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PETITIONER: MAKHAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT27/07/1988

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) SHETTY, K.J. (J)

CITATION:  1988 AIR 1705            1988 SCR  Supl. (1) 613  1988 SCC  Supl.  526     JT 1988 (3)   126  1988 SCALE  (2)87

ACT:      Indian  Penal   Code,  1860:   ss.  201  &  302-Murder- Conviction based on circumstancial evidence-Held, charge not proved beyond doubt.      Evidence  Act,   1872:  ss.   24  &  27:  Extrajudicial confession-No corroborative  evidence-Held, very  weak piece of evidence-Dead  bodies-Recovery of  from open  field-Held, exclusive knowledge  cannot be  attributed to  the  accused- Consequently evidence  under s.  27 cannot be a circumstance against the accused.

HEADNOTE:      The appellant  was convicted  under s. 302 read with s. 201 IPC  for having  committed the  murder of his father and son. It  was  alleged,  as  motive  for  offence,  that  the appellant used  to quarrel  with his  father as  the  latter wanted to transfer his land in the name of his grandson, who used to live with him. PW. 2 had deposed that a day prior to Amawasya of  Chet 1985  at about  5 p.m. he had seen the two deceased persons  at the  Gurdwara when appellant went there and told  them that  he had  arranged  for  their  visit  to Amritsar, through the car seva truck coming that evening, to take the holy bath. He had met the appellant that very night at about  10 p.m.  On his  way to the fields and enquired of him why he too did not go to Amritsar. And, that when he did not see  the deceased  for sometime  he felt  suspicious and lodged a  report with  the police on 8th August, 1985, which became the  FIR. On  13th  August,  1985  the  appellant  is alleged to  have made  an extrajudicial confession to PW. 3, his sister’s  husband, who  is said  to  have  produced  him before the  police. On  15th August, 1985 a memorandum under s. 27  of the Evidence Act was recorded by the investigating officer at  the instance  of the  appellant and  later  dead bodies  were   recovered  from  field  and  identified.  The belongings of  the deceased were recovered from the Kotha in the fields,  where the  deceased  used  to  reside,  at  the instance of the appellant.      Based on  this evidence the appellant was convicted and sentenced to  death by  the Sessions  Court. That  order was upheld by the High Court. 614

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    Allowing the appeal by special leave, ^      HELD: The  charge against  the appellant cannot be said to have been proved beyond doubt. His conviction, therefore, cannot be sustained. [620]      Extra-judicial confession  is  a  very  weak  piece  of evidence and  is hardly  of any consequence. PW. 3 says that the appellant  told him  that as the police was after him he had come  and confessed  the fact  so that  he might  not be unnecessarily harassed.  There is  nothing to  indicate that this witness  was a  person having influence with the police or a  person or  some status  to protect  the appellant from harassment. There  is no  other corroborative evidence about the extra-judicial confession. [618D-E]       As  regards the  motive, the will was executed on 31st December, 1984  and it  is a figment of imagination that the murder was  committed apprehending  that the will was likely to be  changed. There  is also  no evidence to indicate that appellant was  not having  good relations with his father or that there  was ever any trouble between father and the son. [618F-G]       The evidence as to last seen also cannot be considered as a piece of circumstantial evidence against the appellant. The case  of the  appellant  was  that  his  brother-in-law, Manjit Singh,  had taken  the deceased  to his  place on the pretext that  appellant’s sister  was not  well. There is no evidence led  by the prosecution to negative this stand. May be, PW. 2 saw them with the appellant at the Gurdwara on the Amawasaya day  in Chet  but it  is significant that no other person connected  with the  deceased has  been  produced  to suggest that he was not seen there after. [619B-C]        As   regards  the   recovery  of   dead  bodies,  the investigation officer  himself admitted that after recording the statement  of PW.  3 he knew that the bodies were buried in  the   field  but   he  felt  that  information  was  not sufficient. The  said field  is an  open place surrounded by other fields.  It cannot be said that any one else could not have known  about  the  bodies  being  buried  there.  Since exclusive knowledge  to the  appellant cannot be attributed, the evidence  under s. 27 of the Evidence Act also cannot be said to be a circumstance against the appellant. [619E-G]      According to the medical opinion, bodies were recovered about three  months after  the death.  The bodies were found disintegrated.   It   was   difficult   to   identify.   The disintegration had gone to such an extent 615 that the bodies could not be removed and sent for postmortem and therefore  medical expert  was called  to  the  spot  to perform the  postmortem. The prosecution did not examine any one of  the relatives   or  the daughter  of deceased or his son-in-law to  identify the  dead  bodies  although  it  has appeared in   evidence   that   during   the  trial the said son-in-law was present in the Court. [617E-F]      As regards  recovery made  from  the  Kotha  where  the deceased used to reside, there is nothing significant. Their belonging were  found to  be there  and  on  that  basis  no inference could be drawn against the appellant. [61G-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 238 of 1988.      From the  Judgment and  Order  dated  4.8.1986  of  the Punjab and  Haryana High Court in Criminal Appeal No. 329-DB

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of 1986 and Murder Reference No. 2 of 1986.      Mrs. Urmila Kapoor and Ms. S. Janani for the Appellant.      R. S. Suri for the Respondent.      The Judgment of the Court was delivered by      OJA, J.  This appeal has come to this Court on grant of leave against  the conviction of the appellant under Section 302 and  sentence of  death and  also his  conviction  under Section  201   IPC  and   sentence  of   7  years   rigorous imprisonment and  fine of  Rs.200 awarded by Sessions Judge, Ferozepur and  confirmed by  the  High  Court  of  Punjab  & Haryana. The appellant is convicted for having committed the murder of  his father  and son.  It is alleged that deceased Banta Singh father of the present appellant owned 4-5 killas of land  situated at  Ferozepur Road  where a  tube well was also installed  by the  side  of  a  samll  kotha  where  he alongwith his grandson Seva Singh used to live away from the house where  the appellant  resided. It is alleged that Seva Singh was  crippled and  used to  move about  on a  tricycle Banta Singh  and Seva Singh used to go to Gurudwara of their village to render services.      Banta Singh  had only  one son  i.e. present  appellant whereas the appellant had a son Seva Singh the deceased from his first  wife (since  deceased). Later  he married  second time and  had two children, but she also died. At present he has the third wife and with her, he has two sons. 616      It was  alleged, as  motive for  the offence,  that the appellant used  to  quarrel  with  his  father  and  son  in connection with land owned by father as the latter wanted to transfer his land in the name of Seva Singh who used to live with the grandfather.      According to  the prosecution  a day prior to Amawasaya of Chet  1985  (May  1985)  when  Nihal  Singh  (PW  2)  was rendering services  with  Banta  Singh  and  Seva  Singh  at Gurudwara  at  about  5  p.m.  the  appellant  went  to  the Gurudwara and  told his father and son that in the evening a truck of  Car Seva  would come  from Fazilka  and that  they would go  to  Amritsar  to  take  the  holy  bath.  On  this representation, appellant  took Banta  Singh and  Seva Singh from the  Gurudwara. It  is alleged  that on the same day at about 10  p.m. when Nihal Singh was proceeding to his fields for guarding  his tubewell he met the accused on the way and found carrying  dang with  him. On being questioned by Nihal Singh as  to why  he was  there and  why he  did not  go  to Amritsar, the  appellant replied  that Banta  Singh and Seva Singh were  sent to  Amritsar by him in a truck of Car Seva. It is  further alleged that when Nihal Singh did not see for sometime Banta  Singh and  Seva Singh he felt suspicious and lodged a  report dated 10 October 1985 in the Police Station Mamdot. That became the FIR (Ex. PG).      S.I. Puran  Singh who  recorded the  statement of Nihal Singh raided  the house  of the  appellant who it is alleged was not  present. On  13 of  August 1985, it is alleged that the appellant made an extra judicial confession to one Amrik Singh and  Amrik Singh  produced the  appellant  before  the Police. On 15 August, 1985, a memorandum under Section 27 of the evidence  Act was  recorded by the Investigating officer at the  instance of  the appellant and later the dead bodies of Banta  Singh and  Seva Singh were recovered from a field. It is  also alleged  that at  that time  there was a Jhinjan crop standing  in the field. The dead bodies were identified by one  Channan Singh  who was a Panch witness. The tricycle and other  articles were  recovered from  the Kotha  at  the instance of the appellant.      On  the  basis  of  this  evidence,  the  courts  below

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convicted the  present appellant.  The  circumstances  which have been  found against  the appellant  are: (i)  Last seen with the deceased at the Gurudwara by. Nihal Sing (ii) extra judicial confession  made to Amrik Singh (iii) the statement under Section  27 leading  to discovery  of dead  bodies and (iv) recovery  of tricycle and other articles from the Kotha where the two deceased used to reside and the motive alleged against the appellant. 617      Learned counsel  for the  appellant contended  that  as against the  motive is concerned. the appellant at the trial had produced  a will  A executed  by  deceased  Banta  Singh wherein he has given away all his lands to the appellant. In the  cross  examination  of  prosecution  witnesses  it  was suggested that  .. that  his brother-in-law Manjit Singh was interested in  getting the  property transferred in his name or in  his wife’s  name.  It  was  also  argued  that  extra judicial confession  even otherwise  is a very weak piece of evidence and  in this  case it is strange that the appellant chose this  Amrik Singh to make an extra judicial confession and the  reasons suggested by Amrik Singh also do not appear to be  justifiable. Similarly  it was said that the recovery of dead  bodies and  the memorandum of the statement leading to the  discovery are of no consequence as even according to the Investigating  officer he  had learnt  from Amrik  Singh that the  dead bodies were in the field but he felt that the information he  had got  was not sufficient and therefore he recorded the  information under  Section  27  given  by  the appellant.      In our  opinion, these contentions are well founded and must be accepted as correct. The field where the bodies were recovered is  an open  place. It  is alleged  that there was Jhinjan crop  standing in  the field and prosecution has not led any  evidence to indicate as to who was in possession of the field  and who cultivated the crop which was standing at that time. We will discuss this part of the case in detail a little later.  It is very significant to note that according to the  medical opinion  bodies were  recovered about  three months after the death. The bodies were found disintegrated. It was difficult to identify. The disintegration has gone to such an extent that the bodies could not be removed and sent for postmortem  and therefore  medical expert  was called to the spot  to perform the postmortem. The prosecution did not examine any one of the relatives or the daughter of deceased Banta Singh  or the  son-in-law Manjit Singh to identify the dead bodies although it has appeared in evidence that during the trial Manjit Singh was present in the Court.      As to  the extra  judicial confession,  it may be noted that Nihal  Singh claims  to be  a person  who had  seen the deceased Banta  Singh and Seva Singh alongwith the appellant in the  month of  May in the Gurudwara. On the same night he again met the appellant and enquired about them. The witness also stated  that when  he did  not see the old man for some time, he  became suspicious  about the  missing of those two persons. This  witness in  order to justify his meeting with the appellant  at 10 P.M. On that day said that although his own land was at 618 a distance,  he had  taken some  land  on  lease  which  was adjacent to  the land  of the  appellant and so he had to go near the  appellant’s house. But in cross examination he had to admit that for the lease he had no document to support.      The prosecution  has suggested  that the  appellant did not search  for his  father, but according to the appellant, the deceased  had been  taken away  by Manjit Singh to their

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place on  the pretext  that Manjit  Singh’s  wife  i.e.  the appellant’s sister  was not  well and  this was  also put in cross examination to Nihal Singh. In the absence of evidence of Manjit  Singh, the  suggestion of the appellant cannot be brushed aside.      On 10  August, 1985  F.I.R. was  lodged by  Nihal Singh (PW-2)1 and  on 13.8.85  the appellant  went to  Amrik Singh (PW-3) to  make an  extra judicial  confession. Amrik  Singh says that  the appellant  told him  that as  the Police  was after him  he had  come and  confessed the  fact so  that he might not  be unnecessarily  harrased. There  is nothing  to indicate that  this Amrik  Singh was  a person  having  some influence with  the Police  or a  person of  some status  to protect  the  appellant  from  harrassment.  In  his  cross- examination he  admits that  he is  neither the Lumbardar or Sarpanch nor  a person who is frequently visiting the Police Station.  He  further  admits  that  when  he  produced  the appellant there was a crowd of 10 to 12 persons. There is no other  corroborative   evidence  about  the  extra  judicial confession. As  rightly conceded  by the learned counsel for the State  that extra  judicial confession  is a  very  weak piece of  evidence and  is hardly  of any  consequence.  The council however,  mainly relied  on motive,  the evidence of last seen,  the evidence  of recovery of dead bodies and the conduct of  the appellant  in not  making a report about the missing father and son.      As  regards   the  motive   the  will  in  question  is sufficient to  dislodge it.  An  attempt  was  made  by  the learned counsel for the State to suggest that even after the will the  appellant could have done away with the old man to avoid changing  the will.  But the  will was  executed on 31 December, 1984  and it  is a figment of imagination that the murder was committed apprehending that the will likely to be changed.  There   is  also  no  evidence  to  indicate  that appellant was  not having  good relations with his father or that there  was ever any trouble between father and the son. In fact  Nihal Singh  was asked  in cross  examination as to whether there was any dispute between the father and son? He had to admit that there was no dispute or difference.      As regards the evidence of last seen it was the case of appellant 619 that Manjit  Singh had  taken Banta  Singh and Seva Singh to his place  on the  pretext that the wife of Manjit Singh was not well.  There is  no evidence  led by  the prosecution to negative this  stand of  the appellant. Manjit Singh has not been examined  although it  has come in evidence that he was present in  the Court  when Nihal  Singh was  examined.  The sister of appellant was also not examined and in the absence of any such evidence to negative this stand of the appellant it could  not be  said that the prosecution- has proved that suggestion was  false. In  these circumstances, the presence of deceased  Banta Singh  and  Seva  Singh  along  with  the appellant at  the Gurudwara  on the  Amawasaya day  in  Chet could not  be said  to be the last seen before the murder in question. May be, Nihal Singh saw them on that day but it is significant that no other person connected with the deceased has  been   produced  to   suggest  that  he  was  not  seen thereafter. Therefore, the evidence as to last seen also can not be  considered as  a piece  of  circumstantial  evidence against the appellant.      Then we  are left with the recovery of the dead bodies. Investigating officer  S.I. Puran  Singh (PW  8) admitted in cross examination  that after  recording  the  statement  of Amrik Singh  he could  not know  the correct place where the

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bodies and  other articles  were kept  buried and concealed. This clearly  indicates that  he could  get some information from the  statement of  Amrik Singh.  As seen  earlier,  the field is  an open  place  surrounded  by  other  fields  and according to Nihal Singh the adjacent field is his own as he had taken  it on  lease and therefore it cannot be said that any one  else could  not have  known about  the bodies being buried in  the  field.  The  Investigating  officer  himself admitted that  after recording  the statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was not sufficient. It cannot therefore, be said that the place from where the bodies were recovered was such a  place about which knowledge could only be attributed to  the   appellant  and  none  alse.  Since  the  exclusive knowledge  to   the  appellant  cannot  be  attributed,  the evidence under  Section 27  also cannot  be  said  to  be  a circumstances against the appellant.      As regards  the recovery  made from the Kotha where the deceased Banta  Singh and Seva Singh used to reside there is nothing significant.  The tricycle  and other  belongings of the deceased  were bound  to be  there and  on that basis no inference could be drawn against the appellant. 620      In view  of all these circumstances, the charge against the appellant  cannot be  said to  have been  proved  beyond doubt and  the conviction  of the appellant Therefore cannot be sustained.  The appeal  is therefore  allowed. Conviction and sentence  passed against the appellant are set aside. He is in  custody. He be set at liberty forthwith if not wanted in connection with any other case. P.S.S.                                  Appeal allowed. 621