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SUPREME COURT OF INDIA
B.V. NAGARATHNA, MANOJ MISRA, JJ.
State Of Punjab - Appellant
Versus
Kewal Krishan - Respondent)
Criminal Appeal No. 2128 of 2014
Decided on : 21-06-2023
(A) Indian Penal Code, 1860 – Section 302 – Murder – Circumstantial evidence – Acquittal by High Court – To convict an accused on the basis of circumstantial evidence, prosecution must prove beyond reasonable doubt each of incriminating circumstances on which it proposes to rely – Circumstance(s) relied upon must be of a definite tendency unerringly pointing towards accused’s guilt and must form a chain so far complete that there is no escape from conclusion that within all human probability it is accused and no one else who had committed crime and they (it) must exclude all other hypothesis inconsistent with his guilt and consistent with his innocence – In instant case, deceased was found dead in his own house where accused did not reside – Deceased was allegedly last seen alive in company of accused – However, there was no evidence as to when accused left house and that no one else could have entered the house in interregnum, other intervening circumstances including hand of some third person in crime was not ruled out by prosecution evidence – There was no serologist report to connect knife with crime – Extra-judicial confession is a very weak type of evidence and solely on its basis a conviction is not ordinarily to be recorded – Incriminating circumstances were not proved beyond reasonable doubt and otherwise also circumstance of last seen was inconclusive – There was no occasion to place burden on accused with aid of Section 106 of Evidence Act to prove his innocence or to disclose that he parted company of deceased before his murder – High Court was justified in setting aside order of conviction recorded by Trial Court – View taken by High Court is a plausible view – Appeal dismissed. (Paras 17, 18, 19, 20, 21, 22, 23 and 24)
(B) Indian Evidence Act¸1872 – Section 106 – Proof of fact – Section 106 of Evidence Act does not absolve prosecution of discharging its primary burden of proving prosecution case beyond reasonable doubt – It is only when prosecution has led evidence which, if believed, will sustain conviction or which makes out a prima facie case, question arises of considering facts of which burden of proof would lie upon accused. (Para 22)
(C) Constitution of India – Article 136 – Appeal by Special Leave – Normally, Supreme Court is reluctant to interfere with order of acquittal – But when it appears that High Court has on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to facts of case and ignoring some of most vital facts, acquitted respondent and order of acquittal passed by High Court has resulted in a grave and substantial miscarriage of justice, extraordinary jurisdiction under Article 136 of Constitution of India may rightfully be exercised. (Paras 13)
Facts of the case:
Present appeal assails judgment and order of High Court of Punjab & Haryana dated 01.05.2012 rendered in Criminal Appeal No. 372 of 2002, whereby judgment and order of trial Court convicting and sentencing respondent under Section 302, IPC has been set aside and appellant (respondent herein) has been acquitted.
Findings of Court:
Ordinarily, a person makes a confession either to absolve oneself of burden of guilt or to seek protection under the hope that person to whom confession is made would protect him. Normally a confession to absolve oneself of guilt is made to a person on whom confessor reposes confidence.
Result : Appeal dismissed
JUDGMENT :
1. Counsel for the appellant is present. None has appeared for the respondent. The office has submitted a report that notice has been served on the sole respondent, yet no one has entered appearance on his behalf.
2. We have heard Mr. Mohit Siwach, learned counsel for the appellant.
3. This appeal assails the judgment and order of the High Court of Punjab & Haryana (for short the High Court) dated 01.05.2012 rendered in Criminal Appeal No. 372 of 2002, whereby the judgment and order of the trial Court convicting and sentencing the respondent (Kewal Krishan) under Section 302, IPC has been set aside and the appellant (respondent herein) has been acquitted of the charges for which he was tried.
4. The prosecution case rests on evidence in respect of following circumstances:
(a) The deceased was last seen alive in his own house in the company of the accused at about 7.00 p.m. on 10.12.1998 by PW-2.
(b) Dead body of the deceased with multiple injuries was found in his house by PW-6, nephew of the deceased, on 12.12.1998 at around 1.00 pm.
(c) Autopsy conducted on 12.12.1998, at about 4.15pm, reflected that death of the deceased could have occurred within two days, as a result of shock and haemorrhage, due to ante mortem incised wounds.
(d) Accused made an extra-judicial confession before P.W-3 on 25.12.1998 and was thereafter handed over to the police on the same day.
(e) Accused made a disclosure to the police on 25.12.1998 with regard 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 found on deceased’s body could have been caused by use of that Khanjar.
5. The trial Court found those circumstances proved and forming a chain so complete as to conclusively indicate that it was the accused and no one else who committed the murder and thus convicted and sentenced the accused accordingly.
6. Aggrieved by his conviction, the accused went in appeal to the High Court.
7. The High Court noticed that the accused in his statement under section 313 of the Code of Criminal Procedure, 1973 had denied the incriminating circumstances appearing against him in the prosecution evidence and had claimed that he was arrested on 12.12.1998 itself on false implication. Thereafter, the High Court, on a careful analysis of the evidence, more particularly the statement made by PW-2 that on 13.12.1998 he had disclosed to the police about the involvement of the accused, doubted the date of arrest of the appellant (i.e., 25.12.1998), as set up by the prosecution, and opined that the statement of PW-2 probabilizes the claim of the accused that he was arrested on 12.12.1998 itself. The High Court found PW-2’s evidence of last seen not convincing and reliable inasmuch as if on 13.12.1998 PW-2 had informed the police about his suspicion in respect of the involvement of the accused, the police would have arrested the accused forthwith and not waited till 25.12.1998.
But the record indicated that the name of the accused came to light for the first time on 25.12.1998. In these circumstances, the High Court found PW-2 unreliable, as being a witness who was set up later. Otherwise also, the High Court found that last seen circumstance did not conclusively point towards the guilt of the accused by excluding all hypotheses consistent with his innocence, inasmuch as there was a huge time gap between the date and time when the deceased was last seen in the company of the accused and discovery of deceased’s dead body. Further, the High Court took note of the circumstance that the autopsy conducted on 12.12.1998 at 4.15 pm indicated occurence of rigor mortis on lower limbs, which suggested that death could have occurred within 30 hours of the autopsy, thereby throwing open the possibility of death occurring much later than at 7.00 pm on 10.11.1998, when the deceased was allegedly seen in the company of the accused. Taking note of the above and bearing in mind
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