Holding

The High Court’s acquittal is affirmed because the prosecution failed to meet the Sarda test for circumstantial evidence.

Summary

The case concerned the death of Kishan Sikand, who was killed by a parcel bomb on 2 October 1982. The prosecution alleged that Lt. Col. S.J. Chaudhary, the ex‑husband of Rani Chaudhary, manufactured the bomb out of motive to prevent her living with Sikand. The trial court convicted Chaudhary under Section 302 IPC and Sections 3 and 4 of the Explosive Substances Act, 1908. On appeal, the Delhi High Court acquitted him, holding that the case rested solely on circumstantial evidence that did not satisfy the stringent tests laid down in Sharad Birdhichand Sarda’s judgment. The appellant, H.D. Sikand (father of the deceased), challenged the acquittal before the Supreme Court. The Supreme Court examined the circumstantial evidence, applied the Sarda test, and concluded that the prosecution failed to prove guilt beyond reasonable doubt. Consequently, the Court affirmed the High Court’s acquittal and dismissed the appeal.

Issues considered

The prosecution’s circumstantial evidence satisfies the criteria for conviction under Sharad Birdhichand Sarda’s test?
Whether the motive attributed to Lt. Col. S.J. Chaudhary is sufficient to establish his guilt?
Whether the evidence under Sections 302 IPC and 3,4 of the Explosive Substances Act, 1908, meets the burden of proof beyond reasonable doubt.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Explosive Substances Act, 1908s. 3, s. 4
Indian Penal Code, 1860s. 302

Subjects

murdercircumstantial evidenceacquittalparcel bombexplosive substances actmotiveburden of proofcriminal appeal

Judgment

[2016] 9 S.C.R. 205

H.D. SIKAND (D) THROUGH LRS. A
v.
CENTRAL BUREAU OF INVESTIGATION AND ANR.
(Criminal Appeal No. 729 of201 I)
DECEMBER 15,2016 B

[PINAKI CHANDRA GHOSE AND AMITAVA ROY, JJ.)
Appeal: Murder case - Acquittal by High Court - Appeal
against acquittal - Case totally dependant on circumstantial
evidence - Prosecution failed to pass the test as laid down in Sharad
Birdhichand Sarda's case - High Court rightly ordered acquittal -
c
Penal code, 1860 - s.3.02.
Dismissing the appeals, the Court
HELD: The case in hand was totally dependent upon the
circumstantial evidence. The prosecution failed to pass tests to D
bring home the guilt of the accused as laid down by this Court
in *Slumul Birdllic/u11ul Sau/a v. State of Mallaraslitra. The
findings recorded by the High Court were plausible, logical and
persuasive, reached by the materials on record and command
for affirmation. [Para 18) (219-A-D)
E
*Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116: 1985 (1) SCR 88 - relied on.
Shahid Khan v. State of Rajasthan (2016) 4 SCC 96 -
referred to.
Case Law Reference F

(2016) 4 sec 96 referred to Para 15
1985 (1) SCR 88 relied on Para 18
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 729 of201 I. G
From the Order dated 15.05.2009 by the High Court of Delhi at
New Delhi in Criminal Appeal No. 456 of2008
WITH
Crl. A. No. 730 of201 I. H
205
...
.. :..:

206 SUPREME COURT REPORTS [2016] 9 S.C.R.

A Sushi I Kumar Jain, Sr. Adv., Janendra Lal, Ms. Yasmin Tarapore,
Punit Jain (For Mis. Janendra Lal & Co.), P. K. Dey, Kumar Parimal,
T. A. Khan, Andleeb Naqvi, Shreyasi Chakraborty, Ms. Reena Rai,
Ms. Shilpi Dey, Mukesh Kumar Maroria, D. N. Ray, Sharvesh Singh,
Aamir Khan, Samir Ali Khan, Advs. for the appearing parties.
B The Judgment of the Court was delivered by
PINAKI CHANDRA GHOSE, J. I. These appeals, by special
leave, have been filed by the appellants challenging the judgment dated
15 1h May, 2009, passed by the High Court of Delhi at New Delhi in
Criminal Appeal No.456 of2008, whereby the High Court has set aside
c the judgment and order dated 28.04.2008 passed by the Additional
Sessions Judge, Delhi, and acquitted Respondent No.2 of the charge of
murder as also of the charges under Sections 3 & 4 of the Explosive
Substances Act, 1908.
2. The brief facts of the case are that Rani Chaudhary got married
D to Sqn. Ldr. Pritam Singh and out of the wedlock, she had two_daughters,
namely, Mini and Maitri. After the death of her husband, she started
living at D-5, South Extension, Part-I, New Delhi. Rani Chaudhary had
acquai11tance with Lt. Col. S.J. Chaudhary, who was a divorcee at that
time. On 31.3 .1971, Rani Chaudhary got married to Lt. Col. SJ. Chaudhary
and out of this wedlock one daughter, namely, Sonali was born on
E 24.08.1972. Their marriage could not continue harmoniously, so Rani
Chaudhary started living separately at her parents' house at Defence
Colony, New Delhi, with effect from May, 1976. Lt. Col. S.J. Chaudhary
continued to harass Rani Chaudhary. Rani Chaudhary filed a petition for
divorce under Section 13(l)(la) of the Hindu Marriage Act, in the Court
F of District Judge, Delhi, and on 6.12.1979, an ex-parte decree of divorce
was granted in her favour. Accused S.J. Chaudhary after coming to
know about the ex-parte decree, filed an appeal before the Delhi High
Com1 on 5.03 .1980. He also filed two petitions in the Court ofAdditional
District Judge, Delhi, one for setting aside the ex-parte decree of divorce
granted in favour of Rani Chaudhary and the other for restraining Rani
G Chaudhary from marrying Kishan Sikand. A restraint order was passed
against Rani Chaudhary from marrying Kishan Sikand, pending decision
of the divorce petition. Ori 6.1.1981, the Additional District Judge
dismissed the petition for setting aside the ex-parte decree of divorce
and also vacated the injunction order restraining Rani Chaudhary from
H remarriage.
H. D. SIKAND (D) THROUGH LRS. v. CENTRAL BUREAU OF 207
INVESTIGATION AND ANR. [PINAKI CHANDRA GHOSE, J.]

3. On 9.01.1981, accused S.J. Chaudhary got another order from A
the High Court of Delhi restraining Rani Chaudhary from remarriage till
fu1iherorders. This order was vacated by Delhi High Courton 17.03.1981
while dismissing the appeal filed by accused S.J. Chaudhary against ex-
parte decree of divorce granted in favour of Rani Chaudhary. Since the
accused S.J. Chaudhary had already gone in appeal before the Delhi
B
High Court, against the order passed by the Additional District Judge on
6.01.1981, the said appeal was admitted and Rani Chaudhary was
restrained from remarriage by the Delhi High Court. While disposing
of the appeal on 14.09.1981, the Delhi High Court set aside the decree
of divorce granted in favour of Rani Chaudhary and directed the parties
to appear before learned District Judge for fresh hearing of divorce c
petition. Rani Chaudhary filed an appeal before this Court against the
order dated 14.09.1981 passed by the Delhi High Court. This Court set
aside the order dated 14.09.1981 passed by the Delhi High Court and
restored the ex-parte decree of divorce granted in favour of Rani
Chaudhary. After the divorce litigations between Rani Chaudhary and
D
accused S.J. Chaudhary came to an end, Kishan Sikand (deceased)
proposed Rani Chaudhary for marriage to which she agreed and they
decided to marry after the divorce is granted to Rani Chaudhary and
continued to live together in the house of deceased Kishan Sikand at 98,
Sundar Nagar, New Delhi. Accused S.J. Chaudhary started threatening
Rani Chaudhary and also lodged complaints on 29.9.1981 and 30.9.1981 E
at P.S. Lodhi Road and P.S. Hazrat Nijamuddin against Kishan Sikand
for illegally keeping his wife with him. But Rani Chaudhary gave in
writing that she had taken divorce from accused S.J. Chaudhary and
that she was staying there as a paying guest out of her own free will and
Kishan Sikand had not illegally detained her. The case of the prosecution
is that the accused S.J. Chaudhary having lost his endeavour to win
F
back his wife Rani Chaudhary, made up his mind to eliminate Kishan
Sikand and so he procured the raw ingredients to manufacture a bobby
trap bomb and using parts of a hand-grenade, he managed to manufacture
·a bobby trap bomb. This bobby trap bomb was converted into a parcel
addressed to Kishan Sikand. On 2.10.1982, the said parcel, containing G
the bomb, was kept at the staircase leading to the first floor of98, Sundar
Nagar, New Delhi, in the rear portion whereof Kishan Sikand was
residing along with Rani Chaudhary. When the said parcel bomb was
opened by deceased Kishan Sikand, it triggered off resulting in an explosion
and his instantaneous death.
H
208 SUPREME COURT REPORTS [2016] 9 S.C.R.

A 4. Post-mo1tem was conducted on the dead body ofKishan Sikand.
The cause of death was opined as a result of haemorrhage, shock and
injuries to vital organs caused by explosive device of hand grenade which
were fatal.
5. First Information Report (FIR) was registered on the day of
B the incident itself on 2.10.1982. The investigation of the case was
ultimately entrusted to the CBI on 19.3.1983. Accused S.J. Chaudhary
was arrested by the Central Bureau of Investigation ("CBI") on
31.07. I 983 during the course of investigation. Rani Chaudhary, who was
at Sanawar (H.P.) on the day of the incident, returned to Delhi on the
next day. Her statement under Section 161 Cr.P.C. was recorded on
c 3.10.1982, wherein she infonned the police about her turbulent marriage
with the appellant and the divorce. She also informed the police that
accused S.J. Chaudhary had been extending threats to her to compel
her to return to him and that he had even been threatening Kishan Sikand.
Apart from other persons whose statements were recorded during
D investigation, the statement of one Suresh Gopal, a close friend of the
deceased Kishan Sikand and Rani Chaudhary was recorded on 5.10.1982.
Although the accused S.J. Chaudhary was a suspect from the very
beginning but nothing incriminating against him could be gathered by the
police before CBI had taken over. In support of their case, the CBI
examined 76 witnesses and 8 witnesses were examined on behalf of the
E
defence. Thereafter arguments were heard and judgment reserved. On
28.04.2008, the Additional Sessions Judge, Delhi, delivered the judgment
convicting accused S.J. Chaudhary (Respondent No.2 herein) under
Section 302 of the Indian Penal Code and under Sections 3 and 4 of the
Explosive Substances Act, 1908, and sentencing him to life imprisonment
F along with a fine ofRs.5,000/- for offence under Section 302 !PC and to
rigorous imprisonment for I 0 years each under Sections 3 and 4 of the
Explosive Substances Act, 1908.
6. Being aggrieved by the judgment dated 28.04.2008 of the
Additional Sessions Judge, Delhi, Respondent No.2 filed criminal appeal
G before the Delhi High Court on the ground that he had inter alia been
convicted only on the basis of circumstantial evidence and therefore he
was entitled to the benefit of doubt. Shri H.D. Sikand, father of the
deceased Kishan Sikand, filed an application for intervening in the said
criminal appeal. The application for intervention was allowed and H.D.
Sikand was granted permission to intervene in the matter but on
H
H. D. SIKAND (D) THROUGH LRS. v. CENTRAL BUREAU OF 209
INVESTIGATION AND ANR. [PINAKI CHANDRA GHOSE, J.]

12.03.2009, the intervenor Shri H.D. Sikand passed away. On 15.05.2009, A
the Delhi High Court, after hearing the parties allowed the criminal appeal
filed by Respondent No.2, set aside the judgment and order passed by
the Additional Sessions Judge and acquitted Respondent No.2 (Lt. Col.
S.J. Chaudhary) of the charge of having committed murder as also the
charges under Sections 3 & 4 of the Explosive Substances Act, 1908.
B
Hence, these appeals, by special leave, have been filed against the
acquittal of Respondent No.2 (Lt. Col. S.J. Chaudhary).
7. We have heard the learned counsel appearing on behalf of the
parties and perused the judgment passed by the High Court as also the
judgment passed by the Trial Court. Learned counsel appearing on behalf
of the appellants in Criminal Appeal No. 729of2011 submitted that after
c
the explosion took place in the house ofKishan Sikand, the Delhi Police
took over the investigation but except recording some statements and
formal actions, did not do any worthwhile investigation. This is clear
from the following:
(a) On 3.10.1982 Shri P.P. Koahar (PW-72) recorded the statement D
of Rani Chaudhary, Vijay Ram and Flaurance Homs and others.
He also recorded statement of Suresh Gopal on 5.10.1982. He
also recorded some statements on other days.
(b) On 4.10.1982, search was conducted of the premises i.e. 98,
Sunder Nagar and the Investigating Officer took possession of E
the documents on 6.10.1982. He did not even prepare proper Memo
of the said documents. All those documents are missing; and the
documents said to have been recovered by PW-72 on 4.10.1982
are not the part of charge-sheet. During the cross-examination,
R.P. Kochar, Investigating Officer himself admitted that from the F
very beginning he suspected the accused as he stated: "till the
investigation was me, I could not collect clinching evidence to
arrest the accused", "from the very beginning I suspected him to
be the perpetrator of crime".
8. Learned counsel further submitted that even after the Court's G
order and search warrant issued for search of the house of Respondent
No.2, only search was conducted by the police and thereafter the
Investigating Officer did not do anything except collecting 75 type prints
of different typewriters or specimens, which had no relevance with the
crime. The police did it only to pretend that they were doing some
H
210 SUPREME COURT REPORTS [2016] 9 S.C.R.

A investigation. According to the Investigating Officer himself, it came to
his knowledge that a parcel was spotted on the staircase on 25.09.1982
for the first time, but even after such fact came to his notice, he did not
make any investigation and did not even record the statement of the
person giving such information. When there was no proper investigation
by the Crime Branch and the criminal remained undetected, on the
B
request of the appellant, the case was transferred to the CBI and only
thereafter the real investigation started and in this manner the precious
time for collection of evidence was lost.
9. Learned counsel further submitted that there were strained
relations between Rani Chaudhary and accused Respondent No.2 and
c despite best efforts to maintain her matrimonial ties with the accused
Respondent, the accused Respondent continued to ill treat her and even
to11ured her both mentally and physically, forcing her to shift to Delhi.
She was beaten to the extent of causing fractures of three bones. The
accused Respondent threatened the deceased and Rani Chaudhary with
D dire consequences to the extent of bodily harming and killing Kishan
Sikand on a number of occasions. The accused Respondent had the
grudge and motive to kill Kishan Sikand. Learned counsel submitted that
the marriage between Rani and accused Respondent could not continue
harmoniously and accused Respondent used to physically assault and
· mentally torture Rani and on account ofincessant harassment and physical
E torture by accused Respondent, Rani lodged a complaint with the
concerned Army Authorities in February/March 1979. On coming to
know about this complaint, the accused Respondent came to Delhi from
Bangalore where he was posted and Rani was mercilessly beaten and
she received injuries including fractures of3 ribs on the left side. Rani
F lodged a report at the Police Station, Defence Colony and was medically
examined at AIIMS. Mrs. Devender Kaur, mother-in-law of Rani (by
the first marriage) also lodged a report at the Police Station and
complained about the conduct of accused Respondent. It is also stated
that the accused went to the house of Rani and confined her inside the
house but she escaped by jumping out of the window, in the process she
G sustained sprain in her ankle. Thereafter, Rani filed a divorce petition on
the ground of cruelty and torture. The Trial Court passed a decree of
divorce which was set aside by the High Court and upon tiling special
leave petition, this Courton 24.08.1982 restored the decree 0f divorce
passed by the Trial Court. In the meantime, Rani and Kishan Sikand
H became good friends and Rani started living with Kishan Sikand at 98,
H. D. SIKAND (D) THROUGH LRS. v. CENTRAL BUREAU OF 211
INVESTIGATION AND ANR. [PINAKI CHANDRA GHOSE, J.]

Sunder Nagar, New Delhi._ There was an understanding between them A
that they would get married after the divorce was finalized. The accused-
Respondent threatened Rani not to live with Kishan Sikand and in case
she did not move out of the house of Kishan Sikand, he would kill her
and Kishan Sikand. The accused- Respondent also told H.D. Sikand,
father ofKishan Sikand, to throw out Rani from his house, otherwise he
B
would cripple Kishan Sikand by breaking his bones. The accused-
Respondent also visited H.D. Sikand in the office and he was very annoyed
at that time. Accused-Respondent also telephoned Kishan Sikand and
told him that ifhe did not turn Rani out of his house within 24 hours, he
would kill him. T~is was intimated by Kishan Sikand to Rani (PW-1),
Sudhir Khaima (PW- I 0), H.D. Sikand (PW-19), M.M. Thapar (PW- c
37), Leelu Moo! Chandani (PW-39) and Gajbir Singh (PW-44). The
accused-Respondent gave Rani four options:
(a) to live together
(b) to separate peacefully
D
(c) to separate in an ugly manner
(d) to create total chaos
The accused-Respondent threatened that if she did not agree for one of
the first three options then chaos would follow. This was recorded in
tape recorder. The accused-Respondent lodged a false report in Police E
Station, Nizamuddin alleging that Rani has been forcibly confined by
Kishan Sikand at his house. Om Sagar, Station House Officer went to
the house of Kishan Sikand, met Rani and inquired from her if she was
forcibly detained to which Rani replied in the negative and gave her
statement in writing.
F
I 0. Learned counsel for the appellants further submitted that the
finding recorded by the Trial Court regarding 'threat to deceased by the
accused-respondent' and 'motive' are as follows:
Threat to deceased by the accused-Respondent
G
- "I have no reason to disbelieve the witnesses about the threats
given to Rani Chaudhary and deceased Sikand."
Motive
"Believing the deposition of Ms. Rani Chaudhary, H.D. Sikand
and others witnesses, I find that accused had motive to kill not H
212 SUPREME COURT REPORTS [2016] 9 S.C.R.

A only Rani Chaudhary but also deceased Kishan Sikand so that
they don't live together against the wishes of the accused."
Learned counsel submitted that the High Court while accepting the
aforesaid findings on the second aspect i.e. Motive, has considered three
letters dated 2.10.1980, 16.11.1980 and 3.03.1982 out ofcontext inasmuch
B as the said letters cannot be read in isolation, particularly in the factual
background of the relations and the conduct of the respondent and his
behavior with Rani Chaudhary and Kishan Sikand.
11. Learned counsel for the appellants also submitted that the
High Court disbelieved the evidence of Mohd. Shafi (PW-7) who saw
c the accused-Respondent coming out of the house of the deceased and
going towards Sunder Nagar market on the reasoning that Mohd. Shafi
who had gone to first floor of 98, Sunder Nagar, to give keys ought to
ha-.e noticed the existence of parcel, which he did not mention. Learned
counsel submitted that outsiders normally ignore anything lying on the
staircase or other place of house inasmuch as they are not concerned
D with the same, particularly when a number of persons are living in the
same house. Learned counsel submitted that the High Court has also
disbelieved the testimony of this witi1ess, firstly, on account of the delay
and secondly, that he was the employee ofSikand Motors and that neither
Suresh Gopal (PW-3) nor Mohd. Shafi (PW-7) had mentioned each
E other's presence on the spot in their 161 Cr.P.C. statements recorded by
the Police. It was submitted that no question was put as to why Mohd.
Shafi did not inform the Police about the visit of the accused to the
house of Sikand on 2S 1h September, 1982 or that whether he had noticed
the presence of parcel or not.
F 12. Learned counsel appearing on behalf of Respondent No.2
submitted that the Trial Court has convicted Respondent No.2 for the
offence of murder only on the basis of circumstantial evidence and the
conviction has been overturned by a Division Bench of the Delhi High
Court. It is further submitted that the circumstances relied upon by the
prosecution have not been satisfactorily established against Respondent
G No.2 and the circumstances said to have been established against
Respondent No.2 do not provide a complete chain that is required to
prove his guilt. The standard of proof required to convict a person in a
case of circumstantial evidence, has not been met either. It is submitted
by the learned counsel that the law requires that the circµmstances relied
H upon in support of the conviction must be fully established, and that the
H. D. SIKAND (D) THROUGH LRS. v. CENTRAL BUREAU OF 213
JNVESTIGATION AND ANR. [PINAKI CHANDRA GHOSE, J.]

chain of evidence furnished by those circumstances must be so complete, A
so as not to leave any reasonable doubt for a conclusion, consistent with
the innocence of the accused. The circumstances from which the
conclusion of guilt is to be drawn, must not only be fully established, but
also be of a conclusive nature and consistent only with the hypothesis of
the guilt of the accused and they must not be capable of being explained
B
by way of any other hypothesis except the guilt of the accused, and
when all the said circumstances are collectively considered, the same
must lead only to the irresistible conclusion that the accused alone is the
perpetrator of the crime in question, which is not the case in the present
appeals, the learned counsel submitted.
13. Learned counsel for Respondent No.2 next submitted that the c
contention of the appellant that the Crime Branch of Delhi Police did not
investigate the case properly and with promptitude due to the influence
of Lt. Col. Chaudhary (Respondent No.2) whose father was former
I.G. in Delhi Police, is an ex facie baseless and unfounded allegation.
The father of Respondent No.2 lfad passed away long back in 1956 and D
the 1.0. Inspector Kochar had not even joined Delhi Police by then and
it is a farfetched allegation that he had been influenced by the association
of Lt. Col. Chaudhary. In any case, the prosecution has not put any
suggestion to Inspector Kochar in his testimony that he wrongly recorded
the statement of any witness or that Lt. Col. Chaudhary had influenced
him in any manner. E

14. Learned counsel for Respondent No.2 further contended that
the prosecution's whole case is not based on any concrete evidence or
eye-witness testimony but on presumption and imputation of motive to
Lt. Col. Chaudhary that he had an animus towards the deceased Kishan
Sikand due to his ex-wife Rani Chaudhary living with Kishan Sikand. F
This cannot be true for the following reasons:
(a) First, ifthe reason ofanyone's ex-spouse living with/marrying
another person led to people killing each other, then it would
have already resulted in an unholy mess of biblical proportions.
G
(b) Second, all the three protagonists namely Lt. Col. Chaudhary,
Rani Chaudhary and Kishan Sikand had experience of previous
marriages - the marriage between Lt. Cql. Chaudhary and
Rani Chaudhary was second marriage for both as he was a
divorcee and she was a widow and out of previous wedlock
H
214 SUPREME COURT REPORTS [2016] 9 S.C.R.

A she had two daughters and out of the wedlock with Lt. Col.
Chaudhary they had one daughter; and Kishan Sikand was
also a divorcee and father to a son. So, divorce and living apart
was not a new concept to any of the three parties so as to
motivate them to kill someone.
B ( c) Third, due to the differences between husband and wife, Rani
Chaudhary left Bangalore where Lt. Col. Chaudhary was
posted and came to Delhi and started living separately from
1976 itself, and subsequently she started living with Kishan
Sikand at his house. Other than his concern for the future and
upbringing of the three young daughters, Lt. Col. Chaudhary
c was already used to a life without Rani Chaudhary who had
been living apart from him since 1976. Therefore, there was
no sudden trigger to plan in such detail as alleged and kill Kishan
Sikand.
(d) Fou11h, to suggest that merely because Lt. Col. Chaudhary
D and Rani Chaudhary went through divorce proceedings and
some things were said during that time, he would decide all of
a sudden in 1982 to kill Kishan Sikand, is too far-fetched and
conjectural, and certainly not on which a conviction under
Section 302 can be based.
E ( e) Fifth, letters dated 22. I 0.80, 16.11.80 and 03.03.82 marked as
Ex.PW-I/FF, Ex.PW-1/GG and Ex.PW-JINN respectively,
addressed by Lt. Col. Chaudhary to Rani Chaudhary show
that he had reconciled to a life without her but was concerned
for the well being and future of the three daughters.
F 15. It is further submitted by the learned counsel for Respondent
No.2 that the testimony of PW-7 Mohd. Shafi is false, manufactured
and cannot be relied upon, and that he was a planted witness is clear
from the following facts:
(a) First, it is most pertinentto point out that ifthe testimony of the
G said sole so-called eye-witness in the whole case PW-7 is taken
at its face value even then it is nowhere stated that he saw Lt.
Col. Chaudhary with any parcel let alone a parcel bomb or
that he saw Lt. Col. Chaudhary delivering anything to the
deceased's house; he has merely stated that he saw Lt. Col.
Chaudhary coming out of the gate of the deceased house on
H
H. D. SIKAND (D) THROUGH LRS. v. CENTRAL BUREAU OF 215
INVESTIGATION AND ANR. [PlNAKI CHANDRA GHOSE, J.]

25.09. I 982. There is neither any eye-witness nor any evidence A
to show that the so called booby trap parcel was actually
delivered, or that it was delivered on this day, or that anybody
received the said parcel, or that anybody saw Lt. Col.
Chaudhary delivering anything let alone a booby trap parcel to
the deceased 's residence.
B
(b) Second, there was no eye-witness available as long as the
Delhi Police investigated the case. However, as soon as the
CBI took over the case, two Link Witnesses, magically appear
- PW-7 Mohd. Shafi and PW-9 Jug Lal. Even Jug Lal did not
support the prosecution story in Court. He was declared hostile.
c
( c) Third, PW-7 Mohd. Shafi comes into the picture only on
16.07.1983-after nine and half months of the incident-when
his I 6 I Cr.P.C. statement was recorded by the CBI. PW-7
coming up with.a belated statement casts serious doubts on
his truthfulness.
D
Learned counsel argued that delay in recording the statements of
the eye-witnesses casts a serious doubt about they being eye-witnesses
to the occurrence. In support of this submission, he relies upon a recent
judgment of this Court in Shalii<i Klum v. Stme ofRttjllstlum, (2016) 4
SCC 96, wherein this Court reversed the conviction for murder as
statements of eye-witnesses were recorded after 3 days of incident and E
no explanation regarding the same was given.
( d) Fourth, in the same judgment i.e. Slwlti<I Klum v. Stllte of
Rlljastlwn (supra). this Cou11 further held that evidence of
witnesses became unreliable when there was no corroboration
of their evidence, and a further reason for reversal of conviction F
for murder was that there was no information available as to
how police came to know that witnesses saw the occurrence
and also as the case against accused persons was not proved
beyond reasonable doubt.
( e) Fifth, PW-7 Mohd. Shafi admits that he had never seen Lt. G
Col. Chaudhary there ever before. It is highly doubtful that he
would be particular in noticing that Lt. Col. Chaudhary was
coming out of the gat~ of98, Sunder Nagar, or that he would
be able to say after I 0 months that he saw Lt. Col. Chaudhary.
(t) Sixth, PW-7 is an old and trusted employee of the Sikands with H
216 SUPREME COURT REPORTS [2016] 9 S.C.R.

A over 30 years of service with them and is, therefore, clearly
not an independent and reliable witness and is the only person
deposing to have seen Lt. Col. Chaudhary near the main gate
coming out of98, Sunder Ngaron 25.09.1982.
(g) Seventh, PW-7 has stated that subsequent to spotting of Lt.
B Col. Chaudhary, he parked the car, locked it and went upstairs
to deliver the keys of the car to Kishan Sikand and even atthat
time he did not see any parcel lying in the staircase. PW-7's
testimony itself rules out that Lt. Col. Chaudhary had placed
any parcel on that day as alleged by the prosecution.

c (h)Eighth, the claim to recognize a person in the headlights ofa
moving car, when not specifically looking out for him, would
be a very tall and motivated claim, not free from suspicion,
especially when sunset occurred at 6.16 p.m. on 25'h
September, 1982 (recorded data available with Meteorological
Bureau) and it gets pitch-dark by 6.45 p.m. Also there was no
D streetlights outside 98, Sunder Nagar in 1982.
(i) Ninth, during his cross-examination, except for the exact date
and time of seeing Lt. Col. Chaudhary outside 98, Sunder Nagar,
PW-7 Mohd. Shafi could not remember any other date in 1982-
neither his son's date of marriage, nor where his son worked,
E nor his own birthday, nor any important religious or personal
occasion.
The learned counsel, therefore, argued that the entire statement of PW-
7 is tailor-made to suit the prosecution story only to create a link between
the planting of a parcel and Lt. Col. Chaudhary. Such evidence is to be
F treated with great suspicion by law and a delay of just a few days, in
such circumstances, has been held to be unreliable.
16. Learned counsel for Respondent No.2 lastly submitted that
the prosecution has failed to prove their case beyond reasonable doubt
for the following reasons:
G
i) Motive to Kill: It is evident from Respondent No.2's letters
that he had reconciled to the inevitability of divorce. The High
Court has come to the correct finding that while there is scope
for an argument that inasmuch as there is evidence wherefrom
a motive can be attributed to Respondent No.2; there is an
H equal scope for an argument that there is evidence on record
H. D. SIKAND (D) THROUGH LRS. v. CENTRAL BUREAU OF 217
INVESTIGATION AND ANR. [PINAKI CHANDRA GHOSE, J.]

wherefrom said motive gets negated. To conclude, the only A
admissible evidence which remains against Respondent No.2
is that of motive, which itself is negated from the readings of
the said letters. But motive, being presumptive evidence, is a
weak evidence and by itself cannot form a chain of
circumstances so complete that the only inference possible is
B
the guilt of Respondent ~o.2, ruling out his innocence.
ii) Access to Hand Grenade: It is submitted that Respondent
No.2 was an Anny Officer and there is no evidence on record
that he respondent would have procured or have access to a
POK hand grenades as categorically proved by the testimony
of PW-45, DW-3 and DW-6. Also the Respondent was
c
evacuated from the battlefield in a wounded condition after he
was relieved of all the anns and ammunition. Moreover, the
Respondent belonged to four horse regiment who are not
specialized in anatomy of anns and ammunition especially hand
grenade. Further, there was no evidence to the effect that any D
POK hand grenade was stolen at any time. Also it would be
preposterous to suggest that the Respondent had stolen a
Pakistani grenade during the lndo-Pak in 1971, so that he may
use it for personal objective in future and that he actually used
it a decade later in 1982.
E
iii) Presence of Respondent at Deceased's house: The
whereabouts of the Respondent on 25.09.1982 is on record
from about I pm till about 11 pm and at no stage he went
anywhere in the vicinity of98, Sunder Nagar. The Respondent .
played golf from 1.30 pm till 5.30 pm, then refreshed himself,
changed and had refreshments. PW-20 has deposed before F
the Court in his cross-examination that the Respondent was
with him from 7.45 pm on 25.09.1982 till 8.15 pm. It is
corroborated by DW-2 Maj. A.K. Nehra that the Respondent
arrived at Friends Colony at about 8.15 pm accompanied by
short fat person signifying PW-20. Thereafter, DW-2 dropped G
the Respondent at 4, Friends Colony, where a party was going
on. The Respondent's presence is further confirmed till I I pm
by DW-1 Mr. Rattan Sehgal at a party in Friends Colony.
iv) Disclosure Statement: The "voluntary" disclosure statement
dated 05.08.1993 was coerced after five days in CBI custody H
218 SUPREME COURT REPORTS [2016) 9 S.C.R.

A and the Respondent has not signed the disclosure statement.
The witness to such disclosure statement has also not signed
the statement of the Respondent. One of the two independent
witnesses has been given up by the prosecution. The
Respondent had not pointed to any specific typewriter and the
typewriter machine alleged to be used by the Respondent for
B
typing the address was not even sealed on the same day, but
much later i.e. on Ol.J0.1983.
v) Typewriter used for typing address on the Parcel
PW-75 has led no evidence of any special knowledge gained
by him except for a three days stint with Godrej, a company
c which manufactures typewriters. Further the High Court has
in details· discussed the criteria for comparison of typewriter
evidence, whereby the High Court came to the conclusion that
the expert in comparing the two address as alleged typed from
the same machine has not followed the reasoning and procedure
D which an expert necessarily needs to follow as per Fryes test.
The seized specimens taken from Janta Commercial were not
sealed. Further, PW-75 has admitted that the questioned
document does not contain clear impressions due to mutilation·
and that having admitted thirteen dissimilarities during cross-
examination, an attempt was made by PW-75 to explain the
E said thirteen dissimilarities, and therefore, no reliance can be
placed on his report and testimony.
17. Learned counsel for Respondent No.2 submitted that the rule
of evidence setting out the threshold of conviction based on circumstantial
evidence emanating from the decision in the English case ofR. v. Hodge
F (168 ER 1163 (1838), and subsequently followed by all the common law
countries, is that before a person is convicted entirely on' circumstantial
evidence, the Court must be satisfied not only that those circumstances
are consistent with his having committed the act, but also that the facts
are such, so as to be inconsistent with any other rational conclusion
G other than the one that the accused is the guilty person, is not met by
any stretch of imagination in the above-mentioned factual and legal
scenario, and therefore, these appeals deserve to be dismissed.
18. After hearing the learned counsel for the parties and after
going through the records ofthis matter, including the evidence, as analyzed
H
H. D. SIKAND (D) THROUGH LRS. v. CENTRAL BUREAU OF 219
INVESTIGATION AND ANR. [PINAKI CHANDRA GHOSE, J.]

by the High Court as well as the Trial Court, it appears that the case in A
hand is totally dependent upon the circumstantial evidence. We have
examined the evidence laid in course of the arguments and have
specifically considered the tests which have to be met by the prosecution
to get success in the matter as laid down by this Court in Slwrad
Birdliicllmul Sarda Vs. State of Malwras/1tra, (1984) 4 SCC I 16,
B
wherein the tests have been specifically given and it appears to us after
analyzing the facts and evidence in this case, that the prosecution has
failed to pass such tests to bring home the guilt of the accused.
Accordingly, in our opinion, the High Court has correctly come to the
conclusion after analyzing the facts and the evidence. In our opinion, the
arguments which have been put forward in the matter by Mr. D.N. Ray, c
learned counsel appearing on behalf of respondent No.2, are much more
acceptable in the facts and circumstances of this case. The findings
recorded by the High Court are plausible, logical and persuasive, reached
by the materials on record and command for affirmation. Thus, we do
not have any hesitation to hold that the High Court has correctly come to
D
the conclusions with the reasons given therefor. Accordingly, we do not
find any merit in these appeals which are hereby dismissed.
Devika Gujral App·cals dismissed.

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