Punjab-Haryana High Court
Vikas vs State Of Punjab on 19 March, 2012
Author: Alok Singh
Bench: Alok Singh
Crl. Appeal No.190-DB of 2010 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.190-DB of 2010 (O&M)
Date of Decision: 19.03.2012
Vikas
....Appellant
Versus
State of Punjab
....Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE ALOK SINGH
Present: - Mr. Balwinder Singh Sudan, Advocate, for
Dr. Puneet Kaur Sekhon, Advocate, for the appellant.
Ms. Gurveen H. Singh, Addl. A.G., Punjab.
1.Whether to be referred to the Reporters or not?
2.Whether the judgment should be reported in the Digest?
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ALOK SINGH, J.
1. By way of present appeal accused-appellant is assailing order of conviction and sentence passed by learned Sessions Judge, Gurdaspur, dated 1.2.2010 thereby finding the accused-appellant guilty for an offence punishable under Sections 302/34 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.
2. Prosecution story, inter alia, is that Senior Superintendent of Police, Gurdaspur, marked an enquiry to Superintendent of Police (Detective), Gurdaspur, on file No.714-R-SSP dated 10.6.2006, in respect of the death of Gagandeep son of Jail Masih, resident of Shahzada Nagar, Gurdaspur. Superintendent of Police (Detective), Gurdaspur, has submitted his enquiry report, dated 3.8.2006, whereupon Crl. Appeal No.190-DB of 2010 (O&M) -2- a case FIR No.54 dated 18.9.2006, under Sections 302/506/34 IPC was registered at Police Station Purana Shalla, District Gurdaspur. As per the enquiry report, on 21.5.2006 Gagandeep (deceased); Pawan Kumar alias Pappu son of William, resident of Purani Dana Mandi, Parwinder Singh Gill alias Laddi son of Rajesh Gill, resident of Geeta Bhawan Road; Pawan Kumar alias Julli son of Sain Dass, resident of Railway Colony, Gurdaspur and Vikas (accused-appellant) son of Ashok Kumar, resident of Geeta Bhawan Road, Gurdaspur, while sitting together in Sports Office, Gurdaspur, had consumed liquor. After taking liquor, Parwinder Gill alias Laddi, Vikas and Pawan Kumar alias Pappu had asked that let us go to Tibri Bridge Canal to take bath. Gagandeep refused to go. However, Parwinder Gill alias Laddi, Vikas and Pawan Kumar alias Pappu did not agree and all of three forcibly made Gagandeep to sit on the motorcycle and went to Tibri Bridge. Shammi and Julli also followed them. All of them reached Tibri Bridge where Parwinder Gill alias Laddi, Pawan Kumar alias Pappu and Vikas (accused-appellant) pushed Gagandeep into the Kasoor Branch. Gagandeep did not know how to swim. There was so much water in the canal and due to fast current of water Gagandeep has swept away and drowned.
3. To prove its case, the prosecution has examined Dr. Chetan Nanda as PW1, Bharat Kumar as PW2, Jail Masih as PW3, Shammi Kumar as PW4, Papinder Kalia as PW5, Constable Mohinder Pal as PW6, ASI Gurcharan Singh as PW7, Constable Sat Pal as PW8, Paramvir Singh Parmar, S.P.(D) as PW9, Inspector Gurjit Singh as PW10 and Surinder Pal as PW11.
Crl. Appeal No.190-DB of 2010 (O&M) -3-
4. During the trial Parwinder Singh Gill alias Laddi had expired, therefore, trial against him stood abated. Learned Sessions Judge has found appellant-accused guilty for an offence punishable under Sections 302/34 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.
5. Feeling aggrieved, appellant-accused has approached this Court by way of present appeal.
6. We have heard Mr. Balwinder Singh Sudan, learned counsel appearing for the appellant-accused and Ms. Gurveen H. Sigh, learned Additional Advocate General, Punjab, and have perused the record.
7. Incident is said to be of 21.5.2006 while on the application dated 10.6.2006 of the father of the deceased, Jail Masih, who was serving as ASI in the Punjab Police, SSP, Gurdaspur, has marked an enquiry to the SP(Detective) and pursuant to the enquiry report an FIR was got registered on 18.9.2006.
8. Bharat Kumar PW2, while appearing in the witness box, has stated that he was an employee of Irrigation Department and posted at Tibri Bridge; about one year back on Sunday at about 4.00 p.m. someone came and reported that one boy was drowning in the canal; on this he along with 4/5 persons reached to the spot; accused, present in the Court, were present on the spot; he remained on the bank of the canal while two persons came down in the canal to take out the body of Gagandeep; accused, present in the Court, did not help to remove the boy from the canal; Gagandeep was brought to the Civil Hospital on his (Bharat Kumar PW2) motorcycle; Parwinder Gill co-accused, present in Crl. Appeal No.190-DB of 2010 (O&M) -4- the Court, was on his motorcycle to help Gagandeep to shift to Civil Hospital, where Gagandeep was reported to be dead. Bharat Kumar disclosed to the relations of the deceased that accused, present in the Court, were standing near the place where Gagandeep was drowned in the canal; accused were in underwear, therefore, according to him they might be taking bath in the canal. In cross-examination, Bharat Kumar has stated that Parwinder Gill remained present in the hospital till arrival of the mother of the deceased.
9. PW4 Shammi Kumar had stated that after consuming liquor, Parwinder Singh Gill alias Laddi co-accused asked them to take bath; deceased expressed his disinclination to go there, however, Laddi, Pappu and Vikas (accused-appellant) made the deceased to board a motorcycle alongwith them and took him away. When Shammi Kumar was about to reach to the canal Laddi came there and told them to run away otherwise they would also be killed as Gagandeep was killed; on this he got frightened; took a three-wheeler and went to his in-laws house at village Massani and returned from there after two days and narrated the entire sequence of events to father of the deceased, Jail Masih. During the cross-examination he has admitted that on the bank of Tibri Canal there was a police post.
10. PW3 Jail Masih, ASI, father of the deceased, had stated on oath that on 21.5.2006 at about 7/8 p.m. Surinder Kaur alias Shindo, his neighbour, told him on telephone that deceased was drowned in a canal by some boys; he reached to the hospital. On 23.5.2006 PW Shammi had revealed the circumstances leading to the death of Gagandeep deceased. PW3 Jail Masih has further stated that Shammi also disclosed Crl. Appeal No.190-DB of 2010 (O&M) -5- to him that deceased used to tell him that he had an altercation with Laddi about a year back and that said Laddi was extending threats to him.
11. It is important to note that in the present case there is no eyewitness. Prosecution is banking upon the so-called circumstantial evidence. None has seen either of the accused pushing the deceased into the canal. Rather it is clear from the statement of PW2 Bharat Kumar that when he reached on the spot, all the accused in underwear were present at the canal. According to PW2, one of the co-accused, Parwinder Gill, took Gagandeep on motorcycle to the hospital and he remained in the hospital till mother of the deceased arrived in the hospital. In our considered view conduct of co-accused would suggest that they were having no guilty feeling about the drowning of Gagandeep in the canal otherwise they all would have run and one of them would not have brought Gagandeep to the hospital. Had there been any threat from the accused to the deceased, as suggested by Jail Masih PW3, father of the deceased, he would have narrated the same in his statement under Section 161 Cr.P.C. or in his complaint to the police, which he did not do. Therefore, conclusion can be drawn that he has made up new story while appearing in the witness box.
12. Hon'ble the Supreme Court in the case of Musheer Khan alias Badshah Khan and another vs. State of Madhya Pradesh, (2010) 2 SCC 748, in para Nos.39 to 46, has observed as under:
"39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While Crl. Appeal No.190-DB of 2010 (O&M) -6- appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.
40. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical formula"
since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.
41. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. (see Raghav Prapanna Tripathi v. State of U.P., AIR 1963 SC 74 : (1963) 1 Cri LJ 70).
42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person that the accused. (see State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 :
1992 SCC (Cri) 642 : 1992 Cri LJ 3693).
43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor, 21 CWN 1152 : 43 IC 241 that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.
44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt.
45. When a murder charge is to be proved solely on the circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy v. King Emperor, 11 CWN 1085, it was held that the fact that an accused person was found with a gun in his hand Crl. Appeal No.190-DB of 2010 (O&M) -7- immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Evidence Act may have in civil or in less serious criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.
46. The same principles have been followed by the Constitution Bench of this Court in Govindra v. State of Mysore, AIR 1960 SC 29 : 1960 Cri LJ 137 where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 : 1953 Cri LJ 129. The ratio in Govind quoted in AIR para 5, p. 30 of the Report in Govinda Reddy are: -
"5. ...... '10. ...... in cases where the evidence is of a circumstantial nature, the circumstances [which lead to the conclusion of guilt should be in the first instance] fully establishes, and all the facts so establishes should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be [shown] that which all human probability the act must have been [committed] by the accused."
13. As per the dictum of Hon'ble the Supreme Court, Section 106 of the Evidence Act should not be pressed in service in a serious offence of murder and can be pressed in service ordinarily in civil cases as well as in the petty criminal cases. Chain of circumstantial evidence should be complete leaving no doubt about the guilt of the accused. Having perused the entire material, we are satisfied that circumstantial evidence is not complete. There is no satisfactory explanation about the undue Crl. Appeal No.190-DB of 2010 (O&M) -8- delay in the FIR. Incident is said to be of 21.5.2006 while alleged application was said to be moved to the SSP on 10.6.2006 and FIR was registered on 18.9.2006, which creates doubt about the prosecution story. We are of the view that prosecution has failed to prove the guilt of the accused beyond doubt and conviction on the basis of surmises and conjectures cannot be sustained in the eyes of law.
14. As a sequel to the above discussion, the appeal is allowed. Impugned judgment of conviction and order of sentence passed by learned Sessions Judge, Gurdaspur, is set aside. Accused-appellant is acquitted from the charges under Sections 302/34 IPC in case FIR No.54, dated 18.9.2006, Police Station Purana Shalla, District Gurdaspur. Accused-appellant be released forthwith unless his custody is required in any other case.
(M.M. Kumar) Judge (Alok Singh) Judge March 19, 2012 R.S.