2023 INSC 679

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos. 1076-1077 of 2015

Krishan Kumar & Anr. …. Appellant(s)

Versus

The State of Haryana .…Respondent

J U D G M E N T

C.T. RAVIKUMAR, J.

1. The appellants who stand convicted under Section

300 read with Section 34 of the Indian Penal Code, 1860

(for short ‘IPC’) for the murder of one Devinder @ Kala,

S/o Sukhbir Singh and sentenced to undergo life

imprisonment therefor, under Section 302, IPC and also

stand convicted under Section 201, IPC read with Section

34, IPC and sentenced to undergo rigorous

imprisonment for two years with default fine, filed the

captioned appeals. They were convicted and sentenced

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as above in Sessions Case No.121/99/2000 and Sessions

Trial No.17/2000 and their conviction and sentences

were confirmed as per the impugned judgment and

order dated 30.07.2014 passed by the High Court of

Punjab and Haryana in C.R.A. No. D-671-DB of 2002 and

C.R.A. No. D-685-DB of 2002.

2. The prosecution case which culminated in their

conviction as above is as follows: -

Devinder @ Kala, a 10+2 student who went to

irrigate his land, was found missing from 25.06.1999. On

26.06.1999 his brother Krishan Kumar (PW-9) lodged a

missing report and subsequently on 28.06.1999 he filed

a complaint wherein he named eight persons viz.,

Ranbir, Balwan, Ram Kanwar, Satpal, Rambir, Samunder,

Narinder and Piare, who allegedly abducted his brother.

On 28.06.1999, body of a young man was found floating

under Western Yamuna Canal Bridge near Samaypur

Badli. The dead body was decomposed and on seeing

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tattoo of Lord Hanuman on the right hand it was identified

as that of Devinder by his brothers Govind and Krishan

Kumar. FIR No.220/99 was registered initially under

Section 364, IPC read with Section 34, IPC in P.S. Rai

Sonepat. Name of the appellants were not mentioned

therein. Later, pursuant to the recording of statements

from PW-10 Mukesh and PW-8 Azad, offences under

Sections 302 and 201 read with Section 34, IPC were

added and the appellants herein were arraigned as

accused.

3. In view of the peculiar context of the case it is

proper and profitable to go through the charges framed

and read over to the appellants, on 15.11.1999. They

read thus: -

“Firstly: That on 25.06.1999 in the area of village

Nahri, you both accused in furtherance of

your common intention kidnapped

Devinder s/o Sukhbir in order that he be

murdered and thus you both hereby

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committed an offence punishable under

Section 364 read with Section 34, IPC and

within the cognizance of this Court.

Secondly: That on the said date at night in the area

of village Nahri you both in furtherance of

your common intention did commit

murder by intentionally causing the death

of Devinder s/o Sukhbir and thereby you

both committed an offence punishable

under Section 302 read with Section 34

IPC and within the cognizance of this

Court.

Thirdly: That on the said dates, time and place you

both in furtherance of your common

intention knowing or having reasons to

believe that certain offence to wit, offence

of murder is punishable with death or

imprisonment for life has been

committed, did cause certain evidence of

the said offence to disappear, to wit,

thrown the dead body in the Delhi wali

canal with intention of screening

yourselves from legal punishment and

thereby you both committed an offence

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punishable under Section 201/34 IPC and

within the cognizance of this Court.”

4. Consequently, they were tried on the above

charges. The necessity and relevance of referring to

charges would be discussed later. On appreciating the

documentary as well as the oral evidence consisting of

testimonies of seventeen witnesses on the side of the

prosecution, the trial Court convicted the appellants

herein based on circumstantial evidence. In the appeals

preferred by the convicts, their conviction and

sentences were confirmed. The revision, being C.R.R.

No.2242/2002, filed by the complainant Krishan Kumar

S/o Sukhbir Singh, heard along with their appeals,

seeking enhancement of their sentence of imprisonment

for life to capital punishment was also dismissed.

Aggrieved by the dismissal of their appeals Krishan

Kumar and Joginder Singh, the convicts have filed the

captioned appeals.

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5. Heard learned counsel for the appellants and

learned Additional Advocate General of the State of

Haryana.

6. A scanning of the impugned judgment and order

would reveal that the conviction of the appellants based

on circumstantial evidence, consisting of evidence of last

seen, extra judicial confession, recovery of weapon of

offence and motive, was confirmed by the High Court.

But, before dealing with the aforesaid circumstances to

consider whether they unerringly point to the guilt of the

appellants in exclusion of any hypothesis as to the guilt

of another person, we will firstly consider whether the

death of Devinder is homicide and if so, whether it is

culpable homicide amounting to murder.

7. As a matter of fact, there is no challenge against the

identification of the body and also against the concurrent

finding that the death of Devinder @ Kala is homicide

and it is culpable homicide amounting to murder. The

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evidence of PW-4 Dr. K. Goel, together with postmortem

report (Ext. PD) was appreciated by the courts below to

come to the said conclusion. The opinion of the doctor is

to the effect that the cause of death is asphyxia due to the

result of pressure over the neck structure s,

subcutaneous bruising, muscular bruising and

subluxation of hyoid bones. They were ante-mortem in

nature caused by pressure over neck during the process

of strangulation by other party. PW-4 further opined that

pressure over neck structure was sufficient to cause

death in the ordinary course of time. This is not at all

under challenge. Therefore, the concurrent finding that

the death of Devinder @ Kala is homicide and that it is

case of culpable homicide amounting to murder, arrived

upon analysis of the aforesaid evidence, is

unimpeachable.

8. When once it is found that the death involved in the

case is culpable homicide amounting murder, the next

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question would be who is/are the culprit(s)? It is to

establish that the appellants are the culprits and for that

the prosecution had relied on the circumstantial

evidence referred to hereinbefore. As noticed

hereinbefore the appellants were found guilty based on

the circumstantial evidence and the first link in the chain

of circumstantial evidence is the ‘last seen’ evidence.

‘Last seen’ as a link in the chain of circumstantial

evidence, would suggest existence of oral testimony of

at least one witness to establish that the deceased was

last seen in the company of the accused. In this context

it is relevant to refer to the following decisions: -

9. In the decision in State of UP v. Satish

1

, this Court

held thus:

“The last seen theory comes into play where the

time gap between the point of time when the

accused and the deceased were seen last alive and

then the deceased is found dead is so small that

1

(2005) 3 SCC 114

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possibility of any person other than the accused

being a part of the crime becomes impossible. It

would be difficult in some cases to positively

establish that the deceased was last seen with the

accused when there is a long time gap and the

possibility of other person coming in between

exists. In the absence of any other positive evidence

to conclude that the accused and the deceased were

last seen together, it would be hazardous to come to

a conclusion of guilt in those cases.”

(Emphasis added)

10. This position was reiterated by this Court in Hatti

Singh v. State of Haryana

2

. A survey on the authorities

on this issue, would reveal that this position is being

followed with alacrity. Bearing in mind the said position

regarding the applicability of the ‘last seen’ theory we

will have to examine the evidence of last seen available

in the case on hand.

2

(2007) 12 SCC 471

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11. As noticed hereinbefore, 17 witnesses were

examined in this case on the side of the prosecution and

the indisputable fact is that none among them had

deposed to have seen the accused and the deceased

together and alive at any particular point of time on the

fateful day much less, to have seen them together and

alive at any time proximate to the occurrence. We do not

think that a detailed discussion or analysis on this issue

is essential to hold that ‘last seen’ theory was totally

inapplicable in the case on hand in view of the following

clear finding of the trial Court, which was not interfered

with by the High Court. In paragraph 10 of the judgment,

the trial Court held thus: -

“Admittedly the deceased was not last seen in the

company of the accused …………”

12. When the categoric finding of the courts below, on

appreciation of the oral testimonies of the prosecution

witnesses is that none of the witnesses had spoken of

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having lastly seen the deceased in the company of the

accused alive and together, there cannot be any reason

to hold that ‘last seen evidence’ is available in the instant

case as a link in the chain of circumstantial evidence

against the appellants.

13. It is to be noted that despite coming into such a

clear finding as above, on appreciation of evidence

evidently, the trial court presumed the presence of the

deceased with the appellants-accused at the fodder

room near Katvawala passage just prior to his death,

relying on certain other circumstances. In paragraph 13

of the judgment the trial Court held thus:-

“No doubt Mukesh, Sarwan, Azad were present at

the time of cremation of the dead body of Devinder

but they did not disclose about the last seen of the

accused with the deceased. In fact, Azad, Daya

Nand, Mukesh and Sahab Singh have not seen the

accused in the company of the deceased on the ill-

fated day. But material discussed above are

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sufficient to show the presence of the deceased with

the accused just prior to his murder.”

(Emphasis added)

14. Conspicuously, this circumstance of ‘last seen’

drawn on interference and not on positive evidence by

the trial Court, but based on other circumstances, was

not analysed and appreciated by the High Court. To wit,

without marshalling and appreciating the evidence to

consider whether the circumstance of ‘last seen’ is

available as a link in the chain of circumstantial

evidence, evidently, the High Court based on the oral

testimonies of PW-10 Mukesh, PW-8 Azad and PW-7

Daya Nand accepted the prosecution story that the

deceased Devinder and Poonam met at the fodder room

near Katvawala passage at about 08.30 pm on

25.06.1999, they were found in a compromising position

by the appellant-convicts and thereafter, the appellant-

convicts snatched the chunni from Poonam and

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strangulated Devinder and caused his death, they put the

dead body in a gunny bag and placed it in the

Ambassador car parked near fodder room and on being

taken the corpse near to Delhi canal it was thrown into

the said canal.

15. It is in the aforesaid context that the specific

charges framed against the appellants, as extracted

above, would assume relevance. Evidently, the very

first charge framed against the appellants, as extracted

hereinbefore, was under Section 364 read with Section

34, IPC. The phrase ‘common intention’ used in Section

34, IPC implies a pre-arranged plan and acting in

concert to the plan. In the decision in Badruddin v. State

of UP

3

this Court held thus:-

“Though establishing common intention is a difficult

task for the prosecution, yet, however difficult it may

be, the prosecution has to establish by evidence,

whether direct or circumstantial, that there was a

3

(1998) 7 SCC 300

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plan or meeting of mind of all the assailants to

commit the offence, be it pre-arranged or on the

spur of the moment but it must necessarily be before

the commission of the crime.”

A bare perusal of Section 364, IPC would reveal

that to establish an offence under this Section it must be

proved that the person charged with the offence had the

intention at the time of kidnapping or abduction to

murder or to dispose of as to be put in danger of being

murdered. (See the decision in Gopal & Ors. v. State of

Tamil Nadu)

4

.

16. We have referred to the first charge framed against

the appellants under Section 364 read with Section 34,

IPC only to indicate that the case of the prosecution,

going by the first charge, was that the appellants in

furtherance of their common intention kidnapped

Devinder to commit his murder. In the contextual

situation it is apposite to refer to the decision of a

4

(1986) 2 SCC 93

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Division Bench of High Court of Delhi in State v. Sushil

Sharma

5

. It was held therein thus:-

“It is well settled that in criminal cases there is no

room for conjectures and surmises. The prosecution

is supposed to establish its case as it put forth by it

and if the case is disbelieved on any aspect by the

Court then the Court cannot make out a new case on

its own for the prosecution.”

17. We agree with the aforesaid proposition. As a

matter of fact, in the appeal which arose from the

judgment in Sushil Sharma’s case (supra) this Court only

commuted the capital sentence to life sentence. We are

not oblivious of the fact in the instant case though the

prosecution did not establish its case as is put forth it

cannot be said that the Court on its own made out a new

case for the prosecution. In the instant case the trial

Court, in its judgment held thus: -

“However, the offence under Section 364/34 is not

made out against the accused as the prosecution

5

2007 (94) DRJ 777 (DB)

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has not led any evidence qua this offence. Hence,

the accused are acquitted for the offence under

Section 364/34, IPC.”

(Emphasis added)

18. It is a fact discernible from the judgment of the trial

Court as also that of the High Court whereunder the trial

Court’s judgment was confirmed that no consideration

was spared about this aspect. It is evident from the

aforementioned recital from the trial Court’s judgment in

this case though a specific charge was framed under

Section 364 read with Section 34, IPC the prosecution

had not chosen to adduce evidence and virtually

abandoned such a case. Relying on the evidence of PWs

7 to 10 a totally different case was developed and

attempted to be proved by relying on evidence of last

seen, recovery of weapon viz., chunni, motive and extra

judicial confession. As a result, a case carrying

accusation of a pre-arranged plan based on common

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intention to kidnap/abduct for committing murder was

turned into a case of commission of murder based on

motive occurred at the spur of the moment upon the

alleged sight of the appellants’ sister with deceased

Devinder in a compromising position. In short, the

prosecution had not cared to establish the charge

framed against the appellants under Section 364/34, IPC

and despite that it went on to put forth another case, as

above.

19. Despite the aforesaid very infirmity, the courts

have not taken due care and caution to analyse and

appreciate the evidence of the prosecution. The raison

d’etre for our remark would come to the fore on a bare

perusal of the appreciation of evidence undertaken in

the instant case. We have already found that even after

finding that none had seen the deceased lastly in the

company of the accused the trial Court held that the

materials discussed viz., the evidence of PW-7, PW-8 and

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PW-10 would be sufficient to show the presence of the

deceased with the accused just prior to his murder.

20. Before appreciating the oral testimonies of PW-10,

PW-8 and PW-7 and the manner of their appreciation by

the courts below we think it apposite to consider the

question whether the ‘last seen theory’, in its application,

could brook presumption as to the presence of the

deceased along with the accused just prior to the

occurrence, as drawn by the trial Court, in the absence

of positive ocular evidence of prosecution witnesses of

having seen the deceased in the company of the accused

together and alive at a time proximate to the occurrence.

21. We have absolutely no hesitation to answer it in the

negative as otherwise the application of the theory of

‘last seen’ in the absence of any other positive evidence

to conclude that the accused and the deceased were last

seen together would be hazardous, as held in Satish’

case (supra). Its indirect application is also

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impermissible. In this context, the decision of this Court

in Hatti Singh’s case (supra) also has relevance. In that

case it was held that unless the time gap between the

deceased having been seen lastly in the company of the

accused persons and the murder, is proximate it would

be difficult to prove the guilt of the accused only on that

basis. Furthermore, it was held that the last seen theory

would come into play where the time gap between the

point of time when the accused and the deceased were

last seen alive and the deceased was found dead is so

small that a possibility of any person other than the

accused being the author of the crime would become

impossible. Above all, it was held that even in such a

case Court should look for some corroboration. The

same view was reiterated by this Court in the decision in

Chattar Singh & Anr. v. State of Haryana

6

.

6

AIR 2009 SC 378/ (2008) 14 SCC 667

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22. We will now refer to the other circumstances relied

on by the Courts, virtually, to presume the presence of

the deceased and accused at the same point of time in

the fodder room near Katvawala passage in the evening

of 25.06.1999. We may hasten to add that the High Court

had not discussed the correctness or otherwise of the

said presumption drawn by the trial Court and even

without such an exercise, relied on the other

circumstances to confirm the conviction. Firstly, the trial

Court relied on the oral testimony of PW-10. PW-10

Mukesh deposed that he was a friend of deceased

Devinder and that on 25.06.1999 at about 2.00 pm when

he along with Devinder and one Sarwan were indulged

in gossiping at the house (ghar) of Sukhbir Singh (father

of Devinder), Devinder divulged his love affair with

Poonam and also about her promise to meet him in the

evening on that day at the fodder room near Katvawala

passage. He also deposed that at about 08.30 pm when

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he was returning home from field in his tractor, he saw

both the appellants viz., Joginder Singh and Krishan

Kumar going towards the fodder room. We may hasten

to note here that a scanning of the deposition of PW-10

would, however, reveal that after confronting him with

Ext.DD (his previous statement) contradictions/

omissions that militate against the core of the

prosecution case were brought out. As relates the place

towards which the appellants were seen going at about

08.30 pm on 25.06.1999 he stated during chief -

examination that while returning from the field by about

08.30 pm he saw the appellants going towards the fodder

room near to Katvawala passage. However, while being

confronted with Ext.DD during his cross-examination it

was brought out that the location of his seeing the

appellants at about 08.30 pm on 25.06.1999 as ‘fodder

room near to Katvawala passage’ was not stated to the

police. This cannot be taken as a mere omission as it

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militates against the core of the prosecution case that

deceased Devinder told PW-10 that he was in love with

Poonam and that she had promised to meet him in the

evening of 25.06.1999 at a fodder room near Katvawala

passage and later, upon such eventuality the appellants

caused the murder of Devinder by strangulation at the

fodder room near Katvawala passage.

23. Bearing in mind the afore-mentioned crucial

aspects, now, the evidence of PW-10 has to be analysed

so as to consider whether it constitutes positive evidence

for applying ‘last seen’ theory and if not, what is the other

positive evidence to justify taking of ‘last seen evidence’

as a link in the chain of circumstances in this case. This

question has to be addressed in the light of Section 60 of

the Evidence Act, 1872 which postulates that oral

evidence must be direct in all cases. However, it is

inadmissible only when it proposes to establish the truth

of the statement but not the factum of the statement by

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other persons. There is a fine distinction between

proving the factum of a statement by other persons and

proving the truth of such statement. This position was

explained by this Court in the decision in J.D. Jain v. The

Manager of SBI

7

. In para 10 of the judgment, it was held

thus: -

“The Privy Council in the case of Subramaniam v.

Public Prosecutor, (1956) 1 WLR 965 observed,

“Evidence of a statement made to a witness who is

not himself called as a witness may or may not be

hearsay. It is hearsay and inadmissible when the

object of the evidence is to establish the truth of

what is contained in the statement. It is not hearsay

and is admissible when it is proposed to establish

by the evidence, not the truth of the statement but

the fact that it was made. The fact that it was made

quite apart from its truth, is frequently relevant in

considering the mental state and conduct thereafter

of the witness or some other persons in whose

presence these statements are made.”

7

(1982) 1 SCC 143

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24. It can be seen that PW-10 had only spoken about

the factum of deceased Devinder’s divulgation that he is

in love with Poonam and also about her promise to meet

him in the evening of 25.06.1999 at the fodder room near

Katvawala passage. That apart, the fact is that though he

had deposed that he had seen the appellants herein at

about 08.30 pm he did not depose, even vaguely, that he

had seen either deceased Devinder and Poonam

together at any time proximate to the occurrence. We

have already taken note of his material omission. Thus,

in the light of the aforesaid position, applying Section 60

of the Evidence Act, even if it is taken that evidence of

PW 10 is admissible to the extent that deceased

Devinder revealed about his love with Poonam and her

promise to meet Devinder in the evening of 25.06.1999

to PW-10 the evidence of PW-10 could not be taken as

admissible as relates the truth of the said statement. To

wit to prove that Poonam and Devinder were in love and

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that in the evening of 25.06.1999 they actually met at the

fodder room in Katvawala passage.

25. In this context, it is also relevant to note that PW-10

with whom Devinder claims to have shared his personal

secrets, as above deposed that he did not participate in

the funeral of Devinder. He would also depose that he is

not related to Devinder. That apart, his evidence is to the

fact that prior to 03.07.1999 he did not divulge about the

aforesaid facts to anyone. It is also relevant to note at this

juncture that it is not his specific case that he went to the

police station or to the investigating officer or to any

other police officer and on his own made a statement. In

such circumstances the question is how the fact that he

was having knowledge / information on such matters

came to the knowledge of police. Thus, viewing from all

angle, it can be seen that the evidence of PW-10 is not

free from suspicion and at any rate, it cannot be taken as

a positive evidence sufficient to justify the application of

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the theory of ‘last seen’ or to presume the presence of

Devinder in the company of the appellants in the evening

of 25.06.1999, describing it as ‘last seen’ evidence.

26. PW-8 Azad is the father of PW-10 Mukesh. He

would depose before the court that on 25.06.1999 at

about 08.30 pm while he was returning from his field, he

saw the appellants taking out a gunny bag from their

Kotha and putting it in an Ambassador and taking it

towards Katlapur village. According to him though he

had seen such an incident, he did not reveal the said facts

to anyone till he made the statement to the police. He

admitted the fact that Mukesh (PW-10) is his son and that

PW-7 Dayanand is his brother. It is also worthy to note

that he did not deny the suggestion that his grandfather

Jug Lal and the grandfather of Sukhbir Singh, the father

of the deceased, were real brothers and what he had

deposed was that they might have been real brothers.

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27. While testing the trustworthiness of the version of

PW-8, certain aspects have to be taken into account. His

version before the Court is that he had seen an old model

white Ambassador car parked near the plot of Zile Singh

and Balwan Singh at about 08.30 pm on 25.06.1999 and

further that he had seen, at that time, the appellants

taking out a gunny bag from their Kotha and putting it in

the said Ambassador car and took it towards Katlapur

village. On being confronted with Ext.PB the statement

that the car was taken by the accused towards Katlapur

village was not recorded by the police, was brought out.

PW-10, his son, deposed that at about 08.30 pm when he

was returning from the field, he had seen the appellants,

going through a short route. Thus, their versions are not

tallying with each other. If they were actually returning

from their field though not along with the other, and

reached near the place in question almost at the same

time viz., about 08.30 pm on 25.06.1999 this kind of

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discrepancies could not have been there in their

versions. We have also seen the improvements both of

them had made to their previous statements, brought by

confronting with them. Taking into account the

discrepancies in their version it is relevant to refer to the

oral evidence of PW-9 Krishan Kumar, the brother of the

deceased Devinder. Going by the FIR his case is that it

was about 08.30 pm in the evening of 25.06.1999 that his

brother Devinder left the house. Before making further

scrutiny of the versions of PW-8, PW-9 and PW-10 it is

very relevant to refer to the evidence of PW-4 Dr. K. Goel

who conducted autopsy on the body of Devinder and

prepared Ext.PD.

Postmortem Certificate.

28. The Ext.PD would reveal that he conducted the

postmortem on the body of Devinder on 29.06.1999 at

02.30 pm. He opined that the time lapsed between death

and the time of post mortem is about 3 ½ days. Thus,

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going by his opinion as to the time of death it would have

been in and around 02.30 am on 26.06.1999. It is true that

considering the fact that the body was floating and

remaining in water it may not be possible to pinpoint the

exact time of death.

29. There is yet another aspect which assumes

relevance in this context. The evidence on record would

reveal that inquest was conducted on 28.06.1999 at 10.30

am. Column 17 in the inquest report is with respect to

the condition of the body. As relates the question “is the

body stout thin or decomposed” the answer was given

thereunder viz., “Healthy and strong, fleshy.” True that

as per the report of the postmortem conducted on the

next day the body was seen decomposed. At any rate,

all the aforementioned circumstances would be

sufficient to cast suspicion on the oral testimonies of PW-

8 and PW-10. What makes their version susceptive to

further suspicion is their evasive answers during cross-

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examination to conceal their relationship with the

deceased Devinder. PW-10 would depose in that regard

that it would be incorrect to suggest that deceased was

his cousin and further that it would be incorrect to

suggest that his great grandfather and great grandfather

of deceased Devinder was Jug Lal. PW-8 who is his father

would admit that his grandfather was Jud Lal and would

state that Sukhbir who is the father of the deceased is the

grandson of Shri Ram and Jug Lal and Shri Ram might

have been real brothers, but he did not know. But PW-9

Krishan Kumar who is the brother of deceased Devinder

would depose during his cross examination thus:-

“Total family members including the witnesses

cited in this case were present at the time of cremation

i.e. Azad and Mukesh were also present”.

Further, the oral testimony of PW-10 would reveal

he categorically deposed that he did not join the

cremation of Devinder. The contradictions brought out

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from PW-8 and PW-10 by confronting with their previous

statements, not inspire confidence.”

30. In the contextual situation, one may really feel that

the prosecution had withheld their best evidence, for

reasons best known to them. Obviously, in respect of the

questions whether Poonam is the sister of the appellants;

whether she was in love with the deceased Devinder; if

so, whether she promised Devinder to meet at the fodder

room near Katvawala passage in the evening of

25.06.1999; whether they had actually met at the said

place near about that time; whether the appellants

reached there and snatched her chunni and whether they

strangulated the deceased using her chunni, the best

witness ought to have been Poonam herself. But the fact

is that she was not examined by the prosecution. Nothing

is discernible from the records as to her questioning

during investigation. What is more disturbing in this

context is the observation of the trial Court that Poonam

Crl. A. Nos. 1076-1077 of 2015 Page 32 of 48

had not been examined by the accused to distort the

motive of the occurrence.

31. When the prosecution comes out with a motive and

the motive is either not proved or held to be insufficient,

the evidence of witnesses of the said fact has to be

scrutinized with great care and caution. It is so held by

this Court in State of U.P. v. Babu Ram

8

. There cannot be

any doubt with respect to the position that in India the

burden to prove the prosecution case in criminal matters

involving offences in respect of which the appellants

were made to stand the trial, is on the prosecution. If the

prosecution got no good reason for not producing the

best evidence, in the sense, the best witness who could

help the prosecution to establish their case, then adverse

inference could have been taken only against the

prosecution and certainly that cannot be a reason to hold

that the defence could have distorted/ disproved the

8

AIR 2000 SC 1735

Crl. A. Nos. 1076-1077 of 2015 Page 33 of 48

motive that was projected by the prosecution by

examining that witness. In the decision in Zahira

Habibullah Sheikh & Anr. v. State of Gujarat & Ors.

9

this

Court held thus:

“It is a cardinal rule in the law of evidence that the

best available evidence should be brought before

the court. Sections 60, 64 and 91 of the Evidence

Act, 1872 (in short “the Evidence Act”) are based on

this rule. The court is not empowered under the

provisions of the Code to compel either the

prosecution or the defence to examine any

particular witness or witnesses on their side. This

must be left to the parties. But in weighing the

evidence, the court can take note of the fact that the

best available evidence has not been given, and can

draw an adverse inference”

32. There can be no doubt that the obligation/onus of

the defence would arise only when the prosecution

discharged its burden in such matters. By not examining

Poonam the prosecution had actually withheld the best

9

(2006) 3 SCC 374

Crl. A. Nos. 1076-1077 of 2015 Page 34 of 48

evidence. Perhaps, by examining her this case would

have turned to a case of direct evidence, if the

prosecution story is to be believed as in respect of many

of the questions, she could have thrown light.

33. Now, before dealing with the oral testimonies of the

other witnesses we think it apt and appropriate to deal

with the aforesaid link in the chain of circumstances viz.,

‘motive’, a little more. It is true that in a case of

circumstantial evidence motive does have significance,

but that is no reason to say that in the absence of motive,

conviction, based on circumstantial evidence, cannot be

made. (See the decision of this Court in Jagdish v. State

of Madhya Pradesh

10

). ‘Motive’ is something which

makes a man to do any particular act and it must, in all

probability, exist behind every voluntary act. Initially,

PW-9 suggested an incident that occurred on 29.05.1999

as motive. According to him on that day his father

10

(2009) 9 SCC 495

Crl. A. Nos. 1076-1077 of 2015 Page 35 of 48

Sukhbir Singh and brother deceased Devinder were

assaulted by eight persons and somehow, Devinder had

managed to escape. But the appellants were not named

as assailants in connection with that incident. We are at

a loss to understand how that could be a motive. The

appellants are also not named among the suspected

abductors/kidnappers. The motive thereafter projected

by the prosecution against the appellants-convicts is that

they found their sister, Poonam, in a compromising

position with deceased Devinder in the evening of

25.06.1999 in the fodder room near Katvawala passage.

Though, as noted earlier, this was the motive as per the

prosecution projected through PW 7, a scanning of the

entire oral evidence of all witnesses would reveal that

none of them had actually spoken to the effect that he had

seen the deceased and sister of the appellants Poonam

either inside the fodder room near Katvawala passage at

the relevant point of time or even at any time proximate

Crl. A. Nos. 1076-1077 of 2015 Page 36 of 48

to the occurrence near the aforesaid place. As a matter

of fact, none had spoken to the effect of even seeing

Poonam and Devinder together, on the day of

occurrence, much less in a compromising position. The

said motive has been ascribed on the appellants,

virtually, based on the extra judicial confession

allegedly made by them before PW-7 Daya Nand. Of

course, as per the prosecution motive was also revealed

as part of the extra judicial confession. We will deal with

the admissibility or otherwise of the extra judicial

confession a little later. It is the prosecution case that it

is the sight of their sister, Poonam, in a compromising

situation with the deceased Devinder at the aforesaid

place that prompted them to commit the aforesaid

offence. However, no evidence was adduced on the side

of the prosecution to establish that Poonam is actually the

sister of the appellants or at least one of them. The

materials on record would reveal that Poonam is the

Crl. A. Nos. 1076-1077 of 2015 Page 37 of 48

daughter of one Balwan Singh, and the first appellant

Krishan Kumar is the son of one Om Prakash and the

second appellant Joginder Singh is the son of one Zile

Singh. This fact, which is evident from the evidence on

record, would undoubtedly reveal that they are not

sibship and then, the question is what is the proximity of

the blood between them. Virtually, no evidence was

adduced by the prosecution in that regard and in fact, on

that aspect also prosecution relies only on the extra

judicial confession made by the appellants before PW-7.

34. As noted hereinbefore the next link in the chain of

circumstances relied on by the prosecution is the extra

judicial confession allegedly made by the appellants to

PW-7. True that the extra judicial confession cannot

always be taken as a weak piece of evidence and the

question whether it is worthy to be taken as admissible

and to form basis for conviction in a criminal trial would

Crl. A. Nos. 1076-1077 of 2015 Page 38 of 48

depend upon veracity of the witness to whom the

confession was allegedly made.

35. In the decision in Chattar Singh and Anr. v. State

of Haryana

11

this Court held that after subjecting the

evidence of the witness to a rigorous test on the

touchstone of credibility the extra judicial confession

could be accepted and it could be the basis of a

conviction if it passes the touchstone of credibility.

36. In the decision in Balwinder Singh v. State of

Punjab

12, this Court held thus: -

“An extrajudicial confession by its very nature is

rather a weak type of evidence and requires

appreciation with a great deal of care and

caution. Where an extrajudicial confession is

surrounded by suspicious circumstances, its

credibility becomes doubtful and it loses its

importance.”

11

AIR 2009 SC 378; (2008) 14 SCC 667

12

1995 Supp (4) SCC 259

Crl. A. Nos. 1076-1077 of 2015 Page 39 of 48

37. In Ajay Singh v. State of Maharashtra

13, this Court

held thus:-

“8. We shall first deal with the question

regarding claim of extra-judicial confession.

Though it is not necessary that the witness

should speak the exact words but there cannot

be vital and material difference. While dealing

with a stand of extra-judicial confession, court

has to satisfy that the same was voluntary and

without any coercion and undue influence.

Extra-judicial confession can form the basis of

conviction if persons before whom it is stated

to be made appear to be unbiased and not

even remotely inimical to the accused. Where

there is material to show animosity, court has

to proceed cautiously and find out whether

confession just like any other evidence

depends on veracity of witness to whom it is

made. It is not invariable that the court should

not accept such evidence if actual words as

claimed to have been spoken are not

reproduced and the substance is given. It will

13

(2007) 12 SCC 341

Crl. A. Nos. 1076-1077 of 2015 Page 40 of 48

depend on circumstance of the case. If

substance itself is sufficient to prove culpability

and there is no ambiguity about import of the

statement made by the accused, evidence can

be acted upon even though substance and not

actual words have been stated. Human mind is

not a tape recorder which records what has

been spoken word by word. The witness

should be able to say as nearly as possible

actual words spoken by the accused. That

would rule out possibility of erroneous

interpretation of any ambiguous statement. If

word by word repetition of statement of the

case is insisted upon, more often than not

evidentiary value of extra-judicial confession

has to be thrown out as unreliable and not

useful. That cannot be a requirement in law.

There can be some persons who have a good

memory and may be able to repost exact

words and there may be many who are

possessed of normal memory and do so. It is for

the court to judge credibility of the witness'

capacity and thereafter to decide whether his

or her evidence has to be accepted or not. If

Crl. A. Nos. 1076-1077 of 2015 Page 41 of 48

court believes witnesses before whom

confession is made and is satisfied confession

was voluntary basing on such evidence,

conviction can be founded. Such confession

should be clear, specific and unambiguous.”

38. PW-7 Daya Nand is the witness to whom extra

judicial confession was allegedly made by the appellants

herein. True that both the Courts held it as admissible

and accepted it as a strong link in the chain of

circumstantial evidence. Going by the deposition of PW-

7 Daya Nand, the appellants herein, (named by him as

Joginder and Krishan), came to him while he was sitting

in his Baithak and told him about the factum of

commission of murder of Devinder s/o Sukhbir Singh,

manner of murder and causing disappearance of

evidence etc. He would depose during his chief

examination thus:-

“On 09.07.1999, I was sitting in my Baithak, in the

meantime, Joginder and Krishan accused came to

Crl. A. Nos. 1076-1077 of 2015 Page 42 of 48

me and told me that they have committed the

murder of Davinder son of Sukhbir and have thrown

his body in a canal. The accused also told me that

on 25-6-99 they went to fodder room of Zile Singh,

where they found Davinder And Poonam in a

compromise position. They gave beating to

Poonam and sent her away but they snatched her

chunni and strangulated Davinder for his acts and

put his body in a gunny bag. The accused also told

me that have put the body in their Ambassador Car

and thrown it is the Delhi Canal. They also

requested me that the C.I.A. staff is in their search.

So, they wanted my help that they should be

produced before the C.I.A. staff by me. When I

alongwith the accused now present in the Court

coming to the Sonepat then the CIA staff person met

me and I handed ovr the accused to them. The

accused also confessed their guilt in my presence as

well as before the Police. My statement was

recorded by the police.”

39. The guilt of the appellants herein was sought to be

brought home mainly relying on the extra judicial

confession. Hence, the question is whether the evidence

Crl. A. Nos. 1076-1077 of 2015 Page 43 of 48

of PW-7, in that regard, would inspire confidence. While

considering this relevant aspect certain factors revealed

from the evidence on record require attention.

Obviously, going by the case of the prosecution the

murder had taken place in the evening, at about 08.30

pm on 25.06.1999. The dead body was recovered on

28.06.1999 from Delhi Canal and on 03.07.1999

statements of PW-8 Azad and Azad’s son, PW-10 Mukesh

were recorded by police. We have already referred to

their version. PW-8 is the brother of PW-7 and PW-10 is

the son of PW-8. PW-7 claims that on 09.07.1999 the

appellants herein came to him and confessed as

extracted hereinbefore. He was examined before the

trial Court on 02.03.2001. His oral testimony would

reveal that he is the Tau (uncle) of deceased Devinder

and at the same time a scanning of his evidence would

reveal his feeble attempt to show that he is equi-related

to the deceased and the accused (appellants herein). It

Crl. A. Nos. 1076-1077 of 2015 Page 44 of 48

would reveal that he could not rather, did not depose as

to what exactly is his relation with the appellants herein.

He deposed that he could not tell the name of

grandfather of accused Joginder. Though he deposed

precisely the date on which the appellants came to him

and also the exact date of occurrence his cross-

examination would reveal that he is oblivious of (or not

telling truth on) most of the other incidents and matters

related to the death of Devinder. This is revealed from

the following recital from his cross-examination: -

“I have no knowledge that on 28-6-1999 Krishan and

Govind told me that the dead body of Davinder has

been found by them. I cannot tell the exact date of

cremation of Davinder but he was cremated in my

presence. I do not know whether my brother Azad,

his son Mukesh and Sharvn son of Ram Kishan were

present of not. I do not know whether the police was

present at the time of the cremation or not. I also

did not see the police on the next date of cremation.

I have not seen the police prior to 9-7-1999. If the

police had come to the village I have not seen.

Crl. A. Nos. 1076-1077 of 2015 Page 45 of 48

When the accused were produced before the

police, then PW Govind only was present with me.

None else was present there. There are large

number of shops in village Nahri. All the shops were

opened at the time but none came out of the shop.”

40. In this context it is worthy to note that even after the

recording of the statements of PW-8 and PW-10, as

revealed from their depositions, there was no evidence

as to how the appellants came to know that Devinder was

in the fodder room (if at all they were there) and what

was the motive etc. Taking into account all the afore-

mentioned aspects revealed from the records, but were

not at all considered by the trial Court and the High

Court, we are of the considered view that evidence of

PW-7 on extra judicial confession could not inspire

confidence.

41. Now, we will consider the other link in the chain of

circumstances relied on to convict the appellants. It is

recovery of the weapon viz., the chunni used for

Crl. A. Nos. 1076-1077 of 2015 Page 46 of 48

strangulation. The findings of the Courts are to the effect

that it was not recovered from a public place. In this

context, it is to be noted that the sole independent

witness for the recovery is Sri. Gobind, who is the

brother of the deceased was not examined by the

prosecution. That apart, PW-6 who was the then

Inspector, SHO, PS Meham and then posted as S.I. C.I.A

staff, Sonipat deposed that he joined the investigation

along with PW-14 Ram Kala. He deposed during his

cross-examination regarding the recovery of ‘chunni’

and purse thus: - “It is correct that these types of chunni

and purse are usually available in the market. There is a

common passage near the place of recovery of chunni and

purse, a number of persons uses that passage and is

accessible to all.” PW-14 also deposed in regard to the

said recovery that it is correct that the place of recovery

is an open place and is accessible to all. In the aforesaid

circumstances non-examination of the independent

Crl. A. Nos. 1076-1077 of 2015 Page 47 of 48

witness along with the deposition of PW-6 and PW-14 as

above, would make the recovery of chunni and purse

inconsequential.

42. Having carefully considered the rival contentions

and perusing the evidence on record, which made us to

make the observations, conclusions and findings as

above, we have no hesitation to hold that the trial Court

as also the High Court have appreciated the evidence in

an utterly perverse manner viz., against the weight of

evidence. In view of our findings on each of the links in

the chain of circumstances no conviction can be entered

against the appellants under Sections 201, 300 and 302,

IPC read with Section 34, IPC. They are individually or

even collectively not sufficient to connect the appellants

with the crime. Consequently, the impugned judgment

of High Court in C.R.A. No. D-671-DB of 2002 and C.R.A.

No. D-685-DB of 2002 that confirmed the judgment of the

trial Court in Sessions Case No.121/99/2000 and

Crl. A. Nos. 1076-1077 of 2015 Page 48 of 48

Sessions Trial No.17/2000 by Additional Sessions Judge,

Sonepat are set aside. The appellants are acquitted

granting benefit of doubt. Since the appellants are

already on bail, their bail bonds are discharged. The

appeals are allowed as above.

……………………, J.

(C.T. Ravikumar)

……………………, J.

(Sanjay Kumar)

New Delhi;

August 08, 2023