STATE OF PUNJAB versus KEWAL KRISHAN on 21 June 2023

JUDGMENT

1. Counsel for the appellant is present. None has appeared forthe respondent. The office has submitted a report that notice has beenserved on the sole respondent, yet no one has entered appearance on hisbehalf.

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2. We have heard Mr. Mohit Siwach, learned counsel for theappellant.

3. This appeal assails the judgment and order of the High Court ofPunjab & Haryana (for short the High Court) dated 01.05.2012 renderedin Criminal Appeal No. 372 of 2002, whereby the judgment and order ofthe trial Court convicting and sentencing the respondent (Kewal Krishan)under Section 302, IPC has been set aside and the appellant (respondentherein) has been acquitted of the charges for which he was tried.

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4. The prosecution case rests on evidence in respect of followingcircumstances:

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(a) The deceased was last seen alive in his own house in thecompany of the accused at about 7.00 p.m. on 10.12.1998by PW-2.

(b) Dead body of the deceased with multiple injuries was foundEin his house by PW-6, nephew of the deceased, on12.12.1998 at around 1.00 pm.

(c) Autopsy conducted on 12.12.1998, at about 4.15 pm,reflected that death of the deceased could have occurredwithin two days, as a result of shock and haemorrhage, dueFto ante mortem incised wounds.

(d) Accused made an extra-judicial confession before P.W-3on 25.12.1998 and was thereafter handed over to the policeon the same day.

G(e)Accused made a disclosure to the police on 25.12.1998 withregard to the place where he hid the knife used in the crime,which led to the recovery of a Khanjar (knife) (Ex.P-1).

(f) The autopsy surgeon opined that the incised wounds foundon deceased’s body could have been caused by use of thatKhanjar.

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5. The trial Court found those circumstances proved and forminga chain so complete as to conclusively indicate that it was the accusedand no one else who committed the murder and thus convicted andsentenced the accused accordingly.

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6. Aggrieved by his conviction, the accused went in appeal to theBHigh Court.

7. The High Court noticed that the accused in his statement undersection 313 of the Code of Criminal Procedure, 1973 had denied theincriminating circumstances appearing against him in the prosecutionevidence and had claimed that he was arrested on 12.12.1998 itself onCfalse implication. Thereafter, the High Court, on a careful analysis of theevidence, more particularly the statement made by PW-2 that on13.12.1998 he had disclosed to the police about the involvement of theaccused, doubted the date of arrest of the appellant (i.e., 25.12.1998), asset up by the prosecution, and opined that the statement of PW-2probabilizes the claim of the accused that he was arrested on 12.12.1998Ditself. The High Court found PW-2’s evidence of last seen not convincingand reliable inasmuch as if on 13.12.1998 PW-2 had informed the policeabout his suspicion in respect of the involvement of the accused, thepolice would have arrested the accused forthwith and not waited till25.12.1998. But the record indicated that the name of the accused cameEto light for the first time on 25.12.1998. In these circumstances, the HighCourt found PW-2 unreliable, as being a witness who was set up later.Otherwise also, the High Court found that last seen circumstance didnot conclusively point towards the guilt of the accused by excluding allhypotheses consistent with his innocence, inasmuch as there was a hugetime gap between the date and time when the deceased was last seen inFthe company of the accused and discovery of deceased’s dead body.Further, the High Court took note of the circumstance that the autopsyconducted on 12.12.1998 at 4.15 pm indicated occurence of rigor mortison lower limbs, which suggested that death could have occurred within30 hours of the autopsy, thereby throwing open the possibility of deathGoccurring much later than at 7.00 pm on 10.11.1998, when the deceasedwas allegedly seen in the company of the accused. Taking note of theabove and bearing in mind that the accused did not reside with thedeceased and no evidence was led that except the accused no one elsecould have entered the house of the deceased in the interregnum, thelast seen circumstance was found inconclusive.

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8. In respect of the circumstance of recovery of the knife, theHigh Court, firstly, doubted the date of arrest, as noticed above, and,secondly, noticed that there was no serologist report to ascertain whetherthe knife was stained with human blood as to connect it with the crime.

9. The High Court also discarded the extra judicial confession onthe ground that there was no cogent explanation set out in the prosecutionevidence to demonstrate as to why the accused would make a confessionto P.W.3, particularly, when the accused had no significant relationshipwith PW-3 and PW-3 could not have helped him. The extra judicialconfession was also doubted on the ground that the date of arrest of theaccused (i.e., 25.12.1998) appeared doubtful, inasmuch as there was ahigh probability of the accused being arrested earlier i.e., 12.12.1998, asclaimed by him, because from the statement of PW-2 it appeared thatthe police was informed by him on 13.12.1998 itself in respect of hissuspicion regarding the involvement of the accused.

10. After a thorough analysis of the evidence as highlighted above,the High Court found that, firstly, the incriminating circumstances werenot proved beyond reasonable doubt and, secondly, they did not constitutea chain so complete as to conclusively indicate that it was the accusedand no one else who, in all human probability, committed the crime.Consequently, the High Court set aside the order of the trial Court andacquitted the accused of the charge.

11. Learned counsel for the State (appellant) has submitted thatthere was no proven enmity of the witnesses with the accused. In thesecircumstances, there was no occasion for the High Court to doubt thetestimony of the prosecution witnesses in respect of the incriminatingcircumstances laid out by the prosecution. In such a situation there wasno justification to reverse the conviction recorded by the trial Court. Itwas argued that the deceased was last seen alive, having liquor with theaccused, in the evening of 10.12.1998 and thereafter the deceased wasnot seen alive by anyone. The autopsy report probabilizes death of thedeceased at around the same time when he was last seen in the companyof the accused. In these circumstances, the burden was on the accusedto prove as to when he left company of the deceased. In absencewhereof, coupled with other circumstances, accused’s conviction wasjustified. Therefore, the High Court fell in error by setting aside thejudgment of the trial Court and acquitting the respondent.

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A12. We have considered the submissions of the learned counselfor the appellant and have perused the record carefully.

13. Before we proceed further, it would be apposite to notice thelaw as to when it would be appropriate for this Court, exercising powerunder Article 136 of the Constitution of India, to interfere with an orderBof acquittal passed by the High Court while reversing an order ofconviction recorded by the Trial Court. The law in this regard is wellsettled. Normally, this Court is reluctant to interfere with an order ofacquittal. But when it appears that the High Court has on an absolutelywrong process of reasoning and a legally erroneous and perverseapproach to the facts of the case and ignoring some of the most vitalCfacts, acquitted the respondent and the order of acquittal passed by theHigh Court has resulted in a grave and substantial miscarriage of justice,extraordinary jurisdiction under Article 136 of the Constitution of Indiamay rightfully be exercised (See : State of U.P. v. Sahai, (1982) 1 SCC352).

D14. In State of M.P. v. Paltan Mallah, (2005) 3 SCC 169 reiteratingthe same view it was observed:

“8…….. This being an appeal against acquittal, this Court wouldbe slow in interfering with the findings of the High Court, unlessthere is perverse appreciation of the evidence which resulted inEserious miscarriage of justice and if the High Court has taken aplausible view this Court would not be justified in interfering withthe acquittal passed in favour of the accused and if two views arepossible and the High Court had chosen one view which is justand reasonable, then also this Court would be reluctant to interfereFwith the judgment of the High Court.”

15. In a recent decision rendered by this Court in Basheera Begamv. Mohd. Ibrahim, (2020) 11 SCC 174, it was observed:

“190. ………..Reversal of a judgment and order of convictionand acquittal of the accused should not ordinarily be interferedGwith unless such reversal/acquittal is vitiated by perversity. In otherwords, the court might reverse an order of acquittal if the courtfinds that no person properly instructed in law could have uponanalysis of the evidence on record found the accused to be “notguilty”.”

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16. In light of the law noticed above, we would have to examine,firstly, whether the High Court ignored or misread any material piece ofevidence which has resulted in miscarriage of justice; secondly, whetherthere is any perversity in the appreciation of evidence; and, thirdly, whetherthe view taken by the High Court is a plausible view.

17. This is a case based on circumstantial evidence. It is trite lawthat to convict an accused on the basis of circumstantial evidence, theprosecution must prove beyond reasonable doubt each of the incriminatingcircumstances on which it proposes to rely; the circumstance(s) reliedupon must be of a definite tendency unerringly pointing towards accused’sguilt and must form a chain so far complete that there is no escape fromthe conclusion that within all human probability it is the accused and noone else who had committed the crime and they (it) must exclude allother hypothesis inconsistent with his guilt and consistent with hisinnocence.

18. In the instant case, we notice from the record that the deadbody of the deceased, lying in a naked condition in his house, was firstdiscovered by PW-6, nephew of the deceased, on 12.12.1998 at around1.00 pm. Upon discovery of the dead body, on the information providedby PW-6, FIR was registered against unknown accused and inquest etc.was carried out. What is important is that the name of the accused didnot surface on the record till 25.12.1998, that is when he was allegedlyhanded over to the police by PW-3 upon a confession made by himbefore PW-3. PW-2, the sole witness of the last seen circumstance, inhis deposition in court, stated that he had expressed his suspicion inrespect of accused’s involvement to the police on 13.12.1998. The HighCourt opined that if PW-2 was aware of the last seen circumstance andhad made such a disclosure, there was no reason for the police not toact against the accused till 25.12.1998. Therefore, the statement of PW-2 in respect of imparting knowledge of the last seen circumstanceappeared doubtful and it appeared that the witness was set up to createlink evidence. The High Court also noticed that the alleged date andtime when the deceased was last seen alive was at quite a distancefrom the date and time when the deceased was found dead. Indisputablythe deceased was found dead in his own house where the accused didnot reside. The deceased was allegedly last seen alive in the companyof the accused in the evening at around 7 pm of 10.12.1998 whereas thebody of the deceased was found 2 days later, on 12.12.1998. Autopsy A

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Areport, based on autopsy conducted at around 4.15 pm on 12.12.1998,noted occurance of rigor mortis in the lower limbs, which gives rise toa possibility of death being within 30 hours of the autopsy, meaning therebythat death might have occurred much after 7 pm of 10.12.1998. In suchcircumstances, bearing in mind that the deceased was found dead in hisBown house, where the accused did not reside, and there was no evidenceas to when the accused left the house and that no one else could haveentered the house in the interregnum, other intervening circumstancesincluding hand of some third person in the crime was not ruled out by theprosecution evidence. For the reasons above, we are of the consideredview that the High Court was justified in doubting the testimony of PW-C2 and finding the last seen circumstance inconclusive in pointing towardsthe guilt of the accused by excluding other hypotheses consistent withhis innocence.

19. As regards recovery of the Khanjar (knife) is concerned, thesame was denied by the accused and there was no serologist report toDconnect it with the crime. Therefore, it had very little incriminating valueto sustain conviction on its own basis. Moreover, the High Court, onstrength of the circumstances appearing in the evidence, doubted thedate of arrest and, upon consideration of the circumstances, acceptedthe possibility of the arrest of the accused being much earlier in point ofEtime, as claimed by the accused, than what was set up by the prosecution.In such circumstances, the recovery, which was made on 25.12.1998,allegedly on disclosure made by the accused on 25.12.1998, becomesdoubtful. The view of the High Court in this regard cannot be termedperverse as to warrant interference by this Court.F20. Insofar as the evidence of extra judicial confession made bythe accused is concerned, the same was provided by PW-3, a memberof the Panchayat wherein the deceased resided. Ordinarily a personmakes a confession either to absolve oneself of the burden of guilt or toseek protection under the hope that the person to whom confession isGmade would protect him. Normally a confession to absolve oneself ofthe guilt is made to a person on whom the confessor reposes confidence.The High Court noticed that there was no evidence to demonstrate thatthe accused had any prior relations with PW-3 or that the accused hopedfor, or sought, any help from PW-3 and, therefore, made the confessionto him. Notably, the accused denied making any such confession. ForH

the reasons above, including other, which need not be put on record, theHigh Court discarded the circumstance of the accused making aconfession before PW-3 on 25.12.1998. Otherwise also, an extra judicialconfession is a very weak type of evidence and solely on its basis aconviction is not ordinarily to be recorded.

21. The argument of the learned counsel for the appellant thatsince there was no proven enmity between the accused and the witnessestherefore there was no reason to disbelieve them, would not be of muchhelp to the appellant because this is a case based on circumstantialevidence. In a case based on circumstantial evidence not only do eachof the incriminating circumstances have to be proved beyond reasonabledoubt but those incriminating circumstances must constitute a chain sofar complete that there is no escape from the conclusion that within allhuman probability it is the accused who has committed the crime andfurther, cumulatively, they must exclude all hypotheses consistent withthe innocence of the accused and inconsistent with his guilt. As we havefound that the incriminating circumstances were not proved beyondreasonable doubt and otherwise also the circumstance of last seen wasinconclusive, in our view, the High Court was justified in setting asidethe order of conviction recorded by the Trial Court.

22. The argument that the accused has failed to discharge hisburden under section 106 of the Evidence Act and, therefore, hisconviction was justified is misconceived. Section 106 of the EvidenceAct does not absolve the prosecution of discharging its primary burdenof proving the prosecution case beyond reasonable doubt. It is only whenthe prosecution has led evidence which, if believed, will sustain aconviction, or which makes out a prima facie case, the question arisesof considering facts of which the burden of proof would lie upon theaccused. (See: Shivaji Chintappa Patil v. State of Maharashtra (2021)5 SCC 626). Here, as we have discussed above, firstly, the incriminatingcircumstances were not proved beyond reasonable doubt and, secondly,they do not form a chain so complete from which it could be inferredwith a degree of certainty that it is the accused and no one else who,within all human probability, committed the crime. In these circumstances,there was no occasion to place burden on the accused with the aid ofsection 106 of the Evidence Act to prove his innocence or to disclosethat he parted company of the deceased before his murder.

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10SUPREME COURT REPORTS

[2023] 10 S.C.R.

A23. For all the reasons above, while keeping in mind that the viewtaken by the High Court is a plausible view and that it was not pointedout that any material evidence was ignored or misread, we do not find agood reason to interfere with the order of acquittal passed by the HighCourt.

B24. The appeal is accordingly, dismissed.

Ankit Gyan

(Assisted by : Mahendra Yadav, LCRA)

Appeal dismissed.

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