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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

18

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.  

19

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

20

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

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