STATE OF PUNJABversusBITTU &ANR. ETC. ETC.

                   (2015] 10 S.C.R. 1121


                    STATE OF PUNJAB                              A
                              v.
                 BITTU &ANR. ETC. ETC.
          (CriminalAppeal Nos.548-551 of2013)
                                                                 B
                   DECEMBER 16, 2015
 [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.)
     Penal Code, 1860- ss.1208, 302 and 201 rlw. s.34 -
Prosecution under - Of five accused - Conviction by trial c
court relying on testimony of the eye-witnesses (PWs 5, 6
and 7), the medical evidence and the motive as established
by PW7 - High Court acquitted the accused - On appeal,
held: The prosecution has failed to prove its case beyond
reasonable doubt - the testimonies of PWs 5 and 7 as eye- D
witnesses are highly doubtful - Though the motive is
established by PW7, but the motive alone cannot be sufficient
to convict the accused - Even the medical evidence does
not support the prosecution version - The accused are
entitled to be acquitted.                                     E

    Evidence - Motive- Evidentiary value of- Held: Motive
alone cannot be sufficient to convict an accused, as it is not
substantive evidence and is merely corroborative in nature.
                                                                 F
       Dismissing the appeals, the Court

     HELD: 1. PW-2 and the complainant PW-6 were
eyewitnesses as per the prosecution story. But they
failed to support the prosecution case as they turned
hostile during the trial. In cross-examination, the G
complainant did not own up any part of the previous
statement which led to the FIR except that part where he
had named four of the accused persons to the Police.
PW-2 was the real maternal uncle of the deceased and H
                          1121
1122      SUPREME COURT REPORTS               [2015] 10 S.C.R.


 A was alleged to have been present as an eye-witness
   during the incident, as per the FIR. It is unnatural for him
   not to have come to the rescue of his nephew even when
   he had identified him as the victim. Thus, the two main
   eye-witnesses turned hostile and did not support the
 B case of the prosecution. [Para 9] [1126-G; 1127-C-E]

       2. The statements of PW-5 lead to an inference that
   his presence was doubtful. PW-5 was the real maternal
   uncle of the deceased and on seeing the deceased being
 C thrown by the accused, he did not even bother to check
   whether the deceased was dead or alive. Also, the fact
   that he did not meet the police for 3 hours is a strange
   fact considering that his n~phew had died. [Para 10]
   [1128-A-B]
 D
        3. Even if the motive is clearly established, PW-7 was
   admittedly the friend of the deceased. Neither he was
   named in the FIR nor did he care to warn the deceased
   or tiis family members of the conspiracy that he had
 E overheard. This makes his conduct highly unnatural and
   his presence doubtful at the place of incident. [Para 11]
   [1128-E-G]

       4. The prosecution failed to prove its case on one
 F more aspect. The prosecution alleged that the medical
   evidence corroborates their story. But the testimony of
   the doctor-PW-1, who did the medical examination of the
   deceased, does not support this fact. [Para 12)
   (1128-H; 1129-A)
 G
       5. All the circumstances lead to the inference that
   the prosecution has failed to bring home its case. The
   testimonies of PW-5 and PW-7 are highly doubtful and
   do not inspire confidence. Though the motive has been
 H well established by the testimony of PW-7, but it alone
     STATE OF PUNJAB v. BITTU &ANR. ETC. ETC.                  1123


cannot be sufficient to convict the accused as it is not A
substantive evidence and is merely corroborative in
nature. Even the medical evidence fails to support the
prosecution version. Thus, the conviction of the accused
cannot be sustained. [Para 13] [1129-D-E]
                                                         B
    CRIMINAL APPELLATE JURISDICTION: CRIMINAL
APPEAL Nos. 548-551 of2013
    From the Judgment and Order dated 11.08.2011 of the
High Court of Punjab & Haryana at Chandigarh in D-341, 407,
607 & 772-DB of 2004                                           C
    Jayant K. Sud, Addi. AG, Punjab, Jasleen Chahal, Asstt.
AG, Punjab, Huney Khanna, Kuldip Singh for the Appellant.
    S. K. Bhattacharya, Niraj Bobby Paonam, Th. I. B. Singh,
Satyajeet Kumar, Rajat Sharma, Subhasish Bhowmick for the      D
Respondents.
    The Judgment of the Court was delivered by
     PINAKI CHANDRA GHOSE, J. 1.These appeals by
special leave have been directed against the judgment and      E
order dated 11.8.2011 passed by the High Court of Punjab
and Haryana at Chandigarh in Criminal Appeal No. D-341,
407, 607 and 772 of 2004 whereby the High Court allowed
the criminal appeals filed by the respondents herein and
acquitted them from offence punishable under Section 302,      F
364, 201, 120B of the Indian Penal Code, 1860 [hereinafter
referred to as "IPC"].
     2. The brief facts necessary to dispose of these appeals
are that on 9.10.2002, a police party headed by SHO G
Jaswinder Singh, along with other police officials, was on
patrolling duty in the area of truck union, Bhawanigarh. The
complainant Gurdip Singh son of Arjan Singh, resident of
Village Kasba Bharawal, Police Station Malerkotla came there
and got his statement recorded with the SHO Jaswinder Singh, H
1124         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


 A     to the following effect: That on the preceding night at about
       2:00 a.m., when he was performing his duty at the Dera Kar
       Sewa, Balad Crossing, Bhawanigarh, he saw the accused
       persons Bittu, Neetu, Tony, Jagdeep @ Michu and Ashok
       Kumar@ Rocky (deceased), who were known to him, coming
 B     towards the Dera from Bhawanigarh side. In the meantime,
       Harkesh Kumar (PW-2) who was a resident of Bhawanigarh
       also came there. Bittu, Neetu, Tony and Michu threw Ashok
       Kumar (the deceased) on the floor and placed a big stone on
       his chest. They forcibly closed his nose and mouth after which
 C     Ashok Kumar became unconscious. Thereafter, the accused
       persons dragged him towards the main road, where his clothes
       were removed and they stuffed his mouth with soil. The
       complainant and Harkesh Kumar asked the accused persons
       not to do so. Shortly after that, accused Jaswant Singh also
 0
       came there on a Maruti Car bearing No. PB-34/1110. He along
       with other accused, loaded the body of Ashok Kumar in the
       car on the pretext that they were going to admit him in the Civil
       Hospital, Bhawanigarh. They threatened the complainant and
 E     Harkesh Kumar with dire consequences, if they disclosed the
       incident to anybody. In the next morning, the complainant and
       Harkesh ~umar came to know that the dead body of Ashok
       Kumar and his clothes were lying on the road near the Dera of
       Baba Sham Giri. Upon this statement of the complainant, a
 F     formal FIR w~s recorded.

        3. After investigation the Police filed its report and the
   prosecution presented the challan against the accused persons
   in the Court of Additional Chief Judicial Magistrate, Sangrur,
 G on 2.1.2003. Thereafter, the case was committed to the Court
   of Sessions Judge, Sangrur. After considering the material on
   record and hearing the prosecution and defence, charges
   under Sections 120-B, 364, 302 and 201 of the Indian Penal
   Code were framed, read over and explained to the accused
 H persons who pleaded not guilty and claimed for trial.
      STATE OF PUNJAB v. BITTU &ANR. ETC. ETC.                      1125
            [PINAKI CHANDRA GHOSE, J.]

      4. The Trial Court by its judgment and order dated            A
19.3.2004, convicted the accused/respondents and sentenced
them as follows: Bittu, Neetu, Tony and Jagdeep Singh were
convicted under Section 302 IPC and sentenced to undergo
life imprisonment and pay a fine of Rs.10,000/-each, in default
whereof they were directed to undergo further R. I. for one year    B
each. They were further sentenced to undergo R.I. for 10 years
and R.I. for 5 years under Sections 364 and 120-B of the IPC,
respectively, and pay a fine of Rs.2,000/-and Rs.1,000/-each,
with default clauses. They were further sentenced to undergo
R.I. for 3 years under Section 201 IPC and to pay a fine of         C
Rs.1,000/- each, in default whereof each of them were to
undergo R.I. for 3 months. Accused Jaswant Singh was
sentenced to undergo R.I. for 3 years under Section 120-B of
IPC and to pay a fine of Rs. 1,000/- in default whereof he was
                                                                    0
to undergo further R.I. for 3 months.

      5. Aggrieved by the judgment and order dated 19.3.2004
passed by the Trial Court, the accused persons challenged
their conviction by filing criminal appeals before the High Court
of Punjab and Haryana at Chandigarh, being Criminal Appeal          E
Nos. D-341, D-407, D-607 and D-341 of 2004. The High Court
by the impugned judgment and order allowed the appeals on
the ground that the prosecution failed to prove the chain of
circumstances enough to connect all the accused with the            F
alleged offence and, consequently the respondents were set
at liberty. The State of Punjab is, thus, before us in appeal
against the acquittal of the accused persons, who are
respondents in the present appeals.

     G. Mr. Jayant K. Sud, learned Additional Advocate ~eneral G
appearing for the State of Punjab, has inter alia submitted that
the judgment of the Trial Court is well reasoned and well
considered. He has submitted last seen theory, motive, recovery
and corroboration by medical evidences as the grounds for H
1126         SUPREME COURT REPORTS                 [2015] 10 S.C.R.


 A     proving the guilt of the accused. He assailed the reasoning
       given by the High Court in coming to a wrong conclusion i.e.
       the innocence of the accused. The Learned counsel appearing
       for the accused-respondents has vehemently rebutted the
       grounds argued by the learned Additional Advocate General.
 B
            7. The Trial Court convicted the accused respondents on
       the basis of the prosecution story relying upon the following
       circumstantial evidences:-

 c          i. Testimony of eyewitnesses Narain Dass (PW-5),
            Gurdeep Singh (PW-6) and Kashmir Chand (PW-7), is
            natural and there is no enmity between them and the
            accused persons.

            ii. The medical evidence corroborates the statements of
 D
            Narain Dass (PW-5) and Kashmir Chand (PW-7).

            iii. Motive has been proved by the testimony of Kashmir
            Chand (PW-7).

 E          8. The High Court pointed out serious lacunae in the above
       said evidences which were considered by the trial court in
       convicting the accused and hence the conviction order was
       set aside as the necessary benefit of doubt was given to the
       accused.
 F
         9. We have perused the oral and documentary evidences ·
   on record. We shall now examine each and every contention
   in light of the arguments adduced before us in the Court.
   Harkesh Kumar (PW-2) and the complainant Gurdip Singh
 G (PW-6) were eyewitnesses as per the prosecution story. But
   they faned to support the prosecution case as they turned hostile
   during the trial. Gurdip Singh had made a statement to the
   police regarding the FIR on the basis of which the case was
   registered. But when he appeared before the Court as PW-6,
 H he testified that he heard some commotion at around 2:00
     STATE OF PUNJAB v. BITTU &ANR. ETC. ETC.                     1127
           [PINAKI CHANDRA GHOSE, J.]

a.m. on the date of incident and when he came down to the         A
main road he found a crowd of about 14-15 persons. He also
stated that he saw a person lying unconscious and did not
know who that person was. He saw 4-5 persons putting the
body of that person in the car and taking him towards
Bhawanigarh. He denied of having been acquainted to the           B
accused and also stated that he could not say whether the
accused appearing in the court were the same persons he
saw that night. In cross-examination, he did not own up any
part of the previous statement which led to the FIR except that
part where he had named Bittu, Neetu, Jagdeep and Tony as         C
the accused persons to the Police. Harkesh Kumar (PW-2)
failed to support the prosecution case and was declared
hostile. He was admittedly, the real maternal uncle of the
deceased and was alleged to have been present as an               D
eyewitness during the incident, as per the FIR. It is unnatural
for him not to have come to the rescue of his nephew even
when he had identified him as the victim. Thus, the two main
eyewitnesses turned hostile and did not support the case of
the prosecution.                                                  E
     10. The next aspect for consideration before us is the
statement of Narain Dass (PW-5). He stated in his testimony
that he, along with one Sita Ram, had come to Shiv Mandir,
Bhawanigarh, for paying obeisance at around 6:00 a.m. and
had witnessed the silver coloured Maruti car bearing No. PB- F
34-1110 outside that Mandir. The said car was being driven
by Neetu and all the five accused persons were present in the
car and they stopped the car and threw the dead body of the
deceased near a truck which was parked there. They also threw G
the clothes of the deceased. He admitted that the deceased
was his real nephew (bhanja). He also stated that after chasing
the accused when he failed to get hold of them, he went back
home. He did not meet the police from 6:00 a.m. to 9:00 a.m.
that day. He also stated that at 6:00 a.m. on that morning, there H
1128         SUPREME COURT REPORTS                 [2015] 1OS.C.R.


 A     may be some darkness. His statements thus lead to an
       inference that his presence was doubtful. PW-5 was the real
       maternal uncle of the deceased and he did not even bother to
       check whether the deceased was dead or alive. Also, the fact
       that he did not meet the police for 3 hours is a strange fact
 B     considering that his nephew had died. The High Court has
       discussed in great volume the discrepancies in the evidence
       of PW-5 and the time gap between his seeing the accused
       and his meeting the police, as per his allegation. It makes the
       statement of PW-5 highly doubtful.
 c
         11. The next incriminating fact is the motive behind the
   crime as has been established by the testimony of Kashmir
   Chand (PW-7). He stated that on 8.10.2002 at about 8:00 p.m.
   he had gone to see Ram Leela in Grain Market, Bhawanigarh
 D and had seen the five accused persons conspiring with one
   another about finishing Ashok Kumar, because he was not
   agreeing to remove his fruit Rehri from the front of the meat
   shop of Bittu and Nitu. He also stated that he saw the accused
   beating and sitting upon the deceased at about 2:30 a.m. at
 E night. Even if the motive is clearly established, the fact that
   PW-7 was admittedly the friend of the deceased, he ought to
   have warned the deceased about such plans of the accused.
   PW-7 stated that he had gone to see Ram Leela and came
   back after 15-20 minutes to his house, had his meals and later
 F left the house at around 2:00 a.m. Neither he was named in
   the FIR nor did he care to warn the deceased or his family
   members of the conspiracy that he had overheard. This makes
   his conduct highly unnatural and his presence doubtful at the
   place of incident. Thus, his statement merely establishes the
 G motive of the accused.
        12. The prosecution failed to prove its case on one more
   aspect. The prosecution alleged that the medical evidence
   corroborates their story. But the testimony of Dr. Sanjeev Jindal
 H (PW-1), who did the medical examination of the deceased,
      STATE OF PUNJAB v. BITIU &ANR. ETC. ETC.                       1129
            [PINAKI CHANDRA GHOSE, J.]

do~s not support this fact. He stated that the internal injuries of A
the deceased were such that they may have been caused by
a heavy stone kept on the chest, but he did not clearly establish
the same, in his opinion. He merely said that the possibility
cannot be ruled out. Also, if the incident occurred in the manner
stated in the FIR, sufficient quantity of soil should have been B
found in the mouth of the deceased but PW-1 has categorically
stated in his testimony that no soil was found in the mouth of
the deceased. He had merely found some dust sticking to the
face of the deceased which could be caused by merely
throwing the dead body on the ground or even on a metalled C
road which is dust free.

     13. All the above circumstances lead to the inference that
the prosecution has failed to bring home its case. It appears
that the testimonies of Narain Dass (PW-5) and Kashmir D
Chand (PW-7) are highly doubtful and do not inspire
confidence. Though the motive has been well established by
the testimony of PW-7, but it alone cannot be sufficient to
convict the accused as it is not substantive evidence and is
merely corroborative in nature. Even the medical evidence fails E
to support the prosecution version. Thus, the conviction of the
accused cannot be sustained.

     14. In the light of the above discussion, we find no grounds
to interfere with the judgment passed by the High Court. The         F
appeals are, accordingly, dismissed.

Kalpana K. Tripathy                             Appeals dismissed.