{"id":217303,"date":"2003-09-26T00:00:00","date_gmt":"2003-09-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-jagbir-singh-and-anr-on-26-september-2003"},"modified":"2016-05-09T19:00:47","modified_gmt":"2016-05-09T13:30:47","slug":"state-of-haryana-vs-jagbir-singh-and-anr-on-26-september-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-jagbir-singh-and-anr-on-26-september-2003","title":{"rendered":"State Of Haryana vs Jagbir Singh And Anr on 26 September, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Haryana vs Jagbir Singh And Anr on 26 September, 2003<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Doraiswamy Raju, Arijit Pasayat.<\/div>\n
           CASE NO.:\nAppeal (crl.)  1721 of 1996\n\nPETITIONER:\nState of Haryana\t\t\t\t\t\t\n\nRESPONDENT:\nJagbir Singh and Anr.\t\t\t\n\nDATE OF JUDGMENT: 26\/09\/2003\n\nBENCH:\nDORAISWAMY RAJU & ARIJIT PASAYAT.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
WITH<\/p>\n
CRIMINAL APPEAL NOS.1237-1238\/2003
\n(Arising out of SLP (Crl.) Nos. 1076-1077\/1996]<\/p>\n
—-\n<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
Leave granted in SLP (Crl.) Nos. 1076-1077\/1996.\n<\/p>\n
Questioning legality of judgment rendered by a Division Bench of
\nthe Punjab and Haryana High Court, Criminal Appeal No. 1721 of 1996 has
\nbeen filed by the State of Haryana. The other two appeals are by the
\ninformant.  An innocent child of about 4 years was the victim of
\nunnatural death.  According to the prosecution, respondents caused his
\nhomicidal death after kidnapping him.  The motive for the killing was
\nstated to be intended demand of ransom for his release. The Sessions
\nJudge, Bhiwani found the respondent-accused Jagbir Singh to be guilty of
\noffences punishable under Section 302 IPC.  He was also convicted for
\noffence punishable under Sections 364, 201 and 384 of the Indian Penal
\nCode, 1860 (in short the ‘IPC’). For the offence punishable under
\nSection 302 IPC he was awarded death sentence and for other offences
\nperiod of sentence already undergone in custody. Accused Umed Singh was
\nconvicted for offences punishable under Section 201 IPC and was directed
\nto suffer RI for 3 years and fine. Both the accused persons preferred
\nappeal before the High Court. The High Court by the impugned judgment
\nfound them not guilty.\n<\/p>\n
 According to the prosecution, death of the victim  was on
\n6.9.1991 and passing through a chain of incidents and happenings,
\nfinally the First Information Report was lodged on 9.9.1991. In between,
\na ransom letter meant for somebody else was found in torn condition and
\nthat led to suspicion against the accused-respondents.  Accused-Jagbir
\nis related to Daya Nand (PW7), a teacher. It appears that on account of
\nseveral circumstances, the villagers thought that accused-Jagbir was
\nresponsible for disappearance of the child.  He was given time to
\nproduce the child.  A ransom note was found to be in the hand writing of
\naccused-Jagbir and he is stated to have pointed out the place where the
\ndead body was buried in his house and also on the basis of his
\ninformation  certain articles were recovered.  It was also the version
\nof PW7 that at a point of time, accused-Jagbir was taken to the police
\nwith the material indicating his complicity in the alleged incident. But
\nthe police did not arrest him and left him off.  It was pointed out
\nthere was grave doubt about the manner in which the investigation was
\nbeing conducted, and alleged inaction of police.  On completion of
\ninvestigation charge sheet was placed and accused faced trial.  The case
\nbefore the Trial Court was based on circumstantial evidence. The
\ncircumstances which according to the prosecution established guilt of
\nthe accused are as follows:\n<\/p>\n
(1)\tThe ransom notes were in the handwriting of the accused-
\nJagbir Singh;\n<\/p>\n
(2)\tThere was extra-judicial confession before PW-10 and;
\n(3)\tRecovery of dead body on the basis of information given by
\nthe accused while in custody in terms of Section 27 of the Evidence Act,
\n1872 (for short ‘the Evidence Act’).\n<\/p>\n
The Trial Court found the above circumstances sufficient for
\nestablishing guilt of the accused persons for the offences alleged.  In
\nappeal, the High Court upset the findings and held the accused persons
\nnot guilty.\n<\/p>\n
In support of the appeals, learned counsel for the State and the
\ninformant submitted that the High Court’s approach was erroneous.  It
\nfailed to notice that the police was adopting a partisan role and the
\nevidence of witnesses brought on record was in a particular line. The
\ninvestigation was done otherwise and the police did not place adequate
\nmaterial before the Court.  It was pointed out that the ransom note has
\nbeen erroneously discarded by the High Court. It should have noticed
\nthat the accused-Jagbir accepted the handwriting to be his and,
\ntherefore, the handwriting expert’s report was available to be used
\nagainst the accused; particularly when the handwriting was given
\nvoluntarily for comparison.  Further the extra judicial confession
\nbefore PW-10 has been discarded without any reasonable basis.  Finally,
\nwhen the dead body was recovered from the house of the accused on the
\nbasis of the information given while in custody, the High Court should
\nhave relied upon the same.\n<\/p>\n
There was no appearance for the respondents-accused when the
\nmatter was taken up for hearing, though the respondents had appeared
\nthrough their counsel, and the cause list indicated name of the counsel.\n<\/p>\n
 It is unfortunate that an innocent child has lost his life but
\nthe crucial question is whether the accused persons were responsible for
\nhis death and the prosecution was able to prove its claims beyond
\nreasonable doubt. As stated earlier the case rests on circumstantial
\nevidence.\n<\/p>\n
It has been consistently laid down by this Court that where a case
\nrests squarely on circumstantial evidence, the inference of guilt can be
\njustified only when all the incriminating facts and circumstances are
\nfound to be incompatible with the innocence of the accused or the guilt
\nof any other person. (See Hukam Singh v. State of Rajasthan AIR<\/a> (1977 SC
\n1063); Eradu and Ors. v. State of Hyderabad (AIR<\/a> 1956 SC 316);
\nEarabhadrappa v. State of  Karnataka  (AIR 1983 SC 446); State of U.P.
\nv. Sukhbasi and Ors. (AIR<\/a> 1985 SC 1224); Balwinder Singh v. State of
\nPunjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR<\/a>
\n1989 SC 1890). The circumstances from which an inference as to the guilt
\nof the accused is drawn have to be proved beyond reasonable doubt and
\nhave to be shown to be closely connected with the principal fact sought
\nto be inferred from those circumstances. In Bhagat Ram v. State of
\nPunjab (AIR 1954 SC 621), it was laid down that where the case depends
\nupon the conclusion drawn from circumstances the cumulative effect of
\nthe circumstances must be such as to negative the innocence of the
\naccused and bring the offences home beyond any reasonable doubt.\n<\/p>\n
\tWe may also make a reference to a decision of this Court in C.
\nChenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has
\nbeen observed thus:\n<\/p>\n
“In a case based on circumstantial evidence,
\nthe settled law is that the circumstances from which
\nthe conclusion of guilt is drawn should be fully
\nproved and such circumstances must be conclusive in
\nnature. Moreover, all the circumstances should be
\ncomplete and there should be no gap left in the chain
\nof evidence. Further the proved circumstances must be
\nconsistent only with the hypothesis of the guilt of
\nthe accused and totally inconsistent with his
\ninnocence….”.\n<\/p>\n
In Padala Veera Reddy v. State of A.P. and Ors.  (AIR 1990 SC 79),
\nit was laid down that when a case rests upon circumstantial evidence,
\nsuch evidence must satisfy the following tests:
\n“(1)\tthe circumstances from which an inference of
\nguilt is sought to be drawn, must be cogently and
\nfirmly established;\n<\/p>\n
(2)\tthose circumstances should be of a definite
\ntendency unerringly pointing towards guilt of the
\naccused;\n<\/p>\n
(3)\tthe circumstances, taken cumulatively should
\nform a chain so complete that there is no escape from
\nthe conclusion that within all human probability the
\ncrime was committed by the accused and none else; and
\n(4)\tthe circumstantial evidence in order to sustain
\nconviction must be complete and incapable of
\nexplanation of any other hypothesis than that of the
\nguilt of the accused and such evidence should not only
\nbe consistent with the guilt of the accused but should
\nbe inconsistent with his innocence.\n<\/p>\n
\tIn State of U.P. v. Ashok Kumar Srivastava,<\/a> (1992 Crl.LJ 1104), it
\nwas pointed out that great care must be taken in evaluating
\ncircumstantial evidence and if the evidence relied on is reasonably
\ncapable of two inferences, the one in favour of the accused must be
\naccepted.  It was also pointed out that the circumstances relied upon
\nmust be found to have been fully established and the cumulative effect
\nof all the facts so established must be consistent only with the
\nhypothesis of guilt.\n<\/p>\n
\tSir Alfred Wills in his admirable book “Wills’ Circumstantial
\nEvidence” (Chapter VI) lays down the following rules specially to be
\nobserved in the case of circumstantial evidence: (1) the facts alleged
\nas the basis of any legal inference must be clearly proved and beyond
\nreasonable doubt connected with the factum probandum; (2) the burden of
\nproof is always on the party who asserts the existence of any fact,
\nwhich infers legal accountability; (3) in all cases, whether of direct
\nor circumstantial evidence the best evidence must be adduced which the
\nnature of the case admits; (4) in order to justify the inference of
\nguilt, the inculpatory facts must be incompatible with the innocence of
\nthe accused and incapable of explanation, upon any other reasonable
\nhypothesis than that of his guilt, (5) if there be any reasonable doubt
\nof the guilt of the accused, he is entitled as of right to be
\nacquitted”.\n<\/p>\n
\tThere is no doubt that conviction can be based solely on
\ncircumstantial evidence but it should be tested by the touch-stone of
\nlaw relating to circumstantial evidence laid down by the this Court as
\nfar back as in 1952.\n<\/p>\n
In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh,
\n(AIR<\/a> 1952 SC 343), wherein it was observed thus:
\n“It is well to remember that in cases where
\nthe evidence is of a circumstantial nature, the
\ncircumstances from which the conclusion of guilt is
\nto be drawn should be in the first instance be fully
\nestablished and all the facts so established should
\nbe consistent only with the hypothesis of the guilt
\nof the accused.  Again, the circumstances should be
\nof a conclusive nature and tendency and they should
\nbe such as to exclude every hypothesis but the one
\nproposed to be proved. In other words, there must be
\na chain of evidence so far complete as not to leave
\nany reasonable ground for a conclusion consistent
\nwith the innocence of the accused and it must be such
\nas to show that within all human probability the act
\nmust have been done by the accused.”\n<\/p>\n
\tA reference may be made to a later decision in Sharad Birdhichand
\nSarda v. State of Maharashtra, (AIR<\/a> 1984 SC 1622).  Therein, while
\ndealing with circumstantial evidence, it has been held that onus was on
\nthe prosecution to prove that the chain is complete and the infirmity of
\nlacuna in prosecution cannot be cured by false defence or plea.  The
\nconditions precedent in the words of this Court, before conviction could
\nbe based on circumstantial evidence, must be fully established. They
\nare:\n<\/p>\n
(1)\tthe circumstances from which the conclusion of
\nguilt is to be drawn should be fully established.  The
\ncircumstances concerned ‘must’ or ‘should’ and not
\n‘may be’ established;\n<\/p>\n
(2)\tthe facts so established should be consistent
\nonly with the hypothesis of the guilt of the accused,
\nthat is to say, they should not be explainable on any
\nother hypothesis except that the accused is guilty;
\n(3)\tthe circumstances should be of a conclusive
\nnature and tendency;\n<\/p>\n
(4)\tthey should exclude every possible hypothesis
\nexcept the one to be proved; and
\n(5)\tthere must be a chain of evidence so complete as
\nnot to leave any reasonable ground for the conclusion
\nconsistent with the innocence of the accused and must
\nshow that in all human probability the act must have
\nbeen done by the accused.\n<\/p>\n
These aspects were recently highlighted in State of Rajasthan v.
\nRajaram<\/a> (2003 AIR SCW 4097)<\/p>\n
We shall examine the circumstances highlighted. So far as ransom
\nnotes are concerned, prosecution sought to rely upon the report given by
\nthe handwriting expert.  It appears that the accused was taken before
\nAddl. Chief Judicial Magistrate, Bhiwani.  According to him, on
\n10.9.1991 the accused was brought before him in custody for giving his
\nspecimen signature under Section 73 of the Evidence Act. It was noticed
\nby this Court in State of Uttar Pradesh v. Ram Babu Misra AIR<\/a> 1980 SC\n<\/p>\n
791) that the Chief Judicial Magistrate has no power to direct the
\naccused to give his specimen signature for comparison during
\ninvestigation. Section 73 of the Evidence Act reads as follows:\n<\/p>\n
 “Section 73- Comparison of signature, writing or
\nseal with others admitted or proved: In order to
\nascertain whether a signature, writing, or seal is
\nthat of the person by whom it purports to have been
\nwritten or made, any signature, writing, or seal
\nadmitted or proved to the satisfaction of the Court
\nto have been written or made by that person may be
\ncompared with the one which is to be proved, although
\nthat signature, writing, or seal has not been
\nproduced or proved for any other purpose.\n<\/p>\n
\tThe Court may direct any person present in
\ncourt to write any words or figures for the purpose
\nof enabling the Court to compare the words or figures
\nso written with any words or figures alleged to have
\nbeen written by such person.\n<\/p>\n
\tThis section also applies, with any necessary
\nmodifications, to finger-impressions”.\n<\/p>\n
The second paragraph of Section 73 enables the Court to direct any
\nperson present in the Court to give specimen writings ‘for the purpose
\nof enabling the Court to compare’ such writings with writings alleged to
\nhave been written by such person.  The clear implication of the words
\n‘for the purpose of enabling the Court to compare’ is that there is some
\nproceeding before the Court in which or as a consequence of which it
\nmight be necessary for the Court to compare such writings.  The
\ndirection is to be given for the purpose of enabling the Court to
\ncompare and not for the purpose of enabling the investigating or other
\nagency ‘to compare’.  If the case is still under investigation there is
\nno present proceeding before the Court in which or as a consequence of
\nwhich it might be necessary to compare the writings.  The language of
\nSection 73 does not permit a court to give a direction to the accused to
\ngive specimen writings for anticipated necessity for comparison in a
\nproceeding which may later be instituted in the Court.\n<\/p>\n
In order to enable exercise of power under Section 73, the
\npendency of a proceeding before the Court is the sine qua non.
\nTherefore, the comparison of the signature on the alleged ransom note in
\nno way helps the prosecution.\n<\/p>\n
 Great emphasis was laid by learned counsel for the State on the
\nevidence of PW-4, the Addl. CJM that accused had admitted that the
\nsignature was his.  This statement is of no assistance. The witness has
\nadmitted that the statement was made before him by the accused in the
\npresence of police officials. The second circumstance is the alleged
\nextra judicial confession before PW-10.  The High Court has analysed the
\nevidence in great detail.  It is on record that the accused-Jagbir was
\nbeing taken to various places and at different points of time he was
\nbeing pressurized to make statement.  Though the accused was claimed to
\nhave made the statement in the presence of large number of persons, a
\ncombined reading of the evidence shows that nobody else speaks about the
\nso-called extra judicial confession, not even those who have been
\nexamined as PWs. Though PW10 said that there were many persons who had
\nheard it, no other person has stated about it.  The statement of PWs 7
\nand 10 goes to show that accused was being interrogated by PWs and other
\nvillagers as well as his father and other relatives. Interrogation
\ncontinued for about 3 days when allegedly Jagbir confessed his guilt.
\nThough the First Information Report was lodged by PW7 after knowing
\nabout the extra judicial confession, there is no mention about this
\nvital fact.  In a given circumstance, omission to mention about the
\nparticular aspect may not render prosecution version suspicious. But
\nwhen   circumstances in the present case are taken in the entirety
\nalleged extra judicial confession is not believable.  In order to make
\nan extra judicial confession a reliable evidence it has to be shown that
\nthe same was voluntary.  The factual scenario as presented by the
\nprosecution goes to show that the alleged extra judicial confession
\ncannot be termed to be voluntary even if it was said to have been made,
\nas claimed.  The High Court was right in discarding the alleged extra
\njudicial confession.\n<\/p>\n
 What remains now to be seen is whether the recovery of the dead
\nbody from the premises of accused establishes prosecution version.
\nAccording to the prosecution when the Panchayat gave time to the accused
\nto produce the boy alive or dead, he accepted that the dead body was
\nburied in his compound. The accused dug the land and on seeing leg of
\nthe dead body they stopped digging and went to the police.  The High
\nCourt has found that prosecution claimed that the two accused were
\narrested by the Sub Inspector Mahender Singh Bhatti (PW 12) on 9.9.1995
\non the culvert of Jai Canal about 8.00 p.m. in the presence of one
\nChatter Singh and Om Parkash.  However, Om Parkash (PW 10) has denied
\nabout the arrest of the accused by PW12 near canal.  From the statement
\nof PW12, it appears that the accused persons after their arrest made
\ndisclosure of the statement about ransom, concealment of the dead body
\nand that the dead body recovered in the presence of aforesaid Chatter
\nSingh and Om Parkash (PW10). It is belied by the statement of Om Parkash
\n(PW10).  According to this witness, when the accused made a voluntary
\nstatement in the presence of many others he pointed out where the body
\nwas buried. They went to the police station where they met PW12 and told
\nhim about finding the dead body.  PW10 told him that dead body was to be
\nhanded over to Sr. S.P. or the Dy. S.P. Evidence of PW10 further shows
\nthat PW.12 accompanied by another ASI and other police officials went to
\nthe village. There many people had assembled and as the villagers
\nstarted shouting and agitating that led to altercation; both the accused
\nwere arrested by the Dy.S.P.  Thereafter it is stated that the accused-
\nJagbir made a disclosure statement, where he (PW10) and Chatter Singh
\nwere stated to be eyewitnesses.  One thing is clear that there are
\nunexplained contradictions about the place where the accused were
\narrested and manner of recovery.  Since the dead body was recovered on
\nthe basis of information already known, Section 27 of the Evidence Act
\nhas no application.  As observed by this Court in Aher Raja Khima v.
\nState of Saurashtra (AIR<\/a> 1956 SC 217), if a recovery of the
\nincriminating articles alleged to have been made by the  accused while
\nin custody is inadmissible in evidence if the police already known where
\nthey were hidden. That takes the case out the purview of Section 27 of
\nthe Evidence Act.\n<\/p>\n
  However, if a witness can be believed that in his  presence the
\naccused person gave recovery of something (of course while not in police
\ncustody) it may be a suspicious circumstance, de hors Section 27 of the
\nEvidence Act. But, as noted above, the High Court has analysed the
\nevidence in the present case in great detail to find the evidence to be
\ncontradictory and unacceptable in relation to extra judicial confession
\nand alleged recovery. That being so, the High Court’s conclusion cannot
\nbe faulted.\n<\/p>\n
 Looked from any angle the judgment of the High Court does not
\nsuffer from any infirmity which warrants interference.\n<\/p>\n
It is true that an innocent child has lost his life and there may
\nbe some truth about deficiency in the evidence collection mode. But the
\ncourt can act on the evidence brought before it. Even though the
\ninvestigation may not be entirely blemishless, at the same time when the
\nmaterial brought on record is insufficient, the course  adopted by the
\nHigh Court cannot be faulted.  It does not appear that before the Trial
\nCourt or the High Court any grievance was made regarding remiss in
\ninvestigation or not making investigation in the right direction.\n<\/p>\n
The appeals are without merit and deserve dismissal, which we
\ndirect.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Haryana vs Jagbir Singh And Anr on 26 September, 2003 Author: A Pasayat Bench: Doraiswamy Raju, Arijit Pasayat. CASE NO.: Appeal (crl.) 1721 of 1996 PETITIONER: State of Haryana RESPONDENT: Jagbir Singh and Anr. DATE OF JUDGMENT: 26\/09\/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT. JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-217303","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Haryana vs Jagbir Singh And Anr on 26 September, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-vs-jagbir-singh-and-anr-on-26-september-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Haryana vs Jagbir Singh And Anr on 26 September, 2003 - 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