Shri Prakash S/O Shri Bhawani ... vs The State Govt. Of Nct Of Delhi
2006 Latest Caselaw 2124 Del

JUDGMENT

Madan B. Lokur, J.

1. These are two appeals by a total of three Appellants directed against the judgment and order dated 14th March, 2002 passed by the learned Additional Sessions Judge in Sessions Case No. 63/2001. By the impugned judgment and order, the Appellants were held guilty of an offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short the IPC) for committing the murder of Laxmi and for an offence punishable under Section 307 of the IPC read with Section 34 thereof for attempting to murder Radhey Shyam. Subsequently, by an order dated 15th March, 2002 all the Appellants were sentenced to undergo imprisonment for life in respect of the offence of murder and to undergo imprisonment of seven years for the offence of attempt to murder. A fine was also imposed in respect of both the convictions.

2. At the outset one rather disturbing feature of the case may be mentioned: the main witness for the prosecution, that is, PW-12 Radhey Shyam was examined on 5th May, 1992 but his cross-examination was completed after a gap of seven years on 4th June, 1999. The Supreme Court has time and again required the expeditious conclusion of a trial but in this case a large part of the delay in disposal of the case has been due to the failure of the Appellants to cross-examine PW-12 Radhey Shyam. We would one again draw the attention of the Sessions Judges to the decisions of the Supreme Court as well as the provision of Section 309 of the Code of Criminal Procedure (for short the CrPC) and hope and expect that such unreasonable delays are avoided.

3. We have dealt with this issue in some detail in Sobaran Singh v. State, Criminal Appeal No. 528 of 1998 (decided on 8th November, 2006) and do not think it necessary to repeat what we have said. We would, however, like to point out that a perusal of the order sheet of the trial court indicates some extremely frivolous grounds for granting an adjournment, namely, when the Learned Counsel for the accused was busy or not available. The adjournments led Radhey Shyam as well as other witnesses for the prosecution not to take the case quite seriously with the result that non-bailable warrants were issued for the arrest of Inspector R.S. Nehra, PW-15, Inspector Babu Lal, PW-14 and even Radhey Shyam, PW-12.

4. On 7th April, 1987, police station Kirti Nagar received information at about 2.07 am that one lady had been murdered at C-196, Mansarovar Garden. On receipt of this information, three police officers Head Constable Charan Singh (PW-4), Constable Yaqoob Ali (PW-9) and Sub-Inspector Budh Ram (PW-13) went to the spot and found the corpse of a lady who was later identified as Laxmi wife of Radhey Shyam. While certain formalities were being completed at the spot, the officer in charge of the police station Inspector R.S. Nehra (PW-15) was informed, and when he was coming to the spot in his jeep, he met Radhey Shyam and brought him along to the scene of crime. Since Radhey Shyam had suffered some injuries, he was sent to a hospital for immediate treatment and after he returned from there, inquest proceedings were conducted and it transpired that three persons, that is, Shiv Singh, Shri Prakash and Raghubir Singh (all Appellants) were accused of having murdered Laxmi and for having attempted to murder Radhey Shyam. As Learned Counsel for the Appellants put it, this is the first part of the case.

5. Thereafter, on 9th April, 1987 a post mortem was conducted on the body of Laxmi and several injuries were noted. The doctor who conducted the post mortem, Dr. L.T. Ramani entered the witness box as PW-10 and he gave an opinion that the injuries were ante mortem. One of the injuries was caused by a blunt weapon and others were caused by a sharp edged weapon. Two of the injuries caused by the sharp edged weapon were individually sufficient to cause death in the ordinary course of nature.

6. On 11th March, 1987, the three Appellants - Shiv Singh, Shri Prakash and Raghubir Singh were arrested on the basis of secret information received by the police. Shiv Singh made a disclosure statement, as a result of which one knife was recovered from underneath Yamuna sand lying in a vacant plot bearing No. C-210, Mansarovar Garden, opposite the scene of crime. All the accused persons were wearing blood stained clothes, which were taken possession of. The arrest and recovery has been described by Learned Counsel as the second part of the case.

7. After completion of investigations, the prosecution filed a challan under Section 173 of the CrPC and as a result the following two charges were framed against the Appellants on 4th January, 1988:

That on 7.4.1987 at about 1.30 A.M. at house No. C-196, Mansarover Garden within the jurisdiction of Police Station Kirti Nagar in furtherance of your common intention, you did cause the death of Smt. Laxmi and thereby committed an offence of murder punishable under Section 302 read with Section 34 of the Indian Penal Code and within the cognizance of this Court.

That on the abovenoted date, time and place, in furtherance of your common intention, you caused injuries on the person of Radhey Sham with such intention and under such circumstances that if by the above said act, you have caused the death of Radhey Sham, you would have been guilty of murder and thereby committed an offence punishable under Section 307/34 of the Indian Penal Code and within the cognizance of this Court.

All the accused pleaded not guilty and claimed trial.

8. The prosecution examined as many as 17 witnesses while the defense examined one witness. All the Appellants also gave a statement under Section 313 of the CrPC and stated that they were not present at the scene of crime and that they had been falsely implicated in the case.

9. Since two of the Appellants were not represented, we requested Mr. Vishal Gosain, Advocate to assist us on their behalf. We record our appreciation for the efforts put in by him.

10. Having heard Learned Counsel, we are of the view that there is inadequate evidence to conclude that the Appellants had either committed the murder of Laxmi or had attempted to murder Radhey Shyam. Giving them the benefit of doubt, we acquit all the Appellants.

11. In so far as the first part of the case is concerned, namely, the incident that took place on 7th April, 1997, the admitted position is that the main witness for the prosecution is Radhey Shyam, PW-12. His testimony was attacked by Learned Counsel on several grounds. However, before examining the testimony of Radhey Shyam, PW-12, it is necessary to first of all appreciate the law on the subject with regard to the evidence of a solitary witness who may be an interested witness and who may have been injured in an incident which is the subject matter of a trial. It was submitted that in view of the law laid down, Radhey Shyam's statement should be perused very carefully given the facts and circumstances of the case, namely, that Laxmi (the deceased) was married to Shri Prakash but was living with Radhey Shyam and was apparently enjoying the company of Shiv Singh with whom she had gone out for a movie sometime earlier and at whose instance a surety had been obtained to get her out on bail in connection with some case of kidnapping that had been filed against her.

12. In State of Uttar Pradesh v. Noorie it was held that While assessing and evaluating the evidence of eye-witnesses the Court must adhere to two principles, namely whether in the circumstances of the case it was possible for the eye-witness to be present at the scene and whether there is anything inherently improbable or unreliable.

That Radhey Shyam was present when Laxmi was assaulted cannot be doubted. He suffered some injuries which were proved by Dr. C. Vittal Prasad, PW-2 who examined him. (See Awdesh v. State of Uttar Pradesh ). Moreover, no one has really disputed his presence. Therefore, we are really concerned with the second circumstance mentioned by the Supreme Court.

13. The Division Bench of the Gujarat High Court in State of Gujarat v. Bharwad Jakshibhai Nagribhai 1990 Cri.LJ 2531 laid down the issues that are necessary for appreciating the evidence of an injured witness. It was said that the Court should bear in mind that:

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

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

(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.

(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.

(5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation.

(6) There is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness,the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. (The embellishments should not affect the substratum of the prosecution case - State of Karnataka v. Bheemappa 1993 Cri.LJ 2609).

The High Court also observed that in case the prosecution is unable to produce any other or independent witness to an incident that happens, say for example in a bazaar or a thickly populated area, that would be no ground to throw out or doubt the version of an injured witness or the evidence of relatives of the victim.

14. The Supreme Court in Lallu Manjhi v. State of Jharkhand stated the issues somewhat more succinctly by classifying the evidence of a solitary witness into three categories, namely, (a) wholly reliable, (b) wholly unreliable, (c) neither wholly reliable nor wholly unreliable. It was said that in the first two categories, there may be no difficulty in accepting or discarding the testimony of a single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial, before acting upon the testimony of a single witness. In this connection, the Supreme Court relied upon its earlier decision in Vadivelu Thevar v. State of Madras .

15. In Anvaruddin v. Shakoor the Supreme Court reiterated that:

This Court has, time out of number, reminded that the direct testimony of witnesses, whose evidence is otherwise consistent, should not ordinarily be rejected on the ground that they are partisan witnesses, unless the surrounding circumstances discredit their version. Ordinarily, close relatives of the deceased would not allow the real culprits to escape. The possibility of their implicating others with the real offenders must, however, be kept in mind.

16. In Joseph v. State of Kerala , the Supreme Court cautioned that when there is a sole witness to an incident, his evidence may be accepted with some degree of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. Similarly, in Chacko v. State of Kerala , the Supreme Court observed as follows:

Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained.

17. In Ashok Kumar Pandey v. State of Delhi , the Supreme Court referred to Rameshwar v. State of Rajasthan , Dalip Singh v. State of Punjab , Vadivelu Thevar v. State of Madras , Masalti v. State of U.P. , State of Punjab v. Jagir Singh and Guli Chand v. State of Rajasthan to hold It is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or both, if otherwise the same is found to be credible.

18. In Bhimapa Chandappa Hosamani and Ors. v. State of Karnataka , the Supreme Court observed as follows:

This court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural and so convincing that the court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness.

19. We may also refer to Ram Ashrit Ram v. State of Bihar which was cited before us by Learned Counsel for the Appellants. In that case, the Supreme Court observed that where the witnesses are interrelated or otherwise interested in the prosecution, their testimony has to pass the test of "close and severe scrutiny" before it can be safely acted upon.

20. The law as it stands, therefore, is that Conviction can be based on the sole testimony of a witness. There is no bar against it.

However, the testimony of such a witness should be viewed with caution and circumspection. The appropriate test to apply would be the "close and severe scrutiny" test.

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

The evidence of a sole witness should be of sterling quality, natural and convincing enough to record a conviction.

Ergo, if there is some doubt then a conviction ought not to be based on the testimony of a sole witness.

There would, of course, be some notable exceptions, as for example in a case of sexual assault, but we are not concerned with such a case.

21. On the basis of the law laid down, Learned Counsel tried to discredit Radhey Shyam, and in this connection, it was firstly contended that the testimony of this witness is unnatural and suspicious and, therefore, ought not to be given any credence.

22. According to Radhey Shyam, while he, Laxmi and her daughter (who was at that time about 11/2 to 2 years of age) were sleeping in one room, the Appellants broke open the door at about 1.30 am. Appellant Shiv Singh was armed with a knife, Appellant Raghubir Singh was armed with an iron pipe and Appellant Shri Prakash was armed with an iron rod (sariya). Radhey Shyam says that Raghubir Singh gave a blow with the iron pipe on Laxmi's head and Shiv Singh caught hold of her hair and inflicted a knife blow on her neck. Shri Prakash and Raghubir Singh inflicted blows on the head and chest of Radhey Shyam with the iron pipe and sariya as a result of which he sustained some injuries. Thereafter, the Appellants left the room saying "kaam tamam ho gaya hai".

23. It appears that Radhey Shyam then picked up Laxmi's daughter and left her with a Nepali chowkidar nearby and went towards Mayapuri chowk to inform the police about the incident. The chowk was about half a mile away and there he was met by Inspector R.S. Nehra, PW-15. Radhey Shyam got into his jeep and went along with him to the site. He told Inspector R.S. Nehra that his wife Laxmi had been killed but when asked to give a statement, he said that he was in severe pain. Accordingly, Inspector R.S. Nehra sent Radhey Shyam to a hospital in his jeep along with Head Constable Charan Singh, PW-4. Radhey Shyam was examined in the hospital and the injuries on his person were noted. The MLC prepared in respect of Radhey Shyam by Dr. C. Vittal Prasad, PW-2 stated that Radhey Shyam was brought with a history of an assault. The names of the Appellants were not mentioned. After medical treatment, Radhey Shyam was brought back to the scene of crime. It is unclear when Radhey Shyam reached the scene of crime because according to Inspector R.S. Nehra, he was sent to the hospital at about 3.15 am and returned at about 4.15 - 4.30 am while according to Radhey Shyam, it took him about two hours in the hospital. Be that as it may, the statement of Radhey Shyam was then recorded in which he stated that Laxmi was murdered by the three Appellants. Thereafter, inquest proceedings were conducted.

24. According to Learned Counsel, it is extremely odd that when Radhey Shyam was picked up by Inspector R.S. Nehra in his jeep and he informed the Inspector about the murder of his wife, he did not name the assailants. Even when they reached the scene of crime, the assailants were not named. Similarly, when Radhey Shyam was taken to the hospital he did not name the assailants. It is only when he returned after treatment from the hospital that he allegedly named the assailants for the first time just before the inquest proceedings, but the inquest proceeding do not record the names of the assailants. It was also submitted that it is rather odd that none of the police officers present at the scene of crime made any inquiry from him about who were the assailants. It was submitted that if such an inquiry had been made, perhaps immediate steps could have been taken to apprehend the assailants and that those steps might even have been successful.

25. We agree with Learned Counsel that the conduct of Radhey Shyam is quite odd. In the first place, he did not (quite apparently) inform the Nepali chowkidar about the incident or give him the names of the assailants. When he met Inspector R.S. Nehra at Mayapuri chowk, he did not inform him the names of the assailants. When he reached the scene of crime with Inspector R.S. Nehra, there also he did not inform any of the police officers the names of the assailants. Even the doctor in the hospital was kept in the dark, which may perhaps be understandable. But not informing the police officers to whom he had gone to complain or those who had come to investigate the crime appears to be rather inexplicable. To make matters worse, none of the police officers made any attempt to find out, with some degree of promptitude and dispatch, as to who were the assailants. That the assailants were named just before the inquest proceedings (although the inquest report Exhibit PW-13/C does not record that) does not help the prosecution, because by then several hours had elapsed. The complete lack of any interest at the earliest point of time to identify the assailants, both by Radhey Shyam or the police, is rather unusual, to say the least.

26. In a slightly different context, in Jagir Singh v. State (Delhi Admn.) the Supreme Court noted that the name of the assailant is a very important part of the information in regard to an incident. If a witness does not name the assailant, then the police officer should get the information from him, if the witness knew it. Even then, if the name of the assailant is not made available, the "irresistible inference" must be that the witness did not know the name of the assailant, or, we may add, the witness did not want to disclose it for whatever reason. Applying this logic to the present case, we must conclude that either Radhey Shyam did not know the names of the assailants (which is unlikely) or that he withheld their names for some inexplicable reason or that the Appellants were not the assailants.

27. In Raj Kumar v. State 67 (1997) DLT 486 (DB), this Court observed that the "normal and natural reaction" of the uncle of the injured would be to divulge the name of the assailant to the father of the injured. If we transpose this observation to the facts of the present case, it must be held that the "normal and natural reaction" of Radhey Shyam would be to divulge the names of the Appellants who had murdered his wife, at the earliest, to Inspector Nehra or the police officers who had come to investigate the case.

28. Failure to record the names of the assailants in the brief facts of the inquest led the Supreme Court to observe in Balaka Singh v. State of Punjab that ... the omission of the names of the four accused acquitted by the High Court in the inquest report was a very important circumstance which went in favor of the four accused. This omission has a twofold reaction. In the first place, it throws doubt on the complicity of the four accused acquitted by the High Court and secondly it casts serious doubt on the veracity and authenticity of the F.I.R. itself.

Under these circumstances, we agree with Learned Counsel that the conduct of Radhey Shyam and the police casts some doubt on the credibility of the testimony of Radhey Shyam and the investigation into the case.

29. It was submitted, secondly, that there was considerable discrepancy in the timings when Inspector R.S. Nehra is said to have met Radhey Shyam. According to Inspector Nehra, he received information about the incident at 2.45 am and he met Radhey Shyam at about 3.00 am. They both reached the scene of crime at about 3.10 am. On the other hand, Head Constable Charan Singh stated that he reached the scene of crime within five minutes of receiving the information at 2.07 am and about 5 to 7 minutes later, Inspector Nehra reached the scene of crime making it that Inspector Nehra reached the scene of crime at about 2.15 am. On the other hand, Constable Yaqoob Ali, PW-9 who had accompanied Head Constable Charan Singh to the scene of crime confirmed that they reached there within 5 to 7 minutes of the receipt of information but strangely that Radhey Shyam was present at the scene of the crime.

30. We do not think that much can be made about this discrepancy in timings particularly in view of the fact that these witnesses were examined several years after the incident. Head Constable Charan Singh and Constable Yaqoob Ali were examined in February-March, 1992, that is, about five years after the incident while Inspector R.S. Nehra was examined in March, 2001, that is, about 14 years after the incident. There are bound to be some discrepancies in timings in view of the delay which, in any event, do not appear to be material.

31. Moreover, on a consideration of the evidence before us, it does appear that Radhey Shyam met Inspector Nehra, as stated by the inspector, at about 3.00 am because the MLC in respect of Radhey Shyam (Exh.PW-11/A) shows that he had reached the hospital at about 3.20 am. This is consistent with the statement of Inspector Nehra rather than with the statements of Head Constable Charan Singh and Constable Yaqoob Ali. The discrepancies mentioned above do not cast any serious overall doubt on the testimony of Radhey Shyam.

32. The third submission in this regard related to the delay in the alleged statement given by Radhey Shyam implicating the Appellants in the crime. This is really a different facet of the first contention. It may be recalled that after Radhey Shyam came back from the hospital, he made a statement in which he blamed the Appellants for the murder of Laxmi and the attack on him. Thereafter, the inquest proceedings were held but in the inquest proceedings there is no mention of the names of the assailants. Learned Counsel used this circumstance not only to submit that the assailants were not named at all, but also that if they were named, it was after an inordinate delay. We find some merit in this contention inasmuch as Inspector Nehra has stated in his cross-examination that Radhey Shyam returned from the hospital at about 4.15 - 4.30 am. The inquest proceedings were prepared after his arrival and after the statement of Radhey Shyam was recorded. Inspector Nehra does not indicate when the statement of Radhey Shyam was recorded nor does he indicate when the inquest proceedings were held but he does say that he remained busy at the spot for about 5 to 6 hours and reached the police station around 12.00 noon after making enquiries. Radhey Shyam states that he returned from the hospital at about 11.00 am. This is clearly not possible because he says that he was at the hospital for about two hours, having reached there at about 3.20 am as we have found. In other words, Radhey Shyam returned to the scene of crime at about 5.00 or 5.30 am and certainly not at 11.00 am as mentioned by him. If it is taken that the inquest proceedings were conducted at around 11.00 am, which is quite possible, it makes the situation even worse for the prosecution because the enormous delay in recording the statement of Radhey Shyam just before the inquest proceedings is inexplicable. The delay in recording his statement and the fact that the names of the Appellants were not mentioned in the inquest proceedings leads us to believe that the names of the assailants were withheld unreasonably for a couple of hours and for no apparent cause.

33. It was submitted that on a cumulative appreciation of these facts concerning the testimony of Radhey Shyam and his interest in the case, the Court is required to separate the grain from the chaff but in this case both the grain and the chaff are inextricably linked up. It was submitted that what this Court has to see is not what may be true but what must be true and the suspicious testimony of Radhey Shyam indicates that what he has stated may be true but there is some manner of doubt in the correctness of his statement and so it cannot positively be said that what he has stated must be true.

34. We agree with Learned Counsel, both on facts and in law. As far back as in 1957, the Supreme Court said, in Sarwan Singh Rattan Singh v. State of Punjab that, It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.

35. While relying upon Sarwan Singh Rattan Singh, the Supreme Court said in Mousam Singha Roy v. State of West Bengal that, ... the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.

36. Similarly, in Dasari Siva Prasad Reddy v. The Public Prosecutor , the Supreme Court observed, A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution.

37. While dwelling on the actual attack as described by Radhey Shyam, it was submitted by Learned Counsel that the inflicting of a sariya blow on Radhey Shyam by Shri Prakash was an improvement over what Radhey Shyam had stated before the police during investigations. In this regard, reference was made to the site plan that was prepared by Balbir Singh, PW-1 on 7th April, 1987. As per the site plan, Raghubir Singh is shown to have attacked Radhey Shyam with an iron pipe and there was nothing to show that Shri Prakash attacked Radhey Shyam with a sariya. This by itself is inadequate, but if it is coupled with his statement given under Section 161 of the CrPC, wherein Radhey Shyam had not stated that Shri Prakash had hit him with a sariya, then it is quite clear that there is an improvement between the statement made during investigations and during the trial. In Dhanna v. State of Madhya Pradesh 1996 Cri.LJ 3516, the Supreme Court approved the reasoning given by the trial court to the effect that when a statement is made to the police during investigation and that is improved at the trial, then a conviction for the offence of murder ought not to be passed. Consequently, it is certainly not possible for us to uphold the conviction of Shri Prakash for the murder of Laxmi or for that matter even for the attempt to murder Radhey Shyam.

38. Learned Counsel for Shri Prakash made an additional contention, with which we agree, that Shri Prakash had no common intention with the other Appellants to commit the offences that he was charged with. In Badruddin v. State of Uttar Pradesh (1998) 7 SCC 300, the Supreme Court observed as follows:

Though establishing common intention is a difficult task for the prosecution, yet, however difficult it may be, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of mind of all the assailants to commit the offence, be it prearranged or on the spur of the moment but it must necessarily be before the commission of the crime.

39. There is no evidence for us to conclude that before the attack on her, Shri Prakash had any intention to kill Laxmi, more particularly since he did not even attack her as per the statement of Radhey Shyam. It is also extremely doubtful whether Shri Prakash had any intention to murder Radhey Shyam. That Shri Prakash perhaps had a serious grudge against Radhey Shyam because his wife was living with him is no reason to conclude that he had wanted to murder Laxmi or Radhey Shyam or both. The mere existence of a motive cannot form the basis of a conviction. In Narsinbhai Haribhai Prajapati v. Chhatrasinh AIR 1977 SC 1753, the Supreme Court went a little further and held, on the facts of that case where there was an existence of a motive and recovery of bloodstained clothes and the weapon of offence, in view of the evidence on record, that was not sufficient reason to return a finding of conviction.

40. The testimony of Radhey Shyam may be true but in view of some inexplicable gaps we cannot hold that his testimony must be true. We are, therefore, unable to completely accept his testimony to uphold the conviction of the Appellants in so far as the first part of the case is concerned.

41. In support of his case, Learned Counsel for the Appellants sought to place reliance upon the testimony of the daughter of Shri Prakash and Laxmi, that is, Sunita Mouriya, DW-1. We find that she was about 11/2 to 2 years of age when the incident occurred and her oral testimony was recorded after about 15 years when she was aged about 17 years. Under these circumstances, we cannot, and do not, place any reliance on what she narrated in Court which, we may incidentally mention, is far too vivid a description of what had transpired.

42. In so far as the second part of the case is concerned, we find that the prosecution is on an even stickier wicket. Learned Counsel for the Appellants raised two contentions in respect of this part of the case. The first submission related to the arrest of the Appellants while the second submission related to the recovery of the knife said to have been used by Shiv Singh in the attack on Laxmi.

43. The Appellants were arrested from somewhere near the bushes and Mazar close to the railway line in Inderpuri. They were located as a result of some information received by the police from a secret informer. Inspector Babu Lal, PW-14 and Inspector R.S. Nehra, PW-15 along with Sub Inspector Budh Ram, PW-13 and some others, were the officers who had arrested the Appellants on the basis of the secret information.

44. According to Sub Inspector Budh Ram, the police party reached the scene of arrest at about 2.00 pm and since it was a factory area there was no abadi nor were there any jhuggis nearby but nobody was called from the factory area to be present at the time of the arrest. This witness stated that the Appellants were wearing bloodstained clothes and possession was taken of these bloodstained clothes. The Appellant Shiv Singh made a disclosure statement to the effect that the knife used in the attack on Laxmi was hidden in plot No. C-210, Mansarovar Garden.

45. Inspector Babu Lal confirmed the statement made by Sub Inspector Budh Ram, PW-13 to the effect that no one was available at the time of arrest although he did state that two or three persons had passed near the railway line who were requested to join the investigation but they declined. He also stated that the Appellant Shiv Singh had made a disclosure statement as a result of which the knife kept under a heap of sand was found at C-210, Mansarovar Garden. Inspector R.S. Nehra, PW-15 confirmed what the other two witnesses, namely, Sub Inspector Budh Ram, PW-13 and Inspector Babu Lal, PW-14, had stated.

46. According to Learned Counsel, the information received by the police could not be relied on because the secret informer was not produced in the witness box. In support of this contention, reliance was placed upon Kanhai Mishra v. State of Bihar . We are afraid that Learned Counsel has misread the decision of the Supreme Court. In that case, the circumstance that was used against the appellant was that after having committed an offence of rape, he had absconded from his house. The evidence in this regard, as per the investigating officer, was that he had received secret information to the effect that the appellant was seen fleeing away wearing only his undergarments. The Supreme Court noted that the investigating officer did not state from whom he received the secret information and as such that information cannot be made the basis to prove the circumstance being used against the appellant. That was, therefore, a clear case of hearsay evidence which is hit by Section 60 of the Indian Evidence Act, 1872.

47. Similarly, in Bhugdomal Gangaram v. State of Gujarat , accused No. 3 and 5 were convicted on the basis of the evidence of a witness to the effect that he had received information that a truck would be carrying liquor to Ahmedabad and accused No. 3 and some other persons would be coming in a taxi behind the truck. In that context, the Supreme Court observed that since the informant had not been examined, evidence to the effect given by the witness that he was informed that accused No. 3 would be coming behind the truck in a taxi was not admissible. In that case, the Supreme Court was considering the provisions of Section 66(1)(b) of the Bombay Prohibition Act, 1949 (under which accused No. 3 was convicted) and that Section lays down that whoever in contravention of the provisions of the Act or of any rule, regulation or order made or of any license, permit, pass or authorisation issued under the Act, consumes, uses, possesses or transports any intoxicant (other than opium) or hemp shall, on conviction, be punished suitably and as such accused No. 3 could not be connected with the truck carrying prohibited liquor.

48. In so far as the present case is concerned, there is no secret information that is being used against the Appellants as a circumstance to base a conviction. The information was only with regard to the presence of the accused at a particular place. Their presence near the Mazar was not a circumstance leading to their conviction; it was only a circumstance that led to their apprehension and nothing more. We, therefore, do not find the two judgments cited by Learned Counsel to be of any relevance to the facts of the present case.

49. With regard to the recovery of bloodstained clothes that the Appellants were wearing, it was submitted that it is extremely unlikely that three or four days after the murder, the Appellants would still be roaming around wearing bloodstained clothes. It was submitted that this was highly improbable. Reliance was placed upon Khalil Khan v. State of Madhya Pradesh . In the cited decision, the Supreme Court observed:

... the incident in question had taken place on 6-4-1986 and the accused was arrested only on 11-4-1986, nearly four days thereafter. We find it extremely difficult to believe that a person who is involved in such a serious crime like murder would still be wearing clothes which are bloodstained even four days after the murder which fact we find is opposed to normal human conduct.

We are of the view that the decision relied upon is quite appropriate. We find it difficult to believe that in a crowded city like Delhi, the Appellants (not one but all three) would continue to wear bloodstained clothes. Surely they could be credited with the sense, or at least one of them could be credited with the sense to remove the bloodstained clothes. Reference may also be made to Latoori Lal v. The State , which was a slightly more extreme case where the accused was arrested after 11 days of the occurrence and was still wearing bloodstained clothes. This Court found it difficult to believe the evidence.

50. It was also contended that even though witnesses could have easily been procured from the factory or the nearby market area, the police took no steps to get some independent persons at the time of recovery of the bloodstained clothes of the Appellants. The mention about two or three persons who had passed by the area but who refused to join in the investigations was a cooked up story. We have already dealt with this issue. It was also contended that the seizure memos in respect of the clothes as well as the knife were not signed by any of the Appellants and, therefore, cannot be trustworthy.

51. In this context, Learned Counsel also contended that as per the CFSL report, the blood group of Laxmi was 'B' and that blood group was found on the pajama of Shri Prakash even though the admitted position is that he had not attacked her but had only attacked Radhey Shyam. We do not think very much can be read into this. It is possible that when blood spurted out from the body of Laxmi it may have fallen on the pajama of Shri Prakash since the attack was not in a very large room. Consequently, the presence of 'B' group bloodstains of Laxmi on the pajama of Shri Prakash is of no material consequence.

52. With regard to the recovery of the knife from C-210, Mansarovar Garden, the contention of Learned Counsel was that it was an open plot and accessible to all. Consequently, the recovery of the knife from that area does not in any manner implicate Shiv Singh or for that matter any of the Appellants. Reliance was placed upon Salim Akhtar v. State of Uttar Pradesh 2003 SCC (Cri) 1149. In that case, a pistol was allegedly recovered at the pointing out of the appellant, but the pistol was not sealed at the spot, nor was its number or make noted to fix its identity. These omissions raised considerable doubt about the factum of recovery. We do not see how this case helps the Appellants as it is based on a completely different set of facts. Learned Counsel relied upon a decision referred to in Salim Akhtar and that decision is Raosaheb Balu Killedar v. State of Maharashtra 1995 CriLJ 2632. The latter decision makes rather interesting reading. In that case, the appellant had stated, "Revolver is concealed at Dadar. Come on. I will point out the place and revolver." The Supreme Court held that the statement was capable of being interpreted to mean that the appellant had the knowledge about the concealment of the revolver at the particular place from where it was recovered and not that he had concealed the revolver. We do not see how this decision helps learned cousel.

53. In State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370, the Supreme Court considered the argument with regard to recovery of an object from a place "open or accessible to others". The Supreme Court explained that what is important is not whether the place is accessible to others but whether the object was ordinarily visible to others. If it is not, then whether the place from which it was recovered is accessible to others or not is not material. This is what the Supreme Court had to say There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.

It is in this context that decisions regarding recovery of an object from an open and accessible place have to be considered. In Trimbak v. State of Madhya Pradesh , the Supreme Court considered the recovery of ornaments from an open field accessible to all and applied the "compatibility cum knowledge test" namely that the fact of recovery by the accused should be compatible with the circumstance of somebody else having placed the articles in the open field and of the accused somehow acquiring knowledge about their whereabouts.

54. Reliance placed by Learned Counsel for the Appellants on Maruti Rama Naik v. State of Maharashtra is somewhat misplaced for the reason that recovery in that case was made from a place which was easily accessible to other persons and also the fact that recovery was made almost 9 days after the incident in question. On these facts, this decision does not advance the case of the Appellants in any manner whatsoever.

55. We are also unable to appreciate the relevance of Aslam Parwez v. Govt. of NCT of Delhi . That was a case where the accused had been convicted under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short TADA) where mere possession of an unauthorised arm or ammunition was punishable. In that case, the Supreme Court noted several factors to disbelieve the recovery even though the revolver was recovered after digging out the earth. It was noted that no public witness was involved in the recovery; the recovery had been made after 8 months; the recovery was made from an open place by the side of a building under construction; the area was accessible to all and everyone including those who were engaged in the construction of the building. Under these circumstances, the Supreme Court took the view that mere knowledge of the accused about the place where the offending arm was kept does not amount to conscious possession so as to result in a conviction under Section 5 of TADA.

56. We are of the view that even though C-210, Mansarovar Garden might have been accessible to all and sundry, there is no way that Shiv Singh could have known about the knife being hidden under a pile of sand in that plot if he was not the person who had hidden it. But the contention of Learned Counsel for the Appellants is that Shiv Singh had not hidden the knife under the heap of sand and in fact no recovery was made from C-210, Mansarovar Garden. According to him, the entire recovery was cooked up. In support of this, Learned Counsel pointed out that the seizure memo does not bear the signature of any independent witness but only of the police officers who had arrested the Appellants.

57. Reliance was placed upon Jackran Singh v. State of Punjab wherein an observation was made to the effect that the disclosure statement inspires no confidence, inter alia, because it does not bear the signatures or thumb impression of the appellant. The Supreme Court went on to say that:

The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement.

A reading of the judgment indicates that one of the other factors that the Supreme Court took into consideration for making this observation is that none of the panch witnesses were examined at the trial. That is not so in the present appeal.

58. In State, Govt. of NCT of Delhi v. Sunil (2001) 1 SCC 652, the Supreme Court made some extremely categorical observations which are worth quoting. It was stated as follows:

Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

It was then held:

Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

59. In view of the explicit statement of law enunciated by the Supreme Court, we are not in a position to hold that merely because the recovery was not witnessed by an independent person or that the recovery memo was not signed by the Appellants ipso facto means that the recovery is doubtful.

60. However, we are of the opinion that the entire second part of the case is rather doubtful beginning with the arrest of the Appellants while they were wearing bloodstained clothes. Since we are not prepared to accept that part of the case, the entire subsequent events sought to be relied upon by the prosecution are also not quite convincing. Even the recovery of the bloodstained knife could have been cooked up in the circumstances of the case, as contended. In this context, we feel that to bring some credibility to the recovery of the knife, it would have been appropriate if the recovery had been made either in the presence of some independent persons or the recovery memo was signed by the Appellants, but that has not happened.

61. Before parting with this case, we may notice one odd fact. When Radhey Shyam went to inform the police about the incident, he left Laxmi's daughter with the Nepali Chowkidar. Later, the Nepali chowkidar was a witness to the inquest proceedings and his statement was also recorded. Yet, he was not called to the witness box by the prosecution despite being the first person that Radhey Shyam met after the incident. We do not know why.

62. Under the circumstances, we find it difficult to accept the version of the prosecution as being the gospel truth. We allow the appeal and set aside the conviction of all the Appellants. They should be set at liberty forthwith unless they are required in some other case.

63. In view of the efforts put in by Mr. Vishal Gosain, Advocate, we direct the State to pay him a fee of Rs. 5,500/- (one set) within six weeks from today.