REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1699 of 2007

Paramjeet Singh @ Pamma …Appellant

Versus

State of Uttarakhand        …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been filed against the judgment and order dated  

30.4.2004,  passed  by  the  High  Court  of  Uttarakhand  at  Nainital,  

dismissing  the  Criminal  Appeal  No.1767  of  2001  against  the  

judgment and order of the Sessions Court dated 9.8.2001 in Sessions  

Case No.254 of 2000 convicting the appellant under Sections 302 and  

307 of  the  Indian Penal  Code,  1860 (hereinafter  called `IPC’)  and  

sentencing  him  to  life  imprisonment  and  10  years  rigorous  

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imprisonment respectively.  The Sessions Court had also imposed a  

fine of Rs.10,000/-, failing which the appellant has to undergo another  

3 years rigorous imprisonment.   

2. The facts and circumstances giving rise to this case are that an  

FIR  was  lodged  on  27.4.2000  at  6.40  P.M.  with  Police  Station,  

Rudrapur, by complainant Ajit Singh (PW.1) alleging that his grand  

father  Hardayal  Singh  had  given  certain  shares  in  his  immovable  

properties to his three sons, namely, Gopal Singh, Joginder Singh and  

Mahender Singh and denied a share to his father Inderjit Singh and  

uncle Paramjit  Singh, the appellant.  The appellant had fraudulently  

sold a plot at Rudrapur and to prevent him from repeating such act,  

appellant’s  father  Hardayal  Singh  executed  a  General  Power  of  

Attorney, as well as a Will, dated 27.04.2000 in respect of one of his  

properties  in favour of the complainant’s father,  Inderjit  Singh and  

thus, the appellant became annoyed. The appellant misbehaved with  

his father Hardayal Singh and brother Inderjit Singh and threatened  

them with  dire  consequences,  at  the  office  of  the  Sub-Registrar  at  

Kichcha.   

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3. On the same day in the evening at 5.45 P.M., the complainant  

Ajit  Singh (PW.1),  his  father  Inderjit  Singh and brothers  Surender  

Singh,  Saranjit  Singh  alongwith  Satwant  Singh  and  Gurmit  Singh  

went  to  drop  Hardayal  Singh  at  his  residence  in  Matkawali  Gali.  

When they were alighting from the car, the appellant Paramjit Singh  

and two or three of his associates were sitting there.  The appellant,  

with  an  intention  to  kill  them,  started  firing.   Thus,  complainant’s  

father Inderjit Singh, his brothers Surender Singh and Saranjit Singh,  

died on the spot and complainant Ajit Singh (PW.1), his brother Baljit  

Singh (PW.2) and his grand-father Hardayal Singh got injured.  The  

incident  was  witnessed  by  Gurmit  Singh  (PW.3),  Satwant  Singh  

(PW.4)  and  cousins  of  complainant  Ajit  Singh  (PW.1),  Rajinder  

Kumar (PW.5), Harpal Singh (PW.6) and Hira Lal (PW.7).   

4. The Investigating Officer recovered and prepared the Seizure  

Memos of plain soil, blood soaked soil, three empty cartridges and a  

turban.  The dead bodies of the aforesaid three persons were recovered  

vide Panchnama and postmortems were conducted on the bodies of all  

the three deceased on 28.4.2000 in the Base Hospital, Haldwani.  The  

other injured persons, namely, Ajit Singh (PW.1), Baljit Singh (PW.2)  

and Hardayal Singh were examined medically.   

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5. During the investigation on 4.5.2000, the Investigating Officer  

recovered the licensed Gun of the appellant, on the disclosure made  

by  appellant  himself,  from  an  Arms  Dealer  at  Rampur  and  the  

recovery memo and site plan of the place of recovery was prepared.  

The empty cartridges and recovered Gun were sent to the Forensic  

Science Laboratory, Agra and other materials e.g., blood soaked soil  

and the clothes etc. of the deceased were also sent to FSL, Agra for  

chemical analysis.   

6. The  Investigating  Officer  completed  the  investigation  and  

submitted  the  charge-sheet  against  the  appellant.   He  denied  the  

charges and claimed trial.  The prosecution examined 8 witnesses to  

substantiate  its  case  before  the  trial  Court.   Out  of  8  witnesses,  7  

turned  hostile.   After  conclusion  of  the  trial,  the  learned  Sessions  

Court vide its judgment and order dated 9.8.2001 found the appellant  

guilty of the offences punishable under Sections 302 and 307 IPC and  

awarded the sentences mentioned hereinabove.

7. Being  aggrieved,  the  appellant  preferred  Criminal  Appeal  

No.1767 of 2001 before the High Court of Uttarakhand at Nainital  

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which has been dismissed vide impugned judgment and order dated  

30.4.2004.  Hence, this appeal.

8. Shri  S.R.  Bajwa,  learned  senior  counsel  appearing  for  the  

appellant,  has  submitted  that  out  of  8  witnesses  examined  by  the  

prosecution,  7  turned  hostile  and  none  of  them  deposed  that  the  

appellant  had  committed  any  offence.   The  Investigating  Officer  

remained the only witness in the trial who had not turned hostile.  The  

gun  was  allegedly  recovered  at  the  disclosure  of  the  appellant  as  

required but it was not in consonance with Section 27 of the Indian  

Evidence Act, 1872, on the basis of which the recovery of the Gun  

could be proved.  The trial Court as well as the High Court erred in  

convicting  the  appellant  as  none  of  the  alleged  pieces  of  

circumstantial  evidence  could  be  proved  by  the  prosecution.   The  

courts  below  committed  an  error  in  accepting  the  inadmissible  

evidence e.g., confession before Police official; contents of statement  

recorded  under  Section  161  of  Code  of  Criminal  Procedure,  1973  

(hereinafter called `Cr.P.C.’); using the FIR as a substantial piece of  

evidence;  and  recovery  of  12  Bore  Gun  from an  Arms  Dealer  at  

Rampur  on  the  disclosure  of  the  appellant  and  held  the  appellant  

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guilty.  No witness was examined to prove that the material collected  

by the Investigating Officer had been placed in safe custody in the  

Malkhana; the Register maintained by the arms dealer at Rampur had  

not  been  produced  before  the  court  nor  had  the  arms  dealer  been  

examined.  None of the relevant incriminating pieces of circumstantial  

evidence had been put to the appellant by the court while examining  

him under Section 313 Cr.P.C.  The circumstances of the absconding  

of  the  appellant  for  6  days  had been taken to  show him as  guilty  

person.  In spite of the fact that a compromise by Panchayat was not  

proved before the trial Court, it had been used against the appellant.  

More so, no motive or genesis of occurrence could be established on  

the record of the case.  The conviction is totally based on conjectures  

and surmises, thus, liable to be set aside.

9. Per contra, Shri Sunil Kumar Singh, learned counsel appearing  

for  the  State  of  Uttarakhand  has  vehemently  opposed  the  appeal  

contending that appellant had been found guilty of committing murder  

of 3 members of his own family and injuring 3 other family members.  

The  informant  Ajit  Singh  (PW.1)  and  Baljit  Singh  (PW.2)  have  

admitted  that  they  were  present  at  the  place  of  occurrence.   They  

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suffered injuries but denied the involvement of the appellant in the  

crime altogether.  The other eye-witnesses even denied their presence  

at the place of occurrence itself.  In such a fact-situation, where all the  

witnesses  had  been  won over  by  the  appellant,  as  the  family  had  

pardoned  the  appellant,  the  case  otherwise  stood  proved  by  

circumstantial evidence. The courts below have rightly convicted the  

appellant.  All relevant questions had been put to the appellant under  

Section  313  Cr.P.C.,  and  the  appellant  could  not  explain  his  

whereabouts at the time of occurrence of the incident.  The case of the  

prosecution has duly been supported by the medical evidence as well  

as the other material collected by the Investigating Officer during the  

investigation.  The appeal lacks merit and is liable to be dismissed.

10. We have considered the rival submissions made by the learned  

counsel for the parties and perused the record.

          The case is to be decided keeping in mind that as all the seven  

eye-witnesses turned hostile and none of them involved the appellant  

in the crime, it remained a case of circumstantial evidence.   

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Legal Issues

Standard of Proof:

11. A criminal trial is not a fairy tale wherein one is free to give  

flight to one’s imagination and fantasy. Crime is an event in real life  

and is the product of an interplay between different human emotions.  

In arriving at a conclusion about the guilt of the accused charged with  

the commission of a crime, the court has to judge the evidence by the  

yardstick  of  probabilities,  its  intrinsic  worth  and  the  animus  of  

witnesses.  Every case,  in the  final  analysis,  would have to depend  

upon its own facts. The court must bear in mind that “human nature is  

too  willing,  when  faced  with  brutal  crimes,  to  spin  stories  out  of  

strong suspicions.” Though an offence may be gruesome and revolt  

the  human conscience,  an  accused  can  be  convicted  only  on  legal  

evidence and not on surmises and conjecture. The law does not permit  

the court to punish the accused on the basis of a moral conviction or  

suspicion alone.  “The burden of proof in a criminal trial never shifts  

and it is always the burden of the prosecution to prove its case beyond  

reasonable doubt on the basis of acceptable evidence.” In fact, it is a  

settled principle of criminal jurisprudence that the more serious the  

offence, the stricter the degree of proof required, since a higher degree  

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of  assurance  is  required  to  convict  the  accused.  The  fact  that  the  

offence was committed in a very cruel and revolting manner may in  

itself be a reason for scrutinizing the evidence more closely, lest the  

shocking nature of  the  crime induce an instinctive  reaction against  

dispassionate judicial scrutiny of the facts and law. (Vide : Kashmira  

Singh v.  State of Madhya Pradesh,  AIR 1952 SC 159;   State of  

Punjab v. Jagir Singh Baljit  Singh & Anr.,  AIR 1973 SC 2407;  

Shankarlal Gyarasilal Dixit v. State of Maharashtra, AIR 1981 SC  

765; Mousam Singha Roy & Ors. v. State of West Bengal, (2003)  

12 SCC 377; and Aloke Nath Dutta & Ors. v. State of West Bengal,  

(2007) 12 SCC 230).

12. In Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957  

SC 637, this Court observed :  

“Considered as a whole the prosecution story may  be true; but between ‘may be true’ and ‘must be  true’ there is inevitably a long distance to travel   and the whole of this distance must be covered by  legal,  reliable  and  unimpeachable  evidence   [before an accused can be convicted].”

13. Thus,  the law on the point  may be summarised to the effect  

that in a criminal trial involving a serious offence of a brutal nature,  

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the court should be wary of the fact that it is human instinct to react  

adversely to the commission of the offence and make an effort to see  

that such an instinctive reaction does not prejudice the accused in any  

way. In a case where the offence alleged to have been committed is a  

serious  one,  the  prosecution  must  provide  greater  assurance  to  the  

court that its case has been proved beyond reasonable doubt.  

Circumstantial Evidence:

14. Though  a  conviction  may  be  based  solely  on  circumstantial  

evidence,  this  is  something that the court  must  bear in mind while  

deciding a case involving the commission of a serious offence in a  

gruesome  manner.  In  Sharad  Birdhichand  Sarda v.  State  of  

Maharashtra, AIR 1984 SC 1622, this Court observed that it is well  

settled that the prosecution’s case must stand or fall on its own legs  

and cannot derive any strength from the weakness of the defence  

put up by the accused. However, a false defence may be called into  

aid only to lend assurance to the court where various links in the chain  

of  circumstantial  evidence  are  in  themselves  complete.  This  Court  

also discussed the nature, character and essential proof required in a  

criminal case which rests on circumstantial evidence alone and held as  

under:

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(1)  The  circumstances  from which  the  conclusion  of  

guilt is to be drawn should be fully established;

(2)  The  facts  so  established  should  be  consistent  only  

with the hypothesis of the guilt of the accused, that is to  

say,  they  should  not  be  explainable  on  any  other  

hypothesis except that the accused is guilty;

(3) The circumstances should be of a conclusive nature  

and tendency;

(4) They should exclude every possible hypothesis except  

the one to be proved; and

(5) There must be a chain of evidence so complete as not  

to  leave  any  reasonable  ground  for  the  conclusion  

consistent  with the innocence of the accused and must  

show that in all human probability the act must have been  

done by the accused.                            

15. A similar  view has been reiterated by this Court  in  State of  

Uttar  Pradesh v.  Satish,  (2005)  3  SCC  114;  Krishnan v.  State  

represented by Inspector of Police,  (2008) 15 SCC 430;  Ramesh  

Bhai  &  Anr. v.  State  of  Rajasthan,  (2009)  12  SCC  603;  

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Subramaniam v. State of Tamil Nadu & Anr., (2009) 14 SCC 415;  

and Babu v. State of Kerala, JT 2010 (8) SC 560, observing that the  

evidence produced by the prosecution should be of such a nature that  

it makes the conviction of the accused sustainable.

Hostile Witness:

16. In  State of Gujarat v.  Anirudhsing, (1997) 6 SCC 514, this  

Court observed as under :

“Every criminal  trial  is  a  voyage in quest  of   truth  for  public  justice  to  punish  the  guilty  and  restore peace,  stability  and order in the society.   Every  citizen  who  has  knowledge  of  the   commission of cognizable offence has a duty to lay   information before the police and cooperate with   the investigating officer who is enjoined to collect   the  evidence  and  if  necessary  summon  the  witnesses to give evidence. He is further enjoined  to adopt scientific and all fair means to unearth   the real offender, lay the charge-sheet before the  court competent to take cognizance of the offence.   The  charge-sheet  needs  to  contain  the  facts   constituting the offence/s charged. The accused is   entitled to a fair trial. Every citizen who assists the   investigation  is  further  duty-bound  to  appear   before the Court of Session or competent criminal  court, tender his ocular evidence as a dutiful and  truthful citizen to unfold the prosecution case as  given in his statement. Any betrayal in that behalf   is  a  step  to  destabilise  social  peace,  order  and  progress.”

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17. The fact that the witness was declared hostile at the instance of  

the public prosecutor and he was allowed to cross examine the witness  

furnishes  no  justification  for  rejecting  en  bloc  the  evidence  of  the  

witness. However, the court has to be very careful, as prima facie, a  

witness  who  makes  different  statements  at  different  times,  has  no  

regard for the truth.   His evidence has to be read and considered as a  

whole with a view to find out whether any weight should be attached  

to it.   The court  should be slow to act on the testimony of such a  

witness; normally, it should look for corroboration to his testimony.  

(Vide : State of Rajasthan v. Bhawani & Anr., (2003) 7 SCC 291)

18. This  Court  while  deciding  with  the  issue  in  Radha Mohan  

Singh @ Lal Saheb & Ors.  v. State of U.P.,  (2006) 2 SCC 450,  

observed as under:  

“…..It  is  well  settled  that  the  evidence  of  a   prosecution  witness  cannot  be  rejected  in  toto   merely because the prosecution chose to treat him  as hostile and cross-examined him.  The evidence  of  such witness  cannot  be  treated  as  effaced  or   washed off the record altogether but the same can   be accepted to the extent his version is found to be   dependable on a careful scrutiny thereof…”  

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19. In Mahesh v. State of Maharashtra, (2008) 13 SCC 271, this  

Court considered the value of the deposition of a hostile witness and  

held as under:

“…..If  PW  1, the  maker  of  the  complaint  has   chosen  not  to  corroborate  his  earlier  statement   made  in  the  complaint  and  recorded  during  investigation, the conduct of such a witness for no   plausible  and  tenable  reasons  pointed  out  on   record, will give rise to doubt the testimony of the   investigating  officer  who  had  sincerely  and  honestly conducted the entire investigation of the   case.  In these circumstances,  we are of the view  that PW.1 has tried to conceal the material truth  from the Court with the sole purpose of shielding  and  protecting  the  appellant  for  reasons  best   known  to  the  witness  and  therefore,  no  benefit   could be given to the appellant for unfavourable   conduct of this witness to the prosecution”.

20. In  Rajendra & Anr.  v.  State  of  Uttar Pradesh, (2009)  13  

SCC 480, this Court observed that merely because a witness deviates  

from his statement made in the FIR, his evidence cannot be held to be  

totally unreliable.

21. This Court reiterated a similar view in  Govindappa & Ors. v.  

State of Karnataka, (2010) 6 SCC 533, observing that the deposition  

of  a  hostile  witness  can be relied upon at  least  upto the  extent  he  

supported the case of the prosecution.

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22. In view of the above, it is evident that the evidence of a person  

does  not  become  effaced  from the  record   merely  because  he  has  

turned hostile and his deposition must be examined more cautiously to  

find out as to what extent he has supported the case of the prosecution.  

Section 313 Cr.P.C.:

23. An accused can be questioned under Section 313 Cr.P.C. only  

for  the  purpose  of  enabling  him  personally  to  explain  any  

circumstance appearing in the evidence against him. No matter how  

weak  or  scanty  the  prosecution  evidence  is  in  regard  to  certain  

incriminating  material,  it  is  the  duty  of  the  Court  to  examine  the  

accused and seek his explanation on incriminating material which has  

surfaced against him. Section 313 Cr.P.C. is based on the fundamental  

principle of fairness.  The attention of the accused must specifically be  

brought to inculpatory pieces of evidence to give him an opportunity  

to offer an explanation if he chooses to do so.  Therefore, the court is  

under a legal obligation to put the incriminating circumstances before  

the accused and solicit his response.  This provision is mandatory in  

nature  and  casts  an  imperative  duty  on  the  court  and  confers  a  

corresponding right on the accused to have an opportunity to offer an  

explanation  for  such  incriminatory  material  appearing  against  him.  

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Circumstances which were not put to the accused in his examination  

under Section 313 Cr.P.C. cannot be used against him and have to be  

excluded from consideration.  (Vide  Sharad Birdhichand (Supra);  

and State of Maharashtra v. Sukhdev Singh & Anr., AIR 1992 SC  

2100).   

24. In  S. Harnam Singh v.  State (Delhi Admn.), AIR 1976 SC  

2140, this Court held that non-indication of inculpatory material and  

its  relevant  facts  by  the  trial  court  to  the  accused  adds  to  the  

vulnerability  of  the  prosecution  case.   The  recording  of  the  

statement  of  the  accused  under  Section  313  Cr.P.C.  is  not  a  

purposeless exercise.

25. If any appellate Court or revisional court comes across the fact  

that the trial Court had not put any question to an accused, even if it is  

of  a  vital  nature,  such  an  omission  alone  should  not  result  in  the  

setting  aside  of  the  conviction  and  sentence  as  an  inevitable  

consequence. An inadequate examination cannot be presumed to have  

caused  prejudice.  Every  error  or  omission  in  compliance  of  the  

provisions of Section 313 Cr.P.C., does not necessarily vitiate trial.  

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Such  errors  fall  within  category  of  curable  irregularities  and  the  

question as to whether the trial is vitiated, in each case depends upon  

the degree of error and upon whether prejudice has been or is likely to  

have  been caused to  accused.   Efforts  should be made  to  undo or  

correct the lapse. (Vide:  Wasim Khan v.  State of  Uttar Pradesh,  

AIR 1956 SC 400;  Bhoor Singh & Anr. v. State of Punjab,  AIR  

1974  SC  1256;  Labhchand  Dhanpat  Singh  Jain v.  State  of  

Maharashtra,  AIR 1975 SC 182;   State of Punjab  v. Naib Din,  

AIR 2001 SC 3955;  and  Parsuram Pandey  & Ors. v.  State  of  

Bihar, (2004) 13 SCC 189).  

26. In Asraf Ali v. State of Assam, (2008) 16 SCC 328, this Court  

observed:  

“Section 313 of the Code casts a duty on the court   to  put  in  an  enquiry  or  trial  questions  to  the   accused for the purpose of enabling him to explain   any  of  the  circumstances  appearing  in  the   evidence  against  him.  It  follows  as  a  necessary  corollary  therefrom  that  each  material   circumstance  appearing  in  the  evidence  against   the  accused  is  required  to  be  put  to  him  specifically,  distinctly  and separately and failure   to  do  so  amounts  to  a  serious  irregularity   vitiating trial, if it is shown that the accused was  prejudiced.”

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27. In  Shivaji  Sahebrao  Bobade &  Anr.  v.  State  of  

Maharashtra,  AIR 1973 SC 2622, this Court observed as under :

“It is trite law, nevertheless fundamental, that the   prisoner’s  attention  should  be  drawn  to  every   inculpatory material so as to enable him to explain   it. This is the basic fairness of a criminal trial and  failures  in  this  area  may  gravely  imperil  the  validity  of  the  trial  itself,  if  consequential   miscarriage  of  justice  has  flowed.  However,   where such an omission has occurred it does not   ipso  facto  vitiate  the  proceedings  and  prejudice  occasioned by such defect must be established by  the accused. In the event of evidentiary material   not  being  put  to  the  accused,  the  court  must   ordinarily  eschew  such  material  from  consideration. It  is  also  open  to  the  appellate   court to call upon the counsel for the accused to   show what explanation the accused has as regards  the circumstances established against him but not   put to him and if the accused is unable to offer the  appellate  court  any  plausible  or  reasonable   explanation of such circumstances, the court may  assume that no acceptable answer exists and that   even  if  the  accused  had  been  questioned  at  the   proper time in the trial court he would not have   been able to furnish any good ground to get out of   the  circumstances  on  which  the  trial  court  had  relied for its conviction.” (Emphasis added).

28. In Ganesh Gogoi v. State of Assam,  (2009) 7 SCC 404, this  

Court relying upon its earlier decision in Basavaraj R. Patil & Ors.v.  

State of Karnataka, (2000) 8 SCC 740,  held that the provisions of  

Section  313  Cr.P.C.  are  not  meant  to  nail  the  accused  to  his  

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disadvantage but are meant for his benefit. The provisions are based  

on  the  salutary  principles  of  natural  justice  and  the  maxim “audi  

alteram  partem”  has  been  enshrined  in  them.  Therefore,  an  

examination under Section 313 Cr.P.C. has to be of utmost fairness.  

29. In  Shaikh Maqsood v.  State of Maharashtra, (2009) 6 SCC  

583;  and  Ranvir Yadav v.  State of Bihar (2009) 6 SCC 595, this  

Court held that it is the duty of the trial court to indicate incriminating  

material  to  the  accused.   Section  313  Cr.P.C.  is  not  an  empty  

formality.   An  improper  examination/inadequate  questioning  under  

Section 313 Cr.P.C. amounts to a serious lapse on the part of the trial  

Court and is a ground for interference with the conviction.

30. In  Suresh Chandra Bahri v.  State of Bihar,  AIR 1994 SC  

2420, this Court rejected the submission that as no question had been  

put to the accused  on motive,  no motive for the commission of the  

crime  could  be  attributed  to  the  accused,  nor  the  same  could  be  

reckoned as circumstance against him observing that it could not be  

pointed out as to what in fact was the real prejudice caused to the  

accused by omission to question the accused  on the motive for the  

19

crime.  No material was placed before the court  to show as to what  

and in what manner the prejudice, if any, was caused to the accused.  

More so, the accused/appellant was aware of accusation and charge  

against him.   

31. Thus, it is evident from the above that the provisions of Section  

313 Cr.P.C make it obligatory for the court to question the accused on  

the evidence and circumstances against him so as to offer the accused  

an opportunity to explain the same.  But, it would not be enough for  

the accused to show that he has not been questioned or examined on a  

particular  circumstance,  instead  he  must  show  that  such  non-

examination  has  actually  and  materially  prejudiced  him  and  has  

resulted in the failure of justice.  In other words, in the event of an  

inadvertent omission on the part of the court to question the accused  

on any incriminating circumstance cannot ipso facto vitiate the trial  

unless it  is  shown that some material  prejudice was  caused to the  

accused by the omission of the court.  

Abscondance of Accused :

32. In Matru @ Girish Chandra v.  The State of U.P., AIR 1971  

SC 1050, this Court repelled the submissions made by the State that as  

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after  commission  of  the offence the  accused had been absconding,  

therefore,  the  inference  can  be drawn that  he was  a  guilty  person,  

observing as under:  

“The appellant’s conduct in absconding was also   relied upon. Now, mere absconding by itself does  not necessarily lead to a firm conclusion of guilty   mind. Even an innocent man may feel panicky and  try to evade arrest when wrongly suspected of a  grave  crime  such  is  the  instinct  of  self- preservation.  The act  of  absconding is  no doubt   relevant piece of evidence to be considered along  with  other  evidence  but  its  value  would  always   depend  on  the  circumstances  of  each  case.   Normally the courts are disinclined to attach much  importance to the act of absconding, treating it as   a  very small  item in the  evidence for  sustaining   conviction.  It  can  scarcely  be  held  as  a   determining  link  in  completing  the  chain  of   circumstantial  evidence  which  must  admit  of  no  other reasonable hypothesis than that of the guilt   of the accused. In the present case the appellant   was with Ram Chandra till the FIR was lodged. If   thereafter  he  felt  that  he  was  being  wrongly  suspected and he tried to keep out of the way we  do not think this circumstance can be considered  to  be  necessarily  evidence  of  a  guilty  mind  attempting to evade justice. It  is not inconsistent   with his innocence.”

33. A similar view has been reiterated by this Court in Rahman v.  

State of U.P.,  AIR 1972 SC 110; State of M.P. v.  Paltan Mallah &  

21

Ors.,  AIR 2005 SC 733; and Bipin Kumar Mondal v. State of West  

Bengal,  JT 2010 (7) SC 379.

34. Abscondance by a person against whom FIR has been lodged,  

having an apprehension of being apprehended by the police, cannot be  

said to be unnatural.  Thus, mere abscondance by the appellant after  

commission of the crime and remaining untraceable for a period of six  

days  itself  cannot  establish  his  guilt.   Absconding  by  itself  is  not  

conclusive proof of either of guilt or of a guilty conscience.   

Present case:  

35. The  present  case  requires  to  be  examined  in  light  of  the  

aforesaid certain legal propositions.   

The offence as alleged, has been committed by the appellant,  

killing  three  persons  and  injuring  three  other  persons  who  were  

members of his own family. The alleged motive had been annoyance  

because of the denial of his share in the immovable property by his  

father,  Hardayal  Singh.   An  earlier  incident  had  occurred  in  the  

morning in the office of the Sub-Registrar at Kichcha and the offence  

was  allegedly  committed  by  the  appellant  on  the  same day  in  the  

evening at about 5.45 P.M. An FIR had been lodged promptly at 6.40  

22

P.M. at Police Station: Rudrapur, which is located at 14 kms. away  

from the place of occurrence.  Complainant Ajit Singh (PW.1) in his  

deposition, admitted his presence at the place of occurrence and also  

that he had suffered injuries in the same incident, however, he had  

denied the participation of the appellant in the crime.  He had also  

admitted that FIR (Ex. K-1) was lodged by him and the same had been  

in his handwriting.  He also admitted that in the document Ex. K-1,  

he had stated that the appellant had committed the offence.  On being  

cross-examined by the public prosecutor, he furnished the explanation  

for changing his stand, stating that he had named the appellant for the  

killing  of  Inderjit  Singh,  Surender  Singh  and  Saranjit  Singh  and  

causing injuries to three others including the complainant at the behest  

of the members of the crowd present there, whereas he had not seen  

the appellant firing at the spot.  He denied the suggestion that there  

was  a  compromise  in  the  family  and because  of  that  he had been  

falsely deposing to save the appellant.   However, he had admitted that  

he  was  medically  examined.   His  version  in  the  FIR  stands  

corroborated by the medical evidence.  The statement recorded by the  

Investigating  Officer  under  Section  161  Cr.P.C.  has  been  in  

consonance with his version made in the FIR.   

23

36.  Baljit Singh (PW.2) was also an injured witness, and was also  

medically examined.  The medical report corroborated the case of the  

prosecution.  He named the appellant responsible for the crime while  

making a statement under Section 161 Cr.P.C., which was recorded by  

the Investigating Officer, Rajan Tyagi(PW.8).  However, he did not  

support  the  case  of  the  prosecution  when he  was examined  in  the  

court.   He admitted his presence on the spot and admitted that he had  

suffered injuries.  He also admitted that he was medically examined.  

He admitted that  there was a dispute in the family on the issue of  

sharing the immovable property, but he deposed that the appellant did  

not  cause  three  deaths  or  injuries  to  three  others.   In  his  cross-

examination,  he  was  confronted  with  his  statement  recorded under  

Section  161  Cr.P.C.,  wherein  he  had  named  the  appellant  as  the  

person  who  had  committed  the  crime.   He  had  also  denied  the  

suggestion that he was deposing falsely because of the compromise in  

the family.   

37.       The other  witnesses Gurmit  Singh (PW.3),  Satwant Singh  

(PW.4), Rajinder Kumar (PW.5), Harpal Singh (PW.6) and Hira Lal  

(PW.7) had even denied their  presence on the spot.   Harpal  Singh  

24

(PW.6) deposed that he had reached the place of occurrence after the  

commission of the offence. None of the said eye-witnesses  supported  

the case of the prosecution in spite of the fact that all of them had  

named  the  appellant  as  an  assailant  in  their  respective  statements  

made under Section 161 Cr.P.C.   

38.        Shri Rajan Tyagi, Investigating Officer (PW.8), had proved  

the statements of all the witnesses recorded by him under Section 161  

Cr.P.C. and deposed that it was the complainant, Ajit Singh (PW.1),  

who had stated that the appellant had caused three deaths and injuries  

to 3 other family members.  He had admitted his signatures on the said  

statements.   He had further stated that Ajit Singh (PW.1) had pointed  

towards  the  place  of  occurrence  and  on  the  basis  of  the  same  he  

prepared the site plan, Ex. K-36.  The said witness admitted that he  

had recovered empty cartridges and other materials from the place of  

occurrence  including  the  piece  of  cloth,  blood  soiled  earth  and  

ordinary  soil.   He  had  supported  the  postmortem  report,  that  

postmortems of the dead bodies were conducted on 27th April, 2000,  

which was recorded in the case diary.  He has further deposed that at  

1.30 P.M. on 4th May, 2000 at the instance of a secret informer, the  

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appellant,  Paramjeet  Singh,  was  arrested  and  the  appellant  had  

confessed his crime and had told him that the appellant had deposited  

his licensed gun with M/s J.B.  Sales Arms & Ammunition Dealer,  

Railway  Station,  Rampur.   The  Investigating  Officer  (PW.8)  went  

alongwith the appellant and other police personnel to Rampur railway  

station for the recovery of the gun used in the offence.  The appellant,  

Paramjeet Singh, had pointed out, from the distance of about 90 paces,  

the agency of the arms dealer.  They alighted from the jeep and the  

appellant  walked towards  it  and got  recovered the  gun which  was  

lying in an almirah of the said shop and identified the same.  So, it  

was the appellant at whose behest the gun was recovered.  In spite of  

the extensive cross examination of Shri Rajan Tyagi,  Investigating  

Officer (PW.8), the defence could not make out anything which may  

discredit his deposition.   

39. The case should be examined from another  angle  also.   The  

postmortem reports of 3 persons, who died in the incident, are  part of  

the record and speak for themselves.   

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Postmortem Reports :

I.        The postmortem report of Sharanjeet Singh (Ex.Ka.27) reads  

as under:

1) Lacerated wound 1 cm x 1 cm circular, Margins inverted  

over forehead in between eyebrows.

2) Lacerated  wound 1 cm x 1 cm right  side chest,  6  cm  

above right nipple.

3) Lacerated  wound  1  cm  x  1  cm  right  side  of  lower  

abdomen  6  cm  lateral  to  umbilicus,  circular,  margins  

inverted.  

4) Lacerated  wound  1  cm  x  1  cm  over  right  shoulder,  

margins inverted, circular.  

5) Multiple firearm injuries measuring 1 cm x 1 cm in an  

area  of  12 cm x 16 cm over  middle  of  back,  margins  

inverted, cavity deep, pellets and plastic cork recovered  

(wound of entering).  

II.     The postmortem report of Surender Singh (Ex. Ka. 28) reads as  

under:

1) Lacerated would 12 cm x 14 cm right side abdomen 6 cm  

above and lateral  to  umbilicus  and 10 cm below right  

nipple,  margins  crushed  and  multiple  firearm  injuries  

measuring  1  cm x  1  cm around  the  lacerated  wound,  

margins inverted, muscle deep.   

27

2) Multiple lacerated wounds measuring 1 cm x 1 cm over  

left chest around nipple some are cavity deep and some  

skin deep.

3) Lacerated wound 10 cm x 6 cm left abdomen lateral side.  

III.    The postmortem report of Inderjeet Singh (Ex.Ka. 29) reads as  

under:

1) Lacerated wound 1 cm x 1.5 cm left side chest oval in  

shape,  margins inverted 6 cm above left  nipple,  cavity  

deep.

2) Two  circular  lacerated  wound  right  side  chest  6  cm  

below right nipple, skin deep, margins inverted.  

3) Three lacerated wound in an area of 8 cm x 6 cm over  

right shoulder joint, skin deep, margins inverted.

4) Three lacerated wound 1 cm x 1 cm circular  in shape  

over right lower abdomen 6 cm lateral to umbilicus.   

5) Lacerated wound 3 cm x 3.5 cm oval in shape margins  

averted and irregular over back of chest, left side, track  

corresponding to injury No. 1, injury No. 5 is wound of  

exit.  R.M. present both upper and lower limbs.   

40. Injury Reports :

I.     Ajit  Singh (PW.1)  was  medically  examined and his  injuries’  

report (Ex.Ka.37) reads as under:

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i) Lacerated wound of .3cm x .3cm on the back side of right  

hand, skin deep.  Oozing of blood present.

ii) Multiple  firearm wound of entry size .3 x .3cm in the  

area of 18cm x 9 cm on middle part of the left thigh on the  

outer side. Black coloured. Jean pant is also torn on the same  

places.  Margins are charred and indication is present around  

them. Advised X-ray of left thigh.

iii) Multiple  firearm  wound  of  entry  on  the  medial  and  

anterior aspect of right thigh, some part of the Jeans is also torn  

on the same places over the injuries.  Margins are charred and  

indication is present around them.  Oozing of blood also present  

size 13cm x .3cm.  Advised X-ray of the right thigh.

II.    The injuries’ report of Baljit Singh, (PW.2) (Ex.Ka.38) reads as  

under:

i) Lacerated  wound over  the  right  side  of  face  and neck  

involving the lower jaw and right angle of lip and tongue.

ii) Excessive bleeding through the wound.

iii) Irregular margin defect in the chin cut being received on  

mandible.

iv) Right lower palpable throughout the wound.

                    Opinion : The above injuries were caused by fire arm. Fresh.

29

III.   The  medical  examination  report  of  Shri  Hardayal  Singh  

(Ex.Ka.36) is as under:

i)     Punctured  wound  4  mn x  4  round  in  the  left  side  of  

temporal area 3 cm above the left extended ear.  Bleeding.  X-

ray advised.

ii) Punctured wound ½ cm x ½ cm round with level of 1st  

thoracic vertebra.  Bleeding.  X-ray advised.

iii) Punctured  wound  ½  cm  x  ½  cm  on  left  scapula.  

Bleeding.  X-ray advised.  

      It is evident from the above that the appellant had caused a very  

large number of injuries.  

41.     The witnesses i.e. Ajit Singh (PW.1) and Baljit Singh (PW.2)  

in  their  respective  depositions  have  admitted  their  presence  at  the  

place of incident  and admitted to suffering those injuries.   In their  

statements  under  Section 161 Cr.P.C.  they  have also  admitted that  

they suffered the aforesaid injuries at the hands of the appellant. It  

was at a later stage that they have denied any role of the appellant.  

Their  statements  to  that  effect  are  not  trustworthy  for  the  simple  

reason that they failed to offer any explanation for why they assigned  

the said role to the appellant in their statements under Section 161  

Cr.P.C. and why the appellant had been named by Ajit Singh (PW.1)  

30

while  lodging  the  FIR.   It  is  relevant  to  note  that  the  witnesses,  

namely, Ajit Singh (PW.1) and Baljit Singh (PW.2) have also deposed  

that after the incident, a Panchayat was convened and it pardoned the  

appellant.   The  version  of  convening  the  Panchayat  and  grant  of  

pardon to  the  appellant  has  duly  been supported  by  Gurmit  Singh  

(PW.3) and Satwant Singh (PW.4).   

     Gurmit Singh (PW.3) deposed:  “…..it is correct that accused is my cousin.  The   matter had been compromised in the Panchayat”.

     Satwant Singh (PW.4) deposed:  “….matter  had  been  compromised  in  the   Panchayat.   Panchayat  had  pardoned  Pamma  accused”.

It is pertinent to mention here that injured Hardayal Singh could  

not be examined as he died of cancer during the trial.   

42. It is evident from the above that the view taken by the courts  

below, that the eye-witnesses turned hostile because of the decision  

taken in the Panchayat, pardoning the appellant, does not require any  

interference.

31

It  is  also evident  from the above that  the  said eye-witnesses  

have no regard for the truth and concealed the material facts from the  

court only in order to protect the appellant, for the reasons best known  

to them.   Such an unwarranted attitude on the part of the witnesses  

disentitles any benefit to the appellant, who has committed a heinous  

crime.  The crime had been committed against the society/State and  

not only against the family and therefore, the pardon accorded by the  

family and Panchayat has no significance in such a heinous crime.

43.  It has been canvassed on behalf of the appellant that the trial  

Court committed an error relying upon various factors/incriminating  

materials which were not pointed out to the appellant while recording  

his statement under Section 313 Cr.P.C. Such material  had been in  

respect of (i) recovery of gun from arms dealer at Rampur; (ii) motive;  

(iii) abscondance of the appellant; and (iv) compromise in Panchayat  

which pardoned the appellant.  

44. So far as the circumstance of recovery of gun from the arms  

dealer at Rampur is concerned, the trial court had put a question to the  

32

appellant  and he has answered the same.  The question and answer  

read as under:  

“Q. It has come in evidence that the Investigating Officer  prepared a site plan of the place of occurrence which is  Exh.K-26. Your licenced gun 17466/96 was recovered at  your  instance  from Rampur  and the  Recovery   Memo  was prepared which is K-39, the site plan of the place of  recovery  is  Exh.K-45.  The  forensic  science  laboratory  report in respect of the case property is Exh. K-44, what  have you to say?

Ans.  The gun was not recovered at my instance. This  number 17466/96 is the number of my licenced gun. I  had  deposited  this  gun  with  a  dealer  at  Rampur.  The  police has concocted the story of recovery.”

It appears that the number of one of the exhibits had wrongly been  

pointed out as K-44, though it was Exh. K-46. But it is  not a case  

where no question was put to the accused on the said circumstance.   

45. So far as the issue of motive is concerned, the case is squarely  

covered  by  the  judgment  of  this  court  in  Suresh  Chandra  Bahri  

(supra). Therefore, it does not require any further elaborate discussion.  

More so, if motive is proved that would supply a link in the chain of  

circumstantial evidence but the absence thereof cannot be a ground to  

reject the prosecution case. (Vide:  State of Gujarat v. Anirudhsing  

[supra])   

33

46. The third circumstance i.e. the abscondance of the appellant has  

also  been  taken  into  consideration  by  the  courts  below.  We  have  

clarified that it cannot be a circumstance against the appellant. Thus,  

not putting a question on this particular circumstance to the appellant  

remained inconsequential. The courts below had considered that the  

appellant could not furnish any explanation for his absence for about  

six days.  Appellant failed to raise any positive defence and answered  

all the questions put to him in an evasive manner.  Such a view is  

permissible being in consonance with the law laid down by this Court  

in Raj Kumar Prasad Tamarkar v. State of Bihar, (2007) 10 SCC  

433;  and  Amarsingh  Munnasingh  Suryawanshi  v.  State  of  

Maharashtra, (2007) 15 SCC 455.  

47. So  far  as  the  fourth  circumstance  i.e.  the  compromise  in  

Panchayat and the pardoning of the appellant is concerned, it cannot  

be labelled as a circumstance charging the appellant with a crime. By  

no stretch of the imagination can it be held that the said circumstance  

involved any accusation towards the appellant. In fact, in cannot be  

termed  as  incriminating  material,  proving  the  offence  against  the  

34

appellant,  rather it had been a circumstance due to which all the seven  

eye-witnesses turned hostile.  

Be that as it  may, we are of the considered opinion that not  

putting questions regarding anyone of the aforesaid circumstances can  

not  be held to be a serious irregularity  inasmuch as the same may  

vitiate  the  conviction.  More  so,  in  the  present  case,  it  has  not  

materially prejudiced the appellant nor has it resulted in a miscarriage  

of justice.  

48. If  the case is considered in the totality  of the circumstances,  

also taking into consideration the gravity of the charges, the appellant  

had killed his real brother, Inderjit Singh and his nephews, Surender  

Singh and Saranjit Singh and injured his father Hardayal Singh and  

nephews Ajit  Singh (PW.1)  and Baljit  Singh (PW.2)  in  broad day  

light.  The FIR had been lodged promptly, naming the appellant as  

the  person  who  committed  the  offence.    All  the  eye-witnesses,  

including  the  injured  witnesses,  attributed  the  commission  of  the  

offence only to the appellant in their  statements  under Section 161  

Cr.P.C.  It is difficult to imagine that the complainant and the eye-

witnesses  had  all  falsely  named  the  appellant  as  being  the  person  

responsible for the offence at the initial stage itself.    

35

Thus, we do not see any cogent reasons to interfere with the  

concurrent  findings of fact  by the courts  below.   The appeal  lacks  

merit and is hereby dismissed.  

…………………………….J. (P. SATHASIVAM)

                  …… …………………..…….J.

New Delhi, (Dr. B.S. CHAUHAN) September  27, 2010   

36