Naval Kishore vs State
2012 Latest Caselaw 1504 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 2nd February, 2012
                               DECIDED ON : 5th March, 2012

+                        CRL.A No.188/1998

       NAVAL KISHORE                              ....Appellant.
                Through: Mr.Vijay Sansanwal, Advocate.

                               versus

       STATE                                      ...Respondent.
                    Through: Ms.Richa Kapoor, APP for the State with
                             Mr.Ritesh Bahri and Mr.Randeep Kumar,
                             Advocates.

        CORAM:
        MR. JUSTICE S. RAVINDRA BHAT
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Accused Naval Kishore (appellant herein) and Lalit Narain @ Raju (since acquitted) were arrested and sent to the court for trial for committing offences punishable under Section 302/363/364/34 IPC. The learned Additional Sessions Judge by impugned judgment dated 05.02.1998 convicted the accused Naval Kishore for committing offence punishable under Section 363/302 IPC and sentenced him to undergo imprisonment for life with fine of `1,000/- u/S 302 IPC. Co-accused Lalit Narain @ Raju was acquitted of all the charges. Accused-Naval Kishore has preferred the appeal against the impugned judgment.

2. Criminal law was set into motion at around 1:45 A.M. on the night intervening 21/22.2.1995 when DD No. 18/A (Ex.PW-1/A) was recorded at PS Mansarover Park, East Delhi by Head Constable Om Prakash on the information given by B.D.Sharma that his son Dinesh Kumar @ Debu aged 10 years on return from the school at about 2:00 P.M. had gone out to play with children at 3:00 P.M. but did not return thereafter. Efforts were made to trace the child but in vain. On 22.02.1995 SI Harpal Singh recorded statement of B.D.Sharma where he suspected the kidnapping of his son. He made an endorsement on the statement and sent rukka at 5:00 P.M. to register the case under Section 363 IPC. Attempts to find out clues about the missing child remained futile. The IO recorded statements of the concerned witnesses conversant with the facts.

3. On 24.2.1995 at about 12:30 noon on getting telephonic information from an unknown person about the dead body of a child lying at a plot at Kattu Farm, near DDA flats, DD No.8/A (Ex.PW-23/B) was recorded. The investigation was assigned to SI Harpal Singh who along with constable Onkar Singh (PW-12) reached plot No.71 D, Kattu Farm, near DDA Flats and found the dead body of a child lying at the corner of the half portion of the plot which had already been sold by B.D.Sharma to someone. B.D.Sharma and Narender Kumar identified the dead body as that of Dinesh @ Debu. The IO informed senior officers and requisitioned the dog squad and crime team including the photographer. During the course of investigation, he conducted inquest proceedings; took the photographs, seized the belt, shirt, pant and one chappal of the left foot lying at the spot and prepared necessary seizure memos. He also

seized a blood stained lock with which the room, where accused Naval Kishore resided, was locked and it was opened with a duplicate key provided by the deceased's father.

4. During the course of investigation, post-mortem of the dead body was conducted. After the post-mortem, the body was released to the deceased's father. After the recovery of dead body on 24.02.1995, complainant-B.D.Sharma suspected the hand of the accused in the crime and alleged that on the day, the child went missing, he was last seen by his family members at about 3:00 P.M. with the accused Naval Kishore when he went to his house and took the deceased in the pretext of teaching him cycling. Since the father of the deceased had indicted the accused as the perpetrator of crime, the police set out to apprehend them. On 26.02.1995, on receiving the secret information, the accused Naval Kishore was arrested at Railway Station, Shahdara. He was interrogated and pursuant to the disclosure statement, led the police to his room B-71, Kattu Farm, Uttam Nagar, Delhi; took up a spade lying there; dug the earth with that spade and recovered the deceased's chappal of right foot underneath it. It was identified by the complainant to be that of his deceased son.

5. On 02.03.1995 accused Lalit Narain @ Raju was produced by his father in the Police Station and was arrested. IO recorded his disclosure statement.

6. After conclusion of the investigations, both Naval Kishore and Lalit Narain were charged with committing the said offences. While rejecting Lalit Narain's bail application on 09.06.1995, the learned Additional Sessions Judge directed the concerned Magistrate to take note

of the 'order' and give directions (if considered necessary) to the police to investigate Lalit Narain's parents' role in the incident and he by an order dated 27.07.1995 issued various directions to the Crime Branch to carry out further investigations under Section 156 and 173(8) of Cr.P.C. Investigation was taken over by SI Badal Singh and he recorded supplementary statements of some witnesses and submitted supplementary charge-sheet under Section 173 Cr.P.C. in the Court.

7. To bring home the charge, the prosecution in all examined 25 witnesses. Statements of the accused were recorded under Section 313 Cr.P.C. to afford them an opportunity to explain the incriminating circumstances appearing against them. Both the accused denied their hand in the incident and pleaded that they were falsely implicated in this case. Accused examined DW-1 (Suraj Pal) and DW-2 (Smt.Manju) in their defence.

8. After appreciation of the evidence and after considering contentions of the parties, the trial court convicted the accused Naval Kishore for committing the offences under Section 363/302 IPC and acquitted the accused Lalit Narain.

9. Counsel for the appellant assailed findings of the trial court urging that they are based on conjectures and surmises. It is urged that there was no material before the Trial Court to conclude the appellant guilty. There were no allegations of demand for ransom after the alleged kidnapping of the child. The accused did not abscond after disappearance of the child and joined the complainant to find him. Vital discrepancies in the statements of prosecution's witnesses were ignored. The testimonies of PW-13 and PW-17 were not believed and no reliance was placed by the

Trial Court. Nothing incriminating was recovered from the possession of the appellant. The prosecution witnesses gave contradictory versions on the 'last seen' circumstance. The room where the accused allegedly resided was not in his exclusive possession.

10. On the other hand, the learned APP justified findings of the trial court and urged that the dead body of the deceased was recovered from near the accused's room. Initially, the complainant did not suspect the accused being his relative, therefore he misled him and joined the search knowing that he was himself the culprit. The accused failed to explain why he went missing after recovery of the dead body. Counsel emphasized that the accused had made an extra judicial confession about the crime before PWs 13 and 17. The learned APP argued that the impugned judgment does not disclose any error or compelling reasons for this Court to interfere with the trial court's findings.

11. Before we proceed to determine the case on merits, it is desirable to highlight that the entire prosecution case rests on circumstantial evidence. Homicidal death of the child is not under challenge. The State did not prefer an appeal against the acquittal of Lalit Narain @ Raju.

12. The standard of proof required for convicting a person on circumstantial evidence is now well established by a series of decisions of Supreme Court. According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of guilt are to be drawn not only

have to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.

13. Having regard to these principles enunciated with regard to the proof of guilt by circumstantial evidence, we shall now examine the various circumstances said to be appearing against the appellant.

(A) LAST SEEN

14. The prosecution heavily relied upon the circumstance of 'last seen' and examined family members of the deceased to prove this circumstance. After evaluation of the evidence, we find that the conclusion of the Trial Court on that aspect cannot be justified. In the missing persons report lodged on the night intervening 21/22.02.1995 by DD No.18/A (Ex.PW1/A) the complainant did not suspect the accused for committing the crime. In the report, nothing was disclosed if the accused was last seen with the deceased on 21.02.1995 at any time before his disappearance. Omission of this vital fact in the earliest report has not been explained. Again B.D.Sharma did not name the appellant as suspect in his statement Ex.PW1/A which formed the basis for sending rukka (Ex.PW-23/A) at 5:00 P.M. Complainant's case from the inception was that the child had gone outside to play with other children at 3:00 P.M. However during trial, the prosecution witnesses deviated from the earlier version given to the police and introduced the story of 'last seen' that the

accused had taken the child from the house in the pretext of teaching him cycling. This discrepancy remained unexplained.

15. There are inconsistencies and discrepancies in the statements of prosecution witnesses as to how and under what circumstances, the child was 'last seen' with the accused. PW-3 (Shashi) stated that on 21.02.1995 at about 2:00 P.M. after Dinesh and Mangesh took their meals after returning from school, the accused went to their house; showed the key of the cycle to Dinesh and took him to train him in cycling. PW-1- B.D.Sharma (who was away to his village on 21.02.1995, and returned at about 11:00 P.M.) introduced a new version that his sister Shashi (PW-3) had told him that both the accused (Naval Kishore and Lalit Narain @ Raju) had taken the child with them in the pretext of teaching him to cycle. Apparently PW-1 contradicted PW-3 (Shashi) where she claimed that only the appellant had taken the child with him. If the version of PW- 3 (Shashi) is correct, she also failed to explain why she did not inform the police about this vital circumstance till the recovery of dead body on 24.02.1995. She did not explain on what basis complainant had lodged 'missing persons report' alleging that the child had gone to play outside with children.

16. PW-2 (Usha Sharma) for the first time in her statement before the Court came up with the plea that she had seen Naval Kishore holding the cycle in his hand; Lalit Narain @ Raju sitting on the pillion and her brother Debu @ Dinesh sitting on the rod of the cycle taking away him towards Mandoli Road. Testimony of PW-2 has not been corroborated by PW-1 or PW-3 as they never alleged that the child was seen with both the accused. The witness was confronted with statement

Mark DA made to the police where she had not narrated all these facts. She denied recording of her statement mark DB by SI Harpal Singh on 03.03.1995. The improvements in the deposition were ignored by Trial Court. The testimony of this witness was thus not worthy of credence.

17. Similarly, PW-5 (Narender Sharma) and PW-10 (Baby Mangesh) made vital improvements in their depositions on this aspect only to implicate the accused. Their statements under Section 161 Cr.P.C. were recorded after considerable delay of 5/6 months pursuant to the directions given by the learned Metropolitan Magistrate. In their earlier statements recorded under Section 161 Cr.P.C. by SI Harpal Singh, they did not suspect hand of the accused in the crime.

18. The prosecution thus failed to collect cogent evidence to establish the circumstance of last seen.

19. In the case of State of Goa v.Sanjay Thakran (2007) 3 SCC 755 the Supreme Court noted general principles with reference to the principles of last seen together in Bodhraj v.State of J&K (2002) 8 SCC 45 as under:

"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

32. In Ramreddy Rajesh Khanna Reddy (2006) 10 SCC 172 this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.

34. ..... Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."

(B) MOTIVE AND EXTRA-JUDICIAL CONFESSION

20. Normally, there is a motive behind every criminal act which is why the why investigating agency and the Court, while examining complicity of an accused try to ascertain as to what was the motive on his part, to commit the crime. In a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes great importance. The investigating agency is expected to ascertain as far as possible what was the immediate impelling motive on the part of the accused, which led him to commit the crime in question.

21. In the present case, the undoubted facts are that the accused were acquainted with the complainant since long. They were on visiting terms at the residence of the complainant. Accused Naval Kishre used to reside in a room owned by the complainant at the Katto farm house. He is

also a distant relative. According to the complainant's testimony, there was no enmity or dispute over money with the accused. No ransom demand was made by the accused after disappearance of the child. Complainant did not suspect accused's hand in the kidnapping of the child. The prosecution thus failed to prove motive of the accused to murder the innocent child with whom he had no animosity. Admittedly, the accused joined the family members of the missing child to search for him till recovery of dead body. No abnormal behavior of the accused was noticed during that period to suspect him. In the absence of any ulterior motive, the accused having close association with the family members of the child is not expected to commit the heinous offence.

22. During the course of investigation, no incriminating material emerged against Lalit Narain. The Complainant, unsatisfied with the investigation suspected involvement of his parents in the crime. This led learned ASJ to direct the concerned Metropolitan Magistrate to issue certain directions for further investigation. SI Badal Singh after taking over investigation recorded statements of PW-13 (Rajender Prashad) and PW-17 (Sham Babu) who disclosed about making of extra judicial confession by the accused for committing the murder of the child. The Trial Court discussed their deposition in depth in the impugned judgment and rejected their testimony:

"The Ld.counsel for the accused has further submitted that PW17 Sham Babu and PW13 Rajender Parshad who are witnesses to the confessional statement by accused Naval Kishore have been falsely introduced later on in order to falsely implicate the accused persons and their names did not figure in the list of the witnesses of the challan filed by S.I.Harpal Singh in the court. He has further submitted that the complainant B.D. Sharma had filed a petition u/S

482 Cr.P.C. before the Hon‟ble High Court of Delhi copy of which is Ex.CW1/A and in the said petition also the names of these witnesses do not find mention at all. Rather in the said petition, complainant has mentioned that accused Naval Kishore had made a confessional statement before Pradhan of the village Pihura U.P. namely Shri. N.K.Sharma but it is nowhere mentioned in the entire petition that this accused Naval Kishore had made any confessional statement before witnesses Rajender Parshad PW13 and Sham Babu PW17. However, the prosecution has not produced the Pradhan of the village namely Sh.N.K.Sharma to prove that the accused made any confessional statement before him regarding kidnapping and murder of deceased Dinesh @ Debu. The Ld. Counsel for the accused has further submitted that there are very serious contradictions in the statements of these two witnesses and the statement of B.D.Sharma complainant. He has pointed that PW1 B.D.Sharma has stated that the accused Naval Kishore was arrested on 26.2.95 by the police and he had visited the P.S. alongwith Rajender Parshad and Sham Babu on 26.2.95 while these two witnesses PW13 Rajender Parshad and PW17 Sham Babu have stated before the court that the accused Naval Kishore was arrested by the police on 25.2.95 and they both alongwith B.D.Sharma went to the P.S. where accused Naval Koshore made a confessional statement before them. He has further pointed out that in the petition filed by B.D.Sharma before the Hon‟ble High Court of Delhi, he has mentioned that the accused Naval Kishore was arrested by Delhi Police Party on the night intervening 24/25.2.95 from his village Pihura Distt.Mathura around midnight. So these are very material contradictions which have appeared in the statements of these three witnesses. He has further pointed out that PW1 B.D.Sharma has stated before the court that he had taken the dead body of his son Dinesh @ Debu to his village Pihura for last rites on 25.2.95 and he was not in Delhi on 25.2.95 as he had gone to his village with dead body for last rites while these two witnesses PW13 Rajender Parshad and PW17 Sham Babu have stated that they had gone to the P.S. alongwith PW1 B.D.Sharma on 25.2.95 where accused Naval Koshore had made a confessional statement before them. He has further submitted that the statement of PW13 Rajender Parshad and PW17 Sham Babu are not trust worthy because had the accused Naval Kishore had made any disclosure

statement before them, their statements could have been recorded by the I.O. S.I. Harpal Singh in this regard but no such statements were recorded by the I.O. and the I.O. PW23 S.I. Harpal Singh has categorically stated that both these witnesses PW13 Rajender Parshad and PW17 Sham Babu have been meeting him alongwith B.D.Sharma but they never disclosed that accused Naval Kishore had made any confessional statement before them nor they had made any such statement before him and for this reason he had not recorded their statements. He has further submitted that if accused Naval Kishore had made any such statement before these two witnesses the names of these two witnesses must have come in the petition which was filed by B.D.Sharma before the Hon‟ble High Court on 3.5.95 which shows that upto 3.5.95 the story of accused Naval Kishore having made disclosure statement before these two witnesses had not been disclosed even in the petition which was filed by B.D.Sharma complainant before the Hon‟ble High Court. So the story of confessional statement made by accused Naval Kishore before these two witnesses have been introduced later on by the prosecution in order to falsely implicate the accused Lalit Narain and Naval Kishore. The Ld.counsel for the accused has further pointed out that both these witnesses have stated that they have gone to sleep at Katto Farm on the night intervening 22/23.2.95 where both the accused persons had met them and they appeared to be nervous and on their querry the accused persons told them that they were searching for Debu and thereafter both the accused persons went away from there. This version does not find any corroboration from the evidence of PW1 B.D.Sharma. PW1 B.D.Sharma has not told a single word about these two witnesses having met the accused persons at Katto Farm nor PW1 B.D.Sharma has stated before the court that these two witnesses have gone to sleep at shop in Katto Farm as alleged by these two witnesses. So both these witnesses are not trustworthy and reliable and their evidence should be rejected out right and it should be held that they did not go to sleep at Katto Farm nor they met both the accused persons. It should also be held that the accused Naval Kishore never made any confessional statement before these two witnesses. I have gone through the statements of these two witnesses PW14 Rajender Parshad and PW17 Sham Babu and both these witnesses have stated before the court that on 25.2.95 police

officials came to summon B.D.Sharma at his flat and they stated that accused Naval Kishore was arrested by the police. Thereupon they alongwith B.D.Sharma and Ramji Lal went to P.S. M.S.Park where they found accused Naval Kishore present in the P.S. and on their enquiry from the accused, he made a confessional statement before them. I have also gone through the statement of PW1 B.D.Sharma who has stated before the court that he had gone to P.S.alongwith these two witnesses and Ramji Lal on 26.2.95. He has further stated that on 25.2.95 he had collected the dead body of his son and had taken the dead body of this son to his village for last rites. So the statement of these two witnesses that they went to the P.S. alongwith B.D.Sharma on 25.2.95 stands contradicted because on 25.2.95 PW1 B.D.Sharma was not present in Delhi rather he had gone to his village to perform the last rites of this son Debu. I have also gone through the petition Ex.CW1/A which was filed by PW1 B.D.Sharma before Hon‟ble High Court U/s 482 Cr.P.C. and in the said petition the names of these two witnesses are not at all mentioned not it is mentioned in this petition that accused Naval Kishore made any confessional statement before these two witnesses PW13 Rajender Parshad and PW17 Sham Babu. This petition is dt.3.5.95. In this petition it is mentioned that accused Naval Kishore had made a confessional statement before pradhan of the village Pihura whose name is Sh.N.K.Sharma and confession was made by the accused in the village itself when this accused had visited the village pithura. It is also mentioned in this petition that the accused was arrested on the night intervening 24/25.2.95 from village Pihura Distt. Mathura U.P. by Delhi Police party at around midnight. After going through this petition it has become clear that upto 3.5.95 the story of the accused Naval Kishore having made confessional statement in the presence of these two witnesses at the P.S.M.S.Park had not being inexistence. Rather the story which was in existence as per this petition was that the accused Naval Kishore had made a confession before Pradhan of village Pihura whose name was Sh.N.K.Sharma so the story put forward by these two witnesses that the accused Naval Kishore @ Gullu had made a confession before these two witnesses at the P.S.M.S.Park stands contradictory with the story which has been mentioned in this petition Ex.CW1/A by PW1 B.D.Sharma. It has also come on record that PW1 B.D.Sharma has stated that accused

Naval Kishore was arrested on 26.2.95 before the court while in this petition Ex.CW1/A it is mentioned that the accused Naval Kishore was arrested from his village on the night intervening 24/25.2.95 while these two witnesses have stated that accused Naval Kishore was arrested on 25.2.95. It has also come on record in the statement of PW1 B.D.Sharma that he was not present in Delhi on 25.2.95 as he had gone to perform the last rites of his son in the village Pihura. So this stand is contradictory with the statement of these two witnesses PW13 Rajender Parshad and PW17 Sham Babu that they had gone to P.S.M.S.Park alongwith B.D.Sharma on 25.2.95. These contradictions pointed out by the Ld.counsel for the accused are very serious contradictions and it appears that the story that accused Naval Kishore had made a confessional statement before these two witnesses PW13 Rajender Pd. and PW17 Sham Babu has been introduced later on by Prosh and this story was not in existence even upto 3.5.95 when this petition was filed. I, therefore, hold that both these witnesses PW13 Rajender Pd. And PW17 Sham Babu have been introduced later on by the prosecution and I further hold that accused Naval Kishore did not make any confessional statement before these two witnesses at the P.S.M.S.Park. Even it does not stand to reason that the accused Naval Kishore has made any confessional statement before these two witnesses at the P.S.M.S.Park as stated by these two witnesses. I, therefore, hold that no such confessional statement was made by accused Naval Kishore before PW13 Rajender Pd. and PW17 Sham Babu at the P.S.M.S.park and the contention of the Ld.counsel for the accused in this regard carries much weight and I further hold that the evidence of PW13 Rajender Pd. and PW17 Sham Babu is totally unreliable and untrustworthy and the evidence of these two witnesses is therefore rejected.

23. The prosecution thus failed to establish the circumstance of motive and extra judicial confession made by the accused.

(C) ABSCONDENCE

24. The trial court found the circumstance of abscondence as incriminating. However, an examination of the record reveals that soon

after disappearance of the child the accused were found in their respective houses and did not abscond. The admitted case of the prosecution is that both the accused joined the family members of the child in his search till the recovery of the dead body. According to PW-3 (Shashi) when Dinesh (the deceased child) did not return, she sent PW Narender at the houses of both the accused but the child was not there. PW-5 (Narender Sharma) testified that when he visited the houses of both the accused on the date of disappearance of the child, they were found in their houses and they expressed their ignorance regarding whereabouts of the child. Thus no inference can be drawn that the accused had absconded. Inconsistent versions had been given by the witnesses when and from where the accused were arrested in this case. PWs 13 and 17 whose testimonies were rejected as unreliable testified that the appellant was arrested from his village Pihura (U.P.) whereas the prosecution's case is that he was arrested at Railway Station, Shahdara on 26.02.1995. There was no occasion for the accused to abscond as no accusing figure was pointed against him when he joined the complainant to search the child.

25. It is a settled legal preposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment S.K.Yusuf Vs. State of West Bengal 2011 (6) LRC 85 (SC). Therefore, mere abscondence of the appellant could not be taken as a circumstance which gives rise to draw an adverse inference against him.

(D) RECOVERY OF ARTICLES

26. Next circumstance relied on by the prosecution against the accused is alleged recovery of the incriminating articles at his instance from his room. Undoubtedly, the body of the child was recovered on 24.02.1995 prior to the accused's arrest. It was lying in a corner of the plot which was not in possession of the accused, who used to reside in a room in the other portion of the plot owned by the complainant; the said room was not in his exclusive possession. As per prosecution on 24.02.1995 itself, lock of the said room was opened with a duplicate key provided by the complainant. Nothing incriminating was recovered by the police at that time, from the said room. Only on 26.02.1995 after arrest of the accused, pursuant to his disclosure statement chappal Ex.P-4 and spade Ex.P-8 were allegedly recovered from the said room. The recovery of both these articles, in our view, is inconsequential. The spade Ex.P-8 lying in the room on 24.02.1995 was not seized as an incriminating material. Recovery of chappal Ex.P-4 after digging the earth on 26.02.1995 offers no clue of occurrence as no blood was detected on it. The 'chappal' had no distinctive mark for its identification. It was an ordinary chappal used by the public at large. Police did not get 'the chappal' identified in TIP proceedings. It is unbelievable that the accused, after committing the murder, would retain the chappal in the pit after throwing the dead body on the plot

27. The room was easily accessible to the complainant prior to his arrest. Even after searching it on 24.02.1995 in the absence of the accused, nothing incriminating was found therein. Hence no inference

can be drawn against the accused for the alleged recovery of the chappal and spade at his instance.

(E) MISREPRESENTATION

28. The findings of the trial court that the accused kept misrepresenting the complainant and his family members that he had not kidnapped the child are based upon surmises and conjectures. From the inception, defence of the accused was that he was not involved in the incident. This circumstance, thus, cannot be considered incriminating against the accused. Undoubtedly the defence of the accused to be residing at Lonni Giri Market was rejected for cogent reasons but that circumstance is not enough to establish the guilt of the accused. In the case of Ram Chander @ Ganju & Anr.vs.State 2011 III AD (CRL) (DHC) 419 this Court observed as under:

"The proposition urged by the learned counsel for the State that it was open to the appellants to have given an explanation in the course of their statements under Section 313 Cr.P.C., is clearly answered by the observations of the Supreme Court which have been quoted above in the case of Kulvinder Singh and Another (supra). It is well established that the prosecution is to make out its case beyond reasonable doubt and cannot derive any strength from the weakness of the defence put up by the accused. A false defence, as pointed out by the Supreme Court, may be called into aid only to lend assurance to the court and, that too, where various links in the chain of circumstantial evidence are in themselves complete. The weakness of the defence cannot, by itself, form a link of the chain, but can only lend support to the other links which in themselves form a complete chain of circumstantial evidence, pointing unerringly towards the guilt of the accused. In the present case, the submission of the learned counsel for the State that the fact that the appellants have not given any explanation ought to be regarded as a link in the chain of circumstances, cannot be accepted in this

backdrop. Even if it were to be regarded as a link, it would only remain as a „link‟ in an „incomplete chain‟.

(F) MISCELLENEOUS

29. The prosecution did not rely on any other cogent circumstance to establish the guilt of the accused beyond reasonable doubt. Futile attempts were made by the complainant and his witnesses PWs-13 and 17 to implicate Lalit Narain @ Raju and his parents for hatching conspiracy with the appellant to murder the child. The Trial Court did not find any evidence against accused Lalit Narain and acquitted him of the charge on the same set of evidence. A crude attempt was made to prove the charges against the accused relying on his confessional letter Ex.PW24/B. It was alleged that confessional letter, inculpatory in nature, was written by the accused while in custody at Tihar Jail and he confessed committing the crime in conspiracy with Lalit Narain and his parent. This document was taken on record and during inquiry it was found that the accused was not the author of the confessional letter Ex.PW24/B. Dr.A.K.Gupta (PW-15) (handwriting expert) proved his FSL report Ex.PW15/A and was of the opinion that the person who wrote the specimen hand writing and signatures marked S-1 to S-7 did not write the red enclosed writings and signatures Mark Q-1/1, Q1/2, Q-1/3. It was urged that this confessional letter was manipulated by the complainant to buttress his case.

30. We have examined the contents of this letter Ex.PW24/B which are inculpatory in nature. It is extremely difficult to comprehend that the accused would write such a letter voluntarily. No such confession was made by the accused before the Metropolitan Magistrate. No reliance

can be placed on this confessional letter. In our view the Trial Courts should refrain from taking such inculpatory documents on judicial record without ascertaining their genuine origin and authenticity etc. (G) CONCLUSION

31. In the light of the above discussion, we are of the considered view that the circumstances relied upon by the prosecution were not sufficient to convict the accused. In the case of Jaharlal Das v.State of Orissa, 1991 (3) SCC 27 the Supreme Court observed as under:

"..... the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions."

32. It would also be useful to extract the observations in this regard, in Tanviben Pankajkumar Divetia v.State of Gujrat, (1997) 7 SCC 156:

"We may indicate here that more the suspicious circumstances, more care and caution is required to be taken otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. It appears to us that in this case, the decision of the Court in convicting the appellant has been the result of the suspicious circumstances entering the adjudicating thought process of the Court."

33. Thus none of the pieces of evidence relied on as incriminating, by the Trial Court, can be treated as incriminating pieces of circumstantial evidence against the accused. Though the offence is

gruesome and revolts the human conscience yet an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused.

34. For the above reasons the impugned judgment cannot be sustained and is accordingly set aside. The appeal is allowed and the appellant is acquitted. The bail bond and surety bond furnished in this case are hereby discharged.

(S.P.GARG) JUDGE

(S. RAVINDRA BHAT) JUDGE March 05, 2012 sa