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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.