Rajender @ Rajesh @ Raju Vs State (nct of Delhi)

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1889 OF 2010

Rajender @ Rajesh @ Raju .....Appellant

Versus

State (NCT of Delhi) .....Respondent WITH

CRIMINAL APPEAL NO. 1890 OF 2010

Raj Kumar @ Raju .....Appellant

Versus

State (NCT of Delhi) .....Respondent WITH

CRIMINAL APPEAL NO. 2377 OF 2014

Sharda Jain .....Appellant

Versus

State (NCT of Delhi) .....Respondent

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. The judgment dated 27.08.2009 passed by the High Court

of Delhi in Criminal Appeal Nos. 144 of 2007 and 51 of 2007

1

has been called in question in the instant appeals. By the

impugned judgment, the High Court affirmed the order of

conviction passed by the Trial Court against Sharda Jain (A-1),

Raj Kumar (A-2), Pushpender (A-3), Nirvikar (A-4), Rajender (A-

5) and Roshan Singh (A-6) for offences under Section 302 r/w

120-B and Section 364 r/w 120-B of the Indian Penal Code

(hereinafter ‘IPC’). Sharda Jain, Raj Kumar, and Roshan Singh

were also convicted under Section 201 r/w 120-B of the IPC.

2. The case of the prosecution in brief is that Atma Ram

Gupta (hereinafter ‘deceased’) who was a Councillor of the

Municipal Corporation of Delhi (hereinafter “MCD’) went

missing on 24.08.2002. On that day, he left

his residence around 10.30 a.m. informing his wife Sumitra

Gupta (PW-18) that he would first be going to the house of

another Councillor of the MCD, Sharda Jain (A-1) and then be

proceeding to attend a Congress Party rally at the Ferozshah

Kotla Grounds along with her. His driver, Prabhu Yadav (PW-17)

drove him to the residence of Sharda Jain and upon reaching

there, the deceased instructed the driver to take the car back

to their residence. When the deceased did not return home

until evening, enquiries were made by his wife and family

2

members. A missing report was consequently lodged at 1 a.m.

on 25.08.2002. Ultimately, the body of the deceased was found

on 31.08.2002 in a sub-canal of the Bulandshar Rajwaha/Sanota

Canal. A charge sheet came to be filed against nine accused,

namely, Sharda Jain (A-1), Raj Kumar (A-2), Pushpender (A-3),

Nirvikar (A-4), Rajender (A-5), Roshan Singh (A-6), Shri Pal

Singh Raghav (A-7), Satender Kumar (A-8) and Rakesh Kumar

(A-9). All the accused were tried before the Fast Track Court,

Rohini in S.C. No. 139 of 2006.

3. The Trial Court convicted Sharda Jain (A-1), Raj Kumar

(A-2), Pushpender (A-3), Nirvikar (A-4), Rajender (A-5) and

Roshan Singh (A-6) for the charges framed against them. As

regards the other three accused Shri Pal Singh Raghav (A-7),

Satender Kumar (A-8) and Rakesh Kumar (A-9), the Trial Court

found that they were not party to the conspiracy hatched by

the other convicted persons. However, they were convicted

under Section 201 IPC for causing disappearance of evidence.

4. All the six accused (A-1 to A-6) filed criminal appeals

before the High Court, namely, Criminal Appeal Nos. 19 of

2007, 51 of 2007, 121 of 2007, 139 of 2007, 144 of 2007

and 65 of 2007. After re-appreciating the entire material on

3

record, the High Court dismissed Criminal Appeal Nos. 51 of

2007, 139 of 2007 and 144 of 2007 and allowed Criminal

Appeal Nos. 19 of 2007, 121 of 2007 and 65 of 2007. In effect,

the conviction of Sharda Jain (A-1), Raj Kumar (A-2), Rajender

(A-5) and Roshan Singh (A-6) was affirmed, while the other

accused Pushpender (A-3), Nirvikar (A-4), Shri Pal Singh Raghav

(A-7), Satender Kumar (A-8) and Rakesh Kumar (A-9)

were acquitted.

5. The convicted persons have approached this Court in the

instant appeals. Among them, Roshan Singh (A-6) who had filed

Appeal No. 1888 of 2010 expired on 02.05.2017 and his appeal

has therefore been dismissed as abated. Accordingly, only the

appeals filed by Sharda Jain (A-1), Raj Kumar (A-2) and

Rajender (A-5) were heard and have been decided by this

common judgment.

6. It is the case of the prosecution that Sharda Jain (A-1) had

developed close relations with the deceased. When he began

ignoring her for another woman, she hatched a conspiracy with

her brother, Raj Kumar (A-2) and two other persons, Rajender

(A-5) and Roshan Singh (A-6) to murder him. Pursuant to this,

the deceased was taken to village Chajjupur in her car, where

4

two hired assassins, namely, Pushpender (A-3) and Nirvikar (A-

4), shot him dead. It is alleged that the dead body was disposed

of with the help of three police officers, namely, Shri Pal Singh

Raghav (A-7), Satender Kumar (A-8), and Rakesh Kumar (A-9)

who threw it in a canal.

7. There are no eye witnesses to the incident in question.

The case of the prosecution fully rests on circumstantial

evidence, which has been used to weave a chain that points to

the guilt of each of the convicted persons.

7.1 With respect to Sharda Jain (A-1), the Trial Court and the

High Court have considered the following circumstances:

(a) that she pointed out the place of the murder of the

deceased;

(b) that the deceased was last seen alive in her company

and that the time gap between the last seen and the time

of death of the deceased is so small that it makes the

possibility that the deceased could have come in the

contact of any other person too remote;

(c) no plausible explanation has been given by her as to

how and when the deceased parted company with her on

24.08.2002;

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(d) a false claim was made by her that she did not visit

Ghaziabad on 24.08.2002;

(e) she misled the family members of the deceased

when they made enquiries from her about the

whereabouts of the deceased;

(f) two meetings took place between Sharda Jain, Raj Kumar,

Rajender and Roshan Singh at the residence of Sharda

Jain, just a few days prior to 24.08.2002;

(g) her conduct of visiting the house of her driver, Om

Prakash in the late hours of the night on 24.08.2002 is

suspicious;

(h) that she had motive to kill the deceased.

7.2 As regards Raj Kumar (A-2), the brother of Sharda Jain, the

lower Courts have considered the following circumstances:

(a) that he visited the house of Sharda Jain (A-1) on two

occasions along with two other persons just a few days

prior to 24.08.2002;

(b) that he pointed out the place of the murder of the

deceased;

(c) that his place of residence was in the vicinity of the place

of murder of the deceased;

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(d) that he did not controvert the fact of acquaintance with

other co-accused, Rajender (A-5) and Roshan Singh (A-6);

and

(e) that the wrist watch of the deceased was recovered at his

instance.

7.3 As regards Rajender (A-5), the Trial Court and the High

Court have considered the following circumstances:

(a) that the deceased was last seen alive in his company and

that the time gap between the last seen and time of the

death of the deceased is so small that it makes the

possibility that the deceased could have come in the

contact of any other person too remote;

(b) no plausible explanation has been given by him as to

how and when he parted company with the deceased on

24.08.2002;

(c) that he has not controverted the fact that he used to

drive the car of Roshan Singh (A-6) on a temporary basis

and therefore, he was associated with Roshan Singh;

(d) that he made a false claim about never having visited the

house of Sharda Jain (A-1);

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(e) that he refused to participate in the test identification

parade (TIP) and the reasons for such refusal are not

plausible.

8. Upon considering the aforementioned circumstances and

appreciating the material on record, the High Court found that

the chain of circumstances as against Sharda Jain (A-1), Raj

Kumar (A-2), and Rajender (A-5) was complete and it was

proven that these persons had entered into a conspiracy to

murder the deceased. Accordingly, the conviction of these

persons under Sections 302 and 364 read with Section 120-B,

IPC was affirmed.

9. It is well-settled that in cases where the prosecution relies

on circumstantial evidence to establish its case, such

circumstances should be duly proved and the chain of

circumstances so proved should be complete. This means that

the chain formed must unerringly point towards the guilt of the

accused and not leave any missing links for the accused to

escape from the clutches of law. Further, with respect to

conspiracy, it is trite law that the existence of three elements

must be shown– a criminal object, a plan or a scheme

embodying means to accomplish that object, and an agreement

8

or understanding between two or more people to cooperate for

the accomplishment of such object.

10. In light of these observations, we shall proceed to examine

the cases of each of the three appellants, Sharda Jain (A-1), Raj

Kumar (A-2) and Rajender (A-5) in order.

Sharda Jain (A-1)

11. As mentioned supra, the lower Courts have considered

various circumstances against Sharda Jain (A-1). While some

circumstances used by the Trial Court have been found to be

proven by the High Court as well, some others have been ruled

out. For the purpose of our consideration, given that the

learned Counsels for both sides have premised their arguments

on the circumstances finally used by the High Court to establish

the guilt of Sharda Jain, we will be adverting to each of those in

turn.

11.1 To prove the first circumstance of Sharda Jain pointing

out the place of the murder of the deceased (hereinafter ‘Spot

A’), the prosecution has examined police officials, namely,

Inspector V.S. Meena (PW-62), HC Sunita (PW-31), SI Ram

Kumar (PW-32), SI Anil Kumar Chauhan (PW-44), and SI Shiv Raj

Singh (PW-55). It also examined one Mahender Pal Gupta (PW-

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8), but the High Court has entirely disbelieved his testimony

due to several discrepancies. We agree with the reasons

assigned by the High Court for disbelieving the testimony of

PW-8.

Apart from this, with respect to the evidence of the police

officials who accompanied Sharda Jain (A-1) to Spot A, i.e. PW-

62, PW-31, PW-32, PW-44 and PW-55, we find that their

evidence cannot be discarded. These prosecution witnesses

have withstood the test of cross-examination and clearly stated

that Spot A was not in the knowledge of the police up until

28.08.2002, which is when Sharda Jain (A-1) took the police

officials to this spot. We do not find any valid ground to

disbelieve their testimony, particularly when they are

independent, unbiased police officials. There was no reason for

them to falsely depose against Sharda Jain, who was also a

public servant, being a Councillor of the MCD. Therefore, in our

considered opinion, the circumstance of Sharda Jain pointing

out the place of the murder of the deceased is proved.

11.2 To establish the second circumstance that the deceased

was last seen alive in the company of Sharda Jain, the

prosecution has examined Sumitra Gupta (PW-18), Prabhu

10

Yadav (PW-17), Om Prakash Chauhan (PW-11), and Manish

Kumar (PW-14).

In her testimony, PW-18 (wife of the deceased) has stated

that on the morning of 24.08.2002, when the deceased was

leaving the house, he told her that he would be going to the

residence of Sharda Jain. Further, PW-17 (the driver of the

deceased) has deposed that he drove the deceased to the

residence of Sharda Jain at about 10.30 a.m. on 24.08.2002.

Likewise, Om Prakash Chauhan (PW-11), who is the driver of

Sharda Jain, has stated that the deceased came to the house of

Sharda Jain in a car driven by PW-17 and thereafter sent the car

back to his residence. He has also deposed that he was driving

the car of Sharda Jain in which the deceased and Sharda Jain

were sitting and they were heading towards the Ferozshah

Kotla Grounds, Delhi to attend a Congress party rally. Notably,

none of these statements have been controverted by the

defence.

In addition to this, Manish Kumar (PW-14) has stated that,

as a matter of chance, he saw the deceased at this rally,

around 12 noon. Thereafter, he saw him leave in a car where

Sharda Jain was also seated. It is well-established that the

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testimony of a chance witness, though not necessarily false, is

proverbially unsafe to rely upon. It is for this reason that the

High Court chose not to rely on the evidence of PW-14 with

respect to the circumstance of last seen of the deceased.

However, it was found that the evidence of the other witnesses,

viz. Sumitra Gupta (PW-18), Prabhu Yadav (PW-17), and Om

Prakash Chauhan (PW-11) conclusively proved that the

deceased went to the house of Sharda Jain, sent his car back to

his house, and then went with Sharda Jain and attended the

rally in the afternoon of 24.08.2002.

During her examination under Section 313 of the Code of

Criminal Procedure (hereinafter ‘Cr.P.C.’), Sharda Jain (A-1) has

admitted that the deceased was present with her till the

afternoon of 24.08.2002. The law on the point is very clear. A

statement made by an accused under Section 313, Cr.P.C. can

be used as an aid to lend credence to the evidence led by the

prosecution. Therefore, in light of the testimonies of PW-18,

PW-17, and PW-11, as well as the statement of Sharda Jain, we

find that the prosecution has proved that the deceased was

present with Sharda Jain (A-1) in the afternoon of 24.08.2002

and was not seen alive by anyone after such time.

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Having observed so, it is crucial to note that the

reasonableness of the explanation offered by the accused as to

how and when he/she parted company with the deceased has a

bearing on the effect of the last seen in a case. Section 106 of

the Indian Evidence Act, 1872 provides that the burden of proof

for any fact that is especially within the knowledge of a person

lies upon such person. Thus, if a person is last seen with the

deceased, he must offer an explanation as to how and when he

parted company with the deceased. In other words, he must

furnish an explanation that appears to the Court to be probable

and satisfactory, and if he fails to offer such an explanation on

the basis of facts within his special knowledge, the burden cast

upon him under Section 106 is not discharged. Particularly in

cases resting on circumstantial evidence, if the accused fails to

offer a reasonable explanation in discharge of the burden

placed on him, such failure by itself can provide an additional

link in the chain of circumstances proved against him. This,

however, does not mean that Section 106 shifts the burden of

proof of a criminal trial on the accused. Such burden always

rests on the prosecution. Section 106 only lays down the rule

that when the accused does not throw any light upon facts

13

which are specially within his/her knowledge and which cannot

support any theory or hypothesis compatible with his

innocence, the Court can consider his failure to adduce an

explanation as an additional link which completes the chain of

incriminating circumstances.

Notably, a circumstance of last seen does not, by itself,

necessarily lead to an inference that the accused committed

the crime. There must be something more that establishes a

connection between the accused and the crime. For instance,

there may be cases where close proximity between the event

of last seen and the factum of death may persuade a rational

mind to reach the irresistible conclusion that the last seen of

the deceased is material and merits an explanation from the

accused.

In the instance case, there is proximity between the time

of last seen of the deceased with Sharda Jain and the time of

his death. As mentioned supra, it is proved that the deceased

was last seen with Sharda Jain on 24.08.2002. It has also been

shown that the deceased expired on 24.08.2002, as indicated

in the testimony of Dr. S.K. Aggarwal (PW-21) who conducted

the post-mortem examination of the deceased at 2.30 p.m. on

14

31.08.2002. He has deposed that the probable date of death of

the deceased was about a week prior to the post-mortem

examination, i.e. on 24.08.2002. Thus, the proximity between

the time of last seen and the time of death of the deceased is

established. This, in turn, connects the accused to the crime in

question.

Further, the records show that the place of murder of the

deceased was a secluded area. In such a scenario, given that

the deceased had last been seen with Sharda Jain, the

explanation given by her as to how she parted company with

the deceased becomes crucial. In her statement under Section

313, Cr.P.C., she has stated that she parted company with the

deceased on the afternoon of 24.08.2002, when the deceased

got down from her car at the Inter State Bus Terminus (I.S.B.T.).

This explanation has been disbelieved by the lower Courts in

light of the conduct of Sharda Jain prior and subsequent to the

incident in question – she did not depose about her movements

on 24.08.2002 after the deceased allegedly got down from her

car at I.S.B.T., and she also denied being in the vicinity of Spot

A on 24.08.2002. Both these claims have been found to be

false by the Trial Court and the High Court and thereby

15

undermine the explanation offered by her on how she parted

with the deceased. We find that the explanation given by

Sharda Jain is also falsified by the evidence of her driver, Om

Prakash Chauhan (PW-11). PW-11 has emphatically deposed

that he got down from the car at I.S.B.T. and the deceased

proceeded on the onward journey to Ghaziabad along with

Sharda Jain and Rajender (A-5), who were also seated in the

car. There is no reason for PW-11 to depose against Sharda

Jain, especially since he was her driver. Thus, having regard to

the material on record, we find that the Courts below are

justified in concluding that the deceased was last seen in the

company of Sharda Jain and that the time gap between the last

seen and the time of the death of the deceased is so small so

as to make it impossible for the deceased to come in the

contact of any other person. Further, since no plausible

explanation has been given by Sharda Jain as to how and when

she parted company with the deceased on

24.08.2002, this forms a link in the chain of incriminating

circumstances against her.

11.3 We now turn to the third circumstance that a false claim

was made by Sharda Jain that she did not visit Ghaziabad

16

on 24.08.2002. In this regard, the testimony of Om Prakash

Chauhan (PW-11) is again relevant. He has deposed that

on 24.08.2002, when the deceased and Sharda Jain returned

from the rally, Sharda Jain had instructed him to go towards

Ghaziabad. As mentioned supra, PW-11 is a reliable witness

who has withstood the test of cross-examination. Thus, his

testimony establishes that the car of Sharda Jain was to be

driven to Ghaziabad on 24.08.2002. In addition to this, it is

relevant that mud having similar characteristics as soil found at

Spot A was found stuck on the car of Sharda Jain. In her

statement under Section 313, Cr.P.C., she has not given any

explanation as to why such mud was there on her car or as to

her whereabouts after the rally on 24.08.2002. Given that she

was uniquely placed to explain these facts, we agree with the

High Court that an inference can be drawn that Sharda Jain was

present at or around Ghaziabad on 24.08.2002 which

is close to the place where the incident in question has

occurred.

This is also supported by the mobile records of Sharda

Jain, which show that she visited Ghaziabad on 24.08.2002.

Though the High Court has held that these records have not

17

been proved, as no certificate was issued in terms of Section

65-B(4) of the Indian Evidence Act, 1872, we find that these

records can be relied upon. This is because an objection

relating to the non-production of a certificate under

Section 65-B(4) relates to the mode and method of proof and

cannot be raised at the appellate stage as has been held by

this Court in Sonu v. State of Haryana, (2017) 8

SCC 570. In that case, an objection regarding the mode/method

of proof of call detail records (CDRs) of mobile phones

recovered from the accused was raised for the first time before

the Supreme Court. Drawing a distinction between objections

relating to admissibility or relevance of facts and objections as

to the mode or method of proof of facts, the Court observed as

follows:

“32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65-B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court

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could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 CrPC, 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.”

(emphasis supplied)

Applying this to the instant case, we find that the

objection as to the reliability of the call records of Sharda Jain

on account of non-compliance with the procedure under

Section 65-B(4) was raised for the first time before the High

Court. Since no such objection was raised at the time of

marking of these records before the Trial Court, we find that

these records can be considered.

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A perusal of these call records shows that Sharda Jain had

visited Ghaziabad on 24.08.2002. Thus, in light of this, and the

other circumstances discussed above, we find that it is proved

that Sharda Jain made a false claim in her examination under

Section 313, Cr.P.C. that she did not visit Ghaziabad

on 24.08.2002.

11.4 The fourth circumstance relates to Sharda Jain

misleading the family members of the deceased about his

whereabouts. In this regard, Sumitra Gupta (PW-18) and

Rajender Pal Gupta (PW-9; younger brother of the deceased),

have deposed that Sharda Jain gave misleading and false

answers to them when they made enquiries from her about the

whereabouts of the deceased. In our considered opinion, the

High Court has correctly relied upon the evidence of these

witnesses to conclude that Sharda Jain had given a false

explanation to the family members of the deceased about his

whereabouts.

11.5 The fifth circumstance against Sharda Jain concerns her

conduct of visiting the house of her driver (PW-11) in the late

hours of night of 24.08.2002. Om Prakash Chauhan (PW-11) has

deposed that Sharda Jain had sent a fat man to his residence in

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the late hours of 24.08.2002 and the said person had told him

that Sharda Jain is calling him. This fact has not been

controverted by the defence. Likewise, the evidence of his

mother, Shanti (PW-10) that a boy came to her house and told

her that Sharda Jain was calling Om Prakash has also not been

controverted. Admittedly, there was some vagueness in the

evidence of PW-10, but in our considered opinion, given that

she is a rustic woman, the High Court was justified in reading

her evidence harmoniously with that of PW-11. Since the scene

of murder in the present case is rural, the Court should judge

the matter after accounting for the rustic behavioral pattern of

the witnesses and not adopt extremely sophisticated

approaches familiar in courts based on unreal assumptions

about human conduct. Keeping this in mind, it becomes clear

that when Shanti (PW-10) was told by the boy that Sharda Jain

is calling her son, she perceived that Sharda Jain was present

outside her house. It is on the basis of this perception that she

deposed that Sharda Jain had come to her house. However, a

combined reading of the testimonies of PW-11 and PW-10

establishes that Sharda Jain tried to contact her driver (PW-11)

on 24.08.2002. This conduct of attempting to establish contact

21

with her driver in the late hours of the day of the incident,

raises a strong suspicion against Sharda Jain and indicates an

attempt to request or pressurize PW-11 to not disclose the

incident to any other person.

11.6 Lastly, as regards the motive of Sharda Jain based on her

close relations with the deceased and her discontent with his

growing relationship with another woman, (Memwati Berwala),

we agree with the High Court. The material on record is

insufficient to prove that the deceased had intimate relations

with Sharda Jain or Memwati Berwala. At best, the evidence on

record indicates that the deceased and Sharda Jain were good

friends. Thus, the High Court has rightly concluded that the

motive, as put forth by the prosecution, is not proved.

12. Be that as it may, the foregoing discussion on the other

circumstances against Sharda Jain clearly establishes that she

was last seen in the company of the deceased in the afternoon

of 24.08.2002, which is the day on which he went missing and

was killed. Further, it is established that she was going with the

deceased to Ghaziabad on that day and was the first to point

out the place of murder to the police. In addition to this, she

has made false claims as to the whereabouts of the deceased

22

as well as her actions post the afternoon of 24.08.2002. In light

of all these circumstances, we find that the prosecution has

succeeded in making a case against her for the offence under

Section 302, IPC. Further, given that the body of the deceased

was recovered from a sub-canal, and not from the place of

commission of murder, it is clear that the evidence of the

offence was caused to be disappeared and the involvement of

Sharda Jain (A-1) was screened through false claims. Thus,

charge under Section 201 of the IPC is also proved.

Raj Kumar (A-2)

13. With respect to Raj Kumar (A-2), two circumstances merit

our consideration – first, that he visited the house of Sharda

Jain along with two other persons on two occasions just a few

days prior to 24.08.2002; and second, that the wrist

watch of the deceased was recovered by the police at his

instance.

13.1 With respect to the first circumstance, we agree with the

High Court that there is nothing incriminating in this conduct of

Raj Kumar (A-2). Being the brother of Sharda Jain, it is but

natural for him to visit her house frequently. Merely because he

visited her house on two occasions, just a few days before the

23

date of incident, an inference cannot be drawn that these visits

were for conspiring to commit the murder of the deceased. In

any case, it is not clear from the material on record as to who

were the other two persons who accompanied him to the house

of Sharda Jain and how many days prior to date of the incident

were such visits made. Thus, in our considered opinion, this

circumstance has not been proven against Raj Kumar.

13.2 The second circumstance is that the wrist watch of the

deceased was recovered at the instance of Raj Kumar. To prove

this circumstance, the prosecution examined police officials,

namely, Inspector V.S. Meena (PW-62), Anil Kumar Chauhan

(PW-44), and SI Shiv Raj Singh (PW-55). These officials have

deposed that on 28.08.2002, Raj Kumar got the wrist

watch of the deceased recovered from behind a speaker kept

at a ventilator in the balcony of his house. It is further claimed

by the prosecution that the watch so recovered was deposited

in the malkhana on the same date, i.e. 28.08.2002.

Before we discuss these claims, it is important to bear in

mind that the instant case is not that of a robbery. Being an

affluent businessman, Raj Kumar cannot be expected to have

committed the theft of a wrist watch. Moreover, the wrist watch

24

seized from his house was identified by one Rajender Pal Gupta

(PW-9), who resides about 10 km away from the residence of

the deceased. In his cross-examination, PW-9 has admitted that

he went to the spot of the murder on 31.08.2002 and that the

wrist watch was still on the hand of the deceased at that time.

However, as mentioned supra, Inspector V.S. Meena (PW-62)

has deposed that the wrist watch of the deceased was

deposited by him in the malkhana on 28.08.2002. This is

supported by the testimony of Dinesh Kumar (PW-43) who has

also deposed that the said wrist watch was deposited in the

malkhana on 28.08.2002 and that he had made an entry in the

malkhana register accordingly. Clearly, the testimony of the

police officials directly belies the evidence of PW-9. However,

given that these officials are independent, unbiased witnesses

and the fact that none of the close family members of the

deceased were called on to identify his wrist watch, we are

inclined to believe the testimony of these officials. Thus, it

appears that the prosecution has tried to improve its case by

planting the said wrist watch so as to falsely implicate Raj

Kumar in this case. In light of this, we find that the prosecution

has failed to prove the recovery of the wrist watch at the

25

instance of Raj Kumar (A-2). Given that the High Court had

sustained the conviction of A-2 primarily on the basis of this

recovery, we are of the opinion that he should given the benefit

of doubt.

13.3 As regards other circumstances considered by the lower

Courts against Raj Kumar (A-2), we find that there is no

adequate material brought on record. As mentioned supra, the

place of the incident (Spot A) was first shown by Sharda Jain

and not by A-2. Clearly, there cannot be a discovery of an

already discovered fact. Moreover, merely because A-2 knew

the other accused Rajender (A-5) and Roshan Singh (A-6), it

cannot be said that he was complicit in the commission of a

crime with them. Something more such as a common criminal

object, or a plan or scheme to achieve it must be shown to

prove the complicity of A-2. In our considered opinion, the

entire evidence on record is insufficient to bring home the guilt

of Raj Kumar (A-2). Accordingly, he deserves to be acquitted for

the charges framed against him.

Rajender (A-5)

14. With respect to Rajender (A-5), the major circumstances

considered by the High Court are that the deceased was last

26

seen alive in his company on 24.08.2002; that the time gap

between the last seen and the time of the death of the

deceased is so small that it makes it impossible that the

deceased could have come in the contact of any other person;

and that no plausible explanation has been given by Rajender

(A-5) as to how and when he parted company with the

deceased on 24.08.2002.

14.1 As regards the circumstance relating to the last seen of

Rajender (A-5), it is relevant to note that the driver of the

deceased (PW-17) has deposed that he drove the deceased to

the residence of Sharda Jain in the morning of 24.08.2002. This

is corroborated by the testimony of Om Prakash Chauhan (PW-

11) who has deposed that the deceased arrived at the

residence of Sharda Jain in the morning, sent back his car with

PW-17, and then proceeded to the rally with Sharda Jain in a car

that he was driving. As mentioned supra, PW-11 has also

deposed that while coming back from the rally, Rajender (A-5),

the deceased and Sharda Jain were in the same car which was

being driven by him towards Ghaziabad. It was during this

journey that Sharda Jain instructed him to get down from the

car near I.S.B.T. and go back to his house. Accordingly, PW-11

27

got down from the car at I.S.B.T. and left the company of the

accused and the deceased. From that point onwards, it is

stated that Rajender (A-5) was driving the vehicle.

The testimony of Om Prakash Chauhan (PW-11) was

vehemently challenged by the defence. During his cross-

examination, many suggestions were made to him, but they

were all turned down. In light of his reliable testimony, we do

not find any ground to disagree with the reasoning adopted by

the lower Courts to conclude that the last seen circumstance in

respect of Rajender (A-5) stands proved. Further, it is important

to note that no explanation is forthcoming from Rajender (A-5)

as to how and when he parted company with the deceased

which thus becomes an additional link in the chain of

circumstances.

14.2 In addition to this Rajender (A-5) has admitted that he

was the driver of the car of Roshan Singh (A-6) on a temporary

basis. This establishes his association with another convicted

person in this case. Notably, this connection has not been

controverted. Moreover, it has been found that the claim made

by Rajinder Singh (A-5) that he has never visited the house of

Sharda Jain is false. This is clear in light of the reliable evidence

28

of Om Prakash Chauhan (PW-11) who has stated that Rajender

(A-5), Sharda Jain, and the deceased had left from the house of

Sharda Jain to proceed for the rally at the Ferozshah Kotla

Grounds.

14.3 Another circumstance against Raj Kumar relates to the

place of the murder of the deceased. It has been proved that

Spot A is the place of the incident. On a close perusal, the

evidence on record reveals that the car in which the deceased,

Sharda Jain, and Rajender (A-5) were seated went up to this

spot on 24.08.2002. This is evident from the fact that the mud

found stuck to the tyres of the car of Sharda Jain had similar

physical characteristics as the soil found at spot A. Moreover,

the car of Sharda Jain was found by the police at her residence

on 27.08.2002. No explanation has been given by Rajender as

to his movements on 24.08.2002 or any time thereafter. If it

were the case that the car of Sharda Jain, (which has been

proved to be driven by Rajender), had not gone to Spot A, the

mud of the scene of the offence would not have been found

stuck to the tyre of the car. However, this is not the case. Thus,

we find that this circumstance indicates the involvement of

Rajender (A-5) in the commission of the crime.

29

15. In light of the foregoing discussion, it is proved that

Rajender was driving the car in which the deceased was last

seen with him and Sharda Jain (A-1). Further, it is also proven

that this car went up till Spot A, which is the place of the

incident as is evident from the existence of the mud from the

spot on the tyres of the car. In the absence of any plausible

explanation put forth by Rajender as to his actions on

24.08.2002 and thereafter, and given the totality of material on

record, we find that the circumstances considered against him

establish his complicity in committing the murder of the

deceased. The lower Courts, were therefore, justified in

convicting him under Section 302 of the IPC. In addition to this,

given the false claims made by him and the fact that the body

of the deceased was recovered from a sub-canal where it had

been thrown, charge under Section 201 of the IPC is also

established against Rajender (A-5).

16. However, as regards the charge of conspiracy, we do not

find that the conduct of Sharda Jain (A-1) and Rajender (A-5)

constitutes a criminal conspiracy to murder the deceased.

Strangely, the High Court has observed that the prosecution

has proven that Sharda Jain was complicit in such a conspiracy.

30

However, on a closer reading of the impugned judgment, we

find that the High Court has not assigned any appropriate

reasoning for arriving at this conclusion. Merely observing that

it has been proven that A-1 and A-5 were complicit in a

conspiracy to murder the deceased is insufficient to conclude

the existence of such a conspiracy. As mentioned supra, three

essential elements must be shown – a criminal object, a plan or

scheme embodying means to accomplish that object, and an

agreement between two or more persons to cooperate for the

accomplishment of such object. Admittedly, the incorporation

of Section 10 to the Indian Evidence Act, 1872, suggests that

proof of a criminal conspiracy by direct evidence is not easy to

get. While we acknowledge this constraint, we do not find any

discussion by the High Court on what circumstances indicate

the existence of the essential elements of a criminal conspiracy

in the instant case. On going through the entire material on

record, we find that a criminal conspiracy has not been proved

in the instant case. Thus, the charge against Sharda Jain (A-1)

and Rajender (A-5) under Section 120-B, IPC for conspiring to

murder the deceased cannot be sustained. Be that as it may,

31

we find that their acts have been done in pursuance of a

common intention and attract Section 34 of the IPC.

17. Having considered the entire evidence on record in proper

perspective, we conclude that the prosecution has proved the

aforementioned circumstances against A-1 and A-5, which form

a complete chain pointing towards their guilt. In the absence of

any missing links, they cannot be given a chance to escape

from the clutches of law.

18. In view of the foregoing discussion, the following order is

made:

(a) Criminal Appeal No. 2377 of 2014 filed by Sharda Jain

(A-1) is dismissed. The judgment and order of

conviction passed against her stands affirmed for the

offences under Sections 302 and 201 read with Section

34, IPC. Vide order dated 18.03.2015 passed by this

Court, Sharda Jain (A-1) was granted bail. Accordingly,

her bail bonds are cancelled. She shall be taken into

custody immediately to serve out the remainder of her

sentence.

(b) Criminal Appeal No. 1889 of 2010 filed by Rajender

(A-5) is dismissed. The judgment and order of

32

conviction passed against him stands affirmed for the

offences under Sections 302 and 201 read with Section

34, IPC. Vide order dated 18.03.2015 passed by this

Court, Rajender (A-5) was granted bail. Accordingly, his

bail bonds are cancelled. He shall be taken into custody

immediately to serve out the remainder of his sentence.

(c) Criminal Appeal No. 1890 of 2010 is allowed and the

appellant Raj Kumar (A-2) is acquitted of the charges

framed against him. Vide order dated 18.03.2015

passed by this Court, Raj Kumar (A-2) was granted bail.

His bail bonds stand discharged accordingly.

..........................................J. (Mohan M.

Shantanagoudar)

..........................................J. (Ajay

Rastogi)

New Delhi; October 24, 2019

33

RAJENDER @ RAJESH @ RAJU Vs STATE (NCT OF DELHI)

RAJENDER @ RAJESH @ RAJU Vs STATE (NCT OF DELHI)