Varun Chaudhary vs State Of Rajasthan

together and they are disposed of by this common

judgment.

2) Facts giving rise to the appeals referred to above

in a nutshell are as under:-

(a) Bhawani Singh (deceased) was an Income Tax

Officer who was posted at Ajmer and was a member of a

search party, function of which was to conduct raids on

certain persons' premises to find out whether the concerned

persons had evaded payment of income-tax.

(b) In the evening of 22nd August, 2000, the deceased

had left his residence for going to Ajmer Club with an

intimation to his son Ajit Singh(P.W.11), that he would

return by 10 p.m. As Bhawani Singh did not return till 3

midnight, Ajit Singh (PW-11) had enquired from Vasudev

(P.W.5), as to why the deceased had not returned. Vasudev

(P.W.5), had thereupon informed Ajit Singh (P.W.11), that

he had given lift to the deceased from Ajmer Club and had

dropped him near Ricoh circle, which was near his residence.

In the circumstances, Ajit Singh (P.W.11) had gone to make

inquiry near the residence of Vasudev (P.W. 5), but in the

meantime it was informed that body of the deceased was

lying near Ricoh circle which was not quite far from the

residence of the deceased. Incised wound on left side of

chin and stab wounds were found on his body and it was

found that the deceased died as somebody had attacked

him. In the circumstances, First Information Report

(Ext.P.15) was lodged around 2 a.m. and thereafter

necessary investigation was made by the Investigation

Officer (P.W. 26 ). In the course of investigation, Varun

Chaudhary- Accused No.1, Sudhir @ Bunty -Accused no.2

and Himmat Singh @ Bobby -accused no.3 were arrested. 4

(3) It was the case of the prosecution that the afore-

stated accused had committed the offence of murder by

inflicting serious injuries upon the deceased. It was a case

of circumstantial evidence as nobody had seen the

commission of the offence. It was, however, recorded in the

evidence that immediately after arrest of accused no.1 on 1st

September, 2000, and arrest of accused no.2, a knife had

been recovered from accused no.1 whereas blood-stained

clothes of Himmat Singh, accused no.3 had been recovered.

(4) The trial court had considered the facts and on the

basis of evidence recorded, accused no.1 was found to be

guilty of having committed an offence under Section 302 of

the IPC and was sentenced to undergo life imprisonment and

pay a fine of Rs. 1,000/-, in default three months simple

imprisonment whereas accused Nos. 2 and 3 were acquitted.

(5) The Trial Court had considered the fact that a

knife had been recovered from accused no.1 and in view of 5

the fact that incised wounds were found on the body of the

deceased, it came to the conclusion that accused No.1 was

guilty of the offence under the provisions of Section 302 of

the IPC. The trial court considered the evidence of Pawan

Kumar, Home Guard (P.W.3), who was on duty near the

Ricoh Circle. He had seen three persons riding on a motor

cycle around midnight. However, he could not identify the

persons who were on the motor cycle.

(6) Pooran Singh (P.W.6) , a police constable, had

also seen around same time three persons going on a motor

cycle and as there were three persons on a motor cycle, he

had given an indication to stop them by blowing his whistle

but the motorcyclist did not stop and he could not record

the full number of the motor cycle but he noticed that one

of the digits was `9' in the number of the motor cycle.

(7) Post Mortem of the body of the deceased revealed

that the following injuries had been inflicted on the

deceased:

6

i) Incised wound of 3 x 0.5 cm muscle deep on left

side of chin.

ii) Stab wound 2.5 x 0.5 cm on the lower part of the

chest on the left side.

(8) The said injuries were caused with a sharp edged

weapon and in the opinion of the doctor, the said injuries

were sufficient to cause death of the deceased. (Post

Mortem Report - Ext. 21).

(9) The trial court was of the view that the chain of

circumstances had been completed and on the said basis,

the order of conviction was passed.

(10) Being aggrieved by the order of conviction, an appeal

had been filed by accused No.1, whereas against the

order of acquittal, so far as accused Nos. 2 and 3 are

concerned, state had filed an appeal in the High

Court. The appeals had been heard together and

ultimately, after considering the submissions made on 7

behalf of the learned advocates and upon perusal of

the evidence, the High Court confirmed the order of

conviction of accused No.1. So far as accused Nos. 2

and 3 are concerned, the High Court came to the

conclusion that they were also guilty of the offence

for which they were charged and, therefore, the

appeal filed by the State had been allowed and the

findings of acquittal rendered by the Trial Court in

favour of accused Nos. 2 and 3 had been set aside

and the said accused were also convicted under the

provisions of Section 302 read with Section 34 of the

Indian Penal Code to suffer imprisonment for life and

a fine of Rs. 1,000/-, in default to suffer simple

imprisonment for three months.

Being aggrieved by the aforesaid order passed by the

High Court, the aforesaid two appeals have been filed by

accused Nos.1 and 2.

8

(11) Criminal Appeal No.705 of 2008, which pertains

to the conviction of A-1 - Varun Chaudhary, was argued by

Mr. U.U. Lalit, learned senior counsel and Criminal Appeal

No.561 of 2008 was argued by learned counsel Mr.

Sanjay R. Hegde. The learned counsel vehemently submitted

that the order of conviction is bad in law for the reason that

there was no eye-witness and there was no complete chain

of events, which would lead to the only conclusion that the

accused were guilty of the offence referred to hereinabove

and there was no possibility of their being innocent. In a

case of circumstantial evidence, it must be established

beyond doubt that except the accused, nobody else could

have committed the offence and the chain of events must be

complete in such a manner that one can come to the

conclusion that the accused was the only person who could

have committed the offence and none else. To substantiate

their case, they submitted that there was no eye witness

and only evidence which a police constable (P.W.6) had

given was that he had seen three persons going on a motor 9

cycle. Though he could not see the full number of the motor

cycle, he could notice no.'9' as one of the digits in the

number of the motor cycle. The said witness specifically

stated that he could not recognize any of the accused.

There was no identification parade so as to identify as to

whether the three accused had been noticed by the Home

Guard (P.W.3) and the Police Constable (P.W.6), who had

seen three persons on the motor cycle.

(12) Thereafter, they submitted that recovery of knife

and blood stained clothes could not have been relied upon

by the trial court or by the High Court. The said recovery

had not been duly proved for the reason that witness

Madanlal (PW.25), who had made an effort to prove the

recovery had admitted in his cross examination that he had

remained outside the premises from which the knife and the

blood stained clothes (Ext. P-7) had been recovered. It was

specifically stated by the P.W.25 that when A-1 - Varun

Chaudhary had taken the police party and the witnesses to 10

show the place where the knife had been hidden, he was

asked to remain outside the premises and the police and

accused no.1 had gone in the premises and returned with a

knife and blood stained clothes. Another witness, Bhanwar

Singh, PW.9, who was supposed to prove recovery of the

motor cycle had admitted that recovery Panchnama was

signed by him in the police station. In view of the said fact,

the trial court should not have relied upon the said

witnesses. They further submitted that the knife which was

alleged to have been recovered was never shown to the

accused or was never produced in the court. According to

them, as law laid down by this Court in Abdulwahab

Abdulmajid Baloch vs. State of Gujarat, 2009 (11) SCC

625, the weapon recovered ought to have been produced

before the court and should have been shown to the accused

but admittedly, neither the weapon was produced before

the Court nor it was shown to the accused at any point of

time.

11

(13) So far as the evidence, which pertains to the tyre

marks of the motor cycle, which was alleged to have been

used in the offence is concerned, they submitted that there

was no evidence that the marks of the tyre had been

compared with the marks which were found at the place of

the offence. In fact there was nothing to show that tyre

marks at the place of the offence and tyre marks found by

FSL Report were same.

(14) They further submitted that even at the time when

the accused were questioned by the court under the

provisions of Section 313 of the Code of Criminal Procedure,

the weapon and the blood stained clothes had not been

shown to the accused. They relied upon the judgment

delivered by this Court in Mohd. Abdul Hafeez v. State of

Andhra Pradesh, AIR 1983 SC 367, to substantiate their

case that the articles recovered must be shown to the

accused during the trial or at the time when his statement

under Section 313 of Cr.P.C. is recorded.

12 (15) They further submitted that no motive was

attributed against the accused. They fairly admitted that

though motive is not important in each and every case,

according to the learned counsel, even if one relies upon the

statement made by the son of the deceased, the deceased

might have some enmity with persons dealing in scrap as

the deceased had raided premises of some scrap dealers

and due to the said fact, some threats had also been

received by the deceased from persons dealing in scrap.

The accused were neither dealers in scrap nor there was any

evidence that at the behest of the scrap dealers, the

accused had murdered the deceased. According to the

learned counsel, in absence of any motive, in a case which

is based only on circumstantial evidence, it would not be

just and proper to convict the accused, especially when

there was no material to come to a conclusion that the

accused had committed the offence. So as to substantiate

the above submission, they relied on the Judgments

delivered by this Court in Surinder Pal Jain v. Delhi 13

Administration 1993 Crl.L.J. 1871 = 1993 SCC (Crl.) 1096 and Tarseem Kumar vs. Delhi Administration

1994 Sup.(3) SCC 367, respectively.

(16) For the aforestated reasons, they submitted that

the order convicting the accused could not have been passed

and, therefore, the appeals should be allowed and the

accused should be acquitted.

(17) On the other hand, the learned public prosecutor

made an effort to support the judgments delivered by the

High Court whereby the accused have been convicted. He

submitted that the evidence recorded by the trial court was

properly appreciated by the High Court and looking to the

reasons given by the High Court, interference with the

Order of the High Court was not called for.

(18) We have heard the learned counsel and have

considered the submissions referred to hereinabove and

relevant record.

14

(19) Upon going through the judgments relied upon by

the counsel appearing for the appellants and looking to the

evidence adduced before the trial court, we are in

agreement with the submissions made by the learned

counsel appearing for the appellants.

(20) Home Guard, Pawan Kumar (PW-3), had seen

three persons on a motor cycle. However, he stated that

he could not identify the persons on the motor cycle.

Similarly, police constable Pooran Singh (PW- 6) had stated

that around 12 midnight on 22nd August, 2000, he had seen

two persons going on motor cycle and one of them was the

deceased. After sometime he had seen another motor cycle

which was Suzuki, but he could not read complete number

of the motor cycle, but he could read one of the digits,

namely No. `9'. He whistled so as to stop the said motor

cyclist but the motor cyclist did not stop. Thereafter, he had

seen another motor cycle, being Hero Honda which had hit a

dog near Santoshi Mata Temple. It is pertinent to note that 15

the afore-stated two witnesses did not say that they had

seen any of the accused. Possibly even they did not see

faces of the three persons, who were on the motor cycle.

Possibly, in these set of circumstances, having identification

parade would be futile and, therefore, there was no test

identification parade. Thus, nobody had seen any of the

accused. So far as identification of the motor cycle is

concerned, PW-6 merely stated that he saw one digit of

registration number of the motor cycle, which was `9'. In

our opinion, on the basis of one digit of the registered

number, it would be dangerous to believe that the motor

cycle recovered, which also had digit `9' in its number, was

used in the offence. In our opinion, on such a scanty

evidence it cannot be said that the accused had been

identified or the motor cycle which had been recovered was

the one which was used by the accused at the time of the

offence.

16

(21) In our opinion, so called recovery of knife and

blood stained clothes would not help the prosecution.

Recovery of the motor cycle can not be said to be proved

because Bhanwar Singh, PW-9 admitted the fact that he had

signed the recovery panchnama in the police station

whereas another witness, Madan Lal, P.W.25 could not

establish recovery of the knife as he was not present at the

time and place from which the knife had been recovered.

Moreover, the knife was never produced before the court

and was never shown to the accused and, therefore, in our

opinion, the said evidence could not have been relied upon

by the courts below for passing the order of conviction.

(22) It is pertinent to note that there is no evidence or

even there is no reference to the fact that any one from

Forensic Science Laboratory or from the police personnel

had lifted marks of the motor cycle tyre from the place of

the offence so that the same can be compared with the tyre

marks of the motor cycle alleged to have been used in the 17

offence. Unless tyre marks are lifted from the place of the

offence and upon comparison with the tyre marks of the

motor cycle recovered are found to be the same, it cannot

be said that the motor cycle recovered was used in the

offence. So as to establish the presence of the motor cycle

at the place of the offence, the prosecution must show that

the tyre marks which were found at the place of the offence

were that of the motor cycle used by the accused. It is also

pertinent to note that marks of the motor cycle tyre which

were received by the FSL were not in a sealed condition.

Aforestated facts clearly denote that the marks of the motor

cycle tyre could not have been relied upon either by the Trial

Court or by the High Court for establishing that the motor

cycle having particular tyre marks was used in the alleged

offence.

(23) It is also pertinent to note that the prosecution

could not establish the purpose for which the deceased was

murdered by the accused. Of course, it is not necessary that 18

in every case motive of the accused should be proved.

However, in the instant case, where there is no eye witness

or where there is no scientific evidence to connect the

accused with the offence, in our opinion, the prosecution

ought to have established that there was some motive

behind commission of the offence of murder of the

deceased. It was the case of the prosecution that the

deceased, an Income Tax Officer had raided the premises

belonging to some scrap dealers and, therefore, he had

received some threats from such scrap dealers. It is an

admitted fact that the accused are not scrap dealers or there

is nothing to show that the accused had been engaged by

scrap dealers to commit the offence. Thus, there was no

motive behind the commission of the offence so far as the

accused are concerned.

(24) It is a settled legal position that in case of

circumstantial evidence, there must be a complete chain of

evidence which would lead to a conclusion that the accused 19

was the only person, who could have committed the offence

and none else. In the instant case, there is nothing to show

that the accused had committed the offence and on the

basis of the aforestated material, in our opinion, it would be

dangerous to convict the accused. In the case of G.

Parashwanath vs. State of Karnataka, (2010)8 SCC 593,

para 24, it has been stated that "in deciding the sufficiency

of the circumstantial evidence for the purpose of conviction,

the court has to consider the total cumulative effect of all

the proved facts, each one of which reinforces the conclusion

of guilt and if the combined effect of all these facts taken

together is conclusive in establishing the guilt of the

accused, the conviction would be justified even though it

may be that one or more of these facts by itself or

themselves is/are not decisive. The facts established should

be consistent only with the hypothesis of the guilt of the

accused and should exclude every hypothesis except the one

sought to be proved............. There must be a chain of

evidence so complete as not to leave any reasonable ground 20

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, where various links in

chain are in themselves complete, then the false plea or

false defence may be called into aid only to lend assurance

to the court".

(25) In another case of C. Chenga Reddy v. State of

A.P., reported in (1996) 10 SCC 193, this Court has held

that "In a case based on circumstantial evidence, the

settled law is that the circumstances from which the

conclusion of guilt is drawn should be fully proved and such

circumstances must be conclusive in nature. Moreover, all

the circumstances should be complete and there should be

no gap left in the chain of evidence. Further the proved

circumstances must be consistent only with the hypothesis

of the guilt of the accused and totally inconsistent with his

innocence."

21

(26) Due to the above stated facts, in our opinion, the

conclusion reached by the courts below is not correct. On

the basis of such scanty evidence, which is practically no

evidence at all in the eyes of law, the courts below could not

have passed the order of conviction. For the reasons stated

hereinabove, we are of the view that the orders convicting

the accused-appellants in both the appeals are not justified

and, therefore, the appeals are allowed. The impugned

orders are quashed and set aside. The accused-appellants

shall be released immediately, if not required in any other

offence.

...........................................J (Dr. MUKUNDAKAM SHARMA)

........................................J. (ANIL R. DAVE) New Delhi October 29, 2010