Ramyash @ Lallu & Anr v. State

judgment is extracted below: "10. It is seemly to state here that the whole case of the prosecution rests on the circumstantial evidence. The Page 14 of24 learned Trial Judge as well as the High Court has referredto certaincircumstances.When a case is totally hingeson the circumstantialevidence,it is theduty ofthe Court to see that the circumstances which lead towards the guilt of the accused have beenfully established and they must lead to a singular conclusion that the accused is guilty of the offence and rule out the probabilities whichare likelyto allowthepresumptionofinnocenceof the accused. "

¶30What, therefore, needs to be seen is whether the prosecution has established the incriminating circumstances upon which it places reliance and whether those circumstances constitute a chain so complete as not to leave any reasonable ground for the appellant to be found irmocent.

¶31With regard to Last Seen Evidence, it will be relevant to take into consideration the deposition made by PW6 (Surender Jha) who in his examination in chief clearly stated that he had seen the helper (Appellant Ramyash) at the time of loading of articles in the truck and further stated that the helper who had loaded the articles in the truck on 12.01.2006 is present in court. However, PW6 in his statement nowhere mentioned that he had seen the deceased with the appellant no.l at the time of loading of the articles in the truck. Hence we are of the view that the observation made by the learned trial court that the appellantwas last seen with the deceased is incorrectand does not connectthe appellantRamYashwiththe commissionofthe offence.

¶32In the case of in Muhibur Rahman V5. State ofAssam (2002) 6 SCC 715, the Apex Court observedthat: CrLAppealNo. 262/2015 15of24 "The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity ofplace and time between the event ofthe accused having been last seen with the deceased and thefactum ofdeath, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity oftime and place. "

¶33In Bodhraj vs. State of J&K (2002) 8 SCC 45, the Hon'ble Supreme Court held that: "It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion ofguilt in those cases."

¶34Keepingin viewthe law discussedabove and onthebasisof evidence on record, we are of the opinion that, the evidence of last seen becomes doubtful.

¶35Regardingthe circumstanceof recoveryof truck, we are of the view thatthis by itselfcannotbe a circumstanceto implicatethe appellants unless it forms part of the chain of circumstances.PW4 in his testimonystatedthat when the recoveryof truck was effected,it was in good runningconditionand all the articlesi.e. 20 rolls ofroofseal which were loaded in the truck were lying intact despite the duration of gap of 7/8 days from the date of incident.Thus we fmd it to be CrLAppealNo. 262/2015 Page16of24 ^1 quite unnaturalthat had there been any intentionon the part of the appellantsto murderthe deceasedand loot or take away his articles, the appellantswould have waited for a week after committingthe murder of the deceased to do away with the stolen articles and would have parked the truck in a public place which is accessible to all.

¶36The counsel for the appellants also raised this contention that the > recovery of the dead body is from a crowded place and that the pointingout of the dead body by the appellantsis of no consequence. According to us this contentionholds ground. With regard to this also, we find that there is insufficient material to link the appellants with the murder of the deceased. First of all, pointing out of places by appellants was in the knowledgeof police, hence this was of no legal consequence. Secondly, no alleged weapon of offence has been recovered and neither the mobile phone of the deceased nor the call * details have connectedwith appellantsand not even proved by the prosecution. There is, therefore, no link between the recoveries affected by the prosecution that links the appellants with the deceased.

¶37Counsel in her contentions pointed out that the prosecution failed to establish the motive for the offence. From the evidence adduced by the prosecution, we are of the view that this contention is not devoid of merit. Prosecution has not come out with any motive for commission of the crime by the appellants. Law is settled that it is not necessary for the prosecution to allege any motive and if there is reliable direct evidence, absence of motive will not adversely affect the prosecutioncasebut, wherethe prosecutionallegesmotive,it must Page17of24 r prove it and absence of satisfactoryproof is liable to cast a grave doubt as to the correctnessof the prosecutionversionsSee State of U.P. V. Hari Prasad 1974SCC203,Darbar Singh v. State ofPunjab, 1975 SCC and Bishan Das v. State ofPunjabl975 SCC 145.

¶38In Prem Kumar v. State of Bihar (1995) 3 SCC 228 the Apex Court discussed the concept of motiveas applicable to Indian % criminal jurisprudence and held as under: "5. ...It is true that this Court has held in State of U.P. V. Mod Ram (1990) 4 SCC 389 that in a case where the prosecution party and the accused party were in animosity on account of series of incidents over a considerable length of time, the motive is a double-edged weapon and the key question for consideration is whether the prosecution had convincingly and satisfactorily established the guilt of all or any ofthe accused beyond reasonable doubt by letting in reliable and cogent evidence. Very often, a motive is alleged to indicate the high degree of probability that the offence was committed by the person who was prompted by the motive. In our opinion, in a case when motive alleged against the accused is fully established, it provides a foundational material to connect the chain of circumstances. We hold that ifmotive isproved or established, it affords a key or pointer, to scan the evidence in the case, in that perspective and as a satisfactory circumstance of corroboration. It is a very relevant, and important aspect -

(a) to highlight the intention ofthe accused and

(b) the approach to be made in appreciating the totality of the circumstances including the evidence disclosed in the case. The relevance ofmotive and the importanceor value to be givento it are terselystated by Shamsul Huda in delivering the Tagore Law Page18of24 Lectures (1902) - The Principles ofthe Law ofCrimes in British India, atpage 176, asfollows: But proof ofthe existence ofa motiveis not necessary for a conviction for any offence. But where the motiveisproved it is evidence of the evil intent and is also relevant to show that the person who had the motiveto commit a crime actually committed, it, although such evidencealone wouldnot ordinarily be sufficient. Under Section8 of the Evidence Act any fact is relevant which shows or constitutes a motive or preparation for anyfact in issue or relevant fact. "

¶39On the aspect of importance of motive in a case of circumstantial evidence,thejudgmentof the SupremeCourtin AmitavaBanerjee v. State of West Bengal (2011) 12 SCC 554, also sheds valuable light. The legal position as laid down by Wills in his book 'Circumstantial Evidence' and in prior judicial pronouncements was relied upon by the court which may usefully be extracted and reads as follows: "4L Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not "take the place of proof while finding the accused guilty."

¶40With regard to the Test Identification Parade of the appellant Ram Yash, it will be relevant to take into the consideration the observation of the Learned Trial Court wherein it is specifically mentioned that Crl.AppealNo. 262/2015 Page 19of24 --V PW6 Surinder Jha during his cross examination stated that he had been shown the photographs of the accused Ram Yash in the Police Station. It is pertinent to mention the cross examination of PW4 Simran Pal Singh in this regard wherein he has stated that the appellant Ram Yash was shown to him in the Police Station Sukhdev Vihar after one or two days of the incident. /

¶41The Apex Court in Laxmipat Choraria and Ors. v. State of Maharashtra AIR 1968SC 938, categoricallyobservedthatshowing of a photograph prior to the identification makes the identificationworthless. The Supreme Court also observed that there could be no doubt that if the intention on the part of the prosecution is to rely on the identificationof the suspect by a witness, his ability to identify should be tested without showing him the suspect or his photograph or furnishing him the data for identification. The same view was taken in the case of N.J. Suraj v. State (2004)11 see 346 wherein the Supreme Court observed that in view of the fact that the photograph of the accused had been shown to the witnesses, their identification in the test identification parade became meaningless and no reliance could be placed thereon.

¶42From a consideration of the aforesaid decisions of the Supreme Court, it is apparent that the purported identification by PW6 Surender Jha and PW4 Simran Pal Singh at the time ofTest Identification Parade is worthless because the appellant as well as his photograph were shown to them prior to the Test Identification Parade conducted on

23.01.2006. Hence, the appellants had already been shown to the said CrLAppeal No. 262/2015 Page 20 of24 witnesses even prior to the conduct of the Test Identification Parade. Consequently,we are in agreementwith the submissionmade by the learned Counsel for the appellants that none of the witnesses have identifiedthe appellants.

¶43With regardto the Test IdentificationParadeofthe case propertyi.e. watch Ex.Pl(makeSonata,goldencolour)belongingto the deceased, ^ it will be relevantto take into the considerationthe depositionsof PW2 Kishore Kumar and PW22 Hakim Shah.

i) PW2 in his cross examination stated that " I do not remember if in my first statementto the policeafter seeingthe dead body I told to police that my brother in law used to wear watch make Sonata which is present on his dead body or is missing due to lapse of time. It is correctthat watch Ex.P-1 are freely available in the market. I had identified the watch before the Ld. MM out of 20-25 watches shown to me. I had come along with 10 for the TIP of the watch but I cannot say whether watch was in the pocket of the 10 or was tied in the handkerchief or was in the sealed condition."

ii) PW22 Hakim Shah (landlord of appellant Madan Kumar) deposed in his cross examination "It is incorrect to state that Madan was with Police when they visited my house to recover the watch. Vol. Police had called me to the PS, Madan was in their custody, however, Madan was left in the PS and I was made to accompany the police to my quarter" and he fiirther CrLAppealNo. 262/2015 Page 21 of24 testified that "I do not know what was written on Ex. PW-22/A (Seizure memo). I do not know to whom this watch belongs."

¶44Thus after perusing the above testimonies, we have reached to this conclusion that there is serious doubt regarding the recovery of the above mentioned case property and it nowhere links to the appellant Madan Kumar. It is beyond human imagination that the appellant Madan Kumar carriedthe incriminatingmaterial (watch make sonata) for about seven months from the incident

¶45In view of the law referred to in the paragraphs aforegoing,it is to be seen whether the prosecution has succeeded in establishing the sequence of circumstances which can be called conclusive in nature and there is no unbroken chain leaving a gap of missing links and such circumstancesare consistentwith the hypothesisof the guilt of the appellant.

¶46It is well settledthat when a case is based on circumstantialevidence, such evidence has to satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be proved must be cogentlyand firmlyestablished;secondlythe circumstancesshouldbe of definite and unerringly point towards guilt of the accused; and thirdly the circumstancestaken cumulativelymust form a chain so complete that there is no escape from the conclusion that within all human probabilitythe crime was committedby the accused and no one else.Inthe presentcase,evidencedoes not completethe chain.

¶47For the reasonsstated above, we feel that the evidenceon record, as broughtforwardby the prosecution,is insufficientto form acomplete CrLAppealNo. 262/2015 22of24 rr chain so as to convict the appellant on the basis of circumstantial evidence only. There is enough doubt in the case and the benefit goes to the appellants.

¶48We may refer to the case of Sohan V5. State ofHaryana 2001 3 SCC 620 wherein Apex Court observed that: ^ '"An accusedispresumedto be innocentuntil he is i found guilty. The burden ofproof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the sessions judge had reminded himself of the above mentioned basic or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided".

¶49In State of U.P. Vs. Ashok Kumar Srivastava 1992 Crl. L.J. 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

¶50In the light of the preceding discussion, we are of the view that the prosecution has not been able to establish the case beyond any shadow of doubt and this court is of the opinion that in the above conspectus Crl.AppealNo. 262/2015 Page 23 of24 of facts, the finding of guilt recorded by the learned Additional Sessions Judge, against the appellants cannot be sustained. In these circumstances, we are inclined to grant benefit of doubt to the appellant Ram Yash and appellant Madan Kumar and the appeal, therefore has to succeed.

¶51Consequently, we set aside the impugnedjudgment dated 03.06.2014 and order on sentence dated 25.08.2014 passed by the learned AdditionalSessionsJudge, Delhi, and acquitboth the appellants.The appeal stands allowed. They are directed to be released forthwith, in case they are not required in any other case.

¶52Copy of this order be sent to Superintendent Jail.

¶53Copy of the judgment along with Trial Court Record be sent back forthwith. MAY 29, 2015 gr CrI. Appeal No. 262/2015 SANGITA -X.

G. S. SISTANI, J.

SEHGAL, J. Page 24 of24

* IN THE fflGH COURT OF DELHI AT NEW DELHI + CRL.A. 262/2015 % Judgmentreservedon : 22"'^May, 2015 Judgmentdeliveredon: 29'^May, 2015 RAM YASH@ LALLU & Anr. Appellants Through: Ms. Anu Narula, Advocate Versus STATE Respondent Through: Mr. Sunil Sharma, APP for the State CORAM : HON'BLE MR. JUSTICE G.S. SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.S. SISTANI. J. 1. Present appeal arise out of a judgment dated 03.06.2014 and order on sentence dated 25.08.2014 passed by the learned Additional Sessions Judge in Session Case No. 51/2012, by virtue of which the appellants have been convicted under Sections 302/201/34 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"), and sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs.25,000/- each for the offence punishable under Section 302 of the Indian Penal Code, and in default of the payment of fine to fiirther undergo Simple Imprisonment for a period of six months; The appellants were further sentencedto undergo rigorous imprisonment for five years and to pay a fine of Rs. 5000/- each for the offence Page 1 of24 U' punishableunderSection201 ofthe IndianPenalCode, and in default ofthe paymentoffine to furtherundergoSimpleImprisonmentfor a periodofthreemonths.The appellantMadanKumaris also convicted under section411 of the Indian Penal Code and further sentencedto undergo rigorous imprisonmentfor a period of two years. All the sentenceswereorderedto runconcurrently. 2. The brieffacts of the case as noticedby the learnedTrial Court are- that: "Both accused Ram Yash @ Lallu @ Ramesh and MadanKumar have been facingtrial in this Courtfor the offences punishable under Section 302/34 of IPC on allegationsof the prosecutionthat on 12.01.2006at about 5:30 pm in a Truck bearingregistrationno. HR-47-7554 at footpath, Main Mathura Road, Opposite CRRI New DelhiwithinjurisdictionofPS New FriendsColony,both in furtherance of common intention committed murder of Shyam Kumar @ Panditwith knife and by pressinghis mouth with blanket. Both accused have also been facing trial in this court for the offences punishable under section 394/397/34 of IPC on the allegations of the prosecution that on the above mentioned date, time and place both accused in furtheranceof their common intentionafter committing murder of Shyam Kumar @ Pandit , both robbed his truck No. HR-47-7554, mobile phone, Rs.l200/-, wrist watch and some other articles from the pocket of dead body of the deceased. Both accused have also been facing trial in this court for the offences punishable under Sections 201/34 of IPC on the allegations that on the above mentioned date, time and place both in furtherance of their common intention after committing murder of Page 2 of24 r ^j- Shyam Kumar @ Pandit, both of them threw his dead body after wrapping it with lungi with intent to cause certainevidenceconnectedwith this offenceto disappear knowinglywith intent to screen themselvesfrom bigger punishment. AccusedRam Yash@Lallu@Rameshapartfrom above also facingtrial for the offencespunishableundersection 411 of IPC on the allegationsof the prosecutionthat on 19.01.2006 on Service Road, Rohini Sector 24 Near Metro Station Rohini, he was found in possession of loadedtruckcontaining20 cartonsofroofseal belonging to deceased Shyam Kumar @ Pandit which he got recoveredfrom there which he retainedor possessedor having or knowing reasons to believe the same to be a stolen property. After committal, charges were framed against both accused persons vide order dated 16.01.2007 to which accused persons pleaded not guilty and claimed trial." y 3. In order to bring home the guilt of the appellantsthe prosecutionhas examined 27 witnesses. Appellants alleged that they have been falsely implicated and claimed innocence in their statement recorded under Section 313 of Code of Criminal Procedure. Further they denied that any recovery has been affected from their possession or at their instance. 4. Ms. Anu Narula, learned Coun