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

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).

Reasoning: 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.