Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 337/2008
VIJAY SHANKAR ….Appellant
Versus
STATE OF HARYANA …Respondent
J U D G M E N T
R. BANUMATHI, J .
In this appeal the appellant questions the correctness
of his conviction under Section 302 IPC and Section 449 IPC and
the sentence of life imprisonment awarded to him as confirmed
by the High Court of Punjab and Haryana at Chandigarh in
Criminal Appeal No.87-DB/1999 dated 05.04.2006.
2. Case of prosecution is that deceased-Satish Kumar,
brother of Sukhbir Singh (PW-10), was working as a Sub-
Inspector in Delhi Police. Sukhbir Singh and deceased-Satish
Kumar owned agricultural lands and also a poultry farm in
village Dujana. To celebrate the festival of Holi, on 16.03.1995,
Signature Not Verified
Digitally signed by
Shashi Sareen
Date: 2015.08.25
04:37:47 IST
Reason:
deceased-Satish Kumar along with his family went to the village.
His wife and children had gone to village Dujana and Satish
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Kumar stayed in poultry farm. Both the brothers celebrated the
Holi by playing fireworks and they continued talking up to 2.00
a.m., Sukhbir Singh returned back to his house in the village
leaving Satish Kumar in the poultry farm. The following morning
i.e. on 17.03.1995, Kishore (PW-19) saw Satish Kumar lying
injured on the floor and he informed the same to PW-10.
Sukhbir Singh (PW-10) immediately rushed to the farm and took
his brother in a maruti car to the Medical College and Hospital,
Rohtak for treatment and the incident was communicated to the
police. When the police party from Jhajjar Police Station went to
the hospital to record the statement of Satish Kumar, Dr. K.S.
Bhatia (PW-6) opined that Satish Kumar was not in a position to
give a statement. Police then recorded the statement of Sukhbir
Singh (PW-10) who stated that the appellant-accused resident of
village Dujana came to their farm the previous night at about
10.00/11.00 p.m. under the influence of liquor and abused his
brother Satish Kumar raising objection for not allowing him to
park his cycle and not allowing him to take liquor at their farm
and that accused-Vijay Shankar threatened them saying that he
would not let them celebrate Holi. Based on the statement of
Sukhbir Singh, FIR No.60/1995 of Jhajjar Police Station, was
registered under Section 307 IPC. Dog squad was brought and
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the sniffer dog followed the trail to the ‘ baithak’ of the appellant.
Vidya Rattan (PW-11) resident of village Dujana informed the
police that during the intervening night of
16.03.1995/17.03.1995, when he had gone in search of his lost
buffalo, at about 2.30 a.m., he had seen the accused coming out
of the room of Satish Kumar. On 19.03.1995, the appellant is
said to have made an extra-judicial confession to Budh Ram
(PW-12), a Member of Gram Panchayat of village Dujana. Injured
Satish Kumar succumbed to injuries on 20.03.1995. After his
death, FIR was altered to Section 302 IPC. Dr. Subhash Juneja
(PW-13) conducted post-mortem on the body of Satish Kumar
and opined that the death was due to multiple injuries with its
complications which were sufficient in the ordinary course of
nature to cause death. The accused was arrested on 19.03.1995
and based on his statement, clothes of the accused and knife
were recovered and were sent to forensic science laboratory.
After due investigation, chargesheet was filed against the
appellant under Sections 302 and 449 IPC.
3. To substantiate the charges, the prosecution has
examined twenty witnesses and from the side of defence one
witness was examined. Upon consideration of evidence, the
Sessions Court held that the prosecution has established the
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guilt of the accused beyond reasonable doubt and convicted the
appellant under Section 302 IPC and sentenced him to undergo
imprisonment for life and imposed fine of Rs.2,000/- with default
clause. The appellant was also convicted under Section 449 IPC
and was sentenced to undergo rigorous imprisonment for ten
years and imposed a fine of Rs.1,000/- with default clause.
Aggrieved by the verdict of conviction, the appellant filed appeal
before the High Court which by the impugned judgment
confirmed the conviction and sentence of imprisonment,
correctness of which is challenged in this appeal.
4. Learned counsel for the appellant contended that there
is no direct evidence involving the appellant in respect of the
commission of the offence punishable under Section 302 IPC and
Section 449 IPC. It was submitted that the accused was
convicted even when the circumstances have not been proved by
the prosecution beyond reasonable doubt. It was contended that
the courts below erred in placing reliance upon evidence of Vidya
Rattan (PW-11), who is said to have gone towards village Budha
in search of a lost buffalo alone in the mid-night which is quite
unbelievable and the courts below committed serious error in
accepting PW-11’s evidence so far as the circumstance of last
seen together. Learned counsel for the appellant urged that the
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recovery of clothes and bloodstained knife does not in any way
connect the accused with the crime.
5. Per contra, learned counsel for the respondent
contended that there was sufficient light on the spot and the
witness has properly recognized the accused and the evidence of
PW-11 is reliable and trustworthy and rightly accepted by the
courts below. It was submitted that the circumstantial evidence
relied upon by the prosecution, namely, motive, last seen theory,
extra-judicial confession and recovery have been proved by
cogent evidence and the courts below rightly convicted the
appellant-accused and the conviction does not warrant any
interference.
6. We have carefully considered the rival contentions and
perused the evidence and the impugned judgment.
7. There is no eye-witness to the occurrence and the
entire case is based upon circumstantial evidence. The normal
principle is that in a case based on circumstantial evidence is
that the circumstances from which an inference of guilt is sought
to be drawn must be cogently and firmly established; that these
circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused; that the circumstances
taken cumulatively should form a chain so complete that there is
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no escape from the conclusion that within all human probability
the crime was committed by the accused and they should be
incapable of explanation of any hypothesis other than that of the
guilt of the accused and inconsistent with their innocence vide
Sharad Birdhichand Sarda vs. State of Maharashtra , (1984) 4 SCC
116. The same view was reiterated in Bablu Alias Mubarik
Hussain vs. State of Rajasthan, (2007) 2 SCC Crl. 590.
8. Prosecution mainly based its case on the
circumstances:- (i) motive; (ii) last seen theory; (iii) extra-judicial
confession; (iv) trail of dog-squad leading to Baithak of the
accused and (v) recovery of bloodstained clothes and knife. In the
light of the above principles, let us examine whether the
prosecution has proved the circumstances by convincing
evidence and whether those circumstances unerringly point
towards the guilt of the accused.
9. Motive:- So far as the motive is concerned, Sukhbir
Singh (PW-10), brother of the deceased stated that the
appellant-Vijay Shankar used to park his cycle on their farm and
his brother Satish Kumar had rebuked him about fifteen days
prior to the occurrence for parking his cycle. PW-10 further
stated that on the intervening night of 16.03.1995/17.03.1995,
the appellant came to the farm in an inebriated condition and
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stated that since Satish and Sukhbir are not allowing him to
park his cycle and are not allowing him to take liquor in their
farm, he will not let them to celebrate Holi. The appellant is the
neighbour of PW-10 and the deceased-Satish Kumar. Allegation
of previous enmity between the appellant and the deceased
family has not been proved. Excepting PW-10, no other
independent witness was examined to prove that Satish Kumar
had rebuked the appellant and serious doubts arise as to the
motive suggested and the alleged previous enmity.
10. As per the version of PW-10, on 16.03.1995, his
brother Satish Kumar came to the farm for celebrating the
festival of Holi and his children went to the house in village
Dujana while Satish Kumar stayed back at the farm and that
they celebrated Holi festival by cracking fireworks and continued
talking up to wee hours of 17.03.1995 and thereafter he left for
his home while Satish Kumar continued to be in the poultry
farm. There were three servants in the poultry farm; two were
sleeping in the adjoining room where Satish Kumar was sleeping
and the third servant was sleeping in the truck parked at some
distance from the farm. None of the farm servants were
examined and this again raises doubts about the evidence of
PW-10 and the motive suggested.
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11. In each and every case, it is not incumbent on the
prosecution to prove the motive for the crime. Often, motive is
indicated to heighten the probability of the offence that the
accused was impelled by that motive to commit the offence.
Proof of motive only adds to the weight and value of evidence
adduced by the prosecution. If the prosecution is able to prove its
case on motive, it will be a corroborative piece of evidence. But
even if the prosecution has not been able to prove its case on
motive that will not be a ground to throw the prosecution case
nor does it corrode the credibility of prosecution case. Absence
of proof of motive only demands careful scrutiny of evidence
adduced by the prosecution. In the present case, absence of
convincing evidence as to motive makes the court to be
circumspect in the matter of assessment of evidence and this
aspect was not kept in view by the High Court and the trial court.
12. Last Seen Theory :- The trial court as well as the High
Court based the conviction of the appellant mainly on the last
seen theory relying on the evidence of Vidya Rattan (PW-11)
who allegedly saw the appellant on the intervening night of
16.03.1995/17.03.1995 coming out of the room of Satish
Kumar. In his evidence, PW-11 stated that on the intervening
night of 16.03.1995/17.03.1995 his buffalo was missing from his
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farmhouse and therefore he went towards village Budha in
search of his buffalo. PW-11 stated that it was moonlit night and
at about 2.30 a.m., when he reached Dujana bus stop, he saw
the appellant-Vijay Shankar coming out of the room of Satish
Kumar and he could identify the accused in the bulb light which
was in the courtyard of the room. PW-11 further stated that
thereafter he went to village Dieghal in search of his buffalo.
PW-11 further stated that when he came to Dujana at 3.00 p.m.,
he saw the crowd of people at the bus stand and he came to
know that on the previous night someone has murdered Satish
Kumar by causing knife injuries and after 10/15 minutes police
came to the spot and PW-11 informed the police what he saw the
previous night. Prosecution strongly relied upon the evidence of
PW-11 to bring home the guilt that the accused was last seen
with the deceased.
13. Evidence of PW-11 is assailed contending that PW-11
is not a reliable witness and that he being the owner of sixty
acres of land and also owning a petrol pump, it is quite
unbelievable that he went in the midnight from one village to
another in search of buffalo. Learned counsel for the appellant
placed reliance on the Modis’ Medical Jurisprudence and
th
Toxicology 19 Edn. Para (2) at page No.61 contending that
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according to Tidy, “ the best known person cannot be recognized in
the clearest moonlight beyond a distance of seventeen yards…. ”
and it is quite improbable that PW-11 could see the
accused-appellant so clearly from such a long distance.
14. As the prosecution case mainly revolves around the
evidence of PW-11, it is necessary to carefully consider whether
the High Court and the trial court have properly appreciated the
evidence of PW-11 and whether the courts below were right in
accepting the prosecution case based on evidence of PW-11.
PW-11 is a resident of village Dieghal. If we look at the economic
position of PW-11, admittedly he owns sixty acres of land and
also a petrol pump. It is quite improbable to believe that he was
going alone from village Dujana to Dieghal which is at a distance
of ten kilometers in the midnight in search of his buffalo. Trial
court and the High Court erred in holding that the evidence of
PW-11 cannot be brushed away as even a rich man may take the
theft of petty items seriously and may take every effort to search
the same. It is quite unnatural that in the midnight PW-11 went
alone without informing anyone nor taking anyone with him.
Further as pointed out by Sukhbir Singh (PW-10) the distance of
the room where Satish Kumar was sleeping and the road
leading to village Dujana is three killas i.e. three acres on the
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northern side and the southern and western side of the room,
their fields are situated and as per the version of Vidya Rattan
(PW-11) he had identified the appellant from a distance of twenty
five feet in the moonlight and also in the light of a electric bulb
fixed in the courtyard of the room. It is quite improbable that in
the night from such a long distance PW-11 was able to identify
the accused.
15. If the prosecution establishes the last seen theory, an
inference can be drawn against the accused which may lead to
the finding of his guilt. Considering the evidence of PW-11 and
the improbabilities, evidence of PW-11 neither inspires
confidence nor does it lead to a conclusion that the appellant was
last seen with the deceased. As noticed earlier, PW-10 and
Satish Kumar had three servants; two were sleeping in the
adjoining room where deceased-Satish Kumar was sleeping and
the third one was sleeping in the truck parked at some distance
from the farm. From the post-mortem certificate Ex.PS, it is seen
that the deceased has sustained number of injuries on the neck,
chest and upper arm. From the post-mortem certificate it is also
seen that deceased-Satish Kumar was well-built and nourished.
Probably, deceased might have resisted and raised alarm, it is
quite improbable that the farm servants never heard the noise
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and that none of the servants came to the rescue of
deceased-Satish Kumar which again raises serious doubts about
the prosecution case.
16. Extra-judicial confession:- Yet another circumstance relied
upon by the prosecution is the extra-judicial confession
allegedly made by the appellant to Budh Ram (PW-12). PW-12
has stated that he was a member of Gram Panchayat Dujana and
on 19.03.1995, Vijay Shankar-appellant came to his residence
where Har Sarup Numberdar was also present. PW-12 stated
that Vijay Shankar gave an extra-judicial confession of inflicting
injuries to deceased-Satish Kumar and requested PW-12 to save
him. When PW-12 was only a member of Gram Panchayat and
not a person of influence with the police, it is doubtful that the
appellant-Vijay Shankar had approached him making
extra-judicial confession and requested him to save him. At this
juncture, suggestion put to PW-10 during his cross-examination
is relevant to be noted. In the cross-examination of PW-10, it
was suggested to him that he has let out his shop to Budh Ram
Gujjar, brother of Badlu, on the condition that Budh Ram Gujjar
will depose in the case and therefore PW-12 cannot be said to be
an independent witness.
17. Principles in respect of evidentiary value and reliability
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of extra-judicial confession have been summarized by this Court
in Sahadevan & Anr . vs. State of Tamil Nadu, (2012) 6 SCC 403,
which reads as under:-
“i. The extra-judicial confession is a weak evidence by itself.
It has to be examined by the court with greater care and
caution;
ii. It should be made voluntarily and should be truthful;
iii. It should inspire confidence;
iv. An extra-judicial confession attains greater credibility
and evidentiary value, if it is supported by a chain of
cogent circumstances and is further corroborated by
other prosecution evidence;
v. For an extra-judicial confession to be the basis of
conviction, it should not suffer from any material
discrepancies and inherent improbabilities;
vi. Such statement essentially has to be proved like any
other fact and in accordance with law.”
Extra-judicial confession is a weak piece of evidence and the
courts are to view it with greater care and caution. For an
extra-judicial confession to form the basis of conviction, it should
not suffer from any material discrepancies and inherent
improbabilities. In the case on hand, extra-judicial confession
allegedly made to PW-12 does not inspire confidence and cannot
form the basis for the conviction.
18. Recovery:- According to the prosecution, after the
alleged confession, Budh Ram (PW-12) and Har Sarup produced
the appellant before the investigating officer and Dalip Singh
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(PW-20) arrested the appellant on 19.03.1995. His confession
led to the recovery of bloodstained clothes from the box lying in
the house of the appellant and also knife from the field.
Bloodstained clothes and also the knife were sent to the Forensic
Science Laboratory and human blood was detected in the
bloodstained clothes of the appellant. So far as the bloodstained
clothes and knife, the material was disintegrated. As discussed
earlier, extra-judicial confession made to Budh Ram (PW-12) is
highly doubtful and in these circumstances, much weight cannot
be attached to the alleged recovery of bloodstained clothes and
the knife.
19. Considering the totality of the facts and evidence, in
our view, the circumstances relied upon by the prosecution are
not established by convincing evidence and they do not form a
complete chain pointing to the guilt of the appellant. Ordinarily,
in exercise of its jurisdiction under Article 136 of the
Constitution of India, the Supreme Court does not enter into
re-appreciation of evidence. When ordinarily the Supreme Court
would refrain from re-examining the evidence, the Supreme
Court will certainly interfere when evidence adduced by the
prosecution falls short of reliability and unsafe to base
conviction. The conviction recorded by the courts below is not
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supported by credible evidence and the prosecution has failed to
establish the guilt of the accused beyond reasonable doubt and
benefit of doubt is to be given to the appellant.
20. In the result, the judgment of the High Court is set
aside and this appeal is allowed. The appellant is acquitted of the
charges. The appellant is on bail and his bail bonds shall stand
discharged.
……………………………J.
(V. GOPALA GOWDA)
……………………………J.
(R. BANUMATHI)
New Delhi;
August 4, 2015
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ITEM No. 1A Court No. 2 SECTION
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 337 of 2008
VIJAY SHANKAR Appellant(s)
VERSUS
STATE OF HARYANA Respondent(s)
Date : 04.08.2015 This appeal was called on for judgment today.
For Appellant(s) Mr. J.B.Mudgal, Adv.
Mr. Jatinder Singh, Adv.
Mr. R.C.Kaushik, Adv.
For Respondent(s) Mr. Arun Kumar, AAG,
Mr. Sanjay Kumar Visen, adv.
Hon'ble Mrs. Justice R.B.Banumathi pronounced
Judgment of the Bench comprising Hon'ble Mr. Justice
V.Gopala Gowda and Hon'ble Mrs. Justice R.Banumathi.
he judgment of the High Court is set aside
T
and the appeal is allowed
in terms of the signed
The appellant is acquitted of
reportable judgment.
the charges. The appellant is on bail and his bail
bonds shall stand discharged.
(Shashi Sareen)
(Veena Khera)
Court Master
(Signed reportable judgment is placed on the file)
Court Master