Holding

The appellant is entitled to the benefit of doubt and must be acquitted as the sole child witness testimony is unreliable and no charge or evidence supports a rape conviction.

Summary

Jagjit Singh (Jagga) was convicted of murder of three persons and alleged rape based primarily on the testimony of a seven‑year‑old child witness, Billo (PW‑6). The child’s statements were recorded three and six days after the incident, after being allegedly prompted by her father, and she never identified the appellant in her earlier statements. The co‑accused Raju Bhaiya was absconding, and no forensic link tied the appellant to the seized motorcycle and watch. No charge was framed under Section 376 IPC and there was no evidence of rape. The Supreme Court found the child’s testimony unreliable, noted the lack of motive, identification, and forensic connection, and held that the appellant was entitled to the benefit of doubt, acquitting him of all charges.

Issues considered

The conviction under Sections 302, 460 and 458 read with Section 34 IPC can be sustained on the sole testimony of a child witness who was allegedly led by her father and whose statement was recorded after a delay.
Whether a conviction for rape under Section 376 IPC can be upheld when no charge was framed and no evidence of rape exists.
Whether the prosecution established a motive, identification, or forensic link between the appellant and the crime.
The reliability of the other witnesses (PW‑4, PW‑5) and the effect of their testimony on the conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 313
Indian Penal Code, 1860s. 302, s. 34, s. 376, s. 458, s. 460

Subjects

murderhomicidechild witnessidentificationbenefit of doubtrapeSection 376 IPCSection 302 IPCevidence reliabilityleading questionsdelay in recording statementsacquittal

Judgment

JAGJ!T SINGH @ JAGGA A
V.

STATE OF PUNJAB

JANUARY 18, 2005

[P. VENKATARAMA REDD! AND B.P. SINGH, JJ.] B

Penal Code, 1860-Sections 302, 460 and 458 rlw 34-Murder of three
persons-Out of the two accused, one absconded-Conviction of the other
. accused i.e. appellant on the basis of testimony of child witness-On facts, C
held, th'3 child witness implicated appellant at the prompting of her father-
Delay in recording of evidence of the child witness, not explained-No motive
for appellant to kill his own uncle-It is possible that the offence was committed
by the other accused-Also there was nothing to connect appellant with the
recfJvery made from the place of occurrence-Hence, appellant entitled to
benefit of doubt. D
Penal Code, 1860-Section 376-Rape-Chargefor, not.framed-Also
no evidence suggesting commission of the offence-Conviction set aside.

PW5-the father of appellant and his brothers had installed a tube-
well on their agricultural lands. For cultivation of the lands, they had E
engaged 'S' who alongwith his wife, daughter 'J' and servant 'RB' resided
at the tube-well itself.

According to prosecution, on the fateful night, appellant along with
'RB' assaulted PW6, apart from 'S'and 'J' both of whom lost their lives.
'R', an uncle of appellant who used to reside at the tube well was also p
fatally assaulted. PW6, the sole eye witness aged about 7 years at the time
of occurrence was injured in the incident.

Appellant alone was put up for trial since co-accused 'RB' was
absconding. The Sessions Judge found appellant guilty under Sections 302,
460 and 458 r/w Section 34 IPC and on coming to the conclusion that he
had also raped 'J' before she was done to death, imposed death sentence
upon him. High Court confirmed the conviction and affirmed the sentence
of death. Hence the appeal.

Allowing the appeal, the Court
559
560 SUPREME COURT REPORTS [2005] I S.C.R.

A HELD: I. No charge was framed against the appellant under Section
376 IPC. Nor is there any evidence suggesting that the appellant had
committed the offence of rape. Even if the evidence of PW-6 is accepted
in its entirety, there is not a word in her evidence to suggest the commission
of rape on 'J' either by the appellant or by anyone else. In these
B circumstances, it is not possible to sustain the finding of the Trial Court
that the appellant was also guilty of having committed the offence of rape.
[569-E)

2.1. The evidence of PW-4 does not bear a close scrutiny. Apart from
the fact that most of the statements made by him in examination-in-chief
C were not stated when he was examined under Section 161 Cr. P.C., the
assertions made by him in the course of his deposition are clearly false.
He has denied the fact that he put questions to PW-6 when she was
examined in the presence of the doctor PW-7, but there is the evidence of
PW7 as well as that of PW-6 herself that the questions were put to PW6
by him and the answers given by her were recorded by the doctor, PW-7.
]) [571-D-E]

2.2. The statement of PW-4 that when he reached the place of
occurrence he found that the dead body of'J' was lying naked, is also false.
No other witness has said so. In fact, the lady doctor who performed the
post mortem examination stated that when the body of the deceased was
E brought to her, the deceased was wearing green and orange printed salwar
kameej, brassier of pink colour, silver colour neck chain, pink and red
and green bangles on the right arm, golden coloured nose pin, long scalp
hairs tied in a plait with balck parandi. This itself suggests that either this
witness had not seen the dead body of 'J' at the time he claims to have
p seen the dead body, or he is deliberately telling a lie to create a suspicion
that 'J' had been subjected to rape before she was killed. [571-F-H[

3. So far as PW-5 is concerned, this witness was declared hostile. No
doubt, this witness had lodged the FIR, but nothing much turns on his
evidence as he was not an eye witness. [572-B-C]
G
4.1. The statement of PW6 was recorded by the Investigating Officer
for the first time three days after the occurrence, and her statement was
recorded by the J:.idicial Magistrate six days after the occurrence. No
explanation is forthcoming as to why she was not examined for three days
when the Investigating Officer knew that her statement had been recorded
H by the doctor on 30th August, 1996. The Trial Court took the view that
JAGJIT SlNGH@.IAGGA v. STATE 561

since she was under a shock she was not in a position to make a statement A
and, therefore, her statement was recorded later. This is clearly erroneous
because the case of the prosecution is that she regained consciousness on
30thAugust, 1996 and, thereafter, she was fully conscious. The evidence
of PW-7 who gave a certificate of her fitness to make a statement is also
to the same effect. [574-G-H; 575-A-BI
B
4.2. The explanation furnished by PW-6 five years after the
occurrence, that she knew the appellant because he happened to be the
son of PW5 at whose tube well her grandparents resided, is unacceptable
particularly, in view of the fact that there is no evidence to establish that
she had ever earlier seen the appellant and in none of the three statements C
made by her earlier the name of PW5 is mentioned. The delay in
examining her in the course of investigation also creates a serious doubt
in the absence of any explanation for her late examination after three days,
when admittedly she was the sole eye witness who was also injured in the
course of the occurrence. Though she may have witnessed the occurrence,
she did not know the appellant by name as she had no opportunity of D
knowing or seeing him earlier, and that she has involved the appellant at
the instance of her father, who was the person who suggested the
involvement of the appellant when her statement Ex. PW-6/A was being
recorded. [575-C-EJ
E
5.1. Apart from the fact that there is not an iota of evidence as to
who assaulted 'R', there appears to be no reason why the appellant should
commit the murder of his own uncle with whom his family was on cordial
terms. In fact his father, PW-5, had come in the morning to give tea to
his brother 'R'. There is nothing on record to suggest that the appellant
had any animus against his own uncle. Nor is there any evidence on record F
to suggest any possible motive for the appellant to commit such a heinous
crime. [575-F-GI

5.2. Since the truthfulness of PW-6 so far as the involvement of the
appellant is concerned, is doubtful, but there is evidence to support the G
involvement of another person namely, 'RB', who has absconded, the
absence of motive acquires significance because it is possible that the
offence may have been committed by 'RB' along with some other person
or persons. 1576-AI

6. Though a motor cycle and a wrist watch were seized from the place H
562 SUPREME COURT REPORTS (2005] I S.C.R.

A of occurrence, no evidence has been produced by the prosecution to
connect the appellant with the recovery of these two items. [576-BJ

7. The conviction of the appellant, therefore, depends solely upon
the testimony of PW-6. There is a serious doubt as to whether she knew
the appellant at all when the occurrence took place. There is no evidence
B to prove that she was known to the appellant. The name of the appellant
appears to have been introduced by her father, PW-4, who is not an eye
witness. Therefore, it is not safe to sustain the conviction of the appellant
ori the sole testimony of the child witness PW-6. The appellant is entitled
to benefit of doubt. [576-C-Dj
c CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
226 of 2004.

From the Judgment and Order dated 14.11.2003 of the Punjab and
Haryana High Court in M.R. No. 2 of2003 and Cr!. A. No. 369-DB of2003.
D
K.B. Sinha, Mrs. Kawaljit Kochar, Ashok Kumar Sharma, D. Jha and
Ms. Kusum Chaudhury for the Appellant.

P.N. Misra, Bimal Roy Jad and Ms. Sunita Pandit for the Respondent.

E The Judgment of the Court was delivered by

B.P. SINGH, J. This appeal by special leave has been preferred by
Jagjit Singh @ Jagga who was tried by the Sessions Judge, Fatehgarh Sahib
charged of the offences under Sections 302, 460 and 458 read with Section
34 !PC. The learned Sessions Judge by his judgment and order dated
F 31.03.2003 found him guilty of all the three charges and sentenced him to
death under Section 302/34 !PC, while imposing the sentence of I 0 years
rigorous imprisonment and a fine of Rs. 5,000 in default to undergo two
years rigorous imprisonment under both Sections 458 and 460 !PC. The
appellant herein preferred Criminal Appeal No. 369 DB/2003 before the
G High Court of Punjab and Haryana which was heard along with Murder
Reference 2 of 2003 for confirmation of the death sentence. The High Court
dismissed the Criminal Appeal preferred by the appellant, and accepting the
murder reference, affirmed the sentence of death.

The prosecution had alleged the commission of the aforesaid offences
H by the appellant Jagjit Singh @ Jagga as well as by his companion Raju
JAGJIT SINGH @JAGGA v. STATE [B.P. SINGH, J.] 563

Bhaiya @ Gobind Sharma who absconded and was ultimately declared a A
proclaimed offender. The occurrence giving rise to the instant appeal is said
to have occurred on the night intervening the 29th and 30th August, 1996 in
which three persons were killed and the sole eye witness Billo, PW-6 a child
aged about seven years was injured. The persons who were alleged to have
been killed by the appellant and his companion were Sahu and his daughter B
Jamila @ Guddo, apart from Rabi Singh, an uncle of the appellant and
brother of the first informant Amar Singh, PW-5, who is the father of the
appellant.

The case of the prosecution is that Amar Singh, PW-5 and his brothers
Labh Singh and Rabi Singh (deceased) jointly cultivated lands belonging to C
them in village Khamanon Kamli. For that purpose they had installed a tube
well on their land which had a room where the motor was installed and just
outside that room was a 'Chhan' (a thatched verandah). Sahu (deceased)
along with his wife and daughter Jamila@ Guddo (deceased) resided at the
tube well. He was engaged for cultivation of the lands belonging to Amar
Singh and his brothers. Rabi Singh (deceased), used to reside at the tube well D
along with Sahu and his family members aforesaid. Sahu had kept his cattle
at the tube well and for that purpose he had employed Raju Bhaiya@ Gobind
Sharma (since absconding) who used to graze the cattle and look after them.
He had been in their employment for about 6 to 7 months before the occurrence
and also resided with them at the tube well. Only 5 or 6 days before the E
occurrence Raju Bhaiya had taken leave to go to Ludhiana on the pretext that
he had to collect money from someone. A couple of days before the incident
the wife of Sahu (deceased) namely, Jeewani had gone to see her daughter
Hazaran at Jalandhar. While going to Jalandhar she had requested her son-
in-law Bashir PW-4 a resident of Village Madera to take care of her daughter
Jamila @ Guddo in her absence. According to prosecution on the evening of F
29.08.1996 Bashir PW-4 along with his wife and children visited the tube
well where Sahu resided in village Khamanon Kamli. They were together for
sometime and thereafter he and his family members returned to their village
leaving behind Billo, who was only 7 years old, to give company to Guddo.
That is how Billo PW-6 was at the tube well along with Sahu and Jamila @ G
Guddo (deceased) on the night of occurrence.

The case of the prosecution is that late in the night the appellant came
to the tube well on a motor-cycle and Raju Bahiya also joined him armed
with a hammer. The appellant caught hold of Sahu who was sleeping on a
cot and threw him on the ground. Raju assaulted him on his chest with the H
564 SUPREME COURT REPORTS [2005] I S.C.R.

A hammer. Seeing the occurrence Jamila@ Guddo (deceased) caught hold of
Billo, PW-6 and took her towards the cattle shed. However, the appellants
caught hold of Jamila @ Guddo. Raju attacked her with his hammer from
behind on her shoulder, as a result of which she fell down. Billo, PW-6
started weeping, but Raju put a hand on her mouth and hit her on her head
with the wooden peg. The accused tied the 'Chunni' of Jamila @ Guddo
B round the neck of Billo and tried to strangulate her. Thereafter they threw her
under a dek tree. By that time Billo had become unconscious.

In the morning, Amar Singh, PW-5 father of the appellant came to the
tube well with tea for his brother Rabi Singh, who used to reside at the tube
C well. He found the dead body of Rabi Singh smeared with blood in the motor
room. He also found Sahu lying dead on a cot outside the 'Kotha' while
Jamila @ Guddo was lying dead in the 'Chhan'. They found Billo, PW-6
lying injured under a Eucalyptus tree near the tube well. Amar Singh, PW-
5, called a worker fro.n the nearby factory and with his assistance shifted
Billo to the local hospital for medical aid on a scooter. According to Amar
D Singh, PW-5 on the way Billo (PW-6) told him that Raju Bhaiya and a
motor-cyclist had killed her 'Nana' and 'Masi' with hammer. She uttered the
same words when she was taken to Dr. Sharma, the local doctor, who advised
them to take the injured girl to the Civil Hospital. Accordingly injured Billo,
PW-6 was taken to the Civil Hospital at Khamanon Kamli. Later she was
E shifted to the Mohandevi Oswal Hospital at Ludhiana for better treatment.

In the meantime, at about 7.00 a.m. Amar Singh, PW-5 went to the
police station Khamaiion~amli and lodged a report. In that report he stated
about his brother as well as Sahu and members of his family residing at his
tube well where they had kept their cattle which were looked after by Raju.
p He stated that at 6.00 a.m. when he went to the tube well for serving tea to
his brother Rabi Singh (deceased) he found his dead body lying in the motor
room with his face downward. He also saw the dead bodies of Jamila @
Guddo and Sahu. He found Billo, PW-6, lying injured under a Eucalyptus
tree. He immediately called for help from the nearby factory and when a
scooterist came he took her to the hospital on the scooter. On the way Billo
G had told that Raju Bhaiya and a motor cyclist had killed her 'Nana' and
'Masi' by inflicting injuries with a hammer. They first went to the clinic of
Dr. Shanna who asked him to take her to the civil hospital. Thereafter she
was taken to the civil hospital. At the hospital also in the presence of the
doctor she stated that she had been strangulated with 'Chunni' and had also
H been assaulted on her head. He further stated that he had found things lying
JAGJIT SINGH @JAGGA v. STATE [B.P. SINGH. J.] 565
scattered in the room and therefore he got the impression that the occurrence A
had taken place when the assailants had come to commit theft. One blood
stained hammer was lying outside the motor room.

On the basis of the report made by Amar Singh, PW-5, a formal FIR
was registered whereafter Sub-Inspector Manjit Singh, PW-13 the Investigating
Officer, commenced investigation and went to the place of occurrence. He B
prepared the inquest reports in respect of Rabi Singh, Sahu and Jamila as P-
8, P-13 and P-18 respectively. He also prepared a rough site plan of the place
of occurrence which is Ex.PW-13/A. He recovered blood stained earth from
-..; the place of occurrence and the recovery memos are Exbs.P-9A and B. The
hammer recovered from the place of occurrence is Exb.PM/I and the memo C
prepared in connection with such recovery is P-9/C. The dead bodies were
then sent to Civil Hospital, Bassi Pathanan and the post mortem reports are
Exbts. P-3, P-9 and P-14.

At t!iis stage, we may notice that the dead body of Rabi Singh was
found inside the motor room while the dead body of Jamila was found in the D
'Chhan' just outside the motor room. The dead body of Sahu was found just
outside the 'Chhan'. Billo, PW-6 has stated about the assault on Sahu and
Jamila but has said nothing about the assault on Rabi Singh. In fact, there is
no evidence on record to prove the manner of assault on Rabi Singh.

Dr. Amarjit Singh, PW-2 who conducted the post mortem examination E
on the dead body of Rabi Singh at 2.45 p.m. on 30th August, 1996 found as
many as four incised wounds and one contusion and abrasion on his body.
On dissection, he found the sternum and ribs 3 to 8 on the right side fractured.
Clotted blood was present in the thorasic cavity.

The same Dr. Amarjit Singh conducted the post mortem examination F
on the body of Sahu (deceased). In his case he found four bruises on his
chest. He found rib nos. 2 -6 fractured on the right side and nos. 3 to 7
fractured on the left side. The lungs were severely lacerated.

PW-3, Dr. Parampreet Kaur Ghuman conducted the post mortem G
examination on the dead body of Jamila @ Guddo on the same day at 4.00
p.m. She found 5 bruises on her and also found that ribs no.2, 3, 4 and 5 on
' • the left side were fractured as also the sternum.

The medical evidence on record proves beyond doubt that the three
deceased died homicidal deaths. The medical evidence is indicative of the H
566 SUPREME COURT REPORTS [2005] I S.C.R.

A fact that while Rabi Singh was attacked by his assailants with sharp cutting
weapons, the injuries suffered by the other two deceased may have been
caused by a hard and blunt object such as a hammer as suggested by the
prosecution.

According to the prosecution, Billo who had been removed to Mohandevi
B Oswal Hospital, Lundhiana was admitted in the ICU of the Hospital. She is
said to have made a siatement in the Hospital which was recorded by Dr.
Bhupinder Singh, PW-7. A query was made by ASI Rajinder Kumar as to
whether the patient Billo, PW-6 was fit to make a statement. He gave his
opinion that she was fit to make a statement. He, thereafter, recorded the
C statement of Billo in question-answer form in the presence of Dr. Darshan
Singh, AS! Rajinder Kumar and Bashir Ali, PW-4, father of Billo. That
statement has been marked as Ex. PW 6/A which is as follows:-

"Girl's father Who has beaten you, Billo?
Child Billo Raju Bhaiya hit my
D Maternal aunt (Masi) Guddo,
my Maternal Grandfather
and myself.
Girl's father Did Jagga accompany him?
Billo Nodded 'Yes' later on she
E named Jagga.
Girl's father Was Shera, Kala also with him?
Billo Negative reply meaning 'No'."
Three days later, on 3.9.1996, the Investigating Officer recorded the
statement of Billo PW-6 under Section 161 Cr. P.C. Ext. DA/I which is as
F follows:-

"Stated that on that night Jagga came to the motor on a Motorcycle.
I was sleeping on the bed with my Maternal Ant (Masi) Guddo and
Raju Bhaiya and Jagga threw down my Maternal Grandfather from
the cot. Jagga caught hold of the legs of my Maternal Grandfather
G and Raju hit him with hammer. My Maternal Aunt caught me by the
hand and ran towards the buffaloes. Jagga caught hold of my Maternal
Aunt from the back. Raju had a hammer in his hand. My Maternal
Aunt and myself started crying loudly. Jagga took the hammer from
Raju and hit my Maternal Aunt on the shoulder. Raju Bhaiya took a
.. '

log of wood and with one hand throttled my mouth and hit the wooden
H
~-
'

.IAGJIT SINGH @JAGGA v. STATE [B.P. SINGH, .1.) 567

leg on my head. He took the chunni of my Maternal Aunt and tied A
it round my neck and threw me near the Dek and after that l do not
know anything."

Yet three days later another statement of Billo was recorded on 6.9.1996
(Ext. PW6/B) by a Judicial Magistrate, the relevant part whereof is as follows:-
B
"Stated that my name is Billo. During the last about 5-7 days, there
has been no quarrel in our house. I do not know the date today as I
am small, Two days before, I was at my Maternal Aunt's house, at
that time there were 3 boys, my mother and my father in the house
of my maternal aunt. My mother and father came for tea to my
maternal aunt's house. They left after meeting. On that day, I stayed C
back with my maternal aunt when I was with my maternal aunt, I
slept with her. The names of the boys who had come were Sanju
Guizar and the third was Mamsar. All the three persons came at
night. They did not do anything. When I was asleep Jagga came
alone on a Motorcycle. Bhaiya was a servant there itself of my maternal D
aunt. Bhaiya's name was Raju. Then Bhaiya hit my maternal aunt on
the shoulder with a hammer. Bhaiya hit with the hammer and gave
it to Jagga. Then Bhaiya caught me. Then Jagga told Bhaiya to catch
hold of me. Then he started beating my mother's father. Then Jagga
hit my maternal grandfather with the hammer. Bhaiya was catching
hold of me. I started shouting for my father. Then Bhaiya scratched E
my face, the marks of which are still existing on my fact. I had seen
Jagga before who used to come to the motor everyday. Raju Bhaiya
was a servant of my maternal aunt who used to graze buffaloes tor
my maternal aunt. The hammer was in our house".

In this statement Billo stated that she knew Jagga from before because he F
used to come to the motor (tube well) everyday.

After investigation charge sheet was submitted against the appellant
who alone was put up for trial since co-accused Raju Bhaiya was absconding.
Apart from the medical evidence on record and the evidence of the G
Investigating Officer, the important witnesses examined by the prosecution
are; Bashir PW-4, father of Billo, Amar Singh PW-5, father of the appellant
f 1 and Billo PW-6, the sole injured eye witness who was aged about 7 years at
the time of occurrence. When examined under section 313 Cr.P.C. the appellant
completely denied his involvement and stated that he had been falsely
implicated with a view to extract money from him and his father. H
568 SUPREME COURT REPORTS (2005] I S.C.R.

A The Trial Court on an appreciation of the evidence on record came to
the conclusion that all the three deceased had met homicidal deaths. It was
submitted before the Trial Court that in the first statement made by Billo, the
name of the appellant was suggested to her by her father PW-4 who had put
a leading question suggesting the involvement of the appellant to which she
B nodded in the affirmative. That statement could not be relied upon. Thereafter
her statement was recorded by the police three days later on the 3rd September,
1996 by the Investigating Officer. No explanation was offered by the
prosecution as to why her statement was not recorded earlier. Thereafter, her
statement was recorded by a Magistrate on 6th September, 1996, six days
after the occurrence. The case of the defence was that this time was utilized
C to tutor the child witness so as to implicate the appellant. The case of the
defence is that the appellant was unknown to the witness PW-6, Billo, who
was a child about 7 years old. She was not a resident of village Khamanon
Kamli where the deceased resided, but was the resident of a different village
namely, Madera and there was nothing on record to suggest that the appellant
has ever visited village Madera where the witness resided or that PW-6 had
D ever come to village Khamanon earlier. No test. identification parade was
held. It was also submitted that PW-4 was a wholly unreliable witness and
his evidence was worthless.

The learned Sessions Judge came to the conclusion that PW-6 Billo
E was a reliable witness and though a child witness she could be relied upon
as she impressed the Court as a truthful eye witness. The Trial Court noticed
the fact that PW-6 was examined as a witness almost 5 years after the
occurrence and during this period she was residing with her parents. She
knew Jagga the appellant since he used to come to the tube well and there
was sufficient opportunity for her to identify the appellant. The medical
F evidence supported her version, and the fact that she was herself an injured
witness added credibility. The first statement recorded by PW-7, Dr. Bhupinder
Singh was relied upon by the Trial Court on a finding that she was fully
conscious as per the certificate of fitness given by the doctor. The fact that
she named the appellant in response to a leading question put to her by her
G father was no ground to discard her statement. It further held that no prejudice
was caused to the accused, even though there was delay in recording the
~tatement of PW-6 by the Magistrate. The learned Sessions Judge found that
since the victim was under a great shock, she was not in a position to make
a statement earlier. He further observed that mere omissions and improvements
made by her in her statements before the Magistrate or the doctor was no
H ground to doubt her credibility. As regards the appellant being known to the
JAG.llT SINGH@JAGGA v. STATE [B.P. SINGH, J.) 569

> aforesaid witness the Trial Court was content with observing that since he A
used to come to the tube well, she had known him from before. Further it
held that on the day of occurrence there was sufficient opportunity for PW-
6 to identify the appellant. He, therefore, found her evidence acceptable.
Considering the evidence of PW·4 the Court found that though there were
some improvements appearing in his testimony, those improvements did not
,,. go to the root of the case and that his evidence corroborated the testimony B
of Billo PW-6.

It may be noticed at this stage that from the evidence of Dr. Parampreet
Kaur Ghuman, PW-3, it appears she had taken a vaginal swab of deceased
Jamila and the same was sent for chemical examination. The report disclosed
presence of semen and, therefore, she opined that the possibility of rape
c
could not be ruled out. Only on the basis of this solitary statement in the
evidence of PW-3 the Trial Court jumped to the conclusion that the appellant
had committed a very ghastly crime and had committed rape of Jamila before
her death. This was a circumstance which the Trial Court took into account
while imposing the death sentence. D
~ We may observe that no charge was framed against the appellant under
Section 376 !PC. Nor is there any evidence suggesting that the appellant had
committed the offence of rape. Even ifthe evidence of Billo PW-6 is accepted
in its entirety, there is not a word in her evidence to suggest the commission
of rape on Jamila either by the appellant or by anyone else. In these E
circumstances, it is not possible to sustain the finding of the Trial Court that
the appellant was also guilty of having committed the offence of rape.

Before the High Court as well similar submissions were advanced and
for similar reasons the High Court dismissed the appeal and affirmed the
F
sentence of death. The observations in the judgment of the High Court also
suggest that the High Court concurred with the view of the Trial Court with
regard to the commission of offence of rape by the appellant. As we have
observed earlier this finding cannot be sustained at all in the absence of any
charge being framed under Section 376 !PC and in the absence of any evidence
whatsoever to support this allegation. G

'.
We have examined the evidence of the witnesses in great detail and
subjected their testimony to critical scrutiny in view of the fact that the
appellant is charged of a ghastly offence and has been sentenced to death.

PW-4, Bashir stated that in the year 1996, he was residing at Khamanon H
570 SUPREME COURT REPORTS (2005] I S.C.R.

A Kamli village. He also claimed to know Raju Bhaiya who had stayed with
him for about 4 months before joining his father-in-law at the tube well 0f
Amar Singh, PW-5. He further stated that Jamila@ Guddo used to accompany
Raju Bhaiya when he took the cattle for grazing. On 28.8.1996 his mother-
in-law went to Jalandhar to see her daughter and she requested him to take
B care of her daughter Guddo@ Jamila (deceased) since she was alone in the
house. On the same evening, he along with his wife and children had gone
\
to the tube well of Amar Singh to meet Guddo @Jamila (deceased). After
spending wmetime with her they came back leaving behind Billo, PW-6 to
give company to Jamila. On 29.8.1996 at about 6.00 a.m. he was informed
by someone that everyone living in the Dera at the tube well of the accused
C had been massacred. He, therefore, went to the tube well and found his
father-in-law lying dead. His sister-in-law Jamila was lying naked in the
room on an empty gunny bag and from her condition she appeared to have
been raped. Rabi Singh uncle of the appellant was lying dead and his left
thumb was smeared with ink. (The witness appears to have made a mistake
about the dates). Billo had been admitted in the hospital in an injured condition
D and he, therefore, went to Khamanon Kam Ii hospital where Billo was admitted.
From the hospital, he went to Jalandhar to inform his mother-in-law while his
wife took care of Billo, PW-6 who was removed to the Mohandevi Oswal
Hospital, Ludhiana in his absence. He came to that hospital alongwith his
mother-in-law. In his presence, the doctor talked to Billo, PW-6 but she did
E not respond in the first instance. Doctor again talked to Billo and she responded
to the question put by the doctor. The doctor recorded the statement of Billo,
PW-6 in his presence and in the presence of two police officials. Billo had
named the appellant and Raju Bhaiya as the assailants.

From his cross-examination it appears that it was not stated by him, in
F the course of investigation, that his mother-in-law had requested him to take
care of Jamila (deceased) while leaving for Jalandhar. He had also not stated
that he along with his wife and Billo had gone to the house of his mother-
in-law to see Jamila and after staying for sometime came back leaving Billo
there at the tube well of the appellant. He had also not stated in the course
G of investigation that when he had reached the spot he found his father-in-law
lying dead on the cot and Jamila (deceased) lying on an empty gunny back
in a naked condition having been raped. Similarly, many other statements
made by this witness in the course of examination-in-chief were not stated by
him in the course of the investigation. The credibility of this witness stands
sufficiently impeached. What however is of significance is his assertion that
H Billo, PW-6 responded on repeated calls of the doctor whereafter the doctor
JAGJIT SINGH @JAGGA v. STATE [B.P. SINGH, J.] 571

> put questions to her and she answered them. He claimed to have stated in his A
statement recorded under Section 161 Cr. P.C. that Billo, PW-6 had answered
the questions of the doctor. He had also told the police that the doctor had
recorded the statement of Billo. He denied the suggestion that he had put
questions to Billo and not the doctor. He was categorical in asserting that
while the statement was being recorded by the doctor, he did not put any
question to Billo suggesting that Jagga was also present with Raju Bhaiya. It B
was in response to the question put by the doctor that Billo answered stating
that Raju Bhaiya and Jagga were there. He admitted that the police recorded
his statement in the hospital and his statement was ·recorded for the first time
on 3.9.i996. He further stated that he reached at 8-9 p.m. on 29.8.1996 and
the statement Ex.6/A was recorded on the next day after 12 noon. He denied c
the suggestion that the appellant had been involved with a view to extracting
money from him and his father.

The evidence of PW-4 does not bear a close scrutiny. Apart from the
fact that most of the statements made by him in examination-in-chief were
not stated when he was examined under Section 161 Cr. P.C., the assertions D
made by him in the course of his deposition are clearly false. He has denied
the fact that he put questions to Billo, PW-6 when she was examined in the
presence of the doctor PW-7. On the other hand, there is the evidence of Dr.
Bhupinder Singh as well as that of Billo PW-6 herself that the questions were
put to Billo by him and the answers given by her were recorded by the
E
doctor, PW-7. In fact a mere perusal of the statement itself discloses that he
had put all the questions to which Billo gave her answers. However, the
questions and answers were recorded by the doctor, PW-7. It is also clear
from the aforesaid statement that PW-4 Bashir, father of Billo, PW-6 suggested
the involvement of the appellant along with Raju Bhaiya and in answer to
that question Billo nodded and answered in the affirmative. His statement F
that when he reached the place of occurrence he found that the dead body of
Jamila was lying there and she was naked, is also false. No other witness has
said so. In fact, PW-3, the lady doctor who performed the post mortem
examination on the dead body of the deceased Jamila stated that when the
body of the deceased was brought to her she was wearing green and orange
printed salwar kameej, brassier of pink colour, silver colour neck chain, pink
G
and red and green bangles on the right arm, golden coloured nose pin, long
' .. scalp hairs tied in a plait with black parandi. This itself suggests that either
this witness had not seen the dead body of Jamila at the time he claims to
have seen the dead body, or he is deliberately telling a lie to create a suspicion
that Jamila had been subjected to rape before she was killed. Having considered H
572 SUPREME COURT REPORTS (2005] I S.C.R.

A his evidence, we are convinced that this witness is not worthy of belief and
stands thoroughly discredited in his cross examination. His assertions further
demonstrate that he has no regard for truth. He went to the extent of claiming
that he was a resident of village Khamanon Kamli whereas the case of the
prosecution is that he is a resident of village Madera and the evidence of
B Billo PW-6 on this aspect is very categorical. We must, therefore, d'iscard the
evidence of Bashir, PW-4.

So far as Amar Singh, PW-5 is concerned, this witness was declared
hostile. No doubt, this witness had lodged the FIR, but nothing much turns
on his evidence as he was not an eye witness.
c The evidence of Billo, PW-6 is of considerable significance, it being
the testimony of an eye witness who was also injured in the incident. Her first
statement was recorded by the doctor, PW-7 on 30th August, I 996. In our
opinion, that statement has to be discarded because it was at the prompting
of her father that she implicated the appellant, otherwise, she had only
D implicated Raju Bhaiya. Her second statement was recorded by the
Investigating Officer on September 3, 1996 and her third statement was
y
recorded by the Judicial Magistrate on September 6, 1996. She was deposing
before the court 5 years after the occurrence. In this background we may
examine her evidence in detail.

E In her deposition, PW -6 claimed that she was residing with her parents
at village Madera while her maternal grand father and grandmother and aunt
resided at Khamanon Kamli at the tube well of Amar Singh, PW-5. Raju
Bhaiya (since absconding) was the servant of her grandfather namely, Sahu.
Amar Singh, at whose tube well her maternal grandparents were residing, is
F the father of the appellant and, therefore, she knew the appellant as well. She
has narrated the manner in which on the fateful night the appellant came
along with Raju Bhaiya and assaulted her, apart from her maternal grandfather
and aunt Jamila, both of whom lqst their lives. She claimed that after the
incident she had become unconscious and only on the next day she regained
consciousness while in the hospital at Ludhiana. In the course of her cross-
G examination, she was confronted with her earlier statement and though she

.
claimed to have stated many facts, those facts were not found in her earlier
statement Ex.PW-6/A . Similar is the position with regard to her statement
'
Ex.PW-6/B recorded by the Judicial Magistrate and Ex.DA recorded by the
Investigating Officer. It is not necessary to refer to all the questions put to
H her in her cross-examination and her being confronted with her earlier
.IAG.IIT SINGH @JAGGA v. STATE [B.P. SINGH. J.] 573

statements where those statements were not found. She claimed to have stated A
in her statement Ex.PW-6/A that the appellant was the son of Amar Singh at
whose tube well her grandparents were residing and therefore she knew him.
This fact was not recorded in Ex.PW-6/A. Even in her statement made before
the Judicial Magistrate she claimed to have stated that her aunt, her grand
father and one Rabi Singh were killed at the tube well of Amar Singh and B
they were residing at that tube well. When confronted with that statement, it
was found that she had not stated the fact that they were residing at the tube
well of Amar Singh. She also claims to have stated l'efore the Judicial
Magistrate that her aunt, her grand father and Rabi Singh received injuries at
the tube well of Amar Singh, but in her statement Ex. PW-6/B the name of
Amar Singh was not mentioned. She also claimed to have stated before the C
police that Amar Singh at whose tube well her grandparents· were residing is
the father of the appellant and, therefore, she knew the accused present in the
Court. However, she was confronted with her statement Ex.DA where it was
not so recorded. From these statements made by the witness, it appears that
she had earlier not mentioned the fact that the tube well where her grandparents
were residing belonged to Amar Singh, father of the appellant and, therefore, D
she knew him. In fact, in her statement made before the Judicial Magistrate
PW-6/B, this witness has stated that she had seen the appellant earlier since
he used to come to the tube well everyday. The Trial Court came to the
conclusion that the appellant was known to Billo, PW-6 because he used to
come to the motor (tube well). In the course of her deposition, PW-6 did not E
say so. On the contrary, she claimed to know the appellant because he
happened to be the son of Amar Singh at whose tube well her maternal
grandparents were residing, and this claim she made for the first time while
deposing in Court 5 years after the occurrence.

Though a submission was made before the Trial Court that the appellant F
was not known to PW-6, Billo, the Trial Court brushed aside this argument
holding that since the appellant used to come to the tube well, she had
occasion to see him and identify him. Apart from the fact, as we have pointed
out above, that in the course of her deposition, she does not say so, it is also
difficult to accept the explanation furnished by PW-6 five years after the G
occurrence, namely that since he happened to be the son of Amar Singh, who
was the owner of the tube well, where her maternal grandparents were residing
f.
she knew the appellant. One cannot lose sight of the fact that this child was
only 7 years old when the occurrence took place. She had come to the tube
well where her grandparents resided only in the evening preceding the night
of the occurrence. There was, therefore, no truth in her asse1iion made in an H
574 SUPREME COURT REPORTS [2005] I S.C.R.

A earlier statement that she knew the appellant since he used to frequently
come to the tube well. As noticed earlier, in the course of her deposition, she
does not say so. There is no evidence on record to suggest that PW-6 had
ever stayed at the tube well earlier. In the course of investigation, she had not
claimed to have known the appellant since he was the son of Amar Singh at
B whose tube well her grandparents were residing. In fact in her earlier
statements, Amar Singh's name has not been mentioned at all. We entertain
a serious doubt whether a girl 7 years old and residing in a different village
would have known to whom the tube well belonged. These facts expose a
serious lacuna in the prnsecution case because there is no evidence to establish
beyond reasonable doubt that the sole eye witness PW-6, Billo had ever an
C opportuniiy of seeing or knowing the appellant. The mere fact that he happened
to be the son of Amar Singh, who was the owner of the tube well, by itself
does not establish that the witness had ever seen the appellant before the day
of occurrence. This, coupled with the fact that in her first statement PW-6/
A recorded on 30th August, 1996, her father PW-4 by putting a leading
question to her suggesting the involvement of the appellant, got the appellant
D implicated creates a serious doubt about the truthfulness of this witness.
Thereafter she repeated the involvement of the appellant in her subsequent
two statements. If there was any evidence to prove that PW-6, Billo, who was
then aged about 7 years had ever an opportunity of seeing the appellant and
identifying him, her evidence could have been acted upon. Unfortunately,
E there is no such evidence on record. She was persuaded to name the appellant
by her father PW-4 who suggested to her the involvement of the appellant.
We, therefore, entertain serious doubt as to whether PW-6, Billo had ever
seen the appellant so as to be able to name him as one of the assailants.
Moreover, she had come to the tube well only in the evening preceding the
night of occurrence. There is no evidence to establish that the appellant had
F come to the tube well that evening.
•
This has to be viewed in the light of the fact that her statement was
recorded by the Investigating Officer for the first time three days after the
occurrence, and her statement was recorded by the Judicial Magistrate six
days after the occurrence. The courts below have taken the view that delay
G in examining her has caused no prejudice to the defence. Counsel for the
appellant, submitted that this period was utilized by the prosecution for tutoring
the witness, and therefore the delay of three days in her examination under • ,
Section 161 Cr. P.C. is significant. No explanation is forthcoming as to why
she was not examined for three days when the Investigating Office knew that
H a statement of her's had been recorded by the doctor on 30th August, 1996.
JAGJIT SINGH @JAGGA v. STATE [B.P. SINGH. J.] 575

> The Trial Court took the view that sinct she was under a shock she was not A
in a position to make a statement and, therefore, her statement was recorded
later. This is clearly erroneous because the case of the prosecution is that she
regained consciousness on 30th August, 1996 and, thereafter, she was fully
conscious. The evidence of Dr. Bhupinder Singh, PW-7 who gave a certificate
of her fitness to make a statement is also to the ·same effect. The reasoning
of the Trial Court that the victim, PW-6, was under a great shock and was B
not in a positign to make the statement, cannot be sustained. Neither the Trial
Court nor the High Court cared to closely examine the evidence on record to
find out whether there· was any evidence on record to prove that the appellant
was known to PW-6 or that PW-6 had any reason to know his name so as
to be able to identify him by name. The explanation furnished by PW-6 five c
years after the occurrence, that she knew the appellant because he happened
to be the son of Amar Singh at whose tube well her grandparents resided, is
unacceptable particularly, in view of the fact that there is no evidence to
establish that she had ever earlier seen the appellant and in none of the three
statements made by her earlier the name of Amar Singh is mentioned. The
delay in examining her in the course of investigation also creates a serious D
doubt in the absence of any explanation for her late examination after three
days, when admittedly she was the sole eye witness who was also injured in
the course of the occurrence. We are, therefore, of the view that though she
may have witnessed the occurrence, she did not know the appellant by name
as she had no opportunity of knowing or seeing him earlier, and that she has E
involved the appellant at the instance of her father, who was the person who
suggested the involvement of the appellant when her statement Ex.PW-6/A
was being recorded.

There is yet another aspect of the matter which has remained
unexplained. PW-6 has not mentioned a word as to how Rabi Singh was F
killed. Admittedly, he was sleeping in the motor room and just outside that
room PW-6 was sleeping with Jamila (deceased). Apart from the fact that
there is not an iota of evidence as to who assaulted Rabi Singh, there appears
to be no reason why the appellant should commit the murder of his own
uncle with whom his family was on cordial terms. In fact his father Amar
Singh, PW-5, had come in the morning to give tea to his brother Rabi Singh.
G
There is nothing on record to suggest that the appellant had any animus
> ,. against his own uncle. Nor is there any evidence on record to suggest any
possible motive for the a~pellant to commit such a heinous crime. We should
not be understood to say that it is necessary to prove motive for the commission
of an offence even when there is satisfactory direct evidence in proof thereof. H
576 SUPREME COURT REPORTS [2005] I S.C.R.

A In this case since we doubt the truthfulness of PW-6 so far as the involvi;,ment
of the appellant is concerned, but there is evidence to support the involvement
of another person namely, Raju l3haiya, who has absconded, the absenc:e of
motive acquires significance because it is possible that the offence may have
been committed by Raju Bhaiya along with some other person or persons.

B We also observe that though a motor cycle and a wrist watch were
seized from the place of occurrence, no evidence has been produced by the
prosecution to connect the appellant with the recovery of these two items.
The conviction of the appellant, therefore, depends solely upon the testimony
of PW-6, Billo. We entertain a serious doubt as to whether she knew the
C appellant at all when the occurrence took place. There is no evidenc:e to
prove that she was known to the.appellant. The name of the appellant appears
to have been introduced by her father, PW-4, who is not an eye witness. We,
therefore, do not consider it safe to sustain the conviction of the appellant on
the sole testimony of the child witness PW-6, Billo. The appellant is entitled
to the benefit of doubt.
D
Accordingly, this appeal is allowed and the appellant is acquittt:d of
all the charges levelled against him. He shall be released forthwith unless
required in connection with any other case.

B.B.B. Appeal allowed.