Shankaria vs State Of Rajasthan
- SCC(1978) 3 SCC 435
- Neutral1978 INSC 92
- AIRAIR 1978 SC 1248
- SCR[1978] 3 SCR 736
Ratio decidendi
The rule this decision rests on
A confession recorded under Section 164 of the Code of Criminal Procedure 1973, if voluntarily and truthfully made, is an efficacious proof of guilt. When a capital case depends primarily on an accused's confession recorded under Section 164 Cr.P.C., the Court must apply a two-stage test: first, whether the confession was perfectly voluntary; second, if voluntary, whether it is true and trustworthy. Voluntariness is a condition precedent to admissibility, and a confession appearing to result from any inducement, threat or promise mentioned in Section 24 of the Indian Evidence Act must be excluded summarily. To assess the reliability of a confession when the first test is satisfied, the Court must examine the confession and compare it with the rest of the evidence in light of surrounding circumstances and probabilities. If the confession appears to be a probable catalogue of events naturally fitting with other evidence and surrounding circumstances, it may be taken to have satisfied the second test. The time required for an accused to reflect before recording a confession depends on the circumstances of each case, with the object being to ensure complete freedom from police influence. Where an accused was in judicial custody beyond police reach for some days immediately before the confession is recorded, such custody may itself dispel fear or police influence from the accused's mind, and it may not be necessary to allow a prolonged additional period in jail or judicial lock-up. The provision in Section 164(3) Cr.P.C. that an accused must not be handed back to the investigating officer after recording a confession is a substantive requirement; breach of this provision would support an inference that the confession was not voluntary, but evidence that custody was given to a Challani guard or judicial officer rather than the investigating police indicates no breach. Track evidence from foot-moulds and foot-prints, while not by itself sufficient to carry conviction, is relevant circumstantial evidence which taken into account along with other evidence may reinforce the conclusion as to identity of the culprit. Under Section 4 of the Identification of Prisoners Act, police are competent in Rajasthan to take specimen finger-prints of an accused without an order from a Magistrate, and the opinion of a finger-print expert based on such impressions is admissible in evidence.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
PETITIONER:SHANKARIA
Vs.
RESPONDENT:STATE OF RAJASTHAN
DATE OF JUDGMENT26/04/1978
BENCH:SARKARIA, RANJIT SINGHBENCH:SARKARIA, RANJIT SINGHUNTWALIA, N.L.KAILASAM, P.S.
CITATION:1978 AIR 1248 1978 SCC (3) 435
ACT:Proof of guilt-Tests to be applied by the Courts in acapital case when relying solely on confessional statementof the accused-Identification of Prisoners Act, Sections 4and 5-Obtaining of thumb impression in the presence ofMagistrate, whether necessary-Track evidence is a relevantcircumstance which can be taken into account along withother evidence.
HEADNOTE:The appellant was tried, convicted and sentenced to deathunder Section 302, Penal Code for the double murder ofKartar Singh and Mada Singh deceased, by the Sessions Judge,Ganganagar. He was further convicted for offences underSections 307, 459, 460 and 380 Penal Code. The case of theprosecution rested mainly on the confessional statement, Ex.p.27, part from supporting circumstantial evidence. Thelearned Sessions Judge found that the confessional statementthough retracted at the time of examination under Section313, Criminal Procedure Code, had been voluntarily made bythe accused and that it was true and had been corroboratedin some particulars by the other evidence on record.Shankaria's appeal to the High Court was dismissed, thereference made by the Sessions Judge was accepted and theconviction and sentence of death were confirmed.In appeal by special leave, it was contended that (i) theconfession was not voluntarily made but was the result ofpolice pressure, inducement and coercion and that thisinference was deducible among others, from several featuresof the case. (ii) after the preliminary questioning, theMagistrate hardly give 20 minutes to the appellant forreflection before recording his confession, which accordingto the ruling of this Court in Sarwan Singh v. State ofPunjab [1957] SCR 953 the Magistrate should have sent theaccused back for at least 24 hours to jail to think anddecide, as to whether or not he should make a confession and(iii) there is reason to suspect that after recording theconfession, the appellant was handed back to the PoliceSuperintendent who then took him to Hanumangarh. If that bea fact, it would amount to a contravention of subsection (3)of Section 164 of the Code of Criminal Procedure, 1973,giving rise to an inference that the confession was notvoluntary.Dismissing the appeal, the CourtHELD : 1. A confession recorded u/s 164 Criminal ProcedureCode, if voluntarily and truthfully made, is an efficaciousproof of guilt. [744 B-C]2. When in a capital case the prosecution demands, aconviction of the accused, primarily on the basis of hisconfession recorded under s. 164 Criminal Procedure Code,the Court must apply a double test;(1) Whether the confession was perfectly voluntary ?(2) If so, whether it is true and trustworthy ?Satisfaction of the first test is a sine qua non for itsadmissibility in evidence. If the confession appears to theCourt to have been caused by any inducement, threat orpromise, such as is mentioned in Section 24, Evidence Act,it must be excluded and rejected brevi manu. In such a case,the question of proceeding further to apply the737second test, does not arise. If the first test issatisfied, the Court must before acting upon the confession,reach the finding that what is stated therein is true andreliable. For judging the reliability of such a confession,or for that matter of any substantive piece of evidence,there is no rigid canon of universal application. Even so,one broad method which may be useful in most cases forevaluating a confession, may be indicated. The Court shouldcarefully examine the confession and compare it with, therest of the evidence, in the light of the surroundingcircumstances and probabilities of the case. If on suchexamination and comparison, the confession appears to be aprobable catalogue of events and naturally fits in with therest of the evidence and the surrounding circumstances, itmay be taken to have satisfied the second test. [744 C-F]3. (a) In the instant case. both these tests weresatisfied. The confession (Ex. P-27) was found to bevoluntary and true. Its perusal showed that there wasnothing improbable or unbelievable in it. It appeared to bea spontaneous account, studded with such vivid details aboutthe manner of committing the crimes in question, which onlytheir perpetrator could know. The physical facts found atthe spot in the morning following the night of occurrence,told a tale which was consistent with the one told by theaccused in his confession. Among these physical facts was adibbi bearing finger-prints, one of which according to theExpert of the Government Finger Print Bureau, tallied withthe specimen finger-print of the, accused. The accused'sfinger-print on the dibbi which was seized from the spot andsealed before the arrest of the accused, and the seals onwhich remained intact till they were opened by the Finger-Print Expert, was a tell-tale circumstance, pointing towardsthe guilt of the accused. r 752 D, F, 754 D, 759 Al(b) The confessional statement received assurance from theother evidence also.(i) It was corroborated by the medical evidence in regardto the nature of the weapon (kassi) with which according tothe confession the injuries were inflicted. This fact wasfurther confirmed by the report of the Serologist who foundhuman blood on the kassi.(ii) The moulds of the bare-foot prints found at the sceneof crime, according to the Expert, tallied with the specimenfoot-moulds of the accused.(iii) Although, by itself, such track evidence could notbe deemed sufficient to carry conviction, yet it was arelevant circumstance which taken into account along withthe other evidence, reinforced the conclusion as to theidentity of the culprit. [755 B, C, 759 D, E]4. The condition precedent for recording a confession by aMagistrate in the course of Police Investigation, isprovided in Section 164(2) Cr. P.C. which mandates theMagistrate riot to record any confession, unless uponquestioning the accused person making it, he has reason tobelieve that it is being made voluntarily. In the instantcase, the Magistrate fully complied with the condition. Thelarge number of clear and pointed questions put by theMagistrate to the accused for this purpose and the answersgiven by the latter shows that the Magistrate had cogentreasons to believe that the confession was being voluntarilymade. [749 E, F-G]5. How much time for reflection should be allowed to Inaccused person before recording his confession, is aquestion which depends on the circumstances of each case.The object of giving such time for reflection to theaccused. is to ensure that he is completely free from policeinfluence. If immediately before the recording of theconfession, the accused was in judicial custody beyond thereach of the investigating police for some days, then suchcustody from its very nature, may itself be a factordispelling fear or influence of the police from the mind ofthe accused. In such a case, it may not be necessary tosend back the accused person for any prolonged period tojail or judicial lock-up before recording his confession.In the instant case, the accused was got admitted to thejudicial lock-up on the 12th June for getting his confessionrecorded under s. 164 Cr. P.C., and, such admission wasmade738under the orders of the Magistrate who, ultimately recordedhis confession on the 14th June. The accused was for abouttwo days in judicial custody beyond the reach of the Police.On June 13, 1974 a written request was made to theMagistrate by the Police, for recording the confession ofthe accused. Even then the Magistrate postponed therecording of the confession till the following day,obviously because he wanted to give the appellant one daymore in judicial custody to ponder over the matter free fromPolice influence. On the 14th June, notwithstanding thefact that the accused Shankaria was in judicial custody fromthe evening of the 12th June, the Magistrate after thepreliminary questioning, allowed 15 minutes more to theaccused for reflection. Thus, the accused had in fact about38 or 40 hours in judicial custody, immediately precedingthe confession, and this was rightly considered sufficientto secure to him freedom from fear or influence of thePolice. [750 E-F, 751 A]Sarwan Singh v. State of Punjab [1957] SCR 953;distinguished.Abdul Razak v. State of Maharashtra AIR 1970 SC 283followed.6. There was no infringement of sub-section (3) of s. 164Crl. P.C. According to the testimony of the Magistrate (PW6) and the Superintendent of police (PW 22) the custody ofthe accused was no handed to the to the investigatingofficer, but to the Challani guard who escort under trialsto and from Jail/ Judicial' guard.[751 E-F, 754A]Regarding the sentence:7. The crimes were committed in a most brutal anddastardly fashion. The victim were taken unawares whenasleep. Two of them were blind. The Neronian conduct ofthe accused even after the occurrence, in languishing in thestricken premises, looking for something to cat in thekitchen, drinking water, smoking bidis, bringing water andbathing himself, mindless of the specter of the slain andthe groans and gasps of the dying, betrays an extremedepravity of character. The grisly and gruesome nature ofthe murders, the hapless and helpless state of the victims,the fiendish modus operandi of the appellant the first killand then steal- all, the heart of law to call for itsextreme penalty. [759 H, 760 A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION :Criminal Appeal No. 561 of1976.
Appeal by special leave from the Judgment and Order dated 5-5-1976 of the Rajasthan High Court in D. B. Crl. Appeal No.491 of 1975 and D. B. Reference No. 4 of 1975.S. K. Gambhir (Amicus Curiae) for the Appellant.S. N. Kacker, Sol. Genl, S. M. Jain, Dalveer Singh andRanjeev Dutta for the Respondent.
The Judgment of the Court was delivered bySARKARIA J.-This appeal by special leave is directed againsta judgment of the High Court of Rajasthan, by which theorder of the Sessions Judge, Ganganagar, convicting theappellant under Section 302 Penal Code and sentencing him todeath for the double murder of two. persons in VillageTakhat Hazara, was confirmed.
The facts of the prosecution case are as followsA First Information Report was lodged on September 9, 1973at about 7.30 a.m. by one Shyam Singh in Police StationSadul Sahar, to the effect that when he in the morning wentto the Gurdwara of his739village at about 7 a.m. for brooming and burning incense, asusual, he found three persons, one of whom, Mada Singh, laygroaning on a cot. The informant went back to the village,contacted Jagar Singh, Hari Singh, Sukhdarshan Singh, AmarSingh and others, and in their company returned to theGurdwara. It was then detected that kartar Singh son ofHari Singh lay dead on a cot with injuries on his head. Theother two persons, Mada Singh and Wazir Singh, were lyinginjured. The locks of the rooms were found broken and thegoods lay scattered. After registering the case, the StationHouse Officer, Bhagwan Singh reached the scene ofoccurrence. He prepared the site plan (Ex. P-8) and aconnected explanatory note in which be recorded the physicalfacts noticed by him at the spot. Among other things, hefound one blood stained Kassi (Article 1) and a Dibbi (smalltin-box) (Article 2). Some coins were also lying scatteredthere. He noticed some finger-prints on the Dibbi (Art. 2).He, therefore in the presence of witnesses includingSukhdarshan Singh (P.W.6), Jaggar Singh (P.W. 8), preparedthe seizure, memo (Ex. P. 14) in respect of the Dibbi andsealed it into a parcel. He also sealed the blood-stainedKassi into a parcel, vide Ex. P-12. He also took intopossession blood-stained earth, clothes and broken locksfrom the scene. He also prepared the inquest report (Ex.P- 12) in respect of the dead body of Kartar Singh deceasedand sent it for postmortem examination. Bhagwan Singhcontinued the investigation till September 12, 1973 when itwas taken over by Bhanwar Singh.
A large number of crimes of this pattern involving murdersor attempted murders were committed in Rajasthan and in theneighbouring States of Haryana and Punjab. Fifteen cases ofcrimes of a similar nature, were registered in GanganagarDistrict, alone, from February 1973 to May 1974. Naturally,the Police machinery of Ganganagar District came intomotion. Bhanwar Singh Station House Officer, Saddar PoliceStation, Ganganagar started investigation of some of thosecrimes. He took over the investigation of this case also onSeptember 12, 1973. Shri Shyam Pratap Singh Rathore,District Superintendent of Police supervised the,investigation. Suspicion fell on the appellant who wasfound absent from his native village Karanpur, DistrictGanganagar.
On June 3, 1974, Shri Rathore accompanied by Bhanwar Singh,S. H. O. and one Subhash (P.W. 23) went to Bhatinda andarrested the appellant, Shankaria who had assumed the aliasRattan Lal. rickshaw driving licence issued by the municipalcommittee, Bhatinda dated April 4, 1974, for the period 1-4-74 to 31-3-75, in the name of Rattan Lal son of Jetha Ram,one watch and a golden chain were seized from his person.Bhanwar Singh prepared the memo (Ex. P-56A) in respect ofthe arrest of the appellant-and his personal search. Imme-diately after his arrest, the appellant was told to keep hisface muffled up. which he did. The appellant was then takenby the police to Ganganagar and lodged in the lock-up of thePolice Station on June 4, 1974. Under orders of theInspector-General of Police, the investigation was takenover by Shri Kashi Prasad Srivastava, Superintendent ofC.I.D. on June 5, 1974.
740On June 12, 1974, the appellant was taken by the police toRaisingh Nagar, and under the orders of the Magistratelodged in the judicial lock-up there.
On June 13, 1974, Shri Srivastava, Superintendent of C.I.D.,submitted an application to the Judicial Magistrate, FirstClass, Raisingh Nagar, requesting that the confessionalstatement of the accused be recorded. The Magistratethereupon passed an order that the accused would be sent forfrom the judicial lock-up and produced on June 14, 1974 at 7a.m. for this purpose. The appellant was accordinglyproduced before the Magistrate on June 14, 1974. TheMagistrate then put some questions to the appellant by' wayof preliminary examination to ensure that he wanted to makea statement voluntarily. The Magistrate gave him some timefor reflection and from 8.45 a.m. onwards, recorded hisconfessional statement (Ex. P-27).
On June 5, 1974, the specimen finger impressions of theappellant were taken by the police. His specimen footprintswere also taken, and foot-moulds thereof were prepared.Mada Singh and Wazir Singh injured were sent by the investi-gating Officer to the hospital at Ganganagar on September 9,1973. Since some argument was made before us with regard tothe nature of the inflicting weapon, it is necessary to notethe details of the injuries. Dr. Bahadur Singh found theseinjuries on Mada Singh
1. Incised wound 1-1/2" x 1/4" brain deepon the right side of forehead 1" above theeye-brow.
2. Incised wound 1/4" x 1/2" x 1" on righteye outer angle.
3. Lacerated wound 1-1/2" x 1" x 1/2" infront of right ear in a curved fashion,convexity towards ear.
In the doctor's opinion, all these injuries were suspectedto be grievous and caused with a sharp weapon, like theKassi (Art. 1). Mada Singh succumbed to his injuries onSeptember 11, 1973 at 6 a.m. in the hospital.Dr. M. P. Agarwal conducted the autopsy of Mada Singh andfound these external injuries :
1. Bruise 21" x 1-1/2" on both the righteye-lids.
2. Incised wound 1/4" x 1" at the outerangle of right eye.
3. Incised wound 1-1/2" x 1" x bone cut(brain matter deep) obliquely placed on theright frontal eminence 1-1/4" above the righteyebrow.
4 Lacerated wound 1-1/2" x 1/3" x 1" infront of the tragues of right ear-
7415. Soft tissues swelling 6" x 5" all overthe right face and front temporal region.
On opening the body, the doctor found soft tissue harmotomaall over the right temporal, frontal, parietal and occipitalregion, and a linear oblique fracture of right temporalregion with multiple fracture pieces and fracture of rightfronto-parietal region under injury No. 3. There was sub-dural haemorrhage and membrane of the brain were found cutunder injury No. 3. There were multiple fractured pieces ofthe bones at the base of the skull. The Injuries 2 and 3 inthe opinion of Dr. Agarwal could be caused with the sharpedge and Injury No. 4 with blunt side of the Kassi (Art. 1).The injuries appeared to be caused by separate blows.Dr. Bahadur Singh found these injuries on Wazir Singh (P.W.)on September 9, 1973 :
1. Incised wound 1-1/2" x 1/8" upto brainon right parietal bone 2-1/2" above the earobliquely upward downward.
2. Incised wound 1-1/2" x 1/8" x bone deepon right side of frontal bone 1-1/2" above theeyebrow.
3. Lacerated wound curved shape outer partof eye starting from lateral side ofeyebrow upto maxillary prominence.
Injuries 1 and 2, in the Doctor's opinion, could be causedwith the sharp side of the Kassi (Art.1), and were grievous;while Injury 3 could be caused with the blunt side of thisKassi. Wazir Singh was unconscious at the time of hismedical examination.
Dr. Bahadur Singh performed postmortem examination of thebody of Kartar Singh deceased on September, 9, 1973 andfound these injuries :
1. Lacerated wound 2-3/4"x1/2" upto brainmatter on the frontal bone 21' above themedial end of right eyebrow upward downward.
Brain matter was seen from the wound. Thebone was found fractured.
2. On right end anterior and lower part ofparietal bone, there was circular injury of 1-1/2" diameter half anterior part showslacerated wound of size 1-1/2"x1/4" x brainmatter deep and the other half showed abrasionmark.
3. '.Incised wound 1' x 1/4" x 1/4" abovethe lateral side of right eyebrow.
In his opinion,injuries 1 and 2, could be caused with thebase of the wooden handle affixed to the hook of the Kassi(Art. 1). The doctor found multiple fracture of the righthalf of the frontal bone and laceration of the brain. Theinjuries were sufficient to cause death in the ordinarycourse of nature.
742On June 29, 1974, the sealed packets containing the Dibbi(Art. 2) and the locks, together with the specimen finger-prints of the accused, were sent to the Rajasthan Finger-Print Bureau, Jaipur for comparison of the fingerimpressions and opinion. At the Bureau, the Finger-PrintExpert, Shri P. N. Tankha (P. W. 18) examined them andfound two chance prints on the Dibbi. He took theirenlarged photographs and found that the chance print Q1 onthe Dibbi was similar to the left middle-finger specimenprint (marked S2) of Shankaria appellant; while the otherchance print Q2 on the Dibbi was not distinct enough toadmit of comparison.
During his examination at the trial, the appellant deniedthe prosecution case; he retracted the confession and saidit bad been made under duress. He also alleged fabricationof evidence of footprints, etc. by the Police.The learned Sessions Judge found that the confessionalstatement (Ex. P-27) had been voluntarily made by theaccused and that it was true. He further held that theconfession had been corroborated by the medical evidence andthe circumstantial evidence, namely : (a) the presence of afinger-print of the accused on the Dibbi (Art. 2); (b) thatone railway ticket was issued from Sadul Shahar to Bhatindaon September 9 1973; (c) the similarity (as per Expert,P.W.19) of the foot-mould prepared from the foot printsfound at the scene of crime on 9-9-1973, with the specimenfoot-moulds of the accused; (b) sojourn of the accused toHaridwar after committing the crime and his stay in a costlyhotel there, on 13th and 14th September, 1973, etc.In the result, the Sessions Judge convicted the appellantunder Section 302 Indian Penal Code for the murders ofKartar Singh and Mada Singh and sentenced him to death. Hefurther convicted the appellant under Section 307 I.P.C. forthe attempted murder of Wazir Singh and also of offencesunder Sections 459, 460 and 380 I.P.C. for committinglurking house trespass by night and stealing Rs. 1,100/-from there but he did not award any sentence on these countsin view of the death sentence imposed for the double murder.Shankaria appealed to the High Court; while the SessionsJudge also made a reference for confirmation of the deathsentence.
The High Court dismissed the appeal and confirmed theconviction and the sentence of death.
Hence, this appeal by special leave.
There is no ocular evidence of eye-witnesses in this case.At the time of occurrence, the three victims were the onlyinmates of the Gurdwara. Kartar Singh died at the spot.Mada Singh died in the Hospital without regainingconsciousness. The lone survivor, Wazir Singh (P.W. 14) wasexamined at the trial. He was a blind He had received thehead injuries when he was asleep. On receiving thoseinjuries he lost consciousness and regained it much later inthe hospital on September 9, 1973. In these circumstances,P.W. 14743was unable to say as to who had caused him the headinjuries. He, however, did depose to the theft of Rs. 600/-which he had kept in the Gurdwara. This amount had beenraised from a contribution for construction of a room in theGurdwara.
Thus the conviction of the appellant mainly rests on hisconfessional statement (Ex. P-27), which was recorded bythe Judicial Magistrate, First Class (Shri S. K. Bansal,P.W. 6) on June 14, 1974, under Section 164 of the Code ofCriminal Procedure.
The substantive part of this confessional statement, Ex. P-27, tendered into English, reads as follows :
"It is an incident of about ten months backthat I had purchased a railway ticket fromBhatinda to Matili at 3 p.m. in the day andboarded the train from Bhatinda and reachedMatili at about 7.30 p.m. Thereafter tookrail track and reached Takhat Hazara. I hidin the nala in the cotton field near TakhatHazara. There, I kept sitting and stayedthere upto 12.30 in the night. At about 12.30I came out of the nala, crossed the line andreached the Gurdwara. There, I took off myclothes, chappals, and tried to climb the wallby the side, of the line but could notsucceed. Therefore, I climbed through theside and one kassi was lying there in acorner. There in the courtyard, three bedswere lying. I picked up the kassi and hit onthe head of one person from the back (reverse)side of the kassi. Thereafter, I hit anotherperson. I hit the third person after running,as he was sleeping very far. I then drankwater, entered the kitchen but could not findanything in spite of search. Then I enteredanother room, opened the kunda (khuta). Therea short was lying, from which I took out akey. I broke open the lock and got Rs. 700/-and got nothing else during the search. ThenI broke open the lock of another house withthe help of a subble (iron bar). There I wasable to get Rs. 400/, out of which Rs. 300/-were in cash and Rs. 100/ as change (smallcoins). I then remained there for much time,drank water, smoked a bidi, brought water fromthe nearby Johar (tank) in a bucket, andbathed myself.
"Then I opened the Gurdwara and searched it,but could not find anything. I thenimmediately left the village Takhat Hazara andtook the railway track again and reached theroad and got on Abohar-Sirsa Road. There Istayed upto 7 a.m. In the morning I boardedthe bus for Sangaria at 7 a.m. and stayedthere at the station. I stayed there upto 10a.m. and took tea. Then I boarded the trainfor Bhatinda at 10 a.m. and reached Bhatindaat 12.30. There I got the clothes stitched.In the evening at 10, I boarded the train forDelhi, (then said) I went to Bikaner and notDelhi. I stayed for two days at Bikaner.After two days went to Delhi and stayed therefor two days. From Delhi, proceeded for744Haridwar and stayed there in a rented room @Rs. 12/- per day. I stayed at Haridwar for 8-9 days and then from Haridwar I proceeded forRishikesh. There I stayed for two days andfurther proceeded for Lachman Jhoola. Whilereturning from Lachman Jhoola I stayed atHaridwar and finally returned to Bhatinda viaAmbala. I did not do any work for one month.Afterwards, I started Rikshaw driving. 1 usedto commit thefts, and the police also used tocatch me, I was turned out from the house bythe people of my house and that is why Ihappened to ply the Rickshaw."
This confession was retracted by the appellant when he wasexamined at the trial under Section 313 Cr. P.C. on June14, 1975. It is well settled that a confession, ifvoluntarily and truthfully made, is an efficacious proof ofguilt. Therefore, when in a capital case the prosecutiondemands a conviction of the accused, primarily on the basisof his confession recorded under Section 164 Cr. P.C., theCourt must apply a double test :
(1) Whether the confession was perfectly voluntary ?(2) If so, whether it is true and trustworthy ?
Satisfaction of the first test is a sine quo non for itsadmissibility in evidence. If the confession appears to theCourt to have been caused by any inducement, threat orpromise such as is mentioned in Section 24 Evidence Act,it must be excluded and rejected brevi manu. In such acase, the question of proceeding further to apply the secondtest, does not arise. If the first test is satisfied,the Court must before acting upon the confession reach thefinding that what is stated therein is true and reliable.For judging the reliability of such a confession, or forthat matter of any substantive piece of evidence there isno rigid canon of universal application. Even so, one broadmethod which may be useful in most cases for evaluating aconfession, may be indicated. The Court should carefullyexamine the confession and compare it with the rest of theevidence, in the light of the surrounding circumstances andprobabilities of the case. If on such examination andcomparison, the confession appears to be a probablecatalogue of events and naturally fits in with the rest ofthe evidence and the surrounding circumstances, it may betaken to have satisfied the second test.
Now, let us apply these tests to the confession (Ex. P-27):
The first question is whether the confession was voluntary ?In this connection, some undisputed facts may be noted. Theappellant was arrested by Shri S.P. Rathore, Superintendentof Police on June 3, 1974 at Bhatinda. He was then taken toGanganagar in Rajasthan in connection with the investigationof 15 crimes of a similar pattern committed in GanganagarDistrict. The appellant remained in police custody uptoJune 12, 1974 on which date in the afternoon, he was broughtby the police to Raisingh Nagar, where Shri SukhdarshanKumar Bansal, Judicial Magistrate First Class, was thenholding his Court. Under the orders of the Magistrate, theappellant was committed to the judicial lock-up at RaisinghNagar in the evening of June74512, 1974. Thereafter, he remained there in the judiciallock-up for two days more. On June 13, 1974, Shri KashiRam, Superintendent of Police, submitted an application tothe Magistrate, requesting him to record the confession ofthe accused. On that application, the Magistrate passed anorder to the effect that the accused be sent for from thejudicial lock-up on the following day at 7 a.m. forrecording his confessional statement. In compliance withthe Magistrate's order, the appellant was brought from thejudicial lock-up in the morning of June 14, 1974 andproduced before the Magistrate. At 8.20 a.m., theMagistrate put some questions to the appellant by way ofpreliminary examination to ensure whether he wanted to makea confession voluntarily. The questions put to the accusedand the answers given by him during this preliminaryexamination, as recorded by the Magistrate may be extracted:
"Q. 1. From where did the police arrest you ? On what day orat what time ?
Ans. I was arrested at Bhatinda. I was arrested on 3rd at
2.Q. 2. For how much time are you in police custody ?Ans. I was in police custody from 3rd to 12th.Q. 3. What sort of behaviour was given to you during thatperiod ?
Ans- I have been extended good behaviour by the police.Q. 4. It has been explained to you that it is notnecessary for you to make any confession. Do you understandthat it is at your discretion whether you make theconfession or not ?
Ans. I have understood that it is not binding upon me tomake any confession and it is at my discretion.Q. 5. Were you put to any physical torture or shown anyfear compelling you to make any confession ?Ans. I was not put to any physical torture or any fear tomake confession.
Q. 6. Where you told that you will be released orpardoned or any other benefit will be given, in case youmake confession ?
Ans. I was not told that I would be released orpardoned or any other benefit will be given, in case ofmaking confession.
Q. 7. It has been explained to you that you will not behanded over to the police in case you do not make confessionand that you will directly be sent to the Jail.Ans. I have understood.
Q. 8. Do you understand that I am a Magistrate and thatif you make any confession, it may be used against you inevidence ?
Ans. Yes.
13-315SCI/78746Q. 9. It has fully been explained to you that you arenot bound to make confession and that you may give anystatement whenever you like to make it voluntarily and thatif you make confession that may be used against you inevidence. Now, tell, what you want to say ?Ans. I have understood that it is not binding upon me tomake confession and that it may be used against me inevidence."
After this preliminary examination, the Magistrate startedrecording of the confessional statement at 8.45 a.m. Afterthe completion of the statement (Ex. P-27) (which we haveextracted earlier), at its foot, the Magistrate made amemorandum, which rendered into English, reads as follows :
"I have explained to Shankaria alias Ratan Lalthat he is not bound to make a confession andthat if he does so, any confession whatever hemakes, may be used against him in evidence andI believe that this confession of the crimehas been made voluntarily by him (Shankaria).This confession has been made in my presenceby him (Shankaria). By my reading, over, onhearing it, the accused admitted it to becorrect. It is a true and full record of thestatement which he (Shankaria) madevoluntarily."
The Magistrate, Shri Bansal, was also examined as a witnessat the trial. He proved the record of the confession andtestified that he bad recorded it after fully satisfyinghimself that the confession was being made voluntarily.Mr. S. K. Gambhir, appearing as amicus curiae, argued thecase very thoroughly on behalf of the appellant. It iscontended by him that the confession (Ex. P-27) was notvoluntarily made but was 'the result of police pressure,inducement and coercion. According to him, this inferenceis deducible from these circumstances(1) No explanation is forthcoming as to why the accused wasbrought all the way from Ganganagar to Raisingh Nagar forgetting the confession recorded there. Possibly, the policedid not want to give the appellant an opportunity of havingindependent advice which could more easily be available inthe District town of Ganganagar rather than at the Sub-Divisional town, Raisinghnagar.
(2) The Judicial Lock-up, Raisingh Nagar, being contiguousto the Police Station is almost a part of it. The appellanttherefore, even on the 12th, 13th and 14th of June 1974,during the time when he was an inmate of the Judicial Lock-up, could not be said to be free from police surveillanceand influence.
(3) The Magistrate hardly gave 20 minutes to the appellantfor reflection before recording his confession. It ismaintained that according to the ruling of this Court, theMagistrate should have given at747least 24 hours to, the appellant, to think and decide whilein the judicial lock-up, as to whether or not he should makea confession. (Reliance in this connection has been placedon the decision of this Court in Sarwan Singh v. State ofPunjab(".)).
(4) There is reason to suspect that after recording theconfession, the appellant was handed back to the PoliceSuperintendent, Shri Srivastava who then took him toHanumangarh. If that be a fact, it would amount to acontravention of sub-section (3) of Section 164 of the Codeof Criminal Procedure, 1973, giving rise to an inferencethat the confession was not voluntary.
It is proposed to deal with these points ad seriatim. Thelearned Solicitor-General submits that at the relevant time,Shri S. D. Kumar Bansal was posted as Munsif-cum-JudicialMagistrate First Class at Sri Ganga Nagar, but he used tocome to hold his Circuit Court at Raisingh Nagar for 15days. It is pointed out that on June 12, 1974 when thequestion of recording the confession of the appellant arose,no Judicial Magistrate of the First Class, competent torecord a confession, was available at Ganga Nagar. Ourattention has been invited to the entries in the Roznamachaof Police Station, Sadar Ganganagar which reveal this fact.Stress has also been placed on the fact that no questionwhatever was put to S/Shri Srivastava (P.W. 20) and Bhan-warSingh (P.W. 21) in cross-examination to show that on June12, 1974, a Magistrate competent to record a confessionunder Section 164 Cr.P.C. was available at Ganganagar andthat the appellant was taken to Raisinghnagar with asinister motive or for extorting a confession. There ismerit in the submission made by the learned Solicitor-General.
The relevant Roznamcha entries of Police Station Sadar,Ganganagar, which were proved by Bhanwar Singh, S. H. O.(P.W. 21), have been read out to us. From those entries, itappears that the appellant was taken on June 12, 1974 fromGanganagar to Raisingh Nagar for getting his 'confessionrecorded by a Magistrate, because on that date no JudicialMagistrate of the First Class was available at Ganganagar.It may be noted further, that in cross-examination, noquestion was put to Shri Bhanwar, Singh or Shri Srivastavato show that on 12-6-74 a Magistrate competent to record aconfession, was available at Ganganagar, or that theappellant was taken to Raisingh Nagar with a mala fidemotive, although the appellant was at the trial properlydefended by Shri Ganpat Ram, who, we are told, is anexperienced lawyer. There is nothing on the record toindicate that the appellant was taken to Raisingh Nagar todeprive him of the opportunity of having independent legaladvice, or with any other oblique motive.
As regards point No. (2), the appellant during hisexamination under Section 313 Cr.P.C., stated : "Duringthose days, Kanshi Prasad Ji was staying in the PoliceStation, Raisinghnagar which is adjacent to the JudicialLock-up, and used to see and threaten me". Thereafter, theconfusional statement (Ex. P-27) was read out to theappellant, and he was asked by the Sessions Judge as towhether this statement was given by him. To this, theappellant replied : '51 did(1) (1957) S.C.R. 953.
748not give this statement voluntarily. I have given thisstatement under compulsion due to the fear, threat andbeating given by Shri Kashi Prasad."
In cross-examination, no question was put to Shri KashiPrasad Srivastava to show that the Judicial Lock-Up RaisinghNagar is adjacent to the Police Station, nor was he askedwhether at the material time, he was staying in the PoliceStation Raisingh Nagar. Shri Srivastava was however askedas to whether he had compelled and beaten the accused tomake the confessional statement. This was sharply denied byhim.
Questions were however put to Shri S. K. Bansal, JudicialMagistrate (P.W.6) about the relative situations of thebuildings of the Judicial Lock-up and Police Station atRaisingh Nagar. Shri Bansal stated that the Judicial Lock-Up is at a distance of 150 to 200 feet from the Court atRaisinghnagar. He was then questioned: "Is Police StationRaisingh Nagar adjacent to the Judicial Lock-Up?" Thewitness replied: "The Police Station is constructed near itbut the building is a separate one. I do not know whetherthere is any common wall in between or not. I cannot saywhether a man can peep through/'from tile common wall, whichis four feet high .... between the Police Station and the'Judicial Lock-Up. I do not know as to whether the doors ofthe Police Station and Judicial Lock-Up are in one side. Icannot say whether the distance in between them is about 30feet." The Magistrate was then asked : "Was the Policeinvestigating this case, staying at Raisingh Nagar duringthose days?" The witness answered: "I cannot say, as I hadnever been to Police Station Raisingh Nagar."The evidence of the Magistrate, referred above, shows nomore than the fact that the Judicial Lock-Up at RaisinghNagar is located in a separate building, near the PoliceStation. But from the mere fact that the judicial lock-Upis located in the proximity of the Police Station, it doesnot follow that both are, under the control of the Police.The judicial lock-Up-as appears from the statement of theMagistrate, Shri Bansal-is a Sub-Jail governed by the JailManual. The watch and ward staff of the Judicial Lock-Upare under the control of the Jail Superintendent or theMagistrate who may be the ex-officio Superintendent of theSub-Jail (including the Judicial LockUp). The preciseposition as to whether Shri Bansal or any other Magistratewas in charge of the Judicial Lock-Up is not clear from ShriBansal's statement, because he was not specifically andfully questioned in regard to this aspect of the matter.Even so, this much is clear that the Judicial Lock-Up wasnot under the control. of Shri Srivastava. Even PoliceStation, Raisingh Nagar, could not be under theadministrative control of Srivastava as he was not theDistrict Superintendent of Police but belonged to theC.I.D., and his headquarter was at Jaipur. In thesecircumstances, it cannot be believed that from 12th to 14thJune 1974, Shri Srivastava was staying in Police StationRaisingh Nagar. An Officer of his status, belonging to,another branch of the Police Department, normally is notexpected to use a Police Station for his board and lodgingwhile on tour. Moreover. as already mentioned, not a singlequestion was put to Srivastava or Bhanwar Singh to show thatthey halted in the Police Station.
749kaisingh Nagar is a Sub-Divisional Town. There must be aRest House or an Inspection Bungalow for stay of theGovernment Officers on official tour. Had these officersbeen questioned on this point, they would have disclosedtheir halting place which could be checked with reference totheir T.A. Bills or the record maintained at the Rest House.No question was put to these officers as to whether they hadat all visited the Police Station. If Srivastava had reallyvisited the Police Station during this period, his visitmust have been reflected in the Daily Diary of the PoliceStation. The Daily Diary of the Police Station was neversummoned. It will therefore, be not unreasonable to inferthat the entries in the Daily Diary of the Police Station donot show that Srivastava visited this Police Station duringthe period from 12th to 14th June, 1974.
We therefore, do not find any substance in Point No. 2.It may be noted that despite a specific question put by theMagistrate to the accused during his preliminary examinationon 14-6-1974, lie (accused) did not complain about anythreat, inducement, pressure or beating given to him by ShriSrivastava or anybody else. The courts below weretherefore, right in rejecting the belated plea to thateffect set up by the appellant.
This takes us to Point No. (3). The argument is that theMagistrate should have given at least 24 hours to theappellant after his preliminary examination, to think overthe matter, in Jail, free from fear of the Police.It is true that the interval between the preliminaryexamination of the appellant and the recording of hisconfessional statement was about 15 minutes. But there isno statutory provision in Section 164 Cr. P.C or elsewhere,or even an executive direction issued by the High Court thatthere should be 'an interval of 24 hours or more between thepreliminary questioning of the accused and the recording ofhis confession. The condition precedent for recording aconfession by the Magistrate in the ;course of Policeinvestigation is provided in Section 164(2) Cr.P.C. whichmandates the Magistrate not to record any confession, unlessupon questioning the accused person making it, he his reasonto believe that it is being made voluntarily.In the instant case, the Magistrate fully complied with thecondition. He (Shri Bansal) has testified that beforerecording the confession he had fully satisfied himself thatthe accused wanted to make the confession voluntarily.The large number of clear and pointed questions put by himto the appellant for this purpose and the answers given bythe latter have been extracted in full earlier. Theirperusal shows that the Magistrate had cogent reasons tobelieve that the confession was being voluntarily made.Although the interval between the preliminary questioning ofthe appellant and his confession was about 15 minutes, theappellant had no less than 38 hours at his disposal, whilsthe was in judicial custody750free from fear or influence of the Police, to think anddecide whether or not to make a confession. As noticedalready, the appellant was brought from Ganganagar toRaisingh Nagar on June 12, 1974 because on that day noMagistrate competent to record the confession of theappellant was available at Ganganagar. The appellant wasadmitted to the Judicial Lock-Up Raising Nagar under theorders of the Magistrate about or after 4 p.m. on that date.Thereafter, the appellant continuously remained in theJudicial Lock-Up or judicial custody till his confession wasrecorded on June 12, 1974 from 8.45 a.m. onwards. TheMagistrate, Shri Bansal was. aware that the appellant wascontinuously in judicial custody since the evening of June12, for about 38 or 40 hours preceding the confession.In Sarwan Singh v. State of Punjab (supra) this Court hademphasised that before recording a confession, theMagistrate should see that the mind of the accused personwas completely free from any possible interference of thepolice. In that context, it was observed that "theeffective way of securing such freedom from fear to theaccused person is to send him to jail custody and give himadequate time to consider whether he should make aconfession at all." In this connection, it was suggested:.......... speaking generally, it would, we think, bereasonable to, insist upon giving an accused person at least24 hours to decide whether or not he should make aconfession." The Court was careful enough to preface thissuggestion with the remark that "it would naturally bedifficult to lay down any hard and fast rule as to the timewhich should be allowed to an accused person in any givencase." (emphasis added).
It will be seen that how much time for reflection should beallowed to an accused person before recording hisconfession, is a question which depends on the circumstancesof each case. The object of giving such time for reflectionto the accused, is to ensure that he is completely free frompolice influence. If immediately before the recording ofthe confession, the accused was in judicial custody beyondthe reach, of the investigating police for some days, thensuch custody from its very nature, may itself be a factordispelling fear or influence of the police from the mind ofthe accused. In such a case, it may not be necessary tosend back the accused person for any prolonged period tojail or judicial lock-Up. In the instant case, the accusedwas got admitted to the judicial lock-Up on the 12th Junefor getting his confession recorded under Section 164 Cr.P. C., and such admission was made under the orders of theMagistrate who ultimately recorded his confession on the14th June. The accused was for about two days in judicialcustody beyond the reach of the police. On June 13, 1974, awritten request was made to the Magistrate by the police,for recording the confession of the accused. Even then, theMagistrate postponed the recording of the confession tillthe following day, obviously because he wanted to give theappellant one day more in judicial custody to ponder overthe matter free from Police influence. On the 14th June,notwithstanding the fact that the accused Shankaria was injudicial custody from the evening of the 12th June after thepreliminary questioning,751the Magistrate allowed 15 minutes more to him forreflection. Thus considered, Shankaria bad, as a matter offact, about 38 or 40 hours in judicial custody, immediatelypreceding the confession, and this was rightly consideredsufficient to secure freedom from fear or influence of thePolice to him (Shankaria).
The facts in Sarwan Singh v. State of Punjab (ibid) wereentirely different. Therein, the accused who had visiblemarks of injuries was straightaway brought by the Policefrom its prolonged custody, and produced before theMagistrate who immediately thereupon recorded hisconfessional statement, while the Police Sub-Inspectorremained outside in the verandah of the Magistrate's office.The Magistrate did not ask the accused how he came to beinjured. It was in these circumstances that this Court heldthat the failure of the Magistrate to give adequate time tothe accused to consider the matter, stamped it isunvoluntary.
The facts of the case in hand are, substantially in linewith those of Abdul Razak v. State of Maharashtra(1) There,the accused was kept after his arrest in police custody fora fortnight. Then, after being kept in jail custody forthree days, he was produced before the Executive Magistratefor recording confession. The Magistrate after a warningsent back the accused to jail and then recorded his confes-sion on the following day. Repelling the contention thatthe accused remained in prolonged police custody and hisconfession was not voluntary, this Court held that theaccused had spent four days in judicial custody and he wasnot under the influence of the investigating agency for atleast four days.
For the above reasons, we negative the third point canvassedby Mr. Gambhir.
As regards point No. (4) the Magistrate has stated thatafter recording the confession, he had handed over thecustody of the accused to the Challani guard i.e. the guardwho bring under-trials from the Judicial Lock--up to theCourt. The Challani guard was not under the control of theinvestigating agency. During the preliminary questioning ofthe appellant, the Magistrate had assured him that in nocase-whether he made a confession or not-he would be sentback to Police custody. Accordingly the Magistrate,according to his testimony, did not send the accused back topolice custody. Instead, the gave the custody of theappellant to the Challani guard, which means jail orjudicial custody.
A suggestion was put to Shri K. P. Srivastava in cross-examination, that after the confession bad been recorded,the accused was taken to Hanumangarh and the witness hadaccompanied him. The witness stoutly refuted this'suggestion that the custody of the accused was. after theconfession, given to him or the investigating Police. Hehowever, affirmed that the accused was sent to the judiciallock-up Hanumangarh. There was no good reason to disbelievethe evidence of the Magistrate P.W. 6) and theSuperintendent of Police (P.W. 22)(1) A.I R 1970 S.C. 283752to the effect that after recording the confession, thecustody of the accused was not handed to the investigatingpolice.
Mr. Gambhir's contention, therefore, is not factuallycorrect. There was no infringement of sub-section (3) ofSection 164 Cr. P.C. Thus, all the four points pressed intoargument by Mr. Gambhir, fail.
Another circumstance which reinforces the conclusion aboutthe confession being voluntary is that it was not retractedat the earliest opportunity. The confession was recorded onJune 14, 1974. The trial of the accused commenced onJanuary 10, 1975 when charges were framed and read over andexplained to the appellant by the Sessions Judge. At thetrial, he was defended by Shri Ganpat Ram, who, as alreadyobserved, was an experienced lawyer. The trial dragged onfor several months, because witnesses were examined piece-meal on different dates. The prosecution evidence wasclosed on June 14, 1975 and the accused was then examinedunder Section 313 Cr. P.C. It was during such examination,the appellant for the first time retracted the confessionand took up the plea that he had made it under duress of thepolice.
After bestowing our best consideration to all the questionsbearing on the 'point, we are of opinion that in thecircumstances of the case, the High Court was right incoming to the conclusion that this confession (Ex. P. 27)had been voluntarily made by Shankaria, accused.The next question is : Whether the confession (Ex. P-27) istrue? In this connection, it may be recalled that theappellant did not 'say that he was tutored by the Police tomake this confession. He did not say that the storyadumbrated in the confession (Ex. P--27) was put into hismouth by somebody else. He did not deny the factum ofmaking this confession. His plea in 'substance was that hehad made it but under compulsion and threat. He however.added that "the statement (Ex. P. 27) is false."A perusal of the confessional statement (Ex. P. 27 wouldshow that prima facie there, is nothing improbable orunbelievable in it. It appears to be a spontaneous account,studded with such vivid details about the manner of thecommission of the crimes in question, which only theperpetrator of the crimes could know.
Now let us compare the statement (Ex. 27) with the rest ofthe evidence.
In Ex. 27 the accused has inter alia stated facts which maybe rearranged as under.
(1) About midnight he took off his clothes, chappals andtried to climb the wall by the side of the railway line. butcould not succeed. Therefore, he climbed the wall throughthe side.
(2) One Kassi was lying there in a comer. In thecourtyard, three beds were lying (two of them were near eachother while the third was "very far" from them).
753(3) "I picked up the Kassi and hit with its reverse sideone of those persons, on the head. Thereafter, I hitanother person. I hit the third person "after running" tohim, "as he was sleeping very far."
(4) "I then drank water, entered the kitchen but could notfind anything in spite of search. Then I entered anotherroom, opened the Kunda( Khuta), there a short (shirt) waslying from which I took out a key. I broke open the lockand got Rs. 700/- and got nothing else during the search."(5) "Then I broke open the lock of another house with thehelp of Subble. There I was able to get Rs. 400/-".(6) "I then remained there for much time........ broughtwater from the nearby johar in a bucket, and bathed myself."(7) "Thereafter,I went to Bhatinda. In the evening(i.e. on 9-9-73) at 10 p.m. proceeded by train to Bikaner.I stayed for two days at Bikaner. After two days, I went toDelhi and stayed there for two days. From Delhi, Iproceeded for Haridwar and stayed there in a rented room atRs. 12/- per day."
Facts (1) to (6) in the confession (Ex. 27), findcorroboration, firstly, from the reliable circumstantialevidence brought on the record by the prosecution. Ex. P-8A is a memorandum which was prepared by A.S.I. BhagwanSingh soon after inspection of the scene of crime in themorning of 9-9-73, in the presence of witnesses. In thismemorandum, be noted the physical facts observed by him atthe scene, which according to his lights, were relevant.This explanatory memorandum is an annexure to the rough siteplan (Ex. P-8) which was then prepared by him. Theveracity of this site-plan (Ex. P-8) and the memorandum(Ex. P-8A) was never impeached. No: question was put toBhagwan Singh in cross-examination to challenge thegenuineness of these documents. Nor was any suggestion putto him that these documents were prepared subsequently orthat the facts noted therein were wrong.
In the memorandum (Ex. P-8A), Bhagwan Singh has inter alianoted :
"The bare-foot prints of the culprit arepresent at the outer side near the walltowards the Western (side) of the Gurdwara atNo. 7. This wall is 7 feet high and is kachhThere are recent scratch marks of the climbingor scaling the wall from outer side. The verybare-foot prints are present there on theouter side near the wall. It is through thisway that the culprit entered inside andreached the cots of * * * the sleepingpersons."
The circumstantial facts noted in the above extract tendassurance to the portion No. (1) of the confession.Assistant Sub-Inspector Bhagwan Singh has further noted inthe memorandum (Ex. P-8A) and the site-plan (Ex. P-8) thepresence of three cots of the victims in the courtyard ofthe Gurdwara. The754dead body of Kartar Singh with head injury was lying of onecot at point No. 2 shown in the site-plan. Wazir Singh layinjured on a cot at a distance of 6 feet from that of KartarSingh, while Mada Singh was lying injured on a cot 8 feetfarther away. The blood-stained Kassi (Art. 1) was lyingnear the cot of Wazir Singh. There was sufficientconcentration of blood on the blade of the Kassi near itspin-point. There was blood underneath all the three cots.These facts observed by A.S.I. Bhagwan Singh and recorded inEx. P-8 and Ex. P-8A, inferentially lend assurance to whatwas stated by the appellant in the portions (2) and (3),above extracted from his confession (Ex. 27).In Ex. P-8 and Ex. P-8A, Bhagwan Singh noted the presenceof bare foot-prints in the bath-room and the kitchen (shownat point Nos. 23 and 24, respectively, in the site-plan).He further observed the marked resemblance of these foot-prints with the foot-prints supposed to be of the culprit,found near the cot on which the sant (divine) lay dead inthe vicinity of the courtyard. He has shown these points byarrow marks in the site-plan. Bhagwan Singh has- furthernoted in the said document that at the site the locksincluding be detached bolts are lying near the detachedframes of the three residential rooms. He has also notedhow clothes, small coins, iron trunks and other householdarticles were lying scattered in the rooms.These circumstantial facts found at the spot tell a talewhich is consistent with the one told by the appellant inthe portions (4), (5) and (6) of his confessional statement.The portion marked (7) of the confession receives directsupport from the evidence rendered by Sita Ram (P.W. 13),and the record (Ex. P-36) of the hotel at Haridwar whichbears the signatures of the appellant Ratan Lal and of thewitness, Sita Ram. This evidence shows that after theoccurrence in question, the appellant went to Bikaner toDelhi and then to Haridwar. He stayed in a hotel atHaridwar paying Rs. 12/- per day on 13-9-73 and 14-9-73.Mr. Gambhir contends that the medical evidence contradictsthe confession inasmuch as it is stated therein that theappellant caused only one injury to each of the victims withthe reverse side (i.e. the pin-point) of the Kassi (Art. 1).The contention is devoid of merit. As already noticed, Dr.Bahadur Singh clearly stated that the incised injuries foundon the victims could be caused with the sharp edge of theKassi (Art. 1) while their other injuries could be causedwith the reverse side of the same Kassi. It may however, beconceded that from the medical evidence the possibility ofthe assailant having given more than one blow to the victimscannot be ruled out. But in his confessional statement, theappellant is not categorical with regard to the number ofblows inflicted by him on the victims. All that he says is,that he hit each of the three victims, one after the other,in quick succession, on the head. The medical evidenceshows' that the blows on the heads of the victims had been755given with great force. The autopsy of Kartar Singh andMada Singh revealed that their skull-bones had been brokeninto fragments. The first blow received by each of thethree sleeping victims, two of whom were blind persons, musthave stunned them into coma.
Be that as it may, the failure of the appellant to say inhis confessional statement the precise number of blows givento the victims, does not amount to a material discrepancybetween the confession and the medical evidence. The factremains that the medical evidence corroborates theconfessional statement inasmuch as it is mentioned hereinthat the injuries to the victims were caused with a Kassi.The report of the Chemical Examiner and the Serologist showsthat human blood was found on the Kassi (Art. 1). Thatreport further confirms the confessional statement withregard to the use of this weapon in assaulting the victims.The courts below have further relied upon the circumstancethat a finger-print on the dibbi (Article 2) from which Rs.400/- in cash, kept by Karnail Singh (P. W. 15) had beenstolen by the culprit, was identified as that of theappellant. The prosecution case was that among otherarticles, this dibbi (tin box) was lying in a room in theyard of the Gurdwara. A.S.I. Bhagwan Singh while inspectingthe scene of occurrence on 9-9-73, saw some fingerimpressions on it. He, therefore, took it into possessionand sealed it into a packet, vide seizure memo (Ex. P. 14)in the presence of witnesses. Thereafter, he deposited itwith seals intact in the Malkhana of the Police Station,Sadul Sahar, and nobody tampered with it so long as thewitness remained posted in the Police Station. The sealedparcel containing the Dibbi was sent to the Finger PrintExpert under cover of a letter, dated June 29, 1974, fromShri Kashi Prasad Srivastava (P. W. 22), This witness (P.W. 22) testified that the seals on the parcel containing thedibbi were intact when it was sent to the Finger PrintExpert. Mr. Gambhir submits that the parcel containing thisDibbi was not sent to the Finger-Print Expert forphotographing and preserving the finger-prints said to havebeen found on it, till the 29th June,, 1974, i.e. 24 daysafter his specimen finger impressions were taken by thePolice. It is pointed out that no explanation has beengiven by the prosecution as to why this Dibbi was not sentto the Finger-Print Bureau, Jaipur, soon after its seizure,for taking enlarged photographs of the alleged finger-printson it. It is argued that in view of this unexplained delayin sending the dibbi to the Finger-Print Expert, there isreason to suspect that the finger-print of the appellant onthe Dibbi might have been obtained by force or trickery bythe police after his arrest. In this connection, it isemphasised that the prosecution has not led any satisfactoryor independent evidence that the 'seals on the parcelcontaining this Dibbi remained intact and had not beentampered with till it was sent on June 29, 1976 to theFinger-Print Expert and was opened by him.A similar contention was raised before the High Court. Thelearned Judges repelled it with these observations :
"There is no doubt that the prosecution hasfailed to lead evidence that the finger-printson the 'dibbi' Art. 2 were75 6not tampered with from 9-9-73 to 29-6-74 whenthey were sent to the Finger-Print Expert. Asstated above. there is ample evidence on therecord that when the 'dibbi' Art. 2 wasrecovered, it was sealed. P.W. 22 kashiPrasad has stated that the seals of Art. 2were intact when they sent it to the Finger-Print Expert. P. W. 16 Shri Tankha has alsostated that the seals on Art. 2 were intactwhen they were received by him. The mostimportant thing, which is to be kept in mind,is that the finger-prints of one individual donot tally with the finger-prints of any otherindividual. The science of finger-prints isitself a complete science for the purposes ofidentification. In what manner the finger-prints of the accused Shankaria on Art. 2'dibbi' could be tampered with, has not beenargued or suggested' The finger-prints on Art.2 have. on examination, been found to tallywith the specimen finger-prints of theaccused. Tampering of fingerprints on Art. 2would mean that some other finger-prints weresuper-imposed or substituted. But no otherfingerprints could be substituted or superimposed which would resemble and tally withthe finger-prints of the accused Shankaria.Accused Shankaria in his 'statement "underSection 342 (343 ?) Cr. P. C. recorded on 14-6-1974 and 23-6-74 has not categoricallystated that his finger-prints were obtained onan article like the iron 'dibbi' Art. 2. Inthe absence of such a plea by the accusedShankaria, the non-production of some evidenceon the part of the prosecution that thefinger-prints were kept intact during all thisperiod, loses all its importance........... Inview of these circumstances, we have nohesitation in holding that the finger-printson the iron 'dibbi' Art. 2 could not betampered with. As a matter of fact, as statedabove, the finger-prints could neither besubstituted nor superimposed, and therefore,the apprehension of the de-fence that thefinger prints could be tampered with, in theabsence of such evidence, is whollyunfounded."
While we agree with the conclusion of the High Court thatthere was no good reason to suspect that the finger-print ofthe appellant found on the dibbi, Art. 1, was a fabrication,we will like to clarify and elaborate a little the reasoningby which this conclusion is arrived at. The first aspect ofthe matter which needs clarification is that this is not acase where the prosecution had led no evidence, to show thatthe finger-prints on the dibbi, Art. 1, from the date of itsseizure to the date they were sent to the finger-printexpert, were intact and had not been tampered with.Firstly, there was the evidence of A.S.I. Bhagwan Singh (P.W. 16) that when in the morning of 9-9-73, he inspected thescene of occurrence, in the presence of witnesses, he foundthe dibbi, Art. 2, in the room of the Gurdwara. Some smallcoins were lying scattered near it. He saw finger marks onthis Dibbi. He therefore, seized it and sealed it into aparcel in the presence of the witnesses and prepared thememorandum, Ex. P-14, Bhagwar Singh clearly stated that hebad deposited the parcel, with seals in tact. in theMalkhana and nobody tampered with them so long as757remained in his charge. Secondly, there was the evidence ofShri Srivastava that on 29-6-74 when the sealed parcelcontaining the Dibbi was sent to the Finger-Print Bureau,Jaipur, the seals on it were intact.
The only deficiency in the evidence on this point is thatBhagwan Singh was not asked about the date upto which heremained incharge of the Malkhana or posted in PoliceStation Sadul Sahar. In cross-examination, he expressedignorance as to when the foot-moulds or the 'dibbi' weresent to the Finger-Print Expert. Probably, he wastransferred from this Police Station sometime before thatdate. At the date of his deposition (10-3-75), he wasposted in Police Station Hindu Mal Kot. In cross-examination, it was suggested to P. W. 16, that the"recovery memos of foot-print moulds and dibbi were preparedafter the accused was arrested. The witness sharply deniedthis suggestion.
The failure of the prosecution to bring out these details inevidence, in the circumstances of the case, is no ground tosuspect, that the finger impressions on the Dibbi had beentampered with or fabricated. It will bear repetition thatthe genuineness of the explanatory note (Ex. P-8A) attachedto the Site Plan, was not questioned by the defence. Thepresence of the dibbi (Art. 2), bearing some finger marks,and its seizure and sealing find mention in this document.However, the authenticity of memo (Ex. P-14) in which thepresence of finger-impressions on two sides of this dibbi ismentioned.--was questioned, halfheartedly.. This memopurports to bear the attestations of three witnesses, namely: Mithu Singh (P. W. 9) Shyam Singh (P. W. 3) and JaggerSingh (P. W. 8).
The High Court appears to have accepted their evidence withregard to the seizure of this dibbi, without discussion. Wewill there briefly refer to the 'same.
All these three witnesses speak with regard to the seizure of the Dibbi (Art. 2) by A.S.I. Bhagwan Singh from the scene of occurrence on 9-9-73, although there are natural Variations in regard to details in their evidence. Shyam Singh, P. W. 3, stated, "one' Dibbi" was also taken into possessi on by the police from there and 'sealed. Its recovery memo, Ex. P-14, heirs my signature. The Dibbi, Art. 2, present in the Court, is the same." The witness gave the time of taking this Dibbi into possession, at 8 a.m. Mithu Singh, P. W. 9, corroborated Shyam Singh, P.W. 3. He also identified his signature on the memo (Ex. P--14). Both these witnesses sharply refuted the suggestion put to them by the defence counsel, that the seizure memo, Ex. P- 14 was prepared wrongly, after the arrest of the accused. Even Jagger Singh, P. W. 8, who was allowed to be cross- examined by the Public Prosecutor, testified that the iron Dibbi, Art. 2, had been lifted from the spot and sealed by the Police in his presence.
758 He, however, stated that "the seizure memo Ex. P-14, does not bear my 'signature". This may be due to a lapse of memory. It does not appear from the record, that the memo Ex. P-14 was shown to him when this question was asked. Nothing was brought out in the cross-examination of these witnesses, particularly P. W. 3 and P. W. 9, to show that they were not speaking the truth. Their evidence taken in conjunction with that of A.S.1. Bhagwan Singh, had established beyond all manner of doubt that when this Dibbi was found at the scene of crime on 9-9-73, it had finger- prints on both sides which could be of the culprit who had opened it and taken away Rs. 400/- from it. That was why A.S.I.Bhagwan Singh sealed it there and then to preserve those finger-prints-
During his examination at the trial, the appellant did not say in positive specific terms, that after his arrest, he was made to handle the Dibbi (Art. 2); what the appellant then stated on this point was as. follows :
"The police had taken many moulds in the police station after my arrest so also many palm impressions on various things were not made. I do not know whether the dibbi was included amongst them or not." When the evidence of the Finger-Print Expect, Mr. P. N. Tankha (P. W. 18), to the effect-that one finger impression on the dibbi, Art. 1, tallied with the middle finger-print of the left hand of the accused was put to Shankaria, the latter answered : "The witness tells false."' This reply would be consistent only with the position that his fingerprints on the dibbi were not taken after his arrest.
The failure of the appellant to say in categorical terms that after his arrest he was made to handle this Dibbi. Art. (2), cuts at the root of his vague and omnibus plea that all evidence, including that of the foot-moulds, finger-prints, etc. had been fabricated by the Police. In the first place, as rightly observed by the High Court, fabrication of the fingerprints in the circumstances of the case was difficult, without super-imposition. Secondly, it is impossible to believe that an investigator of the status of a Superintendent of Police, would go to the length of causing substitution of the fingerprints of the accused in place of the original finger-print of another person on the Dibbi.
Mr. Gambhir next contends that in view of Section 5 of the Identification of Prisoners Act, it was incumbent on the police to obtain the specimen thumb-impressions of the appellant before a Magistrate, and, since this was not done the opinion rendered by the Finger-Print Expert, Mr. Tankha, by using those illegally obtained specimen finger impressions, must be ruled out of evidence. The contention appears to be misconceived because in the State of Rajasthan, the Police were competent under Section 4 of the Identification- of Prisoners Act, to take 'the specimen fingerprints of the accused, and this they did, in the instant case, before the Superintendent of Police, Shri K. P. 'Srivastava. It was not necessary for them to obtain an order from the Magistrate for obtaining such specimen fingerprints.
759 In view of all that has been said above, the presence, of the fingerprint of the appellant on the Dabbi, Art. 1, from which cash was stolen at the time of occurrence, is a tell- tale circumstance pointing towards the guilt of the appellant.
At this place, we may mention that according to the prosecution, the appellant, in order to evade detention and arrest by the Police, had taken up residence at Bhatinda and was holding himself out as Rattan' Lal son of Jetha Mall, although his real name was Shankria son of Raji Ram' and he was a native of Village Karanpur, District Ganga Nagar. Subhash P. W. 23, was examined by the prosecution to estab- lish this fact. P. W. 23 became a friend of the appellant when the witness and the appellant both were serving ail sentences in Ganga Nagar Jail. P. W. 23 had helped the Police in arresting the appellant from Bhatinda. At the trial also, P. W. 23 identified the appellant as the same person. The evidence of P. W. 23 has been believed by the courts below and Mr. Gambhir has not assailed it before us on any tangible ground.
Now. remains the evidence of the foot-moulds. These, moulds were prepared from the foot-prints of the suspected culprit, found in or near about the Gurdwara on 9-9-73. On 16-6-74, specimen bare-foot prints of the appellant were taken before the Additional District Magistrate and specimen foot-moulds were prepared therefrom. The two sets of foot-moulds were sent to the Expert, Mr. Tankha, at Jaipur on 29-6-74. W. Tankha testified at the trial that the foot-mould 5 (of one of the bare-foot prints found at the scene of crime) tallied with the specimen left foot-mould of the appellant. Although the science of identification of foot-prints and foot-moulds is not a developed science, and track evidence, by itself, may not be deemed sufficient to carry conviction in a criminal trial, yet it is a relevant circumstance which taken into account along with the other evidence, may reinforce the conclusion as to the identity of the culprit. In the instant case, the other evidence per se, was sufficient to fix the identity of the appellant with the crime. The evidence of similarity of the foot-moulds taken in conjunction with the circumstance,' that If at the scene of occurrence there were bare-foot prints which appear to be of one person, does lend further assurance to what the appellant has stated in his confessional 'statement with regard to his going about bare-footed inside and outside the Gurdwara at or about the time of committing the crimes in question.
To sum up, it was cogently established that the confession (Ex. P-27) was voluntarily made and it is true. Further, it receives assurance in several material particulars from reliable independent evidence, mainly of a circumstantial character. The confession. Ex. 27, coupled with the other evidence on the record, had unerringly and indubitably brought home the charges to the appellant,. The crimes were committed in a most brutal and dastardly fashion. The victims were taken unawares when they were asleep. Two of them were blind persons. His Neronian conduct even after-the occurrence in languishing in the stricken premises, looking for something to 760 eat in the kitchen, drinking water, smoking Bidis, bringing water and bathing himself, mindless of the specter of the slain and the groans and gasps of the dying, betrays an extreme depravity of character. The grisly and gruesome nature of the murders, the hapless and helpless state of the victims, the fiendish modus operandi of the appellant to first kill and then steal-all, steel the heart of law to call for its extreme penalty.
For all the foregoing reasons, we dismiss this appeal, affirm the judgment of the High Court and maintain the conviction of the appellant and the sentence of death awarded to him for the murders of Kartar Singh and Mada Singh.
S.R. Appeal dismissed. 761
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