal.
76. Mr. Saxena, the learned Counsel for the CBI, has contended that Ex. D. 48 is a Transfer Certificate which was issued on 9-9-98. Hence, it was issued after the date of incident. Thus, it is suspect. Moreover, Mr. M. M. Alam (D. W. 1) has clearly admitted that Ex. D. 48 is based on the certificate issued by Godship Academy School. He also admitted that he doesn't know the date of birth of A-1 as entered in the record of Godshlp Academy. Moreover, this witness produced neither the record of Jghn's Senior Secondary School, nor of Godshlp Academy. Thus, according to the learned Counsel, Ex. D. 48 cannot be relied upon for concluding that A-1 was juvenile on the date of the incident. Furthermore, according to the learned Counsel, A-1 filed an, application for permanent license (Ex. P. 154 A), wherein he showed his date of birth as 28-1-80. Moreover, the driving license of A-1 (Ex. P. 153 A) also shows his date of birth as 28-1-80. Hence, according to A-1 his date of birth is 28-1-80. Therefore, A-1 was major on 20-5-1998, the date of incident.
77. Mr. Bajwa has counter-argued that neither Ex.P.153-A, nor Ex.P.154-A, men-ionned above, was brought to the notice of A-1 while his statement under Section 313 Cr.P.C. Was recorded. Thus, the said documents cannot be read against the accused.
78. Admittedly, neither Ex. P. 153 A, nor Ex. P. 154 A was brought to the notice of A-1 while his statement under 313 Cr. P. C. was recorded. Hence, these documents cannot be read against him. For, before the said incriminating evidence can be read against him, A-1 should have been asked to explain the said documents. It is true that Mr. Alam did not bring any record of Godship Academy to the court. But there is nothing available in the record for doubting the authenticity of the Transfer Certificate (Ex. D. 48). It was not even suggested by the prosecution to Mr. Alam that the said document is fabricated or forged or incorrect. Hence, Ex. D. 48 would have to be accepted as showing the correct date of birth of A-1. Thus, A-1's date of birth is 28-7-81. Hence, he was a juvenile on the date of the alleged crime. Although he could be tried by a regular court, but under Section 20 of the Juvenile Justice Act, 2000 he should have been referred to the Juvenile Board for sentencing purpose. Since the learned trial court failed to follow the said procedure, the sentencing and consequent imprisonment is illegal.
79. It is, indeed, unfortunate that a young lady has lost her life under mysterious circumstances. For the parents, it is a traumatic experience; for the society, a dangerous signal. However, in the din of evidence and counter-evidence, in the cacophony, of emotions and logic, in the battle between the public perception of criminal cases and the rights of the accused, the court has to keep an even keel. The court has to be objective and detached in its assessment of the evidence. If two views of the evidence are possible, the one in favor of the accused is to be preferred. Convictions cannot be based on the feathers of surmises and conjectures, or on the flight of fantasy, It has to be grounded on cogent, clinching and convincing pieces of evidence. Thus, no matter how mind-boggling, despicable, and guttuming the alleged crime be, the court has to weigh the evidence on the scales of law and justice.
80. A holistic appreciation of evidence clearly proves that the prosecution has failed to establish its case beyond a reasonable doubt in case of A-1. The prosecution evidence is not only contradictory, but also suffers from missing links. Thus, the chain is incomplete. The circumstances pleaded by the prosecution are not firmly established through cogent and convincing evidence. At times, the circumstances remain in the realm of conjectures and surmises. Such half-baked truths are unpalatable to judicial taste. Therefore, appeal of A-1 is allowed. A-1 is, hereby, acquitted of charges under Sections 302, 363, 201, 120B read with 201 IPC. He shall be set at liberty, forthwith, if not wanted in any other criminal case.
81. Mr. A.K. Gupta, the learned Counsel for A-2, has raised various contentions before this Court. However, we need not enter into the controversy as the case against A-2 is squarely based on the case against A-1. The question of offences under Sections 119, 217, 201, 201 read with 120-B IPC against A-2 would arise only if the prosecution had succeeded in first establishing its case against A-1. Since prosecution has failed to prove its case against A-1, it has equally failed to prove its case against A-2. Hence, the appeal of A-2 is also allowed. A-2 is, hereby, acquitted of offences under Sections 119, 217, 201, 201 read with 120B IPC. Since he is already on bail, his bail bonds need not be forfeited.