REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.729 OF 2011
H.D. SIKAND (D) THROUGH L.RS. … APPELLANT(S)
:Versus:
CENTRAL BUREAU OF INVESTIGATION
AND ANR. … RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.730 OF 2011
CENTRAL BUREAU OF INVESTIGATION … APPELLANT(S)
:Versus:
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
fatal.
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
crime”.
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.”
Motive
“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
based.
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
truthfulness.
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
occasion.
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
unreliable.
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
1982.
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.
….....….……………………J
(Pinaki Chandra Ghose)
….....…..…………………..J
(Amitava Roy)
New Delhi;
December 15, 2016.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.729 OF 2011
H.D. SIKAND (D) THROUGH L.RS. … APPELLANT(S)
:Versus:
CENTRAL BUREAU OF INVESTIGATION
AND ANR. … RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.730 OF 2011
CENTRAL BUREAU OF INVESTIGATION … APPELLANT(S)
:Versus:
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
fatal.
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
crime”.
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.”
Motive
“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
based.
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
truthfulness.
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
occasion.
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
unreliable.
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
1982.
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.
….....….……………………J
(Pinaki Chandra Ghose)
….....…..…………………..J
(Amitava Roy)
New Delhi;
December 15, 2016.
