Hon'ble Mr. Justice K.M. Joseph
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Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1697 OF 2009
SUKHPAL SINGH ...APPELLANT(S)
VERSUS
STATE OF PUNJAB ...RESPONDENT(S)
JUDGMENT
K.M. JOSEPH, J.
1. This appeal by special leave is directed
against the judgment of the High Court
dismissing the appeal filed by the appellant
against his conviction under Section 302 of the
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Indian Penal code (hereinafter referred to as
the “IPC”) and sentencing to rigorous
imprisonment for life.
2. On 27/06/1993 upon discovery of an
unidentified body near a canal and the case
being registered and upon investigation being
conducted the appellant along with another came
to be charge sheeted and charged with the
commission of offences under Section 302 read
with Section 34 of the IPC. They were also
charged with the offence under Section 201 of
the IPC. Before the trial Court the prosecution
examined PW1 to PW17. The appellant examined
DW1 and DW2. The trial Court convicted the
appellant while it acquitted the co-accused. As
already noticed the High Court has affirmed the
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conviction and sentence of the accusedappellant.
3. We heard Ms. Aishwarya Bhati, learned
Amicus Curiae and also learned counsel for the
respondent-State.
4. Learned Amicus Curiae contended before us
that the case is based only on circumstantial
evidence. She pointed out that there are three
circumstances which were alleged against the
appellant. Firstly, it is contended that the
prosecution laid store by an alleged extra
judicial confession made by the appellant to PW
4 but she immediately pointed out that the said
extra judicial confession has not been accepted
either by the trial court or by the High Court.
Secondly, it is pointed out that the courts have
relied upon the theory of last seen. The theory
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of last seen is sought to be proved through the
evidence of PW7, PW8 and PW9. Thirdly, it is
pointed out that the prosecution has sought to
draw support from recovery of .38 caliber gun
apart from cartridges. She would submit that no
reliance can be placed upon the same. Lastly,
she also contended that there is absolutely no
motive for the appellant to commit the murder of
the deceased. In a case of circumstantial
evidence, motive assumes great significance.
Absence of evidence of any motive with the
appellant to do away with the deceased, is fatal
to the prosecution case, runs the argument.
5. Per contra, learned counsel for the State
would submit that the circumstances formed a
complete chain and unerringly point to the guilt
of the appellant. It is further pointed out
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that the van belonging to the deceased in which
the accused were also seen last by the witnesses
for the prosecution was recovered at the
instance of the appellant. This is besides the
forensic evidence available which would also
establish that this is a case of the murder
committed by none other than the appellant as
the forensic report would show that the bullet
which was recovered from the body of the
deceased was fired from the gun recovered from
the appellant. Recovery was of the gun and also
empty cartridges besides live cartridges. An
attempt is made also to establish that there was
a fight between the deceased and the appellant
going by the injuries noted in the post-mortem
and this pointed to motive.
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6. We would exclude the circumstance namely,
the extra judicial confession which has not been
given credence to by the courts below. We will
thereafter examine firstly whether the
prosecution has been able to establish the last
seen theory. The case of last seen theory has
been sought to be proved through the testimony
of PW7, PW8 and PW9.
7. P.W.7 is the brother in law of the
deceased. He has deposed that the deceased was
having a taxi and on 26.6.1993 he along with the
deceased was present at the taxi stand. Then
both the accused came there. They asked the
deceased to take them in his taxi and he left
with them. No doubt, in cross examination he
does say that 4 or 5 taxis in addition to their
two taxis were present at the taxi stand. He is
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not able to give the names of other taxi drivers
or the registered numbers of their vehicles. He
had a separate taxi. There is nothing vital in
his cross examination which could be said to
demolish his examination-in-chief.
8. P.W.8 would state that 2½ years or 3
years ago when he reached village Thandewala, he
found on the canal bank the van of the deceased
where both the accused were sitting in the van.
He was to go to Amritsar so he stopped the van.
He stated that the registration number of the
van was 3332. He stated he knew the deceased
and both the accused. He further stated that
the deceased was not present in the van. He
asked the accused as to where the deceased was
as he wanted to hire his taxi, thereupon the
accused told him that they had some secret work
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so they did not bring the deceased with them.
He would say after 6 or 7 days he learnt that
dead body of the deceased was recovered. He
made a statement to the police. In cross
examination he also says that he did not say
before the police that he stopped the van as he
was to engage the van to go for holy dip at
Amritsar nor did he state to the police that he
was to hire the van of the deceased. No doubt
there may be minor contradictions but we think
that his evidence has inspired the confidence of
two courts. PW9 is an employee of the cooperative Bank as a gunman. He would say that
on 26/06/1993 he came on a scooter and when he
reached bus adda of village Jabelwali it started
raining, he stopped there. The deceased came
there in his van from Muktsar side. Both the
accused were sitting in the van. On seeing him
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deceased brought the van near him as he was his
brother-in-law. He asked him to accompany but
PW9 told him that he has scooter. However, it
is deposed that the appellant asked the deceased
to hurry up as he was getting late. Then the
van left towards Kakapura. After the rain
stopped, PW9 went in the same direction and he
saw the van of the deceased turning downstream
of the canal water of Rajasthan Canal. In cross
examination he would say that the canal was at a
distance of half kilometer from Jabelwali bus
stand. Bus stand Jabelwali is at a distance of
8 or 10 kilometers from Muktsar. He would say
that his duty hours in the Bank is from 10.00
a.m. to 5.00 p.m. as gunman. The van of the
deceased he would say came to him at the bus
stand at about 9 a.m.or 10 a.m.. He was at a
distance of 10 to 15 killas from Jabelwali bus
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stand when it started raining. He stood at the
bus stand for about 15-20 minutes. He left the
bus stand on scooter 5 to 7 minutes after the
van left towards Kakapura. He would say that he
did not know the relation except the appellant’s
wife. It would be noticed that there is no
suggestion in the cross examination however that
he does not know the appellant or that he has
never seen him before.
9. The aforesaid evidence, in our opinion,
which has been believed by the trial court as
well as by the High Court, can be relied upon by
us to conclude that the prosecution has
established that the appellant was indeed last
seen with the deceased before his death and
recovery of the body. The appellant admittedly
was working as a police officer. The next
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circumstance which has been relied upon by the
courts is the recovery of his service revolver –
the gun along with empty cartridges and live
cartridges. The evidence of PW15- officer would
show that on 09.7.1993, the appellant was
arrested along with co-accused. The Maruti van
belonging to the deceased was also produced and
the same was taken into possession in the
presence of Gurdev Singh and Head Constable
Surinder Singh. He has stated that the
appellant was interrogated. He disclosed that
he concealed .38 bore revolver along with 3 live
cartridges and 2 empty cartridges and
Rs.20,000/- cash in an iron box lying in his
house and same was hidden. The statement was
attested by Gurdev Singh (Sarpanch) and Surinder
Singh. A .38 bore revolver, 2 empty cartridges
and 3 live cartridges were recovered as per the
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statement from an iron box from the store of his
house. The key was taken out by him from the
almirah by the appellant. The revolver and
cartridges were sealed after making into
parcels. They were taken into possession. A
seal was prepared which is handed over after use
to Gurdev Singh. It is also established from
the statement of PW15, the investigating officer
that after the post-mortem, a bullet was
produced before him. No doubt, the bullet was
recovered at the time of post-mortem on
26.7.1993. The revolver was recovered on
11.7.1993. In cross examination P.W.15 has
spoken about sending the revolver and bullet for
forensic examination. The report of the
Forensic Science Laboratory is to the effect
that the bullet which was marked as B1 has been
fired from .38 bore revolver No.673. This
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undoubtedly would establish that the bullet
which resulted in the death of the deceased came
from the revolver which was issued to the
appellant.
10. Learned counsel for the appellant in the
light of this clearly incriminating circumstance
drew our attention to the following statement
given by the appellant in his statement under
Section 313 Cr.P.C.
“I am innocent. I have been falsely
implicated. I was suspended by S.S.P.
Faridkot on 3.5.1993 and was sent to
Police Lines, Faridkot, where I remained
present in the months of May and June
1993 throughout. In May I deposited my
revolver and ammunition, because of my
suspension, in Police Lines, Faridkot.
On 28.6.1993 vide report No.3 in the
Daily Diary I was detailed on duty to go
to the office of D.S.P. Moga, regarding
departmental enquiry. When I returned
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in the evening, police of P.S. Sadar
Muktsar took me from the Police Lines.
They also collected my revolver and
ammunition from the officials of the
Police Lines, Faridkot. I was detained
for some days in illegal custody and my
formal arrest was shown thereafter and
recovery of revolver and ammunition was
foisted against me. Revolver after
firing in the police station was sent to
Forensic Science Laboratory. Bullet was
also foisted against me.”
11. Apparently the version that is sought to
be set up is that the appellant was under
suspension, and therefore the appellant had
surrendered his revolver and therefore the case
of the recovery of the gun and that the fatal
shot was fired from the gun should not be
believed.
12. There appears to be no evidence to show
however that the appellant was actually placed
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under suspension as is sought to be claimed by
him in the questioning under Section 313. The
appellant has also not been able to draw our
attention to any evidence adduced by him to
establish that he was in fact placed under
suspension so as to prove that he had
surrendered the gun at the police station prior
to the date of the incident. It may be true
that the investigating officer when questioned
has stated that he does not know whether the
officer was suspended. However, this was the
state of the prosecution evidence. It was
thereupon incumbent upon the appellant to
establish the case through evidence which would
certainly have been available had indeed been
placed under suspension. In the absence of
material to establish the case of suspension we
are not inclined to disturb the concurrent
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findings by the court which is based on evidence
which establishes that there was a recovery of
the gun along with 2 empty cartridges and 3 live
cartridges on the statement given by the
appellant. Furthermore, as already noticed, the
evidence establishes that the bullet found in
the body of the deceased was fired from the gun
which is allotted to the appellant. That apart
we have already found that there is ample
evidence to show that the appellant was last
seen with the deceased, again, a fact which is
established on the basis of testimony of
witnesses who have been found to be creditworthy
by two courts. In an appeal maintained under
leave under Section 136 this Court would not
ordinarily go into the credibility of the
witnesses whose testimony has inspired the
confidence of the courts.
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13. The evidence of three witnesses relating to
last seen has been relied upon by two courts. It
may be true that there may be certain minor
contradictions. The credibility of witnesses is
ordinarily not re-visited by this Court in an
appeal by special leave. That apart the
circumstance as to the recovery and what is most
important the report of the forensic laboratory
is clinching. The report of the forensic
laboratory reads as follows:
“One point .38 inch jacketed bullet
marked B/1 contained in parcel ‘A’ has
been fired from .38 inch revolver No.A673.”
14. We are not inclined to place any reliance
on appellant’s version that the gun was actually
surrendered by him and making use of the gun, a
shot was fired and he has been implicated
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particularly as he has not proved that he has
been placed under suspension. Furthermore, in
fact, P.W.15 has denied the allegation that the
bullet was sent after firing. The only
inevitable conclusion we can reach is that the
gun was recovered from him and the bullet which
has been found to have caused the fatal injury
to the deceased and which was recovered from the
body of the deceased has been fired from the
appellant’s gun.
15. The last submission which we are called
upon to deal with is that there is no motive
established against the appellant for committing
murder. It is undoubtedly true that the
question of motive may assume significance in a
prosecution case based on circumstantial
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evidence. But the question is whether in a case
of circumstantial evidence inability on the part
of the prosecution to establish a motive is
fatal to the prosecution case. We would think
that while it is true that if the prosecution
establishes a motive for the accused to commit a
crime it will undoubtedly strengthen the
prosecution version based on circumstantial
evidence, but that is far cry from saying that
the absence of a motive for the commission of
the crime by the accused will irrespective of
other material available before the court by way
of circumstantial evidence be fatal to the
prosecution. In such circumstances, on account
of the circumstances which stand established by
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evidence as discussed above, we find no merit in
the appeal and same shall stand dismissed.
………………………………………….J.
(A.M. Khanwilkar)
………………………………………………J.
(K.M. Joseph)
New Delhi;
February 12, 2019
