In Balwinder Singh v. State of
Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri)
59] this Court stated the principle that: (SCC p.
265, para 10)
“10. An extra-judicial confession by its
very nature is rather a weak type of
evidence and requires appreciation with
a great deal of care and caution. Where
an extra-judicial confession is
surrounded by suspicious
circumstances, its credibility becomes
doubtful and it loses its importance.”
57. In Pakkirisamy v. State of T.N. [(1997) 8 SCC
158 : 1997 SCC (Cri) 1249] the Court held that:
(SCC p. 162, para 8)
“8. … It is well settled that it is a rule of
caution where the court would generally
look for an independent reliable
corroboration before placing any
reliance upon such extra-judicial
confession.”
58. Again, in Kavita v. State of T.N. [(1998) 6 SCC
108 : 1998 SCC (Cri) 1421] the Court stated the
dictum that: (SCC p. 109, para 4)
2 (2012) 6 SCC 174
“4. There is no doubt that convictions
can be based on extra-judicial
confession but it is well settled that in
the very nature of things, it is a weak
piece of evidence. It is to be proved just
like any other fact and the value thereof
depends upon the veracity of the
witness to whom it is made.”
59. While explaining the dimensions of the
principles governing the admissibility and
evidentiary value of an extra-judicial confession,
this Court in State of Rajasthan v. Raja
Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965]
stated the principle that: (SCC p. 192, para 19)
“19. An extra-judicial confession, if
voluntary and true and made in a fit
state of mind, can be relied upon by the
court. The confession will have to be
proved like any other fact. The value of
the evidence as to confession, like any
other evidence, depends upon the
veracity of the witness to whom it has
been made.”
The Court further expressed the view that: (SCC p.
192, para 19)
“19. … Such a confession can be relied
upon and conviction can be founded
thereon if the evidence about the
confession comes from the mouth of
witnesses who appear to be unbiased,
not even remotely inimical to the
accused, and in respect of whom
nothing is brought out which may tend
to indicate that he may have a motive
of attributing an untruthful statement
to the accused….”
60. In Aloke Nath Dutta v. State of W.B. [(2007) 12
SCC 230 : (2008) 2 SCC (Cri) 264] , the Court,
while holding that reliance on extra-judicial
confession by the lower courts in absence of other
corroborating material, was unjustified, observed:
(SCC pp. 265-66, paras 87 & 89)
“87. Confession ordinarily is admissible
in evidence. It is a relevant fact. It can
be acted upon. Confession may under
certain circumstances and subject to
law laid down by the superior judiciary
from time to time form the basis for
conviction. It is, however, trite that for
the said purpose the court has to satisfy
itself in regard to: (i) voluntariness of the
confession; (ii) truthfulness of the
confession; (iii) corroboration.
89. A detailed confession which would
otherwise be within the special
knowledge of the accused may itself be
not sufficient to raise a presumption
that confession is a truthful one. Main
features of a confession are required to
be verified. If it is not done, no
conviction can be based only on the sole
basis thereof.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1635 OF 2010
PRITINDER SINGH @ LOVELY Vs THE STATE OF PUNJAB
Author: B.R. GAVAI, J.
Dated: JULY 05, 2023.
1. These appeals challenge the judgment and order of the
High Court of Punjab and Haryana, dated 4th February 2010,
in Criminal Appeal No. 430-DB of 2001, upholding the
conviction and sentence imposed upon the accused –
appellants herein by the Additional Sessions Judge, Bathinda
(hereinafter referred to as “Trial Court”), for the offence
punishable under Section 302 read with Section 34 of the
Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
2. The case of the prosecution in brief is as follows:-
2.1 One Harbhajan Singh, a resident of Naga Mahantanwala
Dera, had solemnized two marriages, the first with one
Sukhwinder Kaur and the second with the accused Manjit
Kaur. His first wife bore him four children, complainant
Tapinder Singh, deceased Ravinder Singh, and two daughters,
both of whom are married. His second wife also bore him two
children, namely Navdeep Kaur and Jaswinder Kaur.
2.2 Harbhajan Singh, according to the complainant, had a
strained relationship with his first wife. The complainant
Tapinder Singh had migrated to the United States of America
in the year 1990, and his mother Sukhwinder Kaur had also
followed him in the year 1994. It is pertinent to note that his
brother Ravinder Singh remained in India, residing in village
Jawadi close to Naga Mahantanwala Dera, where his father
Harbhajan Singh was residing with his step mother, accused
Manjit Kaur.
2.3 A year and a half prior to the occurrence of the incident,
Tapinder Singh had returned to the village. It is alleged by him
that two days prior to the date of the incident, i.e. on 1st
September 1998, a dispute arose between Ravinder Singh and
Manjit Kaur, on account of her allegedly deficient moral
character. Ravinder Singh had beaten Manjit Kaur during this
incident, whereafter Manjit Kaur had allegedly threatened
Ravinder Singh that he would not survive.
2.4 Two days later, i.e. on 3rd September 1998, accused
Manjit Kaur along with one Pritinder Singh, alias Lovely,
accused - appellant herein, came in a car bearing Registration
No. HR 21 7778 and took Ravinder Singh in the said car on
the pretext of purchasing shoes. Pertinently, Tapinder Singh
was also present in the house at this time and allegedly
noticed that accused Manjit Kaur was carrying her 12 bore
double barrel licensed gun in the car.
2.5 When the deceased Ravinder Singh did not return that
evening, suspicion arose in the mind of Tapinder Singh and
on the very next day, he along with one Gurdeep Singh, son
of Gurmit Singh, went to Naga Mahantanwala Dera in search
of the deceased. The Mahant of the Dera told them that the
three individuals, i.e. two accused and the deceased, had
come in a car the previous night at around 9:30 PM. While
both the appellants had their meals, Ravinder did not. The
Mahant also informed Tapinder Singh that Ravinder Singh
and Manjit Kaur were arguing with each other and, while
leaving, had mentioned that they were going to the house of
one Surjit Singh, resident of village Kotha Guru, in their car.
2.6 Thereafter, Tapinder Singh set out for Surjit Singh’s
house and reached the bridge of the minor canal on the way
to Kotha Guru at about 8:30 AM, where they found the dead
body of the deceased Ravinder Singh, lying on the pavement
of the canal. The body bore two gunshot wounds. The car in
which the appellants and the deceased were travelling was
also standing there, with the aforementioned gun kept inside,
along with the cartridges. On the same day at around 10:15
AM, a complaint was filed on the basis of which an FIR was
registered at 11:00 AM and an inquest report was prepared. A
special report was subsequently received by the Magistrate on
the same day at 2:15 PM. On the very same day, both the
accused-appellants herein were apprehended and arrested
and subjected to medical examination by the Medical Officer
of Primary Health Center Bhagta Bhai Ke at 8:45 PM.
2.7 The postmortem report stated the cause of death to be
shock, haemorrhage and injury to vital organs, with the two
wounds confirmed to be caused by a fire arm. The report of
the Forensic Science Laboratory further stated that, of the two
cartridges found in the car, one had been shot from the right
barrel of the 12 bore double barrel licenced gun, while the
other had been shot from the left barrel of the same weapon.
2.8 On completion of the investigation, a chargesheet was
filed before the Judicial Magistrate Ist Class, Phul, who, vide
order dated 21st December 1998, committed the case to the
Trial Court. The Trial Court framed charges against the two
accused - appellants herein.
2.9 At the conclusion of the trial, relying on the last seen
theory, the chain of circumstantial evidence being complete,
and the extra-judicial confession made by the accused –
appellants herein that they had killed deceased Ravinder
Singh before PW-2 – Mal Singh, the Ex-Sarpanch of village
Maluka, the Trial Court, vide judgment and order dated 10th
July 2001, convicted the two accused – appellants herein,
under Section 302 read with Section 34 of the IPC and
sentenced them to undergo life imprisonment with a fine of
Rs. 1000/- payable by each accused.
2.10 Appeals were preferred by both the accused - appellants
herein before the High Court in Criminal Appeal No. 430-DB
of 2001, challenging their conviction and sentence. A revision
application, being Criminal Revision No. 347 of 2002, was also
filed, by the complainant Tapinder Singh, seeking
enhancement of sentence awarded by the Trial Court. Both
the Criminal Appeal and the Revision Application were
dismissed by the High Court vide the impugned judgment and
order dated 4th February 2010, thereby affirming the
conviction and sentence imposed upon the accused -
appellants herein by the Trial Court.
3. Hence the present appeals.
4. We have heard Mr. Keshavam Chaudhri and Ms.
Jaspreet Gogia, learned counsel appearing for the appellants
and Mr. Abhinav Bajaj, learned counsel appearing for the
respondent.
5. Undisputedly, the present case is a case which rests on
circumstantial evidence. The law with regard to conviction in
the case of circumstantial evidence is very well crystalised in
the case of Sharad Birdhichand Sarda v. State of
Maharashtra .(1984) 4 SCC 116
6. We may gainfully refer to the following observations of
this Court in the case of Sharad Birdhichand Sarda
(supra):
“153. A close analysis of this decision would show
that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should
be fully established.
It may be noted here that this Court indicated that
the circumstances concerned “must or should”
and not “may be” established. There is not only a
grammatical but a legal distinction between “may
be 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]
“Certainly, it is a primary principle that
the accused must be and not
merely may be guilty before a court can
convict and the mental distance
between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure
conclusions.”
(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.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case
based on circumstantial evidence.”
7. It can thus be seen that this Court has held that the
circumstances from which the conclusion of guilt is to be
drawn should be fully established. It has been held that the
circumstances concerned “must or should” and not “may be”
established. It has been held that there is not only a
grammatical but a legal distinction between “may be proved”
and “must be or should be proved”. It has been held that 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. It has been held that the circumstances
should be of a conclusive nature and tendency and they
should exclude every possible hypothesis except the one
sought to be proved, and that there must be a chain of
evidence so complete so 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.
8. It is a settled principle of law that however strong a
suspicion may be, it cannot take place of a proof beyond
reasonable doubt. In the light of these guiding principles, we
will have to consider the present case.
9. The prosecution case mainly rests on the testimony of
Mal Singh (PW-2), ex-Sarpanch of village Maluka insofar as
extra-judicial confession is concerned. Insofar as the last
seen theory is concerned, the prosecution relies on the
evidence of complainant Tapinder Singh (PW-3), step-son of
appellant Manjit Kaur and the statement of Jagtar Singh (PW-
9). The evidence of Dr. Rakesh Kumar Goel (PW-5), Medical
Expert who has conducted the autopsy and SI Amritpal Singh
(PW-11) would also be relevant.
10. Mal Singh (PW-2), ex-Sarpanch of village Maluka has
stated that on 4th September 1998, appellants Manjit Kaur
and Pritinder Singh @ Lovely had come to him in his village.
He stated that both were nervous at that time. He further
stated that appellant Manjit Kaur took him on one side and
told him that Ravinder Singh, son of Harbhajan Singh was
killed by them as he suspected that she was carrying on illicit
relations with persons who used to come to her.
11. It is relevant to note that the village Jawadi where PW-2
resides is 100 kms. away from the village of the appellants
and deceased. It is further to be noted that his evidence is full
of omissions and contradictions. Apart from that, he has
admitted in this evidence that the IO Amritpal Singh (PW-11)
was known to him for the last 4-5 years. In his evidence, PW-
2 has clearly admitted that though he had a telephone in his
house which was in a working condition, he neither informed
the family members of the deceased nor the police about the
said extra-judicial confession. PW-2 further admitted that he
did not convey any information of the said extra-judicial
confession to the SHO, though he was known to him. PW-2
further admitted that one Mr. Gurcharan Singh was the
Sarpanch of his village in those days. However, he did not ask
the appellants to go and meet him.
12. The law with regard to extra-judicial confession has been
succinctly discussed in the case of Munna Kumar Upadhyay
alias Munna Upadhyaya v. State of Andhra Pradesh
through Public Prosecutor, Hyderabad, Andhra Pradesh2,
wherein this Court has also referred to its earlier judgments,
which read thus:
“56. This Court has had the occasion to discuss
the effect of extra-judicial confessions in a number
of decisions. In Balwinder Singh v. State of
Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri)
59] this Court stated the principle that: (SCC p.
265, para 10)
“10. An extra-judicial confession by its
very nature is rather a weak type of
evidence and requires appreciation with
a great deal of care and caution. Where
an extra-judicial confession is
surrounded by suspicious
circumstances, its credibility becomes
doubtful and it loses its importance.”
57. In Pakkirisamy v. State of T.N. [(1997) 8 SCC
158 : 1997 SCC (Cri) 1249] the Court held that:
(SCC p. 162, para 8)
“8. … It is well settled that it is a rule of
caution where the court would generally
look for an independent reliable
corroboration before placing any
reliance upon such extra-judicial
confession.”
58. Again, in Kavita v. State of T.N. [(1998) 6 SCC
108 : 1998 SCC (Cri) 1421] the Court stated the
dictum that: (SCC p. 109, para 4)
2 (2012) 6 SCC 174
“4. There is no doubt that convictions
can be based on extra-judicial
confession but it is well settled that in
the very nature of things, it is a weak
piece of evidence. It is to be proved just
like any other fact and the value thereof
depends upon the veracity of the
witness to whom it is made.”
59. While explaining the dimensions of the
principles governing the admissibility and
evidentiary value of an extra-judicial confession,
this Court in State of Rajasthan v. Raja
Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965]
stated the principle that: (SCC p. 192, para 19)
“19. An extra-judicial confession, if
voluntary and true and made in a fit
state of mind, can be relied upon by the
court. The confession will have to be
proved like any other fact. The value of
the evidence as to confession, like any
other evidence, depends upon the
veracity of the witness to whom it has
been made.”
The Court further expressed the view that: (SCC p.
192, para 19)
“19. … Such a confession can be relied
upon and conviction can be founded
thereon if the evidence about the
confession comes from the mouth of
witnesses who appear to be unbiased,
not even remotely inimical to the
accused, and in respect of whom
nothing is brought out which may tend
to indicate that he may have a motive
of attributing an untruthful statement
to the accused….”
60. In Aloke Nath Dutta v. State of W.B. [(2007) 12
SCC 230 : (2008) 2 SCC (Cri) 264] , the Court,
while holding that reliance on extra-judicial
confession by the lower courts in absence of other
corroborating material, was unjustified, observed:
(SCC pp. 265-66, paras 87 & 89)
“87. Confession ordinarily is admissible
in evidence. It is a relevant fact. It can
be acted upon. Confession may under
certain circumstances and subject to
law laid down by the superior judiciary
from time to time form the basis for
conviction. It is, however, trite that for
the said purpose the court has to satisfy
itself in regard to: (i) voluntariness of the
confession; (ii) truthfulness of the
confession; (iii) corroboration.
***
89. A detailed confession which would
otherwise be within the special
knowledge of the accused may itself be
not sufficient to raise a presumption
that confession is a truthful one. Main
features of a confession are required to
be verified. If it is not done, no
conviction can be based only on the sole
basis thereof.”
61. Accepting the admissibility of the extrajudicial
confession, the Court in Sansar
Chand v. State of Rajasthan [(2010) 10 SCC 604 :
(2011) 1 SCC (Cri) 79] held that: (SCC p. 611,
paras 29-30)
“29. There is no absolute rule that an
extra-judicial confession can never be
the basis of a conviction, although
ordinarily an extra-judicial confession
should be corroborated by some other
material. [Vide Thimma and Thimma
Raju v. State of Mysore [(1970) 2 SCC
105 : 1970 SCC (Cri) 320] , Mulk
Raj v. State of U.P. [AIR 1959 SC 902 :
1959 Cri LJ 1219]
, Sivakumar v. State [(2006) 1 SCC 714
: (2006) 1 SCC (Cri) 470] (SCC paras 40
14
and 41), Shiva Karam Payaswami
Tewari v. State of Maharashtra [(2009)
11 SCC 262 : (2009) 3 SCC (Cri) 1320]
and Mohd. Azad v. State of W.B. [(2008)
15 SCC 449 : (2009) 3 SCC (Cri) 1082] ]
30. In the present case, the extrajudicial
confession by Balwan has been
referred to in the judgments of the
learned Magistrate and the Special
Judge, and it has been corroborated by
the other material on record. We are
satisfied that the confession was
voluntary and was not the result of
inducement, threat or promise as
contemplated by Section 24 of the
Evidence Act, 1872.”
62. Dealing with the situation of retraction from
the extra-judicial confession made by an accused,
the Court in Rameshbhai Chandubhai
Rathod v. State of Gujarat [(2009) 5 SCC 740 :
(2009) 2 SCC (Cri) 881] held as under: (SCC pp.
772-73, para 53)
“53. It appears therefore, that the
appellant has retracted his confession.
When an extra-judicial confession is
retracted by an accused, there is no
inflexible rule that the court must
invariably accept the retraction. But at
the same time it is unsafe for the court
to rely on the retracted confession,
unless, the court on a consideration of
the entire evidence comes to a definite
conclusion that the retracted confession
is true.”
63. Extra-judicial confession must be established
to be true and made voluntarily and in a fit state
of mind. The words of the witnesses must be clear,
unambiguous and should clearly convey that the
accused is the perpetrator of the crime. The extrajudicial
confession can be accepted and can be the
basis of conviction, if it passes the test of
credibility. The extra-judicial confession should
inspire confidence and the court should find out
whether there are other cogent circumstances on
record to support it. [Ref. Sk. Yusuf v. State of
W.B. [(2011) 11 SCC 754 : (2011) 3 SCC (Cri) 620]
(SCC pp. 762-63, para 28) and Pancho v. State of
Haryana [(2011) 10 SCC 165 : (2012) 1 SCC (Cri)
223] .]”
13. From the evidence of PW-2, we find that it cannot be said
that the extra-judicial confession is one which could be found
to be credible. There appears to be no reason as to why the
accused persons would go 100 kms. away and confess to him.
Apart from that, his conduct also appears to be unnatural.
Though IO Amritpal Singh (PW-11) was known to him and the
telephone which was installed in his house was in a working
condition, he did not find it necessary to inform him through
telephone. We are, therefore, of the considered view that the
courts below have erred in relying on the extra-judicial
confession made to PW-2.
14. That leaves with us another circumstantial evidence, i.e.
the accused was last seen in the company of the deceased and
the deceased was found dead shortly thereafter. In this
respect, the prosecution relies on the evidence of complainant
Tapinder Singh (PW-3) and Jagtar Singh (PW-9). PW-3 is the
step-son of appellant Manjit Kaur. He has himself admitted
in his evidence that the relations between him and appellant
Manjit Kaur were strained. As per his version, there used to
be a quarrel between Ravinder Singh and appellant Manjit
Kaur. He has stated that Ravinder Singh used to give beatings
to Manjit Kaur. He has further stated in his evidence that
Manjit Kaur had told his brother that, “he has not done good
thing to her and that he will not survive any longer.” In the
background of this version, his statement that on 3rd
September 1998, when he was present in his house, appellant
Pritinder Singh came in a car and took his brother Ravinder
Singh along with Manjit Kaur on the pretext of going to Bhagta
to purchase shoes appears to be improbable. It is his further
version that appellant Manjit Kaur also took her gun with her.
15. He stated that since they did not return, it raised a
suspicion in his mind. He, therefore, along with Gurdeep
Singh, went in search of the deceased Ravinder Singh. They
went to the Dera at village Maluka where the Mahant of the
Dera told them that Manjit Kaur and Pritinder Singh had
come there at around 09.30 PM. Thereafter, he stated that
the Mahant told them that the appellants and the deceased
had left the Dera saying that they had to go to the house of
Surjit Singh. Then the complainant and Gurdeep Singh
started for the house of Surjit Singh and, when they reached
the bridge of the minor canal at about 08.30 AM, they saw the
dead body of his brother on the pavement of the minor canal.
He further stated that the body of his brother bore two gunshots.
The car was also standing there. The gun was lying in
the car along with a belt containing 7 cartridges. Thereafter,
when he and Gurdeep Singh were going to the Police Station
to lodge the report, they found a police party led by SI Amritpal
Singh (PW-11) near the bus stand of V. Guruka Kotha, to
whom he narrated the entire incident to, then and there. As
already stated hereinabove, the relations between the
appellant Manjit Kaur and this witness are strained. As such,
the testimony of this witness, being an interested witness, will
have to be scrutinized with greater caution and
circumspection.
16. It appears to be improbable that, when appellant Manjit
Kaur had herself threatened the deceased that he would no
longer be alive, a real brother would permit the deceased to
accompany her and another accused and, that too, when the
accused was carrying a gun with her. We find that the
evidence of this witness will have to be taken with a pinch of
salt.
17. Another witness supposedly giving credence to the last
seen theory is Jagtar Singh (PW-9), son of Jagrup Singh.
According to this witness, on 3rd September 1998, the accused
along with deceased Ravinder Singh had come to the Dera
when he had gone to visit there. He stated that when Ravinder
Singh went to urinate, Manjit Kaur exhorted co-accused
Pritinder Singh by saying that Ravinder Singh was alone and
he should be done away with. PW-9 stated that, thereafter,
the accused took meals in the Lungar there and went out.
18. The cross-examination of PW-9 shows that, though the
incident occurred on 3rd September 1998, his statement was
recorded on 10th September 1998. His evidence is full of
contradictions and omissions. The admission in the crossexamination
itself speaks volumes of his high credentials. He
has admitted that he, along with other accused, had been
convicted for the offence under Section 307 of the IPC and had
been sentenced to life imprisonment by the trial court, but
had, however, been acquitted by the High Court. He has
further admitted that he had remained in jail for about 4 years
in the murder case of one Gursewak Singh.
19. Though PW-9 has stated that on 3rd September 1998,
accused Manjit Kaur had exhorted co-accused Pritinder Singh
that Ravinder Singh was alone and he should be done away
with, when the death of the deceased had occurred on the very
next day, he did not find it necessary to inform anyone about
it, including the police, till he was summoned to the Police
Station on 10th September 1998.
20. It is to be noted that though the dead body of the
deceased was found on 4th September 1998, the statement of
Mal Singh (PW-2) to whom the alleged extra-judicial
confession was made, was recorded on 9th September 1998.
SI Amritpal Singh (PW-11) has admitted in his examination
that Mal Singh (PW-2) was known to him. He has further
stated that he did not know in how many cases of his Police
Station Mal Singh was cited as witness. It is further to be
noted that the statement of Jagtar Singh (PW-9), as already
stated hereinabove, was recorded on 10th September 1998.
21. Amritpal Singh (PW-11) has also admitted in his
evidence that though the father of Ravinder Singh was alive in
those days, he did not record his statement by visiting his
village. PW-11 further admitted that he also did not visit the
house of the deceased Ravinder Singh to collect any evidence
of motive or him leaving his house before the occurrence.
22. We find that the conviction on the basis of such evidence
cannot be sustained. Apart from that, it is to be noted that
even according to PW-11, the gun which was recovered from
the car had two empty cartridges (Ex. P10 and P11).
Furthermore, the evidence of Dr. Rakesh Kumar Goel (PW-5),
who had conducted the post-mortem of the deceased, would
show that there was no external exit wound, and wad and
pellets were preserved and sealed. It is to be noted that apart
from not collecting any evidence as to whether the said gun
belonged to the appellant Manjit Kaur, even the Ballistic
Expert has not been examined to show that the wad and
pellets were fired from the empty cartridges (Ex. P10 and P11).
23. It will be relevant to refer to the following observations of
this Court in the case of Sukhwant Singh v. State of
Punjab (1995) 3 SCC 367.
“21. ………It hardly needs to be emphasised that
in cases where injuries are caused by firearms,
the opinion of the ballistic expert is of a
considerable importance where both the firearm
and the crime cartridge are recovered during the
investigation to connect an accused with the
crime. Failure to produce the expert opinion
before the trial court in such cases affects the
creditworthiness of the prosecution case to a great
extent.”
24. No doubt that this case has been recently distinguished
by a three-Judges Bench of this Court in the case of Gulab v.
State of Uttar Pradesh4, relying on the earlier judgments of
this Court in the cases of Gurucharan Singh v. State of
Punjab5 and State of Punjab v. Jugraj Singh6.
25. However, it is to be noted that the case of Jugraj Singh
(supra) was a case of direct evidence, where there was
evidence of two eye-witnesses. The present case is a case
based on circumstantial evidence. In view of the serious doubt
with regard to the credibility of the witnesses on the issue of
extra-judicial confession and last seen theory, the failure to
examine Ballistic Expert would, in our opinion, be a glaring
defect in the prosecution case. We are, therefore, of the
considered view that the prosecution has failed to prove the
4 (2022) 12 SCC 677
5 [1963] 3 SCR 585
6 (2002) 3 SCC 234
case beyond reasonable doubt and, as such, the accused are
entitled to benefit of doubt.
26. In the result, the appeals are allowed. The impugned
judgment and order of the High Court dated 4th February 2010
and the judgment of the Trial Court dated 10th July 2001 are
quashed and set aside.
27. The bail bonds of the appellants shall stand discharged.
Pending application(s), if any, shall stand disposed.
…….........................J.
[B.R. GAVAI]
…….........................J.
[SANJAY KAROL]
NEW DELHI;
JULY 05, 2023.
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