MAKHAN SINGHversusSTATE OF PUNJAB

                           MAKHAN SINGH
                                                                             A
                                     v.
                          STATE OF PUNJAB


                             JULY 2 7, 1988


         [G.L. OZA AND K. JAGANNATHA SHETTY, JJ.]                            B


     Indian Penal Code, 1860: ss. 201 & 302-Murder-Conviction
based on circumstancial evidence-Held, charge not proved beyond
doubt.

     Evidence Act, 1872: ss. 24 & 27: Extrajudicial confession-No
corroborative evidence-Held, very weak piece of evidence-Dead                c
bodies-Recovery of from open field-Held, exclusive knowledge can­
not be attributed to the accused-Consequently evidence under s. 27
cannot be a circumstance against the accused.

      The appellant was convicted under s. 302 read with s; 201 tPC for      D
having committed the murder of his father and son. It was alleged, as
motive for offence, that the appellant used to quarrel with bis father as
the latter wanted to transfer bis land in the name or his grandson, who
used to live with him. PW. 2 had deposed that a day prior to Amawasya
of Chet 1985 at about S p.m. he had seen the two deceased persons at
the Gurdwara when appellant went there and told them that be had             E
arranged for their visit to Amritsar, through the car seva truck coming
that evening, to take the holy bath; He had met the appellant that very
night at about 10 p.m. on bis way to the fields and enquired or him why
h e too did not go to Amritsar. And, that when he did not see the
deceased for sometime he felt suspicious and lodged a report with the
police on 8th August, 1985, which became the FIR. On 13th August,            F
1985 the appellant is alleged to have made an extra-judicial confession
to PW. 3, his sister's husband, who is said to have produced him before
the police. On 15th August, 1985 a memorandum under s. 27 of the
Evidence Act was recorded by the investigating officer at the instance of
the appellant and later dead bodies were recovered from field and
identified. The belongings of the deceased were recovered froqt the          G
Kotba in the fields, where the deceased used to reside, at the instance of
the appellant.


      Based on this evidence the appell ant   7� convicted and sentenced
to death by the Sessions Court. That order was upheld by the High
Court.                                                                       H

                                  613
    614               SUPREME COURT REPORTS           [1988] Supp. 1 S.C.R.

              Allowing the appeal by special leave,
A
          HELD: The charge against the appellant cannot be ·said to have
    been proved beyond doubt. His conviction, therefore, cannot be
    sustained. [620]

B         Extra-judicial confession is a very weak piece of evidence and is
    hardly of any consequence. PW. 3 says that the appellant told him that
    as the police was after him he.had come and confessed the fact .so that he
    might not be nnnecessarlly'harassed. There is nothing to indicate that
    this witness was a person having influence with the police or a person or
    some status to protect the appellant from harassment ..There is no other
    cor-roborative   evidence about the extra-judicial confession. [618D-E]
c    .'            ;

                                 ,.\
                                         .        -                '   ':~




          As regards the motive, the will was.executed on 31st December,
    1984 and it is a figment of'imagination'"that the murder was committed
    apprehending that the will was likely' to be changed. There is alSo no
    evidence to indicate that appellant was not having good relations with
D   his father or that there was       ever
                                       .any trouble .between father and the
    son.'[6t8F-G]                                            '
                  .                                     l
          The evidence as to last seen also cannot be considered as a piece of
    circumstantial evidence against the appellant. The case of the appellant
    was that his brother-in-law, Manjit Singh, had taken the deceased to his
E place on the pretext that appellant's sister ·was not well. There is
    no evidence led by the prosecution to negative this stand, May be,
    PW. 2 saw them with the appellant at the Gurdwara' on the Amawiisaya
  . day in Chet but it is significant that no othe~ person c0nnected with
    the deceased has been produced to s11ggest that be was ·not' seen there-      •
    after. [619B-C]                                                      ' ..
          •

           As regards the recovery of dead bodies, the investigation officer
                                                                             ..
    himself admitted that after recording the statement of PW. 3 he knew
    that the bodies were buried in the field but be felt that information was
    not sufficient. The said field is an open place ·surrounded by other
    fields. It cannot be said that any one else could not have known about
G   the bodies being buried there. Since exclusive knowledge to the appel-
    lant cannot be attributed, the evidence under s. 27 of the Evidence Act
    also cannot be said to be a circumstance against the appellant. [619E-G]

          According to the medical opinion, bodies were recovered about
    three months after the death. The bodies were found disintegrated. It
H   was difficult to identify. The disintegration had gone to such an extent
            MAKHAN SINGH v. STATE OF PUNJAB [OZA, J.]               615

that the bodies could not be removed and sent for postmortem and           A
therefore medical expert was called to the spot to perform the post-
mortem. The prosecution did not examine any one of the relatives or the
daughter of deceased or his son-in-law to identify the dead bodies
although it has appeared in evidence that during the trial the said
son-in-law was present in the Court. [617E-F]
                                                                           B
      As regards recovery made from the Kotha where the deceased
used to reside, there is nothing significant. Their belonging were found
                                                • be drawn against the
to be there and on that basi.'i no inference could
appellant. [619G-H]

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 238 of 1988.    ·                                                      c
     From the· Judgment and Order dated 4.8.1986 of the Punjab and
Haryana High .Court in Criminal Appeal No. 329-DB of 1986 and
Murder Reference No. 2 of 1986.
                                                                           D
      Mrs. Urmila Kapoor and Ms. S. Janani for the Appellant.

      R.S. Suri for the Respondent.

      The Judgment of the Court was delivered by
                                                                           E
      OZA, J. This appeal has come to this Court on grant of leave
against the conviction of the.appellant under Section 302 and sentence
of death and also his conviction under Section 201 IPC and sentence of
7 years rigorous imprisonment and fine of Rs.200 awarded liy Sessions
Judge, Ferozepur and confirmed by the High Court of Punjab &
Haryana. The appellant is convicted for having committed the murder        F
of his father and son. It is alleged that deceased Banta Singh father of
the present appellant owned 4-5 killas of land situated at Ferozepur
Road where a tube well was also installed by the side of a samll kotha
where he alongwith his grandson Seva Singh used to live away from the
house where the appellant resided. It is alleged that Seva Singh was
cr;ppled and used to move about on a tricycle Banta Singh and Seva         G
Singh used to go to Gurudwara of their village to render services.

      Banta Singh had only one son i.e. present appellant whereas the
appellant had a son Seva Singh the deceased from his first wife (since
deceased). Later he married second time and had two children, but she
also died. At present he has the third wife and with her, he has two       H
sons.
    616         SUPREME COURT REPORTS               [1988] Supp. 1 S.C.R.

A         It was alleged, as motive for the offence, that the appellant used
    to quarrel with his father and son in connection with land owned by
    father as the latter wanted to transfer his land in the name of Seva       ;
    Singh who used to live with the grandfather.

         According to the prosecution a day prior to Amawasaya of Chet
B 1985 (May 1985) when Nihal Singh (PW 2) was rendering services with
  Banta Singh and Seva Singh at Gurudwara at about 5 p.m. the appel-
  lant went to the Gurudwara and told his father and son that in the
  evening a truck of Car Seva would come from Fazilka and that they
  would go to Amritsar to take the holy bath. On this representation,
  appellant took Banta Singh and Seva Singh from the Gurudwara. It is
  alleged that on the same day at about 10 p.m. when Nihal Singh was
C proceeding to his fields for guarding his tubewell he met the accused
  on the way and found carrying dang with him. On being questioned by
  Nihal Singh as to why he was there and why he did not go to Amritsar,
  the appellant replied that Banta Singh and Seva Singh were sent to
  Amritsar by him in a truck of Car Seva. It is further alleged that when
D Nihal Singh did not see for sometime Banta Singh and Seva Singh he
  felt suspicious and lodged a report dated 10 October 1985 in the Police
  Station Mamdot. That became the FIR (Ex. PG).

         S.I. Puran Singh who recorded the statement of Nihal Singh
  raided the house of the appellant who it is alleged was not present. On
E 13 of August 1985, it is alleged that the appellant made an extra judi-
  cial confession to one Amrik Singh and Amrik Singh produced the
  appellant before the Police. On 15 August, 1985, a memorandum under
  Section 27 of the evidence Act was recorded by the Investigating Of-
  ficer at the instance of the appellant and later the dead bodies of Ba.nta
  Singh and Seva Singh were recovered from a field. It is also alleged
F that at .that time there was a Jhinjan crop standing in the field. The
  dead bodies were indentified by one Channan Singh who was a Panch
  witness. The tricycle and other articles were recovered from the Kotha
  at the instance of the appellant.

          On the basis of this evidence, the courts below convicted the
G   present appellant. The circumstances which have been found against
    the appellant are: (i) Last seen with the deceased at the Gurudwara by-
    Nihal Sing (ii) extra judicial confession made to Amrik Singh (iii) the
    statement under Section 27 leading to discovery of dead bodies and
    (iv) recovery of tricycle and other articles from the Kotha where the
    two deceased used to reside and the motive alleged against the
H   appellant.
                                   •


            MAKHAN SINGH v. STATE OF PUNJAB [OZA, J.[                 617

       Learned counsel for the appellant contended that as against the
                                                                             A
motive is concerned, the appellant at the trial had produced a will
executed by deceased Banta Singh wherein he has given away all his
lands to the appellant. In the cross examination of prosecution witnes-
ses it was suggested that ....... , that his brother-in-law Manjit Singh
was interested in getting the property transferred in his pame or in his
wife's name. It was also argued that extra judicial confession even          B
otherwise is a very weak piece of evidence and in this case it is strange
that the appellant chose this Amrik Singh to make an extra judicial
confessi9n and the reasons suggested by Amrik Singh also do not
appear to be justifiable. Similarly it was said that the recovery of dead
bodies and the memorandum of the statement leading to the discovery
are of no consequence as even according to the Investigating Officer
he had learnt from Amrik Singh that the dead bodies were in the field        c
but he felt that the information he had got was not sufficient and
therefore he recorded the information under Section 27 given by the
appellant.

       In our opinion, these contentions are well founded and must be        D
accepted as correct. The field where the bodies were recovered is an
open place. It is alleged that there was Jhinjan crop standing in the
field and prosecution has not led any evidence to indicate as to who
was in possession of the field and who cultivated the crop which was
standing at that time. We will discuss this part of the case in detail a
little later. It is very significant to note that according to the medical   E
opinion bodies were recovered about three months after the death.
The bodies were found disintegrated. lt was difficult to identify. The
disintegration has gone to such an extent that the bodies could not be
removed and sent for post-mortem and therefore medical expert was
called to the spot to perform the post-mortem. The prosecution did not
examine any one of the relatives or the daughter of deceased Banta           F
Singh or the son-in-law Manjit Singh to identify the dead bodies
although it has appeared in evidence that during the trial Manjit Singh
was present in the Court.

      As to the extra judicial confession, it may be noted that Nihal
Singh claims to be a person who had seen the deceased Banta Singh            G
and Seva Singh alongwith the appellant in the month of May in the
Gurudwara. On the same night he again met the appellant and en-
quired about them. The witness also stated that when he did not see
the old man for some time, he became suspicious about the missing of
those two persons. This witness in order to ju :tify his meeting with the
appellant at 10 P.M. on that day said that alth,mgh his own land was at      H
    618         SUPREME COURT REPORTS                 [1988] Supp. 1 S.C.R.

A   a distance, he had taken some land on lease which was adjacent to the
    land of the appellant and so he had to go near the appellant's house.
    But in cross examination he had to admit that for the lease he had no
    document to support.

          The prosecution has suggested that the appellant did not search
B   for his father, but according to the appellant, the deceased had been
    taken away by Manjit Singh to their place on the pretext that Manjit
    Singh's wife i.e. the appellant's sister was not well and this was also put
    in cross examination to Nihal Singh. In the absence of evidence of
    Manjit Singh, the suggestion of the appellant cannot be brushed aside.

          On 10 August, 1985 F.l.R. was lodged by Nihal Singh (PW-2).and
c   on 13.8.85 the appellant went to Amrik Singh (PW-3) to make an extra
    judicial confession. Amrik Singh says that the appellant told him that
    as the Police was after him he had come and confessed the fact so that
    he might not be unnecessarily harrased. There is nothing to indicate
    that this Amrik Singh was a person having some influence with the
D   Police or a person of some status to protect the appellant from harrass-
    ment. In his cross-examination he admits that he is neither the
    Lumbardar or Sarpanch nor a person who is frequently visiting the
    Police Station. He further admits that when he produced the appellant
    there was a crowd of 10 to 12 persons. There is no other corroborative
    evidence about the extra judicial confession. As rightly conceded by
E   the learned counsel for the State that extra judicial confession is a very
    weak piece of evidence and is hardly of any consequence. The council
    however, mainly relied on motive, the evidence of last seen, the evi-
    dence of recovery of dead bodies and the conduct of the appellant in
    not making a report about the missing father and son.

F         As regards the motive the will in question is sufficient to dislodge
    it. An attempt was made by the learned counsel for the State to suggest
    that even after the will the appellant could have done away with the
    old man to avoid changing the will. But the will was executed on 31
    December, 1984 and it is a figment of imagination that the murder was
    committed apprehending that the will likely to be changed. There is
G   also no evidence to indicate that appellant was not having good rela-
    tions with his father or that there was ever any trouble between father
    and the son. In fact Nihal Singh was asked in cross examination as to
    whether there was any dispute between the father and son? He had to
    admit that there was no dispute or difference.

H         As regards the evidence of last seen it was the case of appellant
            MAKHAN SINGH v. STATE OF PUNJAB [OZA, J.]                619

that Manjit Singh had taken Banta Singh and Seva Singh to his place         A
on the pretext that the wife of Manjit Singh was not well. There is no
evidence led by the prosecution to negative this stand of the appellant.
Manjit Singh has not been examil)ed although it has come in evidence
that he was present in the Court when Nihal Singh was examined. 1he
sister of appellant was also not examined and in the absence of any         B
such evidence 'to negative this stand of the appellant it could not be
said that the prosecution has proved that suggestion was false. In these
circumstances, the presence of deceased Banta Singh and Seva Singh
along with the appellant at the Gurudwara on the Amawasaya day in
Chet could not be said to be the last seen before the murder in ques-
tion. May be, Nihal Singh saw them on that day but it is significant that
no other person connected with the deceased has been produced to            c
suggest that he was not seen thereafter. Therefore, the evklence as to
last seen also can not be considered as a piece of circumstantial evi-
dence against the appellant.

      Then we are left with the recovery of the dead bodies. Investigat-
ing Officer S.I. Puran Singh (PW 8) admitted in cross examination that
after recording the statement of Amrik Singh he could not know the
correct place where the bodies and other articles were kept buried and
concealed. This clearly indicates that he could get some information
from the statement of Amrik Singh. As seen earlier, the field is an
open place surrounded by other fields and according to Nihal Singh the      E
adjacent field is his own as he had taken it on lease and therefore it
cannot be said that any one else could not have known about the
bodies being buried in the field. Tue Investigating Officer himself
admitted that after recording the statement of Amill: Singh he knew
that the bodies were buried in the field but he felt that information was
not sufficient. It cannot therefore, be said that the place from where      F
the bodies were recovered was such a place about which knowledge
could only be attributed to the appellant and none alse. Since the
exclusive knowledge to the appellant cannot be attributed, the evi-
dence under Section 27 also cannot be said to be a circumstances
against the appellant.
                                                                            G

      As regards the recovery made from the Kotha where the
deceased Banta Singh and Seva Singh used to reside there is nothing
significant. The tricycle and other belongings of the deceased were
bound to be there and on that basis no inference could be drawn
against the appellant.                                                      H
                 Sl.)PREME. CQl.)RT REPORTS             119881 Supp. 1 $.C.R.

I\           In view of all these circumstances, the charge against the
     appellant cannot be said to have been proved beyond doubt and the
     coiwicti6n of the appellant iherefore cannot be sustained. The appeal
     is therefore allow~d. Conviction and sentence passed against the
     appi;lla:nt are set asic!e, He is in custody. He be set at liberty forthwith
B·   if riot w3nted in co1mection with any other case.

     P.S.$.                                                    Appeal allowed.