Full Judgment Text
2024 INSC 60
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2351 of 2011
Krishan …..Appellant
Versus
State of Haryana …..Respondent
J U D G M E N T
Abhay S. Oka, J.
FACTUAL ASPECTS
1. The appellant is accused no.2, who, along with
accused no.1 – Mahesh, was convicted for the
offences punishable under Section 302 of the Indian
Penal Code (for short ‘IPC’) and Section 25 of the
Arms Act. The appellant and the co-accused were
ordered to undergo life imprisonment for the offence
punishable under Section 302 of the IPC. The
conviction and sentence of the appellant have been
confirmed by the High Court by the impugned
Signature Not Verified
Digitally signed by
ASHISH KONDLE
Date: 2024.01.25
16:17:18 IST
Reason:
judgment.
Crl.A.No.2351 of 2011
Page 1 of 10
2. It is a case of the murder of Pawan and Ajju
Chaudhary. According to the prosecution case, on
rd
03 of January 2004, the deceased Pawan went to
Rohini to meet his ailing sister Sushila. Dharmender
(PW-2) is the complainant. Dharmender is the
brother of the deceased Pawan. According to
Dharmender, the deceased Pawan had fallen into
bad company and cases of dacoity and theft were
th
registered against him. He stated that on 04
January 2004, he enquired with his sister, who told
him that the deceased Pawan had returned after
meeting her. According to Dharmender, around
th
09:00 a.m. on 05 January 2004, he was informed
by someone that his brother Pawan had been shot
dead. Thereafter, the bodies of both the deceased
were found by the police.
3. The prosecution examined a total of 20
witnesses. The prosecution relied upon the evidence
of PW-1 – Mukesh and PW-3 – Vijender as they were
allegedly the eyewitnesses. Dharmender (PW-2) was
also examined. The other two material witnesses are
PW-15 Sub-inspector Desh Raj and PW-20 DSP
Puran Chand. At the relevant time, PW-20 was the
Investigating Officer. Both the witnesses are
relevant on the issue of recovery of the weapon of the
offence at the appellant's instance, as there are no
Crl.A.No.2351 of 2011
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independent witnesses to the recovery. According to
the case of the prosecution, the report of the ballistic
expert showed that the bullets recovered from the
body of the deceased Pawan were fired from the
country-made pistol, which was recovered at the
instance of the appellant.
SUBMISSIONS
4. Shri Gaurav Agrawal, learned counsel
appointed as amicus curiae submitted that the case
of the prosecution is not based on circumstantial
evidence but on the eye-witness account of witnesses
PW-1 and PW-3. He submitted that neither of the
eyewitnesses supported the prosecution and both
were declared hostile. He urged that in the absence
of any independent witness, the recovery of the
alleged weapon at the instance of the appellant
cannot be relied upon. Moreover, the recovery is
from an open place accessible to all, and that also
happened more than one month after the date of the
incident. He pointed out that PW-2 – Dharmender
had deposed that as deceased Pawan was on inimical
terms with one Naresh Yadav, he suspected that
Pawan and Ajju Chaudhary must have been either
murdered by Naresh Yadav or by someone at his
instance. By pointing out the testimony of PW-20,
he submitted that no investigation was carried out
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about the involvement of Naresh Yadav, who was the
first suspect. He would, therefore, submit that the
prosecution has failed to prove the case beyond a
reasonable doubt.
5. Ms. Bina Madhavan, the learned counsel
appearing for the State of Haryana, submitted that
the recovery of the weapon of assault had been
proved to have been made at the instance of the
appellant. The report of the expert establishes that
the bullet found on the dead body of deceased Pawan
could have been fired from the weapon recovered at
the instance of the appellant. She placed reliance on
the following decisions:
1
(i) John Pandian etc. v. State
(ii) Golakonda Venkateswara Rao v. State of
2
A.P.
3
(iii) State of Punjab v. Jagir Singh & Ors.
(iv) State, Govt. of NCT of Delhi v. Sunil &
4
Anr.
(v) Pawan Kumar @ Monu Mittal etc. v. State
5
of U.P. & Anr. etc.
(vi) Suresh Chandra Bahri etc. v. State of
6
Bihar
1
(2010) 14 SCC 129
2
(2003) 9 SCC 277
3
(1974) 3 SCC 277
4
(2001) 1 SCC 652
5
(2015 7 SCC 148
6
1995 Supp. (1) SCC 80
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She relied upon the decisions in support of her
contention that conviction can be based on the
disclosure and recovery of a weapon at the instance
of the accused.
OUR VIEW
6. We have carefully considered the submissions
made across the bar. We have perused the evidence
of the material prosecution witnesses with the
assistance of the learned counsel appearing for the
appellant. At the outset, it must be noted here that
the prosecution case is not based on circumstantial
evidence. It is specifically based on the evidence of
the alleged eye-witnesses, i.e., PW-1 and PW-3.
Apart from the eyewitnesses, the prosecution relied
upon the recovery of the alleged weapon of offence at
the instance of the appellant and the fact that the
appellant disclosed the place where he had thrown
the dead bodies.
7. As neither PW-1 nor PW-3 supported the
prosecution, what remains to be considered is only
the evidence of alleged recovery at the instance of the
appellant. According to the prosecution case, the
th
offence occurred after the evening of 04 January
th
2004 and before 09:00 a.m. on 05 January 2004.
According to the versions of PW-15 and PW-20, the
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appellant allegedly made a disclosure statement on
th
09 February 2004. According to both the
witnesses, the appellant disclosed that he had kept
a country-made pistol along with two cartridges
wrapped in a polythene bag in front of the Plaza
building. Though PW-15 deposed that the appellant
disclosed that the country-made pistol, along with
two cartridges wrapped in a polythene bag, was kept
underneath the earth in the eastern corner of the
open space, PW-20 did not specifically depose that
the appellant disclosed that the articles were kept
underneath the ground. PW-15 described how the
appellant took the police to the park in front of the
Plaza Building. He did not state that the recovery
was made after digging the earth. He stated that the
appellant led the police to the eastern corner of the
park and showed the country-made pistol of 315
bore along with two cartridges. Even PW-20, in his
examination-in-chief, did not disclose that recovery
was made after digging. Though Memorandum
Panchnama of recovery recorded that the weapon
was recovered after digging, both PW-15 and PW-20
have not deposed to that effect. Though both the
police witnesses initially stated that no independent
witnesses were available, PW-20 stated in his cross-
examination that there were public witnesses
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available who were not found interested.
8. More than one factor renders the prosecution
theory regarding recovery very suspicious and
doubtful. The first factor is that the recovery was
allegedly made one month and four days after the
occurrence. Secondly, the recovery was made from
open space in a garden. Thus, the place was easily
accessible to many. Thirdly, neither PW-15 nor PW-
20 have stated that the weapon and cartridges were
buried underground and were recovered only after
digging. Lastly, though independent witnesses were
available, they were not made witnesses to the
Panchnama made pursuant to the alleged statement
made by the appellant. As the recovery of the weapon
at the appellant's instance cannot be believed, the
decisions relied upon by the learned counsel for the
respondent are not significant at all. She relied upon
the decisions which hold that in certain cases, a
conviction can be based on the recovery of the
weapon of offence at the instance of the accused.
th
9. According to the prosecution case, on 09
February 2004, the appellant led the police party to
a place where he had thrown the dead bodies.
th
However, dead bodies were already recovered on 05
January 2004. Therefore, the place from which dead
Crl.A.No.2351 of 2011
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bodies were recovered was known to the police long
th
before 09 of February 2004. Consequently, it
cannot be said that there was a discovery by the
appellant of the place where dead bodies were kept.
Therefore, that part of the statement of the accused,
which records that he would show the place where
he had thrown the dead bodies, is not admissible in
evidence under Section 27 of the Indian Evidence
Act, 1872.
10. PW-2 – Dharmender, the complainant and real
brother of deceased Pawan, deposed that he
suspected the involvement of one Naresh Yadav in
the offence. PW-20, in his cross-examination,
admitted that he did not make any investigation
whether there was any enmity between the said
Naresh and the deceased. He admitted that one
Mukesh was a personal friend of the deceased
Pawan. He pleaded ignorance about the correctness
of the suggestion that Mukesh had murdered
Naresh. The police have not investigated the role
played by the said Naresh Yadav, who, according to
PW-2, the brother of the deceased, was on inimical
terms with the deceased. When, according to the
family of the deceased, Naresh Yadav was the
suspect, police ought to have investigated the role
played by Naresh Yadav. There is yet another critical
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aspect of the case. PW-15 and PW-20 have not
stated in their examination-in-chief how they
became aware that PW-1 and PW-3 were the
eyewitnesses.
11. For all the aforesaid reasons, the evidence of
recovery of the weapon at the instance of the
appellant cannot be accepted as reliable. Moreover,
the findings we have recorded above create a serious
doubt about the truthfulness of the prosecution
case. Therefore, in any case, the benefit of the doubt
must be extended to the appellant. It can also be
said that once the evidence of recovery is disbelieved,
it was a case of no evidence as the eyewitnesses did
not support the prosecution.
12. Accordingly, the appeal must succeed. The
nd
impugned judgment and order dated 02 May 2011
in Criminal Appeal No.942-DB of 2007 passed by the
High Court of Punjab and Haryana and the judgment
th
and order dated 19 September 2007 in Sessions
Case No.13 of 2004 passed by the Additional
Sessions Judge, Gurgaon are hereby quashed and
set aside insofar as the appellant Krishan is
concerned, and he stands acquitted of the offences
alleged against him. We direct that the appellant
shall be immediately set at liberty unless his custody
Crl.A.No.2351 of 2011
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is required in connection with any other case.
13. Appeal is accordingly allowed.
……………………………J.
[ABHAY S. OKA]
...…………………………J.
[UJJAL BHUYAN]
New Delhi
January 25, 2024.
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