KAMAL versus STATE (NCT OF DELHI)
[2023] 11 S.C.R. 49, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2023] 11 S.C.R. 49 : 2023 INSC 678 
49
CASE DETAILS
KAMAL
v.
STATE (NCT OF DELHI)
(Criminal Appeal No. 465 of 2017)
AUGUST 07, 2023
[B. R. GAVAI AND PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration : In a prosecution case where father was found 
dead by the complainant-brother of the deceased, and suspicion arose on the 
son of the deceased on account of the property dispute between the father and 
the son, and the son ﬂ ed from the scene of incident and was apprehended two 
days later, whether the courts below were justiﬁ ed in convicting the son u/s. 
302/34 IPC and sentencing him to rigorous imprisonment for life.
Penal Code, 1860 – s. 302 r/w 34 – Murder – Circumstantial 
evidence and last seen theory – Conviction on basis of, by the courts 
below – Correctness:
Held : Failure of the prosecution to prove the case as they need to 
prove the incriminating circumstances beyond reasonable doubt – Suspicion 
howsoever strong, cannot take place of a proof beyond reasonable doubt – 
Sanctity of test identiﬁ cation parade before the court doubtful since the accused 
were already shown to the witnesses in the Police Station – Evidence with 
regard to last seen theory totally unreliable – Evidence regarding the Call 
Detail Records-CDRs does not inspire any conﬁ dence – Thus, the judgment 
and order passed by the High Court as also the trial court quashed and set aside 
– Appellants acquitted of all charges – Evidence. [Paras 13, 19, 20 and 21]
Evidence –
Circumstantial evidence – Conviction on basis of – 
Conditions to be fulﬁ lled:
Held : Circumstances from which the conclusion of guilt is to be drawn 
should be fully established – Facts so established should be consistent only
50
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
with the hypothesis of the guilt of the accused, they should not be explainable 
on any other hypothesis except that the accused is guilty – Circumstances 
should be of a conclusive nature and tendency and they should exclude 
every possible hypothesis except the one sought to be proved – There must 
be a chain of evidence so complete so as not to leave any reasonable ground 
for the conclusion consistent with the innocence of the accused. [Para 18]
Evidence – Case of murder – Conviction on basis of strong 
suspicion – Correctness of: 
Held :  Suspicion howsoever strong, cannot take place of a proof 
beyond reasonable doubt. [Para 19]
Evidence – Last seen theory – Reliance upon:
Held : Evidence with regard to last seen theory totally unreliable. 
[Para 20]
Evidence – Call Detail Records – Reliance upon:
Held : Evidence regarding Call Detail Records does not inspire any 
conﬁ dence. [Para 20]
Test identiﬁ cation parade – Evidentiary value, when accused 
already shown to the witnesses in the Police Station:
Held : Sanctity of test identiﬁ cation parade before the court is 
doubtful. [Para 13]
LIST OF CITATIONS AND OTHER REFERENCES
Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 
116 : [1985] 1 SCR 88 – relied on.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 465 
of 2017.
From the Judgment and Order dated 05.08.2014 of the High Court of Delhi 
at New
Delhi in CRLA No. 1136 of 2013.
With
Criminal Appeal No. 2295 of 2023.
51
KAMAL v. STATE (NCT OF DELHI)
Appearances:
Mrs. K. Sarada Devi, Ms. Kheyali Singh, R K Kapoor, Ms. Shweta 
Kapoor, Ms. Sarabjeet Kaur, Rajat Kapoor, Advs. for the Appellant.
Ms. Sonia Mathur, Sr. Adv., Shreekant Neelappa Terdal, Ms. Pratiksha 
Mishra, Ms. Ronika Tater, Ms. Rupakshi Soni, Divik Mathur, Nikhil Chandra 
Jaiswal, Simarjeet Singh Salooja, A.K.Panda, Ms. Sunita Sharma, Ms. Nidhi 
Khanna, Navanjay Mahapatra, Noor Rampal, Dr. N. Visakamurthy, Advs. 
for the Respondent.
JUDGMENT/ORDER OF THE SUPREME COURT
JUDGMENT
B. R. GAVAI, J. 
1. Leave granted in appeal arising out of SLP(Crl.) No. 6213 of 2021.
2. The appeals challenge the judgment and order dated 5th August 2014 
passed by the High Court of Delhi at New Delhi in Criminal Appeal Nos. 1242, 
936 and 1136 of 2013, thereby aﬃ  rming the judgment and order dated 17th 
May 2013 passed by the Additional Sessions Judge-II (North-West), Rohini 
Courts, Delhi (hereinafter referred to as the ‘trial court’), vide which the trial 
court convicted the original three accused for the oﬀ ence punishable under 
Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter 
referred to as ‘IPC’) and sentenced them to undergo imprisonment for life. 
3. The prosecution story, shorn of details, is as under:
3.1 On 10th September 2009 at around 04.15 pm, complainant-Surat 
Singh, brother of the deceased Hoshiyar Singh, came to the house of the 
deceased and found him lying dead on the cot. In the meantime, his elder
brother Jai Singh (PW-20) also reached the spot. The deceased was taken to 
the hospital where he was declared dead.
3.2 The First Information Report (for short, ‘FIR’) came to be lodged 
expressing suspicion on Prem Singh, son of the deceased, since he had a 
property dispute with the deceased. It is the prosecution case that on earlier 
occasions, the accused had given beatings to the deceased and had also 
threatened to kill him.
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SUPREME COURT REPORTS 
[2023] 11 S.C.R.
3.3 It is the prosecution case that Prem Singh ﬂ ed away from the 
scene of incident and was apprehended on 12th September 2009. During 
interrogation, he revealed the names of his associates Kamal Kishore 
and Manoj, the present appellants. Thereafter, the appellants were also 
apprehended. At the instance of accused Kamal Kishore, one rusted iron rod 
was recovered. At the instance of accused Manoj, a sweater was recovered 
which was used to strangulate the deceased.
3.4 Upon completion of investigation, charge-sheet was ﬁ led against 
all the three accused in the Court of Judicial Magistrate, First class. Since the 
case was exclusively triable by the Sessions Judge, the case was committed 
to the Sessions Judge. The trial court, vide judgment and order dated 17th 
May 2013, convicted all the three accused under Section 302 read with 
Section 34 of the IPC and sentenced them to suﬀ er rigorous imprisonment 
for life and imposed a ﬁ ne of Rs.50,000/- each.
3.5 All the three accused preferred appeals before the High Court. By 
the impugned judgment and order dated 5th August 2014, the High Court 
dismissed all their appeals. Hence, the present appeals.
4. We have heard Mr. R.K. Kapoor and Ms. K. Sarada Devi, learned 
counsel appearing on behalf of the appellants, and Ms. Sonia Mathur and Mr. 
A.K. Panda, learned Senior Counsel appearing on behalf of the respondent.
5. Mr. Kapoor submitted that the present case is a case of
circumstantial 
evidence. It is submitted that unless the prosecution establishes an unbroken 
link of circumstances, conviction based upon circumstantial evidence is 
not permissible.
6. Mr. Kapoor submitted that the prosecution mainly relies on the 
testimony of Jai Singh (PW-20) and Naresh Kumar (PW-21).
7. Ms. Mathur and Mr. Panda, on the contrary, submitted that the 
High Court and the trial court have concurrently, on proper appreciation of 
evidence, convicted the appellants. It is submitted that no interference is 
warranted in the present appeals.
8. Insofar as Naresh Kumar (PW-21) is concerned, he states that on 
the date of incident, at around 03.15 pm, he saw that the accused Prem Singh 
was present in his vehicle Toyota Qualis in front of the room of deceased 
Hoshiyar Singh, and was pressing the accelerator of his vehicle continuously 
and making the sound of the vehicle loud. Upon being asked about the reason
53
KAMAL v. STATE (NCT OF DELHI)
[B. R. GAVAI, J.]
for the same, accused Prem Singh replied that the vehicle was not starting. 
PW-21 further states that meanwhile, he saw two boys coming out of the 
room of deceased Hoshiyar Singh. When PW-21 asked the accused Prem 
Singh about those boys, he replied that they were the tenants. PW-21 states 
that, thereafter, he went towards his shop at Gopal Nagar.
9. Further, in the examination-in-chief, PW-21 states that on 16th 
September 2009, he was called by the police at the house of the deceased 
Hoshiyar Singh and he went there and saw that two persons, namely Manoj 
and Kamal Kishore, were in the custody of the police. PW-21 further 
states that the police had told him that they had committed the murder of 
Hoshiyar Singh. This witness has been declared hostile, and in the cross-
examination by the Additional Public Prosecutor (APP), he has identiﬁ ed 
these two persons to be the persons who were seen by him coming out of 
the house of Hoshiyar Singh. However, further in the cross-examination 
by the APP, he has again admitted that he has seen the accused persons in 
the Police Station on 12th September 2009 for the ﬁ rst time. He further 
admitted that the police oﬃ  cials told him that there was a person namely 
Kamal Kishore and also told him about the accused Manoj. Another 
witness for the last seen theory is Jai Singh (PW-20), younger brother 
of deceased Hoshiyar Singh. He has deposed on similar lines as that of 
Naresh
Kumar (PW-21).
10. The very presence of Jai Singh (PW-20) has been sought to 
be demolished in the cross-examination. Though, in the examination-
in-chief, he states that he and Surat Singh had carried the deceased to 
the hospital, he states that the clothes of Surat Singh were soiled with 
blood but his clothes were not soiled because it was Surat Singh who 
was actually lifting Hoshiyar Singh and he was only helping him with 
his hands.
11. Though Jai Singh (PW-20) states that he had informed the police 
about the description of the accused, i.e., he told the police that one boy was 
fair and the other was having a wheatish complexion, there is substantial 
improvement inasmuch as his statement recorded under Section 161 of 
the Criminal Procedure Code, 1973 does not contain such description. 
He further states that his house is 40 feet away from the room where the 
incident had taken place. He has further admitted that there is one house 
situated between his house and the house of Hoshiyar Singh. As such, the
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SUPREME COURT REPORTS 
[2023] 11 S.C.R.
very presence of PW-20 appears to be doubtful.
12. It is pertinent to note that the learned Judges of the High Court have 
themselves noted that Naresh Kumar (PW-21), in his cross-examination, 
has stated that he was shown Kamal Kishore and Manoj on 12th September 
2009 in the Police Station where Kavita and Jai Singh were also present 
and therefore, the refusal by them for Test Identiﬁ cation Parade (TIP) was 
justiﬁ ed. The High Court goes on to observe that the witnesses having 
identiﬁ ed the appellants in the dock is suﬃ  cient to hold that they have been 
duly identiﬁ ed by the witnesses and prove the guilt of the accused.
13. We fail to appreciate the correctness of this ﬁ nding. If the accused 
are already shown to the witnesses in the Police Station, then the sanctity 
of TIP before the court is doubtful.
14. The other circumstance on which the prosecution relies are the Call 
Detail Records (CDRs). The courts below have relied on the circumstance 
that when the incident had occurred, the identiﬁ cation of the CDRs of the 
mobile used by the accused Manoj and Kamal Kishore would show that 
their location was at the place of incident.
15. Firstly, it is to be noted that one of the mobile numbers 9278453468 
alleged to have been used by accused Manoj is not in the name of Manoj but 
one Ashok Kumar, son of Shri Krishan Kumar, resident of Subhash Nagar, 
Kanpur. No evidence is placed on record to show as to how the said SIM
came to be in possession of the accused Manoj. Apart from that, if at the 
time of the incident both of them were at the same place and according to 
the prosecution inside the house of the deceased Hoshiyar Singh, and they 
were talking to each other on telephone, this itself creates a doubt on the 
prosecution version.
16. Undisputedly, the present case is a case which rests on 
circumstantial evidence. The law with regard to conviction based upon 
circumstantial evidence is very well crystalised in the case of Sharad 
Birdhichand Sarda v. State of Maharashtra1. 
17. We may gainfully refer to the following observations of this Court 
in the case of Sharad Birdhichand Sarda (supra): 
“151. It is well settled that the prosecution must stand or fall on its 
own legs and it cannot derive any strength from the weakness of the 
1 
(1984) 4 SCC 116
55
KAMAL v. STATE (NCT OF DELHI)
[B. R. GAVAI, J.]
defence. This is trite law and no decision has taken a contrary view. 
What some cases have held is only this: where various links in a chain 
are in themselves complete, then a false plea or a false defence may 
be called into aid only to lend assurance to the court. In other words, 
before using the additional link it must be proved that all the links in 
the chain are complete and do not suﬀ er from any inﬁ rmity. It is not 
the law that where there is any inﬁ rmity or lacuna in the prosecution 
case, the same could be cured or supplied by a false defence or a plea 
which is not accepted by a court.
…….
153. A close analysis of this decision would show that the following 
conditions must be fulﬁ lled before a case against an accused can be 
said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be 
drawn should be fully established.
It may be noted here that this Court indicated that the circumstances 
concerned “must or should” and not “may be” established. There is not only 
a grammatical but a legal distinction between “may be proved” and “must 
be or should be proved” as was held by this Court in Shivaji Sahabrao 
Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 
: 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 
807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused must be and not 
merely may be guilty before a
court can convict and the mental distance 
between ‘may be’ and ‘must be’ is long and divides vague conjectures 
from sure conclusions.”
(2) the facts so established should be consistent only with the 
hypothesis of the guilt of the accused, that is to say, they should not be 
explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to 
be proved, and
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SUPREME COURT REPORTS 
[2023] 11 S.C.R.
(5) there must be a chain of evidence so complete as not to leave any 
reasonable ground for the conclusion consistent with the innocence 
of the accused and must show that in all human probability the act 
must have been done by the accused.
154. These ﬁ ve golden principles, if we may say so, constitute the 
panchsheel of the proof of a case based on circumstantial evidence.”
18. It can thus be seen that this Court has held that the circumstances 
from which the conclusion of guilt is to be drawn should be fully 
established. It has been held that the circumstances concerned “must or 
should” and not “may be” established. It has been held that there is not only 
a grammatical but a legal distinction between “may be proved” and “must 
be or should be proved”. It has been held that the facts so established should 
be consistent only with the hypothesis of the guilt of the accused, that is 
to say, they should not be explainable on any other hypothesis except that 
the accused is guilty. It has been held that the circumstances should be of 
a conclusive nature and tendency and they should exclude every possible 
hypothesis except the one sought to be proved, and that there must be a 
chain of evidence so complete so as not to leave any reasonable ground for 
the conclusion consistent with the innocence of the accused and must show 
that in all human probability the act must have been done by the accused.
19. It is a settled principle
of law that however strong a suspicion 
may be, it cannot take place of a proof beyond reasonable doubt. In the 
light of these guiding principles, we will have to consider the present case.
20. We ﬁ nd that the prosecution has utterly failed to prove the case 
as they need to prove the incriminating circumstances beyond reasonable 
doubt. The evidence with regard to last seen theory is totally unreliable. 
The evidence regarding the CDRs also is one which does not inspire any 
conﬁ dence. As such, we ﬁ nd that the appeals deserve to be allowed.
21. In the result, the appeals are allowed. The judgment and order 
dated 5th August 2014 passed by the High Court of Delhi at New Delhi 
in Criminal Appeal Nos. 1242, 936 and 1136 of 2013, and the judgment 
and order dated 17th May 2013 passed by the trial court are quashed and 
set aside.

57
KAMAL v. STATE (NCT OF DELHI)
[B. R. GAVAI, J.]
22. The appellants are acquitted of all the charges levelled against 
them. They are directed to be set at liberty if not required in any other 
case. Bail bonds of the appellants shall stand discharged.
23. Pending application(s), if any, shall stand disposed of.
Headnotes prepared by:

Appeals allowed.
Nidhi Jain