IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, BENCH AT JAIPUR JUDGMENT 1. D.B. CRIMINAL APPEAL No.780/01 (Ankush Wadhwa V/s. The State of Raj.) 2. D.B. CRIMINAL APPEAL No.798/01 (Dwarka Prasad V/s. The State of Raj.) D. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 29-9-2001 in Sessions Case No.36/2001 passed by Shri Kailash Chand Sharma, RHJS, Additional Sessions Judge No.4, Kota. Date of Judgment : November ____ 2008. HON'BLE MR. JUSTICE R.C. GANDHI HON'BLE MR. JUSTICE R.S. CHAUHAN Mr. S.R. Bajwa, Senior Advocate along with Mr. Vivek Bajwa & Mr. Ved Vishnoi, for Appellant No1. Mr. A.K. Gupta along with Mrs. Alka Bhatnagar for Appellant No.2. Mr. Y.K. Saxena for the CBI. Mr. Muninder Singh for the Complainant. BY THE COURT: (Per R. S. Chauhan J.) A damaged car, an injured young man inside the car, a dead body of a young lady lying beyond a wall, not far from the damaged car, allegations of kidnapping, murder and destruction of evidence, defense of accident, the conviction of both the appellants for various offences are the different strands weaving the tapestry of this case. The appellants, Ankush Wadhwa (“A-1”, for short) and Dwarka Prasad (“A-2”, for short) have challenged the judgment dated 29.09.2001, passed by the Additional Sessions Judge, No. 4, Kota whereby the appellants have been convicted and sentenced as under :- Ankush Wadhwa (A-1) Offences Sentence U/s.302 IPC Life Imprisonment alongwith a fine of Rs.2,000/-, in default thereof rigorous imprisonment for six months. U/s.363 IPC Five years rigorous imprisonment alongwith a fine of Rs.500/-, in default thereof rigorous imprisonment for three months. U/s.201 IPC One year rigorous imprisonment alongwith a fine of Rs.500/-, in default thereof rigorous imprisonment for three months. U/s.120-B r/w 201 IPC Three months rigorous imprisonment alongwith a fine of Rs.500/-, in default thereof rigorous imprisonment for three months. Dwarka Prasad (A-2) U/s.119 IPC Simple imprisonment for three years U/s.201 IPC One year simple imprisonment alongwith a fine of Rs.500/-, in default thereof simple imprisonment for three months. U/s.217 IPC One year simple imprisonment. U/s.120-B r/w 201 IPC Three months rigorous imprisonment alongwith a fine of Rs.500/-, in default thereof three months rigorous imprisonment 2. The facts of the case are that on 20.05.1998, at 9:00 PM, Mr. Zile Singh Rana (P W 18) lodged a written report (Ex P 122) at Police four feet nine inches tall, wheatish complexioned, round faced, having short hair, wearing blue pant and blue checkered top, and wearing sandals of maroon color, left their house around 2:00 PM and went to NIIT, an institute for computer training, for doing a computer course. She has not returned back home. Therefore, he requested the police to search for her. He further stated that she was carrying a file and was wearing a wrist watch when she left the house.” (English translation of the written report) 3. According to the prosecution, having lodged the missing report, Mr. Zile Singh (P.W.18) started searching for his daughter. According to Mr. Zile Singh having lodged the missing report, he spoke to the Superintendent of Police, Mr. Rajeev Dashot. He also spoke to his neighbor, Mr. Satyapal Singh (P.W.56) who was also the SHO of Police Station Vigyan Nagar, Kota. Thereafter, Mr. Zile Singh and Mr. Satyapal Singh went out looking for Neelu Rana. They first went to the house of one Mr. Vishal and then to the house of a “computerwala”. However, neither of these two persons could tell them anything about the whereabouts of Neelu Rana. He further claimed that when he called his house, his other daughter, Neha Rana (P.W.47) told him that Neelu Rana had gone with A-1. When he asked her about the residential address of A-1, she told him that he lives somewhere near the Sophia School. Thereafter, he and Satyapal Singh searched for the house of A-1 near the Sophia School. While they were looking for the said house, around 10:00 PM, Mr. Satyapal Singh received a wireless message, in his police jeep, that one Mr. Kan Singh (P.W.23), ASI, Police Station, Khaitoon has brought a dead body of a girl to the mortuary at M.B.S. Government Hospital. Therefore, Mr. Zile Singh and Mr. Satyapal Singh rushed to the Government Hospital. At the Hospital, Mr. Zile Singh identified the dead body as the body of his daughter, Neelu Rana. They also met Mr. Kan Singh who told them that he had recovered the dead body of Neelu Rana from the jungle situated at Dhad Devi – Motipura Road. According to Mr. Kan Singh, the dead body was laying forty-five steps away from a wall. 4. Thereafter, around 2:30 AM, Mr. Zile Singh submitted a written report (Ex.P.123) at Police Station Nayapura wherein he claimed that “His daughter, Neelu Rana, was student of eleventh class and was studying in the Sophia School. On 20.05.1998, around 2:00 PM, she left the house and went to NIIT institute situated at Aerodrome Circle for doing a computer course. Since she did not come back home by the evening, he submitted a missing report at the Police Station Nayapura”. He further claimed that “he tried to locate his daughter at his own level. He came to know that Mr. Ankush Wadhwa who is the son of Mr. Sunil Wadhwa, the owner of 'Nirala Dant Manjan', and his friends have taken away Neelu Rana”. He further alleged that “while he was searching for his daughter, Mr. Kan Singh, ASI, brought the dead body of Neelu Rana to the MBS Government Hospital. He saw the dead body and spoke to Mr. Kan Singh. Mr. Kan Singh told him that he had discovered the dead body in the jungle situated on the Dhad Devi – Motipura Road. The dead body was discovered thirty steps away from a wall. Body of Neelu Rana showed marks of violence. Ankush Wadhwa and his friends had misbehaved with Neelu Rana. Since she protested their overtures, they killed her and dumped her body in the jungle”. He further alleged that “Ankush Wadhwa pretended that his car had met with an accident and had himself admitted at the R.K. Hospital at Talwandi. He requested that action be taken against Ankush Wadhwa and his friends for having committed the offence of kidnapping and murder.” (English translation of the Report). On the basis of the said report, the police chalked out a formal FIR, FIR No.220/1998 (Ex.P.124) for offences under Sections 363, 366 and 302 IPC and started the investigation. 5. However, while Mr. Zile Singh was searching for his daughter and in between the lodging of the missing report and the formal FIR by him, around 10:00 PM, one Abdul Wahid (P.W.28), who happens to be the driver of A-1’s father, lodged a report at Police Station Khaitoon, Kota wherein he claimed that “he was informed by Babbu Seth manufacturer of 'Nirala Dant Manjan' who told him that his mother had told him that Ankush Wadhwa had met with an accident on the Dhad Devi Road. Upon this information, he and the younger brother of Sethji, Sanuth Bhai Sahib, came from different directions and met on Dhad Devi Road. Mr. Mahaveer was also with me, who told them that Ankush Wadhwa's car is lying on the Dhad Devi – Motipura Road, where Ankush is lying in a jeep. When I saw the person in the jeep, it was Ankush Wadhwa. I picked up Ankush. Later on, he met with Ankush Wadhwa's uncle. Subsequently, they got him admitted in a hospital. At the site of the accident, a dead girl was lying who was wearing pant and shirt. He informed the police that he has come to lodge the said report.” (English translation of the Report). However, as the information was incomplete, the police merely recorded the said information in the Roznamcha (Ex. P. 143). It is pertinent to note that the said report was lodged by Abdul Wahid who was accompanied by A-2. At the relevant time, A-2 was working as a Staff Officer in the DIG Office, Kota Range. 6. According to the prosecution, after receiving the said information, Mr. Kan Singh (P.W.23), Abdul Wahid (P.W.28) and A-2 along with few other policemen left for the scene of the accident. The prosecution further claims that under the instruction of A-2, the dead body was removed and transported to the hospital by Mr. Kan Singh (P.W.23). It is further claimed that while at the scene of the crime, A- 2 had called a photographer, Anand Kumar (P.W.3) and had the dead body and the damaged car photographed. According to Mr. Kan Singh (P.W.23), he had recovered certain objects such as a bracelet, pieces of broken hair clip, lady shoes and a 'Pana' (a ranch). Once the body was transported to the hospital, Mr. Kan Singh met Mr. Zile Singh who identified the body as his daughter. 7. On the next day of the incident, on 21.05.1998 the investigation of the case was handed over to Mr. Satyapal Singh (P.W. 56) who happens to be the SHO, Vigyan Nagar and also happens to be the neighbor of the complainant, Mr. Zile Singh. However, on 23.05.1998, the investigation was taken from Mr. Satyapal Singh and was handed over to the CID (CB). The said investigation was carried out by Mr. Shiv Prasad Sharma (P.W.59). Subsequently, on 05.06.1998, the case was transferred to the CBI for further investigation. Mr. Anil Kumar Ohri (P.W. 62) carried on the investigation for the CBI. 8. After a thorough investigation, the CBI filed a charge sheet against A-1 for offences under Sections 302, 201, 120-B read with Section 363 IPC. It also filed a charge sheet against A-2 for offences under Sections 120-B read with Section 201, 119 and 217 IPC. Eventually, on 04.05.2001, A-1 was charged for offences under Sections 363, 302, 201 and 120-B read with Section 201 IPC. On 07.05.2001, A-2 was charged for offences under Sections 119, 201, 217 and 120-B read with Section 201 IPC. Both the accused persons denied the charges and claimed trial. In order to prove its case, the prosecution examined sixty-two witnesses and submitted 210 documents. In his defense, A-1 examined four witnesses; A-2 examined three witnesses in his defense. The defense also submitted fifty-six documents. After going through the oral and documentary evidence, the learned trial Judge convicted and sentenced the appellants as mentioned above. Hence, these appeals before this Court. As both the appeals challenge the same impugned judgment, they are being decided by this common judgment. 9. We shall first deal with the case of A-1. Since the case is based on circumstantial evidence, the learned Trial Court had relied upon the following circumstances in order to convict A-1: Firstly, according to the testimony of Neha Rana (P.W.47), Neelu Rana was last seen alive in the company of A-1. Secondly, injuries were found on the body of the deceased. Thirdly, injuries were found on the body of A-1. Fourthly, blood group “A” was found present in the blood stained soil from the scene of the crime. The learned trial Court, therefore, concluded that the deceased must have belonged to the “A” blood group. Fifthly, blood group “A” was also found present on the clothes worn by A-1. Sixthly, blood group “A” was also found in the Rexene pieces recovered from the roof of the car. Seventhly, A-1 had failed to give a proper explanation for the injuries sustained by him. Eighthly, he had also failed to give a proper explanation about the death of Neelu Rana. Lastly, he had taken a false plea of alibi in his defense. Mr. S.R. Bajwa, Senior Advocate, and the learned counsel for A-1, has raised a plethora of contentions before this Court : firstly, the prosecution has come up with three different versions with regard to the death of Neelu Rana: according to the first story, Neelu Rana was kidnapped by A-1 and his friends and was taken to a hotel. There, she was ravished by them; she was killed by them; she was carried in the trunk of the car; she was eventually dumped in the jungle from where her body was recovered by Mr. Kan Singh. According to the second story, Neelu Rana was kidnapped only by A-1, taken to a solitary place on the Dhad Devi – Motipura Road. At that spot, some altercation took place between A- 1 and Neelu Rana. He hit her over the head with a Pepsi bottle made out of glass. She died. According to the third story, while A-1 and Neelu Rana were sitting at a solitary place and were enjoying some snacks, three boys came to the place and started misbehaving with Neelu Rana. They also tried to assault A-1. A-1 panicked and rashly drove of the car. The car met with an accident. Due to the accident, A-1 sustained certain injuries and became unconscious. Subsequently, the body of Neelu Rana was discovered beyond the wall where the car met with an accident. The dead body of Neelu Rana not only showed anti- mortem injuries, but also bore post-mortem burnt injuries. According to the learned counsel, since the prosecution has come up with three different versions of the occurrence, it has shifted its stand. Due to the shifting stand, the prosecution has miserably failed to prove the offences beyond all reasonable doubts against A-1. Secondly, the learned judge has erred in convicting A-1 on the basis of highly unreliable evidence produced by the prosecution. Thirdly, the prosecution has produced seven witnesses, namely Ram Lal (P.W.14), Amar Singh (P.W.32), Ram Gopal (P.W.33), Jagdish (P.W.35), Sumer Singh (P.W.39), Balji (P.W.40) and Bhanwar Lal (P.W.41). These witnesses have probabilized the defense taken by A-1 that he had met with an accident and had become unconscious, and Neelu Rana was killed not by him, but by the three miscreants. According to the learned Counsel, out of these seven witnesses, only two, namely Jagdish (P.W. 35) and Sumer Singh (P. W. 39) have been declared hostile by the prosecution. But, they have been declared hostile since they refused to identify A-1, as the culprit, in the court identification. But the other witnesses, out of seven witnesses named above, have knocked the bottom out of the prosecution story, wherein the prosecution has alleged that only A-1 had committed the murder of Neelu Rana. Fourthly, the prosecution has not only submitted the charge sheet against A-1 and A-2, but has also kept the investigation pending against four persons under Section 173(8) Cr. P. C. Despite the lapse of ten years, the investigation is still pending against these four persons. Thus, according to the prosecution, itself, four more persons were equally involved in committing the crime along with A-1 & A-2. Fifthly, the evidence of “last seen" is based on the testimony of Neha Rana (P.W.47). However, Neha Rana is a concocted witness. She is, thus, an untrustworthy witness. Her being a planted witness is amply clear from the fact that though she is the sister of the deceased, although her earliest statement was recorded by Mr. Satyapal Singh (P.W. 56) on 21.05.1998 i. e, the day after the occurrence, but she did not reveal that the deceased was “last seen” with A-1. Twenty-three days after the date of the incident, these facts came tumbling out in her supplementary statement, by when the investigation had already been transferred to the CBI. Moreover, Mr. Zile Singh in his examination-in-chief claims that while he was searching for Neelu Rana, he had spoken to Neha Rana on the phone, and she had informed him that Neelu Rana had gone with A- 1. But this fact has not been mentioned by him either in the FIR (Ex.P.124) lodged by him at the Police Station, Nayapura, or in his statements recorded under 161 Cr. P. C. (Ex. D. 9 and Ex. D. 10). Thus, according to the learned counsel, since Neha Rana maintained studied silence about the fact of “last seen”, clearly she is an unreliable witness. Sixthly, the prosecution has failed to prove the blood group of the deceased. Although the prosecution claims that it had collected blood stained soil from the place where the body of Neelu Rana was discovered, but this claim is doubtful. For, the body was transported in the night of 20.05.1998 itself, by Mr. Kan Singh. The site plan was drawn up by Mr. Satyapal Singh at 2:30 PM on 21.05.1998. Mr. Satyapal Singh (P.W.56) claims in his testimony that the site plan was made in the presence of Mr. Kan Singh. But Mr. Kan Singh has emphatically denied this fact. In absence of Mr. Kan Singh, no one could have told Mr. Satyapal Singh the exact location from where the body was recovered. Since the place from where the body was removed is unknown, the possibility that the blood stained soil was collected from the right place becomes doubtful. Moreover, whose blood the soil had soaked is unclear. Furthermore, Mr. Anil Ohri (P. W. 62) the Investigating Officer for the CBI, admits that the blood stained clothes of the deceased were recovered, and the same were sent to the Rajasthan State Forensic Science Laboratory at Jaipur. But, subsequently, directions were issued, during the course of trial, that the clothes were to be sent to the CBBM at Hyderabad for blood grouping and DNA testing. The findings of the said testing were intentionally withheld from the court by the prosecution. In fact, according to Mr. Ohri (P. W. 62), the said report was withheld as “it did not buttress the case of the prosecution”. Therefore, adverse inference should be drawn for withholding the said report from the trial court. Hence, the prosecution has not brought any evidence to prove that the blood group of the deceased was, in fact, “A” blood group. Moreover, once the prosecution has failed to prove the blood group of the deceased, the presence of blood group ‘A’ on the clothes of the accused, or on the Rexene would not connect A-1 to the alleged crime. Thus, the learned trial court has misread the evidence on the point of blood group of the deceased. Seventhly, the learned trial Court has erred in placing reliance on the false plea of alibi taken by A-1. According to the learned counsel, A-1 took the plea of alibi, for the first time, in his statement under Section 313 of Criminal Procedure Code. According to him, an accused is not precluded from taking an alternative defense. Although, the accused had pleaded alibi for the first time in his statement under Section 313 of Cr. P. C., but he had built up his defense of accident and assault by miscreants through the cross- examination of the prosecution witnesses. In fact, these two defenses were probablized by seven witnesses produced by the prosecution itself. Moreover, the taking of false plea cannot be the sole ground for conviction. In order to buttress this contention, the learned counsel has relied upon the case of Babu Lal v State of M. P. [(2003) 9 SCC 86]. He has further argued that the falsity of the defense cannot take place of proof. In order to buttress this contention, the learned counsel has relied upon the case of Shankar Lal Gyarsi Lal Dixit v State of Maharashtra [(1981) 2 SCC 35]. He has further contended that even if the defense is not pleaded, the Court can still find out the defense in favor of the accused and can grant the benefit of the said defense. In order to buttress this contention, the learned counsel has relied upon State of U. P. v Ram Swarup and Ors. [AIR 1974 SC 1570] and Pratap Misra and Ors. v State or Orissa [ (1977) 3 SCC 41]. He has also argued that falsity of the defense would not strengthen the prosecution case. In order to support this contention he has relied upon Baldev Raj v State of Himanchal Pradesh [(1980) 2 SCC 564]. According to the learned counsel, in order to succeed, the prosecution must stand on its own legs. In order to buttress this contention, the learned counsel has relied upon Bhagirath v State of Madhya Pradesh [(1976) 1 SCC 20]. Eighthly, the learned counsel has also contended that the accused has taken the defense that the death of Neelu Rana had occurred only because misfortune had fallen upon them while they were sitting and enjoying each other's company. According to him, three boys had attacked them while they were sitting in the car. Therefore, the benefit of exception contained in Section 80 of IPC should have been given to A-1. The fact that a misfortune had fallen upon the accused and Neelu Rana is amply clear from the testimony of Ram Lal (P.W.14), Amar Singh Gochar (P.W.32), Ramgopal (P.W.33), Jagdish (P.W.35), Sumer Singh (P.W.39), Balji (P.W.40), Bhanwar Lal (P.W.41). Although these persons may not have been eye-witness to the assault and to the accident, but nonetheless, they were told by A-1 immediately after the accident, how the accident had occurred. Therefore, their testimonies are relevant under Section 6 of the Evidence Act. On the basis of their testimonies, the existence of accident or misfortune is well established. Thus, the benefit of the said exception should have been given to A-1. Ninthly, the learned counsel has also contended that an alternative defense was suggested in the cross-examination of the seven witnesses named above. This alternative defense, thus, could be culled out from the cross-examination. Although, this defense was not specifically pleaded by the accused in his statement, the said defense was suggested in the cross-examination. Therefore, the accused can take the benefit of the said defense. In order to support this contention, the learned counsel has relied upon the cases of State of U.P. v Lakhmi [(1998) 4 SCC 336], Kashiram and Ors. v State of M.P. [(2002) 1 SCC 71] and Ouseph @ Thankachan v State of Kerala[(2004) 4 SCC 446]. Tenthly, the injuries suffered by the deceased do not bring the case within the ambit of Section 300 IPC. Firstly, the deceased has suffered only nine injuries. Out of these nine injuries, only two injuries are lacerated wounds—one on the head, the other on the right ring finger joint. According to the Post Mortem Report (Ex.P.116) she has suffered lacerated wound of 1” X1/4” x1/2” vertical on the right side of occipital region. According to the said Report, death was caused due to anti-mortem head injury. However, neither the Post- Mortem Report (Ex. P. 116), nor Dr. Y.K. Sharma (P.W.61), who had conducted the post-mortem, states that the said injury on the head was “sufficient in ordinary course of nature to cause the death” of the deceased. Moreover, according to Dr. Y.K. Sharma (P.W.61), injury Nos. 1—an abrasion on the right side of the occipital region, and injury No. 2—the lacerated wound on the occipital region, can be caused by a single blow. Therefore, at best, a single blow was inflicted upon the deceased and that, too, by a blunt object. Further, according to Mr. Satyapal Singh (P.W. 56), Shiv Prasad Sharma (P.W.59) and Anil Kumar Ohri(P.W.62), the Investigating Officers, the blunt object used for committing the alleged murder was never recovered. Therefore, Dr. Y.K. Sharma (P.W.61) was not in a position to state whether the injuries received by the deceased were caused by the particular weapon used by the accused. Hence, the offence of murder is clearly not made out. Eleventh, the prosecution has failed to prove the injuries caused on the body of the appellant. In fact, it is A-1 who has claimed that he has received these injuries in the accident. His claim has been corroborated by Ram Lal (P.W.14), Amar Singh Gochar (P.W.32), Ramgopal (P.W.33), Jagdish (P.W.35), Sumer Singh (P.W.39), Balji (P.W.40), Bhanwar Lal (P.W.41). Moreover, on 20.05.1998 around 5:55 PM, one Mr. Mukesh Solanki had informed Police Station, Udhyog Nagar, Kota that a car had met with an accident at Dhad Devi – Motipura Road. The said information was received