PAWAN KUMAR versus STATE OF HARYANA

Citation: [2003] SUPP. 1 S.C.R. 710 · Decided: 23-07-2003 · Supreme Court of India · Bench: B.N. AGRAWAL, B.N. SRIKRISHNA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
PA WAN KUMAR 
V. 
STATEOFHARYANA 
JULY 23, 2003 
B 
[B.N. AGRA WAL AND B.N. SRIKRISHNA, JJ.] 
Indian Penal Code, 1860: 
S. 302 rlw s. 34-Conviction based on circumstantial evidence-
C Propriety of-A taxi driver found dead in a hotel room-Two persons who 
had hired the taxi and were alleged to have stayed in the hotel room along 
with the driver were prosecuted for the offence-The prosecution relied upon 
circumstantial evidence that the accused hired the taxi and stayed in the 
hotel room with the driver for a night and left on the following day early in 
D the morning-Later, when the room was opened the driver was found dead 
in the room-Trial court convicted both the accused u/s 302 rlw s. 34 and 
sentenced them to imprisonment for life-High Court confirmed the conviction 
and the sentence-Appeal by one of the accused-Held, though it was proved 
that the accused hired the taxi, but it does not show complicity of the accused 
with the crime-There is no evidence to establish the circumstance that the 
E two accused along with the driver stayed in the Hotel room during the 
night-The solitary witness to prove this circumstance was not examined-
The statement of owner of the hotel, who was examined as a prosecution 
witness, merely shows that he came to know of these facts from the waiter, 
and as such is a hearsay evidence-The presence of accused persons in the 
F hotel on the fatefal night could have been established by examination of the 
waiter who has been withheld for the reasons best known to the prosecution-
As regards documentary evidence, the entry in the register of the hotel 
alleged to have been made by the accused themselves has been exhibited on 
the basis of statement of the hotel owner, but the entry was stated to have 
been made in presence of the waiter who was not examined-Thus the entry 
G having not been legally proved is not admissible-The letter alleged to have 
been written by the appellant to his mother confessing his guilt, does not 
indicate any admission much less a confession-Besides, it was stated to 
have been fabricated-In such an event it was incumbent upon the prosecution 
to prove the handwriting and the signature of the appellant by sending it 
H 
710 
PAWANKUMAR v. STATEOFHARYANA 
711 
to handwriting expert, but this was not done-Prosecution has failed to A 
prove the circumstances alleged against the· accused persons, except that 
they hired a taxi, which alone cannot form the basis for conviction-Conviction 
of the appellant as also the non appealing accused set aside-Circumstantial 
evidence-Proving of-Documentary evidence-Admissibility of-Constitution 
of India-Article 136. 
Constitution of India, 1950: 
B 
Articles 21, 136-Exercise of power under Article 136 suo motu in 
favour of non-appealing accused-Two persons convicted by trial court for 
committing offence punishable uls 302 r/w s. 34 !PC-High Court upholding 
the verdict-Appeal by one of the accused-Held, apart from the salutary C 
powers exercisable by the court under Article 142 of the Constitution for 
doing complete justice to the parties, the powers under Article 136 of the 
Constitution can be exercised by it in favour of party even suo motu when 
the Court is satisfied that compelling grounds for its exercise exist but it 
should be used very sparingly with caution and circumspection inasmuch as D 
only in rarest of rare cases-One of such grounds may be as it exist, like the 
present case, where this Court while considering appeal of one of the accused 
comes to the conclusion that conviction of appealing as well as non-appealing 
accused both was unwarranted-Upon such conclusion arrived at by the 
apex court of the land, further detention of non-appealing accused by virtue 
of the judgment rendered by the High Court upholding his conviction, being E 
without any authority of law, infringes upon right to personal liberty 
guaranteed to the citizen as enshrined under Article 21 of the Constitulion-
ln cases, akin to the present one, where there is either a flagrant violation 
of mandatory provision of any statute or any provision of the Constitutio11. 
it is not that this Court has a discretion to exercise its suo motu power but F 
a duty is erijoined upon it to exercise the same by setting right the illegality 
in the judgment of the High Court as it is well settled that illegality should 
not be allowed to be perpetuated and failure by this Court to interfere with 
the same would amount to allowing the illega

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