Appeal
This appeal assails the judgment and order of the High Court of Punjab & Haryana (for short the High Court) dated 01.05.2012 rendered in Criminal Appeal No. 372 of 2002, whereby the judgment and order of the trial Court convicting and sentencing the respondent (Kewal Krishan) under Section 302, IPC has been set aside and the appellant (respondent herein) has been acquitted of the charges for which he was tried.
Article-136: Court must be slow in interfering in appeal against acquittal
Before we proceed further, it would be apposite to notice the law as to when it would be appropriate for this Court, exercising power under Article 136 of the Constitution of India, to interfere with an order of acquittal passed by the High Court while reversing an order of conviction recorded by the Trial Court. The law in this regard is well settled. Normally, this Court is reluctant to interfere with an order of acquittal. But when it appears that the High Court has on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case and ignoring some of the most vital facts, acquitted the respondent and the order of acquittal passed by the High Court has resulted in a grave and substantial miscarriage of justice, extraordinary jurisdiction under Article 136 of the Constitution of India may rightfully be exercised (See: State of U.P. v. Sahai, (1982) 1 SCC 352).
In State of M.P. v. Paltan Mallah, (2005) 3 SCC 169 “….”
In a recent decision rendered by this Court in Basheera Begam v. Mohd. Ibrahim, (2020) 11 SCC 174 “…”
In light of the law noticed above, we would have to examine, firstly, whether the High Court ignored or misread any material piece of evidence which has resulted in miscarriage of justice; secondly, whether there is any perversity in the appreciation of evidence; and, thirdly, whether the view taken by the High Court is a plausible view.
Yardstick in convicting accused in circumstantial evidence
17. This is a case based on circumstantial evidence. It is trite law that to convict an accused on the basis of circumstantial evidence, the prosecution must prove beyond reasonable doubt each of the incriminating circumstances on which it proposes to rely; the circumstance(s) relied upon must be of a definite tendency unerringly pointing towards accused’s guilt and must form a chain so far complete that there is no escape from the conclusion that within all human probability it is the accused and no one else who had committed the crime and they (it) must exclude all other hypothesis inconsistent with his guilt and consistent with his innocence.
On facts
“…….” PW-2, the sole witness of the last seen circumstance, in his deposition in court, stated that he had expressed his suspicion in respect of accused’s involvement to the police on 13.12.1998. The High Court opined that if PW-2 was aware of the last seen circumstance and had made such a disclosure, there was no reason for the police not to act against the accused till 25.12.1998. Therefore, the statement of PW-2 in respect of imparting knowledge of the last seen circumstance appeared doubtful and it appeared that the witness was set up to create link evidence. The High Court also noticed that the alleged date and time when the deceased was last seen alive was at quite a distance from the date and time when the deceased was found dead. Indisputably the deceased was found dead in his own house where the accused did not reside. The deceased was allegedly last seen 11 alive in the company of the accused in the evening at around 7 pm of 10.12.1998 whereas the body of the deceased was found 2 days later, on 12.12.1998. Autopsy report, based on autopsy conducted at around 4.15 pm on 12.12.1998, noted occurance of rigor mortis in the lower limbs, which gives rise to a possibility of death being within 30 hours of the autopsy, meaning thereby that death might have occurred much after 7 pm of 10.12.1998. In such circumstances, bearing in mind that the deceased was found dead in his own house, where the accused did not reside, and there was no evidence as to when the accused left the house and that no one else could have entered the house in the interregnum, other intervening circumstances including hand of some third person in the crime was not ruled out by the prosecution evidence. For the reasons above, we are of the considered view that the High Court was justified in doubting the testimony of PW-2 and finding the last seen circumstance inconclusive in pointing towards the guilt of the accused by excluding other hypotheses consistent with his innocence.
Appreciation on Extra-Judicial confession
Insofar as the evidence of extra judicial confession made by the accused is concerned, the same was provided by PW-3, a member of the Panchayat wherein the deceased resided. Ordinarily a person makes a confession either to absolve oneself of the burden of guilt or to seek protection under the hope that the person to whom confession is made would protect him. Normally a confession to absolve oneself of the guilt is made to a person on whom the confessor reposes confidence. The High Court noticed that there was no evidence to demonstrate that the accused had any prior relations with PW-3 or that the accused hoped for, or sought, any help from PW-3 and, therefore, made the confession to him. Notably, the accused denied making any such confession. For the reasons above, including other, which need not be put on record, the High Court discarded the circumstance of the accused making a confession before PW-3 on 25.12.1998. Otherwise also, an extra judicial confession is a very weak type of evidence and solely on its basis a conviction is not ordinarily to be recorded.
Enmity is not a ground in circumstantial evidence
The argument of the learned counsel for the appellant that since there was no proven enmity between the accused and the witnesses therefore there was no reason to disbelieve them, would not be of much help to the appellant because this is a case based on circumstantial evidence. In a case based on circumstantial evidence not only do each of the incriminating circumstances have to be proved beyond reasonable doubt but those incriminating circumstances must constitute a chain so far complete that there is no escape from the conclusion that within all human probability it is the accused who has committed the crime and further, cumulatively, they must exclude all hypotheses consistent with the innocence of the accused and inconsistent with his guilt. As we have found that the incriminating circumstances were not proved beyond reasonable doubt and otherwise also the circumstance of last seen was inconclusive, in our view, the High Court was justified in setting aside the order of conviction recorded by the Trial Court.
When burden under section 106 Evidence Act shall arise
The argument that the accused has failed to discharge his burden under section 106 of the Evidence Act and, therefore, his conviction was justified is misconceived. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, the question arises of considering facts of which the burden of proof would lie upon the accused. (See: Shivaji Chintappa Patil v. State of Maharashtra (2021) 5 SCC 626). Here, as we have discussed above, firstly, the incriminating circumstances were not proved beyond reasonable doubt and, secondly, they do not form a chain so complete from which it could be inferred with a degree of certainty that it is the accused and no one else who, within all human probability, committed the crime. In these circumstances, there was no occasion to place burden on the accused with the aid of section 106 of the Evidence Act to prove his innocence or to disclose that he parted company of the deceased before his murder.
Acquittal confirmed.
Party
STATE OF PUNJAB vs. KEWAL KRISHAN – CRIMINAL APPEAL NO. 2128/2014 – JUNE 21, 2023.
https://main.sci.gov.in/supremecourt/2013/4502/4502_2013_7_102_44713_Judgement_21-Jun-2023.pdf
state of punjab vs. kewal krishan – circumstantial evidence
