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PETITIONER: BALBIR SINGH & ANOTHER

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       20/08/1996

BENCH: KURDUKAR S.P. (J) BENCH: KURDUKAR S.P. (J) MUKHERJEE M.K. (J)

CITATION:  JT 1996 (7)   342        1996 SCALE  (6)72

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      This Criminal  Appeal is  directed against the judgment and order  dated June 24, 1985 passed by the Sessions Judge, Special Court,  Ferozepore, convicting both the appellants - accused for an offence punishable under Section 302/34 IPC.      2. The  appellants -  accused were  put  up  for  trial before the Special Court for committing the murder of Harbit Singh alias  Raju aged  about five  years. He was the son of Mahinder Singh,  the brother  of Inder  Singh (P.W.6). It is the case  of the prosecution that on December 14, 1984, Raju while playing  along with  his friends  in  front  of  their house,  was   found  missing   in  the  evening.  A  missing information was  lodged with  the relatives of Raju searched him throughout  the night  but could not trace him. However, on 15th  December, 1984  at about  7  p.m.  these  witnesses noticed a  crowd near  the DAV College and after going there the found  the dead  body of  Raju  lying  near  the  school compound. They  also noticed  that the  amulet and rod which were worn by the deceased Raju were missing. An FIR was then lodged with  the police station, city Fazilka and thereafter investigation commenced.  During the course of investigation on 31.1.1985,  the accused  came to be arrested. The accused being interrogated  made a statement under Section 27 of the Indian evidence  Act which led to the recovery of amulet. It also transpired  during the  investigation that  the accused made an  extra judicial  confession before  one  Pala  Singh (P.W.7), a  Municipal Commissioner  at Fazilka.  As  regards motive, the prosecution case was that in the year 1971 Inder Singh (PW  6) who was then unmarried, had a love affair with Dialo, a  sister of  Balbir Singh  (A-1) and  once they were caught in  a compromising  position. On  seeing this  Balbir Singh (A-1)  was terribly  upset and on two occasions he had challenged Inder  Singh and  told him  that he  will take  a revenge at the appropriate time. This love affair, according to Inder  Singh ended  after he  got married. Dialo was also

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married very  soon after the said incident. After completing the investigation  the accused  were tried for the aforesaid offences.      3.   Both the  accused pleaded not guilty to the charge and claimed to be tried. According to them they are innocent and they have been falsely implicated in the present crime.      4.   The prosecution in support of its case relied upon the evidence  of as  many as  nine witnesses  which included Mohinder Singh  (P.W.5), the  father of  the deceased  Raju, lnder Singh  (P.W.6) the brother of Mohinder Singh and other formal witnesses.      5.   It is  not and  cannot be  disputed that  Raju met with a  homicidal death.  It is  needless  to  set  out  the various injuries  that were  found on the dead body of Raju. Dr. Inder  Muhan Challana (P.W.1), who performed the autopsy stated that  Raju died  due to several ante mortem injuries. It can,  therefore, be safely concluded that Raju met with a homicidal death.      6.   At  the   outset  it   may  be   stated  that  the prosecution case  rests upon  circumstantial  evidence.  The learned trial  judge in paragraph 19 in his Judgment pointed out five  circumstances (A  to E)  and according to him each one of  them has been conclusively proved by the prosecution and these  circumstances if  put together complete the chain of circumstances to prove the guilt of the accused.      We may  also state  that the  learned counsel appearing for the parties did not dispute that these are the only five circumstances on which the entire prosecution case rests: (i) Motive; (2) Medical evidence; (3) Foot prints at the spot; (4) Recovery of amulet and thread: (see sic rod) and (5) Extra Judicial confession by the accused      7. Coming to the first circumstance, namely,the motive, it is  stated by  Inder Singh  (P.W.6) that he had developed illicit relations in the year 1971 with Dialo, the sister of accused No.1  and because  of this,  accused  had  a  grudge against his  family members.  On two  occasions the  accused No.1 had  challenged  to  take  revenge.  He  admitted  that immediately thereafter  he as  well as  Dialo  were  married separately and  thereafter no  such relationship  continued. This circumstance  found favour  with the trial Judge but in our opinion  having regard to the passage of time and in the absence of  any incident during this long period of 14 years it would  be very  difficult to  accept the evidence of this witness  as  regards  the  alleged  motive.  It  is  equally improbable that  A-1 would  kill an  innocent boy (Raju) who was then just five years old. If at all accused No.1 had any grievance it could be against Inder Singh and not against an innocent child.  In this  view of  the matter  we are of the opinion that  the learned  trial judge has committed a great error in  upholding that  the  prosecution  has  proved  any motive for the murder.      8. As  far as  the second circumstance, namely, medical evidence is  concerned as  indicated  earlier  there  is  no challenge whatsoever  to the said evidence and we may safely conclude that Raju met with a homicidal death.      9. Coming  to  the  third  circumstance,  namely,  foot prints,  this   circumstance  is   although  proved  by  the prosecution  but   in  our   opinion  it   is  a  very  weak circumstance and  on the  basis of prints it be conclusively said that  these cannot  prints were  of the accused. It may also he  stated that only two foot prints were found whereas there are  two accused  which means there ought to have been four foot  prints. There  is no explanation whatsoever given

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by the  prosecution in  this behalf  as  also  there  is  no positive evidence  to indicate  as to whose foot prints they were. In  our opinion  the learned  trial Judge was wrong in accepting this as a conclusive circumstance to establish the complicity of the accused in the crime.      10.  Coming to  the next  circumstance namely, recovery of amulet  and rod  pursuant to  the statement  made by  the accused No.1 under Section 27 of the Indian Evidence Act, in our opinion  this recovery is again a weak piece of evidence because there  were no  special identity  marks on  both  of these art  viz circumstance, therefore, is not conclusive to prove the complicity of the accused.      11.  Coming to  the last  circumstance,  namely,  extra judicial confession  alleged to  have been  made by  accused No.1,  Balbir   Singh  tn   Pala  Singh  (P.W.7),  Municipal Commissioner, Fazilka  Municipal Committee,  it has  come on the record  that this witness had no special friendship with either of  the accused.  Pala Singh  (P.W.7) in his evidence had vaguely  stated that  after about  one and half month of the incident Balbir Singh, accused No.1 contacted him and he presence of  Sajjan Singh, accused No.2 confessed the crime. After through  the evidence of this witness we are unable to accept his  evidence as  trustworthy. It  may also be stated that as far as Sajjan Singh, accused No.2 is concerned there is no evident whatsoever to connect him with the crime.      12.  After going through the entire evidence the record we are  satisfied that  the impugned order of conviction and sentence is  based  on  mere  surmises  and  therefore,  the impugned order of conviction and sentence based against both the accused  is quashed and set aside and are acquitted. The appeal is allowed.      13. This  Court on 7.4.1992 ordered both the accused to be released  on bail  to the satisfaction of Sessions Judge, Ferozepur. If  the accused were released on bail persuant to the said  order, their bail bonds in stand cancelled. In the event they  were unable  to avail of that order, they be get at liberty forthwith if not required in any other case.