Virender @ Dhulla vs Central Bureau Of Investigation on 24 January, 2018

IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 268/2015

% Reserved on: December 14, 2017
Date of decision: January 24, 2018

VIRENDER @ DHULLA ….. Appellant
Through: Mr. Rasheed Hashmi, Advocate.

versus

CENTRAL BUREAU OF INVESTIGATION ….. Respondent
Through: Mr. Sanjeev Bhandari, Spl. PP with
Mr. Prateek Kumar, Advocate.

CORAM:
JUSTICE S.MURALIDHAR
JUSTICE I.S.MEHTA

JUDGEMENT

I.S.Mehta, J.

1. Instant appeal is arising out of judgment dated 30th September, 2014 and
order on sentence dated 3rd November, 2014 passed by the learned
Additional Sessions Judge, Tis Hazari Court, in Case RC.3(S)/98/SCB-
II/DLI registered at Police Station S.P. Badli under Sections 302/316 IPC,
whereby the appellant-accused has been sentenced to undergo life
imprisonment along with fine of Rs.30,000/- for the offence punishable
under
Section 302 IPC and in default of payment of fine to undergo simple
imprisonment for one year; the appellant-accused has also been sentenced to
rigorous imprisonment of further ten years along with fine of Rs. 20,000/-

CRL.A. 268/2015 Page 1 of 19

for the offence punishable under Section 316 IPC and in default of payment
of fine, to undergo simple imprisonment for one year.

2. The brief facts stated are that initially an FIR No. 317 of 1996 under
Sections 394, 34 IPC was registered at Police Station Samaipur Badli, Delhi
on the basis of the statement given by the complainant i.e. Sanjay Rathore
(since dead) at Santom Hospital to SI V.N. Mishra on 27th of April, 1996.
Subsequently, father of the deceased victim Kishan Chand Rathore, filed
Writ Petition No. 282 of 1997 before the Hon’ble Supreme Court of India
and the same was allowed and further investigation was handed over to CBI.
Consequently, CBI took over the investigation on 4th September, 1998 vide
case No. RC.3(S)/98/SCB-II/DLI.

3. The prosecution case set up by Sanjay Rathore in FIR No. 317 of 1996 is
that on 27th of April, 1996, Sanjay Rathore along with his wife (Veena:
deceased victim), mother (Smt. Kamla) and daughter (Ms. Kajal) on their
return from a marriage party had gone in his car to visit his godown in
Shahbad Daulatpur, Delhi at around 8.00 p.m. on 27th of April, 1996. On
opening the main gate it was noticed that there was no light and accordingly
Sanjay Rathore proceeded to buy a candle. When he reached near his car,
three young boys commanded him to hand over whatever he had and on his
refusal one of them stabbed him in the left side of his abdomen. Those boys
started removing ornaments of his mother and wife besides beating them. He
raised an alarm and rushed to the godown of Kulwant Rana where a number
of persons were sitting. On seeing his injuries they rushed to the godown
and removed his wife and mother to Santom Hospital.

CRL.A. 268/2015 Page 2 of 19

4. Subsequently, the aforesaid FIR No. 317 of 1996 was investigated by the
CBI and it was revealed that Sanjay Rathore had been having an affair with
Ms. Alka since a very long time. Sanjay was married to Smt. Veena in 1985
but his relation with Ms. Alka continued. On 5 th February, 1993 Sanjay filed
a divorce petition seeking divorce from Ms. Veena on the ground that Ms.
Veena had deserted him for the last two years whereas Ms. Veena was
residing with him in the same house all along and gave birth to two children,
one in 1992 and one in May 1994. Efforts of Sanjay Rathore to obtain ex-
parte divorce could not succeed and under compelling circumstances he
withdrew his divorce petition on 27thApril, 1993.

5. Investigation also revealed that in a marriage party held in 1995 there was
a heated argument between Sanjay and brother of his wife (Sanjeev)
wherein Sanjay threatened Sanjeev of dire consequences. In the year 1996,
Sanjay and Alka entered into a conspiracy with Advocate Sudesh Kumar
Sharma, Virender, Satish and Raju to commit murder of Ms. Veena who was
at advance stage of pregnancy. In pursuance of conspiracy Sanjay Rathore
took Veena to his godown at Shahbad on 27th April, 1996 after attending a
marriage party at Bhagwati Garden where dinner was to be served at 9:00
pm and baraat was to reach at 8:00 pm. Sanjay and his mother, wife, and
daughter Kajal went to the venue of marriage at 7:00 pm without taking
dinner and reached the godown at 8:00 pm. There Veena was brutally hit on
her head and was shot in her abdomen. Accused persons also attempted to
fire on Veena with another .315 bore katta. The cartridge fell down and was
recovered from the place of occurrence by SI B.N. Mishra of Police Station

CRL.A. 268/2015 Page 3 of 19
Samaipur Badli in case FIR No. 317/1996.

6. Ms. Veena succumbed to the injuries at 5:10 am on 28th April, 1996 in
Santom Hospital. On 26th July, 2000 accused persons Virender, Satish @
Tej Singh, Raju and Alka were arrested along with Advocate S.K. Sharma
(since dead). Accused persons namely Virender, Satish, and Raju made
disclosure statements implicating themselves and others together with the
fact that the country made katta of .38 bore and .315 bore which were used
by them while committing the murder of Ms. Veena, had already been
recovered by police of Noida Sector 20 in case FIR No. 777 of 1997 at the
instance of Virender and Satish on 16thSeptember, 1997.

7. The stolen Maruti Van No. UP-14A 8634 used in the commission of
offence was recovered from possession of Virender with fake registration
number and fake registration certificate by Krishan Nagar Police Station
Delhi in FIR No. 258 of 1996. A report regarding theft of this Maruti Van
No. DL 3CE 1528 was already lodged by Sagar Chand Jain and it was
recovered from accused Virender with number plate of UP 14A 8634 by
tampering with the registration plate of Maruti Van No. UP 14A 8031.
Kattas which were recovered by Noida police was also taken into custody by
the CBI and were sent to FSL for opinion.

8. One .38 fired bullet was found in the abdomen of Ms. Veena matched
with the fire arm .38 bore and the live cartridge recovered from the spot was
also opined to have been fired from the .315 bore katta recovered by the
police as per ballistic report. The iron rod used in the commission of offence

CRL.A. 268/2015 Page 4 of 19
was also recovered by Noida Police and then seized by CBI in this case.

9. The CBI filed charge sheet on 24th October, 2000 under Section 120-B
read with
Sections 302, 316, 201 IPC against Sanjay Rathore (since
deceased), Virender @ Dhulla (appellant herein), Satish @ Tej Singh @
Surjeet Singh @ Dilip Singh, Raju, Alka and Sudesh Kumar Sharma. The
learned Trial Court framed charges against all the six accused persons on
12thFebruary, 2002.

10. During the pendency of trial, out of the six accused persons three
accused persons died i.e. Satish @ Tej Singh died in June 2010, Sanjay
Rathore died in June 2013 and Sudesh Kumar Sharma died in June 2013.
The cases against them were abated.

11. The learned Additional Sessions Judge, Tis Hazari Court by the
judgment dated 30th September, 2014 acquitted Raju and Alka for want of
evidence and convicted Virender (appellant herein) for the offences
punishable under
Sections 302/316 IPC.

12. Aggrieved from the above said order, the appellant-accused has filed the
present appeal.

13. The learned counsel for the appellant-accused has submitted that there is
no sufficient material evidence to bring home the guilt of the accused under
Sections 302/316 IPC. The learned counsel for the appellant-accused has
further submitted that there is no eye-witness in the instant case and the case

CRL.A. 268/2015 Page 5 of 19
is based on circumstantial evidence. He has further submitted that the
alleged pointing out of the place of occurrence by the co-accused persons
and the recovery of weapon of offence by the police in case FIR No. 777 of
1997 does not connect the appellant-accused with the case and at same time
it does not inspire confidence to bring home the guilt of the accused.

14. Per contra, the learned Special Public Prosecutor, CBI has submitted that
there is ample and sufficient evidence to connect the appellant-accused for
commission of offence. The appellant-accused was arrested on 26thJuly,
2000 and he made disclosure statement on 1stAugust, 2000.

15. The case in hand is based on circumstantial evidence. The circumstances
as shown qua the present appellant-accused are on the basis of disclosure
statement made on 26th July, 2000 and on the basis of recovery of fire arms
and vehicle recovered on 16th September, 1997 and 28thJune, 1996
respectively in FIR No. 777 of 1997 and FIR No. 258 of 1996.

16. The Doctrine of Confirmation is based on the principle that, if any fact is
discovered in a search made on the strength of any information obtained
from an accused, which is in his exclusive knowledge of fact, the same
would be relevant fact to bring home the guilt of the accused.

17. The “Fact” as per Section 3 of the Indian Evidence Act, 1872 (IEA)
means and includes-

(1) any thing, state of things, or relation of things,
capable of being perceived by the senses;

CRL.A. 268/2015 Page 6 of 19

(2) any mental condition of which any person is
conscious.”

18. The “Relevant Fact” as per Section 3 IEA means
The relevant fact is said to be relevant to another when
the one is connected with the other in any of the ways
referred to in the provisions of this Act relating to the
relevancy of facts.

19. The fact under Section 27 of the IEA is a ‘fact’ which is a proviso to
Section 25, 26 of the IEA for admitting the evidence to the extent of
discovery of any fact in the disclosure of the accused relating to fact which
is of his exclusive knowledge of committing the crime/guilt which relates
distinctly to that effect.

20. The aforesaid principle was laid down by the Privy Council in Pulukuri
Kottaya and others v. Emperor, AIR 1947 PC 67 and later the Apex Court
in
State of Maharashtra v. Damu, AIR 2000 SC 1691, in the following
words:

“37. …It is now well-settled that recovery of an
object is not discovery of a fact as envisaged in the
section. The decision of Privy Council in Pullukurn
Kottayya v. Emperor, AIR 1947 PC 67 as the most
quoted authority for supporting the interpretation that
the “fact discovered” envisaged in the Section
embraces the place from which the object was
produced, the knowledge of the accused as to it, but
the information given must relate distinctly to that
effect.”

21. The Apex Court while dealing with Section 27 of the IEA in the case of

CRL.A. 268/2015 Page 7 of 19
Amitsingh Bhikamsingh Thakur v. State of Maharashtra,(2007) 2 SCC
310, further explained:

(1) The fact of which evidence is sought to be given
must be relevant to the issue. It must be borne in mind
that the provision has nothing to do with question of
relevancy. The relevancy of the fact discovered must
be established according to the prescriptions relating
to relevancy of other evidence connecting it with the
crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.

(3) The discovery must have been in consequence of
some information received from the accused and not
by the accused’s own act.

(4) The person giving the information must be accused
of any offence.

(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of
information received from an accused in custody
must be deposed to.

(7) Thereupon only that portion of the information
which relates distinctly or strictly to the fact
discovered can be proved. The rest is inadmissible.”

22. It is an admitted case of the prosecution that the instant case is based on
circumstantial evidence and there is no eye-witness in the present case. The
law relating to circumstantial evidence is well settled. In Hanumant Govind
Nargundkar v. State of Madhya Pradesh,AIR 1952 SC 343, it was held:-

“It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of
guilt is to be drawn should be in the first instance be fully established
and all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the circumstances

CRL.A. 268/2015 Page 8 of 19
should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as to
show that within all human probability the act must have been done
by the accused.”

23. The Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622 laid down the following principles governing the law
relating to circumstantial evidence which is reproduced as under:-

“1. The circumstances from which the conclusion of guilt
is to be drawn should be fully established;

2. 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 Crl. A 805 of 2017 Page 23 of 36 accused
is guilty;

3. The circumstances should be of a conclusive nature
and tendency;

4. They should exclude every possible hypothesis except
the one to be proved;

5. There must be a chain of evidence so complete as not
to leave any reasonable 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.”

24. Further the Apex Court in State of Haryana v. Jagbir Singh, AIR 2003

CRL.A. 268/2015 Page 9 of 19
SC 4377 has made the following observation as under:-

“It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the
guilt of any other person. (
See Hukam Singh v. State of
Rajasthan AIR 1977 SC 1063;
Eradu and Ors. v. State of
Hyderabad AIR 1956 SC 316;
Earabhadrappa v. State of
Karnataka AIR 1983 SC 446;
State of U.P. v. Sukhbasi
and Ors. AIR 1985 SC 1224;
Balwinder Singh v. State of
Punjab AIR 1987 SC 350;
Ashok Kumar Chatterjee v.
State of M.P. AIR 1989 SC 1890. The circumstances from
which an inference as to the guilt of the accused is drawn
have to be proved beyond reasonable doubt and have to
be shown to be closely connected with the principal fact
sought to be inferred from those circumstances.
In
Bhagat Ram v. State of Punjab AIR 1954 SC 621, it was
laid down that where the case depends upon the
conclusion drawn from circumstances the cumulative
effect of the circumstances must be such as to negative
the innocence of the accused and bring the offences home
beyond any reasonable doubt. We may also make a
reference to a decision of this Court in
C. Chenga Reddy
and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it
has been observed thus: Crl. A 805 of 2017 Page 24 of
36 “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….”

25. Here, the relevant facts emerging on record are:-

CRL.A. 268/2015 Page 10 of 19

(i) An FIR No. 317/1996 was registered at Police Station
Samaipur Badli by Sanjay Rathore on 27.04.1996.

(ii) The victim died at 5:10 am on 28.04.1996 as per her
death summary i.e. Ex.PW 31/D.

(iii) CBI took over the investigation and registered a separate
FIR vide case No.RC.3(S)/98/SCB-II/DLI on 04.09.1998.

(iv) Virender was arrested in the present case on 26.07.2000
and made disclosure statement on 26.07.2000. Consequent to his
disclosure he allege to got recovered the weapon of offence i.e. desi
katta of .315 bore i.e. Ex. 48/B , desi revolver of .38 bore i.e. Ex.
48/C which is already been recovered by Noida Sector 20 Police in
FIR No. 777/1997 and the Maruti Van UP-14A 8634 was recovered
from the possession of Virender in FIR No. 258 of 1996 under
Sections 25/54/59 Arms Act.

RECOVERY OF ARTICLES

26. SI Bahadur Singh was examined as PW48. He has deposed that on
16.09.1997 accused Tej Singh, Shishu Pal and Virender (Appellant herein)
were apprehended in FIR Nos.777/97 and 778/97 and they made disclosure
statements. He further deposed that in pursuance to the disclosure
statements, the following recoveries were made: –

(i) Iron Rod i.e. Ex.PW 48/A
(ii) Desi Katta of .315 bore i.e. Ex.PW48/B
(iii) Desi Revolver of .38 bore i.e. Ex. PW48/C

27. The recoveries effected were in pursuance to the joint disclosure

CRL.A. 268/2015 Page 11 of 19
statement i.e. Tej Singh, Shishu Pal and Virender. The said admission on the
part of PW-48 is reproduced as under:-

“We had reached Khora colony at about 2.00 a.m.
All three accused i.e. Tej Singh, Shishu Pal and
Virender had collectively pointed out towards
room of Jaipal.”

It is an admitted fact coming on record that Shishu Pal is not a party to
the present proceedings.

28. As per the statement of PW-48 the disclosure statement is a joint
statement. The statement of PW-48 does not disclose who disclosed what
and who exactly recovered what at the manufacturing factory of Jai Pal.

29. Further, the alleged recovery shown in the instant case is from the room
of one Jaipal where Jaipal along with his co-worker Surender was already
present and the owner of the room Jaipal when he saw the police party
approaching the room, ran away. The alleged room was opened and found in
possession of Jaipal and Surender were Tamancha, Aari, blower, etc. The
recovery of incriminating articles is alleged to be recovered from a thaila
which was opened in the room/factory. The owner of the room was one
Ramphal who was also arrested. The recovery memo Ex. PW-48/B shows
that the recovery was effected at the behest of Virender, Shishu Pal, Tej
Singh.

30. It is a further fact coming on the record that all the accused persons
except Sanjay Rathore were arrested in case FIR No.777/1997 dated

CRL.A. 268/2015 Page 12 of 19
16.09.1997 of PS-Sector-20, Gautam Budh Nagar, Noida, U.P. The alleged
recovery memo Ex.PW-48/B shows that the alleged recovery was effected
on the behest of Virender, Shishupal, and Tej Singh.

31. The FIR No.777/97 is an independent FIR and the same has to be dealt
with separately in the competent court of jurisdiction.

32. The appellant-accused Virender is stated to have been arrested on
28.06.1996 in FIR No.258/1996, under
Section 25/54/59 Arms Act,
registered at PS-Krishna Nagar. As per the IO K.P.Singh (PW-75) he did not
find any incriminating evidence qua the appellant-accused between
04.09.1998 to 25.07.2000. The said admission is reproduced as under:

“Between the period 4.9.98 till 25.7.2000, I had not
found any incriminating evidence against any of
the accused persons except Sanjay Rathore and
Alka.”

33. The appellant-accused despite remaining in the police custody on
28.06.1996 and on 16.09.1997 in FIR No.258/1996 and in FIR No.777/1997
respectively has not made any disclosure statement of commission of
offence in the present case i.e. (RC.3(S)/98/SCB-II/DLI dated 04.09.1998
registered by the CBI under
Sections 302/316 IPC on 04.09.1998 till
26.07.2000) which raises doubt on the version of the prosecution whether
the disclosure alleged to be made in the present case is in fact a disclosure
made by the appellant-accused.

CRL.A. 268/2015 Page 13 of 19

34. Admittedly the IO K.P.Singh (PW-75) during his cross-examination has
admitted that he has not found any incriminating evidence against any
accused persons from 04.09.1998 till 25.07.2000. The alleged recovery in
the instant case brings nothing except the recovery alleged to be made in two
FIRs viz. FIR No.258/1996 dated 28.06.1996 and FIR No.777/1997 dated
16.09.1997. The recovery of iron rod, country made revolver and desi katta
alleged to be got effected from the manufacturing factory of arms and
ammunitions of Jaipal was already in the knowledge of the prosecution,
therefore, the alleged recovery does not inspire confidence within the
meaning of Section 27 of the IEA.

WEAPON OF OFFENCE

35. The prosecution has relied upon the weapon of offence in the instant
case to be Iron Rod (Ex.PW 48/A), Desi Katta of .315 bore (Ex.PW48/B)
and Desi Revolver of .38 bore (Ex. PW48/C). The disclosure statement of
the appellant-accused Ex.PW-46/B dated 26.07.2000 and pointing out memo
Ex.PW-61/A does not ipso facto reveal using of weapons of offence Ex.PW
48/A, Ex.PW48/B and Ex. PW48/C on the date of incident by the appellant-
accused. The said weapons of offence were already seized in FIR
Nos.777/1997 and 258/1996.

36. There is no evidence coming on record that the weapons of offence
Ex.PW48/A, Ex.PW48/B and Ex.PW48/C were in exclusive domain of any
of the accused persons. The alleged recovery is shown from an open room of
one Jaipal where the factory of arms and ammunition was running and was
accessible to all. Therefore, the prosecution has failed to discharge its onus

CRL.A. 268/2015 Page 14 of 19
of recovery within the meaning of
Section 27 of the Indian Evidence Act.

RECOVERY OF MARUTI VAN

37. The prosecution has examined SI Laxman Singh (PW-55). It is an
admitted case that the Maruti Van is alleged to be recovered in FIR No.
258/1996. It is also an admitted fact coming on record that the appellant-
accused has not made any disclosure in the said case pertaining to the
present FIR i.e. Case RC.3(S)/98/SCB-II/DLI dated 04.09.1998 registered
by the CBI. PW-55 has further admitted that the appellant-accused was
acquitted in the aforesaid FIR. The said admission is reproduced:-

“It is correct that as per FIR registered the
accused in case FIR 258/1996 PS Krishna Nagar
has been acquitted by the Ld. Trial Court due to
want of evidence.”

38. The alleged subsequent disclosure, i.e. after the incident, alleged to be
made by the appellant-accused gives colour of creation by the prosecution
and the same does not inspire confidence. The appellant-accused too is
acquitted in the aforesaid case i.e. FIR 258/1996 PS Krishna Nagar.

39. The appellant-accused in his statement under Section 313 Cr.P.C has
pleaded innocence and denied his involvement in the commission of
offence.

MEDICAL EVIDENCE

40. Dr.Arinjiya Jain (PW-31) has proved the MLC of deceased Veena and
the post-mortem report of deceased Veena is Ex.PW-29/A which is proved

CRL.A. 268/2015 Page 15 of 19
by Dr.Ashok Jaiswal (PW-29). The external injury on the person of
deceased Veena is reproduced:

i. An oval punctured wound on left upper abdomen just below costal
margin placed 5″ away from midline, 16 cm above umbilicus at 2 O
clock position, 12 ” below junction of middle and lateral third of left
clavicle. Its size was 0.5 cm x 0.8 cm x? with collar of abrasion 1 to 2
millimetre around it, the margins were inverted, no blackening
burning or tattooing seen around it (Entry wound).
ii. There was stitched wound on left temporoparietal region 3 1/2 ”
long almost transversely placed scalp hair found to be completely
shaved. On removing the stitches and irregular lacerated margins
could be seen, the shape of which is drawn in PM report at point A.
There was no blackening or tattooing seen around it.
iii. Extensive irregular defused bruise on left arm and anlateral
aspect on upper middle portion of left arm of size 6″ x 2″ – 2 1/2 inch.
Upper and lower lid showed ecchymosis. No other external injury
seen on body.

41. The deceased Veena died within 9 hours from the time of incident. As
per the post-mortem report Ex.PW-29/A, the cause of death was opined as:

“……..(i) All injuries were antimortem in nature.

(ii) Injury No.1 is caused by fire arm projectile and is the entry point
fired from distant range and direction of fire was from left to right.

(iii) Injury No.2 was surgically intervened wound caused by blunt
object.

(iv) Injuries No. 3 4 were caused by blunt object/force.

CRL.A. 268/2015 Page 16 of 19

(v) Death was due to hemorrhagic shock associated with
craniocerebral injuries……”

42. Hence, as per the post-mortem report Ex.PW-29/A, the cause of death of
Veena is homicidal in nature.

MOTIVE

43. The version put forward by the prosecution is that accused Sanjay
Rathore was having an affair with accused Alka and wanted to eliminate his
wife Veena (deceased) and hence hatched a conspiracy and ultimately
committed the murder of deceased Veena on 27.04.1996. In order to prove
its case, the prosecution has examined 75 witnesses. The prosecution has
also relied upon a letter (Mark J). The letter (Mark J) is stated to be written
by appellant-accused Virender. The letter (Mark J) names involvement of
one Kishan Chand behind the commission of murder. It is pertinent to note
herein that Kishan Chand has neither been cited as an accused nor examined
as a witness by the prosecution. The prosecution is silent about the role of
Kishan Chand. No investigation has been made to find the role of Kishan
Chand.

44. The conduct of accused Sanjay Rathore immediately after the incident is
an important aspect. It must also be noted that accused Sanjay Rathore took
his wife Veena (deceased) to hospital. The accused Sanjay Rathore himself
suffered injuries. Dr.Arinjiya Jain (PW-31) has deposed that she examined
Sanjay Rathore (accused) on 27.04.1996. She has further deposed that the
patient Sanjay Rathore (accused) was brought to the hospital “with alleged

CRL.A. 268/2015 Page 17 of 19
history of having been assaulted by some persons.” Dr.Arinjiya Jain (PW-

31) has proved the MLC as Ex.PW-31/B. A perusal of MLC (Ex.PW-31/B)
reflects that the injuries received by accused Sanjay Rathore were opined as
“dangerous”. Had the motive of accused Sanjay Rathore been to kill Veena,
he would not have taken her to hospital. Therefore it would be unsafe to
reach the conclusion that it was accused Sanjay Rathore who hired the
appellant-accused Virender for committing murder of the deceased.

45. In the facts and circumstances discussed above, nothing incriminating
has been proved by the prosecution qua against the appellant-accused to
bring home his guilt beyond reasonable doubt. Mere suspicion is not enough
to bring home the guilt of the accused. In this context, the following
observation of the Apex Court in
Subhash Chand v. State of Rajasthan;
(2002) 1 SCC 702 is relevant:

“…human nature is too willing when faced
with brutal crimes, to spin stories out of strong
suspicions. Between may be true and must be true
there is a long distance to travel which must be
covered by clear, cogent and unimpeachable
evidence by the prosecution before an accused is
condemned a convict.”

CONCLUSION

46. For all the aforementioned reasons, the appellant-accused is acquitted for
the offence under
Sections 302/316 IPC. The impugned judgment dated 30th
September, 2014, convicting the appellant-accused for the aforesaid
offences, as well as the order on sentence dated 3rdNovember, 2014 are
hereby set aside.

CRL.A. 268/2015 Page 18 of 19

47. The appeal is accordingly allowed but, in the circumstances, with no
orders as to costs. Unless wanted in any other case, the appellant-accused
shall be released forthwith. He will comply with the requirement of
Section
437A Cr.P.C to the satisfaction of the Trial Court.

48. The trial Court record be returned together with a certified copy of this
judgment to the trial Court.

I.S.MEHTA, J.

S.MURALIDHAR, J.

JANUARY 24, 2018

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