GIRDHARI Vs STATE(GOVT.NCT OF DELHI)
Bench: HARJIT SINGH BEDI,GYAN SUDHA MISRA, , ,
Case number: Crl.A. No.-001423-001423 / 2010
Diary number: 9187 / 2009
Advocates: ABHIJAT P. MEDH Vs
ANIL KATIYAR
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.