Jagta Vs. State of Haryana  INSC
100 (23 April 1974)
KHANNA, HANS RAJ KHANNA, HANS RAJ REDDY, P.
CITATION: 1974 AIR 1545 1975 SCR (1) 165 1974
SCC (4) 747
R 1985 SC 48 (15) R 1990 SC1185 (2) R 1991
Circumstantial evidence--Criminal case--Value
The accused was convicted for the offences of
murder and attempt to commit rape. The evidence against him was purely
circumstantial consisting of, (a) recovery of some petty ornaments belonging to
the victim. (b) an extra judicial confession made by him to one of the
(c) his presence near the place of occurrence
on the day of occurrence, and (d) injuries on the person of the accused.
Allowing the appeal and acquitting the
HELD This Court does not normally in an
appeal under Art.
136 reappraise the evidence, but there are
glaring infirmities in the prosecution evidence in the case.
Circumstantial evidence in order to warrant
conviction, should be consistent only with the hypothesis of the guilt of the
accused and when there is reasonable. doubt the accused is entitled to its
benefit. [172 C; 171F] (a)No reliance could be placed upon the evidence that
the deceased was wearing. the ornaments on the day of the occurrence and that
those ornaments were removed from the person of the deceased by the accused
because, (i) No mention of the ornaments not being found upon the body of the
deceased was mentioned in the F.I.R. by her father and other witnesses who
discovered her body. (ii) No mention was made in the inquest report prepared in
broad daylight even though there is a specific column in the report relating to
ornaments and clothes of the deceased, (iii) The nature of the crime shows that
the crime is one of sex and not one for pecuniary gain, and (iv) It is
extremely unlikely that the accused, who was a landowner, would carry way such
petty ornaments to his house and keep them in his shirt pocket, and thus
provide evidence of his complicity in the crime.
[169G-H; 170A-D] (b)There is absolutely no
reason why the accused, instead of surrendering himself to the, police, should
go to the house of a prosecution witness, blurt out a confession before him,
and ask him to take him to the police. Since the evidence as to whether the
accused at all made a confession is unreliable and lacking in probability the
question as to what value would have been attached to the confession if the
evidence had been found to be reliable and trustworthy, need not be considered.
The attempt by the investigating agency to introduce a false story regarding
the removal of the ornaments and their recovery from the accused also affects
the credibility of the evidence regarding the extra-judicial confession. Also,
though the dead body was discovered according to prosecution at 11.30 p.m. even
before, by 8.00 p.m., the father of the victim and the sarpanch were declaring
that it was the accused who had committed the murder. It shows that body must
have been recovered even by 8.00 p.m. [170E-G] (c)The fact that the accused was
in his field at 1.00 p.m.
and was walking away at a fast pace at sun
set time would not necessarily point to the guilt of the accused especially
when there is no evidence. (i) that no other persons were present in the field,
and (ii) regarding the time at which the offence was committed. [171D]
(d)Assuming that the explanation of the accused that the injuries on his person
were caused by the police is not trustworthy. that circumstance though
suspicious, would not be sufficient to warrant his conviction of a serious
offence entailing death penalty. [171E-F] (e)The mere fact that the accused cut
an indecent joke with sister-in-law of the victim 20 days before the occurrence
could hardly be a valid basis for 166 suspicion, or in any case for a positive
assertion. that it was the accused who had murdered the deceased. [171H]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 14(1) of 1973.
Appeal by special leave from the judgment
& Order dated the 5th January, 1973 of the Punjab & Haryana High Court
in Criminal Appeal No. 931 of 1972 and Murder Ref. No. 46 of 1972.
R.K., Garg, S. C. Aggarwal, S. S. Bhatnagar
and V. J.Francis, for the appellant.
H. S. Marwah and Girish Chandra, for the
B. D. Sharma, for the complainant The
Judgment of the Court was delivered by KHANNA, J. This appeal by special leave
by Jagta alias Jagdish (34) is directed against the judgment of the Punjab and
Haryana High Court affirming on appeal and reference the conviction of the
appellant under section 302 Indian Penal Code for causing the death of Phul
Pati (23) and the sentence of death. The appellant was also convicted by the
trial court under section 376 Indian Penal Code and was sentenced to undergo
rigorous imprisonment for a period of eight years, but the High Court altered
the conviction on that score to, that under section 376 read with section 511
Indian Penal Code and sentenced him to undergo rigorous imprisonment for a
period of two years-.
Phul Pati deceased was the daughter of PW
Roopa of village Guhna in district Rohtak. She was married to Head Constable
Baldev Singh of village Bajana. About two days before the present occurrence
Phul Pati came to her father's house. In the afternoon of January 13, 1972 Phul
Pati left her father's house to go to his field to cut grass. The said field is
in the area of village Farmana at a distance of 1- 1/2 Kos from the abadi of
village Guhna. The three villages Guhna, Farmana and Ridhao are near each
other. The accused belongs to village Ridhao. The field of the accused adjoins
that of Roopa, father of Phul Pati. As Phul Pati did not return from the field
in the evening, it is alleged father Roopa and brother Maha Singh went- to the
fields in search of her. On reaching their field they found a heap of grass.
They shouted for Phul Pati but got no
response. Khes P1 which had. been taken by Phul Pati was seen lying on the
Patti of a drain. Roopa and Maha Singh shouted for Phul Pati at the patri of
the drain also but got no response.
Roopa and Maha Singh thereupon returned to
their village abadi and told Dharam Singh sarpanch, Bhima lambardar and Sube
member' Panchayat. and others of their village that their daughter Phul Pati
was not traceable. It became dark by that time. Dharam Singh, Bhima, Sube,
Roopa, Maha Singh and four or five other persons took four lanterns and went to
the fields to search for Phul Pati. The party found the dead body of Phul Pati
lying in the field of Risala. The string of the salwar of Phul Pati had been
untied and she was lying with her face downwards. Her choti had been tied round
her neck. Blood Was found to have oozed from her mouth, and nose. Leaving 167
Dharam Singh, Bhima, Sube and others near the dead body, Roopa 'left for police
station Kharkhoda at a distance of 14 miles from the place of occurrence and
lodged report PF at the police station at 5.30 a.m. on the following morning.
In that report Roopa after giving the above
facts stated that he suspected Jagta accused as the culprit it responsible for
the murder of the deceased. The, basis of that suspicion, 'according to Roopa,
was that the accused had about 20 days earlier cut indecent joke with his
daughter-in-law Birhmi (PW 3), wife of Maha Singh.
Sub Inspector Gugan Singh after recording the
first information report, took a police party and went with Roopa to the Place
of occurrence on scooter. The party reached the place of occurrence at about
8.30 a.m. The Sub Inspector found the dead body, of Phul Pati lying there
guarded by Dharam Singh sarpanch, Maha Singh 'and 'others. Blood was found to
have fallen on the ground. There were also signs of struggle. The Inspector
prepared the inquest report and the injury statement. The dead body was then
sent for post mortem examination to Rohtak. Post mortem examination on the dead
body of Phul Pati was performed by Dr. K. K. Sen at Rohtak on January 15, 1972
at 10 a.m.
According further to the prosecution case,
the accused could not be found by the Sub Inspector on January 14, 1972. On the
morning of January 15, 1972 the Sub Inspector was present in the office of the
co-operative society of village Farmana. At about 6.30 a.m. on that day, it is
stated, the accused went to the house of PW Ram Singh of village Farmana and
told him that Phul Pati had been murdered at his hands in the fields and that
he had committed a gin. The accused also requested Ram Singh to produce him
before the police. Ram Singh accordingly produced the accused before Sub
Inspector Gugan Singh in the office of the co-operative society at 7.30 a.m.
The Sub, Inspector put the accused under arrest. On interrogation by the
sub-Inspector the accused disclosed in the presence of Dharam Singh and Sube
that he had kept one Dhol (a small ornament for wearing round' the neck) and
one Koka (nose pin) in a shirt pocket in his house and could get the same
recovered. Statement PW of the accused was then recorded by the Sub Inspector.
The accused then led the police party to his house in village Ridhao, at a
distance of two furlongs from Farmana, and from the pocket of. shirt PS hanging
in his house the accused got recovered Dhol P2 and Koka P3. The shirt, though
washed, appeared to be blood stained. Dhol, Koka and shirt were taken into
possession and were sealed.
The accused at the time of his arrest was
also found to have injuries on his person. He was got examined from Dr. Pawan
Kumar at 12.30 p.m. on that day. The doctor found 12 abrasions on the person of
the accuse The injuries were simple and had been caused by blunt weapon. In
answer to a question, the doctor stated that two of the abrasions on the left
hand could be caused by sails or tooth bite. Smegma was also found on the organ
of the 'accused at the time he was examined.
168 Identification proceedings in respect of
Dhol P2 and Koka P3 were held by Shri Ranapartap Tehsildar (PW 10) on February
4, 1972. Dhol and koka were mixed with one other Koka and two Dhols. Dhol P2
and Koka P3 were correctly identified by Birhmi, wife of Maha Singh, as these
belonging to the deceased. The said Dhol and Koka were also identified by Than
Singh goldsmith (PW 11) as those having been prepared by the witness for Surja
Mal, father-in-law of the deceased.
At the trial the plea of the accused was
denial simpliciter. As regards injuries on his person, the accused stated that
he was called by the police from' his field at 10 a.m. on January 14, 1972 and
was thereafter kept at the, police station. The accused added that the injuries
on his person had been caused by the police. The allegations about his having
made an extra judicial confession to Ram Singh and about his having got
recovered Dhol and Koka from the pocket of a shirt were denied by the accused.
Learned Sessions Judge Rohtak, before whom
the accused was tried, accepted the prosecution evidence about the extra
judicial concession of the accused as well as about the recovery of Dhol and
Koka from the pocket of a shirt at the instance of the accused. The recovery of
shirt P8 was held to be not an incriminating circumstance as no one had deposed
that the accused was wearing that shirt on the day of occurrence. Reliance was
also placed by the learned Sessions Judge upon the evidence of Kishna (PW 5)
and Chattar Singh (PW 6). According to Kishna, he had seen the accused at about
1 p.m. on the day of occurrence present in his fields. The witness also saw
Phul Pati going at that time to her father's field along the drain. Chattar
Singh PW deposed that at about sunset time on that day, he saw the accused
walking on a pucca road at fast speed. The accused was at- that time going
towards his village. On being accosted by the witness, the accused did not stop
and stated that he had some work. In the result the accused was convicted and
sentenced as mentioned earlier.
On appeal and reference the High Court
substantially agreed with the view taken by the trial court. In view of the
presence of smegma on the organ of the accused, the High Court was of the
opinion that the actual commission of the offence of rape was doubtful. It was
held that the accused had attempted to commit rape on Phul Pati.
We have heard Mr. Garg on behalf of the
appellant and Mr.Marwah on behalf of the State and are of the opinion that the
conviction of the accused-appellant cannot be sustained.
There can be no manner of doubt that Phul
Pati was the victim of a beastly assault. The assailant not only committed or
attempted to commit rape upon her but also strangulated her to death. According
to Dr. K. K. Sen, who performed post mortem examination on the dead body,, the
neck of the deceased was found tied tightly all round with her choti. Ligature
mark was horizontal continuous and 169 complete. On dissection of the ligature
mark, blood was found in the subcutaneous tissues. 'De face of phul Pati was
swollen and cyanosis, The mouth was open and the tongue was protruding out. Her
face and nose were besmeared with blood-stained mud. Blood was also coming out
from the right ear. There was a laceration on the right side-of the vaginal
wall. A lacerated wound was on-the left middle finger. There were also a number
of abrasions all over the, body. The stomach contained three ounces of digested
food. Death 'in the opinion of the doctor, was due to asphyxia as a result of
strangulation. The doctor took three slides of vaginal smear and sent the same.
to the chemical examiner, whose report shows the presence of semen on the same.
The case of the prosecution is that it was
the accused who murdered Phul Pati deceased by strangulating her. The High
Court has further found that the murder of the deceased was committed by the
accused when he attempted to commit rape upon her. There is no eye witness of
the occurrence, but the prosecution has relied upon the recovery of Dhol P2 and
Koka P3 belonging to the deceased from the accused as well as upon his extra
judicial confession made to Ram Singh PW.
Reliance has further been placed by the
prosecution upon the fact that the accused was present near about the place of
occurrence on the day of occurrence and that he had injuries on his person.
We may first deal with the evidence about the
recovery of Dhol P2 and Koka P3 belonging to the deceased from the house of the
accused at his instance. The evidence in this respect consists of the testimony
of Sub Inspector Gugan Singh (PW 16), Dharam Singh sarpanch (PW 12) and Rajmal
lambardar (PW 13). We have further the evidence about the identification of
those two ornaments by Birhmi and Than Singh PWs in the identification
proceedings held by Shri Ranapartap. After having been taken through the
evidence on record, we are of the view that the prosecution allegation that the
deceased at the time of the occurrence was wearing Dhol P2 and Koka P3 and the
same were removed by the accused is highly improbable. If Phul Pati deceased
was, in fact, wearing Dhol P2 and Koka P3 on the day of occurrence and the same
were found to be missing when her dead body was recovered, it is most unlikely
that her father Roopa (Pw 2) and brother Maha Singh (PW 8) would not have
noticed the fact that those two ornaments were missing when they found the dead
body' lying in the fields. Roopa in that event wouldhave made a mention of the
fact that Dhol and Koka were missingin the first information report. There was,
however, no mention inthe first information report of those two ornaments or
about theirhaving been removed from the body. Mr. Marwah on behalf of the State
has argued that it is possible that the father and brother of the deceased
might not have noticed the removal of those two ornaments at night time when
they found the dead body. Assuming it to be so, we find no reason as to why no
mention of this fact was made when the inquest report was prepared in broad
daylight on the following day by Sub Inspector Gugan Singh. In the inquest 170
report the Sub, Inspector reproduced the statement of Roopa as given in the
first information report. Column No. 7 of the inquest report :specifically
relates to the condition of the clothes and ornaments of the deceased and the
police officer preparing the inquest report has to make an entry in that column
about any marks on the dead body caused by the removal of ornaments as well as
other matters connected with those ornaments. It is natural to assume that the
Sub- Inspector would make an enquiry from Roopa and others regarding ornaments
worn by the deceased at the time he filled in the above column. The fact that,
in spite of the above column, no mention was made of the missing Dhol and Koka
would tend to show that the evidence in this respect has been subsequently
introduced. It would also seem from the nature of the crime that the object of
the culprit was satiation of carnal passion and not pecuniary gain. It seems
most unlikely that the accused who is A landowner would carry two petty
ornaments belonging to the deceased to his house and keep them in the pocket of
his shirt even though those two ornaments would provide evidence of his
complicity in the crime relating to the murder of the deceased. We are,
therefore, not prepared to place any re- liance upon the evidence that the
deceased was wearing Dhol P2 and Koka P3 on the day of occurrence and that
those two ornaments were removed from the person of the deceased by the
So far as- the alleged extra judicial
confession of the accused is concerned, the prosecution has relied upon the
evidence of Ram Singh (PW 4). After having been taken through the evidence of
that witness, we find the same to be lacking in credence and devoid of any ring
of truth. The police was admittedly present in the office of the co- operative
society in village Farmana on the morning of January 15, 1972. We find no
reason as to why the accused, instead of surrendering himself before the
police, should go to the house of Ram Singh in village Farmana, blurt out a
confession before him and ask him to produce the accused before the police.
Nothing has been shown to us as to why the accused could not himself go and
appear before the police'. We have mentioned above that an attempt has been
made in this case to introduce the story of the recovery of ornaments belonging
to Phul Pati deceased from the accused.
The attempt of the investigating agency to
introduce a false story about the removal of the ornaments of the deceased and
their recovery from the accused would, in our opinion, also affect the
credibility of the evidence regarding the extra judicial confession alleged to
have been made to Ram Singh PW. The evidence about an extra judicial confession
is in the nature of things a weak piece of evidence. If the same is lacking in
probability as it is in the. present case, there would be no difficulty in
rejecting the same. We are, therefore, not prepared to place any reliance upon
the evidence regarding the extra judicial ,confession of the accused.
Mr. Marwah, has argued on the basis of
observations in some cases that the value of a confession should be judged by
taking it along with other evidence adduced by the prosecution. This question,
in our opinion, would arise only if there be reliable evidence about the making
of the confession. If, however, the court finds the 171 evidence on the point
as to whether the accused at all made the' confession to be unreliable and
lacking in probability,, no question need be considered as to what value would
have been attached to the confession, if the evidence about the accused having
made it had been found to be reliable and trustworthy. It is plain that the value
of the confession can be gone into only if its existence is established by
leading reliable evidence about the accused having made it.
We may now deal with the evidence about the
been seen at or about the place of occurrence
on the day of occurrence. The evidence in this respect consists of the
statement of Kishna (PW 5) and Chattar Singh (PW 6).
According to Kishna, he saw the accused
working in his field at 1 p.m. The witness also, saw Phul Pati going to the
fields alongside the drain. There is no material on the record to indicate as
to what was the time of the commission of the offence. There is no evidence on
the record also to show that no other persons were present in the fields at
that time. In the circumstances the presence of the accused in his field at I
P.M cannot take the prosecution case very far. So far as the evidence of
Chattar Singh PW is concerned, we find that all that the witness has, deposed
is that the accused was found walking towards his village on a pucca road at a fast
speed at sunset time. On being accosted by the witness, the accused did not
stop and stated that he had some work. This circumstance would also not
necessarily point to the guilt of the accused.
Lastly , we have the evidence about the
injuries which were found on the person of the accused. The explanation of the
accused is that those injuries were caused to him by the police. Assuming that
the explanation of the accused with regard to those injuries is not
trustworthy, this circumstance as well as the circumstance about his being
present in his fields at 1 p.m. on the day of occurrence and about his going at
sunset time on a pucca road towards his village are hardly sufficient to
warrant the, conviction of the accused in a serious offence entailing death
It is well established that circumstantial
evidence in order to warrant conviction should be consistent only, with the
hypothesis of the guilt of the accused. The same cannot be said to be true of
the circumstantial evidence adduced in this case.
We may also, refer to one other circumstance.
According to Dharam Singh sarpanch (P W12), the dead body of Phul Pati was.
discovered in the field of Risala at about 11 or 11.30 p.m. As against that,
the 'evidence of Dharma (PW 7) is that he was told by Dharam Singh and Roopa at
8, p.m. on that day that Jagta accused had murdered Roopa's daughter. The
evidence of Dharma would thus go to show that the dead body of Phul Pati had
been found before 8 p.m. and the evidence of Dharam Singh PW that it was at about
11 or 11.30 p.m.
that the dead body was found is not correct.
It is also not clear as to how Roopa and Dharam Singh could be positive that it
was the accused who had murdered the deceased because in a matter like this,
when there is no eye witness, one cannot be certain about the actual culprit.
The fact that the accused had cut an indecent joke with Birhmi about 20 days
before the present occurrence- 172 would hardly be a valid basis for the
suspicion or in. any case for the positive assertion that it was the accused
who had murdered Phul Pati deceased. Although in the first information report
Roopa PW only expressed his suspicion regarding the complicity of the accused
appellant, the evidence- of Dharma PW shows, as mentioned above, that Roopa and
Dharam Singh PWs asserted positively at 8 p.m. that the murder of the deceased
had been committed by, 'the accused.
It is possible that there was some other
evidentiary material with Roopa and Dharam Singh about the complicity of the
accused but the same has not been produced at the trial.
The evidence actually produced is either
unreliable or such as is not sufficient to warrant the conviction.
It is no doubt true that this Court does not
normally in an appeal under article 136 reappraise the evidence, but that fact
would not stand in the way of this Court examining the matter for itself, if it
finds that in a case involving death sentence the prosecution evidence is
afflicted with some glaring infirmity. The presence of injuries on the person
of the accused does create a suspicion regarding his corn plicity but that
suspicion by itself and in the absence of other incriminating evidence would
not warrant his conviction. The matter in any case is not free from reasonable
doubt and the accused must necessarily have the benefit thereof.
We therefore accept the appeal, set aside the
conviction of the accused and acquit him.