Kapoor Singh @ Kale vs State (Nct Of Delhi)
2014 Latest Caselaw 1477 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CRL.A. 510/1999
      KAPOOR SINGH @ KALE                                    ..... Appellant
                           Through:      Mr. Anurag Jain, Advocate
                           Versus
      STATE (NCT OF DELHI)                                  ..... Respondent
                    Through:             Mr.Sunil Sharma, learned
                                         Additional Public Prosecutor for
                                         the State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                      ORDER

%                      20.03.2014
KAILASH GAMBHIR, J. (Oral)

1. Challenge in the present appeal is the impugned judgment and

order on sentence dated 18th August 1999 and 19th August 1999,

respectively, passed by the learned Additional Sessions Judge

whereby the appellant has been held guilty for committing an offence

punishable under Section 302 IPC and sentenced to undergo life

imprisonment together with fine of Rs. 1,000/- and in default of

payment of fine, the appellant was directed to further undergo RI for a

period of three months.

2. The case of the prosecution in brief, can be summarized as under:-

"That a few days before the incident Jaibir Singh had sold two buffaloes to the accused for Rs. 28000/- . The accused was avoiding to make payment. On 21st October, 1995 both the deceased and the accused came to Nevada to supply milk at Chaudhary dairy. Both of them took liquour with PW-5 Sahab Singh, the proprietor of the diary. They stayed at the dairy till 9.00.p.m. and then they left together on a two wheeler scooter bearing no. DIH 165 which they had taken from PW-7 Pooran Singh, an employee of Sahab Singh. On the same night the accused met PW Satish Kumar near Bakar Garh Mor and told him that while he was coming with Jaibir Singh, some persons had attacked him with lathies and jellies. He also told that Jaibir Singh was lying injured near the road. PW-2 Satish Kumar saw Jaibir Singh was lying in injured condition on the pavement. Then he went to village Luksar and informed the family of Jaibir Singh. PW3 Narender and PW-4 Jasbir Singh both the brothers of Jaibir Singh rushed at the spot in a tempo. They saw their brother lying there but accused was not present. Narender and Jasbir Singh took their brother to the village. Next morning his dead body was brought to P.S. Jafarpur Kalan by his father Risal Singh. Risal Singh made a report Ex. PW 3/A and thereupon the case was registered. Kapoor Singh was arrested on

24.10.1995. On interrogation he got recovered the scooter which was seized vide memo Ex. PW 11 / A. His shirt and pant were also seized vide memo Ex. PW11/ B. He further disclosed that he had thrown the weapon of offence in the fields, therefore the weapon could not get recovered. The clothes of the accused and the deceased were sent to FSL."

3. To support its case, the prosecution had examined 17 witnesses.

After the evidence of the prosecution was recorded, the statement of the

accused under Section 313 Cr. P.C. was recorded wherein he pleaded his

innocence and a case of false implication. The accused did not produce

any witness in support of defense evidence.

4. Assailing the impugned judgment and order on sentence,

Mr.Anurag Jain, counsel appearing for the appellant vehemently

contended that the learned trial court has failed to appreciate the well

established legal principles for convicting an accused person based on

circumstantial evidence. Learned counsel submitted that the prosecution

case is not based on ocular evidence of any eye witness but only on

circumstantial evidence and the prosecution had miserably failed to

complete the chain of circumstantial evidence which could have

unerringly and cumulatively established the guilt of the accused

absolutely incompatible with his innocence.

5. Learned counsel for the appellant submitted that none of the private

witnesses have supported the case of the prosecution as either they turned

hostile or were declared hostile by the learned trial court. Learned counsel

further submitted that PW-2 - Satish Kumar who was a star witness of

the prosecution made a categorical statement in his examination-in-chief

that he will not be able to identify the person who stopped the

Ambassador Car in which he was travelling and was told about Jaibir

(deceased) lying in an injured condition on the side of the road of kacha

pavement. He further submitted that as per the prosecution case, PW-2

Satish Kumar identified the injured person as Jaibir @ Kala and it was

PW-2 alone, who had informed the father of the injured lying at the said

spot. Learned counsel further contended that it was PW-2 alone who

could identify the accused person who was present with the injured

person at the spot of the crime but not only the fact that he showed his

helplessness in identifying the accused person as per his deposition in

examination-in-chief, but his denial to identify the accused Kapoor Singh

present in court being the person who signaled the car to stop, during his

cross-examination is a clear pointer to the fact that the appellant has been

falsely implicated in the present case. Learned counsel for the appellant

pointed out towards the deposition of PW-5 - Saheb Singh who also did

not support the case of the prosecution of the accused accompanying the

deceased on a two wheeler scooter from his milk dairy. Inviting attention

of this court to the deposition of PW-5 in his examination-in-chief,

where he had deposed that Jaibir Singh and accused Kapoor Singh both

waited at their shop for their tempos in order to return and both of them

left in their respective tempos after they had consumed liquor. Learned

counsel further submitted that even PW-7 Pooran Singh was also not a

witness to the last seen evidence as in his examination-in-chief he

deposed that he gave his scooter to Jaibir and accused Kapoor Singh and

except this he did not know anything in this regard. Learned counsel for

the appellant further argued that so far as PW-3 and PW-4 who were

brothers of the deceased, are concerned, the same are not the witness of

last seen evidence but have supported the case of the prosecution to the

extent of their receiving an information from Satish about the victim

lying in an injured condition at the spot of the crime besides introducing

the story of accused of purchasing two buffalos from the victim Jaibir for

a sum of Rs.28, 000/- on credit and non-payment of the said money to

the victim. Learned counsel for the appellant further submitted that the

motive theory propounded by the prosecution stands on a very weak

footing as no documentary evidence was placed on record to show any

such transaction of two buffalos from the accused to have taken place nor

any evidence has been adduced to the effect that there was any kind of

fight or quarrel or bitterness crept in to provoke the appellant to carry out

the murder of the victim - Jaibir Singh.

6. Learned counsel for the appellant also submitted that in a case

based on circumstantial evidence, motive is of utmost importance but in

the facts of the present case, the prosecution could not prove any such

motive on the part of the accused which could propel him to commit such

a heinous crime of eliminating his own friend. Learned counsel for the

appellant further submitted that it is a settled legal position that in a case

of murder or in such serious offence, the degree of proof to inculpate

any accused persons must be of un-impeachable character and free from

any kind of suspicion and doubts.

7. Based on the above submissions, learned counsel for the appellant

strongly contended that the learned trial court has not properly

appreciated the legal position to convict the accused person based on

circumstantial evidence and has convicted the appellant on mere

assumptions and probabilities. Learned counsel for the appellant thus

urged for setting aside the impugned judgment and order on sentence

passed by the learned trial court directing the same to be as a result of

illegal and perverse findings.

8. In support of his arguments, counsel for the appellant placed

reliance on the following judgments:-

      a)     Krishna Mochi and Others vs. State of Bihar,
             (2002) 6 SCC 81;
      b)     State of U.P. vs. Krishna Gopal and Another,
             (1988) 4 SCC 302;
      c)     State of Gujarat vs. Anirudhsing and Another,
             (1997) 6 SCC 514;
      d)     Radha Mohan Singh alias Lal Saheb and Others
             vs. State of U.P., (2006) 2 SCC 450;
      e)     Shivaji Sahebrao Bobade and another vs. State of
             Maharashtra, AIR 1973 SC 2622 (1).

9. Per contra, Mr.Sunil Sharma, learned Additional Public Prosecutor

for the State finds no fault with the reasoning given by the learned trial

court in convicting the appellant for an offence punishable under Section

302 of IPC and awarding the sentence of imprisonment of life. Learned

APP for the State further submitted that despite the fact that the material

witnesses introduced by the prosecution have turned hostile, but yet the

learned trial court could elicit the truth from the depositions to find the

clear involvement of the present appellant in the commission of the said

crime. Learned counsel for the appellant further submitted that there was

a clear motive on the part of the appellant to carry out the murder of the

victim Jaibir Singh as after having purchased two buffaloes from him, he

refused to make the payment of Rs.28,000/- to him and this motive on

the part of the appellant was duly reflected in the testimonies of PW-3

and PW-4 - brothers of the deceased. Learned APP also submitted that it

is an admitted fact that both the accused and the deceased were in the

same business of supplying milk and both of them had gone to the dairy

of PW-5 - Saheb Singh where they had consumed liquor and thereafter,

left on a two wheeler scooter which was provided by Puran Singh, an

employee of Saheb Singh. Learned APP for the State also submitted that

in the MLC of the deceased, presence of liquor to the extent of 300 ml

was found which further proved the fact that the accused and deceased

had consumed liquor at the dairy of Saheb Singh. Learned APP for the

State also submitted that PW-5 Saheb Singh in his deposition also

confirmed the presence of Jaibir Singh and Kapoor Singh at his shop and

consumption of liquor by them before they finally left his shop. Learned

APP also submitted that even PW-7 - Puran Singh who was an

employee of Saheb Singh proved the presence of accused and deceased at

the shop of Saheb Singh on the evening of 21st October 1995 and also

asserted that the scooter was provided to Jaibir Singh and Kapoor Singh

on being asked by both of them at about 9 p.m. on 21 st October 1995.

Learned APP for the State thus submitted that PW-5 and PW-7 are the

witness of last seen evidence and there can be no reason to disbelieve the

portion of their testimonies where they are consistent in their respective

statements which goes to show that both the accused and deceased were

present at the dairy shop of PW-5 Saheb Singh on the evening of 21st

October 1995, their having taken the liquor together, having asked the

two wheeler from Puran, having left the premises of the dairy shop on the

same night and thereafter having met PW-2 Satish on the way when he

was travelling in an Ambassador Car. Learned APP further submitted that

the learned trial court has very objectively analyzed the prosecution

evidence and even despite turning hostile of the said witnesses the trial

court could bring out the truth clearly showing the involvement of the

appellant in the commission of the said crime. Based on these

submissions, learned APP for State submitted that this court may uphold

the impugned judgment and order on sentence passed by the learned trial

court.

10. We have heard learned counsel for the parties at considerable

length and given our thoughtful consideration to the arguments advanced

by them. We have also perused the records of the learned Trial Court.

11. Every criminal trial is a voyage in quest of truth for public justice

to punish the guilty and save the innocent person unconnected or

unrelated with the crime. To prove any person guilty of a crime is thus

not an easy task. Much depends upon as to how and with what perfection

the investigation of any crime takes place. Further how the case is

prosecuted before the court to prove each and every incriminating

evidence as collected by the Investigating Agency is of vital importance.

Then comes the dispassionate and objective analyses of the evidence and

other material produced on record by the learned trial court which has to

be gone into meticulously.

12. It is a settled legal position that in offences as serious as that of

murder, the investigation has to be carried out with full diligence and

with utmost fairness and honesty leaving no gaps and loose ends to leave

a room for the defense to raise any kind of suspicion to claim benefit of

doubt. The task of the investigation undoubtedly is undaunted and

becomes quite challenging, more so when our investigation machinery

suffers from scientific techniques and requires expertise.

13. The case in hand indisputably is a case based on circumstantial

evidence. To recapitulate some of the core facts and the same being that

the accused and the deceased Jaibir Singh were engaged in the same

business of supplying milk and were also into the business of sale and

purchase of buffaloes. Both these persons had gone to the Chaudhary

Dairy, shop owned by PW-5 Saheb Singh where both of them consumed

liquor and their presence at the shop has not been disputed either by PW-

5 or by PW-7, although little variation of time of their stay and departure

has been pointed out. Both the accused and the deceased left the shop in

the late evening of 21st October 1995. As per PW-5 Saheb Singh -

owner of the shop, both of them had left in their respective tempos, while

PW-7 Puran Singh states that at about 9 p.m. both of them asked for his

scooter and he gave the scooter to them but thereafter he does not know

anything..

14. PW-2 Satish Kumar, was the most important witness and his

statement was recorded under Section 161 Cr. P.C. but he turned hostile

at the time of his court deposition. He refused to identify the accused

person in court. He also went to the extent of saying that he would not be

able to identify the person who stopped his ambassador car in which he

was riding and took him to the place where the injured was lying. The

motive of the crime was introduced by the prosecution through the

testimonies of two brothers of the deceased i.e. PW-3 and PW-4, who in

their respective depositions deposed about the appellant having purchased

two buffaloes from the victim for a sum of Rs.28,000/- on credit about

three days prior to the date of occurrence and did not return the said

money to the victim.

15. After having analyzed the evidence adduced by the prosecution,

learned trial court found the following circumstantial evidence emerging

against the accused persons:-

      i)     The death of Jaibir Singh was homicidal;

      ii)    The accused had a motive for murder of Jaibir Singh because

he had not paid the price of buffaloes purchased by him.

iii) On 21.10.95 deceased Jaibir Singh and accused Kapoor

Singh were present together at Choudhary Dairy in Village

Nevada till 9.00 p.m.

iv) The deceased had consumed liquor at Choudhary Dairy on

that evening.

v) The deceased and the accused had taken scooter bearing No.

DIH - 165 from Pooran Singh on that night.

vi) Accused Kapoor Singh was present with the deceased at the

time of occurrence because he had met PW-2 Satish Kumar

near Bakar Garh Mor and drawn his attention to the injured

Jaibir Singh lying on the road side.

vii) Accused Kapoor Singh fled from the spot leaving behind

Jaibir Singh in injured condition near Bakar Garh Mor.

16. The case of the prosecution is based on circumstantial evidence.

The law regarding circumstantial evidence is well settled. The five golden

principles which are considered as panchsheel of proofs in a case based

on circumstantial evidence, are as follows:-

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

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783 where the following observations were made:

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

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

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

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

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

             (Refer: Sharad Birdhichand Sarda Vs.           State of
             Maharashtra, AIR 1984 SC 1622 )

17. It is also well settled that with a view to record conviction based on

circumstantial evidence, the prosecution must establish that all the pieces

of incriminating circumstances so proved must form complete chain of

events as would permit no conclusion other than one of guilt of the

accused. The court has to take into account the totality of the

circumstances of the case to find out as to whether the prosecution has

succeeded in proving the chain of incriminating circumstances to base the

conviction of the accused, which forms only one hypothesis that is the

guilt of the accused incompatible with his innocence and there are no

missing links and gaps in the chain of such circumstances.

18. Bearing in mind the foregoing settled legal principles, let us now

analyze as to whether the circumstantial evidence as culled out by the

learned Trial Court have been proved by the prosecution with the help of

cogent and clinching evidence and also whether they form a complete

chain of circumstances to prove the guilt on the part of the accused

leaving no reasonable ground for a conclusion consistent with the

innocence of the accused.

19. The first circumstance spelt out by learned Trial Court is with

regard to the death of Jaibir Singh as homicidal death cannot be of any

dispute. The deceased Jaibir Singh was real brother of PW-3 (Narender)

and PW-4 (Jasbir Singh). Both of them were informed by PW-2 Satish

Kumar that their brother Jaibir Singh had met with an accident at a place

near Bakar Garh Mor and on receiving such an information, both the

brothers had reached to the place of occurrence and found their brother in

a precarious condition. They brought the victim back to their home,

where the doctor was called, who declared him dead. The dead body of

the deceased was sent for autopsy and as per the autopsy report, there

were as many as 12 external injuries found inflicted on his person and as

per the post mortem report, Ex.PW-15/A, injury No.1 and 2 were caused

by hard object and injury No.3 was caused by one sharp edged weapon.

The Doctor opined that injury Nos.2 and 3 were individually sufficient to

cause death. Death was due to haemorrhagic shock associated with coma.

The abrasion mentioned in the post mortem report were possible by

friction against hard rough surfaces/objects. The doctor also opined that

injury No.3 could not have been caused in road accident. Post mortem

report when coupled with the testimonies of PW-2, PW-3 and PW-4,

PW-13, PW-15 and PW-16 leaves no iota of doubt with regard to the

homicidal death of the deceased Jaibir Singh.

20. The second circumstance as a piece of incriminating evidence

which as per the learned Trial Court prosecution succeeded to establish

was with regard to the motive of the accused to carry out the murder of

the Jaibir Singh. The motive ascribed by the prosecution was that the

accused had not paid the price of two buffaloes purchased by him from

the deceased. This motive theory came in the evidence of PW-3 and PW-

4. Both of them in their respective testimonies deposed that two or three

days prior to the date of the incident, the accused had purchased two

buffaloes from the deceased on credit for a sum of Rs.28,000/- and the

accused did not pay back the money. In our view, mere purchase of

buffaloes by the accused from the deceased on credit basis, just three

days prior to the date of incident cannot afford a possible ground for the

accused to have carried out the gruesome murder of the deceased. No

evidence surfaced on record that any fight or quarrel had taken place

between them due to non return of money by the accused or any legal

action was initiated by the deceased against the accused on this issue. It is

not in dispute that both the accused and deceased are engaged in supply

of milk to various dairies and they were also dealing with the business of

sale and purchase of buffaloes. It thus appears to us that a very normal

and routine transaction between the accused and deceased about the sale

and purchase of buffaloes by one party from the other party must have

taken place.

21. We also cannot lose sight of the fact that the alleged transaction of

sale and purchase of buffaloes had taken place just two or three days

prior to the date of incident and therefore, there were remote chances of

any kind of dispute taking place between the parties within such a short

period. Moreover, as per the deposition of PW-5 and PW-7 both the

accused and deceased had enjoyed the evening together by taking drinks

before they finally left from the Choudhary Dairy and this again would

show that they shared a cordial and friendly relationship. In the

background of these admitted facts, it is unfathomable that the accused

had any kind of motive or any pre-meditated plan to carry out the murder

of the deceased because he never wanted to return the said money to the

deceased. We therefore find ourselves in complete disagreement with the

alleged motive theory propounded by the prosecution to inculpate the

accused. There is no gainsaying to state here that motive assumes a

significant role in a case based on circumstantial evidence although in the

absence of motive as well, the prosecution can succeed to prove a case

against the accused subject to the condition that the chain of

circumstantial evidence should be strong and able to prove the guilt on

the part of the accused. However, in the facts of the present case, no clear

and cogent evidence has surfaced to establish motive on the part of the

accused in carrying out the murder of the deceased.

22. The next two circumstances relied upon by the learned Trial Court

are that on 21st October 1995 , deceased - Jaibir Singh and accused were

present at Chaudhary Dairy at Village Navada till 9 p.m. and the deceased

had consumed liquor at Chaudhary Dairy on that evening and they had

taken Scooter No. DIH 165 from PW-7 Puran Singh on that night. These

three set of circumstances, the prosecution did succeed to establish. PW-

5 Saheb Singh was the owner of the milk dairy which he was running in

the name of Chaudhary Dairy. It is an undeniable fact that both the

deceased and the accused used to supply milk to the dairy and for that

purpose both of them had visited his dairy in the evening of 21 st October

1995. Both of them along with PW-5 Saheb Singh had also consumed

liquor at the shop. This consumption of liquor by the deceased stands

proved from the postmortem report of the deceased which is proved on

record as Ex.-PW-15/A recording presence of 300 ml alcohol in his

body.

23. Both these witnesses i.e. PW-5 and PW-6 had turned hostile but

their testimonies remained consistent with regard to the presence of the

deceased and accused at the dairy farm of PW-5 on the evening of 21st

October 1995. They were however, not consistent regarding the time of

their departure from the dairy shop and whether they had asked scooter

from Puran. PW-5 in his examination-in-chief deposed that both Jaibir

Singh and the accused Kapoor Singh left in their respective tempos with

some time gap between their departures. PW-5 Saheb Singh denied in his

cross-examination the suggestion given by the learned Additional Public

Prosecutor for the State that he gave scooter of Puran to them and both of

them left on the scooter. PW-7 Puran Singh in his examination-in-chief

deposed that at about 9 p.m. the deceased and accused had asked for his

scooter and acceding to his request he gave his scooter to both of them.

PW-7 in his cross-examination pleaded his ignorance as to whether both

of them had left the dairy on a scooter. The evidence of these two

witnesses thus can be accepted to the extent of consistency in their

depositions with regard to the presence of the deceased and accused at

their dairy shop of PW-5 on the evening of 21st October 1995 and their

having consumed liquor together. So far as the fact of handing over the

keys of scooter is concerned, the same appears only in the testimony of

PW-7. There is no other evidence to support the delivery of scooter by

PW-7 to the deceased and the accused and also both of them leaving the

dairy farm on the said scooter. The prosecution has thus succeeded in

proving the circumstance (iii) and (iv) and not item (v) of the

circumstance, which finds mention in paragraph 14 of the impugned

judgment. Para (vi) of the circumstance on which reliance was placed by

learned Trial Court was that accused Kapoor Singh was present with the

deceased at the time of occurrence because he had met PW-2 Satish

Kumar, near Bakar Garh Mor and drawn his attention to the injured Jaibir

Singh lying on the road side. This circumstantial evidence is based on the

testimony of PW-2 Satish Kumar. As per the deposition of PW-2, he took

a lift in ambassador car so as to reach back home and in the ambassador

car there were two other passengers. As per his deposition, when the

ambassador car crossed Bakar Garh Mor, he saw scooter lying in the

middle of the road and the driver of the car stopped and got down to find

out as to what was the matter. When he did not find anyone, he came

back to his seat and while the driver of the car was about to start the car,

then a person came to inform him that some persons armed with lathi and

jellies had attacked them and due to that the other person named Kala had

received injuries. PW-2 went to see the injured person and identified him

as Kala who used to supply milk at dairy. He then went to his village in

the same car leaving the injured at the spot and at the village, informed

the father of the injured about his son having met with an accident. PW-2

was the star witness of the prosecution but he turned hostile. In his

examination-in-chief he deposed that he would not be able to identify the

person who met him near Bakar Garh Mor who informed him about the

injured person. He also refused to identify the accused Kapoor Singh as

the same person who had signaled the car, when he was confronted at the

time of his deposition in court. The evidence of PW-3 and PW-4 with

regard to the name of the accused as the person who allegedly met PW-2

Satish Kumar at the spot is hearsay evidence and therefore, no weightage

can be given to such inadmissible evidence. The Investigating Officer did

not make any efforts to ascertain the identity of the person who was

driving the ambassador car and also the identity of two passengers, who

were in the ambassador car on the fateful night. Their evidence could be

of great help in identifying the person who was present at the spot of the

crime alongwith the injured person.

24. The evidence of a hostile witness can be accepted but only to the

extent where his version is corroborated by other reliable evidence.

However, where such a witness who in his court deposition states

something which is totally destructive of the stand taken by him in his

statement recorded under Section 161 of Cr. P.C., then no reliance can be

placed on such a part of his testimony and for such an evidence the

prosecution will have to bank upon some other reliable evidence. Leaving

such a portion of hostility in his statement rest of his evidence can still be

relied upon if corroborated by other reliable evidence to base the

conviction of the accused person. In the facts of the present case PW-2

Satish Kumar turned hostile so far as the identity of the accused person is

concerned. He even refused to identify the accused person at the time of

his court deposition, while the accused was present in the court. We also

do not find that there is other reliable evidence on record which could

prove that this accused was present on the spot on the intervening night of

21st October 1995 at Bakar Garh Mor alongwith the injured person. We

are therefore not persuaded to believe the presence of the accused Kapoor

Singh with the deceased at the time of the occurrence in the absence of

any clinching and cogent circumstantial evidence proved on record.

25. So far as the circumstance (vii) is concerned, that accused Kapoor

Singh fled away from the spot leaving Jaibir Singh in injured condition, it

would be suffice to state that once we have not been able to persuade

ourselves to believe the presence of accused Kapoor Singh at the spot,

therefore, no occasion can arise for us to draw an inference that he had

fled away from the spot.

26. In the light of the above discussion, we are of the considered view

that the prosecution has not succeeded to satisfactorily and convincingly

proved on record the complete chain of circumstantial evidence which

could unerringly establish the guilt on the part of the accused

incompatible with his innocence and in such background, we are not

persuaded to accept the reasoning given by the learned Trial Court to hold

the appellant guilty for committing the said offence.

27. As already said, each and every piece of incriminating evidence in

the chain of circumstantial evidence has to be proved by cogent, reliable

and clinching evidence and it is not that any single piece of incriminating

circumstantial evidence by itself can be sufficient to prove the guilt of the

accused. It is the totality of the circumstances which can establish the

guilt of the accused and not in isolation of each other.

28. In the aforesaid discussion, the appeal filed by the appellant is

allowed and the judgment and order on sentence dated 18th August 1999

and 19th August 1999, respectively, passed by the learned Additional

Sessions Judge are set aside and the appellant is acquitted of the offence

punishable under Section 302 of IPC.

29. Appellant is on bail. His bail bonds are discharged. The case of the

appellant is set at rest.

30. A copy of the order be sent to Jail Superintendant for information.

31. The appeal stands disposed of.

KAILASH GAMBHIR, J.

SUNITA GUPTA, J.

MARCH 20, 2014 pkb