BRIJESH MAVIversusSTATE OF NCT OF DELHI

                    [2012] 6 S.C.R. 803


                     BRIJESH MAVI                             A
                           v.
                STATE OF NCT OF DELHI
         (Criminal Appeal Nos. 824-825 of 2011)
                       JULY 3, 2012
                                                              B
   [SWATANTER KUMAR AND RANJAN GOGOi, JJ.]

     Penal Code, 1860/Arms Act, 1959 - ss. 302 and 460 r!W
s. 34 I s. 25 - Prosecution under - Sole eye-witness - He
named one accused who in tum disclosed involvement of C
appellant and one other accused - After arrest of appellant-
accused, recovery of weapon at his instance - Proceedings
abated against the named accused due to his death -
Conviction of appellant and the other accused by trial court -
High Court affirming the conviction of appellant-accused but , D
acquitting the other accused - On appeal by appel/ant-
accused, held: Conviction uls. 25 Arms Act was justified as
the recovery of the weapon at the instance of the appellant
was proved - However, conviction u/s. 302 and 460 rlw. s. 34
/PC not correct - No direct evidence to connect the appellant E
with the offences under /PC - Appellant was not identified by
the sole eye-witness - The case built up by prosecution on
the basis of circumstantial e.vidence did not prove
involvement of the appellant beyond all reasonable doubt -
Other serious lapses on the part of the prosecution not F
explained - Since proceedings against the named accused
had abated and one other accused was acquitted, culpability
of the appellant should not have been determined with the aid
of s. 34 /PC but on the basis of individual overt acts - There
was no evidence as regards individual acts of the appellant- G
accused.

    Appellant-accused was prosecuted u/ss. 302 and
460 r/w s. 34 IPC and u/s. 25 of the Arms Act. The

                           803                                H
    804     SUPREME COURT REPORTS            [2012] 6 S.C.R.


A prosecution case was that in a firing incident one person
  died. The eye-witness to the incident (PW-1) named one
  accused. On the basis of the statement of PW1, FIR case
   No. 438/2001 was registered. The Investigating Officer
  (PW 24) arrested the named accused, who disclosed
B about involvement of appellant and one other accused.
  The other accused was arrested thereafter. He and the
  .named accused were sent for trial.

       During the pendency of the trial, appellant-accused
  was arrested in connection with some other case. On
C interrogation, the appellant-accused admitted his
  involvement in the present case. On the basis of his
  statement, a .380? caliber revolver was recovered from a
  house along with three live .380? cartridges. Apart from
  the FIR 43.8/2001 u/ss. 302 and 460 r/w s. 34 IPC, another
D FIR No. 456/2003 was registered against the appellant.
  The ballistic expert stated that .380? revolver was in
  working condition and the crime fired bullets had been
  fired through the said revolver.

E     During trial, the named accused died and hence the
  proceedings stood abated against him. The trial court
  convicted the appellant as well as the other accused u/
  ss. 302 and 460 r/w s. 34 IPC and in addition convicted
  the appellant-accused u/s. 25 of Arms Act. In appeal, High
F Court affirmed the conviction of the appellant-accused
  but acquitted other accused.

       In appeal to this court, appellant-accused contended
  that he was not identified by the sole eye-witness; that
  the .recovery of his revolver was not proved by
G independent witness; that the bullets extracted from the
  body of the deceased since not sent for examination to
  ballistic expert, it was not proved that the bullets were
  fired fro11:1 the revolver recovered at the instance of the
  appellant; that the bullets proved to have been fired from
H the revolver, recovered at the instance of the appellant,
       BRIJESH MAVI v. STATE OF NCT OF DELHI           805


were not sent for serological examination to prove the        A
presence of human blood so as to establish that the
bullets had entered and exited the body of the deceased
and thus the conviction was not justified.

    Partly allowing the appeal, the Court
                                                              B
     HELD: 1. While the conviction of accused-appellant
u/s. 25 of th e Arms Act and the sentence imposed is
justified, the accused-appellant is entitled to the benefit
of doubt with regard to the offences under Section 302
and Section 460 read with Section 34 IPC. [Para 21] [822-     C
B-C]
     2. The accused-appellant, after being arrested in
connection with another case admitted' his involvement
in the present case. On the basis of statement made by        0
him before SI (PW1); ASI (PW 2) and Constable (PW 3) a
.380" Calibre revolver was recovered. The evidence of
PWs 1, 2 and 3 examined in connection with FIR Case No.
456/03 as well as the evidence of PW19 in the FIR Case
No. 438/01 (who was PW3 in FIR case No. 456/03)               E
indicates without doubt or ambiguity the detailed facts in
which the recovery was effected. The cross-examination
of the three witnesses has not revealed any fact which
would go in favour of the accused. The defence
witnesses, OW 1 and OW 2 have not succeeded in
demolishing the prosecution version inasmuch as DW 1          F
- admittedly was being interrogated in the police station
on the date when the recovery was made. On the other
hand, OW 2 - has failed to prove that he was a tenant
under DW 1, in respect of the Apartment in question from
where recovery was made, at the relevant time. In such        G
circumstances, the court will have to proceed on the
basis that the recovery, as claimed by the prosecution,
has been proved by the evidence on record. The above
finding would render the conviction of the accused-
~ppellant under Section 25 of the Arms Act wholly             H
   806      SUPREME COURT REPORTS            [2012] 6 S.C.R.

A justified. [Paras 17 and 18] [818-G-H; 819-A-E]

       3. The facts of the case demonstrate that there is no
  direct evidence to connect the accused-appellant with the
  firing incident involving the deceased. The only eye-
s witness examined by the prosecution, namely, PW-1 has
  categorically deposed that the accused-appellant was not
  present at the place of the crime on the date of
  occurrence and, in fact, he had seen the accused-
  appellant for the first time in court. The second person
  accompanying the named accused to the place of
C occurrence along with the firearm therefore remained
  unidentified. The prosecu"tion, in the absence of any
  direct evidence, has sought to build up its case on the
  basis of circumstantial evidence. The prosecution must
  not only prove and establish the incrimina_ting
D circumstance(s) against the accused beyond all
  reasonable doubt but the said circumstance(s) must give
  rise to only one conclusion to the exclusion of all others,
  namely, that it. is accused and nobody else who had
  committed the crime. [Paras 14 and 15] [817-G-H; 818-A-
E DJ
      Sharad Birdhichand Sarda vs. State of Maharashtra
  (t984) 4 SCC 116: 1985 (1) SCR 88; Tanviben Pankajkumar
  Oivetia vs. State of Gujarat (1997) 7 SCC 156: 1997 (1)
F Suppl. SCR 96; Vikram Singhvs. State of Punjab (2010) 3
  SCC 56: 2010 (2 ) SCR 22; Aftab Ahmad Anasari vs. State
  of Uttaranchal (2010) 2 SCC 583: 2010 (1) SCR 1027;
  Sanatan Naskar and anr. vs. State of West Bengal (2010) 8
  SCC 249; Mohd. Arif alias Ashfaq vs. State (NCT of Delhi)
G (2011) 13 sec 621: 2011 (1 o ) SCR 56 - relied on.
       4. The recovery of the .380? cablibre firearm was
  effected after more than two years from the date of the
  occurrence. The prosecution has not proved that during
  the intervening period, the weapon had not changed
H hands and the same was consistently possessed by the
     BRIJESH MAVI v. STATE OF NCT OF DELHI            807


accused-appellant. The report regarding the live and fired A
cartridges alongwith the bullets rec•overed from the place
of occurrence and also the bullets recovered from the
dead body in the course of post mortem, has been
exhibited as Ex.PW-21/A. The said report is of the date
before the recovery of the .380? calibre revolver. After the B
recovery of the said weapon was made, the weapon. itself
along with the cartridges (live and empty) as well as the
four bullets recovered from the place of occurrence was
sent to the CFSL Chandigarh and is covered by the
report of PW 20 (Ex.PW-20/B). However, the bullets c
recovered from the dead body at the time of post mortem
were not sent to the CFSL, Chandigarh. This is evident
from the evidence of PW 25. No explanation for such a
serious lapse on the part of the prosecution is
forthcoming. That apart, in Ex.PW~20/B it is recorded that 0
three out of the four bullets (recovered from the place of
occurrence) were fired from the recovered weapon. The
said bullets were not sent for serological examination to
establish that the three bullets fired from the recovered
weapon had entered and exited from the body of the
deceased. In such a situation a lingering doubt remains E
as to whether the prosecution in the present case has
succeeded in proving the charge against the accused-
appellant beyond all reasonable doubt. Furthermore, from
Ex.PW-20/B it is evident that one bullet (marked as B.2 by
the Expert) was not fired from the .380? calibre firearm F
recovered at the instance of the appellant. The first report
of the FSL, EX.PW21/A also indicates that one bullet of
.380? calibre did not have any striations of riffling marks.
The prosecution has remained silent on the aforesaid
aspect of the matter, though, from the two reports, the G
possibility of use of another fire arm of .380? calibres
cannot be ruled out. [Para 18] [819-F-H; 820-A-F]

     Abdulwahab Abdulmajid Baloch vs. State of Gujarat
_(2009) 11 SCC625: 2009 (4) SCR 956 - relied on.            H
    808       SUPREME COURT REPORTS            [2012) 6 S.C.R.


A        Musheer Khan Alias Badshah Khan and Anr. vs. State
    of MadhyaPradesh (2010) 2 SCC 748: 2010 (2) SCR119 -
    referred to.
       5. It would not be wholly safe to hold that the only
  conclusion that can follow from the proved
8
  circumstances of the case, is that the appellant-accused
  is responsible for the death of the deceased. The High
  Court has convicted the accused-appellant u/s. 302 as
  well as Section 460 IPC with the aid of Section 34. In a
  situation where one co-accused had died during the trial
C and the other co-accused had been acquitted by the High
  Court, the culpability of the present accused-appellant
  with the aid of Section 34 will be open to serious doubt.
  Such culpability will have to be determined on the basis
  of individual overt acts on the part .of the accused
D appellant for which there is no cogent and reliable
  material on record. [Para 20] [821-F-H; 822-A]
                        Case Law Reference:
          2010 (2) SCR 119       Referred to         Para 12
E
          1985 (1) SCR 88        Relied on           Para 15
          1997 (1) Suppl. SCR 96 Relied on           Para 15
          2010 (2) SCR 22        Relied on           Para 15
F         2010 (1) SCR 1027      Relied on           Para 15
          (201 o) 8 sec 249      Relied on           Para 15
          2011 (10) SCR 56       Relied on           Para 15
          2009 (4) SCR 956      . Relied on         .Para 19
G
        CRIMINAL APPELATE JURISDICTION: Criminal Appeal
    Nos. 824-825 of 2011.
       From the Judgment & Order dated 10.08.2009 of the High
  Court of Delhi at New Delhi in Crl. Appeal Nos. 662 and 646
H of 2008.
    BRIJESH MAVI v. STATE OF NCT OF DELHI                    809


     A. Sharan, S. Chandra Shekhar, Neeraj Walia, Sanchit           A
Guru, Manoj Kumar, Suraj Rathi for the Appellant.

     J.S. Attri, N.K. Srivastava, Priyanka Bharihoke, K.K. Tyagi,
Anil Katiyar, 8.V. Bairam Das for the Respondent.

     The Judgment of the Court was delivered by                     B

     RANJAN GOGOi, J. 1. These appeals are directed
against the common judgment and order dated 10.08.2009
passed by the High Court of Delhi whereby the conviction of
the appellant under Sections 302 and 460 read with Section          c
34 of the IPC as well as under Section 25 of the Arms Act has
been affirmed. The appellant has been sentenced to undergo
rigorous imprisonment for life for the offence under Section 302
read with Section 34 IPC whereas for the offence under Section
460 read with Section 34 IPC sentence of seven years rigorous       D
imprisonment has been imposed. Insofar as the offence under
the Arms Act is concerned, the accused-appellant has been
sentenced to undergo rigorous imprisonment for one year. All
the sentences have been directed to run concurrently.

     2. The short case of the prosecution is that on 06.06.2001,    E
H.C. Brij Pal (PW 11), who was posted in the PCR, received
an information at about 10.35 PM that firing is taking place at
Savitri Nagar near a sweet shop. Accordingly, PW 11 alongwith
other police personnel reached the said place and saw that a
crowd had gathered near a STD booth where blood was                 F
splattered and some arti~les were lying scattered in broken
condition. The STD booth belonged to one Omiyo Das Of Malik
Communications, who having been injured in the firing had
already been removed to the hospital.
                                                                    G
     The said information was passed on to the local police
station which was duly recorded in the Daily Diary of the Police
Station and marked to SI - Sudhir Sharma, PW 24, who alollg
with Constable- Bajrang Bahadur reached the place of
occurrence. On reaching the said place the police party could
                                                                    H
    810       SUPREME COURT REPORTS               [2012] 6 S.C.R.

A   come to know that the injured Omiyo Das had already been
    declared brought dead to the hospital.

           Further more, according to the prosecution, one Vicky
    Malik (PW 1) was an eye witness to the occurrence.
    Accordingly, his statement (Ex.PW-1/A) was recorded where
8
    he had stated that on 06.06.2001 at about 10.20 P.M. when
    he was sitting outside his STD booth and sweet shop at J-196,
    Savitri Nagar, he had noticed a white Maruti Car stopping on
    the other side of the road. In the statement recorded by the
C   police, PW 1 has stated that two men alighted from the vehicle
    and entered the STD booth whereafter they started firing at his
    maternal uncle, Omiyo Das. According to PW 1 he tried to
    intervene and in fact had brought a palta from his nearby sweet
    shop but his uncle told him to run away from the place and save
    his life. PW 1 had further stated that blood was oozing out from
D   the injuries suffered by his uncle and he ran towards his house
    No.868 shouting for help. According to PW 1, thereafter, the
    assailants fled away and he had along with his younger brother
    -Raj Kumar Malik -PW 3 and another maternal uncle - Ravi
    Kumar Dass - PW 4 had removed the injured to the hospital.
E   In his statement, PW 1 had categorically stated that one Satish
    Kumar who had killed his father and who had been acquitted
    about a month ago in the case arising from the said incident
    was one of the assailants whereas the other/second assailant
    was about 25-26 years of age and was a well built person. On
F   the basis of the aforesaid statement made by PW 1 - Vicky
    Malik, the FIR -Ex.PW-6/A was lodged and FIR Case No. 438/
    2006, Police Station Malviya Nagar (hereinafter referred to &s
    the present case) was registered. Three live cartridges cage
    of 0.380 bore; one empty cartridge of 0.380 bore and four lead
G   pieces of fired bullets were seized from the place of occurrence
    by PW 24 - Sudhir Sharma. The blood stained baniyan of PW
    3; blood stained earth etc. were also cSeized from the place of
    occurrence by the Investigating Team.

          3. The further case of the prosecution is that on the next
H
     BRIJESH MAVI v. STATE OF NCT OF DELHI                  811
              [RANJAN GOGOi, J.]
day, i.e. on 07.06.2001, PW 9 -Dr. T.Milo had conducted the        A
post mortem on the body of the deceased in the course of which
nine ante-mortem bullet injuries were noted and four bullets had
been extracted from the body which along with one cotton
underwear; one cotton baniyan, one long pant was handed over
to the Investigating Officer, PW 24- SI- Sudhir Sharma. The        B
cause of death was stated to be coma due to head injuries
caused by a firearm.

     4. According to the prosecution on 16.11.2001, the 10- PW
24- SI -Sudhir Sharma arrested accused Satish Kumar who            C
was already arrested by the Faridabad police in connection with
FIR No.339/2004 of Police Station GRP, Faridabad under
Section 25 of the Arms Act. The prosecution has alleged that
Satish Kumar made a djsclosure statement (Ex.PW-24/D) in
the instant case and had also disclosed about the involvement
of two other persons in the offence, i.e. one Med Singh and the    D
present appellant - Brijesh. On the basis of the said disclosure
statement made by accused Satish, a .30" pistol along with
3(three) .30" calibre live cartridges was recovered. Thereafter,
on 09.01.2002, PW 25 - SI - Sanjeev Sharma arrested Med
Singh who was already arrested on 05.01.2002 in a separate         E
case under the Arms Act. Three sealed parcels containing the
.30" calibre pistol with three 7.62mm/.30" live cartridges
recovered at the instance of accused Satish, the three .380"
live cartridges; one .380" cartridge cage, two bullets and two
defused bullets recovered from the place of occurrence and the     F
four bullets recovered from the dead body in the course of post-
mortem examination were all sent to the Forensic Science
Laboratory, Rohini, Delhi on 03.12.2001. Thereafter, the report
of one Shri KC Varshney, Senior Scientific Officer, FSL, Rohini,
Delhi (Ex.PW-21/A) was received which was to the effect that       G
the bullets marked as EB-1, EB-3 to EB-8 (seven in number)
had been discharged through a standard .380" calibre firearm.
On these facts, the two apprehended accused Satish and Med
Singh were sent for trial. As the two accused persons denied
                                                                   H
    812       SUPREME COURT REPORTS                [2012] 6 S.C.R.


A the charges levelled against them the trial proceeded. The third
  accused was neither identified nor traced out at that stage.

         5. While the trial of the case was in progress the present
    appellant, Brijesh, was arrested on 11.8.2003 in connection with
    another case, i.e., FIR No.575/2003 Police Station, Malviya
8
    Nagar. According to the prosecution, on interrogation, the
    accused appellant disclosed/admitted his involvement in the
    present case and made a statement on the basis of which a
    .380" calibre revolver was recovered from the second floor of
    an Apartment bearing No.F-4/64, Sector 16, Rohini, Delhi
C   alongwith 3 live .380" calibre cartridges. In respect of the said
    incident a separate FIR No.456 of 2003 under Section 25 of
    the Arms Act of Prashant Vihar Police Station was registered.
    It may be noticed, at this stage, that the aforesaid recovery of
    the weapon was in the presence of SI- Satish Kumar, ASI -
D   Ravinder and Head Constable - Rajiv Mohan who had been
    examined as PWs. 1, 2 and 3 in the case arising out of FIR
    No. 456/2003. It may also be noticed that Head Constable -
    Rajiv who was examined as PW 3 in connection with FIR
    No.456/2003 was again examined in the present case as PW
E   19. Both the cases, i.e. the present as well FIR No. 456/2003
    were clubbed together by order of the learned Additional
    District and Sessions Judge dated 10.03.2005 and charges
    under Sections 302 and 460 of the IPC read with Section 34
    were framed against the accused-appellant in the present case.
F   A separate charge under Section 25 of the Arms Act was also
    framed against the appellant in FIR Case N6. 456/2003.

       PW 1 - Vicky Malik who was already examined was
  recalled for further examination after chi;irges were framed
G against the present appellant. While the trial of the two cases
  was in progress, accused Satish died ahd the proceedings .
  stood abated against him. As many as 25 witnesses were
  examined by the prosecution in the present case and a large
  number of documents were also exhibited. Two witnesses were
  examined by the defence. DW-1 -Vijay Gupta claimed to be
H
    BRIJESH MAVI v. STATE OF NCT OF DELHI                   813
             [RANJAN GOGOi, J.]
owner of the Apartment No.F-4/64, Sector 16, Rohini. This           A
witness has stated that while he had occupied the ground floor
of the apartment the first floor was vacant for repairs. The
second floor was under the occupation of a tenant, one Rajiv
Chauhan. According to DW-1, no recovery was made· as
claimed by the police on 12.08.2003. DW-2- Rajiv Chauhan,           B
the tenant, had fully corroborated the above version of DW 1.
Both the accused persons - Med Singh and appellant Brijesh
were examined under Section 313 Cr.P.C. At the conclusion
of the trial both Med Singh and the present appellant Brijesh
were convicted for the offences for which they were charged.        c
Separate appeals were filed by both the accused before the
High Court. By the impugned judgment dated 10.08.2009 while
the accused Med Singh was acquitted, the present appellant
has been convicted of the charges framed in both the cases
and sentenced as aforesaid giving rise to the present appeal.
                                                                    D
    6. Before proceeding to notice and examine the
arguments advanced on behalf of the appellant, the bare facts
proved and established by the evidence on record which would
be required to be considered may be set out hereinbelow.
                                                                    E
     7. In the initial deposition tendered in court by PW 1 -
Vicky Malik, the witness had categorically stated that the
second assailant who was accompanying accused Satish was
not known to him. After the arrest of the present accused-
appellant on 11.08.2003 PW 1 was recalled and examined              F
once again on 21.10.2005. On this occasion PW 1 had clearly
denied that in his statement to the police that he had named
the accused-appellant-Brijesh or that he had identified the
present accused-appellant before the police. In fact, in his
further examination PW 1 had categorically stated that "the         G
accused-appellant Brijesh Mavi present in court was not there
on the date of incident" and further that "accused present in the
court Brijesh Mavi is not t~e person who had killed my uncle. I
have seen Brijesh Mavi first time". PW 1 was not declared
hostile.
                                                                    H
    814      SUPREME COURT REPORTS                [2012] 6 S.C.R.


A       8. PW 24 - Sudhir Kumar, the 10 of the case, in his
  deposition, as already noted, had deposed about the re...:overy
  of three live cartridges, one empty cartridge and 4 bullets ( all
  of 0.380 calibre) from the place of occurrence. He has also
  deposed about the receipt of four bullets which were extracted
B from the body of the deceased at the time of post-mortem.
  According to PW 24 the cartridges and bullets recovered from
  the spot were sealed with the initial SK whereas the bullets
  recovered from the dead body were sealed with the seal of
  Forensic Medicine AllMS Hospital. PW 24 has also deposed
c with regard to the arrest of accused Satish; the disclosure
  statement made by him and the recovery of one pistol of .30"
  calibre alongwith three live cartridges. In his cross-examination,
  he has stated that in the course of interrogation it was revealed
  that the .380 calibre revolver was with the accused Satish and
D the .30" calibre pistol was with accused Brijesh.

       9. From the evidence of PW 21 - Shri KC Varshney, Sr.
  Scientific Officer and his report Ex.PW-21/A it is evident that .
  along with the .30" calibre pistol and the three .30" calibre live
  cartridges, the .380 cartridges(3 in No.), one .380 cartidge
E cage and the four bullets recovered from the spot along with
  the four bullets recovered from the body of the deceased were
  sent for the examination and the report thereof is that 7 bullets
  marked as EB-1, EB-3 to EB-8 had been fired from a .380
  calibre fire arm.
F
        10. From the evidence of PW 25, Sl-Sanjiv Sharma, it also
  appears that after the recovery of the .380 calibre revolver from
  Apartment No. F-4/64, Sector 16, Rohini, Delhi, the said
  revolver and the empty and live .380 calibre cartridges and the
G four bullets recovered from the place of occurrence were sent
  to the CFSL, Chandigarh for examination and "matching"
  report, namely, whether the cartridges and bullets bore any
  relation to the fire arm recovered . The report of examination
  (Ex. PW -20/B) submitted by Dr. P. Siddambary Junior
  Scientific Officer (Ballastics), CFSL, Chandigarh (PW 20) is to
H
     BRIJESH MAVI v. STATE OF NCT OF DELHI                      815
              [RANJAN GOGOi, J.]
 the effect that the .380 revolver (bearing No. 25502) was in           A
. working condition and the. crime fired bullets marked B/1, B/3
  and B/4 had been fired through the said ,38" revolver bearing
  No.25502 and further that the said bullets could not have been
  fired through any other firearm. Insofar as the live cartridges are
  concerned, the report of PW 20 is silent where as in regard to        B
  the cartridge cage marked as EC.1 by the Ballistic Expert the
  opinion was inconclusive. From the above, it will be clear that
  the four bullets sent to the CFSL, Chanidgarh and examined
  by PW 20 were the bullets recovered from the place of
  occurrence. The bullets recovered from the dead body though           c
  sent to the FSL, Rohini and were examined by PW 21 were
  however not sent by the prosecution to the CFSL, Chandigarh
  and are not a part of the report submitted by PW 20 in his report
  (Ex. PW-20/B)

       11. Another significant fact that has to be noticed is that      D
 in the report of CFSL, Chandigarh Ex. PW- 20/B it is not
 mentioned that one of the bullets recovered from the place of
 occurrence and marked as B.2 by the Ballistic Expert had been
 fired from the revolver bearing No.25502 though according to
 both the reports, i.e. Ex.PW-21/A and Ex.PW-20/B the said              E
 bullet is also a .380 calibre bullet.

        12. Shri A. Sharan, learned senior counsel for the
· appellant, has argued that from the evidence of the sole eye
  witness, PW 1 Vicky Malik, it is clear and evident that he had F
 110t identified the accused-appellant Brijesh to be the pers.on
  accompanying the accused Satish to the STD booth where the
  firing took place. In fact, according to the learned counsel, PW
  1 has categorically stated in Court that the accused-appellant
  Brijesh was not present at the place of occurrence and that he. rG
  had seen the accused appellant for the first time in court. ·
  Learned counsel'therefore has contended that there is no direct
  evidence to link the accused-appellant with the offence for which
  he has been charged. In the absence of identification of the
  accused-appellant, the conviction, it is c'ontended, is wholly
  without any t)asis. Shri Sharan has further contended that the H
    816       SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A   recovery of the revolver from Apartment No.F-4/64, Sector 16,
    Rohini, Delhi, as claimed by the prosecution, has not been
    proved in any manner inasmuch as no independent witness has
    been examined to prove the same. Furthermore, DW 1 and DW
    2 had clearly deposed that no police party has come to the
B   apartment on 12.08.2003 and no recovery had taken place on
    the said date. Shri Sharan has also contended that the scrutiny
    of the evidence tendered by the defence witnesses would go
    to show that there is no basis for not accepting the same.

C        Continuing, Shri Sharan has argued that the bullets
    extracted from the body of the deceased, admittedly, had not
    been sent for examination to the ballastic expert to prove that
    the same were fired from revolver No. 25502 allegedly
    recovered from Apartment No.F-4/64, Sector 16, Rohini, Delhi.
    Therefore, according to learned counsel, even if the recovery
D of the revolver is to be assumed there is no proof that the same
    was fired to cause the injuries resulting in the death of the
    deceased. In sofar as the three bullets proved by Ex.PW -20/
    B to have been fired from the recovered weapon is concerned,
    Shri Sharan has argued that the same had not been sent for
E serological examination to prove the presence of human blood
    so as to establish that the said bullets had entered and exited
    the body of the deceased. It is also argued that the report of
    the CFSL Chandigarh (Ex.PW-20/B) read with the report of the
  . FSL, Rohini (Ex.PW-21/A) would go to show that the bullet
F ma·rked as Ex.82 in the report of CFSL, Chandigarh (Ex.PW-
    20/B) was not fired from the recovered weapon. Yet, according
    to the prosecution, the same was a .380 calibre bullet
    recovered from the place of occurrence which facts open up
    the possibility of the use of another .380 revoiver in the incident.
G No Evidence to the aforesaid effect is forthcoming. In these,
    circumstances Shri Sharan has argued that the conviction of
    the accused -appellant cannot be approved. In support, reliance
    has been placed on the judgment of this court in Abdulwahab
    Abdu/majid Baloch vs. State of Gujarat1 • Placing the said
H 1. (2009) 11 sec 625.
       BRIJESH MAVI v. STATE OF NCT OF DELHI                 817
                [RANJAN GOGOi, J.]
judgment before the court Shri Sharan has contended that in          A
the present case even if it is assumed that recovery of the
offending weapon has been proved by the prosecution the said
fact is only one adverse circumstance against the appellant.
The same by itself, would not give rise to a complete chain of
events and circumstances from which the only inference that can      B
be drawn is one of culpability of the accused. Shri Sharan has
also sought to draw the attention of the court to a recent
judgment in Musheer Khan Alias Badshah Khan and anr.
 Versus State of Madhya Pradesh 2 to contend that the recovery
of the alleged weapon, even if assumed, cannot reasonably            c
lead to a conclusion which would justify the conviction of the
accused-appellant.

      13. In reply Shri J.S. Attri, learned senior counsel for the
State has contended that the failure of PW 1 to identify the
accused-appellant as being present at the place of occurrence        D
would not be fatal to the prosecution case, inasmuch as in the
present case the prosecution has succeeded in proving,
beyond all reasonable doubt, that the weapon recovered at the
instance of the accused-appellant from Apartment No. F-4/64,
Sector 16, Rohini, Delhi was used to fire upon the deceased.         E
It is contended that the three bullets recovered from the spot
have been fired from the said weapon (Ex. PW 20/B). The said
circumstance, according to the learned State counsel, clinches
the issue beyond all reasonable doubt. It is argued that a firm
conclusion with regard to the culpability of the accused can be      F
reasonably drawn from the aforesaid circumstance proved in
the present case.

    14. The brief conspectus of facts set out above
demonstrates that there is no direct evidence to connect the         G
accused-appellant with the firing incident involving the
deceased. The only eye-witness examined by the prosecution,
namely, PW 1 has categorically deposed that the accused-
appellant Brijesh was not present at the place of the crime on
2.   (2010) 2 sec 748.
                                                                     H
     818        SUPREME COURT REPORTS           [2012] 6 S.C.R.

A the date of occurrence and, in fact, he had seen the accused-
  appellant for the first time in court. The second person
  accompanying the deceased accused Satish to the STD booth
  along with the firearm therefore remained unidentified. The
  prosecution, in the absence of any direct evidence, has sought
B to build up its case on the basis of circumstantial evidence.

       15. The principles of law governing proof of a criminal
  charge by circumstantial evidence need hardly any reiteration.
  From the several decisions of this court available on the issue
  the said principles can be summed up by stating that not only
C the prosecution must prove and establish the incriminating
  circumstance(s) against the accused beyond all reasonable
  doubt but the said circumstance(s) must give rise to only one
  conclusion to the exclusion of all others, namely, that it is
  accused and nobody else who had committed the crime. The
D above principle is deducible from the five propositions laid
  down by this Court in Shara<;/ Birdhichand Sarcia vs. State of
  Maharashtra 3 which principles have been consistenly followed
  in Tanviben Pankajkumar Divetia vs. State of Gujarat', Vikram
  Singh vs. State of Punjab 5, Aftab Ahmad Anasari vs. State of
E Uttarancha/6, Sanatan Naskar and anr. vs. State of West
  Benga/7 and Mohd. Arif alias ASshfaq vs. State (NCT of
  Delhi) 8 •

       16. The next question that has to engage the attention of
F the court is what are the circumstances that the prosecution has
  succeeded in proving in the present case and if so proved what
  is the conclusion that can be reached on the proved
  circumstances in the light of the principles of law indicated
  above.
G 3. (1984) 4 sec 116 (para 153).
    4.    (1997) 1 sec 156.
    5.    c201 O) 3 sec 56.
    6.    c2010) 2 sec 583.
    7.    c2010) 8 sec 249.
H   .a.   c2011) 13 sec 621 .
     BRIJESH MAVI v. STATE OF NCT OF DELHI                 819
              [RANJAN GOGOi, J.]
      17. The prosecution has asserted that on 11.08.2003 the     A
accused-appellant, after being arrested in connection with
another case admitted his involvement in the present case. On
the basis of statement made by him before SI - Satish Kumar
(PW 1); ASI - Ravinder (PW 2) and Constable - Rajiv (PW 3)
a .380 Calibre revolver was recovered from the second floor       B
of Apartment No. F-4/64, Rohini,Delhi. The evidence of PWs
1, 2 and 3 examined in connection with FIR Case No. 456/03
as well as the evidence of Head Constable Rajiv (PW 3) in FIR
Case No.456 who was examined as PW 19 in the present
case indicates without doubt or ambiguity the detailed facts in   c
which the recovery was effected. The cross-examination of
three witnesses has not revealed any fact which would go in
favour of the accused. The defence witnesses, DW 1 and DW
2, examined, in our considered view, have not succeeded in
demolishing the prosecution version inasmuch as DW 1 - Vijay      0
Gupta admittedly was being interrogated in the police station
on the date when the recovery was made. On the other hand,
OW 2 -Rajiv Chauhan has failed to prove that he was a tenant
under DW 1, in respect of the second floor of the Apartment in
question at the relevant time. In such circumstances the court    E
will have to proceed on the basis that the recovery, as claimed
by the prosecution, has been proved by the evidence on record.

      18. Our above finding would render the conviction of the
accused-appellant under Section 25 of the Arms Act wholly
justified. However, insofar as the charges under Section 302      F
and Section 460 read with Section 34 of the IPC is concerned,
there are certain other connected facts and circumstances
proved by the evidence on record which will have to be weighed
by us in order to determine the consequence(s) that can be
attributed to the accused from the recovery of the weapon in      G
question. The recovery was affected after more than two years.
The incident had occurred on 06.06.2001 and the recovery was
made on 12.08.2003. The prosecution has not proved that
during the intervening period the weapon had not changed
hands and the same was consistently possessed by the              H
    820       SUPREME COURT REPORTS               [2012] 6 S.C.R.


A accused app~llant Brijesh. The live and fired cartridges
  alongwith the bullets recovered from the place of occurrence
  and also the bullets recovered from the dead body in the course
  of post mortem were sent to the FSL Rohini. The report has
  been exhibited as Ex.PW-21/A. The said report is dated
B 28.02.2002, i.e. before the recovery of the .380 calibre revolver.
  After the recovery of the weapon said was made, the weapon
  itself along with the cartridges (live and empty) as well as the
  four bullets recovered from the place of occurrence was sent
  to the CFSL '.Chandigarh and is covered by the report of PW
c 20 dated 28.11.2003 (Ex.PW-20/B). However, surprisingly, the
  bullets rec6~ered from the dead body at the time of post
  mortem werei not sent to the CFSL, Chandigarh. This is evident
  from the e~idence of PW 25 - SI- Sanjiv Sharma. No
  explanation for what appears to us to be a serious lapse on
  the part of th~ prosecution is forthcoming. That apart, in Ex.PW-
0
  20/B it is rec¢rded that three out of the four bullets (recovered
  from the place of occurrence) were fired from the recovered
  weapon. The said bullets were not sent for serological
  examination fo establish that the three bullets fired from the
  recovered weapon had entered and exited from the body of the
E deceased. In ~uch a situation a lingering doubt remains as to
  whether the prosecution in the present case has succeeded in
  proving the charge against the accused-appellant beyond all
  reasonable doubt. Furthermore, from Ex.PW-20/B it is evident
  that one bullet (marked as B.2 by the Expert) was not fired from
F the .380 calibre firearm recovered at the instance of the
  appellant. The first report of the FSL, Rohini, Delhi - EX.PW21/
  A also indicates that one bullet of .380 calibre did not have any
  striations of riffling marks. The prosecution has remained silent
  on the aforesaid aspect of the matter, though, from the two
G reports, the possibility of use of another fire arm of .380
  calibres cannot be ruled out.

      19. In the above context the decision of this court in
  Abdulwahab Abdulmajid Baloch vs. State of Gujarat (supra)
H would be a particular significance. Though the observations
    BRIJESH MAVI v. STATE OF NCT OF DELHI                  821
             [RANJAN GOGOi, J.]
contained in Paragraphs 37 and 38 of the judgment have to          A
be understood to have been rendered in the context of the facts
of the case we find that the said observations would squarely
apply to the present case. Consequently the aforesaid two
paragraphs may be usefully extracted hereinbelow :
                                                                   B
    "37. Be that as it may, we feel that only because the
    recovery of a weapon was made and the expert opined
    that the bullet found in the body of the deceased was fired
    from one of the weapons seized, by itself cannot be the
    sole premise on which a judgment of conviction under           C
    Section 302 could be recorded. There was no direct
    evidence. The accused, as noticed hereinbefore, was
    charged not only under Section 302 read with Section 34
    of the Penal Code but also under Section 302 read with
    Section 120-B thereof. The murder of the deceased was
    said to have been committed by all the accused persons         D
    upon hatching a conspiracy. This charge has not been
    proved.

    38. The learned trial Judge himself opined that the
    recovery having been made after nine months, the weapon        E
    might have changed in many hands. In absence of any
    other evidence, connecting the accused with commission
    of crime of murder of the deceased, in our opinion, it is
    not possible to hold that the appellant on the basis of such
    slander evidence could have been found guilty for              F
    commission of offence punishable under Section 302 of
    the Penal Code."

     20. Though the above discussions would lead us to the
conclusion that the prosecution, in the present case, has
succeeded in proving a highly incriminating circumstance           G
against the accused -appellant, yet, we do not consider that it
would be wholly safe to hold that the only conclusion that can
follow from the aforesaid proved circumstance is that the
accused Brijesh is responsible for the death of the deceased
                                                                   H
    822       SUPREME COURT REPORTS              [2012) 6 S.C.R.

A that had occurred on 06.06.2001. We have also noticed that
  the High Court has convict~d the accused-appellant under
  Section 302 as well as Section 460 IPC with the aid of Section
  34. In a situation where co-accused Satish had died during the
  trial and the other co-accused Med Singh had been acquitted
B by the High Court, the culpability of the present accused-
  appellant with the aid of Section 34 will be open to serious
  doubt. Such culpability will have to be determined on the basis
  of individual overt acts on the part of the accused appellant for
  which we do not find any cogent and reliable material on record.
c      21. Consequently, we hold that while the conviction of
  accused-appellant under Section 25 of the Arms Act and the
  sentence imposed is justified, the accused-appellant is entitled
  to the benefit of our doubts with regard to the offences under
  Section 302 and Section 460 read with Section 34 of the IPC.
D We, therefore, set aside the judgment of the High Court insofar
  as the offence under Section 302 and Section 460 read with
  Section 34 of the IPC is concerned. The conviction of the
  accused-appellant under Section 25 of the Arms Act and the
  sentence imposed is upheld. If the appellant is presently in
E custody and he has undergone the sentence imposed under
  Section 25 of the Arms Act he be released forthwith unless
  wanted in any other case.

          The appeals are disposed of in the aforesaid terms.
F   K.K.T.                                Appeals partly allowed.