State Of Punjab vs Kewal Krishan

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2128/2014

STATE OF PUNJAB ..APPELLANT(S)

VERSUS

KEWAL KRISHAN ..RESPONDENT(S)

J U D G M E N T

1. Counsel for the appellant is present. None

has appeared for the respondent. The office has

submitted a report that notice has been served on

the sole respondent, yet no one has entered

appearance on his behalf.

2. We have heard Mr. Mohit Siwach, learned

counsel for the appellant.

3. This appeal assails the judgment and order

of the High Court of Punjab & Haryana (for short

the High Court) dated 01.05.2012 rendered in

Criminal Appeal No. 372 of 2002, whereby the Signature Not Verified Digitally signed by Charanjeet Kaur Date: 2023.06.27 judgment and order of the trial Court convicting 11:58:37 IST Reason:

and sentencing the respondent (Kewal Krishan)

under Section 302, IPC has been set aside and the 2

appellant (respondent herein) has been acquitted

of the charges for which he was tried.

4. The prosecution case rests on evidence in

respect of following circumstances:

(a) The deceased was last seen alive in his own

house in the company of the accused at about 7.00

p.m. on 10.12.1998 by PW-2.

(b) Dead body of the deceased with multiple

injuries was found in his house by PW-6, nephew of

the deceased, on 12.12.1998 at around 1.00 pm.

(c) Autopsy conducted on 12.12.1998, at about 4.15

pm, reflected that death of the deceased could

have occurred within two days, as a result of

shock and haemorrhage, due to ante mortem incised

wounds.

(d) Accused made an extra-judicial confession

before P.W-3 on 25.12.1998 and was thereafter

handed over to the police on the same day.

(e) Accused made a disclosure to the police on

25.12.1998 with regard to the place where he hid

the knife used in the crime, which led to the

recovery of a Khanjar (knife) (Ex.P-1).

(f) The autopsy surgeon opined that the incised

wounds found on deceased’s body could have been

caused by use of that Khanjar.

3

5. The trial Court found those circumstances

proved and forming a chain so complete as to

conclusively indicate that it was the accused and

no one else who committed the murder and thus

convicted and sentenced the accused accordingly.

6. Aggrieved by his conviction, the accused

went in appeal to the High Court.

7. The High Court noticed that the accused in

his statement under section 313 of the Code of

Criminal Procedure, 1973 had denied the

incriminating circumstances appearing against him

in the prosecution evidence and had claimed that

he was arrested on 12.12.1998 itself on false

implication. Thereafter, the High Court, on a

careful analysis of the evidence, more

particularly the statement made by PW-2 that on

13.12.1998 he had disclosed to the police about

the involvement of the accused, doubted the date

of arrest of the appellant (i.e., 25.12.1998), as

set up by the prosecution, and opined that the

statement of PW-2 probabilizes the claim of the

accused that he was arrested on 12.12.1998 itself.

The High Court found PW-2’s evidence of last seen

not convincing and reliable inasmuch as if on

13.12.1998 PW-2 had informed the police about his

suspicion in respect of the involvement of the

accused, the police would have arrested the 4

accused forthwith and not waited till 25.12.1998.

But the record indicated that the name of the

accused came to light for the first time on

25.12.1998. In these circumstances, the High Court

found PW-2 unreliable, as being a witness who was

set up later. Otherwise also, the High Court found

that last seen circumstance did not conclusively

point towards the guilt of the accused by

excluding all hypotheses consistent with his

innocence, inasmuch as there was a huge time gap

between the date and time when the deceased was

last seen in the company of the accused and

discovery of deceased’s dead body. Further, the

High Court took note of the circumstance that the

autopsy conducted on 12.12.1998 at 4.15 pm

indicated occurence of rigor mortis on lower

limbs, which suggested that death could have

occurred within 30 hours of the autopsy, thereby

throwing open the possibility of death occurring

much later than at 7.00 pm on 10.11.1998, when the

deceased was allegedly seen in the company of the

accused. Taking note of the above and bearing in

mind that the accused did not reside with the

deceased and no evidence was led that except the

accused no one else could have entered the house

of the deceased in the interregnum, the last seen

circumstance was found inconclusive. 5

8. In respect of the circumstance of recovery

of the knife, the High Court, firstly, doubted the

date of arrest, as noticed above, and, secondly,

noticed that there was no serologist report to

ascertain whether the knife was stained with human

blood as to connect it with the crime.

9. The High Court also discarded the extra

judicial confession on the ground that there was

no cogent explanation set out in the prosecution

evidence to demonstrate as to why the accused

would make a confession to P.W.3, particularly,

when the accused had no significant relationship

with PW-3 and PW-3 could not have helped him. The

extra judicial confession was also doubted on the

ground that the date of arrest of the accused

(i.e., 25.12.1998) appeared doubtful, inasmuch as

there was a high probability of the accused being

arrested earlier i.e., 12.12.1998, as claimed by

him, because from the statement of PW-2 it

appeared that the police was informed by him on

13.12.1998 itself in respect of his suspicion

regarding the involvement of the accused.

10. After a thorough analysis of the evidence

as highlighted above, the High Court found that,

firstly, the incriminating circumstances were not

proved beyond reasonable doubt and, secondly, they 6

did not constitute a chain so complete as to

conclusively indicate that it was the accused and

no one else who, in all human probability,

committed the crime. Consequently, the High Court

set aside the order of the trial Court and

acquitted the accused of the charge.

11. Learned counsel for the State (appellant)

has submitted that there was no proven enmity of

the witnesses with the accused. In these

circumstances, there was no occasion for the High

Court to doubt the testimony of the prosecution

witnesses in respect of the incriminating

circumstances laid out by the prosecution. In such

a situation there was no justification to reverse

the conviction recorded by the trial Court. It was

argued that the deceased was last seen alive,

having liquor with the accused, in the evening of

10.12.1998 and thereafter the deceased was not

seen alive by anyone. The autopsy report

probabilizes death of the deceased at around the

same time when he was last seen in the company of

the accused. In these circumstances, the burden

was on the accused to prove as to when he left

company of the deceased. In absence whereof,

coupled with other circumstances, accused’s

conviction was justified. Therefore, the High

Court fell in error by setting aside the judgment 7

of the trial Court and acquitting the respondent.

12. We have considered the submissions of the

learned counsel for the appellant and have perused

the record carefully.

13. Before we proceed further, it would be

apposite to notice the law as to when it would be

appropriate for this Court, exercising power under

Article 136 of the Constitution of India, to

interfere with an order of acquittal passed by the

High Court while reversing an order of conviction

recorded by the Trial Court. The law in this

regard is well settled. Normally, this Court is

reluctant to interfere with an order of acquittal.

But when it appears that the High Court has on an

absolutely wrong process of reasoning and a

legally erroneous and perverse approach to the

facts of the case and ignoring some of the most

vital facts, acquitted the respondent and the

order of acquittal passed by the High Court has

resulted in a grave and substantial miscarriage of

justice, extraordinary jurisdiction under Article

136 of the Constitution of India may rightfully be

exercised (See : State of U.P. v. Sahai, (1982) 1

SCC 352).

14. In State of M.P. v. Paltan Mallah, (2005) 3

SCC 169 reiterating the same view it was observed:

“8…….. This being an appeal against 8

acquittal, this Court would be slow in

interfering with the findings of the

High Court, unless there is perverse

appreciation of the evidence which

resulted in serious miscarriage of

justice and if the High Court has taken

a plausible view this Court would not

be justified in interfering with the

acquittal passed in favour of the

accused and if two views are possible

and the High Court had chosen one view

which is just and reasonable, then also

this Court would be reluctant to

interfere with the judgment of the High

Court.”

15. In a recent decision rendered by this Court

in Basheera Begam v. Mohd. Ibrahim, (2020) 11 SCC

174, it was observed:

“190. ………..Reversal of a judgment and

order of conviction and acquittal of

the accused should not ordinarily be

interfered with unless such

reversal/acquittal is vitiated by

perversity. In other words, the court

might reverse an order of acquittal if

the court finds that no person properly

instructed in law could have upon 9

analysis of the evidence on record

found the accused to be “not guilty”.”

16. In light of the law noticed above, we would

have to examine, firstly, whether the High Court

ignored or misread any material piece of evidence

which has resulted in miscarriage of justice;

secondly, whether there is any perversity in the

appreciation of evidence; and, thirdly, whether

the view taken by the High Court is a plausible

view.

17. This is a case based on circumstantial

evidence. It is trite law that to convict an

accused on the basis of circumstantial evidence,

the prosecution must prove beyond reasonable doubt

each of the incriminating circumstances on which

it proposes to rely; the circumstance(s) relied

upon must be of a definite tendency unerringly

pointing towards accused’s guilt and must form a

chain so far complete that there is no escape from

the conclusion that within all human probability

it is the accused and no one else who had

committed the crime and they (it) must exclude all

other hypothesis inconsistent with his guilt and

consistent with his innocence.

18. In the instant case, we notice from the

record that the dead body of the deceased, lying

in a naked condition in his house, was first 10

discovered by PW-6, nephew of the deceased, on

12.12.1998 at around 1.00 pm. Upon discovery of

the dead body, on the information provided by PW-

6, FIR was registered against unknown accused and

inquest etc. was carried out. What is important is

that the name of the accused did not surface on

the record till 25.12.1998, that is when he was

allegedly handed over to the police by PW-3 upon a

confession made by him before PW-3. PW-2, the sole

witness of the last seen circumstance, in his

deposition in court, stated that he had expressed

his suspicion in respect of accused’s involvement

to the police on 13.12.1998. The High Court opined

that if PW-2 was aware of the last seen

circumstance and had made such a disclosure, there

was no reason for the police not to act against

the accused till 25.12.1998. Therefore, the

statement of PW-2 in respect of imparting

knowledge of the last seen circumstance appeared

doubtful and it appeared that the witness was set

up to create link evidence. The High Court also

noticed that the alleged date and time when the

deceased was last seen alive was at quite a

distance from the date and time when the deceased

was found dead. Indisputably the deceased was

found dead in his own house where the accused did

not reside. The deceased was allegedly last seen 11

alive in the company of the accused in the evening

at around 7 pm of 10.12.1998 whereas the body of

the deceased was found 2 days later, on

12.12.1998. Autopsy report, based on autopsy

conducted at around 4.15 pm on 12.12.1998, noted

occurance of rigor mortis in the lower limbs,

which gives rise to a possibility of death being

within 30 hours of the autopsy, meaning thereby

that death might have occurred much after 7 pm of

10.12.1998. In such circumstances, bearing in mind

that the deceased was found dead in his own house,

where the accused did not reside, and there was no

evidence as to when the accused left the house and

that no one else could have entered the house in

the interregnum, other intervening circumstances

including hand of some third person in the crime

was not ruled out by the prosecution evidence. For

the reasons above, we are of the considered view

that the High Court was justified in doubting the

testimony of PW-2 and finding the last seen

circumstance inconclusive in pointing towards the

guilt of the accused by excluding other hypotheses

consistent with his innocence.

19. As regards recovery of the Khanjar (knife)

is concerned, the same was denied by the accused

and there was no serologist report to connect it

with the crime. Therefore, it had very little 12

incriminating value to sustain conviction on its

own basis. Moreover, the High Court, on strength

of the circumstances appearing in the evidence,

doubted the date of arrest and, upon consideration

of the circumstances, accepted the possibility of

the arrest of the accused being much earlier in

point of time, as claimed by the accused, than

what was set up by the prosecution. In such

circumstances, the recovery, which was made on

25.12.1998, allegedly on disclosure made by the

accused on 25.12.1998, becomes doubtful. The view

of the High Court in this regard cannot be termed

perverse as to warrant interference by this Court.

20. Insofar as the evidence of extra judicial

confession made by the accused is concerned, the

same was provided by PW-3, a member of the

Panchayat wherein the deceased resided. Ordinarily

a person makes a confession either to absolve

oneself of the burden of guilt or to seek

protection under the hope that the person to whom

confession is made would protect him. Normally a

confession to absolve oneself of the guilt is made

to a person on whom the confessor reposes

confidence. The High Court noticed that there was

no evidence to demonstrate that the accused had

any prior relations with PW-3 or that the accused

hoped for, or sought, any help from PW-3 and, 13

therefore, made the confession to him. Notably,

the accused denied making any such confession. For

the reasons above, including other, which need not

be put on record, the High Court discarded the

circumstance of the accused making a confession

before PW-3 on 25.12.1998. Otherwise also, an

extra judicial confession is a very weak type of

evidence and solely on its basis a conviction is

not ordinarily to be recorded.

21. The argument of the learned counsel for the

appellant that since there was no proven enmity

between the accused and the witnesses therefore

there was no reason to disbelieve them, would not

be of much help to the appellant because this is a

case based on circumstantial evidence. In a case

based on circumstantial evidence not only do each

of the incriminating circumstances have to be

proved beyond reasonable doubt but those

incriminating circumstances must constitute a

chain so far complete that there is no escape from

the conclusion that within all human probability

it is the accused who has committed the crime and

further, cumulatively, they must exclude all

hypotheses consistent with the innocence of the

accused and inconsistent with his guilt. As we

have found that the incriminating circumstances

were not proved beyond reasonable doubt and 14

otherwise also the circumstance of last seen was

inconclusive, in our view, the High Court was

justified in setting aside the order of conviction

recorded by the Trial Court.

22. The argument that the accused has failed to

discharge his burden under section 106 of the

Evidence Act and, therefore, his conviction was

justified is misconceived. Section 106 of the

Evidence Act does not absolve the prosecution of

discharging its primary burden of proving the

prosecution case beyond reasonable doubt. It is

only when the prosecution has led evidence which,

if believed, will sustain a conviction, or which

makes out a prima facie case, the question arises

of considering facts of which the burden of proof

would lie upon the accused. (See: Shivaji

Chintappa Patil v. State of Maharashtra (2021) 5

SCC 626). Here, as we have discussed above,

firstly, the incriminating circumstances were not

proved beyond reasonable doubt and, secondly, they

do not form a chain so complete from which it

could be inferred with a degree of certainty that

it is the accused and no one else who, within all

human probability, committed the crime. In these

circumstances, there was no occasion to place

burden on the accused with the aid of section 106

of the Evidence Act to prove his innocence or to 15

disclose that he parted company of the deceased

before his murder.

23. For all the reasons above, while keeping in

mind that the view taken by the High Court is a

plausible view and that it was not pointed out

that any material evidence was ignored or misread,

we do not find a good reason to interfere with the

order of acquittal passed by the High Court.

24. The appeal is accordingly, dismissed.

....................J. [B.V. NAGARATHNA]

....................J. [MANOJ MISRA]

NEW DELHI, JUNE 21, 2023.