KAMALversusSTATE (NCT OF DELHI)

                   [2023] 11 S.C.R. 49 : 2023 INSC 678



                              CASE DETAILS

                                   KAMAL
                                       v.
                         STATE (NCT OF DELHI)
                     (Criminal Appeal No. 465 of 2017)
                             AUGUST 07, 2023
     [B. R. GAVAI AND PRASHANT KUMAR MISHRA, JJ.]

                               HEADNOTES

       Issue for consideration : In a prosecution case where father was found
dead by the complainant-brother of the deceased, and suspicion arose on the
son of the deceased on account of the property dispute between the father and
the son, and the son fled from the scene of incident and was apprehended two
days later, whether the courts below were justified in convicting the son u/s.
302/34 IPC and sentencing him to rigorous imprisonment for life.
      Penal Code, 1860 – s. 302 r/w 34 – Murder – Circumstantial
evidence and last seen theory – Conviction on basis of, by the courts
below – Correctness:
       Held : Failure of the prosecution to prove the case as they need to
prove the incriminating circumstances beyond reasonable doubt – Suspicion
howsoever strong, cannot take place of a proof beyond reasonable doubt –
Sanctity of test identification parade before the court doubtful since the accused
were already shown to the witnesses in the Police Station – Evidence with
regard to last seen theory totally unreliable – Evidence regarding the Call
Detail Records-CDRs does not inspire any confidence – Thus, the judgment
and order passed by the High Court as also the trial court quashed and set aside
– Appellants acquitted of all charges – Evidence. [Paras 13, 19, 20 and 21]
     Evidence – Circumstantial evidence – Conviction on basis of –
Conditions to be fulfilled:
      Held : Circumstances from which the conclusion of guilt is to be drawn
should be fully established – Facts so established should be consistent only
                                     49
50           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


with the hypothesis of the guilt of the accused, they should not be explainable
on any other hypothesis except that the accused is guilty – Circumstances
should be of a conclusive nature and tendency and they should exclude
every possible hypothesis except the one sought to be proved – There must
be a chain of evidence so complete so as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused. [Para 18]
      Evidence – Case of murder – Conviction on basis of strong
suspicion – Correctness of:
     Held : Suspicion howsoever strong, cannot take place of a proof
beyond reasonable doubt. [Para 19]
      Evidence – Last seen theory – Reliance upon:
      Held : Evidence with regard to last seen theory totally unreliable.
[Para 20]
      Evidence – Call Detail Records – Reliance upon:
     Held : Evidence regarding Call Detail Records does not inspire any
confidence. [Para 20]
      Test identification parade – Evidentiary value, when accused
already shown to the witnesses in the Police Station:
      Held : Sanctity of test identification parade before the court is
doubtful. [Para 13]

       LIST OF CITATIONS AND OTHER REFERENCES

       Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC
116 : [1985] 1 SCR 88 – relied on.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 465
of 2017.
      From the Judgment and Order dated 05.08.2014 of the High Court of Delhi
at New Delhi in CRLA No. 1136 of 2013.
      With
      Criminal Appeal No. 2295 of 2023.
                 KAMAL v. STATE (NCT OF DELHI)                                 51


       Appearances:
     Mrs. K. Sarada Devi, Ms. Kheyali Singh, R K Kapoor, Ms. Shweta
Kapoor, Ms. Sarabjeet Kaur, Rajat Kapoor, Advs. for the Appellant.
       Ms. Sonia Mathur, Sr. Adv., Shreekant Neelappa Terdal, Ms. Pratiksha
Mishra, Ms. Ronika Tater, Ms. Rupakshi Soni, Divik Mathur, Nikhil Chandra
Jaiswal, Simarjeet Singh Salooja, A.K.Panda, Ms. Sunita Sharma, Ms. Nidhi
Khanna, Navanjay Mahapatra, Noor Rampal, Dr. N. Visakamurthy, Advs.
for the Respondent.

        JUDGMENT/ORDER OF THE SUPREME COURT

                                JUDGMENT
       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 5th 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 17th
May 2013 passed by the Additional Sessions Judge-II (North-West), Rohini
Courts, Delhi (hereinafter referred to as the ‘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 10th 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.
52            SUPREME COURT REPORTS                          [2023] 11 S.C.R.


       3.3 It is the prosecution case that Prem Singh fled away from the
scene of incident and was apprehended on 12th 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 17th
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.
      3.5 All the three accused preferred appeals before the High Court. By
the impugned judgment and order dated 5th 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 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
                 KAMAL v. STATE (NCT OF DELHI)                              53
                        [B. R. GAVAI, J.]

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 16th
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 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 12th 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 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
54             SUPREME COURT REPORTS                         [2023] 11 S.C.R.


very presence of PW-20 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 12th 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 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 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 Maharashtra1.
       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
1    (1984) 4 SCC 116
                KAMAL v. STATE (NCT OF DELHI)                               55
                       [B. R. GAVAI, J.]

     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.
      …….
     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
56           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


     (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 conclusive nature and tendency and they should exclude every possible
hypothesis except the one sought to be proved, and that there must be a
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 5th 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 17th May 2013 passed by the trial court are quashed and
set aside.
                  KAMAL v. STATE (NCT OF DELHI)                            57
                         [B. R. GAVAI, J.]

      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.

Headnotes prepared by:                                         Appeals allowed.
Nidhi Jain