Suresh vs State Of Haryana

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO (S). 1445­1446 OF 2012 Suresh and Anr. …Appellant (s) Versus State of Haryana …Respondent (s) With CRIMINAL APPEAL NO. 1458 OF 2012 Sobhat Singh …Appellant (s) Versus Dharampal and Ors. …Respondent (s)

JUDGMENT

N. V. RAMANA, J.

1. These appeals by special leave petitions, are preferred by two

accused persons, namely Sobhat Singh and Suresh, against the

conviction imposed by the High Court and the consequential

acquittal of other persons, namely Dharampal and Umed Singh,

sons of Beg Raj and Dharambir, passed by the High Court of

Punjab and Haryana in Crl. Appeal No. 157­DB of 2002, 273­DB

of 2002, 920­SB of 2002, 751­DBA of 2002 and Crl. Revision No. Signature Not Verified

907 of 2004. Facts being connected and issues being similar, we Digitally signed by VISHAL ANAND Date: 2018.08.21 16:03:27 IST Reason:

would like to deal with these appeals by a common judgment.

1

2. Few facts which are necessary for the disposal of these cases are

that a panchayat election was held on 15.12.1994, in the village

Sundawas, where there were two major contestants namely

Maha Singh and Dharampal son of Beg Raj. Deceased Chander

Bhan was an election agent for the losing candidate Maha Singh.

It is necessary to note that there was a quarrel including gun

shots being fired at around 11 A.M, on the day of election

between both factions, as a result of which supporters of

Dharampal son of Beg Raj (winning candidate) sustained

injuries. In this context, a FIR No. 733 of 1994 was registered

against Maha Singh (losing candidate) and one Darya under

Sections 307 read with 34 of Indian Penal Code, 1860

[hereinafter referred as ‘IPC’ for brevity] and Sections 25 and 27

of the Arms Act, 1959.

3. Later, during the intervening night of 15 th and 16th December of

1994, Dharampal alias Dharam son of Nanak Ram [accused A­

1], Sobhat Singh [accused A­2], both being supporters of losing

candidate Maha Singh, came to the house of Chander Bhan, on 2 the pretext that since Maha Singh had lost the election and was

involved in a criminal case, they should falsely implicate

Dharampal son of Beg Raj also, by registering a counter case

against him. On this pretext, they accompanied Chander Bhan to

Hisar. On their way, one Suresh [accused A­3] is supposed to

have joined them.

4. One Umed Singh son of Mahi Ram [PW­14], while waiting near

Borstal Jail, Hisar for a conveyance at 4:00 A.M on 16.12.1994

(morning) had seen A­1, A­2, Chander Bhan and A­3 going in an

auto rickshaw. It is the prosecution’s version that all of them

went to an abandoned house in Adarsh Nagar at Hisar, wherein

Chander Bhan (deceased) was shot by the aforesaid accused.

5. Thereafter, A­1 and A­2 took injured Chander Bhan to the City

Civil Hospital, Hisar for treatment. It is alleged that in the

meanwhile A­3 tried to hide the gun. It is born from the record

that Chander Bhan succumbed to his injuries 20 minutes after

he was admitted to the aforesaid Hospital on 16.12.1994.

3

6. Thereafter, accused A­2 went to the Police Station, Sadar Hisar,

for registration of a complaint against Umed Singh son of Beg

Raj, Dharam Pal son of Beg Raj [Sarpanch] and Dharambir for

the death of Chander Bhan. Accordingly, FIR was filed before the

police being FIR No. 736/ 1994, dated 16.12.1994, based on the

accused A­2.

7. As per the narration of accused A­2, on 16.12.1994, at about

4:30 A.M, the Chander Bhan (deceased), A­2 and A­1 were going

to Chandigarh on foot. On reaching a few kilometers ahead of the

village Sundawas, they spotted a jeep coming towards them. One

of the occupants Umed Singh son of Beg Raj, raised lalkara that

enemies were going and they should be taught a lesson for

helping Maha Singh in the elections. Dharampal and Umed

Singh sons of Beg Raj and Dharambir alighted from the jeep and

Dharam Pal son of Beg Raj, who was armed with a pistol, shot

Chander Bhan in his stomach and ran away. It is alleged that A­

1 and A­2, who escaped the firing, rushed Chander Bhan to the

City Civil Hospital, Hisar, where he succumbed to his injuries.

4

8. The case was investigated by I.O. Bhim Singh [PW­15], who

reached the spot of the alleged occurrence as per the narration of

accused A­2. However, he could not trace any incriminating

material as alleged. Being suspicious of the version of accused A­

2, the investigating police, started to investigate from different

angles.

9. On 25.12.1994, all the accused­appellants contacted one Zile

Singh [PW­16] and confessed their guilt before him. To put the

gist of their extra­judicial confessions, it may be noted that the

accused stated to Zile Singh (PW­16) that having the motive to

file a counter case against Dharampal son of Beg Raj, the

Sarpanch, the accused­appellants along with Chander Bhan

reached an abandoned house in Adarsh Nagar, Hisar and Suresh

[A­3] fired a shot at Chander Bhan in the house at Adarsh Nagar.

Thereupon accused A­3 fled away with the gun. Later, accused

A­1 and A­2 took Chander Bhan to the hospital and registered a

false complaint against Dharampal son of Beg Raj, Dharambir

and Umed Singh son of Beg Raj under Section 302, IPC. 5

10. It may be noted that Zile Singh produced all the accused before

the Police and thereafter the accused identified the place of

occurrence. By virtue of such disclosure statements made by the

individual accused persons, the police are alleged to have

recovered a licensed gun, cartridges, pellets, some concrete

material from the khurli found in the house at Adarsh Nagar,

Hisar. Based on the aforesaid complaint, Bhim Singh, S.I to the

P.S Sadar, Hisar, registered a case under Sections 25, 30, 54 and

59 of Arms Act, being FIR No. 743 [Ex. PZ/1], against Lachman

Singh [A­4] and A­3.

11. After the completion of the investigation, charge­sheets came to

be filed in the Court against the accused A­1, A­2 and A­3 for

offences under Section 302 read with Section 34 of IPC and

accordingly, were summoned by the Addl. Sessions Judge on

10.10.1995 [in Criminal Case No. 76­1­0802 of 1995 (Sessions

Case No. 60 of 1995 in Sessions Trial No. 22 of 1995)]. In a

connected case of FIR No. 743, the accused A­3 and Lachman (A­

4) were being tried for usage of fire arms, which was consolidated

6 with the main case, by order dated 19.09.1999 and both the

cases were tried together. During the trial, the Prosecution

examined 17 witnesses and the Defense examined 4 witnesses in

the Sessions Case No. 60 of 1995. It may be noted here that the

accused examined themselves as defense witnesses under

Section 315 of Code of Criminal Procedure, 1973 [herein after

referred as ‘CrPC’ for brevity].

12. The Trial Court in Sessions Case No. 60 of 1995 in Sessions Trial

No. 22 of 1995, by order dated 12.02.2002, found the accused

guilty of committing the crime and convicted them for the

offences punishable as under­

ACCUSED CHARGES CONVICTION Sobhat S. 302/34 RI for Life and fine of Rs Singh [A­ IPC 5,000. In default, to suffer 2] RI for 6 months [1] S. [1] RI for Life and fine of Rs 302/34 IPC 5,000. In default, to suffer [2] S. 25 RI for 6 months.

Suresh Arms Act [2] RI for 1 year and fine of [A­3] Rs 500, In default, to undergo RI for 15 days. Sentence to run concurrently.

Lachman S. 30, Arms Fine of Rs 1,000. In default, [A­4] Act to suffer RI for 15 days.

7 It may be noted, that during the trial, accused A­1 died and the

trial against him got abated. The Trial Court, held the accused

guilty, and reasoned as under­

a) The motive is proved, wherein the crime was staged so as to falsely implicate Sarpanch Dharampal belonging to opposite political faction.

b) That the accused portrayed a fake story and filed a FIR against Dharampal, Umed Singh sons of Beg Raj and Dharambir alleging that they have murdered Chander Bhan. However, no evidence was found against Dharampal, Umed and Dharambir at the place of occurrence as described by accused A­2.

c) There was no motive for Dharampal, Umed Singh and Dharambir to murder Chander Bhan. Rather, a motive exists on the part of the accused, since their candidate had lost the election.

d) Inference was drawn that the probability of causing injuries to Chander Bhan by A­1 and A­2 was relatively higher.

e) That PW­14, Umed Singh son of Mahi Ram, had seen the accused with the deceased early in the morning when they had a small conversation and that the Umed Singh (PW­14) had noticed that Suresh was holding a single barrel gun.

f) That the version of accused A­2 was not tenable due to many contradicting circumstances.

g) That the accused had confessed their crime before Zile Singh (PW­16), who later produced the accused before the Police on 25.12.1994.

h) That the disclosure statements made by the accused appellants herein, before the police, led to the recovery of the licensed gun and pellets.

8

i) The FSL Report concludes that the pellets which were recovered from the Khurli as per such disclosure were similar to those found in the dead body.

j) The Post­mortem report confirms the death to have been caused due to hemorrhage and shock due to gunshot injuries.

13. Aggrieved by the fact that the complainant was himself shown as

an accused by the investigating authority, A­2 filed a complaint

before the Magistrate against the Dharambir, Umed Singh son of

Beg Raj and Dharam Pal son of Beg Raj, on the facts as revealed

by accused A­2 in FIR No. 736 dated 16.12.1994.

14. Accordingly, the Magistrate separately took cognizance and

committed the case to the Sessions Court against Dharambir,

Umed Singh son of Beg Raj and Dharam Pal son of Beg Raj, on

25.01.1997 [in Complaint Case No. 95­1 of 1995 (Sessions case

No. 62 of 1997] under Sections 302 read with 34 of IPC. Further

by order dated 05.03.1997, the Sessions Judge ordered the trial

of all the cases to take place simultaneously. All the accused

pleaded not guilty and claimed to be tried.

9

15. In Sessions case No. 62 of 1997, the Sessions Court by order,

dated 12.02.2002, acquitted Dharampal son of Beg Raj, Umed

Singh son of Beg Raj and Dharambir on the following reasons­

a) That prosecution failed to establish motive on the part of accused­Dharampal son of Beg Raj, as he has already won the election.

b) That accused persons came at midnight ­ 15.12.1994 ­16.12.1994, called the deceased and told him that they had to shoot somebody so as to falsely implicate Sarpanch Dharampal son of Beg Raj in a case as corroborated by the evidence of DW­1 (Kamla).

c) That the story of the prosecution that the deceased was shot on the road at a distance of 1­1/2 K.M. from village by the accused Dharampal son of Beg Raj is uncorroborated in the absence of any incriminating evidence in the said crime scene, as supported by the evidence of DW­5 Bhim Singh.

d) That DW­2 Umed Singh corroborated that on 16.12.1994 at about 4:30 A.M. while waiting for conveyance to go to his village he had seen Sobhat Singh, Dharampal son of Nanak Ram and the Suresh who was carrying a single barrel gun along with the deceased in an auto­rickshaw.

e) The complainant had taken deceased to the Hospital at 6:

30 AM. In cross­examination Sobhat Singh (PW­4/A­2) and Dharampal (PW­5/A­1) could not explain when the deceased received injuries or why did they not take the deceased to the nearby hospital.

f) That complainants further failed to explain in their cross­ examination how the three­wheeler appeared merely within five­minutes to take them to the Hospital at Hisar.

g) The evidence of PW5­Dharampal son of Nanak Ram, is contradictory to PW­4 (Shobat Singh [A­2]) as to how they took the deceased to the hospital.

10 h) That the complainants failed to state the number of vehicle, driver of the vehicle in their cross­examination. They have also failed to explain why they did not immediately report the matter in the village and to the family members of the deceased when they were just at a distance of 1­1/2 km from the village.

i) That extra­judicial confession was made before DW­3 (Zile Singh).

j) That the gun recovered in the instant case was the gun belonging to complainant Suresh [A­3] and FSL report available on record proves that the pellets found in the body of the deceased were similar to those fired from that gun.

k) Therefore, the prosecution failed to prove a case beyond reasonable doubt against the accused. So, all the accused were acquitted of the charge against them.

16. Aggrieved by the judgments of the Trial Court, in Session Case

No. 60, accused A­2, A­3 and A­4 filed Criminal Appeal No. 273­

DB, 157­DB, 920­SB respectively before the High Court. On the

other hand, accused A­2 filed a Criminal Appeal No. 751­DBA of

2002, against the acquittal, of Dharampal son of Beg Raj, Umed

Singh son of Beg Raj and Dharambir, passed by the Sessions

Court in Sessions Case No. 62 of 1997. It may be noted that the

High Court clubbed all the appeals and dismissed them through

a common impugned judgment dated 03.01.2012. The High

Court had further directed accused A­2 and A­3 to pay a sum of

11 Rs. One Lac as damages to Smt. Kamla and her two children.

17. The High Court while upholding the conviction emphasized

following grounds­

a) That it was admitted by accused A­2 and A­1 that they had called for Chander Bhan at his house, in the presence of his wife, on 16.12.1994.

b) That the evidence produced by the I.O indicates that the accused took Chander Bhan to a room in Adarsh Nagar, Hisar, where he was shot by accused A­3 using his single barrel gun.

c) The accused­appellants had confessed to their crime, which led to the recovery of certain incriminating articles.

d) Sufficient evidence is on record like recovery of pellets, gun and some concrete material etc. to prove that Chander Bhan was shot inside that Kotha (Room) by the accused and not by the other gang, as alleged.

e) There was a crystal­clear motive on the part of the accused A­ 2 to commit such crime so as to implicate Dharampal son of Beg Raj (Sarpanch) in a false case.

f) Apart from the testimony of wife­Kamla and the recovery of the incriminating materials, the evidence of PW 14 (Umed Singh), who deposed that he had seen the accused along with Chander Bhan (deceased) earlier that morning with Suresh was also a major circumstance going against the accused.

g) Lastly, the extra judicial confession made before Zile Singh (PW­16), is found to be true and voluntary and since PW­16 is an independent witness, his evidence cannot be doubted.

h) The chain of circumstances are complete so as to bring home the guilt of the accused.

i) Further, the gun used was a licensed gun which belonged to Lachman, father of A­3, who had allowed the gun to be taken from his custody and misused by his son. Hence, the conviction under Arms Act was also justified.

12

18. Aggrieved by the judgment and order of conviction passed by the

High Court, accused A­2 and A­3 have preferred Criminal Appeal

No (s). 1445­1446 of 2012 (arising out of SLP (Crl.) No (s). 2868­

2869 of 2012) in Sessions Case No. 60 of 1995 in Sessions Trial

No. 22 of 1995. Further accused A­2 preferred a Criminal Appeal,

being Criminal Appeal No. 1458 of 2012 (arising from SLP (Crl.)

No. 2926 of 2012), against the acquittal of Dharampal son of Beg

Raj, Umed Singh son of Beg Raj and Dharambir in Sessions Case

No. 62 of 1997 in Sessions Trial No. 97 of 1997.

19. Learned senior counsel, Ms. Anjana Prakash, appearing on behalf

of the appellant accused has mainly contended as under­

a) That the case involves no direct evidence and the chain of circumstantial evidence is not complete; therefore, the conviction of the appellants on the basis of unfounded evidence should not be sustained.

b) That PW­13 (wife of the deceased), when materially confronted, denied the statement that she had stated to the police that accused A­1 and appellant accused A­2 had told the deceased that they had to fire a shot at somebody to implicate Sarpanch Dharampal son of Beg Raj.

c) That PW­14 presence at spot is doubtful. He made out an illogical story that while waiting for conveyance to go to his village at 4:00 AM, he had seen the appellant and Dharampal with the deceased. But in Cross examination he was not able to explain why he was waiting for the conveyance 3½ hours 13 early, especially when the first bus for his village leaves at 7:30 AM.

d) That PW­14 has also admitted that he did not tell PW­13 that he had seen accused persons carrying gun along with the deceased in the said auto­ rickshaw. PW­14 inter alia has also admitted that he and PW­16 had injured the deceased at an earlier point of time and denied the fact that brother of PW16 had fired upon the deceased.

e) That alleged extra­judicial confession made on 25.12.94 before PW­16 is not admissible on the ground that it was made under suspicious circumstances. PW­16 inter­alia, also admitted that Maha Singh had defeated him previously in the Sarpanch election; therefore, election rivalry is evident against accused persons.

f) That if the accused persons were arrested on 18.12.94, then the question of alleged extrajudicial confession made on 25.12.94 before PW16 casts doubt in the prosecution story.

g) That the FIR was lodged by the appellants and it is also an admitted fact that it was the appellant­accused who had brought the injured at the hospital for treatment.

h) That the gun recovered in the instant case is the licensed gun of the father of the accused Suresh and there is no forensic evidence available on record to prove that pellets found in the body of the deceased was fired from that gun.

i) That the motive plays an important role in a case of circumstantial evidence. In the present case there is no strong motive that can be inferred on the part of accused person on the ground of election rivalry.

j) That the role of investigating officer is doubtful in this case as there are contradictions in respect of the date of arrest of the accused persons. As the IO stated that he had found evidence against appellants within two days of occurrence but denied arresting them then. However, from the materials on record it is evident that date of arrest of accused persons is on

14 18.12.1994. That it can be said that IO is exonerating the actual accused and falsely implicating the appellants.

20. On the Other hand, learned counsel appearing on behalf of the

State, Dr. Monika Gusain, while supporting the judgment of the

lower courts, has drawn our attention to the fact that the

accused, were hard core criminals, who would not stop short of

killing their own for political rivalry. She has also contended that

the recovery at the place in Adarsh Nagar bolsters the case of the

prosecution. She argues that if for a moment, the version of

accused A­1 is taken into consideration, then there was no

question of taking the deceased to a Hospital 24 KM away in

Hisar, while there was a Hospital near the vicinity of the alleged

crime scene.

21. Having heard the Learned counsel for either side and given

our anxious consideration to the facts and circumstances of the

case on hand, at the outset, it would be apt to observe certain

statements of prosecution witnesses, on whose evidence the

courts below have excessively placed reliance. For this purpose,

it would be necessary for us to deal with the two cases

separately. First, we would like to take up the Criminal Appeal 15 NO. 1445­1446 OF 2012 and thereafter consider Criminal Appeal

No. 1458 of 2012.

22. PW­1(Dr. Bishnoi), SMO General Hospital, Tohana, deposed that

he was the person, who conducted the post­mortem of the

deceased. Regarding the nature of the injury, he states that­

Multiple rounded and oval shaped wounds of the size of 1/3 cm into 1/3 cm present on the front of trunk and pelvic area along with upper part of the front of both thighs numbering about (50). Majority of these wounds were present on the left side of front part of the body. These were covered with clotted blood with inverted margins with lacerations. No blackening or tattooing were present. … All structures in the pelvic and in the lower abdomen including small and large intestine and vessels were injured. Abdominal cavity was full of red colored blood.

Further he has deposed that the death of Chander Bhan

(deceased) resulted because of hemorrhage, and shock due to

gun­shot injuries. All injuries were opined to have been ante­

mortem in nature and sufficient in the usual course to cause

death.

23. PW­2 (Dr. Surinder Singh), Medical Officer, who treated the

Chander Bhan (deceased) at the Hospital. He avers that from the

perusal of the bed­head ticket, the Chander Bhan (deceased) was

16 brought to the Hospital at Hisar, by accused A­1 and A­2. It is

important to note that the deceased was brought in a semi­

conscious state to the Hospital.

24. PW­ 13 ­ Smt. Kamla, widow of deceased Chander Bhan states

that on 15.12.1994, an election was held in the village of

Sundawas, wherein the deceased Chander Bhan, was an election

agent for Maha Singh. She deposed that persons in support of

Maha Singh, supposedly fired gun shots and the supporters of

Dharampal son of Beg Raj, allegedly had received injuries in the

aforesaid firing. In the intervening night of 15­16 th, A­1 and A­2,

came to meet the deceased Chander Bhan. She states that her

husband had enquired with the aforesaid accused, who had

revealed to him that they had to go to Hisar and had to shoot

somebody so as to involve Dharampal son of Beg Raj in a false

case. In that pretext she states that all the three accused (A­1, A­

2 and A­3) and Chander Bhan (deceased) left for Hisar.

25. It may be of some significance to note that, during her cross

examination, she states as under­

I had told in my statement to the police that accused Dharma and Sobhat has told my husband

17 that somebody was to be fired at. I had told the police in my statement that accused Dharma and Sobhat had told my husband that they would fire shots at their own brother in order to involve Dharampal Sarpanch.

Appellant­accused has extensively placed reliance on the

aforesaid statement, to point that the statement of PW­13 was

ridden with improvements, which questions the reliability and

credibility of her statements. The consequence of the same, will

be discussed at a later stage.

26. PW­14 (Umed Singh son of Mahi Ram), states that he belongs to

the village of Sundawas. On 15.12.1994, after casting his vote,

he returned to Hisar in the evening for purchase of seed and

fertilizers. Following morning, at about 4 AM, while he was

standing near the Borstal Jail, Hisar, waiting for a bus to go back

to his village Sundawas. Around that time, one auto rickshaw

came from the side of Hisar City and stopped near him. The

occupants of the auto­rickshaw were accused A­1, A­2, A­3 and

Chander Bhan. He states that accused A­3 was holding a single

barrel gun in his hand. When the occupants enquired about him,

he replied to them that he was waiting for the conveyance to go

18 back to his village and the occupants of the auto supposedly told

him that they were going for some urgent work.

27. PW­15­ Bhim Singh, the Investigating Officer has deposed that

accused A­2 had registered a complaint against Umed Singh,

Dharampal sons of Beg Raj and Dharambir on the grounds that

they have shot the deceased Chander Bhan on account of prior

rivalry. He further deposed that in furtherance of the enquiry, on

reaching the alleged scene of the crime, he did not find any tyre

marks of the jeep or any incriminating marks whatsoever. It may

be noted that his evidence is a crucial link to portray that the

case of false prosecution against the winning candidate

Dharampal son of Beg Raj was given full effect by misleading the

police authority as to the scene of the incident. He further

recorded the statement of PW­13­Smt. Kamla and found out that

on 16.12.1994 the accused A­2 and A­1 came to the house of the

deceased at around midnight and took Chander Bhan on the

pretext that since Maha Singh had lost the election and was

involved in a criminal case, hence they should falsely implicate

19 Sarpanch Dharampal son of Beg Raj, by registering a counter

case against him.

28. PW­15 further deposed that PW­14 informed that while Umed

Singh (PW­14) was waiting at Borstal Jail, Hisar for conveyance

at 4:00 A.M on 16.12.1994, he had seen that accused A­1, A­2,

deceased Chander Bhan and A­3 were going for some urgent

work and that he had also noticed A­3 holding a single barrel

gun.

29. Furthermore, PW­15 had also deposed that later, on 25.12.1994,

PW­16, Zile Singh had produced the accused before him where

he recorded the statement of Zile Singh with regard to the extra

judicial confession made to him by the accused. It may be

relevant to note PW­15 in the examination­in­chief states that

the Zile Singh (PW­16), left the Police Station and did not wait till

the completion of the interrogation. Whereas, in the cross­

examination he contradicts himself that Zile Singh (PW­16) was

present during the interrogation of the appellant­accused. PW­15

also deposed that by virtue of the disclosure statements made by

the individual accused persons, the recovery of the gun,

20 cartridges, pellets and some concrete material from room and the

khurli of the Adarsh Nagar House were made.

30. PW­16 (Zile Singh), deposes that on 25.12.1994, when he had

come to the village Sundawas, accused A­1, A­2 and A­3 had

confessed before him by detailing the modus operandi of the

crime and subsequent cover­up of the incident. Thereafter, he

states that he handed over the accused to the police for

interrogation and the interrogation was conducted in his

presence. At the appropriate stage, we will examine the relevance

of the aforesaid confession made before Zile Singh (PW­16) and

its impact on the prosecution’s case.

31. As regards to the evidence of other witnesses who supported the

prosecution case, PW­17, Mewa Singh, is the panch witness for

the seizures made by the police from crime scene. He deposed

that on 25.12.1994, he went to the police station along with one

Sant Lal on getting the information that the real culprits in

Chander Bhan's murder case have been arrested. He further

deposed that I.O. Bhim Singh interrogated the accused in his 21 presence. That during such interrogation, accused A­1 and A­3

pointed out that they will be able to show the scene of the crime

as well as the hidden gun. He had further deposed that he and

Sant Lal were witnesses to the subsequent recoveries made by

the investigating officer.

32. After having appreciated the evidence of certain crucial witnesses,

we would like to clarify at the outset that this is a case of

circumstantial evidence. Jurisprudentially the meaning of

circumstantial evidence has never been settled. Although we may

not require a detailed analysis of the jurisprudential dichotomy

which exists as to what amounts to ‘circumstantial evidence’, we

may indicate certain precedents and legal literature have given a

definite shape for the aforesaid term. In Thomas Starkie, A

Practical treatise on the law of evidence, and digest of

proofs, in civil and criminal proceedings (vol. I, 4 th Eds.,

1876), it is said that­

"In criminal cases, proof that the party accused was influenced by a strong motive of interest to commit the offence proved to have been committed, although exceedingly weak and inconclusive in itself, and although it be a circumstance which 22 ought never to operate in proof of the corpus delicti, yet when that has once been established aliunde, it is a circumstance to be considered in conjunction with others which plainly tend to implicate the accused".

Sir Fitz James Stephen, while writing his Introduction to Indian

Evidence Act, 1872, writes as under­

Facts relevant to the issue are facts from the existence of which inferences as to the existence of the facts in issue may be drawn.

A fact is relevant to another fact when the existence of the one can be shown to be the cause or one of the causes, or the effect or one of the effects, of existence of the other, or when the existence of the one, either alone or together with other facts, renders the existence of the other highly probable, or improbable, according to the common course of events.

Wharton's Criminal Evidence (1955)­ "In prosecutions for homicide, as in criminal prosecutions generally, evidence to show motive is competent and considerable latitude is allowed in its introduction. When proof has been made of the corpus delicti, all facts and circumstances that tend to show motive on the part of the accused are relevant".

33. Peacock v. The King, 13 CLR 619, expounded the circumstantial

evidence to mean­

Whether the fact, or that body of facts which is called the 'case' is capable of bearing a particular 23 inference, is for the Court, and unless it is so capable, the Court's duty is to withhold it from the jury, as a single fact or as a case. But when the case is undoubtedly capable of the inference of guilt, albeit some other inference or theory be possible, it is for the jury, properly directed, and for them alone, to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds.

34. In Anant Chintaman Lagu v. State of Bombay, AIR 1960 SC

500, this court defined circumstantial evidence­

Circumstantial evidence in this context means, a combination of facts creating a network through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt.

35. In line with the aforesaid definition, this Court in catena of cases

has expounded the test of ‘complete chain link theory’ for the

prosecution to prove a case beyond reasonable doubt based on

the circumstantial evidence. In Hanumant and Others v. State

of Madhya Pradesh, AIR 1952 SC 343 [hereinafter referred as

‘Hanumant Case’ for brevity], this Court explained one of the

24 possible ways to prove a case based on circumstantial evidence,

in the following manner ­ in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should 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.

36. It was for the first time that this Court formulated a test

concerning circumstantial evidence. Subsequently, the aforesaid

test was applied on multiple occasions by this Court in

Deonandan Mishra v. State of Bihar, AIR 1955 SC 801,

Govinda Reddy v. State of Mysore, AIR 1960 SC 29.

37. In Charan Singh v. State of Uttar Pradesh, AIR 1967 SC 520,

this Court expounded the proposition laid down in Hanumant

Case (supra), and observed as under­

It is well established that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and the circumstances so established should be consistent only with the hypothesis of

25 the guilt of the accused person; that is, the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved. To put it in other words, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person.

We may note that this Court for the first time explained the

general test applicable for evaluating circumstantial evidence and

brought in the concept of ‘completion of chain of evidence’.

38. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR

1984 SC 1622. Therein, while dealing with circumstantial

evidence, it has been held that the onus was on the prosecution

to prove that the chain is complete and the infirmity or lacuna in

the prosecution cannot be cured by a false defense 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 ­

(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 merely ‘may be’ established;

26 (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 complete 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.

The aforesaid tests are aptly referred as ‘Panchsheel of proof in

Circumstantial Cases’ [refer Prakash v. State of Rajasthan, AIR

2013 SC 1474]. The expectation is that the prosecution’s case

should reflect careful portrayal of the factual circumstances and

inferences thereof and their compatibility with a singular

hypothesis wherein all the intermediate facts and the case itself

are proved beyond reasonable doubt.

39. Circumstantial evidence are those facts, which the court may

infer further. There is a stark contrast between direct evidence

and circumstantial evidence. In cases of circumstantial evidence, 27 the courts are called upon to make inferences from the available

evidences, which may lead to the accused’s guilt. In majority of

cases, the inference of guilt is usually drawn by establishing the

case from its initiation to the point of commission wherein each

factual link is ultimately based on evidence of a fact or an

inference thereof. Therefore, the courts have to identify the facts

in the first place so as to fit the case within the parameters of

‘chain link theory’ and then see whether the case is made out

beyond reasonable doubt. In India we have for a long time

followed the ‘chain link theory’ since Hanumant Case (supra),

which of course needs to be followed herein also.

40. We need to consider five aspects and their impact on the case at

hand, before we put forth our analysis. It is well settled that

motive is an important aspect in circumstantial evidence case. In

Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55

“In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye­ witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so 28 in cases where there are eye­witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye­ witness is rendered untrustworthy”.

In this case the motive has an important role as this case is

based on circumstantial evidence, motive herein forms one of the

intermediate fact/circumstances. In this case, the motive of

killing Chander Bhan (deceased) was to foist a false case on

Dharampal son of Beg Raj. If the motive was to foist a false case,

then it is quite strange to believe that the accused went to the

extent of killing their own (supporter of Maha Singh) to avenge

the loss in the elections. Even if the motive is taken to be proved,

then this too only forms one of the circumstances for adducing

the guilt of the accused.

41. The credibility of the witnesses, which the prosecution mainly

relies on to prove the case on the basis of the circumstantial

evidence is an important aspect. In this case the evidence of PW­

13 (wife of the deceased) is crucial. Her statements should be

carefully appreciated. The statements, as indicated above, clearly

29 portray that there were material improvements in the statements,

which makes her statement unreliable and doubtful. The

vindictive statements which were made during the cross

examination, clearly bars us from taking her testimony into

consideration. There is no dispute that there was prior enmity

between the wife and the accused appellants, which makes her

statements unreliable. It is revealed from her evidence that, even

though she knew that her husband was taken for shooting

somebody, she kept quiet and did not stop her husband from

accompanying the accused. Such behavior would be suspicious

as it does not fit with the natural human behavior to inspire any

confidence.

42. Although this Court, on number of occasions, reiterated that mere

relationship with the deceased will not be sufficient to discredit a

witness, in the present circumstances, it is apparent that the

wife was an interested witness due to earlier enmity between the

accused. Hence, we are of the considered opinion that the

aforesaid witness does not inspire confidence for us to rely on the

same.

30

43. Coming to the testimony of the PW­14 (Umed Singh), the defense

has tried to exposé the aforesaid witness on certain

contradictions and improvements, which needs our

consideration. At the outset, they question the presence of the

aforesaid witness at Hisar, as the veracity of him being a chance

witness is questionable. Learned senior counsel for the accused­

appellant, has strenuously contended that PW­14 is a chance

witness, and contends that not much reliance may be placed on

his statement.

44. Generally, the chance witness, who reasonably explains his

presence in the named location at the relevant time, may be

taken into consideration and should be given due regard, if his

version inspires confidence and the same is supported by

surrounding circumstances. Nonetheless, the evidence of a

chance witness requires a very cautious and close scrutiny. A

chance witness must adequately explain his presence at the

place of occurrence [refer Satbir v. Surat Singh, (1997) 4 SCC

192; Harjinder Singh v. State of Punjab, (2004) 11 SCC 253]. Deposition of a chance witness whose presence at the place of

31 incident remains doubtful should be discarded [refer

Shankarlal v. State of Rajasthan, (2004) 10 SCC 632]. The

behavior of the chance witness, subsequent to the incident may

also be taken into consideration particularly as to whether he

has informed anyone else in the village about the incident. [refer

Thangaiya v. State of Tamil Nadu, (2005) 9 SCC 650].

45. It may be noted that the (PW­14) has not explained as to why he

was standing near the Bristol Prison so early at 4:00 AM in the

morning of a peak winter day, when the first bus to the village

was at 7:00 AM. Moreover, it is doubtful that A­3 would have

brandished a gun, while travelling in the auto­rickshaw. It is

suspicious that even after getting to know that Chander Bhan

was killed at Hisar, PW­14 did not reveal to anybody that he saw

the deceased in the company of the accused­appellant in the

morning travelling towards Hisar. Indeed, it is quite unbelievable

that a man, during peak of north Indian winter, would wait at 4

A.M for a bus, which is scheduled to leave at 7:00 AM morning.

These suspicious circumstances impugn the general

32 trustworthiness of PW­14. Therefore, this Court cannot accept

the evidence of this witness as being credible.

46. Now coming to the evidence of Zile Singh (PW­16). He narrates

that the three accused met him in the bus stop on the morning of

25.12.1993, when they confessed to their crime individually. We

may note that his statements are ridden with following un­

clarified doubts­

a. That the Zile Singh (PW­16) accompanied the accused, after they confessed, from the bus stand to the police station.

b. Not taking the accused to the Police personnel present in the Bus stand.

c. That his presence in the police station itself is suspicious as the I.O. Bhim Singh (PW­15) has contradicted Zile Singh (PW­16) on this aspect.

d. That there is no signature of Zile Singh (PW­16) on any of the documents in the Police Station.

In light of these circumstances, we need to be cautious in

considering the statements of this witness.

47. Now we need to concentrate on the relevance of the alleged

confessions of the co­accused made before Zile Singh (PW­16). In

Re Periyaswami Moopan, AIR 1931 Mad. 177, Reilly J.

33 observed “where there is evidence against the co­accused

sufficient, if believed, to support his conviction, then the kind of

confession described in Section 30 may be thrown into the scale

as an additional reason for believing that evidence”. Therefore, the

aforesaid extra­judicial confession against the co­accused needs

to be taken into consideration if at all it is one, only if other

independent evidence on record have established the basic

premise of the prosecution. The confession of the co­accused

cannot be solely utilized to convict a person, when the

surrounding circumstances are improbable and creates

suspicion. [refer Haricharan Kurmi v. State of Bihar, AIR 1964

SC 1184]. As the confession of a co­accused is weak piece of

evidence, we need to consider whether other circumstances prove

the prosecution’s case.

48. On the aspect of recovery of pellets from a house at Adarsh Nagar,

Hisar, it is an argument of the learned senior counsel, appearing

on behalf of the appellant accused, that the FSL Report

indicating the possibility of pellets being fired from the gun

recovered from the confession of accused A­3, should not be

34 considered as the person, who made the report was not

examined­is of some relevance. The FSL report forms part of the

evidence, which is shown to point out that the crime had taken

place in the house at Adarsh Nagar, Hisar and gun of 0.15 bore

belonging to A­3 was used for the same. The prosecution was

expected to examine the author of the report, and non­

examination of the same is a fatal error in the case at hand.

Moreover, at the scene of occurrence, there was no blood or foot

marks found, which is apparent from the evidence of PW­8.

49. The last circumstance, pointed out by the learned senior counsel

for appellant is that, if the intention of the accused­appellant was

indeed to murder the deceased, then, why would they take him

to the Hospital. Thereby, she extends this argument, to portray

that the accused, never had an intention to kill the deceased. It

has not been explained by the prosecution, as to why such action

would be undertaken by the accused and risk taking an alive

person, who was shot, to the hospital. The contention of the

State that this was a diabolic act of perverted criminals, may not

fit the evidence available on record.

35

50. In line with the aforesaid discussion on various circumstances,

we may now identify the intermediate circumstances, which we

are called upon to infer guilt from­

1.) On 15.12.1994, there was a local election, wherein main candidates were Maha Singh and Dharampal son of Beg Raj.

2.) Chander Bhan (deceased) was the election agent as well as the supporter of Maha Singh.

3.) On the day of the election, there was a fight between two factions, in which Maha Singh and one Darya were charged for firing gun shots at the supporters of Dharampal son of Beg Raj.

4.) Maha Singh lost the elections, which was known to the accused party as well as deceased.

5.) That Sobhat Singh [A­2], Dharampal son of Nanak Ram [A­ 1] and Chander Bhan (deceased), met on 15 th­16th mid night.

6.) Near Hisar, the Chander Bhan was seen going with the accused around the time of the incident. [of doubtful veracity]

7.) Injured Chander Bhan was alive when he was brought to Hospital in Hisar by Sobhat Singh [A­1] and Dharampal [A­ 2].

8.) Chander Bhan’s body was found to have sustained more than fifty ante mortem gun shot wounds.

9.) Gun and pellets were recovered from an abandoned house in Adarsh Nagar.

10.) Extra­judicial confession recorded before Zile Singh on 25.12.1994.

51. From the aforesaid circumstances, we may note that the

hypothesis canvassed by the prosecution cannot be said to have

36 been proved beyond reasonable doubt as there exist apparent

gaps in the prosecution story, which are left incomplete or

insufficiently proved. In Latesh v. State of Maharashtra, AIR

2018 SC 659, this court had observed the ‘When you consider the

facts, you have a reasonable doubt as to whether the matter is

proved or whether it is not a reasonable doubt in this sense. The

reasonableness of a doubt must be a practical one and not on an

abstract theoretical hypothesis. Reasonableness is a virtue that

forms as a mean between excessive caution and excessive

indifference to a doubt.’ In view of this proposition, we accept

that there is no direct evidence which led the prosecution to

clearly prove that deceased was shot at Adarsh Nagar in Hisar.

Even the circumstantial evidence which is led, has gaps in

between. In the narration above, there is a big hiatus between

the time the accused left the village and the accused­appellants

were seen in the Hospital, at Hisar. Neither the intermediate facts

are established with certainty, nor the case as a whole is

established beyond reasonable doubt.

37

52. We may note that every acquittal in a criminal case has to be

taken with some seriousness by the investigating and

prosecuting authorities, when a case of this nature is concerned.

We are aware of the fact that there has been a death of a person

in this incident and there is no finality to the aforesaid episode as

it ends with various unanswered questions, which point fingers

at the lack of disciplined investigation and prosecution. Although

Courts cannot give benefit of doubt to the accused for small

errors committed during the investigation, we cannot however,

turn a blind eye towards the investigative deficiencies which goes

to the root of the matter.

53. Now, coming to the case foisted against Dharambir, Umed Singh

and Dharampal (sarpanch) sons of Beg Raj, in Criminal Appeal

No. 1458 of 2012 (Sessions Case No. 62 of 1997 in Sessions Trial

No. 97 of 1997). The prosecution had examined PW­1 (Dr. R.S.

Bishnoi), PW­2 (Dr. Surendra Singh), PW­3 (ASI­Jagbir Singh),

PW­4 (Sobhat Singh [A­1]) and PW­5 (Dharampal son of Nanak

Ram [A­2]). While the defense had led DW­1 (Kamla), DW­2

38 (Umed Singh), DW­3 (Zile Singh), DW­4 (Mewa Singh) and DW­5

(Bhim Singh).

54. We have considered the reasoning of the court below in this case,

which we accept. Although this case was foisted to be a case of

direct evidence, there is no credibility in the statements of the

accused­appellant as the surrounding circumstances have

shown, as already indicated in the earlier parts of the judgment,

to be against them. We may note the golden rule of evidence that

‘men may tell a lie, but the circumstances do not’, which is

squarely applicable in this case at hand. Therefore, we cannot

also accept the narrative of the accused­appellant in the other

appeals, as a gospel of truth.

55. In view of the discussion above, we allow the Criminal Appeal

No(s). 1445­1446 of 2012, before us and simultaneously set

aside the conviction and punishment as provided by the Trial

Court in Sessions Case No. 60 of 1995 in Sessions Trial No. 22 of

1995, and dismiss the Criminal Appeal No. 1458 of 2012.

39 Further the concerned authorities are directed to release the

appellants­accused, if not required in any other case.

……………………………..J. (N. V. Ramana)

……………………………..J. (Mohan M. Shantanagoudar) AUGUST 21, 2018 NEW DELHI

40