R.S. Sodhi, J.
1. Criminal Appeal Nos. 101 and 102 of 2006 seek to challenge judgment and order of Additional Sessions Judge, New Delhi, in Sessions Case No. 54 of 2004 arising out of F.I.R. No. 1386 of 1998, registered at Police Station Malviya Nagar, whereby the learned judge vide his judgment and order dated 28.01.2006 held the appellants, namely, Lakhan Singh and Hargovind, guilty for an offence under Section 396 IPC. Further by his order dated 31.01.2006, has sentenced both the appellants to Rigorous Imprisonment for life together with fine of Rs. 5,000/- each and in default of payment of fine, further Rigorous Imprisonment for six months under Section 396 IPC.
2. Brief facts of the case as have been noted by the learned judge in judgment under challenge are as under:.that deceased Narender Prashad Jain, aged 69 years and Ms. Inderani Jain, aged 65 years used to reside alone at M-78, Saket, New Delhi. PW-1, Devender Kumar used to assist them in the house hold work by visiting their house daily in the morning and by staying over there till 4.00/5.00 p.m. On 26.12.98 at about 10.30 a.m. when PW-1 reached H. No. M-78, Saket, New Delhi, he found the lock of the house broken, one plastic bag lying on the table and chairs lying scattered. PW-1 informed PCR and PW-4, Smt. Sarita Jain, daughter of the deceased Narender Prashad Jain about these facts. This telephonic information was received by PW-25, Lady Ct. Meena, who conveyed the same on wireless to PP Saket which was recorded vide DD No. 7, Ex. PW-3/C-1. On receipt of DD No. 7, SI Virender Jain along with other police officers went to H. No. M-78, Saket, New Delhi where he found the sliding door of the house was open, almirahs in broken condition, articles lying scattered in the bed room and dead body of Narender Prashad Jain and Inderani Jain lying on the bed and the bed sheet etc., having blood stains. Statement of PW-1 was recorded by Insp. Azad Singh, on the basis of which rukka was sent and FIR No. 1386/98 under Section 460 IPC was registered at PS Malviya Nagar. In the meantime, Smt. Sarita Jain (PW-4) and Smt. Sunita Jain (PW-14) daughters of the deceased also reached who found all the cash, three pairs of silver anklets, two ladies watch of which one was Titan make and another Foreign make, one gold mangalsutra, one gold chain of PP Jewellers make, four gold bangles, one camera Pantex make, one search torch, one Casio digital diary, nose pin, ear tops, one gold ring with red stone (gents) missing. The crime team was summoned. Photographs of the scene were taken. A police dog named Jeny led the police party to the graveyard near ganda nala towards North where two freshly broken branches of tree were found lying. The dog took a round of the graveyard and did not go beyond that. A broken bolt of the sliding door, one blood stained pillow of light green colour, one blood stained pillow cover of white colour, one blood stained double bed sheet, one blood stained double bed sheet of Mehandi colour, one blood stained ladies sweater blue colour, two blood stained quilt covers, blood stained earth control, some broken pieces of wooden lying on the bed were taken into possession after preparing separate sealed pullandas sealed with the seal of AS. The dead bodies were sent to mortuary, AIIMS for postmortem. Dr. R.P. Sharma (PW-30) conducted the postmortem on the dead bodies and submitted his report. As per the postmortem report Ex. PW-3/A on the dead body of Narender Prashad Jain the cause of death was head injury. The doctor found that in the head wound some chop sticks of wood were found. As per the postmortem report Ex. PW-3/B of Inderani Jain the cause of death was head injury. The dead bodies were identified by PW-4. The sealed parcels with seals intact were deposited in the malkhana. The investigation was transferred to SI R.S. Gill (now deceased). The sealed parcels were sent to FSL, Malviya Nagar. The doctor handed over some sealed parcels to the IO which were also sent for examination of FSL, Malviya Nagar. The freshly cut two tree branches found at the graveyard were also taken into possession and were sealed in a pullanda and were sent to FSL, Malviya Nagar. On 26.12.98, PW-12, Pratap Narain Singh was Chowkidar of M-Block, Saket but he did not perform his duty due to illness and instead his sone Nilesh (PW-15) performed the duty of Chowkidar who during his duty saw that seven persons carrying dandas were going towards kabristan near M-Block, Saket. PW-15 informed about this fact to PW-36 Rama Rai Guard of the House No. M-4, Saket. Statements of all these persons were recorded under Section 161 Cr.P.C. In January, 99, PW-29, Inspector Mahipal Singh went to District Guna, MP under the orders of DCP (South District), who received a secret information in village Khejra, P.S. Dharnawada, District Guna, MP that some persons who had quarreled with Natto, were celebrating the theft of a goat of Natto. He further came to know that the names of these boys were Suraj, Vijay, Hargovind, Jeeva, Sikander, Lakhan and Ghanshyam. PW-29 informed S.I. Sidhnath Singh, area SHO, about this secret information. SI Sidhnath verified this information and came to know that these persons armed with deadly weapons would proceed towards jungle for committing some crime. On 23.1.99 at about 4.30 a.m., PW-8, S.I. Sidhnath Singh, then SHO, P.S. Dharnawada, District Guna, MP organized a raiding party consisting of the police officers of MP and three public persons, namely, Sunil, Jai Prakash and Bijender for apprehending the persons from the jungle of village Khejra as per the secret information received. Accused Hargovind, Lakhan and Mobatia were apprehended and remaining persons managed to escape. These three persons were later on arrested under Section 307 IPC and 25 of Arms Act in case FIR No. 11/99 of P.S. Dharnawada, District Guna, MP. Accused Hargovind and Lakhan are alleged to have made a disclosure statement that they had broken the channel gate of Saket along with 7 other persons and had committed a robbery and kept the stolen articles in their houses. Lakhan is alleged to have disclosed that he had kept the robbed wrist watch in his house and could get the same recovered. Accused Hargovind is alleged to have disclosed that he had kept the robbed gold chain having mark of PP Jewellers in a polythene in his house and could get the same recovered. Accused Lakhan is alleged to have got recovered one Titan Watch from his house kept in a box which was taken into possession vide memo Ex. PW 8/C. Accused Hargovind is alleged to have got recovered one gold chain from his house which was taken into possession vide memo Ex. PW 8/D. Both these accused were arrested by PW 8, SI Sidhnath of MP Police and were produced before the court of Judicial Magistrate, Guna along with documents and allegedly recovered case property. SI Ravinder Singh Gill of Delhi Police who was in M.P. moved an application before the court of Shri R.C. Varshney, JMFC, Radho Garh, Guna (MP) for interrogation of the accused. Both these accused were formally arrested with the permission of the Court by SI Ravinder Gill. SI Ravinder Gill who also handed over the relevant documents and the gold chain and the Titan wrist watch, sealed with the seal of the court of JMFC, by the court of Shri R.C. Varshney, JMFC, Radho Garh, Guna (MP). SI R.S. Gill moved an application in the court of concerned Metropolitan Magistrate, New Delhi with a prayer for issue of production warrants of both these accused from Guna Jail. These accused were accordingly produced by Suptd. Guna Jail for trial in this case. It is alleged that both the accused pointed out to the place of the occurrence and kabristan. SI Ravinder Gill prepared the pointing out memo of accused Lakhan of the place of occurrence vide Ex. PW 35/F and the pointing out memo of the place of occurrence by accused Hargovind was prepared vide memo Ex. PW35/E. Both the accused also pointed out the place from where they had cut down the dandas. The pointing out memo in this regard of accused Lakhan and Hargovind are respectively Ex. PW35/G and Ex. PW 35/H. The alleged recovered gold chain and Titan wrist watch were identified by PW-14, Smt. Sunita Jain, before Sh. G.S. Gupta, the then Metropolitan Magistrate, New Delhi. The IO completed the investigation and submitted the charge sheet for trial of these accused persons under Section 397/398/396/412/302/34 IPC. These accused had disclosed that five other persons, namely, Suraj, Jeeva, Sikander, Ghanshyam and Vijay were also with them at the time of committing of the offence. These five persons could not be arrested and were placed in Column No. 2 of the charge sheet. Later on, co-accused Vijay and Suraj were arrested. The Ld. Predecessor of this Court considering that there was no legal evidence to connect these persons with the crime, discharged these accused.
Charge under Section 396 IPC was framed by the learned predecessor against accused Lakhan and Hargovind to which they pleaded not guilty and the case was put to trial.
3. Prosecution in order to establish its case examined as many as 38 witnesses. Of these, the material one's are PW-15, Neelesh Kumar Singh, who was son of the Chowkidar and was performing the Chowkidari duty on 26.12.1998. He states that on 26.12.1998, he was doing his father's duty of Chowkidar in Gali No. 50, M-Block, Saket and at about 1:05 a.m., he went to answer the call of nature and saw 5-7 persons going by the side of nalla at low level who on seeing him stood up and asked him to run away and not to disclose their presence. The witness informed his father who along with him came to the place where he had last seen 5-7 persons but there was nobody there. The witness goes on to state that he cannot identify any of the accused persons due to darkness. PW-32 is SI Gyanender Singh, the Finger Prints Expert, who deposes that on 24.3.1999, he examined the chance prints and found that they were not identical to the finger/palm prints of the persons mentioned in the report. The chance prints were either hazy partial or smudged and did not disclose sufficient number of ridges to make a positive comparison.
4. PW-8, SI Sidh Nath Singh, is the next important witness who states that on 23.1.1999, he was SHO, Police Station Dharnawada, District Guna, M.P., on which day he arrested Lakhan Singh, Hargovind and Mobatia in case F.I.R. No. 11 of 1999 of Police Station Dharnawada, District Guna, M.P. On interrogation, the accused made a disclosure that month prior to their apprehension, they had committed a robbery in Saket and that they could get the gold chain as also the watch recovered. The witness goes on to state that disclosure was recorded vide memo Exhibit PW 8/A in case of Hargovind and in case of Lakhan Singh vide memo Exhibit PW 8/B and that the recovery of the watch was made from Lakhan Singh vide memo Exhibit PW 8/C and the gold chain was recovered from Hargovind vide memo Exhibit PW 8/D. He also deposes that he recorded the statements of Sunil Jain, Bijender and Balu Ram and that he handed over these articles to the Investigating Officer of the present case on the orders of the Magistrate of Madhya Pradesh. In cross-examination, the witness states that the accused persons were arrested on 22.1.1999. The disclosure statement of both the accused were recorded at around 9:35 p.m. of the same day and recoveries were effected soon thereafter. He categorically denies the suggestion that the Delhi Police met him in the Police Station at Madhya Pradesh on 23.1.1999. He also deposes to the effect that the Delhi Police met him for the first time on 7.1.1999. PW-14, Smt. Sunita Jain, identified the articles in the Test Identification Parade held at Delhi before the Magistrate.
5. Learned Counsel for the appellants contends that the trial court in order to arrive at its conclusion returned a finding that the prosecution's case is based on circumstantial evidence and in order to prove the same, relied upon six circumstances. Learned Counsel submits that amongst the circumstances relied upon by the trial court, there is none that would implicate the appellants. He consequently submits that the trial court has gone wrong in convicting the appellants for the offence charged primarily on the so-called recovery pursuant to disclosure. Learned Counsel further submits that this solitary circumstance even if proved, cannot lead to the deduction that it was the appellants and only appellants who had committed the dacoity and murder.
6. Learned Additional Public Prosecutor for the State, on the other hand, contends that the circumstances relied upon by the trial court have been proved beyond doubt and taking them individually, as have been proved and read together, complete the chain of circumstances which leads to the only hypothesis that it were the accused and none others who had committed the crime for which they have been charged.
7. We have heard learned Counsel and with their assistance gone through the material placed before us. We find that the trial court has relied upon the following circumstances which, according to the trial court, needed to be proved by the prosecution:
a) That during the relevant time, PW-12, Shri Pratap Narain Singh, r/o M-27, Saket was the Chowkidar of M-Block, Saket and on the night of 26.12.98 he asked his son Neelesh to perform the duty of a Chowkidar in the area as he was not feeling well.
b) That PW-15, Neelesh Kumar, performed the duty of Chowkidar on the night of 26.12.98 and at about 1.05 a.m., he went for latrine near the Nala of M-Block, when he saw 5/7 persons going by the side of Nala in suspicious circumstances and they asked him to run away and not to disclose their presence.
c) That PW-15, Neelesh Kumar, told PW-36, Rama Rai, the guard at H. No. M-4, Saket about the presence of seven persons near Kabristan and then went to his house M-27, Saket and immediately informed his father also about the presence of seven persons in suspicious circumstances near Kabristan.
d) That on 26.12.98, the police dog led the police party towards M-Block Nala and after covering 400/500 meters, the dog led the police party inside a graveyard and after taking a round in the graveyard came towards the Nala.
e) That in the graveyard some freshly cut tree branches were found.
f) Nine chance prints of fingers and palm of different persons were found on one steel almirah, one steel almirah with mirror and one wooden almirah.
8. The first circumstance, according to the trial court, which is material is that PW-12, Sh. Pratap Narain Singh, who asked Neelesh Kumar to perform his duty as Chowkidar. This circumstance even if proved, cannot certainly lead to any deduction. The next circumstance relied upon by the trial court is the statement of PW-15, Neelesh Kumar Singh, that he saw 5-7 persons going by the side of nalla in suspicious circumstances. As already noted above, PW-15 does not recognize/identify the accused persons as being one of the 5-7 persons along with the side of nalla under suspicious circumstances. The next circumstance is that PW-15 informed PW-36, Rama Rai, of the seven persons near the kabristan and the other circumstance is that the dog had lead the police to M-Block nalla and the graveyard. The other important circumstance relied upon by the trial court is that chance prints were lifted to which, however, PW-32, SI Gyanender Singh, states that the chance prints cannot be deciphered to match those of the accused persons.
9. The above circumstances, obviously do not form a chain much less a complete chain that would lead to the hypothesis that it were only the accused and none others who could have committed the dacoity and murder. The mainstay of the prosecution's case as has been found by the trial court is that the accused made a disclosure statement to PW-8, SI Sidh Nath Singh, and thereafter lead the police party at Madhya Pradesh to get recover a gold chain as also a wrist watch. It is this watch and the gold chain which were identified by PW-14, Smt. Sunita Jain, to be belonging to the deceased persons.
10. Examining the disclosure statement and the recoveries pursuant thereto, we find that the disclosure statements as also the recovery memos are dated 23.1.1999 whereas PW-8, SI Sidh Nath Singh, in his testimony states that the disclosure statement as also recoveries were effected on 22.1.1999. We also find that the Delhi Police has recorded the disclosure statements of the accused persons vide memos Exhibit PW 26/3 and PW 26/4 on 23.1.1999. All these disclosure statements have been recorded after the recovery which had been effected on 22.1.1999 as deposed to by PW-8. Another interesting facet of this case is that the witnesses to the recoveries, that is, PW-5, Sunil Jain, and PW-7, Brijesh Singh, have categorically stated that their signatures were obtained on blank sheets. They have been cross-examined by the Public Prosecutor who failed to even confront these witnesses with their previous statements. These witnesses, thereforee, reveal a sordid tale that their signatures were obtained on blank papers and that no recoveries were effected in their presence. Another revealing aspect of this case is the statement of PW-29, Inspector Mahipal Singh, who states that in January 1999, he had informed, PW-8, SI Sidh Nath Singh, Police Station Dharnawada, District Guna, M.P., in writing that the appellants herein had committed some offence in Delhi and were celebrating a 'jashn' in Guna. thereforee, the story put forth by the prosecution that it was the Madhya Pradesh Police which informed the Delhi Police pursuant to the disclosure made by the accused persons that the accused had committed the murder and robbery in Saket, would really be at crossed purposes. The disclosure statement as also the recoveries in these circumstances are not free from doubt. Once we have held that the recoveries and the disclosure statements are of no value, no other circumstance relied upon by the trial court would be sufficient to complete the chain of circumstances so as to point to the only hypothesis that the accused and only the accused had committed the crime for which they have been charged. We need hardly continue to elaborate on other pieces of evidence regarding other circumstances as the chain of circumstances with the recoveries having been disbelieved, is no longer strong or complete enough to hold the conviction of the applicants for charges framed against them.
11. In these circumstances, the case of the prosecution against the appellants miserably fails. Consequently, the judgment and conviction dated 28.1.2006 and order on sentence dated 31.1.2006 are set aside and the appellants herein are acquitted of all the charges framed. Criminal Appeal Nos. 101 and 102 of 2006 are allowed. Criminal M.B. No. 625 of 2007 also stands disposed of. The appellants, who are in jail, shall be set at liberty forthwith unless wanted in any other case.