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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: BHAJAN SINGH & OTHERS.

DATE OF JUDGMENT16/08/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ CHANDRACHUD, Y.V.

CITATION:  1975 AIR  258            1975 SCR  (1) 747  1975 SCC  (4) 475  CITATOR INFO :  R          1985 SC  48  (15)

ACT: Criminal  law--Accused  charged  with  murder--Omission   by prosecution to establish that death was homicidal--Suspicion against  accused--Effect--Extra judicial  confession--Weight of--Evidence of association of accused and  deceased--Weight of. Practice      and     Procedure--Acquittal      by      High Court--Interference by Supreme Court.

HEADNOTE: The  four respondents were charged with the murder of  three persons.  The evidence in the case was circumstantial.   The trial  Court  found them guilty relying on the facts  :  (a) that  the accused wanted to grab the shares of the  deceased in  a property hence had a motive to commit the murder;  (b) that  three of the accused made extra  judicial  confessions confessing  to  the murders; (c) that two dead  bodies  were recovered  as a result of a statement of the fourth  accused from a place in front of his  house where they  were  buried and (d) that there was evidence of association of one of the accused and the third person alleged to have been murdered. On appeal, the High Court acquitted all the accused, on  the grounds  that  the  identity  of the  dead  bodies  was  not established, that it was not established that the death  was homicidal,  that  the  extra judicial  confessions  did  not inspire confidence, and that the evidence of association was not acceptable. Dismissing the appeal to this Court, HELD : In an appeal to this Court, against acquittal by  the High   Court,  this  Court  does  not  interfere  with   the appraisement  of the evidence by the High Court unless  that appraisement is vitiated by some glaring infirmity.  No such infirmity  has  been established in the present  case.   The circumstantial evidence adduced is far from satisfactory and suffers from a number of infirmities. [752 B-C] (a)  There was no evidence to show that the two dead  bodies were  those  of two of the deceased and that the  death  was homicidal.   The  medical evidence shows that  the  features were unrecognizable, and that the cause of their death could not be found out.  May be the doctor who Performed the  post

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morterm  should  have  sent the dead bodies  to  an  anatomy expert who might have been able to give an opinion as to the cause  of death and thus established that it was a  case  of homicide,   but  it  would  be  contrary  to  all   accepted principles of criminal jurisprudence to give the benefit  of that omission to the prosecution. [75OF-751 B] (b)  An  extra judicial confession, in the  very  nature  of things,  is a weak piece of evidence.  In the present  case, the evidence adduced regarding the making of the  confession also  lacks  plausibility and does not  inspire  confidence. [751 F] (c)  The date on which the witness stated to the  police  as having  seen  one  of the accused  and  the  third  deceased together  was about 15 days thereafter.  On the evidence  on record,  it  is  not  possible  to  fix  the  date  of   the association and consequently, the prosecution cannot  derive much benefit from such evidence. [751G-H] (d) Even if it be assumed that the dead bodies were those of two of the deceased and that the death was homicidal, it  is difficult  to  say whether the crime was the act of  one  or more  culprits.   In any case, it is difficult  to  fix  the identity of the culprits. [752A-B] (e)  The  circumstances  of  the  case  undoubtedly   create suspicion  against  the accused, but  suspicion  by  itself, however strong, is not sufficient to take the place of proof of guilt. [751 H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 75  of 1974. 748 Appeal by special leave from the Judgment & Order dated  the 13th  August,  1973 of the Punjab & Haryana  High  Court  in Criminal Appeal No. 291 of 1973. O. P. Sharma, for the appellant. Nuruddin Ahmad and U.P.  Singh, for the respondents. The Judgment of the Court was delivered by KHANNA,  J.  Bhahjan Singh (60) his wife Charan  Kaur  (40), their  son  Surjit Singh (20) and daughter  Jito  (16)  were convicted  by  the  learned  Sessions  Judge  Amritsar   for offences under section 302 and section 302 read with section 34 Indian Penal Code on charges on triple murder of  Harbans Singh (50), Bachan Singh (40) and Ishar Singh (12).   Bhajan Singh and Surjit Singh were sentenced to death while  Charan Kaur  and  Jito were sentenced to undergo  imprisonment  for life.  Conviction was also recorded against the four accused under  section  201 Indian Penal Code and each of  them  was sentenced  to undergo rigorous imprisonment for a period  of one year on that count.  On appeal and reference, the Punjab and Haryana High Court acquitted all the four accused.   The State  of Punjab thereafter came up in appeal to this  Court by special leave. Harbans  Singh  and Bachan Singh deceased were  brothers  of Bhajan  Singh accused.  Ishar Singh deceased was the son  of Hari  Singh,  a third brother of Bhajan Singh.   Hari  Singh died  a  few years before the present occurrence  in  Bihar. Harbans Singh and Bachan Singh were issueless.  Bhajan Singh and his three brothers, Harbans Singh, Bachan Singh and Hari Singh  owned  about 14-1/2 acres of land in the  village  of Dhulka in Amritsar district.  The case of the prosecution is that Harbans Singh, Bachan Singh and Ishar Singh were killed by the accused so that they might also get the share in  the aforesaid land of the three deceased persons.

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According  to the prosecution case, for about 10 or 12  days before May 7, 1972, the three deceased persons were found to be  missing.  The three deceased persons used to live  in  a house in the fields at a distance of about 1 1/2 miles  from the  village abadi.  Close to their house was the  house  of the  accused.   There was no other house nearby.   When  the three  deceased persons were found missing for a  number  of days,  Hari  Singh (PW 1) who is a cousin  of  Bhajan  Singh accused and Harbans Singh and Bachan Singh deceased, made  a report  at police station Jandiala on the morning of May  7, 1972.   It  was  mentioned  in the  report  that  the  three deceased   persons  had  been  missing  and  the   informant apprehended  that the accused might have done away with  the deceased  persons  with a view to grab their  share  in  the joint  land.  A case was thereupon registered under  section 364 Indian Penal Code by Sub Inspector Partap Singh (PW 8). After  the  registration  of the case,  it  is  stated,  Sub Inspector  Partap Singh went to the village of  the  parties and  found  Bhajan Singh harvesting the wheat  crop  in  the field.   The Sub Inspector then interrogated  Bhajan  Singh. Bhajan Singh disclosed that he had buried the dead bodies of his brothers Bachan Singh and Harbans Singh in 749 front  of his house and could get the same recovered.   Memo Ex.   P-2 with regard to the disclosure statement of  Bhajan Singh was prepared.  Bhajan Singh then led the police  party to  a place in front of his house.  That place was dug  open and  two dead bodies were recovered therefrom.  One  of  the dead  bodies, which was alleged to be that of Bachan  Singh, was in a naked state.  The other dead body which was alleged to be that of Harbans Singh, had a kachha (underwear) and  a phatui (waist coat) on it.  A piece of cloth was found  tied around  the  neck  of the dead body alleged to  be  that  of Harbans  Singh.   The  two dead bodies  were  then  sent  to mortuary where post mortem examination was performed by  Dr. Saluja  on the afternoon of May 8, 1972.  The  doctor  found the  two  dead  bodies to be in  a  decomposed  state.   The features  also could not be recognised.  The doctor did  not find  any ligature marks and could otherwise also  not  find out the cause of death. It  is  further the case of the prosecution that on  May  9, 1972  Surjit  Singh accused went to the house  of  Jabarjang Singh  (PW  5)  and requested him to  produce  Surjit  Singh before the police.  Surjit Singh also made an extra judicial confession  before  Jabarjang  Singh.   According  to   that confession, Charan Kaur had called Bachan Singh deceased  to the  house of the accused.  Bachan Singh was then killed  by the four accused in that house.  The four accused thereafter went to the house of Harbans Singh deceased and strangulated him  to death.  The dead bodies of Bachan Singh and  Harbans Singh  were thereafter buried in front of the house  of  the accused.   Surjit  Singh  is further  stated  to  have  told Jabarjang  Singh that Jito had called Ishar  Singh.   Surjit Singh  then took Ishar Singh and threw his dead body in  the river Beas. Charan  Kaur  and Jito, according to the  prosecution  case, went  to the house of Gurmej Singh (PW 3) on the morning  of May  10, 1972 and requested him to produce them  before  the police.   Charan  Kaur  and Jito also  made  extra  judicial confession  about  their  having along with  the  other  two accused caused the death of Harbans Singh and Bachan Singh. it is also the prosecution case that during the days of  the present  occurrence, Santokh Singh (PW 6) saw  Surjit  Singh taking Ishar Singh on a cycle near Rayya towards Beas. At the trial Gurmej Singh (PW 3) and Jabarjang Singh (PW  5)

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gave evidence about the extra judicial confessions of  three of  the  accused.  Santokh Singh (PW 6)  deposed  about  his having  seen  Ishar Singh being taken on a cycle  by  Surjit Singh  towards B.-as. Sub Inspector Partap Singh (PW  8)  is the investigating Officer and deposed about the recovery  of the two dead bodies at the instance of Bhajan Singh  accused from a place in front of his house. The  four accused in their statements under section  342  of "he   Code   of  Criminal  Procedure  denied   the   various prosecution  allegations.   No  evidence  was  produced   in defence. 750 The  learned Sessions Judge in recording a finding of  guilt against  the accused came to the conclusion that the  motive to commit the murder of the deceased had been proved against the  accused.   Reliance was also placed upon  the  evidence regarding  extra judicial confessions as also that  relating to  the  taking  of Isbar Singh towards the  river  Beas  by Surjit Singh accused on his cycle.  As regards the  recovery of the two dead bodies, the learned Sessions Judge held that only  that  part  of  the  statement  of  Bhajan  Singh  was admissible  as  related  to the recovery  of  the  two  dead bodies.  The part of the statement that the two dead  bodies were  of Harbans Singh and Bachan Singh was held to  be  not admissible in evidence. On appeal and reference the learned Judges of the High Court found  that there was no evidence to show that the two  dead bodies which had been recovered were those of Harbans  Singh and  Bachan Singh.  The record of the case was further  held to be bereft of any material which might show that the death of  the  persons whose dead bodies had  been  recovered  was homicidal.  The evidence about the extra judicial confession of  the  accused was found to be not  inspiring  confidence. Likewise,  the  evidence of Santokh Singh about  his  having seen  Surjit  Singh taking Ishar Singh on a  cycle  was  not accepted.  In the result the accused were acquitted. We  have heard Mr. Sharma on behalf of  the  appellant-State and  are  of  the opinion that no case  has  been  made  for interference with the judgment of the High Court.  There  is no  eye witness of the occurrence and the conviction of  the accused   is   sought  to  be  accured  on  the   basis   of circumstantial  evidence.  We, however, find that  the  evi- dence  which  has  been adduced in this  case  is  far  from satisfactory   and  that  it  suffers  from  a   number   of infirmities.  In the first instance, there is no evidence on record to show that the two dead bodies which are alleged to have been recovered in pursuance of the disclosure statement of Bhajan Singh were those of Bachan Singh and Harbans Singh deceased.  The evidence of Dr. Saluja is clear on the  point that  the features of the persons on whose dead  bodies  the doctor performed post mortem were unrecognisable.   Question then arises as to whether the death of the two persons whose dead  bodies were recovered was homicidal.  So far  as  this aspect  is  concerned, we find that Dr. Saluja  has  deposed that he found no marks of ligature on either of the two dead bodies.  According further to the doctor, he could not  find the cause of death because the two dead bodies were in a de- composed  state.  In the face of the above evidence  of  the doctor, it is not possible to hold that the death of the two persons, whose bodies were recovered, was homicidal. The learned Sessions Judge in the course of his judgment has observed   that  the  doctor  who  performed   post   mortem examination  was careless inasmuch as he failed to send  the two  dead bodies to the Professor of Anatomy who might  have been  in a position to express opinion after  examining  the

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hyoid bone and cervical vertebra as to whether the death  of the two deceased persons was due to strangulation.  Although it may be that it would have been more appropriate on the 751 part  of  the  doctor to have sent the  dead  bodies  to  an anatomy  expert,  the  fact that the doctor did  not  do  so cannot  be a ground for drawing an inference adverse to  the accused.   The accused cannot be made to suffer  because  of that omission of the doctor: It would indeed be contrary  to all accepted principles to give the benefit of that omission to  the prosecution.  The onus in a criminal trial  is  upon the prosecution to prove the guilt of the accused.  If there be  any  gap  or lacuna in  the  prosecution  evidence,  the accused and not the prosecution would be entitled to get the benefit of that. Coming  to  the evidence of extra judicial  confessions,  we find  the  same to be improbable and  lacking  in  credence. According  to  Gurmej  Singh and Jabarjang  Singh  PWs,  the confessing accused came to them and blurted out confessions. They  also  requested these two witnesses  to  produce  them before the police.  The resume of facts given above would go to show that according to the prosecution case,, the murders of  the  three  deceased persons were committed  in  a  most heinous  manner  and under a veil of secrecy.   Persons  who commit such murders after taking precautions of secrecy  are not normally likely to become garrulous after the commission of  the offence and acquire a sudden proneness to blurt  out what  they were at pains to conceal.  In any case  it  seems rather  odd  that  all the three accused who  had  not  been arrested  till the morning of May 9, 1972 should  be  seized almost at the same time by a mood to make confession.  It is significant that Surjit Singh, Charan Kaur and Jito  accused had  no  particular relationship or connection  with  Gurmej Singh  and  Jabarjang Singh PWs.  These two  witnesses  were also  not in such a position that the above mentioned  three accused would be willing to repose their confidence in them. If  Surjit Singh, Charan Kaur and Jito wanted  to  surrender themselves  before the police, we fail to understand  as  to why  they should not themselves surrender before the  police and go instead to Gurmej Singh and Jabarjang Singh and blurt out confessions before them.  The evidence of extra judicial confession  in the very nature of things is a weak piece  of evidence.   The  evidence  adduced in this  respect  in  the present case lacks plausibility and, as observed by the High Court, it does not inspire confidence. As  regards  the evidence of Santokh Singh (PW  6)  who  has deposed  that  he saw Surjit Singh taking Ishar Singh  on  a cycle towards Beas, we find that according to the witness he made a statement to the police about that fact about 15 days after  he had seen Surjit Singh and Ishar Singh going  on  a cycle.   The date on which Santokh Singh made  statement  to the  police  is  not on the record and as  such  it  is  not possible to fix the approximate date on which Santokh  Singh had seen Surjit Singh and Ishar Singh going on a cycle.  The prosecution consequently cannot derive much benefit from the statement of Surjit Singh. The circumstances of this case undoubtedly create  suspicion against  the accused.  Suspicion, by itself, however  strong it may be, is not sufficient to take the place of proof  and warrant a finding of guilt of the accused.  Another weakness of the prosecution case is that as 752 many as four persons have been involved in this case.   Even if  it  may  be  assumed that the  dead  bodies  which  were recovered  from  the  place in front of  the  house  of  the

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accused  were  those  of  Harbans  Singh  and  Bachan  Singh deceased and that their death was homicidal, it is difficult to say whether the dastardly crime was the act of one or two culprits  or of a larger number of them.  In any case it  is difficult to fix their identity. In  an  appeal  against  the  judgment  of  the  High  Court recording  a  finding  of acquittal,  this  Court  does  not interfere with the appraisement of the evidence by the  High Court  unless that appraisement be vitiated by some  glaring infirmity.   No  such  infirmity has  been  brought  to  our notice.  There is, in our opinion, no merit in this  appeal. It accordingly fails and is dismissed. Appeal dismissed                                             V. P. S. M185 Sup.  Cl/75--2500--1-9-75-GIPF. 753