STATE OF PUNJAB VERSUS KEWAL KRISHAN
STATE OF PUNJAB VERSUS KEWAL KRISHAN CASE
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Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2128/2014
STATE OF PUNJAB ..APPELLANT(S)
VERSUS
KEWAL KRISHAN ..RESPONDENT(S)
J U D G M E N T
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
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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 4.15
pm, 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.
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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
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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 that the accused did not reside with the
deceased and no evidence was led that except the
accused no one else could have entered the house
of the deceased in the interregnum, the last seen
circumstance was found inconclusive.
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8. In respect of the circumstance of recovery
of the knife, the High Court, firstly, doubted the
date of arrest, as noticed above, and, secondly,
noticed that there was no serologist report to
ascertain whether the knife was stained with human
blood as to connect it with the crime.
9. The High Court also discarded the extra
judicial confession on the ground that there was
no cogent explanation set out in the prosecution
evidence to demonstrate as to why the accused
would make a confession to P.W.3, particularly,
when the accused had no significant relationship
with PW-3 and PW-3 could not have helped him. The
extra judicial confession was also doubted on the
ground that the date of arrest of the accused
(i.e., 25.12.1998) appeared doubtful, inasmuch as
there was a high probability of the accused being
arrested earlier i.e., 12.12.1998, as claimed by
him, because from the statement of PW-2 it
appeared that the police was informed by him on
13.12.1998 itself in respect of his suspicion
regarding the involvement of the accused.
10. After a thorough analysis of the evidence
as highlighted above, the High Court found that,
firstly, the incriminating circumstances were not
proved beyond reasonable doubt and, secondly, they
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did not constitute a chain so complete as to
conclusively indicate that it was the accused and
no one else who, in all human probability,
committed the crime. Consequently, the High Court
set aside the order of the trial Court and
acquitted the accused of the charge.
11. Learned counsel for the State (appellant)
has submitted that there was no proven enmity of
the witnesses with the accused. In these
circumstances, there was no occasion for the High
Court to doubt the testimony of the prosecution
witnesses in respect of the incriminating
circumstances laid out by the prosecution. In such
a situation there was no justification to reverse
the conviction recorded by the trial Court. It was
argued that the deceased was last seen alive,
having liquor with the accused, in the evening of
10.12.1998 and thereafter the deceased was not
seen alive by anyone. The autopsy report
probabilizes death of the deceased at around the
same time when he was last seen in the company of
the accused. In these circumstances, the burden
was on the accused to prove as to when he left
company of the deceased. In absence whereof,
coupled with other circumstances, accused’s
conviction was justified. Therefore, the High
Court fell in error by setting aside the judgment
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of the trial Court and acquitting the respondent.
12. We have considered the submissions of the
learned counsel for the appellant and have perused
the record carefully.
13. Before we proceed further, it would be
apposite to notice the law as to when it would be
appropriate for this Court, exercising power under
Article 136 of the Constitution of India, to
interfere with an order of acquittal passed by the
High Court while reversing an order of conviction
recorded by the Trial Court. The law in this
regard is well settled. Normally, this Court is
reluctant to interfere with an order of acquittal.
But when it appears that the High Court has on an
absolutely wrong process of reasoning and a
legally erroneous and perverse approach to the
facts of the case and ignoring some of the most
vital facts, acquitted the respondent and the
order of acquittal passed by the High Court has
resulted in a grave and substantial miscarriage of
justice, extraordinary jurisdiction under Article
136 of the Constitution of India may rightfully be
exercised (See : State of U.P. v. Sahai, (1982) 1
SCC 352).
14. In State of M.P. v. Paltan Mallah, (2005) 3
SCC 169 reiterating the same view it was observed:
“8…….. This being an appeal against
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acquittal, this Court would be slow in
interfering with the findings of the
High Court, unless there is perverse
appreciation of the evidence which
resulted in serious miscarriage of
justice and if the High Court has taken
a plausible view this Court would not
be justified in interfering with the
acquittal passed in favour of the
accused and if two views are possible
and the High Court had chosen one view
which is just and reasonable, then also
this Court would be reluctant to
interfere with the judgment of the High
Court.”
15. In a recent decision rendered by this Court
in Basheera Begam v. Mohd. Ibrahim, (2020) 11 SCC
174, it was observed:
“190. ………..Reversal of a judgment and
order of conviction and acquittal of
the accused should not ordinarily be
interfered with unless such
reversal/acquittal is vitiated by
perversity. In other words, the court
might reverse an order of acquittal if
the court finds that no person properly
instructed in law could have upon
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analysis of the evidence on record
found the accused to be “not guilty”.”
16. In light of the law noticed above, we would
have to examine, firstly, whether the High Court
ignored or misread any material piece of evidence
which has resulted in miscarriage of justice;
secondly, whether there is any perversity in the
appreciation of evidence; and, thirdly, whether
the view taken by the High Court is a plausible
view.
17. This is a case based on circumstantial
evidence. It is trite law that to convict an
accused on the basis of circumstantial evidence,
the prosecution must prove beyond reasonable doubt
each of the incriminating circumstances on which
it proposes to rely; the 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
the conclusion that within all human probability
it is the accused and no one else who had
committed the crime and they (it) must exclude all
other hypothesis inconsistent with his guilt and
consistent with his innocence.
18. In the instant case, we notice from the
record that the dead body of the deceased, lying
in a naked condition in his house, was first
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discovered by PW-6, nephew of the deceased, on
12.12.1998 at around 1.00 pm. Upon discovery of
the dead body, on the information provided by PW6, FIR was registered against unknown accused and
inquest etc. was carried out. What is important is
that the name of the accused did not surface on
the record till 25.12.1998, that is when he was
allegedly handed over to the police by PW-3 upon a
confession made by him before PW-3. PW-2, the sole
witness of the last seen circumstance, in his
deposition in court, stated that he had expressed
his suspicion in respect of accused’s involvement
to the police on 13.12.1998. The High Court opined
that if PW-2 was aware of the last seen
circumstance and had made such a disclosure, there
was no reason for the police not to act against
the accused till 25.12.1998. Therefore, the
statement of PW-2 in respect of imparting
knowledge of the last seen circumstance appeared
doubtful and it appeared that the witness was set
up to create link evidence. The High Court also
noticed that the alleged date and time when the
deceased was last seen alive was at quite a
distance from the date and time when the deceased
was found dead. Indisputably the deceased was
found dead in his own house where the accused did
not reside. The deceased was allegedly last seen
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alive in the company of the accused in the evening
at around 7 pm of 10.12.1998 whereas the body of
the deceased was found 2 days later, on
12.12.1998. Autopsy report, based on autopsy
conducted at around 4.15 pm on 12.12.1998, noted
occurance of rigor mortis in the lower limbs,
which gives rise to a possibility of death being
within 30 hours of the autopsy, meaning thereby
that death might have occurred much after 7 pm of
10.12.1998. In such circumstances, bearing in mind
that the deceased was found dead in his own house,
where the accused did not reside, and there was no
evidence as to when the accused left the house and
that no one else could have entered the house in
the interregnum, other intervening circumstances
including hand of some third person in the crime
was not ruled out by the prosecution evidence. For
the reasons above, we are of the considered view
that the High Court was justified in doubting the
testimony of PW-2 and finding the last seen
circumstance inconclusive in pointing towards the
guilt of the accused by excluding other hypotheses
consistent with his innocence.
19. As regards recovery of the Khanjar (knife)
is concerned, the same was denied by the accused
and there was no serologist report to connect it
with the crime. Therefore, it had very little
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incriminating value to sustain conviction on its
own basis. Moreover, the High Court, on strength
of the circumstances appearing in the evidence,
doubted the date of arrest and, upon consideration
of the circumstances, accepted the possibility of
the arrest of the accused being much earlier in
point of time, as claimed by the accused, than
what was set up by the prosecution. In such
circumstances, the recovery, which was made on
25.12.1998, allegedly on disclosure made by the
accused on 25.12.1998, becomes doubtful. The view
of the High Court in this regard cannot be termed
perverse as to warrant interference by this Court.
20. Insofar as the evidence of extra judicial
confession made by the accused is concerned, the
same was provided by PW-3, a member of the
Panchayat wherein the deceased resided. Ordinarily
a person makes a confession either to absolve
oneself of the burden of guilt or to seek
protection under the hope that the person to whom
confession is made would protect him. Normally a
confession to absolve oneself of the guilt is made
to a person on whom the confessor reposes
confidence. The High Court noticed that there was
no evidence to demonstrate that the accused had
any prior relations with PW-3 or that the accused
hoped for, or sought, any help from PW-3 and,
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therefore, made the confession to him. Notably,
the accused denied making any such confession. For
the reasons above, including other, which need not
be put on record, the High Court discarded the
circumstance of the accused making a confession
before PW-3 on 25.12.1998. Otherwise also, an
extra judicial confession is a very weak type of
evidence and solely on its basis a conviction is
not ordinarily to be recorded.
21. The argument of the learned counsel for the
appellant that since there was no proven enmity
between the accused and the witnesses therefore
there was no reason to disbelieve them, would not
be of much help to the appellant because this is a
case based on circumstantial evidence. In a case
based on circumstantial evidence not only do each
of the incriminating circumstances have to be
proved beyond reasonable doubt but those
incriminating circumstances must constitute a
chain so far complete that there is no escape from
the conclusion that within all human probability
it is the accused who has committed the crime and
further, cumulatively, they must exclude all
hypotheses consistent with the innocence of the
accused and inconsistent with his guilt. As we
have found that the incriminating circumstances
were not proved beyond reasonable doubt and
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otherwise also the circumstance of last seen was
inconclusive, in our view, the High Court was
justified in setting aside the order of conviction
recorded by the Trial Court.
22. The argument that the accused has failed to
discharge his burden under section 106 of the
Evidence Act and, therefore, his conviction was
justified is misconceived. Section 106 of the
Evidence Act does not absolve the prosecution of
discharging its primary burden of proving the
prosecution case beyond reasonable doubt. It is
only when the prosecution has led evidence which,
if believed, will sustain a conviction, or which
makes out a prima facie case, the question arises
of considering facts of which the burden of proof
would lie upon the accused. (See: Shivaji
Chintappa Patil v. State of Maharashtra (2021) 5
SCC 626). Here, as we have discussed above,
firstly, the incriminating circumstances were not
proved beyond reasonable doubt and, secondly, they
do not form a chain so complete from which it
could be inferred with a degree of certainty that
it is the accused and no one else who, within all
human probability, committed the crime. In these
circumstances, there was no occasion to place
burden on the accused with the aid of section 106
of the Evidence Act to prove his innocence or to
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disclose that he parted company of the deceased
before his murder.
23. For all the reasons above, while keeping in
mind that the view taken by the High Court is a
plausible view and that it was not pointed out
that any material evidence was ignored or misread,
we do not find a good reason to interfere with the
order of acquittal passed by the High Court.
24. The appeal is accordingly, dismissed.
....................J.
[B.V. NAGARATHNA]
....................J.
[MANOJ MISRA]
NEW DELHI,
JUNE 21, 2023.
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