Delhi High Court

Deepak Sarna vs State (Nct Of Delhi) on 30 October, 2018

Equivalent citations: AIRONLINE 2018 DEL 1868

Author:
S. Muralidhar

Bench:
S. Muralidhar
,
Vinod Goel

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 4th October, 2018
Decided on: 30th October, 2018
+ CRL.A.174 /2004

DEEPAK SARNA ....Appellant
Through: Mr Pramod Kumar Dubey, Mr Rohit
Priya Ranjan, Ms Pinky Dubey, Mr
Saurabh Kumar, Ms. Shweta Sharma,
Mr Prince Tiwari, Ms Trisita
Parashar, Mr Ayush Kaushik and Mr
Vikhyat Oberoi, Advocates.
versus

STATE (NCT OF DELHI) ....Respondent
Through: Mr Kewal Singh Ahuja, APP for the
State.

CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL

JUDGMENT

Dr. S. Muralidhar, J.:

1. This appeal is directed against the judgment dated 9 th February, 2004
passed by the learned Additional Sessions Judge, New Delhi („the trial
Court‟) in Sessions Case No.110/03 arising out of FIR No.975/2000
registered at Police Station („PS‟) Malviya Nagar, New Delhi convicting the
Appellant of the offences under
Sections 302
,
and
of the Indian
Penal Code („
IPC
‟) and the consequent order on sentence dated 10 th
February, 2004 whereby for the offence under
Section 302
IPC, the
Appellant was sentenced to life imprisonment along with fine of Rs.95,000/-

and in default of payment of fine to further undergo rigorous imprisonment

Crl.A.174 /2004 Page 1 of 40

(„RI‟) for four years; for the offence under
Section 364
IPC, to undergo life
imprisonment; and for the offence under
Section 201
IPC, to undergo RI for
four years along with fine of Rs.5,000/-, and in default of payment to further
undergo RI for one year. It was directed that in case the fine amount was
deposited, Rs.90,000/- will be paid to Mr Vinod K. Chaudhary (PW-1), the
father of the deceased. All the sentences were directed to run concurrently.

2. The Appellant, who was arrayed as Accused No.3 („A-3‟) was sent up for
trial along with two other co-accused i.e. Gyan Prakash („A-1‟) and Amit
Singh („A-2‟). However, by the impugned judgment, A-1 and A-2 were
acquitted of all the offences with which they were charged.

Charge

3. The charge against all the three accused persons was, first, that they
entered into a criminal conspiracy on or before 28th October, 2000 to abduct
and murder Manish Chaudhary („the deceased‟), thereby committing an
offence under
Section 120-B
IPC; secondly, that they abducted the deceased
and then murdered him by stabbing and strangulation and disposed of his
dead body in a well in village Simbhavali after removing his belongings,
thereby committing offences punishable under
Sections 302
/
/
/
read with
Section 120-B
IPC.

Deceased goes missing

4. The case of the prosecution, as it emerged from the version of PW-1, was
that PW-1 had an office at Ansari Road, Darya Ganj, Delhi, where he
operated his family business of cargo and shipping. The deceased was his
son and was also operating the business along with him. According to PW-1,

Crl.A.174 /2004 Page 2 of 40

on 28th October, 2000, he had left his office at around 5.15 pm, and at that
time, the deceased, Raj Gupta (PW-23), the driver of the company and a few
other staff members had stayed back in the office.

5. The deceased purportedly left the office premises at around 6 pm, along
with PW-23 and his driver. According to PW-23, they had made a plan to
visit the Sai Baba Temple at Lodhi Road and left in the deceased‟s Maruti
car bearing number 0804, which was a Maruti-800, silver colour, and was
driven by the driver of the deceased. The driver was dropped off at the
Income Tax Office Circle. Thereafter, the deceased started driving the car.
He dropped PW-23 at Sai Baba Mandir in Lodhi Road. The deceased
apparently told PW-23 that he was unable to come to the temple as he had to
go to Deepak Sarna (A-3) to collect a payment of around Rs.80-90,000/-.

6. The deceased, who would normally reach back home by 9.30 pm, did not
return home that night. When PW-1 tried calling the deceased on his mobile
phone (ending in 6347), he was unable to get through. PW-1 continued
trying to contact the deceased on his mobile phone till 4 am on 29 th October,
2000. A number of friends and relatives were also contacted and plenty of
them reached the residence of PW-1 by about 5 am. Various hospitals were
also searched, but the deceased could not be located.

7. According to PW-1, after 8.30 am, they went to the shop of A-3 in
Malviya Nagar. This was on account of the fact that PW-23 had informed
PW-1 about the deceased telling him that he was going to A-3 to collect the
money owed to him. According to PW-1, they asked the servants at the shop
of A-3 whether the deceased had come there on 28th October, 2000. They

Crl.A.174 /2004 Page 3 of 40

answered in the affirmative. Ashutosh (PW-6), a cousin of PW-1, then tried
to speak to A-3 on the phone, but he could not be contacted. A message was
left with the servants that as and when A-3 came to the shop, he should
contact PW-1. The mobile phone number of PW-6 was also left behind with
the servants, to be passed on to A-3.

8. At around 10.30 or 11 am, when A-3 came to the shop, he contacted PW-
6 and informed him that the deceased had come to him at around 6.30 or 7
pm on 28th October, 2000.He further stated that the deceased had received a
call on his mobile phone and had then left at around 8.30 pm. Thereafter,
since they had failed to trace the whereabouts of the deceased and thought
that A-3 was the last person who had been seen with the deceased, PW-6
took A-3 to the PS to get the missing report lodged.

9. On the evening of 29th October, 2000, PW-1 along with friends and
relatives again went to the house of A-3 at around 11 pm. PW-1 has stated
that he had known A-3 and his family for the last 28 years. A-3 again stated
what he had told PW-6 the previous day, only this time he stated that the
deceased had left at around 10 or 10.30 pm.

10. According to PW-1, the deceased had told him that he had given A-3
Rs.80,000/- to Rs.90,000/- from his personal savings. PW-1 later learnt that
the deceased had in fact given A-3 Rs.4 to 5 lacs. According to PW-1, the
deceased had also told him that A-3 was trying to avoid the deceased
whenever he had demanded repayment of the money and, therefore, the
relations between him and the deceased had become strained.

Crl.A.174 /2004 Page 4 of 40

11. According to PW-1, the deceased was wearing a gold kada, gold chain
and diamond ring when he was last seen on 28th October, 2000. He also had
a mobile phone of Nokia make and a purse containing money and credit
card. A suit and a new shirt were also in the car of the deceased. The bunch
of keys with the deceased included not only the keys for the office but also
the home.

Complaint to the police

12. On 29th October 2000 PW-6 gave a complaint at PS Malviya Nagar
which was recorded as DD No.9-A (Ex. PW-6/1) to the effect that the
deceased had gone missing after visiting the shop of A-3 at around 9.30 pm.
The mobile number of the deceased was indicated in this complaint. It was
stated that there was no suspicion against anyone. This complaint was
entrusted to Sub Inspector („SI‟) Gurdev Singh (PW-25). According to PW-
25, when he first made inquiries from the family of the deceased, they
informed him that they had no suspicion on anyone about the kidnapping of
the deceased.

13. On 30th October, 2000, PW-1 himself lodged a report with the PS. This
time, after analyzing the statements given by A-3, PW-1 felt that he was
involved in the matter and as a result, he named A-3 as the last person in
whose company the deceased was seen. The report is Ex.PW-1/1.

14. Subsequently, after making inquiries, which were unsuccessful, PW-25
came back to the PS. He received a copy of the FIR (Ex. PW-20/A) which
was lodged by PW-1, raising the suspicion against A-3 stating that A-3 had
given the deceased a call immediately before his having gone missing. On

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31st October, 2000, the relatives of the deceased, including PW-6, Paramjit
Singh (PW-5), Subodh (not examined) and some other relatives went to the
PS and met PW-25. All of them along with a Constable reached the shop of
A-3 at Malviya Nagar. The relatives of the deceased identified A-3. Upon
his interrogation, A-3 is supposed to have made a disclosure statement (Ex.
PW-2/1) in the presence of Constables Narender (not examined), Gurwir
(not examined) and Ashok (PW-2). A-3 was arrested and his personal search
conducted.

Recovery of the body

15. According to PW-25, pursuant to the disclosure statement made by A-3,
PW-25 proceeded to village Simbhavali, UP. The Station House Officer
(„SHO‟) of PS Malviya Nagar also started for the village in a separate
vehicle, followed by relatives of the deceased. They reached village
Simbhavali at 3.15 pm on 31st October, 2000. A-3 is supposed to have
pointed out a well situated there and informed them that the dead body of
the deceased had been thrown in the said well. PW-25 noticed that there
were bloodstains on the boundary wall of the well which were faint and
illegible. A-3 is further supposed to have disclosed that the clothes on the
dead body were removed by A-3 and the other accused and there was only
underwear on the body when it was thrown into the well. Some villagers
with the help of rope and a bucket enabled PW-25 to see a portion of the
body, as it initially was not visible from ground level.

16. PW-25 along with the SHO went to PS Simbhavali and joined SI Hukam
Singh (PW-12) along with Constable Ranbir (PW-11) and Constable Paras.

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They again reached the well and this time, with the help of the villagers,
managed to take the body out. All the relatives of the deceased identified the
body, which was thereafter sent to the hospital for post-mortem.

17. According to PW-25, in his disclosure statement A-3 informed about the
involvement of other two co-accused persons and the police started looking
for A-1 and A-2. They also sought to trace two other persons, namely, Arun
and Bunty, who were supposed to have been with A-1 to A-3 in the
commission of the crime. However, they were not traceable.

18. PW-25 then went to the place of the incident in Noida, during which
time, A-3 was with him. According to him, A-3 pointed out the place of the
incident and PW-25 prepared a site plan (Ex. PW-25/B). PW-25 states that
A-3 disclosed that they had thrown the knife somewhere there but this could
not be traced.

19. On 1st November, 2000, the Appellant was produced before the learned
Metropolitan Magistrate („MM‟). Thereafter, A-3 was taken to PS Hauz
Khas and placed in a police lockup at 8.30 pm.

Recovery of the car

20. On the morning of 4th November, 2000 PW-25 along with Constables
Narender (not examined), Gurwir (not examined) and Ashok Kumar (PW-2)
along with ASI Radhey Shyam (PW-16) went to recover the car belonging
to the deceased. A-3 is said to have led them to a place in village Dehat,
Uttar Pradesh. However, they could not find the car there. They went to PS
Dehat, Kotwali District Ghaziabad where the local police informed them

Crl.A.174 /2004 Page 7 of 40

that the car had been seized by them as abandoned on 31st October, 2000 and
has been deposited in the said PS. PW-25 then seized the car vide seizure
memo Ex.PW-25/C. From there he proceeded to collect the post mortem
report and thereafter went to the well where the body was found and
prepared a site plan of the well Ex.PW-25/B. He recorded the statements of
Mange Ram (PW-9) and Rajpal (PW-10) in respect of recovery of the dead
body on 4th November, 2000. The car seized was deposited in the Malkhana
at PS Malviya Nagar. The car of A-3 was also seized on 8th November,
2000 vide seizure memo (Ex.PW-25).

Post mortem

21. The post-mortem was performed by Dr. Ajay Aggarwal (PW-19) at
around 11.40 am on 1st November 2000. He found the following ante-
mortem injuries on the body:-

"The following ante-mortem injuries were found on the body:

(1) there was incised wound of 4 cm. X 2 cm on right side chest
at the level of 10th rib in mid auxiliary line.

(2) Incised wound of the size 3 cm x 1 cm on right cheek.

(3) There was ligature mark of the size 34 X 2 cm around the
neck.

On internal examination, brain and lungs were found congested.
On abdominal examination, it was found full of blood, stomach
was found empty and lever as well as small intestine were
lacerated."

22. The cause of death was stated to be ante-mortem injuries at serial
numbers 1 to 3, which were sufficient in the ordinary course of nature to

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cause death. The time since death was given as 3 days.

23. In his cross-examination, PW-19 admitted that he found two incised
wounds on the body of the deceased. The ligature mark was visible with
naked eye.

Change of IOs

24. PW-25 stated that on 9th November, 2000, he sustained injuries as a
result of stone pelting at Kalkaji. The case was then transferred to SI Neeraj
(PW-26). In his examination-in-chief, PW-25 stated that he joined the
investigation of the case on 30th October 2000 and on that day itself, it
transpired that Bal Mohan @ Vicky (PW-7) informed him that he along with
the deceased had consumed liquor at the shop of A-3.

25. In his cross-examination, PW-25 admitted that the investigation
remained with him till 8th November, 2000. On 5th November, 2000, PW-25
recorded the statements of certain public witnesses i.e. Paramjit Singh (PW-

5), Ashutosh Roy (PW-6) and Alok Srivastava under
Section 161
Cr PC.
PW-25 after seeing the statements of PWs Paramjit Singh, Ashutosh and
Alok Srivastava stated that these three witnesses had told the police in their
statements under
Section 161
Cr PC that A-3 had disclosed in front of them
that the pant containing the keys of the deceased was also thrown in the
well. However, after analyzing the statements under
Section 161
, it was
found that while PW-5 had mentioned that the pant containing keys was
thrown in the well, PW-6 and Alok Srivastava mentioned only the throwing
of pants in the well but made no mention of the keys. It appears that no logs
were maintained in the form of DD entries for the departure of the police

Crl.A.174 /2004 Page 9 of 40

from the PS or even the corresponding entries at PS Simbhavali.

26. According to PW-25 on 9th November, 2000 he was injured and
therefore the investigation of this case was transferred to Inspector Neeraj
Kumar (PW-26).

Arrest of A-1 and A-2

27. How A-1 and A-2 were arrested in the present case is not clear. What is
spoken of both by Head Constable Jasbir Singh (PW-3) and Constable Hari
Babu (PW-14), both of whom were posted at Police Post, Pushp Vihar
attached to PS Malviya Nagar, was that both A-1 & A-2 were arrested and
were taken to PS Malviya Nagar where they made separate disclosure
statements (Ex.PW-3/1) and (Ex.PW-3/2) respectively. Their personal
search was undertaken and arrest memos (Ex.PW14/A) and (Ex.PW-14/B)
respectively were prepared.

28. On 13th November, 2000 supplementary disclosure statements were
made by them. Even PW-26 has stated that upon taking over the
investigation on 9th November 2000, he found the co-accused A-1 and A-2
"sitting in the room of DO, PD Malviya Nagar and I met them". He had then
proceeded to arrest the two co-accused and record their disclosure
statements which have been referred to above. A-1 and A-2 too took the
police to the same well and pointing out memos were prepared. They
claimed to have thrown the body after removing the pant and a bunch of
keys into the well. According to PW-26, he asked Constable Dharamvir
(PW-24) to climb down into the well and a bunch of keys containing 8 keys
and a jeans pant of blue colour stained with mud and blood was recovered.

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These were sealed vide seizure memo (Ex.PW-3/9). According to PW-26, he
got both A-1 and A-2 medically examined on 14th November, 2000.

Filing of charge sheet

29. On 23rd November, 2000 PW-26 was transferred from PS Malviya
Nagar. He handed over the case file to SI Raj Shekhar (PW-21) for further
investigation.

30. Not much happened with PW-21 as he too was transferred from PS
Malviya Nagar in the month of January, 2001. It appears that ultimately, on
13th January 2001, the investigation was handed over to SI Ramesh Kaushik
(PW-27). He got the supplementary statement of PW-1 recorded and got
"the bunch of keys and two pants subjected to Test Identification Parade
(„TIP‟)." He filed the charge sheet against the three accused as well as the
supplementary challan against the two absconding accused Bunti and Arun.
He also collected the report of the Forensic Sciences Laboratory („FSL‟)
(Ex.PW-27/A).

Trial

31. Charges were framed against the three accused by the trial Court on 3 rd
May, 2001 in the manner indicated hereinbefore. They pleaded not guilty
and claimed trial.

32. On behalf of the prosecution, 29 witnesses were examined. As far as the
statements under
Section 313
Cr.PC are concerned, since A-1 and A-2 have
been acquitted, it is necessary to notice the answers given by A-3 alone, who
was convicted by the trial Court.

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33. The Appellant (A-3) denied the incriminating circumstances put to him.
In response to the suggestions in questions 18 and 22 that he was a friend of
the deceased, he answered that the deceased was known to him but he was
not his friend. A-3 denied having gone to the spot where the body was
recovered. As regards recovery of the car, A-3 stated that its possession was
handed over to the police by his father as per their instructions. He denied
making any disclosure statements and claimed that his signatures/initials
were forcibly obtained on blank papers by the police. A-3 denied having
been associated with the recovery of the deceased's car from the PS Kotwali,
Dehat, Ghaziabad. He denied having been taken there and brought back at
PS Malviya Nagar. A-3 claimed that he had been falsely implicated. No
defence evidence was led.

Impugned judgment of the trial Court

34. The trial court has in the impugned judgment listed out the following
circumstances as forming a complete chain which unmistakeably pointed to
the guilt of the present Appellant:

"1. Recovery of articles.

1(a) Recovery of dead body on 31.10.2000.

1(b) Recovery of bunch of keys and jeans pant of the
deceased on 13.11.2000.

2. Recovery of car of the deceased.

3. Motive

4. Last seen/meeting evidence.

Crl.A.174 /2004 Page 12 of 40

5. Defence.

6. Role of the IO/Investigating officer."

(ii) As regards the recovery of the body from the well, the trial Court
noticed that PWs 4, 9 & 10 had all turned hostile. Even Constable
Ashok Kumar (PW-2) claimed to have got the dead body recovered
on 1st November, 2000 and not 31st October, 2000 as claimed by the
prosecution. However, PWs 5, 6, 11, 12 and 25 were held by the trial
Court to have supported the story of the prosecution. According to the
trial Court, there was not even the „slightest scintilla of evidence‟
which would show that the above witnesses harboured hostility
against the accused and there was no reason why they should not be
believed. As regards the U.P police officials, the trial Court declared
that „it had implicit faith in their evidence‟. It was accordingly
concluded that the fact of recovery of the dead body at the instance of
A-3 stood established beyond reasonable doubt.

(iii) In the same breath, the trial Court found that the investigation by PW-

25 was unsatisfactory. The recovery of the bunch of keys and jeans
pants on 13th November, 2000 at the instance of A-1 & A-2 was
disbelieved by the trial Court and they were held entitled to the
benefit of doubt.

(iv) According to the trial Court, the recovery of the car in the vicinity of
the recovery of the dead body „further goes to invigorate the
circumstantial evidence.‟ There was no further discussion on this
circumstance.

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(v) As regards the motive, the trial Court referred to the evidence of PW-

1, which was supported by the evidence of PW-23 and it was held that
although the fact that the deceased had paid A-3 a sum of Rs. 4 to 5
lacs appeared to be „an afterthought‟, it stood proved that A-3 owed
the deceased Rs.80,000 to 90,000/- and this provided the motive for
the crime.

35. The trial Court next discussed the circumstance of last seen. It was held
that the version of PW-1 stood corroborated by the versions of PW 5 & 6. It
was proved that the deceased had stayed with A-3 till 9.30 p.m. on 28th
October, 2000. The simple denial by A-3 in his defence was to no avail.
Although the trial Court noted that there were major flaws in the
investigation and the murder weapon could not be recovered and no copy of
the FIR was sent to the MM or higher authorities, there were no chances the
record being manipulated in favour of the prosecution. For the
aforementioned reasons, the trial Court held the case against the Appellant
to have been proved beyond reasonable doubt and proceeded to convict and
sentence him in the manner indicated hereinbefore.

36. This Court has heard the submissions of Mr. Pramod Kumar Dubey,
learned counsel for the Appellant and Mr. Kewal Singh Ahuja, the learned
APP for the State.

Law relating to circumstantial evidence

37. This is a case based on circumstantial evidence and the law in this regard
is fairly well settled. The following observations made by the Supreme

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Court in
Sattatiya v. State of Maharashtra
(2008) 3 SCC 210:

"10. We have thoughtfully considered the entire matter. It is
settled law that an offence can be proved not only by direct
evidence but also by circumstantial evidence where there is no
direct evidence. The Court can draw an inference of guilt when
all the incriminating facts and circumstances are found to be
totally incompatible with the innocence of the accused. Of
course, the circumstances from which an inference as to the
guilt is drawn have to be proved beyond reasonable doubt and
have to be shown to be closely connected with the principal fact
sought to be inferred from those circumstances...

... 17. At this stage, we also deem it proper to observe that in
exercise of power under
Article 136
of the Constitution, this
Court will be extremely loath to upset the judgment of
conviction which is confirmed in appeal. However, if it is found
that the appreciation of evidence in a case, which is entirely
based on circumstantial evidence, is vitiated by serious errors
and on that account miscarriage of justice has been occasioned,
then the Court will certainly interfere even with the concurrent
findings recorded by the trial court and the High Court
Bharat
v. State of M.P.
(2003) 3 SCC 106. In the light of the above, we
shall now consider whether in the present case the prosecution
succeeded in establishing the chain of circumstances leading to
an inescapable conclusion that the appellant had committed the
crime."

38.
In
G. Parshwanath v. State of Karnataka
(2010) 8 SCC 593, the
Supreme Court made the following observations when considering a case
hinging on circumstantial evidence:

"23. In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn
should, in the first instance, be fully established. Each fact
sought to be relied upon must be proved individually. However,
in applying this principle a distinction must be made between
facts called primary or basic on the one hand and inference of

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facts to be drawn from them on the other. In regard to proof of
primary facts, the court has to judge the evidence and decide
whether that evidence proves a particular fact and if that fact is
proved, the question whether that fact leads to an inference of
guilt of the accused person should be considered. In dealing
with this aspect of the problem, the doctrine of benefit of doubt
applies. Although there should not be any missing links in the
case, yet it is not essential that each of the links must appear on
the surface of the evidence adduced and some of these links
may have to be inferred from the proved facts. In drawing these
inferences, the court must have regard to the common course of
natural events and to human conduct and their relations to the
facts of the particular case. The Court thereafter has to consider
the effect of proved facts. In deciding the sufficiency of the
circumstantial evidence for the purpose of conviction, the court
has to consider the total cumulative effect of all the proved
facts, each one of which reinforces the conclusion of guilt and
if the combined effect of all these facts taken together is
conclusive in establishing the guilt of the accused, the
conviction would be justified even though it may be that one or
more of these facts by itself or themselves is/are not decisive.
The facts established should be consistent only with the
hypothesis of the guilt of the accused and should exclude every
hypothesis except the one sought to be proved. But this does
not mean that before the prosecution can succeed in a case
resting upon circumstantial evidence alone, it must exclude
each and every hypothesis suggested by the accused,
howsoever, extravagant and fanciful it might be. There must be
a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act
must have been done by the accused, where various links in
chain are in themselves complete, then the false plea or false
defence may be called into aid only to lend assurance to the
court."

39. The legal position was summarised in
Padala Veera Reddy v. State of
Andhra Pradesh
1989 Supp (2) SCC 706, as under:

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(a) The circumstances from which an inference of guilt is sought to be
drawn must be cogently and firmly established;

(b) Those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused;

(c) 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; and

(d) The circumstantial evidence, in order to sustain conviction, must be
complete and incapable of explanation of any other hypothesis than
that of the guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent
with his innocence.

Last seen

40. The Court would first like to discuss the evidence of last seen. The
prosecution has relied on PWs 1,5,6,7, 8 and 23 as being relevant for this
circumstance. Of these, as rightly pointed out by learned counsel for the
Appellant, only PWs 7 and 8 have actually spoken about the deceased being
last seen in the company of A-3. Since both PWs 7 and 8 turned hostile, it is
the other witnesses viz., i.e. PWs 1, 5,6 and 23 whose evidence will require
to be carefully examined in regard to the evidence of last seen.

41. First, turning to the evidence of PW-1, he left the office before the
deceased did and had no occasion to know if on the fateful day i.e. 28 th
October 2000, the deceased left to meet A-3. In his complaint to the police
made on 30th October 2000 (Ex. PW-1/1), PW-1 stated that PW-23 told him
that while dropping off PW-23 at the Sai Baba Mandir on Lodhi Road, the
deceased told PW-23 that he was going to South Delhi to "meet his friend."
PW-1 did not name A-3 as that friend. He then stated in his complaint:

"We understand through our contact that Manish visited Mr. Deepak

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Sarna at 8-L 81 B Lower G Floor at ---Malviya Nagar, N. Delhi.
Upon contacting Mr. Deepak Sarna, he confirmed that Manish was
with him from 7.30 pm till 10.15 pm at his automobile accessory at
the above said address. He was last seen and was with Mr. Deepak
Sarna after that there is no trace of him."

42. But at that stage PW-1 did not suspect A-3. He merely stated in his
complaint that: "It seems my son Mr. Manish Chowdhry has been detained
by someone to cause harm to him."

43. The next time PW-1 spoke to the police was when his statement under

Section 161
Cr PC (Ex PW-1/DA) was recorded. Although this statement is
undated, since it is signed by SI Neeraj Kumar (PW-26) who took over the
investigation from PW-25 on 9th November 2000, it is safe to presume that
this statement was recorded only thereafter. In this statement PW-1 stated
that Vicky (PW-7) a friend of the deceased informed PW-1 on the phone
that the deceased was with A-3 that evening. However, with PW-7 turning
hostile, this part of the statement of PW-1 was not corroborated.

44. In Court, PW-1 deposed about his having gone along with Ashutosh
(PW-6) to the shop of A-3 on 29th October 2000; how they first found his
servants who told them that the deceased had come there; that on coming to
know of the above fact PW-6 tried to contact A-3 on the phone; that PW-1
himself was nervous and perplexed at that time; that A-3 could not be
contacted on phone by PW-6 which persuaded them to leave a message with
the servants that as and when A-3 came to the shop he should contact them;
that PW-6 left his mobile number with the servants; that at around 10.30 or
11.00 am, when A-3 returned to shop he contacted PW-6 on his mobile

Crl.A.174 /2004 Page 18 of 40

phone informing him that the deceased had come to him and remained with
him till 8.30 pm; that A-3 told PW-6 that the deceased had received a call on
his mobile phone and left A-3 at 8.30 pm. In the cross-examination of PW-1
it was able to be elicited by counsel for the defence that all of the above
statements were improvements. In other words none of the above details
were given either in the initial complaint (Ex. PW-1/D1) or in the statement
under
Section 161
Cr PC (Ex. PW-1/DA).

45. While the above improvements could be viewed as affecting the
credibility of PW-1, the fact remains that both in the first complaint given as
DD No.9A on 29th October 2000 and in the FIR lodged by PW-1 on 30th
October 2000 (PW-1/1) it was mentioned that the deceased had gone to the
shop of A-3 in the evening of 28th October 2000.

46. Turning now to the evidence of Paramjeet Singh (PW-5), an
acquaintance of PW-1, his statement under
Section 161
Cr PC was recorded
by SI Gurdev Singh (PW-25) only on 5th November 2000, although PW-25
is supposed to have taken over the investigation on 30th October 2000. There
is no explanation for the delay. In Court, PW-5 deposed about his having
gone to the shop of A-3 on 29th October 2000 with PW-1 and PW-6 and A-3
having told them that the deceased had come there in his car and left around
7 or 7.30 pm and later stating that the deceased left at around 10 pm, and
this leading them to suspect A-3. This statement of his was unable to be
discredited in his cross-examination. His further statement that for the
second time on 31st October 2000 in the presence of the police, A-3 admitted
to the deceased visiting his shop is consistent with what he stated in his

Crl.A.174 /2004 Page 19 of 40

previous statement to the police. On this part too no contradiction could be
elicited from PW-5 in his cross-examination.

47. We then have the evidence of Ashutosh (PW-6) who joined PW-1 in
searching for the deceased from 28th October 2000 evening itself. Even his
initial statement under
Section 161
Cr PC was recorded by PW-25 only on
5th November 2000. However, it will be recalled that he gave a complaint on
29th October 2000 itself (DD No.9A) in which he stated that the deceased
was last seen visiting A-3 in his shop at around 9.30 pm. While deposing in
Court, PW-6 spoke of A-3 admitting to them on 29th October 2000 when
they met him, that the deceased had visited his shop in the evening of 28 th
October 2000. PW-6 also deposed about the second time on 31 st October
2000 when A-3, in the presence of the police admitted to the deceased
coming to his shop and about his having committed a blunder. In his cross-
examination, no contradiction could be elicited from PW-6 about the
admission made by A-3 to him on 29th October 2000. In fact in his cross
examination PW-6 stated: "It is correct that the missing report (DD 9A) has
been lodged by me after having a talk with accd. Deepak." Therefore, both
PWs 5 and 6 have supported the case of the prosecution that the deceased
visited the shop of A-3 in the evening of 28th October 2000 and remained
there till around 10 pm.

48. Turning now to Raj Gupta (PW-23), it will be recalled that in the
complaint given by PW-1 to the police (Ex PW-1/1) PW-1 mentions
specifically that PW-23 was dropped off by the deceased at the Sai Baba
mandir on Lodhi Road and that the deceased told him that he was visiting a

Crl.A.174 /2004 Page 20 of 40

friend. On this material aspect of the deceased dropping him off and then
proceeding to South Delhi to visit A-3 no contradiction could be elicited
from PW-23 in his cross examination. But then again the statement of PW-
23 under
Section 161
Cr PC was recorded only on or after 9 th November
2000 by PW-26 after he took over the investigation.

49. The picture that emerges from the above discussion is that PWs 1, 5 and
6 are consistent that when he was met by them on 29th October 2000, A-3
admitted that the deceased had visited him on 28 th October 2000 in the
evening and was there till around 10 pm. However, this by itself will not
make this an incriminating circumstance vis-a vis A-3, since the time and
place of discovery of the dead body was not proximate to this event. It will
be recalled that the post mortem report placed the time of death at 3 days
prior thereto which takes it to the morning of 29th October 2000 and not the
night of 28th October 2000.

50. The fact that the dead body was found three days later on 31 st October
2000 and in a well in village Simbhavali in U.P. at a considerable distance
from Malviya Nagar makes this circumstance of last seen a rather weak
piece of evidence qua A-3. The legal position in this regard has been
explained by the Supreme Court in
State of U.P. v. Satish
(2005) 3 SCC
114, as under:

"The last seen theory comes into play where the time-gap
between the point of time when the accused and the deceased
were seen last alive and when the deceased is found dead is so
small that possibility of any person other than the accused being
the author of the crime becomes impossible. It would be

Crl.A.174 /2004 Page 21 of 40

difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap and
possibility of other persons coming in between exists. In the
absence of any other positive evidence to conclude that the
accused and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases.‟

51.
In
State of Karnataka v. Chand Basha
(2015) 3 ACR 3439, the
Supreme Court explained:

"This Court has time and again laid down the ingredients to be
made out by the prosecution to prove the „last seen together‟
theory. The Court for the purpose of arriving at a finding as to
whether the said offence has been committed or not, may take
into consideration the circumstantial evidence. However, while
doing so, it must be borne in mind that close proximity between
the last seen evidence and death should be clearly established."

Delay in recording the statements of witnesses

52. In the present case, the statements of most of the PWs under
Section 161

Cr PC were recorded on 5th November 2000 or thereafter, i.e. more than
seven days after the deceased went missing and at least five days after the
arrest of A-3 on 31st October 2000 and his purported disclosure soon
thereafter. The first IO, PW-25, was in charge of the investigation from 30 th
October till 9th November 2000. Therefore, the change of IO was also not an
excuse for not immediately recording the statement of the key witnesses i.e.
PWs 1, 5, 6 and 23. No convincing explanation has been offered by the
prosecution for this delay.

53.
In
Harbeer Singh v. Sheeshpal
(2016)16 SCC 418, the Supreme Court
explained the law in relation to the delay in recording the statements of
witnesses and the apparent effect of material improvements made by a
witness while deposing in the Court. It was observed:

Crl.A.174 /2004 Page 22 of 40

"The Explanation to
Section 162
Code of Criminal Procedure
provides that an omission to state a fact of circumstance in the
statement recorded by a police officer under
Section 161
Code
of Criminal Procedure, may amount to contradiction if the same
appears to be significant, and otherwise relevant having regard
to the context in which such omission occurs and whether any
omission amounts to a contradiction in the particular context
shall be a question of fact. Thus, while it is true that every
improvement is not fatal to the prosecution case, in cases where
an improvement creates a serious doubt about the truthfulness
or credibility of a witness, the defence may take advantage of
the same. [See
Ashok Vishnu Davare v. State of Maharashtra

(2004) 9 SCC 431;
Radha Kumar v. State of Bihar
(now
Jharkhand) (2005) 10 SCC 216;
Sunil Kumar Sambhudayal
Gupta (Dr.) v. State of Maharashtra
(2010) 13 SCC 657 and
Baldev Singh v. State of Punjab (2014) 12 SCC 473]. In our
view, the High Court had rightly considered these omissions as
material omissions amounting to contradictions covered by the
Explanation to
Section 162
Code of Criminal Procedure.

Moreover, it has also come in evidence that there was a delay of
15-16 days from the date of the incident in recording the
statements of PW3 and PW9 and the same was sought to be
unconvincingly explained by reference to the fact that the
family had to sit for shock meetings for 12 to 13 days. Needless
to say, we are not impressed by this explanation and feel that
the High Court was right in entertaining doubt in this regard.

As regards the incident of murder of the deceased, the
prosecution has produced six eye-witnesses to the same. The
argument raised against the reliance upon the testimony of these
witnesses pertains to the delay in the recording of their
statements by the police under
Section 161
of Code of Criminal
Procedure. In the present case, the date of occurrence was
21.12.1993 but the statements of PW 1and PW5 were recorded
after two days of incident, i.e., on 23.12.1993. The evidence of
PW6 was recorded on 26.12.1993 while the evidence of PW 11
was recorded after 10 days of incident, i.e., on 31.12.1993.

Crl.A.174 /2004 Page 23 of 40

Further, it is well-settled law that delay in recording the
statement of the witnesses does not necessarily discredit their
testimony. The Court may rely on such testimony if they are
cogent and credible and the delay is explained to the
satisfaction of the Court. [See
Ganeshlal v. State of
Maharashtra
(1992) 3 SCC 106;
Mohd. Khalid v. State of W.B.

(2002) 7 SCC 334;
Prithvi (Minor) v. Mam Raj
(
2004) 13 SCC
279 and Sidhartha Vashisht @ Manu Sharma v. State (NCT of
Delhi
) (2010) 6 SCC 1]."

54. While the evidence of all of the above witnesses do not have to be
rejected in entirety on account of the above lapse, the possible references
made by some of them to certain crucial incriminating aspects may require
to be rejected on account of this delay, particularly since by 5 th November
2000, the purported disclosure statement of A-3 was already available with
the IO. For example both PWs 5 and 6, in their statements under
Section 161

recorded on 5th November 2000, advert to A-3 stating on 31st October 2000
in the presence of the police to making a mistake. If their statements had
been recorded contemporaneously with the recording of the disclosure of A-
3 such statements would have been credible. Likewise, in his statement
under
Section 161
Cr PC recorded six days after the arrest of A-3, PW-23
discloses about the deceased telling him that A-3 owed him Rs. 80 to
90,000. Considering that this was supposed to provide the motive for the
offence, the fact that neither PW-6 in his initial complaint (DD No.9A) nor
PW-1 in his first complaint (Ex PW-1/1) makes any mention of this, makes
the evidence of PWs 5 and 6 on this aspect unreliable.

Recoveries not proved

55. Coming to the recovery of the dead body of the deceased on 31 st

Crl.A.174 /2004 Page 24 of 40

October, 2000 a large number of witnesses are said to have spoken about the
circumstance. As already noted by the trial Court three of the witnesses i.e.
Baljeet (PW-4), Mange Ram (PW-9) and Raj Pal Singh (PW-10) turned
hostile.

56. According to the prosecution, the disclosure was made by A-3 on 31st
October, 2000 and the recovery was purportedly made on the same date i.e.
31st October, 2000 as can be seen from the pointing out memo (Ex. PW-2/4).
Incidentally this has been attested by Constable Narendra, Constable Gurwir
Singh and Constable Ashok Kumar (PW-2). The only one who was
examined among these three was PW-2. Far from supporting the
prosecution, he actually made a mess of it as already noticed by the trial
Court. He gave a completely different version of the recovery having been
effected on 1st November, 2000. There appears to be confusion as regards
the precise date of the recovery which is evident from the following reply
given by him:

"On 31st October 2000 I had not gone in searching the four
persons, who, according to Deepak, were also involved in the
murder. I do not know as to whether SI Gurdev Singh had gone
in search of those four persons or not, on 31.10.2000. (Ld.
counsel for the accused submits that he has not been supplied
any statement of this witness recorded on 31st October 2000.
He submits that if there is any statement dated 31st October
2000 of this witness and of constable Narender and Constable
Gurvir Singh, the same be supplied. Ld. A.P.P. submits that as
per the case diary statements of these three constables were
recorded on 1st November 2000 and there is no statement dated
31st October 2000 of any of these three constables)."

57. Turning next to the evidence of SI Hukum Singh (PW-12), he admitted

Crl.A.174 /2004 Page 25 of 40

in his cross-examination that his statement was recorded by PW-25 only on
4th November, 2000. He further admitted as under:

"I had not obtained sign. or thumb impression of accused
Deepak Sarna in either daily diary or Panchnama Ex.PW5/1 to
establish the presence of accused Deepak Sarna. I had not
recorded any statement of accused Deepak Sarna to establish
his presence at Village Simbhavali."

58. It is doubtful whether he was at all present at the time of the recovery of
the dead body. In his cross-examination he stated:

"I had further stated that accused Deepak Sarna led us to the
well and pointed out to the same stating the above facts
confronted with statement Ex.PW 12/DA where the said facts
are not recorded specifically. Vol. I had mentioned this fact in
my panchayatnama Ex.PW5/1."

59. Likewise Constable Raghubir Singh (PW-11) also admitted that his
statement was recorded only on 4th November, 2000 i.e. long after the
recovery was already affected and not simultaneously along with the
recovery. He too made numerous improvements as is evident from the
following replies:

"I had stated in my statement under
section 161
Cr.PC that
accused Deepak Sarna was brought by Delhi police at PS
Simbhavali. (confronted with statement Ex.PW11/DA where it
is not mentioned that accd. Deepak Sarna was brought to PS
Simbhavali.)

I had also stated in my statement that the accd. Deepak Sarna
led us to the well and told in my presence that he after killing
deceased Manish had thrown the dead body in the said well.
(confronted with Ex. PW11/DA where this fact is not recorded).

I do not remember whether I stated in my statement
u/s 161

Cr.P.C. that accd. Deepak Sarna was present when the dead

Crl.A.174 /2004 Page 26 of 40

body was lifted out the well. The said fact is not mentioned in
Ex. PW11/DA."

60. The suggestion to PW-11, which he denied, was that the local villagers
had already taken out the dead body from the well and this information was
already available with the police of PS Simbhavali even before the Delhi
Police could reach there. The prosecution has not been able to explain why
the statements of PWs 11 and 12 under
Section 161
Cr PC were not
recorded on 31st October 2000 itself but only on 4th November 2000. They
were also not witnesses to the recovery memo.

61. Two other PWs who are supposed to have gone with the police for the
recovery of the dead body were PWs 5 and 6. Yet, neither of them were
witnesses to any of the recovery memos drawn up in that regard.

62. As far as Paramjeet Singh (PW-5) was concerned, his statement to the
police (Ex.PW-5/DA) was recorded only on 5th November, 2000, long after
the recovery of the dead body had already been affected. He too turned out
to be an unreliable witness as is evident from the answers pursuant to which
he was confronted in the Court with his previous statement:

"I had told the police official that from the shop we had gone
to the P.S. (confronted with Ex.PW5/DA where it is not so
recorded). I had told the police that from the P.S. Deepak
Sarna and police officials had gone to village Simbhavali
(Confronted with Ex.PW5/DA where it is not so recorded).
(The statement Ex.PW5/DA shall be read at the time of final
arguments to appreciate this particular fact). I had told the
police officials that accd. Deepak Sarna had pointed out the
well in village Simbhavali and told that the dead body was in
that well. (Confronted with Ex.PW5/DA where it is not, so
recorded).

Crl.A.174 /2004 Page 27 of 40

I had told the police that I had also seen the dead body
floating in the well (Confronted with Ex.PW5/DA where it
is not so recorded). In village Simbhavali my statement was
not recorded by the police. I had signed the panchnama. In
my presence police officials, had not obtained signature of
Deepak Sarna on any paper prepared in village Simbhavali.
In my presence police had not prepared any document to
establish the fact that accd. Deepak Sarna had gone to
Village Simbhavali."

63. Interestingly, on this aspect PW-6 deposed in the Court that he, PW-5,
Alok Srivastava and some others followed the police officials to Simbhavali
village in a car and found A-3 there with the police officials and that A-3
"had pointed out the well, and told that the dead body was in that well." But
this deposition was by way of improvement as was evident from the
following reply in his cross-examination:

"I had stated to the police in my statement dt. 5. 11. 2000 that
accd. Deepak had told (disclosed) on 31st Oct. 2000 that he can
get the dead body recovered from the well. (confronted with Ex.
PW6/DA where it is not recorded that accd. Deepak had
disclosed that he can get the dead body recovered from the
well); (voltd. The statement was recorded by the police officials
and not by me). I had dictated my statement to the police
officials. I do not remember as to whether my statement had
been read over to me or not. I do not remember as to whether I
got incorporated in my statement Ex.PW6/DA that I had been
read over the statement and the same is correct. (confronted
with portion A to A of Ex.PW6/DA where it is so recorded). It
is wrong to suggest that I am deliberately taking the shelter
under the head 'I do not remember' to-meet out the material
omissions. I had told to police officials that accd. Deepak had
pointed out towards the well in Village Simbhavali and told us
that the dead body of Manish was lying in that well.

(confronted with Ex.PW6/DA, where it is not so recorded)."

Crl.A.174 /2004 Page 28 of 40

64. PW-25 himself was unclear on the question of recovery of the dead body
which was supposedly at the instance of A-3, PW-25 stated as under:

"So far as I remember I did not record stt. U/S 161
Cr.P.C
. of
any witness on 31.10.2000. I had recorded a D.D. Entry in my
own hand-writing in respect of my visit to village Simbhavali
on 31.10.2000. I do not remember whether I recorded any DD
Entry at P.S. Simbhavali on 31.10.2000 in respect of my arrival
at Simbhavali. I do not remember whether I got signatures of
accd. Deepak Sarna on any official record of P.S. Simbhavali or
at the spot in respect of the fact that accused Deepak Sarna was
taken at Village Simbhavali on 31.10.2000."

65. The panchnama (Ex.PW-5/1) shows that it was prepared by a policeman
at PS Simbhavali and it is not signed by any of the relatives or acquaintances
of the deceased who are said to have been present there. It refers to certain
enclosures, none of which appear to have been made part of the case
property. As regards the place of occurrence and as far as the site plan of the
well itself, it appears to be drawn up on 4th November, 2000 whereas the
visit to that place was undertaken on 31st October, 2000. The stark fact is
that all of the seizure memos concerning A-3 were witnessed by three
policemen of whom two were not examined. The one who was viz., PW-2
failed to support the prosecution. The Court is therefore not satisfied that the
evidence placed on record proves the recovery of the dead body at the
instance of A-3.

66. The recovery of the keys and the jeans pant at the instance of A-1 and A-
2 has already been disbelieved by the trial Court and therefore, this
circumstance also cannot be used to connect A-3, the present Appellant,

Crl.A.174 /2004 Page 29 of 40

with the crime. Moreover PW-25 was unclear whether it was A-3, who had
told the police about throwing the keys and the jeans pant in the well. The
following answers given by him bring this out:

"On 31.10.2000 when I recorded the disc. Stt. of accused
Deepak Sarna I came to know the fact that pant containing keys
of deceased were thrown in a well. I have gone through the
disc. stt. dt. 31.10.2000 Ex.P.W.2/1 There is no such stt.
regarding throwing of pant with keys of deceased Manish
Choudhary into well."

67. As far as the recovery of the car of the deceased is concerned, it is plain
that the said car had already been recovered by the police at PS Dewat
District, Ghaziabad. No blood stains were found in either that car or the car
of A-3. The car so recovered was not sent to the FSL for an opinion. No
chance prints were recovered from such cars. As far as the place of the
incident itself, the site plan (Ex.PW-25/B) has no signature of any witness.
No blood stains were found at the spot. The signature of A-3 is also not
found there. This is true also of the site plan of the place of recovery of the
dead body. It has already been noticed that the weapon of the offence was
not recovered. Even the Call Detail Records of the mobile phones of the
deceased and of A-3 or even PWs 1 and 6 were not collected. These might
have given the police valuable clues of the movement of the deceased and
the others on the date he went missing. Not insignificantly, the trial Court
has itself commented adversely on the quality of investigation and has
passed strictures against the IOs in the case.

Motive

68. The Court next examines the motive for the crime. There were three

Crl.A.174 /2004 Page 30 of 40

reasons given by the prosecution to explain the motive. One was that the
deceased was in a relationship with the sister of A-3 and A-3 was unhappy
with this. There is no iota of evidence to prove this motive.

69. The second reason is that the deceased had given A-3 a loan of Rs.
80,000 to 90,000/- which he wanted to recover. This emerged both in the
statement of PW-23 recorded on or after 9th November 2000 (Ex. PW-
23/DA) and in the supplementary statement of PW-1 (Ex. PW-1/DA)
recorded by SI Neeraj Kumar (PW-26) on or after 9th November, 2000 when
he took over the investigation. This was not disclosed at the first available
opportunity either by PW-6 whose complaint (DD 9A) was given on 29 th
October 2000 or PW-1 who gave a complaint on 30th October 2000. These
statements were inadmissible as evidence. The legal position has been
explained in
V.K. Mishra v. State of Uttarakhand
(2015) 9 SCC 588 as
under:

"15.
Section 162
Code of Criminal Procedure bars use of
statement of witnesses recorded by the police except for the
limited purpose of contradiction of such witnesses as indicated
there. The statement made by a witness before the police Under

Section 161(1)
Code of Criminal Procedure can be used only
for the purpose of contradicting such witness on what he has
stated at the trial as
laid down in
the proviso to
Section 161(1)

Code of Criminal Procedure. The statements Under
Section 161

Code of Criminal Procedure recorded during the investigation
are not substantive pieces of evidence but can be used primarily
for the limited purpose: (i) of contradicting such witness by an
accused Under
Section 145
of Evidence Act; (ii) the
contradiction of such witness also by the prosecution but with
the leave of the Court and (iii) the re-examination of the witness
if necessary.

Crl.A.174 /2004 Page 31 of 40

16. Court cannot suo motu make use of statements to police not
proved and ask question with reference to them which are
inconsistent with the testimony of the witness in the court. The
words in
Section 162
Code of Criminal Procedure "if duly
proved" clearly show that the record of the statement of
witnesses cannot be admitted in evidence straightway nor can
be looked into but they must be duly proved for the purpose of
contradiction by eliciting admission from the witness during
cross-examination and also during the cross-examination of the
investigating officer. Statement before the investigating officer
can be used for contradiction but only after strict compliance
with
Section 145
of Evidence Act that is by drawing attention
to the parts intended for contradiction."

70. The third reason viz., the borrowing of 4 to 5 lakhs by A-3 from the
deceased has been disbelieved even by the trial Court. PW-1 has admitted
that he did not mention in his statement to the police about the deceased
wearing a gold kada, diamond ring, gold chain and having a purse
containing money and credit cards or the suit and new shirt being in the car.
In any case, none of these items were recovered by the police. Consequently,
the Court is not satisfied that the prosecution has been able to prove the
motive for the commission of the offence. In a case of circumstantial
evidence, where the other circumstances have not been cogently and
conclusively proved by the prosecution, the motive for the commission of
crime is a critical link and it becomes incumbent on the prosecution to prove
it if it has to show that the complete chain of circumstances points
unmistakably to the guilt of the accused.
In
Arjun Marik v. State of Bihar

1994 Supp (2) SCC 372, the Supreme Court explained:

"...mere absence of proof of motive for commission of a crime
cannot be a ground to presume the innocence of an accused if
the involvement of the accused is otherwise established. But it

Crl.A.174 /2004 Page 32 of 40

has to be remembered that in incidents in which the only
evidence available is circumstantial evidence then in that event
the motive does assume importance if it is established from the
evidence on record that the accused had a strong motive and
also an opportunity to commit the crime and the established
circumstances along with the explanation of the accused, if any,
exclude the reasonable possibility of anyone else being the
perpetrator of the crime then the chain of evidence may be
considered to show that within all human probability the crime
must have been committed by the accused."

71. The result of the above discussion is that among the circumstances
outlined by the trial Court, except the evidence that the deceased was
perhaps in the company of A-3 till around 10 pm on the night of 28 th
October 2000, the other links in the chain of circumstances viz., the recovery
of the dead body, the recovery of the clothes and the car of the deceased at
the instance of A-3; and importantly, the motive for the commission of the
crime have not been conclusively proved by the prosecution. In other words
the prosecution has failed to show that it is A-3 and A-3 alone who is
responsible for the death of the deceased.

72.
In
Subash Chand v. State of Rajasthan
2001 Supp (4) SCR 163, the
Supreme Court explained that in a case of circumstantial evidence, the Court
should:

"...proceed to examine each of the pieces of incriminating
circumstantial evidence so as to find out if each one of the
circumstantial evidence is proved individually and whether
collectively it forges such a chain of incriminating
circumstances as would fasten the guilt on the accused beyond
by shadow of reasonable doubt."

73. Further in the same decision, the Supreme Court observed:

Crl.A.174 /2004 Page 33 of 40

"Though the offence is gruesome and revolts the human
conscience but an accused can be convicted only on legal
evidence and if only a chain of circumstantial evidence has been
so forged as to rule out the possibility of any other reasonable
hypothesis excepting the guilt of the accused.
In
Shankarlal
Gyarasilal Dixit v. State of Maharashtra
AIR 1981 SC 765, this
Court cautioned - "human nature is too willing, when faced with
brutal crimes, to spin stories out of strong suspicions". This
Court has held time and again that between may be true and
must be true there is a long distance to travel which must be
covered by clear, cogent and unimpeachable evidence by the
prosecution before an accused is condemned a convict."

74. Incidentally, the case of the prosecution throughout was that five
persons, including A-3, were involved in the murder. Against two of the
five, viz., Arun and Bunti, no charges were framed. The charges were that
A-1, A-2 and A-3 entered into a criminal conspiracy and pursuant thereto all
three of them abducted and killed the deceased and then threw away the
body in a well to conceal their crime. With the trial Court having acquitted
both A-1 and A-2
the above case
came apart. The trial Court has proceeded
on the basis that notwithstanding the acquittal of A-1 and A-2, the remaining
accused viz., A-3 can still be convicted as if he alone abducted and killed the
deceased and all by himself disposed of the dead body. But then, that was
never the case of the prosecution.

No substantive charge against A-3 under Sections 302, 364 and 201 IPC

75. This brings us to the question of the error committed by the trial Court in
convicting A-3 for the substantive offence under
Sections 302
,
and
IPC although no charge to the effect was framed against him. As pointed out
by Mr. Dubey, there were two charges framed against all three accused. The

Crl.A.174 /2004 Page 34 of 40

first was for the offence of criminal conspiracy punishable under
Section
-B
IPC
and the second for the offences punishable under
Sections
/
/
/
IPC read with
Section 120-B
IPC. With A-1 and A-2
having been acquitted and that acquittal not having been challenged by the
State, the charge under
Section 120-B
IPC had to fail even against A-3.

76. The second charge was against all the three accused collectively and not
individually against the present Appellant (A-3). In other words, there was
no charge against A-3 alone for the substantive offence punishable under

Sections 302
,
and
IPC. No move was made by the prosecution to
amend the charges to that effect.

77. This is indeed a fatal flaw as explained in several judgments of the
Supreme Court.
In
Nanak Chand v. State of Punjab
AIR 1955 SC 274, the
facts were that the Appellant along with six other co-accused was charged
with committing the offences under
Section 148
and Section 302 read with

Section 149
IPC. The trial Court while acquitting three of the accused,
convicted the Appellant and three others for the offence under Section 302
read with
Section 34
IPC. In the further appeal, the High Court acquitted
three of the remaining accused of the offence under Section 302 read with
IPC
and convicted them for the offence under
Section 323
IPC. It was
held that
Section 34
IPC did not apply. The High Court convicted the
Appellant alone for the substantive offence under
Section 302
IPC. The
Supreme Court accepted the submission of the Appellant that this was
impermissible in law. It was held: "The High Court could not do what the
trial Court itself could not do, namely, convict under Section 302, as no

Crl.A.174 /2004 Page 35 of 40

separate charge had been framed under that section."

78. The Supreme Court in
Nanak Chand v. State of Punjab
(supra) then
dealt with the plea of the prosecution that this at best was an error in the
framing of the charge and therefore a curable irregularity. Rejecting that
plea, the Supreme Court held (referring to the corresponding provisions of
the 1898 Cr PC):

"In the present case, however, there is no question of any
error, omission or irregularity in the charge because no charge
under
section 302
of the Indian Penal Code was in fact
framed.
Section 232
of the Code of Criminal Procedure
permits an appellate court or a court of revision, if satisfied
that any person convicted of an offence was misled in his
defence in the absence of a charge or by an error in the charge,
to direct a new trial to be had upon a charge framed in
whatever manner it thinks fit. In the present case we are of the
opinion that there was an illegality and not an irregularity
curable by the provisions of
sections 535
and
of the Code
of Criminal Procedure. Assuming, however, for a moment that
there was merely an irregularity which was curable we are
satisfied that, in the circum- stances of the present case, the
irregularity is not curable because the appellant was misled in
his defence by the absence of a charge under
section 302of
the
Indian Penal Code.

By framing a charge under section 302, read with
section
of the Indian Penal Code against the appellant, the Court
indicated that it was not charging the appellant with the
offence of murder and to convict him for murder and sentence
him under
section 302
of the Indian Penal Code was to convict
him of an offence with which he had not been charged. In
defending himself the appellant was not called upon to meet
such a charge and in his defence he may well have considered
it unnecessary to concentrate on that part of the prosecution
case."

Crl.A.174 /2004 Page 36 of 40

79.
In
Suraj Pal v. State of U.P.
AIR 1955 SC 419, the facts were that the
Appellant and 19 other accused were charged with committing offences
under
Sections 147
,
/
,
/
and
/
IPC. While the trial
Court held all the accused guilty of the various offences, in appeal the High
Court set aside the conviction of 10 of the 20 accused. Of the remaining 10
the High Court found that nine of them could not be convicted either under
Section 307/
or Section 302/149IPC. They were convicted for the
offence under
Section 323
/
IPC. However, the High Court held the
Appellant alone guilty of the substantive offences under
Sections 307
and
IPC. The Supreme Court noted that the specific charges framed referred
to all of the accused acting together pursuant to a common object and firing
upon the deceased. There was no amendment to the charge to call upon the
Appellant to defend himself for the substantive charge for the offences under

Section 302
and
IPC as if he was acting alone. The Supreme Court held
this to be unsustainable in law and observed:

"The appellant might well have relied on the absence of any
such amendment as being an indication that he was not called
upon to defend himself on the footing of his being the author of
the pistol fire. In a case so serious as that which involves the
sentences of transportation for life, and of death, and
particularly in a case like the present one, where the death
sentence has been awarded in the trial court by distinguishing
this appellant from all the other accused in respect of his
individual act by way of pistol fire, it is difficult to say that the
accused has not been prejudiced by the absence of specific
charges under
sections 307
and
, Indian Penal Code.

Further, the medical evidence indicates that P.W. 2 as well as
the deceased Surajdin had gun-shot wounds on their person.
The evidence of the Doctor is to the effect that these wounds

Crl.A.174 /2004 Page 37 of 40

may have been caused by a country pistol which, it is alleged,
the appellant had in his hand. It has been suggested on behalf of
the defence that the Medical Officer was not competent to speak
about it and that if the prosecution wanted to rely thereupon,
they should have called an arms expert to speak to the same.
Whether or not this comment is legitimate, it is clear that if the
appellant is to be found directly responsible for inflicting the
wounds, noted as gun-shot wounds by the Medical Officer, he
might well have availed himself of the opportunity to elucidate,
by cross-examination or positive defence, the nature of the fire-
arm which would have caused the actual injuries found on the
bodies of PW-2 and of deceased Surajdin. In all the
circumstances above noticed, we are satisfied that the
absence of specific charges against the appellant
under
sections 307
and
, Indian Penal Code has
materially prejudiced him. We must accordingly set aside the
convictions and sentences of the appellant under
sections
and
of the Indian Penal Code." (emphasis supplied)

80. Again in
Subran @ Subramaniam v. State of Kerala
(1993) 3 SCC 32
the Supreme Court explained the legal position as under:

"11. Since, appellant 1 Subran had not been charged for the
substantive offence of murder under
Section 302
IPC, even the
trial court, which tried the six accused persons, was not justified
in recording a conviction against him for the substantive
offence of murder punishable under
Section 302
IPC after
framing a charge against him for the offence under Section 302
read with
Section 149
IPC only. A person charged for an
offence under
Section 302
IPC read with
Section 149
cannot be
convicted, of the substantive offence under
Section 302
, IPC
without a specific charge having been framed against him as
envisaged by law. Conviction for the substantive offence in
such a case is unjustified because an accused might be misled in
his defence by the absence of the charge for the substantive
offence under
Section 302
IPC simpliciter and, therefore, in
defending himself, he cannot be said to have been called upon
to meet that charge and he could very well have considered it

Crl.A.174 /2004 Page 38 of 40

unnecessary to concentrate on that part of the prosecution case
during the cross-examination of the prosecution witnesses.
Therefore, the conviction of the first appellant for an offence
under Section 302 was not permissible."

81. In State of West Bengal v. Bindu Laxman Dass 1995 SCC (Crl) 175,
the husband and wife were both charged with committing the offence under

Section 302
/
IPC. With the husband being acquitted, the wife could not
have been convicted for the substantive offence. The Supreme Court
observed:

"Both husband and wife were charged with an offence
under Section 302 read with
Section 34
I.P.C. The charge which
was based on the common intention of the two failed with the
acquittal of the husband and there being no charge
under Section 302 simpliciter against the wife she could not be
convicted. In any case there is no evidence on the record to
show that she independently committed the offence."

82. In the present case, admittedly there was no charge framed against
the Appellant (A-3) for the substantive offences under
Sections 302
,
and
IPC. Consequently, the trial Court could not have
proceeded to convict him for those offences.

Conclusion

83. The net result of the above discussion is that the prosecution has not
been able to prove each of the links in the chain of circumstances or that the
proved circumstances point unmistakably to the guilt of the Appellant. In
any event, the trial Court erred in convicting the Appellant for the
substantive offences under
Sections 302
,
and
IPC when there was
no charge framed against him to that effect.

Crl.A.174 /2004 Page 39 of 40

84. The Appellant is accordingly acquitted of the offences punishable under

Sections 302
,
and
IPC. The impugned judgment of the trial Court
and the order on sentence are accordingly set aside.

85. The appeal is allowed. The bail bonds and surety bonds of the Appellant
stand discharged.

86. The Appellant will fulfil the requirement of
Section 437-A
Cr.PC to the
satisfaction of the trial Court at the earliest.

87. The trial Court record be returned together with a certified copy of the
judgment.

S. MURALIDHAR, J.

VINOD GOEL J.

OCTOBER 30, 2018
rd/mw

Crl.A.174 /2004 Page 40 of 40