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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.

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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

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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

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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

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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

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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.

246

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

249

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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