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TMI Blog1978 (4) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... h, Hari Singh, Sukhdarshan Singh, Amar Singh and others, and in their company returned to the Gurdwara. It was then detected that kartar Singh son of Hari Singh lay dead on a cot with injuries on his head. The other two persons, Mada Singh and Wazir Singh, were lying injured. The locks of the rooms were found broken and the goods lay scattered. After registering the case, the Station House Officer, Bhagwan Singh reached the scene of occurrence. He prepared the site plan (Ex. P-8) and a connected explanatory note in which be recorded the physical facts noticed by him at the spot. Among other things, he found one blood stained Kassi (Article 1) and a Dibbi (small tin-box) (Article 2). Some coins were also lying scattered there. He noticed some finger-prints on the Dibbi (Art. 2). He, therefore in the presence of witnesses including Sukhdarshan Singh (P.W.6), Jaggar Singh (P.W. 8), prepared the seizure, memo (Ex. P. 14) in respect of the Dibbi and sealed it into a parcel. He also sealed the blood-stained Kassi into a parcel, vide Ex. P-12. He also took into possession blood-stained earth, clothes and broken locks from the scene. He also prepared the inquest report (Ex. P- 12) in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly produced before the Magistrate on June 14, 1974. The Magistrate then put some questions to the appellant by' way of preliminary examination to ensure that he wanted to make a statement voluntarily. The Magistrate gave him some time for reflection and from 8.45 a.m. onwards, recorded his confessional statement (Ex. P-27). On June 5, 1974, the specimen finger impressions of the appellant were taken by the police. His specimen footprints were 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 to the nature of the inflicting weapon, it is necessary to note the details of the injuries. Dr. Bahadur Singh found these injuries on Mada Singh 1. Incised wound 1-1/2" x 1/4" brain deep on the right side of forehead 1" above the eye-brow. 2. Incised wound 1/4" x 1/2" x 1" on right eye outer angle. 3. Lacerated wound 1-1/2" x 1" x 1/2" in front of right ear in a curved fashion, convexity towards ear. In the doctor's opinion, all these injuries were susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bone was found fractured. 2. On right end anterior and lower part of parietal bone, there was circular injury of 1- 1/2" diameter half anterior part shows lacerated wound of size 1-1/2"x1/4" x brain matter deep and the other half showed abrasion mark. 3. '.Incised wound 1' x 1/4" x 1/4" above the lateral side of right eyebrow. In his opinion,injuries 1 and 2, could be caused with the base of the wooden handle affixed to the hook of the Kassi (Art. 1). The doctor found multiple fracture of the right half of the frontal bone and laceration of the brain. The injuries were sufficient to cause death in the ordinary course of nature. On 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 finger impressions and opinion. At the Bureau, the Finger-Print Expert, Shri P. N. Tankha (P. W. 18) examined them and found two chance prints on the Dibbi. He took their enlarged photographs and found that the chance print Q1 on the Dibbi was similar to the left middle-finger specimen print (marked S2) of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to say as to who had caused him the head injuries. He, however, did depose to the theft of ₹ 600/- which he had kept in the Gurdwara. This amount had been raised from a contribution for construction of a room in the Gurdwara. Thus the conviction of the appellant mainly rests on his confessional statement (Ex. P-27), which was recorded by the Judicial Magistrate, First Class (Shri S. K. Bansal, P.W. 6) on June 14, 1974, under Section 164 of the Code of Criminal 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 back that I had purchased a railway ticket from Bhatinda to Matili at 3 p.m. in the day and boarded the train from Bhatinda and reached Matili at about 7.30 p.m. Thereafter took rail track and reached Takhat Hazara. I hid in the nala in the cotton field near Takhat Hazara. There, I kept sitting and stayed there upto 12.30 in the night. At about 12.30 I came out of the nala, crossed the line and reached the Gurdwara. There, I took off my clothes, chappals, and tried to climb the wall by the side, of the line but could not succeed. Therefore, I climbed throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under Section 164 Cr. P.C., 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 quo non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise 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 the second test, does not arise. If the first test is satisfied, the Court must before acting upon the confession reach the finding that what is stated therein is true and reliable. 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 for evaluating a confession, may be indicated. The Court should carefully examine the confession and compare it with the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by the police. Q. 4. It has been explained to you that it is not necessary for you to make any confession. Do you understand that it is at your discretion whether you make the confession or not ? Ans. I have understood that it is not binding upon me to make any confession and it is at my discretion. Q. 5. Were you put to any physical torture or shown any fear compelling you to make any confession ? Ans. I was not put to any physical torture or any fear to make confession. Q. 6. Where you told that you will be released or pardoned or any other benefit will be given, in case you make confession ? Ans. I was not told that I would be released or pardoned or any other benefit will be given, in case of making confession. Q. 7. It has been explained to you that you will not be handed over to the police in case you do not make confession and that you will directly be sent to the Jail. Ans. I have understood. Q. 8. Do you understand that I am a Magistrate and that if you make any confession, it may be used against you in evidence ? Ans. Yes. 13-315SCI/78 Q. 9. It has fully been explained to you that you are not bound to make confession and that you may give any statement whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eflection before recording his confession. It is maintained that according to the ruling of this Court, the Magistrate should have given at least 24 hours to, the appellant, to think and decide while in the judicial lock-up, as to whether or not he should make a confession. (Reliance in this connection has been placed on the decision of this Court in Sarwan Singh v. State of Punjab(".)). (4) There is reason to suspect that after recording the confession, the appellant was handed back to the Police Superintendent, Shri Srivastava who then took him to Hanumangarh. If that be a fact, it would amount to a contravention of sub-section (3) of Section 164 of the Code of Criminal Procedure, 1973, giving rise to an inference that the confession was not voluntary. It is proposed to deal with these points ad seriatim. The learned Solicitor-General submits that at the relevant time, Shri S. D. Kumar Bansal was posted as Munsif-cum-Judicial Magistrate First Class at Sri Ganga Nagar, but he used to come to hold his Circuit Court at Raisingh Nagar for 15 days. It is pointed out that on June 12, 1974 when the question of recording the confession of the appellant arose, no Judicial Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Kashi Prasad Srivastava to show that the Judicial Lock-Up Raisingh Nagar is adjacent to the Police Station, nor was he asked whether at the material time, he was staying in the Police Station Raisingh Nagar. Shri Srivastava was however asked as to whether he had compelled and beaten the accused to make the confessional statement. This was sharply denied by him. Questions were however put to Shri S. K. Bansal, Judicial Magistrate (P.W.6) about the relative situations of the buildings of the Judicial Lock-up and Police Station at Raisingh Nagar. Shri Bansal stated that the Judicial Lock- Up is at a distance of 150 to 200 feet from the Court at Raisinghnagar. He was then questioned: "Is Police Station Raisingh Nagar adjacent to the Judicial Lock-Up?" The witness replied: "The Police Station is constructed near it but the building is a separate one. I do not know whether there is any common wall in between or not. I cannot say whether a man can peep through/'from tile common wall, which is four feet high .... between the Police Station and the 'Judicial Lock-Up. I do not know as to whether the doors of the Police Station and Judicial Lock-Up are in one side. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had at all visited the Police Station. If Srivastava had really visited the Police Station during this period, his visit must have been reflected in the Daily Diary of the Police Station. The Daily Diary of the Police Station was never summoned. It will therefore, be not unreasonable to infer that the entries in the Daily Diary of the Police Station do not show that Srivastava visited this Police Station during the 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 the Magistrate to the accused during his preliminary examination on 14-6-1974, lie (accused) did not complain about any threat, inducement, pressure or beating given to him by Shri Srivastava or anybody else. The courts below were therefore, right in rejecting the belated plea to that effect set up by the appellant. This takes us to Point No. (3). The argument is that the Magistrate should have given at least 24 hours to the appellant after his preliminary examination, to think over the matter, in Jail, free from fear of the Police. It is true that the interval between the preliminary examination of the appellant and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In that context, it was observed that "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." In this connection, it was suggested :.......... 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." The Court was careful enough to preface this suggestion with the remark that "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." (emphasis added). It will be seen that how much time for reflection should be allowed to an accused person before recording his confession, is a question which depends on the circumstances of each case. The object of giving such time for reflection to the accused, is to ensure that he is completely free from police influence. If immediately before the recording of the confession, the accused was in judicial custody beyond the reach, of the investigating police for some days, then such custody fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after a warning sent back the accused to jail and then recorded his confes- sion on the following day. Repelling the contention that the accused remained in prolonged police custody and his confession was not voluntary, this Court held that the accused had spent four days in judicial custody and he was not under the influence of the investigating agency for at least four days. For the above reasons, we negative the third point canvassed by Mr. Gambhir. As regards point No. (4) the Magistrate has stated that after recording the confession, he had handed over the custody of the accused to the Challani guard i.e. the guard who bring under-trials from the Judicial Lock--up to the Court. The Challani guard was not under the control of the investigating agency. During the preliminary questioning of the appellant, the Magistrate had assured him that in no case-whether he made a confession or not-he would be sent back to Police custody. Accordingly the Magistrate, according to his testimony, did not send the accused back to police custody. Instead, the gave the custody of the appellant to the Challani guard, which means jail or judicial custody. A suggestion was put to Shri K. P. Sriva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d threat. He however. added that "the statement (Ex. P. 27) is false." A perusal of the confessional statement (Ex. P. 27 would show that prima facie there, is nothing improbable or unbelievable in it. It appears to be a spontaneous account, studded with such vivid details about the manner of the commission of the crimes in question, which only the perpetrator of the crimes could know. Now let us compare the statement (Ex. 27) with the rest of the evidence. In Ex. 27 the accused has inter alia stated facts which may be rearranged as under. (1) About midnight he took off his clothes, chappals and tried to climb the wall by the side of the railway line. but could not succeed. Therefore, he climbed the wall through the side. (2) One Kassi was lying there in a comer. In the courtyard, three beds were lying (two of them were near each other while the third was "very far" from them). (3) "I picked up the Kassi and hit with its reverse side one of those persons, on the head. Thereafter, I hit another person. I hit the third person "after running" to him, "as he was sleeping very far." (4) "I then drank water, entered the kitchen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memorandum (Ex. P-8A) and the site-plan (Ex. P-8) the presence of three cots of the victims in the courtyard of the Gurdwara. The dead body of Kartar Singh with head injury was lying of one cot at point No. 2 shown in the site-plan. Wazir Singh lay injured on a cot at a distance of 6 feet from that of Kartar Singh, while Mada Singh was lying injured on a cot 8 feet farther away. The blood-stained Kassi (Art. 1) was lying near the cot of Wazir Singh. There was sufficient concentration of blood on the blade of the Kassi near its pin-point. There was blood underneath all the three cots. These facts observed by A.S.I. Bhagwan Singh and recorded in Ex. P-8 and Ex. P-8A, inferentially lend assurance to what was 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 presence of bare foot-prints in the bath-room and the kitchen (shown at 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 in the vicinity of the courtyard. He h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt to a material discrepancy between the confession and the medical evidence. The fact remains that the medical evidence corroborates the confessional statement inasmuch as it is mentioned herein that the injuries to the victims were caused with a Kassi. The report of the Chemical Examiner and the Serologist shows that human blood was found on the Kassi (Art. 1). That report further confirms the confessional statement with regard to the use of this weapon in assaulting the victims. The courts below have further relied upon the circumstance that a finger-print on the dibbi (Article 2) from which ₹ 400/- in cash, kept by Karnail Singh (P. W. 15) had been stolen by the culprit, was identified as that of the appellant. The prosecution case was that among other articles, this dibbi (tin box) was lying in a room in the yard of the Gurdwara. A.S.I. Bhagwan Singh while inspecting the scene of occurrence on 9-9-73, saw some finger impressions on it. He, therefore, took it into possession and sealed it into a packet, vide seizure memo (Ex. P. 14) in the presence of witnesses. Thereafter, he deposited it with seals intact in the Malkhana of the Police Station, Sadul Sahar, and nobody t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what manner the finger- prints of the accused Shankaria on Art. 2 'dibbi' could be tampered with, has not been argued or suggested' The finger-prints on Art. 2 have. on examination, been found to tally with the specimen finger-prints of the accused. Tampering of fingerprints on Art. 2 would mean that some other finger-prints were super-imposed or substituted. But no other fingerprints could be substituted or super imposed which would resemble and tally with the finger-prints of the accused Shankaria. Accused Shankaria in his 'statement "under Section 342 (343 ?) Cr. P. C. recorded on 14- 6-1974 and 23-6-74 has not categorically stated that his finger-prints were obtained on an article like the iron 'dibbi' Art. 2. In the absence of such a plea by the accused Shankaria, the non-production of some evidence on the part of the prosecution that the finger-prints were kept intact during all this period, loses all its importance........... In view of these circumstances, we have no hesitation in holding that the finger-prints on the iron 'dibbi' Art. 2 could not be tampered with. As a matter of fact, as stated above, the finger-prints could neither be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er impressions on the Dibbi had been tampered with or fabricated. It will bear repetition that the genuineness of the explanatory note (Ex. P-8A) attached to the Site Plan, was not questioned by the defence. The presence 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 the presence of finger-impressions on two sides of this dibbi is mentioned.--was questioned, halfheartedly.. This memo purports to bear the attestations of three witnesses, namely : Mithu Singh (P. W. 9) Shyam Singh (P. W. 3) and Jagger Singh (P. W. 8). The High Court appears to have accepted their evidence with regard to the seizure of this dibbi, without discussion. We will 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 signa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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