Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
C RIMINAL A PPEAL N O ( S ). 14451446 OF 2012
Suresh and Anr. …Appellant (s)
Versus
State of Haryana …Respondent (s)
With
C RIMINAL A PPEAL N O . 1458 OF 2012
Sobhat Singh …Appellant (s)
Versus
Dharampal and Ors. …Respondent (s)
J U D G M E N T
AMANA
N. V. R , J.
1. These appeals by special leave petitions, are preferred by two
accused persons, namely Sobhat Singh and Suresh, against the
conviction imposed by the High Court and the consequential
acquittal of other persons, namely Dharampal and Umed Singh,
sons of Beg Raj and Dharambir, passed by the High Court of
Punjab and Haryana in Crl. Appeal No. 157DB of 2002, 273DB
of 2002, 920SB of 2002, 751DBA of 2002 and Crl. Revision No.
Signature Not Verified
907 of 2004. Facts being connected and issues being similar, we
Digitally signed by
VISHAL ANAND
Date: 2018.08.21
16:03:27 IST
Reason:
would like to deal with these appeals by a common judgment.
1
2. Few facts which are necessary for the disposal of these cases are
that a panchayat election was held on 15.12.1994, in the village
Sundawas, where there were two major contestants namely
Maha Singh and Dharampal son of Beg Raj. Deceased Chander
Bhan was an election agent for the losing candidate Maha Singh.
It is necessary to note that there was a quarrel including gun
shots being fired at around 11 A.M, on the day of election
between both factions, as a result of which supporters of
Dharampal son of Beg Raj (winning candidate) sustained
injuries. In this context, a FIR No. 733 of 1994 was registered
against Maha Singh (losing candidate) and one Darya under
Sections 307 read with 34 of Indian Penal Code, 1860
[ hereinafter referred as ‘ IPC ’ for brevity ] and Sections 25 and 27
of the Arms Act, 1959.
th th
Later, during the intervening night of 15 and 16 December of
3.
1994, Dharampal alias Dharam son of Nanak Ram [accused A
1 ], Sobhat Singh [accused A2 ], both being supporters of losing
candidate Maha Singh, came to the house of Chander Bhan, on
2
the pretext that since Maha Singh had lost the election and was
involved in a criminal case, they should falsely implicate
Dharampal son of Beg Raj also, by registering a counter case
against him. On this pretext, they accompanied Chander Bhan to
Hisar. On their way, one Suresh [accused A3 ] is supposed to
have joined them.
4. One Umed Singh son of Mahi Ram [ PW14 ], while waiting near
Borstal Jail, Hisar for a conveyance at 4:00 A.M on 16.12.1994
(morning) had seen A1, A2, Chander Bhan and A3 going in an
auto rickshaw. It is the prosecution’s version that all of them
went to an abandoned house in Adarsh Nagar at Hisar, wherein
Chander Bhan (deceased) was shot by the aforesaid accused.
5. Thereafter, A1 and A2 took injured Chander Bhan to the City
Civil Hospital, Hisar for treatment. It is alleged that in the
meanwhile A3 tried to hide the gun. It is born from the record
that Chander Bhan succumbed to his injuries 20 minutes after
he was admitted to the aforesaid Hospital on 16.12.1994.
3
Thereafter, accused A2 went to the Police Station, Sadar Hisar,
6.
for registration of a complaint against Umed Singh son of Beg
Raj, Dharam Pal son of Beg Raj [Sarpanch] and Dharambir for
the death of Chander Bhan. Accordingly, FIR was filed before the
police being FIR No. 736/ 1994, dated 16.12.1994, based on the
accused A2.
7. As per the narration of accused A2, on 16.12.1994, at about
4:30 A.M, the Chander Bhan (deceased), A2 and A1 were going
to Chandigarh on foot. On reaching a few kilometers ahead of the
village Sundawas, they spotted a jeep coming towards them. One
of the occupants Umed Singh son of Beg Raj, raised lalkara that
enemies were going and they should be taught a lesson for
helping Maha Singh in the elections. Dharampal and Umed
Singh sons of Beg Raj and Dharambir alighted from the jeep and
Dharam Pal son of Beg Raj, who was armed with a pistol, shot
Chander Bhan in his stomach and ran away. It is alleged that A
1 and A2, who escaped the firing, rushed Chander Bhan to the
City Civil Hospital, Hisar, where he succumbed to his injuries.
4
The case was investigated by I.O. Bhim Singh [ ], who
8. PW15
reached the spot of the alleged occurrence as per the narration of
accused A2. However, he could not trace any incriminating
material as alleged. Being suspicious of the version of accused A
2, the investigating police, started to investigate from different
angles.
On 25.12.1994, all the accusedappellants contacted one Zile
9.
Singh [ PW16 ] and confessed their guilt before him. To put the
gist of their extrajudicial confessions, it may be noted that the
accused stated to Zile Singh ( PW16 ) that having the motive to
file a counter case against Dharampal son of Beg Raj, the
Sarpanch, the accusedappellants along with Chander Bhan
reached an abandoned house in Adarsh Nagar, Hisar and Suresh
[ A3 ] fired a shot at Chander Bhan in the house at Adarsh Nagar.
Thereupon accused A3 fled away with the gun. Later, accused
A1 and A2 took Chander Bhan to the hospital and registered a
false complaint against Dharampal son of Beg Raj, Dharambir
and Umed Singh son of Beg Raj under Section 302, IPC.
5
10. It may be noted that Zile Singh produced all the accused before
the Police and thereafter the accused identified the place of
occurrence. By virtue of such disclosure statements made by the
individual accused persons, the police are alleged to have
recovered a licensed gun, cartridges, pellets, some concrete
material from the khurli found in the house at Adarsh Nagar,
Hisar. Based on the aforesaid complaint, Bhim Singh, S.I to the
P.S Sadar, Hisar, registered a case under Sections 25, 30, 54 and
59 of Arms Act, being FIR No. 743 [Ex. PZ/1], against Lachman
Singh [A4] and A3.
After the completion of the investigation, chargesheets came to
11.
be filed in the Court against the accused A1, A2 and A3 for
offences under Section 302 read with Section 34 of IPC and
accordingly, were summoned by the Addl. Sessions Judge on
10.10.1995 [ in Criminal Case No. 7610802 of 1995 (Sessions
Case No. 60 of 1995 in Sessions Trial No. 22 of 1995) ]. In a
connected case of FIR No. 743, the accused A3 and Lachman (A
4) were being tried for usage of fire arms, which was consolidated
6
with the main case, by order dated 19.09.1999 and both the
cases were tried together. During the trial, the Prosecution
examined 17 witnesses and the Defense examined 4 witnesses in
the Sessions Case No. 60 of 1995 It may be noted here that the
.
accused examined themselves as defense witnesses under
Section 315 of Code of Criminal Procedure, 1973 [ herein after
referred as ‘ CrPC ’ for brevity ].
The Trial Court in Sessions Case No. 60 of 1995 in Sessions Trial
12.
No. 22 of 1995, by order dated 12.02.2002, found the accused
guilty of committing the crime and convicted them for the
offences punishable as under
| ACCUSED | CHARGES | CONVICTION |
|---|---|---|
| Sobhat<br>Singh [A<br>2] | S. 302/34<br>IPC | RI for Life and fine of Rs<br>5,000. In default, to suffer<br>RI for 6 months |
| Suresh<br>[A3] | [1] S.<br>302/34 IPC<br>[2] S. 25<br>Arms Act | [1] RI for Life and fine of Rs<br>5,000. In default, to suffer<br>RI for 6 months.<br>[2] RI for 1 year and fine of<br>Rs 500, In default, to<br>undergo RI for 15 days.<br>Sentence to run<br>concurrently. |
| Lachman<br>[A4] | S. 30, Arms<br>Act | Fine of Rs 1,000. In default,<br>to suffer RI for 15 days. |
7
It may be noted, that during the trial, accused A1 died and the
trial against him got abated. The Trial Court, held the accused
guilty, and reasoned as under
a) The motive is proved, wherein the crime was staged so as
to falsely implicate Sarpanch Dharampal belonging to
opposite political faction.
b) That the accused portrayed a fake story and filed a FIR
against Dharampal, Umed Singh sons of Beg Raj and
Dharambir alleging that they have murdered Chander
Bhan. However, no evidence was found against
Dharampal, Umed and Dharambir at the place of
occurrence as described by accused A2.
c) There was no motive for Dharampal, Umed Singh and
Dharambir to murder Chander Bhan. Rather, a motive
exists on the part of the accused, since their candidate
had lost the election.
d) Inference was drawn that the probability of causing
injuries to Chander Bhan by A1 and A2 was relatively
higher.
e) That PW14, Umed Singh son of Mahi Ram, had seen the
accused with the deceased early in the morning when
they had a small conversation and that the Umed Singh
(PW14) had noticed that Suresh was holding a single
barrel gun.
f) That the version of accused A2 was not tenable due to
many contradicting circumstances.
g) That the accused had confessed their crime before Zile
Singh ( PW16 ), who later produced the accused before
the Police on 25.12.1994.
h) That the disclosure statements made by the accused
appellants herein, before the police, led to the recovery of
the licensed gun and pellets.
8
i) The FSL Report concludes that the pellets which were
recovered from the Khurli as per such disclosure were
similar to those found in the dead body.
j) The Postmortem report confirms the death to have been
caused due to hemorrhage and shock due to gunshot
injuries.
Aggrieved by the fact that the complainant was himself shown as
13.
an accused by the investigating authority, A2 filed a complaint
before the Magistrate against the Dharambir, Umed Singh son of
Beg Raj and Dharam Pal son of Beg Raj, on the facts as revealed
by accused A2 in FIR No. 736 dated 16.12.1994.
Accordingly, the Magistrate separately took cognizance and
14.
committed the case to the Sessions Court against Dharambir,
Umed Singh son of Beg Raj and Dharam Pal son of Beg Raj, on
25.01.1997 [ in Complaint Case No. 951 of 1995 (Sessions case
No. 62 of 1997 ] under Sections 302 read with 34 of IPC. Further
by order dated 05.03.1997, the Sessions Judge ordered the trial
of all the cases to take place simultaneously. All the accused
pleaded not guilty and claimed to be tried.
9
15. In Sessions case No. 62 of 1997, the Sessions Court by order,
dated 12.02.2002, acquitted Dharampal son of Beg Raj, Umed
Singh son of Beg Raj and Dharambir on the following reasons
a) That prosecution failed to establish motive on the part of
accusedDharampal son of Beg Raj, as he has already won
the election.
b) That accused persons came at midnight 15.12.1994
16.12.1994, called the deceased and told him that they
had to shoot somebody so as to falsely implicate Sarpanch
Dharampal son of Beg Raj in a case as corroborated by the
evidence of DW1 (Kamla).
c) That the story of the prosecution that the deceased was
shot on the road at a distance of 11/2 K.M. from village by
the accused Dharampal son of Beg Raj is uncorroborated in
the absence of any incriminating evidence in the said crime
scene, as supported by the evidence of DW5 Bhim Singh.
d) That DW2 Umed Singh corroborated that on 16.12.1994 at
about 4:30 A.M. while waiting for conveyance to go to his
village he had seen Sobhat Singh, Dharampal son of Nanak
Ram and the Suresh who was carrying a single barrel gun
along with the deceased in an autorickshaw.
e) The complainant had taken deceased to the Hospital at 6:
30 AM. In crossexamination Sobhat Singh ( PW4/A2 ) and
Dharampal ( PW5/A1 ) could not explain when the
deceased received injuries or why did they not take the
deceased to the nearby hospital.
f) That complainants further failed to explain in their cross
examination how the threewheeler appeared merely within
fiveminutes to take them to the Hospital at Hisar.
g) The evidence of PW5Dharampal son of Nanak Ram, is
contradictory to PW4 (Shobat Singh [ A2 ]) as to how they
took the deceased to the hospital.
10
h) That the complainants failed to state the number of vehicle,
driver of the vehicle in their crossexamination. They have
also failed to explain why they did not immediately report
the matter in the village and to the family members of the
deceased when they were just at a distance of 11/2 km
from the village.
i) That extrajudicial confession was made before DW3 (Zile
Singh).
j) That the gun recovered in the instant case was the gun
belonging to complainant Suresh [ A3 ] and FSL report
available on record proves that the pellets found in the body
of the deceased were similar to those fired from that gun.
k)
Therefore, the prosecution failed to prove a case beyond
reasonable doubt against the accused. So, all the accused
were acquitted of the charge against them.
16. Aggrieved by the judgments of the Trial Court, in Session Case
No. 60, accused A2, A3 and A4 filed Criminal Appeal No. 273
DB, 157DB, 920SB respectively before the High Court. On the
other hand, accused A2 filed a Criminal Appeal No. 751DBA of
2002, against the acquittal, of Dharampal son of Beg Raj, Umed
Singh son of Beg Raj and Dharambir, passed by the Sessions
Court in Sessions Case No. 62 of 1997. It may be noted that the
High Court clubbed all the appeals and dismissed them through
a common impugned judgment dated 03.01.2012. The High
Court had further directed accused A2 and A3 to pay a sum of
11
Rs. One Lac as damages to Smt. Kamla and her two children.
17. The High Court while upholding the conviction emphasized
following grounds
a) That it was admitted by accused A2 and A1 that they had
called for Chander Bhan at his house, in the presence of his
wife, on 16.12.1994.
b) That the evidence produced by the I.O indicates that the
accused took Chander Bhan to a room in Adarsh Nagar,
Hisar, where he was shot by accused A3 using his single
barrel gun.
c) The accusedappellants had confessed to their crime, which
led to the recovery of certain incriminating articles.
d) Sufficient evidence is on record like recovery of pellets, gun
and some concrete material etc. to prove that Chander Bhan
was shot inside that Kotha (Room) by the accused and not by
the other gang, as alleged.
e) There was a crystalclear motive on the part of the accused A
2 to commit such crime so as to implicate Dharampal son of
Beg Raj (Sarpanch) in a false case.
f)
Apart from the testimony of wifeKamla and the recovery of
the incriminating materials, the evidence of PW 14 (Umed
Singh), who deposed that he had seen the accused along with
Chander Bhan (deceased) earlier that morning with Suresh
was also a major circumstance going against the accused.
g) Lastly, the extra judicial confession made before Zile Singh
(PW16), is found to be true and voluntary and since PW16
is an independent witness, his evidence cannot be doubted.
h) The chain of circumstances are complete so as to bring
home the guilt of the accused.
i) Further, the gun used was a licensed gun which
belonged to Lachman, father of A3, who had allowed the
gun to be taken from his custody and misused by his
son. Hence, the conviction under Arms Act was also
justified.
12
18. Aggrieved by the judgment and order of conviction passed by the
High Court, accused A2 and A3 have preferred Criminal Appeal
No (s). 14451446 of 2012 (arising out of SLP (Crl.) No (s). 2868
2869 of 2012) in Sessions Case No. 60 of 1995 in Sessions Trial
No. 22 of 1995. Further accused A2 preferred a Criminal Appeal,
being Criminal Appeal No. 1458 of 2012 (arising from SLP (Crl.)
No. 2926 of 2012), against the acquittal of Dharampal son of Beg
Raj, Umed Singh son of Beg Raj and Dharambir in Sessions Case
No. 62 of 1997 in Sessions Trial No. 97 of 1997.
19. Learned senior counsel, Ms. Anjana Prakash, appearing on behalf
of the appellant accused has mainly contended as under
a) That the case involves no direct evidence and the chain of
circumstantial evidence is not complete; therefore, the
conviction of the appellants on the basis of unfounded
evidence should not be sustained.
b) That PW13 (wife of the deceased), when materially confronted,
denied the statement that she had stated to the police that
accused A1 and appellant accused A2 had told the deceased
that they had to fire a shot at somebody to implicate Sarpanch
Dharampal son of Beg Raj.
c) That PW14 presence at spot is doubtful. He made out an
illogical story that while waiting for conveyance to go to his
village at 4:00 AM, he had seen the appellant and Dharampal
with the deceased. But in Cross examination he was not able
to explain why he was waiting for the conveyance 3½ hours
13
early, especially when the first bus for his village leaves at
7:30 AM.
d) That PW14 has also admitted that he did not tell PW13 that
he had seen accused persons carrying gun along with the
deceased in the said auto rickshaw. PW14 inter alia has also
admitted that he and PW16 had injured the deceased at an
earlier point of time and denied the fact that brother of PW16
had fired upon the deceased.
e) That alleged extrajudicial confession made on 25.12.94 before
PW16 is not admissible on the ground that it was made under
suspicious circumstances. PW16 interalia , also admitted that
Maha Singh had defeated him previously in the Sarpanch
election; therefore, election rivalry is evident against accused
persons.
f) That if the accused persons were arrested on 18.12.94, then
the question of alleged extrajudicial confession made on
25.12.94 before PW16 casts doubt in the prosecution story.
g) That the FIR was lodged by the appellants and it is also an
admitted fact that it was the appellantaccused who had
brought the injured at the hospital for treatment.
h) That the gun recovered in the instant case is the licensed gun
of the father of the accused Suresh and there is no forensic
evidence available on record to prove that pellets found in the
body of the deceased was fired from that gun.
i) That the motive plays an important role in a case of
circumstantial evidence. In the present case there is no strong
motive that can be inferred on the part of accused person on
the ground of election rivalry.
j) That the role of investigating officer is doubtful in this case as
there are contradictions in respect of the date of arrest of the
accused persons. As the IO stated that he had found evidence
against appellants within two days of occurrence but denied
arresting them then. However, from the materials on record it
is evident that date of arrest of accused persons is on
14
18.12.1994. That it can be said that IO is exonerating the
actual accused and falsely implicating the appellants.
On the Other hand, learned counsel appearing on behalf of the
20.
State, Dr. Monika Gusain, while supporting the judgment of the
lower courts, has drawn our attention to the fact that the
accused, were hard core criminals, who would not stop short of
killing their own for political rivalry. She has also contended that
the recovery at the place in Adarsh Nagar bolsters the case of the
prosecution. She argues that if for a moment, the version of
accused A1 is taken into consideration, then there was no
question of taking the deceased to a Hospital 24 KM away in
Hisar, while there was a Hospital near the vicinity of the alleged
crime scene.
Having heard the Learned counsel for either side and given
21.
our anxious consideration to the facts and circumstances of the
case on hand, at the outset, it would be apt to observe certain
statements of prosecution witnesses, on whose evidence the
courts below have excessively placed reliance. For this purpose,
it would be necessary for us to deal with the two cases
separately. First, we would like to take up the Criminal Appeal
15
N O . 14451446 OF 2012 and thereafter consider Criminal Appeal
No. 1458 of 2012.
22. PW1(Dr. Bishnoi), SMO General Hospital, Tohana, deposed that
he was the person, who conducted the postmortem of the
deceased. Regarding the nature of the injury, he states that
Multiple rounded and oval shaped wounds of the
size of 1/3 cm into 1/3 cm present on the front of
trunk and pelvic area along with upper part of the
front of both thighs numbering about (50). Majority
of these wounds were present on the left side of
front part of the body. These were covered with
clotted blood with inverted margins with
lacerations. No blackening or tattooing were
present. … All structures in the pelvic and in the
lower abdomen including small and large intestine
and vessels were injured. Abdominal cavity was full
of red colored blood.
Further he has deposed that the death of Chander Bhan
(deceased) resulted because of hemorrhage, and shock due to
gunshot injuries. All injuries were opined to have been ante
mortem in nature and sufficient in the usual course to cause
death.
23. PW2 (Dr. Surinder Singh), Medical Officer, who treated the
Chander Bhan (deceased) at the Hospital. He avers that from the
perusal of the bedhead ticket, the Chander Bhan (deceased) was
16
brought to the Hospital at Hisar, by accused A1 and A2. It is
important to note that the deceased was brought in a semi
conscious state to the Hospital.
PW 13 Smt. Kamla, widow of deceased Chander Bhan states
24.
that on 15.12.1994, an election was held in the village of
Sundawas, wherein the deceased Chander Bhan, was an election
agent for Maha Singh. She deposed that persons in support of
Maha Singh, supposedly fired gun shots and the supporters of
Dharampal son of Beg Raj, allegedly had received injuries in the
th
aforesaid firing. In the intervening night of 1516 , A1 and A2,
came to meet the deceased Chander Bhan. She states that her
husband had enquired with the aforesaid accused, who had
revealed to him that they had to go to Hisar and had to shoot
somebody so as to involve Dharampal son of Beg Raj in a false
case. In that pretext she states that all the three accused (A1, A
2 and A3) and Chander Bhan (deceased) left for Hisar.
25. It may be of some significance to note that, during her cross
examination, she states as under
I had told in my statement to the police that
accused Dharma and Sobhat has told my husband
17
that somebody was to be fired at. I had told the
police in my statement that accused Dharma and
Sobhat had told my husband that they would fire
shots at their own brother in order to involve
Dharampal Sarpanch.
Appellantaccused has extensively placed reliance on the
aforesaid statement, to point that the statement of PW13 was
ridden with improvements, which questions the reliability and
credibility of her statements. The consequence of the same, will
be discussed at a later stage.
26. PW14 (Umed Singh son of Mahi Ram), states that he belongs to
the village of Sundawas. On 15.12.1994, after casting his vote,
he returned to Hisar in the evening for purchase of seed and
fertilizers. Following morning, at about 4 AM, while he was
standing near the Borstal Jail, Hisar, waiting for a bus to go back
to his village Sundawas. Around that time, one auto rickshaw
came from the side of Hisar City and stopped near him. The
occupants of the autorickshaw were accused A1, A2, A3 and
Chander Bhan. He states that accused A3 was holding a single
barrel gun in his hand. When the occupants enquired about him,
he replied to them that he was waiting for the conveyance to go
18
back to his village and the occupants of the auto supposedly told
him that they were going for some urgent work.
27. PW15 Bhim Singh, the Investigating Officer has deposed that
accused A2 had registered a complaint against Umed Singh,
Dharampal sons of Beg Raj and Dharambir on the grounds that
they have shot the deceased Chander Bhan on account of prior
rivalry. He further deposed that in furtherance of the enquiry, on
reaching the alleged scene of the crime, he did not find any tyre
marks of the jeep or any incriminating marks whatsoever. It may
be noted that his evidence is a crucial link to portray that the
case of false prosecution against the winning candidate
Dharampal son of Beg Raj was given full effect by misleading the
police authority as to the scene of the incident. He further
recorded the statement of PW13Smt. Kamla and found out that
on 16.12.1994 the accused A2 and A1 came to the house of the
deceased at around midnight and took Chander Bhan on the
pretext that since Maha Singh had lost the election and was
involved in a criminal case, hence they should falsely implicate
19
Sarpanch Dharampal son of Beg Raj, by registering a counter
case against him.
28. PW15 further deposed that PW14 informed that while Umed
Singh ( PW14 ) was waiting at Borstal Jail, Hisar for conveyance
at 4:00 A.M on 16.12.1994, he had seen that accused A1, A2,
deceased Chander Bhan and A3 were going for some urgent
work and that he had also noticed A3 holding a single barrel
gun.
29. Furthermore, PW15 had also deposed that later, on 25.12.1994,
PW16, Zile Singh had produced the accused before him where
he recorded the statement of Zile Singh with regard to the extra
judicial confession made to him by the accused. It may be
relevant to note PW15 in the examinationinchief states that
the Zile Singh (PW16), left the Police Station and did not wait till
the completion of the interrogation. Whereas, in the cross
examination he contradicts himself that Zile Singh (PW16) was
present during the interrogation of the appellantaccused. PW15
also deposed that by virtue of the disclosure statements made by
the individual accused persons, the recovery of the gun,
20
cartridges, pellets and some concrete material from room and the
khurli of the Adarsh Nagar House were made.
30. PW16 (Zile Singh), deposes that on 25.12.1994, when he had
come to the village Sundawas, accused A1, A2 and A3 had
confessed before him by detailing the of the
modus operandi
crime and subsequent coverup of the incident. Thereafter, he
states that he handed over the accused to the police for
interrogation and the interrogation was conducted in his
presence. At the appropriate stage, we will examine the relevance
of the aforesaid confession made before Zile Singh (PW16) and
its impact on the prosecution’s case.
As regards to the evidence of other witnesses who supported the
31.
prosecution case, PW17, Mewa Singh, is the panch witness for
the seizures made by the police from crime scene. He deposed
that on 25.12.1994, he went to the police station along with one
Sant Lal on getting the information that the real culprits in
Chander Bhan's murder case have been arrested. He further
deposed that I.O. Bhim Singh interrogated the accused in his
21
presence. That during such interrogation, accused A1 and A3
pointed out that they will be able to show the scene of the crime
as well as the hidden gun. He had further deposed that he and
Sant Lal were witnesses to the subsequent recoveries made by
the investigating officer.
32. After having appreciated the evidence of certain crucial witnesses,
we would like to clarify at the outset that this is a case of
circumstantial evidence. Jurisprudentially the meaning of
circumstantial evidence has never been settled. Although we may
not require a detailed analysis of the jurisprudential dichotomy
which exists as to what amounts to ‘circumstantial evidence’, we
may indicate certain precedents and legal literature have given a
definite shape for the aforesaid term. In Thomas Starkie, A
Practical treatise on the law of evidence, and digest of
th
proofs, in civil and criminal proceedings (vol. I, 4 Eds.,
, it is said that
1876)
"In criminal cases, proof that the party accused
was influenced by a strong motive of interest to
commit the offence proved to have been committed,
although exceedingly weak and inconclusive in
itself, and although it be a circumstance which
22
ought never to operate in proof of the corpus
delicti, yet when that has once been established
aliunde, it is a circumstance to be considered in
conjunction with others which plainly tend to
implicate the accused".
Sir Fitz James Stephen, while writing his
Introduction to Indian
Evidence Act , 1872, writes as under
Facts relevant to the issue are facts from the
existence of which inferences as to the existence of
the facts in issue may be drawn.
A fact is relevant to another fact when the
existence of the one can be shown to be the cause
or one of the causes, or the effect or one of the
effects, of existence of the other, or when the
existence of the one, either alone or together with
other facts, renders the existence of the other
highly probable, or improbable, according to the
common course of events.
(1955)
Wharton's Criminal Evidence
"In prosecutions for homicide, as in criminal
prosecutions generally, evidence to show motive is
competent and considerable latitude is allowed in
its introduction. When proof has been made of the
corpus delicti, all facts and circumstances that
tend to show motive on the part of the accused are
relevant".
, 13 CLR 619, expounded the circumstantial
33. Peacock v. The King
evidence to mean
Whether the fact, or that body of facts which is
called the 'case' is capable of bearing a particular
23
inference, is for the Court, and unless it is so
capable, the Court's duty is to withhold it from the
jury, as a single fact or as a case. But when the
case is undoubtedly capable of the inference of
guilt, albeit some other inference or theory be
possible, it is for the jury, properly directed, and for
them alone, to say not merely whether it carries a
strong probability of guilt, but whether the
inference exists actually and clearly, and so
completely overcomes all other inferences or
hypotheses, as to leave no reasonable doubt of
guilt in their minds.
In AIR 1960 SC
34. Anant Chintaman Lagu v. State of Bombay ,
500, this court defined circumstantial evidence
Circumstantial evidence in this context means, a
combination of facts creating a network through
which there is no escape for the accused, because
the facts taken as a whole do not admit of any
inference but of his guilt.
35. In line with the aforesaid definition, this Court in catena of cases
has expounded the test of ‘complete chain link theory’ for the
prosecution to prove a case beyond reasonable doubt based on
the circumstantial evidence. In Hanumant and Others v. State
, AIR 1952 SC 343 [ hereinafter referred as
of Madhya Pradesh
‘ Hanumant Case ’ for brevity ], this Court explained one of the
24
possible ways to prove a case based on circumstantial evidence,
in the following manner
in cases where the evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should in the
first instance be fully established, and all the facts
so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature
and tendency and they should be such as to
exclude every hypothesis but the one proposed to
be proved.
36. It was for the first time that this Court formulated a test
concerning circumstantial evidence. Subsequently, the aforesaid
test was applied on multiple occasions by this Court in
Deonandan Mishra v. State of Bihar , AIR 1955 SC 801,
, AIR 1960 SC 29.
Govinda Reddy v. State of Mysore
37. In , AIR 1967 SC 520,
Charan Singh v. State of Uttar Pradesh
this Court expounded the proposition laid down in Hanumant
(supra), and observed as under
Case
It is well established that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is
to be drawn should, in the first instance, be fully
established, and the circumstances so established
should be consistent only with the hypothesis of
25
the guilt of the accused person; that is, the
circumstances should be of such a nature as to
reasonably exclude every hypothesis but the one
proposed to be proved. To put it in other words,
the chain of evidence must be so far complete
as not to leave any reasonable ground for a
conclusion consistent with the innocence of the
accused person.
We may note that this Court for the first time explained the
general test applicable for evaluating circumstantial evidence and
brought in the concept of ‘completion of chain of evidence’.
38. In Sharad Birdhichand Sarda v. State of Maharashtra , AIR
1984 SC 1622. Therein, while dealing with circumstantial
evidence, it has been held that the onus was on the prosecution
to prove that the chain is complete and the infirmity or lacuna in
the prosecution cannot be cured by a false defense or plea. The
conditions precedent in the words of this Court, before conviction
could be based on circumstantial evidence, must be fully
established. They are
(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established.
The circumstances concerned ‘must or should’ and
not merely ‘may be’ established;
26
(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
(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.
The aforesaid tests are aptly referred as ‘ Panchsheel of proof in
Circumstantial Cases’ [ refer , AIR
Prakash v. State of Rajasthan
2013 SC 1474]. The expectation is that the prosecution’s case
should reflect careful portrayal of the factual circumstances and
inferences thereof and their compatibility with a singular
hypothesis wherein all the intermediate facts and the case itself
are proved beyond reasonable doubt.
39. Circumstantial evidence are those facts, which the court may
infer further. There is a stark contrast between direct evidence
and circumstantial evidence. In cases of circumstantial evidence,
27
the courts are called upon to make inferences from the available
evidences, which may lead to the accused’s guilt. In majority of
cases, the inference of guilt is usually drawn by establishing the
case from its initiation to the point of commission wherein each
factual link is ultimately based on evidence of a fact or an
inference thereof. Therefore, the courts have to identify the facts
in the first place so as to fit the case within the parameters of
‘chain link theory’ and then see whether the case is made out
beyond reasonable doubt. In India we have for a long time
followed the ‘chain link theory’ since (supra),
Hanumant Case
which of course needs to be followed herein also.
40. We need to consider five aspects and their impact on the case at
hand, before we put forth our analysis. It is well settled that
motive is an important aspect in circumstantial evidence case. In
Shivaji Genu Mohite v. State of Maharashtra , AIR 1973 SC 55
“In case the prosecution is not able to discover an
impelling motive, that could not reflect upon the
credibility of a witness proved to be a reliable eye
witness. Evidence as to motive would, no doubt, go
a long way in cases wholly dependent on
circumstantial evidence. Such evidence would form
one of the links in the chain of circumstantial
evidence in such a case. But that would not be so
28
in cases where there are eyewitnesses of
credibility, though even in such cases if a motive is
properly proved, such proof would strengthen the
prosecution case and fortify the court in its
ultimate conclusion. But that does not mean that if
motive is not established, the evidence of an eye
witness is rendered untrustworthy”.
In this case the motive has an important role as this case is
based on circumstantial evidence, motive herein forms one of the
intermediate fact/circumstances. In this case, the motive of
killing Chander Bhan (deceased) was to foist a false case on
Dharampal son of Beg Raj. If the motive was to foist a false case,
then it is quite strange to believe that the accused went to the
extent of killing their own (supporter of Maha Singh) to avenge
the loss in the elections. Even if the motive is taken to be proved,
then this too only forms one of the circumstances for adducing
the guilt of the accused.
41. The credibility of the witnesses, which the prosecution mainly
relies on to prove the case on the basis of the circumstantial
evidence is an important aspect. In this case the evidence of PW
13 (wife of the deceased) is crucial. Her statements should be
carefully appreciated. The statements, as indicated above, clearly
29
portray that there were material improvements in the statements,
which makes her statement unreliable and doubtful. The
vindictive statements which were made during the cross
examination, clearly bars us from taking her testimony into
consideration. There is no dispute that there was prior enmity
between the wife and the accused appellants, which makes her
statements unreliable. It is revealed from her evidence that, even
though she knew that her husband was taken for shooting
somebody, she kept quiet and did not stop her husband from
accompanying the accused. Such behavior would be suspicious
as it does not fit with the natural human behavior to inspire any
confidence.
42. Although this Court, on number of occasions, reiterated that mere
relationship with the deceased will not be sufficient to discredit a
witness, in the present circumstances, it is apparent that the
wife was an interested witness due to earlier enmity between the
accused. Hence, we are of the considered opinion that the
aforesaid witness does not inspire confidence for us to rely on the
same.
30
43.
Coming to the testimony of the PW14 (Umed Singh), the defense
has tried to exposé the aforesaid witness on certain
contradictions and improvements, which needs our
consideration. At the outset, they question the presence of the
aforesaid witness at Hisar, as the veracity of him being a chance
witness is questionable. Learned senior counsel for the accused
appellant, has strenuously contended that PW14 is a chance
witness, and contends that not much reliance may be placed on
his statement.
44.
Generally, the chance witness, who reasonably explains his
presence in the named location at the relevant time, may be
taken into consideration and should be given due regard, if his
version inspires confidence and the same is supported by
surrounding circumstances. Nonetheless, the evidence of a
chance witness requires a very cautious and close scrutiny. A
chance witness must adequately explain his presence at the
place of occurrence [ refer , (1997) 4 SCC
Satbir v. Surat Singh
192; Harjinder Singh v. State of Punjab , (2004) 11 SCC 253].
Deposition of a chance witness whose presence at the place of
31
incident remains doubtful should be discarded [ refer
Shankarlal v. State of Rajasthan , (2004) 10 SCC 632]. The
behavior of the chance witness, subsequent to the incident may
also be taken into consideration particularly as to whether he
has informed anyone else in the village about the incident. [ refer
, (2005) 9 SCC 650].
Thangaiya v. State of Tamil Nadu
45. It may be noted that the (PW14) has not explained as to why he
was standing near the Bristol Prison so early at 4:00 AM in the
morning of a peak winter day, when the first bus to the village
was at 7:00 AM. Moreover, it is doubtful that A3 would have
brandished a gun, while travelling in the autorickshaw. It is
suspicious that even after getting to know that Chander Bhan
was killed at Hisar, PW14 did not reveal to anybody that he saw
the deceased in the company of the accusedappellant in the
morning travelling towards Hisar. Indeed, it is quite unbelievable
that a man, during peak of north Indian winter, would wait at 4
A.M for a bus, which is scheduled to leave at 7:00 AM morning.
These suspicious circumstances impugn the general
32
trustworthiness of PW14. Therefore, this Court cannot accept
the evidence of this witness as being credible.
46. Now coming to the evidence of Zile Singh (PW16). He narrates
that the three accused met him in the bus stop on the morning of
25.12.1993, when they confessed to their crime individually. We
may note that his statements are ridden with following un
clarified doubts
a. That the Zile Singh (PW16) accompanied the accused,
after they confessed, from the bus stand to the police
station.
b. Not taking the accused to the Police personnel present in
the Bus stand.
c. That his presence in the police station itself is suspicious
as the I.O. Bhim Singh (PW15) has contradicted Zile
Singh (PW16) on this aspect.
d. That there is no signature of Zile Singh ( ) on any of
PW16
the documents in the Police Station.
In light of these circumstances, we need to be cautious in
considering the statements of this witness.
47. Now we need to concentrate on the relevance of the alleged
confessions of the coaccused made before Zile Singh ( ). In
PW16
Re Periyaswami Moopan, AIR 1931 Mad. 177, Reilly J.
33
observed “where there is evidence against the coaccused
sufficient, if believed, to support his conviction, then the kind of
confession described in Section 30 may be thrown into the scale
as an additional reason for believing that evidence”. Therefore, the
aforesaid extrajudicial confession against the coaccused needs
to be taken into consideration if at all it is one, only if other
independent evidence on record have established the basic
premise of the prosecution. The confession of the coaccused
cannot be solely utilized to convict a person, when the
surrounding circumstances are improbable and creates
suspicion. [ refer , AIR 1964
Haricharan Kurmi v. State of Bihar
SC 1184]. As the confession of a coaccused is weak piece of
evidence, we need to consider whether other circumstances prove
the prosecution’s case.
On the aspect of recovery of pellets from a house at Adarsh Nagar,
48.
Hisar, it is an argument of the learned senior counsel, appearing
on behalf of the appellant accused, that the FSL Report
indicating the possibility of pellets being fired from the gun
recovered from the confession of accused A3, should not be
34
considered as the person, who made the report was not
examinedis of some relevance. The FSL report forms part of the
evidence, which is shown to point out that the crime had taken
place in the house at Adarsh Nagar, Hisar and gun of 0.15 bore
belonging to A3 was used for the same. The prosecution was
expected to examine the author of the report, and non
examination of the same is a fatal error in the case at hand.
Moreover, at the scene of occurrence, there was no blood or foot
marks found, which is apparent from the evidence of PW8.
49. The last circumstance, pointed out by the learned senior counsel
for appellant is that, if the intention of the accusedappellant was
indeed to murder the deceased, then, why would they take him
to the Hospital. Thereby, she extends this argument, to portray
that the accused, never had an intention to kill the deceased. It
has not been explained by the prosecution, as to why such action
would be undertaken by the accused and risk taking an alive
person, who was shot, to the hospital. The contention of the
State that this was a diabolic act of perverted criminals, may not
fit the evidence available on record.
35
In line with the aforesaid discussion on various circumstances,
50.
we may now identify the intermediate circumstances, which we
are called upon to infer guilt from
1.) On 15.12.1994, there was a local election, wherein main
candidates were Maha Singh and Dharampal son of Beg
Raj.
2.) Chander Bhan (deceased) was the election agent as well as
the supporter of Maha Singh.
3.) On the day of the election, there was a fight between two
factions, in which Maha Singh and one Darya were charged
for firing gun shots at the supporters of Dharampal son of
Beg Raj.
4.) Maha Singh lost the elections, which was known to the
accused party as well as deceased.
5.) That Sobhat Singh [A2], Dharampal son of Nanak Ram [A
th th
1] and Chander Bhan (deceased), met on 15 16 mid
night.
6.) Near Hisar, the Chander Bhan was seen going with the
accused around the time of the incident. [of doubtful
veracity]
7.) Injured Chander Bhan was alive when he was brought to
Hospital in Hisar by Sobhat Singh [A1] and Dharampal [A
2].
8.) Chander Bhan’s body was found to have sustained more
than fifty ante mortem gun shot wounds.
9.) Gun and pellets were recovered from an abandoned house
in Adarsh Nagar.
10.) Extrajudicial confession recorded before Zile Singh on
25.12.1994.
From the aforesaid circumstances, we may note that the
51.
hypothesis canvassed by the prosecution cannot be said to have
36
been proved beyond reasonable doubt as there exist apparent
gaps in the prosecution story, which are left incomplete or
insufficiently proved. In , AIR
Latesh v. State of Maharashtra
2018 SC 659, this court had observed the ‘ When you consider the
facts, you have a reasonable doubt as to whether the matter is
proved or whether it is not a reasonable doubt in this sense. The
reasonableness of a doubt must be a practical one and not on an
abstract theoretical hypothesis. Reasonableness is a virtue that
forms as a mean between excessive caution and excessive
| indifference to a doubt.’ | In view of this proposition, we accept |
|---|
that there is no direct evidence which led the prosecution to
clearly prove that deceased was shot at Adarsh Nagar in Hisar.
Even the circumstantial evidence which is led, has gaps in
between. In the narration above, there is a big hiatus between
the time the accused left the village and the accusedappellants
were seen in the Hospital, at Hisar. Neither the intermediate facts
are established with certainty, nor the case as a whole is
established beyond reasonable doubt.
37
52. We may note that every acquittal in a criminal case has to be
taken with some seriousness by the investigating and
prosecuting authorities, when a case of this nature is concerned.
We are aware of the fact that there has been a death of a person
in this incident and there is no finality to the aforesaid episode as
it ends with various unanswered questions, which point fingers
at the lack of disciplined investigation and prosecution. Although
Courts cannot give benefit of doubt to the accused for small
errors committed during the investigation, we cannot however,
turn a blind eye towards the investigative deficiencies which goes
to the root of the matter.
53. Now, coming to the case foisted against Dharambir, Umed Singh
and Dharampal (sarpanch) sons of Beg Raj, in Criminal Appeal
No. 1458 of 2012 (Sessions Case No. 62 of 1997 in Sessions Trial
No. 97 of 1997). The prosecution had examined PW1 (Dr. R.S.
Bishnoi), PW2 (Dr. Surendra Singh), PW3 (ASIJagbir Singh),
PW4 (Sobhat Singh [A1]) and PW5 (Dharampal son of Nanak
Ram [A2]). While the defense had led DW1 (Kamla), DW2
38
(Umed Singh), DW3 (Zile Singh), DW4 (Mewa Singh) and DW5
(Bhim Singh).
54. We have considered the reasoning of the court below in this case,
which we accept. Although this case was foisted to be a case of
direct evidence, there is no credibility in the statements of the
accusedappellant as the surrounding circumstances have
shown, as already indicated in the earlier parts of the judgment,
to be against them. We may note the golden rule of evidence that
‘men may tell a lie, but the circumstances do not’, which is
squarely applicable in this case at hand. Therefore, we cannot
also accept the narrative of the accusedappellant in the other
appeals, as a gospel of truth.
55. In view of the discussion above, we allow the Criminal Appeal
No(s). 14451446 of 2012, before us and simultaneously set
aside the conviction and punishment as provided by the Trial
Court in Sessions Case No. 60 of 1995 in Sessions Trial No. 22 of
1995, and dismiss the Criminal Appeal No. 1458 of 2012.
39
Further the concerned authorities are directed to release the
appellantsaccused, if not required in any other case.
……………………………..J.
( N. V. Ramana )
……………………………..J.
( Mohan M. Shantanagoudar )
A UGUST 21, 2018
N EW D ELHI
40