STATE OF PUNJAB versus BHAJAN SINGH & OTHERS.

STATE OF PUNJAB

BHAJAN SINGH & OTHERS. August 16, 1974

(H. R. KHANNA AND Y. V. CHANDRACHUD JJ.)

Crilnina/ law-Accused charged with murder-Omission by prosecution to esta· hlish that death was homicidal-Suspicion against accused-Effect-Extra judicial confession-Weight of-Evidence of association of accused and deceased-Weight of.

Practice and Procedure-Acquittal by High Court-Interference by Supreme Court.

The four respondents were charged with the murder of three persons. The evi· dencc in the case was circumstantial. The trial Court found them guilty relying on the facts : (a) that the accused wanted to grab the shares of the deceased in property hence had motive to commit the murder; (b) that three of the accused made extra judicial confessions confessing to the murders; (c) that two dead bodies were recovered as result of statement of the fourth accused from place in front of his house where they were buried and (d) that there was evidence of association of one of the accused and the third person alleged to have been murdered.

On appeal, the High Court acquitted all the accused, on the grounds that the iden-D tity of the dead bodies was not established, that it was not established that the death was homicidal, that the extra judicial confessions did not inspire confidence, and that the evidence of association was not acceptable.

Dismissing the appeal to this Court,

HELD : Jn an appeal to this Court, against acquittal by the High Court, this Court does not interfere with the appraisement of the evidence by the High Court unless that appraisement is vitiated by some glaring infirmity. No such infirmity has been established in the present case. The circumstantial evidence adduced is far from satisfactory and suffers from number of infirmities. [752 B-C]

(a) There was no evidence to show that the two dead bodies were those of two of the deceased and that the death was homicidal. The medical evidence shows that the features were unrecognizable, and that the cause of their death could not be foLnd out. Maybe the doctor who Performed the post ITiOrten1 shculd have sent the dead bodies to an anatomy expert who might have -been able to give an opinion as to the cause of death and thus established that it was case of homicide, but it would be contrary to all accepted principles of crhninal jurisprudence to give the benefit of that on1ission to the prQsccution. [750F-751 BJ

(b) An extra judicial confession, in the very nature of things, is weak piece of evidence. In the present case, the evidence adduced regarding the making of the ccnfession also lacks plausibility and does not inspire confidence. [751 F]

(c) The date on which the witness stated to the police as having seen one of the accused and the third deceased together was about 15 days thereafter. On the evidence on record, it is not possible to fix the date of the .association and conse-G quently, the prosecution cannot derive much benefit from such evidence. [75JG-H] (d) Even if it be assumed that the dead bodies were those of two of the deceased and that the death was homicidal, it is difficult to say whether the crime was the act of one or more culprits. In any case, it is difficult to fix the identity of the culprits. [752A-B]

(e) The circumstances of the case undoubtedly create suspicion against the ac~ cused, but suspicion by itself, however strong, is not sufficient to take the place of proof of guilt. (751 HJ

Appeal by special leave from the Judgmeut & Order dated the 13th August, 1973 of the Punjab & Har~ana High Court in Crimiral Appeal No. 291 of 1973.

0. P. Shanna, for the appellant.

Nuruddtit A/11nad'<l.nd U. P. Singh, for the respondents.

The Judgment of the Court was delivered by

KHANNA, J. Bhajan Singh (60), bis wife Charan Kaur (40), their son Surjit Singh (20) and daughter Jito (16) were ccnvicttd by the learned Sessions Jt:dge Amritsar for offences under section 302 and section 302 read with section il4 Indian Penal Cede on charges on triple murder of Harbans Singh (50), Bachan Singh (40) and Ishar Singh (12). Bhajan Singh and Surjit Singh were sentenced to death while Ch1ran Kaur and Jito were sentenced to undergo imprirnnrnent for life. Conviction was also recorded against the four accused under section 201 Indian Penal Cede and each of them was sentenced to unc:ergo rigorous imprisonment for pericd of one year on that count. On appeal and reference, the Punjab and Haryana High. Court acquitted all the four accused. The State of Punjab there-after camo up in appeal to this Court by special leave. H2.rb2.ns Singh and Bachan Singh deceased were brothers of Bhajan Singh accuocd. Jshar Singh deceased was the rnn of Hari Singh, thi1d brcther cf Bhajan Singh. Hari Singh died fow yrnrs befo1e the present occurrence in Bihar. Harllans Singh and Bachan Singh were issudcss. Bhajan Singh and his three brothers, Ha1bans Singh, Baci1a11 Singh· and Hari Singh owned about 14t acres of land in the village cf Dhulka in Amritsar district. The case of the prosecution is th~t H2.rbans Singh, Bachan Singh and Ishar Singh were killed by the accusi;d so that they might also get the share in the aforernid land of the force deceased persons.

According to the prosecution case, for about 10 or 12 days before May 7, 1972, the three deceased persons were found to be missing-. The three deceas<d perrnns used to live in heme in the fields at distance of about I! miles !rem the village abadi. Close to their house was the house of the accused. There was no other house nea1by. When the three deceasecl persons were fourrd rni8'ing for number of d1y3, Hari Singh (PW 1) who is cousin of Bhajan Singh accused and Harbans Singh ar.d Bachan Singh deceased, m<.de report at police station Jandiala on the morning of May 7, 1972. It was menticncd in the report that the three deceasi;d persons h<.d been missing and the informant appreher.ded that the accused might have dcne away with the deceased porsons with view to grab their share in the joint land. case was thereupon register<d under section 364 Ir.dian Penal Cod' by Sub Inspector Partap Singh (PW 8).

After the registration of the case, it is stated, Sub Jmpector Pa1tcp Singh wont to the villa.ge of the parties and four.d Bhajan Singh har-VeJting th• wheat crop in the field. The Sub Inspector then inter-r,>g1tod B:nJ1n Singh. Bhajan Singh disclC'Sed that he ii<.d buried th' ,.4 bo1i·os of his brothers Bachan Sin~h and f!arbans Sin~h in

front of his house and could get the same recovered. Memo Ex: P-2 with regard to the disclosure statement of Bhajan Singh was prepared. Bhajan Singh then ltd the pclice party to place in frcnt of his home. That place was dug open and two dead bcdies were recovered there-from. One of the dead bcdies, which was alleged to be that of Ba-chan Singh, was in naked state. The other dead bcdy, which was alleged to be that of Harbans Singh, had kachha (underwear) and phatui (waist coat) on it. piece of cloth was fom:d tied around the neck of the dead body alleged to be that of Har bans Singh. The two dead bodies were then sent to mortuary where post· mort<m exa-mination was performed by Dr. Saluja on the afterncon of May 8, 1972. The doctor found the two dead bcdies to be in dee( mpcsed state. The features also could not be rccogni[(d. The doctor d'd not find any ligature marks and could otherwise alw not find out the cause of death.

It is furtrer the case of the prosecution that on May 9, 1972 Surjit Singh accused went to the house of Jabarjang Singh (PW 5) and re-quested him to prcduce Surjit Singh before the police. Surjit Singh also made an extra judicial confession before Jabarjang Singh. Ac-D cording to that confession, Charan Kaur hr.d called Bachan Singh deceased to the house of the accused. Bachan Singh was then kilkd by the four accused in that house. The four accused thereafter went to the house of Harbans Singh deceased and strangulat<d him to death. The dead bodies of Bachan Singh and Har bans Singh were thereafter buried in front of the house of the accus<d. Surjit Singh is further stated to have told Jabarjang Singh that Jito h<.d calkd Ishar Singh. Surjit Singh then took Ishar Singh and threw his dead body in the river Beas.

Charan Kaur and Jito, according to the prosecution care, went to the house of Gurmej Singh (PW 3) on the morning if' May 10, 1972 and requested him to prcduce them before the police. Chara.n Kau and Jito also made extra judicial confossicn about tt,eir having ale ng with the other two accused cau0<d the death of Ha1bans Singh and Bachan Singh.

It is also the prosecution case that during the days of the prermt occurrence, Santokh Singh (PW 6) saw Surjit Singh taking I'har Singh on cycle near Rayya towards Beas.

At the trial Gurmej Singh (PW 3) and Jabarjang Singh (PW 5) gave evidence about the extra judicial confessions of three of the accused. Santokh Singh (PW 6) deposed about his having seen Ishar Singh being taken on cycle by Surjit Singh towards B~as. Sub Inspector Partap Singh (PW 8) is the imestigating officer and deposed about the recovery of the two deLd Ix dies at the instance of Bhajan Singh accused frcm place in frcnt of his house.

The four accused in their statements under section 342 of the Cede of Criminal Procedure denied the various prom:uticn allegations. No evi4en~ was produce\! in 4efence, ·

The learned Sessions Judge in recording finding of guilt against the accused came to the conclusion that the motive to commit the murder of the deceased had been proved against the accused. Reliance was also placed upon the evidence regarding extra judicial confessions as also that relating to the taking of Ishar Singh towards the river Beas by Surjit Singh accused on his cycle. As regards the recovery of the two dead bodies, the learned Sessions Judge held tllat only that part of the statement of Bhajan Singh was admissible as related to the recovery of the two dead bcdies. The part of the statement that the two dead bodies were of Harbans Singh and Bachan Singh was held to be not admissible in evidence.On appeal and reference the learned Judges of the High Court found that there was no evidence to show that the two dead bodies which had been recovered were those cf Harbans Singh and Bachan Singh. The record of the case was further held to be bereft of any ma-terial which might show that the death of the persons whose dead bodies had been recovered was homicidal. The evidence about the extra judi-cial confession of the accused was found to be not inspiring confidence. Likewise, the evidence of Santokh Singh about his having seen Surjit Singh taking Ishar Singh on cycle was- not accepted. In the result the accused were acquitted. ·

We have heard Mr. Sharma on behalf of the appellant-State and are of the opinion that no case has been made for interference with the judgment of the High Court. Tl1ere is no eye witness of the occur-rence and the conviction of the accused is sought to be accured on the basis of circumstantial evidence. We, however, find that the evi-dence which has been adduced in this case is far from satisfactory and that it suffers from number of infirmities. In the first instance, there is no evidence on record to shew that the !wo dezd bcdies which are alleged to have been recovered in pursuance of the disclosure state-ment of Bhajan Singh were those of Bachan Singh and Harbans Singh deceased. The evidence of Dr. Saluja is clear on the point that the features of the persons on whose deRd bcdies the doctor performed post mortem were unrecognisable. Question then arises as to whether the death of the two persons whose dead bodies were re-covered was homicidal. So far as this aspect is concerned, we find that Dr. Saluja has deposed that he found no marks of ligature on either of the two dead bcdies. According further to the doctor, he could not find the cause of death because the two dead bcdies were in de-composed state. Jn tJ;e face of the above evidence of the doctor, it is not possibk to hold that the death of the two persons, whose bodies were recovered, was homicidal.

The learned Sessions Judge in the course of his judgment has ob-served that the doctor who performed post mortem examination was careless inasniuch as he failed to send the two dead bodies to the Pro-fessor of Anatomy who might have been in position to express opinion after examining the hyoid bone and cervical vertebra as to whether the death of the two deceased persons was due to strangulation. Al-though it may be that it would have been more appropriate on the

part of the doctor to have sent the dead bodies to an anatomy expert, the fact that the doctor did not do so cannot be ground for drawing an inference adverse to the accused. The accused cannot be made to suffer because of that omission of the doctor. It would indeed be contrary to all accepted principles to give the benefit of that omission to the prosecution. The onus in criminal trial is upon the prosecu-tion to prove the guilt of the accused. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution would be entitled to get the benefit of that.Coming to the evidence of extra judicial confessions, we find the sam~ to be improbable and lacking in credence. According to Gurmej Singh and Jabarjang Singh PWs, the confessing accused came to them and blurted out confessions. They also requested these two witnesses to produce them before the police. The resume of facts given above would go to show that according to the prosecution case, the murders of the three deceased persons were committed in most heinous manner and under veil of secrecy. Persons who commit such murders after taking precautions of secrecy are not normally likely to become garrulous after the commission of the offence and acquire sudden proneness to blurt out what they were at pains to conceal. Jn any case it seems rather odd that all the three accused who had not been arres-ted till the morning of May 9, 1972 should be seized almost at the same time by mood to make confession. Jt is significant that Surjit Singh, Charan Kaur and Jito accused had no particular relationship or connection with Gurmej Singh and Jabarjang Singh PWs. These two witnesses were also not in such position that the above men-tioned three accused would be willing to repose their confidence in them. If Surjit Singh, Charan Kaur and Jito wanted to surrender themselves before the police, we fail to understand as to why they should not themselves surrender before the police and go instead to Gurmej Singh and Jabarjang Singh and blurt out confessions before them. The evidence of extra judicial confession in the very nature of things is weak piece of evidence. The evidence adduced in this respect in the present case lacks plausibility and, as observed by the High Court, it does not inspire confidence.

As regards the evidence of Santokh Singh (PW 6) who has deposed that he saw Surjit Singh taking Ishar Singh on cycle towards Beas, we find that according to the witness he made statement to the police about that fact about 15 days after he had seen Surjit Singh and Ishar Singh going on cycle. The date on which Santokh Singh made state-ment to the police is not on the record and as such it is not possible to fix the approximate date on which Santokh Singh had seen Surjit Singh and Jshar Singh going on cycle. The prosecution consequently cannot derive much benefit from the statement of Surjit Singh.

The circumstances of this case undoubtedly create suspicion against the accused. Suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant finding _of guilt of the accused. Another weakness of the. prosecution case is that as

many as four persons have been involved in this case. Even if it may be assumed that the dead bodies which were recovered from the place in front of the house of the accused were those of Har bans Singh and Bachan Singh deceased and that their death was homicidal, it is diffi-cult to say whether the dastardly crime was the act of one or two cul-prits or of larger number of them. In any case it is difficult to fix their identity.

In an appeal against the judgment of the High Court recording finding of acquittal, this Court does not interfere with the appraisement of the evidence by the High Court unless that appraisement be vitiated by some glaring infirmity. No such infirmity has been brought to our notice. There is, in our opinion, no merit in this appeal. It accordingly fails and is dismissed.

Appeal dismissed

V. P. S.