PETITIONER: SARWAN SINGH Vs. RESPONDENT: THE STATE OF PUNJAB(with connected appeal) DATE OF JUDGMENT: 10/04/1957 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. JAGANNADHADAS, B. SINHA, BHUVNESHWAR P. CITATION: 1957 AIR 637 1957 SCR 953 ACT: Confession--Procedure--Duty of the Magistrate--Time to be given to accused to decide to make the confession--Corroboration--Approver--Reliability--Test-- Corroboration--Code of Criminal Procedure (Act V of 1898), s.164. HEADNOTE: The appellants and G were convicted of the offence of murder by the Sessions Court on the basis of the evidence of the approver, which it considered reliable, and the confession made by the first appellant which it found to be voluntary and true. The High Court held that the evidence of the approver as against G was very discrepant and. unreliable and set aside his conviction but, nevertheless, confirmed the conviction of the appellants. The appellants appealed to the Supreme Court. It was found (1) that the statement originally made by the approver as against the second appellant was wholly inconsistent and irreconcilable with the evidence given by him in Court and that the High Court did not consider the question as to whether the approver was a reliable witness at all, (2) that the Magistrate who recorded the confession did not fully comply with the procedure to be adopted to ensure that it was voluntary, (3) that the prosecution story as deposed to by the approver was inconsistent with the material statement in the confession, and (4) that the High Court while deciding whether the confession was voluntary assumed that it was true. Held, that the conviction of the appellants must be set aside. The appreciation of an approver's evidence has to satisfy a double test. It must show that be is a reliable witness and that his evidence receives sufficient corroboration. The act of recording confessions under s. 164 of the Code of Criminal Procedure is a solemn one and in discharging his duties under the said section the Magistrate must take care to see that the requirements of sub-s. (3) Of S. 164 are fully satisfied. When an accused person is produced before the Magistrate by the investigating officer, it is of the utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and he must be sent to jail custody and given adequate time to consider whether he should make a confession at all. Ordinarily, he should be given at least 24 hours to decide. Even if a confession is voluntary, it must also be established that it is true and, for that purpose, it is necessary to examine it 123 954 and compare it with the rest of the prosecution evidence and the probabilities of the case. JUDGMENT:
CRIMINAL APPELLATE, JURISDICTION: Criminal Appeals Nos. 22
and 23 of 1957.
Appeals by special leave from the judgment and order dated
August 7, 1956, of the Punjab High Court at Chandigarh in
Criminal Appeals Nos. 253 and 250 of 1956 and Murder
Reference No. 38 of 1956 arising out of the judgment and
order dated May 21, 1956, of the Court of Additional
Sessions Judge at Ludhiana in Trial No. 17 of 1956 and Case
No. 9 of 1956.
Gyan Chand Mathur, for the appellant in Criminal Appeal No.
22 of 1957.
R. L. Kohli, for the appellant in Criminal Appeal No. 23
of 1957.
Gopal Singh and -T. M. Sen, for the respondent in both
the appeals.
1957. April 10. The Judgment of the Court was delivered
by
J. GAJENDRAGADKAR J.-Harbans Singh, Gurdial Singh and
Sarwan Singh were charged in the court of the learned
Additional Sessions Judge -at Ludhiana with having committed
an offence of murder punishable under s. 302 of the Indian
Penal Code. The case against them was that they, along with
Banta Singh, the approver, had intentionally caused the
death of Gurdev Singh by inflicting injuries on his person
with kirpan, toki and dang on November 23, 1955, within the
limits of the village Sohian, police station Jagraon. The
learned trial judge held that the charge framed against all
the three accused had been proved beyond a reasonable doubt.
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
955
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 his plan to get rid of his brother. It appears that
Gurdial Singh himself was on inimical terms with Gurdev
Singh because he was angry with Gurdev Singh for having cut
jokes with his sister. A few days before the commission of
the offence, Harbans Singh and Sarwan Singh were sitting on
a canal bank near their village enjoying their drink when
Banta Singh joined them. He was also asked to partake of
the liquor and was told about the plan to murder Gurdev
Singh. A few days later there was another meeting between
these three men and it was agreed that an attempt should be
made to procure arms for the purpose of carrying out the
plan Rakha was accordingly approached and as a result of
the negotiations he sold a country-made pistol and a cart-
ridge for Rs. 40 to Sarwan Singh. Rakha was also requested
to join the conspiracy. He was however unwilling to respond
and though he did not openly say ‘no’ to the proposal, at
the material time he refused to join the conspirators. On
the day of the offence itself, Sarwan Singh, Gurdial Singh
and Banta Singh went by a bus together and got down near the
road which leads to the village Sohian. Then they proceeded
on foot until they met Harbans Singh near the canal minor.
Harbans Singh then advised his co-conspirators to hide
themselves in the bushes. He then fetched a bottle of
liquor and all the four drank from it, This
956
took them to sunset time, when Harbans Singh left the place
and promised his friends that he would send his brother to
the place where they would lie concealed. He also told them
that he would give a signal as soon as his brother would
approach the place of their concealment by clapping his
hands. In accordance with this plan Harbans Singh
persuaded his brother to go ahead. Sarwan Singh then
coughDed and this raised an apprehension in the mind of
Gurdev Singh that people for him. So he some may be lying
in wait called out to his brother Harbans Singh and said
that he suspected that there were some people there.
Harbans Singh assured him that he would soon join.
Meanwhile, according to plan, the three assailants emerged
from their place of concealment and attacked Gurdev Singh.
Harbans Singh also arrived on the scene and joined them in
the assault. The prosecution case is that Harbans Singh was
armed with a kirpan, Gurdial Singh with a lathi, the
approver Banta Singh with a toki and Sarwan Singh 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
957
reached the spot in the early hours of the next morning and
so the investigation commenced.
It is clear that the police had their own doubts about the
truth of the report made by Harbans Singh from the start and
they suspected that it was Harbans Singh and his friends who
were concerned with the commission of this foul offence.
Sarwan Singh, Gurdial Singh and Banta Singh were arrested on
November 25 and Harbans Singh on November 26. The
investigating officer recovered from the person of Sarwan
Singh a blood-stained shirt and chadar and obtained from
Sarwan Singh’s house a pistol and an empty cartridge on
information given by him from the person of Gurdial Singh a
blood-stained turban was recovered and the information given
by him led to the discovery of a stick or lathi. This lathi
was blood-stained. From Banta Singh’s person a blood-
stained chadar was recovered and the information given by
him led to the discovery of a kirpan and a toki from a well
in which they were thrown after the commission of the
offence. The prosecution also alleges that, on the
information given by Harbans Singh, some blood-stained
clothes were recovered from Gurdev Kaur sister of Gurdial
Singh. It appears that, on November 30, Sarwan Singh
offered to make a confessional statement and the confession
was in fact recorded on the same day. On December 2, Banta
Singh was given pardon and made an approver. That in brief
is the prosecution case.
All the three accused deny any connection with the
commission of the offence. The learned Sessions Judge held
that Banta Singh was a reliable witness. Since Banta Singh
is, however, an approver the learned Judge considered
whether his evidence had received the requisite
corroboration in material particulars and he held that it
did. The learned Judge also found that the confession made
by Sarwan Singh was voluntary and true and in his opinion
the evidence of Rakha and the other circumstantial evidence
with regard to the blood-stained clothes of the respective
accused persons and the recovery of the weapons afforded
sufficient corroboration in material particulars. That is
how he reached the conclusion that the charge of murder has
958
been proved against all the three accused. On appeal it has
been held by the learned Judges of the High Court of Punjab
that the evidence given by the approver, Banta Singh,
against accused Gurdial Singh was very discrepant and
therefore unreliable and so they found that the 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 established
principles of judicial approach, that they can be
characterised as wholly unjustified and even perverse.
On behalf of Harbans Singh, it has been urged. before us
by Mr. Kohli that the judgment of the High Court of Punjab
suffers from a serious infirmity in that, in dealing with
the evidence of the approver, the learned Judges do not
appear to have addressed themselves to the preliminary
question as to whether the approver is a reliable witness or
not. The problem posed by the evidence given by an.
approver has been considered by the Privy Council and courts
in India on several occasions. It is hardly necessary to
deal at length with the true legal position in this matter.
An accomplice is undoubtedly a competent witness under
959
the Indian Evidence Act. There can be, however, no doubt
that the very fact that he has participated in ,the
commission of the offence introduces a serious stain in his
evidence and courts are naturally reluctant to act on such
tainted evidence unless it is corroborated in material
particulars by other independent evidence. It would not be
right to expect that such independent corroboration should
cover the whole of the prosecution story -or even all the
material particulars. If such a view is adopted it would
render the evidence of the accomplice wholly superfluous.
On the other hand, it would not be safe to act upon such
evidence merely because it is corroborated in minor
particulars or incidental details because, in such a case,
corroboration does not afford the necessary assurance that
the main story disclosed by the approver can be reasonably
and safely accepted as true. But it must never be forgotten
that before the court reaches the stage of considering the
question of corroboration and its adequacy or otherwise, the
first initial and essential question to consider is whether
even as an accomplice the approver is a reliable witness.
If the answer to this question is against the approver then
there is an end of the matter, and no question as to whether
his evidence is corroborated or not falls to be considered.
In other words, the appreciation of an approver’s evidence
has to satisfy a double test. His evidence must show that
he is a reliable witness and that is a test which is common
to all witnesses. If this test is satisfied the second test
which still remains to be applied is that the approver’s
evidence must receive 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
960
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 because, as we will presently point out, the
evidence of the approver is so thoroughly discrepant that it
would be difficult to resist the conclusion that the
approver in the present case is a wholly unreliable witness.
Indeed it may be legitimate to point out that the learned
Judges of the High Court have themselves criticised the
evidence of the approver in dealing with the prosecution
case against Gurdial Singh and have ultimately found that
the account given by the approver is unreliable and, though
there was circumstantial evidence which raised an amount of
suspicion against Gurdial Singh, that would not be enough to
sustain his conviction. It seems to us that if it was found
that the approver’s account against one of the accused
persons was wholly discrepant, this finding itself should
inevitably have led the court to scrutinise his evidence in
respect of the other accused persons with greater caution.
Besides, it is somewhat unfortunate that the attention of
the learned Judges of the High Court was presumably not
drawn to the still more serious discrepancies in the
evidence of the approver in regard to the part assigned to
Harbans Singh in the commission of the offence. In the
evidence’ given by the approver before the trial court, he
has definitely and unequivocally implicated Harbans Singh in
the commission of the offence. It has been brought out in
the cross-examination that in the very first statement made
by the approver before the investigating officer on November
25 he had made statements about Harbans Singh which are
wholly inconsistent with the subsequent story. In this
statement, the
961
approver had definitely stated that only the three of them
were concerned with the commission of the offence, himself,
Sarwan Singh and Gurdial Singh. He had also stated clearly
in the said statement that Harbans Singh did not join in
murdering Gurdev Singh. It is remarkable that in regard to
almost every material particular about the part played by
Harbans Singh in the commission of the offence the story
disclosed by the approver at the trial is inconsistent with
his first statement before the police. In his statement at
the trial, the approver assigns Gurdial Singh the possession
of lathi and according to him Gurdial Singh subsequently
took up the kirpan from Sarwan Singh and murdered Gurdev
Singh after which Harbans Singh himself gave a blow with it
at 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 in his subsequent statement may be the
result of promise held out to him that he would be granted
pardon. Apart from this consideration, in view of the
positive statements made by the approver in his first
recorded statement, there can be no doubt
124
962
that the subsequent allegations against Harbans Singh are
improvements and are the result of his decision to involve
Harbans Singh in the commission of the offence. If this was
a case where the statements made by the approver on
subsequent occasions merely added details which were not
included in the first statement, it may perhaps have been a
different matter. It is true that omissions have not always
the same significance as contradictions; but in the present
case it is patent that the two sets of statements are wholly
inconsistent and irreconcilable and that obviously leads to
a very serious infirmity in the character of the witness.
It is indeed to be regretted that the attention of the
learned Judges of the High Court was not drawn to this
aspect of the matter and they were not invited to consider
the initial question as to whether the approver, Banta
Singh, was a reliable witness at all. Every person who is a
competent witness is not a reliable witness and the test of
reliability has to be satisfied by an approver all the more
before the question of corroboration of his evidence is
considered by criminal courts.
If the evidence of the approver is discarded as being
unreliable the case against Harbans Singh must inevitably
fail. No doubt there are some circumstances against him on
which the prosecution relies. The evidence of Rakha (P.W.8)
would show that Harbans Singh and the other accused persons
were concerned with the purchase of a pistol from Rakha.
Incidentally this pistol has not been used in the commission
of the offence at all and that, in the circumstances, it is
difficult to explain. However, the purchase of a pistol
from Rakha may merely raise a suspicion against Harbans
Singh but suspicions, however strong, cannot take the place
of proof. Harbans Singh had injuries on his person and the
conduct of Harbans Singh soon after the commission of the
offence was very suspicious. That again may raise a
suspicion against Harbans Singh but without the basis of the
approver’s evidence the suspicious circumstances can play no
effective part in a criminal trial. The discovery of
clothes alleged to have been made at
963
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 sentence passed against
him must be set aside and he must be acquitted and
discharged.
That takes us to the case of accused No. 3, Sarwan Singh.
We have already pointed out that the order of conviction
passed against Sarwan Singh is in the words of the judgment
of the High Court based on the fact that ” there is the
evidence of the approver and it is corroborated in every
particular by his own confessional statement “. Besides,
there is other circumstantial evidence to which reference
has already been made in narrating the prosecution story at
the beginning of this judgment. It would at once be noticed
that, if we come to the conclusion that the approver is an
unreliable witness, the basis of the evidence of the
approver on which the learned Judges of the High Court
proceeded even while dealing with the case against Sarwan
Singh has been shaken. If, in our opinion, the approver is
unworthy of credit, then it would not be possible to
consider the question
964
of the corroboration that his evidence receives from the
confessional statement made by Sarwan Singh himself. It is,
however, true that Sarwan Singh has made a confession and in
law it would be open to the court to convict him on this
confession itself though he has retracted his confession at
a later stage. Nevertheless usually courts require some
corroboration to the confessional statement before
convicting an accused person on such a statement. What
amount of corroboration would be necessary in such a case
would always be a question of fact to be determined in the
light of the circumstances of each case. In the present
case, the learned Sessions Judge has considered the question
about the voluntary character of the confession made by
Sarwan Singh and has found in favour of the prosecution.
The judgment of the High Court shows that the learned Judges
agreed with the view of the learned trial Judge mainly
because the evidence of the Magistrate who recorded the
confession appeared to the learned Judges to show that the
confession was voluntary. It is this view which is
seriously challenged before us by Mr. Mathur on behalf of
Sarwan Singh. Prima facie whether or not the confession is
voluntary would be a question of fact and we would be
reluctant to interfere with a finding on such a question of
fact unless we are satisfied that the impugned finding has
been reached without applying the true and relevant legal
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
965
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 confessional
statement was recorded. It is true that the Magistrate did
put to the accused the questions prescribed by the circulars
issued by the High Court of Punjab. Even so, when the
learned Magistrate was asked why he did not give more time
to the accused before his confessional statement was
recorded, his reply was frank and honest. He said that the
accused seemed to insist upon making a statement
straightaway. The Police Sub-Inspector who had taken the
accused to the Magistrate was apparently standing in the
verandah outside in the Magistrate’s office. The doors of
the office were closed but the fact still remains that the
Sub-Inspector was standing outside. The evidence of the
Magistrate also shows that, soon after the statement was
finished, the Sub-Inspector went to the Magistrate’s room
again. The person of the accused showed some injuries and.
yet the learned Magistrate did not enquire how the accused
came to be injured. It is in the light of these
circumstances that the question falls to be considered
whether the confession made by the accused can be regarded
as voluntary. It is hardly necessary to emphasize that the
act of recording confessions under s. 164 of the Code of
Criminal Procedure is a very solemn act and, in discharging
his duties under the said section, the Magistrate must take
care to see that the requirements of sub-s. (3) of s. 164
are fully satisfied. It would of course be necessary in
every case to put the questions prescribed by the High Court
circulars but the questions intended to be put under sub –
s. (3) of s. 164 should not be allowed to become a matter of
a mere mechanical enquiry. No element of casualness should
be allowed to creep in and the Magistrate should be fully
satisfied that the confessional statement which the accused
966
wants to make is in fact and in substance voluntary.
Incidentally, we may invite the attention of the High Court
of -Punjab to the fact that the circulars issued by the High
Court of Punjab in the matter of the procedure to be
followed, and questions to be put to the accused, by
Magistrates recording confessions under s. 164 may be
revised and suitable amendments and additions made in the
said circulars in the light of similar circulars issued by
the High Courts of Uttar Pradesh, Bombay and Madras. The
whole object of putting questions to an accused person who
offers to confess is to obtain an assurance 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 impossible to accept the view that enough
time was given to the accused to think over the matter.
Indeed, any Magistrate with enough criminal experience would
have immediately decided to give longer time to Sarwan Singh
in the present case for the obvious reason that Sarwan Singh
appeared to the learned Magistrate to be keen on making a
confession straightaway. The learned Magistrate himself has
fairly stated that he would
967
have given him longer time but for his insistence to make a
confession without delay. This insistence on the part of
Sarwan Singh to make a confession immediately should have
put the learned Magistrate on his guard because it obviously
bore, traces of police pressure or inducement.
Unfortunately, the effect of the failure of the learned
Magistrate to’ grant enough time to the accused to consider
the matter has not been considered by the learned Sessions
Judge and has been wholly ignored by the learned Judges of
the High Court. Besides, in neither court below has any
attention been paid to the fact that Sarwan Singh appeared
to have been kept in police custody without any
justification between November 26 and November 30. We have
carefully considered all the relevant facts bearing on this
question and we see no escape from the conclusion that the
failure of the learned Judges of the High Court to take into
account these material facts has introduced a serious legal
infirmity in their conclusion that the confession made by
Sarwan Singh is voluntary. That is why we think we must
reverse this conclusion.
There is, besides, another fact which is equally fatal to
the. prosecution case. Even if the confession is held to be
voluntary, it must also be established that the confession
is true and for the purpose of dealing with this question it
would be necessary to examine the confession and compare it
with the rest of the prosecution evidence and the
probabilities in the case. In our opinion, some material
points mentioned in the confessional statement are not shown
to be true. Sarwan Singh says that when Gurdev Singh was
assaulted he and his brother Harbans Singh were walking
together. On the other hand the prosecution story is that
Harbans Singh had first contacted his accomplices and had
told them that he would send Gurdev Singh towards the spot
where the accomplices would lie in wait for him. The story
further is that when Gurdev Singh 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
968
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 have been assumed by the learned
Judges that the confession was true and that, in our
opinion, is another infirmity in the conclusion reached by
the High Court.
That leaves the other circumstances which have been proved
against Sarwan Singh to be considered. There were injuries
on his person. They are thus described by the doctor:-
” 1. A superficial incised wound with a scab, 3/8″ x 1/12″
on the left side of the face, just above the left moustache.
2.An abrasion with a scab 1/2″ x 1/4″ on the outer surface
of the middle digit of the left ring finger.
3. An abrasion with a scab 1/8″ x 1/8″ on the outer surface
of the middle digit of the left little finger.
4.An abrasion with a scab 1/4″ x 1/4″ on the outer surface
of the terminal inter-digital joint of the left little
finger.
All the injuries were simple and of about two days duration.
Injury No. 1 was caused by sharpedged weapon and the rest by
some blunt weapon.”
969
In his cross-examination Dr. Singh admitted that injury No.
I could have been caused by razor blade as suggested by the
counsel for Sarwan Singh and injuries Nos. 2 to 4 could have
been caused by rubbing against some hard substance. In
other words, on medical evidence it is difficult to reject
the explanation of the accused as unreasonable or palpably
untrue. Then we have the evidence of blood-stains on the
shirt and chadar worn by Sarwan Singh. If the explanation
given by Sarwan Singh about his injuries is not unreasonable
then the presence of blood-stains on his dress cannot be
seriously pressed against him. The evidence of Rakha about
the negotiations and purchase of a pistol from him and about
the part of Sarwan Singh in that transaction no doubt may
suggest that Sarwan Singh was associated with the criminals
but that is very far from proving the charge of murder
against him. Incidentally, as we have already observed, if
the pistol was purchased it is difficult to understand why
it was not used. Then we have the evidence of the shoes
which were found on the spot. The evidence of the shoe-maker
Santa Singh suggests that he had identified the pair of
shoes as belonging to Sarwan Singh that very night.
According to him, he has been manufacturing shoes like this
pair though not on a large scale’ Unfortunately, in his
examination under s. 342 of the Code, no question had been
put to Sarwan Singh about these shoes. It is not unlikely
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
125
970
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 both the appellants.
Mr. Gopal Singh contended that considered as a whole, the
prosecution story may be true; but between ‘may be true’ and
‘must be true’ there is inevitably a long distance to travel
and the whole of this distance must be covered by legal,
reliable and unimpeachable evidence. We have carefully
considered all the arguments which Mr. Gopal Singh urged
before us; but we do not think it would be possible to
regard the approver as a reliable witness or to hold that
the confession of Sarwan Singh is voluntary or true. In the
result, the appeal preferred by Sarwan Singh must be
allowed, the order of conviction and sentence passed against
him must be set aside and he must be acquitted and
discharged.
Apppeals allowed.