Kuldip Singh, J. - (1.) BY this judgment, we will dispose of Criminal Appeal No. 13 -DB of 2012 filed by accused -appellants Ashok Kumar, Kaptan @ Captain, Jai Ram @ Baba, Ravi, Yashwanti, Ajay, Ajay Veer @ Tiny, Manjeet and Kala @ Parmod decided by learned Additional Sessions Judge, Jhajjar vide judgment and order dated 12.11.2011/25.11.2011 whereby they were convicted and sentenced as under:
(2.) JAGBIR Singh PW9 met SI Krishan Kumar (PW -29) on 21.5.2009 sometime before 12.45 a.m. (midnight) and made a statement Ex. P50 in which he stated that he is resident of village Jassaur Kheri. They are five brothers. In the year 2001, on the demand of money for cultivation of land, Vinod s/o Shakti, r/o Bawana, Ajay Veer @ Tiny s/o Ram Kumar, Ajit @ Billu s/o Om Singh had committed the murder of his brother Ranbir. In the year 2003, due to same enmity, his mother Chameli and nephew (sister -in -law's son) Dharmender, r/o village Dighal were murdered by Ram Kumar s/o Paras Ram, Jai Ram @ Baba s/o Ram Kishan, r/o Jassaur Kheri. In the year 2004, a compromise took place between them before the Panchayat but despite the compromise, the said persons were nursing grudge against them. Yesterday i.e. on 19.5.2009 his nephew (sister's son) Shamsher, r/o village Dighal had come to their house. On the next day at about 11.30 a.m. Shamsher went to village Dighal on his motor cycle No. HR -14C -5280. At about 12 noon, an anonymous caller from mobile No. 9812933600, belonging to Shamsher made a phone call on mobile No. 9812817853 belonging to Hari Om, enquiring as to whom said number (9812933600) relates. Hari Om told the anonymous caller that this phone number belong to his sister's son Shamsher. Then said anonymous caller disclosed that four boys of young age, who were riding a car bearing No. DL -7CJ -0376 had hit the motor cycle of Shamsher from backside near the liquor vend of village Luhar Heri. After hitting, the motor cyclist fell down on the road and his mobile also fell down in the bushes. Then all the four boys, who were sitting in the car, picked up the motor cyclist and put him in the car and went towards Jassaur Kheri. On receiving this information, Jagbir Singh complainant alongwith his family members started searching for Shamsher in the hospitals of Kharkhoda, Rohtak, Bahadurgarh and Sampla. As Shamsher was missing, his mother Krishna was also informed at village Dighal, who also started searching for Shamsher but he was not traceable till making of the complaint. Jagbir Singh made a statement that he suspect that on account of old rivalry, Ajay Veer @ Tiny s/o Ram Kumar and Vinod s/o Shakti r/o Bawana have kidnapped Shamsher after hatching a conspiracy with their companions with intention to kill him. Jagbir Singh requested to the police that Shamsher be traced. SI Krishan Singh thereafter recorded the police proceedings and sent to the same to Police Station Sadar, Bahadurgarh where FIR No. 167 dated 21.5.2009 u/s. 364 IPC was registered. On 21.5.2009 at about 7 a.m. the dead body of Shamsher was found near pond of village Mattan. Police prepared site plan Ex. P16 of the place of recovery of dead body. Inquest report was also prepared. Photographs of the dead body were got clicked and the dead body was sent for post mortem.
(3.) DURING the course of investigation, accused Ajay, Kaptan @ Captain, Jai Ram @ Baba and Parveen were arrested on 23.5.2009. Accused Ashok was arrested on 25.5.2009. Accused Ravi was arrested on 28.5.2009. Accused Yashwanti was arrested on 31.5.2009. Accused Ajay Veer @ Tiny was arrested on 13.8.2009. Other accused Manjeet, Parmod @ Kala, Vinod, Tarun @ Kala @ Kadwa were also arrested. 6. On 23.5.2009, accused Parveen made disclosure statement Ex. P24 disclosing the details of the occurrence to the police. On the same day, Ajay Dabas s/o Satbir Singh and Kaptan @ Captain also suffered disclosure statements Ex. P25 and Ex. P26 respectively. 7. On 24.5.2009 accused Ajay @ Kala and Kaptan @ Captain identified the place where on 20.5.2009 their car had struck the motor cycle of deceased Shamsher vide memo Ex. P33. Accused Ajay also led the police party to the place in the forest land of Kikar trees on the southern side of East -West road from village More Kheri to village Kasrehiti where Shamsher was taken out from the car and shot dead by Ajay Veer @ Tiny. Memo Ex. P33/A was prepared. Similarly, on the same day, accused Kaptan @ Captain vide memo Ex. P34/A also demarcated the said place where Shamsher was shot dead by Ajay Veer @ Tiny. On the inspection of the said place, police found an empty cartridge of 9 mm and a live cartridge of 32 bore which alongwith blood stained earth were lifted from the spot and separately sealed vide memo Ex. P35. Site plan of the place of said occurrence Ex. P17 was prepared. 8. During the investigation, accused Tarun @ Kala @ Kadwa suffered a disclosure statement on 18.6.2009 Ex. P46 wherein he disclosed about the details of the crime to the police and their movements thereafter. Accused Parmod @ Kala suffered a disclosure statement Ex. P58 wherein he also disclosed about the details of the crime and about their movements. On 23.10.2009 accused Balraj s/o Mahender also suffered same disclosure statement Ex. P61. Similarly on 10.8.2010, accused Vikas s/o Balwan also suffered a disclosure statement Ex. P60 to the same effect. On 11.8.2010 Manjeet also suffered disclosure statement Ex. P59. Demarcation memos were prepared. 9. On 13.8.2009, accused Tiny @ Ajay Veer was arrested by SI Roop Singh on the bridge of Sidhipur drain alongwith Car No. DL CJ -0376 used in the crime. On the search of the car, 9 mm country made pistol was recovered under the driver seat. The car and pistol alongwith 5 live cartridges were taken into police possession vide recovery memo Ex. P37. 10. On 14.8.2009, accused Ajay Veer @ Tiny also suffered disclosure statement Ex. P38 disclosing about the details of the crime committed by him. At his instance, the place of crime was got identified. 11. During the course of investigation, some call details were taken into police possession. 12. After the completion of investigation, challan was presented against all the above noted 14 accused. 13. All the accused were charged -sheeted under Sections 302/120B/148/364/201 IPC read with Section 149 IPC and accused Ajay Veer @ Tiny was also charge -sheeted under Sections 25 of Arms Act to which the accused pleaded not guilty and claimed trial. 14. In support of its case, the prosecution examined as many as 37 witnesses and thereafter, closed its evidence. 15. When examined under Section 313 Cr.P.C. accused pleaded innocence and claimed that they have been falsely implicated in this case. 16. After hearing the learned counsel for the parties and going through the evidence, the learned Additional Sessions Judge, Jhajjar convicted and sentenced nine accused -appellants whereas five accused, namely, Parveen, Tarun @ Kala @ Kadwa, Vikas, Vijay Kumar and Balraj were acquitted of the charges framed against them. 17. Aggrieved by the said judgment and order of sentence, the appellants have come up in appeal. 18. We have heard learned counsel for the parties and have also gone through the file carefully. 19. On the asking of the Court, Sh. Vinod Ghai, Sr. Advocate with Mr. Veneet Kaushal, Advocate also addressed arguments on behalf of appellants No. 8 and 9. 20. Dr. Madhulika, Medical Officer while appearing as PW2 has stated that the following injuries were found on the dead body of Shamsher Singh at the time of post mortem. (i) Multiple bruises over the anterior abdominal wall and side wall and left lower chest wall. On dissection abdominal viscera found pale and healthy. (ii) B/L chest wall pale and healthy. (iii) There was fracture of left for arm both bone near wrist joint. (iv) Fracture of right humerus bone present. (v) An entry wound of 1.5 cm. Above the tragus of left ear with blackened margins. Margins were inverted the track of which blackened margins. Margins were inverted the track of which traversing upto the exit wound situated at the frontotemporal region of right side. Size of the exit wound 2' -2' cm. Brain matter was coming out from both the exit and entry wounds. Seining of the hairs alongwith fragments of the bone were found in the track. (vi) All other viscera were pail and healthy. 21. In the opinion of the doctor, cause of death was hemorrhagic shock and injury to vital parts (Brain) due to fire arm injury which was ante -mortem in nature. Probable time between injury and death was one hour. The perusal of the medical evidence shows that one gun -shot from close range was fired on the head of the deceased. The margins were inverted and having entry and exit wound. Brain matter was coming out from both the exit and entry wounds. As per prosecution case, motor cycle of Shamsher Singh was intentionally hit by the car of the accused as a result of which he fell down and received some injuries in first part of the occurrence which was sought to be projected as accident. 22. Jagbir, complainant appeared as PW9 and stated that his nephew Shamsher Singh was kidnapped. At that time, his mobile phone fell down at the place where he was kidnapped. Someone picked up the mobile phone and made a call on the mobile phone of his brother Hari Om and enquired from him about the ownership of the mobile phone. The said anonymous caller also told that some car -borne persons have caused accident with the owner of the phone and thereafter picked up the injured motor -cyclist and took him away in their car. He further stated that thereafter, he alongwith his brother Hari Om and Gulabo w/o Hari Om went to the place where motor cycle was lying. Thereafter, Gulabo wife of Hari Om made a telephonic call to her sister -in -law Krishna informing her about the accident of Shamsher and told her to trace him in the hospital of Rohtak and that they were also tracing him in the nearby hospitals. Thereafter, he stated that he had gone to police post Assaudha and made statement Ex. P20 which formed basis of the FIR. In this way, complainant Jagbir has no direct knowledge about the occurrence. He only knew that some anonymous caller had made a call from the mobile phone of Shamsher to his brother Hari Om and after enquiring about the ownership of the mobile, had informed about the accident and occupants of the car picking up the injured in the said car. 23. Next important witness is PW7 Randhir. He stated that Shamsher was kidnapped from village Luhar Heri at about 11.30 a.m. in the morning on 20.5.2009 while he was going towards village Dighal. On 20.5.2009 at about 11.30 a.m. while he was grazing the cattle, he saw Shamsher going towards village Dighal on his motor cycle and Shamsher said RAM RAM to him while driving the said motor cycle. After 2 minutes, a car of white colour came from the side of village Jassaur Kheri. Ashok and Tiny were sitting in that car alongwith other persons. Two motor cycles were also following the car. He could not recognise the persons riding two motor cycles. Two persons were sitting on each motor cycle. The white coloured car hit Shamsher as a result of which Shamsher fell down. Occupants of the car alighted from the car and put Shamsher Singh in the car and then the car went ahead and then turned back and drove towards village Jassaur Kheri. Motor cycle of Shamsher remained lying at the spot. He reached the spot where some other persons had also gathered. He came back to his house and narrated the entire incident to his brother Hari Om. His brother Hari Om and Gulabo telephonically informed Krishna, mother of Shamsher regarding the accident. Hari Om and his wife made enquiries from hospitals but where -abouts of Shamsher could not be traced out. They also searched for Shamsher in the village. Thereafter, the story of kidnapping of Shamsher came to their knowledge. At about 5 p.m. he also went towards the bus stand of Jassaur Kheri where Hari Om, his sister Krishna and relative of his sister from her husband side, namely, Naresh were found murdered. The police was already present there. The dead bodies were taken to the hospital by police. 24. The witness was extensively confronted with the statement Ex. D1 made under Section 161 Cr.P.C. to the police during investigation. It was found that in the said statement, the story of Randhir having witnessed the accident, was not mentioned. It was found that the fact that Shamsher said RAM RAM to him while driving the motor cycle, is missing in the statement Ex. D1. The story of white car following him and hitting the motor cycle of Shamsher and putting him in the car and taking him away, is also missing in statement Ex. D1. The story of his going home and informing Hari Om and Gulabo about the accident, was also found missing in the statement Ex. D1. In this way, statement of Randhir Singh was found to be an improved version over the initial version given to the police. 25. Another witness PW14 Madan who had identified the dead body lying near the Phirni of village pond Mattan, partly turned hostile. Though he identified the dead body of Shamsher but he denied to have witnessed the recovery memo regarding lifting of blood stained earth from the spot. 26. Investigating Officer SI Krishan Kumar, while appearing as PW29 stated about the recording of statement of Jagbir PW9. He stated that he visited the place of occurrence near village Luharheri and took the photographs. One motor cycle bearing registration No. HR -14C/5280 was found lying at the spot and was taken into possession. He also prepared the site plan of the place of occurrence. He further stated that regarding the second occurrence, he had recorded the statement of Gulabo on the basis of which FIR No. 168/2009 was registered. He handed over the investigation in case FIR No. 168/2009 to SI Roop Singh and the investigation of case FIR No. 167/2009 was retained by him. He further stated that he received the information that dead body of Shamsher was lying near the pond of village Mattan. He reached the said pond and called the photographer as well as FSL team. Blood stained earth was lifted from the spot and taken into possession. The photographs were also clicked. Post mortem of the dead body was got conducted. Thereafter, investigation was handed over to another Investigating officer. SI Roop Singh PW27 proved that on 13.8.2009 he had arrested accused Ajay Veer @ Tiny at Sidhipur drain bridge on Delhi -Haryana border alongwith the car used in the present crime. On the search of the car pistol 9 mm loaded with five cartridges was recovered. Sketch of the pistol Ex. P36 was prepared. Pistol and car were taken into police possession vide recovery memo Ex. P37. He also proved that on 14.8.2009 said accused Ajay Veer @ Tiny was taken on police remand and on interrogation he made disclosure statement Ex. P38 and got demarcated the place where the car had hit the motor -cycle of Shamsher; the place where Shamsher was shot dead and the place where the dead body of Shamsher was thrown after the crime. Demarcation memo and site plan in this regard were prepared. 27. Sajjan Kumar, EASI PW17 stated that on 24.5.2009 accused Ajay Veer @ Tiny who had already suffered disclosure statement, demarcated the place from where Shamsher was kidnapped. He prepared demarcation memo Ex. P33. Accused Kaptan also demarcated the said place and memo Ex. P34 was prepared. Then both the aforesaid accused led police party and demarcated the place where Shamsher was murdered. Demarcation memos Ex. P33/A and Ex. P34/A were prepared by SI Chander Singh. From the said place, blood stained earth, 9 mm empty cartridge and one live cartridge 7.65 mm were also recovered which were taken into police possession vide recovery memo Ex. P35. He further proved the recovery of pistol on 13.8.2009 from accused Ajay Veer @ Tiny alongwith his Verna Car Ex. P37 when he was arrested by SI Roop Singh at Sidhipur drain, near Bahadurgarh. SI Chander Singh PW23 stated that on 23.5.2009, he had conducted interrogation of accused in FIR No. 168/2009. Accused Jai Ram @ Baba suffered disclosure statement Ex. P23, accused Parveen suffered disclosure statement Ex. P24, accused Ajay made a disclosure statement Ex. P25. They got demarcated the place where car hit the motor cycle of Shamsher Singh. They also demarcated the place where they had fired gun shots at Shamsher Singh. Accused Kaptan @ Captain also made disclosure statement Ex. P26 on the same footing as accused Ajay. He further stated that on 24.5.2009 accused Ajay @ Kala, accused Kaptan @ Captain led police party to the place where the car had hit the motor cycle. Demarcation memo was also prepared. He further stated that in his presence, accused Ajay @ Kala and Kaptan @ Captain had demarcated the place where Shamsher Singh was shot dead. Demarcation Memos Ex. P33 - A and Ex. P34 -A were prepared. He further proved the recovery of blood stained earth, empty cartridge and live cartridge from the said spot. 28. Regarding the criminal conspiracy, prosecution has examined Balwan PW12. According to PW12 Balwan, he is married at village Mundka in Delhi. On 19.5.2009, he went to his in -laws house at village Mundka for personal work. When he reached near the house of accused Tiny, Ram Kumar, Yashwanti, Tiny, Jai Ram, Kaptan and brother -in -law of Tiny, Manjeet and Kala s/o Bhalle were holding a meeting at the house of Tiny. He heard them while talking in the house. They were talking that Hari Om and Shamsher must be murdered. Accused Kaptan said that if they have committed murder earlier then how they will survive now. Brother -in -law of Tiny said that the arrangement of weapons will be done by Tiny. Tiny said that he had already arranged the weapons. Ram Kumar said that there should not be any type of mistake. Kala stated that they have already committed murder after breaking the lock of house. Manoj also stated that no one should be spared. Balwan PW12 further stated that when he was standing there, they (accused) saw him and thereafter, they left the place. 29. Then there is a statement of PW36 Darshna regarding the criminal conspiracy between Ravi and Ashok. PW36 Darshna stated that on 20.5.2009 at about 10 a.m. Ravi came to the house of his brother and asked Shamsher as to when he will leave for Sampla. Shamsher replied that he will start for Sampla after taking meals. Ravi went on the motor cycle of Shamsher to Sampla. At that time, she was standing on the gate of her house. At that time, accused Ashok was standing in the street. Ravi gave a signal to Ashok and Ashok while laughing went through the street. After half an hour, she noticed Ravi in the street. When she asked Ravi that he had gone to Sampla and what had happened there, Ravi did not reply and went laughing inside his house. After one hour, his brother Hari Om came back from his fields and disclosed that Shamsher has been kidnapped in the car after causing accident. 30. Constable Suresh Kumar, Cyber Cell, Jhajjar appeared as PW26. He brought and proved the call details of mobile No. 9253444709 standing in the name of Satish Kumar Ex. P52/Ex. P52/A, mobile No. 9268343884 standing in the name of Kuldeep, Ex. P53/Ex. P53 -A, 9812933600 standing in the name of Ravinder Ramesh, Ex. P54/Ex. P54 -A, mobile number 9812817853 standing in the name of Hari Om, Kartar Ex. P55 and Ex. P55/A. The call details of mobile No. 9953315649 is Ex. P56. Call details of Mobile No. 9718999004 is Ex. P57. He stated that these were issued by Cyber Cell, Jhajjar. No objection was raised by the accused at the time when call details were exhibited. The only question put to the witness was regarding the application moved by the Investigating Officer in Cyber Cell, Jhajjar. 31. The examination of the evidence shows that in the present case, there are three important places where each part of the occurrence took place. First, is the place where the car hit motor cycle on the road and injured Shamsher was allegedly taken away in the car by the accused. Second, is the place where Shamsher was taken in the jungle and shot dead. Third, is the place where the dead body of Shamsher was found. Place of alleged accident and the place of recovery of dead body came to the notice of the police immediately. However, the place where Shamsher (deceased) was shot dead, came to the notice of the police for the first time on 23.5.2009 when Ajay @ Kala and Kaptan @ Captain disclosed the same to the police and identified the same on 24.5.2009. The Forensic Science Laboratory report Ex. P9 shows that 9 mm empty cartridge was fired from country made pistol W/I which was recovered from accused Ajay Veer @ Tiny. The pistol was found in working order. In this way, the FSL report has established that 9 mm empty recovered from the place of occurrence matched with the country made pistol recovered from accused Ajay Veer @ Tiny on 13.8.2009. 32. Learned counsel for the appellants have vehemently argued that the story of PW7 Randhir having witnessed the occurrence is contradicted by the other evidence on file. According to PW7 Randhir, he was grazing cattle in the fields when he saw the white coloured car hitting motor -cycle of Shamsher and taking him away. The mobile phone of Shamsher fell on the spot. However, FIR was registered on the basis of statement of Jagbir on 21.5.2009 at about 12.45 a.m. i.e. after about 13 hours of the alleged accident. Jagbir claimed that an anonymous caller had made a phone call from the phone of Shamsher on the phone of Hari Om informing him about the factum of a car hitting the motor cycle of the Shamsher and Shamsher being taken away. The said anonymous caller was never identified during investigation nor he was examined. Even the said mobile of Shamsher from which the phone call was made, was not taken into possession during investigation. If the version of Randhir is accepted then that would mean that after seeing the accident, Randhir would have first rushed to the spot and picked up the mobile phone of Shamsher which had fallen at the spot and would have informed others that he saw his enemies riding a car and hitting the motor cycle of Shamsher. However, it comes out that even after about 13 hours of the accident, complainant party only knew that an accident had taken place and that is why they informed Krishna, mother of the deceased Shamsher and they started searching for Shamsher in various hospitals. It would mean that story of Shamsher being kidnapped by the accused was not within their notice till 12.45 a.m. on 21.5.2009. Randhir is none else then the maternal uncle of the deceased. Moreover, in his statement Ex. D1 made under Section 161 Cr.P.C., Randhir is not stated to have witnessed the occurrence. Therefore, his improved version before the Court is liable to be discarded. 33. The net result would be that in this case eye witness account is discarded and the Court is left with the scientific and circumstantial evidence. 34. Admittedly, there is a delay of more than 13 hours in lodging the FIR. Even in the FIR lodged with delay, the story of abduction was put forward and the names of Ajay Veer @ Tiny and Vinod were mentioned as suspects. The witnesses were searching for Shamsher in the hospitals. If they knew that Shamsher has been kidnapped by Ajay Veer @ Tiny and Vinod, they would not have been searching for him in the hospitals. Till the lodging of FIR, police was not informed. Therefore, if the complainant party knew that Shamsher has been kidnapped then keeping in view the old enmity and history of murders between the parties, they would have immediately informed the police so that police could launch operation for searching Shamsher to save his life from the clutches of the accused. It is to be further noted that in the evening around 6 p.m. another occurrence had taken place in which Hari Om, Krishna and Naresh were murdered at the bus stand of village Jassaur Kheri. Therefore, at that time of lodging of present FIR No. 167/2009, enmity between the complainant party and accused had come to forefront. Even in the FIR, Randhir is not named as an eye witness. The anonymous caller was never traced nor the mobile phone of Shamsher was traced. In this way, admittedly, there is a delay in lodging the FIR. The net result is that keeping in view the history of the murders between the parties as stated by the prosecution witness, the Court is put on its guards to scrutinise the prosecution evidence with greater care and caution to exclude the possibility of roping in of innocent persons. In this background, story of criminal conspiracy as sought to be put forward by PW12 Balwan and PW36 Darshna is to be examined. PW12 Balwan has claimed that the was married at village Mundka and they had gone there. His brother was earlier murdered by the accused. Accused were sitting in the house and were allegedly hatching the criminal conspiracy to commit the murder of Shamsher and Hari Om. 35. We are of the view that statement of Balwan PW12 is not trust -worthy. Keeping in view the old enmity between the parties and particularly the murder of the brother of PW12 Balwan, the accused would not be hatching criminal conspiracy in such a loud voice which could be over heard by PW12 Balwan, even if it is assumed that PW12 Balwan was present outside the house of accused. Similarly, the statement of Darshna PW36 also does not inspire confidence that Ravi had accompanied Shamsher and had given signal to accused Ashok. If it was so, PW36 Darshna should have immediately come forward and informed her other family members that Shamsher had gone with Ravi and that she suspects the involvement of Ravi and Ashok in the crime. Names of these two persons also do not find mentioned in the FIR which was lodged with the delay of 13 hours. The statements of PW12 Balwan and PW36 Darshna are unreliable and are liable to be discarded qua the role and manner of criminal conspiracy by the accused. 36. Now the question is as to how the accused are connected with the crime. Pistol used to commit the murder of Shamsher was found in the possession of accused Ajay Veer @ Tiny when he was arrested on 13.8.2009. As per the FSL report discussed above, 9 mm empty cartridge recovered at the instance of accused Ajay and Kaptan on 24.5.2009 from the place where Shamsher was shot dead, matched with the 9 mm pistol recovered from Ajay Veer @ Tiny. Accused Ajay Veer @ Tiny was arrested on 13.8.2009. In the meanwhile, the police could not manipulate the empty cartridge with the pistol used and later on recovered from accused Ajay Veer @ Tiny. The heavy burden was also on the accused Ajay and Kaptan to explain as to how the empty cartridge recovered from the place of murder on 24.5.2009 was within their exclusive knowledge. No explanation is coming forward except the plea of false implication which is not acceptable. 37. In this case, it was not within the notice of the police that Shamsher has been killed at some other place and then his dead body had been put near the pond of village Mattan. Accused Ajay @ Kala and Kaptan were arrested on 23.5.2009 i.e. three days after the occurrence and they were interrogated. When accused Ajay @ Kala and Kaptan were interrogated, they suffered disclosure statements Ex. P25 and Ex. P26. In the said statement, they gave the details and the manner of commission of crime. They also disclosed to the police that Shamsher, after being picked up from the road, was taken to forest near Akhara (place of wrestling) between village Mor Kheri and Kasrehiti and thereafter, Tiny @ Ajay Veer gave gun shot injuries with his 9 mm pistol. They also disclosed that thereafter dead body of Shamsher was thrown by Tiny, Tarun @ Kala @ Kadwa, Parmod and Manjeet. In this way, it was on 23.5.2009 that police came to know about the third place where Shamsher was actually shot dead. Both the accused namely, Ajay and Kaptan led the police party to said place on 24.5.2009 and identified the said place. On the inspection of the said place, the police found the blood stained earth, one empty cartridge of 9 mm and one cartridge of 32 bore. In this way, in pursuance to the separate statement of Ajay @ Kala and Kaptan@ Captain, the police discovered the place where Shamsher Singh was shot dead and also recovered one empty cartridge of 9 mm. Human blood was also found there. The said fact was within the exclusive knowledge of said accused and was not known to the police earlier. Therefore, their disclosure statements in pursuance to which the blood stained earth and 9 mm empty cartridge were found at the place of murder, is admissible in evidence under Section 27 of Indian Evidence Act. 38. The disclosure statement of accused Ashok Ex. P19 shows that he had disclosed to the police that he had been using mobile No. 9991362120 and mobile number used by Tiny @ Ajay Veer was 9718999004. He had also stated that he had given information about Hari Om, Krishna and Naresh etc. and that they had also planned the murder of Hari Om and Shamsher. Police thereafter obtained the call details of mobile phone of 9718999004 which was proved by PW26 Constable Suresh, Cyber Cell, Jhajjar. 39. Learned counsel for the appellants argued that said call details are not admissible in evidence. The said call details should have been called from service provider and proved in accordance with law. It has further been argued that the ownership of said mobile numbers is not proved nor the ownership of sim card is proved. These do not stand in the name of the accused. 40. We are of the view that it is not necessary that one may be using his own mobile while committing such dastardly crime which is alleged to have been committed after pre -meditation. Rather the investigation revealed that Ashok Kumar was using mobile number 9991362120 and Tiny @ Ajay Veer was using mobile number 9718999004. The call details of the same is Ex. P56. The call details proved by Cyber Cell were admitted in evidence without any objection from any of the accused and can be relied upon. The position would have been different, if accused had raised the objection to the exhibiting of the said call details, which would have given an opportunity to the prosecution to summon the call details from the service provider. It is common for the criminals to use the mobile phone standing in the name of other persons so that these could not be connected with them in case of their arrest. The call details of Mobile No. 9718999004 Ex. P57 show that many calls were exchanged between mobile No. 9991362120 and mobile No. 9718999004 on 20.5.2009 between 6.29 a.m. till 1.19 p.m. Some of the call were made around 11.30 p.m. which shows that Ashok and Ajay Veer were in constant touch with each other during the period of commission of crime. Normally, there is no eye witness account of criminal conspiracy. Criminal conspiracy is always a secret act and has to be inferred from the attending circumstances. The call details clearly show that Ashok and Ajay Veer were in constant touch when the crime was committed. From these circumstances, it has to be inferred that Ashok who was in constant touch of Tiny had participated in the crime. In this way, though there is no direct evidence that Ashok Kumar committed the murder of Shamsher but it is proved that he was involved in criminal conspiracy with accused Ajay Veer @ Tiny to commit the kidnapping and murder of Shamsher. 41. It has been argued that accused Ashok has been convicted under Section 364 IPC though the said charges were never framed against him. After going through the charge -sheet, we find merit in the same and we are of the view that Ashok could not be convicted under Section 364 IPC in the absence of charge. 42. Learned counsel for the appellants have further argued that mobile phone No. 982933600 which was used by anonymous caller is proved to have been used till 22.5.2009 as is clear from the call details. We are of the view that said phone used by Shamsher might have been used by anybody, who picked up the same but the fact qua the said phone remains that anonymous caller had informed the complainant party regarding the accident of Shamsher and he being picked up by same car riders. 43. As a result of the foregoing discussion, we come to the conclusion that evidence of criminal conspiracy on the part of Yashwanti, Jai Ram @ Baba, Ravi, Kala @ Parmod and Manjeet is not proved beyond all reasonable doubts. Accordingly, they are acquitted of the charges framed against them under Sections 302/120B IPC giving benefit of doubt. 44. Accused Ashok is also acquitted of the charges under Section 364 IPC as no charge under said section was framed against him. 45. However, it is proved that accused Ajay Veer @ Tiny, Ashok, Kaptan @ Captain, Ajay @ Kala were involved in murder of Shamsher Singh. Tiny @ Ajay Veer had committed the murder of Shamsher whereas accused Ashok, Kaptan @ Captain and Ajay @ Kala also participated in the crime. In this way, accused Ajay Veer @ Tiny is liable to be convicted under Section 302 IPC whereas accused Kaptan, Ajay @ Kala and Ashok are liable to be convicted under Section 302 IPC read with Section 34 IPC. Conviction of Tiny @ Ajay Veer under Section 302 IPC read with Section 120B IPC is also maintained. The conviction of Tiny @ Ajay Veer under Section 364 IPC and 25 of Arms Act is also maintained. 46. As a result of the foregoing discussion, the appeal is partly allowed. Accused Jai Ram @ Baba, Ravi, Yashwanti, Manjeet and Kala @ Parmod are granted benefit of doubt and acquitted of the charges framed against them whereas conviction and sentence of accused Ajay, Ashok, Kaptan @ Captain and Ajay Veer @ Tiny under Section 302 read with Section 34 IPC is maintained. 47. Conviction of accused Ajay Veer under Section 302 read with Section 120B, 364 IPC and 25 of Arms Act is also maintained. Accused Jai Ram, Ravi, Yashwanti, Manjeet and Kala @ Parmod be released forthwith, if not required in any other case.;