State of Punjab Vs. Bhajan Singh &
Ors  INSC 146 (16 August 1974)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1975 AIR 258 1975 SCR (1) 747 1975
SCC (4) 475
CITATOR INFO :
R 1985 SC 48 (15)
Criminal law--Accused charged with murder--Omission
by prosecution to establish 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 evidence 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 a property hence had a 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 a result
of a statement of the fourth accused from a 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 identity 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 : In 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 a 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 found out. May
be the doctor who Performed the post morterm should 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 a case of homicide, but it
would be contrary to all accepted principles of criminal jurisprudence to give
the benefit of that omission to the prosecution. [75OF-751 B] (b) An extra
judicial confession, in the very nature of things, is a weak piece of evidence.
In the present case, the evidence adduced regarding the making of the
confession 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 consequently, the prosecution
cannot derive much benefit from such evidence. [751G-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 accused, but suspicion by itself, however strong, is not
sufficient to take the place of proof of guilt. [751 H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 75 of 1974.
748 Appeal by special leave from the Judgment
& Order dated the 13th August, 1973 of the Punjab & Haryana High Court
in Criminal Appeal No. 291 of 1973.
O. P. Sharma, for the appellant.
Nuruddin Ahmad and U.P. Singh, for the
The Judgment of the Court was delivered by
KHANNA, J. Bhahjan Singh (60) his wife Charan Kaur (40), their son Surjit Singh
(20) and daughter Jito (16) were convicted by the learned Sessions Judge
Amritsar for offences under section 302 and section 302 read with section 34
Indian Penal Code 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 Charan Kaur and Jito were sentenced to undergo imprisonment for
life. Conviction was also recorded against the four accused under section 201
Indian Penal Code and each of them was sentenced to undergo rigorous
imprisonment for a period 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 thereafter came up in appeal to this Court by special leave.
Harbans Singh and Bachan Singh deceased were
brothers of Bhajan Singh accused. Ishar Singh deceased was the son of Hari
Singh, a third brother of Bhajan Singh. Hari Singh died a few years before the
present occurrence in Bihar.
Harbans Singh and Bachan Singh were
issueless. Bhajan Singh and his three brothers, Harbans Singh, Bachan Singh and
Hari Singh owned about 14-1/2 acres of land in the village of Dhulka in
Amritsar district. The case of the prosecution is that Harbans Singh, Bachan
Singh and Ishar Singh were killed by the accused so that they might also get
the share in the aforesaid land of the three 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 deceased persons used to live in a house in the fields at a
distance of about 1 1/2 miles from the village abadi. Close to their house was
the house of the accused. There was no other house nearby. When the three
deceased persons were found missing for a number of days, Hari Singh (PW 1) who
is a cousin of Bhajan Singh accused and Harbans Singh and Bachan Singh
deceased, made a report at police station Jandiala on the morning of May 7,
1972. It was mentioned in the report that the three deceased persons had been
missing and the informant apprehended that the accused might have done away
with the deceased persons with a view to grab their share in the joint land. A
case was thereupon registered under section 364 Indian Penal Code by Sub
Inspector Partap Singh (PW 8).
After the registration of the case, it is
stated, Sub Inspector Partap Singh went to the village of the parties and found
Bhajan Singh harvesting the wheat crop in the field. The Sub Inspector then
interrogated Bhajan Singh.
Bhajan Singh disclosed that he had buried the
dead bodies of his brothers Bachan Singh and Harbans Singh in 749 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 led the
police party to a place in front of his house. That place was dug open and two
dead bodies were recovered therefrom. One of the dead bodies, which was alleged
to be that of Bachan Singh, was in a naked state. The other dead body which was
alleged to be that of Harbans Singh, had a kachha (underwear) and a phatui
(waist coat) on it. A piece of cloth was found tied around the neck of the dead
body alleged to be that of Harbans Singh. The two dead bodies were then sent to
mortuary where post mortem examination was performed by Dr.Saluja on the
afternoon of May 8, 1972. The doctor found the two dead bodies to be in a
decomposed state. The features also could not be recognised. The doctor did not
find any ligature marks and could otherwise also not find out the cause of
It is further the case of the prosecution
that on May 9, 1972 Surjit Singh accused went to the house of Jabarjang Singh
(PW 5) and requested him to produce Surjit Singh before the police. Surjit
Singh also made an extra judicial confession before Jabarjang Singh. According
to that confession, Charan Kaur had called Bachan Singh deceased to the house
of the accused. Bachan Singh was then killed by the four accused in that house.
The four accused thereafter went to the house of Harbans Singh deceased and
strangulated him to death. The dead bodies of Bachan Singh and Harbans Singh
were thereafter buried in front of the house of the accused. Surjit Singh is
further stated to have told Jabarjang Singh that Jito had called 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 case, went to the house of Gurmej Singh (PW 3) on the morning of
May 10, 1972 and requested him to produce them before the police. Charan Kaur
and Jito also made extra judicial confession about their having along with the
other two accused caused the death of Harbans Singh and Bachan Singh.
it is also the prosecution case that during
the days of the present occurrence, Santokh Singh (PW 6) saw Surjit Singh
taking Ishar Singh on a 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 a cycle by Surjit Singh towards B.-as. Sub Inspector
Partap Singh (PW 8) is the investigating Officer and deposed about the recovery
of the two dead bodies at the instance of Bhajan Singh accused from a place in
front of his house.
The four accused in their statements under
section 342 of "he Code of Criminal Procedure denied the various
prosecution allegations. No evidence was produced in defence.
750 The learned Sessions Judge in recording a
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 Isbar 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 that only that part of the statement of Bhajan
Singh was admissible as related to the recovery of the two dead bodies. 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 of Harbans Singh and Bachan Singh.
The record of the case was further held to be bereft of any material which
might show that the death of the persons whose dead bodies had been recovered
was homicidal. The evidence about the extra judicial 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 a 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. There is no eye witness of
the occurrence and the conviction of the accused is sought to be accured on the
basis of circumstantial evidence. We, however, find that the evidence which has
been adduced in this case is far from satisfactory and that it suffers from a
number of infirmities. In the first instance, there is no evidence on record to
show that the two dead bodies which are alleged to have been recovered in
pursuance of the disclosure statement 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 dead bodies the doctor
performed post mortem were unrecognisable. Question then arises as to whether
the death of the two persons whose dead bodies were recovered 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 bodies. According further
to the doctor, he could not find the cause of death because the two dead bodies
were in a decomposed state. In the face of the above evidence of the doctor, it
is not possible 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 observed that the doctor who performed post mortem examination
was careless inasmuch as he failed to send the two dead bodies to the Professor
of Anatomy who might have been in a 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. Although it may be that it would
have been more appropriate on the 751 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 a
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 a criminal trial is upon the prosecution 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 same 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 a most heinous manner and under a 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 a sudden proneness to blurt out what they were at pains to conceal. In
any case it seems rather odd that all the three accused who had not been
arrested till the morning of May 9, 1972 should be seized almost at the same
time by a mood to make confession. It 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 a
position that the above mentioned 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 a 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
As regards the evidence of Santokh Singh (PW
6) who has deposed that he saw Surjit Singh taking Ishar Singh on a cycle
towards Beas, we find that according to the witness he made a statement to the
police about that fact about 15 days after he had seen Surjit Singh and Ishar
Singh going on a cycle. The date on which Santokh Singh made statement 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 Ishar Singh
going on a 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 a finding of
guilt of the accused. Another weakness of the prosecution case is that as 752
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 Harbans Singh and Bachan Singh deceased and that
their death was homicidal, it is difficult to say whether the dastardly crime
was the act of one or two culprits or of a 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 a 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.
M185 Sup. Cl/75--2500--1-9-75-GIPF.