Sunil Rai @ Paua & Ors vs Union Territory, Chandigarh

2. The three appellants are serving life sentences for committing murder of one Dile Ram. They were never on bail and have, thus, completed over ten years of incarceration. We, therefore, intended to grant leave in the case and release the appellants on bail. But, the counsel for the respondent stated that once released on bail it will be almost impossible to get hold of the appellants. We, accordingly, proceeded to hear the case on merits at the stage of special leave itself and at the conclusion of hearing we are dismayed 2 to find that the appellants were convicted and sentenced on completely insufficient evidence.

3. The appellants are migrant workers who came to Chandigarh from different parts of the country in search of livelihood and were trying to eke out a living by working as rickshaw pullers. Appellant no.1, Sunil Rai alias Paua (accused no.1) had his money and clothes stolen by someone breaking open the lock of the box under the passenger seat of the rickshaw and the quarrel that took place, as a result of it, is said to be at the root of the alleged offence.

4. According to the prosecution case, on March 29, 2001 at about 8:30 p.m. Arun Kumar (PW-14), Shailendra Kumar Pandey (PW-9) and one Jaspreet Singh alias Chikna were present near the GPO, Sector 17, Chandigarh. Appellant no.2, Sher Bahadur alias Sheru (accused no.2) was also present there. At that time Sunil Rai and appellant no.3, Ram Lal (accused no.3) came there. Sunil Rai was agitated as his money and clothes were stolen. He accused Sher Bahadur of committing the theft and an altercation took place between them. Sher Bahadur told Sunil Rai that he had not stolen his money or the other articles and it might have been the work of Dile Ram. He also told Sunil Rai that he would make Dile Ram return his money and clothes. It was at this stage that Dile Ram also arrived 3 at the scene coming from the side of Jagat Cinema. Sunil Rai caught hold of Dile Ram by his neck and asked him to return his money and clothes otherwise he would kill him. A scuffle took place between Sunil Rai and Dile Ram but the latter got himself freed and ran away from there. The three accused went after him yelling and shouting that they would not spare him. 12 hours later, at about 8:30 in the morning of March 30, 2001, an unidentified person was found lying in a badly injured condition at a spot near the local bus stand on the rear side of Neelam Cinema, situate at the sector 17 market. There were injuries on his head and face. At the spot where he lay there was a pouch of liquor (Ex. P32), a piece of brick (Ex. P1), a piece of stone (Ex. P2) and another piece of hard concrete. The blood flowing from the injuries had stained the earth at the spot, a sample of which was collected and produced in court as Ex. P3.

5. The injured was sent to hospital where he died. He was later identified as Dile Ram who, according to the prosecution, was last seen the previous evening, fleeing away with the appellants in pursuit yelling and shouting threats at him.

10. On the issue of last seen, the prosecution examined Shailendra Kumar Pandey as PW-9, Arun Kumar as PW-14 and Harish Kumar Bansal as PW- 6

18. After his cross examination, the prosecution declared him `hostile' and filed a petition seeking permission to cross examine him. The court allowed the petition by order dated July 11, 2003 and granted permission to 9 the prosecution to cross examine PW-14, whereupon his cross examination by the prosecution took place on September 18, 2003. In this round he again went back to his earlier statement and stated as follows:

32. On the materials on record, there may be some suspicion against the accused but as is often said suspicion, howsoever, strong cannot take the place of proof. We, therefore, find and hold that the conviction of the appellants is based on completely insufficient evidence and is wholly unsustainable.

37. It is, thus, clear that the extra judicial confession of Sunil Rai could not be fastened upon the other two appellants for holding them guilty of murder and the High Court was quite wrong in using the confessional statement of Sunil Rai as a circumstance against the other two appellants.

38. Recovery of the bloodstained jacket of Sunil Rai, the third circumstance obviously does not relate to appellant nos.2 and 3 in any 18 manner. Equally, the theft of the money and clothes of Sunil Rai would be no motive for the other two accused to assault Dile Ram, much less to kill him.

39. Thus, seen for any angle the conviction of the appellants cannot be sustained. The judgments and orders of the High Court and the trial court are completely unsustainable. The two judgments are set aside. The appellants are acquitted of the charges and are directed to be released forthwith unless required in connection with any other case.

40. In the result the appeals are allowed.

.........................................J (AFTAB ALAM) .........................................J (R.M. LODHA) New Delhi, July 4, 2011.