Indrawati v. State

16. Learned Counsel for the Appellant further contended that the testimonies of prosecution witnesses adduced during trial establishes that all the accused-Respondents were involved in the commission of the crime and they hatched a criminal conspiracy to kidnap the deceased for ransom and thereafter eliminate him in order to avoid any criminal prosecution against them.

17. Lastly, the learned counsel argued that in view of the testimonies and other evidence on record all the four accused- respondents deserved to be punished and the impugned Judgment is liable to be set aside.

18. In Crl. A. 1223/2019, Mr. H.K. Chaturvedi and Mr. Sagar Chaturvedi appeared for Respondent No. 2 (Satinder), Mr. Ashutosh Thakur and Mr. Heyshiv Parashar appeared for Respondent No. 3 (Vikas), Mr. H

19. Learned Counsel for the Respondents, strongly refuted the submissions made by the counsels of the appellant and submitted that the impugned judgments are based on proper appreciation of the facts and evidence, no interference in the impugned judgments is called for by this Court; they stated that the Trial Court had perused the evidence and found that there existed contradictions in the testimonies of Prosecution Witnesses which had created reasonable doubt with regarding the guilt of the Respondents.

20. Learned Counsel for the Respondents further argued that the last seen theory was unreliable as there were contradictions in the testimonies of prosecution witnesses namely Indrawati, Pramod and Vijay Singh who claimed to have last seen the deceased with the Respondent No.4 (Vinod). They further submitted that the name of Respondent No. 4 (Vinod) was not mentioned in the initial information given to the police and therefore making him a suspect was an after thought.

21. Learned Counsel for the Respondents further contended that the knife recovered from Respondent No. 2 (Satinder) was different from the one sent to the CFSL. He submitted that the knife recovered from Respondent No. 2 was a buttondar knife whereas the sketch prepared by the CFSL doctor was not of a buttondar knife. He further submitted that there was a variation in description of the knife in the seizure memo and the sketch prepared by the CFSL expert.

22. We have heard the learned counsel for the parties and have also perused the material placed on record including the record of the trial court.

23. At the outset, it is relevant to point out that in the present case, the trial court record was not traceable and pursuant to the order of the predecessor bench of this Court the Trial Court record was recreated. CRL.A. 1223/2019 INCEPTION OF THE CASE

24. Putting the facts in the present case, we find that, the police machinery was set into motion when on 24.02.2004 the maternal uncle of deceased (Pradeep) lodged a complaint at about 1:45 AM stating that the deceased (Pradeep) had left the house on 23.02.2004 at 4:00 pm and was not traceable. DD No. 31 B (Ex. PW11/A) was recorded based on which a case under Sections 363 and 365 IPC was registered and FIR was lodged. The contents of the true English translation of DD No. 31B have been reproduced as under:- “D.D. No. 31B dated 24-2-2004 P.S. Badarpur, New Delhi, Pramod Kumar C/o Manohar Lal S/o Kundan Lal R/o D-38/2, Gali No. 4, Mohan Baba Nagar, Badarpur, New Delhi Ph. 26995229, information of missing of boy aged 13-14 years time at 1:45 P.M., it is recorded that at this time the complainant came to the P.S. and gave statement that Pradeep Kumar S/o Manohar Lal R/o 38/2, Gali No. 4, Mohan Baba Nagar, Badarpur aged 14 years, fair complexion, 4 feet 6 inches tall wearing slippers and orange T-Shirt, Green Colour Pant, Sweater with blue and white flowers with an injury mark in the ankle who had on 23-2-2004 at about 4:00 P.M. gone out of the house and who has till now not returned back was searched at many places and whose whereabouts are not known till now despite search. Sd/ - Pramod Kumar Sd/- (in Hindi), which information was recorded in the daily diary and information was given on No. 100. A copy of complaint given to the complainant and one copy was given to ASI Randhir. Sir, Duty Officer, P.S. Badarpur, New Delhi, it is requested that one Pramod Kumar S/o Manohar Lal R/o D-38/2, Gali No. 4, Mohan Baba Nagar, Badarpur New Delhi today came to the P.S. and gave information regarding the missing of his relative Kumar S/o Manohar vide DD No. 31B who has not been found till now. From the circumstances and the DD Entry it appears that the said boy has been kidnapped by someone therefore, a case U/S 363, 365 IPC is registered and the investigation is handed over to I ASI. Date and Time of Occurrence is 23-2-2004 at 4:00 P.M., Place of Occurrence is D-38/2, Gali No. 4, Mohan Baba Nagar, Badarpur, New Delhi, Time of giving report is 24-2-2005 at 5:45 P.M. Randhir Singh ASI, P.S. Badarpur No. 2793 at 24-2-2004. Police action: - Upon the receipt of the report Case NO. 134/04 U/S 363/365 IPC is registered. The documents shall be sent to the senior police officials by post.”

25. Subsequent thereto on 24.02.2004, PW-2 (SI Ajay Kumar), IC Mobile Crime Team, North District on receipt of information from the Police Control Room, that a dead body of a child was lying in Bandarwala Park, Sarai Rohilla, inspected the site and prepared a report (Ex. PW 2/A). A call was made from PCR to P.S. Badarpur and DD No. 10A (Ex. PW 4/A) was recorded by PW-4 (ASI Kushwant Kaur).

26. The testimony of PW-4 (ASI Khuswant Kaur) who proves the said DD No. 10A is reproduced below:- “On 24.02.2004, I was posted as ASI in PS Sarai Rohilla and working as DO from 9 AM to 12 Noon and at about 10.40 AM, I recorded DD No. 10A on the basis of the information of the PCR. After recording the DD, the true copy was handed over to SI Prabhat for further investigation and Ct.Sukhbir was also directed to accompany the SI to spot. I have brought the original DD register and the true copy of the same is Ex.PW-4/A.”

27. The body was sent to the mortuary, Subzi Mandi after which PW-13 (SI Ravi Shankar) went to the house of the Complainant. From there, PW-13 (SI Ravi Shankar) along with the maternal uncles of the deceased PW-8 (Pramod) and PW-9 (Vijay Singh) went to the mortuary where they identified the body of the deceased child.

28. Subsequent thereto, the statement of the mother of the deceased, PW-7 (Indrawati) and the maternal uncles of the deceased, PW-8 (Pramod) and PW-9 (Vijay Singh) were recorded under section 161 Cr.PC by PW-13 (SI Ravi Shankar). Section 302 IPC was added in the FIR 134/2014 and investigation of the case was taken over by R.S. Dahiya, Investigating Officer.

RESPONDENT NO. 4 (VINOD)

WAS LAST SEEN WITH THE DECEASED.

29. Since the present case is based on circumstantial evidence; it is essential for us to determine whether or not a complete chain of events stand established from the evidence produced by the prosecution. What, therefore, needs to be seen is whether the prosecution has established the incriminating circumstances upon which it places reliance and whether those circumstances constitute a chain so complete as not to leave any reasonable ground for the appellant to be found innocent.

30. During the course of argument, learned counsel for the Appellant argued that the deceased was last seen with Respondent No. 4 (Vinod) after which he got kidnapped and was later killed. He stated that the same had been corroborated with testimonies of PW-7 (Indrawati), PW-8 (Pramod) and PW-9 (Vijay Singh), however, the Learned Trial Court misconstrued the minor inconsistencies in their testimonies as major contradictions and ruled them out while deciding the impugned judgment.

31. Learned Counsel for the Respondent, vociferously rebutted the contentions made by the Counsel for the Appellants and submitted that the learned Trial Judge had rightly held that there were major contradictions in the testimonies of PW-7 (Indrawati), PW-8 (Pramod) and PW-9 (Vijay Singh) and they should therefore be ruled out.

32. The last seen theory is required to be proved by established facts before the same can be actually weighed for the purpose of its relevance for ascertaining the guilt of the accused persons. ‘Last seen together’ can only be treated as an additional link in the chain of circumstances because the prosecution has to establish an unbroken chain of circumstances, which leads to only one conclusion, which is the guilt and culpability of the accused persons.

33. The Hon’ble Apex Court in Nizam and Ors. v. State of Rajasthan reported in (2016) 1 SCC 550, has held that the conviction on the basis of ‘last seen theory’ should be enforced keeping in mind the circumstances that precede the alleged incident. The germane portion of the judgment is extracted below: “Undoubtedly, “last seen theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “last seen theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is wellsettled by this Court that it is not prudent to base the conviction solely on “last seen theory”. “Last seen theory” should be applied taking into consideration the case of the prosecution in its entirely and keeping in mind the circumstances that precede and follow the point of being so last seen.”

34. Learned Trial Court in its judgment dated 05.05.2008 has discarded the last seen theory as unreliable and has held as under:- “The first information by DD No. 31B Ex.PW11/A to the police is given on 24.02.2004 at 1.45 a.m. by Shri Pramod the maternal uncle of deceased Pradeep stating that the latter was missing. But in this report PW[8] has not stated that the deceased Pradeep was last seen with accused Vinod. In the crossexamination PW[8] has stated that he had discussed with his family members including PW[7] Indrawati and PW[9] Vijay before lodging report with the police. He admitted that it was correct that no one was suspected when the report lodged by him with the police. Therefore, it is clear that in the initial information given to the police the accused Vinod was not named as the person who was last seen with the deceased Pradeep and it is only afterwards that the name of accused Vinod was given by PW[7], PW[8] and PW[9] the mother and maternal uncle’s of deceased Pradeep, respectively in there statements under section 161 Cr.P.C. before the police. In her statement PW[7] Indrawati, the mother of the deceased Pradeep has stated that Pradeep went to the house of Vinod to play carrom and she saw both Pradeep and Vinod going together from the house after playing carrom. The statement made by the witness PW[7] in her examination in chief was confronted with her statement under section 161 CrPC Ex PW7/DA where it was not so recorded. Thus the statement of PW[7] that she saw accused Vinod and her son going together, made in the examination in chief has no value. PW[7] is the mother of the deceased Pradeep has stated that her son Pradeep went to the house of Vinod to play carrom but PW[9] the maternal uncle of deceased Pradeep has stated that at about 4 p.m. accused Vinod came and took his nephew Pradeep with him. Similarly the PW[8] another maternal uncle of the deceased has stated in his examination-inchief that after taking meals Pradeep left outside. However, he did not return thereafter. PW[8] also stated that Pradeep had left along with the accused Vinod Therefore, there is contradiction between the statement of the mother of the deceased PW[7] and the maternal uncles of the deceased PW[8] and PW[9] the former stating that the deceased Pradeep were to the home of the accused Vinod to play carrom but the latter stating that the accused Vinod came and took the deceased Pradeep from his house with him. In view of above the important aspect of evidence of last seen accused Vinod and deceased Pradeep is not established by any credit worthy evidence in this case.”

35. In this context, we deem it necessary to peruse the testimonies of material Prosecution Witnesses i.e. PW-7 (Indrawati), PW-8 (Pramod) and PW-9 (Vijay Singh). PW-7 (Indrawati) during her examination in chief deposed as under:- “On 23.02.2004, my son Pradeep used to study in class 7th at Vijay Bharti Public School, Badarpur. On that day Pradeep had returned to the house from his school at about 1.40 PM. I asked Pradeep to go for tuition as it was 3 PM. Pradeep told me that he was not feeling well. There is a house of Vinod in my neighbourhood. My son Pradeep went to the house of Vinod to play Carrom. I insisted Pradeep to go for tuition and not to play Carrom with Vinod. I stood at the door of the house of accused Vinod. Thereafter, I saw both Pradeep and Vinod going together from the house after playing Carrom. Thereafter came at my house. I started doing work at my house. After sometime I thought that Pradeep had not returned till that time. I searched for Pradeep but he could not be traced. I searched him till 10:30PM. I inquired from friends of Pradeep whether they had seen Pradeep. They refused to have seen him.” In her cross-examination she deposed as under:- “……..I had stated to the police in my statement that I had seen my son Pradeep and Vinod going together. Confronted with statement Ex.PW7/DA where it is not so recorded. It is incorrect to suggest that I have given false statement or that my son Pradeep was never seen by me in company of accused Vinod or that accused Vinod never took Pradeep with him or that I have falsely named him due to suspicion. It is incorrect to suggest that I have given false statement.”

36. PW-8 (Pramod) in his examination in chief deposed as under:- I was doing private job at Delhi in the month of Jan and Feb 2004. I used to reside at that time at the house of my sister PW[7] indrawati at her residence at D-38/2, Gali No.4, Mohan Baba Nagar, ND. Indrawati is my cousin. On 23/2/04 Pradeep came from school. After taking meals Pradeep left outside. However, he did not return thereafter. Pradeep had left along with accused Vinod. We searched for Pradeep till night but he could not be traced. Vinod returned to his house at 12 night. My sister Indrawati was sitting at the door of his house. My sister inquired from Vinod as to where he had left Pradeep. Vinod told her that Pradeep had not accompanied him.

37. PW-9 (Vijay Singh) in his examination in chief has deposed as under:- “On 23/2/04 my nephew Pradeep came from the school at about 1.40 PM. He changed his school dress. After taking lunch, he started playing inside the house. His mother told him to go to tuition but he did not got to tuition and told his mother that he was having headache. At about 4 pm accused Vinod came and took my nephew Pradeep with him. My sister was also present in the house. In the evening my sister told me that Pradeep had not returned till that time. I and my sister started searching Pradeep. Pradeep did not turn till 10 pm. We searched him at the residence of relatives and friends in locality. Accused Vinod returned at his house at 12 night. We made inquiries from accused Vinod as to where Pradeep was. Accused Vinod told us that he had not taken Pradeep with him. We searched for Pradeep throughout the night.

38. A perusal of the testimonies of PW-7 (Inderawati), PW-8 (Pramod) and PW-9 (Vijay Singh) establish that the deceased was last seen with Respondent No.4 (Vinod). Though, in their testimonies there is minor variation in relation to whether Vinod came to the house of the deceased or the deceased went to the house of Vinod to play carrom. But the fact that the deceased left in the company of the accused cannot be ignored. Moreover, it has also emerged from testimony of PW-7 that when Vinod came back home at around 12:00pm, he was confronted by the mother of the deceased (PW-7) about the whereabouts of the deceased, but he failed to give any cogent reply. Further, in the statement recorded under Section 313 Cr.PC. a leading question was put to Respondent No. 4 (Vinod) that PW-7 saw both the deceased and Vinod going together from the house after playing carom to which he also failed to give any justification. The comparative table showing the minute variance in testimonies is also reproduced below:- PW-7 (Indrawati) PW-8 (Pramod) PW-9 (Vijay Singh) My son Pradeep went to the house of Vinod to play Carrom. I stood at the door of the house of accused Vinod. Thereafter, I saw both Pradeep and Vinod going together from the house after playing Carrom. Pradeep had left along with accused Vinod. At about 4 pm accused Vinod came and took my nephew Pradeep with him.

39. A perusal of the testimonies of PW-7 (Indrawati), PW-8 (Pramod) and PW-9 (Vijay Singh) establish that the deceased was last seen with Respondent No. 4 (Vinod). Applying the Judicial precedent laid down by the Apex Court in Nizam and Ors. v. State of Rajasthan (supra) we can conclude that the last seen theory serves as an additional link to the chain of circumstances. It also shifts the burden of proof towards the accused to offer a reasonable explanation as to the factum of death of the deceased.

40. Another limb of the conclusion drawn by the Learned Trial Court with respect to the last seen theory is that Respondent No. 4 (Vinod) was not named in the initial information as last seen with the deceased (Pradeep) and therefore the last seen theory is not credit worthy. We deem it necessary to point out that an FIR is not an encyclopedia of all the facts in a case.

41. In this context, we deem it necessary to refer to the dicta of Apex Court in State of U.P. v. Krishna Master and Ors. Criminal Appeal No. 1180 Of 2004

42. Applying the dicta of the Apex Court in U.P. v. Krishna Master (supra), we can conclude that the Trial Court erred in taking an adverse inference with respect to omission in mentioning that the deceased was last seen with Respondent No. 4 (Vinod) in the FIR. The last seen circumstance is therefore established.

ARREST OF RESPONDENTS AND INCRIMINATING RECOVERIES PURSUANT TO THEIR DISCLOSURE.

43. Pursuant to the statement of PW-7 (Indrawati) that she had received a telephone call demanding ransom of Rs. 10 lakhs, PW-8 (ACP R.S. Dahiya) installed voice recording instrument with the landline phone installed at the house of Indravati. As per the testimony of PW-5 (Pramod Kumar in Crl. A 1222/2019) “On 01.03.2004, the police had taken the cassette from the house and got identified the recorded voice from Vinod (Respondent No. 4) and other persons from the neighborhood, the voice of ransom call was found to be made of accused Sudhakar”. Pursuant to identification of voice of Sudhakar, inquiries were made from Respondent No. 4 (Vinod), who was interrogated and then arrested. In relation to the arrest of Respondent No. 4 (Vinod), PW-14 (ACP RS Dahiya) deposed that:- “On 01.03.04 DO received information that the voice which was played in locality was of Sudhakar, friend of Vinod who was neighbourer of deceased. On this information, accused Vinod was interrogated. He was arrested and his personal search was conducted vide memo Ex.PW9/A. He was interrogated and his disclosure statement Ex.PW8/F was recorded. As per his disclosure statement accused Vinod took the police team to area of Sarai Rohilla. He took the police to house of accused Satinder at Shashtri Park and at pointing out of accused Vinod, accused Satinder was arrested. His personal search was conducted vide memo Ex.PW9/B. Accused was interrogated and his disclosure statement Ex.PW8/H was recorded. As per his disclosure statement he got recovered a knife. I prepared sketch of the knife vide memo Ex.PW8/B. It was kept in pulanda, sealed with seal of RSD and seized vide memo Ex.PW8/C. Thereafter both the accused took the police team to house of accused Vikas. Accused Vikas was arrested and his personal search was conducted vide memo Ex.PW9C. His disclosure statement Ex.PW8/G was recorded. As per his disclosure statement he got recovered on pant of deceased and the same was identified by PW Vijay and Pramod. It was kept in pulanda, sealed with seal of RSD and seized vide memo Ex.PW8/D.

44. The testimony of PW-14 (ACP RS Dahiya) is corroborated with the testimony of PW-9 (Vijay Singh) who was a part of the team who conducted raids and arrested the accused persons.

45. Learned Counsel for the appellant has submitted that the learned trial court has erred in ignoring the recoveries effected at the instance of the appellants and holding them to be unreliable. He further submitted that the articles in question (Knife, Pant and wallet of the deceased) were recovered at the instance of and from Respondent No.2 to 4 has been glossed over erroneously by the learned Trial Court.

46. Before delving into the veracity of recoveries which took place at the behest of the Respondent No. 2 (Satinder), Respondent No. 3 (Vikas) and Respondent No. 4 (Vinod) respectively, it is pertinent to discuss the law relating to recovery pursuant to a disclosure. In this context, it is relevant to peruse Section 27 of the Indian Evidence Act which reads as follows:-

47. In the light of Section 27 of the Indian Evidence Act, 1872 whatever information is given by the accused in consequence of which a fact is discovered only that would be admissible in the evidence, regardless of the fact that such information amounts to confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of confirmation by the subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from an accused; such a discovery is true and admissible. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes reliable information.

48. The Apex Court in a catena of Judgments has extensively discussed the law related to the admissibility of recovered articles at the instance of the accused and has held that recovery and pointing out memo which directly link the accused person to the commission of the alleged offence is relevant and admissible in the eyes of the law. The Apex Court in the case of Debapriya Pal vs. State of West Bengal reported at (2017) 11 SCC 31 has held as under: - “7....Under Section 27 of the Evidence Act only so much of recovery, as a result of the disclosure statement, which directly pertains to the commission of crime is relevant. Otherwise, such an evidence is barred Under Section 25 of the Evidence Act. Recovery of laptop does not have any bearing. It is neither the weapon of crime nor it has any cause of connection with the commission of crime. The law on this aspect is succinctly said in the case "Jaffar Hussain Dastagir v. State of Maharashtra: (1969) 2 SCC 872 in the following manner:

5. Under Section 25 of the Evidence Act no confession made by an Accused to a police officer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an Accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the Accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the Section is that the information given by the Accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence.” (emphasis supplied)

49. The Learned Trial Court while holding the recovery of knife as unreliable has held as under:- “The said description of the knife and the sketch prepared by the said doctor are now exhibited as Ex C[1] and Ex C[2] respectively. In Ex C[1] the opinion is given by the doctor that the injuries given in the postmortem report are possible by the weapon which was sent to CFSL by the investigating agency after obtaining the postmortem report. The knife sent to the CFSL the sketch of which Ex C[2] was prepared by the doctor of CFSL is not a buttondar knife. Further the sketch of the knife allegedly recovered from the accused Satinder prepared by the investigating officer Ex.PW8/B besides showing that it was a buttondar knife also shows that there is variance in the description of the knife. The total length of the knife is shown in the sketch Ex.PW8/B as 23.[9] cm, length of the blade as 11.[2] cm and the length of the handle of the knife as 12.[7] cm while the sketch of the knife Ex.C[2] prepared by the doctor of CFSL shows the total length of the knife is 22.[5] cm, the length of the blade as 11 cm leading to the inference that the length of the handle of the knife is 11.[5] cm. These contradictions in the description and measurement of knife not only create serious doubt about the recovery of the knife/weapon of offence from accused Satinder vide memo Ex.PW8/C but also throw doubt on CFSL report Ex.PB which is proved by the prosecution to show that the knife contained human blood of ‘B’ Group. More so, when PW13 stated in the crossexamination that no fingerprints were lifted from the spot or from the knife and PW14 has stated in the cross examination that it was correct that no finger prints of accused were found on said knife. The alleged recovery of the knife underneath the socks is otherwise doubtful as it is alleged that the socks were manufactured there. If the socks were manufactured at that place it is not likely that the knife/the weapon of offence would be kept under the socks which were manufactured for sale and would remain there since 24.02.2004 untouched.”

50. We deem it necessary to peruse the testimonies of PW-8 (Pramod), PW-9 (Vijay Singh), PW-13 (SI Ravi Shankar) and PW-14 (ACP RS Dahiya) to determine whether the recovery of knife is reliable. PW-8 (Pramod) in his examination in chief has deposed as under:- “On 1.3.04 accused Vinod took the police party at the house of accused Satinder at Shastri Park. The accused Satinder was interrogated. Accused Satinder got recovered one knife from underneath the heap of socks of his factory cum residence. IO prepared the sketch of the knife which is Ex.PW8/B. The knife was put in a pulanda, sealed with seal of RSD and seized vide memo Ex.PW8/C.” In his cross-examination he has deposed as under:- “…………Accused Satinder used to reside on the 2nd floor. I do not remember if the stairs leading to 2nd floor was from inside the house or were separate near the gate of the house. No family member of the accused was present inside his house. The accused was alone in the house at that time. Landlord and his family members were present in their house. Police had asked them to be witness but they had not joined the investigation. The house of accused Satinder consisted of one room and open space in front of it. I cannot tell the direction of his room. It is incorrect to suggest that I do not know direction as I never reached there. The landlord had opened the lock of the gate on ground floor. Police officials had entered inside the house of accused Satinder. First the police interrogated the accused and thereafter the accused got recovered the knife. The police had recovered knife from underneath the heap of socks when the accused had disclosed the same to be lying there. It was recovered by police in presence of accused Satinder. I had seen the knife. I do not remember if the knife was closed or open when it was recovered. I do not know if there was blood on the knife or not. I do not remember if the knife got recovered by accused was wrapped in any cloth or paper. I do not remember the length of the knife measured by the police at the spot. I do not remember from where the police had arranged the scale with which the knife was measured.”

51. PW-9 (Vijay Singh) in his examination in chief has deposed as under:- “Thereafter the accused Vinod took the police party to house of accused Satinder at Sarai Rohilla. At his pointing out accused Satinder was apprehended. He was interrogated after his arrest. Personal search memo of accused Satinder was prepared vide memo Ex. PW9/B. He was interrogated and his disclosure statement Ex.PW8/H was recorded. He got recovered one knife from underneath the heap of socks from his house. IO prepared the sketch of knife Ex.PW8/B. The knife was seized vide memo Ex.PW8/C.”

52. In his examination in chief PW-13 (SI Ravi Shankar) deposed as under:- “I made inquiries from Vinod whose name had appeared in the DD entry. Vinod was interrogated. He was arrested and his disclosure statement Ex.PW8/F was recorded. Thereafter accused Vinod took the police party to the area of PS Sarai Rohilla. There at the pointing out of Vinod, accused Satinder now present before the court was arrested. He was arrested and his disclosure statement was recorded. He got recovered one knife, the sketch of the knife was prepared which is Ex.PW8/B. It was seized vide memo Ex.PW8/C.”

53. Further, PW-14 (ACP RS Dahiya) in his examination in chief has deposed as under:- “……………As per his disclosure statement accused Vinod took the police team to area of Sarai Rohilla. He took the police to house of accused Satinder at Shashtri Park and at pointing out of accused Vinod, accused Satinder was arrested. His personal search was conducted vide memo Ex.PW9/B. Accused was interrogated and his disclosure statement Ex.PW8/H was recorded. As per his disclosure statement he got recovered a knife. I prepared sketch of the knife vide memo Ex.PW8/B. It was kept in pulanda, sealed with seal of RSD and seized vide memo Ex.PW8/C……”

54. The variation in the measurements of the knife which was given by the CFSL expert and the one given by the investigating officer is reproduced below: Total Measurements Sketch prepared by Investigating Officer Ex. PW8/B Sketch prepared by the CFSL Doctor. Total length 23.9cm 22.5cm Length of blade 11.2cm 11cm Length of handle 12.7cm 11.[5] cm

55. A perusal of the measurement of the knife prepared by the CFSL expert and the one prepared by the investigating officer (Ex. PW8/B) establish that there is a difference of 1.[4] cm. In our considerate view, discrepancy in the measurement of the knife does not tantamount to a major contradiction and is covered under minor inconsistency which may arise due to different measuring points or measuring techniques adopted by the CFSL expert.

56. A conjoint reading of the testimonies of PW-8 (Pramod), PW-9 (Vijay Singh), PW-13 (SI Ravi Shankar) and PW-14 (ACP RS Dahiya) establish the following: a. Respondent No. 4 (Vinod) was interrogated and arrested on 01.03.2004. b. Pursuant to the disclosure of Respondent No. 4 (Vinod) which was recorded as Ex. PW8/F, he took the police party to the place of residence of Respondent No. 2 (Satinder). c. Subsequently, Respondent No.2 (Satinder) was arrested and his disclosure statement was recorded as Ex. PW8/H. A knife was recovered at the instance of Respondent No. 2 (Satinder) from his residence which was found underneath a heap of socks. The sketch of the knife was prepared vide memo Ex. PW8/B. The knife was sealed vide seizure memo Ex. PW8/C. The fact, that the knife was recovered at the instance of Respondent No. 2 (Satinder) and had blood stains on it is sufficient to consider it as a reliable piece of evidence.

DEFECTIVE INVESTIGATION WITH RESPECT TO RECOVERY OF KNIFE

57. Learned Trial Court has taken adverse inference with respect to the omission in taking fingerprints from the knife which was recovered at the instance of Respondent No. 2 (Satinder)

58. In our considerate view, the omission by the investigation agency to lift the finger prints from the knife which was recovered at the instance of Respondent No.2 (Satinder) cannot be a ground for drawing an adverse inference against the entire case of the prosecution. At best, it opens the possibility of a defective investigation conducted by the Investigating Agency requiring a higher scrutiny of the said recovery.

59. At this stage, we also deem it necessary to refer to criminal law jurisprudence with respect to defective investigation. The Hon’ble Supreme Court in a catena of Judgements has discussed the law related to defective investigation where the Hon’ble Court has tried to strike a balance between the lacuna in investigation conducted by the investigation agency and the rights of the accused in a criminal trial.

60. The Apex Court in Hema v. State reported in (2013) 10 SCC 192, held that fair investigation is a part of the Constitutional Rights guaranteed under Articles 20 and 21 of the Constitution of India and it is the immediate requirement of the rule of law that investigation must be fair, transparent and judicious and observed as follows:

(2010) 3 SCC (Cri) 1402], the following discussion and conclusions are relevant which are as follows: (SCC p. 589, para 55)

18. It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions, etc. it is the obligation on the part of the court to scrutinise the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth. ” (Emphasis supplied)

61. Further, it is settled law that defective investigation by itself cannot be a ground for acquittal as laid down by the Apex Court in the case of Ram Bali v. State of Uttar Pradesh reported in (2004) 10 SCC

598. Germane portion of the judgment is extracted below:- “in case of defective investigation the Court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective”

62. The legal principles that emerge from a careful consideration of the aforesaid decisions are summarized herein below:

(i) Some defects in the investigation, lapse on the part of the investigating officer, would not result in acquittal of the accused.

(ii) If the evidence on record bears out that the case of the prosecution and the evidence is of sterling quality and is reliable then the lapses or irregularities in the investigation will not attribute benefit to the accused.

(iii) However, to set aside the conviction of the accused, there must be a sufficient nexus between the conviction and the irregularity in the investigation. If the prosecution evidence on which the accused has been convicted is held to be reliable and of sterling quality, the conviction cannot be set aside solely on the basis of some irregularity or illegality.

63. In view of the aforesaid dictums laid down by the Apex Court, it is established that the benefit of defective investigation cannot be extended to the Respondents. We are of the opinion that in the case of defective investigation, the court has to be circumspect in evaluating the evidence, but it can be stated that error, illegality or defect in investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused. If the prosecution case is established by the evidence adduced, any failure or omission on the part of the Investigating Officer cannot render the case of the prosecution doubtful. Hence, the finding of the Trial Court with respect to the recovery of knife as an unreliable piece of evidence on the grounds that the investigating officer failed to lift any finger prints is not correct.

RECOVERY OF PANT OF THE DECEASED AT THE INSTANCE OF RESPONDENT NO. 3 (VIKAS)

64. Subsequent to the recovery of knife at the instance of Respondent No. 2 (Satinder), Respondent No. 4 (Vinod) and Respondent No. 2 (Satinder) led the Investigating Agency to the residence of Respondent No. 3 (Vikas) at whose instance a pant (Ex. PW 8/C) was recovered.

65. Learned Counsel for the appellant have submitted that the pant of the deceased (Pradeep) recovered at the instance of Respondent No. 3 (Vikas) points towards the guilt of the Respondent No 3 (Vikas) towards the commission of the crime. They further contended that the learned trial judge had picked minor inconsistencies with respect to the color of the pants which was identified by the Prosecution Witnesses and misconstrued it as major contradictions, thereby discarding the recovery of pants and making it unreliable.

66. With respect to the recovery of pants of the deceased Learned Trial Court in its Judgment has held as under:- “The prosecution has alleged that the pant of deceased was recovered from accused Vikas vide memo Ex.PW8/C but the witnesses of prosecution have given different colour of this trouser. PW[7] Indrawati has stated that the pant was of brown colour. PW-8 Pramod has stated in the examination –in-chief that it was striped brown and in the cross-examination he has stated that it had stripes of yellow colour. PW[9] Vijay Singh has given the colour of the pant as chocolate colour. PW13 SI Ravi Shankar has stated that the pant was of chocolate colour with stripes. PW14 ACP R S Dahiya has stated that it was of maroon colour. Further PW14 has stated that the landlord of the accused Satinder was not present while PW[8] Pramod and PW[9] Vijay Singh have stated that he was present. Further PW[8] has stated that the residence of accused Satinder was at second – floor while PW 9 has stated that if ground floor is counted as first floor he was living at second floor meaning thereby that he was living at first floor and PW 13 has stated that he was living at first floor but PW 14 has stated that he did not remember about it. Therefore, the recovery of the pant of deceased Pradeep from accused Vikas is also doubtful.”

67. In relation to the recovery of pant, we deem it necessary to peruse the testimonies of PW-7 (Indrawati), PW-8 (Pramod), PW-9 (Vijay Singh), PW-13 (SI Ravi Shankar) and PW-14 (ACP RS Dahiya) to determine whether there are major contradictions in the testimonies of the Prosecution Witnesses or minor inconsistencies which can be overlooked.

68. PW-7 (Indrawati) in her examination in chief has deposed as under:- “After the return from school on 23.02.04, my son Pradeep had changed his school dress and had worn one white color jersey having blue color flowers on it, 1 shirt of pink color, pant of brown color. He was wearing chappals. I had not got checked Pradeep from any doctor when he had informed that he was not feeling well. Police had recorded my statement on 24/2/04. I do not remember if police had got signatures on my statement. It is incorrect to suggest that I have concocted a false story in connivance with police.”

69. PW-8 (Pramod) in his examination in chief has deposed as under:- “Thereafter both accused Vinod and Satinder took the police to house of accused Vikas at Shastri Nagar, accused Vikas got recovered pant of stripped brown color belonging to the deceased from underneath the pillow from his house. The pant was put in a pulanda, sealed with seal of RSD and seized vide memo Ex.PW8/D.”

70. PW-9 (Vijay Singh) in his examination in chief has deposed as under:- “Thereafter accused Vinod and Satinder took the police to house of accused Vikas at Sarai Rohilla, accused Vikas was apprehended at their pointing out. He was also interrogated. He was arrested vide memo Ex.PW9/C. His disclosure statement Ex.PW8/G was recorded. Accused Vikas got recovered pant of deceased from underneath the pillow which was seized vide memo Ex.PW8/D. Thereafter all the accused persons were brought to the PS.” In his cross-examination, he deposed as under:- “The PS is at a distance of 1km. from our house. Deceased was wearing jersey of white color having blue flowers on it, T shirt of pink color and pant of chocolate color, wearing hawai chappals when he had left the house. Before lodging report with police we had searched in the locality……”

71. PW-13 (SI Ravi Shankar) in his examination in chief deposed as under:- “From there we reached at the residence of Vikas. He was arrested and interrogated. His disclosure statement Ex.PW8/G was recorded. At his pointing out one pant of the deceased child was recovered from inside the pillow lying on the bed of his room. The pant was put in a pulanda, sealed with the seal of RSD and was seized vide memo Ex.PW8/D. Thereafter all the accused took the police party to Monkey Park. The pointing out memo was prepared which is Ex.PW13/A.” In his cross-examination he deposed as under:- “Pillow was opened at room of accused Vikas. Colour of the pant was chocolate colour having strips. The length of the pant was not measured. The pant got recovered by accused Vikas was not compared with the pant of accused Vikas. It is incorrect to suggest that I have given false statement or that nothing was got recovered by accused Vikas.”

72. PW-14 (ACP RS Dahiya) in his examination in chief deposed as under:- “Thereafter both the accused took the police team to house of accused Vikas. Accused Vikas was arrested and his personal search was conducted vide memo Ex.PW9C. His disclosure statement Ex.PW8/G was recorded. As per his disclosure statement he got recovered on pant of deceased and the same was identified by PW Vijay and Pramod. It was kept in pulanda, sealed with seal of RSD and seized vide memo Ex.PW8/D. In his cross-examination he has deposed as under:- “Accused Vikas was residing on rented room. Accused Vinod has taken us directly at room of the accused Vikas. We had not contacted the landlord at that time. I do not remember the floor on which room of accused was situated. The color of the pant was Maroon. Accused Vikas had taken out the pant from inside the pillow. The pant was not measured”

73. A conjoint reading of the testimonies of PW-7 (Indrawati), PW-8 (Pramod), PW-9 (Vijay Singh), PW-13 (SI Ravi Shankar) and PW-14 (ACP RS Dahiya) reveal the following:a. Respondent No. 2 (Satinder) and Respondent No. 4 (Vinod) took the investigation agency to the house of Respondent No.3 (Vikas) where Respondent No.3 was arrested and his disclosure statement was recorded (Ex. PW 8/G). b. A pointing out memo was prepared and the pants were recovered (Ex. PW 8/C) at the instance of Respondent No. 3 (Vikas) from inside the pillow lying on the bed of his room.

74. The Learned Trial Court in its Judgment dated 05.05.2008 has discarded the recovery of pant and has held it to be unreliable piece of evidence on the ground that the prosecution witnesses have stated different colors of the pant making their statements contradictory. In our considerate view, the color of the pant mentioned by the prosecution witnesses is a varied shade of a same color. The color described by the prosecution witnesses is subject to different description by different individuals. Therefore, such description of color of the pant of the deceased recovered from the residence of Respondent No. 3 (Vikas) is a minor discrepancy and cannot be construed as a major contradiction. A table showing the varied versions of the color of the pants mentioned by the Prosecution Witnesses is reproduced below: Prosecution Witnesses Color of Pant mentioned PW- 7 (Indrawati) Brown PW- 8 (Pramod) Brown with stripes PW- 9 (Vijay Singh) Chocolate PW- 13 (SI Ravi Shankar) Chocolate color and stripes PW- 14 (ACP RS Dahiya) Maroon

75. Hence it can be concluded that the recovery of the pant of the deceased at the instance of Respondent No. 3 (Vikas) is a reliable piece of evidence and points towards the guilt of the accused persons.

76. At this stage, it is necessary to point out that minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. We deem it necessary to refer to the dicta of the Apex Court with respect to the law related to minor inconsistencies. In Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., reported at (2013) 12 SCC 796, the Apex Court has held as under:- “28. As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defense can take advantage of such inconsistencies. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission (See Leela Ram vs. State of Haryana and another, Rammi alias Rameshwar v. State of M.P. and Shyamal Ghosh v. State of West Bengal).

77. Keeping in view the dicta of the Apex Court in Mritunjoy Biswas (Supra) we can conclude that the minor inconsistencies in testimonies of the Prosecution Witnesses cannot be grounds for discarding the Prosecution evidence. Therefore, it can be said that the recoveries which took place at the behest of Respondent No. 3 (Vikas) and Respondent No. 2 (Satinder) have minor inconsistencies and form a reliable piece of evidence. The aforesaid discussed inconsistencies do not go to the root of the matter and the evidence therefore needs to be considered from a point of view of trustworthiness. We can therefore conclude that the recovery of knife and pant of the deceased are reliable and form a crucial part of the chain of circumstances which points towards the guilt of the Respondents.

RECOVERY OF THE PURSE OF THE DECEASED AT THE INSTANCE OF RESPONDENT NO. 4 (VINOD)

78. The next argument made by the Learned Counsel for the appellants is that the recovery of the purse of the deceased was at the instance of Respondent No. 4 (Vinod) which clearly points towards his guilt. They submitted that the Learned Trial Court had erred in holding the recovery of wallet as unreliable as the recovery of purse of the deceased was from an open area visible to the naked eye and is therefore outside the contours of Section 27 of the Evidence Act.

79. In this regard we deem it necessary to refer to the dicta of the Apex Court in State of H.P. v. Jeet Singh reported in (1999) 4 SCC 370

remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others." (Emphasis Supplied)

80. The Apex Court in Ibrahim Musa Chauhan @ Baba Chauhan v. State of Maharashtra reported in 2013 (3) SCALE 207 held as under:-

81. We deem it necessary to peruse the testimonies of PW-8 (Pramod), PW-9 (Vijay Singh), PW-13 (SI Ravi Shankar) and PW-14 (ACP RS Dahiya). PW-8 (Pramod) deposed as under:- “On return from the house of accused Vikas, accused Vinod got recovered one purse with words Woodland written over it from the bushes near the nali of Badarpur Mathura road. On checking the same it was found containing one envelope of a letter and photograph of Indrawati. The purse was put in a pulanda sealed with seal of RSD and seized vide memo Ex.PW8/E.”

82. PW-9 (Vijay Singh) in his examination in chief deposed as under:- “On return to the PS, accused Vinod got recovered one purse fro near the nala of PS Badarpur Mathura road. On checking the purse it found containing on envelope and one photo my sister Indrawati. The purse was put in pulanda, sealed with seal of RSD and seized vide memo Ex.PW8/E.”

83. PW-13 (SI Ravi Shankar) deposed as under:- “Accused Vinod got recovered one purse from near a Ganda Nala near Badarpur police station. The purse contained the photograph of the mother of the deceased. It also contained one envelope sent by the father of deceased from Kuwait. The purse along with its contents was seized vide memo Ex.PW8/E after preparing its sealed pulanda.”

84. PW-14 (ACP RS Dahiya) has deposed as under:- “Thereafter we returned to Badarpur. Accused Vinod took the police team near the ganda nala near wine shop, Badarpur and got recovered one purse from there and told me that purse belonged to deceased. On opening the purse, one photograph of mother of deceased and one envelop sent by father of deceased from Quwait was found. The purse along with its contents was kept in pulanda, sealed with seal of RSD and seized vide memo Ex.PW8/E. Thereafter, we returned to PS. I deposited the case property in Malkhana along with form FSL. Accused were kept in lock up.”

85. A conjoint reading of (Vijay Singh), PW-13 (SI Ravi Shankar), PW- 14 (ACP RS Dahiya) establishes that Respondent No. 4 (Vinod) took the police team near a ganda nala and the purse of the deceased was recovered from the bushes near the ganda nala. An envelope was also recovered which was sent by the father of the deceased and a photograph of the Indrawati, mother of the deceased, was found in the purse. It can therefore be said, that the disclosure statement of Respondent No. 4 (Vinod) led to the bushes from where the purse of the deceased was recovered. It is pertinent to point out here that the recovery of purse of the deceased was not from an area ordinarily visible to others. Applying the abovementioned dictas of the Hon’ble Apex Court with respect to recovery from an open space, we can conclude that the recovery of the purse of the deceased was not from an open space ordinarily visible to others and therefore falls under recovery made under Section 27 of the Indian Evidence Act, 1872. We therefore find the recovery of purse as a reliable piece of evidence.

MEDICAL EVIDENCE

86. At this stage, it is relevant to examine whether the medical evidence placed on record serves as an additional link to the chain of circumstances so created. PW-3 (Dr. Jayan M.G), who was posted as Senior Resident AIIMS, New Delhi had conducted the post-mortem of the deceased. He proved the post-mortem report (Ex. PW3/A) and has deposed as under:- “On 26.3.2004 I have conducted postmortem on the body of deceased Pradeep Kumar s/o Manohar Lal Aged 14 years Male. After examination, I observed the following observation: - Rigor mortis was present on all parts of the body. Postmortem staining was present on back and dependent parts except over the pressure points. Eyes and mouth were closed and there was no sign of decomposition.

ANTE MORTEM INJURIES: -

1. Incised wound of size 9 x 5 cms on upper most part of neck with clean cut edges, gaping and beveling (Lower margin and tissues more visible) placed obliquely on left side laterally and extending upto the middle on the back (with anterolateral end lower than the upper end on back), measuring 8 cm from left mid lavicular line, 4 cms from left mastoid and 7 cms from left scapula. On exploration, subcutanesus tissues, muscle, blood vessel (Jugular V) were found cut associated with reddened tissues and collection of small blood clots. Spinal cord was found fully severed between C[2] and C[3] Vertebra with (interveryebral) ligments.

2. Incised wound of size 3 x 1.[5] cms with clean edges placed transversely on left upper most anterior aspect of neck, almost in line and continuation with injury No. (1) except for a skin tag of.[7] cms in between, measures 1 cms from midline, 9 cms from sternal notch and 6 cms from the chin. On examination, subcutanesus tissues and muscles were found cut with red colour tissues.

3. Incised wound of size 7 X 1 cms places transversely on right anterior aspect of neck with clean edges over throid, measuring 7 cms from sternal notch and 6 cms from right ear (extends from mid line). Underlying subcutanesus tissues, muscle, right thyroid lamina are found severely associated with reddened tissues.

4. Incised wound of 5 X 1 cms placed transversely on right anterior aspect of neck with clean edges, 2 cms above injury No. 3 measuring 9 cm from sternal notch, 2 cms from midline, 5 cms from right mastoid underlying subcutanesus tissues and muscle were found cut.

5. Two superficial incised wounds of size 6 and 5 X.200s respectively 2 cms apart on anterior aspect of neck and upper one measuring 8 cms from sternal notch and 7 cms from the chin.

6. Incised wound near left angle of mouth of size 1x.[5] cms with clean edges measuring 10 cms from left ear horizontally and 4 cms from chin underlying muscle was cut with bleeding surface.

7. Incised wound over left nostril extending into adjoning were of left side of face of size 1 X.[7] cms with clean edges measuring 4 cms from injury No. 6 vertically.

INTERNAL EXAMINATION: Brain- Pale in appearance Stomach shows blood and blood clots mised with partially digested food. Anal sphincter - Patulous. Recent red coloured tears present in 6 and 12 0’clock position. Blood in gauze, anal swab, clothes, blood stained handkerchief and blood-stained stone were collected and sealed and handed over to the IO alongwith the sample seal. The time since death in this case was about two and a half days. As per my opinion, the cause of death in this case was due to shock due to injury No.1 and 3 caused by sharp edged weapon which are sufficient to cause death in ordinary course of nature. All injuries are ante mortem in nature. I prepared my detailed report which is Ex. PW 3/A and the same is in hand writing and bears my signatures at Point A. 11 inquest papers along with the post mortem report were also handed over to the IO.

87. A perusal of the testimony of doctor who conducted the post-mortem reveals that the cause of death of the deceased was due to shock caused by injury number 1 (Incised wound of size 9 x 5 cms on upper most part of neck) and injury number 3 (Incised wound of size 7 X 1 cms places transversely on right anterior aspect of neck) due to a sharp-edged weapon which is sufficient to cause death in the ordinary course of nature. Therefore, it is established that the cause of death of the deceased (Pradeep) was due to a sharp edged weapon, similar to the blood stained knife which was recovered at the instance of Respondent No. 2 (Satinder). The medical evidence therefore fortifies the case of the Appellant and points towards the guilt of Respondent No. 2 to 4. CRIMINAL CONSPIRACY UNDER SECTION 120B IPC AND ARMS ACT

88. The Apex Court in the case of Baldev Singh v. State of Punjab reported in 2009 6 SCC 564 has held as under: -

Explanation. --It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." An offence of conspiracy which is a separate and distinct offence, thus, would require involvement of more than one person. Criminal conspiracy is an independent offence. It is punishable separately; its ingredients being: -

(i) an agreement between two or more persons.

(ii) the agreement must relate to doing or causing to be done either

(a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means. It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however doing so, it must be borne in mind that meeting of the mind is essential; mere knowledge or discussion would not be sufficient.

18. Adverting to the said question once again, we may, however, notice that recently in Yogesh @ SachinJagdish Joshi v. State of Maharashtra [MANU/SC/7528/2008: (2008) 6 SCALE 469], a Division Bench of this Court held:

objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."

19. Yet again in Nirmal Singh Kahlon vs. State of Punjab &Ors. (2008) 14 SCALE 639], this Court following Ram Lal Narang vs. State (Delhi Administration held that a conspiracy may be a general one and a separate one meaning thereby a larger conspiracy and a smaller which may develop in successive stages. For the aforementioned purpose, the conduct of the parties also assumes some relevance.

20. In K.R. Purushothaman vs. State of Kerala, this Court held:

single illegal act, It may comprise the commission of a number of acts."

13. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair, The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the wellknown rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in Indian Penal Code.

89. Further, in the case of Bilal Hajar@Abdul Hameed v. State Rep by Inspector of Police reported in AIR 2018 SC 4780 the Hon’ble Apex Court has held as under:- "27. The expression "criminal conspiracy" is defined in Section 120-A, Indian Penal Code. It says that when two or more persons agree or cause to be done an illegal act or an act, which is not illegal by illegal means, such an agreement is designated a "criminal conspiracy". It then provides an exception to the effect that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. The explanation appended to the Section clarifies that it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.

28. Section 120-B, Indian Penal Code provides a punishment for committing an offence of criminal conspiracy. It says that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years or upwards shall be punished in the same manner as if he had abetted such offence provided there is no express provision made in the Code for punishment of such conspiracy.

29. Sub-section (2) of Section 120-B, Indian Penal Code, however, provides that a person who is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with an imprisonment of either for a term not exceeding six months or with fine or both.

30. Reading of Section 120-A and Section 120-B, Indian Penal Code makes it clear that an offence of "criminal conspiracy" is a separate and distinct offence. Therefore, in order to constitute a criminal conspiracy and to attract its rigor, two factors must be present in the case on facts: first, involvement of more than one person and second, an agreement between/among such persons to do or causing to be done an illegal act or an act which is not illegal but is done or causing to be done by illegal means.

31. The expression "criminal conspiracy" was aptly explained by this Court in a case reported in Major E.G. Barsay v. State of Bombay (1962) 2 SCR 195. Learned Judge Subba Rao (as His Lordship then was and later became CJI) speaking for the Bench in his distinctive style of writing said: 31....The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.

32. Therefore, in order to constitute a conspiracy, meeting of mind of two or more persons to do an illegal act or an act by illegal means is a must. In other words, it is sine qua non for invoking the plea of conspiracy against the accused. However, it is not necessary that all the conspirators must know each and every detail of the conspiracy, which is being hatched and nor it is necessary to prove their active part/role in such meeting.

33. In other words, their presence and participation in such meeting alone is sufficient. It is well known that a criminal conspiracy is always hatched in secrecy and is never an open affair to anyone much less to public at large.

34. It is for this reason, its existence coupled with the object for which it was hatched has to be gathered on the basis of circumstantial evidence, such as conduct of the conspirators, the chain of circumstances leading to holding of such meeting till the commission of offence by applying the principle applicable for appreciating the circumstantial evidence for holding the Accused guilty for commission of an offence. (See also Baldev Singh v. State of Punjab.

35. Keeping in view the aforesaid principle of law which is consistently followed and reiterated by this Court in several cases, the issue involved in this case is required to be examined with a view to find out as to whether Appellant (A-6) was a member of a criminal conspiracy which was hatched on 01.09.1991 to kill Siva on 05.09.1991 or in other words whether there is any evidence to sustain Appellant's conviction Under Section 120-B, Indian Penal Code and, if so, whether the evidence adduced by the prosecution is in conformity with the parameters laid down by this Court to prove the guilt of the Appellant beyond reasonable doubt."

90. From the perusal of the record we find that testimony of PW-7 (Indrawati), PW-8 (Pramod) and PW-9 (Vijay Singh) establishes that Respondent No.4 (Vinod) was last seen with the deceased. In addition, the testimony of PW[8] (Pramod), PW-9 (Vijay Singh), PW- 13 (SI Ravi Shankar) and PW-14 (ACP RS Dahiya) establish that pursuant to the disclosure statement and at the instance of the Respondent No. 2 (Satinder) the weapon of offence i.e knife was recovered from the house of Respondent No. 2 (Satinder). Moreover, the purse and pants of the deceased were recovered at the instance of accused persons. From a conjoint reading of the testimonies of prosecution witnesses along with the law settled by the Apex Court it is proved on record that Section 120-B of the IPC is clearly attracted against the Respondents in the present case. Hence, the argument raised by the appellants that the prosecution failed to prove any criminal conspiracy under Section 120-B IPC among the appellants holds no ground.

91. It is further evident from the testimony of PW-3 (Dr. Jayan M.G.) that the death occurred due to shock caused by injury no. 1 (Incised wound of size 9 x 5 cms on upper most part neck) and injury no. 3 (Incised wound of size 7 x 1 cms on right anterior aspect of neck) due to sharp edged weapon which is ante mortem in nature and is caused by a sharp edged weapon. The recovery of weapon of offence i.e. knife in the present case depicts that death in the present case has occurred due to a knife blow which was recovered by the investigating officer pursuant to the disclosure of Respondent No. 2 (Satinder). The testimony of prosecution witnesses, namely the investigating officer, PW-14 (ACP RS Dahiya) and PW-13 (SI Ravi Shankar)establishes that Section 25 of Arms Act is made out against the Respondent No. 2 (Satinder). Hence the argument made by the counsel for the Respondent No. 2 (Satinder) that Section 25 Arms Act has not been proved against the Respondent holds no ground. A CASE OF CIRCUMSTANTIAL EVIDENCE

92. The present case is one of circumstantial evidence and for the same reason we deem it necessary to peruse the jurisprudence on Circumstantial evidence discussed by the Hon’ble Supreme Court. The Apex Court in the case of Mohd. Azad vs. State of West Bengal reported in AIR 2009 SC 1307 has held as under:-

97. Prosecution wintness Indrawati in Judgment dated 31.05.2016, in her testimony, has deposed as under:- “Pramod son of my uncle had told me that he had attended a telephonic call made at my landline phone number wherein caller had demand ransom of Rs.10 lakhs in order to release Pradeep. We informed the police about this fact. The police had installed an instrument to record the telephonic conversation with the landline telephone installed at my house on 24.02.2004. On the same day, i.e., 24.02.2004 I received a ransom call at my landline telephone in my house. Caller had asked me to make arrangement of Rs. 10 lakhs in case I wanted to save the life of my son Pradeep and that he was in their custody. He had further told me not to inform the police. I had informed the police that the voice of the caller was the voice of Sudhakar who used to visit the house of Vinod who was our neighbour. xxxx xxxx xxxx xxxx At this stage, MHC(M) produced one sealed pullanda sealed with the seal of Court. On opening the same, it is found to contain cassette (Ex.MO-1). The cassette is played and witness is asked to hear the same. After hearing the cassette, witness states that she identifies the voice of accused, voice of her husband Manohar Lal, Satpal (brother-in-law of my brother), Smt. Vidyawati mother-in-law of her brother Vijay. She also identifies the voice of some other persons i.e. Vishambher and others, who belong to her native place as well as her matrimonial house. Witness states that accused Sudhakar was demanding Rs. 10 Lacs as ransom money and was giving warning to not to do any cheating and asked to do as he directed and to proceed at 06:00 pm, when he called them and come to the place, which he would suggest, when he called again. (Witness identifies the voice of accused Sudhakar @ Diwakar in the recorded cassette, who is demanding Rs. 10 Lacs as ransom money to release her son and is giving warning to not to do any cheating and asked to do as he directed and to proceed at 06:00 pm, when he called them and come to the place, which he would suggest, when he called again.” In his cross examination he deposed as under:- “…….It is wrong to suggest that I had not personal received any telephonic call made by the person making ransom call. I had told to the police about the fact that the voice of the caller was the ‘voice of Sudhakar, who used to visit the house of Vinod, who was our neighbour’ (confronted with the statement of witness u/s 161 Cr.P.C. (Ex.PW6/P), where it is not so recorded). It is wrong to suggest that I had wrongly identified the voice in the tape recorded as that of accused Sudhakar @ Diwakar at the instance of my family members. It is wrong to suggest that I did not previously knew Sudhakar @ Diwakar. It is wrong to suggest that Sudhakar @ Diwakar had never made any ransom call

98. Prosecution witness ACP R.S. Dahiya in Judgment dated 31.05.2016, in his testimony, has deposed as under:- “On 01st March.2004, I had recorded the statement u/s 161 Cr.PC of witnesses namely Pramod and Indrawati, who had identified the voice of the accused Sudhakar @ Diwakar, which was recorded at that time, when he (Sudhakar @ Diwakar) made a call at the house of the deceased for demand of ransom money on 24th February, 2004” In his testimony dated 25.05.2007 which was used in Judgment dated 05.05.2008 he has deposed as under:- “On 01.03.04 DO received information that the voice which was played in locality was of Sudhakar, friend of Vinod who was neighbourer of deceased. On this information, accused Vinod was interrogated. He was arrested and his personal search was conducted vide memo Ex.PW9/A. He was interrogated and his disclosure statement Ex.PW8/F was recorded.

99. A perusal of the testimonies of Indrawati, Vijay Singh and ACP RS Dahiya bring out the following contradictions:- Indrawati in Judgment dated 31.05.2016 deposed She stated that she had identified voice of the ransom caller as that of Respondent NO. 2 (Sudhakar), and had told the same to the police, however, there is no mention of the same in her statement under Section 161 Cr.PC. Vijay Singh in judgment dated He stated that he had not personally heard the voice of Respondent No. 2 (Sudhakar) and he cannot say whether the voice recorded was that of Respondent No. 2 (Sudhakar) ACP R.S. Dahiya in Judgment dated In his testimony he has deposed that he recorded the statement of witnesses namely Pramod and Indrawati where they mentioned that the voice of the ransom caller was that of Respondent No. 2 (Sudhakar). However, the same is contradicted by his previous testimony dated 25.05.2007 where he deposed that the Duty officer received information from an unknown caller stating that the voice of ransom caller was that of Respondent No. 2 (Sudhakar).

100. We can, therefore, conclude that there were material contradictions in the testimonies of Prosecution Witnesses with regard to the person who recognized and informed the Investigating Agency that the ransom Caller was Respondent No. 2 (Sudhakar).

LACK OF SCIENTIFIC EVIDENCE WITH RESPECT TO THE RANSOM CALL

101. It is also pertinent to note here that the voice recording of the said ransom call is not supported by any scientific evidence. The cassette containing the recorded version of the ransom call was neither sealed in a proper manner nor was it sent to CFSL for obtaining the result of voice test. Moreover, the voice sample of Respondent No. 2 (Sudhakar) was never collected to check whether the voice of the Respondent matched with that of the ransom caller.

102. In our considerate opinion, the tape recorded conversation of the ransom caller is bereft of Scientific evidence and therefore serves as a weak piece of evidence to connect Respondent No. 2 (Sudhakar) to the said crime. In this regard, we may refer to the dicta of the Apex Court in Nilesh Dinkar Paradkar vs State Of Maharashtra reported in 2011(3)JCC 1972(SC) where the Hon’ble Court has discussed the evidentiary value of a voice recording and subsequent voice identification. The Apex Court has held as under:-