Case: H.D. Sikand (D) Through L.Rs. &amp; Another Vs. Central Bureau of Investigation &amp; Others

reasons: i) Motive to Kill: It is evident from Respondent No.2s 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 Deceaseds 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 Respondents 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 v. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 v. 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.