Crl.A. No. 1423 of 2010 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1423  OF 2010

GIRDHARI ..... APPELLANT

VERSUS

STATE (NCT OF DELHI) ..... RESPONDENT

O R D E R

1. Six  persons  in  all  were  sent  up  for  trial  on  two  

counts of murder relating to the abduction and murders of  

Kalu  Ram   Bhagat  and  Bodhan.   The  trial  court  in  its  

judgment discharged Ram Karan who is stated to have hired  

the  other  accused  to  commit  the  murders   and  acquitted  

Ramesh, Birju and Dharam Pal on the ground that they had not  

been identified by any of the witnesses. Girdhari and Man  

Singh were, however, convicted and sentenced to undergo life  

imprisonment on two counts as also under Section 364 of the  

Indian Penal Code, all the sentences to run concurrently.  

The  matter  was  thereafter  taken  by  way  of  two  separate  

appeals before the High Court and the High Court by the  

impugned  judgment  dated  4th February,  2009,  allowed  the  

appeal  of  Man  Singh  and  acquitted  him  whereas   Girdhari  

appellant was acquitted of the murder of Bodhan, but his

Crl.A. No. 1423 of 2010 2

conviction for the murder of Kalu Ram Bhagat  was affirmed.  

The present appeal has been filed by Girdhari alone.   

2. The facts of the case are as under:

2.1 On the 26th February,  1989, police station Nand Nagri,  

Delhi, received information that a dead body was lying near  

the brick kiln in village Simhauli. S.I. Tara Dutt - P.W. 1  

accompanied  by  Constable  Naresh  went  to  the  spot  and  

recovered the blood stained  dead body of a man who  looked  

to be between 60 and 65 years of age.  He prepared a ruqa  

Exhibit 1/A and on its basis a First Information Report for  

murder was recorded at the police station.  A search of the  

pocket of the jacket worn by the deceased revealed his name  

and address as Kalu Ram Bhagat,  resident of Trilokpuri.  

ASI Tara Dutt, accordingly, contacted the family members of  

Kalu Ram Bahgat who identified the dead body as that of  

their relative.  The dead body was sent for its post mortem  

and  it  was  found  to  have  three  incised  wounds,  four  

lacerated  wounds, and one superficial cut near the left  

ear.   The  very  next  day  i.e.  on  27th February,  1989  

information was received in Police Station Khekra, District  

Meerut, U.P.  that a dead body was lying on the banks of the  

river  Yamuna  near  village  Sudanpur.   The  body  was,  

accordingly, recovered and was also sent for a post mortem  

which revealed one incised wound on the neck which had led

Crl.A. No. 1423 of 2010 3

to the death of the deceased.  Two slips of paper Exhibits  

31/L and 31/M containing two addresses and a phone number  

were  also  recovered  from  the  clothes  of  the  deceased.  

Despite  this  information,  however,  the  police  made  no  

attempt to contact any person at the two addresses recorded  

in the slips.  In the meanwhile, the relatives of one Bodhan  

had  lodged  a  missing  person  report  with  police  station  

Trilokpuri,   Delhi,  which  was  recorded  as  a  daily  diary  

entry on that date.  On the 1st of March, 1989 a police party  

from  police  station  Khekra  finally  contacted  the  persons  

whose names had been recorded in Exhibits P 31/L and 31/M on  

which P.W.4 Mehar Chand and P.W. 26 Ranjit, the son and  

brother  respectively  of  Bodhan,  went  to  Police  Station  

Khekra and identified the body as that of Bodhan from the  

photographs that were available in the police station.  As  

the two incidents appeared to be of common origin the matter  

was officially investigated by the police of police Station  

Trilokpuri.   It  transpired  during  the  course  of  the  

investigation that Kalu Ram Bhagat, who practised witchcraft  

to cure sick persons, had been requested by Ram Karan to  

cure his children Naresh and Karan aged 11 and 8 years but  

the two children had nevertheless died a short while later.  

It also appeared that during this period Kalu Ram Bhagat had  

attempted to rape Ram Karan's wife as well and these two  

developments  had  apparently  annoyed  him  whereafter  he

Crl.A. No. 1423 of 2010 4

decided  to  do  away  with  Kalu  Ram  Bhagat  and  hatched  a  

conspiracy  with  Dharam  Pal,  Ramesh,  Man  Singh  appellant  

Girdhari and Birju, all hired assassins, who agreed to kill  

Kalu Ram Bhagat for payment of  `2 lakhs.  All the accused  

were thereafter arrested and on a disclosure statement made  

by  Girdhari,  appellant,  Exhibit  P.14/N  the  daranti,  the  

alleged murder weapon, was recovered from a sugarcane field.

2.2 On the completion of the investigation, however,  Ram  

Karan  the  prime  mover  was  discharged  as  there  was  no  

evidence  against  him  but  the  other  accused  Dharam  Pal,  

Ramesh,  Man  Singh,  Birju  and  Girdhari  were  charged  for  

offences  punishable  under  Section  364/34  and  302/34  for  

having abducted and killed  Kalu Ram Bhagat and Bodhan.  The  

matter thereafter came to trial court and in appeal to the  

High  Court  with  results  that  have  already  been  set  out  

above.   

3. We see that as of today the only person who remains  

convicted on one count of murder is the appellant Girdhari  

as he too stands acquitted for the murder of Bodhan.  The  

courts have found that the entire prosecution story rested  

on circumstantial evidence which was primarily the last seen  

evidence of  P.Ws. 2, 3, 4, 5 and 26, the  first four being  

close relatives of Kalu Ram Bhagat and P.W. 26 being a close

Crl.A. No. 1423 of 2010 5

neighbour.   In  addition  to  this  evidence  the  only  other  

evidence  against  the  appellant  is  the  recovery  of  the  

daranti  at  his  instance  which  has  been  proved  by  the  

investigating officer, P.W. 14.  

4. It has, accordingly, been argued by Mr. Gurmukh Singh,  

the learned counsel for the appellant, that but for these  

two uncertain bits of evidence there was no other evidence  

against the appellant.  He has also taken us through the  

testimony  of  these  witnesses  to  point  out  that  their  

evidence  was  also  ambivalent  and  uncertain  as  to  the  

appellant's identification.  It has, however been pointed  

out Mr. P.K. Dey, by the learned counsel for the State that  

the appellant had been identified by P.W. 3, P.W. 4 and P.W.  

26 as being the person with whom the deceased had gone on  

the day in question and had never been seen alive thereafter  

and if this evidence was taken along with the recovery of  

the daranti the chain of circumstances against him which  

stood proved beyond doubt.

5. We have considered the arguments and have gone through  

the evidence placed on record.   

6. We first come to the evidence of P.W. 2 i.e. Niranjan  

Singh, son of the deceased Kalu Ram Bhagat.  He stated in

Crl.A. No. 1423 of 2010 6

his deposition that his father had initially been picked up  

by Birju and Man Singh in a van which was being driven by  

Ramesh and did not state that Girdhari  was one of those who  

had picked him up.  The Public Prosecutor was, thereafter,  

permitted to put a leading question to the witness and at  

that stage he stated as under:

“ I had earlier told that Man Singh and  Birju had come, but infact Man Singh & Girdhari  had come, however, Birju had also come.”

7.     We are indeed surprised that a leading question could  

be permitted to be put to an accused and that too in the  

examination in chief.  It is significant that this witness  

was not declared hostile.  Likewise, we have gone through  

the evidence of P.W. 5 Ram Avatar, another son of deceased,  

Kalu Ram who could not identify Girdhari even in court and  

pointed out towards Man Singh as being Girdhari.  Reliance  

has  however,  been  placed  by  the  State  Counsel  on  the  

statements of P.Ws. 3, 4 and 26 to prove the appellants'  

identity.  We have gone through these statements as well and  

find that they do not in any manner help the prosecution.  

P.W.  3  Sushil  Kumar,  is  the  son  of  Niranjan  Singh  and,  

therefore, the grand son of Kalu Ram Bhagat.  He identified  

Man Singh and Girdhari correctly in Court and this was not  

challenged in cross examination.  We have also gone through  

the evidence of P.W. 4 Mehar Chand, son of Bodhan Singh, the  

second deceased and he did not identify the appellant in

Crl.A. No. 1423 of 2010 7

court.  Likewise, P.W. 26 -  Ranjit Singh a neighbour of  

Kalu Ram Bhagat, deposed in his examination in chief that  

the appellant was one of the persons who had taken Kalu Ram  

away  on  the  25th of  February,  1989,  but  in  his  cross  

examination  he  admitted  that  he  had  not  made  such  a  

statement to the police under Section 161 of the Cr.P.C..  

8. We therefore, find that out of the five witnesses of  

last seen only P.W. 4 has to some extent identified the  

appellant as being one of the culprits.  This identification  

was made for the first time in court during the recording of  

the evidence.  This statement, therefore, has very little  

evidentiary value. We are, therefore, of the opinion that  

this evidence does not by itself inspire confidence. The  

only other evidence against the appellant is the recovery of  

the  daranti.   The  appellant  was  arrested  on  the  14th of  

March, 1989 and was taken for the recovery of the weapon on  

the very same day.  Curiously, however, we see the recovery  

memo Exhibit 14/O dated 14th of March, 1989 has not been  

witnessed by any one and bears the signatures of only the  

police officer.   We are, therefore of the opinion that no  

credence can be attached to such a recovery as well more  

particularly, as the other evidence is extremely sketchy and  

uncertain.  We need to reiterate that Ram Karan the main  

accused who had hired the other five to do away with Kalu

Crl.A. No. 1423 of 2010 8

Ram Bhagat was discharged by the trial court due to lack of  

evidence whereas four of the other accused had earlier been  

acquitted on virtually the same evidence.  We are of the  

opinion that the appellant Girdhari‘s case cannot, be in any  

manner, be distinguished from that of the other accused.  

We, accordingly, allow this appeal and order his acquittal.

........................J [HARJIT SINGH BEDI]

........................J NEW DELHI [GYAN SUDHA MISRA] JULY 14, 2011.

Crl.A. No. 1423 of 2010 9

ITEM NO.110[PART-I]           COURT NO.7             SECTION II

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS

              CRIMINAL APPEAL NO(s). 1423 OF 2010

GIRDHARI                                          Appellant (s)

                VERSUS

STATE(GOVT.NCT OF DELHI)                          Respondent(s) (With appln(s) for suspension of sentence)

Date: 14/07/2011  This Appeal was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE HARJIT SINGH BEDI         HON'BLE MRS. JUSTICE GYAN SUDHA MISRA

For Appellant(s)  Mr. Gurmukh Singh, Adv.                     Mr. Abhijat P. Medh, Adv.

For Respondent(s)   Mr. P.K. Dey, Adv.   Mr. Mukesh Verma, Adv.

                    Mrs Anil Katiyar, Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

We have heard the learned counsel for the  

parties.

Vide our separate reasoned order, we have  

allowed this appeal and ordered the acquittal of  

the appellant.

   It is stated that the appellant Girdhari is  

in custody.  He shall be released forth with if  

not wanted in connection with any other case.  

The  reasoned  order  shall  be  separately  

placed on record.   

[KALYANI GUPTA] COURT MASTER

[VINOD KULVI] COURT MASTER

Crl.A. No. 1423 of 2010 10

[SIGNED BRIEF ORDER IS PLACED ON THE FILE.]

Crl.A. No. 1423 of 2010 11

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1423  OF 2010

GIRDHARI ..... APPELLANT

VERSUS

STATE (NCT OF DELHI) ..... RESPONDENT

O R D E R

We  have  heard  the  learned  counsel  for  the  

parties.

Vide our separate reasoned order, we have allowed  

the appeal and ordered the acquittal of the appellant  

herein.

It is stated that the appellant Girdhari is in  

custody.  He shall be released forth with if not wanted  

in connection with any other case.  

The reasoned order shall be separately placed on  

record.   

........................J [HARJIT SINGH BEDI]

........................J [GYAN SUDHA MISRA]

NEW DELHI JULY 14, 2011.