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CASE NO.: Appeal (crl.)  62 of 2003

PETITIONER: Pawan Kumar                                                      

RESPONDENT: Vs. State of Haryana                                                 

DATE OF JUDGMENT: 23/07/2003

BENCH:

JUDGMENT:

ORDER

       After hearing learned counsel for the parties, we have allowed the appeal,  set aside conviction and sentence of the appellant and accused Balwinder @  Binder and acquitted them of all the charges by order dictated today in Court.  As  the signature on the order may take some time and since it is a question of liberty  of citizens, the Registry is directed to issue the release order to the effect that the  aforesaid two accused persons who are in custody be released forthwith, if not  required in connection with any other case.  

                                                                                                                                â\200¦â\200¦â\200¦â\200¦â \200¦â\200¦â\200¦â\200¦â\200¦â\200¦..J. [B.N. AGRAWAL]

â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦â\200¦.J. [B.N. SRIKRISHNA] NEW DELHI, JULY 23, 2003.

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 62 OF 2003  

Pawan Kumar                                                     â\200¦â\200¦â\200¦..Appellan t

Versus  

State of Haryana                                                        â\200¦â\200¦â\200¦Re spondent  

O R D E R  

               Heard learned counsel for the parties.

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               The sole appellant along with accused Balwinder Singh @ Binder   was convicted by the trial court under Section 302 read with Section 34 of the  Indian Penal Code and sentenced to undergo imprisonment for life.  On appeal  being preferred by the convicted persons, the High Court of Punjab and Haryana  has confirmed their conviction and sentence.                    The prosecution case, in short, is that on 9th July, 1994, the  accused persons approached one Satish Kumar (PW 10), incharge of the Golden  Taxi Stand, Amritsar for hiring a taxi from that place for going to Bhatinda and  they boarded the taxi which was driven by one Shamsher Singh alias Shera and  they were having with them an unknown girl.  On the next day, i.e., on 10th July,  1994, around 8.00/8.30 a.m., when Mahavir Singh (PW 6), owner of Saharan  Hotel situated at Dabwali, came to his hotel, the waiter-Vijay Kumar is said to  have told him  that on that day at about 1.15 a.m., three customers came to the  hotel in a Maruti car and they were allotted room no. 5 and at about 4.30 a.m.,  two of them went away saying to Vijay that their uncle, i.e., the driver was  sleeping inside the room and in case he required anything, the hotel staff should  supply him the same and they will be returning after some time but never  returned.   At about 11.00 or 11.30 a.m., due to failure of power supply, Mahavir  Singh (PW 6) asked Vijay Kumar to get the door of room No. 5 opened as it was  hot.  Vijay Kumar knocked at the door of room No. 5 but nobody responded from  inside.  Then he again knocked but still there was no answer whereafter Vijay  Kumar saw through a hole of the cooler that one person was lying on the double  bed.  He brought a duplicate key, original of which was taken away by  two of the  occupants referred to above, opened the door and found the person, lying on the  bed in injured condition, dead.  On the same day, i.e., on 10th July, 1994 at about  2.55 p.m., Mahavir Singh (PW 6) lodged the first information report against  unknown persons.  

                Police after registering the case took up investigation  during the  course of which certain incriminating materials were recovered from the place of  occurrence on the basis of which two accused persons including the appellant  were made accused in the case.  Upon completion of investigation, the police  submitted charge sheet against both the accused persons on receipt whereof the  learned magistrate took cognizance and committed the accused persons to the  court of Sessions to face trial.  During trial, the prosecution examined several  witnesses and got exhibited various documents to prove the circumstances  against the accused persons as it was not a case of direct evidence and upon  conclusion of trial, both the accused persons were convicted by the trial court  and their appeal having been dismissed by the High Court as stated above, the  present appeal by special leave by one of them.  

               The first circumstance alleged against the accused persons is that  they hired a taxi, driven by Shamsher Singh,  at the Taxi Stand and boarded the  same.  The evidence of PW.10, whose testimony has been found to be credible  by the courts below, has proved this circumstance and no infirmity could be  pointed out therein.  But the same alone does not take us anywhere to show  complicity of the accused persons with the crime.  

               The other circumstance is that after boarding the taxi, the accused  persons had gone to the hotel in question, stayed there during night in a room  along with driver of the vehicle, in the early morning both the accused left the  hotel asking the waiter Vijay Kumar to take care of their uncle, i.e., the driver who  was in the room and they would be returning soon, but never returned and  thereafter on opening of the room, the driver was found dead.   According to the  statement of Mahavir Singh (PW 6), owner of the hotel, the waiter-Vijay Kumar  told him that "the three persons, namely, two accused persons and the deceased  went to the hotel, stayed there during night and the accused persons left the  hotel leaving the driver in the room."   Vijay Kumar, who was the solitary witness  to prove this circumstance, has not been examined for  reasons best known to  the prosecution as even according to the prosecution case and evidence there  was no other witness on this point.    Owner of the hotel has simply stated that he  learnt all these facts from  Vijay Kumar.  The presence of  accused persons in  the hotel on the fateful night could have been established by examination of    Vijay Kumar, who could have been the only competent witness to prove the

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same, but he has been withheld for which no explanation is forthcoming.  So far  as evidence of the owner of the hotel, Mahavir Singh (PW 6), is concerned, that  is a hearsay evidence as he learnt everything  from the waiter and had otherwise  no personal knowledge of the same.  Evidence of this witness could have been  used to corroborate substantive evidence. In the absence of examination of   Vijay Kumar in court, to prove this circumstance, there is no substantive   evidence which could have been corroborated by the evidence of PW 6.   Thus  evidence of PW 6 cannot be of any avail to the prosecution to prove this  circumstance.

               Now, the question is as to whether there is any documentary  evidence  to prove this circumstance.  The accused persons are said to have  made an entry in the register, duly maintained by the hotel, in their own pen and  signed the same showing their stay on the fateful night in the hotel in question.   So far as this entry  is concerned, the same has been exhibited on the basis of  statement of PW6, though, he has nowhere stated that he knew either the  writings or signatures of any of the accused persons.  Indisputably, the accused  never made the entry in presence of PW 6, but the same is claimed to have been  made in presence of Vijay Kumar alone.  Thus entry in the register having not  been legally proved is not admissible in evidence.   There is no other evidence in  relation to stay of the accused  persons in the hotel on the  night of occurrence  and there being no substantive evidence in relation to this very circumstance,  we  are of the view that the same cannot be proved by the statement of PW6, owner  of the hotel, which could have been used only by way of corroborative evidence  and thus the prosecution has failed to prove this circumstance which was the  most important one to hold the accused persons guilty.   

               The next circumstance which has been alleged against the accused  is  letter written by the appellant to his mother, reliance whereupon has been  placed in the impugned judgments.  So far as this letter is concerned, it has been  admitted into evidence to show that the appellant had confessed his guilt.  We  have been taken through the letter said to have been written by the appellant, but  we do not find any admission whatsoever, much less confession, in relation to  the complicity of the appellant with the crime.  That apart, PW 10, who has  proved this letter, was suggested that the same was forged and fabricated in  which eventuality it was incumbent upon the prosecution to prove the handwriting  and signature of the appellant thereon by sending it to the handwriting expert, but  no such step was taken for  reasons best known to the prosecution.  Thus, we  are of the view that this circumstance also could not be proved.   

               The other circumstance, relied upon, is the recovery of gold chain  and ring belonging to the deceased from the accused persons upon the  disclosure statements made by them before the police.  It may be stated that  these are articles of common use and can be found out in any house.  That  apart, no family member of the deceased has identified these articles or claimed  that the same belonged to the deceased and/or he was wearing the same at the  time of the occurrence.  The only person who has identified the same  is Baldev  Raj (PW 11)-owner of a shop but it is not possible to place reliance upon his  evidence, firstly because  identification by him cannot be of any avail to the  prosecution  as he had no special reason to know about the identity of these  articles more so when he admits in  evidence that his house is at a distance of  5/6 kilometers from that of the deceased and nowhere it has been stated that he  ever met the deceased and secondly, because no test identification parade was  held for its identification.  

               In this view of the matter, we are of the opinion that the prosecution  has failed to prove circumstances alleged against the accused persons,  excepting that they hired a taxi, which alone cannot form the basis of conviction,  and the High Court has committed an error in upholding conviction of both the  accused persons.   

It may be stated that accused Balwinder Singh alias Binder whose  conviction was also upheld by the High Court  did not prefer any appeal to this  Court as such the same attained finality.  We find that cases of both the accused   stand on the same footing. Question arises  whether powers conferred upon this

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Court under Article 136 of the Constitution can be exercised suo motu to meet  the ends of justice in favour of the non-appealing accused as he is  entitled to be  granted relief in this appeal.  This question is no longer res integra  as the same  has been answered by this Court in a catena of decisions.  A Constitution Bench   in the case of Durga Shankar Mehta v. Raghuraj Singh and others AIR 1954  SC 520 laid down the scope of powers of this Court under Article 136 of the  Constitution wherein Bijan Kumar Mukherjea, J. , speaking for the Court, with  whom Mahajan, C.J., Bose, Bhagwati and Venkatarama Ayyar, JJ. concurred,  observed that "The powers given by Article 136 of the Constitution, however, are  in the nature of special or residuary powers which are exercisable outside the  purview of ordinary law, in cases where the needs of justice demand interference  by the Supreme Court of the land.  The Article itself is worded in the widest terms  possible. â\200¦â\200¦â\200¦.The Constitution for the best of reasons did not choose to fett er  or circumscribe the powers exercisable under this Article in any way. â\200¦â\200¦â\200¦This   overriding power, which has been vested in the Supreme Court under Article 136  of the Constitution, is in a sense wider than the prerogative right of entertaining  an appeal exercised by the Judicial Committee of the Privy Council in England. " The course which we propose to adopt is supported by a three Judge  Bench presided over by the then Chief Justice of India Shri Y.V.Chandrachud in  the case of Harbans Singh v. State of Uttar Pradesh and others (1982) 2 SCC  101 wherein death penalty of one of the accused was confirmed by the High  Court as well as this Court by dismissal of the special leave petition as also the  review petition and his petition for clemency was also rejected by the President.   When other accused  whose sentence of death was also confirmed by the High  Court moved this Court, his sentence of death was commuted to life  imprisonment.  Question had arisen before this Court as to whether in these  circumstances the same benefit could be extended to the accused  whose death  sentence was confirmed by this Court by dismissal of the special leave petition   as also review petition and this Court answered the same in the affirmative but it  was of the view that in the interest of comity between the powers of this Court  and the powers of President of India, it will be more in the fitness of things if the  Court were to recommend that the President may be so good as to exercise his  power under Article 72 of the Constitution to commute the death sentence  imposed upon the accused into life imprisonment as he had already considered  the mercy petition of that particular accused once and rejected the same.   This  Court,  accordingly, made the recommendations.  But, while doing so,  in relation  to powers of this Court it was observed thus  in paragraphs 19 and 20 of the  Judgment:   "19.    In the circumstances hereinabove stated, I am of the  opinion that it will be manifestly unjust to allow the death  sentence imposed on the petitioner to be executed.  The  question that, however, troubles me is whether this Court  retains any power and jurisdiction to entertain and pass any  appropriate orders on the question of sentence imposed on  the petitioner in view of the fact that not only his special  leave petition and review petition have been dismissed by  this Court but also the further fact that his petition for  clemency has also been rejected by the President.  20.     Very wide powers have been conferred on this Court  for due and proper administration of justice.  Apart from the  jurisdiction and powers conferred on this Court under  Articles 32 and 136 of the Constitution, I am of the opinion  that this Court retains and must retain, an inherent power  and jurisdiction for dealing with any extraordinary situation in  the larger interests of administration of justice and for  preventing manifest injustice being done.  This power must  necessarily be sparingly used only in exceptional  circumstances for furthering the ends of justice.  Having  regard to the facts and circumstances of this case, I am of  the opinion that this is a fit case where this Court should  entertain the present petition of Harbans Singh and this  Court should interfere."

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In the case of Akhil Ali Jehangir Ali Sayyed v. State of  Maharashtra JT 2002(2) SC 158, a special leave petition filed by an accused,  challenging his conviction upheld by the High Court, was dismissed by this Court  and prayer for review refused, but  when appeal was preferred  by another   accused, the Court altered his conviction from Section 302 of the Penal Code to  Section 304 part I of the Penal Code.  The question had arisen whether the same  benefit could be extended to the  accused whose special leave petition as well as  review petition had already been dismissed. Speaking for the Court, Thomas, J.,  while observing that  "Article 21 of the Constitution would not permit us to deny  the same benefit to the second accused, notwithstanding the fact that the SLP  and the review application filed by him have been dismissed by this Court"  extended the same benefit to the other accused.

Likewise in the case of Anil Rai v. State of Bihar (2001) 7 SCC  318,   while considering appeal of another accused, having altered his conviction  and sentence, the Court  extended same benefit to the non-appealing accused  whose case was identical in spite of the fact that his application for grant of  special leave to appeal was dismissed, though, not on merits but on account of  his failure to produce the proof of surrender.   

In the case of  Raja Ram and others v. State of M.P.(1994) 2 SCC  568, while altering conviction of an accused in appeal preferred by him,  this  Court extended the same benefit to non appealing accused whose conviction  was upheld by the High Court and the same attained finality  no appeal having  been preferred against the same.  In the instant appeal, the case of non-appealing accused Balwinder  Singh, who never moved this Court,  stands on a much better footing than the  cases of accused persons in the decisions referred to above whose applications  for grant of special leave to appeal had been dismissed by this Court. In the   case on hand, we have come to the conclusion that prosecution  failed to  establish its case beyond reasonable doubt against both the accused persons   which means that conviction of none of the accused was possible.  This Court  has repeatedly observed  that while hearing appeal of other accused, in case   Court comes to  the conclusion that no conviction of any accused is possible  meaning thereby non-appealing accused as well whose conviction had attained  finality, no appeal having been preferred against the High Court judgment, the  benefit of that decision must be extended to  non-appealing accused  in spite of  the fact that he has not challenged judgment of the High Court upholding his  conviction as this  Court has set up a judicious precedent for the purpose of  averting miscarriage of justice in similar situations.   Reference in this connection  may be made to  the cases of Chellappan Mohandas and others v. State of  Kerala AIR 1995 SC 90, Dandu Lakshmi Reddy v. State of A.P. (1999) 7 SCC  69, Bijoy Singh and another  v. State of Bihar (2002) 9 SCC 147, Gurucharan  Kumar & Anr. v. State of Rajasthan JT 2003(1) SC 60 and Suresh Chaudhary  v.State of Bihar (2003) 4 SCC 128 wherein while hearing appeal of another  accused against the judgment of High Court confirming the conviction, this Court   set aside the same as it was found that the prosecution failed to prove its case  against all the accused persons, including non-appealing one, and  directed that  the same benefit shall be extended to the non-appealing accused also though he  did not prefer any appeal before this Court against his conviction.    Apart from the salutary powers exercisable by this Court under Article 142  of the Constitution for doing complete justice to the parties, the powers under  Article 136 of the Constitution can be exercised by it in favour of a party even suo  motu when the Court is satisfied that compelling grounds for its exercise exist but  it should be used very sparingly with caution and circumspection inasmuch as  only in rarest of rare cases..   One of such grounds may be, as it exists like the  present case, where this Court while considering appeal of one of the accused  comes to the conclusion that conviction of appealing as well as non-appealing  accused both was unwarranted.  Upon the aforesaid conclusion arrived at by the  apex Court of the land, further detention of non-appealing accused, by virtue of  judgment rendered by the High Court upholding his conviction, being without any  authority of law, infringes upon right to personal liberty guaranteed to the citizen  as enshrined under Article 21 of the Constitution.  In our view, in cases, akin to  the present one, where there is either a  flagrant violation of mandatory provision  of any statute or any provision of the Constitution, it is not that this Court has a

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discretion to exercise its suo motu power but a duty is enjoined upon it to  exercise the same by setting right the illegality in the judgment of the High Court   as it is well settled that illegality should not be allowed to be perpetuated and  failure by this Court to interfere with the same would amount to allowing the  illegality to be perpetuated.  In view of the foregoing discussion, we are of the  opinion that accused Balwinder Singh alias Binder is also entitled to be extended  the same benefit which we are granting in favour of the appellant.          Accordingly, the appeal is allowed and the conviction and sentence of the  appellant Pawan  Kumar  and  accused  Balwinder  Singh @ Binder are set aside  

and they are acquitted of the charge.  The appellant who is in custody is directed  to be released forthwith, if not required in any other case.  Accused Balwinder  Singh @ Binder, if in custody, is also directed to be released forthwith, if not  required in any other case.