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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.441 OF 2009 With

CRIMINAL APPEAL NO.1363 of 2009

Vijay Kumar .. Appellant(s)  versus

State of Rajasthan ..        Respondent(s)

J U D G M E N T

C. NAGAPPAN, J.  

1. These  two  appeals  are  preferred  against  the  

judgment  of  the  High  Court  of  Judicature  of  

Rajasthan at Jaipur Bench in DB Criminal Appeal  

No.664 of 2001.

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2. The appellant  Dr.  Atma Ram in Criminal  Appeal  

No.1363  of  2009  is  the  accused  No.1  and  the  

appellant Vijay  Kumar in Criminal Appeal No.441  

of  2009  is  accused  No.3  in  the  Sessions  Case  

No.28 of 2001 (38/1986) on the file of Additional  

Sessions Judge (Fast Track) Jhunjhunu, Rajasthan  

and  they were tried for  the  alleged  offences  

under Section 120B, 302, 460 and 382 IPC.  Three  

other  accused   namely  A-2  Kailash  Chand,  A-4  

Gyanchand and A-5 Radha Devi were also tried in  

the  same  case  for  the  alleged  offence  under  

Section  411  IPC.   The  Sessions  Court  found  

accused  Nos.  1  and  3/appellants   guilty  of  the  

charges  framed  and  sentenced  them  each  to  

suffer imprisonment for life and to pay a fine of  

Rs.5000/-  each  in  default  to  undergo  rigorous  

imprisonment for six months each for the offence  

under Section 302 read with Section 120B IPC and  

further sentenced them each to undergo rigorous  

imprisonment for eight years and to pay a fine of

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Rs.1000/- each and in default to undergo rigorous  

imprisonment for six months  each for the offence  

under Section 460 IPC and also sentenced them  

each to undergo rigorous imprisonment for eight  

years and to pay a fine of Rs.1000/- each and in  

default to undergo rigorous imprisonment for six  

months each for  the offence under Section 382  

IPC  and  ordered  the  sentences  to  run  

concurrently.   The  Sessions  Court  also  found  

accused Nos.2, 4 and 5 guilty of the offence under  

Section  411  IPC  and  sentenced  them  each  to  

undergo rigorous imprisonment for two years and  

each to pay a fine of Rs.500 and in default each to  

undergo rigorous imprisonment for three months.

3. Aggrieved  by  the  conviction  and  sentence  

accused Nos.1 to 5 preferred appeal in Criminal  

Appeal  No.664  of  2001  and  the  High  Court  by  

judgment  dated  2.5.2007  dismissed  the  appeal  

preferred  by  the  accused  No.1  Atma  Ram  and  

accused No.3 Vijay Kumar/appellants herein and

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at the same time allowed the appeal pertaining to  

accused No.2 Kailash Chand, A-4 Gyan Chand and  

Accused No.5 Radha Devi and acquitted them of  

charge under Section 411 IPC. Challenging their  

conviction and sentence accused No.1 Atma Ram  

and accused No.3 Vijay Kumar have preferred the  

present appeals.

4. Briefly the case of the prosecution is as follows:

Accused  No.1  Atma  Ram  was  working  as  a  

Doctor in the Government Hospital in village Chhapoli  

and Keshar Bai was posted as a mid-wife in the same  

hospital and a month prior to occurrence she started  

residing in a room on the ground floor under the stair-

case of the hospital.  She used to give loan on interest  

on the mortgage of gold and silver ornaments. PW 17  

Sweeper Basanti Lal was also residing in a corner room  

on the ground  floor of the hospital.  A-1 Atma Ram was  

residing  on  the  first  floor  of  the  same  hospital.  

Accused No.3 Vijay Kumar was his brother-in-law and

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he was also residing with him.  On 11.11.1985 PW 17  

Basanti  Lal  noticed  Kesar  Bai  sitting  outside  in  the  

hospital  and  also  noticed  return  of  Atma  Ram  to  

Hospital.  Dr.Atma Ram forwarded a written report on  

November  12,  1985  through  Peon  Nand  Lal  to  

Udaipurbati Police Station (Jhunjhunu) informing about  

the murder of Keshar Bai.  In the report A-1 Atma Ram  

stated that in the preceding night  around 12.30 a.m.  

he  suddenly  woke-up   hearing   voice  of  sweeper  

Basanti  Lal  who was asking to  open the door  of  his  

room which was bolted from outside. Atma Ram then  

got up and proceeded towards the room of Basanti Lal  

but the door of Atma Ram’s staircase was also bolted  

from outside, therefore he could not go out and awoke  

Vijay Kumar, who was residing with him. Vijay Kumar  

then scaled the roof and unbolted the room of Basanti  

Lal.  Thereafter  all  the  three  went  down through  the  

staircase  and  went  towards  Nohra.  They  found  the  

room of Keshar Bai open. They called Keshar Bai, but  

she did not respond. Therefore they entered inside the

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room and saw Keshar Bai lying dead in naked condition  

in a pool of blood. Her mouth was tied with saree.  On  

her legs a box was lying open.   Based on the report  a  

case under Exh.P.13 First Information Report came to  

be registered under Section 302 and 460 IPC and the  

investigation  commenced.  After  some  time  the  

investigation was transferred to CID (CB) Jaipur.  PW 85  

Investigation Officer Shiv Prasad Sharma arrested A-1  

Atma Ram on 9.4.1986 and on inquiry A-1 Atma Ram  

gave  Exh.P105  information  leading  to  recovery  of  

ornaments under Exh.P8 list.   Pursuant to his further  

information given under Exh. P106 one knife and screw  

driver came to be recovered under Exh.P.30.  PW 85  

Investigation Officer  Shiv Prasad Sharma arrested A-3  

Vijay  Kumar  on  26.4.1986  and  on  inquiry  A-3  Vijay  

Kumar  gave Exh.P.111 information leading to recovery  

of  ornaments/articles  under  Exh.  P5  Memo.  The  

Investigation Officer arrested the other three accused  

and during investigation examined the witnesses and  

recorded  statements.  PW  83  Tahsildar  Durga  Prasad

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Sharma  conducted  identification  proceedings  of  the  

recovered  articles  and  prepared  72  identification  

reports.  After  completion  of  the  investigation  the  

charge-sheet  came  to  be  filed  against  the  accused  

persons. During the trial the prosecution examined 86  

witnesses  and  marked  the  relevant  documents  in  

support of its case. A-1 Atma Ram examined himself as  

a  defence  witness,  besides  4  other  witnesses  were  

examined on the side of defence.  The trial Court found  

accused guilty of the charges and sentenced them as  

narrated  above,  on  appeal  the  conviction  and  

sentences  imposed  on  A-1  Atma Ram and  A-3  Vijay  

Kumar  were  confirmed  and  the  other  accused  were  

acquitted.  A-1 Atma Ram and A-3 Vijay Kumar have  

challenged the same in these appeals.

5. We  heard  Mrs.  Mridul  Aggarwal  the  learned  

amicus curie appearing on behalf of the appellant  

Atma Ram and Mr. Bhagwati Prasad the learned  

senior counsel  appearing for  the appellant Vijay

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Kumar  and  also  learned  Additional  Advocate  

General appearing for the respondent-State.

6. The prosecution case is  that  the appellants A-1  

Atma  Ram  and  A-3  Vijay  Kumar  conspired  and  

murdered  Keshar  Bai  and  stolen  the  

ornaments/articles possessed by her. Nobody  has  

witnessed the occurrence and the case rests on  

circumstantial  evidence.  In  a  case  based  on  

circumstantial evidence the settled law is that the  

circumstances from which the conclusion of guilt  

is  drawn  should  be  fully  proved  and  such  

circumstances  must  be  conclusive  in  nature.  

Moreover,  all  the  circumstances  should  be  

complete and there should be no gap left in the  

chain  of  evidence.   Further  the  proved  

circumstances must be consistent  only with the  

hypothesis of the guilt of the accused and totally  

inconsistent with his innocence.

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7. The prosecution in order to prove its case mainly  

relied on the following circumstances:

i) Keshar Bai died of homicidal violence.

ii) A-1  Atma  Ram,  threatened  Keshar  Bai  of  

possible  income-tax  raid  and  seizure  of  

ornaments possessed by her and persuaded her  

to  shift  her  residence from village to  hospital  

premise with her belongings.

iii) Accused Radha used to demand the ornaments  

for wearing from Keshar Bai.

iv) On the information furnished by A-1 Atma Ram  

and  A-3  Vijay  Kumar,  upon  their  arrest,  the  

ornaments  pledged  by  various  persons  with  

Keshar Bai, got recovered from their possession.

8. PW  14  Dr.  Dinesh  Singh  Choudhary  conducted  

post-mortem on the body of Keshar Bai and found  

the following ante mortem injuries :

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i) Incised wound 1”x1” x 1.5” towards right  

of neck  below jaw till trachea

ii) Three Incised wounds on Lt. Side neck till  

trachea each measuring as 1¼” x ½” x 1”,  

in the middle 1” x ½” x 1 of below ½” x ¼”  

x ¼”  

iii) Incised  wound  2”  x  ½”  x  ½”  above  Rt.  

Breast

iv) Incised  wound  2”  x  ½”  x  ½”  above  Lt.  

Breast

v) Three incised wounds below Right  Breast  

½” x ¼” x ¼” IInd 1” x ½” x ¼” IIIrd ½” x  

¼” x ¼”

vi) Incised wound Lt.  hand from behind 1” x  

½” x ½”  

vii) Incised wound Rt. hand from behind 1” x  

½” x ½”

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According to him the cause of death was hemorrhage  

due  to  cut  of   neck  vessels.   Exh.  P24  is  the  post  

mortem  report  issued  by  him.  From  the  medical  

evidence  it  is  clear   that  death  of  Keshar  Bai  was  

homicidal in nature and the first circumstance  stood  

established.

9. Circumstances  No.2  and  3  are  taken  up  for  

discussion  together.   PW7  Kishore  Singh  is  a  

resident of village Chhapoli  and he has testified  

that Keshar Bai was a nurse in the hospital and  

was residing  as a tenant in his house on rent of  

Rs.10 per month for more than a decade and she  

used  to  lend  loan  on  interest  on  mortgage  of  

ornaments and she used to keep the ornaments in  

a  box  in  the  house  and  a  month  prior  to  the  

occurrence  she  shifted  her  residence  from  his  

house to the hospital with all her belongings.

10. PW  10  Jaswant  Singh  is  the  brother-in-law  of  

Keshar Bai and in his examination-in-chief he has

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stated that Keshar Bai kept her ornaments in the  

locker of a bank and A-1 Atma Ram told her that  

the  income-tax  people could  raid  the bank and  

seize her ornaments and hence Keshar Bai took  

the ornaments with her.  PW 10 has further stated  

that  Keshar  Bai  used  to  tell  him  that  accused  

Radha demanded ornaments from her for wearing  

and would dance after wearing the same. In the  

cross  examination  PW  10  Jaswant  Singh  has  

stated that he did not tell in his statement to the  

police during investigation about the threat made  

by  A1-Atma  Ram  to  Keshar  Bai  regarding  the  

possibility  of  an  income-tax  raid  and  seizure  of  

ornaments  and  also  the  demand  of  ornaments  

made by accused Radha to Keshar  Bai  and her  

wearing  the  same.   This  Court  has  to  form its  

opinion about the credibility  of  the witness  and  

record  a  finding  as  to  whether  his  deposition  

inspires confidence.  This witness PW 10 Jaswant  

Singh was admittedly examined by Investigation

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Officer during investigation and in that statement  

he has not stated  the facts which he now for the  

first  time  stated  before  the  Trial  Court.    This  

raises a serious doubt as to the veracity of the  

said facts [See Khalil  Khan vs. State of M.P.  

(2003) 11 SCC 19].  In other words this witness  

has made  material improvement while deposing  

in the Court and such evidence cannot be safe to  

rely  upon.   Thus  the  evidence  adduced  by  the  

prosecution to prove the circumstances  2 and 3  

does not pass the test of credibility and is liable  

for rejection.

11. The remaining last circumstance pertains to the  

recoveries made pursuant to the disclosure made  

by the appellants.   The investigation officer PW  

85  Shiv  Prasad  Sharma   has  claimed  that  he  

arrested  A-1  Atma  Ram  on  9.4.1986  and  on  

inquiry he gave Exh. 105 information which led to  

the recovery of ornaments mentioned in Exh.P8 --

list in the presence of witnesses.  PW 5 Santbax

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Singh  and  PW6  Madanlal  Bhavaria  are  the  

witnesses to the said recovery.  Both of them have  

testified that accused No.1 Atma Ram took them  

and the police to his house and entered a room in  

the court-yard and opened an almirah and took  

out  a  plastic  bag  and  handed  it  over,  which  

contained  ornaments of gold and silver and the  

same was recovered by Memo under Exh. P8 list.  

The further testimony of the investigation officer  

is that he arrested A-3 Vijay Kumar on 26.4.1986  

and  on  inquiry  he  gave  Exh.P  111  information  

which  led  to  the  recovery  of  ornaments  under  

Exh.P5 Memo in the presence of witnesses.  PW4  

Tota Ram is the witness for the said recovery and  

according to him A-3 Vijay Kumar took him and  

the police to his house and produced silver and  

gold  articles  and  they  were  recovered  under  

Exh.P5 Memo,  which he attested.   The relevant  

portion of Exh.P5 Memo reads as follows:

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“Accused  Vijay   asked  for  key  of  lock  of  

Baithak  (room)  from  father  through  his  

brother’s  wife  of  Kailash,  and opened lock  

and  then  entered  towards  right  side  of  

Baithak.  Where in a Almirah a box (old) was  

found and opened it, and found a cloth bag  

(Potali) which was tied up.  Accused told that  

the potali contains ornaments.  When potali  

was opened found the following ornaments  

of gold and silver and a wrist watch….”

12. Both the above said recoveries have been made  

from  the  respective  houses  of  the  

accused/appellants   where  their  families  were  

residing.  In fact A-3 Vijay Kumar obtained the key  

from  his  father  for  opening  the  lock.   In  such  

circumstances  it  cannot  be  said  that  the  said  

articles  were in  the exclusive possession of  the  

accused/appellants  and  they  came  to  be  

recovered  only  on  the  information  furnished  by  

them.  The learned senior counsel and the amicus

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curie   appearing  for  the  appellants  strenuously  

contended  that  there  was  no  fair  identification  

proceedings  of  property  conducted  by  Tahsildar  

and  firstly  it  was  conducted  belatedly  and  

secondly the witnesses were already shown the  

articles  and thirdly  there is  no proof  that  those  

articles were kept with deceased Keshar Bai and  

the  recovery  and  -identification  are  unreliable  

shaky and fake.  In this regard reliance was placed  

on the  following decision  in  State of  Vindhya  

Pradesh vs. Sarua Munni Dhimar and others  

[AIR  1954  V.P.  (Vol.41  CN  15)].   The  relevant  

portion reads thus :

“Further  as  has  been  observed  in  connection  with  identification  of  accused  persons   no  presumption  attaches  to  identification  proceedings of property.  It is for the prosecution  to establish affirmatively  that every necessary  precaution  was  taken  to  ensure  fair  identification.  The most essential requirement is  that  the  witnesses  should  not  have  had  an  opportunity  of  seeing  the  property  after  its  recovery and before its identification before the

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Magistrate.  For that purpose it is necessary to  seal the property as soon as it is recovered and  to keep it in a sealed condition till it is produced  before the Magistrate.  The police officers who  take  the  sealed  bundles   to  the  thana  after  recovery and who take it  to the Magistrate for  identification proceedings should be examined to  prove   that  the  sealed   bundles  were  not  tampered with in any way.  The sealed bundles  should  be  opened  in  the  presence  of  the  Magistrate  conducting  the  identification  proceedings and he should depose about it.  The  property  to  be  mixed  with  the  property  to  be  identified  should  also  be  sealed  some  days  before  witnesses  are  called  and  the  bundle  containing  it  should  also  be  opened  in  the  presence  of  the  Magistrate  who  should  testify  about it in court.  Further as has been observed  in  the  case  of  identification  proceedings  of  persons the result of identification as well as the  fact whether the property mixed was similar to  the property identified should be entered in the  memorandum  by  the  Magistrate  in  his  own  hand.”

13. In the present case about 131 articles of gold and  

silver were recovered.  About 60 witnesses have  

testified the pledging of their articles with Keshar  

Bai.  The ornaments like ‘Gorla’, ‘Chain of gold’,

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‘madalia”  ‘ring’,  ‘Bitti’, `Karia’, ‘Pahunchi’, ‘hasli’  

etc. are of same kind lookwise having no special  

marks  on  them.    Learned  senior  counsel  

appearing  for  A-3  Vijay  Kumar  brought  to  our  

notice that one Pahunchi as per Exh.P5 recovery  

Memo,  which  contained  59  Mania  (Moti)  was  

recovered  along  with  6  silver  ornaments  

mentioned therein, whereas in Exh.P.68 a copy of  

Malkhana register the six silver articles alone are  

found mentioned and there is no mention of the  

gold ornament ‘pahunchi’ as having kept safely in  

the Malkhana and it is not known as to where it  

was kept and produced.  On a perusal of the said  

documents,   this  contention  cannot  be  easily  

brushed aside.  It is the further submission of the  

learned senior counsel that as per the prosecution  

case PW 28 Smt. Raj Kanwar has pledged  above  

said  ‘pahunchi’  with  Keshar  Bai  and  she  has  

stated in her testimony that  her ‘pahunchi’ was  

of  40  Mania  (Moti).   If  it  is  so  the  recovered

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‘pahunchi’ is not that of PW 28 Smt. Raj Kanwar.  

It is doubtful as to whether this recovery claimed  

by the prosecution is established.

14.  It  is  also  the  contention  of  the  learned  senior  

counsel  that  four  witnesses  examined  claimed  

one  ornament  as  theirs.   The  identification  

proceedings of articles was conducted by PW 83  

Tahsildar  Durga Prasad Sharma in Tehsil and he  

has  claimed  to  have  prepared  72  identification  

reports.   In  the  cross-examination  he  has  

admitted  that  there  were  policemen  present  at  

the time of identification and he did not know the  

articles brought to him were in sealed packets or  

in  open  condition  and  he  did  not  remember  

whether seal used on the packets was official seal  

since 12 years have already passed. Even he did  

not  know  as  to  who  has  arranged  for  articles  

having  similarity  to  the  seized  articles  for  the  

purpose  of  identification  and  identification  

proceedings were completed in a single day.  The

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Tahsildar  even  after  looking  at  the  Memo  was  

unable  to  say  how  many  articles  of  each  kind  

were mixed up with articles to be identified  and  

whether similar articles were new or old, used or  

unused etc. None of the precaution that ought to  

have been taken to ensure fair identification was  

ever taken and no weight can be attached to the  

evidence of identification of property.  Though the  

trial  court  has  observed  in  the  judgment  about  

the lack of proper identification of the articles, it  

erroneously  proceeded  further  to  accept  the  

same.  Recovery of weapons namely  knife and  

screw-driver  claimed to have been made on the  

information  given  by  A-1  Atma  Ram  is  also  

doubtful.  Even assuming to be true that recovery  

of certain incriminating articles were made at the  

instance of the accused under Section 27 of  the  

Evidence Act,   that   by  itself cannot form the  

basis  of  conviction  [See  Wakkar  vs.  State  of  

U.P. (2011) 3 SCC 306].

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15. In  this  background  we  are  of  the  considered  

opinion that both the Courts below fell in error in  

coming to the conclusion that the prosecution has  

established  its  case  based  on  circumstantial  

evidence beyond all reasonable doubt.  Benefit of  

doubt will have to be given to both the appellants.  

16. In the result both the appeals are allowed and the  

conviction   and  sentence  imposed  on  the  

appellants by the courts below are set aside and  

they  are  acquitted  of  the  charges.   They  are  

directed to be released from the custody forthwith  

unless required otherwise.

…………………………….J. (T.S. Thakur)

……………………………J. (C. Nagappan)

New Delhi; February 18, 2014