1994 Supreme(SC) 787

SUPREME COURT OF INDIA
G.N. RAY AND N.P. SINGH, JJ.
Tarseem Kumar, Appellant
Versus
The Delhi Administration, Respondent.
Criminal Appeal No. 212 of 1981 with Review Petn. (Cri.) No. 241 of 1981
Decided on 18-8-1994.

Headnote:(i) Indian Penal Code, 1860, Section 302 - Conviction under - Appeal - Circumstantial evidence - No motive established - Recovery of dead body of the victim on 18.10.1974 from a house belonging to P.W. 19. Main circumstantial evidence that the appellant was in exclusive possession of the room in which the dead body was found, was not proved - Extra judicial confession allegedly made not proved - Conviction not sustainable merely on recovery of some or the articles belonging to the appellant in one of the rooms in question and alleged recovery of clothes with blood stained. Benefit of doubt to be given to the appellant.

       Held: Before other links of the circumstantial evidence are examined to ascertain as to whether they have been proved beyond reasonable doubt, it will be proper first to examine, as to whether the appellant had come in exclusive possession of the portion of the house in question, from where the dead body of the victim was recovered. The house belonged to Shri La1 (P.W. 19). P.W. 19 had purchased that house on 29.4.1974. Two rooms of that house had been given on rent to Kamla Prasad (P.W. 1). The appellant is alleged to have approached P.W. 19 through his son Mange Ram (P.W. 29) who was a class-fellow of the appellant, for giving three rooms on rent, for storing garments for export. P.W. 29 asked his father P.W. 19 to give the three rooms to the appellant on rent. The appellant gave Rs. 50/- to P.W. 19 on 10.9.1974 as advance. According to P.W. 19, he gave possession of the three rooms to the appellant the same day. In September 1974 the appellant visited the said house from time to time, but did not store anything therein. Later he told P.W. 19 that he had lot of things to store and as such the space was not sufficient. It is the case of the prosecution that thereafter P.W. 19 asked P.W. 1 to vacate the two rooms in his possession so that those two rooms could also be given to the appellant. P.W. 1 assured P. W. 19 that he would vacate the rooms within 5-10 days. He vacated the two rooms on 13.10.1974. On that very day P.W. 19 gave possession of those two rooms to the appellant, who locked the same. (Para 10)

       According to the prosecution, the appellant had continued in possession of three rooms from 10.9.1974 and five rooms since 13.10.1974 till 18.10.1974 when the dead body of Gulshan was recovered from the courtyard of the house afore said. P.W. 19 as well as his son P.W. 29 asserted that during this period the appellant was in exclusive possession of the house. It is, however, surprising that during this period even according to prosecution, no furniture or any other article except the odd articles found by the police in the morning of 19.10.1974 had been kept by the appellant. On behalf of the appellant, it was pointed out that in normal course of events, it was not expected that P.W. 1 who was in possession of the two rooms should have vacated those rooms in middle of the month and on the same day the possession of those rooms could have been handed over to the appellant. If the appellant was in such pressing necessity for those two rooms, in normal course it was expected that he would have stored the ready made garments in the other three rooms, which he had taken possession on 10.9.1974. But according to P.W. 19 and others, neither he had stored anything nor he used to remain in those rooms. The witnesses have stated that sometimes he used to come and stay in the house for few hours. None of the witnesses have stated that he was carrying any business from the said house. It has been rightly pointed out that normally any tenancy starts from beginning of a month. Even in the present case the arrangement was that the appellant will take the aforesaid two rooms w.e.f. 1st of November 1974. But P.W. 19 has stated that he gave possession of the two rooms to appellant on 13.10.1974 itself. In normal course all these aspects are not of much consequence, but they assume importance, in view of the fact that P.W. 19 is the owner of the house and dead body was recovered from that house. (Paras 10 & 11)

       Further Held: Apart from P.W. 19, the other 4 witnesses who have proved the involvement of the appellant are all connected with P.W. 19. P.W. 29 is the son of P.W. 19. P.W. l claims to be the tenant of those two rooms and said to have vacated those two rooms on 13.10.1974 when possession was taken by the appellant. The murder is alleged to have committed in one of those two rooms sometime on 16.10.1974. The two labourers P.Ws. 2 and 3 who are alleged to have been engaged by the appellant for digging the flower pit, in the courtyard, arc also connected with P.W.

       19. According to the prosecution case, on 18th evening they had gone to dig the pit as asked by the appellant When appellant was not there and they found foul smell coming, they went to P.W. 19 and reported about the foul smell coming, from the house. It is not in dispute that P.Ws. 2 and 3, the labourers were known to the owner of the house, P.W. 19. In normal course, it was not expected of the appellant that for concealing a dead body, he would have engaged labourers P.Ws. 2 and 3 who were connected with P.W. 19, the owner of the house. (Para 12)

       Consequently Held: Why and how P.Ws. 2 and 3 went to inform P.W. 19, the owner of the house about the four smell when the appellant was not there, has remained a mystery. The evidence of P.Ws. 2 and P.W. 3 cannot be accepted because they allege a highly improbable conduct on the part of the appellant. On behalf of the appellant, it was suggested that P.W. 19 took undue interest, no sooner dead body was discovered, to save his son P.W. 29, because the portion of the house till 16.10.1974, was not in exclusive possession of the appellant. It was pointed out that the P.W. 19 produced the main witnesses P.W. 1, P.W. 2 and P.W. 3, the same night before P.W. 31, the Sub Inspector, which was unusual in the facts and circumstances of the case. (Para 14)

       Finally Held: So far the recovery of articles from the house in question, including a glass with the finger prints of the appellant is concerned, it is not of much consequence. The appellant being a class friend of P.W. 29, the son of the owner of the house, was visiting off and on, the rooms which he had taken on rent. But the fact remains, that if the appellant had come in exclusive possession of those rooms, in normal course, he would have brought furnitures and other articles including the readymade garments for which he had taken the rooms from P.W. 19. We have already mentioned above that no explanation has been furnished on behalf of the prosecution that if the appellant was in such a pressing need, for the remaining two rooms, why the readymade garments had not been stored in the three rooms which the appellant had taken on 10.9.1974. Once the prosecution case, that five rooms were in exclusive possession of the appellant has been rejected, merely certain articles, belonging to the appellant were found in one of the rooms, shall not be an evidence of conclusive nature, on basis of which it can be held that the appellant had committed the murder of Gulshan Rai. (Para 16)

        (ii) Evidence - Murder case - Circumstantial evidence - Circumstances to be proved Motive whether relevant?

       Held: The case of the prosecution solely rests on circumstantial evidences. As the case is based solely on the circumstantial evidence, the Court has to be satisfied that (i) The circumstances from which conclusion of guilt is to be drawn has been fully established. (ii) An the facts so established are consistent only with the hypothesis of guilt of the appellant and they do not exclude any other hypothesis except the one sought to be proved. (iii) The circumstances on which reliance has been placed are conclusive in nature. (iv) The chain of the evidence in the present case is such that there is no scope for any reasonable ground for a conclusion consistent with the innocence of the accused. (Para 6)

       Further Held: Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of a motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. In the present case, no motive on the part of the appellant to commit the murder of Gulshan, has been suggested or established on behalf of the Prosecution. (Para 8)