Singh Vs. State of Punjab  INSC 529 (16 December 1993)
A.S. (J) ANAND, A.S. (J) FAIZAN UDDIN (J) CITATION: 1994 SCC (1) 726 JT 1993 Supl.
194 1993 SCALE (4)696
This appeal by special leave is directed against the judgment of the High Court
of Punjab and Haryana at Chandigarh upholding the conviction and
sentence of the appellant for offences under Sections 302/364/201 IPC.
appellant along with Kulwant Singh, Sinder Singh and Piara Singh was tried by
the Additional Sessions Judge, Patiala for
the aforesaid offences. By judgment dated July 23, 1988 the appellant was convicted and
sentenced to serve life imprisonment and a fine of Rs 2000 under Section 302
IPC. In default of payment of fine, he was further sentenced to 1 year rigorous
imprisonment. Under Section 364 IPC, he was sentenced to 10 years rigorous
imprisonment and a fine of Rs 1000 and in default, to suffer 1 year rigorous
imprisonment. For the offence under Section 201 IPC, he was awarded 7 years
rigorous imprisonment and a fine of Rs 500 and in default, 3 months rigorous
substantive sentences were to run concurrently while the three co-accused were
acquitted. No appeal was filed in the High Court against the acquittal of the
appellant's appeal before the High Court against his conviction and sentence
There is no eyewitness in this case. The case is based on circumstantial
evidence. The four circumstances relied upon by the prosecution before the
trial court and the High Court were as follows:
Last seen together.
Recovery of the shoes of the deceased at the instance of the appellant pursuant
to a statement under Section 27 of the Evidence Act, besides recovery of empty
liquor bottles and a glass.
Extrajudicial confessions made before Sarpanch of the village on July 16, 1986.
false explanation given by the appellant to the father of the deceased, when he
went looking for his son on the night of the occurrence.
Reliance was also placed on the alleged motive and the absconding of the
appellant but both were found to be feeble pieces of evidence and not given
According to the prosecution case the deceased Tarsem Singh had returned to the
house after doing the masonry work in the house of Mukhtiar 728 Singh at about 7.30 p.m. on July 8, 1986.
His father Kaka Singh was present at the house. The appellant is alleged to
have gone to the house of Kaka Singh and called the deceased and both of them
went out of his house together. At about 7.30 p.m. on the same date, i.e. on July 8, 1986, Harbhagwan PW 4, saw the appellant and the deceased
proceeding from the house of the deceased towards the Bhakra Canal. The accused and the deceased were also seen together taking
liquor by Gurmail Singh PW 5 at about 8.00 p.m. At about 8.45
PW 6 saw the deceased and the accused sitting on the bank of Bhakra Canal. When the deceased did not return home, his father Kaka
Singh PW 2 started making enquiries about him and went to the house of the
appellant. On enquiry he was told that the deceased might have gone somewhere
and would shortly return to the house. It is then the prosecution case that the
father of the deceased Kaka Singh PW 2, continued search for his son but to no
avail and then on July 13, 1986, he lodged the first information report,
Exhibit PG, for an offence under Section 364 IPC.
police party swung into action and the dead body of the deceased was recovered
from the canal on July
15, 1986. The
appellant was searched for but was not traceable till July 15, 1986. Subsequently, the appellant is
alleged to have made a disclosure statement leading to the recovery of two
empty liquor bottles and a glass from behind the bushes which were sealed and
sent to Malkhana. The appellant is also alleged to have made an extrajudicial
confession before Parampal Singh, PW 12, Sarpanch of the village, confessing
the guilt. The appellant after his arrest made a disclosure statement under
Section 27 of the Evidence Act leading to the recovery of a pair of shoes (juti)
which were identified by Kaka Singh PW 2, father of the deceased, as belonging
to the deceased. According to the medical evidence, the deceased died of
strangulation (asphyxia) and alcohol was found in the blood samples.
far as the circumstantial evidence is concerned, we find not only that none of
the circumstances have been established beyond a reasonable doubt but also that
all the circumstances, even taken together, do not lead only to the hypothesis
of the guilt of the appellant and are not inconsistent with the theory of his
innocence. We proceed to give our reasons for this opinion.
Though, according to the prosecution, the father of the deceased, Kaka Singh PW
2, lodged the first information report on July 13, 1986 and we also have it
from the evidence of PW 19, ASI Mukhtiar Singh 10 that between July 5, 1986 and
July 13, 1986 no one had given him any information about the missing of Tarsem
Singh, deceased or the occurrence, yet during his cross-examination, PW 2 Kaka
Singh admitted that the police had started search for his missing son on July
9, 1986. Prosecution has been unable to explain how the police started the
search for the deceased on July 9, 1986,
if no information whatsoever either about the missing of the deceased or the
commission of any offence relating to the deceased had been brought to the
notice of the ASI Mukhtiar Singh between July 5, 1986 and July 13, 1986. Obviously, the investigating officer has tried to conceal
729 certain facts which expose tainted nature of the investigation. That apart,
during his cross-examination, Babu Singh PW 8 deposed that he had seen the
appellant along with his co-accused behind the bars at the police station on July 8, 1986 at about 9/10 a.m. There is no
explanation from the prosecution side about this testimony. The testimony of
Kaka Singh PW 2, who admitted that he had been to the police station twice
after July 8, 1986 and that on July 9, 1986, the police started search for his
son when considered with the evidence of Harbhagwan PW 4, Gurmail Singh PW 5, Devi
Dayal PW 6 and Babu Singh PW 8, and the evidence of the investigating officer Mukhtiar
Singh PW 19 has created an impression on our minds that the prosecution has not
come out with all the facts and the evidence on the record conceals more than
what it reveals. Thus, the circumstance of 'last seen together' has not been
established and is even otherwise not sufficient to connect the appellant with
the crime. No explanation has been furnished by the prosecution for the silence
of PW 4, PW 5, PW 6 and PW 8 till after the body was recovered even though they
all belong to the same village and are known to the family of the deceased.
are also not impressed with the alleged circumstance relating to the
extrajudicial confession allegedly made by the appellant before PW 12 Parampal
Singh, Sarpanch of the village on July 16, 1986. It is admitted by PW 12 that he
had contested the election, during the Gram Panchayat elections, against the
cousin of the appellant who however, had got defeated. He also admitted that he
did not attend the cremation of the deceased or even participate in the Bhog
ceremony held on July
17, 1986. PW 12
admitted that he did not have any friendly relations with the family of the
appellant, because they belonged to two rival parties. In this state of
affairs, we find it difficult to accept that the accused would have gone to PW
12 who was inimically deposed towards his family to make an extrajudicial
confession. This circumstance, therefore, in our opinion has not been
established beyond a reasonable doubt and we cannot place any reliance on the
far as the recovery of the pair of shoes is concerned, it appears to be a very
clumsy piece of evidence.
to the investigating officer, the shoes were recovered pursuant to a disclosure
statement made by the appellant, Exhibit PW 12/C, from the bushes near the
mosque in the village and those shoes were taken into possession vide recovery
memo Exhibit PW 12/F. The shoes were made into a parcel and sealed and
deposited in the Malkhana by the Head Constable, Mohinder Singh. Kaka Singh PW 2,
however identified the shoes at the police station. It is interesting to note
his deposition in his behalf. He stated:
9/86, I went to P.S. Mulepur where SI was sitting. Sarpanch of Village Patarsi
also came in that room. ASI Mukhtiar Singh asked me to identify the pair of
shoes of my son from amongst 3-4 other pairs of shoes. All the pairs of shoes
were lying in the office room of SI/SHO. Nobody was present when I entered the
room of SI/SHO to identify the shoes. I identified the shoes of my son in the
presence of Sarpanch of Village Patarsi.
this stage a pair of shoes has been taken out of a 730 piece of cloth and
witness says that these shoes i.e. this pair of Juti Ex P. 6/1-2 pertained to
his son Tarsem Singh deceased.
out of which this pair of Juti has been taken out now is not sealed and it was
lying open from its mouth)."
The above statement of Kaka Singh PW 2, exposes the hollowness of the recovery
and we have no hesitation to say that the circumstance relating to the recovery
of the shoes has not only not been established but also that the investigating
officer appears to have fabricated this evidence and created false clues. We
rule it out of consideration.
The recovery of empty bottles and the glass, without any finger prints either
of the deceased or the accused on those bottles is hardly of any consequence
and we need not detain ourselves to examine that circumstance in any detail.
far as the last piece of circumstantial evidence about the alleged false
explanation of the appellant is concerned, suffice it to say that it cannot be
used against the appellant, not only for the reason that it was not put to him
in his statement recorded under Section 313 CrPC but also for the reasons that
the mere false explanation, assuming that it was given by the appellant, cannot
become basis for conviction of the appellant. The prosecution has to establish
its case and stand on its own legs. Weakness of the defence cannot be used as a
circumstance in favour of the prosecution.
Thus, we find that none of the circumstances relied upon by the prosecution
have been established in the case beyond a reasonable doubt and the chain of
the circumstantial evidence is so incomplete that it cannot justify the
conviction of the appellant at all. The courts below were clearly in error in
accepting the circumstantial evidence and convicting appellant on the basis of
such flimsy evidence. We accordingly accept this appeal and set aside the
conviction and sentence of the appellant and acquit him of all the charges.
The appeal is allowed accordingly.