Y. K. Sabharwal ( 1 ) THE appellant Vinod Kumar has been convicted of offence under Section 302 Indian Penal Code for the murder of his wife Meera and sentenced to imprisonment for life. ( 2 ) THERE are no eye witnesses of the incident. The case is based entirely on circumstancial evidence. ( 3 ) VINOD and Meera were married in the year 1983. They were living as tenants in the house of Dharam Singh. Both were working. Meera was working with Vikram Overseas Pvt. Ltd. and Vinod at a garment factory of Shiv Dayal. It is alleged that on 4th May, 1987 at about 8. 30 p. m. Vinod went to the factory where Meera was working and brought her home. At about 10 p. m. Dharam Singh saw Vinod sitting on a Cot in his room in the darkness and learning that electric connection was out of order, asked Vinod to take a diya or candle from him but he did not take anything. Vinod went to his factory at about 12 mid night after killing his wife and remained there till next morning. On 5th May, 1987 at about 8 a. m. Vinod raised an alarm and asked the neighbours to see as to what had happened to his wife. The alarm attracted the neighbours and Dharam Singh his 698 landlord. Vinod did not call any Doctor nor made attempts to call the police. Someone else informed the police. Vinod also went to his employer Shiv Dayal and told him that his wife has been bitten by snake and had died. On request of Vinod Shiv Dayal cleared his accounts after making the payments. Sub-Inspector Ram Pal Singh reached the house and found the body of Meera lying on a cot and on the body some neem leaves had also been put. No injury was visible except finger tip of the right middle finger was found cut with blade. The dead body was sent for post-martem to All India Institute of Medical Science and after collection of the post-martem report, case under Section 302 Indian Penal Code was registered on 20th May, 1987 and the Vinod was arrested. No injury was visible except finger tip of the right middle finger was found cut with blade. The dead body was sent for post-martem to All India Institute of Medical Science and after collection of the post-martem report, case under Section 302 Indian Penal Code was registered on 20th May, 1987 and the Vinod was arrested. ( 4 ) APART from the examination of police officials the prosecution examined PW-1 Girija Shanker Pandey, Supervisor working in M/s. Vikram Overseas Pvt. Ltd. where Meera was working, Dharam Singh, PW-2 being landlord of Vinod, Shiv Dayal,pw-3 in whose garment factory Vinod was working and PW-11 Sub-Inspector Ram Pal Singh Investigating Officer of the case. In defence the accused examined Santosh Kumar, DW-1, brother of the deceased Meera. ( 5 ) THE disclosure statement of the accused Exhibit PW-8 / C was also recorded. The same was, however, not taken into consideration against Vinod for his conviction as no recovery was made after recording of the disclosure statement. It was rightly held to be not admissible. The circumstances on the basis of which Vinod was convicted by learned Additional Sessions Judge are these: 1. The accused brought the deceased Smt. Meera from the Vikram Overseas Pvt. Ltd. at about 8. 30 p. m. 2. At about 10 p. m. accused was found sitting on the Cot in darkness in his room and despite asking by Dharam Singh he did not lit "diya" or Candle. 3. At about 12 p. m. he went again to the factory and stayed there at night upto 8 a. m. without being on duty there. 4. The accused went to his house at about 8 a. m. on 5th May, 1988 and raised alarm that his wife has been bitten by snake in the presence of neighbours. 5. He did not call any Doctor Jior did he try to see the body of the deceased to find out, as to what had happened to her. 6. He went to his employer Shiv Dayal, told him that his wife had been bitten by a snake and she died and got his account cleared showing his intention to leave the place. 7. He himself did not lodge any report with the police. ( 6 ) THE legal principles for basing conviction on circumstantial evidence are well settled inseries of decisions of High Courts and the Apex Court. 7. He himself did not lodge any report with the police. ( 6 ) THE legal principles for basing conviction on circumstantial evidence are well settled inseries of decisions of High Courts and the Apex Court. Acase which rests upon circumstantial evidence, the circumstances from which inference of guilt is to be drawn must be cogently and firmly established; the circumstance should be of a definite tendency unerringly pointing towards guilt of the accused; the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was 699 committed by the accused and none else and the circumstancial evidence in order to sustain conviction must be complete and incapable of explanation-of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Bearing in mind these principles we have to examine whether the circumstances on the basis of which Vinod has been convicted have been firmly established and whether the circumstances are consistent with the guilt of the appellant and inconsistent with his innocence. ( 7 ) WE are unable to agree with the finding of learned Additional Sessions Judge that the first circumstance has been proved against Vinod. The evidence of PW-1 Girija Shanker Pandey has not been correctly appreciated and marshalled. The muster roll Exhibit PW-1/b had not been proved and learned Additional Sessions Judge also says so. The first circumstance has been held to be proved by Additional Sessions Judge on the premise that in a factory where there were only 7/8 persons working and one person was about to leave, in the ordinary circumstances the Supervisor was supposed to know that fact. If PW-I/b which has been rightly held by the Trial Court to have not been proved is kept out of consideration, there would be no evidence to establish that 7/8 persons were working in the factory. Ex. PW-l/b had not been proved and thus on the basis of this document it could not be held that 7/8 persons were working in the factory where Meera was working. There is no other evidence on record to prove this fact. This finding is, therefore, not supported by any evidence. Ex. PW-l/b had not been proved and thus on the basis of this document it could not be held that 7/8 persons were working in the factory where Meera was working. There is no other evidence on record to prove this fact. This finding is, therefore, not supported by any evidence. PW-I had feigned ignorance about the person who had filled up the muster roll. PW-I had not himself noted departure of Meera. He did not know what time she left. That apart the fact whether Vinod had brought Meera from her factory by itself is not a incriminating circumstance. ( 8 ) THE second circumstance, namely, the inference drawn on account of Vinod not taking a candle while the electricity was out of order is again by itself is inconsequential to prove his guilt. Neither PW-2 Dharam Singh says nor there is any other evidence on record to establish that when Vinod did not accept the offer of Dharam Singh to take Candle at 10 p. m. on 4th May, 1987, Meera was with him. PW-2 does not say that Meera was with Vinod at that point of time. In such matters the approach that the witness had no enmity to depose against the accused and on that ground alone, accept the testimony is not legal and has to be depricated. ( 9 ) THE learned Additional Sessions Judge, it seems, was not certain whether the third circumstance that at about 12 mid night Vinod went to his factory and stayed there upto 8 a. m. of the next day without any duty, had been established or not. The finding of learned Additional Sessions Judge in this regard is based purely on conjecture. The learned Additional Sessions Judge says "whether he had gone there or not, both ways it was incriminating". We fail to understand this approach as to how going of Vinod to his factory or not going both ways would be incriminating. On the facts and circumstances of the case, the Court was required to give a definite finding instead of observing that both ways it was incriminating. We may notice that PW-3 Shiv Dayal had not seen Vinod in the factory at any time between 12midnightand8a. m. of the next date. PW-3admitted that his statement was based on what was told to him by his workers. No worker was examined. We may notice that PW-3 Shiv Dayal had not seen Vinod in the factory at any time between 12midnightand8a. m. of the next date. PW-3admitted that his statement was based on what was told to him by his workers. No worker was examined. In this view ofthe matter how it could be expected of Vinod to get it clarified from PW- 700 3 as to whether he was there on duty or not. Learned Additional Sessions Judge was not right in holding that Vinod ought to have clarified it from PW-3. Further if reliance had to be placed on a particular answer given by Vinod in statement under Section 313 Cr. P. C. , the answer had to be taken into consideration as a whole and not in the piecemeal manner in which it was considered by the Trial Court. ( 10 ) REGARDING 4th circumstance, learned Additional Sessions Judge has held that Vinod wanted to make out a case of snake bite which was totally negatived by the medical evidence on record. For reaching this finding reference has been made to statement of PW-2 Dharam Singh. PW-2 has not deposed that the Vinod stated that Meera died because of snake bite. According to PW-2 on alarm being raised by Vinod as to what had happened to Meera ladies of the neighbours doubted that Meera might have died because of snake bite and neem leaves were put by them on the body. There is no credible evidence on record to establish that Vinod wanted to make out a case of snake bite. The finding of learned Additional Sessions Judge that the accused must have seen her body as to find out what had happened to Meera is again not based on any evidence. Even the police officials did not find any external injuries on the body of Meera. There is no evidence to prove the fourth circumstance. With regard to 5th, 6th and 7th circumstance it is sufficient to state that, if on learning that Meera had died, the convict went to his factory for making arrangements for money that by itself cannot be taken as a circumstance conclu- sively pointing towards his guilt. There is no evidence to prove the fourth circumstance. With regard to 5th, 6th and 7th circumstance it is sufficient to state that, if on learning that Meera had died, the convict went to his factory for making arrangements for money that by itself cannot be taken as a circumstance conclu- sively pointing towards his guilt. Since it was Vinod who had raised the alarm on seeing that something had happened to his wife Meera, the circumstance that he did riot inform the police or someone else informed the police looses much of significance. ( 11 ) IT seems that leaned Additional Sessions Judge also took into consideration the circumstance of last seen together for convicting Vinod by holding that Meera was last seen alive at about 8. 30 p. m. on 4th May, 1987bypw-l with Vinod. As already noticed hereinbefore this circumstance has not been established from evidence on record. ( 12 ) THE prosecution initially seems to have come up with the motive that Vinod was suspecting fidelity of his wife and that was the reason for his murdering his wife. The learned Additional Sessions Judge after noticing that the absence of motive in such like cases is important, proceeded to convict the appellant holding that motive is not so much important that the prosecution case should be thrown out if all the circumstances lead to one irresistible conclusion that the accused killed his wife. We do not think that the circumstance lead to only that conclusion. In a case like this which rests solely on circumstantial evidence, when almost all circumstances have not been established beyond reasonable doubt, the absence of proof of motive would be an additional factor to be taken into consideration in favour of the accused. It may also be noticed that according to PW-2 who was landlord of Vinod no quarrel between husband and wife ever came to his notice. Appellant had also examined Santosh Kumar DW-1, brother of deceased who had stated that he had last visited his sister and brother-in-law two or four days prior to her death but Meera never complained of ill-treatment by Vinod. ( 13 ) , Before parting we may note that the disclosure statement Exhibit PW-8/ 6 which was rightly held to be not admissible, showed that Vinod was suspecting 701 that his wife had some relations with one Rajesh. ( 13 ) , Before parting we may note that the disclosure statement Exhibit PW-8/ 6 which was rightly held to be not admissible, showed that Vinod was suspecting 701 that his wife had some relations with one Rajesh. The prosecution did not investigate the case from that angle at all. Further it is clear that the investigation was done in most perfunctory manner right from the very beginning. The postmortem had been conducted on 7th May, 1987 but it took Investigating Officer 13 days to collect the report and after the collection of post-mortem report, case was registered on 20th May, 1987. The Investigating Officer did not even bother to take any finger print etc. According to PW-2, statement of a neighbour Ram Chander was also recorded. Prosecution, however, opted not to examine him. We have not been informed whether Ram Chander was cited as a prosecution witness or not. If the investigation had been properly conducted soon after the death of Meera, we think it would not have been difficult to look the real accused of the crime. ( 14 ) THE conduct of the accused may not be up to the mark but on that score alone he cannot be convicted. The needle of suspicion may point towards the appellant but in criminal matters it is well settled that the conviction cannot be based on mere suspicion. We may only say what has been often said "fouler the crime higher the proof" In the present case what to talk of higher proof, there is no proof worth the hame. In our view the circumstances taken cumulatively do not form a complete chain to reach irresistible conclusion that within all human probability the crime must have been committed by Vinod and none else and thus he deserves to be acquitted. We may also place on record our appreciation for the able assistance rendered by Sh. V. K. Shali, Advocate, who appeared as amicus curiae for the appellant. For the aforesaid reasons, the conviction and consequent sentence of the appellant is set aside and the appeal is accordingly allowed. The appellant shall be set free forthwith, if not required in any other case. Appeal allowed. 54 (1994) DELHI LAW TIMES 701 DELHI HIGH COURT Present: Mr. V. K. Shali, Advocate, who appeared as amicus curiae for the appellant. For the aforesaid reasons, the conviction and consequent sentence of the appellant is set aside and the appeal is accordingly allowed. The appellant shall be set free forthwith, if not required in any other case. Appeal allowed. 54 (1994) DELHI LAW TIMES 701 DELHI HIGH COURT Present: Mr. K. Shivshankarbhat, J. CHOPRA DYEING INDUSTRIES -Petitioner versus DELHI DEVELOPMENT AUTHORITY -Respondent C. W. P. No. 100/89, 3001/89, 989/92, 454/89, 425/90, 1806/88, 1552/89, 1526/89, 164/89, 2524/89, 209/89, 299/89, 2528/89, 2623/89, 2562/89, 2566/88, 1554/89, 1907/89, 3175/89, 3318/89, 3564/89, 3572/89, 741/89, 460/91 and 684 of 1988-Decided on 27. 5. 1994 (i) Local Commercial Licence/laldora - Industry in the non-conforming area allotment of alternative plots by the respondent - Application, rejected because there was no Municipal licence - Having only "local commercial licence" -And existing in "lal Dora" -Neither the scheme nor the application