Case Summary
| Citation | Bodhraj v. State of J. & K.(2002) 8 SCC 45 |
| Keywords | sec 27 of IEA , discovery of facts, circumstantial evidence |
| Facts | Deceased , Swaran Singh, was running a finance company and there are two accused in his company, Ashok Kumar and Ravinder Kumar, took the loan and suggested deceased to enter into financial arrangement. All the 3 parties went to look at a site for flour mill purpose and some people came later on and attecked on the deceased. Ashok issued a cheque in bank and Ravinder had revolver of deceased as his license was seized. 2 of them made statement to prosecution witness that they killed the party as he was demanding money from them. These statement were made before police, in recovering weapons, the other accused has been identified by prosecution witness. The accused Bodhraj was identified by prosecution witness. Trial court acquitted Bodhraj but convicted by High court. |
| Issues | Whether the discovery of weapons was found by information provided by accused can be treated as evidence t prove his guilt. |
| Contentions | |
| Law Points | Court refer Padala Veera vs State of AP that this case is based upon circumstantial evidence and certain test should be followed: circumstances from which the facts derived and inferences drawn should be firmly established. Circumstance should prove the guilt of accused not his innocence. Chain of evidence should be formed to prove the guilt. Court held that only confession was there and weapons founded which are not sufficient to prove him guilty. Court observed that establishing the facts that deceased was last seen with accused would be difficult , and in cases where there is large number of people who may be in between accused and the deceased , it may be even more difficult. In absence of any further piece of evidence, the court held that accused was last seen with deceased and it was difficult to prove conviction. Court held that to admit certain evidence the circumstances should be basis for the conviction of accused and proving circumstances are in consistent with facts lies upon prosecution and has to prove chain is complete (sharad birdhichand vs state of maharastra). |
| Judgement | Court held that last seen doctrine not always be concluded that accused is guilty of the offence. information provided by accused in police custody regarding place he has concealed the articles cannot be regarded as information under section 27. Court found him not guilty. |
| Ratio Decidendi & Case Authority |
ARIJIT PASAYAT, J. – These four appeals relate to a Division Bench judgment of the
Jammu and Kashmir High Court dated 31-7-2000. While Criminal Appeals Nos. 921 of 2000,
791 and 792 of 2001 have been filed by the accused, Criminal Appeal No. 837 of 2001 has
been filed by the State.
2. Ravinder Kumar (Accused 1), Ashok Kumar (Accused 2) and Rajesh Kumar (Accused
6) were convicted by the trial court while Bodhraj (Accused 3), Bhupinder (Accused 4),
Subash Kumar (Accused 5) and Rakesh Kumar (Accused 7) were acquitted by the trial court,
but the High Court set aside their acquittal and convicted them. Rohit Kumar (Accused 8) and
Kewal Krishan (Accused 9) were acquitted by the trial court and their acquittal has been
upheld by the High Court. Another accused, i.e., Kishore Kumar was acquitted by the trial
court. He having died during the pendency of the appeal before the High Court, the appeal
against him was held to have abated. Accused Rajesh Kumar has not preferred any appeal
against the conviction as upheld by the High Court.
3. Accused 1 and Accused 2 having been convicted under Section 302 read with Section
120-B of the Indian Penal Code, 1860 (in short “IPC”) were sentenced to suffer imprisonment
for life and pay a fine of Rs 20,000 each. It was stipulated that for default in paying the fine,
each had to suffer another year of imprisonment. Similar was the case with Accused 6. So far
as Accused 3, 4, 5 and 7 are concerned, the High Court convicted and sentenced them on a
par with the other three accused.
4. The factual scenario as highlighted by the prosecution is as follows:
Swaran Singh @ Pappi (hereinafter referred to as “the deceased”) was running a finance
company. Accused 2 (Ashok Kumar) and Accused 1 (Ravinder Kumar) had taken huge
amounts as loan from the deceased. They suggested to the deceased to enter into a financial
arrangement. On the fateful day, i.e., 3-8-1994, the deceased went to his business premises.
After about 10 minutes of his arrival, accused Ravinder Kumar also reached his office. As the
deceased had brought some money from his house which was to be deposited in a bank,
Darshan Singh (PW 15), an employee was asked to make the deposit. Since no vehicle was
available, Ravinder Kumar gave the key of his car to Darshan Singh. The registration number
of the car is CH 01 5408. Darshan Singh left the office around 11.30 a.m. and returned around
1.30 p.m. On his return, Darshan found the deceased in the company of accused Ravinder
Kumar and Ashok Kumar. He returned the key of the car to Ravinder Kumar. After about
10/15 minutes, the deceased and accused Ashok Kumar left the office. At the time of his
departure, the deceased told Darshan to take the food which was to come from his house, as
they were going out to have food. Accused Ashok Kumar and the deceased went to Hotel
Asia for taking their food. Later on, accused Ravinder Kumar joined them. All the three after
taking food went to the business premises of Gian Singh (PW 1) who was a property dealer
and broker. He was informed that they were interested in purchasing some land for setting up
a flour mill. Ravinder and Ashok Kumar persuaded the deceased to accompany them for the
selection of the site. Along with Gian Singh (PW 1), another property dealer was also picked
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up. This was done as PW 1 wanted to go to the site in question along with Pratap Singh (PW
2) who was his business partner. All of them went to Village Dhiansar where the land was
situated. They went by Car No. JK 02B 566. As accused Ravinder Kumar appeared to be in
extreme haste, he told that the site has been approved and PWs 1 and 2 were told that they
would settle the matter at their business premises. When they were returning, the deceased
was attacked by some persons (later on identified as Accused 3 to 10). Accused 1 and 2
remained silent spectators and even did not pay any heed to the pitiful plea of the deceased to
bring the car so that he could escape the attacks. On the contrary, they left the scene of
occurrence leaving behind the deceased and PWs 1 and 2. They did not report the matter to
the police and even though they claimed to be friends of the deceased, did not even inform the
family members of the deceased. They owed huge amounts and issued cheques for which they
had made no provision. Ashok Kumar made use of the cheque book of his wife and issued a
cheque in respect of her bank account, though, the same was not operated for quite some time.
Accused Rajesh Kumar’s presence was established as later on, a licensed revolver belonging
to accused Ravinder Kumar was recovered at the instance of Ravinder Kumar. The licence of
the revolver was seized from the house of Ravinder Kumar and the father of the said accused
produced the same before the police in the presence of witnesses. Pistol of the deceased was
also recovered at his instance. The licence in respect of the pistol was seized on a personal
search of the deceased at the spot of occurrence. One Hari Kumar (PW 18) stated that accused
Ravinder Kumar and Ashok Kumar made a statement before him that they had got the
deceased killed because he was demanding money from them. From the fact that the land was
to be selected was only known to accused Ravinder Kumar and Ashok Kumar, an inference
was drawn that it was these two accused who had hired the assailants and planted them well
in advance for the ultimate elimination of the deceased. The fact that accused Ravinder
Kumar left the office of the deceased earlier and joined them at the hotel was considered
significant, as the intervening period was utilized by him to inform the assailants as to where
they would be taking the deceased for the assaults being carried out. Accused Rajesh Kumar
and Subash Kumar had also suffered bullet injury which was on account of the firing done by
the deceased while he was trying to save his life.
5. Recoveries of various weapons used by the assailants were made pursuant to the
disclosures made by the accused Bodhraj, Bhupinder, Subash Kumar, Rajesh Kumar and
Rakesh Kumar. Recoveries were witnessed by several witnesses. Bodhraj was identified by
Jhuggar Singh (PW 6) and Santokh Singh (PW 7). Bhupinder Singh was identified by Hari
Kumar (PW 18) and Gurmit Singh. Similar was the case with accused Subash Kumar. Rajesh
Kumar was identified by Ranjit Sharma (PW 23) and Hari Kumar (PW 18). Accused Rakesh
Kumar was identified by Ranjit Sharma (PW 23) and Gurmit Singh, who was not examined in
court. Accused Bodhraj, Bhupinder, Rakesh Kumar, Rohit and Kewal Krishan were identified
by Nainu Singh (PW 9) while Subash Kumar and Rajesh Kumar were identified by Santokh
Singh (PW 7) and Surjit Singh (PW 8). The identification was done on two dates i.e. 11-8-
1994 and 16-8-1994. Different eyewitnesses claimed to have seen the occurrence either in full
or partially. PWs 1, 2, 7, 8 and 9 were really the crucial witnesses. Santokh Singh (PW 7) was
disbelieved by the trial court as well as by the High Court.
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6. In order to establish the plea that conspiracy was hatched, reliance was placed on the
plea of Kapur Chand who was not examined in court. Several other circumstances were
highlighted by the prosecution, to establish the plea of conspiracy. It was submitted that
nobody knew except PW 2 where the land was. If he was the person who had hired the
assailants, they (meaning PW 1 and deceased) would not have gone empty-handed. But,
knowing particularly well that the deceased was always armed, accused Ravinder purchased a
car which was used as a getaway car but never transferred it to his name. It was, however,
conceded by the learned Advocate-General appearing before the trial court that there was no
direct evidence of conspiracy. The police seems to have proceeded to reach the spot on
getting some reliable information.
7. In order to attach vulnerability to the judgment of the High Court, several points were
urged by the learned counsel for the accused persons. It was pointed out that there was no
evidence of any conspiracy. The only witness Kapur Chand who is alleged to have stated
before the police about the conspiracy was not examined. Even the investigating officer has
admitted that there was no direct evidence of conspiracy. There was no evidence collected
against the accused persons to link them with the crime till 11-8-1994 when suddenly
materials have been supposed to come like a floodgate. Initiation of action by the police is
also shrouded in mystery. It has not been disclosed in either the trial court or the High Court
as to how the police received information about the killing and arrived at the spot. Though it
was claimed at some point of time that a telephone call was supposedly made, but the FIR
was registered on the basis of reliable sources. There are no independent witnesses. It is
surprising as the alleged killing took place in the evening time at a highly populated place.
The so-called identification of the witnesses is highly improbable. Additionally, having
discarded the evidence of PW 7 the courts erred in believing the evidence of PWs 8 and 9
who stand on the same footing. The presence of these witnesses is highly doubtful. Their
behaviour was unnatural and there is no corroborative evidence. They are persons with
criminal records. Since their presence is doubtful, identification, if any, done by them
becomes ipso facto doubtful. The recoveries purported to have been done pursuant to the
disclosure made by the accused persons is highly improbable and requisite safeguards have
not been adopted while making alleged recoveries. The case against four of the accused
persons who were acquitted by the trial court rests on circumstantial evidence. The approach
to be adopted by the court while dealing with circumstantial evidence was kept in view by the
trial court. Unfortunately, the High Court did not do so. It was further submitted that there
was no complete chain of circumstances established which ruled out even any remote
possibility of anybody else than the accused persons being the authors of the crime. The
examination of the so-called eyewitnesses PWs 1 and 2 was belated and, therefore, should not
have been accepted. The evidence of PWs vis-à-vis accused persons is so improbable that no
credence should be put on it. The High Court should not have disturbed the findings of
innocence of the four accused persons without any plausible reasoning.
9. Before analysing factual aspects it may be stated that for a crime to be proved it is not
necessary that the crime must be seen to have been committed and must, in all circumstances
be proved by direct ocular evidence by examining before the court those persons who had
seen its commission. The offence can be proved by circumstantial evidence also. The
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principal fact or factum probandum may be proved indirectly by means of certain inferences
drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial
evidence is not direct to the point in issue but consists of evidence of various other facts
which are so closely associated with the fact in issue that taken together they form a chain of
circumstances from which the existence of the principal fact can be legally inferred or
presumed.
10. It has been consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the innocence of the accused or the
guilt of any other person.
The circumstances from which an inference as to the guilt of the accused is drawn have
to be proved beyond reasonable doubt and have to be shown to be closely connected with the
principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of
Punjab [AIR 1954 SC 621], it was laid down that where the case depends upon the
conclusion drawn from circumstances the cumulative effect of the circumstances must be
such as to negative the innocence of the accused and bring home the offences beyond any
reasonable doubt.
12. In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 79], it was laid down that
when a case rests upon circumstantial evidence, such evidence must satisfy the following
tests:
“10. (1) the circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing
towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that
there is no escape from the conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete
and incapable of explanation of any other hypothesis than that of guilt of the accused
and such evidence should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence.”
16. In Hanumant Govind Nargundkar v. State of M.P. [(1992) 2 SCC 86], it was
observed thus:
“It is well to remember that in cases where the evidence is of a circumstantial
nature, the circumstances from which the conclusion of guilt is to be drawn should be
in the first instance be fully established, and all the facts so established 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
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such as to show that within all human probability the act must have been done by the
accused.”
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of
Maharashtra [AIR 1984 SC 1622]. Therein, while dealing with circumstantial evidence, it
has been held that the onus was on the prosecution to prove that the chain is complete and the
infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The
conditions precedent in the words of this Court, before conviction could be based on
circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should
be fully established. The circumstances concerned must or should and not may be
established;
(2) the facts so established should be consistent only with the hypothesis of the
guilt of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved;
and
(5) there must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and must
show that in all human probability the act must have been done by the accused.
18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of
information given by the accused while in custody. The question is whether the evidence
relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian
Evidence Act, 1872 (in short “the Evidence Act”) is by way of proviso to Sections 25 to 26
and a statement even by way of confession made in police custody which distinctly relates to
the fact discovered is admissible in evidence against the accused. The words “so much of such
information” as relates distinctly to the fact thereby discovered, are very important and the
whole force of the section concentrates on them. Clearly the extent of the information
admissible must depend on the exact nature of the fact discovered to which such information
is required to relate. The ban as imposed by the preceding sections was presumably inspired
by the fear of the legislature that a person under police influence might be induced to confess
by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the
confession of information relating to an object subsequently produced, it seems reasonable to
suppose that the persuasive powers of the police will prove equal to the occasion, and that in
practice the ban will lose its effect. The object of the provision, i.e., Section 27 was to provide
for the admission of evidence which but for the existence of the section could not in
consequence of the preceding sections, be admitted in evidence. It would appear that under
Section 27 as it stands in order to render the evidence leading to discovery of any fact
admissible, the information must come from any accused in custody of the police. The
requirement of police custody is productive of extremely anomalous results and may lead to
the exclusion of much valuable evidence in cases where a person, who is subsequently taken
into custody and becomes an accused, after committing a crime meets a police officer or
voluntarily goes to him or to the police station and states the circumstances of the crime
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which lead to the discovery of the dead body, weapon or any other material fact, in
consequence of the information thus received from him. This information which is otherwise
admissible becomes inadmissible under Section 27 if the information did not come from a
person in the custody of a police officer or did come from a person not in the custody of a
police officer. The statement which is admissible under Section 27 is the one which is the
information leading to discovery. Thus, what is admissible being the information, the same
has to be proved and not the opinion formed on it by the police officer. In other words, the
exact information given by the accused while in custody which led to recovery of the articles
has to be proved. It is, therefore, necessary for the benefit of both the accused and the
prosecution that information given should be recorded and proved and if not so recorded, the
exact information must be adduced through evidence. The basic idea embedded in Section 27
of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered as a search made on the strength of any
information obtained from a prisoner, such a discovery is a guarantee that the information
supplied by the prisoner is true. The information might be confessional or non-inculpatory in
nature but if it results in discovery of a fact, it becomes a reliable information. It is now well
settled that recovery of an object is not discovery of fact envisaged in the section. Decision of
the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67], is the most-quoted
authority for supporting the interpretation that the “fact discovered” envisaged in the section
embraces the place from which the object was produced, the knowledge of the accused as to
it, but the information given must relate distinctly to that effect. No doubt, the information
permitted to be admitted in evidence is confined to that portion of the information which
“distinctly relates to the fact thereby discovered”. But the information to get admissibility
need not be so truncated as to make it insensible or incomprehensible. The extent of
information admitted should be consistent with understandability. Mere statement that the
accused led the police and the witnesses to the place where he had concealed the articles is
not indicative of the information given.
19. Coming to the evidence brought on record to substantiate the accusations, it is at least
clear that Accused 1 and 2 left in the company of the deceased. Some evidence has also been
brought to establish the motive i.e. the indebtedness of the accused to the deceased. In
addition to this is the evidence of PWs 1 and 2. So far as Accused 2 is concerned, he almost
stands on the same footing as Accused 1. Additionally, Hari Kumar (PW 18) has stated that
Accused 2 came to his shop and took sweets and left in Car No. JK 02B 566 belonging to
Accused 1. He has also stated about the return of Accused 2 to the shop and a demand for a
scooter. This witness has also stated to have seen Car No. CH 01 5408 passing in front of the
shop carrying seven to eight persons out of which he identified accused Kishore Kumar (since
dead). PW 9 also has stated to have seen the deceased running while being chased and he
claimed to have seen the deceased firing. He stated about Accused 1 and 2 giving lalkara that
the deceased shall be killed and should not escape. Accused 1 had fired some shots in the air.
Another white car No. CH 01 5408 was also standing there. He had identified accused
Bodhraj, Bhupinder, Rakesh Kumar and the two acquitted accused Rohit and Kewal Krishan.
It has to be noted that Car No. CH 01 5408 was found discarded after it had met with an
accident. This car is stated to be the getaway car.
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20. As the evidence of PWs 1 and 2 are very material it is desirable to note as to what
their evidence was. On 3-8-1994, PW 1 was in his shop. At about 4.30 p.m., A-1
accompanied by the deceased and A-2 came to meet him in a car. A-1 informed him that he
and his colleagues in the car were interested in setting up a flour mill. A-2 was in a hurry to
proceed towards the site. On their way, PW 1 asked A-1 to stop the car to pick up PW 2. A-2
was reluctant to stop the car and only on PW 1’s insistence PW 2 was picked up. When the
deceased was attacked by the assailants and was pursued by the assailants he had started
running towards the national highway. A-2 also ran after the deceased whereas A-1 kept
standing near PW 1. The deceased asked A-1 to bring the car immediately but A-1 only
shouted to one Shori that the deceased should not escape. PW 1 identified A-1 and A-2 who
were present in the Court.
21. PW 2 stated that on 3-8-1994, he was sitting at his house when at about 4 to 4.30 to
5.00 p.m., PW 1 accompanied by A-1 and A-2 came to his residence and asked him to show
some land to the persons accompanying them for the installation of rice-cum-flour mill. They
all went to Dhiansar by car. When they were still seeing the land, A-2 told them that he
approved of the land and led them to the shop. While returning the deceased was attacked by
4-5 persons who were armed with tokas, daggers etc. The deceased started running away
towards the canal and the assailants followed him and assaulted him. Then PW 1 immediately
told him to inform the police, by which time the deceased had started bleeding, and that he
ran to ring up the police. PW 2, however, noticed that while the deceased was running, he
asked accused A-1 to bring the car but the latter did not move. Meanwhile, PW 2 went to the
house of a contractor which was at a distance of 200 ft from the place of occurrence to make
the telephone call. When he came back, he found the dead body of the deceased lying on the
road and heard accused A-2 telling accused A-1 “kam ho gaya, let us go to Jammu”. The
presence of PWs 1 and 2 at the place of occurrence is fortified from the fact that they were
witnesses to the seizure memos Exts. PW-GS, PW-GS/1 and PW-GS/2 recorded by the police
immediately after the incident.
22. Evidence of PWs 8, 9 and 18 are also relevant and their evidence is to the following
effect. PW 8 (Surjit Singh) inter alia, stated as follows:
On 3-8-1994, he had gone for repair of his vehicle to Dhiansar. He was at a tea stall near
the garage when he saw Vehicles Nos. 566 and 5408 parked on the other side of the road. He
saw Kishore armed with a revolver. Shots fired by the deceased caused injuries to two
assailants. Rajesh shot the deceased. The deceased was then surrounded by the assailants and
attacked by tokas, swords etc. Accused Kishore fired in the air and the assailants ran towards
Vehicle No. 5408. He had noticed accused A-1 and A-2 standing near their vehicle. The
assailants reversed the other car and drove towards the deceased and accused Rajesh came out
of the vehicle, picked up the weapon lying near the deceased and they mounted on the vehicle
and drove off. A-1 and A-2 also drove off.
23. PW 9 (Nainu Singh) inter alia, stated as follows:
On 3-8-1994, he was getting a vehicle repaired in a workshop at Dhiansar. He along with
Surjit Singh went towards a tea shop. They heard the sound of firearms being used. They saw
the deceased bleeding profusely and running towards Jammu-Pathankot Road. Six-seven
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assailants were chasing him. They were armed with tokas, churas and revolver. The deceased
while running had fired at the assailants. Kishore Kumar who was armed with a pistol was
running after the deceased. The shots fired by the deceased were fired in his presence. Two of
the accused were identified by him as Subash Kumar and Rajesh Kumar. When the deceased
reached near the road, Rajesh Kumar fired at him and hit on his arm. Thereafter, six to seven
persons surrounded the deceased. They were said to be armed with chakus (knives) and
churas (bigger knives) and were stabbing the deceased. Near the workshop gate, Car No. 566
was standing. This was of grey (slaty) colour. A-2 and A-1 had given a lalkara that the
deceased should be killed and should not escape. A-1 had fired some shots in the air. Another
white car bearing No. CH 01 5408 was also parked there. He noticed the accused sitting in the
car. He had identified Krishan Kumar, A-2 and A-1. The driver reversed the car. It was
stopped near the dead body of the deceased. The revolver lying near the deceased was picked
up. After the car had left, A-1 and A-2 also left in another car. He knew the names of the
accused Bhupinder, Rohit and Rakesh Kumar because he had identified them in the police
station in the presence of the Tahsildar. He deposed that accused Bhupinder, Rakesh, Subash
and Rajesh were holding toka, kirch, sword and revolver respectively. The witness identified
the revolver, sword, kirch and toka and stated that these were the weapons with which the
accused were armed.
24. Evidence of PW 18 (Hari Kumar) inter alia, stated is as follows:
He was the owner of a halwai shop in Parade Ground, Jammu. On 3-8- 1994, at about
11.00 a.m. accused Ravi Kumar came to the shop of Hari Kumar in his Car No. CH 01 5408
and left for Moti Bazar. At 1 or 1.30 p.m., accused Ashok and the deceased came to his shop
and told them that they were going to Hotel Asia for taking meals. They took some sweets
from his shop and left in Car No. JK 02B 566 which belonged to A-1. After 10 or 15 minutes,
A-2 also came to the shop and demanded a scooter from him for going to Hotel Asia, telling
him that he needed the scooter since he had given his car to some friend. He did not give a
scooter to A-2. Half an hour thereafter, he found Car No. CH 01 5408 passing in front of his
office shop carrying 7-8 boys out of which he identified Kishore Kumar (who is now dead).
The car was being driven by a dark-complexioned boy.
25. Some factors which weighed with the High Court in upholding the conviction of the
three accused as was done by the trial court are the evidence of eyewitnesses, PWs 1 and 2.
Evidence of these witnesses has been analysed in detail by both the trial court and the High
Court. Before both the said courts, it was urged that they cannot be termed to be truthful
witnesses. By elaborate reasoning the stand was negatived. Additionally, it was noticed that
both Accused 1 and 2 were seen in the company of the deceased by employees of the
deceased i.e. Darshan Singh (PW 15) and Rajinder Kumar (PW 14). Additionally, Hari
Kumar (PW 18) has also spoken about having seen the deceased in the company of Accused 1
and 2. For some time Accused 1 was not in the company of the deceased and Accused 2. At
that period of time he wanted PW 18 to take him to Hotel Asia. He has also stated that
Accused 2 and the deceased had taken some sweets from his shop and were travelling in Car
No. JK 02B 566. He has also stated about the statement of Accused 1 and 2 that there was
some scuffle between some boys and the deceased at the land which they had gone to see and
in that scuffle the killing took place. The reason for this was stated to be pressure on Accused
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1 and 2 to return the money. One of the important circumstances noticed by the trial court as
well as the High Court is that the land which was to be seen by the deceased was only known
to Accused 1 and 2. Another circumstance noted was the use of Car No. CH 01 5408. There
was some amount of controversy raised about the owner of the car, as was evident from the
lengthy cross-examination made so far as the original owner, that is, L.B. Gupta, Advocate
(PW 31) is concerned.
26. The evidence of PWs 1 and 2 has rightly been accepted by the trial court and the High
Court and we find no reason to discard their evidence. So far as accused Rajesh Kumar is
concerned, as has been found by the trial court and the High Court, live pistol belonging to
Accused 1 was recovered from his house. He has sustained bullet injuries on account of firing
done by the deceased while trying to protect his life.
27. In view of the circumstances noticed and highlighted by the trial court and the High
Court and in our considered opinion rightly the appeals filed by accused Ravinder Kumar and
Ashok Kumar are devoid of merit and deserve dismissal, which we direct.
28. Coming to the appeals filed by the four appellants who were acquitted by the trial
court but convicted by the High Court, it has been argued with emphasis that even if it is
accepted that two views are possible on the evidence, the one in favour of the accused was to
be accepted and their acquittals should not have been lightly interfered with. It is to be noticed
that the trial court placed reliance on the evidence of Hari Kumar (PW 18) for the purpose of
convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it was
not held to be reliable. There was no cogent reason indicated as to why the same was termed
to be unreliable. Additionally, recoveries were made pursuant to the disclosure made by them.
Though arguments were advanced that due procedure was not followed, in view of the
evidence of the witnesses examined by the prosecution in that regard, we find nothing illegal
ruling out its acceptance. There are certain additional features also. A pant was recovered
from the house of Subash Kumar which had holes indicating passage of bullet. However, a
chemist (PW 22) was examined to show when he had gone to purchase the medicine to be
applied to the injury. It was submitted that so far as Santokh Singh (PW 7) is concerned, his
evidence was held to be not reliable. Therefore, the identification of Accused 5 Subash Kumar
by Santokh Singh was not of any consequence. Even if it is accepted, the evidence relating to
recovery established by the evidence of PW 18 cannot be lost sight of.
29. The evidence of Nainu (PW 9) was also described to be unreliable and it was said that
he stood on a par with Santokh Singh. Similar was the criticism in respect of Surjit Singh.
Their evidence has been analysed in great detail by the High Court and has been held to be
reliable. It is of significance that practically there was no cross-examination on the recovery
aspect. We do not find any reason to differ with the High Court in that regard. There can be
no dispute with the proposition as urged by learned counsel for the appellants that when two
views are possible, the one in favour of the accused has to be preferred. But where the
relevant materials have not been considered to arrive at a view by the trial court, certainly the
High Court has a duty to arrive at a correct conclusion taking a view different from the one
adopted by the trial court. In the case at hand, the course adopted by the High Court is proper.
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30. Judged in the aforesaid background, conviction by the High Court of those four who
were acquitted by the trial court does not warrant any interference.
31. The last-seen theory comes into play where the time-gap between the point of time
when the accused and the deceased were seen last alive and when the deceased is found dead
is so small that possibility of any person other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases to positively establish that the
deceased was last seen with the accused when there is a long gap and possibility of other
persons coming in between exists. In the absence of any other positive evidence to conclude
that the accused and the deceased were last seen together, it would be hazardous to come to a
conclusion of guilt in those cases. In this case there is positive evidence that the deceased, A-1
and A-2 were seen together by witnesses, i.e., PWs 14, 15 and 18; in addition to the evidence
of PWs 1 and 2.
32. It was submitted that there was unexplained delay in sending the FIR. This point was
urged before the trial court and also the High Court. It was noticed by the High Court that
Showkat Khan (PW 38) was an investigating officer on 3-8-1994 for a day only. He had taken
steps from 5.30 evening onwards to 9.00 p.m. on the spot. Thereafter, Gian Chand Sharma
(PW 42) was asked to investigate into the matter. It was also noticed that the road between
Bari Brahamana and Samba where the court was located was closed due to traffic on account
of heavy rains. Though, the road was open from Jammu to Bari Brahamana but it was closed
from Bari Brahamana to Samba. The day’s delay for the aforesaid purpose (the FIR had
reached the Magistrate on 5-8-1994) cannot be said to be unusual when proper explanation
has been offered for the delay. The plea of delayed dispatch has been rightly held to be
without any substance.
33. Another point which was urged was the alleged delayed examination of the witnesses.
Here again, it was explained as to why there was delay. Important witnesses were examined
immediately. Further statements were recorded subsequently. Reasons necessitating such
examination were indicated. It was urged that the same was to rope in the accused persons.
This aspect has also been considered by the trial court and the High Court. It has been
recorded that there was a valid reason for the subsequent and/or delayed examination. Such
conclusion has been arrived at after analysing the explanation offered. It cannot be laid down
as a rule of universal application that if there is any delay in examination of a particular
witness the prosecution version becomes suspect. It would depend upon several factors. If the
explanation offered for the delayed examination is plausible and acceptable and the court
accepts the same as plausible, there is no reason to interfere with the conclusion.
35. Therefore, in the aforesaid background, the appeals filed by the four appellants who
were acquitted by the trial court but convicted by the High Court also deserve dismissal which
we direct.
36. Coming to the appeal filed by the State in respect of whom both the trial court and the
High Court recorded acquittal, it is seen that there was no acceptable material. This aspect has
been analysed in great detail by the trial court and the High Court and we do not find any
reason to interfere with the conclusions. The appeal filed by the State is accordingly
dismissed. In the ultimate result, all the four appeals are dismissed.
