{"id":254372,"date":"1957-04-10T00:00:00","date_gmt":"1957-04-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sarwan-singh-vs-the-state-of-punjabwith-on-10-april-1957"},"modified":"2019-03-21T17:58:27","modified_gmt":"2019-03-21T12:28:27","slug":"sarwan-singh-vs-the-state-of-punjabwith-on-10-april-1957","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sarwan-singh-vs-the-state-of-punjabwith-on-10-april-1957","title":{"rendered":"Sarwan Singh vs The State Of Punjab(With … on 10 April, 1957"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sarwan Singh vs The State Of Punjab(With … on 10 April, 1957<\/div>\n
Equivalent citations: 1957 AIR 637, 1957 SCR 953<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B.<\/div>\n
           PETITIONER:\nSARWAN SINGH\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF PUNJAB(with connected appeal)\n\nDATE OF JUDGMENT:\n10\/04\/1957\n\nBENCH:\nGAJENDRAGADKAR, P.B.\nBENCH:\nGAJENDRAGADKAR, P.B.\nJAGANNADHADAS, B.\nSINHA, BHUVNESHWAR P.\n\nCITATION:\n 1957 AIR  637\t\t  1957 SCR  953\n\n\nACT:\nConfession--Procedure--Duty  of the Magistrate--Time  to  be\ngiven\t to    accused\t  to\tdecide\t  to\tmake\t the\nconfession--Corroboration--Approver--Reliability--Test--\nCorroboration--Code  of Criminal Procedure (Act V of  1898),\ns.164.\n\n\n\nHEADNOTE:\nThe appellants and G were convicted of the offence of murder\nby  the Sessions Court on the basis of the evidence  of\t the\napprover,  which it considered reliable, and the  confession\nmade  by the first appellant which it found to be  voluntary\nand  true.   The High Court held that the  evidence  of\t the\napprover  as against G was very discrepant  and.  unreliable\nand  set aside his conviction but,  nevertheless,  confirmed\nthe  conviction of the appellants.  The appellants  appealed\nto  the Supreme Court.\tIt was found (1) that the  statement\noriginally  made  by  the approver  as\tagainst\t the  second\nappellant  was wholly inconsistent and\tirreconcilable\twith\nthe  evidence given by him in Court and that the High  Court\ndid not consider the question as to whether the approver was\na  reliable  witness  at all, (2) that\tthe  Magistrate\t who\nrecorded  the  confession  did not  fully  comply  with\t the\nprocedure to be adopted to ensure that it was voluntary, (3)\nthat the prosecution story as deposed to by the approver was\ninconsistent with the material statement in the\t confession,\nand  (4)  that\tthe High Court while  deciding\twhether\t the\nconfession was voluntary assumed that it was true.\n Held,\tthat  the conviction of the appellants must  be\t set\naside.\n  The appreciation of an approver's evidence has to  satisfy\na  double test.\t It must show that be is a reliable  witness\nand that his evidence receives sufficient corroboration.\n  The act of recording confessions under s. 164<\/a> of the\tCode\nof Criminal Procedure is a solemn one and in discharging his\nduties under the said section the Magistrate must take\tcare\nto  see\t that the requirements of sub-s. (3) Of S.  164<\/a>\t are\nfully satisfied.\n When an accused person is produced before the Magistrate by\nthe  investigating officer, it is of the  utmost  importance\nthat  the  mind of the accused person should  be  completely\nfreed from any possible influence of the police and he\tmust\nbe sent to jail custody and given adequate time to  consider\nwhether he should make a confession at all.  Ordinarily,  he\nshould be given at least 24 hours to decide.\n Even  if  a  confession  is  voluntary,  it  must  also  be\nestablished  that  it is true and, for that purpose,  it  is\nnecessary to examine it\n123\n954\nand compare it with the rest of the prosecution evidence and\nthe probabilities of the case.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE, JURISDICTION: Criminal Appeals Nos.  22
\nand 23 of 1957.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nAugust\t7, 1956, of the Punjab High Court at  Chandigarh  in
\nCriminal  Appeals  Nos.\t 253  and 250  of  1956\t and  Murder
\nReference  No.\t38 of 1956 arising out of the  judgment\t and
\norder  dated  May  21,\t1956, of  the  Court  of  Additional
\nSessions Judge at Ludhiana in Trial No. 17 of 1956 and\tCase
\nNo. 9 of 1956.\n<\/p>\n
 Gyan Chand Mathur, for the appellant in Criminal Appeal No.
\n22 of 1957.\n<\/p>\n
  R. L.\t Kohli, for the appellant in Criminal Appeal No.  23
\nof 1957.\n<\/p>\n
  Gopal\t Singh and -T.\tM. Sen, for the respondent  in\tboth
\nthe appeals.\n<\/p>\n
  1957.\t April 10.  The Judgment of the Court was  delivered
\nby
\nJ.   GAJENDRAGADKAR  J.-Harbans\t Singh,\t Gurdial  Singh\t and
\nSarwan\tSingh  were  charged in the  court  of\tthe  learned
\nAdditional Sessions Judge -at Ludhiana with having committed
\nan  offence of murder punishable under s. 302<\/a> of the  Indian
\nPenal Code.  The case against them was that they, along with
\nBanta  Singh,  the approver, had  intentionally\t caused\t the
\ndeath  of Gurdev Singh by inflicting injuries on his  person
\nwith kirpan, toki and dang on November 23, 1955, within\t the
\nlimits\tof the village Sohian, police station Jagraon.\t The
\nlearned trial judge held that the charge framed against\t all
\nthe three accused had been proved beyond a reasonable doubt.
\nThat  is  why he convicted them of the offence\tcharged\t and
\nsentenced each one of them to death.  On appeal to the\tHigh
\nCourt  of  Punjab,  the order  of  conviction  and  sentence
\nimposed against Harbans Singh and Sarwan Singh was confirmed
\nwhereas the order of conviction and sentence against Gurdial
\nSingh  was set aside and he was ordered to be acquitted\t and
\ndischarged.  Accused No. 1, Harbans
\n955<\/span>
\nSingh,\tand accused No. 3, Sarwan Singh, have come  to\tthis
\nCourt in appeal by special leave.\n<\/p>\n
 It  would be convenient to state the prosecution case\tvery
\nbriefly\t at  the outset.  Gurdev Singh, the  victim  of\t the
\nassault,  was the brother of accused No. 1. It appears\tthat
\nthe father of the two brothers had left the Ga village\tsome
\nyears ago and is apparently no longer alive.  Harbans  Singh
\nwas  a\tshirker\t and a waster and  that\t made  Gurdev  Singh
\nimpatient.   When  Gurdev  Singh tried\tto  improve  Harbans
\nSingh, Harbans Singh resented Gurdev Singh’s efforts and his
\nirritation and annoyance had reached such a stage and extent
\nthat he began to plan his murder.  According to the story of
\nthe prosecution, Harbans Singh got in touch with his friends
\nSarwan Singh and Gurdial Singh and requested them to  assist
\nhim in his plan to get rid of his brother.  It appears\tthat
\nGurdial\t Singh\thimself was on inimical\t terms\twith  Gurdev
\nSingh because he was angry with Gurdev Singh for having\t cut
\njokes with his sister.\tA few days before the commission  of
\nthe offence, Harbans Singh and Sarwan Singh were sitting  on
\na  canal bank near their village enjoying their\t drink\twhen
\nBanta  Singh joined them.  He was also asked to\t partake  of
\nthe  liquor  and was told about the plan  to  murder  Gurdev
\nSingh.\t A few days later there was another meeting  between
\nthese three men and it was agreed that an attempt should  be
\nmade  to  procure arms for the purpose of carrying  out\t the
\nplan   Rakha was accordingly approached and as a  result  of
\nthe  negotiations he sold a country-made pistol and a  cart-
\nridge for Rs. 40 to Sarwan Singh.  Rakha was also  requested
\nto join the conspiracy.\t He was however unwilling to respond
\nand  though he did not openly say ‘no’ to the  proposal,  at
\nthe  material time he refused to join the conspirators.\t  On
\nthe  day of the offence itself, Sarwan Singh, Gurdial  Singh
\nand Banta Singh went by a bus together and got down near the
\nroad which leads to the village Sohian.\t Then they proceeded
\non  foot until they met Harbans Singh near the canal  minor.
\nHarbans\t Singh\tthen  advised his  co-conspirators  to\thide
\nthemselves  in\tthe  bushes.  He then fetched  a  bottle  of
\nliquor and all the four drank from it, This
\n956<\/span>
\ntook them to sunset time, when Harbans Singh left the  place
\nand  promised his friends that he would send his brother  to
\nthe place where they would lie concealed.  He also told them
\nthat  he  would give a signal as soon as his  brother  would
\napproach  the  place of their concealment  by  clapping\t his
\nhands.\t  In  accordance  with\t this  plan  Harbans   Singh
\npersuaded  his\tbrother\t to go\tahead.\t Sarwan\t Singh\tthen
\ncoughDed  and  this raised an apprehension in  the  mind  of
\nGurdev\tSingh that people for him.  So he some may be  lying
\nin  wait  called out to his brother Harbans Singh  and\tsaid
\nthat  he  suspected  that  there  were\tsome  people  there.
\nHarbans\t  Singh\t assured  him  that  he\t would\tsoon   join.
\nMeanwhile,  according to plan, the three assailants  emerged
\nfrom  their place of concealment and attacked Gurdev  Singh.
\nHarbans\t Singh also arrived on the scene and joined them  in
\nthe assault.  The prosecution case is that Harbans Singh was
\narmed  with  a\tkirpan,\t Gurdial Singh\twith  a\t lathi,\t the
\napprover  Banta\t Singh with a toki and Sarwan Singh  used  a
\nkirpan.\t  The attack was undoubtedly brutal and callous\t and
\nit resulted in as many as 69 incised wounds and two contused
\ninjuries which had been caused with a blunt weapon.   Having
\nassaulted (Gurdev Singh in this brutal manner his assailants
\nran away.\n<\/p>\n
Harbans\t Singh returned to his village and raised a hue\t and
\ncry.   He complained that his brother had been carried\taway
\nby  a number of persons and he pretended that his  brother’s
\nassailants were Darshan Singh, Jagat Singh, Gurnam Singh and
\nBanta  Singh of the village Pona.  The villagers-,  however,
\nfound  that  Harbans Singh was not keen on joining  them  in
\nrendering help to the victim or in pursuing his\t assailants.
\nFinally,   however,  he\t was  persuaded\t to  accompany\t the
\nvillagers and the villagers in the company of Harbans  Singh
\nreached\t the stop where Gurdev Singh’s body was found  in  a
\npool  of blood. Thereafter Harbans Singh went to the  police
\nstation\t and made a report of the occurrence at about  10-30
\np.m.  He  alleged in his report that his  brother  had\tbeen
\nmurdered  by  the aforesaid four persons of the\t village  of
\nPona.  Purporting to act on this report, the police
\n957<\/span>
\nreached the spot in the early hours of the next morning\t and
\nso the investigation commenced.\n<\/p>\n
 It is clear that the police had their own doubts about\t the
\ntruth of the report made by Harbans Singh from the start and
\nthey suspected that it was Harbans Singh and his friends who
\nwere  concerned\t with the commission of this  foul  offence.
\nSarwan Singh, Gurdial Singh and Banta Singh were arrested on
\nNovember   25  and  Harbans  Singh  on\tNovember  26.\t The
\ninvestigating  officer recovered from the person  of  Sarwan
\nSingh  a  blood-stained shirt and chadar and  obtained\tfrom
\nSarwan\tSingh’s\t house a pistol and an\tempty  cartridge  on
\ninformation given by him from the person of Gurdial Singh  a
\nblood-stained turban was recovered and the information given
\nby him led to the discovery of a stick or lathi.  This lathi
\nwas  blood-stained.   From  Banta Singh’s  person  a  blood-
\nstained\t chadar was recovered and the information  given  by
\nhim led to the discovery of a kirpan and a toki from a\twell
\nin  which  they\t were thrown after  the\t commission  of\t the
\noffence.    The\t prosecution  also  alleges  that,  on\t the
\ninformation  given  by\tHarbans\t Singh,\t some  blood-stained
\nclothes\t were recovered from Gurdev Kaur sister\t of  Gurdial
\nSingh.\t It  appears  that, on\tNovember  30,  Sarwan  Singh
\noffered to make a confessional statement and the  confession
\nwas in fact recorded on the same day.  On December 2,  Banta
\nSingh was given pardon and made an approver.  That in  brief
\nis the prosecution case.\n<\/p>\n
  All  the  three  accused  deny  any  connection  with\t the
\ncommission of the offence.  The learned Sessions Judge\theld
\nthat Banta Singh was a reliable witness.  Since Banta  Singh
\nis,  however,  an  approver  the  learned  Judge  considered
\nwhether\t  his\tevidence   had\t received   the\t   requisite
\ncorroboration  in material particulars and he held  that  it
\ndid.  The learned Judge also found that the confession\tmade
\nby  Sarwan Singh was voluntary and true and in\this  opinion
\nthe evidence of Rakha and the other circumstantial  evidence
\nwith  regard to the blood-stained clothes of the  respective
\naccused\t persons  and the recovery of the  weapons  afforded
\nsufficient  corroboration in material particulars.  That  is
\nhow he reached the conclusion that the charge of murder has
\n958<\/span>
\nbeen proved against all the three accused.  On appeal it has
\nbeen held by the learned Judges of the High Court of  Punjab
\nthat  the  evidence  given by  the  approver,  Banta  Singh,
\nagainst\t accused  Gurdial  Singh  was  very  discrepant\t and
\ntherefore unreliable and so they found that the case against
\nGurdial\t Singh\thad   not been proved  beyond  a  reasonable
\ndoubt.\t In the result Gurdial Singh was acquitted; but\t the
\nview  taken  by\t the  learned  Judges  in  respect  of\t the
\nprosecution case against Harbans Singh and Sarwan Singh\t was
\nthat  the  approver’s evidence supplied the  basis  for\t the
\nprosecution case against them and since it was\tcorroborated
\nby  circumstantial evidence to which reference\thas  already
\nbeen  made and by the confession of Sarwan Singh, there\t was
\nno  difficulty\tin confirming the order\t of  conviction\t and
\nsentence  passed against these two accused persons.   It  is
\nthis  view  which  is  challenged  before  us  by  the\t two
\nappellants in the present appeals.\n<\/p>\n
  Since the present appeals have been filed by special leave
\nunder Art. 136<\/a> of the Constitution, it would normally not be
\nopen to the appellants to raise questions of fact before us.
\nPrima  facie  the orders of conviction and  sentence  passed
\nagainst\t the appellants are based on concurrent findings  of
\nfact  and we would be slow to interfere with  such  findings
\nunless we are satisfied that the said findings are  vitiated
\nby  errors  of law or that the conclusions  reached  by\t the
\ncourts\tbelow  are so patently opposed to  well\t established
\nprinciples   of\t  judicial  approach,  that  they   can\t  be
\ncharacterised as wholly unjustified and even perverse.
\n  On  behalf of Harbans Singh, it has been urged. before  us
\nby  Mr. Kohli that the judgment of the High Court of  Punjab
\nsuffers\t from a serious infirmity in that, in  dealing\twith
\nthe  evidence  of the approver, the learned  Judges  do\t not
\nappear\tto  have  addressed themselves\tto  the\t preliminary
\nquestion as to whether the approver is a reliable witness or
\nnot.   The  problem  posed  by the  evidence  given  by\t an.
\napprover has been considered by the Privy Council and courts
\nin  India on several occasions.\t It is hardly  necessary  to
\ndeal at length with the true legal position in this  matter.
\nAn accomplice is undoubtedly a competent witness under
\n959<\/span>
\nthe  Indian Evidence Act<\/a>.  There can be, however,  no  doubt
\nthat  the  very\t fact  that  he\t has  participated  in\t,the
\ncommission of the offence introduces a serious stain in\t his
\nevidence  and courts are naturally reluctant to act on\tsuch
\ntainted\t evidence  unless  it is  corroborated\tin  material
\nparticulars by other independent evidence.  It would not  be
\nright to expect that such independent\tcorroboration should
\ncover  the whole of the prosecution story -or even  all\t the
\nmaterial  particulars.\tIf such a view is adopted  it  would
\nrender\tthe evidence of the accomplice\twholly\tsuperfluous.
\nOn  the\t other hand, it would not be safe to act  upon\tsuch
\nevidence   merely  because  it\tis  corroborated  in   minor
\nparticulars  or incidental details because, in such a  case,
\ncorroboration  does not afford the necessary assurance\tthat
\nthe  main story disclosed by the approver can be  reasonably
\nand safely accepted as true.  But it must never be forgotten
\nthat  before the court reaches the stage of considering\t the
\nquestion of corroboration and its adequacy or otherwise, the
\nfirst initial and essential question to consider is  whether
\neven  as an accomplice the approver is a  reliable  witness.
\nIf the answer to this question is against the approver\tthen
\nthere is an end of the matter, and no question as to whether
\nhis evidence is corroborated or not falls to be\t considered.
\nIn  other words, the appreciation of an approver’s  evidence
\nhas  to satisfy a double test.\tHis evidence must show\tthat
\nhe is a reliable witness and that is a test which is  common
\nto all witnesses.  If this test is satisfied the second test
\nwhich  still  remains to be applied is that  the  approver’s
\nevidence  must receive sufficient corroboration.  This\ttest
\nis  special  to the cases of weak or tainted  evidence\tlike
\nthat of the approver.  Mr. Kohli’s contention is that  since
\nthe  learned Judges of the High Court of Punjab have  failed
\nto  address  themselves\t to  this  initial  question,  their
\nappreciation  of  the  approver’s evidence  suffers  from  a
\nserious infirmity.  In our opinion, this contention is well-
\nfounded.   We have carefully read the judgment delivered  by
\nthe High Court but we find no indication in the whole of the
\njudgment that the learned Judges considered the character of
\nthe approver’s evidence and reached the
\n960<\/span>
\nconclusion  that  it was the evidence given  by\t a  reliable
\nwitness.   The only statement which we find in the  judgment
\ndealing with this topic is that ” since the main evidence in
\nthe  case  consists of the testimony of the approver  it  is
\nnecessary to consider the case of each J.    appellant
\nindividually.\t” With respect, this observation is open  to
\nthe criticism which has been made against it by Mr. Kohli.
\nThe  argument that the character of the approver’s  evidence
\nhas  not  been\tconsidered  by\tthe  High  Court  cannot  be
\ncharacterised  as  merely  academic or\ttheoretical  in\t the
\npresent\t case because, as we will presently point  out,\t the
\nevidence of the approver is so thoroughly discrepant that it
\nwould  be  difficult  to  resist  the  conclusion  that\t the
\napprover in the present case is a wholly unreliable witness.
\nIndeed\tit may be legitimate to point out that\tthe  learned
\nJudges\tof  the High Court have\t themselves  criticised\t the
\nevidence  of  the approver in dealing with  the\t prosecution
\ncase  against Gurdial Singh and have ultimately\t found\tthat
\nthe account given by the approver is unreliable and,  though
\nthere was circumstantial evidence which raised an amount  of
\nsuspicion against Gurdial Singh, that would not be enough to
\nsustain his conviction.\t It seems to us that if it was found
\nthat  the  approver’s  account against one  of\tthe  accused
\npersons\t was wholly discrepant, this finding  itself  should
\ninevitably have led the court to scrutinise his evidence  in
\nrespect\t of the other accused persons with greater  caution.
\nBesides,  it is somewhat unfortunate that the  attention  of
\nthe  learned  Judges of the High Court\twas  presumably\t not
\ndrawn  to  the\tstill  more  serious  discrepancies  in\t the
\nevidence  of the approver in regard to the part assigned  to
\nHarbans\t Singh\tin the commission of the  offence.   In\t the
\nevidence’  given by the approver before the trial court,  he
\nhas definitely and unequivocally implicated Harbans Singh in
\nthe  commission of the offence.\t It has been brought out  in
\nthe cross-examination that in the very first statement\tmade
\nby the approver before the investigating officer on November
\n25  he\thad made statements about Harbans  Singh  which\t are
\nwholly\tinconsistent  with the subsequent  story.   In\tthis
\nstatement, the
\n961<\/span>
\napprover  had definitely stated that only the three of\tthem
\nwere concerned with the commission of the offence,  himself,
\nSarwan Singh and Gurdial Singh.\t He had also stated  clearly
\nin  the\t said statement that Harbans Singh did not  join  in
\nmurdering Gurdev Singh.\t It is remarkable that in regard  to
\nalmost\tevery material particular about the part  played  by
\nHarbans\t Singh\tin the commission of the offence  the  story
\ndisclosed by the approver at the trial is inconsistent\twith
\nhis first statement before the police.\tIn his statement  at
\nthe trial, the approver assigns Gurdial Singh the possession
\nof  lathi  and according to him Gurdial\t Singh\tsubsequently
\ntook  up  the kirpan from Sarwan Singh and  murdered  Gurdev
\nSingh after which Harbans Singh himself gave a blow with  it
\nat  the\t neck of the victim.  In his  statement\t before\t the
\npolice, the approver had said that Gurdial Singh had carried
\na kirpan.  We are deliberately not referring to the  several
\nother minor discrepancies which have been brought out in the
\nevidence  of the approver in his cross-examination.  In\t our
\nopinion,  the discrepancies brought out in the\tevidence  of
\nthe approver qua the prosecution case against Gurdial  Singh
\ncoupled with the more serious discrepancies in his  evidence
\nin  the prosecution case against Harbans Singh lead to\tonly
\none  conclusion and that is that the approver has no  regard
\nfor truth.  It is true that in his second statement recorded
\non November 29, the approver substantially changed his first
\nstory  and involved Harbans Singh in the commission  of\t the
\noffence, and in that sense, his second statement can be said
\nto  be\tconsistent with his evidence at the trial.   But  we
\ncannot lose sight of the fact that, within three days  after
\nthe recording of his second statement, he was granted pardon
\nand  his statement was recorded under s. 164<\/a> of the Code  of
\nCriminal  Procedure on the same day.  Therefore it would  be
\nlegitimate  for\t the accused to contend that  the  additions
\nmade by the approver in his subsequent statement may be\t the
\nresult\tof promise held out to him that he would be  granted
\npardon.\t  Apart\t from  this consideration, in  view  of\t the
\npositive  statements  made  by the  approver  in  his  first
\nrecorded statement, there can be no doubt
\n124<\/span>
\n962<\/span>
\nthat  the subsequent allegations against Harbans  Singh\t are
\nimprovements  and are the result of his decision to  involve
\nHarbans Singh in the commission of the offence.\t If this was
\na  case\t where\tthe  statements\t made  by  the\tapprover  on
\nsubsequent  occasions  merely added details which  were\t not
\nincluded in the first statement, it may perhaps have been  a
\ndifferent matter.  It is true that omissions have not always
\nthe same significance as contradictions; but in the  present
\ncase it is patent that the two sets of statements are wholly
\ninconsistent and irreconcilable and that obviously leads  to
\na  very serious infirmity in the character of  the  witness.
\nIt  is\tindeed\tto be regretted that the  attention  of\t the
\nlearned\t Judges\t of  the High Court was not  drawn  to\tthis
\naspect\tof the matter and they were not invited to  consider
\nthe  initial  question\tas to whether  the  approver,  Banta
\nSingh, was a reliable witness at all.  Every person who is a
\ncompetent witness is not a reliable witness and the test  of
\nreliability has to be satisfied by an approver all the\tmore
\nbefore\tthe  question of corroboration of  his\tevidence  is
\nconsidered by criminal courts.\n<\/p>\n
 If  the  evidence  of the approver is\tdiscarded  as  being
\nunreliable  the case against Harbans Singh  must  inevitably
\nfail.  No doubt there are some circumstances against him  on
\nwhich the prosecution relies.  The evidence of Rakha (P.W.8)
\nwould show that Harbans Singh and the other accused  persons
\nwere  concerned\t with the purchase of a pistol\tfrom  Rakha.
\nIncidentally this pistol has not been used in the commission
\nof the offence at all and that, in the circumstances, it  is
\ndifficult  to  explain.\t However, the purchase of  a  pistol
\nfrom  Rakha  may merely raise a\t suspicion  against  Harbans
\nSingh but suspicions, however strong, cannot take the  place
\nof proof.  Harbans Singh had injuries on his person and\t the
\nconduct\t of Harbans Singh soon after the commission  of\t the
\noffence\t was  very  suspicious.\t  That\tagain  may  raise  a
\nsuspicion against Harbans Singh but without the basis of the
\napprover’s evidence the suspicious circumstances can play no
\neffective  part\t in  a criminal\t trial.\t  The  discovery  of
\nclothes alleged to have been made at
\n963<\/span>
\nthe  place  of Gurdev Kaur cannot be  pressed  into  service
\nagainst\t Harbans Singh because Gurdev Kaur herself  has\t not
\nbeen examined and the importance of the recovery of a kirpan
\nand  a\tred  scabbard  from the\t spot  cannot  obviously  be
\nexaggerated.   In  our opinion, there is no  doubt  whatever
\nthat, if the approver’s evidence is rejected as\t unreliable,
\nthe  other evidence on which the prosecution relied  against
\nHarbans Singh cannot possibly sustain his conviction of\t the
\noffence\t of  murder.   We must,\t therefore,  hold  that\t the
\nfinding\t of  the learned Judges of the High Court  that\t the
\noffence\t of murder has been proved against Harbans Singh  is
\nvitiated  by  a\t serious infirmity to  which  we  have\tjust
\nreferred  and must be reversed.\t If the learned Judges\thave
\nfailed to address themselves to the initial question of\t law
\nbefore\tdealing with the merits of the approver and  if,  in
\ndealing\t with  his evidence, they have failed to  take\tinto
\naccount\t the  glaring  and obvious  inconsistencies  in\t the
\naccount\t given by the approver, it is open to the  appellant
\nto  challenge  the  validity of their  conclusion.   In\t the
\nresult,\t the  appeal  preferred by  Harbans  Singh  must  be
\nallowed, the order of conviction and sentence passed against
\nhim  must  be  set  aside  and\the  must  be  acquitted\t and
\ndischarged.\n<\/p>\n
 That  takes us to the case of accused No. 3, Sarwan  Singh.
\nWe  have  already pointed out that the order  of  conviction
\npassed against Sarwan Singh is in the words of the  judgment
\nof  the\t High Court based on the fact that ”  there  is\t the
\nevidence  of  the approver and it is corroborated  in  every
\nparticular  by\this own confessional statement\t“.  Besides,
\nthere  is other circumstantial evidence to  which  reference
\nhas already been made in narrating the prosecution story  at
\nthe beginning of this judgment.\t It would at once be noticed
\nthat,  if we come to the conclusion that the approver is  an
\nunreliable  witness,  the  basis  of  the  evidence  of\t the
\napprover  on  which  the learned Judges of  the\t High  Court
\nproceeded  even while dealing with the case  against  Sarwan
\nSingh has been shaken.\tIf, in our opinion, the approver  is
\nunworthy  of  credit,  then  it would  not  be\tpossible  to
\nconsider the question
\n964<\/span>
\nof  the\t corroboration that his evidence receives  from\t the
\nconfessional statement made by Sarwan Singh himself.  It is,
\nhowever, true that Sarwan Singh has made a confession and in
\nlaw  it\t would be open to the court to convict him  on\tthis
\nconfession itself though he has retracted his confession  at
\na  later  stage.  Nevertheless usually courts  require\tsome
\ncorroboration\tto   the   confessional\t  statement   before
\nconvicting  an\taccused person on such\ta  statement.\tWhat
\namount\tof corroboration would be necessary in such  a\tcase
\nwould  always be a question of fact to be determined in\t the
\nlight  of  the circumstances of each case.  In\tthe  present
\ncase, the learned Sessions Judge has considered the question
\nabout  the  voluntary character of the\tconfession  made  by
\nSarwan\tSingh  and has found in favour of  the\tprosecution.
\nThe judgment of the High Court shows that the learned Judges
\nagreed\twith  the  view of the learned\ttrial  Judge  mainly
\nbecause\t the  evidence of the Magistrate  who  recorded\t the
\nconfession  appeared to the learned Judges to show that\t the
\nconfession  was\t voluntary.   It  is  this  view  which\t  is
\nseriously  challenged before us by Mr. Mathur on  behalf  of
\nSarwan Singh.  Prima facie whether or not the confession  is
\nvoluntary  would  be  a question of fact  and  we  would  be
\nreluctant to interfere with a finding on such a question  of
\nfact  unless we are satisfied that the impugned finding\t has
\nbeen  reached without applying the true and  relevant  legal
\ntests  in the matter.  As in the case of the evidence  given
\nby  the\t approver, so too unfortunately in the case  of\t the
\nconfession  of\tSarwan Singh the attention  of\tthe  learned
\nJudges\tbelow  does not appear to have been  drawn  to\tsome
\nsalient and grave features which have a material bearing  on
\nthe   question\t about\tthe  voluntary\tcharacter   of\t the
\nconfession.  Sarwan Singh was arrested on November 25.\t His
\nclothes\t were found blood-stained and he is alleged to\thave
\nbeen  inclined\tto  help  the  prosecution  by\tmaking\t the
\nstatement  which  led  to  the\tdiscovery  of  incriminating
\narticles.   All\t this happened on the 25th itself  and\tyet,
\nwithout any ostensible explanation or justification,  Sarwan
\nSingh was kept in police custody until November 30.  That is
\none fact
\n965<\/span>
\nwhich  is to be borne in mind in dealing with the  voluntary
\ncharacter  of his confession.  What happened on November  30
\nis  still more significant.  On this day he was sent to\t the
\nMagistrate  to\trecord\this  confessional  statement.\t The
\nevidence of the Magistrate Mr. Grover shows that the accused
\nwas  produced  before him at about 2-30 p.m.  He  was  given
\nabout  half-an-hour to( think about the statement  which  he
\nwas  going  to\tmake and soon  thereafter  the\tconfessional
\nstatement was recorded.\t It is true that the Magistrate\t did
\nput to the accused the questions prescribed by the circulars
\nissued\tby  the\t High Court of Punjab.\tEven  so,  when\t the
\nlearned\t Magistrate was asked why he did not give more\ttime
\nto  the\t accused  before  his  confessional  statement\t was
\nrecorded, his reply was frank and honest.  He said that\t the
\naccused\t  seemed   to  insist  upon   making   a   statement
\nstraightaway.\tThe Police Sub-Inspector who had  taken\t the
\naccused\t to  the Magistrate was apparently standing  in\t the
\nverandah  outside in the Magistrate’s office.  The doors  of
\nthe  office were closed but the fact still remains that\t the
\nSub-Inspector  was  standing outside.  The evidence  of\t the
\nMagistrate  also  shows that, soon after the  statement\t was
\nfinished,  the Sub-Inspector went to the  Magistrate’s\troom
\nagain.\tThe person of the accused showed some injuries\tand.
\nyet  the learned Magistrate did not enquire how the  accused
\ncame   to  be  injured.\t  It  is  in  the  light  of   these
\ncircumstances  that  the  question falls  to  be  considered
\nwhether\t the confession made by the accused can be  regarded
\nas voluntary.  It is hardly necessary to emphasize that\t the
\nact  of\t recording confessions under s. 164<\/a> of the  Code  of
\nCriminal Procedure is a very solemn act and, in\t discharging
\nhis duties under the said section, the Magistrate must\ttake
\ncare  to see that the requirements of sub-s. (3) of  s.\t 164<\/a>
\nare  fully  satisfied.\tIt would of course be  necessary  in
\nevery case to put the questions prescribed by the High Court
\ncirculars  but the questions intended to be put under sub  –
\ns. (3) of s. 164<\/a> should not be allowed to become a matter of
\na mere mechanical enquiry.  No element of casualness  should
\nbe  allowed to creep in and the Magistrate should  be  fully
\nsatisfied that the confessional statement which the accused
\n966<\/span>
\nwants  to  make\t is  in fact  and  in  substance  voluntary.
\nIncidentally, we may invite the attention of the High  Court
\nof -Punjab to the fact that the circulars issued by the High
\nCourt  of  Punjab  in  the matter of  the  procedure  to  be
\nfollowed,  and\tquestions  to  be put  to  the\taccused,  by
\nMagistrates  recording\tconfessions  under  s.\t164<\/a>  may  be
\nrevised\t and suitable amendments and additions made  in\t the
\nsaid  circulars in the light of similar circulars issued  by
\nthe  High Courts of Uttar Pradesh, Bombay and  Madras.\t The
\nwhole  object of putting questions to an accused person\t who
\noffers to confess is to obtain an assurance of the fact that
\nthe  confession is not caused by any inducement,  threat  or
\npromise\t having reference to the charge against the  accused
\nperson\tas  mentioned in s. 24<\/a> of the Indian  Evidence\tAct.
\nThere  can  be\tno doubt that, when  an\t accused  person  is
\nproduced before the Magistrate by the investigating officer,
\nit  is\tof utmost importance that the mind  of\tthe  accused
\nperson\t should\t be  completely\t freed\tfrom  any   possible
\ninfluence  of the police and the effective way\tof  securing
\nsuch freedom from fear to the accused person is to send\t him
\nto  jail  custody  and give him adequate  time\tto  consider
\nwhether\t he  should  make a confession\tat  all.   It  would
\nnaturally be difficult to lay down any hard and fast rule as
\nto the time which should be allowed to an accused person  in
\nany  given case.  However, speaking generally, it would,  we
\nthink, be reasonable to insist upon giving an accused person
\nat least 24 hours to decide whether or not he should make  a
\nconfession.   Where there may be reason to suspect that\t the
\naccused has been persuaded or coerced to make a\t confession,
\neven  longer period may have to be given to him\t before\t his
\nstatement is recorded.\tIn our opinion, in the circumstances
\nof this case it is impossible to accept the view that enough
\ntime  was  given to the accused to think  over\tthe  matter.
\nIndeed, any Magistrate with enough criminal experience would
\nhave immediately decided to give longer time to Sarwan Singh
\nin the present case for the obvious reason that Sarwan Singh
\nappeared  to the learned Magistrate to be keen on  making  a
\nconfession straightaway.  The learned Magistrate himself has
\nfairly stated that he would
\n967<\/span>
\nhave given him longer time but for his insistence to make  a
\nconfession  without delay.  This insistence on the  part  of
\nSarwan\tSingh to make a confession immediately\tshould\thave
\nput the learned Magistrate on his guard because it obviously
\nbore,\t traces\t  of   police\tpressure   or\t inducement.
\nUnfortunately,\tthe  effect of the failure  of\tthe  learned
\nMagistrate to’ grant enough time to the accused to  consider
\nthe  matter has not been considered by the learned  Sessions
\nJudge  and has been wholly ignored by the learned Judges  of
\nthe  High  Court.  Besides, in neither court below  has\t any
\nattention  been paid to the fact that Sarwan Singh  appeared
\nto   have   been  kept\tin  police   custody   without\t any
\njustification between November 26 and November 30.  We\thave
\ncarefully considered all the relevant facts bearing on\tthis
\nquestion  and we see no escape from the conclusion that\t the
\nfailure of the learned Judges of the High Court to take into
\naccount these material facts has introduced a serious  legal
\ninfirmity  in their conclusion that the confession  made  by
\nSarwan\tSingh  is voluntary.  That is why we think  we\tmust
\nreverse this conclusion.\n<\/p>\n
There  is, besides, another fact which is equally  fatal  to
\nthe. prosecution case.\tEven if the confession is held to be
\nvoluntary,  it must also be established that the  confession
\nis true and for the purpose of dealing with this question it
\nwould be necessary to examine the confession and compare  it
\nwith   the  rest  of  the  prosecution\tevidence   and\t the
\nprobabilities  in the case.  In our opinion,  some  material
\npoints mentioned in the confessional statement are not shown
\nto  be true.  Sarwan Singh says that when Gurdev  Singh\t was
\nassaulted  he  and his brother Harbans\tSingh  were  walking
\ntogether.   On the other hand the prosecution story is\tthat
\nHarbans\t Singh had first contacted his accomplices  and\t had
\ntold  them that he would send Gurdev Singh towards the\tspot
\nwhere the accomplices would lie in wait for him.  The  story
\nfurther is that when Gurdev Singh suspected that there\twere
\nsome  people  near  about he shouted to\t Harbans  Singh\t and
\nbefore\tHarbans\t Singh came on the spot assault\t had  begun.
\nThis part of the prosecution story as deposed to by the
\n968<\/span>
\napprover is inconsistent with the material statement in\t the
\nconfession.  According to the confession, Dial Singh gave  a
\nDang blow to Gurdev Singh on the head from the front.\tThis
\nstatement is not borne out by medical evidence.\t There\tdoes
\nnot  appear to be a corresponding injury on the head of\t the
\nvictim.\t Sarwan Singh says that he took the kirpan which was
\nfirst  used  by Harbans Singh and gave two blows  to  Gurdev
\nSingh  on his thigh.  This statement again is not borne\t out
\nby  the medical evidence -about the injuries on the body  of
\nthe  victim.  Similarly, the statement of Sarwan Singh\tthat
\nthe  handle of the kirpan was broken and he got\t his  finger
\ninjured with it is not easily reconcilable with the  medical
\nevidence  about\t the  injury  itself.\tUnfortunately  these
\ndiscrepancies  between\tthe confessional statement  and\t the
\nmain  prosecution  evidence given by the approver  have\t not
\nbeen  noticed  by  the learned Judges  of  the\tHigh  Court.
\nIndeed,\t  after\t having\t found\tthat  the   confession\t was
\nvoluntary,it  appears  to have been assumed by\tthe  learned
\nJudges\tthat  the  confession  was true\t and  that,  in\t our
\nopinion,  is another infirmity in the conclusion reached  by
\nthe High Court.\n<\/p>\n
  That leaves the other circumstances which have been proved
\nagainst Sarwan Singh to be considered.\tThere were  injuries
\non his person.\tThey are thus described by the doctor:-
\n”  1. A superficial incised wound with a scab, 3\/8″ x  1\/12″
\non the left side of the face, just above the left moustache.\n<\/p>\n
 2.An abrasion with a scab 1\/2″ x 1\/4″ on the outer  surface
\nof the middle digit of the left ring finger.\n<\/p>\n
 3. An abrasion with a scab 1\/8″ x 1\/8″ on the outer surface
\nof the middle digit of the left little finger.\n<\/p>\n
4.An  abrasion with a scab 1\/4″ x 1\/4″ on the outer  surface
\nof  the\t terminal  inter-digital joint of  the\tleft  little
\nfinger.\n<\/p>\n
All the injuries were simple and of about two days duration.
\nInjury No. 1 was caused by sharpedged weapon and the rest by
\nsome blunt weapon.”\n<\/p>\n
969<\/span><\/p>\n
In his cross-examination Dr. Singh admitted that injury\t No.
\nI could have been caused by razor blade as suggested by\t the
\ncounsel for Sarwan Singh and injuries Nos. 2 to 4 could have
\nbeen  caused  by rubbing against some  hard  substance.\t  In
\nother  words, on medical evidence it is difficult to  reject
\nthe  explanation of the accused as unreasonable or  palpably
\nuntrue.\t  Then we have the evidence of blood-stains  on\t the
\nshirt  and chadar worn by Sarwan Singh.\t If the\t explanation
\ngiven by Sarwan Singh about his injuries is not unreasonable
\nthen  the  presence of blood-stains on his dress  cannot  be
\nseriously pressed against him.\tThe evidence of Rakha  about
\nthe negotiations and purchase of a pistol from him and about
\nthe  part of Sarwan Singh in that transaction no  doubt\t may
\nsuggest that Sarwan Singh was associated with the  criminals
\nbut  that  is  very far from proving the  charge  of  murder
\nagainst him.   Incidentally, as we have already observed, if
\nthe  pistol was purchased it is difficult to understand\t why
\nit  was\t not used.  Then we have the evidence of  the  shoes
\nwhich were found on the spot. The evidence of the shoe-maker
\nSanta  Singh  suggests that he had identified  the  pair  of
\nshoes  as  belonging  to  Sarwan  Singh\t that  very   night.
\nAccording to him, he has been manufacturing shoes like\tthis
\npair  though  not on a large scale’  Unfortunately,  in\t his
\nexamination  under s. 342<\/a> of the Code, no question had\tbeen
\nput  to Sarwan Singh about these shoes.\t It is not  unlikely
\nthat  Sarwan Singh may have offered to demonstrate that\t the
\nshoes  did not fit in with his feet.  In any event,  failure
\nto  give him an opportunity to explain the circumstances  by
\nputting\t an  appropriate  question  to\thim  under  s.\t 342<\/a>
\njustifies his argument that this circumstance should not  be
\nused  against  him.   Besides, like the\t evidence  given  by
\nRakha, the identity of the shoes would also be a very  minor
\ncircumstance  in relation to the charge of murder for  which
\nSarwan\tSingh  is being tried.\tThe result is that,  if\t the
\napprover’s  evidence is discarded as unworthy of credit\t and
\nhis own retracted confession is excluded from  consideration
\nas  not\t being voluntary or  true,  whatever  circumstantial
\nevidence remains is obviously insufficient to
\n125<\/span>
\n970<\/span>
\nbring  home to Sarwan Singh the charge framed  against\thim.
\nIf that be the true position, we must hold that the  learned
\nJudges of the High Court were in error in convicting  Sarwan
\nSingh of the offence of murder.\t It is no doubt a matter  of
\nregret\tthat a foul cold-blooded and cruel murder  like\t the
\npresent should go unpunished.  It may be as Mr. Gopal  Singh
\nstrenuously  urged  before us that there is  an\t element  of
\ntruth in the prosecution story against both the\t appellants.
\nMr.  Gopal  Singh contended that considered as a whole,\t the
\nprosecution story may be true; but between ‘may be true’ and
\n‘must be true’ there is inevitably a long distance to travel
\nand  the  whole of this distance must be covered  by  legal,
\nreliable  and  unimpeachable evidence.\t We  have  carefully
\nconsidered  all\t the arguments which Mr. Gopal\tSingh  urged
\nbefore\tus;  but  we do not think it would  be\tpossible  to
\nregard\tthe approver as a reliable witness or to  hold\tthat
\nthe confession of Sarwan Singh is voluntary or true.  In the
\nresult,\t the  appeal  preferred\t by  Sarwan  Singh  must  be
\nallowed, the order of conviction and sentence passed against
\nhim  must  be  set  aside  and\the  must  be  acquitted\t and
\ndischarged.\n<\/p>\n
\t\tApppeals allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sarwan Singh vs The State Of Punjab(With … on 10 April, 1957 Equivalent citations: 1957 AIR 637, 1957 SCR 953 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. 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>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-254372","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSarwan Singh vs The State Of Punjab(With ... on 10 April, 1957 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sarwan-singh-vs-the-state-of-punjabwith-on-10-april-1957\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sarwan Singh vs The State Of Punjab(With ... on 10 April, 1957 - 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