Full Judgment Text
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CASE NO.:
Appeal (crl.) 1721 of 1996
PETITIONER:
State of Haryana
RESPONDENT:
Jagbir Singh and Anr.
DATE OF JUDGMENT: 26/09/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
WITH
CRIMINAL APPEAL NOS.1237-1238/2003
(Arising out of SLP (Crl.) Nos. 1076-1077/1996]
----
ARIJIT PASAYAT, J.
Leave granted in SLP (Crl.) Nos. 1076-1077/1996.
Questioning legality of judgment rendered by a Division Bench of
the Punjab and Haryana High Court, Criminal Appeal No. 1721 of 1996 has
been filed by the State of Haryana. The other two appeals are by the
informant. An innocent child of about 4 years was the victim of
unnatural death. According to the prosecution, respondents caused his
homicidal death after kidnapping him. The motive for the killing was
stated to be intended demand of ransom for his release. The Sessions
Judge, Bhiwani found the respondent-accused Jagbir Singh to be guilty of
offences punishable under Section 302 IPC. He was also convicted for
offence punishable under Sections 364, 201 and 384 of the Indian Penal
Code, 1860 (in short the ’IPC’). For the offence punishable under
Section 302 IPC he was awarded death sentence and for other offences
period of sentence already undergone in custody. Accused Umed Singh was
convicted for offences punishable under Section 201 IPC and was directed
to suffer RI for 3 years and fine. Both the accused persons preferred
appeal before the High Court. The High Court by the impugned judgment
found them not guilty.
According to the prosecution, death of the victim was on
6.9.1991 and passing through a chain of incidents and happenings,
finally the First Information Report was lodged on 9.9.1991. In between,
a ransom letter meant for somebody else was found in torn condition and
that led to suspicion against the accused-respondents. Accused-Jagbir
is related to Daya Nand (PW7), a teacher. It appears that on account of
several circumstances, the villagers thought that accused-Jagbir was
responsible for disappearance of the child. He was given time to
produce the child. A ransom note was found to be in the hand writing of
accused-Jagbir and he is stated to have pointed out the place where the
dead body was buried in his house and also on the basis of his
information certain articles were recovered. It was also the version
of PW7 that at a point of time, accused-Jagbir was taken to the police
with the material indicating his complicity in the alleged incident. But
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the police did not arrest him and left him off. It was pointed out
there was grave doubt about the manner in which the investigation was
being conducted, and alleged inaction of police. On completion of
investigation charge sheet was placed and accused faced trial. The case
before the Trial Court was based on circumstantial evidence. The
circumstances which according to the prosecution established guilt of
the accused are as follows:
(1) The ransom notes were in the handwriting of the accused-
Jagbir Singh;
(2) There was extra-judicial confession before PW-10 and;
(3) Recovery of dead body on the basis of information given by
the accused while in custody in terms of Section 27 of the Evidence Act,
1872 (for short ’the Evidence Act’).
The Trial Court found the above circumstances sufficient for
establishing guilt of the accused persons for the offences alleged. In
appeal, the High Court upset the findings and held the accused persons
not guilty.
In support of the appeals, learned counsel for the State and the
informant submitted that the High Court’s approach was erroneous. It
failed to notice that the police was adopting a partisan role and the
evidence of witnesses brought on record was in a particular line. The
investigation was done otherwise and the police did not place adequate
material before the Court. It was pointed out that the ransom note has
been erroneously discarded by the High Court. It should have noticed
that the accused-Jagbir accepted the handwriting to be his and,
therefore, the handwriting expert’s report was available to be used
against the accused; particularly when the handwriting was given
voluntarily for comparison. Further the extra judicial confession
before PW-10 has been discarded without any reasonable basis. Finally,
when the dead body was recovered from the house of the accused on the
basis of the information given while in custody, the High Court should
have relied upon the same.
There was no appearance for the respondents-accused when the
matter was taken up for hearing, though the respondents had appeared
through their counsel, and the cause list indicated name of the counsel.
It is unfortunate that an innocent child has lost his life but
the crucial question is whether the accused persons were responsible for
his death and the prosecution was able to prove its claims beyond
reasonable doubt. As stated earlier the case rests on circumstantial
evidence.
It has been consistently laid down by this Court that where a case
rests squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are
found to be incompatible with the innocence of the accused or the guilt
of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC
1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316);
Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P.
v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of
Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR
1989 SC 1890). The circumstances from which an inference as to the guilt
of the accused is drawn have to be proved beyond reasonable doubt and
have to be shown to be closely connected with the principal fact sought
to be inferred from those circumstances. In Bhagat Ram v. State of
Punjab (AIR 1954 SC 621), it was laid down that where the case depends
upon the conclusion drawn from circumstances the cumulative effect of
the circumstances must be such as to negative the innocence of the
accused and bring the offences home beyond any reasonable doubt.
We may also make a reference to a decision of this Court in C.
Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has
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been observed thus:
"In a case based on circumstantial evidence,
the settled law is that the circumstances from which
the conclusion of guilt is drawn should be fully
proved and such circumstances must be conclusive in
nature. Moreover, all the circumstances should be
complete and there should be no gap left in the chain
of evidence. Further the proved circumstances must be
consistent only with the hypothesis of the guilt of
the accused and totally inconsistent with his
innocence....".
In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79),
it was laid down that when a case rests upon circumstantial evidence,
such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and
firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively should
form a chain so complete that there is no escape from
the conclusion that within all human probability the
crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should
be inconsistent with his innocence.
In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it
was pointed out that great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the accused must be
accepted. It was also pointed out that the circumstances relied upon
must be found to have been fully established and the cumulative effect
of all the facts so established must be consistent only with the
hypothesis of guilt.
Sir Alfred Wills in his admirable book "Wills’ Circumstantial
Evidence" (Chapter VI) lays down the following rules specially to be
observed in the case of circumstantial evidence: (1) the facts alleged
as the basis of any legal inference must be clearly proved and beyond
reasonable doubt connected with the factum probandum; (2) the burden of
proof is always on the party who asserts the existence of any fact,
which infers legal accountability; (3) in all cases, whether of direct
or circumstantial evidence the best evidence must be adduced which the
nature of the case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence of
the accused and incapable of explanation, upon any other reasonable
hypothesis than that of his guilt, (5) if there be any reasonable doubt
of the guilt of the accused, he is entitled as of right to be
acquitted".
There is no doubt that conviction can be based solely on
circumstantial evidence but it should be tested by the touch-stone of
law relating to circumstantial evidence laid down by the this Court as
far back as in 1952.
In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh,
(AIR 1952 SC 343), wherein it was observed thus:
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"It is well to remember that in cases where
the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is
to be drawn should be in the first instance be fully
established and all the facts so established should
be consistent only with the hypothesis of the guilt
of the accused. Again, the circumstances should be
of a conclusive nature and tendency and they should
be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave
any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such
as to show that within all human probability the act
must have been done by the accused."
A reference may be made to a later decision in Sharad Birdhichand
Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while
dealing with circumstantial evidence, it has been held that onus was on
the prosecution to prove that the chain is complete and the infirmity of
lacuna in prosecution cannot be cured by false defence or plea. The
conditions precedent in the words of this Court, before conviction could
be based on circumstantial evidence, must be fully established. They
are:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned ’must’ or ’should’ and not
’may be’ established;
(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 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.
These aspects were recently highlighted in State of Rajasthan v.
Rajaram (2003 AIR SCW 4097)
We shall examine the circumstances highlighted. So far as ransom
notes are concerned, prosecution sought to rely upon the report given by
the handwriting expert. It appears that the accused was taken before
Addl. Chief Judicial Magistrate, Bhiwani. According to him, on
10.9.1991 the accused was brought before him in custody for giving his
specimen signature under Section 73 of the Evidence Act. It was noticed
by this Court in State of Uttar Pradesh v. Ram Babu Misra AIR 1980 SC
791) that the Chief Judicial Magistrate has no power to direct the
accused to give his specimen signature for comparison during
investigation. Section 73 of the Evidence Act reads as follows:
"Section 73- Comparison of signature, writing or
seal with others admitted or 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
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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 such person.
This section also applies, with any necessary
modifications, to finger-impressions".
The second paragraph of Section 73 enables the Court to direct any
person present in the Court to give specimen writings ’for the purpose
of enabling the Court to compare’ such writings with writings alleged to
have been written by such person. The clear implication of the words
’for the purpose of enabling the Court to compare’ is that there is some
proceeding before the Court in which or as a consequence of which it
might be necessary for the Court to compare such writings. The
direction is to be given for the purpose of enabling the Court to
compare and not for the purpose of enabling the investigating or other
agency ’to compare’. If the case is still under investigation there is
no present proceeding before the Court in which or as a consequence of
which it might be necessary to compare the writings. The language of
Section 73 does not permit a court to give a direction to the accused to
give specimen writings for anticipated necessity for comparison in a
proceeding which may later be instituted in the Court.
In order to enable exercise of power under Section 73, the
pendency of a proceeding before the Court is the sine qua non.
Therefore, the comparison of the signature on the alleged ransom note in
no way helps the prosecution.
Great emphasis was laid by learned counsel for the State on the
evidence of PW-4, the Addl. CJM that accused had admitted that the
signature was his. This statement is of no assistance. The witness has
admitted that the statement was made before him by the accused in the
presence of police officials. The second circumstance is the alleged
extra judicial confession before PW-10. The High Court has analysed the
evidence in great detail. It is on record that the accused-Jagbir was
being taken to various places and at different points of time he was
being pressurized to make statement. Though the accused was claimed to
have made the statement in the presence of large number of persons, a
combined reading of the evidence shows that nobody else speaks about the
so-called extra judicial confession, not even those who have been
examined as PWs. Though PW10 said that there were many persons who had
heard it, no other person has stated about it. The statement of PWs 7
and 10 goes to show that accused was being interrogated by PWs and other
villagers as well as his father and other relatives. Interrogation
continued for about 3 days when allegedly Jagbir confessed his guilt.
Though the First Information Report was lodged by PW7 after knowing
about the extra judicial confession, there is no mention about this
vital fact. In a given circumstance, omission to mention about the
particular aspect may not render prosecution version suspicious. But
when circumstances in the present case are taken in the entirety
alleged extra judicial confession is not believable. In order to make
an extra judicial confession a reliable evidence it has to be shown that
the same was voluntary. The factual scenario as presented by the
prosecution goes to show that the alleged extra judicial confession
cannot be termed to be voluntary even if it was said to have been made,
as claimed. The High Court was right in discarding the alleged extra
judicial confession.
What remains now to be seen is whether the recovery of the dead
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body from the premises of accused establishes prosecution version.
According to the prosecution when the Panchayat gave time to the accused
to produce the boy alive or dead, he accepted that the dead body was
buried in his compound. The accused dug the land and on seeing leg of
the dead body they stopped digging and went to the police. The High
Court has found that prosecution claimed that the two accused were
arrested by the Sub Inspector Mahender Singh Bhatti (PW 12) on 9.9.1995
on the culvert of Jai Canal about 8.00 p.m. in the presence of one
Chatter Singh and Om Parkash. However, Om Parkash (PW 10) has denied
about the arrest of the accused by PW12 near canal. From the statement
of PW12, it appears that the accused persons after their arrest made
disclosure of the statement about ransom, concealment of the dead body
and that the dead body recovered in the presence of aforesaid Chatter
Singh and Om Parkash (PW10). It is belied by the statement of Om Parkash
(PW10). According to this witness, when the accused made a voluntary
statement in the presence of many others he pointed out where the body
was buried. They went to the police station where they met PW12 and told
him about finding the dead body. PW10 told him that dead body was to be
handed over to Sr. S.P. or the Dy. S.P. Evidence of PW10 further shows
that PW.12 accompanied by another ASI and other police officials went to
the village. There many people had assembled and as the villagers
started shouting and agitating that led to altercation; both the accused
were arrested by the Dy.S.P. Thereafter it is stated that the accused-
Jagbir made a disclosure statement, where he (PW10) and Chatter Singh
were stated to be eyewitnesses. One thing is clear that there are
unexplained contradictions about the place where the accused were
arrested and manner of recovery. Since the dead body was recovered on
the basis of information already known, Section 27 of the Evidence Act
has no application. As observed by this Court in Aher Raja Khima v.
State of Saurashtra (AIR 1956 SC 217), if a recovery of the
incriminating articles alleged to have been made by the accused while
in custody is inadmissible in evidence if the police already known where
they were hidden. That takes the case out the purview of Section 27 of
the Evidence Act.
However, if a witness can be believed that in his presence the
accused person gave recovery of something (of course while not in police
custody) it may be a suspicious circumstance, de hors Section 27 of the
Evidence Act. But, as noted above, the High Court has analysed the
evidence in the present case in great detail to find the evidence to be
contradictory and unacceptable in relation to extra judicial confession
and alleged recovery. That being so, the High Court’s conclusion cannot
be faulted.
Looked from any angle the judgment of the High Court does not
suffer from any infirmity which warrants interference.
It is true that an innocent child has lost his life and there may
be some truth about deficiency in the evidence collection mode. But the
court can act on the evidence brought before it. Even though the
investigation may not be entirely blemishless, at the same time when the
material brought on record is insufficient, the course adopted by the
High Court cannot be faulted. It does not appear that before the Trial
Court or the High Court any grievance was made regarding remiss in
investigation or not making investigation in the right direction.
The appeals are without merit and deserve dismissal, which we
direct.