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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 548-551  OF 2013

STATE OF PUNJAB …..     APPELLANT

VERSUS

BITTU & ANR. ETC. ETC. ……                 RESPONDENT

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These  appeals  by  special  leave  have  been  directed  against  the

judgment  and  order  dated  11.8.2011  passed  by  the  High  Court  of

Punjab and Haryana at Chandigarh in Criminal Appeal No. D-341, 407,

607  and  772  of  2004  whereby  the  High  Court  allowed  the  criminal

appeals filed by the respondents herein and acquitted them from offence

punishable  under  Section  302,  364,  201,  120B  of  the  Indian  Penal

Code, 1860 [hereinafter referred to as “IPC”].

2. The brief facts necessary to dispose of these appeals are that on

9.10.2002, a police party headed by SHO Jaswinder Singh, along with

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other police officials, was on patrolling duty in the area of truck union,

Bhawanigarh.  The  complainant  Gurdip  Singh  son  of  Arjan  Singh,

resident  of  Village  Kasba  Bharawal,  Police  Station  Malerkotla   came

there and got his statement recorded with the SHO Jaswinder Singh, to

the following effect:  That  on the preceding night at  about 2:00 a.m.,

when he was performing his duty at the Dera Kar Sewa, Balad Crossing,

Bhawanigarh, he saw the accused persons Bittu, Neetu, Tony, Jagdeep

@ Michu and Ashok Kumar @ Rocky (deceased), who were known to

him, coming towards the Dera from Bhawanigarh side. In the meantime,

Harkesh Kumar (PW-2) who was a resident of Bhawanigarh also came

there. Bittu, Neetu, Tony and Michu threw Ashok Kumar (the deceased)

on the floor and placed a big stone on his chest. They forcibly closed his

nose  and  mouth  after  which  Ashok  Kumar  became  unconscious.

Thereafter, the accused persons dragged him towards the main road,

where his clothes were removed and they stuffed his mouth with soil.

The complainant and Harkesh Kumar asked the accused persons not to

do so. Shortly after that, accused Jaswant Singh also came there on a

Maruti  Car  bearing  No.PB-34/1110.  He  along  with  other  accused,

loaded the body of Ashok Kumar in the car on the pretext that they were

going to admit him in the Civil Hospital, Bhawanigarh. They threatened

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the complainant and Harkesh Kumar with dire consequences, if  they

disclosed the incident to anybody. In the next morning, the complainant

and Harkesh Kumar came to know that the dead body of Ashok Kumar

and his clothes were lying on the road near the Dera of Baba Sham Giri.

Upon this statement of the complainant, a formal FIR was recorded.

3. After investigation the Police filed its report and the prosecution

presented  the  challan  against  the  accused  persons  in  the  Court  of

Additional Chief Judicial Magistrate, Sangrur, on 2.1.2003. Thereafter,

the case was committed to the Court of Sessions Judge, Sangrur. After

considering  the  material  on  record  and hearing  the  prosecution and

defence, charges under Sections 120-B, 364, 302 and 201 of the Indian

Penal  Code  were  framed,  read  over  and  explained  to  the  accused

persons who pleaded not guilty and claimed for trial.

4. The  Trial  Court  by  its  judgment  and  order  dated  19.3.2004,

convicted  the  accused/respondents  and  sentenced  them  as  follows:

Bittu, Neetu, Tony and Jagdeep Singh were convicted under Section 302

IPC  and  sentenced  to  undergo  life  imprisonment  and  pay  a  fine  of

Rs.10,000/-  each,  in  default  whereof  they  were  directed  to  undergo

further R.I. for one year each. They were further sentenced to undergo 3

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R.I. for 10 years and R.I. for 5 years under Sections 364 and 120-B of

the IPC, respectively, and pay a fine of Rs.2,000/- and Rs.1,000/- each,

with default clauses. They were further sentenced to undergo R.I. for 3

years under Section 201 IPC and to pay a fine of Rs.1,000/- each, in

default  whereof  each  of  them  were  to  undergo  R.I.  for  3  months.

Accused Jaswant Singh was sentenced to undergo R.I. for 3 years under

Section 120-B of IPC and to pay a fine of Rs. 1,000/- in default whereof

he was to undergo further R.I. for 3 months.

5. Aggrieved by the judgment and order dated 19.3.2004 passed by

the Trial Court, the accused persons challenged their conviction by filing

criminal  appeals  before  the  High  Court  of  Punjab  and  Haryana  at

Chandigarh,  being  Criminal  Appeal  Nos.  D-341,  D-407,  D-607  and

D-341 of 2004. The High Court by the impugned judgment and order

allowed the appeals on the ground that the prosecution failed to prove

the chain of circumstances enough to connect all the accused with the

alleged offence and, consequently the respondents were set at liberty.

The State of Punjab is, thus, before us in appeal against the acquittal of

the accused persons, who are respondents in the present appeals.

6. Mr. Jayant K. Sud, learned Additional Advocate General appearing

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for the State of Punjab, has inter alia submitted that the judgment of

the Trial Court is well reasoned and well considered. He has submitted

last  seen  theory,  motive,  recovery  and  corroboration  by  medical

evidences  as  the  grounds  for  proving  the  guilt  of  the  accused.  He

assailed the reasoning given by the High Court in coming to a wrong

conclusion  i.e.  the  innocence  of  the  accused.  The  Learned  counsel

appearing  for  the  accused-respondents  has  vehemently  rebutted  the

grounds argued by the learned Additional Advocate General.

7. The Trial Court convicted the accused respondents on the basis of

the  prosecution  story  relying  upon  the  following  circumstantial

evidences:-

i. Testimony  of  eyewitnesses  Narain  Dass  (PW-5),  Gurdeep

Singh  (PW-6)  and  Kashmir  Chand  (PW-7),  is  natural  and

there is no enmity between them and the accused persons. ii. The medical evidence corroborates the statements of Narain

Dass (PW-5) and Kashmir Chand (PW-7). iii. Motive has been proved by the testimony of Kashmir Chand

(PW-7).

8. The  High  Court  pointed  out  serious  lacunae  in  the  above  said

evidences which were considered by the trial  court  in  convicting the

accused and hence the conviction order was set aside as the necessary

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benefit of doubt was given to the accused.

9. We have perused the oral and documentary evidences on record.

We  shall  now  examine  each  and  every  contention  in  light  of  the

arguments adduced before us in the Court. Harkesh Kumar (PW-2) and

the  complainant  Gurdip  Singh  (PW-6)  were  eyewitnesses  as  per  the

prosecution story. But they failed to support the prosecution case as

they turned hostile during the trial. Gurdip Singh had made a statement

to  the  police  regarding  the  FIR  on  the  basis  of  which  the  case  was

registered. But when he appeared before the Court as PW-6, he testified

that  he  heard some commotion at  around 2:00  a.m.  on the  date  of

incident and when he came down to the main road he found a crowd of

about  14-15  persons.  He  also  stated  that  he  saw  a  person  lying

unconscious  and  did  not  know  who  that  person  was.  He  saw  4-5

persons  putting  the  body  of  that  person  in  the  car  and  taking  him

towards  Bhawanigarh.  He  denied  of  having  been  acquainted  to  the

accused and also stated that  he  could not  say whether  the  accused

appearing in the court were the same persons he saw that night.  In

cross-examination,  he  did  not  own  up  any  part  of  the  previous

statement which led to the FIR except that part where he had named

Bittu, Neetu, Jagdeep and Tony as the accused persons to the Police.

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Harkesh Kumar (PW-2) failed to support the prosecution case and was

declared  hostile.  He  was  admittedly,  the  real  maternal  uncle  of  the

deceased and was alleged to have been present as an eyewitness during

the incident, as per the FIR. It is unnatural for him not to have come to

the rescue of his nephew even when he had identified him as the victim.

Thus, the two main eyewitnesses turned hostile and did not support the

case of the prosecution.

10. The next  aspect  for  consideration before  us  is  the  statement  of

Narain Dass (PW-5). He stated in his testimony that he, along with one

Sita Ram, had come to Shiv Mandir, Bhawanigarh, for paying obeisance

at around 6:00 a.m. and had witnessed the silver  coloured Maruti car

bearing No. PB-34-1110 outside that Mandir. The said car was being

driven by Neetu and all the five accused persons were present in the car

and they stopped the car and threw the dead body of the deceased near

a truck which was parked there.  They also  threw the clothes of  the

deceased. He admitted that the deceased was his real nephew (bhanja).

He also stated that after chasing the accused when he failed to get hold

of them, he went back home. He did not meet the police from 6:00 a.m.

to 9:00 a.m. that day. He also stated that at 6:00 a.m. on that morning,

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there may be some darkness. His statements thus lead to an inference

that his presence was doubtful. PW-5 was the real maternal uncle of the

deceased and he did not even bother to check whether the deceased was

dead or alive. Also, the fact that he did not meet the police for 3 hours is

a strange fact considering that his nephew had died. The High Court

has discussed in great volume the discrepancies in the evidence of PW-5

and the time gap between his seeing the accused and his meeting the

police,  as  per  his  allegation.  It  makes the  statement  of  PW-5 highly

doubtful.

11. The next incriminating fact is the motive behind the crime as has

been established by the testimony of Kashmir Chand (PW-7). He stated

that on 8.10.2002 at about 8:00 p.m. he had gone to see Ram Leela in

Grain  Market,  Bhawanigarh  and  had  seen  the  five  accused  persons

conspiring with one another about finishing Ashok Kumar, because he

was not agreeing to remove his fruit Rehri from the front of the meat

shop of Bittu and Nitu. He also stated that he saw the accused beating

and sitting upon the deceased at about 2:30 a.m. at night. Even if the

motive  is  clearly  established,  the  fact  that  PW-7 was  admittedly  the

friend of  the deceased,  he ought to have warned the deceased about

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such plans of the accused. PW-7 stated that he had gone to see Ram

Leela and came back after 15-20 minutes to his house, had his meals

and later left the house at around 2:00 a.m. Neither he was named in

the FIR nor did he care to warn the deceased or his family members of

the conspiracy that he had overheard. This makes his conduct highly

unnatural and his presence doubtful at the place of incident. Thus, his

statement merely establishes the motive of the accused.

12. The prosecution failed to prove its case on one more aspect. The

prosecution alleged that the medical evidence corroborates their story.

But the testimony of Dr. Sanjeev Jindal (PW-1),  who did the medical

examination of the deceased, does not support this fact. He stated that

the internal injuries of the deceased were such that they may have been

caused  by  a  heavy  stone  kept  on  the  chest,  but  he  did  not  clearly

establish the same, in his opinion. He merely said that the possibility

cannot be ruled out. Also, if the incident occurred in the manner stated

in the FIR,  sufficient  quantity of  soil  should have been found in the

mouth  of  the  deceased  but  PW-1  has  categorically  stated  in  his

testimony that no soil was found in the mouth of the deceased. He had

merely found some dust sticking to the face of the deceased which could

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be caused by merely throwing the dead body on the ground or even on a

metalled road which is dust free.

13. All  the  above  circumstances  lead  to  the  inference  that  the

prosecution  has  failed  to  bring  home  its  case.  It  appears  that  the

testimonies  of  Narain  Dass  (PW-5)  and  Kashmir  Chand  (PW-7)  are

highly doubtful and do not inspire confidence. Though the motive has

been well established by the testimony of PW-7, but it alone cannot be

sufficient to convict the accused as it is not substantive evidence and is

merely  corroborative  in  nature.  Even  the  medical  evidence  fails  to

support the prosecution version.  Thus, the conviction of  the accused

cannot be sustained.

14. In the light of the above discussion, we find no grounds to interfere

with  the  judgment  passed  by  the  High  Court.  The  appeals  are,

accordingly, dismissed.

…....................................J                                                        (Pinaki Chandra Ghose)

…...................................J                                                            (R.K. Agrawal)

New Delhi; December 16, 2015  

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