Pancho vs State Of Haryana

PANCHO ... APPELLANT

Versus

STATE OF HARYANA ... RESPONDENT

WITH

CRIMINAL APPEAL NO.1222 OF 2005

PRATHAM ... APPELLANT

Versus

STATE OF HARYANA ... RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. These two appeals, by special leave, can be disposed of

by a common judgment as they arise out of the same facts

and challenge the same judgment and order dated 3/5/2005

of the Punjab and Haryana High Court. Criminal Appeal

2

No.1050 of 2005 is filed by original accused 2 - Pancho and

Criminal Appeal No.1222 of 2005 is filed by original accused

1 - Pratham. For the sake of convenience, original accused

1 - Pratham is referred to as "A1-Pratham", original accused

2 - Pancho is referred to as "A2-Pancho" and original

accused 3 - Gajraj is referred to as "A3-Gajraj".

2. A1-Pratham, A2-Pancho and A3-Gajraj were tried by

the Additional Sessions Judge, Faridabad in Sessions Case

No.40 of 11.12.2002 / 30.11.1999 for offence punishable

under Section 396 of the Indian Penal Code (for short, "the

IPC"). According to the prosecution, two more persons

were involved in the offence in question viz. Shishu Ram @

Shishu, who expired after the charge was framed and one

Bhago, who is absconding. He is declared absconder.

3. Shortly stated the case of the prosecution is that PW-1

Jagat Singh, brother of deceased Kartar Singh lodged FIR

(Ex-PA) on 8/2/1999 at 8.40 a.m. with PW-12 ASI Keshav

Ram at Sadar Palwal, Faridabad. PW-1 Jagat Singh

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reported that on 7/2/1999 deceased Kartar Singh had left

their house for the Sugar Mill, Palwal. He drove his own

tractor. He was to bring back two trolleys of sugar cane

which were already parked outside the Sugar Mill. PW-1

Jagat Singh further reported that on 8/2/1999 at about 7.00

a.m., they were informed that the dead body of Kartar Singh

was lying in a pool of blood at a distance of 10 feet from the

road in the field of PW-1 Jagat Singh, a resident of

Gopalgarh. Both the trolleys were parked on the road side

but the tractor was not at the spot. PW-1 Jagat Singh

further reported that some unknown persons opened fire at

deceased Kartar Singh due to which he sustained injuries on

his waist and succumbed to the said injuries. PW-1 Jagat

Singh further reported that the said unknown persons had

taken away the tractor.

4. It appears that till 31/7/1999, the investigating agency

did not make any progress. According to the prosecution,

on 31/7/1999, A1-Pratham approached PW-4 Nathi Singh,

Ex-Member of Panchayat and told him that on 5/2/1999

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when he, accused-Shishu and A3-Gajraj were sitting in the

house of A1-Pratham, A3-Gajraj told them that they were in

need of money. A2-Pancho told them that he had a country

made pistol. They discussed about the Sugar Mill at

Bamnikhera where some farmers came with new tractors.

They planned a robbery. They went on a truck to

Bamnikhera at 7.00 p.m. where A3-Gajraj and accused-

Shishu had a conversation with deceased Kartar Singh.

When the tractor was unloaded, both of them accompanied

deceased Kartar Singh in his tractor. Accused-Shishu and

A1-Pratham were standing outside. When the tractor

traveled a distance of two killas, A3-Gajraj gave a signal to

A2-Pancho, who fired a shot at deceased Kartar Singh from

his country made pistol. A3-Gajraj stopped the tractor,

removed the dead body of deceased Kartar Singh and threw

it in a wheat field. They left the tractor trolley at the spot

and ran away with the tractor so as to reach Paramendra via

Barsana. A1-Pratham is further stated to have told PW-4

Nathi Singh that they took the tractor to accused-Bhago and

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narrated the entire incident to him and asked him to sell the

tractor and thereafter they went back to their house. A1-

Pratham is further stated to have told PW-4 Nathi Singh that

they came back after a couple of days and came to know

that the tractor could not be sold. Therefore, they removed

some parts of the tractor and left it on the road near

Bharatpur. As desired by A1-Pratham, he was produced

before PW-24 Inspector Raghbir Singh on 31/7/1999 by PW-

4 Nathi Singh. PW-24 Inspector Raghbir Singh arrested A1-

Pratham and interrogated him. According to PW-24 Raghbir

Singh, during interrogation, A1-Pratham told him that about

3-4 months back, he along with accused Shishu and other

accused had snatched a tractor, shot the driver of that

tractor, thrown his body in the field and taken the tractor

with them. On the same day, accused-Shishu was arrested

by PW-24 Raghbir Singh.

5. According to the prosecution, on 1/8/1999, A1-Pratham

disclosed that he had left the tractor on the road near

Bharatpur, concealed some parts, which had come to his

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share i.e. the seat cover, one thin rod along with bumper in

his field. In pursuance to this disclosure statement, the said

articles were recovered at the instance of A1-Pratham. A

battery box with one tool box is stated to have been

recovered at the instance of accused-Shishu. On

16/8/1999, PW-24 Inspector Raghbir Singh arrested A2-

Pancho near Dabchick on the basis of suspicion. His

personal search led to recovery of a country made pistol of .

315 bore (Ex-P12) which was taken into possession vide

recovery memo (Ex-PL). It was attested by PW-15

Samunder Singh, brother of deceased Kartar Singh and one

Hardev. On a statement made by A2-Pancho, the police also

discovered an iron pipe and three pieces of rope from under

stones at Village Barsana which were identified by PW-15

Samunder Singh to be that of their tractor. They were taken

into possession vide recovery memo (Ex-PM/1). On

25/9/1999, A3-Gajraj was arrested and at his instance,

three pieces of ropes are stated to have been recovered.

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6. Though the accused were charged under Section 396 of

the IPC, learned Sessions Judge was of the view that

conviction of the three accused cannot be recorded under

Section 396 of the IPC as only four persons had participated

in the crime. Learned Sessions Judge was of the view

further that A2-Pancho could be convicted under Section 302

of the IPC simplicitor and A1-Pratham and A3-Gajraj could

be convicted under Section 302 read with Section 34 of the

IPC. According to him, all the accused were also liable to be

convicted under Section 392 of the IPC. So far as A2-

Pancho is concerned, learned Sessions Judge sentenced him

to death for offence under Section 302 of the IPC as

according to him, it was a heinous crime which would have

wide ramification on the life of agricultural community. He

sentenced A1-Pratham and A3-Gajraj to undergo

imprisonment for life under Section 302 read with Section 34

of the IPC. All the accused were sentenced to undergo

rigorous imprisonment for 10 years for the offence under

Section 392 of the IPC.

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7. While dealing with the reference under Section 366 of

the Criminal Procedure Code (for short, "the Code") and the

criminal appeal filed by A1-Pratham and A3-Gajraj, the High

Court commuted the sentence of death imposed on A2-

Pancho to imprisonment for life. The High Court confirmed

the sentence of life imprisonment imposed on A1-Pratham

and A3-Gajraj. The High Court maintained the sentence

imposed on the accused for offence under Section 392 of the

IPC.

8. We have heard counsel for the parties. We also

requested Mr. Lalit, learned senior counsel to assist us. In

deference to our request, Mr. Lalit has, as usual, ably

assisted us.

9. There is no dispute about the fact that deceased Kartar

Singh died on account of firearm injuries. Evidence of PW-

17 Dr. Jagmohan Mittal, who did the postmortem on the

dead body of deceased Kartar Singh is clear on that point.

9

10. Extra-judicial confession made by A1-Pratham is the

main plank of the prosecution case. It is true that an extra-

judicial confession can be used against its maker, but as a

matter of caution, courts look for corroboration to the same

from other evidence on record. In Gopal Sah v. State of

Bihar1, this court while dealing with an extra-judicial

confession held that an extra-judicial confession is on the

face of it, a weak evidence and the courts are reluctant, in

the absence of chain of cogent circumstances, to rely on it

for the purpose of recording a conviction. We must,

therefore, first ascertain whether extra-judicial confession of

A1-Pratham inspires confidence and then find out whether

there are other cogent circumstances on record, to support

it.

11. We have already referred to the evidence of PW-4 Nathi

Singh before whom A1-Pratham is stated to have confessed

that A2-Pancho had shot dead deceased Kartar Singh with

country made pistol. PW-24 Inspector Raghbir Singh has

1 (2008) 17 SCC 128

1

stated that A1-Pratham confessed that they had shot dead

deceased Kartar Singh. He does not say that A1-Pratham

told him that A2-Pancho had fired at deceased Kartar Singh.

The incident is stated to have occurred in the night

intervening 7/2/1999 and 8/2/1999. About five months

later, on 31/7/1999, A1-Pratham is stated to have made a

confession. This delay creates a doubt about its credibility.

Besides, in his evidence PW-4 Nathi Singh has stated that

his village is about 35 to 40 k.m. from the village of A1-

Pratham and none of his relatives stay in that village. He

has stated that he knew A1-Pratham; that he had come to

his village at about 7.30 to 8.00 a.m. and stayed with him

for 2.00 to 2.30 hours. It does not stand to reason that A1-

Pratham would go voluntarily to PW-4 Nathi Singh, who

stayed in another village which is about 35 to 40 k.m. away

from his village and make a confessional statement to him.

The prosecution evidence does not indicate that A1-Pratham

and PW-4 Nathi Singh knew each other intimately. It is,

therefore, difficult to accept the prosecution case that A1-

1

Pratham made any extra-judicial confession to PW-4 Nathi

Singh. It may be stated here that in his statement recorded

under Section 313 of the Code, A1-Pratham has denied that

he made any such statement. This retraction further makes

a dent in the alleged extra-judicial confession.

12. A2-Pancho was arrested on 16/8/1999 near Dabchick

Modale. According to the prosecution, his search resulted in

recovery of a country made pistol (Ex-P/12) of .315 bore.

The recovery of country made pistol is made more than

about six months after the date of incident. It is true that

the report of FSL (Ex-PT) states that the country made pistol

marked W/1 was test fired and that bullet marked BC/1

taken out from the body of deceased Kartar Singh had been

fired from the said country made pistol. The report also

states that the holes on the clothes of deceased Kartar Singh

which were sent for examination, had been caused by bullet

projectiles. We are, however, of the opinion that, on the

basis of this report, it is difficult to come to a conclusion that

A2-Pancho was responsible for the firearm injury caused to

1

deceased Kartar Singh. The prosecution has not led any

evidence to show as to in whose custody this pistol was

during the period of six months after the incident. In his

statement recorded under Section 313 of the Code, A2-

Pancho has denied that any such recovery was made from

him. Even assuming that the recovery is proved, we are

unable to hold in the absence of any other cogent evidence

that it is sufficient to establish that A2-Pancho caused the

fatal firearm injury to deceased Kartar Singh with the said

pistol.

13. Apart from the pistol which is stated to have been

recovered from A2-Pancho, the prosecution has relied on

certain other discoveries made at the instance of the

accused. On 1/8/1999, pursuant to the statement made by

A1-Pratham, one bumper, one patli and one seat cover are

stated to have been discovered. PW-15 Samunder Singh,

brother of the deceased identified the said articles to be that

of their tractor. On 16/8/1999 at the instance of A1-Pancho,

three pieces of ropes along with an iron pipe are stated to

1

have been discovered. PW-15 Samunder Singh identified

them as parts of their tractor. These discoveries are made

five months after the incident and significantly, PW-15

Samunder Singh, who is the brother of the deceased, is

stated to be present when the discoveries were effected and

all articles are identified by him. Pertinently, he has signed

the discovery statements of all the accused. Articles which

are stated to have been discovered are easily available in

the market. There is nothing special about them. Belated

discovery of these articles raises a question about their

intrinsic evidentiary value. Besides, if as contended by the

prosecution, the accused wanted to sell parts of the tractor,

it is difficult to believe that they would preserve them till

1/8/1999. The evidence relating to discovery of these

articles must, therefore, be rejected.

14. As against A2-Pancho, the prosecution is relying mainly

on the extra-judicial confessional statement of A1-Pratham.

The question which needs to be considered is what is the

evidentiary value of a retracted confession of a co-accused?

1

15. The law on this point is well settled by catena of

judgments of this court. We may, however, refer to only

two judgments to which our attention is drawn by Mr. Lalit,

learned senior counsel. In Kashmira Singh v. The State

of Madhya Pradesh,2 referring to the judgment of the Privy

Council in Bhuboni Sahu v. The King,3 and observations of

Sir Lawrence Jenkins in Emperor v. Lalit Mohan

Chukerbutty,4 this court observed that proper way to

approach a case involving confession of a co-accused is,

first, to marshal the evidence against the accused excluding

the confession altogether from consideration and see

whether, if it is believed, a conviction could safely be based

on it. If it is capable of belief independently of the

confession, then it is not necessary to call the confession in

aid. This court further noted that cases may arise where the

judge is not prepared to act on the other evidence as it

stands even though, if believed, it would be sufficient to

sustain a conviction. In such an event, the judge may call in

2 AIR 1952 SC 159

3 76 Indian Appeals 147

4 38 Cal. 559

1

aid the confession and use it to lend assurance to the other

evidence and thus fortify himself in believing what without

the aid of the confession, he would not be prepared to

accept.

16. In Haricharan Kurmi v. State Bihar,5 the

Constitution Bench of this court was again considering the

same question. The Constitution Bench referred to Section

3 of the Evidence Act and observed that confession of a co-

accused is not evidence within the meaning of Section 3 of

the Evidence Act. It is neither oral statement which the

court permits or requires to be made before it as per Section

3(1) of the Evidence Act nor does it fall in the category of

evidence referred to in Section 3(2) of the Evidence Act

which covers all documents produced for the inspection of

the court. This court observed that even then Section 30

provides that a confession may be taken into consideration

not only against its maker, but also against a co-accused.

Thus, though such a confession may not be evidence as

5 AIR 1964 SC 1184

1

strictly defined by Section 3 of the Evidence Act, it is an

element which may be taken into consideration by the

criminal court and in that sense, it may be described as

evidence in a non-technical way. This court further

observed that Section 30 merely enables the court to take

the confession into account. It is, not obligatory on the

court to take the confession into account. This court

reiterated that a confession cannot be treated as substantive

evidence against a co-accused. Where the prosecution relies

upon the confession of one accused against another, the

proper approach is to consider the other evidence against

such an accused and if the said evidence appears to be

satisfactory and the court is inclined to hold that the said

evidence may sustain the charge framed against the said

accused, the court turns to the confession with a view to

assuring itself that the conclusion which it is inclined to draw

from the other evidence is right. This Court clarified that

though confession may be regarded as evidence in generic

sense because of the provisions of Section 30 of the

1 Evidence Act, the fact remains that it is not evidence as

defined in Section 3 of the Evidence Act. Therefore, in

dealing with a case against an accused, the court cannot

start with the confession of a co-accused; it must begin with

other evidence adduced by the prosecution and after it has

formed its opinion with regard to the quality and effect of

the said evidence, then it is permissible to turn to the

confession in order to receive assurance to the conclusion of

guilt which the judicial mind is about to reach on the said

other evidence.

17. Applying the above principles to the case on hand, we

find that so far as A2-Pancho is concerned, except the

evidence of alleged belated discovery of certain articles at

his instance, which we have already found to be doubtful,

there is no other evidence on record to connect him to the

offence in question. When there is no other evidence of

sterling quality on record establishing his involvement, he

cannot be convicted on the basis of the alleged extra-judicial

confession of the co-accused A1-Pratham, which in our

1

opinion, is also not credible. Once A1-Pratham's extra-

judicial confession is obliterated and kept out of

consideration, his conviction also cannot be sustained

because we have come to the conclusion that the alleged

discovery of articles at his instance cannot be relied upon.

There is thus, no credible evidence to persuade us to uphold

the conviction of A1-Pratham.

18. In view of the above, we set aside the impugned

judgment and order. A1-Pratham and A2-Pancho are on

bail. Their bail bonds stand discharged.

19. Appeals are disposed of in the aforestated terms.

.....................................................J.

(AFTAB ALAM)

.....................................................J.

(RANJANA PRAKASH DESAI)

NEW DELHI,

OCTOBER 20, 2011.