REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1254-1255 OF 2011
(Arising out of S.L.P. (Crl.) Nos.7110-7111 of 2010)
Sunil Rai @ Paua & Ors. .......Appellants
Versus
Union Territory, Chandigarh .......Respondent
J U D G M E N T
AFTAB ALAM, J.
1. Leave granted.
2. The three appellants are serving life sentences for committing murder
of one Dile Ram. They were never on bail and have, thus, completed over
ten years of incarceration. We, therefore, intended to grant leave in the case
and release the appellants on bail. But, the counsel for the respondent stated
that once released on bail it will be almost impossible to get hold of the
appellants. We, accordingly, proceeded to hear the case on merits at the
stage of special leave itself and at the conclusion of hearing we are dismayed
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to find that the appellants were convicted and sentenced on completely
insufficient evidence.
3. The appellants are migrant workers who came to Chandigarh from
different parts of the country in search of livelihood and were trying to eke
out a living by working as rickshaw pullers. Appellant no.1, Sunil Rai alias
Paua (accused no.1) had his money and clothes stolen by someone breaking
open the lock of the box under the passenger seat of the rickshaw and the
quarrel that took place, as a result of it, is said to be at the root of the alleged
offence.
4. According to the prosecution case, on March 29, 2001 at about
8:30 p.m. Arun Kumar (PW-14), Shailendra Kumar Pandey (PW-9) and one
Jaspreet Singh alias Chikna were present near the GPO, Sector 17,
Chandigarh. Appellant no.2, Sher Bahadur alias Sheru (accused no.2) was
also present there. At that time Sunil Rai and appellant no.3, Ram Lal
(accused no.3) came there. Sunil Rai was agitated as his money and clothes
were stolen. He accused Sher Bahadur of committing the theft and an
altercation took place between them. Sher Bahadur told Sunil Rai that he
had not stolen his money or the other articles and it might have been the
work of Dile Ram. He also told Sunil Rai that he would make Dile Ram
return his money and clothes. It was at this stage that Dile Ram also arrived
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at the scene coming from the side of Jagat Cinema. Sunil Rai caught hold of
Dile Ram by his neck and asked him to return his money and clothes
otherwise he would kill him. A scuffle took place between Sunil Rai and
Dile Ram but the latter got himself freed and ran away from there. The three
accused went after him yelling and shouting that they would not spare him.
12 hours later, at about 8:30 in the morning of March 30, 2001, an
unidentified person was found lying in a badly injured condition at a spot
near the local bus stand on the rear side of Neelam Cinema, situate at the
sector 17 market. There were injuries on his head and face. At the spot
where he lay there was a pouch of liquor (Ex. P32), a piece of brick (Ex.
P1), a piece of stone (Ex. P2) and another piece of hard concrete. The blood
flowing from the injuries had stained the earth at the spot, a sample of which
was collected and produced in court as Ex. P3.
5. The injured was sent to hospital where he died. He was later identified
as Dile Ram who, according to the prosecution, was last seen the previous
evening, fleeing away with the appellants in pursuit yelling and shouting
threats at him.
6. The three accused were put on trial for the murder of Dile Ram before
the Sessions Judge, Chandigarh, who by judgment dated June 12, 2006
passed in Sessions Case no.02 of July 30, 2001 convicted all of them under
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section 302 read with section 34 of the Penal Code and by orders dated June
13 & 15, 2006, sentenced them to rigorous imprisonment for life and a fine
of Rs.5,000/- each with the direction that in default of payment of fine they
would undergo rigorous imprisonment for 1 year. The appellants went to the
High Court in two separate appeals, one by Sunil Rai (Criminal Appeal
no.580-DB of 2006) and the other by the other two appellants (Criminal
Appeal no.523-DB of 2006). Both the appeals were heard together and were
dismissed by a division bench of the High Court by judgment and order
dated March 5, 2008. The matter is now before this Court in appeal by grant
of special leave.
7. From the ante mortem injuries on the body of Dile Ram as coming to
light from the medical evidence and the objective findings at the spot where
the body was found lying, it is quite clear that his death was homicidal. But,
the question remains regarding the culpability of the three appellants.
8. It may be stated at the outset that there is no ocular evidence of the
commission of the offence and the prosecution case is based entirely on
circumstantial evidence. There are four circumstances relied upon by the
prosecution and accepted by the trial court and the High Court to hold the
appellants guilty of the offence. These are as under:
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I. The deceased was last seen being chased by the appellants
yelling at him and shouting that they would not spare him
(paragraphs 20 and 21 of the High Court judgment).
II. Sunil Rai made an extra judicial confession before PW-10,
Chander Shekhar, President of the Rickshaw Pullers' Union telling
him that he along with Sher Bahadur and Ram Lal hit Dile Ram
with brickbats and stones at about 9:00pm in the night between
March 29 and 30, 2001, causing injuries to him that led to his
death (paragraphs 22, 23 and 24 of the High Court judgment).
III. The recovery of the blood-stained jacket (Ex. P8) of Sunil Rai,
appellant no.1 from under the seat of the rickshaw on the basis of
the disclosure statement (Ex. PU) made by him and that was seized
under seizure memo (Ex. PV) (paragraph 27 of the High Court
judgment).
IV. There was motive for the accused to beat and even kill Dile
Ram (paragraph 25 of the High Court judgment).
9. Let us now examine the evidences in support of each of the four
circumstances enumerated above.
10. On the issue of last seen, the prosecution examined Shailendra Kumar
Pandey as PW-9, Arun Kumar as PW-14 and Harish Kumar Bansal as PW-
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15. Though Jaspreet Singh had also been cited earlier as one of the witnesses
on this point, he was not examined before the Court.
11. PW-9, in course of his examination-in-chief stated that as he (Dile
Ram) was able to free himself from the hold of Sunil Rai:
"Dile Ram ran towards Jagat Theatre. Pauya and Sheru and
Ram Lal ran after Dile Ram."
In cross examination he stated as follows:
"Dile Ram went towards Neelam Theatre whereas Sheru and
Pauya went towards Jagat theatre."
In reply to a question by the court, he said:
"Chikna and Arun ran towards Jagat theatre. Pauya, Sheru and
Ram Lal ran after the deceased towards Neelam theatre."
(emphasis added)
12. It needs to be recalled here that the spot where Dile Ram was found
next morning lying in an injured condition, was near the local bus stand, on
the rear side of Neelam Cinema. It has also come on record that the place
where the quarrel took place between the accused and the Dile Ram and
from where Dile Ram ran away, allegedly being chased by them, is at a large
square and Neelam theatre and Jagat theatre are at its two opposite ends, at a
distance of about 1km from each other. Sub-Inspector, Ramesh Chand
Sharma, PW-17 in his deposition said:
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"... It is correct that if one comes from Jagat Theatre and goes
to Neelam Theatre he has to pass police post of Neelam
Chowki. Subway of Neelam is at a distance of 50 yards from
the police post. Some one always remains at police post of
Neelam. After 8/9p.m. only 1/2 persons remain in the police
post. It is wrong to say that 12 persons remain deputed at the
police post...."
13. Thus, the first statement of PW-9 suggests that the deceased and the
accused had gone in the direction completely opposite to where his body
was found 12 hours later. His second statement is that the deceased and the
accused had gone in opposite directions. His third statement, in answer to
the court question, is of course that the deceased and the accused had gone in
the direction of Neelam Cinema. It is also to be noted that in his first two
statements he only mentions the names of accused nos.1 and 2, that is, Sunil
Rai and Sher Bahadur but does not name Ram Lal whom he mentions only
in his third statement in reply to the question by the court.
14. The High Court has tried to explain the vacillating statements of PW-
9 by observing as follows:
"It appears that Shailender Kumar Pandey, PW9, inadvertently
made a statement that Dile Ram (deceased) ran towards Jagat
Cinema, instead of Neelam Cinema and the accused chased
him. Such a minor discrepancy, cannot be given any weight,
since a period of more than one year, and four months, from the
date of altercation, referred to above, had lapsed when
Shailender Kumar Pandey PW9 appeared in the court as a
witness."
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15. To our mind the vacillations in the deposition of PW-9 cannot be
brushed aside as "minor discrepancy" especially when it is to form the basis
for life sentences to three persons.
16. With all the inconsistencies, on the issue of last seen PW-9 happens to
be the best prosecution witness and the position becomes far worse when we
come to the other two witnesses. PW-14 was first examined on January 14,
2003. In course of his examination-in-chief, he stated as follows:
"... all of a sudden Diley Ram freed himself from the clutches
of Pauya and ran towards Neelam Cinema located in sector 17.
All the three accused i.e. Pauya alias Sunil Rai, Sheru and Ram
Lal also chased Diley Ram and as they were chasing they said
they will kill him...."
17. His cross examination did not take place on that date but it was done
later on April 8, 2003. In cross examination he stated as follows:
"... The deceased was under the influence of liquor on the day
of occurrence and some others had also taken liquor. It is
correct that Dilay Ram was insisting for more liquor whereas
the others were saying that they will not consume liquor. Dilay
Ram was demanding money for buying more liquor. Then they
all left that place. Dilay Ram left towards Neelam theatre
and the accused present in the court went towards Jagat
theatre...."
(emphasis added)
18. After his cross examination, the prosecution declared him `hostile'
and filed a petition seeking permission to cross examine him. The court
allowed the petition by order dated July 11, 2003 and granted permission to
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the prosecution to cross examine PW-14, whereupon his cross examination
by the prosecution took place on September 18, 2003. In this round he again
went back to his earlier statement and stated as follows:
"... Dilay Ram ran towards Neelam Theatre and all the accused
present in the court today ran after him...
... I say that deceased ran towards Neelam theatre and the
accused followed him. It is correct that earlier I had mentioned
in my statement regarding Jagat Theatre."
19. The only explanation for these contrary statements appears to be that
each time during the gap between his depositions in court he came under the
influence of the one or the other side and made the statements to please the
respective sides. To us, he is not a trustworthy witness and we are unable to
place any reliance on his testimony.
20. PW-15 did not at all support the prosecution case on the point of last
seen and he did not even identify the accused present in court. He was
declared hostile by the prosecution. There is one thing, however, quite
significant about PW-15. In cross examination by the defence, it was
suggested that he was a tout and a stock witness for the police. In reply to
the suggestion, he stated as under:
"... It is wrong to say that I am a police tout. It is correct that I
have been shown as a witness in case FIR.52 dt.12.8.2K under
NDPS Act. It is correct that I also appeared as a prosecution
witness registered under NDPS Act under FIR No.228
dt.15.5.2000. It is correct that both these cases were
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investigated by S.I. Ramesh Chand. It is correct that the spot
where the injured was running does not have any light point. I
have not seen any person hitting the injured."
21. Ramesh Chand Sharma, S.I. was the investigating officer of the case
before the investigation was taken over by DSP Arjun Singh Jaggi, PW-20.
Ramesh Chand Sharma was examined in the case as PW-17.
22. On a careful consideration of the evidences of PWs 9, 14 and 15, we
are unable to see how the accused can be said to be connected with the
commission of the offence on the basis of the quarrel that is said to have
taken place in the evening of March 29, 2001 between Sunil Rai and Dile
Ram. On the basis of the depositions of PWs 9 and 14 what can be said to
have been established is only that while they were all present near the GPO,
Sector 17, a quarrel and a scuffle had taken place between Sunil Rai and
Dile Ram whom he accused of stealing his money and clothes. But the
further story that when Dile Ram freed himself from the grip of Sunil Rai
and ran away from there to-wards Neelam Cinema he was pursued by all the
accused who were shouting that they would not spare him is completely
unacceptable on the basis of their evidences. The failure to establish that part
of the story leaves a wide gap in the prosecution case and weakens it
considerably.
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23. Coming now, to the extra judicial confession said to have been made
by Sunil Rai before Chander Shekhar, President, Rickshaw Pullers' Union,
Sunil Rai, in his statement under section 313 of the Code of Criminal
Procedure, of course, denied having made any confessional statement.
Chander Shekhar was examined as PW-10. In the examination-in-chief he
stated that on April 1, Sunil Kumar went to him at about 3 in the afternoon
and disclosed that he along with some others had committed a blunder by
killing Dile Singh in course of a fight. He added that Sunil disclosed to him
that Jaspreet Singh and Sher Bahadur had also joined him in assaulting the
deceased.
24. It is, thus, evident that in course of his examination-in-chief, he was
trying to implicate Jaspreet Singh (who was not an accused in the case) and
was trying to save Ram Lal who, according to the prosecution, was accused
no.3.
25. At that stage he was declared hostile and on being cross examined by
the prosecution, he said that Sunil had told him that he along with Sher
Bahadur and Ram Lal had caused injuries to Dile Ram by hitting him with
brickbats and stones.
26. In further cross examination by the defence, he admitted that Sunil
was not known to him personally but all rickshaw pullers were known to
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him as he was the President of one of the three Unions of Rickshaw Pullers
of Chandigarh. In cross examination by the defence, he once again replaced
Ram Lal by Jaspreet Singh and stated that Sunil Rai had disclosed to him
that he along with Sher Bahadur and Jaspreet Singh had thrown stones at the
deceased causing injuries to him leading to his death. Evidently, PW-10
does not have much regard for truthfulness.
27. Admittedly, the alleged confessional statement was oral and it was not
recorded in writing. Admittedly, Sunil Rai had no personal acquaintance,
much less any intimacy with PW-10. An extra judicial confessional
statement made orally before a person with whom the maker of the
confession has no intimate relationship is not a very strong piece of evidence
and in any event it can only be used for corroboration (See S. Arul Raja v.
State of Tamil Nadu, (2010) 8 SCC 233 paragraphs 48-56). In this case with
PW- 10 appearing particularly anxious to implicate Jaspreet Singh in place
of Ram Lal, it further loses any credibility. Further, in the confessional
statement allegedly made before PW-10 there is an inherent improbability.
The "disclosure" made by Sunil Rai before PW-10 did not indicate the place
where the assault on Dile Ram took place but it gave the time of the assault
as 9.00pm. In the evidence of PW-17 it has come that Neelam Police
Chowki is at a distance of 50 yards from the Neelam sub-way. The police
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post is naturally manned twenty four hours even though, according to PW-
17, after 8-9 pm only one or two persons remain on the post. The occurrence
took place on March 29. At the end of March, 9.00pm is not a very late hour
when an occurrence of this kind taking place near the local bus stand and the
parking place for rickshaws, behind a cinema theatre and at a distance of no
more than 50 yards should normally go completely unnoticed by any one,
including the policemen at the police post.
28. For the aforesaid reasons we find it impossible to rely upon the
evidence of PW-10 and, thus, goes the extra judicial oral confession by Sunil
Rai.
29. This leaves us with the remaining two circumstances, that is to say,
the recovery of the bloodstained jacket of Sunil Rai from under the seat of a
rickshaw and motive. According to the report of the Central Forensic
Science Laboratory (Ext. PA) the pair of pants, shirt, vest, and under-pants
taken off from the body of Dile Ram were stained with human blood of 'B'
group; the blood group of the sample of blood taken from the deceased was
also `B'. And the stains on the jacket recovered from under the seat of the
rickshaw were also of the same group of human blood. The report further
indicated that though there were stains of human blood on the piece of brick
and the sample of earth collected from the spot where the body of Dile Ram
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was found it was not possible to ascertain the blood group. The piece of
concrete and the stone piece had no blood stains.
30. No effort was made to take the blood sample of Sunil Rai and it is not
known what is his blood group. Moreover, the jacket was recovered from a
rickshaw standing out in the open where it was accessible to anyone. In the
aforesaid circumstances, the recovery of the bloodstained jacket, on its own
is a circumstance too fragile to bear the burden of the appellants' conviction
for murder.
31. Likewise, the fact that Sunil Rai had got his money and clothes stolen
and he believed that Dile Ram had committed the theft, normally, cannot be
said to make out sufficient motive for him to kill Dile Ram. In any event,
motive alone can hardly be a ground for conviction.
32. On the materials on record, there may be some suspicion against the
accused but as is often said suspicion, howsoever, strong cannot take the
place of proof. We, therefore, find and hold that the conviction of the
appellants is based on completely insufficient evidence and is wholly
unsustainable.
33. It is seen above that the quality of the prosecution evidence is too poor
to satisfactorily establish any of the first three circumstances for holding the
appellants guilty of the offence of murder. As none of the three
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circumstances were sufficiently proved, there is no question of taking them
as links forming an unbroken chain that would lead to the only possible
inference regarding the appellant's guilt. But before parting with the records
of the case, we must sadly observe that so far as appellant nos.2 and 3 are
concerned, it's a case of no evidence inasmuch as apart from the first the
remaining three circumstances are not relatable to them at all.
34. The second circumstance in the case as noted above was the extra
judicial confession made by Sunil Rai, appellant no.1. It is seen above that
PW-10, before whom the confession was allegedly made, tried his best to
shield Ram Lal and to implicate in his place Jaspreet Singh. Nonetheless, the
High Court deemed fit to use the extra judicial confessional statement made
orally by Sunil Rai as substantive evidence not only against him but against
appellant nos.2 and 3 as well. In our view, the High Court was completely
wrong in using the alleged confessional statement made by Sunil Rai against
appellant nos.2 and 3. For taking into consideration the confessional
statement of Sunil Rai against the other two appellants the High Court has
relied upon two decisions of this Court. One in Ammini v. State of Kerala
(1998) 2 SCC 301 and the other in Prakash Dhawal Khairnar v. State of
Maharashtra, (2002) 2 SCC 35. In our view, both the decisions have no
application to the facts of this case. In both cases the confessions were
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neither oral nor extra judicial. In both cases confessional statements were
made before a Magistrate and were reduced to writing. In Prakash Dhawal
Khairnar, the Judicial Magistrate, first class, before whom the maker of the
confession was produced not only gave him the due warning but also
allowed him 24 hours time to think over the matter. It was only after he was
produced the following day that the Magistrate recorded his statement under
section 164 of the Code of Criminal Procedure. In Prakash Dhawal
Khairnar, the confessional statement was not retracted either.
35. In Ammini, the facts were entirely different from the present. The
accused had entered into a conspiracy in pursuance of which several
unsuccessful attempts were earlier made before the victims were eventually
killed. In the trial for the crime the accused were charged separately under
section 120-B, apart from section 302 read with section 34 of the Penal
Code. One of the charges being under section 120-B, the confessional
statement by one accused was used against the others on the basis of section
10 of the Indian Evidence Act. In the present case there was no allegation of
any conspiracy and there was no charge under section 120-B of the Penal
Code.
36. In Prakash Dhawal Khairnar too, one of the charges against the two
accused being father and son was under section 120-B of the Penal Code.
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But the son, the maker of the confession was acquitted of the charge under
section 120-B of the Penal Code. In that circumstance, the question arose
whether the confessional statement of the son could be used against the other
co-accused, his father for maintaining his conviction under section 302 of
the Penal Code. This Court pointed out that the conviction of the father
under section 302 of the Penal Code was based on a number of
circumstantial evidences that were independently established and the
confessional statement of the son was not used as a substantive piece of
evidence. In paragraph 20 of the judgment, this Court observed as follows:
"20. In this case, the High Court has not relied upon the
confessional statement as a substantive piece of evidence to
convict Accused 1. It has been used for lending assurance to the
proved circumstances. The High Court held that the proved
circumstances would not involve Accused 2 for the offence
punishable under Section 302 IPC and the circumstantial
evidence does not establish that there was any common
intention or conspiracy between the father and the son to
commit the offence...."
37. It is, thus, clear that the extra judicial confession of Sunil Rai could
not be fastened upon the other two appellants for holding them guilty of
murder and the High Court was quite wrong in using the confessional
statement of Sunil Rai as a circumstance against the other two appellants.
38. Recovery of the bloodstained jacket of Sunil Rai, the third
circumstance obviously does not relate to appellant nos.2 and 3 in any
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manner. Equally, the theft of the money and clothes of Sunil Rai would be
no motive for the other two accused to assault Dile Ram, much less to kill
him.
39. Thus, seen for any angle the conviction of the appellants cannot be
sustained. The judgments and orders of the High Court and the trial court are
completely unsustainable. The two judgments are set aside. The appellants
are acquitted of the charges and are directed to be released forthwith unless
required in connection with any other case.
40. In the result the appeals are allowed.
.........................................J
(AFTAB ALAM)
.........................................J
(R.M. LODHA)
New Delhi,
July 4, 2011.
