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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.729   OF  2011

H.D. SIKAND (D) THROUGH L.RS. …      APPELLANT(S)

:Versus: CENTRAL BUREAU OF INVESTIGATION AND ANR. …  RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.730   OF  2011

CENTRAL BUREAU OF INVESTIGATION …      APPELLANT(S)

:Versus:

LT. COL. S.J. CHAUDHARY …  RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These appeals, by special leave, have been filed by the

appellants  challenging  the  judgment  dated  15th May,  2009,

passed by the High Court of Delhi at New Delhi in Criminal

Appeal No.456 of 2008, whereby the High Court has set aside

the  judgment  and  order  dated  28.04.2008  passed  by  the

Additional  Sessions Judge, Delhi,  and acquitted Respondent

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No.2 of  the charge of  murder  as also  of  the  charges under

Sections 3 & 4 of the Explosive Substances Act, 1908.     

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

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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

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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

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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.

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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

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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

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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).

7. We have heard the learned counsel appearing on behalf

of the parties and perused the judgment passed by the High

Court as also the judgment passed by the Trial Court. Learned

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counsel  appearing  on  behalf  of  the  appellants  in  Criminal

Appeal No.729 of 2011 submitted that after the explosion took

place in the house of Kishan Sikand, the Delhi Police took over

the investigation but except  recording some statements and

formal actions, did not do any worthwhile investigation. This is

clear from the following:  

(a)  On  3.10.1982  Shri  P.P.  Koahar  (PW-72)  recorded  the

statement  of  Rani  Chaudhary,  Vijay  Ram and  Flaurance

Homs and others.  He  also  recorded  statement  of  Suresh

Gopal on 5.10.1982. He also recorded some statements on

other days.  

(b) On 4.10.1982, search was conducted of the premises i.e.

98,  Sunder  Nagar  and  the  Investigating  Officer  took

possession of the documents on 6.10.1982. He did not even

prepare  proper  Memo  of  the  said  documents.  All  those

documents are missing;  and the documents said to have

been recovered by PW-72 on 4.10.1982 are not the part of

charge-sheet.  During  the  cross-examination,  R.P.  Kochar,

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Investigating  Officer  himself  admitted  that  from the  very

beginning he suspected the accused as he stated:  “till the

investigation was me, I could not collect clinching evidence

to arrest the accused”, “from the very beginning I suspected

him to be the perpetrator of crime”.

8. Learned  counsel  further  submitted  that  even  after  the

Court’s  order  and  search  warrant  issued  for  search  of  the

house of Respondent No.2, only search was conducted by the

police  and  thereafter  the  Investigating  Officer  did  not  do

anything  except  collecting  75  type  prints  of  different

typewriters  or  specimens,  which  had no  relevance  with  the

crime. The police did it only to pretend that they were doing

some  investigation.  According  to  the  Investigating  Officer

himself, it came to his knowledge that a parcel was spotted on

the staircase on 25.09.1982 for the first time, but even after

such   fact  came  to  his  notice,  he  did  not  make  any

investigation  and  did  not  even  record  the  statement  of  the

person giving  such information.  When there  was no proper

investigation by the Crime Branch and the criminal remained

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undetected,  on  the  request  of  the  appellant,  the  case  was

transferred  to  the  CBI  and  only  thereafter  the  real

investigation started and in this manner the precious time for

collection of evidence was lost.   

9. Learned  counsel  further  submitted  that  there  were

strained  relations  between  Rani  Chaudhary  and  accused

Respondent  No.2  and  despite  best  efforts  to  maintain  her

matrimonial  ties  with the accused Respondent,  the accused

Respondent continued to ill  treat her and even tortured her

both mentally and physically, forcing her to shift to Delhi.  She

was beaten to the extent of causing fractures of three bones.

The accused Respondent threatened the deceased and Rani

Chaudhary  with  dire  consequences  to  the  extent  of  bodily

harming and killing Kishan Sikand on a number of occasions.

The accused Respondent had the grudge and motive to kill

Kishan Sikand. Learned counsel submitted that the marriage

between  Rani  and  accused  Respondent  could  not  continue

harmoniously  and  accused  Respondent  used  to  physically

assault and mentally torture Rani and on account of incessant

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harassment and physical torture by accused Respondent, Rani

lodged a complaint  with the  concerned Army Authorities  in

February/March  1979.  On  coming  to  know  about  this

complaint,  the  accused  Respondent  came  to  Delhi  from

Bangalore  where  he  was  posted  and  Rani  was  mercilessly

beaten and she received injuries including fractures of 3 ribs

on the left  side.  Rani  lodged a report  at  the Police  Station,

Defence Colony and was medically examined at AIIMS. Mrs.

Devender Kaur, mother-in-law of Rani (by the first marriage)

also  lodged  a  report  at  the  Police  Station  and  complained

about  the  conduct  of  accused Respondent.  It  is  also stated

that the accused went to the house of Rani and confined her

inside  the  house  but  she  escaped  by  jumping  out  of  the

window,  in  the  process  she  sustained  sprain  in  her  ankle.

Thereafter,  Rani  filed  a  divorce  petition  on  the  ground  of

cruelty and torture. The Trial Court passed a decree of divorce

which was set aside by the High Court and upon filing special

leave petition, this Court o n 24.08.1982 restored the decree of

divorce passed by the Trial Court. In the meantime, Rani and

Kishan Sikand became good friends and Rani  started living

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with Kishan Sikand at 98, Sunder Nagar, New Delhi.  There

was  an  understanding  between  them  that  they  would  get

married  after  the  divorce  was  finalized.  The  accused-

Respondent threatened Rani not to live with Kishan Sikand

and  in  case  she  did  not  move  out  of  the  house  of  Kishan

Sikand, he would kill her and Kishan Sikand. The accused-

Respondent also told H.D. Sikand, father of Kishan Sikand, to

throw out  Rani  from his house,  otherwise he would cripple

Kishan  Sikand  by  breaking  his  bones.  The  accused-

Respondent also visited H.D. Sikand in the office and he was

very  annoyed  at  that  time.  Accused-Respondent  also

telephoned Kishan Sikand and told him that if he did not turn

Rani out of his house within 24 hours, he would kill him. This

was  intimated  by  Kishan  Sikand  to  Rani  (PW-1),  Sudhir

Khanna (PW-10), H.D. Sikand (PW-19), M.M. Thapar (PW-37),

Leelu Mool Chandani (PW-39) and Gajbir Singh (PW-44). The

accused-Respondent gave Rani four options:

(a) to live together

(b) to separate peacefully

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(c) to separate in an ugly manner

(d) to create total chaos

The accused-Respondent threatened that if she did not agree

for one of the first three options then chaos would follow. This

was  recorded  in  tape  recorder.  The  accused-Respondent

lodged a  false  report  in  Police  Station,  Nizamuddin alleging

that Rani has been forcibly confined by Kishan Sikand at his

house. Om Sagar, Station House Officer went to the house of

Kishan Sikand, met Rani  and inquired from her if  she was

forcibly  detained to  which Rani  replied  in  the  negative  and

gave her statement in writing.  

10. Learned  counsel  for  the  appellants  further  submitted

that the  finding recorded by the Trial Court regarding ‘threat

to deceased by the accused-respondent’ and ‘motive’  are as

follows:

Threat to deceased by the accused-Respondent  

“I have no reason to disbelieve the witnesses about the threats given to Rani Chaudhary and deceased Sikand.”

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Motive

“Believing  the  deposition  of  Ms.  Rani  Chaudhary, H.D.  Sikand  and  others  witnesses,  I  find  that accused had motive to kill not only Rani Chaudhary but also deceased Kishan Sikand so that they don’t live together against the wishes of the accused.”  

Learned  counsel  submitted  that  the  High  Court  while

accepting  the  aforesaid  findings  on  the  second  aspect  i.e.

Motive,  has  considered  three  letters  dated  2.10.1980,

16.11.1980  and  3.03.1982 out  of  context  inasmuch as  the

said  letters  cannot  be  read  in  isolation,  particularly  in  the

factual  background of  the  relations  and the  conduct  of  the

respondent and his behavior with Rani Chaudhary and Kishan

Sikand.  

11. Learned counsel for the appellants also submitted that

the High Court disbelieved the evidence of Mohd. Shafi (PW-7)

who saw the accused-Respondent coming out of the house of

the deceased and going towards Sunder Nagar market on the

reasoning that Mohd. Shafi who had gone to first floor of 98,

Sunder Nagar, to give keys ought to have noticed the existence

of  parcel,  which  he  did  not  mention.   Learned  counsel

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submitted that outsiders normally ignore anything lying on the

staircase or other place of  house inasmuch as they are not

concerned  with  the  same,  particularly  when  a  number  of

persons  are  living  in  the  same  house.   Learned  counsel

submitted  that  the  High  Court  has  also  disbelieved  the

testimony of this witness, firstly, on account of the delay and

secondly, that he was the employee of Sikand Motors and that

neither  Suresh  Gopal  (PW-3)  nor  Mohd.  Shafi  (PW-7)  had

mentioned  each  other’s  presence  on  the  spot  in  their  161

Cr.P.C. statements recorded by the Police.  It  was submitted

that no question was put as to why Mohd. Shafi did not inform

the Police about the visit of the accused to the house of Sikand

on 25th September, 1982 or that whether he had noticed the

presence of parcel or not.  

12. Learned counsel appearing on behalf of Respondent No.2

submitted that the Trial Court has convicted Respondent No.2

for the offence of murder only on the basis of circumstantial

evidence and the conviction has been overturned by a Division

Bench of the Delhi High Court. It is further submitted that the

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circumstances relied upon by the prosecution have not been

satisfactorily  established  against  Respondent  No.2  and the

circumstances  said  to  have  been  established  against

Respondent  No.2  do  not  provide  a  complete  chain  that  is

required to prove his guilt. The standard of proof required to

convict a person in a case of circumstantial evidence, has not

been met either. It is submitted by the learned counsel that

the law requires that the circumstances relied upon in support

of the conviction must be fully established, and that the chain

of  evidence  furnished  by  those  circumstances  must  be  so

complete,  so  as  not  to  leave  any  reasonable  doubt  for  a

conclusion, consistent with the innocence of the accused. The

circumstances  from  which  the  conclusion  of  guilt  is  to  be

drawn, must not only be fully established, but also be of  a

conclusive nature and consistent only with the hypothesis of

the guilt of the accused and they must not be capable of being

explained by way of any other hypothesis except the guilt of

the  accused,  and  when  all  the  said  circumstances  are

collectively  considered,  the  same  must  lead  only  to  the

irresistible  conclusion  that  the  accused  alone  is  the

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perpetrator of the crime in question, which is not the case in

the present appeals, the learned counsel submitted.  

13. Learned  counsel  for  Respondent  No.2  next  submitted

that the contention of the appellant that the Crime Branch of

Delhi  Police  did  not  investigate  the  case  properly  and with

promptitude  due  to  the  influence  of  Lt.  Col.  Chaudhary

(Respondent  No.2)  whose  father  was  former  I.G.  in  Delhi

Police, is an ex facie baseless and unfounded allegation. The

father of Respondent No.2 had passed away long back in 1956

and the I.O. Inspector Kochar had not even joined Delhi Police

by  then  and  it  is  a  farfetched  allegation  that  he  had  been

influenced by the association of Lt.  Col.  Chaudhary. In any

case, the prosecution has not put any suggestion to Inspector

Kochar  in  his  testimony  that  he  wrongly  recorded  the

statement  of  any  witness  or  that  Lt.  Col.  Chaudhary  had

influenced him in any manner.  

14. Learned counsel for Respondent No.2 further contended

that the prosecution’s whole case is not based on any concrete

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evidence  or  eye-witness  testimony  but  on  presumption  and

imputation of  motive to Lt.  Col.  Chaudhary that  he had an

animus  towards  the  deceased  Kishan  Sikand  due  to  his

ex-wife  Rani  Chaudhary  living  with  Kishan  Sikand.   This

cannot be true for the following reasons:  

(a)  First,  if  the  reason  of  anyone’s  ex-spouse  living

with/marrying another person led to people killing each

other, then it would have already resulted in an unholy

mess of biblical proportions.  

(b)  Second,  all  the  three  protagonists  namely  Lt.  Col.

Chaudhary,  Rani  Chaudhary  and  Kishan  Sikand  had

experience of previous marriages – the marriage between

Lt.  Col.  Chaudhary  and  Rani  Chaudhary  was  second

marriage for both as he was a divorcee and she was a

widow  and  out  of  previous  wedlock  she  had  two

daughters  and  out  of  the  wedlock  with  Lt.  Col.

Chaudhary they had one daughter; and Kishan Sikand

was also a divorcee and father to a son. So, divorce and

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living apart was not a new concept to any of the three

parties so as to motivate them to kill someone.  

(c)  Third, due to the differences between husband and wife,

Rani Chaudhary left Bangalore where Lt. Col. Chaudhary

was  posted  and  came  to  Delhi  and  started  living

separately from 1976 itself, and subsequently she started

living with Kishan Sikand at his house. Other than his

concern for the future and upbringing of the three young

daughters, Lt. Col. Chaudhary was already used to a life

without Rani Chaudhary who had been living apart from

him since 1976. Therefore, there was no sudden trigger

to plan in such detail as alleged and kill Kishan Sikand.   

(d)  Fourth,  to  suggest  that  merely  because  Lt.  Col.

Chaudhary  and Rani  Chaudhary went  through divorce

proceedings and some things were said during that time,

he would decide all of  a sudden in 1982 to kill Kishan

Sikand, is too far-fetched and conjectural, and certainly

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not  on  which  a  conviction  under  Section  302  can  be

based.   

(e)  Fifth,  letters  dated  22.10.80,  16.11.80  and  03.03.82

marked as Ex.PW-1/FF, Ex.PW-1/GG and Ex.PW-1/NN

respectively,  addressed  by  Lt.  Col.  Chaudhary  to  Rani

Chaudhary show that he had reconciled to a life without

her but was concerned for the well being and future of

the three daughters.   

15. It  is  further  submitted  by  the  learned  counsel  for

Respondent No.2 that the testimony of PW-7 Mohd. Shafi is

false, manufactured and cannot be relied upon, and that he

was a planted witness is clear from the following facts:  

(a) First,  it  is  most  pertinent  to  point  out  that  if  the

testimony of  the  said  sole  so-called  eye-witness  in  the

whole case PW-7 is taken at its face value even then it is

nowhere stated that he saw Lt. Col. Chaudhary with any

parcel let alone a parcel bomb or that he saw Lt.  Col.

Chaudhary delivering anything to the deceased’s house;

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he has  merely  stated  that  he  saw Lt.  Col.  Chaudhary

coming  out  of  the  gate  of  the  deceased  house  on

25.09.1982.  There  is  neither  any  eye-witness  nor  any

evidence to show that the so called booby trap parcel was

actually delivered, or that it was delivered on this day, or

that anybody received the said parcel, or that anybody

saw Lt. Col. Chaudhary delivering anything let alone a

booby trap parcel to the deceased’s residence.  

(b) Second, there was no eye-witness available as long as the

Delhi Police investigated the case. However, as soon as

the CBI took over the case, two Link Witnesses, magically

appear – PW-7 Mohd. Shafi and PW-9 Jug Lal. Even Jug

Lal did not support the prosecution story in Court. He

was declared hostile.  

(c) Third, PW-7 Mohd. Shafi comes into the picture only on

16.07.1983 – after nine and half months of the incident –

when his 161 Cr.P.C. statement was recorded by the CBI.

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PW-7 coming up with a belated statement casts serious

doubts on his truthfulness.  

Learned  counsel  argued  that  delay  in  recording  the

statements of the eye-witnesses casts a serious doubt about

they being eye-witnesses to the occurrence. In support of this

submission, he relies upon a recent judgment of this Court in

Shahid  Khan v.  State  of  Rajasthan,  (2016)  4  SCC  96,

wherein  this  Court  reversed  the  conviction  for  murder  as

statements  of  eye-witnesses  were  recorded  after  3  days  of

incident and no explanation regarding the same was given.  

(d) Fourth, in the same judgment i.e. Shahid Khan v. State

of  Rajasthan (supra),  this  Court  further  held  that

evidence of witnesses became unreliable when there was

no corroboration of their evidence, and a further reason

for reversal of conviction for murder was that there was

no information available as to how police came to know

that witnesses saw the occurrence and also as the case

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against  accused  persons  was  not  proved  beyond

reasonable doubt.  

(e) Fifth, PW-7 Mohd. Shafi admits that he had never seen

Lt. Col. Chaudhary there ever before. It is highly doubtful

that  he  would  be  particular  in  noticing  that  Lt.  Col.

Chaudhary  was coming  out  of  the  gate  of  98,  Sunder

Nagar, or that he would be able to say after 10 months

that he saw Lt. Col. Chaudhary.  

(f) Sixth,  PW-7  is  an  old  and  trusted  employee  of  the

Sikands with over 30 years of service with them and is,

therefore, clearly not an independent and reliable witness

and is  the  only  person deposing to have  seen Lt.  Col.

Chaudhary near the main gate coming out of 98, Sunder

Ngar on 25.09.1982.  

(g) Seventh, PW-7 has stated that subsequent to spotting of

Lt. Col. Chaudhary, he parked the car, locked it and went

upstairs to deliver the keys of the car to Kishan Sikand

and even at that time he did not see any parcel lying in

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the staircase. PW-7’s testimony itself rules out that Lt.

Col.  Chaudhary had placed any parcel  on that  day as

alleged by the prosecution.  

(h) Eighth, the claim to recognize a person in the headlights

of  a  moving  car,  when not  specifically  looking  out  for

him, would be a very tall and motivated claim, not free

from suspicion, especially when sunset occurred at 6.16

p.m.  on 25th September,  1982 (recorded data available

with  Meteorological  Bureau)  and  it  gets  pitch-dark  by

6.45  p.m.  Also  there  was  no  streetlights  outside  98,

Sunder Nagar in 1982.  

(i) Ninth, during his cross-examination, except for the exact

date and time of seeing Lt. Col. Chaudhary outside 98,

Sunder  Nagar,  PW-7 Mohd.  Shafi  could  not  remember

any  other  date  in  1982  –  neither  his  son’s  date  of

marriage,  nor  where  his  son  worked,  nor  his  own

birthday,  nor  any  important  religious  or  personal

occasion.  

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The  learned  counsel,  therefore,  argued  that  the  entire

statement of PW-7 is tailor-made to suit the prosecution story

only to create a link between the planting of a parcel and Lt.

Col.  Chaudhary.  Such  evidence  is  to  be  treated  with  great

suspicion  by  law  and  a  delay  of  just  a  few  days,  in  such

circumstances, has been held to be unreliable.  

16. Learned  counsel  for  Respondent  No.2  lastly  submitted

that  the  prosecution  has  failed  to  prove  their  case  beyond

reasonable doubt for the following reasons:

i) Motive to Kill:  It is evident from Respondent No.2’s 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

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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

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personal objective in future and that he actually used it a

decade later in 1982.  

iii) Presence  of  Respondent  at  Deceased’s  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  Respondent’s

presence  is  further  confirmed  till  11  pm  by  DW-1  Mr.

Rattan Sehgal at a party in Friends Colony.

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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

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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

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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 Vs.  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

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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.

Thus,  we do not  have any hesitation to hold that  the High

Court has correctly come to the conclusions with the reasons

given therefor.  Accordingly, we do not find any merit in these

appeals which are hereby dismissed.  

….....….……………………J (Pinaki Chandra  Ghose)

….....…..…………………..J (Amitava Roy)

New Delhi; December 15, 2016.