minal Appeal No 123 of 1985
From the Judgment and Order dated 121184 of the Delhi High Court in State Criminal Appeal No 71 of 1978
RK Garg and Rajendra Prasad Singh for the Appellant
233 NN Goswamy and Ashok Bhan for the Respondent
ANAND J
This appeal by special leave is directed against the judgment of the High Court of Delhi dated 12th of November 1984 setting aside an order of the Additional Sessions Judge New Delhi acquitting the appellant of an offence under Section 302203 IPC
The prosecution case is that on the fateful night of 25th26th July 1976 the appellant and his wife Usha Jain went to sleep in the back verandah of their house situated at P 5 Green Park Extension New Delhi while his brother MP Jain alongwith his wife Sharda and children went to sleep separately in their bed room in the same house
Police Control Room was informed over the telephone by Sulekh Chand Jain at 455 AM that an incident had taken place at P 5 Green Park Extension and on receiving the telephone message SI Mauji Ram made a record of it in the daily diary and passed on the information to the duty officer at police station Hauz Khas
ASI Maha Singh was deputed to proceed to the spot for investigation of the case
After reaching the spot the said ASI Maha Singh informed the police station on telephone that a murder had taken place
The information so provided was recorded by ASI Mangal Sen in the daily diary Whereupon SHO Harmit Singh immediately left for the spot alongwith SI Dalip Singh SI Moti Singh Constable Bhawani Dutt and Constable Randhir Singh
The police party arrived at the spot at about 535 am and took charge of the investigation
The appellant was present near the dead body which had been covered by a Dhoti and on interrogation the appellant informed the police party that his brother and family had retired for the night in their bed room at about 1000 pm and he alongwith his wife had slept in the back verandah
Before going to sleep he had locked the collapsable door of the back verandah
The wife of the appellant was wearing a gold chain on her neck eartops in her ears and golden bangles on her wrists besides glass bangles
At about 130 am the appellant felt thirsty and asked his wife to give him water and after some time when he felt chilly he went inside the room
He slept in the room while his wife kept sleeping outside
At about 345 am the appellant got up to urinate and when he went outside the room he found that his wife was lying on the cot with her face upwards but her clothes were in a loose condition and he was almost naked upto the thighs
On going closer to 234 the cot he found her tongue protruding and on touching her he found her dead
He noticed some scratches on her face and neck and also discovered that the golden chain which was on her neck and golden bangles were missing from her body
According to the appellant his wife had been murdered by somebody by strangulation while committing the theft of the golden chain and the bangles
He started screaming and his brother the brother s wife as well as some neighbours came there
Since his telephone was found to be out of order police was informed at his request by Sulekh Chand another neighbour from his telephone
The parents of the deceased living in Sonepat were also conveyed the tragic news on telephone through their neighbours
The statement of the appellant which revealed a case of lurking house trespass with a view to commit offence of theft and murder was recorded as exhibit P5 and a case under Section 460 IPC was registered
The statement of the appellant exhibit P5 was despatched by SHO Harmit Singh to the police station with his endorsement for registration of a case under Section 460 IPC
Formal FIR was registered by ASI Mangal Sen at the police station and the same was received back by the SHO at the house of the appellant at about 645 am
The crime team as also the dog squad were summoned
Both the dogs of the dog squad were first let loose to pick up the smell and according to the ASI Ranbir Singh in charge of the dog squad the dogs after picking up the smell from the lock lying in the corner of the back courtyard and from the spot went to the room where the appellant was sitting and each of the dogs pointed towards him by turn
That raised a suspicion against the appellant
According to the SHO he then asked the appellant to remove his shirt and found that the appellant had injuries in the nature of bruises etc
on the front part of his body on the chest as well as on his back
Since the appellant had told the police that the bangles of his wife were identical to the bangles of Sharda the wife of his brother MP Jain who also is the sister of the deceased the SHO took into possession four bangles from Sharda also for comparing the same in case the stolen property was recovered
The appellant was thereafter taken for further interrogation to the police station
Before proceeding to the police station the SHO had effected recoveries of various articles including some hair lying near the dead body on the cot
The appellant had produced the key at the asking of the SHO which purported to be the key of the lock which had been found lying in the back court yard and the same was taken into possession
The lock was also taken into possession but it did not appear to have been 235 broken or tampered with
The recovery of the key was witnessed amongst others by Kuldip Kaul PWl who was present in the crowd outside the home of the appellant
The inquest proceedings were conducted by SI Moti Singh and the body was thereafter sent for postmortem examination
At the police station during interrogation the appellants was placed under arrest and in the presence of SI Dalip Singh PW6 Kuldip Kaul PWl and Harnaik Singh PW2 he made a disclosure statement exhibit PC to the effect that he had concealed the golden chain and the bangles in his bathroom and in pursuance of the disclosure statement the appellant led the police party to the bathroom of his house and after removing the cover from the drain hole took out the golden chain and the bangles and handed the same over to SHO Harmit Singh in presence of the witnesses
Recovery memo EXPF was prepared and the golden chain and the bangles after being duly weighed were sealed separately and the seal was handed over to Kuldip Kaul PW1
The appellant was sent for medical examination after memo of his personal search EXPE was prepared
Dr Dharam Pal PW15 found as many 18 injuries on the person of the appellant consisting of bruises and abrasions on the nose chest arm shoulder and on the umbilical region
The injuries were stated to have been caused by blunt weapon
The postmortem on the dead body of Usha Jain was conducted on 2771976 at 900 am by Dr Bharat Singh PW 4 and according to the postmortem report EXPL all the injuries found on the person of the deceased were ante mortem and the same were possible by throttling the deceased and that the death of Usha Jain was caused by asphyxia resulting from throttling
The deceased was carrying 7th month pregnancy at the time of her death
After the disclosure statement was made by the appellant leading to the recovery of the ornaments and after noticing injuries on his person the case which was originally registered under Section 460 IPC was converted into one under Section 302203 IPC
The SHO during the course of investigation also took sample hair of the appellant and sent the same alongwith the hair recovered from the cot of the deceased to the Central Forensic Science Laboratory
The nail clippings of the deceased were also sent for analysis to CFSL
Site plan EXPO was also prepared during the investigation
After completion of the investigation challan was filed against the appellant and he was sent up for trial for offences under Section 302203 IPC in the court of Additional Sessions Judge New Delhi
236 There being no eye witness of the occurrence the prosecution sought to establish the case against the appellant on the basis of circumstantial evidence
The circumstances set up by the prosecution against the appel lant during the trial were i information to the police at 455 AM given by a neighbour and not the appellant ii that information not specifically giving out that a murder had taken place and simply intimating happening of an incident iii The accused having slept alone at night in the verandah with the deceased after having locked the collapsable door of that verandah from inside and that lock having been found in the corner of the back courtyard in the morning without being tampered with iv The deceased and accused were last seen together v The dogs of the Dog Squad having pointed out the accused after picking up scent from that lock vi The ornaments which were stated to be on the person of the deceased while she was sleeping and which were found missing when she was discovered dead having been recovered from the drain hole of the bath room attached to the bed room of the accused in consequence of and in pursuance of a disclousre statement made by the accused vii injuries found on the person of the accused in the nature of abrasions contusions and lastly viii the accused having given false information to the police by means of hi s statement Ext
P5 The learned Sessions Judge carefully analysed each of the circumstance and finally observed On a resume of the analysis of prosecution evidence and 237 on a very careful appraisal of all the facts and circumstances set up by the prosecution I am of my earnestly considered view that the prosecution in this case has entirely failed to prove any of the circumstances set up against the accused much less to establish the chain of circumstances so as to bring out a nexus between the crime and the accused
 The appellant was therefore acquitted of the offences under Section 302203 IPC
On an appeal by the State a division bench of the High Court reversed the order of acquittal of the appellant
The High Court held that the circumstances formed a chain and sequences so complete by themselves that one was left in no manner of doubt that the appellant and the appellant alone had committed the crime
The appeal was accepted and the order of acquittal was set aside
The appellant was sentenced to undergo rigorous imprisonment for life under Section 302 IPC and also to undergo rigorous imprisonment for a period of one year under Section 203 IPC
Both the sentences were directed to run concurrently
Appearing for the appellant Mr RK Garg the learned senior counsel submitted that the approach of the High Court was totally erroneous and that a well considered and well reasoned judgment of the Trial Court was upset by the High Court by drawing inferences which were not available from the record and by ignoring material discrepancies and infirmities in the prosecution evidence which not only did not establish various circumstances but which also showed that the chain of circumstantial evidence was wholly incomplete
Learned counsel for the appellant submitted that the appellant had been roped in on the basis of misguided suspicion and that the circumstances relied upon by the prosecution were not of any conclusive nature and they did not exclude the hypothesis other than that of the guilt of the appellant
It was emphasised that the inves tigating officer had created false clues and suppressed material which went against the prosecuting version and supported the defence version
He argued that the High Court should have drawn adverse inference against the prosecution for not producing the first informant and withholding the evidence of the father of the deceased
Mr NN Goswami learned senior counsel assisted by Mr Ashok 238 Bhan advocate on the other hand submitted that some of the circumstances like the pointing out of the appellant by the dogs of the Dog Squad after picking up the scent from the place of occurence the disclosure statement and the recovery of ornaments as a consequence thereof at the instance of appellant and the presence of injuries on the person of appellant were of such a conclusive and clinching nature that they left no doubt that the appellant had committed the crime
It was submitted that the appellant had made attempt to mislead the investigating officer by giving a false version with a view to screen himself
According to the learned counsel the established circumstance could only lead to the hypothesis consistent with the guilt of the appellant and not with his innocence
We shall now consider various circumstances with a view to determine whether the circumstances alleged against the appellant have been established and the chain of evidence is so complete as to lead to no other hypothesis except the one consistent with the guilt of the accused
There is no motive established in this case by the prosecution for the appellant to commit murder of his wife and the evidence of Tara Chand father of the deceased as welt as the sister of the deceased and the tenants living in the same house disclosed that the relations between the husband and wife were cordial
In a case based on circumstantial evidence motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case
The absence of motive however puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof Since the disclosure statement and the consequent recovery pursuant thereto of the ornaments belonging to the deceased has been considered to be one of the most important piece of circumstantial evidence in the case not only by the High Court but has also before us by the learned counsel appearing for the State we shall first consider that circumstance
This circumstance is indeed of such an incriminating nature that if found to have been established by reliable and trustworthy evidence it would go a long way to furnish proof of the guilt of the appellant and connect him with the crime and on the other hand if the evidence in support of that circumstance is found to be not reliable the entire chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution case as a whole
239 According to the prosecution after the appellant had been taken to the police station by the investigating officer he was interrogated interrogated after being placed under arrest
He voluntarily made a disclosure statement EXPC
The disclosure statement was recorded by the SHO and has been attested by Kuldip Kaul PW 1 SI Dalip Singh PW 6 and Harnaik Singh PW2
Pursuant to the disclosure statement the appellant is alleged to have led the police party to the recovery of the ornaments from a drain hole in his bathroom
The recovery memo EXPF was prepared at the spot and was attested by SI Dalip Singh PW 6 Kuldip Kaul PW 1 and Hirnaik Singh PW 2 besides the Investigating Officer
We shall therefore first analyse the evidence of the witnesses of the disclosure statement and the recovery memo
Inspector Harmit Singh PW 19 SHO while deposing about the disclosure statement and the consequent recovery of the ornaments at the pointing out by the appellant stated that he interrogated the appellant in presence of Dalip Singh Kuldip Kaul and Harnaik Singh PWs at the police station at about 145 pm and in their presence the appellant made the disclosure statement exhibit PC and then led the party to his house and pointing out the drain hole in the bath room the appellant took out from that drain hole three golden bangles and one golden chain which were weighed separately and while golden bangles were put in one packet the golden chain was put in another packet and the seal used to seal both the packets was handed over to Kuldip Kaul PWI
The recovery memo EXPF was prepared at the spot which was signed by the witnesses then and there at about 2 or 230 pm
In his cross examination the Investigating Officer denied the suggestion that the bangles and the chain were recovered from underneath a slab in the service lane in the presence of the appellant and Jagminder Dass Jain and a memo had been prepared which was signed by them
He also stated that he did not call any goldsmith to weigh the ornaments because he had taken with him the measure and the scale
He then asserted that Kuldip Kaul did not come back with me to the police station when I came back in the evening after recoveries of the ornaments etc
had been effected at the spot
I recorded statement of Kuldip Kaul at the spot after recoveries
That was a complete statement of his and I recorded only one statement of his on that day
Kuldip Kaul left from the spot and we were still there when he left Regarding Harnaik Singh PW2 the IO stated I had gone out to 240 look for another witness and I found at that time Harnaik Singh reversing his taxi in the compound of the police station and then I summoned him
He had told me that he had dropped a passenger and was taking out his taxi
I did not see passenger going inside
There are 6070 quarters at the back of the police station and that passengers might have gone to any of those quarters
The disclosure statement was made by the accused in his presence
I had read out the papers to Harnaik Singh before getting his signature
In fact it was written in his presence and whatever were dictated by the accused was within his healing
It is incorrect to suggest that disclosure statement was already written and I got signatures of Harnaik Singh without explaining to him the document and assuring him to sign on my trust
 The witness also asserted that he had seen Harnaik Singh for the first time only at about 2 or 230 pm outside the police station while reversing the taxi and did not know him from before
Let us now examine as to what the other witnesses have to say in this regard
Kuldip Kaul PW1 while admitting that he was present outside the house of the appellant in the morning at about 630 am when the police party had reached there and had offered himself to join the investigation went on to say that after the SHO had lifted the shirt of the appellant and found 15 20 marks of scratches on the chest of the appellant they all came to the police station along with the appellant
He added that while they were sitting at the police station Harnaik Singh PW2 also came there along with SHO Harmit Singh and after some initial hesitation the appellant disclosed that he had kept one golden chain and three bangles which his wife was wearing in the drain hole of the bath room of his house and he could show the same to the police and get them recovered
He deposed that disclosure statement EXPC was prepared at the police station and was signed by him as well as by the other witnesses present there
Thereafter the appellant was arrested and he led the police party to his house where he pointed out the drain hole in the bath room and after removing the cover of the drain hole the appellant took out from inside the drain hole a golden chain and three golden bangles and handed over the same to SHO Harmit Singh
Memo of recovery EXPF was prepared and was signed by the witnesses
With a view to assert his independence and that he had no earlier connection with the IO he stated I came to know SHO Harmit Singh since March 1976 when I organised a function of Youth Congress and had contacted the SHO for arrangements for the said function
I have never gone to the police station in any other connection or regarding public 241 grievances
I have not organised any other function in the area except the one stated above
Regarding the signing of the recovery memo at the house of the appellant and his leaving for his house from there as was deposed to by the Investigating Officer Kuldip Kaul PWl stated I had come back with the police to PS after the recovery of the ornaments and there at about 330 pm my statement was recorded by the police and I came back home at about 4 pm  Harnaik Singh PW2 giving his version regarding the disclosure statement and the consequent recovery stated About 4 12 or 5 months back at about 2230 pm
I had taken a passenger in my taxi to the quarters of PS Hauz Khas
When I was coming back after dropping the passenger one police officer Sardarji who was standing at the gate of the PS called me and took me inside the PS
There is one room besides the police were one Mr Kaul PWl and Surinder Pal Jain accused present in court
Then in the room that Sardarji police officer took up one paper which had been prepared already and asked me to sign saying that they have to conduct some inquiry in the case
Then that Sardarji told me to accompany the police party to Green Park
Then we went there besides the police party and myself PWl and the accused were also there
On reaching the house in Green Park the accused led the police party to the bath room and I also followed them in to the both room
Then the Sardarji took out there bangles and one gold chain from the gutter of the bath room
The Sardarji took those three bangles from the gutter on being told by the accused He asserted that he did not at all know the Sardarji police officer prior to that date and that
he had gone to the police station for the first time on that day
During the cross examination he admitted that The contents of memos EXPC and EXPF were not read out to me but I was told by the police that the weight of things recovered and the recovery was being written in those papers ASI Maha Singh PW5 who had arrived at the spot at the earliest and had sent information to his senior officers including SHO Harmit Singh and had kept a guard at the spot
During the cross examination admitted that Kuldip Kaul and Harnaik Singh witnesses had come there before 7 am ST Dalip Singh PW6 who had also accompanied the SHO to the house of the appellant at about 630 am stated when we reached Kuldip Kaul and Hamaik Singh witnesses were present
ASI Maha Singh was already 242 there
 The witness also deposed about the interrogation of the appellant and the recording of the disclosure statement at the police station in his presence and the subsequent recovery of the ornaments and the preparation of the recovery memo PF in the presence of Kuldip Kaul and Harnaik Singh PWs
Contrary to what Harnaik Singh PW said this witness deposed the accused himself took out three bangles and one golden chain front the main hole and handed them over to the SHO
 The witness during the cross examination stated The ornaments were weighed by some goldsmith who was called there by the SHO
I do not know whether that goldsmith also signed the possession memo or not  The above is the entire prosecution evidence relating to the making of the alleged disclsoure statement by the appellant and the consequent recovery under Section 27 of the Evidence Act at his instance
According to the appellant however he had made no disclosure statement nor led the police party to the recovery of the ornaments as alleged
According to the defence version the missing ornaments had in fact been recovered by the police party around 11 am during search from the service lane from underneath a slab near the boundary wall and at that time the appellant and Jagminder Dass Jain were also present
This defence version is supported by the evidence of DW2 Tara Chand father of the deceased
The presence of this witness is admitted at the spot by the Investigating team as was natural being the father of the deceased
His testimony assumes significance as in the normal course of events he would be the last person to screen the real offender who murdered his daughter
Tara Chand DW2 stated that the police had interrogated him and he had told the IO that the appellant and the deceased had good relations with each other and that he had never received any complaint of any dispute or difference between them from his daughter
That he had also married of his other daughter with the brother of the appellant MP Jain and that both the sisters alongwith their husbands were living together in the same house
Deposing about the sequence of events at the house of the appellant the witness stated Then at about 1030 am the police took into possession four golden bangles from Sharda but I cannot say as to from where she had produced them whether she was wearing them or she had brought them from the house
I had seen her just producing them
She had handed over those bangles to the same Sardarji police officer who had talked to me and at that time we were in the drawing room
The police 243 had been told that the bangles which Usha was wearing and which were missing were of the same type which were with Sharda and there upon they conducted search for the articles in and around the house with the bangles in hand They went out towards the back side
Persons who were inside the house and also SP Jain accused had joined the search party
I came to know that three missing bangles and one chain had been found out from underneath a slab at the back of the house
I came to know at about 1130 am that these things had been recovered and after about 12 hour of that the police took in jeep MP Jain SP Jain and Sharda Jain to the police station
Police told me that they were taking all the three for interrogation During the cross examination he asserted After the police had taken Sharda s four bangles in hand and they went around looking for the stolen bangles I was in the varandah by the side of the dead body and kept on observing the scene and I saw that after sometime the same sub inspector who had the four bangles in hand was coming from outside from the back side and had three bangles and one chain in the other hand
Some 57 persons from the public who were already inside the house had gone outside with the police and they also came back with the police after recovery of the ornaments
I learnt from them that those ornaments had been found front underneath a slab and sometime after myself went out and saw that spot
The three bangles and chain were loose and were not found in any cloth He categorically denied the suggestion that the appellant had led the police party to the bath room on that day and had got recovered form the drain hole of the bath room the three bangles and the golden chain
Shri Jagminder Dass Jain appeared as DW12
He leves in the same locality as the appellant and had gone to the house of the appellant soon after 6 am on learning that some murder had taken place
Deposing about the recovery of ornaments he stated that the SHO after taking into possession the bangles from Sharda went outside towards the back lane and the witness accompanied the SHO and the crime team along with some others
He stated that during the course of the search of the back lane and from underneath a slab one gold chain and three golden bangles were recovered
The recovered bangles were compared with the other which had been earlier produced by Sharda and a memo of the recovery was prepared by the police and was signed by the witness as well as the appellant
The learned Sessions Judge carefully considered the evidence led by the prosecution with regard to the disclosure statement and the recovery 244 of ornaments
She found the evidence of Harnaik Singh PW2 who according to DW11 Sunder Lal constable of police station Defence Colonly had been earlier also cited as a witness for the prosecution in a case investigated by Harmit Singh the then Sub inspector of police and the present Investigating Officer was not reliable and that the Investigating Officer had not told the truth when he had deposed that he did not know Harnaik Singh earlier
That Harnaik Singh had on his own showing signed the disclosure statement after it had already been written and that the appellant bad not made any disclosure statement in the presence of Harnaik Singh PW2 who had been introduced being a convenient witness
The learned Sessions Judge also found the evidence of PWl Kuldip Kaul as not reliable or trustworthy and disbelieved his testimony by giving cogent reasons after properly appreciating the evidence led by the prosecution
She found the defence version with regard to the recovery as more probable and opined that the investigating officer had created false clues and fabricated false evidence
The learned Sessions Judge observed I therefore cannot bring myself at all to accept the prosecution case about any disclosure having been made by the accused or having led to recovery of missing ornaments in pursuance to this disclosure and I am con strained to say that the IO has made unabashed attempt to fabricate false evidence to bring on record incriminating evidence against the accused whom he had tied down for the offence us 302 IPC and went to the extent of introducing false witnesses preparing fabricated recoveries replacing them by original recoveries The High Court on the other hand did not deal with the various discrepancies and contradictions appearing in the prosecution evidence relating to the making of the disclosure statement and the recovery of the ornaments
The High Court placed reliance on the testimony of Kuldip Kaul PWl and Harnaik Singh PW2 to hold that the disclosure statement and the recovery had been made in the manner suggested by the prosecution
In our opinion the High Court did not properly appreciate the prosection evidence while reversing the well considered judgment of the learned Sessions Judge
245 On our independent appraisal of the evidence we find that the prosecution evidence relating to the disclosure statement and the recovery of ornaments is not only discrepent and contradictory but also suffers from glaring infirmities and improbabilities rendering it unsafe to rely upon the same
There is contradiction between the evidence of Kuldip Kaul PW1 and the IO as to the place where Kuldip Kaul signed the recovery memo
According to the 10
it was signed at the spot while according to Kuldip Kaul PW1 he had returned to the police station and there signed the recovery memo
Again while Kuldip Kaul attempted to show that he had met the IO just once and did not know him earlier the IO has given a direct lie to it
After carefully analysing the evidence we find Kuldip Kaul PWl was a convenient witness and his evidence does not appear to be trustworthy
Same is our opinion about Harnaik Singh PW2
Whereas both Harnaik Singh PW2 and the IO want the Court to believe that they did not know each other earlier and that IO had seen Harnaik Singh for the first time on that day only at the police station there is abundant material on the record to show only that Harnaik Singh had earlier been cited as witness by the same IO while posted as Sub Inspector at another police station Harnaik Singh PW2 was also present outside the house of the appellant alongwith Kuldip Kaul PWl as early as on 630 AM on that day
Harnaik Singh PW2 also exposed his unreliability when he admitted during the cross examination that the disclosure statement had not been made by the appellant in his presence at the police station but that he had signed a statement which had already been prepared thus giving a lie not only to Kuldip Kaul PWI but also to the IO who have deposed to the contrary
As regards the recovery of ornaments also there is a very serious infirmity which emerges from the testimony of Harnaik Singh PW2
Contrary to what the IO and the other witnesses stated Harnaik Singh PW2 deposed that the ornaments were taken out by the Sardarji I O from the drain hole and not by the appellant
This probabilises the defence version that the ornaments had been recovered during the search and were with the IO when the ritual of the recovery under Section 27 of the Evidence Act was performed
The contradictions in the evidence of the IO and SI Dalip Singh PW6 as to who had weighed the ornaments after their alleged recovery also casts doubt on the correctness of the prosecution story and the bonafides of the investigation
246 The learned Judges of the High Court noticed the evidence of Harnaik Singh as regards the manner of his signing the disclosure statement and the alleged recovery of ornaments and observed  Harnaik Singh PW2 even though cited as a witness of the disclosure statement does not subscribe to it and obviously as stated by Harmit Singh he was only brought to the police station after the first interrogation was conducted
In any event we think that a person like Harnaik Singh PW2 who is not prepared to subscribe to a part of the prosecution case to which he was not a witness could not but be a truthful witness and there is absolutely no reason not to believe his version that these ornaments were recovered at the pointing out of the accused and were drawn from the drain hole by the accused himself
 We are unable to appreciate this approach of the High Court
The Court seems to have made a virtue out of a vice
While deposing about the recovery of the ornaments from the drain hole of the bath room Harnaik Singh PW2 belied the entire prosecution case when he stated that after the appellant had led the police party to the bath room the Sardarji took out three bangles and one golden chain from the gutter of the bath room
The High Court did not advert to this aspect of the evidence at all
Kuldip Kaul PWl who was also disbelieved by the learned Sessions Judge and in our opinion rightly had also exposed the extent of falsehood indulged into by the investigating officer with regard to the time and place where the witness attested the memo of recovery of the ornaments but the High Court did not deal with the said circumstance also in its proper perspective and on the other hand unjustifiably criticised the Sessions Judge for her adverse comments on the veracity of the prosecution case
Obviously the investigating officer had associated Kuldip Kaul PWI not only because he was known to the SHO but also because he was a convenient witness who was prepared to sign the recovery memo at the police station at 330 PM after the police party had returned from the house of the appellant
The glaring discrepancies and contradictions noticed above have rendered the evidence of Kuldip Kaul PW1 Harnaik Singh PW2 and the Investigation Officer Harmit Singh PW19 untrustworthy and unreliable
On the other hand we find that the defence version regarding the recovery of ornaments is more probable and is supported by independent witnesses including Tara Chand 247 DW2 father of the deceased whom the IO did not produce as a prosecution witness
Despite searching cross examination nothing was elicited to created any doubt on the veracity of Tara Chand DW2 the father of the deceased who as already stated would be the last person to screen the real murderer of his daughter
The evidence of Tara Chand DW2 has impressed us and we find that the version given by him in the facts and circumstances of the case was more probable
In view of the serious discrepancies contradictions and the attempt of the Investigating Officer Harmit Singh to create false clues and fabricate evidence we are of the opinion that the learned Sessions Judge was perfectly justified in rejecting the prosecution evidence relating to the disclosure statement exhibit PC and the consequent recovery of the ornaments
The prosecution has failed to establish that the appellant did make the disclosure statement as alleged by the prosecution or led to the recovery of the ornaments belonging to the deceased in the manner suggested by the prosecution
This piece of circumstantial evidence therefore has not at all been established much less conclusively
In a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and those circumstances must be conclusive in nature
Moreover the established facts should be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence
Though with the ruling out of the recovery of the ornaments as circumstances relating to the been established conclusively the chain of the circumstantial evidence snaps badly we find that there are some other circumstances also in the prosecution case which militate against its correctness
Admittedly the nail clippings of the nails of the deceased had been taken by the police
There was also recovery of the hair from near the cot where the dead body was lying and the romoval of the hair from the scalp of the appellant by the IO for the purpose of their comparison
The report of the chemical examiner has not connected the hair recovered from the cot with those of the appellant
There is no material on the record either to show that the nail clipping had any blood which could have tallied with the blood group of the appellant
Thus both the nail clippings and the hair have failed to connect the appellant with the crime
248 The information about the incident was given by Sulekh Chand Jain DW13 an immediate neighbour of the decased who informed the police at 455 AM on the request of the appellant about the occurrence
Sulekh Chand Jain was not examined by the prosecution and was instead examined by the defence and has appeared as DW13
He deposed that he had conveyed the information as given to him by the appellant and other inmates of that house regarding the murder of the deceased to Moti Ram PW11 at police station Hauz Khas on telephone
The record of the information conveyed by him at the police station was however cryptic and no explanation has been furnished as to why the recorded report was so cryptic
In answer to a question in the cross examination the witness naturally expressed his ignorance as to why the report had been recorded in the manner in which it was recorded
That was natural
This explanation was required to be furnished by the police witnesses rather than DW13
Though he was subjected to incisive cross examination nothing emerged from the evidence of DW13 which may show that he had not conveyed the information of murder having been committed to the police
Under these circumstances the argument of Mr Garg that the report was designedly left vague to enable the investigating agency to fill in the blanks latter cannot be dismissed as wholly unplausible particularly when we have noticed the conduct of the Investigating Officer during the investigation
The possiblility that the entire case was built up after the dogs of the dog squad pointed towards the appellant cannot be ruled out
Since the appellant had slept in the verandah near the cot where the dead body of his wife was found had locked the collapsable door with the recovered lock before going to sleep and had himself been close to the dead body before the police came the picking up of the smell by the dogs and pointing towards the accused could not be said to be a circumstance which could exclude the possibility of guilt of any person other than that of the appellant or be compatible only with hypothesis of guilt of the appellant
The pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime
The explanation of the appellant regarding the injuries on his person as having been caused by the police is also quite plausible because according to the father of the deceased the sister of the deceased the tenants of the house and other neighbours who had reached the spot the appellant was wearing only a vest and the pyjama and no shirt and there were no marks of injuries on his body before he was 249 taken to the police
station
The prosecution case regarding the presence of injuries on the person of the deceased also therefore is quite doubtful
On an independent appraisal of the evidence on the record we have therefore unhesitatingly come to the conclusion that the learned Sessions Judge was perfectly justified in acquitting the appellant of all the charges and the reasoning given and the findings recorded by her are sound cogent and reasonable
The High Court was not justified to set aside those findings on surmises and conjectures
The finding of guilt recorded against the appellant by the High Court is not sustainable in law and we agree with the learned Sessions Judge that the prosecution has not established the case against the appellant beyond a reasonable doubt
We accordingly set aside the judgment of the High Court convicting the appellant for the offence under Section 302203 IPC
The appeal is allowed and the appellant acquitted of both the charges
The appellant is on bail his bail bonds shall stand discharged
NVK Appeal allowed


Summary:
The High Court reiterating the principles enunciation in Synthetics and Chemicals Ltd and Ors
vs State of UP and Ors
  held that the Central Government had the exclusive power to grant a licence for the manufacture of industrial alcohol and it was not necessary for the Company respondent to obtain a PD 2 licence from the Excise Commissioner before starting its distillery for the manufacture of industrial alcohol
The High Court directed the State of UP and another not to interfere with the respondent Company s manufacturing Industrial alcohol in the distillery for which licence was granted but subject to the State Government s right to ensure that industrial alcohol was not converted into potable alcohol
The State of UP filed a special leave petition against the judgment of the High Court in this Court contending that before manufacturing industrial alcohol the respondent company was to manufacture into rectified spirit and that rectified spirit Could be converted potable liquor by merely adding water that the High Court did not give any reason in support of the High Court s direction
We further direct that the respondents shall allot molasses to the petitioner in accordance with the assurance given to the petitioner vide order of the Government dated 2331989 The respondent Company submitted that the High Court order was extended from time to time for the subsequent years as well
Dismissing the Special Leave Petition this Court HELD 01
The law laid down by this court and the observations of 292 the High Court in the impugned judgment recognise and safeguard the right of the State Govt
to guard against any abuse and to ensure that rectified spirit is not diverted for human consumption
That power is affirmed
293F 02
The direction of the High Court cannot be construed and shall not be understood as calling upon or directing the Government to do anything or to make any supplies contrary to the provisions of the provisions of the Molasses Contral Order or any other law governing the supplies of molasses
The supply of molasses to the respondent shall be made in accordance with law
294A B Synthetics and Chemicals Ltd and Ors
vs State of UP and Ors
   referred to
292F