Bhupender Singh v. State

11. Abrasion.[7] x.[4] cm over base and.palmer aspect ofright index finger. '

12. Read roadpattern abrasion aj 5 x 2 cm., b) 4.[5] x 1.[5] cm, c) 3x[2] cm. d) 5 x 5.[5] cm over left side back of lower chest parallel to each other and present, in steppingpattern. " i I

8 The dead body was identified by Joginder Singh-(PW-6), tine S;on I ofthe victim as also by her husband PW-4 and was handed over to p\N- 4 vide memo Ex.PW-4/B.:

9 On 22.06.1999, PW-4 had handed overthe list of missing articjles which had been robbed from his house vide memo Ex.PW-4/C. This list i reads herein as under "7. Some cashamounting to Rs. 2,25,000(Two Lacs tM'enty five thousand) consisl\ing ofnotes ofDenom-inationofRs 500, Rs 100 and Rs-. 50. \ Cii. Appeals Mo. 408/2007 & 1005/2008 Page 4of28 \ • !• V

2. Some Silver coins and silver ring number unknown. Silver coin having "HAPPY BIRTHDAY" Gursift Kaur 8-3-99 with best compliments from. S. Jaswant Sir, Jimeja's "print on them and silver ring having "H.B.K" printed on it.

10 On 05.09.1999, PW-4 had expressed a suspicion qua the rolejof Bhupender in this crime. Pursuant thereto on 22.09.1999 a notice uncler Section 160 of the Cr.PC had been issued to Bhupender vide Ex.piv- 18/T. Bhupender confessed his complicity in the crime as also detailed the role of his co-accomplices Drojan and Dinesh. i

11 Bhupender was arrested on the same day i.e. 22.09.1999 vjde j memo Ex.PW-18/P. Time of arrest was 08:00 pm. His disclosijire statement Ex.PW-ll/A was recorded. On 27.09.1999 he led the pol ce party to his residence on the first floor of his house No. 9/62, Gali NO. 10-A, Braham Puri, Delhi from where from under the dewan of his ijed room, he got recovered a yellow coloured plastic bag which contained Rs.15,000/- and a silver coin upon which the words 'HAPPY BIRTHDAY GURUSIFT 08.03.1999 WITH BEST COMPLlMENlrS FROM JASWANT SINGH JUNEJA" were inscribed. The cash amount gh nd comprised of ten notes of Rs.500/- each, 80 notes of Rs.lOO/- each a CrI. Appeals No. 408/2007 & 1005/2008 Paae 5 of 28 \\t 40 notes of Rs.50/- each were exhibited in the Court as Ex.P-7; the silver coin was proved as Ex.P-8. These articles had been seized v de memo Ex.PW-4/E. Aperusal of Ex.PW-4/E shows that it has b^en attested by constable Ram Sanehi (PW-3), PW-4, the complainant a'nd I I constable Ashok Kumar (PW-15). ' I 12 On the same day accused Drojan had also been arrested vide. ! i arrest memo Ex.PW-18/R. Hiis disclosure statement Ex.PW-11/D 4as I recorded. O'n 24.09.1999 he had led the police party to the ground of lis rented property bearing No. 9/62, Gali No. 10-A, Braham Puri, Delhi from where in a polythene bag from under the taand, he got recoveji Rs.10,000/- and a silver coin upon which 'HBK' had been inscribted. Thesearticles were seized vidememo Ex.PW-4/D. A perusal of Ex.PW- 4/D shows that it has been attested by PW-4, the complainant, constajDle Lai Chand (PW-11) and constable Ashok Kumar (PW-15).

13 The Finger Print Bureau vide its report dated 06.01.2000 liad j opined that chance print Ex.Q-l (lifted from the tape recorder) Was identical with the left middle fmger (Ex.S-1) i.e. finger impression] of I accused Bhupender. i Cii. Appeals Mo. 408/2007 & 1005/2008 Page 6 ol'28 \Vil 14 PW-4 in his supplementary statement while recording his suspicion against Bhupender had informed the Investigating Officer the reasons for suspecting Bhupender; i.e. Bhupender being an ex-emplo|yee I I of PW-4 had left the job because PW-4 had reftised to give him an advance of Rs.50,000/- Vt^hich he had asked on the occasion of^he ] marriage ofhis sister; this had annoyed Bhupender who had left the job for this reason and because ofthis grudge which he was nursing aga" PW-4, he had become a suspect in the eyes of PW-4 and responsible for the murder of his wife.

16 In the statement of the accused persons recorded under Seel I 313 of the Cr.PC, they have both pleaded innocence; they have den|ied their involvement in the crime. Accused Bhupender has admitted ihatj he was an employee of PW-4 but his explanation is that he had gonq' to PW-4 to ask for arrears ofhis salary which had been denied to him and that is why, he had left the Job. He is innocent. Innocence was ajlso claimed by accused Drojan.: Cii. Appeals Mo. 408/2007 &1005/2008 7o.|--28 nst vas • ion d): v\,17 In defence one witness has come into the witness box; shi is Beena (DW-1), the landlady of house No. 9/62, Gali No. 10-A, Braham Puri, Delhi. She has deposed that police has come to her house on 22.09.1999 when they, had taken Bhupender with them stating that his fmger prints were to be taken. She denied the suggestion that she is the "moohboli maa" of Bhupender.

18 Arguments have been addressed at length. On behalf of the appellant Bhupender arguments had been addressed by Mr. Ajay Verjna, Advocate. Written submissions have also been filed. Arguments qua coaccused Drojan had been addressed by Mr.C.M. Sharma, Advocate.IHe has also filed his written submissions. Learned counsels for accused submit that this is admittedly a case of circumstantial evidence ^nd unless and until all the links in the chain of circumstances stind complete, a conviction cannot be founded.

19 Qua Bhupender, it is pleaded that the report of Finger Prmt Bureau cannot be relied upon as admittedly these fmger impressions lad been taken without permission ofthe Court and thus it is hit by bar of Section 5 of the Identification of Prisoners Act, 1920. Pertinent at his Cii. Appeals No. 408/2007 &1005/2008 Page 8of28 -> stage it would be to- state that this had become the bone of contention in the course of arguments addressed before an earlier Bench who had ^/ide its order dated 06.04.2011 in view of the conflicting views given by the two Division Benches of this Court referred the matter to the la-ger Bench. The question framed was as under:- | I ''Whether the samplefingerprintsgiven by the accused during investigction under Section 4 of the Identification ofPrisoners Act. 1920 without permission of the Magistrate under Section 5 ofthe Evidence Act willbe admissible or not". i

20 The reference was answered by the Full Bench on 30.11.201. It had noted that these sample finger impressions/palm impressions taken in the course of investigation by the police personnel even without the permission of the Magistrate would not be hit by Section 5 of the ?aid Act.

21 It had noted that the view taken by the learned Single.Judge of this Court in Sunil Kumar @ Sonu Vs. State of NCT of Delhi. Appeal No. 446/2005 decided on25.03.2010 was the correct view.

22 The appeal against the order of the Full Bench has also been dismissed by the Apex Court. Thus the finger impressions obtainec of I • j accused Bhupender and accused Drojan in the course of investigation, Cii. Appeals No. 408/2007 &1005/2008 page 9of28 rl. even without resorting to permission from the Magistrate were no an illegahty.

23 Learned counsel has however assailed the report of the Fiijger Print Bureau on various other grounds. Submission being that there are i conflicting versions of PW-9, PW-15 and PW-18 on the date whenjthe sample finger impressions were taken; the hivestigating Officer Pw|-18 j had categorically reiterated that the finger impressions had been take^i of Bhupender on 23.08.1999 but thereafter on a subsequent date on oath in Court he has taken a stand that the finger impressions had been taken of I Bhupender one week prior to 23.08.1999. There is no explanationjfor this irreconcilability in the dates. This report also reflects that it was on I 25.08.1999 that the finger impressions had been forwarded to the T'SL which is again contrary to the version ofPW-15 who had stated that[the finger impressions had been taken by him to the FSL on 23.08.1999. No j reliance can be placed upon such a factual incorrect version. Attention has been drawn to the testimony of DW-1. It is pointed out that jthe witnesses ofthe prosecution and the defence witnesses have to be giyen the same weightage and the version of DW-1 stating that finlger Cii. Appeals No. 408/2007 &1005/2008 Page 10 of28 impressions of Bhupender had been obtained in September, 1999 cannot be brushed aside. Recovery is also tainted as admittedly the recovery I having been effected from a public place and there being no evidencls as to why no independent witness had been joined in the recovery, jt is unreliable. It would be difficult to conceive that the incident ha\ ing i occurred three months prior to the date ofthe recovery i.e. the inciqlent v/hich is of Jyne, 1999 and the recovery having been effected' in September, 1999 and the cash amount would have been retained by the accused persons as also the items as allegedly recovered ii-om the accused persons and which even otherwise have no material value. is I pointed out that the inscribed coin of 'HAPPY BIRTHDAY GURUSjFT I 08.03.1999 WITH BEST COMPLIMENTS FROM JASWANT SIN^H JUNEJA' could have been given by PW-4 on the birthday of |his j granddaughter to all his guests and Bhupender being an old emploi/ee having worked with PW-4 for more than ten years and being on g(i)od I terms as in March, 1999, there was every possibility that this coin had been gifted to him by PW-4. Learned counsel for accused Bhupender however fairly submits that this was not adefence taken by him hefpre the trial Court but even presuming that this stand was not, yet Ijhis CrI. Appeals No. 408/2007 &1005/2008 p^igg 11 23! argument of the appellant even at this stage cannot be ignqred. Recoveries having been effected from open places are on all cojunts suspicious; they necessarily have to be discarded. No motive has also been alleged. There is no evidence whatsoever with.the prosecution to I nail the accused. They both are entitled to a benefit of doubt aijid a consequent acquittal. i i

24 Arguments had been refuted by the learned public prosecutor, jit is submitted that although there is discrepancy in the dates given quai the sample finger impressions which were obtained of Bhupender but PW- 18 had come into the witness box to clarify that he had taken tljiese sample impressions one week prior to 23.08.1999. In no manner can it be said that this evidence is tainted. Recoveries also stand proved an(i so also the motive which is evident from the version of PVV-4. irhe impugned judgment does not call for any interference. i

25 We have perused the record and heard the submissions advaii^ted by the learned counsel for the appellants as also the learned public prosecutor. Cii. Appeals No. 408/2007 &1005/2008 p^ge u of28

28 There are two appellants in this case. Record shows thai: a i I gruesome murder of Harbhajan Kaur had been committed in the da}] of j 16.06.1999 at her residence i.e. House No. 339, Parmanand Coloiliy, Delhi. The husband of the victim PW-4 had gone for his duty at lOtOO I am and returned back at about 09:30 pm. On his return, he saw his vjife i lying in a pool of blood; the house was ransacked and their belongihgs i had been scattered all over the room; blood v/as lying at various plades. I The victim was removed to the hospital where she was declared broad j dead. This is evident from her MLC (Ex.PW-8/A) recorded at 11:00 pm.

29 Crime team was summoned atthe spot. The photographs evide^ice the scene of crime. Exhibits were lifted from the spot which included i four chance prints; the print in question (Ql) was lifted from the tlipe recorder which was positioned at point 'D' in the site plan ofthe hoj.ise - I (Ex.PW-18/B) which was the lobby of the house. This tape recorider (Ex.P-1) was seized but it was not sealed.

30 The post mortem on the dead body had opined cause of death! as due to asphyxia consequent to mechanical airway obstruction (smothering) Crl. Appeals No. 408/2007 &1005/2008 ' Page 14 of28i I 31 Six days later i.e. 22.06.1999 PW-4 had handed over a listj of I missing articles to the Investigating Officer (PW-18). This hst has bpn proved as Ex.PW-4/C (details noted supra). Apart from an amount of I Rs.2,25,000/-, some gold jewellery (details not given), a silver coin and a silver ring were alleged to have been stolen. The silver coin vyas marked 'HAPPY BIRTHDAY GURUSIFT 08.03.1999 WITH BEST COMPLIMENTS FROM JASWANT SINGH JUNEJA'. The silver ijing was alleged to have a mark of 'HBK' inscribed upon it. |

32 There are three circumstances which appear against accuised I Bhupender. The first circumstance is the report ofthe finger print ex]|ert dated 06.01.2000 which had opined that chance print (Q-1) M'as identj-cal with the left middle finger (S-1) i.e. finger impression of accuked Bhupender. The second circumstance was the recovery of certain items connecting Bhupender with the crime. Another circumstance was the motive qua therole ofBhupender. ' | i

33 The report of an expert is a valuable piece of evidence under Section 45 of the Evidence Act. It is a relevant fact. However, ihe relevancy of each fact has to be tested on the touch stone of |i;he Cii. Appeals No. 408/2007 &1005/2008 Page 15 ofzsj particular case. The relevant witnesses,to answer this circumstance are PW-9, PW-15 and PW-18. t 34 PW-9 had lifted four chance prints from scene of crime |on 16.06.1999. Two had been lifted from a tape recorder (Q-1 andQ42). I This tape recorder was lying at point 'D' as depicted in the site pljant (Ex.PW-18/B) lying in the lobby of the house. This report is Ex.PW- 9/A. On 17.06.1999 vide Ex.PW-9/B PW-9 had sent arequest lettej to the investigating officer requesting him to send figure and pcjJm i impression of inmates and other suspected persons for purposes! of I comparison. ! I 35 PW-15 had deposed that on 23.08.1999 he taken finger prints' of 11 suspects/inmates to the Finger Print Bureau at Malviya Nagar. Tjhis was under the instructions of the Investigating Officer (PW-18). • ! Amongst the list ofsuspects, the name of accused Bhupender had dlso figured. In his cross-examioation, he admitted that these finger prilnts had not been taken by him and had been deposited by him with |!the Bureau under the instructions from the Investigating Officer;,the departure entry to this effect was DD No. 34-B. i I Cii. Appeals No. 408/2007 &1005/2008 Page 16 of28; f / \ 36 PW-18 in this context deposed that on 23.08.1999, he had tal finger prints of,siispects and inmates which were sent to the CFSL comparison. In his cross-examination, he reiterated that it was 23.08.1999 that he had sent the chance prints to the CFSL. He admit that he had taken finger prints of accused Bhupender in the police station along with other suspects. He had not taken the permission of tiie Court before taking these finger impressions. He reiterated that thfese finger impressions had been sent to the CFSL on 23.08.1999 through PW-15. This witness was recalled again for a clarification and / 14.9.2005 which is his second deposition he clarified that the fin print impressions of Bhupender were taken one week prior 23.08.1999 i.e. between 16.08.1999 to 23.08.1999. ^ | 37 The documentary evidence in this regard is relevant. ReclDrd shows that on 19.08.1999, a letter had been addressed by Avinash Trivedi (PW-17) SHO, PS Mukheijee Nagar to the Director FSL; •, ten for on:ed on ^er to CrI. Appeals No. 408/2007 &1005/2008 Page 17 oF28 "To The Director FPB, Delhi Police Police Complex PTS Malviya Nagar Delhi \^7 Sub: Regarding matchingofspecimen Finger Prints in the above mentioned case Sir, • This is in response to a letter No.l957/FP8/N. Delhi dt. 09/08/99. In this regard ^it is submitted that asper the directions ofthe crime team, the specimen Finger Prints of suspects and inmates have been taken and are being sent through Ct.Astiok N0.2O37/HW. These specimenfingerprints may please he compared with the redprd and opinion may befurnishedat the earliest. ! Submitted,please. Sd ! SHO/Mukherjee Nagar Delhi I J 9.8.99" I

38 This letter reflects that the finger impressions of the suspejcts including Bhupender had been taken on 19.08.1999 and were spnt through PW-15 to the FSL on 23.08.1999. The report ofthe Finger Print of Bureau (06.01.2000) states that the specimen finger/palm prints slip ^ the suspects had been received from Police Station Mukherjee Nagar the Bureau on 25.08.1999. This date of 25.8.1999 is irreconcilable vv the oral versions of PW-15 and PW-18 who had both stated that fhe Cii. Appeals Mo. 408/2007 &1005/2008 Page 18 of28 in ith \ j i finger impressions of the suspects had been sent on 23.8.1999.j A I suspicion had been created in the mind ofthetrial Court who had souight ! a clarification. This was not qua the dates 23.08.1999 and 25.08.1<)99 I alone but also because of the aforenoted letter dated 19.08.1999. Tjhis letter sent by PW-17 dated 19.08.1999 to the Finger Print Bureau ^lad ] clearly recited that the specimen finger impressions ofthe suspects |iad already been taken meaning thereby that they had not been takenion 23.08.1999 but prior to 19.08.1999. hi his clarification PW-18 Ipad reversed his stand; he had stated that these 'finger impressions i of -o " ' 1 Bhupender were taken one week prior to 23.08.1999. No case diar}^' or other documents had been produced in support of this clarification. This incriminating circumstance when put to Bhupender, in answer, it vVas stated that his finger impressions were taken only in September, 19p[9]. This explanation of Bhupender was substantiated by his defence when he examined DW-1, the landlady of the house where Bhupender vyas residing, who had on oath stated that it was sometime in Septemljer, 1999 that the police had come to their house and taken Bhupender stating that his finger impressions had to be obtained. CrI. Appeals No. 408/2007 &1005/2008 Page 19 of28j 39 In AIR 1981 SC 911 Dudh Nath Pandev Vs. State of ?7.P.Jthe Supreme Court had noted that the evidence tendered by the defejnce j^itnesses cannot always be termed 'tainted' by reason of the fact ihat the witnesses were being examined by the defence; defence witnesses i I are entitled to equal respect and treatment as that of the prosecutjon; they cannot be differentiated and treated differently from |the prosecution witnesses.

40 That apart the incriminating circumstance i.e. the report of^the FSL (dated 06.01.2000) had even otherwise not been put as; an incriminating circumstance to Bhupender. This is clear from jthe questionnaire forwarded to Bhupender in his statement under Secljion 313Cr.P.C.:

41 Law is well settled on this issue. A circumstance which is incriminating but which has not been put to the accused cannot be rfead against him. Italso cannot be said that no prejudice had been suffered by the accused in not putting this circumstance to him and especially'when the defence ofthe accused is that his finger impressions were only taljcen in September, 1999 whereas what has been examined and had been CrI. Appeals No. 408/2007 &1005/2008 Paae 20 of28 A' subject matter of the report of the FSL were the sample finger/pahn mipressions allegedly taken of Bhupender in August, 1999.

42 In AIR 1984 SC 1662 Mohmed Inavotiillah Vs. State \ of Maharashtra, the Apex Court had noted that wherein an incriminating circumstance against the accused not put to the accused in |his examination under this Section, such a circumstance has to be exclu([led from consideration in the trial. ' I

43 Not only is oral testimony ofPW-9, PW-l 5 and PW-18 in conf)ict with one ari^^ther but the documentary evidence which is writ large is in contrast to these ocular versions. Even presuming that the witnesses'by lapse of memory have not been able to give correct dates, the dates given inthe aforenoted documents cannot beignored. i

44 In this scenario, the submission of the learned defence couhsel that whether the finger prints were at all taken of Bhupender or iiot become questionable. This is also relevant in view if the fact that PW-4 i I i had for the first time raised a suspicion upon Bhupender only |on 05.09.1999. Moreover this report also not having been put to Bhupender Cii. Appeals No. 408/2007 &1005/2008 Page 21 of28 A' as an incriminating circumstance against him; this circumstance jias I I ] necessaril}'to be ignored. I 45 The next circumstance alleged against accused Bhupender is the recoveries which were purported to have been effected from under the dewan of his room. This recovery was effected on 27.09.1999. l^i^is disclosure statement (Ex.PW-ll/A) was recorded on 22.09.1999. in tihis disclosure statement he had disclosed that he could get recovered parl^: of the cash amount and a silver coin upon w'liich the words 'HAPPY BIRTHDAY GURUSIFT 08.03.1999 WITH BEST COMPLIMENTS FROM JASWANT SINGH JQNEJA' were inscribed. Recovery vj'as effected from a dewan in the bedroom of his l" floor residence at 9/1)2, Gali No. 10-A, Brahampuri, Delhi. The articles were seized vide memo Ex.PW-4/E. ! i I

46 This memo was attested by PW-3, PW-4 and PW-15 of whom PW-3 and PW-15 were the police witnesses and PW-4 was tihe complainant. PW-3 in his examination in chief did not whisper awqrd about any recovery of 27.09.1999. He was permitted to be crois- I I examined by the learned public prosecutor wherein at that stage, he h[ad Cii. AppealsNo. 408/2007& 1005/2008 p^gg22 oFlS '' L- / V Stated that on 27.09.1999, the recover)' was effected in the mannei} as I I naiTated in Ex.PW-4/E. PW-4 stated that he was called in. the Po ice Station on 24.09.1999; he identified Bhupender; he accompanied with the police officials had gone to the house of the accused for mal<ling recovery. Admittedly no recovery was effected on that day. Recovery was effected on 27.09.1999. PW-15 also reiterated that on 24.09.1^99 he had gone to the house of Bhupender for recovery but no recovery lad been effected on that date; recovery had been effected only ' on 27.09.1999. i

47 The disclosure statement of accused Bhupender was recorded| on 22.09.1999. Attempt for recovery was made on 24.09.1999. This is clear from the versions of PW-4 and PW-15. Recovery however failed on that date. Recovery was effected only on 27.09.1999.;

48 Section 27 of the Indian Evidence Act lifts the partial ban which has been imposed upon confessions being recorded in police custody. It is only so much ofthe information which leads to a discovery ofa fact which is permitted to be read against the accused. The rest of |the confession made by him has to be ignored. This Section is in the nature Cii. Appeals No. 408/2007 &1005/2008 Pas,e 23 of28 of an exception to the preceding provisions i.e. Sections 25 &. 26. The first condition necessary for brining this Section in to operation is'the discovery of fact i.e. a relevant fact in consequence of the infonna:ion received from a person accused of an ofTence. The words "distinctly,^nd "to the fact thereby discovered" are the linchpin of this provision. This phrase refers to that part of the information supplied by the accused which isthedirect and immediate cause ofthe discovery. I

49 Disclosure statement of Bhupender had been recorded on 22.09.1999. The evidence of PW-4 and PW-15 discloses that | no recovery was effected on 24.09.1999 pursuant to the disclosjure statement recorded on 22.09.1999. It is not the version of ^the prosecution that any supplementary disclosure statement was recorded. I In the absence ofany such evidence on record, the recovery effected^ on 27.09.1999 does not fall within the parameters of Section 27 of ithe Evidence Act. '

50 In 2007 (2) JCC 1617 Mahadev Prasad Pant Vs. Stale ofDklhi ^^l^ere the recovery was effected 5-6 days after the arrest of the accuged, doubt about such a recovery had been created. In the present case as Cii. Appeals No. 408/2007 &1005/2008 Page 24 oF28 well no cogent explanation has been furnished for the recovery having been effected after such along lapse i.e. after five days of the disclojure statement. Recovery is also admittedly in the afternoon and public witnesses had not beenjoined. The coin (Ex.P-8) is also not a valu£:ble item. j

51 The currency notes had no special distinction marks, ^le submission of the learned defence counsel that the silver coin with the inscription 'HAPPY BIRTHDAYGURUSIFT 08.03.1999 WITH BEST I to COMPLIMENTS FROM JASWANT SINGH JUNEJA' was giver Bhupender as admittedly he was an old employee of PW-4 and it was I given to him on the occasion ofthe birthday of the granddaughtei" of I PW-4 which was in March, 1999; the case ofthe prosecution being that Bhupender had left the service ofPW-4 only sometime in April, ]999|. I

53 The only other circumstance against accused Bhupender is the motive for him to have committed the crime; motive being that he liad asked for an advance ofRs.50,000/- ft-om PW-4 but not having got ^hat CrI. Appeals No. 408/2007 &1005/2008 -page 25 of28 u advance, he left his 10 years old job and this grievance wcis probablyithe reason for his having committed offence.

54 This motive has been alleged in the testimony of PW-4. Perusal of this version shows that the incident had occurred on 16.06.1999; PW-4 ' ^ i never had any suspicion upon accused Bhupender up to 05.09.1999 and itwas only then that he thought that Bhupender may be a suspect. In; his cross-examination, he admitted that although he had disclosed;his suspicion to the police on 05.09.1999 but the police did not take kny action against him for the next 10 days. Bhupender in his statenijent under Section 313 of the Cr.PC admitted that he was an employee of PW-4 but his explanation being that he had gone to PW-4 for:his j previous dues which were not given which was reason for his leaying i thejob; he has been falsely implicated.

55 The motive projected even otherwise appears to be weak. Eyen piesuming that this was amotive, this single circumstance ofmotive by itselfwould not be sufficient to find aconviction,against-the accused.! f I

56 Prosecution has not been able to establish its Ccise against accuked Bhupender. Or!. Appeals No. 408/2007 &1005/2008 Pa^e 26 of2^ J 57 Qua accused Drojan, the evidence is still little. Against him, the prosecution has pitched the circumstance of recovery alone. This id the recovery of silver coin which has been made pursuant to his disclo, statement (Ex.PW-ll/B) recorded on 24.09.1999. This recovery effected on 24.09.1999. The recovery memo has beert proved as Ex.PW- 4/D. It is attested by PW-4, PW-11 and PW-15. I I

58 In cross-examination, PW-4 has stated that they took about 3()-40 minutes in making the recovery from the house ofaccused Drojan which.was around 01:00 pm in the afternoon. PW-11 admitted that no public person had joined the recovery. PW-15 has mentioned the time as 0i:30 I pm. 1

59 This IS the only single circumstance pitched against Dro Recovery Avas admittedly effected three months aftei- the incident. It fiom the taand of the residence of the ground floor of his hoi Currency notes have no special marks; such notes are easily availa The silver metal/ring having mark of 'HBK' was also an ordinary r of little value; the incident having occurred three months ago, A^hy Diojan would have still hidden this ring in apoly bag under the taanc of Cii. Appeals No. 408/2007 &1005/2008 p^gg 27 of28 sure was an. vas I ise.:)le. ing r \ his house is difficult, to perceive. There were several public per5i,ons available in the afternoon and the area was well populated; admittedly no public witness has also been joined.

62 Accordingly, the appeals of both the persons are alloM^d. Appellant Bhupender is in judicial custody; he be released forthwith. Appellant^.Drojan is on bail. His bail bonds are cancelled; surety stands discharged.