RAVI SHARMA versus STATE (GOVERNMENT OF NCT OF DELHI) AND ANR. on 11 July 2022

1. An order of acquittal passed on a scrutiny of evidence before itby the District and Sessions Judge, North-East District, KarkardoomaCourt, Delhi in S.C. No.6/12 got overturned by the impugned judgmentEof the Division Bench of the High Court of Delhi based upon the existenceof motive along with the recovery made under Section 27 of the IndianEvidence Act (for short ‘the Act’).

FACTS IN BRIEF:

2. On 30.05.2011, the first information report was recorded onFfinding a dead body. PW2, brother of the deceased, identified the body.Statements of both PW1, father of the deceased and PW2 have beenrecorded, which did not indicate any specific suspect. The InvestigatingOfficer conducted the inquest and prepared the map. On the next day,doubts were raised by PWs 1 and 2 pointing the finger of suspicion onGthe accused who happens to be a friend of the deceased. Upon securingthe accused, recovery of the material in the form of firearm was made.Both the observation Mahazar along with the sketch and the recoveryMahazar under Section 27 of the Act were signed by the police officerswith the exception that the latter one was signed by PW2 as well.

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3. The trial Court disbelieved the evidence of PWs 1 and 2; PW2with reference to the motive, and PW1 on the ground that it did notsupport the case of the prosecution. It raised a serious suspicion overthe recovery made under Section 27 of the Act. From the place ofoccurrence, recoveries were made by way of a wooden piece of thebutt of a gun along with the cartridges. Of this, four cartridges werefound in the pocket of the deceased.

4. Having found that the motive has not been proved and therecovery being doubtful despite the presence of scores of independentwitnesses on both occasions, the Court in the first instance deemed itappropriate to extend the benefit of doubt in favour of the appellant.

5. The Division Bench of the Delhi High Court, despite concurringwith the views expressed by the trial Court qua the last seen theory,nonetheless accepted the evidence of PW2 with respect to the motivecoupled with the recoveries made. Though the trial Court eschewed theevidence of the Ballistic Expert, which remained inconclusive with respectto the bullet which caused the death, relatable to the gun belonging to theappellant, the High Court felt that it could be relied upon. Incidentally, itwas held that the wooden piece of the butt did belong to the appellant.Therefore, the circumstances forming a chain were sufficient enough topoint out guilt towards him and accordingly the High Court rendered aconviction.

6. Learned counsel, Mr. Krishan Kumar, appearing for the appellantsubmitted that the well-merited judgment of the trial Court ought not tohave been reversed by the High Court by replacing its own views. Havingaccepted the views of the trial Court as a plausible one, the convictionought not to have been rendered. There was no link in the circumstantialchain as held by the High Court. Motive has not been established in themanner known to law. In a case of circumstantial evidence, motiveassumes more importance. The opinion of the Ballistic Expert was rightlytaken 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 thefirst instance during the inspection of the place of occurrence andthereafter at the instance of the appellant were rightly doubted by thetrial 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 atthe hands of the High Court is unwarranted.

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A7. Ms. Aishwarya Bhati learned Additional Solicitor Generalappearing for the respondents submitted that the power of the HighCourt in deciding the appeal is rather wide. The High Court mayreappreciate the evidence which in fact it did. There is no perversity inthe cogent reasons rendered by the High Court. PW2 has deposed aboutthe motive due to enmity between the deceased and the appellant. ThisBalong with the recoveries made would form sufficient grounds to convictthe appellant.

8. Before venturing into the merits of the case, we would like toreiterate 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 theCposition of law is rather settled. We would like to quote the relevantportion of a recent judgment of this Court in Jafarudheen and Othersv. State of Kerala (2022 SCC Online SC 495) as follows:

25. While dealing with an appeal against acquittal by invokingSection 378 of the Cr.PC, the Appellate Court has to considerDwhether the Trial Court’s view can be termed as a possible one,particularly when evidence on record has been analyzed. Thereason is that an order of acquittal adds up to the presumption ofinnocence in favour of the accused. Thus, the Appellate Courthas to be relatively slow in reversing the order of the Trial CourtErendering acquittal. Therefore, the presumption in favour of theaccused does not get weakened but only strengthened. Such adouble presumption that enures in favour of the accused has to bedisturbed only by thorough scrutiny on the accepted legalparameters.

F9. This Court in the aforesaid judgment has noted the followingdecision while laying down the law:

Precedents:

•Mohan alias Srinivas alias Seena alias Tailor Seena v. Stateof Karnataka, [2021 SCC OnLine SC 1233] as hereunder:

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“20. Section 378 CrPC enables the State to prefer an appealagainst an order of acquittal. Section 384 CrPC speaks of thepowers that can be exercised by the Appellate Court. Whenthe trial court renders its decision by acquitting the accused,presumption of innocence gathers strength before the Appellate H

Court. As a consequence, the onus on the prosecution becomesmore burdensome as there is a double presumption ofinnocence. Certainly, the Court of first instance has its ownadvantages in delivering its verdict, which is to see the witnessesin person while they depose. The Appellate Court is expectedto involve itself in a deeper, studied scrutiny of not only theevidence before it, but is duty bound to satisfy itself whetherthe decision of the trial court is both possible and plausibleview. When two views are possible, the one taken by the trialcourt in a case of acquittal is to be followed on the touchstoneof liberty along with the advantage of having seen the witnesses.Article 21 of the Constitution of India also aids the accusedafter acquittal in a certain way, though not absolute. Suffice itis to state that the Appellate Court shall remind itself of therole required to play, while dealing with a case of an acquittal.

21. Every case has its own journey towards the truth and it isthe Court’s role undertake. Truth has to be found on the basisof evidence available before it. There is no room for subjectivity,nor the nature of offence affects its performance. We have ahierarchy of courts in dealing with cases. An Appellate Courtshall not expect the trial court to act in a particular waydepending upon the sensitivity of the case. Rather it should beappreciated if a trial court decides a case on its own meritdespite its sensitivity.

22. At times, courts do have their constraints. We find, differentdecisions being made by different courts, namely, trial court onthe one hand and the Appellate Courts on the other. If suchdecisions are made due to institutional constraints, they do notaugur well. The district judiciary is expected to be thefoundational court, and therefore, should have the freedom ofmind to decide a case on its own merit or else it might becomea stereotyped one rendering conviction on a moral platform.Indictment and condemnation over a decision rendered, onconsidering all the materials placed before it, should be avoided.The Appellate Court is expected to maintain a degree of cautionbefore making any remark.

23. This court, time and again has laid down the law on thescope of inquiry by an Appellate court while dealing with an A

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appeal against acquittal under Section 378 CrPC. We do notwish to multiply the aforesaid principle except placing relianceon a recent decision of this court in Anwar Ali v. State ofHimanchal Pradesh, (2020) 10 SCC 166:

14.2. When can the findings of fact recorded by a court beheld to be perverse has been dealt with and considered inparagraph 20 of the aforesaid decision, which reads asunder: [Babu v. State of Kerala, [(2010) 9 SCC 189]:

“20. The findings of fact recorded by a court can beheld to be perverse if the findings have been arrived atby ignoring or excluding relevant material or by takinginto consideration irrelevant/inadmissible material. Thefinding may also be said to be perverse if it is “againstthe weight of evidence”, or if the finding so outrageouslydefies logic as to suffer from the vice of irrationality.(Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4SCC 635], Excise & Taxation Officer-cum-AssessingAuthority v. Gopi Nath & Sons [1992 Supp (2) SCC312], Triveni Rubber & Plastics v. CCE [1994 Supp (3)SCC 665], Gaya Din v. Hanuman Prasad [(2001) 1 SCC501], Aruvelu v. State, [(2009) 10 SCC 206] and GaminiBala Koteswara Rao v. State of A.P. [(2009) 10 SCC636]).”

It is further observed, after following the decision ofthis Court in Kuldeep Singh v. Commr. of Police [(1999)2 SCC 10], that if a decision is arrived at on the basis ofno evidence or thoroughly unreliable evidence and noreasonable person would act upon it, the order would beperverse. But if there is some evidence on record whichis acceptable and which could be relied upon, theconclusions would not be treated as perverse, and thefindings would not be interfered with.

14.3. In the recent decision of Vijay Mohan Singh v. Stateof Karnataka, [(2019) 5 SCC 436], this Court again had anoccasion to consider the scope of Section 378 CrPC andthe 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 ofdecisions of this Court right from 1952 onwards. In para31, it is observed and held as under:

“31. An identical question came to be considered beforethis Court in Umedbhai Jadavbhai v. State of Gujarat,[(1978) 1 SCC 228]. In the case before this Court, theHigh Court interfered with the order of acquittal passedby the learned trial court on reappreciation of the entireevidence on record. However, the High Court, whilereversing the acquittal, did not consider the reasons givenby the learned trial court while acquitting the accused.Confirming the judgment of the High Court, this Courtobserved and held in para 10 as under:

‘10. Once the appeal was rightly entertained againstthe order of acquittal, the High Court was entitled toreappreciate the entire evidence independently andcome to its own conclusion. Ordinarily, the High Courtwould give due importance to the opinion of theSessions Judge if the same were arrived at afterproper appreciation of the evidence. This rule willnot be applicable in the present case where theSessions Judge has made an absolutely wrongassumption of a very material and clinching aspectin the peculiar circumstances of the case.’

31.1. In Sambasivan v. State of Kerala, [(1998) 5 SCC412], the High Court reversed the order of acquittalpassed by the learned trial court and held the accusedguilty on reappreciation of the entire evidence on record,however, the High Court did not record its conclusionon the question whether the approach of the trial courtin dealing with the evidence was patently illegal or theconclusions arrived at by it were wholly untenable.Confirming the order passed by the High Courtconvicting the accused on reversal of the acquittalpassed by the learned trial court, after being satisfiedthat the order of acquittal passed by the learned trialcourt was perverse and suffered from infirmities, thisCourt declined to interfere with the order of conviction

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passed by the High Court. While confirming the orderof conviction passed by the High Court, this Courtobserved in para 8 as under:

‘8. We have perused the judgment under appeal toascertain whether the High Court has conformed tothe aforementioned principles. We find that the HighCourt has not strictly proceeded in the manner laiddown by this Court in Doshi case [Ramesh BabulalDoshi v. State of Gujarat, (1996) 9 SCC 225] viz.first recording its conclusion on the question whetherthe approach of the trial court in dealing with theevidence was patently illegal or the conclusionsarrived at by it were wholly untenable, which alonewill justify interference in an order of acquittal thoughthe High Court has rendered a well-consideredjudgment duly meeting all the contentions raised beforeit. But then will this non-compliance per se justifysetting aside the judgment under appeal? We think,not. In our view, in such a case, the approach of thecourt which is considering the validity of the judgmentof an appellate court which has reversed the orderof acquittal passed by the trial court, should be tosatisfy itself if the approach of the trial court in dealingwith the evidence was patently illegal or conclusionsarrived at by it are demonstrably unsustainable andwhether the judgment of the appellate court is freefrom 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’sjudgment should be disturbed. But if on the other handthe court comes to the conclusion that the judgmentof the trial court does not suffer from any infirmity, itcannot but be held that the interference by theappellate court in the order of acquittal was notjustified; then in such a case the judgment of theappellate court has to be set aside as of the tworeasonable views, the one in support of the acquittalalone has to stand. Having regard to the above discussion, we shall proceed to examine the judgmentof the trial court in this case.’

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31.2. In K. Ramakrishnan Unnithan v. State of Kerala,[(1999) 3 SCC 309], after observing that though there issome substance in the grievance of the learned counselappearing on behalf of the accused that the High Courthas not adverted to all the reasons given by the trialJudge for according an order of acquittal, this Courtrefused to set aside the order of conviction passed bythe High Court after having found that the approach ofthe Sessions Judge in recording the order of acquittalwas not proper and the conclusion arrived at by thelearned Sessions Judge on several aspects wasunsustainable. This Court further observed that as theSessions Judge was not justified in discarding therelevant/material evidence while acquitting the accused,the High Court, therefore, was fully entitled toreappreciate the evidence and record its own conclusion.This Court scrutinised the evidence of the eyewitnessesand opined that reasons adduced by the trial court fordiscarding the testimony of the eyewitnesses were notat all sound. This Court also observed that as theevaluation of the evidence made by the trial court wasmanifestly erroneous and therefore it was the duty ofthe High Court to interfere with an order of acquittalpassed by the learned Sessions Judge.

31.3. In Atley v. State of U.P., [AIR 1955 SC 807], inpara 5, this Court observed and held as under:

‘5. It has been argued by the learned counsel forthe appellant that the judgment of the trial courtbeing one of acquittal, the High Court should nothave set it aside on mere appreciation of theevidence led on behalf of the prosecution unlessit came to the conclusion that the judgment of thetrial Judge was perverse. In our opinion, it is notcorrect to say that unless the appellate court inan appeal under Section 417 CrPC came to theconclusion that the judgment of acquittal under A

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appeal was perverse it could not set aside thatorder.

It has been laid down by this Court that it is opento the High Court on an appeal against an orderof acquittal to review the entire evidence and tocome to its own conclusion, of course, keeping inview the well-established rule that the presumptionof innocence of the accused is not weakened butstrengthened by the judgment of acquittal passedby the trial court which had the advantage ofobserving the demeanour of witnesses whoseevidence have been recorded in its presence.

It is also well settled that the court of appeal hasas wide powers of appreciation of evidence in anappeal against an order of acquittal as in the caseof an appeal against an order of conviction, subjectto the riders that the presumption of innocencewith which the accused person starts in the trialcourt continues even up to the appellate stage andthat the appellate court should attach due weightto the opinion of the trial court which recordedthe order of acquittal.

If the appellate court reviews the evidence,keeping those principles in mind, and comes to acontrary conclusion, the judgment cannot be saidto have been vitiated. (See in this connection thevery cases cited at the Bar, namely, Surajpal Singhv. State [1951 SCC 1207]; Wilayat Khan v. Stateof U.P. [1951 SCC 898]. In our opinion, there isno substance in the contention raised on behalf ofthe appellant that the High Court was not justifiedin reviewing the entire evidence and coming to itsown conclusions.’

31.4. In K. Gopal Reddy v. State of A.P., [(1979) 1 SCC355], this Court has observed that where the trial courtallows itself to be beset with fanciful doubts, rejectscreditworthy evidence for slender reasons and takes a

view of the evidence which is but barely possible, it isthe obvious duty of the High Court to interfere in theinterest of justice, lest the administration of justice bebrought to ridicule.”

•N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] ashereunder:—

“20. Mainly it is contended by Shri Nagamuthu, learned SeniorCounsel appearing for the appellant that the view taken by thetrial court is a “possible view”, having regard to the evidenceon record. It is submitted that the trial court has recorded cogentand valid reasons in support of its findings for acquittal. UnderSection 378 CrPC, no differentiation is made between anappeal against acquittal and the appeal against conviction. Byconsidering the long line of earlier cases this Court in thejudgment in Chandrappa v. State of Karnataka, [(2007) 4 SCC415] has laid down the general principles regarding the powersof the appellate Court while dealing with an appeal against anorder of acquittal. Para 42 of the judgment which is relevantreads as under: (SCC p. 432)

“42. From the above decisions, in our considered view, thefollowing general principles regarding powers of theappellate court while dealing with an appeal against an orderof acquittal emerge:

(1) An appellate court has full power to review,reappreciate and reconsider the evidence upon whichthe order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts nolimitation, restriction or condition on exercise of suchpower and an appellate court on the evidence before itmay reach its own conclusion, both on questions of factand of law.

(3) Various expressions, such as, “substantial andcompelling reasons”, “good and sufficient grounds”,“very strong circumstances”, “distorted conclusions”,“glaring mistakes”, etc. are not intended to curtailextensive powers of an appellate court in an appealagainst acquittal. Such phraseologies are more in the

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nature of “flourishes of language” to emphasise thereluctance of an appellate court to interfere with acquittalthan to curtail the power of the court to review theevidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind thatin case of acquittal, there is double presumption in favourof the accused. Firstly, the presumption of innocence isavailable to him under the fundamental principle ofcriminal jurisprudence that every person shall bepresumed to be innocent unless he is proved guilty by acompetent court of law. Secondly, the accused havingsecured his acquittal, the presumption of his innocenceis further reinforced, reaffirmed and strengthened bythe trial court.

(5) If two reasonable conclusions are possible on thebasis of the evidence on record, the appellate courtshould not disturb the finding of acquittal recorded bythe trial court.”

21. Further in the judgment in Murugesan v. State, [(2012) 10SCC 383] relied on by the learned Senior Counsel for the appellant,this Court has considered the powers of the High Court in anappeal against acquittal recorded by the trial court. In the saidjudgment, it is categorically held by this Court that only in caseswhere conclusion recorded by the trial court is not a possible view,then only the High Court can interfere and reverse the acquittalto 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 thetrial court is a “possible view”, the High Court not to reverse theacquittal to that of the conviction.

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23. Further, in Hakeem Khan v. State of M.P., [(2017) 5 SCC719] this Court has considered the powers of the appellate courtfor interference in cases where acquittal is recorded by the trialcourt. In the said judgment it is held that if the “possible view” ofthe 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 court can bereasonably formed, regardless of whether the High Court agreeswith the same or not, verdict of the trial court cannot be interdictedand the High Court cannot supplant over the view of the trialcourt. Para 9 of the judgment reads as under; (SCC pp.722-23)

“9. Having heard the learned counsel for the parties, we are ofthe view that the trial court’s judgment is more than just apossible view for arriving at the conclusion of acquittal, andthat it would not be safe to convict seventeen persons accusedof the crime of murder i.e. under Section 302 read with Section149 of the Penal Code. The most important reason of the trialcourt, as has been stated above, was that, given the time of6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark,and, therefore, identification of seventeen persons would beextremely difficult. This reason, coupled with the fact that theonly independent witness turned hostile, and two othereyewitnesses who were independent were not examined, wouldcertainly create a large hole in the prosecution story. Apartfrom this, the very fact that there were injuries on three of theaccused party, two of them being deep injuries in the skull,would lead to the conclusion that nothing was premeditatedand there was, in all probability, a scuffle that led to injuries onboth sides. While the learned counsel for the respondent maybe right in stating that the trial court went overboard in statingthat the complainant party was the aggressor, but the trial court’sultimate conclusion leading to an acquittal is certainly a possibleview on the facts of this case. This is coupled with the factthat the presence of the kingpin Sarpanch is itself doubtful inview of the fact that he attended the Court at some distanceand arrived by bus after the incident took place.”

24. By applying the abovesaid principles and the evidence on recordin the case on hand, we are of the considered view that havingregard to material contradictions which we have already noticedabove and also as referred to in the trial court judgment, it can besaid that acquittal is a “possible view”. By applying the ratio aslaid down by this Court in the judgments which are stated supra,even assuming another view is possible, same is no ground tointerfere with the judgment of acquittal and to convict the appellant A

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for the offence alleged. From the evidence, it is clear that whenthe Inspecting Officer and other witnesses who are examined onbehalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office wasopen and people were moving out and in from the office of theappellant. It is also clear from the evidence of PWs 3, 5 and 11that the currency and cellphone were taken out from the drawerof the table by the appellant at their instance. There is also noreason, when the tainted notes and the cellphone were given tothe appellant at 5.45 p.m. no recordings were made and theappellant was not tested by PW 11 till 7.00 p.m.”

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10. Applying the said principles and after going through thejudgment rendered by the trial Court as well as the High Court, we dofeel that it is a case where the High Court has not acted within the legalparameters.

11. In this connection, we would like to note the followingDparagraphs of the High Court, wherein it did concur with the views ofthe trial Court with respect to the last seen theory:

“12. It is from this cross-examination the learned Trial Courtconcludes that the last seen evidence as deposed by JawaharSingh is an after-thought and in fact in retrospect when the familyEof the deceased had strong suspicion that Ravi was the accused,statement dated May 30, 2011 was introduced by the Policeclaiming him to be the last seen witness. A perusal of the crossexamination of Ashok can reasonably lead to the inference as hasbeen drawn by the learned Trial Court.

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13. Inspector Vijay Sirotiya PW-14 the investigating officer in hiscross examination has stated that the father and brother of thedeceased had arrived at the spot around 7.30/7.45 AM, howeverat that point of time they did not disclose the name of any personwhom they could suspect as the perpetrator of the murder asthey were crying and were in a bad condition. He stated thatstatement of Ashok and Jawahar Singh were recorded on thesame day i.e. May 30, 2011 somewhere in the afternoon after thebody had been subjected to post-mortem. In cross-examinationhe stated that the name of the suspect had come in the statementwithout any further address of the suspect and thus his house G

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could not be visited at that point of time, though the witnessesmentioned some Gali number as well as the house number butsince it was a Katcha colony it was difficult to locate the saidaddress, unless the address was specifically ascertained with thehelp of witness or other sources.

14. In view of this cross-examination of Ashok Kumar and VijaySirotiya we cannot hold that the finding of the learned Trial Courton the point that the last seen evidence is not reliable is perverse.Though both views are possible, however the view taken by thelearned Trial Judge is also a plausible view.

12. Thus, when the last seen theory is found to be not true, therehas to be much more concrete and clinching evidence to implicate theappellant. PW1 is the father of the deceased who not only deposed thatthere was no animosity between the deceased and the appellant, butalso that he did not know about the past transaction.

13. Having accepted the views of the trial Court holding that thelast seen theory has not been proved, a conviction cannot be renderedon the basis of evidence, which was rejected qua motive, through themouth of PW2. The trial Court gave its reasons for rejecting the evidenceof PW2. It had the advantage of seeing and assessing the demeanor ofthis witness, which the High Court did not have. PW2 has stated thatthere was a money transaction which led to a dispute between theaccused and the deceased and that he had assured the appellant that itwould be repaid. This also occurred few days before the date ofoccurrence. When we deal with a case of circumstantial evidence, asaforesaid, motive assumes significance. Though, the motive may paleinto insignificance in a case involving eyewitnesses, it may not be sowhen an accused is implicated based upon the circumstantial evidence.This position of law has been dealt with by this Court in the case ofTarsem Kumar v. Delhi Administration (1994) Supp 3 SCC 367 inthe following terms:

“8. Normally, there is a motive behind every criminal act and thatis why investigating agency as well as the court while examiningthe complicity of an accused try to ascertain as to what was themotive on the part of the accused to commit the crime in question.It has been repeatedly pointed out by this Court that where thecase of the prosecution has been proved beyond all reasonable A

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doubts on basis of the materials produced before the court, themotive loses its importance. But in a case which is based oncircumstantial evidence, motive for committing the crime on thepart of the accused assumes greater importance. Of course, ifeach of the circumstances proved on behalf of the prosecution isaccepted by the court for purpose of recording a finding that itwas the accused who committed the crime in question, even inabsence of proof of a motive for commission of such a crime, theaccused can be convicted. But the investigating agency as wellas the court should ascertain as far as possible as to what was theimmediate impelling motive on the part of the accused which ledhim to commit the crime in question. …….”

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14. We do find that there is no sufficient link to come to theirresistible conclusion pointing the guilt only to the appellant. We do notwish to multiply the settled position of law regarding the circumstantialevidence, except to quote the following decision in Padala Veera ReddyDv. State of A.P., 1989 Supp (2) SCC 706:

“10. Before adverting to the arguments advanced by the learnedCounsel, we shall at the threshold point out that in the presentcase there is no direct evidence to connect the accused with theoffence in question and the prosecution rests its case solely oncircumstantial evidence. This Court in a series of decisions hasconsistently held that when a case rests upon circumstantialevidence such evidence must satisfy the following tests:

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“(1) the circumstances from which an inference of guilt is soughtto be drawn, must be cogently and firmly established; F

(2) those circumstances should be of a definite tendencyunerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chainso complete that there is no escape from the conclusion thatwithin all human probability the crime was committed by theaccused and none else; and G

(4) the circumstantial evidence in order to sustain convictionmust be complete and incapable of explanation of any otherhypothesis than that of the guilt of the accused and suchevidence should not only be consistent with the guilt of the H

accused but should be inconsistent with his innocence. (SeeGambhir v. State of Maharashtra [(1982) 2 SCC 351].”

15. However, once again, we would like to reiterate the settledposition of law that a mere suspicion, however, strong it may be, cannotbe a substitute for acceptable evidence, as held in Chandrakant GanpatSovitkar v. State of Maharashtra, (1975) 3 SCC 16.

“16. ……It is well settled that no one can be convicted on thebasis of mere suspicion, however strong it may be. It also cannotbe disputed that when we take into account the conduct of anaccused, his conduct must be looked at in its entirety. …..”

16. Much reliance has been made on the recoveries made. Whenthe observation Mahazar was prepared along with the sketch and theinquest conducted, admittedly, scores of persons were present. Noindependent witness was made to sign and the evidence on behalf of theprosecution that they did not volunteer to do so, cannot be accepted. Awitness may not come forward to adduce evidence at times when askedto act as an eyewitness. However, when a large number of personswere available near the dead body, it is incomprehensible as to how allof them refused to sign the documents prepared by the police.

17. Similarly, the trial Court rightly doubted the recovery underSection 27 of the Act. There was no need to take PW2 and thereaftermake him to sign. There are a lot of contradictions in the evidencerendered. PW2 has stated that many persons were available at the timeof 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 similarstatement was also made by the Investigating Officer. There is adiscrepancy on the mode of traveling to the place from where the recoveryunder Section 27 of the Act was made, along with the witnesses, namelyPWs 2, 8, 11 and 14. While PW2 has stated that the police team used ajeep and motorbike. The other witness has stated that it was eithermotorbike or by foot, while one witness says that it was a Gypsy. We dofind contradictions with respect to the place of arrest followed by thedisclosure statement.

18. The report of the Ballistic Expert is obviously a scientificevidence in the nature of an opinion. It is required to use this evidence A

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Aalong with the other substantive piece of evidence available. The reportis inconclusive with respect to the firearm belonging to the appellantbeing used for committing the offence.

19. All the aforesaid aspects have been considered threadbare bythe trial Court. We do not find any perversity in it and the law presumesBdouble presumption in favour of the accused after a due adjudication bythe trial Court. We do believe that the High Court could have been slowerin reversing the order of acquittal rendered by the Court of First Instance.

20. On the aforesaid analysis, the order of conviction rendered bythe High Court of Delhi stands set aside, by restoring the acquittal by theCtrial Court. The appeals stand allowed.

Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeals allowed.

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