Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1410 of 2010

Dhan Raj @ Dhand … Appellant

versus

State of Haryana ...Respondent

WITH

CRIMINAL APPEAL NO. 703 of 2011

Badal … Appellant

versus

State of Haryana ...Respondent

J U D G M E N T

Pinaki Chandra Ghose, J.

1.These appeals arise from the impugned judgment of the High

Court of Punjab and Haryana wherein vide a common

judgment dated February 26, 2010, the High Court disposed of

Page 2 Criminal Appeal No. 496-DB of 1999, Criminal Appeal No. 510-

DB of 1999, Criminal Appeal No. 719-DB of 2009 and Criminal

Revision No. 334 of 2000. The present appeals however arise

out of Criminal Appeal No. 496-DB of 1999 filed by accused

Dhan Raj challenging the judgment of conviction and order of

sentence dated September 25 and 27, 1999 passed by the

Additional Sessions Judge, Jhajjar in Sessions Case No.21 of

21.5.1997/13.08.1998 and Criminal Appeal No. 719-DB of 2009

filed by the State of Haryana against the judgment of acquittal

dated February 18, 2009 passed by the Sessions Judge, Jhajjar

in Session Case No.73 of 21.5.1997/17.3.2008, acquitting the

accused Badal of the charges framed against him.

2.The High Court in the present matters convicted the accused

appellants on the basis of circumstantial evidence by the

impugned judgment. It has been well established by leading

judicial precedents that where the prosecution’s case is based

on circumstantial evidence, only the circumstantial evidence of

the highest order can satisfy the test of proof in a criminal

prosecution. In order to base conviction on circumstantial

evidence the circumstantial evidence put forth by the

2

Page 3 prosecution should establish a complete unbroken chain of

events so that only one inference is drawn out from the same.

If more than one inference can be drawn then the accused

should be entitled to the benefit of doubt.

3.In the present appeals we therefore would evaluate the case of

the prosecution in terms of the evidence brought on record and

the statements and discovery made in the course of

investigation.

4.The case of the prosecution revealed in the first appeal (being

Crl.A. No.1410 of 2010) is that the deceased Vijaypal was

serving a doctor who was posted in the Dispensary of Village

Kheri Jat and residing at Jhajjar. On January 24, 1997 he left for

his dispensary from his home at 9.45 a.m. by a Maruti car

which did not have a registration number. Sukhbir Singh (PW

13), a dispenser posted at Kheri Jat informed Harpal Singh (PW

6), brother of deceased that the dead body of Vijaypal was

found in a field of village Bizidpur where Harpal Singh went

with Sukhbir Singh and found the body in a side posture

bearing injuries from a sharp-edged weapon. There was blood

3

Page 4 on the ground and the Maruti car was found to be missing.

Harpal Singh filed an FIR and investigation was initiated. Post

mortem was also performed. The wife of the deceased

disclosed that the deceased had with him a briefcase and a

wrist-watch when he left home. Co-accused Sanjay, while in

custody of Delhi Police for a different case, made a statement

about the occurrence of this case. Subsequently, his production

warrants were obtained and he was arrested for the present

murder on February 4, 1997. Sanjay in his disclosure statement

states that Dhan Raj and Badal, the appellants herein, were

associated with him in the commission of the crime and that

Dhan Raj had taken away the briefcase and Badal took the

wrist-watch of the deceased. Furthermore, in his statement,

Sanjay disclosed that he had concealed a Kirpan along with his

blood stained clothes near Sadli Road, and he got the same

articles recovered as well. Dhan Raj and Badal were arrested

on February 4, 1997 and recovery of briefcase and wrist-watch

was effected. Subsequently, on completion of investigation, a

challan was presented in the court.

4

Page 5 5.The case of the prosecution in the second appeal is also the

same. However, the accused were tried separately as the

accused Badal was arrested later.

6.After perusing the material brought on record, we would

narrate the facts as they appear to us. However, as the

preliminary facts are the same, for convenience’s sake, they

are narrated from the trial in Criminal Appeal No. 1410 of 2010

and the trial in Criminal Appeal No. 703 of 2011 will be

discussed separately.

6.1Vijaypal (the deceased herein) was posted as a doctor in the

Kheri Jat village dispensary and he was residing at Jhajjar.

As per the statement of Raj Singh (PW 15), who was the

elder brother of the deceased and stayed in the deceased’s

house, on January 24, 1997 at about 9.45 a.m., Dr. Vijaypal

left his home for the dispensary in his Maruti car, the

registration of which was awaited; that after a few minutes,

the accused Sanajay, Dhan Raj and Badal in a four-wheeler

reached the deceased’s home and inquired about him and

disclosed their names afterwards, whereafter they

5

Page 6 immediately left towards Delhi. Later in the day, Sukhbir

Singh (PW 13) a dispenser posted at Village Kheri Jat,

informed Harpal Singh (PW 6), the younger brother of the

deceased, and the complainant that the dead body of

Vijaypal was found lying in the wheat crop bearing injuries

caused by a sharp edged weapon with blood on the ground

nearby and the car of the deceased was also found to be

missing. On the basis of the statements of Harpal Singh, FIR

No. 26 of 1997 was registered and investigation was initiated

with the conduction of the post-mortem and the recording of

statement of the witnesses by the Investigating Officer.

6.2 The statement of the wife of the deceased being PW 7 which

was corroborated with the statement of Sub-Inspector Brij

Pal (PW-10) revealed that the deceased also had with him a

wrist watch and a briefcase when he had left his home,

which were also missing. On the next day, accused Sanjay

was arrested by the Delhi Police in a case under Section 411

of the Indian Penal Code arising out of FIR No. 32 of 1997

and from him, the car of the deceased (determined after the

engine and chassis-number of the car were tallied) was

6

Page 7 recovered. While in custody of Delhi Police, he made a

statement about the present case on January 25, 1997. In

the said statement, it must be noted that he named one

Rohtas as his accomplice and stated that Rohtas only took

the wrist-watch and the briefcase of the deceased.

6.3 Subsequently, Sanjay’s production warrants were obtained

and he was arrested by the Haryana Police on February 4,

1997 in the present case arising out of FIR No.26 of 1997

and therein he made a disclosure statement averring that

appellants Dhan Raj and Badal were associated with him in

the commission of the crime and that Badal had taken away

the wrist-watch of the deceased and Dhan Raj had taken

away the briefcase. It must be noted that there is a

discrepancy between the two statements of Sanjay.

6.4Furthermore, Sanjay’s disclosure led to the recovery of a

Kirpan concealed by him and blood-stained clothes, as

specified in the statement. The blood on the Kirpan was

found to be human blood by the Forensic Science

Laboratory, Madhuban. It appears that the accused Dhan Raj

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Page 8 was also arrested on February 4, 1997 and the recovery of

the briefcase was effected. Accused Badal remained absent

during the trial inspite of issuance of warrant of arrest and

he was declared a proclaimed offender but he was arrested

later and subsequently the recovery of the wrist-watch was

effected. The briefcase and the wrist-watch were duly

identified by Shanti Devi (PW 7) as possessions of the

deceased.

6.5As per the report of Dr. Rajinder Rai (PW-5), who had

conducted the post-mortem of the deceased’s body, there

were seven injuries found on the body, and, in his opinion,

death was due to shock and haemorrhage as a result of

multiple injuries which were ante mortem in nature and

sufficient to cause death might have been committed by a

Kirpan.

6.6The investigation was completed and the challan was duly

presented in court. The case was duly committed to the

Court of Sessions vide order dated May 8, 1997 and charge

under Section 302 of the Indian Penal Code was framed

8

Page 9 against Sanjay and under Section 302 read with Section 34

and Section 392 read with Sections 395 and 397 of the

Indian Penal Code, against the two accused wherein they

pleaded not guilty and sought for a trial. At this point, it is

pertinent to mention that the trial of accused Badal was

conducted separately as he was arrested later. In the course

of the trial, twentythree witnesses were examined by the

prosecution to prove its case. The statement of the appellant

Dhan Raj was recorded under Section 313 of the Code of

Criminal Procedure, wherein he has pleaded that he has

been falsely implicated and that the Sub–Inspector has

fabricated a false recovery in collusion with one Rohtas @

Maharaja who was also arrested in the matter. The case of

the prosecution was based on circumstantial evidence and

the trial court after hearing the parties vide judgement dated

September 25, 1999 convicted and sentenced the accused

Sanjay and Dhan Raj ordering imprisonment for life and a

fine of Rs. 2,000/- under Section 302 read with Section 341

of the Indian Penal Code along with rigorous imprisonment

for eight years and a fine of Rs. 1,000/- each under Section

9

Page 10 392 read with Section 397 of the Indian Penal Code and the

sentences to run concurrently. Vide judgment dated

February 18, 2009, the trial court acquitted the accused

Badal.

6.7As the accused Badal was tried separately and was acquitted

in the trial, we find it pertinent to discuss the same briefly. A

case under Section 302 read with Section 34 and Section

392 read with Sections 395 and 397 was made against

accused Badal and the other co-accused and they were

charge-sheeted by an order dated June 4, 1997. Badal was

arrested (as stated in the order of the Trial Court dated

February 18, 2009) on February 20, 2007 and then his trial

began with the earlier witnesses in the trial of Dhan Raj and

Badal being recalled and recorded against the accused

Badal. He was examined under Section 313 of Cr.P.C.

wherein he pleaded not guilty and claimed that he was

falsely implicated and that he never made any disclosure

statement and no recovery was effected from him.

1

Page 11 6.8 In the said trial, the findings of the court were that the

deceased was murdered in Bizidpur by several knife blows

on his person while on his way to Kheri Jat. That evidence of

PW1 to PW7 recorded in the earlier trial did not amount to

material evidence against the accused. The statement of

Shanti Devi being PW7 regarding the wrist watch of the

deceased that the wrist watch recovered from Badal is the

same that belonged to the deceased as the initials ‘VPS’

were written on the same, does not inspire confidence; there

is no corroboration of that fact and that it does not seem

logical that a person will write something like this on his

wrist watch. Further, it was noted that the prosecution failed

to connect the accused with the recovery of the wrist watch

in view of a decision of the High Court that there was no

sufficient motive. The Trial Court also pointed out that the

case of the prosecution that the deceased was robbed and

killed on the road and his dead body was left on the road

itself, is not supported by any evidence as the dead body

was found in the fields and that the prosecution failed to

answer how the dead body reached there. It was also noted

1

Page 12 that in the Kutcha area where the body was found no foot

prints of the accused were found by the investigating

agency.

6.9On the basis of the aforementioned findings, the Trial Court

acquitted the accused appellant and concluded that charges

against the accused were not proved beyond reasonable

doubt as the case of the prosecution was highly doubtful and

that PW9 to PW18, who were the material witnesses, did not

give any material and conclusive evidence against the

accused appellant.

6.10Aggrieved by the judgments of the trial court, accused

appellant Dhan Raj filed Criminal Appeal No. 496-DB of 1999

and the State of Haryana filed Criminal Appeal No. 719-DB of

2009 before the High Court of Punjab and Haryana. The High

Court in its impugned judgment held that the case of the

prosecution is based on circumstantial evidence and that in

the backdrop of the existing facts the chain of circumstantial

evidence is complete and the involvement of the accused in

robbery and commission of murder and robbery is

1

Page 13 established. Thus, the High Court upheld the conviction of

the appellant accused Dhan Raj and convicted the appellant

Badal on same grounds as those of Dhan Raj and Sanjay.

6.11Aggrieved, the appellants Dhan Raj and Badal filed the

present appeals and the matter came before us.

7.The High Court convicted the accused appellants and Sanjay

the other co-accused on the basis of circumstantial evidence.

However, we will confine ourselves only to the circumstantial

evidence produced against the accused appellants. The High

Court relied firstly, on the statement of the wife of the

deceased Shanti Devi (PW7) wherein she stated that the

deceased wore a HMT wrist watch gifted to him at the time of

his marriage by her parents and was carrying a briefcase with

the sticker of the initials ‘VPS’ when he left his house on

January 24, 1997 and that the same were missing when the

body of the deceased was found in the fields. Secondly,

reliance was placed on the statement of the Raj Singh (PW-15),

the brother of the deceased, wherein he has stated that when

he was visiting his brother the deceased on January 24, 1997

1

Page 14 after the deceased had left the three accused came to the

deceased’s house and enquired about him after disclosing their

names. Thirdly, the High Court relied on disclosure statement

of the co-accused Sanjay on the basis of which the blood

stained clothes and the Kirpan were recovered and he had

stated that Dhan Raj had taken away the briefcase and the

wrist watch was taken away by Badal. Fourthly, the High

Court greatly relied on the two disclosure statements of the

accused-appellants on the basis of which the recovery of the

briefcase and wrist watch was made.

8.It was also noted by the High Court that the blood on the

Kirpan was human blood and that injuries inflicted on the

deceased might be caused by a Kirpan as per the opinion of the

Doctor. While commenting on the completeness of the

circumstantial evidence it was further noted that the

truthfulness of the testimony of Sanjay was proved on the basis

of the recovery of the car. Furthermore, it was noted that the

fact that the deceased was carrying a briefcase and a wrist

watch has been proved with the statement of Shanti Devi.

Thus, on the basis of the above, the disclosure statements of

1

Page 15 the accused appellant and the disclosure statement of co-

accused Sanjay were treated as clinching evidence proving

their involvement by the High Court.

9. In order to discuss the correctness of the order of conviction,

we now proceed by considering the four grounds on which the

High Court relied. We would first discuss the reliance placed on

the evidence given by the co-accused Sanjay. The co-accused

Sanjay in the course of investigation by his confessional

statement being an extra-judicial confession dated February 4,

1997 named the accused appellants as his accomplices in the

murder and robbery and stated that Dhan Raj and Badal took

the briefcase and wrist watch of the deceased respectively.

However, in an earlier confessional statement dated January

25, 1997 made in the investigation in FIR No. 32 of 1997,

Sanjay has named Rohtas as his accomplice and stated that he

only took the wrist watch and the brief case and from the same

confession the car of the deceased was recovered. From the

later confession, the Kirpan and blood stained clothes were

recovered.

1

Page 16 10. It is well established that extra-judicial confession has been

treated by this Court as weak evidence in the absence of a

chain of cogent circumstances, for recording a conviction (See:

Gopal Sah vs. State of Bihar

1

, and Pancho vs. State of

Haryana

2

). It was held in Sahadevan and Anr. vs. State of Tamil

Nadu

3

that if an extra judicial confession suffers from material

discrepancies or inherent improbabilities then this Court cannot

base a conviction on the same. In the present case, there is an

apparent discrepancy in the confession statement of Sanjay

and the same is a glaring one as he has named different

accomplices in the same crime in his two confessional

statements. Furthermore, Sanjay’s confessional statements

only connect him to the car and the Kirpan, his statement that

the accused appellants took the wrist watch and the briefcase

in the absence of other evidence except the recovery of the

same does not establish that anything beyond the fact that

they may possess stolen goods. In no manner does the later

statement of the co-accused supports that the accused

appellants were involved in the commission of murder. In the

1

(2008) 17 SCC 128

2

(2011) 10 SCC 165

3

(2012) 6 SCC 403

1

Page 17 case of Pancho vs. State of Haryana (supra) this Court did not

convict the accused Pancho on the basis of the confession

statement of the co-accused in the absence of other cogent

evidence, inspite of the belated recovery of the alleged weapon

of murder.

11.In view of the above, we are of the opinion that reliance on

the extra-judicial confession of the co-accused is misplaced.

12.Owing to the later confessional statement of co-accused

Sanjay, the accused appellants were arrested and subsequently

on the basis of the disclosure statements of the accused

appellants and corroboration by Shanti Devi (PW 7), wrist-

watch and the briefcase were recovered. Owing to the

interdependence of the above evidence, we will discuss the

same together. The prosecution relied on the disclosure

statements of the accused appellants, the subsequent recovery

of the briefcase and wrist watch on the basis of the same and

the statement of Shanti Devi corroborating that the recovered

wrist watch and briefcase belonged to the deceased. After

considering the evidence on record, we find that no proper

1

Page 18 recovery has been made in the present case. The objects which

were recovered were two common articles, not holding much

value and it does not seem rational that any accused would

keep such incriminating items connecting themselves to a

crime with them in their house. Regarding the recovery of the

wrist watch from Badal and its identification by Shanti Devi

PW7, we concur with the opinion of the Trial Court. The

relevant extract of the judgment of the trial court is reproduced

hereunder:

“She further stated that she saw the wristwatch Ex.P2

in the Police Station on 13.4.1997 and she identified the

watch because alphabets VPS were written on the

watch. This statement of PW7 does not inspire

confidence because it does not appeal to the common

sense that the wrist watch which was allegedly

purchased in the year 1971 at the time of marriage of

the deceased, could not carry the writing of alphabets

VPS thereon uptil 1997. Otherwise also, it does not

appeal to the common sense that a person would write

any word on the wrist watch to connect him in this

fashion. If these alphabets would have actually been

written on the wrist watch, the complainant would have

also mentioned this fact in the FIR because complainant

was none else but the real brother of the deceased”

1

Page 19 Furthermore, it appears to us that the recovery has not been

corroborated by any proper independent evidence. Moreover,

recovery of an object is not a discovery of fact, as per the decision

of this Court in Mano vs. State of Tamil Nadu

4

. Recovery must be

of a fact which was relevant to connect it with the commission of

crime. Therefore, even if the recovery of goods is reliable then it

does not indicate that the accused appellants committed the

murder and the only admissible fact which can be inferred is that

they are in possession of stolen goods.

13.We would refer to the decision of this Court in Madhu vs.

State of Kerala

5

the facts of which are relevant in the present

case. In the said case, the body of the deceased was found

near her home with her ornaments on her person missing. On

the basis of the information furnished by the accused recovery

of the said ornaments was made. This fact coupled with the

sighting of the accused near the place of crime was the basis

for conviction. However, this Court reversed the conviction on

the ground that said recovery and sighting of the accused near

4

(2007) 13 SCC 795

5

(2012) 2 SCC 399

1

Page 20 the deceased do not lead to the sole conclusion that murder

was committed by the accused only. In State of Rajasthan vs.

Talevar and Anr.

6

also it was held that where the only

evidence against the accused is recovery of stolen property,

then although circumstances may indicate that theft and

murder might have been committed at the same time, it is not

safe to draw an inference that the person in possession of

stolen property had committed murder. Also the recovery of

looted articles at the instance of the accused could not be

relied upon in absence of any details as to when and where

such recovery was made and in absence of any confession of

commission of offence by the accused. Besides, the seizure of

the goods was not corroborated by any independent witness in

the present case.

14.The abovementioned circumstantial evidence was supported

with the statement of Raj Singh (PW-15), that when he was

visiting his brother the deceased on January 24, 1997 after the

deceased had left, the three accused came to the deceased’s

house and enquired about him after disclosing their names.

6

(2011) 11 SCC 666

2

Page 21 Before discussing the admissibility of the said statement, we

would refer to the landmark decision of this Court in Sharad

Birdichand Sarda vs. State of Maharashtra

7

regarding

circumstantial evidence, where this Court held regarding the

question of the accused last seen with the deceased held that

where it is natural for the deceased to be with the accused at

the material time, other possibilities must be excluded before

an adverse inference can be drawn. It is evident from the

above that this Court refrains from drawing adverse inferences

in a factual matrix which points out toward the guilt of the

accused. Thus, we will consider the statement of Raj Singh also

in the same light. As per the statement of Raj Singh, the three

accused had come asking for the deceased but in the absence

of other corroborating evidence and independent evidence, it is

not established that the accused appellants had abetted the

co-accused Sanjay in the commission of the crime. Also it can

be the defence’s case that the said statement has been added

as an afterthought to strengthen the case of the prosecution.

We have found no material on record which corroborated the

statement of Raj Singh who is an interested witness.

7

(1984) 4 SCC 116

2

Page 22 Furthermore, there is no other evidence which indicates or

established the presence of the accused appellants near the

place of commission of crime. Also, as noted by the Trial Court

in the trial of Badal, no footprints were found in the surrounding

Kutcha area where the body of the deceased was found.

15.We have noticed in the case of Madhu vs. State of Kerala

(supra) facts of which were discussed earlier, that this Court

inspite of the factum that the accused were sighted close to

the place of occurrence at around the time of occurrence

reversed the conviction as guilt was not established. In the

present factual matrix, it is only an interested witness stating

that the accused had come asking for the deceased. This

factum alone does not establish guilt as no other evidence is

found that they were near the Bizdipur area where the crime

was committed or had visited the house of the deceased. For

establishing the guilt on the basis of circumstantial evidence, it

is also to be taken into account that the chain of circumstantial

evidence must be completed. It appears from the facts that the

said chain of circumstantial evidence cannot be concluded in

the manner sought to be done by the prosecution. The

2

Page 23 circumstances must be conclusive in nature. In the instant

case, after analysing the facts, it appears to us that there is a

gap between the circumstances tried to be relied upon to hold

the appellants as guilty.

16.Thus, we find many loopholes in the case of the prosecution

and grounds on which the High Court has convicted the

accused appellants. We would refer to the decision of this Court

in Munish Mubar v. State of Haryana

8

wherein Dr. Justice

Chauhan has very aptly and succinctly stated the following:

“The circumstantial evidence is a close companion of

factual matrix, creating a fine network through which

there can be no escape for the accused, primarily

because the said facts, when taken as a whole, do not

permit us to arrive at any other inference but one

indicating the guilt of the accused.”

A court has to examine the entire evidence in its entirety

especially in case of circumstantial evidence and ensure that the

8

(2012) 10 SCC 464

2

Page 24 only inference drawn from the evidence is the guilt of the

accused. If more than one inference can be drawn then the

accused must have the benefit of doubt as it is not the court’s job

to assume and only when guilt beyond reasonable doubt is

proved then it is fair to record conviction.

17.In case of circumstantial evidence, each circumstance must

be proved beyond reasonable doubt by independent evidence,

and the circumstances so proved must form a complete chain

without giving any chance of surmise or conjecture and must

also be consistent with the guilt of the accused. None of the

circumstances relied upon by the prosecution and accepted by

the High Court can be said to be the probability of the

appellants’ guilt or involvement in the commission of the crime.

18.Therefore, for the reasons recorded hereinabove, the

judgment and order of the High Court is set aside; the appeals

are allowed and the accused are acquitted forthwith. The

appellant in Criminal Appeal No.703/2011 is already out on bail

2

Page 25 granted by this Court; the appellant in Criminal Appeal

No.1410/2010 is directed to be set at liberty forthwith, if not

required in any other case.

………………………………… ..J.

(Chandramauli Kr.

Prasad)

………………………………… ..J.

(Pinaki Chandra Ghose)

New Delhi;

May 9, 2014.

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