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                                 Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1697 OF 2009

SUKHPAL SINGH    ...APPELLANT(S)

                       VERSUS

STATE OF PUNJAB   ...RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. This appeal by special leave is directed

against  the  judgment  of  the  High  Court

dismissing  the  appeal  filed  by  the  appellant

against his conviction under Section 302 of the

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Indian  Penal  code  (hereinafter  referred  to  as

the  “IPC”)  and  sentencing  to  rigorous

imprisonment for life.

2. On  27/06/1993  upon  discovery  of  an

unidentified  body  near  a  canal  and  the  case

being  registered  and  upon  investigation  being

conducted the appellant along with another came

to  be  charge  sheeted  and  charged  with  the

commission  of  offences  under  Section  302  read

with  Section  34  of  the  IPC.   They  were  also

charged with the offence under Section 201 of

the IPC.  Before the trial Court the prosecution

examined PW1 to PW17.  The appellant examined

DW1  and  DW2.  The  trial  Court  convicted  the

appellant while it acquitted the co-accused.  As

already noticed the High Court has affirmed the

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conviction  and  sentence  of  the  accused-

appellant.   

3. We  heard  Ms.  Aishwarya  Bhati,  learned

Amicus Curiae and also learned counsel for the

respondent-State.

4. Learned Amicus Curiae contended before us

that the case is based only on circumstantial

evidence.  She pointed out that there are three

circumstances  which  were  alleged  against  the

appellant.  Firstly, it is contended that the

prosecution  laid  store  by  an  alleged  extra

judicial confession made by the appellant to PW

4 but she immediately pointed out that the said

extra judicial confession has not been accepted

either by the trial court or by the High Court.

Secondly, it is pointed out that the courts have

relied upon the theory of last seen.  The theory

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of last seen is sought to be proved through the

evidence of PW7, PW8 and PW9.  Thirdly, it is

pointed out that the prosecution has sought to

draw support from recovery of .38 caliber gun

apart from cartridges.  She would submit that no

reliance can be placed upon the same. Lastly,

she also contended that there is absolutely no

motive for the appellant to commit the murder of

the  deceased.   In  a  case  of  circumstantial

evidence,  motive  assumes  great  significance.

Absence  of  evidence  of  any  motive  with  the

appellant to do away with the deceased, is fatal

to the prosecution case, runs the argument.  

5. Per contra, learned counsel for the State

would  submit  that  the  circumstances  formed  a

complete chain and unerringly point to the guilt

of the appellant.  It is further pointed out

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that the van belonging to the deceased in which

the accused were also seen last by the witnesses

for  the  prosecution  was  recovered  at  the

instance of the appellant.  This is besides the

forensic  evidence  available  which  would  also

establish  that  this  is  a  case  of  the  murder

committed by none other than the appellant as

the forensic report would show that the bullet

which  was  recovered  from  the  body  of  the

deceased was fired from the gun recovered from

the appellant.  Recovery was of the gun and also

empty  cartridges  besides  live  cartridges.   An

attempt is made also to establish that there was

a fight between the deceased and the appellant

going by the injuries noted in the post-mortem

and this pointed to motive.  

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6. We would exclude the circumstance namely,

the extra judicial confession which has not been

given credence to by the courts below.  We will

thereafter  examine  firstly  whether  the

prosecution has been able to establish the last

seen theory.  The case of last seen theory has

been sought to be proved through the testimony

of PW7, PW8 and PW9.

7. P.W.7  is  the  brother  in  law  of  the

deceased.  He has deposed that the deceased was

having a taxi and on 26.6.1993 he along with the

deceased was present at the taxi stand.  Then

both the accused came there.  They asked the

deceased to take them in his taxi and he left

with them.  No doubt, in cross examination he

does say that 4 or 5 taxis in addition to their

two taxis were present at the taxi stand.  He is

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not able to give the names of other taxi drivers

or the registered numbers of their vehicles.  He

had a separate taxi.  There is nothing vital in

his  cross  examination  which  could  be  said  to

demolish his examination-in-chief.  

8. P.W.8  would  state  that  2½  years  or  3

years ago when he reached village Thandewala, he

found on the canal bank the van of the deceased

where both the accused were sitting in the van.

He was to go to Amritsar so he stopped the van.

He stated that the registration number of the

van was 3332.  He stated he knew the deceased

and both the accused.  He further stated that

the deceased was not present in the van.  He

asked the accused as to where the deceased was

as he wanted to hire his taxi, thereupon the

accused told him that they had some secret work

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so they did not bring the deceased with them.

He would say after 6 or 7 days he learnt that

dead body of the deceased was recovered.  He

made  a  statement  to  the  police.   In  cross

examination he also says that he did not say

before the police that he stopped the van as he

was to engage the van to go for holy dip at

Amritsar nor did he state to the police that he

was to hire the van of the deceased.  No doubt

there may be minor contradictions but we think

that his evidence has inspired the confidence of

two  courts.   PW9  is  an  employee  of  the  co-

operative Bank as a gunman.  He would say that

on 26/06/1993 he came on a scooter and when he

reached bus adda of village Jabelwali it started

raining, he stopped there.  The deceased came

there in his van from Muktsar side.  Both the

accused were sitting in the van.  On seeing him

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deceased brought the van near him as he was his

brother-in-law.  He asked him to accompany but

PW9 told him that he has scooter.  However, it

is deposed that the appellant asked the deceased

to hurry up as he was getting late.  Then the

van  left  towards  Kakapura.  After  the  rain

stopped, PW9 went in the same direction and he

saw the van of the deceased turning downstream

of the canal water of Rajasthan Canal. In cross

examination he would say that the canal was at a

distance  of  half  kilometer  from  Jabelwali  bus

stand.  Bus stand Jabelwali is at a distance of

8 or 10 kilometers from Muktsar.  He would say

that his duty hours in the Bank is from 10.00

a.m. to 5.00 p.m. as gunman.  The van of the

deceased he would say came to him at the bus

stand at about 9 a.m.or 10 a.m..  He was at a

distance of 10 to 15 killas from Jabelwali bus

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stand when it started raining.  He stood at the

bus stand for about 15-20 minutes.  He left the

bus stand on scooter 5 to 7 minutes after the

van left towards Kakapura.  He would say that he

did not know the relation except the appellant’s

wife.   It  would  be  noticed  that  there  is  no

suggestion in the cross examination however that

he does not know the appellant or that he has

never seen him before.

9. The aforesaid evidence, in our opinion,

which has been believed by the trial court as

well as by the High Court, can be relied upon by

us  to  conclude  that  the  prosecution  has

established that the appellant was indeed last

seen  with  the  deceased  before  his  death  and

recovery of the body.  The appellant admittedly

was  working  as  a  police  officer.   The  next

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circumstance which has been relied upon by the

courts is the recovery of his service revolver –

the  gun  along  with  empty  cartridges  and  live

cartridges.  The evidence of PW15- officer would

show  that  on  09.7.1993,  the  appellant  was

arrested along with co-accused.  The Maruti van

belonging to the deceased was also produced and

the  same  was  taken  into  possession  in  the

presence  of  Gurdev  Singh  and  Head  Constable

Surinder  Singh.   He  has  stated  that  the

appellant was interrogated.  He disclosed that

he concealed .38 bore revolver along with 3 live

cartridges  and  2  empty  cartridges  and

Rs.20,000/- cash in an iron box lying in his

house and same was hidden.  The statement was

attested by Gurdev Singh (Sarpanch) and Surinder

Singh.  A .38 bore revolver, 2 empty cartridges

and 3 live cartridges were recovered as per the

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statement from an iron box from the store of his

house.  The key was taken out by him from the

almirah  by  the  appellant.   The  revolver  and

cartridges  were  sealed  after  making  into

parcels.  They were taken into possession.  A

seal was prepared which is handed over after use

to Gurdev Singh.  It is also established from

the statement of PW15, the investigating officer

that  after  the  post-mortem,  a  bullet  was

produced before him.  No doubt, the bullet was

recovered  at  the  time  of  post-mortem  on

26.7.1993.  The  revolver  was  recovered  on

11.7.1993.   In  cross  examination  P.W.15  has

spoken about sending the revolver and bullet for

forensic  examination.   The  report  of  the

Forensic  Science  Laboratory  is  to  the  effect

that the bullet which was marked as B1 has been

fired  from  .38  bore  revolver  No.673.   This

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undoubtedly  would  establish  that  the  bullet

which resulted in the death of the deceased came

from  the  revolver  which  was  issued  to  the

appellant.   

10. Learned counsel for the appellant in the

light of this clearly incriminating circumstance

drew  our  attention  to  the  following  statement

given by the appellant in his statement under

Section 313 Cr.P.C.

“I am innocent.  I have been falsely

implicated.  I was suspended by S.S.P.

Faridkot  on  3.5.1993  and  was  sent  to

Police Lines, Faridkot, where I remained

present in the months of May and June

1993 throughout.  In May I deposited my

revolver and ammunition, because of my

suspension,  in  Police  Lines,  Faridkot.

On  28.6.1993  vide  report  No.3  in  the

Daily Diary I was detailed on duty to go

to the office of D.S.P. Moga, regarding

departmental enquiry.  When I returned

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in  the  evening,  police  of  P.S.  Sadar

Muktsar took me from the Police Lines.

They  also  collected  my  revolver  and

ammunition  from  the  officials  of  the

Police Lines, Faridkot.  I was detained

for some days in illegal custody and my

formal arrest was shown thereafter and

recovery of revolver and ammunition was

foisted  against  me.   Revolver  after

firing in the police station was sent to

Forensic Science Laboratory.  Bullet was

also foisted against me.”   

11. Apparently the version that is sought to

be  set  up  is  that  the  appellant  was  under

suspension,  and  therefore  the  appellant  had

surrendered his revolver and therefore the case

of the recovery of the gun and that the fatal

shot  was  fired  from  the  gun  should  not  be

believed.

12. There appears to be no evidence to show

however that the appellant was actually placed

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under suspension as is sought to be claimed by

him in the questioning under Section 313.  The

appellant has also not been able to draw our

attention  to  any  evidence  adduced  by  him  to

establish  that  he  was  in  fact  placed  under

suspension  so  as  to  prove  that  he  had

surrendered the gun at the police station prior

to the date of the incident.  It may be true

that the investigating officer when questioned

has stated that he does not know whether the

officer was suspended.  However, this was the

state  of  the  prosecution  evidence.  It  was

thereupon  incumbent  upon  the  appellant  to

establish the case through evidence which would

certainly have been available  had indeed been

placed  under  suspension.   In  the  absence  of

material to establish the case of suspension we

are  not  inclined  to  disturb  the  concurrent

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findings by the court which is based on evidence

which establishes that there was a recovery of

the gun along with 2 empty cartridges and 3 live

cartridges  on  the  statement  given  by  the

appellant.  Furthermore, as already noticed, the

evidence  establishes  that  the  bullet  found  in

the body of the deceased was fired from the gun

which is allotted to the appellant.  That apart

we  have  already  found  that  there  is  ample

evidence  to  show  that  the  appellant  was  last

seen with the deceased, again, a fact which is

established  on  the  basis  of  testimony  of

witnesses who have been found to be creditworthy

by two courts.  In an appeal maintained under

leave  under  Section  136  this  Court  would  not

ordinarily  go  into  the  credibility  of  the

witnesses  whose  testimony  has  inspired  the

confidence of the courts.

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13. The evidence of three witnesses relating to

last seen has been relied upon by two courts. It

may  be  true  that  there  may  be  certain  minor

contradictions.  The credibility of witnesses is

ordinarily not re-visited by this Court in an

appeal  by  special  leave.  That  apart  the

circumstance as to the recovery and what is most

important the report of the forensic laboratory

is  clinching.   The  report  of  the  forensic

laboratory reads as follows:

“One  point  .38  inch  jacketed  bullet marked B/1 contained in parcel ‘A’ has been fired from .38 inch revolver No.A- 673.”

14. We are not inclined to place any reliance

on appellant’s version that the gun was actually

surrendered by him and making use of the gun, a

shot  was  fired  and  he  has  been  implicated

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particularly as he has not proved that he has

been  placed  under  suspension.  Furthermore,  in

fact, P.W.15 has denied the allegation that the

bullet  was  sent  after  firing. The  only

inevitable conclusion we can reach is that the

gun was recovered from him and the bullet which

has been found to have caused the fatal injury

to the deceased and which was recovered from the

body of the deceased has been fired from the

appellant’s gun.

15. The last submission which we are called

upon to deal with is that there is no motive

established against the appellant for committing

murder.   It  is  undoubtedly  true  that  the

question of motive may assume significance in a

prosecution  case  based  on  circumstantial

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evidence.  But the question is whether in a case

of circumstantial evidence inability on the part

of  the  prosecution  to  establish  a  motive  is

fatal to the prosecution case.  We would think

that while it is true that if the prosecution

establishes a motive for the accused to commit a

crime  it  will  undoubtedly  strengthen  the

prosecution  version  based  on  circumstantial

evidence, but that is far cry from saying that

the absence of a motive for the commission of

the crime by the accused will irrespective of

other material available before the court by way

of  circumstantial  evidence  be  fatal  to  the

prosecution.  In such circumstances, on account

of the circumstances which stand established by

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evidence as discussed above, we find no merit in

the appeal and same shall stand dismissed.

………………………………………….J. (A.M. Khanwilkar)   

          ………………………………………………J.                            (K.M. Joseph)

New Delhi; February 12, 2019