Balwinder
Singh Vs. State of Punjab [1995] INSC 653 (9 November 1995)
Anand,
A.S. (J) Anand, A.S. (J) Sen, S.C. (J) Dr. Anand. J.
CITATION:
1996 AIR 607 1995 SCC Supl. (4) 259 JT 1995 (8) 81 1995 SCALE (6)261
ACT:
HEAD NOTE:
The
appellant on conviction by the learned Judge, Special Court, Patiala for
offences under Section 302/201 IPC was sentenced to suffer imprisonment for
life and to pay a fine of Rs.2,000/- and in default to suffer further RI for
two years for the offence under Section 302 IPC and 2 years RI for the offence
under Section 201 IPC. Both the sentences were, however, directed to run
concurrently.
Through
this appeal under Section 14 of the Terrorist Affected Areas (Special Courts)
Act, 1984, he has questioned his conviction and sentence.
The
prosecution case in brief is that the appellant and Smt. Tajinder Kaur, PW-2 were
married about 10 years prior to the date of occurrence which allegedly took
place on 18.3.1984. Two daughters pinky and Rozy aged about 6-1/2 or 7 years
and 2-1/2 years respectively were born out of this wedlock. Ajmer Kaur, mother
of the appellant as well as the appellant were unhappy with Tejinder Kaur, PW-2
for giving birth to daughters only and both she and the appellant used to
quarrel with Tejinder Kaur on that account, who was also given beating by the
appellant on certain occasions. On 17.3.1984 there was one such quarrel. The
appellant and his mother Ajmer Kaur conspired to put an end to the life of the
two daughters and in pursuance thereof on March 18, 1984, the appellant took away both the
daughters stating to PW-2 that he would return only after killing them. He
reached bus-stand Patiala where he met Balwant Kaur, PW-4 and
on her enquiry about the welfare of the children told her that he was taking
away his daughters to kill them. Balwant Kaur PW- 4 on hearing this went to the
house of the appellant and informed Tejinder Kaur PW-2 about it. The appellant
took the children to Ludhiana to the house of his sister Mohinder
Kaur, DW-1 and after staying there for a few hours left the house saying that
he was going to Rara Saheb. On 19.3.1984, Dr. Jaswant Singh PW-6 found the dead
body of a female child in the canal at about 12 or 12.30 p.m. when he went there to ease himself. The dead body was taken
out but no one who reached there from the adjoining villages could identify it.
At
about 4.30 or 5.00 p.m., the appellant also reached there
and identified the dead body as of his own child. He took the dead body of Rozy
and cremated her near Gurdwara Rara Saheb. The other daughter Pinky, however,
was not found either dead or alive. Satya Walia PW-3, a social worker and a neighbour
of the appellant and Tejinder Kaur PW-2 on coming to know about the murders
from the neighbours and from an extra-judicial confession made by the appellant
to her that he had murdered the girls and cremated the dead body of Rozy made a
written complaint, Ex. PB, to the police on 23.3.1984 and on its basis the
first information report was registered. The investigation of the case was
taken in hand by ASI Iqbal Singh PW-9 who visited the village as well as the
site of cremation. During the investigation the police took into possession
some bones and steel bangles from the place where the deadbody of Rozy was
cremated on the basis of a disclosure statement made by the appellant.
After
completion of the investigation, challan was filed against both the appellant
and his mother Smt. Ajmer Kaur.
Both
of them were charged for an offence under Section 120-B IPC, for conspiring to
commit the murder of Rozy and Pinky.
As
already noticed the appellant was also charged with the offences under Section
302/201 IPC for commiting the murder of Rozy and cremating her dead body to
screen himself. He was also charged for an offence under Section 302 IPC for
the murder of Pinky. The Trial Court after recording the evidence found that
the charge of conspiracy under Section 120-B IPC was not established and
consequently both the appellant and Ajmer Kaur were acquitted of the said
charge.
The
Trial Court also found that the charge against the appellant for an offence
under Section 302 IPC for committing the murder of Pinky had also not been
established and therefore acquitted the appellant of the said charge while
convicting and sentencing him for the offences under Section 302/201 IPC for
the murder of Rozy. The appellant, in his statement under Section 303 Cr.P.C.
had denied the prosecution allegations and stated that his wife was under the
influence of Satya Walia PW-3 who was leading her estray and since the parents
of his wife, Tejinder Kaur, PW-2 were greedy she used to earn money and
handover the same to her parents. He had admonished his wife for going estray
and keeping company with Satya Walia PW3 on a number of occasions. PW-2 had
gone to her parents house at Sunam leaving the children behind. While he had
gone to the market, the children left the house on their own and when he and
his mother Ajmer Kaur after search did not find them, they sent a telegram to Tejinder
Kaur PW2 and Sham Singh, on March 22, 1984.
That with the connivance of Satya Walia, PW- 3 he was falsely implicated in the
case.
There
is no direct evidence in this case in sofar as the murder of Rozy is concerned.
The prosecution relied upon the following circumstances to connect the
appellant with the crime in the Trial Court :
(i)
The evidence of "last seen together" based on the evidence of PW-2, Tejinder
Kaur, Balwant Kaur, PW-4 and of Mohinder Singh, PW-5 ;
(ii)
Extra-judicial confession made by the appellant to PW-3 Satya Walia.
(iii) the
recovery of dead body of Rozy from the canal and its claim by the appellant and
(iv) disclosure
statement made by the appellant leading to the recovery of bones of a child
from the place where the appellant had cremated the dead body of Rozy.
In a
case based on circumstancial evidence, it is now well settled that the
circumstances from which the conclusion of guilt is to be drawn should be fully
proved and those circumstances must be conclusive in nature to connect the
accused with the crime. All the links in the chain of events must be
established beyond a reasonable doubt and the established circumstances should
be consistent only with the hypothesis of the guilt of the accused and totally
inconsistent with his innocence. In a case based on circumstancial evidence the
Court has to be on its guard to avoid the danger of allowing suspicion to take
the place of legal proof and has to be watchful to avoid the danger of being
swayed by emotional considerations,, howsoever strong they may be, to take the
place of proof. It is in the context of the above settled principles, that we
shall analyse the evidence led by the prosecution.
(i)
Last seen together PW-2 Tejinder Kaur, wife of the appellant deposed about the
quarrels between her on the one side and the appellant and his mother on the
other side on account of the birth of the daughters only and went on to state
that on March 18, 1984 the appellant and his mother conspired to do away with
her two daughters, Rozy and Pinky, because they considered the birth of the
females to be a curse. She deposed that the appellant took away both the
daughters at about 12.30
p.m. or 1.00 p.m. on that day stating that he would return only after
killing them. Soon thereafter, Balwant Kaur PW-4, went to the house of PW-2 at
about 2.00 p.m. and told her that the appellant had
met her at the bus stand and disclosed to her, on her enquiry about the well
being of the children, that he was going to kill the daughters. On 19th March, 1984 her mother-in-law, Ajmer Kaur
informed her at about 6.30
a.m. that her
daughters had been killed by the appellant and thrown in the canal. On getting
this information PW-2 proceeded towards her parents house at Sunam but she was
brought back by her mother-in-law Ajmer Kaur from near the Modi College on a
rickshaw. Both of them then went out in "search" of the children. The
appellant returned to the house on 20th March, 1984 and on her enquiry from him about
the children, he disclosed to her that he had killed both the daughters and had
cremated Rozy behind the Gurdwara Rara Saheb and that the dead body of Pinky
had not been found. On hearing this news, she started crying. Satya Walia, PW-3
on hearing about the murders came to her house and asked the appellant about
the children who disclosed to her that he had killed them. During her
cross-examination PW-2 admitted that she had never earlier complained about the
quarrels or the beatings given to her by the appellant and his mother to anyone
except to Satya Walia PW-3 but conceded that she did not disclose to Satya Walia
PW-3 either that the cause of quarrels was on account of the birth of
daughters. In her statement recorded under Section 161 Cr.P.C. also the cause
of quarrel had not been stated by her and she was duly confronted with it. PW-2
also admitted that neither on 18th March, 1984 nor on 19th March, 1984 did she
inform anyone about the incident and even though Satya Walia had met her on
19th March she did not tell her about it and that it was only on 20th March,
1984 that she had disclosed to Satya Walia PW-3 for the first time as to what
had transpired on 18th March, 1984 and the information she had recived from her
mother-in-law on the morning of 19.3.1984. She did not report the matter to the
police nor even informed her parents about the murder of the children till
23.3.1984. Her statement was recorded by the police only on 24th March, 1984. She admitted that she had visited Gurdwara
Rara Saheb alongwith her mother-in-law on 20.3.1984 and had found ashes and
bones there.
The
prosecution sought corroboration of the evidence relating to the taking away of
the two daughters by the appellant as deposed to by Tejinder Kaur PW-2 from the
statements of Balwant Kaur, PW-4 and Mohinder Singh PW-5.
The
Trial Court did not place any reliance upon the statement of Balwant Kaur PW-4
and in our opinion rightly.
Her
statement does not inspire any confidence. Though PW-2 in her statement deposed
that PW-4 was her mother's sister and had come to her straight from the bus
stand on hearing from the appellant that he was going to kill the daughters,
PW-4 Balwant Kaur in her cross-examination stated "Tejinder Kaur is not
related to me as such. My purpose of visit was to see Tejinder Kaur as directed
by her mother." The prosecution, however, did not examine the mother of Tejinder
Kaur to elicit "what direction" she had given to PW-4 and why. This
material contradiction between her testimony and the statement of PW-2 Tejinder
Kaur besides the improbability of the appellant making any statement to her
renders her evidence untrustworthy.
So far
as the evidence of PW-5 Mohinder Singh, the father-in-law of the sister of the
appellant is concerned, the Trial Court found it to afford corroboration to the
statement of PW-2. According to him, the appellant had visited his house on
18.3.84 at about 4.00 or 4.30
p.m.
Along with
his daughters Pinky and Rozy and after taking tea had left the house informing
him that he was going to visit Rara Saheb. During his cross-examination, PW-5
denied the suggestion that after marriage, his son Amrik Singh was risiding
separately from him and that he was not having good relations with his
daughter-in-law, sister of the appellant.
This
is the entire evidence relied upon by the prosecution in support of the first
circumstance.
There
was a delay of 5 days in lodging the first information report Ex. PB. On her
own admission, PW-2 Tejinder Kaur was told by the appellant while taking away
the girls on 18.3.1984 at about noon
time that he was going to kill them. She, however, kept quiet. She did not
protest let alone raise any hue and cry so as to prevent the appellant from
taking away the daughters for killing them.
She
did not even disclose to anyone as to what the appellant had told her even
though the appellant did not return home at night. On 19th March she learnt at
about 6.30 a.m. from her mother-in-law Ajmer Kaur,
a co-conspirator with her husband, that the appellant had killed the two
daughters and thrown them in the canal. She still kept quiet and not only did
she not raise any hue or cry she did not inform anyone including her parents
and Satya Walia. PW3, who had admittedly met her on that day about the
incident. This conduct is rather unnatural for a mother, keeping in view the
earlier quarrels and the declarations made by the appellant of his intention to
kill the daughters on 18.3.1984 itself. PW-2 also admitted in her crossexamination
that she alongwith her mother-in-law Ajmer Kaur had gone out in search of the
children to various places including Ragho Majra, where the maternal uncles of
the appellant were residing. Why would Ajmer Kaur go with her, to search for
the children, when she already knew that the appellant had killed them and
thrown the dead bodies in the canal is not at all understandable? From the
statement of PW-3 as contained in the FIR it emerges that when she came out of
the house of the appellant, she had met PW-2 and Ajmer Kaur coming in a
rickshaw and that both of them were weeping at that time. This conduct of Ajmer
Kaur does not fit in with the prosecution case. PW2 also admitted that she alongwith
her mother-in-law had visited Gurdwara Rara Saheb on 20th March, 1984 itself
and had seen the mortal remains of her child and that the appellant had also
told her on returning home on 20.3.1984 that he had killed the girls, but still
she did not lodge any complaint with the police or inform anyone about it. PW2
could give no explanation for her silence. The evidence of PW-5, Mohinder
Singh, the father-in-law of the sister of the appellant does not inspire
confidence. DW-1, Mohinder Kaur, wife of Amrik Singh, daughter-in-law of PW-5
asserted in her statement that the appellant had never visited her house in
March 1984 alongwith his children and that when she came to know on March 23,
1984 that the children of her brother were missing from their house, she had
visited his house. She stated that her father-in-law was residing separately
from her and that she and her husband had separated from him within six months
of their marriage. She and her husband were not even on visiting terms with her
father-in-law. These assertions of DW1 have remained unchallenged. These was,
thus, no occasion for the appellant to go to the house of the father- in-law of
her sister, with whom admittedly his sister was having strained relations and
not visiting his sister at all on that day. In the face of the statement of
DW-1, the correctness of the statement of PW-5 becomes doubtful. PW-5 appears
to have come forward to depose against the appellant, who is the only brother
of his daughter of his daughter-in-law DW-1 Mohinder Kaur, posslbly because of
his strained relations with her. It appears to us that the delay in lodging the
first information report was utilised by the complainant party in giving twist
to the facts and introducing interested witnesses like PW-4 and PW-5 in the
case. We are not impressed by their statements and find that the same can
afford no corroboration to the otherwise untrustworthy testimony of Tejinder Kaur,
PW-2. The Trial Court erred in relying upon the statements of PW-2 and PW-5,
ignoring the basic infirmities in their evidence and overlooking the delay in
the lodging of the FIR. The prosecution had failed to establish that the
appellant had taken away his two daughters on 18th March, 1984 in the manner alleged by it. In our opinion the evidence
led by the prosecution to establish the circumstance of "last seen
together" has not been established beyond a reasonable doubt.
(ii)
Extra-judicial confession:
An
extra-judicial confession by its very nature is rather a weak type of evidence
and requires appreciation with great deal of care and caution. Where an
extrajudicial confession is surrounded by suspicious circumstances its
credibility becomes doubtful and it loses its importance.
The
courts generally look for independent reliable corroboration before placing any
reliance upon an extra judicial confession.
The
Trial Court relied upon the extra-judicial confession allegedly made by the
appellant to PW-3 Satya Walia to the effect that he had killed his daughters
and had cremated the dead body of Rozy, to connect the appellant with the
crime. It found corroboration of the statement of PW-3 from the evidence
relating to the recovery of the dead body from the canal and the disclosure
statement allegedly made by the appellant leading to the recovery of the bones
from the place behind Gurdwara Rara Saheb, besides the statement of PW2.
PW-3
claims to be the Pardhan of Mohalla Preet Nagar and states that she is a social
worker. According to her deposition, the appellant had made an extra judicial
confession to her when she visited his house on 20.3.84 on learning from the neighbours
that the appellant had killed his two daughters. PW-3, however, lodged the
complaint with the police only on 23rd March, 1984 when not only had she learnt from
the neighbours about the murder of the two girls by the appellant but the
appellant had himself made an extra judicial confession to her on 20.3.84
itself. PW3 admitted in her cross-examination that she was with the police in
connection with the case of Darshana from 21st March to 23rd March, 1984 but could offer no explanation as
to why she did not lodge the complaint with the police till 23.3.84. This delay
also probabalises the defence version that after 22.3.84, When PW2 and Sham
Singh and others arrived from Sunam on getting the telegraphic information
about the missing children, they falsely implicated the appellant with the help
of PW3.
Again,
according to PW-3, when she met PW-2 and her mother-in-law on coming out of the
house of the appellant after he had made an extra-judicial confession to her, Tejinder
Kaur PW-2 started crying on seeing her while her mother-in-law Ajmer Kaur kept
silent. This is an apparent improvement made by her at the trial since in her
statement in the FIR Ex. PB, with which she was duly confronted, she had stated
that both Tejinder Kaur and Ajmer Kaur were weeping and crying. When asked to
explain this improvement at the trial, PW-3 stated that she had "nothing
to say". In view of the hostility which the appellant had with PW3, for
leading his wife estray, we find it rather difficult to accept that the
appellant could have made any extra-judicial confession to her. The manner in
which the extra-judicial confession is alleged to have been made and the
silence of PW-3 for three days in disclosing the same to the police, even
though she had admittedly been with the police between 21st and 23rd March, 1984 renders it unsafe to rely upon her
statement. This un-explained long delay in lodging the first information report
Ex. PB detracts materially from the reliability of the prosecution case in
general and the testimony of PW3 in particular. We find that the alleged
extra-judicial confession is surrounded by suspicious circumstance and the
prosecution has not been able to establish that the appellant had made any
extra-judicial confession to PW-3 Satya Walia and therefore this circumstance
remains unestablished.
(iii)
Recovery of a dead body and its claim by the appellant as that of Rozy Though
with the ruling out of the circumstance relating to the "last seen
together " and " the making of extra- judicial confession", as
not having been established, the chain of circumstantial evidence snaps so
badly that it is not necessary to consider any other circumstance, but we find
that even the third circumstance relating to the recovery of the dead body, and
it being claimed by the appellant and its subsequent cremation by him has
remained unestablished.
The
two witnesses relied upon by the prosecution in support of the 3rd circumstance
are PW-6, Dr.Jaswant Singh and PW-7, Naib Singh. According to PW-6, on 19th March, 1984 when he had gone near the canal to
case himself, he noticed dead body of a female child in the canal. Tej Singh Panch,
Santokh Singh and Naib singh also arrived at the spot, and the dead body was
taken out of the canal. None out of those who had, by that time assembled at
the spot, could identify the child whose dead body was recovered. The chowkidar
of the village was sent to the adjoining villages for ascertaining the identify
of the child. However, no one was able to identify the child. The appellant
went to the spot at about 5.00 p.m. and
stated that "his children had fallen in the canal and he was in search of
them." He identified the dead body as that of his daughter Rozy. He was
given custody of the dead body. He wanted to take the child to Patiala but stated that he was a poor
person and had no money. Persons who were present there contributed some money
and gave it to him to take the dead body to Patiala. That later on he came to know from some "other persons" that
the appellant had cremated the dead body near the drain. Naib Singh PW-7, who
has a shop situated on the canal bank of Rara Saheb spoke on the same lines as
PW-6. He deposed that at about 12.00 noon or 12.30 p.m. he came to know about the presence of the dead body
of a child The dead body was recovered from the canal. No one was able to
identify the dead body till the appellant arrived there at about 5.00 p.m. and identified the body to be that of his child. The
child was handed over to the appellant, who was also given some money on his
stating that he was a poor person and did not have any money to take the dead
body to Patiala.
Admittedly,
neither PW-6 nor PW-7 knew the appellant from before. No identification parade
was held to identify the appellant as the person who had approached PW-6 and
PW-7 and had claimed the dead body to be that of his daughter. It was incumbent
upon the prosecution to have held an identification parade for proper
identification of the appellant by these two witnesses. Not only did it fail to
hold an identification parade but the prosecution also failed to give any
explanation for not holding such a parade. The identification of the appellant
by PW-6 and PW- 7, as the person who had claimed the dead body, in court, about
9 months later, in the absence of any earlier identification, loses much of its
importance and is in any event not sufficient to hold that the appellant had
claimed the dead body to be that of his child. Thus, considered in the light of
the above discussion, we find that the prosecution has not been able to
establish the circumstance relating to the recovery of the dead body or it
being claimed by the appellant to be that of his child. It cannot be said with
any amount of certainty that the dead body found by PW-6 and PW-7 was that of Rozy
or that the appellant had claimed the dead body to be that of his child.
The
evidence is of a doubtful nature and has to be ruled out of consideration to
connect the appellant with the crime.
(iv)
Disclosure statement :
The
last circumstance relied upon by the prosecution is the disclosure statement of
the appellant, leading to the recovery of the bones of the deceased. The Trial
Court ruled out of consideration the disclosure statement and the consequent
recovery of the bones and placed no reliance on it. The Trial Court opined
"At the outset it may be stated that in this case no importance can be
attached to the disclosure statement made by Balwinder Singh accused and in
consequence thereof recovery of the bones. Tejinder Kaur PW had already visited
the place of cremation much before the case was registered. Be that as it may,
there is no reason to doubt that bones were taken into possession from the
alleged place of cremation which is admittedly an open place." We agree
with the trial court.
That
apart, the prosecution evidence is not specific as to whether even the bones
which were recovered from the place of cremation behind Gurdwara Rara Saheb
were those of Rozy. According to PW-6 and PW-7, the age of the dead body of the
child which was recovered from the canal was about 4 or 4-1/2 years. According
to the evidence of Dr. Surinder Behal, PW-1, the bones which were sent to him
for examination were of a child aged between 3 to 5 years and the identity of
the sex of the child could not be established from those bones. From the
prosecution evidence including the statement of PW-2, the age of Rozy was about
2 or 2-1/2 years. It cannot therefore, be said that the recovered bones have
been connected positively to be those of Rozy. Moreover, according to PW-6 and
PW-7, the child whose body was recovered from the canal had red/pink rubber
bangles on its wrist but according to PW-2 when Rozy left home in the company
of the appellant, she was wearing steel bengles. The bangles which were
recovered from the place of cermation alongwith the bones were also found to be
steel bangles. Thus, it cannot be said with any amount of certainty that the
bones which were taken into possession pursuant to the disclosure statement
allegedly made by the appellant were that of Rozy at all. In this connection it
also deserves to be noticed that Sham Singh and Satpal before whom the
disclosure statement, Ex. PE, was alleged to have been made by the appellant, as per the evidence of
ASI Iqbal Singh PW were not examined at the trial. Even the witnesses to the
recovery of the bones were withheld and not produced at the trial. These infirmities,
create a doubt about the correctness of the prosecution case regarding the
making of any disclosure statement by the appellant. This circumstance also,
therefore, has not been established by the prosecution.
From
the above discussion it emerges that none of the four circumstances relied upon
by the prosecution to connect the appellant with the crime have been
established by the prosecution. On an independent appraisal of the evidence on
the record, we have unhesitatingly come to the conclusion that the Trial Court
was not justified in convicting and sentencing the appellant for the offence
under Section 302/201 IPC. The finding of guilt recorded against the appellant
by the Trial Court is not sustainable in law. From the very opening sentence of
the judgment of the Trial Court which reads "Birth of a female child is
still considered a curse in the Indian society. The present case is the worst
type of example where father is alleged to have caused the murder of his two
daughters who were aged between 5 to 7 years." it appears to us that the
Trial Court got swayed by emotional considerations and allowed suspicion,
surmises and conjectures to take the place of legal proof.
This
appeal is consequently allowed and the conviction and sentence of the appellant
is hereby set aside. The appellant is on bail by virtue of an order of this
Court dated 25.4.1989. His bail bonds shall stand discharged.
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