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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.