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Monday, October 6, 2014

Circumstantial Evidence - Proof of the same - lower court convicted the accused - Apex court held that It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries.=CRIMINAL APPEAL NO. 632 OF 2011 |VIJAY THAKUR |.....APPELLANT(S) | |VERSUS | | |STATE OF HIMACHAL PRADESH |.....RESPONDENT(S) | = 2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41937

 Circumstantial Evidence - Proof of the same - lower court convicted the accused - Apex court held that It is to be emphasized at this stage that except the  so-called  recoveries, there is no other  circumstances  worth  the  name  which  has  been  proved against these two appellants.  It is a case of blind murder.  There  are  no eyewitnesses.  Conviction is based on the circumstantial evidence.  In  such a case, complete chain of events has to  be  established  pointing  out  the
culpability of the accused person.  The chain should be such that  no  other conclusion, except the guilt of the accused person, is  discernible  without any doubt.  Insofar as these two  appellants  are  concerned,  there  is  no circumstance attributed except that they  were  with  Rajinder  Thakur  till Sainj and the alleged disclosure leading to recoveries, which appears to  be doubtful.  When we look into all these facts in entirety  in  the  aforesaid context, we find that not  only  the  chain  of  events  is  incomplete,  it becomes somewhat difficult to convict the appellant only  on  the  basis  of the aforesaid recoveries.=


These  two  appeals  arise  out  of  concurrent  order  of
conviction passed by the courts below convicting these two appellants,  viz.
Vijay Thakur and Surjeet Khachi, along with third accused, namely,  Rajinder
Thakur under Section 302 read with Section 34  of  the  Indian  Penal  Code,
1860 and sentencing all of them to undergo imprisonment for life and  pay  a
fine of  ?5,000, etc.  The appellants are also  convicted  for  the  offence
under Section 392 read with Section 34 IPC and are  given  the  sentence  of
five years and fine of ?2,000 each with a default clause  in  case  fine  is
not paid.=
It is to be emphasized at this stage that except the  so-called  recoveries,
there is no other  circumstances  worth  the  name  which  has  been  proved
against these two appellants.  It is a case of blind murder.  There  are  no
eyewitnesses.  Conviction is based on the circumstantial evidence.  In  such
a case, complete chain of events has to  be  established  pointing  out  the
culpability of the accused person.  The chain should be such that  no  other
conclusion, except the guilt of the accused person, is  discernible  without
any doubt.  Insofar as these two  appellants  are  concerned,  there  is  no
circumstance attributed except that they  were  with  Rajinder  Thakur  till
Sainj and the alleged disclosure leading to recoveries, which appears to  be
doubtful.  When we look into all these facts in entirety  in  the  aforesaid
context, we find that not  only  the  chain  of  events  is  incomplete,  it
becomes somewhat difficult to convict the appellant only  on  the  basis  of
the aforesaid recoveries.

2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41937
                                                             NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 632 OF 2011


|VIJAY THAKUR                             |.....APPELLANT(S)              |
|VERSUS                                   |                               |
|STATE OF HIMACHAL PRADESH                |.....RESPONDENT(S)             |


                                   W I T H
                       CRIMINAL APPEAL NO. 633 OF 2011

                               J U D G M E N T


A.K. SIKRI, J.
                  These  two  appeals  arise  out  of  concurrent  order  of
conviction passed by the courts below convicting these two appellants,  viz.
Vijay Thakur and Surjeet Khachi, along with third accused, namely,  Rajinder
Thakur under Section 302 read with Section 34  of  the  Indian  Penal  Code,
1860 and sentencing all of them to undergo imprisonment for life and  pay  a
fine of  ?5,000, etc.  The appellants are also  convicted  for  the  offence
under Section 392 read with Section 34 IPC and are  given  the  sentence  of
five years and fine of ?2,000 each with a default clause  in  case  fine  is
not paid.

As correctness of the narration of this prosecution  case  recorded  by  the
High Court is not in dispute,  we  may  state  the  prosecution  version  by
borrowing from the said judgment.  It is as under:

(a)   Deceased Santosh Kumar, son of Bir Chand (PW-1),  was  employed  as  a
driver by Ganga Ram (PW-2) to drive his Maruti van, which he  had  purchased
only few days prior to the date of occurrence, i.e. August  21,  2004.   The
van had yet not been registered  with  the  Registration  Authority,  though
application for registration had been moved.  On August 21,  2004,  all  the
three appellants were looking for a taxi as they wanted to  escort  a  truck
carrying timber.  They got lift in a truck at Narkanda for  going  to  Sainj
to hire a taxi.  The truck by which they went to Sainj was being  driven  by
Rajesh Kumar (PW-30).  It was carrying merchandise belonging to  PW-30.   At
Sainj, the appellants hired Maruti van of PW-2 on  which  the  deceased  had
been engaged as a driver.  The van started from Sainj for Narkanda  late  in
the evening.  On the way, deceased Dharam Pal,  an  electrician  working  at
Kingar, was approached by the deceased to accompany  him.   Dharam  Pal  too
boarded the van.   Thereafter,  the  deceased,  along  with  his  van,  went
missing.  PW-2, who is the owner of the van, started searching for him.

(b)   On August 25, 2004, PW-2 met PW-1  at  Luhri  and  asked  him  if  the
deceased had visited his house.  PW-1 replied him  in  the  negative.   PW-1
and PW-2 started searching for the deceased  and  the  van.   A  report  was
lodged on August 24, 2004, with the Police Station, Kumarsain by PW-2  about
deceased having gone missing along with Maruti van.  An entry  was  made  in
the Rojnamcha and the same is exhibited as Ex. PW-47/A.

(c)   On August 26, 2004, one Shano Devi (PW-18) spotted two dead bodies  in
Thachru Nallah, which falls by the side of  the  road  connecting  to  Sainj
with  Narkanda.   She  informed  her  co-villagers.  Police   was   informed
telephonically.  Entry regarding telephonic  information  was  made  in  the
Daily Diary and marked as Exhibit PW-37/A.  ASI Sada Nand  (PW-49)  went  to
the spot accompanied by PW-1, PW-2 and one Talru  Ram  (PW-3),  who  is  the
father of deceased Dharam Pal.  Dead bodies were identified to be  those  of
Santosh Kumar and Dharam Pal.  Both of them had been  strangulated,  one  by
means of a string of jacket's hood and another by means of  a  handkerchief.
Also, there were injuries on their heads.  A danda (Exhibit  P-1)  was  also
found lying on the spot.

(d)   PW-1 made a statement under  Section  154  of  the  Code  of  Criminal
Procedure, 1973 (for short. 'Cr.P.C.')  to  PW-49,  which  is  exhibited  as
Ex.PW-49/A.  It was sent to the  Police  Station  for  registration  of  the
case, where FIR (Exhibit PW-48/A) was recorded by ASI Rattan Chand  (PW-48).
 Inquest was conducted by PW-49 and Forms (Exhibits  PW-1/A,  1/B  and  1/C)
were  filled  in.   Dead  bodies  were  sent  to  Community  Health  Centre,
Kumarsain,  where  post-mortem  examination  was  conducted  by  a  team  of
doctors, consisting of Dr. Ramesh Chand Guleria (PW-32), Dr. N.K. Mehta (PW-
33) and Dr. Sumeet Attri (PW-43).  The doctors found injuries on  the  heads
of both the dead bodies and also that the necks of  the  deceased  had  been
tightened with a string of jacket's hood and a handkerchief.  They gave  the
opinion that the case of death, in both the cases,  was  head  injuries  and
asphyxia caused by strangulation.   Post-mortem  reports  are  exhibited  as
Exhibits PW-32/B and PW-32/D.

(e)   On August 27, 2004, the Maruti van in question was found abandoned  at
Saproon on  Solan-Subathu  road.   It  was  taken  into  possession  by  ASI
Sukhdarshan Singh (PW-36), In-charge of Police Post Saproon.  Later on,  the
van was handed over to SI Rupinder Singh (PW-50), who  was  associated  with
the investigation of the case.

(f)   When no perceptible progress was achieved in the investigation of  the
case, a special team of police was constituted by Superintendent of  Police,
Shimla, vide order Exhibit -52/A.   Vijay  Kumar  (PW-50)  was  one  of  the
members of that team, who  arrested  the  present  appellants  and  Rajinder
Thakur on February 20, 2005.

(g)   During the course of their interrogation,  the  accused  persons  made
disclosure statements.  The appellant  Surjeet  Khachi,  in  his  disclosure
statement marked as Exhibit PW-11/B, stated that he had  thrown  one  Chunni
and one ribbon, which were there in  the  van,  at  a  place  called  Nanni,
falling in the area of Matiana.  On the basis of this disclosure  statement,
Chunni (Exhibit P-2) and ribbon (Exhibit P-3) were recovered and taken  into
possession vide Memo (Exhibit PW-2/B).  PW-2 identified the said Chunni  and
the ribbon to be the same which he had kept in  the  Maruti  van.    Surjeet
Khachi also made a disclosure that wrist watch of Rajinder Thakur  had  been
pledged with a shopkeeper of Kuthar in Solan District for payment  of  price
of 1½ litres of petrol, which had been purchased from him, when the fuel  in
the Maruti Van  completely  ran  dry.   On  the  basis  of  this  disclosure
statement, wrist watch (Exhibit P-4) was recovered from one Gian Chand  (PW-
16) of village Kuthar.  House  of  Rajinder  Thakur  was  searched  and  two
vouchers (Exhibits PW-54/O and PW-54/P), with regard to  purchase  of  wrist
watch, were recovered vide memo Exhibit PW-24/A.

(h)   Appellant Vijay Thakur made a disclosure statement, which led  to  the
recovery of Jacket (Exhibit P-5) from his house.   The  string  of  Jacket's
hood was found missing and it appeared that it was the same string by  which
the neck of deceased Dharam Pal was found tightened.

(i)   During the course of investigation, it also came  to  light  that  the
appellants and Rajinder Thakur went with the Maruti van to some remote  area
of Patiala District in Punjab and tried to sell it, but they could not  find
any buyer.  Then they came back and on  the  way,  when  the  fuel  ran  dry
completely, they purchased 1½ litres of petrol from PW-16.  After  the  fuel
was consumed, they abandoned the vehicle at Saproon on  Solan-Subathu  road.
Rajinder Thakur then tried to sell  the  Maruti  van  to  a  transporter  of
Dhalli, namely, Vikas Verma (PW-8).  PW-8 introduced Rajinder Thakur to  one
Sneh Bhagat (PW-42), who accompanied by Rajinder Thakur and Dharmender  (PW-
10), a driver, went to Saproon.   But  by  that  time  the  Maruti  van  had
already been seized by the Police under section 102 of Cr.P.C. and taken  to
Police Post Saproon.

After the completion of investigation, charge sheet was filed,  whereby  all
the three accused  persons  were  challaned.   Case  was  committed  by  the
concerned Judicial Magistrate to the Sessions  Court  after  complying  with
the requisite procedural formalities.  Charges were framed by  the  Sessions
Court and the matter went  for  trial  as  all  the  three  accused  persons
pleaded 'Not  Guilty'.   Prosecution  examined  various  witnesses  and  the
deposition  of  some  of  the  material  witnesses  examined.    After   the
conclusion of prosecution evidence, the statements of  the  accused  persons
under Section 313 of Cr.P.C. was recorded.  The appellants  denied  all  the
incriminating circumstances/material put to  them  and  depositions  of  the
various prosecution witnesses as well as documents placed  on  record.   The
accused persons specifically denied that they had hired  Maruti  van,  which
was driven by the deceased or that they have travelled by  that  van  on  or
about August 21, 2012.  They also denied having taken lift in the  truck  of
PW-30 from Narkanda to Sainj.  Similarly, there was a denial  by  them  that
they took the van to an area in Patiala District, Punjab or to Kuthar or  to
Solan District in Himachal Pradesh or attempted to sell the van.  They  also
pleaded  that  no  such  disclosure  statements  leading  to   the   alleged
discovered were made by them.

After recording his analysis of the evidence on  record,  in  light  of  the
arguments submitted by the counsel for the prosecution as  well  as  defence
counsel, the learned trial court came to  the  conclusion  that  prosecution
was able to successfully prove the guilt of all the three  accused  persons.
It is the accepted position that there are no eye-witnesses in  the  present
case and the case of  prosecution  is  completely  based  on  circumstantial
evidence. The Sessions Court arrived at the finding that  the  circumstances
which were proved by the prosecution made a complete chain, thereby  leading
to the hypothesis that all the persons were guilty. On  the  basis  of  this
conviction, sentences followed, as aforesaid.

All the three accused persons challenged the verdict of the trial  court  by
preferring common appeal, which  has  been  dismissed  by  the  High  Court,
affirming  the  decision  of  the  Sessions  Court.   The  High  Court   has
recapitulated  seven  circumstances  which,   according  to  it,  formed   a
complete chain leading to the irresistible conclusion of the  guilt  of  the
appellants in murdering  the  two  deceased  persons  and  robbing  deceased
Santosh Kumar of the  Maruti van which he was driving.  These  circumstances
are mentioned in para 15 of the impugned judgment, which read as under:
“a)   On 21st August, 2004, appellants took lift in a truck which was  being
driven by PW-30 Rajesh Kumar  and  in  which  PW-39  Raj  Kumar  Tayagi  was
present in the capacity of owner of the goods, which were being  carried  in
that truck, and they (appellants) de-boarded the truck at Sainj.

b)    Deceased Santosh Kumar had two passengers, who  wanted  to  travel  to
village Dalash by his taxi, but in the meanwhile, he was approached by  some
other passengers for being taken to Narkanda and,  so,  he  approached  PW-7
Sanjay Kumar, another taxi driver, to carry the two passengers to Dalash.

c)    Appellant Rajinder made an attempt to  sell  a  Maruti  Van  to  PW-44
Kartar Singh resident of a village in Patiala District.

d)    Appellants ran out of  fuel  at  Kuthar  in  Solan  District  on  24th
August, 2004 and they purchased 1½ litres of petrol from PW-16  Gian  Chand,
a shopkeeper and being short of money, they pledged the wrist-watch Ext.  P4
of appellant Rajinder Thakur with said Gian Chand (PW16).

e)    On 27th August, 2004, appellant Rajinder Thakur  went  to  PW-8  Vikas
Verma and asked him to help him sell the Maruti Van, who (the witness)  then
introduced him to PW-42 Sneh Bhagat and Sneh Bhagat  accompanied  by  driver
PW-10 Dharmender Singh and appellant Rajinder went  to  Saproon,  where  the
van was stated to be parked, but the van was not there as the same had  been
sized by Solan Police, before that, under Section 102 Cr.P.C.

f)    Appellant Surjeet Khachi made a disclosure statement, leading  to  the
discovery of Chunni Ext. P-2 and ribbon P-3, which PW-2 Ganga Ram  had  kept
in the Maruti Van.

g)    Appellant Vijay Kumar made a  disclosure  statement,  leading  to  the
discovery of Jacket Ext. P-5, the hood string of which was missing.”


Thereafter, the judgment of the High Court proceeds  to  dilate  upon  these
circumstances explaining as to how they stand proved  and  form  a  complete
chain of events leading to the conviction of the accused persons.

These two appeals are filed by two  out  of  the  three  convicted  persons.
Third accused, namely, Rajinder Thakur, has accepted  the  judgment  of  the
High Court.    Therefore,  our  discussion  in  the  instant  appeals  shall
confine to the alleged role and  culpability  of  only  the  two  appellants
before us.

We have  already  recapitulated  above  the  circumstances  which  are  held
against all the three accused persons, including  the  two  appellants,  who
are convicted.   We  may,  therefore,  in  the  first  instance,  start  our
discussion on the presumption that  all  these  circumstances  stand  proved
(though we may mention at this stage itself that  learned  counsel  for  the
appellants had argued that there is no sufficient evidence to implicate  the
two appellants insofar as  those  circumstances  are  concerned.   We  shall
advert to that aspect at a later stage).

Circumstance mentioned at (a) above  would  show  that  the  appellants  had
taken lift in a truck from Narkanda and they alighted  from  this  truck  at
Sainj.  As per circumstance (b) above, at  Sainj,  deceased   Santosh  Kumar
was present with a van of which he was the driver employed by PW-2.  He  had
two passengers who wanted to travel to  village  Dalash.   However,  he  was
approached  by  'some  other  passengers'  for  being  taken  to   Narkanda.
Therefore, Santosh Kumar approached PW-7 Sanjay Kumar and requested  him  to
carry the said two passengers to  Dalash,  meaning  thereby,  he  had  taken
'some other passengers'  to  Narkanda.   PW-7  has  not  seen  those  'other
passengers'.  The number of 'other passengers' is also not  given.   In  his
statement, he does not say that he had  seen  the  appellants  and  Rajinder
Thakur, whom  deceased  Santosh  Kumar  was  going  to  carry  in  his  van.
Therefore, at this stage, insofar  as  the  appellants  are  concerned,  the
chain has broken.  It may be that the chain continues  insofar  as  Rajinder
Thakur is concerned,  having  regard  to  circumstance  (c),  (d)  and  (e),
inasmuch as, those circumstances are attributed to accused  Rajinder  Thakur
who was found in possession of the Maruti Van which was being driven by  the
deceased and he was making attempts to sell the said van.  Likewise,  it  is
Rajinder Thakur who had approached PW-8 Vikas Verma and asked  him  to  help
him sell the said van and Vikas had introduced him  to  PW-42  Sneh  Bhagat.
Again, it is Rajinder Thakur who had gone  with  the  said  van  to  Saproon
where the van was stated to be parked.  Thus, it is clear that when  attempt
was made by Rajinder Thakur to sell the said Maruti Van  and  he  was  going
from place to place for this purpose, the two appellants were not with  him.
 No doubt, reading of circumstance (d) above gives an  impression  that  all
the three accused persons were there at Kuthar in Solan District  when  they
ran out of fuel and they had purchased 1½ litres of petrol from  PW-16  Gian
Chand.  However, on reading the statement of PW-16,  it  becomes  abundantly
clear that he has stated that “last  year  one  boy  came  to  my  shop  and
demanded petrol from me.  I had provided him petrol about  one  and  a  half
litres which was taken from Dinesh Kumar.  That boy had  pledged  his  wrist
watch with me”.  Therefore, it is clear that even PW-16 has  mentioned  that
one person had gone to him to  buy  the  petrol.   Circumstance  (d)  above,
therefore, has to be confined to one person and in the chain of  events,  he
appears to be Rajinder Thakur.  Thereafter, as  per  circumstances  (f)  and
(g), these two appellants had made a disclosure statement which has  led  to
some recoveries.  We shall deal with that aspect at the  appropriate  stage.
What we are emphasising at this stage is that if  the  disclosure  statement
is ignored for the time being, the only circumstance against the  appellants
is that they had travelled with  Rajinder Thakur up to  Sainj.   Thereafter,
there is nothing against these two appellants.  Insofar  as  the  appellants
are concerned, the link is broken at that stage itself.  It is not known  as
to whether they were together or not and there is no credible  evidence  (or
for that matter, any evidence at all) to show that they were  with  Rajinder
Thakur.  On the contrary, as per  the  evidence  coming  on  record,  it  is
Rajinder Thakur alone who is found in possession of  the  Maruti  Van  which
was being driven by the deceased and it is he who was  trying  to  sell  the
said vehicle.

Keeping  in  mind  the  aforesaid  position,  we  now  discuss  the  alleged
disclosure statements made by the two appellants.  As per  the  prosecution,
appellant  Surjeet  Khachi  made  a  disclosure  statement  leading  to  the
recovery of Chunni (Exhibit P-2) and Ribbon (Ex. P-3), which PW-2  had  kept
in the Maruti Van. Alleged disclosure of this kind of material  is  somewhat
intriguing. It  is  not  the  weapon  of  crime.   Chunni  and  Ribbon  were
allegedly kept in the Maruti Van as it was a new vehicle.  As per PW-2  (who
is the owner of the vehicle),  one  Chunni  and  Ribbon  were  kept  in  the
vehicle and appellant Surjeet Khachi had led the Police to where  they  were
concealed and, accordingly, they were recovered  from  the  said  place  and
taken into possession.  One fails to understand as  to  what  would  be  the
purpose of removing  the  said  Chunni  and  Ribbon  from  the  vehicle  and
throwing them at some place.  It is well known that  in  this  part  of  the
country, Chunni and Ribbon (as sacred objects representing blessings of  Maa
Durga) are tied, particularly when  the  vehicle  is  new.   But  they  were
neither used for the commission of crime, nor any purpose could be  achieved
in removing them from the van.  Further, as per the prosecution case,  after
these were recovered, they were taken into possession vide Memo Exhibit  PW-
2/B.  A reading of Exhibit PW-2/B would show that they were  recovered  from
Nallah from the opposite side of the road.  This recovery was  alleged  made
on 26.02.2005, that is more than six months after the incident,  which  took
place on August 21, 2004. If one  presumes  that  after  removing  the  said
Chunni and Ribbon, the accused had thrown it at  the  aforesaid  place,  one
fails to understand as to how the said two things were lying intact at  that
open place for so many months.  It seems that this recovery  is  shown  just
to rope in the appellant Surjeet Khachi as well.

RE. - PETROL
            To  the  same  effect  are  our  observations  qua  the  alleged
recovery of wrist watch of Rajinder Thakur.   It  is  shown  that  appellant
Surjeet Khachi had made a  disclosure  statement  wrist  watch  of  Rajinder
Thakur had been pledged with a shopkeeper of Kuthar in  Solan  District  for
payment of price of 1½ litres of petrol, which had been purchased from  him,
when the fuel in the Maruti Van completely ran dry.  Curiously, as  per  the
prosecution's own version, based on the testimony of PW-6 Gian  Chand,  from
whom the petrol was purchased, the said van was  being  driven  by  Rajinder
Thakur, who had purchased petrol from him.  He has very clearly stated  that
it was only Rajinder Thakur in the said van  and  did  not  name  these  two
appellants.  This aspect has been mentioned  in  circumstance  (d)  and  the
evidence in this respect has already been analysed above to  show  that  the
said evidence concerns only to  Rajinder  Thakur.   From  this,  it  can  be
clearly discerned that even  this  disclosure  statement  is  attributed  to
appellant Surjeet Khachi just to rope him as an accused  person.  Otherwise,
for the reasons stated above, this disclosure  statement  does  not  inspire
any confidence.  The  High  Court  has  failed  to  notice  these  important
aspects which make the alleged disclosure statements suspectful.

Coming to the alleged disclosure of the appellant Vijay Kumar,  a  discovery
of jacket (Exhibit P-5) is attributed to him.  This recovery was  sought  to
be proved from the statement of PW-23, who has  said  that  appellant  Vijay
Kumar had made a disclosure statement that he had kept  the  jacket  in  his
house and the statement was recorded as Exhibit  PW-3/C.   However,  in  his
cross-examination,  he  has  admitted  that  document  Exhibit  PW-3/C   was
prepared 10-15 minutes prior to the recovery  of  clothes  and  he  was  not
there when recovery was effected.  He had seen the clothes  when  they  were
with the Police.  Therefore, recovery of jacket on the disclosure  statement
made by accused Vijay Kumar also becomes doubtful.  In  such  circumstances,
it would be too risky to convict these two appellants solely  on  the  basis
of alleged disclosure, which recovery is  also  shrouded  with  elements  of
doubts.  As already discussed above, there is no  other  circumstance  which
relate these two appellants to the commission of the offence.

It is to be emphasized at this stage that except the  so-called  recoveries,
there is no other  circumstances  worth  the  name  which  has  been  proved
against these two appellants.  It is a case of blind murder.  There  are  no
eyewitnesses.  Conviction is based on the circumstantial evidence.  In  such
a case, complete chain of events has to  be  established  pointing  out  the
culpability of the accused person.  The chain should be such that  no  other
conclusion, except the guilt of the accused person, is  discernible  without
any doubt.  Insofar as these two  appellants  are  concerned,  there  is  no
circumstance attributed except that they  were  with  Rajinder  Thakur  till
Sainj and the alleged disclosure leading to recoveries, which appears to  be
doubtful.  When we look into all these facts in entirety  in  the  aforesaid
context, we find that not  only  the  chain  of  events  is  incomplete,  it
becomes somewhat difficult to convict the appellant only  on  the  basis  of
the aforesaid recoveries.

      In Mani v. State of Tamil Nadu, (2008) 1  SCR  228,  this  Court  made
following pertinent observation on this very aspect:
“21.  The discovery is a weak kind of evidence and cannot be  wholly  relied
upon on and conviction in such a serious matter cannot  be  based  upon  the
discovery.  Once the discovery  fails,  there  would  be  literally  nothing
which would support the prosecution case....”

      There is a  reiteration  of  the  same  sentiment  in  Manthuri  Laxmi
Narsaiah v. State of Andhra Pradesh, (2011) 14  SCC  117  in  the  following
manner:
“6.  It is by now well settled that in a  case  relating  to  circumstantial
evidence the chain of circumstances has to be spelt out by  the  prosecution
and if even one link in the  chain  is  broken  the  accused  must  get  the
benefit thereof.  We are of the opinion that the present is in fact  a  case
of no evidence.”

      Likewise, in Mustkeem alias Sirajudeen v. State of  Rajasthan,  (2011)
11 SCC 724, this Court observed as under:
“24.  In a most celebrated case of this Court, Sharad Birdhichand  Sarda  v.
State of  Maharashtra,  (1984)  4  SCC  116,  in  para  153,  some  cardinal
principles regarding the appreciation of circumstantial evidence  have  been
postulated.  Whenever the case  is  based  on  circumstantial  evidence  the
following  features  are  required  to  be  complied  with.   It  would   be
beneficial to repeat the same salient  features  once  again  which  are  as
under: (SCC p.185)

“(i) The circumstances from which the conclusion of guilt  is  to  be  drawn
must or should be and not merely 'may be' fully established;

(ii) The facts so established should be consistent only with the  hypothesis
of the guilt of the accused, that is to say, they should not be  explainable
on any other hypothesis except that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and tendency;

(iv) They should exclude every possible hypothesis  except  the  one  to  be
proved; and

(v) There must be a chain of evidence  so  complete  as  not  to  leave  any
reasonable ground 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.”


25.  With regard to Section 27 of the Act, what is  important  is  discovery
of the material object at the disclosure of the accused but such  disclosure
alone would not automatically lead to the conclusion that  the  offence  was
also committed by the accused.  In fact,  thereafter,  burden  lies  on  the
prosecution to establish a close link  between  discovery  of  the  material
object and its use in the commission of the  offence.   What  is  admissible
under Section 27 of the Act is the information leading to discovery and  not
any opinion formed on it by the prosecution.”

                 It is settled  position  of  law  that  suspicion,  however
strong, cannot take the character of proof.

We, therefore, have no hesitation in  allowing  these  appeals  and  setting
aside the conviction and sentence of the two appellants  under  Section  302
read with Section 34 of the Indian Penal Code, 1860.  We order  accordingly.
 The appellants are directed to be released  from  jail  forthwith,  if  not
required in any other case.



                             .............................................J.
                                                            (J. CHELAMESWAR)


                             .............................................J.
                                                                (A.K. SIKRI)

NEW DELHI;
SEPTEMBER 19, 2014.

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