Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 23
PETITIONER:
SHANKARIA
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT26/04/1978
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
UNTWALIA, N.L.
KAILASAM, P.S.
CITATION:
1978 AIR 1248 1978 SCC (3) 435
ACT:
Proof of guilt-Tests to be applied by the Courts in a
capital case when relying solely on confessional statement
of the accused-Identification of Prisoners Act, Sections 4
and 5-Obtaining of thumb impression in the presence of
Magistrate, whether necessary-Track evidence is a relevant
circumstance which can be taken into account along with
other evidence.
HEADNOTE:
The appellant was tried, convicted and sentenced to death
under Section 302, Penal Code for the double murder of
Kartar Singh and Mada Singh deceased, by the Sessions Judge,
Ganganagar. He was further convicted for offences under
Sections 307, 459, 460 and 380 Penal Code. The case of the
prosecution rested mainly on the confessional statement, Ex.
p.27, part from supporting circumstantial evidence. The
learned Sessions Judge found that the confessional statement
though retracted at the time of examination under Section
313, Criminal Procedure Code, had been voluntarily made by
the accused and that it was true and had been corroborated
in some particulars by the other evidence on record.
Shankaria’s appeal to the High Court was dismissed, the
reference made by the Sessions Judge was accepted and the
conviction and sentence of death were confirmed.
In appeal by special leave, it was contended that (i) the
confession was not voluntarily made but was the result of
police pressure, inducement and coercion and that this
inference was deducible among others, from several features
of the case. (ii) after the preliminary questioning, the
Magistrate hardly give 20 minutes to the appellant for
reflection before recording his confession, which according
to the ruling of this Court in Sarwan Singh v. State of
Punjab [1957] SCR 953 the Magistrate should have sent the
accused back for at least 24 hours to jail to think and
decide, as to whether or not he should make a confession and
(iii) there is reason to suspect that after recording the
confession, the appellant was handed back to the Police
Superintendent who then took him to Hanumangarh. If that be
a fact, it would amount to a contravention of subsection (3)
of Section 164 of the Code of Criminal Procedure, 1973,
giving rise to an inference that the confession was not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 23
voluntary.
Dismissing the appeal, the Court
HELD : 1. A confession recorded u/s 164 Criminal Procedure
Code, if voluntarily and truthfully made, is an efficacious
proof of guilt. [744 B-C]
2. When in a capital case the prosecution demands, a
conviction of the accused, primarily on the basis of his
confession recorded under s. 164 Criminal Procedure Code,
the Court must apply a double test;
(1) Whether the confession was perfectly voluntary ?
(2) If so, whether it is true and trustworthy ?
Satisfaction of the first test is a sine qua non for 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
737
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
rest of the evidence, in the light of the surrounding
circumstances and probabilities of the case. If on such
examination and comparison, the confession appears to be a
probable catalogue of events and naturally fits in with the
rest of the evidence and the surrounding circumstances, it
may be taken to have satisfied the second test. [744 C-F]
3. (a) In the instant case. both these tests were
satisfied. The confession (Ex. P-27) was found to be
voluntary and true. Its perusal showed that there was
nothing improbable or unbelievable in it. It appeared to be
a spontaneous account, studded with such vivid details about
the manner of committing the crimes in question, which only
their perpetrator could know. The physical facts found at
the spot in the morning following the night of occurrence,
told a tale which was consistent with the one told by the
accused in his confession. Among these physical facts was a
dibbi bearing finger-prints, one of which according to the
Expert of the Government Finger Print Bureau, tallied with
the specimen finger-print of the, accused. The accused’s
finger-print on the dibbi which was seized from the spot and
sealed before the arrest of the accused, and the seals on
which remained intact till they were opened by the Finger-
Print Expert, was a tell-tale circumstance, pointing towards
the guilt of the accused. r 752 D, F, 754 D, 759 Al
(b) The confessional statement received assurance from the
other evidence also.
(i) It was corroborated by the medical evidence in regard
to the nature of the weapon (kassi) with which according to
the confession the injuries were inflicted. This fact was
further confirmed by the report of the Serologist who found
human blood on the kassi.
(ii) The moulds of the bare-foot prints found at the scene
of crime, according to the Expert, tallied with the specimen
foot-moulds of the accused.
(iii) Although, by itself, such track evidence could not
be deemed sufficient to carry conviction, yet it was a
relevant circumstance which taken into account along with
the other evidence, reinforced the conclusion as to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 23
identity of the culprit. [755 B, C, 759 D, E]
4. The condition precedent for recording a confession by a
Magistrate in the course of Police Investigation, is
provided in Section 164(2) Cr. P.C. which mandates the
Magistrate riot to record any confession, unless upon
questioning the accused person making it, he has reason to
believe that it is being made voluntarily. In the instant
case, the Magistrate fully complied with the condition. The
large number of clear and pointed questions put by the
Magistrate to the accused for this purpose and the answers
given by the latter shows that the Magistrate had cogent
reasons to believe that the confession was being voluntarily
made. [749 E, F-G]
5. How much time for reflection should be allowed to In
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 from its very nature, may itself be a factor
dispelling fear or influence of the police from the mind of
the accused. In such a case, it may not be necessary to
send back the accused person for any prolonged period to
jail or judicial lock-up before recording his confession.
In the instant case, the accused was got admitted to the
judicial lock-up on the 12th June for getting his confession
recorded under s. 164 Cr. P.C., and, such admission was
made
738
under the orders of the Magistrate who, ultimately recorded
his confession on the 14th June. The accused was for about
two days in judicial custody beyond the reach of the Police.
On June 13, 1974 a written request was made to the
Magistrate by the Police, for recording the confession of
the accused. Even then the Magistrate postponed the
recording of the confession till the following day,
obviously because he wanted to give the appellant one day
more in judicial custody to ponder over the matter free from
Police influence. On the 14th June, notwithstanding the
fact that the accused Shankaria was in judicial custody from
the evening of the 12th June, the Magistrate after the
preliminary questioning, allowed 15 minutes more to the
accused for reflection. Thus, the accused had in fact about
38 or 40 hours in judicial custody, immediately preceding
the confession, and this was rightly considered sufficient
to secure to him freedom from fear or influence of the
Police. [750 E-F, 751 A]
Sarwan Singh v. State of Punjab [1957] SCR 953;
distinguished.
Abdul Razak v. State of Maharashtra AIR 1970 SC 283
followed.
6. There was no infringement of sub-section (3) of s. 164
Crl. P.C. According to the testimony of the Magistrate (PW
6) and the Superintendent of police (PW 22) the custody of
the accused was no handed to the to the investigating
officer, but to the Challani guard who escort under trials
to and from Jail/ Judicial’ guard.[751 E-F, 754A]
Regarding the sentence:
7. The crimes were committed in a most brutal and
dastardly fashion. The victim were taken unawares when
asleep. Two of them were blind. The Neronian conduct of
the accused even after the occurrence, in languishing in the
stricken premises, looking for something to cat in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 23
kitchen, drinking water, smoking bidis, bringing water and
bathing himself, mindless of the specter of the slain and
the groans and gasps of the dying, betrays an extreme
depravity of character. The grisly and gruesome nature of
the murders, the hapless and helpless state of the victims,
the fiendish modus operandi of the appellant the first kill
and then steal- all, the heart of law to call for its
extreme penalty. [759 H, 760 A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION :Criminal Appeal No. 561 of
1976.
Appeal by special leave from the Judgment and Order dated 5-
5-1976 of the Rajasthan High Court in D. B. Crl. Appeal No.
491 of 1975 and D. B. Reference No. 4 of 1975.
S. K. Gambhir (Amicus Curiae) for the Appellant.
S. N. Kacker, Sol. Genl, S. M. Jain, Dalveer Singh and
Ranjeev Dutta for the Respondent.
The Judgment of the Court was delivered by
SARKARIA J.-This appeal by special leave is directed against
a judgment of the High Court of Rajasthan, by which the
order of the Sessions Judge, Ganganagar, convicting the
appellant under Section 302 Penal Code and sentencing him to
death for the double murder of two. persons in Village
Takhat Hazara, was confirmed.
The facts of the prosecution case are as follows
A First Information Report was lodged on September 9, 1973
at about 7.30 a.m. by one Shyam Singh in Police Station
Sadul Sahar, to the effect that when he in the morning went
to the Gurdwara of his
739
village at about 7 a.m. for brooming and burning incense, as
usual, he found three persons, one of whom, Mada Singh, lay
groaning on a cot. The informant went back to the village,
contacted Jagar Singh, 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 respect of the dead body of Kartar Singh deceased
and sent it for postmortem examination. Bhagwan Singh
continued the investigation till September 12, 1973 when it
was taken over by Bhanwar Singh.
A large number of crimes of this pattern involving murders
or attempted murders were committed in Rajasthan and in the
neighbouring States of Haryana and Punjab. Fifteen cases of
crimes of a similar nature, were registered in Ganganagar
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 23
District, alone, from February 1973 to May 1974. Naturally,
the Police machinery of Ganganagar District came into
motion. Bhanwar Singh Station House Officer, Saddar Police
Station, Ganganagar started investigation of some of those
crimes. He took over the investigation of this case also on
September 12, 1973. Shri Shyam Pratap Singh Rathore,
District Superintendent of Police supervised the,
investigation. Suspicion fell on the appellant who was
found absent from his native village Karanpur, District
Ganganagar.
On June 3, 1974, Shri Rathore accompanied by Bhanwar Singh,
S. H. O. and one Subhash (P.W. 23) went to Bhatinda and
arrested the appellant, Shankaria who had assumed the alias
Rattan Lal. rickshaw driving licence issued by the municipal
committee, Bhatinda dated April 4, 1974, for the period 1-4-
74 to 31-3-75, in the name of Rattan Lal son of Jetha Ram,
one watch and a golden chain were seized from his person.
Bhanwar Singh prepared the memo (Ex. P-56A) in respect of
the arrest of the appellant-and his personal search. Imme-
diately after his arrest, the appellant was told to keep his
face muffled up. which he did. The appellant was then taken
by the police to Ganganagar and lodged in the lock-up of the
Police Station on June 4, 1974. Under orders of the
Inspector-General of Police, the investigation was taken
over by Shri Kashi Prasad Srivastava, Superintendent of
C.I.D. on June 5, 1974.
740
On June 12, 1974, the appellant was taken by the police to
Raisingh Nagar, and under the orders of the Magistrate
lodged in the judicial lock-up there.
On June 13, 1974, Shri Srivastava, Superintendent of C.I.D.,
submitted an application to the Judicial Magistrate, First
Class, Raisingh Nagar, requesting that the confessional
statement of the accused be recorded. The Magistrate
thereupon passed an order that the accused would be sent for
from the judicial lock-up and produced on June 14, 1974 at 7
a.m. for this purpose. The appellant was accordingly
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 suspected
to be grievous and caused with a sharp weapon, like the
Kassi (Art. 1). Mada Singh succumbed to his injuries on
September 11, 1973 at 6 a.m. in the hospital.
Dr. M. P. Agarwal conducted the autopsy of Mada Singh and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 23
found these external injuries :
1. Bruise 21" x 1-1/2" on both the right
eye-lids.
2. Incised wound 1/4" x 1" at the outer
angle of right eye.
3. Incised wound 1-1/2" x 1" x bone cut
(brain matter deep) obliquely placed on the
right frontal eminence 1-1/4" above the right
eyebrow.
4 Lacerated wound 1-1/2" x 1/3" x 1" in
front of the tragues of right ear-
741
5. Soft tissues swelling 6" x 5" all over
the right face and front temporal region.
On opening the body, the doctor found soft tissue harmotoma
all over the right temporal, frontal, parietal and occipital
region, and a linear oblique fracture of right temporal
region with multiple fracture pieces and fracture of right
fronto-parietal region under injury No. 3. There was sub-
dural haemorrhage and membrane of the brain were found cut
under injury No. 3. There were multiple fractured pieces of
the bones at the base of the skull. The Injuries 2 and 3 in
the opinion of Dr. Agarwal could be caused with the sharp
edge and Injury No. 4 with blunt side of the Kassi (Art. 1).
The injuries appeared to be caused by separate blows.
Dr. Bahadur Singh found these injuries on Wazir Singh (P.W.)
on September 9, 1973 :
1. Incised wound 1-1/2" x 1/8" upto brain
on right parietal bone 2-1/2" above the ear
obliquely upward downward.
2. Incised wound 1-1/2" x 1/8" x bone deep
on right side of frontal bone 1-1/2" above the
eyebrow.
3. Lacerated wound curved shape outer part
of eye starting from lateral side of
eyebrow upto maxillary prominence.
Injuries 1 and 2, in the Doctor’s opinion, could be caused
with the sharp side of the Kassi (Art.1), and were grievous;
while Injury 3 could be caused with the blunt side of this
Kassi. Wazir Singh was unconscious at the time of his
medical examination.
Dr. Bahadur Singh performed postmortem examination of the
body of Kartar Singh deceased on September, 9, 1973 and
found these injuries :
1. Lacerated wound 2-3/4"x1/2" upto brain
matter on the frontal bone 21’ above the
medial end of right eyebrow upward downward.
Brain matter was seen from the wound. The
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.
742
On June 29, 1974, the sealed packets containing the Dibbi
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 23
(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 Shankaria appellant; while the other
chance print Q2 on the Dibbi was not distinct enough to
admit of comparison.
During his examination at the trial, the appellant denied
the prosecution case; he retracted the confession and said
it bad been made under duress. He also alleged fabrication
of evidence of footprints, etc. by the Police.
The learned Sessions Judge found that the confessional
statement (Ex. P-27) had been voluntarily made by the
accused and that it was true. He further held that the
confession had been corroborated by the medical evidence and
the circumstantial evidence, namely : (a) the presence of a
finger-print of the accused on the Dibbi (Art. 2); (b) that
one railway ticket was issued from Sadul Shahar to Bhatinda
on September 9 1973; (c) the similarity (as per Expert,
P.W.19) of the foot-mould prepared from the foot prints
found at the scene of crime on 9-9-1973, with the specimen
foot-moulds of the accused; (b) sojourn of the accused to
Haridwar after committing the crime and his stay in a costly
hotel there, on 13th and 14th September, 1973, etc.
In the result, the Sessions Judge convicted the appellant
under Section 302 Indian Penal Code for the murders of
Kartar Singh and Mada Singh and sentenced him to death. He
further convicted the appellant under Section 307 I.P.C. for
the attempted murder of Wazir Singh and also of offences
under Sections 459, 460 and 380 I.P.C. for committing
lurking house trespass by night and stealing Rs. 1,100/-
from there but he did not award any sentence on these counts
in view of the death sentence imposed for the double murder.
Shankaria appealed to the High Court; while the Sessions
Judge also made a reference for confirmation of the death
sentence.
The High Court dismissed the appeal and confirmed the
conviction and the sentence of death.
Hence, this appeal by special leave.
There is no ocular evidence of eye-witnesses in this case.
At the time of occurrence, the three victims were the only
inmates of the Gurdwara. Kartar Singh died at the spot.
Mada Singh died in the Hospital without regaining
consciousness. The lone survivor, Wazir Singh (P.W. 14) was
examined at the trial. He was a blind He had received the
head injuries when he was asleep. On receiving those
injuries he lost consciousness and regained it much later in
the hospital on September 9, 1973. In these circumstances,
P.W. 14
743
was unable to say as to who had caused him the head
injuries. He, however, did depose to the theft of Rs. 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-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 23
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 through the
side and one kassi was lying there in a
corner. There in the courtyard, three beds
were lying. I picked up the kassi and hit on
the head of one person from the back (reverse)
side of the kassi. Thereafter, I hit another
person. I hit the third person after running,
as he was sleeping very far. I then drank
water, entered the kitchen but could not find
anything in spite of search. Then I entered
another room, opened the kunda (khuta). There
a short was lying, from which I took out a
key. I broke open the lock and got Rs. 700/-
and got nothing else during the search. Then
I broke open the lock of another house with
the help of a subble (iron bar). There I was
able to get Rs. 400/, out of which Rs. 300/-
were in cash and Rs. 100/ as change (small
coins). I then remained there for much time,
drank water, smoked a bidi, brought water from
the nearby Johar (tank) in a bucket, and
bathed myself.
"Then I opened the Gurdwara and searched it,
but could not find anything. I then
immediately left the village Takhat Hazara and
took the railway track again and reached the
road and got on Abohar-Sirsa Road. There I
stayed upto 7 a.m. In the morning I boarded
the bus for Sangaria at 7 a.m. and stayed
there at the station. I stayed there upto 10
a.m. and took tea. Then I boarded the train
for Bhatinda at 10 a.m. and reached Bhatinda
at 12.30. There I got the clothes stitched.
In the evening at 10, I boarded the train for
Delhi, (then said) I went to Bikaner and not
Delhi. I stayed for two days at Bikaner.
After two days went to Delhi and stayed there
for two days. From Delhi, proceeded for
744
Haridwar and stayed there in a rented room @
Rs. 12/- per day. I stayed at Haridwar for 8-
9 days and then from Haridwar I proceeded for
Rishikesh. There I stayed for two days and
further proceeded for Lachman Jhoola. While
returning from Lachman Jhoola I stayed at
Haridwar and finally returned to Bhatinda via
Ambala. I did not do any work for one month.
Afterwards, I started Rikshaw driving. 1 used
to commit thefts, and the police also used to
catch me, I was turned out from the house by
the people of my house and that is why I
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 23
happened to ply the Rickshaw."
This confession was retracted by the appellant when he was
examined at the trial under Section 313 Cr. P.C. on June
14, 1975. It is well settled that a confession, if
voluntarily and truthfully 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 rest of the
evidence, in the light of the surrounding circumstances and
probabilities of the case. If on such examination and
comparison, the confession appears to be a probable
catalogue of events and naturally fits in with the rest of
the evidence and the surrounding circumstances, it may be
taken to have satisfied the second test.
Now, let us apply these tests to the confession (Ex. P-27):
The first question is whether the confession was voluntary ?
In this connection, some undisputed facts may be noted. The
appellant was arrested by Shri S.P. Rathore, Superintendent
of Police on June 3, 1974 at Bhatinda. He was then taken to
Ganganagar in Rajasthan in connection with the investigation
of 15 crimes of a similar pattern committed in Ganganagar
District. The appellant remained in police custody upto
June 12, 1974 on which date in the afternoon, he was brought
by the police to Raisingh Nagar, where Shri Sukhdarshan
Kumar Bansal, Judicial Magistrate First Class, was then
holding his Court. Under the orders of the Magistrate, the
appellant was committed to the judicial lock-up at Raisingh
Nagar in the evening of June
745
12, 1974. Thereafter, he remained there in the judicial
lock-up for two days more. On June 13, 1974, Shri Kashi
Ram, Superintendent of Police, submitted an application to
the Magistrate, requesting him to record the confession of
the accused. On that application, the Magistrate passed an
order to the effect that the accused be sent for from the
judicial lock-up on the following day at 7 a.m. for
recording his confessional statement. In compliance with
the Magistrate’s order, the appellant was brought from the
judicial lock-up in the morning of June 14, 1974 and
produced before the Magistrate. At 8.20 a.m., the
Magistrate put some questions to the appellant by way of
preliminary examination to ensure whether he wanted to make
a confession voluntarily. The questions put to the accused
and the answers given by him during this preliminary
examination, as recorded by the Magistrate may be extracted
:
"Q. 1. From where did the police arrest you ? On what day or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 23
at what time ?
Ans. I was arrested at Bhatinda. I was arrested on 3rd at
2.
Q. 2. For how much time are you in police custody ?
Ans. I was in police custody from 3rd to 12th.
Q. 3. What sort of behaviour was given to you during that
period ?
Ans- I have been extended good behaviour 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
746
Q. 9. It has fully been explained to you that you are
not bound to make confession and that you may give any
statement whenever you like to make it voluntarily and that
if you make confession that may be used against you in
evidence. Now, tell, what you want to say ?
Ans. I have understood that it is not binding upon me to
make confession and that it may be used against me in
evidence."
After this preliminary examination, the Magistrate started
recording of the confessional statement at 8.45 a.m. After
the completion of the statement (Ex. P-27) (which we have
extracted earlier), at its foot, the Magistrate made a
memorandum, which rendered into English, reads as follows :
"I have explained to Shankaria alias Ratan Lal
that he is not bound to make a confession and
that if he does so, any confession whatever he
makes, may be used against him in evidence and
I believe that this confession of the crime
has been made voluntarily by him (Shankaria).
This confession has been made in my presence
by him (Shankaria). By my reading, over, on
hearing it, the accused admitted it to be
correct. It is a true and full record of the
statement which he (Shankaria) made
voluntarily."
The Magistrate, Shri Bansal, was also examined as a witness
at the trial. He proved the record of the confession and
testified that he bad recorded it after fully satisfying
himself that the confession was being made voluntarily.
Mr. S. K. Gambhir, appearing as amicus curiae, argued the
case very thoroughly on behalf of the appellant. It is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 23
contended by him that the confession (Ex. P-27) was not
voluntarily made but was ’the result of police pressure,
inducement and coercion. According to him, this inference
is deducible from these circumstances
(1) No explanation is forthcoming as to why the accused was
brought all the way from Ganganagar to Raisingh Nagar for
getting the confession recorded there. Possibly, the police
did not want to give the appellant an opportunity of having
independent advice which could more easily be available in
the District town of Ganganagar rather than at the Sub-
Divisional town, Raisinghnagar.
(2) The Judicial Lock-up, Raisingh Nagar, being contiguous
to the Police Station is almost a part of it. The appellant
therefore, even on the 12th, 13th and 14th of June 1974,
during the time when he was an inmate of the Judicial Lock-
up, could not be said to be free from police surveillance
and influence.
(3) The Magistrate hardly gave 20 minutes to the appellant
for reflection before recording his confession. It is
maintained that according to the ruling of this Court, the
Magistrate should have given at
747
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 Magistrate of the First Class, competent to
record a confession, was available at Ganga Nagar. Our
attention has been invited to the entries in the Roznamacha
of Police Station, Sadar Ganganagar which reveal this fact.
Stress has also been placed on the fact that no question
whatever was put to S/Shri Srivastava (P.W. 20) and Bhan-war
Singh (P.W. 21) in cross-examination to show that on June
12, 1974, a Magistrate competent to record a confession
under Section 164 Cr.P.C. was available at Ganganagar and
that the appellant was taken to Raisinghnagar with a
sinister motive or for extorting a confession. There is
merit in the submission made by the learned Solicitor-
General.
The relevant Roznamcha entries of Police Station Sadar,
Ganganagar, which were proved by Bhanwar Singh, S. H. O.
(P.W. 21), have been read out to us. From those entries, it
appears that the appellant was taken on June 12, 1974 from
Ganganagar to Raisingh Nagar for getting his ’confession
recorded by a Magistrate, because on that date no Judicial
Magistrate of the First Class was available at Ganganagar.
It may be noted further, that in cross-examination, no
question was put to Shri Bhanwar, Singh or Shri Srivastava
to show that on 12-6-74 a Magistrate competent to record a
confession, was available at Ganganagar, or that the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 23
appellant was taken to Raisingh Nagar with a mala fide
motive, although the appellant was at the trial properly
defended by Shri Ganpat Ram, who, we are told, is an
experienced lawyer. There is nothing on the record to
indicate that the appellant was taken to Raisingh Nagar to
deprive him of the opportunity of having independent legal
advice, or with any other oblique motive.
As regards point No. (2), the appellant during his
examination under Section 313 Cr.P.C., stated : "During
those days, Kanshi Prasad Ji was staying in the Police
Station, Raisinghnagar which is adjacent to the Judicial
Lock-up, and used to see and threaten me". Thereafter, the
confusional statement (Ex. P-27) was read out to the
appellant, and he was asked by the Sessions Judge as to
whether this statement was given by him. To this, the
appellant replied : ’51 did
(1) (1957) S.C.R. 953.
748
not give this statement voluntarily. I have given this
statement under compulsion due to the fear, threat and
beating given by Shri Kashi Prasad."
In cross-examination, no question was put to Shri 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
cannot say whether the distance in between them is about 30
feet." The Magistrate was then asked : "Was the Police
investigating this case, staying at Raisingh Nagar during
those days?" The witness answered: "I cannot say, as I had
never been to Police Station Raisingh Nagar."
The evidence of the Magistrate, referred above, shows no
more than the fact that the Judicial Lock-Up at Raisingh
Nagar is located in a separate building, near the Police
Station. But from the mere fact that the judicial lock-Up
is located in the proximity of the Police Station, it does
not follow that both are, under the control of the Police.
The judicial lock-Up-as appears from the statement of the
Magistrate, Shri Bansal-is a Sub-Jail governed by the Jail
Manual. The watch and ward staff of the Judicial Lock-Up
are under the control of the Jail Superintendent or the
Magistrate who may be the ex-officio Superintendent of the
Sub-Jail (including the Judicial LockUp). The precise
position as to whether Shri Bansal or any other Magistrate
was in charge of the Judicial Lock-Up is not clear from Shri
Bansal’s statement, because he was not specifically and
fully questioned in regard to this aspect of the matter.
Even so, this much is clear that the Judicial Lock-Up was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 23
not under the control. of Shri Srivastava. Even Police
Station, Raisingh Nagar, could not be under the
administrative control of Srivastava as he was not the
District Superintendent of Police but belonged to the
C.I.D., and his headquarter was at Jaipur. In these
circumstances, it cannot be believed that from 12th to 14th
June 1974, Shri Srivastava was staying in Police Station
Raisingh Nagar. An Officer of his status, belonging to,
another branch of the Police Department, normally is not
expected to use a Police Station for his board and lodging
while on tour. Moreover. as already mentioned, not a single
question was put to Srivastava or Bhanwar Singh to show that
they halted in the Police Station.
749
kaisingh Nagar is a Sub-Divisional Town. There must be a
Rest House or an Inspection Bungalow for stay of the
Government Officers on official tour. Had these officers
been questioned on this point, they would have disclosed
their halting place which could be checked with reference to
their T.A. Bills or the record maintained at the Rest House.
No question was put to these officers as to whether they 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 recording of his
confessional statement was about 15 minutes. But there is
no statutory provision in Section 164 Cr. P.C or elsewhere,
or even an executive direction issued by the High Court that
there should be ’an interval of 24 hours or more between the
preliminary questioning of the accused and the recording of
his confession. The condition precedent for recording a
confession by the Magistrate in the ;course of Police
investigation is provided in Section 164(2) Cr.P.C. which
mandates the Magistrate not to record any confession, unless
upon questioning the accused person making it, he his reason
to believe that it is being made voluntarily.
In the instant case, the Magistrate fully complied with the
condition. He (Shri Bansal) has testified that before
recording the confession he had fully satisfied himself that
the accused wanted to make the confession voluntarily.
The large number of clear and pointed questions put by him
to the appellant for this purpose and the answers given by
the latter have been extracted in full earlier. Their
perusal shows that the Magistrate had cogent reasons to
believe that the confession was being voluntarily made.
Although the interval between the preliminary questioning of
the appellant and his confession was about 15 minutes, the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 23
appellant had no less than 38 hours at his disposal, whilst
he was in judicial custody
750
free from fear or influence of the Police, to think and
decide whether or not to make a confession. As noticed
already, the appellant was brought from Ganganagar to
Raisingh Nagar on June 12, 1974 because on that day no
Magistrate competent to record the confession of the
appellant was available at Ganganagar. The appellant was
admitted to the Judicial Lock-Up Raising Nagar under the
orders of the Magistrate about or after 4 p.m. on that date.
Thereafter, the appellant continuously remained in the
Judicial Lock-Up or judicial custody till his confession was
recorded on June 12, 1974 from 8.45 a.m. onwards. The
Magistrate, Shri Bansal was. aware that the appellant was
continuously in judicial custody since the evening of June
12, for about 38 or 40 hours preceding the confession.
In Sarwan Singh v. State of Punjab (supra) this Court had
emphasised that before recording a confession, the
Magistrate should see that the mind of the accused person
was completely free from any possible interference of the
police. 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 from its very nature, may itself be a factor
dispelling fear or influence of the police from the mind of
the accused. In such a case, it may not be necessary to
send back the accused person for any prolonged period to
jail or judicial lock-Up. In the instant case, the accused
was got admitted to the judicial lock-Up on the 12th June
for getting his confession recorded under Section 164 Cr.
P. C., and such admission was made under the orders of the
Magistrate who ultimately recorded his confession on the
14th June. The accused was for about two days in judicial
custody beyond the reach of the police. On June 13, 1974, a
written request was made to the Magistrate by the police,
for recording the confession of the accused. Even then, the
Magistrate postponed the recording of the confession till
the following day, obviously because he wanted to give the
appellant one day more in judicial custody to ponder over
the matter free from Police influence. On the 14th June,
notwithstanding the fact that the accused Shankaria was in
judicial custody from the evening of the 12th June after the
preliminary questioning,
751
the Magistrate allowed 15 minutes more to him for
reflection. Thus considered, Shankaria bad, as a matter of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 23
fact, about 38 or 40 hours in judicial custody, immediately
preceding the confession, and this was rightly considered
sufficient to secure freedom from fear or influence of the
Police to him (Shankaria).
The facts in Sarwan Singh v. State of Punjab (ibid) were
entirely different. Therein, the accused who had visible
marks of injuries was straightaway brought by the Police
from its prolonged custody, and produced before the
Magistrate who immediately thereupon recorded his
confessional statement, while the Police Sub-Inspector
remained outside in the verandah of the Magistrate’s office.
The Magistrate did not ask the accused how he came to be
injured. It was in these circumstances that this Court held
that the failure of the Magistrate to give adequate time to
the accused to consider the matter, stamped it is
unvoluntary.
The facts of the case in hand are, substantially in line
with those of Abdul Razak v. State of Maharashtra(1) There,
the accused was kept after his arrest in police custody for
a fortnight. Then, after being kept in jail custody for
three days, he was produced before the Executive Magistrate
for recording confession. The Magistrate 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. Srivastava in cross-
examination, that after the confession bad been recorded,
the accused was taken to Hanumangarh and the witness had
accompanied him. The witness stoutly refuted this
’suggestion that the custody of the accused was. after the
confession, given to him or the investigating Police. He
however, affirmed that the accused was sent to the judicial
lock-up Hanumangarh. There was no good reason to disbelieve
the evidence of the Magistrate P.W. 6) and the
Superintendent of Police (P.W. 22)
(1) A.I R 1970 S.C. 283
752
to the effect that after recording the confession, the
custody of the accused was not handed to the investigating
police.
Mr. Gambhir’s contention, therefore, is not factually
correct. There was no infringement of sub-section (3) of
Section 164 Cr. P.C. Thus, all the four points pressed into
argument by Mr. Gambhir, fail.
Another circumstance which reinforces the conclusion about
the confession being voluntary is that it was not retracted
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 23
at the earliest opportunity. The confession was recorded on
June 14, 1974. The trial of the accused commenced on
January 10, 1975 when charges were framed and read over and
explained to the appellant by the Sessions Judge. At the
trial, he was defended by Shri Ganpat Ram, who, as already
observed, was an experienced lawyer. The trial dragged on
for several months, because witnesses were examined piece-
meal on different dates. The prosecution evidence was
closed on June 14, 1975 and the accused was then examined
under Section 313 Cr. P.C. It was during such examination,
the appellant for the first time retracted the confession
and took up the plea that he had made it under duress of the
police.
After bestowing our best consideration to all the questions
bearing on the ’point, we are of opinion that in the
circumstances of the case, the High Court was right in
coming to the conclusion that this confession (Ex. P. 27)
had been voluntarily made by Shankaria, accused.
The next question is : Whether the confession (Ex. P-27) is
true? In this connection, it may be recalled that the
appellant did not ’say that he was tutored by the Police to
make this confession. He did not say that the story
adumbrated in the confession (Ex. P--27) was put into his
mouth by somebody else. He did not deny the factum of
making this confession. His plea in ’substance was that he
had made it but under compulsion and threat. He however.
added that "the statement (Ex. P. 27) is false."
A perusal of the confessional statement (Ex. P. 27 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).
753
(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 but could not
find anything in spite of search. Then I entered another
room, opened the Kunda( Khuta), there a short (shirt) was
lying from which I took out a key. I broke open the lock
and got Rs. 700/- and got nothing else during the search."
(5) "Then I broke open the lock of another house with the
help of Subble. There I was able to get Rs. 400/-".
(6) "I then remained there for much time........ brought
water from the nearby johar in a bucket, and bathed myself."
(7) "Thereafter,I went to Bhatinda. In the evening
(i.e. on 9-9-73) at 10 p.m. proceeded by train to Bikaner.
I stayed for two days at Bikaner. After two days, I went to
Delhi and stayed there for two days. From Delhi, I
proceeded for Haridwar and stayed there in a rented room at
Rs. 12/- per day."
Facts (1) to (6) in the confession (Ex. 27), find
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 23
corroboration, firstly, from the reliable circumstantial
evidence brought on the record by the prosecution. Ex. P-
8A is a memorandum which was prepared by A.S.I. Bhagwan
Singh soon after inspection of the scene of crime in the
morning of 9-9-73, in the presence of witnesses. In this
memorandum, be noted the physical facts observed by him at
the scene, which according to his lights, were relevant.
This explanatory memorandum is an annexure to the rough site
plan (Ex. P-8) which was then prepared by him. The
veracity of this site-plan (Ex. P-8) and the memorandum
(Ex. P-8A) was never impeached. No: question was put to
Bhagwan Singh in cross-examination to challenge the
genuineness of these documents. Nor was any suggestion put
to him that these documents were prepared subsequently or
that the facts noted therein were wrong.
In the memorandum (Ex. P-8A), Bhagwan Singh has inter alia
noted :
"The bare-foot prints of the culprit are
present at the outer side near the wall
towards the Western (side) of the Gurdwara at
No. 7. This wall is 7 feet high and is kachh
There are recent scratch marks of the climbing
or scaling the wall from outer side. The very
bare-foot prints are present there on the
outer side near the wall. It is through this
way that the culprit entered inside and
reached the cots of * the sleeping
persons."
The circumstantial facts noted in the above extract tend
assurance to the portion No. (1) of the confession.
Assistant Sub-Inspector Bhagwan Singh has further noted in
the 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
754
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 has shown these points by
arrow marks in the site-plan. Bhagwan Singh has- further
noted in the said document that at the site the locks
including be detached bolts are lying near the detached
frames of the three residential rooms. He has also noted
how clothes, small coins, iron trunks and other household
articles were lying scattered in the rooms.
These circumstantial facts found at the spot tell a tale
which is consistent with the one told by the appellant in
the portions (4), (5) and (6) of his confessional statement.
The portion marked (7) of the confession receives direct
support from the evidence rendered by Sita Ram (P.W. 13),
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 23
and the record (Ex. P-36) of the hotel at Haridwar which
bears the signatures of the appellant Ratan Lal and of the
witness, Sita Ram. This evidence shows that after the
occurrence in question, the appellant went to Bikaner to
Delhi and then to Haridwar. He stayed in a hotel at
Haridwar paying Rs. 12/- per day on 13-9-73 and 14-9-73.
Mr. Gambhir contends that the medical evidence contradicts
the confession inasmuch as it is stated therein that the
appellant caused only one injury to each of the victims with
the reverse side (i.e. the pin-point) of the Kassi (Art. 1).
The contention is devoid of merit. As already noticed, Dr.
Bahadur Singh clearly stated that the incised injuries found
on the victims could be caused with the sharp edge of the
Kassi (Art. 1) while their other injuries could be caused
with the reverse side of the same Kassi. It may however, be
conceded that from the medical evidence the possibility of
the assailant having given more than one blow to the victims
cannot be ruled out. But in his confessional statement, the
appellant is not categorical with regard to the number of
blows inflicted by him on the victims. All that he says is,
that he hit each of the three victims, one after the other,
in quick succession, on the head. The medical evidence
shows’ that the blows on the heads of the victims had been
755
given with great force. The autopsy of Kartar Singh and
Mada Singh revealed that their skull-bones had been broken
into fragments. The first blow received by each of the
three sleeping victims, two of whom were blind persons, must
have stunned them into coma.
Be that as it may, the failure of the appellant to say in
his confessional statement the precise number of blows given
to the victims, does not amount 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 Rs.
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 tampered with it so long as the
witness remained posted in the Police Station. The sealed
parcel containing the Dibbi was sent to the Finger Print
Expert under cover of a letter, dated June 29, 1974, from
Shri Kashi Prasad Srivastava (P. W. 22), This witness (P.
W. 22) testified that the seals on the parcel containing the
dibbi were intact when it was sent to the Finger Print
Expert. Mr. Gambhir submits that the parcel containing this
Dibbi was not sent to the Finger-Print Expert for
photographing and preserving the finger-prints said to have
been found on it, till the 29th June,, 1974, i.e. 24 days
after his specimen finger impressions were taken by the
Police. It is pointed out that no explanation has been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 23
given by the prosecution as to why this Dibbi was not sent
to the Finger-Print Bureau, Jaipur, soon after its seizure,
for taking enlarged photographs of the alleged finger-prints
on it. It is argued that in view of this unexplained delay
in sending the dibbi to the Finger-Print Expert, there is
reason to suspect that the finger-print of the appellant on
the Dibbi might have been obtained by force or trickery by
the police after his arrest. In this connection, it is
emphasised that the prosecution has not led any satisfactory
or independent evidence that the ’seals on the parcel
containing this Dibbi remained intact and had not been
tampered with till it was sent on June 29, 1976 to the
Finger-Print Expert and was opened by him.
A similar contention was raised before the High Court. The
learned Judges repelled it with these observations :
"There is no doubt that the prosecution has
failed to lead evidence that the finger-prints
on the ’dibbi’ Art. 2 were
75 6
not tampered with from 9-9-73 to 29-6-74 when
they were sent to the Finger-Print Expert. As
stated above. there is ample evidence on the
record that when the ’dibbi’ Art. 2 was
recovered, it was sealed. P.W. 22 kashi
Prasad has stated that the seals of Art. 2
were intact when they sent it to the Finger-
Print Expert. P. W. 16 Shri Tankha has also
stated that the seals on Art. 2 were intact
when they were received by him. The most
important thing, which is to be kept in mind,
is that the finger-prints of one individual do
not tally with the finger-prints of any other
individual. The science of finger-prints is
itself a complete science for the purposes of
identification. In 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
substituted nor superimposed, and therefore,
the apprehension of the de-fence that the
finger prints could be tampered with, in the
absence of such evidence, is wholly
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 23
unfounded."
While we agree with the conclusion of the High Court that
there was no good reason to suspect that the finger-print of
the appellant found on the dibbi, Art. 1, was a fabrication,
we will like to clarify and elaborate a little the reasoning
by which this conclusion is arrived at. The first aspect of
the matter which needs clarification is that this is not a
case where the prosecution had led no evidence, to show that
the finger-prints on the dibbi, Art. 1, from the date of its
seizure to the date they were sent to the finger-print
expert, were intact and had not been tampered with.
Firstly, there was the evidence of A.S.I. Bhagwan Singh (P.
W. 16) that when in the morning of 9-9-73, he inspected the
scene of occurrence, in the presence of witnesses, he found
the dibbi, Art. 2, in the room of the Gurdwara. Some small
coins were lying scattered near it. He saw finger marks on
this Dibbi. He therefore, seized it and sealed it into a
parcel in the presence of the witnesses and prepared the
memorandum, Ex. P-14, Bhagwar Singh clearly stated that he
bad deposited the parcel, with seals in tact. in the
Malkhana and nobody tampered with them so long as
757
remained in his charge. Secondly, there was the evidence of
Shri Srivastava that on 29-6-74 when the sealed parcel
containing the Dibbi was sent to the Finger-Print Bureau,
Jaipur, the seals on it were intact.
The only deficiency in the evidence on this point is that
Bhagwan Singh was not asked about the date upto which he
remained incharge of the Malkhana or posted in Police
Station Sadul Sahar. In cross-examination, he expressed
ignorance as to when the foot-moulds or the ’dibbi’ were
sent to the Finger-Print Expert. Probably, he was
transferred from this Police Station sometime before that
date. At the date of his deposition (10-3-75), he was
posted in Police Station Hindu Mal Kot. In cross-
examination, it was suggested to P. W. 16, that the
"recovery memos of foot-print moulds and dibbi were prepared
after the accused was arrested. The witness sharply denied
this suggestion.
The failure of the prosecution to bring out these details in
evidence, in the circumstances of the case, is no ground to
suspect, that the finger 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 signature. The Dibbi,
Art. 2, present in the Court, is the same." The witness gave
the time of taking this Dibbi into possession, at 8 a.m.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 23
Mithu Singh, P. W. 9, corroborated Shyam Singh, P.W. 3. He
also identified his signature on the memo (Ex. P--14).
Both these witnesses sharply refuted the suggestion put to
them by the defence counsel, that the seizure memo, Ex. P-
14 was prepared wrongly, after the arrest of the accused.
Even Jagger Singh, P. W. 8, who was allowed to be cross-
examined by the Public Prosecutor, testified that the iron
Dibbi, Art. 2, had been lifted from the spot and sealed by
the Police in his presence.
758
He, however, stated that "the seizure memo Ex. P-14, does
not bear my ’signature". This may be due to a lapse of
memory. It does not appear from the record, that the memo
Ex. P-14 was shown to him when this question was asked.
Nothing was brought out in the cross-examination of these
witnesses, particularly P. W. 3 and P. W. 9, to show that
they were not speaking the truth. Their evidence taken in
conjunction with that of A.S.1. Bhagwan Singh, had
established beyond all manner of doubt that when this Dibbi
was found at the scene of crime on 9-9-73, it had finger-
prints on both sides which could be of the culprit who had
opened it and taken away Rs. 400/- from it. That was why
A.S.I.Bhagwan Singh sealed it there and then to preserve
those finger-prints-
During his examination at the trial, the appellant did not
say in positive specific terms, that after his arrest, he
was made to handle the Dibbi (Art. 2); what the appellant
then stated on this point was as. follows :
"The police had taken many moulds in the police station
after my arrest so also many palm impressions on various
things were not made. I do not know whether the dibbi was
included amongst them or not." When the evidence of the
Finger-Print Expect, Mr. P. N. Tankha (P. W. 18), to the
effect-that one finger impression on the dibbi, Art. 1,
tallied with the middle finger-print of the left hand of the
accused was put to Shankaria, the latter answered : "The
witness tells false."’ This reply would be consistent only
with the position that his fingerprints on the dibbi were
not taken after his arrest.
The failure of the appellant to say in categorical terms
that after his arrest he was made to handle this Dibbi.
Art. (2), cuts at the root of his vague and omnibus plea
that all evidence, including that of the foot-moulds,
finger-prints, etc. had been fabricated by the Police. In
the first place, as rightly observed by the High Court,
fabrication of the fingerprints in the circumstances of the
case was difficult, without super-imposition. Secondly, it
is impossible to believe that an investigator of the status
of a Superintendent of Police, would go to the length of
causing substitution of the fingerprints of the accused in
place of the original finger-print of another person on the
Dibbi.
Mr. Gambhir next contends that in view of Section 5 of the
Identification of Prisoners Act, it was incumbent on the
police to obtain the specimen thumb-impressions of the
appellant before a Magistrate, and, since this was not done
the opinion rendered by the Finger-Print Expert, Mr. Tankha,
by using those illegally obtained specimen finger
impressions, must be ruled out of evidence.
The contention appears to be misconceived because in the
State of Rajasthan, the Police were competent under Section
4 of the Identification- of Prisoners Act, to take ’the
specimen fingerprints of the accused, and this they did, in
the instant case, before the Superintendent of Police, Shri
K. P. ’Srivastava. It was not necessary for them to obtain
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 23
an order from the Magistrate for obtaining such specimen
fingerprints.
759
In view of all that has been said above, the presence, of
the fingerprint of the appellant on the Dabbi, Art. 1, from
which cash was stolen at the time of occurrence, is a tell-
tale circumstance pointing towards the guilt of the
appellant.
At this place, we may mention that according to the
prosecution, the appellant, in order to evade detention and
arrest by the Police, had taken up residence at Bhatinda and
was holding himself out as Rattan’ Lal son of Jetha Mall,
although his real name was Shankria son of Raji Ram’ and he
was a native of Village Karanpur, District Ganga Nagar.
Subhash P. W. 23, was examined by the prosecution to estab-
lish this fact. P. W. 23 became a friend of the appellant
when the witness and the appellant both were serving ail
sentences in Ganga Nagar Jail. P. W. 23 had helped the
Police in arresting the appellant from Bhatinda. At the
trial also, P. W. 23 identified the appellant as the same
person. The evidence of P. W. 23 has been believed by the
courts below and Mr. Gambhir has not assailed it before us
on any tangible ground.
Now. remains the evidence of the foot-moulds. These, moulds
were prepared from the foot-prints of the suspected culprit,
found in or near about the Gurdwara on 9-9-73. On 16-6-74,
specimen bare-foot prints of the appellant were taken before
the Additional District Magistrate and specimen foot-moulds
were prepared therefrom. The two sets of foot-moulds were
sent to the Expert, Mr. Tankha, at Jaipur on 29-6-74. W.
Tankha testified at the trial that the foot-mould 5 (of one
of the bare-foot prints found at the scene of crime) tallied
with the specimen left foot-mould of the appellant.
Although the science of identification of foot-prints and
foot-moulds is not a developed science, and track evidence,
by itself, may not be deemed sufficient to carry conviction
in a criminal trial, yet it is a relevant circumstance which
taken into account along with the other evidence, may
reinforce the conclusion as to the identity of the culprit.
In the instant case, the other evidence per se, was
sufficient to fix the identity of the appellant with the
crime. The evidence of similarity of the foot-moulds taken
in conjunction with the circumstance,’ that If at the scene
of occurrence there were bare-foot prints which appear to be
of one person, does lend further assurance to what the
appellant has stated in his confessional ’statement with
regard to his going about bare-footed inside and outside the
Gurdwara at or about the time of committing the crimes in
question.
To sum up, it was cogently established that the confession
(Ex. P-27) was voluntarily made and it is true. Further,
it receives assurance in several material particulars from
reliable independent evidence, mainly of a circumstantial
character. The confession. Ex. 27, coupled with the other
evidence on the record, had unerringly and indubitably
brought home the charges to the appellant,.
The crimes were committed in a most brutal and dastardly
fashion. The victims were taken unawares when they were
asleep. Two of them were blind persons. His Neronian
conduct even after-the occurrence in languishing in the
stricken premises, looking for something to
760
eat in the kitchen, drinking water, smoking Bidis, bringing
water and bathing himself, mindless of the specter of the
slain and the groans and gasps of the dying, betrays an
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 23
extreme depravity of character. The grisly and gruesome
nature of the murders, the hapless and helpless state of the
victims, the fiendish modus operandi of the appellant to
first kill and then steal-all, steel the heart of law to
call for its extreme penalty.
For all the foregoing reasons, we dismiss this appeal,
affirm the judgment of the High Court and maintain the
conviction of the appellant and the sentence of death
awarded to him for the murders of Kartar Singh and Mada
Singh.
S.R. Appeal dismissed.
761