Imtiyaz Murtaza and K.N.Pandey, JJ. - (1.) IMPUGNED here in the above appeals which emanate from Sessions Trial No. 914 of 2002, are the judgment and order dated 20.11.2008, whereby the appellants have been convicted for offences under Sections 302/34 and 120B, I.P.C. in Case Crime No. 831 of 1994 by the Additional Sessions Judge, Court No. 2, Ghaziabad and as a sequel, have been visited with the penalties of death.
(2.) THE incident relates back to the year 1994 in which deceased Neelam was done to death in a very diabolical, gruesome and dastardly manner. It would transpire from the facts on record that initially F.I.R. was lodged by the appellant Sadhu Singh, husband of the deceased, the substance of which was that after the death of his first wife, he had tied nuptial knots with Smt. Neelam, a native of Delhi (Lajpat Nagar) ; that there was complete cordiality between him and deceased for seven years and thereafter, she broke loose and became odious in and around the area as a woman of easy virtue and her conduct manifested that she was leading a dissolute life ; that people of shady characters began to frequent his house in his absence and on the day of occurrence, i.e., in the intervening night of 17/18.8.1994, while he was asleep in his bed and the deceased was lying asleep in the adjacent room, at about 5 a.m., three unknown miscreants intruded into the house and gagged his mouth with wrist roped behind his back. Somehow, he managed to break free and shouted for help by climbing up the stairs which attracted and brought people from neighbourhood. THE people who had collected on his shouting, forced their way into the room and found the neck of the deceased tied with electric wire and also noticed her to be lying supine with marks of injuries on the body of the deceased. Consequent upon the written report, the F.I.R. was registered at Case Crime No. 831 of 1994 mentioning unknown persons as culprits of the crime. THE Investigating Officer commenced investigation the same day and inspected the spot, prepared site plan Ex. Ka-4. He also recovered electric wire and prepared memo Ex. Ka-6. THE Investigating Officer also recovered iron rod which had been forced into the private part of the deceased and was found stuck therein. THE Investigating Officer got the same taken out with the aid of appellant-Sadhu Singh and prepared recovery memo Ex. Ka-7. THE Investigating Officer also prepared Ex. Ka-8 taking into possession bed sheet, pillow, etc. He also collected 18 finger prints from glass, table, double bed, pillow etc. which were placed in order in the room and prepared recovery memo Ex. Ka-13. Upon further investigation, it transpired that the murder had been committed by the appellant Sadhu Singh in league with other co-accused persons namely Vinay Kumar and Jaiveer Singh had committed the dastardly act and in order to inveigle and mislead the investigation into the theme set up by him, lodged the report concocting a theory of miscreants entering the house and committing the murder. On 19.8.1994, on pointing out of the appellant, table fan was recovered the wire of which was made use of in the commission of the offence. THE Investigating Officer prepared recovery memo Ex. Ka-9. THE same day, the Investigating Officer recovered blood smeared shirt of the appellant on his pointing out which it is alleged he was wearing at the time of death. Recovery of Ex. Ka-10 was prepared upon recovery of shirt. THE Investigating Officer also recovered blood stained knife and also shirt which co-accused Sunil was wearing at the time of commission of the crime on the pointing out of co-accused Sunil and prepared recovery memo Ex. Ka-10. Co-accused Jaivir it is alleged could not be apprehended. After his arrest, it is further alleged, he was taken in police remand and on his pointing out blood stained shirt which he was wearing at the time of death was recovered and recovery memo Ex. K-12 was prepared. To compare the finger prints collected from the spot, the finger prints of accused persons it is alleged were taken in the presence of Magistrate on 23.8.1994. THE expert report Ex. Ka-2 was received according to which the finger prints collected from the spot matched with the finger prints of the accused persons. THEreafter charge-sheet Ex. Ka-25 was prepared and submitted in the Court and the case came to be committed to the court of Sessions on 13.9.2002. The appellant denied the charges and claimed to be tried stating that he has been falsely implicated in the case by the police. The prosecution examined P.W. 1 Smt. Nakshatra Kaur mother of the deceased, P.W. 2, Devdutta Sharma brother of the deceased, P.W. 3. Virendra Sharma, P.W. 4, Nand Meera, P.W. 5, Kamaljeet Singh, P.W. 6, Sadho Singh accused-appellant. No other witnesses were produced or examined by any of the parties.
(3.) UPON scrutiny of evidence on record, and also from a glance through the judgment of the trial court, it would transpire that the witnesses examined in the case gave version detracting from the theory set up by the prosecution case and therefore, they were declared hostile. The Sessions Judge entered a verdict of conviction premised on the ground that the recovery was made on the pointing out of the accused. The genuineness of the recovery under Section 294, Cr. P.C., it would appear, was admitted by the counsel for the accused on 5.12.2006. In the endorsement made by the counsel for the defence, it would transpire, except recoveries made in the case, he admitted the genuineness of all the documents. On 12.2.2006, statement of informant/accused Sadhu Singh was recorded as P.W. 6 and the case was fixed for statement under Section 313, Cr. P.C. Thereafter, the Sessions Judge on 17.1.2007 fixed 5.2.2007 for evidence of H. C. Bharpoor Singh, Constable Ashok Kumar and S.I. Subedar Singh, Investigating Officer. The case, thereafter, protracted for a very long time as it continued to be adjourned from date to date on one pretext or the other. Lastly, on 1.8.2008, the Sessions Judge closed the evidence. On 12.8.2008, when the case was fixed for judgment, realisation was borne in on him that the counsel for the appellant had conditionally accepted the genuineness of the documents and therefore, he gave opportunity to the counsel for accepting the documents unconditionally drawing attention to the fact that there was no provision under Section 294, Cr. P.C. for accepting genuineness conditionally. On 25.9.2008, the counsel for defence admitted genuineness. The counsel for the appellants canvassed that the Sessions Judge fell in error in not summoning the police witnesses for proving the documents and in connection with this proposition, placed credence on a Full Bench decision in Saddiq v. State, 1981 Cr LJ 379. Para 14 of the said decision being germane, is excerpted below : "Before concluding, we consider it necessary to point out that the medical evidence in a criminal case is of the utmost importance as the correctness of both ocular and circumstantial evidence produced by the prosecution is tested on its basis. Even if the genuineness of the injury report or the post-mortem report is not disputed by the accused and the reports are read as substantive evidence, it may still be necessary to examine the doctor concerned to clarify his opinion mentioned in the reports or to obtain his opinion on questions of a medical nature which may be involved in the case. This may be done by the trial court by examining him under Section 311, Cr. P.C." ;