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Rajasthan High Court · body

2000 DIGILAW 1335 (RAJ)

State of Rajasthan v. Chamkor Singh

2000-11-08

G.L.GUPTA, J.C.VERMA

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Honble VERMA, J.–The above-said death reference and the counter appeals have arisen out of the judgment dated 7.12.1998 passed by the learned Sessions Judge, Jaipur District, Jaipur whereby he had convicted and sentenced the accused Hazoor Singh son of Shri Amrik Singh and Chamkor Singh s/o Shri Sucha Singh as follows:- vfHk;qDrx.k pedksj flag ,oa gtwjflag dks Hkk-n-la- dh /kkjk 302 ds vUrxZr nks"kfl) djrs gq, e`R;q n.M ls n.Mkfn"V fd;k tkrk gS rFkk vknsk fn;k tkrk gS fd mDr nksuksa vfHk;qDrx.k dh xjnu esa Qklh yxkdj mUgsa rc rd yVdk;k tkos tc rd mudh e`R;q u gks tkos rFkk mDr nksuksa vfHk;qDrx.k dks nl gtkj :i;s ds vFkZ n.M ls Hkh nf.Mr fd;k tkrk gSA vFkZ n.M vnk ugha djokus dh fLFkfr esa izR;sd vfHk;qDr dks 6-6 ekg dh vfrfjDr dkjkokl dh ltk vkSj HkqxrkbZ tkosaA vfHk;qDrx.k pedksjflag ,oa gtwjflag dks Hkk-n-la- dh /kkjk 404 ds vUrxZr ,d o"kZ ds dBksj dkjkokl ,oa ,d ,d gtkj :i;s vFkZ n.M ls nf.Mr fd;k tkrk gSA vFkZ n.M vnk ugha djus dh lwjr esa mUgsa ,d ekg dk vfrfjDr dkjkokl vkSj Hkqxrk;k tkosA (2). The sentences are ordered to run concurrently. (3). As per the prosecution case, PW-22 Shri Gajanand Verma, the then Station House Officer, Police Station, Dudu, had received an information on 12.3.1984 in the morning hours that near the border of Ajmer-Jaipur District, on National High Way No.8, an un-identified dead-body was lying. On receipt of this information, as per the directions of Shri Gajanand Verma, rapat rojnamcha No. 360 was recorded by PW 16 Bhanwar Singh as per Ex. P. 21. Gajanand Verma proceeded towards the site, Panchanama Ex.P-11 was prepared on the site. Site Plan Ex.P-12 was prepared. Near the dead body, a pair of `JUTI (foot wear) was also found which was seized as per Ex.P-13. Blood stained earth, simple earth, some pieces of the cigarette, iron bolt, some pieces of glass etc. were also found and were taken into possession as per Ex.P.14. (4). While investigating the above said case, it also came to light that an un-identified body of another person within the police jurisdiction of Kishangarh had also been found of which FIR No. 17/84 had been registered under Sec. 302 IPC and was being investigated. (5). The Superintendent of Police, Jaipur had received an application from one Brij Mohan stating therein, that his oil tankar No. DHL 3713 was missing. (5). The Superintendent of Police, Jaipur had received an application from one Brij Mohan stating therein, that his oil tankar No. DHL 3713 was missing. This tanker had started from Kandla with full load of oil on 10.3.1984 for Rajpura and had passed Beawar on 11.3.1984 at about 6.00 p.m. as per the entry at No. 455, Sr. No. 17 in the Octroi Check Post. The driver of this oil tanker was Gyan Chand and helper was Harbhajan. It was stated in the application that efforts were being made to locate these persons and the tanker, but the last trace had been found only upto Beawar and after that it had become untreacable. As per the photograph of the driver Gyan Chand, it was revealed that un- identified dead-body found near Kishangarh was of Gyan Chand driver and other dead-body was of Harbhajan, the helper of the tanker. On investigation, it was found that these persons had been killed by some one, dead-body of Gyan Chand driver had been thrown within the jurisdiction of Kishangarh Police Station whereas the dead-body of Harbhajan had been thrown within the jurisdiction of Dudu Police Station. The culprits had taken away the tanker along with oil. On such investigations FIR No. 82/84 u/S. 302 IPC dated 27.4.1984 was registered at police station Dudu. PW-23 Dinesh Chand Sharma, the then Additional Superintendent of Police had recorded the statement of witnesses. Accused Hazoor Singh was arrested vide Ex.P.30. (6). Application Ex.P. 27 was moved before the Additional Chief Judicial Magistrate, Jaipur for identification of accused Chamkor Singh and Trilochan Singh. Similarly, application Ex.P.28 was moved before the Chief Judicial Magistrate, Jaipur District Jaipur for identification of the accused Hazoor Singh. In regard to the accused persons namely Dilbagh Singh, Manak Chand and Puran Kumar, application for identification Ex. 31 was also moved. As per the production warrant dated 19.11.1985 the Sub- Inspector of Police Sajjan Singh was authorised to arrest the accused Trilochan Singh and Chamkor Singh vide Ex. P. 32 and 33. Shri Dinesh Chand Sharma had prepared the identification proceedings of the witnesses who were to identify the accused Dilbagh Singh, Puran Kumar and Manak Chand vide Ex. P.34 and 35. (7). P. 32 and 33. Shri Dinesh Chand Sharma had prepared the identification proceedings of the witnesses who were to identify the accused Dilbagh Singh, Puran Kumar and Manak Chand vide Ex. P.34 and 35. (7). As per the case of the prosecution, during the pendency of the investigation, accused Dilbagh Singh had moved an applications before the Additional Chief Judicial Magistrate, Sambherlake u/S. 306 Cr.P.C. on 10.12.1985, 14.12.1985, 21.12.1985, Ex.P.1 to P. 4 fur turning to be an approver. On the application for granting pardon to said approver, the order dated 23.12.1985 was passed and his statement Ex.P.5 was also recorded on the same day. On the presentation of the challan, the statement of Dilbagh Singh was recorded vide Ex.P. 6 on 11.3.1986 after completing the required formalities, the identification parade was held on 23.11.1985 vide Ex. P. 7. The proceedings for identification regarding Hazoor Singh was held on 13.12.1985 vide Ex. P. 8 and copy Ex.P.24. Similarly proceedings regarding identification of Dilbagh Singh, Manak Chand and Puran Kumar accused were held on 21.11.1985 vide Ex. P.9. The post-mortem of the dead-body was conducted vide Ex.P. 15 by Dr. Brijesh Gupta as per report Ex.P.20. PW-17 Puran Pratap Nirmal, Sub-Inspector Police had seized the register of deposit of amount on 11.2.1986 of Municipal Council Beawar, Octroi Check Post. He also seized register of security deposit of amount, imprest register and transit fee book from the check post Sendra Marg (Jodhpur Road) and Ajmer Road vide Ex.P.10. (8). As per the statement of approver Dilbagh Singh, the accused persons Sarva Shri Chamkor Singh, Trilochan Singh, Hazoor Singh, Dilbagh Singh and one Balia with the intention of looting had started following the tanker No. DHL 3713 in their truck No. PNB 8600 and had stangulated Gyan Chand driver of the truck. They had thrown the dead-body near Bandra Sindri bridge of which an FIR No. 17/84 had been registered at Kishangarh. It was also stated that at a distance of 16 Kms. of Kishangarh, they had killed the khalasi of the tanker Harbhajan Singh by running over the tanker on the body of Harbhajan Singh. After killing said two persons, the accused persons are alleged to have run away with the tanker to Jaipur and Achrol and sold Soyabeen oil to different persons. As per the approvers statement the tanker was filled up with the oil worth Rs. After killing said two persons, the accused persons are alleged to have run away with the tanker to Jaipur and Achrol and sold Soyabeen oil to different persons. As per the approvers statement the tanker was filled up with the oil worth Rs. 1,70,000/- and with the intention to loot the said material, the accused persons had chased the tanker, killed the driver Gyan Chand and helper Harbhajan Singh. (9). Charge-sheet was filed u/S. 395, 396, 404 IPC against the accused Chamkor Singh, Trilochan Singh and Hazoor Singh before the Additional Chief Judicial Magistrate, Sambherlake. (10). In regard to the registration of the FIR with the police station, Kishangarh and investigation held in such investigations intimation was received on 12.3.1984 to the fact that on National High Way No. 8, under the bridge, an unidentified dead-body was lying and on receipt of this information the SHO proceeded to the spot where he found the un-identified dead-body and an FIR No. 17/84 u/S. 302 and 201 IPC was registered. (11). The case was committed to the court of Sessions by the Chief Judicial Magistrate vide order dated 11.3.1986 and was registered as Sessions Trial No. 18/86. On the orders of the High Court in Misc. Bail Application No. 4222/97 the case was (antarit) transferred or allocated to the Additional District and Sessions Judge, Dausa Camp Jaipur. The Additional District & Sessions Judge, Dausa Camp Jaipur vide its order dated 10.11.1996 had charged the accused Chamkor Singh, Hazoor Singh and Trilochan Singh u/Ss. 302 and 404 IPC. The accused Trilochan Singh had absconded and his trial, therefore, had not been concluded. (12). All the accused persons had denied the charges. The prosecution had produced PW-1 Dilbagh Singh (approver), PW-2 Vinod Kumar, PW-3 Ramesh Chand, PW-4 Jai Chand, PW-5 Mohd. Ismail, PW-6 Radhey Shyam, PW-7 Radha Vallabh, PW-8 Durga Mohan, PW-9 Kamruddin, PW-10 Raju Doi, PW-11 Satya Narain, PW-12 Babulal Garg, PW-13 Bhag Chand, PW-14 Mangal Chand, PW-15 Dr. Brijesh Gupta, PW-16 Bhanwar Singh, PW-17 Puran Pratap Nirmal, PW-18 Nagarmal, PW-19 Hanuman, PW-20 Sajjan Kumar, PW-21 Devendra Swaroop Vashishtha, PW-22 Gajanand Verma and PW-23 Dinesh Chandra Sharma and the documents Ex.P-1 to P-30 were exhibited. (13). The statement of accused Chamkor Singh and Hazoor Singh were recorded u/S. 313 Cr. P.C. They had completely denied the charge and stated that they had been falsely implicated. They had not produced any defence. (14). (13). The statement of accused Chamkor Singh and Hazoor Singh were recorded u/S. 313 Cr. P.C. They had completely denied the charge and stated that they had been falsely implicated. They had not produced any defence. (14). PW-1 Dilbagh Singh aged about 44 years, an approver in the case is the key witness, who was confined to jail since 9.11.1985 and was brought from the jail for the purpose of deposition. He stated that he knew Hazoor Singh since 1984. He also knew Trilochan Singh. Hazoor Singh and Trilochan Singh were facing trial in the court of Shri Mahesh Chandra, Sessions Judge in Delhi along with him. Trilochan Singh had told him at Delhi that one truck No. PBO 1186 had gone to Gujarat and was being driven by the driver who was newly employed. The truck was to be brought back. All the three came to Gurgaon where they found Chamkor Singh and Walia in Truck No. 8600 PBN and he along with Hazoor Singh, Trilochan Singh and Chamkor Singh and Valia started for Jaipur. They tried to find some load from Jaipur, but not finding any load, went to Kishangarh. There also they were not successful to get any load, then went to Ajmer and for this purpose went to Sumerpur. At Sumerpur near Chungi Naka they saw tanker No. DHL 3713. Trilochan Singh boarded the tanker. PW-1 also approached the tanker 10-15 minutes later and found driver of the tanker and Trilochan Singh quarrelling. He was told that the driver of the tanker was responsible for getting the services of Trilochan Singh terminated about 4-5 months back. PW-1 tried to pacify them. Lateron Trilochan Singh brought two bottles of whiskey and again came to the tanker. PW-1 along with Trilochan Singh, tanker driver and Valia took whiskey in the tanker. Tanker driver was asked to follow the truck to Jaipur. Trilochan Singh remained in the tanker whereas PW-1, Hazoor Singh, Chamkor Singh and Valia remained in the truck No. 8600, which was being driven by Dilbagh Singh, PW-1. They followed upto Ajmer Chungi Naka. Near Chungi Naka, the truck was stopped infront of the tanker and Trilochan Singh shifted to the tanker with another bottle of whiskey. He, Valia, tanker driver, Trilochan Singh and Chamkor Singh took the whiskey sitting in the tanker and again they shifted to the truck and there also they took whiskey. They followed upto Ajmer Chungi Naka. Near Chungi Naka, the truck was stopped infront of the tanker and Trilochan Singh shifted to the tanker with another bottle of whiskey. He, Valia, tanker driver, Trilochan Singh and Chamkor Singh took the whiskey sitting in the tanker and again they shifted to the truck and there also they took whiskey. Tanker driver became unconscious because of heavy drinking. Trilochan Singh drove towards Jaipur to the truck. At about 11.00 p.m. of the night, he, Chamkor Singh, Hazoor Singh and tanker driver were in the truck being driven by Trilochan Singh and after crossing Bandra Sindri, Chamkor Singh put a rope around the neck of the driver and asked PW-1 to pull the rope from the other and to which Dilbagh Singh PW-1 refused, but he was threatened that he would also be killed. He stated that the rope was pulled by him from one end and from the other side by Chamkor Singh. The driver died within 3-4 minutes. Trilochan Singh stopped the truck to one side, and climbed down. Hazoor Singh was already there. He and Trilochan Singh threw the dead-body of the driver down below the road and then Chamkor Singh and Trilochan Singh dragged the dead body and threw it down the bridge. Trilochan Singh went back in the truck No. 8600 to Ajmer and reached the place where the tanker was stationed accompanied by Trilochan Singh, Hazoor Singh and Chamkor Singh in the truck. Lateron Trilochan Singh, Khalasi of the tanker and Valia took the tanker to Jaipur side from Kishangarh followed by him in the truck. Both the vehicles stopped at Bandra Sindri. Hazoor Singh went to one Dhabe-wala (roadside restaurant) and talked to him about the disposal of the oil of the tanker. He, Trilochan Singh, Chamkor Singh and Valia along with the helper of the tanker brought the tanker to the place where the driver of the tanker was thrown. The truck following the tanker, also stopped there. Trilochan Singh and Chamkor Singh caught hold of khalasi of the tanker from the arms and the legs and placed him infront of the rear wheel of the tanker. Trilochan Singh drove the tanker over the body of the helper. He further says that he slept in the truck and got up only at 8.00 a.m., in the morning near Anaj Mandi of Jaipur. Trilochan Singh drove the tanker over the body of the helper. He further says that he slept in the truck and got up only at 8.00 a.m., in the morning near Anaj Mandi of Jaipur. He says that when Trilochan Singh had run over the khalasi, it was 11.45 pm at night. They had stationed the tanker near the bye- pass and had gone to make arrangement for selling of the oil. They took more drinks. For the purpose of selling of oil, he along with Chamkor Singh, Hazoor Singh, Trilochan Singh went in the truck No. 8600 to Achrol and had a talk with some old man sitting in a wooden khokka. That old man accompanied them to Jaipur and approached some Seth who agreed to purchase the oil of the tanker. All these persons went in the truck No. 8600 to bring the tanker. They went first to Achrol and reached that place at about 9.30 p.m., the said Seth had come with 20-22 drums. They parked the tanker in a school. He had brought the drums in a truck along with three labourers. After filling of 10-12 drums, the said Seth accompanied by Trilochan Singh used to take them somewhere else in the small vehicle. The tanker was got emptied by morning. Walia stayed with the tanker. The other persons accompanied Seth to Jaipur in his go-down and were paid Rs. 74,000/- as price of the oil. They went back to Achrol where the tanker was stationed and from there he and Hazoor Singh drove the tanker whereas Trilochan Singh and Chamkor Singh drove the truck. After crossing Shahpura they turned towards Alwar side. They stationed the tanker and removed its all the tyres and placed all four tyres on truck No. 8600; left the tanker there on the road and reached Gurgaon border on the truck. Chamkor Singh had distributed an amount of Rs. 17,5000/- each to him and Walia. All the four tyres were given to Hazoor Singh. However, Rs. 5,000/- each was returned back to Chamkor Singh for meeting the expenses. He states that at that time, he came to know that the truck No. 8600 belonged to Walia. After reaching Gurgaon, Walia stayed with the truck whereas he, Chamkor Singh, Trilochan Singh and Hazoor Singh proceeded to their homes to Delhi. However, Rs. 5,000/- each was returned back to Chamkor Singh for meeting the expenses. He states that at that time, he came to know that the truck No. 8600 belonged to Walia. After reaching Gurgaon, Walia stayed with the truck whereas he, Chamkor Singh, Trilochan Singh and Hazoor Singh proceeded to their homes to Delhi. He admits that when he was Sambhar Jail, he had voluntarily given an application without any coersion or pressure to the ACJM for being turned as approver vide applications to Ex.P.1 to P.4, which is signed and written by him. His statements were recorded by the Magistrate vide Ex.P.5 on 23.12.1985 which was signed by him. Statements were again recorded before the ACJM vide Ex.P. 6 which is also signed by him on 11.3.1986. He was allowed to turn approver vide Ex. P.7. (15). In the cross examination, PW-1 admits that he was brought from Delhi Jail on 17.11.1985 where he was facing trial u/S. 302 and was confined to Delhi Jail from 16.9.1985. In addition to above murder case in Delhi, another case u/S. 304 IPC was also pending against him at Delhi since 1981. He was kept in Sambhar Kotwali for two hours along with two other persons before shifting to Sambher jail. He states that the police had never told him that he could become approver by stating truth. He had not told this incident to any other person. He was confined in the Sambher jail on 9.11.1985. He was doing the work of driving of the truck of Sardar Banta Singh earlier to being arrested and he had also driven the truck of Hazoor Singh accused for some time at truck No. PBO 1186. He was involved in murder case in Delhi along with Puran Kumar and Manak Chand. He had made up his mind to become approver when he was in Sambher Jail. He says that he did not know the consequences of becoming approver. (16). In the cross examination this witness states that Chamkor Singh had decided to kill the driver of the tanker on the reason that he was caused for getting Trilochan Singh removed from service. While narrating the killing of `khalasi (helper), he states that he was not sure that when the helper was removed from the tanker whether he was alive or dead. While narrating the killing of `khalasi (helper), he states that he was not sure that when the helper was removed from the tanker whether he was alive or dead. However, Trilochan Singh and Chamkor Singh had taken him out by pulling him by his hands and legs and then had kept him infront of the left rear wheel of the tanker. He further said that he had asked as to why they were killing the helper of the tanker and was told that for the reason that as the helper was knowing many facts and he could become a witness and, therefore, he was killed by running over by the tanker. (17). Evidence was produced in regard to recovery, site plan where the dead-body was found, the movement of the tanker, seizure, sale of oil, post-mortem, identification and arrest of the accused persons. (18). PW-7 Raghav Vallabh was the witness who had signed the seizure memo. PW-6 Radhey Shyam was signatory of the recovery memo. (19). In regard to movement of the tanker while passing through Beawar and other places, the prosecution had produced PW-3 Ramesh Chand, PW-4 Jai Chand, PW-11 Satya Narain, PW-12 Babu Lal Garg and in regard to sale of oil witness Vinod Kumar PW-2, Durga Mohan PW-8, Bhag Chand PW-13, Nagarmal PW-18, Hanuman PW-19 and Sajjan Singh PW-20 are produced. (20). The identification was proved through Davendra Swaroop Vashishtha PW-21, Munsiff and Judicial Magistrate, PW-22 Gajanand was the SHO who had investigated the matter. (21). The only material witness is PW-1 Dilbagh Singh and the witnesses of identification and sale/purchase of oil. (22). Vinod Kumar-PW2 is a witness of sale of oil from the tanker at Achrol. He had identified Chamkor Singh and Dilbagh Singh, but he was declared as hostitle. Even though he identified Trilochan Singh, Chamkor Singh and Dilbagh Singh, but says that Hazoor Singh was not among them and further says that he identified Hazoor Singh at the instance of Dilbagh Singh. (23). PW-8 Durga Mohan is a witness in regard to the sale of oil from the tanker at Achrol. So is PW-9 Kamruddin and PW-10 Raju Doi. (24). PW-13 Bhag Chand is the eye witness in regard to sale of the oil through tanker so is PW-14 Amar Chand. (25). PW-18 Nagarmal is a hostile witness in regard to sale of the oil. (26). So is PW-9 Kamruddin and PW-10 Raju Doi. (24). PW-13 Bhag Chand is the eye witness in regard to sale of the oil through tanker so is PW-14 Amar Chand. (25). PW-18 Nagarmal is a hostile witness in regard to sale of the oil. (26). PW-3 Ramesh Chand is a witness of passing of the truck No. 3713 on 11.3.1984 at Ajmer road and when the amount of Rs. 10/- was paid at the Naka by one Harbhajan Singh. (27). PW-20 Sajjan Kumar is the witness in regard to purchase of about 13 drums from the tanker. He identifies his signatures on identification Ex.P.7, P.8, P. 24 and P.25. (28). Jai Chand- PW4 is also a witness of Naka Chungi, Municipal Council, Beawar where fee was paid by the driver of the tanker DHL 3713. So is PW 5 who deposed to the same effect as PW-4. (29). PW-11 and PW-12 Satya Narain and Babu Lal are the witnesses in regard to seizure of the octroi record. (30). PW-17 Puran Pratap Nirmal is a witness in regard to production of record of octroi post, Beawar. (31). PW-6 Radhey Shyam is the signitory to Ex.P.12, P. 13 and P. 14, but states that the site plan P. 11, Panchayat Nama P. 12 and recovery of Joti P. 13 were to made in his presence, but he was asked to sign. He was declared hostile. (32). PW-7 Raghav Vallabh was also a witness to the seizure as per Ex.P-11, P-12, P-13 and P-14. He was also declared hostitle. MEDICAL EVIDENCE (33). PW-15 Dr. Brijesh Gupta states that on police report he had conducted that post-mortem of an un-identified body of 35 years. He states that there were imprints of tyres at the chest, leg and arms, however, his complete head, heart and lungs had been eaten by the animals. The body had crushed injuries on the head. All the bones of the head, face and both the arms were totally crushed, so were the ribs Nos. 2, 3, 4, 5 and 6. He had given the post-mortem report Ex.P.20. He had opined that these injuries can be caused if the body is run over by the truck. He had conducted the post-mortem when he was posted at Dudu. (34). 2, 3, 4, 5 and 6. He had given the post-mortem report Ex.P.20. He had opined that these injuries can be caused if the body is run over by the truck. He had conducted the post-mortem when he was posted at Dudu. (34). PW-21 Davendra Swaroop Vashishta, a judicial officer, Munsiff and Judicial Magistrate, Jaipur District, Jaipur who was so working as such on 22.11.1985 states that Prabhu Dayal Yadav, Sub-Inspector, Police had submitted an application as per the orders of the Chief Judicial Magistrate before him for identification of the accused persons and he had passed the orders for identification of the accused persons on Ex.P-26 and 27. He had passed the orders Ex.P-28 which bears his signatures for holding the identification parade on 13.12.1985 and Ex.P.29 bearing his signatures at place `A. The procedure for identification of Chamkor Singh and Trilochan Singh accused by the witness Sajjan Kumar, Mahadev, Sitaram, Nagarmal, Raju, Kanhaiyalal, Vinod Kumar and Kamruddin was completed. All the formalities in regard to mixing of the accused with the other persons having beard as that of the accused, were completed. It was stated by him that the witness had identified the accused persons as per Ex.P.7 which bears his signatures. On 13.12.1985, identification proceedings in regard to accused Hazoor Singh were also conducted as per Ex.P.8. He states in the cross examination that the accused persons had taken an objection at the time of identification parade that they had already been shown to the witnesses which was so mentioned in Ex.P.7. So is the case in regard to accused Hazoor Singh which fact has been mentioned in Ex.P.8. (35). PW-22 is Gajanand Verma who was SHO, police station Dudu. He says that he had received information in regard to un- identified dead-body lying at Ajmer-Jaipur road. The entry was made in regard to the report and had reached the place. The proceeding u/S. 174 Cr. P.C. were completed, Panchayat Nama was prepared vide Ex.P-11 which bears his signatures along with the signatures of Radha Vallabh and Radhey Shyam. He prepared the site-plan Ex.P-12 which bears his signatures. He had also prepared Ex.P-13 of recovery of foot wears and other materials Ex.P-14. (36). PW-23 is Dinesh Chand Sharma, AIGP-II, Crime Branch, Jaipur, who had recorded statement of witnesses FIR No. 82/84 correctly. During investigation he had arrested accused Hazoor Singh vide Ex.P.13. He prepared the site-plan Ex.P-12 which bears his signatures. He had also prepared Ex.P-13 of recovery of foot wears and other materials Ex.P-14. (36). PW-23 is Dinesh Chand Sharma, AIGP-II, Crime Branch, Jaipur, who had recorded statement of witnesses FIR No. 82/84 correctly. During investigation he had arrested accused Hazoor Singh vide Ex.P.13. He had submitted applications for identifications of accused Chamkor Singh and Trilochan Singh vide Ex.P.-27 and in regard to Hazoor Singh vide Ex.P-28 which bears his signatures. He had taken steps for getting the accused persons identified in jail by putting up the application which bears his signatures along with name of the witnesses who were to identify them. Sajjan Singh Sub-Inspector was working under him and on the production warrants accused Trilochan Singh and Chamkor Singh were arrested from Tihar Jail vide Ex.P-32 and 33 which bears the signatures of Sajjan Singh. (37). Hanuman PW-19 is also a hostile witness in regard to sale of oil. He was working as labourer. Drums were filled up from the tanker. He says that there were 4-5 persons with the tanker. He identifies the two accused persons. (38). All the accused persons had denied the charges in the statement u/S. 313 Cr. P.C. (39). (37). Hanuman PW-19 is also a hostile witness in regard to sale of oil. He was working as labourer. Drums were filled up from the tanker. He says that there were 4-5 persons with the tanker. He identifies the two accused persons. (38). All the accused persons had denied the charges in the statement u/S. 313 Cr. P.C. (39). The conviction was being challenged by the appellants on the grounds:- (1) that there was no identity established of the dead-bodies; (2) there was no post mortem report; (3) there was no corroborative evidence what-so-ever to the statement of the approver; (4) that the statement of the approver cannot be relied upon being contradictory; (5) there was no trace of liquor in the stomach of the deceased; (6) neither the truck in question nor the tanker had been seized; (7) the owner of the tanker Brij Mohan had not been examined; (8) none of the witness of purchase or sale of oil from the tanker had mentioned the registration number of the tanker from where the oil is said to have been taken out nor there is any report made to the police in this regard in any of the police station; (9) if the story of the prosecution is believed, no case u/S. 411 for possession of the stolen property had been framed against any of the prosecution witness; (10) the prosecution had failed to explain as to how and on what information approver Dilbagh Singh was brought from Tihar Jail while he was facing another trial at Delhi; (11) along with approver Dilbagh Singh, two other persons namely Manik Chand and Puran Chand were brought from Delhi against whom no charge-sheet had been filed and it shows that the prosecution story is false and approver cannot be believed. It is stated that the prosecution story is improbable and does not depose any confidence and is against the natural conduct for the persons who had started from Delhi to trace a truck No. TBU 1186 of Trilochan Singh who had gone to Gujarat but instead looking for the load for hire and then committed alleged crime and returned back to Delhi. (40). (40). A doubt is created on the prosecution story as to why the tanker driver who is said to be enemical to the accused Trilochan Singh would accompany the said persons in the truck and will have drinks voluntarily with them. (41). On the other hand the learned counsel for the State submits that the statement made by the approver Dilbagh Singh PW-1 is reliable and should be believed as it satisfies all the tests of believing the sole statement of the approver and further states that there is sufficient and cogent evidence on record to prove that the oil from the tanker was sold by the said accused. In regard to non-production of Brij Mohan, the owner of the tanker, it is stated that he had expired and, therefore, could not have been produced. (42). After hearing learned counsel for the parties, it goes without saying that the whole of the case of the prosecution is based on the solitary statement of the approver PW-1 Dilbagh Singh. He states that he was asked by Trilochan Singh to accompany him to Gujarat for bringing back the truck No. PBO 1186 which was being driven by a new driver and thus he along with Huzoor Singh, Trilochan Singh, Chamkor Singh and Walia started for Jaipur on truck No. 8600. At Jaipur they started for looking for load for hire and at Sumerpur found tanker No. DHL 3717 standing at that place. Trilochan Singh went towards the said tanker and had picked up a quarrel with the driver because of some past incident, but immediately thereafter he got two bottles of whiskey and started drinking along with tanker driver by sitting in the tanker itself. Trilochan Singh started driving the tanker whereas he, Hazoor Singh, Chamkor Singh and Walia remained in the truck No. 8600 and started following the tanker. Near Ajmer, the tanker driver, Trilochan Singh and Chamkor Singh again took drinks while sitting in the tanker itself. Then again they shifted to truck and again started taking liquor. The tanker driver was killed while sitting in the truck as narrated above by pulling the rope by Chamkor Singh and PW-1. Trilochan Singh along with the helper of the tanker went towards Jaipur side in the tanker. Then again they shifted to truck and again started taking liquor. The tanker driver was killed while sitting in the truck as narrated above by pulling the rope by Chamkor Singh and PW-1. Trilochan Singh along with the helper of the tanker went towards Jaipur side in the tanker. It was stopped by Trilochan Singh at some `Dhaba for the purpose of making a deal for selling the oil which did not materialise and at the some distance from the place where the driver of the tanker was thrown out, the helper of the tanker was brought out from the tanker and was crushed under the tanker and then narrates the story of selling of the oil at Achrol. He states that he was not sure whether the khalasi of the tanker was dead or alive when he was taken out of the truck and crushed under the tanker as `khalasi had not made any effort to get himself freed at the time of taking him out of the tanker. He states that after the said incident he was involved in a murder case along with Manak Chand and Puran Chand and was confined to Tihar Jail Delhi when he was brought to this place by the police. He was brought along with Manak Chand and Puran Chand who were not involved in the present case. (43). Whole of the evidence as produced by the prosecution is mainly based (1) on the statement of the approver Dilbagh Singh; (2) he is said to have been arrested while he was facing trial in another case and confined in Tihar Jail on the production warrant by the police concerned; (3) the evidence of the witnesses in regard to sale of oil from the tanker at Achrol and (4) the identification made in the jail of the accused persons by the witnesses who are said to have taken part in purchase of sale of the oil at Achrol; (5) tracing of the tanker found at the octroi post at Sumerpur near Ajmer. (44). Apart from the statement of Dilbagh Singh PW-1 the prosecution has tried to establish the case in regard to sale of the oil through Vinod Kumar PW-2, who is said to have identified Chamkor Singh and Dilbagh Singh, but he was declared as hostile witness. (44). Apart from the statement of Dilbagh Singh PW-1 the prosecution has tried to establish the case in regard to sale of the oil through Vinod Kumar PW-2, who is said to have identified Chamkor Singh and Dilbagh Singh, but he was declared as hostile witness. Even though he was hostile at the time of identification, he had deposed that he had identified Huzoor Singh at the instance of Dilbagh Singh. The other witness produced in regard to sale of oil are PW-8 Durga Mohan and PW-9 Kamruddin and PW-10 Raju and Bhagchand PW-13 and Amarchand PW-14. (45). PW-18 has not supported the prosecution in regard to the sale of oil and so is the case of PW-19 Hanuman. Sajjan Singh PW- 20 is a witness in regard to the identification of the accused persons and also of the sale of oil. (46). Identification had been conducted in the presence of PW-21 Davendra Swaroop Vashishtha, a judicial officer on the application made by the Sub-Inspector Police and as per the orders of the Chief Judicial Magistrate. It is stated that the proce- dure for identification of Chamkor Singh, Trilochan Singh by the Sajjan Kumar, Maha- dev, Sitaram, Nagarmal, Raju, Kanhaiyalal, Vinod Kumar and Kamruddin after completing all the formalities. However, it is testified by him that the accused persons have taken a positive objection that they had already been shown to the witnesses, which objection was also recorded in writing. The Police officers PW-22 and PW-23 had been produced in regard to completing the formalities when they were informed of the un- identified dead-body lying at the place and also had arrested the accused persons. (47). The Police officers PW-22 and PW-23 had been produced in regard to completing the formalities when they were informed of the un- identified dead-body lying at the place and also had arrested the accused persons. (47). From the evidence and the law as laid down in the circumstances, the statement of the approver is to be taken with caution and in our opinion, the conduct and the series of circumstances do leave some un-explained links and the conduct of PW-1 does not seem to be natural and does throw a doubt on the statement made by the approver which can be summarised as under:- (i) The approver PW-1 states that he was approached by Trilochan Singh to accompany him to Gujarat for bringing back the truck No. PBO 1186 which according to him was being driven by a new driver and, therefore, he along with Huzoor Singh, Trilochan Singh, Chamkor Singh and one Walia started on truck No. 8600, and right on the way at Jaipur, they instead had started looking for load for hire. They had seen the tanker parked at Sumerpur, on seeing it, said Trilochan Singh had a quarrel with the driver of the tanker because of his old enemity, but immediately, thereafter, liquor was purchased and consumed and they along with the tanker driver started following each other. On the way, the tanker driver was strangulated in the running truck. The said party had started in truck No. 8600 from Delhi and was so concerned about his truck No. PBO 1186 and had started from Delhi to locate the truck on the apprehension that the driver of the said truck was a new driver on the job, in such circumstances his first anxiety would be to trace the truck itself, as that was the main purpose for which all the accused persons had started from Delhi in truck No. 8600; (ii) If Trilochan Singh had an enemity with the driver of the tanker as pointed out and on seeing the tanker parked at Sumerpur, he went to him for picking up a quarrel with him, and he is said to be pactified by the other accused persons; whether in such circumstances would the tanker driver accompany them in the truck voluntarily for having a fun of enjoying the drinks in the truck by leaving the tanker for one of the accused persons to drive. In natural sequences and circumstances he would be the last person to accompany such persons in the truck of the accused persons; (iii) Is it possible that in a running truck, the driver of the truck and other accused would strangulate the driver of the tanker by putting rope around his neck and pulling the same from both ends. It would be natural for the deceased to resist it, specially when all the three persons are said to have taken drinks two times on the way; (iv) What happened to the truck for whose search the accused party had actually started from Delhi and why the truck No. 8600 was not taken into custody as a case property. After all, as per prosecution, the murder had been committed in the truck itself. The tanker No. DHL 3713 even though it has come in evidence was abandoned at Alwar route has not been taken into possession; (v) The approver Dilbagh Singh and other accused persons have been arrested from Tihar jail; it has not come in the prosecution through the Investigating Officer that how the Investigating Officer had got the information of involvement of the accused persons in the said murder. It has come on record in the statement of the approver himself that he was facing some murder trial along with other persons at Delhi; it was the incumbent duty of the Investigating Officer to have taken the court into confidence that he had proceeded to procure the arrest of other persons on the basis of information which he might have received in this connection and lead evidence in this regard; (vi) So far as identification is concerned, even if they might have identified in Sambher Jail and due formalities might have been completed, but in the circumstances there is every likelihood that the accused persons might have been shown to the witnesses who are said to have purchased the oil or taken the oil from the tanker at Achrol as the accused persons were kept in police station as well. Even the witnesses of identification have not fully supported the prosecution, however, the identification had been made only to high light the aspect of sale of the oil from the tanker and not to the crime of committing the murder. (48). Even the witnesses of identification have not fully supported the prosecution, however, the identification had been made only to high light the aspect of sale of the oil from the tanker and not to the crime of committing the murder. (48). At the most what seems to have been established, even if the witnesses produced in regard to sale of oil from the tanker are believed, is that the oil was sold at Achrol from the tanker. None of the witnesses has mentioned the registration number of the tanker from which the alleged oil was being taken out. If the prosecution was sure about the sale of oil from the tanker, interestingly the witnesses who are said to have purchased the oil have not been charged with any offence either of theft or of receiving the stolen property. No record, so far the tanker is concerned, has been produced nor there is any explanation as to why either of the three vehicles out of which two were involved in direct crime had not been seized. The statement of the approver does not repose confidence for supporting the prosecution story. As alleged, admittedly, he is facing number of trials in other states. It cannot be ruled out that to solve the blind murders, the prosecution might have taken the assistance of Dilbagh Singh PW-1 for becoming the approver and Dilbagh Singh might have readily agreed on the condition of pardon having been granted to him to support the prosecution. The story put by the prosecution leaves many questions un-answered and does not seem to be natural and probable. About the crime of murder, there is no corroboration even by the facts deposed. The evidence of the approver is to be looked upon with great caution which is attached to the evidence of accompalice, but if the suspicion is removed, the evidence of the approver is found to be trust worthy and acceptable and can be acted upon. (49). So far the identification in jail is concerned, as already discussed above, the identification was for the purpose of sale of oil and until and unless it is established that the oil was sold by the tanker involved in the case, it cannot be held that because of the reason that certain oil was sold from a tanker the accused are involved in the murder. (50). (50). Counsel for the appellant also submits that in the absence of the dead-body not having been identified, the accused persons cannot be connected with the deceased. (51). In the present case, apart from approver, the prosecution had tried to establish the facts from other circumstances. It was held by the Supreme Court in Balwinder Singh vs. State of Punjab (1) that the circumstances from which the guilt as laid down should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. The court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations. The court had held in the circumstances of Balwinder Singhs case that the conduct of the complainant was un-natural for the mother keeping in view of earlier quarrels and the declarations made by the appellant of his intention to kill the daughters and it was held that the conviction was passed on surmises and conjuctures. (52). In the case of Bhiwa Doulu Patil vs. State of Maharashtra (2), it was held that there was no corroboration on the material facts and, therefore, the statement of approver could not be held to be accepted. The knife with which the murder was committed was alleged to have been prepared by the approver at the instance of the two accused persons in that case. It was held that such statement could not operate as a corroboration of the approver story. (53). In the case of Ram Prasad vs. State of Maharashtra (3), it was held that the absence of the material to corroborate the testimony of the approver regarding involvement of other accused in the crime entitles them for acquittal. (54). In view of the law laid down by the Apex Court and in view of the circumstances mentioned above, in our opinion, no confidence can be reposed in the statement of the approver in the circumstances of the case. (54). In view of the law laid down by the Apex Court and in view of the circumstances mentioned above, in our opinion, no confidence can be reposed in the statement of the approver in the circumstances of the case. The story put by the prosecution starting from Delhi for the purpose of looking for the truck No. PBO 1186 which had gone to Gujarat, by as many as 5 or 6 persons in one truck but instead of tracing the truck of Trilochan Singh, they had started looking for load for hire purposes on the way; they found there a tanker of oil at Sumerpur; picking up a quarrel with Trilochan Singh with the driver of the tanker because of old enemity, but having a bottle of drinks with the same driver in their own truck and going back towards Ajmer/Jaipur and again taking drinks on the way and then all of a sudden strangulated the driver by pulling the rope while sitting in the moving truck itself and before that having another bottle of drinks with the deceased does leave a suspicion about the verasity and the truthfullness of the version of the approver. The sequences do not seem to be natural and not of credance, coupled with the fact that nothing has come on record through the prosecution story as to how PW-1 Dilbagh Singh approver or any accused was thought to be involved in the crime when all of a sudden they were taken out from Tihar Jail and brought to the Police station and from police station to Sambher jail. None of the witnesses produced in regard to sale of oil is concerned, has given the registration number of the tanker and even there is material contradiction about the persons who are said to have sold the oil from the Tanker. Even some of the witnesses in this regard had been declared hostile. There is no other link brought by the prosecution or any fact corroborating the prosecution story to link the accused persons with the crime and if the credance of the approver is shaken, the prosecution story cannot be believed. (55). For the reasons mentioned above, we are of the opinion that the prosecution has failed to prove the case beyond reasonable doubt and the benefit must be given to the appellant accused persons. We accept the appeal Nos. (55). For the reasons mentioned above, we are of the opinion that the prosecution has failed to prove the case beyond reasonable doubt and the benefit must be given to the appellant accused persons. We accept the appeal Nos. 22/99 - Hazoor Singh vs. State and Cr. Appeal Nos. 29 of 1999 and 30/99 - Chamkor Singh vs. State and set aside the conviction and set the accused appellant at liberty. They shall be released forthwith if they are not required in any other case and as a result of the above discussion the death Reference No. 1/99 filed by State is rejected.