R.S. SODHI, J.
1. Criminal Appeal Nos.16 of 2003 and 191 of 2003 seek to challenge judgment and order of Additional Sessions Judge, New Delhi, in Sessions Case No.29 of 1999, arising out of F.I.R. No.245 of 1999, Police Station Parliament Street, whereby learned judge vide his judgment dated 9.8.2002 has held the appellants, namely, Sanjay Thakur and Sabu Lal, guilty for the offence punishable under Section 458 IPC read with Section 302 IPC. Further vide his order dated 20.8.2002, he has sentenced the appellants to undergo imprisonment for seven years for the offence under Section 458 IPC together with fine of Rs.5,000/- to each of the appellants and in default of payment of fine, to undergo further Simple Imprisonment for 1 1/2 years. He also sentenced the appellants to imprisonment for life for offence punishable under Section 302 IPC and fine of Rs.2,000/- each and in default of payment of fine, further Simple Imprisonment for one year each.
2. Brief facts of the case as have been noted by learned Additional Sessions Judge in his judgment under challenge are as follows:.that on 18.7.99, the information regarding dead body of deceased was received vide DD No.5A in the police station from one Shri Sushil Kumar Pandey, who was working as security guard in the Jeevan Deep Building. He informed the police that he was on security duty from 8.00 a.m. to 8.00 p.m. and on 18.7.99 when he reached office at 8.20 a.m. and entered the office, he saw that his colleague Om Prakash Agnihotri, who was on duty that night from 8.00 p.m. to 8.00 a.m., was lying dead and he had come to report the same. On this information, Inspector T.R. Mongia, along with other Inspector Gurmail Singh, Tej Bahadur, Constable Anil Kumar, proceeded to the scene of crime. There they found that Om Prakash Agnihotri was lying dead. The telephone was lying broken and the receiver was lying separately. An iron almirah was appeared to have been attempted to forced open with an axe like instrument. Both the hands of deceased Om Parkash Agnihotri were tied with telephone wire and the neck was tied with a red colour plastic rope. They found blood all around with various injuries on the deceased. Police tried to locate some eye-witness, but they failed. Police registered a case under Section 302/460/380 read with Section 511 IPC.
During investigation, chance finger prints were also lifted from various objects in the room. The scene was photographed and various other objects fount at the spot were taken into possession and postmortem report shows that death was due to asphyxia and venous congestion as a result of constricting force around the neck due to ligature strangulation. All the injuries were found to be ante mortem in nature and fresh in duration. During investigation of the case, police came to know that deceased Om Prakash Agnihotri was also doing a business of Courier and every night Babu Lal and his brother Sabu Lal, who were also doing the business of Courier, used to come to meet Om Prakash and police learnt that on the night intervening of 17/18.7.99 at about 10.00/10.30 p.m., Babu Lal, his brother Sabu Lal and another person Sanjay Thakur, came to the deceased in his office of EID Parry (India) Ltd. On 26.7.99, accused Sabu Lal was interrogated and during investigation, he confessed the offence of committing murder of deceased Om Prakash with the help of Babu Lal and Sanjay Thakur. They were arrested. Accused Sabu Lal pointed out the place of occurrence and got recovered the weapon of offence. It was taken into possession. A dagger was also recovered. The other co-accused Sanjay Thakur, was arrested on 1.8.99. Their blood samples were also taken. Accused Sabu Lal had admitted involving of four persons in the act but accused Sanjay Thakur named only three persons. One witness, Ravinder Nath Mishra, informed that only Babu Lal, Sabu Lal and Sanjay Thakur along had come in the building on the night of 17/18.7.99. Chance prints were sent to Finger Print Bureau for comparison. The report from Finger Print Bureau shows positive for the finger prints of Sabu Lal and Sanjay. The accused Babu Lal could not be arrested and he was declared P.O. After all this investigation, case was sent to the Court for trial. The case is based on circumstantial evidence as police did not find any eye-witness, who had seen the accused persons committing the murder.
3. Learned Counsel for the appellants submit that the trial court has tabulated the circumstantial evidence into last seen, matching of finger prints of the accused with chance prints, recovery of weapons from both the accused, motive of business dealings having turned sour and the opinion of the doctor to the effect that the knife so recovered could have caused injuries on the deceased but has failed to correctly evaluate the material on record and its evidential value in proving the above circumstances. Learned Counsel contends that none of the circumstances mentioned above have been proved nor, taken collectively, can make a chain so complete as to hold the accused guilty of the offence.
4. Learned Counsel for the State, on the other hand, contends that the trial court has meticulously gone into the entire record to hold that each circumstance stands proved in itself and taken together, form a complete chain leading to the inference that it was accused persons and none else who had committed the murder of Om Prakash Agnihotri.
5. Prosecution in order to establish its case examined as many as 26 witnesses. Of these, PW-1 is Constable Jagdish Prashad, who was on duty at RML Hospital where the dead body was received vide memo Exhibit PW 1/A. PW-2, Constable Umesh Kumar, went with the Investigating Officer to the scene of crime and on getting information, took rukka from the Investigating Officer to get the case registered. PW-3, Retired Wing Commander Rakesh Sant, is a witness of recovery at the instance of appellant, Sabu Lal. He proved the sketch of the dagger, Exhibit PW 3/A and the seizure memo, Exhibit PW 3/B. PW-4, Ravinder Nath Mishra, is a witness of Babu Lal and Sabu Lal regularly visiting the deceased. PW-5, Dr. Kalyani, C.M.O., RML Hospital, examined the deceased, Om Prakash Agnihotri and proved MLC, Exhibit PW 5/A. PW-6, Santosh Tiwari, brother-in-law of the deceased, identified the body vide memo Exhibit PW 6/A. PW-7, Dr. G.K. Sharma, Director of Forensic Medicine, Lady Harding Medical College, conducted the postmortem on the deceased and proved his report, Exhibit PW 7/B. PW-8, Smt. Kusum Lata, wife of the deceased, Om Prakash Agnihotri, deposed to the business dealings between her husband, Sabu Lal and Babu Lal. She also deposed to the threat made out to the deceased by Sabu Lal and Babu Lal. PW-9, Inspector Tej Bahadur Singh, remained associated with the investigation along with S.I. Gurmail Singh, Constable Umesh Kumar and Constable Amit Kumar. PW-10, Rajiv Grover, is a formal witness, who proved the attendance sheet, Exhibit PW 10/A. PW-11, Avdesh Kumar, compared the chance prints and proved his report Exhibit PW 11/A. PW-12 is Constable Anil Kumar, who took the dead body of the deceased to RML Hospital. PW-13, Constable Rajnish Kumar, delivered the copy of the F.I.R. to senior officers as also to learned Metropolitan Magistrate. PW-14 is S.I. R.L. Mishra, who remained associated with Inspector T.R. Mongia, who is a witness to the disclosure statement of Sabu Lal. PW-15, Constable Sant Lal, is the photographer and proved Exhibit P-1/1-31 and its negatives as Exhibit P-2/1-31. PW-16 is S.I. Gurmail Singh, one of the Investigating Officers'. PW-17 is S.I. Mahesh Kumar, Draftsman, who prepared the site plan, Exhibit PW 17/A. PW-18 is Constable Narender Singh, who is a formal witness and proved, Exhibit PW 16/H. PW-19, Constable Sewa Ram, is a formal witness. PW-20, Head Constable Bale Singh, was Moharar Head Constable, Malkhana and handed over the case property to S.I. Gurmail Singh. PW-21, Head Constable Shish Pal, was posted as Moharar Head Constable, Malkhana with whom the Investigating Officer deposited the exhibits. He made entries in his register No.19. PW-22, S.I. Yog Raj Dogra, is a witness to the recovery of weapons at the instance of Sanjay Thakur. PW-23, P.K. Ranjan, is a photographer from Finger Print Bureau. He proved Exhibit PW 17/A. PW-24 is Constable G. Ganeshan. He was also working as a photographer at Finger Print Bureau and proved the developed prints as Exhibit PW 11/E and PW 11/C. PW-25 is Head Constable Samarvir Singh, who recorded the F.I.R. No.245 of 1999, Exhibit PW 25/A. PW-26 is Inspector Tilak Raj Mongia, S.H.O. and Investigating Officer of this case.
6. PW-3, Retired Wing Commander, Rakesh Sant, states that on 26.7.1999, he was summoned to join investigation. Accused, Sabu Lal, led the police party to Jeewan Deep Building to the office of Paric India Ltd. and pointed out to the toilet where the weapons were hidden. He got recovered one hacksaw with five blades. From top of the toilet, a dagger was recovered and taken into possession. In cross-examination, the witness states that he was summoned at 6 p.m. and reached the police station where after, the police officials along with Sabu Lal led them to the office of Paric India Ltd. This witness has been pressed into service to prove that on 26.7.1999, Sabu Lal had got recovered a dagger together with hacksaw and its blades from top of the toilet. A sketch of the dagger has been exhibited as PW 3/A. Another recovery of the same dagger appears to be made at the instance of Sanjay Thakur on 1.8.1999. The witness of recovery of this dagger is PW-22, S.I. Yog Raj Dogra, who deposes that on 1.8.1999, he was posted at Police Station Parliament Street and on that day, he along with Inspector T.R. Mongia, PW-26, S.H.O., Parliament Street, arrested accused Sanjay Thakur @ Snahei, conducted his personal search as also recorded his disclosure statement, Exhibit PW 16/F. Appellant, Sanjay Thakur got recovered a dagger from the parchatti of toilet of the office of Parry India Ltd. in Jeewan Deep Building. He also got recovered hacksaw and blades from the ventilator of the same toilet. The witness made amendments and said no recovery was made at the instance of Sanjay Thakur. However, in statement under Section 313 of Code of Criminal Procedure, when the case of the Prosecution was put to the accused persons, it appears as if Sanjay Thakur had got recovered the dagger and its blades on 1.8.1999. This is also reflected from the judgment where the trial court holds that 'PW-22 is S.I. Yog Raj Dogra. He is the witness of arrest of accused Sanjay Thakur, who got recovered the weapon of offence from the toilet of Jeevan Deep Building...'. The trial court, while dealing with the circumstance (c), namely, recovery of weapons has held as follows:
(c) The circumstantial evidence of IO and PW-22, SI Yog Raj Dogra, who proved the disclosure statements as Ex. PW 16/F and pointing out memo Ex. PW 16/G by accused Sanjay Thakur and his arrest. He has also got recovered a knife from the parchatti of toilet and from the ventilation of toilet got recovered iron blade and hacksaw.
7. In the same breathe, the court holds that PW-26, Inspector T.R. Mongia, proved disclosure statement Exhibit PW 14/A of accused Sabu Lal and recovery of five blades from the parchatti of toilet; the disclosure statement of accused persons leading to the recovery of weapons of offence, that is, hacksaw, Exhibit P-1, five blades of hacksaw, Exhibit P-2/1-5 and dagger, Exhibit P-3. These weapons of offence were recovered at the instance of accused persons. However, PW-3, Retired Wing Commander, Rakesh Sant, in his deposition, talks of recovery of a dagger from top of the toilet and does not talk of any parchatti or ventilator. He talks of a recovery on 26.7.1999 while PW-22, S.I. Yog Raj Dogra, talks of recovery on 1.8.1999. The recovery is of the same article, attributed to both the accused persons. Such a finding, with great respect, cannot be sustained on simple logic, namely, that the same recoveries cannot be effected on 26.7.1999 as also on 1.8.1999. The very fact that the recovery of weapons has been foisted on Sabu Lal on 26.7.1999 and Sanjay Thakur on 1.8.1999, makes the recovery of the dagger and/or hacksaw or blades doubtful. The finding returned by the trial court on this point is thus unsustainable.
8. The next circumstance which has found favor with the trial court is the matching of chance finger prints with the specimen finger prints of the accused persons. The trial court has based its reasoning on the basis of the report submitted by the Finger Print Bureau that the chance finger prints and the specimen finger prints, sent by the Investigating Officer, match. However, on a closer analysis of the material on record, we find that the Investigating Officer nowhere states that he has sent specimen finger prints of the accused persons for examination but is content in saying 'On 5.8.99, I sent eight chance prints to the Finger Print Bureau for taking their report and I obtained the report along with the developed chance prints, developed chance prints are Exhibit PW 11/A, B, C and D and E which were placed by me on the record and report is Exhibit PW 11/A.' He does not state as to who took the specimen finger prints of the accused persons, when and where they were taken and who forwarded the same to the Investigating Officer. There is also nothing on record to show that the Investigating Officer himself took the specimen finger prints of the accused persons. The report of the Finger Print Bureau comparing finger prints sent by the Investigating Officer do not, in any manner, connect the accused with the crime. Merely stating in the report that the finger prints, purportedly of accused persons, match with the chance prints, is of no consequence without evidence proving that the finger prints of the accused persons were, in fact, taken in the first place. The report of the Finger Print Bureau, Exhibit PW 17/A cannot be pressed into service as a circumstance connecting the accused with the crime. The trial court's reliance on Exhibit PW 17/A to hold that the circumstance of finger prints is a circumstance proved against the accused is not sustainable.
9. Another circumstance which the trial court held stood proved against the accused is that on the night intervening 17/18.7.1999, Babu Lal and Sabu Lal were seen coming upstairs at about 10-10.30 p.m. by PW-4 to meet deceased, Om Prakash Agnihotri and could be used as a link in the chain of circumstances. Examining the material on record on this aspect, we find PW-4, R.N. Mishra, has stated that on 17/18.7.1999, he was present at the ground floor near the staircase of Jeevan Deep Building and was on duty from 8 p.m. He knew Om Prakash Agnihotri as Om Prakash Agnihotri was working as a guard. One Sabu Lal used to come to meet Om Prakash Agnihotri in the said Building and his brother Babu Lal also used to come to meet Om Prakash Agnihotri. Babu Lal and Sabu Lal were working as partners with Om Prakash Agnihotri in the business of courier in the area of New Delhi Railway Station, Paharganj. The witness attended the opening ceremony of the office at Paharganj. This witness does not support the Prosecution's case that Babu Lal and Sabu Lal visited Om Prakash Agnihotri on the night intervening 17/18.7.1999. Reliance placed on this witness to prove the circumstance of last seen cannot be sustained. The witness nowhere states that he saw Babu Lal and Sabu Lal on the night of 17/18.7.1999. A vague statement that Babu Lal and Sabu Lal used to visit the deceased at evening times cannot be substituted to mean that they came on 17/18.7.1999 at 10:30 p.m. to visit the deceased, Om Prakash Agnihotri.
10. Another circumstance which the Prosecution has tried to prove is motive of the accused persons to commit the crime. This is sought to be proved from the statement of PW-8, Smt. Kusum Lata, who deposes that the accused persons, Sabu Lal and Babu Lal, were doing business with the deceased. The business ran into rough waters and there was unpleasantness over unpaid dues. Besides the fact that this is a mere bald statement, without any corroborative material, yet if we were to accept that Babu Lal and Sabu Lal had motive, this by itself, is not conclusive evidence that they had committed the murder of Om Prakash Agnihotri.
11. Having carefully gone through the material on record and as discussed above, we find that the judgment and order on sentence dated 9.8.2002 and 20.8.2002 respectively, cannot be sustained. They are set aside and the appellants herein are acquitted of all the charges framed. Criminal Appeal Nos.16 of 2003 and 191 of 2003 stand allowed. The appellants, who are in jail, shall be set at liberty forthwith unless wanted in any other case.
12. Before parting with this case, we find that the fees of the amices was required to be settled at the hearing of the appeals. The work put in by the amices in presenting these appeals before us and analyzing the record justifies a fee of Rs.10,000/- (rupees ten thousand) each to Mr. Rajesh Mahajan, Advocate, in Criminal Appeal No.16 of 2003 and Mr. Sudarshan Rajan, Advocate, in Criminal Appeal No.191 of 2003.