ENGLISH SHORTHAND DICTATION-372

 

We have carefully considered the submissions made across the bar. We have perused the evidence of the material prosecution witnesses with the assistance of the learned counsel appearing for the appellant. At the outset, it must be noted here that the prosecution case is not based on circumstantial evidence. It is specifically based on the evidence of the alleged eyewitnesses PW-1 and PW-3. Apart from the eyewitnesses, the prosecution relied upon the recovery of the alleged weapon of offence at the instance of the appellant and the fact that the appellant disclosed the place where he had thrown¹⁰⁰ the dead bodies.

As neither PW-1 nor PW-3 supported the prosecution, what remains to be considered is only¹²⁰ the evidence of alleged recovery at the instance of the appellant. According to the prosecution case, the offence occurred after the evening of 4th January 2004 and before 9:00 a.m. on 5th January 2004. According to the versions of PW-15 and PW-20, the appellant allegedly made a disclosure statement on 9th February 2004. According to both the witnesses, the appellant disclosed that he had kept a country-made pistol along with two cartridges²⁰⁰ wrapped in a polythene bag in front of the Plaza building.

Though PW-15 deposed that the appellant disclosed that the country-made pistol, along with two cartridges wrapped in a polythene bag, was kept underneath the earth in the eastern²⁴⁰ corner of the open space, PW-20 did not specifically depose that the appellant disclosed that the articles were kept underneath the ground. PW-15 described how the appellant took the police to the park in front of the Plaza Building. He did not state that the recovery was made after digging the earth.

He stated that the appellant led³⁰⁰ the police to the eastern corner of the park and showed the country-made pistol of 315 bore along with two cartridges. Even PW-20, in his examination-in-chief, did not disclose that recovery was made after digging. Though Memorandum Panchnama of recovery recorded that the weapon was recovered after digging, both PW-15 and PW-20 have not deposed³⁶⁰ to that effect. Though both the police witnesses initially stated that no independent witnesses were available, PW-20 stated in his cross-examination that there were public witnesses available who were not found interested.

More than one factor renders the prosecution⁴⁰⁰ theory regarding recovery very suspicious and doubtful. The first factor is that the recovery was allegedly made one month and four days after the occurrence. Secondly, the recovery was made from open space in a garden. Thus, the place was easily accessible to many. Thirdly, neither PW-15 nor PW-20 have stated that the weapon and cartridges were buried underground and were recovered only after digging.

Lastly, though independent witnesses were available, they were not made witnesses to the⁴⁸⁰ Panchnama made pursuant to the alleged statement made by the appellant. As the recovery of the weapon at the appellant's⁵⁰⁰ instance cannot be believed, the decisions relied upon by the learned counsel for the respondent are not significant at all. She relied upon the decisions which hold that in certain cases, a conviction can be based on the recovery of the weapon of offence at the instance of the accused.

According to the prosecution case, on 9th February 2004, the appellant led the police party to a place where he had thrown the dead bodies. However, dead bodies were already recovered on 5th January 2004. Therefore, the place from which dead bodies were recovered was known to the police long⁶⁰⁰ before 9th February 2004. Consequently, it cannot be said that there was a discovery by the appellant of the place where dead bodies were kept. Therefore, that part of the statement of the accused, which records that he would show the place where he had thrown the dead bodies, is not admissible in evidence under Section 27 of the Indian Evidence Act, 1872.

The complainant and real brother of deceased Pawan, deposed that he suspected the involvement of one Naresh in the offence. PW-20, in his cross-examination, admitted that he did not make any⁷⁰⁰ investigation whether there was any enmity between the said Naresh and the deceased. He admitted that one Mukesh was a⁷²⁰ personal friend of the deceased Pawan. He pleaded ignorance about the correctness of the suggestion that Mukesh had murdered Naresh.

The police have not investigated the role played by the said Naresh, who, according to the brother of the deceased, was on inimical terms with the deceased. When, according to the family of the deceased, Naresh was the suspect, police ought to have investigated the role played by Naresh. There is yet another critical aspect of the case. PW-15⁸⁰⁰ and PW-20 have not stated in their examination-in-chief how they became aware that PW-1 and PW-3 were the eyewitnesses.

For all the aforesaid reasons, the evidence of recovery of the weapon at the instance of the appellant⁸⁴⁰ cannot be accepted as reliable. Moreover, the findings we have recorded above create a serious doubt about the truthfulness of the prosecution case. Therefore, in any case, the benefit of the doubt must be extended to the appellant. It can also be said that once the evidence of recovery is disbelieved, it was a case of no evidence as the⁹⁰⁰ eyewitnesses did not support the prosecution.

Accordingly, the appeal must succeed. The impugned judgment and order dated 2^nd May 2011 in Criminal Appeal No. 942 of 2007 passed by the High Court of Punjab and Haryana and the judgment and order dated 19th September 2007 in Sessions Case No.13 of 2004⁹⁶⁰ passed by the Additional Sessions Judge, Gurgaon are hereby quashed and set aside insofar as the appellant Kishan is concerned, and he stands acquitted of the offences alleged against him. We direct that the appellant shall be immediately set at¹⁰⁰⁰ liberty unless his custody is required in connection with any other case.