BALWINDER SINGHversusSTATE OF PUNJAB

A                             BALWINDER SINGH
                                     v.
                              STATE OF PUNJAB

                               NOVEMBER 9, 1995

B                    [DR. AS. ANAND AND S.C. SEN, JJ.]

          Indian Penal Code, 186()-Secti<ms 302 and 201-Conviction for of-
    fence under-Legality of-No direct evidence-circumstantial evidence-Not          ·i
    established-Delay of 5 days in lodging FIR-Conviction not legally sus-
C   tainable.

          Indian Evidence Act, 1872:

         Evidence-Murder case-circumstantial evidence-conviction based
    on-Sustainability.
D
          Extra Judicial Confession-Weak type of evidence--lndependent cor-
    roboration required to rely upon it.

          The appellant was convicted for offences u/ss 302/201 Indian Penal
    Code and sentenced to suffer imprisonment for life with a fine of Rs. 2,000.
E   The prosecution ca~_was that the appellant and his mother conspired to
    put an end to the life of his two daughters R & P aged about 7 years and
    2 1/2 years and the appellant took away both the daughters stating to his
    wife that he would return only after killing them. The dead body of one
    daughter R was recovered from a canal. The other daughter, however, was
F   not found either dea~ or alive. During the investigation the police took into
    possession some bones and bangles from the place where the dead body
    was cremated on the basis of a disclosure statement made by the appellant.
    Appellant and his mother were charged for an offence under Section 120-B
    IPC, for conspiring to commit the murder of R & P. The appellant was
    also charged for an offence u/s 302/201 IPC for committing the murder of
G   his daughter and cremating her dead body to screen himself from the
    offence. He was also charged for an offence u/s. 302 IPC for the murder
    of his second daughter P. The Trial Court found that the charge of
    conspiracy u/s 120-B was not established and consequently both the appel-
    lant and his mother were acquitted of the said charge. The Court held that
H   the charge against the appellant for an offence u/s. 302 for committing the
                                         10
                             BALWINDERSINGH v. STATE                              11

--- '    . murder of P had also not been established and therefore acquitted the        A
           appellant of the said charge while convicting and sentencing him for the
           offences u/s 302/201 for the murder of R.

                This appeal u/s 14 of the Terrorist Affected Areas (Special Courts)
          Act, 1984, had been filed against the judgment of his conviction and
          sentence.
                                                                                        B

                 The appellant denied the prosecution allegation and stated that he
          had been falsely implicated. There was no direct evidence in the case and
          the prosecution relied upon the circumstantial evidence to connect the
          appellant with the crime. The circumstances relied on were the evidence of    C
          'last seen together' based on the evidence of PW2, PW4 and PWS; extra
          judicial confession made by the appellant to PW-3; the recovery of dead
          body of R from the canal and its claim by the appellant and 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 R.
                                                                                        D
                Allowing the appeal, this Court
    ••           HELD : 1.1. In a case based on circumstantial 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 E
          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
          circumstantial 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 F
   ·~
   ;
          to avoid the danger of being swayed by emotional considerations, howsoever
          strong they may be, to take the place of proof. [16-H; 17-A-B]

                1.2. In the instant case none of the four circumstances relied upon by
          the prosecution to connect the appellant with the crime had been estab- G
          lished by the prosecution. The Trial Court was not justified in convicting
          the appellant for the offence u/s 302/201. PW-2, 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. She stated that the appellant and his mother conspired to do away
          with her two daughters because they considered the birth of the female to H
    12                    SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A be a curse; that the appellant took away both the daughters stating that he
    would return only after killing them; that on the next day her mother in law
    informed her that her daughters had been killed by the appellant and
                                                                                    ---
    thrown in the canal and when the appellant returned to the house, he
    disclosed to her that he had killed both the daughters and had cremated R.
    During her cross-examination she admitted that she had never earlier
B   complained about the quarrels or the beatings given to her by the appellant
    and his mother to anyone. In her statement recorded u/s 161 Criminal
    Procedure Code, also the cause of quarrel had not been stated by her. She
    did not report the matter to the police nor even informed her parents about
    the murder of the children for about 4 days. This conduct was rather
c   unnatural for a mother, keeping in view the earlier quarrels. The prosecu-
    tion sought corroboration of the evidence relating to the taking away of the
    two daughters by the appellant as deposed to by PW2 from the statement
    of PW-4 and PW-5. The Trial Court did not place any reliance upon the
    statement of PW4 because of the material contradiction between her tes-
    timony and the statement of PW-2. The evidence of PWS father-in-law of
D   sister of appellant did not inspire confidence. He deposed against the
    appellant because of his strained relations with appellant's sister. [17-D-H,
    18-A-C]

          There was a delay of 5 days in lodging the first information report.
    The delay was utilized by the complainant party in introducing interested
E
    witnesses like PW4 and PWS in the case. Their testimony could afford no
    corroboration to the otherwise untrustworthy testimony of PW2. The Trial
    Court erred in relying upon the statement of PW2 and PWS, ignoring the
    basic infirmities in their evidence and overlooking the delay in lodging of
    the FIR. The prosecution failed to establish that the appellant had taken
F   away his two daughter~ in the manner alleged by it. The evidence to estab-
    lish the circumstances of 'last seen together' had not been established
    beyond a reasonable doubt. [23-F; 17-D-H; 18-A-B; E; 19-A; B; 20-D-E]

          1.3. An extra-judicial confession by its very nature is rather a weak
    type of evidence and requires appreciation with great deal of care and
G   caution. Where an extra-judicial 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. [20-G]

H         The Trial Court relied upon the extra-judicial confession allegedly
                         BALWINDERSINGH v. STATE                               13


--   made by the appellant to PW-3 to the effect that Ile had killed his daughters A
     and had cremated the dead body of R, 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 disclosing
     statement allegedly made by the appellant leading to the recovery of the
     bones from the place behind Gurdwara, besides the statement of PW-2 .
                                                                                   .B
                                                                      [20-H, 21-A]
            PW-3 claimed to be the Pardhan of the area and stated that she was
     a social worker. According to her disposition, the appellant had made an
     extra judicial confession to her when she visited his house on learning from
     the neighbours that the appellant had killed his daughter. PW 3, however,
     lodged the complaint with the police only after a delay of three days. In
                                                                                     c
     view of the hostility which the appellant had with PW3, for leading his wife
     estray, it was difficult to accept that the appellant could have made any
     extra judicial confession to her. The manner in which the judicial confes-
     sion was alleged to have been made and the silence of PW3 for three days
     in disclosing the same to the police, even though she had admittedly been D
     with the police regarding some other case, rendered it unsafe to reply upon
     her statement. This unexplained long delay in lodging the first information
     report detracts materially from the reliability of the prosecution case in
     general and the testimony of PW3 in particular. [21-B, G]

          The alleged extra judicial confession was surrounded by suspicious
                                                                                     E
     circumstances and the prosecution had not been able to establish that the
     appellant had made any extra judicial confession to PW3 and therefore this
     circumstance remained unestablished. [20-F-H; 21-A-C; F-H; 22-H; 23-A]

           1.4. Even the third circumstance relating to the recovery of the dead     F
     body, it being claimed by the appellant and its subsequent cremation by
     him had remained unestablished. The two witnesses relied upon were PW6
     and PW7. Neither PW6 nor PW7 knew the appellant from before. No
     identification parade was held to identify the appellant as the person who
     had approached PW6 and PW7 and had claimed the dead body to be that
     of his daughter. It was incumbent upon the prosecution to have held an          G
     identification parade for proper identification of the appellant by these two
     witnesses. No explanation had been given for not holding such a parade.
     The identification of the appellant by PW6 and PW7, as the person who
     had claimed the dead bod,", in court, about 9 months later, in the absence
     of any earlier identification, was not sufficient to hold that the appellant    H
    14                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A   had claimed the dead body to be that of his child. The evidence being of a
    doubtful nature had to be ruled out of consideration to connect the
    appellant with the crime. [22-C; H; 23-A-C]

           1.5. The last circumstance of the disclosure statement of the appel-
    lant, leading to the recovery of the bones of the deceased was not estab-
B   lished. The Trial Court was justified in ruling out of consideration the
    disclosure statement and the consequent recovery of the bones as PW 2
    had already visited the place of cremation much before the case was
    registered and that bones were taken into possession from the alleged
    place of cremation which was an open place. The prosecution evidence was
C   not specific as to whether even the bones recovered were those of deceased
    R. The witnesses to the recovery of the bones were withheld and not
    produced at the trial. These infirmities created a doubt about the correct-
    ness of the prosecution case regarding the making of any disclosure
    statement by the appellant. [23-E-F]

D         From the very opening sentence of the judgment of the Trial Court,
    it appeared that the Trial Court got swayed by emotional consideration
    and allowed suspicion, surmises and conjectures to take the place of legal
    proof. Conviction recorded was unsustainable. [24-C-D; F]

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
E   192of1985.

          From the Judgment and Order dated 31.1.85 of the Special Court,
    Patiala in S.C.No. UP of August 8, 1984.

          Goodwill Indeevar for the Appellant.
F
          Mrs. Arnita Gupta, R.L. Deo and R.S. Suri for the Respondent.

          The Judgment of the Court was delivered by

       DR. ANAND, J. The appellant on conviction by the learned Judge,
G Special Court, Patiala for offences under Section 302/201 IPC was sen-
    tenced 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. Though this appeal
H   under Section 14 of the Terrorist Affected Areas (Special Courts) Act,
                BALWINDERSINGH v. STATE[DR.ANAND,J.]                          15

     1984, he has questioned his conviction and sentence.                           A

            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 respective~y were born out of     B
     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 Tajinder Kaur on that
     account, who was also given beating by the a.ppellant 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        C
     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      D
     house of the appellant and informed Tajinder 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
     r m. when he went there to ease himself. The dead body was taken out but       E
     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        F
     worker and a neighbour of the appellant and Tejinder Kaur PW-2 on
     corning to know about the murders from the neighbours and from an
,'
     extra-judicial confession made by the appellant to her that he had mur-
     dered the girls and cremated the dead body of Rosy 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     G
     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      H
    16                    SUPREME COURT REPORTS (1995) SUPP. 5 S.C.R.

A   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
B
    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 murdf!r of Pinky had also not been established
c   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 313 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
D   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 -0wn and when he and his mother Ajmer Kaur after ·search
E   did not find the~, 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 circumstan-
F
    ces to connect the appellant with the crime in the 1:rial Court :

          (i) The evidence of "last seen together" based on the evidence of
  PW-2, Tejinder Kaur, Balwant Kaur;-fW-4 and of Mohinder Singh, PW-5;
  (ii) Extra-judicial confession 'made by the appellant to PW- 3. Satya Walia.
G (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.

H         In a case based on circumstancial evidence, it is now well settled that
                BALWINDERSINGH v: STATE[DR.ANAND,J.)                            17

     the circumstances from which the conclusion of guilt is to be drawn should       A
     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 cir-
     cumstances should be consistent only-with the hypothesis of the guilt of the
     accused and totally inconsistent with his innocence. In a case based on          B


--
     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.                                                                 c
     (i) Last seen together

            PW-2 Tejinder Kaur, wife of the appellant deposed about the quar-
     rels between her on the one side and the appellant and his mother on the D
     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, \Jecause 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 E
     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 F
     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 G

·•   Rozy behind the Gurdwara Rara Saheb and that the dead body of Pinky
     had not been found. On hearir:g this news, she started crying. Satya Walia,
     PW3 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 H
    18                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A   complained about the quarrels or the beatings given to her by the appellant
    and his mother to anyone exept 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
B
    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 received from
c   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.
D
          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
E   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
F   "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
                                                                                              b·
G   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
                                                                                    ·-
H   had visited his house on 18.3.84 at about 4.00 or 4.30 p.m. alongwith his
---
                          BALWINDER SINGH v. STATE [DR. ANAND, J.]                     19

:l             daughters Pinky and Rozy and after taking tea had left the house informing A
~              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
     ._,       residing separately from him and that he was not having good relations with
               his daughter-in-law, sister of the appellant.
                                                                                             B
                     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    c
               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 D
               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 PW-3, 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 E
               declarations made by the appellant of his intention to kill the daughters on
               18.3.1984 itself. PW-2 also admitted in her cross-examination 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 F
               killed them and thrown the dead bodies in the canal is not at all under-
               standable? 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 prosecu-
                                                                                            G
               tion case. PW-2 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 compliant with the police or inform anyone about it. PW-2
               could give no explanation for her silence. The evidence of PW-5, Mohinder H
    20                     SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A   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 asferted 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 Ma~ch 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
B   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 DW-1
    have remained unchallenged. There was, thus, no occasion for the appel-
    lant 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
c   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-in-law DW-1 Mohinder Kaur, possibly because of his strai!led
    relations with her. It appears to us that the delay in lodging the first
D   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
                                                                                      t
    case. We are not impressed by their statements and find that the same can
    afford no corroboration to the qtherwise 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
E   overlooking the delay in the lodging of the FIR. The prosecution has 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.
F   (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 extra judicial confession is surrounded by suspicious circumstan-
G   ces 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
H   his daughters and had cremated the dead body of Rozy, to connect the
                 BALWINDERSINGH v. STATE[DR.ANAND,J.]                          21
 .,
      appellant with the crime. It found corroboration of the statement of PW-3     A
      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 Mahalia Preet Nagar and states B
      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
                                                                                    c
      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 connec-
      tion 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 D
      after 22.3.84, when PW-2 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 PW-3.


            Again, according to PW-3 when she met PW-2 and her mother-in-law E
      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 F
      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 PW-3, 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 G
      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 sur- H
    22                   SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A   rounded by suspicious circumstances 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) Recove1y of a dead body and its claim by the appellant as that of Rozy.

B          Though with the ruling out of the circumstances 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
C   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 ease himself, he noticed dead body of a female child in the canal. Tej
D Singh Panch, Santosh 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           f
  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 identity 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
E 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
F 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
G 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.
H No identification parade was held to identify the appellant as the person
           BALWINDERSINGH v. STATE[DR.ANAND,J.]                       23

who had approached PW-6 and PW-7 and had claimed the dead body to A
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 holdine such
a parade. The identification of the appellant by PW-6 and PW-7, as the B
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 C
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 considera-
tion to connect the appellant with the crime.
                                                                           D
(iv) Disclosure statement :

       The last circumst.ance relied upon by the prosecution is the dis-
closure 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 E
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 F
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 G
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 H
    24                   SUPREME COURT REPORTS (1995] SUPP.5 S.C.R.

A   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 bangles. The
B   bangles which were recovered from the place of dremation 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
c   alleged to have been made by the appellant, as per the evidence of ASI
    Iqbal Singh PW were not exa.mined 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
D   circumstance also, therefore, has not been established by the prosecution.

          From the above discussion it emerges that none of the four cir-
    cumstances 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
E   the conclusion that the Trial Court was not justified in convicting and
    sentencing the appellant for the offence under Section 302/201 lPC. 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
p   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 conjec-
    tures to take the place of legal proof.

G         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 dis-
    charged.

    R.A.                                                       Appeal allowed.