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Judgment
3
Assailing the validity of judgment dated 07.04.2012 this appeal has been filed by appellant-accused Hansraj, son of Prahlad, questioning conviction
passed by Sessions Judge, Baran in Sessions Case No.70/2011.
Learned court below, while acquitting one of the accused Insaf Ali for want of evidence has convicted appellant-accused Hansraj for the offence
punishable under Section 302 of IPC with life imprisonment coupled with a fine of ₹ 5000/-, in default thereof further to undergo six months simple
imprisonment.
Legal machinery came into motion, when Jahid Hussain lodged Exhibit-P2 FIR with Police Station Anta, District Baran on 19.04.2011 at 11:30 AM,
contents of which reads as under:-
“lsokes]a Jheku Fkkukf/kdkjh egksn; iqfyl Fkkuk vUrk ftyk ck¡jk jkt0 fo""k; % ,Q-vkbZ-vkj- ntZ djus ckcrA egksn; th] mijksDr fo""k; esa fuosnu
gS fd izkFkhZ ds thtk vCnqy vtht eksgEen ds o buds cM+s ck¡i ds yM+dksa ds vkil esa tehu ds ekeys esa jaft’k pyh vk jghÂ
gSA ftlds iwoZ  esa eqdnes Hkh ntZ gSaA bl jaft’k ds dkj.k esjs thtk ?khljh xkao NksM+dj iyk;FkkÂ
djhc 3 o""kZ ls jg jgs gSA ftUgksu edku Hkh cuk fy;k gS o [kqn ds VªsDVj ls esVsfj;y lIykbZ dk dke djrs gSA 4 o 5 fnuÂ
igys bUlkQ o eq’kRdhe dks fnu esa ns[kk gSA esjh cgu :Ddu us dy lk;a 4 cts crk;k Fkk fd vtht  ds ikl nks fnuÂ
igys dh esjs feV~Vh ugj ij Myuh gS vr% vki lkbZM ns[k yks ;k fQj ,sMokUl iSls ys yks rks mUgksus crk;k fd eSa
lkbZM ns[kdj iSls ywaxkA dy fnukad 18-04-2011 dks lqcg 7 cts ds yxHkx Qksu vk;k fd lkbZM fn[kk nwaxk vki pkS/kjh iSVªksy iEi ij vk tkvks bl ij
vCnqy vtht viuh eksVj lkbZfdy ls iSVªksy iEi Bhdfj;k dh rjQ ◌jo◌kuk gqvkA० djhc 8&9 cts dy vtht eksgEen ds yM+ds
A 9784146184 A lk;a pkj
cts rd dkQh Qksu fd;k ijUrq ?kaVh tk jgh Fkh Qksu ugha mBk;kA thtk dh jaft’k ds dkj.k ge dks 'kd gksus ds dkj.k vCnqy vtht dh ryk’k djuk
lk;a ls tkjh fd;k ijUrq dksbZ irk ugha yxkA eksckbZy ls ?kaVh djus ij pkj cts ds ckn eksckbZy dojst ,fj;k ls ckgj gksuk crkrk jgkA vktÂ
fnukad 1+9-04-2011 dks muds ugh vkus ij esjh cfgu :Ddu us Fkkus vUrk  vCnqy vtht dh xqe gks tkus dh
fjiksVZ ntZ djkbZ FkhA lqcg fjiksVZ ntZ ds ckn irk yxk fd /kkdM+ [ksM+h ds ukys ds mij ,d MSM ckWMh feyh gS bl ij gelHkh us tkdj ns[kk rks
mDr MSM ckWMh vtht mQZ vCnqy vtht iq= pk¡an eksgEen tkfr eqlyeku fuoklh ?khljh gky iyk;Fkk esjs thtk dk gksuk ik;k ftlds flj ij] dku ds mij dbZ
txg ?kko gks jgs FksA esjs thtk dks muds fj’rsnkj eq’rdhe] lyke eksg] tkfdj] bZczkfge] gqlSu eksg-] bUlkQ] v’kQkd eksg- us tehu fjlhoj
djk nsus dh jaft’k ds dkj.k bu yksxksa us ;g gR;k dh gSA fjiksVZ dk;Zokgh gsrq is’k gSA izkFkhZ tkfgn gqlSu iq= pk¡n eksgEen tkfr
eqlyeku mez 38 lky fuoklh iyk;FkkA
Fkkuk vUrk dsEi /kkdM+[ksM+h eky fnukad 19-04-2011 le; 11-30 AM mDr rgfjjh fjiksVZ izkFkhZ Jh tkfgn gqlSu iq= pk¡n eksgEen tkfr eqlyeku
mez 38 lky fuoklh iyk;Fkk us ?kVuk LFky ij is’k dh ftldks ipk¡n eksgEen tkfr eqlyeku mez 45 lky fuoklh ?khljh Fkkuk ckajk lnj gky iyk;Fkk dh yk’k dk utjh
fujh{k.k fd;k rks flj es lkeus chpks chp ?kko uqek [kwu vkyqnk pksV] ,d pksV flj es nk;h rjQ ?kko uqek vkyqnk pksV]Â
,d pksV ck,a dku ds ihNs ?kkouqek pksV ck, xky ij ?kkouqek pksV] ck, gkFk dh dykbZ ij [kjksp uqek◌ p◌ksV vkbZ gqbZ gSA
etewu fjiksVZ o utjh fujh{k.k tjc◌kr◌ pksVku० ls ekeyk /kkjk 302] 143 IPC dk ?kfVr gksuk ik;k tkrk gSA eu ,l-,p-vks-Â l
JhdEiksVj flag dkfu0 183 dks Fkkuk ij jokuk fd;kA SD tkfgn gqlSuA
Fkkuk vUrk fnukad 19-04-2011 le; 12-30 PM dk;Zokgh iqfyl & mDr rgfjjh fjiksVZ tkfdj gqlSu dh Jh dEiksVj flag dkfu- 183 us ykdj is’k dh etewu
rgfjjh fjiksVZ ls ekeyk /kk◌jk 302] 143 IPC◌ d◌s odw es०a vkuk ik;k tkus ij eqd- ua-99@201◌1 ◌/kkjk mDr esa ntZ dj rQ~rhâ◌€™◌k Jheku० iq""is◌U०nz flag ,l-,p-
vks- lk0 ds◌ ◌ ०◌ ◌
183 SHO ikl okil eksds ij fHktokbZ x;hA izfr;k ,QvkbZvkj fu;ekuqlkj tkjh dh xbZAâ€
and the said FIR was registered being formal FIR No.99/2011 Exhibit-P20, names of some suspected accused-persons have also
been given, but contents reveals that the case related to circumstantial evidence.
Prosecution produced twenty witnesses and got exhibited thirty-nine documents, accused was also examined under Section 313 of CrPC, who,
expressing ignorance by asserting alibi conveying he was away to his Village in connection with demise of his brother and was called by Police
authorities from there.
Heard submissions of both the sides, it has been contended by learned counsel for the appellant that despite there being no positive evidence, learned
trial court has passed an erroneous judgment convicting accused-appellant, no connectivity of any link has been established by the prosecution and
complete severance of links is obvious, even motive has also not been established, so far as alleged recoveries are concerned, the witnesses of
recovery of alleged weapon of assault have not adduced any positive evidence, one has become hostile and another has also stated that on the say of
Police, he had signed certain papers, even alleged recovery of axe was made from an open area, which too is doubtful and cannot be connected with
the crime. The alleged mobile sim does not stand in the name of accused-appellant, so no incriminatory circumstance is there to connect the appellant
with crime, nevertheless by erroneous impugned judgment, petitioner has wrongly been convicted, he deserves to be acquitted, hence appeal be
allowed.
Per contra learned Public Prosecutor has contended that on the instance of accused-appellant, axe - weapon of assault has been recovered and got
connected, blood-group found on the axe, apparels and FSL also establishes the same, though learned Public Prosecutor has failed to convey proper
connectivity of all the incriminatory circumstances.
Having heard both sides, we have given our thoughtful consideration to the record and have carefully examined the evidence thoroughly.
PW1 Jahid, mobile sim vendor has stated that he runs a grocery-shop and is not aware that on which date, he sold the sim nor remember its serial
number and has further stated that it was sold in the name of Ramesh and it’s ID was further transmitted to the distributor, this witness has been
permitted to be contradicted through Public Prosecutor and in cross-examination he has stated that he did not vend the sim to the accused, present in
the Court and has further stated that he did not deliver any kind of paper to Police in respect of the sim.
PW2 Vishnu Suman has stated that he had activated sim number 9828746960 and it’s ID was sent by the shop-keeper, in cross-examination he
has stated that ID of Ramesh is appended with sim documents and it contains signatures of Ramesh. Our retailer, Jahid had sent the ID and it was the
job of Jahid to cross-check ID with the buyer.
PW3 Shivram Meena has turned hostile and refuted his Police-statements.
PW4 Vishnu Prakash has stated that three to four years back Hansraj was his tenant, who had wanted four to five hundred rupees per telephonic
demand but he does not remember his phone number and he has further stated that he is unknown about Insaf.
PW5 Jahir Hussain, complainant-brother-in-law (looser) of deceased has stated that on 18.04.2011 his sister informed him that one man had been
there, who had taken deceased for laying earth-soil, he had come on 17th as well and brought deceased back in the evening on 17th but took him on
18th as well, a telephonic call was given to the deceased, he was searched in Sultanpur, further his sister went to Police Station to lodge FIR, she
called him, he was informed by CI Sahib that a dead body was lying near a drain at Dhakad-Khedi, the name of vehicle informed was matching, we
went to the spot and found that body was having multiple injuries, then we lodged FIR against those with whom enmity existed, which is Exhibit-P2
and contains his signatures. He has also confirmed his signatures on Exhibits-P3, P4, P5, P6, P7, P8 and has further stated that subsequently he could
know that deceased was taken away by Hansraj. Nisar, Mustkeen, Hussain had informed that they got deceased killed by hire-killer for ₹ 50,000/-
and has stated that Exhibit-P9 is photograph of the deceased, in cross-examination he has stated that he could know about the identity of killers, next
day and Hansraj had informed him that he had executed the act on their say, Hansraj met him at Police Station but he did not convey this in his Police
statements nor it was informed to Police during investigation, it was not conveyed to anybody and he is uttering the said fact for the first time in the
Court, he has further stated that Exhibit-P2 was written at Police Station, at that very time a phone call was received by CI Sahib regarding detection
of dead body, prior to him his sister had reached near the ditch area, he has also stated that he signed Exhibits-P2 to P9 in the Hospital. Testimony of
this witness is categorical that on the say of his sister Smt. Rukkan Bai, he had lodged report Exhibit-P2.
PW6 Akhtar Khan has accepted his signatures on Exhibits-P9, P3 to P7, P10 and P11, in cross-examination he has also stated that he had signed
documents at Police Station and at the time when dead body was given and is not aware as to what was written in the memos (fards) nor the contents
of the memos were read over to him, he has also stated that no memo was read over to him by police, he has further stated that he was first to reach
at the drain. Village Amalsara was in front of the drain and Village Dhakad-Khedi was on other side and Village was two to three hundred feet away
from that place and was visible from the place of occurrence.
PW7 Babu Bhai has been a witness of Exhibits-P10 and P11, he too has stated that he did not read nor the contents of Exhibits-P10 and P11 were
read over to him, on the say of police he had signed them.
PW9 Rukkan Bai, wife of deceased Abdul Ajij, has stated that a land dispute was there with the sons of Mohammed Khan, namely Mustakeem, Insaf
and Hussain for last four years, so they had shifted to Palayetha and tried their best to enter Gheesri but Mustakeem and others did not permit them to
enter. She has further stated that her husband was engaged in transporting gravels and earth-soil. Cases were sub-judice between them. On 17th
accused Hansraj, present in court, came to her house and asked that he had wanted to get laid earth-soil and it was conveyed to her husband, her
husband went to look the site and came back. Hansraj said that he will pay ten thousand rupees in advance, her husband said that advance would be
accepted after site inspection. Next day on Monday i.e. on 18th, accused present in court Hansraj, phoned and asked to come at 6:00 in the morning to
see the site and take money. She has further stated that her husband conveyed her this message that the person visiting yesterday had called him to
see the site, later her husband went away to witness the site, who did not return till 9:00 to 10:00 although had stated to come back by half an hour.
Phone calls were made to him, rings were passing but the phone was not picked-up, she tried to make phone till 3:00 to 4:00 then called her brother
Zahir Hussain to search him, her brother searched him all around the Village but he could not be traced till night, next day she went to lodge report
with Anta Police Station and lodged a Missing Person Report, at the time when the information was being given, a message came that one dead body
was found lying near Dhakad-Khedi drain, then her brother and kids went there and sent her back to home. She has further stated that accused
Hansraj had taken her husband from the home. Mustakeem, Insaf and Hussain have killed him altogether but they have screened themselves, in
cross-examination she has stated that Mohammed Khan was her elder father-in-law, who is no more and has conceded that his murder case was
registered against her and her husband, later her name was removed but case was there against her husband and her husband was arrested and jailed
in that case, she has also stated that she had lodged her FIR on the basis of doubts and has been candid by saying that she was suspecting, so their
names were given. Testimony of this witness discloses that she is not an eye-witness and she had lodged the FIR on the basis of suspicion. Police
statements of Rukkan Bai (PW9) A-4/25 dated 19.4.2011 recorded under Section 161 of CrPC does not disclose name of accused persons but has
stated that a boy aging 25-30 had come to her husband asking for laying of earth-soil.
PW10 Ramavtar is Constable pertaining to deposit of sample packets with FSL and has confirmed this aspect verifying Exhibit-P12.
PW10 Dr. Paras Jain has deposed conducting autopsy on the body of deceased Ajij @ Abdul Ajij on 19.04.2011, while Medical Officer with CHC
Anta, detailing injuries found on the body of the deceased he has stated that undigested food material was found in the stomach and such material was
also there in small intestine and according to the opinion of Medical Board, cause of death was ‘Coma’ as result of head injury and has
accepted Exhibit-P13, autopsy report having been drawn by him.
PW11 Radhey Shyam Suman another link evidence witness, pertaining to Malkhana has stated that on 23.04.2011 SHO had deposited blood stained
clothes, sealed packet of axe (Kulhadi), which were given to Constable Ramavtar on 30.05.2011 for deposit with the FSL and has accepted his
signatures on Exhibit-P14, being copy original Malkhana register and its copy as Exhibit-P14A.
PW12 Sumrath Lal Meena is a Judicial Magistrate conducting Test Identification Parade, verifying Exhibits-P15, P16, P17, P18 and P19 he has stated
that on 11.05.2011 he had conducted Identification Parade of accused and witness Rukkan Bai had correctly identified the accused, in cross-
examination Shri Sumrath Lal Meena has accepted that Exhibits-P18 and P19 does not have got description of individuals mingled at the time of
Identification Parade, he has accepted having noting and endorsing contents of ‘E’ to ‘F’ of Exhibit-P19 on the information of accused
Hansraj, perusal of which shows that concerned Magistrate was conveyed that “accused was shown to the witness prior to the Parade at Police
Station†and this observation bears importance being adverse to the prosecution.
PW9 Rukkan Bai has narrated nothing in respect of the Identification Parade or factum of identifying the accused person vide Exhibit-P19, while
examined.
PW13 Campoter Singh verifying Exhibit-P2 has stated that 19.04.2011 he had been to Dhakad-Khedi with SHO Pushpendra Singh, a written report
Exhibit-P2 was presented by Jahid Hussain, which was further handed over to Incharge Thana Ishtyak Ji and on basis of it FIR Exhibit-P20 was
registered, which contains his signatures, in cross-examination he has also stated that Jahid had met him at the place of occurrence.
PW14 Ahsan has accepted his signatures on Exhibits-P3, P4, P5, P6, P7, P9, P10 and P11, in cross-examination he has accepted that three to four
people amongst them, had altogether signed on memo Exhibits-P3 to P11.
PW15 Mahaveer, a witness to recovery of weapon of assault i.e. kuladhi, has stated that it was seized before him vide Exhibit-P22, clothes Exhibit-
P21 and its spot-map being Exhibits-P23 and P24, in cross-examination he has stated that the memos were signed on 23rd, he has also stated that he
does not know that for what reason and for what purpose his signatures were taken by the Police and has further stated that on the advise and on the
say of Policeman, he had signed the memos and has thus diminished the creditworthiness of recovery, he has stated that Policeman did not execute
any proceedings and act in front of him nor the contents of memos were read over to him, he has also stated that he cannot say the number of memos
upon which his signatures were taken, Policeman had said that “you just put your signatures rest would be taken care of by we peopleâ€, he has
further stated that he had denied to sign the papers, which goes to suggest that the evidentiary value of the testimony of this witness becomes
worthless, he has also said that he was briefed by Policeman, so he is deposing, which is formidable for the prosecution.
PW16 Mohd. Ali, another witness of recovery, has not delineated modus of recovery that on the instance of accused the said recovery of kuladhi was
effected, he has merely stated that Police had recovered kuladhi with a wand nearby a canal and a Safi, shirt and one pair of shoes were recovered
vide Exhibits-P21, P22, P23 and P24, in cross-examination he has narrated that all the memos were signed together, which also diminishes the
creditworthiness since the Exhibits would have been drawn in sequence not altogether, so signing of all the papers together, casts a shadow of doubt
on the veracity of these Exhibits, he has also stated that he does not know as to what was scribed by the Police and those memos but all were pre-
written, which maligns the creditworthiness of these Exhibits, he has accepted that deceased was known to him, he has further stated that he had also
signed certain documents at Police Station, which makes the things dubious.
If we weigh the testimony of Investigating Officer in respect of recovery of weapon of assault, then we find that PW19 Pushpendra Singh has stated
that the recovery was made from open place.
Recovery memos Exhibits-P21 and P22 have got a noting that accused was Ba-parda (vieled), how his identity was established by the recovery
witnesses and how they came to know, face cladded accused person that he was Hansraj, is also obscure which questions the worth of recovery and
makes it highly dubious, not worthy to be believed.
PW17 Ishtyak Ahmad is ASI, who has registered FIR on presentation of Exhibit-P2.
PW18 Abdul Raheem is a Photographer, who had clicked the photographs Exhibit-P22 to Exhibit-P31, in cross-examination he has stated that he does
not know the identity of deceased and cannot say that the deceased would have met with a road mishap by motorbike.
PW19 Pushpendra Singh, Investigating Officer has narrated different facets of investigation undertaken by him and has accepted that he had got call
details from the mobile of Shivram Meena (who has turned hostile), he has also narrated call details of the mobile of Abdul Ajij being Exhibit-P37 and
call details of accused Hansraj being Exhibit-P38, he further stated that fact of transaction of `50,000/- did not appear at the time of investigation, he
has accepted that Exhibit-P2 has got no reference of Hansraj and has accepted that the recoveries made from Hansraj, were made from open area
and anybody can approach at the places shown in Exhibits-P21 and P22 easily, he has also stated that he did not tally signatures of Hansraj from the
form pertaining to ID of Ramesh Chand, which mars the theory of prosecution that upon ID of Ramesh Chand, Hansraj had got mobile sim issued, it
was further asserted that apart from phone sim connection evidence nothing was found against accused Hansraj and Hansraj was connected with the
crime because of phone sim.
PW20 Ramesh Chand has stated that one year back accused Hansraj had been to him with assurance of arranging BPL Loan of ₹ 75,000/- for him,
when Hansraj narrated this then Suraj, Jagdish and Govardhan were together and he had given his documents alongwith ₹ 5000/-, he has also said that
Hansraj had been to him for the first time.
An individual in need of BPL Loan of ₹ 75,000/- may not be able to render ₹ 5000/- forthwith without even obtaining the loan to an unknown person
and testimony of Ramesh Chand to this effect that he paid ₹ 5000/- to Hansraj, is itself doubtful, in cross-examination he has said that Hansraj was
brought to him by
Govardhan Dhobi but prosecution has failed to produce Govardhan Dhobi to fortify this important aspect, which weakens the story of the prosecution,
he has also stated that Hansraj was not known to him from retro. He has further stated that his son did not buy sim in his name and he did not enquire
his son in respect of any such buying.
Appraisal of entire evidence does divulge that prosecution has miserably failed to prove its case. So far as testimony of recovery witnesses is
concerned, the said recovery is said to have been made from an open area, accessible to all and PW15 and PW16 witnesses to the recovery, have
themselves uttered adverse to the creditworthiness of recovery and nothing positive has been stated by them that they were led by accused to a
certain spot for recovery and on his instance, alleged recovery was made, even this vital delineation lacks in the evidence. Exhibits-P20 and P21,
recovery memos, have got details that accused was “Baparda†(face cladded), which goes against the prosecution as to how the identity of
accused person was established by the witnesses that face cladded individual was accused Hansraj. Smt. Rukkan Bai has uttered nothing that she
identified the accused person during the Parade.
Magistrate conducting Test Identification Parade PW12 Sumrath Lal Meena has conceded that he was informed by the accused about ‘E’ to
‘F’ text, which discloses that the accused was shown to the witness at Police Station, this also goes against the creditworthiness of the
Identification Parade and a suspicion hovers that accused was pre-shown to the witness, for the reason when recovery has become doubtful, then
testimony in respect of its serological examination and its FSL looses worth.
In Padala Veera Reddy v. State of Andhra Pradesh 1989 Supp. (2) SCC 706, the Supreme Court has observed that in
matters of circumstantial evidence, the evidence must satisfy the following texts:-
(1)Â 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)Â 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 In Varun Choudhary v. State of Rajasthan 2011 Crl.L.J. 675, it hasÂ
been held that where chain of events is doubtful, no conviction can be based  and it is settled legal
proposition that in a case of circumstantial evidence there must be complete chain of events which would lead to a conclusion that the accused was
the only person, who could have committed that offence and none else. In Musheer Khan alias Badsah Khan v. State of Madya Pradesh (2010) 2
SCC 748 it has been observed that in cases of circumstantial evidence complete chain of circumstances must be looked and snapped or scattered links
are not enough to convict the accused and in Sanatan Naskar v. State of West Bengal 2010 (3) R.C.R. (Cr.) 629 page (S.C.), it has been held that
court below took a wrong view of the matter while convicting the accused in a case, where chain of events of the case was not proved beyond
reasonable doubt.
In Jiten Besra v. State of West Bengal (2010) 2 S.C.C. (Cr.) 438, and in Kamla Devi v. State of Delhi 2012 (2) J.C.C. 1457 (Delhi), the Supreme
Court has observed that once it is found that circumstance could not point out towards guilt of accused, without any other inference being probable,
the accused must get benefit of doubt.
In a recent law as laid down in H.D. Sikand (D) Thro’s Lrs v. Central Bureau of Investigation & Anr. 2017 Cr.L.R. (SC) 58, the
Supreme Court has held that if the offence is not established and the prosecution fails to prove the offence beyond reasonable doubt, then order of
acquittal is justified.
In Narendra Singh and Anr. v. State of M.P. (2004) 10 SCC 699, the Apex Court has recognised presumption of innocence as
a human right and has gone on to say that :-
“30. It is now well settled that benefit of doubt belongs to the accused. It is further trite that suspicion, however grave may be, cannot take place of
a proof. It is equally well settled that there is a long distance between ‘may be’ and ‘must be’.
In Baijnath and Ors v. State of Madhya Pradesh (2017) 1 SCC 101, the Supreme Court has held that in the cases of deficiencies of proof, benefit
would be available to the person charged and in Narendra Singh and Anr. v. State of M.P. (supra) the Apex Court has also held that in event of there
being two possible views, one supporting the accused should be upheld and the Supreme Court has recognised presumption of innocence as a human
right.
The Principle of circumstantial evidence has been reiterated by the Supreme Court in a plethora of cases. In Bodhraj @ Bodha and Others v. State
of Jammu & Kashmir (2002) 8 SCC 45, wherein the Supreme Court quoted number of judgments and held as under :-
“10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accued or the guilt of any
other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99, Eradu v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State of
Karnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar
Chatterjee v. State of M.P. 1989 Suppl. (1) SCC 560). The circumstances from which an inference as to the guilt of the accused is drawn have to be
proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
In Bhagat Ram v. State of Punjab AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances
the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any
reasonable doubt.â€
Apex Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus :-(SCC pp. 206-07, para 21)
“21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be
fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left
in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally
inconsistent with his innocence.â€
Apex Court, while deciding Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, has laid down the conditions of
circumstantial evidence on which conviction could be made in view of Section 3 of Evidence Act.
Imperative it is for the prosecution to prove its case beyond realms of reasonable doubt against the accused persons to fasten culpability, which lacks
in the case under hand.
Recently, Supreme Court of India, while reiterating the precedents, has observed in Jose v. The Sub-Inspector of Police, Koyilandy & Ors
AIR 2016 SC 4581, as under :-
“It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a
criminal charge cannot afford to lodge its case in the realm of ""may be true"" but has to essentially elevate it to the grade of ""must be true"". In a
criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a
reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the
accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial,
prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if
two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the
accused ought to be adopted.â€
The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different
language the Rule that the burden of proof in a criminal case is on the prosecution to prove the Defendant's guilt. As explained above, the burden of
proof Rule has a number of functions, one of which is to provide a Rule of decision for the factfinder in a situation of uncertainty. Another function is
to allocate the risk of misdecision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than
wrongful acquittal the Rule is constructed so as to minimise the risk of the former.
The burden of overcoming a presumption that the Defendant is innocent therefore requires the state to prove the Defendant's guilt.
Adverting upon the entire evidence it is obvious that prosecution has failed to prove its case, there is severance and segregation in the link evidence,
the circumstances are not well connected, recoveries are also not established, issuance of sim card is also not in the name of the accused person.
Sum and substance is manifest that prosecution has failed to produce reliable and clinching evidence against the appellant-accused, hence appellant
deserves to be acquitted.
In the result, appeal is allowed and judgment impugned is set aside. Consequently, appellant-accused is acquitted from the charge of Section 302 of
IPC, he be set free forthwith, if his custody is not required in any other case, his bail bonds are discharged. Let a copy of this judgment be sent to
learned trial court for necessary information and compliance.
Learned trial court is also directed to comply with the provisions of Section 437A of CrPC.