JUDGMENT Rakesh Tiwari, J.
1. Heard the learned Counsel for the parties and perused the records.
2. This is a writ petition under Article 226 of, the Constitution of India filed by Khem Chand against the judgment and order of his conviction under Section 302, IPC passed by the General Court Martial and Chief of the Army Staff, Annexure-6 and Annexure-7 to the writ petition. By an order dated 21.1.1975, Annexure 6 to the writ petition, the petitioner was to suffer imprisonment for life. He was to be dismissed from service also consequently. The sentence was subject to the confirmation by the General Officer Commanding. The findings and sentence of the General Court Martial were confined by the General Officer Commanding vide order dated 25.2.1975 and the appeal of the petitioner to the Chief of the Army Staff, New Delhi, was also dismissed.
3. At the time of admission, this petition was connected with Civil Misc. Writ Petition No. 8723 of 1980, Satya Deo Giri v. Union of India and others, vide order dated 19.2.1981.
4. The brief facts of the case are that petitioner Khem Chand alongwith Isa Nand Dubey and Satya Deo Giri was charged for the offence of committing murders of Havaldar Ram Phal and Sepoy Jagannath Prasad on 26.1.1974 at about 5-00 p.m.
5. Writ petitions were also filed by the co-accused Isa Nand Dubey and Satya Deo Giri being Civil Misc. Writ Petition No. 1664 of 1997- Isa Nand Dubey v. Union of India and others and Civil Misc. Writ Petition No. 8723 of 1980 - Satya Deo Giri v. Union of India and others. The said writ petitions have since, been decided by judgments dated 6.4.1978 and 11.10.2002 respectively. The impugned orders and verdict of the General Court Martial convicting Isa Nand Dubey and Satya Deo Giri and sentencing them to life imprisonment and dismissing them from service were quashed. Consequential order of the Chief of the Army Staff rejecting their representations was also quashed as a consequence of quashing of the verdict impugned in the above two writ petitions.
6. The case of this petitioner is also based upon circumstantial evidence. The petitioner was appointed in the Army as Sepoy in Army Ordinance Corps and was posted at Jhansi. The case set up by the petitioner is that he was falsely implicated in the case of murders of deceased Havaldar Ram Phal and Sepoy Jagannath Prasad which is alleged to have taken place in village Bhatgaon on 26.1.1974 at about 5-00 p.m. A FIR was lodged at Police Station Sadar Bazar, District Jhansi on 27.1.1974 at about 2-00 p.m. The Police Station was at a distance of about 3 Kms. from the place of incident. The motive for the murders was attributed to an incident dated 19.1.1974 in which it is alleged that the deceased Havaldar Ram Phal and Sepoy Jagannath Prasad had tried to molest and outrage the modesty of the wife of co-accused Satya Deo Giri, said to be a fried of petitioner Khem Chand. The case of the prosecution was that this incident caused serious heart burn to Satya Deo Giri, husband of Smt. Meera Devi and the petitioner who treated her as his sister. It is alleged that the petitioner and the co-accused Satya Deo Giri nursed the grudge as they entered into a conspiracy to do away with Havaldar Ram Phal and Sepoy Jagannath Prasad. It is further alleged that on 26.1.1974, the petitioner collected a double barrel Gun belonging to Naib-Subedar B.N. Pandey and at about 5-00 p.m., the three accused persons, namely, the petitioner, Isa Nand Dubey and Satya Deo Giri in furtherance of their common intention committed the murders of Havaldar Ram Phal and Sepoy Jagannath Prasad by shooting them down near village Bhatgaon. After the alleged incident, a Court of Enquiry was constituted on 30.1.1974, to conduct the trial according to the Army Act. It in turn recorded the evidence of the witnesses. From the evidence recorded in the enquiry proceedings, it came out that all the witnesses named in the complaint had shown ignorance regarding the alleged incident, so no prima facie case was made out against the petitioner arid his two companions. Accordingly, a report was submitted to respondent No. 3 at Jhansi. Admittedly, according to the case of the prosecution there was no witness to the incident of the murders alleged to have committed by the petitioner and the other co-accused. Only dead bodies of Havaldar Ram Phal and Sepoy Jagannath Prasad were found lying near village Bhatgaon.
7. There was no direct evidence against any of the accused persons including the petitioner. Station Officer of P.S. Sadar Bazar took up the investigation of the alleged incident in his hand with the permission of the Military Officers. He took the petitioner along with other two co-accused to the Police Station where the petitioner was shown to the witnesses, who were already tutored. After having been shown to the tutored witnesses, the petitioner was put up for identification in the District Jail, Jhansi and was identified by three witnesses, namely, Damroo Prasad (PW-12), Sewa Ram (PW-21) and Munna Lal (PW-19). Note of the Officer recording summary of evidence dated 13.8.1974 has been filed as Annexure-1 to the writ petition, which is as under :-
"I have not seen fit to record the statement of the following civilian witnesses as in a preliminary interview they confirmed to me in the presence of I.S. Chahel Adj. 65 EME Bn. that they did not have any first hand knowledge of the case and that they had earlier given statement under duress and tutoring from the civil police :
(a) Shri Damroo
(b) Shri Sewa Ram
(c) Shri Munna Lal A detailed examination of individuals who recognized the accused at the identification parade has, similarly, not been carried out as without exception all a witnesses, have confirmed to me that they have been tutored prior to the parade and told as to who they must point out."
8. In the aforesaid circumstances, the General Officer Commanding refused permission to proceed against the petitioner in the General Court Martial on the ground that there was insufficient and weak type of evidence. It appears that thereafter an order was passed for additional evidence.
9. Papers of additional summary evidence were submitted to the General Officer Commanding-in-Chief, Central Command, Lucknow, who sanctioned General Court Martial against the petitioner and two other persons. The Court is at a loss to know what prompted of taking the additional evidence.
10. The petitioner made an application before the Presiding Officer, General Court Martial, Jhansi raising the plea of jurisdiction on the ground that prior to the incident, the petitioner had applied for discharge from service which was allowed prior to the said incident and as a consequence thereof, the petitioner was discharged by the Officer Commanding under Section 22 of the Army Act. It is submitted that in view of this, the petitioner was not in active service and the General Court Martial has no jurisdiction to try the petitioner in view of the provisions of Section 70 of the Army Act. It is submitted that the plea of jurisdiction raised by the petitioner was rejected by the General Court Martial by a one line order mechanically and without application of mind. The said order runs as under:
"The Court overrules the special plea as to jurisdiction offered on behalf of accused No. 1 (petitioner) and decide to proceed with the trial."
11. The case, against the petitioner is totally based on circumstantial evidence. There being no direct or any other evidence. There is total lack of witness of fact. The circumstances set out by the prosecution to prove the complicity of the petitioner in the offence are :-
(a) On 26.1.1974 the petitioner obtained a double barrel Gun belonging to Naib Subedar B.N. Pandey.
(b) The petitioner was seen in the company of the deceased and co-accused Satya Deo Giri and Isa Nand Dubey at about 2-30 p.m. before the alleged murders. He was seen coming from near the site of the alleged murder in the company of other co-accused persons.
(c) There was confession by Satya Deo Giri during the summary proceedings before the General Court Martial to the effect that he had gone for Shikar with Khern Chand (petitioner) who shot the two deceased.
12. The total circumstantial evidence against the petitioner to prove his complicity in the crime is as under :
(i) PW-11 Sepoy Sweeper E.P. Verghese in his statement had stated before Shri S.K. Tiwari, Sub-Inspector, P.S. Sadar Bazar, Jhansi, that he did not know any thing about the case. His statement was recorded after a long time of the alleged incident. PW-11 made a statement that he had seen the deceased persons along with the petitioner and two other co-accused persons, namely, Isa Nand Dubey and Satya Deo Giri on 26.1.1974, between 2-00 and 2-30 p.m., in village Bhatgaon.
(ii) The petitioner has been correctly identified by PW-12 Damroo Prasad, PW-21, Sewa Ram and PW-19, Munna Lal.
(iii) Admission made by one of the co-accused, namely, Satya Deo Giri during summary proceedings before the General Court Martial to the effect that Satya Deo Giri had come for Shikar with the petitioner, who shot the two deceased.
13. In so far as the witnesses who had identified the petitioner are concerned, it may be noted that they were admittedly tutored and the petitioner was shown to them before identification took place. The accused including the petitioner were identified on the pointing of the Police. PW-12, Damroo Prasad lives in village Bhatgaon itself and PW-19, Munna All and PW-21 Sewa Ram live in village Singhara which is adjacent to the village Bhatgaon and were known to the petitioner.
14. PW-12, Damroo Prasad stated before the General Court Martial that he saw all the accused for about 14 seconds only and at that time he was watching the flow of water to ensure that his field was properly irrigated and further that there was a hedge in between the place he was irrigating the field and the way the accused passed. In his statement made before the General Court Martial, he stated as under :-
"I have not seen anything about this case and I have identified the three accused on the suggestion of the civil police."
15. Thus, the General Court Martial has committed illegality in replying upon the evidence of this witness.
16. PW-19, Munna All in his evidence stated that he was also present at the time of site inspection. At the site inspection, he saw the place from where he first saw the accused for the first time and thereafter last time. Since, it was not possible for Munna All (PW-19), to recognize the accused from the Kuchcha Road down, he made a shift in his stand for the first time in the proceedings before the General Court Martial and stated that at the time of inspection, he came forward about 35 steps to see the accused and then again went back. He stated as under -
"I stated at the summary of evidence that I saw them at a distance of about 50 yards and could not make out facial features."
17. Munna All (PW-19) also stated same thing before the General Court Martial during the course of enquiry proceedings. In the examination he stated :-
"At about 17.30 hours on 26th January, 1974, I was returning from Jhansi to my village. I observed two men walking fast coming towards Jhansi : one of these was carrying a Gun. I saw them at a distance of about 50 years and could not make out any facial features."
18. Thus, the evidence of this witness too was irrelevant as he could not even recognize the accused from where he was standing and had not given any circumstance or positive identification of the accused petitioner.
19. PW-21 Sewa Ram stated that he was with Munna All (PW-19) when he is said to have seen accused Satya Deo Giri. It appears from the evidence of Sewa Ram that he was tutored by the civil police and had made statement under duress. This appears from the following statement:-
"I incorrectly stated before the two Military Officers that I did not have any knowledge of this case and that I have earlier given statement under duress and coaching from the civil police.".
20. The other two witnesses were not examined before the Court of enquiry proceedings and as such the evidence of these three witnesses is of no help and could not be used, relied upon or believed by the General Court Martial against the petitioner. All the witnesses, who are alleged to have identified the petitioner, had not stated that the petitioner was known to them from before. The statements of these witnesses falsify itself from the evidence of identification against the petitioner. The General Court Martial itself did not hold any identification from these witnesses further adds strength.
21. The Counsel for the petitioner has challenged the verdict of guilt on the following grounds :-
(a) The circumstances and evidence given above, do not make out any case and the offence is not proved against the petitioner.
(b) Once the General Court Martial has passed an order that there was no prima facie case proved against the accused, General Officer Commanding-in-Chief, Central Command, Lucknow had no jurisdiction to order for General Court Martial and in any case, the petitioner could not be proceeded under the Army Act as he had already been discharged from the service of the Army before the commission of this offence.
(c) The so-called confession statement of the petitioner made in the presence of Capt. I.S. Chahel before the Sub-Inspector at the time of interrogation by the Investigating Officer of the civil police is not admissible in evidence.
(d) The statement of PW-11 Sepoy Sweeper E.P. Verghese is not supported by any other evidence on record and he has not given any reason as to why Sub-Inspector S.K. Tiwari recorded the statement not given by him.
(e) The offence of murders had been committed in the Civilian Area, hence, the Army Act under which the petitioner was tried, is not applicable and once discretion was exercised by the Military Authorities and the case had been handed over to the civil police which had investigated the same and submitted a charge-sheet against the petitioner and others in the Court under Section 173 Cr.P.C. and the Court took cognizance, there is no provision under Section 173 Cr.P.C, to take back the case by the Military Authorities and to proceed with it in the General Court Martial. The proceedings of the General Court Martial are, therefore, without jurisdiction.
(f) Even if whole prosecution version is accepted, no offence is made out against the petitioner as the circumstantial evidence against the petitioner to connect him with the crime is insufficient and no connecting link of the circumstances was shown in the prosecution evidence. Hence, petitioner's conviction is bad, against the evidence on record and illegal.
(g) Co-accused Isa Nand Dubey,who was also awarded life imprisonment, filed Writ Petition No. 1664 of 1997, in this Court, which was allowed by the judgment and order dated 6.4.1978. The other co-accused Satya Deo Giri, who was also awarded life imprisonment along with the petitioner, had also filed Writ Petition No. 8723 of 1980, which was also allowed by the judgment and order dated 11.10:2002, quashing the impugned order/verdict of the General Court Martial.
(h) From the evidence on record, there is no iota of evidence regarding any common intention or committing of the offence in furtherance of the common intention.
22. The circumstances from which the finding of guilt can be drawn must fully and conclusively establish the guilt of the accused and the fact 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 and all the circumstances taken together must conclusively establish that the crime was committed by the accused alone.
23. The prosecution could not bring any legal evidence to establish that there was a common intention and a pre-arranged plan between the three accused in furtherance of which the petitioner had participated in the Criminal Act. From the record also no basis can be found which implies a pre-arranged plan and that the Criminal Act alleged to have been committed by the accused was a consequence of that plan. An accused can be convicted of an offence with the aid of Section 34, IPC only if it is proved that the Criminal Act was done in concert pursuant to the pre-arranged plan as held in Mahbub Shah v. Emperor, AIR (32) 1945 Privy Council 118. There is nothing on the record to show, that there was a prior meeting of minds and there is not an iota of evidence to show as to when and where the plan to do away with Havaldar Ram Phal and Sepoy Jagannath Prasad was hatched or that the accused along with other co-accused went with the deceased with a pre-plan, a common intention to commit the crime. On the other hand, it is an admitted fact that all the accused and the deceased went to the jungle to play Shikar and it was natural for them to have a Gun. The accused and the deceased were in the jungle for about two hours and the accused had enough time to do away with the deceased. Strangely enough nothing was done in the thick of the jungle where they could have sufficient opportunity to commit the alleged Criminal Act. No reason was given by the prosecution as to why the accused would commit the murders on the out-skirt of the village where such murders could have been witnessed by the public in general inspite of the fact that they had about two hours time inside the jungle. Thus, the theory of pre-meditated plan to do away Havaldar Ram Phal and Sepoy Jagannath Prasad does not stand scrutiny.
24. Now, reverting to the evidence of Isa Nand Dubey, a co-accused against the petitioner, who is said to have admitted in the proceedings of summary evidence that the petitioner Khem Chand had shot the two deceased. Reliance has been placed by the Counsel for the petitioner in Balbir Singh v. State of Punjab, AIR 1957 SC 216, wherein it has been held that the rule of prudence should be universally followed and it is unsafe to Act upon unless, it is corroborated so as to implicate the accused and further evidence of one accomplice cannot be used to corroborate the evidence of another co-accused.
25. The evidence given by Isa Nand Dubey, co-accused, is an exculpatory statement and not an inculpatory one i.e., he has stated himself to be innocent and assigned the role to the petitioner. In the instant case, there is no independent evidence implicating the petitioner and it cannot be said that Isa Nand Dubey had himself placed in a position in which he can hardly be nailed. He had a strong reason to corner-out in favour of the prosecution. In accepting the statement of Isa Nand Dubey, there could be real danger whether he is telling a story which in its general outline true and it is easy for him to work on the said theory which is untrue. Thus, there is always a risk of condemning an innocent person with the guilt if no independent evidence is there, which in some manner implicates each of the accused. The Privy Council in the case of Bhuboni Sahu v. The King, AIR (36) 1949 Privy Council 257, dealing with the confession of the co-accused held that confession of a co-accused does not amount to proof and is an evidence of weak type which cannot be made foundation for conviction. Interpreting Section 30 of the Evidence Act, 1872, the Court in Paragraph 9 held :
"This section was introduced for the first time in the Evidence Act, 1872 and marks a departure from the Common Law of England. It will be noticed that the section applies to confession, and not to statements which do not admit the guilt of the confessing party. In the present case, the Courts in India appreciated this, and ruled out statements made by certain set of the accused which were self-exculpatory in character. The statement of Trinath was, however, a confession. Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of the confession against others as well as himself. But, a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of evidence contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act, but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in most of the High Courts in India, namely, that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction, is correct."
26. Similarly, in the case of Ram Bharose and others v. Rex, AIR (36) 1949 Alld. 132, relying upon the principles laid down in Queen Employ Emperor v. Jagroop, 7 Alld. GIG : 1885 AWN 131, it has been held :
"The words "affecting himself and some other of such persons" in Section 30 are important and do suggest that before the confession made by one person can be taken into consideration as against other persons, who are being tried jointly with him for the same offence, it must affect the maker as well as others. If the statement docs not affect the maker thereof or only ascribes to him a part not sufficient by itself to justify his conviction for the offence for which he is being jointly tried wit others, it will not be a confession of the nature contemplated by Section 30."
27. This position of law has been followed in Balbir Singh v. State of Punjab, AIR 1957 SC 216, in which it has been held :
"So far as the confessional statement of one accused is concerned, it may be taken into consideration against the other accused, if it fulfills the conditions laid down in Section 30 of the Evidence Act. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom, it is sought to be taken into consideration. Where on reading the confession as a whole, it appears that he was really trying to throw the main blame on the other accused and make out that he was an unwilling spectator of the crime committed by the other accused, the utmost that can be stated is that the confession cannot be used at all against the other accused. But, because there are differences between his confession and the confessional statement of the other accused, the confessional statements cannot be condemned out of end or in limine as untrue where some of the differences are immaterial, some others are due to the desire of the accused to throw the blame on the other and the rest stand clearly resolved by other evidence in the case."
28. It has again been reiterated in Hari Charan Kujrmi v. State of Bihar, AIR 1964 SC 1184, that confession of a co-accused under the provisions of Section 30 of the Evidence Act is not an evidence as defined by Section 3 of the Act, as a result of which in dealing with an accused person the Court cannot start with the confession of a co-accused. It must begin with other evidence adduced by the prosecution. To the same effect is the case of Kashmira Singh v. The State of Madhya Pradesh, AIR 1952 SC 159, the Court in this case has held that the proper away is first to marshal the evidence against the accused excluding the confession and see that if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then, of course, it is not necessary to call the confession in aid. In Khaswababa Maruti Shelke v. The State of Maharashtra, 1973 Cri LJ 1607, also the same view has been expressed.
29. The inference deducible from the above said discussions, thus, is that extrajudicial confession is not simply a weak type of evidence, but is also not an independent piece of evidence in consonance with provisions of Section 3 of the Evidence Act. For consideration by the Courts it is required to inculpatory also. An exculpatory confession is not to be taken into consideration, unless some independent corroboration from other reliable circumstances is available. All these circumstances are absent in extrajudicial confession of Isa Nand Dubey. It, therefore, virtually is not credible and was wrongly relied upon in Court Martial Proceedings.
30. Similarly, in the case of Sharad Birdhichand Sarda v. Stale of Maharashtra, AIR 1984 SC 1622, a Constitution Bench of the Apex Court laid down following principles/conditions precedent which must be fulfilled in a case before a change, based purely on circumstantial evidence, can be said to be fully established against any accused :
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established.
(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.
(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.
(6) Various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(7) The said circumstances point to the guilt of the accused with reasonable definiteness.
(8) The circumstances is in proximity to the time and situation.
31. Thus, the theory of common intention and circumstantial evidence was also not believed in the aforesaid case.
32. From the evidence on record and the circumstances of the case relied upon by the prosecution, it cannot be said that they conclusively lead to the guilt of the petitioner or do not leave any room for reasonable doubt. In the present case, it cannot be said that the prosecution has succeeded in establishing the charge against the petitioner on the basis of circumstantial evidence as the evidence relied upon by the prosecution is neither conclusive nor has any nexus of material to petitioner's conviction under Section 302 read with Section 34 IPC and cannot be upheld. The petitioner did not have a fair trial at the General Court Martial as such the verdict of the General Court Martial relating to the guilt dated 21.1.1975 is liable to be quashed. The evidence of exculpatory confession of co-accused Isa Nand Dubey and the circumstances on record against the petitioner being seen entering the jungle with his so-called accomplices and then coming out of the jungle in the same manner, hearing of two gun shots and running away of other two co-accused including Isa Nand Dubey are wholly insufficient inasmuch as running away will be a natural reflex activity of any person who will happen to see such a situation. If there is no pre-plan, their running away from the spot does not prove any pre-meeting of minds. The evidence, therefore, is without any basis and no inference of any pre-concert or any prior meeting of minds is deducible. There is evidence of the initial proceedings that the guilt of these accused established from the summary of evidence. The Court is at a loss to find complete absence of any reason for the Commanding Officer Western Command to reopen the case and direct a General Court Martial. The respondents have also not brought any material on record to establish any cogent reasons which impelled the said officer to hold a General Court Martial overruling completely the preliminary enquiry report which was also confirmed by the immediate superior officer.
33. The findings returned by this Court in the case of Isa Nand Dubey referred to above in this judgment squarely apply to the case of this petitioner as well. As a matter of fact the petitioner stands on a much better footing than Isa Nand Dubey.
34. In so far as the question of circumstantial evidence is concerned, it could only be made a basis for conviction if there is proper link between the crime and the accused established. In the instant case, the conviction of the accused is based on circumstantial evidence the chain on which is not at all complete and many links are missing. The intervening circumstances and evidence given before the General Court Martial did not point out to the accused only as stated earlier in the body of the judgment.
35. In Ashok Kumar Chatterjee v. State of Madhya Pradesh, JT 1989 (3) SC 451, the Apex Court considering a catena of decisions, held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :-
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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 committed by the accused and none else and;
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on 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.
36. From the above, it is clear that the law to evaluate circumstances is that the chain of events must be complete and there should not be any snag in the chain so as to cast any doubt in the minds of the Court. The chain so formed the circumstances must be so close that no other conclusion than the guilt of the accused could supervene it.
37. In the instant case, there being a number of loopholes in the evidence of the prosecution and the fact that the witnesses had been coached or tutored by the police, though they had not seen the incident, no case could have been made out by the prosecution as there was no independent evidence against the accused/petitioner. The evidence of the witnesses tried to be relied upon was so poor in quality that it cannot find favour with a man of average reason. No conviction can be rested on conjectures and surmises or pre-determined motions. Perversity has no part to play in doing so. The rule of law does not permit even a non-judicial body/any such Court Sanguine principles cannot be allowed to be given a go-bye in a case, where life and liberty of a citizen is involved.
38. The question whether the trial in a particular case is vitiated on account of delay can be determined on consideration of all relevant aspects contributing to the delay. There is no empirical formula of universal application for this purpose.
39. So far as the delay, in lodging the FIR in the present case is concerned, admittedly the FIR was lodged the next day at about 2-00 p.m., whereas, gruesome murders were alleged to have been committed a day prior at about 4.30 p.m. The Police Station was on 3 Kms. away from the place of incident. No reason muchless any cogent reason was given for the delay in lodging the FIR. Delay in lodging the FIR in this case assumes significance as it appears that time intervened was used to implicate the petitioner and there is reasonable doubt that some other persons may have been responsible for the crime. It is also probable that these bodies may have been discovered on the next morning and everything was cooked up. Since, this area was used by army personnel to limit. No one would have been bothered by the gun shot report at the relevant moment. The delay in lodging the FIR, is, thus, fatal in this case, as from the record it appears that all sorts of methods have been resorted to by the Police to teach the witnesses and extract exculpatory confession from the co-accused.
40. This Court by judgment and order dated 31.10.1985 passed by the Bench headed by Hon'ble B.N. Sapru, J., and judgment and order dated 6.8.1997, passed by Hon'ble Sudhir Narain, J., had summoned the record but no record was ever brought or produced by the Counsel for the Central Government. He does not deny that the writ petitions filed by Isa Nand Dubey and Satya Deo Giri, co-accused have been allowed by this Court as circumstantial evidence proving the guilt of the accused to the hilt could not be brought out.
41. In the instant case, inspite of the order of this Court for producing the records, it was not produced. An adverse inference can be easily be, therefore, deducible in the case. Generally, this Court has the same power as that of a trial Court while examining the evidence in an appeal against acquittal. The discrepancies in this case, in the circumstantial evidence are not minor. There are glaring contradictions, inconsistencies, exaggerations and embellishments in the prosecution story based purely on circumstantial evidence. The chain of events is not complete and impregnable. It is, therefore, fatal to the prosecution story. The evidence given by witnesses PW-12, PW-19 and PW-20 relied upon by the prosecution is not credible. The credibility of the eye-witnesses, who did not see the occurrence of the crime or even, the facial features of the accused cannot be used to corroborate the circumstantial evidence. The nature of the gun shot wounds i.e., whether they had been caused from near or far, has not come on record and the deceased could have been shot by other person also is not wholly excluded. The natural reaction of the accused seen going away from near the site of the incident for any one could be a natural re-action. An accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, howsoever, strong it may be, cannot take the place of legal proof. The essential ingredients to prove the guilt of an accused by circumstantial evidence have to be proved beyond reasonable doubt. Failure to explain inculpate circumstances will go in favour of the accused, in the instant case, where the witnesses have been procured and tutored and relevant documents and evidence have not been considered in their correct perspective, this Court has first to ascertain whether the prosecution has come out with true facts and what would be the impact of such allegations on the very proof of existence of these circumstances.
42. From the record of the case and the circumstances and evidence, no case could be made out or proved against the petitioner. The confessional statement of the petitioner cannot be an additional evidence. The version of the prosecution, even, if it is accepted, fails to connect the petitioner with the crime at all and is insufficient. The most important connecting links in the circumstantial evidence relied upon are missing and as such his conviction is not only bad and against the evidence on record but, is also illegal. No circumstances have also been brought vide statement of G.P. Varghese (PW-11), whose evidence was allegedly recorded by the Sub-Inspector, when he had not given such evidence.
43. From all these aforesaid reasons. I am of the opinion that the circumstances from which conclusion of guilt is to be drawn are not fully established against the petitioner and are not consistent with the hypothesis of the guilt of the accused. They are not of a conclusive nature and do not show, that in all human probability the offence must have been committed by the accused. The circumstances, in this case, do not point out the guilt of the accused with reasonable definiteness. The case of the prosecution regarding common intention and circumstantial evidence is also not proved.
44. In these circumstances, the Court has no other option but to hold that the accused/petitioner Khem Chand is not guilty of the offence attributed to him and cannot be convicted on the basis of circumstantial evidence brought on the record. His conviction by the General Court Martial cannot be upheld. The writ petition deserves to be allowed and the petitioner is entitled to acquittal.
45. Since, the writ petition is being, allowed on the first ground itself that there is no circumstantial evidence against the accused/petitioner and exculpatory confession of Isa Nand Dubey cannot be read against the petitioner and the prosecution completely failed to establish any basis by which the ingredients of Section 34 IPC were attracted, the question of Army having territorial jurisdiction in the matter is not being decided in this case, though, it too apparently has force.
46. No other point has been raised by the Counsel for the respondents.
47. The writ petition succeeds and is allowed with costs. The impugned order/verdict of the General Court Martial dated 21.1.1975 convicting and sentencing the petitioner to life imprisonment is hereby quashed. Consequential order of the Chief of the Army Staff dated 25.2.1975, rejecting the petitioner's representation is also quashed as a consequence of quashing of the impugned order/verdict dated 21.1.1975. He is acquitted. The petitioner, who is in custody, shall be released forthwith unless required in any other case.