Page 1 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.729 OF 2011

H.D. SIKAND (D) THROUGH L.RS. … APPELLANT(S)

:Versus:

CENTRAL BUREAU OF INVESTIGATION

AND ANR. … RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.730 OF 2011

CENTRAL BUREAU OF INVESTIGATION … APPELLANT(S)

:Versus:

LT. COL. S.J. CHAUDHARY … RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1.These appeals, by special leave, have been filed by the

appellants challenging the judgment dated 15

th

May, 2009,

passed by the High Court of Delhi at New Delhi in Criminal

Appeal No.456 of 2008, whereby the High Court has set aside

the judgment and order dated 28.04.2008 passed by the

Additional Sessions Judge, Delhi, and acquitted Respondent

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No.2 of the charge of murder as also of the charges under

Sections 3 & 4 of the Explosive Substances Act, 1908.

2.The brief facts of the case are that Rani Chaudhary got

married to Sqn. Ldr. Pritam Singh and out of the wedlock, she

had two daughters, namely, Mini and Maitri. After the death of

her husband, she started living at D-5, South Extension,

Part-I, New Delhi. Rani Chaudhary had acquaintance with Lt.

Col. S.J. Chaudhary, who was a divorcee at that time. On

31.3.1971, Rani Chaudhary got married to Lt. Col. S.J.

Chaudhary and out of this wedlock one daughter, namely,

Sonali was born on 24.08.1972. Their marriage could not

continue harmoniously, so Rani Chaudhary started living

separately at her parents’ house at Defence Colony, New Delhi,

with effect from May, 1976. Lt. Col. S.J. Chaudhary continued

to harass Rani Chaudhary. Rani Chaudhary filed a petition for

divorce under Section 13(1)(1a) of the Hindu Marriage Act, in

the Court of District Judge, Delhi, and on 6.12.1979, an

ex-parte decree of divorce was granted in her favour. Accused

S.J. Chaudhary after coming to know about the ex-parte

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decree, filed an appeal before the Delhi High Court on

5.03.1980. He also filed two petitions in the Court of

Additional District Judge, Delhi, one for setting aside the

ex-parte decree of divorce granted in favour of Rani Chaudhary

and the other for restraining Rani Chaudhary from marrying

Kishan Sikand. A restraint order was passed against Rani

Chaudhary from marrying Kishan Sikand, pending decision of

the divorce petition. On 6.1.1981, the Additional District

Judge dismissed the petition for setting aside the ex-parte

decree of divorce and also vacated the injunction order

restraining Rani Chaudhary from remarriage.

3.On 9.01.1981, accused S.J. Chaudhary got another order

from the High Court of Delhi restraining Rani Chaudhary from

remarriage till further orders. This order was vacated by Delhi

High Court on 17.03.1981 while dismissing the appeal filed by

accused S.J. Chaudhary against ex-parte decree of divorce

granted in favour of Rani Chaudhary. Since the accused S.J.

Chaudhary had already gone in appeal before the Delhi High

Court, against the order passed by the Additional District

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Judge on 6.01.1981, the said appeal was admitted and Rani

Chaudhary was restrained from remarriage by the Delhi High

Court. While disposing of the appeal on 14.09.1981, the

Delhi High Court set aside the decree of divorce granted in

favour of Rani Chaudhary and directed the parties to appear

before learned District Judge for fresh hearing of divorce

petition. Rani Chaudhary filed an appeal before this Court

against the order dated 14.09.1981 passed by the Delhi High

Court. This Court set aside the order dated 14.09.1981 passed

by the Delhi High Court and restored the ex-parte decree of

divorce granted in favour of Rani Chaudhary. After the divorce

litigations between Rani Chaudhary and accused S.J.

Chaudhary came to an end, Kishan Sikand (deceased)

proposed Rani Chaudhary for marriage to which she agreed

and they decided to marry after the divorce is granted to Rani

Chaudhary and continued to live together in the house of

deceased Kishan Sikand at 98, Sundar Nagar, New Delhi.

Accused S.J. Chaudhary started threatening Rani Chaudhary

and also lodged complaints on 29.9.1981 and 30.9.1981 at

P.S. Lodhi Road and P.S. Hazrat Nijamuddin against Kishan

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Sikand for illegally keeping his wife with him. But Rani

Chaudhary gave in writing that she had taken divorce from

accused S.J. Chaudhary and that she was staying there as a

paying guest out of her own free will and Kishan Sikand had

not illegally detained her. The case of the prosecution is that

the accused S.J. Chaudhary having lost his endeavour to win

back his wife Rani Chaudhary, made up his mind to eliminate

Kishan Sikand and so he procured the raw ingredients to

manufacture a bobby trap bomb and using parts of a

hand-grenade, he managed to manufacture a bobby trap

bomb. This bobby trap bomb was converted into a parcel

addressed to Kishan Sikand. On 2.10.1982, the said parcel,

containing the bomb, was kept at the staircase leading to the

first floor of 98, Sundar Nagar, New Delhi, in the rear portion

whereof Kishan Sikand was residing along with Rani

Chaudhary. When the said parcel bomb was opened by

deceased Kishan Sikand, it triggered off resulting in an

explosion and his instantaneous death.

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4.Post-mortem was conducted on the dead body of Kishan

Sikand. The cause of death was opined as a result of

haemorrhage, shock and injuries to vital organs caused by

explosive device of hand grenade which were fatal.

5.First Information Report (FIR) was registered on the day

of the incident itself on 2.10.1982. The investigation of the

case was ultimately entrusted to the CBI on 19.3.1983.

Accused S.J. Chaudhary was arrested by the Central Bureau

of Investigation (“CBI”) on 31.07.1983 during the course of

investigation. Rani Chaudhary, who was at Sanawar (H.P.) on

the day of the incident, returned to Delhi on the next day. Her

statement under Section 161 Cr.P.C. was recorded on

3.10.1982, wherein she informed the police about her

turbulent marriage with the appellant and the divorce. She

also informed the police that accused S.J. Chaudhary had

been extending threats to her to compel her to return to him

and that he had even been threatening Kishan Sikand. Apart

from other persons whose statements were recorded during

investigation, the statement of one Suresh Gopal, a close

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friend of the deceased Kishan Sikand and Rani Chaudhary

was recorded on 5.10.1982. Although the accused S.J.

Chaudhary was a suspect from the very beginning but nothing

incriminating against him could be gathered by the police

before CBI had taken over. In support of their case, the CBI

examined 76 witnesses and 8 witnesses were examined on

behalf of the defence. Thereafter arguments were heard and

judgment reserved. On 28.04.2008, the Additional Sessions

Judge, Delhi, delivered the judgment convicting accused S.J.

Chaudhary (Respondent No.2 herein) under Section 302 of the

Indian Penal Code and under Sections 3 and 4 of the

Explosive Substances Act, 1908, and sentencing him to life

imprisonment along with a fine of Rs.5,000/- for offence under

Section 302 IPC and to rigorous imprisonment for 10 years

each under Sections 3 and 4 of the Explosive Substances Act,

1908.

6.Being aggrieved by the judgment dated 28.04.2008 of the

Additional Sessions Judge, Delhi, Respondent No.2 filed

criminal appeal before the Delhi High Court on the ground

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that he had inter alia been convicted only on the basis of

circumstantial evidence and therefore he was entitled to the

benefit of doubt. Shri H.D. Sikand, father of the deceased

Kishan Sikand, filed an application for intervening in the said

criminal appeal. The application for intervention was allowed

and H.D. Sikand was granted permission to intervene in the

matter but on 12.03.2009, the intervenor Shri H.D. Sikand

passed away. On 15.05.2009, the Delhi High Court, after

hearing the parties allowed the criminal appeal filed by

Respondent No.2, set aside the judgment and order passed by

the Additional Sessions Judge and acquitted Respondent No.2

(Lt. Col. S.J. Chaudhary) of the charge of having committed

murder as also the charges under Sections 3 & 4 of the

Explosive Substances Act, 1908. Hence, these appeals, by

special leave, have been filed against the acquittal of

Respondent No.2 (Lt. Col. S.J. Chaudhary).

7.We have heard the learned counsel appearing on behalf

of the parties and perused the judgment passed by the High

Court as also the judgment passed by the Trial Court. Learned

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counsel appearing on behalf of the appellants in Criminal

Appeal No.729 of 2011 submitted that after the explosion took

place in the house of Kishan Sikand, the Delhi Police took over

the investigation but except recording some statements and

formal actions, did not do any worthwhile investigation. This is

clear from the following:

(a) On 3.10.1982 Shri P.P. Koahar (PW-72) recorded the

statement of Rani Chaudhary, Vijay Ram and Flaurance

Homs and others. He also recorded statement of Suresh

Gopal on 5.10.1982. He also recorded some statements on

other days.

(b) On 4.10.1982, search was conducted of the premises i.e.

98, Sunder Nagar and the Investigating Officer took

possession of the documents on 6.10.1982. He did not even

prepare proper Memo of the said documents. All those

documents are missing; and the documents said to have

been recovered by PW-72 on 4.10.1982 are not the part of

charge-sheet. During the cross-examination, R.P. Kochar,

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Investigating Officer himself admitted that from the very

beginning he suspected the accused as he stated: “till the

investigation was me, I could not collect clinching evidence

to arrest the accused”, “from the very beginning I suspected

him to be the perpetrator of crime”.

8.Learned counsel further submitted that even after the

Court’s order and search warrant issued for search of the

house of Respondent No.2, only search was conducted by the

police and thereafter the Investigating Officer did not do

anything except collecting 75 type prints of different

typewriters or specimens, which had no relevance with the

crime. The police did it only to pretend that they were doing

some investigation. According to the Investigating Officer

himself, it came to his knowledge that a parcel was spotted on

the staircase on 25.09.1982 for the first time, but even after

such fact came to his notice, he did not make any

investigation and did not even record the statement of the

person giving such information. When there was no proper

investigation by the Crime Branch and the criminal remained

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undetected, on the request of the appellant, the case was

transferred to the CBI and only thereafter the real

investigation started and in this manner the precious time for

collection of evidence was lost.

9.Learned counsel further submitted that there were

strained relations between Rani Chaudhary and accused

Respondent No.2 and despite best efforts to maintain her

matrimonial ties with the accused Respondent, the accused

Respondent continued to ill treat her and even tortured her

both mentally and physically, forcing her to shift to Delhi. She

was beaten to the extent of causing fractures of three bones.

The accused Respondent threatened the deceased and Rani

Chaudhary with dire consequences to the extent of bodily

harming and killing Kishan Sikand on a number of occasions.

The accused Respondent had the grudge and motive to kill

Kishan Sikand. Learned counsel submitted that the marriage

between Rani and accused Respondent could not continue

harmoniously and accused Respondent used to physically

assault and mentally torture Rani and on account of incessant

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harassment and physical torture by accused Respondent, Rani

lodged a complaint with the concerned Army Authorities in

February/March 1979. On coming to know about this

complaint, the accused Respondent came to Delhi from

Bangalore where he was posted and Rani was mercilessly

beaten and she received injuries including fractures of 3 ribs

on the left side. Rani lodged a report at the Police Station,

Defence Colony and was medically examined at AIIMS. Mrs.

Devender Kaur, mother-in-law of Rani (by the first marriage)

also lodged a report at the Police Station and complained

about the conduct of accused Respondent. It is also stated

that the accused went to the house of Rani and confined her

inside the house but she escaped by jumping out of the

window, in the process she sustained sprain in her ankle.

Thereafter, Rani filed a divorce petition on the ground of

cruelty and torture. The Trial Court passed a decree of divorce

which was set aside by the High Court and upon filing special

leave petition, this Court o n 24.08.1982 restored the decree of

divorce passed by the Trial Court. In the meantime, Rani and

Kishan Sikand became good friends and Rani started living

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with Kishan Sikand at 98, Sunder Nagar, New Delhi. There

was an understanding between them that they would get

married after the divorce was finalized. The accused-

Respondent threatened Rani not to live with Kishan Sikand

and in case she did not move out of the house of Kishan

Sikand, he would kill her and Kishan Sikand. The accused-

Respondent also told H.D. Sikand, father of Kishan Sikand, to

throw out Rani from his house, otherwise he would cripple

Kishan Sikand by breaking his bones. The accused-

Respondent also visited H.D. Sikand in the office and he was

very annoyed at that time. Accused-Respondent also

telephoned Kishan Sikand and told him that if he did not turn

Rani out of his house within 24 hours, he would kill him. This

was intimated by Kishan Sikand to Rani (PW-1), Sudhir

Khanna (PW-10), H.D. Sikand (PW-19), M.M. Thapar (PW-37),

Leelu Mool Chandani (PW-39) and Gajbir Singh (PW-44). The

accused-Respondent gave Rani four options:

(a)to live together

(b)to separate peacefully

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(c)to separate in an ugly manner

(d)to create total chaos

The accused-Respondent threatened that if she did not agree

for one of the first three options then chaos would follow. This

was recorded in tape recorder. The accused-Respondent

lodged a false report in Police Station, Nizamuddin alleging

that Rani has been forcibly confined by Kishan Sikand at his

house. Om Sagar, Station House Officer went to the house of

Kishan Sikand, met Rani and inquired from her if she was

forcibly detained to which Rani replied in the negative and

gave her statement in writing.

10.Learned counsel for the appellants further submitted

that the finding recorded by the Trial Court regarding ‘threat

to deceased by the accused-respondent’ and ‘motive’ are as

follows:

Threat to deceased by the accused-Respondent

“I have no reason to disbelieve the witnesses about

the threats given to Rani Chaudhary and deceased

Sikand.”

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Motive

“Believing the deposition of Ms. Rani Chaudhary,

H.D. Sikand and others witnesses, I find that

accused had motive to kill not only Rani Chaudhary

but also deceased Kishan Sikand so that they don’t

live together against the wishes of the accused.”

Learned counsel submitted that the High Court while

accepting the aforesaid findings on the second aspect i.e.

Motive, has considered three letters dated 2.10.1980,

16.11.1980 and 3.03.1982 out of context inasmuch as the

said letters cannot be read in isolation, particularly in the

factual background of the relations and the conduct of the

respondent and his behavior with Rani Chaudhary and Kishan

Sikand.

11.Learned counsel for the appellants also submitted that

the High Court disbelieved the evidence of Mohd. Shafi (PW-7)

who saw the accused-Respondent coming out of the house of

the deceased and going towards Sunder Nagar market on the

reasoning that Mohd. Shafi who had gone to first floor of 98,

Sunder Nagar, to give keys ought to have noticed the existence

of parcel, which he did not mention. Learned counsel

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submitted that outsiders normally ignore anything lying on the

staircase or other place of house inasmuch as they are not

concerned with the same, particularly when a number of

persons are living in the same house. Learned counsel

submitted that the High Court has also disbelieved the

testimony of this witness, firstly, on account of the delay and

secondly, that he was the employee of Sikand Motors and that

neither Suresh Gopal (PW-3) nor Mohd. Shafi (PW-7) had

mentioned each other’s presence on the spot in their 161

Cr.P.C. statements recorded by the Police. It was submitted

that no question was put as to why Mohd. Shafi did not inform

the Police about the visit of the accused to the house of Sikand

on 25

th

September, 1982 or that whether he had noticed the

presence of parcel or not.

12.Learned counsel appearing on behalf of Respondent No.2

submitted that the Trial Court has convicted Respondent No.2

for the offence of murder only on the basis of circumstantial

evidence and the conviction has been overturned by a Division

Bench of the Delhi High Court. It is further submitted that the

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circumstances relied upon by the prosecution have not been

satisfactorily established against Respondent No.2 and the

circumstances said to have been established against

Respondent No.2 do not provide a complete chain that is

required to prove his guilt. The standard of proof required to

convict a person in a case of circumstantial evidence, has not

been met either. It is submitted by the learned counsel that

the law requires that the circumstances relied upon in support

of the conviction must be fully established, and that the chain

of evidence furnished by those circumstances must be so

complete, so as not to leave any reasonable doubt for a

conclusion, consistent with the innocence of the accused. The

circumstances from which the conclusion of guilt is to be

drawn, must not only be fully established, but also be of a

conclusive nature and consistent only with the hypothesis of

the guilt of the accused and they must not be capable of being

explained by way of any other hypothesis except the guilt of

the accused, and when all the said circumstances are

collectively considered, the same must lead only to the

irresistible conclusion that the accused alone is the

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perpetrator of the crime in question, which is not the case in

the present appeals, the learned counsel submitted.

13.Learned counsel for Respondent No.2 next submitted

that the contention of the appellant that the Crime Branch of

Delhi Police did not investigate the case properly and with

promptitude due to the influence of Lt. Col. Chaudhary

(Respondent No.2) whose father was former I.G. in Delhi

Police, is an ex facie baseless and unfounded allegation. The

father of Respondent No.2 had passed away long back in 1956

and the I.O. Inspector Kochar had not even joined Delhi Police

by then and it is a farfetched allegation that he had been

influenced by the association of Lt. Col. Chaudhary. In any

case, the prosecution has not put any suggestion to Inspector

Kochar in his testimony that he wrongly recorded the

statement of any witness or that Lt. Col. Chaudhary had

influenced him in any manner.

14.Learned counsel for Respondent No.2 further contended

that the prosecution’s whole case is not based on any concrete

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evidence or eye-witness testimony but on presumption and

imputation of motive to Lt. Col. Chaudhary that he had an

animus towards the deceased Kishan Sikand due to his

ex-wife Rani Chaudhary living with Kishan Sikand. This

cannot be true for the following reasons:

(a) First, if the reason of anyone’s ex-spouse living

with/marrying another person led to people killing each

other, then it would have already resulted in an unholy

mess of biblical proportions.

(b) Second, all the three protagonists namely Lt. Col.

Chaudhary, Rani Chaudhary and Kishan Sikand had

experience of previous marriages – the marriage between

Lt. Col. Chaudhary and Rani Chaudhary was second

marriage for both as he was a divorcee and she was a

widow and out of previous wedlock she had two

daughters and out of the wedlock with Lt. Col.

Chaudhary they had one daughter; and Kishan Sikand

was also a divorcee and father to a son. So, divorce and

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living apart was not a new concept to any of the three

parties so as to motivate them to kill someone.

(c) Third, due to the differences between husband and wife,

Rani Chaudhary left Bangalore where Lt. Col. Chaudhary

was posted and came to Delhi and started living

separately from 1976 itself, and subsequently she started

living with Kishan Sikand at his house. Other than his

concern for the future and upbringing of the three young

daughters, Lt. Col. Chaudhary was already used to a life

without Rani Chaudhary who had been living apart from

him since 1976. Therefore, there was no sudden trigger

to plan in such detail as alleged and kill Kishan Sikand.

(d) Fourth, to suggest that merely because Lt. Col.

Chaudhary and Rani Chaudhary went through divorce

proceedings and some things were said during that time,

he would decide all of a sudden in 1982 to kill Kishan

Sikand, is too far-fetched and conjectural, and certainly

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not on which a conviction under Section 302 can be

based.

(e) Fifth, letters dated 22.10.80, 16.11.80 and 03.03.82

marked as Ex.PW-1/FF, Ex.PW-1/GG and Ex.PW-1/NN

respectively, addressed by Lt. Col. Chaudhary to Rani

Chaudhary show that he had reconciled to a life without

her but was concerned for the well being and future of

the three daughters.

15.It is further submitted by the learned counsel for

Respondent No.2 that the testimony of PW-7 Mohd. Shafi is

false, manufactured and cannot be relied upon, and that he

was a planted witness is clear from the following facts:

(a)First, it is most pertinent to point out that if the

testimony of the said sole so-called eye-witness in the

whole case PW-7 is taken at its face value even then it is

nowhere stated that he saw Lt. Col. Chaudhary with any

parcel let alone a parcel bomb or that he saw Lt. Col.

Chaudhary delivering anything to the deceased’s house;

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he has merely stated that he saw Lt. Col. Chaudhary

coming out of the gate of the deceased house on

25.09.1982. There is neither any eye-witness nor any

evidence to show that the so called booby trap parcel was

actually delivered, or that it was delivered on this day, or

that anybody received the said parcel, or that anybody

saw Lt. Col. Chaudhary delivering anything let alone a

booby trap parcel to the deceased’s residence.

(b)Second, there was no eye-witness available as long as the

Delhi Police investigated the case. However, as soon as

the CBI took over the case, two Link Witnesses, magically

appear – PW-7 Mohd. Shafi and PW-9 Jug Lal. Even Jug

Lal did not support the prosecution story in Court. He

was declared hostile.

(c)Third, PW-7 Mohd. Shafi comes into the picture only on

16.07.1983 – after nine and half months of the incident –

when his 161 Cr.P.C. statement was recorded by the CBI.

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PW-7 coming up with a belated statement casts serious

doubts on his truthfulness.

Learned counsel argued that delay in recording the

statements of the eye-witnesses casts a serious doubt about

they being eye-witnesses to the occurrence. In support of this

submission, he relies upon a recent judgment of this Court in

Shahid Khan v. State of Rajasthan, (2016) 4 SCC 96,

wherein this Court reversed the conviction for murder as

statements of eye-witnesses were recorded after 3 days of

incident and no explanation regarding the same was given.

(d)Fourth, in the same judgment i.e. Shahid Khan v. State

of Rajasthan (supra), this Court further held that

evidence of witnesses became unreliable when there was

no corroboration of their evidence, and a further reason

for reversal of conviction for murder was that there was

no information available as to how police came to know

that witnesses saw the occurrence and also as the case

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against accused persons was not proved beyond

reasonable doubt.

(e)Fifth, PW-7 Mohd. Shafi admits that he had never seen

Lt. Col. Chaudhary there ever before. It is highly doubtful

that he would be particular in noticing that Lt. Col.

Chaudhary was coming out of the gate of 98, Sunder

Nagar, or that he would be able to say after 10 months

that he saw Lt. Col. Chaudhary.

(f)Sixth, PW-7 is an old and trusted employee of the

Sikands with over 30 years of service with them and is,

therefore, clearly not an independent and reliable witness

and is the only person deposing to have seen Lt. Col.

Chaudhary near the main gate coming out of 98, Sunder

Ngar on 25.09.1982.

(g)Seventh, PW-7 has stated that subsequent to spotting of

Lt. Col. Chaudhary, he parked the car, locked it and went

upstairs to deliver the keys of the car to Kishan Sikand

and even at that time he did not see any parcel lying in

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the staircase. PW-7’s testimony itself rules out that Lt.

Col. Chaudhary had placed any parcel on that day as

alleged by the prosecution.

(h)Eighth, the claim to recognize a person in the headlights

of a moving car, when not specifically looking out for

him, would be a very tall and motivated claim, not free

from suspicion, especially when sunset occurred at 6.16

p.m. on 25

th

September, 1982 (recorded data available

with Meteorological Bureau) and it gets pitch-dark by

6.45 p.m. Also there was no streetlights outside 98,

Sunder Nagar in 1982.

(i)Ninth, during his cross-examination, except for the exact

date and time of seeing Lt. Col. Chaudhary outside 98,

Sunder Nagar, PW-7 Mohd. Shafi could not remember

any other date in 1982 – neither his son’s date of

marriage, nor where his son worked, nor his own

birthday, nor any important religious or personal

occasion.

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The learned counsel, therefore, argued that the entire

statement of PW-7 is tailor-made to suit the prosecution story

only to create a link between the planting of a parcel and Lt.

Col. Chaudhary. Such evidence is to be treated with great

suspicion by law and a delay of just a few days, in such

circumstances, has been held to be unreliable.

16.Learned counsel for Respondent No.2 lastly submitted

that the prosecution has failed to prove their case beyond

reasonable doubt for the following reasons:

i)Motive to Kill: It is evident from Respondent No.2’s letters

that he had reconciled to the inevitability of divorce. The

High Court has come to the correct finding that while there

is scope for an argument that inasmuch as there is

evidence wherefrom a motive can be attributed to

Respondent No.2; there is an equal scope for an argument

that there is evidence on record wherefrom said motive gets

negated. To conclude, the only admissible evidence which

remains against Respondent No.2 is that of motive, which

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itself is negated from the readings of the said letters. But

motive, being presumptive evidence, is a weak evidence and

by itself cannot form a chain of circumstances so complete

that the only inference possible is the guilt of Respondent

No.2, ruling out his innocence.

ii)Access to Hand Grenade: It is submitted that Respondent

No.2 was an Army Officer and there is no evidence on

record that he respondent would have procured or have

access to a POK hand grenades as categorically proved by

the testimony of PW-45, DW-3 and DW-6. Also the

Respondent was evacuated from the battlefield in a

wounded condition after he was relieved of all the arms and

ammunition. Moreover, the Respondent belonged to four

horse regiment who are not specialized in anatomy of arms

and ammunition especially hand grenade. Further, there

was no evidence to the effect that any POK hand grenade

was stolen at any time. Also it would be preposterous to

suggest that the Respondent had stolen a Pakistani grenade

during the Indo-Pak in 1971, so that he may use it for

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personal objective in future and that he actually used it a

decade later in 1982.

iii) Presence of Respondent at Deceased’s house : The

whereabouts of the Respondent on 25.09.1982 is on record

from about 1 pm till about 11 pm and at no stage he went

anywhere in the vicinity of 98, Sunder Nagar. The

Respondent played golf from 1.30 pm till 5.30 pm, then

refreshed himself, changed and had refreshments. PW-20

has deposed before the Court in his cross-examination that

the Respondent was with him from 7.45 pm on 25.09.1982

till 8.15 pm. It is corroborated by DW-2 Maj. A.K. Nehra

that the Respondent arrived at Friends Colony at about

8.15 pm accompanied by short fat person signifying PW-20.

Thereafter, DW-2 dropped the Respondent at 4, Friends

Colony, where a party was going on. The Respondent’s

presence is further confirmed till 11 pm by DW-1 Mr.

Rattan Sehgal at a party in Friends Colony.

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iv) Disclosure Statement : The “voluntary” disclosure

statement dated 05.08.1993 was coerced after five days in

CBI custody and the Respondent has not signed the

disclosure statement. The witness to such disclosure

statement has also not signed the statement of the

Respondent. One of the two independent witnesses has

been given up by the prosecution. The Respondent had not

pointed to any specific typewriter and the typewriter

machine alleged to be used by the Respondent for typing

the address was not even sealed on the same day, but much

later i.e. on 01.10.1983.

v)Typewriter used for typing address on the Parcel

PW-75 has led no evidence of any special knowledge gained

by him except for a three days stint with Godrej, a company

which manufactures typewriters. Further the High Court

has in details discussed the criteria for comparison of

typewriter evidence, whereby the High Court came to the

conclusion that the expert in comparing the two address as

alleged typed from the same machine has not followed the

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reasoning and procedure which an expert necessarily needs

to follow as per Fryes test. The seized specimens taken from

Janta Commercial were not sealed. Further, PW-75 has

admitted that the questioned document does not contain

clear impressions due to mutilation and that having

admitted thirteen dissimilarities during cross-examination,

an attempt was made by PW-75 to explain the said thirteen

dissimilarities, and therefore, no reliance can be placed on

his report and testimony.

17.Learned counsel for Respondent No.2 submitted that the

rule of evidence setting out the threshold of conviction based

on circumstantial evidence emanating from the decision in

the English case of R. v. Hodge (168 ER 1163 (1838), and

subsequently followed by all the common law countries, is that

before a person is convicted entirely on circumstantial

evidence, the Court must be satisfied not only that those

circumstances are consistent with his having committed the

act, but also that the facts are such, so as to be inconsistent

with any other rational conclusion other than the one that the

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accused is the guilty person, is not met by any stretch of

imagination in the above-mentioned factual and legal scenario,

and therefore, these appeals deserve to be dismissed.

18.After hearing the learned counsel for the parties and after

going through the records of this matter, including the

evidence, as analyzed by the High Court as well as the Trial

Court, it appears that the case in hand is totally dependent

upon the circumstantial evidence. We have examined the

evidence laid in course of the arguments and have specifically

considered the tests which have to be met by the prosecution

to get success in the matter as laid down by this Court in

Sharad Birdhichand Sarda Vs. State of Maharashtra ,

(1984) 4 SCC 116, wherein the tests have been specifically

given and it appears to us after analyzing the facts and

evidence in this case, that the prosecution has failed to pass

such tests to bring home the guilt of the accused.

Accordingly, in our opinion, the High Court has correctly come

to the conclusion after analyzing the facts and the evidence. In

our opinion, the arguments which have been put forward in

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the matter by Mr. D.N. Ray, learned counsel appearing on

behalf of respondent No.2, are much more acceptable in the

facts and circumstances of this case. The findings recorded by

the High Court are plausible, logical and persuasive, reached

by the materials on record and command for affirmation.

Thus, we do not have any hesitation to hold that the High

Court has correctly come to the conclusions with the reasons

given therefor. Accordingly, we do not find any merit in these

appeals which are hereby dismissed.

….....….……………………J

(Pinaki Chandra Ghose)

….....…..…………………..J

(Amitava Roy)

New Delhi;

December 15, 2016.