LexSTATE OF PUNJAB versus KEWAL KRISHAN
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A B C D E F G H 1 STATE OF PUNJAB v. KEWAL KRISHAN (Criminal Appeal No. 2128 of 2014) JUNE 21, 2023 [B. V. NAGARATHNA AND MANOJ MISRA, JJ.] Penal Code, 1860 – s. 302 – Acquittal confirmed – Prosecution case that the deceased was last seen alive in his own house in the company of the accused at about 7.00 p.m. on 10.12.1998 – PW-6, nephew of the deceased discovered body of deceased on 12.12.1998 – FIR was registered – Name of the accused did not surface on the record till 25.12.1998 – PW-2, the sole witness of the last seen circumstance, in his deposition in court, stated that he had expressed his suspicion in respect of accused’s involvement to the police on 13.12.1998 – It was also alleged that accused made an extra-judicial confession before PW-3 – Accused made a disclosure to the police regarding knife used in the crime, which led to its recovery – Trial Court convicted and sentenced the respondent u/s. 302 – However, the High Court acquitted him – On appeal, held: The High Court opined that if PW-2 was aware of the last seen circumstance and had made such a disclosure, there was no reason for the police not to act against the accused till 25.12.1998 – Therefore, the statement of PW-2 in respect of imparting knowledge of the last seen circumstance appeared doubtful and it appeared that the witness was set up to create link evidence – The alleged date and time when the deceased was last seen alive was at quite a distance from the date and time when the deceased was found dead – There was no evidence as to when the accused left the house and that no one else could have entered the house in the interregnum, other intervening circumstances including hand of some third person in the crime was not ruled out by the prosecution evidence – Recovery of the knife was denied by the accused and there was no serologist report to connect it with the crime – Insofar as the evidence of extra judicial confession made by the accused is concerned, there was no evidence to demonstrate that the accused had any prior relations with PW-3 or that the accused hoped for, or sought, any help from PW-3 and, therefore, made the confession to him – Notably, [2023] 10 S.C.R. 1 : 2023 INSC 583 1 A B C D E F G H 2 SUPREME COURT REPORTS [2023] 10 S.C.R. the accused denied making any such confession – The incriminating circumstances were not proved beyond reasonable doubt and otherwise also the circumstance of last seen was inconclusive, the High Court was justified in setting aside the order of conviction recorded by the Trial Court. Evidence – Circumstantial evidence – Held: It is trite law that to convict an accused on the basis of circumstantial evidence, the prosecution must prove beyond reasonable doubt each of the incriminating circumstances on which it proposes to rely; the circumstance(s) relied upon must be of a definite tendency unerringly pointing towards accused’s guilt and must form a chain so far complete that there is no escape from the conclusion that within all human probability it is the accused and no one else who had committed the crime and they (it) must exclude all other hypothesis inconsistent with his guilt and consistent with his innocence. Evidence Act, 1872 – s. 106 – Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt – It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, the question arises of considering facts of which the burden of proof would lie upon the accused. State of U.P. v. Sahai (1982) 1 SCC 352; State of M.P. v. Paltan Mallah (2005) 3 SCC 169 : [2005] 1 SCR 710; Basheera Begam v. Mohd. Ibrahim (2020) 11 SCC 174 : [2020] 3 SCR 562; Shivaji Chintappa Patil v. State of Maharashtra (2021) 5 SCC 626 – relied on. Case Law Reference [2005] 1 SCR 710 relied on Para 14 [2020] 3 SCR 562 relied on Para 15 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2128 of 2014. From the Judgment and Order dated 01.05.2012 of the High Court of Punjab & Haryana at Chandigarh in CRLA No. 372 of 2002. Mohit Siwach, Karan Sharma, Advs. for the Appellant. A B C D E F G H 3 The following Judgment of the Court was delivered: JUDGMENT 1. Counsel for the appellant is present. None has appeared for the respondent. The office has submitted a report that notice has been served on the sole respondent, yet no one has entered appearance on his behalf. 2. We ha
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