APPEAL
1. These appeals challenge the judgment and order of the High Court of Punjab and Haryana, dated 4th February 2010, in Criminal Appeal No. 430-DB of 2001, upholding the conviction and sentence imposed upon the accused – appellants herein by the Additional Sessions Judge, Bathinda (hereinafter referred to as “Trial Court”), for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
NECESSARY FACTS
2.3 A year and a half prior to the occurrence of the incident, Tapinder Singh had returned to the village. It is alleged by him that two days prior to the date of the incident, i.e. on 1st September 1998, a dispute arose between Ravinder Singh and Manjit Kaur, on account of her allegedly deficient moral character. Ravinder Singh had beaten Manjit Kaur during this incident, whereafter Manjit Kaur had allegedly threatened Ravinder Singh that he would not survive.
2.4 Two days later, i.e. on 3rd September 1998, accused Manjit Kaur along with one Pritinder Singh, alias Lovely, accused – appellant herein, came in a car bearing Registration No. HR 21 7778 and took Ravinder Singh in the said car on the pretext of purchasing shoes. Pertinently, Tapinder Singh was also present in the house at this time and allegedly noticed that accused Manjit Kaur was carrying her 12 bore double barrel licensed gun in the car.
2.5 When the deceased Ravinder Singh did not return that evening, suspicion arose in the mind of Tapinder Singh and on the very next day, he along with one Gurdeep Singh, son of Gurmit Singh, went to Naga Mahantanwala Dera in search of the deceased. The Mahant of the Dera told them that the three individuals, i.e. two accused and the deceased, had come in a car the previous night at around 9:30 PM. While both the appellants had their meals, Ravinder did not. The Mahant also informed Tapinder Singh that Ravinder Singh 4 and Manjit Kaur were arguing with each other and, while leaving, had mentioned that they were going to the house of one Surjit Singh, resident of village Kotha Guru, in their car.
2.6 Thereafter, Tapinder Singh set out for Surjit Singh’s house and reached the bridge of the minor canal on the way to Kotha Guru at about 8:30 AM, where they found the dead body of the deceased Ravinder Singh, lying on the pavement of the canal. The body bore two gunshot wounds. The car in which the appellants and the deceased were travelling was also standing there, with the aforementioned gun kept inside, along with the cartridges. On the same day at around 10:15 AM, a complaint was filed on the basis of which an FIR was registered at 11:00 AM and an inquest report was prepared. A special report was subsequently received by the Magistrate on the same day at 2:15 PM. On the very same day, both the accused-appellants herein were apprehended and arrested and subjected to medical examination by the Medical Officer of Primary Health Center Bhagta Bhai Ke at 8:45 PM.
CASE IS OF CIRCUMSTANTIAL NATURE
5. Undisputedly, the present case is a case which rests on circumstantial evidence. The law with regard to conviction in the case of circumstantial evidence is very well crystalised in the case of Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116].
6. We may gainfully refer to the following observations of this Court in the case of Sharad Birdhichand Sarda (supra):
“….”
LEGAL PRINCIPLES ON CIRCUMSTANTIAL EVIDENCE
7. It can thus be seen that this Court has held that the circumstances from which the conclusion of guilt is to be drawn should be fully established. It has been held that the circumstances concerned “must or should” and not “may be” established. It has been held that there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. It has been held that 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. It has been held that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one sought to be proved, and that there must be a chain of evidence so complete so 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.
8. It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. In the light of these guiding principles, we will have to consider the present case.
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12. The law with regard to extra-judicial confession has been succinctly discussed in the case of Munna Kumar Upadhyay alias Munna Upadhyaya v. State of Andhra Pradesh through Public Prosecutor, Hyderabad, Andhra Pradesh [(2012) 6 SCC 17], wherein this Court has also referred to its earlier judgments, which read thus:
….
DISBELIEVING EXTRA-JUDICIAL CONFESSION
13. From the evidence of PW-2, we find that it cannot be said that the extra-judicial confession is one which could be found to be credible. There appears to be no reason as to why the accused persons would go 100 kms. away and confess to him. Apart from that, his conduct also appears to be unnatural. Though IO Amritpal Singh (PW-11) was known to him and the telephone which was installed in his house was in a working condition, he did not find it necessary to inform him through telephone. We are, therefore, of the considered view that the courts below have erred in relying on the extra-judicial confession made to PW-2.
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INTERESTED WITNESS
15. He stated that since they did not return, it raised a suspicion in his mind. He, therefore, along with Gurdeep Singh, went in search of the deceased Ravinder Singh. They went to the Dera at village Maluka where the Mahant of the Dera told them that Manjit Kaur and Pritinder Singh had come there at around 09.30 PM. Thereafter, he stated that the Mahant told them that the appellants and the deceased 17 had left the Dera saying that they had to go to the house of Surjit Singh. Then the complainant and Gurdeep Singh started for the house of Surjit Singh and, when they reached the bridge of the minor canal at about 08.30 AM, they saw the dead body of his brother on the pavement of the minor canal. He further stated that the body of his brother bore two gun shots. The car was also standing there. The gun was lying in the car along with a belt containing 7 cartridges. Thereafter, when he and Gurdeep Singh were going to the Police Station to lodge the report, they found a police party led by SI Amritpal Singh (PW-11) near the bus stand of V. Guruka Kotha, to whom he narrated the entire incident to, then and there. As already stated hereinabove, the relations between the appellant Manjit Kaur and this witness are strained. As such, the testimony of this witness, being an interested witness, will have to be scrutinized with greater caution and circumspection.
UNNATURAL CONDUCT OF WITNESS
16. It appears to be improbable that, when appellant Manjit Kaur had herself threatened the deceased that he would no longer be alive, a real brother would permit the deceased to accompany her and another accused and, that too, when the 18 accused was carrying a gun with her. We find that the evidence of this witness will have to be taken with a pinch of salt.
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GUN NOT PROVED
22. We find that the conviction on the basis of such evidence cannot be sustained. Apart from that, it is to be noted that even according to PW-11, the gun which was recovered from the car had two empty cartridges (Ex. P10 and P11). Furthermore, the evidence of Dr. Rakesh Kumar Goel (PW-5), who had conducted the post-mortem of the deceased, would show that there was no external exit wound, and wad and pellets were preserved and sealed. It is to be noted that apart from not collecting any evidence as to whether the said gun belonged to the appellant Manjit Kaur, even the Ballistic Expert has not been examined to show that the wad and pellets were fired from the empty cartridges (Ex. P10 and P11).
23. It will be relevant to refer to the following observations of this Court in the case of Sukhwant Singh v. State of Punjab [(1995) 3 SCC 367]:
“21. ………It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent.”
24. No doubt that this case has been recently distinguished by a three-Judges Bench of this Court in the case of Gulab v. State of Uttar Pradesh [(2022) 12 SCC 677], relying on the earlier judgments of this Court in the cases of Gurucharan Singh v. State of Punjab [[1963] 3 SCR 585] and State of Punjab v. Jugraj Singh [(2002) 3 SCC 234].
25. However, it is to be noted that the case of Jugraj Singh (supra) was a case of direct evidence, where there was evidence of two eye-witnesses. The present case is a case based on circumstantial evidence. In view of the serious doubt with regard to the credibility of the witnesses on the issue of extra-judicial confession and last seen theory, the failure to examine Ballistic Expert would, in our opinion, be a glaring defect in the prosecution case. We are, therefore, of the considered view that the prosecution has failed to prove the case beyond reasonable doubt and, as such, the accused are entitled to benefit of doubt.
26. In the result, the appeals are allowed. The impugned judgment and order of the High Court dated 4th February 2010 and the judgment of the Trial Court dated 10th July 2001 are quashed and set aside.
Accused acquitted.
PARTY: PRITINDER SINGH @ LOVELY vs THE STATE OF PUNJAB – CRIMINAL APPEAL NO. 1635 OF 2010 – JULY 05, 2023.
https://main.sci.gov.in/supremecourt/2010/12332/12332_2010_4_1501_44784_Judgement_05-Jul-2023.pdf
Pritinder Singh @ Lovely vs. The State of Punjab – circumstantial case.
