Pawan Kumar vs State Of Haryana

After hearing learned counsel for the parties, we have allowed the appeal,

set aside conviction and sentence of the appellant and accused Balwinder @

Binder and acquitted them of all the charges by order dictated today in Court. As

the signature on the order may take some time and since it is a question of liberty

of citizens, the Registry is directed to issue the release order to the effect that the

aforesaid two accused persons who are in custody be released forthwith, if not

required in connection with any other case.

…………………………..J.

[B.N. AGRAWAL]

………………………….J.

[B.N. SRIKRISHNA]

NEW DELHI,

JULY 23, 2003.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 62 OF 2003

Pawan Kumar ………..Appellant

Versus

State of Haryana ………Respondent

O R D E R

Heard learned counsel for the parties.

The sole appellant along with accused Balwinder Singh @ Binder

was convicted by the trial court under Section 302 read with Section 34 of the

Indian Penal Code and sentenced to undergo imprisonment for life. On appeal

being preferred by the convicted persons, the High Court of Punjab and Haryana

has confirmed their conviction and sentence.

The prosecution case, in short, is that on 9th July, 1994, the

accused persons approached one Satish Kumar (PW 10), incharge of the Golden

Taxi Stand, Amritsar for hiring a taxi from that place for going to Bhatinda and

they boarded the taxi which was driven by one Shamsher Singh alias Shera and

they were having with them an unknown girl. On the next day, i.e., on 10th July,

1994, around 8.00/8.30 a.m., when Mahavir Singh (PW 6), owner of Saharan

Hotel situated at Dabwali, came to his hotel, the waiter-Vijay Kumar is said to

have told him that on that day at about 1.15 a.m., three customers came to the

hotel in a Maruti car and they were allotted room no. 5 and at about 4.30 a.m.,

two of them went away saying to Vijay that their uncle, i.e., the driver was

sleeping inside the room and in case he required anything, the hotel staff should

supply him the same and they will be returning after some time but never

returned. At about 11.00 or 11.30 a.m., due to failure of power supply, Mahavir

Singh (PW 6) asked Vijay Kumar to get the door of room No. 5 opened as it was

hot. Vijay Kumar knocked at the door of room No. 5 but nobody responded from

inside. Then he again knocked but still there was no answer whereafter Vijay

Kumar saw through a hole of the cooler that one person was lying on the double

bed. He brought a duplicate key, original of which was taken away by two of the

occupants referred to above, opened the door and found the person, lying on the

bed in injured condition, dead. On the same day, i.e., on 10th July, 1994 at about

2.55 p.m., Mahavir Singh (PW 6) lodged the first information report against

unknown persons.

Police after registering the case took up investigation during the

course of which certain incriminating materials were recovered from the place of

occurrence on the basis of which two accused persons including the appellant

were made accused in the case. Upon completion of investigation, the police

submitted charge sheet against both the accused persons on receipt whereof the

learned magistrate took cognizance and committed the accused persons to the

court of Sessions to face trial. During trial, the prosecution examined several

witnesses and got exhibited various documents to prove the circumstances

against the accused persons as it was not a case of direct evidence and upon

conclusion of trial, both the accused persons were convicted by the trial court

and their appeal having been dismissed by the High Court as stated above, the

present appeal by special leave by one of them.

The first circumstance alleged against the accused persons is that

they hired a taxi, driven by Shamsher Singh, at the Taxi Stand and boarded the

same. The evidence of PW.10, whose testimony has been found to be credible

by the courts below, has proved this circumstance and no infirmity could be

pointed out therein. But the same alone does not take us anywhere to show

complicity of the accused persons with the crime.

The other circumstance is that after boarding the taxi, the accused

persons had gone to the hotel in question, stayed there during night in a room

along with driver of the vehicle, in the early morning both the accused left the

hotel asking the waiter Vijay Kumar to take care of their uncle, i.e., the driver who

was in the room and they would be returning soon, but never returned and

thereafter on opening of the room, the driver was found dead. According to the

statement of Mahavir Singh (PW 6), owner of the hotel, the waiter-Vijay Kumar

told him that "the three persons, namely, two accused persons and the deceased

went to the hotel, stayed there during night and the accused persons left the

hotel leaving the driver in the room." Vijay Kumar, who was the solitary witness

to prove this circumstance, has not been examined for reasons best known to

the prosecution as even according to the prosecution case and evidence there

was no other witness on this point. Owner of the hotel has simply stated that he

learnt all these facts from Vijay Kumar. The presence of accused persons in

the hotel on the fateful night could have been established by examination of

Vijay Kumar, who could have been the only competent witness to prove the

same, but he has been withheld for which no explanation is forthcoming. So far

as evidence of the owner of the hotel, Mahavir Singh (PW 6), is concerned, that

is a hearsay evidence as he learnt everything from the waiter and had otherwise

no personal knowledge of the same. Evidence of this witness could have been

used to corroborate substantive evidence. In the absence of examination of

Vijay Kumar in court, to prove this circumstance, there is no substantive

evidence which could have been corroborated by the evidence of PW 6. Thus

evidence of PW 6 cannot be of any avail to the prosecution to prove this

circumstance.

Now, the question is as to whether there is any documentary

evidence to prove this circumstance. The accused persons are said to have

made an entry in the register, duly maintained by the hotel, in their own pen and

signed the same showing their stay on the fateful night in the hotel in question.

So far as this entry is concerned, the same has been exhibited on the basis of

statement of PW6, though, he has nowhere stated that he knew either the

writings or signatures of any of the accused persons. Indisputably, the accused

never made the entry in presence of PW 6, but the same is claimed to have been

made in presence of Vijay Kumar alone. Thus entry in the register having not

been legally proved is not admissible in evidence. There is no other evidence in

relation to stay of the accused persons in the hotel on the night of occurrence

and there being no substantive evidence in relation to this very circumstance, we

are of the view that the same cannot be proved by the statement of PW6, owner

of the hotel, which could have been used only by way of corroborative evidence

and thus the prosecution has failed to prove this circumstance which was the

most important one to hold the accused persons guilty.

The next circumstance which has been alleged against the accused

is letter written by the appellant to his mother, reliance whereupon has been

placed in the impugned judgments. So far as this letter is concerned, it has been

admitted into evidence to show that the appellant had confessed his guilt. We

have been taken through the letter said to have been written by the appellant, but

we do not find any admission whatsoever, much less confession, in relation to

the complicity of the appellant with the crime. That apart, PW 10, who has

proved this letter, was suggested that the same was forged and fabricated in

which eventuality it was incumbent upon the prosecution to prove the handwriting

and signature of the appellant thereon by sending it to the handwriting expert, but

no such step was taken for reasons best known to the prosecution. Thus, we

are of the view that this circumstance also could not be proved.

The other circumstance, relied upon, is the recovery of gold chain

and ring belonging to the deceased from the accused persons upon the

disclosure statements made by them before the police. It may be stated that

these are articles of common use and can be found out in any house. That

apart, no family member of the deceased has identified these articles or claimed

that the same belonged to the deceased and/or he was wearing the same at the

time of the occurrence. The only person who has identified the same is Baldev

Raj (PW 11)-owner of a shop but it is not possible to place reliance upon his

evidence, firstly because identification by him cannot be of any avail to the

prosecution as he had no special reason to know about the identity of these

articles more so when he admits in evidence that his house is at a distance of

5/6 kilometers from that of the deceased and nowhere it has been stated that he

ever met the deceased and secondly, because no test identification parade was

held for its identification.

In this view of the matter, we are of the opinion that the prosecution

has failed to prove circumstances alleged against the accused persons,

excepting that they hired a taxi, which alone cannot form the basis of conviction,

and the High Court has committed an error in upholding conviction of both the

accused persons.

It may be stated that accused Balwinder Singh alias Binder whose

conviction was also upheld by the High Court did not prefer any appeal to this

Court as such the same attained finality. We find that cases of both the accused

stand on the same footing. Question arises whether powers conferred upon this

Court under Article 136 of the Constitution can be exercised suo motu to meet

the ends of justice in favour of the non-appealing accused as he is entitled to be

granted relief in this appeal. This question is no longer res integra as the same

has been answered by this Court in a catena of decisions. A Constitution Bench

in the case of Durga Shankar Mehta v. Raghuraj Singh and others AIR 1954

SC 520 laid down the scope of powers of this Court under Article 136 of the

Constitution wherein Bijan Kumar Mukherjea, J. , speaking for the Court, with

whom Mahajan, C.J., Bose, Bhagwati and Venkatarama Ayyar, JJ. concurred,

observed that "The powers given by Article 136 of the Constitution, however, are

in the nature of special or residuary powers which are exercisable outside the

purview of ordinary law, in cases where the needs of justice demand interference

by the Supreme Court of the land. The Article itself is worded in the widest terms

possible. ……….The Constitution for the best of reasons did not choose to fetter

or circumscribe the powers exercisable under this Article in any way. ………This

overriding power, which has been vested in the Supreme Court under Article 136

of the Constitution, is in a sense wider than the prerogative right of entertaining

an appeal exercised by the Judicial Committee of the Privy Council in England. "

The course which we propose to adopt is supported by a three Judge

Bench presided over by the then Chief Justice of India Shri Y.V.Chandrachud in

the case of Harbans Singh v. State of Uttar Pradesh and others (1982) 2 SCC

101 wherein death penalty of one of the accused was confirmed by the High

Court as well as this Court by dismissal of the special leave petition as also the

review petition and his petition for clemency was also rejected by the President.

When other accused whose sentence of death was also confirmed by the High

Court moved this Court, his sentence of death was commuted to life

imprisonment. Question had arisen before this Court as to whether in these

circumstances the same benefit could be extended to the accused whose death

sentence was confirmed by this Court by dismissal of the special leave petition

as also review petition and this Court answered the same in the affirmative but it

was of the view that in the interest of comity between the powers of this Court

and the powers of President of India, it will be more in the fitness of things if the

Court were to recommend that the President may be so good as to exercise his

power under Article 72 of the Constitution to commute the death sentence

imposed upon the accused into life imprisonment as he had already considered

the mercy petition of that particular accused once and rejected the same. This

Court, accordingly, made the recommendations. But, while doing so, in relation

to powers of this Court it was observed thus in paragraphs 19 and 20 of the

Judgment:

"19. In the circumstances hereinabove stated, I am of the

opinion that it will be manifestly unjust to allow the death

sentence imposed on the petitioner to be executed. The

question that, however, troubles me is whether this Court

retains any power and jurisdiction to entertain and pass any

appropriate orders on the question of sentence imposed on

the petitioner in view of the fact that not only his special

leave petition and review petition have been dismissed by

this Court but also the further fact that his petition for

clemency has also been rejected by the President.

20. Very wide powers have been conferred on this Court

for due and proper administration of justice. Apart from the

jurisdiction and powers conferred on this Court under

Articles 32 and 136 of the Constitution, I am of the opinion

that this Court retains and must retain, an inherent power

and jurisdiction for dealing with any extraordinary situation in

the larger interests of administration of justice and for

preventing manifest injustice being done. This power must

necessarily be sparingly used only in exceptional

circumstances for furthering the ends of justice. Having

regard to the facts and circumstances of this case, I am of

the opinion that this is a fit case where this Court should

entertain the present petition of Harbans Singh and this

Court should interfere."

In the case of Akhil Ali Jehangir Ali Sayyed v. State of

Maharashtra JT 2002(2) SC 158, a special leave petition filed by an accused,

challenging his conviction upheld by the High Court, was dismissed by this Court

and prayer for review refused, but when appeal was preferred by another

accused, the Court altered his conviction from Section 302 of the Penal Code to

Section 304 part I of the Penal Code. The question had arisen whether the same

benefit could be extended to the accused whose special leave petition as well as

review petition had already been dismissed. Speaking for the Court, Thomas, J.,

while observing that "Article 21 of the Constitution would not permit us to deny

the same benefit to the second accused, notwithstanding the fact that the SLP

and the review application filed by him have been dismissed by this Court"

extended the same benefit to the other accused.

Likewise in the case of Anil Rai v. State of Bihar (2001) 7 SCC

318, while considering appeal of another accused, having altered his conviction

and sentence, the Court extended same benefit to the non-appealing accused

whose case was identical in spite of the fact that his application for grant of

special leave to appeal was dismissed, though, not on merits but on account of

his failure to produce the proof of surrender.

In the case of Raja Ram and others v. State of M.P.(1994) 2 SCC

568, while altering conviction of an accused in appeal preferred by him, this

Court extended the same benefit to non appealing accused whose conviction

was upheld by the High Court and the same attained finality no appeal having

been preferred against the same.

In the instant appeal, the case of non-appealing accused Balwinder

Singh, who never moved this Court, stands on a much better footing than the

cases of accused persons in the decisions referred to above whose applications

for grant of special leave to appeal had been dismissed by this Court. In the

case on hand, we have come to the conclusion that prosecution failed to

establish its case beyond reasonable doubt against both the accused persons

which means that conviction of none of the accused was possible. This Court

has repeatedly observed that while hearing appeal of other accused, in case

Court comes to the conclusion that no conviction of any accused is possible

meaning thereby non-appealing accused as well whose conviction had attained

finality, no appeal having been preferred against the High Court judgment, the

benefit of that decision must be extended to non-appealing accused in spite of

the fact that he has not challenged judgment of the High Court upholding his

conviction as this Court has set up a judicious precedent for the purpose of

averting miscarriage of justice in similar situations. Reference in this connection

may be made to the cases of Chellappan Mohandas and others v. State of

Kerala AIR 1995 SC 90, Dandu Lakshmi Reddy v. State of A.P. (1999) 7 SCC

69, Bijoy Singh and another v. State of Bihar (2002) 9 SCC 147, Gurucharan

Kumar & Anr. v. State of Rajasthan JT 2003(1) SC 60 and Suresh Chaudhary

v.State of Bihar (2003) 4 SCC 128 wherein while hearing appeal of another

accused against the judgment of High Court confirming the conviction, this Court

set aside the same as it was found that the prosecution failed to prove its case

against all the accused persons, including non-appealing one, and directed that

the same benefit shall be extended to the non-appealing accused also though he

did not prefer any appeal before this Court against his conviction.

Apart from the salutary powers exercisable by this Court under Article 142

of the Constitution for doing complete justice to the parties, the powers under

Article 136 of the Constitution can be exercised by it in favour of a party even suo

motu when the Court is satisfied that compelling grounds for its exercise exist but

it should be used very sparingly with caution and circumspection inasmuch as

only in rarest of rare cases.. One of such grounds may be, as it exists like the

present case, where this Court while considering appeal of one of the accused

comes to the conclusion that conviction of appealing as well as non-appealing

accused both was unwarranted. Upon the aforesaid conclusion arrived at by the

apex Court of the land, further detention of non-appealing accused, by virtue of

judgment rendered by the High Court upholding his conviction, being without any

authority of law, infringes upon right to personal liberty guaranteed to the citizen

as enshrined under Article 21 of the Constitution. In our view, in cases, akin to

the present one, where there is either a flagrant violation of mandatory provision

of any statute or any provision of the Constitution, it is not that this Court has a

discretion to exercise its suo motu power but a duty is enjoined upon it to

exercise the same by setting right the illegality in the judgment of the High Court

as it is well settled that illegality should not be allowed to be perpetuated and

failure by this Court to interfere with the same would amount to allowing the

illegality to be perpetuated. In view of the foregoing discussion, we are of the

opinion that accused Balwinder Singh alias Binder is also entitled to be extended

the same benefit which we are granting in favour of the appellant.

Accordingly, the appeal is allowed and the conviction and sentence of the

appellant Pawan Kumar and accused Balwinder Singh @ Binder are set aside

and they are acquitted of the charge. The appellant who is in custody is directed

to be released forthwith, if not required in any other case. Accused Balwinder

Singh @ Binder, if in custody, is also directed to be released forthwith, if not

required in any other case.