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PETITIONER: JAGTA

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT23/04/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ REDDY, P. JAGANMOHAN

CITATION:  1974 AIR 1545            1975 SCR  (1) 165  1974 SCC  (4) 747  CITATOR INFO :  R          1985 SC  48  (15)  R          1990 SC1185  (2)  R          1991 SC1388  (8)

ACT: Circumstantial evidence--Criminal case--Value of.

HEADNOTE: The  accused  was convicted for the offences of  murder  and attempt to commit rape.  The evidence against him was purely circumstantial  consisting  of, (a) recovery of  some  petty ornaments  belonging  to the victim. (b) an  extra  judicial confession made by him to one of the prosecution  witnesses. (c) his presence near the place of occurrence on the day  of occurrence, and (d) injuries on the person of the accused. Allowing the appeal and acquitting the accused. HELD  This Court does not normally in an appeal  under  Art. 136   reappraise  the  evidence,  but  there   are   glaring infirmities  in  the  prosecution  evidence  in  the   case. Circumstantial  evidence  in order  to  warrant  conviction, should  be consistent only with the hypothesis of the  guilt of  the  accused  and when there is  reasonable.  doubt  the accused is entitled to its benefit. [172 C; 171F] (a)No reliance could be placed upon the evidence that  the deceased  was  wearing.  the ornaments on  the  day  of  the occurrence  and that those ornaments were removed  from  the person  of  the  deceased by the  accused  because,  (i)  No mention  of the ornaments not being found upon the  body  of the  deceased was mentioned in the F.I.R. by her father  and other witnesses who discovered her body. (ii) No mention was made  in the inquest report prepared in broad daylight  even though there is a specific column in the report relating  to ornaments  and clothes of the deceased, (iii) The nature  of the crime shows that the crime is one of sex and not one for pecuniary  gain, and (iv) It is extremely unlikely that  the accused,  who  was a landowner, would carry way  such  petty ornaments  to his house and keep them in his  shirt  pocket, and  thus provide evidence of his complicity in  the  crime. [169G-H; 170A-D] (b)There is absolutely no reason why the accused,  instead of  surrendering  himself to the, police, should go  to  the house  of  a  prosecution witness, blurt  out  a  confession

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before  him, and ask him to take him to the  police.   Since the  evidence  as  to  whether the accused  at  all  made  a confession  is  unreliable and lacking  in  probability  the question  as to what value would have been attached  to  the confession if the evidence had been found to be reliable and trustworthy,  need  not be considered.  The attempt  by  the investigating  agency to introduce a false  story  regarding the  removal  of the ornaments and their recovery  from  the accused  also  affects  the  credibility  of  the   evidence regarding  the extra-judicial confession.  Also, though  the dead  body was discovered according to prosecution at  11.30 p.m. even before, by 8.00 p.m., the father of the victim and the sarpanch were declaring that it was the accused who  had committed  the  murder.  It shows that body must  have  been recovered even by 8.00 p.m. [170E-G] (c)The fact that the accused was in his field at 1.00 p.m. and  was walking away at a fast pace at sun set  time  would not necessarily point to the guilt of the accused especially when  there is no evidence. (i) that no other  persons  were present  in the field, and (ii) regarding the time at  which the offence was committed. [171D] (d)Assuming  that the explanation of the accused that  the injuries  on  his person were caused by the  police  is  not trustworthy. that circumstance though suspicious, would  not be sufficient to warrant his conviction of a serious offence entailing death penalty. [171E-F] (e)The  mere  fact that the accused cut an  indecent  joke with  sister-in-law  of  the  victim  20  days  before   the occurrence could hardly be a valid basis for 166 suspicion, or in any case for a positive assertion. that  it was the accused who had murdered the deceased. [171H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 14(1) of 1973. Appeal by special leave from the judgment & Order dated  the 5th  January,  1973 of the Punjab & Haryana  High  Court  in Criminal  Appeal No. 931 of 1972 and Murder Ref.  No. 46  of 1972. R.K.,  Garg,  S. C. Aggarwal, S. S. Bhatnagar and  V.  J. Francis, for the appellant. H.   S. Marwah and Girish Chandra, for the respondent. B.   D. Sharma, for the complainant The Judgment of the Court was delivered by KHANNA,  J.  This  appeal by special leave  by  Jagta  alias Jagdish (34) is directed against the judgment of the  Punjab and Haryana High Court affirming on appeal and reference the conviction  of the appellant under section 302 Indian  Penal Code  for  causing  the  death of Phul  Pati  (23)  and  the sentence of death.  The appellant was also convicted by  the trial  court  under section 376 Indian Penal  Code  and  was sentenced  to undergo rigorous imprisonment for a period  of eight  years, but the High Court altered the  conviction  on that score to, that under section 376 read with section  511 Indian  Penal  Code and sentenced him  to  undergo  rigorous imprisonment for a period of two years-. Phul  Pati deceased was the daughter of PW Roopa of  village Guhna in district Rohtak.  She was married to Head Constable Baldev  Singh of village Bajana.  About two days before  the present occurrence Phul Pati came to her father’s house.  In the  afternoon  of  January  13, 1972  Phul  Pati  left  her father’s  house to go to his field to cut grass.   The  said

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field is in the area of village Farmana at a distance of  1- 1/2 Kos from the abadi of village Guhna.  The three villages Guhna, Farmana and Ridhao are near each other.  The  accused belongs to village Ridhao.  The field of the accused adjoins that  of Roopa, father of Phul Pati.  As Phul Pati  did  not return from the field in the evening, it is alleged   father Roopa  and brother Maha Singh went- to the fields in  search of her.  On reaching their field they found a heap of grass. They  shouted  for Phul Pati but got no response.   Khes  P1 which  had.  been taken by Phul Pati was seen lying  on  the Patti  of  a drain.  Roopa and Maha Singh shouted  for  Phul Pati  at  the patri of the drain also but got  no  response. Roopa  and  Maha Singh thereupon returned to  their  village abadi  and told Dharam Singh sarpanch, Bhima  lambardar  and Sube  member’  Panchayat. and others of their  village  that their daughter Phul Pati was not traceable.  It became  dark by that time.  Dharam Singh, Bhima, Sube, Roopa, Maha  Singh and  four or five other persons took four lanterns and  went to the fields to search for Phul Pati.  The party found  the dead  body of Phul Pati lying in the field of  Risala.   The string  of the salwar of Phul Pati had been untied  and  she was lying with her face downwards.  Her choti had been  tied round  her  neck.  Blood Was found to have  oozed  from  her mouth, and nose.  Leaving 167 Dharam  Singh,  Bhima, Sube and others near the  dead  body, Roopa ’left for police station Kharkhoda at a distance of 14 miles  from the place of occurrence and lodged report PF  at the  police station at 5.30 a.m. on the  following  morning. In  that  report Roopa after giving the above  facts  stated that   he  suspected  Jagta  accused  as  the   culprit   it responsible  for the murder of the deceased.  The, basis  of that  suspicion, ’according to Roopa, was that  the  accused had  about  20  days  earlier cut  indecent  joke  with  his daughter-in-law Birhmi (PW 3), wife of Maha Singh. Sub   Inspector  Gugan  Singh  after  recording  the   first information report, took a police party and went with  Roopa to  the Place of occurrence on scooter.  The  party  reached the place of occurrence at about 8.30 a.m. The Sub Inspector found  the  dead body, of Phul Pati lying there  guarded  by Dharam  Singh sarpanch, Maha Singh ’and ’others.  Blood  was found  to have fallen on the ground.  There were also  signs of struggle.  The Inspector prepared the inquest report  and the injury statement.  The dead body was then sent for  post mortem  examination to Rohtak.  Post mortem  examination  on the dead body of Phul Pati was performed by Dr. K. K. Sen at Rohtak on January 15, 1972 at 10 a.m. According further to the prosecution case, the accused could not  be found by the Sub Inspector on January 14, 1972.   On the  morning  of  January 15, 1972  the  Sub  Inspector  was present in the office of the co-operative society of village Farmana.  At about 6.30 a.m. on that day, it is stated,  the accused went to the house of PW Ram Singh of village Farmana and  told him that Phul Pati had been murdered at his  hands in  the  fields    and that he had  committed  a  gin.   The accused  also requested Ram Singh to produce him before  the police.   Ram Singh accordingly produced the accused  before Sub Inspector Gugan Singh in the office of the  co-operative society  at  7.30 a.m. The Sub, Inspector  put  the  accused under  arrest.   On interrogation by the  sub-Inspector  the accused  disclosed in the presence of Dharam Singh and  Sube that  he  had kept one Dhol (a small  ornament  for  wearing round’  the neck) and one Koka (nose pin) in a shirt  pocket in his house and could get the same recovered.  Statement PW of the accused was then recorded by the Sub Inspector.   The

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accused  then led the police party to his house  in  village Ridhao, at a distance of two furlongs from Farmana, and from the pocket of. shirt PS hanging in his house the accused got recovered  Dhol P2 and Koka P3.  The shirt,  though  washed, appeared  to  be blood stained.  Dhol, Koka and  shirt  were taken into possession and were sealed. The accused at the time of his arrest was also found to have injuries on his person.  He was got examined from Dr.  Pawan Kumar  at  12.30  p.m. on that day.   The  doctor  found  12 abrasions  on  the person of the accuse  The  injuries  were simple and had been caused by blunt weapon.  In answer to  a question, the doctor stated that two of the abrasions on the left  hand could be caused by sails or tooth  bite.   Smegma was  also found on the organ of the ’accused at the time  he was examined.                             168 Identification proceedings in respect of Dhol P2 and Koka P3 were  held by Shri Ranapartap Tehsildar (PW 10) on  February 4,  1972.  Dhol and koka were mixed with one other Koka  and two Dhols.  Dhol P2 and Koka P3 were correctly identified by Birhmi,  wife  of  Maha Singh, as  these  belonging  to  the deceased.   The said Dhol and Koka were also  identified  by Than  Singh goldsmith (PW 11) as those having been  prepared by the witness for Surja Mal, father-in-law of the deceased. At   the  trial  the  plea  of  the  accused   was    denial simpliciter.  As regards injuries on his person, the accused stated  that he was called by the police from’ his field  at 10 a.m. on January 14, 1972 and was thereafter kept at  the, police station.  The accused added that the injuries on  his person had been caused by the police.  The allegations about his  having made an extra judicial confession to  Ram  Singh and  about his having got recovered Dhol and Koka  from  the pocket of a shirt were denied by the accused. Learned  Sessions Judge Rohtak, before whom the accused  was tried,  accepted  the prosecution evidence about  the  extra judicial  concession  of the accused as well  as  about  the recovery of Dhol and Koka from the pocket of a shirt at  the instance of the accused.  The recovery of shirt P8 was  held to  be  not  an incriminating circumstance  as  no  one  had deposed  that the accused was wearing that shirt on the  day of  occurrence.   Reliance was also placed  by  the  learned Sessions  Judge  upon  the evidence of  Kishna  (PW  5)  and Chattar  Singh (PW 6). According to Kishna, he had seen  the accused at about 1 p.m. on the day of occurrence present  in his  fields.  The witness also saw Phul Pati going  at  that time  to her father’s field along the drain.  Chattar  Singh PW deposed that at about sunset time on that day, he saw the accused walking on a pucca road at fast speed.  The  accused was  at-  that  time going towards his  village.   On  being accosted by the witness, the accused did not stop and stated that  be  had  some work.  In the  result  the  accused  was convicted and sentenced as mentioned earlier. On appeal and reference the High Court substantially  agreed with  the  view taken by the trial court.  In  view  of  the presence  of  smegma on the organ of the accused,  the  High Court  was of the opinion that the actual commission of  the offence of rape was doubtful.  It was held that the  accused had attempted to commit rape on Phul Pati. We  have heard Mr. Garg on behalf of the appellant  and  Mr. Marwah  on behalf of the State and are of the  opinion  that the conviction of the accused-appellant cannot be sustained. There  can  be  no manner of doubt that Phul  Pati  was  the victim  of  a  beastly  assault.   The  assailant  not  only committed  or  attempted to commit rape upon  her  but  also strangulated her to death.  According to Dr. K. K. Sen,  who

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performed  post  mortem examination on the dead  body,,  the neck  of the deceased was found tied tightly all round  with her choti.  Ligature mark was horizontal continuous and                             169 complete.   On  dissection of the ligature mark,  blood  was found  in the subcutaneous tissues.  ’De face of  phul  Pati was swollen and cyanosis, The mouth was open and the  tongue was  protruding out.  Her face and nose were besmeared  with blood-stained mud. Blood was also coming out from the  right ear.   There  was  a laceration on  the  right  side-of  the vaginal  wall.   A lacerated wound was  on-the  left  middle finger.   There  were also  a number of abrasions  all  over the,  body.  The stomach contained three ounces of  digested food.   Death  ’in  the opinion of the doctor,  was  due  to asphyxia  as  a result of strangulation.   The  doctor  took three  slides  of vaginal smear and sent the  same.  to  the chemical examiner, whose report shows the presence of  semen on the same. The  case of the prosecution is that it was the accused  who murdered Phul Pati deceased by strangulating her.  The  High Court has further found that the murder of the deceased  was committed  by the accused when he attempted to  commit  rape upon  her.  There is no eye witness of the  occurrence,  but the prosecution has relied upon the recovery of Dhol P2  and Koka  P3 belonging to the deceased from the accused as  well as upon his extra judicial confession made to Ram Singh  PW. Reliance has further been placed by the prosecution upon the fact  that the accused was present near about the  place  of occurrence on the day of occurrence and that he had injuries on his person. We  may first deal with the evidence about the  recovery  of Dhol P2 and Koka P3 belonging to the deceased from the house of  the  accused  at his instance.   The  evidence  in  this respect  consists  of the testimony of Sub  Inspector  Gugan Singh  (PW  16), Dharam Singh sarpanch (PW  12)  and  Rajmal lambardar  (PW 13).  We have further the evidence about  the identification  of  those two ornaments by Birhmi  and  Than Singh  PWs  in the identification proceedings held  by  Shri Ranapartap.  After having been taken through the evidence on record,  we are of the view that the prosecution  allegation that the deceased at the time of the occurrence was  wearing Dhol P2 and Koka P3 and the same were removed by the accused is  highly improbable.  If Phul Pati deceased was, in  fact, wearing Dhol P2 and Koka P3 on the day of occurrence and the same  were  found  to  be missing when  her  dead  body  was recovered, it is most unlikely that her father Roopa (Pw  2) and  brother  Maha Singh (PW 8) would not have  noticed  the fact  that those two ornaments were missing when they  found the  dead  body’ lying in the fields.  Roopa in  that  event wouldhave made a mention of the fact that Dhol and Koka were missingin the first information report.  There  was, however, no mention inthe  first  information  report  of those two ornaments or about theirhaving been removed  from the body. Mr. Marwah on behalf of the State has argued  that it  is possible that the father and brother of the  deceased might not have noticed the removal of those two ornaments at night time when they found the dead body.  Assuming it to be so, we find no reason as to why no mention of this fact  was made when the inquest report was prepared in broad  daylight on the following  day by Sub Inspector Gugan Singh.  In  the inquest 170 report the Sub, Inspector reproduced the statement of  Roopa as  given in the first information report.  Column No. 7  of the inquest report :specifically relates to the condition of

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the  clothes  and ornaments of the deceased and  the  police officer preparing the inquest report has to make an entry in that  column about any marks on the dead body caused by  the removal of ornaments as well as other matters connected with those  ornaments.   It is natural to assume  that  the  Sub- Inspector  would  make  an enquiry  from  Roopa  and  others regarding  ornaments  worn by the deceased at  the  time  he filled in the above column.  The fact that, in spite of  the above  column, no mention was made of the missing  Dhol  and Koka  would tend to show that the evidence in  this  respect has  been subsequently introduced.  It would also seem  from the  nature of the crime that the object of the culprit  was satiation  of  carnal passion and not  pecuniary  gain.   It seems  most  unlikely that the accused who  is  A  landowner would carry two petty ornaments belonging to the deceased to his  house  and keep them in the pocket of  his  shirt  even though  those  two ornaments would provide evidence  of  his complicity  in  the  crime relating to  the  murder  of  the deceased.  We are, therefore, not prepared to place any  re- liance upon the evidence that the deceased was wearing  Dhol P2  and Koka P3 on the day of occurrence and that those  two ornaments  were removed from the person of the  deceased  by the accused. So  far  as- the alleged extra judicial  confession  of  the accused  is concerned, the prosecution has relied  upon  the evidence  of  Ram  Singh (PW 4).  After  having  been  taken through the evidence of that witness, we find the same to be lacking  in credence and devoid of any ring of  truth.   The police  was  admittedly  present in the office  of  the  co- operative  society  in  village Farmana on  the  morning  of January 15, 1972.  We find no reason as to why the  accused, instead of surrendering himself before the police, should go to  the house of Ram Singh in village Farmana, blurt  out  a confession  before  him and ask him to produce  the  accused before  the police.  Nothing has been shown to us as to  why the  accused  could  not himself go and  appear  before  the police’.   We have mentioned above that an attempt has  been made in this case to introduce the story of the recovery  of ornaments belonging to Phul Pati deceased from the  accused. The attempt of the investigating agency to introduce a false story about the removal of the ornaments of the deceased and their recovery from the accused would, in our opinion,  also affect  the credibility of the evidence regarding the  extra judicial  confession alleged to have been made to Ram  Singh PW.   The evidence about an extra judicial confession is  in the nature of things a weak piece of evidence.  If the  same is  lacking  in probability as it is in the.  present  case, there would be no difficulty in rejecting the same.  We are, therefore,  not  prepared  to place any  reliance  upon  the evidence  regarding  the extra judicial ,confession  of  the accused. Mr.  Marwah, has argued on the basis of observations in some cases  that  the value of a confession should be  judged  by taking   it  along  with  other  evidence  adduced  by   the prosecution.   This  question, in our opinion,  would  arise only  if there be reliable evidence about the making of  the confession.  If, however, the court finds the 171 evidence on the point as to whether the accused at all  made the’   confession   to   be  unreliable   and   lacking   in probability,,  no  question need be considered  as  to  what value  would  have been attached to the confession,  if  the evidence about the accused having made it had been found  to be reliable and trustworthy.  It is plain that the value  of the  confession  can be gone into only if its  existence  is

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established  by leading reliable evidence about the  accused having made it.  We may now deal with the evidence about the accused having. been seen at or about the place of occurrence on the day  of occurrence.   The evidence in this respect consists  of  the statement  of  Kishna  (PW  5) and  Chattar  Singh  (PW  6). According to Kishna, he saw the accused working in his field at  1  p.m.  The witness also, saw Phul Pati  going  to  the fields  alongside  the drain.  There is no material  on  the record to indicate as to what was the time of the commission of the offence.  There is no evidence on the record also  to show  that  no other persons were present in the  fields  at that time.  In the circumstances the presence of the accused in his field at I P.M cannot take the prosecution case  very far.   So  far  as  the evidence  of  Chattar  Singh  PW  is concerned, we find that all that the witness has, deposed is that the accused was found walking towards his village on  a pucca  road  at  a  fast speed at  sunset  time.   On  being accosted by the witness, the accused did not stop and stated that  he  had some work.  This circumstance would  also  not necessarily point to the guilt of the accused. Lastly , we have the evidence about the injuries which  were found on the person of the accused.  The explanation of  the accused  is  that those injuries were caused to him  by  the police.   Assuming that the explanation of the accused  with regard   to   those  injuries  is  not   trustworthy,   this circumstance  as  well as the circumstance about  his  being present in his fields at 1 p.m. on the day of occurrence and about  his going at sunset time on a pucca road towards  his village are hardly sufficient to warrant the, conviction  of the  accused in a serious offence entailing  death  penalty. It is well established that circumstantial evidence in order to  warrant conviction should be consistent only,  with  the hypothesis of the guilt of the accused.  The same cannot  be said  to be true of the circumstantial evidence  adduced  in this case. We may also, refer to one other circumstance.  According  to Dharam  Singh sarpanch (P W12), the dead body of  Phul  Pati was. discovered in the field of Risala at about 11 or  11.30 p.m. As against that, the ’evidence of Dharma (PW 7) is that he was told by Dharam Singh and Roopa at 8, p.m. on that day that  Jagta  accused  had murdered  Roopa’s  daughter.   The evidence of Dharma would thus go to show that the dead  body of  Phul Pati had been found before 8 p.m. and the  evidence of  Dharam  Singh PW that it was at about 11 or  11.30  p.m. that the dead body was found is not correct.  It is also not clear  as  to how Roopa and Dharam Singh could  be  positive that  it  was  the accused who  had  murdered  the  deceased because in a matter like this, when there is no eye witness, one  cannot be certain about the actual culprit.   The  fact that the accused had cut an indecent joke with Birhmi  about 20 days before the present occurrence- 172 would  hardly be a valid basis for the suspicion or in.  any case for the positive assertion that it was the accused  who had  murdered  Phul Pati deceased.  Although  in  the  first information  report  Roopa PW only expressed  his  suspicion regarding  the  complicity  of the  accused  appellant,  the evidence- of Dharma PW shows, as mentioned above, that Roopa and Dharam Singh PWs asserted positively at 8 p.m. that  the murder of the deceased had been committed by, ’the  accused. It  is  possible  that  there  was  some  other  evidentiary material with Roopa and Dharam Singh about the complicity of the accused but the same has not been produced at the trial. The evidence actually produced is either unreliable or  such

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as is not sufficient to warrant the conviction. It is no doubt true that this Court does not normally in  an appeal  under article 136 reappraise the evidence, but  that fact would not stand in the way of this Court examining  the matter  for  itself, if it finds that in  a  case  involving death  sentence the prosecution evidence is  afflicted  with some  glaring  infirmity.  The presence of injuries  on  the person of the accused does create a suspicion regarding  his corn plicity but that suspicion by itself and in the absence of  other  incriminating  evidence  would  not  warrant  his conviction.   The  matter  in  any case  is  not  free  from reasonable  doubt and the accused must necessarily have  the benefit thereof. We therefore accept the appeal, set aside the conviction  of the accused and acquit him. V.P.S. Appeal allowed 173