STATE v. DHARMENDRA

Sharma, a resident of New Delhi. Based on the telephonic information, the police officials visited the site in the presence of photographers. Thereafter, the lock was broken, and the body of a female was found inside the room.

3. Following this, a written report (Exh.P-1) was submitted by Sh. Krishan Dadhich, repeating the contents of the telephonic information and the fact that the police had arrived at the scene. Based on the written report dated 26.12.1994, the police registered an inquest case under Section 174 Cr.P.C., and statements of few witnesses were taken. After that, a site inspection and panchnama of the body of the deceased- Indira were prepared. The medical report was obtained from Dr. Anish Ahmed, and the recovery of articles, including a T-shirt, sweater, bag, bed-sheet, blanket etc. was carried out. Certain witnesses were examined, and thereafter, the FIR (Exh.P-28) was lodged for offenses punishable under Section 302 of the IPC.

4. The police officials thereafter recorded the statements of various witnesses and arrested the accused. The recovery of a knife and certain other articles was allegedly made at the instance of the accused. A test identification parade of the accused was then conducted. The police thereafter submitted the challan, and after the framing of charges, the examination of witnesses was conducted. The prosecution examined 14 witnesses to support their case and prove the guilt of the accused. The accused was subsequently examined under Section 313 Cr.P.C., during which he stated that he was not guilty and had been falsely implicated.

5. The trial court thereafter considered the record, took into account the arguments of both sides, and passed the judgment on

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11.04.1996, acquitting the accused-respondent. The court stated that it was a case of circumstantial evidence and that the prosecution had failed to prove the case beyond a reasonable doubt.

Argument on behalf of the appellant- State:

6. Laying a challenge to the above-mentioned judgment, the learned Public Prosecutor has argued that the learned trial court failed to consider that this was a case of circumstantial evidence, where the chain of evidence was found intact and there was no missing link whatsoever. It has been argued that the evidence of witnesses PW-2 Uttam Kumar, PW-5 Dalpat Singh, and PW-7 Sushil Kumar clearly shows that they last saw the accused with the deceased, Indira.

7. It has further been argued that all three of the above- mentioned witnesses identified the accused pursuant to the test identification parade under the supervision of PW-4 Ashok Kumar, Special Judicial Magistrate. It has further been argued that the motive for the accused murdering the deceased, Indira, has also been specified by PW-8 Praful Bhai, the brother of the deceased. Furthermore, the recovery of the knife has been proven based on the information provided by the accused under Section 27 of the Indian Evidence Act, as testified by PW-12, the then Sub-Inspector Sh. Kushal Chordia. It was thus submitted that the trial court committed gross error in acquitting the accused-respondent.

Argument on behalf of counsel for respondent-accused:

8. On the other hand, Mr. Mridul Jain, the counsel for the respondent, submitted that the learned trial court rightly held that there was no substantial evidence from PW-2 Uttam Kumar, PW-5 Dalpat Singh, and PW-7 Sushil Kumar regarding the "last seen"

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version and their alleged identification of the accused in the test identification parade was undermined by their own admissions in cross-examination. They had stated that they had seen the accused at the police station long before the test identification parade was conducted.

9. It was further stated that in the statements of PW-5 Dalpat Singh and PW-2 Uttam Kumar, there were gross improvements as compared to their earlier statements recorded during the inquest proceedings, i.e. Exh.D-7 and Exh.D-8.

10. It was further argued that no motive had been assigned to the accused for the murder of Indira. On the contrary, the statement of PW-8 Praful Bhai showed that he was informed about the accused eloping with the deceased, Indira, by Sh. Jayanti Bhai (the husband of the deceased). However, Jayanti Bhai was not produced as a witness. Additionally, the evidence of PW-4 Ashok Kumar revealed that, pursuant to the investigation, Jayanti Bhai and another individual, Mahendra Bhai, were arrested by the police. However, no documents in this regard were presented by the prosecution.

11. It was further argued that the recovery of the knife and bloodstained clothes at the instance of the accused was of no consequence. Firstly, both recovery witnesses, PW-10 Dilip Singh and PW-11 Chandu Bhai, turned hostile. During cross-examination by the Public Prosecutor, they specifically denied that any recovery had taken place in their presence and stated that they were made to sign blank papers.

12. It was also argued that PW-12 Kushal Chordia, the person in whose presence the recovery was undertaken, stated that the recovery memo did not mention the length of the knife or whether it

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had a sharp edge. This, coupled with the fact that PW-3 Dr. Anish Ahmad did not certify that the recovered knife could have caused the injuries stated in the post-mortem report, further undermines the recovery.

13. It was thus argued that the accused cannot be linked to the offense based on the doubtful recovery. It was asserted that the trial court rightly considered all these aspects while acquitting the accused.

Analysis and reasoning:

14. Having considered the arguments raised by the learned counsel for both sides and after perusal of the record, we will deal with each and every piece of evidence through which the prosecution has sought to connect the accused with the crime in question.

(i) Last seen- As far as the 'last seen' is concerned, the star witnesses for the prosecution are PW-2 Uttam Kumar, PW-5 Dalpat Singh, and PW-7 Sushil Kumar. PW-2 Uttam Kumar has stated that he used to provide beds on a contract basis to the Dharmshala in question, i.e., Fateh Memorial, Udaipur, and on 23.12.2024, the accused came to his shop around 7-8 AM to get two bed sets, stating that he was staying in room No. 16. He further states that when the accused came, he was wearing a t-shirt with something written in English. PW-2 has also stated that he was a witness to the recovery conducted by the police officials from the site of the incident, i.e., the bed sheet, blanket, clothes worn by the deceased, and other articles. PW-2 further mentions that during the test identification parade conducted at the Central Jail, Udaipur, in the presence of the Magistrate, he identified the

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accused and signed the memo (Exh.P-12) in this regard. However, a bare perusal of his cross-examination will reveal that he had visited the police station one or two times in connection with the case before the test identification parade and admitted that he had seen the accused at the police station prior to the parade. Additionally, the statement (Exh.D-8), which bears his signature and was recorded during the inquest proceedings, reveals that there was no mention of the accused wearing a t-shirt with something written in English. Instead, the version given by him in this statement was solely about the built of the person, not about the details of his clothing, as stated in his testimony before the trial court.

PW-5 Dalpat Singh was working as a gatekeeper (chowkidar) at the Dharamshala in question. He stated that on 23.12.1994, he saw the accused carrying warm water and climbing the stairs. Upon being questioned, the accused informed him that he was staying in Room No. 16. Strangely, during the course of his evidence in court, PW-5, upon seeing the accused, stated that the accused is a "same type of person" who had informed him that he was staying in Room No. 16, rather than confirming his identity with certainty. Furthermore, PW-5 had allegedly identified the accused during the test identification parade conducted vide Exh.P-12. However, during cross-examination, he clearly admitted that he had seen the accused prior to the test identification, at the police station itself. This admission significantly weakens the reliability of the identification. Additionally, there is a contradiction between the statements made by PW-5 in court and his earlier

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statement recorded during the inquest proceedings (Exh. D-7) with regard to the identity of the accused. As far as PW-7 Sushil Kumar is concerned, he stated that he was working as a Class-IV employee at the Dharamshala in question. On the morning of 23.12.1994, at around 6:30 a.m., he saw the accused arrive at the Dharamshala along with a lady and take Room No. 16, while introducing himself as Ashok Kumar Sharma, a resident of New Delhi. Sh. Sushil Kumar was also a witness in the test identification parade. However, he clearly admitted that he had seen the accused earlier at the police station, on 29th or 30th December 1994, prior to the test identification parade. Furthermore, it is strange that his statement recorded by the police was not exhibited by the prosecution during the trial. This omission further weakens the prosecution's case. Thus, the collective statements of all the key witnesses reveal that their testimonies do not inspire confidence and fail to connect the accused with the deceased, even through the test identification parade. It is an admitted fact that all three witnesses had seen the accused at the police station well before the identification parade was conducted. Accordingly, the test identification parade holds no evidentiary value and cannot be relied upon to establish that the accused was last seen with the deceased. The trial court rightly considered this aspect while disbelieving the testimony of the witnesses and has given detailed findings in this regard in Paragraphs 14 and 16 of the impugned judgment.

(ii) Motive- The only motive sought to be attributed to the accused was that he was allegedly in a relationship with the

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deceased, Indira, and had eloped with her. This allegation was made by PW-8, Shri Praful, who happens to be the brother of the deceased. However, it is significant to note that PW-8 did not have personal knowledge of this alleged relationship. Rather, he stated that he was informed about it by his brother-in-law, Shri Jayanti Bhai, the husband of the deceased-Indira. PW-8 further deposed that he had an apprehension that the accused might have murdered Indira. Strangely, Jayanti Bhai, who is the purported source of this information and a material witness, was not produced by the prosecution. This omission assumes importance, especially in light of PW-8's statement that Jayanti Bhai was arrested by the police in connection with the murder of Indira. Apart from the statement of PW-8 Praful Bhai, no other witness has been examined to establish any motive on the part of the accused.

While in a case based on direct or eyewitness testimony, motive may not be of primary significance but in a case based purely on circumstantial evidence, motive assumes great importance. It becomes a crucial link in the chain of circumstances that the prosecution must establish in order to prove the guilt of the accused beyond reasonable doubt. In the present case, the alleged motive is weak, unsupported, and based solely on hearsay, which further dilutes the prosecution's case. The failure to produce a key witness like Jayanti Bhai, and the lack of any direct evidence establishing motive, seriously undermines the prosecution's attempt to connect the accused to the crime.

(iii) Information Given by the accused-respondent under Section 27 of Indian Evidence Act Regarding the recovery

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of knife and bloodstained clothes: In the present case, the prosecution has also attempted to establish the guilt of the accused based on the recovery of socks, a bloodstained knife, and bloodstained clothes allegedly worn by the accused, all recovered at the instance of the accused pursuant to a disclosure under Section 27 of the Indian Evidence Act. According to the prosecution, after the arrest of the accused, he voluntarily provided information under Section 27 of the Indian Evidence Act on 12.01.1995 at around 1:45 PM, disclosing the location where he had kept the knife, his clothes, and shoes, which were allegedly stored in a bag at his house. Based on this disclosure, the police visited the accused's house on 14.01.1995, and the recovery of the said articles was carried out vide Exhibit P-24, while the site map of the house was prepared and marked as Exhibit P-25.The witnesses to the recovery, as shown in Exhibit P-24, were Shri Dilip Singh (PW-10) and Shri Chandu Bhai (PW-11). However, both these witnesses did not support the prosecution's version and were declared hostile. In fact, during their cross-examination by the Public Prosecutor, both witnesses categorically stated that they were made to sign blank papers by the police officials, and that no recovery was made in their presence. Further, PW-12 Kushal Chordia, Sub-Inspector admitted that the keys to the house from which the recovery was allegedly made were not with the accused, but with someone else. This fact is significant, as it casts serious doubt on the exclusive possession and knowledge of the accused with respect to the recovered articles. Without establishing this exclusive possession, the possibility of tampering cannot be ruled out, thereby breaking the chain of evidence required to link the

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accused to the crime through the recovery. Moreover, there is no mention in the record of the length of the knife, nor whether it was sharp-edged. Crucially, PW-3 Dr. Anish Ahmad has also not opined whether the injuries found on the deceased were consistent with or could have been caused by the recovered knife. This omission further weakens the prosecution's attempt to tie the accused to the offence through the alleged weapon. Although the FSL report (Exh. P-31) indicates that Blood Group 'B' was found on the knife, in the absence of a legally valid and reliable recovery, this forensic evidence cannot be relied upon. The trial court has rightly considered all these shortcomings and appropriately rejected the prosecution's claim regarding the recovery, as discussed in the impugned judgment.

(iv) Circumstantial Evidence: The case of the prosecution is based upon the circumstantial evidence and it is not a case of any eye witness. It is thus incumbent upon the prosecution to prove that the entire chain of circumstances is complete and no link is missing and that all these circumstances are so complete that they do not leave any reasonable grounds for conclusion consistent with the innocence of accused. It has rather to been shown that in all human probability the act must have been done by the accused.

In this regard, the Hon'ble Supreme Court in the case of

Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116, held as under:

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

The above-mentioned proposition has recently been reiterated by the Hon'ble Supreme Court in the case of Jabir & Ors. v. State of Uttarakhand, 2023 SCC OnLine SC 32 also. Thus, it is clear that the entire set of circumstances must lead to the only possible conclusion of the guilt of the accused, and the facts must be consistent and conclusive in nature. They must also exclude every possible hypothesis except the one pointing to the guilt of the accused. Most importantly, the chain of evidence must be complete so as to lead to a conclusion that is consistent with the guilt of the accused and must show that, in all

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human probability, the act must have been committed by the accused.

15. Consideration in Appeals Against Acquittal: The Hon'ble Supreme Court, in the case of H.D. Sundara & Ors. v. State of Karnataka, reported in (2023) 9 SCC 581, while considering the principles to be kept in mind during the hearing of an appeal against acquittal, summarized the legal position as under:

8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -

8.1 The acquittal of the accused further strengthens the presumption of innocence;

8.2 The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

8.3 The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;

8.4 If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and

8.5 The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."

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16. Taking guidance from the above-mentioned judgment, it is clear that the prosecution has failed to establish that the judgment of acquittal suffers from any perversity or is based on a misreading of the material available on record. Furthermore, this is not a case where no other reasonable view is possible. In fact, in the present case, the view pointing towards the guilt of the accused is weak and improbable, whereas the alternative view favouring the accused is much stronger and more plausible.

17. Thus, upon considering the entire record, we find that there is no infirmity in the judgment passed by the learned Trial Court dated 11.04.1996. Accordingly, the order of acquittal is upheld, and the appeal stands dismissed.

18. Keeping in view the provision of Section 437-A Cr.P.C., the accused-respondent is directed to furnish a personal bond in a sum of Rs.25,000/- and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, the accused-appellant, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court as soon as she would be called upon to do so.

19. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith.

(SANDEEP SHAH),J (DR.PUSHPENDRA SINGH BHATI),J

54-mohit/-

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