whether in a case of circumstantial evidence inability on the part of the prosecution to establish a motive is fatal to the prosecution case. We would think that while it is true that if the prosecution establishes a motive for the accused to commit a crime it will undoubtedly strengthen the prosecution version based on circumstantial evidence, but that is far cry from saying that the absence of a motive for the commission of the crime by the accused will irrespective of other material available before the court by way of circumstantial evidence be fatal to the prosecution. In such circumstances, on account of the circumstances which stand established by 20 evidence as discussed above, we find no merit in the appeal and same shall stand dismissed.


Hon’ble Mr. Justice K.M. Joseph

1
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1697 OF 2009
SUKHPAL SINGH …APPELLANT(S)
VERSUS
STATE OF PUNJAB …RESPONDENT(S)
JUDGMENT
K.M. JOSEPH, J.

  1. This appeal by special leave is directed
    against the judgment of the High Court
    dismissing the appeal filed by the appellant
    against his conviction under Section 302 of the
    2
    Indian Penal code (hereinafter referred to as
    the “IPC”) and sentencing to rigorous
    imprisonment for life.
  2. On 27/06/1993 upon discovery of an
    unidentified body near a canal and the case
    being registered and upon investigation being
    conducted the appellant along with another came
    to be charge sheeted and charged with the
    commission of offences under Section 302 read
    with Section 34 of the IPC. They were also
    charged with the offence under Section 201 of
    the IPC. Before the trial Court the prosecution
    examined PW1 to PW17. The appellant examined
    DW1 and DW2. The trial Court convicted the
    appellant while it acquitted the co-accused. As
    already noticed the High Court has affirmed the
    3
    conviction and sentence of the accusedappellant.
  3. We heard Ms. Aishwarya Bhati, learned
    Amicus Curiae and also learned counsel for the
    respondent-State.
  4. Learned Amicus Curiae contended before us
    that the case is based only on circumstantial
    evidence. She pointed out that there are three
    circumstances which were alleged against the
    appellant. Firstly, it is contended that the
    prosecution laid store by an alleged extra
    judicial confession made by the appellant to PW
    4 but she immediately pointed out that the said
    extra judicial confession has not been accepted
    either by the trial court or by the High Court.
    Secondly, it is pointed out that the courts have
    relied upon the theory of last seen. The theory
    4
    of last seen is sought to be proved through the
    evidence of PW7, PW8 and PW9. Thirdly, it is
    pointed out that the prosecution has sought to
    draw support from recovery of .38 caliber gun
    apart from cartridges. She would submit that no
    reliance can be placed upon the same. Lastly,
    she also contended that there is absolutely no
    motive for the appellant to commit the murder of
    the deceased. In a case of circumstantial
    evidence, motive assumes great significance.
    Absence of evidence of any motive with the
    appellant to do away with the deceased, is fatal
    to the prosecution case, runs the argument.
  5. Per contra, learned counsel for the State
    would submit that the circumstances formed a
    complete chain and unerringly point to the guilt
    of the appellant. It is further pointed out
    5
    that the van belonging to the deceased in which
    the accused were also seen last by the witnesses
    for the prosecution was recovered at the
    instance of the appellant. This is besides the
    forensic evidence available which would also
    establish that this is a case of the murder
    committed by none other than the appellant as
    the forensic report would show that the bullet
    which was recovered from the body of the
    deceased was fired from the gun recovered from
    the appellant. Recovery was of the gun and also
    empty cartridges besides live cartridges. An
    attempt is made also to establish that there was
    a fight between the deceased and the appellant
    going by the injuries noted in the post-mortem
    and this pointed to motive.
    6
  6. We would exclude the circumstance namely,
    the extra judicial confession which has not been
    given credence to by the courts below. We will
    thereafter examine firstly whether the
    prosecution has been able to establish the last
    seen theory. The case of last seen theory has
    been sought to be proved through the testimony
    of PW7, PW8 and PW9.
  7. P.W.7 is the brother in law of the
    deceased. He has deposed that the deceased was
    having a taxi and on 26.6.1993 he along with the
    deceased was present at the taxi stand. Then
    both the accused came there. They asked the
    deceased to take them in his taxi and he left
    with them. No doubt, in cross examination he
    does say that 4 or 5 taxis in addition to their
    two taxis were present at the taxi stand. He is
    7
    not able to give the names of other taxi drivers
    or the registered numbers of their vehicles. He
    had a separate taxi. There is nothing vital in
    his cross examination which could be said to
    demolish his examination-in-chief.
  8. P.W.8 would state that 2½ years or 3
    years ago when he reached village Thandewala, he
    found on the canal bank the van of the deceased
    where both the accused were sitting in the van.
    He was to go to Amritsar so he stopped the van.
    He stated that the registration number of the
    van was 3332. He stated he knew the deceased
    and both the accused. He further stated that
    the deceased was not present in the van. He
    asked the accused as to where the deceased was
    as he wanted to hire his taxi, thereupon the
    accused told him that they had some secret work
    8
    so they did not bring the deceased with them.
    He would say after 6 or 7 days he learnt that
    dead body of the deceased was recovered. He
    made a statement to the police. In cross
    examination he also says that he did not say
    before the police that he stopped the van as he
    was to engage the van to go for holy dip at
    Amritsar nor did he state to the police that he
    was to hire the van of the deceased. No doubt
    there may be minor contradictions but we think
    that his evidence has inspired the confidence of
    two courts. PW9 is an employee of the cooperative Bank as a gunman. He would say that
    on 26/06/1993 he came on a scooter and when he
    reached bus adda of village Jabelwali it started
    raining, he stopped there. The deceased came
    there in his van from Muktsar side. Both the
    accused were sitting in the van. On seeing him
    9
    deceased brought the van near him as he was his
    brother-in-law. He asked him to accompany but
    PW9 told him that he has scooter. However, it
    is deposed that the appellant asked the deceased
    to hurry up as he was getting late. Then the
    van left towards Kakapura. After the rain
    stopped, PW9 went in the same direction and he
    saw the van of the deceased turning downstream
    of the canal water of Rajasthan Canal. In cross
    examination he would say that the canal was at a
    distance of half kilometer from Jabelwali bus
    stand. Bus stand Jabelwali is at a distance of
    8 or 10 kilometers from Muktsar. He would say
    that his duty hours in the Bank is from 10.00
    a.m. to 5.00 p.m. as gunman. The van of the
    deceased he would say came to him at the bus
    stand at about 9 a.m.or 10 a.m.. He was at a
    distance of 10 to 15 killas from Jabelwali bus
    10
    stand when it started raining. He stood at the
    bus stand for about 15-20 minutes. He left the
    bus stand on scooter 5 to 7 minutes after the
    van left towards Kakapura. He would say that he
    did not know the relation except the appellant’s
    wife. It would be noticed that there is no
    suggestion in the cross examination however that
    he does not know the appellant or that he has
    never seen him before.
  9. The aforesaid evidence, in our opinion,
    which has been believed by the trial court as
    well as by the High Court, can be relied upon by
    us to conclude that the prosecution has
    established that the appellant was indeed last
    seen with the deceased before his death and
    recovery of the body. The appellant admittedly
    was working as a police officer. The next
    11
    circumstance which has been relied upon by the
    courts is the recovery of his service revolver –
    the gun along with empty cartridges and live
    cartridges. The evidence of PW15- officer would
    show that on 09.7.1993, the appellant was
    arrested along with co-accused. The Maruti van
    belonging to the deceased was also produced and
    the same was taken into possession in the
    presence of Gurdev Singh and Head Constable
    Surinder Singh. He has stated that the
    appellant was interrogated. He disclosed that
    he concealed .38 bore revolver along with 3 live
    cartridges and 2 empty cartridges and
    Rs.20,000/- cash in an iron box lying in his
    house and same was hidden. The statement was
    attested by Gurdev Singh (Sarpanch) and Surinder
    Singh. A .38 bore revolver, 2 empty cartridges
    and 3 live cartridges were recovered as per the
    12
    statement from an iron box from the store of his
    house. The key was taken out by him from the
    almirah by the appellant. The revolver and
    cartridges were sealed after making into
    parcels. They were taken into possession. A
    seal was prepared which is handed over after use
    to Gurdev Singh. It is also established from
    the statement of PW15, the investigating officer
    that after the post-mortem, a bullet was
    produced before him. No doubt, the bullet was
    recovered at the time of post-mortem on
    26.7.1993. The revolver was recovered on
    11.7.1993. In cross examination P.W.15 has
    spoken about sending the revolver and bullet for
    forensic examination. The report of the
    Forensic Science Laboratory is to the effect
    that the bullet which was marked as B1 has been
    fired from .38 bore revolver No.673. This
    13
    undoubtedly would establish that the bullet
    which resulted in the death of the deceased came
    from the revolver which was issued to the
    appellant.
  10. Learned counsel for the appellant in the
    light of this clearly incriminating circumstance
    drew our attention to the following statement
    given by the appellant in his statement under
    Section 313 Cr.P.C.
    “I am innocent. I have been falsely
    implicated. I was suspended by S.S.P.
    Faridkot on 3.5.1993 and was sent to
    Police Lines, Faridkot, where I remained
    present in the months of May and June
    1993 throughout. In May I deposited my
    revolver and ammunition, because of my
    suspension, in Police Lines, Faridkot.
    On 28.6.1993 vide report No.3 in the
    Daily Diary I was detailed on duty to go
    to the office of D.S.P. Moga, regarding
    departmental enquiry. When I returned
    14
    in the evening, police of P.S. Sadar
    Muktsar took me from the Police Lines.
    They also collected my revolver and
    ammunition from the officials of the
    Police Lines, Faridkot. I was detained
    for some days in illegal custody and my
    formal arrest was shown thereafter and
    recovery of revolver and ammunition was
    foisted against me. Revolver after
    firing in the police station was sent to
    Forensic Science Laboratory. Bullet was
    also foisted against me.”
  11. Apparently the version that is sought to
    be set up is that the appellant was under
    suspension, and therefore the appellant had
    surrendered his revolver and therefore the case
    of the recovery of the gun and that the fatal
    shot was fired from the gun should not be
    believed.
  12. There appears to be no evidence to show
    however that the appellant was actually placed
    15
    under suspension as is sought to be claimed by
    him in the questioning under Section 313. The
    appellant has also not been able to draw our
    attention to any evidence adduced by him to
    establish that he was in fact placed under
    suspension so as to prove that he had
    surrendered the gun at the police station prior
    to the date of the incident. It may be true
    that the investigating officer when questioned
    has stated that he does not know whether the
    officer was suspended. However, this was the
    state of the prosecution evidence. It was
    thereupon incumbent upon the appellant to
    establish the case through evidence which would
    certainly have been available had indeed been
    placed under suspension. In the absence of
    material to establish the case of suspension we
    are not inclined to disturb the concurrent
    16
    findings by the court which is based on evidence
    which establishes that there was a recovery of
    the gun along with 2 empty cartridges and 3 live
    cartridges on the statement given by the
    appellant. Furthermore, as already noticed, the
    evidence establishes that the bullet found in
    the body of the deceased was fired from the gun
    which is allotted to the appellant. That apart
    we have already found that there is ample
    evidence to show that the appellant was last
    seen with the deceased, again, a fact which is
    established on the basis of testimony of
    witnesses who have been found to be creditworthy
    by two courts. In an appeal maintained under
    leave under Section 136 this Court would not
    ordinarily go into the credibility of the
    witnesses whose testimony has inspired the
    confidence of the courts.
    17
  13. The evidence of three witnesses relating to
    last seen has been relied upon by two courts. It
    may be true that there may be certain minor
    contradictions. The credibility of witnesses is
    ordinarily not re-visited by this Court in an
    appeal by special leave. That apart the
    circumstance as to the recovery and what is most
    important the report of the forensic laboratory
    is clinching. The report of the forensic
    laboratory reads as follows:
    “One point .38 inch jacketed bullet
    marked B/1 contained in parcel ‘A’ has
    been fired from .38 inch revolver No.A673.”
  14. We are not inclined to place any reliance
    on appellant’s version that the gun was actually
    surrendered by him and making use of the gun, a
    shot was fired and he has been implicated
    18
    particularly as he has not proved that he has
    been placed under suspension. Furthermore, in
    fact, P.W.15 has denied the allegation that the
    bullet was sent after firing. The only
    inevitable conclusion we can reach is that the
    gun was recovered from him and the bullet which
    has been found to have caused the fatal injury
    to the deceased and which was recovered from the
    body of the deceased has been fired from the
    appellant’s gun.
  15. The last submission which we are called
    upon to deal with is that there is no motive
    established against the appellant for committing
    murder. It is undoubtedly true that the
    question of motive may assume significance in a
    prosecution case based on circumstantial
    19
    evidence. But the question is whether in a case
    of circumstantial evidence inability on the part
    of the prosecution to establish a motive is
    fatal to the prosecution case. We would think
    that while it is true that if the prosecution
    establishes a motive for the accused to commit a
    crime it will undoubtedly strengthen the
    prosecution version based on circumstantial
    evidence, but that is far cry from saying that
    the absence of a motive for the commission of
    the crime by the accused will irrespective of
    other material available before the court by way
    of circumstantial evidence be fatal to the
    prosecution. In such circumstances, on account
    of the circumstances which stand established by
    20
    evidence as discussed above, we find no merit in
    the appeal and same shall stand dismissed.
    ………………………………………….J.
    (A.M. Khanwilkar) ………………………………………………J.
    (K.M. Joseph)
    New Delhi;
    February 12, 2019