Topic: Sarwan Singh vs The State Of Punjab - FIR

Sarwan Singh vs The State Of Punjab
Bench: Gajendragadkar, P.B., JAGANNADHADAS, B., SINHA, BHUVNESHWAR P. - CITATION: 1957 AIR 637     1957 SCR 953 - DATE OF JUDGMENT:10/04/1957

ACT:
Confession--Procedure--Duty of the Magistrate--Time to be given     to accused     to    decide     to    make     the confession--Corroboration--Approver--Reliability--Test-- Corroboration--Code of Criminal Procedure (Act V of 1898), s.164.

HEADNOTE:
The appellants and G were convicted of the offence of murder by the Sessions Court on the basis of the evidence of     the approver, which it considered reliable, and the confession made by the first appellant which it found to be voluntary and true. The High Court held that the evidence of     the approver as against G was very discrepant and. unreliable and set aside his conviction but, nevertheless, confirmed the conviction of the appellants. The appellants appealed to the Supreme Court.    It was found (1) that the statement originally made by the approver as    against     the second appellant was wholly inconsistent and    irreconcilable    with the evidence given by him in Court and that the High Court did not consider the question as to whether the approver was a reliable witness at all, (2) that    the Magistrate     who recorded the confession did not fully comply with     the procedure to be adopted to ensure that it was voluntary, (3) that the prosecution story as deposed to by the approver was inconsistent with the material statement in the     confession, and (4) that    the High Court while deciding    whether     the confession was voluntary assumed that it was true. Held,    that the conviction of the appellants must be     set aside.

The appreciation of an approver's evidence has to satisfy a double test.     It must show that be is a reliable witness and that his evidence receives sufficient corroboration. The act of recording confessions under s. 164 of the    Code of Criminal Procedure is a solemn one and in discharging his duties under the said section the Magistrate must take    care to see     that the requirements of sub-s. (3) Of S. 164     are fully satisfied.

When an accused person is produced before the Magistrate by the investigating officer, it is of the utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and he    must be sent to jail custody and given adequate time to consider whether he should make a confession at all. Ordinarily, he should be given at least 24 hours to decide. Even if a confession is voluntary, it must also be established that it is true and, for that purpose, it is necessary to examine it

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and compare it with the rest of the prosecution evidence and the probabilities of the case.

JUDGMENT:

CRIMINAL APPELLATE, JURISDICTION: Criminal Appeals Nos. 22 and 23 of 1957.

Appeals     by special leave from the judgment and order dated August    7, 1956, of the Punjab High Court at Chandigarh in Criminal Appeals Nos.     253 and 250 of 1956     and Murder Reference No.    38 of 1956 arising out of the judgment     and order dated May 21,    1956, of the Court of Additional Sessions Judge at Ludhiana in Trial No. 17 of 1956 and    Case No. 9 of 1956.

Gyan Chand Mathur, for the appellant in Criminal Appeal No. 22 of 1957.

R. L.     Kohli, for the appellant in Criminal Appeal No. 23 of 1957.

Gopal     Singh and -T.    M. Sen, for the respondent in    both the appeals.

1957.     April 10. The Judgment of the Court was delivered by

J. GAJENDRAGADKAR J.-Harbans     Singh,     Gurdial Singh     and Sarwan    Singh were charged in the court of    the learned Additional Sessions Judge -at Ludhiana with having committed an offence of murder punishable under s. 302 of the Indian Penal Code. The case against them was that they, along with Banta Singh, the approver, had intentionally     caused     the death of Gurdev Singh by inflicting injuries on his person with kirpan, toki and dang on November 23, 1955, within     the limits of the village Sohian, police station Jagraon.     The learned trial judge held that the charge framed against     all the three accused had been proved beyond a reasonable doubt. That is why he convicted them of the offence    charged     and sentenced each one of them to death. On appeal to the    High Court of Punjab, the order of conviction and sentence imposed against Harbans Singh and Sarwan Singh was confirmed whereas the order of conviction and sentence against Gurdial Singh was set aside and he was ordered to be acquitted     and discharged. Accused No. 1, Harbans

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Singh,    and accused No. 3, Sarwan Singh, have come to    this Court in appeal by special leave.

It would be convenient to state the prosecution case    very briefly     at the outset. Gurdev Singh, the victim of     the assault, was the brother of accused No. 1. It appears    that the father of the two brothers had left the Ga village    some years ago and is apparently no longer alive. Harbans Singh was a    shirker     and a waster and that     made Gurdev Singh impatient. When Gurdev Singh tried    to improve Harbans Singh, Harbans Singh resented Gurdev Singh's efforts and his irritation and annoyance had reached such a stage and extent that he began to plan his murder. According to the story of the prosecution, Harbans Singh got in touch with his friends Sarwan Singh and Gurdial Singh and requested them to assist him in his plan to get rid of his brother. It appears    that Gurdial Singh    himself was on inimical     terms    with Gurdev Singh because he was angry with Gurdev Singh for having     cut jokes with his sister.    A few days before the commission of the offence, Harbans Singh and Sarwan Singh were sitting on a canal bank near their village enjoying their     drink    when Banta Singh joined them. He was also asked to     partake of the liquor and was told about the plan to murder Gurdev Singh.     A few days later there was another meeting between these three men and it was agreed that an attempt should be made to procure arms for the purpose of carrying out     the plan Rakha was accordingly approached and as a result of the negotiations he sold a country-made pistol and a cart- ridge for Rs. 40 to Sarwan Singh. Rakha was also requested to join the conspiracy.     He was however unwilling to respond and though he did not openly say 'no' to the proposal, at the material time he refused to join the conspirators.     On the day of the offence itself, Sarwan Singh, Gurdial Singh and Banta Singh went by a bus together and got down near the road which leads to the village Sohian.     Then they proceeded on foot until they met Harbans Singh near the canal minor. Harbans     Singh    then advised his co-conspirators to    hide themselves in    the bushes. He then fetched a bottle of liquor and all the four drank from it, This

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took them to sunset time, when Harbans Singh left the place and promised his friends that he would send his brother to the place where they would lie concealed. He also told them that he would give a signal as soon as his brother would approach the place of their concealment by clapping     his hands. In accordance with     this plan Harbans Singh persuaded his    brother     to go    ahead.     Sarwan     Singh    then coughDed and this raised an apprehension in the mind of Gurdev    Singh that people for him. So he some may be lying in wait called out to his brother Harbans Singh and    said that he suspected that there were    some people there. Harbans     Singh     assured him that he     would    soon join. Meanwhile, according to plan, the three assailants emerged from their place of concealment and attacked Gurdev Singh. Harbans     Singh also arrived on the scene and joined them in the assault. The prosecution case is that Harbans Singh was armed with a    kirpan,     Gurdial Singh    with a     lathi,     the approver Banta     Singh with a toki and Sarwan Singh used a kirpan.     The attack was undoubtedly brutal and callous     and it resulted in as many as 69 incised wounds and two contused injuries which had been caused with a blunt weapon. Having assaulted (Gurdev Singh in this brutal manner his assailants ran away.

Harbans     Singh returned to his village and raised a hue     and cry. He complained that his brother had been carried    away by a number of persons and he pretended that his brother's assailants were Darshan Singh, Jagat Singh, Gurnam Singh and Banta Singh of the village Pona. The villagers-, however, found that Harbans Singh was not keen on joining them in rendering help to the victim or in pursuing his     assailants. Finally, however, he     was persuaded     to accompany     the villagers and the villagers in the company of Harbans Singh reached     the stop where Gurdev Singh's body was found in a pool of blood. Thereafter Harbans Singh went to the police station     and made a report of the occurrence at about 10-30 p.m. He alleged in his report that his brother had    been murdered by the aforesaid four persons of the     village of Pona. Purporting to act on this report, the police 957

reached the spot in the early hours of the next morning     and so the investigation commenced.

It is clear that the police had their own doubts about     the truth of the report made by Harbans Singh from the start and they suspected that it was Harbans Singh and his friends who were concerned with the commission of this foul offence. Sarwan Singh, Gurdial Singh and Banta Singh were arrested on November 25 and Harbans Singh on    November 26.     The investigating officer recovered from the person of Sarwan Singh a blood-stained shirt and chadar and obtained    from Sarwan Singh's     house a pistol and an    empty cartridge on information given by him from the person of Gurdial Singh a blood-stained turban was recovered and the information given by him led to the discovery of a stick or lathi. This lathi was blood-stained. From Banta Singh's person a blood- stained     chadar was recovered and the information given by him led to the discovery of a kirpan and a toki from a    well in which they     were thrown after the     commission of     the offence. The     prosecution also alleges that, on     the information given by    Harbans     Singh,     some blood-stained clothes     were recovered from Gurdev Kaur sister     of Gurdial Singh.     It appears that, on    November 30, Sarwan Singh offered to make a confessional statement and the confession was in fact recorded on the same day. On December 2, Banta Singh was given pardon and made an approver. That in brief is the prosecution case.

All the three accused deny any connection with     the commission of the offence. The learned Sessions Judge    held that Banta Singh was a reliable witness. Since Banta Singh is, however, an approver the learned Judge considered whether     his    evidence had     received the     requisite corroboration in material particulars and he held that it did. The learned Judge also found that the confession    made by Sarwan Singh was voluntary and true and in    his opinion the evidence of Rakha and the other circumstantial evidence with regard to the blood-stained clothes of the respective accused     persons and the recovery of the weapons afforded sufficient corroboration in material particulars. That is how he reached the conclusion that the charge of murder has 958

been proved against all the three accused. On appeal it has been held by the learned Judges of the High Court of Punjab that the evidence given by the approver, Banta Singh, against     accused Gurdial Singh was very discrepant     and therefore unreliable and so they found that the case against Gurdial Singh    had not been proved beyond a reasonable doubt.     In the result Gurdial Singh was acquitted; but     the view taken by     the learned Judges in respect of     the prosecution case against Harbans Singh and Sarwan Singh     was that the approver's evidence supplied the basis for     the prosecution case against them and since it was    corroborated by circumstantial evidence to which reference    has already been made and by the confession of Sarwan Singh, there     was no difficulty    in confirming the order     of conviction     and sentence passed against these two accused persons. It is this view which is challenged before us by the     two appellants in the present appeals.

Since the present appeals have been filed by special leave under Art. 136 of the Constitution, it would normally not be open to the appellants to raise questions of fact before us. Prima facie the orders of conviction and sentence passed against     the appellants are based on concurrent findings of fact and we would be slow to interfere with such findings unless we are satisfied that the said findings are vitiated by errors of law or that the conclusions reached by     the courts    below are so patently opposed to well     established principles of     judicial approach, that they can     be characterised as wholly unjustified and even perverse. On behalf of Harbans Singh, it has been urged. before us by Mr. Kohli that the judgment of the High Court of Punjab suffers     from a serious infirmity in that, in dealing    with the evidence of the approver, the learned Judges do     not appear    to have addressed themselves    to the     preliminary question as to whether the approver is a reliable witness or not. The problem posed by the evidence given by     an. approver has been considered by the Privy Council and courts in India on several occasions.     It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under 959

the Indian Evidence Act. There can be, however, no doubt that the very     fact that he     has participated in    ,the commission of the offence introduces a serious stain in     his evidence and courts are naturally reluctant to act on    such tainted     evidence unless it is corroborated    in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story -or even all     the material particulars. If such a view is adopted it would render    the evidence of the accomplice    wholly    superfluous. On the other hand, it would not be safe to act upon    such evidence merely because it    is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance    that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering     the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver    then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be     considered. In other words, the appreciation of an approver's evidence has to satisfy a double test.    His evidence must show    that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This    test is special to the cases of weak or tainted evidence    like that of the approver. Mr. Kohli's contention is that since the learned Judges of the High Court of Punjab have failed to address themselves     to this initial question, their appreciation of the approver's evidence suffers from a serious infirmity. In our opinion, this contention is well- founded. We have carefully read the judgment delivered by the High Court but we find no indication in the whole of the judgment that the learned Judges considered the character of the approver's evidence and reached the

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conclusion that it was the evidence given by     a reliable witness. The only statement which we find in the judgment dealing with this topic is that " since the main evidence in the case consists of the testimony of the approver it is necessary to consider the case of each J. appellant individually.    " With respect, this observation is open to the criticism which has been made against it by Mr. Kohli. The argument that the character of the approver's evidence has not been    considered by    the High Court cannot be characterised as merely academic or    theoretical in     the present     case because, as we will presently point out,     the evidence of the approver is so thoroughly discrepant that it would be difficult to resist the conclusion that     the approver in the present case is a wholly unreliable witness. Indeed    it may be legitimate to point out that    the learned Judges    of the High Court have     themselves criticised     the evidence of the approver in dealing with the     prosecution case against Gurdial Singh and have ultimately     found    that the account given by the approver is unreliable and, though there was circumstantial evidence which raised an amount of suspicion against Gurdial Singh, that would not be enough to sustain his conviction.     It seems to us that if it was found that the approver's account against one of    the accused persons     was wholly discrepant, this finding itself should inevitably have led the court to scrutinise his evidence in respect     of the other accused persons with greater caution. Besides, it is somewhat unfortunate that the attention of the learned Judges of the High Court    was presumably     not drawn to the    still more serious discrepancies in     the evidence of the approver in regard to the part assigned to Harbans     Singh    in the commission of the offence. In     the evidence' given by the approver before the trial court, he has definitely and unequivocally implicated Harbans Singh in the commission of the offence.     It has been brought out in the cross-examination that in the very first statement    made by the approver before the investigating officer on November 25 he    had made statements about Harbans Singh which     are wholly    inconsistent with the subsequent story. In    this statement, the

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approver had definitely stated that only the three of    them were concerned with the commission of the offence, himself, Sarwan Singh and Gurdial Singh.     He had also stated clearly in the     said statement that Harbans Singh did not join in murdering Gurdev Singh.     It is remarkable that in regard to almost    every material particular about the part played by Harbans     Singh    in the commission of the offence the story disclosed by the approver at the trial is inconsistent    with his first statement before the police.    In his statement at the trial, the approver assigns Gurdial Singh the possession of lathi and according to him Gurdial     Singh    subsequently took up the kirpan from Sarwan Singh and murdered Gurdev Singh after which Harbans Singh himself gave a blow with it at the     neck of the victim. In his statement     before     the police, the approver had said that Gurdial Singh had carried a kirpan. We are deliberately not referring to the several other minor discrepancies which have been brought out in the evidence of the approver in his cross-examination. In     our opinion, the discrepancies brought out in the    evidence of the approver qua the prosecution case against Gurdial Singh coupled with the more serious discrepancies in his evidence in the prosecution case against Harbans Singh lead to    only one conclusion and that is that the approver has no regard for truth. It is true that in his second statement recorded on November 29, the approver substantially changed his first story and involved Harbans Singh in the commission of     the offence, and in that sense, his second statement can be said to be    consistent with his evidence at the trial. But we cannot lose sight of the fact that, within three days after the recording of his second statement, he was granted pardon and his statement was recorded under s. 164 of the Code of Criminal Procedure on the same day. Therefore it would be legitimate for     the accused to contend that the additions made by the approver in his subsequent statement may be     the result    of promise held out to him that he would be granted pardon.     Apart     from this consideration, in view of     the positive statements made by the approver in his first recorded statement, there can be no doubt

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that the subsequent allegations against Harbans Singh     are improvements and are the result of his decision to involve Harbans Singh in the commission of the offence.     If this was a case     where    the statements     made by the    approver on subsequent occasions merely added details which were     not included in the first statement, it may perhaps have been a different matter. It is true that omissions have not always the same significance as contradictions; but in the present case it is patent that the two sets of statements are wholly inconsistent and irreconcilable and that obviously leads to a very serious infirmity in the character of the witness. It is    indeed    to be regretted that the attention of     the learned     Judges     of the High Court was not drawn to    this aspect    of the matter and they were not invited to consider the initial question    as to whether the approver, Banta Singh, was a reliable witness at all. Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the    more before    the question of corroboration of his    evidence is considered by criminal courts.

If the evidence of the approver is    discarded as being unreliable the case against Harbans Singh must inevitably fail. No doubt there are some circumstances against him on which the prosecution relies. The evidence of Rakha (P.W.8) would show that Harbans Singh and the other accused persons were concerned     with the purchase of a pistol    from Rakha. Incidentally this pistol has not been used in the commission of the offence at all and that, in the circumstances, it is difficult to explain.     However, the purchase of a pistol from Rakha may merely raise a     suspicion against Harbans Singh but suspicions, however strong, cannot take the place of proof. Harbans Singh had injuries on his person and     the conduct     of Harbans Singh soon after the commission of     the offence was very suspicious.     That    again may raise a suspicion against Harbans Singh but without the basis of the approver's evidence the suspicious circumstances can play no effective part     in a criminal     trial. The discovery of clothes alleged to have been made at

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the place of Gurdev Kaur cannot be pressed into service against     Harbans Singh because Gurdev Kaur herself has     not been examined and the importance of the recovery of a kirpan and a    red scabbard from the     spot cannot obviously be exaggerated. In our opinion, there is no doubt whatever that, if the approver's evidence is rejected as     unreliable, the other evidence on which the prosecution relied against Harbans Singh cannot possibly sustain his conviction of     the offence     of murder. We must,     therefore, hold that     the finding     of the learned Judges of the High Court that     the offence     of murder has been proved against Harbans Singh is vitiated by a     serious infirmity to which we have    just referred and must be reversed.     If the learned Judges    have failed to address themselves to the initial question of     law before    dealing with the merits of the approver and if, in dealing     with his evidence, they have failed to take    into account     the glaring and obvious inconsistencies in     the account     given by the approver, it is open to the appellant to challenge the validity of their conclusion. In     the result,     the appeal preferred by Harbans Singh must be allowed, the order of conviction and sentence passed against him must be set aside and    he must be acquitted and discharged.

That takes us to the case of accused No. 3, Sarwan Singh. We have already pointed out that the order of conviction passed against Sarwan Singh is in the words of the judgment of the     High Court based on the fact that " there is     the evidence of the approver and it is corroborated in every particular by    his own confessional statement    ". Besides, there is other circumstantial evidence to which reference has already been made in narrating the prosecution story at the beginning of this judgment.     It would at once be noticed that, if we come to the conclusion that the approver is an unreliable witness, the basis of the evidence of     the approver on which the learned Judges of the High Court proceeded even while dealing with the case against Sarwan Singh has been shaken.    If, in our opinion, the approver is unworthy of credit, then it would not be    possible to consider the question

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of the     corroboration that his evidence receives from     the confessional statement made by Sarwan Singh himself. It is, however, true that Sarwan Singh has made a confession and in law it     would be open to the court to convict him on    this confession itself though he has retracted his confession at a later stage. Nevertheless usually courts require    some corroboration    to the confessional     statement before convicting an    accused person on such    a statement.    What amount    of corroboration would be necessary in such a    case would always be a question of fact to be determined in     the light of the circumstances of each case. In    the present case, the learned Sessions Judge has considered the question about the voluntary character of the    confession made by Sarwan    Singh and has found in favour of the    prosecution. The judgment of the High Court shows that the learned Judges agreed with the view of the learned    trial Judge mainly because     the evidence of the Magistrate who recorded     the confession appeared to the learned Judges to show that     the confession was     voluntary. It is this view which     is seriously challenged before us by Mr. Mathur on behalf of Sarwan Singh. Prima facie whether or not the confession is voluntary would be a question of fact and we would be reluctant to interfere with a finding on such a question of fact unless we are satisfied that the impugned finding     has been reached without applying the true and relevant legal tests in the matter. As in the case of the evidence given by the     approver, so too unfortunately in the case of     the confession of    Sarwan Singh the attention of    the learned Judges    below does not appear to have been drawn to    some salient and grave features which have a material bearing on the question     about    the voluntary    character of     the confession. Sarwan Singh was arrested on November 25.     His clothes were found blood-stained and he is alleged to    have been inclined    to help the prosecution by    making the statement which led to the    discovery of incriminating articles. All     this happened on the 25th itself and    yet, without any ostensible explanation or justification, Sarwan Singh was kept in police custody until November 30. That is one fact

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which is to be borne in mind in dealing with the voluntary character of his confession. What happened on November 30 is still more significant. On this day he was sent to     the Magistrate to record    his confessional statement.     The evidence of the Magistrate Mr. Grover shows that the accused was produced before him at about 2-30 p.m. He was given about half-an-hour to( think about the statement which he was going to    make and soon thereafter the    confessional statement was recorded.     It is true that the Magistrate     did put to the accused the questions prescribed by the circulars issued    by the     High Court of Punjab.    Even so, when     the learned     Magistrate was asked why he did not give more    time to the     accused before his confessional statement     was recorded, his reply was frank and honest. He said that     the accused     seemed to insist upon making a statement straightaway.    The Police Sub-Inspector who had taken     the accused     to the Magistrate was apparently standing in     the verandah outside in the Magistrate's office. The doors of the office were closed but the fact still remains that     the Sub-Inspector was standing outside. The evidence of     the Magistrate also shows that, soon after the statement     was finished, the Sub-Inspector went to the Magistrate's    room again.    The person of the accused showed some injuries    and. yet the learned Magistrate did not enquire how the accused came to be injured.     It is in the light of these circumstances that the question falls to be considered whether     the confession made by the accused can be regarded as voluntary. It is hardly necessary to emphasize that     the act of     recording confessions under s. 164 of the Code of Criminal Procedure is a very solemn act and, in     discharging his duties under the said section, the Magistrate must    take care to see that the requirements of sub-s. (3) of s.     164 are fully satisfied.    It would of course be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under sub - s. (3) of s. 164 should not be allowed to become a matter of a mere mechanical enquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused 966

wants to make     is in fact and in substance voluntary. Incidentally, we may invite the attention of the High Court of -Punjab to the fact that the circulars issued by the High Court of Punjab in the matter of the procedure to be followed, and    questions to be put to the    accused, by Magistrates recording confessions under s.    164 may be revised     and suitable amendments and additions made in     the said circulars in the light of similar circulars issued by the High Courts of Uttar Pradesh, Bombay and Madras.     The whole object of putting questions to an accused person     who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise     having reference to the charge against the accused person    as mentioned in s. 24 of the Indian Evidence    Act. There can be    no doubt that, when an     accused person is produced before the Magistrate by the investigating officer, it is    of utmost importance that the mind of    the accused person     should     be completely     freed    from any possible influence of the police and the effective way    of securing such freedom from fear to the accused person is to send     him to jail custody and give him adequate time    to consider whether     he should make a confession    at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that     the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him     before     his statement is recorded.    In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over    the matter. Indeed, any Magistrate with enough criminal experience would have immediately decided to give longer time to Sarwan Singh in the present case for the obvious reason that Sarwan Singh appeared to the learned Magistrate to be keen on making a confession straightaway. The learned Magistrate himself has fairly stated that he would

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have given him longer time but for his insistence to make a confession without delay. This insistence on the part of Sarwan    Singh to make a confession immediately    should    have put the learned Magistrate on his guard because it obviously bore,     traces     of police    pressure or     inducement. Unfortunately,    the effect of the failure of    the learned Magistrate to' grant enough time to the accused to consider the matter has not been considered by the learned Sessions Judge and has been wholly ignored by the learned Judges of the High Court. Besides, in neither court below has     any attention been paid to the fact that Sarwan Singh appeared to have been kept    in police custody without     any justification between November 26 and November 30. We    have carefully considered all the relevant facts bearing on    this question and we see no escape from the conclusion that     the failure of the learned Judges of the High Court to take into account these material facts has introduced a serious legal infirmity in their conclusion that the confession made by Sarwan    Singh is voluntary. That is why we think we    must reverse this conclusion.

There is, besides, another fact which is equally fatal to the. prosecution case.    Even if the confession is held to be voluntary, it must also be established that the confession is true and for the purpose of dealing with this question it would be necessary to examine the confession and compare it with the rest of the prosecution    evidence and     the probabilities in the case. In our opinion, some material points mentioned in the confessional statement are not shown to be true. Sarwan Singh says that when Gurdev Singh     was assaulted he and his brother Harbans    Singh were walking together. On the other hand the prosecution story is    that Harbans     Singh had first contacted his accomplices and     had told them that he would send Gurdev Singh towards the    spot where the accomplices would lie in wait for him. The story further is that when Gurdev Singh suspected that there    were some people near about he shouted to     Harbans Singh     and before    Harbans     Singh came on the spot assault     had begun. This part of the prosecution story as deposed to by the 968

approver is inconsistent with the material statement in     the confession. According to the confession, Dial Singh gave a Dang blow to Gurdev Singh on the head from the front.    This statement is not borne out by medical evidence.     There    does not appear to be a corresponding injury on the head of the victim.     Sarwan Singh says that he took the kirpan which was first used by Harbans Singh and gave two blows to Gurdev Singh on his thigh. This statement again is not borne     out by the medical evidence -about the injuries on the body of the victim. Similarly, the statement of Sarwan Singh that the handle of the kirpan was broken and he got     his finger injured with it is not easily reconcilable with the medical evidence about     the injury itself.    Unfortunately these discrepancies between    the confessional statement and     the main prosecution evidence given by the approver have not been noticed by the learned Judges of the    High Court. Indeed,     after     having     found    that the confession     was voluntary,it appears to have been assumed by    the learned Judges    that the confession was true     and that, in     our opinion, is another infirmity in the conclusion reached by the High Court.

That leaves the other circumstances which have been proved against Sarwan Singh to be considered.    There were injuries on his person.    They are thus described by the doctor:- " 1. A superficial incised wound with a scab, 3/8" x 1/12" on the left side of the face, just above the left moustache.

2.An abrasion with a scab 1/2" x 1/4" on the outer surface of the middle digit of the left ring finger.

3. An abrasion with a scab 1/8" x 1/8" on the outer surface of the middle digit of the left little finger.

4.An abrasion with a scab 1/4" x 1/4" on the outer surface of the     terminal inter-digital joint of the left little finger.

All the injuries were simple and of about two days duration. Injury No. 1 was caused by sharpedged weapon and the rest by some blunt weapon."

969

In his cross-examination Dr. Singh admitted that injury     No. I could have been caused by razor blade as suggested by     the counsel for Sarwan Singh and injuries Nos. 2 to 4 could have been caused by rubbing against some hard substance.     In other words, on medical evidence it is difficult to reject the explanation of the accused as unreasonable or palpably untrue.     Then we have the evidence of blood-stains on     the shirt and chadar worn by Sarwan Singh.     If the     explanation given by Sarwan Singh about his injuries is not unreasonable then the presence of blood-stains on his dress cannot be seriously pressed against him.    The evidence of Rakha about the negotiations and purchase of a pistol from him and about the part of Sarwan Singh in that transaction no doubt     may suggest that Sarwan Singh was associated with the criminals but that is very far from proving the charge of murder against him. Incidentally, as we have already observed, if the pistol was purchased it is difficult to understand     why it was     not used. Then we have the evidence of the shoes which were found on the spot. The evidence of the shoe-maker Santa Singh suggests that he had identified the pair of shoes as belonging to Sarwan Singh     that very night. According to him, he has been manufacturing shoes like    this pair though not on a large scale' Unfortunately, in     his examination under s. 342 of the Code, no question had    been put to Sarwan Singh about these shoes.     It is not unlikely that Sarwan Singh may have offered to demonstrate that     the shoes did not fit in with his feet. In any event, failure to give him an opportunity to explain the circumstances by putting     an appropriate question to    him under s.     342 justifies his argument that this circumstance should not be used against him. Besides, like the     evidence given by Rakha, the identity of the shoes would also be a very minor circumstance in relation to the charge of murder for which Sarwan    Singh is being tried.    The result is that, if     the approver's evidence is discarded as unworthy of credit     and his own retracted confession is excluded from consideration as not     being voluntary or true, whatever circumstantial evidence remains is obviously insufficient to 125

970

bring home to Sarwan Singh the charge framed against    him. If that be the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder.     It is no doubt a matter of regret    that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an     element of truth in the prosecution story against both the     appellants. Mr. Gopal Singh contended that considered as a whole,     the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.     We have carefully considered all the arguments which Mr. Gopal    Singh urged before    us; but we do not think it would be    possible to regard    the approver as a reliable witness or to hold    that the confession of Sarwan Singh is voluntary or true. In the result,     the appeal preferred     by Sarwan Singh must be allowed, the order of conviction and sentence passed against him must be set aside and    he must be acquitted     and discharged.

Appeals allowed.

Re: Sarwan Singh vs The State Of Punjab - FIR

First information Report:
The basic purpose of filing FIR is to set the criminal law into motion and not to state all the minute details therein. The information under section 154 of Cr.P.C is generally known a s F.I.R though 'first is not used in the code. F.I.R is not the be all and end all of every criminal case and is not sunstantive evidence . It can be used only for limited purposes, like corroborating the maker thereof or as one of res-gestae or for being tendered in a proper case u/sec 32 (1) of Evidence Act or part of informant's conduct u/sec 8 of Evidence Act. (AIR 1963 AP 252).
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