Holding

Conviction under Section 3 TADA cannot be sustained without proof of its ingredients, and specimen handwriting obtained without proper authority and repeated disclosure statements violate Sections 73 and 27 of the Evidence Act, leading to the setting aside of all convictions except Sukhvinder Singh's murder conviction under Section 302 IPC (read with Section 149).

Summary

The case arose from the abduction and murder of a child, Varun Kumar, for which five persons were convicted under Sections 302, 149, 120B of the IPC, Section 3 of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and related provisions. On appeal, the Supreme Court examined whether the prosecution had proved the elements of Section 3 TADA, whether the circumstantial evidence—including disclosure statements under Section 27 of the Evidence Act and specimen handwriting obtained under Section 73—was admissible and sufficient to establish guilt beyond reasonable doubt. The Court held that none of the ingredients of Section 3 TADA were established, that subsequent disclosure statements after the first amounted to a prohibited re‑discovery of the fact, and that specimen handwriting taken by an executive magistrate without a pending enquiry or trial violated Section 73. Consequently, the convictions of Mohan Singh, Surjit Kaur, Puran Chand and Sukhdev Paul were set aside, and the conviction of Sukhvinder Singh under TADA and Section 120B was also quashed, while his conviction for murder under Section 302 IPC (read with Section 149) was upheld with life imprisonment. The appeal was therefore partly allowed.

Issues considered

Whether the ingredients of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 were proved beyond reasonable doubt.
Whether disclosure statements recorded under Section 27 of the Evidence Act can be used repeatedly to rediscover the same fact.
Whether specimen handwriting obtained by an executive magistrate pursuant to Section 73 of the Evidence Act is admissible when no enquiry or trial is pending.
Whether the circumstantial evidence presented was sufficient to establish the guilt of each accused beyond reasonable doubt.

Legislation cited

Code of Criminal Procedure
Indian Evidence Act, 1872s. 27, s. 73
Indian Penal Code, 1860s. 120B, s. 149, s. 302
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3

Subjects

TADASection 3circumstantial evidencehandwriting specimenSection 27 Evidence ActSection 73 Evidence Actconvictionlife imprisonmentmurderconspiracydisclosure statementsadmissibilityreasonable doubt

Judgment

SUKHVINDER SINGH AND ORS. A
v.
STATE OF PUNJAB

MAY 12, 1994

[DR. A.S. ANAND AND FAIZAN UDDIN, JJ.] B

Indian Penal Code, 1860: Section 302 read with Section 149/ 120B-Cir-
cumstantial evidence connecting the appellants with the criminal conspiracy
to commit murder-Whether proved beyond reasonable doubt-Conviction
and sentence-Validity of C

Tmorist and Disruptive Activities (Prevention) Act, 1987 : Section
3-conviction and sentence cannot be sustained in the absence of any
allegations and ingredient of the section being established in the case.

Evidence Act, 1872: Section 27---l'rovision not to be made use of to D
re-discover the discovered fact.

Section 73-Recourse to be had only by the Court holding enquiry
under the Code of Criminal Procedure or fhe Court trying the accused person
by directing the accused person to give his specimen handwriting for enabling E
it to compare the same.

Words & Phrases : Any person present in the Court'-Meaning of in the
context of s. 73 of Evidence Act, 1872 :

On the basis of a complaint lodged by one 'R' that some unknown F
persons had abducted his son with intent to get some ransom and that the
abductors bad threatened to kill his son, a case was registered under
Section 364/149 IPC. After the investigation all the five accused were
prosecuted for the murder of R's son. Subsequently, on the basis of the
disclosure statements made by three accused persons to the effect that they G
had kidnapped the deceased and later on strangulated him, put him in a
gunny hag and concealed the dead body in the house of one of the accused,
the offence was converted to one under Section 302/149 !PC ~ad with
Section 120 B !PC and Section 3 of TADA Act. The Designated Court, held
that the prosecution has proved the guilt of the accused beyond the
possibility of doubt and convicted and sentence the appellants for offences H
1061
1062 SUPREME COURT REPORTS [1994] 3 S.C.R.

A under section 302 read with Section 149/120B IPC read with Section 3 or
TADA Act.

In the appeal before this Court, it was contended that none or the
five circumstances relied upon by the prosecution had been established in
the case and that even otherwise all the alleged circumstances could not
B be said to be not compatible with the innocence of the accused and
consistent only with the hypothesis or their guilt.

On behalf of the respondent-State, it was contended that the cir-
cumstances relied upon by the prosecution were consistent only with the
c hypothesis of the guilt of the appellants and that each of the circumstances
had been positively established by the prJsecntion and all the circumstan-
ces taken together unmistakably established that the appellants and
appellants alone had committed the crime; that since the appellants had
not raised any objection at the time when their specimen writings were
D taken, they could not be heard at this stage to complain about it; that the
recovery of the dead body from the house of one of the accused on the
disclosure statements made by some of the accused connected all the
appellants with the crime; and the law did not bar more than one dis-
closure statement to be made leading to one and the same discovery and
therefore the disclosure statements did not suffer from any infirmity
E whatsoever.

Party allowing the appeal, this Court

HELD : 1.1. The conviction recorded by the Designated Court under
F Section 3 of Terrorist and Disruptive Activities (Prevention) Act (hel'Pin
after TADA) Act is wholly unjustified. A bare perusal of Section 3 of TADA
would reveal that none or the ingredients or that section have been alleged
and established in this case. None of the prosecution witnesses, not even
the investigating officer, implicated any or the appellants for committing
G an .offence under Section 3 of TADA and the prosecution led no evidence
whatsoever to bring the charge under the section. Merely because the
I
investigating agency had charge sheeted the appellants for an, offence
under sectiol! 3 of TADA, it did not mean that the Designated Court had
to act mechanically and not even exan1ine whether or not from the evidence
led by the prosecution, an offence under Section 3 of TADA had been made
H before recording conviction under the said provision. [1071-C-F]
SUKHVINDER v. STATE OF PUNJAB 1063

__._ _ 2. The circumstantial evidence relied upon by the prosecution to A
connect the parents of the first appellant with the crime have not been
established beyond a reasonable doubL They are the landlords of the
house, a portion of which was under the tenancy of the deceased's parents.
The story of getting the house vacated appears to be a clumsy concoction.
There is not an iota of material to support iL (1072-A-F]
B
3. Under Section 27 of the Evidence Act, only so much of the
statement of an accused is admissible in evidence as distinctly leads to the
discovery of a fact. Therefore, once the fact bas been discovered, Section
27 of the Evidence Act cannot again be made use of to 're-discover' the
discovered facL It would be a total misuse even abuse of the provisions of c
Section 27 of the Evidence AcL (1073-B]

4.1 Section 73 of the Evidence Act cannot be made use of for collect-
ing specimen writings during the investigation and recourse to it can be
bad only when either the Court holding an enquiry or the trial court, before
which proceedings are pending, requires the writing for the purpose of D
'enabling it to compare' the same. (1076-D)
)
4.2. A Court holding an enquiry under the Code of Criminal Proce-
dure is indeed entitled under Section 73 of the Evidence Act to direct an
accused person appearing before it to give bis specimen handwriting to
enable to court by which be may be subsequently tried to compare it with the
E
disputed writings. A court which is not holding an enquiry under the Code
of Criminal Procedure or conducting the trial is not permitted, on the plain
language of Section 73 of the Evidence Act, to issue any direction of the
nature contained in the second paragraph of Section 73 of the Evidence Act.
The words 'any Person present in the court' in Section 73 has a reference F
only to such persons who are parties to a cause pending before the court and
in a given case may even include the witnesses in the said lause but where
there is no cause pending before the Court for its determination, the ques-
tion of obtaining for the purposes of comparison of the handwriting of a
person may not arise at all and therefore, the provisions of section 73 of the
G
Evidence Act would have no application. (1076-E-H & 1077-A]

4.3 In the instant case, on the basis of the evidence on record and
the infirmity in the matter of taking of the specimen handwriting of one of
·- the appellants it could be concluded that the prosecution has failed to
establish that the letters Ex.PA & PC were authored by Sukhdev Paul. H
1064 SUPREME COURT REPORTS [1994] 3 S.C.R.

A There.. is no other circumstance relied upon by the prOsecution either
before the Designated Court or before this Court to connect Sukhdev Paul
with the crime. The Designated Court has not adverted to this aspect of
the case and it appears to have been blissfully ignorant of the provisions
of Section 73 of the Evidence Act. Therefore, the case against appellant
Sukhdev Paul has not been established by the prosecution beyond
B reasonable doubt. [1078-B-FJ

5. The disclosure statement Ex.PW 10/B made by the first appellant
and the recovery of the dead body pursuant to that disclosure statement
vide recovery memo Ex.PW lOE are both highly incriminating circumstan-
C ces in so far as the first appellant is concerned and both the circumstances
have not only been successfully established by the prosecution but they also
connect definitely and positively the first appellant with t~e crime. There
is no infirmity in so far as the evidence regarding the disclosure statement
or the recovery of the dead body is concerned. The chain of circumstances
against the first appellant is so complete that it excludes the possibility of
D any hypothesis other than the one which is consistent only with the guilt
of the first appellant and inconsistent with his innocence. All the cir-
cumstances relied upon by the prosecution against the first appelJ.ant
definitely and unerringly point towards his guilt and, taken cumulatively
form a chain so complete that there is no escape from the conclusion that
E the crime was committed by the first appellant and none else. [1080-D-H)

6. The conviction and sentence in respect of the appellants other than
the first appellant, are set aside. The conviction and sentence of the first
appellant under s.3 of TADA Act and s.120-B IPC are set aside, but he is
convicted for an offence under s.302 IPC and the sentence of imprisonment
F for life and a fine Rs. 5000 is maintained. [1081-C-DJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1 of 1994.
I
From the Judgment and Order dated 1.12.93 of the Designated
G Court, Kapurthala at Jalandhar in T.D. Sessions Case No. 60 of 1992.

R.S. Sohdhi for the Appellant.

Randhir Yadav and R.S. Suri for the Respondents.

H The Judgment of the Court was delivered by
SUKHVINDER , .. STATE OF PUNJAB [DR. ,\NAND,J.J 1065

DR. ANAND, J. This appeal under Section l') nf the Terrorist and A
Disruptive Acti,ities (Pre\'ention) Act, 1987 (hcreinal\er 'TADA') is
directed against the judgment and order of the D.::signated Court. Kapur-
thala, whereby the appellants have been convicted for nffences under
Section 302 read with Section 149/1208 !PC and Section 3 of TADA and
sentenced under Section 302/149 !PC to suffer imprisonment for life and
to pay a fine of Rs. 5000 each and in default to undergo further rigorous
B
imprisonment for 4 years; under Section 120B to undergo rigorous im-
prisonment for life and to pay 'a fine of Rs. 1000 each and in default of
payment of fine to undergo further imprisonment for one year and under
Section 3 of TADA to undergo rigorous imprisonment for life and to pay
fine of Rs. 4000 each and in default of payment of fine to undergo further c
rigorous imprisonment for 3 years each. All the substantive sentences were,
however, directed run concurrently.

The prosecution case is as follows :

D
Rakesh Kumar PW2 father of deceased Varun Kumar, made a
statement to the police on 16th of May, 1992 to the effect that on 12th of
May, 1992 his wife and son had gone to Phagwara earlier in the day and
on their return met him at his shop in the evening at about 6.15 p.m. His
son went away to play while his wife went to the house to prepare meals.
She shortly returned to the shop of Rakesh. Kumar PW2 bringing alongwith E
her a letter which she had picked from her house. In that letter, which was
a ransom note written in Hindi, it was stated that Varun Kumar Mittal'was
in the custody of the persons writing the Ieiter and that in case Rakesh
Kumar wanted to see him alive, he should bring Rs. 60,000 on Thursday,
exactly at 10.00 a.m. at Jalandhar Road ahead of Convent School and that F
he should come all alone and that in case· of any mischief, his son and his
wife would be lost to him for ever. The ransom letter also stated thai-after
the receipt of money, Varun Kumar .would reach either the house or the
shop within half an hour and that in case he tried to inform the police he
should understand the consequences. PW2 was advised through the letter
to keep the matter confined between himself and his wife and not to let G
anybody else knoWn about it. Rakesh Kumar PW2 acted accordingly and
on 14th of May, 1992, around 10.00 a.m., went to the specified place
alongwith the money but no one came to the spot. He then conducted
search for his son but could not trace him at all and on 16th of May, 1992
he lodged a complaint before the police, stating therein that some unknown H
1066 SUPREME COURT REPORTS [1994] 3 S.C.R.

A persons had abducted his son with intent to get some ransom and that the
abductors had threatened to kill his son. A case on the basis of the
complaint, FIR Ex.PB/l was registered at police station Nakodar for
offences under Section 354/149 !PC. The ransom letter Ex.PA was
produced by the complainant before the police who took it into possession
vi de recovery memo Ex.PD. Subsequently, another letter Ex.PC was also
B received at the house of PW2 and was handed over to the police. SI Amar
Singh took upon the investigation and prepared a rough site plan of the
spot, Ex.PWlO/A.

It is further the prosecution case that PW6, Bhajan Siogh, President
C of Truck Union, Nakodar and PW7 Kiran Deep Dhir, Secretary of BJP
were approached at Patel Chowk, Jalandhar by Sukhvinder Singh son of
Mohan Siogh, Puran Chand and Sukhdev Paul, who tvld the witnesses that
on 12.5.1992 at about 6.45 p.m. they had kidnapped Varun Kumar Mittal
from the street while he was playing and took him to the house of
D Sukhvinder Singh and killed him by throattling him and have buried his
body under the chaff. The three accused further told the witnesses that
Sukhdev Paul wrote two letters at the instance of Sukhvinder Siogh which
were thrown in the portion of the house occupied by the father of oeceased
•
Varun, Rakesh Kumar PW2, on 12.5.1992 and 14.5.1992 respectively. Ac-
cording to the prosecution case, the accused also disclosed to the witnesses
E that Sukhvinder Singh had told them that he had done so at the instance
of his father Mohan Singh and mother Surjit Kaur. The accused requested
the witnesses to produce them before the police, sioce they knew the
police. After the investigation of the case all the five appellants, Sukhvinder
Singh, his father .Mohan Singh mother Surjit Kaur alongwith Puran Chand
F and Sukhdev Paul were challaned and prosecuted for the murder of Varun
Kumar who was living alongwith his parents as a tenant in a portion of the
house belonging to Sukhvinder Singh and his parents.

On 25th of May, 1992 a police party headed by SI Amar Singh, PWlO
interrogated Sukhvinder Singh, Sukhdev Paul and Puran Chand, after
G taking them into custody. Sukhvinder Singh, Sukhdev Paul and Puran
Chand suffered disclosure statements, separately, Ex.PWlO/B, Ex. PWlO/C
and Ex. PWlO/D respectively. These disclosure statements were attested
by Hari Dutt and J ugal Kish ore witnesses. The disclosure statement of
Sukhvinder Singh and Puran Chand were also attested by Kashmir Siogh,
H SI. In these disclosure statements, the three accused are alleged to have
SUKHVINDER v. STATE OF PUNJAB [DR. ANAND, J.] 1067

separately disclosed that they had kidnapped Varun Kumar on 12.5.1992 A
at 6.45 a.m. and later on strangulated him and put his body in a gunny bag,
which they had concealed in the turiwala room of the residential house of
Sukhvinder Singh and that they could point out that place and get the dead
body recovered. The three accused then led the police party to the place ·
mentioned by them and got recovered the dead body of Varun Kumar from
that place after pointing it out. The dead body, after preparation of the
B
inquest report, was sent for post-mortem examination and Dr. J.S. Bajwa,
PWll who conducted the autopsy on the dead body opined that the cause
of death was due to asphyxia which was sufficient in the ordinary course
of nature to cause death. It was no receipt of this post-mortem report, Ex.
PWll/A, that the offence was converted to one under Section 302/149 !PC c
read with Section 120B !PC and Section 3 of TADA.

The two letters Ex. PA and Ex. PC allegedly written by Snkhdev Paul
appellant were earlier seized and taken into possession. To determine their
authorship, the specimen handwriting of Sukhdev Paul was obtained before D
Shri S.P. Garg, PW13. The specimen writing alongwith the original letters,
Ex.PA and Ex. PC, were then sent to the Director, Forensic Science
Laboratory, Punjab, Chandigarh for comparison. The Asst!. Director
(Documents) after comparing, the specimen writings with the disputed
writings in letters Ex. PA and Ex. PC. opined that there was similarity
between the two and that there were no characteristic differences between E
tji.e disputed writings and the specimen writings. The Asst!. Director
(Documents) Forensic Science Laboratory opined that the similarities
found between the questioned and the standard writings were significant
and sufficient and when considered collectively led him to the opinion of
their common authorship. p
..
The appellants were sent up for trial and after conclusion of the
prosecution evidence, in their statements recorded under Section 313 of
the Code of Criminal Procedure, they pleaded false implication and denied
the prosecution allegations against them.
G
Since, there are no eye witnesses to the actual murder of Varun
Kumar, the prosecution has relied upon the following pieces of circumstan-
tial evidence to connect the appellants with the criminal conspiracy the
murder of Varun Kumar. The circumstances relied upon by the prosecu-
tion both before the Designated Court and before us in short are : H
1068 SUPREME COURT REPORTS [1994] 3 S.C.R.

A (a) Conduct of the appellants and particularly of Sukhvinder
Singh appellant as deposed to by PWl, Raj Kumar;

(b) Letters Ex. PA and Ex. PC written by Sukhdev Paul as per the
opinion of the handwriting expert by which demand for ransom
was made for re]ease of Varun Kumar;
B
(c) Making of disclosure statements by Sukhvinder Singh, Sukhdev
Paul and Puran Chand, Ex. PWlO/B, PW10/C and PWID to the
effect that they had put the dead body in a gunny bag and
concealed the same in the turiwala room in the house of
C Sukhvinder Singh O\\ned by Mohan Singh and Surjit Kaur and that
they could get the same recovered;

( d) recovery of the dead body of Varun Kumar from the house of
Sukhvinder Singh, Mohan Singh and Surjit Kaur on the pointing
out of the three appellants pursuant to their disclosure statements;
D
( e) The deceased alongwith his parents was living as a tenant in
the house of Mohan Singh and the landlord wanted to get the
portion of the house under their tenancy vacated.

E The learned Designated Court after recording the evidence found
all the circumstances established and opined as follows :

"In view of my above detailed discussion to observe here that
accused Sukhvinder Singh, Puran Chand and Sukhdev Paul suc-
ceeded in murdering a minor child of 4-1J2 year, for obvious
F reasons as is apparent after going through the disclosure state-
ments suffered by them Ext. PWlO/B to Ex. PWlO/D and also the
recovery of the dead body vide Ex.PWlO/E from the turiwala room
of the residential house of accused Mohan Singh, Surjit Kaur and
Sukhvinper Singh. Similarly, the prosecution has succeeded in
establishing the guilt of Mohan Singh and Surjit Kaur as per
G statement of their son Sukhvinder Singh necessary intimation was
given by them for execution of the crime. I would not be going out
of the record if I observe here that in fact accused Sukhvinder
Singh, Puran Chand and Sukhdev Paul were having the blessings
of accused Mohan Singh and Surjit Kaur to execute the crime
H which was executed in minute detail because had Mohan Singh
SUKHVINDER v. STATE OF PUNJAB [DR.ANAND,J.] 1069
.
- and Surjit Kaur accused not been the active participants in this A
unlawful criminal conspiracy then they would have told the whole
fact to the police or lodged the protest to the police against their
son. They did not aa in such manner and from this an irresistible
inference can be drawn that Sukhvinder Singh, Pliran Chand and
Sukhdev Paul accused in active connivance with Mohan Singh and
Surjit Kaur did the unlawful act in murdering Varun Kumar with
B
the help of a fertile brain, carved out after much thought, consult-
ations and deliberations.

When two or more persons agree to do, or cause to be done.:

(1) an illegal act, or
c
(2) an act which is not illegal by illegal means, such an agreement
is designated a criminal conspiracy.

In the instant case all the accused formed an assembly which can D
conveniently be designated as unlawful assembly and all of them
were having the common object and this unlawful assembly com-
• mitted an offence in prosecution of the object of that assembly,
therefore, every member of that unlawful assembly is gnilty of the
offence. Further it be seen that all the accused in furtherance of E
the common object committed te"orist act by committing the murder
of Varnn Kumar with an intention to strike te"or in the minds of the
people. (Emphasis ours)

Thus, I am or the considered opinion that the prosecution has
been able to prove the guilt. of accused Sukhvinder Singh, Mohan F
Singh Surjit Kaur, Puran Chand and Sukhdev Paul beyond the
possibility of doubt. Thus the above mentioned accused are held
guilty of the offences under Sections 120B, 302 read with Section
149 of the Indian Penal Code and under Section 3 o'f the Terrorist
& Disruptive Activities (Prevention) Act, 1987."
G
Learned counsel for the appellants submitted before us th.at non of
the five circumstances relied upon by the prosecution had been established
in the case and that even otherwise all the alleged circumstances could not
be said to be not compatible "ith the innocence of the accused and
consistent only with the hypothesis of their guilt. It was submitted that the H
1070 SUPREME COURT REPORTS (1994] 3 S.C.R.

A Designated Court fell in serious error in relying upon the disclosure
statements of Sukhvinder Singh, Sukhdev Paul and Puran Chand Ex.
PWlO/B, Ex.PwlO/C and Ex. PWlO/D, leading to the recovery of the dead
body of the deceased, because a mere search of the house of accused
Mohan Singh, Surjit Kaur and Sukhvinder Singh by the investigating officer
B would have led him to the recovery of the dead body and, therefore
recourse to the provisions of Section 27 of the Evidence Act was an abuse
of the process of law. In this connection, learned counsel referred to the
statement of Bhajan Singh PW 6 who stated that he had disclosed to the
police about the presence of dead body in the house of Mohan Singh, as
disclosed to him by the accused and argued that the ritual of recovery
C under Section 27 of the Evidence Act was introduced to support a false
case. Even, otherwise learned counsel submitted, that the recovery was
doubtful and the disclosure statements pursuant to which the recovery is
said to have been made, did not inspire confidence and that the three
disclosure statements were not admissible in evidence. Learned counsel
D vehemently argued that the evidence relating to the conduct of the appel-
lants, which is the first circumstance relied upon by the prosecution, does
not bear scrutiny and the testimony of Raj Kumar PWl in any even does
not implicate all the appellants. He further submitted that Mohan Singh
and Surjit Kaur had been implicated on misguided suspicion and the
prosecutil'n had failed to proved that letters Ex.PA and Ex. PC were
E written by Sukhdev Pal. It was then argued that the specimen writings of
the appellants were not taken in accordance with the provisions of law and,
therefore, the report of Asst!. Director (Documents) Forensic Science
Laboratory, Chandigarh relied upon by the prosecution could not to the
aid to the prosecution to connect Sukhdev Paul appellant with the crime.
F Reference in this connection was made to the testimony of PWS and PW2.

Learned counsel for the State in reply submitted that the circums-
tances relied upon by the prosecution were consistent only with the
hypothesis of the guilt of the appellants and that each of the circumstance
had been positively established by the prosecution and all the circumstan-
G ces taken together unmistakably established that Ibey were the appellants
and appellants alone who had committed the crime, that since the appel-
lants had not raised any objection, at the time when their specimen writings
were taken, they could not be heard at this stage to complain about it, that
the recovery of the dead body from the house of one of the accused on the
H disclosure statements made by some of the accused connected all the
.1.

SUKHVINDER v. STATE OF PUNJAB [DR. ANAND, J.] 1071

appellants with the crime; and the law did not bar more than one disclosure A
statements to be made leading to one and the same discovery and therefore
urged that the disclosure statements did not suffer from any infirmity
whatsoever.

We have given our anxious consideration to the submissions made at B
the bar and have gone through the evidence with the assistance of learned
counsel for the parties.

The Designated Court convicted all the appellants for an offence
under Section 3 of TADA and sentenced them to rigorous imprisonment
for life and to pay a fine of Rs. 4000 each and, in default of payment of C
fine they were dir~cted to further undergo rigorous imprisonment for 3
years each. It appears to us that the conviction recorded by the learned
Designated Court under Section 3 of TADA is wholly unjustified. A bare
perusal of Section 3 of TADA would reveal that none of the ingredients
of that Section have been alleged and established in the case. The prosecu- D
tion evidence is totally insufficient to bring home the charge under Section
3 of TADA on any of the appellants. We must express our concern that
the learned Designated Court recorded conviction of all the appellants
' tinder Section 3 of TADA without any discussion whatsoever in the judg-
ment as to how the said provision was attracted to the facts of the case.
Merely because the investigating agency had charge sheeted the appellants E
for an offence under Section 3 of TADA, it did not mean that the
Designated Court had to act mechanically and not even examine whether
or not from the evidence led by the prosecution, an offence under Section
3 of TADA had been made before recording conviction under the said
provision. None of the prosecution witnesses, not even investigating officer, F
implicated any of the appellants for committing an offence under Section
3 of TADA and the prosecution led no evidence whatsoever to bring the
charge under that Section. Learned counsel for the respondents in all
fairness conceded that the conviction of all the appellants for an offence
under Section 3 of TADA was not made out. We, accordingly set aside the
conviction and sentence of all the appellants for the offence under Section G
3 of TADA and acquit them of the said charges.

So far as Mohan Singh and Surjit Kaur appellants are concerned, the

- only piece of circumstantial evidence relied upon by the prosecution
against them is the recovery of the dead body of Varun Kumar from their H
1072 SUPREME COURT REPORTS [1994] 3 S.C.R.

A house. Though, the prosecution initially made an effort to show that in
hatching the conspiracy to kidnap Varun Kumar and then to murder him, ·-
Mohan Singh and his wife Surjit Kaur, were instrumental, because as
landlords of the house they wanted to get the portion of the house under
the tenancy of the parents of Varun Kumar vacated and had instigated their
son Sukhvinder Singh to commit the crime, but a bare reference to the
B statements of PW8 and PW12 would show that this part of the prosecution
case has not been established, let alone proved beyond a reasonable doubt.
The story of getting the house vacated appears fo be a clumsy concoction.
There is not an iota of material to support it.

c The recovery of the dead body of Varun was made, on the basis of
the disclosure statements Ex. PWlO/B, Ex. PWlO/C and Ex. PWlO/D made
I
by Sukhvinder Singh, Sukhdev Paul and Puran Chand respectively and
therefore, to presume that Mohan Singh and Surjit Kaur "must also be a
party to it" as opined by the Designated Court is too much of a strain on
D intelligence and certainly the prosecution cannot be permitted the liberty
to rely on such fenciful presumptions against Mohan Singh and Surjit Kaur
on mere conjecturisation. Our independent analysis of the evidence on the
record shows that there is no material worth mentioning, to demonstrate _
that Mohan Singh appellant wanted the house vacated from PW2 or that
it was at the instance of Surjit Kaur or Mohan Singh that Sukhvinder Singh
E had acted or that Mohan Singh and Surjit Kaur has any knowledge about
the concealment of the dead bodyof the deceased in the 'Turiwala' room
in their house. The finding of.the Designated Co_urt regarding the implica-
tion of Mohan Singh and Surjit Kaur is based on mere conjectures and
surmises and not on any admissible evidence. The circumstantial evidence
relied upon the prosecution to connect Mohan Singh and Surjit Kaur with
F
the crime is hopelessly deficient and the circumstance relied upon by the
prosecution to connect Mohan Singh and Surjit Kaur with the crime have
not been established beyond a reasonable doubt.

We shall now take up the case of the three remaining appellants,
G namely, Sukhdev Paul, Puran Chand and Sukhvinder Singh.

The first piece of circumstantial evidence relied upon against them
revolves around the recovery of the dead body of Varun Kumar from the
house of Sukhvinder Singh and his parents on the disclosure statement
H made by Sukhvinder Singh, Sukhdev Paul and Puran Chand Ex. PW.10/B,
SUKHVINDER v. STATE OF PUNJAB [DR. ANAND, J.] 1073

EX. PWlO/C and Ex. PWlO/D respectively. We .are surprised at the A
manner in which the disclosure statements were recorded by "the investigat-
ing agency "and relied upon by the Designated Court. That Section 27 of
the Evidence Act is an exception ta the general rule that a statement made
before the police is not admissible in evidence is not in doubt. However,
vide Section 27 of the Evidence Act, only so much of the statement of an B
accused is admissible in evidence as distinctly leads to the discovery of a
fact. Therefore, once the fact has been discovered Section 27 of the
Evidence Act cannot again be made use of to 're-discover' the discovered
fact. It would be a total misuse - even abuse-of the provisions of Section
27 of the Evidence Act. From the testimony of PW14, SI Kashmir Singh it C
transpires that in the presence of PWs Hari Dutt and Jugal Kishore during
the interrogation by SI Amar Singh, Sukhvinder Singh appellant made a
disclosure statement to the effect that he alongwith others had concealed
the dead body of Varun Kumar in the stack of hay in the room and that
he could get the same recovered. His disclosure statement Ex. PWlO/B was
accordingly recorded which was signed by him and attested by the panch D
witnesses. Except for the discovery of the dead body of Varun Kumar on
the basis of the disclosure statement of Sukhvinder Singh, EX.PWlO/B, no
other portion of the statement of Sukhvinder Singh implicating himself and
' others with the commission of the crime is admissible in evidence. After
the disclosure statement was made by Sukhvinder Singh disclosing as to E
where the dead body of V arun Kumar had been concealed and from where
it could be recovered, the recording of the disclosure statements of
Sukhdev Paul and Puran Chand Ex. PWlO/C and Ex. PWlO/D was a wholly
impermissible exercise and an obvious attempt to rope in Sukhdev Paul
and Puran Chand with the aid of Section 27 of the Evidence Act. Since,
the information had already been given by Sukhvinder Singh, appellant in
F
his disclosure statement Ex. PWlO/B, the two subsequent statements Ex.
PWlO/C and Ex.PWlO/D were not admissible in evidence because at the
best they were leading to the "re-discovery of a fact already disclosed and
capable of discovery. It has been admitted by PW14 that the disclosure
statement, Ex. PWIO/B, made by Sukhvinder Singh was the first in point G
of time and that he had disclosed where the dead body had been concealed
and that he could point out the place and get it recovered. The investigating
officer should have immediately acted upon disclosure statement Ex.
PWlO/B, rather than wait and record two more disclosure statements, as
if the authenticity of recovery of dead body could he achieved by the mere H
1074 SUPREME COURT REPORTS [1994) 3 S.C.R.

A number of disclosure statements leading to the discovery of one and the
same fact. In the face of the admission of PW14 as noticed above, it is
obvious that the so-called disclosure statements of Sukhdev Paul and Puran
Chand Ex. PWlO/C and Ex. PWlO/D were not admissible in evidence and
the Designated Court fell in error in relying upon the same. Admittedly,
so far as Puran Chand is concerned, apart from the disclosure statement
B Ex. PwlO/D, there is no other piece of circumstantial evidence relied upon
by the prosecution and once we rule out of consideration the disclosure
statement allegedly made by Puran Chand Ex. PWlO/D, the conclusion is
inescapable that the prosecution has not been able to establish the case
against Puran Chand beyond a reasonable doubt and there is no cir-
C cumstance which can connect him with the alleged crime. The prosecution
has Jed no evidence to show any connection inter-se so far as the three
appellants are concerned.

We shall now take up the case of Sukhdev Paul appellant. For the
reasons already recorded while dealing with the case of Puran Chand, we
D hold that the so-called disclosure statement, Ex PWlO/C, made by film is
also inadmissible and cannot be used to connect him with the crime. The
only other circumstance relied upon by the prosecution against him is that
he is the author of the ransom letters Ex. PA and Ex. PC. To establish that
the author of letters Ex. PA and PC is Sukhdev Paul. The prosecution has
E relied .upon the report of the Asstt. Director (Documents), Forensic
Science Laboratory, Chandigarh dated 12.6.1992 Ex. PWlO/J. The
specimen writing of Sukhdev Paul was taken by the Tehsildar Magistrate
PW13. It would, therefore, be relevant to first notice the provisions of
Section 73 of the Evidence Act. It reads :

F 73. Comparison of Signature, writing or seal with others admitted or
proved.:
11
In order to ascertain whether a signature} writing, or seal is that
of the person by whom it purports to have been written or made,
any signature, writing or seal admitted or proved to the satisfaction
G
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.

H The Court may direct any person present in Court to write any.
SUKHVINDER v. STATE OF PUNJAB {DR. ANAND, J.] 1075

--
,,,, words or figures for the purpose of enabling the Court to compare A
the words or figures so written with any words or figures alleged
to have been written by a persoii."

Under the Indian Evidence Act, two direct methods of proving the
handwriting of a person are :
B
(a) by an admission of a person who wrote it;

(b) by the evidence of some witness who saw it being written by that
person.

Apart from these, there are some other methods of proof of handwriting c
by opinion. They are :

(1) by the evidence of a handwriting expert (Section 45).

(2) by the evidence of a witness acquainted with the handwriting of
the person who is said to have written the disputed writing (Section 47).
D

(3) opinion formed by the Court itself on r.omparison made of the
• disputed writings with the admitted or specimen writings (Section 73).

We are concerned here primarily with the third mode.
E
A subsequent writing of an accused taken under the direction of the
court is in substance a specimen writing obtained for comparison of the
disputed writing with it. Though, Section 73 does not specifically say as to
who could make such a comparison but reading Section 73 as a whole, it
is obvious that it is the Court which has to make the comparison and it may F
form the opinion itself by comparing the disputed and the admitted writ-
ings or seek the assistance of an expert, to put before the Court all the
material, together with reasons, which induce the expert to come to a con-
clusion that the disputed and the admitted writings arc of one and the same
author so that the court may form its own opinion by its own assessment
G
of the report of the expert based on the data furnished by the expert. The
function of an handwriting expert if to opine after a scientific comparison
of the disputed writing with the admitted (specimen) writing with regard
to the points of similarity and dissimilarity in the two set of writings.

- The second paragraph of Section 73 (supra) enables the court to H
1076 SUPREME COURT REPORTS [1994] 3 S.C.R.
11
A direct any person present before it to give his specimen writing for the
purpose of enabling the court to compare" such writings with writings
alleged to have been written by such person. The obvious implication of
the words "for the purpose of enabling the court to compare" is that there
is some proceeding pending before the court in which or as a consequence
B of which it is necessary for the court to compare such writings. The
direction is therefore required to be given for the purpose of "enabling the
court to compare" and not for the purpose of enabling an investigating or
a prosecuting agency to obtain and produce as evidence in the case the
specimen writings for their ultimate comparison with the di~puted writings.
C Where the case is still under investigation and no proceeding are pending
in any court in which it might be necessary to compare the two writings,
the person (accused) cannot be compelled to give his specimen writings.
The language of Section 73 does not permit any court to give a direction
to an accused to give his specimen writing for comparison in a proceeding
D which may subsequently be instituted in some other competent court.
Section 73 of the Evidence Act cannot be made use of for collecting
specimen writings during the investigation and recourse to it can be had
only when ehe enquiry or the trial court before which proceedings are
pending requires the writing for the purpose of 'enabling it to compare'
the same. A court holding an enquiry under the Code of Criminal Proce-
E dure is indeed entitled under Section 73 of the Evidence Act to direct an
accused person appearing before it to give his specimen handwriting to
enable the court by which he may be subsequently tried to compare it with
the disputed writings. Therefore, in our opinion the court which can issue
a direction to the person to give his specimen writing can either by the
F court holding the eli/fuiry under the Code of Criminal Procedure or the
court trying the accused person with a view to enable it to compare the
specimen writings with the writings alleged to have been written by such a
person. A court which is not holding an enquiry under the Code of
Criminal Procedure or conducting the trial is not permitted, on the plain
G language of Section 73 of the Evidence Act, to issue any direction of the
nature contained in the second paragraph of Section 73 of the Evidence
Act. The words "any person present in the court11 in Section 73 has a
reference only to such person who are parties to a cause pending before
the court and in a given case may even include the witnesses iP the said
H cause but where there is no cause pending before the court for its deter-
SUKHVINDER v. STATE OF PUNJAB [DR. ANAND,J.) 1077"

..., mination, the question of obtaining for the purposes of comparison Of the A
handwriting of a person may not arise at all the therefore, the provi~ions
of Section 73 of the Evidence Act would have no application.

The specimen writings in the instant case of appellant Sukhdev Paul
were taken under the directions of Sh. S.P. Garg, Tehsildar executive
B
Magistrate, PW 13. No enquiry or trial was admittedly pending in the court
of the Tehsildar Executive Magistrate. The enquiry and trial in this case
were pending under TADA before the Designated Court only. The direc-
lion given by the Tehsildar Executive Magistrate Sh. S.P. Garg to the
appellant Sukhdev Paul to give his specimen writing was clearly unwar-
ranted and not contemplated or envisaged by Section 73 of the Evidence c
Act. The prosecution has not disclosed as to at what stage of investigation
or enquiry or trial was Sukhdev Paul appellant produced before the Ex-
ecutive Magistrate PW13 to take the specimen writing of the appellant and
why the specimen writings were obtained under directions of PW13 and
not of the Designated Court. It is a mystry as to how the specimen writings D
required to be used at the trial against the appellant were directed to be
I
taken by PW13, who was not enquiring or trying the case. To a specific
• question during his cross-examination, PW13 admitted at the trial, that
when he had issued the direction to the appellant there was not document
on his file which could go to show as to under whose orders the appellant E
had been sent to him for taking his specimen handwriting. The manner in
which the specimen writing of Sukhdev Paul was taken is totally objec-
tionable and against the provisions of Section 73 of the Evidence Act. The
Executive Magistrate PW13 appears to have been too obliging and did not
even care to examine the provisions of law before issuing the direction to F
the appellant. The argument of the learned counsel for the State that since
) _i
no objection was raised by the appellant when he was called upon to give
his specimen handwriting by PW13 therefore he cannot be permitted to
make a grievance now is only an argument of despair and the silence of
the appellant, who admittedly on that day, was not even represented by-an G
advocate, cannot certainly clothe PW13 with any jurisdiction to issue the
directions as envisaged by Section 73 of the Evidence Act. The specimen
writing of Sukhdev Paul could not, therefore, be made use of during the
Trial and the report of the handwriting expert, when considered in the light
..... of the foregoing discussion, is rendered of no consequence at all and H
----~-)

1078 SUPREME COURT REPORTS (1994]3 S.C.R.

A cann~t be used against Sukhdev Paul appellant to connect him with the
crime.

That apart it is relevant to point out that PWS Sulaxana, the mother
~f the deceased Varun Kumar stated during her deposition in court that
letters Ex.PA & PC 'are not those letters which I had found near the door
B on that day". The prosecution made no effort to shows to how Ex. PA and <
Ex. PC saw the light of the day, when PWS had totally discounted the
theory that she had given those to the police. Thus considering on the basis
of the evidence on the record and the infirmity in the matter of taking of
the specimen handwriting of the appellant, we are of the opinion that the
C prosecution has failed to establish that the letters Ex. PA & PC were
authored.by Sukhdev Paul. On~, we rule out of consideration, letters Ex.
PA & EX.PC as having been written by Sukhdev Paul appellant. There is
no other circumstance relied upon by the prosecution either before the
Designated Court or before us survives to connect Sukhdev Paul appellant
with the crime. The Designated Co~rt has not' adverted to much le~
D considered this aspect of the case and it appears to have-been blissfully
ignorant of the provisions of Section 73 ·of the Evidence Act: In the peculiar
facts and circumstances of the case as noticed above, the specimen writings
of Sukhdev Paul obtain under the directions' of PW13, who .was not
authorised to issue such a direction, could not be used by the Designated ·
E Court tci hold by relying on the expert evidence, that the disputed and the
admitted writings had a common author. We, therefore, fmd that the case
against Sukhdev Paul, appellant has not been established by the prosecu-
tion beyond a reasonable doubt.

It, now, takes us to the case of Sukhvinder Singh.
F
The circumstances relied upon by the prosecution to connect
Sukhvinder Singh with the crime are :

(1) the conduct of Sukhvinder Singh appellant as deposed to by
G PWl Raj Kumar;

(2) the making of disclosure statement by Sukhvinder Singh
Ex.PW10/B;

(3) recovery of the dead body of Varun Kumar from the house of
H Sukhvinder s.ingh pursuant 'to the above disclosure statement on
'"

. SUKHVINDER v. STATE OF PUNJAB [DR ANAND, J.] 1079

the pointing oul of Sukhvinder Singh. A

Though, at the trial another circumstance had also been pressed into
aid agaimt Sukhvinder Singh namely, the conspiracy between him and his
parents with a view to evict Rakesh Kumar PW2 and have the portion of
the house under his tenancy vacated but that circumstance was rightly not
pressed before us and even otherwise in view of our findings regarding that
B
circumstance while dealing with the case of Mohan Singh and Surjit Kaur
it follows that the said circumstance cannot be used much less relied upon
to connect Sukhvinder Singh with the alleged crime. Since, the witnesses
to the alleged extra judicial confession turned hostile, no reliance was
placed and rightly so on the so-called extra-judicial confession to connect c
this appellant with the crime. We are, therefore, left with the three cir-
cumstances as noticed above and shall consider them hereafter.

From the testimony of PW!, Raj Kumar, the maternal uncle of the
deceased il transpires that when he was going to the first floor of his sister's D
house on the day when Varun was found missing, he had found three boys
and had identified Sukhvinder Singh as one of them. He had found him to
be in a perplexed state of mind. This conduct of Sukhvinder Singh, on the
date when Varun was abducted, is quite indicative of the complicity of
Sukhvinder Singh. Raj Kumar PWl was not at all challenged during his E
cross-examination about his noticing the perplexed state of the ·mind of
Sukhvinder Singh. Though, this conduct of Sukhvinder Singh by itself may
not be of much consequence but when considered alongwith the other two
circumstances, that is the disclosure statement Ex. PWlO/B suffered by
Sukhvinder Singh leading to the recovery of the dead body from his house
on his pointing out, assumes much significance. From the evidence on the F
record, we are satisfied that the disclosure statement Ex. PWlO/B was
made by Sukhvinder Singh voluntarily. In that behalf the evidence of PWlO
Amar Singh, SI and PW14 SI Kashmir Singh is cogent and trustworthy.
They both deposed about the manner in which Sukhvinder Singh had made
the disclosure statement Ex. PWlO/B which was signed by Sukhvinder G
Singh and attested by the panch witnesses. That was the first disclosure
statement in point of time giying any indication about the concealment of
the dead body in the Turiwala room of Sukhvinder Singh's house. Their
evidence also shows that Sukhvinder Singh had led the police party to the
turiwala room of his residential house and pointed out the place from H
1080 S\JPREME COURT REPOR'rs 11994] 3 S.C.R.

A where the dead body of Varun Kumar was recovered from a gunny bag
concealed under a heap of Turi. Despite lengthy cross-examination of
PWlO and PWl 4, nothing has been brought from which any doubt could
be cast on their testimony, regarding the disclosure statement Ex. PWlO/B
made by Sukhvinder Singh or the recovery of the dead body of Yarun
B Kumar on the pointing out of Sukhvinder Singh vide recovery memo
Ex.PWlO/E pursuant to the said disclosure statement. As a matter of fact
the evidence of these witnesses which both cogent and inspires confidence,
has remained totally unchallenged on any material aspect relating to the
disclosure statement and the recovery of the dead body. The argument of
the learned counsel for the appellant that had the investigating agency been
c more vigilant and had searched the place before the disclosure statement
was made, they would have been able to discover the dead body of the
deceased from the house of Sukhvinder Singh, may go to show that the
investigating agency was somewhat negligent but by no stretch ot imagina-
tion can it be used to discredit. The disclosure statement Ex.PWlO/B made
D by Sukhvinder Singh and the recovery of the dead body pursuant to that
disclosure statement vide recovery memo Ex.PWlO/E. These are both
highly incriminating circumstance in so far as Sukhvinder Singh is con-
cerned and both the circumstances have not only been successfully estab-
!ished by the prosecution but they also connect definitely and positively
E Sukhvinder Singh with the crime. Learned counsel for the appellant was
unable to point out any there is no infirmity in so far as the evidence
regarding the disclosure statement or the recovery of the dead body is
concerned. Each one of these circumstances which has been established by
the prosecution against Sukhvinder Singh has been successfully proved.
F The chain of circumstances against Sukhvinder Singh is so complete that
if excludes the possibility of any hypothesis other than the one which is ' \
consistent only with the guilt of Sukhvinder Singh and inconsistent with his
innocence. All the circumstances from which the inferences have been
drawn by us have been firmly established by the prosecution and have
G remained unchallenged in the cross-examination of the prosecution wit-
nesses. All the circumstances relied upon by the prosecution against
Sukhvinder Singh definitely and unerringly point towards the guilt of
Sukhvin<ler Singh appellant and taken cumulatively form a chain so com-

H
plete that there is no escape from the conclusion that the crime was
committed by Sukhvinder Singh appellant and none else. The medical - '
SUKHYINilER v. STATE OF PUNJAB [DR. ANAND, J.] 1081

evidence also lends credence to the prosecution cas~ against _Sukhvinder A
Singh. May be, he also had some accomplices but since the prose~_~tion
evidence is deficient, on that account, it is not possible to identify those
accomplices. Nonetheless, .we find that the prosecution has established the
case against Sukhvinder Singh beyond every reasonable doubt. We accord-
ingly convict him for an affiance under Section 302 !PC and maintain the B
sentence of imprisonment for life and a fine of 5000 and in default of
payment of fine, to further undergo rigorous imprisonment for a period of
four years as recorded by the Designated Court. The conviction and
sentence of Sukhvinder Singh for the offence under Section 120 B !PC is,
however, set aside.
c
As a result of the above discussion the appeal in so far as Mohan
Singh, Swjit Kaur, Puran Chand and Sukhdev Paul appellants are con-
cerned, is accepted and their convictions and sentences are set aside. The
appeal of Sukhvinder Singh is partly allowed and his conviction and sen-
tence under Section 3 of TADA and Section 120-B !PC is set aside. In all D
other respects his appeal fails. For his conviction for an offence under
Section 302 !PC, he is sentenced to imprisonment for life and to pay a fine
of Rs. 5000 and in default of payment of fine to suffer four years rigorous
imprisonment.
l
The four acquitted appellants, other than Sukhvinder Singh, shall be E
released from custody forthwith, if not required in any other case.

B.V.B.D. Appeal Partly allowed.

II
_J

I
I

'I