Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. Recovery rriemo was prepared by Raj Kumar, ASI in presence of two witnesses namely Dalip (PW.11) and Sudesh (PW. 7). In the same it is said following articles were seized from the spot:- one hand written note authored by deceased Vijay, on the cover of the match box, two separate bottles, one containing water and another containing little liquor, one steel glass with name of Rampat ingraved. Earth containing white powder said to be. poisonous substance was also collected. [2010) 7 S.C.R. A They all were sealed in different parcels and taken intopolice custody.
13. Translated copy of Ext.PG, dying declaration has been filed. The exact Hindi version written by him in the slip reads as thus: "''Daru ke sath Sulphas pila rahe hai. Marenge." (underlining by us) The said Inquest Report was prepared at the spot. In the site plan prepared there, neither recovery of pocket telephone directory nor recovery of pen was made. The statements of witnesses were recorded.
14. As mentioned hereinabove, initially Raj Kumar, ASI D (now dead) did not find commission of any cognizable offence, thus he dropped the proceedings. Only after registration of the FIR on 6/3/2004, ·the criminal machinery was set into motion.
15. Post-mortem on the dead body of the deceased Vijay · E was performed by PW.4 Dr. Kuldeep Singh. Post-Mortem Report is marked as Ext.PD. Doctor has opined that deceased was aged about 32 years, well built, having a height of about 5' 6", appears tobe more appropriate than what was mentioned in the Inquest. He has further categorically recorded that on the dead body no bruises or wounds were found. Bladder and F stomach both were found to be empty. The time of death was shown to be 36 hours prior to performing of post mortem. The cause of death was shown to be excessive drinking of alcohol with poisonous substance. On the strength of FSL report (Ext.P .1 ), poisonous substance was found to be aluminium G phosphide. According to the doctor, consumption of excessive alcohol coupled with poisonous substance was sufficient to cause death in ordinary course of nature.
16. From the post-mortem report Exh. PE as also from the deposition of Dr. Kuldeep Singh-PW.4, either deceased had A met with homicidal death or committed suicide.
17. Now the question that crops up for consideration before us is whether it was the act of the aforesaid five appellants, on account of which he met with the homicidal death or it was Vijay himself, with an intention to save his status and glory in the society, had consumed poisonous substance, thereby committed suicide.
18. Prosecution in all had examined 12 witnesses on its behalf, to bring home the charges levelled against the C appellaots. The accused had generally denied the charges levelled against them and submitted that Vijay had committed suicide, on account of his misdeeds. They pleaded innocence. They deposed that they have falsely been roped in by th.e prosecution on the strength of manufactured and engineered D documents. The appellants did not lead any evidence on their behalf.
19. On appreciation of evidence available on record, learned Trial Judge found them guilty for commission of E offences under Sections 302/149 of the IPC and awarded them sentences as mentioned hereinabove. The appeal filed by them in the High Court of Punjab and Haryana was dismissed and the findings recorded by the Trial Court were affirmed and the judgment and order of conviction of the Trial Court was maintained. Hence these appeals.
20. We have accordingly heard learned senior counsel Mr. S.K: Dubey with Ms. Mrinamayee Sahu and Sh. Ajay Beer Singh for the appellants and Mr. Kamal Mohan Gupta, learned counsel for the respondent and perused the re~ord. Evidence G adduced have also been critically and microscopically gone · through by us.
21. Sheet anchor of the prosecution story has been the alleged dying declaration Exh. PG said to ha~ been written by deceased Vijay, on the inside paper of a match box. English translation thereof reads thus: c Rajbir Singh S/o Bhuru Rampat S/o Ruppa Binder Nanhar are drinking liquor by mixing the Sulphas and would kill. It was written in vernacular language and in Hindi, as mentioned earlier, reads as under: "Daru ke sath Sulphas pila rahe hai. Marenge."
22. The aforesaid dying declaration has been found to be sufficient by the tv.io courts below and appellants have been found guilty for commission of offences under Sections 302/ 149 of the l.P.C. and have been awarded sentence as mentioned hereinabove.
23. Whether the same would fall in the category of dying declaration and if so, if it was sufficient to uphold the conviction and sentence·. awarded to them on the strength thereof, is required to be examined by us.
24. After critically going through the documents, not only Exh. PG but also the oral and other documentary evidence available on record, we find the following lacunae, shortcoming, lapses and deficiencies in the prosecution story: (i) the said dying declaration has not been signed by deceased Vijay. (ii) If the appellants were really present when the said dying declaration was said to have been written, then obviously they would not have allowed him to write the said dying declaration. No recovery of pen was made from the site or from the person of the the deceased. · (iv) There is nothing either in the site plan or in the recovery memo to suggest that the deceased was able to get any platform on which he could have written the said dying declaration. (v) The inner pocket of the match box together with match sticks was not at all recovered. (vi) It is not established by the prosecution that the . c deceased was a smoker of bidi or cigarette.
No butts or bidis were recovered from the place of.occurrence. (vii) As per the post-mortem report performed on 25.2.2004, the death had occurred within 36 hours from the time of performing of the post-mortem, meaning thereby that the incident must have taken place some time / in the night. (viii) There is nothing on record to show availability of electricity or any source of light at the spot. (ix) In the Inquest Report prepared by ASI Raj Kumar (now dead), there is no mention with regard to the recovery of the dying declaration Exh. PG or recovery of pocket. index telephone directory. (x) Similarly, .in the site plan prepared on the spot, there is no mention with regard to the recovery of dying declaration, pen or pocket diary from the place of occurrence or from the body of the deceased. (xi) No finger prints either of the deceased or of the accused were taken, even though the same were. available.
(xii) Report of the Chemical Examiner dated c 6.10.2004 shows that the packets were received by him only on 10.3.2004 but no remnants of poisonous substance were found either in the two bottles or in the steer glass but were found only in the earth so collected from the place of occurrence. The poisonous substance has been described as Aluminium Phosphide. (xiii) Except for the evidence of PW-7 Sudesh, PW- 8 Ramesh, PW-9 Kartar Singh, PW-11 Dalip, who all happened to be closely related to the deceased, evidence of an independent witness was not recorded, even though there is evidence available to show that many villagers were available. (xiv) The evidence of PW-7 Sudesh and PW-11 Dalip is highly contradictory inasmuch as Sudesh has not deposed anything with regard to recovery of pocket index telephone diary from the person of the deceased; whereas Dalip has categorically deposed with regard to recovery of pocket index telephone diary from his possession.
It is pertinent to mention here that PW-7 Sudesh and PW- 11 Dalip are the witnesses to the recovery memo said to have been prepared by ASI Raj Kumar who is said to have died during the pendency of the sessions trial, also does not record its recovery. (xv) It is extremely difficult to comprehend if the deceased was in a position to write the dying declaration, more so, after having consumed excessive amount of Alcohol mixed with poisonous substance. Fact of excessive amount of Alcohol mixed with poison stands proved from the evidence of PW-4 Dr. Kuldeep Singh, who had performed post-mortem(Exh. PD) on the person of the deceased. (xvi) The post-moretm report further reveals that the deceased was aged about 32 years having a height of 5 feet 6 inches with a robust body. It is inconceivable to believe that if the appellants would have tried to administer him Alcohol mixed with poisonous substance, he would not have resisted to the same or at least would not have made any hue and cry. ~t also stands proved from the evidence of PW-4 Dr. Kuldeep Singh and the post-mortem report that no bruises and external injuries were found on the person of the deceased.
(xvii) No explanation has been offered by the prosecution as to why the blank pages of the pocket index telephone diary were not used to scribe it, if the same had been recovered from his possession. (xviii) The doctrine of motiv,e could not be established by the prosecution at all. Thusfanother ground of holding· them guilty on account of motive, completely shatte.rs the prosecution story and falls flat. (xix) It could not be established that dying declaration and pocket index telephone diary belonged to the deceased only. This aspect of the matter has not been established by the prosecution. (xx) Even if it stood established from the opinion of the Handwriting Expert that dying declaration and pocket index telephone diary were in the same hand, still it could not be established that it belonged to the deceased only. (xxi) Possibility of implanting of these documents cannot be ruled out. (xxii) The said dying declaration does not inspire confidence, much less to hold the appellants guilty for commission of the said offence.
25. In fact, the salient features noted above with regard to the deficiencies ·are sufficient, in our considered opinion, to come to the conclusion that the Courts below committed grave (2010] 7 S.C.R. A error in holding the appellants guilty for commission of offence under Sections 302/149 of the l.P.C. But with intention to fortify our views, we would like to reiterate what this Court has already held in its earlier leading 8 judgments.
26. Almost 25 years back, this Court in celebrated judgment in Sharad Birdhichand Sarda vs. State of Maharashtra, reported in 1984 (4) SCC 116, held in paragraph 151 and 161 thereof that it is well settled law that the C prosecution must stand or fall on its own legs and it cannot derive any strength form the weaknesses of the defence. For ready reference, the said paragraphs are reproduced hereunder: "151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete than a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court. 161. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the· essential principles laid down in Hanumant's case, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General."
27. Similarly, when the case is based on circumstantial evidence, it has now been well settled by several authorities of this Court that the chain of circumstances should be complete in all respect and the pointer of guilt should continuously be on the accused only. Any deviation of the pointer of guilt on the accused would enure him the benefit of doubt.
28. No doubt it is true that ASI Raj Kumar, who had prepared the Inquest Report had died during the pendency of o the trial, but no reasons have been assigned as to why other police personnel present along with ASI Raj Kumar, were not · examined. They could have at least explained the true picture and proved recovery of dying declaration and pocket telephone index diary from possession of deceased Vijay.
29. Admittedly, from the evidence of PW-7 Sudesh, it has come on record that the deceased Vijay was having bank account and he was also a member of some society, where his standard signatures were available. But those standard signatures were not made the basis for comparison of his hand- writing alleged to have been found from his possession. In the case of Sharad Birdhichand Sarda (supra), it has been dealt with elaborately as to how the chain of circumstantial evidence has to be complete in all respect The relevant paragraphs 153 & 154 are reproduced herein below: "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: c [2010) 7 S.C.R. (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 Sahabrao Bobade & Anr. v. State of Maharashtra(') 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 shollld be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and 164 (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
30. The aforesaid cardinal principles with regard to the completion of chain of circumstantial evidence for holding the appellants guilty could not be established at all by the H prosecution in the present case. With such broken chain of circumstantial evidence, at many places, it would neither be safe nor prudent to hold the appellants guilty.
31. Apart from the above, it is extremely difficult for us to come to the conclusion if Exh. PG can fall in the category of dying declaration at all or can be said to be legally admissible. Even though we have categorically, minutely and with microscopic eyes gone through the said document number of times, but it does not inspire confidence, more so, the manner in which it has been written. We have already mentioned hereinabove that after having consumed excessive liquor, it would not have been possible for any one, much less for Vijay, to have written the said dying declaration with so much of precision or with steady hand. In our considered opinion, dying declaration should be such.which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. It should not be the result of tutoring. But dying declaration in the present case does not fulfill these conditions.
32. In HWV Cox Medical Jurisprudence and Toxicology, Seventh Edition, at page 936, under title "Alcohols", deals with handwriting after consumption of liquor. While coming to the general behaviour after excessive drinking, apart from other things, it has specifically been noted: "Character of hand- writing: There is often difficulty with letters, N, Mand W."
33. In the same book, it is further described that blood reaches all the organs, mainly the brain and interferes with normal brain functions like judgment and coordination of muscular movements. The blood alcohol level influences the behaviour of the person. The amount of alcohol present in the stomach and intestine has no effect but only indicates the ingestion.
34. Obviously, it would go to show and we also come to A the conclusion that after going through the handwriting, as has been found by us in the allegeddying declaration Ext. PG, it would have been extremely difficult for him to write it as he could not have been in a mentally fit condition to have written the same.
35. Unfortunately, this aspect of the matter has neither been considered by the learned Trial Judge nor has been adverted to by the Division Bench of the High court and yet the appellants have been found guilty for commission of the aforesaid offence.
36. In our considered opinion, the said judgment and order of conviction passed by the Trial Court and upheld by the High Court, cannot be sustained in law. They are accordingly set aside and quashed. As a necessary consequence thereof, the appellants would be set at liberty forthwith, if not required in D connection with any other criminal case. Both the appeals are allowed accordingly. D.G. Appeals allowed.