NANHAR AND ORS.versusSTATE OF HARYANA

                       [2010] 7 S.C.R. 384

A                      NANHAR AND ORS.
                                v.
                      STATE OF HARYANA
               (Criminal Appeal No. 2496 of 2009)
                         JUNE 11, 2010
B
     [DEEPAK VERMA AND K.S. RADHAKRISHNAN, JJ.]

       Penal Code, 1860: ss. 3021149 - Conviction under -
  Note said to be dying declaration recovered from pocket of
C deceased which stated that he was administered poison mixed
  in a drink by the accused - Conviction of accused on the
  basis of purported dying declaration and circumstantial
  evidence - High Court upheld the conviction - On appeal,
  held: Prosecution could not establish that the chain of
D circumstances was complete - With a broken chain of
  circumstantial evidence, accused could not be held guilty -
  Moreover, the said note did not fall in the category of dying
  declaration - A person after consuming excessive liquor
  cannot write such note with so much precision and with a
E steady hand - Thus the said note did not inspire confidence
  and was not admissible - Order of conviction not sustainable
  - Evidence - Circumstantial evidence - Dying declaration.

      Prosecution case was that the wife of accused 3
  developed illicit relations with the deceased. When
F accused 3 came to know about such relationship, he
  developed grudge against the deceased and planned to
  eliminate him. On the fateful day, dead body of the
  deceased was found in his field. A note stated to be his
  dying declaration was recovered from the match box
G found in his pocket which stated that the accused
  persons administered poison on him by mixing it In a
  drink. Trial Court convicted the accused under Sections
  302/149 IPC based on the circumstances and dying

H                              384
                '
     NANHAR AND ORS. v. STATE OF HARYANA                385


declaration. The High Court affirmed the conviction.           A
Hence these appeals.

     Allowing the appeals, the Court

      HELD: 1.1. It is well settled law that the prosecution
 must stand or fall on its own legs and it cannot derive any   B
 strength from the weaknesses of the defence. When the
 case is based on circumstantial evidence, the chain of
 circumstances should be complete in all respect and the
 pointer of guilt should continuously be on the accused
'only. Any deviation of the pointer of guilt on the accused    C
 would enure him the benefit of doubt. In the instant case,
 it is true that the police official who had prepared the
 Inquest Report had died during the pendency of the trial,
 but no reason was assigned as to why other police
 personnel present along with him were not examined.           D
 They could have at least explained the true picture and
 proved recovery of dying declaration and pocket
 telephone index diary from possession of deceased.
 [Paras 26, 27, 28] [398-D; 399-C-E]
                                                               E
     Sharad Birdhichand Sarda v. State of Maharashtra 1984
(4) sec 116, relied on.

     1.2. Admittedly, from the evidence of PW-7, the
cousin of the deceased, it has come on record that the
deceased had a bank account and he was also a member           F
of some society, where his standard signatures were
available. But those standard signatures were not made
the basis lor comparison of his hand-writing alleged to
have been found from his possession. [Para 29] [399-F-
~                                                              G
     1.3. The circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned 'must or should' and not 'may
be' established. There is not only a grammatical but a . H
    386     SUPREME COURT REPORTS             [2010] 7 S.C.R.

A legal distinction between 'may be proved' and 'must be
  or should be proved'. The facts so established should be
  consistent only with the hypothesis of the guilt of the
  accused, that is to say, they should not be explainable
  on any other hypothesis except that the accused is
s guilty. The circumstances should be of a conclusive
  nature and tendency. They should exclude every
  possible hypothesis except th.e one to be proved, and
  there must be a chain of evidence so c~mplete as not to
  leave any reasonable ground for the conclusion
c consistent with the innocence of the accused and must
  show that in all human probability the act must have
  been done by the accused. The cardinal principles with
  regard to the completion of chain of circumstantial
  evidence for holding the appellants guilty could not be
  established at all by the prosecution in the present case.
0
  With such broken chain of circumstantial evidence, at
  many places, it would neither be safe nor prudent to hold
  the appellants guilty. Apart from that, it is extremely
  difficult to come to the conclusion if Exh. PG can fall in
  the category of dying declaration at all or can be said to
E be legally admissible. The said document did not inspire
  confidence, more so, the manner in which it was written.
  After having consumed excessive liquor, it is not
  possible for any one, much less for the deceased to write
  the said dying declaration with so much of precision or
F with steady hand. Dying declaration should be such,
  which should immensely strike to be genuine and stating
  true story of its maker. It should be free from all doubts
  itnd on going through it, an impression has to be
  registered immediately in mind that it is genuine, true and
G not tainted with doubts. It should not be the result of
  tutoring. But dying declaration in the present case did not
  fulfill these conditions. [Paras 29- 31] [400-C-H; 401-A-D]

          1.4. In HWV Cox Medical Jurisprudence and
H
    · NANHAR AND ORS. v. STATE OF HARYANA                387


Toxicology, Seventh Edition, it is described that the blood.    A
reaches all the organs, mainly the brain and interferes
with normal brain functions like judgment and
coordination of muscular movements. The blood alcohol
level influences the behaviour of the person. Obviously,
it would go to show that after going through the                B
handwriting in the alleged dying declaration Ext. PG, it
would have been extremely difficult for him to write it as
he c.ould not have been in a mentally fit condition to have
written the same. Unfortunately, this aspect of the matter
was neither considered by the Trial Judge nor adverted          c
to by the High court and yet the appellants were found
guilty for commission of the offence. The said judgment
and order of conviction passed by the Trial Court and
upheld by the High Court, cannot be sustained in law.
[Paras 32-36] [401-E-H; 402-A-D]
                                                                D
     HWV Cox Medical Jurisprudence and Toxicology;
 Seventh Edition, referred to.

                     Case Law Reference:
     1984 (4) sec 116       relied on          Paras 26, 29     E

     CRIMINAL APPELLATE JURISDICTION : Criminal
 Appeal No. 2496 of 2009.

      From the Judgment and Order dated 07.05.2008 of the
                                                                F
  High Court of Punjab and Haryana at Chandigarh in Criminal
. Appeal No. 919-DB of 2006.

                              WITH

 Criminal Appeal No. 2497 of 2009.                              G
       S.K. Dubey, Prem Malhotra, Mrinamayee Sahu, Ajay Veer
 Singh, B.S. Jain, Mohd. lrshad Hanif, and Susmita Lal (N.P.)
 for the Appellants.

                                                                H
    388      SUPREME COURT REPORTS                 [2010) 7 S.C.R.


A      Manjit Singh, AAG, Kamal Mohan Gupta and Reeta
    Chaudhary for the Respondent.

          The following order of the Court was delivered

                                 ORDER
B
         1. Appellant five in number, in both the appeals, feeling
   aggrieved by the judgment and order of conviction dated 7/5/
   2008 passed in Criminal Appeal No.919-DB/2006 by Division
   Bench of High Court of Punjab and Haryana at Chandigarh,
c  arising out of the judgment and order of conviction dated 24/
   11/2006 and order of sentence dated 25/11/2006 pronounced
   by Additional Sessions Judge, Bhiwani, convicting them for
   commission of offences under Sections 302/149 of the IPC and
   awarding sentence to undergo RI for life, together with fine of
 .
0 Rs.2,000/-, are before us challenging the same on variety of
   grounds.

        2. It may be mentioned herein that initially charge-sheet
   was filed only against four accused namely Nanhar, Virender
   @ Binder, Rampat and Rajbir @ Meda under Sections 306/
E 34 IPC. The name of the fifth accused Urned Singh was added
   subsequently by the Trial Court on an application being filed by
   the prosecution under Section 319 of the Code of Criminal
   Procedure and allowed on 3.6.2004. The order of committal
   makes it clear that the first four appellants were charged and
F prosecuted for commission of offence under Sections 306/34
   IPC. Accordingly it was committed to Court of Sessions for
   being tried for the aforesaid offences. However, on 5.10.2004
   charge was framed by the learned Trial Judge under Sections
 . 302/34 IPC. Even though Urned Singh was added subsequently
G as one of the accused bufthe charge was not altered to one
   under Section 149 of the l.P.C.

          3. Thumbnail sketch of the facts of the case is as under:

          Kartar Singh elder brother of Vijay deceased had filed an
H
     NANHAR AND ORS. v. STATE OF HARYANA                         '389


    application on 27/2/2004 before the Superintendent of Police A
    Bhiwani, alleging therein that he is resident of village Malkosh
    Tehsil Charkhi Dadri, District Bhivani and has been serving
    Armed forces for last 20 years. He has a residential house of
    his own in Rewari Town wherein his family and aged mother
    are residing. His younger brother Vijay, the deceased, was B
    residing in Malkosh and was looking after the agricultural land
    owned by them. One Bhajani wife of Roop Ram, of the same
    village was on visiting terms to the house of Vijay as he was
  · having small flour mill in his house. She used to come for
    grinding of wheat. In the course of time she developed family c
  ·relations with Vijay. There was a rumour in the village that she
· had forced her' own daughter-in-law Kamlesh, wife of Rampat,
     one of the accused herein, to have illicit relations with deceased
     Vijay. In lieu whereof it was said that she had received a sum
                                               ~

     of Rs. 1,000/- from Vijay. It was also the case of the prosecution D
     that V.ijay and Kamlesh wife _of Rampat - appellant No.3 were
     seen in the field by many villagers and they had a doubt about
·. their relationship. In fact, their relationship had become talk of
   . the village. Rampat, the accused, came to know about the said
   . relationship. Therefore, he along with other co-accused Nanhar
     Virender and Rajbir decided to finish Vijay. On coming to know E
     about the motive of the accused, Vijay had left village Malkosh
    ·for some time.

       4. It was further mentioned that aforesaid four accused
  had told PW.11 Dalip, uncle of deceased Vijay, about their              F
  intention. They wanted to take revenge with Vijay on account
  of his relationship with Kamlesh, wife of Rampat. They further
. informed that this illicit relationship will not be tolerated by them
  and therefore they are planning to kill Vijay.
                                                                          G
      5. On 24/2/2004 PW.7 Sudesh, cousin of deceased Vijay
 informed PW.9 Kartar Singh, on telephone that Vijay has been
 murdered and his dead body was lying in his field. It was further
 informed that some poisonous 'substance was administered to
 Vijay by accused Nanhar, Virender and Rajvir and Rampat. He              H
    390      SUPREME 'COURT REPORTS                [2010) 7 S,C.R.


A was asked to reach Malkosh from Rewari immediately. On the
  same night, Kartar Singh reached village Malkosh and found
  his brother dead. On enquiries being made by him it was found
  from the villagers that he has been done away with by_
  administering poisonous substance to him by aforesaid
B persons. This fact stood fortified from a small nQte said to be
  Vijay's dying declaration, written. on the inside paper of the
  match box, recovered from the pocket of his pants. In the same,
  name of Meda Panch was also mentioned that they had mixed
  sulphas in the drink which was administered to him and it is
c likely to take away his life.

        6. The said two pages written complaint dated 27.2.2004
  was submitted by Kartar Singh to Superintendent of Police,
  Bhiwani. A note was endorsed by the Superintendent of Police
  to Deputy Superintendent of Police to look into the matter and
D do the needful. DSP sent it to SHO of Police Station Bhond
  Kalan, who was directed to investigate the matter, in
  accordance with law. The said written complaint was treated
  as an F.l.R. and formal FIR came to be registered on 61312004,
  that is to say almost after 11 days from the date of occurrence
E of the incident.

         7. It is pertinent to mention here that on 24.2.2004, PW.11
    Dalip while proceeding to lodge the report had met ASI Raj
    Kumar (reported to be dead) at the bus stop of Malkosh and
F   had orally informed him about the incident. His statement to the
    police was entered into Daily Diary (Rojnamcha) by Sub-
    Inspector Raj Kumar at the Police Station.

          8. On such report being received by him, ASI Raj Kumar
    r~ached the spot and prepared the inquest report Ext.PN. In · ·
G eolumn No.12, dealing with in what manner or by what weapon
  of instrument such marks or injuries appeared to have been ~
  inflicted, he recorded: "appears to have taken poisonous .
  substance".

H         9. In the same inquest.~eport, ASI Raj Kumar recorded
    NANHAR AND ORS. v. STATE OF HARYANA                      391


detailed version of Dalip as was given to him. According to          A
Dalip, his nephew Vijay either took poisonous substance
himself on account of the fact that villagers had come to know
about his illicit relationship with Kamlesh, wife of Rampat or
someone had forcibly administered it to him. He further got it
recorded t.hat he had left his other nephew PW.7 Sudesh at the       B·
place of occurrence for the safety of dead body and had come
to the Police Station. But since ASI Raj Kumar met him at the
bus stop of Malkosh, he is getting the said statement recorded.

        10. ASI Raj Kumar recorded further in the said inquest
report that after getting this information he went to the place of   C
occurrence and found dead body of Vijay. The same was lying
in a straight posture, mouth and eyes were found to be little
open. He was wearing terricot pants along with ready made
shi.rt but no external injuries were found on the body of the
deceased. Height of the deceased was about 5' 9". Mouth was          D
full of froth, a steel glass t:ontaining poisonous substance, and
two bottles containing water and little liquor were found.
However, Raj Kumar was not able to come to definite
conclusion with regard to cause of death. Therefore, he thought
 it fit to wait till post- mortem report was received by him.        E

    . 11. It is pertinent to mention here that neither in the
statement of Dalip nor in the Inquest Report, there was any
mention with regard to recovery of hand written dying
declaration said to have been ascribed by deceased, from his         F
pants.

     12. Recovery rriemo was prepared by Raj Kumar, ASI in
presence of two witnesses namely Dalip (PW.11) and Sudesh
(PW. 7). In the same it is said following articles were seized
from the spot:- one hand written note authored by deceased           G
Vijay, on the cover of the match box, two separate bottles, one
containing water and another containing little liquor, one steel
glass with name of Rampat ingraved. Earth containing white
powder said to be. poisonous substance was also collected.
                                                                     H
    392      SUPREME COURT REPORTS                [2010) 7 S.C.R.


A They all were sealed in different parcels and taken intopolice
  custody.

          13. Translated copy of Ext.PG, dying declaration has been
    filed. The exact Hindi version written by him in the slip reads
    as thus:
B
          "''Daru ke sath Sulphas pila rahe hai. Marenge."

                                                (underlining by us)

C        The said Inquest Report was prepared at the spot. In the
    site plan prepared there, neither recovery of pocket telephone
    directory nor recovery of pen was made. The statements of
    witnesses were recorded.

       14. As mentioned hereinabove, initially Raj Kumar, ASI
D (now dead) did not find commission of any cognizable offence,
  thus he dropped the proceedings. Only after registration of the
  FIR on 6/3/2004, ·the criminal machinery was set into motion.

        15. Post-mortem on the dead body of the deceased Vijay ·
E was performed by PW.4 Dr. Kuldeep Singh. Post-Mortem
  Report is marked as Ext.PD. Doctor has opined that deceased
  was aged about 32 years, well built, having a height of about
  5' 6", appears tobe more appropriate than what was mentioned
  in the Inquest. He has further categorically recorded that on the
  dead body no bruises or wounds were found. Bladder and
F stomach both were found to be empty. The time of death was
  shown to be 36 hours prior to performing of post mortem. The
  cause of death was shown to be excessive drinking of alcohol
  with poisonous substance. On the strength of FSL report
  (Ext.P .1 ), poisonous substance was found to be aluminium
G phosphide. According to the doctor, consumption of excessive
  alcohol coupled with poisonous substance was sufficient to
  cause death in ordinary course of nature.

          16. From the post-mortem report Exh. PE as also from the
H
     NANHAR AND ORS. v. STATE OF HARYANA                    393


deposition of Dr. Kuldeep Singh-PW.4, either deceased had           A
met with homicidal death or committed suicide.

      17. Now the question that crops up for consideration
before us is whether it was the act of the aforesaid five
appellants, on account of which he met with the homicidal death     8
or it was Vijay himself, with an intention to save his status and
glory in the society, had consumed poisonous substance,
thereby committed suicide.

     18. Prosecution in all had examined 12 witnesses on its
behalf, to bring home the charges levelled against the C
appellaots. The accused had generally denied the charges
levelled against them and submitted that Vijay had committed
suicide, on account of his misdeeds. They pleaded innocence.
They deposed that they have falsely been roped in by th.e
prosecution on the strength of manufactured and engineered D
documents. The appellants did not lead any evidence on their
behalf.

     19. On appreciation of evidence available on record,
learned Trial Judge found them guilty for commission of E
offences under Sections 302/149 of the IPC and awarded them
sentences as mentioned hereinabove. The appeal filed by
them in the High Court of Punjab and Haryana was dismissed
and the findings recorded by the Trial Court were affirmed and
the judgment and order of conviction of the Trial Court was F
maintained. Hence these appeals.

       20. We have accordingly heard learned senior counsel Mr.
  S.K: Dubey with Ms. Mrinamayee Sahu and Sh. Ajay Beer
  Singh for the appellants and Mr. Kamal Mohan Gupta, learned
  counsel for the respondent and perused the re~ord. Evidence G
  adduced have also been critically and microscopically gone
· through by us.

     21. Sheet anchor of the prosecution story has been the
alleged dying declaration Exh. PG said to ha~ been written          H
    394       SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A   by deceased Vijay, on the inside paper of a match box. English
    translation thereof reads thus:

          Rajbir Singh S/o Bhuru

          Rampat S/o Ruppa
B
          Binder

          Nanhar

          are drinking liquor by mixing the Sulphas and would kill.
c
        It was written in vernacular language and in Hindi, as
    mentioned earlier, reads as under: "Daru ke sath Sulphas pila
    rahe hai. Marenge."

          22. The aforesaid dying declaration has been found to be
0
    sufficient by the tv.io courts below and appellants have been
    found guilty for commission of offences under Sections 302/
    149 of the l.P.C. and have been awarded sentence as
    mentioned hereinabove.

E        23. Whether the same would fall in the category of dying
    declaration and if so, if it was sufficient to uphold the conviction
    and sentence·. awarded to them on the strength thereof, is
    required to be examined by us.

F        24. After critically going through the documents, not only
    Exh. PG but also the oral and other documentary evidence
    available on record, we find the following lacunae, shortcoming,
    lapses and deficiencies in the prosecution story:

               (i) the said dying declaration has not been signed
G         by deceased Vijay.

                (ii) If the appellants were really present when the said
          dying declaration was said to have been written, then
          obviously they would not have allowed him to write the said
H         dying declaration.
NANHAR AND ORS. v. STATE OF HARYANA                      395 ·


      (iii) No recovery of pen was made from the site or         A
from the person of the the deceased. ·

      (iv) There is nothing either in the site plan or in the
recovery memo to suggest that the deceased was able to
get any platform on which he could have written the said
                                                                 8
dying declaration.

     (v) The inner pocket of the match box together with
match sticks was not at all recovered.      ·

      (vi) It is not established by the prosecution that the .   c
deceased was a smoker of bidi or cigarette. No butts or
bidis were recovered from the place of.occurrence.

       (vii) As per the post-mortem report performed on
25.2.2004, the death had occurred within 36 hours from
the time of performing of the post-mortem, meaning D
thereby that the incident must have taken place some time /
in the night.

      (viii) There is nothing on record to show availability
of electricity or any source of light at the spot.               E

      (ix) In the Inquest Report prepared by ASI Raj Kumar
(now dead), there is no mention with regard to the recovery
of the dying declaration Exh. PG or recovery of pocket.
index telephone directory.
                                                                 F
      (x) Similarly, .in the site plan prepared on the spot,
there is no mention with regard to the recovery of dying
declaration, pen or pocket diary from the place of
occurrence or from the body of the deceased.
                                                                 G
      (xi) No finger prints either of the deceased or of the
accused were taken, even though the same were.
available.

      (xii) Report of the Chemical Examiner dated                H
    396      SUPREME COURT REPORTS                 [2010] 7 S.C.R.

A         6.10.2004 shows that the packets were received by him
          only on 10.3.2004 but no remnants of poisonous
          substance were found either in the two bottles or in the
          steer glass but were found only in the earth so collected
          from the place of occurrence. The poisonous substance
B         has been described as Aluminium Phosphide.

                (xiii) Except for the evidence of PW-7 Sudesh, PW-
          8 Ramesh, PW-9 Kartar Singh, PW-11 Dalip, who all
          happened to be closely related to the deceased, evidence
          of an independent witness was not recorded, even though
c         there is evidence available to show that many villagers
          were available.

                (xiv) The evidence of PW-7 Sudesh and PW-11
          Dalip is highly contradictory inasmuch as Sudesh has not
D         deposed anything with regard to recovery of pocket index
          telephone diary from the person of the deceased; whereas
          Dalip has categorically deposed with regard to recovery
          of pocket index telephone diary from his possession.

E         It is pertinent to mention here that PW-7 Sudesh and PW-
    11 Dalip are the witnesses to the recovery memo said to have
    been prepared by ASI Raj Kumar who is said to have died
    during the pendency of the sessions trial, also does not record
    its recovery.

F               (xv) It is extremely difficult to comprehend if the
          deceased was in a position to write the dying declaration,
          more so, after having consumed excessive amount of
          Alcohol mixed with poisonous substance. Fact of excessive
          amount of Alcohol mixed with poison stands proved from
G         the evidence of PW-4 Dr. Kuldeep Singh, who had
          performed post-mortem(Exh. PD) on the person of the
          deceased.
               (xvi) The post-moretm report further reveals that the
          deceased was aged about 32 years having a height of 5
H
    NANHAR AND ORS. v. STATE OF HARYANA                      397


    feet 6 inches with a robust body. It is inconceivable to         A
    believe that if the appellants would have tried to administer
    him Alcohol mixed with poisonous substance, he would not
    have resisted to the same or at least would not have made
    any hue and cry. ~t also stands proved from the evidence
    of PW-4 Dr. Kuldeep Singh and the post-mortem report             B
    that no bruises and external injuries were found on the
    person of the deceased.

          (xvii) No explanation has been offered by the
    prosecution as to why the blank pages of the pocket index
    telephone diary were not used to scribe it, if the same had      C
    been recovered from his possession.

          (xviii) The doctrine of motiv,e could not be established
    by the prosecution at all. Thusfanother ground of holding·
    them guilty on account of motive, completely shatte.rs the D
    prosecution story and falls flat.

          (xix) It could not be established that dying declaration
    and pocket index telephone diary belonged to the
    deceased only. This aspect of the matter has not been            E
    established by the prosecution.

          (xx) Even if it stood established from the opinion of
    the Handwriting Expert that dying declaration and pocket
    index telephone diary were in the same hand, still it could
    not be established that it belonged to the deceased only.        F

         (xxi) Possibility of implanting of these documents
    cannot be ruled out.

          (xxii) The said dying declaration does not inspire         G
    confidence, much less to hold the appellants guilty for
    commission of the said offence.

    25. In fact, the salient features noted above with regard to
the deficiencies ·are sufficient, in our considered opinion, to
come to the conclusion that the Courts below committed grave         H
    398       SUPREME COURT REPORTS                   (2010] 7 S.C.R.


A error in holding the appellants guilty for commission of offence
  under Sections 302/149 of the l.P.C.

          But with intention to fortify our views, we would like to
    reiterate what this Court has already held in its earlier leading
    judgments.
8
       26. Almost 25 years back, this Court in celebrated
  judgment in Sharad Birdhichand Sarda vs. State of
  Maharashtra, reported in 1984 (4) SCC 116, held in paragraph
  151 and 161 thereof that it is well settled law that the
C prosecution must stand or fall on its own legs and it cannot
  derive any strength form the weaknesses of the defence. For
  ready reference, the said paragraphs are reproduced
  hereunder:

D         "151. It is well settled that the prosecution must stand or
          fall on its own legs and it cannot derive any strength from
          the weakness of the defence. This is trite law and no
          decision has taken a contrary view. What some cases have
          held is only this: where various links in a chain are in
          themselves complete than a false plea or a false defence
E
          may be called into aid only to lend assurance to the Court.
          In other words, before using the additional link it must be
          proved that all the links in the chain are complete and do
          not suffer from any infirmity. It is not the law that where is
          any infirmity or lacuna in the prosecution case, the same
F         could be cured or supplied by a false defence or a plea
          which is not accepted by a Court.

          161. This Court, therefore, has in no way departed from
          the five conditions laid down in Hanumant's case (supra).
G         Unfortunately, however, the High Court also seems to have
          misconstrued this decision and used the so-called false
          defence put up by the appellant as one of the additional
          circumstances connected with the chain. There is a vital
          difference between an incomplete chain of circumstances
H         and a circumstance which, after the chain is complete, is
     NANHAR AND ORS. v. STATE OF HARYANA                     399


     added to it merely to reinforce the conclusion of the court. A
     Where the prosecution is unable to prove any of the·
     essential principles laid down in Hanumant's case, the
     High Court cannot supply the weakness or the lacuna by
     taking aid of or recourse to a false defence or a false plea.
     We are, therefore, unable to accept the argument of the B
     Additional Solicitor-General."

       27. Similarly, when the case is based on circumstantial
 evidence, it has now been well settled by several authorities of
 this Court that the chain of circumstances should be complete
 in all respect and the pointer of guilt should continuously be on   C
 the accused only. Any deviation of the pointer of guilt on the
 accused would enure him the benefit of doubt.

       28. No doubt it is true that ASI Raj Kumar, who had
  prepared the Inquest Report had died during the pendency of        o
  the trial, but no reasons have been assigned as to why other
  police personnel present along with ASI Raj Kumar, were not
· examined. They could have at least explained the true picture
  and proved recovery of dying declaration and pocket telephone
  index diary from possession of deceased Vijay.                     E

       29. Admittedly, from the evidence of PW-7 Sudesh, it has
 come on record that the deceased Vijay was having bank
 account and he was also a member of some society, where
 his standard signatures were available. But those standard
 signatures were not made the basis for comparison of his hand-      F
 writing alleged to have been found from his possession. theIn
 case of Sharad Birdhichand Sarda (supra), it has been dealt
 with elaborately as to how the chain of circumstantial evidence
 has to be complete in all respect The relevant paragraphs 153
 & 154 are reproduced herein below:                                  G

      "153. A close analysis of this decision would show that the
      following conditions must be fulfilled before a case against
      an accused can be said to be fully established:
                                                                     H
    400      SUPREME COURT REPORTS                  [2010) 7 S.C.R.


A         (1) the circumstances from which the conclusion of guilt is
          to be drawn should be fully established. It may be noted
          here that this Court indicated that the circumstances
          concerned 'must or should' and not 'may be' established.
          There is not only a grammatical but a legal distinction
B         between 'may be proved' and 'must be or should be
          proved' as was held by this Court in Shivaji Sahabrao
          Bobade & Anr. v. State of Maharashtra(') where the
          following observations were made:

                'Certainly, it is a primary principle that the accused
c         must be and not merely may be guilty before a court can
          convict and the mental distance between 'may be' and
          'must be' is long and divides vague conjectures from sure
          conclusions.'

D         (2) The facts so established shollld be consistent only with
          the hypothesis of the guilt of the accused, that is to say.
          they should not be explainable on any other hypothesis
          except that the accused is guilty.

          (3) The circumstances should be of a conclusive nature
E         and tendency.

          (4) They should exclude every possible hypothesis except
          the one to be proved, and 164 (5) There must be a chain
          of evidence so complete as not to leave any reasonable
F         ground 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.

          154. These five golden principles, if we may say so,
          constitute the panchsheel of the proof of a case based on
G
          circumstantial evidence."

      30. The aforesaid cardinal principles with regard to the
  completion of chain of circumstantial evidence for holding the
  appellants guilty could not be established at all by the
H prosecution in the present case. With such broken chain of
     NANHAR AND ORS. v. STATE OF HARYANA                      401


circumstantial evidence, at many places, it would neither be          A
safe nor prudent to hold the appellants guilty.

      31. Apart from the above, it is extremely difficult for us to
come to the conclusion if Exh. PG can fall in the category of
dying declaration at all or can be said to be legally admissible.     8
Even though we have categorically, minutely and with
microscopic eyes gone through the said document number of
times, but it does not inspire confidence, more so, the manner
in which it has been written. We have already mentioned
hereinabove that after having consumed excessive liquor, it           C
would not have been possible for any one, much less for Vijay,
to have written the said dying declaration with so much of
precision or with steady hand. In our considered opinion, dying
declaration should be such.which should immensely strike to
be genuine and stating true story of its maker. It should be free
from all doubts and on going through it, an impression has to         D
 be registered immediately in mind that it is genuine, true and
 not tainted with doubts. It should not be the result of tutoring.
 But dying declaration in the present case does not fulfill these
 conditions.
                                                                      E
      32. In HWV Cox Medical Jurisprudence and Toxicology,
Seventh Edition, at page 936, under title "Alcohols", deals with
handwriting after consumption of liquor. While coming to the
general behaviour after excessive drinking, apart from other
things, it has specifically been noted: "Character of hand-           F
writing: There is often difficulty with letters, N, Mand W."

    33. In the same book, it is further described that blood
reaches all the organs, mainly the brain and interferes with
normal brain functions like judgment and coordination of
muscular movements. The blood alcohol level influences the            G
behaviour of the person. The amount of alcohol present in the
stomach and intestine has no effect but only indicates the
ingestion.

     34. Obviously, it would go to show and we also come to           H
    402       SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A the conclusion that after going through the handwriting, as has
  been found by us in the allegeddying declaration Ext. PG, it
  would have been extremely difficult for him to write it as he could
  not have been in a mentally fit condition to have written the
  same.
B
       35. Unfortunately, this aspect of the matter has neither been
  considered by the learned Trial Judge nor has been adverted
  to by the Division Bench of the High court and yet the appellants
  have been found guilty for commission of the aforesaid offence.

C      36. In our considered opinion, the said judgment and order
  of conviction passed by the Trial Court and upheld by the High
  Court, cannot be sustained in law. They are accordingly set
  aside and quashed. As a necessary consequence thereof, the
  appellants would be set at liberty forthwith, if not required in
D connection with any other criminal case.

           Both the appeals are allowed accordingly.

    D.G.                                          Appeals allowed.