Ajay Kumar Vs State of Punjab

This judg m ent shall dispose of above-me n tioned two appeals i.e. CRA- D - 151-DB-20 0 4 filed by Ajay Kumar and C R A-D-183-DB-2004 filed by Jas b ir Singh @ M itha, as both are directed agai n st the same very judgment da t ed 10.12.2003 passed by learned Sessions Ju d ge, Hoshiarpur, whereby both t he accused/ap p ellants namely Ajay Kumar an d Jasbir Singh @ Mitha have b e en

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held guilty of having committed offence u n der Section 302 read with Section 34 IPC and have been sentenced to underg o imprisonment for life and also to pay a fine a mounting to Rs.10,000/- each.

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The matte r arises out of FIR No.1 dat e d 04.01.2003 registered at P.S. Garhshank a r, District Hoshiarpur, under Sections 302 & 377 IPC lodged at the instan c e of Gurmit Singh. The tr a nslated gist of Gurmit Sing h ’s statement ( E x.PA) reads as under:

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“I a m resident of Village Goppalpur, P. S . Rajpura, District Patiala. Since t he last 4 years, I have been managing the property of Dera Sant Baba Sant o kh Sing h , Shahpur, P.S. Garhshankar, H o shiarpur. Today i.e. 04.01.2003 at abou t 3.00 PM, when I alongwith Jar n ail Singh had gone to forest to r e ap and b ring reeds, we came across dead b ody of an unknown boy aged ab o ut 12/13 years lying near the bushes. T he dead body was naked and b o re injuri e s on head and forehead and it appeared that some unknown person h ad com m itted unnatural offence with the s aid boy. Two blood stained sto n es and a blood stained handkerchief were lying near the dead body. I stron g ly belie v e that some unidentified person, after committing unnatural sex, h ad murd e red the boy by inflicting injuries o n his head with stones. I left Jar n ail Sing h near the dead body and was pro c eeding to the police station to lo d ge repor t when you met me on the way. I have got my statement record e d. Action be taken.”

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Inspector J a sbir Singh (PW-17), after reco r ding the aforesaid statement, s e nt the same t o the Police Station for lod g ing FIR (Ex.PDD). Thereafter, Inspector J asbir Singh accompanied by A SI Bhupinder Singh and ot h er police officials proceeded to the place of o c currence where Jarnail Singh w as present alo n gwith dead body. A rough si t e plan of the place of occurre n ce was prepar e d. Photographs of the place o f occurrence were also taken. T w o blood stai n ed stones, a blood stained h a ndkerchief, a pair of slippers , a

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match-box, a wrapper of ‘ beeri’ (cigarette) and a trouser etc. were taken i n to possession. Blood stained soil was als o lifted from the spot. Inqu e st proceeding s were conducted. The dead body was sent for post-mort e m examinatio n . Statements of the witnesses w ere recorded.

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It is furthe r the case of prosecution that p u rsuant to an announcement m a de through p u blic audio system from Gu r dwara of the village regarding identificati o n of dead body of unknown bo y aged about 12/13 years, lying in the Police Station, Garhshankar, Joga Ra m , his younger brother Surjit, h is son-in-law Pammi @ Paramjit and his d a ughter Rajni went to the Pol i ce Station Ga r hshankar and identified the dea d body to be of Gurpreet Singh @ Gogi son o f Joga Ram. As per prosecutio n , thereafter the Panchayat han d ed over a pan c hayatnama (Ex.PE) alongwith a letter written by Jasbir Singh @ Mitha (acc u sed) to the police. As per th e said panchayatnama , since J o ga Ram (fath e r of deceased Gurpreet @ Go p i) suspected that Jasbir Singh @ Mitha and A jay Kumar were involved in d isappearance of his son Gurpr e et Singh @ G o gi, he convened a Panchayat o n 01.01.2003 wherein Jasbir Singh @ Mitha a n d Ajay Kumar had been given 8 days’ time to trace out Gurpr e et @ Gopi.

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Both the a ccused were arrested on 04. 0 2.2003. During the course of interrogati o n on 06.02.2003, accused Ajay Kumar and Jasbir Singh @ Mi t ha suffered se p arate disclosure statements (E x .PO & Ex.PQ respectively) to t he effect that after enticing Gurpreet Sing h @ Gogi on 25.12.2002, t h ey confined h i m in a cycle khokha (kiosk) a nd later on they took him o n a scooter to t he forest and killed him by i n flicting injuries with stones a nd kirpan . P u rsuant to the said disclosure st a tements, both the accused led t he

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police to t h e said nominated places i.e. khokha (kiosk) where they h ad confined G u rpreet Singh and the forest wh e re they had killed him by pointing out the sa m e. One Bajaj Chetak Scooter b e aring registration No.PB-20-4480 was also t aken into possession vide r e covery memo Ex.PT from t he residential house of Jasbir Singh @ Mi t ha. Pursuant to his disclos u re statement, a ccused Jasbir Singh @ Mitha a lso got recovered a kirpan , wh i ch was also ta k en into possession vide recover y memo Ex.PU.

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Upon conclusion of investigation, challa n was presented against both t he accused i.e. Jasbir Singh @ Mitha and A jay Kumar on 22.04.2003 in t he Court of S DJM, Garhshankar, who com m itted the case to the Court of Sessions vi d e order dated 24.04.2003. Le a rned Sessions Judge, Hoshiarp u r, framed ch a rges against both the accuse d for offences punishable un d er Sections 3 0 2 and 377 IPC on 20.05.2003 t o which both the accused plea d ed not guilty a n d claimed trial.

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The prosec u tion in order to establish its c a se examined as many as 17 P W s. The gist of t heir testimonies is being briefl y referred to herein under:-

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PW-1 Gu r mit Singh stated that on 04.01. 2 003, he had gone to cut the re e ds an d when he was on his way, he s a w a dead body of a boy of the a ge of 1 2/13 years, which was naked a nd bore injuries on the head a nd for e head. He further stated that so m e blood stained stones were a l so lyi n g near the dead body and that h e went back to the Dera Sant B a ba Sa n tokh Singh. Thereafter, while h e was on his way to police stati o n, he met the police on the way b e fore whom he got his statem e nt (E x .PA) recorded. He stated th a t the inquest proceedings w e re co n ducted in his presence.

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PW-2 Jar n ail Singh stated that on 04 . 01.2003, he was accompanying Gu r mit Singh when they came acr o ss dead body of a boy, which b o re

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ma r ks of injuries on his face and that thereafter Gurmit Singh went to the police station for furnishing in f ormation while he remained n e ar the dead body. He also stated wit h regard to the blood stained sto n es lyi n g near the dead body apart fro m the slippers etc.

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PW-3 Rajni @ Ghuggu, sister of decease d Gurpreet, stated that she has t w o sist e rs, who are already married a n d that her brother Gurpreet Singh @ G opi has died. She stated that on 25.12.2002, while her mot h er wa s away to attend a Bhog cere m ony, she alongwith her brot h er Gu r preet Singh was present in th e house and that Gurpreet Si n gh we n t out to fly kite in the afterno o n, but did not return back. La t er wh e n her father returned back h ome, they started searching f or Gu r preet Singh and also put up th e matter before the Panchayat and tha t they had suspicion against bo t h the accused. She further sta t ed tha t on 01.01.2003, the Panchaya t called both the accused nam e ly Jas b ir Singh @ Mitha and Ajay K umar, wherein they undertook to tra c e out Gurpreet Singh, but they f ailed to produce him. She furt h er sta t ed that Jasbir Singh @ Mitha was working as a tailor near h er ho u se and had a love affair with h e r and he had written a love let t er (E x .PC) addressed to her which h e passed on to her through Ajay Ku m ar. She further stated that e ven on earlier occasions, Jas b ir Sin g h used to write love letters to h er and that she could identify h is ha n d-writing and that the love lett e r (Ex.PC) is in the hands of Jas b ir Sin g h. PW-3 stated that about 1 5 /20 days prior to the occurren c e, wh e n she was talking to Jasbir Si n gh accused, her brother Gurpr e et Sin g h had seen them and had star t ed hurling abuses to Jasbir Si n gh up o n which Jasbir Singh threaten e d Gurpreet Singh that in case he dis c losed anything to anyone, he w ill be done to death. She sta t ed tha t Jasbir Singh used to give beat i ngs to Gurpreet Singh (decease d ). Sh e further stated that police had v i sited their village and a Pancha y at ha d also been convened during th e course of which she had han d ed ov e r letter Ex.PC to the police in th e presence of Panchayat.

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PW-4 Nir m al Singh stated that he worke d in the Army for about 6 years a nd up o n being discharged, he becam e President of Guru Singh Sa b ha Gu r dwara in his village and that h e knew both the accused nam e ly Jas b ir Singh and Ajay Kumar an d also knows Rajni and that t he deceased was brother of Rajni. He further stated that he had seen t he lett e r Ex.PC written in hindi an d that Joga Singh (father of t he deceased) had told him that said letter had been written by Jas b ir Sin g h to his daughter Rajni. He further stated that t he pa n chayatnama was handed over b y him to the police.

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PW-5 Joga Ram @ Jogi Ram @ Joga S i ngh, father of deceased Gurpr e et Sin g h, stated that he has three da u ghters including Rajni and ha d a so n i.e. Gurpreet Singh @ Gogi ( d eceased). He stated that he kn e w Jas b ir Singh, who was working as a tailor in their village and that on 25. 1 2.2002, when he returned hom e from his work at about 8.30 P M , his wife and daughter Rajni infor m ed him that Gurpreet Singh w as mi s sing and although they searched for him, but he could not be fou n d. He further stated that his w ife had told him that Jasbir Singh acc u sed had been taunting and t hreatening Rajni and had gi v en be a tings to his son Gurpreet Singh on 2-3 occasions as Gurpreet h ad been objecting to the taunts by Ja s bir Singh. He further stated t h at Jas b ir Singh had sent a letter to Rajni through co-accused Ajay Ku m ar, but he did not go throug h the contents although he kn e w ab o ut the same and that his daugh t er upon receipt of said ‘ruqa’ h ad co n signed the same to flames. H e further stated that another let t er Ex. P C had also been sent by Jasbi r Singh accused. He stated that on 04. 0 1.2003 upon getting informati o n regarding the presence of d e ad bo d y in the police station, he alo n gwith Surjit Singh (his youn g er bro t her), Pammi @ Paramjit (hi s younger son-in-law) and Ra j ni (da u ghter) went to the police statio n and although the dead body w as be y ond recognition, but they ident i fied the same from the clothes of his son.

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PW-6 Dr. Gurpal Singh, Medical Officer, Civil Hospital, Garhshankar, who ha d conducted post-mortem exa m ination on the dead body of Gu r preet Singh on 05.01.2003, p r oved the post-mortem report as Ex. P J, wherein he described the in j uries found on the dead body and opi n ed that the cause of death in t h is case was injury to brain, wh i ch wa s sufficient to cause death in o rdinary course of nature. Upon bei n g shown a small kirpan (Ex.P10), he opined that injuries No.1, 2 & 3 could be caused by a small ki r pan , whereas injury No.10 co u ld be c aused by stones.

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PW-7 Pa w an Kumar stated that he knew Gurpreet Singh (deceased), as he wa s brother of his wife, who had b een murdered on 04.01.2003 a nd wh o had been missing from his h o use since 25.12.2002. He sta t ed tha t 2/3 days after Gurpreet went m issing, he had received intimation reg a rding the same pursuant to which he went to the village of his i n- la w s. He further stated that late r when information regarding t he pre s ence of a dead body in the police station was received, he alo n gwith Rajni went to the poli c e station and identified the d e ad bo d y. He further stated that he kn e w Ajay Kumar, but did not kn o w the co-accused and that on 19.01. 2 003, when he was moving in t he out - skirts of his village, both the accused met him and confessed their gui l t to the effect that on 25.12.2 0 02, they had kidnapped Gurpr e et Sin g h and had detained him some w here and had thereafter murde r ed hi m . He further stated that the a ccused requested him to get t he ma t ter compromised with his fathe r -in-law.

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PW-8 Dil d ar Singh, Patwari, stated that he had prepared the scaled site p l an Ex. P M of the place of occurrence.

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PW-9 AS I Bhupinder Singh, who had r e mained associated with Inspec t or Jas b ir Singh during the course of i n vestigation, stated with regard to the proceedings of investigation. H e stated that it was in his prese n ce tha t the complainant Gurmit Singh had met Inspector Jasbir Singh at bus stop Garhi Matton on 04.01 . 2003 and had got his statem e nt Ex. P A recorded. He has stated t h at he had accompanied Inspec t or

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Jas b ir Singh to the place of occ u rrence where the dead body of Gu r preet Singh was found lying a n d by the side of dead body, blood stained stones, handkerchief, slipp e rs, match box, trouser, underw e ar etc. were also found, which were taken into possession. He sta t ed tha t blood stained soil was also t a ken into possession. He furt h er sta t ed that Ajay Kumar was inter r ogated on 06.02.2003 during t he co u rse of which he suffered a di s closure statement (Ex.PO) to t he eff e ct that they had confined the deceased in a khokha (kiosk) on Na n gal road. He also stated with regard to the disclosure statem e nt (E x .PQ) made by accused Jasbir Si n gh to a similar effect. He furt h er sta t ed with regard to recovery of a scooter and a small kirpan at t he ins t ance of Jasbir Singh.

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PW-10 HC Iqbal Singh, who is a formal w itness, tendered into evidence h is affidavit Ex.PV, wherein he depo s ed that on 04.01.2003, when he wa s posted as MHC in Police Sta t ion Garhshankar, Inspector Jas b ir Sin g h had deposited with him o ne parcel containing two blood stained stones and that he sent the s aid parcel through Constable J o ga Ra m for depositing the same i n the office of FSL, Punj a b, Ch a ndigarh on 21.04.2003, which was accordingly deposited on t he sa m e day and that as long as the p arcel remained in his possessi o n, the same was not tampered with.

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PW-11 Co n stable Joga Ram, who is a for m al witness, tendered into evide n ce his affidavit Ex.PX, wherein he d e posed that on 21.04.2003, M H C Iqb a l Singh had handed over to hi m the case property i.e. one par c el co n taining blood stained two ston e s, for depositing the same in t he off i ce of FSL, Chandigarh, which he accordingly deposited on t he sa m e day and that as long as the p arcel remained in his possessi o n, the same was not tampered with.

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PW-12 Ka r nail Singh stated that he kno w s Jasbir Singh accused and t h at ab o ut 1 year ago, he had borrow e d his scooter bearing registration No . PB-20-4480 (make Bajaj Che t ak) from him while representing

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tha t he has to take his ailing mothe r to his maternal grand-parents a nd tha t the accused Jasbir returned the scooter after 3 days.

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PW-13 HC Bakhshish Singh, who is a for m al witness, tendered into evide n ce his affidavit Ex.PZ, wherein he deposed that on 04.01.2003, Inspec t or Jas b ir Singh had handed over to him one unidentified dead body rec o vered from the forest of vill a ge Shahpur for getting the postmo r tem examination conducted. He further stated that on 05. 0 1.2003, Rajni came to the Ci v il Hospital, Garhshankar and on see i ng the dead body, she identified the same to be of her brot h er Gu r preet Singh @ Gopi and that a ft er getting conducted post-mort e m ex a mination, the dead body was en t rusted to the legal heirs.

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PW-14 Su k hdev Sharma, photographer, st a ted that he had taken photogra p hs of t he place of occurrence and pro v ed the negatives as Ex.P14 to P16 an d positive thereof as Ex.P17 to E x .P19.

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PW-15 Ra m Chand, Clerk, office of SD M , Balachaur, stated that as p er rec o rd, the vehicle bearing r e gistration No.PB-20-4480 w as reg i stered in the name of Karnail S i ngh.

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PW-16 AS I Ravi Dutt stated that on 04. 0 1.2003, he was posted at Pol i ce Sta t ion Garhshankar and that upo n receipt of statement of Gur m it Sin g h, formal FIR Ex.PDD had be e n lodged under his signatures.

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PW-17 Ins p ector Jasbir Singh, who is the I nvestigating Officer in the pres e nt cas e , stated in detail with regard to the entire investigation conduc t ed in t h e matter right from the lodgin g of FIR upto the filing of chall a n. He proved various documents/me m os prepared during the course of inv e stigation including the disclosure statements made by both t he acc u sed and the recoveries effected pursuant thereto.

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Upon clos u re of the prosecution evidenc e , statements of both the accu s ed were recor d ed in terms of Section 313 Cr.P.C., wherein they denied the ent i re

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case of pro s ecution and pleaded false impli c ation. The accused, however, d id not lead an y evidence in his defence.

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The learne d trial Court, upon appreciating the evidence on record, held t h at while char g es with respect to offence un d er Section 377 IPC could not be proved, bu t charges for offence under Sec t ion 302 read with Section 34 I P C stood duly proved and consequently, both the accused were held guilty f or having co m mitted offence under Section 302 read with Section 34 IPC v i de impugned j u dgment.

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Learned co u nsel representing the appellant s , while assailing their convicti o n, submitted t h at they have falsely been impl i cated in the present case and t h at there is n o evidence worth credence to connect them with the alle g ed occurrence in any manner. It has been sub m itted that it is a case based tota l ly on circum s tantial evidence and that the c ircumstantial evidence is in t he shape of a n alleged ‘love letter’, which c annot be attributed to any of t he accused, as the hand-writing on the same was never examined and that t he other piece of evidence is in the shape o f alleged extra judicial confession before an interested witness i.e. son-in- l aw of Joga Ram (father of t he deceased), which in any case would ot h erwise also be a weak type of evidence. L earned counsel submitted that other than the said evidence, t he only evide n ce is of alleged recovery of a s mall kirpan , which too cannot be connected w ith the alleged crime and as such, both the accused/appella n ts deserve to b e acquitted.

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Opposing t h e appeals, learned State counsel submitted that even though t he case is bas e d on circumstantial evidence, but the evidence collected by t he

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investigati n g agency is cogent and convi n cing enough to form a compl e te chain leadi n g to a definite conclusion as regards involvement of both t he accused. L earned State counsel, thus, p rayed for dismissal of both t he appeals.

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We have c o nsidered rival submissions ad d ressed before this Court and with the assistance of learned counsel have also p erused the record of the case.

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Since the f i ndings have been recorded by t he trial Court as regards the c a se being a ca s e of homicidal death, it is a p posite to first of all refer to t he medical ev i dence led by the prosecution w ith regard to the homicidal death. The prosec u tion has examined PW-6 Dr. G urpal Singh, who had conduc t ed the post m ortem examination on the d e ad body of Gurpreet Singh on 05.01.2003 . He proved the post-mortem r eport as Ex.PJ and described t he injuries fou n d on the dead body as under:

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“1. Incis e d wound 2.3 cm x 1 cm present o n the left side of head, 7 cm ab o ve the left pinna, runs forward and mediall y .

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1. Incis e d wound 3.6 cm x 1.2 cm pre s ent on the forehead in the mid d le verti c ally placed above the bridge of no s e.

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1. Incis e d wound 2.6 cm x 1.1 cm present on the left side of cheek 1.5 c m belo w the left eye, obliquely placed do w nwards laterally.

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1. Incis e d wound 0.6 cm x 0.3 cm present o n the bridge of nose. 5. Incis e d wound 1 x 0.5 cm present on th e right side of cheek, 1 cm below t he inner half lower eye lid.

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1. Incis e d wound 1 cm x 0.6 cm present o n the left side of face, 3.5 cm fr o m the m idline on the ramus lower jaw.

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1. Incis e d wound 2.2 cm x 1.3 cm presen t on the right side of pubic area 1 c m outer to root of penis.

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1. Redd i sh brown abrasion 1 cm x 0.5 c m present on the dorsum of penis n e ar the r o ot of penis.

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Redd i sh brown abrasion 3 cm x 1 cm p resent on the front of medial side of uppe r 1/3rd right thigh.

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Blac k ish brown bruise in an area 10 cm x 8 cm present on the forehead, fa c e, extending around the bridge of nose. Le f t eye was disfigured.”

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PW-6 Dr. Gurpal Singh was shown a k i rpan , which had been recove r ed during the course of investigation alleged l y at the instance of accused a nd upon seen t he kirpan , the doctor opined t h at the injuries No.1, 2 & 3 co u ld have been c aused with kirpan . He further s tated that injury No.10 could h a ve been cause d by a stone. Upon perusal of all the 10 injuries, 7 of which a re incised wo u nds, and upon perusal of the testimony of PW-6 and his opini o n, which has remained unshattered despite cross-examination, we have no hesitation t o affirm the findings of the trial Court to the effect that it is a c a se of homicid a l death, wherein the deceased h ad been inflicted multiple injur i es with sharp e dged/blunt weapon leading to h is death.

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In a case, b ased on circumstantial evide n ce, the inference of guilt can be drawn onl y when all the incriminating fac t s and circumstances are found to be incomp a tible with the innocence of th e accused. The law with regard to appreciatio n of circumstantial evidence h a s been clearly enunciated in t he case of Ha n umant v. State of Madhya Prad e sh, AIR 1952 Supreme Court 3 4 3,

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wherein it w as held as follows:

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"10. It is well to remember that in cases w here the evidence is of a circumstan t ial n a ture, the circumstances from which the conclusion of guilt is to be dra w n s h ould in the first instance be fully est a blished, and all the facts so establis h ed s h ould be consistent only with the h ypothesis of the guilt of the accused. A gain, the circumstances should be o f a conclusive nature and tendency a nd t h ey should be such as to exclude eve r y hypothesis but the one proposed to be p r oved. In other words, there must be a chain of evidence so far complete as n o t to leave any reasonable ground for a conclusion consistent with t he

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i n nocence of the accused and it must b e such as to show that within all hu m an p r obability the act must have been don e by the accused."

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The aforesa i d principles have consistentl y been followed and have b e en affirmed in c atena of authorities. Recently, a three Judges Bench of Hon' b le Apex Court r eiterated the aforesaid position of law in 2025(1) RCR(Crimin a l) 12, Vishwaje e t Kerba Masalkar v. State of M a harashtra , while stating as und e r:

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“20. T h e law with regard to conviction on t he basis of circumstantial evidence h as v e ry well been crystalised in the judg m ent of this Court in the case of Sha r ad Birdhichand Sharda v. State of Maha r ashtra (1984) 4 SCC 116 : 1984 I N SC 1 2 1 , wherein this Court held thus:

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"152. Before discussing the cases relie d upon by the High Court we would l i ke to cite a few decisions on th e nature, character and essential pr o of required in a criminal case whic h rests on circumstantial evidence alo n e. The most fundamental and basi c decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly follo w ed and applied by this Court in a la r ge number of later decisions up-to-d a te, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be us e ful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 19 5 2 SCR 1091 : 1953 Cri LJ 129] :

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"It is well to remember tha t in cases where the evidence is o f a circumstantial nature, the circ u mstances from which the conclusio n of guilt is to be drawn should i n the first instance be fully established, and all the facts so establis h ed should be consistent only with t he hypothesis of the guilt of th e accused. Again, the circumstan c es should be of a conclusive n a ture and tendency and they should be such as to exclude every h y pothesis but the one proposed to be proved. In other words, the r e must be a chain of evidence so far complete as not to leave a n y reasonable ground for a conclus i on consistent with the innocence of the accused and it must be such a s to show that within all human p robability the act must have been d o ne by the accused."

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1 5 3. A close analysis of this deci s ion would show that the follow i ng conditions must be fulfilled befo r e a case against an accused can be said to be fully established:

¶110

(1) the circumstances from whic h the conclusion of guilt is to be dra w n should be fully established. It may be noted here that this C o urt indicated that the circumstan c es concerned "must or should" and n ot "may be" established. There is not only a grammatical but a legal distinction between "may b e proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

¶111

"Certainly, it is a pri m ary principle that the accused must be and not merely may be guilty before a court can convict and t he mental distance betwe e n may be' and must be' is long a nd divides vague conjectu r es from sure conclusions."

¶112

(2) the facts so established shoul d be consistent only with the hypoth e sis of the guilt of the accuse d , that is to say, they should not be explainable on any other hypothesis except that the accused is guilt y ,

¶113

(3) the circumstances should be o f a conclusive nature and tendency,

¶114

(4) they should exclude every p o ssible hypothesis except the one to be proved, and

¶115

(5) there must be a chain of evi d ence so complete as not to leave a ny reasonable ground for the conclusion consistent with the innocenc e of the accused and must show t h at in all human probability the act must have been done by the accuse d .

¶116

1 5 4. These five golden principles, if w e may say so, constitute the panchsheel of the proof of a case based on ci r cumstantial evidence."

¶117

It can thus clearly be seen that it is necessary for the prosecution that t he c i rcumstances from which the conclusion of guilt is to be drawn should be f u lly established. The Court held that i t is a primary principle that the accu s ed **m** ust be' and not merelymay be' pro v ed guilty before a court can convict t he a c cused. It has been held that there is not only a grammatical but a le g al d i stinction between may be proved' a **n** d must be or should be proved'. It h as

¶118

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¶119

CRA-D-151-DB-2004 ( O&M) & CRA-D-183-DB-2004 ( O&M)

¶120

( 15 )

¶121

b e en held that the facts so established should be consistent only with the g u ilt o f the accused, that is to say, they s h ould not be explainable on any ot h er h y pothesis except the one where the a c cused is guilty. It has further been h e ld t h at the circumstances should be s u ch that they exclude every possi b le h y pothesis except the one to be prove d . It has been held that there must be a c h ain of evidence so complete as not to leave any reasonable ground for t he c o nclusion consistent with the innoce n ce of the accused and must show tha t in a l l human probabilities, the act must h a ve been done by the accused.”

¶122

Admittedly, the instant is a case of blind m urder not witnessed by anybody and the pr o secution seeks to establish its case on the following pieces of circumstan t ial evidence:

¶123

(i) E x tra judicial confession before P W -7 Pawan Kumar; (ii) M otive i.e. the deceased objectin g to the love affair of the accu s ed J a sbir Singh @ Mitha with his s ister Rajni in respect of whic h a lo v e letter has been brought on re c ord; &

¶124

(iii) R e covery of kirpan at the instanc e of Jasbir Singh @ Mitha.

¶125

Extra judicial confession : The first circu m stance on which the prosecution banks upo n is the alleged extra judicial co n fession stated to have been m a de by the acc u sed before one Pawan Kumar. Pawan Kumar, while appearing in the witness - box as PW-7, stated that on 1 9 .01.2003 when he was moving on the out-ski r ts of his village (village Noor p ur Bedi), both the accused out of whom he k n ew Ajay Kumar previously ca m e to him and confessed their g u ilt to the eff e ct that on 25.12.2002, they had kidnapped Gurpreet Si n gh (deceased) and had detained him somew h ere for a couple of days and h ad thereafter m urdered him. PW-7 Pawan Ku m ar further stated that the accu s ed requested h im to get the matter compromi s ed with his father-in-law i.e. J o ga Ram (fathe r of the deceased) and to help th e m.

¶126

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¶127

CRA-D-151-DB-2004 ( O&M) & CRA-D-183-DB-2004 ( O&M)

¶128

( 16 )

¶129

An extra j u dicial confession, as repeatedly held by Hon’ble the Apex Co u rt, is a weak t y pe of evidence and at best can b e used for corroborative purpos e s. In order to examine the reliability of the s aid extra judicial confession, t he relationshi p /status of the person before wh o m accused had confessed his g u ilt and the cir c umstances under which such i s made also need to be examin e d. In the pres e nt case, PW-7 Pawan Kumar i s none else, but son-in-law of J o ga Ram (father of deceased). He is brother-in-law (Jija) of PW-3 Rajni w i th whom the a ccused Jasbir Singh had some k ind of affair, as claimed by P W -3 Rajni hers e lf. Under these circumstances, it becomes highly suspect as to whether th e accused would have really ch o sen to confess before this witness. Rather the close relationship of the said w itness being son-in-law of J o ga Ram (fathe r of the deceased) would also m a ke him an interested witness. H e has nowhe r e stated that he had produced the accused before police or h ad informed a n ybody else about the alleged extra judicial confession. Un d er these circu m stances, apart from the fact th a t an extra judicial confession i s a weak type o f evidence, the alleged extra ju d icial confession in the instant c a se made by t h e accused before an interest e d witness would otherwise a l so become su s pect and it is certainly not safe t o rely upon on such extra judicial confession.

¶130

Motive : In a case based on circumstanti a l evidence, motive also plays an important r o le though of course it is not s i ne qua non to prove a case ba s ed on circums t antial evidence. In the prese n t case, the motive alleged is t h at Rajni (sist e r of the deceased) was having a love affair with accused Jas b ir Singh @ M itha and since Rajni’s brother i. e . the deceased, had come to kn o w about the s a me and was raising objection, t he accused had threatened him of

¶131

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¶132

CRA-D-151-DB-2004 ( O&M) & CRA-D-183-DB-2004 ( O&M)

¶133

( 17 )

¶134

dire conseq u ences. PW-3 Rajni has specifi c ally stated in this regard. She h as also stated t hat accused Jasbir Singh @ Mit h a had been sending love letters to her and on e of such letters (Ex.PC) was se n t to her through co-accused Ajay Kumar. P W -3 Rajni while in the witness - box stated that she identified t he hand-writi n g of Jasbir Singh on the said letter, which was also produ c ed before the p olice alongwith one panchayat n ama . It is the case of prosecution that the a c cused while in the Panchaya t had undertaken to produce t he deceased w ithin eight days. PW-4 Nirma l Singh also stated about the s a id panchayat n ama and also about the letter (E x .PC).

¶135

As far as l etter (Ex.PC) in question is c o ncerned, the prosecution has n ot chosen to get the hand-writing examine d from any expert so as to lend authenticit y to the said letter. It is only t h e statement of PW-3 Rajni, w ho claims to h a ve identified the hand-writing t o be that of Jasbir Singh @ Mit h a, on which the prosecution relies to prove the said letter. PW-3 Rajni c an neither be s aid to be an expert of hand wri t ing nor it can be said that she h ad seen the ac c used Jasbir Singh writing and signing the documents inasmuch as no other d o cument written by Jasbir Sin g h has been produced on reco r d. Under thes e circumstances, the letter (Ex.P C ) in question cannot be said to be written by a ccused Jasbir Singh. Shorn of t he said letter, we are left with t he statement o f PW-3 Rajni who has stated t hat her brother i.e. the deceas e d, having co m e to know about her affair with Jasbir Singh, the said accused h ad issued thre a ts to her brother and warned h i m of dire consequences. Eve n if the said m o tive is held to be lying with t he accused Jasbir Singh, still t he prosecutio n faces an uphill task to establish its case.

¶136

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¶137

CRA-D-151-DB-2004 ( O&M) & CRA-D-183-DB-2004 ( O&M)

¶138

( 18 )

¶139

Recovery of kirpan : Another piece of e v idence on which the prosecution relies upon is recovery of kirpan at the in s tance of accused Jasbir Singh @ Mitha. As per the case of prosecution, th e accused upon his arrest had b e en interrogate d by Inspector Jasbir Singh duri n g the course of which he suffe r ed a disclosur e statement as regards having c o ncealed a kirpan and pursuant to the said st a tement, he had got the said kir p an recovered. While it is corr e ct that the de a d body was found to be beari n g several incised wounds and t he doctor has a lso opined that injuries No.1, 2 & 3 could have been caused w i th the said ki r pan , but the factum of recov e ry of a kirpan at the instance of accused Ja s bir Singh can be used only t o such a limited extent only i .e. recovery o f kirpan and nothing beyond tha t . It is not the case of prosecution that the s a id kirpan was blood stained or was got examined from any chemical e x aminer. In the absence of any evidence regarding its use, as i t is not the case that human blood was foun d on the same, the factum of s a id recovery would itself not be sufficient to c onnect the accused with the s a id crime.

¶140

The net res u lt is that at best it can be said that one of the accused i.e. Jas b ir Singh @ M itha would have some motiv e to murder the deceased, but t he same at b e st could only lead to a suspicion as there is no other strong connecting evidence to link him with the m urder of the deceased. It is w ell settled that suspicion howsoever strong c a nnot take the place of eviden c e. Hon’ble th e Supreme Court in AIR 2022 S C 5110, Subramanya Vs. State of Karnataka , while reiterating the aforesaid l e gal position, held as under:

¶141

“92. Thus , even if it is believed that the accused appellant had a motive to com m it the crime, the same may be a n important circumstance in a c a se

¶142

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¶143

CRA-D-151-DB-2004 ( O&M) & CRA-D-183-DB-2004 ( O&M)

¶144

( 19 )

¶145

base d on circumstantial evidence but cannot take the place as a conclus i ve proo f that the person concerned was th e author of the crime. One could e v en say t h at the presence of motive in the facts and circumstances of the c a se creat e s a strong suspicion against the accused appellant but suspici o n, hows o ever strong, cannot be a substitut e for proof of the guilt of the accu s ed beyo n d reasonable doubt. The trial c ourt rightly disbelieved motive to com m it the crime as the evidence in this regard is absolutely hearsay in natur e .”

¶146

Consequen t ly, we find that the prosecut i on has miserably failed to l e ad evidence to establish all the links in the ch a in of circumstantial evidence fr o m which it ca n be said with certainty that it i s the accused, who had commit t ed the murder of deceased. Resultantly, the findings as recorded by the t r ial Court as re g ards guilt of the accused are u n sustainable and deserve to be s et aside.

¶147

Both the a p peals, as such, are allowed an d impugned judgment and order of sentence d a ted 10.12.2003 passed by learn e d Sessions Judge, Hoshiarpur a re hereby set aside. The appellants are ac q uitted of all the charges fra m ed against the m . Their bail bonds/surety bond s shall stand discharged.

¶148

A copy of t his judgment be sent to the qu a rters concerned. Case property be dealt with under rules upon expiry o f limitation for filing app e al appeal/revi s ion, as the case may be.

¶149

(GURVINDER SINGH GILL) JUDGE

¶150

(JASJIT SINGH BEDI) 27.05.2025 JUDGE

¶151

Vimal

¶152

Whether speaking/reasoned: Yes/No Whether reportable: Yes/No

¶153

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Ajay Kumar v. State of Punjab

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Ajay Kumar v. State of Punjab

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