Holding

The conviction cannot be sustained as the circumstantial evidence does not establish guilt beyond reasonable doubt; the appeal is allowed and the appellant is acquitted.

Summary

Bhalinder Singh was convicted of murder, kidnapping and abetment of suicide based solely on circumstantial evidence, including a claim that he was last seen with the deceased, the recovery of the victim's shoes, an extra‑judicial confession to the village sarpanch, and a false explanation to the victim's father. The Supreme Court examined the reliability of each circumstance, finding the police investigation tainted, the sarpanch’s confession unreliable due to enmity, the shoe recovery fabricated, and the false explanation inadmissible because it was not recorded under Section 313 of the CrPC. The Court held that the prosecution failed to establish a case that could stand on its own and that the weakness of the defence could not be used against the accused. Consequently, the circumstantial evidence did not prove guilt beyond reasonable doubt, and the conviction was set aside, resulting in the appellant's acquittal.

Issues considered

Whether the circumstantial evidence presented was sufficient to sustain a conviction under Sections 302, 364 and 201 IPC.
Whether an extra‑judicial confession made to a village sarpanch is admissible and reliable.
Whether the recovery of the victim's shoes, based on the appellant's disclosure statement, can be trusted as evidence.
Whether a false explanation given by the accused, not recorded under Section 313 CrPC, can be used against him.
Whether flaws in the police investigation affect the validity of the conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 201, s. 302, s. 364

Subjects

circumstantial evidenceextra‑judicial confessionfalse explanationSection 313 CrPCmurderacquittalpolice investigationevidence fabrication

Judgment

BHALINDER SINGH @ RAJU A
v.
STATE OF PUNJAB

DECEMBER 16, 1993

[DR. AS. ANAND AND FAIZAN UDDIN, JJ.) B

Indian Penal Code 1860-S.302-qrcumstantial evidenc~Apprecia-
tion of~eld: must lead only to the hypothesis of the guilt of the accused
and should not be inconsistent with the innocence of the accused-The
prosecution must establish its case which must stand on its own legs-The C
weakness of the defence cannot be used as a circumstance in favour of the.
prosecution.

Code of Criminal Procedure 1973-S.313-A false explanation given by
the accused about his innocence cannot be used against the accused unless
put to him in his statement recorded under S.313 of the Criminal Procedure D
Code.

The prosecution alleged that the deceased has gone out with the
accused/appellants one evening in the presence of the father of the
deceased. One H also saw the Appellant and the deceased proceeding E
together towards the Bhakra Canal. G also saw the Accused and the
deceased taking liquor together later. D also saw the accused and the
deceased sitting on the bank of Bhakra Canal. Five days later an FIR about
the missing deceased was lodged by the father of the deceased. The body
of the deceased was recovered from the Bhakra Canal. The appe_llant was
traced only two days after the discovery of the body and is said to have F'
made a disclosure statement leading to certain recovery: He was also said
to have made an extra judicial confession to the Sarpanch of the village~
On the basis of the circumstantial evidence the appellant was convicted by
the trial court to imprisonment for life and the High Court affirmed the
sentence. Hence this appeal. G
Allowing the appeal, this Court

HELD : 1. The prosecution was unable to explain how the Police
started the search for the appellant on 9.7.1986 when there was no infor·
mation lodged with the Police prior to 13·7·1986 about the absence of the H
989
990 SUPREME COU.RT REPORTS [1993] SUPP. 3 S.C.R~

A deceased. Investigation is tainted as the investigating Officer has not come
out with all the facts and the evidence ,on record concealed more than it
revealed. (992-H & 993-C)

2. The extra judicial confession to the Sarpanch is also unreliable in
view of the admitted enmity of the sarpanch with the family of the accused.
B. [999-E-F]
3. The recovery of the shoes has not been established and the
Investigating Officer appears to have fabricated evidence and created false
Clues. (994-D]

C 4.The false explanation given. by the accused could not be used
against him because it was not put to him in his statement recorded under
S.313 Criminal Procedure Code. (994-G]

5. The prosecution could not seek conviction on the weakness of the
defence ca.se but had to establish its own case capable of standing on its
D own legs. (994-GJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
635 of1993 .

.E From the Judgment and Order dated 17.8.1990 of the High Court of
Punjab & Haryana in Crl. Appeal No. 284-DB of 1988.

Uijagar Singh, A.O. Sikri and Ms. Naresh Bakshi for the Appellant.

Ranbir Yadav and R.S. Suri for the Respondent.
F The following Order of this Court was delivered :

This appeal by special leave is directed against the judgment of the
High Court of Punjab and Haryana at Chandigarh upholding the conviction
and sentence of the appellant for offences under Sections 302/364/201
G l.P.C.
The appellant alongwith Kulwant Singh, Sinder Singh and Piara
Singh were tried by the Additional Sessions Judge, Patiala for the af9resaid . ·
. , offeil~. By judgment dated 23rd July,. 1988 the appellant Was convicted,
and sentenced to serve life imprisonment arid a fine of Rs. 2,000 under
H Section 302 IPC. In default of payment of fine, he was further sentenced
B. SINGH v. STATE OF PUNJAB 991

to 1 year rigorous imprisonment. Under Section 364 IPC, he was sentenced A
to 10 years rigorous imprisonment and a fine of Rs. 1,000 and in default ·
to suffer 1 year rigorous imprisonment. For the offence under Section 201
IPC, he was awarded 7 years rigorous imprisonment and a fine of Rs. 500
and in default 3 months rigorous imprisonment. The substantive sentences
were to run concurrently while the three co-accused were acquitted. No B
appeal was filed in the High Court against the acquittal of the three
co-accused. The appellant's appeal before the High Court against his
conviction and sentence failed.

There is no eye-witness in this case. The case is based on circumstan-
tial evidence. The four circumstances relied upon by the prosecution before C
the Trial Court and the High Court were as follows : ·

(1) Last seen together.

(2) Recovery of the shoes of the deceased at the instance of the
•· appellant pursuant to a statement under Section 27 of the D
Evidence Act besides recovery of empty liquor bottles and a :;
glass.

(3) Extrajlidicial confesSions made before Sarpanch of the yillage
on 16.7.86.
E
(4) A false explanation given by the appellant to the father of the
deceased. When he went looking for his son on the night of
the occurrence.

Reliance was also placed on the alleged motive and the absconding
of the appellant but both were found to be feeble pieces of evidence and · F
not given much credence.

According to the prosecution case the deceased Tarsem Singh •ad
returned to the house after doing the masonarv work in the house of
Mukhtiar Singh ~t about 7.30 p.m. on 8.7.86 His father Kaka Singh was
present at the House. The appellant is alleged to have gone to the house G
of Kaka Singh and called the deceased and both of them went out of his
house together. At about 7.30 p.m. ·on the same date.' ie. on 8.7.86.
Harbhagwan. PW 4, saw the appellant and the deceased proceeding &om
the house of the deceased towards the Bhakra Canal. The accused and the
deceased were also seen together taking liquor by Gurmail Singh PW S at H
992 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A about 8.00 p.m. At about 8.45 p.m. Devi Dayal PW 6 saw the deceased and
the accused sitting on the bank ~f Bhakra Canal. When the deceased did
not return home, his father Kaka Singh, PW 2, started making enquiries
about him and went to the house of the appellant. On enquiry he was told
that the appellant might have gone somewhere and would shortly return to
B the houS'e. It is then the p·roc;ecution case that the father of the deceased
Kaka Singh. PW 2, continued search for his sou but to no avail and then
on 13.7.86, he lodged the First Information Report, Exhibit PG. for an
offence under Section 364 IPC. The police party' swung into action and the
dead body of the deceased was recovered from the canal on 15.7.86. The
appellant was searched for but was not traceable till 15.7.1986. Sub-
C sequently, the appellant is alleged to have mude a disclosure statement
leading to the recovery of two empty liquor bottles and a glass from behind
the bushes which were sealed and sent to Malkhana. The appellant is also
alleged to have made an extra judicial confession before Parampal Singh,
PW 12. Sarpanch of the village, confessing the guilt. The appellant after
D his arrest made a disclosure statement under Section 27 of the Evidence ...
Act leading to the recovery of a pair of shoes Guti) which wer~ identified
by Kaka Singh, PW 2. father qf the deceased, as belonging to the deceased.
According to the medical evidence, the deceased died of strangulation
(asphyxia) and alcohol was found in the blood samples.

E So far as the circumstantial evidence is concerned. We find not only
that none of the circumstance have been established beyond a reasonable
doubt but also that all the circumstances, even taken together, do not lead
only to the hypothesis of the guilt of the appellant and are not inconsistent
with the theory of his innocence. We proceed to give our reasons for this
F opinion.

Though, according to the prosecution the father of the deceased,
Kaka Singh PW 2, he lodged the First Information Report on 13.7.86 and
we also have it from the evidence of PW 19 ASI Mukhtiar Singh 1.0. that
between 5.7.86 and 13.7.86 no one had given him any information about
G the missing of Tarsem Singh, deceased or the occurrence, yet during his
cross-examination. PW 2 Kaka Singh admitted that the police had started
search for his missing son on 9.7.86. Prosecution has been unable to explain
how the police started the search for the deceased on 9.7.86, if no infor-
mation whatsoever either about the missing of the deceased or the com-
H mission of any offence relating to the deceased had been brought to the
B. SINGH v. STATE OF PUNJAB 993

notice of the ASI Mukhtiar Singh between 5.7.86 and 13.7.86. Obviously, A
the investigating officer has tried to conceal certain facts which expose
tainted nature of the investigation. Thal apart, during his cross-examina-
tion. Babu Singh PW 8 deposed that he had seen the appellant alongwith
his co-accused behind the bars at the police station on 8.7.1986 at about
9/10 a.m. There is no explanation from the prosecution side about this
testimony. The testimony of Kaka Singh PW 2, who admitted that he had
B
been to the police station twice after 8.7.86 and that on 9.7.86, the police
started search of his son when considered with the evidence of Harbhag-
wan. PW 4, Gurmail Singh PW 5, Devi, Dayal PW 6, Babu Singh PW 8
and the evidence of the investigation officer Mukhtiar Singh PW 19 has
created an impression on our minds that the prosecution has not come out C
with all the facts and the evidence on the record conceals more than what
it reveals. Thus, the circumstances of last seen together has not been
established and is even otherwise not sufficient to connect the appellant
with the crime. No explanation has been furnished by the prosecution for
the silence of PW 4, PW 5, PW 6 and PW 8 till after the body was recovered D
even though they all belong to tht: same village and are known to the family
of the deceased.

We are also not impressed with the alleged circumstance relating to
the extra judicial confession allegedly made by the appellant before PW 12
Parampal Singh Sarpanch of the village on 16.7.1986. It is admitted by PW E
12 that he had contested the election, during the Gram Panchayat elections,
against the cousin of the appellant who however, had got defeated. He also

- ....
admitted that he !1id not attend the cremation of the deceased or even
participate in the Bhog ceremony held on 17.7.1986. PW 12 admitted that
he did not have any friendly relation with the family of the appellant,
because they belonged to two rival parties. In the state of affairs, we find F
it difficult to accept that the accused would have gone to PW 12 who was
. inimically deposed towards his family to make an extra judicial confession .
This circumstance, therefore, in our opinion has not been established
beyond a reasonable doubt and \Ve cannot place any reliance on the same.
G
So far as the recovery of the pair of shoes is concerned, it appears
to be a very clumsy piece of evidence. According to the investigating
officer, the shoes were recovered pursuant to a disclosure statement made
by the appellant Exhibit PW 12/C, from the bushes near the mosque in the
village and those shoes were taken into possession vide recovery memo
Exhibit PW 12/F. The shoes were made into a parcel and sealed and H
994 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R. ----
A d~posited in the Malkhana by the Head Constable, Mohinder Singh. Raka
Singh, PW 2. However identified the shoes at the Police Station. It is
interesting to note his deposition in his behalf. He stated :

"In 9/86. I went to P.S. Mulepur where SJ. was sitting, Sarpanch
of village Patarsi also came in that room. ASI Mukhtiar Singh
B asked me to identify the pair of shoes of my son from amongst 3-4
other pairs of shoes. All the pairs of shoes were lying in the office ,.:.
room of S.l./SHO. No body was present when I entered the room
of S.l./SHO to identify the shoes. I identified the shoes of my son
in the presence of Sarpanch of village Patarsi, (At this stage a pair
c of shoes has been taken out of a piece of cloth and witness says
that these shoes i.e. this pair of Juti Ex P.6/1-2 pertained to his
son Tarsem Singh· deceased. (Parcel out of which this pair of Juti
has been taken out now is not sealed and it was lying open from
its mouth).
"~

D The above statement of Kaka Singh PW 12, exposes the hollowness
' of the recovery and we have no hesitation to say that the circumstance
relating to the recovery of the shoes has not only not been established but
also that the investigating officer appears to have fabricated this evidence
and created false clues. We rule it out of consideration.
E
The recovery of empty bottles and the glass, without any finger prints
either of the deceased or the accused on those bottles is hardly of any
consequence and we need not detain ourselves to examine that cir-
)._""
cumstance in any detail.
F So far as the last piece of circumstantial evidence about the alleged
false explanation of the appellant is concerned, suffice it to say that it
cannot be used against the appellant, not only for the reason that it was .
not put to him in his statement recorded under Section 313 CR. P.C. but
also for the reasons that the mere false explanation, assuming that it was
G given by the appellant, cannot become basis for conviction of the appellant.
The prosecution has to establish its case and stand on its own legs. ~
Weakness of the defence cannot be used as a circumstance in favour of the
prosecution.

H Tiius· we find that none of the circumstances relied UJ>(>ll by the
B. SINGH v. STATE OF PUNJAB 995

prosecution have been established in the case beyond a reasonable doubt A
and the chain of the circumstantial evidence is so incomplete that it cannot
justify the conviction of the appellant at all. The courts below were clearly
in error in accepting the circumstantial evidence and convicting appellant
on the basis of such flimsy evidence. We accordingly accept this appeal and
set aside the conviction and sentence of the appellant and acquit him of B
all the charges.

The appeal is all'?wed accordingly.

M.M. Appeal allowed.