http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18  

dogs of the dog squad were first let loose and after picking up  the smell from the lock lying in the corner of the  back courtyard  and  from the spot, went to the  room  where  the appellant  was sitting and each of the dogs pointed  towards him by turn.  That raised a suspicion against the appellant. The  SHO  then asked the appellant to remove his  shirt  and found  that  the  appellant had injuries in  the  nature  of bruises  etc. on the front part of his, body, on the  chest, as  well as on his back, The appellant was thereafter  taken for further interrogation to the police station, and in  the presence  of  the  Sub  Inspector, PWI and  PW2  he  made  a disclosure statement to the effect that he had concealed the golden  chain  and  the  bangles  in  his  bathroom  and  in pursuance of the disclosure statement, the appellant led the police party to the bathroom of his house and after removing the cover from the drain hole, took out the golden chain and the bangles and handed them over to SHO.  The appellant  was placed  under  arrest.  After the disclosure  statement  was made the case which was originally registered under  Section 460  IPC was converted into one under Section 302 read  with section 203 IPC. After completion of the investigation, the challan was filed against  the appellant and he was tried for  offences  under Section 302/203 IPC in the Court of the Additional  Sessions Judge.  The prosecution sought to establish the case against the appellant on the basis of circumstantial evidence, there being  no eye-witness of the occurrence.  The  circumstances set  up  by the prosecution were : (i)  information  to  the police  at  4.55  A.M  given by  a  neighbour  and  not  the appellant;  (ii)  that information that a murder  had  taken place  was  not  given but intimating the  happening  of  an incident;  (iii)  The accused having slept at night  in  the verandah   with  tile  deceased  after  having  locked   the collapsable  door  of  the verandah from  inside;  (iv)  The deceased  and accused were last seen together; (v) The  dogs of  the  dog squad having pointed out to the  accused  after picking  up  scent from the lock; (vi) The  ornaments  which were  on the person of the deceased while she was  sleeping, and  found  missing  when  she  was  discovered  dead,  were recovered  from the drain hole of the bath room attached  to the  bed room of the accused in consequence of and  in  pur- suance  to  the disclosure statement made  by  the  accused; (vii)  injuries  found on the person of the accused  in  the nature  of  abrasions, contusions, and  (viii)  the  accused having given false information to the police by means of his statement Ext.  P5. 228 The  Sessions Judge after carefully analysing the  aforesaid circumstances held that the prosecution has entirely  failed to  prove  any  of  the circumstances  set  up  against  the accused, much less to establish the chain of  circumstances, so  as  to  bring  out a nexus between  the  crime  and  the accused, and acquitted the appellant for the offences  under Section 302/203 IPC. The  State appealed to the High Court and a  Division  Bench reveresed the order of acquittal of the appellant.  The High Court  held  that the circumstances formed a chain  and  the sequences  were so complete by themselves that one was  left in no manner of doubt that the appellant alone had committed the  crime.  The appeal was allowed, the order of  acquittal was  set aside, and the appellant was sentenced  to  undergo rigorous  imprisonment for life under Section 302  IPC,  and also  to undergo rigorous imprisonment for a period  of  one year under Section 203 IPC. In  the appeal to this Court it was contended on  behalf  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18  

consequent  recovery  pursuant  thereto  of  the   ornaments belonging to the deceased is of such an incriminating nature that  if  found  established  by  reliable  and  trustworthy evidence,  it  would go a long way to furnish proof  of  the guilt of the appellant and connect him with the crime and if the evidence in 230 support  of that circumstance is found to be  not  reliable, the  entire  chain of circumstantial evidence will  snap  so badly  as to affect the credibility of the prosecution  case as a whole. [238G-H) 6.   According  to the prosecution after the  appellant  had been  taken  to  the police  station  by  the  investigating officer he was interrogated after being placed under arrest. He  voluntarily  made  a  disclosure  statement  Ex.PC.  The disclosure  statement was recorded by the SHO and  has  been attested by Kuldip Kaul PWI, SI Dalip singh PW6 and  Harnaik Singh  PW2.   Pursuant  to  the  disclosure  statement,  the appellant  is  alleged to have led the police party  to  the recovery of the ornaments from a drain-hole in his bathroom. The  recovery  memo EX.PF was prepared at the spot  and  was attested  by  PW6.  PWl and PW2  besides  the  Investigating Officer. [239A-B] 7.   According  to  the appellant, however, he had  made  no disclosure  statement  nor  led  the  police  party  to  the recovery  of the ornaments as alleged, and according to  the defence  version,  the missing ornaments had  in  fact  been recovered  by the police party around 11 A.M. during  search from  the  service lane, from underneath a  slab,  near  the boundary  wall and at that time the appellant and  Jagminder Dass  Jain  were  also present.   This  defence  version  is supported by the evidence of DW2, Tara Chand, father of  the deceased. [242D-E] 8.   The  Sessions Judge carefully considered  the  evidence led  by  the  prosecution  with  regard  to  the  disclosure statement and the recovery of ornaments.  It was found  that the  evidence  of Harnaik Singh PW2, who according  to  DW11 Sunder  Lal constable of police station Defence Colony,  had been earlier also cited as a witness for the prosecution  in a  case investigated by Harmit Singh the then  Sub-Inspector of  police  and the present Investigation  Officer  was  not reliable and that the Investigating Officer had not told the truth when he had deposed that he did not know Harnaik Singh earlier.  The Sessions Judge also found the evidence of  PW1 Kuldip  Kaul as not reliable or trustworthy and  disbelieved his  testimony  by  giving  cogent  reasons  after  properly appreciating  the  evidence  led by  the  prosecution.   The defence  version with regard to the recovery found  as  more probable  and it was opined that the  investigating  officer had  created  false cluses and  fabricated  false  evidence. [243H, 244A-B-D] 9.   The High Court on the other hand did not deal with  the various  discrepancies and contradictions appearing  in  the prosecution evidence 231 relating  to the making of the disclosure statement and  the recovery  of  the  ornaments,  but  place  reliance  on  the testimony  of Kuldip Kaul PWl and Harnaik Singh PW2 to  hold that the disclosure statement and the recovery had been made in the manner suggested by the prosecution. [244G] 10.  There  is contradiction between the evidence of  Kuldip Kaul  PWl  and the I.O. as to the place  where  Kuldip  Kaul signed  the  recovery memo.  According to the  I.O.  it  was signed  at the spot while according to Kuldip Kaul  PW1,  he had  returned  to the police station and  there  signed  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18  

deceased,  the  sister of the deceased, the tenants  of  the house  and  other neighbours who had reached the  spot,  the appellant  was  wearing only a vest and the  pyjama  and  no shirt and there were no marks of injuries on his body before he  was taken to the police station.  The  prosecution  case regarding  the  presence of injuries on the  person  of  the deceased also therefore, is quite doubtful. [248G-H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 123  of 1985. From the Judgment and Order dated 12.11.84 of the Delhi High Court in State Criminal Appeal No. 71 of 1978. R.K. Garg and Rajendra Prasad Singh for the Appellant. 233 N.N. Goswamy and Ashok Bhan for the Respondent. The Judgment of the Court was delivered by DR.  ANAND,  J. This appeal by special  leave,  is  directed against  the judgment of the High Court of Delhi dated  12th of  November 1984, setting aside an order of the  Additional Sessions  Judge  New Delhi, acquitting the appellant  of  an offence under Section 302/203 IPC. The  prosecution  case  is  that on  the  fateful  night  of 25th/26th July, 1976, the appellant and his wife, Usha Jain, went  to sleep in the back verandah of their house  situated at  P-5, Green Park Extension, New Delhi while  his  brother M.P.  Jain  alongwith his wife Sharda and children  went  to sleep  separately  in  their bed-room  in  the  same  house. Police  Control  Room  was informed over  the  telephone  by Sulekh  Chand Jain at 4.55 A.M. that an incident  had  taken place  at  P-5, Green Park Extension and  on  receiving  the telephone message, S.I. Mauji Ram made a record of it in the daily  diary  and  passed on the  information  to  the  duty officer  at  police station Hauz Khas.  ASI Maha  Singh  was deputed  to  proceed to the spot for  investigation  of  the case.   After  reaching the spot, the said  ASI  Maha  Singh informed  the police station on telephone that a murder  had taken  place.  The information so provided was  recorded  by ASI Mangal Sen in the daily diary Whereupon SHO Harmit Singh immediately  left for the spot alongwith SI Dalip Singh,  SI Moti  Singh,  Constable Bhawani Dutt and  Constable  Randhir Singh.   The police party arrived at the spot at about  5.35 a.m.  and took charge of the investigation.   The  appellant was  present near the dead-body which had been covered by  a Dhoti  and  on  interrogation, the  appellant  informed  the police party that his brother and family had retired for the night in their bed room at about 10.00 p.m. and he alongwith his  wife had slept in the back verandah.  Before  going  to sleep,  he  had  locked the collapsable  door  of  the  back verandah.   The  wife of the appellant was  wearing  a  gold chain on her neck, eartops in her ears and golden bangles on her  wrists besides glass bangles.  At about 1.30 a.m.,  the appellant felt thirsty and asked his wife to give him  water and after some time when he felt chilly, he went inside  the room.   He  slept in the room while his wife  kept  sleeping outside.   At  about  3.45 a.m., the  appellant  got  up  to urinate and when he went outside the room, he found that his wife  was  lying on the cot with her face  upwards  but  her clothes were in a loose condition and he was   almost  naked upto the thighs.  On going closer to 234 the cot, he found her tongue protruding and on touching her, he  found her dead.  He noticed some scratches on  her  face

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18  

and neck and also discovered that the golden chain which was on  her neck and golden bangles were missing from her  body. According  to the appellant, his wife had been  murdered  by somebody by strangulation while committing the theft of  the golden chain and the bangles.  He started screaming and  his brother, the brother’s wife as well as some neighbours  came there.   Since, his telephone was found to be out of  order, police was informed at his request by Sulekh Chand,  another neighbour, from his telephone.  The parents of the deceased, living  in  Sonepat were also conveyed the  tragic  news  on telephone  through their neighbours.  The statement  of  the appellant  which revealed a case of lurking house  trespass, with  a  view  to commit offence of theft  and  murder,  was recorded  as  Ex.  P5 and a case under Section 460  IPC  was registered.   The  statement of the appellant Ex.   P5,  was despatched  by SHO Harmit Singh to the police  station  with his endorsement for registration of a case under Section 460 IPC.   Formal  FIR was registered by ASI Mangal Sen  at  the police station and the same was received back by the SHO  at the house of the appellant at about 6.45 a.m. The crime team as  also the dog squad were summoned.  Both the dogs of  the dog  squad  were first let loose to pick up  the  smell  and according  to  the ASI Ranbir Singh, in-charge  of  the  dog squad,  the  dogs after picking up the smell from  the  lock lying in the corner of the back courtyard and from the spot, went to the room where the appellant was sitting and each of the  dogs  pointed  towards  him by  turn.   That  raised  a suspicion  against the appellant.  According to the SHO,  he then asked the appellant to remove his shirt and found  that the appellant had injuries in the nature of bruises etc.  on the front part of his body, on the chest, as well as on  his back.   Since  the appellant had told the  police  that  the bangles of his wife were identical to the bangles of Sharda, the wife of his brother M.P. Jain, who also is the sister of the deceased, the SHO took into possession four bangles from Sharda  also  for  comparing the same  in  case  the  stolen property was recovered.  The appellant was thereafter  taken for  further  interrogation to the police  station.   Before proceeding  to  the police station., the  SHO  had  effected recoveries  of various articles including some  hair,  lying near  the dead body on the cot.  The appellant had  produced the key at the asking of the SHO, which purported to be  the key  of  the  lock which had been found lying  in  the  back court-yard and the same was taken into possession.  The lock was also taken into possession but it did not appear to have been 235 broken  or  tampered  with.  The recovery  of  the  key  was witnessed amongst others by Kuldip Kaul PWl who was  present in the crowd outside the home of the appellant.  The inquest proceedings were conducted by SI Moti Singh and the body was thereafter sent for postmortem examination. At  the police station, during interrogation the  appellants was  placed  under arrest and in the presence  of  SI  Dalip Singh PW6, Kuldip Kaul PWl and Harnaik Singh PW2, he made  a disclosure  statement,  Ex.  PC, to the effect that  he  had concealed  the golden chain and the bangles in his  bathroom and in pursuance of the disclosure statement, the  appellant led the police party to the bathroom of his house and  after removing the cover from the drain hole, took out the  golden chain and the bangles and handed the same over to SHO Harmit Singh  in presence of the witnesses.  Recovery  memo,  EX.PF was  prepared  and the golden chain and  the  bangles  after being  duly weighed were sealed separately and the seal  was handed over to Kuldip Kaul PW1.  The appellant was sent  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18  

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"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18  

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 240 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 241 grievances.  I have not organised any other function in  the area except the one stated above.  Regarding the signing  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18  

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 242 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18  

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 243 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18  

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. 245 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18  

clippings and the hair have failed to connect the  appellant with the crime. 248 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18  

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. 250