# TEJINDER SINGH @ KAKA v. STATE OF PUNJAB

- **Citation:** [2013] 2 S.C.R. 802
- **Court:** Supreme Court of India
- **Decided:** 2013-04-11
- **Case number:** Criminal Appeal No. 1279 of 2008
- **Bench:** Chandramauli Kr. Prasad, V. Gopala Gowda
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tejinder-singh-kaka-v-state-of-punjab-28754
- **Pages:** 26

## Headnote

PENAL CODE, 1860:
ss. 302, 376(2)(g), 201 and 506 - Gang rape and murder
- Conviction by trial court - Affirmed by High Court - Held:
There is major discrepancy in the testimony of witnesses and
also registration of FIR on the basis of information furnished
0 by the informant - Further, the Sarpanch to whom the accused
were stated to have made confessional statement, reported ·.
the matter to police after 16 days - His evidence. is not
believable - The narration of the alleged offences against the
appellants and other accused by prosecution witnesses is
most unnatural and unbelievable to convict and sentence
E them - Neither trial court nor High Court has examined their
testimony properly by re-appreciating the same to record
findings on the charges - There is no material evidence on
record to convict and sentence the appellants - Their
conviction and sentences are set aside - Circumstantial
F evidence.
Extra-judicial confession - Held: Is a weak form of
evidence and based on such evidence no conviction and
sentence can be imposed upon the appellants and other
G accused.
CONSTITUTION OF IND/A, 1950:
'
,
Art. 142 - Benefit of acquittal extended to non-appellantH
802
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB
803
accused also - Penal Code, 1860 - ss. 302, 376 (2) (g), 201,
A
404 and 506 /PC.
An FIR was lodged at the Police Station on 25.5.2000
for offences punishable u/s 302, 376{2){g), 148, 201 and
404 read with s. 34 IPC, alleging that on 24.5.2000 at about
8
9 A.M. the deceased had gone to the fields to bring fodder
and did not return. At about 8 A.M. on 25.5.2000, the body
of the deceased was found buried in a fresh dug pit in
the sugar cane field belonging to accused 'SL'. The trial
court convicted accused 'GS' u/ss 302, 376{2){g) and 506
C
IPC amd accused 'RV'. 'HS', 'BS' and SL u/ss 302,
376{2)(g) and 404 IPC. All these five accused were
sentenced to imprisonment for life. Accused 'TS' was
convicted u/s 201 IPC and sentenced to 7 years RI. The
High Court affirmed the conviction and the sentence.
Except accused 'GS', all other accused filed the appeals.
D
Allowing the appeals, the Court
HELD: 1.1 In so far as appellant 'TS' is concerned,
the charge is u/s 201 IPC. As could be seen from the
E
evidence of PW-8 and PW-9, there is major discrepancy
between. their statements of evidence. PW-8 has stated
that appellant 'TS' started digging a pit with spade in the
sugarcane field, whereas PW-9 has stated that the said
appellant was not present at that time. In view of the major
F
discrepancy and contradiction between the statements
of the witnesses, it not only creates a grave suspicion
regarding the said appellant being part of the offence but
also makes his presence doubtful at the place of
occurrence. Therefore, placing reliance by trial court
upon the testimony of the said witnesses and recording
G
the finding against appellant 'TS' on the charge and
passing an order of conviction and sentence which is
affirmed by the High Court is without proper appreciation
of the major discrepancy in the statements of PWs 8 and
9 regarding the presence of appellant 'TS' at the place of H
804
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A occurrence.
The courts below have also failed to take
into consideration the evidence of PW-10, wherein she
had deposed about the presence of other accused near
the place of occurrence, but she has not named appellant
'TS. Moreover, there is nothing substantive and positive
B evidence placed on record against appellant 'TS" by the
prosecution to prove its case against him. It cannot be
said that the prosecution has proved its case beyond
reasonable doubt.
The benefit of doubt should have
been extended to 'TS' in the impugned judgment by the
c High Court while re-appreciating the evidence on record
in exercise of its jurisdiction. [para 18, 20 and 21] [817-DE, F-H; 818-A-E, F-H]
D
Sukhram Vs. State of Maharashtra 2007 (9) SCR 44 =
2001 (7) sec 502 - relied on.
1.2 Thus, this Court holds that there is major
discrepa

## Text

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A
B
c
[2013] 2 S.C.R. 802
TEJINDER SINGH @ KAKA
v.
STATE OF PUNJAB
(Criminal Appeal No. 1279 of 2008 etc.)
APRIL 11, 2013
[CHANDRAMAULI KR. PRASAD AND V. GOPALA
GOWDA, JJ.]
PENAL CODE, 1860:
ss. 302, 376(2)(g), 201 and 506 - Gang rape and murder
- Conviction by trial court - Affirmed by High Court - Held:
There is major discrepancy in the testimony of witnesses and
also registration of FIR on the basis of information furnished
0 by the informant - Further, the Sarpanch to whom the accused
were stated to have made confessional statement, reported ·.
the matter to police after 16 days - His evidence. is not
believable - The narration of the alleged offences against the
appellants and other accused by prosecution witnesses is
most unnatural and unbelievable to convict and sentence
E them - Neither trial court nor High Court has examined their
testimony properly by re-appreciating the same to record
findings on the charges - There is no material evidence on
record to convict and sentence the appellants - Their
conviction and sentences are set aside - Circumstantial
F evidence.
Extra-judicial confession - Held: Is a weak form of
evidence and based on such evidence no conviction and
sentence can be imposed upon the appellants and other
G accused.
CONSTITUTION OF IND/A, 1950:
'
,
Art. 142 - Benefit of acquittal extended to non-appellantH
802
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB
803
accused also - Penal Code, 1860 - ss. 302, 376 (2) (g), 201,
A
404 and 506 /PC.
An FIR was lodged at the Police Station on 25.5.2000
for offences punishable u/s 302, 376{2){g), 148, 201 and
404 read with s. 34 IPC, alleging that on 24.5.2000 at about
8
9 A.M. the deceased had gone to the fields to bring fodder
and did not return. At about 8 A.M. on 25.5.2000, the body
of the deceased was found buried in a fresh dug pit in
the sugar cane field belonging to accused 'SL'. The trial
court convicted accused 'GS' u/ss 302, 376{2){g) and 506
C
IPC amd accused 'RV'. 'HS', 'BS' and SL u/ss 302,
376{2)(g) and 404 IPC. All these five accused were
sentenced to imprisonment for life. Accused 'TS' was
convicted u/s 201 IPC and sentenced to 7 years RI. The
High Court affirmed the conviction and the sentence.
Except accused 'GS', all other accused filed the appeals.
D
Allowing the appeals, the Court
HELD: 1.1 In so far as appellant 'TS' is concerned,
the charge is u/s 201 IPC. As could be seen from the
E
evidence of PW-8 and PW-9, there is major discrepancy
between. their statements of evidence. PW-8 has stated
that appellant 'TS' started digging a pit with spade in the
sugarcane field, whereas PW-9 has stated that the said
appellant was not present at that time. In view of the major
F
discrepancy and contradiction between the statements
of the witnesses, it not only creates a grave suspicion
regarding the said appellant being part of the offence but
also makes his presence doubtful at the place of
occurrence. Therefore, placing reliance by trial court
upon the testimony of the said witnesses and recording
G
the finding against appellant 'TS' on the charge and
passing an order of conviction and sentence which is
affirmed by the High Court is without proper appreciation
of the major discrepancy in the statements of PWs 8 and
9 regarding the presence of appellant 'TS' at the place of H
804
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A occurrence.
The courts below have also failed to take
into consideration the evidence of PW-10, wherein she
had deposed about the presence of other accused near
the place of occurrence, but she has not named appellant
'TS. Moreover, there is nothing substantive and positive
B evidence placed on record against appellant 'TS" by the
prosecution to prove its case against him. It cannot be
said that the prosecution has proved its case beyond
reasonable doubt.
The benefit of doubt should have
been extended to 'TS' in the impugned judgment by the
c High Court while re-appreciating the evidence on record
in exercise of its jurisdiction. [para 18, 20 and 21] [817-DE, F-H; 818-A-E, F-H]
D
Sukhram Vs. State of Maharashtra 2007 (9) SCR 44 =
2001 (7) sec 502 - relied on.
1.2 Thus, this Court holds that there is major
discrepancy in the testimony of witnesses PW-8 and PW9 and also registration of FIR on the basis of information
furnished by the informant. The finding of the trial court
E in this regard is erroneous in law for the reason that the
evidence of PWs 8 and 9 has raised serious suspicion
and doubt. Therefore, the same must be extended to the
other appellants. [para 22] [820-A-C]
1.3 Further, PW-7, to whom the co-accused namely,
F 'GS', 'HS' and 'SL', made a disclosure statement
describing the whole incident to him on 12.06.2000, has
neither recorded the alleged extra judicial confession nor
made the disclosure of the said statement within
reasonable time but took 16 days to disclose the extra
G judicial confessions made by the accused persons to
inform the police. The delay In informing the police
regarding the extra judicial confessional statement
alleged to have made to him by some of the accused has·
not been explained by PW-7 and the reason sought to be
H given by him for non disclosure of the same to the police
•
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB
805
cannot be accepted by this Court as it is not natural and
A
also not satisfactory. His evidence is not believable.
Therefore, the reliance placed upon the evidence of PW7 by both the trial court and the High Court to convict the
appellant and sentencing him for the offence u/s 201 IPC
is erroneous in law. [para 23 and 25] [820-D-F; 823-G]
B
Dwarkadas Gehanmal Vs. State of Gujarat 1999 (1)
SCC57 - relied on.
1.4 Besides, the extra judicial confession is a weak
form of evidence and based on such evidence no C
conviction and sentence can be imposed upon the
appellants and other accused. [para 24] [821-B]
Pancho Vs. State of Haryana 2011 (12) SCR 1173 =
2011 (10) SCC 165; and Sahadevan & Anr. Vs. State of o
Tamil Nadu 2012 (4) SCR 366 = 2012 (6) SCC 403 - relied
on.
1.5 In so far as the other appellants in connected
appeals are concerned, the trial court after placing
reliance upon the evidence of PW-7, PW-8 and PW-9 has
E
recorded the findings on charges against them, which is
wholly untenable in law.
Neither the trial court nor the
High Court has examined their testimony properly by reappreciating the same to record the findings on the
charges. The narration of the alleged offenc~s against
F
the appellants and other accused by the prosecution
witnesses is most unnatural and unbelievable to convict
and sentence them. The courts below should have
appreciated the evidence on record properly ai;td should
not have believed the statement of evidence of PW-8 for G
the reason that neither he has disclosed the alleged
offences said to have been committed by the appellants
and other accused nor did he depose before the trial
court or to anyone of the villagers. The explanation given
by him that he was held out of fear and, therefore, he did
H
806
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A not disclose the incident to anyone of the villagers cannot
be accepted as it is unnatural. Therefore, the evidence of
PW-8 cannot be believed by this Court. [para 27] [824-DH; 825-A]
1.6 The testimonies of PW-8 and PW-9 would clearly
B go to show that there is a discrepancy regarding the
narration of the offences said to have been committed by
the accused. Therefore, the courts below should not
have placed reliance on the evidence of PW-8 and PW-9
and recorded the finding that the charges levelled against
C the appellants/accused were proved. Both the courts
below have committed serious error in placing reliance
upon the untrustworthy testimonies of PW-8 and PW-9
and passing an order of conviction and sentence against
them. Further, from the evidence of the other witness,
D namely, PW-10, the offence alleged to have been
committed by said accused also cannot be accepted.
[para 27 & 28] [825-A-C; D-E]
1.7 The courts below have convicted and sentenced
the appellants ori the charges framed against them based
E on the circumstantial evidence, even though the chain of
events are not proved by the prosecution to bring home
the guilt of the appellants/accused on the charges leveled
against them. The concurrent finding recorded by the
High Court on the charges is opposed to the legal
F principles laid down in this regard by this Court. The
conviction of the appellants/accused for the alleged
offence on the basis of evidence of the prosecution
witnesses suffers from error in law. [para 28 and 31] [825G-H; 826-H; 827-A-B]
G
1.8 There is no material evidence on record to convict
and sentence the appellants. After going through the
deposition of the prosecution witnesses, this Court is
satisfied that the case of the prosecution against the
appellants/accused on the charges creates suspicion and
H doubt in the absence of legal evidence on record and.
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB 807
therefore, the same should enure to the benefit of A
accused for their acquittal. Their conviction and
sentences are set aside. [para 30 and 32] [826-G; 827-C]
2. Accused, viz. 'GS' who has also been convicted
u/ss 302, 376(2)(g) and 506 IPC and sentenced to undergo
8
imprisonment as awarded by trial court and affirmed by
the High Court is extended the same benefit in exercise
of jurisdiction of this Court under Article 142 of the
Constitution, and he is also directed to be released. [para
33] [827 -D-E]
T. Subramanium v. State of Tamil Nadu 2006 (1) SCR
180 = (2006) 1 sec 401 - cited.
Case Law Reference:
2006 (1) SCR 180
cited
para 12
1999 (1) sec 57
relied on
para 12
2011 (12) SCR 1173
relied on
para 12
2012 (4) SCR 366
relied on
para 12
2007 (9) SCR 44
relied on
para 12
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1279 of 2008.
c
D
E
F
From the Judgment and Order dated 05.06.2006 of the
High Court of Punjab and Haryana at Chandigarh in Crl. A. No.
716-DB of 2004.
WITH
Crl. A. No. 1280, 1281 and 1282 of 2008.
K.T.S. Tulsi, Fakhruddin (A.C.), Kuber Boddh, Kartikay
(For Arun Kumar Beriwal), Sheeba Fakhruddin, Surya Kamal
Mishra for the Appellant.
G
H
808
SUPREME COURT REPORTS
[2013) 2 S.C.R.
A
· Sanchar Anand, MG, Arun K. Sinha, Kuldip Singh for the
Respondent.
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. 1. These Criminal Appeals are
B directed against the Judgment and Order dated 05.06.2006
passed by the Punjab and Haryana High Court at Chandigarh
in Criminal Appeal No 716-DB of 2004. The Punjab and
Haryana High Court affirmed the conviction and sentence of the
accused for offences punisnable under Sections 302,
C 376(2)(g), 148, 201,404 read with Section 34 of the Indian
Penal Code with different sentences of imprisonment which will
be referred to in the later portion of the judgment to run
concurrently and fine imposed upon them. The same is under
challenge in these appeals by the appellants urging various
D grounds. However, the High Court acquitted the appellants of
the charges framed under Sections 3 and 4 of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,.
1989.
2. The appellants have prayed for allowing the appeals by
E setting aside the impugned judgment of the High Court and to
acquit them from all the charges urging various facts and
grounds in support of the questions of law framed in these
appeals.
F
For proper appreciation of rival factual and legal
submissions made by the learned counsel for the parties the
relevant facts in relation to the prosecution case are briefly
stated as under:
3. On 25.05.2000, FIR No. 73 was lodged at Police
G Station Banga, Nawanshahar on the basis of statement of
Nago Ram, S/o Munshi Ram who is relative of Seeso, the
deceased, for offences under Sections 302, 376(2) (g}, 148,
201, 404 read with Section 34 IPC alleging that on 24.05.2000
at about 9.00 a.m. the deceased went to the field to bring fodder
H and when she did not return home till afternoon, the informant
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB 809
[V. GOPALA GOWDA, J.]
along with family members of the deceased and villagers
A
started searching her but they could not gather any information.
It was alleged that on 25.05.2000 at 8.00 a.m., the informant
along with other people went to the sugarcane field searching
for the deceased where they found a fresh pit dug filled back
with earth inside which the dead body was lying buried in the
B
soil covered with a palli. It was further alleged that the gold ear
rings, silver bangles and anklets from the dead body of the
deceased were found missing. It was alleged by the informant
that Sunny Lal Paswan, the owner of the land along with threefour persons after committing the murder buried the body of the c
deceased.
4. On the basis of the registration of the said FIR the case
was investigated and report under Section 173 of the Code of
Criminal Procedure was filed before the committal court and
thereafter it has committed the case to the learned Additional
D
Sessions Judge, Nawanshahar and the case went for trial as
the accused pleaded not guilty of charges and prayed to try
them for the charges. The charges were framed for offences
punishable under Sections 302, 376(2)(g), 148, 201, 404 read
with Section 34 IPC and also under Sections 3 and 4 of the
E
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The prosecution witnesses PW-1 to PW15 were examined and the statement of evidence of the
witnesses were recorded by the learned Addi. Sessions Judge.
The learned Additional
Sessions Court has convicted the
F
accused with various sentences for different offences along with
fine as has been set out in detail in the later part of the
judgment. The same is affirmed by the High Court by passing
the impugned judgment. The correctness of the same is
challenged in these appeals by the appellants by raising certain
G
legal questions and urging grounds in support of the same.
5. It is contended by the learned senior counsel for the
appellant Mr. K.T.S. Tulsi that the High Court ignored the vital
aspect of the case, namely, PW-9 Niranjan Ram, the so-called
sole eye witness of the alleged offences who has categorically. H
810
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A stated in his evidence that on 24.05.2000 at about 10.30 a.m.
in order to ease himself, he had gone towards the eastern side
of the village where a fair was being held. In order to get his
hands washed he had gone towards the tube well, where he
heard some shrieks, and found that Seeso, wife of Bhajan Ram
8
was lying on the ground and accused Gurdeep Singh was
holding her arms, accused Balwinder Singh and Rajinder
Kumar had lifted the legs of Seeso upwards and accused
Harnek Singh was committing rape on her. Accused Sunny Lal
and Harnek were holding the arms of Seeso. Thereafter
C accused Gurdeep Singh gave a Kassi blow on the neck of
Seeso. On seeing this he shrieked. On seeing PW-9, the
accused Gurdeep Singh chased him with a Kassi in his hand
and threatened him that in case he discloses the incident in the
village, he and his family will be dealt with the same manner.
Out of fear because of the threat having been inflicted by
D Gurdeep Singh, PW-9 did not disclose the incident to any one
of the villagers or to the family members of the deceased.
6. It is urged by Mr. K.T.S. Tulsi, the learned senior counsel
for the appellant in Crl.A. No.1279 of 2008 and Mr. Fakhruddin,
E the learned senior counsel who is appearing as amicus curiae
in the connected appeals that the statement of evidence of the
witnesses narrating the offences said to have been committed
by the appellants is most unnatural and improbable to believe.
This aspect of the matter in relation to these appellants is not
F
properly appreciated by the High Court while affirming the
conviction and sentences imposed upon them by the learned
Additional Sessions judge. The learned senior counsel Mr. Tulsi
submits that the High Court placing reliance upon the testimony
of PW-9 by extracting his brief statement of evidence in the
G impugned judgment has concurred with the conviction and
sentences imposed upon the appellant by the Additional
Sessions judge and the same is erroneous on the part of the
High Court. Hence, he submits that the same is liable to be set
aside.
H
TEJINDER SINGH@ KAKA v. STATE OF PUNJAB
811
[V. GOPALA GOWDA, J.]
7. It.is further contended by the learned senior counsel that
A
the High Court has erroneously placed reliance upon the
testimony of PW-8 Chet Ram, the brother-in-law of the
deceased, who is not even an eye-witness to the incident. PW8 deposed in his evidence that he saw accused Gurdeep
Singh, Harnek Singh, Balwinder Singh, Tejinder Singh and
B
Sunny Lal Paswan carrying some heavy material in a palli and
they had placed the same in the sugarcane field. Accused
Tejinder Singh dug a pit in the field with the help of a spade
and buried the material underneath the earth. On his asking
them as to what they had done, accused Gurdeep Singh told c
that he will also be treated in the same manner and uttered the
words "Kutia Chamara Tera bhi iho hal karange". Thereafter the
accused Gurdeep Singh with a Kassi in his hand, ran towards
him. Out of fear, he ran away towards the village.
8. The learned senior counsel further submits that even
D
presuming the aforesaid witness's statement to be true, it is
· very unusual and unnatural on his part being the brother-in-law
of the deceased in not informing the incident either to the family
members or to the police. This aspect of the matter has not
been considered by the High Court thereby, it has overlooked
E
the major discrepancy in the statements of witnesses between
PW-8 and PW-9, on whose evidence the whole prosecution
case is based. PW-8 has stated in his evidence that appellant
Tejinder Singh started digging a pit while PW-9 has
categorically deposed in his evidence that accused Tejinder
F
Singh was not there at that time.
9. The deposition of the aforesaid witness creates a grave
suspicion not only regarding the appellant Tejinder Singh being
part of the conspiracy to commit offences but also his presence
G
at the place of occurrence. Non consideration of this major
discrepancy in the evidence of the aforesaid witness both by
the Trial Court as well as the High Court, has rendered the
findings on the charges erroneous in law and therefore the same
is liable to be set aside. Further, the High Court has failed to
H
812
SUPREME COURT REPORTS
[2013) 2 S.C.R.
A re-appreciate the evidence of PW-10 Krishna, who has in her
deposition, stated the names of the accused persons but she
has not named the appellant Tejinder Singh's involvement in
committing offences as alleged, which casts a major suspicion
in the statement of PW-8 Chet Ram.
B
10. It is further contended by the learned senior counsel
appearing on behalf of the appellant Tejinder Singh in Crl.A. No.
1279 of 2008 that the High Court did not follow the well
established principle of law that in appeal against the conviction,
C the appellate court has the duty to appreciate the evidence on
record and benefit of reasonable doubt has to be given to the
accused which has not been done by it. In support of this
submission, reliance is placed upon the decision of this Court
in the case of T. Subramanium v. State of Tamil Nadu1•
Further, elaborating his submission, he has urged that if two
D views are possible from the very same evidence, it cannot be
said that the prosecution had proved its case beyond
reasonable doubt. There is a grave doubt regarding the
presence of appellant Tejinder Singh at the place of occurrence,
which goes to the root of the prosecution case as far as the
E role of the appellant is concerned in committing offences as
alleged.
11. The learned senior counsel has further contended that
the High Court has erroneously accepted the evidence of
F another witness Bhupinder Singh PW-7, (the erstwhile
Sarpanch) treating him as a credible witness ignoring the
inherent improbabilities in his-statement of evidence regarding
the alleged extra judicial confession said to have been made
to him by the three accused persons other than the appellant
G in Crl.A. No.1279 of 2008 and the trial court and the High Court
having placed reliance upon the same recorded the finding that
the charge against the said appellant is proved and conviction
and sentence imposed upon him for the alleged offence. This
finding of the courts below is bad in law and is liable to be set
H
1.
(2006) 1 sec 401.
TEJINDER SINGH@ KAKA v. STATE OF PUNJAB
813
[V. GOPALA GOWDA, J.]
aside. According to the deposition of PW-7, who has deposed
A
that on 28.5.2000 accused Gurdeep Singh, Harnek Singh and
Sunny Lal Paswan made a disclosure statement to him
describing the whole incident. He has disclosed the same to
the police after 16 days of the alleged disclosure statements
said to have made to him by the said accused and he had
B
handed over the accused to police custody on 12.06.2000. The
reason regarding the delay of 16 days given by him was that
he was busy with some work and therefore, there was an
inordinate delay of 16 days in informing the incident . to the
police remains unsatisfactory on the part of the said witness c
to whom the extra judicial confession alleged to have been
made by the co-accused. This renders the conduct of PW-7
doubtful and the content of his testimony suspicious in nature.
Further, he being the Sarpanch of the village instead of taking
instant action against the accused persons who alleged to
0
have committed rape, murder and destroyed the evidence,
informed the police after a lapse of 16 days. This cannot be
believed by this Court.
12. It is further contended by him that it is pertinent to
mention that the urgency of the work with which he was busy
E
was nowhere explained by him. Learned senior counsel placed
reliance upon judgment of this Court in Dwarkadas Gehanmal
Vs. State of GujaraF in support of his legal submission that if
the conduct of the witness is inconsistent with the conduct of
an ordinary human being then his testimony has no credence
F
for acceptance. Paragraph 14 of Dwarkadas Gehanmal's case
(supra) reads as under:
"14 ........ Deva Ram PW-4 would not have waited for five
days to disclose the alleged confession made by the
G
appellant to him but on the contrary, he would have either
on the same evening gone to the police station to lodge a
complaint on the basis of the confessional statement of
appellant i=ind/or would have gone to the house of
2.
(1999) 1 sec 57.
H
814
SUPREME COURT REPORTS
[20f3) 2 S.C.R.
A
Noorbhai to inform the family members about the
confessional statement of the appellant.. .. ."
Therefore, the learned senior counsel contends that the
observations made in the above referred case would support
8 the case of the appellants herein.
Learned senior counsel has placed reliance on various
other judgments of this Court wherein extra judicial confession
was made. Relevant paragraphs will be extracted in the
appropriate reasoning portion of this judgment to appreciate
C the legal submission made by him and to set aside the
impugned judgment and to pass an order of acquittal.
13. The learned senior counsel Mr. Tulsi has relied upon
the following cases in support of his legal submissions
0 co.ntending that the same would with all fours be applicable to
the case in hand, namely, Pancho Vs. State of Haryana3,
Sahadevan & Anr. Vs. State of Tamil Nadu4 and Sukhram Vs.
State of Maharashtra5•
'
14. The learned senior counsel, Mr. Fakhruddin who is
E appearing for the appellants in the connected appeals has also
made his submissions urging the similar grounds as urged by
Mr. Tulsi, the learned senior counsel for the appellant in Crl.A.
No.1279 of 2008 regarding the evidence of PW-7 in relation
to the extra judicial confessional statement alleged to have
F made to him by some of the accused. Further, he has invited
our attention to the depositions of prosecution witnesses to
show that the findings recorded against the accused by the
courts below is not only erroneous but also suffer from error in
law and therefore the same is liable to be set aside by allowing
G the appeals.
15. On the other hand, Mr. Sanchar Anand, the learned
3.
c2011) 10 sec 165.
4.
c2012) e sec 403
H 5.
c2001) 1 sec 502.
TEJINDER SINGH@ KAKA v. STATE OF PUNJAB
815
[V. GOPALA GOWDA, J.]
Additional Advocate General for the State of Punjab, has
A
sought to justify the findings and reasons recorded on the
charges framed against the appellants herein by the courts
below. The trial court being the court of original jurisdiction, in
exercise of its power, appreciated the evidence on record and
-answered the charges levelled against the appellants and other
B
accused holding that they are guilty of the offences committed
against the deceased and accordingly after hearing them, the
learned Sessions judge has imposed sentence of
imprisonment upon the accused for different offences as
mentioned in the table which is extracted hereunder:
c
Name of
Under
Sentence
convict
Section
Gurdeep
302 IPC
Life imprisonment and fine of Rs.10,000/-
Singh
in default further RI for one year.
D
~76(2)(g)IPC Life imprisonment and fine of Rs.10,000/-
in default further RI for one year.
RI for 5 years and to pay fine of Rs.5000/
or in default further RI for 6 months.
E
506 IPC
Rajinder
302 IPC
Life imprisonment and fine of Rs.10,000/-
Kumar
in default further RI for one year.
376(2)(g)IPC Life imprisonment and fine of Rs.10,000/-
F
in default further RI for one year.
RI for 1 year and to pay fine of Rs.1000/
or in default further RI for 1 month.
404 IPC
Harnek
302 IPC
Life imprisonment and fine of Rs.10,000/-
G
Singh
in default further RI for one year.
alias Naka
.
376(2)(g)IPC Life imprisonment and fine of Rs.10,000/-
in default further RI for one year.
H
A
B
c
D
E
F
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SUPREME COURT REPORTS
[2013) 2 S.C.R.
RI for 1 year and to pay fine of Rs.1000/
or in default further RI for 1 month.
404 IPC
Balwinder 302 IPC
Life imprisonment and fine of Rs.10,000/-
Singh
in default further RI for one year.
alias
Binder
376(2)(g)IPC Life imprisonment and fine of Rs.10,000/-
in default further RI for one year.
RI for 1 year and to pay fine of Rs.1000/
or in default further RI for 1 month.
404 IPC
Sunny Lal
302 IPC
Life imprisonment and fine of Rs.10,000/-
Paswan
in default further RI for one year.
376(2)(g)IPC Life imprisonment and fine of Rs.10,000/-
in default further RI for one year.
404 IPC
RI for 1 year and to pay fine of Rs.1000/
or in default further RI for 1 month.
Tejinder
201 IPC
RI for 7 years and to pay a fine ofRs.5000/
Singh
or in default further RI for 6 months
alias Kaka
The sentences of imprisonment shall, however, run concurrently
16. It is further submitted by the learned Additional
Advocate General that the correctness of the findings and
reasons in the case recorded by the learned sessions judge
in convicting and sentencing the appellants/accused has been
G examined by the High Court in exercise of its jurisdiction after
extracting the testimony of the witnesses in the impugned
judgment and applying its mind in the backdrop of legal grounds
urged in the appeal before the High Court. The High Court has
affirmed the conviction and sentence by i'ecording the
concurrent findings of fact on the charges by assigning valid
H and cogent reasons. Therefore, the same does not call for
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB
817
[V. GOPALA GOWDA, J.]
interference by this' Court in exercise of its jurisdiction under
A
Article 136 of the Constitution of India.
17. With reference to the above factual and legal
contentions urged on behalf of the parties, this court is required
to examine as to whether the concurrent impugned findings on
B
the charges levelled against the appellants in the impugned
judgment are erroneous and require interference by this Court
and whether the conviction and sentence imposed on the
appellants on the basis of the evidence of PW-7, PW-8 and
PW-9 and other prosecution witnesses is legal and valid and
C
requires interference?
18. The aforesaid points are required to be answered in
favour of the appellants for the following reasons:
In so far as the appellant Tejinder Singh is concerned, the
0
charge is under Section 201 IPC .. He has been convicted and
·sentenced with rigorous imprisonment for 7 years and a fine
of Rs.5000/-or in default, to undergo a further rigorous
imprisonment for 6 months. This aspect of the matter is
considered by us in the backdrop of factual and legal
contentions urged by learned senior counsel Mr. Tulsi.
19. It is pertinent to refer to the case of Sukhram (supra)
in order to appreciate the scope of Section 201 IPC. The
relevant paragraphs will be extracted to appreciate his
E
contentions in the reasoning portion of the judgment.
F
20. As could be seen from the evidence of PW-8 and PW9, there is
major discrepancy between their statements of
evidence. PW-8 Chet Ram has stated in his evidence that the
appellant Tejinder Singh started digging a pit with spade in the
G
sugarcane field, whereas PW-9 has stated in his evidence that
the said appeliant was not present at that time. In view of the
major discrepancy and contradiction between the statements
of one witness and the other, it not only creates a grave
suspicion regarding the said appellant being part of the offence
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[2013) 2 S.C.R.
A but also makes his presence doubtfu·I at the place of
occurrence. Therefore the ground urged in this regard by the
learned senior counsel that the learned sessions judge in
placing reliance upon the testimony of the said witnesses and
recording the finding against the above appellant on the
B charges and passing an order of conviction and sentence
which is affirmed by the High Court is without proper
appreciation of the major discrepancy in the statements of the
above named witnesses regarding the presence of the
aforesaid appellant at the place of occurrence. The courts
c below have also failed to take into consideration the evidence
of PW-10 Krishna, wherein she had deposed in the case that
on 24.5.2000 at about 8 a.m. she along with Nimmo had gone
to take fodder from the fields. At about 9.00 a.m. when they
were coming back, they found that Surl{ly Lal was watering the
D fields. In the meantime, the deceased also entered the fields
having a jute cloth in her hands. The accused Binder and Kaka
were seen going towards the tube well. Accused Gurdeep
Singh and Harnek Singh · were also seen going on the scooter
towards the tube well side, but she has not named the appellant
Tejinder Singh. This creates a major discrepancy in the
E statements of evidence of PW-8 and PW-9 regarding the'
participation of this appellant in committing offence as alleged
against him.
21. Moreover, there is nothing substantive and positive
F evidence placed on record against the aforesaid appellant by
the prosecution to prove its case against him. Therefore, the
reliance placed in Sukhram's case (supra) regarding legal
proposition should be applied to the case in hand. It cannot be
said that the prosecution has proved its case beyond
G reasonable doubt. The benefit of doubt should have been
extended to Tej inder Singh in the impugned judgment by the
High Court while re-appreciating the evidence on record in
exercise of its jurisdiction as it has failed to notice that the ratio
laid down at para 18 in the case of Sukhram referred to supra
H that to constitute an offence under Section 201 IPC the following
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB
819
[V. GOPALA GOWDA, J.]
four ingredients viz. (i) to (iv) have to be established:
"18 ............. To bring home an offence under Section 201
IPC, the ingredients to be established are: (i) committal
A
of an offence; (ii) person charged with the offence under
Section 201 must have the knowledge or reason to believe
8
that an offence has been committed; (iii) person charged
with the said offence should have caused disappearance
of evidence; and (iv) the act should have been done with
the intention of screening the offender from legal
punishment or with that intention he should have given
C
information respecting the offence, which he knew or
believed to be false. It is plain that the intent to screen the
offender committing an offence must be the primary and
sole aim of the accused. It
hardly needs any emphasis
that in order to bring home an offence under Section 201
IPC, a mere suspicion is not sufficient. There must be on
D
record cogent evidence to prove that the accused knew
or had information sufficient to lead him to believe that the
offence had been committed and that· the accused has
caused the evidence to disappear in order to screen the
offender, known or unknown.
E
19. In Palvinder Kaur v. State of Punjab this Court had
said that in order to establish the charge under Section
F
201 IPC, it is essential to prove that an offence has been
committed; that the accused knew or had reason to
believe that. such offence had been committed; with
requisite knowledge and with the. intent to screen the
offender from. legal punishment,. caused the evidence
thereof to disappear or gave false information respecting
such offence knowing or having reason to believe the
G
same to be false. It was observed that the court should
safeguard itself against the danger of basing its conclusion
on suspicions, however, strong they may be. (Also see
Suleman Rahiman Mulani v. State of Maharashtra,
Nathu v. State of U.P, V.L. Tresa v. State of Kera/a.)"
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SUPREME COURT REPORTS
[2013) 2 S.C.R.
A
22. For the reasons stated supra we have to record a
finding in this judgment that there is major discrepancy in the
testimony of witnesses PW-8 and PW-9 and also registration
of FIR on the basis of information furnished by the informant.
The FIR was registered, investigation was made and charge
B sheet was filed and the appellant was tried for the charges as
he had pleaded not guilty and the Sessions Court convicted and
sentenced him for the offence. This finding is erroneous in law
for the reason that the statement of evidence of the prosecution
witnesses referred to supra has raised serious suspicion and
c doubt. Therefore, the same must be extended to the other
appellants.
23. Further, the learned senior counsel has rightly placed
reliance upon the testimony of PW-7 to whom, according to him,
the accused persons namely, Gurdeep Singh, Hamek Singh
D and Sunny Lal Paswan, co-accused, made a disclosure
statement describing the whole incident to him on 12.06.2000 ·
who has neither recorded the alleged extra judicial confession
nor made the disclosure of the said statement within reasonable
time but 16 days to disclose the extra judicial confessions made
E by the accused persons to inform to the jurisdictional police.
The delay in informing the police regarding the extra judicial
confessional statement alleged to have made to him by some
of the accused has not been explained by PW-7 and the reason
sought to be given by him for non disclosure of the same to
F the police cannot be accepted by this Court as it is not natural
and also not satisfactory. Further, the learned senior counsel
Mr. Tulsi has rightly placed reliance upon the judgment of this
Court in Dwarkadas Gehanma/'s case (supra) with regard to
the conduct of the witness in the said case which is inconsistent
G with the conduct of an Qrdinary human being. The observations
made in the abovementioned case with all fours applicable to
the facts situations of the case in hand, that if extra judicial
confessional statement was made by the accused as stated
by him in his statement before the trial court were to be true, it
H was his duty to disclose the same immediately to the police or
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB
821
[V. GOPALA GOWDA, J.]
to the relatives of the deceased. That has not been done by
A
him and therefore his evidence is not believable.
24. The extra judicial confession is a weak form of evidence
and based on such evidence no conviction and sentence can
be imposed upon the appellants and other accused. In support
8
of this proposition, the relevant paragraphs of Panr:;ho's case
are extracted hereunder:
"16. The extra-judicial confession made by A-1, Pratham
is the main plank of the prosecution case. It is true that an
extra-judicial confession can be used against its maker,
C
but as a matter of caution, courts look for corroboration to
the same from other evidence on record. In Gopa/ Sah v.
State of Biharthis Court while dealing with an extra-judicial
confession held that an extra-judicial confession is on the
face of it, a weak evidence and the courts are reluctant, in
D
the absence of a chain of cogent circumstances, to rely
on it for the purpose of recording a conviction. We must,
therefore, first ascertain whether the extra-judicial
confession of A-1, Pratham inspires confidence and then
find out whether there are other cogent circumstances on
E
record to support it."
25. This Court further noted that: (Kashmira Singh case,
AIRp.100,~ra1~
F
"10. . . . cases may arise where the Judge is not
prepared to act on the other evidence as it stands
even though, if believed, it would be sufficient to
sustain a conviction. In such an event, the Judge
G
may call in aid the confession and use it to lend
assurance to the other evidence and thus fortify
himself in believing what without the aid of the
confession, he would not be prepared to accept.•
H
A
B
c
D
E
F
G
H
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SUPREME COURT REPORTS
[2013] 2 S.C.R.
27. This Court in Haricharan case further observed that
Section 30 merely enables the court to take the confession
into account. It is not obligatory on the court to take the
confession into account. This Court reiterated that a
confession cannot be treated as substantive evidence
against a co-accused. Where the prosecution relies upon
the confession of one accused against another, the proper
approach is to consider the other evidence against such
an accused and if the said evidence appears to be
satisfactory and the court is inclined to hold that the said
evidence may sustain the charge framed against the said
accused, the court turns to the confession with a view to
assuring itself that the conclusion which it is inclined to.
draw from the other evidence is right."
. Further, relevant paragraphs from Sahadevan's case are
extracted hereunder:
"14. It is a settled principle of criminal jurisprudence
that extra-judicial confession is a weak piece of
evidence. Wherever the court, upon due
appreciation of the entire prosecution evidence,
intends to base a conviction on an extra-judicial
confession, it must ensure that the same inspires
confidence and is corroborated by other
prosecution evidence. If, however, the extra-judicial
confession suffers from material discrepancies or
inherent improbabilities and does not appear to be
cogent as per the prosecution version, it may be
difficult for the court to base a conviction on such a
confession. In such circumstances, the court would
be fully justified in ruling such evidence out of
consideration.
TEJINDER SINGH @ KAKA v. STATE OF PUNJAB
823
[V. GOPALA GOWDA, J.]
16. Upon a proper analysis of the above referred judgments
A
of this Court, it will be appropriate to state the principles
which would make an extra-judicial confession an
admissible piece of evidence capable of forming the basis
of conviction of an accused. These precepts would guide
the judicial mind while dealing with the veracity of cases
B
where the prosecution heavily relies upon an extrajudicial
confession alleged to have been made by the accused:
(i} The extra-judicial confession is weak evidence
by itself. It has to be examined by the court with
C
greater care and caution.
(ii} It should be made voluntarily.