Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 548-551 of 2013, Judgment Date: Dec 16, 2015

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION



                    CRIMINAL APPEAL NOS. 548-551  OF 2013


STATE OF PUNJAB              …..                                   APPELLANT

                                   VERSUS

BITTU & ANR. ETC. ETC.       ……                                   RESPONDENT

                               J U D G M E N T

Pinaki Chandra Ghose, J.

These appeals by special leave have been directed against the  judgment  and
order dated 11.8.2011 passed by the High Court  of  Punjab  and  Haryana  at
Chandigarh in Criminal Appeal No. D-341, 407, 607 and 772  of  2004  whereby
the High Court allowed the criminal appeals filed by the respondents  herein
and acquitted them from offence punishable  under  Section  302,  364,  201,
120B of the Indian Penal Code, 1860 [hereinafter referred to as “IPC”].


The  brief  facts  necessary  to  dispose  of  these  appeals  are  that  on
9.10.2002, a police party headed by SHO Jaswinder Singh,  along  with  other
police officials, was on  patrolling  duty  in  the  area  of  truck  union,
Bhawanigarh. The complainant Gurdip Singh son of Arjan  Singh,  resident  of
Village Kasba Bharawal, Police Station Malerkotla  came there  and  got  his
statement recorded with the SHO Jaswinder Singh, to  the  following  effect:
That on the preceding night at about 2:00 a.m., when he was  performing  his
duty at the Dera Kar Sewa, Balad Crossing, Bhawanigarh, he saw  the  accused
persons Bittu, Neetu,  Tony,  Jagdeep  @  Michu  and  Ashok  Kumar  @  Rocky
(deceased), who were known to him, coming towards the Dera from  Bhawanigarh
side.  In  the  meantime,  Harkesh  Kumar  (PW-2)  who  was  a  resident  of
Bhawanigarh also came there. Bittu, Neetu, Tony and Michu threw Ashok  Kumar
(the deceased) on the floor and placed  a  big  stone  on  his  chest.  They
forcibly  closed  his  nose  and  mouth  after  which  Ashok  Kumar   became
unconscious. Thereafter, the accused persons dragged him  towards  the  main
road, where his clothes were removed and they stuffed his mouth  with  soil.
The complainant and Harkesh Kumar asked the accused persons not  to  do  so.
Shortly after that, accused Jaswant Singh also came there on  a  Maruti  Car
bearing No.PB-34/1110. He along with  other  accused,  loaded  the  body  of
Ashok Kumar in the car on the pretext that they were going to admit  him  in
the  Civil  Hospital,  Bhawanigarh.  They  threatened  the  complainant  and
Harkesh Kumar with dire consequences, if  they  disclosed  the  incident  to
anybody. In the next morning, the complainant  and  Harkesh  Kumar  came  to
know that the dead body of Ashok Kumar and his clothes  were  lying  on  the
road near  the  Dera  of  Baba  Sham  Giri.   Upon  this  statement  of  the
complainant, a formal FIR was recorded.

After  investigation  the  Police  filed  its  report  and  the  prosecution
presented  the  challan  against  the  accused  persons  in  the  Court   of
Additional Chief Judicial Magistrate, Sangrur, on 2.1.2003. Thereafter,  the
case  was  committed  to  the  Court  of  Sessions  Judge,  Sangrur.   After
considering the material on record and hearing the prosecution and  defence,
charges under Sections 120-B, 364, 302 and 201  of  the  Indian  Penal  Code
were framed, read over and explained to the accused persons who pleaded  not
guilty and claimed for trial.


The Trial Court by its judgment and order  dated  19.3.2004,  convicted  the
accused/respondents and sentenced them as follows: Bittu,  Neetu,  Tony  and
Jagdeep Singh were convicted under Section 302 IPC and sentenced to  undergo
life imprisonment and pay a fine of Rs.10,000/-  each,  in  default  whereof
they were directed to undergo further R.I. for  one  year  each.  They  were
further sentenced to undergo R.I. for 10 years and R.I. for  5  years  under
Sections 364 and  120-B  of  the  IPC,  respectively,  and  pay  a  fine  of
Rs.2,000/- and Rs.1,000/- each, with  default  clauses.  They  were  further
sentenced to undergo R.I. for 3 years under Section 201 IPC  and  to  pay  a
fine of Rs.1,000/- each, in default whereof each of  them  were  to  undergo
R.I. for 3 months. Accused Jaswant Singh was sentenced to undergo  R.I.  for
3 years under Section 120-B of IPC and to pay  a  fine  of  Rs.  1,000/-  in
default whereof he was to undergo further R.I. for 3 months.


Aggrieved by the judgment and order dated  19.3.2004  passed  by  the  Trial
Court, the accused persons challenged their conviction  by  filing  criminal
appeals before the High Court of Punjab and  Haryana  at  Chandigarh,  being
Criminal Appeal Nos. D-341, D-407, D-607 and D-341 of 2004. The  High  Court
by the impugned judgment and order allowed the appeals on  the  ground  that
the prosecution failed  to  prove  the  chain  of  circumstances  enough  to
connect all the accused with  the  alleged  offence  and,  consequently  the
respondents were set at liberty. The State of Punjab is, thus, before us  in
appeal against the acquittal of the accused persons, who are respondents  in
the present appeals.

Mr. Jayant K. Sud, learned Additional Advocate  General  appearing  for  the
State of Punjab, has inter alia submitted that the  judgment  of  the  Trial
Court is well reasoned and well  considered.  He  has  submitted  last  seen
theory, motive, recovery and  corroboration  by  medical  evidences  as  the
grounds for proving the guilt of the  accused.  He  assailed  the  reasoning
given by the High Court in coming to a wrong conclusion i.e.  the  innocence
of the accused. The Learned counsel appearing  for  the  accused-respondents
has vehemently  rebutted  the  grounds  argued  by  the  learned  Additional
Advocate General.

The Trial Court convicted the  accused  respondents  on  the  basis  of  the
prosecution story relying upon the following circumstantial evidences:-
Testimony of eyewitnesses Narain  Dass  (PW-5),  Gurdeep  Singh  (PW-6)  and
Kashmir Chand (PW-7), is natural and there is no  enmity  between  them  and
the accused persons.

The medical evidence corroborates the statements of Narain Dass  (PW-5)  and
Kashmir Chand (PW-7).

Motive has been proved by the testimony of Kashmir Chand (PW-7).

The High Court pointed out serious  lacunae  in  the  above  said  evidences
which were considered by the trial  court  in  convicting  the  accused  and
hence the conviction order was set aside as the necessary benefit  of  doubt
was given to the accused.
We have perused the oral and documentary evidences on record. We  shall  now
examine each and every contention in light of the arguments  adduced  before
us in the Court. Harkesh Kumar (PW-2) and the complainant Gurdip Singh  (PW-
6) were eyewitnesses as per  the  prosecution  story.  But  they  failed  to
support the prosecution case  as  they  turned  hostile  during  the  trial.
Gurdip Singh had made a statement to the police regarding  the  FIR  on  the
basis of which the case was registered. But  when  he  appeared  before  the
Court as PW-6, he testified that he heard  some  commotion  at  around  2:00
a.m. on the date of incident and when he came  down  to  the  main  road  he
found a crowd of about 14-15 persons. He also stated that he  saw  a  person
lying unconscious and did not know who that person was. He saw  4-5  persons
putting the  body  of  that  person  in  the  car  and  taking  him  towards
Bhawanigarh. He denied of having been acquainted to  the  accused  and  also
stated that he could not say whether the  accused  appearing  in  the  court
were the same persons he saw that night. In cross-examination,  he  did  not
own up any part of the previous statement which led to the FIR  except  that
part where he had named Bittu,  Neetu,  Jagdeep  and  Tony  as  the  accused
persons  to  the  Police.  Harkesh  Kumar  (PW-2)  failed  to  support   the
prosecution case and was declared  hostile.  He  was  admittedly,  the  real
maternal uncle of the deceased and was alleged to have been  present  as  an
eyewitness during the incident, as per the FIR. It is unnatural for him  not
to have come to the rescue of his nephew even when he had identified him  as
the victim. Thus, the two main  eyewitnesses  turned  hostile  and  did  not
support the case of the prosecution.

The next aspect for consideration before us is the statement of Narain  Dass
(PW-5). He stated in his testimony that he, along with  one  Sita  Ram,  had
come to Shiv Mandir, Bhawanigarh, for paying obeisance at around  6:00  a.m.
and had witnessed the silver  coloured Maruti  car  bearing  No.  PB-34-1110
outside that Mandir. The said car was being driven  by  Neetu  and  all  the
five accused persons were present in the car and they stopped  the  car  and
threw the dead body of the deceased near a truck  which  was  parked  there.
They also threw the clothes of the deceased. He admitted that  the  deceased
was his real nephew (bhanja). He also stated that after chasing the  accused
when he failed to get hold of them, he went back home. He did not  meet  the
police from 6:00 a.m. to 9:00 a.m. that day. He also  stated  that  at  6:00
a.m. on that morning, there may be some darkness. His statements  thus  lead
to an inference that his presence was doubtful. PW-5 was the  real  maternal
uncle of the deceased and he did  not  even  bother  to  check  whether  the
deceased was dead or alive. Also, the fact that he did not meet  the  police
for 3 hours is a strange fact considering that  his  nephew  had  died.  The
High Court has discussed in great volume the discrepancies in  the  evidence
of PW-5 and the time gap between his seeing the accused and his meeting  the
police, as per his  allegation.  It  makes  the  statement  of  PW-5  highly
doubtful.

The next incriminating fact is the motive  behind  the  crime  as  has  been
established by the testimony of Kashmir Chand  (PW-7).  He  stated  that  on
8.10.2002 at about 8:00 p.m. he had gone to see Ram Leela in  Grain  Market,
Bhawanigarh and had seen  the  five  accused  persons  conspiring  with  one
another about finishing Ashok Kumar, because he was not agreeing  to  remove
his fruit Rehri from the front of the meat shop of Bittu and Nitu.  He  also
stated that he saw the accused beating and  sitting  upon  the  deceased  at
about 2:30 a.m. at night. Even if the motive  is  clearly  established,  the
fact that PW-7 was admittedly the friend of the deceased, he ought  to  have
warned the deceased about such plans of the accused.  PW-7  stated  that  he
had gone to see Ram Leela and came back after 15-20 minutes  to  his  house,
had his meals and later left the house at around 2:00 a.m.  Neither  he  was
named in the FIR nor did he care to warn the deceased or his family  members
of the conspiracy that he had  overheard.  This  makes  his  conduct  highly
unnatural and his presence doubtful at the  place  of  incident.  Thus,  his
statement merely establishes the motive of the accused.

The  prosecution  failed  to  prove  its  case  on  one  more  aspect.   The
prosecution alleged that the medical evidence corroborates their story.  But
the testimony of Dr. Sanjeev Jindal (PW-1), who did the medical  examination
of the deceased, does not support this fact. He  stated  that  the  internal
injuries of the deceased were such that they  may  have  been  caused  by  a
heavy stone kept on the chest, but he did not clearly  establish  the  same,
in his opinion. He merely said that the possibility  cannot  be  ruled  out.
Also, if the incident occurred in the manner stated in the  FIR,  sufficient
quantity of soil should have been found in the mouth of the deceased but PW-
1 has categorically stated in his testimony that no soil was  found  in  the
mouth of the deceased. He had merely found some dust sticking  to  the  face
of the deceased which could be caused by merely throwing the  dead  body  on
the ground or even on a metalled road which is dust free.
All the above circumstances lead to the inference that the  prosecution  has
failed to bring home its case. It appears that  the  testimonies  of  Narain
Dass (PW-5) and Kashmir Chand (PW-7) are highly doubtful and do not  inspire
confidence. Though the motive has been well established by the testimony  of
PW-7, but it alone cannot be sufficient to convict the accused as it is  not
substantive evidence  and  is  merely  corroborative  in  nature.  Even  the
medical evidence  fails  to  support  the  prosecution  version.  Thus,  the
conviction of the accused cannot be sustained.

In the light of the above discussion, we find no grounds to  interfere  with
the judgment passed  by  the  High  Court.  The  appeals  are,  accordingly,
dismissed.

                                      …....................................J
                                                      (Pinaki Chandra Ghose)


                                       …...................................J
                                                              (R.K. Agrawal)
New Delhi;
December 16, 2015