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Thursday, December 22, 2016

We have examined the evidence laid in course of the arguments and have specifically considered the tests which have to be met by the prosecution to get success in the matter as laid down by this Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, wherein the tests have been specifically given and it appears to us after analyzing the facts and evidence in this case, that the prosecution has failed to pass such tests to bring home the guilt of the accused.


                        IN THE SUPREME COURT OF INDIA


                      CRIMINAL APPEAL NO.729   OF  2011

      H.D. SIKAND (D) THROUGH L.RS.           …      APPELLANT(S)



      AND ANR.                                     …  RESPONDENT(S)


                      CRIMINAL APPEAL NO.730   OF  2011



      LT. COL. S.J. CHAUDHARY                 …  RESPONDENT(S)

                               J U D G M E N T

      Pinaki Chandra Ghose, J.

   1. These appeals, by special leave, have been  filed  by  the  appellants
      challenging the judgment dated 15th May,  2009,  passed  by  the  High
      Court of Delhi at New Delhi in Criminal Appeal No.456 of 2008, whereby
      the High Court has set aside the judgment and order  dated  28.04.2008
      passed  by  the  Additional  Sessions  Judge,  Delhi,  and   acquitted
      Respondent No.2 of the charge of murder as also of the  charges  under
      Sections 3 & 4 of the Explosive Substances Act, 1908.

   2. The brief facts of the case are that Rani  Chaudhary  got  married  to
      Sqn. Ldr. Pritam Singh and out of the wedlock, she had two  daughters,
      namely, Mini and Maitri. After the death of her husband,  she  started
      living at D-5, South Extension, Part-I, New Delhi. Rani Chaudhary  had
      acquaintance with Lt. Col. S.J. Chaudhary, who was a divorcee at  that
      time. On 31.3.1971, Rani  Chaudhary  got  married  to  Lt.  Col.  S.J.
      Chaudhary and out of this wedlock one  daughter,  namely,  Sonali  was
      born on 24.08.1972. Their marriage could not continue harmoniously, so
      Rani Chaudhary started living separately  at  her  parents’  house  at
      Defence Colony, New Delhi, with effect from May, 1976.  Lt. Col.  S.J.
      Chaudhary continued to harass Rani Chaudhary. Rani Chaudhary  filed  a
      petition for divorce under Section 13(1)(1a)  of  the  Hindu  Marriage
      Act, in the Court of District Judge, Delhi, and on 6.12.1979,  an  ex-
      parte decree of divorce  was  granted  in  her  favour.  Accused  S.J.
      Chaudhary after coming to know about the  ex-parte  decree,  filed  an
      appeal before the Delhi High Court on 5.03.1980.  He  also  filed  two
      petitions in the Court of Additional District Judge,  Delhi,  one  for
      setting aside the ex-parte decree of divorce granted in favour of Rani
      Chaudhary and the other for restraining Rani Chaudhary  from  marrying
      Kishan Sikand. A restraint order was  passed  against  Rani  Chaudhary
      from marrying Kishan Sikand, pending decision of the divorce petition.
      On 6.1.1981, the Additional District Judge dismissed the petition  for
      setting aside the ex-parte decree of  divorce  and  also  vacated  the
      injunction order restraining Rani Chaudhary from remarriage.

   3. On 9.01.1981, accused S.J. Chaudhary got another order from  the  High
      Court of Delhi restraining Rani Chaudhary from remarriage till further
      orders. This order was vacated by Delhi High Court on 17.03.1981 while
      dismissing the appeal filed by accused S.J. Chaudhary against ex-parte
      decree of divorce granted in favour  of  Rani  Chaudhary.   Since  the
      accused S.J. Chaudhary had already gone in  appeal  before  the  Delhi
      High Court, against the order passed by the Additional District  Judge
      on 6.01.1981, the said appeal was  admitted  and  Rani  Chaudhary  was
      restrained from remarriage by the Delhi High Court.   While  disposing
      of the appeal on 14.09.1981, the Delhi High Court set aside the decree
      of divorce granted in  favour  of  Rani  Chaudhary  and  directed  the
      parties to appear before learned District Judge for fresh  hearing  of
      divorce petition. Rani Chaudhary filed an  appeal  before  this  Court
      against the order dated 14.09.1981 passed by  the  Delhi  High  Court.
      This Court set aside the order dated 14.09.1981 passed  by  the  Delhi
      High Court and restored the ex-parte  decree  of  divorce  granted  in
      favour of Rani Chaudhary. After the divorce litigations  between  Rani
      Chaudhary and accused S.J. Chaudhary came to  an  end,  Kishan  Sikand
      (deceased) proposed Rani Chaudhary for marriage to  which  she  agreed
      and they decided to  marry  after  the  divorce  is  granted  to  Rani
      Chaudhary and continued to live together  in  the  house  of  deceased
      Kishan Sikand at 98, Sundar Nagar, New Delhi. Accused  S.J.  Chaudhary
      started threatening Rani  Chaudhary  and  also  lodged  complaints  on
      29.9.1981 and 30.9.1981 at P.S. Lodhi Road and P.S. Hazrat  Nijamuddin
      against Kishan Sikand for illegally keeping his  wife  with  him.  But
      Rani Chaudhary gave in writing that she had taken divorce from accused
      S.J. Chaudhary and that she was staying there as a paying guest out of
      her own free will and Kishan Sikand had not  illegally  detained  her.
      The case of the prosecution is that the  accused S.J. Chaudhary having
      lost his endeavour to win back his wife Rani Chaudhary,  made  up  his
      mind to eliminate Kishan Sikand and so he procured the raw ingredients
      to manufacture a bobby trap bomb and using parts of a hand-grenade, he
      managed to manufacture a bobby trap bomb. This  bobby  trap  bomb  was
      converted into a parcel addressed to Kishan Sikand.  On 2.10.1982, the
      said parcel, containing the bomb, was kept at the staircase leading to
      the first floor of 98, Sundar Nagar, New Delhi, in  the  rear  portion
      whereof Kishan Sikand was residing along with Rani Chaudhary. When the
      said parcel bomb was opened by deceased Kishan  Sikand,  it  triggered
      off resulting in an explosion and his instantaneous death.

   4. Post-mortem was conducted on the dead body of Kishan Sikand. The cause
      of death was opined as a result of haemorrhage, shock and injuries  to
      vital organs caused by explosive device of  hand  grenade  which  were

   5. First Information Report (FIR)  was  registered  on  the  day  of  the
      incident itself on  2.10.1982.  The  investigation  of  the  case  was
      ultimately entrusted to the CBI on 19.3.1983. Accused  S.J.  Chaudhary
      was arrested  by  the  Central  Bureau  of  Investigation  (“CBI”)  on
      31.07.1983 during the course of investigation. Rani Chaudhary, who was
      at Sanawar (H.P.) on the day of the incident, returned to Delhi on the
      next day. Her statement under Section  161  Cr.P.C.  was  recorded  on
      3.10.1982,  wherein  she  informed  the  police  about  her  turbulent
      marriage with the appellant and the divorce.  She  also  informed  the
      police that accused S.J. Chaudhary had been extending threats  to  her
      to compel her to return to him and that he had even  been  threatening
      Kishan Sikand. Apart from other persons whose statements were recorded
      during investigation, the statement  of  one  Suresh  Gopal,  a  close
      friend of the deceased Kishan Sikand and Rani Chaudhary  was  recorded
      on 5.10.1982. Although the accused S.J. Chaudhary was a  suspect  from
      the very beginning but nothing  incriminating  against  him  could  be
      gathered by the police before CBI had taken over. In support of  their
      case, the CBI examined 76 witnesses and 8 witnesses were  examined  on
      behalf of the defence. Thereafter arguments were  heard  and  judgment
      reserved.  On  28.04.2008,  the  Additional  Sessions  Judge,   Delhi,
      delivered the judgment convicting accused S.J.  Chaudhary  (Respondent
      No.2 herein) under Section 302 of the  Indian  Penal  Code  and  under
      Sections 3 and 4 of the Explosive Substances Act, 1908, and sentencing
      him to life imprisonment along with a fine of Rs.5,000/-  for  offence
      under Section 302 IPC and to rigorous imprisonment for 10  years  each
      under Sections 3 and 4 of the Explosive Substances Act, 1908.

   6. Being aggrieved by the judgment dated  28.04.2008  of  the  Additional
      Sessions Judge, Delhi, Respondent No.2 filed  criminal  appeal  before
      the Delhi High Court on  the  ground  that  he  had  inter  alia  been
      convicted only on the basis of circumstantial evidence  and  therefore
      he was entitled to the benefit of doubt. Shri H.D. Sikand,  father  of
      the deceased Kishan Sikand, filed an application  for  intervening  in
      the said criminal appeal. The application for intervention was allowed
      and H.D. Sikand was granted permission to intervene in the matter  but
      on 12.03.2009,  the  intervenor  Shri  H.D.  Sikand  passed  away.  On
      15.05.2009, the Delhi High Court, after hearing  the  parties  allowed
      the criminal appeal filed by Respondent No.2, set aside  the  judgment
      and order passed  by  the  Additional  Sessions  Judge  and  acquitted
      Respondent No.2 (Lt. Col. S.J. Chaudhary)  of  the  charge  of  having
      committed murder as also the charges under  Sections  3  &  4  of  the
      Explosive Substances Act,  1908.  Hence,  these  appeals,  by  special
      leave, have been filed against the acquittal of Respondent  No.2  (Lt.
      Col. S.J. Chaudhary).

   7. We have heard the learned counsel appearing on behalf of  the  parties
      and perused the judgment passed by the High Court as also the judgment
      passed by the Trial Court. Learned counsel appearing on behalf of  the
      appellants in Criminal Appeal No.729 of 2011 submitted that after  the
      explosion took place in the house of Kishan Sikand, the  Delhi  Police
      took over the investigation but except recording some  statements  and
      formal actions, did not do any worthwhile investigation. This is clear
      from the following:

     a)  On 3.10.1982 Shri P.P. Koahar (PW-72) recorded  the  statement  of
        Rani Chaudhary, Vijay Ram and Flaurance Homs and  others.  He  also
        recorded statement of Suresh Gopal on 5.10.1982. He  also  recorded
        some statements on other days.

     b)  On 4.10.1982, search was conducted of the premises i.e. 98, Sunder
        Nagar  and  the  Investigating  Officer  took  possession  of   the
        documents on 6.10.1982. He did not even prepare proper Memo of  the
        said documents. All those documents are missing; and the  documents
        said to have been recovered by PW-72 on 4.10.1982 are not the  part
        of  charge-sheet.  During  the  cross-examination,   R.P.   Kochar,
        Investigating Officer himself admitted that from the very beginning
        he suspected the accused as he stated:  “till the investigation was
        me, I could not collect clinching evidence to arrest the  accused”,
        “from the very beginning I suspected him to be the  perpetrator  of

   8. Learned counsel further submitted that even after  the  Court’s  order
      and search warrant issued for search of the house of Respondent  No.2,
      only  search  was  conducted  by  the  police   and   thereafter   the
      Investigating Officer did not do anything except  collecting  75  type
      prints of different typewriters or specimens, which had  no  relevance
      with the crime. The police did it only to pretend that they were doing
      some investigation. According to the Investigating Officer himself, it
      came to his knowledge that a parcel was spotted on  the  staircase  on
      25.09.1982 for the first time, but even after such  fact came  to  his
      notice, he did not make any investigation and did not even record  the
      statement of the person giving such information.  When  there  was  no
      proper investigation by the Crime Branch  and  the  criminal  remained
      undetected, on the request of the appellant, the case was  transferred
      to the CBI and only thereafter the real investigation started  and  in
      this manner the precious time for collection of evidence was lost.

   9. Learned counsel further submitted that there were  strained  relations
      between Rani Chaudhary and accused Respondent No.2  and  despite  best
      efforts to maintain her matrimonial ties with the accused  Respondent,
      the accused Respondent continued to ill treat her  and  even  tortured
      her both mentally and physically, forcing her to shift to Delhi.   She
      was beaten to the extent of causing  fractures  of  three  bones.  The
      accused Respondent threatened the deceased  and  Rani  Chaudhary  with
      dire consequences to the extent of bodily harming and  killing  Kishan
      Sikand on a number of occasions. The accused Respondent had the grudge
      and motive to kill Kishan Sikand. Learned counsel submitted  that  the
      marriage between  Rani  and  accused  Respondent  could  not  continue
      harmoniously and accused Respondent used  to  physically  assault  and
      mentally torture Rani and  on  account  of  incessant  harassment  and
      physical torture by accused Respondent, Rani lodged a  complaint  with
      the concerned Army Authorities in February/March 1979.  On  coming  to
      know about this complaint, the accused Respondent came to  Delhi  from
      Bangalore where he was posted and Rani was mercilessly beaten and  she
      received injuries including fractures of 3 ribs on the left side. Rani
      lodged a  report  at  the  Police  Station,  Defence  Colony  and  was
      medically examined at AIIMS. Mrs. Devender Kaur, mother-in-law of Rani
      (by the first marriage) also lodged a report at the Police Station and
      complained about the conduct of accused Respondent. It is also  stated
      that the accused went to the house of Rani and confined her inside the
      house but she escaped by jumping out of the window, in the process she
      sustained sprain in  her  ankle.  Thereafter,  Rani  filed  a  divorce
      petition on the ground of cruelty and torture. The Trial Court  passed
      a decree of divorce which was set aside by the  High  Court  and  upon
      filing special leave petition, this Court o n 24.08.1982 restored  the
      decree of divorce passed by the Trial Court. In the meantime, Rani and
      Kishan Sikand became good friends and Rani started living with  Kishan
      Sikand at 98, Sunder Nagar, New Delhi.   There  was  an  understanding
      between them that  they  would  get  married  after  the  divorce  was
      finalized. The accused- Respondent threatened Rani not  to  live  with
      Kishan Sikand and in case she did not move out of the house of  Kishan
      Sikand, he would kill her and Kishan Sikand. The  accused-  Respondent
      also told H.D. Sikand, father of Kishan Sikand, to throw out Rani from
      his house, otherwise he would cripple Kishan Sikand  by  breaking  his
      bones. The accused- Respondent also visited H.D. Sikand in the  office
      and  he  was  very  annoyed  at  that  time.  Accused-Respondent  also
      telephoned Kishan Sikand and told him that if he did not turn Rani out
      of his house within 24 hours, he would kill him. This was intimated by
      Kishan Sikand to Rani (PW-1), Sudhir Khanna (PW-10), H.D. Sikand  (PW-
      19), M.M. Thapar (PW-37), Leelu Mool Chandani (PW-39) and Gajbir Singh
      (PW-44). The accused-Respondent gave Rani four options:

            a) to live together

            b) to separate peacefully

            c) to separate in an ugly manner

            d) to create total chaos

      The accused-Respondent threatened that if she did not agree for one of
      the first three options then chaos would follow. This was recorded  in
      tape recorder. The accused-Respondent lodged a false report in  Police
      Station, Nizamuddin alleging that Rani has been forcibly  confined  by
      Kishan Sikand at his house. Om Sagar, Station House  Officer  went  to
      the house of Kishan Sikand, met Rani and inquired from her if she  was
      forcibly detained to which Rani replied in the negative and  gave  her
      statement in writing.

  10. Learned counsel for the appellants further submitted that the  finding
      recorded by the Trial Court  regarding  ‘threat  to  deceased  by  the
      accused-respondent’ and ‘motive’  are as follows:

           Threat to deceased by the accused-Respondent

           “I have no reason to disbelieve the witnesses about the  threats
           given to Rani Chaudhary and deceased Sikand.”


           “Believing the deposition of Ms. Rani Chaudhary, H.D. Sikand and
           others witnesses, I find that accused had  motive  to  kill  not
           only Rani Chaudhary but also deceased Kishan Sikand so that they
           don’t live together against the wishes of the accused.”

      Learned counsel submitted that the  High  Court  while  accepting  the
      aforesaid findings on the second aspect i.e.  Motive,  has  considered
      three letters dated 2.10.1980, 16.11.1980 and 3.03.1982 out of context
      inasmuch as the said letters cannot be read in isolation, particularly
      in the factual background of the relations  and  the  conduct  of  the
      respondent and his behavior with Rani Chaudhary and Kishan Sikand.

  11. Learned counsel for the appellants also submitted that the High  Court
      disbelieved the evidence of Mohd. Shafi (PW-7) who  saw  the  accused-
      Respondent coming out of the house of the deceased and  going  towards
      Sunder Nagar market on the reasoning that Mohd. Shafi who had gone  to
      first floor of 98, Sunder Nagar, to give keys ought  to  have  noticed
      the existence of parcel, which he did not  mention.   Learned  counsel
      submitted  that  outsiders  normally  ignore  anything  lying  on  the
      staircase or other place of house inasmuch as they are  not  concerned
      with the same, particularly when a number of persons are living in the
      same house.  Learned counsel submitted that the High  Court  has  also
      disbelieved the testimony of this witness, firstly, on account of  the
      delay and secondly, that he was the employee of Sikand Motors and that
      neither Suresh Gopal (PW-3) nor Mohd. Shafi (PW-7) had mentioned  each
      other’s presence on the spot in their 161 Cr.P.C. statements  recorded
      by the Police. It was submitted that no question was  put  as  to  why
      Mohd. Shafi did not inform the Police about the visit of  the  accused
      to the house of Sikand on 25th September, 1982 or that whether he  had
      noticed the presence of parcel or not.

  12. Learned counsel appearing on behalf of Respondent No.2 submitted  that
      the Trial Court has convicted  Respondent  No.2  for  the  offence  of
      murder only on the basis of circumstantial evidence and the conviction
      has been overturned by a Division Bench of the Delhi High Court. It is
      further  submitted  that  the  circumstances  relied   upon   by   the
      prosecution  have  not  been   satisfactorily   established    against
      Respondent No.2 and the circumstances said to  have  been  established
      against Respondent No.2 do  not  provide  a  complete  chain  that  is
      required to prove his guilt. The standard of proof required to convict
      a person in a case  of  circumstantial  evidence,  has  not  been  met
      either. It is submitted by the learned counsel that the  law  requires
      that the circumstances relied upon in support of the  conviction  must
      be fully established, and that the  chain  of  evidence  furnished  by
      those circumstances must be so  complete,  so  as  not  to  leave  any
      reasonable doubt for a conclusion, consistent with  the  innocence  of
      the accused. The circumstances from which the conclusion of  guilt  is
      to be drawn, must not only be fully established,  but  also  be  of  a
      conclusive nature and consistent only with the hypothesis of the guilt
      of the accused and they must not be capable of being explained by  way
      of any other hypothesis except the guilt of the accused, and when  all
      the said circumstances are collectively considered, the same must lead
      only to the irresistible conclusion that  the  accused  alone  is  the
      perpetrator of the crime in question, which is not  the  case  in  the
      present appeals, the learned counsel submitted.

  13. Learned counsel for Respondent No.2 next submitted that the contention
      of the appellant that  the  Crime  Branch  of  Delhi  Police  did  not
      investigate  the  case  properly  and  with  promptitude  due  to  the
      influence of Lt. Col. Chaudhary (Respondent  No.2)  whose  father  was
      former I.G. in Delhi Police, is an ex  facie  baseless  and  unfounded
      allegation. The father of Respondent No.2 had passed away long back in
      1956 and the I.O. Inspector Kochar had not even joined Delhi Police by
      then and it is a farfetched allegation that he had been influenced  by
      the association of Lt. Col. Chaudhary. In any  case,  the  prosecution
      has not put any suggestion to Inspector Kochar in his  testimony  that
      he wrongly recorded the statement of any  witness  or  that  Lt.  Col.
      Chaudhary had influenced him in any manner.

  14. Learned  counsel  for  Respondent  No.2  further  contended  that  the
      prosecution’s whole case is not based on any concrete evidence or eye-
      witness testimony but on presumption and imputation of motive  to  Lt.
      Col. Chaudhary that he had  an  animus  towards  the  deceased  Kishan
      Sikand due to his ex-wife Rani Chaudhary living  with  Kishan  Sikand.
      This cannot be true for the following reasons:

        a)  First, if the reason of anyone’s ex-spouse living with/marrying
           another person led to people killing each other, then  it  would
           have already resulted in an unholy mess of biblical proportions.

        b)  Second, all the three protagonists namely Lt.  Col.  Chaudhary,
           Rani Chaudhary and Kishan  Sikand  had  experience  of  previous
           marriages – the marriage between Lt.  Col.  Chaudhary  and  Rani
           Chaudhary was second marriage for both as he was a divorcee  and
           she was a  widow  and  out  of  previous  wedlock  she  had  two
           daughters and out of the wedlock with Lt.  Col.  Chaudhary  they
           had one daughter; and Kishan Sikand  was  also  a  divorcee  and
           father to a son. So, divorce and living  apart  was  not  a  new
           concept to any of the three parties so as to  motivate  them  to
           kill someone.

        c)  Third, due to the differences between husband  and  wife,  Rani
           Chaudhary left Bangalore where Lt. Col. Chaudhary was posted and
           came to Delhi and started living separately  from  1976  itself,
           and subsequently she started living with Kishan  Sikand  at  his
           house. Other than his concern for the future and  upbringing  of
           the three young daughters, Lt. Col. Chaudhary was  already  used
           to a life without Rani Chaudhary who had been living apart  from
           him since 1976. Therefore, there was no sudden trigger  to  plan
           in such detail as alleged and kill Kishan Sikand.

        d)  Fourth, to suggest that merely because Lt. Col.  Chaudhary  and
           Rani Chaudhary went through divorce proceedings and some  things
           were said during that time, he would decide all of  a sudden  in
           1982 to kill Kishan Sikand, is too far-fetched and  conjectural,
           and certainly not on which a conviction under Section 302 can be

        e)  Fifth, letters dated 22.10.80, 16.11.80 and 03.03.82 marked  as
           Ex.PW-1/FF, Ex.PW-1/GG and Ex.PW-1/NN respectively, addressed by
           Lt. Col. Chaudhary to Rani Chaudhary show that he had reconciled
           to a life without her but was concerned for the well  being  and
           future of the three daughters.

  15. It is further submitted by the learned  counsel  for  Respondent  No.2
      that the testimony of PW-7 Mohd.  Shafi  is  false,  manufactured  and
      cannot be relied upon, and that he was a planted witness is clear from
      the following facts:

        a) First, it is most pertinent to point out that if  the  testimony
           of the said sole so-called eye-witness in the whole case PW-7 is
           taken at its face value even then it is nowhere stated  that  he
           saw Lt. Col. Chaudhary with any parcel let alone a  parcel  bomb
           or that he saw Lt. Col. Chaudhary  delivering  anything  to  the
           deceased’s house; he has merely stated  that  he  saw  Lt.  Col.
           Chaudhary coming out of  the  gate  of  the  deceased  house  on
           25.09.1982. There is neither any eye-witness nor any evidence to
           show  that  the  so  called  booby  trap  parcel  was   actually
           delivered, or that it was delivered on this day, or that anybody
           received the said parcel, or that anybody saw Lt. Col. Chaudhary
           delivering anything  let  alone  a  booby  trap  parcel  to  the
           deceased’s residence.

        b) Second, there was no eye-witness available as long as the  Delhi
           Police investigated the case. However, as soon as the  CBI  took
           over the case, two Link Witnesses, magically appear – PW-7 Mohd.
           Shafi and PW-9 Jug  Lal.  Even  Jug  Lal  did  not  support  the
           prosecution story in Court. He was declared hostile.

        c)  Third,  PW-7  Mohd.  Shafi  comes  into  the  picture  only  on
           16.07.1983 – after nine and half months of the incident  –  when
           his 161 Cr.P.C. statement was recorded by the CBI.  PW-7  coming
           up with  a  belated  statement  casts  serious   doubts  on  his

           Learned counsel argued that delay in recording the statements of
      the eye-witnesses casts a serious doubt about they being eye-witnesses
      to the occurrence. In support of this submission,  he  relies  upon  a
      recent judgment of this Court in Shahid Khan v.  State  of  Rajasthan,
      (2016) 4 SCC 96, wherein this Court reversed the conviction for murder
      as statements of eye-witnesses were recorded after 3 days of  incident
      and no explanation regarding the same was given.

        d) Fourth, in the same  judgment  i.e.  Shahid  Khan  v.  State  of
           Rajasthan (supra), this Court  further  held  that  evidence  of
           witnesses became unreliable when there was no  corroboration  of
           their evidence, and a further reason for reversal of  conviction
           for murder was that there was no information available as to how
           police came to know that witnesses saw the occurrence  and  also
           as the case  against  accused  persons  was  not  proved  beyond
           reasonable doubt.

        e) Fifth, PW-7 Mohd. Shafi admits that he had never seen  Lt.  Col.
           Chaudhary there ever before. It is highly doubtful that he would
           be particular in noticing that Lt. Col. Chaudhary was coming out
           of the gate of 98, Sunder Nagar, or that he would be able to say
           after 10 months that he saw Lt. Col. Chaudhary.

        f) Sixth, PW-7 is an old and trusted employee of the  Sikands  with
           over 30 years of service with them and  is,  therefore,  clearly
           not an independent and reliable witness and is the  only  person
           deposing to have seen Lt. Col.  Chaudhary  near  the  main  gate
           coming out of 98, Sunder Ngar on 25.09.1982.

        g) Seventh, PW-7 has stated that subsequent to spotting of Lt. Col.
           Chaudhary, he parked the car, locked it  and  went  upstairs  to
           deliver the keys of the car to Kishan Sikand and  even  at  that
           time he did not see any parcel lying in  the  staircase.  PW-7’s
           testimony itself rules out that Lt. Col.  Chaudhary  had  placed
           any parcel on that day as alleged by the prosecution.

        h) Eighth, the claim to recognize a person in the headlights  of  a
           moving car, when not specifically looking out for him, would  be
           a very tall  and  motivated  claim,  not  free  from  suspicion,
           especially when sunset occurred at 6.16 p.m. on 25th  September,
           1982 (recorded data available with Meteorological Bureau) and it
           gets pitch-dark by 6.45 p.m.  Also  there  was  no  streetlights
           outside 98, Sunder Nagar in 1982.

        i) Ninth, during his cross-examination, except for the  exact  date
           and time of seeing Lt. Col. Chaudhary outside 98, Sunder  Nagar,
           PW-7 Mohd. Shafi could not remember any other  date  in  1982  –
           neither his son’s date of marriage, nor where  his  son  worked,
           nor his own birthday, nor any important  religious  or  personal

           The learned counsel, therefore, argued that the entire statement
      of PW-7 is tailor-made to suit the prosecution story only to create  a
      link between the planting of a parcel and  Lt.  Col.  Chaudhary.  Such
      evidence is to be treated with great suspicion by law and a  delay  of
      just  a  few  days,  in  such  circumstances,  has  been  held  to  be

  16.  Learned  counsel  for  Respondent  No.2  lastly  submitted  that  the
      prosecution has failed to prove their case beyond reasonable doubt for
      the following reasons:

     i) Motive to Kill:  It is evident from Respondent No.2’s letters  that
        he had reconciled to the inevitability of divorce. The  High  Court
        has come to the correct finding that while there is  scope  for  an
        argument  that inasmuch as there is evidence wherefrom a motive can
        be attributed to Respondent No.2;  there is an equal scope  for  an
        argument that there is evidence on  record  wherefrom  said  motive
        gets negated. To  conclude,  the  only  admissible  evidence  which
        remains against Respondent No.2 is that of motive, which itself  is
        negated from the readings of the said letters.  But  motive,  being
        presumptive evidence, is a weak evidence and by itself cannot  form
        a chain of  circumstances  so  complete  that  the  only  inference
        possible is the guilt of Respondent No.2, ruling out his innocence.

    ii) Access to Hand Grenade: It is submitted that Respondent No.2 was an
        Army Officer and there is no evidence on record that he  respondent
        would have procured or have  access  to  a  POK  hand  grenades  as
        categorically proved by the testimony of PW-45, DW-3 and DW-6. Also
        the Respondent was evacuated from  the  battlefield  in  a  wounded
        condition after he was relieved of all  the  arms  and  ammunition.
        Moreover, the Respondent belonged to four horse  regiment  who  are
        not specialized in anatomy of arms and ammunition  especially  hand
        grenade. Further, there was no evidence to the effect that any  POK
        hand grenade was stolen at any time. Also it would be  preposterous
        to suggest that the  Respondent  had  stolen  a  Pakistani  grenade
        during the Indo-Pak in 1971, so that he may  use  it  for  personal
        objective in future and that he actually used it a decade later  in

   iii)  Presence of Respondent at Deceased’s house: The whereabouts of the
        Respondent on 25.09.1982 is on record from about 1 pm till about 11
        pm and at no stage he went anywhere in the vicinity of  98,  Sunder
        Nagar. The Respondent played golf from 1.30 pm till 5.30  pm,  then
        refreshed himself, changed and had refreshments. PW-20 has  deposed
        before the Court in his cross-examination that the  Respondent  was
        with  him  from  7.45  pm  on  25.09.1982  till  8.15  pm.  It   is
        corroborated by DW-2 Maj. A.K. Nehra that the Respondent arrived at
        Friends Colony at about 8.15 pm accompanied  by  short  fat  person
        signifying PW-20. Thereafter, DW-2 dropped  the  Respondent  at  4,
        Friends Colony, where  a  party  was  going  on.  The  Respondent’s
        presence is further confirmed till 11 pm by DW-1 Mr. Rattan  Sehgal
        at a party in Friends Colony.

    iv)  Disclosure Statement: The “voluntary” disclosure  statement  dated
        05.08.1993 was coerced after five  days  in  CBI  custody  and  the
        Respondent has not signed the disclosure statement. The witness  to
        such disclosure statement has also not signed the statement of  the
        Respondent. One of the two independent witnesses has been given  up
        by the prosecution. The Respondent had not pointed to any  specific
        typewriter and the typewriter machine alleged to  be  used  by  the
        Respondent for typing the address was not even sealed on  the  same
        day, but much later i.e. on 01.10.1983.

     v) Typewriter used for typing address on the Parcel              PW-75
        has led no evidence of any special knowledge gained by  him  except
        for a three days stint with Godrej, a  company  which  manufactures
        typewriters. Further the High Court has in  details  discussed  the
        criteria for comparison of typewriter evidence,  whereby  the  High
        Court came to the conclusion that the expert in comparing  the  two
        address as alleged typed from the same machine has not followed the
        reasoning and procedure which an expert necessarily needs to follow
        as per Fryes test. The seized specimens taken from Janta Commercial
        were not sealed. Further, PW-75 has admitted  that  the  questioned
        document does not contain clear impressions due to  mutilation  and
        that  having  admitted  thirteen  dissimilarities   during   cross-
        examination, an attempt was made  by  PW-75  to  explain  the  said
        thirteen dissimilarities, and therefore, no reliance can be  placed
        on his report and testimony.

  17. Learned counsel  for  Respondent  No.2  submitted  that  the  rule  of
      evidence  setting  out  the   threshold   of   conviction   based   on
      circumstantial evidence emanating  from the decision  in  the  English
      case of R. v. Hodge (168 ER 1163 (1838), and subsequently followed  by
      all the common law countries, is that before  a  person  is  convicted
      entirely on circumstantial evidence,  the Court must be satisfied  not
      only that those circumstances are consistent with his having committed
      the act, but also that the facts are such, so as  to  be  inconsistent
      with any other rational conclusion other than the one that the accused
      is  the guilty person, is not met by any stretch of imagination in the
      above-mentioned factual  and  legal  scenario,  and  therefore,  these
      appeals deserve to be dismissed.

  18. After hearing the learned counsel for  the  parties  and  after  going
      through the  records  of  this  matter,  including  the  evidence,  as
      analyzed by the High Court as well as the Trial Court, it appears that
      the  case  in  hand  is  totally  dependent  upon  the  circumstantial
      evidence. We  have  examined  the  evidence  laid  in  course  of  the
      arguments and have specifically considered the tests which have to  be
      met by the prosecution to get success in the matter as  laid  down  by
      this Court in Sharad  Birdhichand  Sarda  Vs.  State  of  Maharashtra,
      (1984) 4 SCC 116, wherein the tests have been specifically  given  and
      it appears to us after analyzing the facts and evidence in this  case,
      that the prosecution has failed to pass such tests to bring  home  the
      guilt of the accused.  Accordingly, in our opinion, the High Court has
      correctly come to the conclusion after analyzing  the  facts  and  the
      evidence. In our opinion, the arguments which have been put forward in
      the matter by Mr. D.N. Ray, learned counsel  appearing  on  behalf  of
      respondent  No.2,  are  much  more  acceptable  in   the   facts   and
      circumstances of this case. The findings recorded by  the  High  Court
      are plausible, logical and persuasive, reached  by  the  materials  on
      record and  command  for  affirmation.   Thus,  we  do  not  have  any
      hesitation to hold that the High  Court  has  correctly  come  to  the
      conclusions with the reasons given therefor.  Accordingly, we  do  not
      find any merit in these appeals which are hereby dismissed.

                                       (Pinaki Chandra  Ghose)

                                       (Amitava Roy)
      New Delhi;
      December 15, 2016.

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