Roop Singh @ Roopa vs State Of Punjab

Roop Singh @ Rupa ...Appellant

Versus

The State of Punjab ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. In this appeal challenge is to the judgment of a Division

Bench of the Punjab and Haryana High Court upholding the

conviction of the appellant for offence punishable under

Section 302 read with Section 34 and Section 449 read with

Section 34 of the Indian Penal Code, 1860 (in short the `IPC'). The co-accused persons who were similarly convicted were

acquitted by the High Court.

2. Background facts in a nutshell are as follows:

Jarnail Singh (hereinafter referred to as the `deceased')

and his wife Nasib Kaur immigrated to Canada about 12 years

earlier but had both returned to Kotla about two months

before Jarnail Singh's murder on April 10, 2001. Pala Singh

(PW 7) was deceased's brother in law being the husband of

Nasib Kaur's sister. He also belonged to Kotla. Jarnail Singh

lived in his house in the fields, about half a kilometre from the

village, on the passage leading to Baghapurana. According to

Pala Singh, he and Jarnail Singh used to sleep at night at

Jarnail Singh's farm house while Nasib Kaur would sleep with

her sister in Pala Singh's house.

On the evening of April 10, 2001 Nasib Kaur and Pala

Singh's son Darshan Singh had gone to visit Jarnail Singh's

2 sister in Bukhanwala. Pala Singh's grand son Jaswant Singh

had taken food for Jarnail Singh to his house at about 7.30

P.M. But Jarnail Singh was not there. Later at about 9 P.M.

Gurnam Singh (PW 5) came to Pala Singh and told him that

someone had inflicted injuries on Jarnail Singh. Gurnam

Singh had learnt about this from Assa Singh, who was

employed as a guard at Jarnail Singh's house. Pala Singh

alongwith Lambarder Gurmit Singh of the village went to

Jarnail Singh's house and found Jarnail Singh's dead body

lying on a cot. Assa Singh told Pala Singh that Jarnail Singh

had come home at about 8 P.M. on a scooter and about half

an hour later Jarnail Singh had come to him and told him that

he had been stabbed.

Pala Singh went to the courtyard and saw Jarnail Singh's

chappals lying there and a trail of blood from the courtyard to

Assa Singh's cot where Jarnail Singh's dead body lay. Pala

Singh immediately went to Bukanwala to fetch Nasib Kaur

and his son. According to Pala Singh, Jarnail Singh was fond

3 of drinking and would indulge even in this habit during day

time.

The matter was reported by Pala Singh to Inspector

Joginder Singh and his statement was recorded by the

Investigating officer at Rajeana bus stand at 6 A.M. on April

11, 2001. The statement was sent to the Police Station,

Baghapurana, and on its basis F.I.R. was registered at 6.30

A.M. under Section 302 IPC. Special report of the case was

received by Judicial Magistrate, Moga at 10 A.M. on the same

day.

Immediately thereafter Inspector Joginder Singh (PW 19)

set out for the spot, which was inspected whereafter inquest

report was prepared in the presence of Ajaib Singh and

Lambardar Gurmit Singh. The statements of these two

witnesses were also incorporated in the inquest report. After

completion of the inquest proceedings, the dead body of

Jarnail Singh was sent for post-mortem examination which

4 was conducted by Dr. Navraj Singh (PW4), Civil Hospital,

Moga at 12.45 PM.

After sending the dead body for post-mortem

examination, Inspector Joginder Singh continued his

investigation at the spot. He lifted bloodstained earth from the

spot, blood stained quilt, mattress and bed sheet were also

taken into possession from the cot on which Jarnail Singh's

dead body was lying. The Investigating officer had actually

cut the blood stained portions of the above items before taking

them separately into possession. A bottle containing 100 ml

of liquor, which was lying up stairs, was also recovered and

taken into possession. Three foot prints moulds were

prepared of the foot prints found at the spot. One of these

was of a right shoe and the other two were of left bare feet.

Moulds were separately taken into possession. A pair of

chappals was also picked up from the spot. The site plan of

the place of the occurrence was prepared.

5 On completion of the investigation, charge sheet was filed

and since the accused persons abjured guilt, they faced trial.

The trial court, as noted above, directed conviction and

imposed sentence. According to the trial court the case rested

on circumstantial evidence and four factors weighed with the

trial court to record conviction. They were (a) finding of the

left foot print of the appellant on the spot of occurrence, (b)

finger print on the bottle of liquor which was found near the

place of occurrence matched with the right index finger of the

appellant, (3) there was extra judicial confession before PWs 2

and 4 evidence of Wazir Singh (PW3) having seen all the three

accused persons together.

The High Court did not accept the conclusions of the trial

court relating to the relevance of the evidence of PWs 2 & 3.

The High Court found the same was not credible and cogent.

However, relying on the other two circumstances, the High

Court upheld the conviction of the appellant while directing

acquittal of the co-accused persons. The High Court noted

that the chain of the circumstances was not complete so far as

6 PWs 2 & 3 are concerned, but it is complete so far as the

present appellant is concerned.

3. Learned counsel for the appellant submitted that the

conclusions of the High Court are based on surmises and

conjectures and having held that the evidence of PWs 2 & 3 so

far as the alleged confession, or to have seen the accused

persons altogether, to be unreliable, should not have directed

conviction.

4. Learned counsel for the respondent-State on the other

hand supported the judgment of the High Court.

5. It has been consistently laid down by this Court that

where a case rests squarely on circumstantial evidence, the

inference of guilt can be justified only when all the

incriminating facts and circumstances are found to be

incompatible with the innocence of the accused or the guilt of

any other person. (See Hukam Singh v. State of Rajasthan AIR

(1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR

7 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR

1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985

SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC

350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC

1890). The circumstances from which an inference as to the

guilt of the accused is drawn have to be proved beyond

reasonable doubt and have to be shown to be closely

connected with the principal fact sought to be inferred from

those circumstances. In Bhagat Ram v. State of Punjab (AIR

1954 SC 621), it was laid down that where the case depends

upon the conclusion drawn from circumstances the

cumulative effect of the circumstances must be such as to

negative the innocence of the accused and bring the offences

home beyond any reasonable doubt.

6. We may also make a reference to a decision of this Court

in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC

193, wherein it has been observed thus:

"In a case based on circumstantial evidence, the settled law is that the circumstances from

8 which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".

7. In Padala Veera Reddy v. State of A.P. and Ors. (AIR

1990 SC 79), it was laid down that when a case rests upon

circumstantial evidence, such evidence must satisfy the

following tests:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other

9 hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

8. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ

1104), it was pointed out that great care must be taken in

evaluating circumstantial evidence and if the evidence relied

on is reasonably capable of two inferences, the one in favour

of the accused must be accepted. It was also pointed out that

the circumstances relied upon must be found to have been

fully established and the cumulative effect of all the facts so

established must be consistent only with the hypothesis of

guilt.

9. Sir Alfred Wills in his admirable book "Wills'

Circumstantial Evidence" (Chapter VI) lays down the following

rules specially to be observed in the case of circumstantial

evidence: (1) the facts alleged as the basis of any legal

inference must be clearly proved and beyond reasonable

doubt connected with the factum probandum; (2) the burden

10 of proof is always on the party who asserts the existence of

any fact, which infers legal accountability; (3) in all cases,

whether of direct or circumstantial evidence the best evidence

must be adduced which the nature of the case admits; (4) in

order to justify the inference of guilt, the inculpatory facts

must be incompatible with the innocence of the accused and

incapable of explanation, upon any other reasonable

hypothesis than that of his guilt, (5) if there be any reasonable

doubt of the guilt of the accused, he is entitled as of right to

be acquitted".

10. There is no doubt that conviction can be based solely on

circumstantial evidence but it should be tested by the touch-

stone of law relating to circumstantial evidence laid down by

the this Court as far back as in 1952.

11. In Hanumant Govind Nargundkar and Anr. V. State of

Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed

thus:

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"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

12. A reference may be made to a later decision in Sharad

Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC

1622). Therein, while dealing with circumstantial evidence, it

has been held that onus was on the prosecution to prove that

the chain is complete and the infirmity of lacuna in

prosecution cannot be cured by false defence or plea. The

conditions precedent in the words of this Court, before

conviction could be based on circumstantial evidence, must be

fully established. They are:

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(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

13. As rightly contended by the learned counsel the

appellant that the two circumstances highlighted by the High

Court while upholding the conviction of the appellant do not

present a complete chain of circumstances which ruled out

the possibility of any other person being the assailant and/or

13 unerringly points to the accused appellant as being guilty of

the charged offences. There was no evidence led by the

prosecution to show that the prints in question came into

existence at the time the alleged incident took place.

14. We, therefore, find merit in this appeal, which is allowed.

Conviction as recorded by the High Court cannot be

maintained. The appellant is in custody. He be released

forthwith unless required to be in custody in connection with

any other case. We record our appreciation for the able

manner in which learned Amicus Curiae assisted the court.

15. Appeal is allowed.

..............................J. (Dr. ARIJIT PASAYAT)

..............................J. (G.S. SINGHVI) New Delhi, June 20, 2008

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