ITEM NO.1503 COURT NO.5 SECTION II-C

(FOR JUDGMENT)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 410-411/2015

RAVI SHARMA Appellant(s)

VERSUS

STATE(GOVERNMENT OF N.C.T. OF DELHI) & ANR. Respondent(s)

([HEARD BY: HON. ABHAY S. OKA AND HON. M.M. SUNDRESH, JJ.]

IA No. 3780/2015 - GRANT OF BAIL

IA No. 3782/2015 - SUSPENSION OF SENTENCE

Date : 11-07-2022 These appeals were called on for pronouncement of

judgment today.

For Appellant(s)

Mr. Mohit D. Ram, AOR

For Respondent(s)

Mr. B. V. Balaram Das, AOR

Mr. Ashiesh Kumar, AOR

The Court pronounced the following

J U D G M E N T

Hon'ble Mr. Justice M.M. Sundresh pronounced the judgment for

the Bench comprising Hon'ble Mr. Justice Abhay S. Oka and His

Lordship.

The Bench allowed the appeals in terms of the signed

reportable judgment observing inter alia as under:

“20.On the aforesaid analysis, the order of conviction

rendered by the High Court of Delhi stands set aside,

by restoring the acquittal by the trial Court.

The appeals stand allowed.”

Pending applications stand disposed of.

(ASHA SUNDRIYAL) (POONAM VAID)

ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)

[Signed reportable judgment is placed on the file]

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 410-411 OF 2015

Ravi Sharma … Appellant

Versus

State (Government of NCT of Delhi) and Anr. … Respondents

J U D G M E N T

M. M. SUNDRESH, J.

1.An order of acquittal passed on a scrutiny of evidence before it by the

District and Sessions Judge, North-East District, Karkardooma Court, Delhi

in S.C. No.6/12 got overturned by the impugned judgment of the Division

Bench of the High Court of Delhi based upon the existence of motive along

with the recovery made under Section 27 of the Indian Evidence Act (for

short ‘the Act’).

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FACTS IN BRIEF:

2.On 30.05.2011, the first information report was recorded on finding a dead

body. PW2, brother of the deceased, identified the body. Statements of both

PW1, father of the deceased and PW2 have been recorded, which did not

indicate any specific suspect. The Investigating Officer conducted the

inquest and prepared the map. On the next day, doubts were raised by PWs 1

and 2 pointing the finger of suspicion on the accused who happens to be a

friend of the deceased. Upon securing the accused, recovery of the material

in the form of firearm was made. Both the observation Mahazar along with

the sketch and the recovery Mahazar under Section 27 of the Act were

signed by the police officers with the exception that the latter one was signed

by PW2 as well.

3.The trial Court disbelieved the evidence of PWs 1 and 2; PW2 with

reference to the motive, and PW1 on the ground that it did not support the

case of the prosecution. It raised a serious suspicion over the recovery made

under Section 27 of the Act. From the place of occurrence, recoveries were

made by way of a wooden piece of the butt of a gun along with the

cartridges. Of this, four cartridges were found in the pocket of the deceased.

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4.Having found that the motive has not been proved and the recovery being

doubtful despite the presence of scores of independent witnesses on both

occasions, the Court in the first instance deemed it appropriate to extend the

benefit of doubt in favour of the appellant.

5.The Division Bench of the Delhi High Court, despite concurring with the

views expressed by the trial Court qua the last seen theory, nonetheless

accepted the evidence of PW2 with respect to the motive coupled with the

recoveries made. Though the trial Court eschewed the evidence of the

Ballistic Expert, which remained inconclusive with respect to the bullet

which caused the death, relatable to the gun belonging to the appellant, the

High Court felt that it could be relied upon. Incidentally, it was held that the

wooden piece of the butt did belong to the appellant. Therefore, the

circumstances forming a chain were sufficient enough to point out guilt

towards him and accordingly the High Court rendered a conviction.

6.Learned counsel, Mr. Krishan Kumar, appearing for the appellant submitted

that the well-merited judgment of the trial Court ought not to have been

reversed by the High Court by replacing its own views. Having accepted the

views of the trial Court as a plausible one, the conviction ought not to have

been rendered. There was no link in the circumstantial chain as held by the

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High Court. Motive has not been established in the manner known to law. In

a case of circumstantial evidence, motive assumes more importance. The

opinion of the Ballistic Expert was rightly taken note of by the trial Court

and in fact used in favour of the appellant, being inconclusive. The manner

in which recoveries were made at the first instance during the inspection of

the place of occurrence and thereafter at the instance of the appellant were

rightly doubted by the trial court. The suspicion created by the trial Court

has not been dispelled. As there is no perversity in the decision of the trial

Court, the reversal at the hands of the High Court is unwarranted.

7.Ms. Aishwarya Bhati learned Additional Solicitor General appearing for the

respondents submitted that the power of the High Court in deciding the

appeal is rather wide. The High Court may reappreciate the evidence which

in fact it did. There is no perversity in the cogent reasons rendered by the

High Court. PW2 has deposed about the motive due to enmity between the

deceased and the appellant. This along with the recoveries made would form

sufficient grounds to convict the appellant.

8.Before venturing into the merits of the case, we would like to reiterate the

scope of Section 378 of the Code of Criminal Procedure (for short ‘Cr.P.C.’)

while deciding an appeal by the High Court, as the position of law is rather

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settled. We would like to quote the relevant portion of a recent judgment of

this Court in Jafarudheen and Others v. State of Kerala (2022 SCC Online

SC 495) as follows:

25. While dealing with an appeal against acquittal by invoking Section 378

of the Cr.PC, the Appellate Court has to consider whether the Trial Court's

view can be termed as a possible one, particularly when evidence on record

has been analyzed. The reason is that an order of acquittal adds up to the

presumption of innocence in favour of the accused. Thus, the Appellate

Court has to be relatively slow in reversing the order of the Trial Court

rendering acquittal. Therefore, the presumption in favour of the accused

does not get weakened but only strengthened. Such a double presumption

that enures in favour of the accused has to be disturbed only by thorough

scrutiny on the accepted legal parameters.

9.This Court in the aforesaid judgment has noted the following decision while

laying down the law:

Precedents:

Mohan alias Srinivas alias Seena alias Tailor Seena v. State of Karnataka,

[2021 SCC OnLine SC 1233] as hereunder:

“20. Section 378 CrPC enables the State to prefer an appeal against an order

of acquittal. Section 384 CrPC speaks of the powers that can be exercised by

the Appellate Court. When the trial court renders its decision by acquitting

the accused, presumption of innocence gathers strength before the Appellate

Court. As a consequence, the onus on the prosecution becomes more

burdensome as there is a double presumption of innocence. Certainly, the

Court of first instance has its own advantages in delivering its verdict, which

is to see the witnesses in person while they depose. The Appellate Court is

expected to involve itself in a deeper, studied scrutiny of not only the

evidence before it, but is duty bound to satisfy itself whether the decision of

the trial court is both possible and plausible view. When two views are

possible, the one taken by the trial court in a case of acquittal is to be

followed on the touchstone of liberty along with the advantage of having

seen the witnesses. Article 21 of the Constitution of India also aids the

accused after acquittal in a certain way, though not absolute. Suffice it is to

state that the Appellate Court shall remind itself of the role required to play,

while dealing with a case of an acquittal.

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21. Every case has its own journey towards the truth and it is the Court's

role undertake. Truth has to be found on the basis of evidence available

before it. There is no room for subjectivity, nor the nature of offence affects

its performance. We have a hierarchy of courts in dealing with cases. An

Appellate Court shall not expect the trial court to act in a particular way

depending upon the sensitivity of the case. Rather it should be appreciated if

a trial court decides a case on its own merit despite its sensitivity.

22. At times, courts do have their constraints. We find, different decisions

being made by different courts, namely, trial court on the one hand and the

Appellate Courts on the other. If such decisions are made due to institutional

constraints, they do not augur well. The district judiciary is expected to be

the foundational court, and therefore, should have the freedom of mind to

decide a case on its own merit or else it might become a stereotyped one

rendering conviction on a moral platform. Indictment and condemnation

over a decision rendered, on considering all the materials placed before it,

should be avoided. The Appellate Court is expected to maintain a degree of

caution before making any remark.

23. This court, time and again has laid down the law on the scope of inquiry

by an Appellate court while dealing with an appeal against acquittal under

Section 378 CrPC. We do not wish to multiply the aforesaid principle except

placing reliance on a recent decision of this court in Anwar Ali v. State of

Himanchal Pradesh, (2020) 10 SCC 166:

14.2. When can the findings of fact recorded by a court be held to be

perverse has been dealt with and considered in paragraph 20 of the

aforesaid decision, which reads as under: [Babu v. State of Kerala,

[(2010) 9 SCC 189]:

“20. The findings of fact recorded by a court can be held to be

perverse if the findings have been arrived at by ignoring or

excluding relevant material or by taking into consideration

irrelevant/inadmissible material. The finding may also be said to

be perverse if it is “against the weight of evidence”, or if the

finding so outrageously defies logic as to suffer from the vice of

irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn.

[(1984) 4 SCC 635], Excise & Taxation Officer-cum-Assessing

Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312],

Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665],

Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501], Aruvelu v.

State, [(2009) 10 SCC 206] and Gamini Bala Koteswara Rao v.

State of A.P. [(2009) 10 SCC 636]).”

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It is further observed, after following the decision of this Court

in Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10], that if

a decision is arrived at on the basis of no evidence or thoroughly

unreliable evidence and no reasonable person would act upon it,

the order would be perverse. But if there is some evidence on

record which is acceptable and which could be relied upon, the

conclusions would not be treated as perverse, and the findings

would not be interfered with.

14.3. In the recent decision of Vijay Mohan Singh v. State of

Karnataka, [(2019) 5 SCC 436], this Court again had an occasion to

consider the scope of Section 378 CrPC and the interference by the

High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC

OnLine Kar 10732] in an appeal against acquittal. This Court

considered a catena of decisions of this Court right from 1952

onwards. In para 31, it is observed and held as under:

“31. An identical question came to be considered before this

Court in Umedbhai Jadavbhai v. State of Gujarat, [(1978) 1 SCC

228]. In the case before this Court, the High Court interfered

with the order of acquittal passed by the learned trial court on

reappreciation of the entire evidence on record. However, the

High Court, while reversing the acquittal, did not consider the

reasons given by the learned trial court while acquitting the

accused. Confirming the judgment of the High Court, this Court

observed and held in para 10 as under:

‘10. Once the appeal was rightly entertained against the

order of acquittal, the High Court was entitled to

reappreciate the entire evidence independently and come

to its own conclusion. Ordinarily, the High Court would

give due importance to the opinion of the Sessions Judge

if the same were arrived at after proper appreciation of the

evidence. This rule will not be applicable in the present

case where the Sessions Judge has made an absolutely

wrong assumption of a very material and clinching aspect

in the peculiar circumstances of the case.’

31.1. In Sambasivan v. State of Kerala, [(1998) 5 SCC 412], the

High Court reversed the order of acquittal passed by the learned

trial court and held the accused guilty on reappreciation of the

entire evidence on record, however, the High Court did not

record its conclusion on the question whether the approach of

the trial court in dealing with the evidence was patently illegal

or the conclusions arrived at by it were wholly untenable.

Confirming the order passed by the High Court convicting the

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accused on reversal of the acquittal passed by the learned trial

court, after being satisfied that the order of acquittal passed by

the learned trial court was perverse and suffered from

infirmities, this Court declined to interfere with the order of

conviction passed by the High Court. While confirming the

order of conviction passed by the High Court, this Court

observed in para 8 as under:

‘8. We have perused the judgment under appeal to

ascertain whether the High Court has conformed to the

aforementioned principles. We find that the High Court

has not strictly proceeded in the manner laid down by this

Court in Doshi case [Ramesh Babulal Doshi v. State of

Gujarat, (1996) 9 SCC 225] viz. first recording its

conclusion on the question whether the approach of the

trial court in dealing with the evidence was patently illegal

or the conclusions arrived at by it were wholly untenable,

which alone will justify interference in an order of

acquittal though the High Court has rendered a well-

considered judgment duly meeting all the contentions

raised before it. But then will this non-compliance per se

justify setting aside the judgment under appeal? We think,

not. In our view, in such a case, the approach of the court

which is considering the validity of the judgment of an

appellate court which has reversed the order of acquittal

passed by the trial court, should be to satisfy itself if the

approach of the trial court in dealing with the evidence

was patently illegal or conclusions arrived at by it are

demonstrably unsustainable and whether the judgment of

the appellate court is free from those infirmities; if so to

hold that the trial court judgment warranted interference.

In such a case, there is obviously no reason why the

appellate court's judgment should be disturbed. But if on

the other hand the court comes to the conclusion that the

judgment of the trial court does not suffer from any

infirmity, it cannot but be held that the interference by the

appellate court in the order of acquittal was not justified;

then in such a case the judgment of the appellate court has

to be set aside as of the two reasonable views, the one in

support of the acquittal alone has to stand. Having regard

to the above discussion, we shall proceed to examine the

judgment of the trial court in this case.’

31.2. In K. Ramakrishnan Unnithan v. State of Kerala, [(1999) 3

SCC 309], after observing that though there is some substance in

the grievance of the learned counsel appearing on behalf of the

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accused that the High Court has not adverted to all the reasons

given by the trial Judge for according an order of acquittal, this

Court refused to set aside the order of conviction passed by the

High Court after having found that the approach of the Sessions

Judge in recording the order of acquittal was not proper and the

conclusion arrived at by the learned Sessions Judge on several

aspects was unsustainable. This Court further observed that as

the Sessions Judge was not justified in discarding the

relevant/material evidence while acquitting the accused, the

High Court, therefore, was fully entitled to reappreciate the

evidence and record its own conclusion. This Court scrutinised

the evidence of the eyewitnesses and opined that reasons

adduced by the trial court for discarding the testimony of the

eyewitnesses were not at all sound. This Court also observed

that as the evaluation of the evidence made by the trial court was

manifestly erroneous and therefore it was the duty of the High

Court to interfere with an order of acquittal passed by the

learned Sessions Judge.

31.3. In Atley v. State of U.P., [AIR 1955 SC 807], in para 5,

this Court observed and held as under:

‘5. It has been argued by the learned counsel for the

appellant that the judgment of the trial court being one of

acquittal, the High Court should not have set it aside on

mere appreciation of the evidence led on behalf of the

prosecution unless it came to the conclusion that the

judgment of the trial Judge was perverse. In our opinion, it

is not correct to say that unless the appellate court in an

appeal under Section 417 CrPC came to the conclusion

that the judgment of acquittal under appeal was perverse it

could not set aside that order.

It has been laid down by this Court that it is open to the

High Court on an appeal against an order of acquittal to

review the entire evidence and to come to its own

conclusion, of course, keeping in view the well-

established rule that the presumption of innocence of the

accused is not weakened but strengthened by the judgment

of acquittal passed by the trial court which had the

advantage of observing the demeanour of witnesses whose

evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide

powers of appreciation of evidence in an appeal against an

order of acquittal as in the case of an appeal against an

order of conviction, subject to the riders that the

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presumption of innocence with which the accused person

starts in the trial court continues even up to the appellate

stage and that the appellate court should attach due weight

to the opinion of the trial court which recorded the order

of acquittal.

If the appellate court reviews the evidence, keeping those

principles in mind, and comes to a contrary conclusion,

the judgment cannot be said to have been vitiated. (See in

this connection the very cases cited at the Bar, namely,

Surajpal Singh v. State [1951 SCC 1207]; Wilayat Khan v.

State of U.P. [1951 SCC 898]. In our opinion, there is no

substance in the contention raised on behalf of the

appellant that the High Court was not justified in

reviewing the entire evidence and coming to its own

conclusions.’

31.4. In K. Gopal Reddy v. State of A.P., [(1979) 1 SCC 355],

this Court has observed that where the trial court allows itself to

be beset with fanciful doubts, rejects creditworthy evidence for

slender reasons and takes a view of the evidence which is but

barely possible, it is the obvious duty of the High Court to

interfere in the interest of justice, lest the administration of

justice be brought to ridicule.”

N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder:—

“20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel

appearing for the appellant that the view taken by the trial court is a

“possible view”, having regard to the evidence on record. It is submitted that

the trial court has recorded cogent and valid reasons in support of its

findings for acquittal. Under Section 378 CrPC, no differentiation is made

between an appeal against acquittal and the appeal against conviction. By

considering the long line of earlier cases this Court in the judgment in

Chandrappa v. State of Karnataka, [(2007) 4 SCC 415] has laid down the

general principles regarding the powers of the appellate Court while dealing

with an appeal against an order of acquittal. Para 42 of the judgment which

is relevant reads as under: (SCC p. 432)

“42. From the above decisions, in our considered view, the following

general principles regarding powers of the appellate court while

dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and

reconsider the evidence upon which the order of acquittal is

founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation,

restriction or condition on exercise of such power and an

appellate court on the evidence before it may reach its own

conclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial and compelling

reasons”, “good and sufficient grounds”, “very strong

circumstances”, “distorted conclusions”, “glaring mistakes”, etc.

are not intended to curtail extensive powers of an appellate court

in an appeal against acquittal. Such phraseologies are more in

the nature of “flourishes of language” to emphasise the

reluctance of an appellate court to interfere with acquittal than to

curtail the power of the court to review the evidence and to

come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case

of acquittal, there is double presumption in favour of the

accused. Firstly, the presumption of innocence is available to

him under the fundamental principle of criminal jurisprudence

that every person shall be presumed to be innocent unless he is

proved guilty by a competent court of law. Secondly, the

accused having secured his acquittal, the presumption of his

innocence is further reinforced, reaffirmed and strengthened by

the trial court.

(5) If two reasonable conclusions are possible on the basis of the

evidence on record, the appellate court should not disturb the

finding of acquittal recorded by the trial court.”

21. Further in the judgment in Murugesan v. State, [(2012) 10 SCC 383]

relied on by the learned Senior Counsel for the appellant, this Court has

considered the powers of the High Court in an appeal against acquittal

recorded by the trial court. In the said judgment, it is categorically held by

this Court that only in cases where conclusion recorded by the trial court is

not a possible view, then only the High Court can interfere and reverse the

acquittal to that of conviction. In the said judgment, distinction from that of

“possible view” to “erroneous view” or “wrong view” is explained. In clear

terms, this Court has held that if the view taken by the trial court is a

“possible view”, the High Court not to reverse the acquittal to that of the

conviction.

xxx xxx xxx

23. Further, in Hakeem Khan v. State of M.P., [(2017) 5 SCC 719] this

Court has considered the powers of the appellate court for interference in

cases where acquittal is recorded by the trial court. In the said judgment it is

held that if the “possible view” of the trial court is not agreeable for the

High Court, even then such “possible view” recorded by the trial court

cannot be interdicted. It is further held that so long as the view of the trial

11

court can be reasonably formed, regardless of whether the High Court

agrees with the same or not, verdict of the trial court cannot be interdicted

and the High Court cannot supplant over the view of the trial court. Para 9

of the judgment reads as under; (SCC pp.722-23)

“9. Having heard the learned counsel for the parties, we are of the

view that the trial court's judgment is more than just a possible view

for arriving at the conclusion of acquittal, and that it would not be safe

to convict seventeen persons accused of the crime of murder i.e. under

Section 302 read with Section 149 of the Penal Code. The most

important reason of the trial court, as has been stated above, was that,

given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would

be dark, and, therefore, identification of seventeen persons would be

extremely difficult. This reason, coupled with the fact that the only

independent witness turned hostile, and two other eyewitnesses who

were independent were not examined, would certainly create a large

hole in the prosecution story. Apart from this, the very fact that there

were injuries on three of the accused party, two of them being deep

injuries in the skull, would lead to the conclusion that nothing was

premeditated and there was, in all probability, a scuffle that led to

injuries on both sides. While the learned counsel for the respondent

may be right in stating that the trial court went overboard in stating

that the complainant party was the aggressor, but the trial court's

ultimate conclusion leading to an acquittal is certainly a possible view

on the facts of this case. This is coupled with the fact that the presence

of the kingpin Sarpanch is itself doubtful in view of the fact that he

attended the Court at some distance and arrived by bus after the

incident took place.”

24. By applying the abovesaid principles and the evidence on record in the

case on hand, we are of the considered view that having regard to material

contradictions which we have already noticed above and also as referred to

in the trial court judgment, it can be said that acquittal is a “possible view”.

By applying the ratio as laid down by this Court in the judgments which are

stated supra, even assuming another view is possible, same is no ground to

interfere with the judgment of acquittal and to convict the appellant for the

offence alleged. From the evidence, it is clear that when the Inspecting

Officer and other witnesses who are examined on behalf of the prosecution,

went to the office of the appellant-accused, the appellant was not there in the

office and office was open and people were moving out and in from the

office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11

that the currency and cellphone were taken out from the drawer of the table

by the appellant at their instance. There is also no reason, when the tainted

notes and the cellphone were given to the appellant at 5.45 p.m. no

recordings were made and the appellant was not tested by PW 11 till 7.00

p.m.”

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10.Applying the said principles and after going through the judgment rendered

by the trial Court as well as the High Court, we do feel that it is a case where

the High Court has not acted within the legal parameters.

11.In this connection, we would like to note the following paragraphs of the

High Court, wherein it did concur with the views of the trial Court with

respect to the last seen theory:

“12. It is from this cross-examination the learned Trial Court concludes that

the last seen evidence as deposed by Jawahar Singh is an after-thought and

in fact in retrospect when the family of the deceased had strong suspicion

that Ravi was the accused, statement dated May 30, 2011 was introduced by

the Police claiming him to be the last seen witness. A perusal of the cross

examination of Ashok can reasonably lead to the inference as has been

drawn by the learned Trial Court.

13. Inspector Vijay Sirotiya PW-14 the investigating officer in his cross

examination has stated that the father and brother of the deceased had

arrived at the spot around 7.30/7.45 AM, however at that point of time they

did not disclose the name of any person whom they could suspect as the

perpetrator of the murder as they were crying and were in a bad condition.

He stated that statement of Ashok and Jawahar Singh were recorded on the

same day i.e. May 30, 2011 somewhere in the afternoon after the body had

been subjected to post-mortem. In cross-examination he stated that the name

of the suspect had come in the statement without any further address of the

suspect and thus his house could not be visited at that point of time, though

the witnesses mentioned some Gali number as well as the house number but

since it was a Katcha colony it was difficult to locate the said address,

unless the address was specifically ascertained with the help of witness or

other sources.

14. In view of this cross-examination of Ashok Kumar and Vijay Sirotiya

we cannot hold that the finding of the learned Trial Court on the point that

the last seen evidence is not reliable is perverse. Though both views are

possible, however the view taken by the learned Trial Judge is also a

plausible view.

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12.Thus, when the last seen theory is found to be not true, there has to be much

more concrete and clinching evidence to implicate the appellant. PW1 is the

father of the deceased who not only deposed that there was no animosity

between the deceased and the appellant, but also that he did not know about

the past transaction.

13.Having accepted the views of the trial Court holding that the last seen theory

has not been proved, a conviction cannot be rendered on the basis of

evidence, which was rejected qua motive, through the mouth of PW2. The

trial Court gave its reasons for rejecting the evidence of PW2. It had the

advantage of seeing and assessing the demeanor of this witness, which the

High Court did not have. PW2 has stated that there was a money transaction

which led to a dispute between the accused and the deceased and that he had

assured the appellant that it would be repaid. This also occurred few days

before the date of occurrence. When we deal with a case of circumstantial

evidence, as aforesaid, motive assumes significance. Though, the motive

may pale into insignificance in a case involving eyewitnesses, it may not be

so when an accused is implicated based upon the circumstantial evidence.

This position of law has been dealt with by this Court in the case of Tarsem

Kumar v. Delhi Administration (1994) Supp 3 SCC 367 in the following

terms:

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“8. Normally, there is a motive behind every criminal act and that is why

investigating agency as well as the court while examining the complicity of

an accused try to ascertain as to what was the motive on the part of the

accused to commit the crime in question. It has been repeatedly pointed out

by this Court that where the case of the prosecution has been proved beyond

all reasonable doubts on basis of the materials produced before the court, the

motive loses its importance. But in a case which is based on circumstantial

evidence, motive for committing the crime on the part of the accused

assumes greater importance. Of course, if each of the circumstances proved

on behalf of the prosecution is accepted by the court for purpose of

recording a finding that it was the accused who committed the crime in

question, even in absence of proof of a motive for commission of such a

crime, the accused can be convicted. But the investigating agency as well as

the court should ascertain as far as possible as to what was the immediate

impelling motive on the part of the accused which led him to commit the

crime in question. …….”

14.We do find that there is no sufficient link to come to the irresistible

conclusion pointing the guilt only to the appellant. We do not wish to

multiply the settled position of law regarding the circumstantial evidence,

except to quote the following decision in Padala Veera Reddy v. State of

A.P., 1989 Supp (2) SCC 706:

“10. Before adverting to the arguments advanced by the learned Counsel,

we shall at the threshold point out that in the present case there is no direct

evidence to connect the accused with the offence in question and the

prosecution rests its case solely on circumstantial evidence. This Court in a

series of decisions has consistently 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

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(4) the circumstantial evidence in order to sustain conviction must be

complete and incapable of explanation of any other hypothesis than that

of the guilt of the accused and such evidence should not only be

consistent with the guilt of the accused but should be inconsistent with

his innocence. (See Gambhir v. State of Maharashtra [(1982) 2 SCC

351].”

15.However, once again, we would like to reiterate the settled position of law

that a mere suspicion, however, strong it may be, cannot be a substitute for

acceptable evidence, as held in Chandrakant Ganpat Sovitkar v. State of

Maharashtra, (1975) 3 SCC 16.

“16. ……It is well settled that no one can be convicted on the basis of

mere suspicion, however strong it may be. It also cannot be disputed

that when we take into account the conduct of an accused, his conduct

must be looked at in its entirety. …..”

16.Much reliance has been made on the recoveries made. When the observation

Mahazar was prepared along with the sketch and the inquest conducted,

admittedly, scores of persons were present. No independent witness was

made to sign and the evidence on behalf of the prosecution that they did not

volunteer to do so, cannot be accepted. A witness may not come forward to

adduce evidence at times when asked to act as an eyewitness. However,

when a large number of persons were available near the dead body, it is

incomprehensible as to how all of them refused to sign the documents

prepared by the police.

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17.Similarly, the trial Court rightly doubted the recovery under Section 27 of

the Act. There was no need to take PW2 and thereafter make him to sign.

There are a lot of contradictions in the evidence rendered. PW2 has stated

that many persons were available at the time of the recovery, but no

statement has been obtained from any of them. PW11, the Head Constable

says that the Investigating Officer PW14, did not ask any neighbor to join

the investigation. PW8, who is the Sub-Inspector of Police has deposed that

none was forthcoming. A similar statement was also made by the

Investigating Officer. There is a discrepancy on the mode of traveling to the

place from where the recovery under Section 27 of the Act was made, along

with the witnesses, namely PWs 2, 8, 11 and 14. While PW2 has stated that

the police team used a jeep and motorbike. The other witness has stated that

it was either motorbike or by foot, while one witness says that it was a

Gypsy. We do find contradictions with respect to the place of arrest followed

by the disclosure statement.

18.The report of the Ballistic Expert is obviously a scientific evidence in the

nature of an opinion. It is required to use this evidence along with the other

substantive piece of evidence available. The report is inconclusive with

respect to the firearm belonging to the appellant being used for committing

the offence.

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19.All the aforesaid aspects have been considered threadbare by the trial Court.

We do not find any perversity in it and the law presumes double presumption

in favour of the accused after a due adjudication by the trial Court. We do

believe that the High Court could have been slower in reversing the order of

acquittal rendered by the Court of First Instance.

20.On the aforesaid analysis, the order of conviction rendered by the High

Court of Delhi stands set aside, by restoring the acquittal by the trial Court.

The appeals stand allowed.

…….………………………J.

(ABHAY S. OKA)

.……………………………J.

(M.M. SUNDRESH)

New Delhi,

July 11, 2022

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