TEJINDER SINGH @ KAKAversusSTATE OF PUNJAB

                       [2013] 2 S.C.R. 802


A                  TEJINDER SINGH @ KAKA
                                 v.
                       STATE OF PUNJAB
             (Criminal Appeal No. 1279 of 2008 etc.)
                         APRIL 11, 2013
B
       [CHANDRAMAULI KR. PRASAD AND V. GOPALA
                     GOWDA, JJ.]

        PENAL CODE, 1860:
c
       ss. 302, 376(2)(g), 201 and 506 - Gang rape and murder
  - Conviction by trial court - Affirmed by High Court - Held:
  There is major discrepancy in the testimony of witnesses and
  also registration of FIR on the basis of information furnished
0 by the informant - Further, the Sarpanch to whom the accused
  were stated to have made confessional statement, reported ·.
  the matter to police after 16 days - His evidence. is not
  believable - The narration of the alleged offences against the
  appellants and other accused by prosecution witnesses is
  most unnatural and unbelievable to convict and sentence
E them - Neither trial court nor High Court has examined their
  testimony properly by re-appreciating the same to record
  findings on the charges - There is no material evidence on
  record to convict and sentence the appellants - Their
  conviction and sentences are set aside - Circumstantial
F evidence.

      Extra-judicial confession - Held: Is a weak form of
  evidence and based on such evidence no conviction and
  sentence can be imposed upon the appellants and other
G accused.

       CONSTITUTION
       '      ,     OF IND/A, 1950:

       Art. 142 - Benefit of acquittal extended to non-appellant-

H                              802
 TEJINDER SINGH @ KAKA v. STATE OF PUNJAB               803


accused also - Penal Code, 1860 - ss. 302, 376 (2) (g), 201,   A
404 and 506 /PC.

     An FIR was lodged at the Police Station on 25.5.2000
for offences punishable u/s 302, 376{2){g), 148, 201 and
404 read with s. 34 IPC, alleging that on 24.5.2000 at about   8
9 A.M. the deceased had gone to the fields to bring fodder
and did not return. At about 8 A.M. on 25.5.2000, the body
of the deceased was found buried in a fresh dug pit in
the sugar cane field belonging to accused 'SL'. The trial
court convicted accused 'GS' u/ss 302, 376{2){g) and 506       C
IPC amd accused 'RV'. 'HS', 'BS' and SL u/ss 302,
376{2)(g) and 404 IPC. All these five accused were
sentenced to imprisonment for life. Accused 'TS' was
convicted u/s 201 IPC and sentenced to 7 years RI. The
High Court affirmed the conviction and the sentence.
Except accused 'GS', all other accused filed the appeals.      D
    Allowing the appeals, the Court
     HELD: 1.1 In so far as appellant 'TS' is concerned,
the charge is u/s 201 IPC. As could be seen from the           E
evidence of PW-8 and PW-9, there is major discrepancy
between. their statements of evidence. PW-8 has stated
that appellant 'TS' started digging a pit with spade in the
sugarcane field, whereas PW-9 has stated that the said
appellant was not present at that time. In view of the major   F
discrepancy and contradiction between the statements
of the witnesses, it not only creates a grave suspicion
regarding the said appellant being part of the offence but
also makes his presence doubtful at the place of
occurrence. Therefore, placing reliance by trial court
upon the testimony of the said witnesses and recording         G
the finding against appellant 'TS' on the charge and
passing an order of conviction and sentence which is
affirmed by the High Court is without proper appreciation
of the major discrepancy in the statements of PWs 8 and
9 regarding the presence of appellant 'TS' at the place of     H
    804      SUPREME COURT REPORTS             [2013] 2 S.C.R.

A occurrence. The courts below have also failed to take
  into consideration the evidence of PW-10, wherein she
  had deposed about the presence of other accused near
  the place of occurrence, but she has not named appellant
  'TS. Moreover, there is nothing substantive and positive
B evidence placed on record against appellant 'TS" by the
  prosecution to prove its case against him. It cannot be
  said that the prosecution has proved its case beyond
  reasonable doubt. The benefit of doubt should have
  been extended to 'TS' in the impugned judgment by the
c High Court while re-appreciating the evidence on record
  in exercise of its jurisdiction. [para 18, 20 and 21] [817-D-
  E, F-H; 818-A-E, F-H]
          Sukhram Vs. State of Maharashtra 2007 (9) SCR 44   =
    2001 (7) sec 502 - relied on.
D
       1.2 Thus, this Court holds that there is major
  discrepancy in the testimony of witnesses PW-8 and PW-
  9 and also registration of FIR on the basis of information
  furnished by the informant. The finding of the trial court
E in this regard is erroneous in law for the reason that the
  evidence of PWs 8 and 9 has raised serious suspicion
  and doubt. Therefore, the same must be extended to the
  other appellants. [para 22] [820-A-C]
       1.3 Further, PW-7, to whom the co-accused namely,
F 'GS', 'HS' and 'SL', made a disclosure statement
  describing the whole incident to him on 12.06.2000, has
  neither recorded the alleged extra judicial confession nor
  made the disclosure of the said statement within
  reasonable time but took 16 days to disclose the extra
G judicial confessions made by the accused persons to
  inform the police. The delay In informing the police
  regarding the extra judicial confessional statement
  alleged to have made to him by some of the accused has·
  not been explained by PW-7 and the reason sought to be
H given by him for non disclosure of the same to the police
     TEJINDER SINGH @ KAKA v. STATE OF PUNJAB              805


    cannot be accepted by this Court as it is not natural and     A
    also not satisfactory. His evidence is not believable.
    Therefore, the reliance placed upon the evidence of PW-
    7 by both the trial court and the High Court to convict the
    appellant and sentencing him for the offence u/s 201 IPC
    is erroneous in law. [para 23 and 25] [820-D-F; 823-G]        B
       Dwarkadas Gehanmal Vs. State of Gujarat 1999 (1)
    SCC57 - relied on.
        1.4 Besides, the extra judicial confession is a weak
    form of evidence and based on such evidence no                C
    conviction and sentence can be imposed upon the
    appellants and other accused. [para 24] [821-B]
        Pancho Vs. State of Haryana 2011 (12) SCR 1173       =
    2011 (10) SCC 165; and Sahadevan & Anr. Vs. State of          o
                                  =
    Tamil Nadu 2012 (4) SCR 366 2012 (6) SCC 403 - relied
    on.
         1.5 In so far as the other appellants in connected
    appeals are concerned, the trial court after placing
    reliance upon the evidence of PW-7, PW-8 and PW-9 has         E
    recorded the findings on charges against them, which is
    wholly untenable in law. Neither the trial court nor the
    High Court has examined their testimony properly by re-
    appreciating the same to record the findings on the
    charges. The narration of the alleged offenc~s against        F
    the appellants and other accused by the prosecution
    witnesses is most unnatural and unbelievable to convict
    and sentence them. The courts below should have
    appreciated the evidence on record properly ai;td should
    not have believed the statement of evidence of PW-8 for       G
    the reason that neither he has disclosed the alleged
    offences said to have been committed by the appellants
    and other accused nor did he depose before the trial
    court or to anyone of the villagers. The explanation given
    by him that he was held out of fear and, therefore, he did    H
•
    806    SUPREME COURT REPORTS              [2013] 2 S.C.R.


A not disclose the incident to anyone of the villagers cannot
  be accepted as it is unnatural. Therefore, the evidence of
  PW-8 cannot be believed by this Court. [para 27] [824-D-
  H; 825-A]
      1.6 The testimonies of PW-8 and PW-9 would clearly
B go to show that there is a discrepancy regarding the
  narration of the offences said to have been committed by
  the accused. Therefore, the courts below should not
  have placed reliance on the evidence of PW-8 and PW-9
  and recorded the finding that the charges levelled against
C the appellants/accused were proved. Both the courts
  below have committed serious error in placing reliance
  upon the untrustworthy testimonies of PW-8 and PW-9
  and passing an order of conviction and sentence against
  them. Further, from the evidence of the other witness,
D namely, PW-10, the offence alleged to have been
  committed by said accused also cannot be accepted.
  [para 27 & 28] [825-A-C; D-E]
      1.7 The courts below have convicted and sentenced
  the appellants ori the charges framed against them based
E on the circumstantial evidence, even though the chain of
  events are not proved by the prosecution to bring home
  the guilt of the appellants/accused on the charges leveled
  against them. The concurrent finding recorded by the
  High Court on the charges is opposed to the legal
F principles laid down in this regard by this Court. The
  conviction of the appellants/accused for the alleged
  offence on the basis of evidence of the prosecution
  witnesses suffers from error in law. [para 28 and 31] [825-
  G-H; 826-H; 827-A-B]
G     1.8 There is no material evidence on record to convict
  and sentence the appellants. After going through the
  deposition of the prosecution witnesses, this Court is
  satisfied that the case of the prosecution against the
  appellants/accused on the charges creates suspicion and
H doubt in the absence of legal evidence on record and.
  TEJINDER SINGH @ KAKA v. STATE OF PUNJAB 807


therefore, the same should enure to the benefit of              A
accused for their acquittal. Their conviction and
sentences are set aside. [para 30 and 32] [826-G; 827-C]

    2. Accused, viz. 'GS' who has also been convicted
u/ss 302, 376(2)(g) and 506 IPC and sentenced to undergo        8
imprisonment as awarded by trial court and affirmed by
the High Court is extended the same benefit in exercise
of jurisdiction of this Court under Article 142 of the
Constitution, and he is also directed to be released. [para
33] [827 -D-E]
                                                                c
   T. Subramanium v. State of Tamil Nadu 2006 (1) SCR
     =
180 (2006) 1 sec 401 - cited.
                     Case Law Reference:
    2006 (1) SCR 180         cited                 para 12      D

    1999 (1) sec 57           relied on            para 12
    2011 (12) SCR 1173        relied on            para 12
     2012 (4) SCR 366         relied on            para 12      E
    2007 (9) SCR 44          relied on             para 12
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1279 of 2008.
                                                                F
    From the Judgment and Order dated 05.06.2006 of the
High Court of Punjab and Haryana at Chandigarh in Crl. A. No.
716-DB of 2004.
                            WITH
Crl. A. No. 1280, 1281 and 1282 of 2008.                        G

     K.T.S. Tulsi, Fakhruddin (A.C.), Kuber Boddh, Kartikay
(For Arun Kumar Beriwal), Sheeba Fakhruddin, Surya Kamal
Mishra for the Appellant.
                                                                H
    808      SUPREME COURT REPORTS                [2013) 2 S.C.R.

A      ·Sanchar Anand, MG, Arun K. Sinha, Kuldip Singh for the
    Respondent.

          The Judgment of the Court was delivered by
       V. GOPALA GOWDA, J. 1. These Criminal Appeals are
B directed against the Judgment and Order dated 05.06.2006
  passed by the Punjab and Haryana High Court at Chandigarh
  in Criminal Appeal No 716-DB of 2004. The Punjab and
  Haryana High Court affirmed the conviction and sentence of the
  accused for offences punisnable under Sections 302,
C 376(2)(g), 148, 201,404 read with Section 34 of the Indian
  Penal Code with different sentences of imprisonment which will
  be referred to in the later portion of the judgment to run
  concurrently and fine imposed upon them. The same is under
  challenge in these appeals by the appellants urging various
D grounds. However, the High Court acquitted the appellants of
  the charges framed under Sections 3 and 4 of the Scheduled
  Castes and Scheduled Tribes (Prevention of Atrocities) Act,.
  1989.
       2. The appellants have prayed for allowing the appeals by
E setting aside the impugned judgment of the High Court and to
  acquit them from all the charges urging various facts and
  grounds in support of the questions of law framed in these
  appeals.
F        For proper appreciation of rival factual and legal
    submissions made by the learned counsel for the parties the
    relevant facts in relation to the prosecution case are briefly
    stated as under:
       3. On 25.05.2000, FIR No. 73 was lodged at Police
G Station Banga, Nawanshahar on the basis of statement of
  Nago Ram, S/o Munshi Ram who is relative of Seeso, the
  deceased, for offences under Sections 302, 376(2) (g}, 148,
  201, 404 read with Section 34 IPC alleging that on 24.05.2000
  at about 9.00 a.m. the deceased went to the field to bring fodder
H and when she did not return home till afternoon, the informant
 TEJINDER SINGH @ KAKA v. STATE OF PUNJAB 809
           [V. GOPALA GOWDA, J.]
along with family members of the deceased and villagers               A
started searching her but they could not gather any information.
It was alleged that on 25.05.2000 at 8.00 a.m., the informant
along with other people went to the sugarcane field searching
for the deceased where they found a fresh pit dug filled back
with earth inside which the dead body was lying buried in the         B
soil covered with a palli. It was further alleged that the gold ear
rings, silver bangles and anklets from the dead body of the
deceased were found missing. It was alleged by the informant
that Sunny Lal Paswan, the owner of the land along with three-
four persons after committing the murder buried the body of the       c
deceased.
     4. On the basis of the registration of the said FIR the case
was investigated and report under Section 173 of the Code of
Criminal Procedure was filed before the committal court and
thereafter it has committed the case to the learned Additional        D
Sessions Judge, Nawanshahar and the case went for trial as
the accused pleaded not guilty of charges and prayed to try
them for the charges. The charges were framed for offences
punishable under Sections 302, 376(2)(g), 148, 201, 404 read
with Section 34 IPC and also under Sections 3 and 4 of the            E
 Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The prosecution witnesses PW-1 to PW-
 15 were examined and the statement of evidence of the
witnesses were recorded by the learned Addi. Sessions Judge.
The learned Additional Sessions Court has convicted the               F
accused with various sentences for different offences along with
fine as has been set out in detail in the later part of the
judgment. The same is affirmed by the High Court by passing
the impugned judgment. The correctness of the same is
challenged in these appeals by the appellants by raising certain      G
legal questions and urging grounds in support of the same.
     5. It is contended by the learned senior counsel for the
appellant Mr. K.T.S. Tulsi that the High Court ignored the vital
aspect of the case, namely, PW-9 Niranjan Ram, the so-called
sole eye witness of the alleged offences who has categorically.       H
    810      SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A stated in his evidence that on 24.05.2000 at about 10.30 a.m.
  in order to ease himself, he had gone towards the eastern side
  of the village where a fair was being held. In order to get his
  hands washed he had gone towards the tube well, where he
  heard some shrieks, and found that Seeso, wife of Bhajan Ram
8 was lying on the ground and accused Gurdeep Singh was
  holding her arms, accused Balwinder Singh and Rajinder
  Kumar had lifted the legs of Seeso upwards and accused
  Harnek Singh was committing rape on her. Accused Sunny Lal
  and Harnek were holding the arms of Seeso. Thereafter
C accused Gurdeep Singh gave a Kassi blow on the neck of
  Seeso. On seeing this he shrieked. On seeing PW-9, the
  accused Gurdeep Singh chased him with a Kassi in his hand
  and threatened him that in case he discloses the incident in the
  village, he and his family will be dealt with the same manner.
  Out of fear because of the threat having been inflicted by
D Gurdeep Singh, PW-9 did not disclose the incident to any one
  of the villagers or to the family members of the deceased.
        6. It is urged by Mr. K.T.S. Tulsi, the learned senior counsel
  for the appellant in Crl.A. No.1279 of 2008 and Mr. Fakhruddin,
E the learned senior counsel who is appearing as amicus curiae
  in the connected appeals that the statement of evidence of the
  witnesses narrating the offences said to have been committed
  by the appellants is most unnatural and improbable to believe.
  This aspect of the matter in relation to these appellants is not
F properly appreciated by the High Court while affirming the
  conviction and sentences imposed upon them by the learned
  Additional Sessions judge. The learned senior counsel Mr. Tulsi
  submits that the High Court placing reliance upon the testimony
  of PW-9 by extracting his brief statement of evidence in the
G impugned judgment has concurred with the conviction and
  sentences imposed upon the appellant by the Additional
  Sessions judge and the same is erroneous on the part of the
  High Court. Hence, he submits that the same is liable to be set
  aside.

H
   TEJINDER SINGH@ KAKA v. STATE OF PUNJAB                      811
             [V. GOPALA GOWDA, J.]
      7. It.is further contended by the learned senior counsel that    A
 the High Court has erroneously placed reliance upon the
 testimony of PW-8 Chet Ram, the brother-in-law of the
 deceased, who is not even an eye-witness to the incident. PW-
 8 deposed in his evidence that he saw accused Gurdeep
   Singh, Harnek Singh, Balwinder Singh, Tejinder Singh and            B
 Sunny Lal Paswan carrying some heavy material in a palli and
 they had placed the same in the sugarcane field. Accused
 Tejinder Singh dug a pit in the field with the help of a spade
 and buried the material underneath the earth. On his asking
 them as to what they had done, accused Gurdeep Singh told             c
 that he will also be treated in the same manner and uttered the
 words "Kutia Chamara Tera bhi iho hal karange". Thereafter the
 accused Gurdeep Singh with a Kassi in his hand, ran towards
 him. Out of fear, he ran away towards the village.

       8. The learned senior counsel further submits that even         D
  presuming the aforesaid witness's statement to be true, it is
· very unusual and unnatural on his part being the brother-in-law
  of the deceased in not informing the incident either to the family
  members or to the police. This aspect of the matter has not
  been considered by the High Court thereby, it has overlooked         E
  the major discrepancy in the statements of witnesses between
  PW-8 and PW-9, on whose evidence the whole prosecution
  case is based. PW-8 has stated in his evidence that appellant
  Tejinder Singh started digging a pit while PW-9 has
  categorically deposed in his evidence that accused Tejinder          F
  Singh was not there at that time.

      9. The deposition of the aforesaid witness creates a grave
suspicion not only regarding the appellant Tejinder Singh being
part of the conspiracy to commit offences but also his presence        G
at the place of occurrence. Non consideration of this major
discrepancy in the evidence of the aforesaid witness both by
the Trial Court as well as the High Court, has rendered the
findings on the charges erroneous in law and therefore the same
is liable to be set aside. Further, the High Court has failed to
                                                                       H
    812       SUPREME COURT REPORTS                [2013) 2 S.C.R.


A   re-appreciate the evidence of PW-10 Krishna, who has in her
    deposition, stated the names of the accused persons but she
    has not named the appellant Tejinder Singh's involvement in
    committing offences as alleged, which casts a major suspicion
    in the statement of PW-8 Chet Ram.
B
       10. It is further contended by the learned senior counsel
  appearing on behalf of the appellant Tejinder Singh in Crl.A. No.
  1279 of 2008 that the High Court did not follow the well
  established principle of law that in appeal against the conviction,
C the appellate court has the duty to appreciate the evidence on
  record and benefit of reasonable doubt has to be given to the
  accused which has not been done by it. In support of this
  submission, reliance is placed upon the decision of this Court
  in the case of T. Subramanium v. State of Tamil Nadu 1 •
  Further, elaborating his submission, he has urged that if two
D views are possible from the very same evidence, it cannot be
  said that the prosecution had proved its case beyond
  reasonable doubt. There is a grave doubt regarding the
  presence of appellant Tejinder Singh at the place of occurrence,
  which goes to the root of the prosecution case as far as the
E role of the appellant is concerned in committing offences as
  alleged.

        11. The learned senior counsel has further contended that
  the High Court has erroneously accepted the evidence of
F another witness Bhupinder Singh PW-7, (the erstwhile
  Sarpanch) treating him as a credible witness ignoring the
  inherent improbabilities in his-statement of evidence regarding
  the alleged extra judicial confession said to have been made
  to him by the three accused persons other than the appellant
G in Crl.A. No.1279 of 2008 and the trial court and the High Court
  having placed reliance upon the same recorded the finding that
  the charge against the said appellant is proved and conviction
  and sentence imposed upon him for the alleged offence. This
  finding of the courts below is bad in law and is liable to be set

H   1.   (2006) 1 sec 401.
     TEJINDER SINGH@ KAKA v. STATE OF PUNJAB                 813
               [V. GOPALA GOWDA, J.]
aside. According to the deposition of PW-7, who has deposed         A
that on 28.5.2000 accused Gurdeep Singh, Harnek Singh and
Sunny Lal Paswan made a disclosure statement to him
describing the whole incident. He has disclosed the same to
the police after 16 days of the alleged disclosure statements
said to have made to him by the said accused and he had             B
handed over the accused to police custody on 12.06.2000. The
reason regarding the delay of 16 days given by him was that
he was busy with some work and therefore, there was an
inordinate delay of 16 days in informing the incident . to the
police remains unsatisfactory on the part of the said witness       c
to whom the extra judicial confession alleged to have been
made by the co-accused. This renders the conduct of PW-7
doubtful and the content of his testimony suspicious in nature.
Further, he being the Sarpanch of the village instead of taking
instant action against the accused persons who alleged to
                                                                    0
have committed rape, murder and destroyed the evidence,
informed the police after a lapse of 16 days. This cannot be
believed by this Court.

     12. It is further contended by him that it is pertinent to
mention that the urgency of the work with which he was busy         E
was nowhere explained by him. Learned senior counsel placed
reliance upon judgment of this Court in Dwarkadas Gehanmal
Vs. State of GujaraF in support of his legal submission that if
the conduct of the witness is inconsistent with the conduct of
an ordinary human being then his testimony has no credence          F
for acceptance. Paragraph 14 of Dwarkadas Gehanmal's case
(supra) reads as under:

       "14 ........ Deva Ram PW-4 would not have waited for five
       days to disclose the alleged confession made by the          G
       appellant to him but on the contrary, he would have either
       on the same evening gone to the police station to lodge a
       complaint on the basis of the confessional statement of
       appellant i=ind/or would have gone to the house of
2.    (1999) 1 sec 57.                                              H
    814       SUPREME COURT REPORTS               [20f3) 2 S.C.R.


A         Noorbhai to inform the family members about the
          confessional statement of the appellant.. .. ."

    Therefore, the learned senior counsel contends that the
    observations made in the above referred case would support
    the case of the appellants herein.
8
       Learned senior counsel has placed reliance on various
  other judgments of this Court wherein extra judicial confession
  was made. Relevant paragraphs will be extracted in the
  appropriate reasoning portion of this judgment to appreciate
C the legal submission made by him and to set aside the
  impugned judgment and to pass an order of acquittal.
         13. The learned senior counsel Mr. Tulsi has relied upon
    the following cases in support of his legal submissions
    co.ntending that the same would with all fours be applicable to
0
    the case in hand, namely, Pancho Vs. State of Haryana3 ,
    Sahadevan & Anr. Vs. State of Tamil Nadu4 and Sukhram Vs.
    State of Maharashtra 5 •                                  '


       14. The learned senior counsel, Mr. Fakhruddin who is
E appearing for the appellants in the connected appeals has also
  made his submissions urging the similar grounds as urged by
  Mr. Tulsi, the learned senior counsel for the appellant in Crl.A.
  No.1279 of 2008 regarding the evidence of PW-7 in relation
  to the extra judicial confessional statement alleged to have
F made to him by some of the accused. Further, he has invited
  our attention to the depositions of prosecution witnesses to
  show that the findings recorded against the accused by the
  courts below is not only erroneous but also suffer from error in
  law and therefore the same is liable to be set aside by allowing
G the appeals.
          15. On the other hand, Mr. Sanchar Anand, the learned
    3.   c2011) 10 sec 165.
    4.   c2012) e sec 403
H 5. c2001) 1 sec 502.
 TEJINDER SINGH@ KAKA v. STATE OF PUNJAB                            815
           [V. GOPALA GOWDA, J.]
Additional Advocate General for the State of Punjab, has                    A
sought to justify the findings and reasons recorded on the
charges framed against the appellants herein by the courts
below. The trial court being the court of original jurisdiction, in
exercise of its power, appreciated the evidence on record and
-answered the charges levelled against the appellants and other             B
accused holding that they are guilty of the offences committed
against the deceased and accordingly after hearing them, the
 learned Sessions judge has imposed sentence of
 imprisonment upon the accused for different offences as
 mentioned in the table which is extracted hereunder:                       c
 Name of     Under              Sentence
 convict     Section

Gurdeep     302 IPC            Life imprisonment and fine of Rs.10,000/-
Singh                          in default further RI for one year.          D
            ~76(2)(g)IPC       Life imprisonment and fine of Rs.10,000/-
                               in default further RI for one year.

                               RI for 5 years and to pay fine of Rs.5000/
                               or in default further RI for 6 months.       E
            506 IPC
 Rajinder   302 IPC            Life imprisonment and fine of Rs.10,000/-
 Kumar                         in default further RI for one year.

            376(2)(g)IPC Life imprisonment and fine of Rs.10,000/-          F
                         in default further RI for one year.

                               RI for 1 year and to pay fine of Rs.1000/
                               or in default further RI for 1 month.
            404 IPC
Harnek     302 IPC             Life imprisonment and fine of Rs.10,000/-    G
Singh                          in default further RI for one year.
alias Naka
                           .

            376(2)(g)IPC Life imprisonment and fine of Rs.10,000/-
                         in default further RI for one year.
                                                                            H
    816     SUPREME COURT REPORTS                        [2013) 2 S.C.R.


A                              RI for 1 year and to pay fine of Rs.1000/
                               or in default further RI for 1 month.
                404 IPC
    Balwinder 302 IPC          Life imprisonment and fine of Rs.10,000/-
    Singh                      in default further RI for one year.
B   alias
    Binder
                376(2)(g)IPC Life imprisonment and fine of Rs.10,000/-
                             in default further RI for one year.

c                              RI for 1 year and to pay fine of Rs.1000/
                               or in default further RI for 1 month.
                 404 IPC
    Sunny Lal    302 IPC       Life imprisonment and fine of Rs.10,000/-
    Paswan                     in default further RI for one year.
D
                376(2)(g)IPC Life imprisonment and fine of Rs.10,000/-
                             in default further RI for one year.

                404 IPC        RI for 1 year and to pay fine of Rs.1000/
                               or in default further RI for 1 month.
E
    Tejinder   201 IPC         RI for 7 years and to pay a fine ofRs.5000/
    Singh                      or in default further RI for 6 months
    alias Kaka
          The sentences of imprisonment shall, however, run concurrently
F
       16. It is further submitted by the learned Additional
  Advocate General that the correctness of the findings and
  reasons in the case recorded by the learned sessions judge
  in convicting and sentencing the appellants/accused has been
G examined by the High Court in exercise of its jurisdiction after
  extracting the testimony of the witnesses in the impugned
  judgment and applying its mind in the backdrop of legal grounds
  urged in the appeal before the High Court. The High Court has
  affirmed the conviction and sentence by i'ecording the
  concurrent findings of fact on the charges by assigning valid
H and cogent reasons. Therefore, the same does not call for
  TEJINDER SINGH @ KAKA v. STATE OF PUNJAB                   817
            [V. GOPALA GOWDA, J.]
interference by this' Court in exercise of its jurisdiction under    A
Article 136 of the Constitution of India.

     17. With reference to the above factual and legal
contentions urged on behalf of the parties, this court is required
to examine as to whether the concurrent impugned findings on
                                                                     B
the charges levelled against the appellants in the impugned
judgment are erroneous and require interference by this Court
and whether the conviction and sentence imposed on the
appellants on the basis of the evidence of PW-7, PW-8 and
PW-9 and other prosecution witnesses is legal and valid and          C
requires interference?

    18. The aforesaid points are required to be answered in
favour of the appellants for the following reasons:

     In so far as the appellant Tejinder Singh is concerned, the     0
 charge is under Section 201 IPC.. He has been convicted and
·sentenced with rigorous imprisonment for 7 years and a fine
 of Rs.5000/-or in default, to undergo a further rigorous
 imprisonment for 6 months. This aspect of the matter is
 considered by us in the backdrop of factual and legal
                                                                     E
 contentions urged by learned senior counsel Mr. Tulsi.

     19. It is pertinent to refer to the case of Sukhram (supra)
in order to appreciate the scope of Section 201 IPC. The
relevant paragraphs will be extracted to appreciate his
contentions in the reasoning portion of the judgment.                F

     20. As could be seen from the evidence of PW-8 and PW-
9, there is major discrepancy between their statements of
evidence. PW-8 Chet Ram has stated in his evidence that the
appellant Tejinder Singh started digging a pit with spade in the     G
sugarcane field, whereas PW-9 has stated in his evidence that
the said appeliant was not present at that time. In view of the
major discrepancy and contradiction between the statements
of one witness and the other, it not only creates a grave
suspicion regarding the said appellant being part of the offence     H
    818      SUPREME COURT REPORTS                    [2013) 2 S.C.R.

A but also makes his presence doubtfu·I at the place of
  occurrence. Therefore the ground urged in this regard by the
  learned senior counsel that the learned sessions judge in
  placing reliance upon the testimony of the said witnesses and
  recording the finding against the above appellant on the
B charges and passing an order of conviction and sentence
  which is affirmed by the High Court is without proper
  appreciation of the major discrepancy in the statements of the
  above named witnesses regarding the presence of the
  aforesaid appellant at the place of occurrence. The courts
c below have also failed to take into consideration the evidence
  of PW-10 Krishna, wherein she had deposed in the case that
  on 24.5.2000 at about 8 a.m. she along with Nimmo had gone
  to take fodder from the fields. At about 9.00 a.m. when they
  were coming back, they found that Surl{ly Lal was watering the
D fields. In the meantime, the deceased also entered the fields
  having a jute cloth in her hands. The accused Binder and Kaka
  were seen going towards the tube well. Accused Gurdeep
  Singh and Harnek Singh · were also seen going on the scooter
  towards the tube well side, but she has not named the appellant
  Tejinder Singh. This creates a major discrepancy in the
E statements of evidence of PW-8 and PW-9 regarding the'
  participation of this appellant in committing offence as alleged
  against him.

          21. Moreover, there is nothing substantive and positive
F evidence placed on record against the aforesaid appellant by
  the prosecution to prove its case against him. Therefore, the
  reliance placed in Sukhram's case (supra) regarding legal
  proposition should be applied to the case in hand. It cannot be
  said that the prosecution has proved its case beyond
G reasonable doubt. The benefit of doubt should have been
  extended to Tej inder Singh in the impugned judgment by the
  High Court while re-appreciating the evidence on record in
  exercise of its jurisdiction as it has failed to notice that the ratio
  laid down at para 18 in the case of Sukhram referred to supra
H that to constitute an offence under Section 201 IPC the following
 TEJINDER SINGH @ KAKA v. STATE OF PUNJAB                     819
           [V. GOPALA GOWDA, J.]
four ingredients viz. (i) to (iv) have to be established:             A
    "18 ............. To bring home an offence under Section 201
    IPC, the ingredients to be established are: (i) committal
    of an offence; (ii) person charged with the offence under
    Section 201 must have the knowledge or reason to believe          8
    that an offence has been committed; (iii) person charged
    with the said offence should have caused disappearance
    of evidence; and (iv) the act should have been done with
    the intention of screening the offender from legal
    punishment or with that intention he should have given            C
    information respecting the offence, which he knew or
    believed to be false. It is plain that the intent to screen the
    offender committing an offence must be the primary and
    sole aim of the accused. It hardly needs any emphasis
    that in order to bring home an offence under Section 201
    IPC, a mere suspicion is not sufficient. There must be on         D
    record cogent evidence to prove that the accused knew
    or had information sufficient to lead him to believe that the
    offence had been committed and that· the accused has
    caused the evidence to disappear in order to screen the
    offender, known or unknown.                                       E

    19. In Palvinder Kaur v. State of Punjab this Court had
    said that in order to establish the charge under Section
    201 IPC, it is essential to prove that an offence has been
    committed; that the accused knew or had reason to                 F
    believe that. such offence had been committed; with
    requisite knowledge and with the. intent to screen the
    offender from. legal punishment,. caused the evidence
    thereof to disappear or gave false information respecting
    such offence knowing or having reason to believe the              G
    same to be false. It was observed that the court should
    safeguard itself against the danger of basing its conclusion
    on suspicions, however, strong they may be. (Also see
    Suleman Rahiman Mulani v. State of Maharashtra,
    Nathu v. State of U.P, V.L. Tresa v. State of Kera/a.)"
                                                                      H
    820     SUPREME COURT REPORTS                  [2013) 2 S.C.R.


A       22. For the reasons stated supra we have to record a
  finding in this judgment that there is major discrepancy in the
  testimony of witnesses PW-8 and PW-9 and also registration
  of FIR on the basis of information furnished by the informant.
  The FIR was registered, investigation was made and charge
B sheet was filed and the appellant was tried for the charges as
  he had pleaded not guilty and the Sessions Court convicted and
  sentenced him for the offence. This finding is erroneous in law
  for the reason that the statement of evidence of the prosecution
  witnesses referred to supra has raised serious suspicion and
c doubt. Therefore, the same must be extended to the other
  appellants.

         23. Further, the learned senior counsel has rightly placed
    reliance upon the testimony of PW-7 to whom, according to him,
    the accused persons namely, Gurdeep Singh, Hamek Singh
D   and Sunny Lal Paswan, co-accused, made a disclosure
    statement describing the whole incident to him on 12.06.2000 ·
    who has neither recorded the alleged extra judicial confession
    nor made the disclosure of the said statement within reasonable
    time but 16 days to disclose the extra judicial confessions made
E   by the accused persons to inform to the jurisdictional police.
    The delay in informing the police regarding the extra judicial
    confessional statement alleged to have made to him by some
    of the accused has not been explained by PW-7 and the reason
    sought to be given by him for non disclosure of the same to
F   the police cannot be accepted by this Court as it is not natural
    and also not satisfactory. Further, the learned senior counsel
    Mr. Tulsi has rightly placed reliance upon the judgment of this
    Court in Dwarkadas Gehanma/'s case (supra) with regard to
    the conduct of the witness in the said case which is inconsistent
G   with the conduct of an Qrdinary human being. The observations
    made in the abovementioned case with all fours applicable to
    the facts situations of the case in hand, that if extra judicial
    confessional statement was made by the accused as stated
    by him in his statement before the trial court were to be true, it
H   was his duty to disclose the same immediately to the police or
 TEJINDER SINGH @ KAKA v. STATE OF PUNJAB                    821
           [V. GOPALA GOWDA, J.]
to the relatives of the deceased. That has not been done by         A
him and therefore his evidence is not believable.

     24. The extra judicial confession is a weak form of evidence
and based on such evidence no conviction and sentence can
be imposed upon the appellants and other accused. In support
                                                                    8
of this proposition, the relevant paragraphs of Panr:;ho's case
are extracted hereunder:

    "16. The extra-judicial confession made by A-1, Pratham
    is the main plank of the prosecution case. It is true that an
    extra-judicial confession can be used against its maker,        C
    but as a matter of caution, courts look for corroboration to
    the same from other evidence on record. In Gopa/ Sah v.
    State of Biharthis Court while dealing with an extra-judicial
    confession held that an extra-judicial confession is on the
    face of it, a weak evidence and the courts are reluctant, in    D
    the absence of a chain of cogent circumstances, to rely
    on it for the purpose of recording a conviction. We must,
    therefore, first ascertain whether the extra-judicial
    confession of A-1, Pratham inspires confidence and then
    find out whether there are other cogent circumstances on        E
    record to support it."



    25. This Court further noted that: (Kashmira Singh case,
    AIRp.100,~ra1~                                                  F

           "10. . . . cases may arise where the Judge is not
           prepared to act on the other evidence as it stands
           even though, if believed, it would be sufficient to
           sustain a conviction. In such an event, the Judge        G
           may call in aid the confession and use it to lend
           assurance to the other evidence and thus fortify
           himself in believing what without the aid of the
           confession, he would not be prepared to accept.•
                                                                    H
    822       SUPREME COURT REPORTS                    [2013] 2 S.C.R.


A
          27. This Court in Haricharan case further observed that
          Section 30 merely enables the court to take the confession
          into account. It is not obligatory on the court to take the
          confession into account. This Court reiterated that a
B
          confession cannot be treated as substantive evidence
          against a co-accused. Where the prosecution relies upon
          the confession of one accused against another, the proper
          approach is to consider the other evidence against such
          an accused and if the said evidence appears to be
c         satisfactory and the court is inclined to hold that the said
          evidence may sustain the charge framed against the said
          accused, the court turns to the confession with a view to
          assuring itself that the conclusion which it is inclined to.
          draw from the other evidence is right."
D
        . Further, relevant paragraphs from Sahadevan's case are
    extracted hereunder:
                 "14. It is a settled principle of criminal jurisprudence
                 that extra-judicial confession is a weak piece of
E
                 evidence. Wherever the court, upon due
                 appreciation of the entire prosecution evidence,
                 intends to base a conviction on an extra-judicial
                 confession, it must ensure that the same inspires
                 confidence and is corroborated by other
F                prosecution evidence. If, however, the extra-judicial
                 confession suffers from material discrepancies or
                 inherent improbabilities and does not appear to be
                 cogent as per the prosecution version, it may be
                 difficult for the court to base a conviction on such a
G                confession. In such circumstances, the court would
                 be fully justified in ruling such evidence out of
                 consideration.


H
  TEJINDER SINGH @ KAKA v. STATE OF PUNJAB                    823
            [V. GOPALA GOWDA, J.]
     16. Upon a proper analysis of the above referred judgments       A
     of this Court, it will be appropriate to state the principles
     which would make an extra-judicial confession an
     admissible piece of evidence capable of forming the basis
     of conviction of an accused. These precepts would guide
     the judicial mind while dealing with the veracity of cases       B
     where the prosecution heavily relies upon an extrajudicial
     confession alleged to have been made by the accused:

            (i} The extra-judicial confession is weak evidence
            by itself. It has to be examined by the court with        C
            greater care and caution.

            (ii} It should be made voluntarily. and should be
            truthful.
             (iii} It should inspire confidence.                      D
            (iv} An extra-judicial confession attains greater
            credibility and evidentiary value if it is supported by
            a chain of cogent circumstances and is further
            corroborated by other prosecution evidence.
                                                                      E
             (v} For an extra-judicial confession to be the basis
             of conviction, it should not suffer from any material
             discrepancies and inherent improbabilities.

             (vi} Such statement essentially has to be proved like
                                                                      F
             any other fact and in accordance with law."

      25. Reliance placed upon the decisions of this Cour:t in the
  ca~e of Sahadevan's case (supra} supports the case of the
  appellant herein. Hence, the reliance placed upon the evidence
  of PW-7 by both the Additional sessions judge and the High G
  Court to convict the appellant and sentencing him for the offence
  under Section 201 IPC is erroneous in law for the reason that ·
  they have not appreciated the testimony of PW-7 in the
  backdrop of the legal principles laid down by this Court in the
. above referred cases on the question of extra judicial H
    824     SUPREME COURT REPORTS                [2013] 2 S.C.R.


A confession said to have been made by some of the accused
  to him. Non disclosure of the same either on the same day or
  within reasonable time either to the police or to the family
  members of the deceased does not inspire confidence to be
  accepted as testimony to sustain the conviction and sentence.
B After 16 days he had disclosed it to the jurisdictional police
  which would clearly go to show that the conduct of the said
  witness is unnatural and improbable to believe and his conduct
  is not that of an ordinary human being.

       26. Therefore, the conviction and sentence imposed upon
C the appellant in Crl. A. No.1279 of 2008 by placing reliance on
  the testimony of PW-7 along with testimony of PW-8 and PW-
  9 suffer from major discrepancy and therefore, the appeal in
  so far as Tejinder Singh is concerned must succeed.

D      27. In so far as the other appellants in connected appeals
  are concerned, the sessions court after placing reliance upon
  the evidence of PW-7, PW-8 and PW-9 has recorded the
  findings on charges against them, which is wholly untenable in
  law. Neither the learned additional sessions judge nor the High
E Court has examined their testimony properly by re-appreciating
  the same to record the findings on the charges. The narration
  of the alleged offences against the appellants and other
  accused by the prosecution witnesses is most unnatural and
  unbelievable to convict and sentence them. The courts below
F should have appreciated the evidence on record properly and
  they should not have believed the statement of evidence of PW-
  8 for the reason that neither he has disclosed the alleged
  offences said to have been committed by the appellant and
  other accused nor did he depose before the trial court or: to
G anyone of the villagers. The explanation given by him regarding
  the non disclosure of the alleged offences said to have
  committed by the appellants and other accused that he was
  held out of fear and therefore, he did not disclose the incident
  to anyone of the villagers cannot be accepted as it is
  unnatural. Therefore, the evidence of PW-8 cannot be believed
H
  1
  TEJINDER SINGH @ KAKA v. STATE OF PUNJAB                      825
            [V. GOPALA GOWDA, J.]
 by this Court. The testimonies of PW-8 and PW-9 would clearly          A
 go to show that there is a discrepancy regarding the narration
 of the offences said to have been committed by the accused.
 Therefore, the courts below should not have placed reliance on
 the evidence of PW-8 and PW-9 and recorded the finding that
 the charges levelled against the appellant/accused were                B
 proved. Both the courts below have committed serious error in
 placing reliance upon the untrustworthy testimonies of PW-8
 and PW-9 and passing an order of conviction and sentence
 against them.

       28. Further, the evidence of the other witness namely, PW-
                                                                        c
  10 who deposed that on 24.5.2000 at about 8.00 a.m., she
  along with Nimmo had gone to bring fodder from the fields. At
  about 9.00. a.m. when they were coming back, they found that
  Sunny Lal was watering the fields. In the meanwhile she saw
  deceased Seeso also entered into the fields having jute cloth         D
  in her hands. And after sometime she saw the other accused
  Binder and Kaka going towards the tube well side. Thus, the
  offence alleged to have been committed by the said accused
  also cannot be accepted by us. Further the reliance placed by
. the courts below on the evidence of PW-7, the erstwhile               E
   Sarpanch of the village panchayat regarding the extra judicial
  confession said to have been made to him by some of the
  accused referred to supra should not have been accepted by
  the courts below. In this regard, we have already recorded our
   reasons and findings with reference to the case law of this          F
  Court while considering the case of Tejinder Singh, the
  appellant in Crl.A. No: 1279 of 2008 in the earlier portion of this
  judgment. The same reasons hold good to the case of these
  appellants also. Further, the trial court has committed grave
  error in giving credence to improbable and unnatural evidence         G
  of PW-7 regarding extra judicial confession as he has taken
  16 days to inform the police. The conviction of the appellants/
  accused for the alleged offence on the basis of evidence of the
  above prosecution witnesses is not only erroneous in law but
  also suffers from error in law and therefore, the same is liable      H
                                                            '


    826          SUPREME COURT REPORTS               [2013) 2 S.C.R.


A to be set aside by allowing the connected appeals also.

        29. Further, the post mortem examination conducted by
    Board of Doctors has noticed the following injuries on the dead
    body of Seeso which are relevant for the case:
B          "(a)   Incised wound 14 x 3 cm x 5 cm deep, on the left
                  side of face and neck, horizontally placed on the
                  lateral apsect of face and neck, anterior and was
                  8 cm from mid-line of face and 7 cm below the left
                  eye-brow, clots were present in the vicinity of the
c                 wound. The internal juglar vein and external carotid
                  artery were cut. Retraction of edges of the wound
                  were seen.


D          (h)    There was no external mark of injury, labia, majora
                  and minor were healthy. No blood or discharge,
                  slides 1 and 3 were prepared from the intoritis ..
                  Swabs 5 and 7 were prepared. Per speculum
                  examination showed no mark of injury on the vagina,
E                 cervix was normal and were sent to the Chemical
                  examiner, Patiala for semen analysis."

  The cause of death as per the opinion of the doctors was shock
  and haemorrhage due to injury No. (a) which was on the face
F and neck and was sufficient to cause death in the ordinary
  course of nature.

       30. In our considered view, after going through the
  deposition of the prosecution witnesses from the original record
  of the trial court, we are satisfied that the case of the
G prosecution against the appellants/accused on the charges
  creates suspicion and doubt in the absence of legal evidence
  on record and therefore the same should enure to the benefit
  of accused for their acquittal.

H         31. The courts below have convicted and sentenced the
  TEJINDER SINGH @ KAKA v. STATE OF PUNJAB                      827
            [V. GOPALA GOWDA, J.]
 appellants on the charges framed against them based on the             A
 circumstantial evidence, even though the chain of events are
 not proved by the prosecution to bring home the appellants/
 accused guilt on the charges leveled against them. The
 concurrent finding recorded by the High Court on the charges
·is opposed to the legal principles laid down in this regard by         B
 this Court.

     32. We have examined the entire case in relation to these
appellants and have come to the conclusion that there is no
material evidence on record to convict and sentence the                 C
appellants. For the foregoing reasons, we accept the case of
the appellants in the connected appeals. Accordingly, their
appeals are also allowed and conviction and sentence are set
aside and they are directed to be released forthwith if they are
not required in any other . case.,
                                                                        D
     33. The other accused, viz. Gurdeep Singh who has not
filed appeal before this Court challenging the impugned
judgment and who has also been convicted and sentenced to
undergo imprisonment as awarded and imposed by the learned
Additional Sessions Judge and affirmed by the High Court, we,           E
in exercise of jurisdiction of this Court under Article 142 of the
Constitution, extend the same benefit to him also and he is also
directed to be released forthwith if he is not reciuired in any other
case.

       34. For the foregoing reasons, all the appeals are allowed.      F

    35. The bail bonds of ttie appellant-Tejinder Singh, who is
on bail, are hereby discharged.

R.P.                                            Appeals allowed.