H.D. SIKAND (D) TH:LRS. Vs C.B.I.
Bench: PINAKI CHANDRA GHOSE,AMITAVA ROY
Case number: Crl.A. No.-000729-000729 / 2011
Diary number: 23311 / 2009
Advocates: JANENDRA LAL & CO. Vs
ARVIND KUMAR SHARMA
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1
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.