STATE OF PUNJAB Vs BITTU & ANR. ETC.ETC.
Bench: PINAKI CHANDRA GHOSE,R.K. AGRAWAL
Case number: Crl.A. No.-000548-000551 / 2013
Diary number: 6113 / 2012
Advocates: KULDIP SINGH Vs
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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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