b22

PREM THAKUR

• v.

STATE OF PUNJAB

November 17, 1982

[Y.V. CHANDRACHUD, C.J. AND 0. CHINNAPPA REDDY, J.J

' Evidence-Circumstanlial evidence-How evaluated-Circumstances relied upon as establishing involvement of accused must clinch the issue of guilt.

The prosecution case against the ; lppeUant was that he, along ith five wo.rkers migrated from Nepal and that at the time of occurrence all of them were working in Pujnab as agricultural labourers. Out of a large sum of money eained 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 mllrning be noticed the five dead bodies Or the co-workers were' smouldering ill the pit of his tube well. Post-mortem examination of the dead bodies revealed several ante-mortem injuries, most of which were lacerated wounds. From that day onwards the appellant was found missing.

The trial Court, accepting the circumstantial evidence,· convicted and 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 appeHant absconded thereafter to coraceal his presence. \

Allowing the appeal,

HELD : It is impossible to believe that the crime was committed in the mannr alleged by the prosecution or that the appellant could possibly have cotnmitted it in the circumsances 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 involvement 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 a

rime imputed to him. An a priori suspicion that the accused bas committed

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PREM THAIW!l v. PUNJAB ( Chandrachud, C.J.) . 823

the crime transforms itself into a facile belief that it is he who has committed the crime. Human rD.ind 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 by the appellant.

The fact that the assailant rtlbbcd the victims of the money cannot necessarUy lead to the conclusion that it was. the appellant~ who robbed them of their money. That the appellant and his co-workers were p&id 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 he could not be connected with tho crime. [825 C-E]

Assumina that the deceased were administered liquor, medical evidence did not show that the liquor consumed would have indud such stupor verging upon hypnosis. It is also incredible .that the five persons doiie 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 DFl

The fact that the appellant was last seen in the company of the deceased D 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 DJ

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 Nep 1al going about openly, it is difficult to hold that he had absconded to Nepal. (825 G-H]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 187 . of 1982.

Appeal by special leave from the . jndgment and order dated 7.10.81 of tile Punjab and Haryana High Court in Criminal No.

466-DB/81.

N.K. 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 co11victed by the learned Sessions Judge, Rupnaar, Ul!der section~

A 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 '> '-

G ..

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 workers and a few others. They worked with one Mobinder Singh for about 14 days for which they were paid a sum of Rs. 2;900. The appellant and his coworkers spent a sum of Rs. 800 therefrom and the balance of Rs. 2!00 was kept with Rama Nand who was one of the five coworkers of the appellant.

The appellant and his companions thre; after 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 be saw five dead bodies smouldering. Ujjagar Singh lodged . informatio'l of tlie offence with A.SJ. 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 l, 1980, the appellant was arrested while be 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 leveiled against him, the prosecution relied upon circumstantial evidence which consisted of : (i) motive for the offence ; (ii) the fact that !he 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 Sin!lh ; and (vii) a

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PREM THAKUR v. PUNJAB (Chandrchud. C.J.) 825

false statementmade 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 ome of these circumstances as proved and convicted the appellant f-Or the five murders on the basis of those circumstances. The High Coµrt has relied , I upon three circumstances, namely, (i) mo.live, (ii) the fact. that the appellant was seen last in the company of the deceased and (iii) the conduct Of th~ appeliant after th~ 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 bow' 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 n.ecessarily lead to the conclusion that it is ihe appellant who robbed the deceased of their money. The fact that a fairly large sum w.as paid to the appellant and his co-workers by way of their wages 1 would be known to others apart from the appellant and bis companion's.

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 crim!l was theft.

The circumstances that the appellant was last seen in the company of the deceased can be accepted as proved but no inference

an arise therefrom that the appellant had committed their murder.

The appellant was working with the deceased and others and there was nothing unnatural in the appe)lant being in the company of bis 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 io rely upon that circumstance as leading. to the conclusion that be bad made himself scarce in order to conceal his presence. The story of the prosecution that he was arrested in Punjab itself has been disbelieved by the High Court according to ivbich, 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. bad absconded to Nepal. .

F .....

The circumstance that the appellant told Ram Ishar that the latter's father Rama Nand would return to the village after l'uran

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 o( 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 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 iruagine .. 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 wo.uld 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 prosecuiion.

The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence the 'circnmstances must be of such a nature as tq be capable of suport

ing 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 liim.

An a priori suspicion that the

11cusc\I h~~ ~O!l11!1itted the rim~ trl!l!sfQrms itself into a facile belief

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PREM THAKUR v. PUNJAB (Chandrachud, C.J.) 827

'that it is be who bas committed the crime. Human mind plays that trick on proof of the . com.mission of a crime by resisting the frustrating feeling that no one can be identified as the author of that crime~ In the case before us, there is DO 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 Jbe 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 shado~ 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 circustances on which it is hazardous to base the conviction.

Iri the resuit we allow the appeal, set aside the conviction of the appellant OD all the COUn.ts and the sentences imposed upon him including the sentence of death and acquit him of all the charges.

He shall be released forthwith. . ·

~.B.R.

Appeal allowed.