Full Judgment Text
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PETITIONER:
SURINDER PAL JAIN
Vs.
RESPONDENT:
DELHI ADMINISTRATION
DATE OF JUDGMENT05/03/1993
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
SINGH N.P. (J)
CITATION:
1993 AIR 1723 1993 SCR (2) 226
1993 SCC Supl. (3) 681 JT 1993 (2) 206
1993 SCALE (1)792
ACT:
Indian Penal Code, 1860:
Sections 203 and 302--Appellant accused of murdering his
wife--No eye witness of occurrence--Prosecution case based
on circumstantial evidence--Disclosure statement of accused
and recovery of ornaments of deceased in pursuance
thereof--Dogs of dog squad pointing to appellant--Sessions
Court acquitting accused--High Court setting aside acquittal
and convicting appellant--Held When case based on
circumstantial evidence--Motive assumes pertinent
significance--Finding of guilt recorded by High Court not
sustainable in law.
HEADNOTE:
The appellant and his wife went to sleep in the back
varandah of their house on the fateful night of 25th/26th
July, 1976 while the appellant’s brother alongwith his wife
and children went to sleep separately in their bed-room in
the same house. The Police Control Room was informed over
the telephone by a neighbour Sulekh Chand Jain at 4.55 A.M.
that an incident had taken place in the house and on
receiving the telephone message, the S.I. made a record of
it in the daily diary and passed on the information to the
duty officer at the police station, who deputed an A.S.I. to
proceed to the spot for investigation. After reaching the
spot, the A.S.I. informed the police station on telephone
that a murder had taken place. The information was recorded
and the SHO immediately left for the spot alongwith S.I. The
police party arrived at the spot at about 5.35 a.m. and took
charge of the investigation. The appellant was present near
the dead-body and on interrogation, the appellant informed
the police party that his brother and family had retired for
the night in their bed room at about 10.00 P.M. and he
alongwith his wife had slept in the back verandah, and that
when he got up at 3.45 A.M. he noticed that his wife had
been murdered by somebody by strangulation while committing
the theft of the gold chain, eartops and golden bangles that
she was wearing.
The crime team as well as the dog squad were summoned. Both
the
227
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dogs of the dog squad were first let loose and after picking
up the smell from the lock lying in the corner of the back
courtyard and from the spot, went to the room where the
appellant was sitting and each of the dogs pointed towards
him by turn. That raised a suspicion against the appellant.
The SHO then asked the appellant to remove his shirt and
found that the appellant had injuries in the nature of
bruises etc. on the front part of his, body, on the chest,
as well as on his back, The appellant was thereafter taken
for further interrogation to the police station, and in the
presence of the Sub Inspector, PWI and PW2 he made a
disclosure statement to the effect that he had concealed the
golden chain and the bangles in his bathroom and in
pursuance of the disclosure statement, the appellant led the
police party to the bathroom of his house and after removing
the cover from the drain hole, took out the golden chain and
the bangles and handed them over to SHO. The appellant was
placed under arrest. After the disclosure statement was
made the case which was originally registered under Section
460 IPC was converted into one under Section 302 read with
section 203 IPC.
After completion of the investigation, the challan was filed
against the appellant and he was tried for offences under
Section 302/203 IPC in the Court of the Additional Sessions
Judge. The prosecution sought to establish the case against
the appellant on the basis of circumstantial evidence, there
being no eye-witness of the occurrence. The circumstances
set up by the prosecution were : (i) information to the
police at 4.55 A.M given by a neighbour and not the
appellant; (ii) that information that a murder had taken
place was not given but intimating the happening of an
incident; (iii) The accused having slept at night in the
verandah with tile deceased after having locked the
collapsable door of the verandah from inside; (iv) The
deceased and accused were last seen together; (v) The dogs
of the dog squad having pointed out to the accused after
picking up scent from the lock; (vi) The ornaments which
were on the person of the deceased while she was sleeping,
and found missing when she was discovered dead, were
recovered from the drain hole of the bath room attached to
the bed room of the accused in consequence of and in pur-
suance to the disclosure statement made by the accused;
(vii) injuries found on the person of the accused in the
nature of abrasions, contusions, and (viii) the accused
having given false information to the police by means of his
statement Ext. P5.
228
The Sessions Judge after carefully analysing the aforesaid
circumstances held that the prosecution has entirely failed
to prove any of the circumstances set up against the
accused, much less to establish the chain of circumstances,
so as to bring out a nexus between the crime and the
accused, and acquitted the appellant for the offences under
Section 302/203 IPC.
The State appealed to the High Court and a Division Bench
reveresed the order of acquittal of the appellant. The High
Court held that the circumstances formed a chain and the
sequences were so complete by themselves that one was left
in no manner of doubt that the appellant alone had committed
the crime. The appeal was allowed, the order of acquittal
was set aside, and the appellant was sentenced to undergo
rigorous imprisonment for life under Section 302 IPC, and
also to undergo rigorous imprisonment for a period of one
year under Section 203 IPC.
In the appeal to this Court it was contended on behalf of
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the appellant that the approach of the High Court was
totally erroneous and that a well considered and well
reasoned judgment of the Trial Court was upset by the High
Court by drawing inferences which were not available from
the record and by ignoring material discrepancies and
infirmities in the prosecution evidence, which not only did
not establish various circumstances but which also showed
that the chain of circumstantial evidence was wholly
incomplete. It was further contended that the appellant had
been roped in on the basis of misguided suspicion and that
the circumstances relied upon by the prosecution were not
exclude the hypothesis, other than that of the guilt of the
appellant. The appeal was contested by the State submitting
that some of the circumstances like the pointing out of the
appellant by the dogs of the Dog Squad, the disclosure
statement and the recovery of ornaments as a consequence
thereof. and the presence of injuries on the person of
appellant, were of such a conclusive and clinching nature
that they left no doubt that the appellant had committed the
crime, and this was fortified when the appellant had made
the attempt to mislead the investigating officer by giving a
false version with a view to screen himself.
Allowing the appeal, and setting aside the judgment of the
High Court convicting the appellant, this Court,
HELD : 1. The High Court did not properly appreciate the
prosecu-
229
tion evidence while reversing the well considered judgment
of the Sessions Judge. On independent appraisal of the
evidence, the prosecution evidence relating to the
disclosure statement and the recovery of ornaments is not
only discrepent and contradictory but also suffers from
glaring infirmities and improbabilities rendering it unsafe
to rely upon the same.
[244H, 245B]
2. The Sessions Judge was perfectly justified in
acquitting the appellant of all the charges and the
reasoning given and the findings recorded are sound, cogent
and reasonable. The High Court was not justified to set
aside those findings on surmises and conjectures. The
finding of guilt recorded against the appellant by the High
Court is not sustainable in law and the prosecution has not
established the case against the appellant beyond a
reasonable doubt. [249B]
3(a). In a case based on circumstantial evidence, motive
assumes pertinent significance as existence of the motive is
an enlightening factor in a process of presumptive reasoning
in such a case. The absence of motive, however, puts the
court on its guard to scrutinise the circumstances more
carefully to ensure that suspicion and conjecture do not
take place of legal proof.
3(b). In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
those circumstances must be conclusive in nature. Moreover,
the established facts should be consistent only with the
hypothesis of the guilt of the accused alone and totally
inconsistent with his innocence. [238E-F]
4. No motive has been established by the prosecution for
the appellant to commit the murder of his wife and the
evidence of Tara Chand father of the deceased as well as the
sister of the deceased and the tenants living in the same
house disclose that the relations between the husband and
wife were cordial. [238E]
5. The circumstance (of the disclosure statement and the
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consequent recovery pursuant thereto of the ornaments
belonging to the deceased is of such an incriminating nature
that if found established by reliable and trustworthy
evidence, it would go a long way to furnish proof of the
guilt of the appellant and connect him with the crime and if
the evidence in
230
support of that circumstance is found to be not reliable,
the entire chain of circumstantial evidence will snap so
badly as to affect the credibility of the prosecution case
as a whole. [238G-H)
6. According to the prosecution after the appellant had
been taken to the police station by the investigating
officer he was interrogated after being placed under arrest.
He voluntarily made a disclosure statement Ex.PC. The
disclosure statement was recorded by the SHO and has been
attested by Kuldip Kaul PWI, SI Dalip singh PW6 and Harnaik
Singh PW2. Pursuant to the disclosure statement, the
appellant is alleged to have led the police party to the
recovery of the ornaments from a drain-hole in his bathroom.
The recovery memo EX.PF was prepared at the spot and was
attested by PW6. PWl and PW2 besides the Investigating
Officer. [239A-B]
7. According to the appellant, however, he had made no
disclosure statement nor led the police party to the
recovery of the ornaments as alleged, and according to the
defence version, the missing ornaments had in fact been
recovered by the police party around 11 A.M. during search
from the service lane, from underneath a slab, near the
boundary wall and at that time the appellant and Jagminder
Dass Jain were also present. This defence version is
supported by the evidence of DW2, Tara Chand, father of the
deceased. [242D-E]
8. The Sessions Judge carefully considered the evidence
led by the prosecution with regard to the disclosure
statement and the recovery of ornaments. It was found that
the evidence of Harnaik Singh PW2, who according to DW11
Sunder Lal constable of police station Defence Colony, had
been earlier also cited as a witness for the prosecution in
a case investigated by Harmit Singh the then Sub-Inspector
of police and the present Investigation Officer was not
reliable and that the Investigating Officer had not told the
truth when he had deposed that he did not know Harnaik Singh
earlier. The Sessions Judge also found the evidence of PW1
Kuldip Kaul as not reliable or trustworthy and disbelieved
his testimony by giving cogent reasons after properly
appreciating the evidence led by the prosecution. The
defence version with regard to the recovery found as more
probable and it was opined that the investigating officer
had created false cluses and fabricated false evidence.
[243H, 244A-B-D]
9. The High Court on the other hand did not deal with the
various discrepancies and contradictions appearing in the
prosecution evidence
231
relating to the making of the disclosure statement and the
recovery of the ornaments, but place reliance on the
testimony of Kuldip Kaul PWl and Harnaik Singh PW2 to hold
that the disclosure statement and the recovery had been made
in the manner suggested by the prosecution. [244G]
10. There is contradiction between the evidence of Kuldip
Kaul PWl and the I.O. as to the place where Kuldip Kaul
signed the recovery memo. According to the I.O. it was
signed at the spot while according to Kuldip Kaul PW1, he
had returned to the police station and there signed the
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recovery memo. After carefully analysing the evidence, it
is found that Kuldip Kaul PWl was a convenient witness and
his evidence does not appear to be trustworthy. [245B-C]
11. As regards the recovery of ornaments also, there is a
very serious infirmity which emerges from the testimony of
Harnaik Singh PW2. Contrary to what the I.O. and the other
witnesses stated, Harnaik Singh PW2 deposed that the
ornaments were taken out by the Sardarji I.O. from the drain
hole and not by the appellant. This probabilises the
defence version that the ornaments had been recovered during
the search and were with the I.O. when the ritual of the
recovery under Section 27 of the Evidence Act was performed.
The contradictions in the evidence of the I.O. and S.I.
Dalip Singh PW6 as to who had weight the ornaments after
their alleged recovery also casts doubt on the correctness
of the prosecution story and the bonafides of the
investigation. [245G-H]
12. Having regard to the serious discrepancies,
contradictions and the attempt of the Investigating Officer
to create false clues and fabricate false evidence, the
Sessions Judge was perfectly justified in rejecting the
prosecution evidence relating to the disclosure statement
Ex. PC and the consequent recovery of the ornaments. [247C]
13. The prosecution has failed to establish that the
appellant did make the disclosure statement as alleged by
the prosecution or led to the recovery of the ornaments
belonging to the deceased in the manner suggested by the
prosecution. This piece of circumstantial evidence,
therefore, has not at all been established, much less
conclusively. [247D]
14. Though with the ruling out of the circumstance relating
to the recovery of the ornaments as not having been
established conclusively, the chain of the circumstantial
evidence snaps badly, there are some other
232
circumstances also in the prosecution case which militate
against its correctness. Admittedly, the nail clippings of
the nails of the deceased had been taken by the police.
Were was also recovery of the hair from near the cot where
the dead body was lying and the removal of the hair from the
scalp of the appellant by the I.O. for the purpose of their
comparison. The report of the chemical examiner has not
connected the hair recovered from the cot with those of the
appellant. There is no material on the record either to
show that the nail clipping had any blood, which could have
tallied with the blood group of the appellant. Thus, both
the nail clippings and the hair have failed to connect the
appellant with the crime. [247F-H]
15. The possibility that the entire case was built up on
suspicion after the dogs of the dog squad pointed towards
the appellant connot be ruled out. Since, the appellant had
slept in the verandah near the cot where the dead body of
his wife was found; had locked the collapsable door with the
recovered lock before going to sleep and had himself been
close to the dead body before the police came, the picking
up of the smell by the dogs and pointing towards the accused
could not be said to be a circumstance which could exclude
the possibility of guilt of any person other than that of
the appellant or be compatible only with hypothesis of guilt
of the appellant. The pointing out by the dogs could as
well lead to a misguided suspicion that the appellant had
committed the crime. [248E-F]
16. The explanation of the appellant regarding the injuries
on his person as having been caused by the police is also
quite plausible because according to the father of the
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deceased, the sister of the deceased, the tenants of the
house and other neighbours who had reached the spot, the
appellant was wearing only a vest and the pyjama and no
shirt and there were no marks of injuries on his body before
he was taken to the police station. The prosecution case
regarding the presence of injuries on the person of the
deceased also therefore, is quite doubtful. [248G-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 123 of
1985.
From the Judgment and Order dated 12.11.84 of the Delhi High
Court in State Criminal Appeal No. 71 of 1978.
R.K. Garg and Rajendra Prasad Singh for the Appellant.
233
N.N. Goswamy and Ashok Bhan for the Respondent.
The Judgment of the Court was delivered by
DR. ANAND, J. This appeal by special leave, is directed
against the judgment of the High Court of Delhi dated 12th
of November 1984, setting aside an order of the Additional
Sessions Judge New Delhi, acquitting the appellant of an
offence under Section 302/203 IPC.
The prosecution case is that on the fateful night of
25th/26th July, 1976, the appellant and his wife, Usha Jain,
went to sleep in the back verandah of their house situated
at P-5, Green Park Extension, New Delhi while his brother
M.P. Jain alongwith his wife Sharda and children went to
sleep separately in their bed-room in the same house.
Police Control Room was informed over the telephone by
Sulekh Chand Jain at 4.55 A.M. that an incident had taken
place at P-5, Green Park Extension and on receiving the
telephone message, S.I. Mauji Ram made a record of it in the
daily diary and passed on the information to the duty
officer at police station Hauz Khas. ASI Maha Singh was
deputed to proceed to the spot for investigation of the
case. After reaching the spot, the said ASI Maha Singh
informed the police station on telephone that a murder had
taken place. The information so provided was recorded by
ASI Mangal Sen in the daily diary Whereupon SHO Harmit Singh
immediately left for the spot alongwith SI Dalip Singh, SI
Moti Singh, Constable Bhawani Dutt and Constable Randhir
Singh. The police party arrived at the spot at about 5.35
a.m. and took charge of the investigation. The appellant
was present near the dead-body which had been covered by a
Dhoti and on interrogation, the appellant informed the
police party that his brother and family had retired for the
night in their bed room at about 10.00 p.m. and he alongwith
his wife had slept in the back verandah. Before going to
sleep, he had locked the collapsable door of the back
verandah. The wife of the appellant was wearing a gold
chain on her neck, eartops in her ears and golden bangles on
her wrists besides glass bangles. At about 1.30 a.m., the
appellant felt thirsty and asked his wife to give him water
and after some time when he felt chilly, he went inside the
room. He slept in the room while his wife kept sleeping
outside. At about 3.45 a.m., the appellant got up to
urinate and when he went outside the room, he found that his
wife was lying on the cot with her face upwards but her
clothes were in a loose condition and he was almost naked
upto the thighs. On going closer to
234
the cot, he found her tongue protruding and on touching her,
he found her dead. He noticed some scratches on her face
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and neck and also discovered that the golden chain which was
on her neck and golden bangles were missing from her body.
According to the appellant, his wife had been murdered by
somebody by strangulation while committing the theft of the
golden chain and the bangles. He started screaming and his
brother, the brother’s wife as well as some neighbours came
there. Since, his telephone was found to be out of order,
police was informed at his request by Sulekh Chand, another
neighbour, from his telephone. The parents of the deceased,
living in Sonepat were also conveyed the tragic news on
telephone through their neighbours. The statement of the
appellant which revealed a case of lurking house trespass,
with a view to commit offence of theft and murder, was
recorded as Ex. P5 and a case under Section 460 IPC was
registered. The statement of the appellant Ex. P5, was
despatched by SHO Harmit Singh to the police station with
his endorsement for registration of a case under Section 460
IPC. Formal FIR was registered by ASI Mangal Sen at the
police station and the same was received back by the SHO at
the house of the appellant at about 6.45 a.m. The crime team
as also the dog squad were summoned. Both the dogs of the
dog squad were first let loose to pick up the smell and
according to the ASI Ranbir Singh, in-charge of the dog
squad, the dogs after picking up the smell from the lock
lying in the corner of the back courtyard and from the spot,
went to the room where the appellant was sitting and each of
the dogs pointed towards him by turn. That raised a
suspicion against the appellant. According to the SHO, he
then asked the appellant to remove his shirt and found that
the appellant had injuries in the nature of bruises etc. on
the front part of his body, on the chest, as well as on his
back. Since the appellant had told the police that the
bangles of his wife were identical to the bangles of Sharda,
the wife of his brother M.P. Jain, who also is the sister of
the deceased, the SHO took into possession four bangles from
Sharda also for comparing the same in case the stolen
property was recovered. The appellant was thereafter taken
for further interrogation to the police station. Before
proceeding to the police station., the SHO had effected
recoveries of various articles including some hair, lying
near the dead body on the cot. The appellant had produced
the key at the asking of the SHO, which purported to be the
key of the lock which had been found lying in the back
court-yard and the same was taken into possession. The lock
was also taken into possession but it did not appear to have
been
235
broken or tampered with. The recovery of the key was
witnessed amongst others by Kuldip Kaul PWl who was present
in the crowd outside the home of the appellant. The inquest
proceedings were conducted by SI Moti Singh and the body was
thereafter sent for postmortem examination.
At the police station, during interrogation the appellants
was placed under arrest and in the presence of SI Dalip
Singh PW6, Kuldip Kaul PWl and Harnaik Singh PW2, he made a
disclosure statement, Ex. PC, to the effect that he had
concealed the golden chain and the bangles in his bathroom
and in pursuance of the disclosure statement, the appellant
led the police party to the bathroom of his house and after
removing the cover from the drain hole, took out the golden
chain and the bangles and handed the same over to SHO Harmit
Singh in presence of the witnesses. Recovery memo, EX.PF
was prepared and the golden chain and the bangles after
being duly weighed were sealed separately and the seal was
handed over to Kuldip Kaul PW1. The appellant was sent for
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medical examination, after memo of his personal search EX.PE
was prepared. Dr. Dharam Pal PW15 found as many 18 injuries
on the person of the appellant consisting of bruises and
abrasions on the nose, chest, arm shoulder and on the
umbilical region. The injuries were stated to have been
caused by blunt weapon.
The postmortem on the dead body of Usha Jain was conducted
on 27.7.1976 at 9.00 a.m. by Dr. Bharat Singh PW-4 and
according to the postmortem report EX.PL, all the injuries
found on the person of the deceased were ante-mortem and the
same were possible by throttling the deceased and that the
death of Usha Jain was caused by asphyxia resulting from
throttling. The deceased was carrying 7th month pregnancy
at the time of her death.
After the disclosure statement was made by the appellant
leading to the recovery of the ornaments and after noticing
injuries on his person, the case which was originally
registered under Section 460 IPC was converted, into one
under Section 302/203 IPC. The SHO during the course of
investigation also took sample hair of the appellant and
sent the same alongwith the hair recovered from the cot of
the deceased to the Central Forensic Science Laboratory.
The nail clippings of the deceased were also sent for
analysis to CFSL. Site plan, EX.PO, was also prepared
during the investigation. After completion of the
investigation, challan was filed against the appellant and
he was sent up for trial for offences under Section 302/203
IPC in the court of Additional Sessions Judge, New Delhi.
236
There being no eye-witness of the occurrence, the
prosecution sought to establish the case against the
appellant on the basis of circumstantial evidence. The
circumstances set up by the prosecution against the appel-
lant during the trial were
(i) information to the police at 4.55 AM
given by a neighbour and not the appellant;
(ii) that information not specifically giving
out that a murder had taken place and simply
intimating happening of an incident;
(iii) The accused having slept alone at night
in the verandah with the deceased after having
locked the collapsable door of that verandah
from inside and that lock having been found in
the corner of the back courtyard in the
morning without being tampered with;
(iv) The deceased and accused were last seen
together,
(v) The dogs of the Dog Squad having pointed
out the accused after picking up scent from
that lock;
(vi) The ornaments which were stated to be on
the person of the deceased while she was
sleeping, and which were found missing when
she was discovered dead having been recovered
from the drain hole of the bath room attached
to the bed room of the accused in consequence
of and in pursuance of a disclousre statement
made by the accused;
(vii) injuries found on the person of the
accused in the nature of abrasions, contusions
and lastly;
(viii) the accused having given false
information to the police by means of hi
s
statement Ext. P5"
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The learned Sessions Judge carefully analysed each of the
circumstance and finally observed
"On a resume of the analysis of prosecution
evidence, and
237
on a very careful appraisal of all the facts
and circumstances set up by the prosecution, I
am of my earnestly considered view that the
prosecution in this case has entirely failed
to prove any of the circumstances set up
against the accused, much less to establish
the chain of circumstances, so as to bring out
a nexus between the crime and the accused."
The appellant was, therefore, acquitted of the offences
under Section 302/203 IPC.
On an appeal by the State, a division bench of the High
Court reversed the order of acquittal of the appellant. The
High Court held that the circumstances formed a chain and
sequences so complete by themselves that one was left in no
manner of doubt that the appellant and the appellant alone
had committed the crime. The appeal was accepted and the
order of acquittal was set aside. The appellant was
sentenced to undergo rigorous imprisonment for life under
Section 302 IPC and also to undergo rigorous imprisonment
for a period of one year under Section 203 IPC. Both the
sentences were directed to run concurrently.
Appearing for the appellant, Mr. R.K. Garg, the learned
senior counsel submitted that the approach of the High Court
was totally erroneous and that a well considered and well
reasoned judgment of the Trial Court was upset by the High
Court by drawing inferences which were not available from
the record and by ignoring material discrepancies and
infirmities in the prosecution evidence which not only did
not establish various circumstances but which also showed
that the chain of circumstantial evidence was wholly
incomplete. Learned counsel for the appellant submitted
that the appellant had been roped in on the basis of
misguided suspicion and that the circumstances relied upon
by the prosecution were not of any conclusive nature and
they did not exclude the hypothesis, other than that of the
guilt of the appellant. It was emphasised that the inves-
tigating officer had created false clues and suppressed
material which went against the prosecuting version and
supported the defence version. He argued that the High
Court should have drawn adverse inference against the
prosecution for not producing the first informant and
withholding the evidence of the father of the deceased.
Mr. N.N. Goswami, learned senior counsel assisted by Mr.
Ashok
238
Bhan, advocate, on the other hand submitted that some of the
circumstances like the pointing out of the appellant by the
dogs of the Dog Squad, after picking up the scent from the
place of occurence; the disclosure statement and the
recovery of ornaments as a consequence thereof at the
instance of appellant and the presence of injuries on the
person of appellant, were of such a conclusive and clinching
nature that they left no doubt that the appellant had
committed the crime. It was submitted that the appellant
had made attempt to mislead the investigating officer by
giving a false version with a view to screen himself.
According to the learned counsel the established
circumstance could only lead to the hypothesis consistent
with the guilt of the appellant and not with his innocence.
We shall now consider various circumstances with a view to
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determine whether the circumstances alleged against the
appellant have been established and the chain of evidence is
so complete as to lead to no other hypothesis except the one
consistent with the guilt of the accused.
There is no motive established in this case by the
prosecution for the appellant to commit murder of his wife
and the evidence of Tara Chand father of the deceased as
welt as the sister of the deceased and the tenants living
in, the same house disclosed that the relations between the
husband and wife were cordial. In a case based on
circumstantial evidence, motive assumes pertinent
significance as existence of the motive is an enlightening
factor in a process of presumptive reasoning in such a case.
The absence of motive, however, puts the court on its guard
to scrutinise the circumstances more carefully to ensure
that suspicion and conjecture do not take place of legal
proof
Since, the disclosure statement and the consequent recovery
pursuant thereto of the ornaments belonging to the deceased
has been considered to be one of the most important piece of
circumstantial evidence in the case not only by the High
Court but has also before us by the learned counsel
appearing for the State, we shall first consider that
circumstance. This circumstance is indeed of such an
incriminating nature that if found to have been established
by reliable and trustworthy evidence, it would go a long way
to furnish proof of the guilt of the appellant and connect
him with the crime and on the other hand, if the evidence in
support of that circumstance is found to be not reliable,
the entire chain of circumstantial evidence will snap so
badly as to affect the credibility of the prosecution case
as a whole.
239
According to the prosecution after the appellant had been
taken to the police station by the investigating officer he
was interrogated interrogated after being placed under
arrest. He voluntarily made a disclosure statement EX.PC.
The disclosure statement was recorded by the SHO and has
been attested by Kuldip Kaul PW-1, SI Dalip Singh PW-6 and
Harnaik Singh PW2. Pursuant to the disclosure statement,
the appellant is alleged to have led the police party to the
recovery of the ornaments from a drain-hole in his bathroom.
The recovery memo EX.PF was prepared at the spot and was
attested by SI Dalip Singh PW-6, Kuldip Kaul PW-1 and
Hirnaik Singh PW-2 besides the Investigating Officer. We
shall, therefore, first analyse the evidence of the
witnesses of the disclosure statement and the recovery memo.
Inspector Harmit Singh, PW-19, SHO, while deposing about the
disclosure statement and the consequent recovery of the
ornaments at the pointing out by the appellant, stated that
he interrogated the appellant in presence of Dalip Singh,
Kuldip Kaul and Harnaik Singh PWs at the police station at
about 1.45 p.m. and in their presence the appellant made the
disclosure statement Ex. PC and then led the party to his
house and pointing out the drain hole in the bath room, the
appellant took out from that drain hole, three golden
bangles and one golden chain, which were weighed separately
and while golden bangles were put in one packet the golden
chain was put in another packet and the seal used to seal
both the packets was handed over to Kuldip Kaul PWI. The
recovery memo EX.PF was prepared at the spot which was
signed by the witnesses then and there at about 2 or 2.30
p.m. In his cross-examination, the Investigating Officer
denied the suggestion that the bangles and the chain were
recovered from underneath a slab in the service lane in the
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presence of the appellant and Jagminder Dass Jain and a memo
had been prepared which was signed by them. He also stated
that he did not call any goldsmith to weigh the ornaments
because he had taken with him the measure and the scale. He
then asserted that "Kuldip Kaul did not come back with me to
the police station when I came back in the evening after
recoveries of the ornaments etc. had been effected at the
spot. I recorded statement of Kuldip Kaul at the spot after
recoveries. That was a complete statement of his and I
recorded only one statement of his on that day. Kuldip Kaul
left from the spot and we were still there when he left."
Regarding Harnaik Singh PW2, the I.O. stated "I had gone out
to
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look for another witness and I found at that time Harnaik
Singh reversing his taxi in the compound of the police
station and then I summoned him. He had told me that he had
dropped a passenger and was taking out his taxi. I did not
see passenger going inside. There are 60/70 quarters at the
back of the police station and that passengers might have
gone to any of those quarters. The disclosure statement was
made by the accused in his presence. I had read out the
papers to Harnaik Singh before getting his signature. In
fact, it was written in his presence and whatever were
dictated by the accused was within his healing. It is
incorrect to suggest that disclosure statement was already
written and I got signatures of Harnaik Singh without
explaining to him the document and assuring him to sign on
my trust." The witness also asserted that he had seen
Harnaik Singh for the first time only at about 2 or 2.30
p.m. outside the police station while reversing the taxi and
did not know him from before. Let us now examine as to what
the other witnesses have to say in this regard.
Kuldip Kaul PW1, while admitting that he was present outside
the house of the appellant in the morning at about 6.30 a.m.
when the police party had reached there and had offered
himself to join the investigation, went on to say that after
the SHO had lifted the shirt of the appellant and found 15-
20 marks of scratches on the chest of the appellant, they
all came to the police station along with the appellant. He
added that while they were sitting at the police station,
Harnaik Singh PW2 also came there along with SHO Harmit
Singh and after some initial hesitation, the appellant
disclosed that he had kept one golden chain and three
bangles which his wife was wearing, in the drain-hole of the
bath room of his house and he could show the same to the
police and get them recovered. He deposed that disclosure
statement EX.PC was prepared at the police station and was
signed by him as well as by the other witnesses present
there. Thereafter, the appellant was arrested and he led
the police party to his house where he pointed out the
drain-hole in the bath room and after removing the cover of
the drain hole, the appellant took out from inside the drain
hole, a golden chain and three golden bangles and handed
over the same to SHO Harmit Singh. Memo of recovery EX.PF
was prepared and was signed by the witnesses. With a view
to assert his independence and that he had no earlier
connection with the I.O., he stated "I came to know SHO
Harmit Singh since March, 1976, when I organised a function
of Youth Congress and had contacted the SHO for arrangements
for the said function. I have, never gone to the police
station in any other connection or regarding public
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grievances. I have not organised any other function in the
area except the one stated above. Regarding the signing of
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the recovery memo at the house of the appellant and his
leaving for his house from there as was deposed to by the
Investigating Officer, Kuldip Kaul PWl stated "I had come
back with the police to P.S. after the recovery of the
ornaments and there at about 3.30 p.m. my, statement was
recorded by the police and I came back home at about 4 p.m.
"
Harnaik Singh PW2 giving his version regarding the
disclosure statement and the consequent recovery stated
"About 4-1/2 or 5 months back at about 2/2.30 p.m. I had
taken a passenger in my taxi to the quarters of P.S. Hauz
Khas. When I was coming back after dropping the passenger
one police officer, Sardarji, who was standing at the gate
of the P.S. called me, and took me inside the P.S. There is
one room, besides the police were one Mr. Kaul PWl and
Surinder Pal Jain, accused present in court. Then in the
room that Sardarji police officer took up one paper which
had been prepared already and asked me to sign, saying that
they have to conduct some inquiry in the case. Then that
Sardarji told me to accompany the police party to Green
Park. Then we went there besides the police party and
myself PWl and the accused were also there. On reaching the
house in Green Park the accused led the police party to the
bath room and I also followed them in to the both room.
Then the Sardarji took out there bangles and one gold chain
from the gutter of the bath room. The Sardarji took those
three bangles from the gutter on being told by the accused."
He asserted that he did not at all know the Sardarji police
officer prior to that date and that. he had gone to the
police station for the first time on that day. During the
cross- examination he admitted that "The contents of memos
EX.PC and EX.PF were not read out to me but I was told by
the police that the weight of things recovered and the
recovery was being written in those papers."
ASI Maha Singh, PW5, who had arrived at the spot at the
earliest and had sent information to his senior officers
including SHO Harmit Singh and had kept a guard at the spot.
During the cross-examination admitted that "Kuldip Kaul and
Harnaik Singh witnesses had come there before 7 a.m."
ST Dalip Singh PW6, who had also accompanied the SHO to the
house of the appellant at about 6.30 a.m. stated "when we
reached Kuldip Kaul and Hamaik Singh witnesses were
present.ASI Maha Singh was already
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there." The witness also deposed about the interrogation of
the appellant and the recording of the disclosure statement
at the police station in his presence and the subsequent
recovery of the ornaments and the preparation of the
recovery memo PF in the presence of Kuldip Kaul and Harnaik
Singh PWs. Contrary to what Harnaik Singh PW said, this
witness deposed "the accused himself took out three bangles
and one golden chain front the main-hole and handed them
over to the SHO." The witness during the cross-examination
stated "The ornaments were weighed by some goldsmith who was
called there by the SHO. I do not know whether that
goldsmith also signed the possession memo or not.’
The above is the entire prosecution evidence relating to the
making of the alleged disclsoure statement by the appellant
and the consequent recovery under Section 27 of the Evidence
Act at his instance.
According to the appellant, however, he had made no
disclosure statement nor led the police party to the
recovery of the ornaments as alleged. According to the
defence version, the missing ornaments had in fact been
recovered by the police party around 11 a.m. during search
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from the service lane, from underneath a slab, near the
boundary wall and at that time the appellant and Jagminder
Dass Jain were also present. This defence version is
supported by the evidence of DW2, Tara Chand, father of the
deceased. The presence of this witness is admitted at the
spot by the Investigating team, as was natural being the
father of the deceased. His testimony assumes significance
as in the normal course of events, he would be the last
person to screen the real offender who murdered his
daughter. Tara Chand DW2 stated that the police had
interrogated him and he had told the I.O. that the appellant
and the deceased had good relations with each other and that
he had never received any complaint of any dispute or
difference between them from his daughter. That he had also
married of his other daughter with the brother of the
appellant, M.P. Jain and that both the sisters alongwith
their husbands were living together in the same house.
Deposing about the sequence of events at the house of the
appellant, the witness stated "Then at about 10.30 a.m. the
police took into possession four golden bangles from Sharda
but I cannot say as to from where she had produced them,
whether she was wearing them or she had brought them from
the house. I had seen her just producing them. She had
handed over those bangles to the same Sardarji police
officer who had talked to me and at that time we were in the
drawing room. The police
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had been told that the bangles which Usha was wearing and
which were missing were of the same type which were with
Sharda and there upon they conducted search for the articles
in and around the house, with the bangles in hand They went
out towards the back side. Persons who were inside the
house and also S.P. Jain accused (had joined the search
party). I came to know that three missing bangles and one
chain had been found out from underneath a slab at the back
of the house. I came to know at about 11.30 a.m. that these
things had been recovered and after about 1/2 hour of that
the police took in jeep M.P. Jain, S.P. Jain and Sharda Jain
to the police station. Police told me that they were taking
all the three for interrogation." During the cross-
examination he asserted, ’After the police had taken
Sharda’s four bangles in hand and they went around looking
for the stolen bangles I was in the varandah by the side of
the dead body and kept on observing the scene and I saw that
after sometime the same sub-inspector who had the four
bangles in hand was coming from outside from the back side
and had three bangles and one chain in the other hand. Some
5/7 persons from the public who were already inside the
house had gone outside with the police and they also came
back with the police after recovery of the ornaments. I
learnt from them that those ornaments had been found front
underneath a slab and sometime after myself went out and saw
that spot. The three bangles and chain were loose and were
not found in any cloth." He categorically denied the
suggestion that the appellant had led the police party to
the bath room on that day and had got recovered form the
drain hole of the bath room, the three bangles and the
golden chain.
Shri Jagminder Dass Jain appeared as DW12. He leves in the
same locality as the appellant and had gone to the house of
the appellant soon after 6 a.m. on learning that some
murder had taken place. Deposing about the recovery of
ornaments, he stated that the SHO after taking into
possession the bangles from Sharda went outside towards the
back lane and the witness accompanied the SHO and the crime
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team along with some others. He stated that during the
course of the search of the back lane and from underneath a
slab, one gold chain and three golden bangles were
recovered. The recovered bangles were compared with the
other which had been earlier produced by Sharda and a memo
of the recovery was prepared by the police and was signed by
the witness as well as the appellant.
The learned Sessions Judge carefully considered the evidence
led by the prosecution with regard to the disclosure
statement and the recovery
244
of ornaments. She found the evidence of Harnaik Singh PW2,
who according to DW11 Sunder Lal constable of police station
Defence Colonly, had been earlier also cited as a witness
for the prosecution in a case investigated by Harmit Singh
the then Sub-inspector of police and the present
Investigating Officer was not reliable and that the
Investigating Officer had not told the truth when he had
deposed that he did not know Harnaik Singh earlier. That
Harnaik Singh had on his own showing signed the disclosure
statement after it had already been written and that the
appellant bad not made any disclosure statement in the
presence of Harnaik Singh PW2, who had been introduced being
a convenient witness.
The learned Sessions Judge also found the evidence of PWl
Kuldip Kaul as not reliable or trustworthy and disbelieved
his testimony by giving cogent reasons after properly
appreciating the evidence led by the prosecution. She found
the defence version with regard to the recovery as more
probable and opined that the investigating officer had
created false clues and fabricated false evidence. The
learned Sessions Judge observed
"I, therefore, cannot bring myself at all to
accept the prosecution case about any
disclosure having been made by the accused or
having led to recovery of missing ornaments in
pursuance to this disclosure, and I am con-
strained to say that the I.O. has made
unabashed attempt to fabricate false evidence
to bring on record incriminating evidence
against the accused whom he had tied down for
the offence u/s 302 IPC and went to the extent
of introducing false witnesses, preparing
fabricated recoveries, replacing them by
original recoveries."
The High Court on the other hand did not deal with the
various discrepancies and contradictions appearing in the
prosecution evidence relating to the making of the
disclosure statement and the recovery of the ornaments.The
High Court placed reliance on the testimony of Kuldip Kaul
PWl and Harnaik Singh PW2 to hold that the disclosure
statement and the recovery had been made in the manner
suggested by the prosecution. In our opinion, the High
Court did not properly appreciate the prosection evidence
while reversing the well considered judgment of the learned
Sessions Judge.
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On our independent appraisal of the evidence we find that
the prosecution evidence relating to the disclosure
statement and the recovery of ornaments is not only
discrepent and contradictory but also suffers from glaring
infirmities and improbabilities rendering it unsafe to rely
upon the same.
There is contradiction between the evidence of Kuldip Kaul
PW1‘ and the I.O. as to the place where Kuldip Kaul signed
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the recovery memo. According to the 1.0. it was signed at
the spot while according to Kuldip Kaul PW1, he had returned
to the police station and there signed the recovery memo.
Again, while Kuldip Kaul attempted to show that he had met
the I.O. just once and did not know him earlier, the I.O.
has given a direct lie to it. After carefully analysing the
evidence, we find Kuldip Kaul PWl was a convenient witness
and his evidence does not appear to be trustworthy. Same is
our opinion about Harnaik Singh PW2. Whereas both Harnaik
Singh PW2 and the I.O. want the Court to believe that they
did not know each other earlier and that I.O. had seen
Harnaik Singh for the first time on that day only at the
police station, there is abundant material on the record to
show only that Harnaik Singh had earlier been cited as
witness by the same I.O. while posted as Sub-Inspector at
another police station, Harnaik Singh PW2 was also present
outside the house of the appellant alongwith Kuldip Kaul PWl
as early as on 6.30 AM on that day. Harnaik Singh PW2 also
exposed his unreliability when he admitted during the cross-
examination that the disclosure statement had not been made
by the appellant in his presence at the police station but
that he had signed a statement which had already been
prepared, thus, giving a lie not only to Kuldip Kaul PWI but
also to the I.O. who have deposed to the contrary.
As regards the recovery of ornaments also, there is a very
serious infirmity which emerges from the testimony of
Harnaik Singh PW2. Contrary to what the I.O. and the other
witnesses stated, Harnaik Singh PW2 deposed that the
ornaments were taken out by, the Sardarji I. O. from the
drain hole and not by the appellant. This probabilises the
defence version that the ornaments had been recovered during
the search and were with the I.O. when the ritual of the
recovery under Section 27 of the Evidence Act was performed.
The contradictions in the evidence of the I.O. and S.I.
Dalip Singh PW6 as to who had weighed the ornaments after
their alleged recovery also casts doubt on the correctness
of the prosecution story and the bonafides of the
investigation.
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The learned Judges of the High Court noticed the evidence of
Harnaik Singh as regards the manner of his signing the
disclosure statement and the alleged recovery of ornaments
and observed :
"Harnaik Singh PW2 even though cited as a
witness of the disclosure statement, does not
subscribe to it and obviously, as stated by
Harmit Singh, he was only brought to the
police station after the first interrogation
was conducted. In any event we think that a
person like Harnaik Singh PW2 who is not
prepared to subscribe to a part of the
prosecution case to which he was not a witness
could not but be a truthful witness and there
is absolutely no reason not to believe his
version that these ornaments were recovered at
the pointing out of the accused and were drawn
from the drain hole by the accused himself."
We are unable to appreciate this approach of the High Court.
The Court seems to have made a virtue out of a vice. While
deposing about the recovery of the ornaments from the drain
hole of the bath room Harnaik Singh PW2 belied the entire
prosecution case when he stated that after the appellant had
led the police party to the bath room "the Sardarji took out
three bangles and one golden chain from the gutter of the
bath room". The High Court did not advert to this aspect of
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the evidence at all. Kuldip Kaul PWl who was also
disbelieved by the learned Sessions Judge and in our opinion
rightly, had also exposed the extent of falsehood indulged
into by the investigating officer with regard to the time
and place where the witness attested the memo of recovery of
the ornaments but the High Court did not deal with the said
circumstance also in its proper perspective and on the other
hand unjustifiably criticised the Sessions Judge for her
adverse comments on the veracity of the prosecution case.
Obviously, the investigating officer had associated Kuldip
Kaul PWI not only because he was known to the SHO but also
because he was a convenient witness who was prepared to sign
the recovery memo at the police station at 3.30 PM, after
the police party had returned from the house of the
’appellant. The glaring discrepancies and contradictions
noticed above have rendered the evidence of Kuldip Kaul PW1,
Harnaik Singh PW2 and the Investigation Officer Harmit Singh
PW19 untrustworthy and unreliable. On the other hand, we
find that the defence version regarding the recovery of
ornaments is more probable and is supported by independent
witnesses including Tara Chand
247
DW2 father of the deceased whom the I.O. did not produce as
a prosecution witness. Despite searching cross-examination
nothing was elicited to created any doubt on the veracity of
Tara Chand DW2, the father of the deceased, who, as already
stated, would be the last person to screen the real murderer
of his daughter. The evidence of Tara Chand DW2 has
impressed us and we find that the version given by him, in
the facts and circumstances of the case, was more probable.
In view of the serious discrepancies contradictions and the
attempt of the Investigating Officer Harmit Singh to create
false clues and fabricate evidence, we are of the opinion
that the learned Sessions Judge was perfectly justified in
rejecting the prosecution evidence relating to the
disclosure statement Ex. PC and the consequent recovery of
the ornaments. The prosecution has failed to establish that
the appellant did make the disclosure statement as alleged
by the prosecution or led to the recovery of the ornaments
belonging to the deceased in the manner suggested by the
prosecution. This piece of circumstantial evidence,
therefore, has not at all been established, much less
conclusively.
In a case based on circumstantial evidence, the settled law
is that the circumstances from which the conclusion of guilt
is drawn should be fully proved and those circumstances must
be conclusive in nature. Moreover, the established facts
should be consistent only with the hypothesis of the guilt
of the accused alone and totally inconsistent with his
innocence.
Though with the ruling out of the recovery of the ornaments
as circumstances relating to the been established
conclusively, the chain of the circumstantial evidence snaps
badly, we find that there are some other circumstances also
in the prosecution case which militate against its
correctness. Admittedly, the nail clippings of the nails of
the deceased had been taken by the police. There was also
recovery of the hair from near the cot where the dead body
was lying and the romoval of the hair from the scalp of the
appellant by the I.O. for the purpose of their comparison.
The report of the chemical examiner has not connected the
hair recovered from the cot with those of the appellant.
There is no material on the record either to show that the
nail clipping had any blood, which could have tallied with
the blood group of the appellant. Thus, both the/ nail
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clippings and the hair have failed to connect the appellant
with the crime.
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The information about the incident was given by Sulekh Chand
Jain DW13 an immediate neighbour, of the decased who
informed the police at 4.55 AM on the request of the
appellant about the occurrence. Sulekh Chand Jain was not
examined by the prosecution and was instead examined by the
defence and has appeared as DW13. He deposed that he had
conveyed the information, as given to him by the appellant
and other inmates of that house, regarding the murder of the
deceased to Moti Ram PW11 at police station Hauz Khas on
telephone. The record of the information conveyed by him at
the police station was, however, cryptic and no explanation
has been furnished as to why the recorded report was so
cryptic. In answer to a question in the cross-examination,
the witness naturally expressed his ignorance as to why the
report had been recorded in the manner in which it was
recorded. That was natural. This explanation was required
to be furnished by the police witnesses rather than DW13.
Though he was subjected to incisive cross-examination,
nothing emerged from the evidence of DW13 which may show
that he had not conveyed the information of murder having
been committed to the police. Under these circumstances,
the argument of Mr. Garg that the report was designedly left
vague to enable the investigating agency to fill in the
blanks latter cannot be dismissed as wholly unplausible
particularly when we have noticed the conduct of the
Investigating Officer during the investigation. The
possiblility that the entire case was built up after the
dogs of the dog squad pointed towards the appellant cannot
be ruled out. Since, the appellant had slept in the
verandah near the cot where the dead body of his wife was
found; had locked the collapsable door with the recovered
lock before going to sleep and had himself been close to the
dead body before the police came, the picking up of the
smell by the dogs and pointing towards the accused could not
be said to be a circumstance which could exclude the
possibility of guilt of any person other than that of the
appellant or be compatible only with hypothesis of guilt of
the appellant. The pointing out by the dogs could as well
lead to a misguided suspicion that the appellant had
committed the crime. The explanation of the appellant
regarding the injuries on his person as having been caused
by the police is also quite plausible because according to
the father of the deceased, the sister of the deceased, the
tenants of the house and other neighbours who had reached
the spot, the appellant was wearing only a vest and the
pyjama and no shirt and there were no marks of injuries on
his body before he was
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taken to the police. station. The prosecution case
regarding the presence of injuries on the person of the
deceased also, therefore, is quite doubtful.
On an independent appraisal of the evidence on the record,
we have therefore unhesitatingly come to the conclusion that
the learned Sessions Judge was perfectly justified in
acquitting the appellant of all the charges and the
reasoning given and the findings recorded by her are sound,
cogent and reasonable. The High Court was not justified to
set aside those findings on surmises and conjectures. The
finding of guilt recorded against the appellant by the High
Court is not sustainable in law and we, agree with the
learned Sessions Judge that the prosecution has not
established the case against the appellant beyond a
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reasonable doubt. We, accordingly, set aside the judgment
of the High Court convicting the appellant for the offence
under Section 302/203 IPC. The appeal is allowed and the
appellant acquitted of both the charges. The appellant is
on bail, his bail bonds shall stand discharged.
N.V.K.
Appeal allowed.
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