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PETITIONER: PREM THAKUR

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT17/11/1982

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) REDDY, O. CHINNAPPA (J)

CITATION:  1983 AIR   61            1983 SCR  (1) 822  1982 SCC  (3) 462        1982 SCALE  (2)1057  CITATOR INFO :  R          1989 SC1890  (31)  R          1990 SC  79  (10)  R          1991 SC 917  (8)

ACT:      Evidence-Circumstantial     evidcnce-How     evaluated- Circumstances relied  upon as  establishing  involvement  of accused must clinch the issue of guilt.

HEADNOTE:      The prosecution case against the appellant was that he, along with  five workers migrated from Nepal and that at the time of  occurrence all  of them  were working  in Punjab as agricultural labourers.  Out of  a large sum of money earned by them  as wages they spent a part and the balance was left with one  of the  five deceased. On the evening prior to the day of  occurrence the  appellant was  found by the employer cooking food for himself and his companions but when he went to his  field the following morning he noticed the five dead bodies of  the co-workers were smouldering in the pit of his tube  well.  Post-mortem  examination  of  the  dead  bodies revealed several  ante-mortem injuries,  most of  which were lacerated wounds.  Prom that  day onwards  the apellant  was found missing.      The trial Court, accepting the circumstantial evidence, convicted and  A sentenced  the appellant to death. The High Court affirmed  the conviction  on three  grounds: (i) since the money  was not  found on the person of the deceased with whom it  was kept,  the motive was theft; (ii) the appellant was last  seen in  the company of all the deceased and (iii) the appellant absconded thereafter to conceal his presence.      Allowing the appeal, ^      HELD: It  is impossible  to believe  that the crime was committed in  the manner  alleged by the prosecution or that the appellant  could  possibly  have  committed  it  in  the circumstances alleged. [826 C-D]      In a  case which  depends  wholly  upon  circumstantial evidence, the  circumstances must  be of such a nature as to be capable  of supporting  the exclusive hypothesis that the accused is  guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the

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involvement of  the accused  in the  crime must  clinch  the issue of  Built. Very  often, circumstances  which establish the commission  of an offence in the abstract are identified as circumstances  which prove  that the  prisoner before the Court is  guilty of  a crime  imputed to  him. An  a  priori suspicion that the accused has committed 823 the crime  transforms itself into a facile belief that it is he who  has committed the crime. Human mind plays that trick on proof  of the  commission of  a crime  by  resisting  the frustrating feeling  that no  one can  be identified  as the author of that crime. [826 G-H]      In the  instant case  the circumstances  attendant upon the incident  militate entirely  against the conclusion that the five murders were committed R by the appellant. Tho fact that the  assailant robbed  the victims  of the mopey cannot necessarily lead to the conclusion that it was the appellant who robbed  them of  their money. That the appellant and his co-workers were  paid a  fairly large sum of money was known to others  apart from  the appellant  and his Companions. No part of  the money was traced to the appellant and therefore be could not be connected with the crime. [825 C-E]      Assuming that  the deceased  were administered  liquor, medical evidence did not know that tho liquor consumed would have induced  such stupor  verging upon  hypnosis It is also incredible that  the five  persons done to death by a single individual were  under such a heavy spell of sleep that none of them woke up when the other or others were attacked. [826 D-F]      The fact  that the  appellant  was  last  seen  in  the company of  the deceased  and that he was not present at the place from  which the  dead bodies  were recovered  the next morning are equivocal circumstances on which it is hazardous to base the conviction. [827 D]      The circumstance  that the appellant absconded from the place of  occurrence does not lead to the conclusion that he had made himself scarce in order to conceal his presence. If he was  found by the team of investigating officers in Nepal going about  openly, it  is difficult  to hold  that he  had absconded to Nepal. [825 G-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 187 of 1982.      Appeal by  special leave  from the  judgment and  order dated 7.10.81  of the  Punjab  and  Haryana  High  Court  in Criminal No.466-DB/81 .      N.R. Agarwala Amicus Curiae for the Appellant.      Ashwani Kumar and D.D. Sharma for the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD,  C.J.  The  appellant,  Prem  Thakur,  was convicted by  the learned  Sessions Judge,  Rupnagar,  under sections 824 302 and  201 of  the Indian  Penal Code and was sentenced to death for  the former  offence. The  conviction and sentence having been  upheld by the High Court of Punjab and Haryana, the appellant has filed this appeal by special leave.      The charge  against the  appellant is that he committed the murder of five co-labourers on the night between the 8th and 9th  November, 1980  in the  village of  Rolu Majra. The case of  the prosecution is that the appellant came to India from Nepal  in search  of  work  along  with  his  companion

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workers and  a few  others. They  worked with  one  Mohinder Singh for  about 14  days for  which they were paid a sum of Rs. 2,900.  The appellant  and his co-workers spent a sum of Rs. 800  therefrom and the balance of Rs. 2100 was kept with Rama  Nand  who  was  one  of  the  five  coworkers  of  the appellant. The  appellant and his companions thereafter went to the  village of Rolu Majra where they worked in the field of Ujjagar  Singh. On  the  evening  of  the  day  following Diwali, Ujjagar  Singh saw  the accused  cooking  meals  for himself and  his five companions. When Ujjagar Singh went to the field  next morning  at 8  00 a.m, he noticed that smoke was coming  out of  the pit  of his tubewell. When he peeped into the  well he  saw five dead bodies smouldering. Ujjagar Singh lodged  information of the offence with A.S.I. Jarnail Singh. The  post-mortem examination  on the five dead bodies revealed several ante-mortem injuries, most of which were in the nature of lacerated wounds.      Since Ujagar  Singh  had  seen  the  appellant  in  the company of  five deceased  persons and the appellant was not to be  seen anywhere,  the suspicion of the police naturally fell upon  him. The  case of  the  prosecution  is  that  on December 1,  1980, the  appellant was  arrested while he was working near the tubewell of Sohan Singh.      There is  no direct  evidence to  connect the appellant with the  five murders.  In support  of the charges levelled against him,  the  prosecution  relied  upon  circumstantial evidence which  consisted of:  (i) motive  for the  offence; (ii) the  fact that  the appellant  was  seen  last  in  the company  of  the  deceased  on  the  evening  preceding  the discovery of  the dead  bodies;  (iii)  the  fact  that  the accused had absconded; (iv) the extra-judicial confession of the appellant;  (v) the  recovery of a ’Tangli’ in pursuance of the statement made by the appellant; (vi) the recovery of the dead  bodies from  the pit  near the tubewell of Ujjagar Singh; and (vii) 825 false statement  made by the appellant to Ram Ishar, the son of one  of the  deceased, Rama  Nand, that  the latter would return to the village after Puran Mashi.      The learned  Sessions  Judge  accepted  some  of  these circumstances as  proved and convicted the appellant for the five murders  on the  basis of those circumstances. The High Court has  relied  upon  three  circumstances,  namely,  (i) motive, (ii)  the fact  that the  appellant was seen last in the company  of the  deceased and  (iii) the  conduct of the appellant after the occurrence.      As regards  motive, the  High  Court  observes  in  its judgment that  since no  money was found on the dead bodies, theft was  obviously the  motive for  the crime. That may be so, but  we are unable to understand how the fact that theft was the  motive for the crime can connect the appellant with the crime.  It is  quite likely that whosoever committed the five murders  robbed the victims of the money which they had on their  person, but  that cannot  necessarily lead  to the conclusion that  it is the appellant who robbed the deceased of their money. The fact that a fairly large sum was paid to the appellant and his co-workers by way of their wages would be  known  to  others  apart  from  the  appellant  and  his companions. No part of the money was traced to the appellant and therefore,  we are unable to accept that the accused can be connected  with the  crime merely  because the motive for the crime was theft.      The circumstances  that the  appellant was last seen in the company of the deceased can be accepted as proved but no inference  can   arise  therefrom  that  the  appellant  had

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committed their  murder. The  appellant was working with the deceased and  others and there was nothing unnatural. in the appellant being  in the  company of  his companions  on  the evening before the murders were committed.      In so  far as  the  allegation  that  the  accused  had absconded is  concerned, it  is not  easy to  rely upon that circumstance as  leading to  the conclusion that he had made himself scarce  in order  to conceal his presence. The story of the  prosecution that  he was 3 arrested in Punjab itself has been  disbelieved by  the High Court according to which, the  appellant  was  brought  from  Nepal  by  the  team  of Investigating officers.  The appellant  belongs to Nepal and if he was found in Nepal going about openly, it is difficult to accept the charge that he had absconded to Nepal. 826      The circumstance that the appellant told Ram Ishar that the latter’s  father Rama  Nand would  return to the village after Puran  Mashi cannot  clinch the issue unless one stars with the  presumption that  the appellant  had committed the crime. But then one cannot put the cart before the horse. At the highest,  what the appellant said to Ram Ishar may raise a cloud of suspicion but nothing more.      We have considered carefully the entire evidence in the case and  the various facts attendant upon the five murders. It seems  to us  quite impossible  to believe that the crime was committed  in the  manner alleged  by the prosecution or that the  appellant could  possibly have committed it in the circumstances alleged.  It is  said that  the five  deceased persons were administered liquor, that after drinking liquor they lapsed into a deep spell of sleep, that while they were asleep they  were killed,  that they were carried one by one to A  the bottom  of a  35 ft. tubewell and that thereafter, they were set on fire. The post-mortem notes and the medical evidence show that the liquor consumed by the deceased could not have  produced unconsciousness  How it could induce such stupor verging upon hypnosis is more than one can reasonably imagine. The  prosecution case  requires for its success the incredible assumption that the five persons done to death by a single  individual were  under such a heavy spell of sleep that none  of them  woke up  when the  others were attacked. When the  first of  the five  victims was attacked, he would have shrieked  or shouted  and thereby  the others  would be aroused from  their  sleep.  They  were  young,  able-bodied labourers. It  puts quite  some strain  on our  credulity to accept that a single person could have finished off his five companions in  the  fiction-like  manner    alleged  by  the prosecution.      The High  Court could not but be aware of the principle that in  a case  which depends  wholly  upon  circumstantial evidence, the  circumstances must  be of such a nature as to be capable  of supporting  the exclusive hypothesis that the accused is  guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the envolvement of  the accused  in the  crime must  clinch  the issue of  guilt. Very  often, circumstances  which establish the commission  of an offence in the abstract are identified as circumstances  which prove  that the  prisoner before the court is  guilty of  the crime  imputed to  him. An a priori suspicion  that   the  accused   has  committed   the  crime transforms itself into a facile belief 827 that it  is he who has committed the crime. Human mind plays that A  trick on  proof of  the commission  of  a  crime  by resisting  the  frustrating  feeling  that  no  one  can  be identified as  the author  of that crime. In the case before

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us, there  is no  doubt that  five  persons  were  murdered. Unquestionably, every  effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against  the conclusion  that the five murders were committed by  the appellant.  The very  pattern of the crime belies that  conclusion. We  are unable  to share  the  High Court’s view  that the  evidence showing "that the appellant was present  with the  deceased persons  on the  evening  of November 8,  1980 and  he was then missing from there on the next  morning   proves  the  offences  alleged  against  the appellant beyond  any shadow  of doubt".  In support  of its conclusion that the appellant had committed the murders, the High Court  has even  pressed into service the circumstances that the  appellant was not present ’at the place from-which the dead  bodies were recovered" the next morning. These are equivocal circumstances on which it is hazardous to base the conviction.      In the  result we  allow  the  appeal,  set  aside  the conviction of  the appellant  on  all  the  counts  and  the sentences imposed  upon him  including the sentence of death and acquit  him of  all the  charges. He  shall be  released forthwith. P.B.R.                                       Appeal allowed. 828