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2022 (7) TMI 1374 - SC - Indian LawsOrder of acquittal passed on a scrutiny of evidence before it by the District and Sessions Judge, got overturned by the impugned judgment of the Division Bench of the High Court of Delhi - existence of motive along with the recovery made under Section 27 of the Indian Evidence Act - HELD THAT:- Having accepted the views of the trial Court holding that the last seen theory has not been proved, a conviction cannot be rendered on the basis of evidence, which was rejected qua motive, through the mouth of PW2. The trial Court gave its reasons for rejecting the evidence of PW2. It had the advantage of seeing and assessing the demeanor of this witness, which the High Court did not have. PW2 has stated that there was a money transaction which led to a dispute between the accused and the deceased and that he had assured the appellant that it would be repaid. This also occurred few days before the date of occurrence. When we deal with a case of circumstantial evidence, as aforesaid, motive assumes significance. Though, the motive may pale into insignificance in a case involving eyewitnesses, it may not be so when an accused is implicated based upon the circumstantial evidence. There is no sufficient link to come to the irresistible conclusion pointing the guilt only to the appellant. Much reliance has been made on the recoveries made. When the observation Mahazar was prepared along with the sketch and the inquest conducted, admittedly, scores of persons were present. No independent witness was made to sign and the evidence on behalf of the prosecution that they did not volunteer to do so, cannot be accepted. A witness may not come forward to adduce evidence at times when asked to act as an eyewitness. However, when a large number of persons were available near the dead body, it is incomprehensible as to how all of them refused to sign the documents prepared by the police - the trial Court rightly doubted the recovery under Section 27 of the Act. There was no need to take PW2 and thereafter make him to sign. There are a lot of contradictions in the evidence rendered. PW2 has stated that many persons were available at the time of 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 similar statement was also made by the Investigating Officer. The report of the Ballistic Expert is obviously a scientific evidence in the nature of an opinion. It is required to use this evidence along with the other substantive piece of evidence available. The report is inconclusive with respect to the firearm belonging to the appellant being used for committing the offence - there are no perversity in it and the law presumes double presumption in favour of the accused after a due adjudication by the trial Court. Appeal allowed.
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