REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1254-1255   OF 2011 (Arising out of S.L.P. (Crl.) Nos.7110-7111 of 2010)

Sunil Rai @ Paua & Ors. …….Appellants

Versus

Union Territory, Chandigarh …….Respondent  

J U D G M E N T

AFTAB ALAM, J.

1. Leave granted.

2. The three appellants are serving life sentences for committing murder  

of one Dile Ram. They were never on bail and have, thus, completed over  

ten years of incarceration. We, therefore, intended to grant leave in the case  

and release the appellants on bail. But, the counsel for the respondent stated  

that once released on bail  it  will be almost impossible to get hold of the  

appellants.  We,  accordingly,  proceeded  to  hear  the  case  on merits  at  the  

stage of special leave itself and at the conclusion of hearing we are dismayed

to  find  that  the  appellants  were  convicted  and  sentenced  on  completely  

insufficient evidence.  

3. The appellants  are migrant  workers who came to Chandigarh from  

different parts of the country in search of livelihood and were trying to eke  

out a living by working as rickshaw pullers. Appellant no.1, Sunil Rai alias  

Paua (accused no.1) had his money and clothes stolen by someone breaking  

open the lock of the box under the passenger seat of the rickshaw and the  

quarrel that took place, as a result of it, is said to be at the root of the alleged  

offence.  

4. According  to  the  prosecution  case,  on  March  29,  2001  at  about  

8:30 p.m. Arun Kumar (PW-14), Shailendra Kumar Pandey (PW-9) and one  

Jaspreet  Singh  alias  Chikna  were  present  near  the  GPO,  Sector  17,  

Chandigarh. Appellant no.2, Sher Bahadur alias Sheru (accused no.2) was  

also  present  there.  At  that  time  Sunil  Rai  and  appellant  no.3,  Ram  Lal  

(accused no.3) came there. Sunil Rai was agitated as his money and clothes  

were  stolen.  He  accused  Sher  Bahadur  of  committing  the  theft  and  an  

altercation took place between them. Sher Bahadur told Sunil Rai that he  

had not stolen his money or the other articles and it might have been the  

work of Dile Ram. He also told Sunil Rai that he would make Dile Ram  

return his money and clothes. It was at this stage that Dile Ram also arrived  

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at the scene coming from the side of Jagat Cinema. Sunil Rai caught hold of  

Dile  Ram  by  his  neck  and  asked  him  to  return  his  money  and  clothes  

otherwise he would kill him. A scuffle took place between Sunil Rai and  

Dile Ram but the latter got himself freed and ran away from there. The three  

accused went after him yelling and shouting that they would not spare him.  

12  hours  later,  at  about  8:30  in  the  morning  of  March  30,  2001,  an  

unidentified person was found lying in a badly injured condition at a spot  

near the local bus stand on the rear side of Neelam Cinema, situate at the  

sector  17 market.  There  were  injuries  on his  head and face.  At  the  spot  

where he lay there was a pouch of liquor (Ex. P32), a piece of brick (Ex.  

P1), a piece of stone (Ex. P2) and another piece of hard concrete. The blood  

flowing from the injuries had stained the earth at the spot, a sample of which  

was collected and produced in court as Ex. P3.

5. The injured was sent to hospital where he died. He was later identified  

as Dile Ram who, according to the prosecution, was last seen the previous  

evening,  fleeing away with the appellants  in pursuit  yelling and shouting  

threats at him.

6. The three accused were put on trial for the murder of Dile Ram before  

the  Sessions  Judge,  Chandigarh,  who  by  judgment  dated  June  12,  2006  

passed in Sessions Case no.02 of July 30, 2001 convicted all of them under  

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section 302 read with section 34 of the Penal Code and by orders dated June  

13 & 15, 2006, sentenced them to rigorous imprisonment for life and a fine  

of Rs.5,000/- each with the direction that in default of payment of fine they  

would undergo rigorous imprisonment for 1 year. The appellants went to the  

High Court  in  two separate  appeals,  one by  Sunil  Rai  (Criminal  Appeal  

no.580-DB of 2006) and the other by the other  two appellants  (Criminal  

Appeal no.523-DB of 2006). Both the appeals were heard together and were  

dismissed by a division bench of the High Court  by judgment and order  

dated March 5, 2008. The matter is now before this Court in appeal by grant  

of special leave.

7. From the ante mortem injuries on the body of Dile Ram as coming to  

light from the medical evidence and the objective findings at the spot where  

the body was found lying, it is quite clear that his death was homicidal. But,  

the question remains regarding the culpability of the three appellants.

8. It may be stated at the outset that there is no ocular evidence of the  

commission  of  the offence and the prosecution case  is  based entirely  on  

circumstantial  evidence.  There  are  four  circumstances  relied upon by the  

prosecution and accepted by the trial court and the High Court to hold the  

appellants guilty of the offence. These are as under:

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I.  The  deceased  was  last  seen  being  chased  by  the  appellants  

yelling  at  him  and  shouting  that  they  would  not  spare  him  

(paragraphs 20 and 21 of the High Court judgment).

II.  Sunil  Rai  made  an  extra  judicial  confession  before  PW-10,  

Chander Shekhar, President of the Rickshaw Pullers’ Union telling  

him that he along with Sher Bahadur and Ram Lal hit Dile Ram  

with brickbats and stones at about 9:00pm in the night between  

March 29 and 30,  2001,  causing injuries  to  him that  led to his  

death (paragraphs 22, 23 and 24 of the High Court judgment).

III. The recovery of the blood-stained jacket (Ex. P8) of Sunil Rai,  

appellant no.1 from under the seat of the rickshaw on the basis of  

the disclosure statement (Ex. PU) made by him and that was seized  

under  seizure  memo (Ex.  PV) (paragraph 27 of  the  High Court  

judgment).

IV. There was motive for the accused to beat and even kill Dile  

Ram (paragraph 25 of the High Court judgment).  

9. Let  us  now examine  the  evidences  in  support  of  each of  the  four  

circumstances enumerated above.

10.    On the issue of last seen, the prosecution examined Shailendra Kumar  

Pandey as PW-9, Arun Kumar as PW-14 and Harish Kumar Bansal as PW-

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15. Though Jaspreet Singh had also been cited earlier as one of the witnesses  

on this point, he was not examined before the Court.

11. PW-9, in course of his examination-in-chief  stated that as he (Dile  

Ram) was able to free himself from the hold of Sunil Rai:  

“Dile Ram ran towards  Jagat Theatre. Pauya and Sheru and  Ram Lal ran after Dile Ram.”   

In cross examination he stated as follows:

“Dile Ram went towards  Neelam Theatre whereas Sheru and  Pauya went towards Jagat theatre.”

In reply to a question by the court, he said:

“Chikna and Arun ran towards Jagat theatre. Pauya, Sheru and  Ram Lal ran after the deceased towards Neelam theatre.”  

                                                                          (emphasis added)

12. It needs to be recalled here that the spot where Dile Ram was found  

next morning lying in an injured condition, was near the local bus stand, on  

the rear side of Neelam Cinema. It has also come on record that the place  

where the quarrel took place between the accused and the Dile Ram and  

from where Dile Ram ran away, allegedly being chased by them, is at a large  

square and Neelam theatre and Jagat theatre are at its two opposite ends, at a  

distance  of  about  1km  from  each  other.  Sub-Inspector,  Ramesh  Chand  

Sharma, PW-17 in his deposition said:

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“… It is correct that if one comes from Jagat Theatre and goes  to  Neelam  Theatre  he  has  to  pass  police  post  of  Neelam  Chowki. Subway of Neelam is at a distance of 50 yards from  the  police  post.  Some one  always  remains  at  police  post  of  Neelam. After 8/9p.m. only 1/2 persons remain in the police  post. It is wrong to say that 12 persons remain deputed at the  police post….”

13. Thus, the first statement of PW-9 suggests that the deceased and the  

accused had gone in the direction completely opposite to where his body  

was found 12 hours later. His second statement is that the deceased and the  

accused had gone in opposite directions. His third statement, in answer to  

the court question, is of course that the deceased and the accused had gone in  

the direction of Neelam Cinema. It is also to be noted that in his first two  

statements he only mentions the names of accused nos.1 and 2, that is, Sunil  

Rai and Sher Bahadur but does not name Ram Lal whom he mentions only  

in his third statement in reply to the question by the court.  

14. The High Court has tried to explain the vacillating statements of PW-

9 by observing as follows:

“It appears that Shailender Kumar Pandey, PW9, inadvertently  made a statement that Dile Ram (deceased) ran towards Jagat  Cinema,  instead  of  Neelam Cinema  and  the  accused  chased  him. Such a minor discrepancy,  cannot be given any weight,  since a period of more than one year, and four months, from the  date  of  altercation,  referred  to  above,  had  lapsed  when  Shailender  Kumar  Pandey  PW9  appeared  in  the  court  as  a  witness.”

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15. To our  mind the vacillations  in  the  deposition  of  PW-9 cannot  be  

brushed aside as “minor discrepancy” especially when it is to form the basis  

for life sentences to three persons.  

16. With all the inconsistencies, on the issue of last seen PW-9 happens to  

be the best prosecution witness and the position becomes far worse when we  

come to the other two witnesses. PW-14 was first examined on January 14,  

2003. In course of his examination-in-chief, he stated as follows:

“… all of a sudden Diley Ram freed himself from the clutches  of Pauya and ran towards Neelam Cinema located in sector 17.  All the three accused i.e. Pauya alias Sunil Rai, Sheru and Ram  Lal also chased Diley Ram and as they were chasing they said  they will kill him….”

17. His cross examination did not take place on that date but it was done  

later on April 8, 2003. In cross examination he stated as follows:

“… The deceased was under the influence of liquor on the day  of  occurrence  and  some  others  had  also  taken  liquor.  It  is  correct that Dilay Ram was insisting for more liquor whereas  the others were saying that they will not consume liquor. Dilay  Ram was demanding money for buying more liquor. Then they  all  left  that  place.  Dilay Ram left  towards Neelam theatre  and the accused present  in  the court went  towards Jagat  theatre….”                                                                           (emphasis added)

18.     After his cross examination, the prosecution declared him ‘hostile’  

and filed  a  petition  seeking permission  to  cross  examine  him.  The court  

allowed the petition by order dated July 11, 2003 and granted permission to  

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the prosecution to cross examine PW-14, whereupon his cross examination  

by the prosecution took place on September 18, 2003. In this round he again  

went back to his earlier statement and stated as follows:

“… Dilay Ram ran towards Neelam Theatre and all the accused  present in the court today ran after him…

…  I  say  that  deceased  ran  towards  Neelam  theatre  and  the  accused followed him. It is correct that earlier I had mentioned  in my statement regarding Jagat Theatre.”

19. The only explanation for these contrary statements appears to be that  

each time during the gap between his depositions in court he came under the  

influence of the one or the other side and made the statements to please the  

respective sides. To us, he is not a trustworthy witness and we are unable to  

place any reliance on his testimony.  

20. PW-15 did not at all support the prosecution case on the point of last  

seen  and he  did  not  even  identify  the  accused  present  in  court.  He  was  

declared  hostile  by  the  prosecution.  There  is  one  thing,  however,  quite  

significant  about  PW-15.  In  cross  examination  by  the  defence,  it  was  

suggested that he was a tout and a stock witness for the police. In reply to  

the suggestion, he stated as under:  

“… It is wrong to say that I am a police tout. It is correct that I  have been shown as a witness in case FIR.52 dt.12.8.2K under  NDPS Act. It is correct that I also appeared as a prosecution  witness  registered  under  NDPS  Act  under  FIR  No.228  dt.15.5.2000.  It  is  correct  that  both  these  cases  were  

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investigated by S.I. Ramesh Chand. It is correct that the spot  where the injured was running does not have any light point. I  have not seen any person hitting the injured.”

21. Ramesh Chand Sharma, S.I. was the investigating officer of the case  

before the investigation was taken over by DSP Arjun Singh Jaggi, PW-20.  

Ramesh Chand Sharma was examined in the case as PW-17.

22. On a careful consideration of the evidences of PWs 9, 14 and 15, we  

are unable to see how the accused can be said to be connected with the  

commission of the offence on the basis of the quarrel that is said to have  

taken place in the evening of March 29, 2001 between Sunil Rai and Dile  

Ram. On the basis of the depositions of PWs 9 and 14 what can be said to  

have been established is only that while they were all present near the GPO,  

Sector 17, a quarrel and a scuffle had taken place between Sunil Rai and  

Dile  Ram whom he  accused  of  stealing  his  money and clothes.  But  the  

further story that when Dile Ram freed himself from the grip of Sunil Rai  

and ran away from there to-wards Neelam Cinema he was pursued by all the  

accused who were  shouting that  they would not  spare him is  completely  

unacceptable on the basis of their evidences. The failure to establish that part  

of  the  story  leaves  a  wide  gap  in  the  prosecution  case  and  weakens  it  

considerably.  

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23. Coming now, to the extra judicial confession said to have been made  

by Sunil Rai before Chander Shekhar, President, Rickshaw Pullers’ Union,  

Sunil  Rai,  in  his  statement  under  section  313  of  the  Code  of  Criminal  

Procedure,  of  course,  denied  having  made  any  confessional  statement.  

Chander Shekhar was examined as PW-10. In the examination-in-chief he  

stated that on April 1, Sunil Kumar went to him at about 3 in the afternoon  

and disclosed that he along with some others had committed a blunder by  

killing Dile Singh in course of a fight. He added that Sunil disclosed to him  

that Jaspreet Singh and Sher Bahadur had also joined him in assaulting the  

deceased.  

24. It is, thus, evident that in course of his examination-in-chief, he was  

trying to implicate Jaspreet Singh (who was not an accused in the case) and  

was trying to save Ram Lal who, according to the prosecution, was accused  

no.3.  

25. At that stage he was declared hostile and on being cross examined by  

the prosecution,  he said that  Sunil  had told him that  he along with Sher  

Bahadur and Ram Lal had caused injuries to Dile Ram by hitting him with  

brickbats and stones.  

26. In further cross examination by the defence, he admitted that Sunil  

was not known to him personally but all rickshaw pullers were known to  

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him as he was the President of one of the three Unions of Rickshaw Pullers  

of Chandigarh. In cross examination by the defence, he once again replaced  

Ram Lal by Jaspreet Singh and stated that Sunil Rai had disclosed to him  

that he along with Sher Bahadur and Jaspreet Singh had thrown stones at the  

deceased  causing injuries  to  him leading  to  his  death.  Evidently,  PW-10  

does not have much regard for truthfulness.

27. Admittedly, the alleged confessional statement was oral and it was not  

recorded in writing.  Admittedly,  Sunil  Rai had no personal  acquaintance,  

much  less  any  intimacy  with  PW-10.  An  extra  judicial  confessional  

statement  made  orally  before  a  person  with  whom  the  maker  of  the  

confession has no intimate relationship is not a very strong piece of evidence  

and in any event it can only be used for corroboration (See S. Arul Raja v.   

State of Tamil Nadu, (2010) 8 SCC 233 paragraphs 48-56). In this case with  

PW- 10 appearing particularly anxious to implicate Jaspreet Singh in place  

of  Ram Lal,  it  further  loses  any  credibility.  Further,  in  the  confessional  

statement allegedly made before PW-10 there is an inherent improbability.  

The “disclosure” made by Sunil Rai before PW-10 did not indicate the place  

where the assault on Dile Ram took place but it gave the time of the assault  

as  9.00pm.  In  the  evidence  of  PW-17  it  has  come  that  Neelam  Police  

Chowki is at a distance of 50 yards from the Neelam sub-way. The police  

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post is naturally manned twenty four hours even though, according to PW-

17, after 8-9 pm only one or two persons remain on the post. The occurrence  

took place on March 29. At the end of March, 9.00pm is not a very late hour  

when an occurrence of this kind taking place near the local bus stand and the  

parking place for rickshaws, behind a cinema theatre and at a distance of no  

more than 50 yards should normally go completely unnoticed by any one,  

including the policemen at the police post.

28. For  the  aforesaid  reasons  we  find  it  impossible  to  rely  upon  the  

evidence of PW-10 and, thus, goes the extra judicial oral confession by Sunil  

Rai.

29. This leaves us with the remaining two circumstances, that is to say,  

the recovery of the bloodstained jacket of Sunil Rai from under the seat of a  

rickshaw  and  motive.  According  to  the  report  of  the  Central  Forensic  

Science Laboratory (Ext. PA) the pair of pants, shirt, vest, and under-pants  

taken off from the body of Dile Ram were stained with human blood of  'B’  

group; the blood group of the sample of blood taken from the deceased was  

also ‘B’. And the stains on the jacket recovered from under the seat of the  

rickshaw were also of the same group of human blood. The report further  

indicated that though there were stains of human blood on the piece of brick  

and the sample of earth collected from the spot where the body of Dile Ram  

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was found it  was not possible to ascertain the blood group. The piece of  

concrete and the stone piece had no blood stains.  

30. No effort was made to take the blood sample of Sunil Rai and it is not  

known what is his blood group. Moreover, the jacket was recovered from a  

rickshaw standing out in the open where it was accessible to anyone. In the  

aforesaid circumstances, the recovery of the bloodstained jacket, on its own  

is a circumstance too fragile to bear the burden of the appellants’ conviction  

for murder.

31. Likewise, the fact that Sunil Rai had got his money and clothes stolen  

and he believed that Dile Ram had committed the theft, normally, cannot be  

said to make out sufficient motive for him to kill Dile Ram. In any event,  

motive alone can hardly be a ground for conviction.  

32. On the materials on record, there may be some suspicion against the  

accused but as is often said suspicion, howsoever, strong cannot take the  

place  of  proof.  We,  therefore,  find  and  hold  that  the  conviction  of  the  

appellants  is  based  on  completely  insufficient  evidence  and  is  wholly  

unsustainable.  

33. It is seen above that the quality of the prosecution evidence is too poor  

to satisfactorily establish any of the first three circumstances for holding the  

appellants  guilty  of  the  offence  of  murder.  As  none  of  the  three  

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circumstances were sufficiently proved, there is no question of taking them  

as links forming an unbroken chain that  would lead to the only possible  

inference regarding the appellant’s guilt. But before parting with the records  

of the case, we must sadly observe that so far as appellant nos.2 and 3 are  

concerned, it’s a case of no evidence inasmuch as apart from the first the  

remaining three circumstances are not relatable to them at all.  

34. The second circumstance in the case as  noted above was the extra  

judicial confession made by Sunil Rai, appellant no.1. It is seen above that  

PW-10, before whom the confession was allegedly made, tried his best to  

shield Ram Lal and to implicate in his place Jaspreet Singh. Nonetheless, the  

High Court deemed fit to use the extra judicial confessional statement made  

orally by Sunil Rai as substantive evidence not only against him but against  

appellant nos.2 and 3 as well. In our view, the High Court was completely  

wrong in using the alleged confessional statement made by Sunil Rai against  

appellant  nos.2  and  3.  For  taking  into  consideration  the  confessional  

statement of Sunil Rai against the other two appellants the High Court has  

relied upon two decisions of this Court. One in  Ammini v.  State of Kerala  

(1998) 2 SCC 301 and the other in  Prakash Dhawal Khairnar v.  State of   

Maharashtra,  (2002) 2 SCC 35. In our view, both the decisions have no  

application  to  the  facts  of  this  case.  In  both  cases  the  confessions  were  

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neither oral nor extra judicial.  In both cases confessional statements were  

made before a Magistrate and were reduced to writing. In Prakash Dhawal  

Khairnar, the Judicial Magistrate, first class, before whom the maker of the  

confession  was  produced  not  only  gave  him  the  due  warning  but  also  

allowed him 24 hours time to think over the matter. It was only after he was  

produced the following day that the Magistrate recorded his statement under  

section  164  of  the  Code  of  Criminal  Procedure.  In  Prakash  Dhawal  

Khairnar, the confessional statement was not retracted either.

35. In  Ammini,  the  facts  were  entirely  different  from the  present.  The  

accused  had  entered  into  a  conspiracy  in  pursuance  of  which  several  

unsuccessful attempts were earlier made before the victims were eventually  

killed. In the trial for the crime the accused were charged separately under  

section 120-B,  apart  from section 302 read with section  34 of  the  Penal  

Code.  One  of  the  charges  being  under  section  120-B,  the  confessional  

statement by one accused was used against the others on the basis of section  

10 of the Indian Evidence Act. In the present case there was no allegation of  

any conspiracy and there was no charge under section 120-B of the Penal  

Code.

36. In Prakash Dhawal Khairnar too, one of the charges against the two  

accused being father and son was under section 120-B of the Penal Code.  

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But the son, the maker of the confession was acquitted of the charge under  

section 120-B of the Penal Code. In that circumstance, the question arose  

whether the confessional statement of the son could be used against the other  

co-accused, his father for maintaining his conviction under section 302 of  

the  Penal  Code.  This  Court  pointed out  that  the conviction of  the  father  

under  section  302  of  the  Penal  Code  was  based  on  a  number  of  

circumstantial  evidences  that  were  independently  established  and  the  

confessional  statement  of the son was not used as a substantive piece of  

evidence. In paragraph 20 of the judgment, this Court observed as follows:

“20.  In  this  case,  the  High  Court  has  not  relied  upon  the  confessional  statement  as  a  substantive  piece  of  evidence  to  convict Accused 1. It has been used for lending assurance to the  proved  circumstances.  The  High  Court  held  that  the  proved  circumstances  would  not  involve  Accused  2  for  the  offence  punishable  under  Section  302  IPC  and  the  circumstantial  evidence  does  not  establish  that  there  was  any  common  intention  or  conspiracy  between  the  father  and  the  son  to  commit the offence….”

37. It is, thus, clear that the extra judicial confession of Sunil Rai could  

not be fastened upon the other two appellants for holding them guilty of  

murder  and  the  High  Court  was  quite  wrong  in  using  the  confessional  

statement of Sunil Rai as a circumstance against the other two appellants.  

38. Recovery  of  the  bloodstained  jacket  of  Sunil  Rai,  the  third  

circumstance  obviously  does  not  relate  to  appellant  nos.2  and  3  in  any  

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manner. Equally, the theft of the money and clothes of Sunil Rai would be  

no motive for the other two accused to assault Dile Ram, much less to kill  

him.

39. Thus, seen for any angle the conviction of the appellants cannot be  

sustained. The judgments and orders of the High Court and the trial court are  

completely unsustainable. The two judgments are set aside. The appellants  

are acquitted of the charges and are directed to be released forthwith unless  

required in connection with any other case.  

40. In the result the appeals are allowed.  

.........................................J  (AFTAB ALAM)

.........................................J  (R.M. LODHA)

New Delhi, July 4, 2011.

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