2023 INSC 678 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 465 OF 2017

KAMAL ...APPELLANT(S)

VERSUS

STATE (NCT OF DELHI) ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. OF 2023

[Arising out of SLP(Crl.) No. 6213 of 2021]

J U D G M E N T

B.R. GAVAI, J.

1. Leave granted in appeal arising out of SLP(Crl.) No.

6213 of 2021.

2. The appeals challenge the judgment and order dated 5

th

August 2014 passed by the High Court of Delhi at New Delhi

in Criminal Appeal Nos. 1242, 936 and 1136 of 2013 ,

thereby affirming the judgment and order dated 17

th May

2013 passed by the Additional Sessions Judge-II (North-

West), Rohini Courts, Delhi (hereinafter referred to as the

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‘trial court’), vide which the trial court convicted the original

three accused for the offence punishable under Section 302

read with Section 34 of the Indian Penal Code , 1860

(hereinafter referred to as ‘IPC’) and sentenced them to

undergo imprisonment for life.

3. The prosecution story, shorn of details, is as under:

3.1 On 10

th September 2009 at around 04.15 pm,

complainant-Surat Singh, brother of the deceased

Hoshiyar Singh, came to the house of the deceased and

found him lying dead on the cot. In the meantime, his

elder brother Jai Singh (PW-20) also reached the spot.

The deceased was taken to the hospital where he was

declared dead.

3.2 The First Information Report (for short, ‘FIR’) came to be

lodged expressing suspicion on Prem Singh, son of the

deceased, since he had a property dispute with the

deceased. It is the prosecution case that on earlier

occasions, the accused had given beatings to the

deceased and had also threatened to kill him.

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3.3 It is the prosecution case that Prem Singh fled away

from the scene of incident and was apprehended on 12

th

September 2009. During interrogation, he revealed the

names of his associates Kamal Kishore and Manoj, the

present appellants. Thereafter, the appellants were also

apprehended. At the instance of accused Kamal

Kishore, one rusted iron rod was recovered. At the

instance of accused Manoj, a sweater was recovered

which was used to strangulate the deceased.

3.4 Upon completion of investigation, charge-sheet was filed

against all the three accused in the Court of Judicial

Magistrate, First class. Since the case was exclusively

triable by the Sessions Judge, the case was committed

to the Sessions Judge. The trial court, vide judgment

and order dated 17

th May 2013, convicted all the three

accused under Section 302 read with Section 34 of the

IPC and sentenced them to suffer rigorous

imprisonment for life and imposed a fine of Rs.50,000/-

each.

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3.5 All the three accused preferred appeals before the High

Court. By the impugned judgment and order dated 5

th

August 2014, the High Court dismissed all their

appeals. Hence, the present appeals.

4. We have heard Mr. R.K. Kapoor and Ms. K. Sarada Devi,

learned counsel appearing on behalf of the appellants, and

Ms. Sonia Mathur and Mr. A.K. Panda, learned Senior

Counsel appearing on behalf of the respondent.

5. Mr. Kapoor submitted that the present case is a case of

circumstantial evidence. It is submitted that unless the

prosecution establishes an unbroken link of circumstances,

conviction based upon circumstantial evidence is not

permissible.

6. Mr. Kapoor submitted that the prosecution mainly relies

on the testimony of Jai Singh (PW-20) and Naresh Kumar

(PW-21).

7. Ms. Mathur and Mr. Panda, on the contrary, submitted

that the High Court and the trial court have concurrently, on

proper appreciation of evidence, convicted the appellants. It

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is submitted that no interference is warranted in the present

appeals.

8. Insofar as Naresh Kumar (PW -21) is concerned, he

states that on the date of incident, at around 03.15 pm, he

saw that the accused Prem Singh was present in his vehicle

Toyota Qualis in front of the room of deceased Hoshiyar

Singh, and was pressing the accelerator of his vehicle

continuously and making the sound of the vehicle loud.

Upon being asked about the reason for the same, accused

Prem Singh replied that the vehicle was not starting. PW-21

further states that meanwhile, he saw two boys coming out of

the room of deceased Hoshiyar Singh. When PW -21 asked

the accused Prem Singh about those boys, he replied that

they were the tenants. PW-21 states that, thereafter, he went

towards his shop at Gopal Nagar.

9. Further, in the examination-in-chief, PW-21 states that

on 16

th September 2009, he was called by the police at the

house of the deceased Hoshiyar Singh and he went there and

saw that two persons, namely Manoj and Kamal Kishore ,

were in the custody of the police. PW-21 further states that

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the police had told him that they had committed the murder

of Hoshiyar Singh. This witness has been declared hostile,

and in the cross-examination by the Additional Public

Prosecutor (APP), he has identified these two persons to be

the persons who were seen by him coming out of the house

of Hoshiyar Singh. However, further in the cross -

examination by the APP, he has again admitted that he has

seen the accused persons in the Police Station on 12

th

September 2009 for the first time. He further admitted that

the police officials told him that there was a person namely

Kamal Kishore and also told him about the accused Manoj.

Another witness for the last seen theory is Jai Singh (PW-20),

younger brother of deceased Hoshiyar Singh. He has

deposed on similar lines as that of Naresh Kumar (PW-21).

10. The very presence of Jai Singh (PW-20) has been sought

to be demolished in the cross-examination. Though, in the

examination-in-chief, he states that he and Surat Singh had

carried the deceased to the hospital, he states that the

clothes of Surat Singh were soiled with blood but his clothes

were not soiled because it was Surat Singh who was actually

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lifting Hoshiyar Singh and he was only helping him with his

hands.

11. Though Jai Singh (PW-20) states that he had informed

the police about the description of the accused, i.e., he told

the police that one boy was fair and the other was having a

wheatish complexion, there is substantial improvement

inasmuch as his statement recorded under Section 161 of

the Criminal Procedure Code, 1973 does not contain such

description. He further states that his house is 40 feet away

from the room where the incident had taken place. He has

further admitted that there is one house situated between his

house and the house of Hoshiyar Singh. As such, the very

presence of this accused appears to be doubtful.

12. It is pertinent to note that the learned Judges of the

High Court have themselves noted that Naresh Kumar (PW -

21), in his cross-examination, has stated that he was shown

Kamal Kishore and Manoj on 12

th September 2009 in the

Police Station where Kavita and Jai Singh were also present

and therefore, the refusal by them for Test Identification

Parade (TIP) was justified. The High Court goes on to observe

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that the witnesses having identified the appellants in the

dock is sufficient to hold that they have been duly identified

by the witnesses and prove the guilt of the accused.

13. We fail to appreciate the correctness of this finding. If

the accused are already shown to the witnesses in the Police

Station, then the sanctity of TIP before the court is doubtful.

14. The other circumstance on which the prosecution relies

are the Call Detail Records (CDRs). The courts below have

relied on the circumstance that when the incident had

occurred, the identification of the CDRs of the mobile used by

the accused Manoj and Kamal Kishore would show that their

location was at the place of incident.

15. Firstly, it is to be noted that one of the mobile numbers

9278453468 alleged to have been used by accused Manoj is

not in the name of Manoj but one Ashok Kumar, son of Shri

Krishan Kumar, resident of Subhash Nagar, Kanpur. No

evidence is placed on record to show as to how the said SIM

came to be in possession of the accused Manoj. Apart from

that, if at the time of the incident both of them were at the

same place and according to the prosecution inside the

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house of the deceased Hoshiyar Singh, and they were talking

to each other on telephone, this itself creates a doubt on the

prosecution version.

16. Undisputedly, the present case is a case which rests on

circumstantial evidence. The law with regard to conviction

based upon circumstantial evidence is very well crystalised in

the case of Sharad Birdhichand Sarda v. State of

Maharashtra

1.

17. We may gainfully refer to the following observations of

this Court in the case of Sharad Birdhichand Sarda

(supra):

“151. It is well settled that the prosecution must

stand or fall on its own legs and it cannot derive any

strength from the weakness of the defence. This is

trite law and no decision has taken a contrary view.

What some cases have held is only this: where

various links in a chain are in themselves complete,

then a false plea or a false defence may be called

into aid only to lend assurance to the court. In other

words, before using the additional link it must be

proved that all the links in the chain are complete

and do not suffer from any infirmity. It is not the

law that where there is any infirmity or lacuna in

the prosecution case, the same could be cured or

supplied by a false defence or a plea which is not

accepted by a court.

…….

1

(1984) 4 SCC 116

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153. A close analysis of this decision would show

that the following conditions must be fulfilled

before a case against an accused can be said to be

fully established:

(1) the circumstances from which the

conclusion of guilt is to be drawn

should be fully established.

It may be noted here that this Court indicated

that the circumstances concerned “must or

should” and not “may be” established. There is

not only a grammatical but a legal distinction

between “may be proved” and “must be or should

be proved” as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra [(1973)

2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ

1783] where the observations were made: [SCC

para 19, p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that

the accused must be and not

merely may be guilty before a court can

convict and the mental distance

between ‘may be’ and ‘must be’ is long

and divides vague conjectures from

sure conclusions.”

(2) the facts so established should be

consistent only with the hypothesis of

the guilt of the accused, that is to say,

they should not be explainable on any

other hypothesis except that the

accused is guilty,

(3) the circumstances should be of a

conclusive nature and tendency,

(4) they should exclude every possible

hypothesis except the one to be proved,

and

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(5) there must be a chain of evidence so

complete as not to leave any reasonable

ground for the conclusion consistent

with the innocence of the accused and

must show that in all human

probability the act must have been

done by the accused.

154. These five golden principles, if we may say

so, constitute the panchsheel of the proof of a

case based on circumstantial evidence.”

18. It can thus be seen that this Court has held that the

circumstances from which the conclusion of guilt is to be

drawn should be fully established. It has been held that the

circumstances concerned “must or should” and not “may be”

established. It has been held that there is not only a

grammatical but a legal distinction between “may be proved”

and “must be or should be proved”. It has been held that 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. It has been held that the

circumstances should be of a c onclusive nature and

tendency and they should exclude every possible hypothesis

except the one sought to be proved, and that there must be a

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chain of evidence so complete so 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.

19. It is a settled principle of law that however strong a

suspicion may be, it cannot take place of a proof beyond

reasonable doubt. In the light of these guiding principles, we

will have to consider the present case.

20. We find that the prosecution has utterly failed to prove

the case as they need to prove the incriminating

circumstances beyond reasonable doubt. The evidence with

regard to last seen theory is totally unreliable. The evidence

regarding the CDRs also is one which does not inspire any

confidence. As such, we find that the appeals deserve to be

allowed.

21. In the result, the appeals are allowed. The judgment

and order dated 5

th August 2014 passed by the High Court of

Delhi at New Delhi in Criminal Appeal Nos. 1242, 936 and

1136 of 2013, and the judgment and order dated 17

th May

2013 passed by the trial court are quashed and set aside.

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22. The appellants are acquitted of all the charges levelled

against them. They are directed to be set at liberty if not

required in any other case. Bail bonds of the appellants shall

stand discharged.

23. Pending application(s), if any, shall stand disposed of.

….……..….......................J.

[B.R. GAVAI]

……………..….........................J.

[PRASHANT KUMAR MISHRA ]

NEW DELHI;

AUGUST 07, 2023.