2024 INSC 21

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1338 OF 2010

PRADEEP KUMAR ...APPELLANT

VERSUS

STATE OF HARYANA …RESPONDENT

J U D G M E N T

PAMIDIGHANTAM SRI NARASIMHA , J.

1. The sole appellant herein was tried along with another

accused for the murder of one Samsher Singh and convicted under

Section 302 read with Section 34 of the Indian Penal Code, 1860

for murder and sentenced to rigorous imprisonment for life by the

Trial Court

1. In appeal, the High Court of Punjab & Haryana

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the judgment impugned here in dismissed the appeal and

confirmed the conviction and sentence. Thus, the present appeal.

2. The case of the prosecution is that while the Assistant Sub-

Inspector Balbir Singh, later examined as PW-21 was with other

police officials on duty at Deyod Kheri Village, Jind-bypass road,

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The Additional Sessions Judge Kaithal in Sessions Case No. 43 of 2004 dated 31.08.2007.

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In Criminal Appeal No. 805-DB 2007 dated 05.09.2009.

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Kaithal, on 11.04.2004, the complainant-Sunil Kumar Bhura

(later examined as PW-20) met him and got his statement (EX.PY)

recorded. The statement had that he is a resident of Nehru Garden

Colony, Kaithal and the deceased-Shamsher Singh is related to

him, being son of his paternal aunt. PW-20 was in business of real

estate and was living in Adarsh Nagar, Kaithal. The previous day,

that is on 10.04.2004, when PW-20 was in the office of the

deceased along with one Balwant Singh (PW-18), the deceased

received a call on his mobile phone at about 9.15 PM. A little

thereafter, that is about 9.30 PM, the deceased received another

phone call. After conversing on the mobile phone, the deceased

informed them that he has to go to Gole Market and left on his

motorcycle. The complainant and Balwant Singh also left the shop

of the deceased. In the morning, the deceased’s wife informed

PW-20 that the deceased had not returned the previous night. On

receiving the said information, PW-20 and PW-18 reached the

house of the deceased and thereafter went on a search for the

deceased.

3. When PW-20 got the information that a dead body was found

lying, he along with PW-18 and one Mr. Naresh (PW-13) reached

the spot and saw that the deceased lying there, with his throat

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having knotted with some cloth, and the right eye being badly

injured. They also noticed some injuries on the head of the

deceased. The motorcycle of the deceased was parked by the side.

While Naresh and PW-18 remained at the spot, PW-20 had come

to inform the police about the incident and his statement was thus

recorded and read over to him by the investigating officer (PW-21)

with his endorsement at Ex. PW-21/1. After the FIR was

registered, PW-24 took over the investigation and recorded the

statements of witnesses.

4. During the investigation, the police recorded the statement of

Rajesh, later examined as PW-11 and Jogi Ram later examined as

PW-12. The statement and deposition of these two person s

assumed importance as their evidence was relied on by the Trial

Court as well as the Appellate Court.

5. The statement of Rajesh (PW-11) was that on 10.04.2004

while he was driving from Chandigarh to Hisar, about half a

kilometre before Karnal bypass his vehicle got punctured. As he

was changing the wheel, he saw four young people on motorcycle

coming from eastern side and they had to slow down because of

the Karnal bypass. At that time, he saw the accused were carrying

dandas and one of the boy’s clothes were stained with blood. Being

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suspicious he noted the registration number of the motorcycle

being HR 08 E 4962. This witness also says that he read about the

murder of the deceased in the newspaper two days later, i.e. on

12.04.2004 and while he was returning back to Chandigarh on

13.04.2004, he saw a police vehicle standing at the Karnal bypass

Chowk with some police officials and the accused. He stopped his

vehicle and informed the police about the occurrence on

10.04.2004. The prosecution thus relied on this person in support

of the case as a witness to have last seen the deceased with the

accused.

6. Similarly, PW-12 made a statement to the police. His version

is that he is a resident of Sector 19/1 Huda, Kaithal and on

10.04.2004, he was taking an evening walk on Kaithal Road T-

Point near Huda Road/Street. About 9.45-10 pm, while urinating

by the roadside, he saw a motorcycle ridden by 3 young boys of

about 20-21 years of age holding dandas in their hands. He

recognised the appellant and when he started coughing, that is

while urinating, the 3 boys drove away towards Karnal Road. His

statement was recorded by the police on 12.04.2004.

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7. The police also recorded the statement of one Dilbag Singh,

later examined as PW-16 who recorded his version of having seen

the deceased in the company of the accused at the same spot.

8. It is the case of the prosecution that on 17.04.2004, the

Appellant (A-1), Sumit Gupta (A-2), Anil & Jaswinder surrendered

before the investigating officer through Ex-Sarpanch of village

Geong, Balbir Singh (PW-10) to whom the accused made an extra-

judicial confession. Pursuant to the surrender, the prosecution

says that disclosure statements of A-1, A-2, Anil & Jaswinder were

recorded, and certain recoveries were also made.

9. Upon completion of investigation, charge sheet was filed. It

may be mentioned at this stage that prosecution of Anil and

Jaswinder was separated from this case after they were declared

to be juveniles. Thus, only the Appellant and Sumit Gupta (A-2)

stood trial. Before the Trial Court, the prosecution examined 24

witnesses and marked certain exhibits. The defence on the other

hand examined 3 witnesses as DW 1, 2 and 3.

10. The Trial Court having noticed that there are no eyewitnesses

and that the case of the prosecution is based only on

circumstantial evidence, copiously referred to the statements of

each witness, but rested its decision only on the evidence of

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PW-10, 11 & 12 and certain recoveries and the FSL Report. The

reasoning, which is in two paragraphs is extracted herein below

for ready reference:

“In the present case, the chain of circumstances is

interwoven which has been corroborative through

the testimony of PW-11 Rajesh and PW-12 Jogi

Ram who have last seen accused Sumit Gupta and

accused Pradeep Kumar with Shamsher Singh

deceased. Extra Judicial confession has been

made before Ex. Sarpanch Balbir Singh. Motive is

also proved through cheques which have been

issued by accused Sumit Gupta in the name of

Shamsher Singh (deceased) from which accused

Sumit Gupta has taken a loan of Rs. 29,000/- and

failed to return back that money in time. There is

recovery of Mobile Phone of accused Sumit Gupta

and Shamsher Singh vide recovery memo Ex. PV.

In FSL report Ex. PRR/1 blood group of deceased

Shamsher Singh is cited to be ‘O’ group. In the

‘danda’ recovered from accused vide recovery

memo Ex. PQQ, blood group ‘O’ tallies. Similarly, on

the pant worn by the accused Pardeep Kumar

recovered later, blood ‘O’ group has been found on

the stains of pant vide recovery memo Ex. PJ.

Hence, the prosecution case is also proved through

scientific investigation also. Hence, these are chain

of evidence so far complete, so as not to leave any

reasonable ground for conclusion consistent with

the guilt of the accused. The guilt of accused Sumit

Gupta and accused Pardeep Kumar is proved to the

fact that in all human probability act of murder has

been committed by accused Sumit Gupta and

Pardeep Kumar.

Hence, it is proved to the hilt that on 10.04.2004,

at about 10 PM in the area of Dhand Road Deokheri

turning accused Sumit Gupta and Pardeep Kumar

in furtherance of their common intention caused

death of deceased Shamsher Singh intentionally

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and committed offence punishable under Section

302 read with Section 34 IPC.”

11. In appeal by the Appellant herein and accused No.2, Sumit

Gupta, the High Court also relied on the evidence of PW-11

and 12. In fact, the High Court seemed to have accepted the

submission of the defence that the evidence of Ex. Sarpanch,

PW-10 is unreliable. However, without discussing the evidence of

PW-10, the High Court observed that the evidence of PW-11 and

PW-12 are sufficient to confirm the conviction and sentence

imposed by the Trial Court.

12. We heard Mr. Pranab Kumar Mullick, learned counsel for the

appellant who took us through his meticulously prepared written

submissions and statements of relevant witness and the reasoning

of the High Court.

13. As the case of the prosecution, as accepted by the Trial Court

and High Court, is based on circumstantial evidence said to have

been established by PW-10, 11 and 12, we will examine them in

detail.

14. PW-10 is an Ex. Sarpanch of the village Geong. His testimony

is that on 17.04.2004, while he was in his house, the Appellant (A-

1), Sumit (A-2), Anil and Jaswinder came to him and confessed

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about committing the murder of the deceased. He stated that

Sumit Gupta (A-2) disclosed to him that he borrowed money from

the deceased and as such there was pressure on him to return the

money. When the deceased demanded the money on 10.04.2004,

he was apprehensive of being insulted and therefore planned to kill

the deceased with the help of other accused. For this purpose, he

called the deceased to the T-Point at Kaithal, Dhand Road at 9.30

PM saying that he has arranged the repayment. By the time the

deceased came there, other accused were already present at the

spot, they all assaulted the deceased with dandas, killed him and

threw the dead body in the field near Shergha Road. This witness

also stated that all other accused disclosed similar version. Himself

being an Ex. Sarpanch, he has thereafter produced the accused

before the SHO Police Station Kaithal.

15. Having considered the submissions of the appellant about

contradictions in the statement of this witness (PW-10), the High

Court concluded, “even if we ignored the evidence of PW-10 before

whom the appellants have made an extra judicial confession having

committed the crime, there is more emphatic evidence led by the

prosecution compelling this Court to believe that the appellants had

committed the crime of murdering Shamsher Singh.” In other words,

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the High Court has not relied on the evidence of PW-10 as it found

other sufficient evidence.

16. We have however independently examined the evidence of

PW-10 and come to the conclusion that this witness is not

trustworthy and this is evident from the following:

a. This witness denied having met the deceased earlier “I

have never met Shamsher Singh earlier” . However, the

complainant (PW-20) in his statement on 11.04.2004 says

“today we came to know that Malkhan, Prem Singh, Balbir

Sarpanch met Shamsher on Dhand Road, Kaithal at about 10

PM.” The said statement is also recorded in the FIR and

charge sheet, though he leaves doubt about this version in

his deposition.

b. Similarly, Balwant Singh (PW-18) in his deposition on

08.12.2006 states that, “since Shamsher Singh did not reach

back to home and hence his family members started searching

for him. Malkhan, Prem Singh and Balbir Singh r/o Geong

informed that Shamsher Singh was seen at Dh and Road,

Kaithal”.

c. Further, Balbir Singh, ASI (PW-21) also deposed about

the deceased having met the Sarpanch. He says “it is correct

to state that Balbir Sarpanch, Malkhan and Prem Singh

residents of Geong had met Shamsher Singh deceased on

10.04.2004 at 10 PM at Dhand Road, Kaithal, according to

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statements of PWs gathered at the spot that is Sunil and

Balwant PWs.”

17. Apart from the above referred contradiction, yet another fact

about the extra-judicial confession on 17.04.2004 is noteworthy.

The statement of the accused Sumit Gupta (A-2) in his Section 313

CrPC statement is that they were arrested on 11.04.2004 itself and

not 17.04.2004. This statement gets corroborated by the

deposition of Rajesh (PW-11), who stated that; “Thereafter I read

news in newspaper regarding murder on 12.04.2004. On

12.04.2004 I read in the newspaper regarding murder at Kaithal in

the surrounding area in which I was changing the stepney. On

13.04.2004 in the morning, I was going to Chandigarh through

Kaithal and I saw a police vehicle standing on Karnal by pass

Chowk in the area of Kaithal. I saw police inspector along with 4/5

police officials and saw the same accused along with police. Then I

stopped and told the police regarding occurrence on 10.04.2004.

Police recorded my statement on the spot.” If the statement of

PW-11 is to be accepted, which the prosecution wants us to

believe, then the arrest had already taken place by 13.04.2004 and

therefore the accused were seen in the presence of the police on

that day. If this is true, then there is no doubt in our mind that

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the extra judicial confession on 17.04.2004 is false and

unbelievable. The evidence of this witness that is PW-11 is strongly

relied on by the prosecution. In fact, the Trial Court as well as the

High Court proceeded on the basis of this witness’s statement to

convict and sentence the Appellant. This is perhaps the reason

why the High Court did not consider it appropriate to rely on the

evidence of PW-10 and proceeded to confirm conviction and

sentence on the basis of other evidence. There are some other

aspects which Mr. Mullick has relied on to cast a doubt about

evidence of PW-10 but we are of the opinion that the above referred

factors are sufficient to reject the version of PW-10.

18. PW-11 – His evidence is relied on by the Trial Court as well

as the High Court. He is admittedly a chance witness. In fact, he

chances the episode twice over, first on 10.04.2004 at about 10.30

PM when he was going from Chandigarh to Hisar. His version is

that at about 1.5 kilometres near Karnal bypass, his car tyre got

punctured and when he was putting the stepney, he saw four

people on motorcycle armed with dandas. He noticed blood stain

on the deceased’s pant and also records the registration number

of the motorcycle. Secondly, he again chances the police party

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standing with the accused on his way back to Chandigarh. He

stops and gets the incidence of 10.04.2004 recorded by the Police.

19. This witness is completely unreliable. It is his own statement

that he started from Chandigarh at 6 PM on 10.04.2004. The

distance between Chandigarh and the place of occurrence is about

120 kilometres and takes about 2 hours to cover the distance even

by car. There is no explanation as to how he took more than four

hours to reach the scene of offence. This uncertainty is

compounded when he admits his ignorance about the person in

whose name the car is registered. Further, upon being questioned

about where he stayed in Chandigarh the night of 09.04.2004, his

answer is simply that he does not remember the name of the lodge.

He could not even remember the shops near by the lodge. It is

rather surprising that this witness while engrossed in changing the

wheel of his car at 10.30 PM manages to note the blood stains on

the pant and also recorded the registration number of the

motorcycle. There is nothing to indicate that he had a pen or a

paper to readily note the registration number. His statement is to

be contrasted with the version of Ram Kumar IO (PW-24) who

stated that “I did not see any arrangement of the light on the Karnal

bypass road especially the alleged place where the car of Rajesh

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Kumar got punctured and he saw the accused while riding the

motorcycle. It is correct that there is no light arrangement on the

place of occurrence because it is an agriculture area.” We are not at

all impressed with the evidence of PW-11. There are too many

coincidences in his version and his story is improbable in the

context of the facts and circumstances of the case. He is certainly

an unreliable witness.

20. PW-12 – He is again a chance witness, relied on by the

prosecution to prove the last seen theory. This witness is said to

have gone out for an evening walk on Kaithal Road between 9.45

to 10 PM. While urinating by the roadside, he sees a motorcycle

with three accused on it. He states that the accused moved away

towards Karnal bypass, the moment he started coughing while

urinating. He reports this incident two days later, that is on

12.04.2004 by going to Sadar Police Station, Kaithal. We will

analyse his statement.

21. As per the statement of PW-12, he went on an evening walk

between 9.45 to 10 PM, two Kilometres away from his house,

particularly in an area which does not have streetlights. The multi-

tasking of urinating, coughing, seeing the motorcycle, noting the

blood stains clothes and recording the registration number

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happens simultaneously. There is no evidence as to the manner in

which he had recorded the registration number. He is said to have

studied only up to 6

th class. How could he notice and also

memorise the registration number having seen it from a long

distance. He himself says the motorcycle was at a distance. His

version is highly improbable.

22. This witness says that the blood stained trouser and dandas

in the hands of the accused caused suspicion and therefore, he

recorded the number. However, that did not compel him to go to

the police station. Instead, he reports the incident only on the

12.04.2004, that is two days later. Strangely, instead of reporting

the incident to the police chowki which is next to his residence, he

goes all the way to Sadar Police Station, Kaithal. We are of the

opinion that the evidence of PW-12 does not inspire confidence at

all.

23. PW-16 – This is yet another witness relied on by the

prosecution, however, the Trial and the High Court have not laid

much emphasis. We will nevertheless examine the evidence of this

witness. He is a witness who was on his way to Haridwar along

with his Fufa (father’s sister’s husband). He is supposed to have

seen the deceased sitting on a motorcycle along with A-2 at T-Point

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at Karnal bypass. After speaking to him for 2 to 3 minutes, he

proceeded further. This witness reports this incident to the Police

on 14.04.2004 when he comes back from Haridwar. His statement

is similarly relied on by the prosecution in support of the last seen

theory.

24. This witness is a relative of the deceased. The Fufa who was

travelling with him is not examined. He does not even know the

driver of the vehicle in which he travelled or its registration

number, even though he went all the way to Haridwar and stayed

there for two to three days. This witness describes the incidence of

meeting the deceased and A-2 at a place where even PW-12 is

supposed to have seen the deceased. Neither this witness spoke of

PW-12, nor did PW-12 speak about this witness. Nothing much

flows from the evidence of this witness, apart from his own version

which is highly improbable and therefore unreliable.

25. Apart from the improbable and contradictory versions of the

three witnesses, Mr. Mullick has also brought to our notice that

the weapons recovered by the IO and the ones seen by the

witnesses are only sticks. However, the deceased has suffered an

incise wound which according to the doctor, PW-14 who conducted

the post-mortem, is caused by a sharp-edged weapon. The

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prosecution has not recovered any sharp-edged weapon. In fact,

there is no mention about a sharp-edged weapon at all.

26. The FSL report states that the “pant” sent to them for

examination was one dirty blue “terikot pant”. However, as per the

recovery memo a “jeans pant” was recovered from the Appellant.

Additionally, the FSL report states that the blood on the sticks,

blood-stained pants and the blood group of the deceased is the

same “O+”. Mr. Mullick has rightly contended that this is not an

indication of the guilt. Moreover, nothing of these recoveries took

place in the presence of an independent witness. In fact, the IO

(PW-24) has admitted that he did not try to join any private person

before carrying out the recoveries.

27. Mr. Mullick has also made detailed submission with respect

to place and time of the recovery of the body of the deceased and

the alleged motive behind the crime. We are of the opinion that it

is not necessary to examine those aspects in detail. Admittedly,

there are no eyewitnesses, and the entire case of the prosecution

depends upon circumstantial evidence.

28. In a recent decision, Pritinder Singh v. State of Punjab, (2023)

7 SCC 727, one of us (Justice Gavai) has taken note of the

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judgment in Sharad Birdhichand Sarda v. State of Maharashtra

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(1984) 4 SCC 116 and observed:

17. It can thus be seen that this Court has held that

the circumstances from which the conclusion of

guilt is to be drawn should be fully established. It

has been held that the circumstances concerned

“must or should” and not “may be” established. It

has been held that there is not only a grammatical

but a legal distinction between “may be proved”

and “must be or should be proved”. It has been held

that 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. It has been held that the circumstances

should be of a conclusive nature and tendency and

they should exclude every possible hypothesis

except the one sought to be proved, and that there

must be a chain of evidence so complete so as not

to leave any reasonable ground for the conclusion

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“153. A close analysis of this decision would show that the following conditions must be

fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully

established.

It may be noted here that this Court indicated that the circumstances concerned “must

or should” and not “may be” established. There is not only a grammatical but a legal

distinction between “may be proved” and “must be or should be proved” as was held by

this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao

Bobade v. State of Maharashtra, (1973) 2 SCC 793: 1973 SCC (Cri) 1033] where the

following observations were made: (SCC p. 807, para 19)

“Certainly, it is a primary principle that the accused must be and not merely may be

guilty before a court can convict and the mental distance between “may be” and “must

be” is long and divides vague conjectures from sure conclusions.”

(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.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof

of a case based on circumstantial evidence.”

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consistent with the innocence of the accused and

must show that in all human probability the act

must have been done by the accused.

18. It is a settled principle of law that however

strong a suspicion may be, it cannot take place of a

proof beyond reasonable doubt. In the light of these

guiding principles, we will have to consider the

present case.”

In the background, we have analysed the evidence and the

testimonies of the witnesses.

29. There is a yawning gap between the charge against the

Appellant and the evidence that the prosecution has adduced. The

circumstances do not establish the guilt of the Appellant at all.

While the principle applicable to circumstantial evidence requires

that the facts must be consistent with the hypothesis of the guilt

of the accused, in the present case the evidence adduced gives rise

to doubts, improbabilities and inconsistencies.

30. Having considered the matter in detail and having noted the

various discrepancies and improbabilities, we are of the firm view

that the prosecution has not established its case beyond

reasonable doubt. The Appellant is entitled to be acquitted.

31. We, therefore, allow Criminal Appeal No. 1338 of 2010 and

set aside the judgment of the High Court of Punjab and Haryana

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at Chandigarh in Pradeep Kumar & Anr. v. State of Haryana in Crl.

Appeal No. 805-DB of 2007 dated 05.09.2009 and the judgment of

the Court of Additional Sessions Judge, Kaithal in Sessions Case

No. 43 of 2004 dated 31.08.2007 convicting and sentencing the

appellant under Section 302 read with Section 34 of the Indian

Penal Code, 1860.

32. The Appellant is acquitted of all charges, and his bail bonds,

if any, stand discharged.

33. Pending interlocutory applications, if any, stand disposed of

in terms of the above order.

34. The parties shall bear their own costs.

……..……………………………….J.

[B.R. Gavai]

.………….………………………….J.

[Pamidighantam Sri Narasimha]

New Delhi;

January 05, 2024