Delhi High Court
Pradeep Gandhi vs State (Govt. Of Nct Of Delhi) on 18 January, 2010
Author: Ajit Bharihoke
Bench: A.K. Sikri, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: January 06, 2010
Judgment delivered on : January 18, 2010
+ CRIMINAL APPEAL NO.76/1997
PRADEEP GANDHI ..... APPELLANT
Through: Mr. Gaurav Gandhi, Advocate
Versus
STATE (GOVT. OF NCT OF DELHI) ..... RESPONDENT
Through: Mr. Pawan Sharma, Standing Counsel
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be
reported in Digest ? Yes
AJIT BHARIHOKE, J.
1. This appeal is directed against the impugned judgment dated 20.11.1996 convicting the appellant under Section 302 IPC for committing murder of Ms. Shanno Bhandari and the order on sentence of the even date in terms of which the appellant has been sentenced to undergo imprisonment for life and also to pay a fine of Rs.2000/- and in default of payment of fine, to undergo RI for further period of six months.
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2. Briefly stated, case of the prosecution is that on 31.10.1994 at around 3:25 pm, wireless operator No.58 informed the duty officer, PS Civil Lines that Head Constable Kesar Dev (PW12) of police control room has informed that a person has been stabbed at 27, Sri Ram Road. Aforesaid information was recorded in the daily diary as DD No.9A (Ex.PW14/A) and a copy thereof was handed over to SI Badlu Khan(PW19) for verification, who along with Constable Dalbir Singh No.655N (PW 11) left for the spot of occurrence, i.e., a kitchen forming part of House No.27, Sri Ram Road. SI Badlu Khan found the dead body of a lady aged about 65 years, whose name on inquiry was disclosed as Smt. Shanno Bhandari, lying in a pool of blood in the kitchen and the adjoining residential room appeared to be normal. There were multiple wounds on the dead body, which appeared to have been caused with a 'churra' (dagger) Ex.P-5 found lying on the spot. No eye witness was available at the spot. SI Badlu Khan prepared the rukka Ex.PW15/A, requesting the duty officer to register a case under Section 302 IPC and sent it to the Police Station through Constable Dalbir Singh (PW11). On the basis of said rukka, formal FIR No.362/94 (Ex.PW15/B), PS Civil Lines was registered and copy of the police file together with the rukka was sent to SHO through Constable. The dog squad, photographer and crime team were also informed and requested to reach at the spot. Copies of the FIR were sent to the higher authorities through special messenger Constable Lal Singh (PW16).
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3. On the receipt of the copy of FIR, the SHO Inspector B.S. Dahiya (PW24) reached at the spot of occurrence. He inspected the spot and prepared the rough site plan Ex.PW24/A. The crime team also reached at the spot and it was got photographed. The „chhura‟ Ex.P-5 was seized and its sketch Ex.PW19/C was prepared and thereafter it was taken into possession vide memo Ex.PW19/A after converting it into a sealed packet. The SHO also lifted the blood from five different spots and took those samples into possession vide memo Ex.PW19/B. The Investigating Officer also conducted inquest proceedings and recorded statements of Ram Niwas (PW4), Sri Niwas and Smt. Krishna(PW6), Exhibits PW4/A, PW24/B and PW24/C respectively. He filled up the inquest form Ex.PW24/D and sent the dead body of the deceased to the mortuary, Civil Lines Hospital for post mortem examination. He also made a written request for preserving the blood as well as the clothes of the deceased. The Doctor concerned handed over some gold ornaments, i.e., a gold ring, a pair of tops and a pendent belonging to the deceased to Constable Dalbir Singh (PW11), which were seized after converting them into a sealed parcel vide memo Ex. PW10/A. The clothes of the deceased were also handed over by the Doctor concerned to Constable Dalbir Singh, which were again converted into sealed packets and taken into possession. The dead body of the deceased was identified by Shri Raman Bhandari and Yogeshwar Lal (PW3), son and brother of the deceased. Crl. A.No.76/1997 Page 3 of 18
4. On 14.11.94, special staff of North District arrested the appellant Pradeep Gandhi and he made a disclosure statement regarding his involvement in case FIR No.362/94. On the receipt of this information, Inspector B.S. Dahiya (PW24), SI Rishi Ram (PW23), SI Badlu Khan (PW19) and other staff reached at Tis Hazari Courts and formally arrested the appellant and obtained his police custody remand. Investigating Officer also collected the disclosure statement Ex.PW21/A made by the appellant to the special staff. The appellant, after his formal arrest, was sent to Civil Hospital for his medical examination and his blood samples, collected by the doctor, were seized vide memo Ex.PW24/G. The appellant pursuant to his disclosure statement led the police party to his house situated at near Kakrola More, Uttam Nagar and from there he recovered a shirt, pant and a pair of shoes having faint blood stains, which were seized vide memo Ex.PW7/A. The appellant had injury on his right hand finger and he disclosed that he had suffered that injury while committing the crime and also disclosed that he took treatment from a Doctor at Uttam Nagar. Thereafter, the appellant led the police party to the shop of said Dr. Ravinder Amraik, (PW1), who identified the appellant and confirmed treating him on 31.10.94. Thereafter, the appellant led the police party to the jewellery shop of Pradeep Kumar (PW17) at Dariba, Chandni Chowk and the shop owner Pradeep Kumar produced one gold chain and claimed that said gold chain was pawned with him by the appellant in consideration of Rs.3200/-. He also produced a 'girvinama' Ex.PW17/A Crl. A.No.76/1997 Page 4 of 18 pertaining to that gold chain. Said gold chain and 'girvinama' were seized by the police.
5. On 15.11.94, on further interrogation, the appellant disclosed that he also took away the purse of the deceased containing some money and papers which he had kept at his house. Pursuant to that disclosure statement Ex.PW19/E, the appellant led the police party again to his house and produced a lady‟s purse from a box kept in his room. The purse contained some letters having name and address of the deceased and an envelope etc. Those articles were seized vide memo Ex.PW17/C. The appellant also led the police party to a knife shop at Nai Sarak where the shop owner Harnam Singh (PW18) identified the appellant and claimed that the appellant had purchased a chhuri from him on 28.10.94.
6. Statements of witnesses were recorded under Section 161 Cr.P.C. and on completion of investigation, a challan was filed against the appellant. The appellant was charged under Section 302 IPC for the murder of Ms. Shanno Bhandari. The appellant pleaded not guilty to the charge and claimed trial.
7. In order to bring home the guilt of the appellant, prosecution examined 24 witnesses. Material witnesses, however, are PW1 Dr. Ravinder Amraik , PW7 Amar Singh, PW8 Dr. Vandana Bagga, PW17 Pradeep Kumar and PW18 Harnam Singh, besides the police officials. Crl. A.No.76/1997 Page 5 of 18
8. PW1 Dr. Ravinder Amraik is running a clinic at Kakrola More, New Delhi. He deposed on the basis of the register of patients maintained by him and stated that as per the entry in the said register, one Pradeep Gandhi aged 22 years visited his clinic with injury on the little finger of his right hand and he did dressing of the said injury. PW1 stated that the appellant appeared to be the same Pradeep whom he had treated for the finger injury. The witness, however, has not proved the register or the relevant entry nor had he given the date on which he treated Pradeep Gandhi.
9. PW7 Amar Singh is the owner of RZ-C/228, Patel Garden, Kakrola More, Uttam Nagar, Delhi. He deposed that the appellant was a tenant in his house in respect of a room on monthly rent of Rs.400/-. This witness was examined by the prosecution to prove the recovery of the blood-stained pant, shirt and a pair of shoes from the said tenanted premises at the instance of the appellant on 14.11.94 and also the recovery of a lady‟s purse containing an envelope bearing the name of the deceased with her address, two photographs of her son Raman Bhandari, a letter and two papers written in English at the instance of the appellant on 15.11.94. He, however, did not support the prosecution version. He was cross-examined at length by learned APP but to no avail.
10. PW8 Dr. Vandana Bagga, Medical Officer civil Lines, Rajpur Road stated that on 14.11.94 at about 5:45 pm, she examined the appellant Crl. A.No.76/1997 Page 6 of 18 who was brought to the Civil Hospital by SI Rishi Ram and on medical examination, she found a healed scar mark on the right index finger of the appellant. The above injury was simple in nature and was more than a week old. She further stated that she collected the blood sample of the appellant which was sealed in her presence and handed over to the Investigating Officer SI Rishi Ram. She proved the MLC of the appellant Ex.PW8/A. In the cross-examination, the witness stated that the injury had already healed, therefore, no definite opinion could be given if it was caused by a sharp edged or any other weapon.
11. PW17 Pradeep Kumar is running a jewellery shop at IInd floor, 1666, Dariba Kalan, Delhi. He stated that the appellant had pawned a gold chain weighing 20 gm with him for a consideration of Rs.3200/- and executed the „girvinama‟ Ex.PW17/A. He further deposed that on 14.11.94, the appellant led the police to his shop and thereafter he produced one gold chain Ex.P-3 and a „girvinama‟ Ex.PW17/A, which were seized vide memo Ex.PW17/B.
12. PW18 Harnam Singh stated that he was running scissor/knife shop in the name of Meerut Saan and Scissor at Nai Sarak, Chandni Chowk. He claimed that in the month of October, 1994, the appellant purchased one 'chhuri‟ Ex.P-5 from his shop for Rs.25/-. He identified said 'chhuri' in the court. In the cross-examination, he denied the suggestion that the appellant did not purchase said 'chhuri' from him. Crl. A.No.76/1997 Page 7 of 18
13. PW22 ASI Ram Kumar and PW21 Constable Mukesh Kumar have given more or less similar version in the court. They have stated that on 14.11.94 at around 7/7:30 am, they were making an effort to obtain information regarding the culprit pertaining to the instant case FIR No.362/94, PS Civil Lines. When they reached Kakrola More, Uttam Nagar and made inquiry about Pradeep Gandhi, they came to know that a person by the name of Pradeep Gandhi had recently occupied a portion of house No.RZ-228, Patel Garden as a tenant. Thus, they went to the said house and met the appellant. On their inquiry about Pradeep Gandhi, the appellant initially told them that no person by the name Pradeep Gandhi was residing there. When they persisted with their inquiry and expressed their suspicion against the appellant, he finally admitted that he was Pradeep Gandhi. On further interrogation, the appellant initially denied having knowledge about the murder of Ms. Shanno Bhandari. Thereafter, the appellant was brought to the office of special staff, North District for further interrogation when he made a disclosure statement Ex.PW21/A giving the details of the incident and disclosed that he had sold the gold chain of the deceased to a shopkeeper at Dariba Kalan for Rs.3200/- and also kept his washed clothes and shoes which had blood stains at his house.
14. PW24 Inspector B.S. Dahiya, the then SHO, PW23 SI Rishi Ram, PW19 SI Badlu Khan are other witnesses to the disclosure statements made by the appellant and the recovery of incriminating articles at his instance.
Crl. A.No.76/1997 Page 8 of 18
15. Statement of appellant under Section 313 Cr.P.C. was recorded wherein he denied the allegations and claimed that he has been falsely implicated in this case.
16. On perusal of the impugned judgment, it transpires that the learned Trial Court has returned the finding of guilt of the appellant on the basis of the following incriminating circumstances taken to be established by the prosecution:
(i) The motive for the commission of offence, i.e., robbery.
(ii) That the weapon of offence, i.e., „chhuri' Ex.P-5 recovered from the spot was purchased by the appellant from the shop of PW18 Harnam Singh in October, 1994 for Rs.25/-.
(iii) That the gold chain Ex.P-3 belonging to the deceased was pawned by the appellant with Shri Pradeep Kumar, shop owner of M/s. Heena Jewellers, Dariba, Chandni Chowk in consideration of Rs.3200/- for which he had already executed a pawn agreement (girvinama) Ex.PW17/A;
(iv) That the appellant had suffered a cut injury on the finger of his right hand for which he took treatment from PW1 Dr. Ravinder Amraik on 31.10.94.
(v) That the appellant made a disclosure statement Ex.PW21/A pursuant to which he led the police party to his tenanted room in House No.RZ-228, Patel Garden, Kakrola More, Uttam Nagar, Delhi and from there he got recovered his sport shoes Ex.P-1, pant Ex.P-2 and shirt Ex.P-3, which on serological examination gave positive test for human blood and the blood stains of the shirt and pant of the deceased also gave positive test for human blood of group „B‟ which was the blood group of the deceased.
(vi) The appellant on 15.11.94 made a further disclosure statement Ex.PW19/E pursuant to which he got recovered the lady‟s purse Ex.P-6 containing an envelope Ex.P-7, photographs Ex.P-8 and P-9, letter Ex.P-10 and the application forms Ex.P-11 and P-12 belonging to the deceased from his residence.
17. Before adverting to the submissions put forth on behalf of the parties, it would be useful to have a look on the law relating to the circumstantial evidence. It is well-settled that where the presence of eye witnesses could not be secured by the prosecution, the guilt of the Crl. A.No.76/1997 Page 9 of 18 accused can be proved by leading indirect evidence to prove the facts which give rise to an inference of guilt of the appellant. However, in such a case, the indirect or circumstantial evidence should not only be consistent with the guilt of the accused but should also be inconsistent with the innocence of the accused.
18. In the matter of Padala Veera Reddy Vs. State of A.P., 1989 Supp (2) SCC 706, the Hon‟ble Supreme Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
19. In Brijlala Pd. Sinha Vs. State of Bihar (1998) 4 Scale 25, the Hon‟ble Supreme Court reiterated the same approach and observed thus:
"9. ......In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decision of this court that the circumstances proved should lead to no other inference Crl. A.No.76/1997 Page 10 of 18 except that of the guilt of the accused, so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence it must satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused................"
20. Learned counsel for the appellant has submitted that in the instant case there is no eye witness to the occurrence. There is no evidence to the effect that the appellant was seen near the place of occurrence within a proximate time of occurrence nor there is any evidence that anyone saw the appellant going to the house of the deceased or coming out from the said house. Despite of that it is a mystery as to how the officials of the special staff North District, i.e. PW22, ASI Ram Kumar and PW21, Constable Mukesh Kumar came to the conclusion that the appellant Pradeep Gandhi was the person involved in the crime and apprehended him from his residence, i.e., House No.RZ-228, Patel Garden, Uttam Nagar, Delhi. Learned counsel for the appellant has further submitted that the case of the prosecution is based mainly upon the circumstantial evidence of motive, i.e., robbery - the recovery of the stolen gold chain belonging to the deceased at the instance of appellant from the shop of PW17 Pradeep Kumar with whom, as per the witness Pradeep Kumar, he had pawned the gold chain in consideration of Rs.3200/- and executed a "girvinama" Ex.PW17/A - recovery of the blood-stained pair of shoes, pant and shirt of the appellant at his instance from his residence RZ- 228, Patel Garden, on 14.11.94 as also the recovery of the lady‟s purse Crl. A.No.76/1997 Page 11 of 18 Ex.P-6 with its contents at the instance of the appellant from his residence on 15.11.94 and the evidence pertaining to the cut injury suffered by the appellant on the finger of his right hand for which took treatment from PW1 Dr. Ravinder Amraik. Learned counsel for the appellant submitted that neither of the aforesaid circumstances have been firmly established. Therefore, the conviction of the appellant on the basis of aforesaid circumstances is not sustainable. Thus, he has urged us to give benefit of doubt to the appellant.
21. On the other hand, learned counsel for the State has supported the impugned judgment and has submitted that the learned trial Judge has rightly concluded that the prosecution has been able to prove the above referred circumstances detailed in the impugned judgment, which circumstances taken as a whole, form a complete chain indicating towards the guilt of the appellant and thus he has canvassed for the dismissal of the appeal.
22. We have considered the rival contentions made on behalf of the parties and perused the evidence on record.
23. On perusal of record, it transpires that till the recording of FIR No.362/94, P.S. Civil Lines pertaining to murder of Ms. Shanno Bhandari, the police was not aware about the identity of the suspect/culprit. As per the testimony of PW22 ASI Ram Kumar and PW21 Constable Mukesh Kumar, the appellant was apprehended on 14.11.94 and on interrogation he made the disclosure. There is no Crl. A.No.76/1997 Page 12 of 18 evidence on record to show that from the date of registration of FIR till 14.11.94, the investigating agency was able to get any clue about the involvement of Pradeep Gandhi (appellant) in the murder of the deceased. Yet PW22 ASI Ram Kumar and PW21 Constable Mukesh Kumar in their respective evidence have stated that on the relevant day while they were involved in investigation of this case, they reached Kakrola More, Uttam Nagar and made inquiries about Pradeep Gandhi (appellant) and came to know that he had recently started residing at House No.RZ-228, Patel Garden, Near Uttam Nagar as a tenant. It is a mystery as to how ASI Ram Kumar and Constable Mukesh Kumar came to suspect the appellant as the person involved in the murder of Ms. Shanno Bhandari, though by that time, as per record there was no reason/basis to suspect the involvement of Pradeep Gandhi in the crime. This circumstance casts a grave doubt on the fairness of the investigation and gives rise to an inference that by that time the investigating agency had decided to book the appellant Pradeep Gandhi for the murder without any basis.
24. Coming to the motive. As per the case of prosecution, motive for the murder was robbery and allegedly the appellant, after committing murder of the deceased, took away her gold chain Ex.P-3 which he pawned with PW17 Pradeep Kumar for Rs.3200/- on 31.10.94 and executed a "girvinama" Ex.PW17/A. To link the aforesaid gold chain Ex.P-3 with the deceased, the prosecution examined PW4 Ram Niwas, who identified said chain as that belonging to his employer Smt. Crl. A.No.76/1997 Page 13 of 18 Shanno Bhandari and as per his version, he identified the gold chain in the Police Station 10/12 days after the death of Smt. Shanno Bhandari. Testimony of PW4, Ram Niwas regarding identification of the gold chain does not inspire confidence. Ex.PW17/B is the seizure memo of gold chain wherein it is recorded that in presence of the witnesses Pradeep Kumar PW17, SI Badlu Khan, PW19 and SI Rishi Ram, PW23 the gold chain Ex.P-3, produced by Pradeep Kumar, was kept in a matchbox and converted into a sealed packed with seal of BSD and taken into possession vide the seizure memo. If that is true, PW4 was not present at the time of recovery of gold chain. This rules out the possibility of PW4 Ram Niwas having identified the gold chain Ex.P-3 at the Police Station because there is no evidence on record to show that after sealing of the gold chain, the packet was ever opened before it was produced in the court at the time of examination of the witnesses. Further PW17, Pradeep Kumar, from whose shop the gold chain Ex.P-3 was allegedly recovered, has stated that the appellant executed a "girvinama" Ex.PW17/A in token of pawning the gold chain with him. We have perused the original "girvinama" and tried to compare the purported signatures of the appellant on the "girvinama" with the signatures of the appellant on his statement under Section 313 Cr.P.C. and, in our considered view, those signatures do not tally. Therefore, it is also doubtful that the appellant executed any "girvinama" in favour of Pradeep Kumar or pawned the gold chain Ex.P-3 with him. Crl. A.No.76/1997 Page 14 of 18
25. Further PW19, SI Badlu Khan, who conducted initial investigation of this case, has stated that after the inquest proceedings dead body of the deceased was sent to dead house, Subzi Mandi for post mortem. Constable Dalbir on return from the dead house brought one gold ring, a pair of gold tops and a pendent which were removed from the person of the deceased Shanno Bhandari at Subzi Mandi mortuary and handed over to him, which were seized vide memo Ex.PW10/A. Presence of gold ornaments on person of the deceased, particularly the gold tops and the gold pendent which could easily be removed from the body of the deceased, negatives the theory that the motive of murder was robbery. If robbery was the motive of the appellant, he obviously would have taken away the other gold ornaments instead making good with the gold chain Ex.P-3 only. In view of the above, we are of the opinion that the prosecution has not been able to establish the motive or the recovery of gold chain Ex.P-3 at the instance of the appellant beyond reasonable doubt.
26. Another circumstance taken against the appellant by the learned trial Judge is the testimony of PW1 Dr. Ravinder Amraik, who deposed on the basis of his patient register, which was not properly proved on record, that the appellant was treated by him for a cut injury on the little finger of his right hand and he did dressing of the said injury and charged Rs.8/-. Above evidence does not help the prosecution, firstly because PW1 was not sure about the identity of the appellant as he deposed that the accused appeared to be the same person, secondly, Crl. A.No.76/1997 Page 15 of 18 the witness has not given date or month of the treatment, thirdly according to him he treated the appellant for a cut injury on the little finger of his right hand, whereas PW8 Dr. Vandana Bagga, who medically examined the appellant after his arrest has deposed that on local examination she found a healed scar mark on the right index finger of the appellant. Dr. Vandana Bagga is silent about having observed any injury mark on the little finger of the appellant. Therefore, one cannot say for sure that the person purportedly treated by Dr. Ravinder Amraik was the appellant. In view of the aforesaid circumstances, we are of the view that the learned Trial Court has erred in concluding that PW1 Dr. Ravinder Amraik and PW8 Dr. Vandana Bagga have established that the appellant suffered a cut injury on his finger, for which he was treated by PW1, Dr. Ravinder Amraik.
27. The next circumstance taken against the appellant by the learned Trial Court is that the appellant led the police party to the shop of PW18 Harnam Singh and pointed it as the shop from where he purchased the chhuri Ex.P-5 for Rs.25/-. Though PW18 Harnam Singh has stated to that effect in his evidence, yet we find it difficult to rely upon his testimony because the pointing out memo Ex.PW19/F does not bear his signatures. Further, perusal of the seizure memo Ex.PW19/A reveals that the chhuri Ex.P-5, which was recovered at the spot of occurrence was seized on the same day after converting it into a sealed packet. There is no evidence on record that aforesaid chhuri Crl. A.No.76/1997 Page 16 of 18 was shown to PW18 Harnam Singh for identification during investigation by the police or any identification proceedings in this regard were conducted. From the above, it is apparent that after October 1994, if at all PW18 Harnam Singh sold a chhuri to the appellant, he saw the chhuri Ex.P-5 for the first time on the day of his examination as a witness on 05.08.96. It is highly improbable that he could have definitely identified the chhuri Ex.P-5 after a lapse of about two years. Therefore, we do not consider it safe to rely upon the testimony of PW18 Harnam Singh regarding the identity of the chhuri or even his having sold the chhuri Ex.P-5 to the appellant.
28. The other two circumstances relied upon by the prosecution are the recovery of blood-stained shoes, pant and shirt Exhibits P-1 to P-3 at the instance of the appellant on 14.11.94 from his residential room and also the recovery of lady‟s purse Ex.P-6 containing the envelope Ex.P-7, photographs Exhibits P-8 and P-9, letter Ex. P-10 and application forms Exhibits P-11 and P-12 belonging to the deceased from the residence of the appellant at his instance on 15.11.94. The only independent witness to aforesaid two recoveries as per the case of prosecution is PW7 Amar Singh, who has not supported the case of the prosecution. According to him, no recovery was effected in his presence and he was made to sign some papers by the police on the pretext that they had recovered blood-stained pair of shoes, pant and a shirt from the residence of the appellant. This witness has also not supported the case of prosecution regarding the recovery of lady‟s Crl. A.No.76/1997 Page 17 of 18 purse Ex.P-6 and the articles contained therein. Since the independent witness has failed to support the recovery of incriminating articles at the instance of the appellant, we do not consider it safe to rely upon the testimony of police witnesses regarding recovery of incriminating articles, particularly when it remains a mystery as to on what basis the appellant was apprehended in the first instance by the officials of special staff (PW21 and PW22) on 14.11.94.
29. The result of above discussion is that the prosecution has failed to firmly establish the incriminating circumstances to form a complete chain pointing towards the hypothesis of guilt of the appellant. Thus, we find it difficult to sustain the conviction of the appellant under Section 302 IPC. We accordingly set aside the impugned judgment and acquit the appellant, giving him benefit of doubt.
30. The appellant is on bail. His bail bond and surety bond are discharged.
AJIT BHARIHOKE, J.
JANUARY 18, 2010 A.K. SIKRI, J.
pst
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