Girdhari vs State(Govt.Nct Of Delhi)

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

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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

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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] [VINOD KULVI] COURT MASTER 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.