TEJINDER SINGH @ KAKA Vs STATE OF PUNJAB
Bench: CHANDRAMAULI KR. PRASAD,V. GOPALA GOWDA
Case number: Crl.A. No.-001279-001279 / 2008
Diary number: 24117 / 2006
Advocates: Vs
ARUN K. SINHA
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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.
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.
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.
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.
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.
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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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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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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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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