In
The Supreme Court of India Criminal Appellate Jurisdiction Criminal Appeal
No.1307 of 2005
Roop
Singh @ Rupa...Appellant Vs The State of Punjab
JUDGMENT
Dr.
ARIJIT PASAYAT, J.
1.
In this appeal challenge is to the judgment of a Division Bench of the Punjab
and Haryana High Court upholding the conviction of the appellant for offence
punishable under Section 302 read with Section 34 and Section 449 read with
Section 34 of the Indian Penal Code, 1860 (in short the `IPC'). The co-accused
persons who were similarly convicted were acquitted by the High Court.
2.
Background facts in a nutshell are as follows: Jarnail Singh (hereinafter
referred to as the `deceased') and his wife Nasib Kaur immigrated to Canada
about 12 years earlier but had both returned to Kotla about two months before
Jarnail Singh's murder on April 10, 2001. Pala Singh (PW 7) was deceased's
brother in law being the husband of Nasib Kaur's sister. He also belonged to
Kotla. Jarnail Singh lived in his house in the fields, about half a kilometre
from the village, on the passage leading to Baghapurana. According to Pala
Singh, he and Jarnail Singh used to sleep at night at Jarnail Singh's farm
house while Nasib Kaur would sleep with her sister in Pala Singh's house.
On
the evening of April 10, 2001 Nasib Kaur and Pala Singh's son Darshan Singh had
gone to visit Jarnail Singh's 2 sister in Bukhanwala. Pala Singh's grandson
Jaswant Singh had taken food for Jarnail Singh to his house at about 7.30 P.M.
But Jarnail Singh was not there. Later at about 9 P.M.
Gurnam
Singh (PW 5) came to Pala Singh and told him that someone had inflicted
injuries on Jarnail Singh. Gurnam Singh had learnt about this from Assa Singh,
who was employed as a guard at Jarnail Singh's house. Pala Singh alongwith
Lambarder Gurmit Singh of the village went to Jarnail Singh's house and found
Jarnail Singh's dead body lying on a cot. Assa Singh told Pala Singh that
Jarnail Singh had come home at about 8 P.M. on a scooter and about half an hour
later Jarnail Singh had come to him and told him that he had been stabbed.
Pala
Singh went to the courtyard and saw Jarnail Singh's chappals lying there and a
trail of blood from the courtyard to Assa Singh's cot where Jarnail Singh's
dead body lay. Pala Singh immediately went to Bukanwala to fetch Nasib Kaur and
his son. According to Pala Singh, Jarnail Singh was fond 3 of drinking and
would indulge even in this habit during day time.
The
matter was reported by Pala Singh to Inspector Joginder Singh and his statement
was recorded by the Investigating officer at Rajeana bus stand at 6 A.M. on
April 11, 2001. The statement was sent to the Police Station, Baghapurana, and
on its basis F.I.R. was registered at 6.30 A.M. under Section 302 IPC. Special
report of the case was received by Judicial Magistrate, Moga at 10 A.M. on the
same day.
Immediately
thereafter Inspector Joginder Singh (PW 19) set out for the spot, which was
inspected whereafter inquest report was prepared in the presence of Ajaib Singh
and Lambardar Gurmit Singh. The statements of these two witnesses were also
incorporated in the inquest report. After completion of the inquest
proceedings, the dead body of Jarnail Singh was sent for post-mortem
examination which 4 was conducted by Dr. Navraj Singh (PW4), Civil Hospital,
Moga at 12.45 PM.
After
sending thedead body for post-mortem examination, Inspector
JoginderSingh continued his investigation at the spot. He lifted
bloodstained earth from the spot, blood stained quilt, mattress and bed sheet
were also taken into possession from the cot on which Jarnail Singh's dead body
was lying.The Investigating officer had actually cut the blood stained portions
of the above items before taking them separately into possession. A bottle
containing 100 ml of liquor, which was lying up stairs, was also recovered and
taken into possession. Three foot prints moulds were prepared of the foot
prints found at the spot. One of these was of a right shoe and the other two
were of left bare feet.
Moulds
were separately taken into possession. A pair of chappals was also picked up
from the spot. The site plan of the place of the occurrence was prepared.
5
On completion of the investigation, charge sheet was filed and since the
accused persons abjured guilt, they faced trial.
The
trial court, as noted above, directed conviction and imposed sentence.
According to the trial court the case rested on circumstantial evidence and
four factors weighed with the trial court to record conviction. They were (a)
finding of the left foot print of the appellant on the spot of occurrence, (b)
finger print on the bottle of liquor which was found near the place of
occurrence matched with the right index finger of the appellant, (3) there was
extra judicial confession before PWs 2 and 4 evidence of Wazir Singh (PW3)
having seen all the three accused persons together.
The
High Court did not accept the conclusions of the trial court relating to the
relevance of the evidence of PWs 2 & 3.The High Court found the same was
not credible and cogent.
However,
relying on the other two circumstances, the High Court upheld the conviction of
the appellant while directing acquittal of the co-accused persons.The High
Court noted that the chain of the circumstances was not complete so far as 6
PWs 2 & 3 are concerned, but it is complete so far as the present appellant
is concerned.
3.
Learned counsel for the appellant submitted that the conclusions of the High
Court are based on surmises and conjectures and having held that the evidence
of PWs 2 & 3 so far as the alleged confession, or to have seen the accused
persons altogether, to be unreliable, should not have directed conviction.
4.
Learned counsel for the respondent-State on the other hand supported the
judgment of the High Court.
5.
It has been consistently laid down by this Court that where a case rests
squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found
to be incompatible with the innocence of the accused or the guilt of any other
person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and
Ors. v. State of Hyderabad (AIR
7
1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State
of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of
Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC
1890). The circumstances from which an inference as to the guilt of the accused
is drawn have to be proved beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be inferred from those
circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid
down that where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances must be such as to
negative the innocence of the accused and bring the offences home beyond any
reasonable doubt.
6.
We may also make a reference to a decision of this Court in C. Chenga Reddy and
Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In
a case based on circumstantial evidence, the settled law is that the
circumstances from 8 which the conclusion of guilt is drawn should be fully
proved and such circumstances must be conclusive in nature. Moreover, all the
circumstances should be complete and there should be no gap left in the chain
of evidence.
Further
the proved circumstances must be consistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his innocence....".
7.
In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid
down that when a case rests upon circumstantial evidence, such evidence must
satisfy the following tests:
"(1)
the circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established;
(2)
those circumstances should be of a definite tendency unerringly pointing
towards guilt of the accused;
(3)
the circumstances, taken cumulatively should form a chain so complete that
there is no escape from the conclusion that within all human probability the
crime was committed by the accused and none else; and (4) the circumstantial
evidence in order to sustain conviction must be complete and incapable of
explanation of any other 9 hypothesis than that of the guilt of the accused and
such evidence should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence."
8.
In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed
out that great care must be taken in evaluating circumstantial evidence and if
the evidence relied on is reasonably capable of two inferences, the one in
favour of the accused must be accepted. It was also pointed out that the
circumstances relied upon must be found to have been fully established and the
cumulative effect of all the facts so established must be consistent only with
the hypothesis of guilt.
9.
Sir Alfred Wills inhis admirable book "Wills' Circumstantial
Evidence" (Chapter VI) lays down the following rules specially to be
observed in the case of circumstantial evidence: (1) the facts alleged as the
basis of any legal inference must be clearly proved and beyond reasonable doubt
connected with the factum probandum; (2) the burden 10 of proof is always on
the party who asserts the existence of any fact, which infers legal
accountability; (3) in all cases, whether of direct or circumstantial evidence
the best evidence must be adduced which the nature of the case admits; (4) in
order to justify the inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and incapable of
explanation,upon any other reasonable hypothesis than that of his guilt,
(5) if there be any reasonable doubt of the guilt of the accused, he is
entitled as of right to be acquitted".
10.
There is no doubt that conviction can be based solely on circumstantial
evidence but it should be tested by the touch stone of law relating to
circumstantial evidence laid down by the this Court as far back as in 1952.
11.
In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
11
"It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt is
to be drawn should be 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. In
other words, there must be a chain of evidence so far complete as not to leave
any reasonable ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human probability the
act must have been done by the accused." 12. A reference may be made to
a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984
SC 1622). Therein, while dealing with circumstantial evidence, it has been held
that onus was on the prosecution to prove that the chain is complete and the
infirmity of lacuna in prosecution cannot be cured by false defence 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:
12
(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
may be established;
(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 shouldbe 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 compete 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.
13.
As rightly contended by the learnedcounselthe appellant that the two
circumstances highlighted by the High Court while upholding the conviction of
the appellant do not present a complete chain of circumstances which ruled out
the possibility of any other person being the assailant and/or 13 unerringly
points to the accused appellant as being guilty of the charged offences. There
was no evidence led by the prosecution to show that the prints in question came
into existence at the time the alleged incident took place.
14.
We, therefore, find merit in this appeal, which is allowed.
Conviction
as recorded by the High Court cannot be maintained. The appellant is in
custody. He be released forthwith unless required to be in custody in
connection with any other case. We record our appreciation for the able manner
in which learned Amicus Curiae assisted the court.
15.
Appeal is allowed.
..............................J.
(Dr. ARIJIT PASAYAT)
..............................J.
(G.S. SINGHVI) New Delhi, June 20, 2008
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