1994 Supreme(SC) 549

SUPREME COURT OF INDIA
Dr. A.S. Anand and Faizan Uddin, JJ.
Sukhvinder Singh & Ors. - Appellants
versus
State of Punjab - Respondent
Criminal Appeal No.1 of 1994
Decided on 12.5.1994

IMPORTANT POINT
The Court which can issue a direction to the person to give his specimen writing can either by the Court holding the enquiry or the Court trying the accused person.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 3 - Conviction under - Appeal- None of the ingredients of Sec. 3 alleged - No discussion is the judgment as to how the said provision was attracted to the facts of the case - Non of the prosecution witnesses implicated any of the appellants for committing an offence u/s. 3 of the Act - Conviction recorded by Designated Court is wholly unjustified - Accused to be acquitted of the said charges. (Para 11)

       (ii) Indian Penal Code, 1860 - Sections 302 and 120 B - Conviction under - Appeal - No eye witness - Only evidence relied upon against appellants is the recovery of dead body from their house - No evidence that appellants had any knowledge about concealment of the dead body in their house - Implication of appellants based on mere conjectures and surmises and not on any admissible evidence - Circumstantial evidence relied upon is deficient - Conviction not sustainable. (Para 13)

       (iii) Indian Penal Code, 1860 - Sections 302 and 120 B - Conviction under - Appeal Discovery of dead body on the basis of disclosure statement - Disclosure statement first made by accused S disclosing as to where the dead body has been concealed - Recording disclosure statement of appellant P after that is wholly impermissible exercise - Conviction based on such a statement is not sustainable. (Evidence Act, 1872 - Section 27)

       Held: We are surprised at the manner in which the disclosure statements were recorded by the investigating agency and relied upon the Designate Court. That Sector 27 of the Evidence Act is an exception to 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 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 against 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 P.W. 14, SI Kashmir Singh it transpires that in the presence of P.Ws: Hari Dutt and Jugal Kishore during the interrogation by SI Amar Singh, Sukhvinder Singh appellant made a disclosure statement to the effect that he along with others had concealed the dead body of the Varun Kumar in the stack of hay in the room and that he could get the same recovered. His disclosure statement Ex. P.W.10/B was accordingly recorded which was signed by him and attested by the Panch witnesses. Except for the discovery of the dead body of Varun Kumar on the basis of the disclosure statement of Sukhvinder Singh, Ex. P.W. l0/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 where the dead body of Varun had been concealed and from where it could be recovered, the recording of the disclosure statements of Sukhdev Pal and Puran Chand Ex. P.W. 10/C and Ex. P.W. 10/D was a wholly impermissible exercise and an obvious attempt to rope in Sukhdev Pal and Puran Chand with the aid of Section 27 of the Evidence Act. Since, the information had already been given by Sukhdev Singh, appellant in his disclosure statement Ex. P.W. 10/B, the two subsequent statements Ex. P.W. 10/C and Ex. P.W. 10/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 P.W. 14 that the disclosure statement, Ex. P.W. 10/B, made by Sukhvinder Singh was the first in point 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 the disclosure statement Ex. P.W. 10/B, rather than wait and record two more disclosure statements, as if the authenticity of recovery of dead body could be achieved by the mere number of disclosure statements leading to the discovery of one and the same fact. In the face of the Admission of P.W. 14 as noticed above, it is obvious that the so-called disclosure statements of Sukhdev Pal and Puran Chand Ex. P.W. 10/C and Ex. P.W. 10/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 Ex. P.W. 10/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. P.W. 10/D, the conclusion is inescapable that the prosecution has not been able to establish the case against Puran Chand beyond a reasonable doubt and, 1here is no circumstance which can connect him with the alleged crime. (Para 15)

       (iv) Evidence Act, 1872 - Section 73 Comparison of Signature, writing or seal with others admitted or proved. Method of proving the handwriting of a person - It is the Court which has to make the comparison Court can direct any person present to give his specimen writing - Court which can issue much a direction can either be the court holding the enquiry or the Court trying the accused When enquiry and trial were pen ding before Designated Court only - Direction given by Tehsildar Executive Magistrate was unwarranted.

       Held: The language of Section 73 does not permit any Court give a direction to an accused to give his specimen writing for comparison in a proceeding which may subsequently be instituted in some other Competent Court. Section 73 of the Evidence Act in our opinion cannot be made use of for collecting specimen writings during the investigation and recourse to it can be had only when the 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 Procedure 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 Court holding the enquiry 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 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. (Para 18)

       Further held: The specimen writings in the instant case of appellant Sukhdev Paul were taken under the directions of Sh. S.P. Garg, Tehsildar Executive Magistrate, P.W. 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 direction given by the Tehsildar Executive Magistrate Sh. S.P. Garg to the appellant Sukhdev Paul to give his specimen writing was clearly unwarranted and not contemplated or envisaged by Section 73 of the Evidence Act. The prosecution has not disclosed as to at what stage of investigation or enquiry or trial was Sukdev Paul appellant produced before the Executive Magistrate P.W. 13 to take the specimen writing of the appellant and why the specimen writings were obtained under directions of P.W. 13 and not of the Designated Court. It is a mystery as to how the specimen writings required to be used at the trial against the appellant were directed to be taken by P.W. 13, who was to enquiring or trying the case. To a specific question during his cross-examination, P.W. 13 admitted at the trial, that when he had issued the direction to the appellant there was no document on his file which could go to show as to under whose orders the appellant had been sent to him for taking his specimen handwriting. The manner in which the specimen writing of Sukhdev Paul was taken is totally objectionable and against the provisions of Section 73 of the Evidence Act. The Executive Magistrate P.W. 13 appears to have been too obliging and did not even care to examine the provisions of law before issuing the direction to the appellant. (Para 18)

       (v) Indian Penal Code, 1860 - Sections 302 and 120B - Conviction under - Appeal- No eye - witness - Making of disclosure statement Recovery of dead body of the deceased from his house on the pointing out of appellant - Conviction u/s. 302 is legally sustainable.

       Held: Each one of these circumstances which has been established by the prosecution against Sukhvinder Singh has been successfully proved. The chain of circumstances against Sukhvinder Singh is so complete that it excludes the possibility of any hypothesis other than the one which is consistent only with the guilt of Sukvinder 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 remained unchallenged in the cross-examination of the prosecution witness. All the circumstances relied upon by the prosecution against Sukhvinder Singh definitely and unerringly point towards the guilt of Sukhvinder Singh appellant and taken cumulatively form a chain so complete that there is no escape from the conclusion that the crime was committed by Sukhvinder Singh appellant and none else. The medical evidence also lends credence to the prosecution case against Sukhvinder Singh. May be, he also had some accomplices but since the prosecution 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 accordingly convict him for an offence under Section 302, I.P.C. (Para 23)