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Tuesday, May 20, 2014

Evidentiary value of Circumstantial Evidence - Extra Judicial Confession - Recovery of Wrist Watch of 1971 - with inscription of letters VPS - not possible - as inscription of letters was possible only from 1997 - fact of recovery failed to prove - Earlier statement , the co - accused not mentioned the name of appellant - in earlier statement co accused named one Rohtas took the Wrist watch - Prosecution failed to prove the chain - Trial court rightly acquitted the accused - where as High court wrongly convicted the accused on the basis of extra-judicial confession which was partly proved but not in toto -Total misreading of extra judicial confession - Apex court held that In case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence, and the circumstances so proved must form a complete chain without giving any chance of surmise or conjecture and must also be consistent with the guilt of the accused. None of the circumstances relied upon by the prosecution and accepted by the High Court can be said to be the probability of the appellants’ guilt or involvement in the commission of the crime. Therefore, for the reasons recorded hereinabove, the judgment and order of the High Court is set aside; the appeals are allowed and the accused are acquitted forthwith. = Dhan Raj @ Dhand … Appellant versus State of Haryana ...Respondent = 2014(May. Part) http://judis.nic.in/supremecourt/filename=41532

 Evidentiary value of  Circumstantial Evidence - Extra Judicial Confession - Recovery of Wrist Watch of 1971 - with inscription of letters VPS - not possible - as inscription of letters  was possible only from 1997 - fact of recovery failed to prove - Earlier statement , the co - accused not mentioned the name of appellant - in earlier statement co accused named one Rohtas took the Wrist watch - Prosecution failed to prove the chain - Trial court rightly acquitted the accused - where as High court wrongly convicted the accused on the basis of extra-judicial confession which was partly proved but not in toto -Total misreading of extra judicial confession - Apex court held that In case of circumstantial evidence, each  circumstance  must  be  proved beyond reasonable doubt by independent evidence, and the circumstances so proved must form a complete chain without giving any chance of surmise or conjecture and must also be consistent with the  guilt  of  the  accused. None of the circumstances relied upon by the prosecution and accepted  by the High Court can be said to be the probability of the appellants’ guilt or involvement in the commission of the crime. Therefore, for the reasons recorded hereinabove, the judgment and  order of the High Court is set aside; the appeals are allowed and  the  accused are acquitted forthwith. =

Co-accused Sanjay, while in custody  of  Delhi  Police
   for a different case, made a statement about the occurrence of this case.    =
Sanjay  in  his  disclosure
   statement states that Dhan Raj and Badal,  the  appellants  herein,  were
   associated with him in the commission of the crime and that Dhan Raj  had
   taken away the briefcase and Badal took the wrist-watch of the  deceased.
   Furthermore, in his statement, Sanjay disclosed that he had  concealed  a
   Kirpan along with his blood stained clothes near Sadli Road, and  he  got
   the same articles recovered as well. Dhan Raj and Badal were arrested  on
   February 4, 1997 and recovery of briefcase and wrist-watch was  effected.
   Subsequently, on completion of investigation, a challan was presented  in
   the court.=
 In order to discuss the correctness of the order of conviction,  we  now
   proceed by considering the four grounds on which the High  Court  relied.
   
We would first discuss the reliance placed on the evidence given  by  the
   co-accused Sanjay. 
The co-accused Sanjay in the course  of  investigation
   by his confessional statement being an  extra-judicial  confession  dated
   February 4, 1997 named the accused appellants as his accomplices  in  the
   murder and robbery and stated that Dhan Raj and Badal took the  briefcase
   and wrist watch of the deceased  respectively.  
However,  in  an  earlier
   confessional statement dated January 25, 1997 made in  the  investigation
   in FIR No. 32 of 1997, Sanjay has named  Rohtas  as  his  accomplice  and
   stated that he only took the wrist watch and the brief case and from  the
   same confession the car of the deceased was recovered.   
From  the  later
   confession, the Kirpan and blood stained clothes were recovered.


10.  It is well established that extra-judicial confession has been  treated
   by this Court as weak evidence in  the  absence  of  a  chain  of  cogent
   circumstances, for recording a conviction (See: Gopal Sah  vs.  State  of
   Bihar[1], and Pancho vs. State of Haryana[2]). 
It was held  in  Sahadevan
   and Anr. vs. State of Tamil Nadu[3] that if an extra judicial  confession
   suffers from material discrepancies or inherent improbabilities then this
   Court cannot base a conviction on the same.  
In the present  case,  there
   is an apparent discrepancy in the confession statement of Sanjay and  the
   same is a glaring one as he has named different accomplices in  the  same
   crime  in  his  two  confessional   statements.   
Furthermore,   Sanjay’s
   confessional statements only connect him to the car and the  Kirpan,  his
   statement that the accused  appellants  took  the  wrist  watch  and  the
   briefcase in the absence of other evidence except  the  recovery  of  the
   same does not establish that anything  beyond  the  fact  that  they  may
   possess stolen goods. 
In no manner does the later statement  of  the  co-
   accused supports  that  the  accused  appellants  were  involved  in  the
   commission of murder. 
In the case of Pancho vs. State of Haryana  (supra)
   this Court did not convict  the  accused  Pancho  on  the  basis  of  the
   confession statement of the co-accused in the  absence  of  other  cogent
   evidence, inspite of the  belated  recovery  of  the  alleged  weapon  of
   murder.

The objects which were
   recovered were two common articles,  not holding much value and  it  does
   not seem rational that any accused would keep  such  incriminating  items
   connecting themselves to a crime with them in their house. 
Regarding  the
   recovery of the wrist watch from Badal and its identification  by  Shanti
   Devi PW7, we concur with the opinion of the  Trial  Court.  The  relevant
   extract of the judgment of the trial court is reproduced hereunder:

      “She further stated that she saw the wristwatch  Ex.P2 in  the  Police
      Station on 13.4.1997 and she identified the  watch  because  alphabets
      VPS were written  on the watch. This statement of PW7 does not inspire
      confidence because it does not appeal to the  common  sense  that  the
      wrist watch which was allegedly purchased in the year 1971 at the time
      of marriage of the deceased, could not carry the writing of  alphabets
      VPS thereon uptil 1997. Otherwise also, it  does  not  appeal  to  the
      common sense that a person would write any word on the wrist watch  to
      connect him in this fashion.  If these alphabets would  have  actually
      been written on the wrist  watch,  the  complainant  would  have  also
      mentioned this fact in the FIR because complainant was none  else  but
      the real brother of the deceased”

=

 Thus, we find many loopholes in the case of the prosecution and  grounds
   on which the High Court has convicted the accused  appellants.  
We  would
   refer to the  decision  of  this  Court  in  Munish  Mubar  v.  State  of
   Haryana[8] wherein Dr. Justice Chauhan  has  very  aptly  and  succinctly
   stated the following:

      “The circumstantial evidence is a close companion of  factual  matrix,
      creating a fine network through which there can be no escape  for  the
      accused, primarily because the said facts, when taken as a  whole,  do
      not permit us to arrive at any other inference but one indicating  the
      guilt of the accused.”

A court has to examine the entire evidence in  its  entirety  especially  in
case of circumstantial evidence and ensure that  the  only  inference  drawn
from the evidence is the guilt of the accused. 
If more  than  one  inference
can be drawn then the accused must have the benefit of doubt as  it  is  not
the court’s job to assume and only when guilt  beyond  reasonable  doubt  is
proved then it is fair to record conviction.

17. In case of circumstantial evidence, each  circumstance  must  be  proved
   beyond reasonable doubt by independent evidence, and the circumstances so
   proved must form a complete chain without giving any chance of surmise or
   conjecture and must also be consistent with the  guilt  of  the  accused.
   
None of the circumstances relied upon by the prosecution and accepted  by
   the High Court can be said to be the probability of the appellants’ guilt
   or involvement in the commission of the crime.

18. Therefore, for the reasons recorded hereinabove, the judgment and  order
   of the High Court is set aside; the appeals are allowed and  the  accused
   are acquitted forthwith. 
The appellant in Criminal Appeal No.703/2011  is
   already out on bail granted by this  Court;  the  appellant  in  Criminal
   Appeal No.1410/2010 is directed to be set at liberty  forthwith,  if  not
   required in any other case.

2014(May. Part) http://judis.nic.in/supremecourt/filename=41532

CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE
                                                             Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1410 of 2010
      Dhan Raj @ Dhand                                    … Appellant
                                   versus


                               State of Haryana
                                ...Respondent
                                    WITH

                       CRIMINAL APPEAL NO. 703 of 2011

  Badal                                                                   …
                                  Appellant
                                   versus

                                  State of Haryana
                                 ...Respondent




                               J U D G M E N T

Pinaki Chandra Ghose, J.

1. These appeals arise from the impugned  judgment  of  the  High  Court  of
   Punjab and Haryana  wherein vide a common  judgment  dated  February  26,
   2010, the High Court disposed of Criminal  Appeal  No.  496-DB  of  1999,
   Criminal Appeal No. 510-DB of 1999, Criminal Appeal No.  719-DB  of  2009
   and Criminal Revision No. 334 of 2000. The present appeals however  arise
   out of Criminal Appeal No. 496-DB of  1999  filed  by  accused  Dhan  Raj
   challenging the judgment  of  conviction  and  order  of  sentence  dated
   September 25 and 27,  1999  passed  by  the  Additional  Sessions  Judge,
   Jhajjar in Sessions  Case  No.21  of  21.5.1997/13.08.1998  and  Criminal
   Appeal No. 719-DB of 2009 filed by  the  State  of  Haryana  against  the
   judgment  of acquittal dated February 18, 2009  passed  by  the  Sessions
   Judge, Jhajjar in Session Case No.73 of  21.5.1997/17.3.2008,  acquitting
   the accused Badal of the charges framed against him.


2. The High Court in the present matters convicted  the  accused  appellants
   on the basis of circumstantial evidence by the impugned judgment. It  has
   been well established by  leading  judicial  precedents  that  where  the
   prosecution’s  case  is  based  on  circumstantial  evidence,  only   the
   circumstantial evidence of the highest order  can  satisfy  the  test  of
   proof  in  a  criminal  prosecution.  In  order  to  base  conviction  on
   circumstantial evidence the circumstantial  evidence  put  forth  by  the
   prosecution should establish a complete unbroken chain of events so  that
   only one inference is drawn out from the same. If more than one inference
   can be drawn then the accused should be entitled to the benefit of doubt.


3. In the present appeals we  therefore  would  evaluate  the  case  of  the
   prosecution in terms of the evidence brought on record and the statements
   and discovery made in the course of investigation.


4. The case of the prosecution revealed in the first  appeal  (being  Crl.A.
   No.1410 of 2010) is that the deceased Vijaypal was serving a  doctor  who
   was posted in the  Dispensary  of  Village  Kheri  Jat  and  residing  at
   Jhajjar. On January 24, 1997 he left for his dispensary from his home  at
   9.45 a.m. by a Maruti car which  did  not  have  a  registration  number.
   Sukhbir Singh (PW 13), a dispenser posted at  Kheri Jat  informed  Harpal
   Singh (PW 6), brother of deceased that the dead  body  of   Vijaypal  was
   found in a field of   village  Bizidpur  where  Harpal  Singh  went  with
   Sukhbir Singh and found the body in a side posture bearing injuries  from
   a sharp-edged weapon. There was blood on the ground and  the  Maruti  car
   was found to be missing. Harpal Singh filed an FIR  and investigation was
   initiated. Post mortem was also  performed.  The  wife  of  the  deceased
   disclosed that the deceased had with him a briefcase  and  a  wrist-watch
   when he left home. Co-accused Sanjay, while in custody  of  Delhi  Police
   for a different case, made a statement about the occurrence of this case.
   Subsequently, his production warrants were obtained and he  was  arrested
   for the present murder on February 4,  1997.  Sanjay  in  his  disclosure
   statement states that Dhan Raj and Badal,  the  appellants  herein,  were
   associated with him in the commission of the crime and that Dhan Raj  had
   taken away the briefcase and Badal took the wrist-watch of the  deceased.
   Furthermore, in his statement, Sanjay disclosed that he had  concealed  a
   Kirpan along with his blood stained clothes near Sadli Road, and  he  got
   the same articles recovered as well. Dhan Raj and Badal were arrested  on
   February 4, 1997 and recovery of briefcase and wrist-watch was  effected.
   Subsequently, on completion of investigation, a challan was presented  in
   the court.


5. The case of the prosecution in  the  second  appeal  is  also  the  same.
   However, the accused were tried  separately  as  the  accused  Badal  was
   arrested later.


6. After perusing the material brought  on  record,  we  would  narrate  the
   facts as they appear to us. However, as the  preliminary  facts  are  the
   same, for convenience’s  sake,  they  are  narrated  from  the  trial  in
   Criminal Appeal No. 1410 of 2010 and the trial in Criminal Appeal No. 703
   of 2011 will be discussed separately.


   1. Vijaypal (the deceased herein) was posted as a doctor in the Kheri Jat
      village dispensary and  he  was  residing  at  Jhajjar.   As  per  the
      statement of Raj Singh (PW 15), who  was  the  elder  brother  of  the
      deceased and stayed in the deceased’s house, on January  24,  1997  at
      about 9.45 a.m.,  Dr. Vijaypal left his home for the dispensary in his
      Maruti car, the registration of which was awaited; that  after  a  few
      minutes, the accused Sanajay, Dhan Raj and  Badal  in  a  four-wheeler
      reached the deceased’s home and inquired about him and disclosed their
      names afterwards, whereafter  they  immediately  left  towards  Delhi.
      Later in the day, Sukhbir Singh (PW 13) a dispenser posted at  Village
      Kheri Jat, informed Harpal Singh (PW 6), the younger  brother  of  the
      deceased, and the complainant that the dead body of Vijaypal was found
      lying in the wheat crop bearing  injuries  caused  by  a  sharp  edged
      weapon with blood on the ground nearby and the car of the deceased was
      also found to be missing. On the basis of  the  statements  of  Harpal
      Singh, FIR No.  26  of  1997  was  registered  and  investigation  was
      initiated with the conduction of the post-mortem and the recording  of
      statement of the witnesses by the Investigating Officer.


   2.  The statement of the wife of  the  deceased  being  PW  7  which  was
      corroborated with the statement of  Sub-Inspector  Brij  Pal   (PW-10)
      revealed that the deceased also had with  him  a  wrist  watch  and  a
      briefcase when he had left his home, which were also missing.  On  the
      next day, accused Sanjay was arrested by the Delhi Police  in  a  case
      under Section 411 of the Indian Penal Code arising out of FIR  No.  32
      of 1997 and from him, the car of the deceased  (determined  after  the
      engine and chassis-number of the car  were  tallied)   was  recovered.
      While in custody of Delhi  Police,  he  made  a  statement  about  the
      present case on January 25, 1997. In the said statement,  it  must  be
      noted that he named one Rohtas  as  his  accomplice  and  stated  that
      Rohtas only took the wrist-watch and the briefcase of the deceased.


   3.  Subsequently, Sanjay’s production warrants were obtained and  he  was
      arrested by the Haryana Police on February 4, 1997 in the present case
      arising out of FIR No.26 of 1997 and  therein  he  made  a  disclosure
      statement averring that appellants Dhan Raj and Badal were  associated
      with him in the commission of the crime and that Badal had taken  away
      the wrist-watch of the deceased  and  Dhan  Raj  had  taken  away  the
      briefcase. It must be noted that there is a  discrepancy  between  the
      two statements of Sanjay.


   4. Furthermore, Sanjay’s disclosure led  to  the  recovery  of  a  Kirpan
      concealed by him  and  blood-stained  clothes,  as  specified  in  the
      statement.  The blood on the Kirpan was found to be human blood by the
      Forensic Science Laboratory, Madhuban. It  appears  that  the  accused
      Dhan Raj was also arrested on February 4, 1997 and the recovery of the
      briefcase was effected. Accused Badal remained absent during the trial
      inspite of issuance of  warrant  of  arrest  and  he  was  declared  a
      proclaimed offender but he was arrested  later  and  subsequently  the
      recovery of the wrist-watch was effected. The briefcase and the wrist-
      watch were duly identified by Shanti Devi (PW 7) as possessions of the
      deceased.


   5. As per the report of Dr. Rajinder Rai (PW-5), who  had  conducted  the
      post-mortem of the deceased’s body, there were seven injuries found on
      the body, and, in his opinion, death was due to shock and  haemorrhage
      as a result of multiple injuries which were ante mortem in nature  and
      sufficient to cause death might have been committed by a Kirpan.


   6. The investigation was completed and the challan was duly presented  in
      court. The case was duly committed to the Court of Sessions vide order
      dated May 8, 1997 and charge under Section 302  of  the  Indian  Penal
      Code was framed against Sanjay and under Section 302 read with Section
      34 and Section 392 read with Sections 395 and 397 of the Indian  Penal
      Code, against the two accused wherein  they  pleaded  not  guilty  and
      sought for a trial. At this point, it is pertinent to mention that the
      trial of accused Badal was conducted separately  as  he  was  arrested
      later. In the course of the trial, twentythree witnesses were examined
      by the prosecution to prove its case. The statement of  the  appellant
      Dhan Raj was recorded under  Section  313  of  the  Code  of  Criminal
      Procedure, wherein he has pleaded that he has been falsely  implicated
      and  that  the  Sub–Inspector  has  fabricated  a  false  recovery  in
      collusion with one Rohtas @ Maharaja who  was  also  arrested  in  the
      matter. The case  of  the  prosecution  was  based  on  circumstantial
      evidence and the trial court after hearing the parties vide  judgement
      dated September 25, 1999 convicted and sentenced  the  accused  Sanjay
      and Dhan Raj ordering imprisonment for life and a fine of Rs.  2,000/-
      under Section 302 read with Section 341 of the Indian Penal Code along
      with rigorous imprisonment for eight years and a fine of  Rs.  1,000/-
      each under Section 392 read with Section 397 of the Indian Penal  Code
      and the sentences to run concurrently. Vide  judgment  dated  February
      18, 2009, the trial court acquitted the accused Badal.


   7. As the accused Badal was tried separately and  was  acquitted  in  the
      trial, we find it pertinent to discuss the same briefly. A case  under
      Section 302 read with Section 34 and Section 392  read  with  Sections
      395 and 397 was made against accused Badal and  the  other  co-accused
      and they were charge-sheeted by an order dated June 4, 1997. Badal was
      arrested (as stated in the order of the Trial Court dated February 18,
      2009) on February 20, 2007 and then his trial began with  the  earlier
      witnesses in the trial of  Dhan  Raj  and  Badal  being  recalled  and
      recorded against the accused Badal. He was examined under Section  313
      of Cr.P.C.  wherein he pleaded not guilty  and  claimed  that  he  was
      falsely implicated and that he never made  any   disclosure  statement
      and no recovery was effected from him.


   8.  In the said trial, the findings of the court were that  the  deceased
      was murdered in Bizidpur by several knife blows on his person while on
      his way to Kheri Jat. That evidence of PW1  to  PW7  recorded  in  the
      earlier trial did not amount to material evidence against the accused.
      The statement of Shanti Devi being PW7 regarding the  wrist  watch  of
      the deceased that the wrist watch recovered from  Badal  is  the  same
      that belonged to the deceased as the initials ‘VPS’  were  written  on
      the same, does not inspire confidence; there is  no  corroboration  of
      that fact and that it does not seem logical that a person  will  write
      something like this on his wrist watch. Further, it was noted that the
      prosecution failed to connect the accused with  the  recovery  of  the
      wrist watch in view of a decision of the High Court that there was  no
      sufficient motive. The Trial Court also pointed out that the  case  of
      the prosecution that the deceased was robbed and killed  on  the  road
      and his dead body was left on the road itself,  is  not  supported  by
      any evidence as the dead body was found in the  fields  and  that  the
      prosecution failed to answer  how the dead body reached there. It  was
      also noted that in the Kutcha area where the body was  found  no  foot
      prints of the accused were found  by the investigating agency.


   9. On the basis of the aforementioned findings, the Trial Court acquitted
      the accused appellant and concluded that charges against  the  accused
      were not proved beyond reasonable doubt as the case of the prosecution
      was highly doubtful and that  PW9  to  PW18,  who  were  the  material
      witnesses, did not give any material and conclusive  evidence  against
      the accused appellant.


  10. Aggrieved by the judgments of the trial court, accused appellant  Dhan
      Raj filed Criminal Appeal No. 496-DB of 1999 and the State of  Haryana
      filed Criminal Appeal No. 719-DB of 2009  before  the  High  Court  of
      Punjab and Haryana. The High Court in its impugned judgment held  that
      the case of the prosecution is based on  circumstantial  evidence  and
      that in the backdrop of the existing facts the chain of circumstantial
      evidence is complete and the involvement of the accused in robbery and
      commission of murder and robbery is established. Thus, the High  Court
      upheld the conviction of the appellant accused Dhan Raj and  convicted
      the appellant Badal on same grounds as those of Dhan Raj and Sanjay.


  11. Aggrieved, the appellants Dhan Raj and Badal filed the present appeals
      and the matter came before us.


7. The High Court convicted the accused appellants and Sanjay the other  co-
   accused on the basis of circumstantial evidence. However, we will confine
   ourselves only  to  the  circumstantial  evidence  produced  against  the
   accused appellants. The High Court relied firstly, on  the  statement  of
   the wife of the deceased Shanti Devi (PW7) wherein she  stated  that  the
   deceased wore a HMT wrist watch gifted to him at the time of his marriage
   by her parents and was carrying a  briefcase  with  the  sticker  of  the
   initials ‘VPS’ when he left his house on January 24, 1997  and  that  the
   same were missing when the body of the deceased was found in the  fields.
   Secondly, reliance was placed on the statement of the Raj Singh  (PW-15),
   the brother of the deceased, wherein he  has  stated  that  when  he  was
   visiting his brother the deceased on January 24, 1997 after the  deceased
   had left the three accused came to  the  deceased’s  house  and  enquired
   about him after disclosing their names. Thirdly, the High Court relied on
   disclosure statement of the co-accused Sanjay on the basis of  which  the
   blood stained clothes and the Kirpan were recovered  and  he  had  stated
   that Dhan Raj had taken away the briefcase and the wrist watch was  taken
   away by Badal. Fourthly,  the  High  Court  greatly  relied  on  the  two
   disclosure statements of the accused-appellants on the basis of which the
   recovery of the briefcase and wrist watch was made.


8. It was also noted by the High Court that the  blood  on  the  Kirpan  was
   human blood and that injuries inflicted on the deceased might  be  caused
   by a Kirpan as per the opinion of the Doctor.  While  commenting  on  the
   completeness of the circumstantial evidence it was further noted that the
   truthfulness of the testimony of Sanjay was proved on the  basis  of  the
   recovery of the car. Furthermore, it was noted that  the  fact  that  the
   deceased was carrying a briefcase and a wrist watch has been proved  with
   the statement of Shanti Devi. Thus,  on  the  basis  of  the  above,  the
   disclosure  statements  of  the  accused  appellant  and  the  disclosure
   statement of co-accused Sanjay were treated as clinching evidence proving
   their involvement by the High Court.


9.  In order to discuss the correctness of the order of conviction,  we  now
   proceed by considering the four grounds on which the High  Court  relied.
   We would first discuss the reliance placed on the evidence given  by  the
   co-accused Sanjay. The co-accused Sanjay in the course  of  investigation
   by his confessional statement being an  extra-judicial  confession  dated
   February 4, 1997 named the accused appellants as his accomplices  in  the
   murder and robbery and stated that Dhan Raj and Badal took the  briefcase
   and wrist watch of the deceased  respectively.  However,  in  an  earlier
   confessional statement dated January 25, 1997 made in  the  investigation
   in FIR No. 32 of 1997, Sanjay has named  Rohtas  as  his  accomplice  and
   stated that he only took the wrist watch and the brief case and from  the
   same confession the car of the deceased was recovered.   From  the  later
   confession, the Kirpan and blood stained clothes were recovered.


10.  It is well established that extra-judicial confession has been  treated
   by this Court as weak evidence in  the  absence  of  a  chain  of  cogent
   circumstances, for recording a conviction (See: Gopal Sah  vs.  State  of
   Bihar[1], and Pancho vs. State of Haryana[2]). It was held  in  Sahadevan
   and Anr. vs. State of Tamil Nadu[3] that if an extra judicial  confession
   suffers from material discrepancies or inherent improbabilities then this
   Court cannot base a conviction on the same.  In the present  case,  there
   is an apparent discrepancy in the confession statement of Sanjay and  the
   same is a glaring one as he has named different accomplices in  the  same
   crime  in  his  two  confessional   statements.   Furthermore,   Sanjay’s
   confessional statements only connect him to the car and the  Kirpan,  his
   statement that the accused  appellants  took  the  wrist  watch  and  the
   briefcase in the absence of other evidence except  the  recovery  of  the
   same does not establish that anything  beyond  the  fact  that  they  may
   possess stolen goods. In no manner does the later statement  of  the  co-
   accused supports  that  the  accused  appellants  were  involved  in  the
   commission of murder. In the case of Pancho vs. State of Haryana  (supra)
   this Court did not convict  the  accused  Pancho  on  the  basis  of  the
   confession statement of the co-accused in the  absence  of  other  cogent
   evidence, inspite of the  belated  recovery  of  the  alleged  weapon  of
   murder.


11. In view of the above, we are of the opinion that reliance on the  extra-
   judicial confession of the co-accused is misplaced.


12. Owing to the later confessional  statement  of  co-accused  Sanjay,  the
   accused appellants were arrested and subsequently on  the  basis  of  the
   disclosure statements of the  accused  appellants  and  corroboration  by
   Shanti Devi (PW 7), wrist-watch and the briefcase were  recovered.  Owing
   to the interdependence of the above evidence, we will  discuss  the  same
   together. The prosecution relied on  the  disclosure  statements  of  the
   accused appellants, the subsequent recovery of the  briefcase  and  wrist
   watch on the  basis  of  the  same  and  the  statement  of  Shanti  Devi
   corroborating that the recovered wrist watch and  briefcase  belonged  to
   the deceased. After considering the evidence on record, we find  that  no
   proper recovery has been made in the present case. The objects which were
   recovered were two common articles,  not holding much value and  it  does
   not seem rational that any accused would keep  such  incriminating  items
   connecting themselves to a crime with them in their house. Regarding  the
   recovery of the wrist watch from Badal and its identification  by  Shanti
   Devi PW7, we concur with the opinion of the  Trial  Court.  The  relevant
   extract of the judgment of the trial court is reproduced hereunder:






      “She further stated that she saw the wristwatch  Ex.P2 in  the  Police
      Station on 13.4.1997 and she identified the  watch  because  alphabets
      VPS were written  on the watch. This statement of PW7 does not inspire
      confidence because it does not appeal to the  common  sense  that  the
      wrist watch which was allegedly purchased in the year 1971 at the time
      of marriage of the deceased, could not carry the writing of  alphabets
      VPS thereon uptil 1997. Otherwise also, it  does  not  appeal  to  the
      common sense that a person would write any word on the wrist watch  to
      connect him in this fashion.  If these alphabets would  have  actually
      been written on the wrist  watch,  the  complainant  would  have  also
      mentioned this fact in the FIR because complainant was none  else  but
      the real brother of the deceased”










Furthermore, it appears to us that the recovery has  not  been  corroborated
by any proper independent evidence. Moreover, recovery of an object  is  not
a discovery of fact, as per the decision of this Court in Mano vs. State  of
Tamil Nadu[4]. Recovery must be of a fact which was relevant to  connect  it
with the commission  of crime. Therefore, even if the recovery of  goods  is
reliable then it does not indicate that  the  accused  appellants  committed
the murder and the only admissible fact which can be inferred is  that  they
are in possession of stolen goods.





13. We would refer to the decision of this  Court  in  Madhu  vs.  State  of
    Kerala[5] the facts of which are relevant in the present  case.  In  the
    said case, the body of the deceased was found near  her  home  with  her
    ornaments on her  person  missing.  On  the  basis  of  the  information
    furnished by the accused recovery of the said ornaments was  made.  This
    fact coupled with the sighting of the accused near the  place  of  crime
    was  the  basis  for  conviction.  However,  this  Court  reversed   the
    conviction on the ground that said recovery and sighting of the  accused
    near the deceased do not lead to the sole  conclusion  that  murder  was
    committed by the accused only. In State of  Rajasthan  vs.  Talevar  and
    Anr.[6]  also it was held that  where  the  only  evidence  against  the
    accused is recovery of stolen property, then although circumstances  may
    indicate that theft and murder might have been  committed  at  the  same
    time, it is not safe to draw an inference that the person in  possession
    of stolen property had committed murder. Also  the  recovery  of  looted
    articles at the instance of the accused could  not  be  relied  upon  in
    absence of any details as to when and where such recovery was  made  and
    in absence of any confession of commission of offence  by  the  accused.
    Besides,  the  seizure  of  the  goods  was  not  corroborated  by   any
    independent witness in the present case.


14. The  abovementioned  circumstantial  evidence  was  supported  with  the
   statement of Raj Singh (PW-15), that when he was visiting his brother the
   deceased on January 24, 1997 after  the  deceased  had  left,  the  three
   accused came to  the  deceased’s  house  and  enquired  about  him  after
   disclosing their names. Before discussing the admissibility of  the  said
   statement, we would refer to the  landmark  decision  of  this  Court  in
   Sharad  Birdichand  Sarda  vs.   State   of   Maharashtra[7]    regarding
   circumstantial evidence, where this Court held regarding the question  of
   the accused last seen with the deceased held that where it is natural for
   the deceased  to  be  with  the  accused  at  the  material  time,  other
   possibilities must be excluded before an adverse inference can be  drawn.
   It is evident from the  above  that  this  Court  refrains  from  drawing
   adverse inferences in a factual matrix which points out toward the  guilt
   of the accused. Thus, we will consider the statement of Raj Singh also in
   the same light. As per the statement of Raj Singh, the three accused  had
   come asking for the deceased but in the absence  of  other  corroborating
   evidence and independent evidence, it is not established that the accused
   appellants had abetted the co-accused Sanjay in  the  commission  of  the
   crime. Also it can be the defence’s case that the said statement has been
   added as an afterthought to strengthen the case of  the  prosecution.  We
   have found no material on record which corroborated the statement of  Raj
   Singh who is an  interested  witness.  Furthermore,  there  is  no  other
   evidence which indicates or  established  the  presence  of  the  accused
   appellants near the place of commission of crime. Also, as noted  by  the
   Trial Court in the trial of  Badal,  no  footprints  were  found  in  the
   surrounding Kutcha area where the body of the deceased was found.


15. We have noticed in the case of Madhu vs. State of Kerala  (supra)  facts
   of which were discussed earlier, that this Court inspite  of  the  factum
   that the accused were sighted close to the place of occurrence at  around
   the  time  of  occurrence  reversed  the  conviction  as  guilt  was  not
   established. In the present factual matrix,  it  is  only  an  interested
   witness stating that the accused had come asking for the  deceased.  This
   factum alone does not establish guilt as no other evidence is found  that
   they were near the Bizdipur area where the crime  was  committed  or  had
   visited the house of the deceased. For  establishing  the  guilt  on  the
   basis of circumstantial evidence, it is also to  be  taken  into  account
   that the chain of circumstantial evidence must be completed.  It  appears
   from the facts that the said chain of circumstantial evidence  cannot  be
   concluded in the manner  sought  to  be  done  by  the  prosecution.  The
   circumstances must be conclusive in nature. In the  instant  case,  after
   analysing the facts, it appears to us that there is  a  gap  between  the
   circumstances tried to be relied upon to hold the appellants  as  guilty.




16. Thus, we find many loopholes in the case of the prosecution and  grounds
   on which the High Court has convicted the accused  appellants.  We  would
   refer to the  decision  of  this  Court  in  Munish  Mubar  v.  State  of
   Haryana[8] wherein Dr. Justice Chauhan  has  very  aptly  and  succinctly
   stated the following:






      “The circumstantial evidence is a close companion of  factual  matrix,
      creating a fine network through which there can be no escape  for  the
      accused, primarily because the said facts, when taken as a  whole,  do
      not permit us to arrive at any other inference but one indicating  the
      guilt of the accused.”












A court has to examine the entire evidence in  its  entirety  especially  in
case of circumstantial evidence and ensure that  the  only  inference  drawn
from the evidence is the guilt of the accused. If more  than  one  inference
can be drawn then the accused must have the benefit of doubt as  it  is  not
the court’s job to assume and only when guilt  beyond  reasonable  doubt  is
proved then it is fair to record conviction.





17. In case of circumstantial evidence, each  circumstance  must  be  proved
   beyond reasonable doubt by independent evidence, and the circumstances so
   proved must form a complete chain without giving any chance of surmise or
   conjecture and must also be consistent with the  guilt  of  the  accused.
   None of the circumstances relied upon by the prosecution and accepted  by
   the High Court can be said to be the probability of the appellants’ guilt
   or involvement in the commission of the crime.






18. Therefore, for the reasons recorded hereinabove, the judgment and  order
   of the High Court is set aside; the appeals are allowed and  the  accused
   are acquitted forthwith. The appellant in Criminal Appeal No.703/2011  is
   already out on bail granted by this  Court;  the  appellant  in  Criminal
   Appeal No.1410/2010 is directed to be set at liberty  forthwith,  if  not
   required in any other case.

                                                           …………………………………..J.
                                            (Chandramauli Kr. Prasad)




                                                           …………………………………..J.
                                (Pinaki Chandra Ghose)
New Delhi;
May 9, 2014.











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[1]    (2008) 17 SCC 128
[2]    (2011) 10 SCC 165
[3]    (2012) 6 SCC 403
[4]    (2007) 13 SCC 795
[5]    (2012) 2 SCC 399
[6]    (2011) 11 SCC 666
[7]    (1984) 4 SCC 116
[8]    (2012) 10 SCC 464

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