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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 123 of 1985.

From the Judgment and Order dated 12.11.84 of the Delhi High Court in State Criminal Appeal No. 71 of 1978. R.K. Garg and Rajendra Prasad Singh for the Appellant.

N.N. Goswamy and Ashok Bhan for the Respondent. The Judgment of the Court was delivered by DR. ANAND, J. This appeal by special leave, is directed against the judgment of the High Court of Delhi dated 12th of November 1984, setting aside an order of the Additional Sessions Judge New Delhi, acquitting the appellant of an offence under Section 302/203 IPC.

The postmortem on the dead body of Usha Jain was conducted on 27.7.1976 at 9.00 a.m. by Dr. Bharat Singh PW-4 and according to the postmortem report EX.PL, all the injuries found on the person of the deceased were ante-mortem and the same were possible by throttling the deceased and that the death of Usha Jain was caused by asphyxia resulting from throttling. The deceased was carrying 7th month pregnancy at the time of her death.

After the disclosure statement was made by the appellant leading to the recovery of the ornaments and after noticing injuries on his person, the case which was originally registered under Section 460 IPC was converted, into one under Section 302/203 IPC. The SHO during the course of investigation also took sample hair of the appellant and sent the same alongwith the hair recovered from the cot of the deceased to the Central Forensic Science Laboratory. The nail clippings of the deceased were also sent for analysis to CFSL. Site plan, EX.PO, was also prepared during the investigation. After completion of the investigation, challan was filed against the appellant and he was sent up for trial for offences under Section 302/203 IPC in the court of Additional Sessions Judge, New Delhi.

The appellant was, therefore, acquitted of the offences under Section 302/203 IPC.

On an appeal by the State, a division bench of the High Court reversed the order of acquittal of the appellant. The High Court held that the circumstances formed a chain and sequences so complete by themselves that one was left in no manner of doubt that the appellant and the appellant alone had committed the crime. The appeal was accepted and the order of acquittal was set aside. The appellant was sentenced to undergo rigorous imprisonment for life under Section 302 IPC and also to undergo rigorous imprisonment for a period of one year under Section 203 IPC. Both the sentences were directed to run concurrently. Appearing for the appellant, Mr. R.K. Garg, the learned senior counsel submitted that the approach of the High Court was totally erroneous and that a well considered and well reasoned judgment of the Trial Court was upset by the High Court by drawing inferences which were not available from the record and by ignoring material discrepancies and infirmities in the prosecution evidence which not only did not establish various circumstances but which also showed that the chain of circumstantial evidence was wholly incomplete. Learned counsel for the appellant submitted that the appellant had been roped in on the basis of misguided suspicion and that the circumstances relied upon by the prosecution were not of any conclusive nature and they did not exclude the hypothesis, other than that of the guilt of the appellant. It was emphasised that the inves- tigating officer had created false clues and suppressed material which went against the prosecuting version and supported the defence version. He argued that the High Court should have drawn adverse inference against the prosecution for not producing the first informant and withholding the evidence of the father of the deceased. Mr. N.N. Goswami, learned senior counsel assisted by Mr. Ashok Bhan, advocate, on the other hand submitted that some of the circumstances like the pointing out of the appellant by the dogs of the Dog Squad, after picking up the scent from the place of occurence; the disclosure statement and the recovery of ornaments as a consequence thereof at the instance of appellant and the presence of injuries on the person of appellant, were of such a conclusive and clinching nature that they left no doubt that the appellant had committed the crime. It was submitted that the appellant had made attempt to mislead the investigating officer by giving a false version with a view to screen himself. According to the learned counsel the established circumstance could only lead to the hypothesis consistent with the guilt of the appellant and not with his innocence. We shall now consider various circumstances with a view to determine whether the circumstances alleged against the appellant have been established and the chain of evidence is so complete as to lead to no other hypothesis except the one consistent with the guilt of the accused.

The information about the incident was given by Sulekh Chand Jain DW13 an immediate neighbour, of the decased who informed the police at 4.55 AM on the request of the appellant about the occurrence. Sulekh Chand Jain was not examined by the prosecution and was instead examined by the defence and has appeared as DW13. He deposed that he had conveyed the information, as given to him by the appellant and other inmates of that house, regarding the murder of the deceased to Moti Ram PW11 at police station Hauz Khas on telephone. The record of the information conveyed by him at the police station was, however, cryptic and no explanation has been furnished as to why the recorded report was so cryptic. In answer to a question in the cross-examination, the witness naturally expressed his ignorance as to why the report had been recorded in the manner in which it was recorded. That was natural. This explanation was required to be furnished by the police witnesses rather than DW13. Though he was subjected to incisive cross-examination, nothing emerged from the evidence of DW13 which may show that he had not conveyed the information of murder having been committed to the police. Under these circumstances, the argument of Mr. Garg that the report was designedly left vague to enable the investigating agency to fill in the blanks latter cannot be dismissed as wholly unplausible particularly when we have noticed the conduct of the Investigating Officer during the investigation. The possiblility that the entire case was built up after the dogs of the dog squad pointed towards the appellant cannot be ruled out. Since, the appellant had slept in the verandah near the cot where the dead body of his wife was found; had locked the collapsable door with the recovered lock before going to sleep and had himself been close to the dead body before the police came, the picking up of the smell by the dogs and pointing towards the accused could not be said to be a circumstance which could exclude the possibility of guilt of any person other than that of the appellant or be compatible only with hypothesis of guilt of the appellant. The pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime. The explanation of the appellant regarding the injuries on his person as having been caused by the police is also quite plausible because according to the father of the deceased, the sister of the deceased, the tenants of the house and other neighbours who had reached the spot, the appellant was wearing only a vest and the pyjama and no shirt and there were no marks of injuries on his body before he was taken to the police. station. The prosecution case regarding the presence of injuries on the person of the deceased also, therefore, is quite doubtful. On an independent appraisal of the evidence on the record, we have therefore unhesitatingly come to the conclusion that the learned Sessions Judge was perfectly justified in acquitting the appellant of all the charges and the reasoning given and the findings recorded by her are sound, cogent and reasonable. The High Court was not justified to set aside those findings on surmises and conjectures. The finding of guilt recorded against the appellant by the High Court is not sustainable in law and we, agree with the learned Sessions Judge that the prosecution has not established the case against the appellant beyond a reasonable doubt. We, accordingly, set aside the judgment of the High Court convicting the appellant for the offence under Section 302/203 IPC. The appeal is allowed and the appellant acquitted of both the charges. The appellant is on bail, his bail bonds shall stand discharged. N.V.K. Appeal allowed.