Pradeep Gandhi vs State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 241 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: January 06, 2010
                             Judgment delivered on : January 18, 2010


+     CRIMINAL APPEAL NO.76/1997


      PRADEEP GANDHI                           ..... APPELLANT
                  Through:          Mr. Gaurav Gandhi, Advocate

                    Versus

      STATE (GOVT. OF NCT OF DELHI)    ..... RESPONDENT
                    Through: Mr. Pawan Sharma, Standing Counsel

      CORAM:
      HON'BLE MR. JUSTICE A.K. SIKRI
      HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.    Whether Reporters of local papers
      may be allowed to see the judgment?                 Yes

2.    To be referred to the Reporter or not ?             Yes
3.    Whether the judgment should be
      reported in Digest ?                                Yes

AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

20.11.1996 convicting the appellant under Section 302 IPC for

committing murder of Ms. Shanno Bhandari and the order on sentence

of the even date in terms of which the appellant has been sentenced to

undergo imprisonment for life and also to pay a fine of Rs.2000/- and in

default of payment of fine, to undergo RI for further period of six

months.

2. Briefly stated, case of the prosecution is that on 31.10.1994 at

around 3:25 pm, wireless operator No.58 informed the duty officer, PS

Civil Lines that Head Constable Kesar Dev (PW12) of police control

room has informed that a person has been stabbed at 27, Sri Ram

Road. Aforesaid information was recorded in the daily diary as DD

No.9A (Ex.PW14/A) and a copy thereof was handed over to SI Badlu

Khan(PW19) for verification, who along with Constable Dalbir Singh

No.655N (PW 11) left for the spot of occurrence, i.e., a kitchen forming

part of House No.27, Sri Ram Road. SI Badlu Khan found the dead

body of a lady aged about 65 years, whose name on inquiry was

disclosed as Smt. Shanno Bhandari, lying in a pool of blood in the

kitchen and the adjoining residential room appeared to be normal.

There were multiple wounds on the dead body, which appeared to

have been caused with a 'churra' (dagger) Ex.P-5 found lying on the

spot. No eye witness was available at the spot. SI Badlu Khan

prepared the rukka Ex.PW15/A, requesting the duty officer to register a

case under Section 302 IPC and sent it to the Police Station through

Constable Dalbir Singh (PW11). On the basis of said rukka, formal FIR

No.362/94 (Ex.PW15/B), PS Civil Lines was registered and copy of the

police file together with the rukka was sent to SHO through Constable.

The dog squad, photographer and crime team were also informed and

requested to reach at the spot. Copies of the FIR were sent to the

higher authorities through special messenger Constable Lal Singh

(PW16).

3. On the receipt of the copy of FIR, the SHO Inspector B.S. Dahiya

(PW24) reached at the spot of occurrence. He inspected the spot and

prepared the rough site plan Ex.PW24/A. The crime team also reached

at the spot and it was got photographed. The „chhura‟ Ex.P-5 was

seized and its sketch Ex.PW19/C was prepared and thereafter it was

taken into possession vide memo Ex.PW19/A after converting it into a

sealed packet. The SHO also lifted the blood from five different spots

and took those samples into possession vide memo Ex.PW19/B. The

Investigating Officer also conducted inquest proceedings and recorded

statements of Ram Niwas (PW4), Sri Niwas and Smt. Krishna(PW6),

Exhibits PW4/A, PW24/B and PW24/C respectively. He filled up the

inquest form Ex.PW24/D and sent the dead body of the deceased to

the mortuary, Civil Lines Hospital for post mortem examination. He

also made a written request for preserving the blood as well as the

clothes of the deceased. The Doctor concerned handed over some

gold ornaments, i.e., a gold ring, a pair of tops and a pendent

belonging to the deceased to Constable Dalbir Singh (PW11), which

were seized after converting them into a sealed parcel vide memo Ex.

PW10/A. The clothes of the deceased were also handed over by the

Doctor concerned to Constable Dalbir Singh, which were again

converted into sealed packets and taken into possession. The dead

body of the deceased was identified by Shri Raman Bhandari and

Yogeshwar Lal (PW3), son and brother of the deceased.

4. On 14.11.94, special staff of North District arrested the appellant

Pradeep Gandhi and he made a disclosure statement regarding his

involvement in case FIR No.362/94. On the receipt of this information,

Inspector B.S. Dahiya (PW24), SI Rishi Ram (PW23), SI Badlu Khan

(PW19) and other staff reached at Tis Hazari Courts and formally

arrested the appellant and obtained his police custody remand.

Investigating Officer also collected the disclosure statement Ex.PW21/A

made by the appellant to the special staff. The appellant, after his

formal arrest, was sent to Civil Hospital for his medical examination

and his blood samples, collected by the doctor, were seized vide memo

Ex.PW24/G. The appellant pursuant to his disclosure statement led the

police party to his house situated at near Kakrola More, Uttam Nagar

and from there he recovered a shirt, pant and a pair of shoes having

faint blood stains, which were seized vide memo Ex.PW7/A. The

appellant had injury on his right hand finger and he disclosed that he

had suffered that injury while committing the crime and also disclosed

that he took treatment from a Doctor at Uttam Nagar. Thereafter, the

appellant led the police party to the shop of said Dr. Ravinder Amraik,

(PW1), who identified the appellant and confirmed treating him on

31.10.94. Thereafter, the appellant led the police party to the

jewellery shop of Pradeep Kumar (PW17) at Dariba, Chandni Chowk

and the shop owner Pradeep Kumar produced one gold chain and

claimed that said gold chain was pawned with him by the appellant in

consideration of Rs.3200/-. He also produced a 'girvinama' Ex.PW17/A

pertaining to that gold chain. Said gold chain and 'girvinama' were

seized by the police.

5. On 15.11.94, on further interrogation, the appellant disclosed

that he also took away the purse of the deceased containing some

money and papers which he had kept at his house. Pursuant to that

disclosure statement Ex.PW19/E, the appellant led the police party

again to his house and produced a lady‟s purse from a box kept in his

room. The purse contained some letters having name and address of

the deceased and an envelope etc. Those articles were seized vide

memo Ex.PW17/C. The appellant also led the police party to a knife

shop at Nai Sarak where the shop owner Harnam Singh (PW18)

identified the appellant and claimed that the appellant had purchased

a chhuri from him on 28.10.94.

6. Statements of witnesses were recorded under Section 161 Cr.P.C.

and on completion of investigation, a challan was filed against the

appellant. The appellant was charged under Section 302 IPC for the

murder of Ms. Shanno Bhandari. The appellant pleaded not guilty to

the charge and claimed trial.

7. In order to bring home the guilt of the appellant, prosecution

examined 24 witnesses. Material witnesses, however, are PW1 Dr.

Ravinder Amraik , PW7 Amar Singh, PW8 Dr. Vandana Bagga, PW17

Pradeep Kumar and PW18 Harnam Singh, besides the police officials.

8. PW1 Dr. Ravinder Amraik is running a clinic at Kakrola More, New

Delhi. He deposed on the basis of the register of patients maintained

by him and stated that as per the entry in the said register, one

Pradeep Gandhi aged 22 years visited his clinic with injury on the little

finger of his right hand and he did dressing of the said injury. PW1

stated that the appellant appeared to be the same Pradeep whom he

had treated for the finger injury. The witness, however, has not proved

the register or the relevant entry nor had he given the date on which

he treated Pradeep Gandhi.

9. PW7 Amar Singh is the owner of RZ-C/228, Patel Garden, Kakrola

More, Uttam Nagar, Delhi. He deposed that the appellant was a tenant

in his house in respect of a room on monthly rent of Rs.400/-. This

witness was examined by the prosecution to prove the recovery of the

blood-stained pant, shirt and a pair of shoes from the said tenanted

premises at the instance of the appellant on 14.11.94 and also the

recovery of a lady‟s purse containing an envelope bearing the name of

the deceased with her address, two photographs of her son Raman

Bhandari, a letter and two papers written in English at the instance of

the appellant on 15.11.94. He, however, did not support the

prosecution version. He was cross-examined at length by learned APP

but to no avail.

10. PW8 Dr. Vandana Bagga, Medical Officer civil Lines, Rajpur Road

stated that on 14.11.94 at about 5:45 pm, she examined the appellant

who was brought to the Civil Hospital by SI Rishi Ram and on medical

examination, she found a healed scar mark on the right index finger of

the appellant. The above injury was simple in nature and was more

than a week old. She further stated that she collected the blood

sample of the appellant which was sealed in her presence and handed

over to the Investigating Officer SI Rishi Ram. She proved the MLC of

the appellant Ex.PW8/A. In the cross-examination, the witness stated

that the injury had already healed, therefore, no definite opinion could

be given if it was caused by a sharp edged or any other weapon.

11. PW17 Pradeep Kumar is running a jewellery shop at IInd floor,

1666, Dariba Kalan, Delhi. He stated that the appellant had pawned a

gold chain weighing 20 gm with him for a consideration of Rs.3200/-

and executed the „girvinama‟ Ex.PW17/A. He further deposed that on

14.11.94, the appellant led the police to his shop and thereafter he

produced one gold chain Ex.P-3 and a „girvinama‟ Ex.PW17/A, which

were seized vide memo Ex.PW17/B.

12. PW18 Harnam Singh stated that he was running scissor/knife

shop in the name of Meerut Saan and Scissor at Nai Sarak, Chandni

Chowk. He claimed that in the month of October, 1994, the appellant

purchased one 'chhuri‟ Ex.P-5 from his shop for Rs.25/-. He identified

said 'chhuri' in the court. In the cross-examination, he denied the

suggestion that the appellant did not purchase said 'chhuri' from him.

13. PW22 ASI Ram Kumar and PW21 Constable Mukesh Kumar have

given more or less similar version in the court. They have stated that

on 14.11.94 at around 7/7:30 am, they were making an effort to obtain

information regarding the culprit pertaining to the instant case FIR

No.362/94, PS Civil Lines. When they reached Kakrola More, Uttam

Nagar and made inquiry about Pradeep Gandhi, they came to know

that a person by the name of Pradeep Gandhi had recently occupied a

portion of house No.RZ-228, Patel Garden as a tenant. Thus, they went

to the said house and met the appellant. On their inquiry about

Pradeep Gandhi, the appellant initially told them that no person by the

name Pradeep Gandhi was residing there. When they persisted with

their inquiry and expressed their suspicion against the appellant, he

finally admitted that he was Pradeep Gandhi. On further interrogation,

the appellant initially denied having knowledge about the murder of

Ms. Shanno Bhandari. Thereafter, the appellant was brought to the

office of special staff, North District for further interrogation when he

made a disclosure statement Ex.PW21/A giving the details of the

incident and disclosed that he had sold the gold chain of the deceased

to a shopkeeper at Dariba Kalan for Rs.3200/- and also kept his washed

clothes and shoes which had blood stains at his house.

14. PW24 Inspector B.S. Dahiya, the then SHO, PW23 SI Rishi Ram,

PW19 SI Badlu Khan are other witnesses to the disclosure statements

made by the appellant and the recovery of incriminating articles at his

instance.

15. Statement of appellant under Section 313 Cr.P.C. was recorded

wherein he denied the allegations and claimed that he has been falsely

implicated in this case.

16. On perusal of the impugned judgment, it transpires that the

learned Trial Court has returned the finding of guilt of the appellant on

the basis of the following incriminating circumstances taken to be

established by the prosecution:

(i) The motive for the commission of offence, i.e., robbery.

(ii) That the weapon of offence, i.e., „chhuri' Ex.P-5 recovered from the spot was purchased by the appellant from the shop of PW18 Harnam Singh in October, 1994 for Rs.25/-.

(iii) That the gold chain Ex.P-3 belonging to the deceased was pawned by the appellant with Shri Pradeep Kumar, shop owner of M/s. Heena Jewellers, Dariba, Chandni Chowk in consideration of Rs.3200/- for which he had already executed a pawn agreement (girvinama) Ex.PW17/A;

(iv) That the appellant had suffered a cut injury on the finger of his right hand for which he took treatment from PW1 Dr. Ravinder Amraik on 31.10.94.

(v) That the appellant made a disclosure statement Ex.PW21/A pursuant to which he led the police party to his tenanted room in House No.RZ-228, Patel Garden, Kakrola More, Uttam Nagar, Delhi and from there he got recovered his sport shoes Ex.P-1, pant Ex.P-2 and shirt Ex.P-3, which on serological examination gave positive test for human blood and the blood stains of the shirt and pant of the deceased also gave positive test for human blood of group „B‟ which was the blood group of the deceased.

(vi) The appellant on 15.11.94 made a further disclosure statement Ex.PW19/E pursuant to which he got recovered the lady‟s purse Ex.P-6 containing an envelope Ex.P-7, photographs Ex.P-8 and P-9, letter Ex.P-10 and the application forms Ex.P-11 and P-12 belonging to the deceased from his residence.

17. Before adverting to the submissions put forth on behalf of the

parties, it would be useful to have a look on the law relating to the

circumstantial evidence. It is well-settled that where the presence of

eye witnesses could not be secured by the prosecution, the guilt of the

accused can be proved by leading indirect evidence to prove the facts

which give rise to an inference of guilt of the appellant. However, in

such a case, the indirect or circumstantial evidence should not only be

consistent with the guilt of the accused but should also be inconsistent

with the innocence of the accused.

18. In the matter of Padala Veera Reddy Vs. State of A.P., 1989

Supp (2) SCC 706, the Hon‟ble Supreme Court laid down that when a

case rests upon circumstantial evidence, such evidence must satisfy

the following tests:

"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

19. In Brijlala Pd. Sinha Vs. State of Bihar (1998) 4 Scale 25,

the Hon‟ble Supreme Court reiterated the same approach and

observed thus:

"9. ......In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The law relating to circumstantial evidence no longer remains res integra and it has been held by catena of decision of this court that the circumstances proved should lead to no other inference

except that of the guilt of the accused, so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence it must satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused................"

20. Learned counsel for the appellant has submitted that in the

instant case there is no eye witness to the occurrence. There is no

evidence to the effect that the appellant was seen near the place of

occurrence within a proximate time of occurrence nor there is any

evidence that anyone saw the appellant going to the house of the

deceased or coming out from the said house. Despite of that it is a

mystery as to how the officials of the special staff North District, i.e.

PW22, ASI Ram Kumar and PW21, Constable Mukesh Kumar came to

the conclusion that the appellant Pradeep Gandhi was the person

involved in the crime and apprehended him from his residence, i.e.,

House No.RZ-228, Patel Garden, Uttam Nagar, Delhi. Learned counsel

for the appellant has further submitted that the case of the prosecution

is based mainly upon the circumstantial evidence of motive, i.e.,

robbery - the recovery of the stolen gold chain belonging to the

deceased at the instance of appellant from the shop of PW17 Pradeep

Kumar with whom, as per the witness Pradeep Kumar, he had pawned

the gold chain in consideration of Rs.3200/- and executed a

"girvinama" Ex.PW17/A - recovery of the blood-stained pair of shoes,

pant and shirt of the appellant at his instance from his residence RZ-

228, Patel Garden, on 14.11.94 as also the recovery of the lady‟s purse

Ex.P-6 with its contents at the instance of the appellant from his

residence on 15.11.94 and the evidence pertaining to the cut injury

suffered by the appellant on the finger of his right hand for which took

treatment from PW1 Dr. Ravinder Amraik. Learned counsel for the

appellant submitted that neither of the aforesaid circumstances have

been firmly established. Therefore, the conviction of the appellant on

the basis of aforesaid circumstances is not sustainable. Thus, he has

urged us to give benefit of doubt to the appellant.

21. On the other hand, learned counsel for the State has supported

the impugned judgment and has submitted that the learned trial Judge

has rightly concluded that the prosecution has been able to prove the

above referred circumstances detailed in the impugned judgment,

which circumstances taken as a whole, form a complete chain

indicating towards the guilt of the appellant and thus he has canvassed

for the dismissal of the appeal.

22. We have considered the rival contentions made on behalf of the

parties and perused the evidence on record.

23. On perusal of record, it transpires that till the recording of FIR

No.362/94, P.S. Civil Lines pertaining to murder of Ms. Shanno

Bhandari, the police was not aware about the identity of the

suspect/culprit. As per the testimony of PW22 ASI Ram Kumar and

PW21 Constable Mukesh Kumar, the appellant was apprehended on

14.11.94 and on interrogation he made the disclosure. There is no

evidence on record to show that from the date of registration of FIR till

14.11.94, the investigating agency was able to get any clue about the

involvement of Pradeep Gandhi (appellant) in the murder of the

deceased. Yet PW22 ASI Ram Kumar and PW21 Constable Mukesh

Kumar in their respective evidence have stated that on the relevant

day while they were involved in investigation of this case, they reached

Kakrola More, Uttam Nagar and made inquiries about Pradeep Gandhi

(appellant) and came to know that he had recently started residing at

House No.RZ-228, Patel Garden, Near Uttam Nagar as a tenant. It is a

mystery as to how ASI Ram Kumar and Constable Mukesh Kumar came

to suspect the appellant as the person involved in the murder of Ms.

Shanno Bhandari, though by that time, as per record there was no

reason/basis to suspect the involvement of Pradeep Gandhi in the

crime. This circumstance casts a grave doubt on the fairness of the

investigation and gives rise to an inference that by that time the

investigating agency had decided to book the appellant Pradeep

Gandhi for the murder without any basis.

24. Coming to the motive. As per the case of prosecution, motive for

the murder was robbery and allegedly the appellant, after committing

murder of the deceased, took away her gold chain Ex.P-3 which he

pawned with PW17 Pradeep Kumar for Rs.3200/- on 31.10.94 and

executed a "girvinama" Ex.PW17/A. To link the aforesaid gold chain

Ex.P-3 with the deceased, the prosecution examined PW4 Ram Niwas,

who identified said chain as that belonging to his employer Smt.

Shanno Bhandari and as per his version, he identified the gold chain in

the Police Station 10/12 days after the death of Smt. Shanno Bhandari.

Testimony of PW4, Ram Niwas regarding identification of the gold

chain does not inspire confidence. Ex.PW17/B is the seizure memo of

gold chain wherein it is recorded that in presence of the witnesses

Pradeep Kumar PW17, SI Badlu Khan, PW19 and SI Rishi Ram, PW23

the gold chain Ex.P-3, produced by Pradeep Kumar, was kept in a

matchbox and converted into a sealed packed with seal of BSD and

taken into possession vide the seizure memo. If that is true, PW4 was

not present at the time of recovery of gold chain. This rules out the

possibility of PW4 Ram Niwas having identified the gold chain Ex.P-3 at

the Police Station because there is no evidence on record to show that

after sealing of the gold chain, the packet was ever opened before it

was produced in the court at the time of examination of the witnesses.

Further PW17, Pradeep Kumar, from whose shop the gold chain Ex.P-3

was allegedly recovered, has stated that the appellant executed a

"girvinama" Ex.PW17/A in token of pawning the gold chain with him.

We have perused the original "girvinama" and tried to compare the

purported signatures of the appellant on the "girvinama" with the

signatures of the appellant on his statement under Section 313 Cr.P.C.

and, in our considered view, those signatures do not tally. Therefore, it

is also doubtful that the appellant executed any "girvinama" in favour

of Pradeep Kumar or pawned the gold chain Ex.P-3 with him.

25. Further PW19, SI Badlu Khan, who conducted initial investigation

of this case, has stated that after the inquest proceedings dead body of

the deceased was sent to dead house, Subzi Mandi for post mortem.

Constable Dalbir on return from the dead house brought one gold ring,

a pair of gold tops and a pendent which were removed from the person

of the deceased Shanno Bhandari at Subzi Mandi mortuary and handed

over to him, which were seized vide memo Ex.PW10/A. Presence of

gold ornaments on person of the deceased, particularly the gold tops

and the gold pendent which could easily be removed from the body of

the deceased, negatives the theory that the motive of murder was

robbery. If robbery was the motive of the appellant, he obviously

would have taken away the other gold ornaments instead making good

with the gold chain Ex.P-3 only. In view of the above, we are of the

opinion that the prosecution has not been able to establish the motive

or the recovery of gold chain Ex.P-3 at the instance of the appellant

beyond reasonable doubt.

26. Another circumstance taken against the appellant by the learned

trial Judge is the testimony of PW1 Dr. Ravinder Amraik, who deposed

on the basis of his patient register, which was not properly proved on

record, that the appellant was treated by him for a cut injury on the

little finger of his right hand and he did dressing of the said injury and

charged Rs.8/-. Above evidence does not help the prosecution, firstly

because PW1 was not sure about the identity of the appellant as he

deposed that the accused appeared to be the same person, secondly,

the witness has not given date or month of the treatment, thirdly

according to him he treated the appellant for a cut injury on the little

finger of his right hand, whereas PW8 Dr. Vandana Bagga, who

medically examined the appellant after his arrest has deposed that on

local examination she found a healed scar mark on the right index

finger of the appellant. Dr. Vandana Bagga is silent about having

observed any injury mark on the little finger of the appellant.

Therefore, one cannot say for sure that the person purportedly treated

by Dr. Ravinder Amraik was the appellant. In view of the aforesaid

circumstances, we are of the view that the learned Trial Court has

erred in concluding that PW1 Dr. Ravinder Amraik and PW8 Dr.

Vandana Bagga have established that the appellant suffered a cut

injury on his finger, for which he was treated by PW1, Dr. Ravinder

Amraik.

27. The next circumstance taken against the appellant by the

learned Trial Court is that the appellant led the police party to the shop

of PW18 Harnam Singh and pointed it as the shop from where he

purchased the chhuri Ex.P-5 for Rs.25/-. Though PW18 Harnam Singh

has stated to that effect in his evidence, yet we find it difficult to rely

upon his testimony because the pointing out memo Ex.PW19/F does

not bear his signatures. Further, perusal of the seizure memo

Ex.PW19/A reveals that the chhuri Ex.P-5, which was recovered at the

spot of occurrence was seized on the same day after converting it into

a sealed packet. There is no evidence on record that aforesaid chhuri

was shown to PW18 Harnam Singh for identification during

investigation by the police or any identification proceedings in this

regard were conducted. From the above, it is apparent that after

October 1994, if at all PW18 Harnam Singh sold a chhuri to the

appellant, he saw the chhuri Ex.P-5 for the first time on the day of his

examination as a witness on 05.08.96. It is highly improbable that he

could have definitely identified the chhuri Ex.P-5 after a lapse of about

two years. Therefore, we do not consider it safe to rely upon the

testimony of PW18 Harnam Singh regarding the identity of the chhuri

or even his having sold the chhuri Ex.P-5 to the appellant.

28. The other two circumstances relied upon by the prosecution are

the recovery of blood-stained shoes, pant and shirt Exhibits P-1 to P-3

at the instance of the appellant on 14.11.94 from his residential room

and also the recovery of lady‟s purse Ex.P-6 containing the envelope

Ex.P-7, photographs Exhibits P-8 and P-9, letter Ex. P-10 and

application forms Exhibits P-11 and P-12 belonging to the deceased

from the residence of the appellant at his instance on 15.11.94. The

only independent witness to aforesaid two recoveries as per the case

of prosecution is PW7 Amar Singh, who has not supported the case of

the prosecution. According to him, no recovery was effected in his

presence and he was made to sign some papers by the police on the

pretext that they had recovered blood-stained pair of shoes, pant and

a shirt from the residence of the appellant. This witness has also not

supported the case of prosecution regarding the recovery of lady‟s

purse Ex.P-6 and the articles contained therein. Since the independent

witness has failed to support the recovery of incriminating articles at

the instance of the appellant, we do not consider it safe to rely upon

the testimony of police witnesses regarding recovery of incriminating

articles, particularly when it remains a mystery as to on what basis the

appellant was apprehended in the first instance by the officials of

special staff (PW21 and PW22) on 14.11.94.

29. The result of above discussion is that the prosecution has failed

to firmly establish the incriminating circumstances to form a complete

chain pointing towards the hypothesis of guilt of the appellant. Thus,

we find it difficult to sustain the conviction of the appellant under

Section 302 IPC. We accordingly set aside the impugned judgment and

acquit the appellant, giving him benefit of doubt.

30. The appellant is on bail. His bail bond and surety bond are

discharged.

AJIT BHARIHOKE, J.

JANUARY 18, 2010                        A.K. SIKRI, J.
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