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CASE NO.: Appeal (crl.)  895 of 2005

PETITIONER: Ram Singh

RESPONDENT: Sonia & Ors

DATE OF JUDGMENT: 15/02/2007

BENCH: B.N. AGRAWAL & P.P.NAOLEKAR

JUDGMENT: JUDGMENT

WITH CRIMINAL APPEAL NO. 894 OF 2005 & CRIMINAL APPEAL NO. 142 OF 2006

B.N. AGRAWAL, J.

       Sonia [A-1] and Sanjiv [A-2], respondents in Criminal  Appeal No. 895 of 2005, were tried and convicted by the trial  court under Section 302 read with Section 34 and Section  120-B of the Indian Penal Code [‘IPC’ for short] and sentenced  to death and to pay a fine of Rs. 2000/- each.  A-1 and A-2  were further convicted under Sections 25(1-B)(b) and 25(1-B(a)  of the Arms Act  respectively and sentenced to undergo  rigorous imprisonment for a period of one year.  A-2 was  further convicted under Section 201 IPC and sentenced to  undergo rigorous imprisonment for three years and to pay a  fine of Rs. 1000/- in default whereof to further undergo  imprisonment for one month.  The sentences were, however,  ordered to run concurrently.  Tried along with A-1 and A-2  were eight other accused persons but they were acquitted by  the trial court for want of evidence. The order of convictions  and sentences gave rise to a murder reference by the Sessions  Judge, Hisar and appeals by both the accused before the  Punjab & Haryana High Court.  By the impugned judgment,  while upholding their convictions under Section 302 read with  Section 34 and Section 120-B of the IPC and other provisions,  the High Court has commuted the sentence of death into life  imprisonment.   Hence these appeals by special leave.           While Criminal Appeal Nos. 895 of 2005 and 894 of 2005  have been preferred by Ram Singh, brother of deceased \026 Relu  Ram, and the State of Haryana respectively for enhancement  of sentence from life imprisonment to death, Criminal Appeal  No.142 of 2006 is by the accused assailing the impugned  judgment of their convictions and sentences.  The case of the prosecution is that on 23.8.2001 when  Jeet Singh [PW 57], one of the employees of deceased - Relu  Ram, and A-2 were sitting at the Saw Mill located by the side  of Farm House of Relu Ram, a telephone call was received by  A-2 from A-1 conveying her desire to celebrate Priyanka’s  [deceased sister of A-1] birthday at the Kothi at Litani Mor  [place of occurrence] and that she would bring her from the  hostel of Jindal School at Hisar \026 the school she was studying  in.  At about 9.30 p.m.  A-1 along with Priyanka reached home  in a jeep.  Thereafter, between 11 \026 12 p.m., on hearing some

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noise of footsteps, PW 57, who was present at the Farm  House, woke up and noticed that light in the room, where the  spare parts of tractors etc. were kept, was on and upon  inquiry found that A-1 was there in the room and he saw her  taking a rod to the first floor which rod is used for  raising/tilting the tractor from the ground.  He again heard  the noise of explosion of fire works, but, thinking that  Priyanka’s birthday was being celebrated, he went to sleep.    PW 57 further stated that on 24.8.2001 at about 4.45 a.m.   when he was sitting on his cot, he saw A-1 coming down and  taking the Jeep at a very fast speed and returning after half an  hour.  Thereafter, at about 5.30 a.m.  Ram Phal, the Milk  Vendor, brought milk, but on seeing him coming upstairs, A-1  instructed him to leave the milk on the ground floor.  At about  6.15 a.m. the School Van came to take Lokesh [deceased], son  of Sunil [deceased], but it left after waiting for some time as  Lokesh did not come down despite blowing of horn.  PW 57  thereafter sent Rohtas, another servant of Relu Ram, to the  first floor for bringing Lokesh down for being dropped in the  School on motor-cycle.    Upon being called by Rohtas, PW 57  went to the first floor and found that A-1 was lying in the  porch with froth coming out of her mouth and was mumbling  that she be saved and Sanjiv [A-2] be called.  Reaching inside  the house, PW 57 found that Relu Ram [father], Krishna  [mother], Sunil [brother], Shakuntala [sister-in-law], Priyanka  @ Pamma [sister], Lokesh [nephew] and Shivani and Preeti  [nieces] of A-1 had been murdered in different rooms.  He also  found that Shakuntla’s hands and feet were tied with cot.    The tractor rod that PW 57 had seen A-1 removing from the  room on the previous night was lying on the bed of A-1.   Noticing a letter [Suicide Note \026 Ext. 227] lying on the bed of A- 1 written in Hindi, PW 57 picked up the same and left for the  Ulkana Police Station.  While giving description of what had  been seen by him at the place of occurrence and handing over  the said Suicide Note to S.I. Vinod Kumar,  PW 59, PW 57 also  stated that  it may be possible that A-1 under a conspiracy  had either administered some poisonous substance or made  them to inhale poisonous thing and upon becoming  unconscious they had been murdered.  It was further stated  by him that about six months prior to this incident, A-1 with  an intention to kill deceased Sunil had also fired a shot from  the licensed gun of deceased Relu Ram over a dispute of  property, but the matter was hushed up in the house. On the basis of sequence of events that had taken place  at the place of occurrence from the evening of 23rd August  until 24th morning, described by PW 57 to PW 59 and the  Suicide Note alleged to have been written by A-1, FIR was  registered in the Ulkana Police Station at 8.15 a.m.  by PW 59  wherein contents of Suicide Note were also reproduced.         On completion of the investigation, chargesheet was  submitted against A-1, A-2 and eight other accused persons,  cognizance taken and they were committed to the court of  Sessions to face trial.          Defence of the accused persons was that they were  innocent and falsely implicated.  The stand taken by A-1 was  that she was picked up by the police of CIA Staff on 24th  August from Faridabad and was brought to Hisar, kept in  illegal custody, tortured and threatened that in case she would  not make the statement according to what they say, her only  son would be killed and thereafter  they forcibly obtained her  signatures on blank papers.  A-2 took the defence, inter alia,  that he was falsely implicated at the instance of the employees  of Relu Ram who had embezzled a lot of money of his father- in-law and by those people who had  taken a loan from him   and that it were they who had committed the murder of Relu

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Ram and his family members. So far as A-1 is concerned, the prosecution case  principally rests on (1) the Suicide Note [Ext. 227] alleged to  have been written by her wherein she admitted having  murdered eight persons, including three tiny tots, who were  none other than her own immediate family members, (2) the  judicial confession [Ext. 187] made by her to the Magistrate in  the hospital where she was removed by the Police immediately  after the occurrence and (3) bloodstained clothes of A-1, blood  group of which tallied with the blood group of deceased Sunil  and Lokesh.  So far as A-2 is concerned, the case of the prosecution  revolves around circumstantial evidence, extra-judicial  confessions made by him to Sunder Singh, PW.48, and Rajni  Gandhi, Scientific Assistant, PW 17, the result of the  polygraph test to which he was put by the prosecution and the  recoveries made at his instance by the police.   Mr. Sushil Kumar, learned senior counsel appearing on  behalf of the respondents, has submitted that the suicide story  is a total concoction by the prosecution as, even according to  the medical evidence, A-1 did not show any symptom of having  consumed poison, she was not administered any treatment as  such, though prescribed and, therefore, her having not  consumed any poison, there was no reason for her to write the  alleged Suicide Note, as there was no risk to her life, which, he  says, is a document that she was forced to write after having  been tortured in police custody. So far as judicial confession  [Ext. 187] made by A-1 to Pardeep Kumar, Judicial Magistrate,  1st Class [PW 62] is concerned, his submission is that it  is a  piece of evidence which needs to be eschewed from  consideration by this Court on two counts \026 i.e., admissibility  and truthfulness  as the approach of the  recording magistrate   was very casual  and it has not been recorded according to the  procedure prescribed by Section 164 of the Criminal Procedure  Code [‘Cr.PC’ hereinafter]. According to the learned counsel,  non-compliance of Section 164 by the recording magistrate  cannot be cured by Section 463 Cr.P.C. as it cures only the  defect of recording the statement and not its non-compliance.   In support of this submission, reliance has been placed by the  learned counsel upon the decisions in the cases of Nazir  Ahmad v. King Emperor AIR 1936 PC 253, Preetam v. State  of M.P.  (1996) 10 SCC 432, and Tulsi Singh v. State of  Punjab (1996) 6 SCC 63. Learned counsel further submits  that since it is not and cannot be disputed that A-1 was  removed from the place of occurrence to the hospital by Head  Constable Ashok Kumar [PW.25], she came to be under police  custody since the time of her such removal until her formal  arrest by the police on 26th August, 2001 and her movements  having been restricted and she having been kept under direct  or indirect police vigil, as per the legal position, she was in  police custody.  In support of this submission, he has placed  reliance upon Paramhansa Jadab & Anr. Vs. State, AIR 1964  Orissa 144.  Learned senior counsel has also pointed out other  infirmities in the prosecution case, such as tampering of  hospital record [Exts. P-193 and P-192], non-lifting of  fingerprints from the iron rod used to commit the crime and  ante-timing of FIR.          On the other hand, Mr.K.T.S. Tulsi, learned senior  counsel appearing on behalf of the appellant in Criminal  Appeal No. 895 of 2005 has submitted that in view of  admission by A-1 in the Suicide Note as well as in the judicial  confession [Ext. 187] made to PW 62 of having committed the  murder and handwriting on the Suicide Note having been  proved to be that of A-1, there is no scope left for doubting the  veracity of the prosecution case.  It has been further

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submitted by Mr. Tulsi that insofar as judicial confession  recorded by PW.62 is concerned, it was recorded according to  the procedure set out in Section 164 Cr.P.C. and that the  alleged breach of Section 164(2) i.e., failure of magistrate to  record reasons to believe that her statement was voluntary is a  defect curable by Section 463 of the Cr.P.C. and is covered by  a decision of a 3-Judge Bench of this Court in the case of  Babu Singh vs. State of Punjab, [1963] 3 SCR 749.  Adopting  the line of argument identical to that of Mr. Tulsi, Mr. U.U.  Lalit, learned senior counsel appearing on behalf of the State,  submitted that even if there is a violation of Section 164  Cr.P.C., the Court can admit such an evidence as the violation  of that Section is cured by Section 463 Cr.P.C. if it had not  injured the accused in his defence on the merits.           We shall first deal with the Suicide Note allegedly written  by A-1. PW 57 \026 the informant \026 while lodging the FIR and in  his evidence stated that the Suicide Note was picked up by  him from A-1’s bed and thereafter he left for the Ulkana Police  Station to lodge the FIR.   It was handed over by him to PW.59  who, on the basis of  sequence  of events narrated by PW.57  that had taken place at the place of occurrence and on the  basis of  Suicide Note, registered the FIR, making the Suicide  Note as part and parcel of the FIR by reproducing its contents  therein.  So far as presence of A-1 at the place of occurrence is  concerned, both PW.57 and PW 58  - Amar Singh, another  employee of deceased Relu Ram who was working as  Chowkidar and posted at the main gate of Kothi at Litani Mor  [the place of occurrence], in their testimony have stated that  they had seen A-1 coming to the Kothi at Litani Mor along with  deceased Priyanka@Pamma in a Jeep between 9-10 p.m. on  23rd  August, 2001, going out of the Kothi in the early hours of   24th August in a self-driven jeep at a very fast speed and  returning after half an hour.  This fact is corroborated by the  evidence of Head Constable Dharambir Singh [PW.46] who, in  his evidence, has stated that while he was on patrolling duty  at Surewala Chowk from 2 a.m. to 6 a.m. on 24th August,  2001, he had seen A-1 at 5.30 a.m. coming from the side of  Barwala in a Tata Sumo driving at a very fast speed.  The  evidence, which further lends support to this fact, is that of  Constable Ashok Kumar [PW 25] and Chhabil Das, PW.64.   PW.25, who was asked by PW.59 along with other police  personnel to reach the place of occurrence, stated that on  reaching the spot and seeing A-1 with froth coming out of her  mouth, he removed and admitted her to the Janta Hospital at  Barwala.   PW.64, who happened to be present at the place of  occurrence, has stated that on seeing PW.25 taking A-1 to the  hospital, he accompanied him to the hospital.  The application  [Ext. P.152] moved by PW.25 to the doctor on duty with regard  to the fitness of A-1 to make the statement and also the indoor  chart [Ext. P.193] which bears the signature of PW. 64 depict  that she was brought by PW.25.  Mr. Sushil Kumar has drawn  our attention to the omission made by PW.25 in his evidence  that this witness has nowhere stated that he was accompanied  by PW.64.  This omission by PW.25, in our view, does not  affect the case of the prosecution, especially in view of the fact  that the indoor chart of the hospital bears the signature of  PW.64. Therefore, there is overwhelming evidence to show the  presence of A-1 at the place of occurrence on the intervening  night of 23rd and 24th August and in the early hours of 24th  August, 2001.   The trial court and the High Court have relied  on the evidence of PW 57, PW 58, PW 46, PW 25 and PW 64  after close and careful scrutiny of the same. We have on our  own considered the evidence on the point and we are satisfied  that the view taken by the trial court and the High Court is

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correct one.  The factum of A-1’s presence at the place of occurrence  having been established, we now proceed to discern whether  the Suicide Note was fabricated one.  In order to verify the  handwriting on the Suicide Note to be that of A-1, on  10.9.2001 SI\026Ajit Singh [PW 27] moved an application before  Balraj Singh [PW.26], the then SDM, Hisar, for taking  specimen signature and handwriting of A-1, which were taken  and sent to FSL, Madhuban for analysis. According to the  report submitted by FSL, Madhuban, in this regard, the  handwriting on the Suicide Note tallied with the specimen  handwriting.           A bare perusal of Suicide Note which was addressed by  A-1 to none other than A-2 [her husband], would show that in  the very first line she has confessed of having eliminated  everybody and that she was ending her life as well.  In this  very letter of hers, A-1 has admitted having written it  immediately after the occurrence.  This fact stands proved by  the evidence of PW.57 who in his evidence has stated that he  picked up the said letter from A-1’s bed and thereafter left for  the police station.  Therefore, there was no reason for any of  the police officials to be present at the place of occurrence  from the time the crime was committed until the arrival of the  police officials after the lodgment of the FIR.  Both the courts  below have relied upon the evidence of PW.57 and PW.26 on  this point and we see no reason to disbelieve their testimony.    In this view of the matter, the submission of the learned  counsel that the Suicide Note was fabricated has to be  rejected.  This takes us to the next submission made by Mr. Sushil  Kumar that movements of A-1 having been restricted since the  time of her removal to the hospital until her formal arrest on  26th August, 2001, she was kept under direct or indirect police  surveillance and, therefore, as per legal position, she was  under police custody.  In support of this submission, he has  relied on Paramhansa Jadab & Anr. Vs. The State, AIR 1964  Orissa 144, a decision of a Division Bench of Orissa High  Court.  We have been taken through the evidence of PW 25,  Dr. Jagdish Sethi [PW.52] and PW 62.  PW.25 has stated in his  evidence that on his arrival at the place of occurrence, he saw  A-1 lying in front of the main door under the porch of the first  floor of the house from where she was removed to the hospital.   The factum of admission to the hospital stands proved from  the evidence of PW.52, who was on duty as the Casuality  Medical Officer at the Janta Hospital, Barwala. In his  statement, PW.52 has stated that at the time of her admission  to the hospital, A-1 was unfit to make any statement.  PW.62  in his evidence has stated that at the time of recording of  confessional statement of A-1, no police official was present  either in the room in which the statement was recorded nor in  the vicinity of the hospital which fact has been confirmed in  his evidence by Dr. Anant Ram, PW 32, under whose care A-1  was at the time the judicial confession was being recorded and  who was also present at the time of its recording.  Undoubtedly, movements of A-1 were restricted, but it  happened not because of any direct or indirect vigil kept by  the police authorities, as is the contention of the learned  counsel, but because of the treatment that was administered  to her in the hospital.  In her Suicide Note, A-1 towards the  end has written that after finishing them all she was ending  her life.  PW.52 has also stated that at the time of her  admission hers was a case of suspected poison and, therefore,  she was declared to be unfit to make any statement. There is  not an iota of evidence on record to show that in order to keep  any direct or indirect vigil on the movements of A-1 the police

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personnel remained present in or outside the room in which A- 1 was recuperating or in the hospital since the time of A-1’s  admission until her discharge therefrom or that the police  personnel made frequent visits to the hospital, thereby  restricting A-1’s movement.       In Paramhansa [supra], reliance upon which has been  placed by the learned counsel, the question that arose was  whether the accused, who was formally arrested by the police  on 19.2.1962, could be said to be in police custody from the  moment when his movements were restricted and he was kept  in some sort of direct or indirect police surveillance.  In the  said case, the accused was interrogated on 17.2.1962 and  taken to the office of one Dr. Asthana on 18.2.1962.   Accompanied along with the police personnel were some other  persons and while police personnel left Dr. Asthana’s office  after a while, the accused and other persons who accompanied  the police remained there.  Setting aside the conviction of the  accused under Section 302/34 and allowing the appeal, it was  held at page 148 as under:      "\005. in the circumstances of this case I  would hold that Paramhansa was in  police custody for the purpose of Section  26 of the Evidence Act from the date of  his interrogation by the Inspector on  17.2.1962 and that he continued to be in  police custody when he was brought and  left in Dr. Asthana’s residence on  18.2.1962\005\005.  It is true that when this  appellant made the confession before Dr.  Asthana no police officer was near him.   But some persons who came with the  police in the Police van were left there.   Thus there was indirect control and  surveillance over the movements of the  appellant by the police\005..." Whether one is or is not in police custody could be  discerned from the facts and circumstances obtaining in each  case.  Insofar as the case at hand is concerned, the police  party reached the place of occurrence within 10 minutes of  lodgment of the FIR and PW.25, being aware of the fact that A- 1 had consumed poison and under instructions, seeing A-1  lying in front of the porch, removed her to the hospital.  PW.52  having opined that A-1 was unfit at the time of her admission  in the hospital to give any statement, PW.62 and PW.32 also  having stated in their evidence that none else, except them,  was present in the room in which the statement of A-1 was  recorded and in the absence of any evidence to show that from  the moment of her admission to and discharge from the  hospital the police personnel were either present in the room  wherein A-1 was kept for treatment or even in the vicinity of  the hospital or they made frequent visits to the hospital, it  cannot be said that the A-1’s movements were restricted or  she was kept in some sort of direct or indirect police  surveillance and that she was in police custody for the  purpose of Section 26 of the Evidence Act.   Therefore, in our  view, Paramhansa [supra] is of no help insofar as A-1 is  concerned.  Turning now to the next submission of learned counsel  appearing on behalf of the accused as to the judicial  confession [Ext.187] made by A-1 before PW.62, it would be  useful to refer to relevant provisions in the Criminal Procedure  Code that deal with the recording of a judicial confession by a  judicial magistrate and see whether the judicial confession  recorded by PW.62 of A-1 is according to the procedure  prescribed by these provisions or whether any violation thereof

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has been made by the magistrate while recording it.  The  relevant Sections in the Cr.P.C. are Sections 164, 281 and  463. Sub-section (2) of Section 164 Cr.P.C. requires that the  magistrate before recording confession shall explain to its  maker that he is not bound to make a confession and if he  does so it may be used as evidence against him and upon  questioning the person if the magistrate has reasons to believe  that it is being made voluntarily then the confession shall be  recorded by the magistrate. Sub-section (4) of Section 164  provides that the confession so recorded shall be in the  manner provided in Section 281 and it shall be signed by its  maker and the recording magistrate shall make a  memorandum at the foot of such record to the following effect: "I have explained to [name] that he  is not bound to make a confession  and that, if he does so, any  confession he may make may be  used as evidence against him and I  believe that this confession was  voluntarily made.  It was taken in  my presence and hearing, and was  read over to the person making it  and admitted by him to be correct,  and it contains a full and true  account of the statement made by  him.

               [Signed] Magistrate"  Sub-section (1) of Section 463 provides that in case the  Court before whom the confession so recorded is tendered in  evidence finds that any of the provisions of either of such  sections have not been complied with by the recording  magistrate, it may, notwithstanding anything contained in  section 91 of the Indian Evidence, Act, 1872, take evidence in  regard to such non-compliance, and may, if satisfied that such  non-compliance has not injured the accused in his defence on  the merits and that he duly made the statement recorded,  admit such statement.         In the case on hand, the application that was made to  PW.62 was for recording a dying declaration as A-1 was  suspected to have consumed poison. Learned counsel  appearing on behalf of the accused submits that as there was  no danger to the life of A-1, there was no reason for the  prosecution to call PW.62 for recording dying declaration of A- 1.  We have perused the   Indoor Charts of Janta Hospital,  [Exts. 192 and 193] which clearly depict that hers was a case  of suspected poison.  We have also been taken through the  evidence of Dr. Jagdish Sethi, PW.52, who, in his testimony,  has also stated that A-1 was admitted to the Janta Hospital in  the morning of 24th August as a suspected case of poison and,  therefore, she was declared to be unfit to make any statement.    In our view, the prosecution rightly sent for PW.62 for  recording dying declaration of A-1.    Before adverting to the three decisions relied upon by the  learned counsel for the accused, we shall first analyse the  judicial confession (Ext.187) recorded by PW 62 and see  whether it has been recorded according to the procedure  prescribed by Section 164.    On 24th August, 2001, upon receipt of an application  moved by Superintendent of Police for recording dying  declaration of A-1 by a magistrate, DSP Man Singh, who partly  investigated the case, approached the Chief Judicial  Magistrate, Hisar, who, in turn, marked the said application to

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Pardeep Kumar, PW.62.   On its presentation to PW.62 by DSP  Man Singh at 10 p.m. the same day, both PW.62 and DSP  Man Singh left for the Janta Hospital, Barwala.   After  reaching the hospital and before recording the statement,  PW.62 first sought opinion of Dr. Anant Ram (PW 32) as to the  fitness of A-1 to make the statement.  As in the opinion of PW  32, A-1 was fit to make the statement, PW.62 proceeded to  record it, which is in question and answer form.  It appears  from Ext. 187 as well as from the questions and answers  which were put to A-1 that PW.62 warned A-1 that she was  not bound to make any confessional statement and in case  she did so, it might be used against her as evidence.  In spite  of this warning, A-1 volunteered to make the statement and  only thereafter the statement was recorded by PW.62.  In the  certificate that was appended to the said confessional  statement PW.62 has very categorically stated that he had  explained to A-1 that she was not bound to make a confession  and that if she did so, any confession she would make might  be used as evidence against her and that he believed that the  confession was voluntarily made.  He further stated that he  read over the statement to the person making it and admitted  by her to be correct and that it contained a full and true  account of the statement made by her. It has been further  stated by PW.62 in his evidence that at the time of recording of  the confession it was he and PW 32, who were present in the  room and there was neither any police officer nor anybody else  within the hearing or sight when the statement was recorded.   It also appears from the evidence of PW.62 that it took about  2-1/2 hours for him to record the statement of A-1, which  runs into 5 pages, which he started at 10.53 p.m. and ended  at 1.28 a.m.  which goes to show that A-1 took her time before  replying to the questions put.  PW.62 has also stated that she  had given the statement after taking due time after  understanding each aspect.  It also appears that he was  satisfied that she was not under any pressure from any  corner. Therefore, it is evident from the certificate appended to  the confessional statement by PW.62 that the confessional  statement was made by the accused voluntarily. Of course, he  failed to record the question that was put by him to the  accused whether there was any pressure on her to give a  statement, but PW.62 having stated in his evidence before the  Court that he had asked the accused orally whether she was  under any pressure, threat or fear and he was satisfied that A- 1 was not under any pressure from any corner, that in the  room in which the said confessional statement was recorded it  was only he and PW.32 who were present and none else and  that no police officer was available even within the precincts of  the hospital, the said defect, in our view, is cured by Section  463 as the mandatory requirement provided under Section  164(2), namely, explaining to the accused that he was not  bound to make a statement and if a statement is made the  same might be used against him has been complied with and  the same is established from the certificate appended to the  statement and from the evidence of PW.62.  Therefore, in the  light of our discussion above, we have no hesitation in holding  that the judicial confession [Ext. 187] having been recorded  according to the procedure set out in Section 164 read with  Section 281 and the defect made while recording the same  being curable by Section 463, it is admissible in evidence. We now advert to the decisions relied upon by the  learned counsel appearing on behalf of the accused. In the  case of Nazir Ahmad [supra] the accused, who was charged  with dacoity and murder, was convicted on the strength of a  confession said to have been made by him to a Magistrate of  the class entitled to proceed under the provisions of Section

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164 relating to the recording of confession.  The confession  was not recorded according to the procedure and the record of  the confession was not available as evidence either.  The  Magistrate, however, appeared as a witness and gave oral  evidence about the making of the confession.   He stated that  he made rough notes of what he was told, got a memorandum  typed from the typist on the basis of the rough notes and  thereafter destroyed the rough notes. The said memorandum,  signed by him contained only the substance but not all of the  matter to which he spoke orally. The recording Magistrate in  the said memorandum just above his signature appended a  certificate somewhat to the same effect as that prescribed in  section 164 and, in particular, stating that the Magistrate  believed that the statements were voluntarily made.  As there  was no record in existence at the material time, there was  nothing to be shown or to be read to the accused and nothing  he could sign or refused to sign. The Judicial Committee held  that the oral evidence of the Magistrate of the alleged  confession was inadmissible. The Magistrate offered no  explanation as to why he acted as he did instead of following  the procedure required by Section 164. When questioned by  the Sessions Judge, the response of the accused was a direct  and simple denial that he had ever made any confession. The  Judicial Committee, considering the abject disregard by the  Magistrate of the provisions contained in Section 164 of the  Code, observed that "where a power is given to do a certain  thing in a certain way the thing must be done in that way or  not at all".   Nazir [supra] is a case where recording Magistrate  did not at all follow the procedure prescribed by Section 164 of  the Code as a result of which, he violated the provisions  thereof whereas in the case on hand the omission that has  been made by the magistrate is his failure to record the  question that he asked to the accused whether she was under  any pressure, threat or fear to make a confession in the  confessional statement and the answer given by A-1.  In his  evidence before the Court, PW.62 stated that he asked A-1  whether she was under any pressure, threat or fear and after  he was satisfied that she was not under any pressure from any  corner, he recorded in the memorandum that was appended to  the confessional statement of A-1 that he believed that the  confession was voluntarily made.  In our view, Nazir [supra]  has no application to the facts of the present case as the  failure of PW.62 to record the question put and the answer  given in the confessional statement has not caused prejudice  to the accused in her defence and is a defect that is curable  under Section 463.  In the case of Preetam [supra] the accused was arrested  on 17.6.1973 and when produced before the Magistrate on the  following day he was sent to police custody, where he  remained until 22.6.1973 and, thereafter he was sent to  judicial custody. Upon being produced before a Magistrate on  25.6.1973 for recording his confession, he was given two  hours time to reflect.  After cautioning the accused that he  was not bound to make a confession and that if he did so, it  might be used against him, the Magistrate went on to record  his confession. Failure of the recording Magistrate to put  questions to the accused to satisfy himself that the confession  was voluntary so as to enable him to give the requisite  certificate under sub-section (4) was termed by this Court as  flagrant violation of the provisions of Section 164(2) and in  utter disregard of the mandatory requirements of the said  section.  Preetam (supra) is a case where the accused  remained in police custody for six days immediately before the  recording of his confession by the Magistrate and, therefore,  could be said to have been pressurized, tortured and harassed

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by the police.  In such a situation, omission on the part of the  recording Magistrate to put a question to the accused to  satisfy himself that the confession was being made voluntarily  can be said to be flagrant violation of law.  However, in the  case on hand, A-1 was removed by the police from the place of  occurrence to the hospital in the morning of 24th August, 2001  where she remained until her arrest by the police in the  evening of 26th August, 2001. It was at 10.58 p.m. on 24th  August, 2001, i.e., during her hospitalization, that PW 62  recorded her confessional statement after cautioning her that  she was not bound to make any confession and that if she did  so, it might be used as evidence against her. PW 62 in his  evidence has stated that it was only after administering the  above caution and satisfying himself that A-1 was making the  statement voluntarily that he proceeded on to record her  confession.  It also appears from his evidence that no police  official was present either in the room in which he recorded  the confessional statement of A-1, or in the hospital.  Therefore, in the absence of any evidence to show that she was  under direct or indirect vigil of the police authorities during  her hospitalization and she having already confessed the crime  in her Suicide Note, the omission on the part of the recording  Magistrate to record the question and the answer given in the  confessional statement cannot be said to be flagrant violation  of law, especially in view of the fact that the recording  Magistrate has stated in his evidence that he orally asked A-1  if she was under any pressure, threat or fear and it was only  after satisfying himself that she was not under any pressure  from any corner that he recorded her confessional statement.   In the certificate that was appended to the confessional  statement as well, PW 62 has stated that he believed that  confession that A-1 made was voluntary.  In our view, the  defect committed being curable under Section 463 has not  injured the accused in her defence on the merits and that she  duly made the statement. Similarly, in the case of Tulsi Singh [supra], also relied  upon by the learned counsel for the accused, the recording  Magistrate did not explain to the accused that he was not  bound to make a confession and that if he did so, it might be  used against him, nor did he put any question to him to  satisfy that the confession was being voluntarily made  although, an endorsement to this effect was made by him in  the certificate that was appended to the confessional  statement.  This court, while setting aside the conviction and  sentence recorded against the accused under Section 302 IPC,  held that the special court was not at all justified in  entertaining the confession as a voluntary one, observing that  mere endorsement would not fulfill the requirements of sub- section (4) of Section 164.  This case too has no application at  all to the facts of the present case for two reasons \026 firstly, in  this case too the appellant remained in police custody for a  week and secondly, it is a case in which the recording  Magistrate neither explained to the accused that he was not  bound to make a confession and if he did so, it might be used  against him nor satisfied himself upon questioning the  accused that the confession was being voluntarily made.  In  the case on hand, PW 62 in his evidence has stated that he did  ask the accused the question whether she was under any  pressure, threat or fear and only after satisfying himself that  she was not under any, that he proceeded on to record her  confessional statement.  Therefore, in view of our above discussion, the three  decisions relied upon by the learned counsel for the accused  in the cases of Nazir (supra), Preetam (supra) and Tulsi  (supra) are of no help to the accused.

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In the case of Babu Singh [supra], reliance on which has  been placed by Mr. Tulsi, appearing on behalf of the appellant  in Crl. Appeal No.895 of 2005, a 3-Judge Bench of this Court,  while dealing with the question whether non-compliance of the    provisions of Section 164 or Section 364 [Section 281 of the  new Code] is a defect which could be cured by Section 533  [Section 463 of the new Code] observed at page 759 thus:- "\005\005\005.Section 533(1) lays down that if  any Court before which a confession  recorded or purporting to be recorded  under Section 164 or Section 364 is  tendered or has been received in evidence  finds that any of the provisions of either  of such sections have not been complied  by the magistrate recording the  statement, it shall take evidence that  such person duly made the statement  recorded; and it adds that  notwithstanding anything contained in  Section 91 of the Indian Evidence Act,  1872 such statement shall be admitted if  the error has not injured the accused as  to his defence on the merits. Mr. Khanna  contends that the magistrate has in fact  given evidence in the trial court and the  evidence of the magistrate shows that the  statement has been duly recorded; and  he argues that unless it is shown that  prejudice has been caused to the accused  the irregularity committed by the  magistrate in not complying with Section  364(3) will not vitiate the confessions nor  will it make them inadmissible. There is  some force in this contention\005... But for  the purpose of the present appeals we are  prepared to assume in favour of the  prosecution that the confessions have  been proved and may, therefore, be  considered on the merits if they are  shown to be voluntary and that is the  alternative argument which has been  urged before us by Mr. Rana."

After observing that the confessions were duly recorded,  the Bench proceeded to discern from the factual matrix of the  case whether the confessions were voluntary or not and taking  note of three unusual features qua the confession recorded,  namely, (1) that the accused was kept in the police custody  even after the substantial part of the investigation was over;  (2) that the confession so recorded did not indicate as to how  much time the accused was given by the magistrate before  they made their confessions and  (3) that the magistrate who  recorded the confession had taken part in assisting the  investigation by attesting recovery memos in two cases, the  confessional statement of the accused was excluded from  consideration.  It was observed at page 764 thus: "\005...Having regard to these features of the  case we are not prepared to uphold the finding  of the High Court that the confessions made by  the appellants can be safely treated to be  voluntary in the present case. If the  confessions are, therefore, excluded from  consideration it is impossible to sustain the  charge of murder against either of the two  appellants. In a case where the charge of

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murder was founded almost exclusively on the  confessions it was necessary that the High  Court should have considered these relevant  factors more carefully before it confirmed the  conviction of the appellants for the offence  under Section 302 and confirmed the sentence  of death imposed on Babu Singh. In our  opinion, if the confessions are left out of  consideration, the charge of murder cannot be  sustained\005.."

The three unusual features noticed by the Bench in Babu  Singh [Supra] impelled the learned Judges to exclude from  consideration the confessional statement made before the  magistrate by the accused after having observed that the  confession was admissible in evidence. As the charge of  murder was founded exclusively on the confession, both the  accused persons were acquitted of the charge under Section  302/34 IPC.     In our view, the factual matrix in Babu Singh [supra] was  distinct from the one with which we are dealing.  In Babu  Singh, both the accused remained in police custody for a long  time and even after the substantial portion of the investigation  was over.  If one were or held to be in police custody, question  of pressure, threat or fear would arise.  We have already held  that in the facts and circumstances of the present case, A-1  cannot be said to be in police custody during her  hospitalization and, therefore, question of her being  pressurized, threatened or put under any kind of fear does not  arise.   In the case of State of U.P. v. Singhara Singh & Ors.,  AIR 1964 SC 358, a 3-Judge Bench of this Court observed that  if the confession is not recorded in proper form as prescribed  by Section 164 read with Section 281, it is a mere irregularity  which is curable by Section 463 on taking evidence that the  statement was recorded duly and has not injured the accused  in defence on merits.  It was observed at page 362 thus:- "What S.533 (Section 463 of the new  Code), therefore, does is to permit oral  evidence to be given to prove that the  procedure laid down in S. 164 had in fact  been followed when the court finds that  the record produced before it does not  show that that was so. If the oral  evidence establishes that the procedure  had been followed, then only can the  record be admitted. Therefore, far from  showing that the procedure laid down in  S. 164 is not intended to be obligatory,  S.533 (Section 463 of the new Code)  really emphasises that that procedure  has to be followed.  The section only  permits oral evidence to prove that the  procedure had actually been followed in  certain cases where the record which  ought to show that does not on the face  of it do so."

       In the light of the above discussion, we are of the view  that Ext.187 is admissible, having been recorded according to  the procedure prescribed under law and the same is voluntary  and truthful.  Turning now to the medical evidence, Dr. Sanjay Sheoran  [PW.1], Dr. R.S. Dalal, [PW.2], and Dr. Arun Gupta [PW.15],  who conducted the autopsy on the dead bodies of the

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deceased, have opined that the injuries found on the persons  of the deceased were ante mortem in nature, were sufficient to  cause death in ordinary course of nature and that injuries  could be caused with the iron rod. We have already referred to  the testimony of PW 57 wherein he stated that he had seen A- 1 removing the iron rod from the store room at the place of  occurrence on the night of 23rd August, 2001 which iron rod  was recovered from the bed of A-1 at the place of occurrence  by the prosecution.  The medical evidence that injuries could  be caused with the iron rod, the statement of PW.57 that he  had seen A-1 removing the iron rod from the store room at the  place of occurrence and its recovery from the bed of A-1 leave  no scope for any doubt about the veracity of the prosecution  case as against A-1. Finding of bloodstains on the salwar of A- 1 and its matching with the blood group of deceased Sunil and  Lokesh further strengthens the case of the prosecution.    Insofar as other submissions made by learned counsel  appearing on behalf of the accused qua ante-timing of FIR,  tampering of Exts. 193 and 194 and non-lifting of finger prints  are concerned, we need hardly add anything to the exhaustive  discussion in the elaborate judgments rendered by the trial  court and the High Court while dealing with identical  submissions.   As a result of our above discussion, we hold that the  case against A-1 has been proved by the prosecution beyond  reasonable doubt and, therefore, order of conviction of A-1  passed by the trial court and upheld by the High Court is  unassailable.  We now proceed to consider the case of Sanjiv [A-2],  husband of A-1, whose case revolves around the  circumstantial evidence, apart from extra-judicial confessions  made by him to Sunder Singh, PW 48 and Dr. Rajni Gandhi,  PW.17, the result of the polygraph test and the recoveries  made at his instance.   Insofar as circumstantial evidence as against A-2 is  concerned, the courts below have very elaborately discussed  the material produced by the prosecution while accepting each  of the circumstances.  In the normal course, there would have  been no need for us to go into these circumstances as  elaborately as was done by the two courts below in an appeal  filed under Article 136 of the Constitution of India, especially  when the finding qua conviction is concurrent.  However,  taking into consideration that the accused were awarded death  sentence by the trial court, which has been converted into life  imprisonment by the High Court, and that the case in hand is  one of circumstantial evidence, we think it appropriate and in  the interest of justice to reappreciate the evidence.  The principle for basing a conviction on the basis of  circumstantial evidence has been indicated in a number of  decisions of this Court and the law is well settled that each  and every incriminating circumstance must be clearly  established by reliable and clinching evidence and the  circumstances so proved must form a chain of events from  which the only irresistible conclusion about the guilt of the  accused can be safely drawn and no other hypothesis against  the guilt is possible. This Court has clearly sounded a note of  caution that in a case depending largely upon circumstantial  evidence, there is always a danger that conjecture or suspicion  may take the place of legal proof. The Court must satisfy itself  that various circumstances in the chain of events have been  established clearly and such completed chain of events must  be such as to rule out a reasonable likelihood of the innocence  of the accused. It has also been indicated that when the  important link goes, the chain of circumstances gets snapped  and the other circumstances cannot in any manner, establish

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the guilt of the accused beyond all reasonable doubts. It has  been held that the Court has to be watchful and avoid the  danger of allowing the suspicion to make the place of legal  proof, for some times unconsciously it may happen to be a  short step between moral certainty and legal proof. It has been  indicated by this Court that there is a long mental distance  between ’may be true’ and ’must be true’ and the same divides  conjectures from sure conclusions.  In the light of the above principle, which principle has  been reiterated in a series of pronouncements of this Court,  we proceed to ascertain whether the prosecution has been able  to establish a chain of circumstances so as not to leave any  reasonable ground for the conclusion consistent with the  innocence of the accused. The first circumstance in the chain is the presence of A-2  at Hisar.  A-1 in her judicial confession made to PW.62 has  stated that she along with A-2 had gone to the Jindal Public  School to pick deceased Priyanka @ Pamma for celebrating her  birthday at the Kothi at Litani Mor, the place of occurrence.    A-1 has further stated that while they were returning, due to  some altercation between A-1 and A-2 which ensued after  Priyanka @ Pamma informed A-2 of infidelity that A-1 was  having with someone, A-2 got down of the vehicle at Hisar and  went away and did not return.  That getting down of A-2 on  the way after the altercation was a part of the plan hatched by  A-1 and A-2 to give a slip to the investigating agency to  mislead it, is discernable from the evidence of Paramjeet  Singh, PW.12, who owns a Fast Food and Bakery Shop at  Camp Chowk, Hisar.  In his evidence, he has stated that on  23.8.2001, A-1 accompanied by a man and a girl visited his  shop and that the accompanying girl was calling the man as  "Jijaji".  That A-2 did not alight from the vehicle on the way  and was with A-1 all the time could be elicited from the  statement of A-1 made to PW.62, relevant portion of which is  reproduced below: "\005\005At about 9 p.m. he [A-2] alighted  from the vehicle at Hisar itself and  started saying that he is having no need  of her and I alone go to my home.  I  waited for 5/10 minutes that he would  come back, but he did not turn up.  After  that I along with my sister came to our  house at Punia Farm House \026 Kothi at  Litani Mor.  We reached at about 10.00  p.m. in the Kothi. This is the talk of night  of 23.8.2001. We purchased six pastries  from the shop of Hisar for home. We,  the three ate two pastries on the shop  itself.  

This fact is further supported by the statement of Ishwar  Singh, PW.30, who in his testimony has stated that on  23.8.2001 he had seen A-1 along with her sister and one  another person between 9-9.30 p.m. purchasing fruits from a  rehri at Barwala and that person was Sanjiv whom he has  identified in Court.  The trial court as well as the High Court  have relied on the evidence of PW.12 and PW.30 after giving  cogent reasons therefor.  In view of the evidence of PW.12 and  PW.30 and the confession of A-1 [Ext. 187], we are of the view  that the prosecution has been able to establish that A-2  accompanied A-1 to the place of occurrence in the night of 23rd  August, 2001.  Insofar as participation of A-2 in the crime along with A-1  is concerned, our attention has been drawn to a photograph in  which deceased Shakuntala is lying dead on the floor with her

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mouth, hands and feet tied which is indicative of the fact that  before she was killed, she had shown resistance and in order  to overpower her, her mouth, hands and feet were tied.  By no  stretch of imagination it could be perceived that tying of  mouth, hands and feet of a person could be possible by one  person. It would not have been possible for A-1 alone to tie  mouth, hands and feet herself which further establishes the  fact of presence of A-2 at the place of occurrence and his  having participated in the crime along with A-1.  This is the  second circumstance in the chain which stands established  and points a finger towards none other than A-2 of his having  participated in the crime with A-1.  We now turn to the third circumstance and i.e., A-2’s  clandestine exit from the place of occurrence.   We once again  turn to the judicial confession made by A-1 to PW.62 wherein  she has admitted having left the place of occurrence in the  morning of 24th August and returning to it after half an hour,  which fact stands proved from the statements of PWs.57 and  58 as well.  Head Constable Dharam Singh, PW.46, who was  on patrolling duty at Surewala Chowk, has also stated in his  testimony that he saw A-1 driving Tata Sumo at a very fast  speed and going towards Narwana Chowk.  There was no  reason for A-1 to leave the place of occurrence in the morning  of 24th August after having taken a decision to end her life by  consuming poison.  Her leaving the place of occurrence and  coming back after half an hour to that very place lends further  support to the evidence of PWs. 57 and 58.  That she initially  thought of ending her life in accident and that is why she left  the place of occurrence in the morning in Tata Sumo and  having decided against it on the way and returned to the place  of occurrence after half an hour does not inspire confidence at  all.   Therefore, in the absence of any infirmity in the evidence  of PWs. 57, 58 and 46, which evidence is supported by none  other than A-1 in her judicial confession made to PW.62, the  third circumstance stands also proved by the prosecution.      In order to establish that A-1 had left the place of  occurrence in the morning to take A-2 out therefrom in a  clandestine way and leave her at a sufficient distance so as to  be not seen by anyone, we have also been taken through the  evidence of Head Constable Dharambir Singh  [PW 46],  conductor Jai Singh [PW.39], Rajesh Kumar  [PW.55], Jai Dev  Hans, [PW 45], Rajinder Parshad  [PW 43] and K.A. Khan [PW  3].  PW. 46   in his testimony has stated that while he was on  patrolling duty at Surewala Chock, he saw A-1 driving a  vehicle at a very fast speed coming from Barwala side and  going towards Narwana Chowk.  PW.39, who was the  conductor of the bus that was plying on Hisar to Yamuna  Nagar route, in his testimony, has stated that on 24th August,  2001 Bus No. HR 39/7090 started its journey from Hisar at 5  A.M. and that when it reached near Jajanwala, A-2, who was  wearing pant and bushirt with a bag in his hand, boarded the  bus and that he took the ticket from him for Kaithal.  He has  further stated that A-2 alighted from the bus at Kaithal.  A-2  has been identified by this witness in Court.  Rajesh Kumar,  PW.55, a taxi driver, in his testimony has stated that on  24.8.2001 when he was at the taxi stand at Kaithal, A-2 hired  his taxi at 7.30 a.m. for going to Panipat and that at that time  he was carrying a bag on his shoulder.  He has further stated  that on the way A-2 got down from the Taxi at Jaidev STD  Booth at Kaithal to make a call to Saharanpur and that after  making the call he boarded the taxi again and was dropped by  him at Panipat.  PW.45, who owned STD Booth at Kaithal, in  his deposition has confirmed the factum of A-2 having made a  telephone call from his STD booth on the morning of 24th  August at Saharanpur on telephone No. 729285.  He has also

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identified A-2 in Court.  That A-2 made a call at 7.20 a.m. on  24th August from the STD Booth of PW.45 on telephone No.  0132-729285 has been confirmed by PW.43 \026 Rajinder  Parshad, SDE of Telephone Exchange, Kaithal, on the basis of  list of outgoing telephone calls made from the said STD Booth  in his testimony.   K.A. Khan, Divisional Engineer, Telephones,  at Saharanpur, in his testimony has stated that telephone No.  729285 on which A-2 made call from Kaithal stands in the  name of Sanjiv Kumar.  Analysis of evidence of the aforesaid  witnesses leads to only one conclusion that A-1 had left the  place of occurrence in the morning of 24th August along with  A-2 so as to provide him a safe exit and to give a slip to the  prosecution. This is the fourth circumstance that the  prosecution has been able to establish.  The fifth and the last circumstance in the chain on which  the prosecution has relied is the recovery of ash of the  bloodstained clothes of A-1 and A-2 which were burnt by A-2  and chain and two buttons of the bag he was carrying to  which we now advert.  During interrogation, A-2 disclosed that  after the occurrence his and A-1’s bloodstained clothes were  put by him in a plastic bag and those were burnt by him in the  fields near village Bhainswal. The police party thereafter was  taken to the place where A-2 had burnt his and A-1’s  bloodstained cloths and plastic bag from where the police  team recovered the ash, chain and two buttons of the burnt  plastic bag.  The fact that A-2 was carrying a bag in his hand  on 24th August, 2001 finds mention in the statements of PWs.  39 and 55.  Therefore, in view of the recovery of ash of the  bloodstained clothes and that of the bag at the instance of A-2,  in our view, the prosecution has been able to establish this  last link also in the chain of circumstances.    We now turn to the extra-judicial confession made by A-2  to Sunder Singh, PW.48, which, in the submission of learned  counsel appearing on behalf of the accused, having been made  to a stranger, cannot be relied upon.  PW.48 \026 Sunder Singh,  in his testimony, has stated that on receiving a message from  Brahm Singh, cousin of A-1’s mother, on 17.9.2001, he went  to Shamli and met Brahm Singh, who told him that Relu Ram  and his family have been killed by both A-1 and A-2.  After  some time, A-2 also reached there and told PW.48 that he and  his wife have killed the entire Relu Ram family with iron rod  and the reason given for committing the crime was that Relu  Ram was not parting with the share of A-1 in the property.  A- 2 also told PW.48 about his clandestine entry to and exit from  the place of occurrence. On a suggestion made by PW.48 to A- 2 to surrender before the police, A-2 promised him that he  would come on 19th September, 2001. PW.48 thereafter  informed the police about the incident on 17th September  itself. On 19th September, 2001 Brahm Singh and PW.48  produced A-2 at PWD Rest House, Panipat before DSP  Mahender Singh and he was arrested.  PW. 48, in his  testimony, has stated that A-2 himself told him about his  clandestine ingress to and egress from the Kothi at Litani Mor  by hiding himself in the middle seat of the vehicle and that he  was dropped by A-1 at Village Jajanwala on Narwana Road in  the morning. The confession made to PW.48 is supported by  the fact that the weapon used in the crime i.e., tractor rod,  mention of which has been made by A-2 in his confession to  PW.48, was found on the bed of A-1 and on the disclosure  statement made by A-2 to the police, the ash of the  bloodstained clothes of his and A-1 and that of the bag  containing the said clothes was also recovered.    Learned counsel appearing on behalf of the accused has  submitted that PW.48 being a stranger to A-2 and Brahm  Singh, who was not examined by the prosecution on the

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pretext of having been won over, having been remotely  connected to PW.48 no reliance should be placed on the  confession made by A-2 before PW.48.   In our view, the  submission has been made only to be rejected for the reason  that in his testimony PW.48 has stated that he had attended  the betrothal ceremony and marriage of A-2.  Therefore,  question of his being stranger to A-2 does not arise. However,  it is well settled by a catena of decisions rendered by this  Court that extra-judicial confession made even to a stranger  cannot be eschewed from consideration if it is found to have  been truthful and voluntarily made before a person who has  no reason to state falsely.  In the case of Gura Singh vs. State  of Rajasthan, (2001) 2 SCC 205, the evidentiary value to be  attached to the extra-judicial confession has been explained at  page 212 thus:- "It is settled position of law that extra-judicial  confession, if true and voluntary, it can be relied  upon by the court to convict the accused for the  commission of the crime alleged. Despite inherent  weakness of extra-judicial confession as an item of  evidence, it cannot be ignored when shown that  such confession was made before a person who has  no reason to state falsely and to whom it is made in  the circumstances which tend to support the  statement. Relying upon an earlier judgment in Rao  Shiv Bahadur Singh v. State of Vindhya Pradesh,  AIR 1954 SC 322, this Court again in Maghar Singh  v. State of Punjab, (1975) 4 SCC 234, held that the  evidence in the form of extra-judicial confession  made by the accused to witnesses cannot be always  termed to be a tainted evidence. Corroboration of  such evidence is required only by way of abundant  caution. If the court believes the witness before  whom the confession is made and is satisfied that  the confession was true and voluntarily made, then  the conviction can be founded on such evidence  alone. In Narayan Singh v. State of M.P., (1985) 4  SCC 26, this Court cautioned that it is not open to  the court trying the criminal case to start with a  presumption that extra-judicial confession is always  a weak type of evidence. It would depend on the  nature of the circumstances, the time when the  confession is made and the credibility of the  witnesses who speak for such a confession. The  retraction of extra-judicial confession which is a  usual phenomenon in criminal cases would by itself  not weaken the case of the prosecution based upon  such a confession. In Kishore Chand v. State of  H.P., (1991) 1 SCC 286, this Court held that an  unambiguous extra-judicial confession possesses  high probative value force as it emanates from the  person who committed the crime and is admissible  in evidence provided it is free from suspicion, and  suggestion of any falsity. However, before relying on  the alleged confession, the court has to be satisfied  that it is voluntary and is not the result of  inducement, threat or promise envisaged under  Section 24 of the Evidence Act or was brought about  in suspicious circumstances to circumvent Sections  25 and 26. The Court is required to look into the  surrounding circumstances to find out as to  whether such confession is not inspired by any  improper or collateral consideration or  circumvention of law suggesting that it may not be  true. All relevant circumstances such as the person

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to whom the confession is made, the time and place  of making it, the circumstances in which it was  made have to be scrutinized. To the same effect is  the judgment in Baldev Raj v. State of Haryana, AIR  1991 SC 37. After referring to the judgment in Piara  Singh v. State of Punjab, (1977) 4 SCC 452 this  Court in Madan Gopal Kakkad v. Naval Dubey  (1992) 3 SCC 204 held that the extra-judicial  confession which is not obtained by coercion,  promise of favour or false hope and is plenary in  character and voluntary in nature can be made the  basis for conviction even without corroboration."

Examined in the light of the enunciation of law as above,  we are of the view that the testimony of PW.48 as regards the  confession made by A-2 is such as to inspire confidence in our  minds.  Indisputably, extra-judicial confession was made by A- 2 to PW.48 prior to his arrest by the police and, therefore,  question of it being made under any inducement, threat or  promise does not arise.  Moreover, there was absolutely no  reason for PW 48 to unnecessarily implicate the accused, as  he had no animus against him.   In view of our above discussion, we see no reason to  disbelieve the evidence of PW.48 and hold that A-2 made  extra-judicial confession which is voluntary and truthful. Insofar as motive qua the crime committed is concerned,  it is clearly borne out from the factual matrix of the case on  hand that both the accused had an eye on the property of  deceased, Relu Ram, which was in crores and in order to gain  full control over the property and to deprive deceased Relu  Ram from giving it to anybody else, both the accused persons  have eliminated his whole family. We have been taken through  the extra-judicial confession made by A-2 to PW. 48 wherein  he has indicated that as deceased Relu Ram was not parting  with the share of A-1 in the property, both A-1 and A-2  together have done to death his whole family. Therefore, the  motive qua the crime committed stands proved in the present  case. We now turn to the extra-judicial confession made by A-2  before Rajni Gandhi, PW.17, wherein also A-2 stated that he  and A-1 had murdered the deceased persons.  Indisputably, the extra-judicial confession that A-2 has  made to PW.17 on 24th and 25th September, 2001 was made  while he was in police custody, having been arrested on  19.9.2001. It is apt to reproduce the relevant portion of the  statement made by PW.17 in her deposition which is to the  following effect: "\005. On 24.9.2001 police brought Sanjeev  Kumar\005. for lie detection test.  After that  myself and Sanjeev Kumar accused  conversed with each other in a room/library  of the FSL Madhuban.  Police went away at  that time. \005After completing the formalities  that is of consent etc., I called for the police  to take both the persons for lunch as by that  time, lunch interval has started and it was  necessary for a person not to be hungry while  going through the lie detection test.  \005. When  Sanjeev Kumar was taken by the police for  lunch on 24.9.2001, he was again brought  after lunch interval.  Then Sanjeev Kumar  was put on polygraph machine. Lie Detection  test continued for one and a half hour.   During that process, Sanjeev Kumar used to  stop his breathe voluntarily and on that

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account, Lie Detection Test could not be  made on that day.  I asked Sanjeev Kumar as  to why he was doing, he told me that he was  purposely doing it.  Thereafter Sanjeev  Kumar was brought before me on 25.9.2001  because on that day it was not possible to go  through the lie detection test\005.. On  25.9.2001 Sanjeev Kumar was brought by  the police at 9.30 a.m. in the office of FSL\005".

The above statement of PW.17, therefore, clearly depicts  that A-2 was brought by the police to Forensic Science  Laboratory [FSL], Madhuban, for the lie detection test on  24.9.2001 and when she conversed with him the police party  went away.  On her saying, A-2 was taken by the police for  lunch and thereafter brought back to the FSL.  As Lie  Detection Test [LDT] was not possible on 24th September, A-2  was again brought to FSL by the police on 25th September on  which day the LDT was conducted.    Learned counsel appearing on behalf of the accused  submits that temporary disappearance of the police from the  scene leaving the accused in charge of a private individual  does not terminate his custody and, therefore, the extra- judicial confession made by A-2 to PW.17 having been made in  police custody is inadmissible as it is hit by Section 26 of the  Evidence Act which provides that any confession made by any  person while he is in the custody of a police officer, unless it  be made in the immediate presence of a Magistrate, shall not  be proved as against such person. In support of his  submission, reliance has been placed on Kishore Chand vs.  State of H.P [(1991) 1 SCC 286].          In Kishore Chand [supra], the question that arose  before this Court was whether extra-judicial confession made  by an accused to a Village Pradhan, in the company of whom  the accused was left by the police officer after apprehending  him, could be said to have been made while in police custody.   While answering the question in the affirmative, a 2-Judge  Bench of this Court at page 295 held as under:- "The question, therefore, is whether the  appellant made the extra-judicial  confession while he was in the police  custody.  It is incredible to believe that  the police officer, PW.27, after having got  identified the appellant by PW.7 and  PW.8 as the one last seen in the company  of the deceased would have left the  appellant without taking him into  custody\005.. Therefore, it would be  legitimate to conclude that the appellant  was taken into the police custody and  while the accused was in the custody, the  extra-judicial confession was obtained  through PW.10....".

Indisputably, A-2 was arrested on 19th September, 2001  and on 24th and 25th September when he was taken for the  LDT he was in police custody and it was at that point of time  he made extra-judicial confession to PW.17 at which point of  time police personnel went away from the scene temporarily.     Therefore, in the light of the decision rendered in Kishore  Chand [supra], we are of the opinion that extra-judicial  confession made by A-2 to PW.17 is hit by Section 26 of the  Evidence Act, it having been made by A-2 while in police  custody and, consequently, cannot be admitted into evidence  and, therefore, has to be eschewed from consideration.

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However, even the exclusion of extra-judicial confession made  by A-2 before PW.17 would be of no help to this accused as we  are of the view that the prosecution has succeeded in proving  its case beyond reasonable doubts against A-2 on the basis of  circumstantial evidence enumerated above as well as extra- judicial confession made by A-2 before PW.48. Insofar as the Polygraph [Lie Detection] Test which was  conducted on A-2 is concerned, Mr. Sushil Kumar submits  that since polygraph evidence is not subject of expert evidence  as per Sec. 45 of Evidence Act being a science in mystique, it  could at best be used as an aid to investigation and not as an  evidence. In support of his submission, he has relied on  Romeo Phillion and Her Majesty The Queen, (1978) 1 SCR  18 and R. v.  Beland, (1987) 2 SCR 398, which are decisions  rendered by the Canadian Supreme Court, and on Mallard v.  Queen, 2003 WASCA 296, a decision of the Australian  Supreme Court.  Mr. Tulsi, on the other hand, submits that  the result of Polygraph Test can be used against the accused.  As there are other materials sufficient for upholding conviction  of A-2, we refrain ourselves from going into the question of  admissibility or otherwise of the result of Polygraph Test in the  present case.          Having held that both A-1 and A-2 are guilty of murder of  deceased Relu Ram and his family and that their conviction  under Section 302 read with Section 34 and Section 120-B  and other provisions inflicted upon them by both the courts  below does not call for any interference by this Court, we now  proceed to decide whether the instant case is one of rarest of  rare cases warranting death sentence, as has been held by the  trial court to be one, or the one in which sentence of life  imprisonment would be appropriate, as has been held by the  High Court while commuting the sentence of death to life  imprisonment.  Learned counsel appearing on behalf of the accused  submitted that the present case cannot be said to be rarest of  the rare one so as to justify imposition of extreme penalty of  death. This question has been examined by this Court times  without number.   In the case of Bachan Singh v. State of  Punjab, [1980] 2 SCC 684, before a Constitution Bench of this  Court validity of the provision for death penalty was  challenged on the ground that the same was violative of  Articles 19 and 21 of the Constitution and while repelling the  contention, the Court laid down the scope of exercise of power  to award death sentence and the meaning of the expression  ‘rarest of the rare’ so as to justify extreme penalty of death and  considered that Clauses (1) and (2) of Article 6 of the  International Covenant on Civil and Political Rights to which  India has acceded in 1979 do not abolish or prohibit the  imposition of death penalty in all circumstances. All that they  required is that, firstly, death penalty shall not be arbitrarily  inflicted; secondly, it shall be imposed only for most serious  crimes in accordance with a law, which shall not be an ex post  facto legislation. The Penal Code prescribes death penalty as  an alternative punishment only for heinous crimes, which are  not more than seven in number. Section 354(3) of the Criminal  Procedure Code, 1973 in keeping with the spirit of the  International Covenant, has further restricted the area of  death penalty. Now according to this changed legislative  policy, which is patent on the face of Section 354(3), the  normal punishment for murder and six other capital offences  under the Penal Code, is imprisonment for life (or  imprisonment for a term of years) and death penalty is an  exception. The present legislative policy discernible from  Section 235(2) read with Section 354(3) is that in fixing the  degree of punishment or making the choice of sentence for

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various offences, including one under Section 302, Penal  Code, the Court should not confine its consideration  "principally" or merely to the circumstances connected with  the particular crime, but also give due consideration to the  circumstances of the criminal. In many cases, the extremely  cruel or beastly manner of the commission of murder is itself a  demonstrated index of the depraved character of the  perpetrator. And it is only when the culpability assumes the  proportion of extreme depravity that "special reasons" can  legitimately be said to exist. Judges should never be  bloodthirsty. It is, therefore, imperative to voice the concern  that courts, aided by the broad illustrative guidelines  indicated, will discharge the onerous function with evermore  scrupulous care and humane concern, directed along the  highroad of legislative policy outlined in Section 354(3), viz.,  that for persons convicted of murder, life imprisonment is the  rule and death sentence an exception.         In the case of Machhi Singh v. State of Punjab, (1983) 3  SCC 470, a 3-Judge Bench of this Court following the decision  in Bachan Singh (supra), observed that in rarest of rare cases  when collective conscience of the community is so shocked  that it will expect the holders of the judicial power centre to  inflict death penalty irrespective of their personal opinion as  regards desirability or otherwise of retaining death penalty.  The community may entertain such a sentiment in the  following circumstances: I. When the murder is committed in an extremely  brutal, grotesque, diabolical, revolting or dastardly  manner so as to arouse intense and extreme  indignation of the community. For instance,   (i) when the house of the victim is set aflame with  the end in view to roast him alive in the house, (ii)  when the victim is subjected to inhuman acts of  torture or cruelty in order to bring about his or her  death; and (iii) when the body of the victim is cut  into pieces or his body is dismembered in a fiendish  manner. II. When the murder is committed for a motive  which evinces total depravity and meanness. For  instance when (a) hired assassin commits murder  for the sake of money or reward or (b) a cold- blooded murder is committed with a deliberate  design in order to inherit property or to gain control  over property of a ward or a person under the  control of the murderer or vis-a-vis whom the  murdered is in a dominating position or in a  position of trust, or (c) a murder is committed in the  course for betrayal of the motherland. III. (a) When murder of a member of a Scheduled  Caste or minority community etc., is committed not  for personal reasons but in circumstances etc.,  which arouse social wrath. For instance when such  a crime is committed in order to terrorise such  persons and frighten them into fleeing from a place  or in order to deprive them of, or make them  surrender, lands or benefits conferred on them with  a view to reverse past injustices and in order to  restore the social balance. (b) In cases of ’bride  burning’ and what are known as ’dowry deaths’ or  when murder is committed in order to remarry for  the sake of extracting dowry once again or to marry  another woman on account of infatuation. IV. When the crime is enormous in proportion. For  instance when multiple murders say of all or almost  all the members of a family or a large number of

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persons of a particular caste, community, or  locality, are committed. V. When the victim of murder is (a) an innocent  child who could not have or has not provided even  an excuse, much less a provocation, for murder (b)  a helpless woman or a person rendered helpless by  old age or infirmity (c) when the victim is a person  vis-a-vis whom the murderer is in a position of  domination or trust (d) when the victim is a public  figure generally loved and respected by the  community for the services rendered by him and the  murder is committed for political or similar reasons  other than personal reasons. In the said case, the Court further observed that in this  background the guidelines indicated in the case of Bachan  Singh (supra) will have to be culled out and applied to the  facts of each individual case and where the question of  imposing death sentence arises, the following proposition  emerge from the case of Bachan Singh (supra):- (i)     The extreme penalty of death need not be  inflicted except in gravest cases of extreme  culpability. (ii)    Before opting for the death penalty the  circumstances of the ’offender’ also require to  be taken into consideration along with the  circumstances of the ’crime’. (iii)   Life imprisonment is the rule and death  sentence is an exception. In other words death  sentence must be imposed only when life  imprisonment appears to be an altogether  inadequate punishment having regard to the  relevant circumstances of the crime, and  provided, and only provided, the option to  impose sentence of imprisonment for life  cannot be conscientiously exercised having  regard to the nature and circumstances of the  crime and all the relevant circumstances. (iv)    A balance-sheet of aggravating and mitigating  circumstances has to be drawn up and in  doing so the mitigating circumstances have to  be accorded full weightage and a just balance  has to be struck between the aggravating and  the mitigating circumstances before the option  is exercised. The Court thereafter observed that in order to apply  these guidelines the following questions may be answered:- (a)     Is there something uncommon about the crime  which renders sentence of imprisonment for  life inadequate and calls for a death sentence? (b)     Are the circumstances of the crime such that  there is no alternative but to impose death  sentence even after according maximum  weightage to the mitigating circumstances  which speak in favour of the offender?

Ultimately, in the said case of Machhi Singh (supra), the  Court observed that if upon an overall global view of all the  circumstances in the light of the aforesaid proposition and  taking into account the answers to the questions posed  hereinabove, the circumstances of the case are such that  death sentence is warranted, the Court would proceed to do  so. In the light of the law already laid down by this Court  referred to above, now this Court is called upon to consider  whether the present case would come within the realm of the

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rarest of the rare or not. The instant case is one wherein accused Sonia, along  with accused Sanjiv [her husband] has not only put an end to  the lives of her step brother and his whole family, which  included three tiny tots of 45 days, 2-1/2 years and 4 years,  but also her own father, mother and sister in a very diabolic  manner so as to deprive her father from giving the property to  her step brother and his family. The fact that murders in  question were committed in such a diabolic manner while the  victims were sleeping, without any provocation whatsoever  from the victims’ side indicates the cold-blooded and  premeditated approach of the accused to cause death of the  victims. The brutality of the act is amplified by the grotesque  and revolting manner in which the helpless victims have been  murdered which is indicative of the fact that the act was  diabolic of most superlative degree in conception and cruel in  execution and that both the accused persons are not  possessed of the basic humanness and completely lack the  psyche or mind set which can be amenable for any  reformation. If this act is not revolting or dastardly, it is  beyond comprehension as to what other act can be so.  In view  of these facts we are of the view that there would be failure of  justice in case death sentence is not awarded in the present  case as the same undoubtedly falls within the category of  rarest of rare cases and the High Court was not justified in  commuting death sentence into life imprisonment. In the result Criminal Appeal No. 142 of 2006 filed by the  accused persons is dismissed whereas Criminal Appeal No.  895 of 2005 filed by private prosecutor and Criminal Appeal  No. 894 of 2005 filed by the State of Haryana are allowed,  order passed by the High Court commuting death sentence  into life imprisonment is set aside and order of the trial court  awarding death sentence is restored.