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Buta Singh And Ors vs State Of Punjab on 20 December, 2018

CRA-D No. 590-DB of 2003 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D No. 590-DB of 2003 (OM)
Reserved on : 11.12.2018
Date of decision : 20.12.2018

Buta Singh and others …. Appellants
versus
State of Punjab … Respondent

Coram: Hon’ble Mr. Justice Rajiv Sharma
Hon’ble Mr. Justice Harinder Singh Sidhu

Present Mr. Sanjeev Sharma, Advocate, for the appellants.
Mr. Rajesh Bhardwaj, Sr. Deputy Advocate General, Punjab.

Rajiv Sharma, J.

1. The present appeal is instituted against the judgment and order

dated 3.1.2003, rendered by Additional Sessions Judge (Adhoc), Fast Track

Court, Patiala, in Sessions Case No. 4/18.1.2001, vide which accused Buta

Singh, Sushma, Satya Wanti and Sanjiv Kumar alias Sonu, were charged

with and tried for the offences punishable under Sections 302/109/34 IPC.

2. Accused Satya Wanti and Sanjiv Kumar alias Sonu were

convicted and sentenced under Sections 302/34 IPC to undergo life

imprisonment and to pay fine of ` 1,000/-, each. Accused Buta Singh and

Sushma were convicted and sentenced under Section 109 IPC read with

Section 302 IPC to undergo life imprisonment and to pay fine of ` 1,000/-,

each. In default of payment of fine, each accused was directed to further

undergo rigorous imprisonment for six months.

3. The case of the prosecution in a nutshell is that on 7.8.2000,

Sub-Inspector William Jeji, SHO, Police Station, Rajpura, along with ASI

Pawan Kumar and other police officials was present in Gagan Chowk,

Rajpura. PW6 Gulshan Kumar lodged a complaint with him. According to

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him, Raj Kishan son of Puran Chand Pandit resident of Chhitan Wala

(Nabha) was the son of his wife Jagdish Rani’s maternal uncle and was his

brother-in-law. Ram Kishan was on visiting terms to the house of Khem

Chand resident of Chhajju Majri. Sushma Rani daughter of Khem Chand

was previously married at Ludhiana. She was divorced. Then they arranged

marriage of Sushma with Ram Kishan, which was solemnized in the year

1995. The relations between Ram Kishan and Sushma were strained.

Yesterday at about 8.00 P.M. Ram Kishan had come to him at his shop. He

told him that he was going to the house of his mother-in-law to see his son.

That day i.e. 7.8.2000 at about 7.00 A.M., he was going outside to ease

himself when he heard ruckus in mohalla that a dead-body of a man was

lying in the vacant plot adjoining to the house of Satya Devi. He reached at

the spot. He found the dead-body of Ram Kishan. Ram Kishan was

murdered by some unknown person. He informed Kewal Sharma and Sonu

Sharma brothers of Ram Kishan. Statement is Ex.PG. Police took into

possession the clothes of the deceased. Inquest report was prepared vide

Ex.PD. Post-mortem was conducted on the dead-body of Ram Kishan.

Photographs were also taken. Investigation was completed and challan was

put up after completion of all the codal formalities.

4. The prosecution examined a number of witnesses in support of

the case. The statements of the accused were also recorded under Section

313 Cr.P.C. They have denied the case of the prosecution. They were

convicted and sentenced, as noticed above. Hence, the present appeal.

5. Learned counsel appearing on behalf of the appellants

vehemently argued that the prosecution has failed to prove its case. Learned

counsel appearing for the State vehemently argued that the prosecution has

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proved its case beyond reasonable doubt and supported the judgment of the

learned Court below.

6. We have heard learned counsel for the parties and gone through

the judgment and record very carefully.

7. PW1 ASI Pawan Kumar testified that on 7.8.2000, they were

present at Gagan Chowk, Rajpura, when a complaint was lodged by

Gulshan Kumar with SI William Jeji, SHO, Police Station City Rajpura.

Endorsement was made by Sub-Inspector. The spot was visited by the

police. The clothes were taken into possession.

8. PW3 Dr. Manjit Singh had conducted the post-mortem

examination. According to him, face was congested above the level of

angles of mandible. No mark of ligature was present on the neck. No grass

was present on the left hand but some amount of soil was present sticking to

the palm and index finger of left hand. On dissection of neck infiltration of

blood was present in the layers deeper to the facia, specially around the

neuro vascular bundle at the level of thyroid cartilage on left side. Thyroid

cartilage was cracked in the midline. Hyoid bone was fractured just to the

left of the midline. He proved post-mortem report, Ex.PC. Time between

death and post-mortem was 12 to 24 hours. The cause of death according to

the doctor was due to strangulation leading to impairment of blood supply

to the brain and causing asphyxia. No poison was detected in the viscera as

per chemical analysis report. In his cross-examination, he admitted that no

finger marks were found on the neck of the dead-body. There was no

evidence of alcohol in the report of chemical analysis. Time between the

injury and death could be of few minutes.

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9. PW6 Gulshan Kumar testified that on 6.8.2000 Ram Kishan

(deceased) had come to him and told that he was going to see his son at the

residence of Sushma. On 7.8.2000 at about 6.00 A.M., when he went

outside the house to ease himself, there was ruckus. He noticed that dead-

body of Ram Kishan was lying in the vacant plot near the house of Satya

Devi. Report was lodged. In his cross-examination, he admitted that Ram

Kishan and Sushma had strained relations. In his examination-in-chief, he

has stated that Sushma had filed divorce petition in the Court.

10. PW7 Jasbir Singh is the material witness. He deposed that he

was selling muniari articles on cycle. On 20.8.2000 i.e. Sunday, he was

coming from village Bhappal. He was taking tea on Fauji Dhaba in Gagan

Chowk, Rajpura. Buta Singh and Sushma were taking meals in that Dhaba

behind him. Buta Singh was under the influence of liquor. He was saying to

Sushma that their plan had succeeded. They had liquidated Ram Kishan.

Their love affair has won. Sushma said that now no finger would be raised

on them. Thereafter, they went outside. He also deposed that few days prior

to this, there was rumor that Ram Kishan was murdered. In his cross-

examination, he admitted that he did not raise alarm when he heard the

conversation between Buta Singh and Sushma about the murder. This

information was given to the police on 28.8.2000.

11. PW8 Mela Singh is another material witness. He deposed that

on 6.8.2000 at about 5.00 P.M. Ram Kishan had met him in his shop. He

was married to Sushma. He asked Ram Kishan the purpose of his visit to

Rajpura. He told that he had come to see his son. On 7.8.2000, he woke up

at about 6.00/7.00 A.M. He heard the noise. He noticed that dead-body of

Ram Kishan lying in a vacant plot adjoining to the house of Satya Devi. On

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9.8.2000, Satya Devi came to his house in the evening. She told him that

divorce case of Sushma Rani and Ram Kishan was pending. Sushma had

developed illicit relations with Buta Singh. On 6.8.2000, Ram Kishan had

come to their house at 9.00 P.M. Ram Kishan had also told Satya Devi that

she and Sonu had spoiled his matrimonial life. He was taunting. Sonu

pushed Ram Kishan on the ground. Sonu sat on his chest. Sonu and Satya

Devi strangulated Ram Kishan. She also pleaded before him that She be

produced before the police. He told Satya Devi to come after some time. In

his cross-examination, he admitted that he was neither Sarpanch nor Panch

of the village. He has reported the matter to the police for the first time on

12.8.2000.

12. PW9 Sonu Sharma is the brother of the deceased. According to

him, Sushma eloped with Buta Singh on 8.5.2000.

13. The prosecution has not examined the Investigating Officer. It

was necessary for the prosecution to examine the Investigating Officer. The

case is based on circumstantial evidence. In order to prove the case based on

circumstantial evidence, the chain must be complete.

14. In the instant case, as per the version of PW6 Gulshan Kumar,

the relations between Sushma and Ram Kishan were strained. Sushma had

filed divorce petition against Ram Kishan. According to PW6 Gulshan

Kumar, on 6.8.2000 Ram Kishan had told him that he was going to see his

son at the residence of his mother-in-law. On 7.8.2000 at about 6.00 A.M.,

when he went to ease himself, there was ruckus. The dead-body of Ram

Kishan was lying in the vacant plot near the house of Satya Devi. PW7

Jasbir Singh deposed that on 20.8.2000 when he was taking tea at Fauji

Dhaba in Gagan Chowk, Rajpura, Buta Singh and Sushma were taking

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meals in that Dhaba behind him. He overheard Buta Singh and Sushma,

how the deceased was eliminated. He overheard accused Buta Singh and

Sushma on 20.8.2000 but reported the matter to the police on 28.8.2000. In

case he had overheard Buta Singh and Sushma about the murder of Ram

Kishan, he should have immediately reported the matter to the police or

raised alarm then and there.

15. The statement of the prosecution witness PW8 Mela Singh does

not inspire confidence. He was neither Sarpanch nor Panch of the village.

He was not a man of authority. There was no occasion for Sushma to visit

him. On 9.8.2000, Satya Devi made an extra-judicial confession before him.

He has admitted in his cross-examination that he informed the police only

on 12.8.2000. In case Satya Devi had made extra-judicial confession about

the murder of Ram Kishan on 9.8.2000 before him, he should have

immediately reported the matter to the police instead of waiting till

12.8.2000. Extra-judicial confession is a weak evidence. It is required to be

corroborated by other evidence.

16. The cause of death was due to strangulation leading to

impairment of blood supply to the brain and causing asphyxia. No finger

marks were found on the neck of the dead-body. As per PW3 Dr. Manjit

Singh, no poison was detected in the viscera of the deceased.

17. The case is based on circumstantial evidence. In order to prove

the case based on circumstantial evidence, chain must be complete. In the

present case, the chain is not complete.

18. Their Lordships of Hon’ble the Supreme Court in the case of

Sharad Birdhichand Sarda vs State of Maharashtra, AIR 1984 SC 1622

have held that following conditions must be fulfilled before a case against

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an accused based on circumstantial evidence can be said to be fully

established: –

“152. A close analysis of this decision would show that
the following conditions must be fulfilled before a case against
an accused can be said to be fully established:

(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or should
be proved” as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra where the observations were
made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between ‘may
be’ and ‘must be’ is long and divides vague conjectures
from sure conclusions.”

(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,

(3) the circumstances should be of a conclusive nature
and tendency,

(4) they should exclude every possible hypothesis
except the one 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.

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153. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”

19. Their Lordships of Hon’ble the Supreme Court in Kishore

Chand vs State of Himachal Pradesh, AIR 1990 SC 2140, have held that the

Court has to look into the surrounding circumstances and to find whether

the extra-judicial confession is not inspired by any improper or collateral

consideration or circumvention of the law suggesting that it may not be true

one. For this purpose, the Court must scrutinize all the relevant facts such as

the person, to whom the confession is made, the time and place of making it,

the circumstances in which it was made and finally, the actual words used

by the accused. Their Lordships have further held that an extra judicial

confession made by the accused, while in police custody, could not be

proved against the accused. Their Lordships have held as under:-

“7. The question that emerges, therefore, is whether
the prosecution has established the three circumstantial
evidences heavily banked upon by the prosecution in
proof of the guilt of the appellant. The first circumstance
is that the deceased and the appellant were last seen
together by PW 7 and PW 8. From the evidence it is clear
that there is no prior intimacy of the appellant and the
deceased. They happened to meet perchance. Equally
from the evidence it is clear that PW 7, the liquor shop
owner and PW 8 who had liquor with the appellant and
the deceased are also absolute strangers to the deceased
and the appellant. Admittedly there is no identification
parade conducted by the prosecution to identify the
appellant by PW 7 or PW 8. The appellant was stated to
have pointed out to PW 7 as the one that sold the liquor
and PW 8 consumed it with him and the deceased.

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Therefore it is not reasonably possible to accept the
testimony of PW 7 and PW 8 when they professed that
they have seen the appellant and the deceased together
consuming the liquor. It is highly artificial and appears
on its face a make believe story. The next piece of
evidence is the alleged extra-judicial confession made by
the appellant to PW 10. An unambiguous extra-judicial
confession possesses high probative value force as it
emanates from the person who committed the crime and
is admissible in evidence provided it is free from
suspicion and suggestion of its falsity. But in the process
of the proof of the alleged confession the court has to be
satisfied that it is a voluntary one and does not appear to
be the result of inducement, threat or promise envisaged
under Section 24 of the Evidence Act or was brought
about in suspicious circumstances to circumvent Sections
25 and 26 of the Evidence Act. Therefore, the court has
to look into the surrounding circumstances and to find
whether the extra-judicial confession is not inspired by
any improper or collateral consideration or
circumvention of the law suggesting that it may not be
true one. For this purpose the court must scrutinise all the
relevant facts such as the person to whom the confession
is made, the time and place of making it, the
circumstances in which it was made and finally the actual
words used by the accused. Extra-judicial confession if
found to be voluntary, can be relied upon by the court
along with other evidence on record. Therefore, even the
extra- judicial confession will also have to be proved like
any other fact. The value of the evidence as to the
confession depends upon the veracity of the witness to
whom it is made and the circumstances in which it came
to be made and the actual words used by the accused.

Sometimes it may not be possible to the witness to
reproduce the actual words in which the confession was

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made. For that reason the law insists on recording the
statement by a Judicial Magistrate after administering all
necessary warnings to the accused that it would be used
as evidence against him.

8. Admittedly PW 10 and the appellant do not belong
to the same village. From the narrative of the prosecution
story it is clear that PW 27, and PW 10 came together
and apprehended the appellant from his village and was
taken to Jassur for identification. After he was identified
by PW 7 and PW 8 it was stated that he was brought back
to Gaggal village of PW 10 and was kept in his company
and PW 27 left for further investigation. Section 25 of
the Evidence Act provides that no confession made to a
police officer shall be proved as against a person accused
of any offence. Section 26 provides that no confession
made by any person while he is under custody of the
police officer, unless it be made in the immediate
presence of a magistrate, shall be proved as against such
person. Therefore, the confession made by an accused
person to a police officer is irrelevant by operation of
Section 25 and it shall (sic not) be proved against the
appellant. Likewise the confession made by the appellant
while he is in the custody of the police shall not be
proved against the appellant unless it is made in the
immediate presence of the magistrate, by operation of
Section 26 thereof. Admittedly the appellant did not
make any confession in the presence of the magistrate.
The question, therefore, is whether the appellant made
the extra-judicial confession while he was in the police
custody. It is incredible to believe that the police officer,
PW 27, after having got identified the appellant by PW 7
and PW 8 as the one last seen in the company of the
deceased would have left the appellant without taking
him into custody. It is obvious, that with a view to avoid

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the rigour of Section 25 and 26, PW 27 created an
artificial scenario of his leaving for further investigation
and kept the appellant in the custody of PW 10, the
Pradhan to make an extra-judicial confession. Nothing
prevented PW 27 to take the appellant to a Judicial
Magistrate and have his confession recorded as provided
under Section 164 of the CrPC which possesses great
probative value and affords an unerring assurance to the
court. It is too incredulous to believe that for mere asking
to tell the truth the appellant made voluntarily confession
to PW 10 and that too sitting in a hotel. The other person
in whose presence it was stated to have been made was
not examined to provide any corroboration to the
testimony of PW 10. Therefore, it would be legitimate to
conclude that the appellant was taken into the police
custody and while the accused was in the custody, the
extra-judicial confession was obtained through PW 10
who accommodated the prosecution (sic appellant).
Thereby we can safely reach an irresistible conclusion
that the alleged extra-judicial confession statement was
made while the appellant was in the police custody. It is
well settled law that Sections 25 and 26 shall be
construed strictly. Therefore, by operation of Section 26
of the Evidence Act, the confession made by the
appellant to PW 10 while he was in the custody of the
police officer (PW 27) shall not be proved against the
appellant. In this view it is unnecessary to go into the
voluntary nature of the confession etc.”

20. Their Lordships of Hon’ble the Supreme Court in Kahim Beg

and another vs State of U.P., 1972 (3) SCC 759, have held that extra

judicial confession is a weak piece of evidence. Their Lordships have held

as under:-

“18. We may now deal with the evidence regarding

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the extra- judicial confession of the two accused to
Mohammad Nasim Khan (PW 4) and the recovery of
ornaments belonging to the deceased from the two
accused. It is primarily upon these two pieces of
prosecution evidence that the conviction of the accused
has been based. So far as the confession to Mohd. Nasim
Khan is concerned, we find that, according to the said
witness, the two accused came to him at his house in
Sakunpur on August 4, 1969 and told him about their
having raped and killed the daughter of Ramjas by
strangulating her as well as regarding the removal of her
ornaments. Mohammad Nasim Khan belongs to another
village. There was no history of previous association
between the witness and the two accused as may justify
the inference that the accused could repose confidence in
him. In the circumstances, it seems highly improbable
that the two accused would go to Mohammad Nasim
Khan and blurt out a confession. It is also not clear as to
why the two accused should try to run away on seeing the
police party coming with Mohammad Nasim Khan if
Mohammad Nasim Khan had gone to the police at the
request of the accused. According to Mohammad Nasim
Khan, Gur Sewak PW was with the police Sub-Inspector
when the Sub-Inspector came with Mohammad Nasim
Khan to his house and apprehended the accused. The
evidence of Ramjas PW, however, shows that Gur Sewak
PW went with Ramjas to the mortuary on the night
between 3 and 4 August, 1969 and that on August 4,
1969 Sur Sewak remained with Ramjas throughout the
day at Rae Bareli. It was on August 5, 1969 that,
according to Ramjas, he and Gur Sewak returned to their
village after throwing the dead body of Kesh Kali in Sain
river. It would thus appear that Ramjas PW who, being
the father of the deceased, had no particular reason to
damage the prosecution case and to support the accused

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has contradicted Mohammad Nasim Khan on the point
that Gur Sewak PW was with the police Sub-Inspector on
August 4, 1969. The fact that Mohammad Nasim Khan
has deposed regarding the presence of Gur Sewak with
the police Sub-Inspector with a view to support. the
prosecution case even though, according to Ramjas PW,
Gur Sewak was not with the police Sub-Inspector shows
that Mohammad Nasim Khan has scant regard for truth.
The evidence of extra-judicial confession is a weak piece
of evidence. The evidence in this respect adduced by the
prosecution in the present case is not only of a frail
nature, it is lacking in probability and does not inspire
confidence.”

21. Their Lordships of Hon’ble the Supreme Court in Pakkirisamy

vs State of T. N., 1997 (8) SCC 158, have held that it is a rule of caution that

the Court would generally look for an independent reliable corroboration

before placing any reliance upon an extra- judicial confession. Their

Lordships have held as under:-

“8. Mr. Murlidhar, learned counsel then
contended that it is well settled that the evidence of
extra-judicial confession is a weak type of evidence and
ordinarily the court would be slow to accept such type of
evidence. He therefore, urged that Ex. P-8 be left out of
consideration. We are unable to accept this broad
proposition put forth on behalf of the appellant. It is well
settled that it is a rule of caution where the court would
generally look for an independent reliable corroboration
before placing any reliance upon such extra-judicial
confession. It is no doubt true that extra-judicial
confession by its very nature is rather a weak type of
evidence and it is for this reason that a duty is cast upon
the court to look for corroboration from other reliable

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evidence on record. Such evidence requires appreciation
with a great deal of care and caution. If such an extra-
judicial confession is surrounded by suspicious
circumstances, needless to state that its credibility
becomes doubtful and consequently it loses its
importance. The same principle has been enunciated by
this Court in Balwinder Singh v. State of Punjab. In the
facts and circumstances of this case, we hold that the
courts below committed no error in relying upon Ex. P-8
as the same is corroborated from several other proved
circumstances.”

22. Their Lordships of Hon’ble the Supreme Court in State of

Andhra Pradesh vs S. Swarnalatha and others, 2009 (8) SCC 383, have

held that extra-judicial confession is a weak piece of evidence, although in

given situations reliance can be placed thereupon. Their Lordships have

held as under: –

“16. PW 6 admitted that prior to the making of
confession to him, Accused 1 never talked to him. Why
she, instead of her husband, would confide in PW 6, is
beyond all comprehension. In the aforementioned
situation, the extra-judicial confession purported to have
been made by Accused 1 to PW 6 becomes doubtful.
Extra-judicial confession as is well known is a weak
piece of evidence, although in given situations reliance
thereupon can be placed. (See State of U.P. v. M. K.
Anthony, SCC p. 517, para 15 and State of Rajasthan v.
Kashi Ram, SCC p. 262, para 14.)”

23. Their Lordships of Hon’ble the Supreme Court in Sahadevan

and another vs State of Tamil Nadu, 2012 (6) SCC 403, have held that in a

case of circumstantial evidence, onus lies upon prosecution to prove the

complete chain of events which must undoubtedly point towards guilt of

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accused. When prosecution relies upon an extra judicial confession, the

Court has to examine the same with a greater degree of care and caution.

Their Lordships have held as under: –

“13. There is no doubt that in the present case
there is no eye- witness. It is a case based upon
circumstantial evidence. In case of circumstantial
evidence, the onus lies upon the prosecution to prove the
complete chain of events which shall undoubtedly point
towards the guilt of the accused. Furthermore, in case of
circumstantial evidence, where the prosecution relies
upon an extra-judicial confession, the court has to
examine the same with a greater degree of care and
caution.”

24. The prosecution has failed to prove the case against the

appellants beyond reasonable doubt. Accordingly, the appeal is allowed and

the judgment and order dated 3.1.2003, are set aside. Their bail bonds are

discharged.

(Rajiv Sharma)
Judge

20.12.2018 (Harinder Singh Sidhu)
vs Judge

Whether speaking/reasoned Yes/No

Whether reportable Yes/No

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