Judgment:
Malik Sharief-Ud-Din, J.
(1) Connected with this appeal are Criminal Appeal No. 244/85 Munna v. Stale, Criminal Appeal No. 260/85 Prakash Lal v. State, Criminal Appeal No. 114/86 Ravinder Kumar v. State. Since all the appellants have been convicted and sentenced in respect of the same incident, this order will dispose of all the four appeals. The appellants were convicted under section 302/34 Indian Penal Code . and under section 392/34 Indian Penal Code . and were respectively sentenced to undergo life imprisonment and to rigorous imprisonment for 7 years. Both the sentences were, however, made to run concurrently.
(2) We may briefly state the facts, the prosecution case is that on 14th of August 1983 one Brij Lal, father of Surinder Kumar, who lodged the first information report, was done to death by strangulation at the terrace of his quarter No. 61A, Kamla Market. The
'I reside at house No. F-312, Mansarover Garden. My shop bearing No. 171 is situated in Kamla Market. My father Shri Brij Lal has been residing in quarter No. 61-A, Kamla Market, for the ' last 20 years. Our servant Dubai also resides in that very quarter along with his wife Muni. Yesterday, I had gone back home from my shop at about 6 p.m. Today, at 6 a.m. our servant Dubai informed me on telephone that Babuji was lying dead on the cot. Whereupon, I reached Kamla Market and saw that my father was lying on the cot covered with a chadar. On removing the chadar I saw scratches on the front side of the neck, mark of injury on the right temple and mark of injury on the side of right eye. The scratch marks were also present on the knee and elbow. One mark was also present on the front side of the stomach and he was lying dead on the cot. I have come to lodge a report. I have heard the statement. It is correct.'
(3) Before we proceed further, it is necessary to take notice of the fact as to what was the story in existence on 14th of August 1983 even at the time when the inquest report was sent. The brief facts sent with the inquest read as under :
'It is submitted that on investigation the brief facts of the case have been found as under : The deceased Brij Lal son of Suman Mal, resident of 61 A. Kamla Market, Delhi, has been residing in quarter No. 61A Kamla Market, Delhi for the last about 20 years. His shop bearing No. 177 is situated at Kamla Market. His servant who has been serving him at his house as well as at his shop has also been residing with him in the said quarter along with his wife Muni. The name of the servant is Dubai. The deceased went to sleep at 10 or 10.15 p.in. He was sleeping outside on the roof-top in front of the quarter. The servant and his wife were inside the room. When the servant woke up at 5 a.m. he saw that Brij Lal had not woken up by that time. When he tried to wake. him up he was found dead. He rang up Surinder Kumar the son of the proprietor who had reached there, lodged a complaint with the police at the police station. The body of the deceased was examined whereupon the following injuries were found on the body of the deceased. Abrasion on the front side of the neck, marks of injury on the right temple, mark of injury on the side of the right eye, mark of injury on the abdomen. Bruises on the knees as well as on the elbow. A case bearing No. 208 dated 148.83 under section 302 Ipc has been registered. The dead body is being sent for postmortem so that the cause of death may be ascertained.'
Along with this inquest report statement of one Dbarambir son of Hans Raj, resident of 57-A, Kamla Market, was also sent which reads as under :
' I reside at the aforesaid address. I own a shop under the name and style of Rawal Radios. Tonight, I was sleeping in my quarter along with my children. Shri Brij Lal the. deceased had been putting up over there for the last about 20 years. He used to sleep here also. Tonight, he was also sleeping here I had seen him at about 9.10 P.M. though I had gone to sleep at 11 P.M. In the morning at about 5 a.m. I was told by the wife of the servant that Babuji had passed away. During night I did not hear any kind of quarrel taking place nor have I seen anything.'
(4) We have deliberately made reference to the story available with the prosecution on 14th of August 1983 even at the time of sending of the inquest report, and, according to the statement of Dbarambir, which is appended with the inquest report, the only thing that Muni Devi wife of Dubai had told Dharambir, was that Babuji had passed away.
(5) The prosecution story as unfolded at trial is that on the night of the incident, while Public Witness .9 Muni Devi and her husband Public Witness . Ii Dubai were sleeping inside the room, the deceased was sleeping on the terrace. According to Muni Devi (P.W. 9), on the night of incident at about 1.30 to 2 p.m. she got up for urination and saw two persons standing near the cot of the deceased. According to her, she knew Ravinder Kumar accused whom she identified in the court. She says that on seeing her, the accused Ravinder Kumar got down along with the other boy through the stairs and, she came back to the room and after bolting the room she went to sleep in the room where her husband was also sleeping. According to her the deceased used to sleep on the terrace throughout the year ever since she came to occupy the house. She further states that at 5 am. when she got up she called out the deceased but there was no response and then she woke up her husband Dubai (Public Witness 11) and when her husband tried to woke up the deceased he found him dead. It was thereafter that her husband informed the son of the deceased who made a report to the police after reaching on the spot. According to her she identified Ravinder Kumar accused in the street light. She admits that her statement and the statement of her husband was recorded on the following day and she does not know where Ravinder accused resides. Now this testimony is followed by the statement of Public Witness . 11 who has made almost a similar statement as his wife. Muni. According to him, his wife Muni had told him that when she had got up for urination in the night she had seen two boys standing near the cot of the deceased but she did not tell the names of the boys and had told him that one of them had scars of 'Phunsies'. This, in fact, is supposed to be one of the circumstances which, according to the prosecution, will show involvement of accused in this crime.
(6) It is, thereforee, necessary for us to make a reference to the testimony of Public Witness .18 S.I. Kale Ram, who is supposed to have investigated this case, as he has disclosed certain very important facts. He admits that it was he who filled up the form Ex. Public Witness 18/A while conducting inquest proceedings under section 174 and also wrote the application Ex.PW 18/B requesting for the post-mortem of the dead body. He also admits that along with it he enclosed the facts of the case marked Ex. Public Witness 18/D and statement of Surinder Kumar Ex. Public Witness 15/B and that of one Dharambir Rawal Ex. Public Witness l8/E. According to him, on 16th of August 1983 at about 6 05 a.m. he along with S.H.O. and one S.I. Sahdev Singh, A.S.I. Kanshi Ram and 2 or 3 constables left for the investigation of the case. He came to the quarter of the deceased where he was met by Vijay Kumar, Kishore Kapur and Dubai. According to him, since Public Witness Dubai knew the accused Ravinder he took him along with Vijay Kumar and Kishore Kapur for the search of the accused and for identification. He goes on to state that at about 7 a.m. when they were passing near the shop Nos. 150-151 of Kamla Market. -New Delhi, Public Witness . Dubai pointed out towards accused Ravinder .Kumar and thereafter he was caught and interrogated. He disclosure statement Ex.PW 11/C was recorded and on search 'a silver ring studded with stone dark black colour Ex. P-2 was recovered and seized. This according to him, was recovered from the right pocket of Ravinder's pant, and that it was at this time that Smt. Muni wife of Public Witness . Dubai identified the accused Ravinder having seen him last night near the deceased's cot and he recorded the statement of Muni. Further, he goes on to state that on the disclosure of Ravinder they went to the Jhuggi of accused Pappu who was arrested and interrogated and his disclosure statement Ex.PW I I/B was recorded. According to him, accused Pappu then took them inside his Jhuggi and produced a silver ring studded with white stone .marked Ex. P-3. He has also stated that thereafter accused Ravinder pointed out towards the accused Muna and on his search a stainless steel chain made in Japan marked Ex.P-4was recovered from the right side pocket of his pant and thereafter accused Prakash was arrested on the pointing out by accused Ravinder and from his search wrist watch made of Omex with steel chain Ex. P-5 was recovered from his right front pocket. According to him. all these articles were identified by Vijay Kumar (P.W.13) son of the deceased and he recorded the statements of P. Ws in this regard. He admits that apart from Vijay Kumar son of the deceased, Dubai the servant of the deceased and Kishore Kapur, no public witness was joined by him at the time of disclosures and recoveries.
(7) The testimony of the investigating officer clearly goes to indicate that prior to 16th of August 1983 when the accused were arrested tbe statement of Muni Devi Public Witness was not in existence. We have already made a reference to the inquest report and to the first information lodged by Surinder Kumar son of the deceased. In none of these documents is there any mention of the fact that Muni Devi had seen accused Ravinder. Kumar with one more boy on the night of the incident standing by the side of the deceased's cot. After Surinder Kumar son of the deceased of the incident and after he reached on the spot it was quite natural for him not only to ask Dubai and his wife Muni as to how it had happened but also to examine the dead body of his father. The court, in fact, is told by him that he did examine the dead body of his father and found certain injuries but strangely he has not noticed the fact that the wrist watch and the rings and the chains which his father was wearing were missing. This is so despite these witnesses telling the court that they had seen the deceased wearing these articles. There is no mention of anything missing in the first information report or in the brief facts which have gone with the inquest report nor is there any mention in these documents of the fact that Muni Devi (P.W. 9) wife of Dubai had seen Ravinder accused with one more person. Strangely, Dubai the husband of Muni Devi was not given the name of Ravinder by his wife but was only told that the boy was identified by her as he had Phonies on his face.lt is not possible for us to believe that when Muni Devi got up for urination, unbolted the door and came out to the terrace the accused would be standing near the cot. As a matter of natural course of conduct, once they realise that the door is being unhinged they would have escaped from the scene. More important than that is the fact that Muni Devi is said to have made a' statement in this regard for the first time on 16th of August 1983, that is almost more than 2 days after the incident. This testimony of Public Witness . 9 Muni Devi and Public Witness . 11 Dubai her husband, in our view, is not reliable and has to be discarded from consideration.
(8) Having come to this conclusion that this piece of circumstantial evidence is not worth any reliance, there is, in fact, no need for us to dwell on other circumstances which relate to the seizure of wrist watch, blood pressure chain and the silver rings which are stated to have been recovered each from every accused at the time of their arrest. The prosecution claims that these belonged to the deceased and he was wearing these on the night of the incident. The 'contention of the prosecution is that since these articles shortly after the incident were found in the possession of the accused persons they alone are connected with the commission of this crime. We have before us the evidence of Dubai (P.W. II), Surinder Kumar (P.W. 15), Vijay Kumar (P.W. 13) and Kishore Kapur (P.W. 12) who have-indeed testified to the effect that these articles were recovered from the possession of the accused at the time of their arrest and that these articles belonged to the deceased, we have also the statement of Public Witness . 18 Ram Lal, Goldsmith, testifying that the rings were prepared by him for the deceased. We have also before us the statement of Public Witness . 16 ShriR.S. Mala. Metropolitan Magistrate, to the effect that on a test identification parade these articles were identified by the witnesses as that of the deceased. But this evidence by itself is not sufficient to lead to the conclusion that the accused are connected with the murder of the deceased. The most important fact is that there is no mention in the F.I.R. that at the time of the commission of crime these articles were removed from the person of the deceased. This fact also seems to have surfaced for the first time on 16th of August 1983 when the accused were caught. Assuming that these articles were being worn by the deceased on the date of incident this circumstance by itself is not sufficient for the conclusion that the accused are connected with the murder of the deceased. This circumstance by itself at the most would only indicate that the accused were in possession of stolen property.
(9) We have found in this case that there are in all two circumstances which have been pressed into service for proving the guilt of the accused. The first circumstance is that Ravinder Along with one more boy was seen standing by the cot of the deceased on the night of the incident by Public Witness . 9. We have at great length indicated that this piece of evidence is not truthful nor has this circumstance been proved beyond any reasonable doubt. The other circumstance is that the two rings, the wrist watch and the blood pressure chain belonged to the deceased and soon after the incident these were found in the possession of the accused. This circumstance by itself,as. we have indicated, does not connect the accused with the commission of murder. It at the most shows that the accused were in possession of stolen property.
(10) The law in respect of the circumstantial evidence is well settled. circumstantial evidence can only be acted upon if each and every circumstance is individually and conclusively proved and the circumstances so proved must collectively lead to the only conclusion that the accused persons are guilty of the crime. The proved circumstances must form a chain so complete by itself that they should result in the only conclusion of being consistent with the guilt of the accused. Here in this case we find that the first circumstance is not proved and in the absence of proof of the first circumstance in this case there is no justification for jumping to the conclusion that the accused are connected with the commission of this crime. The order proved circumstance, in our view, does not justify a belief that the accused are connected with the commission of this murder. In fact, that would be a very unsafe conclusion.
(11) In the light of these observations, we allow these four appeals and set aside the conviction and sentence passed against the appellants by the order impugned. The appellants shall stand acquitted of the charges.