IN THE HIGH COURT OF DELHI : NEW DELHI

SUBJECT : INDIAN PENAL CODE

Criminal Appeal No.403 of 2002

Judgment reserved on: October 16, 2006

Judgment delivered on: November 24, 2006

Shri Prakash

S/o Shri Bhawani Prashad

R/o V. Niranjan Tiwari Sukha

P.O. Begumganj District Gaunda

Present address : C-209

Mansarovar Garden, Delhi ...Appellant

Through Mr. Rajesh Mahajan, Advocate

versus

The State

Govt. of NCT of Delhi

5, Sham Nath Marg

Delhi-110054. ...Respondent

Through Mr. Sunil Sharma,

Additional Public Prosecutor

WITH

Criminal Appeal No.411 of 2002

1. Shri Raghubir Singh

S/o Shri Lal Singh

R/o V. Dhakka Karam Chand

P.S. Dhampur District Bijnaur U.P.

Present address : C-196

Mansarovar Garden, Delhi

2. Shiv Singh

S/o V. Jaithra

P.S. Dhampur District Bijnaur U.P.

Present address : C-196

Mansarovar Garden, Delhi ..... Appellants

Through Mr. Vishal Gosain, Amicus Curiae

versus

State of Delhi Administration ..... Respondent

Through Mr. Sunil Sharma,

Additional Public Prosecutor

Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR

HON'BLE MS. JUSTICE ARUNA SURESH

MADAN B. LOKUR, J.

1. These are two appeals by a total of three Appellants directed against

the judgment and order dated 14th March, 2002 passed by the learned

Additional Sessions Judge in Sessions Case No. 63/2001. By the impugned

judgment and order, the Appellants were held guilty of an offence

punishable under Section 302 read with Section 34 of the Indian Penal Code

(for short the IPC) for committing the murder of Laxmi and for an offence

punishable under Section 307 of the IPC read with Section 34 thereof for

attempting to murder Radhey Shyam. Subsequently, by an order dated 15th

March, 2002 all the Appellants were sentenced to undergo imprisonment for

life in respect of the offence of murder and to undergo imprisonment of

seven years for the offence of attempt to murder. A fine was also imposed

in respect of both the convictions.

2. At the outset one rather disturbing feature of the case may be

mentioned: the main witness for the prosecution, that is, PW-12 Radhey

Shyam was examined on 5th May, 1992 but his cross-examination was

completed after a gap of seven years on 4th June, 1999. The Supreme Court

has time and again required the expeditious conclusion of a trial but in this

case a large part of the delay in disposal of the case has been due to the

failure of the Appellants to cross-examine PW-12 Radhey Shyam. We

would one again draw the attention of the Sessions Judges to the decisions of

the Supreme Court as well as the provision of Section 309 of the Code of

Criminal Procedure (for short the CrPC) and hope and expect that such

unreasonable delays are avoided.

3. We have dealt with this issue in some detail in Sobaran Singh v. State,

Criminal Appeal No.528 of 1998 (decided on 8th November, 2006) and do

not think it necessary to repeat what we have said. We would, however, like

to point out that a perusal of the order sheet of the trial court indicates some

extremely frivolous grounds for granting an adjournment, namely, when the

learned counsel for the accused was busy or not available. The

adjournments led Radhey Shyam as well as other witnesses for the

prosecution not to take the case quite seriously with the result that non-

bailable warrants were issued for the arrest of Inspector R.S. Nehra, PW-15,

Inspector Babu Lal, PW-14 and even Radhey Shyam, PW-12.

4. On 7th April, 1987, police station Kirti Nagar received information at

about 2.07 am that one lady had been murdered at C-196, Mansarovar

Garden. On receipt of this information, three police officers Head Constable

Charan Singh (PW-4), Constable Yaqoob Ali (PW-9) and Sub-Inspector

Budh Ram (PW-13) went to the spot and found the corpse of a lady who was

later identified as Laxmi wife of Radhey Shyam. While certain formalities

were being completed at the spot, the officer in charge of the police station

Inspector R.S. Nehra (PW-15) was informed, and when he was coming to

the spot in his jeep, he met Radhey Shyam and brought him along to the

scene of crime. Since Radhey Shyam had suffered some injuries, he was

sent to a hospital for immediate treatment and after he returned from there,

inquest proceedings were conducted and it transpired that three persons, that

is, Shiv Singh, Shri Prakash and Raghubir Singh (all Appellants) were

accused of having murdered Laxmi and for having attempted to murder

Radhey Shyam. As learned counsel for the Appellants put it, this is the first

part of the case.

5. Thereafter, on 9th April, 1987 a post mortem was conducted on the

body of Laxmi and several injuries were noted. The doctor who conducted

the post mortem, Dr. L.T. Ramani entered the witness box as PW-10 and he

gave an opinion that the injuries were ante mortem. One of the injuries was

caused by a blunt weapon and others were caused by a sharp edged weapon.

Two of the injuries caused by the sharp edged weapon were individually

sufficient to cause death in the ordinary course of nature.

6. On 11th March, 1987, the three Appellants – Shiv Singh, Shri Prakash

and Raghubir Singh were arrested on the basis of secret information received

by the police. Shiv Singh made a disclosure statement, as a result of which

one knife was recovered from underneath Yamuna sand lying in a vacant

plot bearing No. C-210, Mansarovar Garden, opposite the scene of crime.

All the accused persons were wearing blood stained clothes, which were

taken possession of. The arrest and recovery has been described by learned

counsel as the second part of the case.

7. After completion of investigations, the prosecution filed a challan

under Section 173 of the CrPC and as a result the following two charges

were framed against the Appellants on 4th January, 1988: -

“That on 7.4.1987 at about 1.30 A.M. at house No. C-196, Mansarover

Garden within the jurisdiction of Police Station Kirti Nagar in furtherance of

your common intention, you did cause the death of Smt. Laxmi and thereby

committed an offence of murder punishable under Section 302 read with

Section 34 of the Indian Penal Code and within the cognizance of this Court.

That on the abovenoted date, time and place, in furtherance of your common

intention, you caused injuries on the person of Radhey Sham with such

intention and under such circumstances that if by the abovesaid act, you

have caused the death of Radhey Sham, you would have been guilty of

murder and thereby committed an offence punishable under Section 307/34

of the Indian Penal Code and within the cognizance of this Court.”

All the accused pleaded not guilty and claimed trial.

8. The prosecution examined as many as 17 witnesses while the defence

examined one witness. All the Appellants also gave a statement under

Section 313 of the CrPC and stated that they were not present at the scene of

crime and that they had been falsely implicated in the case.

9. Since two of the Appellants were not represented, we requested Mr.

Vishal Gosain, Advocate to assist us on their behalf. We record our

appreciation for the efforts put in by him.

10. Having heard learned counsel, we are of the view that there is

inadequate evidence to conclude that the Appellants had either committed

the murder of Laxmi or had attempted to murder Radhey Shyam. Giving

them the benefit of doubt, we acquit all the Appellants.

11. In so far as the first part of the case is concerned, namely, the incident

that took place on 7th April, 1997, the admitted position is that the main

witness for the prosecution is Radhey Shyam, PW-12. His testimony was

attacked by learned counsel on several grounds. However, before

examining the testimony of Radhey Shyam, PW-12, it is necessary to first of

all appreciate the law on the subject with regard to the evidence of a solitary

witness who may be an interested witness and who may have been injured in

an incident which is the subject matter of a trial. It was submitted that in

view of the law laid down, Radhey Shyam's statement should be perused

very carefully given the facts and circumstances of the case, namely, that

Laxmi (the deceased) was married to Shri Prakash but was living with

Radhey Shyam and was apparently enjoying the company of Shiv Singh

with whom she had gone out for a movie sometime earlier and at whose

instance a surety had been obtained to get her out on bail in connection with

some case of kidnapping that had been filed against her.

12. In State of Uttar Pradesh v. Noorie, AIR 1996 SC 3073 it was held

that

“While assessing and evaluating the evidence of eye-witnesses the Court

must adhere to two principles, namely whether in the circumstances of the

case it was possible for the eye-witness to be present at the scene and

whether there is anything inherently improbable or unreliable.”

That Radhey Shyam was present when Laxmi was assaulted cannot be

doubted. He suffered some injuries which were proved by Dr. C. Vittal

Prasad, PW-2 who examined him. (See Awdesh v. State of Uttar Pradesh,

AIR 1995 SC 375). Moreover, no one has really disputed his presence.

Therefore, we are really concerned with the second circumstance mentioned

by the Supreme Court.

13. The Division Bench of the Gujarat High Court in State of Gujarat v.

Bharwad Jakshibhai Nagribhai, 1990 Cri.LJ 2531 laid down the issues that

are necessary for appreciating the evidence of an injured witness. It was

said that the Court should bear in mind that:-

(1) Their presence at the time and place of the occurrence cannot be

doubted.

(2) They do not have any reason to omit the real culprits and implicate

falsely the accused persons.

(3) The evidence of the injured witnesses is of great value to the

prosecution and it cannot be doubted merely on some supposed natural

conduct of a person during the incident or after the incident because it is

difficult to imagine how a witness would act or react to a particular incident.

His action depends upon number of imponderable aspects.

(4) If there is any exaggeration in their evidence, then the exaggeration is

to be discarded and not their entire evidence.

(5) While appreciating their evidence the Court must not attach undue

importance to minor discrepancies, but must consider broad spectrum of the

prosecution version. The discrepancies may be due to normal errors of

perception or observation or due to lapse of memory or due to faulty or

stereo-type investigation.

(6) There is a tendency amongst the truthful witnesses also to back up a

good case by false or exaggerated version. In this type of situation the best

course for the Court would be to discard exaggerated version or falsehood

but not to discard entire version. Further, when a doubt arises in respect of

certain facts stated by such witness,the proper course is to ignore that fact

only unless it goes into the root of the matter so as to demolish the entire

prosecution story. (The embellishments should not affect the substratum of

the prosecution case – State of Karnataka v. Bheemappa, 1993 Cri.LJ 2609).

The High Court also observed that in case the prosecution is unable to

produce any other or independent witness to an incident that happens, say

for example in a bazaar or a thickly populated area, that would be no ground

to throw out or doubt the version of an injured witness or the evidence of

relatives of the victim.

14. The Supreme Court in Lallu Manjhi v. State of Jharkhand, (2003) 2

SCC 401 stated the issues somewhat more succinctly by classifying the

evidence of a solitary witness into three categories, namely, (a) wholly

reliable, (b) wholly unreliable, (c) neither wholly reliable nor wholly

unreliable. It was said that in the first two categories, there may be no

difficulty in accepting or discarding the testimony of a single witness. The

difficulty arises in the third category of cases. The Court has to be

circumspect and has to look for corroboration in material particulars by

reliable testimony direct or circumstantial, before acting upon the testimony

of a single witness. In this connection, the Supreme Court relied upon its

earlier decision in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614.

15. In Anvaruddin v. Shakoor, AIR 1990 SC 1242, the Supreme Court

reiterated that:-

“This Court has, time out of number, reminded that the direct testimony of

witnesses, whose evidence is otherwise consistent, should not ordinarily be

rejected on the ground that they are partisan witnesses, unless the

surrounding circumstances discredit their version. Ordinarily, close relatives

of the deceased would not allow the real culprits to escape. The possibility

of their implicating others with the real offenders must, however, be kept in

mind.”

16. In Joseph v. State of Kerala, (2003) 1 SCC 465, the Supreme Court

cautioned that when there is a sole witness to an incident, his evidence may

be accepted with some degree of caution and after testing it on the

touchstone of the evidence tendered by other witnesses or evidence as

recorded. Similarly, in Chacko v. State of Kerala, (2004) 12 SCC 269, the

Supreme Court observed as follows:-

“Conviction can be based on the testimony of a single witness if he is wholly

reliable. Corroboration may be necessary when he is only partially reliable.

If the evidence is unblemished and beyond all possible criticism and the

court is satisfied that the witness was speaking the truth then on his evidence

alone conviction can be maintained.”

17. In Ashok Kumar Pandey v. State of Delhi, (2002) 4 SCC 76, the

Supreme Court referred to Rameshwar v. State of Rajasthan, AIR 1952 SC

54, Dalip Singh v. State of Punjab, AIR 1953 SC 364, Vadivelu Thevar v.

State of Madras, AIR 1957 SC 614, Masalti v. State of U.P., AIR 1965 SC

202, State of Punjab v. Jagir Singh, (1974) 3 SCC 277 and Guli Chand v.

State of Rajasthan, (1974) 3 SCC 698 to hold

“It is well settled that evidence of a witness cannot be discarded merely on

the ground that he is either partisan or interested or both, if otherwise the

same is found to be credible.”

18. In Bhimapa Chandappa Hosamani & Ors. v. State of Karnataka, JT

2006 (12) SC 76, the Supreme Court observed as follows:

“This court has repeatedly observed that on the basis of the testimony of a

single eye witness a conviction may be recorded, but it has also cautioned

that while doing so the court must be satisfied that the testimony of the

solitary eye witness is of such sterling quality that the court finds it safe to

base a conviction solely on the testimony of that witness. In doing so the

court must test the credibility of the witness by reference to the quality of his

evidence. The evidence must be free of any blemish or suspicion, must

impress the court as wholly truthful, must appear to be natural and so

convincing that the court has no hesitation in recording a conviction solely

on the basis of the testimony of a single witness.”

19. We may also refer to Ram Ashrit Ram v. State of Bihar, (1981) 2 SCC

60 which was cited before us by learned counsel for the Appellants. In that

case, the Supreme Court observed that where the witnesses are interrelated

or otherwise interested in the prosecution, their testimony has to pass the test

of “close and severe scrutiny” before it can be safely acted upon.

20. The law as it stands, therefore, is that

Conviction can be based on the sole testimony of a witness. There is no bar

against it.

However, the testimony of such a witness should be viewed with caution and

circumspection. The appropriate test to apply would be the “close and

severe scrutiny” test.

If the witness is reliable, then it does not matter if he is partisan or interested

or both.

The evidence of a sole witness should be of sterling quality, natural and

convincing enough to record a conviction.

Ergo, if there is some doubt then a conviction ought not to be based on the

testimony of a sole witness.

There would, of course, be some notable exceptions, as for example in a

case of sexual assault, but we are not concerned with such a case.

21. On the basis of the law laid down, learned counsel tried to discredit

Radhey Shyam, and in this connection, it was firstly contended that the

testimony of this witness is unnatural and suspicious and, therefore, ought

not to be given any credence.

22. According to Radhey Shyam, while he, Laxmi and her daughter (who

was at that time about 1½ to 2 years of age) were sleeping in one room, the

Appellants broke open the door at about 1.30 am. Appellant Shiv Singh was

armed with a knife, Appellant Raghubir Singh was armed with an iron pipe

and Appellant Shri Prakash was armed with an iron rod (sariya). Radhey

Shyam says that Raghubir Singh gave a blow with the iron pipe on Laxmi's

head and Shiv Singh caught hold of her hair and inflicted a knife blow on

her neck. Shri Prakash and Raghubir Singh inflicted blows on the head and

chest of Radhey Shyam with the iron pipe and sariya as a result of which he

sustained some injuries. Thereafter, the Appellants left the room saying

“kaam tamam ho gaya hai”.

23. It appears that Radhey Shyam then picked up Laxmi's daughter and

left her with a Nepali chowkidar nearby and went towards Mayapuri chowk

to inform the police about the incident. The chowk was about half a mile

away and there he was met by Inspector R.S. Nehra, PW-15. Radhey Shyam

got into his jeep and went along with him to the site. He told Inspector R.S.

Nehra that his wife Laxmi had been killed but when asked to give a

statement, he said that he was in severe pain. Accordingly, Inspector R.S.

Nehra sent Radhey Shyam to a hospital in his jeep along with Head

Constable Charan Singh, PW-4. Radhey Shyam was examined in the

hospital and the injuries on his person were noted. The MLC prepared in

respect of Radhey Shyam by Dr. C. Vittal Prasad, PW-2 stated that Radhey

Shyam was brought with a history of an assault. The names of the

Appellants were not mentioned. After medical treatment, Radhey Shyam

was brought back to the scene of crime. It is unclear when Radhey Shyam

reached the scene of crime because according to Inspector R.S. Nehra, he

was sent to the hospital at about 3.15 am and returned at about 4.15 – 4.30

am while according to Radhey Shyam, it took him about two hours in the

hospital. Be that as it may, the statement of Radhey Shyam was then

recorded in which he stated that Laxmi was murdered by the three

Appellants. Thereafter, inquest proceedings were conducted.

24. According to learned counsel, it is extremely odd that when Radhey

Shyam was picked up by Inspector R.S. Nehra in his jeep and he informed

the Inspector about the murder of his wife, he did not name the assailants.

Even when they reached the scene of crime, the assailants were not named.

Similarly, when Radhey Shyam was taken to the hospital he did not name

the assailants. It is only when he returned after treatment from the hospital

that he allegedly named the assailants for the first time just before the

inquest proceedings, but the inquest proceeding do not record the names of

the assailants. It was also submitted that it is rather odd that none of the

police officers present at the scene of crime made any inquiry from him

about who were the assailants. It was submitted that if such an inquiry had

been made, perhaps immediate steps could have been taken to apprehend the

assailants and that those steps might even have been successful.

25. We agree with learned counsel that the conduct of Radhey Shyam is

quite odd. In the first place, he did not (quite apparently) inform the Nepali

chowkidar about the incident or give him the names of the assailants. When

he met Inspector R.S. Nehra at Mayapuri chowk, he did not inform him the

names of the assailants. When he reached the scene of crime with Inspector

R.S. Nehra, there also he did not inform any of the police officers the names

of the assailants. Even the doctor in the hospital was kept in the dark, which

may perhaps be understandable. But not informing the police officers to

whom he had gone to complain or those who had come to investigate the

crime appears to be rather inexplicable. To make matters worse, none of the

police officers made any attempt to find out, with some degree of

promptitude and dispatch, as to who were the assailants. That the assailants

were named just before the inquest proceedings (although the inquest report

Exhibit PW-13/C does not record that) does not help the prosecution,

because by then several hours had elapsed. The complete lack of any interest

at the earliest point of time to identify the assailants, both by Radhey Shyam

or the police, is rather unusual, to say the least.

26. In a slightly different context, in Jagir Singh v. State (Delhi Admn.),

AIR 1975 SC 1400 the Supreme Court noted that the name of the assailant is

a very important part of the information in regard to an incident. If a witness

does not name the assailant, then the police officer should get the

information from him, if the witness knew it. Even then, if the name of the

assailant is not made available, the “irresistible inference” must be that the

witness did not know the name of the assailant, or, we may add, the witness

did not want to disclose it for whatever reason. Applying this logic to the

present case, we must conclude that either Radhey Shyam did not know the

names of the assailants (which is unlikely) or that he withheld their names

for some inexplicable reason or that the Appellants were not the assailants.

27. In Raj Kumar v. State, 67 (1997) DLT 486 (DB), this Court observed

that the “normal and natural reaction” of the uncle of the injured would be to

divulge the name of the assailant to the father of the injured. If we transpose

this observation to the facts of the present case, it must be held that the

“normal and natural reaction” of Radhey Shyam would be to divulge the

names of the Appellants who had murdered his wife, at the earliest, to

Inspector Nehra or the police officers who had come to investigate the case.

28. Failure to record the names of the assailants in the brief facts of the

inquest led the Supreme Court to observe in Balaka Singh v. State of Punjab,

AIR 1975 SC 1962 that

“... the omission of the names of the four accused acquitted by the High

Court in the inquest report was a very important circumstance which went in

favour of the four accused. This omission has a twofold reaction. In the first

place, it throws doubt on the complicity of the four accused acquitted by the

High Court and secondly it casts serious doubt on the veracity and

authenticity of the F.I.R. itself.”

Under these circumstances, we agree with learned counsel that the conduct

of Radhey Shyam and the police casts some doubt on the credibility of the

testimony of Radhey Shyam and the investigation into the case.

29. It was submitted, secondly, that there was considerable discrepancy in

the timings when Inspector R.S. Nehra is said to have met Radhey Shyam.

According to Inspector Nehra, he received information about the incident at

2.45 am and he met Radhey Shyam at about 3.00 am. They both reached the

scene of crime at about 3.10 am. On the other hand, Head Constable Charan

Singh stated that he reached the scene of crime within five minutes of

receiving the information at 2.07 am and about 5 to 7 minutes later,

Inspector Nehra reached the scene of crime making it that Inspector Nehra

reached the scene of crime at about 2.15 am. On the other hand, Constable

Yaqoob Ali, PW-9 who had accompanied Head Constable Charan Singh to

the scene of crime confirmed that they reached there within 5 to 7 minutes of

the receipt of information but strangely that Radhey Shyam was present at

the scene of the crime.

30. We do not think that much can be made about this discrepancy in

timings particularly in view of the fact that these witnesses were examined

several years after the incident. Head Constable Charan Singh and

Constable Yaqoob Ali were examined in February-March, 1992, that is,

about five years after the incident while Inspector R.S. Nehra was examined

in March, 2001, that is, about 14 years after the incident. There are bound to

be some discrepancies in timings in view of the delay which, in any event,

do not appear to be material.

31. Moreover, on a consideration of the evidence before us, it does appear

that Radhey Shyam met Inspector Nehra, as stated by the inspector, at about

3.00 am because the MLC in respect of Radhey Shyam (Exh.PW-11/A)

shows that he had reached the hospital at about 3.20 am. This is consistent

with the statement of Inspector Nehra rather than with the statements of

Head Constable Charan Singh and Constable Yaqoob Ali. The discrepancies

mentioned above do not cast any serious overall doubt on the testimony of

Radhey Shyam.

32. The third submission in this regard related to the delay in the alleged

statement given by Radhey Shyam implicating the Appellants in the crime.

This is really a different facet of the first contention. It may be recalled that

after Radhey Shyam came back from the hospital, he made a statement in

which he blamed the Appellants for the murder of Laxmi and the attack on

him. Thereafter, the inquest proceedings were held but in the inquest

proceedings there is no mention of the names of the assailants. Learned

counsel used this circumstance not only to submit that the assailants were

not named at all, but also that if they were named, it was after an inordinate

delay. We find some merit in this contention inasmuch as Inspector Nehra

has stated in his cross-examination that Radhey Shyam returned from the

hospital at about 4.15 – 4.30 am. The inquest proceedings were prepared

after his arrival and after the statement of Radhey Shyam was recorded.

Inspector Nehra does not indicate when the statement of Radhey Shyam was

recorded nor does he indicate when the inquest proceedings were held but he

does say that he remained busy at the spot for about 5 to 6 hours and reached

the police station around 12.00 noon after making enquiries. Radhey Shyam

states that he returned from the hospital at about 11.00 am. This is clearly

not possible because he says that he was at the hospital for about two hours,

having reached there at about 3.20 am as we have found. In other words,

Radhey Shyam returned to the scene of crime at about 5.00 or 5.30 am and

certainly not at 11.00 am as mentioned by him. If it is taken that the inquest

proceedings were conducted at around 11.00 am, which is quite possible, it

makes the situation even worse for the prosecution because the enormous

delay in recording the statement of Radhey Shyam just before the inquest

proceedings is inexplicable. The delay in recording his statement and the

fact that the names of the Appellants were not mentioned in the inquest

proceedings leads us to believe that the names of the assailants were

withheld unreasonably for a couple of hours and for no apparent cause.

33. It was submitted that on a cumulative appreciation of these facts

concerning the testimony of Radhey Shyam and his interest in the case, the

Court is required to separate the grain from the chaff but in this case both the

grain and the chaff are inextricably linked up. It was submitted that what

this Court has to see is not what may be true but what must be true and the

suspicious testimony of Radhey Shyam indicates that what he has stated may

be true but there is some manner of doubt in the correctness of his statement

and so it cannot positively be said that what he has stated must be true.

34. We agree with learned counsel, both on facts and in law. As far back

as in 1957, the Supreme Court said, in Sarwan Singh Rattan Singh v. State

of Punjab, AIR 1957 SC 637 that,

“It is no doubt a matter of regret that a foul cold-blooded and cruel murder

like the present should go unpunished. It may be as Mr. Gopal Singh

strenuously urged before us that there is an element of truth in the

prosecution story against both the appellants. Mr. Gopal Singh contended

that, considered as a whole the prosecution story may be true; but between

'may be true' and 'must be true' there is inevitably a long distance to travel

and the whole of this distance must be covered by legal, reliable and

unimpeachable evidence.”

35. While relying upon Sarwan Singh Rattan Singh, the Supreme Court

said in Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC 377

that,

“... the law does not permit the courts to punish the accused on the basis of

moral conviction or on suspicion alone. The burden of proof in a criminal

trial never shifts, and it is always the burden of the prosecution to prove its

case beyond reasonable doubt on the basis of acceptable evidence.”

36. Similarly, in Dasari Siva Prasad Reddy v. The Public Prosecutor,

(2004) 11 SCC 282, the Supreme Court observed,

“A strong suspicion, no doubt, exists against the appellant but such

suspicion cannot be the basis of conviction, going by the standard of proof

required in a criminal case. The distance between 'may be true' and 'must be

true' shall be fully covered by reliable evidence adduced by the prosecution.”

37. While dwelling on the actual attack as described by Radhey Shyam, it

was submitted by learned counsel that the inflicting of a sariya blow on

Radhey Shyam by Shri Prakash was an improvement over what Radhey

Shyam had stated before the police during investigations. In this regard,

reference was made to the site plan that was prepared by Balbir Singh, PW-1

on 7th April, 1987. As per the site plan, Raghubir Singh is shown to have

attacked Radhey Shyam with an iron pipe and there was nothing to show

that Shri Prakash attacked Radhey Shyam with a sariya. This by itself is

inadequate, but if it is coupled with his statement given under Section 161 of

the CrPC, wherein Radhey Shyam had not stated that Shri Prakash had hit

him with a sariya, then it is quite clear that there is an improvement between

the statement made during investigations and during the trial. In Dhanna v.

State of Madhya Pradesh, 1996 Cri.LJ 3516, the Supreme Court approved

the reasoning given by the trial court to the effect that when a statement is

made to the police during investigation and that is improved at the trial, then

a conviction for the offence of murder ought not to be passed.

Consequently, it is certainly not possible for us to uphold the conviction of

Shri Prakash for the murder of Laxmi or for that matter even for the attempt

to murder Radhey Shyam.

38. Learned counsel for Shri Prakash made an additional contention, with

which we agree, that Shri Prakash had no common intention with the other

Appellants to commit the offences that he was charged with. In Badruddin

v. State of Uttar Pradesh, (1998) 7 SCC 300, the Supreme Court observed as

follows:-

“Though establishing common intention is a difficult task for the

prosecution, yet, however difficult it may be, the prosecution has to establish

by evidence, whether direct or circumstantial, that there was a plan or

meeting of mind of all the assailants to commit the offence, be it prearranged

or on the spur of the moment but it must necessarily be before the

commission of the crime.”

39. There is no evidence for us to conclude that before the attack on her,

Shri Prakash had any intention to kill Laxmi, more particularly since he did

not even attack her as per the statement of Radhey Shyam. It is also

extremely doubtful whether Shri Prakash had any intention to murder

Radhey Shyam. That Shri Prakash perhaps had a serious grudge against

Radhey Shyam because his wife was living with him is no reason to

conclude that he had wanted to murder Laxmi or Radhey Shyam or both.

The mere existence of a motive cannot form the basis of a conviction. In

Narsinbhai Haribhai Prajapati v. Chhatrasinh, AIR 1977 SC 1753, the

Supreme Court went a little further and held, on the facts of that case where

there was an existence of a motive and recovery of bloodstained clothes and

the weapon of offence, in view of the evidence on record, that was not

sufficient reason to return a finding of conviction.

40. The testimony of Radhey Shyam may be true but in view of some

inexplicable gaps we cannot hold that his testimony must be true. We are,

therefore, unable to completely accept his testimony to uphold the

conviction of the Appellants in so far as the first part of the case is

concerned.

41. In support of his case, learned counsel for the Appellants sought to

place reliance upon the testimony of the daughter of Shri Prakash and

Laxmi, that is, Sunita Mouriya, DW-1. We find that she was about 1½ to 2

years of age when the incident occurred and her oral testimony was recorded

after about 15 years when she was aged about 17 years. Under these

circumstances, we cannot, and do not, place any reliance on what she

narrated in Court which, we may incidentally mention, is far too vivid a

description of what had transpired.

42. In so far as the second part of the case is concerned, we find that the

prosecution is on an even stickier wicket. Learned counsel for the Appellants

raised two contentions in respect of this part of the case. The first

submission related to the arrest of the Appellants while the second

submission related to the recovery of the knife said to have been used by

Shiv Singh in the attack on Laxmi.

43. The Appellants were arrested from somewhere near the bushes and

Mazar close to the railway line in Inderpuri. They were located as a result of

some information received by the police from a secret informer. Inspector

Babu Lal, PW-14 and Inspector R.S. Nehra, PW-15 along with Sub

Inspector Budh Ram, PW-13 and some others, were the officers who had

arrested the Appellants on the basis of the secret information.

44. According to Sub Inspector Budh Ram, the police party reached the

scene of arrest at about 2.00 pm and since it was a factory area there was no

abadi nor were there any jhuggis nearby but nobody was called from the

factory area to be present at the time of the arrest. This witness stated that

the Appellants were wearing bloodstained clothes and possession was taken

of these bloodstained clothes. The Appellant Shiv Singh made a disclosure

statement to the effect that the knife used in the attack on Laxmi was hidden

in plot No.C-210, Mansarovar Garden.

45. Inspector Babu Lal confirmed the statement made by Sub Inspector

Budh Ram, PW-13 to the effect that no one was available at the time of

arrest although he did state that two or three persons had passed near the

railway line who were requested to join the investigation but they declined.

He also stated that the Appellant Shiv Singh had made a disclosure

statement as a result of which the knife kept under a heap of sand was found

at C-210, Mansarovar Garden. Inspector R.S. Nehra, PW-15 confirmed

what the other two witnesses, namely, Sub Inspector Budh Ram, PW-13 and

Inspector Babu Lal, PW-14, had stated.

46. According to learned counsel, the information received by the police

could not be relied on because the secret informer was not produced in the

witness box. In support of this contention, reliance was placed upon Kanhai

Mishra v. State of Bihar, (2001) 3 SCC 451. We are afraid that learned

counsel has misread the decision of the Supreme Court. In that case, the

circumstance that was used against the appellant was that after having

committed an offence of rape, he had absconded from his house. The

evidence in this regard, as per the investigating officer, was that he had

received secret information to the effect that the appellant was seen fleeing

away wearing only his undergarments. The Supreme Court noted that the

investigating officer did not state from whom he received the secret

information and as such that information cannot be made the basis to prove

the circumstance being used against the appellant. That was, therefore, a

clear case of hearsay evidence which is hit by Section 60 of the Indian

Evidence Act, 1872.

47. Similarly, in Bhugdomal Gangaram v. State of Gujarat, (1984) 1 SCC

319, accused No.3 and 5 were convicted on the basis of the evidence of a

witness to the effect that he had received information that a truck would be

carrying liquor to Ahmedabad and accused No.3 and some other persons

would be coming in a taxi behind the truck. In that context, the Supreme

Court observed that since the informant had not been examined, evidence to

the effect given by the witness that he was informed that accused No.3

would be coming behind the truck in a taxi was not admissible. In that case,

the Supreme Court was considering the provisions of Section 66(1)(b) of the

Bombay Prohibition Act, 1949 (under which accused No.3 was convicted)

and that Section lays down that whoever in contravention of the provisions

of the Act or of any rule, regulation or order made or of any licence, permit,

pass or authorisation issued under the Act, consumes, uses, possesses or

transports any intoxicant (other than opium) or hemp shall, on conviction, be

punished suitably and as such accused No.3 could not be connected with the

truck carrying prohibited liquor.

48. In so far as the present case is concerned, there is no secret

information that is being used against the Appellants as a circumstance to

base a conviction. The information was only with regard to the presence of

the accused at a particular place. Their presence near the Mazar was not a

circumstance leading to their conviction; it was only a circumstance that led

to their apprehension and nothing more. We, therefore, do not find the two

judgments cited by learned counsel to be of any relevance to the facts of the

present case.

49. With regard to the recovery of bloodstained clothes that the

Appellants were wearing, it was submitted that it is extremely unlikely that

three or four days after the murder, the Appellants would still be roaming

around wearing bloodstained clothes. It was submitted that this was highly

improbable. Reliance was placed upon Khalil Khan v. State of Madhya

Pradesh, (2003) 11 SCC 19. In the cited decision, the Supreme Court

observed:

“…. the incident in question had taken place on 6-4-1986 and the accused

was arrested only on 11-4-1986, nearly four days thereafter. We find it

extremely difficult to believe that a person who is involved in such a serious

crime like murder would still be wearing clothes which are bloodstained

even four days after the murder which fact we find is opposed to normal

human conduct.”

We are of the view that the decision relied upon is quite appropriate. We

find it difficult to believe that in a crowded city like Delhi, the Appellants

(not one but all three) would continue to wear bloodstained clothes. Surely

they could be credited with the sense, or at least one of them could be

credited with the sense to remove the bloodstained clothes. Reference may

also be made to Latoori Lal v. The State, 24 (1983) DLT 241, which was a

slightly more extreme case where the accused was arrested after 11 days of

the occurrence and was still wearing bloodstained clothes. This Court found

it difficult to believe the evidence.

50. It was also contended that even though witnesses could have easily

been procured from the factory or the nearby market area, the police took no

steps to get some independent persons at the time of recovery of the

bloodstained clothes of the Appellants. The mention about two or three

persons who had passed by the area but who refused to join in the

investigations was a cooked up story. We have already dealt with this issue.

It was also contended that the seizure memos in respect of the clothes as

well as the knife were not signed by any of the Appellants and, therefore,

cannot be trustworthy.

51. In this context, learned counsel also contended that as per the CFSL

report, the blood group of Laxmi was 'B' and that blood group was found on

the pajama of Shri Prakash even though the admitted position is that he had

not attacked her but had only attacked Radhey Shyam. We do not think very

much can be read into this. It is possible that when blood spurted out from

the body of Laxmi it may have fallen on the pajama of Shri Prakash since

the attack was not in a very large room. Consequently, the presence of 'B'

group bloodstains of Laxmi on the pajama of Shri Prakash is of no material

consequence.

52. With regard to the recovery of the knife from C-210, Mansarovar

Garden, the contention of learned counsel was that it was an open plot and

accessible to all. Consequently, the recovery of the knife from that area

does not in any manner implicate Shiv Singh or for that matter any of the

Appellants. Reliance was placed upon Salim Akhtar v. State of Uttar

Pradesh, 2003 SCC (Cri) 1149. In that case, a pistol was allegedly

recovered at the pointing out of the appellant, but the pistol was not sealed at

the spot, nor was its number or make noted to fix its identity. These

omissions raised considerable doubt about the factum of recovery. We do

not see how this case helps the Appellants as it is based on a completely

different set of facts. Learned counsel relied upon a decision referred to in

Salim Akhtar and that decision is Raosaheb Balu Killedar v.State of

Maharashtra, 1995 CriLJ 2632. The latter decision makes rather interesting

reading. In that case, the appellant had stated, “Revolver is concealed at

Dadar. Come on. I will point out the place and revolver.” The Supreme

Court held that the statement was capable of being interpreted to mean that

the appellant had the knowledge about the concealment of the revolver at the

particular place from where it was recovered and not that he had concealed

the revolver. We do not see how this decision helps learned cousel.

53. In State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370, the

Supreme Court considered the argument with regard to recovery of an object

from a place “open or accessible to others”. The Supreme Court explained

that what is important is not whether the place is accessible to others but

whether the object was ordinarily visible to others. If it is not, then whether

the place from which it was recovered is accessible to others or not is not

material. This is what the Supreme Court had to say

“There is nothing in Section 27 of the Evidence Act which renders the

statement of the accused inadmissible if recovery of the articles was made

from any place which is “open or accessible to others”. It is a fallacious

notion that when recovery of any incriminating article was made from a

place which is open or accessible to others, it would vitiate the evidence

under Section 27 of the Evidence Act. Any object can be concealed in

places which are open or accessible to others. For example, if the article is

buried in the main roadside or if it is concealed beneath dry leaves lying on

public places or kept hidden in a public office, the article would remain out

of the visibility of others in normal circumstances. Until such article is

disinterred, its hidden state would remain unhampered. The person who hid

it alone knows where it is until he discloses that fact to any other person.

Hence, the crucial question is not whether the place was accessible to others

or not but whether it was ordinarily visible to others. If it is not, then it is

immaterial that the concealed place is accessible to others.”

It is in this context that decisions regarding recovery of an object from an

open and accessible place have to be considered. In Trimbak v. State of

Madhya Pradesh, AIR 1954 SC 39, the Supreme Court considered the

recovery of ornaments from an open field accessible to all and applied the

“compatibility cum knowledge test” namely that the fact of recovery by the

accused should be compatible with the circumstance of somebody else

having placed the articles in the open field and of the accused somehow

acquiring knowledge about their whereabouts.

54. Reliance placed by learned counsel for the Appellants on Maruti

Rama Naik v. State of Maharashtra, JT 2003 (7) SC 627 is somewhat

misplaced for the reason that recovery in that case was made from a place

which was easily accessible to other persons and also the fact that recovery

was made almost 9 days after the incident in question. On these facts, this

decision does not advance the case of the Appellants in any manner

whatsoever.

55. We are also unable to appreciate the relevance of Aslam Parwez v.

Govt. of NCT of Delhi, (2003) 9 SCC 141. That was a case where the

accused had been convicted under Section 5 of the Terrorist and Disruptive

Activities (Prevention) Act, 1987 (for short TADA) where mere possession

of an unauthorised arm or ammunition was punishable. In that case, the

Supreme Court noted several factors to disbelieve the recovery even though

the revolver was recovered after digging out the earth. It was noted that no

public witness was involved in the recovery; the recovery had been made

after 8 months; the recovery was made from an open place by the side of a

building under construction; the area was accessible to all and everyone

including those who were engaged in the construction of the building.

Under these circumstances, the Supreme Court took the view that mere

knowledge of the accused about the place where the offending arm was kept

does not amount to conscious possession so as to result in a conviction under

Section 5 of TADA.

56. We are of the view that even though C-210, Mansarovar Garden

might have been accessible to all and sundry, there is no way that Shiv Singh

could have known about the knife being hidden under a pile of sand in that

plot if he was not the person who had hidden it. But the contention of

learned counsel for the Appellants is that Shiv Singh had not hidden the

knife under the heap of sand and in fact no recovery was made from C-210,

Mansarovar Garden. According to him, the entire recovery was cooked up.

In support of this, learned counsel pointed out that the seizure memo does

not bear the signature of any independent witness but only of the police

officers who had arrested the Appellants.

57. Reliance was placed upon Jackran Singh v. State of Punjab, AIR 1995

SC 2345 wherein an observation was made to the effect that the disclosure

statement inspires no confidence, inter alia, because it does not bear the

signatures or thumb impression of the appellant. The Supreme Court went

on to say that:

“The absence of the signatures or the thumb impression of an accused on the

disclosure statement recorded under Section 27 of the Evidence Act detracts

materially from the authenticity and the reliability of the disclosure

statement.”

A reading of the judgment indicates that one of the other factors that the

Supreme Court took into consideration for making this observation is that

none of the panch witnesses were examined at the trial. That is not so in the

present appeal.

58. In State, Govt. of NCT of Delhi v. Sunil, (2001) 1 SCC 652, the

Supreme Court made some extremely categorical observations which are

worth quoting. It was stated as follows:

“Hence it is a fallacious impression that when recovery is effected pursuant

to any statement made by the accused the document prepared by the

investigating officer contemporaneous with such recovery must necessarily

be attested by the independent witnesses. Of course, if any such statement

leads to recovery of any article it is open to the investigating officer to take

the signature of any person present at that time, on the document prepared

for such recovery. But if no witness was present or if no person had agreed

to affix his signature on the document, it is difficult to lay down, as a

proposition of law, that the document so prepared by the police officer must

be treated as tainted and the recovery evidence unreliable. The court has to

consider the evidence of the investigating officer who deposed to the fact of

recovery based on the statement elicited from the accused on its own worth.”

It was then held:

“Hence when a police officer gives evidence in court that a certain article

was recovered by him on the strength of the statement made by the accused

it is open to the court to believe the version to be correct if it is not otherwise

shown to be unreliable. It is for the accused, through cross-examination of

witnesses or through any other materials, to show that the evidence of the

police officer is either unreliable or at least unsafe to be acted upon in a

particular case. If the court has any good reason to suspect the truthfulness

of such records of the police the court could certainly take into account the

fact that no other independent person was present at the time of recovery.

But it is not a legally approvable procedure to presume the police action as

unreliable to start with, nor to jettison such action merely for the reason that

police did not collect signatures of independent persons in the documents

made contemporaneous with such actions.”

59. In view of the explicit statement of law enunciated by the Supreme

Court, we are not in a position to hold that merely because the recovery was

not witnessed by an independent person or that the recovery memo was not

signed by the Appellants ipso facto means that the recovery is doubtful.

60. However, we are of the opinion that the entire second part of the case

is rather doubtful beginning with the arrest of the Appellants while they

were wearing bloodstained clothes. Since we are not prepared to accept that

part of the case, the entire subsequent events sought to be relied upon by the

prosecution are also not quite convincing. Even the recovery of the

bloodstained knife could have been cooked up in the circumstances of the

case, as contended. In this context, we feel that to bring some credibility to

the recovery of the knife, it would have been appropriate if the recovery had

been made either in the presence of some independent persons or the

recovery memo was signed by the Appellants, but that has not happened.

61. Before parting with this case, we may notice one odd fact. When

Radhey Shyam went to inform the police about the incident, he left Laxmi's

daughter with the Nepali Chowkidar. Later, the Nepali chowkidar was a

witness to the inquest proceedings and his statement was also recorded. Yet,

he was not called to the witness box by the prosecution despite being the

first person that Radhey Shyam met after the incident. We do not know

why.

62. Under the circumstances, we find it difficult to accept the version of

the prosecution as being the gospel truth. We allow the appeal and set aside

the conviction of all the Appellants. They should be set at liberty forthwith

unless they are required in some other case.

63. In view of the efforts put in by Mr. Vishal Gosain, Advocate, we

direct the State to pay him a fee of Rs.5,500/- (one set) within six weeks

from today.

Sd/-

Madan B. Lokur, J

Sd/-

Aruna Suresh, J

Certified that a corrected copy of the judgment has been transmitted in the

main Server.