# SANTOSH @ BHURE v. STATE (G.N.C.T.) OF DELHI

- **Citation:** [2023] 7 S.C.R. 719
- **Court:** Supreme Court of India
- **Decided:** 2023-04-28
- **Case number:** Criminal Appeal No.575 of 2011
- **Bench:** Sanjay Kishan Kaul, Manoj Misra, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/santosh-bhure-v-state-g-n-c-t-of-delhi-37495
- **Pages:** 53

## Headnote

Penal Code, 1860 - s. 302 r/w. s.34 - Acquittal under -
Prosecution case that 'S' was tenant of an apartment on the second
floor of a building owned by PW-3 - On 12.09.2000, at about 10.40
a.m., an information was given to the police that a dead body is
lying in that apartment - As per prosecution, two disclosure/
confessional statements were made by each of the two accused ('S'
and 'N') during police custody - Trial Court held that the proven
circumstances constituted a chain which conclusively indicated that
the accused 'S' in the company of co-accused 'N' committed the
crime and to remove the evidence hid the dagger and the bloodstained clothes and further, to hoodwink the police, 'N' wrote and
planted a suicide letter in a pocket of the trouser worn by the
deceased - Both the accused were convicted u/ss. 302 r/w. s. 34 -
High Court acquitted 'N', however, S's conviction was upheld - On
appeal, held: Mere tenancy of the apartment being with 'S' by itself
is not sufficient to hold him guilty as there is no general presumption
against the owner/tenant of a property with regard to his/her guilt
if a dead body with homicidal injuries is found in his/her property
- Prosecution failed to lead any evidence that the two accused, or
any one of them, were present there, or in the vicinity - There is no
witness statement identifying the handwriting of accused 'N' or
disclosing that accused wrote the suicide letter in his presence -
There is also no evidence to explain the relevance of the contents of
the suicide letter - Suicide letter indicts one person 'C'- As to why
such indictment was made; whether it was with reference to some
other event contemplated, the prosecution evidence is silent -
Barring the expert report, there exists no internal or external
evidence to lend assurance to the prosecution story that the suicide
letter was written by accused 'N' - As regards recovery of clothes at
the instance of 'S', PW4, a witness to that recovery, has been
A
B
C
D
E
F
G
H
720
SUPREME COURT REPORTS
[2023] 7 S.C.R.
declared hostile - There is thus no support to that recovery from
any public witness - The circumstance that the clothes carried blood
of same group as of the deceased is rendered meaningless because
there is no admissible evidence to connect the clothes with the two
accused - As regards recovery of knife at the instance of 'N', the
same has been denied by 'N' and there appears no independent
witness to support it - Its incriminating value is extremely limited
because, firstly, there is no forensic evidence connecting the knife
with the crime; secondly, the knife is a common knife which could
easily be available; thirdly, the wounds found on the body of the
deceased were of different dimensions giving rise to possibility of
use of more weapon than one; and, fourthly, the entire exercise of
recovery does not inspire confidence, particularly, because the first
attempt to recover had failed - Thus, the prosecution failed to prove
a chain of incriminating circumstances as to conclusively point out
that in all human probability it was the two accused or any one of
them, and no one else, who had committed the murder.
Evidence - Circumstantial Evidence - Conviction on strength
of evidence which are circumstantial in nature - Settled legal
position - The circumstances from which the conclusion of guilt is
to be drawn should be fully established - Also, circumstances should
be of a definite tendency unerringly pointing towards the guilt of
the accused - Further, the circumstances taken cumulatively should
form a chain so far complete that there is no escape from the
conclusion that within all human probability the crime was committed
by the accused and the circumstances should be consistent only
with the hypothesis regarding the guilt of the accused and they must
exclude every possible hypothesis except the one to be proved -
The circumstances from which the conclusion of guilt is to be drawn
should be fully established meaning thereby

## Text

_Characters 0–39,904 of 123,369. This is a partial read: ask again with offset=39904 for what follows._

A
B
C
D
E
F
G
H
719
 [2023] 7 S.C.R. 719
719
SANTOSH @ BHURE
v.
STATE (G.N.C.T.) OF DELHI
(Criminal Appeal No.575 of 2011)
APRIL 28, 2023
[SANJAY KISHAN KAUL, MANOJ MISRA AND
ARAVIND KUMAR, JJ.]
Penal Code, 1860 - s. 302 r/w. s.34 - Acquittal under -
Prosecution case that 'S' was tenant of an apartment on the second
floor of a building owned by PW-3 - On 12.09.2000, at about 10.40
a.m., an information was given to the police that a dead body is
lying in that apartment - As per prosecution, two disclosure/
confessional statements were made by each of the two accused ('S'
and 'N') during police custody - Trial Court held that the proven
circumstances constituted a chain which conclusively indicated that
the accused 'S' in the company of co-accused 'N' committed the
crime and to remove the evidence hid the dagger and the bloodstained clothes and further, to hoodwink the police, 'N' wrote and
planted a suicide letter in a pocket of the trouser worn by the
deceased - Both the accused were convicted u/ss. 302 r/w. s. 34 -
High Court acquitted 'N', however, S's conviction was upheld - On
appeal, held: Mere tenancy of the apartment being with 'S' by itself
is not sufficient to hold him guilty as there is no general presumption
against the owner/tenant of a property with regard to his/her guilt
if a dead body with homicidal injuries is found in his/her property
- Prosecution failed to lead any evidence that the two accused, or
any one of them, were present there, or in the vicinity - There is no
witness statement identifying the handwriting of accused 'N' or
disclosing that accused wrote the suicide letter in his presence -
There is also no evidence to explain the relevance of the contents of
the suicide letter - Suicide letter indicts one person 'C'- As to why
such indictment was made; whether it was with reference to some
other event contemplated, the prosecution evidence is silent -
Barring the expert report, there exists no internal or external
evidence to lend assurance to the prosecution story that the suicide
letter was written by accused 'N' - As regards recovery of clothes at
the instance of 'S', PW4, a witness to that recovery, has been
A
B
C
D
E
F
G
H
720
SUPREME COURT REPORTS
[2023] 7 S.C.R.
declared hostile - There is thus no support to that recovery from
any public witness - The circumstance that the clothes carried blood
of same group as of the deceased is rendered meaningless because
there is no admissible evidence to connect the clothes with the two
accused - As regards recovery of knife at the instance of 'N', the
same has been denied by 'N' and there appears no independent
witness to support it - Its incriminating value is extremely limited
because, firstly, there is no forensic evidence connecting the knife
with the crime; secondly, the knife is a common knife which could
easily be available; thirdly, the wounds found on the body of the
deceased were of different dimensions giving rise to possibility of
use of more weapon than one; and, fourthly, the entire exercise of
recovery does not inspire confidence, particularly, because the first
attempt to recover had failed - Thus, the prosecution failed to prove
a chain of incriminating circumstances as to conclusively point out
that in all human probability it was the two accused or any one of
them, and no one else, who had committed the murder.
Evidence - Circumstantial Evidence - Conviction on strength
of evidence which are circumstantial in nature - Settled legal
position - The circumstances from which the conclusion of guilt is
to be drawn should be fully established - Also, circumstances should
be of a definite tendency unerringly pointing towards the guilt of
the accused - Further, the circumstances taken cumulatively should
form a chain so far complete that there is no escape from the
conclusion that within all human probability the crime was committed
by the accused and the circumstances should be consistent only
with the hypothesis regarding the guilt of the accused and they must
exclude every possible hypothesis except the one to be proved -
The circumstances from which the conclusion of guilt is to be drawn
should be fully established meaning thereby that they 'must' or
'should' and not 'may be' established as the Court must not be
oblivious of the most fundamental principle of criminal
jurisprudence, which is, that the accused 'must be' and not merely
'may be' guilty before the Court proceeds to convict him.
Indian Evidence Act, 1872 - s. 106 - Burden of proof under
it upon the accused - Legal position - It is settled that s. 106 of the
Evidence Act does not absolve the prosecution of discharging its
primary burden of proving the prosecution case beyond reasonable
A
B
C
D
E
F
G
H
721
doubt - It is only when the prosecution has led evidence which, if
believed, will sustain a conviction, or which makes out a prima
facie case, that the question arises of considering facts of which
the burden of proof would lie upon the accused.
Code of Criminal Procedure, 1973 - s. 311-A - Law therein
and its prospective application - By Act No.25 of 2005, with effect
from 23.06.2006, Section 311-A has been inserted in the Code
thereby empowering a Magistrate of the First Class to direct any
person including an accused to give specimen signature or
handwriting for the purposes of investigation but this provision
would have no bearing on the case instant case as it is of the year
2000.
Indian Evidence Act, 1872 - s. 73 - Scope - The provisions
of S. 73 apply when a proceeding such as an inquiry or trial is
pending in a Court - In the instant case, since no proceedings were
pending before any Court when the specimens in question were
obtained, provisions of s.73 could not have been invoked.
Indian Evidence Act, 1872 - s. 45 - Handwriting Expert -
Admissibility - Scope - It is not impermissible to base a finding with
regard to authorship of a document solely on the opinion of a
handwriting expert but, as a rule of prudence, because of imperfect
nature of the science of identification of handwriting and its
accepted fallibility, such opinion has to be relied with caution and
may be accepted if, on its own assessment, the Court is satisfied
that the internal and external evidence relating to the document in
question supports the opinion of the expert and it is safe to accept
his opinion.
Disposing of the appeals, the Court
HELD: Circumstance - Apartment from where the dead
body was found stood in the tenancy and possession of accused
'S'.
1. Prosecution seeks to bring home the charge levelled on
the accused by relying on certain circumstances. As to when on
strength of evidence circumstantial in nature conviction can be
lawfully sustained, the law is well settled - the circumstances
from which the conclusion of guilt is to be drawn should, in the
first instance, be fully established; these circumstances should
SANTOSH @ BHURE v. STATE (G.N.C.T.) OF DELHI
A
B
C
D
E
F
G
H
722
SUPREME COURT REPORTS
[2023] 7 S.C.R.
be of a definite tendency unerringly pointing towards the guilt of
the accused; the circumstances taken cumulatively should form
a chain so far complete that there is no escape from the conclusion
that within all human probability the crime was committed by the
accused; the circumstances should be consistent only with the
hypothesis regarding the guilt of the accused; and they must
exclude every possible hypothesis except the one to be proved.
Further, the circumstances from which the conclusion of guilt is
to be drawn should be fully established meaning thereby that they
'must' or 'should' and not 'may be' established. While dealing
with a criminal trial, a Court must not be oblivious of the most
fundamental principle of criminal jurisprudence, which is, that
the accused 'must be' and not merely 'may be' guilty before the
Court proceeds to convict him. In Shivaji Sahabrao Bobade &
Another v. State of Maharashtra, this Court, elaborating upon the
above principle, observed that the mental distance between 'may
be' and 'must be' is long and divides vague conjectures from
sure conclusions. [Paras 23, 24][739-G-H; 740-A-D]
2. In Shivaji Chintappa Patil v. State of Maharashtra, it was
observed that Section 106 of the IEA, 1872 does not directly
operate against either a husband or wife staying under the same
roof and being the last person seen with the deceased. It was
observed that Section 106 of the Evidence Act does not absolve
the prosecution of discharging its primary burden of proving the
prosecution case beyond reasonable doubt. It is only when the
prosecution has led evidence which, if believed, will sustain a
conviction, or which makes out a prima facie case, that the
question arises of considering facts of which the burden of proof
would lie upon the accused. [Para 32][744-C-D]
3. This Court is of the view that though the prosecution
has succeeded in proving that the apartment where body of the
deceased was found stood in the tenancy of 'S' but it failed to
lead any evidence that the two accused, or any one of them, were
present there, or in the vicinity, either on 11.09.2000 or any time
thereafter, till recovery of the dead body. In other words, the
prosecution miserably failed to show the presence of the accused
around the probable time of murder. Further, the prosecution
A
B
C
D
E
F
G
H
723
led no evidence to establish that the concerned apartment was
under lock and key or exclusive control of either 'S' or 'N'. Even
the theory of exclusive possession of 'S' over that apartment is
dented by the statement of PW4 that till a week before the incident
one 'HR' used to live in that apartment with 'S'. There is also no
evidence of the prosecution to show that the concerned apartment
had a separate stair case accessible to 'S' and no one else. For all
the reasons above, though this Court holds that tenancy of the
concerned apartment was proved to be with 'S' but neither his
nor N's presence in that apartment, around the relevant time, is
proved by any evidence. It is also not proved that 'S' was in
exclusive possession or control of that apartment. Rather, from
the testimony of PW4 it appears that one 'HR' was residing there
with 'S' though, he had left the place a week before the incident.
As to whether the deceased came there after 'HO' had left or
was residing there since before, is not clear from the prosecution
evidence. In fact there is no evidence - (a) as to when the deceased
came into that apartment and (b) in what capacity he was residing
there. In light of the discussion above and in the facts of the
case, in considered view of this Court, the mere presence of the
dead body in the apartment let out to 'S' is not such a clinching
circumstance which, on its own, could sustain S's conviction with
the aid of section 106 of the IEA, 1872 by shifting the onus on
him to explain as to under what circumstances the dead body
with multiple injuries was found there. [Para 36][746-C-H]
Circumstance - Cause of death and place of murder
4. As regards death of victim being homicidal and a
consequence of multiple injuries caused by a sharp edged weapon,
no serious challenge is there to the findings returned by the courts
below. There is no challenge to the finding that blood etc. was
lifted from the apartment thereby confirming that murder took
place there. However, in addition to blood or blood-stained cot/
linen there were whisky bottle, empty packets/ pouches of salted
snacks, cigarette butts, etc. lifted from that apartment but there
is no evidence to connect those articles with either of the two
accused so as to confirm their presence and rule out the presence
of some other person at the relevant time. [Para 37][747-A-C]
SANTOSH @ BHURE v. STATE (G.N.C.T.) OF DELHI
A
B
C
D
E
F
G
H
724
SUPREME COURT REPORTS
[2023] 7 S.C.R.
Circumstance - Recovered Suicide Letter being in the
writing of 'N'
5. In the instant case, N's specimens of handwriting and
signature were obtained by the investigating agency during
investigation when there existed no specific provision in the Code
regulating the procedure for obtaining such specimens and there
existed no provision proscribing the investigating agency from
obtaining specimens of handwriting/signature of an accused or a
suspect. As far as the provisions of Section 73 of the IEA, 1872
are concerned, they apply when a proceeding such as an inquiry
or trial is pending in a Court. Since no proceedings were pending
before any Court when the specimens in question were obtained,
provisions of section 73 of the IEA, 1872 could not have been
invoked. In such a situation, as there existed no legal provision
proscribing an investigating agency from obtaining specimens of
handwriting/signature of a suspect or an accused, in view of this
Court, the investigating agency had the power to collect such
material including specimen handwriting/ signature as to assist
the prosecution to introduce a relevant fact or corroborate any
piece of evidence on a relevant fact/fact in issue. For the reasons,
the expert report (i.e. FSL report) obtained during investigation
by the investigating agency, predicated on specimens of
handwriting/ signature of accused obtained during investigation,
could not have been discarded merely because it was obtained
during investigation and without an order/permission of the Court
as contemplated under section 73 of the IEA, 1872.[Para 51][752E-G; 753-A-B]
6. In the instant case, according to the prosecution
evidence, the specimen signatures and handwritings of 'N' were
obtained during investigation. Memorandum/documents in
connection therewith including the specimens were produced,
proved and marked exhibits thereby proving that they were
properly kept and dispatched to FSL along with the disputed
suicide letter for obtaining expert opinion. Genuineness of those
specimens have not been questioned by 'N'. The only defence
taken is that the specimens of handwriting and signature were
obtained by compulsion. As this Court has already found that such
objection was unsustainable therefore, once genuineness of the
A
B
C
D
E
F
G
H
725
specimens was not disputed, the specimens were available for
comparison and were rightfully used for obtaining expert report.
In such a scenario, the net result would be that the FSL report,
which was provided by a government scientific expert specified
in Section 293 of the Code, was admissible regardless of the fact
that the expert was not examined as a witness. More so, when
the defence filed no application to summon the expert for crossexamination. Consequently, the finding of the High Court with
regard to the FSL report being inadmissible is erroneous and is,
accordingly, set aside. [Para 59][756-C-F]
Whether the FSL Report on its own was sufficient to hold
that the suicide letter was written by 'N'.
7. Though it is not impermissible to base a finding with
regard to authorship of a document solely on the opinion of a
handwriting expert but, as a rule of prudence, because of imperfect
nature of the science of identification of handwriting and its
accepted fallibility, such opinion has to be relied with caution and
may be accepted if, on its own assessment, the Court is satisfied
that the internal and external evidence relating to the document
in question supports the opinion of the expert and it is safe to
accept his opinion. In the instant case, with regard to authorship
of the suicide letter, the Trial Court though returned a finding in
favour of the prosecution by relying solely on the expert report
but did not record its satisfaction having regard to its own
observations with respect to the admitted and disputed writings.
It also did not examine whether in the proven facts and
circumstances of the case it would be safe to rely on the expert
report.It be noted that section 73 of the IEA, 1872 enables a
Court to compare the words or figures written by a person present
in Court with any words or figures alleged to have been written
by such person. The Trial Court therefore could have undertaken
such an exercise. But, in the instant case, there appears no such
exercise undertaken by the Trial Court. What is important is that
in the instant case there is no witness statement identifying the
handwriting of accused 'N' or disclosing that accused wrote the
suicide letter in his presence. There is also no evidence to explain
the relevance of the contents of the suicide letter. Interestingly,
SANTOSH @ BHURE v. STATE (G.N.C.T.) OF DELHI
A
B
C
D
E
F
G
H
726
SUPREME COURT REPORTS
[2023] 7 S.C.R.
the suicide letter indicts one person 'C'. As to why such indictment
was made; whether it was with reference to some other event
contemplated, the prosecution evidence is silent. Besides that,
there is no evidence to show that the investigating officer queried
person(s) conversant with the handwriting of the deceased to
rule out possibility of the suicide letter being in the writing of the
deceased himself. Such an exercise was necessary to lend
assurance to the prosecution story of the suicide letter being
written by accused to mask the murder, because, firstly, the death
on its face was not suicidal, and, secondly, it could have ruled out
possibility of it being written in contemplation of some other event.
Seen in that light, barring the expert report, there exists no
internal or external evidence to lend assurance to the prosecution
story that the suicide letter was written by accused 'N'. [Paras
65, 66][759-G-H; 760-A-G]
8. In addition to the above, it is difficult to accept as to why
'N' would leave a suicide letter written by him in a pocket of the
trouser worn by the deceased, particularly, when the injuries even
to a layman were homicidal. Notably, there were eight antemortem injuries found on the body of the deceased. [Para 67][760G-H]
9. Taking into account that 'N' has denied the incriminating
circumstance of writing the suicide letter and no internal or
external evidence, save the expert report, supports the writing
of suicide letter by 'N', this Court is of the considered view that
though the expert evidence was admissible as an opinion on the
writing in the suicide letter but, on overall assessment of the
evidence led by the prosecution, solely on its basis, it would be
extremely unsafe to hold that the suicide letter retrieved from
the trouser of the deceased was written by 'N'. [Para 69][762-BC]
Circumstance - The two accused were not traceable from
12.09.2000 till 23.09.2000
7. This Court does not find a good reason to draw an
adverse inference against the two accused on account of few days
delay in their act of surrender. [Para 70][763-E-F]
Circumstances - Disclosure statements, consequential
discoveries and their connect with crime.
A
B
C
D
E
F
G
H
727
8. As regards recovery of clothes at the instance of 'S',
PW4, a witness to that recovery, has been declared hostile. There
is thus no support to that recovery from any public witness. And
since this Court has already doubted the disclosure statements
set up by the police witnesses, it would be unsafe to place reliance
on their testimonies in respect of the recoveries pursuant thereto,
particularly, when the place from where recovery of clothes is
shown is none other than the rooftop of the building from where
13 days ago the body of the deceased was found. Because, in
such a scenario, it would be logical to expect that the police would
have left no nook and corner of that building unscanned. For all
the reasons above, we doubt the recovery of clothes at the instance
of 'S' and thereby discard the circumstance of recovery of clothes
at his instance. The circumstance that the clothes carried blood
of same group as of the deceased is rendered meaningless
because there is no admissible evidence to connect the clothes
with the two accused. As regards recovery of knife at the instance
of 'N', the same has been denied by 'N' and there appears no
independent witness to support it, inasmuch as PW-13, touted as
a public witness, turned out to be a special police officer.
Otherwise also, its incriminating value is extremely limited
because, firstly, there is no forensic evidence connecting the knife
with the crime; secondly, the knife is a common knife which could
easily be available; thirdly, the wounds found on the body of the
deceased were of different dimensions giving rise to possibility
of use of more weapon than one; and, fourthly, the entire exercise
of recovery does not inspire our confidence, particularly, because
the first attempt to recover had failed. For all the reasons above,
we hold that the circumstances with regard to making of
disclosure statements and consequential discoveries/recoveries
were not proved beyond reasonable doubt. [Paras 75, 76, 81,
82][766-B-E; 768-H; 769-A-C]
9. In light of the discussion above, there is no hesitation in
holding that the prosecution has failed to prove a chain of
incriminating circumstances as to conclusively point out that in
all human probability it was the two accused or any one of them,
and no one else, who had committed the murder. [Para 86][771C-D]
SANTOSH @ BHURE v. STATE (G.N.C.T.) OF DELHI
A
B
C
D
E
F
G
H
728
SUPREME COURT REPORTS
[2023] 7 S.C.R.
Sukhvinder Singh & Others v. State of Punjab (1994) 5
SCC 152 : [1994] 3 SCR 1061; Devi Lal v. State of
Rajasthan (2019) 19 SCC 447; Shambu Nath Mehra v.
State of Ajmer AIR 1956 SC 404 : [1956] SCR 199;
Nagendra Sah v. State of Bihar (2021) 10 SCC 725;
Shivaji Chintappa Patil v. State of Maharashtra (2021)
5 SCC 626; State of Bombay v. Kathi Kalu Oghad AIR
1961 SC 1808 : [1962] SCR 10; Selvi & Others v. State
of Karnataka (2010) 7 SCC 263 : [2010] 5 SCR 381;
State of Maharashtra v. Sukhdev Singh & Another
(1992) 3 SCC 700 : [1992] 3 SCR 480; Ram Narain v.
State of U.P. (1973) 2 SCC 86 : [1973] 3 SCR 91;
Fakhruddin v. State of Madhya Pradesh AIR 1967 SC
1326; Lachhman Singh & Others v. State (1952) 1 SCC
362 : 1952 SCC OnLine SC 30 : AIR 1952 SC 167 :
[1952] SCR 839; K. Chinnaswamy Reddy v. State of
A.P. & Another AIR 1962 SC 1788 : [1963] SCR 412;
Mohd. Inayatullah v. State of Maharashtra (1976) 1
SCC 828 : [1976] 1 SCR 715 - relied on.
State of Uttar Pradesh v. Ram Babu Misra (1980) 2
SCC 343 : AIR 1980 SC 791 : [1980] 2 SCR 1067;
Malti Sahu v. Rahul & Another (2022) 10 SCC 226;
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Shivaji Sahabrao
Bobade & Another v. State of Maharashtra (1973) 2
SCC 793 : [1974] 1 SCR 489; Sukh Ram v. State of
Himachal Pradesh (2016) 14 SCC 183 : [2016] 3 SCR
254; Ashish Jain v. Makrand Singh & Others (2019) 3
SCC 770 : [2019] 1 SCR 345; Sonvir alias Somvir v.
State (NCT of Delhi) (2018) 8 SCC 24 : [2018] 7 SCR
830; State of U.P. v. Sunil (2017) 14 SCC 516; Ritesh
Sinha v. State of U.P. & Another (2013) 2 SCC 357 :
[2012] 11 SCR 683; State (NCT of Delhi) v. Navjot
Sandhu (2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79;
Matru alias Girish Chandra v. State of U.P. (1971) 2
SCC 75 : [1971] 3 SCR 914; Pulukuri Kottaya & Others
v. Emperor AIR 1947 PC 67 - referred to.
A
B
C
D
E
F
G
H
729
Case Law Reference
[1994] 3 SCR 1061
relied on
Para 8
[1980] 2 SCR 1067
referred to
Para 8
[1962] SCR 10
relied on
Para 17
[1985] 1 SCR 88
referred to
Para 23
[1974] 1 SCR 489
referred to
Para 24
[1956] SCR 199
relied on
Para 30
[2016] 3 SCR 254
referred to
Para 49
[2019] 1 SCR 345
referred to
Para 49
[2018] 7 SCR 830
referred to
Para 49
[2010] 5 SCR 381
relied on
Para 55
[2012] 11 SCR 683
referred to
Para 56
[2005] 2 Suppl. SCR 79
referred to
Para 56
[1992] 3 SCR 480
relied on
Para 62
[1973] 3 SCR 91
relied on
Para 63
[1971] 3 SCR 914
referred to
Para 70
[1952] SCR 839
relied on
Para 73
[1963] SCR 412
relied on
Para 78
[1976] 1 SCR 715
relied on
Para 79
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.575 of 2011.
From the Judgment and Order dated 05.03.2009 of the High Court
of Delhi at New Delhi in Criminal Appeal No.682 of 2008.
With
Criminal Appeal No.576 of 2011.
Jayant K Sud, ASG, Ranji Thomas, Sr. Adv., Shreekant Neelappa
Terdal, Ms. Nidhi, Sarthak Arora, Mohit Girdhar, Pramod Dayal, Nikunj
Dayal, Rakesh Kumar, Nishesh Sharma, Akshit Pradhan, Annirudh
Sharma, Bhuvan Mishra, B. K. Satija, Ms. Kiran Suri, Kartik Jasra, G.
S. Makker, Advs. for the appearing parties.
SANTOSH @ BHURE v. STATE (G.N.C.T.) OF DELHI
A
B
C
D
E
F
G
H
730
SUPREME COURT REPORTS
[2023] 7 S.C.R.
The Judgment of the Court was delivered by
MANOJ MISRA, J.
1. These two appeals preferred against the judgment and order of
the Delhi High Court (for short "the High Court") dated March 5, 2009
in two connected appeals i.e. Criminal Appeal Nos.682 of 2008 and 316
of 2008 are being decided by a common judgment.
2. Two persons, namely, Santosh @ Bhure (appellant in Criminal
Appeal No.575 of 2011) and Neeraj (respondent in Criminal Appeal
No.576 of 2011) were tried for offences punishable under Sections 302
read with 34 and 120-B of the Indian Penal Code, 1860 (for short "IPC").
The Court of Additional Sessions Judge, Rohini Courts, Delhi (for short
"the Trial Court") vide order dated 27.02.2008 found them guilty for
offence punishable under Section 302 read with Section 34 IPC and,
vide order dated 29.02.2008, sentenced them to imprisonment for life.
They were, however, found not guilty for offence of criminal conspiracy.
Aggrieved therewith, two separate appeals, namely, Criminal Appeal
Nos.316 of 2008 and 682 of 2008, were filed before the High Court. The
Criminal Appeal No.316 of 2008 filed by Neeraj was allowed thereby
acquitting him of the charge of murder whereas Criminal Appeal No.682
of 2008 filed by Santosh @ Bhure was dismissed.
3. Aggrieved by acquittal of Neeraj, State of Delhi has preferred
Criminal Appeal No.576 of 2011 whereas, aggrieved by dismissal of his
appeal, Santosh @ Bhure has filed Criminal Appeal No.575 of 2011.
Introductory Facts
4. (i) The prosecution story in brief is that Santosh @ Bhure was
tenant of an apartment on the second floor of a building
owned by Ramesh Chand (PW3). On 12.09.2000, at about
10.40 a.m., an information was given to the police that a
dead body is lying in that apartment. On receiving the
information police team visited the spot, found a person lying
dead on a folding cot and blood scattered all over the floor
as also the cot/ bed linen. The bed linen, blood, burnt
cigarette pieces, match box, empty packets of salted snacks
mixture, whisky bottle, plate etc. found there were lifted
and seized by the police. Besides that a suicide letter was
found in a pocket of the trouser which the deceased was
wearing. The same was also seized. The body could not be
A
B
C
D
E
F
G
H
731
identified at the spot. However, later, Bhagwan Dass
(PW26) identified it to be of Hari Shankar. On 13.09.2000,
Shiv Shankar (PW23), brother of the deceased, Smt.
Vandana (PW9), wife of the deceased, and Ajay Kumar
(PW18), brother-in-law of the deceased, on information,
arrived and confirmed that the body is of Hari Shankar.
During investigation Ramesh Chand (PW3), owner of the
building, disclosed that Santosh @ Bhure was his tenant
and occupant of that apartment and at about 4.00 p.m., on
11.09.2000, Santosh was seen leaving the premises with a
Gathri (a bag made of cloth) in his hand. Raj Kumar (PW4),
a tenant of the first floor, during investigation, stated that
Santosh @ Bhure resided in that apartment with one Hari
Om who had left a week prior to the incident, and on
11.09.2000, at about 9.00 p.m., he saw the deceased playing
cards and having liquor with Santosh and Neeraj in that
apartment.
(ii)
On 20.09.2000 police party visited Etawah, the native place
of Santosh @ Bhure, but could not find him there. However,
the accused persons surrendered before the concerned
Court at Tis Hazari on 23.09.2000. On getting information
of their surrender, the police moved an application for their
custody and got three days' police custody of both the
accused.
(iii)
As per prosecution, two disclosure/confessional statements
were made by each of the two accused during police
custody; the first, dated 23.09.2000, resulted in no discovery,
whereas the second, dated 25.09.2000, resulted in recovery
of a knife/dagger at the instance of Neeraj and blood-stained
clothes, carrying blood of same group as of the deceased,
at the instance of Santosh @ Bhure.
(iv)
On basis of the materials so collected, both the accused
were charge-sheeted. After taking cognizance on the police
report, the matter was committed to the Court of Session.
The Court charged them for offences punishable under
sections 302/34 and 120-B IPC.
(v)
During the course of trial, 29 prosecution witnesses were
examined and various documents in respect of seizure of
SANTOSH @ BHURE v. STATE (G.N.C.T.) OF DELHI
[MANOJ MISRA, J.]
A
B
C
D
E
F
G
H
732
SUPREME COURT REPORTS
[2023] 7 S.C.R.
articles, forensic reports, autopsy report, etc. were produced
and exhibited.
(vi)
As there existed no eye witness account of the murder, the
prosecution sought to rely on circumstances, enumerated
in paragraph 49 of the Trial Court's judgment, extracted
below:
"49. ......
i.
tenancy and the residence of accused Santosh @
Bhure on the second floor of House No.D-156, JJ
Colony, Khyala;
ii.
Hari Om residing with accused Santosh @ Bhure in
the tenanted premises and leaving the premises about
one week before the incident;
iii.
presence of deceased Hari Shankar at the residence
of accused Santosh @ Bhure;
iv.
recovery of dead body of Hari Shankar from the
second floor of House No.D-156, JJ Colony, Khyala
and its identification;
v.
recovery of the letter, Ex.PW15/G from the pocket
of the pant which the deceased was wearing and its
seizure;
vi.
seizure of exhibits from the place of crime;
vii.
post-mortem on the body of the deceased and the
report;
viii.
arrest of accused Santosh @ Bhure and Neeraj;
ix.
disclosure statements of the accused persons and
the recovery of the exhibits at their instance;
x.
specimen hand-writing and signature of accused
Neeraj and sending of the letter, Ex.PW15/G and
the specimen hand-writing and signature of the
accused to the handwriting expert of FSL and its
report;
xi.
opinion of the autopsy surgeon about the use of the
recovered knife and causing injuries on the person
of deceased;
A
B
C
D
E
F
G
H
733
xii.
deposit of the sealed parcels of the exhibits with the
in-charge malkhana of PS Tilak Nagar and sending
of the parcels to FSL;
xiii.
reports of the FSL and their use in establishing the
case."
Findings of the Trial Court
5. The Trial Court found-
(i)
The testimonies of PW3 Ramesh Chand (owner of the
building) and PW4 Raj Kumar (tenant of first floor of the
building) proved that Santosh @ Bhure was tenant and
resident of the apartment where the dead body of Hari
Shankar, blood, etc. were found.
(ii)
The testimony of PW4 proved that Hari Om, who had been
residing with accused Santosh @ Bhure in that apartment,
had left the premises about a week before the incident.
(iii)
The testimony of PW4 proved that when he visited the
apartment of Santosh @ Bhure on 11.09.2000, between
noon and 1.00 p.m., to pay him money, Hari Shankar (the
deceased) was noticed there alive and in an inebriated state.
(iv)
The dead body was duly identified as that of Hari Shankar.
(v)
The autopsy report prepared by Dr. M.M. Narnaware,
which was proved by Dr. Lalit Kumar (PW27), established
that death was homicidal.
(vi)
The testimonies of police witnesses, documents prepared
in respect of lifting/ seizure of blood, articles, etc. from the
spot and the material exhibits proved that the murder was
committed in that very apartment.
(vii)
The testimonies of SI Rajesh Kumar (PW15) and Inspector
J.L. Meena (PW28) and the documents exhibited proved
that a suicide letter was found in a pocket of the trouser
which the deceased was wearing at the time of his death.
(viii) The testimonies of police witnesses also proved that on
20.09.2000 the native place of accused (Santosh) in district
Etawah (State of U.P.) was visited to effect his arrest but
SANTOSH @ BHURE v. STATE (G.N.C.T.) OF DELHI
[MANOJ MISRA, J.]
A
B
C
D
E
F
G
H
734
SUPREME COURT REPORTS
[2023] 7 S.C.R.
he could not be found. Thereafter, the two accused
surrendered in court on 23.09.2000 and were remanded to
police custody.
(ix)
The testimonies of police witnesses PW28 and PW15 and
the exhibited documents proved that the two accused had
made two confessional disclosures. One, on 23.09.2000,
which resulted in no discovery, and other, on 25.09.2000,
which, at the pointing out of Santosh, resulted in discovery
of blood-stained clothes and, at the pointing out of Neeraj,
a knife/dagger.
(x)
The testimonies of PW15 and PW28 proved that specimen
handwriting and signature of Neeraj was obtained and a
memorandum to that effect was prepared and that the
suicide letter, specimen handwriting and signature of
accused Neeraj were sent to the Forensic Science
Laboratory (FSL) for comparison/opinion.
(xi)
The Senior Scientific Officer (Documents), FSL-cum-ExOfficio Chemical Examiner to Government of NCT of Delhi,
whose report is admissible under section 293 of the Code
of Criminal Procedure, 1973 (for short "the Code"),
confirmed, vide report dated 29.12.2000, that the suicide
letter and specimens were in the handwriting of one and
the same person.
(xii) Ex.PW27/B prepared by autopsy surgeon Dr. M.M.
Narnaware, proved by PW27, suggested that the knife/
dagger recovered at the instance of Neeraj could have
caused such injuries as were found on the body of the
deceased.
(xiii) The testimonies of police witness, etc. proved that the articles
sent for forensic examination were duly sealed, properly
kept and dispatched.
(xiv) The serologist report proved that the clothes recovered at
the instance of Santosh @ Bhure carried human blood of
same group as found on the trouser and vest worn by the
deceased at the time of his death.
6. On strength of the above findings, the Trial Court concluded
that the proven circumstances constituted a chain which conclusively
A
B
C
D
E
F
G
H
735
indicated that the accused Santosh @ Bhure in the company of coaccused Neeraj committed the crime and to remove the evidence hid
the dagger and the blood-stained clothes and further, to hoodwink the
police, Neeraj wrote and planted a suicide letter in a pocket of the trouser
worn by the deceased. The Trial Court noticed that the accused had
offered no plausible explanation for the incriminating circumstances
appearing against them hence they were liable to be convicted and
sentenced under section 302 read with section 34 IPC. However, in
absence of any evidence with regard to prior meeting of mind, the Trial
Court acquitted them of the charge of criminal conspiracy.
7. Aggrieved with their conviction, Santosh @ Bhure and Neeraj
filed separate appeals before the High Court. The High Court allowed
the appeal of Neeraj whereas the appeal of Santosh @ Bhure was
dismissed.
High Court Findings
8. The High Court by placing reliance on two decisions of this
Court, namely, Sukhvinder Singh & Others v. State of Punjab1; and
State of Uttar Pradesh v. Ram Babu Misra2,held that the expert opinion
with regard to the suicide letter being in the handwriting of Neeraj would
have to be eschewed, inasmuch as the specimens of handwriting and
signature of Neeraj were obtained with neither his consent nor permission/
order of the Court. It held that once that piece of evidence is eschewed,
hardly any incriminating circumstance is left to sustain Neeraj's
conviction. Consequently, Neeraj's appeal was allowed.
9. With regard to co-accused Santosh @ Bhure, the High Court
found the prosecution successful in proving - (a) that at about 11.00
a.m. on 12.09.2000 dead body of the deceased was found in the apartment
under his tenancy and occupation; (b) that the deceased died a homicidal
death; (c) that Santosh absconded and could be apprehended only on
23.09.2000; (d) that blood-stained clothes were recovered pursuant to
his disclosure statement and at his pointing out; and (e) that those clothes
carried blood of human origin and of same group as found on clothes
worn by the deceased. The High Court concluded that the above
circumstances constituted a chain so far complete as to conclusively
indicate that in all human probability it was Santosh and no one else who
1 (1994) 5 SCC 152
2 (1980) 2 SCC 343 : AIR 1980 SC 791
SANTOSH @ BHURE v. STATE (G.N.C.T.) OF DELHI
[MANOJ MISRA, J.]
A
B
C
D
E
F
G
H
736
SUPREME COURT REPORTS
[2023] 7 S.C.R.
committed the crime, therefore, in absence of a proper explanation of
the incriminating circumstances appearing against him, Santosh's
conviction and sentence was liable to be upheld. Consequently, his appeal
was dismissed.
10. We have heard learned counsel for the parties at length.
Submissions in Criminal Appeal No.575 of 2011
11. In Criminal Appeal No.575 of 2011, on behalf of appellant
Santosh @ Bhure, it was argued that, firstly, there is no documentary
evidence that Santosh was tenant of the apartment; secondly, no motive
for murder is proved; thirdly, presence of Santosh in that apartment at
the relevant time is not proved; and, fourthly, when the police team visited
the spot, a plate, glass, steel bowl, quarter bottle of whisky, packet of
salted snacks mixtures were found, yet the FSL Report is silent whether
fingerprints of the appellant was found on those articles, which suggests
that someone else committed the crime.
12. In respect of disclosure statement leading to discovery/recovery
of blood-stained clothes, it was argued that, firstly, as alleged by the
prosecution, there were two disclosure statements, the first resulted in
no discovery, therefore, in absence of evidence as to what transpired
between the first and the second disclosure, the creditworthiness of the
second disclosure as the basis of discovery of the place of concealment
is seriously dented. More so, when that place is rooftop of the same
building where the murder took place 13 days ago. Moreover, from the
statement of police witnesses, it appears that identical disclosure
statements were made by the two accused almost simultaneously,
therefore, in absence of clear and satisfactory evidence as to whose
disclosure was made first, not much value could be attached to such a
disclosure and the consequential recovery.
13. It was next argued that assuming the blood-stained clothes
were recovered on 25.09.2000, there existed no admissible evidence to
prove that those clothes were of the accused. The statement of Santosh
@ Bhure, one of the two accused, made to the police in respect thereof
is not admissible in evidence.
14. In addition to the above, learned counsel for the appellant
Santosh @ Bhure strenuously argued that mere presence of a dead
body in the apartment of an accused, which is accessible to others and is
not under lock and key or exclusive control of the accused, by itself is
A
B
C
D
E
F
G
H
737
not sufficient to infer that the accused has committed the crime,
particularly, when there is no proven motive for the crime and there is no
evidence of the deceased being last seen alive in the company of the
accused. Moreover, there is no evidence in respect of presence of Santosh
in the apartment or in the vicinity around the probable time of occurrence.
Rather, PW4 stated that on 11.09.2000 when he visited the apartment
between noon and 1 p.m., he saw the deceased there but could not
notice Santosh @ Bhure there, rather, the deceased told him that Santosh
@ Bhure was not at home. Further, the presence of whisky bottle, snacks
pouches, etc. at the spot suggested that the deceased had some person
to give him company. However, the prosecution evidence could not
disclose as to whose finger prints were found on those articles. Thus,
the prosecution evidence leaves a large gap in the chain of circumstances
thereby failing to rule out third person's hand in the crime. Hence, the
benefit of doubt must enure to the appellant.
15.