Tejinder Singh @ Kaka Vs State of Punjab

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1279 OF 2008

TEJINDER SINGH @ KAKA … APPELLANT Vs.

STATE OF PUNJAB … RESPONDENT

WITH CRIMINAL APPEAL NO. 1280 OF 2008 RAJINDER KUMAR VS. STATE OF PUNJAB WITH CRIMINAL APPEAL NO. 1281 OF 2008 BALWINDER SINGH AND ANR. VS. STATE OF PUNJAB WITH CRIMINAL APPEAL NO. 1282 OF 2008 SUNNY LAL PASWAN VS. STATE OF PUNJAB

J U D G M E N T

V. Gopala Gowda, J.

These Criminal Appeals are directed against the Judgment and

Order dated 05.06.2006 passed by the Punjab and Haryana High Court at

Chandigarh in Criminal Appeal No 716-DB of 2004. The Punjab and

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Haryana High Court affirmed the conviction and sentence of the accused for

offences punishable under Sections 302, 376(2)(g), 148, 201,404 read with

Section 34 of the Indian Penal Code with different sentences of

imprisonment which will be referred to in the later portion of the judgment

to run concurrently and fine imposed upon them. The same is under

challenge in these appeals by the appellants urging various grounds.

However, the High Court acquitted the appellants of the charges framed

under Sections 3 and 4 of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989.

2. The appellants have prayed for allowing the appeals by setting aside

the impugned judgment of the High Court and to acquit them from all the

charges urging various facts and grounds in support of the questions of law

framed in these appeals.

For proper appreciation of rival factual and legal submissions made

by the learned counsel for the parties the relevant facts in relation to the

prosecution case are briefly stated as under:

3. On 25.05.2000, FIR No. 73 was lodged at Police Station Banga,

Nawanshahar on the basis of statement of Nago Ram, S/o Munshi Ram who

is relative of Seeso, the deceased, for offences under Sections 302, 376(2)

(g), 148, 201, 404 read with Section 34 IPC alleging that on 24.05.2000 at

about 9.00 a.m. the deceased went to the field to bring fodder and when she

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did not return home till afternoon, the informant along with family members

of the deceased and villagers started searching her but they could not gather

any information. It was alleged that on 25.05.2000 at 8.00 a.m., the

informant along with other people went to the sugarcane field searching for

the deceased where they found a fresh pit dug filled back with earth inside

which the dead body was lying buried in the soil covered with a palli. It was

further alleged that the gold ear rings, silver bangles and anklets from the

dead body of the deceased were found missing. It was alleged by the

informant that Sunny Lal Paswan, the owner of the land along with three-

four persons after committing the murder buried the body of the deceased.

4. On the basis of the registration of the said FIR the case was

investigated and report under Section 173 of the Code of Criminal Procedure

was filed before the committal court and thereafter it has committed the case

to the learned Additional Sessions Judge, Nawanshahar and the case went

for trial as the accused pleaded not guilty of charges and prayed to try them

for the charges. The charges were framed for offences punishable under

Sections 302, 376(2)(g), 148, 201, 404 read with Section 34 IPC and also

under Sections 3 and 4 of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989. The prosecution witnesses PW-1 to

PW-15 were examined and the statement of evidence of the witnesses were

recorded by the learned Addl. Sessions Judge. The learned Additional

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Sessions Court has convicted the accused with various sentences for

different offences along with fine as has been set out in detail in the later part

of the judgment. The same is affirmed by the High Court by passing the

impugned judgment. The correctness of the same is challenged in these

appeals by the appellants by raising certain legal questions and urging

grounds in support of the same.

5. It is contended by the learned senior counsel for the appellant Mr.

K.T.S. Tulsi that the High Court ignored the vital aspect of the case, namely,

PW-9 Niranjan Ram, the so-called sole eye witness of the alleged offences

who has categorically stated in his evidence that on 24.05.2000 at about

10.30 a.m. in order to ease himself, he had gone towards the eastern side of

the village where a fair was being held. In order to get his hands washed he

had gone towards the tube well, where he heard some shrieks, and found that

Seeso, wife of Bhajan Ram was lying on the ground and accused Gurdeep

Singh was holding her arms, accused Balwinder Singh and Rajinder Kumar

had lifted the legs of Seeso upwards and accused Harnek Singh was

committing rape on her. Accused Sunny Lal and Harnek were holding the

arms of Seeso. Thereafter accused Gurdeep Singh gave a Kassi blow on the

neck of Seeso. On seeing this he shrieked. On seeing PW-9, the accused

Gurdeep Singh chased him with a Kassi in his hand and threatened him that

in case he discloses the incident in the village, he and his family will be dealt

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with the same manner. Out of fear because of the threat having been inflicted

by Gurdeep Singh, PW-9 did not disclose the incident to any one of the

villagers or to the family members of the deceased.

6. It is urged by Mr. K.T.S. Tulsi, the learned senior counsel for the

appellant in Crl.A. No.1279 of 2008 and Mr. Fakhruddin, the learned senior

counsel who is appearing as amicus curiae in the connected appeals that the

statement of evidence of the witnesses narrating the offences said to have

been committed by the appellants is most unnatural and improbable to

believe. This aspect of the matter in relation to these appellants is not

properly appreciated by the High Court while affirming the conviction and

sentences imposed upon them by the learned Additional Sessions judge. The

learned senior counsel Mr. Tulsi submits that the High Court placing reliance

upon the testimony of PW-9 by extracting his brief statement of evidence in

the impugned judgment has concurred with the conviction and sentences

imposed upon the appellant by the Additional Sessions judge and the same is

erroneous on the part of the High Court. Hence, he submits that the same is

liable to be set aside.

7. It is further contended by the learned senior counsel that the High

Court has erroneously placed reliance upon the testimony of PW-8 Chet

Ram, the brother-in- law of the deceased, who is not even an eye-witness to

the incident. PW-8 deposed in his evidence that he saw accused Gurdeep

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Singh, Harnek Singh, Balwinder Singh, Tejinder Singh and Sunny Lal

Paswan carrying some heavy material in a palli and they had placed the

same in the sugarcane field. Accused Tejinder Singh dug a pit in the field

with the help of a spade and buried the material underneath the earth. On his

asking them as to what they had done, accused Gurdeep Singh told that he

will also be treated in the same manner and uttered the words “Kutia

Chamara Tera bhi iho hal karange”. Thereafter the accused Gurdeep Singh

with a Kassi in his hand, ran towards him. Out of fear, he ran away towards

the village.

8. The learned senior counsel further submits that even presuming the

aforesaid witness’s statement to be true, it is very unusual and unnatural on

his part being the brother-in-law of the deceased in not informing the incident

either to the family members or to the police. This aspect of the matter has

not been considered by the High Court thereby, it has overlooked the major

discrepancy in the statements of witnesses between PW-8 and PW-9, on

whose evidence the whole prosecution case is based. PW-8 has stated in his

evidence that appellant Tejinder Singh started digging a pit while PW-9 has

categorically deposed in his evidence that accused Tejinder Singh was not

there at that time.

9. The deposition of the aforesaid witness creates a grave suspicion

not only regarding the appellant Tejinder Singh being part of the conspiracy

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to commit offences but also his presence at the place of occurrence. Non

consideration of this major discrepancy in the evidence of the aforesaid

witness both by the Trial Court as well as the High Court, has rendered the

findings on the charges erroneous in law and therefore the same is liable to

be set aside. Further, the High Court has failed to re-appreciate the

evidence of PW-10 Krishna, who has in her deposition, stated the names of

the accused persons but she has not named the appellant Tejinder Singh’s

involvement in committing offences as alleged, which casts a major

suspicion in the statement of PW-8 Chet Ram.

10. It is further contended by the learned senior counsel appearing on

behalf of the appellant Tejinder Singh in Crl.A. No. 1279 of 2008 that the

High Court did not follow the well established principle of law that in appeal

against the conviction, the appellate court has the duty to appreciate the

evidence on record and benefit of reasonable doubt has to be given to the

accused which has not been done by it. In support of this submission,

reliance is placed upon the decision of this Court in the case of

T.Subramanium v. State of Tamil Nadu 1 . Further, elaborating his

submission, he has urged that if two views are possible from the very same

evidence, it cannot be said that the prosecution had proved its case beyond

reasonable doubt. There is a grave doubt regarding the presence of appellant

1 (2006) 1 SCC 401

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Tejinder Singh at the place of occurrence, which goes to the root of the

prosecution case as far as the role of the appellant is concerned in

committing offences as alleged.

11. The learned senior counsel has further contended that the High

Court has erroneously accepted the evidence of another witness Bhupinder

Singh PW-7, (the erstwhile Sarpanch) treating him as a credible witness

ignoring the inherent improbabilities in his statement of evidence regarding

the alleged extra judicial confession said to have been made to him by the

three accused persons other than the appellant in Crl.A. No.1279 of 2008

and the trial court and the High Court having placed reliance upon the same

recorded the finding that the charge against the said appellant is proved and

conviction and sentence imposed upon him for the alleged offence. This

finding of the courts below is bad in law and is liable to be set aside.

According to the deposition of PW-7, who has deposed that on

28.5.2000 accused Gurdeep Singh, Harnek Singh and Sunny Lal Paswan

made a disclosure statement to him describing the whole incident. He has

disclosed the same to the police after 16 days of the alleged disclosure

statements said to have made to him by the said accused and he had handed

over the accused to police custody on 12.06.2000. The reason regarding the

delay of 16 days given by him was that he was busy with some work and

therefore, there was an inordinate delay of 16 days in informing the incident

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to the police remains unsatisfactory on the part of the said witness to whom

the extra judicial confession alleged to have been made by the co-accused.

This renders the conduct of PW-7 doubtful and the content of his testimony

suspicious in nature. Further, he being the Sarpanch of the village instead of

taking instant action against the accused persons who alleged to have

committed rape, murder and destroyed the evidence, informed the police

after a lapse of 16 days. This cannot be believed by this Court.

12. It is further contended by him that it is pertinent to mention that the

urgency of the work with which he was busy was nowhere explained by him.

Learned senior counsel placed reliance upon judgment of this Court in

Dwarkadas Gehanmal Vs. State of Gujarat 2 in support of his legal

submission that if the conduct of the witness is inconsistent with the conduct

of an ordinary human being then his testimony has no credence for

acceptance. Paragraph 14 of Dwarkadas Gehanmal’s case (supra) reads as

under:

“14. …....Deva Ram PW-4 would not have waited for five days to disclose the alleged confession made by the appellant to him but on the contrary, he would have either on the same evening gone to the police station to lodge a complaint on the basis of the confessional statement of appellant and/or would have gone to the house of Noorbhai to inform the family members about the confessional statement of the appellant.....”

Therefore, the learned senior counsel contends that the observations made in

2 (1999) 1 SCC 57

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the above referred case would support the case of the appellants herein.

Learned senior counsel has placed reliance on various other

judgments of this Court wherein extra judicial confession was made.

Relevant paragraphs will be extracted in the appropriate reasoning portion of

this judgment to appreciate the legal submission made by him and to set

aside the impugned judgment and to pass an order of acquittal.

13. The learned senior counsel Mr. Tulsi has relied upon the following

cases in support of his legal submissions contending that the same would

with all fours be applicable to the case in hand, namely, Pancho Vs. State

of Haryana3, Sahadevan & Anr. Vs. State of Tamil Nadu4 and Sukhram

Vs. State of Maharashtra5.

14. The learned senior counsel, Mr. Fakhruddin who is appearing for

the appellants in the connected appeals has also made his submissions urging

the similar grounds as urged by Mr. Tulsi, the learned senior counsel for the

appellant in Crl.A. No.1279 of 2008 regarding the evidence of PW-7 in

relation to the extra judicial confessional statement alleged to have made to

him by some of the accused. Further, he has invited our attention to the

depositions of prosecution witnesses to show that the findings recorded

against the accused by the courts below is not only erroneous but also suffer

3 (2011) 10 SCC 165 4 (2012) 6 SCC 403 5 (2007) 7 SCC 502

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from error in law and therefore the same is liable to be set aside by allowing

the appeals.

15. On the other hand, Mr. Sanchar Anand, the learned Additional

Advocate General for the State of Punjab, has sought to justify the findings

and reasons recorded on the charges framed against the appellants herein by

the courts below. The trial court being the court of original jurisdiction, in

exercise of its power, appreciated the evidence on record and answered the

charges levelled against the appellants and other accused holding that they

are guilty of the offences committed against the deceased and accordingly

after hearing them, the learned Sessions judge has imposed sentence of

imprisonment upon the accused for different offences as mentioned in the

table which is extracted hereunder:

Name of convict

Under Section Sentence

Gurdeep Singh

302 IPC

376(2)(g)IPC

506 IPC

Life imprisonment and fine of Rs.10,000/- in default further RI for one year.

RI for 5 years and to pay fine of Rs.5000/- or in default further RI for 6 months.

Rajinder Kumar

302 IPC

376(2)(g)IPC

404 IPC

Life imprisonment and fine of Rs.10,000/- in default further RI for one year.

RI for 1 year and to pay fine of Rs.1000/- or in default further RI for 1 month.

Harnek Singh alias Naka

302 IPC

376(2)(g)IPC

Life imprisonment and fine of Rs.10,000/- in default further RI for one year.

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404 IPC

RI for 1 year and to pay fine of Rs.1000/- or in default further RI for 1 month.

Balwinder Singh alias Binder

302 IPC

376(2)(g)IPC

404 IPC

Life imprisonment and fine of Rs.10,000/- in default further RI for one year.

RI for 1 year and to pay fine of Rs.1000/- or in default further RI for 1 month.

Sunny Lal Paswan

302 IPC

376(2)(g)IPC

404 IPC

Life imprisonment and fine of Rs.10,000/- in default further RI for one year.

RI for 1 year and to pay fine of Rs.1000/- or in default further RI for 1 month.

Tejinder Singh alias Kaka

201 IPC RI for 7 years and to pay a fine of Rs.5000/- or in default further RI for 6 months

The sentences of imprisonment shall, however, run concurrently .

16. It is further submitted by the learned Additional Advocate General

that the correctness of the findings and reasons in the case recorded by the

learned sessions judge in convicting and sentencing the appellants/accused

has been examined by the High Court in exercise of its jurisdiction after

extracting the testimony of the witnesses in the impugned judgment and

applying its mind in the backdrop of legal grounds urged in the appeal before

the High Court. The High Court has affirmed the conviction and sentence by

recording the concurrent findings of fact on the charges by assigning valid

and cogent reasons. Therefore, the same does not call for interference by

this Court in exercise of its jurisdiction under Article 136 of the Constitution

of India.

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17. With reference to the above factual and legal contentions urged on

behalf of the parties, this court is required to examine as to whether the

concurrent impugned findings on the charges levelled against the appellants

in the impugned judgment are erroneous and require interference by this

Court and whether the conviction and sentence imposed on the appellants on

the basis of the evidence of PW-7, PW-8 and PW-9 and other prosecution

witnesses is legal and valid and requires interference?

18. The aforesaid points are required to be answered in favour of the

appellants for the following reasons:

In so far as the appellant Tejinder Singh is concerned, the charge is

under Section 201 IPC. He has been convicted and sentenced with rigorous

imprisonment for 7 years and a fine of Rs.5000/- or in default, to undergo a

further rigorous imprisonment for 6 months. This aspect of the matter is

considered by us in the backdrop of factual and legal contentions urged by

learned senior counsel Mr. Tulsi.

19. It is pertinent to refer to the case of Sukhram (supra) in order to

appreciate the scope of Section 201 IPC. The relevant paragraphs will be

extracted to appreciate his contentions in the reasoning portion of the

judgment.

20. As could be seen from the evidence of PW-8 and PW-9, there is

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major discrepancy between their statements of evidence. PW-8 Chet Ram

has stated in his evidence that the appellant Tejinder Singh started digging a

pit with spade in the sugarcane field, whereas PW-9 has stated in his

evidence that the said appellant was not present at that time. In view of the

major discrepancy and contradiction between the statements of one witness

and the other, it not only creates a grave suspicion regarding the said

appellant being part of the offence but also makes his presence doubtful at

the place of occurrence. Therefore the ground urged in this regard by the

learned senior counsel that the learned sessions judge in placing reliance

upon the testimony of the said witnesses and recording the finding against

the above appellant on the charges and passing an order of conviction and

sentence which is affirmed by the High Court is without proper appreciation

of the major discrepancy in the statements of the above named witnesses

regarding the presence of the aforesaid appellant at the place of occurrence.

The courts below have also failed to take into consideration the evidence of

PW-10 Krishna, wherein she had deposed in the case that on 24.5.2000 at

about 8 a.m. she along with Nimmo had gone to take fodder from the fields.

At about 9.00 a.m. when they were coming back, they found that Sunny Lal

was watering the fields. In the meantime, the deceased also entered the fields

having a jute cloth in her hands. The accused Binder and Kaka were seen

going towards the tube well. Accused Gurdeep Singh and Harnek Singh

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were also seen going on the scooter towards the tube well side, but she has

not named the appellant Tejinder Singh. This creates a major discrepancy in

the statements of evidence of PW-8 and PW-9 regarding the participation of

this appellant in committing offence as alleged against him.

21. Moreover, there is nothing substantive and positive evidence placed

on record against the aforesaid appellant by the prosecution to prove its case

against him. Therefore, the reliance placed in Sukhram’s case (supra)

regarding legal proposition should be applied to the case in hand. It cannot

be said that the prosecution has proved its case beyond reasonable doubt.

The benefit of doubt should have been extended to Tej inder Singh in the

impugned judgment by the High Court while re-appreciating the evidence on

record in exercise of its jurisdiction as it has failed to notice that the ratio

laid down at para 18 in the case of Sukhram referred to supra that to

constitute an offence under Section 201 IPC the following four ingredients

viz. (i) to (iv) have to be established:-

“18. …………To bring home an offence under Section 201 IPC, the ingredients to be established are: (i) committal of an offence; (ii) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been com- mitted; (iii) person charged with the said offence should have caused disappearance of evidence; and (iv) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given informa- tion respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It

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hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.

19. In Palvinder Kaur v. State of Punjab this Court had said that in order to establish the charge under Section 201 IPC, it is es- sential to prove that an offence has been committed; that the ac- cused knew or had reason to believe that such offence had been committed; with requisite knowledge and with the intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave false information respecting such of- fence knowing or having reason to believe the same to be false. It was observed that the court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be. (Also see Suleman Rahiman Mulani v. State of Ma- harashtra, Nathu v. State of U.P, V.L. Tresa v. State of Kerala.)”

22. For the reasons stated supra we have to record a finding in this

judgment that there is major discrepancy in the testimony of witnesses PW-8

and PW-9 and also registration of FIR on the basis of information furnished

by the informant. The FIR was registered, investigation was made and

charge sheet was filed and the appellant was tried for the charges as he had

pleaded not guilty and the Sessions Court convicted and sentenced him for

the offence. This finding is erroneous in law for the reason that the statement

of evidence of the prosecution witnesses referred to supra has raised serious

suspicion and doubt. Therefore, the same must be extended to the other

appellants.

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23. Further, the learned senior counsel has rightly placed reliance upon

the testimony of PW-7 to whom, according to him, the accused persons

namely, Gurdeep Singh, Harnek Singh and Sunny Lal Paswan, co-accused,

made a disclosure statement describing the whole incident to him on

12.06.2000 who has neither recorded the alleged extra judicial confession

nor made the disclosure of the said statement within reasonable time but 16

days to disclose the extra judicial confessions made by the accused persons

to inform to the jurisdictional police. The delay in informing the police

regarding the extra judicial confessional statement alleged to have made to

him by some of the accused has not been explained by PW-7 and the reason

sought to be given by him for non disclosure of the same to the police cannot

be accepted by this Court as it is not natural and also not satisfactory.

Further, the learned senior counsel Mr. Tulsi has rightly placed reliance upon

the judgment of this Court in Dwarkadas Gehanmal's case (supra) with

regard to the conduct of the witness in the said case which is inconsistent

with the conduct of an ordinary human being. The observations made in the

abovementioned case with all fours applicable to the facts situations of the

case in hand, that if extra judicial confessional statement was made by the

accused as stated by him in his statement before the trial court were to be

true, it was his duty to disclose the same immediately to the police or to the

relatives of the deceased. That has not been done by him and therefore his

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evidence is not believable.

24. The extra judicial confession is a weak form of evidence and based

on such evidence no conviction and sentence can be imposed upon the

appellants and other accused. In support of this proposition, the relevant

paragraphs of Pancho’s case are extracted hereunder:

“16. The extra-judicial confession made by A-1, Pratham is the main plank of the prosecution case. It is true that an extra-judi- cial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other ev- idence on record. In Gopal Sah v. State of Bihar this Court while dealing with an extra-judicial confession held that an ex- tra-judicial confession is on the face of it, a weak evidence and the courts are reluctant, in the absence of a chain of cogent cir- cumstances, to rely on it for the purpose of recording a convic- tion. We must, therefore, first ascertain whether the extra-judicial confession of A-1, Pratham inspires confidence and then find out whether there are other cogent circumstances on record to sup- port it.” ……………..

25. This Court further noted that: (Kashmira Singh case, AIR p. 160, para 10)

“10. … cases may arise where the Judge is not pre- pared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession, he would not be pre- pared to accept.”

…………….

27. This Court in Haricharan case further observed that Section 30 merely enables the court to take the confession into account. It is not obligatory on the court to take the confession into account.

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This Court reiterated that a confession cannot be treated as sub- stantive evidence against a co-accused. Where the prosecution re- lies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the con- fession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right.”

Further, relevant paragraphs from Sahadevan’s case are extracted

hereunder:

“14. It is a settled principle of criminal jurisprudence that extra-ju- dicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a con- fession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.

……………..

16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the ve- racity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused:

(i) The extra-judicial confession is weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence.

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(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecu- tion evidence. (v) For an extra-judicial confession to be the basis of con- viction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.”

25. Reliance placed upon the decisions of this Court in the case of

Sahadevan’s case (supra) supports the case of the appellant herein. Hence,

the reliance placed upon the evidence of PW-7 by both the Additional

sessions judge and the High Court to convict the appellant and sentencing

him for the offence under Section 201 IPC is erroneous in law for the reason

that they have not appreciated the testimony of PW-7 in the backdrop of the

legal principles laid down by this Court in the above referred cases on the

question of extra judicial confession said to have been made by some of the

accused to him. Non disclosure of the same either on the same day or within

reasonable time either to the police or to the family members of the

deceased does not inspire confidence to be accepted as testimony to sustain

the conviction and sentence. After 16 days he had disclosed it to the

jurisdictional police which would clearly go to show that the conduct of the

said witness is unnatural and improbable to believe and his conduct is not

that of an ordinary human being.

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26. Therefore, the conviction and sentence imposed upon the appellant

in Crl. A. No.1279 of 2008 by placing reliance on the testimony of PW-7

along with testimony of PW-8 and PW-9 suffer from major discrepancy and

therefore, the appeal in so far as Tejinder Singh is concerned must succeed.

27. In so far as the other appellants in connected appeals are concerned,

the sessions court after placing reliance upon the evidence of PW-7, PW-8

and PW-9 has recorded the findings on charges against them, which is

wholly untenable in law. Neither the learned additional sessions judge nor

the High Court has examined their testimony properly by re-appreciating the

same to record the findings on the charges. The narration of the alleged

offences against the appellants and other accused by the prosecution

witnesses is most unnatural and unbelievable to convict and sentence them.

The courts below should have appreciated the evidence on record properly

and they should not have believed the statement of evidence of PW-8 for the

reason that neither he has disclosed the alleged offences said to have been

committed by the appellant and other accused nor did he depose before the

trial court or to anyone of the villagers. The explanation given by him

regarding the non disclosure of the alleged offences said to have committed

by the appellants and other accused that he was held out of fear and

therefore, he did not disclose the incident to anyone of the villagers cannot

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be accepted as it is unnatural. Therefore, the evidence of PW-8 cannot be

believed by this Court. The testimonies of PW-8 and PW-9 would clearly go

to show that there is a discrepancy regarding the narration of the offences

said to have been committed by the accused. Therefore, the courts below

should not have placed reliance on the evidence of PW-8 and PW-9 and

recorded the finding that the charges levelled against the appellant/accused

were proved. Both the courts below have committed serious error in placing

reliance upon the untrustworthy testimonies of PW-8 and PW-9 and passing

an order of conviction and sentence against them.

28. Further, the evidence of the other witness namely, PW-10 who

deposed that on 24.5.2000 at about 8.00 a.m., she along with Nimmo had

gone to bring fodder from the fields. At about 9.00. a.m. when they were

coming back, they found that Sunny Lal was watering the fields. In the

meanwhile she saw deceased Seeso also entered into the fields having jute

cloth in her hands. And after sometime she saw the other accused Binder and

Kaka going towards the tube well side. Thus, the offence alleged to have

been committed by the said accused also cannot be accepted by us. Further

the reliance placed by the courts below on the evidence of PW-7, the

erstwhile Sarpanch of the village panchayat regarding the extra judicial

confession said to have been made to him by some of the accused referred to

supra should not have been accepted by the courts below. In this regard, we

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Crl A. No. 1279 of 2008

have already recorded our reasons and findings with reference to the case

law of this Court while considering the case of Tejinder Singh, the appellant

in Crl.A. No.1279 of 2008 in the earlier portion of this judgment. The same

reasons hold good to the case of these appellants also. Further, the trial

court has committed grave error in giving credence to improbable and

unnatural evidence of PW-7 regarding extra judicial confession as he has

taken 16 days to inform the police. The conviction of the appellants/

accused for the alleged offence on the basis of evidence of the above

prosecution witnesses is not only erroneous in law but also suffers from error

in law and therefore, the same is liable to be set aside by allowing the

connected appeals also.

29. Further, the post mortem examination conducted by Board of

Doctors has noticed the following injuries on the dead body of Seeso which

are relevant for the case:

“(a) Incised wound 14 x 3 cm x 5 cm deep, on the left side of face and neck, horizontally placed on the lateral apsect of face and neck, anterior and was 8 cm from mid-line of face and 7 cm below the left eye-brow, clots were present in the vicinity of the wound. The internal juglar vein and external carotid artery were cut. Retraction of edges of the wound were seen. ……….

(h) There was no external mark of injury, labia, majora and minor were healthy. No blood or discharge, slides 1 and 3 were prepared from the intoritis. Swabs 5 and 7 were prepared. Per speculum examination showed no mark of injury on the vagina, cervix was normal and were sent to the Chemical examiner, Patiala for semen analysis.”

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Crl A. No. 1279 of 2008

The cause of death as per the opinion of the doctors was shock and

haemorrhage due to injury No. (a) which was on the face and neck and was

sufficient to cause death in the ordinary course of nature.

30. In our considered view, after going through the deposition of the

prosecution witnesses from the original record of the trial court, we are

satisfied that the case of the prosecution against the appellants/accused on

the charges creates suspicion and doubt in the absence of legal evidence on

record and therefore the same should enure to the benefit of accused for their

acquittal.

31. The courts below have convicted and sentenced the appellants on

the charges framed against them based on the circumstantial evidence, even

though the chain of events are not proved by the prosecution to bring home

the appellants/accused guilt on the charges leveled against them. The

concurrent finding recorded by the High Court on the charges is opposed to

the legal principles laid down in this regard by this Court.

32. We have examined the entire case in relation to these appellants and

have come to the conclusion that there is no material evidence on record to

convict and sentence the appellants. For the foregoing reasons, we accept

the case of the appellants in the connected appeals. Accordingly, their

appeals are also allowed and conviction and sentence are set aside and they

are directed to be released forthwith if they are not required in any other

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Crl A. No. 1279 of 2008

case.

33. The other accused, viz. Gurdeep Singh who has not filed appeal

before this Court challenging the impugned judgment and who has also been

convicted and sentenced to undergo imprisonment as awarded and imposed

by the learned Additional Sessions Judge and affirmed by the High Court,

we, in exercise of jurisdiction of this Court under Article 142 of the

Constitution, extend the same benefit to him also and he is also directed to

be released forthwith if he is not required in any other case.

34. For the foregoing reasons, all the appeals are allowed.

35. The bail bonds of the appellant-Tejinder Singh, who is on bail, are

hereby discharged.

…...………………………………J. [CHANDRAMAULI KR. PRASAD]

………………………………..…J. [V. GOPALA GOWDA]

New Delhi, April 11, 2013.

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TEJINDER SINGH @ KAKA Vs STATE OF PUNJAB

TEJINDER SINGH @ KAKA Vs STATE OF PUNJAB