RAVINDER SINGH @ KAKU v. STATE OF PUNJAB

inference in this regard was a mere dubious conclusion that was drawn in absence of any cogent or concrete evidence. The High Court itself based its inferences on mere probability. Moreover, the prosecution also failed to establish by evidence the supposed objective of these murders and what was it that was sought to be achieved by such an act. The court observed that the act of A2 was inspired by the desire to “exclusively possess” A1. However, it seems improbable that A2 would murder the minor children of PW5 and A1 to increase or protect his intimacy to A1 rather than eliminate the husband of A1 himself. Hence, the inference drawn by the High Court from the information of call details presented before them suffers from infirmity and cannot be upheld, especially in light of the fact that there is admittedly no direct evidence to establish such alleged intimacy and that the entire conviction of A2 is based on mere circumstantial evidence. A conviction which is based upon a probability of infatuation of A2, which in turn is based on an alleged intimacy between him and A1, which has admittedly not been established by any direct evidence cannot be upheld. [Para 13][600-C-H]

1.4 The High Court erred in holding that the second limb of the prosecution’s Last Seen Theory stands duly established against A2 and A3 through the evidence of PW6 and PW7. The High Court erred in not appreciating the numerous contradictions and inconsistencies that the evidence of PW6 and PW7 entail. These contradictions and inconsistencies assume capital important in light of the fact that the entire conviction of A2 is based merely on circumstantial evidence, and they also render the evidence non-conclusive to establish the guilt of A2. [Para 15][601-C-D, E-F]

1.5 In a case where the conviction is solely based on circumstantial evidence, such inconsistencies in the testimonies of the important witnesses cannot be ignored to uphold the conviction of A2, especially in light of the fact that the High Court has already erred in extrapolating the facts to infer a dubious conclusion regarding the existence of a motive that is rooted in conjectures and probabilities. [Para 17][602-E] A B C D E F G H 592 SUPREME COURT REPORTS [2022] 4 S.C.R.

1.6 With respect to the extra judicial confessions, suffice it to say that the attempt of the respondent to rely on that is untenable since the High Court has taken note of the inconsistences in the evidence of PW13 and rightly rejected his evidence “in toto”. The judgement of the High Court to the extent that it rejects the testimony of PW13 and finds the theory of extra judicial confession of A2 and A3 to be unnatural is upheld. The last piece of evidence against A2 remains the alleged recovery of the school bag at the instance of the disclosure statement given by A2. However, similar to the other evidence against A2, this also suffers from the same inconsistencies and incoherence that makes it difficult for the such evidence to support the conviction of A2. The contradictions and inconsistencies in the testimonies of PW6, PW5, PW9 and PW12 make the story of the prosecution weak and non-conclusive to hold and establish the guilt of A2, especially in light of the fact that there is virtually no direct evidence to link A2 to the commission of the offence. [Paras 18, 19][602-F-H; 603-G]

1.7 The electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. Oral evidence in the place of such certificate, as is the case in the instant matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. [Para 21][605-C-D]