2. The aforesaid appeals and revision are instituted against the judgment dated 7.10.2015 and order dated 14.10.2015, rendered by learned Additiona
Sessions Judge, Amritsar, in Session Case No. 17302 of 2012. Appellants Sukhchain Singh alias Mintu, Kulwinder Singh alias Kinder, Sarabjit Kau
Prince and Harpreet Singh alias Happy were charged with and tried for the offence punishable under Sections 302, 201, 364-A, 120-B, 506, 148, 14
IPC. They were convicted and sentenced as under:-",,
Name of the
appellant","Under
Section",Imprisonment
1. Harpreet Singh
@ Happy",302 IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,364-A IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,120-B IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,201 IPC,"To undergo rigorous imprisonment for three years and to
pay a fine of Rs. 5,000/- and in default of payment of fine,
to further undergo rigorous imprisonment for three months.
,506 IPC,"To undergo rigorous imprisonment for three years and to
pay a fine of Rs. 5,000/- and in default of payment of fine,
to further undergo rigorous imprisonment for three months.
2. Kulwinder Singh
@ Kinder",302 IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,364-A IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,120-B IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,201 IPC,"To undergo rigorous imprisonment for three years and to
pay a fine of Rs. 5,000/- and in default of payment of fine,
to further undergo rigorous imprisonment for three months.
,506 IPC,"To undergo rigorous imprisonment for three years and to
pay a fine of Rs. 5,000/- and in default of payment of fine,
to further undergo rigorous imprisonment for three months.
3. Sukhchain Singh @
Mintu",302 IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,364-A IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,120-B IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,201 IPC,"To undergo rigorous imprisonment for three years and to pay
a fine of Rs. 5,000/- and in default of payment of fine, to
further undergo rigorous imprisonment for three months.
,506 IPC,"To undergo rigorous imprisonment for three years and to pay
a fine of Rs. 5,000/- and in default of payment of fine, to
further undergo rigorous imprisonment for three months.
4. Sarabjit Kaur,302 IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,364-A IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,120-B IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,201 IPC,"To undergo rigorous imprisonment for three years and to pay
a fine of Rs. 5,000/- and in default of payment of fine, to
further undergo rigorous imprisonment for three months.
,506 IPC,"To undergo rigorous imprisonment for three years and to pay
a fine of Rs. 5,000/- and in default of payment of fine, to
further undergo rigorous imprisonment for three months.
5. Prince,302 IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,364-A IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,120-B IPC,"To undergo imprisonment for life and to pay a fine of
Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months.
,201 IPC,"To undergo rigorous imprisonment for three years and to pay
a fine of Rs. 5,000/- and in default of payment of fine, to
further undergo rigorous imprisonment for three months.
,506 IPC,"To undergo rigorous imprisonment for three years and to pay
a fine of Rs. 5,000/- and in default of payment of fine, to
further undergo rigorous imprisonment for three months.
,,
lodged the report on 13.6.2012. He had not named any person in his statement, Ex.PA. He had not stated to the police in his statement, Ex.PA that his
brother Sanjiv Kumar had received a call on his mobile from another mobile number. He had also not recorded in Ex.PA that the person who had
called his brother had demanded a sum of Rs. 1 crore.",,
,,
the caller from Bittu Telecoms Fatahpur by furnishing fake documents. A separate FIR was also registered against him. He came to know that th
said mobile set was stolen by one Gholi son of Jaspal resident of Anngarh. He sold out the said mobile set to one Happy accused, who has given thi
mobile set to his brother-in-law namely Prince. The said mobile phone was further given by Prince to his brother-in-law namely Sukhchain Singh. A
separate FIR was registered in Police Station, Gate Hakima. On 21.6.2012, Vijay Kumar and Tarsem Singh PWs were joined in the investigatio
Their statements were recorded under Section 161 Cr.P.C. on the basis of which offences under Section 302/201 IPC were added. A diary wa
recovered from the possession of Sukhchain Singh. These numbers were mentioned in the diary. He took into possession the diary. On search o
accused Sukhchain Singh, one mobile phone make Soni Ericson double sim along with sim no. 98762-27345 and 96530-61033 was recovered. Thes
were taken into possession. He arrested accused Sukhchain Singh and Harpreet Singh. Accused Kulwinder Singh and Gagandeep Singh were als
arrested. On the personal search of accused Kulwinder Singh one mobile phone of Beetal of black colour, double sim containing sim no. 98140-79604
and 98727-26481 bearing separate dual IMEI numbers and one diary were recovered. These were taken into possession. Accused Sarabjit Kaur wa
also arrested. On 23.6.2012 accused Kulwinder Singh, Gagandeep Singh and Sarabjit Kaur were interrogated. Accused Kulwinder Singh revealed that
he had kept concealed the shirt of deceased Karan @ Sushant under the bushes in the area of bank of canal Bohru. Similarly, accused Gagandee
Singh disclosed that he took out a silver chain of deceased Karan at the time of occurrence. It was lying in an almirah in his residence. Accused
Sarabjit Kaur also made disclosure statement that she had kept concealed one comfort and one chunni used in the commission of crime behind the
almirah lying at her residence. Disclosure statements of accused Kulwinder Singh, Gagandeep Singh and Sarabjit Kaur are Ex.PW10/W, Ex.PW10
and Ex.PW10/Y. Accused Gagandeep Singh got recovered silver chain from his residence. Accused Sarabjit Kaur got recoveredc hunni from her
residence. Accused Kulwinder Singh got recovered one shirt of deceased of white and purple colour. Accused Prince was also arrested. Prince
revealed that he actively participated in the commission of offence. Auto rickshaw was taken into possession. Accused Harpreet Singh and Sukhchain
Singh were interrogated on 24.6.2012. Accused Harpreet Singh revealed that he had kept concealed a cricket bat of deceased at his residence
Accused Sukhchain Singh revealed that he had kept concealed one voile and one syringe used in the commission of offence. Accused Harpreet Sing
got recovered cricket bat and accused Sukhchain Singh got recovered one voile and one syringe. Rough site plan was prepared. Accused Harpree
Singh was also interrogated. He made disclosure statement, Ex.PW10/11, on the basis of which motorcycle was got recovered. In his cross
examination, he admitted that there was no mention of any number of auto rickshaw in the FIR. He also admitted that the alleged mobile was stole
mobile. Sahib Singh was found to be the owner of the mobile. He had lodged FIR about the theft of that mobile. He also admitted that the house o
Sarabjit Kaur was situated in residential area. No respectable person of the locality joined the police party at the time when the raid was conducted
Sarabjit Kaur was married and she had children. He also admitted that recovery memo did not bear the signature of Sarabjit Kaur. Recovery mem
was not attested by lady Head Constable Paramjit Kaur. Similarly, memo of disclosure statement , Ex.PW10/22 was also not attested by lady Hea
Constable Paramjit Kaur. He also admitted that place of recovery of shirt, got recovered by Kulwinder Singh, was thoroughfare but recovery was go
effected from the bushes. He did not join any independent witness at the time of going to the house of accused Kulwinder Singh.",,
23. Their Lordships of Hon'ble the Supreme Court in S.K. Yusuf vs State of West Bengal 2011 (11) Supreme Court Cases 754, have held that theory",,
of 'last seen together' comes into play, where time gap between point of time when deceased was last seen alive with accused and when deceased",,
was found dead, is so small that possibility of any person other than accused being author of crime becomes impossible. Para 21 of the judgment is",,
reproduced as under:-,,
“21. The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and,,
when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.â€,,
24. Their Lordships of Hon'ble the Supreme Court in Nizam and another vs State of Rajasthan 2016 (1) Supreme Court Cases 550, have held that",,
“last seen theory†is important link in chain of circumstances that would point towards guilt of accused with some certainty. Such theory permits,,
court to shift burden of proof to accused and he must then offer a reasonable explanation as to cause of death of deceased. However, it is not prudent",,
to base conviction solely on “last seen togetherâ€. Such theory should be applied, taking into consideration case of prosecution in its entirty and",,
keeping in mind circumstances that precede and follow the point of being so last seen. Where time gap is long, it would be unsafe to base conviction",,
on “last seen togetherâ€. It is safer to look for corroboration from other circumstances and evidence adduced by prosecution. Paras 14 to 18 of,,
the judgment are extracted below:-,,
“14. The Courts below convicted the appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the appellants on,,
23.01.2001. Undoubtedly, “last seen theory†is an important link in the chain of circumstances that would point towards the guilt of the accused",,
with some certainty. The “last seen theory†holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable,,
explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on “last seen,,
theoryâ€. “Last seen theory†should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the,,
circumstances that precede and follow the point of being so last seen.,,
15. Elaborating the principle of “last seen alive†in State of Rajasthan vs. Kashi Ram (2006) 12 SCC 254, this Court held as under:-",,
“23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are,,
unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon",,
him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an",,
explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer,,
an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act.",,
In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself",,
provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is",,
always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his,,
knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any",,
explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)â€",,
The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319.",,
16. In the light of the above, it is to be seen whether in the facts and circumstances of this case, whether the courts below were right in invoking the",,
“last seen theory.†From the evidence discussed above, deceased-Manoj allegedly left in the truck DL-1GA-5943 on 23.01.2001. The body of",,
deceased-Manoj was recovered on 26.01.2001. The prosecution has contended the accused persons were last seen with the deceased but the,,
accused have not offered any plausible, cogent explanation as to what has happened to Manoj. Be it noted, that only if the prosecution has succeeded",,
in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn",,
against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act.,,
17. During their questioning under Section 313 Cr.P.C., the appellant-accused denied Manoj having travelled in their truck No. DL-1GA-5943. As",,
noticed earlier, body of Manoj was recovered only on 26.01.2001 after three days. The gap between the time when Manoj is alleged to have left in the",,
truck No.DL-1GA-5943 and the recovery of the body is not so small, to draw an inference against the appellants. At this juncture, yet another aspect",,
emerging from the evidence needs to be noted. From the statement made by Shahzad Khan (PW-4) the internal organ (penis) of the deceased was,,
tied with rope and blood was oozing out from his nostrils. Maniya village, the place where the body of Manoj was recovered is alleged to be a notable",,
place for prostitution where people from different areas come for enjoyment.,,
18. In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was,,
recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen",,
together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj",,
and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the “last seen theoryâ€; it is,,
safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other",,
corroborative piece of evidence corroborating the last seen theory.â€,,
25. Their Lordships of Hon'ble the Supreme Court in Anjan Kumar Sarma and others vs State of Assam 2017 (14) Supreme Court Cases 359, have",,
held that only circumstance of “last seen together†and absence of satisfactory explanation, cannot be made basis of conviction. Paras 19, 20",,
and 23 to 25 of the judgment are extracted as under:-,,
“19. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State,,
of Rajasthan, (2014) 4 SCC 715, this court held that:",,
“12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the,,
crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant,",,
in our considered opinion, by itself cannot lead to proof of guilt against the appellant.",,
xx xx xx,,
15. The theory of last seenâ€"the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial",,
evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct.",,
These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship,,
between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan [(2010),,
15 SCC 588]â€,,
19. ..... 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.""",,
