Holding

The prosecution failed to prove the accused's guilt beyond reasonable doubt; the circumstantial evidence, extra‑judicial confession, and alleged specimen signature were inadmissible or insufficient, and Section 27 did not apply, so the appeals were dismissed.

Summary

The State of Haryana alleged that Jagbir Singh and another accused kidnapped a four‑year‑old child, demanded ransom and caused the child's death. The trial court convicted them on the basis of circumstantial evidence – a ransom note allegedly in the accused's handwriting, an alleged extra‑judicial confession before a witness, and the recovery of the dead body based on information given by the accused while in custody. The High Court acquitted the accused, holding the evidence contradictory and insufficient. On appeal, the Supreme Court examined the standards for circumstantial evidence, the admissibility of extra‑judicial confessions, the scope of Section 73 of the Evidence Act for specimen signatures, and the applicability of Section 27 for body recovery. It found that the prosecution failed to prove guilt beyond reasonable doubt, the confession was not voluntary, Section 73 could not be invoked without a pending proceeding, and Section 27 did not apply. Consequently, the Court dismissed the appeals and upheld the acquittal.

Issues considered

The prosecution can sustain a conviction solely on circumstantial evidence.
Whether the circumstantial evidence presented satisfies the established tests for conviction.
Whether the alleged extra‑judicial confession is admissible and voluntary.
Whether a court may direct a specimen signature under Section 73 of the Evidence Act when no proceeding is pending.
Whether the recovery of the dead body falls within Section 27 of the Evidence Act.

Legislation cited

Indian Evidence Act, 1872s. 27, s. 73
Indian Penal Code, 1860s. 201, s. 302, s. 364, s. 384

Subjects

circumstantial evidenceextra‑judicial confessionspecimen signatureSection 73Section 27reasonable doubtacquittalkidnappingransommurder

Judgment

• STATE OF HARYANA A
v.
JAG8IR SINGH AND ANR.

SEPTEMBER 26, 2003

(DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]
B

Criminal Trial:

Circumstantial Evidence-Appreciation of Evidence-Inference of
guilt-Held, accused entitled as of right to be acquitted where there is any C
reasonable doubt regarding his guilt-In the facts, held, evidence
contradictory and unacceptable~Hence acquittal upheld-Indian Penal
Code, 1860-Sections 302, 364, 201 and 384.

Extra-judicial confession-Prosecution case that it was made by D
accused before many persons-PWs not stating about it-No mention in
FIR also about it-Effect-In the facts, held, extra judicial confession
neither voluntary nor believable.

Indian Evidence Act, 1872-Power of Court to direct any person
present in Court to give specimen writings-Accused in custody produced E
before Magistrate for giving specimen signature for comparison-Case
still under investigation-No proceedings before Court-Held, pendency
ofproceeding before Court is the sine qua non for exercise ofpower under
Section 73-Power given for the purpose of enabling Court to compare
and not for enabling investigating or other agency 'to compare'- F
Power to take specimen writings not given for anticipated necessity for
comparison in proceedings to be later instituted in Court.

Indian Evidence Act, 1872-Section 27-Whether applicable-
Recovery of dead body on the basis of information already known-Held,
Section 27 not applicable. G
Prosecution alleged that accused-respondents, J & U, kidnapped
a 4 years old child for demanding ransom for his release and caused
his homicidal death. Prosecution case before Trial Court was based on
circumstantial evidence that ransom note was in handwriting of H
165
166 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A accused, J; that accused made ~xtra-judicial confession before PW-10;
and that dead body was recovered on the basis of 'information given
by accused while in custody in terms 'or Section 27 of the Evidence Act,
1872. Trial Court found the .circumstantial
.; ,:1 i"'
evidence .sufficient and
convicted accused, J, under Sections 302, 364, 201 and 384 of the
B Indian Penal Code, 1860 ,and accused, U, under Section 201. IPC. In
appeal preferred by the accused persons, High Court acquitted the!".
Hence, these appeals by the State and the informant.

Appellants contended that police was adopting a partisan role and
·. , ,.. - . " I I , I•- 1

did not place adequate material, before~Court; that ransom note was
C erroneously discarded by the High Co~~t as accused had· ad mitt~~ the
handwriting on it and the handwriting expert's report was available
to be used against the accused particularly when handwriting was
given voluntarily for comparison; that extra judicial confession made
by accused before PW-10 was discarded without any reasonable basis;
D and that High Court should have relied upon the circumstance that
. ·''
dead body was recovered from the house of accused on the basis of
information given while in custody.

Dismissing the appeals, the Court

E HELD:_ 1. Where a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the innocence
of the accused or the guilt of any other person. The circumstances from
which an inference as to the guilt of the accused is drawn have to 'be
F proved beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances. If there be any reasonabie doubt of the guilt of the
accused, he is entitled as of right to be acquitted. (171-D-F, 173-C]

Padala Veera Reddy v. State of A.P. and Ors., AIR (1990) SC79;
G Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622,
Hukam Singh v. State of Rajasthan, AIR (1977) ~C 1063; Eradu a.nd Ors.
v. State of Hyderabad, AIR (1956) SC 316; Earabhadrappa v. State of
Karnataka, AIR (1983) SC 446; State of UP. v. Sukhbasi and Ors., AIR
(1985) SC 1224; Ba/winder Singh v. State of Punjab, AIR (1987) SC 350;
H Ashok Kumar Chatterjee v. State of MP., AIR (1989) sc' 1890; Bhagat
!
I'
167
.. ST ATE.'" .IAGBIR SINGH

Ram v. State of Punjab, AIR (1954) SC 621, C. Chenga Reddy & Ors. A
v. State of A.P., 119961 10 SCC 193; State of UP. v. As/10k Kumar
Srivastava, (1992) Crl; L. J. 1104, Hanumant Govind Nargundhar and
Anr. v. State of Madhya Pradesh, AIR (1952) SC 343 and State of
Rajasthan \l. Rajaram. (2003) AIR SCW 4097, relied on.

"Wills' Circumstantial Evidence" (Chapter Vl) by Sir alfred Wills
B
referred to.

2. The accused was brought before the Additional Chief Judicial
Magistrate, Bhiwani in custody for giving his specimen signature un~er
Section 73 of the Evidence Act. The second paragraph of Section 73 C
·enables the court to direct any person present in the Court to give
specimen writings 'for the purpose of enabling the Court to compare'
such writing with writings alleged to have been written by such person.
The clear implication of the words 'for the, purpose of enabling the
Court to compare' is that there is some proceeding before the Court D
in which or as a consequence of which it might be necessary for the
Court to compare such writings. The direction is to be given for the
purpose of enabling the Court to compare and not for the purpose of
enabling the investigating or other agency 'to compare'. If the case is
still under investigation there is no present proceeding before the
Court in which or as a consequence of which it might be necessary to E
compare the writings. The language of Section 73 does not permit a
court to give a direction to the accused to give specimen writings for
anticipated necessity for comparison in a proceeding which may later
be instituted in the Court. In order to enable exercise of power under
Section 73, the pendency of a proceeding before the Court is the sine F
qua non. Therefore, the comparison of the signature on the alleged
ransom note in no way helps the prosecution. [174-F, G, 175-D-G]

State of Uttar Pradesh v. Ram Babu Misra, AIR (1980) SC 791,
relied on.
G
3.1. It is on record that accused J was being taken to various places
and at different points of time he was being pressurized to make statement.
Though the accused was claimed to have made the statement in the
presence oflarge number of persons, a combined reading of the evidence
shows that nobody else speaks about the so-called extra judicial confession, H
168 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A not even those who have been examined as PWs. Though PW lOsaid that
there were many persons wh·o had heard it, no other person has stated
about it,. The statement of PWs 7 and 10 goes to show that accused was
being i~terrogated by PWs and other villagers as well as his father and
other relatives. Interrogation continued for about 3days when allegedly
B J confessed his guilt. Though the First Information Report was lodged
by PW 7 after knowing about the extra judicial confession, there is no
mention about this vital fact. (176-B-DI

3.2. In a given circumstance, omission to mention about the
particular aspect may not render prosecution version suspicious. But
C when circumstances in the present case are taken in the entirety alleged
extra judicial confession is not believable. In order to make an extra
judicial confession a reliable evidence it has to be shown that the same
was voluntary. The factual scenario as presented ·by the prosecution
goes to show that the alleged extra judicial confession cannot be termed
D to be voluntary even if it was said to have been made, as claimed. The .
High Court was right in discarding the alleged extrajudicial confession.
[176-·D-F)

4. There are unexplained contradictions about the place where the
accused were arrested and the manner of recovery. Since ·the dead
E body was recovered on the basis of information already known, Section
27 of the Evidence Act has n() application. [177-D]

Aher Raja Khima v. State ofSaurashtra, AIR (1956) SC 217, relied
on.

F 5. Even though the investigation may not be entirely blemishless,
at the same time when the material brought on record is insufficient,
the course adopted by the High Court cannot be faulted. It does not
appear that before the Trial Court or the High Court any grievance
was made regarding remiss in investigation or not making investigation
G in the right direction. (178-A-B)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1721 of 1996.

From the Judgment and Order dated 10.10.95 of the Punjab and
H Haryana High Court in Murder Reference No. 3/95 and Crl. A.No. 136-
STATE. v. JAGBIR SINGH [PASAYAT, J.] 169

DB of 1995. A
WITH

Crl. A. Nos. 1237-38 of 2003.

D.P. Singh, Additional Standing Counsel, V.K. Garg, Ms. A. Avneet B
Toor and Ms. Kavita Wadia for the Appellant.

Rishi Malhotra and Prem Malhotra for Appellant in Cr!. A. Nos.
1237-38/2003.

Ms. Arnita Gupta (NP) for the Respondent in Cr!. A. No. 1721/96.
c
The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. : Leave granted in SLP (Crl.) Nos. I 076-
107711996. J)

Questioning legality of judgment rendered by a Division Bench of the
Punjab and Haryana High Court, Criminal Appeal No. 1721 of 1996 has
been filed by the State of Haryana. The other two appeals are by the
informant. An innocent child of about 4 years was the victim of unnatural E
death. According to the prosecution, respondents caused his homicidal
death after kidnapping him. The motive for the killing was stated to be
intended demand of ransom for his release. The Sessions Judge, Bhiwani
found the respondent-accused Jagbir Singh to be guilty of offences
punishable under Section 302 IPC. He was also convicted for offence F
punishable under Sections 364, 201and384 of the Indian Penal Code, 1860
(in short the 'IPC'). For the offence punishable under Section 302 IPC he
was awarded death sentence and for other offences period of sentence
already undergone in custody. Accused Urned Singh was convicted for
offences punishable under Section 20 I IPC and was directed to suffer RI
for 3 years and fine. Both the accused persons preferred appeal before the G
High Court. The High Court by the impugned judgment found them not
guilty.

According to the prosecution, death of the victim was on 6.9.1991
and passing through a chain of incidents and happenings, finally the First H
170 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A Information Report was lodged on 9.9.1991. In between, a !"ansom letter
meant for somebody else was found in torn condition and that led to
~uspicion against the accused-respondents. Accused-Jagbir is related to
Daya Nand (PW7), a teacher. It appears ·that on account of several
circumstances, the villagers thought that accused-Jagbir was responsible
B for disappearance of the child. He was given time to produce the child. A
ransom note was found to be in the hand writing of accused-Jagbir and
he is stated to have pointed out the place where the dead body was buried
in his house and also on the basis of his information certain articles were
recovered. It was also the version of PW7 that at a point of time, accused-
C Jagbir was taken to the police with the material indicating his complicity
in the alleged incident. But the police did not arrest him and left him off.
It was pointed out there was grave doubt about the manner in which the
investigation was being conducted, and alleged inaction of police. On
completion of investigation charge sheet was placed and accused faced
trial. The case before the Trial Court was based on circumstantial evidence.
D The circumstances which according to the prosecution established guilt of
the accused are as follows:

(I) The ransom notes were in the handwriting of the accused-Jagbir
Singh;

E (2) There was extra-judicial confession before PW-10 and;

(3) Recovery of dead body on the basis of information given by the
accused while in custody in terms of Section 27 of the Evidence Act, 1872
(for short 'the Evidence Act').
F
The Trial Court found the above circumstances sufficient for
establishing guilt of the accused persons for the offences alleged. In appeal,
the High Court upset the findings and held the accused persons not guilty.

In support of the appeals, learned counsel for the State and the
G informant submitted that the High· Court's approach was erroneous. It
failed to notice that the police was adopting a partisan role and the evidence
of witnesses brought on record was in a particular line. The investigation
was done otherwise and the police did not place adequate material before
the Court. It was pointed out that the ransom note has been erroneously
H discarded by the High Court. It should have noticed that the accused-Jagbir
STATE. v. .TAGBIR SINGH [PASAYAT, J.] 171

accepted the handwriting to be his and, therefore,. the handwriting expert's A
report was available to be used against the accused; particularly when the
handwriting was given voluntarily for comparison. Further the extra
judicial confession before PW-10 has been discarded without any reasonable
basis. Finally, when the dead body was recovered from the house of the
accused on the basis of the information given while in custody, the High B
Court should have relied upon the same.

There was no appearance for the respondents-accused when the
matter was taken up for hearing, though the respondents had appeared
through their counsel, and the cause list indicated name of the counsel. C
It is unfortunate that an innocent child has lost his life but the crucial
question is whether the accused persons were responsible for his death and
the prosecution was able to prove its claims beyond reasonable doubt. As
stated earlier the case rests on circumstantial evidence.
..I
D
It has been consistently laid down by this Court that where a case rests
squarely on circumstantial evidence, the inference of guilt can be justified
only when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of any other
person. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063; E
Eradu and Ors. v. State ofHyderabad, AIR(l956) SC 316; Earabhadrappa
v. State of Karnataka, AIR (1983) SC 446; State of UP. v. Sukhbasi and
Ors., AIR (1985) SC 1224; Ba/winder Singh v. State ofPunjab, AIR (1987)
SC 350; As/10k Kumar Chatterjee v. State of M.P., AIR (1989) SC 1890.
The circumstances from which an inference as to the guilt of the accused F
is drawn have to be proved beyond reasonable doubt and have to be shown
to be closely connected with the principal fact sought to be inferred from
those circumstances. In Bhagat Ram v. State of Punjab, AIR (1954) SC
621, it was laid down that where the case depends upon the conclusion
drawn from circumstances the cumulative effect of the circumstances must
be such as to negative the innocence of the accused and bring the offences G
home beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C.
Chenga Reddy and Ors. v. State of A.P., [1996] 10 SCC 193, wherein it
has been observed thus: H
172 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A "In a case based on circumstantial evidence, the settled law
is that the circumstances from which the conclusion of guilt is
drawn should be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should be
complete and there should be no gap left in the chain of evidence.
B Further the proved circumstances must be consistent only with the
hypothesis of the guilt of the accused and totally inconsistent with
his innocence .... ".

In Padala Veera Reddy v. State ofA.P. and Ors., AIR (1990) SC 79,
C it was laid down that when a case rests upon circumstantial evidence, such
evidence must satisfy the following tests:

"(!) the circumstances from which an inference of guilt is sought
to be drawn, must be cogently and firmly established;

D (2) those circumstances should be of a definite tendency
'·
unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain
so complete that there is no escape from the conclusion that within
E all human probability the crime was committed by the accused
and none else; and

(4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
F hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence.

In State of U.P. v. As/10k Kumar Srivastava, (1992 )Crl.LJ 1104, it
G was pointed out that great care must be taken in evaluating circumstantial
evidence and if the evidence relied on is reasonably capable of two
inferences, the one in favour of the accused must be accepted. It was also
pointed out that the circumstances relied upon must be found to have been
fully established and the cumulative effect of all the facts so established
H must be consistent only with the hypothesis of guilt.
STATE. v. JAGBIR SINGH [PASAYAT, J.] 173

Sir Alfred Wills in his admirable book "Wills' Circumstantial A
Evidence" (Chapter VI) lays down the following rules specially to be
observed in the case of circumstantial evidence: (I) the facts alleged as the
basis of any legal inference must be clearly proved and beyond reasonable
doubt connected with the factum probandum; (2) the burden of proof is
always on the party who asserts the existence of any fact, which infers legal B
accountability; (3) in all cases, whether of direct or circumstantial evidence
the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and incapable of explanation,
upon any other reasonable hypothesis than that of his guilt, ( 5) if there be C
any reasonable doubt of the guilt of the accused, he is entitled as of right
to be acquitted".

There is no doubt that conviction can be based solely on circumstantial
evidence but it should be tested by the touch-stone of law relating to
circumstantial evidence laid down by the this Court as far back as in 1952. D
..}

In Hanumant Govind Nargundkar and Anr. v. State of Madhya
Pradesh, AIR (1952) SC 343, wherein it was observed thus:

"It is well to remember that in cases where the evidence is
of a circumstantial nature, the circumstances · from which the E
conclusion of guilt is to be drawn should be in the first instance
be fully established and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis F
but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human
probability the act must have been done by the accused."
G
A reference may be made to a later decision in Sharad Birdhichand
Sarda v. State of Maharashtra, AIR (1984) SC 1622. Therein, while
dealing with circumstantial evidence, it has been held that onus was on the
prosecution to prove that the chain is complete and the infirmity of lacuna
in prosecution cannot be cured by false. defence or plea. The conditions H
174 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A precedent in the words of this Court, before conviction could be based on
circumstantial evidence, must be fully established. They are:

(I) the circumstances from which the conclusion of guilt is to
be drawn should be fully established. The circumstances concerned
'must' or 'should' and not 'may be' established;
B
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the accused
is guilty;
c
(3) the circumstances should be of a conclusive nature and
tendency;

(4) they should exclude every possible hypothesis except the one
D to be proved; and

(5) there must be a chain of evidence so complete as not to leave
·-
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
E
These aspects were recently highlighted in State of Rajasthan v.
Rajaram, (2003) AIR SCW 4097.

We shall examine the circumstances highlighted. So far as ransom
F notes are concerned, prosecution sought to rely upon the report given by
the handwriting expert. It appears that the accused was taken before Addi.
Chief Judicial Magistrate, Bhiwani. According to him, on 10.9.1991 the
accused was brought before him in custody for givin,g his specimen
signature under Section 73 of the Evidence Act. It was noticed by this Court
in State of Uttar Pradesh v. Ram Babu Misra, AIR (1980) SC 791 that the
G Chief Judicial Magistrate has no power to direct the accused to give his
specimen signature for comparison during investigation. Section 73 of the
Evidence Act reads as follows:

"Section 73- Comparison of signature, writing or seal with
H others admitted or proved: In order to ascertain whether a
STATE. v. JAGBJR SINGH [PASA YAT . .1.] 175

signature, writing, or seal is that of the person by whom it purports A
to have been written or made, any signature, writing, or seal
admitted or proved to the satisfaction of the Court to have been
written or made by that person may be compared with the one
which is to be proved, although that signature, writing, or seal has
not been produced or proved for any other purpose. B
The Court may direct any person present in court to write
any words or figures for the purpose of enabling the Court to
compare the words or figures so written with any words or figures
alleged to have been written by such person.
c
This section also applies, with any necessary modifications,
to finger-impressions".

The second :iaragraph of Section 73 enables the Court to direct any
person present in the Court to give specimen writings 'for the purpose of D
enabling the Court to compare' such writings with writings alleged to have
been written by such person. The clear implication of the words 'for the
purpose of enabling the Court to compare' is that there is some proceeding
before the Court in which or as a consequence of which it might be
necessary for the Court to compare such writings. The direction is to be E
given for the purpose of enabling the Court to compare and not for the
purpose of enabling the investigating or other agency 'to compare'. If the
case is still under investigation there is no present proceeding before the
Court in which or as a consequence of which it might be necessary to
compare the writings. The language of Section 73 does not pennit a court F
to give a direction to the accused to give specimen writings for anticipated
necessity for comparison in a proceeding which may later be instituted in
the Court.

In order to enable exercise of power under Section 73, the pendency
of a proceeding before the Court is the sine qua non. Therefore, the G
comparison of the signature on the alleged ransom note in no way helps
the prosecution.

Great emphasis was laid by learned counsel for the State on the
evidence of PW-4, the Addi. CJM that accused had admitted that the H
176 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
..
~

A signature was his. This statement is of no assistance. The witness has
admitted that the statement was made before him by the accused i~ the.
presence of police officials. The second circumstance is .the alleged extra,
judicial confession before PW-IO. The High Court has analvsed the
evidence in great detail. It is on record that.the accuse~-Jagbir ;as being
B taken to various places and at different points of time he was, b~ing
pressurized to make statement. Though the accused was c~aimed. to. ~av~
made the statement in the presence of large number of persons, a combined
reading of the evidence shows that nobody else s~eaks ab~ut t~e s~-~~Il~-d
extra judicial confession, not even those who have been examined as PWs.,
C Though PW I 0 said that there were many persons who had heard it, no other.
person has stated about it. The statement of PWs 7 and I 0 goes to show,
' . ' I

that accused was being interrogated by PWs and other villagers as well as.
his father and other relatives. Interrogation continued for about 3 days
when allegedly Jagbir confessed his guilt. Though the First Information
D Report was lodged by PW7 after knowing .about the extra judicial
confession, .. there is no mention about this vital fact. In a given,
circumstance, omission to mention about the p~rticular aspect may not.
render prosecution version suspicious. ]3ut when, circumstances in the
present case are taken in the entirety alleged extrajudidal confession is
not believable. In order to make an extra judicial confession a reliable
E evidence it has to be shown that the same was. vo~untary. J"he factual
scenario as presented by the prosecuti?n goes ti) sho\\_' that the alleged extra
judicial confession cannot be ~ermed to be voluntary even if it was said
to have been made, as claimed. The High Court was right in discarding
the alleged extra judicial confession.
F ,'
What remains now to be seen is whether the recovery of the dead ·
body from the premises of .accused establishes prosecution version:.
According to the prosecution when the Panchayat gave time to the accused
to produce the boy alive or dead, he accepted that the dead·body was buried·
G in his compound. The accused dug the land and on seeing leg of the dead 1
body they stopped digging and went to the police. The High Court has
found that prosecution claime<l that the two accused were arrested by the
Sub Inspector Mahender Singh Bhatti (PW 12) on 9.9.1995 on the culvert
of Jai Canal about 8.00 p.m. in the presence of one Chatter Singh and Om
H Parkash. However, Om Parkash (PW IO) has denied about the arrest of the
STATE. v. JAGBIR SINGH [PASAYAT. J.] 177

accused by PW12 near canal. From the statement of PWI2, it appears that A
the accused persons after their arrest made disclosure of the statement about
ransom, concealment of tile dead body and that the dead body recovered
in the presence of aforesaid Chatter Singh and Om Parkash (PWlO). It is
belied by the statement ofOin Parkash (PWlO). According to this witness,
when the accused made a voluntary statement in the presence of many B
others he pointed out where the body was buried. They went to the police
station where they met PWl2 and told him about finding the dead body.
PWI 0 told him that dead body was to be handed over to Sr. S.P. or the
Dy. S.P. Evidence of PWIO further shows that PW.12 accompanied by
another ASI and other police officials went to the village. There many C
people had assembled and as the villagers started shouting and agitating
that led to altercation; both the accused were arrested by the Dy.S.P.
Thereafter it is stated that the accused-Jagbir made a disclosure statement,
where he (PWIO) and Chatter Singh were stated to be eyewitnesses. One
thing is clear that there are unexplained contradictions about the place D
where the accused were arrested and manner of recovery. Since the dead
body was recovered on the basis of information already known, Section
27 of the Evidence Act has no application. As observed by this Court in
Aher Raja Khimav.State ofSaurashtra, AIR (1956) SC 217), if a recovery
of the incriminating articles alleged to have been made by the accused
while in custody is inadmissible in evidence if the police already known E
where they were hidden. That takes the case out the purview of Section
27 of the Evidence Act.

However, if a witness can be believed that in his presence the accused
person gave recovery of something (of course while not in police custody) F
it may be a suspicious circumstance, de hors Section 27 of the Evidence
Act. But, as noted above, the High Court has analysed the evidence in the
present case in great detail to find the evidence to be contradictory and
unacceptable in relation to extra judicial confession and alleged recovery.
That being so, the High Court's conclusion cannot be faulted.
G
Looked from any angle the judgment of the High Court does not
suffer from any infirmity which warrants interference.

It is true that an innocent child has lost his life and there may be some
truth about deficiency in the evidence collection mode. But the court can H
178 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A act on the eviden~e brought before it. Even though ·the inve5tigation may
not be entirely blemish less, at the same time when the. material brought on
record is insufficient, the course adopted by the Hlgh Court cannot be
faulted. It does not appear that before the, Trial Court or the High Court
any grievance was made rega~ding remis~ it1 inv~stigation or not making
B investigation in the right direction.

The appeals are without merit and deserve dismissal, which we direct.
t • c 4 - , ' •

A.K.T. • ,1.4 '·.
Appeals' dismissed.
' '

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