REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.705  OF 2008

VARUN CHAUDHARY .....APPELLANT.

        VERSUS

STATE OF  RAJASTHAN .....RESPONDENT

WITH

CRIMINAL APPEAL NO.561 OF 2008

J U D G M E N T

ANIL R. DAVE, J.

1) Being  aggrieved  by  the  Judgment  delivered  in  

Criminal Appeal No.935 of 2005 and in Criminal Appeal No.  

798 of 2006 by the Rajasthan High Court, Criminal Appeal  

No.705/2008 and Criminal Appeal No.561 of 2008 have been  

filed respectively.  The appellants in both the appeals have  

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been convicted under the provisions of Section 302 of the  

Indian Penal Code to suffer imprisonment for life and a fine  

of Rs.1,000/-,  in default 3 months’ simple imprisonment.  

As  the  appellants  in  both  the  afore-stated  appeals  were  

involved in the same offence, both the appeals were heard  

together  and  they  are  disposed  of  by  this  common  

judgment.

2) Facts giving rise to the  appeals referred to above  

in a nutshell are as under:-

(a) Bhawani  Singh  (deceased)  was  an  Income  Tax  

Officer who was posted at Ajmer and was a member of a  

search  party,  function  of  which  was  to  conduct  raids  on  

certain persons’ premises to find out whether the concerned  

persons had evaded payment of income-tax.  

(b) In the evening of 22nd August, 2000, the deceased  

had  left  his  residence  for  going  to   Ajmer  Club  with  an  

intimation  to  his  son  Ajit  Singh(P.W.11),   that  he  would  

return  by  10  p.m.   As  Bhawani  Singh  did  not  return  till  

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midnight,  Ajit  Singh  (PW-11)  had enquired  from Vasudev  

(P.W.5), as to why the deceased had not returned.  Vasudev  

(P.W.5), had thereupon informed Ajit Singh  (P.W.11),  that  

he had given lift to the deceased from Ajmer Club and had  

dropped him near Ricoh circle, which was near his residence.  

In the circumstances, Ajit Singh (P.W.11) had gone to make  

inquiry near the residence of Vasudev (P.W. 5), but in the  

meantime it was informed that body of the deceased was  

lying  near  Ricoh  circle  which  was  not  quite  far  from the  

residence of the deceased.  Incised wound on left  side of  

chin and stab wounds were found on his body and it was  

found  that  the  deceased  died  as  somebody had  attacked  

him.    In  the  circumstances,  First  Information  Report  

(Ext.P.15)  was  lodged  around  2  a.m.  and  thereafter  

necessary  investigation  was  made  by  the  Investigation  

Officer (P.W. 26 ).   In the course of investigation, Varun  

Chaudhary- Accused No.1, Sudhir @ Bunty –Accused no.2  

and Himmat Singh @ Bobby –accused no.3 were arrested.

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(3) It was the case of the prosecution that the afore-

stated  accused  had  committed  the  offence  of  murder  by  

inflicting serious injuries upon the deceased.  It was a case  

of  circumstantial  evidence  as  nobody  had  seen  the  

commission of the offence.  It was, however, recorded in the  

evidence that immediately after arrest of accused no.1 on 1st  

September, 2000, and arrest of accused no.2, a knife had  

been recovered from  accused no.1 whereas blood-stained  

clothes of Himmat Singh, accused no.3 had been recovered.  

(4) The trial court had considered the facts and on the  

basis of evidence recorded, accused no.1 was found to be  

guilty of having committed an offence under Section 302 of  

the IPC and was sentenced to undergo life imprisonment and  

pay a fine of Rs. 1,000/-, in default  three months simple  

imprisonment whereas accused Nos. 2 and 3 were acquitted.

(5) The  Trial  Court  had  considered  the  fact  that  a  

knife had been recovered from accused no.1 and in view of  

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the fact that incised wounds were found on the body of the  

deceased, it came to the conclusion that accused No.1 was  

guilty of the offence under the provisions of Section 302 of  

the IPC.  The trial court considered the evidence of   Pawan  

Kumar,  Home Guard (P.W.3),  who was  on duty near  the  

Ricoh Circle.  He had seen three persons riding on a motor  

cycle around midnight.  However, he could not identify the  

persons who were on the motor cycle.   

(6) Pooran Singh (P.W.6) ,  a police constable,   had  

also seen around same time three persons going on a motor  

cycle and as there were three persons on a motor cycle, he  

had given an indication to stop them by blowing his whistle  

but the motorcyclist did  not stop and he could not record  

the full number of the motor cycle  but he noticed that one  

of  the digits was ‘9’  in the number of the motor cycle.

(7) Post Mortem of the body of the deceased revealed  

that  the  following  injuries  had  been  inflicted  on  the  

deceased:

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i) Incised wound of 3 x  0.5 cm muscle deep on left  

side of chin.

ii)  Stab wound 2.5 x 0.5 cm on the lower part of the  

chest on the left side.      

(8) The said injuries were caused with a sharp edged  

weapon and in the opinion of the doctor,  the said injuries  

were  sufficient  to  cause  death  of  the  deceased.   (Post  

Mortem Report – Ext. 21).

(9) The trial court was of the view that the chain of  

circumstances had been completed and on the said basis,  

the order of conviction was passed.

(10) Being aggrieved by the order of conviction, an  appeal  

had been filed by accused No.1, whereas against the  

order of acquittal, so far as accused Nos. 2 and 3 are  

concerned,  state  had  filed  an  appeal  in  the  High  

Court.   The  appeals  had  been  heard  together  and  

ultimately, after considering the submissions made on  

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behalf of the learned advocates and upon perusal of  

the evidence, the High Court  confirmed the order of  

conviction of accused No.1. So far as  accused Nos. 2  

and  3  are  concerned,  the  High  Court  came  to  the  

conclusion that  they were also guilty of the offence  

for  which  they  were  charged  and,  therefore,  the  

appeal filed by the State had been allowed and the  

findings  of  acquittal  rendered  by  the  Trial  Court  in  

favour of accused Nos. 2 and 3 had been set aside  

and the said accused were also convicted under the  

provisions of Section 302 read with Section 34 of the  

Indian Penal Code to suffer imprisonment for life and  

a  fine  of  Rs.  1,000/-,  in  default  to  suffer  simple  

imprisonment for three months.

Being aggrieved by the aforesaid order passed by the  

High Court,  the aforesaid two appeals  have been filed by  

accused Nos.1 and 2.  

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(11) Criminal Appeal  No.705 of 2008, which pertains  

to the conviction of A-1 - Varun Chaudhary,  was argued by  

Mr. U.U. Lalit,  learned senior counsel and Criminal Appeal  

No.561  of  2008  was  argued  by  learned  counsel  Mr.  

Sanjay R. Hegde. The learned counsel vehemently submitted  

that the order of conviction is bad in law for the reason that  

there was no eye-witness and there was no complete chain  

of events,  which would lead to the only conclusion that the  

accused were guilty of the offence referred to hereinabove  

and there was no possibility of their being innocent.  In a  

case  of  circumstantial  evidence,  it  must  be  established  

beyond  doubt that except the accused,  nobody else could  

have committed the offence and the chain of events must be  

complete  in  such  a  manner  that  one  can  come  to  the  

conclusion that the accused was the only person who could  

have committed the offence and none else.  To substantiate  

their  case,  they submitted that there was no eye witness  

and only  evidence  which a  police  constable  (P.W.6)   had  

given was that he had seen three persons going on a motor  

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cycle.  Though he could not see the full number of the motor  

cycle,  he  could  notice  no.’9’  as  one  of  the  digits  in  the  

number  of  the motor cycle.   The said  witness specifically  

stated  that  he  could  not  recognize  any  of  the  accused.  

There was no identification parade so as to identify as to  

whether the three accused had been noticed by the Home  

Guard (P.W.3) and the Police Constable (P.W.6), who had  

seen three persons on the motor cycle.

(12) Thereafter, they submitted that recovery of knife  

and blood stained clothes could not have been relied upon  

by the trial court or by the High Court. The said recovery  

had  not  been  duly  proved  for  the  reason  that  witness  

Madanlal  (PW.25),  who  had  made  an  effort  to  prove  the  

recovery had admitted in his cross examination that he had  

remained outside the premises from which the knife and the  

blood stained clothes (Ext. P-7) had been recovered.  It was  

specifically  stated by the P.W.25  that when A-1 -  Varun  

Chaudhary  had taken the police party and the witnesses to  

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show the place where the knife had been hidden, he was  

asked to remain outside the premises and the police  and  

accused no.1 had gone in the premises and returned with a  

knife and blood stained clothes.  Another witness, Bhanwar  

Singh, PW.9, who was supposed to prove recovery of the  

motor  cycle  had  admitted  that  recovery  Panchnama  was  

signed by him in the police station. In view of the said fact,  

the  trial  court  should  not  have  relied  upon  the  said  

witnesses.  They further submitted that the knife which was  

alleged  to  have  been  recovered  was  never  shown  to  the  

accused  or was never produced in the court.  According to  

them,  as  law  laid  down  by  this  Court  in  Abdulwahab  

Abdulmajid Baloch vs.  State of Gujarat, 2009 (11) SCC  

625, the weapon recovered ought to have been produced  

before the court and should have been shown to the accused  

but admittedly,   neither the weapon was produced before  

the Court nor it was shown to the accused at any point of  

time.  

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(13) So far as the evidence,  which pertains to the tyre  

marks of the motor cycle, which was alleged to have been  

used in the offence is concerned, they submitted that there  

was  no  evidence  that  the  marks  of  the  tyre  had  been  

compared with the marks which were found at the place of  

the offence.  In fact there was nothing to show that tyre  

marks at the place of the offence and tyre marks found by  

FSL Report were same.   

(14) They further submitted that even at the time when  

the  accused  were  questioned  by  the  court  under  the  

provisions of  Section 313 of the Code of Criminal Procedure,  

the  weapon  and  the  blood  stained  clothes  had  not  been  

shown  to  the  accused.   They  relied  upon  the  judgment  

delivered by this Court in  Mohd. Abdul Hafeez v. State of  

Andhra Pradesh, AIR 1983 SC 367, to substantiate their  

case  that  the  articles  recovered  must  be  shown  to  the  

accused during the trial or at the time when his statement  

under Section 313 of Cr.P.C.  is recorded.

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(15) They  further  submitted  that  no  motive  was  

attributed against  the accused.   They fairly  admitted that  

though  motive  is  not  important  in  each  and  every  case,  

according to the learned counsel, even if one relies upon the  

statement made by the son of the deceased, the deceased  

might have  some enmity with persons dealing in scrap as  

the  deceased  had raided  premises  of  some scrap dealers  

and  due  to  the  said  fact,  some  threats  had  also  been  

received  by  the  deceased  from persons  dealing  in  scrap.  

The accused were neither dealers in scrap nor there was any  

evidence  that  at  the  behest  of  the  scrap  dealers,  the  

accused  had  murdered  the  deceased.   According  to  the  

learned counsel,  in absence of any motive, in a case which  

is based only on circumstantial evidence,  it would not be  

just  and proper  to  convict  the  accused,  especially   when  

there  was  no material  to  come to a conclusion  that  the  

accused had committed the offence.  So as to substantiate  

the  above  submission,   they  relied  on  the  Judgments  

delivered  by  this  Court  in   Surinder  Pal  Jain v.  Delhi  

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Administration  1993  Crl.L.J.  1871  =  1993  SCC (Crl.)  

1096  and   Tarseem  Kumar  vs.  Delhi  Administration  

1994 Sup.(3) SCC 367, respectively.

(16) For the aforestated reasons, they submitted that  

the order convicting the accused could not have been passed  

and,  therefore,   the  appeals  should  be  allowed  and  the  

accused should be acquitted.

(17) On the other hand,  the learned public prosecutor  

made an effort to support the judgments delivered by the  

High Court whereby the accused have been convicted.  He  

submitted that the evidence recorded by the trial court was  

properly appreciated by the High Court and looking to the  

reasons  given  by  the  High  Court,   interference  with  the  

Order of the High Court was not called for.

(18) We  have  heard  the  learned  counsel  and  have  

considered  the  submissions  referred  to  hereinabove  and  

relevant record.

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(19) Upon going through the judgments relied upon by  

the counsel appearing for the appellants and looking to the  

evidence  adduced  before  the  trial  court,  we  are  in  

agreement  with  the  submissions  made  by  the  learned  

counsel appearing for the appellants.

(20) Home  Guard,  Pawan  Kumar  (PW-3),  had  seen  

three persons on a motor cycle.  However, he stated that  

he  could  not  identify  the  persons  on  the  motor  cycle.  

Similarly, police constable  Pooran Singh (PW- 6)  had stated  

that around 12 midnight on 22nd August, 2000, he had seen  

two persons going on motor cycle and one of them was the  

deceased.  After sometime he had seen another motor cycle  

which was Suzuki, but he could not read complete number  

of  the  motor  cycle,  but  he  could  read  one  of  the  digits,  

namely No. ‘9’.  He whistled so as to stop the said motor  

cyclist but the motor cyclist did not stop.  Thereafter, he had  

seen another motor cycle, being Hero Honda which had hit a  

dog near  Santoshi Mata Temple.  It is pertinent to note that  

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the afore-stated two witnesses did  not  say that they had  

seen any of  the  accused.  Possibly  even they did not  see  

faces of the three persons, who were on the motor cycle.  

Possibly,  in these set of circumstances, having identification  

parade  would be futile and, therefore, there was no test  

identification  parade.  Thus,  nobody  had  seen  any  of  the  

accused.   So  far  as  identification  of  the  motor  cycle  is  

concerned,  PW-6 merely stated that  he saw one digit  of  

registration number of the motor cycle, which was ‘9’.  In  

our  opinion,  on  the  basis  of  one  digit  of  the  registered  

number,  it  would be dangerous to believe that the motor  

cycle recovered,  which also had digit ‘9’ in its number, was  

used  in  the  offence.  In  our  opinion,  on  such  a  scanty  

evidence  it  cannot  be  said  that  the  accused  had  been  

identified or the motor cycle which had been recovered was  

the one which was used by the accused at the time of the  

offence.   

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(21) In our opinion,  so called recovery  of  knife  and  

blood  stained  clothes  would  not  help  the  prosecution.  

Recovery of the motor cycle can not be said to be proved  

because Bhanwar Singh, PW-9 admitted the fact that he had  

signed  the  recovery  panchnama  in  the  police  station  

whereas  another  witness,   Madan Lal,   P.W.25 could  not  

establish  recovery of the knife as he was not present at the  

time and place from which the knife had been recovered.  

Moreover,  the knife was never produced before the court  

and was never shown to the accused and, therefore,  in our  

opinion,  the said evidence could not have been relied upon  

by the courts below for passing the order of conviction.    

(22)  It is pertinent to note that there is no evidence or  

even there is  no reference to the fact  that any one from  

Forensic   Science Laboratory or from the police personnel  

had lifted marks of the motor cycle tyre  from the place of  

the offence so that the same can be compared with the tyre  

marks of the motor cycle alleged to have been used in the  

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offence.  Unless tyre marks are lifted from the place of the  

offence  and upon comparison with  the  tyre  marks  of  the  

motor cycle recovered are found to be the same,  it cannot  

be said that   the motor  cycle  recovered was used in  the  

offence.  So as to establish the presence of the motor cycle  

at the place of the offence, the prosecution must show that  

the tyre marks which were found at the place of the offence  

were that of the motor cycle used by the accused.  It is also  

pertinent to note that marks of the motor cycle tyre which  

were received by the FSL were not in a sealed condition.  

Aforestated facts clearly denote that  the marks of the motor  

cycle tyre could not have been relied upon either by the Trial  

Court or by the High Court for establishing that the motor  

cycle having   particular tyre marks was used in the alleged  

offence.   

(23)  It  is  also pertinent  to note that  the prosecution  

could not establish the purpose for which the deceased was  

murdered by the accused. Of course, it is not necessary that  

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in  every  case  motive  of  the  accused  should  be  proved.  

However, in the instant case, where there is no eye witness  

or  where  there  is  no  scientific  evidence  to  connect  the  

accused with  the  offence,  in  our  opinion,  the  prosecution  

ought  to  have  established  that  there  was  some  motive  

behind  commission  of  the  offence  of  murder  of  the  

deceased.  It  was  the  case  of  the  prosecution  that  the  

deceased, an Income Tax Officer had raided the premises  

belonging  to  some  scrap  dealers  and,  therefore,  he  had  

received some  threats from such scrap dealers.  It is an  

admitted fact that the accused are not scrap dealers or there  

is nothing to show that the accused had been engaged by  

scrap dealers to commit the offence.  Thus, there was no  

motive behind the commission of the offence so far as the  

accused are concerned.

(24)  It  is  a  settled  legal  position  that  in  case  of  

circumstantial evidence, there must be a complete chain of  

evidence which would lead to a conclusion that the accused  

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was the only person, who could have committed the offence  

and none else.  In the instant case, there is nothing to show  

that  the  accused  had  committed  the  offence  and  on  the  

basis of the aforestated material, in our opinion, it would be  

dangerous  to  convict  the  accused.  In  the  case  of   G.  

Parashwanath vs. State of Karnataka, (2010)8 SCC 593,  

para 24, it has been stated that  “in deciding the sufficiency  

of the circumstantial evidence for the purpose of conviction,  

the court has to consider the total cumulative effect of all  

the proved facts, each one of which reinforces the conclusion  

of guilt and if the combined effect of all these facts taken  

together  is  conclusive  in  establishing  the  guilt  of  the  

accused,  the  conviction  would  be  justified  even though it  

may  be  that  one  or  more  of  these  facts  by  itself  or  

themselves is/are not decisive.  The facts established should  

be consistent only with the hypothesis  of  the guilt  of  the  

accused and should exclude every hypothesis except the one  

sought  to  be  proved………….  There  must  be  a  chain  of  

evidence so complete as not to leave any reasonable ground  

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for  the  conclusion  consistent  with  the  innocence  of  the  

accused and must show that in all human probability the act  

must have been done by the accused, where various links in  

chain  are  in  themselves  complete,  then  the  false  plea  or  

false defence may be called into aid only to lend assurance  

to the court”.   

(25) In another case of  C. Chenga Reddy v. State of  

A.P.,  reported in (1996) 10 SCC 193,  this Court has held  

that   “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 such  

circumstances  must be conclusive in nature.  Moreover, all  

the circumstances should be complete and there should be  

no gap left in the chain of evidence.  Further the  proved  

circumstances must be consistent only with the hypothesis  

of the guilt of the accused and totally inconsistent with his  

innocence.”

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(26) Due to the above stated facts, in our opinion, the  

conclusion reached by the courts below is not correct.  On  

the basis of  such scanty evidence, which is practically no  

evidence at all in the eyes of law, the courts below could not  

have passed the order of conviction.  For the reasons stated  

hereinabove, we are of the view that the orders convicting  

the accused-appellants in  both the appeals are not justified  

and,  therefore,   the  appeals  are  allowed.   The impugned  

orders are quashed and set aside.  The accused-appellants  

shall be released immediately, if not required in any other  

offence.   

            ...........................................J  

                                            (Dr. MUKUNDAKAM SHARMA)

  ........................................J.

                                            (ANIL R. DAVE) New Delhi October  29, 2010

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