Appeal
1. The sole appellant herein was tried along with another accused for the murder of one Samsher Singh and convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 for murder and sentenced to rigorous imprisonment for life by the Trial Court1. In appeal, the High Court of Punjab & Haryana2 by the judgment impugned herein dismissed the appeal and confirmed the conviction and sentence. Thus, the present appeal.
Information regarding death
3. When PW-20 got the information that a dead body was found lying, he along with PW-18 and one Mr. Naresh (PW-13) reached the spot and saw that the deceased lying there, with his throat having knotted with some cloth, and the right eye being badly injured. They also noticed some injuries on the head of the deceased. The motorcycle of the deceased was parked by the side. While Naresh and PW-18 remained at the spot, PW-20 had come to inform the police about the incident and his statement was thus recorded and read over to him by the investigating officer (PW-21) with his endorsement at Ex. PW-21/1. After the FIR was registered, PW-24 took over the investigation and recorded the statements of witnesses.
Surrender of accused
8. It is the case of the prosecution that on 17.04.2004, the Appellant (A-1), Sumit Gupta (A-2), Anil & Jaswinder surrendered before the investigating officer through Ex-Sarpanch of village Geong, Balbir Singh (PW-10) to whom the accused made an extra judicial confession. Pursuant to the surrender, the prosecution says that disclosure statements of A-1, A-2, Anil & Jaswinder were recorded, and certain recoveries were also made.
Case against juvenile separated
9. Upon completion of investigation, charge sheet was filed. It may be mentioned at this stage that prosecution of Anil and Jaswinder was separated from this case after they were declared to be juveniles. Thus, only the Appellant and Sumit Gupta (A-2) stood trial. Before the Trial Court, the prosecution examined 24 witnesses and marked certain exhibits. The defence on the other hand examined 3 witnesses as DW 1, 2 and 3.
High court did not discuss evidence of PW.10
11. In appeal by the Appellant herein and accused No.2, Sumit Gupta, the High Court also relied on the evidence of PW-11 and 12. In fact, the High Court seemed to have accepted the submission of the defence that the evidence of Ex. Sarpanch, PW-10 is unreliable. However, without discussing the evidence of PW-10, the High Court observed that the evidence of PW-11 and PW-12 are sufficient to confirm the conviction and sentence imposed by the Trial Court.
Case is based on circumstantial evidence
13. As the case of the prosecution, as accepted by the Trial Court and High Court, is based on circumstantial evidence said to have been established by PW-10, 11 and 12, we will examine them in detail.
Extra-Judicial confession unbelievable
14. PW-10 is an Ex. Sarpanch of the village Geong. His testimony is that on 17.04.2004, while he was in his house, the Appellant (A 1), Sumit (A-2), Anil and Jaswinder came to him and confessed about committing the murder of the deceased. He stated that Sumit Gupta (A-2) disclosed to him that he borrowed money from the deceased and as such there was pressure on him to return the money. When the deceased demanded the money on 10.04.2004, he was apprehensive of being insulted and therefore planned to kill the deceased with the help of other accused. For this purpose, he called the deceased to the T-Point at Kaithal, Dhand Road at 9.30 PM saying that he has arranged the repayment. By the time the deceased came there, other accused were already present at the spot, they all assaulted the deceased with dandas, killed him and threw the dead body in the field near Shergha Road. This witness also stated that all other accused disclosed similar version. Himself being an Ex. Sarpanch, he has thereafter produced the accused before the SHO Police Station Kaithal.
PW.11 unreliable witness
19. This witness is completely unreliable. It is his own statement that he started from Chandigarh at 6 PM on 10.04.2004. The distance between Chandigarh and the place of occurrence is about 120 kilometres and takes about 2 hours to cover the distance even by car. There is no explanation as to how he took more than four hours to reach the scene of offence. This uncertainty is compounded when he admits his ignorance about the person in whose name the car is registered. Further, upon being questioned about where he stayed in Chandigarh the night of 09.04.2004, his answer is simply that he does not remember the name of the lodge. He could not even remember the shops near by the lodge. It is rather surprising that this witness while engrossed in changing the wheel of his car at 10.30 PM manages to note the blood stains on the pant and also recorded the registration number of the motorcycle. There is nothing to indicate that he had a pen or a paper to readily note the registration number. His statement is to be contrasted with the version of Ram Kumar IO (PW-24) who stated that “I did not see any arrangement of the light on the Karnal bypass road especially the alleged place where the car of Rajesh Kumar got punctured and he saw the accused while riding the motorcycle. It is correct that there is no light arrangement on the place of occurrence because it is an agriculture area.” We are not at all impressed with the evidence of PW-11. There are too many coincidences in his version and his story is improbable in the context of the facts and circumstances of the case. He is certainly an unreliable witness.
No evidence as to the manner in which the witness recorded the registration number
21. As per the statement of PW-12, he went on an evening walk between 9.45 to 10 PM, two Kilometres away from his house, particularly in an area which does not have streetlights. The multi-tasking of urinating, coughing, seeing the motorcycle, noting the blood stains clothes and recording the registration number happens simultaneously. There is no evidence as to the manner in which he had recorded the registration number. He is said to have studied only up to 6th class. How could he notice and also memorise the registration number having seen it from a long distance. He himself says the motorcycle was at a distance. His version is highly improbable.
Report the incident two days later
22. This witness says that the blood stained trouser and dandas in the hands of the accused caused suspicion and therefore, he recorded the number. However, that did not compel him to go to the police station. Instead, he reports the incident only on the 12.04.2004, that is two days later. Strangely, instead of reporting the incident to the police chowki which is next to his residence, he goes all the way to Sadar Police Station, Kaithal. We are of the opinion that the evidence of PW-12 does not inspire confidence at all.
Weapon seen by eye-witnesses is stick doctor reported sharp-edged weapon
25. Apart from the improbable and contradictory versions of the three witnesses, Mr. Mullick has also brought to our notice that the weapons recovered by the IO and the ones seen by the witnesses are only sticks. However, the deceased has suffered an incise wound which according to the doctor, PW-14 who conducted the post-mortem, is caused by a sharp-edged weapon. The prosecution has not recovered any sharp-edged weapon. In fact, there is no mention about a sharp-edged weapon at all.
Witnesses seen IO recovered blue terikot pant FSL report states jeans pant
26. The FSL report states that the “pant” sent to them for examination was one dirty blue “terikot pant”. However, as per the recovery memo a “jeans pant” was recovered from the Appellant. Additionally, the FSL report states that the blood on the sticks, blood-stained pants and the blood group of the deceased is the same “O+”. Mr. Mullick has rightly contended that this is not an indication of the guilt. Moreover, nothing of these recoveries took place in the presence of an independent witness. In fact, the IO (PW-24) has admitted that he did not try to join any private person before carrying out the recoveries.
Circumstances do not establish guilt
29. There is a yawning gap between the charge against the Appellant and the evidence that the prosecution has adduced. The circumstances do not establish the guilt of the Appellant at all. While the principle applicable to circumstantial evidence requires that the facts must be consistent with the hypothesis of the guilt of the accused, in the present case the evidence adduced gives rise to doubts, improbabilities and inconsistencies.
Appeal allowed
31. We, therefore, allow Criminal Appeal No. 1338 of 2010 and set aside the judgment of the High Court of Punjab and Haryana at Chandigarh in Pradeep Kumar & Anr. v. State of Haryana in Crl. Appeal No. 805-DB of 2007 dated 05.09.2009 and the judgment of the Court of Additional Sessions Judge, Kaithal in Sessions Case No. 43 of 2004 dated 31.08.2007 convicting and sentencing the appellant under Section 302 read with Section 34 of the Indian Penal Code, 1860.
Parties
PRADEEP KUMAR …APPELLANT VERSUS STATE OF HARYANA PAMIDIGHANTAM …RESPONDENT – CRIMINAL APPEAL NO. 1338 OF 2010 – 2024 INSC 21.
https://main.sci.gov.in/supremecourt/2009/38740/38740_2009_16_1501_49190_Judgement_05-Jan-2024.pdf
Pradeep Kumar vs. State of haryana – 38740_2009_16_1501_49190_Judgement_05-Jan-2024
Further study
Judgments full of citation on all the principles of criminal law
Yardstick in convicting accused in circumstantial evidence and invoking s.106 I.E.act
Double Jeopardy and Same Offence – Explained
Appreciation of Evidence: Explained
Explaining circumstance and burden of proof on accused: With example
