RAVINDER KUMARversusSTATE OF NCT OF DELHI

                 [2024] 3 S.C.R. 767 : 2024 INSC 211

                            Ravinder Kumar
                                    v.
                          State of NCT of Delhi
                     (Criminal Appeal No. 918 of 2024)
                                06 March 2024
                [B.R. Gavai* and Sandeep Mehta, JJ.]

                           Issue for Consideration
       1) Whether circumstantial evidence is sufficient to convict the
       accused; 2) Whether burden of proof u/s. 106 Evidence Act can
       be on accused before the prosecution proves its case; 3) Whether
       recovery pursuant to statement made u/s. 27 Evidence Act can
       be admissible, when recovery was from a place known to all and
       not exclusively within knowledge of maker.

                                  Headnotes
       Penal Code, 1860 – s. 302 - Conviction based on circumstantial
       evidence – Evidence Act, 1872 – ss. 106, 27 – Appellant’s wife
       found dead with throat slit – Appellant convicted by trial court for
       offences punishable under ss. 302, 304B/34, 498A/34 IPC – High
       Court set aside conviction under ss. 304B/34 but sustained under
       ss. 302, 498A/34 IPC – Prosecution relying on circumstantial
       evidence to sustain conviction under s. 302 – Courts below
       found: (i) plea of alibi without substance (ii) bloodstained clothes
       recovered at Appellant’s parental home (iii) English calendar with
       Appellant’s name found in the house (iv) Appellant created a
       scene in the house so as to make it seem like robbery.
       Held: (1) When prosecution case relies on circumstantial evidence,
       circumstances from which conclusion of guilt is to be drawn should
       be fully established – Accused ‘must be’ and not merely ‘may be’
       guilty – Facts so established should be consistent only with guilt
       of accused, not explainable on any another hypothesis – Chain of
       evidence must be so complete to show beyond reasonable doubt
       that act was committed by accused – (2) Before burden shifts on
       accused under s. 106 Evidence Act, prosecution has to establish
       before death occurred, deceased and accused were seen in the
       house- more so when accused raises specific plea of alibi – (3)
       For recovery to be admissible on statement made under S. 27

* Author
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       Evidence Act, recovery must be from place exclusively within
       knowledge of maker – In present case, recovery was from place
       accessible to all [Paras 8, 9, 10 11, 13, 17].

                                Case Law Cited
            Sharad Birdhichand Sarda v. State of Maharashtra
            [1985] 1 SCR 88 : (1984) 4 SCC 116 : 1984 INSC
            121 – relied on.
            Trimukh Maroti Kirkan v. State of Maharashtra [2006]
            Suppl. 7 SCR 156 : (2006) 10 SCC 681 : 2006 INSC
            691 – relied on.

                                  List of Acts
       Penal Code, 1860; Evidence Act, 1872.

                               List of Keywords
       Principles of Circumstantial evidence; S. 106 Evidence Act; Burden of
       proof – Alibi; Recovery under S. 27 Evidence Act, when admissible.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 918
       of 2024
       From the Judgment and Order dated 12.10.2015 of the High Court
       of Delhi at New Delhi in CRLA No.287 of 2015
                           Appearances for Parties
       Ms. Neha Kapoor, Kaushal Mehta, Pulkit Srivastava, Ankit Bhutani,
       Advs. for the Appellant.
       Rajan Kumar Chourasia, Mukesh Kumar Maroria, Nachiketa Joshi, P
       V Yogeshvaran, Udai Khanna, Vishnu Shankar Jain, Sachin Sharma,
       Advs. for the Respondent.
                  Judgment / Order of the Supreme Court

                                   Judgment
       B.R. Gavai, J.
1.     This appeal arises against the judgment and order passed by the
       Division Bench of the High Court of Delhi at New Delhi on 12th
[2024] 3 S.C.R.                                                        769

                Ravinder Kumar v. State of NCT of Delhi


     October, 2015 in Criminal Appeal No.287 of 2015, thereby dismissing
     the appeal filed by the appellant herein.
2.   The facts in brief leading to the filing of the present appeal are as
     under:
     2.1 Deceased-Meena, daughter of Mani Ram (PW.3) and Gyanwati
         (PW.6), got married to the appellant-Ravinder Kumar (accused
         No.1) on 20.06.1999. A male child named Harry was born out of
         the said wedlock on 26.08.2000. On 27.04.2001, at 0055 hours,
         a First Information Report (“FIR” for short) bearing No.129/2001
         (Ext. PW-9/A) was registered at the instance of deceased-Meena
         in the Police Station Civil Lines, Delhi for investigation into the
         offence under Section 498-A of the Indian Penal Code, 1860 (for
         short. ‘IPC’). In the said FIR, deceased-Meena made allegations
         with regard to cruelty made by her husband-Ravinder Kumar
         (accused No.1) and his two brothers, namely, Pushpender Singh
         (accused No.2) and R. Harshinder (accused No.4) during her
         stay at the matrimonial home at H.No.252, Old Chandrawal, Civil
         Line, Delhi. In the said FIR, after completion of the investigation
         a Report under Section 173 of the Code of Criminal Procedure,
         1973 (for short, ‘Cr.P.C’) was submitted. However, it appears
         that there was a compromise between the parties and she
         made a statement before the Metropolitan Magistrate (Mahila
         Court), Delhi that she does not want to proceed with the case
         any further. She further stated that she has no grievance against
         the accused persons and that the complaint had been made
         by her out of frustration and anger. She had also stated that
         she was living separately with her husband and child happily,
         as such criminal proceedings were terminated and the accused
         were discharged vide judgment dated 21.10.2003.
     2.2 On the morning of 29.05.2004, dead body of Meena was
         discovered at about 0820 hours lying in a pool of blood on the
         floor of the room on the ground floor, her throat slit with a sharp
         edged weapon and her son Harry aged about three and a half
         years was found sitting nearby.
     2.3 The FIR No.211/04 (Ext. PW-1/A) came to be registered for
         the offence punishable under Section 302 IPC on the basis
         of rukka (Ex.PW-15/B) sent by Sub Inspector Ram Chander
         (PW.15). The FIR was later converted into a case involving for
         offence punishable under Section 304-B/498-A/34 of the IPC
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            on the basis of the statements made by Mani Ram (PW.3),
            Shiv Kumar (PW.4) and Gyanwati (PW.6), father, brother and
            mother of deceased Meena respectively.
       2.4 On conclusion of the investigation, charges were framed
           against Ravinder Kumar (accused No.1), the husband of the
           deceased, Babu Lal (accused No.4), who is the father-in-law
           of the deceased, Phoolwati (accused No.3), who is the mother-
           in-law of the deceased and Pushpender (accused No.2) and
           R. Harshinder (accused No.5), who are the brothers-in-law
           of the deceased. At the conclusion of the trial, by judgment
           and order dated 25.11.2014/08.01.2015, the Addl. Sessions
           Judge-02, North District, Rohini Courts, Delhi (hereinafter
           referred to as “trial court”) convicted the appellant herein for the
           offence punishable under Section 302 IPC and sentenced him
           to undergo life imprisonment with a fine of Rs.25,000/-. All the
           accused were sentenced to undergo rigorous imprisonment for
           ten years with fine of Rs.20,000/- for the offences punishable
           under Section 304B/34 IPC and rigorous imprisonment for three
           years with fine of Rs.25,000/- each for offence under Section
           498A/34 IPC with further direction that in case of default in
           payment of fine they would undergo rigorous imprisonment for
           six months and three months respectively.
       2.5 Being aggrieved thereby, two criminal appeals came to be
           preferred by the convicted persons. Mani Ram (PW.3), the father
           of the deceased also filed an independent appeal being Criminal
           Appeal No.569 of 2015, being aggrieved by the acquittal of
           accused Nos.2 to 5 for the offences punishable under Section
           302/34 IPC. The appeals were heard together. The High Court,
           vide impugned judgment and order dated 12th October 2015,
           held the appellant herein and Pushpender (accused No.2)
           guilty for the offence punishable under Section 302 read with
           Section 34 IPC. The conviction and sentence of the appellant
           herein and Pushpender (accused No.2) was set aside for the
           offence punishable under Section 304B read with Section 34
           IPC while maintaining the sentence awarded by the trial court to
           the appellant for the offence punishable under Section 302/34
           IPC. The High Court also sentenced Pushpinder (accused
           No.2) to undergo life imprisonment with fine of Rs.25,000/- for
           the offence punishable under Section 302/34 IPC. In case of
[2024] 3 S.C.R.                                                      771

                Ravinder Kumar v. State of NCT of Delhi


           default in payment of fine, he was directed to undergo rigorous
           imprisonment for three months. The conviction of Phoolwati
           (accused No.3), Babu Lal (accused No.4) and R. Harshinder
           (accused No.5) for the offence punishable under Section 304-
           B read with Section 34 IPC and conviction of all accused for
           offence under Section 498-A read with Section 34 IPC and
           sentences awarded thereagainst were maintained.
     2.6 Babu Lal (accused No.4), who is the father-in-law of the
         deceased had preferred Criminal Appeal No.2025 of 2017
         before this Court. Since Phoolwati (accused No.3), who is the
         mother-in-law of the deceased died during the pendency of
         the appeal, the appeal came to be abated against her. In the
         said appeal, insofar as Babu Lal (accused No.4) is concerned,
         though this Court did not find any ground to interfere with
         the conviction passed by the trial court and the High Court,
         it reduced the sentence for the period already undergone by
         accused No.4-Babu Lal.
     2.7 Pushpender (accused No.2) had preferred Criminal Appeal
         Nos.938-939 of 2016. This Court, vide order dated 15th February
         2022 partly allowed the appeals and set aside the conviction
         and sentence recorded against Pushpender (accused No.2) for
         offence punishable under Section 302 IPC, however it restored
         the conviction and sentence in respect of offences under
         Sections 304B and 498A read with Section 34 IPC.
     2.8 Insofar as R. Harshinder (accused No.5) is concerned, he had
         preferred Criminal Appeal No.244 of 2022. His appeal was also
         partly allowed by reducing the sentence to the period already
         undergone by him, vide order dated 15th February 2022.
     2.9 After the aforesaid appeals were decided, the appellant herein
         has preferred the present appeal in October, 2023. Leave was
         granted in this matter on 13.02.2024.
3.   We have heard Ms. Neha Kapoor, learned counsel for the appellant
     and Mr. Rajan Kumar Chourasia, learned counsel for the respondent.
4.   Ms. Kapoor submits that the conviction is based on circumstantial
     evidence. She further submits that no incriminating circumstances
     have been proved against the appellant beyond reasonable doubt.
     She submits that insofar as recovery of the bloodstained clothes is
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       concerned, it is found at a place accessible to one and all and she
       further submits that the recovery panchnama also does not mention
       the date of recovery. She therefore submits that, the conviction under
       Section 302 IPC is not at all tenable.
5.     Ms. Kapoor further submits that even the conviction under Section
       304B and 498A would not be tenable. She submits that the matter
       was compromised between the deceased and the accused. It is
       submitted that taking into consideration the above aspect, the
       amended charge came to be framed on 14.03.2007, restricting the
       claim with regard to cruelty only for the period between 21.10.2003
       and 29.05.2004 i.e. from the date of the discharge by the learned
       Magistrate in the earlier proceedings till the date on which Meena
       was found dead. Ms. Kapoor further submits that during this period
       there is no allegation against the appellant herein, which would
       attract the provisions of Section 498A IPC. It is submitted that the
       prosecution fails to prove the guilt. The conviction under Section
       304B IPC would also not be tenable.
6.     Shri Rajan Kumar Chourasia, learned counsel appearing for the
       respondent, on the contrary, submits that both the Courts, upon correct
       appreciation of evidence, have concurrently found the appellant
       herein guilty for the offence punishable under Section 302 IPC. It
       is, therefore, submitted that no interference is warranted with the
       conviction recorded under Section 302 IPC. It is submitted that insofar
       as conviction under Section 498A and 304B IPC are concerned, the
       same has been affirmed by this Court in the case of three co-accused
       persons, as such the said finding has attained finality.
7.     With the assistance of the learned counsel for the parties, we have
       scrutinized the evidence.
8.     Undoubtedly, the case of the prosecution rests on circumstantial
       evidence. The law with regard to conviction on the basis of
       circumstantial evidence has very well been crystalized in the judgment
       of this Court in the case of Sharad Birdhichand Sarda v. State of
       Maharashtra1, wherein this Court held thus:
             “152. Before discussing the cases relied upon by the High
             Court we would like to cite a few decisions on the nature,


1    (1984) 4 SCC 116 : 1984 INSC 121
[2024] 3 S.C.R.                                                          773

                Ravinder Kumar v. State of NCT of Delhi


           character and essential proof required in a criminal case
           which rests on circumstantial evidence alone. The most
           fundamental and basic decision of this Court is Hanumant
           v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952
           SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case
           has been uniformly followed and applied by this Court in
           a large number of later decisions up-to-date, for instance,
           the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh
           [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v.
           State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC
           656] . It may be useful to extract what Mahajan, J. has
           laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952
           SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :
                “It is well to remember that in cases where
                the evidence is of a circumstantial nature, the
                circumstances from which the conclusion of
                guilt is to be drawn should in the first instance
                be fully established, and all the facts so
                established should be consistent only with the
                hypothesis of the guilt of the accused. Again,
                the circumstances should be of a conclusive
                nature and tendency and they should be such
                as to exclude every hypothesis but the one
                proposed to be proved. In other words, there
                must be a chain of evidence so far complete
                as not to leave any reasonable ground for a
                conclusion consistent with the innocence of the
                accused and it must be such as to show that
                within all human probability the act must have
                been done by the accused.”
           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
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            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
                 (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.”
9.     It can thus clearly be seen that it is necessary for the prosecution
       that the circumstances from which the conclusion of the guilt is to
       be drawn should be fully established. The Court holds that it is a
       primary principle that the accused ‘must be’ and not merely ‘may
       be’ guilty before a court can convict the accused. 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
[2024] 3 S.C.R.                                                           775

                   Ravinder Kumar v. State of NCT of Delhi


     held that the facts so established should be consistent only with 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
     further been held that the circumstances should be such that they
     exclude every possible hypothesis except the one to be proved. It
     has been held that 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
     probabilities the act must have been done by the accused.
10. It is settled law that the suspicion, however strong it may be, cannot
    take the place of proof beyond reasonable doubt. An accused cannot
    be convicted on the ground of suspicion, no matter how strong it is.
    An accused is presumed to be innocent unless proved guilty beyond
    a reasonable doubt.
11. In the light of the aforesaid judgment, we have examined the present
    case. In the present case, the trial court and the High Court have
    basically convicted and affirmed the conviction under Section 302
    IPC, finding the plea of the alibi to be without substance. It is a settled
    proposition of law that before the burden shifts on the accused under
    Section 106 of the Evidence Act, the prosecution will have to prove
    its case. No doubt that in view of the law laid down by this Court
    in the case of Trimukh Maroti Kirkan v. State of Maharashtra2,
    which is a case like the present one, where husband and wife reside
    together in a house and the crime is committed inside the house, it
    will be for the husband to explain how the death occurred in the house
    where they cohabited together. However, even in such a case, the
    prosecution will have to first establish that before the death occurred,
    the deceased and the accused were seen in the said house. In the
    present case, the incident had occurred on the intervening night of
    28th/29th May, 2004. It was necessary for the prosecution to lead
    some evidence to establish that on the night of 28th/29th May 2004,
    deceased and accused were together in the house. This will be
    more necessary in view of the specific plea of the defence of alibi.
12. We will have to consider as to whether the prosecution has established
    other circumstances beyond reasonable doubts, which led to no
    other conclusion than the guilt of the accused.


2   (2006) 10 SCC 681 : 2006 INSC 691
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13. The prosecution has relied upon the CDRs with regard to mobile
    phone of the Saroj, Pushpender (accused No.2) and Ravinder
    Kumar (accused No.1). However, both the Courts found the said
    evidence to be inadmissible as it was not proved in terms of
    Section 65A of the Evidence Act. The circumstances relied upon
    by the prosecution is with regard to the seizure of the bloodstained
    clothes allegedly used by the appellant at the time of commission
    of the crime beneath the double bed from his parental home at
    Chandrawal. We find that the said recovery cannot be relied for
    more than one reasons. For a recovery to be admissible on the
    statement made under Section 27 of the Evidence Act, it has to be
    from such a place which is exclusively within the knowledge of the
    maker thereof. Indisputably, the recovery is from a place accessible
    to one and all and the recovery panchnama also does not mention
    the date regarding such a recovery. Apart from that, there is no
    entry in malkhana register with regard to the deposit of the said
    articles and sending them to the FSL for chemical examination.
    We, therefore, find that the said circumstances cannot be said to
    be proved beyond reasonable doubt.
14. Apart from that, the prosecution has not been in a position to prove
    any other circumstance beyond reasonable doubt. The trial court
    and the High Court have heavily relied on the circumstance that
    an English calendar (Ex. PX) was found to be hanged in the room.
    On one side, two sheets of paper both similar computer print outs
    has been pasted. On one of the sheets, on the left top corner, the
    name Ravinder followed by mobile telephone number 9818419048
    preceded by a drawing of mobile phone with arrow sign, all written
    in hand can be noticed. On the other sheet pasted on the top, above
    the calendar, it was printed thus:-
                    “In-Laws: 2791 3334
                    Self: 9818419048
                                   My Home: 55153285”
15. It has been held that the appellant had hung calendar (Ex.PX) on
    the wall of the house, where he was residing and the calendar (Ex.
    PX) would catch the attention of anybody entering the house. It was
    held that it was deliberate and had an objective. It was also held
    that Chandrawal house was qualified by the expression “my home”
[2024] 3 S.C.R.                                                        777

                 Ravinder Kumar v. State of NCT of Delhi


     and the house where the other phone was functional as that of his
     “in-laws”. The High Court observed thus:-
           “...The phone number of Chandrawal house was qualified
           by the expression “my home” and the house where the other
           phone (27913334) was functional as that of his “In-laws”
16. With this finding and coupled with the finding that in the house the
    appellant has created a scene so as to make it seem like a robbery, it
    was held that it was only the appellant who was guilty for commission
    of murder of his wife.
17. We are of the considered view that the High Court has failed to
    draw a distinction between the “may have committed the crime” or
    “must have committed the crime”, as held by this Court in the case
    of Sharad Birdhichand Sarda (supra). As held by this Court, the
    suspicion, however strong it may be, cannot take the place of proof
    beyond reasonable doubt. We, therefore, find that the prosecution
    has failed to prove any incrimination circumstance beyond reasonable
    doubt and in any case failed to establish a chain of events intertwined
    with each other, which leads to no other conclusion than the guilt
    of the accused.
18. Considering the facts and circumstances, the appeal is partly allowed
    and the conviction and sentence imposed upon the appellant herein for
    the offence punishable under Section 302 IPC is set aside. However,
    the conviction and sentence in respect of the offences punishable
    under Sections 304B, 498A read with Section 34 IPC are restored.
19. In the present case, the appellant has undergone incarceration for
    a period of more than fifteen years. In that view of the matter, we
    direct that it will not be necessary for the appellant to deposit the
    fine amount. The appellant is directed to be set at liberty forthwith,
    if not required in any other case.
20. Pending application(s), if any, shall stand disposed of.


     Headnotes prepared by:                             Result of the case:
     Aandrita Deb, Hony. Associate Editor             Appeal partly allowed.
     (Verified by: Madhavi Divan, Sr. Adv.)