* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 14.01.2011
PRONOUNCED ON: 28.04.2011
+ CRL.A. 786/2001
SAVITA alias BABBAL ..... Appellant
Through : Ms. Rebecca. M. John, Advocate along with
appellant in person.
versus
STATE OF DELHI ..... Respondent
Through : Sh. Lovkesh Sawhney, APP.
CRL.A. 795/2001
ASHUTOSH BANEERJEE alias PAPPU ..... Appellant
Through : Appellant in person.
versus
STATE ..... Respondent
Through : Sh. Lovkesh Sawhney, APP.
CRL.A. 919/2001
RAVI CHOUHAN ..... Appellant
Through : Ms. Charu Verma, Advocate along with appellant in person..
versus
STATE ..... Respondent
Through : Sh. Lovkesh Sawhney, APP.
CRL.A. 926/2001
SWAMI RAMESHWARANAND GIRI alias VI ..... Appellant
Through : Sh. Mukesh Kalia, Advocate along with appellant in person.
versus
Crl.A.Nos. 786, 795, 919, 926/2001 Page 1
STATE GOVT. OF NCT OF DELHI ..... Respondent
Through : Sh. Lovkesh Sawhney, APP.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE G.P. MITTAL
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
%
1. The present common judgment will dispose of the above four connected appeals. All
the accused/Appellants were convicted by the trial court under Sections 302 read with
Section 34, IPC; the Appellant Savita, in addition, was convicted under Section 203 IPC.
2. The case of the prosecution in brief is that on receipt of DD No. 38A at about 2:24
AM on the night intervening of 02-03.12.1994, SI Sardar Singh reached at H. No.29/156,
West Patel Nagar and found Manoj Girotra (the deceased) son of Jagdish Rai lying on the
floor in a pool of blood in the first floor drawing room; blood was scattered on the floor, on
the pillow and bed sheet. There were number of knife blows on the deceased’s body. The
bedroom almirahs were open, empty jewellery boxes were also lying on the ground. SI Sardar
Singh recorded the statement of the wife of deceased Manoj (hereafter “Savita”) who was
present at the spot. She disclosed that she along with her husband was watching the film
“Burning Train” on TV and at about 1:30 AM, after the film got over they were conversing
in their room on the first floor. Someone knocked the door; Manoj opened the door and three
persons armed with knives entered the premises. One of them held a knife at the deceased’s
neck and took him to the drawing room. Another person held the knife at her neck and
demanded the almirah keys; the third man took out gold ornaments from the almirah. All of
them were to leave, but the man holding the knife to her, tried to tease her; he tore her
clothes. When her husband Manoj protested, he was given knife blows at many places on his
Crl.A.Nos. 786, 795, 919, 926/2001 Page 2
body by the intruders. As a result, Manoj fell down and all the three intruders fled from the
spot. She raised alarm and her father-in-law’s cousin Mahender Lal and others from the
locality went upstairs.
3. It was alleged that after initial investigation, SI Sardar Singh found no clue in the
case. He handed over investigation to Inspector Rajbir Singh, of Special Investigation Branch
who found suspicious activities on the part of Savita and her family guru Swami
Rameshwaranand Giri (hereafter “the swami”). On 13.09.1995 the swami was arrested and
one letter written by him to Savita was seized from him, addressed to her as his lover and
wife. After finding clues against Savita, she was arrested and on 13.09.1995. Accused Raj
Kumar and Jagdish Lal were also arrested and on 17.09.1995 accused Ravi Chauhan and
Ashutosh Banerjee were arrested. Accused Om Prakash @ Omi could not be arrested by the
police and was declared as proclaimed offender.
4. It was alleged that the swami was interrogated; he disclosed being very close to the
family of Saudagarmal Sethi, Savita’s father and in the year 1994 when he was ill, he
remained in their house and had a physical relationship with Savita. Savita’s marriage was
solemnized on 10.10.1994 with Manoj and the swami blessed the couple. After the marriage,
according to the prosecution, the swami and Savita kept on meeting each other, and in one
such meeting, they conspired to kill Manoj and asked for assistance from one devotee
accused Raj Kumar. He arranged for the killers; the swami paid `40,000/- to the killers. On
15.11.1994 accused Raj Kumar took his co-accused Ravi Chauhan on his motor cycle
No.DIW 1149 to Patel Nagar and according to the plan, Savita along with her husband Manoj
went to Hanuman Mandir on their scooter. Accused Raj Kumar and Ravi Chauhan started
chasing them. On reaching Shankar Road, near the petrol pump, Savita dropped her slipper
intentionally, ensuring that the scooter stopped and alighted from it to retrieve the slipper. Raj
Kumar stopped his motorcycle at some distance; accused Ravi Chauhan fired at Manoj with a
country made pistol. Manoj was injured on the back of the shoulder. Accused Ravi Chauhan
hid himself in the bushes and accused Raj Kumar fled on his motorcycle. The swami was in
his car bearing No. DL 4C A7094 and he took Ravi Chauhan in his car.
5. It was further alleged that on 30.11.1994 the swami came to Delhi from Rishikesh in
his car, which was driven by Makhan Lal, and at about 12/12:30 PM reached Patel Nagar.
Leaving Makhan Lal in the car at some distance, he visited Savita’s house and remained there
till 2:30/3:00 AM, and they hatched another plan to kill Manoj, according to which, on the
night of 02.12.1994 the swami, in his car (driven by accused Raj Kumar) reached his (Raj
Crl.A.Nos. 786, 795, 919, 926/2001 Page 3
Kumar’s) factory at Nariana and took accused Om Prakash @ Omi and Ashutosh Banerjee @
Pappu who were armed with knives. All of them went to the Savita’s house, at West Patel
Nagar. Leaving Raj Kumar in the car, the swami, Omi and Pappu went to the first floor of
Savita’s house, the door of which had, as per previous plan, been left open, (since Savita was
waiting for the other accused). Upon their reaching the premises, she switched off the
bedroom light and took the co-accused to the drawing room where the deceased was sleeping
on the diwan. All the three accused showered knife blows on the body of Manoj, and when he
tried to protest. The swami caught Manoj’s foot with his hands, and on receiving knife blows,
he fell down from the bed and died. The swami sent accused Omi and Pappu downstairs and
when he saw that Manoj was not dead, he gave another knife blow to him; after satisfying
himself that Manoj had died, and in order to give the incident the shape of dacoity, he took
Savita’s ornaments from the almirah and scattered the empty boxes on the bed and also tore
Savita’s nighty. He gave some ornaments to accused Omi and Pappu and left them at
Nariana.
6. The prosecution also alleged that after committing the murder, the swami, with his
driver Makhan Lal left for Rishikesh. On reaching, the swami threw the knife in the bushes
behind his Ashram. He kept the ornaments in his almirah and after washing the clothes
which, he was wearing at the time of incident, hid them. He attended Manoj’s cremation
ceremony and lived for some days in the Ashram of his Gurubhai Devendranand Giri at
Bahadurgah, Makhan Lal got introduced the swami, to the accused Jagdish Lal Sharma who
introduced himself as Inspector from the CBI and he with the help of Makhan Lal started
extorting the swami. After recording the telephonic conversation in audio cassettes between
Makhan lal and Jagdish Lal Sharma, they both were arrested. The swami is alleged to have
led to recovery of the knife used in the incident and the jewellery taken away from Savita’s
house. The prosecution filed charges in the Court. Subsequently, accused Om Prakash @
Omi was also arrested and the challan was filed in the Court and the case was committed to
the Court of Sessions. Makhan Lal and Jagdish Lal Sharma were remanded for their trial to
the Court of concerned Metropolitan Magistrate by order dated 22.12.1998, Additional
Sessions Judge, Delhi as the offences alleged against them were only under section
176/202/384/419, IPC which were exclusively triable by the Metropolitan Magistrate.
Charges under Section 302/120B IPC were framed against all the accused persons on
04.05.1999, to which they all pleaded not guilty and claimed a trial. Hence the trial
commenced against them. The swami, and Ashutosh Banerjee were separately charged for
Crl.A.Nos. 786, 795, 919, 926/2001 Page 4
offence under section 404 IPC and 27/54/59 of Arms Act. Accused Ravi Chauhan was also
separately charged for offence under Section 307 and 404 IPC. Similarly accused Om
Prakash was also separately charged for offence under Section 404 IPC. Accused Savita was
separately charged for offence under section 203 IPC. All accused entered the plea of not
guilty to their separate charges and claimed a trial.
7. The prosecution relied on the evidence of 48 witnesses to establish the charges framed
against the accused. Since its case was based entirely on circumstantial evidence, it was
sought to be proved by evidence in that regard. Broadly, the following circumstances were
sought to be made out through prosecution evidence:
(1) Proximity between Savita and the swami, for a long time, before the former’s
marriage to the deceased, during which they developed intimacy;
(2) Conspiracy hatched by the swami and Savita, to have Manoj murdered. The first step
towards this, was the incident of 15.11.1994, when the deceased was shot at while driving a
scooter, and injured at the back. The attempt was on his life, but was unsuccessful. The
prosecution alleged that Savita prevailed on other family members to refrain from reporting
the incident to the police.
(3) Planning, by the swami and Savita, prior to the incident, whereby the former visited
the latter, on late 30th November, 1994, and hatched a conspiracy. He stayed with her till the
early hours of the next morning.
(4) Involvement of other co-accused, and the swami, in the murderous attack which took
place on the night of 02-03.12.1994, on Manoj, which resulted in his death, and the later
cover-up by them, to give the impression of a robbery and looting of jewellery. Savita aided
the co-accused, by ensuring that the first floor door was left unlocked, to facilitate the crime.
(5) Attempt by Savita to hide the previous incident, of 15.11.1994, when reporting the
matter to the police. The police did not have any concrete clue, and the investigating officer
changed.
(6) Interception of telephonic conversation between the swami and Jagdish, and other
conversation, leading to recovery of letter from Rama Bajaj, the arrest of swami, his
disclosure statement, leading to recovery of the murder weapon, and jewellery looted from
the premises, on the date of incident, and the subsequent arrest of other co-accused, including
Savita.
8. The trial court convicted the four appellants, holding that the prosecution was able to
prove all the circumstances, which pointed to their guilt and involvement in the murder of the
Crl.A.Nos. 786, 795, 919, 926/2001 Page 5
deceased. It was held that Savita’s conduct and role in successfully ensuring that the previous
attempt at the life of the deceased, which occurred on 15.11.1994, stood established. It also
found that the version given by Savita about the manner in which the incident took place,
when allegedly the assailants entered the first floor, of the premises, started to rob jewellery,
and upon being challenged by Manoj, when one of them sought to molest her, by raining
knife blows on him, was falsified by the circumstantial evidence. In this regard, the trial court
took into consideration the evidence such as to say that the couple had a strained marital
relationship, the nature of injuries which led to the death of Manoj, the fact that there was no
forcible entry into the house at 1:30 AM, in the morning, the statements of PW-15 about how
the outside door was unlocked, the telephonic conversations which the swami had, leading to
recovery of a letter, PW-37/R, the interrogation and detention of swami, the disclosure
statement made by him, leading to recovery of jewellery articles, their identification by PW-3
(Manoj’s father), the arrest and disclosure statements of Ravi Chauhan and Ashutosh, all
proved the circumstances conclusively and unerringly to the guilt of the four appellants. The
trial court accordingly recorded their conviction under Section 302 read with Section 34, and
also recorded the acquittal of Ravi Chauhan, in respect of the charge under Section 307 IPC.
It convicted Savita under Section 203 IPC, and acquitted the accused charged for the offence
under Section 404, IPC.
Appellants’ arguments
9. All the appellants argue that the first circumstance put forward in the case is the
linking of the 15.11.1994 incident with Manoj’s murder, and their alleged complicity in that
incident. It is pointed out firstly that the accused charged with the said attempt was Ravi
Chauhan; the Court recorded his acquittal. In the circumstances, the charge of conspiracy had
to be established with strong and cogent evidence.
10. It is submitted, primarily by Savita’s counsel, in this regard that the evidence put
forward against her was her alleged reluctance in reporting the matter to the police, and
convincing the other family members against such reporting. It was urged, here, that PW-1,
the deceased’s mother had deposed on this aspect, and her testimony was unreliable, since
she contradicted herself on this issue. On the one hand, in her examination-in-chief, she
clearly stated that Savita did not want the incident reported, since the couple was newly
married; yet, at a later point in time, in her deposition, she clearly stated that the decision not
to report the attempt was collectively taken by the family. It was submitted that the
Crl.A.Nos. 786, 795, 919, 926/2001 Page 6
prosecution had tried to say that Savita did not report the failed attempt, even when the
murderous incident of 02.12.1994 was intimated to the police, and that this was reported by
PW-15. Arguing that this was not established, it was submitted that the depositions of
witnesses showed that Savita, in fact, handed over the windcheater and other articles of
clothing, of the deceased Manoj, in respect of the previous attempt of 15.11.1994, when
asked to do so. It is also urged that the later version on this, viz. that the entire family
collectively decided not to report the incident, is plausible, since PW-15 and PW-16 have not
supported PW-1’s version on this aspect, and further that PW-3, the deceased’s father, who
was staying away from the family, at Agra, was not even aware of the whole incident of the
failed attempt on the accused’s life, on 15.11.1994. Counsel further argued that the trial court
completely misdirected itself, in selectively appreciating the evidence of the prosecution
witnesses, and applying itself to the examination-in-chief, completely ignoring the entire
depositions, which included the cross-examination conducted on behalf of the
accused/appellants. Learned counsel also argued that the evidence of PW-1 cannot be relied
on, because her statement was recorded on three different dates, namely 11.02.1995, in
August, and later, in December, 1995. Not only did she materially contradict herself in these
three statements, in the form of omissions, and improvements, but later contradicted herself,
as well as other witnesses during the trial. It is argued that indeed, if this witness and the
other relatives of the deceased had suspected Savita and the swami, there was no reason, why
this should not have been voiced by them when the police recorded the statements, on these
separate dates. Furthermore, the voluntary manner in which Savita gave the deceased’s
articles of clothing, to facilitate investigation into the previous incident, falsified the
prosecution argument that she suppressed the previous incident deliberately.
11. On this aspect, it was contended that a statement, or omission of an accused, (on any
aspect relating to an offence), who was the informant reporting the crime, and recorded as
part of the FIR, is inadmissible, as against the said accused, as hit by Section 162 of the
Criminal Procedure Code. Here, reliance was placed on the judgment of the Supreme Court
reported as Nissar Ali v. The State of Uttar Pradesh, AIR 1957 SC 366 to say that a First
Information Report is not a substantive piece of evidence and can only be used to corroborate
the statement of the maker under S. 157 of the Evidence Act or to contradict it. Reliance is
also placed upon the ruling in K.A. Vish v. State of Maharastra, AIR 1971 SC 2256, where
the Supreme Court held that an accused’s previous statement can be used for contradicting
him, but even that part of evidence cannot be used against him, as substantive evidence. For
Crl.A.Nos. 786, 795, 919, 926/2001 Page 7
the same proposition, reliance was placed on Agnoo Nagesia v. State of Bihar, AIR 1966 SC
119; and Bandlamuddi Atchuta Ramaiah v. State of A.P., 1997 SCC (Cri) 128.
12. Savita’s counsel next argued that the trial court’s conclusions about the false reporting
of the manner in which the attack took place, based on the theory of conspiracy, is also
erroneous. It was submitted that according to PW-15, accused Savita opened the door from
the inside. The prosecution version that she had kept the outer door unlocked, and the gate to
the first floor, based on the sketch placed on the record, could not be believed. It was
submitted in this regard that the trial court disbelieved the immediate statement or version of
Savita, and drew its conclusions based on shaky facts, which were not proved. Counsel
submitted that PW-15’s evidence pointed to the street door being open, at the time of the
incident and that the premises had a second floor tenant, who was not examined. It was also
argued that the prosecution did not have any cogent evidence, or even theory to back its story
about Savita having kept the first floor door open, to facilitate the intruders’ entry into the
premises. In this regard, it was submitted that the evidence of PW-15 also showed that the
wall adjoining the gate of the first floor was only 3 feet high. It was also submitted that the
reconstruction of the crime, sought to be established by Ex. 32/A sketch, could not have been
relied on by the trial court, since the witnesses who prepared the document, could not have
pin-pointed the exact spots where the incident occurred at different stages, since he prepared
it on much later, on 05.01.1995, and as the notes on the exhibit reveal, at the instance of the
accused Savita. It was submitted that to the extent a map, or sketch reflect the location of
articles of furniture and other objects, and are recorded or drawn immediately after the
incident, or contemporaneously, they might be admissible. However, where the map or sketch
seek to recreate the scene of occurrence, and is drawn on the basis of statements of any
person or witness, who narrates it, the same cannot be considered by the Court, unless such
person or witness also corroborates it. Learned counsel relied on the judgments reported as
Tori Singh v. State of U.P., AIR 1962 SC 399, where it was held that the marking of a spot on
the sketch-map, about the event or incident in question, amounts to conclusion of the
draftsman on the basis of the statements made by the witnesses to him, which would be
inadmissible in view of Section 162 of the Code of Criminal Procedure. Counsel also relied
on Jagdish Narain v. State of U.P., 1996 (8) SCC 199, for the same purpose. It was further
submitted that the sketch and the narrative of PW-15, who was uncertain about whether the
door was latched or not, and lack of exact description of the entire house, the various entries
to it, and the various doors on the first floor, as well as the police’s omission to investigate
whether someone could have entered from the adjoining wall, by jumping, or whether indeed
Crl.A.Nos. 786, 795, 919, 926/2001 Page 8
any of the entrances leading to the first floor were open or accessible, renders the theory
about Savita having conspired to keep open the entrance, or door, suspect, and the trial court
ought not to have accepted the prosecution version about this.
13. It was argued that the alleged recovery of jewellery and their identification leading to
the prosecution theory, readily accepted by the trial court, is untenable, and the findings on
this are erroneous. Arguing that the identity of the jewellery was not established, Savita’s
counsel emphasized that PW-1, the deceased’s mother was unaware about her jewellery. She
did not reside in Delhi, and used to live with her husband in Agra. It was submitted that when
she was asked to describe her jewellery, and that of Savita, the witness had no convincing
answer. It was urged that even PW-3, her husband, was in fact unaware of the details of the
jewellery, and relied on Savita herself – a fact admitted to by him in the cross-examination.
Learned counsel submitted that the details of jewellery never saw the light of the day in the
statements made by PW-3 on two dates after the incident, i.e. 25.12.1995 and 11.02.1995. It
was only on 04.04.1995, after the investigating officer had changed and Inspector Rajbir
(PW-45) assumed charge that the witness mentioned generally about the nature of jewellery
looted. It was urged that if indeed the details were unknown, and he obtained the particulars
from Savita, there was a material contradiction in the prosecution story, because Savita went
away to her parents’ place about a month after the incident, as per the version of PW-1.
Furthermore, the prosecution witnesses, particularly PW-1 and PW-15 had stated that they
suspected Savita. In these circumstances, the question of obtaining any details of the
jewellery lost or stolen, from her could not have arisen. It was also argued that PW-3 had
stated that he purchased jewellery from R.R. Jewellers, and was familiar with it. If indeed this
were true, there was no question why he should not have been able to furnish these
particulars to the prosecution in the first two statements recorded in the case; nor did anything
prevent the prosecution from examining R.R. Jewllers, to prove the identity of the ornaments.
It was further argued that the prosecution did not attempt to show the video-tape of the
marriage ceremonies, between Savita and the deceased, which could have facilitated
identification of the jewellery articles. Learned counsel stated that Savita had volunteered
during the trial to wear the articles, particularly bangle or karha, which was not permitted. It
was also argued that having regard to the normal course of conduct, and the deposition of
PW-1, it was improbable that PW-3 could have identified any jewellery, and that being the
father-in-law, it was natural for him not to be aware of the details of jewellery. In normal
households, such details would be known by the female members; in the present case, PW-1
Crl.A.Nos. 786, 795, 919, 926/2001 Page 9
would have most likely been aware of these items. Her complete ignorance about the
allegedly recovered jewellery, as indeed her own jewellery gave a lie to the prosecution story
about recovery of jewellery. It was also argued that the prosecution was unable to establish
convincingly that the jewellery articles Ex. P-1 to Ex. P-29 had been judiciously mixed with
other ornaments, procured from an independent source. Counsel also argued that the TIP
conducted by the prosecution, in this regard, on 15.11.1995, was clearly delayed, and
furthermore that PW-3 was present without notice for this exercise. All these cast grave
doubts about the prosecution version that the jewellery produced in the Court were in fact
recovered at the instance of one or the other accused, and that the accused Savita owned any
of them. The appellants further submitted that neither the wedding album, nor the videos of
the wedding function were produced or exhibited, as surely they would have shed light on the
kind of jewellery that Savita was wearing during the marriage. It was emphasized by counsel
for appellants in this regard that the trial court has acquitted all the Appellants/accused of the
charge framed under Section 404, IPC.
14. Learned counsel submitted next that the prosecution version of a conspiracy between
the co-accused at various stages, is flawed and not established. The appellants complained, in
this regard that the trial court erred in not seeing that there was no concrete allegation as to
when the alleged conspiracy commenced, and that the prosecution relied on post event
developments and facts, such as alleged tape recorded conversation between the swami and
others. It was argued that the evidence, such as transcripts of post incident conversations,
letters said to have been recovered from Savita, and one Ms. Rama Bajaj, PW-21, written by
the swami, are concededly after the incident, and cannot be used as material to establish
conspiracy, in view of Section 10 of the Evidence Act, and the rulings of the Supreme Court
in Sardul Singh Caveeshar v. State of Bombay, AIR 1957 SC 747 where it was held:
“The limits of the admissibility of evidence in conspiracy case under S. 10 of the
Evidence Act have been authoritatively laid down by the Privy Council in Mirza King
v. King Emperor (supra). In that case their Lordships of the Privy Council held that
Sec. 10 of the Evidence Act must be construed in accordance with the principle that
the thing done, written or spoken was something done in carrying out the conspiracy
and was receivable as a step in the proof of the conspiracy. They notice that evidence
receivable under S. 10 of the Evidence Act of “anything said, done or written, by any
one of such persons” (i.e. conspirators) must be “in reference to their common
intention”. But their Lordships held that in the context (notwithstanding the amplitude
of the above phrase) the words therein are not capable of being widely construed
having regard to the well known principle above enunciated.”
Crl.A.Nos. 786, 795, 919, 926/2001 Page 10
The above ruling, submitted the appellants, was followed in other cases, State of Gujarat v.
Mohammed Atik, AIR 1998 SC 1686 and Saju v. State of Kerala, 2001 (1) SCC 378. It was
also urged that the theory of conspiracy, the attempt of the prosecution to prove a clandestine
meeting or tryst between Savita and Swami, sought to be established through the evidence of
PW-13 and PW-31 could not stand judicial scrutiny. It was submitted, in this regard, that the
star witness to prove the meeting prior to the incident, on 30th November, 1994, was Krishna
Budhiraja, PW-34, who did not support the prosecution version, and was declared hostile. No
admission was elicited by the prosecution from her, though it sought, and was granted leave
to cross-examine her.
15. It was submitted next, that the prosecution failed to prove the tape recordings, which
led to the alleged seizures, and that such recordings were indeed that of the accused. It was
submitted, in this context, that no authorization of the competent authority or court was
obtained; the transcript sought to be produced and relied upon did not show that it was
recorded in a manner, which could eliminate any doubt about tampering. It was urged that the
transcript made available to the Court, and on record the judicial file, does not indicate or
demarcate the conversations of various individuals. Learned counsel also urged that the
prosecution attempt to prove that the Appellant Savita had spoken to the swami, did not
establish such allegation, because Ms. Porus, PW-44 could not identify the lady who
allegedly made the phone calls from her centre; no telephone numbers linking the Appellant
Savita with any calls was shown. The documents relied, if at all could at best show that two
calls were booked to some number in Rishikesh. Such evidence was tenuous to establish any
connection between the Appellant Savita and the Swami.
16. Learned counsel argued that the trial court committed a serious error in not seeing that
the recovery memo PW-21/A was spoken to by PW-21 Rama Bajaj; it related only to an
envelope allegedly recovered from her (the witnesses’) premises, addressed to Savita. The
letter was allegedly written by the swami. Yet, neither the receiver (PW-21, who according to
the prosecution had to deliver it to Savita) nor the courier, i.e. a disciple of the swami, spoke
about it. It is alleged that the witness to the alleged recovery only spoke about the seizure of
an envelope; she did not depose anything regarding a letter found in that envelope, which was
sought to be proved as Ex. PW-37/R. The only person who could have spoken about it, was
PW-21; she did not depose about it; the prosecution did not cross-examine her on this, if it
felt that her deposition differed with its version. PW-45 deposed that the letter was recovered
from the premises of PW-21; however, this version differed from what was said by the
Crl.A.Nos. 786, 795, 919, 926/2001 Page 11
witness herself. More importantly, submitted learned counsel, the trial court did not put the
letter to the Appellant Savita, in Section 313 of the Code of Criminal Procedure. It was
pointed out that the trial court queried the recovery of PW-37/R, as if it had been recovered
from her (the Appellant Savita’s) possession, which was fatal to the whole theory of
conspiracy. It was argued that not asking Savita about the recovery of PW-37/R from her, in
the statement under Section 313 was fatal to the prosecution story. In this regard, the counsel
relied on the decision reported as Sharad Birdichand Sarda v. State of Maharastra, 1984 (4)
SCC 116. Counsel submitted that in these circumstances, it would be hazardous for the court
to rely on the testimony of PW-45, Rajbir, who was known as the “encounter specialist”
notorious for foisting false evidence, and creating “encounter” situations to kill suspected
criminals. It was argued (in reply to the prosecution rebuttal of the argument regarding
Section 313, Cr. PC) that even if the court were to for a moment go by the prosecution
suggestion, and question the Appellant, PW-45 cannot be cross examined, or confronted with
any other evidence, since he has died during the pendency of these appeals.
17. It was argued that the conspiracy and premeditation angle was ruled out in this case,
because Savita had always co-operated with the police, and given statements. The
prosecution’s attempt to implicate her in the previous attack, it was urged, was untenable,
because she handed over Manoj’s clothes, voluntarily. She did not deny the previous
15.11.1994 incident involving an attempt on Manoj’s life. Furthermore, submitted learned
counsel, the recovery and identification of jewellery was shrouded with too many question
marks. It was emphasized that the attempt to have the jewellery articles identified would have
been authentic, if the police had seized the marriage video tapes, which were admittedly
available. A visual comparison of the jewellery in the video with what was allegedly
recovered would have confirmed if indeed, they were looted from the deceased’s premises.
Further, submitted counsel for the appellant, it was improbable that the jewellery could be
recovered from the swami’s ashram, in Haridwar, after nearly 10 months of the date of
incident. It was also submitted that the other incriminating evidence, in the form of two
letters, Ex. PW-37/E1 to E-28, as well as Ex. PW-37/F1 to F3, in fact contained nothing
inculpatory, which could have led the trial court to conclude the guilt of the accused.
18. It was submitted that the main prosecution witnesses’ depositions could not have been
taken into consideration. Both of them, i.e. the parents of the deceased, did not state the
complete facts, and kept improving various versions in statements recorded under Section
161 Cr PC. At different points in time statements were made, which were inconsistent and at
Crl.A.Nos. 786, 795, 919, 926/2001 Page 12
variance with each other. Particularly, submitted counsel, PW-1’s evidence and further that of
PW-3, are unreliable, and could not have been the basis for convicting the accused.
19. Counsel submitted that the Trial court’s approach in not considering the evidence of
prosecution witnesses who were declared as hostile, is contrary to law, and that the court
should take that into consideration the deposition if the witness is otherwise credible. For this
purpose, reliance was placed on the decision reported as Sat Paul v. Delhi Administration,
AIR 1976 SC 294. Counsel next submitted that selective appreciation of depositions of
witnesses, by considering only their examination-in-chief, and not taking into account the
cross-examination, is legally indefensible. It was argued that the procedure, as laid down
under the Evidence Act, is clear and unambiguous. Under the Evidence Act, evidence means
the examination-in-chief and cross-examination and that such statement alone will form
evidence. In this regard, the judgment reported as Ripen Kumar v. Department of Customs,
2001 (107) Cr. LJ 1288 has been relied on.
20. It was urged that in cases involving circumstantial evidence, it is imperative for the
prosecution to prove motive, as an important link or element, which led to the crime. In this
case, urged the counsel, apart from urging the existence of an illicit relationship between the
Swami and Savita, there was no shred of legally permissible evidence, which could remotely
prove that allegation, let alone permit the Court to harbor a reasonable suspicion. In this
context, Ms. John argued that the deposition of PW-1 showed that in her statement recorded
at the earliest point in time, i.e. 11.02.1995, no suspicion about the alleged estrangement of
the couple (i.e. Savita and Manoj); their returning from the honeymoon early, their allegedly
sleeping separately, frequent telephone calls by the swami, were deposed. These elements
were deliberately introduced as afterthoughts, much later, after due reflection. The witnesses
who could have deposed, did not say anything in regard to the meetings between the two
accused, i.e. Savita and the swami. The letter most strongly relied on by the prosecution was
doubly inadmissible, by reason of its not having been put to the concerned accused; moreover
it was admittedly a post conspiracy event, or material, which could not have permitted
speculation of conspiracy at a prior point in time.
21. Mr. Mukesh Kalia, learned counsel for the swami, in addition to adopting the
arguments of Ms. Rebecca John, also urged that the three circumstances, which were sought
to be put forward as incriminating him (the swami) were not proved at all. It was submitted
that there was a long delay in recording the testimony of PW-1; her first Section 161
statement did not implicate the swami, nor did it attribute any role or voice any suspicion.
The second statement was recorded almost 9 months after the incident, and for the first time,
Crl.A.Nos. 786, 795, 919, 926/2001 Page 13
she claimed that the swami had been suspected by members of the family all along. It was
submitted that the alleged conversations, said to have taken place between the two, i.e. Savita
and the swami, were not proved; similarly the letters written by the swami, Ex. PW-37/E1 to
E-28 contained no inculpatory matter or hint of conspiracy or objectionable relationship. It
was submitted that in fact Ex. PW-37/R was not even put to the swami, in questioning, under
Section 313, Cr. PC.
22. Learned counsel argued that the so called telephonic conversations, the transcripts of
which were relied on by the prosecution, are inadmissible. In this respect, it was submitted
that there was no proof, or connecting material to establish that Telephone Number 31925
was installed at the Ashram of the swami. The transcripts nowhere reveal any role of the
swami or Savita, in the crime. Importantly , submitted the counsel, no one from the telephone
exchange, at Rishikesh was examined, in the trial to prove that the recording in fact took
place, as alleged in this case. Lastly, submitted the counsel, the transcripts cannot be co-
related with the voice of any one accused. Arguing about admissibility of such telephone
recordings, their cassettes, or transcripts, the appellants’ counsel submitted that the decision
in Mahavir Prasad Verma v. Surinder Kaur, AIR 1982 SC 1043 and of a Division Bench of
this Court, in State v. Ravi, 2000 (1) AD (Del) 222 have ruled that tape recorded
conversations can be relied upon as corroborative evidence of conversation deposed to by
parties to the conversation and in the absence of evidence (of such conversation) the tape
recording is not proper evidence, and cannot be relied on. Similarly, the judgments reported
as R.M. Malkani v. State of Maharastra, AIR 1973 SC 417; Ziyauddin Burhanuddin Bukhari
v. Brijmohan Ramdass Mehra, AIR 1975 SC 1788 and Ram Singh v. Col. Ram Singh, AIR
1986 SC 3 have been relied on to show what are the material tests for a tape recording to be
admissible, as evidence. The Court had indicated that the fulfillment of the following
preconditions was essential for a tape recording to be admissible in a trial:
a) the voice of the speaker must be duly identified by the maker of the record or by
others who recognize his voice. Where the maker has denied the voice it will require
very strict proof to determine whether or not it was really the voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of the
record by satisfactory evidence direct or circumstantial.
c) Every possibility of tempering with or erasure of a part of a tape recorded statement
must be ruled out otherwise it may render the said statement out of context and,
therefore, inadmissible.
Crl.A.Nos. 786, 795, 919, 926/2001 Page 14
d) The statement must be relevant according to the rules of Evidence Act.
e) The recorded cassette must be carefully sealed and kept in safe or official custody.
f) The voice of the speaker should be clearly audible and not lost or distorted by other
sounds or disturbance.
23. Dealing next with the alleged recovery of ornaments, learned counsel reiterated the
submissions made by Savita’s counsel, and also argued that Manoj’s mother could not prove
the ornaments, including her own ornaments. Furthermore, submitted the counsel the alleged
recovery of eight gold bangles, 2 gold karas, one gold necklace, one gold mangal sutra and
one gold chain, were utterly improbable, since no one involved in a crime, as the present one,
would continue to keep such allegedly stolen property for such a long time, and would
dispose it of at the earliest available opportunity. It was also submitted that there were no
members of the public involved as a witness for the recoveries; all the recoveries were
allegedly witnessed by PW-39, PW-37, and PW-45, who were policemen. It was further
submitted that the depositions of these witnesses were supposed to have recorded that the
swami led them to the place where the articles were hidden. In this context, argued Mr. Kalia,
the so called disciple who had the key to the place where the articles were kept, was not
produced, even though the prosecution alleged that they had to wait for the room in the
ashram to be opened. It was emphasized that the exoneration and acquittal recorded under
Section 404, IPC falsified the entire story about the accused Swami having been a witness to
the crime, and also a co-conspirator, who is supposed to have kept jewellery articles found at
the scene of crime. It was argued here that once the trial court recorded acquittal under
Section 404, IPC, there was no question of holding that the swami was involved in a
conspiracy, to murder, on the same facts.
24. Mr. Kalia also argued that the prosecution could not establish that the swami had any
prior meeting with Savita, as to lead the Court to consider the possibility of a conspiracy. In
this regard, he argued that the so called tryst alleged by the prosecution, which is supposed to
have been held on 30.11.1994, was not proved. Similarly, the swami’s role, either as a
participant, or in the background as a conspirator to murder had not been established.
Similarly, submitted the counsel, the recovery of a dagger, alleged against the swami, was
unbelievable, because no one committing a murder in his senses, would hide the weapon of
offence near his place (as in the present case the weapon allegedly thrown by the swami in
the bushes behind his ashram), when the opportunity of conveniently disposing it off, i.e.
throwing it in the river, is available to him. Further, it was submitted that the prosecution case
Crl.A.Nos. 786, 795, 919, 926/2001 Page 15
about use of a dagger, for killing Manoj, is falsified by the FSL report, which revealed that
the blood stain on the dagger did not show any reaction, on its testing.
25. Learned counsel for the Appellant Asutosh argued that the prosecution has not been
able to prove any role played by him. It is submitted that the said Appellant was supposedly
arrested due to the statement recorded by the swami; however, no public witness was
associated with his arrest. Counsel argued that similarly, PW-4 had not stated in his statement
recorded under Section 161, Cr. P.C. about depositing the jewellery items. Learned counsel
also pointed out that the evidence on record showed that the IO and the police party, which is
alleged to have gone to Haridwar for investigation, did not use any official police vehicle; no
authorization too was proved to have been given by any superior officer, for the said
investigation. It is submitted that in fact no record or document, stating that they requested
permission, or intimated about the visit to Hardwar is on record; this is significant, because
the investigating team was not in hot chase, as the crime had occurred over 10 months prior
to the visit. Counsel submitted that the entries in the malkhana register too were
manipulated.
26. Arguing that the entire story about Asutosh’s arrest and so called confessional
statements were concocted, learned counsel submitted that the deposition of PW-29 showed
that the said appellant was allegedly arrested pursuant to Ravi Chauhan’s statement.
However, submitted learned counsel, none of its witnesses were able to give any details of
particulars about the factory such as its name proprietor and so on. In these circumstances the
vague allegation of the witnesses that the arrest was made at a particular address in a gatta
(cardboard) factory could not be believed. He further stated that the alleged recovery of
jewellery from the place of arrest is falsified by PW-29 admitting that his previous statement
nowhere reflected that such articles were sealed – a fact which he sought to improve upon,
and introduce for the first time in the prosecution testimony. Similarly, submitted the counsel,
the description of articles – particularly the alleged weight of jewellery recovered from
Ashutosh’s premises were not even mentioned in the recovery memo, (PW-26/E) even
though PW-26 specifically stated it to be 46 grams.
27. It was submitted that the entire conviction of Ashutosh rested on the recoveries
allegedly made by the prosecution pursuant to his disclosure statement, and the identification
of jewellery. The dagger allegedly seized from him could not be linked with the offence,
according to the serological report. In the circumstances, there was nothing to link him with
any alleged conspiracy, the origin of which was not proved. To cap it all, the use by the Trial
Court, of the statement of co-accused, which was inadmissible, for implicating him, resulted
Crl.A.Nos. 786, 795, 919, 926/2001 Page 16
in serious error. It was also argued that the impugned judgment itself acquitted Ashutosh of
the offence under Section 404, IPC. In the circumstances, the recovery of articles, and their
linkage with the crime had not been proved. Therefore, the prosecution, without filing an
appeal, could not rely on the said alleged circumstances relating to the discovery of jewellery
articles that were allegedly looted. The counsel submitted that significantly, no one claimed
the articles – not even the prosecution witnesses such as PW-1 or PW-3. This meant that the
jewellery was unconnected with the crime; the trial court directed its confiscation to the state.
28. Ms. Charu Verma, learned counsel for the appellant Ravi Chauhan, argued that the
prosecution version about the arrest of the accused/appellant is not credible. PW-29 also
deposed that the building from where the arrest was made, consisted of several tenements,
where families resided. Despite availability of members of the public, the police did not
involve anyone other than official witnesses to the arrest and subsequent alleged recoveries. It
is further argued that the plan pertaining to the crime scene in the incident had not been
proved contrary to the findings of the trial court. In this regard, learned counsel reiterated the
submissions made by the appellant swami’s counsel. Speaking about this aspect, it was urged
that the mere “pointing out” of the alleged crime scene, or place of occurrence was an
impermissible evidence, which could not be used to convict an accused.
29. Ravi Chauhan’s counsel next argued that the confessional statement of the swami
could not have been used as a valid piece of evidence against him to prove anything, or even
a conspiracy. It was pointed out also, that Ex. PW-26/C which describes the recoveries made
at the behest of Ravi Chauhan states that they comprised of six ladies’, and two gents rings;
however, PW-1 did not mention about the loss of any ring.
30. Relying on the decision reported as Sanwat Khan v. State of Rajasthan, AIR 1956 SC
54, it was argued that any conviction based on recoveries alone should not be rendered,
unless corroborated by other reliable evidence. Citing S. Arul Raja v. State of Tamil Nadu,
2010 (7) SCALE 10, it was submitted that to punish one for the actions of another, on the
ground that he was a conspirator, there should be acceptable and credible evidence of such
agreement, before the Court. It was argued that in this case, there is no evidence linking the
swami with Ravi Chauhan, save and except the former’s statement, which is inadmissible.
Prosecution arguments
31. Mr. Lovkesh Sawhney, the learned APP, submitted that though the prosecution case
was based on circumstantial evidence, all the circumstances here were proved – as well as the
link between each of them – beyond reasonable doubt. It was submitted that Savita and the
Crl.A.Nos. 786, 795, 919, 926/2001 Page 17
swami knew each other before the former’s marriage, and were on intimate terms, the
relationship being more than a guru and his disciple. The evidence on record, particularly of
the deceased’s family members, showed that this association continued even after marriage,
as Savita used to hold long telephonic conversations with the swami. The evidence, of PW-1
also established that the newly-wed couple returned earlier than scheduled from the
honeymoon; they were also not having a conjugal relationship and Manoj used to sleep on the
diwan and not with Savita. It was argued that the swami, Savita, and other conspirators
hatched a plan to murder Manoj. The first attempt was abortive, since the plan misfired, and
Manoj was injured, though not fatally, due to the gun shot fired at him on 15.11.1994, when
on motorcycle (from which Savita got down, on the pretext of retrieving her chappal,
affording the attacker to shoot him). Savita was instrumental in seeing that the matter was not
reported to the police, as was testified by other members of Manoj’s family. Thereafter,
Savita and the swami met clandestinely, on 30th November, 1994, in Patel Nagar, at night,
when the plan that ultimately led to the attack took place. In the intervening night of 2/3rd
December, 1994, according to plan, Savita had kept the outer entry door of the first floor
open, to facilitate easy access to the assailants, who were let in by her. The evidence pointed
to there being no forcible entry; the assailants, including the swami, walked to where Manoj
was sleeping, and mercilessly stabbed him, at various places, mostly in the neck, resulting in
fatal injuries. To cover up, a false bogey of attempt to molest Savita was raised and also the
case of alleged looting, made out. Savita tried to suppress the previous attempted murder, by
not mentioning the incident of 15.11.1994. During the investigation, the police recorded the
statements of the parents of Manoj, i.e. PW-1 and PW-3, as well as his uncle and aunt, i.e.
PW-15 and PW-16. The statement of his cousin, PW-18, too was recorded. For quite
sometime, no headway could be made in the investigation. In the meanwhile, the IO in-
charge of the case, changed; PW-45 took over. The police received a tip off about attempted
extortion of the swami, due to his involvement in the crime, and acting upon it, started to tap
his telephonic conversations. Three telephonic conversations, of early September, 1995, led
to needle of suspicion being pointed at him. The police, therefore, visited him at Rishikesh;
after his interrogation, statements were recorded. This led to recoveries, as well as the search
and seizure of letters, etc. from the house of PW-21 and the appellant Savita; she too was
arrested. The other conspirators were arrested later, and recoveries were effected pursuant to
their statements.
32. It was submitted that the entire circumstances surrounding the attack and the
subsequent events, which emerged during the investigation, clearly and unerringly pointed to
Crl.A.Nos. 786, 795, 919, 926/2001 Page 18
the involvement of the accused Savita, as an active conspirator without whose facilitation
Manoj could not have been killed. Elaborating, the learned APP submitted that PW-1 had
mentioned in the statement recorded on 11th February, 1995 about Savita’s involvement in
the offence. She had also deposed about Savita not willing to have cohabit with Manoj and
further her testifying that the couple slept separately, since Savita used to frequently give the
pretext of ill health. The learned APP submitted that in her statement to the Police, as the first
informant, as well as the statement recorded under Section 313 Cr. P.C. Savita stated that on
the fateful night, three persons had entered the house and on the door being opened by Manoj,
dragged him to the inner room, looted the jewellery and tried to molest her, on which he
(deceased Manoj) resisted, which resulted in his murderous attack and his subsequent
death.The learned APP submitted that entire circumstances emerging from the evidence
falsify this story because PW-35 in his deposition mentioned that there was no sign of
forcible entry. Furthermore, the description of facts leading to the attack is improbable
because before anyone could enter the apartment on the first floor on which the deceased and
accused Savita live, he had or they had to cross two barriers in the form of wooden gate and a
grilled door. The Savita’s story was completely false because there was no forcible entry and
the entrance had been opened in a pre-planned manner to facilitate the entry of intruders to
commit the crime.
33. It was submitted that the Court could always look into the information given by the
accused particularly when the sequence of the events was not denied by him or her in the
course of statement made under Section 313 Cr. P.C. It was submitted that since Savita did
not deny the description of the attack and admitted the facts put to her to be correct, there is
no question of prejudice being caused to her. A comparison between the information
provided by her in the statement under Section 313, as an involvement and circumstances
emerging against her falsify that version. Therefore stated the APP, rule Agnoo Nagesia
(supra) is not attracted and the statements could be used as a circumstance against her.
34. The learned APP next submitted that the omission by Savita to mention the previous
attack upon Manoj on 15.11.1994 in the first statement recorded by her was crucial because
that pointed to her state of mind and desire to suppress that fact. It was argued that no
reasonable person would have forgotten that previous incident, which would have been afresh
in the memory of a near and dear one, especially a wife who had witnessed both the attacks,
i.e. the 15.11.1994 and the crime which occurred in the intervening night 02/03.12.1994.
That Savita did not deny the attack of 15.11.1994 in a subsequent course of trial would not in
Crl.A.Nos. 786, 795, 919, 926/2001 Page 19
any manner diminish the importance of that omission because it constitutes a mental
circumstance, which the Court would take into consideration while adjudging her
involvement in the crime.
35. It was submitted that the information provided by Savita in regard to the attack could
be divided into two parts, i.e. the attack dates and the facts immediately surrounding that
event. As far as the latter were concerned, the facts emerging from the depositions of PW-15,
who was called out from the ground floor by Savita and who corroborated that what was told
to him by her, is material.
36. It was further submitted that the conspiracy hatched by Savita with the Swami was
proved by the reading of the depositions of PW-1, PW-3, PW-15, PW-16 and PW-18, which
brought out the following sequence:
i) That the Swami was known to Savita and her family before her marriage was
solemnized with Manoj.
ii) That even after the marriage, Savita used to frequently receive and attend to calls
made by the Swami.
iii) Savita and Manoj had gone to honeymoon after the marriage to Simla but returned
earlier than the schedule.
iv) The deceased and Savita used to live on the first floor of the premises. PW-1 the
deceased’s mother and her husband PW-3 also used to reside there, however since
PW-3 was posted in Agra, she (PW-1) had joined him there and was also not in
the premises on the first floor on the day when the crime occurred.
v) PW-1 had left her jewellery in the first floor of the premises; they were in the
almirah with Savita’s jewellery.
vi) The conjugal relationship between Savita and the deceased was not a happy one;
the husband and wife used to frequently sleep away from each other despite being
newly married couple.
vii) The family started suspecting Savita a few days after the death of Manoj; the
Swami had participated in some of the Manoj’s death ceremonies. Soon thereafter
he was not welcome in the house of Savita. She too left her in-laws place
sometime in January 1995.
viii) The members of the deceased family voiced their suspicion of the involvement of
Savita during the early investigation.
ix) It was stated that a complaint was also addressed to the higher authorities alleging
that Savita and the Swami’s involvement was not being investigated and
statements to that effect were not recorded by the concerned Policeman.
37. The learned APP submitted that the prosecution also established during the evidence
of PW-16 that Savita had sometime used to come home late claiming that she was visiting her
colleague Ms. Neeta Kohli whereas in reality she was planning the attack with her co-
conspirator the Swami. It was further stated that at 8:30 PM on the fateful evening of
Crl.A.Nos. 786, 795, 919, 926/2001 Page 20
02.12.1994 itself PW-18 had clearly heard the appellant Savita stating on telephone “Aaj
Raat ko kam ho jana chahiye”.
38. It was argued that photographs Ex. PW-17/A and Ex. PW-17/B clearly showed that
the stab wounds and the manner in which Manoj’s body was lying pointed to a pre-planned
attack. If this was compared with Ex. PW-35/C the un-scaled map and if one kept in mind
that the cuts in the towel, which was seized, corresponded with the stab wounds even on the
deceased’s neck and shoulders, there were strong and irrefutable circumstantial evidence
pointing out to pre-mediated and calculated attack upon Manoj and not an assault at the spur
of moment by alleging robbery, as stated by the appellant Savita. Furthermore, stated learned
APP that a khase (thick covering used while sleeping) entangled between the legs of the
deceased was an additional factor that pointed out to a homicidal attack on a sleeping Manoj
and not to his being dragged to the outer room and then attack, as alleged by Savita.
39. It was next argued that pursuant to the statements of the swami, Savita’s premises
were searched, and seizure of Ex. PW-37/E-1 to E-28 and Ex. PW-39/B, letters addressed by
him (the swami) to her, were made. These letters did not show an ordinary guru- shishya
relationship, but that the swami had a deep and earthly emotional attachment and love for
Savita, which he used to express unrestrainedly. This illicit relationship could not under any
circumstance be allowed to become public knowledge, as it would have pointed the needle of
suspicion on the two, i.e. Savita and the swami. Therefore, the two of them went through the
outward pretence of having a spiritual teacher- disciple relationship, while really nurturing an
intimacy of a different kind, which afforded them the strong motive to commit the crime,
after duly planning it. It was argued that the Court would be within its rights to consider and
take into account the most incriminating letter, Ex. PW-37/R, which was recovered from PW-
21, after the swami’s disclosure. The testimony of PW-31 established that the said letter was
handed over to him, by the swami, with specific instructions to deliver it to PW-21 (from
whose premises ultimately the letter was recovered). Although PW-21 spoke about recovery
and seizure of the envelope, she clearly mentioned about a letter; PW-45 deposed that PW-
37/R was recovered from that envelop. Therefore, all the material, connecting PW-37/R with
the swami, had, in substance been put to the Appellant Savita; the error in posing a wrong
query that the letter had been recovered from her premises, in no manner caused her
prejudice.
Crl.A.Nos. 786, 795, 919, 926/2001 Page 21
40. The learned APP relied on the decision of the Supreme Court, reported as Shivaji
Sahabrao Bobade and Anr. v. State of Maharashtra and Anr., AIR 1973 SC 2622, and
Basavraj R. Patil v. State of Karnataka, (2000) 8 SCC 740 and Santosh Kumar Singh v. State,
2010 (9) SCC 776, to say that it is not enough for an accused to say that an incriminating
circumstance was not put to him, by the Court during his examination under Section 313 Cr.
P.C.; he also has to show that the omission actually and materially prejudiced him (or her)
and resulted in failure of justice. In the event of any inadvertent error by the Court, in
questioning the accused (under Section 313 Cr. P.C.) through an omission, that would ipso
facto not result in acquittal, and it would be open for the appellate Court to put the said
incriminating circumstance to the accused or his counsel. Such defect, it was argued, is
curable, and the Court can always take remedial action even in an appeal, if it were to hold
that there was an irregularity in the course of the trial. Therefore, submitted the learned APP,
Ex. PW-37/R could not be eschewed from evidence, particularly, in view of PW-45’s
deposition. It was a highly incriminating piece of evidence, pointing to the guilt of accused
Savita, and her conspiracy with the swami.
41. It was argued that so far as the swami was concerned, the evidence, of PW-1, PW-3
and PW-15 showed that he was on close – even intimate terms with Savita. The evidence of
PW-13 revealed that the swami had asked him to visit his ashram at Rishikesh, which he did
on 07.09.1995. The swami, then, had asked him to tell the police (in the event of his – i.e.
PW-13) being questioned, that the swami visited his house, in 26/14, East Patel Nagar, Delhi
on 30th November, 1994, even though that was not true. It was submitted by the APP that
this, according to the swami, was necessary because one of his drivers, Makhan Singh was
blackmailing his follower. Mr. Sawhney stated that there was further corroborative evidence
of such clandestine meetings, in the form of testimony of PW-33, a sadhvi and another
disciple of the swami, who mentioned about Savita’s trysts with the swami, alone on different
occasions, in her statements, but which were resiled in Court; those statements were put to
her after permission to cross-examine her, was sought. The learned APP submitted that there
was intrinsic support to the veracity of the statements made to the police, because PW-33
admitted to complaints made against the swami, to the police, by her father, and also that she
used to be fearful of him. It was also urged that though PW-34, Krishna Budhiraja, retracted
from the statement made by her previously, there was no doubt that in it (Ex. PW-34/A) she
had categorically mentioned about over a decade long association with the swami, existence
of a room on the third floor of her premises, visits by the swami to her premises, her family’s
Crl.A.Nos. 786, 795, 919, 926/2001 Page 22
association with the swami, her acquaintanceship with Savita, and most importantly that
Savita used to meet him (the swami) occasionally, alone, in that room (on the third floor)
which was meant for his use. It was submitted that a cumulative reading of these testimonies
established that Savita and the swami used to frequently meet alone, even after the former’s
marriage; she had met him twice, before the day of the incident, once even on the same
afternoon/evening, on the pretext of visiting Nita Kohli. Relying on Gura Singh v. State of
Rajasthan, 2001 (2) SCC 205, Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 and
Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 it was argued that merely because
the Court permitted the prosecution to cross-examine its witness(es) describing some of them
as hostile witness does not completely efface such deposition(s). The evidence remains
admissible in the trial and there is no legal bar to base conviction upon the testimony of such
witness. The witness does not become ipso facto unreliable only by his being declared as
hostile. On this ground the entire testimony of such class of witnesses cannot be excluded
from consideration.
42. Arguing about the recoveries effected in this case, particularly from the swami, where
jewellery items and a weapon of offence were seized, it was submitted that the Court cannot
reject such evidence, since the eyewitnesses to the disclosure statements, and the recoveries
had deposed about it, on the ground that they were police officers. It was submitted that the
decision in State Govt. of NCT of Delhi v. Sunil & Anr., 2000 (1) SCC 748 is an authority on
the point that there is no requirement either under Section 27 of the Evidence Act or under
Section 161 of the Cr. P.C., to obtain signature of independent witnesses on the record in
which statement of an accused was written. For these reasons, the arguments in this regard by
the swami, Ravi Chauhan, and Asutosh Banerjee were meritless.
43. It was next submitted that the tape recording of conversations, and the transcripts
prepared, which were exhibited without demur during the trial, are legally admissible
evidence. In this context, it was submitted that the reference to provisions of the
Identification of Prisoners Act, by the appellants, for the argument that no sample of
handwriting or voice, could be obtained without the permission of the magistrate, is
misconceived. In this regard, the prosecution relied on Section 4, which is an independent
power vested in the police, to secure such samples for comparison, and expert advice, which
could be produced in Court. It was argued that the decisions reported as Mohd. Aman v. State
of Rajasthan, 1997 (10) SCC 44, and Shankaria v. State of Rajasthan, 1978 (3) SCC 435
Crl.A.Nos. 786, 795, 919, 926/2001 Page 23
have ruled that under Section 4 of the Identification of Prisoners Act, the police is competent
to take finger prints of the accused.
44. The learned APP submitted that the tape recording and the transcript version were
proved to be that of the accused’s conversations. He stated that drawing of the swami’s voice
samples were not objected to by him, during the trial; the recordings were proved by the
testimony of PW-26, PW-28, PW-38 and PW-43. The expert, who was given the voice
sample (PW-41) identified them with that of the voice in the recorded conversation, in his
report Ex. PW-41/B. The transcripts had been placed on record, as Ex. PW-45/C, Ex. PW-
45/D, and Ex. PW-45/E. The appellant swami did not challenge to the genuineness of the
samples, the report or transcripts- the latter’s copies being provided to him. In this
background, the prosecution had proved this circumstance about the swami’s conversations,
and his attempt to handle a possible blackmail threat, on account of his involvement in the
crime, beyond reasonable doubt.
45. It was submitted that so far as jewellery identified by PW-3 was concerned, there was
nothing illegal or incorrect to persuade the Court to reject his testimony. It was submitted that
the TIP was conducted in November, 1995, about six weeks or so, after the seizure of the
articles was made. This itself could not be a factor to persuade the Court to discard the TIP
proceeding, particularly when the articles were kept sealed in a pulanda, which was opened
during the proceeding. The APP relied on the TIP proceeding, marked as Ex. PW-36/C to say
that the seal on the articles was removed in the presence of the Magistrate, and the other
articles were suitably mixed with the seized exhibits. From this collection, PW-3 was able to
correctly identify the missing jewellery. It was also submitted that the mere circumstance that
PW-3, rather than PW-1 knew about the details of the jewellery cannot be a ground to
persuade the Court to reject his deposition, and the identification of the relevant articles.
46. Mr. Sawhney lastly argued that the prosecution had sufficiently discharged its burden
in proving all the relevant circumstances, as well as the link between each of them, beyond all
reasonable doubt as to establish that they led only to the hypothesis of the Appellants’ guilt,
and every possibility of their innocence was ruled out. Reliance was placed on the ruling
reported as Vikramjit Singh v. State of Punjab, (2006) 12 SCC 306, for the submission that in
these circumstances, such facts which were within the special knowledge of the accused, had
to be explained and proved by them, and the onus to do so shifted to them. The accused
appellants not only did not avail the opportunity, to explain these facts, but also did not
Crl.A.Nos. 786, 795, 919, 926/2001 Page 24
mention anything worthwhile in their statements to the Court, under Section 313, Cr. PC. In
these circumstances, the Court, he submitted, should affirm the findings and sentence of the
trial court, and reject the appeals.
Analysis & Conclusions
47. Now, in this case, it is apparent that there is no direct or ocular evidence. The
prosecution was unable to make any headway. It apparently secured a breakthrough in the
latter part of 1995, on a tip off that the swami was being blackmailed on telephone. By then,
the investigating officer too had changed; PW-45 had taken charge of the investigation into
the offence. On the basis of these leads, the swami was questioned, later arrested, the
recoveries made pursuant to his disclosure, which led to the arrest and implication of other
co-accused. Thus, the case hinges on appreciation of the circumstances. Here a word about
the approach of the Court, in respect of circumstantial evidence is necessary. The phrase
“men may lie, but circumstances do not” is well worn. At the same time, to get to the truth,
the essential requirement of proving the prosecution allegations, beyond reasonable doubt,
does not change; the standard or threshold of proof remains constant, in cases involving
circumstantial evidence. To place the matter in proper perspective, since the mind has a
tendency to boggle, a few tests have been mandated in a string of judicial decisions. Thus, in
Hanumant v. State of Madhya Pradesh, AIR 1953 SC 343, the Supreme Court indicated the
correct approach of the Courts, in the following words:
“It is well to remember that in cases where the evidence is of a circumstantial nature,
the circumstances from which the conclusion of guilt is to be drawn should in the first
instance be fully established and all the facts so established should be consistent only
with the hypothesis of the guilt of the accused. Again, the circumstances should be of
a conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be a chain
of evidence so far complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the accused.”
This approach has been consistently followed and applied in several other judgments, notable
among them being Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198; Ramgopal v. State of
Maharashtra, AIR 1972 SC 656 and in Sharad Birdhichand Sarda v. State of Maharastra,
1984 (4) SCC 116. Sarda an authority on this and other important aspects of criminal
justice/law, put the matter in a lucid terms:
Crl.A.Nos. 786, 795, 919, 926/2001 Page 25
“152. A close analysis of this decision would show that the following conditions must
be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court indicated that the circumstances concerned ‘must
or should’ and not ‘may be’ established. There is not only a grammatical but a legal
distinction between ‘may be proved’ and ‘must be or should be proved as was held by
this Court in Shivaji Sahebrao Bobade v. State of Maharashtra 1973CriLJ1783 where
the following observations were made:
“certainly, it is a primary principle that the accused must be and not merely
may be guilty before a Court can convict, and the mental distance between
‘may be’ and ‘must be’ is long and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and must show
that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the
proof of a case based on circumstantial evidence.”
48. In a previous portion of this judgment, the Court had outlined the various
circumstances which the prosecution had relied on – and that were accepted as proved by the
trial court – to establish the guilt of the four appellants. This Court proposes to discuss the
nature of each circumstance, and determine, whether each of them were proved, and if so, the
prosecution also proved the link between each of them to satisfy the test of proof beyond
reasonable doubt, in line with the existing law pertaining to proof of guilt in cases involving
circumstantial evidence, in criminal cases.
I. The incident of 15.11.1994
49. The first circumstance put forward by the prosecution in this case was the incident of
15.11.1994 in which an attempt was made on the life of Manoj. The prosecution had alleged
that Manoj, while on the way to Connaught Place, was shot at and had sustained injuries.
Crl.A.Nos. 786, 795, 919, 926/2001 Page 26
Savita, who was Manoj’s pillion passenger, had got off, saying that her chappal had fallen.
When the motorcycle was stationary, the assailant shot at Manoj. It was argued by the
prosecution that PW-1 and PW-15 proved that Savita was instrumental in ensuring that this
incident was not reported to the police. This was to show that she was anxious to rule out the
possibility of an investigation, and therefore, that a conspiracy to do away with Manoj existed
at the time. The prosecution argument further was that Savita did not report this incident,
even as informant about the homicidal attack leading to Manoj’s death, and that she did not
help the police to recover or seize the clothes worn by Manoj on the day of the attack. Being
the most proximate to the point of time when the murder took place, her omission to mention
about the previous attack was unnatural, pointing to a guilty mind.
50. The record discloses that Savita, in her statement under Section 313 Cr. PC. did not
dispute the incident itself, or the sequence of events connected with it. The prosecution had
placed strong reliance on the testimonies of PW-1, Manoj’s mother, as well as that of PW-15
(Madan Lal Girotra) to say that Savita was instrumental in prevailing on all others not to
report the shooting incident of 15.11.1994, which injured Manoj. Both these witnesses have
no doubt stated this, in their depositions – not once, but repeatedly, at various stages.
However, three other aspects have to be noticed while considering this circumstance. The
first is that PW-15 stated, in the course of her evidence to a specific question about the
reactions of individual family members, to the incident, that:
“We did not lodge FIR as we were of the opinion that our son had been saved by the
grace of God, despite such a dangerous incidence (sic incident). This was the decision
of the whole family.”
Secondly, PW-3, Manoj’s father, who was not in Delhi, on 15.11.1994, was not even
informed about the incident on that day, by other members of the family. He deposed that he
learnt about the incident 2 or 3 days later when he returned to Delhi from Agra, on a visit. He
also sought to corroborate the evidence of PW-1 and PW-15 that Savita prevailed on him not
to report the incident because the assailant was apparently a mad person. This aspect is
somewhat strange, because the gravity of the incident, i.e. an attempted murder, was
sufficient for the elders in a family, normally to have reported the matter to the police. PW-3
and the deceased were educated; so too, was PW-15. Yet, they inexplicably allowed
themselves (according to their depositions) to be persuaded by Savita, a young and
inexperienced bride, into not reporting the matter. Apart from the fact that PW-1’s deposition
regarding the collective decision of all members of the family not to report the matter, having
Crl.A.Nos. 786, 795, 919, 926/2001 Page 27
a ring of conviction, it is unbelievable that in the circumstances of this case, a newly married,
barely one month into the family bride could have prevailed over all members of the family
and ensured that the attack was not reported. The third aspect is that the alleged assailant, i.e.
Raju, was also sent up for trial. There was no recovery. The Trial Court held that there was
no evidence, and acquitted him.
51. So far as the second argument on this previous incident is concerned, the prosecution
has sought to use the statement of Savita, recorded in the first incident, while reporting the
attack, on 3rd November, 1994, to allege that she deliberately suppressed any reference to it,
which indicated a culpable mind, bent upon misleading the course of investigation. For this
purpose, the prosecution relied on Ex. PW-6/A, to highlight the omission. The appellants
argued that the statement cannot be gone into by the Court, because of the bar contained in
Section 162, as well as the settled line of authorities, which have ruled that the statement of
an accused, in the course of investigation, or as a first informant, cannot be taken in evidence.
52. The earliest decision on the question is Nissar Ali (supra), in which, in the Supreme
Court outlined the position as follows:
“A First Information Report is not a substantive piece of evidence and can only be
used to corroborate the statement of the maker under s. 157 of the Evidence Act or to
contradict it under s. 145 of that Act. It cannot be used as evidence against the maker
at the trial if he himself becomes an accused, nor to corroborate or contradict other
witnesses. In this case, therefore, it is not evidence.”
Agnoo Nagesia (supra) explained the matter in the following terms:
“10. Section 154 of the Code of Criminal Procedure provides for the recording of the
first information. The information report as such is not substantive evidence. It may
be used to corroborate the informant under s. 157 of the Evidence Act or to contradict
him under s. 145 of the Act, if the informant is called as a witness If the first
information is given by the accused himself, the fact of his giving the information is
admissible against him as evidence of his conduct under s. 8 of the Evidence Act..”
The position was reiterated in Khatri Hemraj Amulakh v. State of Gujarat, AIR 1972 SC 922,
as follows:
“…no part of a first information report lodged by the accused with the police could be
admitted into evidence if it was in the nature of a confessional statement. The
statement could, however, be admitted to identify the accused as the maker of the
report. The part of the information as related distinctly to the fact discovered in
consequence of the information could also be admitted into evidence under Section 27
of the Indian Evidence Act if the other conditions of that section were satisfied.”
K.A. Vish (supra) explains the issue thus:
Crl.A.Nos. 786, 795, 919, 926/2001 Page 28
“It may be pointed out that any statement made in the Panchnama cannot be used in
evidence except for the purposes of contradicting the witness whose statement is
contained in Panchnama but if it is intended to contradict him by the writing his
attention must before the writing can be proved, be called to those parts of it which
are to be used for contradicting him. This is what is required under Section 145 of the
Evidence Act but even where a witness is confronted by his previous statement and
given an opportunity to explain, that part of the statement that is put to him does not
constitute substantive evidence.”
53. In this case, the trial court inferred – and concluded – that Savita’s omission to
mention the previous 15th November 1994 incident, in the first information statement
recorded by her, on 3rd December, 1994, showed a culpable mind, and was an established
circumstance against her. The rule spelt out in Nissar and Nagesia are clear, that the facts
stated in the first information report are ipso facto inadmissible, against an accused, except to
show that she (or he) was an informant. In this case, therefore, only the circumstance that
Savita was the first informant who reported the matter, and got the statement recorded can be
validly considered. However, all other allegations, and inferences, stemming out from her
omission to mention the 15th November 1994 incident, cannot be looked into by the Court.
Significantly, there is evidence on the record in the form of deposition of PW-35, who
testified that Ex. PW-14/4 (a wind cheater worn by Manoj when he was attacked on
15.11.1994) was handed over to him by Savita. This witness stated that PW-15 had
mentioned about the incident. Yet, PW-15 does not mention having told PW-35 about the
previous attack on Manoj, in his deposition. PW-3 sought to build on the prosecution story by
stating that Savita was reluctant to hand over Manoj’s clothes – a statement clearly
contradicted by the documentary evidence, as well as PW-35, who does not mention any such
obstruction, in his testimony. The Court, therefore, holds that the trial court fell into error in
considering the first information report and the omission by Savita to report the previous
incident, as an incriminating suspicious circumstance against her.
II. The attack on Manoj and prosecution evidence that Savita’s description was false
54. The prosecution had relied on Ex. PW-35/C, a sketch prepared by PW-35, who had
reached the spot soon after the occurrence. In addition, the prosecution relied on a scaled
sketch, drawn on 04.01.1995, by the draftsman, Balbir Singh. This map sets out the various
points in detail, pinpointing the topography of the first floor of the premises in question, the
different rooms, the point where the attack took place, where the various furniture pieces
were kept, etc. These two documents, as well as photographs, proved by PW-17, and the
Crl.A.Nos. 786, 795, 919, 926/2001 Page 29
post-mortem report, which indicated that the deceased succumbed to stab injuries, were relied
on. The prosecution argument was that Savita had facilitated the attack, by keeping the outer,
as well as the main wooden door open, for the accused to enter the premises, which they did,
and thereafter proceed to stab a peacefully sleeping Manoj, who was in the last room. It was
argued that Savita’s story about assailants forcing their way inside, after Manoj opened the
door, when they knocked, is simply unbelievable, because no one, especially someone who
was attacked as recently as Manoj, and who was recently married, would easily open the door
at 1:30 AM. Great emphasis was given to the statement of PW-15 – he had deposed that
when Savita called him out, saying “Pitaji upar aao, Dekho na inko kya ho gaya” after the
attack, he rushed to the first floor, which was locked from outside.
55. The evidence of PW-1 and PW-15 indicates that the ground floor of the premises
were occupied by the latter (PW-15’s) family; PW-1, PW-3, deceased Manoj and Savita lived
on the first floor. PW-1 and PW-3, resided at that time in Agra, where PW-3 was posted on
duty. PW-15’s evidence also indicates that a tenant used to reside on the second floor; this is
corroborated by PW-35 in his deposition; he even stated that the said tenant had been
questioned. He stated that the dog squad arrived at 4:30 AM, and nothing could be made out
through the search. He further stated that no dirt had been disturbed on the back walls of the
premises. Now, beyond proving that the incident took place on the first floor, and that it had
an entry through a wooden gate or door, the prosecution did not state anything of the kind, as
is sought to be made out before the Court. Its argument here is built upon the appreciation of
an unmarked sketch drawn to scale, spoken about by a witness who drew the sketch more
than a month after the incident. This detailed scaled sketch contains particulars such as the
precise points where the furniture was placed, where the assailants entered from and went to,
where the attack took place, and the jewellery was looted. This document is inadmissible,
because of the rule spelt out in Tori Singh, where the Supreme Court held as follows:
“The validity of this argument depends mainly on the spot which has been marked on
the sketch-map Ex. Ka-9 as the place where the deceased received his injuries. In the
first place, the map itself is not to scale but is merely a rough sketch and therefore one
cannot postulate that the spot marked on the map is in exact relation to the platform.
In the second place, the mark on the sketch-map was put by the Sub-Inspector who
was obviously not an eye-witness to the incident. He could only have put it there after
taking the statements of the eye witnesses. The marking of the spot on the sketch-map
is really bringing on record the conclusion of the Sub-Inspector on the basis of the
statements made by the witnesses to him. This in our opinion would not be admissible
in view of the provisions of section 162 of the Code of Criminal Procedure, for it is in
effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told
Crl.A.Nos. 786, 795, 919, 926/2001 Page 30
him that the deceased was at such and such place at the time when he was hit. The
sketch-map would be admissible so far as it indicates all that the Sub-Inspector saw
himself at the spot; but any mark put on the sketch-map based on the statements made
by the witnesses to the Sub-Inspector would be inadmissible in view of the clear
provisions of section 162 of the Code of Criminal Procedure as it will be no more
than a statement made to the police during investigation.”
This decision was followed, and the rule, applied in Jagdish Narain (supra). In the present
case, the scaled map or sketch is, therefore, clearly inadmissible, and cannot be taken into
account, because its maker prepared it on 04.01.1995, under instructions from someone who
was not an eyewitness to the incident. However, Ex. PW-35/C cannot meet the same fate; it
was prepared by PW-35, on the basis of his personal observations. This document,
nevertheless, is of not much assistance, because it merely shows the entries to the different
rooms in the first floor of the premises where the crime occurred. As far as evidence of PW-
15 is concerned, the prosecution attempted to say that when the incident was reported,
immediately after it happened, to other members of the family, the door was locked from
outside. A strong insinuation was made that Savita facilitated the safe escape of the
assailants. On this, PW-15 varied his earlier statement; in Ex. PW-15/DA, he stated that the
first floor door was closed from inside; his deposition in Court was that it was closed from
outside. He later clarified that what he meant was that it was closed from Savita’s side.
Nothing much can be made out of this statement, because PW-35 states that the entry into the
first floor premises was through only one door. There is of course a reference to another outer
door, in PW-15’s deposition. However, he also admitted that the first floor could be accessed
from the main ground floor staircase. PW-15 stated that the wooden outer door on the first
floor was 3 feet high, and that a wall abuts that gate, which can be jumped by anyone. His
evidence also is that the entry for the first and second floor, from the street level, is through a
common door, and a common staircase.
56. The evidence discussed about the first floor topography of the premises, though
lengthy, is to show that the prosecution did not allege any specific route alleged to have been
used by Manoj’s assailants on the fateful day. No photographs of the premises, or the stairs,
have been placed on record. No clear cut plan showing how the assailants entered, according
to the prosecution, and how Savita facilitated the attack has been argued. The prosecution
attempt was to bank on the sketches, and build on the theory that the attack mentioned by
Savita was not possible, and that Manoj was sleeping at the time he was murdered. While
there can be no doubt that Manoj was brutally assaulted, and that the attack was with
Crl.A.Nos. 786, 795, 919, 926/2001 Page 31
homicidal intention, having regard to the nature of stab injuries all over the face, neck and
shoulders, particularly the neck – which led to his death, that itself cannot be connected with
the hypothesis that such attack was not possible without Savita’s connivance. The testimony
of PW-15 who arrived at the scene, soon after the incident, shows that the apartment was in
disarray, with the almirah open and articles scattered around. Apart from the fact that
Savita’s statement describing the sequence of events leading to the incident, cannot be looked
into for the reason mentioned in the previous section dealing with the 15.11.1994 incident (on
an application of the rule in Nissar Ali and Agnoo Nagesia), there is no acceptable evidence,
to support the prosecution version, which at best is an unproven hypothesis, that she had
collaborated with the accused, and facilitated their entry. The prosecution apparently did not
argue about the location of the body, and the nature of injuries found on it, to submit that the
attack was a preplanned and calculated one (as is argued here, based on the cuts found on the
neck, the towel used to staunch the blood, the pillow, and also the location of the khes, on
Manoj). The Trial court also did not put the relevant queries, as regards these circumstances.
Therefore, the prosecution argument that Savita had facilitated the entry of the co-accused
into the premises, since the nature of Manoj’s injuries, and the various entries into the
premises bespoke a contrary story, being another strong circumstance pointing to her guilt,
cannot be accepted. The findings to the contrary by the trial court cannot be sustained.
III. An illicit relationship between Savita and the Swami, the deceased’s family
members’ suspicions, telephonic conversations, and meetings between the two Appellants
and similar circumstances leading up to the incident and death of Manoj
57. These circumstances are projected as motive, as also the proof of the two accused
having committed the crime. On this, the evidence relied upon by the prosecution was the
suspicion of Manoj’s family members, about the involvement of Savita and the swami, in the
murder, frequent telephone calls between each of the said accused, clandestine meetings
between them few days before the incident and Savita’s telephonic conversation at 08:30 PM,
on 2nd December, 1994, when she is alleged to have been heard saying “Aj raat ko kaam ho
jana chahiye”. Most importantly, the prosecution relied on three letters, Ex. PW-37/E-1 to E-
28, Ex. PW-39/B and Ex. PW-37/R. The first two were recovered from Savita; the last was
said to have been recovered along with an envelope, from the premises of PW-21.
58. PW-1 and PW-15 deposed having been suspicious about Savita’s conduct and role in
the murder, as well as the involvement of the swami. However, PW-1 was confronted with a
previous statement made to the police, under Section 161 Cr. P.C. on 11.02.1995, when
Crl.A.Nos. 786, 795, 919, 926/2001 Page 32
concededly no such suspicion had been voiced. Similarly, PW-15’s statement, recorded
immediately after the incident, does not reflect any such suspicion. The prosecution sought to
explain this by saying that these witnesses had entertained their suspicions, at the relevant
time, but it was not reflected in the earliest statements, because the police at that time was of
opinion that the angle should not be pursued without any concrete material. Reliance is
placed on the evidence of PW-35, who has so stated. The prosecution evidence, in the form
of testimony of PW-1 and PW-3, is also to the effect that a complaint was made to the
superior police officers, after which the conspiracy angle was explored, and subsequently,
investigation was handed over to PW-45.
59. It is a matter of record -as is evident from the deposition of PW-1, that no suspicion
was voiced, or recorded in the statement recorded by the police on 11.02.1995. The witness,
i.e. Manoj’s mother, mentioned that soon after the incident, in early December, she was in a
shock, and confused state of mind, and several relatives were visiting to condole with her.
What is significant, however, is that more than two months later, i.e. in February, 1995, she
did not deem it appropriate to voice this suspicion. Furthermore, she deposed that Savita
stayed with Manoj’s family till end December, 1994, or January, 1995. This part is
corroborated by PW-3. This witness also stated that he too harboured some suspicions about
Savita’s involvement. However, he was confronted with his previous statement, recorded by
the police, on 25.12.1994, where no such suspicion had been recorded. As regards PW-15,
though he deposed in his examination-in-chief, about Savita’s alleged unnatural behaviour
and suspicions about her involvement, he was confronted with the previous statement made
to the police, where such allegations had been noted. Having regard to these, the Court is of
opinion that it would be unsafe to consider the vague suspicions supposedly entertained by
members of the deceased’s family.
60. PW-1, PW-3 and PW-15 deposed that the swami and Savita used to hold long
conversations over telephone. It was also deposed that the swami had, after about four days
of the homicidal attack, mentioned that Savita was a suspect, and that considerable amount of
money had to be spent to save her. They also deposed that the swami had attended the death
ceremony of Manoj, and was also there when his asthi were consigned to the Holy Ganges.
These witnesses also deposed having gone to his Ashram at Hardwar, with Savita, and that
she spent a long time talking to him, and even remained closeted alone with him. Further, the
prosecution case was that the swami had met Savita on 30.11.1994, in the evening, and tried
Crl.A.Nos. 786, 795, 919, 926/2001 Page 33
to cover it up, by asking PW-13 to depose in Court that if questioned by the police, he should
tell that he (the swami) had in fact visited PW-13 that time, since he lived in West Patel
Nagar. PW-18 deposed that when Manoj and his sister were watching television on the night
of 02.12.1994, Savita was on the phone, distinctly saying that “Aj raat ko kaam ho jana
chahiye” to someone.
61. PW-1 was, in her cross-examination confronted with her previous statements, where
she had not mentioned about the swami frequently trying to talk to Savita on telephone, or
that the family had gone to Hardwar, and stayed there, after Manoj’s death, for immersing his
ashes. She was also confronted with her previous statement, where it was not mentioned that
Savita and the swami were closeted together for some time, by themselves, when in Hardwar.
These facts were not part of the witnesses’ statement dated 11.02.1995. The witness made
two subsequent statements to the police, in August, and September 1995. As regards PW-3,
the prosecution recorded no less than four statements; the first on 25.12.1994 (22 days after
the incident); the second on 11.02.1995, the third on 04.04.1995 and the last one, on
01.08.1995. In the first three statements, he did not mention about the swami spending a lot
of time, talking to Savita at Rishikesh; he was confronted with these, when he deposed in
Court. Likewise, in the first three statements, there was no mention that the swami suggested
that money had to be given or spent, to save Savita, who was then allegedly suspected by the
police, soon after Manoj’s death. This allegation was recorded for the first time, in the last
statement made to the police on 01.08.1995; the witness was confronted with his previous
statements. PW-3, however, has not mentioned about any telephonic conversations between
Savita and the swami. The last circumstance was PW-18’s deposition that he heard Savita on
the phone, distinctly saying that “Aj raat ko kaam ho jana chahiye” to someone at 08:30 PM
on 02.12.1994. This witness also stated that he had mentioned this to other family members;
however, PW-1 and PW-15 or even PW-3 do not corroborate his testimony, on this score.
62. It was argued, in addition to the evidence discussed above, that a cumulative reading
of the testimonies of PW-16, PW-13, PW-30, PW-31 and PW-34 (though some of them had
been declared hostile, and cross-examined by the prosecution) revealed that soon before the
incident of 02/03.12.1994, the swami and Savita had met, in house of PW-34, (where they
were normally in the habit of holding trysts and meetings, on a one to one basis) and that
PW-13 was asked by the swami not to reveal this if questioned by the police.
Crl.A.Nos. 786, 795, 919, 926/2001 Page 34
63. PW-16 had deposed that Savita returned late from school, around 4:30 PM, (where
she used to work) and told her that she had visited PW-20, a colleague. She further deposed
that when PW-20 was asked about this, after Manoj’s death, she stated that Savita had never
visited her (PW-20’s) place. As opposed to this, PW-20, in her deposition, admitted that
Savita was a colleague, and had not visited her. She also stated that no one asked or verified
this fact form her at the time of performance of the death rites of Manoj, when she had visited
to condole with Savita. PW-13 Ramesh Kumar deposed about his acquaintanceship with the
swami and that on 06.09.1995 the swami asked him to reach Rishikesh, which he did the next
day. The swami, whom PW-13 met in his Ashram, asked him (PW-13) to help his follower
who was in trouble and that one driver, namely, Makhan Singh was blackmailing his
follower. The swami also asked PW-13 to help him (the swami) and tell the police, in case of
any inquiry by them, that he had visited PW-13 on 30.11.1994, at 26/14, East Patel Nagar,
which was factually incorrect. PW-33 was cited as a witness; the prosecution sought
permission to cross-examine her, which was granted. She used to live in Tagore Garden; she
denied the suggestion that frequently, the swami and Savita used to meet each other, and that
at times, Savita used to stay overnight in her place, with the swami. She was confronted with
her previous statement, made to the police, to the contrary. PW-34 was a long standing
devotee of the swami. She was cited as a witness, because in the previous statement recorded
to the police, she had allegedly stated that Savita had visited her place (PW-34’s) place and
met the swami. She was confronted with this statement, which she denied; She also denied
having told the police, in any previous statement that Savita used to meet the swami at times,
in a third floor room, in the witnesses’s house, which was kept aside for the swami’s room.
She confirmed about her knowing Raj Kumar, who had been accused for the offence of
attempted murder, but was acquitted of the charge, in the impugned judgment.
64. Now, a careful and objective analysis of the above evidence would reveal that the
testimony of PW-16 is unreliable, because it is contradicted by PW-20, as far as Savita
returning late is concerned. PW-20 categorically denied having conversed with anyone in
Savita’s family, including PW-16, although the latter stated that she had talked with her, and
obtained the information about Savita not visiting her. So far as the clandestine meetings on
30.11.1994 or 01.12.1994, the two eyewitnesses – alleged to have seen these, and have first-
hand knowledge of the incident, are concerned, -turned hostile. The only positive evidence
favouring the prosecution is that PW-13 was asked by the swami to inform the police –
untruthfully – that he had visited the witness, on 30.12.1994. This circumstance is pressed as
Crl.A.Nos. 786, 795, 919, 926/2001 Page 35
the starting point, to persuade the Court to accept the unsworn testimony of the two
witnesses, PW-33 and PW-34. However, those two witnesses have not supported the
prosecution story at all. They are also not witnesses to any other proven circumstances. Also,
the prosecution has not brought on record any objective evidence or deposition showing that
the swami was in Delhi, and in the vicinity of the premises, where the offence occurred, at
around 30.11.1994 and for the next few days. The testimony of PW-13 no doubt results in
some suspicion about the swami, and his relationship with Savita. However, that alone, in the
absence of any evidence to corroborate the Section 161 statements of PW-33 or PW-34 or
lead the Court to take into account such statements, and discard as untrue their sworn
testimony before the Court, to the contrary.
65. It would now be necessary to examine the letters recovered from Savita, being Ex.
PW-37/E-1 to E-28 and Ex. PW-39/B. The first document is a 28 page long letter, addressed
by the swami to Savita. Both letters are written with intensity, and contain advise to Savita,
about the transience of life, immortality of the soul, inevitability of destiny and fickleness of
the mind, which is attached to objects, contexts and people. The swami emphasized that a
guru is a spiritual guide, whose objective is to help and educate the disciple to achieve peace
and understanding. The swami mentions about previous saints, who were able to achieve
what they set out to acquire, despite several barriers and obstacles put in their paths.
Exhibiting at times a depth of feeling and intensity that is normally not seen between a guru
and shishya, the letters do not show anything incriminating against Savita and the Swami.
PW-37 mentioned, in his deposition, that these letters were seized pursuant to Savita’s
disclosure statement. These letters, in the opinion of the Court only show that the swami felt
very concerned about the mental unhappiness, and trauma, which Savita apparently
experienced, and which he tried to minimize with the help of his advice (to her).
66. The next letter is Ex. PW-37/R. The prosecution relied heavily on this, to say that
Savita and the swami had an intimate and illicit relationship, which, taken together with
several trysts between each other, constituted a motive for conspiracy and murder of Manoj.
PW-21, Rama Bajaj, deposed that sometime in 1995, one Swami, Gajanand, connected with
her guru, (the Appellant-swami in this case) had handed over an closed envelop to her and
asked it to be handed over to Savita. This envelop was taken, subsequently by the police, who
went outside, and later returned, asked her to sign, in acknowledgement of handing over the
envelope. She therefore, proved the memo Ex. PW-21/A, the seizure memo in respect of the
Crl.A.Nos. 786, 795, 919, 926/2001 Page 36
envelope. The envelope was addressed to “Savita”, and was handed over when PW-21 was
sitting with her lady friends. PW-37 initially stated that he had seized the letter PW-37/R; he
however, later clarified that he did not do so. PW-45 Rajbir, the last IO in the case, deposed
having recovered Ex. PW-37/R under memo Ex. PW-21/A. Now, Ex. PW-21/A mentions an
envelope, as well as some letter in it. However, it does not identify the letter as a two page
document, such as Ex. PW-37/R. In her evidence, PW-21 merely stated that the envelope was
recovered from her possession; she did not say that Ex. PW-37/R was taken out of it; she
does not also identify it. Her signatures are not found on Ex. PW-37/R. To compound these
complications, the Trial Court’s question to Savita, under Section 313, was that Ex. PW-37/R
was recovered on 13.09.1995 from her possession. The swami’s statement under Section 313
was, however, that Ex. PW-37/R was forcibly procured from him, after his arrest.
67. It was argued on behalf of the Appellants that having regard to the circumstances in
which the recovery of Ex. PW-37/R is alleged to have been made, and the further fact that the
letter was not put to Savita, suitably in examination under Section 313, it was not correct for
the trial court to have relied on the document. The decision of the three judge Bench in Sarda
was relied on for this purpose; it was also contended that the course suggested by the
prosecution to put the correct query to Savita, in the appellate stage, would result in grave
prejudice, because even if the case were to be remanded for considering whether to permit
her to lead additional evidence, now, 17 years after the incident, prejudice is inherent and writ
large. In this context, it was submitted that the only witness proving the document, PW-45
Rajbir died some while ago, during an encounter operation. It was argued that the Appellant’s
chance of cross-examining him, on this aspect therefore would be denied; equally, the
appellant’s opportunity to put other letters written by the swami, showing intense and close
relationship, to PW-45 is deprived. Savita’s counsel relied on the decision reported as
Machander v. State of Hyderabad, (1955) 2 SCR 524, where it was held by the Supreme
Court, rejecting a similar request, as follows:
“We were asked to reopen the question and, if necessary, to remand the case. But we
decline to do that. Judges and Magistrates must realise the importance of the
examination under Section 342 of the Criminal Procedure Code and this Court has
repeatedly warned them of the consequences that might ensue in certain cases. The
appellant was arrested in December 1950 and has been on his trial one way and
another ever since, that is to say, for over 4½ years. We are not prepared to keep
persons who are on trial for their lives under indefinite suspense because trial judges
omit to do their duty. Justice is not one-sided. It has many facets and we have to draw
a nice balance between conflicting rights and duties. While it is incumbent on us to
see that the guilty do not escape, it is even more necessary to see that persons accused
of crime are not indefinitely harassed. They must be given a fair and impartial trialCrl.A.Nos. 786, 795, 919, 926/2001 Page 37
and while every reasonable latitude must be given to those concerned with the
detection of crime and entrusted with the administration of justice, limits must be
placed on the lengths to which they may go. Except in clear cases of guilt, where the
error is purely technical, the forces that are arrayed against the accused should no
more be permitted in special appeal to repair the effects of their bungling than an
accused should be permitted to repair gaps in his defence which he could and ought
to have made good in the lower courts. The scales of justice must be kept on an even
balance whether for the accused or against him, whether in favour of the State or not;
and one broad rule must apply in all cases.”
Learned counsel argued that the subsequent rulings relied on by the prosecution did not take
note of this decision, and the approach indicated in it, and that the applicability of the test of
prejudice, indicated in recent decisions, was evolved by two judge Bench decisions, as
opposed to the above ruling, rendered by three judges. On the other hand, the prosecution had
urged that the applicable test in all these cases, is one of prejudice (by referring to Basavraj
Patil; Shivaji Sahabrao Bobade; and Santosh Kumar Singh supra). It was stated that since
both the swami and Savita were represented ably by counsel, who knew what was the case
put against them, and all the circumstances leading to the recovery of Ex. PW-37/R had been
proved by PW-45, if at all the Court feels there is some prejudice, it would be in the fitness of
things that the correct query is put to Savita, and depending upon her answer, the matter
could be remanded to the limited extent to the trial court, if she feels that additional evidence
has to be led by her, on that aspect.
68. Both Sarda and Machander are by three judge benches of the Supreme Court. They
underline the importance of asking the right questions to the accused, and the prejudice being
inherent if the query is not put, but sought to be relied on to return a finding of guilt. The
subsequent judgments, such as Bobade and Patil do not refer to the previous decision in
Machander, but seem to suggest that if found appropriate, the appellate Court may put the
question to the accused or his counsel. Undoubtedly, there appears to be a shift in approach.
However, even the later decisions emphasize that the Court should be alive to whether not
putting the right question would result in prejudice. In this case, Ex. PW-37/R is sought to be
used as a prized evidence, to substantiate conspiracy between Savita and the swami, and an
attempt to cover up something, which is unsavoury and a crime. If the proper question is not
put to the accused – in this case, Savita, there can be no question that it would result in her
prejudice; even without putting the right question, the trial court took the letter into
consideration, and this has resulted in prejudice, and conviction. These apart, the Court is also
alive to the fact that now, 17 years after the incident, it would be a travesty of justice to ask
the relevant question to Savita, and if requested for by her, remit the matter for permission to
Crl.A.Nos. 786, 795, 919, 926/2001 Page 38
lead further evidence. This course will undoubtedly prejudice her, as it will amount to
admitting that PW-45’s version was correct. That witness cannot now be cross-examined
since he is no longer alive. Furthermore, prejudice is also discernable, because it would be
difficult, if not impossible, for Savita, to lead further evidence on any aspect – howsoever
limited, due to long passage of time.
69. Another reason why the Court feels the inappropriateness of agreeing to the
prosecution to question Savita, is that the circumstances surrounding recovery of Ex. PW-
37/R are suspicious. PW-21 merely referred to the envelope, recovered under Ex. PW-21/A.
She did not mention about the letter, said to have been extracted from it, by PW-45.
Furthermore, significantly, to the extent she does not support the prosecution on this aspect,
she was not declared hostile, or cross-examined, which is significant. Her deposition clearly
contradicts that of PW-45, who mentions having seized Ex. PW-37/R in her premises. It is
inconceivable that the witness to recovery of an envelope is not made witness to the recovery
of the most relevant prosecution piece of evidence, i.e. Ex. PW-37/R. For all these reasons,
this Court is of opinion that Ex. PW-37/R should not have been taken into account, in
evidence; the trial court’s findings to the contrary cannot be sustained.
70. Another fact which the prosecution had relied on was the alleged conversations which
Savita held with the swami, over telephone. To establish this, reliance was placed on the
deposition of PW-44, Ms. Porus, the owner or service provider of a STD booth at East Patel
Nagar. This witness could not positively identify Savita as one of her customers; she could
not also depose, with any degree of specificity that Savita used to make STD calls to the
swami’s Hardwar telephone number. There is something in the evidence that a few calls were
made to a place in Hardwar, from the telephone booth; however, the identity of the person
making the calls is utterly unclear. In these circumstances, these facts cannot be considered as
suspicious circumstances, or conclusively proven circumstances. The trial court fell into error
in holding otherwise.
IV. Tape recordings relied on by the prosecution
71. The prosecution alleged – through PW-26 that pursuant to authorization from the
DCP, a police party went to Rishikesh, and on the basis of the authorization, kept a
surveillance over the conversations from the swami’s end, over telephone. PW-38 deposed
that on three dates, in September, 1995, the police party listened to conversations, and on the
basis of pre-decided signals, recorded them. The general purport of two of these tape
Crl.A.Nos. 786, 795, 919, 926/2001 Page 39
recordings was that one Mr. Sharma posed himself to be a CBI official, and sought to extort
the swami in respect of a murder which had taken place in East Patel Nagar, in 1994. The
third conversation was with someone, and the swami, instructing the latter to deliver a letter.
PW-45 marked the three transcripts of the tapes. PW-26 exhibited them. The prosecution also
relies on PW-41’s evidence; he is a voice analyst, who prepared a report which was submitted
in evidence, to say that the swami’s conversations had been recorded.
72. The appellants argue, quite pertinently that although transcripts have been marked in
evidence, the trial court did not play the tapes during the trial. It is argued, significantly, that
the authorization even from the concerned police officer, to tap the telephone, which is
spoken about by the witness, has been exhibited. Besides, these concerns, the Court observes
that the concerned MTNL officer who was involved in the tape recording has neither been
named nor produced as a prosecution witness. Furthermore, the prosecution relied on the
evidence of PW-26 and PW-38, both of whom mentioned that a private tape recorder was
used for this purpose. That instrument was not seized; one wonders how such a “private”
phone tapping device was available, and if the police had authority to record conversations,
as they claim they did, why no official device was used. No record of the kind of instrument
used has been filed. Most crucially, none of the witnesses who claim to have witnessed or
assisted in the recording procedure, in fact knew, were familiar with the swami’s voice.
Similarly, there is nothing to show that the telephone number under surveillance and from
which the conversations were recorded, belonged to or was accessed by the swami.
73. So far as the expert evidence is concerned, the Court notes that the transcripts relied
on by the trial court do not show the exact conversations, and who spoke what. Though the
voice samples given to PW-41, are said to match those in the three tape-recordings, in the
absence of identity of those conversing, in the transcripts, it would be unsafe for the Court to
rely on this evidence. The rulings in R.M. Malkani; Ziyauddin Burhanuddin Bukhari and Ram
Singh (supra) have mandated safeguards, which are to be followed by courts while taking into
account tape-recorded telephonic conversations. Here, none of the witnesses knew, or could
have identified the swami’s voice; none of them have shown convincingly that the possibility
of tampering with tape recordings had been eliminated. Besides, the authenticity of the tapes
becomes questionable, since the prosecution does not produce the authority documents which
persuaded the MTNL officials to accept the request for telephone tapping; in fact even
MTNL officials did not depose in support of the prosecution, corroborating its version. The
authorities are uniform and clear on this aspect; the voice of the accused, or the maker to
Crl.A.Nos. 786, 795, 919, 926/2001 Page 40
whom a conversation was attributed, had to be identified by someone familiar with it. That is
not the case here; the prosecution merely points at the transcripts and states that copies were
given. In the absence of proof that the swami’s conversation was in the tapes, by one who
was familiar with his voice, the Court cannot jump to the conclusion that he was one of the
participants in the three telephonic tape recordings. In view of this finding, it is held that the
trial court fell into error in considering the alleged transcripts of telephonic conversations, or
even the conversations, and concluding that it constituted a proven suspicious circumstance.
V. Recovery of Jewellery and its identification and recovery of weapons
74. According to the prosecution, and deposition of PW-26 jewellery is alleged to have
been recovered from the premises of the swami, Ravi Chauhan and Asutosh. It is alleged that
pursuant to statement of Ravi Chauhan, eight rings were recovered from E-396, First floor, JJ
Colony, Inder Puri, New Delhi through Memo Ex. PW26/C. Ashutosh was arrested at the
pointing out of Ravi Chauhan and his disclosure statement Ex. PW26/D led to recovery of
six pairs of ear tops, one pair of ear rings, one pair of jhumka weighing 46 gms by Memo Ex.
PW26/E. PW27 Const. Babu Lal deposed that on 18.01.1995 he collected 8 pulandas from
MHC (M) and deposited them in CFSL, Lodhi Complex by RC No.214/21. It is alleged that
when the police party visited and questioned the swami, who opened a steel almirah and took
out a red coloured potli containing eight gold bangles, two gold karas, one gold chain, one
mangal sutra and a necklace, which were taken into possession by Memo Ex. PW37/N.
75. PW36 Shri Paramjit Singh, Metropolitan Magistrate, Tis Hazari Courts deposed that
on 04.11.1995 an application for the TIP of the case property was marked to him and the TIP
was fixed for 10.11.1995 by his endorsement Ex.PW36/A and on 10.11.1995 the TIP of the
case property was fixed for 15.11.1995 by endorsement Ex. PW36/B. On 15.11.1995 Jagdish
Rai, father of deceased identified the case property and he prepared the TIP proceedings for
the identification of the case property by Ex.PW36/C. He gave certificate regarding the
correctness of the proceedings was given to the IO by endorsement Ex.PW-36/E.
76. PW-3 claimed to have purchased the jewellery. He testified that jewellery was bought
for Savita, from R.R. Jewllers. This witness did not interestingly, mention about the jewellery
or its particulars in the first two statements, recorded by him, on 25-12-1994 and 11-2-1995.
There is mention of jewellery for the first time, on 04.04.1995. The witness PW-3 however, is
general and unspecific in his evidence on this aspect. The second aspect is that he states that
Crl.A.Nos. 786, 795, 919, 926/2001 Page 41
particulars about the jewellery were obtained from Savita. Now, the prosecution story is that
Savita was suspected by the family; that is what PW-3 stated in his second statement dated
11.02.1995. If that were correct, these details were allegedly obtained after 11.02.1995. This
contradicts the prosecution story about Savita’s conduct. Moreover, the prosecution evidence
is also that Savita left Manoj’s house in January, 1995. The second aspect is that PW-1,
Manoj’s mother, expressed unawareness of the jewellery and particulars looted. She stated
that the jewellery for Manoj’s marriage, and whatever was given to Savita, was bought by her
husband, PW-3. The latter mentioned that jewellery was purchased from R.R. Jewellers.
However, no evidence of that fact was led; no receipt or document was placed on the record,
and the prosecution also did not examine anyone from R.R. Jewellers. The third aspect is that
even though the jewellery is said to have been recovered in the second week of September,
1995, the prosecution got the test identification parade for the jewellery, done in November,
1995. No explanation for this delay has been given. The other significant aspect which the
Court cannot overlook is that even though the prosecution made no headway for about 10
months, once the arrests were made, all the missing items of jewellery were recovered. If
there indeed was a conspiracy to kill Manoj, and the theft of jewellery was to throw the
authorities off the scent, there was no reason for anyone, much less Ashutosh and Ravi
Chauhan, to keep the items of jewellery. One last point of discrepancy is that prosecution
witnesses, such as PW-18 and PW-1 have deposed that a video recording of the marriage
between Manoj and Savita existed. If that were seized and produced in evidence, it would
have settled the question whether the items of jewellery recovered were Savita’s. The
prosecution’s failure to produce it, also improbabilizes the recovery and identification of the
jewellery produced in Court, and relied as another incriminating circumstance.
77. PW-26 and PW-37 deposed having witnessed recovery of one knife each upon the
disclosure statements of Asutosh and the swami. These weapons were sent for forensic
examination; however, the report did not reveal anything incriminating against either
appellant. These weapons were also recovered pursuant to disclosure statements, and
witnessed only by the police. Now, even though the law is clear that there is no invariable
rule that recoveries should be testified by independent witnesses, what is noteworthy in this
case is that the investigation had reached a dead end, and clues were gathered 10 months
later. The places where recoveries of weapons effected, were not isolated. It was possible for
the prosecution, by way of precaution and as a prudent measure, to associate members of the
public, as witnesses to these recoveries. Not doing so has undermined the prosecution.
Crl.A.Nos. 786, 795, 919, 926/2001 Page 42
Further, it is not as if the swami and Asutosh had any previous history of violence or crime,
to keep weapons such as knives; the evidence also does not disclose any other reason for
them to keep these weapons, especially if they had committed the offence. It would have
been easiest for the swami to get rid of it, considering that Hardwar is on the banks of the
river Ganga. Similarly, if Asutosh a hired assassin, as the prosecution alleges, there was no
possible reason for him to hold on to the murder weapon.
78. For the above reasons, the Court is of opinion that the recovery and identification of
jewellery and recovery of the knives, relied upon by the prosecution, are neither proved
beyond reasonable doubt, nor is there anything especially incriminating in the manner shown
by the prosecution.
VI. Involvement of Ravi Chauhan and Asutosh
79. The earlier discussion of prosecution evidence has shown that apart from the
disclosure statement of the swami, and the alleged recovery of articles, there is nothing to
connect these two accused appellants, with the crime. For them to be involved on account of
statements made by the swami, they are to be admissible. What is admissible here is only
those portions of the statement, which led to the recoveries, and nothing more. That by itself,
in the absence of any other connecting evidence, admissible in law, cannot be the sole basis
for holding that they too were involved in the commission of the crime, in this case. In
Sunwat Khan (supra) the Supreme Court held as follows:
“Beaumont, C.J. and Sen, J. in Bhikha Gober v. Emperor 2 rightly held that the
mere fact that an accused produced shortly after the murder ornaments which
were on the murdered person is not enough to justify the inference that the
accused must have committed the murder. There must be some further material to
connect the accused with the murder in order to hold him guilty of that offence.
Our attention was drawn to a number of decisions which have been summed up in
a Bench decision of the Allahabad High Court in State v. Shankar Prasad 3 in
some of which a presumption was drawn of guilt from the circumstance of
possession of stolen articles soon after a murder. We have examined these cases
and it appears to us that each one of these decisions was given on the evidence
and circumstances established in that particular case, and no general proposition
of law can be deduced from them. In our judgment, no hard and fast rule can be
laid down as to what inference should be drawn from a certain circumstance.
Where, however, the only evidence against an accused person is the recovery of
stolen property and although the circumstances may indicate that the theft and the
murder must have been committed at the same time, it is not safe to draw the
inference that the person in possession of the stolen property was the murderer.
Suspicion cannot take the place of proof.”
In the present case too, there is no material on record to link these two accused with the
swami, or Savita; apart from the recoveries, no witness has spoken about their presence near
Crl.A.Nos. 786, 795, 919, 926/2001 Page 43
about the scene of crime, or its vicinity, at the relevant time. Therefore, it would be hazardous
for the Court to hold that they were linked with the other co accused, and were part of a
conspiracy to commit it.
VII. Conspiracy
80. The prosecution story is that conspiracy was hatched by Savita and the swami in the
end of November, of first two days of December, 1994, to kill Manoj. The only circumstance,
which has some contemporaneous nexus with this theory is the deposition of PW-13 who
stated that the swami had requested him, sometime in September, 1995, to tell the police a
false fact that he (the swami) visited PW-13 in November, 1995. The other circumstances are
that letters were written by the swami to Savita – two of them were recovered from her (those
letters not containing any incriminating material) and the third, from PW-21. These latter
facts are post event, i.e. post 02/03.12.1994.
81. The essence of the crime of conspiracy and the material a court can use, in the form of
statement of a co-accused, was summarized by the Supreme Court in Bhagwan Swarup Lal
Bishan Lal v. State of Maharashtra, (1964) 2 SCR 378, in the following words:
“Before dealing with the individual cases, as some argument was made in regard
to the nature of the evidence that should be adduced to sustain the case of
conspiracy, it will be convenient to make at this stage some observations thereon.
Section 120-A of the Indian Penal Code defines the offence of criminal conspiracy
thus:
“When two or more persons agree to do, or cause to be done an illegal act, or an
act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy.”
The essence of conspiracy is, therefore, that there should be an agreement
between persons to do one or other of the acts described in the section. The said
agreement may be proved by direct evidence or may be inferred from acts and
conduct of the parties. There is no difference between the mode of proof of the
offence of conspiracy and that of any other offence: it can be established by direct
evidence or by circumstantial evidence. But Section 10 of the Evidence Act
introduces the doctrine of agency and if the conditions laid down therein are
satisfied, the act done by one is admissible against the co-conspirators. The said
section reads:
“Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything said,
done or written by any one of such persons in reference to their common
intention, after the time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed to be so conspiring
as well for the purpose of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it.”
Crl.A.Nos. 786, 795, 919, 926/2001 Page 44
This section, as the opening words indicate, will come into play only when the
Court is satisfied that there is reasonable ground to believe that two or more
persons have conspired together to commit an offence or an actionable wrong,
that is to say, there should be a prima facie evidence that a person was a party to
the conspiracy before his acts can be used against his co-conspirators. Once such
a reasonable ground exists, anything said, done or written by one of the
conspirators in reference to the common intention, after the said intention was
entertained, is relevant against the others, not only for the purpose of proving the
existence of the conspiracy but also for proving that the other person was a party
to it. The evidentiary value of the said acts is limited by two circumstances,
namely, that the acts shall be in reference to their common intention and in
respect of a period after such intention was entertained by any one of them.”
82. It is also settled authority (Mirza Akbar v. King Emperor, AIR 1940 PC 176 and
Caveeshar (supra)) that the phraseology in Section 10, Evidence Act, is not capable of being
widely construed. Where the charge specifies the period of conspiracy, evidence of acts of
co-conspirators outside the period is not receivable in evidence. Here, the prosecution has
relied mostly on acts of the appellants after the incident, i.e. the killing of Manoj. Such facts
are not considered as proof of such conspiracy, and certainly not sufficient to implicate any
accused on the sole charge of conspiracy. Furthermore, to establish conspiracy beyond
reasonable doubt, there has to be objective evidence, linking accused with each other, as well
as the recoveries said to have been recovered. The recovery of objects, in this case, without
the necessary linkage between the co-accused, between each other, and the articles, therefore,
does not amount to acceptable proof of a conspiracy. There is also no statement of any one
accused, admissible, in law, which can implicate the others on the theory of agency. For these
reasons, the prosecution has not proved the conspiracy beyond reasonable doubt.
Conclusions
83. As noticed in more than one place during this judgement, the prosecution relies on
circumstantial evidence to establish the charge in this case. Contrary to the trial court’s
conclusions, the facts and materials brought on record during the trial are insufficient to hold
that each of them was proved beyond reasonable doubt. Nor has each circumstance been
proved on application of the exacting standard of proof, i.e. beyond reasonable doubt. The
prosecution has also not established a conclusive link connecting each individual
circumstance with the other, and all the appellants. The materials placed on the record in the
form of letters, and some evidence about Savita and the swami’s meetings, raise suspicions
about their conduct. Their relationship – not being a spiritual one, but a more earthly one, of
lovers, can be arguably be inferred. However, the materials and evidence on the record do not
Crl.A.Nos. 786, 795, 919, 926/2001 Page 45
bridge the gap between “may be true” and “must be true” so essential for a court to cross,
while finding the guilt of an accused, particularly in cases based on circumstantial evidence.
84. For the above reasons this Court is of opinion that the charges were not proved
beyond reasonable doubt. All the appeals are, therefore, entitled to succeed; they are
accordingly allowed. The bail bonds and surety bonds furnished by the appellants or on their
behalf are therefore cancelled. Criminal Appeals being CRL.A. 786/2001, CRL.A. 795/2001,
Crl.A.919/2001 and Crl.A.926/2001 are therefore, allowed.
(S.RAVINDRA BHAT)
JUDGE
(G.P. MITTAL)
APRIL 28, 2011 JUDGE
Crl.A.Nos. 786, 795, 919, 926/2001 Page 46