Phoolan Devi Murder Case Judgement

IN THE COURT OF SH.
BHARAT PARASHAR, ASJ-01,

NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R002142200
Da!e o" "#$#%& o" '(a)&e s(ee! * 23.10.2001
Da!e o" ")a+#%& o" '(a)&e * 1,.0.2002 a%-
01.02.200.
/a&a#%s! a''0se-
S(a)1a% o%$23
Da!e o" "#%a$ a)&0+e%!s * 2.0..2014
Da!e o" 40-&+e%! * 05.05.2014
SC No. 05612
FIR No. 2.3601
PS Pa)$#a+e%! S!)ee!
U6s 1362016302630,641647564,16120B634 IPC
8 Se'!#o% 2.62./1B362,62 A)+s A'!
I% )e*
STATE

9s.

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State v. Sher Singh Rana & Ors. Page 1 of 217
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APPEARANCES
P)ese%! * S(. S.@. SaCe%a, L-. SBe'#a$ PP "o) !(e S!a!e
a$o%&1#!( ?s. ?a%#s(a S(a)+a, A-<o'a!e.
S(. ?0;es( @a$#a, L-. Co0%se$ "o) a''0se- S(e) S#%&(
Ra%a, Ra4A#) S#%&(, @es(a< C(a0(a% a%- 9#4a2 S#%&(
Ra%a.
S(. Ra;es( 9a!s, L-. Co0%se$ "o) a''0se- S(e;(a) S#%&(,
Pa)<ee% ?#!!a$, A+#! Ra!(# a%- S(a)1a% @0+a).
?s. S0+#!a @aB#$, A+#'0s C0)#ae "o) a''0se-
Ra4e%-e) S#%&(.
S(. B.@. @0$s()es(!(a, L-. Co0%se$ "o) a''0se-
D(a% Pa);as( a%- S0)e%-e) S#%&( Ne&#
J U D =?E N T
1. Briefly stated the case of prosecution as unfolded by the report
u/s 173 r.!.. is as under"
2. #n 25.07.01 at about 1.30 !$ the then $e%ber of !arlia%ent
&%t. !hoolan 'e(i )as shot dead *ust outside the %ain +ate of her house
i.e. 44 ,sho-a .oad by t)o assailants. /er !&# !0173 t. Balender )as
also shot at but fortunately he sur(i(ed the bullet in*uries.
3. t. Balender ho)e(er sho)ed coura+e and retaliated by firin+
fro% his ser(ice re(ol(er to)ards the assailants )ho in the %eanti%e had
fled a)ay fro% the spot in a )aitin+ +reen colour $aruti ar 2o. 3$1907.
#ne of the bullet e(en hit the rear +lass of the $aruti ar. 4he assailants
also returned fire fro% the ar and in the process also %ana+ed to flee
a)ay.
4. 4he sister of &%t. &%t. !hoolan 'e(i na%ely !01104 $unni
'e(i5 personal staff of &%t. !hoolan 'e(i and !0117 6%a 7ashyap a
(isitor to the house of &%t. !hoolan 'e(i on that day helped in re%o(in+
both &%t. !hoolan 'e(i and her !&# t. Balender to .$8 hospital after
+ettin+ a passin+ by %aruti (an belon+in+ to !01164 .a*neesh &har%a
stopped. 3n the %eanti%e (arious %essa+es about the shoot out )ere
recei(ed at police control roo% )hich initially stated that so%e shoot out
incident has ta-en place at ,sho-a .oad or that so%e lady has been shot.
5. #ne chance )itness na%ely5 !01129 9inod 9ish)anath5 a
scooterist also infor%ed !0124 ,&3 &hri 7rishan )ho )as on 4raffic
ontrol duty at near :ol 'a- 7hana that the assailants )ho had fired at
near 445 ,sho-a .oad ha(e left their ar near !andit !ant $ar+ bet)een
7othi 2o. 12 and 14 and had thereafter run a)ay in a 4&. bearin+ 2o. '81
3.1;10235. 4he said %essa+e )as also con(eyed to police control roo%.
,&3 &hri 7rishan in the %eanti%e )ent near !andit !ant $ar+ and sa)
one +reen colour $aruti ar 2o. 3$1907 par-ed o(er there )ith dar-
)indo) panes. /e also sent %essa+es in this re+ard to the police control
roo%.
6. !0113 ,&3 &atish <oshi of !& $andir $ar+ )ho )as also on
duty in the nearby area of :ol 'a- 7hana )as also infor%ed by one boy
that 3 persons )ho had shot at a lady at ,sho-a .oad5 after lea(in+ their
ar5 had run a)ay in a 4&. fro% !andit !ant $ar+ to)ards 7rishi
Bha)an. ,&3 &atish <oshi also thus )ent near the car and he too sent
%essa+es in this re+ard to the police control roo%. 3n the %eanti%e !01
167 3nsp. :.8. $ehta5 &/# !& parlia%ent street also reached the spot.
&ince a $e%ber of !arlia%ent )as shot at so a lot of hue and cry )as
raised and nu%ber of senior police officers also rushed to the spot. 3nsp.
:.8. $ehta after %a-in+ initial in=uiry recorded state%ent >in /indi? of one
eye )itness na%ely5 !0152 7ali haran )ho )as )or-in+ as personal
staff of &%t. !hoolan 'e(i. 3 a% ho)e(er reproducin+ here under the
@n+lish translation of said state%ent of 7ali haran as has been
%entioned in the char+e sheet filed by the police since the contents of the
said state%ent are +oin+ to be (ery rele(ant )hile appreciatin+ the nature
of e(idence led by the police a+ainst (arious accused persons. 4he said
@n+lish translation of the state%ent of 7ali haran as is %entioned in the
char+e sheet reads as follo)s"
I am residing at the above given address and am
associated with Smt. Smt. Phoolan Devi, MP Lok Sabha
since 1997. I look ater the work o the oice at !! "shoka
#oad alongwith S. $.M. Dass, Personal Secretar%. &oda%
morning Smt. 'ma (ash%a) alongwith her h*sband and
driver Panka+ reached here at abo*t 1, "M b% -ar. "ll
three o them walked in, while the -ar remained )arked
o*tside the ho*se. Smt. Smt. Phoolan Devi was cooking
something in the kitchen. Seeing Smt. (ash%a), she came
o*t, met them and took Smt. (ash%a) inside the ho*se.
&he h*sband o Smt. (ash%a) and Panka+ sat with me in
m% oice. Smt. Smt. Phoolan Devi, Member o Parliament,
asked me to call or a mini b*s rom )arliament ho*se. I
made a call and aro*nd 11 "M, a mini b*s rom
Parliament .o*se, came to the ho*se b*t b% that time
Smt. Smt. Phoolan Devi was not read%, as s*ch, the mini
b*s was sent back. "ter some time Smt. Smt. Phoolan
Devi let or Parliament in the -ar bro*ght b% Smt. 'ma
(ash%a). "t that time PS/ to Smt. Smt. Phoolan Devi
-ost. 0alender Singh was with her and Panka+ was driving
the -ar. 1ivek, M*nni Devi 2sister o Smt. Smt. Phoolan
Devi3, Shiv 4arain -ook, 'ma (ash%a), her h*sband,
#am -hander (ahs%a) 25ok*l P*ri, Delhi3 and two
)ersons rom the -onstit*enc% o Smt. Smt. Phoolan Devi
were )resent in the ho*se. It was aro*nd 1.6781.9,PM,
when I had inished m% meal and ater drinking water I
came o*t rom the oice side. I saw that the PS/ to Smt.
Smt. Phoolan Devi was o)ening the gate and Smt. Smt.
Phoolan Devi was standing o*tside. In the meantime two
men aged abo*t 6789, %rs height abo*t 7: 7;, air
com)le<ion, wearing +ean and one was wearing )rinted
shirt and the other who was wearing dark colo*red )ant
started iring at Smt. Smt. Phoolan Devi. &he b*llets hit
the head and breast o Smt. Smt. Phoolan Devi and
b*llets hit the PS/ also. I ran towards the gate and saw
those two r*nning and esca)ing in a dark green colo*red
Mar*ti -ar. &he PS/ also ired shots at the -ar b*t the
-ar s)ed awa% towards 5ole Dak (hana. I alongwith
other inmates o the ho*se got b*s% in taking care o Smt.
Smt. Phoolan Devi and inormed the )olice at 1,, n*mber
rom the oice. PS/ in his in+*red condition also ollowed
me to oice. &hen I sent in+*red Smt. Smt. Phoolan Devi
and the PS/ to the .os)ital in a Mar*ti 1an sto))ed b%
the members o the amil%. I can identi% these )ersons i
the% are bro*ght beore me. &he man b% the name o
Panka+ who had alread% come to the ho*se two three
times with Smt. 'ma (ash%a) whom I know ver% well is
missing since then with his vehicle. 4ow I have come to
know that Smt. Smt. Phoolan Devi has died.;
2em)hasis s*))lied3
7. 3nsp. :.8. $ehta accordin+ly %ade his endorse%ent on the
basis of said state%ent of 7ali haran and +ot a case re+istered at !&
!arlia%ent &treet. 4he subse=uent in(esti+ation )as ho)e(er transferred
to the ri%e Branch by the orders of &r. #fficers of police. !01170 3nsp.
&uresh 7aushi- of ri%e Branch )as thus entrusted )ith the subse=uent
in(esti+ation. 3n the %eanti%e &%t. !hoolan 'e(i )as declared brou+ht
dead by the doctors at .$8 hospital and they found around 10 fire ar%
in*uries on her person. 4he condition of !&# t. Balender )as also stated
to be critical. 4he 'octors collected the clothes of &%t. !hoolan 'e(i )hich
)ere on her body besides other *e)ellary articles and sealed the% in
different pullandas )ith the seal of .$8 hospital. 4he blood stained clothes
of t. Balender )ere also ta-en into possession by the 'octors and )ere
sealed in different pullandas )ith the seal of .$8 hospital. #ne ser(ice
pistol of t. Balender )ith 8 li(e cartrid+es in %a+aAine )as also ta-en into
possession. 4he doctors reco(ered about 5 bullets fro% the body and
clothes of &%t. !hoolan 'e(i and one bullet )as reco(ered fro% the body
of t. Balender. 4he bullets )ere also collected and sealed in different
pullandas.
8. 3nsp. &uresh 7aushi- in the %eanti%e inspected the place of
incident and found a lar+e =uantity of blood lyin+ around it. 4)o s%all bone
pieces5 one blood soa-ed dupatta and so%e e%pty cartrid+es )ere also
found around the place beside one bullet lead. 4he cri%e tea% also
reached the spot and inspected and too- photo+raphs of the place of
incident. 4he car used by the assailants i.e. 3$1907 )hich )as found
abandoned at !andit !ant $ar+ )as also inspected. #n the rear seat of
the ar t)o %on-ey caps5 one %aroon and other dar- +reen colour )ere
lyin+ besides t)o re(ol(ers and t)el(e >12? li(e cartrid+es. 4)o bullet leads
)ere also found in the rear left door of the car. #ne suitcase )ith so%e
clothes )as also found inside the ar. 4hou+h the fin+er print eBperts fro%
;&8 lab B3 )ere able to lift 6 chance prints fro% the ar and especially
fro% the rear (ie) %irror at the spot itself but due to bad )eather and lac-
of electricity the ar )as ta-en to the office of '! 2e) 'elhi on the
ad(ise of fin+er print eBperts fro% ;&8 $al(iya 2a+ar. 4he car )as dri(en
by !01162 &3 &an*ee( $andal fro% the spot to the office co%pound of
'!5 2e) 'elhi. 6pon chec-in+ the t)o re(ol(ers reco(ered fro% inside
the ar5 three li(e cartrid+es and three fired cartrid+es )ere reco(ered
fro% one re(ol(er on )hich )ords C0@B8@D E &#44 84' )ere )ritten
and siB e%pty cartrid+es )ere reco(ered fro% the second re(ol(er on
)hich )ords C$,'@ 32 328@2'F and C$,'@ 32 32'8@2F )ere )ritten. 12
li(e cartrid+es )ere also reco(ered fro% inside the ar. ,fter preparin+ the
s-etch of the said re(ol(er and cartrid+es so reco(ered they )ere ta-en
into possession after sealin+ the% into different pulandas by 3nsp. &uresh
7aushi-. 3 chance fin+er prints )ere also reco(ered fro% each of the t)o
re(ol(ers.
9. &ubse=uently so%e other passerby also infor%ed 3nsp. &uresh
7aushi- that the 3 boys had run a)ay in a 4&. 2o. '811.;10235. 4he
char+e sheet further states that durin+ the course of further in(esti+ation5
identity of one of the assailants )as established as &her &in+h .ana G
&heru G !an-a* and that ar 2o. 3$1907 belon+ed to &her &in+h .ana
only and that he had co%e to the house of &%t. !hoolan 'e(i alon+)ith
!0117 6%a 7ashyap and her husband !0118 9i*ay 7ashyap in the said
car no. 3$1907 fro% .oor-ee to 'elhi on the %ornin+ of 25.07.2001. #ne
police tea% headed by !01113 3nsp. .an &in+h )as accordin+ly sent to
.oor-ee to apprehend accused &her &in+h .ana and in the %eanti%e &3
$ano* 7u%ar )as deputed to trace out 4&. 2o. '8 1.; 0235. !01114
Bahadur &hah )as found to be dri(in+ the said 4&. )hen the said three
boys sat in his 4&. and )ho had thereafter +ot do)n after tra(ellin+ to
so%e distance in his 4&. and e(en did not pay fare to hi%.
10. &ubse=uently on 27.07.01 it )as reported in the %edia and
)hich fact )as later on confir%ed by the 6ttranchal police also that
accused &her &in+h .ana )ho )as )anted in the present case has been
arrested in !& 'alan)ala5 'ehradun after he had addressed a !ress
onference in 'oon !ress lub5 'ehradun and had confessed that he
alon+)ith one .a*ender G .a(inder had shot at &%t. !hoolan 'e(i and
t. Balender. ,ccordin+ly 3nsp. .an &in+h )ho )as already present in the
area reached police station 'allan)ala and arrested accused &her &in+h
.ana and )hile -eepin+ his face %uffled he )as brou+ht to 'elhi. ,ccused
&her &in+h .ana thereafter %ade a disclosure state%ent )hich )as
reduced into )ritin+. >&he contents o the said disclos*re statement were
however later on o*nd to be not correct. .e had stated abo*t one
#a+ender = #avinder being also involved in the shooting incident b*t said
#a+ender = #avinder was later on o*nd to be lodged in .aridwar +ail on
the da% o incident?. #n 28.07.01 he )as produced in the ourts at 'elhi
and his 10 days police custody re%and )as ta-en. /o)e(er accused &her
&in+h .ana thereafter a+ain %ade a disclosure state%ent and therein he
spilled the beans of the entire contro(ersy so conspired by hi% and his
other associates. /e disclosed about the in(ol(e%ent of one .a*bir5
&he-har5 'han !ar-ash5 !ar(een $ittal5 ,%it .athi5 9i*ay &in+h5 .a*ender5
&urender5 &har)an 7u%ar and !ardeep in the conspiracy.
11. &ubse=uently on 30.07.01 .a*ender &in+h G .a(inder &/o
&hri $ohinder &in+h 5 &he-har &in+h &/o .a*pal &in+h and .a*bir &in+h
&/o &hri <a+at &in+h )ere arrested by the police of &aharanpur5 6! )hile
they )ere approachin+ the ourt o%pleB &aharanpur for surrender. ,t
their instance one )hite $aruti ar 2o. 6! 14B 7559 )as also reco(ered.
&iB chance fin+er prints )ere also lifted fro% the car. 3t )as disclosed by
the accused persons that the said ar )as bein+ dri(en by accused .a*bir
&in+h at the ti%e of incident i.e. )hen &%t. !hoolan 'e(i )as shot dead
and the said ar )as to be used as a bac-up ar so that the other co1
accused persons could flee a)ay in it after the co%%ission of offence.
Besides accused &her &in+h .ana )ho had fired at &%t. !hoolan 'e(i5
accused 'han !ar-ash )as found to be the other assailant )ho had fired
at t. Balender and accused &he-har )as the third person )ho )as
dri(in+ ar 2o. 3$1907 in )hich the t)o assailants fled a)ay fro% the
spot. 3t also ca%e to the -no)led+e of police that accused .a*ender G
.a(inder at the ti%e of incident )as infact lod+ed in *ail in /arid)ar in an
@Bcise ,ct case and infact a (ery deep rooted conspiracy )as planned to
create e(idence so as to pro(ide a false plea of alibi for the accused
persons by sho)in+ the% to be in *ail at the ti%e of incident.
12. 3t )as also found that it is for this reason only that accused
&her &in+h .ana clai%ed in his press conference at C'oon !ress lubF
that in the incident in =uestion one .a*ender )as his associate so that later
on durin+ the course of trial the clai% of police could be falsified by
sho)in+ that accused .a*ender )as lod+ed in *ail as on the date of
incident. 'urin+ subse=uent in(esti+ation it )as also found that accused
&her &in+h .ana had also created false e(idence by +ettin+ one of his
e%ployee &har)an 7u%ar lod+ed in *ail in his na%e as &her &in+h .ana
in one already pendin+ case a+ainst hi% under @Bcise ,ct at /arid)ar.
4he sole intention )as a+ain to create a false plea of alibi to sho) that
&her &in+h .ana hi%self )as also lod+ed in *ail at the ti%e of incident. ,s
a part of the said conspiracy both accused &har)an 7u%ar )ho )as in *ail
)hile i%personatin+ hi%self as &her &in+h .ana and .a*ender )ere +ot
bailed out on 26.07.01 i.e. one day after the incident too- place. 4he
char+e sheet further states that durin+ the course of subse=uent
in(esti+ation it also ca%e to li+ht that one old friend of accused &her &in+h
.ana na%ely !ar(een $ittal )ho )as a practicin+ ,d(ocate at .oor-ee
ourt )as also an acti(e %e%ber of the conspiracy. 3t )as accused
!ar(een $ittal )ho +a(e all such ad(ise of creatin+ false plea of alibi to
accused &her &in+h .ana and his associates so that they %ay escape
punish%ent fro% the ourt of la). 3t also ca%e to li+ht that at the as-in+ of
accused &her &in+h .ana accused !ar(een $ittal had %ade a(ailable one
re(ol(er labelled C$,'@ 32 328@2'F to hi% -no)in+ fully )ell that the
sa%e is +oin+ to be used in co%%ittin+ %urder of &%t. !hoolan 'e(i.
13. ,s re+ards the %oti(e to co%%it the %urder of &%t. !hoolan
'e(i it ca%e to the -no)led+e of police that accused &her &in+h .ana
)as an a%bitious person ri+ht fro% his colle+e days. &her &in+h .ana
belon+ed to 4ha-ur co%%unity )hich )as a+ainst &%t. !hoolan 'e(i as
she had -illed 22 4ha-urs in the ill1fa%ous CBeh%ai -illin+F. ,ccused &her
&in+h .ana thus )anted to a(en+e the said %assacre of 4ha-urs by &%t.
!hoolan 'e(i and in the process )anted to beco%e a self proclai%ed
leader of 4ha-ur co%%unity and to also earn fa%e and %oney by short cut
%ethods. /e also assured the other conspirators that once he establishes
hi%self in the political arena then he )ill help the% in their li(es. 3t also
ca%e to the -no)led+e of police that the said conspiracy )hich )as
pri%arily in the %ind of accused &her &in+h .ana )as bein+ hatched by
hi% o(er a lon+ period of ti%e and in order to arran+e finance for it he
alon+)ith other associates co%%itted t)o acts of robbery in the year 2000
and 2001 )herein .s. 10 lacs and .s. 15 lacs respecti(ely )ere looted
fro% t)o ban-s. 3t )as also found that fro% the said looted a%ount
accused &her &in+h .ana +ot a country li=uour (end alloted in the na%e
of one of his friend !0162 !an-a* 7alra so that %ore %oney could be
+enerated in order to eBecute the %urder of &%t. !hoolan 'e(i. !olice
also ca%e to -no) that accused &her &in+h .ana had initially de(eloped
close relations )ith &%t. !hoolan 'e(i by (isitin+ her house fre=uently )ith
one 6%a 7ashyap and her husband 9i*ay 7ahsyap. 6%a 7ashyap )as a
social )or-er fro% /arid)ar area and )as a )or-er of C@-la(ya &enaF a
party floated by &%t. !hoolan 'e(i. 3t also ca%e to the -no)led+e of police
that prior to house no. 445 ,sho-a .oad &%t. !hoolan 'e(i )as residin+
at hitran*an !ar- and e(en there accused &her &in+h .ana had carried
out a sur(ey of the area by stayin+ in one C,%antaran +uest houseF near
the house of &%t. !hoolan 'e(i but did not find the ti%e and place to be
suitable to co%%it her %urder.
14. 4he char+e sheet further states that the subse=uent
in(esti+ation also sho)ed that yet one other re(ol(er )as purchased by
accused &her &in+h .ana fro% one ,%it .athi )ho )as the o)ner of
C&ubhash :un /ouseF in .oor-ee and )as an old friend of accused &her
&in+h .ana. 8ater5 on the ad(ise of accused !ar(een $ittal5 accused &her
&in+h .ana )ith the help of ,%it .athi also +ot the +roo(es of the
re(ol(ers ta%pered )ith so that later on )hen the re(ol(ers are reco(ered
than the sa%e could not be co1related )ith the fired bullets. 3t also ca%e to
the notice of police that the youn+er brother of accused &her &in+h .ana
na%ely 9i*ay &in+h G .a*u )as assi+ned the role of +ettin+ &har)an
7u%ar and .a*ender )ho )ere lod+ed in *ail5 bailed out by furnishin+ fa-e
sureties and false docu%ents. /e )as also told to flee a)ay alon+)ith
other fa%ily %e%bers soon after the incident and )hich role he actually
played soon after the incident. 4he police also found that in order to
eBecute the plan accused &her &in+h .ana had also arran+ed a %obile
phone no. 9837237160 and had also chec-ed on 24.07.01 that &%t.
!hoolan 'e(i )as a(ailable at her house since the !arlia%ent )as in
session durin+ those days. /e had accordin+ly re=uested 6%a 7ashyap
and her husband 9i*ay 7ashyap to co%e to 'elhi alon+)ith hi% to the
house of &%t. !hoolan 'e(i and had accordin+ly ta-en the% in his ar 2o.
C3$1907F on that day fro% .oor-ee to 'elhi. /is three other co1
conspirators &he-har &in+h5 .a*bir &in+h and 'han !ar-ash )ere
tra(ellin+ in one other )hite $aruti ar nu%ber 6!114B17559. !rior to it
accused &her &in+h .ana had also purchased t)o country %ade pistols
)ith li(e cartrid+es fro% one %ust-ee%.
15. 4hus on 25.07.2001 )hile &her &in+h .ana hi%self )as
carryin+ %obile phone nu%ber 9837237160 another %obile phone 2o.
9837222779 )as )ith accused .a*bir )ho )as tra(ellin+ )ith &he-har and
'han !ar-ash in the other )hite $aruti ar. $obile !hone no.
9837222779 belon+ed to !013 7o(id Batra a friend of accused &her
&in+h .ana and fro% )ho% the %obile phone )as borro)ed by 9i*ay
&in+h G .a*u5 the youn+er brother of accused &her &in+h .ana. 4hus
accused &her &in+h .ana )as in constant touch )ith the occupants of the
other ar on his )ay fro% .oor-ee to 'elhi. /o)e(er at :aAiabad
accused &her &in+h .ana and .a*bir chan+ed their &3$ cards and
accused &her &in+h .ana started usin+ no. 9811374806 and accused
.a*bir started usin+ no. 9811374810. 4he said t)o &3$& )ere +ot
arran+ed throu+h &he-har &in+h )ho purchased the% in 'elhi.
16. ,fter reachin+ the house of &%t. !hoolan 'e(i accused &her
&in+h .ana )ho )as a re+ular (isitor to her house and )as also )ell
-no)n to the fa%ily %e%bers and personal staff of &%t. !hoolan 'e(i )as
as-ed by &%t. !hoolan 'e(i to drop her at !arlia%ent house as her o)n
ar )as not a(ailable )ith her on that day. ,ccordin+ly after droppin+ &%t.
!hoolan 'e(i and her !&# outside the +ate of !arlia%ent /ouse accused
&her &in+h .ana returned bac- and alon+)ith accused 'han !ar-ash and
&he-har and started )aitin+ for the return of &%t. !hoolan 'e(i )hile
sittin+ in his ar no. 3$1907 par-ed on the road outside the house of &%t.
!hoolan 'e(i. 0hen at about 1.30 ,$ &%t. !hoolan 'e(i alon+)ith her
!&# returned in the ar of one other $e%ber of !arlia%ent and )hen
after +ettin+ do)n fro% the ar outside her house )as in the process of
enterin+ inside her house than both accused &her &in+h .ana and 'han
!ar-ash started firin+ to)ards the%. 3n the %eanti%e accused &he-har
reached near the +ate )ith ar 2o. 3$1907 and all three fled a)ay in it.
17. /o)e(er for so%e reason accused .a*bir )ho )as to pro(ide
bac- up in the other 0hite $aruti ar could not follo) ar 2o. 3$1907
and thus the three persons had to flee a)ay in a 4&. 2o. '811.;10235 of
!01114 Bahadur &hah after lea(in+ their ar on !andit !ant $ar+. #n the
)ay )hile accused &he-har +ot do)n fro% the 4&. at near $andi /ouse
accused &her &in+h .ana and 'han !ar-ash also left the 4&. after so%e
further distance and boarded a bus and thereafter )ent separately. 0hile
accused &he-har left for so%e un-no)n place5 accused &her &in+h .ana
in the %eanti%e reached :haAiabad and on the )ay he contacted accused
.a*bir &in+h on his %obile phone and told hi% to %eet hi% at :haAiabad.
18. 8ater on accused &he-har &in+h also contacted accused &her
&in+h .ana on his %obile phone fro% a !# in $eerut and he )as also
accordin+ly pic-ed up by the% fro% near $eerut by1pass in the said
$aruti ar bein+ dri(en by .a*bir &in+h. ,ll three first )ent to /arid)ar
and stayed at hotel C!ra%ilaF )here accused &her &in+h .ana %ade an
entry in the na%e of ,noop &in+h in the re+ister of the hotel. 3n the
%eanti%e accused !ardeep stood surety for &har)an 7u%ar in the ourt
at /arid)ar i%personatin+ as 9i*ay &in+h and also furnished false
docu%ents of &cooter 2o. 6! 10, 9630. #ne &urender &in+h and .a*bir
&in+h ho)e(er stood surety for accused .a*ender )hile i%personatin+ as
9irender :iri and &he-har &in+h and also furnished false docu%ents of
&cooter 2o. 6! 10B 9577 and 6! 10 B 3007 respecti(ely. #n the ni+ht of
26.07.01 accused &her &in+h .ana5 .a*bir &in+h5 .a*ender and &he-har
&in+h stayed at hotel C:an+a 9ie)F at .ishi-esh .oad5 /arid)ar and
entries in the re+isters of the hotels )ere %ade by &he-har &in+h.
4hereafter on 27.07.01 they all reached 'ehradun and )here accused
&her &in+h .ana addressed a !ress onference at C'oon !ress lubF
confessin+ his role in the %urder of &%t. !hoolan 'e(i. /e further stated in
the !ress onference that one .a*ender G .a(inder )as the other
assailant )ith hi% )ho had fired on t. Balender. 3t )as soon after the
!ress onference that the police of !& 'allan)ala arrested hi% *ust
outside the !ress lub.
19. 4he char+e sheet further states that in the %eanti%e on
30.07.01 !01160 6%ed &in+h husband of &%t. !hoolan 'e(i infor%ed 3#
3nspector &uresh 7aushi- in )ritin+ that t)o country %ade pistols )ere
lyin+ in the +ara+e of house no. 445 ,sho-a .oad. /e further stated that he
)as told about the said 7attas by !01127 .a% hander 7ashyap )ho in
turn )as told about it by !01141 .an*it 7u%ar )ho had seen the said t)o
country %ade pistols lyin+ in the +ara+e. /o)e(er it )as re(ealed that
one 7esha( hauhan a (isitor to the house of &%t. !hoolan 'e(i had
pic-ed up the said pistols fro% the spot soon after the incident. 4he said
t)o -attas )ere also ta-en into possession by the police fro% inside the
+ara+e. 4hereafter on 07.08.01 accused &her &in+h .ana )as arrayed for
43! but he refused to participate therein. 3n the %eanti%e accused ,%it
.athi5 !ar(een $ittal and 7esha( hauhan also ca%e to be arrested on
02.08.01. ,ccused 'han !ar-ash )as ho)e(er arrested fro% .oor-ee on
04.08.01 by 3nsp. 7.!. &in+h and he also refused to participate in 43!
)hen produced in the ourts at 'elhi on 05.08.01. 4hereafter on 08.08.01
accused !ardeep &in+h and &urender &in+h )ere also arrested at !&
&ha%pur5 /arid)ar and accused 9i*ay G .a*u )as arrested on 10.08.01.
,ccused &har)an 7u%ar ho)e(er could not be arrested and )as
accordin+ly +ot declared a proclai%ed offender. 4he char+e sheet further
states that in the %ean ti%e the identity of accused &her &in+h .ana5
.a*bir5 'han !ar-ash and &he-har &in+h )as +ot established by )ay of
photo 43! fro% t. Balender and 4&. dri(er Bahadur &hah and ,&3 &ri
7rishan as e(en accused .a*bir )as seen by ,&3 &hri 7rishan on 25.07.01
)hile standin+ near !andit !ant $ar+ )ith )hite $aruti ar no. 6!114B1
7559. ,&3 &hri 7rishan had initially tried to challan accused .a*bir on the
+round of )ron+ par-in+ but let hi% off )hen accused .a*bir pleaded for
for+i(eness statin+ that he )as ne) to 'elhi. ,&3 &ri 7rishan had ho)e(er
noted do)n the nu%ber of the car on the co(er pa+e of his challan boo-.
20. &ubse=uently the speci%en fin+er i%pressions of the accused
persons )ere ta-en besides their speci%en hand )ritin+ and si+natures for
co%parison )ith the chance fin+er prints lifted fro% the t)o ars and the
re(ol(ers besides )ith (arious re+isters of the hotels )here accused
persons had stayed soon after the incident or the record of the ourts at
/arid)ar or that of /arid)ar *ail. 0hile chance prints lifted fro% 0ebley E
&cott labelled re(ol(er tallied )ith that of accused 'han !ar-ash G 9ic-y5
the other three chance prints reco(ered fro% the other re(ol(er labelled
C%ade in 3nlendF tallied )ith that of accused &her &in+h .ana. ;our out of
the siB chance prints lifted fro% ar 2o. 6! 10B 3007 tallied )ith that of
accused .a*bir &in+h. 3t )as also found that the thu%b i%pression of
accused &her &in+h .ana did not tally )ith the thu%b i%pression as )as
there in the re+ister of /arid)ar *ail )herein he )as sho)n to ha(e been
lod+ed. >Later on in the %ear 6,,! when acc*sed Sharwan (*mar was
arrested then his th*mb im)ression were also taken and the same tallied
with the one which were there on the +*dicial ile in the -o*rts at .aridwar
and also with the .aridwar +ail record.? 4his fact lent support to the
conclusion of the police that accused &her &in+h .ana had infact tried to
create a false plea of alibi by +ettin+ accused &har)an 7u%ar lod+ed in
the *ail i%personatin+ as accused &her &in+h .ana. 4he onstables
posted in the court of 8d. ,<$5 /arid)ar or at the /arid)ar *ail also
confir%ed that &her &in+h .ana )as not the person )ho )as lod+ed in the
*ail. ,s re+ards the bullets reco(ered fro% the body of &%t. !hoolan 'e(i
and her !&# t. Balender the Ballistic eBpert report confir%ed that the
sa%e )ere fired fro% the t)o re(ol(ers or -attas so reco(ered. 3t )as also
found that in order to %islead the police accused .a*ender had deliberately
about 15 days prior to the incident +ot hi%self arrested in an @Bcise ,ct
case at /arid)ar )hile carryin+ a can of li=uour. #n the other hand
&urinder &in+h .ana father of accused &her &in+h .ana had intentionally
%o(ed an application in an @Bcise ,ct case already pendin+ a+ainst &her
&in+h .ana before the courts at /arid)ar see-in+ )ithdra)al of his surety
and thereby facilitatin+ the arrest of accused &har)an 7u%ar on 18.07.01
i%personatin+ as &her &in+h .ana.
21. 4he char+e sheet further states that %ust-ee% fro% )ho%
accused &her &in+h .ana had procured t)o -attas )as found to be lod+ed
in $uAaffar 2a+ar *ail in a case of !& 7ot)ali5 $uAaffar 2a+ar and )as
accordin+ly interro+ated o(er there in the *ail itself. /o)e(er stran+ely the
char+e sheet further states that %ust-ee% or &urinder &in+h .ana5 the
father of &her &in+h .ana )ere not char+e1sheeted as sufficient e(idence
could not co%e on record. 2Page 99 o the charge>sheet3
22. 4hus initially char+e sheet )as filed a+ainst 11 accused
persons na%ely &her &in+h .ana G &heru G !an-a*5 &he-har &in+h
!an)ar5 .a* Bir &in+h5 .a*ender &in+h G .a(inder &in+h5 'han !ar-ash
G 9ic-y G 'heera*5 9i*ay &in+h G .a*u5 !ardeep &in+h5 &urinder &in+h
2e+i G &uri5 !ar(een $ittal and ,%it .athi and 7esha( hauhan )ith
accused &har)an 7u%ar sho)n as proclai%ed offender. /o)e(er
subse=uently accused &har)an 7u%ar also ca%e to be arrested on
10.07.2004 and a supple%entary char+e sheet )as filed a+ainst hi%.
23. ,fter due co%pliance of &. 207 r.! (arious char+es )ere
fra%ed a+ainst the accused persons (ide order dated 17.09.2002 by the
then 8d. !redecessor of this ourt to )hich they all pleaded not +uilty and
clai%ed trial.
24. ,fter filin+ of the supple%entary char+e sheet a+ainst accused
&har)an 7u%ar char+es )ere also far%ed a+ainst hi% by5 the then5 8d.
!redecessor of this ourt (ide order dated 01.02.2005. /e also ho)e(er
pleaded not +uilty to the char+es so fra%ed and clai%ed trial.
25. 3n order to present a co%prehensi(e (ie) of the char+es so
fra%ed a+ainst (arious accused persons by the then 8d. !redecessors the
sa%e ha(e been reproduced hereinafter in a tabular for%"
S.
No
Na+e o"
a''0se-
CHAR=ES FRA?ED
>3? >33? >333? >39?
1 &her &in+h
.ana G &heru
G !an-a*
U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- Se'!#o% 2.62, o" A)+s A'!
U6s 302630,
)61 S. 34 IPC
U6s 13 IPC,
U6s 302, 30,
)61 S. 34 IPC
8 2. /1B362,
A)+s A'!
2 &he-har &in+h
!an)ar
U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- Se'!#o% 2.62, o" A)+s A'!
U6s 302630,
)61 S. 34 IPC
U6s 302, 30,
)61 S. 34 IPC
3 .a* Bir &in+h U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- Se'!#o% 2.62, o" A)+s A'!
U6s 302630,
)61 S. 34 IPC
U6s 416475
a%- 06s 4,1
)61 S. 475
IPC
U6s 302,
30, )61 S.
34 IPC
4 .a*ender &in+h
G .a(inder
&in+h
U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- Se'!#o% 2.62, o" A)+s A'!
5 'han !ar-ash
G 9ic-y G
'heeera*
U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- Se'!#o% 2.62, o" A)+s A'!
U6s 302630,
)61 S. 34 IPC
U6s 302630,
)61 S. 34 IPC
U6s 30,
IPC, 2.
/1B362,
A)+s A'!
6 9i*ay &in+h G
.a*u
U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- Se'!#o% 2.62, o" A)+s A'!
7 !ardeep &in+h U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- 06s 2.62, o" A)+s A'! a%-
U6s 416475
a%- 06s 4,1
)61 S. 475
IPC
8 &urinder &in+h
2e+i G &uri
U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- Se'!#o% 2.62, o" A)+s A'!
U6s 416475
IPC
9 !ar(een $ittal U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- Se'!#o% 2.62, o" A)+s A'!
2. /1B3 A)+s
A'!
)61 se'!#o%
2 A)+s A'!
10 ,%it .athi U6s 120-B )61 Se'!#o%s
302613641647564,1 IPC
a%- Se'!#o% 2.62, o" A)+s A'!
2. /1B3 A)+s
A'!
)61 se'!#o%
2 A)+s A'!
11. 7esha(
hauhan
U6s 201 IPC
SUPPLE?ENTARD CHAR=E SHEET
12. &har)an
7u%ar
U6s 120B )61 Se'!#o% 302613641647564,1 a%- 06s 2.62, A)+s A'! a%-
416475613 IPC
26. !rosecution thereafter in order to pro(e its case eBa%ined 171
)itnesses. 4he accused persons )ere thereafter eBa%ined u/s 313 r.!.
4hey ho)e(er eBa%ined fi(e >5? )itnesses in their defence. ;i(e >5?
)itnesses )ere ho)e(er also eBa%ined as ourt )itnesses.
67. It will be also worthwhile to mention over here that during
the course of trial one of the accused namely Pardeep expired and
the proceedings against him accordingly stood abated.
28. Before ad(ertin+ further 3 %ay state that )hile narratin+ the
facts as are e%er+in+ fro% the char+e sheet filed by the police5 3 ha(e
consciously reproduced certain portions of the char+e sheet (erbati% by
usin+ the phrase CThe further investigation revealed ........F. 4he
pri%ary reason for reproducin+ the facts in the aforesaid %anner )as that
the said aspect of further in(esti+ation ho)e(er could not be co1related to
a lar+e eBtent )ith the nature of in(esti+ation carried out or the e(idence
so collected and led on record by the prosecution. 4o support %y aforesaid
preposition 3 shall be discussin+ in detail herein after the nature of
e(idence )hich )as collected by the in(esti+atin+ a+ency durin+ the
course of in(esti+ation and as )as subse=uently led by the prosecution
(is1a1(is (arious circu%stances sou+ht to be pro(ed by the prosecution.
29. ,t this sta+e 3 )ould also li-e to %ention as to ho) 3 intend to
discuss the prosecution e(idence in the present case a+ainst (arious
accused persons since the prosecution has eBa%ined as %any as 171
)itnesses.
30. Beside the e(idence of co%plainant !0152 7ali haran5 !01
73 t. Balender5 !01104 $unni 'e(i5 !01114 Bahadur &hah and !01129
9inod 9ish)anath5 )ho all clai%ed to ha(e seen the assailants5 the
prosecution case pri%arily rests upon circu%stantial nature of e(idence.
4hus 3 )ould be first delineatin+ the (arious incri%inatin+ circu%stances by
(irtue of )hich the prosecution has sou+ht to connect each of the accused
persons )ith the offence in =uestion. 4hereafter 3 shall be discussin+ the
e(idence led by the prosecution =ua each of the said circu%stances
a+ainst (arious accused persons and shall also be discussin+ alon+side as
to )hether the prosecution has been successful in pro(in+ each of the said
circu%stances by so%e le+ally ad%issible e(idence or not.
31. 4he deposition of fi(e >5? defence )itnesses or that of fi(e >5?
ourt )itnesses shall also be discussed alon+side )here(er found
rele(ant. ,fter this %icroscopic analysis of the (arious circu%stances on
the touchstone of Cle+ally ad%issible e(idenceF5 3 shall be discussin+ the
said pro(ed circu%stances if any5 co%prehensi(ely to assess as to
)hether they for% such a continuous chain of circu%stances )hich %ay
lead to only one conclusion )hich is consistent )ith the +uilt of the
accused persons or )hether they are eBplainable on any other hypothesis
consistent )ith the innocence of the accused persons.
32. ,t this sta+e 3 )ould li-e to %ention certain obser(ations of
/onHble ,peB ourt )hich ha(e been reiterated by /onHble 'elhi /i+h
ourt also recently in the case C9#s(a$ Da-a< <. S!a!e o" U.P., C)$. A.
,4162005 D.O.D. 02.04.2014F .
?*stice to all @ the acc*sed, the societ% as well as a air
chance to )rove to the )rosec*tion @ is not onl% an
integral )art o the criminal +*stice s%stem b*t it is its )rime
ob+ective. &his inds reiteration b% the S*)reme -o*rt o
India in the +*dgment re)orted at 26,163 A S-- 6B9,
Da%al Singh and /rs. v. State o 'ttaranchal when the
co*rt em)hasiCed th*sD
9!. Ehere o*r criminal +*stice s%stem )rovides
saeg*ards o air trial and innocent till )roven g*ilt% to an
acc*sed, there it also contem)lates that a criminal trial is
meant or doing +*stice to all, the acc*sed, the societ% and
a air chance to )rove to the )rosec*tion. &hen alone can
law and order be maintained. &he co*rts do not merel%
discharge the *nction to ens*re that no innocent man is
)*nished, b*t also that a g*ilt% man does not esca)e.
0oth are )*blic d*ties o the +*dge. D*ring the co*rse o
the trial, the learned Presiding ?*dge is e<)ected to work
ob+ectivel% and in a correct )ers)ective. Ehere the
)rosec*tion attem)ts to misdirect the trial on the basis o a
)er*nctor% or designedl% deective investigation, there
the -o*rt is to be dee)l% ca*tio*s and ens*re that des)ite
s*ch an attem)t, the determinative )rocess is not
s*bverted. $or tr*l% attaining this ob+ect o a Fair trial,
the -o*rt sho*ld leave no stone *nt*rned to do +*stice
and )rotect the interest o the societ% as well.;
33. 4hus the (ery ob*ecti(e of a cri%inal trial is to ensure that a fair
trial is %ade a(ailable not only to the state bein+ represented by the
prosecution but also to the accused persons. 4he said principal of fair trial
ho)e(er has its basis in the rule of la). 4he rule of la) per1supposes that
the &tate place before the ourt all such facts and circu%stances )hich
co%e up durin+ the course of in(esti+ation e(en thou+h the said facts and
circu%stances %ay or %ay not support the case of the prosecution or in
other )ords those circu%stances also )hich %ay fa(our the accused.
&i%ilar is the duty of 8d. 'efence ounsel to place all such facts as are
a(ailable )ith the% before the ourt of la) and thereby lea(in+ it to the
ourt to dra) a conclusion as to the +uilt or innocence of the accused
persons. ,ny dereliction on this account either by the prosecution or by the
defence ounsel stri-es at the (ery roots of the functionin+ of cri%inal
*ustice ad%inistration syste%.
34. 4he rule of la) per1supposes that any e(idence sou+ht to be
led by the prosecution a+ainst the accused %ust be held to be ad%issible
under the substanti(e as )ell as procedural la) of the land. 4hus not only
the trial of a cri%inal case is to be carried out in accordance )ith the
pro(isions of ode of ri%inal !rocedure but also the e(idence led should
confir% to the principles of 3ndian @(idence ,ct5 1872 >3n short hereinafter
referred to as C@(idence ,ctF?. /o)e(er if so%e e(idence has been led on
record )hich is contrary to the pro(isions of @(idence ,ct5 then the
=uestion arises as to )hether the said e(idence can be read a+ainst the
accused persons or not.
35. $y subse=uent discussion is +oin+ to hi+h li+ht the i%portance
of the aforesaid preposition as 3 ha(e found that so%e e(idence led by the
prosecution is not in accordance )ith the pro(isions of @(idence ,ct and
the =uestion )hich )ill arise is as to )hat )ei+ht can be +i(en to such
e(idence.
36. 3 a% accordin+ly no) delineatin+ the (arious incri%inatin+
circu%stances throu+h )hich prosecution see-s to pro(e its case a+ainst
different accused persons. /o)e(er alon+side the said incri%inatin+
circu%stances 3 ha(e also %entioned na%es of so%e of the prosecution
)itnesses throu+h )ho% the prosecution has pri%arily atte%pted to pro(e
the said circu%stances. 4he deposition of these )itnesses shall be
discussed and analyAed -eepin+ in (ie) the deposition of other
prosecution )itnesses also and especially that of (arious police officers
)ho ha(e been associated )ith the in(esti+ation. 3 ha(e ho)e(er
esche)ed their reference alon+side each of the circu%stances %entioned
belo) for the sa-e of bre(ity.
37. /o)e(er at the end of the follo)in+ list of circu%stances as
are e%er+in+ fro% the case of prosecution 3 shall be %entionin+ the na%es
of all the prosecution )itnesses >171? beside the defence )itnesses >5?
and the ourt )itnesses >5? eBa%ined durin+ the course of present lon+
trial in a tabulated for% for a ready reference.
A''0se- S(e) S#%&( Ra%a
He #s s!a!e- !o Ae !(e +as!e)+#%- o" !(e e%!#)e 'o%sB#)a'2.
?OTI9E
>i? ,ccused &her &in+h .ana )as an a%bitious person. /e e(en
contested elections of the student union in his &chool and olle+e and )as
desirous of ac=uirin+ na%e and fa%e early in his life e(en thou+h by
adoptin+ short cut %ethods. >!0317o(id Batra5 PE>66 ?aved (han, PE>
9, #a+a (*mar, PE>9! "n*rag &%agi?
>ii? ,ccused &her &in+h .ana not only )anted to a(en+e the
-illin+ of tha-urs by &%t. !hoolan 'e(i in the Bha%ai $assacre but also
)anted to earn leadership of the 4ha-ur co%%unity by co%%ittin+ so%e
sensational act. >PE>1!, "dvocate #a+esh #astogi, PE>169 "SI 0raham
Prakash?
P)eBa)a!#o%
>iii? 3n order to arran+e finance accused &her &in+h .ana
alon+)ith his associates co%%itted t)o ban- robberies in /arid)ar area in
the year 2000 and 2001 and robbed a su% of .s. 10 lacs and .s. 15 lacs
respecti(ely. >PE>79 .- 1. (. &%agi, PE>9A .- 1ishal Mani?
>i(? 3n order to +enerate %ore finances he +ot a li=uour (end
allotted in the na%e of one of his friend !062 !an-a* 7alra at 4e*upur
.oor-ee by in(estin+ the proceeds of cri%e of the aforesaid t)o robbery
cases. /e also e%ployed co1accused &har)an 7u%ar5 !ardeep and
&urender in the said li=uour (end )ho )ere associated )ith hi% later on in
the present conspiracy. >PE>!1 ". (. Sharma, PE>B6 Panka+ (alra,
PE>19,, /m)al, PE>99 San+a% (*mar?
>(? /e obtained le+al ad(ise fro% his friend !ar(een $ittal >co1
accused? )ho )as a practisin+ ,d(ocate at .oor-ee as to ho) to
%eticulously carry out the plan to %urder &%t. !hoolan 'e(i and later on
ho) to escape a)ay fro% the punish%ent. >PE>B6 Panka+ (alra,
DE>1 acc*sed Parveen Mittal himsel, PE>17, "-P S*resh (a*shik?.
>(i? /e also procured one re(ol(er %a-e C$,'@ 32 328@2'F fro%
his co1accused !ar(een $ittal so as to use it in achie(in+ the ob*ecti(e of
cri%inal conspiracy. /e infact used it to co%%it %urder of &%t. !hoolan
'e(i. >PE>B6 Panka+ (alra?
>(ii? /e also obtained yet one other re(ol(er %a-e C0@B8@D E
&#44F fro% one of his friend co1accused ,%it .athi o)ner of C&ubhash
:un /ouseF in .oor-ee. /e also +ot the +roo(es of the re(ol(er ta%pered
)ith throu+h one ,fa= ,h%ed a )or-er in the shop of ,%it .athi so as to
a(oid its lin-a+e )ith the bullets to be fired fro% it. >PE>7, "aG "hmed?
>(iii? /e de(eloped inti%acy )ith one 6%a 7ashyap and her
husband 9i*ay 7ashyap throu+h co1accused .a*bir so as to ha(e access to
the house of &%t. !hoolan 'e(i. >PE>17 'ma (ash%a), PE>1A 1i+a%
(ash%a)?
>iB? /e did a sur(ey of the house of &%t. !hoolan 'e(i )hen she
)as residin+ at hitran*an !ar- and stayed at C,a%antaran :uest /ouseF
for three days but did not find the ti%e and place to be suitable to %urder
her. >PE 1 4irmal -handra Sarba+na and PE>9, #a+a (*mar?.
>B? /e *oined his brother 9i*ay &in+h besides accused &he-har5
'han !ar-ash5 &urender &in+h5 &har)an 7u%ar5 !ardeep &in+h5 .a*bir5
.a*ender &in+h5 all his prior ac=uaintances in the conspiracy to co%%it
%urder of !hoolan 'e(i and that of her !&# t. Balender )hile assurin+
all the co1accused persons of help in their future life once he hi%self +ot
settled in the politics. >PE>B6 Panka+ (alra?
>Bi? /e alon+)ith his other co1associates held a %eetin+ at his
house )herein all the plans to carry out the conspiracy to co%%it %urder
of &%t. !hoolan 'e(i and her !&# t. Balender )ere discussed and
specific roles )ere assi+ned to different persons. >PE>B6 Panka+ (alra?
>Bii? 3n furtherance of the co%%on ob*ect of the said cri%inal
conspiracy he ad(ised .a*ender G .a(inder to +et hi%self arrested in
so%e case in /arid)ar and to +et hi%self released on bail after the
incident. >PE>9! SI Inder Singh, PE>99 -t. "shwani (*mar, PE>!, -t.
4arinder Singh, PE>!6 1irender 5iri, PE>B6 Panka+ (alra, PE>A7 5anga
#am, PE>119 #a+ender Prasad Sharma and PE>16, "nil (*mar3
>Biii? /e as-ed co1accused &urender and .a*bir &in+h to stand
sureties for accused .a*ender G .a(inder under fa-e identity and on the
basis of false docu%ents. >!01119 .a*ender !rasad &har%a5 !01120 ,nil
7u%ar and PE>1!! Satish -ha*dhar%, "dvocate?
>Bi(? /e as-ed &har)an 7u%ar to +et hi%self arrested by
i%personatin+ hi%self as &her &in+h .ana in an already pendin+ case
under @Bcise ,ct a+ainst accused &her &in+h .ana in the court of 8d.
,<$115 /arid)ar and in order to facilitate the sa%e as-ed his father to
)ithdra) his surety so that &har)an 7u%ar %ay +o to *ail as &her &in+h
.ana. >PE>A9 SI .*shiaar Singh, PE>A7 5anga #am, PE>119 #a+ender
Prasad Sharma, PE>16, "nil (*mar, PE>19A "dvocate #amesh -hander
"ggarwal, PE>199 La<man Singh and PE>1!! "dvocate Satish
-ha*dhar%3
>B(? /e procured t)o country %ade pistols fro% one %ust-ee%.
>PE>17A Ins)ector 1ishn* -hand 5a*tam?
>B(i? /e purchased %obile phone nu%ber 9837237160 fro% !01
945 ,nura+ 4ya+i >!01169 .a*ender 7u%ar 4i)ari and !01171 9i(e-
$alhotra?
>B(ii? /e as-ed 'han !ar-ash to procure t)o %obile phone
nu%bers fro% 'elhi (iA. 9811374806 and (iA. 9811374810. >PE>1,6
5*lshan "rora?
>B(iii? /e as-ed his youn+er brother 9i*ay G .a*u to %a-e
necessary arran+e%ents initially for the arrest of &har)an 7u%ar as
accused &her &in+h .ana in the ourt and later on after the %urder of
&%t. !hoolan 'e(i to +ot both &har)an 7u%ar and .a*ender G .a(inder
released on bail on the basis of fa-e sureties and to also flee a)ay )ith
other fa%ily %e%bers fro% the house )ith !an-a* 7alra. >PE>199
La<man, PE>1!! "dvocate Satish -ha*dhar%, PE>B6 Panka+ (alra?
>BiB? 4hrou+h 9i*ay G .a*u he +ot arran+ed one %ore %obile
phone no. 9837222779 )hich 9i*ay borro)ed fro% his friend 7o(id Batra
>PE>9 (ovid 0atra?.
>BB? /e as-ed !an-a* 7alra another friend of his >)ho% he had
initiall% )ers*aded to +oin the cons)irac% b*t he did not agree? to also flee
a)ay after the incident alon+)ith his brother 9i*ay &in+h. >PE>B6 Panka+
(alra3
>BBi? /e stole one )hite $aruti ar bearin+ 2o. 6!114B 7559 )ith
an intention to use it as a bac-up ar at the ti%e of incident so as to
facilitate their escape fro% the spot after the incident. >PE>6! "SI Sri
(rishan and PE>97 ?eet Singh and PE>17, 0ina% (*mar Mishra3.
I%'#-e%! -a!e- 2..0,.2001
>BBii? ,fter ensurin+ that &%t. !hoolan 'e(i )as in 'elhi on
25.07.01 &her &in+h .ana persuaded 6%a 7ashyap and her husband
9i*ay 7ashyap to co%e to 'elhi alo+n)ith hi% to the house of &%t.
!hoolan 'e(i and thus ca%e to 'elhi alon+)ith the% on 25.07.01 in $aruti
ar 2o. 3$1907. >PE>17 'ma (ash%a), PE>1A 1i+a% (ash%a), PE>76
(ali -haran, PE>1,! M*nni Devi, PE>79 -t. 0alender3
>BBiii? /e as-ed his three other co1accused &he-har &in+h5 .a*bir
and 'han !ar-ash to follo) in another $aruti ar 2#. 6! 14B 7559 and
on the )ay to 'elhi he re%ained in constant touch )ith the% on %obile
phone. >PE>17 'ma (ash%a), PE>1A 1i+a% (ash%a), PE>1,6 5*lshan
"rora3.
>BBi(? #n reachin+ :haAiabad he as )ell as accused .a*bir &in+h
both chan+ed their &3$ cards and started usin+ &3$ 2o. 9811374806 E
9811374810. >!01102 :ulshan ,rora5 the nodal officer @&&,.3
>BB(? #n the as-in+ of &%t. !hoolan 'e(i he dropped her and her
!&# t. Balender to !arlia%ent in the %ornin+ hours as the ar of &%t.
!hoolan 'e(i )as not a(ailable. >PE>76 (ali -haran, PE>1,! M*nni Devi
and PE>79 -t. 0alender3
>BB(i? 4hereafter he alon+)ith co1accused 'han !ar-ash and
&he-har )aited in his ar 2o. 3$1907 outside the house of &%t. !hoolan
'e(i i.e. 44 ,sho-a .oad5 2e) 'elhi and as-ed .a*bir to re%ain present
)ith the other 0hite $aruti ar nearby and to pro(e it as a bac- up (ehicle
after the incident to facilitate their escape. >PE>6! "SI Sri (rishan, PE>79
.- 0alender, and PE>97 ?eet Singh3
>BB(ii? ,t about 1.30 !$ )hen &%t. !hoolan 'e(i returned fro%
!arlia%ent alo+n)ith his !&# t. Balender both accused &her &in+h .ana
and 'han !ar-ash ca%e out of the ar and )hile he fired at &%t. !hoolan
'e(i initially fro% country %ade pistol and thereafter fro% the re(ol(er
C$,'@ 32 328@2'F his co1accused 'han !ar-ash fired at t. Balender
initially )ith a country %ade pistol and thereafter )ith re(ol(er %a-e
C0@B8@D E &#44F resultin+ in the death of &%t. !hoolan 'e(i and
+rie(ous in*uries to t. Balender. 4hey both also dropped the t)o country
%ade pistols on the spot itself. >PE>B S*rinder Sharma5 PE>76 (ali
-haran, PE>79 -t. 0alender, PE>1,! M*nni Devi and PE>169 1inod
1ishwanath?
>BB(iii? /e alon+)ith accused 'han !ar-ash thereafter fled a)ay fro%
the spot in $aruti ar 2o. 3$1907 bein+ dri(en by accused &he-har and
)hen t. Balender fired at their ar then he and his associates retaliated
by firin+ fro% inside the ar. 4he firin+ resulted in bullet %ar-s on the rear
+lass of the ar. >PE>76 (ali -haran, PE>1,! M*nni Devi, PE>79 -t.
0alender, PE>169 1inod 1ishwanath, PE>19 "SI Satish ?oshi and PE>6!
"SI Sri (rishan3
>BBiB? /e and his associates left ar no. 3$1907 near !andit !ant
$ar+ and as the bac-up ar bein+ dri(en by accused .a*bir &in+h )as not
a(ailable so they boarded a 4&. 2o. '8 1. 0235 bein+ dri(en by !0
Bahadur &hah and after so%e distance they ali+hted fro% it and )ent in
different directions. >PE>169 1inod 1ishwanath, PE>11! 0ahad*r Shah3
>BBB? 0hile his co1accused persons )ent in different directions &her
&in+h .ana hi%self )ent to :haAiabad. #n the )ay he ran+ up accused
.a*bir &in+h on his %obile phone and as-ed hi% to %eet at :haAiabad
and thereafter tra(elled in the other )hite $aruti ar fro% :haAiabad
to)ards /arid)ar. ,ccused &he-har &in+h in the %eanti%e ran+ up
accused &her &in+h .ana fro% a !# at $eerut and decided to %eet
the% at $eerut by1pass and all three thereafter )ent to)ards /arid)ar.
>PE>1,6 5*lshan "rora?
>BBBi? ,t /arid)ar he and his associates stayed at hotel !ra%ila and
)here accused &her &in+h .ana %ade an entry in the hotel re+ister
i%personatin+ hi%self as ,noop &in+h and thereafter at hotel :an+a(ie)5
.ishi-esh .oad5 /arid)ar on 25.07.01 and 26.07.01 >PE>1,7 S*rvir
Singh, PE>11B Dee)ak P*rohit and PE>16! 0ab* #am D*be%3
>BBBii? #n 27.07.01 accused &her &in+h .ana addressed a !ress
onference at 'oon !ress lub and confessed that he alo+n)ith .a*ender
G .a(inder had -illed &%t. !hoolan 'e(i. &oon after the !ress
onference he )as arrested by the police of 'allan)ala5 'ehradoon and
)as handed o(er in the custody of 'elhi police. ,fter his arrest by the
police of !& 'allan)ala he a+ain ad%itted before !ress .eporters that he
has -illed !hoolan 'e(i. /is state%ent re+ardin+ in(ol(e%ent of .a*ender
in the present incident )as also found to be false. >!0186 &urinder
7apoor5 !0187 7ishore ,rora and PE>A9 #a+esh Sharma, PE>119 Ins).
#an Singh and PE>1!B Ins). Parikshit3
>BBBiii? /e )as brou+ht to 'elhi and )as produced in the court and
)as re%anded to 10 days police custody. /e thereafter %ade a disclosure
state%ent )herein he spilled the beans of the entire conspiracy besides
pointin+ out the place of incident and other places )here he alon+)ith his
other associates had +one after the incident. >PE>119, Ins). #an Singh,
PE>17, Ins)ector S*resh (a*shik?
>BBBi(? /e +ot reco(ered 9' of the fil% CBandit IueenF fro% his
house beside one diary )herein nu%bers of co1accused !ar(een $ittal
and ,%ti .athi )ere found )ritten by hi%. >PE 191 Ins). Satish Sharma
and PE>176 Ins). #a+ender 0hatia?
>BBB(? /e )as arrayed for 43! on 07.08.01 but he refused to
participate in it. >PE>17, "-P S*resh (a*shik?
>BBB(i? 4he 4&. dri(er Bahadur &hah in )hich accused &her &in+h
.ana alon+)ith &he-har &in+h and 'han !ar-ash had fled a)ay identified
accused &her &in+h .ana as one of the three boys )ho had boarded his
4&. on that day fro% his photo+raph )hen sho)n to hi% ha(in+ been
%iBed )ith photo+raphs of , other persons. >PE>11! 0ahad*r Shah?
>BBB(ii? !0 t. Balender )ho )as in*ured in the incident also identified
hi% fro% his photo+raph as one of the assailants and bein+ already -no)n
to hi%. >PE>79 -t. 0alender?
>BBB(iii? !0152 7ali haran5 !01104 $unni 'e(i and !01129 9inod
9ish)anth also identified hi% as bein+ one of the assailant. >PE>76 (ali
-haran, PE>1,! M*nni Devi and PE>169 1inod 1ishwanath?
>BBBiB? 4hree chance fin+er prints reco(ered fro% the re(ol(er C$,'@
32 328@2'F tallied )ith his thu%b i%pression upon co%parison at ;&8
>PE>19! ".P. 1erma and PE>1!A "wdesh (*mar, $inger Print H<)erts?.
>J8? 4he bullets reco(ered fro% the body of &%t. !hoolan 'e(i
)ere found to ha(e been fired fro% the said re(ol(er %a-e C$,'@ 32
328,2'F. >PE>1!9 (. -. 1arshene%, 0allistic H<)ert?.
>J8i? ,ccused &har)an 7u%ar )as found to ha(e lod+ed hi%self in
*ail on 18.07.2001 in the na%e of &her &in+h .ana in an already pendin+
case under @Bcise ,ct in the court of 8d. ,<$ at /arid)ar and ca%e out
on bail on 26.07.2001 >PE>A9 SI .*shiaar Singh, !0185 :an+a .a%5
!01119 .a*ender !rasad &har%a5 !01120 ,nil 7u%ar?
>J8ii? 4he thu%b i%pression on the court record and that of
/arid)ar *ail record did not tally )ith that of &her &in+h .ana >PE>197
Dee)a 1erma?
A''0se- S(e;(a) S#%&(
>i? /e )as an old ac=uaintance of accused &her &in+h .ana. /e
participated in a %eetin+ )ith &her &in+h .ana and others at the
residence of &her &in+h .ana and )here the entire plan of eBecutin+ the
%urder of &%t. !hoolan 'e(i and her !&# t. Balender )as )or-ed out
and roles assi+ned to different persons. >PE B6 Panka+ (alra?
>ii? /e procured t)o &3$ cards 2o. 9811374806 and 9811374810
fro% 'elhi for bein+ used in the eBecution of conspiracy. >PE>1,6 5*lshan
"rora?
>iii? /e tra(elled alon+)ith accused .a*bir and 'han !ar-ash to
'elhi in )hite $aruti ar 2o. 6!114B17559 fro% .oor-ee on 25.07.01 and
)as in constant touch )ith accused &her &in+h .ana throu+h %obile
phone a(ailable )ith accused .a*bir. >PE>17 'ma (ash%a) and PE>1A
1i+a% (ash%a) and PE>1,6 5*lshan "rora?
>i(? #n the )ay to 'elhi their car de(eloped so%e sna+ and they
+ot it repaired at C$ohan $otorsF. >PE>11A 4aresh?
>(? ,fter reachin+ 'elhi he alon+)ith accused &her &in+h .ana
and 'han !ar-ash )aited outside the house of &%t. !hoolan 'e(i )hile
sittin+ in +reen colour $aruti ar no. 3$1907 and he )as to dri(e car no.
3$1907 soon after the incident so as to facilitate the escape of &her &in+h
.ana and 'han !ar-ash fro% the spot. >PE>79 -t. 0alender?
>(i? 0hile co1accused &her &in+h .ana and 'han !ar-ash )ere
sittin+ inside the car )aitin+ for return of &%t. !hoolan 'e(i fro%
!arlia%ent5 he stood outside the car and )as seen by t. Balender )hen
he returned )ith &%t. !hoolan 'e(i fro% !arlia%ent /ouse. >PE>79 -t.
0alender?
>(ii? 0hile accused &her &in+h .ana fired to)ards &%t. !hoolan
'e(i5 accused 'han !ar-ash fired to)ards t. Balender initially fro% their
country %ade pistols and thereafter fro% the t)o re(ol(ers resultin+ in the
death of &%t. !hoolan 'e(i and +rie(ous in*uries to t. Balender and
thereafter they ran a)ay in car no. 3$1907 bein+ dri(en by hi% )hile
lea(in+ the country %ade pistols at the spot itself. !0 t. Balender
ho)e(er fired to)ards the% and the bullet hit the rear +lass of their car and
they also returned fire fro% the car to)ards t. Balender. >PE>76 (ali
-haran, PE>1,! M*nni Devi, PE>79 -t. 0alender, PE>169 1inod
1ishwanath3
>(iii? /e thereafter left ar no. 3$1907 at !andit !ant $ar+ and
left t)o %on-ey caps5 t)o re(ol(ers and 12 li(e cartrid+es on the rear seat
of the car and alon+)ith the t)o other co1accused persons boarded a 4&.
no. '8 1 .; 0235 of Bahadur &hah and on the )ay he +ot do)n fro% the
4&. and )ent to $eerut. >PE>11! 0ahad*r Shah, PE>169 1inod
1ishwanath3
>iB? ;ro% $eerut he ran+ up accused &her &in+h .ana on his
%obile phone fro% a !# and %et accused &her &in+h .ana and .a*bir
at $eerut by pass and tra(elled )ith the% in the )hite $aruti ar bein+
dri(en by accused .a*bir and they all stayed at /arid)ar in hotel !ra%ila
and )here accused &her &in+h .ana %ade an entry in the hotel re+ister
i%personatin+ hi%self as ,noop &in+h and thereafter they all stayed at
/otel :an+a 9ie)5 .ishi-esh .oad5 /arid)ar on 25.07.01 and 26.07.01.
>PE>1,7 S*rvir Singh, PE>11B Dee)ak P*rohit, PE>16! 0ab* #am
D*be% and PE>1B9 #a+ender (*mar &iwari3
>B? 4hereafter on 27.07.2001 he alon+)ith accused &her &in+h
.ana5 .a*bir and .a*ender )ent to 'ehradoon and )here accused &her
&in+h .ana )as arrested by the police soon after he addressed a press
conference at 'oon press lub but he alon+)ith other co1accused persons
fled a)ay. >!01146 3nsp. !ari-shit5 !0189 .a*esh &har%a?
>Bi? 4hereafter he alon+)ith other co1accused &he-har &in+h and
.a*ender G .a(inder stayed at hotel CDatri-F in 9i-as 2a+ar5 'ehradun
and thereafter at /otel ,sho-a in Da%una 2a+ar and at /otel :reen
3nternational in &aharanpur and )here accused &he-har %ade entries in
hotel re+isters in fictitious na%es. >PE>161 San+a% (a)oor and PE>167
Sat)al Singh?
>Bii? #n 30.07.01 he alon+)ith accused .a*ender G .a(inder and
.a*bir )as apprehended by the police of !& &aharanpur )hile they all
)ere +oin+ to surrender in the ourts at &aharanpur and at their instance
the said )hite $aruti ar )as also reco(ered fro% corner +ali ,sha
$odern &chool and i(il ourts. 4hereafter he alon+)ith accused
.a*ender and .a*bir )ere also for%ally arrested by the 'elhi police officers
and )ere brou+ht to 'elhi. >PE>199 Ins). (.P. Singh, PE>177 DSP 'med
Singh3
>Biii? /e pointed out the place of occurrence to the police and he
too refused to participate in 43! but later on )as identified by the )itnesses
i.e. t. Balender and 4&. dri(er Bahadur &hah and !0 9inod 9ish)anath
by )ay of photo 43! )hen his photo+raph )as sho)n to the% %iBed )ith
photo+raphs of 718 other persons. >PE>79 -t. 0alender, PE>11! 0ahad*r
Shah and PE>169 1inod 1ishwanath and PE>17, "-P S*resh (a*shik3
>Bi(? &iB chance prints )ere lifted fro% car no. 3$1907 and upon
co%parison the sa%e tallied )ith his thu%b and fin+er i%pressions. >PE>
1!9 S.(. -haddha3.
>B(? /e also %ade a disclosure state%ent )herein he spilled the
beans of entire conspiracy >PE>17, Ins)ector S*resh (a*shik3
A''0se- Ra4A#) S#%&(
>i? /e )as an old ac=uaintance of accused &her &in+h .ana and
he too participated in a %eetin+ )ith accused &her &in+h .ana and others
at the residence of &her &in+h .ana )here the entire plan of eBecutin+ the
%urder of &%t. !hoolan 'e(i and her !&# t. Balender )as )or-ed out
and roles assi+ned to different persons. >PE>B6 Panka+ (alra3
>ii? #n 25.07.2001 he alon+)ith accused &he-har &in+h and
'han !ar-ash ca%e to 'elhi )hile dri(in+ )hite $aruti ar 2o. 2o. 6!1
14B17559 )hile re%ainin+ in constant touch )ith accused &her &in+h
.ana throu+h %obile phone 2o. 9837222779. >PE>9 (ovid 0atra, PE>1,6
5*lshan "rora, PE>1B9 #. (. &iwari, PE>171 1ivek Malhotra3
>iii? #n the )ay to 'elhi their ar de(eloped so%e sna+ and they
+ot it repaired at C$ohan $otorsF :haAiabad. 2PE>11A 4aresh3
>i(? ,fter reachin+ 'elhi he )aited near :ol 'a-hana in the said
)hite $aruti ar 2o. 6!114B17559 so as to pro(ide bac-up to the other
co1accused persons i%%ediately after the incident so as to facilitate their
escape fro% the place of incident. >PE>6! "SI Sri (rishan and PE>97 ?eet
Singh3
>(? /e )as sou+ht to be challaned by ,&3 &hri 7rishan on account
of )ron+ par-in+ but )as let off by hi% on his re=uest that he is ne) to
'elhi but his ar 2o. 6! 10B 3007 )as noted do)n on the co(er pa+e of
the challan boo- by ,&3 &hri 7rishan. >PE>6! "SI Sri (rishan?.
>(i? ,fter the incident he ho)e(er could not pro(ide necessary
bac-up to the other co1accused persons and subse=uently %et accused
&her &in+h .ana at :haAiabad after he contacted hi% on his %obile
phone. >PE>1,6 5*lshan "rora?
>(ii? 4hereafter he alon+)ith accused &her &in+h .ana pic-ed up
accused &he-har fro% $eerut by pass and )ent to /arid)ar in the sa%e
0hite $aruti ar and stayed at /arid)ar at hotel !ra%ila and )here
accused &her &in+h .ana %ade an entry in the hotel re+ister
i%personatin+ hi%self as ,noop &in+h and thereafter they all stayed at
/otel :an+a(ie)5 .ishi-esh .oad5 /arid)ar on 25.07.01 and 26.07.01
respecti(ely. >PE>1,7 S*rvir Singh, PE>11B Dee)ak P*rohit and PE>16!
0ab* #am D*be%3
>(iii? #n 26.07.01 he stood surety for accused .a*ender G
.a(inder in the court of 8d. ,<$115 /arid)ar by i%personatin+ hi%self as
&he-har &in+h on the basis of false docu%ents of &cooter 2o. 6! 10B
3007. >PE>19! Dee)a 1erma, PE>199 La<man Singh and PE>1!! Satish
-ha*dhar%, PE>177 -het #am3
>iB? #n 27.07.01 he alon+)ith &he-har &in+h5 .a*ender and &her
&in+h .ana reached 'ehradun and after accused &her &in+h .ana )as
arrested by the police of !& 'allan)ala5 'ehradun soon after he
addressed a press conference at C'oon !ress lubF he alon+)ith other co1
accused persons fled a)ay fro% there. >PE>A9 #a+esh Sharma, PE>1!B
Ins)ector Parikshit (*mar3
>B? 4hereafter he alon+)ith other co1accused &he-har &in+h and
.a*ender G .a(inder stayed at hotel CDatri-F in 9i-as 2a+ar5 'ehradun
and at hotel ,sho-a5 Da%una 2a+ar and at /otel :reen 3nternational at
&aharanpur and )here co1accused &he-har %ade entries in hotel
re+isters in fictitious na%es. >PE>B!, Dee)ak, PE>161 San+a% (a)oor and
PE>167 Sat)al Singh3
>Bi? #n 30.07.01 he alo+n)ith accused &he-har &in+h and
.a*ender )as arrested fro% outside ourts at &aharanpur )here they
)ere +oin+ to surrender and at their instance the )hite $aruti ar )as
reco(ered fro% corner +ali ,sha $odern &chool and i(il ourts.
4hereafter their custody )as ta-en by the 'elhi police officers and )ere
brou+ht to 'elhi. /e )as arrayed for 43! but he refused to participate in it
and )as thereafter identified by ,&3 &hri 7rishan fro% his photo after the
sa%e %iBed )ith photo+raphs of so%e other persons )as sho)n to hi%.
>PE>6! "SI Sri (rishan, PE>199 Ins)ector (. P. Singh, PE>171, Ins). ".(.
Singh and PE>177 DSP 'med Singh3
>Bii? /is fin+er print also %atched )ith four out of the siB chance
prints lifted fro% the )hite $aruti ar 2o. 6!114B17559. >PE>1!A SI
"vdesh (*mar?
>Biii? /e also %ade a disclosure state%ent )herein he spilled the
beans of the entire conspiracy. >PE>17, "-P S*resh (a*shik3
A''0se- D(a% Pa);as(
he also participated in a %eetin+ )ith &her &in+h .ana and others at the
residence of &her &in+h .ana )here the entire plan of eBecutin+ the
%urder of &%t. !hoolan 'e(i )as )or-ed out and roles assi+ned to
different persons. >PE B6 Panka+ (alra?
>ii? /e tra(elled alon+)ith accused .a*bir and &he-har &in+h to
'elhi in )hite $aruti car 2o. 6!114B 7559 fro% .oor-ee on 25.07.01 and
)as in constant touch )ith accused &her &in+h .ana throu+h %obile
phone a(ailable )ith accused .a*bir. >PE>9 (ovid 0atra and PE>1,6
5*lshan "rora?
>iii? #n the )ay to 'elhi their car de(eloped so%e sna+ and they
+ot it repaired at C$ohan $otorsF :haAiabad. >PE>11A 4aresh?
>i(? ,fter reachin+ 'elhi he alon+)ith accused &her &in+h .ana
and &he-har &in+h )aited outside the house of &%t. !hoolan 'e(i )hile
sittin+ in +reen colour $aruti ar no. 3$1907 and )hen at about 1"30 !$
&%t. !hoolan 'e(i escorted by t. Balender returned fro% !arlia%ent then
he and &her &in+h .ana +ot do)n fro% the car and )hile &her &in+h
.ana fired to)ards &%t. !hoolan 'e(i he hi%self fired to)ards t.
Balender initially )ith a country %ade pistol and thereafter )ith re(ol(er
%a-e C0ebley E &cottF resultin+ in the death of &%t. !hoolan 'e(i and
+rie(ous in*uries to t. Balender. 4hereafter they fled a)ay fro% the spot in
car no. 3$1907 bein+ dri(en by &he-har )hile lea(in+ the country %ade
pistols at the spot itself. >PE>76 (ali -haran, PE>1,! M*nni Devi, PE>79
-t. 0alender, PE>169 1inod 1ishwanath?
>(? t. Balender ho)e(er fired to)ards their ar 2o. 3$1907 and
the bullet hit the rear +lass of the car. /o)e(er he and his co1accused also
returned fire fro% the car. >PE>79 -t. 0alender, PE>169 1inod
1ishwanath?
>(i? /e and his co1accused persons thereafter left ar 2o. 3$1
907 at !andit !ant $ar+ lea(in+ t)o re(ol(ers >)eapons of offence?5 t)o
%on-ey caps and 12 li(e cartrid+es on the rear seat of the ar. >PE>19
"SI Satish ?oshi, PE>6! "SI Sri (rishan, PE>169 1inod 1ishwanath,, PE>
1B7 "-P 5. L. Mehta3
>(ii? 4hereafter he alon+)ith accused &her &in+h .ana and
&he-har &in+h boarded 4&. 2o. '8 1.; 0235 bein+ dri(en by one
Bahadur &hah and ali+hted fro% it after so%e distance and )ent to so%e
un-no)n place. >PE>11! 0ahad*r Shah, PE>169 1inod 1ishwanath3
>(iii? /e )as subse=uently arrested by the /arid)ar !olice fro%
.oor-ee and his custody )as ta-en by 3nsp. 7.!. &in+h on 04.08.01 and
)as produced in 'elhi on 05.08.01 and )as arrayed for 43! but he refused
to participate therein. >PE>199 Ins)ector (. P. Singh3
>iB? /e )as thereafter identified by t. Balender and 4&. dri(er
Bahadur &hah by )ay of photo 43! )hen his photo )as sho)n to the%
after %iBin+ it )ith photos of 718 other persons. >!0173 t. Balender and
!01114 Bahadur &hah?
>B? /is fin+er prints tallied )ith the 3 chance prints lifted fro% the
re(ol(er C0ebley and &cottF reco(ered fro% the rear seat of car no. 3$1
907. >PE>1!A SI "vdesh (*mar?
>Bi? /e also %ade a disclosure state%ent statin+ the details of the
conspiracy so entered by the%. >PE>17, "-P S*resh (a*shik3
A''0se- 9#4a2 S#%&( Ra%a : Ra40
>i? /e )as the brother of accused &her &in+h .ana and he too
participated in the %eetin+ )ith &her &in+h .ana and others held at their
residence )here the entire plan of eBecutin+ the %urder of &%t. !hoolan
'e(i and her !&# t. Balender )as )or-ed out and roles assi+ned to
different conspirators. >PE B6 Panka+ (alra?
>ii? /e procured %obile phone no. 9837222779 fro% his friend
7o(id Batra G 7annu Batra on 24.07.01 for a day and pro(ided it to
accused &her &in+h .ana for bein+ used durin+ the course of eBecution of
conspiracy to %urder &%t. !hoolan 'e(i. >PE>9 (ovid 0atra?
>iii? /e )as assi+ned the tas- of first ensurin+ i%prison%ent of
&har)an 7u%ar in the na%e of &her &in+h .ana in an already pendin+
case under @Bcise ,ct in the court of 8d. ,<$115 /arid)ar and thereafter
facilitatin+ the release of accused &har)an 7u%ar and .a*ender on bail
after the %urder of &%t. !hoolan 'e(i on the basis of fa-e sureties and
false docu%ents. >PE>19A #amesh -hander "ggarwal, PE>199 La<man
Singh, PE>1!, #a+esh #astogi and PE>1!! Satish -ha*dhar%3
>iii? #n 25.07.2001 soon after the incident upon recei(in+ call fro%
accused &her &in+h .ana5 he alon+)ith his fa%ily and !0 62 !an-a*
7alra5 another friend of accused &her &in+h .ana ran a)ay fro% their
house in .oor-ee and stayed at hotel ')apar in $ussoorie. #n 26.07.01
he also %et accused &her &in+h .ana at /arid)ar rail)ay station. >PE>B1
Davender (*mar Mittal3
>i(? #n 10.08.01 he )as arrested by 'elhi !olice and he %ade a
disclosure state%ent spillin+ out the beans of entire conspiracy. >PE>17,
Ins)ector S*resh (a*shik3
A''0se- Ra4e%-e) : Ra<#%-e)
)as present in the %eetin+ held at the house of accused &her &in+h .ana
prior to the incident )herein all the %odalities of the conspiracy to be
eBecuted )ere discussed and the roles assi+ned to (arious conspirators.
>PE>B6 Panka+ (alra3
>ii? 3n order to %islead the police in their in(esti+ation .a*ender
&in+h +ot hi%self arrested on 04.07.2001 in a case u/s 60 @Bcise ,ct at !&
<a)alapur >/arid)ar? and despite bail orders ha(in+ been passed by the
court did not offer sureties and thereby chose to re%ain inside *ail till
26.07.2001 i.e. till after the %urder of &%t. !hoolan 'e(i. >PE>9! SI Inder
Singh, PE>9, -t. "shwani (*mar, PE>A7 5anga #am Pra+a)ati, PE>199
La<man Singh and PE>1!! Satish -ha*dhar%3
>iii? ,ccused .a*bir and &urender stood sureties for accused
.a*ender on 26.07.2001 3.e a day after the %urder of &%t. !hoolan 'e(i in
fictitious na%e and on the basis of false docu%ents. >PE>19! Ms. Dee)a
1erma, PE>199 La<man Singh, PE>1!! Satish -ha*dhar% and PE>177
-het #am3
>i(? 4he date 26.07.2001 )as chosen as a date for tenderin+
surety bonds on the +round that )hile accused &her &in+h .ana )ill clai%
before the %edia at 'oon !ress lub on 27.07.2001 that he alon+)ith
accused .a*ender G .a(inder had carried out the %urder of &%t. !hoolan
'e(i and the attac- on t. Balinder5 the !&# of &%t. !hoolan 'e(i and
)hen later on the char+e sheet )ill be filed in the court then the clai% of
the police )ould be falsified by sho)in+ that .a*ender )as in *ail on the
actual date of co%%ission of offence. >PE>B6 Panka+ (alra3
>(? ,fter his release fro% *ail he %o(ed alon+)ith &her &in+h
.ana5 &he-har and .a*bir to different places and stayed at /otel Datri- in
9i-as 2a+ar5 'ehradun and thereafter at hotel ,sho-a5 Da%una 2a+ar and
at /otel :reen 3nternational5 &aharanpur and )here accused &he-har
%ade entries in hotel re+isters in fictitious na%es. >PE>B! Dee)ak, PE>
161 San+a% (a)oor and PE>167 Sat)al Singh3

>(i? /e )as finally arrested on 30.07.2001 at &aharanpur alon+)ith
&he-har and .a*bir )hen they all )ere +oin+ to surrender before the
courts at &aharanpur and the )hite $aruti ar )as reco(ered at their
instance fro% corner +ali ,sha $odern &chool and i(il ourts. >PE>199
Ins)ector (. P. Singh, PE>171 Ins). ".(. Singh and PE>177 DSP 'med
Singh3.
>(i? /e %ade a disclosure state%ent after his arrest )herein he stated
about the details of the conspiracy so hatched. >PE>17, Ins)ector S*resh
(a*shik3
A''0se- S0)e%-e) S#%&( Ne&#
>i? /e )as an ac=uaintance of accused &her &in+h .ana and
)as )or-in+ at the li=uour (end of accused &her &in+h .ana )hich )as
+ot allotted in the na%e of !an-a* 7alra at 4e*upur .oor-ee. >PE>!1 ".(.
Sharma, PE>B6 Panka+ (alra, PE>99 San+a% (*mar and PE>19, /m Pal3
>ii? /e participated in a %eetin+ )ith co1accused &her &in+h
.ana and others held at the residence of &her &in+h .ana )here the
entire plan of eBecutin+ the %urder of &%t. !hoolan 'e(i and her !&# t.
Balender )as )or-ed out and roles assi+ned to different conspirators.
>PE>B6 Panka+ (alra?
>iii? #n 26.07.01 he stood surety for .a*ender i%personatin+
hi%self as 9irender :iri and by furnishin+ false docu%ents of &cooter 2o.
6! 10, 9630. > PE>19! Ms. Dee)a 1erma, PE>199 La<man, PE>1!!
Satish -ha*dhar% and PE>177 -het #am3
>i(? #n 08.08.01 he )as arrested at !& &ha%pur /arid)ar and he
%ade a disclosure state%ent )herein he stated about the conspiracy so
entered into by the%. >PE>1,9 SI Parkash -hand and PE>17, Ins)ector
S*resh (a*shik3
A''0se- Pa)<ee% ?#!!a$.
>i? /e )as an ,d(ocate practicin+ at .oor-ee ourts and )as an
old ac=uaintance of accused &her &in+h .ana. /e )as also present in the
%eetin+ held at the house of accused &her &in+h .ana )herein details of
the conspiracy so hatched )ere discussed. >PE>B6 Panka+ (alra?
>ii? /e +a(e le+al ad(ise to accused &her &in+h .ana as to ho)
the conspiracy ou+ht to be eBecuted and ho) false plea of alibi can be
created by sho)in+ hi%self inside *ail on the alle+ed date of incident and
thereby escapin+ fro% the lon+ hands of la). >PE>17, Ins)ector S*resh
(a*shik3
>iii? /e also ad(ised accused &her &in+h .ana to put for)ard the
na%e of one .a*ender as the second assailant and )hile -eepin+
.a*ender actually in *ail in so%e other case so that later on5 the case of the
prosecution %ay fall flat. >PE>17, Ins)ector S*resh (a*shik3
>i(? /e also pro(ided one re(ol(er C$,'@ 32 328@2'F to accused
&her &in+h .ana -no)in+ fully )ell that the sa%e )ill be used in the
co%%ission of %urder of &%t. !hoolan 'e(i. >PE B6 Panka+ (alra?
>(? /e )as arrested on 02.08.01 and %ade a disclosure
state%ent )herein he stated about the details of the conspiracy so
hatched. >PE>17, Ins)ector S*resh (a*shik?
>(i? #n 16.08.2001 one diary )as alle+edly reco(ered fro% the
house of &her &in+h .ana )here &her &in+h .ana had )ritten his phone
nu%ber and that of co1accused ,%it .athi. >PE>191 SI Satish Sharma and
PE>176 Ins)ector #a+ender 0hatia3
A''0se- A+#! Ra!(#
>i? ,ccused ,%it .athi )as runnin+ a +un house in the na%e of
C&ubhash :un /ouseF at .oor-ee and )as an old ac=uaintance of
accused &her &in+h .ana. >PE>7, "aG "hmed3
>ii? /e %ade a(ailable one re(ol(er labelled C0@B8@D E &#44F
to accused &her &in+h .ana -no)in+ fully )ell that it )as to be used in the
%urder of &%t. !hoolan 'e(i. >PE>17, Ins)ector S*resh (a*shik3
>iii? /e also +ot the +roo(es of the re(ol(er te%pered throu+h his
e%ployee ,fa= ,h%ed so that it %ay not tally )ith the bullets so fired fro%
it. >PE>7, "aG "hmed?
>i(? ,fter the incident upon recei(in+ phone call fro% &her &in+h
.ana he )ent a)ay after closin+ do)n his shop. >PE>1,6 5*lshan "rora,
PE>1B9 #. (. &iwari3
>(? /e )as also arrested by the 'elhi !olice on 02.08.01 and he
%ade a disclosure state%ent )herein he stated about the details of the
conspiracy so entered into by the%. >PE>17, Ins)ector S*resh (a*shik3
>(i? #n 16.08.2001 one diary )as alle+edly reco(ered fro% the
house of &her &in+h .ana )here &her &in+h .ana had )ritten his phone
nu%ber and that of co1accused ,%it .athi. >PE>191 SI Satish Sharma and
PE>176 Ins)ector #a+ender 0hatia3
A''0se- S(a)1a% @0+a)
>i? /e )as )or-in+ at the li=uour (end of accused &her &in+h
.ana at 4e*upur .oor-ee )hich )as allotted in the na%e of !an-a* 7alra.
>PE>!1 ".(. Sharma, PE>B6 Panka+ (alra, PE>99 San+a% (*mar and
PE>19, /m)al Singh3
>ii? /e also participated in the %eetin+ )ith co1accused &her
&in+h .ana and other accused persons held at the residence of &her
&in+h .ana )here the entire plan of eBecutin+ the %urder of &%t. !hoolan
'e(i )as )or-ed out and roles assi+ned to different conspirators. >PE>B6
Panka+ (alra?
>iii? #n 18.07.2001 he )ent to /arid)ar *ail i%personatin+ hi%self
as accused &her &in+h .ana after &urender &in+h .ana5 father of
accused &her &in+h .ana )ithdre) his surety bond. /e si+ned ourt
record and *ail record and put his thu%b i%pression o(er there as accused
&her &in+h .ana. /e thereafter ca%e out on bail on the basis of fa-e
surety furnished by accused &urender &in+h 2e+i and .a*bir &in+h. >PE>
A9 SI .*shiaar Singh, PE>A7 5anga #am, PE>19! Ms. Dee)a 1erma,
PE>19A "dvocate #amesh -hander "garwal, PE>199 La<man Singh,
PE>1!! "dvocate Satish -ha*dhar%, PE>177 -het #am3
>i(? ,fter the incident he absconded and )as declared proclai%ed
offender and ca%e to be apprehended only in <uly5 2004. /e thereafter
%ade a disclosure state%ent statin+ about the details of the conspiracy so
entered by hi% )ith other co1accused persons. >PE>16B E8-t. "nita, PE>
196 Ins)ector 0raham+eet Singh and PE>17, Ins)ector S*resh (a*shik3
>(? H#s !(0+A #+B)ess#o% 1e)e oA!a#%e- a%- !(e sa+e !a$$#e-
1#!( !(a! o% !(e Ha)#-1a) Co0)! )e'o)- o) !(a! o% !(e Ha)#-1a) Ja#$
)e'o)-.
A''0se- @es(a< C(a0(a%
>i? /e )as a (isitor to the house of &%t. !hoolan 'e(i and had
co%e on 25.07.2001 only. #n the day of incident )hen firin+ too- place
and the assailants dropped t)o country %ade pistols >)eapons of offence?
at the spot so in the co%%otion )hich too- place soon thereafter he pic-ed
up the said country %ade pistols )ith a (ie) to earn %oney by sellin+ the%
at so%e later point of ti%e and -ept the% in a +ara+e in the house of &%t.
!hoolan 'e(i. >!016 &urender &har%a5 PE>167 #am -handra (ash%a),
PE>1!1 #an+eet (herwar, PE>1B, 'med Singh?
>ii? !016 &urender &har%a5 a chance )itness sa) hi% re%o(in+
the t)o country %ade pistols fro% the spot. 8ater on he told about it to 3#
,! &uresh 7aushi- >PE>B S*render Sharma and PE>17, Ins). S*resh
(a*shik3
>iii? #n 26.07.2001 !01141 .an*eet 7her)ar sa) the t)o country
%ade pistols in the +ara+e of house no. 445 ,sho-a .oad and later on
upon co%in+ to -no) that accused 7esha( hauhan -ept the% o(er there5
he infor%ed .a% handra 7ashyap about it and )ho in turn infor%ed
6%ed &in+h. 6%ed &in+h thereafter on 30.07.01 infor%ed 3nsp. &uresh
7aushi- in )ritin+ about the said t)o desi -attas lyin+ in the +ara+e of the
house and thereafter the t)o desi -attas )ere reco(ered fro% the +ara+e
of the house of &%t. !hoolan 'e(i 3.e 445 ,sho-a .oad. >PE>167 #am
-handra (ash%a), PE>1!1 #an+eet (herwar, PE>1B, 'med Singh and
PE>17, Ins)ector S*resh (a*shik3
/e thus caused disappearance of the e(idence of the cri%e
by re%o(in+ and concealin+ the t)o )eapons of offence fro% the spot.
38. ,s earlier %entioned for the purposes of ready reference 3 a%
hereby %entionin+ the na%es of all the 171 prosecution )itnesses beside
the 5 defence )itnesses and 5 ourt )itnesses in a tabular for% )ith a
(ery brief reference of the role played by the% durin+ the course of
in(esti+ation.
PROSECUTION WITNESSES
S.No NA?E OF THE WITNESS RE?AR@S
!011 2ir%al handra
&arba*na
#)ner of ,%antran :uest /ouse
2 !012 9. !urshotta% .ao #&'5 &ecurity5 !arlia%ent &treet
3 !013 7o(id Batra ;riend of accused &her &in+h .ana and o)ner of %obile
phone no. 9837222779
4 !014 ,shu &har%a /e sold %obile phone !anasonic :'92 to accused &her
&in+h .ana after purchasin+ fro% :ray $ar-et >:affar
$ar-et?
5 !015 3nder*eet &er(ice ,d(isor at $aruti &er(ice $aster5 #-hla )here
car of &%t. !hoolan 'e(i )as bein+ repaired
6 !016 &urender &har%a hance )itness at the ti%e of incident
7 !017 3nspector /a)a &in+h 3nspector5 !olice ontrol .oo% )here phone calls
pertainin+ to incident )ere recei(ed
8 !018 / 7uldeep /e recorded different infor%ation at !olice ontrol .oo%
9 !019 3nspector !hool &in+h 3nchar+e5 !olice ontrol .oo%
10 !0110 / Bha+)ati .ecorded infor%ation recei(ed in 4raffic ontrol .oo% on
the day of incident
11 !0111 / <oy &.: .ecorded infor%ation in !olice ontrol .oo%5 2e) 'elhi
'istrict
12 !0112 / 'hara%bir .ecorded infor%ation in 4raffic ontrol .oo% on the day
of incident
13 !0113 ,&3 &atish <oshi !olice official fro% !& $andir $ar+ )ho first of all sa)
abandoned car no. 3$ 907 at !andit !ant $ar+
alon+)ith !0124 ,&3 &ri 7rishan
14 !0114 t &usana .ecorded infor%ation at !olice ontrol .oo% on the day
of incident
15 !0115 / 9irender &in+h .ecorded infor%ation at !olice ontrol .oo% on the day
of incident
16 !0116 t 9i%la .ecorded infor%ation at !olice ontrol .oo% on the day
of incident
17 !0117 6%a -ashyap .e%o(ed &%t. !hoolan 'e(i and t. Balender to .$8
hospital
18 !0118 9i*ay 7u%ar 7ashyap /usband of !0117 6%a 7ashyap. /e and his )ife had
co%e to the house of &%t. !hoolan 'e(i on the %ornin+
of 25.07.2001 in car 2o. 3$ 907 dri(en by accused &her
&in+h .ana
19 !0119 t &atbir .ecorded infor%ation at !olice ontrol roo% on the day
of incident
20 !0120 / $ohanlal /e con(eyed infor%ation to !. about the incident
21 !0121 !radeep &/o
$ahender
!hoto+rapher )ho too- photo+raphs of the (isit of &%t.
!hoolan 'e(i to /arid)ar in ,pril5 2001
22 !0122 <a(ed 7han ;riend of accused &her &in+h .ana and studied )ith hi%
in colle+e
23 !0123 / $ano* 7u%ar .ecorded infor%ation at !olice ontrol .oo% on the day
of incident
24 !0124 ,&3 &ri 7rishan 4raffic !olice #fficial )ho alon+)ith !0113 ,&3 &atish
<oshi first of all reached near car 2o. 3$ 907 at !andit
!ant $ar+
25 !0125 2a(een 7u%ar &enior $ana+er5 entral Ban- of 3ndia5 .oor-ee
26 !0126 &afi= ,h%ed .ecorded infor%ation at !olice ontrol .oo% on the day
of incident
27 !0127 $ahade( Dada( G
.a% $ahade(
.e+istered o)ner of 4&. 2o. ',. 1460 )hich )as
subse=uently +ot replaced fro% 4ransport ,uthority by
4&. 2o. '81.; 0235
28 !0128 .a%esh)ar &har%a /e pro(ided finance to !01114 Bahadur &hah to
purchase 4&. 2o. '81.; 0235 fro% !0127 $ahade(
Dada(
29 !0129 <a+annath /e had financed 4&. 2o. ',. 1460 to !0127 $ahade(
Dada(
30 !0130 .a*a 7u%ar ;riend of accused &her &in+h .ana and studied )ith hi%
at &t. :abriel &chool5 .oor-ee
31 !0131 /e%ant &oni ,ccountant5 .4# #ffice5 :haAiabad5 6!
32 !0132 $adanpal &in+h 6'5 .4# #ffice5 Burari
33 !0133 'r. !radeep &aBena /e prepared death report of &%t. !hoolan 'e(i at .$8
hospital
34 !0134 &3 3nder &in+h /e arrested accused .a*ender on 03.07.2001 in a case
at /arid)ar for the offence u/s 60 @Bcise ,ct
35 !0135 t 2arender &in+h 'uty onstable at .$8 hospital
36 !0136 'r. 9eena $aha*an &he eBa%ined in*ured t. Balender at .$8 hospital
37 !0137 'r. $.! ,rora /e also eBa%ined in*ured t. Balender at .$8 hospital
38 !0138 'r. $adhu 2atra*an .adiolo+ist )ho too- J1.ay of t. Balender
39 !0139 t ,sh)ani 7u%ar /e alon+)ith t. &an*ay 7u%ar apprehended accused
.a*ender on 03.07.2001 at /arid)ar )hile he )as
carryin+ a can of li=uor
40 !0140 t 2arinder &in+h 'uty #fficer at !& <a)alapur5 /arid)ar )ho recorded ;3.
2o. 246/01 on 03.08.2001 u/s 60 @Bcise ,ct
41 !0141 ,. 7. &har%a 'eputy @Bcise o%%issioner5 'ehradun5 6ttranchal
42 !0142 9irender :iri #)ner of t)o )heeler scooter 2o. 6! 10 9577
43 !0143 Bhupinder &in+h
Bisht
6'5 .4# #ffice5 /arid)ar5 6ttranchal
44 !0144 t. &an*ay !an)ar onstable 6ttranchal !olice. 'ropped by prosecution
bein+ )itness of repetiti(e facts already deposed by !01
39 t. ,sh)ani 7u%ar
45 !0145 &urinder 7u%ar ,ccounts #fficer5 Ban-in+5 $4285 <anpath5 2e) 'elhi
46 !0146 &an*ay &har%a &'#5 B&285 .oor-ee
47 !0147 t. ,%it 7u%ar ,nother !&# of &%t. !hoolan 'e(i )ho )as not on duty
at the ti%e of incident.
48 !0148 t. 'e(inder ,nother !&# of &%t. !hoolan 'e(i )ho )as not on duty
at the ti%e of incident.
49 !0149 'r. ,tul $urari /e conducted post%orte% eBa%ination on the body of
&%t. !hoolan 'e(i at 8ady /ardin+ $edical olle+e
50 !0150 ,&3 $al-iat &in+h 'uty #fficer5 !& !arlia%ent &treet )ho recorded ;3. 2o.
253/01 in the present case besides other '' entries
pertainin+ to present case
51 !0151 ,&3 .a*bir &in+h $/$5 !& !arlia%ent &treet
52 !0152 7alicharan ,n eye )itness on )hose co%plaint the present case )as
re+istered
53 !0153 / 9.7 4ya+i !olice official of !& 7ot)ali5 'ehradun
54 !0154 / .a%*it &in+h .ecorded infor%ation at !olice ontrol .oo% on the day
of incident
55 !0155 3nspector /arpal
&in+h
3nspector5 &ecurity 0in+5 'elhi !olice
56 !0156 / 7a%al &in+h 3nchar+e5 !. 9an 9ictor131 )hich reached at the spot
first of all
57 !0157 ,&3 Kile &in+h .ecord ler-5 !olice ontrol .oo%
58 !0158 ,&3 9irender &in+h /ead $orhar5 !& 'allan)ala5 'ehradun
59 !0159 &3 4e*pal 3nchar+e5 @ Bloc-5 &ecurity 0in+5 'elhi !olice
60 !0160 'r. !oona% 9ohra &he pro(ed report of .adiolo+ist 'r. $adhu 2atra*an
>)ho )as not a(ailable? re+ardin+ J1.ay plates of t.
Balender
61 !0161 'e(ender 7u%ar
$ittal
#)ner of /otel ')apar5 $ussoorie
62 !0162 !an-a* 7alra ;riend of accused &her &in+h .ana and star )itness =ua
conspiracy
63 !0163 &3 Balbir &in+h /aryana !olice #fficer posted at Da%una 2a+ar
64 !0164 'eepa- &/o !re%
!ra-ash
.eceptionist5 /otel ,sho-a5 Da%una 2a+ar
65 !0165 &3 <a+dish !rasad !osted at .$8 hospital on the day of incident
66 !0166 t &atpal &in+h !osted in 'istrict <ail5 /arid)ar
67 !0167 Bha)ani &in+h
Dada(
':$5 B&285 2arnol5 /aryana
68 !0168 ,noop 7u%ar
&aBena
.4# #fficer5 3ndore5 $!
69 !0169 &h. $ohan &in+h 0itness =ua seiAure of records of /otel :reen
3nternational5 &ahranpur
70 !0170 ,fa= ,h%ed @%ployee at the shop of accused ,%it .athi
71 !0171 t. .ishipal !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
72 !0172 3nspector 9.7
&har%a
3nspector5 !. >,d%n.? reached !andit !ant $ar+ upon
recei(in+ infor%ation about car no. 3$ 907
73 !0173 / Balender 3n*ured !&# of &%t. !hoolan 'e(i
74 !0174 /arish 4ya+i ,sstt. $ana+er5 :an+a 9ie) /otel5 /arid)ar1.ishi-esh
.oad
75 !0175 ,&3 .a-esh 7u%ar
&pl ell
!osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
76 !0176 9.&. .a)at 8'5 8ady /ardin+ $edical olle+e
77 !0177 t. &atpal 'uty onstable5 .$8 hospital
78 !0178 ,ddl. '! .anbir
&in+h
,!5 !& !arlia%ent &treet at the ti%e of incident
79 !0179 &3 $ahesh 7u%ar 'rafts%an5 ri%e Branch
80 !0180 &3 Bhi% &en !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
81 !0181 / <aipal &in+h /ead $ohrar5 !& :an+ 2ahar5 .oor-ee
82 !0182 ,&3 ,%ar*eet &in+h !osted at ri%e Branch5 'elhi and participated in the
in(esti+ation
83 !0183 &3 /ushiaar &in+h 2aib ourt in the court of 8d. ,<$115 /arid)ar
84 !0184 7a%lesh)ar $ishra &ub 'i(isional @n+ineer5 4elephones5 B&285 /arid)ar
85 !0185 :an+a .a%
!ra*apati
'eputy <ailer5 /arid)ar <ail
86 !0186 &urinder 7apoor 'irector 2e)s5 ,sian 2e)s 3nternational
87 !0187 7ishore ,rora a%era%an5 ,sian 2e)s 3nternational
88 !0188 ,shish :oyal .eporter5 ,sian 2e)s 3nternational
89 !0189 .a*esh &har%a &taff .eporter5 C'oon 9alley $ailF
90 !0190 3nsp. .a%esh hand
ri%e Branch
the in(esti+ation
91 !0191 &3 <aibir &in+h !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
92 !0192 t &a**ad ,li !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
93 !0193 $ansur ,la% /e sold car 2o. 3$ 907 to accused &her &in+h .ana
94 !0194 ,nura+ 4ya+i ;riend of accused &her &in+h .ana )ho sold %obile
phone no. 9837237160 to accused &her &in+h .ana
95 !0195 t 9i-al !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
96 !0196 t. .oop hand !hoto+rapher5 !& !arlia%ent &treet5 2e) 'elhi
97 !0197 <eet &in+h !ri(ate rane 'ri(er attached on 4raffic !olice 'uty
98 !0198 / 9ishal $ani !olice #fficial fro% !& :an+ 2ahar5 .oor-ee
99 !0199 &an*ay 7u%ar @Bcise 3nspector5 .oor-ee5 'istt. /arid)ar
100 !01100 $ana)ar 7han 0itness of sale of car 2o. 3$ 907 by !0193 $ansur
,la% to accused &her &in+h .ana
101 !01101 3sh)ar &in+h ,ddl. '!5 ri%e Branch and participated in in(esti+ation
102 !01102 :ulshan ,rora 2odal #fficer5 @&&,.
103 !01103 / $ahender
7u%ar
3nchar+e5 !. 9an )ho (isited !andit !ant $ar+ )here
car 2o. 3$ 907 )as found
104 !01104 $unni 'e(i &ister of &%t. !hoolan 'e(i )ho re%o(ed her and t.
Balender to hospital
105 !01105 'aan &in+h 2e+i hief ,sstt. ,.4# #ffice5 /arid)ar5 6ttranchal
106 !01106 Bhartendu 7aushal /e prepared car nu%ber plate bearin+ no. 6! 10 B 3007
107 !01107 &ur(ir &in+h &ecurity :uard5 /otel :an+a 9ie)5 /arid)ar1.ishi-esh
.oad
108 !01108 ,&3 #% !ra-ash !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
109 !01109 &3 !ra-ash hand !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
110 !01110 .2. 7u%ar 'eputy &!5 2ational ri%e .ecord Bureau
111 !01111 &h. 9.7. Dada(.
8d. ,'<
8d. ,'<5 'elhi )ho recorded state%ent u/s 164 r.!.. of
!0117 6%a 7ashyap and !0118 9i*ay 7ashyap
112 !01112 ,&3 .oshanalal 'uty #fficer5 !& <a)alapur5 /arid)ar
113 !01113 3nsp. .an &in+h !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
114 !01114 Bahadur &in+h
&hah
'ri(er of 4&. 2o. '8 1 .; 0235
115 !01115 ,&3 .a(inder !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
116 !01116 'eepa- !urohit .eceptionist5 /otel :an+a 9ie)5 /arid)ar .ishi-esh
.oad
117 !01117 &. &. .athi 8d. ,'< )ho conducted 43! of accused 'han !ar-ash
118 !01118 2aresh #)ner of C$ohan $otorsF at :haAiabad
119 !01119 .a*ender !rasad
&har%a
,hl%ad in the court of 8d. ,<$115 /arid)ar
120 !01120 ,nil 7u%ar ,hl%ad in the court of 8d. ,<$115 /arid)ar
121 !01121 &an*ay 7apoor .eceptionist5 ,sho-a /otel5 Da%una 2a+ar
122 !01122 :ur%ail &in+h !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
123 !01123 ,&3 Braha%
!ra-ash
the in(esti+ation
124 !01124 Babu .a% 'ubey $ana+er5 !ro%ila /otel5 /arid)ar
125 !01125 &h. &atpal &in+h $ana+er5 /otel Datri-5 9i-as 2a+ar5 'ehradun
126 !01126 0/t. ,nita 'uty #fficer5 ,nti .obbery &ection in 2004 )hen accused
&har)an 7u%ar )as arrested
127 !01127 .a% handra
7ashyap
/e helped in re%o(in+ &%t. !hoolan 'e(i and t.
Balender to hospital and also deposed =ua accused
7esha( hauhan
128 !01128 t. ,nil !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
129 !01129 9inod 9ish)anath hance )itness at the ti%e of incident
130 !01130 #%pal &in+h #)ner of hard)are shop near li=uor (end of accused
&her &in+h .ana at 4e*upur5 .oor-ee
131 !01131 3nsp. &atish &har%a !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
132 !01132 3nsp. Braha%*eet
&in+h
/e arrested accused &har)an in <uly5 2004 after he )as
declared proclai%ed offender
133 !01133 3nsp. 7.! &in+h !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
134 !01134 ,.! 9er%a ;in+er !rint @Bpert5 ;&8
135 !01135 'eepa 9er%a 'ocu%ents @Ba%iner5 ;&8
136 !01136 :. :anesha !hoto+rapher5 ;in+er !rint Bureau5 $al(iya 2a+ar
137 !01137 !. Ba)a ;in+er !rint @Bpert5 ;&8
138 !01138 .a%esh hander
,++ar)al
,d(ocate !racticin+ at /arid)ar ourts
139 !01139 8aB%an &in+h ler- of !01144 ,d(ocate &atish haudhary at /arid)ar
ourts
140 !01140 .a*esh .asto+i ,d(ocate !racticin+ at /arid)ar ourts
141 !01141 .an*eet 7her)ar 'eposed =ua accused 7esha( hauhan
142 !01142 t. &unil 7u%ar '' 0riter5 !& 'hallan)ala5 /arid)ar
143 !01143 &. 7. hadha ;in+er !rint @Bpert5 ;&85 B3 8ab
144 !01144 &atish haudhary ,d(ocate !racticin+ at /arid)ar ourts
145 !01145 t. 9. 7. :ur*ar onstable posted at 'istrict <ail5 /arid)ar
146 !01146 &/# !ari-shit
7u%ar
&/#5 !& 'hallan)ala )ho arrested accused &her &in+h
.ana
147 !01147 t. 7aushal 7ishore onstable5 'istrict <ail5 /arid)ar
148 !01148 &3 ,(desh 7u%ar ;in+er !rint @Bpert5 ;in+er !rint Bureau5 $al(iya 2a+ar
149 !01149 &h. 7. . 9arsheney Ballistic @Bpert5 ;&85'elhi
150 !01150 Binay 7u%ar $ishra ,sstt. 'irector5 2ational ri%e .ecord Bureau5 'elhi
151 !01151 3nsp ,. 7. &in+h5
B3'5 $eerut
&/#5 !& $andi5 'istt. &ahranpur5 )ho arrested accused
.a*ender5 .a*bir and &he-har alon+)ith !01155 '&!
6%ed &in+h
152 !01152 3nspector .a*ender
Bhatia5 &/#5 $ehrauli
the in(esti+ation
153 !01153 / $aya 'e(i 'uty #fficer5 !& /ari 2a+ar5 'elhi )ho recorded ;3. 2o.
95/04 re+ardin+ abscondance of accused &her &in+h
.ana fro% 4ihar <ail
154 !01154 3nsp. ,sho- 7u%ar !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
155 !01155 '&! 6%ed &in+h &/#5 !& &adar BaAar5 &ahranpur5 6! )ho arrested
accused &he-har5 .a*ender and .a*bir alon+)ith !01151
3nspector ,. 7. &in+h
156 !01156 ,.7. &hri(asta( ,sstt. 'irector >Biolo+y?5 ;&85 'elhi
157 !01157 het .a% ;in+er !rint @Bpert5 ;&85 'elhi
158 !01158 3nsp. 9ishnu hand
:auta%
&/#5 !& $uAaffarpur5 6! )ho had arrested $usta-ee%
in an ,r%s ,ct case
159 !01159 / !. 7. .an*an !hoto+rapher5 ;in+er !rint Bureau5 $al(iya 2a+ar
160 !01160 6%ed &in+h /usband of &%t. !hoolan 'e(i
161 !01161 3nsp. &. 2. 7han /e for%ally arrested accused &har)an 7u%ar in the year
2004
162 !01162 &3 &an*ee( $andal !osted at !& !arlia%ent &treet and participated in initial
in(esti+ation )ith initial 3# !01167 ,! :. 8. $ehta
163 !01163 &3 6pender &in+h !osted at !& !arlia%ent &treet and participated in initial
164 !01164 .a*neesh &har%a $aruti (an dri(er in )hose (ehicle &%t. !hoolan 'e(i and
t. Balender )ere re%o(ed to hospital fro% the spot.
165 !01165 &3 &an*ee( 9er%a !osted at !& !arlia%ent &treet and participated in initial
166 !01166 &h. $.&.
6padhyaya
'!5 ri%e5 'elhi !olice )ho +a(e sanction u/s 39 ,r%s
,ct5 1959
167 !01167 ,! :. 8. $ehta &/# !& !arlia%ent &treet and )as the initial
3n(esti+atin+ #fficer
168 !01168 &3 $ano* 7u%ar !osted at ri%e Branch5 'elhi !olice and participated in
the in(esti+ation
169 !01169 ..7.4i)ari 2odal #fficer5 @&#4@8
170 !01170 3nsp. &uresh
7aushi- >3/#?
$ain 3n(esti+atin+ #fficer of the case fro% ri%e Branch5
'elhi !olice
171 !01171 9i(e- $alhotra ,sstt. &ales $ana+er5 @&#4@8
DEFENCE WITNESSES
S.NO NA?E OF THE WITNESS RE?AR@S
1 '011 !ar(een $ittal ,ccused eBa%ined hi%self u/s 315 r.!..
2 '012 &he-har &in+h ,ccused eBa%ined hi%self u/s 315 r.!..
3 '013 /aAi $ehaboob !roperty 'ealer at .oor-ee
4 '014 8alit &in+h &ub 'i(isional @n+ineer5 B&285 .oor-ee
5 '015 / ,%ar*eet &in+h &pecial $essen+er5 !& !arlia%ent &treet )ho deli(ered
copy of ;3. in the present case to senior officers
COURT WITNESSES
S.No. NA?E OF THE WITNESS

RE?AR@S
1 &h. 'ilip 7r. hatur(edi 'rafts%an 6ttranchal !iyau <al 2a+ar5 /arid)ar
2 &h. :iri .a* &in+h ,hl%ad in the court of &h. '.7.&har%a5 8d.$$5 'elhi
3 &h. 9i*ay 7u%ar ,thuni5 ,#/<udicial
Branch
!3#5 2e) 'elhi 'istrict5 !atiala /ouse ourts5 2e) 'elhi
4 &3 &hya% &under 3nchar+e5 .43 ell5 ri%e Branch5 'elhi !olice
5 &h. &uresh .oy <oint o%%issioner of !olice5 2e) 'elhi .an+e5 'elhi !olice
as on the day of incident i.e. 25.07.2001
39. ,s conspiracy is the pri%ary char+e a+ainst the accused
persons so it )ill be appropriate to first ha(e a brief +lance of the definition5
essential features and proof thereof.
40. 3n the case Ra;es( @0+a) a%- O)s. <. S!a!e, C)$. A No.
16200, -e'#-e- o% 2,.05.200 the /onHble 'elhi /i+h ourt su%%ed up
the la) of conspiracy1definition essential features and proof as under"1
C128. ,s conspiracy is the pri%ary char+e a+ainst the
accused5 )e first ad(ert to the la) of conspiracy 1 its
definition5 essential features and proof.
129. &ection 1201, defines Lcri%inal conspiracy as
under"1
MDe"#%#!#o% o" ')#+#%a$ 'o%sB#)a'2 1 0hen t)o or %ore
person a+ree to do5 or cause to be done5
>1? ,n ille+al act5 or
,n act )hich is not ille+al by ille+al %eans5 such an
a+ree%ent is desi+nated a cri%inal conspiracy"
!ro(ided that no a+ree%ent eBcept an a+ree%ent to
co%%it an offence shall a%ount to a cri%inal conspiracy
unless so%e act besides the a+ree%ent is done by one or
%ore parties to such a+ree%ent in pursuance thereof
@Bplanation" 1 3t is i%%aterial )hether the ille+al act is the
ulti%ate ob*ect of such a+ree%ent5 or is %erely incidental
to that ob*ect.M
130. 3t is clear fro% the abo(e noted definition of Lcri%inal
conspiracy that the three essential ele%ents of offence of
conspiracy are >a? a cri%inal ob*ect5 )hich %ay be either
the ulti%ate ai% of the a+ree%ent5 or %ay constitute the
%eans5 or one of the %eans by )hich that ai% is to be
acco%plishedN >b? a plan or sche%e e%bodyin+ %eans to
acco%plish that ob*ectN >c? an a+ree%ent or understandin+
bet)een t)o or %ore of the accused persons )hereby5
they beco%e definitely co%%itted to cooperate for the
acco%plish%ent of the ob*ect by the %eans e%bodied in
the a+ree%ent5 or by any effectual %eans. 4hus5 the +ist
of offence of cri%inal conspiracy is an a+ree%ent to brea-
the la).
131. &ections 1201, and 1201B )ere brou+ht on the
statute boo- by )ay of ri%inal 8a) ,%end%ent ,ct5
1913. @arlier to the introduction of &ections 120, and
120B5 conspiracy per se )as not an offence under the
3ndian !enal ode eBcept in respect of the offence
%entioned in &ection 121,. 3n the #b*ects and .easons
to the ,%end%ent Bill5 it )as eBplicitly stated that the ne)
pro(isions >1201, E B? )ere Mdesi+ned to assi%ilate the
pro(isions of the 3ndian !enal ode to those of the
@n+lish 8a)....M 4hus5 &ections 120, E 120B %ade
conspiracy a substanti(e offence and rendered the %ere
a+ree%ent to co%%it an offence punishable.
132. !roof of a cri%inal conspiracy by direct e(idence is
not easy to +et and probably for this reason &ection 10 of
the 3ndian @(idence ,ct )as enacted. 3t reads as under"1
E10. T(#%&s sa#- o) -o%e A2 'o%sB#)a!o) #% )e"e)e%'e
!o 'o++o% -es#&%"1 0here there is reasonable +round
to belie(e that t)o or %ore persons ha(e conspired
to+ether to co%%it an offence or an actionable )ron+5
anythin+ said5 done or )ritten by any one of such persons
in reference to their co%%on intention5 after the ti%e )hen
such intention )as first entertained by any one of the%5 is
a rele(ant fact as a+ainst each of the persons belie(ed to
so conspirin+5 as )ell for the purpose of pro(in+ the
eBistence of the conspiracy as for the purpose of sho)in+
that any such person )as a party to it.M
133. 4hus5 the substanti(e section of the 3! i.e. &ection
1201, adu%brated thereon &ection 10 of the 3ndian
@(idence ,ct +i(e us the le+islati(e pro(isions applicable
to conspiracy and its proof.
134. ,fter sur(ey of the case la) on the point5 follo)in+
le+al principles pertainin+ to the la) of conspiracy can be
con(eniently culled out"1
, 0hen t)o or %ore persons a+ree to co%%it a
cri%e of conspiracy5 then re+ardless of %a-in+ or
considerin+ any plans for its co%%ission5 and despite the
fact that no step is ta-en by any such person to carry out
their co%%on purpose5 a cri%e is co%%itted by each and
e(ery one )ho *oins in the a+ree%ent. 4here has thus to
be t)o conspirators and there %ay be %ore than that. 4o
pro(e the char+e of conspiracy it is not necessary that
intended cri%e )as co%%itted or not. 3f co%%itted it %ay
further help prosecution to pro(e the char+e of conspiracy.
>&ee the decision of &upre%e ourt reported as &tate (
2alini >1999? 5 & 253?
B 4he (ery a+ree%ent5 concert or lea+ue is the
in+redient of the offence. 3t is not necessary that all the
conspirators %ust -no) each and e(ery detail of the
conspiracy as lon+ as they are co1participators in the %ain
ob*ect of the conspiracy. 3t is not necessary that all
conspirators should a+ree to the co%%on purpose at the
sa%e ti%e. 4hey %ay *oin )ith other conspirators at any
ti%e before the consu%%ation of the intended ob*ecti(e5
and all are e=ually responsible. 0hat part each
conspirator is to play %ay not be -no)n to e(eryone or the
fact as to )hen a conspirator *oined the conspiracy and
)hen he left. 4here %ay be so %any de(ices and
techni=ues adopted to achie(e the co%%on +oal of the
conspiracy and there %ay be di(ision of perfor%ances in
the chain of actions )ith one ob*ect to achie(e the real
end of )hich e(ery collaborator %ust be a)are and in
)hich each one of the% %ust be interested. 4here %ust
be unity of ob*ect or purpose but there %ay be plurality of
%eans so%eti%es e(en un-no)n to one another5 a%on+st
the conspirators. 3n achie(in+ the +oal se(eral offences
%ay be co%%itted by so%e of the conspirators e(en
un-no)n to the others. 4he only rele(ant factor is that all
%eans adopted and ille+al acts done %ust be and
purported to be in furtherance of the ob*ect of the
conspiracy e(en thou+h there %ay be so%eti%es %isfire
or o(ershootin+ by so%e of the conspirators. @(en if so%e
steps are resorted to by one or t)o of the conspirators
)ithout the -no)led+e of the others it )ill not affect the
culpability of those others )hen they are associated )ith
the ob*ect of the conspiracy. But then there has to be
present %utual interest. !ersons %ay be %e%bers of
sin+le conspiracy e(en thou+h each is i+norant of the
identity of %any others )ho %ay ha(e di(erse role to play.
3t is not a part of the cri%e of conspiracy that all the
conspirators need to a+ree to play the sa%e or an acti(e
role. >&ee the decisions of &upre%e ourt reported as
Iash Pal Mittal v State o P*n+ab ,3. 1977 & 2433 and
State v 4alini >1999? 5 & 253?
3t is the unla)ful a+ree%ent and not its
acco%plish%ent5 )hich is the +ist or essence of the cri%e
of conspiracy. #ffence of cri%inal conspiracy is co%plete
e(en thou+h there is no a+ree%ent as to the %eans by
)hich the purpose is to be acco%plished. 3t is the unla)ful
a+ree%ent5 )hich is the +raha% of the cri%e of
conspiracy.
' 4he unla)ful a+ree%ent )hich a%ounts to a
conspiracy need not be for%al or eBpress5 but %ay be
inherent in and inferred fro% the circu%stances5 especially
declarations5 acts5 and conduct of the conspirators. 4he
a+ree%ent need not be entered into by all the parties to it
at the sa%e ti%e5 but %ay be reached by successi(e
actions e(idencin+ their *oinin+ of the conspiracy. &ince a
conspiracy is +enerally hatched in secrecy5 it )ould =uite
often happen that there is no e(idence of any eBpress
a+ree%ent bet)een the conspirators to do or cause to be
done the ille+al act. ;or an offence under &ection 120B5
the prosecution need not necessarily pro(e that the
perpetrators eBpressly a+reed to do or cause to be done
the ille+al actN the a+ree%ent %ay be pro(ed by necessary
i%plication. 4he offence can be only pro(ed lar+ely fro%
the inference dra)n fro% acts or ille+al o%ission
co%%itted by the conspirators in pursuance of a co%%on
desi+n. 4he prosecution )ill also %ore often rely upon
circu%stantial e(idence. 3t is not necessary to pro(e actual
%eetin+ of conspirators. 2or it is necessary to pro(e the
actual )ords of co%%unication. 4he e(idence as to
trans%ission of thou+hts sharin+ the unla)ful desi+n is
sufficient. &urroundin+ circu%stances and antecedent and
subse=uent conduct of accused persons constitute
rele(ant %aterial to pro(e char+e of conspiracy. >&ee the
decisions of &upre%e ourt reported as &hi(narayan
8aB%inarayan <oshi ( &tate of $aharashtra ,3. 1980 &
4395 $oha%%ad 6s%an $oha%%ad /ussain $aniyar (
&tate of $aharashtra ,3. 1981 & 1062 and 7ehar &in+h
( &tate ,3. 1988 & 1883?
@ , conspiracy is a continuin+ offence and continues
to subsist and co%%itted )here(er one of the conspirators
does an act or series of acts. &o lon+ as its perfor%ance
continues5 it is a continuin+ offence till it is eBecuted or
rescinded or frustrated by choice or necessity. , cri%e is
co%plete as soon as the a+ree%ent is %ade5 but it is not a
thin+ of the %o%ent. 3t does not end )ith the %a-in+ of
the a+ree%ent. 3t )ill continue so lon+ as there are t)o or
%ore parties to it intendin+ to carry into effect the desi+n.
3ts continuance is a threat to the society a+ainst )hich it
)as ai%ed at and )ould be dealt )ith as soon as that
*urisdiction can properly clai% the po)er to do so. 4he
conspiracy desi+ned or a+reed abroad )ill ha(e the sa%e
effect as in 3ndia5 )hen part of the acts5 pursuant to the
a+ree%ent are a+reed to be finaliAed or done5 atte%pted
or e(en frustrated and (ice (ersa.
; &ection 10 of the @(idence ,ct introduces the
doctrine of a+ency and if the conditions laid do)n therein
are satisfied5 the acts done by one are ad%issible a+ainst
the co1 conspirators. 3n short5 the section can be analysed
as follo)s" >1? 4here shall be a pri%a facie e(idence
affordin+ a reasonable +round for a ourt to belie(e that
t)o or %ore persons are %e%bers of a conspiracyN >2? if
the said condition is fulfilled5 anythin+ said5 done or )ritten
by any one of the% in reference to their co%%on intention
)ill be e(idence a+ainst the otherN >3? anythin+ said5 done
or )ritten by hi% should ha(e been said5 done or )ritten
by hi% after the intention )as for%ed by any one of the%N
>4? it )ould also be rele(ant for the said purpose a+ainst
another )ho entered the conspiracy )hether it )as said5
done or )ritten before he entered the conspiracy or after
he left itN and >5? it can only be used a+ainst a co1
conspirator and not in his fa(our. >&ee the decision of
&upre%e ourt reported as &ardar &ardul &in+h ( &tate of
$aharashtra ,3. 1957 & 747.?F
41. Beside the direct e(idence of the eye )itnesses of the incident
the prosecution case pri%arily rests upon circu%stantial e(idence. 3t )ill
be thus appropriate to refer to the discussion by /onHble /i+h ourt on
circu%stantial e(idence also %ade in the said case itself i.e. Ra;es(
@0+a) a%- O)s. /s0B)a3
C135. ,s discussed in the fore+oin+ paras5 %ore often than
not5 the prosecution )ould adduce circu%stantial e(idence
to pro(e the char+e of conspiracy. 4he =uestion )hich
arises is that )hat should be the nature of circu%stantial
e(idence in a case of conspiracy to brin+ ho%e the +uilt of
the accused persons.
136. 4he )ell -no)n rule +o(ernin+ circu%stantial
e(idence that "1 >a? the circu%stances fro% )hich the
inference of +uilt of the accused is dra)n ha(e to be
pro(ed beyond reasonable doubt and ha(e to be sho)n to
be closely connected )ith the principal fact sou+ht to be
inferred fro% those circu%stancesN >b? the circu%stances
are of a deter%inati(e tendency unerrin+ly pointin+
to)ards the +uilt of the accusedN and >c? the
circu%stances5 ta-en collecti(ely5 are incapable of
eBplanation on any reasonable hypothesis sa(e that of the
+uilt sou+ht to be pro(ed a+ainst hi%5 is fully applicable in
cases of proof of conspiracy. 4he courts ha(e added t)o
riders to aforesaid principleN na%ely5 >i? there should be no
%issin+ lin-s but it is not that e(ery one of the rl.,.195
515 1215 1395 144 E 65/2007 !a+e 81 of 183 lin-s %ust
appear on the surface of the e(idence5 since so%e of
these lin-s can only be inferred fro% the pro(ed facts and
>ii? it cannot be said that the prosecution %ust %eet any
and e(ery hypothesis put for)ard by the accused ho)e(er
far1 fetched and fanciful it %ay %i+ht be. >&ee the decision
of &upre%e ourt reported as :a+an 7ano*ia ( &tate of
!un*ab >2006? 13 & 516?
137. 4he =uestion )hich arises for consideration is5 )hat
does the eBpression Lpro(ed beyond reasonable doubt
occurrin+ in the afore1noted cardinal rule of circu%stantial
e(idence si+nify. 'oes it %ean that the prosecution is
re=uired to pro(e its case )ith hundred percent certaintyO
138. 4he ans)er to the aforesaid =uestion can be found in
the follo)in+ obser(ations of &upre%e ourt in the
decision reported as 8al &in+h ( &tate of :u*arat ,3. 2001
& 746"1 M4he learned &r. ounsel $r. &ushil 7u%ar
sub%itted that prosecution has not pro(ed beyond
reasonable doubt all the lin-s relied upon by it. 3n our (ie)5
to say that prosecution has to pro(e the case )ith a
hundred percent certainty is %yth. &ince last %any years
the nation is facin+ +reat stress and strain because of
%is+uided %ilitants and co1operation to the %ilitancy5
)hich has affected the social security5 peace and stability.
3t is co%%on -no)led+e that such terrorist acti(ities are
carried out )ith ut%ost secrecy. $any facts pertainin+ to
such acti(ities re%ain in personal -no)led+e of the person
concerned. /ence5 in case of conspiracy and particularly
such acti(ities5 better e(idence than acts and state%ents
includin+ that of co1conspirators in pursuance of the
conspiracy is hardly a(ailable............. ;or assessin+
e(idence in such cases5 this ourt in -ollector o
-*stoms, Madras J /thers v. D. 0hoormall "I# 1974 &
859 dealin+ )ith s%u++lin+ acti(ities and the penalty
proceedin+s under &ection 167 of the &ea usto%s ,ct5
1878 obser(ed that %any facts relatin+ to illicit business
re%ain in the special or peculiar -no)led+e of the person
concerned in it and held thus"
M30. .. that the prosecution or the 'epart%ent is
not re=uired to pro(e its case )ith %athe%atical
precision to a de%onstrable de+reeN for5 in all
hu%an affairs absolute certainty is a %yth5 and
as !rof. Brett felicitously puts it P Mall eBactness
is a fa-eM. @l 'orado of absolute proof bein+
unattainable5 the la) accepts for it5 probability
as a )or-in+ substitute in this )or-1a1day )orld.
4he la) does not re=uire the prosecution to
pro(e the i%possible. ,ll that it re=uires is the
establish%ent of such a de+ree of probability
that a prudent %an %ay5 on its basis5 belie(e in
the eBistence of the fact in issue. 4hus5 le+al
proof is not necessarily perfect proofN often it is
nothin+ %ore than a prudent %anHs esti%ate as
to the probabilities of the case......M >@%phasis
supplied?
139. 4he @(idence ,ct does not insist upon absolute proof
for the si%ple reason that perfect proof in this i%perfect
)orld is seldo% to be found. 4hat is )hy under &ection 3
of the @(idence ,ct5 a fact is said to be Hpro(edH )hen5
after considerin+ the %atters before it5 the ourt either
belie(es it to eBist5 or considers its eBistence so probable
that a prudent %an ou+ht5 under the circu%stances of the
particular case5 to act upon the supposition that it eBists.
4his definition of Hpro(edH does not dra) any distinction
bet)een circu%stantial and other e(idence. 4he use of
eBpression Hdeter%inati(e tendencyH in the afore1noted rule
also seconds the (ie) that the prosecution is not re=uired
to adduce such e(idence )hich absolutely pro(es the +uilt
of an accused person. 4hus5 circu%stantial e(idence in
order to furnish a basis for con(iction re=uires a hi+h
de+ree of probability5 that is5 so sufficiently hi+h that a
prudent %an considerin+ all the facts5 feels *ustified in
holdin+ that the accused has co%%itted the cri%e. >&ee
the decisions of &upre%e ourt reported as &tate of
$aharashtra ( $ohd. Da-ub ,3. 1980 & 1111 and
:o-ara*u 9en-atanarasa .a*u ( &tate of ,! >1993? &upp
>4? & 191?
140. 4he approach to be adopted by the courts )hile
appreciatin+ circu%stantial e(idence )as succinctly stated
by &upre%e in the decision reported as $.:.,+ar)al (
&tate of $aharashtra ,3. 1963 & 200 in follo)in+
ter%s"1
M3t is a )ell established rule in cri%inal
*urisprudence that circu%stantial e(idence can
be reasonably %ade the basis of an accused
personHs con(iction if it is of such a character
that it is )holly inconsistent )ith the innocence
of the accused and is consistent only )ith his
+uilt. 3f the circu%stances pro(ed in the case
are consistent either )ith the innocence of the
accused or )ith his +uilt5 then the accused is
entitled to the benefit of doubt. 4here is no
doubt or dispute about this position. But in
applyin+ this principle5 it is necessary to
distin+uish bet)een facts )hich %ay be called
pri%ary or basic on the one hand and inference
of facts to be dra)n fro% the% on the other. 3n
re+ard to the proof of basic or pri%ary facts5 the
ourt has to *ud+e the e(idence in the ordinary
)ay5 and in the appreciation of e(idence in
respect of the proof of these basic or pri%ary
facts there is no scope for the application of the
doctrine of benefit of doubt. 4he court
considers the e(idence and decides )hether
that e(idence pro(es a particular fact or not.
0hen it is held that a certain fact is pro(ed5 the
=uestion arises )hether that fact leads to the
inference of +uilt of the accused person or not5
and in dealin+ )ith this aspect of the proble%
the doctrine of benefit of doubt )ould apply and
an inference of +uilt can be dra)n only if the
pro(ed fact is )holly inconsistent )ith the
innocence of the accused and is consistent
only )ith his +uilt.M
42. /o)e(er before discussin+ the e(idence led by the
prosecution =ua each of the aforesaid circu%stances5 3 dee% it appropriate
to %ention certain facts )hich not only stand pro(ed fro% the e(idence led
by the prosecution but e(en stand not disputed on the part of the accused
persons. 4his eBercise )ill certainly narro) do)n the contro(ersy )hich is
re=uired to be resol(ed by this ourt in the present case.
43. 4he factu% of %urder of &%t. !hoolan 'e(i on account of
bullet in*uries sustained by her or the bullet in*uries sustained by t.
Balender in the i%pu+ned incident has not been disputed by the accused
persons. 4he fact that &%t. !hoolan 'e(i and t. Balender )ere re%o(ed
to .$8 hospital )here &%t. !hoolan 'e(i )as declared brou+ht dead and
t. Balender )as stated to be critical is also not in dispute. 2ature of
in*uries found on their bodies and as are %entioned in the $8Hs or the
post1%orte% eBa%ination report of &%t. !hoolan 'e(i are also not in
dispute. 4hese facts e(en other)ise stand a%ply pro(ed fro% the
deposition of !0133 'r. !ardeep &aBena5 !0136 'r. 9eena $aha*an5 !01
37 'r. $. !. ,rora5 !0138 'r. $adhu 2atra*an5 !0149 'r. ,tul $urari5 !01
52 7ali haran5 !0160 'r. !oona% 9ohra5 !0173 t. Balender5 !01104
$unni 'e(i and !01164 .a*neesh &har%a.
44. 4here thus does not arise any need to discuss in detail the
nature of in*uries sustained by &%t. !hoolan 'e(i or t. Balender eBcept
that they all )ere bullet in*uries. 3n fact the sole plea of defence of all the
accused persons and especially that of accused &her &in+h .ana5
&he-har5 .a*bir and 'han !ar-ash durin+ the course of entire trial has
been that they )ere not in(ol(ed in any %anner )ith the incident in
=uestion. 4hus the entire focus of cross1eBa%ination of (arious prosecution
)itnesses on behalf of accused persons has been to deny their
in(ol(e%ent in the incident and not that no such incident of firin+ resultin+
in the death of &%t. !hoolan 'e(i or in*uries to t. Balender e(er too-
place.
45. .eliance in this re+ard %ay also be placed on the case @e(a)
S#%&( a%- O)s. <. S!a!e /De$(# A-+#%#s!)a!#o%3, 155 /33 SCC 70 >$rs.
3ndira :andhi $urder case? )herein also /onHble &upre%e ourt %ade
si%ilar obser(ations on the +round that as the bullet in*uries sustained by
$rs. 3ndira :andhi )ere not in dispute so the post%orte% eBa%ination or
its report thereof looses its si+nificance.
46. 4hus )hen there is no serious dispute as to the nature of
in*uries sustained either by &%t. !hoolan 'e(i or by t. Balender so in the
o(er all facts and circu%stances of the case and -eepin+ in (ie) the plea
of defence ta-en on behalf of the accused persons beside the e(idence as
it stands on the file5 the =uestion of post1%orte% eBa%ination of &%t.
!hoolan 'e(i or the %edical eBa%ination of t. Balender at .$8 hospital
includin+ the nature of in*uries as %entioned therein looses all its
si+nificance. 4here is no dispute that &%t. !hoolan 'e(i died as a result of
the +un shot in*uries or that t. Balender also sustained +un shot in*uries.
3n fact it is also not in dispute that the bullets reco(ered fro% the body of
&%t. !hoolan 'e(i and t. Balender )ere not fired fro% the t)o re(ol(ers
alle+edly reco(ered fro% ar 2o. 3$1907 and the country %ade pistols
subse=uently reco(ered on 30.07.01 alle+edly fro% the +ara+e of the
house of &%t. !hoolan 'e(i. 4he testi%ony of the doctors )ho reco(ered
the bullets fro% the bodies of the t)o in*ured and that of Ballistic eBpert
!01149 7.. 9arsheney pro(es this fact beyond shado)s of all reasonable
doubts. 2othin+ could co%e out in their cross1eBa%ination by accused
persons )hich %ay lead %e to either disbelie(e their deposition or could
sho) that these )itnesses )ere deposin+ falsely in any %anner.
47. 4here thus does not arise any need to discuss in detail either
the post1%orte% eBa%ination report of &%t. !hoolan 'e(i or the $8 of
t. Balender.
48. 'urin+ the course of ar+u%ents 8d. ounsel for the accused
persons ha(e ho)e(er tried to hi+hli+ht (arious other facts in order to
pri%arily sho) that the in(esti+ation as has been carried out in the present
%atter has not been fair and abo(e board. Beside the other ar+u%ents put
for)ard by 8d. ounsel for the accused persons )hich 3 shall be
considerin+ )hile discussin+ the e(idence =ua (arious circu%stances
a+ainst each of the accused persons at a later sta+e5 one i%portant fact
)hich )as stron+ly ar+ued ri+ht throu+h the entire trial )hich lasted for
%ore than 13 years )as that i%%ediately on the day of incident senior
officers of 'elhi police na%ely &h. &uresh .ai5 the then <oint
o%%issioner of police 2e) 'elhi .an+e and &h. 7.7. !aul5 <oint
o%%issioner of !olice5 ri%e Branch 'elhi !olice had infor%ed about
the incident to the office of 8t. :o(ernor of 'elhi and &h. !.7. <alali5 <oint
&ecretary5 $inistry of /o%e and to &h. :. . $alhotra5 &ecretary5 8o-
&abha by )ay of )ritten co%%unications beside also issuin+ a press
release. 3t )as pointed out that in the said co%%unication %ade by &h.
&uresh .oy includin+ the press release issued by hi% on 25.07.2001 itself
after the re+istration of the present case he had stated that the assailants
)ere %as-ed. 3t )as also sub%itted that as !arlia%ent )as in session on
that day so i%%ediately after co%in+ to -no) about the incident &h. 8.7.
,d(ani5 the then /o%e $inister5 :o(ern%ent of 3ndia %ade a state%ent in
the 8o- &abha statin+ that as infor%ed to hi% by the o%%issioner of
!olice5 &%t. !hoolan 'e(i has been fired at by three %as-ed assailants. 3t
)as also stated that subse=uently on 31.07.01 an obituary reference )as
%ade by &h. 8. 7. ,d(ani5 the then /o%e $inister in the 8o- &abha and
therein also it )as stated that &%t. !hoolan 'e(i )as -illed by t)o %as-ed
assailants.
49. 3t )as thus (ehe%ently ar+ued by 8d. ounsel for the accused
persons and especially by accused &her &in+h .ana hi%self that )hen the
assailants )ere %as-ed then no one5 %uch less t. Balender )ho +ot
in*ured in the incident could ha(e seen the face of the assailants. 3t )as
also sub%itted that it )as for this reason that in the ;3. !01525 7ali
haran the co%plainant did not state that one of the assailant )as &her
&in+h .ana G !an-a* and he only +a(e the physical description or the
details of the clothes )orn by the assailants e(en thou+h &her &in+h .ana
)as -no)n to hi% fro% prior to. 3t )as also sub%itted that in the ar
bearin+ 2o. 3$1907 t)o %on-ey caps )ere alle+edly reco(ered and
)hich fact also support the conclusion that the assailants )ere %as-ed.
50. 3t )as also pointed out that in the )ritten co%%unication %ade
by &h. &uresh .oy or in the state%ent %ade by &h. 8. 7. ,d(ani in the 8o-
&abha on the basis of infor%ation recei(ed by hi% fro% police there )as
no %ention of t)o %on-ey caps found lyin+ inside the car e(en thou+h
there )as a %ention of all other articles reco(ered fro% the car. 3t )as thus
sub%itted that the entire in(esti+ation has been %anipulated subse=uently
in order to falsely i%plicate accused &her &in+h .ana and other accused
persons. 3t )as further sub%itted that the police subse=uently chan+ed its
entire stand by statin+ that the assailants )ere not %as-ed and there is no
eBplanation on the file about this chan+e of stand. 3t )as also sub%itted
that )hen ad%ittedly accused &her &in+h .ana )as )ell -no)n to 7ali
haran5 the co%plainant fro% prior to the incident so there )as nothin+ to
pre(ent hi% fro% statin+ that one of the assailant )as accused &her &in+h
.ana and police )as not re=uired to dra) any conclusion fro% any
subse=uent in(esti+ation to establish that accused &her &in+h .ana )as
one of the assailant. 3t )as also sub%itted that infact the alle+ed eye
)itness of the incident na%ely co%plainant !0152 7ali haran5 !01104
$unni 'e(i and !01129 9inod 9ish)anath ha(e also supported this
conclusion durin+ the course of their deposition in the court. 4he accused
persons )ere thus stated to ha(e been falsely i%plicated at the instance of
6%a 7ashyap and her husband 9i*ay 7ashyap )ho in collusion )ith 6%ed
&in+h husband of &%t. !hoolan 'e(i co%%itted %urder of &%t. !hoolan
'e(i. 3t )as sub%itted that &%t. !hoolan 'e(i )as ha(in+ differences )ith
6%ed &in+h and )as e(en fearin+ a threat to her life. 4he deposition of
!01104 $unni 'e(i5 the sister of &%t. !hoolan 'e(i )as referred to in
support of this clai%.
51. /o)e(er5 before ad(ertin+ further to discuss the e(idence led
by the prosecution =ua (arious circu%stances as ha(e been delineated
abo(e 3 first intend to discuss certain co%%on circu%stances )hich runs
li-e a thread in the entire chain of circu%stantial e(idence a+ainst different
accused persons beside the deposition of !0162 !an-a* 7alra )ho has
been pro*ected by the prosecution as a %aterial )itness to connect all the
accused persons )ith the offence in =uestion.
PW-72 Pa%;a4 @a$)a
52. 4he prosecution has tried to pro(e the participation of all the
accused persons in the conspiracy by sho)in+ that a %eetin+ )as held
prior to the incident in =uestion at the house of &her &in+h .ana )here the
entire plan as to ho) the conspiracy )as to be )or-ed out )as discussed
and the roles to be played by (arious accused persons )ere assi+ned. !0
62 !an-a* 7alra )as the star )itness of the prosecution to pro(e this fact.
4hus it )ill be appropriate if the deposition of !062 !an-a* 7alra is first
discussed and analysed in this re+ard.
53. !0162 !an-a* 7alra )ho ad%ittedly )as an old friend of
accused &her &in+h .ana has been pro*ected by the prosecution as a
person )ho )as initially sou+ht to be in(ol(ed in the conspiracy by
accused &her &in+h .ana but later on he bac-ed out. 3t )as clai%ed that
!0 62 !an-a* 7alra )as thus a)are of the entire conspiracy and he in fact
had seen all the other accused persons ha(in+ a %eetin+ at the house of
accused &her &in+h .ana )herein the plans )ere discussed as to ho) the
conspiracy )as to be eBecuted and false plea of alibi shall be created.
54. /o)e(er in his deposition this )itness co%pletely turned
around and did not support the case of prosecution at all on any of the
aforesaid %aterial aspects. /e )as accordin+ly declared hostile by ld.
&pecial !! for the &tate and )as cross1eBa%ined at len+th but nothin+
%aterial could be elicited in his cross1eBa%ination )hich %ay support the
case of the prosecution in this re+ard or %ay lead %e to disbelie(e his
deposition.
55. ,t this sta+e 3 %ay also point out that in fact the role of police
in citin+ !0 !an-a* 7alra as a prosecution )itness is also not free fro%
doubts. 4he prosecution clai%s that he )as a)are of the conspiracy so
hatched by accused &her &in+h .ana and )as e(en present in the
%eetin+ )hen the plan to eBecute the said conspiracy )as discussed but
he later bac-ed out. 3t is also the case of the prosecution that he )as told
by accused &her &in+h .ana that after co%%ittin+ %urder of &%t. !hoolan
'e(i he )ill +i(e a call to hi% and thereafter he should run a)ay alon+)ith
youn+er brother of accused &her &in+h .ana na%ely5 accused 9i*ay &in+h
.ana G .a*u and other fa%ily %e%bers. 3t is also the case of prosecution
that !an-a* 7alra accordin+ly e(en fled a)ay fro% .oor-ee after the
incident and stayed at hotel C')aparF in $assooree )ith the fa%ily
%e%bers of accused &her &in+h .ana and his youn+er brother 9i*ay
&in+h .ana G .a*u.
56. 3n these circu%stances it is beyond co%prehension as to ho)
!an-a* 7alra ca%e to be cited as a )itness of prosecution rather bein+
arrested as a co1conspirator or a person )ho )as ha(in+ -no)led+e of the
conspiracy bein+ so hatched but still did not infor% about it to the police. 3t
is also not clear that if !an-a* 7alra had bac-ed out fro% the conspiracy
then )hat )as the need for hi% to run a)ay fro% the house after the
%urder of &%t. !hoolan 'e(i and that too alon+)ith fa%ily %e%bers of
accused &her &in+h .ana. 4he prosecution has sou+ht to pro(e these
facts only by (irtue of the disclosure state%ent of accused &her &in+h
.ana and the state%ent u/s 161 r.!.. of !062 !an-a* 7alra and )hich
state%ent he did not support in his deposition in the court. 4he disclosure
state%ent of &her &in+h .ana is also not ad%issible in la) bein+ hit by
section 25 @(idence ,ct.
57. 3t is also not the case of prosecution that !an-a* 7alra first
turned appro(er and that only thereafter he )as cited as a prosecution
)itness.
58. 4he aforesaid uneBplained and stran+e conduct of the
in(esti+atin+ a+ency is one of %any circu%stances )hich ha(e co%e up
durin+ the trial of the present case that raises +ra(e shado)s of doubts as
re+ard the (ery nature of in(esti+ation carried out in the present %atter. 3n
fact 8d. &pecial !! for the &tate also chose not to shed any li+ht on this
aspect durin+ the course of ar+u%ents.
59. Be that as it %ay5 the fact re%ains that !0 62 !an-a* 7alra
has co%pletely turned hostile on all the %aterial aspects )hich )ere
sou+ht to be pro(ed by the prosecution. 3n fact the su++estion put for)ard
to hi% by 8d. &pecial !! for the &tate that he )as an old friend of accused
&her &in+h .ana and had e(en +ot alloted a country %ade li=uor (end in
his na%e and e(en continued )ith the sa%e despite there bein+ opposition
fro% his parents5 hi+hli+hts another aspect. 4his su++estion sho)s as to
)hether the in(esti+atin+ a+ency or the prosecution could not ha(e
foreseen such a conduct on the part of this )itness that he )ill certainly not
support the case of the prosecution5 if at all it is presu%ed that he has
deposed falsely in the court. 3 %ay ho)e(er state that dra)in+ of any
presu%ption that the )itness has deposed falsely shall be purely on the
basis of con*unctures and sur%ises )hich has no basis in la). 4here is
thus nothin+ on record to e(en re%otely su++est that this )itness has
deposed falsely or that he )as )on o(er by the accused persons.
4hus one of the %a*or circu%stance that a prior %eetin+
bet)een the conspirators too- place at the house of &her &in+h .ana
does not stand pro(ed.
60. 3n fact !01625 !an-a* 7alra thou+h ad%itted that he had +ot
allotted a li=our (end on the as-in+ of &her &in+h .ana but stated that he
hi%self did not use to (isit it or that it )as bein+ run by &her &in+h .ana
only. /e also clai%ed i+norance as to )ho all )ere )or-in+ at the said
li=uour (end %uch less accused &har)an5 &urender &in+h or !ardeep. /e
also denied ha(in+ e(er %et accused !ar(een $ittal %uch less alon+)ith
accused &her &in+h .ana. /e thus also denied that in his presence
accused !ar(een $ittal e(er deli(ered any re(ol(er to accused &her &in+h
.ana.
Use o" ?oA#$e P(o%es A2 !(e a''0se- Be)so%s.
61. ,nother i%portant circu%stance )hich for%s an i%portant lin-
in the prosecution case is the use of %obile phones by accused &her
&in+h .ana and other co1accused persons.
62. ,s re+ards the e(idence led by the prosecution =ua the %obile
phones used by accused &her &in+h .ana or accused .a*bir by (irtue of
the call detail record or the cell 3' chart 3 %ay state at the outset itself that
the sa%e can not be read into e(idence for the follo)in+ reasons.
63. 4hou+h as re+ard phone 2o. 98372227795 !013 7o(id Batra
has stated that he +a(e it to accused 9i*ay &in+h G .a*u on 24.07.01 for
use by his brother &her &in+h .ana and as re+ard phone 2o.
98372371605 !0194 ,nura+ 4ya+i has also stated that he sold it to &her
&in+h .ana =ua %obile phone 2o. 9811374806 or 9811374810 no
e(idence has been led to sho) that the said t)o %obile phone nu%bers
belon+ed to accused &her &in+h .ana5 &he-har &in+h5 'han !ar-ash or
.a*bir &in+h5 for the prosecution is relyin+ on the use of these phone
nu%bers by accused persons in 'elhi on the day of incident.
64. !01102 :ulshan ,rora5 2odal #fficer5 @ssar $obile &er(ices
stated that durin+ those days the identity proof of the subscribers of the
cash cards )ere not sou+ht by their co%pany )hich )as earlier -no)n as
C&terlin+ ellular 8tdF. /o)e(er irrespecti(e of the said fact so%e
conclusion re+ardin+ the in(ol(e%ent of (arious accused persons in the
conspiracy in =uestion could ha(e been dra)n fro% the call detail record
and cell 3' chart of the %obile phones as the sa%e could ha(e sho)n the
presence of accused .a*bir in or around the area )here accused &her
&in+h .ana )as present on the day of incident and later on at different
places )here accused &her &in+h .ana had been %o(in+ all alon+ )ith
other accused persons if the said call detail record or cell 3' chart been
pro(ed as per the re=uire%ent of @(idence ,ct.
65. 3t is no) )ell settled that electronic e(idence to be pro(ed on
record %ust co%ply )ith certain conditions as are pro(ided in section 65B
of the 3ndian @(idence ,ct5 1872. Before ad(ertin+ further it )ill be
)orth)hile to analyAe as to )hat is the position of la) after the
a%end%ents %ade in the 3ndian @(idence ,ct5 1872 by (irtue of
,%end%ent ,ct no. 21 of 2000.
66. 3n the case Ra;es( @0+a) 8 O)s. 9s. S!a!e5 rl. ,. 19/2007
decided on 27.08.2009 by /onHble 'elhi /i+h ourt5 the la) )ith re+ard to
ad%issibility of electronic e(idence )as discussed at len+th. 3t )ill be thus
pertinent to reiterate the said discussion o(er here.
C193. &ection 3 of the @(idence ,ct5 1872 defines
e(idence as under"
@(idenceM 1 @(idence %eans and includes"1
1?1111111111111
2? all docu%ents includin+ electronic records produced for
the inspection of the courtNM
194. By )ay of a%end%ent to the @(idence ,ct5 18725
incorporated by ,ct. 2o. 21 of 2000 follo)in+ )as
inserted" M4he eBpression Mertifyin+ ,uthorityM5 Mdi+ital
si+natureM5 M'i+ital &i+nature ertificateM5 Melectronic
for%M5 Melectronic recordsM5 Minfor%ationM5 Msecure
electronic recordsM5 Msecure di+ital si+natureM and
MsubscriberM shall ha(e the %eanin+s respecti(ely
assi+ned to the% in the 3nfor%ation 4echnolo+y ,ct5
2000.M
195. &ection 2 >c? of the 3nfor%ation 4echnolo+y ,ct5 2000
reads"
Melectronic recordM %eans data5 record or data +enerated5
i%a+e or sound stored5 recei(ed or sent in an electronic
for% or %icro fil% or co%puter +enerated %icro record.M
196. &ection 65, and 65B of the @(idence ,ct5 18725
inserted by ,ct 2o. 21 of 2000 read as under"1 M65,.
&pecial pro(isions as to e(idence relatin+ to electronic
record.
4he contents of electronic records %ay be pro(ed in
accordance )ith the pro(isions of &ection 65B.M M65B.
,d%issibility of electronic records.
>1? not)ithstandin+ anythin+ contained in this ,ct5 any
infor%ation contained in an electronic record )hich is
printed on a paper5 stored5 recorded or copied in optical or
%a+netic %edia produced by a co%puter >hereinafter
referred to as the co%puter output? shall be dee%ed to be
also a docu%ent5 if the conditions %entioned in this
section are satisfied in relation to the infor%ation and
co%puter in =uestion and shall be ad%issible in any
proceedin+s5 )ithout further proof or production of the
ori+inal5 as e(idence or any contents of the ori+inal or of
any fact stated therein of )hich direct e(idence )ould be
ad%issible.
>2? the conditions referred to in &ub1section >1? in respect
of a co%puter output shall be follo)in+5 na%ely "1
>a? the co%puter output containin+ the infor%ation )as
produced by the co%puter durin+ the period o(er )hich
the co%puter )as used re+ularly to store or process
infor%ation for the purposes of any acti(ities re+ularly
carried on o(er that period by the person ha(in+ la)ful
control o(er the use of the co%puterN >b? durin+ the said
period5 infor%ation of the -ind contained in the electronic
record or of the -ind fro% )hich the infor%ation so
contained is deri(ed )as re+ularly fed into the co%puter in
the ordinary course of said acti(itiesN
QcR throu+hout the %aterial part of the said period5 the
co%puter )as operatin+ properly or5 if not5 then in respect
of any period in )hich it )as not operatin+ properly or )as
out of operation durin+ that part of the period5 )as not
such as to affect the electronic record or the accuracy of
its contentsN and
>d? the infor%ation contained in the electronic reproduces
or is deri(ed fro% such infor%ation fed into the co%puter
in the ordinary course of the said acti(ities.
>3? 0here o(er any period5 the function of storin+ or
processin+ infor%ation for the purposes of any acti(ities
re+ular carried out on o(er that period as %entioned in
lause >a? of &ub1section >2? )as re+ularly perfor%ed by
co%puters5 )hether 1
>a? by a co%bination of co%puters operatin+ o(er that
periodN or
>b? by different co%puters operatin+ in succession o(er
that periodN or
>c? by different co%binations of co%puters operatin+ in
succession o(er that periodN or
>d? in any other %anner in(ol(in+ the successi(e operation
o(er that period5 in )hate(er order5 or one or %ore
co%puters and one or %ore co%binations of co%puters5
all the co%puters used for that purpose durin+ that period
shall be treated for the purposes of this section as
constitutin+ a sin+le co%puterN and references in this
section to a co%puter shall be construed accordin+ly.
>4? 3n any proceedin+s )here it is desired to +i(e a
state%ent in e(idence by (irtue of this section5 a certificate
doin+ any of the follo)in+ thin+s5 that is to say5 1
>a? identifyin+ the electronic record containin+ the
state%ent and describin+ the %anner )hich it )as
producedN
>b? +i(in+ such particulars of any de(ice in(ol(ed in the
production of that electronic record as %ay be appropriate
for the purpose of sho)in+ that the electronic record )as
produced by a co%puterN >c? dealin+ )ith any of the
%atters to )hich the conditions %entioned in &ub1section
>2? relate5 and purportin+ to be si+ned by a person
occupyin+ a reasonable official position in relation to the
operation of the rele(ant de(ice or the %ana+e%ent of the
rele(ant acti(ities >)hiche(er is appropriate? shall be
e(idence of any %atter stated in the certificateN and for the
purposes of this sub1section it shall be sufficient for a
%atter to be state d to the best of the -no)led+e and
belief of the person statin+ it. >5? ;or the purposes of this
section5 1
>a? infor%ation shall be ta-en to be supplied to a co%puter
if it is supplied thereto in any appropriate for% or )hether
it is so supplied directly or >)ith or )ithout hu%an
inter(ention? by %eans of any
appropriate e=uip%entN
>b? )hether in the course of acti(ities carried on by any
official infor%ation is supplied )ith a (ie) to its bein+
stored or processed for the purposes of those acti(ities by
a co%puter operated other)ise than in the course of those
acti(ities5 that infor%ation5 if duly supplied to that
co%puter shall be ta-en to be supplied to it in the course
of those acti(itiesN >c? to a co%puter output shall be ta-en
to ha(e been produced by a co%puter )hether it )as
produced by it directly or >)ith or )ithout hu%an
inter(ention? by %eans of any appropriate e=uip%ent.
197. 4hus5 co%puter +enerated electronic records is
e(idence5 ad%issible at a trial if pro(ed in the %anner
specified by &ection 65B of the @(idence ,ct.
198. &ub1section >1? of &ection 65B %a-es ad%issible as
a docu%ent5 paper print1out of electronic records stored in
optical or %a+netic %edia produced by a co%puter5
sub*ect to the fulfill%ent of the conditions specified in &ub1
section >2? of &ection 65B. ;ollo)in+ are the conditions
specified by &ub1 section >2?"
a? 4he co%puter fro% )hich the record is +enerated )as
re+ularly used to store or process infor%ation in respect of
acti(ity re+ularly carried on by a person ha(in+ la)ful
control o(er the period5 and relates to the period o(er
)hich the co%puter )as re+ularly usedN
b? 3nfor%ation )as fed in the co%puter in the ordinary
course of the acti(ities of the person ha(in+ la)ful control
o(er the co%puterN
c? 4he co%puter )as operatin+ properly5 and if not5 )as
not such as to affect the electronic record or its accuracyN
d? 3nfor%ation reproduced is such as is fed into co%puter
in the ordinary course of acti(ity.
199. 6nder &ub1section >3? of &ection 65B5 &ub1section
>1? and >2? )ould apply )here sin+le or co%bination of
co%puters5 is used for stora+e or processin+ in the re+ular
course of acti(ities and the co%puters used shall be
construed as a sin+le co%puter.
200. 6nder &ub1section >5?5 infor%ation shall be ta-en to
be supplied to a co%puter by %eans of an appropriate
e=uip%ent5 in the course of nor%al acti(ities intendin+ to
store or process it in the course of acti(ities and a
co%puter output is produced by it )hether directly or by
%eans of appropriate e=uip%ent.
201. 4he nor%al rule of leadin+ docu%entary e(idence is
the production and proof of the ori+inal docu%ent itself.
&econdary e(idence of the contents of a docu%ent can
also be led under &ection 65 of the @(idence ,ct. 6nder
&ub1clause MdM of &ection 655 secondary e(idence of the
contents of a docu%ent can be led )hen the ori+inal is of
such a nature as not to be easily %o(able. o%puterised
operatin+ syste%s and support syste%s in industry cannot
be %o(ed to the court. 4he infor%ation is stored in these
co%puters on %a+netic tapes >hard disc?. @lectronic
record produced there fro% has to be ta-en in the for% of
a print out. &ub1section >1? of &ection 65B %a-es
ad%issible )ithout further proof5 in e(idence5 print out of a
electronic record contained on a %a+netic %edia sub*ect
to the satisfaction of the conditions %entioned in the
section. 4he conditions are %entioned in &ub1section >2?.
4hus co%pliance )ith &ub1section >1? and >2? of &ection
65B is enou+h to %a-e ad%issible and pro(e electronic
records.
202. &ub1section >4? of &ection 65B pro(ides for an
alternati(e %ethod to pro(e electronic record. &ub1 section
>4? allo)s the proof of the conditions set out in &ub1
section >2? by %eans of a certificate issued by the person
described in &ub1 section 4 and certifyin+ contents in the
%anner set out in the sub1section. 4he sub1section %a-es
ad%issible an electronic record )hen certified that the
contents of a co%puter printout are +enerated by a
co%puter satisfyin+ the conditions of &ub1 section 15 the
certificate bein+ si+ned by the person described therein.
203. ,dditionally5 irrespecti(e of co%pliance of the
re=uire%ents of &ection 65B5 there is no bar to adducin+
secondary e(idence under the other pro(isions of the
@(idence ,ct5 na%ely &ections 63 E 65.
204. 4herefore5 the call records @B.!0134/, and @B.!01
62/ can be pro(ed by adducin+ secondary e(idence in
ter%s of &ection 63 of @(idence ,ct or by co%plyin+
conditions specified in sub1section >2? or sub1section >4? of
section 65B of @(idence ,ct.F
67. 4hus5 the %oot =uestion is )hether the call records ha(e been
pro(ed in ter%s of &ection 63 or &ection 65B>2? or &ection 65B>4?.
68. ;ro% the nature of record produced it is thus clear that in the
absence of certificate u/s 65B of 3ndian @(idence ,ct5 1872 the call details
record or the cell 3' chart sou+ht to be pro(ed on record by the
prosecution cannot be read or ta-en into consideration a+ainst the
accused persons. 4he said e(idence has to be thus discarded a)ay.
69. @(en in the absence of any such certificate u/s 65B @(idence
,ct5 the secondary e(idence could ha(e been led by the prosecution.
/o)e(er no such steps to lead secondary e(idence in accordance )ith
section 63 or section 65 @(idence ,ct )ere e(en ta-en by the prosecution.
70. 4he other (ery i%portant aspect of the prosecution case as to
)hether the t)o assailants or their third acco%plice )ho )as dri(in+ the
$aruti ar 2o. 3$1907 )ere )earin+ %as- at the ti%e of incident or not
shall be discussed at a later sta+e separately before discussin+ the
e(idence =ua the (arious incri%inatin+ circu%stances sou+ht to be pro(ed
a+ainst accused &her &in+h .ana5 &he-har &in+h and 'han !ar-ash.
71. I !(0s %o1 #%!e%- !o -#s'0ss !(e e<#-e%'e $e- >0a !(e
<a)#o0s #%')#+#%a!#%& '#)'0+s!a%'es +e%!#o%e- ea)$#e) a&a#%s!
-#""e)e%! a''0se- Be)so%s so as !o a%a$2se 1(e!(e) !(e sa#-
'#)'0+s!a%'es s!a%- B)o<e- o) %o!.
72. 3 shall be first discussin+ the case of prosecution =ua those
accused persons )ho ha(e been assi+ned the roles at the periphery of the
conspiracy and thereafter the case of accused persons )ho alle+edly )ere
actually in(ol(ed in the shootin+ incident dated 25.07.2001 or that of
accused &har)an 7u%ar )hose case is closely lin-ed )ith the case
a+ainst accused &her &in+h .ana . 4he case =ua accused 7esha(
hauhan )ho is bein+ tried only for the offence u/s 201 r.!.. shall also
be discussed separately.
73. ,fter this %icroscopic analysis of each of the circu%stance as
to )hether the sa%e stand pro(ed or not 3 shall be considerin+ )hether the
circu%stances5 if any pro(ed for% a chain of e(idence )hich lead to only
one conclusion i.e. in(ol(e%ent of the (arious accused persons in the
conspiracy or not and is not eBplainable on any other hypothesis
consistent )ith the innocence of accused.
Case a&a#%s! a''0se- Ra4e%-e)
P)#o) A'>0a#%!a%'e 1#!( S(e) S#%&( Ra%a a%- a))es! #% !(e 'ase
0%-e) EC'#se A'! a! Ha)#-1a)
74. ,t the outset5 3 %ay state that the prosecution has %iserably
failed to establish that accused .a*ender +ot hi%self deliberately arrested
in an @Bcise ,ct case at !& <a)alapur >/arid)ar? in pursuance to the
cri%inal conspiracy so hatched by accused &her &in+h .ana and others.
6ndoubtedly the factu% of the said case ha(in+ been re+istered a+ainst
accused .a*ender at !& <a)alapur >/arid)ar? is not in dispute as it stands
)ell pro(ed fro% the deposition of !0 120 ,nil 7u%ar5 the ,hl%ed of the
concerned court at /arid)ar. @(en accused .a*ender hi%self has also not
disputed the sa%e. 4hus the factu% of arrest of accused .a*ender is also
not in dispute and in fact it is the undisputed case of prosecution that fro%
04.07.2001 till 26.07.2001 accused .a*ender )as in /arid)ar *ail in the
said case. 3t is also not in dispute that no sureties )ere offered on behalf of
accused .a*ender till 26.07.2001 e(en thou+h bail orders )ere passed at
the initial sta+e itself )hen he )as produced in the ourt for the first ti%e.
75. 4he =uestion )hich ho)e(er arises is as to ho) the
prosecution see%s to connect this fact of arrest of accused .a*ender )ith
either accused &her &in+h rana or it bein+ an act in pursuance to cri%inal
conspiracy so hatched by accused &her &in+h .ana and others.
76. ,s already discussed =ua the deposition of !0 62 !an-a*
7alra the prosecution has failed to pro(e that any %eetin+ e(er too- place
in the house of &her &in+h .ana prior to the incident )herein the plan to
carry out the eBecution of the conspiracy )as discussed or roles )ere
assi+ned to different persons.
77. 4hus the prosecution has %iserably failed in pro(in+ that
accused .a*ender e(er participated in any such %eetin+ held )ith accused
&her &in+h .ana )herein details of the conspiracy so hatched )ere
)or-ed out. ,ccordin+ly e(en if there )as so%e prior ac=uaintance of
accused .a*ender )ith accused &her &in+h .ana then the said
ac=uaintance in itself cannot lead to a conclusion that accused .a*ender
)as part of any such conspiracy so hatched by accused &her &in+h .ana
and others or that he )as e(en a)are of any such conspiracy or its
ob*ecti(e thereof. 4he necessary corollary )hich thus e%er+es is that
e(en the arrest of accused .a*ender in the case under @Bcise ,ct at !&
<a)alapur cannot be ter%ed to be in pursuance to the conspiracy in
=uestion or for that %atter in pursuance to the ob*ecti(e sou+ht to be
achie(ed by any such conspiracy.
T(e B)ose'0!#o% (as !(0s "a#$e- !o B)o<e !(#s '#)'0+s!a%'e
F0)%#s(#%& o" "a;e s0)e!#es A2 (#+ o% 27.0,.01.
78. ,s re+ards the factu% of not furnishin+ surety bond despite
bail orders ha(in+ been passed by the court 3 %ay once a+ain state that
such circu%stances are often obser(ed in the courts )hen despite bail
orders ha(in+ been passed accused is unable to produce surety. 4hus on
account of this fact no ad(erse inference can be dra)n a+ainst accused
.a*ender that he did not offer sureties only in pursuance to the cri%inal
conspiracy bein+ hatched by accused &her &in+h .ana and others.
&i%ilarly the tenderin+ of surety bond on 26.07.2001 by accused .a*bir
and &urender &in+h 2e+i cannot connect accused .a*ender )ith the
conspiracy in =uestion as there is no e(idence on record to dra) such a
conclusion. ,d%ittedly accused .a*ender )as in *ail and till the ti%e he +ot
released he is not supposed to -no) as to )ho all stood as surety for hi%
or )hat docu%ents )ere produced by the% in the ourt. #nce a+ain no
ad(erse inference can be dra)n on account of this fact that accused
.a*ender or his t)o sureties did so on account of any conspiracy bein+
hatched by accused &her &in+h .ana and others. >&he act that acc*sed
S*render and #a+bir stood s*reties in ake names and on the basis o alse
doc*ments however shall be se)aratel% dealt b% me at a later stage when
I shall be disc*ssing the case o )rosec*tion G*a acc*sed S*render Singh
4egi and #a+bir Singh?.
79. 4hus the act of furnishin+ surety bonds by accused &urender
and .a*bir in fa-e na%es and on the basis of false docu%ents cannot be
attributed to accused .a*ender. $oreo(er it is also beyond co%prehension
as to )hen accused .a*ender +ot hi%self arrested in his o)n na%e and
)as in *ail then )hat )as the need for hi% to ha(e fa-e sureties to +et
hi%self released if at all he )as capable of ha(in+ proper sound sureties5
for other)ise it is the case of prosecution itself that accused .a*ender
deliberately did not offer sureties initially )hen he )as arrested and bail
orders )ere passed
80. 4hus once a+ain no conclusion can be dra)n fro% the
aforesaid circu%stance that accused .a*ender )as a part of the present
conspiracy in =uestion.
81. $oreo(er if the t)o sureties furnished on the basis of false
docu%ents or by i%personation )as done in pursuant to any a+ree%ent
)ith .a*ender than at the %ost .a*ender can be liable for ha(in+
co%%itted the offence of per*ury or falsification of docu%ents before a
ourt of 8a) at /arid)ar durin+ the course of *udicial proceedin+s either in
furtherance of any co%%on intention shared by hi% )ith his t)o sureties or
in furtherance of co%%on ob*ect of any conspiracy to +et .a*ender
released fro% *ail than for such an act not only co%plaint u/s 195 r.!
fro% the ourt concerned )as %andatory but )hen the said act of either
.a*ender or that of his t)o sureties >3 shall be discussin+ the case =ua
surety &urender and .a*bir separately? )as not co%%itted in furtherance
of the co%%on ob*ect of the alle+ed conspiracy hatched by &her &in+h
.ana and others then the ourts at 'elhi lac- *urisdiction to try either the
offence of per*ury or of falsification of docu%ents.
T(e B)ose'0!#o% (as !(0s "a#$e- !o B)o<e !(#s '#)'0+s!a%'e a$so.
S!a!e+e%! +a-e #% P)ess Co%"e)e%'e A2 a''0se- S(e) S#%&( Ra%a o%
2,.0,.2001.
82. ,s re+ards the press conference held by accused &her &in+h
.ana on 27.07.2001 at 'oon !ress lub )herein he alle+edly clai%ed that
he alon+)ith accused .a*ender G .a(inder had co%%itted the %urder of
&%t. !hoolan 'e(i or the %urderous attac- on t. Balender5 the said
state%ent can not be read a+ainst accused .a*ender bein+ inad%issible in
la). #ne %ay ar+ue that under section 10 @(idence ,ct5 anythin+ said or
done by a conspirator in reference to co%%on desi+n of the conspiracy is
ad%issible and that the conspiracy in =uestion co%prised of t)o parts (iA.
o%%ittin+ %urder of &%t. !hoolan 'e(i and her !&# t. Balender and
thereafter %isleadin+ the police by presentin+ false facts and at the sa%e
ti%e ha(in+ a false plea of alibi %ade to defeat the clai% of the police.
83. /o)e(er section 10 @(idence act cannot ha(e any application
=ua accused .a*ender e(en if it is presu%ed for the sa-e of ar+u%ents
that accused &her &in+h .ana did address such a press conference and
clai%ed that he and .a*ender had eBecuted the %urder of &%t. !hoolan
'e(i and the attac- on t. Balender. &ection 10 @(idence ,ct )ould ha(e
co%e into picture only if the prosecution had been successful in
establishin+ that both accused .a*ender and &her &in+h .ana )ere co1
conspirators. ,s already discussed the prosecution has %iserably failed in
establishin+ this fact that accused .a*ender )as in any %anner part of the
conspiracy alle+edly bein+ so hatched by accused &her &in+h .ana and
others. 3n these circu%stances the said state%ent stated to ha(e been
%ade by accused &her &in+h .ana at the press conference cannot be
read a+ainst accused .a*ender and has to be discarded a)ay.
T(e B)ose'0!#o% (as !(0s "a#$e- !o B)o<e !(#s '#)'0+s!a%'e a$so
AAs'o%-#%& a1a2 o" a''0se- Ra4e%-e)
84. 3t has been stated that soon after his release fro% *ail accused
.a*ender started %o(in+ alon+)ith accused &her &in+h .ana5 &he-har
and .a*bir to different places in Da%una 2a+ar5 'ehradun and
&aharanpur. &ubse=uently5 he )as arrested at &aharanpur alon+)ith
accused .a*bir and &he-har and one )hite $aruti car bearin+ no. 6! 14 B
3007 used at the ti%e of co%%ission of %urder of &%t. !hoolan 'e(i )as
reco(ered at their instance.
85. Before 3 ad(ert on to the discussion of e(idence led by the
prosecution on this aspect it )ill be )orth)hile to =uote certain
obser(ations recently %ade by /onHble 'elhi /i+h ourt in the case
F9#s(a$ Da-a< 9s. S!a!e o" U.P.G, C)$. A, NO. ,4162005 -e'#-e- o%
02.04.2014 )herein the entire la) relatin+ to ,bscondance of an accused
after the cri%e as discussed in (arious cases by /onHble &upre%e ourt
and other /i+h ourts has been su%%ed up and discussed.
C1399. 8earned senior counsel has further sub%itted that
to hold abscondance a+ainst the accused5 it is insufficient
for the prosecution to %erely say that the accused persons
)ere abscondin+ fro% a place at a particular ti%e. 4he
police %ust pro(e an atte%pt by the accused to hide. 4he
police had to -eep a )atch o(er the residence and then
lea(e a notice. !ositi(e e(idence of the address of the
accused persons )as re=uired to be stated in the )itness
boB and that the prosecution has failed to lead any
e(idence on any of the aforenoticed circu%stances. 3t is
sub%itted that no =uestion )as put to the accused
persons )hile recordin+ their state%ents under &ection
313 of the r.!.. )ith re+ard to their address.
1400. 3n support of these sub%issions5 reliance has been
placed on the pronounce%ent reported at AI !"#$
%ombay &'( )in*ar %andhu )eshmu*h and Anr. v.
+tate. 3n para 21 of this pronounce%ent5 the Bo%bay /i+h
ourt has held as follo)s "1
C21. 4hat lea(es for consideration only the additional bit of
e(idence as a+ainst accused 2o. 2 (iA.5 that he )as
abscondin+ for a )ee- after the incident. 4he date of the
offence )as the 19th of 'ece%ber 19685 and accused 2o.
2 )as arrested5 only on the 28th of 'ece%ber 1968. 3n
order that the ourt can le+iti%ately dra) the inference
that the subse=uent conduct of an accused )as that of a
+uilty person and not of an innocent %an5 there %ust be
proper %aterial placed before the ourt. ,ll that the
prosecution has placed before the ourt in the present
case are t)o bald state%ents5 both %ade by !olice &ub1
inspector Bor-ar" >1? that the second accused )as not in
the (illa+e on the day soon after the incident )hen the
police )ent thereN and >2? that !olice &ub13nspector Bor-ar
had sent about four constables in search of accused 2o. 2
to so%e (illa+es. 4hat e(idence is5 in %y opinion5 )holly
insufficient to lead to the inference that the second
accused )as abscondin+ since the date of the incident. 3n
order to lead to that inference5 the in(esti+atin+ police
officer %ust lay before the ourt further e(idence to sho)
that continuous )atch )as -ept at the house of the
accused concerned5 and that a )atch )as also -ept by
hi% at the places )hich the accused fre=uented5 includin+
his place of )or-5 but the accused did not turn up at all at
any of those places durin+ a certain period of ti%e. BBB
BBB.
>6nderlinin+ by us?
1401. #n the effect of abscondance as to )hether it )ould
lead to inference of the +uilt of a person reliance has been
palced on AI ,$!! +- ,$$ Param.eet +ingh alias
Pamma v. +tate of /ttara*hand0 )herein the &upre%e
ourt reiterated the applicable principles in the follo)in+
ter%s"
C32. 3n $atru G :irish handra (. 4he &tate of 6.!.5 ,3.
1971 & 10505 this ourt repelled the sub%issions %ade
by the &tate that as after co%%ission of the offence the
accused had been abscondin+5 therefore5 the inference
can be dra)n that he )as a +uilty person5 obser(in+ as
under >para 15?"
M4he appellantHs conduct in abscondin+ )as also relied
upon. 2o)5 %ere abscondin+ by itself does not
necessarily lead to a fir% conclusion of +uilty %ind. @(en
an innocent %an %ay feel panic-y and try to e(ade arrest
)hen )ron+ly suspected of a +ra(e cri%e such is the
instinct of self1 preser(ation. 4he act of abscondin+ is no
doubt rele(ant piece of e(idence to be considered alon+
)ith other e(idence but its (alue )ould al)ays depend on
the circu%stances of each case. 2or%ally the courts are
disinclined to attach %uch i%portance to the act of
abscondin+5 treatin+ it as a (ery s%all ite% in the e(idence
for sustainin+ con(iction. 3t can scarcely be held as a
deter%inin+ lin- in co%pletin+ the chain of circu%stantial
e(idence )hich %ust ad%it of no other reasonable
hypothesis than that of the +uilt of the accused. 3n the
present case the appellant )as )ith .a% handra till the
;3. )as lod+ed. 3f thereafter he felt that he )as bein+
)ron+ly suspected and he tried to -eep out of the )ay )e
do not thin- this circu%stance can be considered to be
necessarily e(idence of a +uilty %ind atte%ptin+ to e(ade
*ustice. 3t is not inconsistent )ith his innocence.M
33. , si%ilar (ie) has been reiterated by this ourt in
.ah%an (. &tate of 6.!.5 ,3. 1972 & 110NState of M.P. v.
Paltan Mallah and Ors., AIR 2005 & 733N and Bipin Kumar
Mondal v. State of West Bengal, J 2010 >7? & 379.
34. ,bscondance by a person a+ainst )ho% ;3. has been
lod+ed5 ha(in+ an apprehension of bein+ apprehended by
the police5 cannot be said to be unnatural. 4hus5 %ere
abscondance by the appellant after co%%ission of the
cri%e and re%ainin+ untraceable for a period of siB days
itself cannot establish his +uilt. ,bscondin+ by itself is not
conclusi(e proof of either of +uilt or of a +uilty
conscience.
>@%phasis supplied?
,bscondance per se5 after co%%ission of a cri%e is not by
itself proof of +uilt of a person.F
86. ,t a later sta+e of the *ud+%ent the /onHble /i+h ourt after
discussin+ the e(idence led on record by the prosecution in the said case
further )ent on to discuss the la) on abscondance of an accused fro%
!ara 2o. 1604 as under" 1
C1604. 3t is trite that %ere abscondance per se after
co%%ission of an offence of )hich such person %ay not
be the author5 %ay not by itself be sufficient to dra) an
ad(erse inference a+ainst hi% as it )ould +o a+ainst the
presu%ption of innocence of all persons. 3t is accepted
that people %ay run a)ay upon bein+ suspected of
in(ol(e%ent in a cri%e out of fear of police arrest.
/o)e(er5 if other incri%inatin+ circu%stances are present5
then abscondance )ould be considered5 as rele(ant
conduct or circu%stance to dra) an inference of +uilt. )e
shall no) consider the le+al effect of this abscondance in
the facts of the present case.
H9I W(a! #s !(e $e&a$ #+Ba'! o" !(#s aAs'o%-a%'eI
1605. 8earned counsels for the defence ha(e sub%itted
that the appellants )ere not abscondin+ and that5 in any
case5 abscondance is not a rele(ant circu%stance )hile
considerin+ as to )hether the prosecution had established
an unbro-en chain of e(idence )hich unerrin+ly points
to)ards the +uilt of the appellants.
1606. !lacin+ reliance on the pronounce%ent of the
&upre%e ourt in 1,$!$2 3 +-- !0 +idhartha 4ashisht
alias 5anu +harma v. +tate 16-T of )elhi25 it has been
ar+ued by $r. 'ayan 7rishnan5 additional standin+
counsel that it is a settled le+al position that abscondance
is not %erely rele(ant conduct but is also a circu%stance
)hich cannot be i+nored. 3n this re+ard5 in S#--(a)!(a
9as(#s(! >supra?5 the &upre%e ourt had obser(ed as
follo)s"1
C230. ;ro% the testi%onies of !0 20 and !0 245 it is
pro(ed beyond reasonable doubt that accused &idhartha
9ashisht G $anu &har%a after co%%ittin+ the %urder of
<essica 8al fled a)ay fro% the scene of occurrence. 3t is
further pro(ed fro% the testi%onies of !0 1005 !0 1015
!0 87 .a%an 8a%ba5 !0 85 and !0 80 that fro%
afternoon of 301411999 search )as %ade for the blac-
4ata &afari bearin+ .e+istration 2o. / 01 0 6535 and
for &idhartha 9ashisht G $anu &har%a5 'irector of
!iccadilly ,+ro 3ndustries at Bhadson5 7uru-shetra5
handi+arh5 his far%house at &a%al-ha and #-hla5
'elhi.
BBB BBB BBB
232. , cri%inal trial is not an en=uiry into the conduct of an
accused for any purpose other than to deter%ine )hether
he is +uilty of the offence char+ed. 3n this connection5 that
piece of conduct can be held to be incri%inatory )hich has
no reasonable eBplanation eBcept on the hypothesis that
he is +uilty. onduct )hich destroys the presu%ption of
innocence can alone be considered as %aterial. 3n this
re+ard5 it is useful to refer "nant -hintaman Lag* v. State
o 0omba%, "I# 1960 & 500 " 1960 ri 8< 682 >,3. pp.
523 and 52615275 paras 68 and 76?
C68. ircu%stantial e(idence in this conteBt %eans a
co%bination of facts creatin+ a net)or- throu+h )hich
there is no escape for the accused5 because the facts
ta-en as a )hole do not ad%it of any inference but of his
+uilt.
S S S S
76. ... 4his conduct of the accused )as so -nit to+ether as
to %a-e a net)or- of circu%stances pointin+ only to his
+uilt. .../is %ethod )as his o)n undoin+N because e(en
the lon+ ar% of coincidence could not eBplain the
%ultitude of circu%stances a+ainst hi%5 and they destroy
the presu%ption of innocence )ith )hich la) clothed hi%.F
233. 4hus5 it has been pro(ed beyond reasonable doubt
that accused $anu &har%a aAs'o%-e- a"!e) !(e
#%'#-e%! 1(#'( #s a <e)2 )e$e<a%! 'o%-0'! 0%-e)
Se'!#o% 5 o" !(e E<#-e%'e A'!.
>@%phasis by us?
1607. #ur attention has also been dra)n to a *ud+%ent
relied upon on behalf of 9ishal Dada( reported at 1,$!!2
!! +-- #7&0 +.8. 9usuf v. +tate of :est %engal )here
in para 31 it has been held as follo)s" 1
C31. Both the courts belo) ha(e considered the
circu%stance of abscondance of the appellant as a
circu%stance on the basis of )hich an ad(erse inference
could be dra)n a+ainst hi%. 3t is a settled le+al proposition
that in case a person is abscondin+ after co%%ission of
offence of )hich he %ay not e(en be the author5 such a
circu%stance a$o%e %ay not be enou+h to dra) an
ad(erse inference a+ainst hi% as it )ould +o a+ainst the
doctrine of innocence. 3t is =uite possible that he %ay be
runnin+ a)ay %erely on bein+ suspected5 out of fear of
police arrest and harass%ent. >9ide $atru (. &tate of 6.!.
Q>1971? 2 & 75 " 1971 & >ri? 391 " ,3. 1971 &
1050R5 !ara%*eet &in+h (. &tate of 6ttara-hand Q>2010? 10
& 439 " >2011? 1 & >ri? 98 " ,3. 2011 & 200R and
Dara Singh v. #e)*blic o India Q>2011? 2 & 490 " >2011?
2 & >ri? 706R? 4hus5 in (ie) of the la) referred to
hereinabo(e5 %ere abscondance of the appellant cannot
be ta-en as a circu%stance )hich +i(es rise to dra) an
ad(erse inference a+ainst hi%.
>6nderlinin+ by us?
1608. 3t therefore cannot be disputed that %ere
abscondance %ay not be of si+nificance. /o)e(er5
abscondance by accused persons has to be read in
confir%ation )ith the other established circu%stances. 3t
cannot be disputed that the sa%e )ould be rele(ant
conduct under &ection 8 of the @(idence ,ct. ;urther%ore
such conduct for )hich there is no reasonable eBplanation
eBcept the hypothesis that he is +uilty5 can be held to be
incri%inatory.
1609. 4he discussion by the &upre%e ourt and the
principles laid do)n in the *ud+%ent reported at ,3. 2012
&upre%e ourt 3539 5 +hyamal ;hosh v. +tate of :est
%engal are eBtre%ely topical and apply )ith full force to
the present case. 3n para 41 of the report5 the court held
as follo)s" 1
C41. ,s )e are discussin+ the conduct of the prosecution
)itnesses5 it is i%portant for !(e Co0)! !o %o!#'e !(e
'o%-0'! o" !(e a''0se- a$so. T(e a''0se- Be)so%s
1e)e aAs'o%-#%& #++e-#a!e$2 a"!e) !(e -a!e o" !(e
o''0))e%'e a%- 'o0$- %o! Ae a))es!e- -esB#!e <a)#o0s
)a#-s A2 !(e Bo$#'e a0!(o)#!#es. 4he in(esti+atin+ officer
had to +o to different places i.e. &odhpur and 'elhi to
arrest the accused persons. 3t is true that %erely bein+
a)ay fro% his residence ha(in+ an apprehension of bein+
apprehended by the police is not a (ery unnatural conduct
of an accused5 so as to be loo-ed upon as abscondin+ per
se )here the court )ould dra) an ad(erse inference.
!ara%*eet &in+h (. &tate of 6ttara-hand Q>2010? 10 &
439 " >2011? 1 & >ri? 98R is the *ud+%ent relied upon
by the learned counsel appearin+ for the appellant. B0!
1e 'a%%o! o<e)$oo; !(e "a'! !(a! !(e B)ese%! 'ase #s
%o! a 'ase 1(e)e !(e a''0se- 1e)e #%%o'e%! a%- (a-
a )easo%aA$e eC'0se "o) Ae#%& a1a2 ")o+ !(e#) %o)+a$
B$a'e o" )es#-e%'e. I% "a'!, !(e2 (a- $e"! !(e <#$$a&e a%-
1e)e %o! a<a#$aA$e "o) -a2s !o&e!(e). AAs'o%-#%& #%
s0'( a +a%%e) a%- "o) s0'( a $o%& Be)#o- #s a
)e$e<a%! 'o%s#-e)a!#o%. @(en if )e assu%e that
abscondin+ by itself %ay not be a positi(e circu%stance
consistent only )ith the hypothesis of +uilt of the accused
because it is not un-no)n that e(en innocent persons
%ay run a)ay for fear of bein+ falsely in(ol(ed in cri%inal
cases5 but in the present case5 #% <#e1 o" !(e
'#)'0+s!a%'es 1(#'( 1e (a<e -#s'0sse- #% !(#s
40-&+e%! a%- 1(#'( (a<e Aee% es!aA$#s(e- A2 !(e
B)ose'0!#o%, #! #s '$ea) !(a! aAs'o%-#%& o" !(e a''0se-
%o! o%$2 &oes 1#!( !(e (2Bo!(es#s o" &0#$! o" !(e
a''0se- A0! a$so Bo#%!s a -e"#%#!e "#%&e) !o1a)-s
!(e+. 4his court in the case of .abindra 7u%ar !al alias
'ara &in+h (. .epublic of 3ndia Q>2011 2 & 490?R" >,3.
2011 & 1436" 2011 ,3. &0 606?R5 held as under"
C88. 4he other circu%stance ur+ed by the prosecution )as
that ,13 absconded soon after the incident and a(oided
arrest and this abscondance bein+ a conduct under
&ection 8 of the @(idence ,ct51872 should be ta-en into
consideration alon+ )ith other e(idence to pro(e his +uilt.
4he fact re%ains that he )as not a(ailable for =uite so%e
ti%e till he )as arrested )hich fact has not been disputed
by the defence counsel. 0e are satished that before
acceptin+ the contents of the t)o letters and the e(idence
of !0 235 the trial <ud+e afforded hi% the re=uired
opportunity and follo)ed the procedure )hich )as ri+htly
accepted by the /i+h ourt.
>@%phasis by us?F
87. 4hus %erely because after the %urder of &%t. !hoolan 'e(i
accused .a*ender )as alle+edly %o(in+ around )ith accused &he-har
and .a*bir to different places or that he alon+)ith the% )as arrested by
&aharanpur police *ust outside the court )hen they )ere +oin+ to
surrender in itself is of no conse=uence at all. ertainly after 27.07.2001
)hen accused &her &in+h .ana alle+edly clai%ed in(ol(e%ent of accused
.a*ender in the incident then the police %ust be on the loo- out for
.a*ender. 3t is thus no stran+e beha(iour on the part of accused .a*ender
)hether he )as a part of the conspiracy or not to escape a)ay fro% the
clutches of police. 3t is often seen that e(en innocent persons sou+ht to be
arrested by the police )hether ri+htly or )ron+ly in one or the other case
tend to flee a)ay. 4hus e(en if it is presu%ed that accused .a*ender )as
%o(in+ alon+)ith accused .a*bir and &he-har to different places and
stayed at different hotels before bein+ finally arrested at &aharanpur then
also this fact cannot be considered as an incri%inatin+ circu%stance and
especially )hen the prosecution has failed to pro(e any other incri%inatin+
circu%stance so as to connect hi% )ith the conspiracy in =uestion. 3n fact
there is no e(idence on record to sho) that police e(er )ent to the
residence or at the )or- place of .a*ender durin+ those days or that he
)as found to be abscondin+ a)ay.
88. ,s re+ards the reco(ery of i%pu+ned )hite $aruti ar also 3
%ay state that prosecution has e(en failed to pro(e that the said )hite
$aruti ar )as e(en used at any point of ti%e in the entire conspiracy to
co%%it the %urder of &%t. !hoolan 'e(i. 4he use of said car could not be
connected )ith the offence in =uestion in any %anner. >I shall be
disc*ssing at a later stage d*ring the disc*ssion o the case G*a acc*sed
#a+bir that *se o mar*ti car no. 'P 1!0 7779 co*ld not be connected with
the oence in G*estion in an% manner?. 4hus %ere reco(ery of the said car
e(en if presu%ed to ha(e been reco(ered at the instance of the three
accused persons >in act the alleged recover% o the car rom a road near
the -o*rts with its ke% l%ing on the gro*nd nearb% is also do*bt*l and
shall be disc*ssed se)aratel%3 cannot connect accused .a*ender )ith the
conspiracy in =uestion or that he )as a part of the said conspiracy %uch
less pro(in+ that he )as e(en a)are of the ob*ecti(e sou+ht to be
achie(ed by (irtue of the said cri%inal conspiracy.
A9. <rom the aforesaid discussion I am thus of the considered
opinion that prosecution has completely failed in connecting
accused a.ender for any of the offences in =uestion or with the
criminal conspiracy in any manner for which charges were framed
against him.
Case a&a#%s! a''0se- S0)e%-e) S#%&( Ne&#
P)#o) A'>0a#%!a%'e 1#!( S(e) S#%&( Ra%a
90. 4he fact that accused &urender &in+h 2e+i )as )or-in+ at the
li=uor (end of &her &in+h .ana alloted in the na%e of !an-a* 7alra )as
sou+ht to be pro(ed by the deposition of !0162 !an-a* 7alra and !01130
#%pal &in+h. ,s already discussed !0162 !an-a* 7alra has co%pletely
diso)ned the prosecution story in this re+ard. !01130 #%pal &in+h a
hard)are shop o)ner ha(in+ his shop near the said li=uor (end also did
not support the prosecution case in this re+ard. 4he prosecution ho)e(er
placed on record certain infor%ation )hich )as sent by !062 !an-a*
7alra to the @Bcise 'epart%ent in this re+ard and )hich has been pro(ed
by !0141 ,.7. &har%a 'y. @Bcise o%%issioner5 'ehradun. 3 a%
ho)e(er not enterin+ into any discussion as to )hether the said
docu%ents conclusi(ely pro(e this fact or not5 for e(en if it is presu%ed for
the sa-e of ar+u%ents that accused &urender &in+h )as indeed )or-in+
at the said li=uor (end and )as an old ac=uaintance of accused &her
&in+h .ana then also the prosecution has failed to pro(e that he )as a
part of the cri%inal conspiracy bein+ hatched by accused &her &in+h .ana
and others or that he )as e(en a)are of the ob*ecti(e sou+ht to be
achie(ed by (irtue of said cri%inal conspiracy.
7alra )ith respect to the alle+ed %eetin+ at the residence of &her &in+h
.ana5 there is nothin+ on record to dra) an inference re+ardin+ this prior
ac=uaintance or association of accused &urender &in+h 2e+i )ith accused
&her &in+h .ana bein+ incri%inatory in nature.
T(e B)ose'0!#o% (as !(0s "a#$e- #% B)o<#%& !(#s '#)'0+s!a%'e
F0)%#s(#%& o" "a;e s0)e!2 o% !(e Aas#s o" "a$se -o'0+e%!s "o)
a''0se- Ra4e%-e).
92. 3 %ay state that thou+h the prosecution has led e(idence of
court officials of the court of 8d. ,<$5 /arid)ar or that of hand)ritin+
eBperts and )itnesses fro% ;&8 and transport authority to sho) that
accused &urender &in+h stood surety for accused .a*ender i%personatin+
as 9irender :iri and produced false docu%ents of a t)o )heeler scooter.
/o)e(er 3 a% not enterin+ into any discussion in this re+ard as the
i%pu+ned offence u/s 193 3! )as ad%ittedly co%%itted durin+ the course
of *udicial proceedin+s before a court of la) at /arid)ar. ,d%ittedly there
is no co%plaint u/s 195 r.!.. )hich )as %andatorily re=uired to be filed
by the court concerned and so e(en the (ery co+niAance of the said
offence u/s 193 3! ta-en in the present case is bad in la).
93. 8d. &pecial !! for the &tate thou+h sou+ht to ar+ue that no
such co%plaint u/s 195 r.!.. )as re=uired. 3n this re+ard he e(en placed
reliance upon the case5 I>Aa$ S#%&( ?a)1a( 9s. ?ee%a;s(# ?a)1a(, II
/200.3 CCR 17 /SC3 and S!a!e o" Ta+#$ Na-0 9s. Na$#%#, C).L.J. 31245
statin+ that since the falsification of the docu%ents too- place outside the
court so no co%plaint u/s 195 r.!.. )as re=uired. ertainly there can not
be any dispute )ith respect to the preposition of la) as %entioned in the
said case la) but in the case in hand the case a+ainst accused is that
besides producin+ false docu%ents he also i%personated hi%self before
the court of 8d. ,<$5 /arid)ar. 4hus the (ery act of appearin+ as a
surety i%personatin+ as 9irender :iri by accused &urinder &in+h
co%%itted before the court of 8d. ,<$5 /arid)ar durin+ the course of
*udicial proceedin+s also a%ounted to co%%ission of the offence u/s 193
3! and for )hich co%plaint u/s 195 r.!.. is %andatory fro% the court
concerned. 3n these circu%stances the (ery co+niAance of the offence u/s
193 3! by this court )as bad in la).
94. 4he reason )hy 3 a% not discussin+ the e(idence of the
hand)ritin+ eBperts or that of the transport authority officials led by the
prosecution is that in the absence of prosecution ha(in+ failed in
establishin+ that accused &urender &in+h 2e+i )as either a part of the
conspiracy so hatched by accused &her &in+ .ana or )as e(en a)are of
the ob*ecti(e sou+ht to be achie(ed by the said cri%inal conspiracy so the
courts at 'elhi e(en lac-s *urisdiction under the ode of ri%inal
!rocedure to try the said offence u/s 193 3! or conse=uently the offences
u/s 419/468/471 3!. 3n these circu%stances any eBpression of opinion by
this court =ua the said piece of e(idence %i+ht pre*udice the prosecution or
the accused if at any future date any prosecution is launched a+ainst
accused &urender &in+h 2e+i before the courts at /arid)ar.
95. I! #s !(0s '$ea) !(a! !(e B)ose'0!#o% #% !(ese '#)'0+s!a%'es
(as 'o+B$e!e$2 "a#$e- #% B)o<#%& #!s 'ase a&a#%s! a''0se- S0)e%-e)
>0a !(e '(a)&e o" 'o%sB#)a'2 a%- !(0s as )e&a)-s !(e '(a)&e "o) !(e
o""e%'e o" Be)40)2 a%- "a$s#"#'a!#o% o" -o'0+e%!s o) !(e#) 0se !(e)eo"
o) !(e o""e%'e o" '(ea!#%& A2 #+Be)so%a!#o% !(e 'o0)!s a! De$(# $a';s
40)#s-#'!#o% a%- #% "a'! !(e <e)2 'o&%#Ja%'e "o) !(e o""e%'e 06s 13
IPC !a;e% A2 !(#s 'o0)! >0a !(e o""e%'e o" Be)40)2 #% !(e aAse%'e o"
'o+B$a#%! 06s 1. C).PC ")o+ !(e Co0)! 'o%'e)%e- 1as Aa- #% $a1.
Case a&a#%s! a''0se- Ra4A#)
96. 4he case of prosecution a+ainst accused .a*bir is under t)o
heads. ;irstly li-e accused &urender on 26.07.2001 he stood surety for
accused .a*ender in the courts at /arid)ar on the basis of false
docu%ents and )hile also i%personatin+ hi%self as &he-har &in+h.
&econdly he )as an acti(e %e%ber of the conspiracy so hatched and in
fact )as (ery %uch present near the place of incident in one )hite $aruti
ar no. 6!114B17559 as a bac-up (ehicle to facilitate the escape of
accused sher &in+h .ana5 &he-har and 'han !ar-ash soon after the
co%%ission of offence.
P)#o) A'>0a#%!a%'e 1#!( a''0se- S(e) S#%&( Ra%a
97. 4he prior ac=uaintance of accused .a*bir )ith accused &her
&in+h .ana stands pro(ed not only fro% the photo+raphs of a (isit of &%t.
!hoolan 'e(i to /arid)ar as placed and pro(ed on record by the
prosecution but also !0 6%a 7ashyap has stated so. 4heir prior
ac=uaintance has not been e(en disputed by accused .a*bir and &her
&in+h .ana also and it can be thus safely presu%ed that they both )ere
earlier ac=uainted )ith each other. /o)e(er )hether this ac=uaintance in
itself can a%ount to an incri%inatin+ circu%stance or )hether this prior
ac=uaintance alon+)ith other circu%stances sou+ht to be pro(ed by the
prosecution can a%ount to an incri%inatin+ circu%stance a+ainst accused
.a*bir. 4his is the %oot =uestion to be loo-ed into.
98. ertainly the %ere prior ac=uaintance of accused .a*bir )ith
accused &her &in+h .ana can be of no conse=uence at all in itself to
dra) any conclusion about his in(ol(e%ent in the conspiracy in =uestion.
,s re+ards his participation in a %eetin+ held at the house of accused
&her &in+h .ana to discuss the (arious contours of the conspiracy bein+
so hatched5 the sa%e could not be pro(ed by the prosecution as already
discussed by %e )hile discussin+ the deposition of !0 62 !an-a* 7alra.
T(e B)ose'0!#o% (as !(0s "a#$e- !o B)o<e !(#s '#)'0+s!a%'e.
P)ese%'e o" a''0se- Ra4A#) S#%&( #% 1(#!e ?a)0!# Ca) No. UP-14B-
,.. %ea) =o$ Da; @(a%a o% !(e -a2 o" #%'#-e%!3.
99. o%in+ no) to the case of prosecution as re+ards the role of
accused .a*bir on the actual date of offence 3.e 25.07.2001 3 %ay state at
the outset itself that prosecution has %iserably failed in doin+ so. 4he
reasons are a%ple and clear.
100. 4he tra(el of accused .a*bir )ith co1accused &he-har and
'han !ar-ash fro% .oor-ee to 'elhi on 25.07.2001 in the )hite $aruti
ar 2o. 6!114B17559 )as sou+ht to be pro(ed fro% the deposition of !01
118 2aresh. /e )as the o)ner of C$ohan $otorsF at :haAiabad )here the
accused persons alle+edly +ot their said car on the )ay repaired. /o)e(er
this )itness diso)ned the prosecution story =ua the %aterial aspect that
he had seen accused .a*bir or any other person on that day ha(in+ co%e
to his +ara+e )ith the said %aruti car to +et it repaired. /e %erely stated
that he )as sittin+ inside his car +ara+e and thus )as not a)are as to )ho
had co%e to +et any such car repaired. 4hus this aspect of the prosecution
case does not +et any support fro% his deposition.
101. o%in+ no) to the deposition of !0 ,&3 &ri 7rishan of 4raffic
!olice )ho )as present on the day of incident at near :ole 'a- 7hana
and had sou+ht to challan .a*bir on the +round of )ron+ par-in+. #ne
)ould ha(e found no fault or any abnor%al circu%stance in the fact that he
let off a car dri(er on his re=uest that he )as fro% outside 'elhi and )as
not a)are of the rules. &uch a conduct is not (ery unco%%on on the
streets of 'elhi. #ften the police officials tend to not challan the dri(er of
an offendin+ (ehicle and allo)s hi% to +o a)ay after )arnin+ hi% to not
repeat it in furture. /o)e(er )hat is stran+e is that )hile allo)in+ hi% to +o
a)ay ,&3 &ri 7rishan chose to note do)n the car nu%ber on the co(er of
his challan boo-. 4his aspect does not appear to be a %ere co1incidence
especially )hen in the o(erall facts and circu%stances of the case the
in(esti+ation conducted by the police is also not free fro% doubts. 4his act
of ,&3 &ri 7rishan appears to be hi+hly i%probable and unbelie(able.
$oreo(er a perusal of the said challan boo- sho)s that eBcept notin+
do)n the (ehicle nu%bers in(ol(ed in the present case ,&3 &ri 7rishan did
not note do)n the nu%ber of any other (ehicle on the said challan boo-
@B. !0 24/1 durin+ the period fro% 25.07.01 to 29.07.01 )hen he )as
usin+ the said challan boo-.
102. 4he deposition of ,&3 &ri 7rishan thus appears to be not
reliable especially in the absence of so%e co+ent and con(incin+ piece of
corroboratin+ e(idence.
103. ;urther%ore as already discussed the e(idence sou+ht to be
led by the prosecution =ua the use of %obile phones is clearly inad%issible
in la) and thus cannot be ta-en into consideration a+ainst the accused.
104. ,part fro% the aforesaid circu%stances 3 %ay also state that
as per the prosecution case itself no further role )as ad%ittedly played by
accused .a*bir at the actual ti%e of co%%ission of %urder of &%t. !hoolan
'e(i. 'ra)in+ of any presu%ption that other co1accused persons )ere
sittin+ in his car prior to the incident )ill be clearly a fallacious conclusion
not borne out fro% any le+ally ad%issible e(idence led by the prosecution
but based on the disclosure state%ents of accused persons only )hich are
hit by section 25 @(idence ,ct and is thus not per%issible in la). #ne other
state%ent %ade by 6%a 7ashyap and her husband 9i*ay 7ashyap that
)hile they )ere tra(elin+ )ith accused &her &in+h .ana fro% .oor-ee to
'elhi on the %ornin+ of 25.07.2001 they had heard &her &in+h .ana
tal-in+ on %obile phone and callin+ na%es .a*bir or &he-har repeatedly
cannot a%ount to any incri%inatin+ circu%stance e(en if the deposition of
!01175 6%a 7ashyap and !01185 9i*ay 7ashyap is ta-en to be correct in
this re+ard. 4here %ay be nu%ber of circu%stances in )hich a person %ay
tend to call any of his ac=uaintance >.a*bir ad%ittedly )as a prior
ac=uaintance of accused &her &in+h .ana? and thus this fact in itself does
not lead to any conclusion that .a*bir )as tra(elin+ )ith other t)o co1
accused na%ely she-har and 'han !ar-ash in another )hite $aruti car in
furtherance of any cri%inal conspiracy.
T(e B)ose'0!#o% (as !(0s "a#$e- !o B)o<e !(#s '#)'0+s!a%'e.
AAs'o%-a%'e o" a''0se- Ra4A#) S#%&(
105. 4he neBt circu%stance )hich the prosecution has sou+ht to
pro(e is the abscondance of accused .a*bir alon+)ith other co1accused
persons soon after the death of &%t. !hoolan 'e(i to different places and
finally his arrest fro% outside the courts at &aharanpur )here he alle+edly
ca%e to surrender alon+)ith accused .a*ender and &he-har. ,s already
%entioned by %e )hile discussin+ the case of prosecution =ua accused
.a*ender that %ere abscondin+ a)ay of a person after the incident
)hether he )as in(ol(ed in the co%%ission of offence or not cannot be )er
se treated as an incri%inatin+ circu%stance especially )hen the said
circu%stance does not stand supported fro% any other incri%inatin+
circu%stance. 4hus nothin+ ad(erse can be read a+ainst hi% in %erely
fleein+ a)ay fro% his house alon+)ith other co1accused persons e(en if
this fact is presu%ed to be true as no other incri%inatin+ circu%stance
stands pro(ed on record. #nce a+ain there is also nothin+ on record to
sho) that police )ent to the house of .a*bir prior to his arrest or that he
)as found to be %issin+.
Re'o<e)2 o" 1(#!e ?a)0!# Ca) a%- s#C '(a%'e "#%&e) B)#%!s
106. ,s re+ards the reco(ery of i%pu+ned )hite %aruti car fro% a
+ali near the court co%pleB &aharanpur 3 %ay state that not only the said
car )as found to be par-ed in a public +ali )ith its -ey lyin+ on the +round
nearby but e(en other)ise e(en if the car is presu%ed to ha(e been
reco(ered at his instance then also )hen the prosecution has failed to
pro(e in any %anner the in(ol(e%ent of the said car in the conspiracy or
e(en its presence at near the place of occurrence on the day of incident5
the reco(ery of the said car is co%pletely of no conse=uence. 3t is also of
no si+nificance at all that the said )hite %aruti car )as o)ned by accused
&her &in+h .ana or not and since .a*bir )as his old ac=uaintance so
nothin+ ad(erse can be read a+ainst accused .a*bir e(en if at so%e point
of ti%e he )as found to be in possession of the said )hite %aruti car.
&i%ilar is the position )hen certain chance fin+er prints )ere found fro%
the said )hite %aruti car and upon co%parison the sa%e tallied )ith that of
accused .a*bir. 2o ad(erse inference can be dra)n fro% the said chance
prints found inside the car and especially )hen use of the said car in the
entire conspiracy could not be pro(ed by the prosecution.
107. 3 %ay thus once a+ain reiterate that since the in(ol(e%ent of
)hite %aruti car in the i%pu+ned conspiracy could not be pro(ed so its
reco(ery at the instance of accused .a*bir is also of no conse=uence.
&i%ilarly )hen the deposition of ,&3 &hri 7rishan as re+ards the presence
of accused .a*bir )ith the said )hite %aruti car at :ole 'a- 7hana on the
day of incident appears to be doubtful so the subse=uent identification of
accused .a*bir fro% his photo+raph by ,&3 &ri 7rishan is also of no
conse=uence at all. 3n fact the presence of !0197 <eet &in+h5 the crane
dri(er at near :ol 'a- 7hana on the day of incident )hen ,&3 &ri 7rishan
)as tal-in+ to .a*bir is also (ery doubtful in the o(erall facts and
circu%stances of the case.
108. 4he prosecution case appears to be relyin+ upon too %any
co1incidences and the sa%e puts the court %ore on its +uard to closely
scrutiniAe the e(idence =ua such )itnesses of (arious co1incidences.
109. !0197 <eet &in+h5 the crane dri(er stated that )hen ,&3 &ri
7rishan )as posted in 0est 'istrict then at that ti%e his crane )as also
attached on traffic police duty in 0est 'istrict only. 3t )as =uite stran+e that
on the day of incident <eet &in+h alon+)ith his crane happened to be in
2e) 'elhi 'istrict e(en throu+h his crane )as not attached on traffic police
duty in the 2e) 'elhi 'istrict and he happened to %eet ,&3 &ri 7rishan.
110. Be that as it %ay5 )hen the deposition of ,&3 &ri 7rishan itself
does not inspire confidence so the clai% of this crane dri(er that he also
sa) .a*bir )ith the said )hite %aruti car on that day at near :ol 'a-
7hana appears to be hi+hly doubtful.
111. 3n (ie) of %y aforesaid discussion 3 a% thus of the considered
opinion that prosecution has %iserably failed in establishin+ the co%plicity
of accused .a*bir in the conspiracy in any %anner )hatsoe(er. 3t is for this
reason that his appearance as a surety for accused .a*ender in the courts
at /arid)ar on 26.07.2001 %ay be )hile i%personatin+ as &he-har &in+h
or on the basis of false docu%ents cannot be ta-en co+niAance of by this
court at 'elhi. 3 need not to repeat %y discussion in this re+ard as
%entioned )hile discussin+ the case of prosecution =ua accused &urender
&in+h.
112. 4hus in so far the offence of per*ury or of falsification of
docu%ents or of cheatin+ by i%personation a+ainst accused .a*bir is
concerned this court at 'elhi lac-s *urisdiction and e(en the (ery
co+niAance of the offence of per*ury in the absence of a co%plaint u/s 195
r.!.. fro% the concerned court at /arid)ar is bad in la).
T(e 'ase o" B)ose'0!#o% >0a #%<o$<e+e%! o" a''0se- Ra4A#) #% !(e
#+B0&%e- ')#+#%a$ 'o%sB#)a'2 !(0s -oes %o! s!a%- B)o<e- a! a$$.
Case a&a#%s! a''0se- 9#4a2 S#%&( Ra%a : Ra40
7alra )ho )as the sole )itness eBa%ined by the prosecution )ith re+ard
to the %eetin+ alle+edly held at the house of accused &her &in+h .ana
)herein the entire plan )as discussed and role assi+ned to different
accused persons5 the said fact does not stand pro(ed as !062 !an-a*
7alra chose not to support the case of prosecution in this re+ard. 4hus the
fact that such a %eetin+ too- place bet)een (arious co1accused persons
does not stand pro(ed. 4he %ere fact that accused 9i*ay &in+h .ana )as
the brother of accused &her &in+h .ana is also no incri%inatin+
circu%stance in itself.
114. ,s re+ards %obile phone no. 9837222779 alle+edly borro)ed
by hi% fro% !03 7o(id Batra 3 %ay state 7o(id Batra has thou+h stated
that accused 9i*ay &in+h .ana borro)ed his %obile phone no.
9837222779 for his brother &her &in+h .ana but there is no le+ally
ad%issible e(idence to support the conclusion that it )as +i(en by accused
9i*ay &in+h .ana to accused &her &in+h .ana for bein+ used in the
present conspiracy or that accused 9i*ay &in+h .ana )as a)are of any
such conspiracy bein+ hatched by accused &her &in+h .ana. >&ho*gh
acc*sed Sher Singh #ana has admitted in his statement *8s 919 -r.P.-.
that he borrowed mobile )hone no. 9A97666779 rom PE>9 (ovid 0atra.
.e however denied that acc*sed 1i+a% Singh #ana borrowed it rom PE>9
(ovid 0atra?. 4hus e(en if for the sa-e of ar+u%ents it is presu%ed that the
said %obile phone )as +i(en to accused &her &in+h .ana by accused
9i*ay &in+h .ana after borro)in+ it fro% 7o(id Batra then also there is
nothin+ on record to su++est that accused 9i*ay &in+h .ana )as e(en
a)are of the purported use of the said %obile phone by accused &her
&in+h .ana in the present conspiracy. 4he prosecution case in this re+ard
relies upon the disclosure state%ents of the accused persons only and the
sa%e are clearly hit by section 25 @(idence ,ct. 4here is also nothin+ on
record to su++est that accused 9i*ay &in+h .ana )as e(en a)are of the
ob*ecti(e of the said conspiracy %uch less bein+ a party to the said
conspiracy.
115. ,part fro% the aforesaid facts 3 %ay a+ain reiterate that the
call detail record or the cell 3' chart )ith respect to the (arious %obile
phones alle+ed to ha(e been used by the accused persons in carryin+ out
the present conspiracy does not stand pro(ed by any le+ally ad%issible
e(idence5 for no certificate u/s 65B of the 3ndian @(idence ,ct has been
placed or pro(ed on record. 4hus another i%portant lin- )hich could ha(e
pro(ed the use of said %obile phone in the present conspiracy is also
%issin+. 'ra)in+ of any conclusion to the contrary )ill be pri%arily on the
basis of con*unctures and sur%ises only.
116. 4he contention of 8d. &pecial !! that accused 9i*ay &in+h
.ana facilitated the release of .a*ender &in+h and &har)an on bail on the
basis of fa-e sureties or on the basis of false docu%ents is also not borne
out fro% any le+ally ad%issible e(idence and the sa%e is clearly a
conclusion dra)n by the in(esti+atin+ a+ency on the basis of disclosure
state%ents %ade by the accused persons only. @(en !0 138 ,d(ocate
.a%esh hander ,++ar)al and !0 139 8aB%an &in+h5 the cler- of
,d(ocate &atish haudhary or !0 144 &atish haudhary throu+h )ho%
the (arious proceedin+s of surrenderin+ in the court or the subse=uent
proceedin+s for release of accused &har)an and .a*ender fro% *ail too-
place ha(e not supported the aforesaid conclusion.
117. 4here is yet another aspect of the %atter5 e(en if it is
presu%ed for the sa-e of ar+u%ents that accused 9i*ay &in+h .ana
facilitated the release of accused .a*ender and &har)an on bail on the
basis of fa-e surety and false docu%ents5 then also in the absence of there
bein+ no e(idence to pro(e that accused 9i*ay &in+h .ana )as a part of
the present conspiracy hatched by accused &her &in+h .ana so at the
%ost accused 9i*ay &in+h .ana by a stretch of ar+u%ents can only be
prosecuted alon+)ith accused &urender5 .a*bir and !ardeep >since
deceased? for the offence of per*ury or for tenderin+ false docu%ents in
*udicial proceedin+s only before the courts at /arid)ar only. #nce a+ain
the courts at 'elhi lac-s *urisdiction to try any such offence.
118. ,s re+ards the contention that after the incident accused &her
&in+h .ana ran+ up accused 9i*ay &in+h .ana to flee a)ay fro% the
house alon+)ith all fa%ily %e%bers and !062 !an-a* 7alra and that he
%et accused &her &in+h .ana at /arid)ar .ail)ay &tation on 26.07.2001
or that he alon+)ith other fa%ily %e%bers stayed at a hotel in $ussoorie
also does not a%ount to any incri%inatin+ circu%stance. ,s already
%entioned that e(en if it is presu%ed that accused &her &in+h .ana )as
in(ol(ed in the co%%ission of %urder of &%t. !hoolan 'e(i >I shall be
disc*ssing the case o )rosec*tion G*a acc*sed Sher Singh #ana at a
later stage? then also there is no e(idence on record to su++est that
accused 9i*ay &in+h .ana )as a)are of the conspiracy so hatched by
accused &her &in+h .ana or )as e(en a)are of the ob*ecti(e of the
conspiracy prior to 25.07.2001 or e(en )hen he %et accused &her &in+h
.ana at /arid)ar .ail)ay &tation on 26.07.2001. 4hus e(en if he fled
a)ay alon+)ith other fa%ily %e%bers then at the %ost the sa%e can be
construed as an ad(ice by accused &her &in+h .ana to his fa%ily
%e%bers to +o a)ay fro% the house lest the police %ay harass the% in
order to trace out accused &her &in+h .ana. &uch conduct does not
appear to be i%probable. 3n fact )hat else could be the reason for parents
of &her &in+h .ana to flee a)ay. $oreo(er as earlier also %entioned )hy
the fa%ily %e%bers of &her &in+h .ana )ill ta-e alon+)ith the% !062
!an-a* 7alra. 3n fact !062 !an-a* 7alra has denied that he had +one
alon+)ith accused 9i*ay &in+h .ana and other fa%ily %e%bers soon after
the incident to $ussoorie and stayed in a hotel.
119. ,ccused 9i*ay &in+h .ana infact led e(idence in defence by
callin+ the officers of telephone depart%ent fro% .oor-ee to sho) that
calls )ere bein+ %ade fro% the telephone installed at their house durin+
the period )hen police clai%s that he alon+)ith other fa%ily %e%bers had
fled a)ay fro% the house.
120. ,s re+ard the disclosure state%ent %ade by accused 9i*ay
&in+h .ana the sa%e is clearly inad%issible in la) bein+ hit by section 25
@(idence ,ct. 2either any fact nor anythin+ )as reco(ered pursuant
thereto )hich %ay %a-e it ad%issible under section 27 @(idence ,ct.
121. Be that as it %ay5 in (ie) of %y aforesaid discussion 3 a% of
the considered opinion that prosecution has %iserably failed in pro(in+ its
case a+ainst accused 9i*ay &in+h .ana that either he )as part of the
conspiracy in =uestion in any %anner or )as e(en a)are of the ob*ecti(e
sou+ht to be achie(ed by any such conspiracy.
T(e B)ose'0!#o% (as !(0s '$ea)$2 "a#$e- #% B)o<#%& #!s 'ase a&a#%s!
a''0se- 9#4a2 S#%&( Ra%a : Ra40.
Case a&a#%s! a''0se- A+#! Ra!(#
122. #nce a+ain the prior ac=uaintance of accused ,%it .athi )ith
accused &her &in+h .ana bein+ both residents of .oor-eee e(en if
presu%ed to be eBistin+ can not be held to be an incri%inatin+
circu%stance on its o)n. 0hat is ho)e(er re=uired to be seen is as to
)hether the said prior ac=uaintance if ta-en into consideration )ith other
circu%stances sou+ht to be pro(ed by the prosecution can a%ount to an
incri%inatin+ circu%stance and thereby leadin+ to pro(e that he )as a part
of the i%pu+ned cri%inal conspiracy. 2o doubt the fact that accused ,%it
.athi )as runnin+ a +un house in the na%e of C&ubhash :un /ouseF in
.oor-ee has not been disputed e(en by accused ,%it .athi hi%self.
/o)e(er there is no le+ally ad%issible e(idence on record to sho) that he
e(er supplied one re(ol(er %ade C0@B8@D E &#44 84'5 to accused
&her &in+h .ana5 eBcept for the disclosure state%ents of the t)o accused
persons )hich is clearly hit by &. 25 @(idence ,ct. 4here is nothin+ else on
record to support this conclusion. 4hus dra)in+ of any such presu%ption
%erely on the basis of con*unctures and sur%ises )ill not only be
fallacious but )ill be also contrary to the settled principles of 8a).
123. ,s re+ards +ettin+ the +roo(es of the re(ol(er ta%pered )ith
so that it %ay not tally )ith the bullets fired fro% it !0 70 ,fa= ,h%ed has
co%pletely diso)ned the prosecution story to this effect. /e e(en denied
that at any point of ti%e he )as )or-in+ at the shop of accused ,%it .athi
or that any re(ol(er )as e(er +i(en to hi% for repair %uch less for
ta%perin+ )ith its +roo(es. 4his )itness )as accordin+ly declared hostile
by 8d. &pecial !! and )as cross eBa%ined at len+th but nothin+ %aterial
could be elicited fro% his %outh )hich could either fa(our the case of the
prosecution or %ay lead %e to disbelie(e his deposition in any %anner.
124. 8d. ounsel for accused ,%it .athi e(en pointed out that the
ballistic eBpert also did not obser(e in his report that the +roo(es of the t)o
re(ol(ers )ere found te%pered and thus this theory of prosecution that
accused ,%it .athi +ot the +roo(es of the re(ol(ers ta%pered )ith does
not found support e(en fro% the ballistic eBpert report.
125. ,s re+ards the reco(ery of a diary on 16.08.2001 fro% the
house of accused &her &in+h .ana in )hich the nu%ber of accused ,%it
.athi or accused !ar(een $ittal )ere )ritten5 3 %ay state that the sa%e is
also of no conse=uence eBcept that it %ay reflect so%e prior interaction
bet)een the t)o but not necessarily in respect of the conspiracy in
=uestion.
126. 4he prosecution also sou+ht to pro(e that after the
co%%ission of the offence on 25.07.015 accused &her &in+h .ana
infor%ed accused ,%it .athi on telephone that he should abscond a)ay
as the police %i+ht apprehend hi%. /o)e(er 3 %ay a+ain state that in this
re+ard also prosecution has failed as e(en this could not be pro(ed that
the telephone in =uestion on )hich &her &in+h .ana alle+edly ran+ up
)as installed at the shop of accused ,%it .athi %uch less that after the
incident any such phone call )as %ade by accused &her &in+h .ana. ,s
already discussed the call details or cell 31' chart of the %obile phones
alle+edly used by accused &her &in+h can not be read into e(idence in the
absence of ertificate u/s 65 B 3ndian @(idence ,ct 1872. 4he prosecution
has thus clearly failed in this re+ard also.
127. 3n (ie) of %y aforesaid discussion5 3 a% thus of the
considered opinion that the prosecution has been unable to lead any
e(idence )hich could sho) that accused ,%it .athi )as in any %anner
in(ol(ed in the hatchin+ of the said conspiracy or that he )as a)are of any
such cri%inal conspiracy %uch less of the ob*ecti(e sou+ht to be achie(ed
in pursuance to the said cri%inal conspiracy.
128. 4he prosecution has thus co%pletely failed to pro(e that
accused ,%it .athi at any point of ti%e )as in possession of any
unlicensed ar% %uch less that he supplied the sa%e to accused &her
&in+h .ana.
a''0se- A+#! Ra!(#.
Case a&a#%s! a''0se- Pa)<ee% ?#!!a$.
129. ,s re+ard the fact that accused !ar(een $ittal )as a
practicin+ ,d(ocate at .oor-ee courts5 the sa%e stands pro(ed fro% the
deposition of !ar(een $ittal hi%self also )hen he entered the )itness boB
as '011 u/s 315 r.!. ,s re+ards the prior ac=uaintance of accused
!ar(een $ittal )ith accused &her &in+h .ana the sa%e thou+h has not
been pro(ed by )ay of any le+ally ad%issible e(idence led by the
prosecution (iA. that he either e(er represented accused &her &in+h .ana
in any %atter before any ourt of 8a) or in any other %anner he )as
-no)n to hi% but e(en if the said prior ac=uaintance is presu%ed for the
sa-e of ar+u%ents then also as already discussed earlier )hile discussin+
the case of other accused persons can not in itself a%ount to an
incri%inatin+ circu%stance.
130. ,s re+ard the supply of one re(ol(er C$,'@ 32 328@2'F by
accused !ar(een $ittal to accused &her &in+h .ana5 the prosecution
sou+ht to pro(e it by )ay of the deposition of !0 62 !an-a* 7alra. #nce
a+ain as already %entioned =ua the deposition of !0 62 !an-a* 7alra he
has chosen to not support the case of prosecution on any of the %aterial
aspect includin+ supply of any such re(ol(er by accused !ar(een $ittal to
&her &in+h .ana in his presence. /e specifically denied the su++estion
put to hi% by 8d. &pecial !! in his cross1eBa%ination that in his presence
any re(ol(er )as handed o(er by accused !ar(een $ittal to accused &her
&in+h .ana )rapped in a polythene ba+.
131. ,s re+ard the alle+ed le+al ad(ise +i(en by accused !ar(een
$ittal to accused &her &in+h .ana5 3 %ay a+ain state that the sa%e is
sou+ht to be pro(ed by the prosecution only by (irtue of the disclosure
state%ents of the accused persons )hich are clearly hit by &. 25 @(idence
,ct and can not be read into e(idence.
132. ,s re+ard the diary reco(ered fro% accused &her &in+h .ana
in )hich the nu%bers of accused ,%it .athi or accused !ar(een $ittal
)ere )ritten5 the sa%e once a+ain can at the %ost +o to su++est that
accused &her &in+h .ana had so%e prior ac=uaintance )ith the% and
nothin+ %ore. > I am not at all entering into an% disc*ssion as regard the
contention o Ld. deence -o*nsel that the diar% was s*bseG*entl% )lanted
b% the )olice, or the same is not reG*ired?.
133. 3n (ie) of %y aforesaid discussion5 3 a% thus of the
considered opinion that prosecution has failed to pro(e e(en by pre1
ponderance of probability %uch less beyond shado)s of all reasonable
doubts that accused !ar(een $ittal )as in any %anner connected )ith the
hatchin+ of the i%pu+ned cri%inal conspiracy by accused &her &in+h
.ana or others or that he participated in it in any %anner or that he )as
e(en a)are of the ob*ecti(e sou+ht to be achie(ed by the said cri%inal
conspiracy.
134. 4he prosecution has thus co%pletely failed to pro(e that
accused !ar(een $ittal at any point of ti%e )as in possession of any
unlicensed ar% %uch less that he supplied the sa%e to accused &her
&in+h .ana.
T(e B)ose'0!#o% (as !(0s "a#$e- #% B)o<#%& #!s 'ase a&a#%s! a''0se-
Pa)<ee% ?#!!a$.
Case a&a#%s! a''0se- @es(a< C(a0(a%.
135. ,ccused 7esha( hauhan is bein+ tried only for the offence
u/s 201 3! for ha(in+ caused disappearance of the e(idence of
co%%ission of cri%e. 4he prosecution has sou+ht to pro(e its case a+ainst
accused 7esha( hauhan by (irtue of deposition of !016 &urender
&har%a5 !01127 .a% hander 7ashyap5 !01141 .an*it &in+h and
!01160 6%ed &in+h. 3t is the case of prosecution that accused 7esha(
hauhan )ho )as a )or-er of the party of &%t. !hoolan 'e(i )as present
in the house of &%t. !hoolan 'e(i on the day of incident i.e. 25.07.01.
&oon after the attac- on &%t. !hoolan 'e(i and t. Balender too- place
and people +athered o(er there then accused 7esha( hauhan pic-ed up
the t)o country %ade pistols >)eapons of offence? )hich )ere dropped at
the spot by the t)o assailants and concealed the% in his clothes and later
on in the +ara+e of the house of &%t. !hoolan 'e(i )ith a (ie) to sell
the% at so%e later point of ti%e in order to earn so%e %oney. !016
&urender &har%a )ho )as a chance )itness ho)e(er sa) hi% doin+ so
before 7esha( hauhan sat in the %aruti (an in )hich the t)o in*ured )ere
re%o(ed to hospital.
136. ,s per the char+e sheet >)age 66 o the charge>sheet? the
case of prosecution is that !0 141 .an*eet &in+h sa) t)o country %ade
pistols lyin+ in the +ara+e of /. 2o. 445 ,sho-a .oad and in order to
preser(e the% he -ept the% in a corner of the +ara+e. /e thereafter
infor%ed about it to !0 127 .a% hander 7ashyap )ho in turn infor%ed
about it to 6%ed &in+h5 husband of &%t. !hoolan 'e(i. 4hereafter on
30.07.01 6%ed &in+h infor%ed the police in )ritin+ about t)o country
%ade pistols lyin+ in the +ara+e.
137. Before 3 ad(ert on to the nature of deposition of the said
)itnesses5 3 %ay state at the threshold itself that the story so propounded
by the in(esti+atin+ a+ency appears to be hi+hly i%probable. 3t is hi+hly
unbelie(able that soon after the co%%ission of such a %urderous assault
on &%t. !hoolan 'e(i and her !&# *ust outside the house of &%t. !hoolan
'e(i resultin+ in +atherin+ of a nu%ber of persons in shoc- and surprise
and arri(al of police )ithin 5 %inutes of re%o(al of &%t. !hoolan 'e(i to
hospital fro% the spot one poor person )ho )as present in the house of
&%t. !hoolan 'e(i )ill +o out and pic- up the )eapons of offence fro% the
spot and conceal the% in the +ara+e of the house )ith a (ie) to sell the%
at a later point of ti%e in order to earn %oney. 3n fact as per !016
&urender &har%a5 7esha( hauhan also sat in the said %aruti (an in
)hich &%t. !hoolan 'e(i and t. Balender )ere re%o(ed to hospital and
prior to it he had pic-ed up the t)o C-attasF lyin+ on the spot. 4his conduct
is hi+hly i%probable hu%an conduct and is difficult to di+est. 3nfact fro%
the nature of in(esti+ation conducted it is apparent that the said story has
been coo-ed up by the police later on in order to co(er up certain +aps and
lacunas in their in(esti+ation. 3t is beyond co%prehension as to )hy 3nsp.
:.8. $ehta )ho initially recorded the state%ent of )itness 7ali haran or
subse=uently 3nsp. &uresh 7aushi- )ho )as entrusted )ith the further
in(esti+ation of the %atter after re+istration of the ;3. %uch less any of the
other police officers )ho reached the spot did not %a-e any efforts to trace
out the said t)o %issin+ country %ade pistols >)eapons of offence? fro%
the spot on that day itself.
138. o%plainant 7ali haran in his state%ent had stated that the
assailants initially fired fro% the country %ade pistols and thereafter they
dropped the% at the spot itself and then fired fro% the t)o re(ol(ers they
)ere holdin+ in their other hand. 4hus it )as (ery %uch to the -no)led+e
of 3nsp. :.8. $ehta and other police officials that t)o )eapon of offence
out of the four )ere dropped at the spot itself by the assailants. 4he entire
case file is silent as to )hy no efforts )ere %ade to trace out the said
%issin+ )eapons of offence fro% the spot on the day of incident itself or
e(en thereafter till 30.07.2001.
139. ,part fro% the aforesaid circu%stances it is also =uite stran+e
that .a% hander or .an*eet &in+h despite co%in+ to -no) about
accused 7esha( hauhan ha(in+ lifted the said t)o country %ade pistols
fro% the spot did not report the %atter to the police.
140. ,part fro% the aforesaid circu%stances it )ill be )orth)hile to
see as to )hat !0 127 .a% hander 7ashyap or !0 141 .an*eet &in+h
deposed in the ourt. 4heir deposition )ill a+ain fortify %y initial
obser(ation that the conclusions %entioned in the char+e1sheet does not
co1relate )ith the e(idence led by the prosecution.
141. !01127 .a% hander 7ashyap stated that on 26.07.01
.an*eet &in+h told hi% that t)o country %ade pistols )ere lyin+ hidden in
the +ara+e of the bun+alo) beneath the table. /e further stated that he
ho)e(er told hi% that )e should not tell about it to anybody for it is the
duty of the police to in(esti+ate. /e further stated that on 27.07.01
accused 7esha( hauhan ca%e to the bun+alo) and he heard hi% sayin+
to !01141 .an*eet &in+h that t)o country %ade pistols lyin+ in the +ara+e
)ere the )eapons used in the cri%e i.e. in the %urder of &%t. !hoolan
'e(i and the attac- on t. Balender and also that those t)o fire ar%s )ere
pic-ed up by hi% fro% the place of occurrence after the incident and he
placed the% in the +ara+e.
142. !0 127 .a% hander 7ashyap further stated that he
disclosed and narrated the abo(e facts to !0 1605 6%ed &in+h5 husband
of &%t. !hoolan 'e(i. /e further stated that 6%ed &in+h also did not ta-e
any further action )hen he infor%ed hi% about the said facts as he i.e.
6%ed &in+h )as also terrified.
143. !0 141 .an*eet &in+h on the other hand stated that on the
ni+ht of 25.07.01 he had stayed in the +ara+e of /.2o. 445 ,sho-a .oad
and )hen on the neBt %ornin+ he )as cleanin+ the +ara+e then he found
so%e iron articles5 )hich the police later on told hi% )ere fire ar%s. /e
further stated that the said fire ar%s )ere -ept by hi% in a cloth ba+ and
)ere put belo) a )ooden cho)-i lyin+ in the +ara+e. /e further stated that
on the neBt day i.e. on 27.07.01 !0 .a% hander 7ashyap disclosed to
hi% that one 7esha( hauhan has put the fire ar%s in the +ara+e. /e
further stated that after .a% hander 7ashyap told hi% so then he i.e.
!011415 .an*eet &in+h told about the fact of reco(ery of fire ar%s to !0
11045 $unni 'e(i5 the sister of &%t. !hoolan 'e(i.
144. 2one of the aforesaid t)o )itnesses )ere either declared
hostile or cross1eBa%ined on behalf of the prosecution on any +round
)hatsoe(er. 3t is thus clear that both these )itnesses not only contradicted
each other but also deposed contrary to the contents of the char+e1sheet.
0hile !0 1275 .a% hander 7ashyap stated that he had o(er heard
7esha( hauhan tellin+ !0 141 .an*eet &in+h that he pic-ed up the fire
ar%s )hich )ere the )eapon of offence fro% the spot soon after the
incident but !0 141 stated that .a% hander 7ashyap told hi% that the
fire ar%s )ere pic-ed up by 7esha( hauhan fro% the spot and )ere
hidden in the +ara+e.
145. $oreo(er !0 1415 .an*eet &in+h stated that he disclosed
about these facts to !0 104 $unni 'e(i but !0 127 .a% hander
7ashyap stated that he disclosed about the t)o country %ade pistols lyin+
in the +ara+e to 6%ed &in+h but 6%ed &in+h also did not ta-e any action
as he too )as terrified.
146. ;ro% the aforesaid nature of deposition of these t)o
)itnesses it is thus crystal clear that the t)o country %ade pistols )ere not
reco(ered in the %anner as is no) pro*ected to ha(e been reco(ered. 4his
a+ain supports %y aforesaid discussion that such conduct of a person in
liftin+ t)o )eapons of offence fro% the spot soon after the incident i.e.
)ithin fe) %inutes of the firin+ incident ha(in+ ta-en place is hi+hly
i%probable and unbelie(able conduct. 4hus such a conduct attributed to
accused 7esha( hauhan is per se not belie(able.
147. 3t )ill be also )orth)hile to point out that e(en 3# 3nsp.
&uresh 7aushi- in his eBa%ination1in1chief stated that on 30.07.2001 !0
141 .an*eet &in+h told hi% about the country %ade pistols lyin+ in the
+ara+e. /e )as thus co%pletely silent that !0 160 6%ed &in+h had
infor%ed hi% about the said country %ade pistols lyin+ in the +ara+e %uch
less in )ritin+.
148. 3n (ie) of %y aforesaid discussion 3 a% thus of the
considered opinion that prosecution has %iserably failed to e(en pro(e by
pre1ponderance of probabilities %uch less beyond reasonable doubts that
the t)o )eapon of offence )ere pic-ed up by accused 7esha( hauhan
fro% the spot soon after the incident or )ere hidden in the +ara+e of /.2o.
445 ,sho-a .oad by hi%.
a''0se- @es(a< C(a0(a%.
Ce)!a#% 0%eCB$a#%e- '#)'0+s!a%'es #% !(e B)ose'0!#o% 'ase.
149. ,t this sta+e 3 )ould li-e to point out another interestin+
aspect of the present case. 4he char+e sheet filed by the police states that
thou+h t)o country %ade pistols )ere pro(ided to accused &her &in+h
.ana by one $ust-ee% and later on $ust-ee% )as found lod+ed in one
case of !& 7ot)ali5 $uAaffar 2a+ar. 4he char+e sheet also states that
father of accused &her &in+h .ana na%ely5 &urender &in+h had
deliberately +ot his surety )ithdra)n on 18.07.2001 in the case under
@Bcise ,ct already pendin+ a+ainst accused &her &in+h .ana and thereby
facilitatin+ &har)an to +o inside the *ail )hile i%personatin+ as accused
&her &in+h .ana. 4he char+e sheet ho)e(er thereafter states that the
said t)o persons could not be char+e1sheeted due to lac- of sufficient
e(idence. >Page 99 o the charge>sheet?
150. 4hese facts rather hi+h li+ht the (a+ue5 arbitrary and double
standards of the in(esti+atin+ a+ency. 0hile on the one hand they arrayed
a nu%ber of accused persons na%ely5 !ar(een $ittal5 ,%it .athi and 9i*ay
&in+h .ana pri%arily on the basis of deposition of !062 !an-a* 7alra or
!0170 ,fa= ,h%ed5 an e%ployee at the shop of accused ,%it .athi but
for reasons best -no)n to the in(esti+atin+ a+ency it did not in(esti+ate
properly the facts as to )hen and ho) $ust-ee% %ade a(ailable the t)o
country %ade pistols to accused &her &in+h .ana or )hether accused
&urender &in+h .ana5 father of &her &in+h .ana acted in furtherance of
the conspiracy so hatched by accused &her &in+h .ana and others. 3n fact
as discussed earlier !0162 !an-a* 7alra by (irtue of the in(esti+ation so
carried out appears to be a person )ho )as a)are of the conspiracy bein+
so hatched but later on bac-ed out and did not *oin the conspiracy any
further. ,s per prosecution case he thereafter fled a)ay fro% his house
after the incident alon+)ith fa%ily %e%bers of accused &her &in+h .ana.
!0162 !an-a* 7alra as discussed earlier has ho)e(er co%pletely
diso)ned the prosecution story in this re+ard in his deposition in the ourt.
151. /o)e(er5 as earlier also %entioned the in(esti+ation as
carried out in the present case is not free fro% doubts and as 3 shall be
discussin+ later on also )hile discussin+ the case =ua accused &her &in+h
.ana5 &he-har and 'han !ar-ash that the in(esti+ation in the present
case has been carried out in a (ery shoddy %anner either )ith a (ie) to
shield the real culprits or )ith a (ie) to )or- out a hi+h profile case to
a(oid any pressure fro% the hi+her authorities.
152. 4here is no eBplanation on record as to by )hat %easure the
e(idence a+ainst accused $ust-ee% or &urender &in+h .ana )as found
short. 3f accused ,%it .athi or !ar(een $ittal could ha(e been arrayed for
supplyin+ )eapons to accused &her &in+h .ana then ho) the role of
$ust-ee% stood on a different footin+.
153. &i%ilarly if &her &in+h .ana )as char+e sheeted for creatin+
a false plea of alibi by +ettin+ accused &har)an 7u%ar i%prisoned as
&her &in+h .ana then the said act could not ha(e been possible )ithout
&urender &in+h first )ithdra)in+ his surety and producin+ accused &her
&in+h .ana in the court. 3n fact !01138 ,d(ocate .a%esh hander
,++ar)al stated so that one person )hose na%e )as disclosed to hi% as
&her &in+h .ana )as produced in the court by &urender &in+h .ana.
4hus producin+ &har)an 7u%ar in the court as &her &in+h .ana could not
ha(e been possible unless &urender &in+h )as also in(ol(ed in the
conspiracy. ,lternati(ely if &urinder &in+h .ana )as not in(ol(ed in the
conspiracy than it also cannot be concluded that &har)an 7u%ar )ent to
*ail i%personatin+ as &her &in+h .ana in pursuance to the conspiracy in
=uestion herein. >I shall be however disc*ssing this as)ect at length at a
later stage while disc*ssing the case G*a acc*sed Sharwan (*mar?.
154. 4hus the fact re%ains that the in(esti+ation in the present
%atter has a nu%ber of uneBplained circu%stances )hich clearly raises
+ra(e shado)s of doubts as to the (eracity or correctness of the
in(esti+ation so carried out.
W(e!(e) !(e assa#$a%!s o" S+!. P(oo$a% De<# 1e)e +as;e-
155. Before ad(ertin+ further to discuss the case of prosecution
=ua accused &her &in+h .ana5 &he-har or 'han !ar-ash 3 )ould first li-e
to deal )ith one i%portant aspect of the prosecution case as to )hether
the assailants or the dri(er of car bearin+ no. 3$1907 in )hich the
assailants fled a)ay fro% the spot after the incident )ere )earin+ %as-s
at the ti%e of incident or not.
156. ,s already %entioned the accused persons ha(e been
harpin+ upon this aspect of the %atter ri+ht fro% the be+innin+ of the trial
statin+ that as per (arious co%%unications underta-en by senior officers of
the police on the day of incident itself the assailants of &%t. !hoolan 'e(i
)ere %as-ed persons. 4hey produced before the court copy of such
co%%unications %ade by the senior officers of police to (arious authorities
in :o(t. of 24 of 'elhi5 :o(t of 3ndia or to the &ecretary :eneral 8o-
&abha on the day of incident itself i.e. on 25.07.20015 ha(in+ been
obtained by the% under .43. 4hey also placed on record copies of
proceedin+s of 8o- &abha of the day of incident i.e. 25.07.2001 re+ardin+
the circu%stances in )hich &%t. !hoolan 'e(i5 the then5 $e%ber of
!arlia%ent )as shot dead or that of the proceedin+s )hich too- place on
31.07.2001 re+ardin+ the obituary reference %ade in the 8o- &abha. 4he
state%ents )ith re+ard to the circu%stances in )hich the death of &%t.
!hoolan 'e(i too- place )ere %ade in the 8o- &abha by5 the then5 /o%e
$inister5 :o(t. of 3ndia &h. 8. 7. ,d(ani.
157. Before 3 ad(ert on to the contents of the said co%%unications
or the state%ents %ade in the 8o- &abha on the t)o dates it )ill be
)orth)hile to %ention certain ob*ections pri%arily raised by 8d. &pecial !!
for the &tate as re+ards the ad%issibility of these docu%ents. 4he accused
persons recei(ed copies of the said co%%unications and record of
proceedin+s under .43 fro% 'elhi !olice and fro% 8o- &abha &ecretariat
and accused &he-har &in+h thereafter placed the% on record in his
deposition as '02 )hen he entered the )itness boB u/s 315 r.!.. 8d.
&pecial !! for the &tate ho)e(er ob*ected to the %ode of proof of the said
docu%ents.
158. 3n this re+ard it )ill be )orth)hile to %ention that durin+ the
course of trial a nu%ber of applications )ere %o(ed by the accused
persons see-in+ to su%%on &h. &uresh .oy5 the then5 <oint o%%issioner
of !olice5 2e) 'elhi ran+e and &h. 7. 7. !aul5 the then5 <oint
o%%issioner of ri%e Branch )ho had %ade the said co%%unications to
&h. !. 7. <alali5 <oint &ecretary5 $inistry of /o%e ,ffairs5 :o(t. of 3ndia or
to the office of 8ieutenant :o(ernor5 'elhi on the day of incident itself.
4hey also %ade re=uest to su%%on &h. 8. 7. ,d(ani )ho had %ade a
state%ent in the 8o- &abha on 25.07.2001 and 31.07.20015 &h. !. 7.
<alali5 <oint &ecretary5 $inistry of /o%e ,ffairs5 :o(t. of 3ndia and to
&ecretary to /onHble 8ieutenant :o(ernor of 'elhi to )ho% the said
co%%unications )ere addressed but the sa%e )ere stron+ly opposed by
the prosecution. 4he then 8d. !redecessor of this court also dis%issed the
said application findin+ it to be not necessary to su%%on the said
)itnesses. 4he said order )as ho)e(er challen+ed before /onHble /i+h
ourt of 'elhi by the accused persons. /o)e(er in the proceedin+s before
/onHble /i+h ourt of 'elhi 8d. ,!! representin+ the &tate %ade a
state%ent that since the docu%ents )hich are sou+ht to be pro(ed by
su%%onin+ (arious )itnesses are undisputed docu%ents so there )as no
re=uire%ent to su%%on the said )itnesses.
159. /onHble /i+h ourt accordin+ly in (ie) of the aforesaid
sub%issions of 8d. ,!! obser(ed that as the docu%ents in =uestion are
not in dispute so the )itnesses sou+ht to be su%%oned )ere not re=uired.
/o)e(er re=uest of the accused persons )as allo)ed to the effect that
necessary record fro% the office of !3#5 !atiala /ouse ourts be
su%%oned. 4hereafter )hen the !3#5 !atiala /ouse ourts )here the said
docu%ents )ere alle+edly recei(ed fro% the office of '!5 ri%e in
response to an .43 application )as called then it )as found that no such
docu%ents )ere a(ailable )ith hi%. 3n this re+ard &h. 9i*ay 7u%ar )ho
)as !3#5 !atiala /ouse ourts )as eBa%ined as a court )itness and he
stated that the .43 application %o(ed by $s. .eenala <halala5 ,d(ocate
)as recei(ed as-in+ for copies of follo)in+ co%%unication"1
1. 4he attested copy of letter 2o. 1533/!.&ec./2'. dated 25.07.2001 sent
by &h. &uresh .oy5 <oint o%%issioner of !olice to &h. !.7. <alali in case
;3. 2o. 253/015 !& !arlia%ent &treet.
2. ,ttested copy of letter 2o. 1121/!.&ec./<oint !/ri%e dated 26.07.2001
sent by &h. 7.7. !aul5 <oint o%%issioner of !olice to &h. !.7. <alali in
case ;3. 2o. 253/015 !& !arlia%ent &treet.
160. /e further stated that the said docu%ents )ere ho)e(er not
a(ailable in their record. 3n these circu%stances this court directed
su%%onin+ of one &3 &hya% &under )ho )as 3nchar+e5 .43 ell5 ri%e
Branch5 'elhi !olice to produce the record pertainin+ to the present case.
/e accordin+ly produced the record and )herein copies of the aforesaid
co%%unications )ere (ery %uch a(ailable and the sa%e )ere placed on
record as @B. 01/, to @B. 01/'. /o)e(er the letters or co%%unication
(ide )hich the said infor%ation )as sou+ht by the .43 ell of ri%e
Branch5 'elhi !olice fro% the office of &h. &uresh .oy and &h. 7. 7. !aul5
the t)o <oint o%%issioners )ere not a(ailable on record.
161. ,fter the aforesaid proceedin+s5 final ar+u%ents at len+th
)ere heard by this court for a period of about 1 T %onths and )hen 8d.
ounsel for the accused persons and accused &her &in+h .ana hi%self
a+ain sou+ht to place reliance on the aforesaid docu%ents or on the
record of the proceedin+s of 8o- &abha dated 25.07.2001 and 31.07.2001
then 8d. &pecial !! stron+ly opposed the placin+ of any reliance on the
said docu%ents statin+ that the sa%e ha(e not been pro(ed as per
@(idence ,ct and thus cannot be read into e(idence.
162. 3t )as at this sta+e that this court (ide a detailed order dated
19.07.2014 thou+ht it appropriate to su%%on u/s 311 r.!5 &h. &uresh
.oy5 the then5 <oint o%%issioner of !olice5 'elhi ran+e5 as a court
)itness. &h. &uresh .oy )as thus eBa%ined as a ourt )itness on
04.08.14.
163. ;ro% the aforesaid circu%stances a nu%ber of =uestions
arises"1
i. ;irstly )hat )as the reason for %a-in+ such co%%unication by the
senior officers of !olice to (arious hi+her authorities on that day or
)hat )as the reason &h. 8. 7. ,d(ani5 the then5 /o%e $inister5
:o(t. of 3ndia chose to %a-e a state%ent in the !arlia%ent initially
on 25.07.2001 and subse=uently on 31.07.2001.
ii. &econdly )hat )as the basis of infor%ation on )hich &h. &uresh
.oy and &h. 7. 7. !aul %ade the said co%%unication.
iii. 4hirdly )hat )as the basis on )hich &h. 8. 7. ,d(ani %ade a
state%ent on 25.07.2001 and 31.07.2001 in the 8o- &abha.
i(. ;ourthly )hether the true/certified copies obtained by the accused
persons under .43 fro% 'elhi !olice and 8o- &abha &ecretariat
)hich carries follo)in+ endorse%ent can be per se read into
e(idence.
4he copies of docu%ents containin+ discussion held in 8o- &abha
on 25.07.2001 and 31.07.2001 ha(e been certified by &h. /arish
hander >'y. &ecretary5 8o- &abha? )ith the follo)in+
endorse%ent"1
certified that this paper has been pro(ided to 7uldeep 7u%ar
sd1
/arish hander
'y. &ecretary
8o- &abha
4he copies of docu%ents recei(ed fro% police >/I? ha(e
been C,ttestedF by ,ssistant o%%issioner of !olice >/I?5
2e) 'elhi 'istrict5 2e) 'elhi.
(. ;ifthly )hether the contention of ld. &pecial !! that these
docu%ents cannot be read into e(idence bein+ not le+ally pro(ed
can hold +round especially in (ie) of the chan+in+ stand of &tate
before this court and before /onHble /i+h ourt of 'elhi.
(i. 8astly )hether the in(esti+atin+ a+ency or the prosecutin+ a+ency
)ere not under a duty to place before this court the entire
circu%stances under )hich the said co%%unications )ere %ade or
in other )ords )hat could be the reasons for the in(esti+atin+
a+ency and the prosecutin+ a+ency to )ithhold the said docu%ents
fro% the trial courtO
164. 7eepin+ in (ie) the o(erall facts and circu%stances of the
case and the e(idence led by the prosecution and the accused persons the
ans)er to the aforesaid =uestions in %y considered (ie) can be only as
under"
i. ,s re+ard the necessity for %a-in+ such co%%unications by the
senior officers of the police to different hi+her authorities or %a-in+
of such a state%ent in the 8o- &abha by &h. 8. 7. ,d(ani5 the sa%e
does not re=uire any len+thly discussion as on the day of her death
&%t. !hoolan 'e(i )as a sittin+ %e%ber of !arlia%ent and
ad%ittedly !arlia%ent )as in &ession on that day. 4he fact that a
sittin+ %e%ber of !arlia%ent +ot %urdered in the heart of 'elhi
shoc-ed the conscience of entire 2ation leadin+ to outra+e a%on+st
the %e%bers of !arlia%ent. 4hus senior officers of police %ade
i%%ediate co%%unication to the hi+her authorities infor%in+ about
the circu%stances in )hich the %urder too- place as is also e(ident
fro% the state%ent %ade by &h. 8. 7. ,d(ani in the 8o- &abha on
25.07.2001. ,s per the record of the proceedin+s dated 25.07.2001
of 8o- &abha5 &h. ,d(ani stated that he had a tal- )ith
o%%issioner of 'elhi !olice )ho hi%self )as present at .$8
hospital )here &%t. !hoolan 'e(i and t. Balender )ere ta-en after
the incident and he infor%ed hi% that 3 %as-ed assailants had
carried out the attac-.
ii. ,s re+ard the basis of the co%%unication %ade by the senior
officers of police the sa%e could either be the infor%ation supplied to
the% by the in(esti+atin+ officers )ho reached the place of incident
soon after the incident too- place and %ade in=uiries o(er there or in
the alternati(e the personal infor%ation +athered by these senior
police officers the%sel(es by reachin+ at the spot and %a-in+
in=uiries o(er there. 3nfact &h. &uresh .oy5 the then <oint
o%%issioner of !olice5 'elhi .an+e )hen eBa%ined as a ourt
)itness stated that on the day of incident i.e. on 25.07.01 upon
recei(in+ infor%ation about the incident he had +one initially to the
place of incident i.e. 445 ,sho-a .oad and thereafter to .$8 hospital
)here the in*ured )ere ta-en. ;ro% the hospital he had +one to
!andit !ant $ar+ )here ar 2o. 3$1907 )as found lyin+
abandoned. /e further stated that he hi%self had seen place of
incidence as )ell as the place )here ar in =uestion )as found lyin+
abandoned and thereafter he %ade oral co%%unication initially to
the then o%%issioner of !olice &h. ,*ay .a* &har%a on telephone
and thereafter on the directions of o%%issioner of !olice %ade
)ritten co%%unications to &h. !.7. <alali5 <oint &ecretary5 $inistry
of /o%e5 :o(ern%ent of 3ndia and to &h. :.. $alhotra5 &ecretary
:eneral 8o- &abha beside issuin+ a !ress .elease. /e further
stated that as a lar+e nu%ber of public persons had +athered around
the ar as )ell as at 44 ,sho-a .oad and )ere sayin+ that probably
the assailants )ere %as-ed so he too infor%ed o%%issioner of
!olice that probably the assailants )ere %as-ed. /e further stated
that under this belief only he %entioned in the )ritten
co%%unications as )ell as in the !ress .elease that the assailants
)ere %as-ed. /o)e(er in response to certain =uestions put by the
ourt he further stated that before sendin+ the said co%%unications
@B. 0 5/,5 0 5/B and 0 5/ >!ress release?5 he had no tal-s or
discussion either )ith 3# 3nsp. :.8. $ehta or 3nsp. &uresh 7aushi-.
/e further stated that thou+h he had recei(ed a copy of the ;3. after
its re+istration but only +a(e a cursory loo- to it as by that ti%e the
in(esti+ation of the case )as already transferred to ri%e Branch.
/e further stated that the copy of the said !ress .elease sent by
hi% )as also handed o(er to ri%e Branch #fficers on their re=uest
on 25.07.01 itself. /e further stated that despite co%in+ to -no) of
the actual facts that the assailants )ere not %as-ed on 25.07.01
itself he did not issue either any correction note in respect of the said
co%%unications earlier %ade by hi% or any fresh !ress .elease.
iii. ,s re+ard the basis on )hich &h. 8. 7. ,d(ani %ust ha(e %ade the
state%ent in the 8o- &abha on 25.07.01 as discussed abo(e finds
%ention in the proceedin+s of the 8o- &abha itself. /e said that he
had personally tal-ed to5 the then5 o%%issioner of !olice )ho )as
present at the hospital. ,part fro% this the other basis of infor%ation
could be the co%%unication sent by the senior officers of police as
%entioned abo(e on 25.07.2001 itself. /o)e(er as re+ard the
state%ent %ade by &h. 8. 7. ,d(ani on 31.07.2001 3 %ay state that
fro% a perusal of the said state%ent as has been recorded in the
proceedin+s of 8o- &abha of that day it is clearly apparent that he
reiterated the in(esti+ation )hich )as carried out till that day in the
present %atter. 3t thus does not re=uire any far1fetched ar+u%ent to
conclude that the said infor%ation could ha(e been possible only
)hen the in(esti+atin+ a+ency %ust ha(e disclosed those facts to
&h. 8. 7. ,d(ani either personally or throu+h so%e other
co%%unication %ade to his office.
K*estion 4o. 2iv3 2v3 and 2vi3 are being taken together being
interconnected.
2o) co%es the %ost i%portant aspect of ad%issibility of the
said co%%unication. 4he said issue in %y considered opinion has to be
considered under different pro(isions of @(idence ,ct.
&ection 5 of the @(idence ,ct says that e(idence %ay be
+i(en of all facts in issue and rele(ant facts. &ection 6 thereafter tal-s of
rele(ancy of facts for%in+ part of sa%e transaction.
,d%ittedly the said co%%unications )ere %ade by the senior
officers of police )ithin fe) hours of incident on 25.07.2001 itself. 3n fact
&h. 8. 7. ,d(ani %ade a state%ent in the 8o- &abha at 1500 hours i.e.
)ithin 1 T hour of the incident. $oreo(er he stated that he )as infor%ed
about all such facts by the o%%issioner of !olice )ho )as present at the
hospital. &h. &uresh .oy has also stated that after reachin+ the spot
initially he )ent to hospital. ;ro% the hospital he ca%e to !andit !ant $ar+
)here ar 2o. 3$1907 )as found lyin+ abandoned. 4hus )hether he
briefed o%%issioner of !olice on the basis of his o)n obser(ation of the
spot and that of the car or on the basis of en=uiries %ade by hi% fro% the
persons +athered at the spot or fro% the in(esti+atin+ officers5 the fact
re%ains that his co%%unication (erbal or )ritten are rele(ant and thus the
accused persons )ere )ell )ithin their ri+hts to adduce e(idence to this
effect.
$oreo(er section 81 @(idence ,ct says that the court shall
presu%e the +enuineness of e(ery docu%ent )hich purports to be a
pri(ate act of !arlia%ent or all other docu%ents purportin+ to be a
docu%ent directed by any la) to be -ept by any person5 if such docu%ent
is -ept substantially in the for% re=uired by la) and is produced fro%
proper custody. 4hou+h one %ay ar+ue that section 81 %ay not ha(e
strai+ht application to the proceedin+s so produced by the accused
persons after ha(in+ been obtained under .43 but once a+ain 3 %ay
reiterate that )hile considerin+ the reliance and ad%issibility of these
docu%ents the conduct of in(esti+atin+ a+ency and prosecutin+ a+ency
has to be also -ept in %ind. 4he accused persons ha(e been re=uestin+
ri+ht throu+h the trial to su%%on the said )itnesses )ho )ere the authors
of said co%%unication and to also produce the said docu%ents. /o)e(er
as is e(ident fro% the proceedin+s %entioned abo(e not only the
in(esti+atin+ a+ency ensured that no such fact could co%e on record
durin+ the course of in(esti+ation or to e(en eBplain the circu%stances in
)hich the said co%%unications )ere %ade but e(en the prosecutin+
a+ency continued to oppose the su%%onin+ of said )itnesses or
producin+ of the said docu%ents. 3n fact the prosecutin+ a+ency continued
to chan+e its stand before different courts of la) in this re+ard. 0hile
before /onHble /i+h ourt of 'elhi it )as stated by 8d. ,!! that the
eBistence of these docu%ents is not disputed but before the trial court it
)as ar+ued that these docu%ents cannot be read as they ha(e not been
pro(ed in accordance )ith la). 3n these circu%stances one cannot be
obli(ious of the situation of the accused persons. #n the one hand their
re=uest to su%%on these )itnesses )as bein+ opposed by the &tate and
on the other hand &tate )as not forth co%in+ in its proceedin+s and )as
not ready to place on record all such co%%unication and to eBplain under
)hat circu%stances the sa%e )ere %ade. 'espite specific =ueries by this
court durin+ the course of final ar+u%ents no plausible eBplanation in this
re+ard ca%e forth. 4hus the prosecution cannot be allo)ed to blo) both
hot and cold at the sa%e ti%e i.e. to first )ithhold certain docu%ents fro%
the court as they )ere not fa(ourable to its case or in other )ords )ere
fa(ourable to accused persons and on the other hand to ar+ue that those
docu%ents )hen sou+ht to be placed on record by the accused persons
cannot be read into e(idence bein+ not pro(ed as per la). 3t is for this
reason that at the be+innin+ of the *ud+%ent 3 stated that )hen either the
prosecution chooses to )ithhold certain facts and circu%stances )hich
%ay not fa(our its case or )hich %ay be fa(ourable to the accused
persons or the defence co%e up )ith false plea of defence that the duty of
the ourt increases %anifold in carefully scrutiniAin+ the entire e(idence at
the threshold of rule of la).
3n (ie) of %y aforesaid discussion 3 a% thus of the considered
opinion that since these co%%unications )ere %ade by the senior officers
of the police the%sel(es so the in(esti+atin+ a+ency cannot )ash a)ay its
hand )ithout eBplainin+ anythin+ about these co%%unications. 4he said
co%%unications are i%portant fro% another point of (ie) also beside the
fact that the assailants )ere stated to be %as-ed. 3n both the
co%%unications %ade by &h. &uresh .oy or the state%ents %ade by &h.
8. 7. ,d(ani there is no %ention of reco(ery of t)o %on-ey caps fro% car
no. 3$19075 e(en thou+h all other articles (iA. re(ol(ers and cartrid+es so
reco(ered finds %ention. 4his fact also thro) doubts as to the correctness
of the in(esti+ation carried out in the present %atter or )hether the said
%on-ey caps )ere subse=uently planted in the car. &h. &ureshy .oy
si%ply stated that he for+ot to %ention about the %on-ey caps lyin+ in the
car. 4his eBplanation does not re=uire any discussion to be brushed aside
as the sa%e is per se not belie(able and %ore so -eepin+ in (ie) the
sensiti(e nature of %atter it )as and the senior le(el of the officer %a-in+
the co%%unication.
&ince these docu%ents )ere supplied to the accused persons
in response to .43 application by the concerned depart%ents fro% the
record bein+ %aintained in the nor%al course of their business so the
copies of the docu%ents carryin+ sta%ps of the concerned officers can be
safely treated as certified copies thereof and thus ad%issible in la). 3n fact
the authenticity or the correctness of the copies other)ise has also not
been disputed by the prosecutin+ a+ency at any point of ti%e and &h.
&uresh .oy has also ad%itted ha(in+ sent the said co%%unications.
I% <#e1 o" +2 a"o)esa#- -#s'0ss#o% #! #s !(0s ')2s!a$ '$ea)
!(a! !(e '$a#+ o" B)ose'0!#o% !(a! !(e !1o assa#$a%!s o) !(e -)#<e) o"
Ca) No. CI?-0, 1e)e %o! 1ea)#%& +as;s a! !(e !#+e o" #%'#-e%! #s %o!
'o))e'!. I%"a'! #! #s %o! o%$2 !(a! !(e)e a)e -o0A!s aAo0! !(e
'o))e'!%ess o" !(#s '$a#+ o" B)ose'0!#o% A0! ")o+ !(e o<e)a$$
'#)'0+s!a%'es #! #s '$ea) Ae2o%- -o0A! !(a! !(e !1o assa#$a%!s a%-
!(e -)#<e) o" Ca) No. CI?-0, 1e)e 1ea)#%& +as;s a! !(e !#+e o"
#%'#-e%!. I%"a'! !(e -eBos#!#o% o" PW-.2 @a$# C(a)a%, PW-104 ?0%%#
De<# o) PW-12 9#%o- 9#s(1a%a!( a$so s0BBo)!s !(e a"o)esa#-
'o%'$0s#o%. >I shall be disc*ssing the de)osition o these witnesses at a
slightl% later stage while disc*ssing the case o )rosec*tion G*a acc*sed
Sher Singh #ana.3
A&a#%s! a''0se- D(a% Pa);as(
P)#o) a'>0a#%!a%'e 1#!( S(e) S#%&( Ra%a o) o!(e) a''0se- Be)so%s.
165. ,s re+ards the prior %eetin+ )ith accused &her &in+h .ana
to discuss the details of the conspiracy or his prior ac=uaintance )ith
accused &her &in+h .ana5 3 ha(e already discussed =ua the deposition of
!0162 !an-a* 7alra that he did not support the case of the prosecution on
this account and there is no other e(idence led on record by the
prosecution to pro(e the fact of any such prior %eetin+. ;urther %ore his
prior ac=uaintance )ith accused &her &in+h .ana can also not a%ount to
any incri%inatin+ circu%stance.
166. ,s re+ard his tra(ellin+ )ith accused &he-har &in+h and
.a*bir &in+h in )hite $aruti ar fro% .oor-ee to 'elhi on the %ornin+ of
25.07.01 and bein+ in constant touch )ith accused &her &in+h .ana
throu+h %obile phone has also been already discussed by %e )hile
discussin+ the case =ua accused .a*bir &in+h. 4he said fact could not be
pro(ed by the prosecution as the call details bein+ relied upon by the
prosecution are clearly not ad%issible in e(idence in the absence of
ertificate u/s 65 B 3ndian @(idence ,ct5 1872.
167. !01118 2aresh5 the o)ner of $ohan :ara+e has also not
supported the case of prosecution as he stated that he did not see any of
the occupants of such a ar ha(in+ co%e to his )or-shop to +et it repaired
on the %ornin+ of 25.07.01.
168. ,part fro% the aforesaid circu%stances the prosecution has
infact also failed to lin- the use of said )hite $aruti ar 2o. 6!114B175595
)ith the present conspiracy. 2&he disc*ssion in this regard made while
considering the case o )rosec*tion G*a the case o acc*sed #a+bir ma%
be reerred to3.
P(o!o TIP A2 PW-,3, C!. Ba$e%-e)
169. ,s re+ard the fact that t. Balender had seen hi% )hen he
fired to)ards hi%5 the said clai% of t. Balender is certainly not correct in
(ie) of the conclusion dra)n by %e earlier that the assailants )ere
)earin+ %as- at the ti%e of incident. 3t )as thus also not possible for t.
Balender to identify the said assailant fro% his photo+raph subse=uently if5
at the ti%e of incident the assailants had co(ered their face )ith %as-.
P(o!o TIP A2 PW-114 Ba(a-0) S(a(.
170. 0ith re+ard to identification of 'han !ar-ash by Bahadur
&hah the 4&. dri(er5 deposition of !0 1145 Bahadur &hah is (ery
i%portant be be seen.
171. /e stated that on that day after droppin+ a passen+er at
onnau+ht !lace he )as +oin+ to)ards :ole 'a- 7hana loo-in+ for so%e
passen+er and thereafter )hen he )as %o(in+ on !andit !ant $ar+
to)ards entral &ecretariat then at about 1.30 !$ one passen+er si+naled
hi% to stop. /e further stated that the said passen+er told hi% that he
intends to +o to 2ehru !lace but )hen he )as still tal-in+ to the said
passen+er then suddenly three boys ca%e runnin+ fro% behind and
boarded his 4&.. /e as-ed the% as to )here they ha(e to +o and as they
)ere in a hurry so they si%ply as-ed hi% to *ust dri(e the 4&. and they
e(en patted on his nec- by their hand and as-ed hi% to dri(e fast. /e
further stated that )hen he )as dri(in+ to)ards 7rishi Bha)an (ia
!arlia%ent /ouse as told by the boys then at 7rishi Bha)an one of the%
ali+hted as soon as his 4&. slo)ed do)n due to traffic on the round about.
;ro% 7rishi Bha)an he started %o(in+ to)ards ,sho-a .oad and fro%
,sho-a .oad he )ent to)ards 3ndia :ate and then to)ards 4ila- $ar+.
/o)e(er )hen he reached near red li+ht Bha+)an 'ass road then the
other t)o boys also ali+hted fro% the 4&. and boarded a bus )ithout
payin+ fare to hi%.
172. 3n his deposition in the ourt he thou+h initially stated that
)hen police subse=uently sho)ed hi% so%e photo+raphs then he failed
to identify any of the% fro% the photo+raphs but )as thereafter cross1
eBa%ined by 8d. &pecial !! at len+th. 3n his cross1eBa%ination he
ho)e(er turned around and stated that he had identified those boys fro%
the photo+raphs before the police and put his thu%b i%pression upon the
re(erse of the said photo+raphs.
173. ;ro% the aforesaid proceedin+s )herein he alle+edly
identified the said boys fro% the photo+raphs5 an i%portant =uestion )hich
arises for consideration is )hether this )itness )as at all in a position to
ha(e seen those boys properly at so%e point of ti%e so as to later on
identify the% fro% their photo+raphs.
174. , careful perusal of his deposition sho)s that there )as no
occasion for hi% to see the said three persons properly. /e stated that
)hen he )as tal-in+ to a passen+er then the said three persons boarded
his 4&. fro% behind and as-ed hi% to %o(e fast. /e further stated that
they patted his nec- )ith their hand as-in+ hi% to %o(e fast. 4hus at that
ti%e Bahadur &hah %ust be sittin+ on the dri(er seat and %ust be loo-in+
to)ards front direction )hile the said three boys )ere sittin+ on the rear
seat. ,t near 7rishi Bha)an one of the said boys +ot do)n fro% the 4&.
)hile the 4&. )as still %o(in+ and thereafter at near Bha+)an 'ass .oad
the t)o other boys also +ot do)n and boarded a bus )ithout payin+ fare to
hi%.
175. 3t is thus hi+hly i%probable that Bahadur &hah could ha(e
seen any of the said three boys properly )ho sat in his 4&. fro% behind
and +ot do)n on the )ay. 4hus irrespecti(e of the proceedin+s that too-
place subse=uently at the police station re+ardin+ photo 43! )herein he
)as sho)n so%e photo+raphs by the police to identify the said three boys
)ho sat in his 4&.5 it is crystal clear that identification by hi% is not free
fro% doubts and doubts )hich are beyond reasonable doubts.
176. ,t this sta+e 3 )ould also li-e to %ention the proceedin+s in
)hich the police clai%ed to ha(e located the 4&. dri(er Bahadur &hah on
the %ornin+ of 26.07.01 itself. !01168 &3 $ano* 7u%ar )ho )as told to
locate 4&. 2o. '8 1 .; 0235 on the %ornin+ of 26.07.2001 at 9 ,$
clai%ed to ha(e traced the said 4&. on 26.07.2001 itself fro% a 4&. stand
)hich happened to be *ust 1 T 1 2 7$ a)ay fro% his office i.e. office of
ri%e Branch at .. 7. !ura%.
177. 3t )ill be )orth)hile to reproduce the rele(ant portion of the
deposition of this )itness in this re+ard.
C#n 25.07.2001 3 ca%e bac- fro% <alandhar5 !un*ab to
'elhi fro% the in(esti+ation of one case o(er there. #n
that day 3 reported to %y office ..7. !ura% at about 10
!$ re+ardin+ co%in+ bac- to 'elhi fro% <alandhar
!un*ab. 3 %et to &h. /.!.&. hee%a5 ,! in the office of
..7. !ura% and then he disclosed us that &%t. &%t.
!hoolan 'e(i )as %urdered and the in(esti+ation )as
entrusted to 3nsp. &uresh 7aushi- by hi% and 3 )as
directed to reach office neBt day early in the %ornin+. &o 3
left for %y house fro% the office.
#n 26.07.2001 3 reached %y office at about 9 ,$ and %et
3nsp. &uresh 7aushi- and he briefed %e re+ardin+ the
%urder of &%t. &%t. !hoolan 'e(i. 3nsp. &uresh 7aushi-
also told %e that he ca%e to -no) fro% one 9inod 7u%ar
that after co%%ittin+ the %urder of &%t. &%t. !hoolan
'e(i the assailants had run a)ay in one 4&. of 2:
bearin+ its re+istration 2o. '811.;10235. 3 )as directed
by the 3nsp. &uresh 7aushi- to search the o)ner and
dri(er of the said 4&. and produced the% in the office
before hi%. 3 search the o)ner of said 4&. fro% 4raffic
control .oo% fro% )here 3 ca%e to -no) the o)ner na%e
as Bhi% :hosh5 ./o 4855 3ndira olony5 9i*ay :hat5 2e)
'elhi so 3 )ent there and the o)ner Bhi% :hosh %et %e
at the said address. Bhi% :hosh told %e that his 4&. is
of patrol not of 2: and he has already +i(en the said
4&. on rent to so%e one. 3 )ent to Burari transport
authority because it has co%e to %y -no)led+e that 2:
scooter used to be re+istered there at 9i*ay :hat itself so 3
)ent there. ;ro% the office of the Burari on %a-in+
en=uiry 3 ca%e to -no) that the 4&. of 2: re+istered as
'811.;10235 )as re+istered there in the na%e of
.a%esh)ar &har%a >!028?5 ./o 18/127,5 8a)rance
.oad5 2e) 'elhi. 4hereafter 3 )ent to the house of
.a%esh)ar &har%a at 8a)rance .oad. .a%esh)ar %et
%e there and he infor%ed %e that the said scooter )as
financed by hi% and the per%it of said 4&. is in the na%e
of .a% $ahade( Dada( >!0 27?5 ./o $andir 0ali :ali5
&hadi !ur5 7anpur5 2e) 'elhi. .a%esh)ar &har%a also
told %e that the said scooter )as +i(en by .a% $ahade(
Dada( on rent to one Bahadur &hah >!0 114?5 r/o @1385
'hapo olony5 ..7. !ura%5 &ector 25 2e) 'elhi.
4hereafter )e )ent to 'hapo olony5 ..7. !ura%5 )here
Bahadur &hah %et %e near his *u++i. ,+ain said 3 ca%e to
-no) that he *ust has +one to 4&. stand of sector 2 )ith
his 4&. so )e )ent there. 4hereafter Bahadur &hah
alon+)ith his said 4&. produced before 3nsp. &uresh
7aushi- on the sa%e day i.e. 26.07.2001 in our office of
..7. !ura%5 2e) 'elhi.F
178. 3n his cross1eBa%ination this )itness ho)e(er stated that to
none of the persons fro% )ho% he collected infor%ation about the
o)ner/dri(er of 4&. in =uestion includin+ at the office of 4ransport
,uthority at Burari he ser(ed any notice see-in+ such infor%ation in
)ritin+. ,part fro% such perfunctory nature of in(esti+ation he stated that
he left the office on the %ornin+ of 26.07.2001 )ithin half an hour of
reachin+ the office. 4hus he %ust ha(e left the office by 9"30 ,$ as he
stated that on the %ornin+ of 26.07.2001 he reached the office at 9 ,$. /e
further stated that before bein+ able to locate Bahadur &hah at .. 7.
!ura% 4&. stand he tra(elled fro% .. 7.!ura% to 4een $urti5 4raffic
#ffice5 hana-yapuri and fro% there to 3ndira olony )hich )as about 151
20 -% a)ay to %eet one Bhi% :hosh. 4herafter he )ent to Burari
4ransport ,uthority )hich )as a+ain about 10115 -% a)ay and fro% there
he )ent to 8a)rance .oad )hich too- about 15 to 20 %inutes on his bullet
$otorcycle. ;ro% there after %a-in+ en=uiries fro% .a%esh)ar &har%a
he )ent to %eet .a% $ahade( Dada( )hose house )as situated about
20122 -% fro% 8a)rance .oad. 4hereafter he )ent to the house of
Bahadur &hah and then to the 4&. stand )here he found Bahadur &hah
)ith his 4&. no. '811.;10235.
179. 4his clai% of !0 168 &h. $ano* 7u%ar )hen seen and
analysed (is1a1(is the deposition of !0 114 Bahadur &hah clearly sho)s
that either of the t)o is not a truthful )itness.
180. !0 114 Bahadur &hah in his cross1eBa%ination stated that
)hen he reached the 4&. stand .. 7. !ura% on the %ornin+ of
26.07.2001 at about 9 or 10 ,$ then &3 $ano* 7u%ar of sector 45 .. 7.
!ura% ca%e and %et hi%.
181. 4hus if the deposition of &3 $ano* 7u%ar re+ardin+ the
%anner in )hich he disco(ered and %et Bahadur &hah after %a-in+
eBtensi(e en=uiries fro% different persons is belie(ed then he could not
ha(e reached ,uto &tand .. 7. !ura% before 213 !$ on 26.07.2001. /e
thus could not ha(e %et Bahadur &hah on the %ornin+ of 26.07.2001 at
the 4&. stand5 .. 7. !ura% at about 9/10 ,$. ,lternati(ely !0 114
Bahadur &hah is not a truthful )itness in this re+ard.
182. 3nfact Bahadur &hah )as also not ha(in+ any bad+e )hich is
allotted to a 4&. dri(er and the 4&. in =uestion also did not belon+ to hi%.
4here )as thus nothin+ on record to sho) that he )as actually a 4&.
dri(er %uch less that of 4&. no. '811.;10235 at the ti%e )hen the three
assailants alle+edly boarded the said 4&..
183. #nce a+ain5 the fact that Bahadur &hah5 the dri(er of the 4&.
in )hich the assailants fled a)ay soon after the incident happened to be
residin+ near the office of ri%e Branch at .. 7. !ura% only appears to be
%ore then a co1incidence in the o(erall facts and circu%stances of the
case and in (ie) of the apparent conflictin+ nature of their deposition as
discussed abo(e.
184. 4hus in (ie) of the aforesaid facts and circu%stances not
%uch reliance can be placed upon identification of accused 'han !ar-ash
or for that %atter of any of the other accused persons by !0 114 Bahadur
&hah.
D#s'$os0)e s!a!e+e%! A2 a''0se- D(a% Pa);as(
185. learly any disclosure state%ent %ade by an accused )hile
bein+ in the custody of police is inad%issible in e(idence bein+ hit by &. 25
@(idence ,ct unless any fact or thin+ is disco(ered pursuant to the said
disclosure state%ent. ,+ain this is not the prosecution case that anythin+
)as reco(ered or disco(ered pursuant to the disclosure state%ent of
accused 'han !ar-ash. 4he disclosure state%ent is accordin+ly
inad%issible in e(idence.
C(a%'e "#%&e) B)#%!s )e'o<e)e- ")o+ )e<o$<e) $aAe$$e- F?ADE IN
INLENDG.
186. ,part fro% the aforesaid circu%stances the only piece of
incri%inatin+ e(idence )hich e%er+es out fro% the prosecution case
a+ainst accused 'han !ar-ash is his three fin+er print i%pressions upon
one of the )eapon of offence i.e. on one re(ol(er out of the t)o reco(ered
fro% the rear seat of car no. 3$1907.
187. #rdinarily such fact )ould ha(e a%ounted to a clinchin+
piece of e(idence in fa(our of the prosecution to pro(e the +uilt of the
accused or to shift the burden upon the accused to eBplain under )hat
circu%stances his fin+er i%pressions ca%e to be found on one of the t)o
)eapon of offence. ertainly accused 'han !ar-ash ou+ht to ha(e
eBplained u/s 106 @(idence ,ct about this aspect but in %y considered
opinion any failure on his part to eBplain the sa%e cannot %a-e this
circu%stance to be sufficient in itself to conclude that he )as one of the
t)o assailants )ho fired at t. Balender.
188. ,part fro% the doubtful nature of in(esti+ation as has been
discussed by %e at different sta+es of %y present *ud+%ent =ua (arious
circu%stances the testi%ony of !0 129 9inod 9ish)anathan +ains
%aterial i%portance in this re+ard. 4his )itness has been eBa%ined by the
prosecution as a chance )itness of the scene of occurrence. /e alle+edly
chased the %aruti car in )hich the three assailants fled a)ay fro% the spot
and had e(en seen the% lea(in+ their car at !andit !ant $ar+ and
boardin+ a 4&.. /e thereafter )ent and infor%ed ,&3 &ri 7rishan of 4raffic
!olice and ,&3 &atish <oshi of !& $andir $ar+ )ho )ere present near
:ole 'a- 7hana about the incident and the assailants ha(in+ left car no.
3$1907 at !andit !ant $ar+. /e further stated that )hen the t)o police
officials reached near the car then one of the% upon chec-in+ the car and
on seein+ a re(ol(er lyin+ there5 pic-ed it up but on the as-in+ of the other
police official -ept it bac-. ,&3 &ri 7rishan ho)e(er (ehe%ently denied this
fact in his deposition and rather stated that till the ti%e ;&8 eBperts ca%e
no one pic-ed up the said re(ol(er lyin+ on the seat. 4his fact a+ain create
doubts as re+ard the clai% of prosecution that till the ti%e ;&8 eBperts
eBa%ined the re(ol(ers no one had touched the%. $oreo(er as earlier
discussed the ite%s )hich )ere reco(ered fro% the car as )ere %entioned
in the )ritten co%%unications %ade by &h. &uresh .oy did not contain
any reference of t)o %on-ey caps )hich as per the char+e1sheet )ere
also lyin+ alon+)ith the re(ol(ers.
189. 6ndoubtedly5 the %ere non1%entionin+ of the t)o %on-ey
caps cannot lead to a conclusion )hereby to doubt e(en the reco(ery of
t)o re(ol(ers fro% the car but it does +oes to sho) that the in(esti+ation
as has been no) presented in the char+e sheet )as in fact not carried out
in the %anner as is bein+ pro*ected to ha(e been carried out.
190. 3n (ie) of %y aforesaid discussion the non1furnishin+ of any
eBplanation by accused 'han !ar-ash u/s 106 @(idence ,ct as to under
)hat circu%stances his chance prints ca%e to be there on one of the t)o
)eapons of offence ceases to ha(e any rele(ance. 4he solitary
circu%stance e(en if presu%ed to be pro(ed by the prosecution for the
sa-e of ar+u%ents cannot e(en other)ise for% a chain of circu%stantial
e(idence in itself in the absence of any other lin- to the said chain of
circu%stance to lead to the only hypothesis (iA. that of +uilt of accused
'han !ar-ash. 3n other )ords the solitary circu%stance (iA. that fin+er
prints of accused 'han !ar-ash )ere found on one of the t)o )eapons of
offence cannot in itself pro(e the case of prosecution a+ainst hi% beyond
shado)s of all reasonable doubts )hen especially his (ery identification by
the )itnesses is shrouded )ith doubts and there is no other incri%inatin+
circu%stance ha(in+ been pro(ed a+ainst hi% by the prosecution. 2In
these circ*mstances I am not entering into an% anal%sis o the )lea o
deence o acc*sed Dhan Parkash that ater his arrest his inger )rint
im)ressions were )lanted on the revolver.3
191. 4here is yet one other uneBplained circu%stance in the
prosecution case. ,d%ittedly at the as-in+ of ;&8 eBperts $al(iya 2a+ar5
ar 2o. 3$1907 )as dri(en by &3 &an*ee( $andal fro% the spot to the
office of '! 2e) 'elhi. /o)e(er the in(esti+ation is silent as to )hether
the -eys of the ar )ere in the ar itself or not or as to ho) &3 &an*ee(
$andal dro(e the ar. 4here is no %ention of seiAure of any such -eys of
the ar. 4his fact also raises doubts about the (eracity of the contents of
the seiAure %e%o prepared as re+ard the articles reco(ered fro% the ar.
I% <#e1 o" +2 a"o)esa#- -#s'0ss#o%, I a+ !(0s o" !(e
'o%s#-e)e- oB#%#o% !(a! !(e B)ose'0!#o% (as +#se)aA$2 "a#$e- #%
B)o<#%& #!s 'ase a&a#%s! a''0se- D(a% Pa);as( a$so !(a! (e 1as Ba)!
o" a%2 s0'( 'o%sB#)a'2 o) !(a! (e 1as o%e o" !(e !1o assa#$a%!s 1(o
"#)e- a! S+!. P(oo$a% De<# o) a! C!. Ba$e%-e). I! !(0s a$so -oes %o!
s!a%- B)o<e- !(a! (e 1as e<e) #% Bossess#o% o" a%2 a)+ o)
a++0%#!#o% +0'( $ess 0%$#'e%se- a)+. T(e '(a)&e o" 0se o" a%2
s0'( a)+ a$so !(0s -oes %o! (o$- &)o0%-.
Case o" B)ose'0!#o% a&a#%s! a''0se- S(e;(a)
A'>0a#%!a%'e 1#!( S(e) S#%&( Ra%a o) o!(e) a''0se- Be)so%s.
192. ,s already discussed =ua the deposition of !0162 !an-a*
7alra throu+h )ho% prosecution sou+ht to pro(e the factu% of a %eetin+
ha(in+ ta-en place at the house of accused &her &in+h .ana5 he turned
hostile and did not support the case of the prosecution on this score.
,ccordin+ly this circu%stance does not stand pro(ed. &i%ilarly
ac=uaintance of accused &he-har )ith accused &her &in+h .ana fro%
prior to the incident e(en if presu%ed to be there does not a%ount to any
incri%inatin+ circu%stance.
193. ,s re+ard his tra(el fro% .oor-ee to 'elhi alon+)ith accused
'han !ar-ash and .a*bir in )hite $aruti car no. 6!114B17559 the sa%e
also does not stand pro(ed. ,s already %entioned )hile discussin+ the
case of prosecution =ua accused .a*bir and 'han !ar-ash the prosecution
has clearly failed in establishin+ that accused &he-har tra(elled in the said
$aruti car to 'elhi fro% .oor-ee %uch less )ith accused .a*bir or 'han
!ar-ash.
194. 4he factu% of his bein+ in touch )ith &her &in+h .ana
throu+h %obile phone a(ailable )ith .a*bir &in+h also does not stand
pro(ed since the call records or cell 3' chart has already been held to be
inad%issible in e(idence in the absence of certificate u/s 651B @(idence
,ct.
195. !01118 2aresh5 the o)ner of C$ohan $otorsF has also not
supported the case of prosecution as he stated that he did not see any of
the occupants of such a ar ha(in+ co%e to his )or-shop to +et it repaired
on the %ornin+ of 25.07.01.
I-e%!#"#'a!#o% o" PW-,3, C!. Ba$e%-e).
196. ,s re+ards the actual incident of firin+ on &%t. !hoolan 'e(i
and t. Balender5 3 ha(e already obser(ed that the prosecution story that
the three occupants of the ar no. 3$1907 )ere not )earin+ any %as- at
the ti%e of incident is hi+hly doubtful and rather it e%er+es fro% the o(erall
facts and circu%stances that they )ere in fact )earin+ %as-. 3n these
circu%stances his identification by t. Balender see%s to be hi+hly
doubtful and cannot be relied upon.
197. 3nfact the clai% of t. Balender that he had seen accused
&he-har &in+h standin+ outside ar 2o. 3$1907 )hen he alon+)ith &%t.
!hoolan 'e(i returned fro% !arlia%ent also appears to be hi+hly doubtful.
198. ;irstly no person )ho has co%e )ith such a sinister desi+n
)ill stand in this %anner outside the ar so that public %ay see and
identify hi% at a later sta+e. &econdly if the deposition of t. Balender is
seen closely than his deposition in this re+ard clearly appears to be false.
199. ,s per the prosecution case &%t. !hoolan 'e(i and t.
Balender )ere shot soon after they ali+hted fro% the ar of another
$e%ber of !arlia%ent. /e further stated that )hen they )ere in the
process of enterin+ inside their house after openin+ the %ain door then the
shootin+ incident too- place. 4hus the entire incident %ust ha(e ta-en only
fe) %inutes and thus it is hi+hly i%probable that accused &her &in+h .ana
)ho )as to dri(e ar no. 3$1907 so as to facilitate the escape of the
other t)o co1accused persons )ill continue to stand outside the ar. @(en
if it is presu%ed for the sa-e of ar+u%ents that accused &he-har &in+h
)as initially standin+ outside the ar then also the li-ely conduct of such
an accused cannot be o(erloo-ed in the o(erall facts and circu%stances of
the case. , person )ho has co%e )ith t)o other co1accused persons to
carry out such a %urderous attac- )ill i%%ediately +et inside the ar as
soon as their tar+et i.e. &%t. !hoolan 'e(i arri(es at the scene. 4hus
considerin+ all these circu%stances the deposition of t. Balender that he
had seen accused &he-har &in+h standin+ outside the ar does not
appears to be correct. onse=uently identification of accused &he-har
&in+h e(en fro% his photo+raph appears to be hi+hly doubtful.
200. $oreo(er since the three occupants of the ar )ere )earin+
%as- at the ti%e of incident so the prosecution in %y considered opinion
has also clearly failed to pro(e the identity of accused &he-har &in+h as
bein+ one of the three occupants of ar 2o. 3$1907 at the ti%e of
incident.
I-e%!#"#'a!#o% A2 PW-114, Ba(a-0) S(a(.
201. &i%ilarly as re+ards his identification by 4&. dri(er Bahadur
&hah5 the sa%e has also been already discussed by %e in the discussion
pertainin+ to accused 'han !ar-ash that his deposition also does not
inspire confidence and accordin+ly identification by hi% fro% photo+raphs
appears to be hi+hly doubtful.
AAs'o%-a%'e o" a''0se- S(e;(a) S#%&(
202. 4he fact that accused &he-har &in+h )as found to be
abscondin+ alon+)ith other co1accused persons na%ely5 &her &in+h
.ana5 .a*bir &in+h and .a*ender has also been discussed by %e earlier
)hile discussin+ the si%ilar issue =ua the case of accused .a*ender and
.a*bir &in+h and for the sa%e reasons the %ere fact of his abscondin+
e(en if presu%ed to be true does not a%ount to any incri%inatin+
circu%stance. &i%ilarly his subse=uent arrest by &aharanpur police and
reco(ery of )hite $aruti ar at his instance or that of accused .a*bir and
.a*ender is also of no conse=uence as the prosecution has failed to pro(e
that the said %aruti car )as in any %anner used in the present conspiracy.
2M% earlier disc*ssion in this regard made while disc*ssing the case o
)rosec*tion G*a acc*sed #a+bir ma% be reerred to3
D#s'$os0)e s!a!e+e%! A2 a''0se- S(e;(a) S#%&(.
203. 4he alle+ed disclosure state%ent %ade by accused &he-har
is also clearly inad%issible in e(idence bein+ hit by section 25 @(idence
,ct5 for neither any fact nor any thin+ )as reco(ered in conse=uent
thereto.
P)o'0)e+e%! o" +oA#$e B(o%e No. 5113,4507 a%- 5113,4510.
204. #nce a+ain there is no le+ally ad%issible e(idence on record
to pro(e that the said t)o phone nu%bers )ere procured by accused
&he-har &in+h for bein+ used in the present conspiracy %uch less the use
of the said %obile phones ha(in+ been pro(ed in the present conspiracy.
4hus it does not stand pro(ed that &he-har &in+h procured the t)o %obile
phone nu%bers i.e. 9811374806 and 9811374810 for bein+ used in the
present conspiracy.
C(a%'e "#%&e) B)#%!s )e'o<e)e- ")o+ Ca) No. CI?-0,.
205. 4hou+h the in(esti+atin+ a+ency clai%s to ha(e lifted siB
chance fin+er print i%pressions fro% ar 2o. 3$1907. /o)e(er report @B.
!0 148/16, of &3 ,(desh 7u%ar5 the fin+er print eBpert is silent as to
)hether the said siB chance prints lifted fro% ar 2o. 3$1907 tallied )ith
the speci%en fin+er prints of any of the accused %uch less )ith that of
accused &he-har &in+h.
206. 4hou+h 8d. ounsel for accused &he-har &in+h ar+ued that
the police has infact planted the fin+er i%pressions of accused &he-har
&in+h subse=uent to his arrest and in (ie) of the nature of in(esti+ation
)hich is shrouded )ith doubts no reliance be placed on this circu%stance.
207. 3 %ay ho)e(er state that e(en if it is presu%ed for the sa-e of
ar+u%ents that the fin+er prints of accused &he-har )ere found on ar no.
3$1907 then also in the absence of any other incri%inatin+ circu%stance5
the sa%e can not for% such a chain of circu%stance )hich could
conclusi(ely lin- accused &he-har &in+h )ith the offence in =uestion and
especially in (ie) of perfunctory nature of in(esti+ation carried out )ith
respect to ar 2o. 3$1907 as has been discussed at len+th )hile
discussin+ the case of prosecution =ua accused 'han !ar-ash.
208. 4hus in (ie) of %y aforesaid discussion5 3 a% of the
considered opinion that the prosecution has %iserably failed to pro(e any
other incri%inatin+ circu%stance a+ainst accused &he-har &in+h so as to
for% a chain of circu%stance )hich could lead to a hypothesis only
consistent )ith the +uilt of accused.
T(e B)ose'0!#o% (as !(0s '$ea)$2 "a#$e- #% B)o<#%& !(a!
a''0se- S(e;(a) S#%&( 1as #% a%2 +a%%e) #%<o$<e- #% !(e
'o%sB#)a'2 #% >0es!#o% o) !(a! (e 1as !(e -)#<e) o" Ca) No. CI?-0, a!
!(e !#+e o" #%'#-e%! 1(e% !(e !1o assa#$a%!s "$e- #% !(e sa#- Ca) ")o+
!(e sBo!.
Case a&a#%s! a''0se- S(a)1a% @0+a)
209. 4he char+es fra%ed a+ainst accused &har)an 7u%ar are
ho)e(er t)o fold (iA. 4hat of per*ury and falsification of docu%ents of
ourts at /arid)ar and that of /arid)ar <ail by puttin+ his thu%b
i%pression and si+natures i%personatin+ hi%self as &her &in+h .ana and
in the process cheatin+ the court as )ell as *ail authorities at /arid)ar by
)ay of i%personation. 4he char+es ha(e also been fra%ed a+ainst hi%
that he )as a part of the cri%inal conspiracy hatched by accused &her
&in+h .ana to co%%it the %urder of &%t. !hoolan 'e(i.
210. /o)e(er an i%portant aspect of the %atter )hich in %y
considered opinion has not been pro(ed by the prosecution a+ainst
accused &har)an is his -no)led+e of any such conspiracy or ob*ecti(e
sou+ht to be achie(ed by any such conspiracy %uch less he bein+ a part
of any such cri%inal conspiracy.
P)#o) a'>0a#%!a%'e 1#!( S(e) S#%&( Ra%a.
211. ,s re+ard the fact that accused &har)an 7u%ar )as )or-in+
at the li=uor (end of accused &her &in+h .ana the sa%e is sou+ht to be
pro(ed by the prosecution fro% the deposition of !0162 !an-a* 7alra and
!01130 #% !al )ho )as runnin+ a hard)are shop near the li=uor (end of
accused &her &in+h .ana. /o)e(er )hile !0162 !an-a* 7alra as already
discussed clai%ed i+norance in this re+ard but e(en !01130 #% !al also
failed to identify accused &har)an as one of the person )or-in+ at the said
li=uor (end. /o)e(er !0141 ,.7. &har%a5 'y. @Bcise o%%issioner
'ehradun and !0199 &an*ay 7u%ar5 @Bcise 3nspector .oor-ee produced
record pertainin+ to allott%ent of said li=uour (end to !0162 !an-a* 7alra
and also as to )ho all )ere )or-in+ there. 4hus e(en if it is presu%ed that
accused &har)an 7u%ar )as )or-in+ at the said li=uour (end than also
this aspect of prior ac=uaintance can not a%ount to an incri%inatin+
circu%stance in itself.
212. ,s re+ards accused &har(an 7u%ar bein+ a part of the
conspiracy in =uestion5 the prosecution has sou+ht to pro(e it by statin+
that he participated in a %eetin+ held at the house of &her &in+h .ana
prior to the incident )here the details of the conspiracy )ere discussed.
/o)e(er as earlier also %entioned !0162 !an-a* 7alra did not support
the case of prosecution as re+ard any such %eetin+ ha(in+ held at the
house of accused &her &in+h .ana. 4hus the =uestion of accused
&har(an 7u%ar ha(in+ participated in any such %eetin+ does not stand
pro(ed.
213. 3n these circu%stances 3 %ay once a+ain state that the %ere
prior ac=uaintance of accused &har)an 7u%ar )ith accused &her &in+h
.ana e(en if it is presu%ed to be eBistin+ for the sa-e of ar+u%ents does
not a%ount to any incri%inatin+ circu%stance.
I+Be)so%a!#o% A2 S(a)1a% @0+a).
214. 4he i%portant =uestion )hich ho)e(er arises is if accused
&har)an 7u%ar )as not a part to the conspiracy in =uestion so hatched by
accused &her &in+h .ana then )hy he chose to +o inside the *ail
i%personatin+ hi%self as &her &in+h .ana on 18.07.2001 and ca%e out of
the *ail on 26.07.2001 only. 2o doubt this fact stands pro(ed fro% the
deposition of the ,hl%ad of the court of 8d. ,<$ and also by )ay of
deposition of !0 83 &3 /oshiar &in+h and !0185 :an+a .a% !ra*apati.
4he report of hand)ritin+ eBpert and fin+er print eBpert )ho co%pared the
court record and *ail record )ith the hand)ritin+ and fin+er prints of
accused &har)an and &her &in+h .ana also lend support to this
conclusion. 2othin+ %aterial could be e(en elicited in the cross1
eBa%ination of any of the aforesaid )itnesses )hich could belie their
clai%. 4hus it stands pro(ed by co+ent con(incin+ and reliable e(idence
that accused &har)an indeed )ent inside the *ail in an @Bcise ,ct case
)hich )as already pendin+ in the ourt at /arid)ar a+ainst accused &her
&in+h .ana by i%personatin+ hi%self as &her &in+h .ana.
215. /o)e(er in order to better appreciate the case of prosecution
=ua accused &har)an 7u%ar5 the plea of defence ta-en by accused &her
&in+h .ana in this re+ard needs to be seen. /e has stated that his father
&urender &in+h .ana )anted to dispose of the property )hose docu%ents
)ere furnished by hi% in the said @Bcise case in the year 1996 as
docu%ents of surety )hile +ettin+ hi% initially released on bail. /e e(en
eBa%ined '013 &h. /aAi $ehboob a property dealer fro% .oor-ee in this
re+ard )ho stated that &urinder &in+h .ana once approached hi% in order
to sell one of his properties but after seein+ the docu%ents of the property
in =uestion he told &urinder &in+h .ana that as the docu%ents of the
property )ere carryin+ an endorse%ent fro% the court so no sale
transaction can be carried out unless the said endorse%ent is +ot
cancelled. /e further stated that later on he %et accused &her &in+h .ana
and his %other and they both told hi% that they do not intend to sell the
said property. /o)e(er he further stated that after so%e ti%e &urender
&in+h .ana produced the said papers of the property )ith the
endorse%ent in =uestion cancelled and accordin+ly he +ot the said
property sold out.
216. ertainly the )itness of defence is entitled to sa%e )ei+ht as
that of prosecution )itnesses but still )ithout placin+ %uch reliance upon
the aforesaid plea of defence it )ill be )orth)hile to %ention and as earlier
also discussed that one of the initial sureties of accused &her &in+h .ana
in the year 1996 )hen the case )as initially re+istered )as his father
&urender &in+h .ana. ,d%ittedly as per the deposition of !0 138
.a%esh hand ,++ar)al5 the ,d(ocate to )ho%5 &urender &in+h .ana
approached for +ettin+ his surety )ithdra)n5 that &urender &in+h .ana
bein+ a surety )as under a duty to produce the accused )hile see-in+ his
)ithdra)al. /e further stated that at that ti%e one person )as produced as
&her &in+h .ana by &urinder &in+h .ana. 3t is thus clear that the person
so produced by &urinder &in+h .ana as his son &her &in+h .ana %ust be
none else but accused &har)an 7u%ar.
217. 4hus it is crystal clear that if accused &har)an )as %ade to
+o to *ail i%personatin+ as &her &in+h .ana in furtherance of the present
cri%inal conspiracy then his production in the court by &urender &in+h
.ana %ust also be in furtherance of the said cri%inal conspiracy bein+
hatched by accused &her &in+h .ana. 4hus if both &urinder &in+h .ana
and &har)an 7u%ar )ere part of the said conspiracy or e(en a)are of the
ob*ecti(e sou+ht to be achie(ed by the said conspiracy than as earlier also
discussed the role of in(esti+atin+ a+ency has not been free fro% doubts
)hen it )as stated in the char+e1sheet that &urinder &in+h .ana )as not
char+e1sheeted for )ant of sufficient e(idence. ertainly the in(esti+atin+
a+ency is not forth co%in+ as to )hat other nature of e(idence they )ere
loo-in+ for before char+e sheetin+ &urender &in+h .ana as one of the co1
conspirator. 4his fact is eBplainable only in one circu%stance that either
accused &her &in+h .ana )as not a)are that accused &har)an is bein+
produced in the court i%personatin+ as &her &in+h .ana by his father or
&har)an )as not a)are that he )as bein+ produced in pursuance to any
such conspiracy. #nce a+ain in the o(erall facts and circu%stances it does
not stand co+ently pro(ed that &har)an )as either a)are of any such
cri%inal conspiracy bein+ hatched by accused &her &in+h .ana or )as
e(en a)are of the ob*ecti(e )hich )as sou+ht to be achie(ed by (irtue of
the said cri%inal conspiracy %uch less he )as a part of the said cri%inal
conspiracy.
218. 3n the aforesaid circu%stances the offence of cheatin+ by
i%personation or that of per*ury or of falsification of docu%ents of the court
record or the *ail records )hich stood co%%itted either before the courts at
/arid)ar or in the 'istrict *ail5 /arid)ar ha(in+ been not co%%itted in
pursuance to the cri%inal conspiracy in =uestion o(er here cannot be tried
by the courts at 'elhi. @(en other)ise in the absence of the %andatory
co%plaint u/s 195 r.!.. fro% the concerned court or the *ail authorities
the (ery co+niAance of the offence of per*ury by this ourt )as bad in la). 3
a% not enterin+ into a detailed discussion as re+ards the e(idence led by
prosecution =ua the said offences5 lest it %ay pre*udice either the &tate or
accused at a later sta+e if accused &har)an 7u%ar is prosecuted before
the courts at /arid)ar.
219. ,s a %ar- of caution 3 %ay also %ention that 3 a% not dra)in+
any conclusion a+ainst prosecution or in fa(our of accused &har)an
7u%ar si%ply because &urinder &in+h .ana has not been arrested in the
present case. 4his fact is bein+ %entioned only to hi+hli+ht and dra) the
conclusion that &har)an 7u%ar did not +o inside the *ail in pursuance to
the present conspiracy. 3n other )ords it can be safely concluded that the
circu%stances )hich ha(e been placed and pro(ed on record by the
prosecution a+ainst accused &har)an 7u%ar are not consistent or
eBplainable only on one sin+le hypothesis of +uilt of accused or in other
)ords are not inconsistent )ith the innocence of accused =ua the cri%inal
conspiracy in =uestion o(er here.
220. 3n (ie) of %y aforesaid discussion the prosecution has thus
clearly failed to pro(e its case a+ainst accused &har)an that either he )as
a part of the cri%inal conspiracy so hatched by accused &her &in+h .ana
or that he )as e(en a)are of the ob*ecti(e sou+ht to be achie(ed by the
said cri%inal conspiracy.
T(e B)ose'0!#o% (as !(0s "a#$e- !o B)o<e #!s 'ase a&a#%s! a''0se-
S(a)1a% @0+a).
A&a#%s! a''0se- S(e) S#%&( Ra%a
221. ,ccused &her &in+h .ana has been pro*ected as the %ain
conspirator )ho o(er a period of fe) years prior to the %urder of &%t.
!hoolan 'e(i )as in the process of hatchin+ the i%pu+ned conspiracy and
it )as pri%arily hi% )ho had roped in all the other co1accused persons. 3
shall be no) discussin+ the e(idence led by the prosecution (is1a1(is the
circu%stances as earlier %entioned (ide )hich the prosecution see-s to
pro(e its case a+ainst hi%.
?o!#<e
222. 4he pri%e %oti(e on account of )hich accused &her &in+h
.ana alle+edly hatched the present conspiracy is stated to be the fact that
he belon+ed to C4ha-urF co%%unity and )as enra+ed )ith &%t. !hoolan
'e(i on account of the brutal %asscare of about 22 4ha-urs in the fa%ous
CBeh%ai -illin+sF. /e not only )anted to a(en+e the said -illin+ of 4ha-urs
by &%t. !hoolan 'e(i but bein+ an a%bitious person ri+ht fro% his school
days also )anted to earn %oney and fa%e by so%e short cut %ethod. /e
thus )anted to beco%e leader of the 4ha-ur o%%unity and thereby
intended to enter politics by -illin+ &%t. !hoolan 'e(i.
223. ,s re+ard the fact that &%t. !hoolan 'e(i -illed about 22
4ha-urs in the CBeh%ai -illin+F5 the correctness or (eracity of the said
incident or the reasons )hich pro%pted &%t. !hoolan 'e(i to -ill so %any
4ha-urs need not be +one into o(er here eBcept that it )as in public
-no)led+e that &%t. !hoolan 'e(i shot to fa%e after she undertoo- the
said -illin+s of 4ha-urs at CBhe%ai5 6!F.
224. ,s re+ard the fact that accused &her &in+h .ana )as an
a%bitious person the prosecution has sou+ht to pro(e the said fact fro%
the deposition of !013 7o(id Batra5 !0122 <a(ed 7han5 !0130 .a*a
7u%ar and !0162 !an-a* 7alra. 4hey all used to study )ith &her &in+h
.ana either in school or in colle+e. !013 7o(id Batra stated that &her
&in+h .ana )as not only elected as a head1boy in the school but also
contested election of :eneral &ecretary of the student union in the colle+e
thou+h he lost o(er there. 3t )as also stated by these )itnesses that
durin+ those days &her &in+h .ana spent fe) lacs on his election
ca%pai+n and )as the first to +et coloured posters printed in the colle+e
students union election. 4hou+h &her &in+h .ana has denied spendin+
such a hu+e a%ount in his election ca%pai+n or e(en +ettin+ coloured
posters printed but has ad%itted that he )as elected as a head boy of the
school and that he also contested election of the student union in the
colle+e. 8d. &pecial !! also tried to put certain su++estions to the
)itnesses that &her &in+h .ana )as an a%bitious person and )anted to
establish hi%self in politics but the )itnesses did not ad%it that &her &in+h
.ana )anted to enter politics. !01140 ,d(ocate .a*esh .asto+i also
denied a su++estion put to hi% by 8d. &pecial !! in this re+ard.
225. /o)e(er in %y considered (ie) %ere contestin+ of elections
in the school or colle+e union or a person statin+ that he intends to *oin
politics can not a%ount to an incri%inatin+ circu%stance. @(ery person has
a ri+ht to choose his career and e(eryone intends to do )ell in his life %ay
be by *oinin+ so%e +ood +o(ern%ent ser(ice or a ser(ice in pri(ate sector
or by e(en *oinin+ politics. 4hese ar+u%ents in %y considered opinion are
too far1fetched to conclude that because of this a%bitious nature he
co%%itted %urder of &%t. !hoolan 'e(i. &i%ilarly to state that accused
&her &in+h .ana bein+ a 4ha-ur )anted to a(en+e the -illin+ of 4ha-urs
by &%t. !hoolan 'e(i or thereby )anted to establish hi%self as a leader of
the 4ha-ur o%%unity and in the process earnin+ na%e5 fa%e and %oney
by a short cut %ethod )ill be a conclusion purely based on con*ectures
and sur%ises )hich is not per%itted under the la).
226. 3nfact all these facts )hich ca%e to the -no)led+e of police
only throu+h the alle+ed disclosure state%ent of accused &her &in+h .ana
hi%self pri%arily see%s to ha(e +i(en birth to such fallacious conclusion in
the %ind of in(esti+atin+ a+ency that the entire %oti(e to -ill &%t. !hoolan
'e(i )as found to be centerin+ around this a%bitious nature of accused
&her &in+h .ana. 3 thus do not intend to +o into any further len+th of the
%atter on this aspect as the aforesaid %oti(e attributed to accused &her
&in+h .ana is not only (ery (a+ue in nature but also does not inspire %uch
confidence.
227. /o)e(er the failure of the prosecution in pro(in+ the %oti(e
on the part of accused &her &in+h .ana to co%%it %urder of &%t.
!hoolan 'e(i does not %ean that the entire prosecution case =ua hi%
needs to be thro)n o(er board. 6ndoubtedly in a cri%inal case )hich by
and lar+e is based on circu%stancial nature of e(idence %oti(e plays an
i%portant part. ertainly the prosecution is under an obli+ation to pro(e the
%oti(e )hich pro%pted the accused to resort to such a heinous act.
/o)e(er at the sa%e ti%e the failure to pro(e %oti(e )hich by and lar+e
re%ains in the %ind of the accused only and e(idence =ua )hich is difficult
to obtain does not %ean that all other circu%stances sou+ht to be pro(ed
by the prosecution also stands discredited. ,t ti%es e(en the (icti% of the
cri%e %ay not be a)are as to )hy he has been attac-ed.
228. 4hus )hile the prosecution in %y considered opinion has
failed to pro(e the %oti(e on the part of &her &in+h .ana to co%%it
%urder of &%t. !hoolan 'e(i but the absence of %oti(e does not affect the
prosecution case in any %anner. ,t this sta+e it )ill be )orth)hile to note
certain obser(ations %ade by /onHble &upre%e ourt in this re+ard.
229. 3n the decision reported as &tate of 6! ( Babu .a% >2000? 4
& 515 it )as held"1
C0e are unable to concur )ith the le+al proposition
enu%erated in the i%pu+ned *ud+%ent that %oti(e %ay
not be (ery %uch %aterial in cases dependin+ on direct
e(idence )hereas %oti(e is %aterial only )hen the case
depends upon circu%stantial e(idence. 4here is no le+al
)arrant for %a-in+ such a hiatus in cri%inal cases as for
the %oti(e for co%%ittin+ the cri%e. $oti(e is a rele(ant
factor in all cri%inal cases )hether based on the
testi%ony of eye )itnesses or circu%stantial e(idence.
4he =uestion in this re+ard is )hether a prosecution %ust
fail because it failed to pro(e the %oti(e or e(en )hether
inability to pro(e %oti(e )ould )ea-en the prosecution to
any perceptible li%it. 2o about5 if the prosecution pro(es
the eBistence of a %oti(e it )ould be )ell and +ood for it5
particularly in a case dependin+ on circu%stantial
e(idence5 for5 such %oti(e could then be counted as one
of the circu%stances. /o)e(er5 it cannot be for+otten that
it is +enerally a difficult area for any prosecution to brin+
on record )hat )as in the %ind of the respondent. @(en if
the 3n(esti+atin+ #fficer )ould ha(e succeeded in
-no)in+ it throu+h interro+ations that cannot be put in
e(idence by the% due to the ban i%posed by la).F
274. 3t is also rele(ant to note the follo)in+ obser(ations
of &upre%e ourt in the decision reported as 6**a+ar
&in+h ( &tate of !un*ab >2007? 14 &,8@ 428"1
C3t is true that in a case relatin+ to circu%stantial e(idence
%oti(e does assu%e +reat i%portance but to say that the
absence of %oti(e )ould dislod+e the entire prosecution
story is perhaps +i(in+ this one factor an i%portance
)hich is not due and >to use the clichi? the %oti(e is in the
%ind of the accused and can seldo% be fatho%ed )ith
any de+ree of accuracyF
PREPARATION
%an* obbery -ases or allotment of li=uour vend.

230. ,s re+ard the fact that accused &her &in+h .ana in order to
arran+e finances to carry out the present conspiracy co%%itted t)o
robberies in the year 2000 E 2001 at .oor-ee and /arid)ar5 the
prosecution sou+ht to pro(e these facts by )ay of deposition of !0153 /
9.7. 4ya+i )ho produced the record pertainin+ to the case re+istered (ide
case cri%e 2o. 77/20005 u/s 394/302 3!5 !& 7ot)ali5 'ehradun and !01
98 / 9ishal $ani )ho produced the record pertainin+ to case ;3. 2o.
09/015 u/s 394/397 3! at .oor-ee.
231. /o)e(er it also ca%e in the e(idence of the said )itnesses
itself that thou+h in both the said cases na%e of accused &her &in+h .ana
cropped up but either he )as dischar+ed or ac=uitted in the said cases.
232. ,ccused &her &in+h .ana on the other hand clai%ed in his
state%ent u/s 313 r.! that he )as falsely i%plicated in the said cases at
the instance of 'elhi police. 3t is also a %atter of record that initially the
said cases )ere re+istered a+ainst un-no)n persons and it )as on the
basis of disclosure state%ent of accused &her &in+h .ana only after his
in(ol(e%ent in the present case that he )as arrested in the said t)o
cases. /o)e(er later on he )as ad%ittedly dischar+ed or ac=uitted in the
said t)o cases.
233. 3t thus +oes )ithout sayin+ that sufficient e(idence
connectin+ hi% )ith the offence in =uestion could not be found by the
concerned ourts )here the said cases )ere bein+ tried. 3n these
circu%stances dra)in+ of any presu%ption on the basis of aforesaid facts
a+ainst accused &her &in+h .ana that he indul+ed in the said t)o ban-
robberies in order to create finances to carry out the eBecution of the
present cri%inal conspiracy falls flat on the +round. 4he clai% of
prosecution that accused &her &in+h .ana had a cri%inal bac- +round
thus also +ets hit. >-ertainl% he was acing a trial in an H<cise "ct case at
.aridwar?.
234. 3t is further the case of prosecution that fro% out of the
proceeds of said t)o ban- robberies accused &her &in+h .ana +ot
allotted a li=uour (end at /arid)ar in the na%e of !0 625 !an-a* 7alra so
that %ore finances could be +enerated. #nce a+ain in (ie) of the
aforesaid circu%stances )hen in(ol(e%ent of accused &her &in+h .ana
in the said t)o ban- robbery cases could not be pro(ed so the present
conclusion that he in(ested the said looted a%ount in +ettin+ the li=uour
(end allotted also does not stand pro(ed. 3t is ho)e(er entirely a different
%atter that accused &her &in+h .ana has not denied that a li=uour (end
)as bein+ run by hi% and his father &urinder &in+h .ana )hich )as
allotted in the na%e of !0 62 !an-a* 7alra. /e ho)e(er stated that the
said li=uour (end )as thou+h allotted in the na%e of !an-a* 7alra but the
finances for the sa%e )ere pro(ided by hi%.
235. !0 62 !an-a* 7alra has also stated that the finance to +et
the li=uour (end allotted )as indeed pro(ided by accused &her &in+h
.ana e(en thou+h the li=uor (end ca%e to be allotted in his na%e only.
236. 3t )ill be thus a+ain a fallacious conclusion based on
con*ectures and sur%ises only to conclude that the li=uour (end )as bein+
run by accused &her &in+h .ana in order to +enerate finances to carry
out the present contro(ersy.
4hese circu%stances thus does not stand pro(ed.
P)o'0)e+e%! o" 1eaBo% o" o""e%'e ")o+ a''0se- Pa)<ee% ?#!!a$ o)
a''0se- A+#! Ra!(#.
237. ,s already discussed !0162 !an-a* 7alra has diso)ned the
prosecution story that in his presence any re(ol(er C$,'@ 32 328@2'F
)as +i(en by accused !ar(een $ittal to accused &her &in+h .ana. 4hus
prosecution is left only )ith the disclosure state%ent of accused &her
&in+h .ana and !ar(een $ittal to pro(e this fact and as earlier also
%entioned the said disclosure state%ents are clearly inad%issible in
e(idence bein+ hit by section 25 @(idence ,ct.
238. &i%ilar is the position )ith respect to the clai% of prosecution
that accused &her &in+h .ana obtained yet another re(ol(er %ade
C0@B8@D E &#44F fro% accused ,%it .athi. 2ot only such a conclusion
is a+ain a result of the disclosure state%ents of the t)o accused persons
)hich are clearly inad%issible in la).
239. 4he other )itness eBa%ined by the prosecution in this re+ard
)as !0170 ,fa= ,h%ed )ho )as sho)n by the in(esti+atin+ a+ency as a
)or-er at the shop of accused ,%it .athi )ho repaired the re(ol(er in
=uestion. /o)e(er as earlier also %entioned !0 70 ,fa= ,h%ed did not
support the case of the prosecution in this re+ard. /e e(en denied that he
-ne) accused ,%it .athi or e(er )or-ed at his shop. /e )as not only
declared hositle by 8d. &pecial !! but )as also cross eBa%ined at len+th.
3n his cross1eBa%ination also he denied e(en -no)in+ accused ,%it .athi
or as to )hat )or- used to be done at his shop. /e also denied -no)in+
accused &her &in+h .ana. /e further denied ha(in+ been e(er +i(en any
re(ol(er by accused ,%it .athi or accused &her &in+h .ana for repair.
3nfact in the cross1eBa%ination by 8d. &pecial !.!. a su++estion )as put to
the )itness that he alon+)ith accused ,%it .athi )as in(ol(ed in the
ille+al sale of unlicensed re(ol(ers and )as also en+a+ed in the sale and
repair of ille+al )eapon and )as thus deposin+ falsely. 4his su++estion
once a+ain brin+s to the fore the conduct of the in(esti+atin+ a+ency as to
if !0 70 ,fa= ,h%ed )as also in(ol(ed in the sale and purchase of ille+al
)eapons or he repaired the said re(ol(ers. >,s per the case =ua accused
!ar(een $ittal the +roo(es of the re(ol(ers )ere to be ta%pered )ith? then
under )hat circu%stances !0 70 ,fa= ,h%ad )as let off by the
in(esti+atin+ a+ency. @(en if he )as to be %ade a )itness by the
3n(esti+atin+ ,+ency then )hether he first turned an appro(er and
per%ission of the ourt in this re+ard )as sou+ht.
240. 4hus once a+ain the in(esti+atin+ a+ency has sou+ht to play
both hot and cold as per their )hi%s and fancies )hile arrayin+ so%e
persons as co1conspirators on the basis of si%ilar -ind of e(idence and at
the sa%e ti%e lettin+ off so%e persons and %a-in+ the% )itnesses )ithout
their first turnin+ appro(ers.
241. Be that as it %ay5 the fact re%ains that prosecution has failed
to pro(e this circu%stance also a+ainst accused &her &in+h .ana
re+ardin+ procure%ent of t)o re(ol(ers >)eapons of offence? fro%
accused !ar(een $ittal or ,%it .athi.
S!a2 o" S(e) S#%&( a! FA+a%!a)a% =0es! Ho0seG C(#!!)a%4a% Pa);.
242. !rosecution has also clai%ed that earlier also accused &her
&in+h .ana carried out a sur(ey of the house of &%t. !hoolan 'e(i )hen
she )as residin+ at hittran*an !ar- and stayed at one C,%antran :uest
/ouseF near to her house. 3t has been further stated that at that ti%e &her
&in+h .ana did not carry out the %urder of &%t. !hoolan 'e(i as he did
not find the ti%e or place to be suitable. /o)e(er this conclusion as re+ard
this act or intention of &her &in+h .ana once a+ain see%s to ha(e borne
out of the disclosure state%ent of &her &in+h .ana only and is thus
inad%issible in la).
243. !011 2ir%al handra5 o)ner of C,%antran :est /ouseF has
deposed about stay of &her &in+h .ana in his +uest house. 3n his cross1
eBa%ination accused &her &in+h .ana thou+h disputed the said clai% and
also the (eracity or the correctness of the record produced by hi% but once
a+ain in %y considered opinion e(en if it is presu%ed that accused &her
&in+h .ana ca%e and stayed at C,%antran :uest /ouseF at hittran*an
!ar- fro% 27.07.00 till 29.07.00 than also it can not a%ount to an
incri%inatin+ circu%stance. 'ra)in+ of any further conclusion that )hile
sittin+ o(er there he carried out a sur(ey of the house of &%t. !hoolan
'e(i in order to co%%it her %urder is not borne out fro% any le+ally
ad%issible e(idence. #nce a+ain the prosecution see-s to dra) this
conclusion only fro% the disclosure state%ent of accused &her &in+h
.ana )hich is inad%issible in la). 4he deposition of !0130 .a*a 7u%ar
)ho e(en flip1flopped in his deposition is also of no help to the prosecution
in this re+ard.
4his circu%stance thus does not stand pro(ed.
?ee!#%& a! !(e Ho0se o" S(e) S#%&( Ra%a.
244. ,s re+ard the alle+ed %eetin+ held at his house by accused
&her &in+h .ana )here other co1conspirators )ere present and the plan
as to in )hat %anner the conspiracy is to be eBecuted or )hat role is to be
played by each of the conspirator )as discussed5 the sa%e as already
discussed =ua other accused persons does not stand pro(ed.
245. !rosecution sou+ht to pro(e this fact by the deposition of !0
625 !an-a* 7alra but he has chosen not to support the prosecution case on
this score. 4he discussion earlier held by %e =ua deposition of !0162
!an-a* 7alra need not be reiterated o(er here as prosecution has
%iserably failed in pro(in+ that any such %eetin+ e(er too- place at the
house of accused &her &in+h .ana.
4his circu%stance also thus does not stand pro(ed.
P)o'0)e+e%! o" 'o0%!)2 +a-e B#s!o$s ")o+ +0s!;ee+.
246. ,s earlier discussed the role of the in(esti+atin+ a+ency =ua
in(ol(e%ent of %ust-ee% is also not free fro% doubts. 3f he had supplied
t)o country %ade pistols to accused &her &in+h .ana then )hat )as the
reason that his case )as considered on a different footin+ fro% that of
accused !ar(een $ittal and ,%it .ahti. 4he fact ho)e(er re%ains that this
clai% of prosecution is also borne out only fro% the disclosure state%ent of
accused &her &in+h .ana )hich is inad%issible in la) bein+ hit by &. 25
@(idence ,ct. 4he char+e1sheet thou+h says that accused %ust-ee% )ho
)as found lod+ed in $u*affar 2a+ar <ail )as interro+ated in this re+ard but
thereafter the char+e1sheet is silent as to )hat facts ca%e to li+ht in the
interro+ation of %ust-ee%.
4his circu%stance thus does not stand pro(ed.
Use o" ?oA#$e P(o%es.
247. ,s re+ard the procurin+ of t)o %obile phone nu%bers
9811374806 and 9811374810 by accused &he-har5 the sa%e as has
already been discussed does not stand pro(ed by any le+ally ad%issible
e(idence. ,s re+ard %obile phone 2o. 98372371605 !0194 ,nura+ 4ya+i
has thou+h stated it )as sold by hi% to &her &in+h .ana but there is no
docu%entary e(idence to support his said clai%. /e infact stated that he
purchased the said phone fro% C:rey %ar-etF >5aar Market, (arol 0agh?5
'elhi and thus there )as no docu%entary proof =ua it. $oreo(er as earlier
also %entioned that there is no le+ally ad%issible e(idence on record to
conclude the fact that any of the aforesaid &3$ card nu%bers )ere used in
the present conspiracy. &i%ilar is the position )ith respect to %obile phone
2o. 9837222779 stated to ha(e been borro)ed fro% !013 7o(id Batra.
248. 4he use of the aforesaid %obile phones in the present
conspiracy )hich )as sou+ht to be pro(ed by (irtue of the call detail record
or the cell 3' chart as already discussed by %e )as found to be
inad%issible in la) in the absence of certificate u/s 651B 3ndian @(idence
,ct5 1872. 4hus procure%ent of the %obile phone or &3$ cards by accused
&her &in+h .ana or accused &he-har &in+h ceases to ha(e any
rele(ance.
249. 'ra)in+ of any conclusion to the contrary by the prosecution
)ill be a+ain on the basis of con*ectures and sur%ises not based on any
le+ally ad%issible e(idence.
4he prosecution has thus failed to pro(e this circu%stance.
AAs'o%-a%'e o" PW-72, Pa%;a4 @a$)a a! !(e as;#%& o" S(e) S#%&(
Ra%a.
250. ,s re+ard the fact that !an-a* 7alra )as also told by accused
&her &in+h .ana to flee a)ay after the incident has also been discussed
by %e earlier and it re%ains uneBplained as to if !an-a* 7alra )as not a
part of the conspiracy then )hy he )as as-ed to flee a)ay after the
incident. 3t is ho)e(er a different %atter that !0162 !an-a* 7alra has also
not supported the case of prosecution e(en on this score and stated that
he has not fled a)ay after the alle+ed incident. 3nfact the prosecution as
already %entioned has been e(en not successful in pro(in+ that !0 62
!an-a* 7alra )as in any %anner e(en a)are of the i%pu+ned conspiracy
or the ob*ect sou+ht to be achie(ed by the conspiracy or e(en that he had
indeed run a)ay after the incident.
4he prosecution has thus failed to pro(e this circu%stance.
AAs'o%-a%'e o" 9#4a2 S#%&( Ra%a a%- o!(e) "a+#$2 +e+Ae)s o" S(e)
S#%&( Ra%a.
251. 4his issue has also been already discussed by %e earlier
)hile discussin+ the case of prosecution =ua accused 9i*ay &in+h .ana.
@(en if it be presu%ed that after the %urder of &%t. !hoolan 'e(i5 the
fa%ily %e%bers of accused &her &in+h .ana fled a)ay fro% their house5
then also nothin+ ad(erse can be read a+ainst accused &her &in+h .ana
fro% this circu%stance. 4hou+h this fact has been denied by both accused
&her &in+h .ana and his brother 9i*ay &in+h .ana and they e(en
eBa%ined '014 8alit &in+h5 &ub 'i(isional @n+ineer5 B&285 .oor-ee5 to
sho) that calls )ere bein+ %ade and recei(ed at the telephone nu%bers
01332171805 and 77120 installed at their residence durin+ the period
27.07.01 till 30.07.01. /o)e(er irrespecti(e of the said fact5 3 %ay a+ain
reiterate that firstly there )as no reason for the parents of accused &her
&in+h .ana to flee a)ay but e(en the clai% of the prosecution in this
re+ard has been falsified by !0162 !an-a* 7alra )ho )as also sho)n to
ha(e +one alon+)ith fa%ily %e%bers of accused &her &in+h .ana. 4hus
%erely on account of this fact of alle+ed abscondance by the fa%ily
%e%bers of &her &in+h .ana5 )hich fact thou+h has not been pro(ed by
any co+ent or con(incin+ e(idence but e(en if presu%ed to ha(e been
pro(ed then also no ad(erse inference a+ainst accused &her &in+h .ana
can be dra)n by (irtue of it.
252. 3nfact the deposition of !0161 'a(ender 7u%ar $ittal the
o)ner of /otel C')aparF $ussoorie is also of no help to the prosecution in
this re+ard.
Use o" Ca) %o. UP-14B-,..
253. ,s earlier %entioned in the discussion pertainin+ to accused
.a*bir5 the (ery use of ar 2o. 6! 14B 7559 in the present conspiracy
could not be pro(ed by the prosecution. 3t also could not be pro(ed that the
three accused persons na%ely .a*bir &in+h5 &he-har &in+h and 'han
!ar-ash tra(elled in the said $aruti ar fro% .oor-ee to 'elhi or that later
on after the incident accused .a*bir &in+h5 &he-har &in+h and accused
&her &in+h .ana %o(ed in the said )hite $aruti ar fro% :haAiabad
on)ards. ,ccordin+ly the fact that the said ar )as reco(ered fro%
&aharanpur at the instance of accused .a*bir &in+h5 .a*ender and
&he-her &in+h is of no rele(ance at all.
W(e!(e) assa#$a%!s 1e)e +as;e-.
254. /o)e(er the %ost i%portant and crucial piece of e(idence
sou+ht to be pro(ed by the prosecution is that it )as accused &her &in+h
.ana G !an-a* )ho fired at &%t. !hoolan 'e(i. ,s already %entioned
)hile discussin+ the theory of assailants bein+ %as-ed at the ti%e of
incident the clai% of prosecution to the contrary )as clearly found to be
)ron+ >In order to avoid re)etition, I am not reiterating the said disc*ssion
over here?. 3t is thus difficult to conclude on the basis of identification by t.
Balender that accused &her &in+h .ana )as one of the t)o assailants
)ho shot at the%. 3nfact as per the prosecution case itself accused &her
&in+h .ana )as )ell -no)n to !0 52 7ali haran5 the co%plainant on
)hose state%ent the present case ca%e to be re+istered. 4he state%ent of
co%plainant 7ali haran )as ad%ittedly recorded )ithin 1 T to 2 hours of
the incident. , perusal of his said state%ent sho)s that he %erely +a(e the
physical description of the t)o assailants i.e. re+ardin+ the built or nature
of hair beside statin+ the description of the clothes )hich the t)o
assailants )ere )earin+ at that ti%e. /e ho)e(er did not %ention that one
of the% )as accused &her &in+h .ana G !an-a*. 4hou+h to)ards the
end of his co%plaint he state that !an-a* is %issin+ since the ti%e of
incident. @(en in his deposition in the ourt this )itness initially in his
eBa%ination1in1chief stated that accused &her &in+h .ana )as one of the
said t)o assailants )ho had fired at &%t. !hoolan 'e(i but in his re1
eBa%ination at a later date after accused &her &in+h .ana )as a+ain
arrested >D*ring the co*rse o trial acc*sed Sher Singh #ana absconded
awa% or a )eriod o abo*t 6 %ears? he turned around and stated that the
assailants )ere infact %as-ed. 6pon bein+ cross1eBa%ined by 8d. &pecial
!! he stated that earlier due to fear of police he had not stated the true
facts but no) since !01104 $unni 'e(i the sister of &%t. !hoolan 'e(i
has also spo-en the truth so he is also statin+ the true and correct facts.
ertainly one %ay ar+ue relyin+ upon a nu%ber of case la) and the
fa%ous case F@(044# : S0)e%-e)a T#1a)# 9s. S!a!e o" ?a-(2a
P)a-es(G, AIR 11, SC 1545, that the testi%ony of a hostile )itness can
also be relied upon and the sa%e can be the basis of con(iction but as
already discussed and concluded that assailants at the ti%e of incident
)ere %as-ed so the deposition of this )itness only raises doubts as
re+ards the (eracity of the prosecution case only. $oreo(er if accused
&her &in+h .ana )as ad%ittedly )ell -no)n to this )itness then )hat
pre(ented hi% fro% statin+ in his initial co%plaint to the police itself that
one of the t)o assailants )as &her &in+h .ana. /is state%ent )as
recorded )ithin 2 hours of the incident and thus it cannot be presu%ed that
he %ade any e%bellish%ent in his state%ent. 4his fact a+ain raises doubts
that !0152 7ali haran or !0173 t. Balender or for that %atter any other
eye )itness of the incident has identified accused &her &in+h .ana at the
spot itself firin+ to)ards &%t. !hoolan 'e(i.
4hus in %y considered opinion the prosecution has failed to
pro(e this circu%stance also.
255. ,t this sta+e5 3 intend to also briefly refer to one other issue
)hich )hen raised by the prosecution )as (ery feebly protested by the
accused. !rosecution has clai%ed that accused &her &in+h .ana )as also
-no)n by the na%e !an-a* G &heru. ,ccused has ho)e(er disputed the
said clai% statin+ that he )as not -no)n by the na%e !an-a*.
256. /o)e(er (arious prosecution )itnesses ha(e flip1flopped on
this issue either in their eBa%ination1in1chief or their cross1eBa%ination but
in %y considered opinion any analysis of their deposition =ua this issue is
not re=uired5 for the issue bein+ raised is i%%aterial in the o(erall facts
and circu%stances of the case. 2ot only all the )itnesses ha(e clai%ed
that the assailants ran a)ay fro% the spot in the ar in )hich !0117 6%a
7ashyap and !0118 9i*ay 7ashyap had co%e in the %ornin+ bein+ dri(en
by accused &her &in+h .ana. ,s 3 shall be discussin+ at a later sta+e that
this fact not only stands pro(ed fro% the e(idence led by the prosecution
but e(en accused &her &in+h .ana has not disputed the said fact. 4hus
the case of prosecution is pri%arily that &%t. !hoolan 'e(i and t.
Balender )ere fired at by accused &her &in+h .ana )ho had co%e in the
%ornin+ in his ar 2o. 3$1907 alon+)ith 6%a 7ashyap and 9i*ay
7ashyap. 4hus it is i%%aterial that the person )ho had co%e dri(in+ ar
2o. 3$1907 )ith 6%a 7ashyap and 9i*ay 7ashyap )as also -no)n by the
na%e !an-a* or not beside bein+ called as &her &in+h .ana.
I-e%!#"#'a!#o% A2 PW-114 Ba(a-0) S(a( a%- PW-,3 C!. Ba$e%-e)
257. ,s has already been discussed )hile discussin+ the
deposition of !01114 Bahadur &hah in the case a+ainst accused &he-har
&in+h and 'han !ar-ash that identification by hi% of the said passen+ers
is clearly doubtful and cannot be relied upon. &i%ilarly identification of
&her &in+h .ana by t. Balender at the ti%e of incident e(en thou+h he
)as -no)n to hi% fro% prior to also does not stand pro(ed. 3t is not the
case of prosecution that t. Balender identified accused &her &in+h .ana
fro% his o(er all appearance or the clothes )hich he )as )earin+ since
%ornin+. /e identified hi% fro% his photo+raph only and )hich
identification appears to be doubtful as 3 ha(e already concluded that the
assailants at the ti%e of incident )ere )earin+ %as-.
258. 3n these circu%stances the identification of accused &her
&in+h .ana either by t. Balender or by 4&. 'ri(er Bahadur &hah
re%ains doubtful. 3nfact !011295 9inod 9ish)anath also stated that )hile
boardin+ the 4&. he had seen the three boys thro)in+ off their %as-s but
he infact failed to identify the% later on in the ourt.
4he prosecution has thus failed in pro(in+ this circu%stance
also.
Re'o<e)2 o" 9#-eo Casse!!e o" "#$+ FBa%-#! K0ee%G a%- -#a)2 ")o+ !(e
(o0se o" S(e) S#%&( Ra%a
259. 4he %ere reco(ery of (ideo cassette of fil% CBandit IueenF
fro% the house of accused &her &in+h .ana after his arrest or a diary
containin+ phone nu%bers of ,%it .athi and !ar(een $ittal can not
a%ount to any incri%inatin+ circu%stance as has already been discussed
)hile discussin+ the case of prosecution =ua accused ,%it .athi and
!ar(een $ittal. 4he sa%e at the %ost can sho) so%e prior ac=uaintance
bet)een the% but can not si%plicitor indicate anythin+ that they )ere
conspirators in the present conspiracy.
Re"0sa$ !o Ba)!#'#Ba!e #% TIP.
260. ,s re+ards the refusal of accused &her &in+h .ana to
participate in 43! the sa%e as earlier also discussed =ua other accused
persons na%ely &he-har &in+h and 'han !ar-ash can not be of any
conse=uence. 3nfact e(en the alle+ed !ress onference so addressed by
accused &her &in+h .ana )as attended by photo+raphers fro% $edia
and his photo+raph )as thus (ery %uch a(ailable in the %edia. $oreo(er
accused &her &in+h .ana )as not arrayed for 43! soon after his arrest by
'elhi police officers and rather his police custody re%and )as initially
sou+ht for 10 days and thereafter he )as arrayed for 43! on 07.08.01.
4hus no ad(erse inference in %y considered opinion can be dra)n on
account of refusal to participate in 43! by accused &her &in+h .ana.
9#s#! !o !(e (o0se o" S+!. P(oo$a% De<# o% 2..0,.01.
261. 4he case of prosecution in this re+ard is that accused &her
&in+h .ana de(eloped inti%acy )ith 6%a 7ashyap and her husband 9i*ay
7ashyap in order to +ain access to the house of &%t. !hoolan 'e(i. 4his
fact stands pro(ed fro% the deposition of !0117 6%a 7ashyap and her
husband !0118 9i*ay 7ashyap or e(en fro% the deposition of (arious
other )itnesses na%ely !0 52 7ali haran5 !0173 t. Balender5 !0 1045
$unni etc )ho all also stated that &her &in+h .ana used to (isit the house
of &%t. !hoolan 'e(i alon+)ith !0 117 6%a 7ashyap and !0118 9i*ay
7ashyap.
262. 3nfact accused &her &in+h .ana hi%self has also not
disputed that he -ne) 6%a 7ashyap and alon+)ith her used to (isit the
house of &%t. !hoolan 'e(i. /e ho)e(er stated that 6%a 7ashyap used
to as- hi% to +o alon+)ith her to 'elhi in his ar to the house of &%t.
!hoolan 'e(i. /o)e(er in %y considered opinion the aforesaid facts ta-en
either )ay does not %a-e any difference. 3nfact on the day of incident also
accused &her &in+h .ana has not disputed his (isit alon+)ith 6%a
7ashyap and 9i*ay 7ashyap to the house of &%t. !hoolan 'e(i. /e infact
has also clai%ed his presence o(er there e(en at the ti%e of incident e(en
thou+h prosecution has clai%ed his presence at that ti%e as one of the
assailant. /e further stated that on 24.07.01 both 6%a 7ashyap and her
husband 9i*ay 7ashyap forced hi% repeatedly to co%e to 'elhi alon+)ith
the% on the neBt day and that he hi%self did not as- the% to co%e to 'elhi
alon+)ith hi%. #nce a+ain these facts are of no conse=uence since the
(isit by accused &her &in+h .ana to 'elhi on the day of incident or his
presence at the house of &%t. !hoolan 'e(i since %ornin+ stands )ell
pro(ed not only fro% the deposition of (arious )itnesses includin+ !0 52
7ali haran5 !01104 $unni 'e(i and !0173 t. Balender but he hi%self
has also not disputed the said fact either in the cross1eBa%ination of these
)itnesses or in his state%ent u/s 313 r.!.
263. Ho1e<e), I s(a$$ Ae -#s'0ss#%& a! a $a!e) s!a&e !(a! !(#s
B)o<e-6a-+#!!e- B)ese%'e o" a''0se- S(e) S#%&( Ra%a o% !(e -a2 o"
#%'#-e%! a! !(e (o0se o" S+!. P(oo$a% De<# %o! o%$2 &#<e A#)!( !o
'e)!a#% 0%a%s1e)e- >0es!#o%s6'#)'0+s!a%'es A0! +a2 a$so $ea- !o
-)a1#%& o" 'e)!a#% 'o%'$0s#o%s aAo0! (#s 'o%-0'! soo% a"!e) !(e
#%'#-e%!.
Use o" Ca) No. CI?-0, A2 !(e assa#$a%!s.
264. /o)e(er before ad(ertin+ further on this aspect it )ill be
)orth)hile to first eBa%ine as to )hether the o)nership of ar 2o. 3$1
907 in the na%e of &her &in+h .ana has been pro(ed by the prosecution
or not.
265. 3n this re+ard deposition of !01935 $ansur ,la% in rele(ant.
/e stated that he sold the said ar 2o. 3$1907 to &her &in+h .ana. /is
deposition to this effect has also not been contro(erted by accused &her
&in+h .ana. 3nfact &her &in+h .ana hi%self ad%itted in his state%ent u/s
313 r.! that earlier he had lod+ed a co%plaint )ith the police re+ardin+
%issin+ of his ar 2o. 3$1907 but later on he found that it )as ta-en
a)ay by 9i*ay 7ashyap. /e e(en ad%itted in his state%ent u/s 313 r.!
that he purchased the said ar 2o. 3$1907 fro% !0193 $ansur ,la%.
266. $oreo(er !01525 7ali haran5 !0173 t. Balender besides
!0117 6%a 7ashyap and !0118 9i*ay 7ashyap ha(e all stated that on
25.07.01 accused &her &in+h .ana ca%e )ith 6%a 7ashyap and 9i*ay
7ashyap in ar 2o. 3$1907 to the house of &%t. !hoolan 'e(i. ,ccused
&her &in+h .ana hi%self has also not disputed the said facts. /e e(en
ad%itted the clai% of prosecution )itnesses that on that day as the ar of
&%t. !hoolan 'e(i )as not a(ailable so he had dropped her and t.
Balender in his ar 2o. 3$1907 to !arlia%ent /ouse.
267. 4hus fro% all these circu%stances it stands conclusi(ely
pro(ed that ar 2o. 3$1907 belon+ed to accused &her &in+h .ana.
268. 4he neBt i%portant circu%stance )hich no) arises for
consideration is )hether the assailants fled a)ay fro% the spot in ar 2#.
3$1907.
269. 4he fact that the assailants soon after the incident fled a)ay
fro% the spot in +reen colour $aruti ar 2o. 3$1907 belon+in+ to &her
&in+h .ana stands )ell pro(ed fro% the deposition of !01175 6%a
7ashap5 !0152 7ali haran5 !011045 $unni 'e(i5 !0173 t. Balender
and !01129 9inod 9ish)anath )ho )as a chance )itness of the incident.
3nfact 3 )as unable to find anythin+ in the cross1eBa%ination of any of the
prosecution )itnesses that accused &her &in+h .ana disputed this clai%
of the prosecution. 3nfact his sole thrust has been to state that he )as not
one of the assailant and secondly that he )as present at the spot e(en
after the incident. 3t thus clearly stands pro(ed that after firin+ at &%t.
!hoolan 'e(i and t. Balender5 the assailants fled a)ay in the +reen
colour $aruti ar 2o. 3$1907 belon+in+ to accused &her &in+h .ana.
4his fact also stands pro(ed fro% the testi%ony of 3# >!01170? ,!
&uresh 7aushi- or other police officers and ;&8 eBperts )ho inspected
ar 2o. 3$1907 at the spot itself and found bullet %ar-s on the rear
+lass. 4he fact that a bullet fired by t. Balender fro% his ser(ice re(ol(er
hit the rear +lass of ar 2o. 3$1907 also stands pro(ed fro% the report of
;&8 eBperts. 4his fact also lends support to the conclusion that the three
assailants fled a)ay fro% the spot in ar 2o. 3$1907.
270. 4he report of ;&8 eBperts to this effect has also not been
disputed by accused &her &in+h .ana. 3nfact )hile relyin+ upon the
co%%unication %ade by &h. &uresh .oy >ourt 0itness15? the then <oint
o%%issioner of !olice5 2e) 'elhi it )as only clai%ed ri+ht throu+h the
entire trial that the re(ol(ers5 cartrid+es or %on-ey caps ha(e been planted
in ar 2o. 3$1907 but the fact that ar 2o. 3$1907 )as found lyin+
abandoned at !andit !ant $ar+ )ithin fe) %inutes of the incident and that
too )ith bullets %ar-s on the rear +lass has not been disputed.
271. $oreo(er fro% the deposition of !011295 9inod 9ish)anath
it also stands clearly pro(ed that the assailants after lea(in+ ar 2o. 3$1
907 at !andit !ant $ar+ boarded 4&. 2o. '811.;10235.
272. 4hus fro% all the aforesaid circu%stances and the deposition
of the )itnesses it stands clearly pro(ed that the assailants soon after the
incident fled a)ay fro% the spot in ar 2o. 3$1907.
273. T(e a"o)esa#- "a'!s a%- '#)'0+s!a%'es !(0s '$ea)$2 s(#"!s
!(e A0)-e% 0Bo% a''0se- S(e) S#%&( Ra%a 06s 107 E<#-e%'e A'! !o
eCB$a#% as !o #% 1(a! '#)'0+s!a%'es (#s Ca) No. CI?-0, 'a+e !o Ae
0se- A2 !(e assa#$a%!s #% "$ee#%& a1a2 ")o+ !(e sBo! a"!e) !(e #%'#-e%!
#" (e (#+se$" 1as %o! o%e o" !(e assa#$a%!.
274. &her &in+h .ana has ho)e(er clai%ed that he )as not
in(ol(ed in firin+ incident )hich too- place at the house of &%t. !hoolan
'e(i. 3nfact he clai%ed that at the ti%e of incident he )as present in the
house5 as )as also clai%ed by !0152 7ali haran. /e further stated that
in fact all the persons )ho )ere present in the house at the ti%e of incident
)ere rounded up by the police and later on after ille+ally dentainin+ hi% for
2 days he )as sho)n to ha(e been arrested fro% 'ehradun sho)in+ that
he had addressed a !ress conference at C'oon !ress lubF ad%ittin+ his
in(ol(e%ent in the present case and )as thereafter arrested by police of
!& 'allan)ala5 'ehradun.
275. 4hus )hat is no) re=uired to be seen is as to )hether the
aforesaid eBplanation furnished by accused &her &in+h .ana re+ardin+ his
presence at the spot at the ti%e of incident or soon thereafter is plausible
and is sufficient to dischar+e his burden of so pro(in+ u/s 106 @(idence
,ct.
276. 4he use of car 2o. 3$1907 belon+in+ to &her &in+h .ana by
the assailants or his absence fro% the house at the ti%e of incident are in
fact the %ost i%portant incri%inatin+ piece of e(idence )hich tends to
connect accused &her &in+h .ana )ith the offence in =uestion.
,d%ittedly accused &her &in+h .ana )as present since %ornin+ at the
house of &%t. !hoolan 'e(i on the day of incident. 4hou+h !0152 7ali
haran stated that accused &her &in+h .ana had also +one to .$8
hospital in the sa%e $aruti 9an in )hich &%t. !hoolan 'e(i and t.
Balender )ere re%o(ed but this fact )as not put by accused &her &in+h
.ana in the cross eBa%ination of any of the other eye )itnesses of the
incident. 3t )as also not su++ested to any )itness that all the persons
present in the house at the ti%e of incident )ere rounded up by the police
soon after the incident. ,s already discussed the deposition of !0 52 7ali
haran can not be +i(en %uch credence to this effect and especially )hen
accused &her &in+h .ana hi%self has not clai%ed this aspect of the
%atter. 3nfact in his state%ent u/s 313 r.! in response to I. 2o. 219 he
stated that )ithin one hour of the incident he alon+)ith all other persons
present in the house )ere ta-en to the police station by the police. 3t is his
further case that later on he )as detained ille+ally by 'elhi !olice but )as
sho)n to ha(e been arrested fro% 'ehradun.
277. 4his clai% of accused &her &in+h .ana is ho)e(er clearly
false for a nu%ber of reasons.
278. ;irstly if accused &her &in+h .ana )as found to be the
actual culprit then there )as no reason for the police to not clai% that the
actual culprit has been apprehended soon after the incident and the police
)ould not ha(e faced such a fla- fro% the hi+her authorities that the la)
and order situation in 'elhi is bad as a sittin+ %e%ber of !arlia%ent has
been %urdered in the heart of national capital.
279. &econdly the fact that accused &her &in+h .ana )as found
to be stayin+ in hotel C!ra%ilaF at /arid)ar i%personatin+ as ,noop &in+h
further supports that on 25
th
and 26
th
<uly 2001 he )as not in the custody
of police. $oreo(er there )as no reason for 'elhi !olice if they had
already detained accused &her &in+h .ana to ta-e hi% to 'ehradun and
to %a-e hi% address a !ress onference as clai%ed by &her &in+h .ana.
3f they )ere to arran+e and %anipulate any such !ress onference then
they could ha(e done it at 'elhi or at .oor-ee to )hich place accused
&her &in+h .ana belon+ed to.
280. 3nfact in the cross1eBa%ination of !011465 3nsp. !ari-shit
7u%ar5 the then &/#5 !& 'allan)ala5 'ehradun )ho arrested accused
&her &in+h .ana fro% outside C'oon !ress lubF it )as su++ested on
behalf of accused &her &in+h .ana that fro% 12 2oon to 2 !.$. accused
&her &in+h .ana )as in the custody of 'elhi police. 3nsp. !ari-shit 7u%ar
thou+h stated the said su++estion to be )ron+ but this su++estion +oes to
falsify the clai% of accused &her &in+h .ana that he )as in ille+al
detention of 'elhi !olice ri+ht fro% 25.07.01itself. 4he aforesaid clai% of
accused &her &in+h .ana also stands falsified fro% the depostion of !01
116 'eepa- !urohit and !01124 Babu .a% 'ubey5 the t)o %ana+ers of
hotel C!ra%ilaF at /arid)ar and hotel C:an+a 9ie)F at .ishi-esh .oad5
/arid)ar )here accused &her &in+h .ana had stayed on the ni+ht of
25.07.01 and 26.07.01 respecti(ely. 3n hotel C!ra%ilaF /arid)ar5 accused
&her &in+h .ana si+ned the re+ister as C,noop &in+hF and this fact stands
duly pro(ed fro% the deposition of hand )ritin+ eBpert !011345 $s. 'eepa
9er%a. , perusal of the cross1eBa%ination of this )itness by &her &in+h
.ana clearly sho)s that eBcept for puttin+ certain su++estions that the
report has been prepared by her in conni(ance )ith the in(esti+atin+
officer of the case nothin+ %aterial could be elicited )hich could either
sho) that her report )as )ron+ in any %anner or that she )as deposin+
falsely on any aspect. 3nfact in his state%ent u/s 313 r.! in response to
I. 2o. 354 and I. 355 &her &in+h .ana stated that the police forced hi%
to si+n (arious papers includin+ re+isters of so%e hotels )hile he )as in
their custody. 4hus he pri%arily did not dispute the factu% of his si+natures
on the re+isters but si%ply stated that he )as forced to do so. 3n order to
appreciate this contention of accused &her &in+h .ana the deposition of
!01116 'eepa- !urohit or that of !01124 Babu .a% 'ubey )ill be
)orth)hile to note. 4hese t)o )itnesses clearly identified accused &her
&in+h .ana not only as the person )ho had co%e alon+)ith police and
pointed out their hotel statin+ that he had stayed o(er there but they also
stated that &her &in+h .ana )as infact one of the persons )ho had stayed
at their hotel on 25.07.01 and 26.07.01 respecti(ely. 3nfact a perusal of
their cross1eBa%ination sho)s that bald su++estions )ere only put to
these )itnesses on behalf of &her &in+h .ana that either they )ere not
e%ployees of the respecti(e hotels or that the re+isters produced by the%
did not belon+ to the said hotels. 4he )itnesses ho)e(er denied the said
clai% and stated the su++estions to be )ron+. ,part fro% it 3 ha(e been
unable to find anythin+ substantial in the cross1eBa%ination of any of these
t)o )itnesses )hich could either fa(our the accused or %ay lead %e to
disbelie(e their deposition.
281. #nce a+ain this fact clearly falsifies the clai% of accused
&her &in+h .ana that on 25.07.01 he )as ille+ally detained by the police
and )as later on sho)n to ha(e been arrested fro% 'ehradun on
27.07.01. 3t is in these circu%stances the abscondance of accused &her
&in+h .ana fro% the house of &%t. !hoolan 'e(i ri+ht fro% the ti%e )hen
the firin+ incident too- place and thereafter stayin+ in hotels by
i%personatin+ hi%self as ,noop &in+h operates as a stron+ incri%inatin+
circu%stance a+ainst hi%.
282. 4hus accused &her &in+h .ana has clearly failed in
eBplainin+ his presence either at the ti%e of incident or soon thereafter by
any eBplanation %uch less any plausible eBplanation. 3nfact his clai% that
he )as ille+ally detained by 'elhi police officials on 25.07.01 itself is also
found to be false.
283. 3t is in these circu%stances the non1eBplanation by accused
&her &in+h .ana of the circu%stances in )hich his ar 2o. 3$1907 ca%e
to be used by the assailants beco%es i%portant. 4hou+h durin+ the course
of ar+u%ents he has ar+ued that the said ar )as probably used by 6%a
7ashyap and 9i*ay 7ashyap in conni(ance )ith 6%ed &in+h husband of
!hoolan 'e(i as they )ere probably ha(in+ so%e duplicate -eys but 3
ha(e been unable to find that any such su++estion )as e(en put to either
of the aforesaid three )itnesses in their cross1eBa%ination. @(en in his
state%ent u/s 313 r.! in response to =uestion 2o. 441 he stated that he
has se(eral thin+s to say in defence and that he shall be filin+ detailed
)ritten sub%issions after consultin+ his ounsel but eBcept for sub%ittin+
so%e bullet points in )ritin+ %erely sho)in+ the na%es of nu%ber of
%aterial prosecution )itnesses eBa%ined5 no such )ritten sub%issions
)ere filed on his behalf. 4hus this clai% of &her &in+h .ana that his ar
)as used by 6%a 7ashyap or her husband 9i*ay 7ashyap in conni(ance
)ith 6%ed &in+h clearly appears to be an after thou+ht.
284. 4hus once a+ain furnishin+ of no eBplanation in this re+ard
by accused &her &in+h .ana as to under )hat circu%stances his ar 2o.
3$1907 ca%e to be used by the assailants leads to only one conclusion
that it )as accused &her &in+h .ana only )ho )as either one of the t)o
assailants )ho fired at &%t. !hoolan 'e(i and t. Balender or )as dri(in+
ar 2o. 3$1907 in )hich the t)o shooters fled a)ay fro% the spot after
the incident.
285. 3t has been stron+ly ar+ued by 8d. ounsel for the accused
persons and ri+htly so that the in(esti+ation carried out in the present case
has not been abo(e board and %any circu%stances )ere not brou+ht
for)ard since they )ere not fa(ourin+ the case of the prosecution or in
other )ords )ere fa(ourin+ the case of the accused persons.
286. 6ndoubtedly 3 ha(e also obser(ed at a nu%ber of places in
%y present *ud+%ent that there )ere nu%ber of such instances )here
certain i%portant facts )ere not brou+ht on the file by the in(esti+atin+
a+ency for reasons best -no)n to the%. /o)e(er the =uestion )hich
arises is )hether on account of such defecti(e or perfunctory in(esti+ation
should the entire prosecution case be thro)n o(er board. 0hether such
defecti(e in(esti+ation )ill ha(e the effect of e(en brushin+ aside the
(arious i%portant incri%inatin+ circu%stances )hich ha(e co%e on record
a+ainst accused &her &in+h .ana and )hich circu%stances he has failed
to repel by any eBplanation %uch less any plausible eBplanation in that
re+ard.
287. 3n this re+ard it )ill be )orth)hile to %ention certain
obser(ations %ade by /onHble 'elhi /i+h ourt in the case C9#s(a$ Da-a<
<. S!a!e o" U.P.G /S0B)a3 )herein the /onHble ourt in si%ilar
circu%stances su%%arised the obser(ations of /onHble &upre%e ourt
%ade in a nu%ber of such li-e cases to hold that %ere defects in the
in(esti+ation by itself can not be a +round for ac=uittal as the conclusion of
the ourt can not be allo)ed to depend solely on the probity of the
in(esti+ation. 4he discussion %ade in the said *ud+%ent by /onHble /i+h
ourt fro% para 2o. 1882 on)ard reads as under"
C1882. 3t has been ur+ed by $r. !.7. 'ey5 learned
counsel for the co%plainant that so far as the accused
are concerned the in(esti+ation )as fair5 not tainted.
4he abo(e o%issions are i%portant fro% the
perspecti(e of the prosecution. 3t is ur+ed that the
lapses in the in(esti+ation by the%sel(es )ould not
result in (itiatin+ the trial as the rest of the e(idence
%ust be scrutiniAed independently. 8earned counsel
has ur+ed that cri%inal *ustice cannot be a casualty
on account of lapses co%%itted by the in(esti+atin+
officer.
1883. 4his issue arose before the &upre%e ourt in
2000 & >rl.? 61 &tate of 7arnata-a (. 7. Darappa
.eddy )here the court )as called upon to consider
the =uestion of defecti(e in(esti+ation as to )hether
any %anipulation in the station house diary by the
in(esti+atin+ officer could be put a+ainst the
prosecution. 3n para 19 of the pronounce%ent5 the
court held thus"1
CU19. But can the abo(e findin+ >that the station
house diary is not +enuine? ha(e any ine(itable
bearin+ on the other e(idence in this caseO 3f the
other e(idence5 on scrutiny5 is found credible
and acceptable5 should the ourt be influenced
by the %achinations de%onstrated by the
3n(esti+atin+ #fficer in conductin+ in(esti+ation
or in preparin+ the records so unscrupulouslyO 3t
can be a +uidin+ principle that as in(esti+ation is
not the solitary area for *udicial scrutiny in a
cri%inal trial5 the conclusion of the ourt in the
case cannot be allo)ed to depend solely on the
probity of in(esti+ation. 3t is )ell1ni+h settled that
e(en if the in(esti+ation is ille+al or e(en
suspicious the rest of the e(idence %ust be
scrutinised independently of the i%pact of it.
#ther)ise the cri%inal trial )ill plu%%et to the
le(el of the in(esti+atin+ officers rulin+ the roost.
4he court %ust ha(e predo%inance and pre1
e%inence in cri%inal trials o(er the action ta-en
by the in(esti+ation officers. ri%inal <ustice
should not be %ade a casualty for the
)ron+sco%%itted by the in(esti+atin+ officers in
the case. 3n other )ords5 if the court is
con(inced that the testi%ony of a )itness to the
occurrence is true the court is free to act on it
albeit the in(esti+atin+ officerHs suspicious role in
the case.F
>@%phasis by us?
1884. #n the sa%e issue5 our attention has been
dra)n to the pronounce%ent of the &upre%e ourt
reported at /20103 . SCC 1, AA0 J(a;#) <. S!a!e o"
Ta+#$ Na-0. !lacin+ reliance on para 19 of 7.
Darappareddy >supra?5 the &upre%e ourt re*ected
the ar+u%ents on behalf of the appellant that the
in(esti+ation )as not fair as there )ere %any %issin+
lin-s in the process of in(esti+ation.
1885. 4he appellants ha(e stron+ly assailed the
failure of the in(esti+atin+ a+ency to send the
ha%%er for opinion of the doctor )ho conducted the
post1%orte%. Based on this ob*ection5 it has been
pressed before us that the (ery reco(ery of the
ha%%er %ust be disbelie(ed. , si%ilar ob*ection
arose for consideration before the &upre%e ourt
also in >2004? 10 & 598 .a% Bali (. &tate of 6.!.
>!aras 12114?. 0e %ay usefully eBtract the rele(ant
portion of the *ud+%ent5 )hich reads thus"
CU12. 4he in(esti+ation )as also stated to be
defecti(e since the +un )as not sent for forensic
test. 3n the case of a defecti(e in(esti+ation the
court has to be circu%spect in e(aluatin+ the
e(idence. But it )ould not be ri+ht in ac=uittin+
an accused person solely on account of the
defectN to do so )ould tanta%ount to playin+ into
the hands of the in(esti+atin+ officer if the
in(esti+ation is desi+nedly defecti(e. >&ee 7arnel
&in+h (. &tate of $.!. Q>1995? 5 & 518 " 1995
& >ri? 977R ?
13. 3n !aras Dada( (. &tate of Bihar Q>1999? 2
& 126 " 1999 & >ri? 104R it )as held that if
the lapse or o%ission is co%%itted by the
in(esti+atin+ a+ency or because of ne+li+ence
there had been defecti(e in(esti+ation the
prosecution e(idence is re=uired to be eBa%ined
dehors such o%issions carefully to find out
)hether the said e(idence is reliable or not and
to )hat eBtent5 such lapse affected the ob*ect of
findin+ out the truth. 4he conta%inated conduct
of officials alone should not stand in the )ay of
e(aluatin+ the e(idence by the courts in findin+
out the truth5 if the %aterials on record are
other)ise credible and truthfulN other)ise the
desi+ned %ischief at the instance of biased or
interested in(esti+ator )ould be perpetuated and
*ustice )ould be denied to the co%plainant party5
and in the process to the co%%unity at lar+e.
14. ,s )as obser(ed in .a% Bihari Dada( (.
&tate of Bihar Q>1998? 4 & 517 " 1998 &
>ri? 1085R if pri%acy is +i(en to such desi+ned
or ne+li+ent in(esti+ation5 to the o%ission or
lapses by perfunctory in(esti+ation or o%issions5
the faith and confidence of the people )ould be
sha-en not only in the la)1enforcin+ a+ency but
also in the ad%inistration of *ustice. 4he (ie)
)as a+ain reiterated in ,%ar &in+h (.Bal)inder
&in+h Q>2003? 2 & 518 " 2003 & >ri? 641R .
,s noted in ,%ar &in+h case Q>2003? 2 &
518 " 2003 & >ri? 641R it )ould ha(e been
certainly better if the firear%s )ere sent to the
;orensic 4est 8aboratory for co%parison. But the
report of the ballistic eBpert )ould %erely be in
the nature of an eBpert opinion )ithout any
conclusi(eness attached to it. 0hen the direct
testi%ony of the eye)itnesses corroborated by
the %edical e(idence fully establishes the
prosecution (ersion5 failure or o%ission or
ne+li+ence on the part of the 3# cannot affect the
credibility of the prosecution (ersion.F
>@%phasis by us?
1886. 0here reliable and co+ent state%ents5
consistent )ith the story of prosecution5 are on
record5 %erely because the police officers ha(e failed
to perfor% their duties in accordance )ith the
re=uire%ents of la)5 and there has been so%e defect
in the in(esti+ation5 it )ill not enure to the benefit of
the accused persons to the eBtent that they )ould be
entitled to an order of ac=uittal on this +round. >.ef."
>2010? 9 & 567 . $uniappan (. &tate of 4a%il
2adu?.
1887. Before this court5 the appellants ha(e
contended that the in(esti+atin+ officer failed to %a-e
s-etch of the ha%%er )hich )as reco(ered. 4he
in(esti+atin+ officer also failed to send the ha%%er for
opinion of the doctor )ho conducted the port1%orte%.
4he appellants ha(e also challen+ed the testi%ony of
)itnesses of last seen to+ether5 on the +round that no
43! of the appellants )as conducted.
1888. 3n S(2a+a$ =(os( >supra?5 these (ery
ob*ections )ere raised. 3n para 405 the &upre%e
ourt obser(ed that e(ery discrepancy in
in(esti+ation does not )ei+h )ith the court to the
eBtent that it necessarily results in ac=uittal of the
accused. 4he &upre%e ourt noted that the
discrepancies pointed out in the case )ere lapses of
i%%aterial conse=uence. 4he failure to prepare a site
plan or to send +unny ba+s in )hich the body )as
reco(ered to the ;&8 )as held not to be fatal to the
case of the prosecution in the circu%stances of the
case. 4he &upre%e ourt ad(erted to *udicial
precedents obser(in+ as follo)s"1
CU40. 3n . $uniappan (. &tate of 4.2. Q>2010? 9
& 567 " >2010? 3 & >ri? 1402R this ourt
has clearly stated the principle that the la) on
this issue is )ell settled that the defect in the
in(esti+ation by itself cannot be a +round for
ac=uittal. I" B)#+a'2 #s &#<e% !o s0'( -es#&%e-
o) %e&$#&e%! #%<es!#&a!#o%s o) !o !(e
o+#ss#o%s o) $aBses A2 Be)"0%'!o)2
#%<es!#&a!#o%, !(e "a#!( a%- 'o%"#-e%'e o" !(e
BeoB$e #% !(e ')#+#%a$ 40s!#'e a-+#%#s!)a!#o%
1o0$- Ae e)o-e-. &i%ilar (ie) )as ta-en by
this ourt in &heo &han-ar &in+h (. &tate of
<har-hand Q>2011? 3 & 654 " >2011? 2 &
>ri? 25R )herein the ourt held that the "a#$0)e
o" !(e #%<es!#&a!#%& a&e%'2 !o (o$- a !es!
#-e%!#"#'a!#o% Ba)a-e -oes %o!, #% !(a! <#e1,
(a<e !(e e""e'! o" 1ea;e%#%& !(e e<#-e%'e o"
#-e%!#"#'a!#o% #% !(e 'o0)!. ,s to )hat should
be the )ei+ht attached to such an identification
is a %atter )hich the 'o0)! L1o0$-M -e!e)+#%e
#% !(e Be'0$#a) "a'!s a%- '#)'0+s!a%'es o"
ea'( 'ase. S#+#$a)$2, "a#$0)e !o +a;e
)e"e)e%'e !o !(e FSL #% !(e '#)'0+s!a%'es o"
!(e 'ase #s %o +o)e !(a% a -e"#'#e%'2 #% !(e
#%<es!#&a!#o% o" !(e 'ase a%- s0'( -e"#'#e%'2
-oes %o! %e'essa)#$2 $ea- !o a 'o%'$0s#o%
!(a! !(e B)ose'0!#o% 'ase #s !o!a$$2 0%1o)!(2
o" ')e-#!.G
>@%phasis by us?
1889. 3n >2012? 8 & 2635 'ayal &in+h and #rs. (.
&tate of 6ttaranchal5 the &upre%e ourt dealt )ith
the =uestion of defecti(e or i%proper in(esti+ation
resultin+ fro% the acts of o%ission and/or
co%%ission5 deliberate or other)ise5 of the
3n(esti+atin+ #fficer or other %aterial )itnesses5 )ho
are obli+ed to perfor% certain duties in dischar+e of
their functions and then to eBa%ine its effects. 3n para
195 the &upre%e ourt articulated the follo)in+
issues5 )hich arose in such e(entuality"1
CU19. 2o)5 )e )ill deal )ith the =uestion of
defecti(e or i%proper in(esti+ation resultin+ fro%
the acts of o%ission and/or co%%ission5
deliberate or other)ise5 of the in(esti+atin+
officer or other %aterial )itnesses5 )ho are
obli+ed to perfor% certain duties in dischar+e of
their functions and then to eBa%ine its effects. 3n
order to eBa%ine this aspect in confor%ity )ith
the rule of la) and -eepin+ in %ind the basic
principles of cri%inal *urisprudence5 and the
=uestions fra%ed by us at the (ery outset of this
*ud+%ent5 the follo)in+ points need
consideration"
>i? 0hether there ha(e been acts of o%ission
and co%%ission )hich ha(e resulted in
i%proper or defecti(e in(esti+ation.
>ii? 0hether such default and/or acts of o%ission
and co%%ission ha(e ad(ersely
affected the case of the prosecution.
>iii? 0hether such default and acts )ere
deliberate5 unintentional or resulted fro%
una(oidable circu%stances of a +i(en case.
>i(? 3f the dereliction of duty and o%ission to
perfor% )as deliberate5 then is it obli+atory upon
the court to pass appropriate directions includin+
directions in re+ard to ta-in+ of penal or other
ci(il action a+ainst such officer/)itness.F
1890. 4he &upre%e ourt obser(ed that in findin+ an
ans)er to these =uestions5 the ourts )ould ha(e to
eBa%ine the prosecution e(idence in its entirety5
especially )hen a specific reference to defecti(e or
irresponsible in(esti+ation is noticed in the li+ht of the
facts and circu%stances of a +i(en case. #n the role
of the in(esti+atin+ officer5 in para 21 of 'ayal &in+h
and #rs. (. &tate of 6ttaranchal >supra?5 the court
obser(ed as follo)s"1
CU21. ...,n 3n(esti+atin+ #fficer is co%pletely
responsible and ans)erable for the %anner and
%ethodolo+y adopted in co%pletin+ his
in(esti+ation. 0here the default and o%ission is
so fla+rant that it spea-s (olu%es of a deliberate
act or such irresponsible attitude of in(esti+ation5
no court can afford to o(erloo- it5 )hether it did
or did not cause pre*udice to the case of the
prosecution. 3t is possible that despite such
default/o%ission5 the prosecution %ay still pro(e
its case beyond reasonable doubt and the court
can so return its findin+. But5 at the sa%e ti%e5
the default and o%ission )ould ha(e a
reasonable chance of defeatin+ the case of the
prosecution in so%e e(ents and the +uilty could
+o scot1free. ...F
1891. 3rresponsible in(esti+ation %ay s%ac- of
intentional %ischief to %isdirect the in(esti+ation as
)ell as to )ithhold %aterial e(idence fro% the ourt.
3t cannot be considered either as a case of bona fide
or unintentional o%ission or co%%ission. &uch
conduct is not a case of faulty in(esti+ation si%plicitor
but the case of is an in(esti+ation coloured )ith
%oti(ation or an atte%pt to ensure that the suspect
can +o scot1free. #n this aspect5 in para 26 of 'ayal
&in+h and #rs. (. &tate of 6ttaranchal >supra?5 the
&upre%e ourt has ruled thus"1
CU26. ...'ereliction of duty or carelessness is an
abuse of discretion under a definite la) and
%isconduct is a (iolation of indefinite la).
$isconduct is a forbidden act )hereas
dereliction of duty is the forbidden =uality of an
act and is necessarily indefinite. #ne is a
trans+ression of so%e established and definite
rule of action5 )ith least ele%ent of discretion5
)hile the other is pri%arily an abuse of
discretion. 4his ourt in the case of &tate of
!un*ab and #rs. (. .a% &in+h @B. onstable
Q>1992? 4 & 54R stated that the a%bit of these
eBpressions had to be construed )ith reference
to the sub*ect %atter and the conteBt )here the
ter% occurs5 re+ard bein+ +i(en to the scope of
the statute and the public purpose it see-s to
ser(e. 4he police ser(ice is a disciplined ser(ice
and it re=uires %aintenance of strict discipline.
4he conse=uences of these defaults should
nor%ally be attributable to ne+li+ence. !olice
officers and doctors5 by their profession5 are
re=uired to %aintain duty decoru% of hi+h
standards. 4he standards of in(esti+ation and
the presti+e of the profession are dependent
upon the action of such specialiAed persons. 4he
police %anual and e(en the pro(isions of the
r.!.. re=uire the in(esti+ation to be conducted
in a particular %anner and %ethod )hich5 in our
opinion5 stands clearly (iolated in the present
case. 'r. .2. 4e)ari5 not only breached the
re=uire%ent of adherence to professional
standards but also beca%e instru%ental in
preparin+ a docu%ent )hich5 eB facie5 )as
incorrect and stood falsified by the
uni%peachable e(idence of eye )itnesses
placed by the prosecution on record. ,lso5 in the
sa%e case5 the ourt5 )hile referrin+ to the
decision in .a% Bihari Dada( and #thers (. &tate
of Bihar and #rs. Q>1995? 6 & 31R noticed that
if pri%acy is +i(en to such desi+ned or ne+li+ent
in(esti+ation5 to the o%ission or lapses by
perfunctory in(esti+ation or o%issions5 the faith
and confidence of the people )ould be sha-en
not only in the la) enforce%ent a+ency but also
in the ad%inistration of *ustice.F
CU34. ... 0here the prosecution atte%pts to
%isdirect the trial on the basis of a perfunctory or
desi+nedly defecti(e in(esti+ation5 there the
ourt is to be deeply cautious and ensure that
despite such an atte%pt5 the deter%inati(e
process is not sub1ser(ed. ;or truly attainin+ this
ob*ect of a Lfair trial 5 the ourt should lea(e no
stone unturned to do *ustice and protect the
interest of the society as )ell.F
>@%phasis by us?
1892. 4here are se(eral pronounce%ents of the
&upre%e ourt layin+ do)n the duty of the court in
cases in(ol(in+ faulty in(esti+ations )hich %ust be
referred to. 3n >1972? 3 & 613 &athi !rasad (. 4he
&tate of 6.!.5 the &upre%e ourt held that if the police
records beco%e suspect and in(esti+ation
perfunctory5 it beco%es the duty of the court to see if
the e(idence +i(en in court should be relied upon and
such lapses i+nored.
1893. 3n >2004? 3 & 654 'hana* &in+h G &hera
and #rs. (. &tate of !un*ab5 the &upre%e ourt
noticed the possibility of the in(esti+ation bein+
desi+nedly defecti(e and held thus"
CU3n the case of a defecti(e in(esti+ation the
ourt has to be circu%spect in e(aluatin+ the
e(idence. But it )ould not be ri+ht in ac=uittin+
an accused person solely on account of the
defectN to do so )ould tanta%ount to playin+ into
the hands of the in(esti+atin+ officer if the
in(esti+ation is desi+nedly defecti(e.F
1894. 4he &upre%e ourt enunciated the principles
)ith re+ard to the case of o%ission and co%%ission
on the part of the in(esti+atin+ a+ency in ,3. 1999
& 644 !aras Dada( (. &tate of Bihar holdin+ that if
the lapse or o%ission is co%%itted by the
in(esti+atin+ a+ency5 ne+li+ently or other)ise5 the
prosecution e(idence is re=uired to be eBa%ined5 de
hors such o%issions5 by the court to find out )hether
the said e(idence is reliable or not. 4he conta%inated
conduct of officials should not stand in the )ay of
e(aluatin+ the e(idence by the courts5 other)ise the
desi+ned %ischief )ould be perpetuated and *ustice
)ould be denied to the co%plainant party.
1895. 4he &upre%e ourt has thus cate+orically ruled
that there is no absolute proposition that defecti(e
in(esti+ation )ould necessarily lead to ac=uittal of the
accused person. .eiteratin+ the principles laid do)n
in >1995? 5 & 518 7arnel &in+h (. &tate of $.!. and
latter pronounce%ent in >2004? 10 & 598 .a% Bali
(. &tate of 6ttar !radesh5 the &upre%e ourt
obser(ed that Uin case of defecti(e in(esti+ation the
court has to be circu%spect )hile e(aluatin+ the
e(idence. But it )ould not be ri+ht in ac=uittin+ an
accused person solely on account of the defectN to do
so )ould tanta%ount to playin+ into the hands of the
in(esti+ation officer if the in(esti+ation is desi+nedly
defecti(e .
1896. 3n 'ayal &in+h and #rs. (. &tate of 6ttaranchal
>supra?5 the &upre%e ourt in para 305 obser(ed as
follo)s"1
CU30. 0ith the passa+e of ti%e5 the la) also
de(eloped and the dictu% of the ourt
e%phasiAed that in a cri%inal case5 the fate of
proceedin+s cannot al)ays be left entirely in the
hands of the parties. ri%e is a public )ron+5 in
breach and (iolation of public ri+hts and duties5
)hich affects the co%%unity as a )hole and is
har%ful to the society in +eneral.FF
288. 4hus5 an ob*ecti(e e(aluation of the e(idence placed before
the ourt in e(ery case so as to ensure a fair trial5 has to be effected and a
conclusion arri(ed at )ith re+ard to the +uilt of the person char+ed5 )hich
%ay not necessarily be affected by defecti(e in(esti+ation.
289. ,part fro% the aforesaid i%portant incri%inatin+
circu%stances there is also on record the eBtra *udicial confessions %ade
by accused &her &in+h .ana initially in the !ress onference held by hi%
on 27.07.01 at C'oon !ress lubF and subse=uently after his arrest at !&
'allan)ala to !0187 7ishore ,rora and !0188 ,shish :oyal the
ca%era%an and reporter of C,sian 2e)s 3nternationalF >,23?. 3n his said
!ress onference prior to his arrest by the police he ad%itted before the
reporters and ca%era%en of different ne)s a+encies that he alo+n)ith
.a*ender G .a(inder co%%itted %urder of &%t. !hoolan 'e(i and the
%urderous attac- on t. Balender. 2o doubt a part of his said clai% )as
found to be false later on as .a*ender )as found to be lod+ed in *ail at the
ti%e of incident but his state%ent certainly a%ounts to an eBtra *udicial
confession and thus can not be brushed aside especially in (ie) of the
other incri%inatin+ circu%stances )hich stands pro(ed a+ainst hi% on
record. &i%ilar is the position )ith respect to his second state%ent %ade to
reporters )hile in the custody of police of !& 'allan)ala. 4he la) as
re+ards eBtra *udicial confession is )ell settled. 3n a catena of decisions
/onHble ,peB ourt has obser(ed that there is neither any rule of la) nor
of prudence that e(idence furnished by eBtra *udicial confession can not
be relied upon unless corroborated by so%e other credible e(idence. 3f the
e(idence about eBtra *udicial confession co%es fro% the %outh of such
)itnesses )ho are found to be unbiased and reliable then there is no
reason as to )hy such an eBtra *udicial confession can not be relied upon.
>Re"e)e%'e #% !(#s )e&a)- +a2 Ae (a- o% FAA-0$ =(a%# 9s. S!a!e o"
U.PG. AIR 1,3, SC 274 a%- FS!a!e o" U.P. 9s. ?.@. A%!(o%2G, AIR
15., SC, 45 ?.
290. 3n this re+ard the deposition of !0187 7ishore ,rora5 !0188
,shish :oyal and that of !0189 .a*esh &har%a are i%portant to note.
291. Both !0187 7ishore ,rora and !0188 ,shish +oyal the
ca%era%an and reporter fro% C,sia 2e)s 3nternationalF >,23? stated that
they inter(ie)ed accused &her &in+h .ana )hile he )as in the custody of
police of !& 'allan)ala at !& 'allan)ala itself but they further stated that
at that ti%e beside the% no one else )as present in the roo%. 4hey
specifically denied the presence of police officials in the roo%. ertainly
these independent )itnesses fro% such a reputed ne)s a+ency can not be
attributed any obli=ue %oti(e in deposin+ falsely a+ainst accused &her
&in+h .ana. ertainly they )ere also not in a position of any authority =ua
accused &her &in+h .ana and thus the said confession %ade to the% by
&her &in+h .ana e(en thou+h )hile bein+ in police custody is not
inad%issible in la) and rather a%ount to an eBtra *udicial confession. 4his
certainly act as an additional incri%inatin+ circu%stance )hich stands
pro(ed a+ainst accused &her &in+h .ana.
292. 4he deposition of !0189 .a*esh &har%a5 staff reporter of
C'oon 9alley $ailF stands on a %uch better footin+. /e stated that he
inter(ie)ed &her &in+h .ana in the C'oon !ress lubF before he )as
arrested by the police. /e further stated that reporters fro% a nu%ber of
ne)spapers )ere inter(ie)in+ &her &in+h .ana at that ti%e. 4o hi% also
&her &in+h .ana ad%itted that he has -illed &%t. !hoolan 'e(i.
293. #nce a+ain 3 ha(e been unable to find any circu%stance
)hich could ha(e pro%pted these independent )itnesses i.e. reporters and
ca%era%an fro% (arious ne)s a+encies to depose falsely a+ainst
accused &her &in+h .ana. 2othin+ %aterial could e(en co%e out in their
cross1eBa%ination )hich could sho) that these )itnesses )ere deposin+
falsely in any %anner. 3 thus find these )itnesses to be reliable and their
deposition to be co+ent and con(incin+.
294. 3n the aforesaid facts and circu%stances5 3 a% of the
considered opinion that the t)o eBtra *udicial confessions %ade by
accused &her &in+h .ana initially at the !ress onference held at C'oon
!ress lubF and subse=uently at !& 'allan)ala are stron+ corroborati(e
piece of e(idence lendin+ support to the other incri%inatin+ circu%stances
)hich already stands pro(ed a+ainst hi%.
295. ,t this sta+e it )ill be )orth)hile to note do)n certain
decision of /onHble ,peB ourt re+ardin+ applicability of &ection 106
@(idence ,ct especially in cases based on circu%stantial e(idence or as
re+ard the effect of ta-in+ false plea by an accused.
296. 3n the case Ra;es( @0+a) a%- O)s. <. S!a!e /S0B)a3
Ho%NA$e De$(# H#&( Co0)! !oo; %o!e o" so+e s0'( -e'#s#o%s o"
Ho%NA$e S0B)e+e Co0)! as 0%-e).
/&ho*gh the said decisions are in res)ect o last seen evidence b*t the
observations o .on:ble S*)reme -o*rt are still relevant over here3.
C337. 3n <oseph &/o 7oo(eli !oulo (. &tate of 7erala
2000 ri8< 2467 >&?N the facts )ere that the
deceased )as an e%ployee of a school. 4he
appellant representin+ hi%self to be the husband of
one of the sisters of :racy5 the deceased5 )ent to the
&t. $aryHs on(ent )here she )as e%ployed and on
a false preteBt that her %other )as ill and had been
ad%itted to a hospital too- her a)ay )ith the
per%ission of the &ister in char+e of the on(ent5
!015. 4he case of the prosecution )as that later the
appellant not only raped her and robbed her of her
orna%ents5 but also laid her on the rail trac- to be run
o(er by a passin+ train. 3t )as also found as a fact
that the deceased )as last seen ali(e only in his
co%pany5 and that on infor%ation furnished by the
appellant in the course of in(esti+ation5 the *e)els of
the deceased5 )hich )ere sold to !0111 by the
appellant5 )ere seiAed. 4here )as clear e(idence to
pro(e that those *e)els )ere )orn by the deceased at
the ti%e )hen she left the on(ent )ith the appellant.
0hen =uestioned under &ection 313 r.!..5 the
appellant did not e(en atte%pt to eBplain or clarify the
incri%inatin+ circu%stances inculpatin+ and
connectin+ hi% )ith the cri%e by his ada%ant attitude
of total denial of e(erythin+. 3n the bac-+round of
such facts5 &upre%e ourt held"
M&uch incri%inatin+ lin-s of facts could5 if at all5
ha(e been only eBplained by the appellant5 and
by nobody else5 they bein+ personally and
eBclusi(ely )ithin his -no)led+e. #f late5 courts
ha(e5 fro% the falsity of the defence plea and
false ans)ers +i(en to court5 )hen =uestioned5
found the %issin+ lin-s to be supplied by such
ans)ers for co%pletin+ the chain of incri%inatin+
circu%stances necessary to connect the person
concerned )ith the cri%e co%%itted. 4hat
%issin+ lin- to connect the accused appellant5
)e find in this case pro(ided by the blunt and
outri+ht denial of e(ery one and all the
incri%inatin+ circu%stances pointed out )hich5 in
our (ie)5 )ith sufficient and reasonable certainty
on the facts pro(ed5 connect the accused )ith
the death and the cause for the death of :racy.M
338. 3n .a% :ula% haudhary and #rs. (. &tate of
BiharN ,3. 2001 & 2842 the facts pro(ed at the trial
)ere that the deceased boy )as brutally assaulted by
the appellants. 0hen one of the% declared that the
boy )as still ali(e and he should be -illed5 a chhura
blo) )as inflicted on his chest. 4hereafter5 the
appellants carried a)ay the boy )ho )as not seen
ali(e thereafter. 4he appellants +a(e no eBplanation
as to )hat they did after they too- a)ay the boy. 4he
=uestion arose )hether in such facts &ection 106 of
the @(idence ,ct applied. &upre%e ourt held as
under"
M3n the absence of an eBplanation5 and
considerin+ the fact that the appellants )ere
suspectin+ the boy to ha(e -idnapped and -illed
the child of the fa%ily of the appellants5 it )as for
the appellants to ha(e eBplained )hat they did
)ith hi% after they too- hi% a)ay. 0hen the
abductors )ithheld that infor%ation fro% the
court5 there is e(ery *ustification for dra)in+ the
inference that they had %urdered the boy. @(en
thou+h &ection 106 of the @(idence ,ct %ay not
be intended to relie(e the prosecution of its
burden to pro(e the +uilt of the accused beyond
reasonable doubt5 but the section )ould apply to
cases li-e the present5 )here the prosecution
has succeeded in pro(in+ facts fro% )hich a
reasonable inference can be dra)n re+ardin+
death. 4he appellants by (irtue of their special
-no)led+e %ust offer an eBplanation )hich %i+ht
lead the ourt to dra) a different inference.M
339. 3n &ahade(an alias &a+ade(an (. &tate
represented by 3nspector of !olice5 hennai ,3. 2003
& 2155 the prosecution established the fact that the
deceased )as seen in the co%pany of the appellants
fro% the %ornin+ of $arch 55 1985 till at least 5 p.%.
on that day )hen he )as brou+ht to his house5 and
thereafter his dead body )as found in the %ornin+ of
$arch 65 1985. 3n the bac-+round of such facts
&upre%e ourt obser(ed"
ET(e)e"o)e, #! (as Ae'o+e oA$#&a!o)2 o% !(e
aBBe$$a%!s !o sa!#s"2 !(e 'o0)! as !o (o1,
1(e)e a%- #% 1(a! +a%%e) 9a-#<e$0 Ba)!e-
'o+Ba%2 1#!( !(e+. T(#s #s o% !(e B)#%'#B$e
!(a! a Be)so% 1(o #s $as! "o0%- #% !(e
'o+Ba%2 o" a%o!(e), #" $a!e) "o0%- +#ss#%&,
!(e% !(e Be)so% 1#!( 1(o+ (e 1as $as! "o0%-
(as !o eCB$a#% !(e '#)'0+s!a%'es #% 1(#'(
!(e2 Ba)!e- 'o+Ba%2. I% !(e #%s!a%! 'ase !(e
aBBe$$a%!s (a<e "a#$e- !o -#s'(a)&e !(#s o%0s.
I% !(e#) s!a!e+e%! 0%-e) Se'!#o% 313 C).P.C.
!(e2 (a<e %o! !a;e% a%2 sBe'#"#' s!a%-
1(a!soe<e)E.
297. ,s re+ards false defence ta-en by an accused5 it )as further
obser(ed in the case CS1aBa% Pa!)a a%- O)s. 9s. S!a!e o" W.B.5 >1999? 9
& 242 &upre%e ourt as under"
M3t is )ell settled that in a case of circu%stantial
e(idence )hen the accused offers an
eBplanation and that eBplanation is found to be
untrue then the sa%e offers an additional lin- in
the chain of circu%stance to co%plete the chain.
,pplyin+ the aforesaid principle5 )e ha(e no
hesitation to hold that the circu%stances
established in the case co%plete the chain of
circu%stances to pro(e the char+e of %urder
a+ainst the appellant &)apan !atra and5
therefore5 the con(iction of appellant &)apan
!atra has to be upheld under &ection 302 3!.
&o far as the other t)o appellants are
concerned5 as stated earlier5 in the absence of
any positi(e e(idence e(en about their presence
in the house at the rele(ant point of ti%e5 it is
difficult to rope the% in e(en if all other
circu%stances narrated earlier are established
and5 therefore5 they are entitled to an order of
ac=uittal.M
346. 3n the decision reported as State of Maharashtra v.
Suresh, >2000? 1 & 4715 &upre%e ourt held as
under "1
M3t is re+rettable that the 'i(ision Bench had
practically nullified the %ost for%idable
incri%inatin+ circu%stance a+ainst the accused
spo-en to by !0 22 'r. 2and 7u%ar. 0e ha(e
pointed out earlier the in*uries )hich the doctor
had noted on the person of the accused )hen he
)as eBa%ined on 25.12.1995. 4he si+nificant
i%pact of the said incri%inatin+ circu%stance is
that the accused could not +i(e any eBplanation
)hatsoe(er for those in*uries and therefore he
had chosen to say that he did not sustain any
such in*ury at all. 0e ha(e no reason to
disbelie(e the testi%ony of !0 22 'r. 2and
7u%ar. , false ans)er offered by the accused
)hen his attention )as dra)n to the aforesaid
circu%stance renders that circu%stance capable
of inculpatin+ hi%. 3n a situation li-e this such a
false ans)er can also be counted as pro(idin+ Ma
%issin+ lin-M for co%pletin+ the chain.M
298. 4he net result of the aforesaid discussion is that the
prosecution has been able to pro(e that accused &her &in+h .ana )ho
)as present at the house of &%t. !hoolan 'e(i since %ornin+ on 25.07.01
)as found absent ri+ht fro% the ti%e of incident and that the assailants
used his ar in fleein+ a)ay fro% the spot. 4hese circu%stances coupled
)ith non1furnishin+ of any eBplanation by accused &her &in+h .ana as
re+ards his presence or the circu%stances in )hich his ar 2o. 3$1907
ca%e to be used by the assailants is in itself sufficient to dra) the
conclusion that accused &her &in+h .ana )as either one of the t)o
assailants )ho fired at &%t. !hoolan 'e(i and t. Balender or )as their
third acco%plice )ho dro(e a)ay ar 2o. 3$1907 facilitatin+ the escape
of t)o shooters. 4he aforesaid conclusion further +ets support fro% the fact
that accused &her &in+h .ana thereafter on 25.07.01 and 26.07.01 )as
found to be stayin+ at hotels in /arid)ar and .ishi-esh .oad5 /arid)ar
under false na%es. 4he fact that he si+ned the re+ister of hotel C!ra%ilaF
as ,noop &in+h clearly pro(es this act of abscondance and hidin+ by
accused &her &in+h .ana beyond all reasonable doubts. 4he t)o eBtra
*udicial confessions %ade by accused &her &in+h .ana at the !ress
onference at C'oon !ress lubF and at !& 'allan)ala pro(ides yet
another lin- to the circu%stantial chain of circu%stances. 4he false plea of
defence ta-en by accused that he )as ille+ally detained by the police fro%
the spot itself alon+)ith all other persons present in the house and )as
later sho)n to ha(e been arrested after t)o days fro% 'ehradun operates
as yet another incri%inatin+ circu%stance a+ainst hi%.
299. 4hus the aforesaid incri%inatin+ circu%stances )hich stands
pro(ed on record a+ainst accused &her &in+h .ana for% such a
continuous and co%plete chain of incri%inatin+ circu%stances )hich are
eBplainable only on one hypothesis )hich is consistent )ith the +uilt of
accused &her &in+h .ana only and is not eBplainable on any other +round
%uch less bein+ consistent )ith the innocence of accused &her &in+h
.ana.
300. ,t this sta+e5 3 %ay also %ention that on one of the t)o
re(ol(ers reco(ered fro% ar 2o. 3$1907 the chance prints lifted tallied
)ith that of accused &her &in+h .ana but 3 a% not touchin+ the said issue
as the said aspect is not free fro% doubts as has already been discussed
by %e in the case =ua accused 'han !ar-ash.
301. ,n i%portant =uestion )hich %ay arise in the facts and
circu%stances of the case is )ho )ere the other associates of accused
&her &in+h .ana )ho either fired at &%t. !hoolan 'e(i and at t.
Balender or dro(e a)ay ar 2o. 3$1907 facilitatin+ the escape of the t)o
assailants fro% the spot. ,s already discussed =ua the case of accused
&he-har &in+h and 'han !ar-ash5 the prosecution has failed in
establishin+ beyond reasonable doubts that they )ere in(ol(ed in the
present conspiracy in any %anner %uch less in the actual shootin+
incident. /o)e(er it is clear for% the o(erall facts and circu%stances of the
case that there )ere indeed three persons in(ol(ed in the actual shootin+
incident and out of the% )hile t)o fired to)ards &%t. !hoolan 'e(i and t.
Balender5 the third dro(e a)ay ar 2o. 3$1907 facilitatin+ the escape of
the t)o shooters fro% the spot.
302. 3t is thus clear that the %urder of &%t. !hoolan 'e(i or the
%urderous attac- upon t. Balender )as carried out by accused &her
&in+h .ana in furtherance of co%%on intention shared by his t)o other
acco%plice )hose identity thou+h other)ise could not be established by
the prosecution in the present case.
303. 3n (ie) of %y aforesaid discussion it is thus clear that thou+h
any conspiracy to co%%it %urder of &%t. !hoolan 'e(i or that of t.
Balender ha(in+ been hatched by accused &her &in+h .ana alon+)ith
other co1accused persons could not be pro(ed by the prosecution but at
the cost of repetition 3 %ay state that the +uilt of accused &her &in+h .ana
=ua the %urder of &%t. !hoolan 'e(i and his act of atte%ptin+ to co%%it
%urder of t. Balender in furtherance of co%%on intention shared by hi%
)ith t)o other persons stand a%ply pro(ed beyond shado)s of all
reasonable doubts. /o)e(er as it could not be conclusi(ely established as
to )hether accused &her &in+h .ana )as a%on+st the t)o shooters )ho
fired at &%t. !hoolan 'e(i and t. Balender or )as the dri(er of car no.
3$ 907 in )hich the t)o shooters fled a)ay fro% the spot soon after the
incident so in these circu%stances it can not be presu%ed that accused
&her &in+h .ana )as in possession of any unlicensed ar% %uch less he
used it in the incident in =uestion. 4he char+es for the offence u/s 25
>1B?/27 ,r%s ,ct5 1959 thus does not stand pro(ed a+ainst hi% beyond
shado)s of reasonable doubts.
304. &i%ilarly as the char+e of conspiracy could not be pro(ed
so accused &her &in+h .ana cannot be held +uilty e(en for the offence u/s
193/419/468/471 3! r/) section 120B 3! or for the offence u/s 25/27
,r%s ,ct5 1959 r/) section 120B 3! for )hich char+es )ere fra%ed
a+ainst hi%.
305. /o)e(er prosecution has been successful in pro(in+ its case
a+ainst accused &her &in+h .ana for the offence u/s 302/34 3! and
section 307/34 3! i.e. for co%%ittin+ %urder of &%t. !hoolan 'e(i and for
atte%ptin+ to co%%it %urder of t. Balender beyond shado)s of all
reasonable doubts.
F#%a$ -e'#s#o%
306. 4hou+h the char+es as fra%ed by5 the then5 8d. !redecessor
of this court are under (arious heads but the pri%ary char+e fra%ed
a+ainst all the accused persons eBcept accused 7esha( hauhan is for
the offence u/s 120B 3! r/) section 302/193/419/468/471 3! and
section 25/27 ,r%s ,ct r/) section 120B 3!. /o)e(er as already
discussed the factu% of there bein+ any conspiracy a%on+st (arious
accused persons could not be pro(ed by the prosecution at all so all the
accused persons na%ely5 &her &in+h .ana5 &he-har &in+h5 .a*bir &in+h5
.a*ender &in+h5 'han !ar-ash5 9i*ay &in+h5 &urender &in+h 2e+i5
!ar(een $ittal5 ,%it .athi and &har)an 7u%ar stands ac=uitted for the
said offence i.e offence u/s 120B 3! r/) section 302/193/419/468/471 3!
and section 25/27 ,r%s ,ct.
307. har+e for the offences u/s 302/307/34 3! )as also fra%ed
a+ainst accused &he-har &in+h5 .a*bir and 'han !ar-ash and they all
stand ac=uitted for the said offences also.
308. har+e for the offences u/s 419/468 3! and section 471
3! r/) section 468 3! )as fra%ed a+ainst accused .a*bir and he stand
ac=uitted for the said offences.
309. , separate char+e for the offence u/s 307 3! and for the
offence u/s 25 >1B?/27 ,r%s ,ct )as fra%ed a+ainst accused 'han
!ar-ash and he stand ac=uitted for the said offences.
310. har+e for the offences u/s 419/468 3! )as also fra%ed
a+ainst accused &urender &in+h 2e+i and he too stand ac=uitted for the
said offences.
311. har+e for the offence u/s 25 >1B?/29 ,r%s ,ct5 1959 )as
fra%ed a+ainst accused !ar(een $ittal and he stand ac=uitted for the said
offences.
312. har+e for the offence u/s 25 >1B?/29 ,r%s ,ct5 1959 )as
fra%ed a+ainst accused ,%it .athi and he stand ac=uitted for the said
offences.
313. har+e for the offence u/s 25/27 ,r%s ,ct5 1959 and
separate char+e for the offences u/s 419/468 3! and 193 3! )as also
fra%ed a+ainst accused &har)an 7u%ar and he stand ac=uitted for the
sa%e.
314. har+e for the offence u/s 201 3! )as fra%ed a+ainst
accused 7esha( hauhan and he stand ac=uitted for the sa%e.
315. har+e for the offence u/s 193 3! and for the offence u/s 25
>1B?/27 ,r%s ,ct )as also fra%ed a+ainst accused &her &in+h .ana and
he stand ac=uitted for the said offences.
316. Ho1e<e) B)ose'0!#o% (as Aee% s0''ess"0$ #% B)o<#%& #!s
'ase a&a#%s! a''0se- S(e) S#%&( Ra%a "o) !(e o""e%'es 06s
302630,634 IPC so (e #s a''o)-#%&$2 'o%<#'!e- "o) !(e sa#- o""e%'es.
317. ;or a ready reference the final decision as %entioned abo(e
is bein+ reproduced in a tabular for% hereunder"1
S.
No
Na+e o"
a''0se-
CHAR=ES FRA?ED F#%a$ De'#s#o%
/I3 /II3 /III3 /I93
1 &her &in+h
.ana G &heru
G !an-a*
6/s 1201B r/) &ec.
302/ 193/ 419/ 468/
471 3!
and &ec. 25/ 27 of
,r%s ,ct
6/s 302/
307 r/)
&ec. 34
3!
6/s 193
3!5 6/s
302/307
r/) &ec.
34 3!
E25>1B? /
27
,r%s ,ct
Co%<#'!e- for the
offence u/s 302/
307/ 34 3!
A'>0#!!e- for the
offences u/s 120B
r/) &ec. 193/419/
468/471 3! and
&ec. 25/27 ,r%s
,ct and for the
offences u/s 193
3! and for the
offence u/s
25>1B?/ 27 ,r%s
,ct
2 &he-har &in+h
!an)ar
6/s 1201B r/) &ec.
302/ 193/ 419/ 468/
471 3! E &ec.
25/27 of ,r%s ,ct
6/s 302/
307 r/)
&ec. 34
3!
6/s
302/307
r/) &ec.
34 3!
A'>0#!!e- for all
offences
3 .a* Bir &in+h 6/s 1201B r/) &ec.
302/ 193/ 419/ 468/
471 3! E &ec. 25/
27 of ,r%s ,ct
6/s 302/
307 r/)
&ec. 34
3!
6/s 419/
468 E 6/s
471 r/)
&.468
3!
6/s
3025307
r/) &ec.
34 3!
A'>0#!!e- for all
offences
4 .a*ender &in+h
G .a(inder
&in+h
6/s 1201B r/) &ec.
302/ 193/ 419/ 468/
471 3!
and &ec. 25/ 27 of
,r%s ,ct
A'>0#!!e- for all
offences
5 'han !ar-ash
G 9ic-y G
'heera*
6/s 1201B r/) &ec.
302/ 193/ 419/ 468/
471 3!
and &ec. 25/ 27 of
,r%s ,ct
6/s 302/
307 r/)
&ec. 34
3!
6/s
302/307
r/) &ec.
34 3!
6/s 307
3!5 25
>1B?/27
,r%s
,ct
A'>0#!!e- for all
offences
6 9i*ay &in+h
.ana G .a*u
6/s 1201B r/) &ec.
302/ 193/ 419/ 468/
471 3!
and &ec. 25/ 27 of
,r%s ,ct
A'>0#!!e- for all
offences
7 &urender &in+h
2e+i G &uri
6/s 1201B r/) &ec.
302/ 193/ 419/ 468/
471 3!
and &ec. 25/ 27 of
,r%s ,ct
6/s 419/
468 3!
A'>0#!!e- for all
offences
8 !ar(een $ittal 6/s 1201B r/) &ec.
302/ 193/ 419/ 468/
471 3!
and &ec. 25/ 27 of
,r%s ,ct
25 >1B?
,r%s ,ct
r/) &ec.
29 ,r%s
,ct
A'>0#!!e- for all
offences
9 ,%it .athi 6/s 1201B r/) &ec.
302/ 193/ 419/ 468/
471 3!
and &ec. 25/ 27 of
,r%s ,ct
25 >1B?
,r%s ,ct
r/) &ec.
29 ,r%s
,ct
A'>0#!!e- for all
offences
11 &har)an 7u%ar 6/s 120B r/) &ec. 302/ 193/ 419/ 468/ 471 3! and
u/s 25/ 27 ,r%s ,ct and 419/ 468/ 193 3!
A'>0#!!e- for all
offences
10 7esha(
hauhan
6/s 201 3! A'>0#!!e- for
offence u/s 201
3!
ANNOUNCED IN THE OPEN COURT /BHARAT PARASHAR3
TODAD #.e. 05.05.2014 A--#!#o%a$ Sess#o%s J0-&e-01
Ne1 De$(# D#s!)#'!
Pa!#a$a Ho0se Co0)!s
Ne1 De$(#

Phoolan Devi Murder Case Judgement

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IN THE COURT OF SH.

BHARAT PARASHAR, ASJ-01,

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