SANTOSH @ BHURE versus STATE (G.N.C.T.) OF DELHI on 28 April 2023

[2023] 7 S.C.R. 719

SANTOSH @ BHURE

v.

STATE (G.N.C.T.) OF DELHI

(Criminal Appeal No.575 of 2011)

APRIL 28, 2023

[SANJAY KISHAN KAUL, MANOJ MISRA AND

ARAVIND KUMAR, JJ.]

Penal Code, 1860 – s. 302 r/w. s.34 – Acquittal under –Prosecution case that ‘S’ was tenant of an apartment on the secondfloor of a building owned by PW-3 – On 12.09.2000, at about 10.40a.m., an information was given to the police that a dead body islying in that apartment – As per prosecution, two disclosure/confessional statements were made by each of the two accused (‘S’and ‘N’) during police custody – Trial Court held that the provencircumstances constituted a chain which conclusively indicated thatthe accused ‘S’ in the company of co-accused ‘N’ committed thecrime and to remove the evidence hid the dagger and the blood-stained clothes and further, to hoodwink the police, ‘N’ wrote andplanted a suicide letter in a pocket of the trouser worn by thedeceased – Both the accused were convicted u/ss. 302 r/w. s. 34 –High Court acquitted ‘N’, however, S’s conviction was upheld – Onappeal, held: Mere tenancy of the apartment being with ‘S’ by itselfis not sufficient to hold him guilty as there is no general presumptionagainst the owner/tenant of a property with regard to his/her guiltif a dead body with homicidal injuries is found in his/her property– Prosecution failed to lead any evidence that the two accused, orany one of them, were present there, or in the vicinity – There is nowitness statement identifying the handwriting of accused ‘N’ ordisclosing that accused wrote the suicide letter in his presence –There is also no evidence to explain the relevance of the contents ofthe suicide letter – Suicide letter indicts one person ‘C’– As to whysuch indictment was made; whether it was with reference to someother event contemplated, the prosecution evidence is silent –Barring the expert report, there exists no internal or externalevidence to lend assurance to the prosecution story that the suicideletter was written by accused ‘N’ – As regards recovery of clothes atthe instance of ‘S’, PW4, a witness to that recovery, has been

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Adeclared hostile – There is thus no support to that recovery fromany public witness – The circumstance that the clothes carried bloodof same group as of the deceased is rendered meaningless becausethere is no admissible evidence to connect the clothes with the twoaccused – As regards recovery of knife at the instance of ‘N’, thesame has been denied by ‘N’ and there appears no independentBwitness to support it – Its incriminating value is extremely limitedbecause, firstly, there is no forensic evidence connecting the knifewith the crime; secondly, the knife is a common knife which couldeasily be available; thirdly, the wounds found on the body of thedeceased were of different dimensions giving rise to possibility ofCuse of more weapon than one; and, fourthly, the entire exercise ofrecovery does not inspire confidence, particularly, because the firstattempt to recover had failed – Thus, the prosecution failed to provea chain of incriminating circumstances as to conclusively point outthat in all human probability it was the two accused or any one ofthem, and no one else, who had committed the murder.D

Conclusion

Evidence – Circumstantial Evidence – Conviction on strengthof evidence which are circumstantial in nature – Settled legalposition – The circumstances from which the conclusion of guilt isto be drawn should be fully established – Also, circumstances shouldbe of a definite tendency unerringly pointing towards the guilt ofEthe accused – Further, the circumstances taken cumulatively shouldform a chain so far complete that there is no escape from theconclusion that within all human probability the crime was committedby the accused and the circumstances should be consistent onlywith the hypothesis regarding the guilt of the accused and they mustFexclude every possible hypothesis except the one to be proved –The circumstances from which the conclusion of guilt is to be drawnshould be fully established meaning thereby that they ‘must’ or‘should’ and not ‘may be’ established as the Court must not beoblivious of the most fundamental principle of criminaljurisprudence, which is, that the accused ‘must be’ and not merelyG‘may be’ guilty before the Court proceeds to convict him.

Indian Evidence Act, 1872 – s. 106 – Burden of proof underit upon the accused – Legal position – It is settled that s. 106 of theEvidence Act does not absolve the prosecution of discharging itsprimary burden of proving the prosecution case beyond reasonableH

doubt – It is only when the prosecution has led evidence which, ifbelieved, will sustain a conviction, or which makes out a primafacie case, that the question arises of considering facts of whichthe burden of proof would lie upon the accused.

Code of Criminal Procedure, 1973 – s. 311-A – Law thereinand its prospective application – By Act No.25 of 2005, with effectfrom 23.06.2006, Section 311-A has been inserted in the Codethereby empowering a Magistrate of the First Class to direct anyperson including an accused to give specimen signature orhandwriting for the purposes of investigation but this provisionwould have no bearing on the case instant case as it is of the year2000.

Indian Evidence Act, 1872 – s. 73 – Scope – The provisionsof S. 73 apply when a proceeding such as an inquiry or trial ispending in a Court – In the instant case, since no proceedings werepending before any Court when the specimens in question wereobtained, provisions of s.73 could not have been invoked.

Indian Evidence Act, 1872 – s. 45 – Handwriting Expert –Admissibility – Scope – It is not impermissible to base a finding withregard to authorship of a document solely on the opinion of ahandwriting expert but, as a rule of prudence, because of imperfectnature of the science of identification of handwriting and itsaccepted fallibility, such opinion has to be relied with caution andmay be accepted if, on its own assessment, the Court is satisfiedthat the internal and external evidence relating to the document inquestion supports the opinion of the expert and it is safe to accepthis opinion.

Disposing of the appeals, the Court

HELD: Circumstance – Apartment from where the deadbody was found stood in the tenancy and possession of accused‘’S.

1. Prosecution seeks to bring home the charge levelled onthe accused by relying on certain circumstances. As to when onstrength of evidence circumstantial in nature conviction can belawfully sustained, the law is well settled — the circumstancesfrom which the conclusion of guilt is to be drawn should, in thefirst instance, be fully established; these circumstances should A

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Abe of a definite tendency unerringly pointing towards the guilt ofthe accused; the circumstances taken cumulatively should forma chain so far complete that there is no escape from the conclusionthat within all human probability the crime was committed by theaccused; the circumstances should be consistent only with thehypothesis regarding the guilt of the accused; and they mustBexclude every possible hypothesis except the one to be proved.Further, the circumstances from which the conclusion of guilt isto be drawn should be fully established meaning thereby that they‘must’ or ‘should’ and not ‘may be’ established. While dealingwith a criminal trial, a Court must not be oblivious of the mostCfundamental principle of criminal jurisprudence, which is, thatthe accused ‘must be’ and not merely ‘may be’ guilty before theCourt proceeds to convict him. In Shivaji Sahabrao Bobade &Another v. State of Maharashtra, this Court, elaborating upon theabove principle, observed that the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures fromDsure conclusions. [Paras 23, 24][739-G-H; 740-A-D]

2. In Shivaji Chintappa Patil v. State of Maharashtra, it wasobserved that Section 106 of the IEA, 1872 does not directlyoperate against either a husband or wife staying under the sameroof and being the last person seen with the deceased. It wasEobserved that Section 106 of the Evidence Act does not absolvethe prosecution of discharging its primary burden of proving theprosecution case beyond reasonable doubt. It is only when theprosecution has led evidence which, if believed, will sustain aconviction, or which makes out a prima facie case, that theFquestion arises of considering facts of which the burden of proofwould lie upon the accused. [Para 32][744-C-D]

3. This Court is of the view that though the prosecutionhas succeeded in proving that the apartment where body of thedeceased was found stood in the tenancy of ‘S’ but it failed toGlead any evidence that the two accused, or any one of them, werepresent there, or in the vicinity, either on 11.09.2000 or any timethereafter, till recovery of the dead body. In other words, theprosecution miserably failed to show the presence of the accusedaround the probable time of murder. Further, the prosecution H

led no evidence to establish that the concerned apartment wasunder lock and key or exclusive control of either ‘S’ or ‘N’. Eventhe theory of exclusive possession of ‘S’ over that apartment isdented by the statement of PW4 that till a week before the incidentone ‘HR’ used to live in that apartment with ‘S’. There is also noevidence of the prosecution to show that the concerned apartmenthad a separate stair case accessible to ‘S’ and no one else. For allthe reasons above, though this Court holds that tenancy of theconcerned apartment was proved to be with ‘S’ but neither hisnor N’s presence in that apartment, around the relevant time, isproved by any evidence. It is also not proved that ‘S’ was inexclusive possession or control of that apartment. Rather, fromthe testimony of PW4 it appears that one ‘HR’ was residing therewith ‘S’ though, he had left the place a week before the incident.As to whether the deceased came there after ‘HO’ had left orwas residing there since before, is not clear from the prosecutionevidence. In fact there is no evidence - (a) as to when the deceasedcame into that apartment and (b) in what capacity he was residingthere. In light of the discussion above and in the facts of thecase, in considered view of this Court, the mere presence of thedead body in the apartment let out to ‘S’ is not such a clinchingcircumstance which, on its own, could sustain S’s conviction withthe aid of section 106 of the IEA, 1872 by shifting the onus onhim to explain as to under what circumstances the dead bodywith multiple injuries was found there. [Para 36][746-C-H]

Circumstance — Cause of death and place of murder

4. As regards death of victim being homicidal and aconsequence of multiple injuries caused by a sharp edged weapon,no serious challenge is there to the findings returned by the courtsbelow. There is no challenge to the finding that blood etc. waslifted from the apartment thereby confirming that murder tookplace there. However, in addition to blood or blood-stained cot/linen there were whisky bottle, empty packets/ pouches of saltedsnacks, cigarette butts, etc. lifted from that apartment but thereis no evidence to connect those articles with either of the twoaccused so as to confirm their presence and rule out the presenceof some other person at the relevant time. [Para 37][747-A-C]

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ACircumstance — Recovered Suicide Letter being in thewriting of ‘N’

5. In the instant case, N’s specimens of handwriting andsignature were obtained by the investigating agency duringinvestigation when there existed no specific provision in the CodeBregulating the procedure for obtaining such specimens and thereexisted no provision proscribing the investigating agency fromobtaining specimens of handwriting/signature of an accused or asuspect. As far as the provisions of Section 73 of the IEA, 1872are concerned, they apply when a proceeding such as an inquiryor trial is pending in a Court. Since no proceedings were pendingCbefore any Court when the specimens in question were obtained,provisions of section 73 of the IEA, 1872 could not have beeninvoked. In such a situation, as there existed no legal provisionproscribing an investigating agency from obtaining specimens ofhandwriting/signature of a suspect or an accused, in view of thisDCourt, the investigating agency had the power to collect suchmaterial including specimen handwriting/ signature as to assistthe prosecution to introduce a relevant fact or corroborate anypiece of evidence on a relevant fact/fact in issue. For the reasons,the expert report (i.e. FSL report) obtained during investigationby the investigating agency, predicated on specimens ofEhandwriting/ signature of accused obtained during investigation,could not have been discarded merely because it was obtainedduring investigation and without an order/permission of the Courtas contemplated under section 73 of the IEA, 1872.[Para 51][752-E-G; 753-A-B]F

6. In the instant case, according to the prosecutionevidence, the specimen signatures and handwritings of ‘N’ wereobtained during investigation. Memorandum/documents inconnection therewith including the specimens were produced,proved and marked exhibits thereby proving that they wereGproperly kept and dispatched to FSL along with the disputedsuicide letter for obtaining expert opinion. Genuineness of thosespecimens have not been questioned by ‘N’. The only defencetaken is that the specimens of handwriting and signature wereobtained by compulsion. As this Court has already found that suchobjection was unsustainable therefore, once genuineness of theH

specimens was not disputed, the specimens were available forcomparison and were rightfully used for obtaining expert report.In such a scenario, the net result would be that the FSL report,which was provided by a government scientific expert specifiedin Section 293 of the Code, was admissible regardless of the factthat the expert was not examined as a witness. More so, whenthe defence filed no application to summon the expert for cross-examination. Consequently, the finding of the High Court withregard to the FSL report being inadmissible is erroneous and is,accordingly, set aside. [Para 59][756-C-F]

Whether the FSL Report on its own was sufficient to hold‘’that the suicide letter was written by N.

7. Though it is not impermissible to base a finding withregard to authorship of a document solely on the opinion of ahandwriting expert but, as a rule of prudence, because of imperfectnature of the science of identification of handwriting and itsaccepted fallibility, such opinion has to be relied with caution andmay be accepted if, on its own assessment, the Court is satisfiedthat the internal and external evidence relating to the documentin question supports the opinion of the expert and it is safe toaccept his opinion. In the instant case, with regard to authorshipof the suicide letter, the Trial Court though returned a finding infavour of the prosecution by relying solely on the expert reportbut did not record its satisfaction having regard to its ownobservations with respect to the admitted and disputed writings.It also did not examine whether in the proven facts andcircumstances of the case it would be safe to rely on the expertreport.It be noted that section 73 of the IEA, 1872 enables aCourt to compare the words or figures written by a person presentin Court with any words or figures alleged to have been writtenby such person. The Trial Court therefore could have undertakensuch an exercise. But, in the instant case, there appears no suchexercise undertaken by the Trial Court. What is important is thatin the instant case there is no witness statement identifying thehandwriting of accused ‘N’ or disclosing that accused wrote thesuicide letter in his presence. There is also no evidence to explainthe relevance of the contents of the suicide letter. Interestingly, AB

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Athe suicide letter indicts one person ‘C’. As to why such indictmentwas made; whether it was with reference to some other eventcontemplated, the prosecution evidence is silent. Besides that,there is no evidence to show that the investigating officer queriedperson(s) conversant with the handwriting of the deceased torule out possibility of the suicide letter being in the writing of theBdeceased himself. Such an exercise was necessary to lendassurance to the prosecution story of the suicide letter beingwritten by accused to mask the murder, because, firstly, the deathon its face was not suicidal, and, secondly, it could have ruled outpossibility of it being written in contemplation of some other event.CSeen in that light, barring the expert report, there exists nointernal or external evidence to lend assurance to the prosecutionstory that the suicide letter was written by accused ‘N’. [Paras65, 66][759-G-H; 760-A-G]

8. In addition to the above, it is difficult to accept as to why‘N’ would leave a suicide letter written by him in a pocket of theDtrouser worn by the deceased, particularly, when the injuries evento a layman were homicidal. Notably, there were eight ante-mortem injuries found on the body of the deceased. [Para 67][760-G-H]

9. Taking into account that ‘N’ has denied the incriminatingEcircumstance of writing the suicide letter and no internal orexternal evidence, save the expert report, supports the writingof suicide letter by ‘N’, this Court is of the considered view thatthough the expert evidence was admissible as an opinion on thewriting in the suicide letter but, on overall assessment of theFevidence led by the prosecution, solely on its basis, it would beextremely unsafe to hold that the suicide letter retrieved fromthe trouser of the deceased was written by ‘N’. [Para 69][762-B-C]

Circumstance — The two accused were not traceable from12.09.2000 till 23.09.2000G

7. This Court does not find a good reason to draw anadverse inference against the two accused on account of few daysdelay in their act of surrender. [Para 70][763-E-F]

Circumstances — Disclosure statements, consequentialdiscoveries and their connect with crime.H

8. As regards recovery of clothes at the instance of ‘S’,PW4, a witness to that recovery, has been declared hostile. Thereis thus no support to that recovery from any public witness. Andsince this Court has already doubted the disclosure statementsset up by the police witnesses, it would be unsafe to place relianceon their testimonies in respect of the recoveries pursuant thereto,particularly, when the place from where recovery of clothes isshown is none other than the rooftop of the building from where13 days ago the body of the deceased was found. Because, insuch a scenario, it would be logical to expect that the police wouldhave left no nook and corner of that building unscanned. For allthe reasons above, we doubt the recovery of clothes at the instanceof ‘S’ and thereby discard the circumstance of recovery of clothesat his instance. The circumstance that the clothes carried bloodof same group as of the deceased is rendered meaninglessbecause there is no admissible evidence to connect the clotheswith the two accused. As regards recovery of knife at the instanceof ‘N’, the same has been denied by ‘N’ and there appears noindependent witness to support it, inasmuch as PW-13, touted asa public witness, turned out to be a special police officer.Otherwise also, its incriminating value is extremely limitedbecause, firstly, there is no forensic evidence connecting the knifewith the crime; secondly, the knife is a common knife which couldeasily be available; thirdly, the wounds found on the body of thedeceased were of different dimensions giving rise to possibilityof use of more weapon than one; and, fourthly, the entire exerciseof recovery does not inspire our confidence, particularly, becausethe first attempt to recover had failed. For all the reasons above,we hold that the circumstances with regard to making ofdisclosure statements and consequential discoveries/recoverieswere not proved beyond reasonable doubt. [Paras 75, 76, 81,82][766-B-E; 768-H; 769-A-C]

9. In light of the discussion above, there is no hesitation inholding that the prosecution has failed to prove a chain ofincriminating circumstances as to conclusively point out that inall human probability it was the two accused or any one of them,and no one else, who had committed the murder. [Para 86][771-C-D]

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Sukhvinder Singh & Others v. State of Punjab (1994) 5SCC 152 : [1994] 3 SCR 1061; Devi Lal v. State ofRajasthan (2019) 19 SCC 447; Shambu Nath Mehra v.State of Ajmer AIR 1956 SC 404 : [1956] SCR 199;Nagendra Sah v. State of Bihar (2021) 10 SCC 725;Shivaji Chintappa Patil v. State of Maharashtra (2021)5 SCC 626; State of Bombay v. Kathi Kalu Oghad AIR1961 SC 1808 : [1962] SCR 10; Selvi & Others v. Stateof Karnataka (2010) 7 SCC 263 : [2010] 5 SCR 381;State of Maharashtra v. Sukhdev Singh & Another(1992) 3 SCC 700 : [1992] 3 SCR 480; Ram Narain v.State of U.P. (1973) 2 SCC 86 : [1973] 3 SCR 91;Fakhruddin v. State of Madhya Pradesh AIR 1967 SC1326; Lachhman Singh & Others v. State (1952) 1 SCC362 : 1952 SCC OnLine SC 30 : AIR 1952 SC 167 :[1952] SCR 839; K. Chinnaswamy Reddy v. State ofA.P. & Another AIR 1962 SC 1788 : [1963] SCR 412;Mohd. Inayatullah v. State of Maharashtra (1976) 1SCC 828 : [1976] 1 SCR 715 – relied on.

State of Uttar Pradesh v. Ram Babu Misra (1980) 2SCC 343 : AIR 1980 SC 791 : [1980] 2 SCR 1067;Malti Sahu v. Rahul & Another (2022) 10 SCC 226;Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; Shivaji SahabraoBobade & Another v. State of Maharashtra (1973) 2SCC 793 : [1974] 1 SCR 489; Sukh Ram v. State ofHimachal Pradesh (2016) 14 SCC 183 : [2016] 3 SCR254; Ashish Jain v. Makrand Singh & Others (2019) 3SCC 770 : [2019] 1 SCR 345; Sonvir alias Somvir v.State (NCT of Delhi) (2018) 8 SCC 24 : [2018] 7 SCR830; State of U.P. v. Sunil (2017) 14 SCC 516; RiteshSinha v. State of U.P. & Another (2013) 2 SCC 357 :[2012] 11 SCR 683; State (NCT of Delhi) v. NavjotSandhu (2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79;Matru alias Girish Chandra v. State of U.P. (1971) 2SCC 75 : [1971] 3 SCR 914; Pulukuri Kottaya & Othersv. Emperor AIR 1947 PC 67 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.575 of 2011.

From the Judgment and Order dated 05.03.2009 of the High Courtof Delhi at New Delhi in Criminal Appeal No.682 of 2008.

With

Criminal Appeal No.576 of 2011.

Jayant K Sud, ASG, Ranji Thomas, Sr. Adv., Shreekant NeelappaTerdal, Ms. Nidhi, Sarthak Arora, Mohit Girdhar, Pramod Dayal, NikunjDayal, Rakesh Kumar, Nishesh Sharma, Akshit Pradhan, AnnirudhSharma, Bhuvan Mishra, B. K. Satija, Ms. Kiran Suri, Kartik Jasra, G.S. Makker, Advs. for the appearing parties.

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AThe Judgment of the Court was delivered byMANOJ MISRA, J.

1. These two appeals preferred against the judgment and order ofthe Delhi High Court (for short “the High Court”) dated March 5, 2009in two connected appeals i.e. Criminal Appeal Nos.682 of 2008 and 316Bof 2008 are being decided by a common judgment.

2. Two persons, namely, Santosh @ Bhure (appellant in CriminalAppeal No.575 of 2011) and Neeraj (respondent in Criminal AppealNo.576 of 2011) were tried for offences punishable under Sections 302read with 34 and 120-B of the Indian Penal Code, 1860 (for short “IPC”).CThe Court of Additional Sessions Judge, Rohini Courts, Delhi (for short“the Trial Court”) vide order dated 27.02.2008 found them guilty foroffence punishable under Section 302 read with Section 34 IPC and,vide order dated 29.02.2008, sentenced them to imprisonment for life.They were, however, found not guilty for offence of criminal conspiracy.DAggrieved therewith, two separate appeals, namely, Criminal AppealNos.316 of 2008 and 682 of 2008, were filed before the High Court. TheCriminal Appeal No.316 of 2008 filed by Neeraj was allowed therebyacquitting him of the charge of murder whereas Criminal Appeal No.682of 2008 filed by Santosh @ Bhure was dismissed.

E3. Aggrieved by acquittal of Neeraj, State of Delhi has preferredCriminal Appeal No.576 of 2011 whereas, aggrieved by dismissal of hisappeal, Santosh @ Bhure has filed Criminal Appeal No.575 of 2011.

Introductory Facts

4. (i) The prosecution story in brief is that Santosh @ Bhure wasFtenant of an apartment on the second floor of a buildingowned by Ramesh Chand (PW3). On 12.09.2000, at about10.40 a.m., an information was given to the police that adead body is lying in that apartment. On receiving theinformation police team visited the spot, found a person lyingdead on a folding cot and blood scattered all over the floorGas also the cot/ bed linen. The bed linen, blood, burntcigarette pieces, match box, empty packets of salted snacksmixture, whisky bottle, plate etc. found there were liftedand seized by the police. Besides that a suicide letter wasfound in a pocket of the trouser which the deceased wasHwearing. The same was also seized. The body could not be

identified at the spot. However, later, Bhagwan Dass(PW26) identified it to be of Hari Shankar. On 13.09.2000,Shiv Shankar (PW23), brother of the deceased, Smt.Vandana (PW9), wife of the deceased, and Ajay Kumar(PW18), brother-in-law of the deceased, on information,arrived and confirmed that the body is of Hari Shankar.During investigation Ramesh Chand (PW3), owner of thebuilding, disclosed that Santosh @ Bhure was his tenantand occupant of that apartment and at about 4.00 p.m., on11.09.2000, Santosh was seen leaving the premises with aGathri (a bag made of cloth) in his hand. Raj Kumar (PW4),a tenant of the first floor, during investigation, stated thatSantosh @ Bhure resided in that apartment with one HariOm who had left a week prior to the incident, and on11.09.2000, at about 9.00 p.m., he saw the deceased playingcards and having liquor with Santosh and Neeraj in thatapartment.

(ii) On 20.09.2000 police party visited Etawah, the native placeof Santosh @ Bhure, but could not find him there. However,the accused persons surrendered before the concernedCourt at Tis Hazari on 23.09.2000. On getting informationof their surrender, the police moved an application for theircustody and got three days’ police custody of both theaccused.

(iii) As per prosecution, two disclosure/confessional statementswere made by each of the two accused during policecustody; the first, dated 23.09.2000, resulted in no discovery,whereas the second, dated 25.09.2000, resulted in recoveryof a knife/dagger at the instance of Neeraj and blood-stainedclothes, carrying blood of same group as of the deceased,at the instance of Santosh @ Bhure.

(iv) On basis of the materials so collected, both the accusedwere charge-sheeted. After taking cognizance on the policereport, the matter was committed to the Court of Session.The Court charged them for offences punishable undersections 302/34 and 120-B IPC.

(v) During the course of trial, 29 prosecution witnesses wereexamined and various documents in respect of seizure of ABC

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Aarticles, forensic reports, autopsy report, etc. were producedand exhibited.

(vi) As there existed no eye witness account of the murder, theprosecution sought to rely on circumstances, enumeratedin paragraph 49 of the Trial Court’s judgment, extractedBbelow:

“49. ……

i.tenancy and the residence of accused Santosh @Bhure on the second floor of House No.D-156, JJColony, Khyala; C

ii.Hari Om residing with accused Santosh @ Bhure inthe tenanted premises and leaving the premises aboutone week before the incident;

iii.presence of deceased Hari Shankar at the residenceof accused Santosh @ Bhure; D

iv.recovery of dead body of Hari Shankar from thesecond floor of House No.D-156, JJ Colony, Khyalaand its identification;

v.recovery of the letter, Ex.PW15/G from the pocketof the pant which the deceased was wearing and itsEseizure;

vi.seizure of exhibits from the place of crime;vii.post-mortem on the body of the deceased and thereport;

viii.arrest of accused Santosh @ Bhure and Neeraj; F

ix.disclosure statements of the accused persons andthe recovery of the exhibits at their instance;

x.specimen hand-writing and signature of accusedNeeraj and sending of the letter, Ex.PW15/G andGthe specimen hand-writing and signature of theaccused to the handwriting expert of FSL and itsreport;

xi.opinion of the autopsy surgeon about the use of therecovered knife and causing injuries on the personof deceased; H

xii.deposit of the sealed parcels of the exhibits with theAin-charge malkhana of PS Tilak Nagar and sendingof the parcels to FSL;

xiii.reports of the FSL and their use in establishing thecase.”

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Findings of the Trial Court

5. The Trial Court found—

(i) The testimonies of PW3 Ramesh Chand (owner of thebuilding) and PW4 Raj Kumar (tenant of first floor of thebuilding) proved that Santosh @ Bhure was tenant andresident of the apartment where the dead body of HariShankar, blood, etc. were found.

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(ii) The testimony of PW4 proved that Hari Om, who had beenresiding with accused Santosh @ Bhure in that apartment,had left the premises about a week before the incident.

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(iii) The testimony of PW4 proved that when he visited theapartment of Santosh @ Bhure on 11.09.2000, betweennoon and 1.00 p.m., to pay him money, Hari Shankar (thedeceased) was noticed there alive and in an inebriated state.

(iv) The dead body was duly identified as that of Hari Shankar.

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(v) The autopsy report prepared by Dr. M.M. Narnaware,which was proved by Dr. Lalit Kumar (PW27), establishedthat death was homicidal.

(vi) The testimonies of police witnesses, documents preparedin respect of lifting/ seizure of blood, articles, etc. from thespot and the material exhibits proved that the murder wascommitted in that very apartment.

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(vii) The testimonies of SI Rajesh Kumar (PW15) and InspectorJ.L. Meena (PW28) and the documents exhibited provedthat a suicide letter was found in a pocket of the trouserwhich the deceased was wearing at the time of his death.

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(viii) The testimonies of police witnesses also proved that on20.09.2000 the native place of accused (Santosh) in districtEtawah (State of U.P.) was visited to effect his arrest but H

Ahe could not be found. Thereafter, the two accusedsurrendered in court on 23.09.2000 and were remanded topolice custody.

(ix) The testimonies of police witnesses PW28 and PW15 andthe exhibited documents proved that the two accused hadBmade two confessional disclosures. One, on 23.09.2000,which resulted in no discovery, and other, on 25.09.2000,which, at the pointing out of Santosh, resulted in discoveryof blood-stained clothes and, at the pointing out of Neeraj,a knife/dagger.

C(x)The testimonies of PW15 and PW28 proved that specimenhandwriting and signature of Neeraj was obtained and amemorandum to that effect was prepared and that thesuicide letter, specimen handwriting and signature ofaccused Neeraj were sent to the Forensic ScienceLaboratory (FSL) for comparison/opinion.D

(xi) The Senior Scientific Officer (Documents), FSL-cum-Ex-Officio Chemical Examiner to Government of NCT of Delhi,whose report is admissible under section 293 of the Codeof Criminal Procedure, 1973 (for short “the Code”),confirmed, vide report dated 29.12.2000, that the suicideEletter and specimens were in the handwriting of one andthe same person.

(xii) Ex.PW27/B prepared by autopsy surgeon Dr. M.M.Narnaware, proved by PW27, suggested that the knife/dagger recovered at the instance of Neeraj could haveFcaused such injuries as were found on the body of thedeceased.

(xiii) The testimonies of police witness, etc. proved that the articlessent for forensic examination were duly sealed, properlykept and dispatched.

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(xiv) The serologist report proved that the clothes recovered atthe instance of Santosh @ Bhure carried human blood ofsame group as found on the trouser and vest worn by thedeceased at the time of his death.

6. On strength of the above findings, the Trial Court concludedHthat the proven circumstances constituted a chain which conclusively

indicated that the accused Santosh @ Bhure in the company of co-accused Neeraj committed the crime and to remove the evidence hidthe dagger and the blood-stained clothes and further, to hoodwink thepolice, Neeraj wrote and planted a suicide letter in a pocket of the trouserworn by the deceased. The Trial Court noticed that the accused hadoffered no plausible explanation for the incriminating circumstancesappearing against them hence they were liable to be convicted andsentenced under section 302 read with section 34 IPC. However, inabsence of any evidence with regard to prior meeting of mind, the TrialCourt acquitted them of the charge of criminal conspiracy.

7. Aggrieved with their conviction, Santosh @ Bhure and Neerajfiled separate appeals before the High Court. The High Court allowedthe appeal of Neeraj whereas the appeal of Santosh @ Bhure wasdismissed.

High Court Findings

8. The High Court by placing reliance on two decisions of thisCourt, namely, Sukhvinder Singh & Others v. State of Punjab[1]; andState of Uttar Pradesh v. Ram Babu Misra[2],held that the expert opinionwith regard to the suicide letter being in the handwriting of Neeraj wouldhave to be eschewed, inasmuch as the specimens of handwriting andsignature of Neeraj were obtained with neither his consent nor permission/order of the Court. It held that once that piece of evidence is eschewed,hardly any incriminating circumstance is left to sustain Neeraj’sconviction. Consequently, Neeraj’s appeal was allowed.

9. With regard to co-accused Santosh @ Bhure, the High Courtfound the prosecution successful in proving — (a) that at about 11.00a.m. on 12.09.2000 dead body of the deceased was found in the apartmentunder his tenancy and occupation; (b) that the deceased died a homicidaldeath; (c) that Santosh absconded and could be apprehended only on23.09.2000; (d) that blood-stained clothes were recovered pursuant tohis disclosure statement and at his pointing out; and (e) that those clothescarried blood of human origin and of same group as found on clothesworn by the deceased. The High Court concluded that the abovecircumstances constituted a chain so far complete as to conclusivelyindicate that in all human probability it was Santosh and no one else who 1 (1994) 5 SCC 152

2 (1980) 2 SCC 343 : AIR 1980 SC 791

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Acommitted the crime, therefore, in absence of a proper explanation ofthe incriminating circumstances appearing against him, Santosh’sconviction and sentence was liable to be upheld. Consequently, his appealwas dismissed.

10. We have heard learned counsel for the parties at length.BSubmissions in Criminal Appeal No.575 of 2011

11. In Criminal Appeal No.575 of 2011, on behalf of appellantSantosh @ Bhure, it was argued that, firstly, there is no documentaryevidence that Santosh was tenant of the apartment; secondly, no motivefor murder is proved; thirdly, presence of Santosh in that apartment atCthe relevant time is not proved; and, fourthly, when the police team visitedthe spot, a plate, glass, steel bowl, quarter bottle of whisky, packet ofsalted snacks mixtures were found, yet the FSL Report is silent whetherfingerprints of the appellant was found on those articles, which suggeststhat someone else committed the crime.

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12. In respect of disclosure statement leading to discovery/recoveryof blood-stained clothes, it was argued that, firstly, as alleged by theprosecution, there were two disclosure statements, the first resulted inno discovery, therefore, in absence of evidence as to what transpiredbetween the first and the second disclosure, the creditworthiness of theEsecond disclosure as the basis of discovery of the place of concealmentis seriously dented. More so, when that place is rooftop of the samebuilding where the murder took place 13 days ago. Moreover, from thestatement of police witnesses, it appears that identical disclosurestatements were made by the two accused almost simultaneously,therefore, in absence of clear and satisfactory evidence as to whoseFdisclosure was made first, not much value could be attached to such adisclosure and the consequential recovery.

13. It was next argued that assuming the blood-stained clotheswere recovered on 25.09.2000, there existed no admissible evidence toprove that those clothes were of the accused. The statement of SantoshG@ Bhure, one of the two accused, made to the police in respect thereofis not admissible in evidence.

14. In addition to the above, learned counsel for the appellantSantosh @ Bhure strenuously argued that mere presence of a deadbody in the apartment of an accused, which is accessible to others and isHnot under lock and key or exclusive control of the accused, by itself is not sufficient to infer that the accused has committed the crime,particularly, when there is no proven motive for the crime and there is noevidence of the deceased being last seen alive in the company of theaccused. Moreover, there is no evidence in respect of presence of Santoshin the apartment or in the vicinity around the probable time of occurrence.Rather, PW4 stated that on 11.09.2000 when he visited the apartmentbetween noon and 1 p.m., he saw the deceased there but could notnotice Santosh @ Bhure there, rather, the deceased told him that Santosh@ Bhure was not at home. Further, the presence of whisky bottle, snackspouches, etc. at the spot suggested that the deceased had some personto give him company. However, the prosecution evidence could notdisclose as to whose finger prints were found on those articles. Thus,the prosecution evidence leaves a large gap in the chain of circumstancesthereby failing to rule out third person’s hand in the crime. Hence, thebenefit of doubt must enure to the appellant.

15. Lastly, according to him, the High Court erred in observingthat Santosh by secreting himself since the date of occurrence i.e. 11/12.09.2000 till 23.09.2000 reflected a guilty mind. It was submitted thatthe said observation has no basis, firstly, because the presence of appellantin the apartment or thereabout on 11.09.2000, or any time thereafter, tillrecovery of dead body is not proved and, secondly, there is an explanationof Santosh that when information about the crime was received at hisnative place, his parents requested him to go to Delhi to confirm theinformation. This explanation fits in with the circumstance that hesurrendered in Court on 23.09.2000.

16. Per contra, on behalf of the State, it was argued that it isproved beyond doubt that theapartment where the body was found wasin the tenancy of Santosh; that there was recovery of blood-stainedclothes at the pointing out and on the basis of disclosure made by Santosh;the blood on the said clothes was of same group as on the clothes wornby the deceased at the time of his death; that Santosh, despite beingtenant, gave no information to the police regarding the murder rather,remained absconding till 23.09.2000 even though the police had raidedhis native place on 20.09.2000; and there is no explanation from Santoshas to how dead body of the deceased was present in his apartment.Rather, a false case of denial was set up which is reflective of his guiltymind. Hence, the chain of incriminating circumstances is complete,conclusively pointing towards the guilt of the accused. Therefore, theappeal of Santosh be dismissed.

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ASubmissions in Criminal Appeal No.576 of 2011

17. On behalf of State it was submitted that the High Courtcommitted manifest error in discarding the expert report on the groundthat the specimen handwriting and signature of Neeraj were not admissiblefor comparison because they were forcibly obtained without any orderBof the Court as contemplated under section 73 of the Indian EvidenceAct, 1872 (for short “the IEA, 1872”). It was urged that the view takenby the High Court is in teeth of eleven-judge Constitution Bench decisionof this Court in State of Bombay v. Kathi Kalu Oghad[3]. Otherwisealso, neither Article 20(3) of the Constitution of India nor Section 73 ofthe IEA, 1872 fetters the investigating agency’s powers to obtain specimenCsignature of an accused or a suspect during investigation.

18. In light of the above, on behalf of State, it was contended thatsince Neeraj had not disputed the specimen signature and writing obtainedfrom him and utilised for comparison, the expert report could not havebeen discarded. Thus, as it is proved that the suicide letter was recoveredDfrom a pocket of the trouser which the deceased was wearing at thetime of his death, and there is recovery of knife/dagger at the instanceof Neeraj, which, according to the doctor, could have caused injuries aswere found on the body of the deceased, it stood proved beyondreasonable doubt that Neeraj had actively participated in the crimeErendering himself liable to be convicted and sentenced under section302 IPC with the aid of section 34 IPC. With regard to relevancy of theopinion of the doctor in respect of use of the weapon recovered in causinginjuries found on the body of the deceased, decision of this Court inMalti Sahu v. Rahul& Another[4 ]was cited.

F19. Per contra, the learned counsel representing Neeraj submittedthat the alleged recovery of knife/dagger is false and is liable to bediscarded for the following reasons:- firstly, disclosure statement beingthe basis of recovery is not substantiated as, according to police witnesses,both the accused made identical disclosures and whose disclosure wasmade first, is not clear from the evidence; secondly, first attempt toGrecover failed; thirdly, PritpalSingh (PW13), the alleged public witnessof recovery, turned out to be a Special Police Officer; fourthly, PW13stated that his signature on the memorandum was obtained at the police 3 AIR 1961 SC 18084 (2022) 10 SCC 226H

post; fifthly, the knife carried no blood and, therefore, could not beconnected with the crime; sixthly, the autopsy report disclosed injuriesof different dimensions suggesting use of multiple sharp-edged weapons;and, seventhly, the doctor who opined that recovered knife could havecaused such injuries is not a scientific expert, specified in section 293 ofthe Code, therefore, in absence of production of that doctor as a witness,not much importance is to be attached to that report.

20. With regard to recovery of trousers, it was submitted that thesaid recovery is not at the instance of Neeraj therefore it has no evidentiaryvalue qua him. And the statement of co-accused Santosh @ Bhure thatone of the two trousers was of Neeraj is not admissible in evidence.Other than that, there is no evidence to prove that one of the two trousers,or shirt, was of Neeraj.

21. In respect of authorship of the suicide letter, it was submittedthat, firstly, the FSL report is not admissible in evidence as rightly foundby the High Court; and, secondly, there is no admissible evidence toprove that the writing in the suicide letter was of Neeraj. Besides that, areport of the expert is just an opinion and on its own it cannot form basisof a conclusion, particularly, when there is no internalor external evidenceto support writing of the suicide letter.

22. It was also urged that no evidence was led to establish anyconnection between Neeraj and the deceased or the co-accused Santosh@ Bhure. Otherwise also, there was no evidence on record to establishthat at any point in time, proximate or not to the probable time ofoccurrence, Neeraj was noticed in the vicinity. Thus, in absence of anylink evidence, the chain of circumstances was not complete as to warrantconviction of Neeraj. Hence, the High Court’s order acquitting Neerajdoes not call for interference.

Discussion and Analysis

23. We have considered the rival submissions and perused therecord. Before we proceed further, it would be apposite to remindourselves that this is a case where there is no eyewitness account of themurder. Prosecution seeks to bring home the charge levelled on theaccused by relying on certain circumstances. As to when on strength ofevidence circumstantial in nature conviction can be lawfully sustained,the law is well settled — the circumstances from which the conclusionof guilt is to be drawn should, in the first instance, be fully established;these circumstances should be of a definite tendency unerringly pointing AB

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Atowards the guilt of the accused; the circumstances taken cumulativelyshould form a chain so far complete that there is no escape from theconclusion that within all human probability the crime was committed bythe accused; the circumstances should be consistent only with thehypothesis regarding the guilt of the accused; and they must excludeevery possible hypothesis except the one to be proved. Further, theBcircumstances from which the conclusion of guilt is to be drawn shouldbe fully established meaning thereby that they ‘must’ or ‘should’ and not‘may be’ established (See:Sharad Birdhichand Sarda v.State ofMaharashtra[5]).

24. In addition to the above, while dealing with a criminal trial, aCCourt must not be oblivious of the most fundamental principle of criminaljurisprudence, which is, that the accused ‘must be’ and not merely ‘maybe’ guilty before the Court proceeds to convict him. In Shivaji SahabraoBobade & Another v. State of Maharashtra[6], this Court, elaboratingupon the above principle, observed that the mental distance betweenD‘may be’ and ‘must be’ is long and divides vague conjectures from sureconclusions.

25. Adding on to the aforesaid legal principles, in Devi Lal v.State of Rajasthan[7], a three-judge Bench of this Court held that in acase based on circumstantial evidence where two views are possible,Eone pointing to the guilt and the other to his innocence, the accused isentitled to the benefit of one which is favourable to him. The relevantportion of the judgment is extracted below:- “18. … Though the materials on record hold somesuspicion towards them, but the prosecution has failedto elevate its case from the realm of “may be true” toFthe plane of “must be true” as is indispensably requiredin law for conviction on a criminal charge. It is trite tostate that in a criminal trial, suspicion, howsoever grave,cannot substitute proof.

19. … in the case of circumstantial evidence, two viewsGare possible on the case of record, one pointing to theguilt of the accused and the other his innocence. Theaccused is indeed entitled to have the benefit of onewhich is favourable to him.”

5 (1984) 4 SCC 1166 (1973) 2 SCC 793H7 (2019) 19 SCC 447

26. Bearing in mind the aforesaid legal principles, we would haveto examine — (i) whether the circumstances relied by the prosecutionhave been proved beyond reasonable doubt; (ii) whether thosecircumstances are of a definite tendency unerringly pointing towardsthe guilt of the accused; (iii) whether those circumstances takencumulatively form a chain so far complete that there is no escape fromthe conclusion that within all human probability the crime was committedby the accused; (iv) whether they are consistent only with the hypothesisof the accused being guilty; and (v) whether they exclude every possiblehypothesis except the one to be proved.

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27. In the instant case, the key circumstances on basis whereofthe prosecution seeks to bring home the charge against the two accusedare:

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(a) the apartment from where body of the deceased wasrecovered on 12.09.2000 stood in the tenancy and possessionof Santosh @ Bhure; D

(b) the autopsy report confirmed homicidal death of thedeceased as a result of infliction of multiple wounds from asharp-edged weapon;

(c) the spillage of blood on the floor of the apartment and onthe cot from where the body was lifted confirmed thatmurder took place in that very apartment; E

(d) the suicide letter found in a pocket of the trouser worn bythe deceased at the time of his death was, as per FSL report,in the writing of co-accused Neeraj; F

(e) from 12.09.2000 till 23.09.2000 accused Santosh and Neerajwere not traceable and could be apprehended only on23.09.2000; (f) the two accused, in police custody, on 23.09.2000 and25.09.2000, made confessional disclosures assuringrecovery of (a) the dagger used in the crime, and (b) blood-Gstained clothes worn by the accused on the date of theincident; (g)pursuant to the disclosure made on 25.09.2000, at theinstance of Santosh, blood-stained clothes were recoveredfrom a garbage dump at the rooftop of the same building H

Awhere the body of the deceased was found on 12.09.2000;and, at the instance of Neeraj, a dagger/knife was recoveredfrom the bushes behind a hospital; (h)though, the dagger carried no blood but the doctor opinedthat its use could have caused such injuries as were noticedBon the body of the deceased;

(i) the FSL report confirmed presence of human blood of sameblood group on the recovered clothes as was found on theclothes which the deceased was wearing at the time ofdeath; C

(j) except bald denial, the accused person(s) failed to offer acogent explanation of the incriminating circumstancesappearing against them.

28. Having enumerated the incriminating circumstances relied bythe prosecution, we shall now examine – (a) whether the above-mentionedDcircumstances have been proved beyond reasonable doubt; and (b) ifso, whether they, individually or cumulatively, unerringly point towardsthe guilt of the two accused, or any one of the two accused, and rule outall other hypothesis except the one to be proved.

—Circumstance (a) Re: Apartment from where the deadEbody was foundstood in the tenancy and possession of Santosh.

29. Insofar as tenancy of the apartment being with Santosh isconcerned, the same has been proved by the testimonies of PW3 andPW4. Nothing material could come out from their cross-examination,nor any such suggestion has been given to them, as may cast a doubt onFtheir deposition in respect thereof. No doubt Santosh denied tenancyand claimed that there exists no documentary proof in respect thereofbut as there could be an oral tenancy also, in our view, the finding returnedby the courts below in respect thereof calls for no interference. However,mere tenancy of the apartment being with Santosh by itself is not sufficientto hold him guilty as there is no general presumption against the owner/Gtenant of a property with regard to his/her guilt if a dead body withhomicidal injuries is found in his/her property. No doubt, if the prosecutionsucceeds in proving a chain of circumstances from which a reasonableinference can be drawn regarding one’s guilt then, in absence of properexplanation, the Court can always draw an appropriate conclusion withHrespect to his/her guilt with the aid of section 106 of the IEA, 1872. But, if the chain of circumstances is not established, mere failure of theaccused to offer an explanation is not sufficient to hold him guilty.

30. Expounding the law on the scope and applicability of section106 of the IEA, 1872, in Shambu Nath Mehra v. State of Ajmer[8], thisCourt observed:

“9. This lays down the general rule that in a criminal casethe burden of proof is on the prosecution and Section 106 iscertainly not intended to relieve it of that duty. On the contrary,it is designed to meet certain exceptional cases in which itwould be impossible, or at any rate disproportionately difficult,for the prosecution to establish facts which are “especially”within the knowledge of the accused and which he could provewithout difficulty or inconvenience. The word “especially”stresses that. It means facts that are pre-eminently orexceptionally within his knowledge. If the section were to beinterpreted otherwise, it would lead to the very startlingconclusion that in a murder case the burden lies on the accusedto prove that he did not commit the murder because who couldknow better than he whether he did or did not. It is evidentthat that cannot be the intention and the Privy Council hastwice refused to construe this section, as reproduced in certainother Acts outside India, to mean that the burden lies on anaccused person to show that he did not commit the crime forwhich he is tried.”

31. In Nagendra Sah v. State of Bihar[9], following the decisionin Shambu Nath Mehra’s case (supra), the law with regard toapplicability of Section 106 of the IEA, 1872 was crystallised as under:

“22. Thus, Section 106 of the Evidence Act will apply to thosecases where the prosecution has succeeded in establishingthe facts from which a reasonable inference can be drawnregarding the existence of certain other facts which are withinthe special knowledge of the accused. When the accused failsto offer proper explanation about the existence of said otherfacts, the court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if theaccused fails to offer a reasonable explanation in discharge 8 AIR 1956 SC 404

9 (2021) 10 SCC 725

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Aof burden placed on him by virtue of Section 106 of theEvidence Act, such a failure may provide an additional linkto the chain of circumstances. In a case governed bycircumstantial evidence, if the chain of circumstances whichis required to be established by the prosecution is notestablished, the failure of the accused to discharge the burdenBunder Section 106 of the Evidence Act is not relevant at all.When the chain is not complete, falsity of the defence is noground to convict the accused.”

32. In Shivaji Chintappa Patil v. State of Maharashtra[10], itwas observed that Section 106 of the IEA, 1872 does not directly operateCagainst either a husband or wife staying under the same roof and beingthe last person seen with the deceased. It was observed that Section106 of the Evidence Act does not absolve the prosecution of dischargingits primary burden of proving the prosecution case beyond reasonabledoubt. It is only when the prosecution has led evidence which, if believed,Dwill sustain a conviction, or which makes out a prima facie case, that thequestion arises of considering facts of which the burden of proof wouldlie upon the accused. After expounding the legal principle, while rejectingthe argument that failure of the accused to offer explanation under section313 of the Code would complete the chain, it was observed:

E“25. …By now it is well-settled principle of law, that falseexplanation or non-explanation can only be used as anadditional circumstance, when the prosecution has proved thechain of circumstances leading to no other conclusion thanthe guilt of the accused. However, it cannot be used as a linkto complete the chain.”F

33. In the instant case, according to PW4, the deceased was seenalive in that apartment between noon and 1.00 p.m. on 11.09.2000. Theinformation about presence of dead body in that apartment came atabout 10.40 a.m. on 12.09.2000. Obviously, in absence of an eyewitnessaccount of the murder, the prosecution cannot disclose the exact time ofGthe murder but, from the above sequence of events, as per the prosecutioncase, the murder could have been committed any time between 1.00p.m. of 11.09.2000 and 10.40 a.m. of 12.09.2000. What is interesting isthat during investigation PW3 had disclosed to the police that he noticedSantosh @ Bhure leaving the building with a Gathri (a bag made ofH10 (2021) 5 SCC 626

cloth) at about 4.00 p.m. on 11.09.2000, whereas PW4, duringinvestigation, stated that he saw the deceased playing cards and havingliquor with the two accused at or about 9.00 p.m. on 11.09.2000. However,during their deposition in court neither PW3 nor PW4 disclosed aboutthe presence of Santosh @ Bhure in or around that apartment/buildingat any time on 11.09.2000 or after, till recovery of dead body of thedeceased. Therefore, they were declared hostile. During crossexamination, at the instance of the prosecution, PW3 denied having seenSantosh @ Bhure exiting the building with a Gathri on 11.09.2000. Notonly that, PW3 resiled from his previous statement, made duringinvestigation, that, at or about noon of 11.09.2000, Santosh @ Bhure hadcome to his grocery shop to purchase snacks etc. Thus, from the statementof PW3, it is not at all established that the appellant Santosh @ Bhurewas present in the house on 11.09.2000 or any time thereafter till recoveryof the body of the deceased.

34. Rather, from the deposition of PW3 an important circumstanceemerges, which is, that the apartment from where the body was retrievedon 12.09.2000 was not found locked or shut. PW3’s deposition is that on12.09.2000 while he was at his grocery shop, located on the ground floorof that building, a washer woman informed him that blood was lying onthe second floor of the building. On getting this information, he wentupstairs to notice that a person is lying dead on a folding cot with bloodon the floor. There is no statement of PW3 or of any other witness thatdoor of that apartment was shut or locked and had to be broke open.This assumes importance in the context of PW4’s deposition.

35. PW4 is a tenant of the first floor of that building. As per histestimony, on 11.09.2000, between noon and 1.00 p.m., when he visitedthe apartment of Santosh @ Bhure he found Hari Shankar (the deceased)present there in a drunken condition. PW4 does not state that Santoshwas also present there. Rather, according to PW4, when he enquiredfrom Hari Shankar the whereabouts of Santosh, he was informed thatSantosh is not there. No doubt, PW4 was declared hostile and crossexamined but, during cross examination, he denied making a statementthat in the night of 11.09.2000, at about 9.00 p.m., he had noticed HariShankar playing cards with Neeraj and Santosh in that apartment. Whatemerges from PW4’s testimony is that Hari Shankar was noticed alonein that apartment on 11.09.2000 between noon and 1.00 p.m. In short,the prosecution has failed to demonstrate (a) that the apartment was AB

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Alocked or in exclusive control of Santosh @ Bhure and (b) that thedeceased was in the company of Santosh or Neeraj on 11.09.2000 orany time thereafter, till recovery of the body of the deceased. Theprosecution has also not proved that on 11.09.2000 or any time thereafter,till recovery of the body of the deceased, the two accused were seen inthe vicinity of that apartment or building from where the dead body wasBretrieved on 12.09.2000.

36. In light of the discussion above, we are of the view that thoughthe prosecution has succeeded in proving that the apartment where bodyof the deceased was found stood in the tenancy of Santosh but it failedto lead any evidence that the two accused, or any one of them, wereCpresent there, or in the vicinity, either on 11.09.2000 or any time thereafter,till recovery of the dead body. In other words, the prosecution miserablyfailed to show the presence of the accused around the probable timeofmurder. Further, the prosecution led no evidence to establish that theconcerned apartment was under lock and key or exclusive control ofDeither Santosh or Neeraj. Even the theory of exclusive possession ofSantosh over that apartment is dented by the statement of PW4 that tilla week before the incident one Hari Ram used to live in that apartmentwith Santosh @ Bhure. There is also no evidence of the prosecution toshow that the concerned apartment had a separate stair case accessibleto Santosh and no one else. For all the reasons above, though we holdEthat tenancy of the concerned apartment was proved to be with Santoshbut neither his nor Neeraj’s presence in that apartment, around the relevanttime, is proved by any evidence. It is also not proved that Santosh was inexclusive possession or control of that apartment. Rather, from thetestimony of PW4 it appears that one Hari Ram was residing there with FSantosh though, he had left the place a week before the incident. As towhether the deceased Hari Shankar came there after Hari Om had leftor was residing there since before, is not clear from the prosecutionevidence. In fact there is no evidence - (a) as to when the deceasedcame into that apartment and (b) in what capacity he was residing there.

In light of the discussion above and in the facts of the case, in ourGconsidered view, the mere presence of the dead body in the apartmentlet out to Santosh is not such a clinching circumstance which, on its own,could sustain Santosh’s conviction with the aid of section 106 of theIEA, 1872 by shifting the onus on him to explain as to under whatcircumstances the dead body with multiple injuries was found there.H

—Circumstance (b) and (c) Re: Cause of death and placeof murder

37. As regards death of Hari Shanker being homicidal and aconsequence of multiple injuries caused by a sharp edged weapon, noserious challenge is there to the findings returned by the courts below.Hence, we accept the finding that death was homicidal and a consequenceof injuries caused by use of sharp-edged weapon. Likewise, there is nochallenge to the finding that blood etc. was lifted from the apartmentthereby confirming that murder took place there. However, in additionto blood or blood-stained cot/ linen there were whisky bottle, emptypackets/ pouches of salted snacks, cigarette butts, etc. lifted from thatapartment but there is no evidence to connect those articles with eitherof the two accused so as to confirm their presence and rule out thepresence of some other person at the relevant time.

—Circumstance (d) Re: Recovered Suicide Letter beingin the writing of Neeraj

38. Insofar as recovery of suicide letter from a pocket of thetrouser which the deceased was wearing at the time of his death isconcerned, the same has been proved by the testimonies of InvestigatingOfficer J.L. Meena (PW28) and SI Rajesh (PW15) and in proof thereof,the seizure memorandum and the suicide letter were produced andexhibited. No doubt PW3, a public witness, signatory to the seizurememorandum, has denied seizure in his presence but the two courtsbelow, relying on the testimony of police witnesses, have concurrentlyfound recovery of the suicide letter proved. To us there appears noreason to interfere with the said finding. However, the real issue is whetherit was duly proved that the suicide letter was written by Neeraj. If itwere so, according to the prosecution, it was written to mask a homicidaldeath, which, coupled with recovery of knife/dagger at the instance ofNeeraj, is reflective of his culpability in the crime.

39. Indisputably, except the FSL report there is no admissibleevidence that the suicide letter is in the writing of Neeraj. Evenadmissibility of the FSL Report has been questioned by the defencecontending (a) that it is predicated on specimen signature and handwritingforcibly obtained during investigation, without permission of the Court,therefore, using such specimens would violate the rule against self-incrimination, hence the report is to be treated inadmissible; and (b) that A

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Ain absence of production of the expert as a witness, the report is notproved. The Trial Court did not accept the objections to its admissibilityand, therefore, relied on the expert report to hold that Neeraj was theauthor of the suicide letter. The High Court, however, accepted theobjection to its admissibility and held there is no admissible evidence toprove that the suicide letter was written by Neeraj.B

40. Assailing the finding of the High Court, on behalf of the State,it has been contended that the High Court erred in holding — (a) that thespecimen signature could not be obtained by the investigating agencywithout permission of the Court; and (b) that the FSL report carried noevidentiary value.C

41. Per contra, on behalf of defence, it is contended - (a) thateven if it is assumed that the expert report was admissible, it cannot bethe sole basis to conclude that the suicide letter was written by Santosh,rather, the Court must look at all the evidences to find out whether theproven facts and circumstances support the said issue; and (b) the TrialDCourt ought to have undertaken an exercise to find for itself whether thewriting on the suicide letter matched with that of Neeraj and whetherthe proven facts and circumstances support the proposition that the suicideletter was indeed written by Neeraj and no one else.

42. Before we dwell on the merit of the aforesaid submissions,Ewe may put on record that we were neither shown nor could find anywitness statement identifying the writing of Neeraj on that suicide letteror stating that the suicide letter was written by Neeraj in his or herpresence. The prosecution relied on two pieces of evidence to provethat the suicide letter was written by Neeraj. First is the confessionalFdisclosure of the two accused made before the police with regard toNeeraj writing the letter to hoodwink the police; and second is the FSLreport.

43. As far as admissibility of the confessional statement of thetwo accused in respect of suicide letter being written by Neeraj isGconcerned, the same being made by an accused before the police wouldbe hit not only by Sections 25 and 26 of the IEA, 1872 but also bySection 162 of the Code because only that much of the disclosure/confessional statement is admissible as relates distinctly to the factdiscovered. Since the suicide letter was discovered on 12.09.2000, thatis, much before the disclosures allegedly made on 23.09.2000 andH

25.09.2000, the disclosure qua the suicide letter, in our view, is notadmissible in evidence.

Admissibility of the FSL Report

44. As regards admissibility of the FSL report, the High Courtheld it inadmissible for being based on comparison of specimens forciblyobtained during investigation by the investigating agency. The High Courtwas of the view that usage of such specimens by the investigating agencytoobtain expert report would fall foul of the rule against self-incriminationas well as the provisions of Section 73 of the IEA, 1872. In holding so,the High Court relied on certain observations of this Court in the case ofSukhvinder Singh (supra).

45. In Sukhvinder Singh (supra), the issue that came forconsideration before a two-judge Bench of this Court was whether thehandwriting on the disputed ransom letter was proved to be that of theaccused. In that case, according to the prosecution, the specimen writingof the accused was taken under direction of Tehsildar-ExecutiveMagistrate and based on comparison of that specimen with the disputedransom letter, the expert opined that writing on the ransom letter was ofthe accused. In that context it was held that though Section 73 of theIEA, 1872 does not specifically say so as to who could make such acomparison but reading Section 73 as a whole would make it obviousthat it is the Court which has to form its opinion, either by comparing thedisputed and the admitted writings or by seeking assistance of an expert.As regards the Court which can give a direction to the accused to providespecimens of handwriting and signature and the scope as well as purposeof the second paragraph of section 73 of the IEA, 1872, it was held:

“20. The second paragraph of Section 73 (supra) enablesthe court to direct any person present before it to give hisspecimen writing “for the purpose of enabling the court tocompare” such writings with writings alleged to have beenwritten by such person. The obvious implication of the words“for the purpose of enabling the court to compare” is thatthere is some proceeding pending before the court in whichor as a consequence of which it is necessary for the court tocompare such writings. The direction is therefore required tobe given for the purpose of “enabling the court to compare”and not for the purpose of enabling an investigating or aprosecuting agency to obtain and produce as evidence in the A

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case the specimen writings for their ultimate comparison withthe disputed writings. Where the case is still underinvestigation and no proceedings are pending in any court inwhich it might be necessary to compare the two writings, theperson (accused) cannot be compelled to give his specimenwritings. The language of Section 73 does not permit any courtto give a direction to an accused to give his specimen writingfor comparison in a proceeding which may subsequently beinstituted in some other competent court. Section 73 of theEvidence Act in our opinion cannot be made use of forcollecting specimen writings during the investigation andrecourse to it can be had only when the enquiry or the trialcourt before which proceedings are pending requires thewriting for the purpose of ‘enabling it to compare’ the same.A court holding an enquiry under the Code of CriminalProcedure is indeed entitled under Section 73 of the EvidenceAct to direct an accused person appearing before it to givehis specimen handwriting to enable the court by which hemay be subsequently tried to compare it with the disputedwritings. Therefore, in our opinion the court which can issuea direction to the person to give his specimen writing caneither by the court holding the enquiry under the Code ofCriminal Procedure or the court trying the accused personwith a view to enable it to compare the specimen writingswith the writings alleged to have been written by such a person.A court which is not holding an enquiry under the Code ofCriminal Procedure or conducting the trial is not permitted,on the plain language of Section 73 of the Evidence Act, toissue any direction of the nature contained in the secondparagraph of Section 73 of the Evidence Act. The words “anyperson present in the court” in Section 73 has a referenceonly to such persons who are parties to a cause pending beforethe court and in a given case may even include the witnessesin the said cause but where there is no cause pending beforethe court for its determination, the question of obtaining forthe purposes of comparison of the handwriting of a personmay not arise at all and therefore, the provisions of Section73 of the Evidence Act would have no application.”

Afterdealing with thescopeand object of Section 73 in termsextracted above and upon noticing that there was no inquiry or trialpending before the Court when the specimens were taken while bearingin mind that the prosecution did not disclose as to at what stage ofinvestigation, inquiry or trial the accused was produced before theExecutive Magistrate to take his specimen writings, and as to why thespecimen writings were obtained under direction of the ExecutiveMagistrate and not of the Designated Court, it was held that the mannerin which the specimen writing of the accused was taken was totallyobjectionable and against the provisions of Section 73 of the IEA, 1872.Therefore, the specimen writing was found unacceptable for comparisonand the resultant report was discarded.

46. In our view, Sukhvinder Singh(supra) does not lay down aslaw that during investigation the investigating agency cannot obtainspecimen writing or signature of a suspect or an accused for the purposesof obtaining an expert report in respect of the disputed writing orsignature.Rather, Sukhvinder Singh(supra) is to be understood as adecision dealing with the scope and exercise of power vested in a Courtunder section 73 of the IEA, 1872 while conducting an inquiry or trial.

47. As to what procedure an investigating agency has to followduring investigation for obtaining specimen handwriting or signature ofan accused,there existed no specific provision in the Code, at least noneshown to us, prior to insertion of Section 311-A in the Code by ActNo.25 of 2005 w.e.f. 23.06.2006.

48. In Ram Babu Misra (supra),a decision rendered prior toinsertion of Section 311-A in the Code, it was held that during the courseof investigation a Magistrate is not empowered to direct the accused togive his specimen writing inasmuch as the provisions of the Identificationof Prisoners Act, 1920 (for short “the 1920 Act”) were silent with regardto issuance of directions by the Magistrate for taking specimen writingof prisoners. However, what is important is that the said decision issilent on the issue as to whether the specimen writing and signature ofan accused obtained by the investigating agency during investigationcould be used for obtaining an expert report on the disputed handwritingor signature.

49. No doubt, by Act No.25 of 2005, with effect from 23.06.2006,Section 311-A has been inserted in the Code thereby empowering aMagistrate of the First Class to direct any person including an accused AB

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Ato give specimen signature or handwriting for the purposes of investigationbut this provision would have no bearing on this case as it came intoeffect in the year 2006, whereas the instant case is of the year 2000. InSukh Ram v. State of Himachal Pradesh[11], this Courtheld that theamended provisions of Section 311-A of the Code would applyprospectively. Otherwise also, the purpose of obtaining permission/orderBof the Magistrate is to maintain the sanctity of those specimens so asobviate fabrication. In Ashish Jain v. Makrand Singh &Others[12], itwas held that the object of the provisions of Section 5 of the 1920 Actfor obtaining an order from a Magistrate to take specimens is to eliminatepossibility of fabrication of evidence. There it was also held that thoseCprovisions are directory and not mandatory. Similar view has been takenin Sonviralias Somvir v. State (NCT of Delhi)[13].

50. On scanning the provisions of the Code, prior to insertion ofsection 311-A in the Code, we could find no statutory provision proscribingan investigating agency from collecting specimen signature andDhandwriting of an accused or a suspect for the purposes of obtaining anexpert report. As the provisions of Section 311-A of the Code prescribingthe procedure for obtaining specimen signature/handwriting were insertedin the Code much after completion of investigation in this case, it wouldhave no material bearing on this case.

E51. In the instant case, Neeraj’s specimens of handwriting andsignature were obtained by the investigating agency during investigationwhen there existed no specific provision in the Code regulating theprocedure for obtaining such specimens and there existed no provisionproscribing the investigating agency from obtaining specimens ofhandwriting/signature of an accused or a suspect. As far as the provisionsFof Section 73 of the IEA, 1872 are concerned, they apply when aproceeding such as an inquiry or trial is pending in a Court. Since noproceedings were pending before any Court when the specimens inquestion were obtained, provisions of section 73 of the IEA, 1872 couldnot have been invoked. In such a situation, as there existed no legalGprovision proscribing an investigating agency from obtaining specimensof handwriting/signature of a suspect or an accused, in our view, theinvestigating agency had the power to collect such material includingspecimen handwriting/ signature as toassist the prosecution to introduce 11 (2016) 14 SCC 18312 (2019) 3 SCC 770H13 (2018) 8 SCC 24

a relevant fact or corroborate any piece of evidence on a relevant fact/fact in issue. For the reasons above, in our considered view, the expertreport (i.e. FSL report) obtained during investigation by the investigatingagency, predicated on specimens of handwriting/signature of Neerajobtained during investigation, could not have been discarded merelybecause it was obtained during investigation and without an order/permission of the Court as contemplated under section 73 of the IEA,1872.

52. Now, we shall test another leg of the argument made on behalfof the defence to question the admissibility of the expert report, which is,that the specimen was forcibly obtained, therefore, its usage wouldinfringe the fundamental right against self-incrimination enshrined inArticle 20(3) of the Constitution of India.

53. In Kathi Kalu Oghad (supra), while interpreting the phrase“to be a witness against himself”, as occurs in Article 20(3), aConstitution Bench of this Court, in paragraph 16, per majority viewauthored by B.P. Sinha, C.J., held as follows:

“16. In view of these considerations, we have come to thefollowing conclusions:

(1) An accused person cannot be said to have been compelled tobe a witness against himself simply because he made a statementwhile in police custody, without anything more. In other words,the mere fact of being in police custody at the time when thestatement in question was made would not, by itself, as aproposition of law, lend itself to the inference that the accusedwas compelled to make the statement, though that fact, inconjunction with other circumstances disclosed in evidence in aparticular case, would be a relevant consideration in an enquirywhether or not the accused person had been compelled to makethe impugned statement.

(2) The mere questioning of an accused person by a police officer,resulting in a voluntary statement, which may ultimately turn outto be incriminatory, is not “compulsion”.

(3) “To be a witness” is not equivalent to “furnishingevidence” in its widest significance; that is to say, asincluding not merely making of oral or written statementsbut also production of documents or giving materials which AB

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(4) Giving thumb impressions or impressions of foot or palmor fingers or specimen writings or showing parts of the bodyby way of identification are not included in the expression“to be a witness”.B

(5) “To be a witness” means imparting knowledge in respect ofrelevant facts by an oral statement or a statement in writing, madeor given in court or otherwise.

(6) “To be a witness” in its ordinary grammatical sense meansCgiving oral testimony in court. Case law has gone beyond thisstrict literal interpretation of the expression which may now beara wider meaning, namely, bearing testimony in court or out ofcourt by a person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition ofArticle 20(3), the person accused must have stood in the characterDof an accused person at the time he made the statement. It is notenough that he should become an accused, any time after thestatement has been made.”

54. In his separate opinion K.C. Das Gupta, J., expressing theEminority view, while agreeing with the majority view on certain points,observed:

“33. We agree therefore with the conclusion reached by themajority of the Bench that there is no infringement of Article20(3) of the Constitution by compelling an accused personFto give his specimen handwriting or signature; orimpressions of his fingers, palm or foot to the investigatingofficer or under orders of a court for the purpose ofcomparison under the provisions of Section 73 of the IndianEvidence Act; though we have not been able to agree with theview of our learned Brethren that “to be a witness” in ArticleG20(3) should be equated with the imparting of personal knowledgeor that an accused does not become a witness when he producessome document not in his own handwriting even though it maytend to prove facts in issue or relevant facts against him.”

55. In Selvi & Others v. State of Karnataka[14], following theabove view, it was observed:

“145. … For instance, even though acts such as compulsorilyobtaining specimen signatures and handwriting samples aretestimonial in nature, they are not incriminating bythemselves if they are used for the purpose of identificationor corroboration with facts or materials that theinvestigators are already acquainted with.The relevantconsideration for extending the protection of Article 20(3)is whether the materials are likely to lead to incriminationby themselves or “furnish a link in the chain of evidence”which could lead to the same result. Hence, reliance on thecontents of compelled testimony comes within the prohibition ofArticle 20(3) but its use for the purpose of identification orcorroboration with facts already known to the investigatorsis not barred.”

56. The above view has been consistently followed by this Courtin several decisions i.e.State of U.P. v. Sunil[15]; Ritesh Sinha v. State ofU.P. & Another[16]; and,State (NCT of Delhi)v.Navjot Sandhu[17].”

57. A conspectus of the decisions above would indicate that sincespecimen signatures and handwriting samples are not incriminating bythemselves as they are to be used for the purpose of identification of thehandwriting on a material with which the investigators are alreadyacquainted with, compulsorily obtaining such specimens would not infringethe rule against self-incrimination enshrined in Article 20(3) of theConstitution of India.

58. In the instant case, the suicide letter was already seized bythe investigating agency and therefore obtaining specimen signaturesand handwritings of Neeraj was with a view to enable a comparison forthe purposes of identifying the signature/writing on the suicide letter. Assuch an exercise does not infringe the mandate of Article 20(3) of theConstitution of India, the defence argument that use of specimensignatures of Neeraj,forcibly obtained during investigation, would violate 14 (2010) 7 SCC 26315 (2017) 14 SCC 51616 (2013) 2 SCC 35717 (2005) 11 SCC 600

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Athe rule against self-incrimination is worthy of rejection and is, accordingly,rejected. We therefore hold that the specimen signature/handwriting ofNeeraj obtained by the investigating agency could not have been discardedmerely because of allegations that they were forcibly obtained duringinvestigation without permission of the Magistrate/ Court. The view tothe contrary taken by the High Court is erroneous and is, accordingly,Bset aside.

59. We shall now examine whether the specimens used forcomparison were duly proved to be that of Neeraj. In the instant case,according to the prosecution evidence, the specimen signatures andhandwritings of Neeraj were obtained during investigation.Memorandum/Cdocuments in connection therewith including the specimens wereproduced, proved and marked exhibits thereby proving that they wereproperly kept and dispatched to FSL along with the disputed suicideletter for obtaining expert opinion. Genuineness of those specimens havenot been questioned by Neeraj. The only defence taken is that theDspecimens of handwriting and signature were obtained by compulsion.As we have already found that such objection was unsustainabletherefore, once genuineness of the specimens was not disputed, thespecimens were available for comparison and were rightfully used forobtaining expert report. In such a scenario, the net result would be thatthe FSL report, which was provided by a government scientific expertEspecified in Section 293 of the Code, was admissible regardless of thefact that the expert was not examined as a witness. More so, when thedefence filed no application to summon the expert for cross-examination.Consequently, the finding of the High Court with regard to the FSL reportbeing inadmissible is erroneous and is, accordingly, set aside.FWhether the FSL Report on its own was sufficient to holdthat the suicide letter was written by Neeraj.

60. However, the mere fact that the expert report was admissiblein evidence does not mean that it should on its own form the basis ofconclusion that the suicide letter was written by Neeraj. AdmissibilityGand reliability/credit worthiness of a piece of evidence are entirelydifferent aspects. An inadmissible piece of evidence is to be eschewed.But when a piece of evidence is admissible, as to what weight it wouldcarry for determining a fact in issue would depend on the proven factsand circumstances of the case.

61. In the instant case, the High Court discarded the expert reportas not admissible therefore, it did not undertake an exercise to determinethe fact in issue i.e. whether the suicide letter was written by Neeraj.The Trial Court considered it admissible and based its finding solelythereupon. The relevant observations of the Trial Court, found inparagraph 95 of its judgment, are extracted below:

“95. I have gone through the report of the hand-writing expert,Mark Q1 (Ex.PW15/G) and the specimen hand-writing of accusedNeeraj, S1 to S8 (Ex.PW15/F1 to F8), were examined withscientific instruments such as Stereo Microscope, Video SpectralComparator-IV, Docucenter and Poliview System etc. underdifferent lighting conditions. The expert has given various reasonsin support of the report, that the letter in question and the hand-writing are of the same person. The expert has concluded thatthere is no divergence observed between the questioned andspecimen writings and the aforesaid similarities in the writing habitsare significant and sufficient and cannot be attributed to accidentalcoincidence and when considered collectively, they lead the expertto the opinion that both the writings are in the hand of the sameperson. I find no reason to form a different opinion than that ofthe hand-writing expert. I hold that the prosecution has been ableto establish that the letter, Ex.PW15/G and the specimen hand-writing of accused Neeraj, Ex.PW15/F1 to F8, are in the samehand-writing of a person and he is accused Neeraj.”

62. A bare reading of the above extract from trial court’s judgmentwould indicate that the finding with regard to authorship of the suicideletter is completely based on the expert opinion. No doubt, an expertopinion is relevant under Section 45 of the IEA, 1872 but whether itcould be the sole basis of determination of the fact in issue has been asubject matter of discussion in various judicial pronouncements. In Stateof Maharashtra v. Sukhdev Singh & Another[18], this Court observed:

“29. It is well settled that evidence regarding the identity of theauthor of any document can be tendered (i) by examining theperson who is conversant and familiar with the handwriting ofsuch person or (ii) through the testimony of an expert who isqualified and competent to make a comparison of the disputed A

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Awriting and the admitted writing on a scientific basis and (iii) bythe court comparing the disputed document with the admitted one.… But since the science of identification of handwriting bycomparison is not an infallible one, prudence demands thatbefore acting on such opinion the court should be fullysatisfied about the authorship of the admitted writings whichBis made the sole basis for comparison and the court shouldalso be fully satisfied about the competence and credibilityof the hand writing expert. It is indeed true that by nature andhabit, over a period of time, each individual develops certain traitswhich give a distinct character to his writings making it possibleCto identify the author but it must at the same time be realised thatsince handwriting experts are generally engaged by one of thecontesting parties they, consciously or unconsciously, tend to leanin favour of an opinion which is helpful to the party engaging him.That is why we come across cases of conflicting opinions givenby two handwriting experts engaged by opposite parties. It is,Dtherefore, necessary to exercise extra care and caution inevaluating their opinion before accepting the same. Socourts have as a rule of prudence refused to place implicitfaith on the opinion evidence of a handwriting expert.Normally courts have considered it dangerous to base aEconviction solely on the testimony of a handwriting expertbecause such evidence is not regarded as conclusive. Sincesuch opinion evidence cannot take the place of substantiveevidence, courts have, as a rule of prudence, looked forcorroboration before acting on such evidence. True it is,there is no rule of law that the evidence of a handwritingFexpert cannot be acted upon unless substantiallycorroborated but courts have been slow in placing implicitreliance on such opinion evidence, without more, becauseof the imperfect nature of the science of identification ofhandwriting and its accepted fallibility. …”G

63. In Ram Narain v. State of U.P.[19], this Court observed:

“6. ... Now it is no doubt true that the opinion of a handwritingexpert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidencehas to be received with great caution. But this opinion evidence,which is relevant, may be worthy of acceptance if there isinternal or external evidence relating to the document inquestion supporting the view expressed by the expert. …”

64. In Fakhruddin v. State of Madhya Pradesh[20], this Courtobserved:

“Both under Section 45 and Section 47 the evidence is an opinion,in the former by a scientific comparison and in the latter on thebasis of familiarity resulting from frequent observations andexperience. In either case the Court must satisfy itself bysuch means as are open that the opinion may be acted upon.One such means open to the Court is to apply its ownobservation to the admitted or proved writings and tocompare them with the disputed one, not to become ahandwriting expert but to verify the premises of the expertin the one case and to appraise the value of the opinion inthe other case. This comparison depends on an analysis of thecharacteristics in the admitted or proved writings and in finding ofthe same characteristics in large measure in the disputed writing.In this way the opinion of the deponent whether expert or other issubjected to scrutiny and although relevant to start with becomesprobative. Where an expert’s opinion is given, the court mustsee for itself and with the assistance of the expert come toits own conclusion whether it can safely be held that thetwo writings are by the same person. This is not to say thatthe court must play the role of an expert but to say that thecourt may accept the fact proved only when it has satisfieditself on its own observation that it is safe to accept theopinion whether of the expert or other witness.”

65. The underlying principle deducible from the observationsextracted above is that though it is not impermissible to base a findingwith regard to authorship of a document solely on the opinion of ahandwriting expert but, as a rule of prudence, because of imperfect20 AIR 1967 SC 1326

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Anature of the science of identification of handwriting and its acceptedfallibility, such opinion has to be relied with caution and may be acceptedif, on its own assessment, the Court is satisfied that the internal andexternal evidence relating to the document in question supports the opinionof the expert and it is safe to accept his opinion.

B66. In the instant case, with regard to authorship of the suicideletter, the Trial Court though returned a finding in favour of the prosecutionby relying solely on the expert report but did not record its satisfactionhaving regard to its own observations with respect to the admitted anddisputed writings. It also did not examine whether in the proven factsand circumstances of the case it would be safe to rely on the expertCreport. It be noted that section 73 of the IEA, 1872 enables a Court tocompare the words or figures written by a person present in Court withany words or figures alleged to have been written by such person. TheTrial Court therefore could have undertaken such an exercise. But, inthe instant case, there appears no such exercise undertaken by the TrialDCourt. What is important is that in the instant case there is no witnessstatement identifying the handwriting of Neeraj or disclosing that Neerajwrote the suicide letter in his presence. There is also no evidence toexplain the relevance of the contents of the suicide letter. Interestingly,the suicide letter indicts one Chhote Porwal. As to why such indictmentwas made; whether it was with reference to some other eventEcontemplated, the prosecution evidence is silent. Besides that, there isno evidence to show that the investigating officerqueried person(s)conversant with the handwriting of the deceased to rule out possibility ofthe suicide letter being in the writing of the deceased himself. In ourview, such an exercise was necessary to lend assurance to the prosecutionFstory of the suicide letter being written by Neeraj to mask the murder,because, firstly, the death on its face was not suicidal, and, secondly, itcould have ruled out possibility of it being written in contemplation ofsome other event. Seen in that light, barring the expert report, thereexists no internal or external evidence to lend assurance to the prosecutionstory that the suicide letter was written by Neeraj.G

67. In addition to the above, we find it quite difficult to accept asto why Neeraj would leave a suicide letter written by him in a pocket ofthe trouser worn by the deceased, particularly, when the injuries even toa layman were homicidal. Notably, there were eight ante-mortem injuriesfound on the body of the deceased. In paragraph 72 of Trial Court’sHjudgment the injuries have been extracted. The same is reproduced below:

“External Injuries:

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i)One perforating injury on sternal region vertically placed,located at 10 cms left to right nipple and 9 cms below sternal,size 3 cms x 1.1 cms x cavity deep.

ii)Another penetrating injury on left side of chest, 6 cms leftBto injury No.1, placed vertically, located 1.5 cms above leftnipple and 6.5 cms left to mid-sternal line, size 4 cms x 1.8cms x cavity deep.

iii)Another penetrating injury on left side of abdomenhorizontally placed, located at 14.4 cms below right nipple,4 cms from mid-abdominal line, size 3.8 cms x 1.4 cms xcavity deep.

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iv)Another penetrating injury on right abdomen 5.8 cms belowinjury No.3 horizontally placed, size 4.6 cms x 2.1 cms xcavity deep.

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v)Another penetrating injury on left side of abdomen,horizontally placed, located at 4.5 cms left to umbilicus and21 cms below left nipple, size 9 cms x 3.5 cms x cavitydeep.

vi)One incised wound on sternum, .5 cms right to injury No.1,Esize 0.3 cms x 0.2 cms x skin deep.

vii)Another incised wound on abdomen 10 cms below injuryNo.4, size 1.6 cms x .8 cms x skin deep.

viii)Another incised wound on abdomen 2.4 cms medial to injury0.3, size 0.7 cms x 0.4 cms x skin deep.

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68. A glance at those injuries would reflect that five of them wereperforating or penetrating wounds cavity deep. Out of those, two wereon chest and three on abdomen. Such injuries are clearly homicidaltherefore, masking this homicidal event as a suicide does not appeal tologic. Further, the injuries are not of same dimension. In thesecircumstances, a question would arise as to why would Neeraj who hasno proven connection with the deceased or the co-accused Santosh, orfor that matter the apartment where the dead body was found, make afutile effort to mask the event of murder and thereby leave a trace of hisown culpability. To answer that, the prosecution has led no admissible G

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Aevidence. Thus, even if we assume that a suicide letter was found, atwhat stage it was written — prior to, or post the murder, or in connectionwith some other event which the deceased contemplated — is anybody’sguess.

69. In light of the discussion above, taking into account that NeerajBhas denied the incriminating circumstance of writing the suicide letterand no internal or external evidence, save the expert report, supports thewriting of suicide letter by Neeraj, we are of the considered view thatthough the expert evidence was admissible as an opinion on the writingin the suicide letter but, on overall assessment of the evidence led by theprosecution, solely on its basis, it would be extremely unsafe to hold thatCthe suicide letter retrieved from the trouser of the deceased was writtenby Neeraj.

Circumstance (e) — Re: The two accused were nottraceable from 12.09.2000 till 23.09.2000

D70. The fact that the two accused could be apprehended on23.09.2000 when they had appeared to surrender in connection with thecase is proved by the police witnesses and there is no good reason todoubt their testimony. Moreover, the accused neither led evidence nortendered explanation in respect of any other date or time or place oftheir arrest or surrender. In his statement, under Section 313 of the Code,ESantosh had disclosed that he was informed about some occurrence inDelhi, therefore, to ascertain the same, he came to Delhi. Insofar asNeeraj is concerned, the circumstance that he was arrested on 23.09.2000has not even been put to him while recording his statement under Section313 of the Code. Rather, the arrest of co-accused Santosh from courtFpremises was put to him. However, what is surprising is that whilerecording statement of the two accused under Section 313 of the Code,none of them was confronted with any incriminating circumstancesuggestive of they having secreted themselves to evade arrest. Moreover,the only evidence led by the prosecution in that regard was that an effortwas made to trace them out and in that connection, a visit to their nativeGplace (i.e. at Etawah) was made on 20.09.2000 where they were notfound. But, unfortunately, the statement that the police visited their nativeplace on 20.09.2000 was not even put to any of the two accused whilerecording their statement under Section 313 of the Code. In thesecircumstances, it is difficult for us to hold with a degree of certainty thatHthey were guilty, therefore they secreted themselves. As regards

inference from non-reporting of the crime by Santosh, what goes in hisfavour is that there is no clear evidence to show that he was present inthe apartment at the relevant time. Even if he had been a tenant of thatapartment, he could always be present elsewhere for a few days. Here,it was just a matter of few hours, inasmuch as, murder took place betweenafternoon of 11.09.2000 and morning of 12.09.2000. Body was found atabout 10.40 a.m. on 12.09.2000. Once the body was found and policeentered the scene, after the first information report, even if Santosh hadbeen away and innocent, his instinct of self-preservation would have gotthe better of him to evade arrest till better counsel prevailed upon him tosurrender. Such conduct by itself is not reflective of a guilty mind. InMatrualias Girish Chandra v. State of U.P.[21], this Court observed:

“19. … mere absconding by itself does not necessarily lead to afirm conclusion of guilty mind. Even an innocent man may feelpanicky and try to evade arrest when wrongly suspected of agrave crime such is the instinct of self-preservation. The act ofabsconding is no doubt relevant piece of evidence to be consideredalong with other evidence but its value would always depend onthe circumstances of each case. Normally the courts are disinclinedto attach much importance to the act of absconding, treating it asa very small item in the evidence for sustaining conviction. It canscarcely be held as a determining link in completing the chain ofcircumstantial evidence which must admit of no other reasonablehypothesis than that of the guilt of the accused.”

In these circumstances and for all the reasons above, we do notfind a good reason to draw an adverse inference against the two accusedon account of few days delay in their act of surrender.

Circumstances (f), (g) (h) and (i) — Re: Disclosurestatements, consequential discoveries and their connectwith crime.

71. With regard to the making of disclosure and the consequentialdiscoveries/recoveries, according to the prosecution on 23.09.2000 thetwo accused made disclosures assuring recovery of weapon of assaultand blood-stained clothes worn by them at the time of commission ofmurder. But, admittedly, no discovery could be effected pursuant thereto.Consequently, both the courts below discarded the disclosure statement AB

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Amade on 23.09.2000. However, according to the prosecution, anotherset of disclosure statements were made on 25.09.2000. In pursuancethereof, a knife kept in the bushes behind a hospital was recovered atthe instance of Neeraj and blood-stained clothes, kept at the rooftop ofthe same building, were recovered at the instance of Santosh @ Bhure.Importantly, both the accused have denied such disclosures and recoveryBat their instance. Notably, the disclosure statements of both Santosh @Bhure and Neeraj have been signed by SI Rajesh Kumar (PW15) as awitness. The recovery memorandum in respect of knife/dagger is signedby Pritpal Singh (PW13) and SI Rajesh Kumar (PW15) as witnesses;whereas, recovery memorandum of blood-stained clothes is signed byCRaj Kumar (PW4) and SI Rajesh Kumar (PW15) as witnesses.72. In respect of disclosure made on 25.03.2000, statement ofPW15 SI Rajesh Kumar has been placed on record as Annexure “P-1”in the paper book of Criminal Appeal No.576 of 2011. A perusal of itwould indicate that on 25.09.2000, the two accused, namely, Santosh @

DBhure and Neeraj, were taken out from the lock-up of Police StationTilak Nagar and were interrogated by Inspector J.L. Meena (PW28).At page 53 of the paper book, the statement of PW15 is to the effectthat accused Neeraj had told that the clothes which he was wearing atthe time of incident were kept by him on the roof of the room where the

incident had taken place and he could get the same recovered. He alsoEstated that Neeraj had disclosed that he could get the knife recoveredwith which the murder was committed. PW15 specifically stated thatafter that disclosure, disclosure statement of Santosh @ Bhure wasrecorded who also told the same thing which accused Neeraj had alreadydisclosed in his disclosure statement. At another stage of his deposition[22],FPW15 stated that the disclosure statements of accused persons wererecorded on 25.09.2000 at about 10.30 a.m. Then he stated that thedisclosure statements of both the accused persons were recordedseparately but he does not remember as to whose statement wasrecorded first. At another stage of his deposition[23], PW15 stated that hehad written the disclosure statements on the instructions of InspectorGJ.L. Meena (PW28) but could not explain the reason as to why saiddisclosure statements were not recorded by Inspector J.L. Meena(PW28).

22At page 59 of the paperbook

23At page 60 of the paperbook

73. In somewhat similar situation, in Lachhman Singh & Othersv. State[24], the arguments on behalf of defence were as follows:

“13. The learned counsel for the appellants cited a number ofrulings in which Section 27 has been construed to mean thatit is only the information which is first given that is admissibleand once a fact has been discovered in consequence ofinformation received from a person accused of an offence, itcannot be said to be re-discovered in consequence ofinformation received from another accused person. It wasurged before us that the prosecution was bound to adduceevidence to prove as to which of the three accused gave theinformation first. The Head Constable, who recorded thestatements of the three accused, has not stated which of themgave the information first to him, but Bahadur Singh, one ofthe witnesses who attested the recovery memos, was specificallyasked in cross-examination about it and stated: “I cannot sayfrom whom information was got first”. In the circumstances,it was contended that since it cannot be ascertained which ofthe accused first gave the information, the alleged discoveriescannot be proved against any of the accused persons.”

In the context of the above arguments, this Court expressing anote of caution observed thus:

“14.It seems to us that if the evidence adduced by theprosecution is found to be open to suspicion and it appearsthat the police have deliberately attributed similar confessionalstatements relating to facts discovered to different accusedpersons, in order to create evidence against all of them, thecase undoubtedly demands a most cautious approach. …”

74. Seen in that light, a confusing picture emerges from thestatement of PW15, that is, whether it was Neeraj who first disclosedthe spot from where blood-stained clothes were recovered or it wasSantosh who disclosed it first. What is most damaging to the prosecutionis PW15’s statement that he wrote the disclosure statements oninstructions of Inspector J.L. Meena (PW28) and not on basis of whathe heard the accused state. In our view, this creates a serious possibility 24 (1952) 1 SCC 362 : 1952 SCC OnLine SC 30: AIR 1952 SC 167

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Aof the disclosure evidence being fabricated for using it against both theaccused which seriously dents its credibility thereby rendering it unworthyof acceptance. More so, when the first disclosure resulted in no discovery.

75. Insofar as recovery at the instance of the accused is concerned,both the accused have denied recovery of the concerned articles at theirBinstance. As regards recovery of clothes at the instance of Santosh,PW4, a witness to that recovery, has been declared hostile. There isthus no support to that recovery from any public witness. And since wehave already doubted the disclosure statements set up by the policewitnesses, it would be unsafe to place reliance on their testimonies inrespect of the recoveries pursuant thereto, particularly, when the placeCfrom where recovery of clothes is shown is none other than the rooftopof the building from where 13 days ago the body of the deceased wasfound. Because, in such a scenario, it would be logical to expect that thepolice would have left no nook and corner of that building unscanned.For all the reasons above, we doubt the recovery of clothes at the instance Dof Santosh and thereby discard the circumstance of recovery of clothesat his instance.

76. Having doubted the recovery of clothes at the instance ofSantosh, the circumstance that the clothes carried blood of same groupas of the deceased is rendered meaningless because there is no admissibleevidence to connect the clothes with the two accused. The disclosureEstatement made to the police, even if not discarded, was not admissiblefor proving that the clothes recovered were the one which the accusedwere wearing at the time of murder. The reason being that only so muchof the disclosure would be admissible under Section 27 of the IEA, 1872as distinctly relates to the fact thereby discovered which, in the instantFcase, would be the place where the clothes were concealed.77. In Pulukuri Kottaya & Others v. Emperor[25], the PrivyCouncil, while discussing the extent to which the disclosure informationprovided by the accused to the police is admissible under Section 27 ofthe IEA, 1872, held:G“it is fallacious to treat the ‘fact discovered’ within the sectionas equivalent to the object produced; the fact discoveredembraces the place from which the object is produced andthe knowledge of the accused as to this, and the informationgiven must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not relatedto its discovery in the setting in which it is discovered.Information supplied by a person in custody that ‘ I willproduce a knife concealed in the roof of my house’ does notlead to the discovery of a knife; knives were discovered manyyears ago. It leads to the discovery of the fact that a knife isconcealed in the house of the informant, and if the knife isproved to have been used in the commission of the offence,the fact discovered is very relevant. But if to the statement thewords be added ‘with which I stabbed A’, these words areinadmissible since they do not relate to the discovery of theknife in the house of the informant.”

78. In K. Chinnaswamy Reddy v. State of A.P. & Another[26], athree-judge Bench of this Court, while agreeing with the view expressedby Privy Council in Pulukuri Kottaya (supra), clarified the law infollowing terms:

“10. … It is only that part which distinctly relates to thediscovery which is admissible; but if any part of the statementdistinctly relates to the discovery it will be admissible whollyand the court cannot say that it will excise one part of thestatement because it is of a confessional nature. Section 27makes that part of the statement which is distinctly related tothe discovery admissible as a whole, whether it be in the nature”of confession or not.…

79. In Mohd. Inayatullah v. State of Maharashtra[27], followingthe decision of the Privy Council in Pulukuri Kottaya (supra), this courtelaborately laid down the law with regard to the extent to which adisclosure information provided by the accused to the police is admissibleunder Section 27 of the IEA, 1872. The relevant portion of the judgmentis extracted below:

“12.… only “so much of the information” as relates distinctlyto the fact thereby discovered is admissible. The rest of theinformation has to be excluded. The word “distinctly” means“directly”,“indubitably”, “strictly”, “unmistakably”. The wordhas been advisedly used to limit and define the scope of the 26 AIR 1962 SC 178827 (1976) 1 SCC 828

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SUPREME COURT REPORTS

Aprovable information. The phrase “distinctly relates to the factthereby discovered” is the linchpin of the provision. Thisphrase refers to that part of the information supplied by theaccused which is the direct and immediate cause of thediscovery. The reason behind this partial lifting of the banagainst confessions and statements made to the police, is thatBif a fact is actually discovered in consequence of informationgiven by the accused, it affords some guarantee of truth ofthat part, and that part only, of the information which wasthe clear, immediate and proximate cause of the discovery.No such guarantee or assurance attaches to the rest of theCstatement which may be indirectly or remotely related to thefact discovered.”

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After laying down the extent to which the disclosure statement isadmissible under Section 27, the Court proceeded to test the admissibilityof the following statement:

D“I will tell the place of deposit of the three chemical drumswhich I took out from the Haji Bunder on first August.”The Court held:

“ …only the first part of the statement viz. “I will tell the placeof deposit of the three chemical drums” was the immediateEand direct cause of the fact discovered. Therefore, this portiononly was admissible under Section 27. The rest of the statement,namely, “which I took out from the Haji Bunder on firstAugust”, constituted only the past history of the drums ortheir theft by the accused; it was not the distinct and proximatecause of the discovery and had to be ruled out of evidenceF”altogether.

80. In light of the discussion above, even if the disclosurestatements were accepted, the statement therein that one of the twotrousers was of Santosh and the other was of co-accused Neeraj, whichthey were wearing at the time of the incident, is not one which distinctlyGrelates to the fact discovered, therefore, the same was not admissibleunder Section 27 of the IEA, 1872.

81. As regards recovery of knife at the instance of Neeraj, thesame has been denied by Neeraj and there appears no independent witnessto support it, inasmuch as PW13, touted as a public witness, turned outHto be a special police officer and insofar as the other police witnesses

are concerned, we have already doubted their conduct in setting updisclosure statements. Moreover, the place from where recovery is madeis accessible to all and sundry. Otherwise also, its incriminating value isextremely limited because, firstly, there is no forensic evidence connectingthe knife with the crime; secondly, the knife is a common knife whichcould easily be available; thirdly, the wounds found on the body of thedeceased were of different dimensions giving rise to possibility of use ofmore weapon than one; and, fourthly, the entire exercise of recoverydoes not inspire our confidence, particularly, because the first attempt torecover had failed.

82. For all the reasons above, we hold that the circumstanceswith regard to making of disclosure statements and consequentialdiscoveries/recoveries were not proved beyond reasonable doubt. Inour view, the two courts below have not properly appreciated andscrutinised the evidences, particularly the testimony of PW15, as noticedand analysed above, to test whether the said circumstances were provedbeyond reasonable doubt. Hence, findings to the contrary returned bythe two courts below are set aside. As a resultthereof, the forensic reportwith regard to presence of human blood on the clothes recovered has noincriminating value qua the two accused. Likewise, the opinion that theknife recovered could have caused injuries as were found on the bodyof the deceased carries no incriminating value qua the accused.

—Circumstance (j) Re: failure to render plausibleexplanation

83. In a case based on circumstantial evidence, false explanationor non-explanation can only be used as an additional circumstance whenthe prosecution has proved the chain of circumstances leading to a definiteconclusion with regard to the guilt of the accused. Therefore, beforeaddressing circumstance (j), we would first examine whether theincriminating circumstances that stood proved constitute a chain so farcomplete as to infer that in all human probability it were the accusedwho had committed the crime.

84. As discussed above, the incriminating circumstance that stoodproved beyond reasonable doubt as against Santosh was that the deceasedhad died a homicidal death in the flat/apartment which stood in his tenancy.Insofar as Neeraj is concerned there is no admissible evidence connectinghim with either Santosh or the deceased. There is also no admissibleevidence to show that Neeraj resided in that apartment either as a co-tenant or sub-tenant thereof. The allegation that the suicide letter was AB

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Awritten by Neeraj has already been held not proved beyond reasonabledoubt, therefore, in our view, there is no worthwhile evidence againstNeeraj. Hence, his acquittal by the High Court calls for no interference.

85. Insofar as Santosh is concerned barring the tenancy of thatapartment being with him, rest of the circumstances relied by theBprosecution have not been found proved beyond reasonable doubt. Inour view, mere tenancy of that apartment being with Santosh, byitself,would not constitute a chain so far complete as to logically inferthat in all human probability the deceased was killed by Santosh and noone else, because—

a)The accommodation from where body was recovered wasCfound open. There is no evidence that it was under lockand key of Santosh or that its access was controlled and noone other than Santosh could have had access to theapartment. Thus, possibility of some third person enteringthe apartment and committing murder is not ruled out.

Db)Mere presence of a dead body in an apartment is not enoughto convict a tenant or owner of that apartment for murder,particularly when there is no admissible evidence to provethat around the plausible time of murder the accused waspresent there, or was last seen with the deceased, and hadmotive to finish off the deceased;E

c)From the testimony of PW4 it is proved that the deceasedwas alone in that apartment between noon and 1.00 p.m.on 11.09.2000 and, at that time, Santosh was not presentthere.The body of the deceased was found in the morningof 12.09.2000.There is no evidence that in between noonFof 11.09.2000 and discovery of the dead body next daymorning, the appellant Santosh or co-accused Neerajentered that apartment or were seen in the vicinity; d)The prosecution led no evidence to prove any motive forthe crime which, in a case based on circumstantial evidence,Gprovides an important link to the chain of circumstances; e)At the time of lifting the dead body from that apartment,number of articles present there including whisky bottle andplates etc. were lifted. Many of those articles could havecarried fingerprints. Yet no evidence was brought on recordHto rule out presence of any other person than the accused or to confirm the presence of fingerprints of any of the twoaccused on those articles; f)The circumstance that the accused remained at large till23.09.2000 by itself is not a conduct reflective of a guiltymind, particularly, when there existed no evidence to showphysical presence of the appellant Santosh in that apartment,or in the vicinity, on 11.09.2000 or any time thereafter, tillrecovery of the dead body on 12.09.2000. Otherwise also,the incriminating circumstance in respect of abscondence,if any, has not been put to any of the two accused whilerecording their statement under Section 313 of the Code.

Conclusion:

86. In light of the discussion above, we have no hesitation in holdingthat the prosecution has failed to prove a chain of incriminatingcircumstances as to conclusively point out that in all human probability itwas the two accused or any one of them, and no one else, who hadcommitted the murder. In such circumstances, even if Santosh failed toexplain as to how the dead body of the deceased was found in hisapartment, an inference of his guilt cannot be drawn. In a nutshell, it is acase where the prosecution failed to elevate its case from the realm of“may be true” to the plane of “must be true” as is indispensably requiredfor conviction on a criminal charge.

87. Consequently, Criminal Appeal No.575 of 2011 filed by theaccused Santosh @ Bhure is allowed. The judgment and order of theTrial Court convicting and sentencing him and the judgment and order ofthe High Court upholding his conviction are set-aside. The appellantSantosh @ Bhure is acquitted of all the charges for which he has beentried and convicted. If he is in custody, he shall be released forthwith,unlesshis custody is required in connection with any other case. If he isalready on bail, he need not surrender and his bail-bonds shall standdischarged.

Insofar as Criminal Appeal No.576 of 2011 filed by the Statechallenging acquittal of the accused Neeraj is concerned, the same hasno merit and is, accordingly, dismissed.

88. Both the appeals stand disposed of in aforesaid terms.

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