* IN THE HIGH COURT OF DELHI AT NEW DELHI.... Respondent

Transcription

1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL NO.17/1995 Judgment delivered on : July 3, 2009 SOHAN SAHAI... Appellant versus STATE WITH... Respondent + CRIMINAL APPEAL NO.21/1995 ASAD ASAR BAI... Appellant versus STATE... Respondent AND + CRIMINAL APPEAL NO.106/1995 MUNNA LAL... Appellant versus STATE... Respondent Advocates who appeared in these cases:- For the Appellants: Ms Charu Verma For the Respondents : Mr M N Dudeja CORAM: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MR. JUSTICE AJIT BHARIHOKE Crl.A.Nos.17/95, 21/95, 106/95 Page 1 of 21

2 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in Digest? AJIT BHARIHOKE, J. 1. These three appeals are directed against the judgment as also order on sentence both dated 31 st October 1994 passed by learned Additional Sessions Judge in Session s Case No.18/1994 arising out of FIR No.31/1989 under Section 302/34 IPC, P.S. Samepur Badli. Learned trial Judge vide aforesaid judgment and order on sentence has convicted the appellants for the offence punishable under Section 302 read with section 34 of the Indian Penal Code (in short `IPC ) and sentenced them to undergo imprisonment for life and also to pay a fine of Rs.500/- each and, in default of payment of fine, to undergo further simple imprisonment for a period of three months respectively. 2. Briefly stated, case of the prosecution is that on the night intervening 11 th and 12 th February 1989 PW-1 Laik Ram, who was security supervisor in Ishvaku India Pvt. Ltd., visited police post Prashant Vihar at around 3.00 AM and informed that on the fateful night at about 2.30 AM when he had gone to check his security staff at Plot No.4, Sector-9, Rohini he was informed by Villan Jamadar that one Surat Ram has been murdered in the jhuggies of Sain Baba Housing Society. His statement to that effect was recorded by ASI Inder Singh and sent to the police station for registration of the case. On the basis of Crl.A.Nos.17/95, 21/95, 106/95 Page 2 of 21

3 said information, FIR No.31/1989 under Section 302 IPC was registered at Police Station Samepur Badli. 3. ASI Inder Singh also conveyed the information to the SHO and proceeded to the spot of occurrence. SHO Inspector Rati Ram also reached there, and found that the dead body of Surat Ram was lying on a cot in his Jhuggi. The cot as well as the mattress thereupon were stained with blood. Blood stained cot Ex.P-1 and mattress Ex.P-2 were converted into sealed packets and taken into possession. Investigating Officer lifted blood from the spot on a piece of cotton and sealed it in a phial and also took into possession the blood stained earth and the control earth from the spot. He found a green coloured printed saree Ex.P-3 smeared with blood at the roof of adjoining jhuggi which was also converted into a sealed packet and taken into possession. The Investigating Officer got the spot of occurrence photographed and also prepared a rough site plan. He also arranged for sending the dead body for post mortem. During investigation, statement of PW-2 Villan Jamadar was recorded wherein he named the appellants Munna Lal, Sohan Sahai and Asad Bai as the persons who had committed murder of Surat Ram. Dead body of the deceased was sent for post mortem. It is further the case of the prosecution that appellant Munna Lal was arrested on 14 th February 1989 and on his disclosure and pointing out, blood stained knife/churri Ex.P-4 as also his blood stained kurta and lungi Ex.P-5 and P-6 were recovered, which were converted into sealed Crl.A.Nos.17/95, 21/95, 106/95 Page 3 of 21

4 packets, and taken into possession. Thereafter, on the same day appellant Sohan Sahai was arrested. He was wearing a blood stained shirt Ex.P-9 which was taken into possession. Accused Asad Bai was also arrested on 14 th February She made a disclosure statement and in furtherance thereof she got recovered her blood stained petticoat and blouse Ex.P-7 and P-8 which were seized by the police. On 17 th February 1989, after the post mortem, a sealed packet containing blood stained clothes of the deceased was also handed over to the police. All those blood stained articles including the weapon of offence were sent for serological examination. Except for petticoat Ex.P-7 and blouse Ex.P-8 of Asad Bai and blood stained earth lifted from the spot of occurrence, which tested positive for blood group `B, all other exhibits tested positive for blood group `O. The knife Ex.P-4 was sent for opinion of the doctor who conducted the post mortem and he opined that the injuries found on the person of deceased Surat Ram could have been caused by the knife Ex.P-4. After completion of the investigation, all the three appellants were forwarded for trial under Section 302/34 IPC. 4. The learned counsel for the appellants has taken us through the judgment and pointed out that learned Additional Sessions Judge has recorded conviction of the appellants relying upon following evidence/circumstances:- (a) Eye witness account of the occurrence given by PW-3 Villan Jamadar. Crl.A.Nos.17/95, 21/95, 106/95 Page 4 of 21

5 (b) Believing the evidence of motive to the effect that appellant Asad Bai wanted to perform second marriage of her daughter Mangli Bai with appellant Sohan Sahai in consideration of Rs.1500/- whereas deceased Surat Ram was against it and wanted Mangli Bai to go back to her husband. (c) The extra judicial confession made by the appellant in presence of PW4 Kul Bahara. (d) Recovery of blood stained weapon of offence i.e. knife/churri Ex.P.4 at the instance of Munna Lal as also recovery of his blood stained kurta Ex.P-5 and lungi Ex.P-6; (e) Recovery of blood stained shirt Ex.P-9 from the person of accused Sohan Sahai; (f) Recovery of blood stained petticoat and blouse Ex.P-7 and Ex.P- 8 at the instance of accused Asad Bai; (g) Serological reports Ex.P-13/1 to Ex.P-13/4, which establish that blood stains on the clothes of Munna Lal and Sohan Sahai as also on the knife/churri Ex.P-4 matched with the blood stains on the clothes of the deceased, the cot and the mattress and blood lifted from the place of occurrence, as all those exhibits had stains of blood group `O. 5. Learned counsel for the appellants has assailed the impugned judgment on the ground that learned trial court has erred in relying upon the testimony of purported eye witness PW-3 Villan Jamadar whose narration, about the manner in which murder took place, is highly unnatural, bordering on fiction and whose presence at the spot is highly doubtful. She has further submitted that the Crl.A.Nos.17/95, 21/95, 106/95 Page 5 of 21

6 learned trial Judge, though, he has relied upon the testimony regarding extra judicial confession, has failed to take note of the fact that PW-4 Kul Bahara in his cross examination has stated that Asad Bai had confessed about her guilt at the police station. She has argued that since the alleged confession was made while in custody at the police station, it is inadmissible in evidence. Learned counsel for the appellants has further contended that the evidence of the prosecution regarding the recovery of the weapon of offence and blood stained clothes at the instance of respective appellants is highly doubtful. She has also drawn our attention to the serological report Ex.PW-13/1 to Ex.PW-13/4 and pointed out that except for the blood stains on the blouse Ex.P-7 and the petticoat Ex.P-8 of Asad Bai and the blood stained earth sample lifted from the spot, which tested positive for blood group `B, all other samples tested positive for blood group `O. She has submitted that this mis-match between the blood stains found on the exhibits, casts doubt on the prosecution case and in particular indicates that someone else who was having blood group `B was there at the spot of occurrence but, there is no explanation forthcoming as to who that person was, whose blood was found in blood stained earth lifted by the Investigating Officer from the spot. Thus, she has argued that a possibility cannot be ruled out that some other person with blood group `B was responsible for the murder of Surat Ram. She has also argued that evidence to prove motive is also not reliable and is liable to be rejected. In view of the aforesaid submissions she has urged that appeal be accepted. Crl.A.Nos.17/95, 21/95, 106/95 Page 6 of 21

7 6. Learned counsel for the State, on the other hand, has argued in favour of the conclusions arrived at by the learned Additional Sessions Judge. He has submitted that the learned Additional Sessions Judge has rightly relied upon the testimony of PW3 Villan Jamadar, who is a natural witness being a resident of a nearby jhuggi and who had no motive whatsoever to falsely implicate the appellants for the murder of the deceased Surat Ram, which version also finds support from other circumstantial evidence. In support of this contention, he has drawn our attention to the testimony of PW3 Villan Jamadar and PW4 Kul Bahara and submitted that from their evidence, it is amply proved on record that there was a motive on the part of the appellants Asad Bai and Sohan Sahai to kill the deceased, who was not agreeable to second marriage of his daughter Mangli Bai with the appellant Sohan Sahai. He has pointed out that the appellant Asad Bai had even confessed her guilt in presence of PW4 Kul Bahara. He has further submitted that aforesaid evidence also finds support from the evidence relating to recovery of blood stained weapon of offence Ex.P4, blood stained lungi Ex. P-5 and kurta Ex. P-6 of appellant Munna Lal, at his instance, as also the recovery of blood stained petticoat and blouse of appellant Asad Bai Exhibits P-7 and P-8 at her instance and also recovery of blood stained shirt Ex.P-9 which appellant Sohan Sahai was found wearing at the time of arrest. He has also drawn our attention to serological reports Ex.PW13/1 to Pw13/4 and submitted that the blood stains found on knife/churri Ex.P-4, saree of Asad Bai Ex.P-3, lungi and kurta of appellant Crl.A.Nos.17/95, 21/95, 106/95 Page 7 of 21

8 Munna Lal Exhibits P-5 and P-6 and shirt of appellant Sohan Sahai Ex.P-9 tested positive for human blood of group O and those blood stains matched with the blood group of the deceased Surat Ram lifted from the spot in a phial and also the blood stains found on cot Ex.P-1 and mattress Ex.P-2 on which the dead body was found. Thus, he has argued that the learned Additional Sessions Judge has rightly relied upon the testimony of PW3 Villan Jamadar which finds corroboration from above referred circumstantial evidence of motive as also confession of the appellant Asad Bai and the recovery of the blood stained weapon of offence and clothes at the instance of respective appellants and urged us to dismiss the appeals. 7. We have carefully considered the submissions made by the learned defence counsel as also the learned counsel for the State. 8. Foundation of the judgment of conviction recorded by the learned Additional Sessions Judge is the eye witness account of the occurrence given by PW3 Villan Jamadar. His testimony, however, does not appear to be trustworthy. Firstly, because, the witness in his examination-in-chief has stated that on the fateful night at around 2.00 A.M., he had gone out of his jhuggi to urinate. He heard some noise coming from the jhuggi of Surat Ram, therefore, he peeped into the jhuggi, and he saw in the light of an earthen lamp (diya) that appellant Sohan Sahai was holding Surat Ram by his legs, appellant Asad Bai was holding him by her hands and Munna Lal was cutting his neck with a Crl.A.Nos.17/95, 21/95, 106/95 Page 8 of 21

9 churri. On seeing this, he went running to Laik Ram, Security Guard of the company and narrated the entire incident to him. Thereafter, he went along with Laik Ram to the police post. If above version of the witness was true, then in the rukka Ex.PW1/A wherein the statement of Laik Ram was recorded, the names of the appellants and the details about the manner in which murder of Surat Ram was committed would have found mention in the statement of Laik Ram Ex. PW1/A recorded at the police post. However, it is noted, that though aforesaid statement Ex.PW1/A records that PW 3 Villan Jamadar told Laik Ram that Surat Ram has been murdered in the jhuggis of Sain Baba Housing Society, there is no mention of the names of the culprits and the details about the manner in which murder was committed. Secondly, PW3 Villan Jamadar, in his crossexamination, has stated that when Munna Lal was cutting the throat of the deceased slowly with the knife/churri, nobody had put his or her hand on the mouth of the deceased. If the aforesaid version was true then definitely the deceased must have cried with pain and even physically resisted the appellants. In such eventuality, obviously, the nearby jhuggi dwellers would have heard the cries of the deceased and reached the spot of occurrence, which is not the case. Even there is nothing in the testimony of the Investigating Officer to suggest that he found any sign of resistance given by the deceased at the spot of occurrence. Therefore, we do not find it safe to rely upon the testimony of PW3 Villan Jamadar, which is highly unnatural and bordering on fiction. Otherwise also, Villan Jamadar in his cross-examination has stated that he Crl.A.Nos.17/95, 21/95, 106/95 Page 9 of 21

10 accompanied PW1 Laik Ram to the police post for lodging the report. If he was an eye witness to the occurrence and had gone to the police post with one Laik Ram, for lodging the report, his entire version should have found mention in the report Ex. PW1/A lodged by PW1 Laik Ram. 9. Learned counsel for the State has submitted that Asad Bai was wife of the deceased Surat Ram, therefore, it can be safely inferred that she, being the wife, was present in the jhuggi of Surat Ram on the fateful night. He has argued, thus it was obligatory upon her, in view of Section 106 of the Indian Evidence Act, 1872, to explain in her statement under Section 313 Cr.P.C., as to where she was on the fateful night or what happened in the jhuggi which resulted in murder of the deceased. He has argued that, since Asad Bai has failed to come out with any explanation in that regard, it provides a strong additional incriminating circumstance against her. In support of this contention, he has relied upon the decision of the Hon ble Supreme Court in the matter of State of Rajasthan Vs. Kashi Ram (2006) 12 SCC We are not convinced with the submission made by learned counsel for the State. In criminal cases the onus of proving every fact essential to establishment of charge against the accused lies upon the prosecution as in criminal jurisprudence accused is presumed to be innocent till proved guilty beyond reasonable doubt. The prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. On perusal Crl.A.Nos.17/95, 21/95, 106/95 Page 10 of 21

11 of the record, it would be seen that the prosecution has not adduced any evidence to establish that the deceased Surat Ram was last seen in his jhuggi with the appellant Asad Bai. Therefore, in absence of any evidence to that effect, accused Asad Bai was not under any obligation to give any explanation about her whereabouts on the fateful night. The judgment in the matter of State of Rajasthan vs. Kashi Ram(supra) relied upon by the prosecution is based upon its own peculiar facts which are distinguishable from the facts of this case. To properly appreciate the contention of learned counsel for the State, it is necessary to reproduce para 17 of the said judgment, which reads thus: 17. We have been taken through the entire evidence on record. The medical evidence on record clearly proves that the death of Kalwati and her two minor daughters was homicidal caused by strangulation. The cause of death was asphyxia. It is also established on record that the deceased was last seen alive in the company of the respondent on at her house. The prosecution has also successfully established the fact that the house was found locked on the morning of and continued to remain locked till it was opened after removing the door on Throughout this period the respondent was not to be seen and he was arrested only on Neither at the time of his arrest, nor in the course of investigation, nor before the court, has the respondent given any explanation in defence. He has not even furnished any explanation as to where he was between and It has been argued on behalf of the prosecution that this most important circumstance has been completely ignored by the High Court. The case of the prosecution substantially rested on this circumstance. The respondent was obliged to furnish some explanation in defence. He could have explained where he was during this period, or he could have furnished any other explanation to prove his innocence. Counsel for the respondent on the other hand, contends that though the respondent furnished no explanation whatsoever, there is evidence on record to prove that he had gone to attend Surat Garh fair with his family members. A question, therefore, arises whether the presumption under Section 106 of the Evidence Act may be drawn against the respondent in facts of the case, since the fact as to where he was during the relevant period and when he parted company with the deceased, were Crl.A.Nos.17/95, 21/95, 106/95 Page 11 of 21

12 matters within his special knowledge the burden of proving which was cast upon him by law. From the aforesaid observation of the Supreme Court in the judgment, it is apparent that adverse presumption under Section 106 of the Indian Evidence Act was drawn against the accused in the aforesaid matter because prosecution had been able to establish some incriminating circumstances against him which called for explanation on the part of the accused in the said case. However, in the present case, the facts are entirely different. The prosecution has not led any evidence whatsoever to establish that the deceased was last seen alive in the company of the appellant Asad Bai on the fateful night. Therefore, in our view, there was no legal obligation upon the appellant Asad Bai to come out with any explanation in her statement under Section 313 Cr.P.C. and that the judgment cited on behalf of the prosecution is not applicable to the facts of this case. 11. The learned trial court, besides the testimony of PW3 Villan Jamadar, has also relied upon purported extra judicial confession made by appellant Asad Bai to her son-in-law PW4 Kul Bahara. It would be seen that PW4 Kul Bahara in his testimony, inter alia, stated thus: when the police had taken away Asad Bai on account of murder of her husband, the police also took me from my jhuggi at about night and at the police station Asad Bai had confessed that she had murdered her husband, in my presence Crl.A.Nos.17/95, 21/95, 106/95 Page 12 of 21

13 From the aforesaid version, it is apparent that purported extra judicial confession, if at all it was made, was made by Asad Bai at the police station while she was in custody. Therefore, said confession is inadmissible in view of Section 26 of the Indian Evidence Act, Thus, in our view the learned trial court has erred in relying upon the testimony of PW4 Kul Bahara relating to extra judicial confession made by the appellant Asad Bai. 12. It would be noticed that the Additional Sessions Judge has also believed the evidence of the prosecution regarding motive on the parts of the appellants to kill the deceased Surat Ram. The story of the prosecution as per the charge sheet is that Mangli Bai daughter of Asad Bai was married to PW4 Kul Bahara. She returned from her matrimonial home after 15 days. Asad Bai did not wish her daughter Mangli Bai to go back to her husband Kul Bahara and she wanted to marry her to the appellant Sohan Sahai in consideration of Rs.1500/-, whereas the deceased Surat Ram was opposed to the idea and he wanted Mangli Bai to go back to her husband and there used to be fight between Asad Bai and the deceased Surat Ram on the said issue. To prove the aforesaid motive, prosecution has examined two witnesses PW3 Villan Jamadar and PW4 Kul Bahara. PW3 Villan Jamadar in his cross-examination on behalf of the appellant Asad Bai was unable to tell about the exact nature of conversation which used to take place between Surat Ram and Asad Bai regarding their daughter Mangli Bai, and in the later part of the cross-examination, he has Crl.A.Nos.17/95, 21/95, 106/95 Page 13 of 21

14 admitted that he was never present during such conversations. In his examination-in-chief also he has stated that he used to hear that Asad Bai wanted to marry their daughter Mangli Bai again, whereas Surat Ram wanted to send her to her previous husband. However, he has not clarified in his crossexamination from whom he had heard that but, he is categoric that he never heard any conversation between Asad Bai and the deceased Surat Ram regarding their daughter Mangli Bai. Therefore, it is obvious, that PW3 Villan Jamadar is not an eye witness to any such discord between the appellant Asad Bai and the deceased and his testimony regarding the motive part is only hearsay, and, therefore, is inadmissible in evidence. 13. Another witness examined by the prosecution to prove motive on the part of the appellants Asad Bai and Sohan Sahai to kill the deceased Surat Ram is PW4 Kul Bahara. We may mention at the outset that PW4 Kul Bahara falls within the category of an interested witness because according to him 15 days after his marriage with Mangli Bai, his mother-in-law (appellant Asad Bai) took her back to her house and never sent Mangli Bai back to her matrimonial home. From this, it can be inferred that witness might be nursing a grudge against the appellant Asad Bai as she was not allowing her daughter to go back to her matrimonial home. Further, PW4 Kul Bahara in his examination-in-chief has stated that Asad Bai did not send Mangli Bai back to her matrimonial home, as she had agreed to marry her somewhere else for a consideration of Rs.1500/-, Crl.A.Nos.17/95, 21/95, 106/95 Page 14 of 21

15 out of which she had already accepted Rs.150/- as advance. His aforesaid version is not believable because in his cross-examination, he could not tell the name of the person whom Asad Bai had agreed to remarry her daughter Mangli Bai to for a consideration of Rs.1500/-. Had he actually been witness to such a transaction, he would at least have known the name of the person with whom Mangli Bai was supposed to be remarried. Further, to prove above referred point of discord between appellant Asad Bai and her deceased husband Surat Ram, the best witness could be Mangli Bai herself. Mangli Bai, however, has neither been cited nor examined as a witness to prove the motive. Since prosecution has opted to withhold the best evidence by not producing her as a witness, we are inclined to infer that had she been examined as a witness, her version would have gone against the prosecution. Therefore, under the circumstances, we are of the view that the evidence led by the prosecution to establish motive on the part of the appellants Asad Bai and Sohan Sahai, is not reliable, and that the learned Additional Sessions Judge has erred in concluding that there was a motive on the part of the appellant to kill the deceased. 14. Coming to the recovery of the weapon of offence knife/churri Ex.P-4 and blood stained lungi Ex.P-5 and kurta Ex.P-6 at the instance of accused Munna Lal. To prove aforesaid recovery, prosecution has relied upon the Crl.A.Nos.17/95, 21/95, 106/95 Page 15 of 21

16 statements of the Investigating Officer PW13 Inspector Rati Ram, PW12 Constable Anang Pal Singh and PW 2 Pratap Chand Mandal. 15. PW 2 Pratap Chand Mandal has stated in his examination-in-chief that accused Munna Lal was arrested by the police on 14 th February, 1989 and he made a disclosure statement to the police stating that he could get recovered one white shirt and lungi and knife. Thereafter, he led the police party to jhuggi opposite the jhuggi of the deceased and got recovered knife/ churri Ex.P-4 and a lungi Ex.P-5 and kurta Exhibits P-6. He has stated that recovered articles were taken into possession vide memo Ex.2/B, which bears his signatures at point A. Perusal of the record would show that though the recovery memo Ex.2/A bears the signatures of PW2 Pratap Chand Mandal, neither the disclosure statement of Munna Lal Ex.12/A nor his personal search memo Ex.P-12/B bears signatures of this witness. Had this witness been present at the time of arrest of Munna Lal and when he made disclosure, under natural circumstance, the Investigating Officer would have obtained his signatures on the personal search memo as well as the disclosure statement of the appellant Munna Lal, being an independent witness. Since his signatures are not there on the arrest memo Ex.PW12/B and disclosure statement Ex.PW12/A, his presence at the time of the recovery of Exhibits P-4 to P-6 is doubtful. Otherwise also, PW13 Inspector Rati Ram in his entire testimony has nowhere stated that PW2 Pratap Chand Mandal was with him on 14 th February 1989, when he received information Crl.A.Nos.17/95, 21/95, 106/95 Page 16 of 21

17 about the presence of the appellant Munna Lal at his jhuggi, or that he subsequently joined him in the investigation to witness the recovery of weapon of offence and blood stained clothes of the appellant Munna Lal Exbts P-4 to P- 6 at his instance. On the other hand, in his cross-examination he has stated that when he arrested Munna Lal, he did not join any independent witness from the nearby jhuggis to his arrest. Therefore, it remains unexplained as to when PW2 Pratap Chand Mandal came to be joined as witness and under what circumstances he signed the pointing out-cum-recovery memo Ex.12/A as also the sketch of the knife Ex.2/A. Even the testimony of Constable Anang Pal Singh who is supposed to be other witness of recovery of weapon of offence and clothes Exbts.P-4 to P-6 on the pointing of appellant Munna Lal, does not give any clue as to how and when PW2 Pratap Chand Mandal came to be joined as a witness to the recovery at the instance of appellant Munna Lal. In view of the aforesaid circumstances, we are of the opinion that presence of PW2 Pratap Chand Mandal at the time of recovery is highly doubtful and that being so, the testimony of PW12 Constable Anang Pal Singh and PW13 Investigating Officer Inspector Rati Ram also becomes doubtful and unreliable. Thus, we do not find it safe to rely upon the aforesaid evidence of recovery of witness and blood stains clothes at the instance of Munna Lal. 16. If the evidence pertaining to recovery of above said articles at the instance of Munna Lal fails, then the evidence of the prosecution regarding Crl.A.Nos.17/95, 21/95, 106/95 Page 17 of 21

18 recovery of the blood stained shirt from the person of accused Sohan Sahai as also the blood stained petticoat and blouse at the instance of Asad Bai becomes doubtful, because of the same reasons. Otherwise also, the prosecution story, as narrated by the Investigating Officer Inspector Rati Ram, to the effect, that at the time of arrest accused Sohan Sahai was wearing blood stained shirt Ex.P-9 appears to be highly improbable, because had prosecution version about murder of Surat Ram been true, under natural course of circumstances, the first impulse of the appellant accused would have been either to get rid of the shirt or to wash it in order to remove the blood stains from the shirt, instead of moving around wearing the blood stained shirt. Thus, in our view, even the evidence of recovery of blood stained shirt from the person of the accused Sohan Sahai is highly doubtful. 17. Even if the recovery of petticoat and blouse Exhibits P-7 and P-8 at the instance of appellant Asad Bai is accepted, then also it is of no help to the prosecution because as per the serological report, the blood found on the petticoat and the blouse Exbts. P-7 and P-8 was of group B which did not match with the blood group O found on the samples lifted and seized from the spot of occurrence, as such those clothes are not connected to the murder of the deceased Surat Ram. Crl.A.Nos.17/95, 21/95, 106/95 Page 18 of 21

19 18. Lastly, it would be seen from the serological report Ex.13/3 that though the case of the prosecution is that the blood group of the deceased Surat Ram was O, the blood stained earth lifted from the spot of occurrence tested positive for the blood group B. That being the case, a possibility of someone having blood group B been present at the spot of occurrence or having been involved in the killing of the deceased Surat Ram cannot be ruled out. From the record, including the testimony of the Investigating Officer Inspector Rati Ram, it is apparent that Investigating Officer has not cared to find out the reasons for presence of blood group B in the blood stained earth lifted from the spot of occurrence. In absence of any explanation coming forth in this regard, a possibility cannot be ruled out that some other person with blood group B might be responsible for the death of the deceased. 19. Further, the Investigating Officer Inspector Rati Ram in his testimony has deposed that on reaching the spot of occurrence, he seized blood stained earth, blood stained articles including one printed green saree which was found at the roof of adjoining jhuggi of son of appellant Asad Bai, vide a Seizure Memo Ex. PW1/B. On seeing the blood stained saree, under the natural course of circumstances, Investigating Officer was expected to suspect some lady for the murder. According to PW1 Laik Ram, who is one of the witnesses to the Seizure Memo Ex.PW1/B, PW3 Villan Jamadar was present at the time of recovery of the saree. If Villan Jamadar actually was an eye witness to the Crl.A.Nos.17/95, 21/95, 106/95 Page 19 of 21

20 occurrence, at least at the time of recovery of saree, he would have told the Investigating Officer that the deceased was killed by the appellants Asad Bai, Sohan Sahai and Munna Lal. In that eventuality, the Investigating Officer was naturally expected to arrest Asad Bai instead of allowing her to go along with the dead body as Inspector Rati Ram has deposed in his testimony. The aforesaid conduct of Inspector Rati Ram rules out the presence of PW3 Villan Jamadar at the time of occurrence and raises a strong doubt that he has been introduced subsequently as an eye witness by the Investigating Officer. 20. In view of the discussion above, we are of the opinion that the learned Additional Sessions Judge has erred in appreciating the evidence inasmuch as relying upon the testimony of PW3 Villan Jamadar as also the evidence relating to motive on the part of the appellants as well as the extra judicial confession made by appellant Asad Bai. Even the testimony of witnesses regarding recovery of incriminating articles, like weapon of offence Ex.P4 and blood stained clothes of the appellant Exbts P-5 to P-9 at their instance is highly doubtful. Thus, we do not consider it safe to sustain the judgment of conviction. Accordingly, we accept the appeals filed by the appellants Sohan Sahai, Asar Bai and Munna Lal and set aside the judgment of conviction as also the order of sentence passed by the learned trial Judge. Crl.A.Nos.17/95, 21/95, 106/95 Page 20 of 21

21 21. All the three appellants are, accordingly, acquitted. Appellants are on bail, therefore, their bail bonds stand cancelled and their respective sureties stand discharged. The appeals stand disposed of as having been allowed. AJIT BHARIHOKE, J. July 3, 2009 BADAR DURREZ AHMED, J. pst Crl.A.Nos.17/95, 21/95, 106/95 Page 21 of 21