Paragraph numbers below are the court’s original numbering, recovered from the source text.
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: “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 RAVI SHARMA v. STATE (GOVERNMENT OF NCT OF DELHI) AND ANR. [M. M. SUNDRESH, J.] 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 (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.
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 RAVI SHARMA v. STATE (GOVERNMENT OF NCT OF DELHI) AND ANR. [M. M. SUNDRESH, J.] 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.
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. Ankit Gyan Appeals allowed. (Assisted by : Aarsh Choudhary, LCRA)