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TMI Blog1957 (4) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt. That is why he convicted them of the offence charged and sentenced each one of them to death. On appeal to the High Court of Punjab, the order of conviction and sentence imposed against Harbans Singh and Sarwan Singh was confirmed whereas the order of conviction and sentence against Gurdial Singh was set aside and he was ordered to be acquitted and discharged. Accused No. 1, Harbans Singh, and accused No. 3, Sarwan Singh, have come to this Court in appeal by special leave. It would be convenient to state the prosecution case very briefly at the outset. Gurdev Singh, the victim of the assault, was the brother of accused No. 1. It appears that the father of the two brothers had left the Ga village some years ago and is apparently no longer alive. Harbans Singh was a shirker and a waster and that made Gurdev Singh impatient. When Gurdev Singh tried to improve Harbans Singh, Harbans Singh resented Gurdev Singh's efforts and his irritation and annoyance had reached such a stage and extent that he began to plan his murder. According to the story of the prosecution, Harbans Singh got in touch with his friends Sarwan Singh and Gurdial Singh and requested them to assist him in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used a kirpan. The attack was undoubtedly brutal and callous and it resulted in as many as 69 incised wounds and two contused injuries which had been caused with a blunt weapon. Having assaulted (Gurdev Singh in this brutal manner his assailants ran away. Harbans Singh returned to his village and raised a hue and cry. He complained that his brother had been carried away by a number of persons and he pretended that his brother's assailants were Darshan Singh, Jagat Singh, Gurnam Singh and Banta Singh of the village Pona. The villagers-, however, found that Harbans Singh was not keen on joining them in rendering help to the victim or in pursuing his assailants. Finally, however, he was persuaded to accompany the villagers and the villagers in the company of Harbans Singh reached the stop where Gurdev Singh's body was found in a pool of blood. Thereafter Harbans Singh went to the police station and made a report of the occurrence at about 10-30 p.m. He alleged in his report that his brother had been murdered by the aforesaid four persons of the village of Pona. Purporting to act on this report, the police reached the spot in the early hours of the next morning and so the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case against Gurdial Singh had not been proved beyond a reasonable doubt. In the result Gurdial Singh was acquitted; but the view taken by the learned Judges in respect of the prosecution case against Harbans Singh and Sarwan Singh was that the approver's evidence supplied the basis for the prosecution case against them and since it was corroborated by circumstantial evidence to which reference has already been made and by the confession of Sarwan Singh, there was no difficulty in confirming the order of conviction and sentence passed against these two accused persons. It is this view which is challenged before us by the two appellants in the present appeals. Since the present appeals have been filed by special leave under Art. 136 of the Constitution, it would normally not be open to the appellants to raise questions of fact before us. Prima facie the orders of conviction and sentence passed against the appellants are based on concurrent findings of fact and we would be slow to interfere with such findings unless we are satisfied that the said findings are vitiated by errors of law or that the conclusions reached by the courts below are so patently opposed to well establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver. Mr. Kohli's contention is that since the learned Judges of the High Court of Punjab have failed to address themselves to this initial question, their appreciation of the approver's evidence suffers from a serious infirmity. In our opinion, this contention is well- founded. We have carefully read the judgment delivered by the High Court but we find no indication in the whole of the judgment that the learned Judges considered the character of the approver's evidence and reached the conclusion that it was the evidence given by a reliable witness. The only statement which we find in the judgment dealing with this topic is that since the main evidence in the case consists of the testimony of the approver it is necessary to consider the case of each J. appellant individually. With respect, this observation is open to the criticism which has been made against it by Mr. Kohli. The argument that the character of the approver's evidence has not been considered by the High Court cannot be characterised as merely academic or theoretical in the present case b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the neck of the victim. In his statement before the police, the approver had said that Gurdial Singh had carried a kirpan. We are deliberately not referring to the several other minor discrepancies which have been brought out in the evidence of the approver in his cross-examination. In our opinion, the discrepancies brought out in the evidence of the approver qua the prosecution case against Gurdial Singh coupled with the more serious discrepancies in his evidence in the prosecution case against Harbans Singh lead to only one conclusion and that is that the approver has no regard for truth. It is true that in his second statement recorded on November 29, the approver substantially changed his first story and involved Harbans Singh in the commission of the offence, and in that sense, his second statement can be said to be consistent with his evidence at the trial. But we cannot lose sight of the fact that, within three days after the recording of his second statement, he was granted pardon and his statement was recorded under s. 164 of the Code of Criminal Procedure on the same day. Therefore it would be legitimate for the accused to contend that the additions made by the approver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made at the place of Gurdev Kaur cannot be pressed into service against Harbans Singh because Gurdev Kaur herself has not been examined and the importance of the recovery of a kirpan and a red scabbard from the spot cannot obviously be exaggerated. In our opinion, there is no doubt whatever that, if the approver's evidence is rejected as unreliable, the other evidence on which the prosecution relied against Harbans Singh cannot possibly sustain his conviction of the offence of murder. We must, therefore, hold that the finding of the learned Judges of the High Court that the offence of murder has been proved against Harbans Singh is vitiated by a serious infirmity to which we have just referred and must be reversed. If the learned Judges have failed to address themselves to the initial question of law before dealing with the merits of the approver and if, in dealing with his evidence, they have failed to take into account the glaring and obvious inconsistencies in the account given by the approver, it is open to the appellant to challenge the validity of their conclusion. In the result, the appeal preferred by Harbans Singh must be allowed, the order of conviction and sente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tests in the matter. As in the case of the evidence given by the approver, so too unfortunately in the case of the confession of Sarwan Singh the attention of the learned Judges below does not appear to have been drawn to some salient and grave features which have a material bearing on the question about the voluntary character of the confession. Sarwan Singh was arrested on November 25. His clothes were found blood-stained and he is alleged to have been inclined to help the prosecution by making the statement which led to the discovery of incriminating articles. All this happened on the 25th itself and yet, without any ostensible explanation or justification, Sarwan Singh was kept in police custody until November 30. That is one fact which is to be borne in mind in dealing with the voluntary character of his confession. What happened on November 30 is still more significant. On this day he was sent to the Magistrate to record his confessional statement. The evidence of the Magistrate Mr. Grover shows that the accused was produced before him at about 2-30 p.m. He was given about half-an-hour to( think about the statement which he was going to make and soon thereafter the confession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in s. 24 of the Indian Evidence Act. There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded. In our opinion, in the circumstances of this case it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspected that there were some people near about he shouted to Harbans Singh and before Harbans Singh came on the spot assault had begun. This part of the prosecution story as deposed to by the approver is inconsistent with the material statement in the confession. According to the confession, Dial Singh gave a Dang blow to Gurdev Singh on the head from the front. This statement is not borne out by medical evidence. There does not appear to be a corresponding injury on the head of the victim. Sarwan Singh says that he took the kirpan which was first used by Harbans Singh and gave two blows to Gurdev Singh on his thigh. This statement again is not borne out by the medical evidence -about the injuries on the body of the victim. Similarly, the statement of Sarwan Singh that the handle of the kirpan was broken and he got his finger injured with it is not easily reconcilable with the medical evidence about the injury itself. Unfortunately these discrepancies between the confessional statement and the main prosecution evidence given by the approver have not been noticed by the learned Judges of the High Court. Indeed, after having found that the confession was voluntary, it appears to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... likely that Sarwan Singh may have offered to demonstrate that the shoes did not fit in with his feet. In any event, failure to give him an opportunity to explain the circumstances by putting an appropriate question to him under s. 342 justifies his argument that this circumstance should not be used against him. Besides, like the evidence given by Rakha, the identity of the shoes would also be a very minor circumstance in relation to the charge of murder for which Sarwan Singh is being tried. The result is that, if the approver's evidence is discarded as unworthy of credit and his own retracted confession is excluded from consideration as not being voluntary or true, whatever circumstantial evidence remains is obviously insufficient to bring home to Sarwan Singh the charge framed against him. If that be the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder. It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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