Sukhpal Singh vs The State Of Punjab

Non-Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1697 OF 2009

SUKHPAL SINGH ...APPELLANT(S)

VERSUS

STATE OF PUNJAB ...RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. This appeal by special leave is directed

against the judgment of the High Court Signature Not Verified

dismissing Digitally signed by SANJAY KUMAR the appeal filed by the appellant Date: 2019.02.12 16:41:39 IST Reason:

against his conviction under Section 302 of the 2

Indian Penal code (hereinafter referred to as

the “IPC”) and sentencing to rigorous

imprisonment for life.

2. On 27/06/1993 upon discovery of an

unidentified body near a canal and the case

being registered and upon investigation being

conducted the appellant along with another came

to be charge sheeted and charged with the

commission of offences under Section 302 read

with Section 34 of the IPC. They were also

charged with the offence under Section 201 of

the IPC. Before the trial Court the prosecution

examined PW1 to PW17. The appellant examined

DW1 and DW2. The trial Court convicted the

appellant while it acquitted the co-accused. As

already noticed the High Court has affirmed the 3

conviction and sentence of the accused-

appellant.

3. We heard Ms. Aishwarya Bhati, learned

Amicus Curiae and also learned counsel for the

respondent-State.

4. Learned Amicus Curiae contended before us

that the case is based only on circumstantial

evidence. She pointed out that there are three

circumstances which were alleged against the

appellant. Firstly, it is contended that the

prosecution laid store by an alleged extra

judicial confession made by the appellant to PW

4 but she immediately pointed out that the said

extra judicial confession has not been accepted

either by the trial court or by the High Court.

Secondly, it is pointed out that the courts have

relied upon the theory of last seen. The theory 4

of last seen is sought to be proved through the

evidence of PW7, PW8 and PW9. Thirdly, it is

pointed out that the prosecution has sought to

draw support from recovery of .38 caliber gun

apart from cartridges. She would submit that no

reliance can be placed upon the same. Lastly,

she also contended that there is absolutely no

motive for the appellant to commit the murder of

the deceased. In a case of circumstantial

evidence, motive assumes great significance.

Absence of evidence of any motive with the

appellant to do away with the deceased, is fatal

to the prosecution case, runs the argument.

5. Per contra, learned counsel for the State

would submit that the circumstances formed a

complete chain and unerringly point to the guilt

of the appellant. It is further pointed out 5

that the van belonging to the deceased in which

the accused were also seen last by the witnesses

for the prosecution was recovered at the

instance of the appellant. This is besides the

forensic evidence available which would also

establish that this is a case of the murder

committed by none other than the appellant as

the forensic report would show that the bullet

which was recovered from the body of the

deceased was fired from the gun recovered from

the appellant. Recovery was of the gun and also

empty cartridges besides live cartridges. An

attempt is made also to establish that there was

a fight between the deceased and the appellant

going by the injuries noted in the post-mortem

and this pointed to motive.

6

6. We would exclude the circumstance namely,

the extra judicial confession which has not been

given credence to by the courts below. We will

thereafter examine firstly whether the

prosecution has been able to establish the last

seen theory. The case of last seen theory has

been sought to be proved through the testimony

of PW7, PW8 and PW9.

7. P.W.7 is the brother in law of the

deceased. He has deposed that the deceased was

having a taxi and on 26.6.1993 he along with the

deceased was present at the taxi stand. Then

both the accused came there. They asked the

deceased to take them in his taxi and he left

with them. No doubt, in cross examination he

does say that 4 or 5 taxis in addition to their

two taxis were present at the taxi stand. He is 7

not able to give the names of other taxi drivers

or the registered numbers of their vehicles. He

had a separate taxi. There is nothing vital in

his cross examination which could be said to

demolish his examination-in-chief.

8. P.W.8 would state that 2½ years or 3

years ago when he reached village Thandewala, he

found on the canal bank the van of the deceased

where both the accused were sitting in the van.

He was to go to Amritsar so he stopped the van.

He stated that the registration number of the

van was 3332. He stated he knew the deceased

and both the accused. He further stated that

the deceased was not present in the van. He

asked the accused as to where the deceased was

as he wanted to hire his taxi, thereupon the

accused told him that they had some secret work 8

so they did not bring the deceased with them.

He would say after 6 or 7 days he learnt that

dead body of the deceased was recovered. He

made a statement to the police. In cross

examination he also says that he did not say

before the police that he stopped the van as he

was to engage the van to go for holy dip at

Amritsar nor did he state to the police that he

was to hire the van of the deceased. No doubt

there may be minor contradictions but we think

that his evidence has inspired the confidence of

two courts. PW9 is an employee of the co-

operative Bank as a gunman. He would say that

on 26/06/1993 he came on a scooter and when he

reached bus adda of village Jabelwali it started

raining, he stopped there. The deceased came

there in his van from Muktsar side. Both the

accused were sitting in the van. On seeing him 9

deceased brought the van near him as he was his

brother-in-law. He asked him to accompany but

PW9 told him that he has scooter. However, it

is deposed that the appellant asked the deceased

to hurry up as he was getting late. Then the

van left towards Kakapura. After the rain

stopped, PW9 went in the same direction and he

saw the van of the deceased turning downstream

of the canal water of Rajasthan Canal. In cross

examination he would say that the canal was at a

distance of half kilometer from Jabelwali bus

stand. Bus stand Jabelwali is at a distance of

8 or 10 kilometers from Muktsar. He would say

that his duty hours in the Bank is from 10.00

a.m. to 5.00 p.m. as gunman. The van of the

deceased he would say came to him at the bus

stand at about 9 a.m.or 10 a.m.. He was at a

distance of 10 to 15 killas from Jabelwali bus 10

stand when it started raining. He stood at the

bus stand for about 15-20 minutes. He left the

bus stand on scooter 5 to 7 minutes after the

van left towards Kakapura. He would say that he

did not know the relation except the appellant’s

wife. It would be noticed that there is no

suggestion in the cross examination however that

he does not know the appellant or that he has

never seen him before.

9. The aforesaid evidence, in our opinion,

which has been believed by the trial court as

well as by the High Court, can be relied upon by

us to conclude that the prosecution has

established that the appellant was indeed last

seen with the deceased before his death and

recovery of the body. The appellant admittedly

was working as a police officer. The next 11

circumstance which has been relied upon by the

courts is the recovery of his service revolver –

the gun along with empty cartridges and live

cartridges. The evidence of PW15- officer would

show that on 09.7.1993, the appellant was

arrested along with co-accused. The Maruti van

belonging to the deceased was also produced and

the same was taken into possession in the

presence of Gurdev Singh and Head Constable

Surinder Singh. He has stated that the

appellant was interrogated. He disclosed that

he concealed .38 bore revolver along with 3 live

cartridges and 2 empty cartridges and

Rs.20,000/- cash in an iron box lying in his

house and same was hidden. The statement was

attested by Gurdev Singh (Sarpanch) and Surinder

Singh. A .38 bore revolver, 2 empty cartridges

and 3 live cartridges were recovered as per the 12

statement from an iron box from the store of his

house. The key was taken out by him from the

almirah by the appellant. The revolver and

cartridges were sealed after making into

parcels. They were taken into possession. A

seal was prepared which is handed over after use

to Gurdev Singh. It is also established from

the statement of PW15, the investigating officer

that after the post-mortem, a bullet was

produced before him. No doubt, the bullet was

recovered at the time of post-mortem on

26.7.1993. The revolver was recovered on

11.7.1993. In cross examination P.W.15 has

spoken about sending the revolver and bullet for

forensic examination. The report of the

Forensic Science Laboratory is to the effect

that the bullet which was marked as B1 has been

fired from .38 bore revolver No.673. This 13

undoubtedly would establish that the bullet

which resulted in the death of the deceased came

from the revolver which was issued to the

appellant.

10. Learned counsel for the appellant in the

light of this clearly incriminating circumstance

drew our attention to the following statement

given by the appellant in his statement under

Section 313 Cr.P.C.

“I am innocent. I have been falsely implicated. I was suspended by S.S.P. Faridkot on 3.5.1993 and was sent to Police Lines, Faridkot, where I remained present in the months of May and June 1993 throughout. In May I deposited my revolver and ammunition, because of my suspension, in Police Lines, Faridkot. On 28.6.1993 vide report No.3 in the Daily Diary I was detailed on duty to go to the office of D.S.P. Moga, regarding departmental enquiry. When I returned 14

in the evening, police of P.S. Sadar Muktsar took me from the Police Lines. They also collected my revolver and ammunition from the officials of the Police Lines, Faridkot. I was detained for some days in illegal custody and my formal arrest was shown thereafter and recovery of revolver and ammunition was foisted against me. Revolver after firing in the police station was sent to Forensic Science Laboratory. Bullet was also foisted against me.”

11. Apparently the version that is sought to

be set up is that the appellant was under

suspension, and therefore the appellant had

surrendered his revolver and therefore the case

of the recovery of the gun and that the fatal

shot was fired from the gun should not be

believed.

12. There appears to be no evidence to show

however that the appellant was actually placed 15

under suspension as is sought to be claimed by

him in the questioning under Section 313. The

appellant has also not been able to draw our

attention to any evidence adduced by him to

establish that he was in fact placed under

suspension so as to prove that he had

surrendered the gun at the police station prior

to the date of the incident. It may be true

that the investigating officer when questioned

has stated that he does not know whether the

officer was suspended. However, this was the

state of the prosecution evidence. It was

thereupon incumbent upon the appellant to

establish the case through evidence which would

certainly have been available had indeed been

placed under suspension. In the absence of

material to establish the case of suspension we

are not inclined to disturb the concurrent 16

findings by the court which is based on evidence

which establishes that there was a recovery of

the gun along with 2 empty cartridges and 3 live

cartridges on the statement given by the

appellant. Furthermore, as already noticed, the

evidence establishes that the bullet found in

the body of the deceased was fired from the gun

which is allotted to the appellant. That apart

we have already found that there is ample

evidence to show that the appellant was last

seen with the deceased, again, a fact which is

established on the basis of testimony of

witnesses who have been found to be creditworthy

by two courts. In an appeal maintained under

leave under Section 136 this Court would not

ordinarily go into the credibility of the

witnesses whose testimony has inspired the

confidence of the courts.

17

13. The evidence of three witnesses relating to

last seen has been relied upon by two courts. It

may be true that there may be certain minor

contradictions. The credibility of witnesses is

ordinarily not re-visited by this Court in an

appeal by special leave. That apart the

circumstance as to the recovery and what is most

important the report of the forensic laboratory

is clinching. The report of the forensic

laboratory reads as follows:

“One point .38 inch jacketed bullet marked B/1 contained in parcel ‘A’ has been fired from .38 inch revolver No.A-

673.”

14. We are not inclined to place any reliance

on appellant’s version that the gun was actually

surrendered by him and making use of the gun, a

shot was fired and he has been implicated 18

particularly as he has not proved that he has

been placed under suspension. Furthermore, in

fact, P.W.15 has denied the allegation that the

bullet was sent after firing. The only

inevitable conclusion we can reach is that the

gun was recovered from him and the bullet which

has been found to have caused the fatal injury

to the deceased and which was recovered from the

body of the deceased has been fired from the

appellant’s gun.

15. The last submission which we are called

upon to deal with is that there is no motive

established against the appellant for committing

murder. It is undoubtedly true that the

question of motive may assume significance in a

prosecution case based on circumstantial 19

evidence. But the question is whether in a case

of circumstantial evidence inability on the part

of the prosecution to establish a motive is

fatal to the prosecution case. We would think

that while it is true that if the prosecution

establishes a motive for the accused to commit a

crime it will undoubtedly strengthen the

prosecution version based on circumstantial

evidence, but that is far cry from saying that

the absence of a motive for the commission of

the crime by the accused will irrespective of

other material available before the court by way

of circumstantial evidence be fatal to the

prosecution. In such circumstances, on account

of the circumstances which stand established by 20

evidence as discussed above, we find no merit in

the appeal and same shall stand dismissed.

………………………………………….J. (A.M. Khanwilkar)

………………………………………………J. (K.M. Joseph) New Delhi;

February 12, 2019