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Case Number

Crl. Appeal No. 22 of 1990

Advocates

H.P.Sharma
Amicus Curiae
R.M.JOHN

Judges

P.K Bahri
S.D Pandit, JJ.

Acts

Section 394 read with Section 34 and Section 302 of the Indian Penal Code
provisions of Section 100(4) of the Code of Criminal Procedure
Section 394 read with Section 34 of the Indian Penal Code
Section 100(4) of the Code of Criminal Procedure,
Section 27 of the Indian Evidence Act.
Section 302 of the Indian Penal Code

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Smart Summary

Comprehensive Summary of the Opinion (Jaivir Singh — Appeal)

Factual and Procedural Background

The Additional Sessions Judge, New Delhi, by judgment dated 23 December 1989 convicted Sukhbir Singh under Section 394 read with Section 34 of the Indian Penal Code and convicted the appellant, Jaivir Singh, under Section 394 read with Section 34 and Section 302 IPC. By order dated 8 January 1990 Sukhbir Singh was sentenced to three years rigorous imprisonment and a fine of Rs. 500 (with default terms) and Jaivir Singh was sentenced to life imprisonment for the Section 302 offence and to three years rigorous imprisonment and a fine of Rs. 1,000 (with default terms) for the robbery offence, the substantive sentences to run concurrently.

Only Jaivir Singh appealed the conviction and sentence; Sukhbir Singh did not file an appeal. The prosecution case as set out in the opinion: on 10 December 1987 Vinay Arora (PW9) returned to his home and found his mother, Smt. Leelawati, dead; Sukhbir Singh was found tied and gagged. The prosecution alleged that Jaivir Singh and Sukhbir Singh were involved in the murder and robbery. On 12 December 1987 both accused were arrested. The police allegedly recovered from a room rented (allegedly by Jaivir Singh) cash (Rs. 12,551) and various jewellery, an attache-case, iron box and a basket (Exs. P1–P33), and some blood-stained clothes; a knife was also alleged to have been recovered from bushes near Nehru Place. CFSL examination reportedly found human blood of the same group on one shirt as that of the deceased. Fingerprint experts opined that fingerprints from the place of occurrence were those of Sukhbir Singh. The trial court convicted on circumstantial evidence; the appellate court (this opinion) reviewed those findings and allowed the appeal.

Legal Issues Presented

Whether the prosecution established the implication of the appellant (Jaivir Singh) beyond reasonable doubt on the basis of the evidence and the chain of circumstances relied upon by the trial court.
Whether the recoveries (cash, jewellery, attache-case, iron box, basket and blood-stained clothes) were lawfully shown to have been effected at the instance of the appellant and thus admissible and reliable.
Whether the identification evidence (notably the taxi-driver PW5's testimony) was sufficiently reliable in the absence of a test identification parade or other corroboration.
Whether disclosure/confessional statements relied upon by the trial court were admissible under the law (including Section 27 of the Indian Evidence Act) and whether portions of such statements were subsequently inserted or unreliable.
Whether the recovery of the alleged weapon (knife) from a public place and the circumstances of its recovery were sufficient to link it to the appellant and to the offence.

Arguments of the Parties

Appellant's Arguments

The appellant's counsel contended that the appellant's implication was not established beyond doubt and that the trial court had relied on circumstances not supported by legal evidence.
It was argued that the disclosure statement attributed to Jaivir Singh appears to have the lines about the knife inserted after the main disclosure, with abnormal spacing, suggesting post-facto insertion and unreliability.
The room from which recoveries were allegedly made was said to be locked and opened with a key supplied by the appellant; however, the police did not seize or produce the lock or the key, and the personal search memo (Ex.PW14.B) does not show any key recovered from the appellant.
The appellant remained in police custody after arrest; the Investigating Officer's account that the appellant produced the key is inconsistent with the personal search record showing no key recovered at arrest, making it implausible that the appellant supplied the key at the house search.
The Investigating Officer did not comply with Section 100(4) CrPC by joining two respectable local witnesses before conducting the house search; thus statutory safeguards were not followed.

State's Arguments

The State's counsel argued that large recoveries of valuables belonging to the complainant were effected at the instance of the appellant and that minor lapses by the Investigating Officer should not destroy the prosecution's core case.
The landlord (an independent witness) who leased the room allegedly corroborated that the appellant had hired the room to conceal stolen property and was present at recoveries, and the State urged that these recoveries should suffice to prove the appellant's guilt.
The State also urged that the knife was recovered at the appellant's instance and should be believed as linking the appellant to the murder.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Maharashtra v. Sukhdeo Singh, JT 1992 (4) SC 73	Principles on identification: reliability of in-court identification without a prompt test identification parade (TIP) and caution when witnesses had only a fleeting glimpse; test identification parade provides assurance if held promptly and properly.	The court cited this authority to reject reliance on the taxi-driver PW5's identification evidence in the absence of a proper TIP and given his shifting testimony and the casual nature of his contact with the appellant; the court held it risky to place implicit reliance on such identification.
Gopal Singh v. State of Madhya Pradesh, AIR 1972 SC 1557	Authorities addressing recoveries where a key or other article that would connect accused to a room was in the police's control but not seized at arrest — such failures make subsequent recoveries doubtful.	The court relied on this decision by analogy to find that because the police did not seize or produce the key (or the lock) and had opportunities to do so, the recoveries from the rented room could not reliably be held to have been effected at the appellant's instance.
Kora Ghasi v. State Of Orissa, 1983 SCC (Cri) 387	Principle that recoveries from an open public place (visible and not concealed) are of low evidentiary value and cannot be given substantial importance.	The court applied this principle to the knife allegedly recovered from bushes in a public place (Nehru Place), holding that because it was not shown to have been concealed and sufficient blood was not detected on the knife, the recovery could not be treated as establishing the link to the murder.

Court's Reasoning and Analysis

The appellate court examined the nine circumstances the trial judge relied upon (as listed in para 36 of the trial judgment) and analyzed each circumstance against the record evidence, admissibility rules and relevant precedents. The court's analysis proceeded as follows:

Circumstance (i): The trial court treated as proved that both accused hailed from the same village, came to Delhi together, and that Sukhbir introduced Jaivir to the complainant's wealth. The appellate court found no testimony from PW6 (Satish Gupta) or PW9 (Vinay Arora) establishing these facts. The trial court had seemingly relied on confessional statements recorded by police; the appellate court reiterated the legal position that confessional statements made in police custody are inadmissible unless they lead to discovery of a fact admissible under Section 27 Indian Evidence Act, and the trial court failed to confine itself to legally admissible portions.
Circumstance (ii): The trial court found that Jaivir obtained money from his employer to pay rent for the room. The appellate court identified inconsistent testimony: PW3 Ram Chander said the appellant came on 8 December and paid Rs.150 advance for rent of Rs.250, whereas PW6 Satish Gupta said he gave Rs.100 to the appellant on 9 December as an advance. The appellate court held the chronology did not support the trial court's inference that the rent was paid from the employer's advance.
Circumstance (iii): The trial court inferred that Sukhbir and Jaivir knew Vinay Arora's movement and planned the crime; the appellate court found these to be inferences or surmises not established by prosecution witnesses and thus not proper as proven circumstances.
Circumstance (iv): The trial judge held that interrogation of Sukhbir led to Jaivir's arrest. The appellate court found this inconsistent with the CFSL report and other material showing both accused had been presented for fingerprinting on 11 December 1987, before the alleged disclosure that led to arrest; hence the alleged disclosure by Sukhbir could not have led to the arrest of Jaivir. The court treated this circumstance as based on inadmissible evidence and ignored it.
Circumstance (v): The taxi-driver (PW5) testified that the appellant left the complainant's house around 4 a.m. with the basket and attache-case and hired a taxi to the railway station. The appellate court noted serious doubts: PW5's testimony was taken twice with inconsistent statements, he had a casual fleeting contact with the passenger, no test identification parade was conducted though the Investigating Officer showed the appellant to him on 12 December, and PW5 could not identify special features of the articles after 8–9 months. The court applied the principles from State of Maharashtra v. Sukhdeo Singh and concluded PW5's testimony could not be relied upon to establish this circumstance beyond reasonable doubt.
Circumstances (vi), (vii) and (ix): These were the recoveries from the rented room and the blood-stained clothes (and CFSL linking of blood group). The appellate court acknowledged that if proved beyond reasonable doubt these would be decisive; however, the court found significant investigative lapses:
- The Investigating Officer's personal search memo (Ex.PW14.B) did not record any key recovered from the appellant at arrest, yet Ram Chander deposed the appellant handed over a key at the house and the police opened the lock with that key. The Investigating Officer's explanation (that he allowed the appellant to keep the key and therefore did not seize it) was not recorded in the diary or memo.
- The police failed to seize or produce the key or the lock in evidence; this omission resembled the facts in Gopal Singh v. State of Madhya Pradesh, and therefore rendered the recoveries doubtful.
- There was also discrepancy about which specific room had been let to the appellant; other tenants were not examined; the Investigating Officer did not comply with Section 100(4) CrPC by joining two respectable local witnesses to effect the house search.
- Because of these infirmities and non-compliance with statutory safeguards, the court concluded the recoveries could not reliably be attributable to the appellant.
Circumstance (viii): The knife allegedly recovered from bushes at Nehru Place was challenged. The court examined the original disclosure statement and observed that the lines about the knife appeared to have been inserted after the disclosure was recorded (different spacing). The court also noted the recovery occurred in a public place and it was not shown the knife was concealed; absent concealment, such recovery has little evidentiary value (Kora Ghasi v. State of Orissa). Additionally, CFSL did not find sufficient blood on the knife to match with the deceased. The court thus held this circumstance was not established beyond reasonable doubt.
Synthesis and burden on circumstantial evidence: The court emphasized that in circumstantial cases each circumstance must be established by cogent legal evidence and the chain of circumstances must be complete and point to one irresistible inference of guilt. Any circumstance that suggests the possibility of innocence breaks the chain. Having found multiple circumstances unproven or doubtful, the court concluded the chain did not establish guilt beyond reasonable doubt.

Holding and Implications

Core Ruling: The appellate court allowed the appeal and set aside the conviction and sentences of the appellant, Jaivir Singh. The court directed that the appellant be set at liberty forthwith if not required in any other case.

Implications:

Direct effect on the parties: The appellant's conviction and sentences were quashed and he was ordered to be released if not detained in connection with any other matter.
On prosecution evidence and procedure: The judgment underscores the necessity of strict compliance with procedural safeguards (e.g., seizure and production of keys/locks, joining of witnesses under Section 100(4) CrPC, and proper handling of identification evidence) and the limited value of confessions in police custody except insofar as they lead to admissible discoveries under Section 27 Evidence Act. The court held that investigative lapses can render otherwise important recoveries doubtful.
Precedential effect: The opinion applied existing precedent (as cited) to the facts; the decision did not announce a new legal principle but applied established authorities to find the evidence insufficient to sustain conviction.

Appeal allowed. Conviction and sentence of the appellant quashed; appellant directed to be set at liberty if not required in any other case.

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Jaivir Singh v. State (Delhi Admn.) .

Mr. P.K Bahri, J.— The police file has been opened and seen by us during the course of the arguments.

2. An Additional Sessions Judge, New Delhi, vide his judgment dated December 23, 1989, has convicted the accused Sukhbir Singh for the offence punishable under Section 394 read with Section 34 of the Indian Penal Code and had convicted the appellant-Jaivir Singh for the offence punishable under Section 394 read with Section 34 and Section 302 of the Indian Penal Code and vide his subsequent order dated January 8, 1990, has sentenced Sukhbir Singh to three years rigorous imprisonment and a fine of Rs. 500/- and in default to undergo one month rigorous imprisonment more and has sentenced the appellant-Jaivir Singh to undergo life imprisonment for offence punishable under Section 302 of the Indian Penal Code and sentenced him to three years rigorous imprisonment and a fine of Rs. 1,000/- and in default to undergo three months rigorous imprisonment more for the offence punishable under Section 394 read with Section 34 of the Indian Penal Code with the direction that the substantive sentences shall run concurrently.

3. Sukhbir Singh has not filed any appeal against his conviction and sentence and it is only Jaivir Singh who has challenged his convictions and sentences by filing the present apeal.

4. The case of the prosecution is that PW9 Vinay Arora, who was having a shop in Chandni Chowk, was residing in house No. 38, Hemkunt Colony, Greater Kailash-I, New Delhi, at the relevant time and accused Sukhbir Singh was working as an employee in his shop since some time prior to this occurrence and used to sleep at his house after performing his duties at the shop. The aged mother of Vinay Arora was living with him in the said place. It is the case of the prosecution that on December 8, 1987, Vinay Arora had left for Kanpur by train for some business and was to return after two days. He had come back to his house from Kanpur on December 10, 1987, at about 9 A.M and had found his house having been ransacked and discovered the dead body of his mother lying on the bed while Sukhbir Singh was found tied to a pillar in his drawing room and his mouth having been gagged. He removed the gag from the mouth of Sukhbir Singh and Sukhbir Singh gave out that some persons had come during the intervening night of 9th and 10th of December 1987 and had gained entrance in the house on mentioning that they had come from Roamy, a friend of Vinay Arora. Sukhbir Singh tried to show that some unknown persons had committed the murder of Vinay Arora's mother, namely, Smt. Leelawati and had also robbed the house of various valuables including some currency. The police were informed and on the statement of Vinay Arora Ex. PW9.A, a case was registered at the Police Station.

5. It is the case of the prosecution that on December 12, 1987, Sukhbir Singh and Jaivir Singh were arrested and on the disclosure statement by Jaivir Singh, from a room allegedly hired by Jaivir Singh in house No. 611/11, Lane No. 9, Village Maujpur, Ghonda, recovery of cash of Rs. 12,551/- and certain golden jewellery items, silver articles, an attache-case and an iron box and a basket was made. All these recoveries were proved through the statement of Vinay Arora which are Exs.P1 to P33. Some of the blood stained clothes were also recovered from that place. It is also the case of the prosecution that the appellant had also made a disclosure statement which led to the recovery of the knife from some bushes near the Nehru Market. The case property was sent to the Central Forensic Science Laboratory. One of the shirts recovered from the said room was found to have human blood of the same group as the blood of the deceased. Both the accused were then charge-sheeted for the aforesaid offences. The appellant and Sukhbir Singh had pleaded not guilty to the charges but the Additional Sessions Judge had believed the circumstantial evidence appearing against the appellant as well as Sukhbir Singh and had passed the impugned judgment and the order. We may mention that certain finger prints were lifted from the place of occurrence from various articles including jewellery box and almirah which was ransacked and the said finger prints were opined by the finger print expert to be those of Sukhbir Singh. It has also come out in evidence that sample finger prints of Sukhbir Singh and also of Jaivir Singh were taken by the experts when they were brought before the said experts by the police on December 11, 1987.

6. The learned Counsel for the appellant has vehemently contended that implication of the appellant on the basis of the evidence led has not been established beyond doubt. She has referred to disclosure statement allegedly made by Jaivir Singh and has pointed out that the original disclosure statement on the face of it shows that the disclosure pertaining to the alleged knife was incorporated after completing the full disclosure statement and the normal gaps which appear in between different lines were not there in the last three lines which pertain to the disclosure of the knife which appear to have been recorded after completing the disclosure statement. She has also urged that the room from which the recoveries had been affected was alleged to have a lock and a key and it is the case of the prosecution that it is the appellant who supplied the key with which the lock of the room was opened, but surprisingly neither the lock nor the key have been taken into possession by the police and produced in this case. She has urged that according to the Investigating Officer, who arrested the appellant, he had carried out personal search of the appellant and had prepared the personal search memo Ex.PW14.B which reveals that no such key has been shown to be recovered from the appellant. She has urged that after arrest the appellant's personal search had been taken and no key has been shown to be found on his person and the appellant remained in police custody all along. It is not understood how the appellant could have produced any key which opened the lock of that rented room from where the recoveries were made. She has urged that the learned Additional Sessions Judge has referred to various circumstances which according to the Additional Sessions Judge have been well established and beyond shadow of doubt but most of the circumstances relied upon by the Additional Sessions Judge are not based on any legal evidence. She has also urged that before taking the house search for effecting the recoveries the Investigating Officer had not taken any steps to call any two respectable witnesses from the locality so that the provisions of Section 100(4) of the Code of Criminal Procedure could be complied with.

7. On the other hand, the learned Counsel for the State has argued that huge recoveries had been effected of the valuables robbed from the house in question at the instance of the appellant and minor discrepancies appearing in the case or lapses made by the Investigating Officer should not destroy the main substratum of the prosecution case. He has argued that the landlord of the room which was hired by the appellant has not only supported the prosecution case that on December 8, 1987, the appellant had hired that room for a specific purpose of concealing the robbed property in that room and recoveries had been effected in presence of the said landlord who is an independent witness and thus, the said recoveries alone should be sufficient to bring home the offence to the appellant. He has also urged that the knife had been also recovered at the instance of the appellant and the evidence with regard to the same should be believed.

8. The learned Additional Sessions Judge has relied on nine circumstances mentioned in para 36 of the judgment and we will deal with all the circumstances in order to see whether the circumstances relied upon by the Additional Sessions Judge have been established from cogent legal evidence available on the record or not.

CIRCUMSTANCE No. (i)

“That accused-Jaivir Singh and accused Sukhbir Singh hail from the same village and had come to Delhi in search of job almost together. Both the accused used to work at the shops in Chandni Chowk, which were almost opposite to each other. It was rather at the instance of accused-Sukhbir Singh that accused-Jaivir Singh was employed by Satish Gupta, the owner of the shop at Chandni Chowk and as such Sukhbir Singh had revealed to Jaivir Singh about the wealth of the complainant and also the fact that whenever the complainant went out of Delhi in connection with his business, his old mother remains all alone in the house. (This has been sufficiently proved through the testimony of PW-Vinay Arora and Satish Gupta).”

9. We have gone through the statement of Satish Gupta PW6 and Vinay Arora PW9 and we find that nowhere it is deposed by them that the appellant and Sukhbir Singh had come from the same village in search of job almost together and it was at the instance of Sukhbir Singh that appellant was employed by PW6 Satish Gupta. There is not even a sentence appearing in their statements that Sukhbir Singh had revealed to the appellant about the wealth available at the complainant's house and that complainant whenever went out of Delhi in connection with his business his mother alone remained in the house. It appears that the Additional Sessions Judge had perhaps looked into the detailed confessional statements of Sukhbir Singh and Jaivir Singh-appellant recorded by the police after their arrest for referring to these facts. The Additional Sessions Judge has forgotten the law that confessional statements made by the accused in custody of the police are not admissible unless and until such confessional statement led to the disclosure of some fact and that portion of the statement alone which leads to discovery of fact is admissible in evidence under Section 27 of the Indian Evidence Act. It would have been proper for the Additional Sessions Judge to have scrutinized the evidence in order to see that only legal admissible evidence is relied upon in order to decide whether a particular fact stands proved or not. In this first circumstance the Additional Sessions Judge has on the one hand referred to the facts which are not proved by any legal evidence then had referred to the inferences drawn treating them as facts proved on the record. When a case is based on circumstantial evidence the duty of the Court is to see that each and every circumstance is established as a fact on the basis of cogent and legal evidence and thereafter the Court has to see whether those circumstances which are so established lead to any inference or not pointing out the guilt of the accused. It has also to be borne in mind that the chain of circumstances should be so complete as to lead to one and the only inference that the accused is guilty of the offence. Any circumstance which leads to the inference that perhaps the accused is not involved would lead to breaking of the chain of circumstances.

10. Second circumstance relied upon by the Additional Sessions Judge is to the following effect:

CIRCUMSTANCE No. (ii)

“That two days before the occurrence accused Jaivir Singh demanded some money from his employer Satish Gupta on the pretext that his sister had come from the village and he had to go to meet her sister and Satish Gupta gave him Rs. 100/- which was used by him as advance paid to the landlord at Maujpur for renting out the room. (This has been amply proved by the testimony of PW3-Ram Chander and Satish Gupta-PW)

11. Again we find that the Additional Sessions) Judge has not scrutinized the evidence for recording these findings that that circumstance stands proved on the record from the testimony of Ram Chander and Satish Gupta. As narrated above, this is evident from the testimony of Ram Chander if he is to be believed that the appellant had come to hire the room in his house on December 8, 1987 and had given an advance of Rs. 150/- and the rent settled was Rs. 250/-. Satish Gupta, on the other hand; has deposed that it was on December 9, 1987, that he had given the advance of Rs. 100/- to the appellant as the appellant had mentioned that he was to meet his sister. So, obviously the advance payment received by the appellant on December 9, 1987, could not have been utilised by him for giving the advance rent to the landlod PW3-Ram Chander So, this circumstance which has been relied upon by the Additional Sessions Judge is hot a circumstance which could pointy to the guilt of the appellant that he had hired the room out of the money advanced to him by PW-Satish Gupta.

12. The third circumstance relied upon by the Additional Sessions Judge is to the following effect

CIRCUMSTANCE No. (iii)

“That accused-Sukhbir Singh knew as to when Vinay Arora was to return and Jaivir Singh came to know as he was working at the shop opposite to the shop of Vinay Arora as well as from accused-Sukhbir Singh that Vinay Arora had left for Kanpur and would be back after two days and this was the most opportune moment for them to execute the plan.”

13. We find that the facts mentioned in this circumstance are not alluded to by any of the witnesses of the prosecution. These are perhaps the surmises which the Addtional Sessions Judge has drawn from some other facts improperly brought on the record. So, he could not have treated this circumstance as proved on the record by any cogent and convincing evidence led on the record. It was incumbent upon the Trial Court to have first referred to the facts which have been established on the record on the basis of the legal evidence led before him. The inferences which are to be drawn from the facts would have come later on the inferences could not be treated as the circumstances proved on the record.

14. The next circumstance relied upon by the Additional Sessions Judge is to the following effect:

CIRCUMSTANCE No. (iv)

“That the persistent interrogation of accused-Sukhbir Singh led to the arrest of accused-Jaivir Singh on December 12, 1987 and Sukhbir Singh took the police party to the shop at Chandni Chowk where accused-Jaivir Singh was present.”

15. It appears that the Additional Sessions Judge was much persuaded from the disclosure statement which was given by Sukhbir Singh which was not at all admissible in evidence as the disclosure statement has not led to any discovery of any fact which was not known to the Investigating Officer earlier. In this case it is evident from the perusal of the CFSL report Ex.PW7.A that both, appellant as well as accused Sukhbir Singh had been brought by the police for taking their finger print impressions on December 11, 1987. So, it is evident that appellant as a suspect in this case was known to the Investigating Officer even on December 11, 1987. So, it cannot be said that disclosure statement of Sukhbir Singh had led to the arrest of appellant-Jaivir Singh. So, this circumstance being relied upon by the Additional Sessions Judge, is not based on any admissible legal evidence and thus, has to be ignored.

16. The Additional Sessions Judge has then-relied upon the following circumstance.

CIRCUMSTANCE No. (v)

“That the accused left the house of the complainant in the early hours of the morning at about 4 A.M on December 10, 1987, with a basket and attache-case and hired the taxi and he was dropped at the Railway Station (Proved through the testimony of. PW5-Nasib Chand, taxi driver, whose taxi was hired by this accused).”

17. So it is the statement of Nasib Chand PW5, who is a taxi driver, which has been relied upon for holding that this particular circumstance stands established PW5 was examined twice, once on August 10, 1988. At that time he stated that at about 4.20 A.M on December 10, 1987, the appellant had come to his taxi stand and hired the taxi for going to Railway Station and at that time he was carrying Ex.P1 basket containing some clothes and one attache case Ex.P2 and he had left him at the Railway Station on the request of the defence later on the Additional Sessions Judge had permitted this witness to be again examined as PW20 on October 19, 1989 His exanimation-in-chief was again carried on by the prosecution which was not required to be done because he was permitted to be recalled for further cross-examination, yet the Court permitted the prosecutor to examine this witness again and in examination-in-chief he made a confusion worst confounded by deposing that it was Sukhbir Singh who hired the taxi on that morning. In cross-examination he turned turtle and at first he stated that he was not in a position to identify that-boy who had hired the taxi on that day but at one point of time he deposed that he had earlier stated in Court rightly that it was the appellant who hired the taxi. This witness has been subjected to unnecessary trouble of coming to the Court again when his complete statement had been recorded on August 10, 1988. There was no reason for the Additional Sessions Judge to have permitted his recalling and being examined as if he was a new witness as P.W20 Be that as it may, the testimony of this witness cannot be given any importance in view of the fact that this witness must have seen the appellant only in a casual manner when he took him as a passenger from his taxi stand to the Railway Station. It is evident that Investigating Officer must have come to know about this fact during investigation. So, it should have been clear to the Investigating Officer that the test identification parade of the appellant would be necessary for testing the memory of PW5 Nasib Chand as to whether he would be able to identify a passenger whom he had carried in his taxi on a particular morning. But the Investigating Officer appears to be not alive to this fact and he had according to the police record examined this witness on December 12, 1987 and had shown the appellant to him.

18. In the State of Maharashtra v. Sukhdeo Singh, JT 1992 (4) SC 73, the Apex Court has held that the direct evidence regarding identity of culprits comprises of (i) identification for the first time after a lapse of considerable time in Court or (ii) identification at a test identification parade. In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. It was observed that the test identification parade if held promptly and after taking the necessary precautions to ensure its credibiity would lend the required assurance which the Court ordinarily seeks to act on it and in the absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance.

19. In the present case PW5, however, had deposed in Court that he was examined by the Investigating Officer after 15-20 days. It appears that it was not brought to his notice by way of confrontation by the prosecutor that his statement was recorded on December 12, 1981 and not after 15-20 days. Be that as it may, the shifting testimony of PW5 could not be relied upon in absence of any corroborative evidence to hold that in fact, he had given a taxi ride to appellant on that crucial morning. It is also not understood how PW5 could have been in a position to identify Exs. P1 basket & P2 attache case for the first time when he appeared in the Court on August 10, 1988, when these goods were not put to him in the test identification parade. The witness has not given any special features of the said articles which could have been retained in memory so that he could have been in a position to identify the same when appearing in the witness box after lapse of 8-9 months. One another fact which must be highlighted at this stage is that PW5 has not deposed that he had seen the appellant coming out from the house of Vinay Arora. According to him, a boy had come to his taxi stand and hired the taxi. We are not told in evidence as to where that taxi stand is located and what is the distance from the house of Vinay Arora and the said taxi stand. Be that as it may, we find that this particular circumstance has not been established beyond reasonable doubt from any legal evidence appearing in the case.

20. The Additional Sessions Judge has then relied upon the following circumstances:

CIRCUMSTANCE No. (vi)

“That the disclosure statement of accused-Jaivir Singh led to the discovery of factum of his having taken a room on rent only on 9.12.1987 i.e two days prior to this occurrence and from that room those very attache case, iron box and basket were recovered.”

CIRCUMSTANCE No. (vii)

“That from the basket and attache case etc. large number of silver utensils, cash of more than Rs. 12,000/- and large number of ornaments were recovered pursuant to the disclosure statement of accused-Jaivir Singh. All these ornaments and silver utensils were the robbed properties belonging to the complainant and his mother.”

CIRCUMSTANCE No. (ix)

“That the recovery of the bloodstained clothes of the accused which he was wearing at the time of occurrence and which when sent to CFSL were found to have the blood of the same group as that of the deceased. (Refer to CFSL report Ex.PA and PB)”

21. In case these circumstances which have been pin pointed by the Additional Sessions Judge could be considered to have been established beyond reasonable doubt, perhaps we would have no hesitation in sustaining the conviction and sentences of the appellant. These were very material and crucial facts which indicated that soon after the murder of the said lady and the robbery which took place at her house, the appellant was found to be in possession of the robbed property and also blood stained clothes. But unfortunately for the prosecution the Investigating Officer had really blundered in this case.

22. Now we come to the evidence which is relied upon to prove these circumstances.

23. On December 12, 1987, it is alleged that appellant had made a disclosure statement to the effect that he had hired a room in Maujpur and had kept the robbed property in that room and he could get the same recovered and then he is said to have led the police party to the house of PW3 and got recovered the case property including the blood stained shirt of the appellant having the same blood group as of the deceased. It is stated by the Investigating Officer PW17 Hukam Singh SI that he had arrested the appellant on December 12, 1987. It is quite evident from the evidence that appellant was available to the police from the day of occurrence itself as he was taken to finger print expert on December 11, 1987, for taking his specimen finger print. Be that as it may, the Investigating Officer had carried out the personal search of the appellant when he was arrested on December 12, 1987 and his personal search memo Ex.PW14.B was prepared. The contents of the said document do not show that any key has been recovered from the appellant. The appellant then is stated to have been taken to the house of PW3 Ram Chander and Ram Chander deposed that appellant had handed over a key to the police and the police had opened the lock of the room from where the valuables were recovered. According to the Investigating Officer, this appellant himself had opened the lock from that key. The Investigating Officer has given a fantastic reason for not taking possession of the key when he took personal search of the appellant that the appellant had stated that he would open the lock of the said room and he was allowed to keep the key but the Investigating Officer admits that he had not recorded this crucial fact either in the case diary or in the personal search memo prepared at the time of arrest of the appellant. It is also really surprising that it did not strike the Investigating Officer to take into possession the said key and the lock and produce the same during the evidence. This mystery of the key which could have solved the mystery of this crime has not been solved by us in this case. Thus, a very crucial piece of evidence due to incompetency of the Investigating Officer has been allowed to disappear from the case;

24. The learned Counsel for the appellant has brought to our notice a judgment given by the Supreme Court in the case of Gopal Singh v. State of Madhya Pradesh, AIR 1972 SC 1557. The relevant facts pertaining to that case were that two appellants and Hatesingh, who had been specifically named in the FIR and in the dying declaration, were arrested by the police the same afternoon. Next day, i.e on January 11, 1966, according to the prosecution, on some disclosures made by the appellants, blood stained clothes were recovered from the room in which the appellants lived. A dagger was recovered from near appellant No. 1's father's house in Jaiheda. Human blood was detected on the same and principally on this evidence the prosecution charged the appellant. Blood was also detected on the shirt of Hatesing and on that evidence Hatesingh was also made a co-accused. In the said case, it was found that the appellants were living in a room close to the Police Station and they were arrested in the afternoon of 10th. It is observed by the Supreme Court that one should have expected the police to search the room immediately but it does not appear from the record that a search was made at the time. On arrest, the person of Gopalsingh was searched and an iron key with an iron ring attached to it was found oh his person, but the same was not taken into possession and sealed by the police. It was held that it was obvious that the police had the key at all time although the police Pancha witness Madan Lal in that case claimed that appellant-Gopalsingh produced the key with which the door of the room was opened next day at 2 P.M The Supreme Court, however, held that as the key, must have been in possession of the police at all relevant time, in these circumstances the said recovery effected allegedly at the instance of the accused was held to be doubtful.

25. The facts of that case to some extent are identical to this case.’ Here also the key which was used to open the lock of the particular room obviously was available to the police at all time because police had not cared to take that key and get it sealed if the key was found on the person of the appellant when his personal search was taken. In this view of the matter the recoveries effected from that room, in our view, could not have been held to be at the instance of the appellant. There have also appeared some discrepancies as to which was the actual room hired out to the appellant by PW3 Ram Chander. Ram Chander has stated that he was residing in a house at some distance from another house in which he had given a room on hire to the appellant. But while giving his residential address this witness has given the number of the same house from where the said recoveries had been effected. It is not brought out by the prosecution as to which was the other house where the appellant was residing. Ram Chander had admitted that there were other tenants living in that house in which one room was allegedly let out to the appellant on December 10, 1987. None of those tenants has been joined by the police for investigation. The police surprisingly while carrying out house search and for effecting recovery of the robbed property did not comply with the provisions of law. As required by Section 100(4) of the Code of Criminal Procedure, it was incumbent upon the police to have joined at least two respectable persons of the locality before effecting the search in that house. The Investigating Officer stated in his evidence that he did not think it necessary to call any other person from the locality as at the time of the search of the house Ram Chander PW3 was there who was residing in the locality and he was accompanied also by the complainant of the case. The Investigating Officer forgets that law requires joining of two witnesses of the locality and not one witness. He ought to have made some efforts to join someone from the locality as witness before entering the said house for carrying out the search. The Investigating Officer had not cared to keep in view the requirement of law in that connection. For all these reasons, we have to come to the conclusion unfortunately that these recoveries are doubtful and cannot be stated to have been effected at the instance of the appellant.

CIRCUMSTANCE No. (viii)

“That immediately thereafter accused Jaivir Singh took the police party to Nehru Place and got the weapon of offence recovered, which was stained with little blood and earth. It has been opined in the post-mortem report as well as report of CFSL that the injuries found on the person of the deceased could be caused with this weapon.”

26. The weapon of offence i.e knife which is stated to have been recovered from some bushes at a public place in the Nehru Place is sought to be (linked with the appellant on the basis of the disclosure allegedly made by the appellant which is portion A to A in Ex.PW14.C. We have seen the original disclosure statement and we find that it is a confessional statement which also includes disclosure statement with regard to the valuables and it is recorded; at the end of the disclosure statement that the disclosure statement had been completed. After recording these words, two and a half lines have been added mentioning that appellant had thrown the weapon of offence in the hedge near the Nehru Place and could get the same recovered. The spacing between the lines of disclosure satement which is there in the whole of the disclosure statement has been given a go by by inserting two and a half lines after completing the disclosure statement. A look at the original disclosure statement shows that in all probability the disclosure with regard to the knife appears to have been inserted afterwards. It is also to be mentioned here that the knife is stated to have been recovered from the bushes in a public place i.e Nehru Place. It is not stated by the Investigating Officer that at the time the knife was recovered from the bushes it stood concealed in the bushes and was not visible to the open eye. If that is so, such a recovery made from an open public place cannot be given any important. (See Kora Ghasi v. State Of Orissa., 1983 SCC (Cri) 387). It must also be mentioned here that sufficient blood was not detected on the blade of the knife for analysis to show the group of the blood appearing on that knife so that it could be linked with the murder of the said lady. So, this particular circumstance, in our view, also has not been established beyond reasonable doubt.

27. So, in view of the above discussion, we find that the appellant could not have been convicted on the basis of the evidence on the record which has been fully discussed by us above.

28. We allow the appeal and set aside the conviction and sentences of the appellant and direct that the appellant be set at liberty forthwith if not required to be detained in any other case.

Appeal allowed.

Jaivir Singh v. State (Delhi Admn.) .

Comprehensive Summary of the Opinion (Jaivir Singh — Appeal)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jaivir Singh v. State (Delhi Admn.) .

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