{"id":135414,"date":"2011-07-04T00:00:00","date_gmt":"2011-07-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunil-rai-paua-ors-vs-union-territory-chandigarh-on-4-july-2011"},"modified":"2015-07-13T13:29:21","modified_gmt":"2015-07-13T07:59:21","slug":"sunil-rai-paua-ors-vs-union-territory-chandigarh-on-4-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunil-rai-paua-ors-vs-union-territory-chandigarh-on-4-july-2011","title":{"rendered":"Sunil Rai @ Paua & Ors vs Union Territory, Chandigarh on 4 July, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sunil Rai @ Paua & Ors vs Union Territory, Chandigarh on 4 July, 2011<\/div>\n
Author: A Alam<\/div>\n
Bench: Aftab Alam, R.M. Lodha<\/div>\n
                                                                                         REPORTABLE\n\n\n                        IN THE SUPREME COURT OF INDIA\n\n\n                     CRIMINAL APPELLATE JURISDICTION\n\n\n                CRIMINAL APPEAL NOS. 1254-1255   OF 2011\n\n               (Arising out of S.L.P. (Crl.) Nos.7110-7111 of 2010)\n\n\n\n\nSunil Rai @ Paua & Ors.                                                     .......Appellants\n\n\n                                              Versus\n\n\nUnion Territory, Chandigarh                                                 .......Respondent \n\n\n\n\n\n                                        J U D G M E N T\n<\/pre>\n
AFTAB ALAM, J.\n<\/p>\n<\/p>\n
1.      Leave granted.\n<\/p>\n<\/p>\n
2.      The three appellants are serving life sentences for committing murder <\/p>\n
of one Dile Ram. They were never on bail and have, thus, completed over <\/p>\n
ten years of incarceration. We, therefore, intended to grant leave in the case <\/p>\n
and release the appellants on bail. But, the counsel for the respondent stated <\/p>\n
that   once   released   on   bail   it   will   be   almost   impossible   to   get   hold   of   the <\/p>\n
appellants.   We,   accordingly,   proceeded   to   hear   the   case   on   merits   at   the <\/p>\n
stage of special leave itself and at the conclusion of hearing we are dismayed <\/p>\n
                                                 2<\/span><\/p>\n
to   find   that   the   appellants   were   convicted   and   sentenced   on   completely <\/p>\n
insufficient evidence.\n<\/p>\n<\/p>\n
3.      The   appellants   are   migrant   workers   who   came   to   Chandigarh   from <\/p>\n
different parts of the country in search of livelihood and were trying to eke <\/p>\n
out a living by working as rickshaw pullers. Appellant no.1, Sunil Rai alias <\/p>\n
Paua (accused no.1) had his money and clothes stolen by someone breaking <\/p>\n
open the lock of the box under the passenger seat of the rickshaw and the <\/p>\n
quarrel that took place, as a result of it, is said to be at the root of the alleged <\/p>\n
offence.\n<\/p>\n<\/p>\n
4.      According   to   the   prosecution   case,   on   March   29,   2001   at   about <\/p>\n
8:30 p.m. Arun Kumar (PW-14), Shailendra Kumar Pandey (PW-9) and one <\/p>\n
Jaspreet   Singh   alias   Chikna   were   present   near   the   GPO,   Sector   17, <\/p>\n
Chandigarh.   Appellant   no.2,  Sher  Bahadur   alias  Sheru   (accused   no.2)  was <\/p>\n
also   present   there.   At   that   time   Sunil   Rai   and   appellant   no.3,   Ram   Lal <\/p>\n
(accused no.3) came there. Sunil Rai was agitated as his money and clothes <\/p>\n
were   stolen.   He   accused   Sher   Bahadur   of   committing   the   theft   and   an <\/p>\n
altercation   took   place   between   them.   Sher   Bahadur   told   Sunil   Rai   that   he <\/p>\n
had   not   stolen   his   money   or   the   other   articles   and   it   might   have   been   the <\/p>\n
work   of   Dile   Ram.   He   also   told   Sunil   Rai   that   he   would   make   Dile   Ram <\/p>\n
return his money and clothes. It was at this stage that Dile Ram also arrived <\/p>\n
                                               3<\/span><\/p>\n
at the scene coming from the side of Jagat Cinema. Sunil Rai caught hold of <\/p>\n
Dile   Ram   by   his   neck   and   asked   him   to   return   his   money   and   clothes <\/p>\n
otherwise   he   would   kill   him.  A   scuffle   took   place   between   Sunil   Rai   and <\/p>\n
Dile Ram but the latter got himself freed and ran away from there. The three <\/p>\n
accused went after him yelling and shouting that they would not spare him. <\/p>\n
12   hours   later,   at   about   8:30   in   the   morning   of   March   30,   2001,   an <\/p>\n
unidentified person was found lying in a badly injured  condition at a spot <\/p>\n
near the local bus stand on the rear side of Neelam Cinema,  situate at the <\/p>\n
sector   17   market.   There   were   injuries   on   his   head   and   face.   At   the   spot <\/p>\n
where he lay there was a pouch of liquor (Ex. P32), a piece of brick (Ex. <\/p>\n
P1), a piece of stone (Ex. P2) and another piece of hard concrete. The blood <\/p>\n
flowing from the injuries had stained the earth at the spot, a sample of which <\/p>\n
was collected and produced in court as Ex. P3.\n<\/p>\n<\/p>\n
5.      The injured was sent to hospital where he died. He was later identified <\/p>\n
as Dile Ram who, according to the prosecution, was last seen the previous <\/p>\n
evening,   fleeing   away   with   the   appellants   in   pursuit   yelling   and   shouting <\/p>\n
threats at him.\n<\/p>\n<\/p>\n
6.      The three accused were put on trial for the murder of Dile Ram before <\/p>\n
the   Sessions   Judge,   Chandigarh,   who   by   judgment   dated   June   12,   2006 <\/p>\n
passed in Sessions Case no.02 of July 30, 2001 convicted all of them under <\/p>\n
                                             4<\/span><\/p>\n
section 302 read with section 34 of the Penal Code and by orders dated June <\/p>\n
13 & 15, 2006, sentenced them to rigorous imprisonment for life and a fine <\/p>\n
of Rs.5,000\/- each with the direction that in default of payment of fine they <\/p>\n
would undergo rigorous imprisonment for 1 year. The appellants went to the <\/p>\n
High   Court   in   two   separate   appeals,   one   by   Sunil   Rai   (Criminal   Appeal <\/p>\n
no.580-DB   of   2006)   and   the   other   by   the   other   two   appellants   (Criminal <\/p>\n
Appeal no.523-DB of 2006). Both the appeals were heard together and were <\/p>\n
dismissed   by   a   division   bench   of   the   High   Court   by   judgment   and   order <\/p>\n
dated March 5, 2008. The matter is now before this Court in appeal by grant <\/p>\n
of special leave.\n<\/p>\n<\/p>\n
7.     From the ante mortem injuries on the body of Dile Ram as coming to <\/p>\n
light from the medical evidence and the objective findings at the spot where <\/p>\n
the body was found lying, it is quite clear that his death was homicidal. But, <\/p>\n
the question remains regarding the culpability of the three appellants.<\/p>\n
8.     It may be stated at the outset that there is no ocular evidence of the <\/p>\n
commission   of   the   offence   and   the   prosecution   case   is   based   entirely   on <\/p>\n
circumstantial   evidence.   There   are   four   circumstances   relied   upon   by   the <\/p>\n
prosecution and accepted by the trial court and the High Court to hold the <\/p>\n
appellants guilty of the offence. These are as under:<\/p>\n
                                                  5<\/span><\/p>\n
       I.   The   deceased   was   last   seen   being   chased   by   the   appellants <\/p>\n
       yelling   at   him   and   shouting   that   they   would   not   spare   him <\/p>\n
       (paragraphs 20 and 21 of the High Court judgment).<\/p>\n
       II.   Sunil   Rai   made   an   extra   judicial   confession   before   PW-10, <\/p>\n
       Chander Shekhar, President of the Rickshaw Pullers’ Union telling <\/p>\n
       him that he along with Sher Bahadur and Ram Lal hit Dile Ram <\/p>\n
       with   brickbats   and   stones   at   about   9:00pm   in   the   night   between <\/p>\n
       March   29   and   30,   2001,   causing   injuries   to   him   that   led   to   his <\/p>\n
       death (paragraphs 22, 23 and 24 of the High Court judgment).<\/p>\n
       III. The recovery of the blood-stained jacket (Ex. P8) of Sunil Rai, <\/p>\n
       appellant no.1 from under the seat of the rickshaw on the basis of <\/p>\n
       the disclosure statement (Ex. PU) made by him and that was seized <\/p>\n
       under   seizure   memo   (Ex.   PV)   (paragraph   27   of   the   High   Court <\/p>\n
       judgment).<\/p>\n
\n       IV.  There  was  motive  for  the  accused  to  beat   and  even  kill   Dile <\/p>\n
       Ram (paragraph 25 of the High Court judgment).\n<\/p><\/blockquote>\n
<\/blockquote>\n
9.         Let   us   now   examine   the   evidences   in   support   of   each   of   the   four <\/p>\n
circumstances enumerated above.\n<\/p>\n<\/p>\n
10.    On the issue of last seen, the prosecution examined Shailendra Kumar <\/p>\n
Pandey as PW-9, Arun Kumar as PW-14 and Harish Kumar Bansal as PW-<\/p>\n
                                                            6<\/span><\/p>\n
15. Though Jaspreet Singh had also been cited earlier as one of the witnesses <\/p>\n
on this point, he was not examined before the Court.\n<\/p>\n<\/p>\n
11.       PW-9,   in   course   of   his   examination-in-chief   stated   that   as   he   (Dile <\/p>\n
Ram) was able to free himself from the hold of Sunil Rai: <\/p>\n
          “Dile   Ram   ran   towards  Jagat   Theatre.   Pauya   and   Sheru   and <\/p>\n
          Ram Lal ran after Dile Ram.”\n<\/p>\n
In cross examination he stated as follows:\n<\/p>\n<\/p>\n
          “Dile Ram went towards  Neelam Theatre  whereas Sheru and <\/p>\n
          Pauya went towards Jagat theatre.”\n<\/p>\n
\nIn reply to a question by the court, he said:\n<\/p>\n<\/p>\n
          “Chikna and Arun ran towards Jagat theatre. Pauya, Sheru and <\/p>\n
          Ram Lal ran after the deceased towards Neelam theatre.” <\/p>\n<\/blockquote>\n
                                                                               (emphasis added)<\/p>\n<\/blockquote>\n
12.       It needs to be recalled here that the spot where Dile Ram was found <\/p>\n
next morning lying in an injured condition, was near the local bus stand, on <\/p>\n
the rear side of Neelam Cinema. It has also come on record that the place <\/p>\n
where   the   quarrel   took   place   between   the   accused   and   the   Dile   Ram   and <\/p>\n
from where Dile Ram ran away, allegedly being chased by them, is at a large <\/p>\n
square and Neelam theatre and Jagat theatre are at its two opposite ends, at a <\/p>\n
distance   of   about   1km   from   each   other.   Sub-Inspector,   Ramesh   Chand <\/p>\n
Sharma, PW-17 in his deposition said:\n<\/p><\/blockquote>\n
\n                                             7<\/span><\/p>\n<\/blockquote>\n
        “… It is correct that if one comes from Jagat Theatre and goes <\/p>\n
        to   Neelam   Theatre   he   has   to   pass   police   post   of   Neelam <\/p>\n
        Chowki. Subway of Neelam is at a distance of 50 yards from <\/p>\n
        the   police   post.   Some   one   always   remains   at   police   post   of <\/p>\n
        Neelam.   After   8\/9p.m.   only   1\/2   persons   remain   in   the   police <\/p>\n
        post. It is wrong to say that 12 persons remain deputed at the <\/p>\n
        police post….”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
13.     Thus, the first statement of PW-9 suggests that the deceased and the <\/p>\n
accused   had   gone   in   the   direction   completely   opposite   to   where   his   body <\/p>\n
was found 12 hours later. His second statement is that the deceased and the <\/p>\n
accused  had  gone in opposite directions.  His  third statement,  in answer to <\/p>\n
the court question, is of course that the deceased and the accused had gone in <\/p>\n
the direction of Neelam Cinema. It is also to be noted that in his first two <\/p>\n
statements he only mentions the names of accused nos.1 and 2, that is, Sunil <\/p>\n
Rai and Sher Bahadur but does not name Ram Lal whom he mentions only <\/p>\n
in his third statement in reply to the question by the court. <\/p>\n<\/blockquote>\n
14.     The High Court has tried to explain the vacillating statements of PW-<\/p>\n
9 by observing as follows:\n<\/p>\n<\/p>\n
        “It appears that Shailender Kumar Pandey, PW9, inadvertently <\/p>\n
        made  a statement  that Dile Ram (deceased) ran towards Jagat <\/p>\n
        Cinema,   instead   of   Neelam   Cinema   and   the   accused   chased <\/p>\n
        him.   Such   a   minor   discrepancy,   cannot   be   given   any   weight, <\/p>\n
        since a period of more than one year, and four months, from the <\/p>\n
        date   of   altercation,   referred   to   above,   had   lapsed   when <\/p>\n
        Shailender   Kumar   Pandey   PW9   appeared   in   the   court   as   a <\/p>\n
        witness.”\n<\/p><\/blockquote>\n
\n                                                   8<\/span><\/p>\n<\/blockquote>\n
15.     To   our   mind   the   vacillations   in   the   deposition   of   PW-9   cannot   be <\/p>\n
brushed aside as “minor discrepancy” especially when it is to form the basis <\/p>\n
for life sentences to three persons.\n<\/p>\n<\/p>\n
16.     With all the inconsistencies, on the issue of last seen PW-9 happens to <\/p>\n
be the best prosecution witness and the position becomes far worse when we <\/p>\n
come to the other two witnesses. PW-14 was first examined on January 14, <\/p>\n
2003. In course of his examination-in-chief, he stated as follows:<\/p>\n
        “… all of a sudden Diley Ram freed himself from the clutches <\/p>\n
        of Pauya and ran towards Neelam Cinema located in sector 17. <\/p>\n
        All the three accused i.e. Pauya alias Sunil Rai, Sheru and Ram <\/p>\n
        Lal also chased Diley Ram and as they were chasing they said <\/p>\n
        they will kill him….”\n<\/p><\/blockquote>\n
<\/blockquote>\n
17.     His cross examination did not take place on that date but it was done <\/p>\n
later on April 8, 2003. In cross examination he stated as follows:<\/p>\n
        “… The deceased was under the influence of liquor on the day <\/p>\n
        of   occurrence   and   some   others   had   also   taken   liquor.   It   is <\/p>\n
        correct   that  Dilay   Ram  was  insisting   for  more   liquor  whereas <\/p>\n
        the others were saying that they will not consume liquor. Dilay <\/p>\n
        Ram was demanding money for buying more liquor. Then they <\/p>\n
        all   left   that   place.  Dilay   Ram   left   towards   Neelam   theatre <\/p>\n
        and   the   accused   present   in   the   court   went   towards   Jagat <\/p>\n
        theatre….”\n<\/p><\/blockquote>\n
                                                                                  (emphasis added)<\/p>\n<\/blockquote>\n
18.         After  his cross examination,  the prosecution declared  him `hostile’ <\/p>\n
and   filed   a   petition   seeking   permission   to   cross   examine   him.   The   court <\/p>\n
allowed the petition by order dated July 11, 2003 and granted permission to <\/p>\n
                                                9<\/span><\/p>\n
the prosecution to cross examine PW-14, whereupon his cross examination <\/p>\n
by the prosecution took place on September 18, 2003. In this round he again <\/p>\n
went back to his earlier statement and stated as follows:<\/p>\n<\/blockquote>\n
        “… Dilay Ram ran towards Neelam Theatre and all the accused <\/p>\n
        present in the court today ran after him…<\/p>\n
        …   I   say   that   deceased   ran   towards   Neelam   theatre   and   the <\/p>\n
        accused followed him. It is correct that earlier I had mentioned <\/p>\n
        in my statement regarding Jagat Theatre.”<\/p>\n<\/blockquote>\n<\/blockquote>\n
19.     The only explanation for these contrary statements appears to be that <\/p>\n
each time during the gap between his depositions in court he came under the <\/p>\n
influence of the one or the other side and made the statements to please the <\/p>\n
respective sides. To us, he is not a trustworthy witness and we are unable to <\/p>\n
place any reliance on his testimony.\n<\/p><\/blockquote>\n
<\/blockquote>\n
20.     PW-15 did not at all support the prosecution case on the point of last <\/p>\n
seen   and   he   did   not   even   identify   the   accused   present   in   court.   He   was <\/p>\n
declared   hostile   by   the   prosecution.   There   is   one   thing,   however,   quite <\/p>\n
significant   about   PW-15.   In   cross   examination   by   the   defence,   it   was <\/p>\n
suggested that he was a tout and a stock witness for the police. In reply to <\/p>\n
the suggestion, he stated as under:\n<\/p>\n<\/p>\n
        “… It is wrong to say that I am a police tout. It is correct that I <\/p>\n
        have been shown as a witness in case FIR.52 dt.12.8.2K under <\/p>\n
        NDPS   Act.   It   is   correct   that   I   also   appeared   as   a   prosecution <\/p>\n
        witness   registered   under   NDPS   Act   under   FIR   No.228 <\/p>\n
        dt.15.5.2000.   It   is   correct   that   both   these   cases   were <\/p>\n
                                               10<\/span><\/p>\n
        investigated   by   S.I.   Ramesh   Chand.   It   is   correct   that   the   spot <\/p>\n
        where the injured was running does not have any light point. I <\/p>\n
        have not seen any person hitting the injured.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
21.     Ramesh Chand Sharma, S.I. was the investigating officer of the case <\/p>\n
before the investigation was taken over by DSP Arjun Singh Jaggi, PW-20. <\/p>\n
Ramesh Chand Sharma was examined in the case as PW-17.<\/p>\n
22.     On a careful consideration of the evidences of PWs 9, 14 and 15, we <\/p>\n
are   unable   to   see   how   the   accused   can   be   said   to   be   connected   with   the <\/p>\n
commission  of  the  offence  on  the   basis  of the  quarrel   that  is  said   to  have <\/p>\n
taken place in the evening of March 29, 2001 between Sunil Rai and Dile <\/p>\n
Ram. On the basis of the depositions of PWs 9 and 14 what can be said to <\/p>\n
have been established is only that while they were all present near the GPO, <\/p>\n
Sector   17,   a   quarrel   and   a   scuffle   had   taken   place   between   Sunil   Rai   and <\/p>\n
Dile   Ram   whom   he   accused   of   stealing   his   money   and   clothes.   But   the <\/p>\n
further story that when Dile Ram freed himself from the grip of Sunil Rai <\/p>\n
and ran away from there to-wards Neelam Cinema he was pursued by all the <\/p>\n
accused   who   were   shouting   that   they   would   not   spare   him   is   completely <\/p>\n
unacceptable on the basis of their evidences. The failure to establish that part <\/p>\n
of   the   story   leaves   a   wide   gap   in   the   prosecution   case   and   weakens   it <\/p>\n
considerably.\n<\/p>\n
\n                                                11<\/span><\/p>\n
23.       Coming now, to the extra judicial confession said to have been made <\/p>\n
by Sunil Rai before Chander Shekhar, President, Rickshaw Pullers’ Union, <\/p>\n
Sunil   Rai,   in   his   statement   under   section   313   of   the   Code   of   Criminal <\/p>\n
Procedure,   of   course,   denied   having   made   any   confessional   statement. <\/p>\n
Chander  Shekhar  was  examined as   PW-10.  In  the examination-in-chief  he <\/p>\n
stated that on April 1, Sunil Kumar went to him at about 3 in the afternoon <\/p>\n
and disclosed  that he along with some  others had committed  a blunder by <\/p>\n
killing Dile Singh in course of a fight. He added that Sunil disclosed to him <\/p>\n
that Jaspreet Singh and Sher Bahadur had also joined him in assaulting the <\/p>\n
deceased.\n<\/p>\n<\/p>\n
24.       It is, thus, evident that in course of his examination-in-chief, he was <\/p>\n
trying to implicate Jaspreet Singh (who was not an accused in the case) and <\/p>\n
was trying to save Ram Lal who, according to the prosecution, was accused <\/p>\n
no.3.\n<\/p>\n<\/p>\n
25.       At that stage he was declared hostile and on being cross examined by <\/p>\n
the   prosecution,   he   said   that   Sunil   had   told   him   that   he   along   with   Sher <\/p>\n
Bahadur and Ram Lal had caused injuries to Dile Ram by hitting him with <\/p>\n
brickbats and stones.\n<\/p>\n<\/p>\n
26.       In   further   cross   examination   by   the   defence,   he   admitted   that   Sunil <\/p>\n
was   not   known   to   him   personally   but   all   rickshaw   pullers   were   known   to <\/p>\n
                                              12<\/span><\/p>\n
him as he was the President of one of the three Unions of Rickshaw Pullers <\/p>\n
of Chandigarh. In cross examination by the defence, he once again replaced <\/p>\n
Ram Lal by Jaspreet Singh and stated that Sunil Rai had disclosed to him <\/p>\n
that he along with Sher Bahadur and Jaspreet Singh had thrown stones at the <\/p>\n
deceased   causing   injuries   to   him   leading   to   his   death.   Evidently,   PW-10 <\/p>\n
does not have much regard for truthfulness.\n<\/p>\n<\/p>\n
27.     Admittedly, the alleged confessional statement was oral and it was not <\/p>\n
recorded   in   writing.   Admittedly,   Sunil   Rai   had   no   personal   acquaintance, <\/p>\n
much   less   any   intimacy   with   PW-10.   An   extra   judicial   confessional <\/p>\n
statement   made   orally   before   a   person   with   whom   the   maker   of   the <\/p>\n
confession has no intimate relationship is not a very strong piece of evidence <\/p>\n
and in any event it can only be used for corroboration (See  S. Arul Raja  v.  <\/p>\n
State of Tamil Nadu,<\/a> (2010) 8 SCC 233 paragraphs 48-56). In this case with <\/p>\n
PW- 10 appearing particularly anxious to implicate Jaspreet Singh in place <\/p>\n
of   Ram   Lal,   it   further   loses   any   credibility.   Further,   in   the   confessional <\/p>\n
statement allegedly made before PW-10 there is an inherent improbability. <\/p>\n
The “disclosure” made by Sunil Rai before PW-10 did not indicate the place <\/p>\n
where the assault on Dile Ram took place but it gave the time of the assault <\/p>\n
as   9.00pm.   In   the   evidence   of   PW-17   it   has   come   that   Neelam   Police <\/p>\n
Chowki is at a distance of 50 yards from the Neelam sub-way. The police <\/p>\n
                                             13<\/span><\/p>\n
post is naturally manned twenty four hours even though, according to PW-<\/p>\n
17, after 8-9 pm only one or two persons remain on the post. The occurrence <\/p>\n
took place on March 29. At the end of March, 9.00pm is not a very late hour <\/p>\n
when an occurrence of this kind taking place near the local bus stand and the <\/p>\n
parking place for rickshaws, behind a cinema theatre and at a distance of no <\/p>\n
more than 50 yards should normally go completely unnoticed by any one, <\/p>\n
including the policemen at the police post.\n<\/p>\n<\/p>\n
28.     For   the   aforesaid   reasons   we   find   it   impossible   to   rely   upon   the <\/p>\n
evidence of PW-10 and, thus, goes the extra judicial oral confession by Sunil <\/p>\n
Rai.\n<\/p>\n<\/p>\n
29.     This leaves us with the remaining two circumstances,  that is to say, <\/p>\n
the recovery of the bloodstained jacket of Sunil Rai from under the seat of a <\/p>\n
rickshaw   and   motive.   According   to   the   report   of   the   Central   Forensic <\/p>\n
Science Laboratory (Ext. PA) the pair of pants, shirt, vest, and under-pants <\/p>\n
taken off from the body of Dile Ram were stained with human blood of  ‘B’ <\/p>\n
group; the blood group of the sample of blood taken from the deceased was <\/p>\n
also `B’. And the stains on the jacket recovered from under the seat of the <\/p>\n
rickshaw were also of the same group of human blood. The report  further <\/p>\n
indicated that though there were stains of human blood on the piece of brick <\/p>\n
and the sample of earth collected from the spot where the body of Dile Ram <\/p>\n
                                               14<\/span><\/p>\n
was   found   it   was   not   possible   to   ascertain   the   blood   group.   The   piece   of <\/p>\n
concrete and the stone piece had no blood stains.\n<\/p>\n<\/p>\n
30.     No effort was made to take the blood sample of Sunil Rai and it is not <\/p>\n
known what is his blood group. Moreover, the jacket was recovered from a <\/p>\n
rickshaw standing out in the open where it was accessible to anyone. In the <\/p>\n
aforesaid circumstances, the recovery of the bloodstained jacket, on its own <\/p>\n
is a circumstance too fragile to bear the burden of the appellants’ conviction <\/p>\n
for murder.\n<\/p>\n<\/p>\n
31.     Likewise, the fact that Sunil Rai had got his money and clothes stolen <\/p>\n
and he believed that Dile Ram had committed the theft, normally, cannot be <\/p>\n
said to make out sufficient motive for him to kill Dile Ram. In any event, <\/p>\n
motive alone can hardly be a ground for conviction.\n<\/p>\n<\/p>\n
32.     On the materials on record, there may be some suspicion against the <\/p>\n
accused   but   as   is   often   said   suspicion,   howsoever,   strong   cannot   take   the <\/p>\n
place   of   proof.   We,   therefore,   find   and   hold   that   the   conviction   of   the <\/p>\n
appellants   is   based   on   completely   insufficient   evidence   and   is   wholly <\/p>\n
unsustainable.\n<\/p>\n<\/p>\n
33.     It is seen above that the quality of the prosecution evidence is too poor <\/p>\n
to satisfactorily establish any of the first three circumstances for holding the <\/p>\n
appellants   guilty   of   the   offence   of   murder.   As   none   of   the   three <\/p>\n
                                               15<\/span><\/p>\n
circumstances were sufficiently proved, there is no question of taking them <\/p>\n
as   links   forming   an   unbroken   chain   that   would   lead   to   the   only   possible <\/p>\n
inference regarding the appellant’s guilt. But before parting with the records <\/p>\n
of the case, we must sadly observe that so far as appellant nos.2 and 3 are <\/p>\n
concerned,  it’s  a  case   of  no evidence  inasmuch as   apart  from  the  first  the <\/p>\n
remaining three circumstances are not relatable to them at all. <\/p>\n
34.     The   second   circumstance   in   the   case   as   noted   above   was   the   extra <\/p>\n
judicial confession made by Sunil Rai, appellant no.1. It is seen above that <\/p>\n
PW-10,  before whom the confession  was allegedly  made,  tried  his  best to <\/p>\n
shield Ram Lal and to implicate in his place Jaspreet Singh. Nonetheless, the <\/p>\n
High Court deemed fit to use the extra judicial confessional statement made <\/p>\n
orally by Sunil Rai as substantive evidence not only against him but against <\/p>\n
appellant nos.2 and 3 as well. In our view, the High Court was completely <\/p>\n
wrong in using the alleged confessional statement made by Sunil Rai against <\/p>\n
appellant   nos.2   and   3.   For   taking   into   consideration   the   confessional <\/p>\n
statement of Sunil Rai against the other two appellants the High Court has <\/p>\n
relied upon two decisions of this Court. One in  Ammini  v.  State of Kerala<\/a> <\/p>\n
(1998) 2 SCC  301 and the other  in  Prakash Dhawal  Khairnar  v.  State of  <\/p>\n
Maharashtra,   (2002)   2   SCC   35.   In   our   view,   both   the   decisions   have   no <\/p>\n
application   to   the   facts   of   this   case.   In   both   cases   the   confessions   were <\/p>\n
                                              16<\/span><\/p>\n
neither   oral   nor   extra   judicial.   In   both   cases   confessional   statements   were <\/p>\n
made before a Magistrate and were reduced to writing. In Prakash Dhawal  <\/p>\n
Khairnar, the Judicial Magistrate, first class, before whom the maker of the <\/p>\n
confession   was   produced   not   only   gave   him   the   due   warning   but   also <\/p>\n
allowed him 24 hours time to think over the matter. It was only after he was <\/p>\n
produced the following day that the Magistrate recorded his statement under <\/p>\n
section   164   of   the   Code   of   Criminal   Procedure.   In  Prakash   Dhawal  <\/p>\n
Khairnar, the confessional statement was not retracted either.<\/p>\n
35.      In  Ammini,   the   facts   were   entirely   different   from   the   present.   The <\/p>\n
accused   had   entered   into   a   conspiracy   in   pursuance   of   which   several <\/p>\n
unsuccessful attempts were earlier made before the victims were eventually <\/p>\n
killed. In the trial for the crime the accused were charged separately under <\/p>\n
section   120-B,   apart   from   section   302   read   with   section   34   of   the   Penal <\/p>\n
Code.   One   of   the   charges   being   under   section   120-B,   the   confessional <\/p>\n
statement by one accused was used against the others on the basis of section <\/p>\n
10 of the Indian Evidence Act. In the present case there was no allegation of <\/p>\n
any conspiracy  and there was no charge under section 120-B of the Penal <\/p>\n
Code.\n<\/p>\n<\/p>\n
36.      In  Prakash Dhawal Khairnar  too, one of the charges against the two <\/p>\n
accused  being father and son was under section 120-B of the Penal Code. <\/p>\n
                                              17<\/span><\/p>\n
But the son, the maker of the confession was acquitted of the charge under <\/p>\n
section   120-B   of  the   Penal  Code.   In  that   circumstance,   the   question   arose <\/p>\n
whether the confessional statement of the son could be used against the other <\/p>\n
co-accused,   his   father   for  maintaining   his   conviction   under  section   302  of <\/p>\n
the   Penal   Code.   This   Court   pointed   out   that   the   conviction   of   the   father <\/p>\n
under   section   302   of   the   Penal   Code   was   based   on   a   number   of <\/p>\n
circumstantial   evidences   that   were   independently   established   and   the <\/p>\n
confessional   statement   of   the   son   was   not   used   as   a   substantive   piece   of <\/p>\n
evidence. In paragraph 20 of the judgment, this Court observed as follows:<\/p>\n
        “20.   In   this   case,   the   High   Court   has   not   relied   upon   the <\/p>\n
        confessional   statement   as   a   substantive   piece   of   evidence   to <\/p>\n
        convict Accused 1. It has been used for lending assurance to the <\/p>\n
        proved   circumstances.   The   High   Court   held   that   the   proved <\/p>\n
        circumstances   would   not   involve   Accused   2   for   the   offence <\/p>\n
        punishable   under   Section   302   IPC   and   the   circumstantial <\/p>\n
        evidence   does   not   establish   that   there   was   any   common <\/p>\n
        intention   or   conspiracy   between   the   father   and   the   son   to <\/p>\n
        commit the offence….”\n<\/p><\/blockquote>\n
<\/blockquote>\n
37.     It is, thus, clear that the extra judicial confession of Sunil Rai could <\/p>\n
not   be   fastened   upon   the   other   two   appellants   for   holding   them   guilty   of <\/p>\n
murder   and   the   High   Court   was   quite   wrong   in   using   the   confessional <\/p>\n
statement of Sunil Rai as a circumstance against the other two appellants. <\/p>\n
38.     Recovery   of   the   bloodstained   jacket   of   Sunil   Rai,   the   third <\/p>\n
circumstance   obviously   does   not   relate   to   appellant   nos.2   and   3   in   any <\/p>\n
                                              18<\/span><\/p>\n
manner. Equally, the theft of the money and clothes of Sunil Rai would be <\/p>\n
no motive for the other two accused to assault Dile Ram, much less to kill <\/p>\n
him.\n<\/p>\n<\/p>\n
39.     Thus,   seen   for   any   angle   the   conviction   of  the   appellants   cannot   be <\/p>\n
sustained. The judgments and orders of the High Court and the trial court are <\/p>\n
completely unsustainable. The two judgments are set aside. The appellants <\/p>\n
are acquitted of the charges and are directed to be released forthwith unless <\/p>\n
required in connection with any other case.\n<\/p>\n<\/p>\n
40.     In the result the appeals are allowed.\n<\/p>\n<\/p>\n
                                                              …………………………………..J<\/p>\n
                                                                (AFTAB ALAM)<\/p>\n
                                                              …………………………………..J<\/p>\n
                                                                (R.M. LODHA)<\/p>\n
New Delhi,<\/p>\n
July 4, 2011.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sunil Rai @ Paua & Ors vs Union Territory, Chandigarh on 4 July, 2011 Author: A Alam Bench: Aftab Alam, R.M. Lodha REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1254-1255 OF 2011 (Arising out of S.L.P. (Crl.) Nos.7110-7111 of 2010) Sunil Rai @ Paua & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-135414","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSunil Rai @ Paua & Ors vs Union Territory, Chandigarh on 4 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sunil-rai-paua-ors-vs-union-territory-chandigarh-on-4-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunil Rai @ Paua & Ors vs Union Territory, Chandigarh on 4 July, 2011 - 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