State of Punjab Vs.
Kulwant Singh @ Kanta [2008] INSC 1158 (16 July 2008)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APEPAL NO. 493 OF 2001 State of Punjab ......Appellant
Versus Kulwant Singh @ Kanta ......Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
by the State of Punjab in this appeal is to the acquittal of the respondent
from the charge of commission of offence punishable under Section 302 of the
Indian Penal Code, 1860 (in short the `IPC'). The learned Sessions Judge,
Faridkot, had convicted the respondent for the said offence and awarded death
sentence. In view of the award of the death sentence, reference was made to the
High Court under Section 366 of the Code of Criminal Procedure, 1973 (in short
the `Code').
2.
Prosecution
version as unfolded during trial is as follows:
Law was set on motion
on the basis of the statement made by Parminder Singh (PW4) who stated that he
is running a marriage palace known as Chahal Marriage Palace on Malout Road, at
Muktsar. Ashok Kumar Lalji Tiwari and Sham Sunder sons of Sager Ram, residents
of Gangoli Khurd, Distt.
Gaunda [U.P.] and
Kulwant Singh alias Kanta son of Mohinder Singh were employed by him as
servants in that marriage palace. Gurpal Singh son of Mukhtiar Singh, was
employed as Chowkidar in the said marriage palace. There was a function in the
marriage palace on the evening of 26.8.1996. Manjit Singh Mistri, resident of
Malout alongwith other labourers was constructing sheds in that marriage palace
for the last many days. After the conclusion of the function he went to his
house and told his servants to look after the property of the marriage palace.
On 27.8.1996 at about 7.00 A.M. Manjit Singh Mistri came to his house and told
him that smell was coming- out of the rooms of the marriage palace. Hearing
this he along with his brother Parminder Singh and Mistri Manjit Singh went to
the marriage palace and saw that smoke was coming out of the marriage palace.
He alongwith Raminder Singh and Manjit Singh Mistri saw from the back side door
of the marriage palace that the dead bodies of Ashok Tiwari and Sham Sunder
(hereinafter referred to as deceased by name) were burning there. They also saw
that pieces of glass were scattered in the lobby of the marriage palace and
Lalji Tiwari (hereinafter referred to as deceased by name) was lying dead in
the adjoining room and there were mark of injuries on his head and the blood
was coming out of the injuries. When they came out, they saw that Gurpal Singh
Chowkidar was lying unconscious in the grassy ground of the marriage palace and
his head was stained with blood. A vehicle was arranged and Gurpal Singh was
sent to the Civil Hospital, Muktsar, with Manjit Singh. He along with his
brother Raminder Singh went inside and when Kulwant Singh moved a little, thinking
that he was alive, they picked him up and got him admitted in the Civil
Hospital. He left his brother Raminder Singh with the dead bodies. He suspected
that the offence was committed by respondent-Kulwant Singh alias Kanta due to
some grievance.There was no injury on the body of Kulwant Singh and three
persons had been murdered and the fourth was lying in serious condition, as
such it appeared that it was an act of Kulwant Singh. After the registration of
the case S.I. Beant Singh, who was posted as S.H.O. in Police Station City
Muktsar, at that time, alongwith ASI Ravel Singh, ASI Gurmel Singh and other
officials and Parminder Singh went to the place of occurrence. Raminder Singh
(PW5) was found present near the dead bodies. Inquest reports of Lalji Tiwari,
Ashok Kumar and Sham Sunder were prepared. There were hairs in the right hand
of the dead body and piece of cloth in the left hand of Lalji Tiwari. The dead
bodies along with the requests were sent for post mortem examination through
ASI Gurmel Singh. S.I. Beant Singh inspected the place of occurrence. One bed
sheet stained with blood, blood stained earth were picked up from the bed room
where the dead body of Lalji Tiwari was lying. These were made into parcels and
sealed with the seal bearing mark 'BS' and the parcels were taken into
possession.
Pieces of glass were
picked up from the lobby and they were made into parcel and were taken into
possession. Ashes were picked up from the room where the dead bodies of Sham
Sunder and Ashok Kumar were lying. These were made into parcel and sealed with
the seal bearing impression 'BS' and were taken into possession. Burnt mat was
picked up and made into parcel and taken into possession. Blood stained earth
was picked up from the place where the Chowkidar was lying. The same was made
into parcel and sealed with the seal bearing mark `BS' and taken into
possession. Blood stained ashes were also picked up and made into parcel and
sealed with the seal bearing mark 'BS'. Rough site plan of the place of
occurrence was prepared. Statements of the PWs were recorded. Then Beant Singh
S.I. went to the Hospital. Accused Kulwant Singh, who was admitted in the
hospital was interrogated and on interrogation he disclosed that he had kept
concealed one iron rod, his shirt and pant stained with blood underneath the
empty cement bags lying in the store of marriage palace and he could get the
same recovered. The disclosure statement of the accused was recorded. Then the
accused was got discharged from the Hospital. After that the accused in
accordance with his disclosure statement got recovered an iron rod, pant and
shirt stained with blood. A separate parcel of the iron rod and another parcel
of the pant and shirt were prepared and the same were taken into possession.
Before making the parcel of the shirt a piece was taken out of the same and was
taken into possession. After the post mortem examination ASI Gurmel Singh
produced the belongings of the deceased and these were taken into possession
after making into parcel. On return to the Police Station the case property was
deposited with the M.H.C. On 30.8.1996 the accused was taken to the Hospital
where a sample of his hairs was taken by Dr. Meena Jagga, made into a parcel
and sealed by the doctor and the said parcel was taken into possession. On
return to the Police Station the case property was deposited with the M.H.C.
The parcels of the hair, pant, shirt of the accused, chadar, blood which were
picked up from near the bed, burnt pieces of cloth and the soil picked up from
near the place where Gurpal Singh was lying and pieces of cloth of the shirt
and the parcel of iron rod were sent to the Forensic Science Laboratory and the
reports regarding the same were received. Statements of the PWs were recorded
and after the completion of the investigation the accused was sent up for
trial. The charge against the accused was for the alleged commission of offence
punishable under Section 302 I.P.C. for having committed the murders of Sham
Sunder, Lalji Tiwari and Ashok Kumar and under Section 307 I.P.C. for causing
injuries to Gurpal Singh was framed on 16.1.1997. The accused pleaded innocence
and claimed trial.
The prosecution to
prove its case against the accused examined Dr. P.N. Girdhar (PW1), Dr. Meena
Jagga (PW2), Dr. Madan Gopal Sharma (PW3), Parminder Singh (PW4), Raminder
Singh (PW5), Gurpal Singh (PW6), Baljit 'Singh (PW7), Beant Singh S.I. (PW8),
Kulwant Chand M.H.C. (PW9), Constable Harbans Lal as (PW10), Constable
Balwindar Singh (PW11) and ASI Gurmel Singh (PW12). The reports of the Forensic
Science Laboratory Ex.P.GG, Ex.P.HH, Ex.P.JJ and Ex.P.KK have also been
tendered in evidence.
The trial Court found
that the evidence on record which was substantial in nature clearly established
the guilt of the accused as there were three persons who had lost their lives
and, therefore, the death sentence was awarded. In appeal, the High Court upset
the conviction and directed acquittal.
3.
Learned
counsel for the appellate-State submitted that this was a case where the
accusations were established against the accused and, therefore, the High Court
was not justified in interfering with the well-reasoned and elaborate judgment
of the trial Court.
4.
In
response, learned counsel for the accused-respondent supported the judgment of
the High Court.
5.
It
is to be noted that the pivotal witness was PW-6. He claimed to be an
eye-witness. In that sense, this was not a case where prosecution relied on
circumstantial evidence. The High Court found that this witness was examined
after about a month of the incident. The only explanation offered was that the
witness was hospitalized and was lying in unconscious state for about one week.
Even if that be so, no explanation was offered as to why after PW-6 was
released from the hospital he was not examined for about three weeks. The
investigating officer who could have thrown light on this aspect was not
examined. No reason was indicted for such non-examination. The other relevant
factor is that the alleged incident took place around 12 midnight. The
information was lodged at about 8.30 a.m. PW-4 stated that he learnt about the
incident from Manjit Singh Mistri at about 7.00 a.m. and when he went to the
place of occurrence he found dead bodies of two persons. From the back side of
the hall he found that dead bodies of the two deceased persons were burnt. He
noticed this aspect alongwith his brother Raminder Singh and Manjit Singh
Mistri. The respondent-accused was lying on scattered pieces of gross in the
lobby in front of the adjoining bed room. Blood was oozing from his injured
head. On coming out he found Gurpal Singh (PW-6) lying unconscious on the
grassy ground. He made arrangements for sending Gurpal Singh to the Civil
Hospital, Muktsar alongwith Majjit Singh Mistri. He went inside and when he saw
that the accused- respondent was alive, he was also sent to the Civil Hospital,
Muktsar. After that he claimed to have gone to the Police Station to lodge the
report. The High Court found that there was abnormal delay in lodging the FIR.
Learned counsel for the appellate-State submitted that the informant Parminder
Singh (PW4) was told by Manjit Singh around 7.00 a.m. and some time was spent
for taking the injured person to the hospital and thereafter the FIR was lodged
and, therefore, there was in fact no delay. It is to be noted that the High
Court found that the aforesaid Manjit Singh was not examined as a witness. His
evidence would have thrown considerable light as to whether and when he
informed the informant as claimed. He is supposed to have taken Gurpal Singh to
the hospital. His non-examination has been rightly taken note of to be a vulnerable
factor by the High Court. There are certain other aspects which need to be
noted. PW-6 was taken to the hospital. The doctor attending to him sent
information to the SHO of the concerned Police Station at 7.15 a.m. According
to the evidence of the doctor, he was taken to the hospital at 7.15 a.m. and
immediately thereafter the information was sent to the Police Station.
Interestingly, the respondent was taken to the hospital at 8.30 a.m. It has not
been explained by the prosecution as to why there was delay in sending the
respondent-accused to the hospital. Here again, doctor attending to him sent
information to the Police Station. It was accepted before the High Court that
before lodging of the FIR by the informant, the intimations given by the police
had reached the police station. The effect of these informations was not
considered by the trial Court. Whether they constituted FIR or not is another
question. The third factor which has weighed with the High Court to direct
acquittal was the non-explanation of the injuries on the accused. Though,
non-explanation of the minor injuries could not be a factor to make the
prosecution version vulnerable in all cases, but if the injuries were of
serious nature the prosecution has to explain that aspect.
6.
In
the instant case, the evidence of the doctor who examined the accused clearly
stated that the injuries were on account of dragging him on surface littered
with broken glasses. In that background the injuries on the accused had to be
explained.
7.
Considering
the scope of Section 417 Cr.P.C. (old) (corresponding to Section 378 of present
Cr.P.C.), the Privy 1934 PC 227, held that the Court gives full power to the
High Court to review at large the evidence upon which order of acquittal is
founded and to reach the conclusion whether an order of acquittal needs to be
reversed or not upon that evidence, hence no limitation should be placed on
that power unless found expressly stated in the Code. However, the Privy
Council put certain principles as a matter of caution to be observed by the
appellate court stating that the High Court should and will always give proper
weight and consideration to such matters before reaching its conclusion upon
facts, namely- (1) the view of the trial court as to the credibility of the
witnesses; (2) the presumption of innocence in favour of the accused and that
presumption is not weakened by the fact that he has been acquitted at his
trial; (3) the right of the accused to the benefit of any doubt and (4) the
slowness of an appellate- court in disturbing a finding of fact arrived by a
Judge who had the advantage of seeing the witnesses. To summarize the Privy
Council observed:
"......To state
this however is only to say that the High Court in its conduct of the appeal
should and will act in accordance with rules and principles well known and
recognized in the administration of justice."
8.
The
aforesaid view was reiterated by the Privy Council in Nur Mohammad V. Emperor
AIR 1954 PC 151 and affirmed by this Court also in Prandas V. State AIR 1954 SC
36. The judgment of this Court was rendered by a Bench of six- Hon'ble Judges
of this Court. A three-Judge Bench of this Court in Aher Raja Khima v. State of
Saurashtra (1955 (2) SCR 1285) observed that it is not enough for the High
Court to take a different view of the evidence; there must also be
"substantial and compelling reasons" for holding that the trial Court
was wrong. The words "substantial and compelling reasons" observed in
Khima's case (supra) sought to be interpreted subsequently as if only in
exceptional cases High Court can interfere. The matter came up before this
Court in where a three-Judge Bench of this Court noted that the words
"substantial and compelling reasons" used in certain decisions have
created some difficulty in understanding the scope of the said words.
Explaining the same this Court held as under:
"This Court
obviously did not and could not add a condition to s.417 of the Criminal
Procedure Code. The words were intended to convey the idea that an appellate
court not only shall bear in mind the principles laid down by the Privy Council
but also must give its clear reasons for coming to the conclusion that the
order of acquittal was wrong. "
9.
It
concluded as under:
14 "The
foregoing discussion yields the following results (1) an appellate court has
full power to review the evidence upon which the order of acquittal is founded;
(2) the principles laid down in Sheo Swarup's case afford a correct guide for
the appellate court's approach to a case in disposing of such an appeal; and
(3) the different phraseology used in the judgments of this Court, such as. (i)
"substantial and compelling reasons", (ii) "good and
sufficiently cogent reasons", and (iii) strong reasons" are not
intended to curtail the undoubted power of an, appellate court in an appeal
against acquittal to review the entire evidence and to come to its own
conclusion;
but in doing so it
should not only consider every matter on record having a bearing on the
questions of fact and the reasons given by the court below in support of its
order of acquittal in its arriving at a conclusion on those facts; but should
also express those reasons in its judgment which lead it to hold that the acquittal
was not justified. "
10.
A
Constitution Bench of this Court again reviewed all the aforesaid judgments in
M.G. Agarwal vs. State of Maharashtra (1963 (2) SCR 405) and reiterating the
principles laid down in Sheo Swarup (supra), it affirmed the view taken by the
this Court in Sanwat Singh (supra) and held "it is not necessary that
before reversing a judgment of acquittal, the High Court must necessarily
characterised the findings recorded therein as perverse."
11.
(1973)
2 SCC 793 it was held that "in law there are no fetters on the plenary
power of the appellate Court to review the whole evidence on which the order of
acquittal is founded and, indeed, it has a duty to scrutinize the probative
material de novo, informed, however, by the weighty thought that the rebuttable
innocence attributed to the accused having been converted into an acquittal the
homage our jurisprudence owes to individual liberty constrains the higher court
not to upset the holding without very convincing reasons and comprehensive
considerations. "
12.
SCR
363 reiterating the principles as mentioned in Sheo Swarup (supra), the this
Court observed as under:
16
"............... Occasionally phrases like manifestly illegal', 'grossly
unjust', have been used to describe the orders of acquittal which warrant
interference. But, such expressions have been used more, as flourishes of
language, to emphasise the reluctance of the Appellate Court to interfere with
an order of acquittal than to curtail the power of the Appellate Court to
review the entire evidence and to come to its own conclusion .....If. two
reasonably probable and evenly balanced views of the evidence are possible, one
must necessarily concede the existence of a reasonable doubt. But, fanciful and
remote possibilities must be left out of account. To entitle an accused person
to the benefit of a doubt arising from the possibility of a duality of views,
the possible view in favour of the accused must be as nearly reasonably
probable as that against him...."
13.
There
has not been any change and in many subsequent aforesaid views have been
reiterated. This Court in Chandrappa and Ors. v. State of Karnataka (2007 (4)
SCC 415), having a complete retrospect on all the earlier judgments, has culled
down, in para 41, the following principles regarding the power of the appellate
court while dealing with an appeal against an order of acquittal:
(1) An appellate
Court has full power to review, appreciate and reconsider the evidence upon
which the order of acquittal is founded (2) The Code of Criminal Procedure,
1973 puts no limitation, restriction or condition on exercise of such power and
an appellate Court on the evidence before it may reach its own conclusion,,
both on questions of fact and of law;
(3) Various expressions,
such as, 'substantial and compelling- reasons; 'good and sufficient grounds',
'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc.
are not intended to curtail extensive powers of an appellate Court in an appeal
against acquittal.
Such phraseologies
are more in the nature of 'flourishes of language' to emphasize the reluctant
of an appellate Court to interfere with acquittal than to curtail the power of
the Court to review the evidence and to come to its own conclusion.
(4) An appellate
court, however, must bear in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the presumption of innocence
available to him 18 under the fundamental principle of criminal jurisprudence
that every person should be presumed to be innocent unless he is proved guilty
by a competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence it further reinforced, reaffirmed
and strengthened by the trial court.
(5) If two reasonable
conclusions are possible on the basis of evidence on record, the appellate
court should not disturb the finding of acquittal recorded by the trial
court."
14.
In
our considered view the acquittal as directed by the High Court cannot be
faulted. Even though it may be possible hypothetically to take a different view
on the evidence, we are not inclined to interfere with the view of the High
Court. The appeal is, therefore, dismissed.
..........................................J.
(Dr.
ARIJIT PASAYAT) ....................................
……………………………......J
(P.
SATHASIVAM) 19 .....................................
……………………………......J
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