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PETITIONER: HARBANS LAL

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       23/01/1996

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) MAJMUDAR S.B. (J)

CITATION:  1996 AIR 1186            1996 SCC  (2) 350  JT 1996 (6)     5        1996 SCALE  (1)629

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The appellant  along with  his two sons Pawan Kumar and Dial Ram  were sent  up for  trial in  connection  with  the murder of  Punni Devi  - wife of the appellant and mother of Pawan Kumar  and Dial  Ram on  the night  intervening  16/17 October, 1981.  The trial  court  convicted  all  the  three accused for  offences under  Section  302/34  IPC  vide  its judgment dated  15.6.1982 and sentenced them to undergo life imprisonment. On  appeal, the  High Court  gave  benefit  of doubt to  Pawan Kumar  and Dial  Ram and acquitted them. The conviction and  sentence  of  the  appellant  was,  however, maintained.      By special  leave, the appellant has called in question his conviction and sentence.      We have  heard learned  counsel  for  the  parties  and examined the record.      That Punni  Devi died  as a  result of burn injuries on the night  intervening October  16/17, 1981, in the house of her husband  Harbans Lal  appellant, is  not in dispute. The question, however,  is whether the prosecution has been able to establish that the appellant committed the crime.      The prosecution  examined PW-11  Kartar Singh and PW-12 Karnail Singh  - grandson  of PW-11, as the two witnesses of the  occurrence.   The  High  Court  while  considering  the submissions relating to the evidence "was not without force" but went on to say that even if the evidence of that witness was ’ignored’,  the fact remains that the deceased was found dead in  her own  house where  she  was  residing  with  the appellant and  that  it  was  not  a  case  of  suicide  and therefore the  appellant must have burnt her to death. Thus, the  High   Court  appears   to  have   relied   upon   that circumstances to  uphold the  conviction and sentence of the appellant.      With a  view to satisfy our judicial conscious, we have perused the evidence of PW-11 Kartar Singh and PW-12 Karnail

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Singh but  their evidence does not inspire confidence. PW-11 Kartar Singh  deposed that  on the  night in question, while passing through the house of Harbans Lal he peeped through a window of  the house and saw that the appellant had kept his foot on  the neck  of Punni  Devi deceased while Pawan Kumar had caught  hold of  her arms  and Dial Ram of her legs. Why PW11 had to peep through the window is not explained by him, particularly when  it is  not his case that the deceased was shouting or  raising an  alarm? Karnail  Singh PW-12 deposed that after  PW11 had  peeped  through  the  window,  he  did likewise  and   noticed  that  Pawan  Kumar  was  sprinkling kerosene oil on the body of Punni Devi while Harbans Lal had put his  foot on  her abdomen, and he (i.e. Harbans Lal) set her on  fire with  a match  stick. Thus, these two witnesses deposed about  two stages  of the  occurrence they  had seen through the  window. Their  evidence appears  to  be  rather artificial. These  two witnessed  appear to  us to be got up witnesses. They  saw a  gruesome murder being committed with their own  eyes and yet for reasons best known to them, they did not  raise any  alarm but  went their  way and  did  not disclose about  the occurrence  to  anyone,  not  only  that evening but  even till  the third  day after the occurrence. Their conduct  was thus,  most  unnatural.  This  creates  a serious  doubt  about  their  credit  worthiness.  From  the evidence of  DW-4 and  DW-5 it  transpires that PW11 did not even have  a ration  card in that ward and even his name was not entered on the voters list of that area. His presence in the area  is therefore, doubtful. The evidence of both these witnesses, PW-11  and PW-12,  has not impressed us. The High Court also  does not  appear to  have  found  them  reliable witnesses. Their  conduct belies  the possibility  of  their presence and  various infirmities in their evidence, renders it unsafe to rely upon their testimony. The only other piece of evidence  relied upon  by the prosecution is the recovery of the  deed body with extensive burns from the house of the appellant. That  circumstance, however, is not sufficient to hold the  appellant guilty.  It is  not conclusive in nature and is  not compatible  only with the guilt of the appellant and   wholly   incompatible   with   his   innocence.   This circumstances can only create suspicion about the complicity of the appellant but suspicion cannot be allowed to take the place of  proof. The  High Court,  after having dis-believed PW-11 and given benefit of doubt to Pawan Kumar and Dial Ram by  accepting   their  statements   that  they  were  living separately fell in error in convicting the appellant only on the supposition  that the  appellant  was  living  with  the deceased, ignoring  the statement  of the appellant recorded under Section  313 Cr. P.C. to the effect that on account of his strained  relations with  his wife,  he used to sleep at the shop and not in the house and that after he learnt about the death  of his  wife at about 10/11 A.M. on 17th October, 1981, he  sent information to the relations of his wife. The prosecution did  not lead  any evidence  to  show  that  the appellant was  living in  the house  and not  in  the  shop. Since, the High Court accepted the statements of Pawan Kumar and Dial  Ram recorded  under Section 313 Cr. P.C. that they were living  separately and  gave them the benefit of doubt, we are  at loss  to understand  as to why the same yardstick was not applied while appreciating the evidence in so far as the appellant is concerned.      There is  yet another serious lacuna in the prosecution case. The  failure of  the High  Court to  notice, let alone consider and discuss, the evidence of ten defence witnesses, besides the  court witness  Shri G.S.  Bhullar, S.S.P.,  was highly  improper   and  in   our  opinion,  the  failure  to

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appreciate the defence evidence has resulted in mis-carriage of justice and the appellant has been seriously prejudiced.      The evidence  on the  record in  our opinion  fails  to connect the appellant with the crime and the prosecution has not  proved   the  case   against  the  appellant  beyond  a reasonable doubt.  The appellant  is entitled to the benefit of the  doubt. The  conviction of  the appellant  under  the circumstnaces cannot  be sustained.  We, accordingly, accept this appeal and set aside the conviction and sentence of the appellant. The  appellant is  on bail.  His bail bonds shall stand discharged.