Oliver Kujur & Anr. vs State Of Delhi
2014 Latest Caselaw 2412 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 13th May, 2014
    +CRL.A. 495/2000
    OLIVER KUJUR & ANR.                           ..... Appellants
                    Through:          None
                    versus

    STATE OF DELHI                                 ..... Respondent
                  Through:            Ms. Richa Kapoor, Additional
                                      Public Prosecutor for State with
                                      Inspector Pankaj Malik, SHO,
                                      Police Station Subhash Place,
                                      Delhi
    +CRL.A.515/2000
    KULJEET SINGH @ PRINCE             ..... Appellants
                    Through: Mr. Rajeev Gaur „Naseem‟,
                             Advocate
                    versus

    STATE OF DELHI                               ..... Respondent
                  Through:            Ms. Richa Kapoor, Additional
                                      Public Prosecutor for State with
                                      Inspector Pankaj Malik, SHO,
                                      Police Station Subhash Place,
                                      Delhi
    %
    CORAM:
    HON'BLE MR. JUSTICE KAILASH GAMBHIR
    HON'BLE MS. JUSTICE SUNITA GUPTA

                                JUDGMENT

: SUNITA GUPTA, J. (Oral)

1. Appellants Oliver Kujur and Kuljeet Singh @ Prince have

filed separate appeals bearing No.Crl.A.495/2000 and

Crl.A.515/2000 challenging the judgment and order on sentence

dated 10th August, 2000 and 12th August, 2000 respectively passed

by the learned Additional District and Sessions Judge, Delhi in

Sessions Case No.57/97 arising out of FIR No.803/95 u/s

302/394/34 IPC, PS Saraswati Vihar, whereby the appellants were

convicted u/s 302/34 IPC and were sentenced to undergo

imprisonment for life and a fine of Rs.50,000/- each, in default of

payment, further to undergo Simple Imprisonment for 5 years each.

2. Prosecution case, as revealed from the charge sheet,

succinctly stated, is as follows:

3. On 19th December, 1995, Inspector H.S. Bhardwaj along

with Inspector Rohtas Singh, Head Constable Padmesh, Const.

Manoj Kumar was on patrolling duty at Lok Vihar. At about 2:10

PM, a wireless message was received that a lady had been

murdered at B-11, Rang Mahal Society, Pitampura, Delhi. So

Inspector H.S. Bhardwaj along with the staff reached the place of

occurrence where he met Kumari Kashmira and her younger sister

Trupti. Smt. Swati, mother of Kashmira was found murdered in

the bathroom. Inspector H.S. Bhardwaj recorded the statement of

Kumari Kashmira, Ex.PW11/A wherein she stated inter alia that

she along with her mother Swati and sister Trupti aged 9 years had

been residing as tenants in house No.B-11, Rang Mahal

Apartments, Pitampura, Saraswati Vihar for the last six months.

She was studying in 10th standard while her sister was studying in

3rd standard. Her father had expired in the year 1993. Sh.T.S.

Gandhi, R/o BG-11, Shalimar Bagh, East was her father‟s friend

and was on visiting terms to her house. He also used to financially

assist them. There was a servant, namely, Ramu @ Bhim Singh

Thapa aged about 17-18 years who was working as a domestic

servant for the last about 1½ years. Earlier he was working at the

house of Mr.T.S. Gandhi. On that day, she as well as her sister had

gone to school at about 8:00 AM. Her mother and servant Ramu

were in the house. At about 1:30 PM, when she was returning back

from school to her house along with her friends, she noticed one

white Maruti Van bearing No.DL-4CD-6598 on the back side of

her house belonging to Sh.T.S. Gandhi which was normally used

by Kuljeet Singh @ Prince, s/o Mr. T.S. Gandhi. She got

astonished on seeing the Maruti Van parked over there and peeped

inside the vehicle but nobody was available in the van. Normally

whenever this vehicle used to come, it used to be parked inside the

society. When she along with her sister reached the house, she

found the door of the house on the first floor locked. As such, she

and her sister came downstairs after keeping the school bag on the

stairs and thought that their mother must have gone somewhere

nearby. After some time, when they returned back, the van was

still lying there and they found the main gate of 2nd floor of the

house opened. When they entered the second floor, they found the

house ransacked. Clothes were lying scattered here and there.

They came to the drawing room of the first floor where purse of

her mother was found lying on the bed. Some money and articles

were lying scattered. Almirah and the locker were also lying

opened. On checking the room, she found her mother lying in the

bathroom with injuries on her head. One bat was lying near the

wall of the bathroom. She and her sister raised alarm. Persons

from the neighbourhood collected and somebody informed the

police. On the basis of this statement, rukka Ex.PW18/A was

prepared and was sent to the police station on the basis of which

FIR Ex.PW12/A under Section 302/394/34 IPC was registered.

During the course of investigation, one Maruti Van bearing No.DL

4 CD 6598 was seized from Gurdwara Nanak Pyau, Rana Pratap

Bagh. On the same day, statements of Bhim Singh Thapa and Ram

Bahadur, who were working as domestic servants at the house of

deceased, were recorded. On pointing out of Bhim Singh Thapa,

accused Oliver Kujur was arrested. He made a disclosure statement

and led the police party to his house from where he got recovered a

packet containing certain jewellery articles, currency and other

items. He also got recovered his blood stained clothes. Post-

Mortem on the dead body of Swati was got conducted. Accused

Kuljeet could not be arrested. As such, he was kept in column

No.2. After completing investigation, charge sheet was submitted

against Oliver Kujur. Thereafter, on 20th December, 1995, accused

Kuljeet @ Prince was arrested and supplementary charge sheet was

submitted against him.

4. After hearing arguments on charge, charge for offence under

Section 302/34 and 392/34 r/w Section 397 IPC was framed

against both the accused to which they pleaded not guilty and

claimed trial.

5. Prosecution in all examined 18 witnesses to substantiate its

case. All the incriminating evidence was put to the accused

persons while recording their statements under Section 313 Cr.

P.C. wherein they denied the case of prosecution and alleged their

false implication in this case.

6. Accused Oliver Kujur examined DW1 Sh. John Kujur who

deposed that his son Oliver Kujur was residing with him on the 3 rd

floor of house No. 22D, BB (E) Shalimar Bagh, Delhi.

7. After hearing learned counsel for the parties, vide impugned

judgment dated 10th August, 2010, both the accused were convicted

of offence under Section 302/34 IPC. However, as far as charge

under Section 392/397 IPC is concerned, they were acquitted of the

offence. Vide Order dated 12th August, 2000, they were sentenced

as mentioned above. Feeling aggrieved by the same, separate

appeals have been filed by both the accused.

8. It was submitted by learned counsel for the appellant Shri

Rajiv Gaur Naseem that the present case is based on circumstantial

evidence. There is no eye-witness to the occurrence. Complainant

Kashmira has not supported the case of prosecution at all and has

gone to the extent of deposing that the complaint Ex.PW11/A

although bears her signature but she has signed the same without

going through the contents of the same. As far as the two servants,

namely Bhim Singh Thapa and Ram Bahadur are concerned, both

these witnesses have also not supported the case of prosecution

and, as such, were declared hostile. In cross-examination also,

nothing could be elicited to support the case of prosecution. It was

further submitted that as far as appellant Kuljeet Singh is

concerned, there is absolutely no incriminating evidence against

him to connect him with the crime and in this regard, he has placed

reliance on a bail order passed by this Court whereby the learned

Additional Public Prosecutor at that stage, had admitted that no

incriminating evidence has come against him to connect with the

crime and it was only thereafter, he was released on bail. As

regards, Oliver Kujur, it was submitted that the only piece of

evidence relied upon by the prosecution is the blood stained

clothes. However, that itself is not sufficient to connect him with

the crime. Although recovery of certain ornaments and certain

other articles were also alleged to have been effected at his instance

but no test-identification was got conducted. As such, it was

submitted that the impugned order is based on conjectures and

surmises and deserves to be set aside. Reliance was placed on

State of Punjab v. Madan Mohan Lal Verma, 2013 (10) Scale 2;

Mustkeem @ Sirajudeen v. State of Rajasthan, 2011 (11) SCC

724; Subhash Chand v. State of Rajasthan, 2002(1) SCC 702;

Shankar Lal Gyarasilal Dixit v. State of Maharashtra, 1981 (2)

SCC 35

9. Ms. Richa Kapoor, learned Public Prosecutor for the State,

on the other hand, submitted that Kashmira, daughter of the

deceased had given an elaborate version of the entire incident

immediately after the occurrence as to how her mother was

murdered. She has also given the motive for commission of crime,

inasmuch as, Mr.T.S. Gandhi, father of accused Kuljeet was having

illicit relations with her mother which was objected to by Kuljeet

Singh and his mother. Kuljeet Singh had even earlier tried to hire

their servant by paying Rs.25000/- for getting the door of the

bathroom opened so that he may be able to do away with his

mother. On the fateful day, her mother was murdered and entire

house was ransacked in order to give it a colour of robbery. She

also referred to the statement of Bhim Singh Thapa, PW8 and Ram

Bahadur, PW9 and the statement of both these witnesses recorded

under Section 161 Cr.P.C. as well as under Section 164 Cr.P.C. by

the learned Metropolitan Magistrate. However, both these

witnesses for reasons best known to them did not support the case

of prosecution when they appeared in the witness box. However,

from Oliver Kujur, ornaments and various articles, belonging to the

deceased, were recovered. His blood stained clothes were also

recovered, which as per the report of FSL, bear the same blood

group as that of the deceased. However, no incriminating evidence

could be pointed out against accused Kuljeet.

10. We have given our considerable thoughts to the respective

submissions of learned counsel for the parties and have perused the

record.

11. There is no dispute that Smt. Swati met a homicidal death,

inasmuch as, post-mortem on her body was conducted by Dr.L.T.

Ramani (PW1) who found following injuries on her person:-

External injuries:-

1. Forehead was depressed and there was wide abrasion 3 ½ x 1 ½ over eyebrows and forehead with bruising involving 5"x 2 ½ "areas.

2. Laceration 1½" x ½" X Craniale cavity deep placed antero-posteriorily on the left frontal area.

3. Laceration 2½" x 1" X cranial cavity deep in left occipital area.

4. Laceration 1" x ½" on the left temporal region.

       5.      Laceration    ¾" x ½" born deep on the left
       frontal/temporal area.

6. Laceration ½" X bone deep on the left anterior hair margin.

7. Laceration ¾" x ½ x bone deep on the right side of forehead.

8. Bruise 3"x 3"with abrasion on the back of left hand.

9. Bruise 5"x 3"with abrasion on the back of left wrist and forearm.

10. Bruise 3"x 1 ½" on the lower part back of chest left side.

11. Fracture of head of 3rd to 5th meta carpels bones massive clot beneath injury no.8.

Internal Examination:

Scalp tissues showed massive blood clot all over. There were multiple depressed and gapping fracture involving frontal both partial and occipital bone. Brain was badly lacerated. Base of the scalp was fractured. Neck tissues, chest and abdominal organs were normal.

It was opined that all injuries were ante-mortem caused with blunt weapon. Injuries to the skull were sufficient in the ordinary course of nature to cause death. The death was due to cranio-cerebral injury.

12. The crucial question for consideration, however, is, who is

responsible for causing this homicidal death. Admittedly, there is

no eye-witness to the incident and the case is based on

circumstantial evidence. The tests applicable to cases based on

circumstantial evidence are fairly well-known. The decisions of

Hon‟ble Supreme Court recognising and applying those tests to

varied fact situation are a legion. Reference to only some of the

said decisions should, however, suffice.

13. In Sanatan Naskar and Anr. v. State of West Bengal, (2010)

8 SCC 249, it was observed as follows:-

"27. There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eyewitness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eyewitness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles in that regard."

16. A three-Judge Bench of Hon‟ble Apex Court in Sharad

Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116

held as under:-

'152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of U.P., (1969) 3 SCC 198 and Ram Gopal v. State of Maharashtra, (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumant case (supra):

"10.... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show

that within all human probability the act must have been done by the accused."

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

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

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, where the observations were made:-

"19.... 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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

17. What, therefore, needs to be seen is whether the prosecution

has established the incriminating circumstances upon which it

places reliance and whether those circumstances constitute a chain

so complete as not to leave any reasonable ground for the

appellants to be found innocent.

18. The star witness of prosecution was PW11 Kashmira, author

of the FIR. A detailed version was given by her immediately after

the incident to the police in the form of her statement Ex.PW11/A

which became the bedrock of investigation, however, while

appearing as a witness, she has chosen not to support the case of

prosecution. Although she admitted her signatures on statement

Ex.PW11/A and the recovery memos Ex.PW11/B to PW 11/E,

however, she went on stating that the statement was signed by her

without going through the contents of the same. Neither it was read

over to her nor did she know the text of these papers. She also

denied that pink colour cloth (dupatta) having blood stains or

cricket bat having blood stains or blood stained earth, blood mixed

water or tube and keys were seized in her presence. She admitted

that accused Kuljeet was known to her from before as he was son

of her father‟s friend Sh. T.S. Gandhi and sometimes used to visit

her house but denied rest of the case of prosecution regarding his

visit to her house on 19th December, 1995 or his Maruti Van No.

DL-4CD-6598 lying parked near her house or that she suspected

involvement of Kuljeet Singh and his mother Jagjeet Kaur in the

murder of her mother or that Kuljeet even threatened her mother to

leave Delhi or that her mother ever told Kuljeet that his father Mr.

T.S. Gandhi had been coming to her house of his own sweet will

and Kuljeet may ask his father to stop visiting their house. She

also denied that Kuljeet even offered Rs.25,000/- to her servant

Ramu to keep the door opened when she and her sister had gone to

school. She was confronted with material portions of her statement

Ex.PW11/A which she denied having made to police.

19. Another blow came to the prosecution when both the

domestic servants PW8 Bhim Singh Thapa and PW9 Ram Bahadur

also turned hostile. Statement of PW8 Bhim Singh Thapa was

recorded by the police. He was also produced before the learned

Metropolitan Magistrate and his statement Ex.PW8/A was

recorded by Sh.Narender Kumar, the then Metropolitan Magistrate

wherein he had stated that he was working as a cook with Mr.T.S.

Gandhi. Mr.T.S. Gandhi was living with Swati at B-11, Rangmahal

Apartments for the last about 1½ months which was objected to by

the family members of Trilok Singh. Kuljeet Singh, s/o T.S.

Gandhi and his wife Jagjit Kaur used to quarrel with T.S. Gandhi

and Swati on this account. On 19th December, 1995, on the asking

of Kuljeet, he brought Ram Bahadur, who was working as

domestic servant at the house of Swati, to the house of T.S. Gandhi

where they prepared breakfast and served the same to Kuljeet and

his friend Oliver Kujur. They returned back at 2:30 PM. Kuljeet

changed his clothes and sent the family members along with Ram

Bahadur outside the house on the ground that there was going to be

a raid by the Customs Department. Thereafter, he took him and

Ram Bahadur along with him in a Maruti Van and left them at

Model Town. He gave him Rs.400/- and told him to go

somewhere else and to enquire after 4-5 days. A sum of Rs.2000/-

was given to Ram Bahadur for going to Nepal. Kuljeet, however,

on seeing the police men, managed to escape. He returned back to

BG-11, Shalimar Bagh where police was standing. He narrated the

entire incident to the police and handed over Rs.400/- to them.

However, in his deposition before the Court, he totally turned

hostile and went on stating that police took him to police station

where he was detained for 5-6 days and was asked to make

statement as desired by them. He was produced before the

Magistrate and he gave the statement Ex.PW8/A before the

Magistrate as per the directions of the police. Even then, he was

detained for 2 more days and was released thereafter only. He

pleaded his ignorance about this case and went on stating that

nothing happened in his presence.

20. PW9 Ram Bahadur deposed on the same lines and while

admitting his statement Ex.PW9/A recorded under Section 164

Cr.P.C. by the Metropolitan Magistrate, he stated that the statement

was made under the pressure of the police as he was also detained

in police station for 5-6 days and was released two days thereafter.

Under the circumstances, keeping in view the fact that both these

witnesses also chose not to support the case of the prosecution, the

factum of illicit relation between T.S. Gandhi and Swati could not

be proved which was according to the prosecution a strong motive

for Kuljeet to commit murder of Swati along with his associate

Oliver Kujur.

21. It is settled principle of law that a statement recorded under

Section 164 Cr. P.C. by the Metropolitan Magistrate cannot be

used as a substantive piece of evidence as held in Utpal Das &

Ors. v.State of West Bengal, (2010) 6 SCC 493 and Baij Nath Sah

v. State of Bihar, (2010) 6 SCC 736. It can be utilized only to

corroborate or contradict the witness viz-a-viz statement made in

Court. It can only be utilized as a previous statement and nothing

more.

22. That being the legal proposition, since according to both the

witnesses, the statements were made by them before the learned

Metropolitan Magistrate under duress and pressure of the police,

prosecution cannot get any benefit from those statements made

before the Metropolitan Magistrate.

23. Besides that, so far as the accused Kuljeet is concerned,

absolutely no incriminating evidence has come on record to

connect him with the crime.

24. As far as accused Oliver Kujur is concerned, it is the case of

the prosecution that on 20th December, 1995, this accused was

arrested on the pointing out of PW8 Bhim Bahadur. He made a

disclosure statement Ex.PW7/D and in pursuance to the same, he

led the police to his house and from a trunk lying in the room, he

got various ornaments, wrist watch, portable radio, cordless

telephone etc. recovered which were seized vide memo Ex.PW7/E.

He also got recovered one jacket and pant stained with blood which

was seized vide memo Ex.PW7/F.

25. At the outset, it may be observed that there is no independent

witness either to the disclosure statement or subsequent recovery at

the instance of this accused. There was no dearth of independent

witnesses, inasmuch as accused was arrested from a residential

area. Admittedly, no effort was made to join any independent

witness either at the time of apprehension of the accused or at the

time of recovery. No effort was made to call any neighbour or

residents of the society to join the investigation as contemplated

under Section 100 of Cr. P.C. Even Bhim Singh Thapa at whose

pointing out, accused was alleged to have been apprehended has not

been joined in any proceedings.

26. Even if it is taken that there is no ground to disbelieve the

testimony of police officials, it is required to be seen as to whether

the same connects the accused with crime.

27. As per the case of prosecution, in pursuance to the disclosure

statement accused got recovered certain ornaments and other

articles which were robbed from the house of Swati while leaving

the spot and his blood stained clothes which he was wearing at the

time of incident.

28. So far as the ornaments, wrist watch etc. are concerned,

although PW 11 Kashmira in her statement had given the details of

the articles which were found missing from the house, however,

there is nothing on record to prove that the articles recovered from

this accused belonged to the deceased. No Test Identification

Parade of these articles was got conducted by the Investigating

Officer for reasons best known to him. So much so, even to PW11

Kashmira, these articles were shown in order to identify whether

the same belonged to her mother or were lying in her house. Under

the circumstances, there is no material to show that these articles

were taken by the accused from the house of the deceased after

committing her murder.

29. The only other piece of evidence relied upon by the

prosecution is the recovery of blood stained clothes of accused.

These clothes along with clothes of deceased and other articles

were sent to FSL and as per report Ex.PW17/B given by Dr.

Rajendra Kumar, human blood of „A‟ Group was found on the

same which matched with the blood group of deceased.

30. The recoveries of blood-stained clothes and weapon of

offence at the instance of the appellant, however, has to be viewed

in light of various decisions of the Supreme Court where such kind

of recoveries have been held to be very weak evidence.

31. In the decision reported as AIR 1963 SC 1113, Prabhoo v.

State of U.P. recovery of a blood-stained shirt and a dhoti as also

an axe on which human blood was detected was held to be

extremely weak evidence. Similarly, in the decision reported as

(1977) 4 SCC 600 (1) Narsinbhai Prajapati v. Chhatrasinh Kanji,

the recovery of a blood-stained shirt and a dhoti as also the weapon

of offence a dhariya were held to be weak evidence. In the decision

reported as AIR 1994 SC 110 Surjit Singh v. State of Punjab the

recovery of a watch stated to be that of deceased and a dagger

stained with blood of the same group as that of the deceased were

held to be weak evidence. As late as in the decision reported as

(2009) 17 SCC 273 Mani v. State of T.N. recoveries of blood

stained clothes and weapon of offence stained with blood were held

to be weak recoveries.

32. Following these judgments in Mohd Shahid v. State in

Crl.A.433/1999 dated 01.04.2014 decided by this Bench and

Jaffar @ Raju v. State in Crl.A.1057/2010 decided by a Bench [in

which one of us, Sunita Gupta, J., was a member], such recovery of

blood stained clothes on its own was held to be a circumstance too

fragile to bear the burden of appellant‟s conviction for murder.

Similar view was taken in Parmeshwari v. State, 2010 (4) Crimes

599 Delhi; Amar Pal v. State, 2010 (170) DLT 788, Shekhar &

Anr v. State of NCT of Delhi (Delhi); 2008 Cri L.J 3258; Vijay

Kumar v. State of Rajasthan, 2014(2) JCC 888.

33. Besides these circumstances, there is no other incriminating

piece of evidence coming on record to connect the appellants with

the crime.

34. It is true that circumstances alleged by the prosecution give

rise to a suspicion against the appellants but suspicion howsoever

strong it may be, is not enough to justify conviction of the

appellants for murder. The trial court has, in our opinion,

proceeded more on the basis that the appellants may have murdered

the deceased Swati. In doing so, the trial court overlooked the fact

that there is a long distance between „may have‟ and „must have‟

which distance must be traversed by the prosecution by producing

cogent and reliable evidence. No such evidence is unfortunately

forthcoming in the instant case. The legal position on the subject is

well settled.

35. In Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006)

10 JCC 172, it was observed:

"It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however grave may be, cannot be a substitute for a proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence."

36. As far back as in the year 1957, Hon‟ble Supreme Court in

Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637

observed that there may be an element of truth in the version of

prosecution against accused and considering as a whole, the

prosecution story may be true; but between 'may be true' and 'must

be true' there is inevitably a long distance to travel and the whole of

this distance must be covered by legal, reliable and unimpeachable

evidence before the accused can be convicted. It was further

observed that degree of agony and frustration may be caused to the

families of the victim by the fact that heinous crime may go

unpunished but then the law does not permit the Courts to punish

the accused on the basis of moral conviction or on suspicion alone.

The burden of proof in criminal trial never shifts and it is always

the burden of the prosecution to prove its case beyond reasonable

doubts on the basis of acceptable evidence and in case of doubt,

accused is entitled to get benefit of the same.

37. Even if we take the most charitable liberal view in favour of

the prosecution, all that we get is only a suspicion against the

appellants which cannot take the place of proof, therefore,

appellants are entitled to get benefit of the same.

38. The findings of the learned Trial Court which does not find

any support from the material available on record cannot be

sustained. Accordingly, both the appeals are allowed. The

impugned judgment dated 10th August, 2000 and order on sentence

dated 12th August, 2000 are set aside.

39. Sentence of appellant Oliver was suspended vide order dated

30th January, 2002. His bail bonds are cancelled and sureties are

discharged.

40. Sentence of Kuljeet Singh was also suspended vide order

dated 27th November, 2000. However, when the appeal came up

for hearing, this appellant did not appear despite issuance of non-

bailable warrants and, thereafter, when he appeared, he was taken

into custody. Since the appellant has been acquitted of the offence

alleged against him, Superintendent, Jail is directed to set him at

liberty, forthwith, if not wanted in any other case.

Copy of the judgment along with Trial Court Record be sent

back forthwith.

(SUNITA GUPTA) JUDGE

(KAILASH GAMBHIR) JUDGE MAY 13, 2014 rs