Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 74

SUPREME COURT OF INDIA
ABHAY S. OKA, UJJAL BHUYAN, JJ.
Krishan – Appellant
Versus
State of Haryana – Respondent
Criminal Appeal No. 2351 of 2011
Decided On : 25-01-2024

Advocates appeared:
For the Appellant(s) : Mr. Satyendra Kumar, AOR
For the Respondent(s): Mr. S. Udaya Kumar Sagar, A.A.G. Dr. Monika Gusain, AOR

IMPORTANT POINT
Murder – Non-examination of independent witnesses though available, weakens prosecution case.

Headnote:
Indian Penal Code, 1860 – Section 302 – Arms Act, 1959 – Section 25 – Murder of two persons – Life sentence – Prosecution case is not based on circumstantial evidence – It is specifically based on evidence of alleged eye-witnesses – Apart from eyewitnesses, prosecution relied upon recovery of alleged weapon of offence at instance of appellant and fact that appellant disclosed place where he had thrown dead bodies – Prosecution case not supported by eyewitnesses – Recovery was allegedly made one month and four days after occurrence – Recovery was made from open space in a garden which was easily accessible to many – Though independent witnesses were available, they were not made witnesses to Panchanama made pursuant to alleged statement made by appellant – Recovery of weapon at instance of appellant cannot be accepted as reliable – Once evidence of recovery is disbelieved, it was a case of no evidence as eyewitnesses did not support prosecution – Benefit of doubt must be extended to appellant – Appellant acquitted of offences alleged against him. (Paras 6, 7, 8, 11 and 12)
Facts of the case:
Appellant is accused no.2, who, along with accused no.1 – Mahesh, was convicted for offences punishable under Section 302 of IPC and Section 25 of Arms Act. Appellant and co-accused were awarded life imprisonment for offence punishable under Section 302 of IPC. Conviction and sentence of appellant have been confirmed by High Court by impugned judgment.
Findings of Court:
Impugned judgment and order dated 02nd May 2011 in Criminal Appeal No.942-DB of 2007 passed by High Court of Punjab and Haryana and the judgment and order dated 19th September 2007 in Sessions Case No.13 of 2004 passed by Additional Sessions Judge, Gurgaon are hereby quashed and set aside insofar as the appellant is concerned, and he stands acquitted of offences alleged against him.
Result : Appeal allowed.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. The appellant is accused no. 2, who, along with accused no. 1-Mahesh, was convicted for the offences punishable under Section 302 of the Indian Penal Code (for short ‘IPC’) and Section 25 of the Arms Act. The appellant and the co-accused were ordered to undergo life imprisonment for the offence punishable under Section 302 of the IPC. The conviction and sentence of the appellant have been confirmed by the High Court by the impugned judgment.

2. It is a case of the murder of Pawan and Ajju Chaudhary. According to the prosecution case, on 03rd of January 2004, the deceased Pawan went to Rohini to meet his ailing sister Sushila. Dharmender (PW-2) is the complainant. Dharmender is the brother of the deceased Pawan. According to Dharmender, the deceased Pawan had fallen into bad company and cases of dacoity and theft were registered against him. He stated that on 04th January 2004, he enquired with his sister, who told him that the deceased Pawan had returned after meeting her. According to Dharmender, around 09:00 a.m. on 05th January 2004, he was informed by someone that his brother Pawan had been shot dead. Thereafter, the bodies of both the deceased were found by the police.

3. The prosecution examined a total of 20 witnesses. The prosecution relied upon the evidence of PW-1/Mukesh and PW-3/Vijender as they were allegedly the eyewitnesses. Dharmender (PW-2) was also examined. The other two material witnesses are PW-15 Sub-inspector Desh Raj and PW-20 DSP Puran Chand. At the relevant time, PW-20 was the Investigating Officer. Both the witnesses are relevant on the issue of recovery of the weapon of the offence at the appellant's instance, as there are no independent witnesses to the recovery. According to the case of the prosecution, the report of the ballistic expert showed that the bullets recovered from the body of the deceased Pawan were fired from the country-made pistol, which was recovered at the instance of the appellant.

SUBMISSIONS

4. Shri Gaurav Agrawal, learned counsel appointed as amicus curiae submitted that the case of the prosecution is not based on circumstantial evidence but on the eye-witness account of witnesses PW-1 and PW-3. He submitted that neither of the eyewitnesses supported the prosecution and both were declared hostile. He urged that in the absence of any independent witness, the recovery of the alleged weapon at the instance of the appellant cannot be relied upon. Moreover, the recovery is from an open place accessible to all, and that also happened more than one month after the date of the incident. He pointed out that PW-2/Dharmender had deposed that as deceased Pawan was on inimical terms with one Naresh Yadav, he suspected that Pawan and Ajju Chaudhary must have been either murdered by Naresh Yadav or by someone at his instance. By pointing out the testimony of PW-20, he submitted that no investigation was carried out about the involvement of Naresh Yadav, who was the first suspect. He would, therefore, submit that the prosecution has failed to prove the case beyond a reasonable doubt.

5. Ms. Bina Madhavan, the learned counsel appearing for the State of Haryana, submitted that the recovery of the weapon of assault had been proved to have been made at the instance of the appellant. The report of the expert establishes that the bullet found on the dead body of deceased Pawan could have been fired from the weapon recovered at the instance of the appellant. She placed reliance on the following decisions:

(2010) 14 SCC 129

(ii) Golakonda Venkateswara Rao vs. State of A.P., (2003) 9 SCC 277

(iii) State of Punjab vs. Jagir Singh and Others, (1974) 3 SCC 277

(iv) State, Govt. of NCT of Delhi vs. Sunil and Another, (2001) 1 SCC 652

(v) Pawan Kumar @ Monu Mittal vs. State of U.P. and Another, (2015) 7 SCC 148

(vi) Suresh Chandra Bahri vs. State of Bihar, 1995 Supp. (1) SCC 80

She relied upon the decisions in support of her contention that con

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