Swaran Singh @ Gora vs State Of Punjab
2023 Latest Caselaw 9571 P&H

                                                      Neutral Citation No:=2023:PHHC:085780-DB




                                                  2023:PHHC:085780-DB
CRA-D-474-DB-2018 (O&M)                                                   -1-

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

                        CRA-D-474-DB-2018 (O&M)
                        Date of decision : July 07, 2023


SWARAN SINGH @ GORA                                ....APPELLANT
                        VERSUS

STATE OF PUNJAB                                    ....RESPONDENT



CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MR. JUSTICE KULDEEP TIWARI


Present :   Mr. Abhaysher Singh, Advocate, for the
            appellant (Legal Aid Counsel)

            Mr. Maninder Singh, Deputy Advocate General, Punjab


KULDEEP TIWARI,J.

1. The present appeal has been directed at the instance of

appellant-accused against the verdict of conviction and order of

sentence dated 10.11.2017, rendered by the learned Sessions

Judge, Bathinda, in case FIR No. 204 dated 5.9.2016, registered

under Section 302 of the Indian Penal Code, at Police Station

Nathana, District Bathinda, whereby he has been convicted for the

offence punishable under Section 302 of IPC, and, has been ordered

to undergo sentence of imprisonment for life and to pay a fine of Rs

10,000/- and in default of payment of fine, to further undergo rigorous

imprisonment for a period of two years.

FACTUAL MATRIX

2. The prosecution agency was set into motion upon the

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receipt of information from one Gurtej Singh son of Hakam Singh

(PW1). On 5.9.2016, ASI Karamjit Singh (PW11) along with other

police officials was present at Railway Crossing, Bhucho Mandi, in

connection with patrolling and checking of suspicious persons.

There, complainant Gurtej Singh along with one Makhan Singh met

them and got recorded his statement. The statement is read as

under:-

"Stated that I am the resident of above said address and do the work of agriculture. Today I and my farm labour namely Jagga Singh son of Pritam Singh, SC resident of Chak Fateh Singh Wala went to our field Hazuri wala for roaming which is adjoining to minor canal coming from Rampura to Kotfatta where paddy is growing. It was the time of about 10:30 hours morning. When I and my farm labour Jagga Singh went towards path of minor canal in front of our paddy field then one dead body smeared with blood of unknown young person was lying as mouth downwards on path of minor canal in front of our field. Many injuries were in his head and head was as crushed. Age of unknown young person is between about 20 to 25 years, height is 5 feet, blue colour jean trouser and red colour T shirt are worn by him. Any unknown persons have thrown away the dead body after inflicting injuries in his head and committing the murder of this unknown young man. In this regard, I have informed Makhan Singh Panch of our village. I, after leaving Jagga Singh farm worker near dead body of unknown person and taking along Makhan Singh Panch was coming to police station for giving the report. You have met. I have got recorded my statement with you. Heard and same is correct. Appropriate action be taken."

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3. On the basis of above statement Ex. P/1, the formal FIR

Ex. P11 was registered.

POLICE INVESTIGATIONS

4. After recording the formal FIR, ASI Karamjit Singh visited

the spot, from where, he lifted the blood stained earth and simple

earth along with blood stained torn parna and these were converted

into separate parcels and all parcels were sealed with the seal

impression 'KS'. Sample seal was separately prepared and was

handed over to HC Rajiv Kumar. Rough site plan of the place of

occurrence (Ex. P/12) was prepared. The inquest proceedings Ex.

PW6/G were also carried out. Thereafter, he made an application

Ex. PW6/A to the Chief Medical Officer for conducting the post

mortem of the unknown dead body. After conducting the post

mortem, the dead body was kept in mortuary for identification.

Thereafter, one Raj Kaur wife of Lakha Singh and her brother Bogha

Singh came there and both identified the dead body to be that of son

of Raj Kaur namely Gurtej Singh alias Kala. Statements of Raj Kaur

and Bhoga Singh, Ex. P/15 and Ex. P/16 were recorded under

Section 161 Cr.P.C. In her statement, Raj Kaur has stated that on

4.9.2016, her son Gurtej Singh alias Kala went from their home at

Bhuchu Mandi on Scooty for some domestic work. When her son

did not come back, she informed her brother Bogha Singh. On

6.9.2016, when they were going to lodge a police complaint, they

came to know from the police officials that on 5.9.2016, a dead body

of one unknown young man has been recovered from the path of

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minor canal in the area of Chak Fateh Singh Wala and was presently

lying in Mortuary of Civil Hospital, Bathinda, after conducting its post

mortem. She along with her brother Bogha Singh saw the dead body

and identified it to be of her son Gurtej Singh. On checking the dead

body, it was clearly visible that her son was murdered by inflicting

injuries on his head.

5. On 8.9.2016, Swaran Singh @ Gora appellant-accused

was arrested. On the identification of Swaran Singh son of Jarnail

Singh (PW4), personal search of Swaran Singh appellant-accused

(Ex. P/4), was carried out. Thereafter, he was joined in the

investigations and he suffered two different disclosure statements, in

the police custody and in pursuance of his disclosure statements, he

got recovered one kapa, one Scooty black colour Maestro, his own

clothes worn on the date of occurrence i.e. one kurta pyjama and half

torn parna having light blood stains. He also got recovered

photograph of the deceased which was taken from his pocket after

his murder and number plate of Scooty along with RC from the field

Tibba Kheta. On completion of investigation and after recording the

statement of the relevant witnesses, the final challan under Section

173 Cr.P.C. was presented before the learned Illaqa Magistrate. The

learned Illaqa Magistrate, finding the case to be exclusively triable by

the Court of Sessions, committed the case, vide order dated

3.12.2016, to the Court of Sessions, Bathinda.

COURT PROCEEDINGS

6. The learned Sessions Judge, finding prima facie case

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against the appellant-accused charge sheeted him under Section

302 IPC. The prosecution, in order to substantiate the charges

framed against the appellant-accused, examined as many as 12

witnesses and also placed on record documentary evidence and FSL

report. The appellant-accused did not led any evidence in his

defence, despite an opportunity was granted to him. The learned

trial court concluded that all the circumstantial evidence proved by

the prosecution established that the appellant-accused committed

murder of the deceased Gurtej Singh son of Lakha Singh and held

him guilty under Section 302 IPC and sentenced him, as mentioned

above. Having aggrieved with the judgment of conviction and

sentence, the present statutory appeal has been preferred by the

appellant-accused.

SUBMISSIONS BY COUNSEL FOR THE PARTIES

7. Learned counsel for the appellant-accused vehemently

argued that the learned trial court has not appreciated that the

prosecution has miserably failed to prove all the material

circumstantial links on the chain of evidence. He has also further

submitted that in case of circumstantial evidence, motive is also an

important ingredient. However, excepting the bald statement of

PW5 Raj Kaur, (mother of the deceased), Gurpreet Singh PW2, the

interested witness, (one of the relatives of the deceased), there is

nothing on record to establish that a previous altercation took place

between the deceased and the appellant-accused and because of

that he nursed a grudge against the deceased and committed the

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murder. He further submitted that to prove the extra judicial

confession, the prosecution cited two witnesses, however, none of

the witnesses are related to the appellant-accused. Therefore, there

was no occasion for him to go to a stranger and to confess his guilt

before them. In fact, these witnesses are later on introduced by the

prosecution to complete the chain of circumstances, therefore, their

testimonies could not have been relied upon by the learned trial

court. However, the learned trial court has given unnecessary

weightage to the testimonies of these witnesses. Further, recovery,

which has been effected from the present appellant-accused, is also

a planted recovery, as the prosecution has failed to establish the

articles which became recovered from the appellant, in pursuance to

his disclosure statements.

8. Per contra, the learned State counsel vociferously argued

that though this case is based on circumstantial evidence, however,

each and every link in the chain of circumstances, is pointing out

the guilt of the present accused and also stands established by the

prosecution. Therefore, the learned trial court has rightly convicted

the appellant-accused. He further submitted that the occurrence took

place in the intervening night of 4/5 September, 2016. The accused

was arrested on 8.9.2016 immediately after the occurrence and

during investigation, upon his disclosure statement, he got recovered

the weapon of offence, the clothes which were worn by the appellant

on the date of occurrence and as per the FSL report, blood stains

were present on those clothes. Not only that, he also got recovered

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the Scooty belonging to the deceased which he took away after

committing the murder. Even the extra judicial confessions get

corroboration from the medical evidence. Therefore, it is a case

where no intervention is required. Further, there is no infirmity or

perversity in the verdict of conviction and order of sentence recorded

by the learned trial Court, and, while concluding his arguments, he

prayed for dismissal of the appeal.

9. Since, this case is based on circumstantial evidence,

therefore, we, deem it apt to first examine all the pieces of

circumstantial evidence(s), as became adduced by the prosecution,

thus, to establish the guilt of the appellant-accused.

MEDICAL EVIDENCE

10. On 5.9.2016, on an application made by ASI Karamjit

Singh, PW11, before Senior Medical Officer, Civil Hospital, Bathinda,

Board of Doctors, consisting of Dr. Inderpreet Singh (PW6), Dr. V.

Chawla and Dr. Priyanka, conducted the post mortem examination of

the dead body of unknown male of 20-25 years. Upon examination,

the Board found the following injuries:-

1. Incised wound 50 cm X 15 cm starting from right upper part of face 6 cm away from right ear going across the forehead ending at a point on left side of neck 8 cm below left ear underneath skull fracture in region of right temporal, right frontal, right parietal, left frontal, left temporal, left orbital, left maxilla and right maxilla. Brain tissues were divided at multiple sites. Cranial cavity was full of blood. Brain tissues were outside.

2. Incised would 6 cm X 2 cm on the left side of neck

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just below end point of injury No. 1 on dissection underlying vessels of the neck were cut.

3. Incised wound 7 cm X 2 cm left thigh 6 cm above knee joint."

11. According to the post mortem report, the cause of death

was haemorrhage and shock, due to the injuries sustained. The

injuries were declared as ante mortem in nature and sufficient to

cause death in an ordinary course of nature. All the injuries were

incised wounds on head, neck and knee joint. The accused during

investigation suffered the disclosure statement. As per disclosure

statement, the accused committed the murder of deceased Gurtej

Singh with the kapa and he got the same recovered in pursuance of

his disclosure statement Ex. P5 from the room built in his house.

The weapon of offence which has been recovered from the appellant-

accused could cause all the injuries suffered by the deceased.

RECOVERIES

12. The appellant-accused was arrested on 8.9.2016. During

the investigation, he suffered a disclosure statement under Section

27 of the Indian Evidence Act. The relevant extract is read as under:-

"In the presence of under mentioned witnesses, accused Swaran Singh @ Gora above said, under the supervision of HC Kashmir Singh 701, HC Sulakhan Singh 1578 has disclosed to me (I/ASI) that "Kapa with which murder of Gurtej Singh @ Kala was committed on intermediate night of 4/5.9.16 and I took away his black colour scooter after committing his murder and 'clothes shirt, pajama worn at that time by me and his white colour torn half small turban and after putting these clothes duly washed in the envelope of polythene

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paper have been kept in boot of scooter. I have parked that scooter as concealed by covering with plastic bags sheets and bed sheets in a room in my house at village Chak Ram Singh Wala and after washing iron Kapa used during commission of murder with water, it has been kept below scooter by covering with rubbish. I exclusively know about scooter and iron Kapa and my washed clothes. After getting demarcation, I can get the same recovered. Memo of disclosure statement of scooter, kapa and washed clothes has been prepared."

13. In pursuance of his disclosure statement, the accused got

recovered Scooty, kapa and washed clothes that included one kurta

pyjama, white colour torn half small turban from a room built in his

house. He made another disclosure statement on 9.9.2016 and

disclosed that he took away the Scooty along with the photo of

deceased, taken out from his pocket and also removed the number

plate of Scooty. He kept RC of Scooty by putting it in an envelope as

concealed in mound fields of Tungwali. Later on, in pursuance of

disclosure statement Ex. P/8, he got recovered one passport size

photo of Gurtej Singh deceased, RC of Scooty which is in the name

of one Gurpreet Singh son of Naib Singh (PW2) and white coloured

Scooty number plate on which PB03-AM-6708 was written in black

words.

FORENSIC SCIENCE LABORATORY REPORT

14. The recovered articles from accused i.e. kurta pyjama

and parna were sent for forensic science examination. The

serological examination revealed that kurta and pyjama were stained

with human blood. However, result regarding blood group was

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inconclusive. The FSL report was duly proved as Ex. P/22 by the

prosecution. The relevant extract of the FSL report is read as under:-

           "xxx          xxx           xxx            xxx
           Parcel 'A' contained:       Soil alleged to be stained with blood
           Parcel 'B' contained:       Sandy soil alleged to be simple soil
           Parcel 'C' contained:       Parna alleged to be stained with
                                       blood
           Parcel 'D' contained:       The following exhibits alleged to be
                                       stained with blood:
                                       (i) Jean Pant marked as D-1 in the
                                       laboratory.
                                       (ii) T-Shirt marked as D-2 in the
                                       laboratory.
           Parcel 'E' contained:       The following exhibits alleged to be
                                       stained with blood:
                                       (i) Kurta marked as E-1 in the
                                       laboratory.
                                       (ii) Pajama marked as E-2 in the
                                       laboratory.
                                       (iii) Parna marked as E-3 in the
                                       laboratory.
                         RESULT OF EXAMINATION

(i) The exhibits contained in parcels 'A', 'C' and 'D' are stained with human blood.

(ii) The blood could not be detected on the exhibit contained in parcel 'B' and the exhibit E-3 contained in parcel 'E'.

(iii) The result regarding the blood group is inclusive."

LAST SEEN EVIDENCE

15. The prosecution has examined Gurpreet Singh son of

Naib Singh as PW2. According to this witness, he has one Maestro

Scooty bearing number PB03-AM-6708. The said Scooty was taken

by deceased for his domestic use on 3.9.2016 at 3.00 PM. Both

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deceased and accused were having visiting terms with him as both

were close friends. He stated that on 4.9.2023, when he went to

Bathinda, for his own domestic work, he saw Gurtej Singh deceased

and Swaran Singh accused on his Scooty at Bathinda and both of

them were in drunken condition. He was put to cross-examination.

However, nothing could elicit to doubt the creditability of this witness.

Further, the prosecution also examined PW4 Swaran Singh son of

Jarnail Singh, who is one of the relatives of wife of deceased Gurtej

Singh. In his examination-in-chief, he deposed that he saw Swaran

Singh accused on the Scooty which belongs to the deceased Gurtej

Singh and he kept the Scooty with him. Interestingly, the defence

neither cross-examined this witness nor put any suggestion in this

regard. Therefore, the statement of PW4 Swaran Singh in this

regard remains unrebutted. There is no suggestion or any evidence

contrary on record to prove that these two witnesses have any ill-will

or enmity with the appellant accused. In such situation, onus shifts

to the accused to establish that what has happened since he parted

with the company of the deceased, once they were last seen, by the

witnesses.

MOTIVE

16. In order to establish the motive, the prosecution examined

PW2 Gurpreet Singh, who stated that accused Swaran Singh and

deceased Gurtej Singh were friends. About two months earlier to the

present occurrence, Gurtej Singh gave beating to Swaran Singh and

the matter was pacified between them and after that they were in

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speaking terms with each other. Secondly, the prosecution examined

Bhola Singh PW3 who is an independent witness and his wife is

Sarpanch of village Dhan Singh Khana. He is a witness to the extra

judicial confession made by the accused wherein, he deposed that

he committed the murder of Gurtej Singh as he kept grudge in his

mind regarding beatings given to him by deceased Gurtej Singh.

Further, the mother of the deceased namely Raj Kaur was examined

as PW5. In examination-in-chief, she has stated that she has full

belief that her son has been murdered due to previous grudge that

two months prior to the occurrence, accused Swaran Singh was

beaten by her deceased son and at that time, the matter was

compromised and accused Swaran Singh kept grudge in his mind

and due to which the accused took her deceased son on his Scooty

and committed his murder. All these witnesses were subjected to

cross-examination. However, the defence remained unsuccessful to

breach their creditability. Therefore, we can safely conclude that the

prosecution has proved the motive.

EXTRA JUDICIAL CONFESSIONS

17. As per prosecution, the appellant-accused made extra

judicial confession before one Gurpreet Singh, PW2 and one Bhola

Singh, PW3. As per statement of Gurpreet Singh, PW2, he knows

both, the accused and the deceased prior to the occurrence. About

two months earlier to the present occurrence, Gurtej Singh gave

beatings to Swaran Singh appellant-accused and thereafter, the

matter was pacified between them and after that both of them were in

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speaking terms with each other. He is also the witness of last seen

occurrence. He further stated in his examination-in-chief, that on

6.9.2016, at about 6 PM, the appellant-accused visited his house in a

perplexed condition and he admitted that he committed the murder of

deceased due to his previous grudge, by causing injuries to him with

kapa on his head, he has committed a blunder mistake and asked

him to sort out the matter with the family of the deceased. He was

put to cross-examination. During cross-examination, he changed his

version and stated that the accused came to his village on 5.9.2016.

He admitted that he did not meet the accused on 6.9.2016. Rather

he specifically stated that on 6.9.2016, he had no talk with accused

Swaran Singh nor he met him on that day. Further-more, the

present accused is a relative of deceased Gurtej Singh, therefore,

there was no reason for the accused person to approach the relative

of the deceased, to suffer extra judicial confession. Had the accused

made extra judicial confession on 6.9.2016, as stated by this witness,

in his examination-in-chief or on 5.9.2016, as stated in cross-

examination, there was no reason for him to wait and not inform the

police immediately. Rather his statement was recorded on 7.9.2016.

The delay in recording his statement, to our opinion, is fatal and

thus, the same cannot be relied upon. The next witness who was

examined by the prosecution is PW3 Bhola Singh. As per this

witness, Swaran Singh accused-appellant along with his brother-in-

law Roop Singh visited his house and narrated the entire incident.

He further stated that the accused admitted that he has committed a

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blunder mistake and he requested to pacify the matter with the family

of the deceased. This witness, in fact, belongs to village Dhan Singh

Khana and his wife is Sarpanch of that village. During cross-

examination, he admitted that there is another Sarpanch, Panches

and Numbardars of village Burj Kahan Singh Wala and Chak Ram

Singh Wala. He also admitted that he has no personal knowledge

about the present dispute. This witness is totally stranger to the

appellant-accused and belongs to a different village and thus, does

not inspire confidence of this Court. There is no reason whatsoever

coming forth for making extra judicial confession to a stranger by the

accused. Even otherwise, as per this witness, the accused had

visited his house along with his brother-in-law Roop Singh. However,

neither the prosecution joined Roop Singh as a witness during

investigation nor any efforts were made to examine Roop Singh

during trial. In absence of any prior relation between the accused and

this witness and in absence of examination of other material witness

namely Roop Singh, the statement of this witness is totally

uncredible, therefore, no reliance can be placed upon this witness.

SCENE OF CRIME

18. In order to prove the place of occurrence, the prosecution

examined the complainant as PW1 who is an independent witness

and first saw the dead body lying towards the path of minor canal in

front of paddy field of complainant Gurtej Singh. Secondly, PW11,

the initial Investigating Officer, ASI Karamjit Singh, who conducted

the initial investigations and after recording the FIR, reached the spot

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of crime and collected soil stained with blood and simple soil and

same was taken into possession vide recovery memo Ex. P2. The

soil which was smeared with blood was sent for forensic examination

and as per Forensic Science examination, the human blood was

found in the soil. Not only that the place of occurrence was also

identified by the appellant-accused himself, in pursuance to his

disclosure statement. No contrary evidence or during cross-

examination of witnesses, any dent was caused to impeach the

creditability of the witnesses, therefore, we can safely conclude that

the prosecution has proved the scene of occurrence.

ANALYSIS

19. The present case is based upon circumstantial evidence,

therefore, we have to examine all the links in the chain of

circumstances, which have been strived to be proved by the

prosecution, to conclusively bring home the guilt of the

appellant/accused. The Supreme Court, in its judgment passed in

Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4

SCC 116, has laid down five cardinal principles, which are essential

for recording a finding of conviction, in a case based upon

circumstantial evidence, principles whereof are extracted hereunder:-

"153. xxx xxx xxx (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. xxx xxx xxx (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a

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conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

On the touchstone of above settled legal proposition, let

us examine all the circumstantial evidences, as led by the

prosecution.

20. As discussed above, there are different pieces of

circumstantial evidence which became strived to be proven by the

prosecution. First is the recoveries, which were effected from the

accused person, in pursuance to his disclosure statements. He got

recovered one Scooty which belongs to the Gurpreet Singh PW2.

For that matter, the prosecution has examined Gurpreet Singh PW2

and he categorically stated that he handed over his Scooty, on

3.9.2016, to the deceased for domestic use. He also proved

registration certificate which shows that the Scooty belongs to him.

This witness also saw the accused and deceased together travelling

on the Scooty, on the date of occurrence. According to him, both

were seen on Scooty at Bathinda and both of them were in a

drunken condition. The recovery of Scooty which belongs to

Gurpreet Singh PW2, in pursuance of disclosure statement, is one

of the most important link in the chain of circumstantial evidence.

Further, the recovery of weapon of offence i.e. kapa, also connects

the appellant-accused with the commission of crime, as all the

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injuries suffered by the deceased, were incised wounds, which could

have been caused by this weapon of offence, which has been

recovered from the appellant-accused. Secondly, the recovery of

clothes, belonging to the appellant-accused having blood stains,

which is corroborated by the serological report by the Forensic

Science Expert, further establishes the link in the chain of

circumstances. The accused also got recovered the RC and the

number plate of Scooty which he has removed from the Scooty in

order to hide his crime.

21. Now it is apt to evaluate the evidentiary value of

disclosure statements, as made by the appellant-accused and the

recoveries effected pursuant thereto. Normally, presumption of falsity

is attached to the confession made under circumstances, as provided

in Sections 24 and 25 of the Indian Evidence Act (hereinafter referred

to as 'Act'). Sections 24 and 25 of the Act prescribe the

circumstances, which make a confession inadmissible. However,

exception to these provisions is prescribed in Section 26 of the Act,

according to which, a confession made by any person whilst being in

custody of a Police Officer can be proved against such person, if

such confession is made in the immediate presence of a Magistrate.

Section 27 of the Act appears to be a proviso to Sections, 24, 25 and

26 of the Act and makes admissible so much part of the statement of

accused made whilst being in police custody, which leads to

discovery of facts, as deposed by him, and, link the same with the

crime. For ready reference, Sections 25, 26, and, 27 of the Act, are

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reproduced as under:-

"25. Confession to police-officer not to be proved.

-- No confession made to a police-officer, shall be proved as against a person accused of any offence.

26. Confession by accused while in custody of police not to be proved against him. -- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

27. How much of information received from accused may be proved. -- Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

A conjoint reading of all these three Sections clearly

depicts that a confession made before a police officer, which is

otherwise inadmissible, however, becomes admissible in evidence

when the information given by accused to the Investigation Officer

concerned does lead to discovery of a fact. Moreover, yet only that

portion of information can be proved, which relates, distinctively or

strictly, to the facts discovered. Rest of the statement would be

treated as confession made before police, consequently, hit by

provision of Section 25 of the Act.

22. On the touchstone of above discussed legal provisions,

we find that the disclosure statements made by appellant-accused

and the recoveries thereof which are established beyond reasonable

doubt by the prosecution, fully prove the guilt of the appellant-

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accused. Further, the last seen evidence also proves the guilt of the

present appellant-accused. As already discussed above, two

witnesses PW2 Gurpreet Singh and PW4 Swaran Singh saw the

appellant-accused and deceased together, in the evening of

4.9.2016 and on the next day, dead body of deceased, was found by

PW1 Gurtej Singh. As per post mortem report, the death of the

deceased has been caused between the intervening night of 4/5

September, 2016 and therefore, the onus shifts on the accused and

no explanation was offered by the accused, to the extent, that what

has happened in between the point of time when accused and

deceased were last seen together and when the victim was found

dead, rather the accused simply denied all the allegations in his

statement under Section 313 Cr.P.C.. We are well aware of the legal

preposition that mere invocation of last seen theory, without there

being any other corroborative evidence establish all requisite link in

the chain of circumstances would not ipso facto shift the burden on

the accused, but here in this case, as already discussed above, the

prosecution has been able to establish the other corroborative

evidence and all requisite links in the chain of circumstances.

Therefore, the last seen theory is also relevant in the present case

which is established by PW2 and PW4 and therefore, the onus shifts

upon the accused to offer explanation as to what had happened in

the intervening night of 4/5 September, 2016. We have no hesitation

to conclude that the appellant-accused failed to give any explanation

in order to discharge his burden though he is not required to prove

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the explanation beyond reasonable doubt. However, it is a case of

no explanation.

23. The motive is also established by the prosecution.

According to the star witnesses, previously the deceased gave

beating to the appellant-accused because of which he kept grudge in

his mind and in consequence, committed the murder of the

deceased.

24. In view of the above discussions and reasons, we have

no hesitation to hold that the prosecution has proved the charges

against the appellant-accused beyond reasonable doubt and

therefore, we do not find any merit in the present appeal and

consequently, the same is dismissed.

25. The appellant/accused, if not in custody, shall forthwith be

taken into custody to honour rest of the sentence(s) imposed.

26. The case property, if any, be dealt with in accordance with

law after expiry of the period of limitation for filing an appeal. The

record be forthwith sent down.

(SURESHWAR THAKUR)                                   (KULDEEP TIWARI)
      JUDGE                                               JUDGE

July 07, 2023
      'dalbir'


                 Whether speaking/reasoned ?            Yes/No
                 Whether Reportable ?                   Yes/No

Neutral Citation No:=2023:PHHC:085780-DB

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