http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

CASE NO.:

Appeal (crl.) 1721 of 1996

PETITIONER:

State of Haryana

RESPONDENT:

Jagbir Singh and Anr.

DATE OF JUDGMENT: 26/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NOS.1237-1238/2003

(Arising out of SLP (Crl.) Nos. 1076-1077/1996]

----

ARIJIT PASAYAT, J.

Leave granted in SLP (Crl.) Nos. 1076-1077/1996.

Questioning legality of judgment rendered by a Division Bench of

the Punjab and Haryana High Court, Criminal Appeal No. 1721 of 1996 has

been filed by the State of Haryana. The other two appeals are by the

informant. An innocent child of about 4 years was the victim of

unnatural death. According to the prosecution, respondents caused his

homicidal death after kidnapping him. The motive for the killing was

stated to be intended demand of ransom for his release. The Sessions

Judge, Bhiwani found the respondent-accused Jagbir Singh to be guilty of

offences punishable under Section 302 IPC. He was also convicted for

offence punishable under Sections 364, 201 and 384 of the Indian Penal

Code, 1860 (in short the 'IPC'). For the offence punishable under

Section 302 IPC he was awarded death sentence and for other offences

period of sentence already undergone in custody. Accused Umed Singh was

convicted for offences punishable under Section 201 IPC and was directed

to suffer RI for 3 years and fine. Both the accused persons preferred

appeal before the High Court. The High Court by the impugned judgment

found them not guilty.

According to the prosecution, death of the victim was on

6.9.1991 and passing through a chain of incidents and happenings,

finally the First Information Report was lodged on 9.9.1991. In between,

a ransom letter meant for somebody else was found in torn condition and

that led to suspicion against the accused-respondents. Accused-Jagbir

is related to Daya Nand (PW7), a teacher. It appears that on account of

several circumstances, the villagers thought that accused-Jagbir was

responsible for disappearance of the child. He was given time to

produce the child. A ransom note was found to be in the hand writing of

accused-Jagbir and he is stated to have pointed out the place where the

dead body was buried in his house and also on the basis of his

information certain articles were recovered. It was also the version

of PW7 that at a point of time, accused-Jagbir was taken to the police

with the material indicating his complicity in the alleged incident. But

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

the police did not arrest him and left him off. It was pointed out

there was grave doubt about the manner in which the investigation was

being conducted, and alleged inaction of police. On completion of

investigation charge sheet was placed and accused faced trial. The case

before the Trial Court was based on circumstantial evidence. The

circumstances which according to the prosecution established guilt of

the accused are as follows:

(1) The ransom notes were in the handwriting of the accused-

Jagbir Singh;

(2) There was extra-judicial confession before PW-10 and;

(3) Recovery of dead body on the basis of information given by

the accused while in custody in terms of Section 27 of the Evidence Act,

1872 (for short 'the Evidence Act').

The Trial Court found the above circumstances sufficient for

establishing guilt of the accused persons for the offences alleged. In

appeal, the High Court upset the findings and held the accused persons

not guilty.

In support of the appeals, learned counsel for the State and the

informant submitted that the High Court's approach was erroneous. It

failed to notice that the police was adopting a partisan role and the

evidence of witnesses brought on record was in a particular line. The

investigation was done otherwise and the police did not place adequate

material before the Court. It was pointed out that the ransom note has

been erroneously discarded by the High Court. It should have noticed

that the accused-Jagbir accepted the handwriting to be his and,

therefore, the handwriting expert's report was available to be used

against the accused; particularly when the handwriting was given

voluntarily for comparison. Further the extra judicial confession

before PW-10 has been discarded without any reasonable basis. Finally,

when the dead body was recovered from the house of the accused on the

basis of the information given while in custody, the High Court should

have relied upon the same.

There was no appearance for the respondents-accused when the

matter was taken up for hearing, though the respondents had appeared

through their counsel, and the cause list indicated name of the counsel.

It is unfortunate that an innocent child has lost his life but

the crucial question is whether the accused persons were responsible for

his death and the prosecution was able to prove its claims beyond

reasonable doubt. As stated earlier the case rests on circumstantial

evidence.

It has been consistently laid down by this Court that where a case

rests squarely on circumstantial evidence, the inference of guilt can be

justified only when all the incriminating facts and circumstances are

found to be incompatible with the innocence of the accused or the guilt

of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC

1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316);

Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P.

v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of

Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR

1989 SC 1890). The circumstances from which an inference as to the guilt

of the accused is drawn have to be proved beyond reasonable doubt and

have to be shown to be closely connected with the principal fact sought

to be inferred from those circumstances. In Bhagat Ram v. State of

Punjab (AIR 1954 SC 621), it was laid down that where the case depends

upon the conclusion drawn from circumstances the cumulative effect of

the circumstances must be such as to negative the innocence of the

accused and bring the offences home beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C.

Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

been observed thus:

"In a case based on circumstantial evidence,

the settled law is that the circumstances from which

the conclusion of guilt is drawn should be fully

proved and such circumstances must be conclusive in

nature. Moreover, all the circumstances should be

complete and there should be no gap left in the chain

of evidence. Further the proved circumstances must be

consistent only with the hypothesis of the guilt of

the accused and totally inconsistent with his

innocence....".

In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79),

it was laid down that when a case rests upon circumstantial evidence,

such evidence must satisfy the following tests:

"(1) the circumstances from which an inference of

guilt is sought to be drawn, must be cogently and

firmly established;

(2) those circumstances should be of a definite

tendency unerringly pointing towards guilt of the

accused;

(3) the circumstances, taken cumulatively should

form a chain so complete that there is no escape from

the conclusion that within all human probability the

crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain

conviction must be complete and incapable of

explanation of any other hypothesis than that of the

guilt of the accused and such evidence should not only

be consistent with the guilt of the accused but should

be inconsistent with his innocence.

In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it

was pointed out that great care must be taken in evaluating

circumstantial evidence and if the evidence relied on is reasonably

capable of two inferences, the one in favour of the accused must be

accepted. It was also pointed out that the circumstances relied upon

must be found to have been fully established and the cumulative effect

of all the facts so established must be consistent only with the

hypothesis of guilt.

Sir Alfred Wills in his admirable book "Wills' Circumstantial

Evidence" (Chapter VI) lays down the following rules specially to be

observed in the case of circumstantial evidence: (1) the facts alleged

as the basis of any legal inference must be clearly proved and beyond

reasonable doubt connected with the factum probandum; (2) the burden of

proof is always on the party who asserts the existence of any fact,

which infers legal accountability; (3) in all cases, whether of direct

or circumstantial evidence the best evidence must be adduced which the

nature of the case admits; (4) in order to justify the inference of

guilt, the inculpatory facts must be incompatible with the innocence of

the accused and incapable of explanation, upon any other reasonable

hypothesis than that of his guilt, (5) if there be any reasonable doubt

of the guilt of the accused, he is entitled as of right to be

acquitted".

There is no doubt that conviction can be based solely on

circumstantial evidence but it should be tested by the touch-stone of

law relating to circumstantial evidence laid down by the this Court as

far back as in 1952.

In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh,

(AIR 1952 SC 343), wherein it was observed thus:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

"It is well to remember that in cases where

the evidence is of a circumstantial nature, the

circumstances from which the conclusion of guilt is

to be drawn should be in the first instance be fully

established and all the facts so established should

be consistent only with the hypothesis of the guilt

of the accused. Again, the circumstances should be

of a conclusive nature and tendency and they should

be such as to exclude every hypothesis but the one

proposed to be proved. In other words, there must be

a chain of evidence so far complete as not to leave

any reasonable ground for a conclusion consistent

with the innocence of the accused and it must be such

as to show that within all human probability the act

must have been done by the accused."

A reference may be made to a later decision in Sharad Birdhichand

Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while

dealing with circumstantial evidence, it has been held that onus was on

the prosecution to prove that the chain is complete and the infirmity of

lacuna in prosecution cannot be cured by false defence or plea. The

conditions precedent in the words of this Court, before conviction could

be based on circumstantial evidence, must be fully established. They

are:

(1) the circumstances from which the conclusion of

guilt is to be drawn should be fully established. The

circumstances concerned 'must' or 'should' and not

'may be' established;

(2) the facts so established should be consistent

only with the hypothesis of the guilt of the accused,

that is to say, they should not be explainable on any

other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive

nature and tendency;

(4) they should exclude every possible hypothesis

except the one to be proved; and

(5) there must be a chain of evidence so complete as

not to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must

show that in all human probability the act must have

been done by the accused.

These aspects were recently highlighted in State of Rajasthan v.

Rajaram (2003 AIR SCW 4097)

We shall examine the circumstances highlighted. So far as ransom

notes are concerned, prosecution sought to rely upon the report given by

the handwriting expert. It appears that the accused was taken before

Addl. Chief Judicial Magistrate, Bhiwani. According to him, on

10.9.1991 the accused was brought before him in custody for giving his

specimen signature under Section 73 of the Evidence Act. It was noticed

by this Court in State of Uttar Pradesh v. Ram Babu Misra AIR 1980 SC

791) that the Chief Judicial Magistrate has no power to direct the

accused to give his specimen signature for comparison during

investigation. Section 73 of the Evidence Act reads as follows:

"Section 73- Comparison of signature, writing or

seal with others admitted or proved: In order to

ascertain whether a signature, writing, or seal is

that of the person by whom it purports to have been

written or made, any signature, writing, or seal

admitted or proved to the satisfaction of the Court

to have been written or made by that person may be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

compared with the one which is to be proved, although

that signature, writing, or seal has not been

produced or proved for any other purpose.

The Court may direct any person present in

court to write any words or figures for the purpose

of enabling the Court to compare the words or figures

so written with any words or figures alleged to have

been written by such person.

This section also applies, with any necessary

modifications, to finger-impressions".

The second paragraph of Section 73 enables the Court to direct any

person present in the Court to give specimen writings 'for the purpose

of enabling the Court to compare' such writings with writings alleged to

have been written by such person. The clear implication of the words

'for the purpose of enabling the Court to compare' is that there is some

proceeding before the Court in which or as a consequence of which it

might be necessary for the Court to compare such writings. The

direction is to be given for the purpose of enabling the Court to

compare and not for the purpose of enabling the investigating or other

agency 'to compare'. If the case is still under investigation there is

no present proceeding before the Court in which or as a consequence of

which it might be necessary to compare the writings. The language of

Section 73 does not permit a court to give a direction to the accused to

give specimen writings for anticipated necessity for comparison in a

proceeding which may later be instituted in the Court.

In order to enable exercise of power under Section 73, the

pendency of a proceeding before the Court is the sine qua non.

Therefore, the comparison of the signature on the alleged ransom note in

no way helps the prosecution.

Great emphasis was laid by learned counsel for the State on the

evidence of PW-4, the Addl. CJM that accused had admitted that the

signature was his. This statement is of no assistance. The witness has

admitted that the statement was made before him by the accused in the

presence of police officials. The second circumstance is the alleged

extra judicial confession before PW-10. The High Court has analysed the

evidence in great detail. It is on record that the accused-Jagbir was

being taken to various places and at different points of time he was

being pressurized to make statement. Though the accused was claimed to

have made the statement in the presence of large number of persons, a

combined reading of the evidence shows that nobody else speaks about the

so-called extra judicial confession, not even those who have been

examined as PWs. Though PW10 said that there were many persons who had

heard it, no other person has stated about it. The statement of PWs 7

and 10 goes to show that accused was being interrogated by PWs and other

villagers as well as his father and other relatives. Interrogation

continued for about 3 days when allegedly Jagbir confessed his guilt.

Though the First Information Report was lodged by PW7 after knowing

about the extra judicial confession, there is no mention about this

vital fact. In a given circumstance, omission to mention about the

particular aspect may not render prosecution version suspicious. But

when circumstances in the present case are taken in the entirety

alleged extra judicial confession is not believable. In order to make

an extra judicial confession a reliable evidence it has to be shown that

the same was voluntary. The factual scenario as presented by the

prosecution goes to show that the alleged extra judicial confession

cannot be termed to be voluntary even if it was said to have been made,

as claimed. The High Court was right in discarding the alleged extra

judicial confession.

What remains now to be seen is whether the recovery of the dead

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

body from the premises of accused establishes prosecution version.

According to the prosecution when the Panchayat gave time to the accused

to produce the boy alive or dead, he accepted that the dead body was

buried in his compound. The accused dug the land and on seeing leg of

the dead body they stopped digging and went to the police. The High

Court has found that prosecution claimed that the two accused were

arrested by the Sub Inspector Mahender Singh Bhatti (PW 12) on 9.9.1995

on the culvert of Jai Canal about 8.00 p.m. in the presence of one

Chatter Singh and Om Parkash. However, Om Parkash (PW 10) has denied

about the arrest of the accused by PW12 near canal. From the statement

of PW12, it appears that the accused persons after their arrest made

disclosure of the statement about ransom, concealment of the dead body

and that the dead body recovered in the presence of aforesaid Chatter

Singh and Om Parkash (PW10). It is belied by the statement of Om Parkash

(PW10). According to this witness, when the accused made a voluntary

statement in the presence of many others he pointed out where the body

was buried. They went to the police station where they met PW12 and told

him about finding the dead body. PW10 told him that dead body was to be

handed over to Sr. S.P. or the Dy. S.P. Evidence of PW10 further shows

that PW.12 accompanied by another ASI and other police officials went to

the village. There many people had assembled and as the villagers

started shouting and agitating that led to altercation; both the accused

were arrested by the Dy.S.P. Thereafter it is stated that the accused-

Jagbir made a disclosure statement, where he (PW10) and Chatter Singh

were stated to be eyewitnesses. One thing is clear that there are

unexplained contradictions about the place where the accused were

arrested and manner of recovery. Since the dead body was recovered on

the basis of information already known, Section 27 of the Evidence Act

has no application. As observed by this Court in Aher Raja Khima v.

State of Saurashtra (AIR 1956 SC 217), if a recovery of the

incriminating articles alleged to have been made by the accused while

in custody is inadmissible in evidence if the police already known where

they were hidden. That takes the case out the purview of Section 27 of

the Evidence Act.

However, if a witness can be believed that in his presence the

accused person gave recovery of something (of course while not in police

custody) it may be a suspicious circumstance, de hors Section 27 of the

Evidence Act. But, as noted above, the High Court has analysed the

evidence in the present case in great detail to find the evidence to be

contradictory and unacceptable in relation to extra judicial confession

and alleged recovery. That being so, the High Court's conclusion cannot

be faulted.

Looked from any angle the judgment of the High Court does not

suffer from any infirmity which warrants interference.

It is true that an innocent child has lost his life and there may

be some truth about deficiency in the evidence collection mode. But the

court can act on the evidence brought before it. Even though the

investigation may not be entirely blemishless, at the same time when the

material brought on record is insufficient, the course adopted by the

High Court cannot be faulted. It does not appear that before the Trial

Court or the High Court any grievance was made regarding remiss in

investigation or not making investigation in the right direction.

The appeals are without merit and deserve dismissal, which we

direct.