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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1327 OF 2008  

Mustkeem @ Sirajudeen      ....Appellant Versus

State of Rajasthan      ....Respondent WITH

Criminal Appeal No.1369/2008; and  Criminal Appeal No.1370/2008

J U D G M E N T Deepak Verma, J.    1. This judgment and order shall govern disposal of  

Crl. A. No. 1369 of 2008  Nandu Singh @ Vikram  Singh Vs. State of Rajasthan and Crl. A.No. 1370  of 2008  Arun Joseph Vs. State of Rajasthan as  they arise out of the common judgment and order  recorded by Division Bench of the High Court of  Judicature for Rajasthan, Bench at Jaipur in D.B.

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Criminal  Appeal  No.  125/2005,  210/2005  and  1176/2005 decided on 03.12.2007, arising out of  judgment  and  order  of  conviction  recorded  by  Special Judge SC/ST (PA Cases) Jaipur in Sessions  Case No. 02/2004 decided on 10.02.2005.

2.The trial court vide its judgment and order held  the Appellants guilty for commission of offence  under Section 302/34 of the Indian Penal Code (in  short 'IPC') and awarded life imprisonment with  fine of Rs. 1000/- and in default of payment of  fine further three months simple imprisonment and  under Section 4/25 of the Arms Act one year R.I.  and fine of Rs. 500/- and in default of payment  of fine to further suffer one month imprisonment.  The sentences were directed to run concurrently.  

3.Feeling  aggrieved  by  the  said  judgment,  Appellants  had  preferred  three  appeals  as  mentioned hereinabove before the Division Bench  of the High Court of Judicature for Rajasthan at

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Jaipur Bench. The High Court, after considering  the  matter  from  all  angles  also  came  to  the  conclusion that no interference was called for  against the said judgment of the trial Court and  dismissed the appeals. In all, there were five  accused  out  of  which  one   Abrar  was  declared  absconder and Abdul Wahid was acquitted by the  Trial  Court.  Thus  these  appeals  by  the  three  convicted accused.

4.We have, accordingly, heard learned Counsel Mr.  R.K. Kapoor, Ms. Shweta Kapoor, Mrs. Mansi Dhiman  for  the  Appellants  and  Mr.  Milind  Kumar,  Mr.  Imtiaz Ahmeda and Ms. Archana Pathak Dave for the  Respondent State and perused the record.

5.Facts  giving  rise  to  the  prosecution  story,  ultimately  resulting  in  conviction  of  the  Appellants, are as under:-

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 On 24.07.2003 at 5.45 p.m. Diwakar Chaturvedi  SHO Police Station Vidhan Sabha, Jaipur received  telephonic information about murder of a person in  Kathputli  Colony.  After  recording  the  said  information in Rojnamcha, SHO rushed to the spot  with police squad and found a person lying dead in  a pool of blood.

6.On  inquiries  being  made  P.W.3  –  Ashok  Kumar,  present  at  the  place  of  occurrence  informed  Diwakar that the name of the deceased was Ram Pal  Yadav. He further informed that the murder of Ram  Pal Yadav has been caused by Mustkeem, Nandu and  one other person by inflicting injuries on his  person with sword and knife.  The third person  was later identified as Arun Joseph. On receiving  the  said  information  SHO  recorded  the  Parcha  Bayan of P.W.3 – Ashok Kumar and registered a  case under Section 302/120B of the IPC. Thus the  investigation machinery was set into motion. Dead

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body was sent for autopsy, necessary memos were  drawn,  statements  of  witnesses  were  recorded,  accused  were  arrested  and  on  completion  of  investigation charge sheet was filed.

7.Charges  under  Section  302/149  IPC  and  Section  4/25  of  the  Arms  Act  were  framed  against  the  accused. They denied the charges and prayed for  being tried. The prosecution in support of its  case examined 19 witnesses. The statements of the  Appellants  under Section  313 of  Cr. P.C.  were  recorded, who claimed innocence and prayed for  their acquittal.  

8.As per the post mortem report Ex. P.34, deceased  Ram  Pal  Yadav  had  received  38  ante  mortem  injuries and from the evidence of P.W.13 - Dr.  Sumant Dutta, cause of death was stated to be due  to hemorrhagic shock as a result of injuries to  chest,  lungs  and  skull  and  on  account  of  excessive  bleeding.  In  the  light  of  the  Post

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Mortem Report and the evidence of P.W.13 – Dr.  Sumant Dutta, it cannot be disputed nor has been  disputed  before us  that deceased  had met  with  homicidal death.

9.Now  the  question  that  arises  for  our  consideration in this and the connected appeals  is as to who were the perpetrators of the crime  and whether the trial Court and High Court were  justified in holding the appellants guilty for  commission of the said offences.

10.Before we proceed to do so it is necessary to  point out that the solitary star witness of the  prosecution  P.W.3  -  Ashok  Kumar  had  turned  hostile and was declared as such.

11.In fact, it is pertinent to mention here that  the  main  material  witnesses  were  declared  hostile. The Trial Court observed in this context  that P.W.1 Mohd. Ayub (recovery witness), P.W.3

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Ashok  Kumar  and  P.W.2  Prakash  (both  eye- witnesses)  had  retracted  their  statements  made  under  Section  161  Cr.P.C.  during  examination.  Furthermore, it has also refused to attach much  credence  to  the  deposition  of  P.W.19  Yogesh  Kumar, owing to the clear contradictions in his  statement and aforesaid deposition regarding his  presence  at  the  scene  of  crime.  Thus,  in  a  nutshell,  Trial  Court  had  also  found  them  unreliable  and  has  not  based  the  Appellants  conviction  on  the  basis  of  their  statements.  Similarly High Court has not taken their evidence  into consideration. Thus, it is neither required  nor  is necessary  to deal  with their  evidence.  Trial Court had recorded a finding that the case  is  without  any  eye  witness  and  is  based  on  circumstantial evidence.

12.It  is  therefore  necessary  to  discuss  the  evidence of P.W.8 – Smt. Supyar Kanwar, P.W.9 –

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Lali Devi and P.W.10 – Chittar so as to find out  the element of truth in the same and to discern  any motive behind the commission of the offence.

13.It  is  fully  established  that  the  prosecution  case is based on circumstantial evidence. In this  view of the matter, we have to see if the chain  of  circumstances  was  so  complete  so  as  to  unerringly  point  the  finger  only  at  the  Appellants  as  perpetrators  of  crime.   Before  delving  into  the  legal  analysis,  however,  we  would like to examine the statements of P.W.8 and  P.W.10 in brief.  

14.As  per  the  prosecution  story,  Appellants  Mustkeem and Arun had met P.W.10 – Chittar a day  before the occurrence, in whose house deceased  Ram Pal Yadav, was residing as a tenant,  for  last 5 to 6 years and he deposed that Appellants  Mustkeem and Arun had told him that,  that day  it  would be the last visit of Ram Pal and he

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will not come to his house again. Similar is the  evidence of P.W.9 – Lali Devi, wife of P.W.10.  She has repeated the same version as had been  deposed by P.W.10– Chittar.

15. P.W.8 – Smt. Supyar deposed that Mustkeem, Arun  and Nandu used to visit Ram Pal Yadav regularly  as all of them were dealing in illicit liquor  trade.  On  coming  to  know  from  Lali  Devi  that  Arun, Mustkeem and Nandu were keen to eliminate  Ram Pal Yadav, she had telephonically asked him  to meet her at the earliest. When deceased Ram  Pal Yadav met Smt. Supyar, she informed him about  the intentions of the accused. She also told him  that  Arun  and  Mustkeem  both  had  said  that  it  would be the last visit of Ram Pal Yadav to her  house as they were planning to eliminate him.  

16.Thus,  from  an  appraisal  of  the  evidence  of  P.W.8, P.W.9 and P.W.10, the Trial Court and the  Division  Bench  of  the  High  Court  ruled  that

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prosecution  has  been  able  to  establish  that  deceased Ram Pal Yadav and Appellants were all  involved in illegal trade of liquor and a day  prior to the date of incident, Arun and Mustkeem  had expressed their intentions to eliminate Ram  Pal to P.W.9 and P.W.10.

17.High  Court  while  considering  the  Appellants'  appeal  found  this  factor  as  one  of  the  incriminating  circumstances  to  eventually  hold  the Appellants guilty for the aforesaid offence.

18. The  other  circumstance  found  against  the  Appellants by High Court was that, on the basis  of the disclosure statements of the Appellants,  weapons alleged to be used in the commission of  offence  and  clothes  stained  with  human  blood  were recovered. In its Judgment, the High Court  has discussed  in extenso the effect of Section  27 of the Indian Evidence Act (hereinafter shall

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be  referred  to  as  'Act')  and  subsequent  discovery of the material objects thereafter.

19.On the basis of the report of the serologist, it  has come on record that traces of AB blood group  were  found  on  the  pants  and  baniyan  of  the  deceased. The prosecution has also averred that  Sword and clothes stained with human blood group  AB  were  also  recovered  at  the  instance  of  Appellants,  from the  places shown  by them  and  known only to them and none others. On account of  aforesaid circumstances, the High Court was of  the opinion that the chain of circumstances was  complete and the completed chain of circumstances  pointed  the finger  for commission  of the  said  offence only by the Appellants.  

20. As  regards  the  motive  (if  any)  behind  the  homicide, on review of the relevant deposition  of the witnesses, we are of the opinion that one  of the circumstances found against the present

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Appellants,  that  deceased  and  Appellants  indulged  in  illegal  trade  of  liquor  and  thus  were having enmity with each other, is not based  on any cogent and reliable evidence much less on  the evidence of P.W.8, P.W.9 and P.W.10. This  could not have been the motive of killing Ram  Pal.

21.In fact, the omissions on the part of all three  witnesses  namely, P.W.8,  P.W.9 and  P.W. 10  to  state  certain material  facts in  the course  of  making their statements before the police, which  they  have  categorically  admitted  in  their  depositions  may  even  be  considered  as  “contradictions”  as  per  the  Explanation  to  Section 162 of the Cr.P.C.  

22. Their evidence, that they had intimated P.W.8 a  day prior to the date of incident, that they would  eliminate  Ram  Pal  is  also  not  trustworthy.  On  account of several discrepancies appearing in their

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evidence, P.W.8 is absolutely an hearsay witness  which is borne out from their evidence. Similarly  the evidence of P.W.9 and P.W.10 does not establish  the intention on the part of the accused to murder  Ram Prasad. Since no enmity could be established on  record  between  them  there  was  nothing  which  warranted to eliminate Ram Pal.

23. The  AB  blood  group  which  was  found  on  the  clothes  of  the  deceased  does  not  by  itself  establish  the  guilt  of  the  Appellant  unless  the  same was connected with the murder of deceased by  the Appellants. None of the witnesses examined by  the  prosecution  could  establish  that  fact.  The  blood found on the sword recovered at the instance  of the Mustkeem was not sufficient for test as the  same had already disintegrated.  At any rate,  due  to  the  reasons  elaborated  in  the  following  paragraphs, the fact that the traces of blood found  on  the  deceased  matched  those  found  on  the

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recovered weapons cannot  ipso facto  enable us to  arrive at the conclusion that the latter were used  for the murder.

24. In  fact,  the  recovery  of  the  weapons  on  disclosure  of  the  Appellants  itself  becomes  doubtful.  The  witness  of  Recovery  Memo  P.W.1  –  Mohd. Ayub Khan was declared hostile and another  witness P.W.10 – Chittar admitted that signatures  were obtained on the memos and annexures at the  Police  Station  itself.  It  is  also  pertinent  to  mention  here  that  P.W.1  –  Mohd.  Ayub  Khan  was  residing 4 Kms. away from the place of recovery and  P.W.10 – Chittar was residing 8 Kms. away from the  place of recovery and were also declared hostile.  Prosecution failed to establish as to why none of  the local persons were called to be the witnesses.  The  conduct  of  the  prosecution  appears  to  be  extremely  doubtful  and  renders  the  case  as  concocted,  to  falsely  implicate  the  Appellants.

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Recovery  Memos  also  reflect  that  there  were  overwriting  on  the  same  which  has  not  been  explained  by  P.W.16  –  Diwakar  Chaturvedi  (Investigating Officer). He admitted that memos and  annexures were prepared in his own handwriting but  also  admitted  in  his  cross  examination  that  the  same were in a different handwriting. This lacuna  should have been explained by the prosecution more  so  when  the  whole  case  rested  only  on  circumstantial evidence. Thus looking to the matter  from all angles we are of the considered opinion  that it would not be safe and proper to hold the  Appellants guilty for commission of offence.

25.   It is too well settled in law that where the  case rests squarely on circumstantial evidence the  inference  of guilt can be justified only when all  the incriminating facts and circumstances are found  to  be  incompatible  with  the  innocence  of  the  accused or the guilt of any other person. No doubt,

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it is true that conviction can be based solely on  circumstantial evidence but it should be decided on  the touchstone of law relating to circumstantial  evidence, which has been well settled by law by  this Court.

26.   In  a  most  celebrated  case  of  this  Court  reported  in  1984  (4)  SCC  116  Sharad  Birdhichand  Sarda Vs.  State of Maharashtra in para 153, some  cardinal principles regarding the appreciation of  circumstantial  evidence  have  been  postulated.  Whenever  the  case  is  based  on  circumstantial  evidence  following  features  are  required  to  be  complied with. It would be beneficial to repeat the  same  salient  features  once  again  which  are  as  under:-

“(i)The  circumstances  from  which  the  conclusion of guilt is to be drawn must  or  should  be  and  not  merely  'may  be'  fully established, (ii)The facts so established should be  consistent  only  with  the  hypothesis  of

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the guilt of the accused, that is to say,  they  should  not  be  explainable  on  any  other hypothesis except that the accused  is guilty, (iii) The circumstances should be of a  conclusive nature and tendency, (iv)   They should exclude every possible  hypothesis except the one to be proved,  and  (v) 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”.

27. With regard to Section 27 of the Act, what is  important is discovery of the material object at  the disclosure of the accused but such disclosure  alone  would  not  automatically  lead  to  the  conclusion that the offence was also committed by  the accused. In fact, thereafter, burden lies on  the prosecution to establish a close link between  discovery of the material objects and its use in  the commission of the offence. What is admissible

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under  Section  27  of  the  Act  is  the  information  leading to discovery and not any opinion formed on  it by the prosecution.

28.  If the recovery memos were prepared at the  Police Station itself then the same would lose its  sanctity as held by this Court in  Varun Chaudhary  Vs. State of Rajasthan reported in AIR 2011 SCC 72.

29.  The scope and ambit of Section 27 were also  illuminatingly stated in AIR 1947 PC 67  Pulukuri  Kotayya  &  Ors. Vs.  Emperor reproduced  hereinbelow:-   

“...it is fallacious to treat the 'fact  discovered' within the section as equivalent  to the object produced; the fact discovered  embraces the place from which the object is  produced and the knowledge of the accused as  to  this,  and  the  information  given  must  relate distinctly to this fact. Information  as to past user, or the past history, of the  object  produced  is  not  related  to  its  discovery  in  the  setting  in  which  it  is  discovered. Information supplied by a person  in  custody  that  'I  will  produce  a  knife  concealed in the roof of my house' does not  lead  to  the  discovery  of  a  knife;  knives

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were discovered many years ago. It leads to  the discovery of the fact that a knife is  concealed in the house of the informant to  his knowledge, and if the knife is proved to  have  been  used  in  the  commission  of  the  offence,  the  fact  discovered  is  very  relevant. But if to the statement the words  be  added  'with  which  I  stabbed  A'  these  words  are  inadmissible  since  they  do  not  relate to the discovery of the knife in the  house of the informant.”

The  same  were  thereafter  restated  in  another  judgment  of  this  Court  reported  in  2004  (10) SCC 657 Anter Singh Vs. State of Rajasthan.

30.   The doctrine of circumstantial evidence was  once again discussed and summarised in 2008 (3) SCC  210 Sattatiya @Satish Rajanna Kartalla Vs. State of  Maharashtra in the following terms:   

“10. ..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 circumstance from which an inference  as  to  the  guilt  is  drawn  have  to  be

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proved beyond reasonable doubt and have  to be shown to be closely connected with  the principal fact sought to be inferred  from those circumstances”.

31.   As  regards  scope  of  interference  against  concurrent findings of fact, powers under Article  136 of the Constitution can be exercised, in the  manner  described  in   para  14  of  the  aforesaid  judgment reproduced hereinbelow:-    

“14.  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  Vs. State of M.P. 2003 (3) SCC 106]

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32. After having discussed the entire evidence, we  have no doubt in our mind that the same is vitiated  by serious errors and if Appellant's conviction is  upheld  then  it  would  amount  to  miscarriage  of  justice.   

33. In  the  light  of  the  aforesaid  well  settled  principles of law by several authorities of this  Court, we are of the opinion that the judgment and  order of conviction as recorded by Trial Court and  confirmed  by  High  Court  in  Appellants  appeals  cannot  be  sustained  in  law.  The  same  are,  therefore,  hereby  set  aside  and  quashed.  Appeals  are  allowed.  Appellants  are  acquitted  of  the  charges  levelled  against  them.  The  Appellants  be  set  at  liberty,  if  not  required  in  any  other  criminal cases.

.....................J.   [ASOK KUMAR GANGULY]

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  ....................J.    [DEEPAK VERMA]

New Delhi July 13, 2011