State (NCT of Delhi) v. Kalyan Singh @ Kalla

16. It is a cardinal principle ofcriminal;jurisprudence thatthe prosecution has to stand on its own legs. The burden is so heavy on the prosecution that blemishes in the story ofthe accused cannot give a right to the prosecution to claim that the version of the prosecution should be preferred, whereas the burden on the accused is slightly light as he has to discharge the burden by preponderance of probabilities. CtL L.P.487/2015 Page5of16 I

17. PW[3] Dr. V.K Jha, Medical officer conducted postmortem and prepared the examination reportEx.PW3/A opined as under; "On the basis ofexamination, I opined the cause of death as cranio cerebral damage as a result ofblunt force diverted upon head by other party. All injuries were anti mortem in nature and injury no.5 was sufficient to cause death in ordinary course ofnature. Time since death was approximately 35 hours, xxxxx On opening, one iron rod was taken out. After examination,Ihad examined the iron rod and was of the opinion that the dnjuries mentioned in the PM report now Ex PW3/A could have been caused by the weapon/ofoffence sentinsealedpacket by the10with the sealofDSorsimilarsuch weapon." i ^ ^ ^ "'ft,at a

18. Perusal of the.ubovementioried testimony clearly establishes the fact that it \yas a homicidal death'. Now it would be |ignificant to determine!whether the prosecutioh;has established beyohd doubt that the death pf the deceased person„herein was caused by or was the result ofthe act done bythe respondent herein.

19. PW[8] Raj Kumar, brother of-deceased in his examination in chief deposed as under:.. "My brother wasdriver on a truckalong with accused Kalyan Singh @Kala. AccusedKalyan Singh@Kala is resident ofsame village in which I reside. I know accused Kalyan Singh@ Kala who is present in the court today (correctly identified). I am of a firm believe that accused Kala had committed the murder of my brother Deepak. My brother Deepak was carrying mobilephone atthe time ofthe incident."

20. This witness in his cross examination stated as under: CrL L.P.487/201S Page6of16 1> A "No quarrelhad takenplace between accusedand my brother in my presence but otherwise I cannot tell. When my brother used to pass through the village on the truck, he came to house."

21. PWll Amar Nath Singh, complainant in the present case in his examination in ehiefdeposed as under: "On 09.09.2012 on the day of Sunday, One truck N0.MPO[6] HC 1613 was parked at Shed no.15, Azadpur Fruit Mandi infront ofour Shed/shop. The said truck camefrom Hyderabad (Andhra Pradesh) with Mosami.f)ue to Sunday, the truckMas unloaded. In the truck)jtheijrwers'■^erkiSqmely Beepak and Kala At about*05:00 pmr^ the sweepers of APMC alongwith their staffcame therefor cleaningpurpose. The driver of the truck Deepak tried to start the truck but it CQuld not be started and thereafter he brought the) battery from some other truck and started the truck. Due to non- stdrtihg of truck, there was a quarrelbetween drivemDeepahandother driver Kala. After starting the truck through another batteip by driverDeepak the staffofAPMCcleanedthe arda and thereafter T directed the - driver Deepak to park his truck infront ofounshop (Adath). 1directedboth the driversDeepak and.Kala~hot4o remove the truckfrom infront ofour shop and1left-the Shed. On 10.09.2012 at about 05:15 am when I came back at ShedNo.15 in our shop 1had not seen the Truck No. MP06 HC 1613 in front of our shop (Adath). Thereafter, 1made a call to my owner and informed about the missing oftruck andhe toldme to trace the truck as it was parked nearby our shop. 1went in search of the truck andat a distance of50feet ahead of our shop, 1found said truck was parked there. 1 climbed the truck from the side of conductor and looked inside the cabin andfound the driver Deepak was lyingin apoolofbloodandhis legs were towards Crl. L. P.487/2015 Page 7of16 "1 the side ofconductor seat and head was towards the driver seat.Iwasshocked andscaredand made a call at 100 number from own mobile number i.e.

9310445679. The other driver Kala was not present there. 1 had a suspicion that there was a quarrel between driver Deepak andKala and Kala had killed the driverDeepakandleftthe truck, xxxxx On 09.09.12 there was no injury mark visible on the ^ faces ofdeceasedDeepak as well as accusedKalyan / Singh@Kala."

22. This witness in his cross examination stated "The quarrel between accused and deceased was not turned intofighting. They were only shouting loudly to each other due to nbn starting'oftheir truck 1had seen the accused and^deceased only on (M09:2012. Pribr to that day they were notknown to me andckme fir$time atourshop., | p * s « I

23. PW 16 Bhujbal in his cross examination stated as under;| ^ ^ ^ *> ^ "My statement was recorded byrthe police on

03.11 2012 atPS Mahendra Park, Delhi. Phad stated to the police thatPwas drivingdhe truck ofone Shiv Singh Gurjar (confronted- with the statement Ex.PW16/DA, where it is- not so recorded). 1 had telephoned the deceased Deepakfrom Sikri in MP.In mypresence, no quarrelhadever takenplace between the accused Kalyan and deceased Deepak and they had cordial relations with each other."

24. PW14 Dr.Sandeep Haldar on 12.092012 was posted as SR Medicines on BJRM hospital who examined the respondent and deposed in his examination in chiefihsX thepatientKalyan Singh was having alleged Crl. L.P.487/2015 Page8of16 7<- / history of human bite four days back therefore, I prescribed him tetanus injection andanti-biotic.

25. PW15 Dr. Gopal Krishna, medical officer,BJRM Hospital deposed in his examination in chiefas under: "On 12.09.2012, 1 was posted as CMC in the above mentioned hospital and on that day HC Raj Kumar brought one Kalyan Singh @ Kalla who was in custody for medicalexamination at09:45pm. Thepatienthadthe alleged history ofhuman bite and physical assaultfour days back. On localexamination, nofresh externalinjury wasseen atthe time ofexamination:Healing woundright indexfinger'andlateralside^of'right'ear...."

26. PW26 Ms. Sunita Gupta, Sr.^ Scientific-officer who prepared the FSL report deposed that on analysis blood-was detected'on'EXl, 2, 3, 7, 8, 10a, 10b,il0c, 12a, 12b, 13,14a,14b, 15,F[1] toFlO.Shefurtherstated f ' f n ^ that blood could not be detected Jon Ex.4, 5a, 5b, &6nMy detailed ft %•»:, s X JJ report is Ex.PW26/A which'b,ears\ my signature at point A&B. On serologicalexamination, Exl,J[2],J0b,'13,. Ma,"14b,Fl,F[2],F[4],F[6],F[8] & FIO wasfound to be human in_origin and ofA Group in ABO Grouping. - '' '

27. From the perusal ofthe above testimonies ofthe witnesses,it has been established that a quarrel had taken place between the deceased and the respondent which restrained only to the extent of shouting. It is clear from the above mentioned testimonies that the alleged history of human bite occurred four days prior to 12.09.2012 and there is no definite evidence to prove that the bite on the respondent was caused by the deceased. Moreover, no fresh external injury was seen at the time of examination on the respondent. The FSL report shows that Crl. L.P.487/2015 Page9of16 ■>4 blood was detected on the iron rod but there was no reaction in the column of ABO grouping/ remarks.

28. The last seen theory comes into play where the time-gap between the point of time when the accused and deceased were last seen alive and when the deceased found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in the present case to positively establish that the deceased was last seen with the accused as there was a long gap and the,possibility pf other persons coming in between existed. Therejs no |yp"witnessfo the alleged-incident. Merely on the ground that PW[8] -firmly'believ^ed or, PWll had" suspicion that the respondent hadkilled the deceased, it wouldnot be/|ustified to convict f[,-^1 I.. 'ft the respondent only on the basisiof suspicion and circumstantial ft i r ft' " ft ' tV I* s jS evidence llinless and until the 'evidence is corroborative with direct. ft ft proof given by the prosecution:\Wejh'ave scrutinized scrupulously and examined carefully the circumstances appearing in this case against the respondent and we arc of the view that the prosecution has failed to complete the chain of circurnstances holding respondent guilty of the crime beyondreasonable*ddubt.

29. It is well settled law that suspicion, however grave it may be, cannot take the place of proof. In Raj Kiimar Singh @ Raju @ Baiya Vs. State ofRajasthan: (2013) 5 SCC 722, the Hon'ble Apex Court held that:

Crl.L. P.487/201S Page 10 of16 and rnust not be permitted to takeplace ofproof. This is for the reason, thatthe mentaldistance between'may be' and mustbe isquite large anddivides vagueconjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between'may be'true and'must be'true, mustbe covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule mustbe applied.Insuch cases, while keeping in mindthe distance between 'may bel-true and 'must be'true, the Court must.^;maintain the vital"•^-idistance between conjectures andsure conclusions^to be arrived at, on the touchstone ofdispassionate:jMdicialscrutiny based upon a complete and,comprehensive appreciation of all featwesofthe case, as welLas the qualityandcredibility Pf ^idence brought hn ^^fecord. The Court must en^re, that miscarriage^-ofiusfice is avoided an'^ ifthe fd(^ and circumstances\ofd case so demand, tlfen the ber^tofdoubt must be given to the accused, keeping in mind thata reasonable doubt is notan imaginarf, trivial ora%erelyprdbableddubt, butafamdoubttka^is based upon reason, and common sense., ffjde: Hanumant Govind Narguhdkar and Anr. v. StatejofMP.:AIR 1952 SC 343; Shivaji Sahabrdo Bobade^ and Anr. v. State of Mahrashtra: AIR 1973 SC 2622; Sh'arad Birdhichand Sarda v. State of Maharashtra: AIR 1984 SC 1622; Subhash Chand v. State ofRajqsthan:(2002)1 SCC 702; Ashish Batham v. State of M:P.: AIR 2002 SC 3206; Narendra Singh and Anr. v. State ofM.P.:AIR 2004SC 3249;State through CBIv. MahenderSingh Dahiya:AIR 2011 SC 1017; and Ramesh Harijan v. State of UP.: AIR 2012SC 1979)It is a case ofcircumstantialevidence and it is well-settled that theprosecution has to establish each circumstance by independent evidence arid the circumstances so established shouldform a Complete chain without giving room to any other hypothesis and CrL L.P.487/20I[5] Page11of16 \1 should be consistent with his guilt and inconsistent with his innocence."

30. In Rajiv Singh Vs State ofBihar and Ors.:2016(1)ACR 510,the Apex Court reiterated the aforesaid principle held as under: "60. It is well entrenched principle of criminal Jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moraLconvictipn. Howsoever grave the allegedoffencp may be,iOthepvise stirringthe conscience ofany court', ^uspicidn'-alone cannot take the place of legal proof^^The well{established cannon of criminal justice isfiifoulep'^the^ch P^pof. In unmistakable terms, it^sythe mandate of lawxthat the prokecution in order to sucpeedin a criminalftridh has to II • "v t % 'X'" < ^ proye the charge(s)beyondallreasonable doubt. | 6n^The above enunSiatiohslresonated umpteen ti^es to be Reiterated inRaj'Kumior^Singh@ Raju @| Batya V.StpteofRajasthan;,(2013),[5] SCC 722 as siAcinctly sumiharizedinparagraph 21 as hereunder: Jf

21. Suspicion, however grave it may/be, carm^ take the place ofproof and there is a largddifference between somethingihat "rnayfej-proved and "willbeproved".In a criminal trial, suspicion no matter-how strong, cannot and must not be permitted tolake place ofproof. This is for the reason thatthe mentaldistance between "may be" and "must be" is quite large and divides vague conjecturesfrom sure conclusions.In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place oflegalproof. The large distance between "may be"true and "must be"true, must be covered by way ofclear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemnedas a convict, and the basic andgolden rule must be applied.In such cases, while keeping in mindthe Crl.L.P.487/2015 Page12of16 \% distance between "may be" true and "must be"true, the court must maintain the vital distance between conjectures andsure conclusions to be arrived at, on the touchstone ofdispassionatejudicialscrutiny based upon a complete and comprehensive appreciation of all features ofthe case, as well as the quality and credibility ofthe evidence brought on record. The court mustensure that miscarriage ofjustice is avoided and ifthefacts and circumstances ofa case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but afair doubt that is based upon reason and-common;sense..' '

31. In Prabhoo Vs. State of UP,AIRiJ963 Supmme Court 1113, it has been held that circumstantial.bvidbnce must be such as to lead to a conclusion which on any reasonab,le hypothesis is consistent only with I > the guiltofthe accused person and not with hisinnocenc|: fl > 1 f H "idk Therefore, the question before us is thisfIs the production ofthe blood-stained'axe and clothefread in the light ofthe evidence regarding motive sufficient to lead to the'conclusion that the appellant must be the murderer? It is well-settledthat circumstantial evidence must be much as to lead to d conclusion which on any reasonable hypothesisin-consistent only with the guiltof the accused person and not with his innocence. The motive alleged in this case wouldoperate notonly on the appellant but on his father as well. From the mere production ofthe blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the bloodstained articles had been kept in the house, the appellant mightproduce the blood stained articles when interrogated by the Sub- Inspector ofPolice. It cannot be said that the fact of. Crl. L.P.487/2015 A production is consistent only with the guilt of the appellant and inconstant with his innocence. We are of the opinion that the chain ofcircumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the shortout of ascribing certain statements to the appellant which were clearly inadmissible."

32. In the case ofDr.Sunil CliffordDaniel Vs. State ofPunjab:(2012) 11see205,the Hon'ble Apex Court has held: "In a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way ofreliable and clinching evidence, and the circumstances so proved mustform a complete chain of events, on the basis of which, no conclusion other than one ofguilt ofthe accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitutefor proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilstfinding an accused guilty, solely on the basis ofthe circumstancesproved before it."

33. A criminal offence is a crime not'only againstan individual but also against the society, the inyestigating agency have a sanctified, legal and social obligation to exhaiisf all its experience and expertise to ferret out the truth and bring the culprit to book. The manifest defects in the investigation in the instant case demonstrate an inexcusable failure on the part of the authorities concerned to abide by their paramount imperative.

34. In Mrinal Das and Ors. Vs. The State of Tripura reported in AIR 2011SC3753,the Hon'ble Apex Court held that: "It is clear that in an appealagainst acquittal in the absence of perversity in the judgment and order. Crl. L.P.487/2015 Page14of16 interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, ifthe appeal is heard by an appellate court, being thefinalcourtof fact, is fully competentto re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise ofsuchpower and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal providesforpresumption in favour of the accused. The presumption of innocence is available to the person and in criminalfmkpmdence every person is presumedto bp innocent unlesslie Is'proved guilty by the competent, court If two rdafdnable Mews are possible on.theMasis of'the\evidence on record, the appellate^court should\ noV disturb thC'findings of acquittal. There is no.limitation on the part of the app(flate'courtto review the evidence upon whic\the order of acquittal is"^found and to come to its own conclusion. The appellate icourt can also reviewfhe conclusion arrived at. by the trial Court with respectto both facts and law. While dealing with the appealagainst acquittalpreferred by the Stqte, it is thefuty^oftheappellate courtto'marshal the entire evidence on record'and only by giving cogent and adequate reasonsset aside thejudgment ofacquittal. An order of acquittal is to be interfered with only when there are "compellingandsubstantial reasons"for doingso. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competentto reverse the decision of the trial Courtdepending on the materialsplaced." Crl. L.P.487/2015

35. In the case ofState ofMadhyaPradesh v.DalSingh & Ors.,reported in 2013 (8) SC 625, the Hon'ble Supreme Court has held that the appellate court while considering the appeal against the judgment of acquittal shall interfere only when there are compelling and substantial reasons for doing so and ifthejudgment is unreasonable and relevant materials have been unjustifiably ignored, it would be a compelling reason for interference.

36. While deciding the present leave to appeal,the aforestated principles culled out by the Apex Courtrare to be keptJn view. In the present V J » case from the evidence which has emerged on record, we conclude,T-,? -i' ' that the learned Trial Courf rightly observed that the prosecution failed to prove its case against the respondenfTbeyd|id reasonable doubt, the prosecution has not made but a case to grani the leave to fi I \ '1 4^ i 5 < 1 ? jS r-5? appeal arid the view taken by.the learned Trial Courtfor acquitting the I • ' ■,[1] responderit,was possible and plausibles ^ $

37. In totality dfthe facts and circumstances,we do not find any infirmity in the impugnedjudgment;Accordingly, no:,pounds are made out to interfere in the impugnedjudgrhent passed by learned Trial court and the leave to appeal petition is dismissed. SANGEfsCDH SEHGAL,J G.S.SISTANI,J