Full Judgment Text
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CASE NO.:
Appeal (crl.) 1 of 1994
PETITIONER:
SUKHVINDER SINGH AND ORS.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT: 12/05/1994
BENCH:
A.S. ANAND & FAIZAN UDDIN
JUDGMENT:
JUDGMENT
1994(3) SCR 1061
The Judgment of the Court was delivered by
DR. ANAND, J. This appeal under Section 19 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter TADA’) is directed against
the judgment and order of the Designated Court. Kapur-thala, whereby the
appellants have been convicted for offences under Section 302 read with
Section 149/120B IPC and Section 3 of TADA and sentenced under Section
302/149 IPC to suffer imprisonment for life and to pay a fine of Rs. 5000
each and in default to undergo further rigorous imprisonment for 4 years;
under Section 120B to undergo rigorous imprisonment for life and to pay a
fine of Rs. 1000 each and in default of payment of fine to undergo further
imprisonment for one year and under Section 3 of TADA to undergo rigorous
imprisonment for life and to pay fine of Rs. 4000 each and in default of
payment of fine to undergo further rigorous imprisonment for 3 years each.
All the substantive sentences were, however, directed run concurrently.
The prosecution case is as follows :
Rakesh Kumar PW2 father of deceased Varun Kumar, made a statement to the
police on 16th of May, 1992 to the effect that on 12th of May, 1992 his
wife and son had gone to Phagwara earlier in the day and on their return
met him at his shop in the evening at about 6.15 p.m. His son went away to
play while his wife went to the house to prepare meals. She shortly
returned to the shop of Rakesh, Kumar PW2 bringing alongwith her a letter
which she had picked from her house. In that letter, which was a ransom
note written in Hindi, it was stated that Varun Kumar Mittal was in the
custody of the persons writing the letter and that in case Rakesh Kumar
wanted to see him alive, he should bring Rs. 60,000 on Thursday, exactly at
10.00 a.m. at Jalandhar Road ahead of Convent School and that he should
come all alone and that in case" of any mischief, his son and his wife
would be lost to him for ever. The ransom letter also stated thereafter the
receipt of money, Varun Kumar. would reach either the house or the shop
within half an hour and that in case he tried to inform the police he
should understand the consequences. PW2 was advised through the letter to
keep the matter confined between himself and his wife and not to let
anybody else known about it, Rakesh Kumar PW2 acted accordingly and on 14th
of May, 1992, around 10.00 a.m., went to the specified place alongwith the
mosey but no one came to the spot He then conducted search for his son but
could not trace him at all and on 16th of May, 1992 he lodged a complaint
before the police, stating therein that some unknown persons had abducted
his son with intent to get some ransom and that the abductors had
threatened to kill his son. A case on the basis of the complaint, FIR
Ex.PB/1 was registered at police station Nakodar for offences under Section
354/149 IPC. The ransom letter Ex,PA was produced by the complainant before
the police who took it into possession vide recovery memo Ex,PD,
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Subsequently, another letter Ex.PC was also received at the house of PW2
and was handed over to the police. SI Amar Singh took upon the
investigation and prepared a rough site plan of the spot, Ex-PWlO/A.
It is further the prosecution case that PW6, Bhajaa Singh, President of
Truck Union, Nakodar and PW7 Kiran Deep Dbir, Secretary of BJP were
approached at Patel Chowk, Jalandhar by Sukhvinder Singh son of Mohan
Singh, Puran Chand and Sukhdev Paul, who told the witnesses that on
12.5.1992 at about 6.45 p.m. they had kidnapped Varun Kumar Mittal from the
street while he was playing and took him to the house of Sukhvinder Singh
and killed him by throttling him and have buried his body under the chaff.
The three accused further told the witnesses that Sukhdev Paul wrote two
letters at the instance of Sukhvinder Singh which were thrown in the
portion of the house occupied by the father of deceased Varun, Rakesh Kumar
PW2, on 12.5,1992 and 14.5.1992 respectively. Ac-cording to the prosecution
case, the accused also disclosed to the witnesses that Sukhvinder Singh had
told them that he had done so at the instance of his father Mohan Singh and
mother Surjit Kaur, The accused requested the witnesses to produce them
before the police, since they knew the police. After the investigation of
the case all the five appellants, Sukhvinder Singh, his father. Mohan Singh
mother Surjit Kaur alongwith Puran Chand and Sukhdev Paul were challaned
and prosecuted for the murder of Varun Kumar who was living alongwith his
parents as a tenant in a portion of the house belonging to Sukhvinder Singh
and his parents.
On 25th of May, 1992 a police party headed by SI Amar Singh, PW10
interrogated Sukhvinder Singh, Sukhdev Paul and Puran Chand, after taking
them into custody. Sukhvinder Singh, Sukhdev Paul and Puran Chand suffered
disclosure statements, separately, Ex.PWl0/B, Ex. PW10/C and Ex. PW10/D
respectively. These disclosure statements were attested by Hari Dutt and
Jugal Kishore witnesses. The disclosure statement of Sukhvinder Singh and
Puran Chand were also attested by Kashmir Singh, SI. In these disclosure
statements, the three accused are alleged to have separately disclosed that
they had kidnapped Varun Kumar on 12.5.1992 at 6.45 a.m. and later on
strangulated him and put his body in a gunny bag, which they had concealed
in the turiwala room of the residential house of Sukhvinder Singh and that
they could point out that place and get the dead body recovered. The three
accused then led the police party to the place mentioned by them and got
recovered the dead body of Varun Kumar from that place after pointing it
out. The dead body, after preparation of the inquest report, was sent for
post-mortem examination and Dr. J.S. Bajwa, PW11 who conducted the autopsy
on the dead body opined that the cause of death was due to asphyxia which
was sufficient in the ordinary course of nature to cause death. It was no
receipt of this post-mortem report, Ex. PW11/A, that the offence was
converted to one under Section 302/149IPC read with Section 120B IPC and
Section 3 of TADA.
The two letters Ex. PA and Ex. PC allegedly written by Sukhdev Paul
appellant were earlier seized and taken into possession. To determine their
authorship, the specimen handwriting of Sukhdev Paul was obtained before
Shri S.P. Garg, PW13. The specimen writing alongwith the original letters,
ExPA and Ex. PC, were thea sent to the Director, Forensic Science
Laboratory, Punjab, Chandigarh for comparison. The Asstt. Director
(Documents) after comparing, the specimen writings with the disputed
writings in letters Ex, PA and Ex. PC. opined that there was similarity
between the two and that there were no characteristic differences between
the disputed writings and the specimen writings. The Asstt. Director
(Documents) Forensic Science Laboratory opined that the similarities found
between the questioned and the standard writings were significant and
sufficient and when considered collectively led him to the opinion of their
common authorship.
The appellants were sent up for trial and after conclusion of the
prosecution evidence, in their statements recorded under Section 313 of the
Code of Criminal Procedure, they pleaded false implication and denied the
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prosecution allegations against them.
Since, there are no eyewitnesses to the actual murder of Varun Kumar, the
prosecution has relied upon the following pieces of circumstantial evidence
to connect the appellants with the criminal conspiracy the murder of Varun
Kumar. The circumstances relied upon by the prosecution both before the
Designated Court and before us in short are:
(a) Conduct of the appellants and particularly of Sukhvinder Singh
appellant as deposed to by PW1, Raj Kumar;
(b) Letters Ex, PA and Ex, PC written by Sukhdev Paul as per the opinion of
the handwriting expert by which demand for ransom was made for release of
Varun Kumar;
(c) Making of disclosure statements by Sukhvinder Singh, Sufchdev Paul and
Puran Chand, Ex. FW10/B, PW10/C and PW/D to the effect that they had put
the dead body in a gunny bag and concealed the same in the turiwala room in
the house of Sukhvinder Singh owned by Mohan Singh and Surjit Kaur and that
they could get the same recovered;
(d) Recovery of the dead body of Varun Kumar from the house of Sukhvinder
Singh, Mohan Singh and Surjit Kaur on the pointing out of the three
appellants pursuant to their disclosure statements;
(e) The deceased alongwith his parents was living as a tenant in the house
of Mohan Singh and the landlord wanted to get the portion of the house
under their tenancy vacated.
The learned Designated Court after recording the evidence found all the
circumstances established and opined as follows :
"In view of my above detailed discussion to observe here that accused
Sukhvinder Singh, Puran Chand and Sukhdev Paul succeeded in murdering a
minor child of 4-1/2 year, for obvious reasons as is apparent after going
through the disclosure state-ments suffered by them Ext. PW10/B to Ex.
PW10/D and also the recovery of the dead body vide Ex.PW10/E from the
turiwala room of the residential house of accused Mohan Singh, Surjit Kaur
and Sukhvinder Singh. Similarly, the prosecution has succeeded in
establishing the guilt of Mohan Singh and Surjit Kaur as per statement of
their son Sukhvinder Singh necessary intimation was given by them for
execution of the crime. I would not be going out of the record if I observe
here that in fact accused Sakhvinder Singh, Puran Chand and Sukhdev Paul
were having the blessings of accused Mohan Singh and Surjit Kaur to execute
the crime which was executed in minute detail because had Mohan Singh and
Surjit Kaur accused not been the active participants in this unlawful
criminal conspiracy then they would have told the whole fact to the police
or lodged the protest to the police against then-son. They did not act in
such manner and from this an irresistible inference can be drawn that
Sukhvinder Singh, Puran Chand and Sukhdev Paul accused in active connivance
with Mohan Singh and Surjit Kaur did the unlawful act in murdering Varun
Kumar with the help of a fertile brain, carved out after much thought,
consult-ations and deliberations.
When two or more persons agree to do, or cause to be done.:
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy.
In the instant case all the accused formed an assembly which can
conveniently be designated as unlawful assembly and all of them were having
the common object and this unlawful assembly com-mitted an offence in
prosecution of the object of that assembly, therefore, every member of that
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unlawful assembly is guilty of the offence. Further it be seen that all the
accused in furtherance of the common object committed terrorist act by
committing the murder of Varun Kumar with an intention to strike terror in
the minds of the people, (Emphasis ours)
Thus, I am or the considered opinion that the prosecution has been able to
prove the guilt of accused Sukhvinder Singh, Mohan Singh Surjit Kaur, Puran
Chand and Sukhdev Paul beyond the possibility of doubt. Thus the above
mentioned accused are held guilty of the offences under Sections 120B, 302
read with Section 149 of the Indian Penal Code and under Section 3 of the
Terrorist & Disruptive Activities (Prevention) Act, 1987."
Learned counsel for the appellants submitted before us that non of the five
circumstances relied upon by the prosecution had been established in the
case and that even otherwise all the alleged circumstances could not be
said to be not compatible with the innocence of the accused and consistent
only with the hypothesis of their guilt. It was submitted that the
Designated Court fell in serious error in relying upon the disclosure
statements of Sukhvinder Singh, Sukhdev Paul and Puran Chand Ex, PW10/B,
Ex.PwlO/C and Ex. PW10/D, leading to the recovery of the dead body of the
deceased, because a mere search of the house of accused Mohan Singh, Surjit
Kaur and Sukhvinder Singh by the investigating officer would have led him
to the recovery of the dead body and, therefore recourse to the provisions
of Section 27 of the Evidence Act was an abuse of the process of law, la
this connection, learned counsel referred to the statement of Bhajan Singh
PW 6 who stated that he had disclosed to the police about the presence of
dead body in the house of Mohan Singh, as disclosed to him by the accused
and argued that the ritual of recovery under Section 27 of the Evidence Act
was introduced to support a false case. Even, otherwise learned counsel
submitted, that the recovery was doubtful and the disclosure statements
pursuant to which the recovery is said to have been made, did not inspire
confidence and that the three disclosure statements were not admissible in
evidence. Learned counsel vehemently argued that the evidence relating to
the conduct of the appellants, which is the first circumstance relied upon
by the prosecution, does not bear scrutiny and the testimony of Raj Kumar
PW1 in any even does not implicate all the appellants. He further submitted
that Mohan Singh and Surjit Kaur had been implicated on misguided suspicion
and the prosecution had failed to proved that letters ExPA and Ex PC were
written by Sukhdev Pal. It was then argued that the specimen writings of
the appellants were not taken in accordance with the provisions of law and,
therefore, the report of Asstt. Director (Documents) Forensic Science
Laboratory, Chandigarh relied upon by the prosecution could not to the aid
to the prosecution to connect Sukhdev Paul appellant with the crime.
Reference in this connection was made to the testimony of PW8 and PW2.
Learned counsel for the State in reply submitted that the circumstances
relied upon by the prosecution were consistent only with the hypothesis of
the guilt of the appellants and that each of the circumstance had been
positively established by the prosecution and all the circumstances taken
together unmistakably established that they were the appellants and
appellants alone who had committed the crime, that since the appellants had
not raised any objection, at the time when their specimen writings were
taken, they could not be heard at this stage to complain about it, that the
recovery of the dead body from the house of one of the accused on the
disclosure statements made by some of the accused connected all the
appellants with the crime; and the law did not bar more than one disclosure
statements to be made leading to one and the same discovery and therefore
urged that the disclosure statements did not suffer from any infirmity
whatsoever.
We have given our anxious consideration to the submissions made at the bar
and have gone through the evidence with the assistance of learned counsel
for the parties.
The Designated Court convicted all the appellants for an offence under
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Section 3 of TADA and sentenced them to rigorous imprisonment for life and
to pay a fine of Rs. 4000 each and, in default of payment of fine they were
directed to further undergo rigorous imprisonment for 3 years each. It
appears to us that the conviction recorded by the learned Designated Court
under Section 3 of TADA is wholly unjustified, A bare perusal of Section 3
of TADA would reveal that none of the ingredients of that Section have been
alleged and established in the case. The prosecution evidence is totally
insufficient to bring home the charge under Section 3 of TADA on any of the
appellants. We must express our concern that the learned Designated Court
recorded conviction of all the appellants under Section 3 of TADA without
any discussion whatsoever in the judgment as to how the said provision was
attracted to the facts of the case. Merely because the investigating agency
had charge sheeted the appellants for an offence under Section 3 of TADA,
it did not mean that the Designated Court had to act mechanically and not
even examine whether or not from the evidence led by the prosecution, an
offence under Section 3 of TADA had been made before recording conviction
under the said provision, None of the prosecution witnesses, not even
investigating officer, implicated any of the appellants for committing an
offence under Section 3 of TADA and the prosecution led no evidence
whatsoever to bring the charge under that Section. Learned counsel for the
respondents in all fairness conceded that the conviction of all the
appellants for an offence under Section 3 of TADA was not made out. We,
accordingly set aside the conviction and sentence of all the appellants for
the offence under Section 3 of TADA and acquit them of the said charges.
So far as Mohan Singh and Surjit Kaur appellants are concerned, the only
piece of circumstantial evidence relied upon by the prosecution against
them is the recovery of the dead body of Varun Kumar from their house.
Though, the prosecution initially made an effort to show that in hatching
the conspiracy to kidnap Varun Kumar and then to murder him, Mohan Singh
and his wife Surjit Kaur, were instrumental, because as landlords of the
house they wanted to get the portion of the house under the tenancy of the
parents of Varun Kumar vacated and had instigated their son Sukhvinder
Singh to commit the crime, but a bare reference to the statements of PW8
and PW12 would show that this part of the prosecution case has not been
established, let alone proved beyond a reasonable doubt. The story of
getting the house vacated appears to be a clumsy concoction. There is not
an iota of material to support it.
The recovery of the dead body of Varun was made, on the basis of the
disclosure statements Ex. PWIO/B, Ex. PW10/C and Ex. PW10/D made by
Sukhvinder Singh, Sukhdev Paul and Puran Chand respectively and therefore,
to presume that Mohan Singh and Surjit Kaur "must also be a party to it" as
opined by the Designated Court is too much of a strain on intelligence and
certainly the prosecution cannot be permitted the liberty to rely on such
fanciful presumptions against Mohan Singh and Surjit Kaur on mere
conjecturisation. Our independent analysis of the evidence on the record
shows that there is no material worth mentioning, to demonstrate that Mohan
Singh appellant wanted the house vacated from PW2 or that it was at the
instance of Surjit Kaur or Mohan Singh that Sukhvinder Singh had acted or
that Mohan Singh and Surjit Kaur has any knowledge about the concealment of
the dead body of the deceased in the Turiwala’ room in their house. The
finding of the Designated Court regarding the implication of Mohan Singh
and Surjit Kaur is based on mere conjectures and surmises and notify any
admissible evidence. The circumstantial evidence relied upon the
prosecution to connect Mohan Singh and Surjit Kaur with the crime is
hopelessly deficient and the circumstance relied upon by the prosecution to
connect Mohan Singh and Surjit Kaur with the crime have not been
established beyond a reasonable doubt.
We shall now take up the case of the three remaining appellants, namely,
Sukhdev Paul, Puran Chand and Sukhvinder Singh.
The first piece of circumstantial evidence relied upon against them
revolves around the recovery of the dead body of Varun Kumar from the house
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of Sukhvinder Singh and his parents on the disclosure statement made by
Sukhvinder Singh, Sukhdev Paul and Puran Chand Ex. PW.10/B, EX. PW10/C and
Ex. PW10/D respectively. We are surprised at the manner in which the
disclosure statements were recorded by the investigating agency and relied
upon by the Designated Court. That Section 27 of the Evidence Act is an
exception to the general rule that a statement made before the police is
not admissible in evidence is not in doubt. However, vide Section 27 of the
Evidence Act, only so much of the statement of an accused is admissible in
evidence as distinctly leads to the discovery of a fact Therefore, once the
fact has been discovered Section 27 of the Evidence Act cannot again be
made use of to ’re-discover* the discovered fact. It would be a total
misuse - even abuse-of the provisions of Section 27 of the Evidence Act.
From the testimony of PW14, SI Kashmir Singh it transpires that in the
presence of PWs Hari Dutt and Jugal Kishore during the interrogation by SI
Amar Singh, Sukhavinder Singh appellant made a disclosure statement to the
effect that he alongwith others had concealed the dead body of Varun Kumar
in the stack of hay in the room and that he could get the same recovered.
His disclosure statement Ex. PW10/B was accordingly recorded which was
signed by him and attested by the panch witnesses. Except for the discovery
of the dead body of Varun Kumar on the basis of the disclosure statement of
Sukhvmder Singh, EX.FW10/B, no other portion of the statement of Sukhvmder
Singh implicating himself and others with the commission of the crime is
admissible in evidence. After the disclosure statement was made by
Sukhvinder Singh disclosing as to where the dead body of Varun Kumar had
been concealed and from where it could be recovered, the recording of the
disclosure statements of Sukhdev Paul and Puran Chand Ex. PW10/C and Ex.
PW10/D was a wholly impermissible exercise and an obvious attempt to rope
in Sukhdev Paul and Puran Chand with the aid of Section 27 of the Evidence
Act. Since, the information had already been given by Sukhvinder Singh,
appellant in his disclosure statement Ex. PW10/B, the (wo subsequent
statements Ex. PW10/C and Ex.PW10/D were not admissible in evidence because
at the best they were leading to the "re-discovery of a fact aleady
disclosed and capable of discovery. It has been admitted by PW14 that the
disclosure statement, Ex. PWIO/B, made by Sukhvinder Singh was the first in
point of time and that he had disclosed where the dead body had been
concealed and that he could point out the place and gel it recovered. The
investigating officer should have immediately acted upon disclosure
statement Ex. PW10/B, rather than wait and record two more disclosure
statements, as if the authenticity of recovery of dead body could be
achieved by the mere number of disclosure statements leading to the
discovery of one and the same fact. In the face of the admission of PW14 as
noticed above, it is obvious that the so-called disclosure statements of
Sukhdev Paul and Puran Chand Ex. PW10/C and Ex. PW10/D were not admissible
in evidence and the Designated Court fell in error in relying upon the
same. Admittedly, so far as Puran Chand is concerned, apart from the
disclosure statement Ex. Pw10/D, there is no other piece of circumstantial
evidence relied upon by the prosecution and once we rule out of
consideration the disclosure statement allegedly made by Puran Chand Ex,
PW10/D, the conclusion is inescapable that the prosecution has not been
able to establish the case against Puran Chand beyond a reasonable doubt
and there is no circumstance which can connect him with the alleged crime.
The prosecution has led no evidence to show any connection inter-se so far
as the three appellants are concerned.
We shall now take up the case of Sukhdev Paul appellant. For the reasons
already recorded while dealing with the case of Puran Chand, we hold that
the so-called disclosure statement, Ex PW10/C, made by Mm is also
inadmissible and cannot be used to connect him with the crime. The only
other circumstance relied upon by the prosecution against him is that he is
the author of the ransom letters Ex. PA and Ex. PC. To establish that the
author of letters Ex. PA and PC is Sukhdev Paul. The prosecution has relied
upon the report of the Asstt. Director (Documents), Forensic Science
Laboratory, Chandigarh dated 12.6.1992 Ex. PW10/J. The specimen writing of
Sukhdev Paul was taken by the Tehsildar Magistrate PW13. It would,
therefore, be relevant to first notice the provisions of Section 73 of the
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Evidence Act. It reads :
73. Comparison of Signature, writing or seal with others admitted of
proved.;
"In order to ascertain whether a signature, writing, or seal is that of the
person by whom it purports to have been written or made, any signature,
writing or seal admitted or proved to the satisfaction of the Court to have
been written or made by that person may be compared with the one which is
to be proved, although that signature, writing, or seal has not been
produced or proved for any other purpose.
The Court may direct any person present in Court to write any.words or
figures for the purpose of enabling the Court to compare the words or
figures so written with any words or figures alleged to have been written
by a person."
Under the Indian Evidence Act, two direct methods of proving the
handwriting of a person are :
(a) by an admission of a person who wrote it;
(b) by the evidence of some witness who saw it being written by that
person.
Apart from these, there are some other methods of proof of handwriting by
opinion. They are :
(1) by the evidence of a handwriting expert (Section 45).
(2) by the evidence of a witness acquainted with the handwriting of the
person who is said to have written the disputed writing (Section 47).
(3) opinion formed by the Court itself on comparison made of the disputed
writings with the admitted or specimen writings (Section 73).
We are concerned here primarily with the third mode.
A subsequent writing of an accused taken under the direction of the court
is in substance a specimen writing obtained for comparison of the disputed
writing with it. Though, Section 73 does not specifically say as to who
could make such a comparison but reading Section 73 as a whole, it is
obvious that it is the Court which has to make the comparison and it may
form the opinion itself by comparing the disputed and the admitted writ-
ings or seek the assistance of an expert, to put before the Court all the
material, together with reasons, which induce the expert to come to a con-
clusion that the disputed and the admitted writings are of one and the same
author so that the court may form its own opinion by its own assessment of
the report of the expert based on the data furnished by the expert. The
function of an handwriting expert if to opine after a scientific comparison
of the disputed writing with the admitted (specimen) writing with regard to
the points of similarity and dissimilarity in the two set of writings.
The second paragraph of Section 73 (supra) enables the court to direct any
person present before it to give his specimen writing "for the purpose of
enabling the court to compare" such writings with writings alleged to have
been written by such person. The obvious implication of the words "for the
purpose of enabling the court to compare" is that there is some proceeding
pending before the court in which or as a consequence of which it is
necessary for the court to compare such writings. The direction is
therefore required to be given for the purpose of "enabling the court to
compare" and not for the purpose of enabling an investigating or a
prosecuting agency to obtain and produce as evidence in the case the
specimen writings for their ultimate comparison with the disputed writings.
Where the case is still under investigation and no proceeding are pending
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in any court in which it might be necessary to compare the two writings,
the person (accused) cannot be compelled to give his specimen writings, The
language of Section 73 does not permit any court to give a direction to an
accused to give his specimen writing for comparison in a proceeding which
may subsequently be instituted in some other competent court. Section 73 of
the Evidence Act cannot be made use of for collecting specimen writings
during the investigation and recourse to it can be had only when the
enquiry or the trial court before which proceedings are pending requires
the writing for the purpose of ’enabling it to compare’ the same. A court
holding an enquiry under the Code of Criminal Procedure is indeed entitled
under Section 73 of the Evidence Act to direct an accused person appearing
before it to give his specimen handwriting to enable the court by which he
may be subsequently tried to compare it with the disputed writings.
Therefore, in our opinion the court which can issue a direction to the
person to give his specimen writing can either by the court holding the
enquiry under the Code of Criminal Procedure or the court trying the
accused person with a view to enable it to compare the specimen writings
with the writings alleged to have been written by such a person, A court
which is not holding an enquiry under the Code of Criminal Procedure or
conducting the trial is not permitted, on the plain language of Section 73
of the Evidence Act, to issue any direction of the nature contained in the
second paragraph of Section 73 of the Evidence Act. The words "any person
present in the court" in Section 73 has a reference only to such person who
are parties to a cause pending before the court and in a given case may
even include the witnesses in the said cause but where there is no cause
pending before the court for its determination, the question of obtaining
for the purposes of comparison of the handwriting of a person may not arise
at all the therefore, the provisions of Section 73 of the Evidence Act
would have no application.
The specimen writings in the instant case of appellant Snkhdev Paul were
taken under the directions of Sh. S.P. Garg, Tehsildar executive
Magistrate, PW 13. No enquiry or trial was admittedly pending in the court
of the Tehsildar Executive Magistrate. The enquiry and trial in this case
were pending under TADA before the Designated Court only. The direction
given by the Tehsildar Executive Magistrate Sh. S.P. Garg to the appellant
Sukhdev Paul to give his specimen writing was clearly unwar-ranted and not
contemplated or envisaged by Section 73 of the Evidence Act. The
prosecution has not disclosed as to at what stage of investigation or
enquiry or trial was Sukhdev Paul appellant produced before the Ex-ecutive
Magistrate PW13 to take the specimen writing of the appellant and why the
specimen writings were obtained under directions of PW13 and not of the
Designated Court. It is a mystry as to how the specimen writings required
to be used at the trial against the appellant were directed to be taken by
PW13, who was not enquiring or trying the case. To a specific question
during his cross-examination, PW13 admitted at the trial, that when he had
issued the direction to the appellant there was not document on his file,
which could go to show as to under whose orders the appellant had been sent
to him for taking his specimen handwriting. The manner in which the
specimen writing of Sukhdev Paul was taken is totally objectionable and
against the provisions of Section 73 of the Evidence Act. The Executive
Magistrate PW13 appears to have been too obliging and did not even care to
examine the provisions of law before issuing the direction to the
appellant. The argument of the learned counsel for the State that since no
objection was raised by the appellant when he was called upon to give his
specimen handwriting by PW13 therefore he cannot be permitted to make a
grievance now is only an argument of despair and the silence of the
appellant, who admittedly on that day, was not even represented by an
advocate, cannot certainly clothe PW13 with any jurisdiction to issue the
directions as envisaged by Section 73 of the Evidence Act. The specimen
writing of Sukhdev Paul could not, therefore, be made use of during the
Trial and the report of the handwriting expert, when considered in the
fight of the foregoing discussion, is rendered of no consequence at all and
cannot be used against Sukhdev Paul appellant to connect him with the
crime.
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That apart it is relevant to point out that PW8 Sulaxana, the mother of the
deceased Varun Kumar stated during her deposition in court that letters
Ex.PA & PC "are not those letters which I had found near the door on that
day" The prosecution made no effort to show s to how Ex. PA and Ex. PC saw
the light of the day, when PW8 had totally discounted the theory that she
had given those to the police. Thus considering on the basis of the
evidence on the record and the infirmity in the matter of taking of the
specimen handwriting of the appellant, we are of the opinion that the
prosecution has failed to establish that the letters Ex, PA & PC were
authored by Sukhdev Paul. Once, we rule out of consideration, letters Ex.
PA & Ex-PC as having been written by Sukhdev Paul appellant. There is no
other circumstance relied upon by the prosecution either before the
Designated Court or before us survives to connect Sukhdev Paul appellant
with the crime. The Designated Court has not adverted to much less
considered this aspect of the case and it appears to have been blissfully
ignorant of the provisions of Section 73 of the Evidence Act. In the
peculiar facts and circumstances of the case as noticed above, the specimen
writings of Sukhdev Paul obtain under the directions of PW13, who was not
authorised to issue such a direction, could not be used by the Designated
Court to hold by relying on the expert evidence, that the disputed and the
admitted writings had a common author. We, therefore, find that the case
against Sukhdev Paul, appellant has not been established by the prosecution
beyond a reasonable doubt.
It, now, takes us to the case of Sukhvinder Singh.
The circumstances relied upon by the prosecution to connect Sukhvinder
Singh with the crime are :
(1) The conduct of Sukhvinder Singh appellant as deposed to by PW1 Raj
Kumar;
(2) the making of disclosure statement by Sukhvinder Singh Ex.PWlO/B;
(3) recovery of the dead body of Varun Kumar from the house of Sukhviader
Singh pursuant to the above disclosure statement on the pointing out of
Sukhvinder Singh.
Though, at the trial another circumstance had also been pressed into aid
against Sukhvinder Singh namely, the conspiracy between him and his parents
with a view to evict Rakesh Kumar PW2 and have the portion of the house
under his tenancy vacated but that circumstance was rightly not pressed
before us and even otherwise in view of our findings regarding that
circumstance while dealing with the case of Mohan Singh and Surjit Kaur it
follows that the said circumstance cannot be used much less relied upon to
connect Sukhvinder Singh with the alleged crime. Since, the witnesses to
the alleged extra judicial confession turned hostile, no reliance was
placed and rightly so on the so-called extra-judicial confession to connect
this appellant with the crime. We are, therefore, left with the three
circumstances as noticed above and shall consider them hereafter.
From the testimony of PW1, Raj Kumar, the maternal uncle of the deceased it
transpires that when he was going to the first floor of his sister’s house
on the day when Varan was found missing, he had found three boys and had
identified Sukhvinder Singh as one of them. He had found him to be in a
perplexed state of mind. This conduct of Sukhvinder Singh, on the date when
Varun was abducted, is quite indicative of the complicity of Sukhvinder
Singh. Raj Kumar PW1 was not at all challenged during Ms cross-examination
about his noticing the perplexed state of the mind of Sukhvinder Singh.
Though, this conduct of Sukhvinder Singh by itself may not be of much
consequence but when considered alongwith the other two circumstances, that
is the disclosure statement Ex. PW10/B suffered by Sukhvinder Singh leading
to the recovery of the dead body from his house on his pointing out,
assumes much significance. From the evidence on the record, we are
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satisfied that the disclosure statement Ex. PW10/B was made by Sukhvinder
Singh voluntarily. In that behalf the evidence of PW10 Amar Singh, SI and
PW14 SI Kashmir Singh is cogent and trustworthy. They both deposed about
the manner in which Sukhvinder Singh had made the disclosure statement Ex.
PW10/B which was signed by Sukhvinder Singh and attested by the panch
witnesses. That was the first disclosure statement in point of time giving
any indication about the concealment of the dead body in the Turiwala room
of Sukhvinder Singh’s house. Their evidence also shows that Sukhvinder
Singh had led the police party to the turiwala room of his residential
house and pointed out the place from where the dead body of Varun Kumar was
recovered from a gunny bag concealed under a heap of Turi. Despite lengthy
cross-examination of PW10 and PW14, nothing has been brought from which any
doubt could be cast on their testimony, regarding the disclosure statement
Ex, PW10/B made by Sukhvinder Singh or the recovery of the dead body of
Varun Kumar on the pointing out of Sukhvinder Singh vide recovery memo Ex-
PWlO/E pursuant to the said disclosure statement. As a matter of fact the
evidence of these witnesses which both cogent and inspires confidence, has
remained totally unchallenged on any material aspect relating to the
disclosure statement and the recovery of the dead body. The argument of the
learned counsel for the appellant that had the investigating agency been
more vigilant and had searched the place before the disclosure statement
was made, they would have been able to discover the dead body of the
deceased from the house of Sukhvinder Singh, may go to show that the
investigating agency was somewhat negligent but by no stretch of
imagination can it be used to discredit. The disclosure statement Ex.PW10/B
made by Sukhvinder Singh and the recovery of the dead body pursuant to that
disclosure statement vide recovery memo EX.PW10/E. These are both highly
incriminating circumstance in so far as Sukhvinder Singh is con-cerned and
both the circumstances have not only been successfully established by the
prosecution but they also connect definitely and positively Sukhvinder
Singh with the crime. Learned counsel for the appellant was unable to point
out any there is no infirmity in so far as the evidence regarding the
disclosure statement or the recovery of the dead body is concerned. Each
one of these circumstances which has been established by the prosecution
against Sukhvinder Singh has been successfully proved. The chain of
circumstances against Sukhvinder Singh is so complete that if excludes the
possibility of any hypothesis other than the one which is consistent only
with the guilt of Sukhvinder Singh and inconsistent with his innocence. All
the circumstances from which the inferences have been drawn by us have been
firmly established by the prosecution and have remained unchallenged in the
cross-examination of the prosecution wit-nesses. All the circumstances
relied upon by the prosecution against Sukhvinder Singh definitely and
unerringly point towards the guilt of Sukhvinder Singh appellant and taken
cumulatively form a chain so com-plete that there is no escape from the
conclusion that the crime was committed by Sukhvinder Singh appellant and
none else. The medical evidence also lends credence to the prosecution case
against Sukhvinder Singh, May be, he also had some accomplices but since
the prosecution evidence is deficient, on that account, it is not possible
to identify those accomplices. Nonetheless, we find that the prosecution
has established the case against Sukhvinder Singh beyond every reasonable
doubt. We accord-ingly convict him for an affiance under Section 302 IPC
and maintain the sentence of imprisonment for life and a fine of 5000 and
in default of payment of fine, to further undergo rigorous imprisonment for
a period of four years as recorded by the Designated Court. The conviction
and sentence of Sukhvinder Singh for the offence under Section 120 B IPC
is, however, set aside.
As a result of the above discussion the appeal in so far as Mohan Singh,
Surjit Kaur, Puran Chand and Sukhdev Paul appellants are con-cerned, is
accepted and their convictions and sentences are set aside. The appeal of
Sukhvinder Singh is partly allowed and his conviction and sentence under
Section 3 of TADA and Section 120-B IPC is set aside. In all other respects
his appeal fails. For his conviction for an offence under Section 302 IPC,
fee is sentenced to imprisonment for life audio pay a fine of Rs. 5000 and
in default of payment of fine to suffer four years rigorous imprisonment.
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The four acquitted appellants, other than Sukhvinder Singh, shall be
released from custody forthwith, if not required in any other case.