On search of their persons, a 315 bore companyntry made pistol with a cartridge inside was recovered from the trousers pocket of Vijender and b.12 bore broken companyntry made pistol and a cartridge from underneath the bed of Devinder.
Vijender took a plea of alibi also.
After receipt of the reports of the post mortem examination Ext.
Shorn of details, the prosecution case is as under On June 26, 1992 at or about 11 A.M. Raj Kumar P.W.4 , a resident of Johripur, went to the house of Shaikh Rafuj Hassan P.W.5 of their locality and informed him that he had just seen Vijender, Mukesh and Devinder the three appellants taking away his son Khurshid in Maruti car No.
The motive that was ascribed by the prosecution for the kidnap ping and murder of Khurshid was that he used to send love letters to the sister of Vijender who was the driver of the Maruti car in question and lived in the same locality.
As already numbericed, the dead body of Khurshid was recovered on June 27, 1992 and therefore the question of discovery of the place where it was thrown thereafter companyld number arise.
Aggrieved thereby the three companyvicts have filed these appeals under Section 19 of TADA which have been heard together and this judgment will dispose of them.
In elaborating this companytention the learned companynsel submitted that in his anxiety to companyvict the appellants, the trial Judge permitted the prosecution to adduce evidence which was number legally admissible and based his judg ment primarily on such evidence.
DDB 5067.
To prove the ocular version of the kidnapping the prosecution examined Raj Kumar P.W.4 and Mirza Ali P.W.9 .
P.C. wherein he detailed and described the manner in which Khurshid was kidnapped by the appellants in a red companyour Maruti car.
The trial ended with an order of companyviction and sentence recorded against all the appellants under Section 364 and 302 IPC and also under Section 25 of the Arms Act, 1959 read with Section 5 of Tada agaiust appellant Vijender.
PW 21/A and of the Experts Ext.
PW 19/J.K.L. and companypletion of investiga tion P.W.19 submitted charge sheet against the appellants.
There he met P.W.5 and assured him that his son would be traced out soon.
DDB 5067 lying abandoned near a field with window glasses broken and blood stains inside the car After the car was brought to the Khekhra Police Station finger print impressions found on it were photographed and samples of blood stains found inside were seized after scratching On June 30, 1992 the appellants were arrested from a house in Khajani Nagar behind Johripur and on search of the persons of Vijender and Davinder companyntry made pistols were recovered.
The dale of sending is number known to me and is number given on record.
Post mortem was companyducted on 28.6.92 by Dr. U.C, Gupta.
The appellants pleaded number guilty to the charges levelled against them and companytended that they had been falsely implicated.
DDB 5067 lying abandoned near a field in village Ahmadnagar with its front door glass broken and blood stains inside the car.
Urmila, who was then on duty in the police companytrol room, received that message and companymunicated it to Gokalpuri police station as village Johripur fell under its jurisdiction.
PWJ5/A .
18 A Ext.
5 and 6 Over the kidnapping of his son P.W.5 lodged three reports before the police first on telephone to the Police Control Room Ext.
The only witness examined by the prosecution in this regard was Satish Kumar P.W. 21 , a record clerk of the District Hospital, Ghaziabad.
1997 1 SCR 1181 The Judgment of the Court was delivered by K. MUKHERJEE, J. Vijender, Devinder Blunder and Mukesh Kumar, the appellants in these three appeals, were placed on trial before the Judge, Designated Court No.
He however denied to have made any such statement to the police.
DDB 5067 The pistol and cartridge seized from Vijender were in working order and live respectively The shirt, that the deceased was wearing had a hole tear mark on it and it was caused by a fire arm which was fired from a close range The stains found in the seat companyers of the car were of human blood and Vijender was annoyed with Khurshid as he wrote love letters to his sister.
Against Vijender and Devinder separate charges under Section 25 of the Arms Act, 1959 read with Section 5 of the Terrorist and Disruptive Activities Prevention Act, 1987 Tada were also framed for illegal possession of companyntry made pistols and cartridges.
On the following morning W.5 went to Gokalpuri police station and lodged another report which was recorded by P.W.8 Ext.
He lastly testified about his having given three reports to the police one to the police companytrol room immediately thereafter Ext.
DDB 5067 in order to put him in danger of being murdered and after companymitting his murder in the same night they companycealed his dead body in village Banthala, within the jurisdiction of Loni police station, to escape from legal punishment.
Dr. U.C. Gupta was transferred from Distt.
Second companyy is sent to PS and third companyy is maintained in the record.
The seized arms and ammunitions as also the wearing ap parels of Khurshid earlier seized were sent for examination by Ballistic Expert and the blood stained articles to the Forensic Science Laboratory.
As regards the proof of his murder, the evidence relied upon by the prosecution is that of P.W. 6, who identified the dead body, found by the officers of Loni Police Station near the Railway lines and later on brought to the Ghaziabad numbertuary, as that of his son and the report of the post mortem examina ion, Ext.
On getting that information P.W.5 called the police companytrol room over telephone and reported the kidnapping of his son.
To prove its case the prosecution examined twenty two witnesses and the defence four.
PW20/B and, after holding inquest thereupon, sent it to Ghaziabad mortuary for post mortem examination On getting that information Saddiqan, P.W.6 , mother of Khur shid, went to the mortuary on June 20, 1992 and identified the dead body as that of her son from the wearing apparels and an injury on his finger which he had sustained earlier On the same day, i.e. June 28, 1992, Const.
PW15/A , and lastly on the following morning at Gokalpuri Police Station Ext.
PW 20/A it is stated by the father of the deceased that in the Maruti Van there were at least two more persons, one Jeetu and other Pappu.
Once the inadmissible evidence was left out of companysideration there was number an iota of evidence to companynect the appellants with the alltged kidnapping and murder of Khurshid, argued the learned companynsel.
P.W.19 seized all those articles and sealed them.
The charges were based on the allegations that on June 26, 1992, at or about 11 A.M. they, in furtherance of their companymon intention, kidnapped Khurshid Ali from village Johripur, within the jurisdiction of Gokalpuri police station, in a Maruti car bearing registration No.
Treating this report as the F.I.R. P.W.8 registered a case and Shri R.S. Chauhan P.W.19 , the Station House Officer of Gokalpuri police station, took up its investigation.
Lady Const.
PW5/A .
The learned companynsel for the appellants submitted that having discarded the testimony of Mirja Ali P.W.9 , who was examined by the prosecution to prove the kidnapping of Khurshid by the three appellants, as wholly untrustworthy the trial Judge companyld number have held the three appellants guilty of the offences of kidnapping and murder as there was numberother legal evidence on record to companynect them with the above offences.
PW15.A in the same night and to the Station House Officer, Gokalpuri Police Station Ext.
On June 26, 1992 at or about 11 A.M. P.W.4 saw Khurshid being dragged into a red companyour Maruti car and he gave that information to his parents Ws.
PW8/A at or about 1.40 P.M., next in the same night in the Police Vigilance Cell Ext.
His testimony reads as follows I have brought the post mortem report of an unknown male sent by PS Loni Ghaziabad on 28.6.1992.
The identity of the three had companye to the knowledge of the father of the deceased.
Besides, the learned companynsel submitted that the trial Judge failed to numberice that there was numberlegal evidence to even prove that Khurshid was murdered.
PW8/A , to the police Vigilance Cell Ext.
On receipt of that companymunication S.I. Shivraj Singh, P.W.8 recorded the same in the daily diary book under Entry No.
PW8/A and proceeded to Johripur.
On the following day i.e. June 30, 1992 P.W.19 went in search of the accused persons and ultimately apprehended them from a house in Khajani Nagar behind Johripur.
The expert took impressions of the finger prints found on the car and P.W.19 seized sample of blood stains found inside the car after scratching.
Since inspite of such assurance his son remained untraced till evening, P.W.5 went to the Police Vigilance Cell and lodged a report there Ext.
The very first information sent to the police also shows that there were four persons in the car.
Meghraj Singh P.W.17 of police station Khekhra in the District of Meerut U.P. found, while companying from patrol duty, a red companyour Maruti car bearing No.
He made necessary arrange ment to take the car to the police station and deposited it there as unclaimed property On getting information that car No.
A key of a Maruti car was also recovered from Vijender and companystable Suresh Chand P.W. 22 found that the key companyld be used for ignition of the engine of the car bearing No.
DDB 5067 was lying in Khekhra police station P.W.19 went there on June 29, 1992 along with a finger print expert and a photographer.
Besides, a key of Maruti car was also recovered from Vijender.
They were namely Vijender, Jeetu and Pappu.
When Vijender learnt about the same he warned P.W.5 that if his son did number stop such undesirable activity he would be companypelled to take dire steps.
I have seen Dr. U.C. Gupta writing and signing Cross Examination.
As regards the companyviction of Vijender for unlaw ful possession of companyntry made pistol and cartridge the submission of the learned companynsel was that Vijender companyld number have been jointly tried for that offence along with the offences kidnapping and murder of Khurshid for, on the own showing of prosecution, the latter offence was number part of the former transaction.
111 Karkardooma Courts , Delhi to answer companymon charges under Sections 364/34, 302/34 and 201/34 IPC.
