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PETITIONER: BALWINDER SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT09/11/1995

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) SEN, S.C. (J)

CITATION:  1996 AIR  607            1995 SCC  Supl.  (4) 259  JT 1995 (8)    81        1995 SCALE  (6)261

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T DR. ANAND. J.      The appellant  on  conviction  by  the  learned  Judge, Special Court,  Patiala for  offences under  Section 302/201 IPC was sentenced to suffer imprisonment for life and to pay a fine  of Rs.  2,000/- and  in default to suffer further RI for two  years for  the offence  under Section 302 IPC and 2 years RI  for the  offence under  Section 201  IPC. Both the sentences  were,  however,  directed  to  run  concurrently. Through this  appeal  under  Section  14  of  the  Terrorist Affected Areas (Special Courts) Act, 1984, he has questioned his conviction and sentence.      The prosecution case in brief is that the appellant and Smt. Tajinder  Kaur, PW-2  were married about 10 years prior to the  date of  occurrence which  allegedly took  place  on 18.3.1984. Two  daughters pinky and Rozy aged about 6-1/2 or 7 years  and 2-1/2  years respectively were born out of this wedlock. Ajmer  Kaur, mother of the appellant as well as the appellant were  unhappy with  Tejinder Kaur, PW-2 for giving birth to  daughters only and both she and the appellant used to quarrel  with Tejinder Kaur on that account, who was also given beating  by the  appellant on  certain  occasions.  On 17.3.1984 there  was one such quarrel. The appellant and his mother Ajmer Kaur conspired to put an end to the life of the two daughters  and in  pursuance thereof  on March 18, 1984, the appellant  took away  both the daughters stating to PW-2 that he  would return  only after  killing them.  He reached bus-stand Patiala where he met Balwant Kaur, PW-4 and on her enquiry about  the welfare  of the children told her that he was taking away his daughters to kill them. Balwant Kaur PW- 4 on  hearing this  went to  the house  of the appellant and informed Tejinder Kaur PW-2 about it. The appellant took the children to  Ludhiana to  the house  of his  sister Mohinder Kaur, DW-1  and after staying there for a few hours left the house saying  that he was going to Rara Saheb. On 19.3.1984,

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Dr. Jaswant Singh PW-6 found the dead body of a female child in the canal at about 12 or 12.30 p.m. when he went there to ease himself.  The dead  body was  taken out  but no one who reached there from the adjoining villages could identify it. At about 4.30 or 5.00 p.m., the appellant also reached there and identified  the dead  body as  of his own child. He took the dead  body of  Rozy and  cremated her near Gurdwara Rara Saheb. The  other daughter  Pinky, however,  was  not  found either dead  or alive. Satya Walia PW-3, a social worker and a neighbour  of the  appellant and  Tejinder  Kaur  PW-2  on coming to  know about  the murders  from the  neighbours and from an  extra-judicial confession  made by the appellant to her that  he had  murdered the  girls and  cremated the dead body of Rozy made a written complaint, Ex. PB, to the police on 23.3.1984  and on  its basis the first information report was registered.  The investigation  of the case was taken in hand by ASI Iqbal Singh PW-9 who visited the village as well as the  site of  cremation.  During  the  investigation  the police took  into possession  some bones  and steel  bangles from the  place where  the deadbody  of Rozy was cremated on the basis  of a  disclosure statement made by the appellant. After completion  of the  ivestigation,  challan  was  filed against both  the appellant  and his mother Smt. Ajmer Kaur. Both of them were charged for an offence under Section 120-B IPC, for  conspiring to commit the murder of Rozy and Pinky. As already  noticed the  appellant was also charged with the offences under  Section 302/201 IPC for commiting the murder of Rozy  and cremating  her dead  body to screen himself. He was also  charged for  an offence  under Section 302 IPC for the murder  of Pinky.  The Trial  Court after  recording the evidence found  that the  charge of conspiracy under Section 120-B IPC  was not  established and  consequently  both  the appellant and  Ajmer Kaur were acquitted of the said charge. The Trial  Court also  found that  the  charge  against  the appellant  for   an  offence   under  Section  302  IPC  for committing the murder of Pinky had also not been established and therefore  acquitted the  appellant of  the said  charge while convicting  and sentencing  him for the offences under Section 302/201  IPC for  the murder of Rozy. The appellant, in his  statement under  Section 303  Cr.P.C. had denied the prosecution allegations  and stated  that his wife was under the influence of Satya Walia PW-3 who was leading her estray and since  the parents of his wife, Tejinder Kaur, PW-2 were greedy she  used to  earn money and handover the same to her parents. He  had admonished  his wife  for going  estray and keeping  company  with  Satya  Walia  PW3  on  a  number  of occasions. PW-2  had gone  to her  parents  house  at  Sunam leaving the  children behind.  While  he  had  gone  to  the market, the children left the house on their own and when he and his  mother Ajmer  Kaur after  search did not find them, they sent a telegram to Tejinder Kaur PW2 and Sham Singh, on March 22, 1984. That with the connivance of Satya Walia, PW- 3 he was falsely implicated in the case.      There is  no direct  evidence in  this case in sofar as the murder of Rozy is concerned. The prosecution relied upon the following  circumstances to  connect the  appellant with the crime in the Trial Court : (i)  The evidence  of "last  seen  together"  based  on  the evidence of  PW-2, Tejinder  Kaur, Balwant Kaur, PW-4 and of Mohinder Singh,  PW-5 ;  (ii) Extra-judicial confession made by the  appellant to PW-3 Satya Walia. (iii) the recovery of dead body  of Rozy  from the  canal and  its  claim  by  the appellant  and   (iv)  disclosure   statement  made  by  the appellant leading  to the  recovery of bones of a child from the place  where the appellant had cremated the dead body of

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Rozy.      In a  case based  on circumstancial evidence, it is now well  settled   that  the   circumstances  from   which  the conclusion of  guilt is  to be  drawn should be fully proved and those  circumstances must  be conclusive  in  nature  to connect the  accused with  the crime.  All the  links in the chain of  events must  be established  beyond  a  reasonable doubt and the established circumstances should be consistent only with  the hypothesis  of the  guilt of  the accused and totally inconsistent  with his innocence. In a case based on circumstancial evidence  the Court has to be on its guard to avoid the  danger of allowing suspicion to take the place of legal proof  and has  to be  watchful to avoid the danger of being swayed  by emotional considerations,, howsoever strong they may  be, to  take the  place of  proof. It  is  in  the context of  the above  settled  principles,  that  we  shall analyse the evidence led by the prosecution. (i) Last seen together      PW-2 Tejinder Kaur, wife of the appellant deposed about the quarrels  between her  on the one side and the appellant and his  mother on the other side on account of the birth of the daughters  only and  went on  to state that on March 18, 1984 the  appellant and his mother conspired to do away with her two  daughters, Rozy  and Pinky, because they considered the birth of the females to be a curse. She deposed that the appellant took  away both  the daughters at about 12.30 p.m. or 1.00  p.m. on  that day stating that he would return only after killing them. Soon thereafter, Balwant Kaur PW-4, went to the  house of  PW-2 at  about 2.00 p.m. and told her that the appellant  had met her at the bus stand and disclosed to her, on  her enquiry  about the  well being of the children, that he was going to kill the daughters. On 19th March, 1984 her mother-in-law,  Ajmer Kaur  informed her  at about  6.30 a.m. that her daughters had been killed by the appellant and thrown in  the  canal.  On  getting  this  information  PW-2 proceeded towards  her parents  house at  Sunam but  she was brought back  by her  mother-in-law Ajmer Kaur from near the Modi College  on a  rickshaw. Both  of them then went out in "search" of  the children.  The appellant  returned  to  the house on  20th March, 1984 and on her enquiry from him about the children,  he disclosed  to her  that he had killed both the daughters and had cremated Rozy behind the Gurdwara Rara Saheb and that the dead body of Pinky had not been found. On hearing this  news, she started crying. Satya Walia, PW-3 on hearing about  the murders  came to  her house and asked the appellant about  the children  who disclosed  to her that he had killed  them. During her cross-examination PW-2 admitted that she  had never earlier complained about the quarrels or the beatings given to her by the appellant and his mother to anyone except  to Satya Walia PW-3 but conceded that she did not disclose  to Satya  Walia PW-3  either that the cause of quarrels was  on account  of the  birth of daughters. In her statement recorded  under Section 161 Cr.P.C. also the cause of quarrel  had not  been stated  by her  and she  was  duly confronted with  it. PW-2 also admitted that neither on 18th March, 1984  nor on  19th March,  1984 did she inform anyone about the  incident and  even though Satya Walia had met her on 19th  March she did not tell her about it and that it was only on  20th March,  1984 that  she had  disclosed to Satya Walia PW-3  for the  first time as to what had transpired on 18th March,  1984 and  the information  she had recived from her mother-in-law  on the  morning of 19.3.1984. She did not report the  matter to  the  police  nor  even  informed  her parents about the murder of the children till 23.3.1984. Her statement was  recorded by  the police  only on  24th March,

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1984. She  admitted that she had visited Gurdwara Rara Saheb alongwith her mother-in-law on 20.3.1984 and had found ashes and bones there.      The prosecution  sought corroboration  of the  evidence relating to  the taking  away of  the two  daughters by  the appellant as  deposed to  by Tejinder  Kaur  PW-2  from  the statements of  Balwant Kaur,  PW-4 and  Mohinder Singh PW-5. The  Trial  Court  did  not  place  any  reliance  upon  the statement of  Balwant Kaur  PW-4 and in our opinion rightly. Her statement  does not  inspire any confidence. Though PW-2 in her  statement deposed  that PW-4 was her mother’s sister and had  come to  her straight from the bus stand on hearing from the  appellant that he was going to kill the daughters, PW-4 Balwant  Kaur in her cross-examination stated "Tejinder Kaur is  not related  to me as such. My purpose of visit was to see  Tejinder  Kaur  as  directed  by  her  mother."  The prosecution, however, did not examine the mother of Tejinder Kaur to  elicit "what  direction" she  had given to PW-4 and why. This  material contradiction  between her testimony and the  statement   of   PW-2   Tejinder   Kaur   besides   the improbability of  the appellant  making any statement to her renders her evidence untrustworthy.      So far  as the  evidence of  PW-5 Mohinder  Singh,  the father-in-law of  the sister  of the appellant is concerned, the Trial  Court found  it to  afford corroboration  to  the statement of  PW-2. According  to  him,  the  appellant  had visited his  house on  18.3.84 at  about 4.00  or 4.30  p.m. alongwith his  daughters Pinky and Rozy and after taking tea had left  the house informing him that he was going to visit Rara Saheb.  During his  cross-examination, PW-5  denied the suggestion that  after marriage,  his son  Amrik  Singh  was risiding separately from him and that he was not having good relations with his daughter-in-law, sister of the appellant.      This  is   the  entire  evidence  relied  upon  by  the prosecution in support of the first circumstance.      There was  a delay  of 5  days  in  lodging  the  first information report  Ex.  PB.  On  her  own  admission,  PW-2 Tejinder Kaur  was told  by the  appellant while taking away the girls  on 18.3.1984 at about noon time that he was going to kill  them. She, however, kept quiet. She did not protest let alone  raise any  hue and  cry  so  as  to  prevent  the appellant from  taking away  the daughters for killing them. She did not even disclose to anyone as to what the appellant had told  her even  though the appellant did not return home at night.  On 19th  March she learnt at about 6.30 a.m. from her mother-in-law  Ajmer Kaur,  a  co-conspirator  with  her husband, that the appellant had killed the two daughters and thrown them  in the canal. She still kept quiet and not only did she  not raise  any hue or cry she did not inform anyone including  her   parents  and  Satya  Walia.  PW3,  who  had admittedly met her on that day about the incident. This  conduct is  rather unnatural  for a  mother, keeping in  view the  earlier quarrels  and the declarations made by the appellant of his intention to kill the daughters on   18.3.1984   itself.   PW-2   also   admitted   in   her crossexamination that  she alongwith her mother-in-law Ajmer Kaur had  gone out  in search  of the  children  to  various places including  Ragho Majra,  where the maternal uncles of the appellant  were residing.  Why would  Ajmer Kaur go with her, to  search for the children, when she already knew that the appellant  had killed them and thrown the dead bodies in the canal  is not  at all understandable? From the statement of PW-3  as contained  in the  FIR it  emerges that when she came out of the house of the appellant, she had met PW-2 and Ajmer Kaur  coming in  a rickshaw and that both of them were

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weeping at  that time.  This conduct  of Ajmer Kaur does not fit in with the prosecution case. PW2 also admitted that she alongwith her  mother-in-law had visited Gurdwara Rara Saheb on 20th  March, 1984  itself and had seen the mortal remains of her  child and  that the  appellant had  also told her on returning home  on 20.3.1984  that he  had killed the girls, but still she did not lodge any complaint with the police or inform anyone  about it.  PW2 could  give no explanation for her silence.  The evidence  of  PW-5,  Mohinder  Singh,  the father-in-law of  the  sister  of  the  appellant  does  not inspire confidence.  DW-1,  Mohinder  Kaur,  wife  of  Amrik Singh, daughter-in-law  of PW-5  asserted in  her  statement that the appellant had never visited her house in March 1984 alongwith his  children and  that when  she came  to know on March 23, 1984 that the children of her brother were missing from their house, she had visited his house. She stated that her father-in-law  was residing separately from her and that she and  her husband   had  separated from  him  within  six months of  their marriage. She and her husband were not even on visiting  terms with  her father-in-law. These assertions of DW1  have remained  unchallenged.  These  was,  thus,  no occasion for the appellant to go to the house of the father- in-law of  her sister,  with whom  admittedly his sister was having strained relations and not visiting his sister at all on that  day. In  the face  of the  statement of  DW-1,  the correctness of  the statement of PW-5 becomes doubtful. PW-5 appears  to   have  come   forward  to  depose  against  the appellant, who  is the  only brother  of his daughter of his daughter-in-law DW-1  Mohinder Kaur, posslbly because of his strained relations with her. It appears to us that the delay in lodging  the first information report was utilised by the complainant  party   in  giving   twist  to  the  facts  and introducing interested  witnesses like  PW-4 and PW-5 in the case. We are not impressed by their statements and find that the same  can  afford  no  corroboration  to  the  otherwise untrustworthy testimony  of Tejinder  Kaur, PW-2.  The Trial Court erred in relying upon the statements of PW-2 and PW-5, ignoring  the   basic  infirmities  in  their  evidence  and overlooking the  delay  in  the  lodging  of  the  FIR.  The prosecution had  failed to  establish that the appellant had taken away  his two  daughters on  18th March,  1984 in  the manner alleged by it. In our opinion the evidence led by the prosecution to  establish the  circumstance  of  "last  seen together" has  not  been  established  beyond  a  reasonable doubt. (ii) Extra-judicial confession:      An extra-judicial  confession by  its  very  nature  is rather a  weak type  of evidence  and requires  appreciation with great  deal of care and caution. Where an extrajudicial confession is  surrounded by  suspicious  circumstances  its credibility becomes  doubtful and  it loses  its importance. The  courts   generally  look   for   independent   reliable corroboration before  placing any  reliance  upon  an  extra judicial confession.      The  Trial   Court  relied   upon  the   extra-judicial confession allegedly  made by  the appellant  to PW-3  Satya Walia to the effect that he had killed his daughters and had cremated the  dead body  of Rozy,  to connect  the appellant with the  crime. It  found corroboration of the statement of PW-3 from  the evidence relating to the recovery of the dead body from  the canal  and the disclosure statement allegedly made by  the appellant  leading to the recovery of the bones from the  place behind  Gurdwara  Rara  Saheb,  besides  the statement of PW2.      PW-3 claims  to be  the Pardhan  of Mohalla Preet Nagar

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and states  that she  is a  social worker.  According to her deposition,  the   appellant  had  made  an  extra  judicial confession to  her when  she visited his house on 20.3.84 on learning from  the neighbours  that the appellant had killed his two  daughters. PW-3, however, lodged the complaint with the police  only on  23rd March,  1984 when not only had she learnt from the neighbours about the murder of the two girls by the appellant but the appellant had himself made an extra judicial confession  to her  on 20.3.84 itself. PW3 admitted in her  cross-examination that  she was  with the  police in connection with the case of Darshana from 21st March to 23rd March, 1984 but could offer no explanation as to why she did not lodge  the complaint  with the police till 23.3.84. This delay also  probabalises  the  defence  version  that  after 22.3.84, When  PW2 and  Sham Singh  and others  arrived from Sunam on  getting  the  telegraphic  information  about  the missing children, they falsely implicated the appellant with the help of PW3.      Again, according  to PW-3,  when she  met PW-2  and her mother-in-law on  coming out  of the  house of the appellant after he  had made  an  extra-judicial  confession  to  her, Tejinder Kaur  PW-2 started  crying on  seeing her while her mother-in-law Ajmer  Kaur kept  silent. This  is an apparent improvement made  by her at the trial since in her statement in the  FIR Ex.  PB, with which she was duly confronted, she had stated  that both  Tejinder Kaur  and  Ajmer  Kaur  were weeping and  crying. When  asked to explain this improvement at the  trial, PW-3 stated that she had "nothing to say". In view of  the hostility which the appellant had with PW3, for leading his  wife estray,  we find  it rather  difficult  to accept that the appellant could have made any extra-judicial confession to  her. The  manner in  which the extra-judicial confession is  alleged to  have been made and the silence of PW-3 for  three days  in disclosing  the same to the police, even though  she had admittedly been with the police between 21st and 23rd March, 1984 renders it unsafe to rely upon her statement. This un-explained long delay in lodging the first information report  Ex.  PB  detracts  materially  from  the reliability of  the prosecution  case  in  general  and  the testimony of  PW3 in  particular. We  find that  the alleged extra-judicial  confession   is  surrounded   by  suspicious circumstance and  the  prosecution  has  not  been  able  to establish that  the appellant  had made  any  extra-judicial confession  to   PW-3  Satya   Walia  and   therefore   this circumstance remains unestablished. (iii) Recovery of a dead body and its claim by the appellant as that of Rozy      Though with the ruling out of the circumstance relating to the  "last seen  together "  and "  the making  of extra- judicial confession",  as not  having been  established, the chain of  circumstantial evidence  snaps so badly that it is not necessary  to consider  any other  circumstance, but  we find that  even  the  third  circumstance  relating  to  the recovery of  the dead  body, and  it being  claimed  by  the appellant and  its subsequent  cremation by him has remained unestablished.      The two  witnesses relied  upon by  the prosecution  in support of  the 3rd  circumstance are PW-6, Dr.Jaswant Singh and PW-7, Naib Singh. According to PW-6, on 19th March, 1984 when he  had gone near the canal to case himself, he noticed dead body  of a  female child in the canal. Tej Singh Panch, Santokh Singh  and Naib  singh also arrived at the spot, and the dead  body was taken out of the canal. None out of those who had,  by that time assembled at the spot, could identify the child  whose dead  body was  recovered. The chowkidar of

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the  village   was  sent   to  the  adjoining  villages  for ascertaining the  identify of the child. However, no one was able to  identify the  child. The appellant went to the spot at about  5.00 p.m. and stated that "his children had fallen in the  canal and  he was  in search of them." He identified the dead  body as  that of  his daughter  Rozy. He was given custody of  the dead  body. He  wanted to  take the child to Patiala but  stated that  he was  a poor  person and  had no money. Persons who were present there contributed some money and gave  it to  him to  take the dead body to Patiala. That later on  he came to know from some "other persons" that the appellant had  cremated the  dead body  near the drain. Naib Singh PW-7,  who has  a shop  situated on  the canal bank of Rara Saheb  spoke on the same lines as PW-6. He deposed that at about 12.00  noon or 12.30 p.m. he came to know about the presence of  the dead  body of  a child  The dead  body  was recovered from  the canal.  No one  was able to identify the dead body  till the  appellant arrived  there at  about 5.00 p.m. and  identified the  body to  be that of his child. The child was  handed over  to the appellant, who was also given some money  on his stating that he was a poor person and did not have any money to take the dead body to Patiala.      Admittedly, neither  PW-6 nor  PW-7 knew  the appellant from before.  No identification  parade was held to identify the appellant as the person who had approached PW-6 and PW-7 and had claimed the dead body to be that of his daughter. It was  incumbent   upon  the   prosecution  to  have  held  an identification  parade  for  proper  identification  of  the appellant by  these two  witnesses. Not  only did it fail to hold an  identification  parade  but  the  prosecution  also failed to  give any  explanation  for  not  holding  such  a parade. The  identification of the appellant by PW-6 and PW- 7, as  the person  who had  claimed the dead body, in court, about  9  months  later,  in  the  absence  of  any  earlier identification, loses  much of  its importance and is in any event not  sufficient to hold that the appellant had claimed the dead  body to  be that of his child. Thus, considered in the  light  of  the  above  discussion,  we  find  that  the prosecution has  not been able to establish the circumstance relating to  the recovery  of the  dead  body  or  it  being claimed by  the appellant to be that of his child. It cannot be said  with any  amount of  certainty that  the dead  body found by  PW-6 and  PW-7  was  that  of  Rozy  or  that  the appellant had claimed the dead body to be that of his child. The evidence is of a doubtful nature and has to be ruled out of consideration to connect the appellant with the crime. (iv) Disclosure statement :      The last circumstance relied upon by the prosecution is the disclosure  statement of  the appellant,  leading to the recovery of the bones of the deceased. The Trial Court ruled out  of  consideration  the  disclosure  statement  and  the consequent recovery  of the  bones and placed no reliance on it. The  Trial Court  opined "At the outset it may be stated that in  this case  no importance  can be  attached  to  the disclosure statement  made by Balwinder Singh accused and in consequence thereof  recovery of the bones. Tejinder Kaur PW had already  visited the  place of cremation much before the case was  registered. Be  that as it may, there is no reason to doubt  that bones  were taken  into possession  from  the alleged place  of cremation  which  is  admittedly  an  open place." We agree with the trial court.      That apart, the prosecution evidence is not specific as to whether  even the  bones which  were recovered  from  the place of  cremation behind Gurdwara Rara Saheb were those of Rozy. According  to PW-6  and PW-7, the age of the dead body

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of the  child which was recovered from the canal was about 4 or 4-1/2  years. According  to the  evidence of Dr. Surinder Behal,  PW-1,   the  bones   which  were  sent  to  him  for examination were  of a  child aged  between 3 to 5 years and the  identity   of  the  sex  of  the  child  could  not  be established from  those bones. From the prosecution evidence including the statement of PW-2, the age of Rozy was about 2 or 2-1/2  years. It  cannot  therefore,  be  said  that  the recovered bones  have been  connected positively to be those of Rozy.  Moreover, according  to PW-6  and PW-7,  the child whose body  was recovered from the canal had red/pink rubber bangles on  its wrist  but according  to PW-2 when Rozy left home in  the company of the appellant, she was wearing steel bengles. The  bangles which were recovered from the place of cermation alongwith  the bones  were also  found to be steel bangles.  Thus,  it  cannot  be  said  with  any  amount  of certainty that  the bones  which were  taken into possession pursuant to  the disclosure  statement allegedly made by the appellant were  that of  Rozy at  all. In this connection it also deserves  to be  noticed that  Sham  Singh  and  Satpal before whom the disclosure statement, Ex. PE, was alleged to have been  made by the appellant, as per the evidence of ASI Iqbal Singh  PW were  not examined  at the  trial. Even  the witnesses to the recovery of the bones were withheld and not produced at  the trial.  These infirmities,  create a  doubt about the  correctness of the prosecution case regarding the making of  any disclosure  statement by  the appellant. This circumstance also,  therefore, has  not been  established by the prosecution.      From the  above discussion  it emerges that none of the four circumstances relied upon by the prosecution to connect the appellant  with the  crime have  been established by the prosecution. On  an independent appraisal of the evidence on the record,  we have  unhesitatingly come  to the conclusion that the  Trial Court  was not  justified in  convicting and sentencing the  appellant  for  the  offence  under  Section 302/201 IPC.  The finding  of  guilt  recorded  against  the appellant by the Trial Court is not sustainable in law. From the very opening sentence of the judgment of the Trial Court which reads  "Birth of  a female child is still considered a curse in  the Indian  society. The present case is the worst type of  example where  father is alleged to have caused the murder of  his two  daughters who  were aged  between 5 to 7 years." it  appears to us that the Trial Court got swayed by emotional considerations and allowed suspicion, surmises and conjectures to take the place of legal proof.      This appeal  is consequently allowed and the conviction and sentence  of the  appellant is  hereby  set  aside.  The appellant is  on bail  by virtue  of an  order of this Court dated 25.4.1989. His bail bonds shall stand discharged.