Sunil Rai @ Paua
& Ors. Vs. Union Territory, Chandigarh
J U D G M E N T
AFTAB ALAM, J.
three appellants are serving life sentences for committing murder of one Dile
Ram. They were never on bail and have, thus, completed over ten years of
incarceration. We, therefore, intended to grant leave in the case and release
the appellants on bail. But, the counsel for the respondent stated that once released
on bail it will be almost impossible to get hold of the appellants. We, accordingly,
proceeded to hear the case on merits at the stage of special leave itself and
at the conclusion of hearing we are dismayed to find that the appellants were convicted
and sentenced on completely insufficient evidence.
appellants are migrant workers who came to Chandigarh from different parts of
the country in search of livelihood and were trying to eke out a living by
working as rickshaw pullers. Appellant no.1, Sunil Rai alias Paua (accused
no.1) had his money and clothes stolen by someone breaking open the lock of the
box under the passenger seat of the rickshaw and the quarrel that took place,
as a result of it, is said to be at the root of the alleged offence.
to the prosecution case, on March 29, 2001 at about 8:30 p.m. Arun Kumar
(PW-14), Shailendra Kumar Pandey (PW-9) and one Jaspreet Singh alias Chikna were
present near the GPO, Sector 17, Chandigarh. Appellant no.2, Sher Bahadur alias
Sheru (accused no.2) was also present there. At that time Sunil Rai and appellant
no.3, Ram Lal (accused no.3) came there. Sunil Rai was agitated as his money
and clothes were stolen. He accused Sher Bahadur of committing the theft and an
altercation took place between them. Sher Bahadur told Sunil Rai that he had not
stolen his money or the other articles and it might have been the work of Dile Ram.
He also told Sunil Rai that he would make Dile Ram return his money and
clothes. It was at this stage that Dile Ram also arrived 3at the scene coming
from the side of Jagat Cinema. Sunil Rai caught hold of Dile Ram by his neck and
asked him to return his money and clothes otherwise he would kill him. A scuffle
took place between Sunil Rai and Dile Ram but the latter got himself freed and
ran away from there. The three accused went after him yelling and shouting that
they would not spare him. 12 hours later, at about 8:30 in the morning of March
30, 2001, an unidentified person was found lying in a badly injured condition
at a spot near the local bus stand on the rear side of Neelam Cinema, situate
at the sector 17 market. There were injuries on his head and face. At the spot where
he lay there was a pouch of liquor (Ex. P32), a piece of brick (Ex. P1), a
piece of stone (Ex. P2) and another piece of hard concrete. The blood flowing
from the injuries had stained the earth at the spot, a sample of which was
collected and produced in court as Ex. P3.
injured was sent to hospital where he died. He was later identified as Dile Ram
who, according to the prosecution, was last seen the previous evening, fleeing away
with the appellants in pursuit yelling and shouting threats at him.
three accused were put on trial for the murder of Dile Ram before the Sessions Judge,
Chandigarh, who by judgment dated June 12, 2006 passed in Sessions Case no.02
of July 30, 2001 convicted all of them under section 302 read with section 34
of the Penal Code and by orders dated June 13 & 15, 2006, sentenced them to
rigorous imprisonment for life and a fine of Rs.5,000/- each with the direction
that in default of payment of fine they would undergo rigorous imprisonment for
1 year. The appellants went to the High Court in two separate appeals, one by Sunil
Rai (Criminal Appeal no.580-DB of 2006) and the other by the other two appellants
(Criminal Appeal no.523-DB of 2006). Both the appeals were heard together and
were dismissed by a division bench of the High Court by judgment and order dated
March 5, 2008. The matter is now before this Court in appeal by grant of
the ante mortem injuries on the body of Dile Ram as coming to light from the
medical evidence and the objective findings at the spot where the body was
found lying, it is quite clear that his death was homicidal. But, the question
remains regarding the culpability of the three appellants.
may be stated at the outset that there is no ocular evidence of the commission of
the offence and the prosecution case is based entirely on circumstantial evidence.
There are four circumstances relied upon by the prosecution and accepted by the
trial court and the High Court to hold the appellants guilty of the offence.
These are as under:
deceased was last seen being chased by the appellants yelling at him and shouting
that they would not spare him (paragraphs 20 and 21 of the High Court
Rai made an extra judicial confession before PW-10, Chander Shekhar, President
of the Rickshaw Pullers' Union telling him that he along with Sher Bahadur and
Ram Lal hit Dile Ram with brickbats and stones at about 9:00pm in the night between
March 29 and 30, 2001, causing injuries to him that led to his death
(paragraphs 22, 23 and 24 of the High Court judgment).
recovery of the blood-stained jacket (Ex. P8) of Sunil Rai, appellant no.1 from
under the seat of the rickshaw on the basis of the disclosure statement (Ex.
PU) made by him and that was seized under seizure memo (Ex. PV) (paragraph 27 of
the High Court judgment).
was motive for the accused to beat and even kill Dile Ram (paragraph 25 of the
High Court judgment).
us now examine the evidences in support of each of the four circumstances
the issue of last seen, the prosecution examined Shailendra Kumar Pandey as
PW-9, Arun Kumar as PW-14 and Harish Kumar Bansal as PW- 615. Though Jaspreet
Singh had also been cited earlier as one of the witnesses on this point, he was
not examined before the Court.
in course of his examination-in-chief stated that as he (Dile Ram) was able to
free himself from the hold of Sunil Rai: "Dile Ram ran towards Jagat Theatre.
Pauya and Sheru and Ram Lal ran after Dile Ram." In cross examination he
stated as follows: "Dile Ram went towards Neelam Theatre whereas Sheru and
Pauya went towards Jagat theatre."In reply to a question by the court, he
said: "Chikna and Arun ran towards Jagat theatre. Pauya, Sheru and Ram Lal
ran after the deceased towards Neelam theatre." (emphasis added)
needs to be recalled here that the spot where Dile Ram was found next morning
lying in an injured condition, was near the local bus stand, on the rear side
of Neelam Cinema. It has also come on record that the place where the quarrel took
place between the accused and the Dile Ram and from where Dile Ram ran away,
allegedly being chased by them, is at a large square and Neelam theatre and
Jagat theatre are at its two opposite ends, at a distance of about 1km from each
other. Sub-Inspector, Ramesh Chand Sharma, PW-17 in his deposition said: 7 "...
It is correct that if one comes from Jagat Theatre and goes to Neelam Theatre he
has to pass police post of Neelam Chowki. Subway of Neelam is at a distance of
50 yards from the police post. Some one always remains at police post of Neelam.
After 8/9p.m. only 1/2 persons remain in the police post. It is wrong to say
that 12 persons remain deputed at the police post...."
the first statement of PW-9 suggests that the deceased and the accused had gone
in the direction completely opposite to where his body was found 12 hours
later. His second statement is that the deceased and the accused had gone in
opposite directions. His third statement, in answer to the court question, is
of course that the deceased and the accused had gone in the direction of Neelam
Cinema. It is also to be noted that in his first two statements he only
mentions the names of accused nos.1 and 2, that is, Sunil Rai and Sher Bahadur
but does not name Ram Lal whom he mentions only in his third statement in reply
to the question by the court.
High Court has tried to explain the vacillating statements of PW-9 by observing
as follows: "It appears that Shailender Kumar Pandey, PW9, inadvertently made
a statement that Dile Ram (deceased) ran towards Jagat Cinema, instead of Neelam
Cinema and the accused chased him. Such a minor discrepancy, cannot be given any
weight, since a period of more than one year, and four months, from the date of
altercation, referred to above, had lapsed when Shailender Kumar Pandey PW9 appeared
in the court as a witness."
our mind the vacillations in the deposition of PW-9 cannot be brushed aside as
"minor discrepancy" especially when it is to form the basis for life
sentences to three persons.
all the inconsistencies, on the issue of last seen PW-9 happens to be the best
prosecution witness and the position becomes far worse when we come to the
other two witnesses. PW-14 was first examined on January 14, 2003. In course of
his examination-in-chief, he stated as follows: "... all of a sudden Diley
Ram freed himself from the clutches of Pauya and ran towards Neelam Cinema
located in sector 17. All the three accused i.e. Pauya alias Sunil Rai, Sheru
and Ram Lal also chased Diley Ram and as they were chasing they said they will
cross examination did not take place on that date but it was done later on
April 8, 2003. In cross examination he stated as follows: "... The
deceased was under the influence of liquor on the day of occurrence and some others
had also taken liquor. It is correct that Dilay Ram was insisting for more liquor
whereas the others were saying that they will not consume liquor. Dilay Ram was
demanding money for buying more liquor. Then they all left that place. Dilay Ram
left towards Neelam theatre and the accused present in the court went towards Jagat
theatre...." (emphasis added)
his cross examination, the prosecution declared him `hostile' and filed a petition
seeking permission to cross examine him. The court allowed the petition by
order dated July 11, 2003 and granted permission to the prosecution to cross
examine PW-14, whereupon his cross examination by the prosecution took place on
September 18, 2003. In this round he again went back to his earlier statement
and stated as follows: "... Dilay Ram ran towards Neelam Theatre and all
the accused present in the court today ran after him... ... I say that deceased
ran towards Neelam theatre and the accused followed him. It is correct that
earlier I had mentioned in my statement regarding Jagat Theatre."
only explanation for these contrary statements appears to be that each time
during the gap between his depositions in court he came under the influence of
the one or the other side and made the statements to please the respective
sides. To us, he is not a trustworthy witness and we are unable to place any
reliance on his testimony.
did not at all support the prosecution case on the point of last seen and he did
not even identify the accused present in court. He was declared hostile by the prosecution.
There is one thing, however, quite significant about PW-15. In cross examination
by the defence, it was suggested that he was a tout and a stock witness for the
police. In reply to the suggestion, he stated as under: "... It is wrong
to say that I am a police tout. It is correct that I have been shown as a
witness in case FIR.52 dt.12.8.2K under NDPS Act. It is correct that I also appeared
as a prosecution witness registered under NDPS Act under FIR No.228 dt.15.5.2000.
It is correct that both these cases were investigated by S.I. Ramesh Chand. It
is correct that the spot where the injured was running does not have any light
point. I have not seen any person hitting the injured."
Chand Sharma, S.I. was the investigating officer of the case before the
investigation was taken over by DSP Arjun Singh Jaggi, PW-20. Ramesh Chand
Sharma was examined in the case as PW-17.
a careful consideration of the evidences of PWs 9, 14 and 15, we are unable to see
how the accused can be said to be connected with the commission of the offence on
the basis of the quarrel that is said to have taken place in the evening of
March 29, 2001 between Sunil Rai and Dile Ram. On the basis of the depositions
of PWs 9 and 14 what can be said to have been established is only that while
they were all present near the GPO, Sector 17, a quarrel and a scuffle had taken
place between Sunil Rai and Dile Ram whom he accused of stealing his money and clothes.
But the further story that when Dile Ram freed himself from the grip of Sunil
Rai and ran away from there to-wards Neelam Cinema he was pursued by all the accused
who were shouting that they would not spare him is completely unacceptable on
the basis of their evidences. The failure to establish that part of the story leaves
a wide gap in the prosecution case and weakens it considerably.
now, to the extra judicial confession said to have been made by Sunil Rai
before Chander Shekhar, President, Rickshaw Pullers' Union, Sunil Rai, in his statement
under section 313 of the Code of Criminal Procedure, of course, denied having made
any confessional statement. Chander Shekhar was examined as PW-10. In the
examination-in-chief he stated that on April 1, Sunil Kumar went to him at
about 3 in the afternoon and disclosed that he along with some others had
committed a blunder by killing Dile Singh in course of a fight. He added that
Sunil disclosed to him that Jaspreet Singh and Sher Bahadur had also joined him
in assaulting the deceased.
is, thus, evident that in course of his examination-in-chief, he was trying to
implicate Jaspreet Singh (who was not an accused in the case) and was trying to
save Ram Lal who, according to the prosecution, was accused no.3.
that stage he was declared hostile and on being cross examined by the prosecution,
he said that Sunil had told him that he along with Sher Bahadur and Ram Lal had
caused injuries to Dile Ram by hitting him with brickbats and stones.
further cross examination by the defence, he admitted that Sunil was not known to
him personally but all rickshaw pullers were known to him as he was the
President of one of the three Unions of Rickshaw Pullers of Chandigarh. In
cross examination by the defence, he once again replaced Ram Lal by Jaspreet
Singh and stated that Sunil Rai had disclosed to him that he along with Sher
Bahadur and Jaspreet Singh had thrown stones at the deceased causing injuries to
him leading to his death. Evidently, PW-10 does not have much regard for
the alleged confessional statement was oral and it was not recorded in writing.
Admittedly, Sunil Rai had no personal acquaintance, much less any intimacy with
PW-10. An extra judicial confessional statement made orally before a person with
whom the maker of the confession has no intimate relationship is not a very
strong piece of evidence and in any event it can only be used for corroboration
(See S. Arul Raja v. State of Tamil Nadu, (2010) 8 SCC 233 paragraphs 48-56).
In this case with PW- 10 appearing particularly anxious to implicate Jaspreet
Singh in place of Ram Lal, it further loses any credibility. Further, in the confessional
statement allegedly made before PW-10 there is an inherent improbability. The
"disclosure" made by Sunil Rai before PW-10 did not indicate the
place where the assault on Dile Ram took place but it gave the time of the
assault as 9.00pm. In the evidence of PW-17 it has come that Neelam Police Chowki
is at a distance of 50 yards from the Neelam sub-way. The police post is
naturally manned twenty four hours even though, according to PW-17, after 8-9
pm only one or two persons remain on the post. The occurrence took place on
March 29. At the end of March, 9.00pm is not a very late hour when an
occurrence of this kind taking place near the local bus stand and the parking
place for rickshaws, behind a cinema theatre and at a distance of no more than
50 yards should normally go completely unnoticed by any one, including the
policemen at the police post.
the aforesaid reasons we find it impossible to rely upon the evidence of PW-10
and, thus, goes the extra judicial oral confession by Sunil Rai.
leaves us with the remaining two circumstances, that is to say, the recovery of
the bloodstained jacket of Sunil Rai from under the seat of a rickshaw and motive.
According to the report of the Central Forensic Science Laboratory (Ext. PA)
the pair of pants, shirt, vest, and under-pants taken off from the body of Dile
Ram were stained with human blood of 'B' group; the blood group of the sample
of blood taken from the deceased was also `B'. And the stains on the jacket
recovered from under the seat of the rickshaw were also of the same group of
human blood. The report further indicated that though there were stains of
human blood on the piece of brick and the sample of earth collected from the
spot where the body of Dile Ram was found it was not possible to ascertain the blood
group. The piece of concrete and the stone piece had no blood stains.
effort was made to take the blood sample of Sunil Rai and it is not known what
is his blood group. Moreover, the jacket was recovered from a rickshaw standing
out in the open where it was accessible to anyone. In the aforesaid
circumstances, the recovery of the bloodstained jacket, on its own is a
circumstance too fragile to bear the burden of the appellants' conviction for
the fact that Sunil Rai had got his money and clothes stolen and he believed
that Dile Ram had committed the theft, normally, cannot be said to make out
sufficient motive for him to kill Dile Ram. In any event, motive alone can
hardly be a ground for conviction.
the materials on record, there may be some suspicion against the accused but as
is often said suspicion, howsoever, strong cannot take the place of proof. We, therefore,
find and hold that the conviction of the appellants is based on completely insufficient
evidence and is wholly unsustainable.
is seen above that the quality of the prosecution evidence is too poor to
satisfactorily establish any of the first three circumstances for holding the appellants
guilty of the offence of murder. As none of the three circumstances were
sufficiently proved, there is no question of taking them as links forming an unbroken
chain that would lead to the only possible inference regarding the appellant's
guilt. But before parting with the records of the case, we must sadly observe
that so far as appellant nos.2 and 3 are concerned, it's a case of no evidence inasmuch
as apart from the first the remaining three circumstances are not relatable to
them at all.
second circumstance in the case as noted above was the extra judicial
confession made by Sunil Rai, appellant no.1. It is seen above that PW-10, before
whom the confession was allegedly made, tried his best to shield Ram Lal and to
implicate in his place Jaspreet Singh. Nonetheless, the High Court deemed fit
to use the extra judicial confessional statement made orally by Sunil Rai as
substantive evidence not only against him but against appellant nos.2 and 3 as
well. In our view, the High Court was completely wrong in using the alleged
confessional statement made by Sunil Rai against appellant nos.2 and 3. For taking
into consideration the confessional statement of Sunil Rai against the other
two appellants the High Court has relied upon two decisions of this Court. One
in Ammini v. State of Kerala (1998) 2 SCC 301 and the other in Prakash Dhawal Khairnar
v. State of Maharashtra, (2002) 2 SCC 35. In our view, both the decisions have no
application to the facts of this case. In both cases the confessions were neither
oral nor extra judicial. In both cases confessional statements were made before
a Magistrate and were reduced to writing. In Prakash Dhawal Khairnar, the
Judicial Magistrate, first class, before whom the maker of the confession was produced
not only gave him the due warning but also allowed him 24 hours time to think
over the matter. It was only after he was produced the following day that the
Magistrate recorded his statement under section 164 of the Code of Criminal Procedure.
In Prakash Dhawal Khairnar, the confessional statement was not retracted
Ammini, the facts were entirely different from the present. The accused had entered
into a conspiracy in pursuance of which several unsuccessful attempts were
earlier made before the victims were eventually killed. In the trial for the
crime the accused were charged separately under section 120-B, apart from section
302 read with section 34 of the Penal Code. One of the charges being under section
120-B, the confessional statement by one accused was used against the others on
the basis of section 10 of the Indian Evidence Act. In the present case there
was no allegation of any conspiracy and there was no charge under section 120-B
of the Penal Code.
Prakash Dhawal Khairnar too, one of the charges against the two accused being
father and son was under section 120-B of the Penal Code. 17But the son, the
maker of the confession was acquitted of the charge under section 120-B of the Penal
Code. In that circumstance, the question arose whether the confessional
statement of the son could be used against the other co-accused, his father for
maintaining his conviction under section 302 of the Penal Code. This Court pointed
out that the conviction of the father under section 302 of the Penal Code was based
on a number of circumstantial evidences that were independently established and
the confessional statement of the son was not used as a substantive piece of evidence.
In paragraph 20 of the judgment, this Court observed as follows: "20. In this
case, the High Court has not relied upon the confessional statement as a substantive
piece of evidence to convict Accused 1. It has been used for lending assurance
to the proved circumstances. The High Court held that the proved circumstances would
not involve Accused 2 for the offence punishable under Section 302 IPC and the circumstantial
evidence does not establish that there was any common intention or conspiracy between
the father and the son to commit the offence...."
is, thus, clear that the extra judicial confession of Sunil Rai could not be fastened
upon the other two appellants for holding them guilty of murder and the High Court
was quite wrong in using the confessional statement of Sunil Rai as a
circumstance against the other two appellants.
of the bloodstained jacket of Sunil Rai, the third circumstance obviously does not
relate to appellant nos.2 and 3 in any 18manner. Equally, the theft of the
money and clothes of Sunil Rai would be no motive for the other two accused to
assault Dile Ram, much less to kill him.
seen for any angle the conviction of the appellants cannot be sustained. The
judgments and orders of the High Court and the trial court are completely
unsustainable. The two judgments are set aside. The appellants are acquitted of
the charges and are directed to be released forthwith unless required in
connection with any other case.
the result the appeals are allowed.