LexASHWANI KUMAR @ ASHU & ANR. versus STATE OF PUNJAB
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[2015] 3 S.C.R. 1039 ASHWANI KUMAR @ ASHU & ANR. A v. STATE OF PUNJAB (Criminal Appeal Nos. 1041-1042 of 2008) B APRIL 16, 2015 [MADAN B. LOKUR AND UDAY UMESH LALIT, JJ.] Penal Code, 1860 - ss. 36413021307 fW s. 120 B - C Murder and kidnapping - Prosecution case that accused hatched a conspiracy and committed murder of the victim- wife and caused injuries to the prosecution witness- · husband - Allegation that the marriage of the parties was 0 not to the liking of the mother and maternal uncle of the victim - Trial court convicted seven out of the eleven charged and acquitted four of them - High Court acquitted three more, however, upheld the order of conviction and sentence of the appellants-AS, AK, JS and OS uls. 3021 E 3641307 rw s. 120 B - On appeal, held: All the circumstances stand proved and clearly point in the direction of the guilt of AS and AK and lend complete support to the testimony of and identification by the husband - Thus, the courts below justified in finding AS F .and AK guilty of the offences u/ss. 3641307 and 302 - As regards accused JS, in view of the evidence on record and the extra judicial confession that parents of the victim had given money through JS, the courts below justified in finding JS guilty of the offences u/ss. 36413021367 read with s. G 1208 - As regards OS apart from telephonic conversations, nothing on record by the prosecution, thus, by giving benefit of doubt, he is acquitted. 1039 H 1040 SUPREME COURT REPORTS (2015] 3 S.C.R. A Doctrines/Principles - Principle of issue estoppel - Explanation of - Held: Principle regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to up-set a finding of fact recorded on the previous occasion and mandates that the B finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings - It makes it impermissible to lead any such evidence at a subsequent stage or occasion. C Dismissing Crl A Nos.1041-1043 of 2008 and allowing Crl A No.1814 of 2009, the Court HELD: 1.1 The evidence of PW-15 regarding the occurrence that took place was fully supported by the o medical evidenc~ on record. His assertion regarding the pla"e of incident and the manner in which the occurrence took place was also supported by another witness PW-14. Though said witness failed to identify the assailants as he had watched the incident from a E distance, he lends complete support to PW-15 as regards other material particulars. Considering the nature of injuries suffered by him and the fact that J- victim was forcibly taken by the assailants the entire incident could certainly have afforded sufficient time F and opportunity to PW-15 to recollect and identify the assailants. The law is well-settled that if the witness is trustworthy and reliable, the mere fact that no test identification parade was conducted would not be a reason to discard the evidence of the witness. The G prosecution had made .the witness available for test identification but the concerned accused had refused to participate in the test. Though there was no reason for such refusal and adverse inference could be drawn H against the accused, still other corroborating material ASHWANI KUMAR @ASHU v. STATE OF PUNJAB 1041 is looked for which is available in the form of extra A judicial confession as deposed to by PW-7 and the incident which had happened at the dhaba as spoken by PW-5 and PW-6. · Photograph of J was recovered pursuant to disclosure statement by AS is another circumstance. That photograph was recovered from . B Farm which was under the control of AK. The description of J in Gurumukhi on the back side of the photograph was crucial. Refusal on part of AS to give his specimen hand writing must lead to· adverse inference against him. The recovery of weapon, namely, C kirpan which according to the doctor could have resulted in the injuries suffered by PW-15 and J and the blood-stained seat cover were other circumstances lending complete corroboration. The communication by 0 AS and AK with the number in Canada which itself was the source for the fax-message was another circumstance. All these circumstances stand proved and clearly point in the direction of the guilt of AS and AK and additionally lend complete support to the E testimony of and identification by PW 15. The courts below were therefore, perfectly justified in finding AS
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