JUDGMENT [ENTITY], J.
1. By this common judgment, both the appeals ([CASE NUMBER] and [CASE NUMBER]) can conveniently be disposed together. Both the appeal are directed against the common judgment of the learned Additional Sessions Judge, New Delhi and the order of sentence dated 3.1.2001 and 4.1.2001 respectively. The learned Trial Court held the appellants guilty of the offences punishable under [SECTION] and [SECTION] read with [SECTION] of [ACT], They were sentenced to undergo imprisonment for life with fine of Rs. 500/- each for the offence punishable under [SECTION], [ACT] and to undergo rigorous imprisonment for four years with fine of Rs. 500/- each for the offence punishable under [SECTION], [ACT] In case of default of payment of fine, they have to further undergo rigorous imprisonment for six months on each count.
2. The facts of the prosecution case are that on 3.1.1997 at about 8.50 a.m. an information was received at Police Station Kapashera that a headless body was lying near Tandon Farm/Geeta Farm. On basis of this information, Daily Diary No. 11 was recorded at Police Station Kapashera. Copy was given to Sub-Inspector [ENTITY], who Along with certain members of police force went to the spot. Inspector [ENTITY], the then Station House Officer of Police Station Nazafgarh also reached the scene. The dead body was found lying amongst bushes. It was of a female. The age of the deceased was assessed at 25-30 years, dark colour and slim body. The dead body was wearing chain of yellow metal and a black threat, besides a ring of yellow metal. There was one ear ring of yellow metal lying near the body on the ground. It appeared that the head of the dead body had been severed with the help of a sharp edged weapon. Four bangles of plastic, red in colour and two glass bangles of yellow colour, though in broken condition, had been lying around the body. When the area was searched, a white blue printed saree, blue blouse, white sweater, dark scarf and blue petticoat in torn condition, dark green shawl, one pair of footwear made of cloth were found lying. All these articles and footwears were converted into a parcel and were sealed. The clothes were blood stained.
3. The area around the place was searched. At that time, the drain was full of water, The S.H.O. had called for a pump to drain out the water. The body of deceased could not immediately be identified. A Rukka was prepared on basis of which formal First Information Report was recorded. The scene of incident was photographed. Rough site plan was prepared and blood was lifted from the earth, They were converted in to separate parcels and sealed and then taken into possession.
The dead body was removed to the mortuary and was directed to be preserved.
4. The water level in drain had gone down. On 4.1.1997 the severed head was found. The said scene of incident was again photographed. The identity of the deceased was established to be [ENTITY] wife of [ENTITY]. It was identified by [ENTITY], who was Manager in Garment Exports firm. [ENTITY] was stated to be working there. The dead body was also identified by [ENTITY] (father) and [ENTITY] (brother-in-law) of the deceased.
5. The dead body and the severed head were subjected to post-mortem. The cause of death was found to be asphyxia and that the head was decapitated just after the death. It had been opined that the death had occurred 1 or 2 days before receipt of the dead body. It was confirmed that the head and the dead body were of the same individual.
6. It is the prosecution case that [ENTITY] had gone to leave [ENTITY] at her residence when he met [ENTITY] and [ENTITY]. [ENTITY], the landlord where the deceased was staying also found that both the accused were last seen with her. The house of [ENTITY] was raided. [ENTITY] was also found present. Both were arrested. They were interrogated. Disclosure statement was made and in pursuance thereto, a suit case with the name of [ENTITY] on a sticker pasted inside containing her clothes was recovered. [ENTITY] also got recovered one trouser and one printed shirt and a pair of hawai chappal. Appellant [ENTITY] led the police party to a place 60-70 yards from the temple under construction in the area of jungle of Gram Sabha Kapashera and got recovered a knife with blade of 24.5 cm. The knife was converted into a sealed parcel and taken into possession vide a recovery memo. He also got recovered a pair pf glass with plastic frame. Dr. [ENTITY] had opined that the decapitation injury on the person of the deceased could he caused by the knife.
7. The learned Trial Court had framed charges against the appellants for the offences punishable under [SECTION], [ACT], to which both the appellants had pleaded not guilty and claimed trial.
8. The prosecution had in all examined twenty one witnesses. It was the case of the prosecution that appellant [ENTITY] was working as a watchman in Vindyachal Farm, Kapashera. In August, 1996 [ENTITY], younger brother of [ENTITY] had come and started living with his wife [ENTITY], deceased. The deceased had become friendly with [ENTITY], After 15 days, [ENTITY] shifted his wife to village Kapashera and started working as a watchman in the area of [ENTITY]. Appellant [ENTITY] used to secretly meet [ENTITY]. [ENTITY] had fallen sick and returned to his native village but deceased did not go back with him. He got a tenanted accommodation for her in the house of [ENTITY] where both would meet. Later on, the landlord also got involved in the same relations with [ENTITY] and he took another tenanted room in the house of [ENTITY], [ENTITY] wanted to marry her with the result that [ENTITY] deceased sent her daughter to native village. In other words, it is the prosecution case that she was a woman of easy virtues and did not change her habit of keeping relations with others despite objections of [ENTITY], which promoted him to commit the offence.
9. The learned Trial Court had considered the evidence and believed the evidence that deceased was last seen with, both the appellants and they got recovered the belongings of deceased besides the weapon with each. The head of deceased was decapatitated and concluded, and that prosecution had proved the prosecution case beyond reasonable doubts. With, these findings, the above said conclusions were arrived, at. Hence the present appeals.
10. Learned Counsel for the appellant urged vehemently that the case of the prosecution rested totally on circumstantial evidence and the facts/circumstances to bring home the guilt have not at all been proved. Consequently it was contended that the learned Trial Court was not justified in recording the order of conviction.
As against this learned Counsel for the State Counsel opposed the assertions by setting that the circumstances were so, established and there is no ground to interfere in the order of the learned Trial Court.
11. The principle, of law as to under what circumstances, a conviction of circumstantial evidence can be based has been well settled. One can refer to only some of the precedents on the subject. In one of the earliest decisions of the Supreme Court in the case of [PRECEDENT], . The Supreme Court cautioned that there is always a danger with conjectures or suspicion may take place on legal proof. The circumstances may be consistent with only hypothesis that accused is guilty. The Supreme Court held:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drown should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt, of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused ".
12. The same principle was reiterated in the case of [PRECEDENT], , wherein the Supreme Court held that in cases based on circumstantial evidence each of the circumstances relied upon must be clearly established and proved circumstances taken together must be such as reasonably to conclude the probability of innocence. Identical was the view point expressed in [PRECEDENT], , when the Supreme Court held :
"It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be dearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to appellant as the probable assailant, with reasonable definiteness and in proximity, to the deceased as regards time and situation, and he offers explanation, which if, accepted, though not proved would of fords a reasonable basis for a conclusion.
on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain."
13. In the case of [PRECEDENT]; , following principles in this regard were provided :
" When a case rests upon the circumstantial evidence, such evidence must satisfy three tests, (1) the circumstances from which on inference of guilt is sought to be drawn, must be cogently and firmly established, (2) those, circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis then that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence "
14. Identical was the view expressed by the Supreme Court in the case of [PRECEDENT], . From the aforesaid it is clear that the Court has to adopt a cautious approach and conviction can only be based when all links in the chain are complete pointing to the guilt of the accused and it must lead to the only hypothesis which would be against the innocence of the accused. If there are two reasonably possible views necessarily the view favorable towards the accused should be adopted. It is on these principles that the facts of the case have to be examined.
15. One important circumstance relied upon has been that the deceased had been last seen with the appellants. The prosecution had examined [ENTITY] PW 10 to establish the said fact. During his statement on oath he took a complete somersault from his earlier statement recorded under [SECTION], [ACT] and deposed that he knows nothing about this matter. When cross-examined by the Public Prosecutor he added that he does not know anything and his statement even had not been recorded. He stated that he did not know the deceased. He again resoled that he had told the police that on 1.1.1997 he was returning to his house and met [ENTITY] on the way and that appellants were also seen by him. Cross-examination by the Public Prosecutor hardly yielded any good results and necessarily the statement of this witness has to be ignored to establish the said fact.
16. Reliance was strongly being placed on the testimony of [ENTITY] PW 2 who deposed that he had identified the clothes of the deceased. He further stated that on 1.1.1997 at 7.30 p.m. he had seen the deceased go with both the appellants near his plot at Udyog Vihar. The deceased was his tenant He identified the cloths of the deceased. During cross-examination he admitted that in his statement made to the police he had stated that [ENTITY], appellant had met him and not the other appellant. In this regard he was confronted with his statement made to the police where the name of [ENTITY] was not recorded. This fact which was not recorded in his earlier statement cannot be termed to be an omission. It is clear improvement of his earlier statement. In that view of the matter it will be difficult to pin faith in his testimony so as to hold that the said fact had been so established because there is no other corroboration to it from any other evidence on the record. In its isolation it will not be sufficient to establish the guilt of the appellants.
17. Learned Counsel for the Public Prosecutor alleged that the knife as such was recovered in pursuance of the disclosure statement made by the accused/ appellant [ENTITY] and that he got the same recovered from near the temple. However what cannot be ignored is an important fact that Dr. [ENTITY], PW 7 who conducted the autopsy on the mortal remains of the deceased had clearly opined that the death was due to asphyxia. In other words the weapon referred to was not used for causing the death of Mrs. [ENTITY].
18. Our attention was further being drawn to the fact that the recovery of the belongings of the deceased were also effected from the possession of the appellants in pursuance of their disclosure statement and this according to the learned Counsel was an important fact which establishes the guilt of the appellants but the evidence on the record indicate that recovery had been effected first, thereafter the disclosure statement had followed. This is apparent from the statement of [ENTITY], PW 3, father of the deceased. In his own words the statement reads :
" Both the accused persons were arrested by the police and their personal search was conducted vide memo Ex. PW 3/B and C, which bear my signatures at points B and C. Beneath the clot of the accused, a box was lying, which was opened by the police in my presence and was found to be containing saree, blouse, petticoat and ear-rings which I identified to be of my daughter-[ENTITY], The disclosure statement of both the accused persons were recorded at their Jhuggi by the police in my presence, which bear my signatures and points D and E. The disclosure statement of accused-[ENTITY] is Ex. PW 3/D and that of [ENTITY] is Ex. PW 3/E "
19. The statement as recorded clearly indicates that the recovery had preceded the disclosure statement and it knocks the bottom of the very basis that in pursuance of the statement the clothes of the deceased were recovered from the possession of any one of the appellants.
20. The sequence of events therefore clearly shows that the prosecution case fumbles and faulters at each step. The circumstances set up to establish the guilt of the appellants have not been so established to permit the Court to hold that the appellants were last seen with the deceased. They were in possession of the clothes of the appellants or that any other material circumstances that they caused the death of the deceased. Therefore, the appellants must be held entitled to the benefit of doubt.
21. For these reasons both the appeals are allowed and the judgment and order of sentence are set aside. Appellants, if not required in any other case may be set at liberty.