2007 Supreme(SC) 527

2007(4) Supreme 720
Supreme Court of India
(From Punjab & Haryana High Court at Chandigarh)
S.B. Sinha & Markandey Katju, JJ.
Hatti Singh — Petitioner
versus
State of Haryana — Respondent
Appeal (crl.) 922 of 2006
Decided on : 17-04-2007
Counsel for the Parties :
For the Appellant : Rishi Malhotra and Prem Malhotra, Advocates.
For the Respondent : Rajeev Gaur “Naseem” and T.V. George, Advocates.

Important Point
If a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the accused could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt.

Headnote:Indian Penal Code, 1860 — Sections 364, 302, 201 rw/s 34 — Murder after adduction — Circumstantial evidence — Deceased, owner of two Maruti Vans used to ply them on hire — On the day of Incident, van was hired by someone but deceased did not return thereafter — Recovery of a dead body after 14 days of the incident from a canal — Identification of dead body of clothes — Recovery of pistol and cartridges as also some belongings of the deceased including his photograph and electricity bill from possession of appellant — A ring of deceased allegedly recovered from possession of another accused who has been acquitted — Evidence of ‘last seen’ in company of appellant not proved — Whether appellant could have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt — (No).

       Held : It may be true that there had been some recoveries from the appellant including a purse and an electricity bill; but then a ring was also recovered from Naresh. He has been acquitted. A watch was recovered from another accused. The only distinctive features to hold the appellant guilty of commission of the offences, while acquitting the other three are only ‘last seen’ and a confession leading to recovery of number plate of the vehicle. Other accused were also last seen with the deceased, if PW-10 is to be believed.

       (Para 21)

       Held : The evidence of last seen by itself apart from having not been proved in this case cannot be of much significance. It may provide for a link in the chain. But unless the time gap between the deceased of having been last seen in the company of the accused persons and the murder is proximate, it is difficult to prove the guilt of the accused only on that basis.

       (Para 22)

       Held : 24.There cannot be any doubt that conviction can be based on circumstantial evidence, but therefor the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and is inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to be cogently and firmly established. They have to be taken into consideration cumulatively.They must be able to conclude that within all human probability the accused committed the crime. [See Geejaganda Somaiah v. State of Karnataka-AIR 2007 SCW 1681].

       (Para 24)

       Held : 27.The learned counsel for the State would submit that recovery of the articles would raise a presumption under Section114 of the Indian Evidence Act. Application of such a presumption is limited. A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt.

        (Para 27)

       Evidence Act, 1872 — Section 3 — Circumstantial evidence — Conviction based on — Prosecution must establish that chain of circumstances only consistently point to the guilt of the accused and is inconsistent with his innocence — Circumstances from which an inference of guilt is sought to be drawn are required to be cogently and firmly established — They have to be taken into consideration cumulatively — Indian Penal Code, 1860 — Section 302. (Para 24)

       Evidence Act, 1872 — Section 114 — Presumption — Applicability — A Person found to be in possession of property belonging to deceased — On such presumption alone, accused could not have been convicted for commission of murder particularly when on the same evidence other persons had been given benefit of doubt — Indian Penal code, 1860 - Section 302, 364, 201 rw/s. 34. (Para 27)

       Indian Penal Code, 1860 — Section 302 — Murder — Identification of dead body on basis of clothes found on dead body — Not reliable having regard to discrepancies on record.

       Held : The dead body was identified before the Autopsy Surgeon by Satbir Singh son of Dalip Singh and Ram Chander son of Shree Ram. In the First Information Report, the clothes, which were worn by the deceased, as disclosed by PW-9 Rajbir, was said to be of blue colour with white stripes. The clothes were identified on the basis of the fact that the same had been tailored by Satbir Singh. He was one of the brothers of the deceased. He had not been examined for reasons best known to the prosecution. The identifiable tailoring mark on the basis whereof, the clothes were said to have been identified had also not been proved. In the First Information Report, the description of the deceased was given as under :

       “Wheatish colour, stout body, height approximately 5-6", aged 35 years, wearing pants and shirt of blue colour with white stripes and he is sporting small beard–”

       (Para 12)

       Held : However, in the inquest report, the shirt found on the dead body was said to be of cream colour. In the post-mortem report, the colour of the shirt was said to be bluish brown lying separately with the body and torn at places. It is, therefore, difficult to agree with the findings of the learned Trial Judge and the High Court in regard to the identification of the dead body with reference to the clothes found on the dead body.

       (Para 13)