PRITINDER SINGH @ LOVELY versus THE STATE OF PUNJAB on 5 July 2023

[2023] 10 S.C.R. 1033 : 2023 INSC 614

PRITINDER SINGH @ LOVELY

v.

THE STATE OF PUNJAB

(Criminal Appeal No. 1635 of 2010)

JULY 05, 2023

[B. R. GAVAI AND SANJAY KAROL, JJ.]

Evidence – Circumstantial evidence – As per the prosecution,two days prior to the date of the incident, a dispute allegedly arosebetween the deceased-complainant’s brother and their step motherwherein she allegedly threatened the deceased that he would notsurvive – Two days after, the appellants (the step mother along withthe co-accused) came in a car and took the deceased on the pretextof purchasing shoes, when the complainant was also present in thehouse and allegedly noticed that the step mother was carrying her12 bore double barrel licensed gun in the car – Later, dead body ofthe deceased was found bearing two gunshot wounds – The car inwhich the appellants and the deceased were travelling was alsofound with the gun kept inside, along with the cartridges –Appellants were convicted u/s.302 r/w s.34, IPC and sentenced tolife imprisonment – Correctness of – Held:The present is a casebased on circumstantial evidence – In view of the serious doubtwith regard to the credibility of the witnesses on the issue of extra-judicial confession and last seen theory, the failure to examineBallistic Expert would be a glaring defect in the prosecution case –Prosecution failed to prove thecase beyond reasonable doubt –Appellants entitled to benefit of doubt – Judgment of the High Courtand the Trial Court quashed and set aside – Penal Code, 1860 –s.302 r/w s.34.

Criminal Law – Law with respect to conviction in the case ofcircumstantial evidence – Discussed.

Evidence – Circumstantial evidence – Law of extra-judicialconfession – Discussed.

Allowing the appeals, the Court

HELD: 1.1 The prosecution case mainly rests on thetestimony of (PW-2), ex-Sarpanch of village Maluka insofar as

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Aextra-judicial confession is concerned. Insofar as the last seentheory is concerned, the prosecution relies on the evidence ofcomplainant TS(PW-3), step-son of appellant MK and thestatement of JS (PW9). The evidence of Dr. RKG (PW-5), MedicalExpert who has conducted the autopsy and SI AS (PW-11) wouldalso be relevant. From the evidence of PW-2, it cannot be saidBthat the extra-judicial confession is one which could be found tobe credible. There appears to be no reason as to why the accusedpersons would go 100 kms. away and confess to him. Apart fromthat, his conduct also appears to be unnatural. Though IO AS(PW-11) was known to him and the telephone which was installedCin his house was in a working condition, he did not find it necessaryto inform him through telephone. The courts below have erredin relying on the extra-judicial confession made to PW-2.[Paras 9 and 13][1040-G-H; 1044-E-G]

1.2 With respect to another circumstantial evidence, i.e.Dthe accused was last seen in the company of the deceased andthe deceased was found dead shortly thereafter, the prosecutionrelies on the evidence of complainant TS (PW-3) and JS (PW-9).It appears to be improbable that, when appellant MK had herselfthreatened the deceased that he would no longer be alive, a realbrother (PW-3) would permit the deceased to accompany her andEanother accused and, that too, when the accused was carrying agun with her. Though PW-9 has stated that on 03.09.1998, accusedMK had exhorted co-accused PS that RS was alone and he shouldbe done away with, when the death of the deceased had occurredon the very next day, he did not find it necessary to inform anyoneFabout it, including the police, till he was summoned to thePolice Station on 10.09.1998. [Paras 14, 16 and 19][1044-G-H;1045-G-H; 1046-D-E]

1.3 Though the dead body of the deceased was found on4th September 1998, the statement of MS (PW-2) to whom theGalleged extra-judicial confession was made, was recorded on 9thSeptember 1998. SI AS (PW-11) has admitted in his examinationthat MS (PW-2) was known to him. He has further stated that hedid not know in how many cases of his Police Station MS wascited as witness. It is further to be noted that the statement of JS(PW-9) was recorded on 10th September 1998. As (PW-11) hasH

also admitted in his evidence that though the father of RS wasalive in those days, he did not record his statement by visitinghis village. PW-11 further admitted that he also did not visit thehouse of the deceased RS to collect any evidence of motive orhim leaving his house before the occurrence. The conviction onthe basis of such evidence cannot be sustained. Apart from that,it is to be noted that even according to PW-11, the gun which wasrecovered from the car had two empty cartridges (Ex. P10 andP11). Furthermore, the evidence of Dr. RKG (PW-5), who hadconducted the post-mortem of the deceased, would show thatthere was no external exit wound, and wad and pellets werepreserved and sealed. Apart from not collecting any evidence asto whether the said gun belonged to the appellant MK, even theBallistic Expert has not been examined to show that the wad andpellets were fired from the empty cartridges (Ex. P10 and P11).[Paras 20, 21 and 22][1046-E-H; 1047-A-C]

1.4 The present case is a case based on circumstantialevidence. In view of the serious doubt with regard to thecredibility of the witnesses on the issue of extra-judicial confessionand last seen theory, the failure to examine Ballistic Expert wouldbe a glaring defect in the prosecution case. The prosecution hasfailed to prove the case beyond reasonable doubt and, as such,the accused are entitled to benefit of doubt. The impugnedjudgment and order of the High Court and the judgment of theTrial Court are quashed and set aside. [Paras 25-27][1047-F-G;1048-A-B]

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; Munna KumarUpadhyay alias Munna Upadhyaya v. State of AndhraPradesh through Public Prosecutor, Hyderabad,Andhra Pradesh (2012) 6 SCC 174 : [2012] 6 SCR611 – relied on.

Sukhwant Singh v. State of Punjab (1995) 3 SCC 367 :[1995] 2 SCR 1190; Gulab v. State of Uttar Pradesh(2022) 12 SCC 677; Gurucharan Singh v. State ofPunjab [1963] 3 SCR 585; State of Punjab v. JugrajSingh (2002) 3 SCC 234 : [2002] 1 SCR 998 – referredto.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.C1635 of 2010.

From the Judgment and Order dated 04.02.2010 of the High Courtof Punjab & Haryana at Chandigarh in CRLA No. 430 of 2001.

With

DCriminal Appeal No.1714 of 2010.

Keshavam Chaudhri, Rishi Sehgal, Ms. Arveen Sekhon, Ms.Prabhneer Swani, Ms. Hargun Sandhu, Digvijay Singh, Kunal Sharma,Nikhil Jain, Ms. Jaspreet Gogia, Ms. Christi Jain, Advs. for the Appellant.

Abhinav Bajaj, Ajay Pal, Mayank Dahiya, Ms. Sugandh Rathor,EAdvs. for the Respondent.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. These appeals challenge the judgment and order of the HighFCourt of Punjab and Haryana, dated 4[th] February 2010, in Criminal AppealNo. 430-DB of 2001, upholding the conviction and sentence imposedupon the accused – appellants herein by the Additional Sessions Judge,Bathinda (hereinafter referred to as “Trial Court”), for the offencepunishable under Section 302 read with Section 34 of the Indian PenalCode, 1860 (hereinafter referred to as “IPC”).G

2. The case of the prosecution in brief is as follows:- 2.1 One Harbhajan Singh, a resident of Naga Mahantanwala Dera,had solemnized two marriages, the first with one Sukhwinder Kaur andthe second with the accused Manjit Kaur. His first wife bore him fourHchildren, complainant Tapinder Singh, deceased Ravinder Singh, and two daughters, both of whom are married. His second wife also bore himtwo children, namely Navdeep Kaur and Jaswinder Kaur.

2.2 Harbhajan Singh, according to the complainant, had a strainedrelationship with his first wife. The complainant Tapinder Singh hadmigrated to the United States of America in the year 1990, and his motherSukhwinder Kaur had also followed him in the year 1994. It is pertinentto note that his brother Ravinder Singh remained in India, residing invillage Jawadi close to Naga Mahantanwala Dera, where his fatherHarbhajan Singh was residing with his step mother, accused Manjit Kaur.

2.3 A year and a half prior to the occurrence of the incident,Tapinder Singh had returned to the village. It is alleged by him that twodays prior to the date of the incident, i.e. on 1[st] September 1998, a disputearose between Ravinder Singh and Manjit Kaur, on account of herallegedly deficient moral character. Ravinder Singh had beaten ManjitKaur during this incident, whereafter Manjit Kaur had allegedly threatenedRavinder Singh that he would not survive.

2.4 Two days later, i.e. on 3[rd] September 1998, accused ManjitKaur along with one Pritinder Singh, alias Lovely, accused - appellantherein, came in a car bearing Registration No. HR 21 7778 and tookRavinder Singh in the said car on the pretext of purchasing shoes.Pertinently, Tapinder Singh was also present in the house at this timeand allegedly noticed that accused Manjit Kaur was carrying her 12bore double barrel licensed gun in the car.

2.5 When the deceased Ravinder Singh did not return that evening,suspicion arose in the mind of Tapinder Singh and on the very next day,he along with one Gurdeep Singh, son of Gurmit Singh, went to NagaMahantanwala Dera in search of the deceased. The Mahant of theDera told them that the three individuals, i.e. two accused and thedeceased, had come in a car the previous night at around 9:30 PM.While both the appellants had their meals, Ravinder did not. The Mahantalso informed Tapinder Singh that Ravinder Singh and Manjit Kaur werearguing with each other and, while leaving, had mentioned that theywere going to the house of one Surjit Singh, resident of village KothaGuru, in their car.

2.6 Thereafter, Tapinder Singh set out for Surjit Singh’s houseand reached the bridge of the minor canal on the way to Kotha Guru atabout 8:30 AM, where they found the dead body of the deceased Ravinder A

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ASingh, lying on the pavement of the canal. The body bore two gunshotwounds. The car in which the appellants and the deceased were travellingwas also standing there, with the aforementioned gun kept inside, alongwith the cartridges. On the same day at around 10:15 AM, a complaintwas filed on the basis of which an FIR was registered at 11:00 AM andan inquest report was prepared. A special report was subsequentlyBreceived by the Magistrate on the same day at 2:15 PM. On the verysame day, both the accused-appellants herein were apprehended andarrested and subjected to medical examination by the Medical Officerof Primary Health Center Bhagta Bhai Ke at 8:45 PM.

2.7 The postmortem report stated the cause of death to be shock,Chaemorrhage and injury to vital organs, with the two wounds confirmedto be caused by a fire arm. The report of the Forensic Science Laboratoryfurther stated that, of the two cartridges found in the car, one had beenshot from the right barrel of the 12 bore double barrel licenced gun,while the other had been shot from the left barrel of the same weapon.

D2.8 On completion of the investigation, a chargesheet was filedbefore the Judicial Magistrate I[st] Class, Phul, who, vide order dated 21[st]December 1998, committed the case to the Trial Court. The Trial Courtframed charges against the two accused - appellants herein.

2.9 At the conclusion of the trial, relying on the last seen theory,Ethe chain of circumstantial evidence being complete, and the extra-judicialconfession made by the accused – appellants herein that they had killeddeceased Ravinder Singh before PW-2 – Mal Singh, the Ex-Sarpanchof village Maluka, the Trial Court, vide judgment and order dated 10[th]July 2001, convicted the two accused – appellants herein, under SectionF302 read with Section 34 of the IPC and sentenced them to undergo lifeimprisonment with a fine of Rs. 1000/- payable by each accused.

2.10 Appeals were preferred by both the accused - appellantsherein before the High Court in Criminal Appeal No. 430-DB of 2001,challenging their conviction and sentence. A revision application, beingGCriminal Revision No. 347 of 2002, was also filed, by the complainantTapinder Singh, seeking enhancement of sentence awarded by the TrialCourt. Both the Criminal Appeal and the Revision Application weredismissed by the High Court vide the impugned judgment and order dated4[th] February 2010, thereby affirming the conviction and sentence imposedupon the accused - appellants herein by the Trial Court.H

PRITINDER SINGH @ LOVELY v. THE STATE OF PUNJAB[B. R. GAVAI, J.]

3. Hence the present appeals.

4. We have heard Mr. Keshavam Chaudhri and Ms. JaspreetGogia, learned counsel appearing for the appellants and Mr. AbhinavBajaj, learned counsel appearing for the respondent.

5. Undisputedly, the present case is a case which rests oncircumstantial evidence. The law with regard to conviction in the caseof circumstantial evidence is very well crystalised in the case of SharadBirdhichand Sarda v. State of Maharashtra[1].

6. We may gainfully refer to the following observations of thisCourt in the case of Sharad Birdhichand Sarda (supra):

“153. A close analysis of this decision would show that thefollowing conditions must be fulfilled before a case against anaccused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is tobe drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only a grammatical but a legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973Crl LJ 1783] where the observations were made: [SCC para 19,p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the accused must beand not merely may be guilty before a court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty,

(3) the circumstances should be of a conclusive nature andtendency, A

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A(4) they should exclude every possible hypothesis except theone to be proved, and

(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent withthe innocence of the accused and must show that in all humanBprobability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of a case based on circumstantialevidence.”

7. It can thus be seen that this Court has held that theCcircumstances from which the conclusion of guilt is to be drawn shouldbe fully established. It has been held that the circumstances concerned“must or should” and not “may be” established. It has been held thatthere is not only a grammatical but a legal distinction between “may beproved” and “must be or should be proved”. It has been held that theDfacts so established should be consistent only with the hypothesis of theguilt of the accused, that is to say, they should not be explainable on anyother hypothesis except that the accused is guilty. It has been held thatthe circumstances should be of a conclusive nature and tendency andthey should exclude every possible hypothesis except the one sought tobe proved, and that there must be a chain of evidence so complete so asEnot to leave any reasonable ground for the conclusion consistent withthe innocence of the accused and must show that in all human probabilitythe act must have been done by the accused.

8. It is a settled principle of law that however strong a suspicionmay be, it cannot take place of a proof beyond reasonable doubt. In theFlight of these guiding principles, we will have to consider the presentcase.

9. The prosecution case mainly rests on the testimony of MalSingh (PW-2), ex-Sarpanch of village Maluka insofar as extra-judicialconfession is concerned. Insofar as the last seen theory is concerned,Gthe prosecution relies on the evidence of complainant Tapinder Singh(PW-3), step-son of appellant Manjit Kaur and the statement of JagtarSingh (PW-9). The evidence of Dr. Rakesh Kumar Goel (PW-5), MedicalExpert who has conducted the autopsy and SI Amritpal Singh (PW-11)would also be relevant.

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10. Mal Singh (PW-2), ex-Sarpanch of village Maluka has statedthat on 4[th] September 1998, appellants Manjit Kaur and Pritinder Singh@ Lovely had come to him in his village. He stated that both werenervous at that time. He further stated that appellant Manjit Kaur tookhim on one side and told him that Ravinder Singh, son of HarbhajanSingh was killed by them as he suspected that she was carrying on illicitrelations with persons who used to come to her.

11. It is relevant to note that the village Jawadi where PW-2 residesis 100 kms. away from the village of the appellants and deceased. It isfurther to be noted that his evidence is full of omissions and contradictions.Apart from that, he has admitted in this evidence that the IO AmritpalSingh (PW-11) was known to him for the last 4-5 years. In his evidence,PW-2 has clearly admitted that though he had a telephone in his housewhich was in a working condition, he neither informed the family membersof the deceased nor the police about the said extra-judicial confession.PW-2 further admitted that he did not convey any information of thesaid extra-judicial confession to the SHO, though he was known to him.PW-2 further admitted that one Mr. Gurcharan Singh was the Sarpanchof his village in those days. However, he did not ask the appellants to goand meet him.

12. The law with regard to extra-judicial confession has beensuccinctly discussed in the case of Munna Kumar Upadhyay aliasMunna Upadhyaya v. State of Andhra Pradesh through PublicProsecutor, Hyderabad, Andhra Pradesh[2], wherein this Court hasalso referred to its earlier judgments, which read thus:

“56. This Court has had the occasion to discuss the effect ofextra-judicial confessions in a number of decisions. In BalwinderSingh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC(Cri) 59] this Court stated the principle that: (SCC p. 265, para10)

“10. An extra-judicial confession by its very nature is rather aweak type of evidence and requires appreciation with a greatdeal of care and caution. Where an extra-judicial confession issurrounded by suspicious circumstances, its credibility becomesdoubtful and it loses its importance.”

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57. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158 : 1997SCC (Cri) 1249] the Court held that: (SCC p. 162, para 8)

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“8. … It is well settled that it is a rule of caution where thecourt would generally look for an independent reliablecorroboration before placing any reliance upon such extra-judicial confession.”

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58. Again, in Kavita v. State of T.N. [(1998) 6 SCC 108 : 1998SCC (Cri) 1421] the Court stated the dictum that: (SCC p. 109,para 4)

“4. There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very natureof things, it is a weak piece of evidence. It is to be proved justlike any other fact and the value thereof depends upon theveracity of the witness to whom it is made.”

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59. While explaining the dimensions of the principles governingthe admissibility and evidentiary value of an extra-judicialconfession, this Court in State of Rajasthan v. Raja Ram [(2003)8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCCp. 192, para 19)

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“19. An extra-judicial confession, if voluntary and true andmade in a fit state of mind, can be relied upon by the court.The confession will have to be proved like any other fact. Thevalue of the evidence as to confession, like any other evidence,depends upon the veracity of the witness to whom it has beenmade.”

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FThe Court further expressed the view that: (SCC p. 192, para 19)

“19. … Such a confession can be relied upon and convictioncan be founded thereon if the evidence about the confessioncomes from the mouth of witnesses who appear to be unbiased,not even remotely inimical to the accused, and in respect ofwhom nothing is brought out which may tend to indicate thathe may have a motive of attributing an untruthful statement tothe accused….”

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60. In Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230 :(2008) 2 SCC (Cri) 264] , the Court, while holding that reliance onextra-judicial confession by the lower courts in absence of other H

PRITINDER SINGH @ LOVELY v. THE STATE OF PUNJAB[B. R. GAVAI, J.]

corroborating material, was unjustified, observed: (SCC pp. 265-66, paras 87 & 89)

“87. Confession ordinarily is admissible in evidence. It is arelevant fact. It can be acted upon. Confession may undercertain circumstances and subject to law laid down by thesuperior judiciary from time to time form the basis for conviction.It is, however, trite that for the said purpose the court has tosatisfy itself in regard to: (i) voluntariness of the confession;(ii) truthfulness of the confession; (iii) corroboration.

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89. A detailed confession which would otherwise be withinthe special knowledge of the accused may itself be not sufficientto raise a presumption that confession is a truthful one. Mainfeatures of a confession are required to be verified. If it is notdone, no conviction can be based only on the sole basis thereof.”

61. Accepting the admissibility of the extra-judicial confession,the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC604 : (2011) 1 SCC (Cri) 79] held that: (SCC p. 611, paras 29-30)

“29. There is no absolute rule that an extra-judicial confessioncan never be the basis of a conviction, although ordinarily anextra-judicial confession should be corroborated by some othermaterial. [Vide Thimma and Thimma Raju v. State of Mysore[(1970) 2 SCC 105 : 1970 SCC (Cri) 320] , Mulk Raj v. Stateof U.P. [AIR 1959 SC 902 : 1959 Cri LJ 1219], Sivakumar v.State [(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470] (SCCparas 40 and 41), Shiva Karam Payaswami Tewari v. Stateof Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri)1320] and Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 :(2009) 3 SCC (Cri) 1082] ]

30. In the present case, the extra-judicial confession by Balwanhas been referred to in the judgments of the learned Magistrateand the Special Judge, and it has been corroborated by theother material on record. We are satisfied that the confessionwas voluntary and was not the result of inducement, threat orpromise as contemplated by Section 24 of the Evidence Act,1872.”

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62. Dealing with the situation of retraction from the extra-judicialconfession made by an accused, the Court in RameshbhaiChandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740 :(2009) 2 SCC (Cri) 881] held as under: (SCC pp. 772-73, para53)

“53. It appears therefore, that the appellant has retracted hisconfession. When an extra-judicial confession is retracted byan accused, there is no inflexible rule that the court mustinvariably accept the retraction. But at the same time it is unsafefor the court to rely on the retracted confession, unless, thecourt on a consideration of the entire evidence comes to adefinite conclusion that the retracted confession is true.”

63. Extra-judicial confession must be established to be true andmade voluntarily and in a fit state of mind. The words of thewitnesses must be clear, unambiguous and should clearly conveythat the accused is the perpetrator of the crime. The extra-judicialconfession can be accepted and can be the basis of conviction, ifit passes the test of credibility. The extra-judicial confession shouldinspire confidence and the court should find out whether thereare other cogent circumstances on record to support it. [Ref. Sk.Yusuf v. State of W.B. [(2011) 11 SCC 754 : (2011) 3 SCC (Cri)620] (SCC pp. 762-63, para 28) and Pancho v. State ofHaryana [(2011) 10 SCC 165 : (2012) 1 SCC (Cri) 223] .]”

13. From the evidence of PW-2, we find that it cannot be said thatthe extra-judicial confession is one which could be found to be credible.There appears to be no reason as to why the accused persons would go100 kms. away and confess to him. Apart from that, his conduct alsoappears to be unnatural. Though IO Amritpal Singh (PW-11) was knownto him and the telephone which was installed in his house was in a workingcondition, he did not find it necessary to inform him through telephone.We are, therefore, of the considered view that the courts below haveerred in relying on the extra-judicial confession made to PW-2.

14. That leaves with us another circumstantial evidence, i.e. theaccused was last seen in the company of the deceased and the deceasedwas found dead shortly thereafter. In this respect, the prosecution relieson the evidence of complainant Tapinder Singh (PW-3) and Jagtar Singh(PW-9). PW-3 is the step-son of appellant Manjit Kaur. He has himself

admitted in his evidence that the relations between him and appellantManjit Kaur were strained. As per his version, there used to be a quarrelbetween Ravinder Singh and appellant Manjit Kaur. He has stated thatRavinder Singh used to give beatings to Manjit Kaur. He has furtherstated in his evidence that Manjit Kaur had told his brother that, “he hasnot done good thing to her and that he will not survive any longer.” In thebackground of this version, his statement that on 3[rd] September 1998,when he was present in his house, appellant Pritinder Singh came in acar and took his brother Ravinder Singh along with Manjit Kaur on thepretext of going to Bhagta to purchase shoes appears to be improbable.It is his further version that appellant Manjit Kaur also took her gun withher.

15. He stated that since they did not return, it raised a suspicion inhis mind. He, therefore, along with Gurdeep Singh, went in search of thedeceased Ravinder Singh. They went to the Dera at village Malukawhere the Mahant of the Dera told them that Manjit Kaur and PritinderSingh had come there at around 09.30 PM. Thereafter, he stated thatthe Mahant told them that the appellants and the deceased had left theDera saying that they had to go to the house of Surjit Singh. Then thecomplainant and Gurdeep Singh started for the house of Surjit Singhand, when they reached the bridge of the minor canal at about 08.30AM, they saw the dead body of his brother on the pavement of theminor canal. He further stated that the body of his brother bore two gun-shots. The car was also standing there. The gun was lying in the caralong with a belt containing 7 cartridges. Thereafter, when he andGurdeep Singh were going to the Police Station to lodge the report, theyfound a police party led by SI Amritpal Singh (PW-11) near the busstand of V. Guruka Kotha, to whom he narrated the entire incident to,then and there. As already stated hereinabove, the relations betweenthe appellant Manjit Kaur and this witness are strained. As such, thetestimony of this witness, being an interested witness, will have to bescrutinized with greater caution and circumspection.

16. It appears to be improbable that, when appellant Manjit Kaurhad herself threatened the deceased that he would no longer be alive, areal brother would permit the deceased to accompany her and anotheraccused and, that too, when the accused was carrying a gun with her.We find that the evidence of this witness will have to be taken with apinch of salt.

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A17. Another witness supposedly giving credence to the last seentheory is Jagtar Singh (PW-9), son of Jagrup Singh. According to thiswitness, on 3[rd] September 1998, the accused along with deceasedRavinder Singh had come to the Dera when he had gone to visit there.He stated that when Ravinder Singh went to urinate, Manjit Kaur exhortedco-accused Pritinder Singh by saying that Ravinder Singh was aloneBand he should be done away with. PW-9 stated that, thereafter, theaccused took meals in the Lungar there and went out.

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18. The cross-examination of PW-9 shows that, though the incidentoccurred on 3[rd] September 1998, his statement was recorded on 10[th]September 1998. His evidence is full of contradictions and omissions.CThe admission in the cross-examination itself speaks volumes of his highcredentials. He has admitted that he, along with other accused, had beenconvicted for the offence under Section 307 of the IPC and had beensentenced to life imprisonment by the trial court, but had, however, beenacquitted by the High Court. He has further admitted that he had remainedDin jail for about 4 years in the murder case of one Gursewak Singh.

19. Though PW-9 has stated that on 3[rd] September 1998, accusedManjit Kaur had exhorted co-accused Pritinder Singh that Ravinder Singhwas alone and he should be done away with, when the death of thedeceased had occurred on the very next day, he did not find it necessaryEto inform anyone about it, including the police, till he was summoned tothe Police Station on 10[th] September 1998.

20. It is to be noted that though the dead body of the deceasedwas found on 4[th] September 1998, the statement of Mal Singh (PW-2)to whom the alleged extra-judicial confession was made, was recordedFon 9[th] September 1998. SI Amritpal Singh (PW-11) has admitted in hisexamination that Mal Singh (PW-2) was known to him. He has furtherstated that he did not know in how many cases of his Police Station MalSingh was cited as witness. It is further to be noted that the statement ofJagtar Singh (PW-9), as already stated hereinabove, was recorded on10[th] September 1998.G

21. Amritpal Singh (PW-11) has also admitted in his evidence thatthough the father of Ravinder Singh was alive in those days, he did notrecord his statement by visiting his village. PW-11 further admitted thathe also did not visit the house of the deceased Ravinder Singh to collectany evidence of motive or him leaving his house before the occurrence.

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22. We find that the conviction on the basis of such evidencecannot be sustained. Apart from that, it is to be noted that even accordingto PW-11, the gun which was recovered from the car had two emptycartridges (Ex. P10 and P11). Furthermore, the evidence of Dr. RakeshKumar Goel (PW-5), who had conducted the post-mortem of thedeceased, would show that there was no external exit wound, and wadand pellets were preserved and sealed. It is to be noted that apart fromnot collecting any evidence as to whether the said gun belonged to theappellant Manjit Kaur, even the Ballistic Expert has not been examinedto show that the wad and pellets were fired from the empty cartridges(Ex. P10 and P11).

23. It will be relevant to refer to the following observations of thisCourt in the case of Sukhwant Singh v. State of Punjab[3]:

“21. ………It hardly needs to be emphasised that in cases whereinjuries are caused by firearms, the opinion of the ballistic expertis of a considerable importance where both the firearm and thecrime cartridge are recovered during the investigation to connectan accused with the crime. Failure to produce the expert opinionbefore the trial court in such cases affects the creditworthinessof the prosecution case to a great extent.”

24. No doubt that this case has been recently distinguished by athree-Judges Bench of this Court in the case of Gulab v. State of UttarPradesh[4], relying on the earlier judgments of this Court in the cases ofGurucharan Singh v. State of Punjab[5 ]and State of Punjab v. JugrajSingh[6].

25. However, it is to be noted that the case of Jugraj Singh(supra) was a case of direct evidence, where there was evidence oftwo eye-witnesses. The present case is a case based on circumstantialevidence. In view of the serious doubt with regard to the credibility ofthe witnesses on the issue of extra-judicial confession and last seentheory, the failure to examine Ballistic Expert would, in our opinion, be aglaring defect in the prosecution case. We are, therefore, of theconsidered view that the prosecution has failed to prove the case beyond 3 (1995) 3 SCC 367

4 (2022) 12 SCC 6775 [1963] 3 SCR 5856 (2002) 3 SCC 234

A

B

C

D

E

FG

H

Areasonable doubt and, as such, the accused are entitled to benefit ofdoubt.

26. In the result, the appeals are allowed. The impugned judgmentand order of the High Court dated 4[th] February 2010 and the judgmentof the Trial Court dated 10[th] July 2001 are quashed and set aside.

B

27. The bail bonds of the appellants shall stand discharged. Pendingapplication(s), if any, shall stand disposed.

C

Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Appeals allowed.

D

E

F

G

H