2006 Supreme(SC) 1183

2006(9) Supreme 338
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and Markandey Katju, JJ.
Vikramjit Singh @ Vicky - Appellant
versus
State of Punjab - Respondent
Criminal Appeal No. 1459 of 2005
Decided on 24-11-2006
Counsel for the Parties :
For the Appellant : S. Jaspal Singh, Sr. Advocate, Vipin Gogia, Mrs. Jaspreet Gogia, Ms. Vinita Goyal and Girinder Pal Singh, Advocates.
For the Respondent : Mrs. Kawaljit Kochar, D. Jha and Arun K. Sinha, Advocates.

IMPORTANT POINT
Where two views of a story appear to be probable, the one that was contended by accused should be accepted.

Headnote:Indian Penal Code, 1860 - Section 302 - Evidence Act, 1872 - Section 106 - Appellant convicted for murder of wife - He took deceased from her parent’s house in his car and deceased was wearing all her gold ornaments - Both deceased and appellant were found in injured condition in Car - Mother of deceased lodged FIR that appellant murdered deceased by knife injuries as appellant had illicit relation with a girl - Four injuries on person of appellant were opined by doctor caused by friendly hand - Some ornaments were recovered from dicky of a scooter belonging to co-accused, a proclaimed offender - Mother of deceased and all material witnesses though supported prosecution case in their examination-in-chief, did not support the case at all in cross-examination - Trial Court convicted appellant and awarded death penalty and High Court upheld conviction and sentence - Appeal - It was case of two versions and trial Court proceeded to weigh probability of both and opined that appellant having not been able to prove its case, prosecution case should be accepted - Approach was not correct - Section 106 Evidence Act did not relieve prosecution to prove its case beyond doubt - Only because appellant stopped Car at distance of about 13 feet from main road, same by itself would not give an inference that he did so deliberately to facilitate attack - Conduct of accused must have nexus with crime committed - Though doctor opined some injuries on appellant could be caused by friendly hand, he did not state about other injuries - Knife was recovered purportant to confession made by appellant but recovery was from place of occurrence without something more - Recovery of some jewellery was not at instance of appellant - Conviction could not be sustained.

       Held : In the instant case, there are two versions. The learned Sessions Judge proceeded to weigh the probability of both of them and opined that the appellant having not been able to prove its case, the prosecution case should be accepted. In our opinion, the approach of the learned Sessions Judge was not correct. The High Court also appeared to have fallen into the same error.(Para 12)

       Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt.(Paras 13 & 14)

       The accused was entitled to maintain his silence. Only because he stopped the car at a distance of about 13 feet from the main road, the same by itself would not lead to a conclusion that he did so deliberately in order to facilitate attack. Conduct of an accused must have nexus with the crime committed. It must form part of the evidence as regards his conduct either preceding, during or after commission of the offence as envisaged under Section 8 of the Indian Evidence Act. No such inference was drawn, nor in the fact situation obtaining herein such an inference could be drawn. Whether any obstacles were put or were not found to have been placed on road by the attackers is also a question which would be of not much significance as no such evidence was brought on record. If some persons stand on the road, the same may itself be sufficient for a driver to stop his vehicle. In any event, it does not appear that such a question was even put to the appellant in his examination under Section 313 of the Code of Criminal Procedure. (Para 16)

       The nature of injuries on the person of the appellant, in our opinion, even does not form a circumstantial evidence which would prove the prosecution case. The doctor opined that injuries Nos. 1, 4, 5 and 6 could be caused by friendly hand but he has not stated so about the other injuries. The courts below did not consider the effect thereof. Furthermore, as noticed hereinbefore, the prosecution witnesses have turned hostile. It may be an act of dishonesty on their part as contended by Mrs. Kochar but by reason thereof only we cannot hold the appellant guilt of commission of a heinous offence. In view of their statements in the cross-examination giving a complete go bye to what had been stated in the examination-in-chief, it is not possible to rely even upon a part of their statement.(Paras 20 and 21)

       A knife was recovered purported to be pursuant to a confession made by the appellant. The statement was admissible in evidence but the knife was recovered from the place of incident without something more which would lead to a discovery of fact, it, therefore, may not have much evidentiary value. [See Kora Ghasi v. State of Orissa, AIR 1983 SC 360 : (1983) 2 SCC 251]. Furthermore, recovery of a knife alone is not sufficient to arrive at a finding of guilt. Some jewellery might have been recovered from the accused No. 2 but such recovery was not made at the instance of the appellant. It was said to be a chance recovery. There is nothing on record to show that accused No. 2 was known to the appellant. PW-8 Amarjit Singh who has proved recoveries stated that Arvind Sharma ran away after leaving his scooter. Yet again PW-4 in her cross-examination denied that the deceased was having the said jewellery on her person. We have noticed hereinbefore that both the learned Sessions Judge as also the High Court proceeded to compare the probabilities of two views. It is now beyond any cavil that where two views of a story appear to be probable, the one that was contended by the accused should be accepted.(Paras 24 to 26)