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PETITIONER: SHANKARIA

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT26/04/1978

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH UNTWALIA, N.L. KAILASAM, P.S.

CITATION:  1978 AIR 1248            1978 SCC  (3) 435

ACT: Proof  of  guilt-Tests  to be applied by  the  Courts  in  a capital  case when relying solely on confessional  statement of  the accused-Identification of Prisoners Act, Sections  4 and  5-Obtaining  of  thumb impression in  the  presence  of Magistrate,  whether necessary-Track evidence is a  relevant circumstance  which  can be taken into  account  along  with other evidence.

HEADNOTE: The  appellant was tried, convicted and sentenced  to  death under  Section  302,  Penal Code for the  double  murder  of Kartar Singh and Mada Singh deceased, by the Sessions Judge, Ganganagar.   He  was further convicted for  offences  under Sections 307, 459, 460 and 380 Penal Code.  The case of  the prosecution rested mainly on the confessional statement, Ex. p.27,  part  from supporting circumstantial  evidence.   The learned Sessions Judge found that the confessional statement though  retracted at the time of examination  under  Section 313,  Criminal Procedure Code, had been voluntarily made  by the  accused and that it was true and had been  corroborated in some particulars by the other evidence on record. Shankaria’s  appeal  to the High Court  was  dismissed,  the reference  made by the Sessions Judge was accepted  and  the conviction and sentence of death were confirmed. In  appeal by special leave, it was contended that  (i)  the confession  was not voluntarily made but was the  result  of police  pressure,  inducement  and coercion  and  that  this inference was deducible among others, from several  features of  the  case. (ii) after the preliminary  questioning,  the Magistrate  hardly  give  20 minutes to  the  appellant  for reflection before recording his confession, which  according to  the  ruling of this Court in Sarwan Singh  v.  State  of Punjab  [1957] SCR 953 the Magistrate should have  sent  the accused  back  for at least 24 hours to jail  to  think  and decide, as to whether or not he should make a confession and (iii)  there is reason to suspect that after  recording  the confession,  the  appellant was handed back  to  the  Police Superintendent who then took him to Hanumangarh.  If that be a fact, it would amount to a contravention of subsection (3) of  Section  164 of the Code of  Criminal  Procedure,  1973, giving  rise  to an inference that the  confession  was  not

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voluntary. Dismissing the appeal, the Court HELD  : 1. A confession recorded u/s 164 Criminal  Procedure Code, if voluntarily and truthfully made, is an  efficacious proof of guilt. [744 B-C] 2.   When  in  a  capital case the  prosecution  demands,  a conviction  of  the accused, primarily on the basis  of  his confession  recorded under s. 164 Criminal  Procedure  Code, the Court must apply a double test; (1)  Whether the confession was perfectly voluntary ? (2)  If   so,   whether  it  is  true  and   trustworthy   ? Satisfaction  of  the first test is a sine qua non  for  its admissibility in evidence.  If the confession appears to the Court  to  have  been caused by any  inducement,  threat  or promise,  such as is mentioned in Section 24, Evidence  Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the 737 second  test,  does  not  arise.   If  the  first  test   is satisfied, the Court must before acting upon the confession, reach  the finding that what is stated therein is  true  and reliable.  For judging the reliability of such a confession, or  for  that matter of any substantive piece  of  evidence, there is no rigid canon of universal application.  Even  so, one  broad  method  which may be useful in  most  cases  for evaluating a confession, may be indicated.  The Court should carefully  examine the confession and compare it  with,  the rest  of  the  evidence, in the  light  of  the  surrounding circumstances  and  probabilities of the case.  If  on  such examination  and comparison, the confession appears to be  a probable catalogue of events and naturally fits in with  the rest  of the evidence and the surrounding circumstances,  it may be taken to have satisfied the second test. [744 C-F] 3.   (a)  In  the  instant  case.  both  these  tests   were satisfied.   The  confession  (Ex.  P-27) was  found  to  be voluntary  and  true.   Its perusal showed  that  there  was nothing improbable or unbelievable in it.  It appeared to be a spontaneous account, studded with such vivid details about the manner of committing the crimes in question, which  only their  perpetrator could know.  The physical facts found  at the  spot in the morning following the night of  occurrence, told  a tale which was consistent with the one told  by  the accused in his confession.  Among these physical facts was a dibbi  bearing finger-prints, one of which according to  the Expert  of the Government Finger Print Bureau, tallied  with the  specimen finger-print of the, accused.   The  accused’s finger-print on the dibbi which was seized from the spot and sealed  before the arrest of the accused, and the  seals  on which  remained intact till they were opened by the  Finger- Print Expert, was a tell-tale circumstance, pointing towards the guilt of the accused. r 752 D, F, 754 D, 759 Al (b)  The confessional statement received assurance from  the other evidence also. (i)  It  was corroborated by the medical evidence in  regard to the nature of the weapon (kassi) with which according  to the  confession the injuries were inflicted.  This fact  was further confirmed by the report of the Serologist who  found human blood on the kassi. (ii) The  moulds of the bare-foot prints found at the  scene of crime, according to the Expert, tallied with the specimen foot-moulds of the accused. (iii)     Although, by itself, such track evidence could not be  deemed  sufficient  to carry conviction, yet  it  was  a relevant  circumstance which taken into account  along  with the  other  evidence, reinforced the conclusion  as  to  the

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identity of the culprit. [755 B, C, 759 D, E] 4.   The condition precedent for recording a confession by a Magistrate  in  the  course  of  Police  Investigation,   is provided  in  Section 164(2) Cr.  P.C.  which  mandates  the Magistrate  riot  to  record  any  confession,  unless  upon questioning  the accused person making it, he has reason  to believe  that it is being made voluntarily.  In the  instant case, the Magistrate fully complied with the condition.  The large  number  of  clear and pointed questions  put  by  the Magistrate  to the accused for this purpose and the  answers given  by  the latter shows that the Magistrate  had  cogent reasons to believe that the confession was being voluntarily made. [749 E, F-G] 5.   How  much time for reflection should be allowed  to  In accused person before    recording  his  confession,  is   a question which depends on the circumstances  of  each  case. The  object  of  giving  such time  for  reflection  to  the accused. is to ensure that he is completely free from police influence.   If  immediately  before the  recording  of  the confession,  the accused was in judicial custody beyond  the reach  of the investigating police for some days, then  such custody  from  its  very  nature, may  itself  be  a  factor dispelling fear or influence of the police from the mind  of the  accused.   In such a case, it may not be  necessary  to send  back  the accused person for any prolonged  period  to jail  or judicial lock-up before recording  his  confession. In  the  instant case, the accused was got admitted  to  the judicial lock-up on the 12th June for getting his confession recorded  under  s. 164 Cr.  P.C., and, such  admission  was made 738 under the orders of the Magistrate who, ultimately  recorded his confession on the 14th June.  The accused was for  about two days in judicial custody beyond the reach of the Police. On  June  13,  1974  a  written  request  was  made  to  the Magistrate  by the Police, for recording the  confession  of the  accused.   Even  then  the  Magistrate  postponed   the recording   of  the  confession  till  the  following   day, obviously  because he wanted to give the appellant  one  day more in judicial custody to ponder over the matter free from Police  influence.   On the 14th June,  notwithstanding  the fact that the accused Shankaria was in judicial custody from the  evening  of  the 12th June, the  Magistrate  after  the preliminary  questioning,  allowed 15 minutes  more  to  the accused for reflection.  Thus, the accused had in fact about 38  or 40 hours in judicial custody,  immediately  preceding the  confession, and this was rightly considered  sufficient to  secure  to  him freedom from fear or  influence  of  the Police. [750 E-F, 751 A] Sarwan   Singh   v.  State  of  Punjab   [1957]   SCR   953; distinguished. Abdul  Razak  v.  State  of Maharashtra  AIR  1970   SC  283 followed. 6.   There was no infringement of sub-section (3) of s.  164 Crl.  P.C. According to the testimony of the Magistrate  (PW 6) and the Superintendent of police  (PW 22) the custody  of the  accused  was  no handed to  the  to  the  investigating officer,  but to the Challani guard who escort under  trials to and from Jail/ Judicial’ guard.[751 E-F, 754A] Regarding the sentence: 7.   The  crimes  were  committed  in  a  most  brutal   and dastardly  fashion.   The victim were  taken  unawares  when asleep.   Two of them were blind.  The Neronian  conduct  of the accused even after the occurrence, in languishing in the stricken  premises,  looking  for something to  cat  in  the

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kitchen,  drinking water, smoking bidis, bringing water  and bathing  himself, mindless of the specter of the  slain  and the  groans  and  gasps of the  dying,  betrays  an  extreme depravity of character.  The grisly and gruesome  nature  of the murders, the hapless and helpless state of the  victims, the fiendish modus operandi of the  appellant the first kill and  then  steal-  all, the heart of law  to  call  for  its extreme penalty. [759 H, 760 A]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION :Criminal Appeal No.  561  of 1976. Appeal by special leave from the Judgment and Order dated 5- 5-1976 of the Rajasthan High Court in D. B. Crl.  Appeal No. 491 of 1975 and D. B. Reference No. 4 of 1975. S.   K. Gambhir (Amicus Curiae) for the Appellant. S.   N.  Kacker, Sol.  Genl, S. M. Jain, Dalveer  Singh  and Ranjeev Dutta for the Respondent. The Judgment of the Court was delivered by SARKARIA J.-This appeal by special leave is directed against a  judgment  of the High Court of Rajasthan,  by  which  the order  of  the Sessions Judge,  Ganganagar,  convicting  the appellant under Section 302 Penal Code and sentencing him to death  for  the  double murder of two.  persons  in  Village Takhat Hazara, was confirmed. The facts of the prosecution case are as follows A  First Information Report was lodged on September 9,  1973 at  about  7.30 a.m. by one Shyam Singh  in  Police  Station Sadul Sahar, to the effect that when he in the morning  went to the Gurdwara of his 739 village at about 7 a.m. for brooming and burning incense, as usual, he found three persons, one of whom, Mada Singh,  lay groaning on a cot.  The informant went back to the  village, contacted  Jagar Singh, Hari Singh, Sukhdarshan Singh,  Amar Singh  and  others,  and in their company  returned  to  the Gurdwara.   It  was then detected that kartar Singh  son  of Hari Singh lay dead on a cot with injuries on his head.  The other  two persons, Mada Singh and Wazir Singh,  were  lying injured.   The locks of the rooms were found broken and  the goods lay scattered. After registering the case, the Station House   Officer,   Bhagwan  Singh  reached  the   scene   of occurrence.   He  prepared  the site plan (Ex.  P-8)  and  a connected explanatory note in which be recorded the physical facts  noticed by him at the spot.  Among other  things,  he found one blood stained Kassi (Article 1) and a Dibbi (small tin-box) (Article 2).  Some coins were also lying  scattered there.  He noticed some finger-prints on the Dibbi (Art. 2). He,  therefore  in  the  presence  of  witnesses   including Sukhdarshan  Singh (P.W.6), Jaggar Singh (P.W. 8),  prepared the  seizure, memo (Ex.  P. 14) in respect of the Dibbi  and sealed  it into a parcel.  He also sealed the  blood-stained Kassi  into  a parcel, vide Ex.  P-12.  He  also  took  into possession  blood-stained  earth, clothes and  broken  locks from  the scene.  He also prepared the inquest  report  (Ex. P- 12) in respect of the dead body of Kartar Singh  deceased and  sent  it  for postmortem  examination.   Bhagwan  Singh continued the investigation till September 12, 1973 when  it was taken over by Bhanwar Singh. A  large number of crimes of this pattern involving  murders or attempted murders were committed in Rajasthan and in  the neighbouring States of Haryana and Punjab.  Fifteen cases of crimes  of a similar nature, were registered  in  Ganganagar

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District, alone, from February 1973 to May 1974.  Naturally, the  Police  machinery  of  Ganganagar  District  came  into motion.  Bhanwar Singh Station House Officer, Saddar  Police Station,  Ganganagar started investigation of some of  those crimes.  He took over the investigation of this case also on September  12,  1973.   Shri  Shyam  Pratap  Singh  Rathore, District   Superintendent   of   Police   supervised    the, investigation.   Suspicion  fell on the  appellant  who  was found  absent  from his native  village  Karanpur,  District Ganganagar. On June 3, 1974, Shri Rathore accompanied by Bhanwar  Singh, S.  H. O. and one Subhash (P.W. 23) went  to  Bhatinda  and arrested the appellant, Shankaria who had assumed the  alias Rattan Lal. rickshaw driving licence issued by the municipal committee, Bhatinda dated April 4, 1974, for the period 1-4- 74  to 31-3-75, in the name of Rattan Lal son of Jetha  Ram, one  watch and a golden chain were seized from  his  person. Bhanwar  Singh prepared the memo (Ex.  P-56A) in respect  of the arrest of the appellant-and his personal search.   Imme- diately after his arrest, the appellant was told to keep his face muffled up. which he did.  The appellant was then taken by the police to Ganganagar and lodged in the lock-up of the Police  Station  on  June  4, 1974.   Under  orders  of  the Inspector-General  of  Police, the investigation  was  taken over  by  Shri Kashi Prasad  Srivastava,  Superintendent  of C.I.D. on June 5, 1974. 740 On  June 12, 1974, the appellant was taken by the police  to Raisingh  Nagar,  and  under the orders  of  the  Magistrate lodged in the judicial lock-up there. On June 13, 1974, Shri Srivastava, Superintendent of C.I.D., submitted  an application to the Judicial Magistrate,  First Class,  Raisingh  Nagar, requesting  that  the  confessional statement  of  the  accused  be  recorded.   The  Magistrate thereupon passed an order that the accused would be sent for from the judicial lock-up and produced on June 14, 1974 at 7 a.m.  for  this  purpose.   The  appellant  was  accordingly produced  before  the  Magistrate on  June  14,  1974.   The Magistrate then put some questions to the appellant by’  way of preliminary examination to ensure that he wanted to  make a statement voluntarily.  The Magistrate gave him some  time for  reflection  and from 8.45 a.m.  onwards,  recorded  his confessional statement (Ex.  P-27). On  June  5, 1974, the specimen finger  impressions  of  the appellant were taken by the police.  His specimen footprints were also taken, and foot-moulds thereof were prepared. Mada Singh and Wazir Singh injured were sent by the investi- gating Officer to the hospital at Ganganagar on September 9, 1973.  Since some argument was made before us with regard to the nature of the inflicting weapon, it is necessary to note the details of the injuries.  Dr. Bahadur Singh found  these injuries on Mada Singh               1.    Incised  wound 1-1/2" x 1/4" brain  deep               on  the  right side of forehead 1"  above  the               eye-brow.               2.    Incised wound 1/4" x 1/2" x 1" on  right               eye outer angle.               3.    Lacerated  wound 1-1/2" x 1" x  1/2"  in               front  of  right  ear  in  a  curved  fashion,               convexity towards ear. In  the doctor’s opinion, all these injuries were  suspected to  be  grievous and caused with a sharp  weapon,  like  the Kassi  (Art.  1).  Mada Singh succumbed to his  injuries  on September 11, 1973 at 6 a.m. in the hospital. Dr.  M. P. Agarwal conducted the autopsy of Mada  Singh  and

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found these external injuries :               1.    Bruise  21" x 1-1/2" on both  the  right               eye-lids.               2.    Incised  wound  1/4" x 1" at  the  outer               angle of right eye.               3.    Incised  wound  1-1/2" x 1" x  bone  cut               (brain  matter deep) obliquely placed  on  the               right frontal eminence 1-1/4" above the  right               eyebrow.               4     Lacerated  wound 1-1/2" x 1/3" x  1"  in               front of the tragues of right ear-               741               5.    Soft  tissues swelling 6" x 5" all  over               the right face and front temporal region. On opening the body, the doctor found soft tissue  harmotoma all over the right temporal, frontal, parietal and occipital region,  and  a linear oblique fracture  of  right  temporal region  with multiple fracture pieces and fracture of  right fronto-parietal  region under injury No. 3. There  was  sub- dural  haemorrhage and membrane of the brain were found  cut under injury No. 3. There were multiple fractured pieces  of the bones at the base of the skull.  The Injuries 2 and 3 in the  opinion of Dr. Agarwal could be caused with  the  sharp edge and Injury No. 4 with blunt side of the Kassi (Art. 1). The injuries appeared to be caused by separate blows. Dr. Bahadur Singh found these injuries on Wazir Singh (P.W.) on September 9, 1973 :               1.    Incised  wound 1-1/2" x 1/8" upto  brain               on  right parietal bone 2-1/2" above  the  ear               obliquely upward downward.               2.    Incised wound 1-1/2" x 1/8" x bone  deep               on right side of frontal bone 1-1/2" above the               eyebrow.               3.    Lacerated wound curved shape outer  part               of          eye starting from lateral side  of               eyebrow upto maxillary prominence. Injuries  1 and 2, in the Doctor’s opinion, could be  caused with the sharp side of the Kassi (Art.1), and were grievous; while  Injury 3 could be caused with the blunt side of  this Kassi.   Wazir  Singh  was unconscious at the  time  of  his medical examination. Dr.  Bahadur Singh performed postmortem examination  of  the body  of  Kartar Singh deceased on September,  9,  1973  and found these injuries :               1.    Lacerated  wound 2-3/4"x1/2" upto  brain               matter  on  the  frontal bone  21’  above  the               medial  end of right eyebrow upward  downward.               Brain  matter  was seen from the  wound.   The               bone was found fractured.               2.    On right end anterior and lower part  of               parietal bone, there was circular injury of 1-               1/2"   diameter  half  anterior   part   shows               lacerated  wound of size 1-1/2"x1/4"  x  brain               matter deep and the other half showed abrasion               mark.               3.    ’.Incised  wound 1’ x 1/4" x 1/4"  above               the lateral side of right eyebrow. In  his opinion,injuries 1 and 2, could be caused  with  the base  of the wooden handle affixed to the hook of the  Kassi (Art.  1).  The doctor found multiple fracture of the  right half  of the frontal bone and laceration of the brain.   The injuries  were  sufficient to cause death  in  the  ordinary course of nature. 742 On  June 29, 1974, the sealed packets containing  the  Dibbi

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(Art.  2) and the locks, together with the specimen  finger- prints  of the accused, were sent to the  Rajasthan  Finger- Print   Bureau,   Jaipur  for  comparison  of   the   finger impressions  and opinion.  At the Bureau,  the  Finger-Print Expert,  Shri  P. N. Tankha (P.  W. 18)  examined  them  and found  two  chance  prints  on the  Dibbi.   He  took  their enlarged  photographs and found that the chance print Q1  on the  Dibbi  was similar to the left  middle-finger  specimen print  (marked S2) of Shankaria appellant; while  the  other chance  print  Q2 on the Dibbi was not  distinct  enough  to admit of comparison. During  his examination at the trial, the  appellant  denied the  prosecution case; he retracted the confession and  said it bad been made under duress.  He also alleged  fabrication of evidence of footprints, etc. by the Police. The  learned  Sessions  Judge found  that  the  confessional statement  (Ex.   P-27)  had been voluntarily  made  by  the accused  and  that it was true.  He further  held  that  the confession had been corroborated by the medical evidence and the circumstantial evidence, namely : (a) the presence of  a finger-print of the accused on the Dibbi (Art. 2); (b)  that one railway ticket was issued from Sadul Shahar to  Bhatinda on  September  9 1973; (c) the similarity  (as  per  Expert, P.W.19)  of  the foot-mould prepared from  the  foot  prints found  at the scene of crime on 9-9-1973, with the  specimen foot-moulds  of the accused; (b) sojourn of the  accused  to Haridwar after committing the crime and his stay in a costly hotel there, on 13th and 14th September, 1973, etc. In  the result, the Sessions Judge convicted  the  appellant under  Section  302  Indian Penal Code for  the  murders  of Kartar Singh and Mada Singh and sentenced him to death.   He further convicted the appellant under Section 307 I.P.C. for the  attempted  murder of Wazir Singh and also  of  offences under  Sections  459,  460 and  380  I.P.C.  for  committing lurking  house  trespass by night and stealing  Rs.  1,100/- from there but he did not award any sentence on these counts in view of the death sentence imposed for the double murder. Shankaria  appealed  to the High Court; while  the  Sessions Judge  also made a reference for confirmation of  the  death sentence. The  High  Court  dismissed the  appeal  and  confirmed  the conviction and the sentence of death. Hence, this appeal by special leave. There  is no ocular evidence of eye-witnesses in this  case. At  the time of occurrence, the three victims were the  only inmates  of  the Gurdwara.  Kartar Singh died at  the  spot. Mada   Singh   died  in  the  Hospital   without   regaining consciousness.  The lone survivor, Wazir Singh (P.W. 14) was examined  at the trial.  He was a blind He had received  the head  injuries  when  he was  asleep.   On  receiving  those injuries he lost consciousness and regained it much later in the hospital on September 9, 1973.  In these  circumstances, P.W. 14 743 was  unable  to  say  as to who  had  caused  him  the  head injuries.  He, however, did depose to the theft of Rs. 600/- which  he  had kept in the Gurdwara.  This amount  had  been raised from a contribution for construction of a room in the Gurdwara. Thus  the  conviction of the appellant mainly rests  on  his confessional  statement (Ex.  P-27), which was  recorded  by the  Judicial  Magistrate, First Class (Shri S.  K.  Bansal, P.W.  6) on June 14, 1974, under Section 164 of the Code  of Criminal Procedure. The substantive part of this confessional statement, Ex.  P-

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27, tendered into English, reads as follows :               "It  is an incident of about ten  months  back               that  I  had purchased a railway  ticket  from               Bhatinda  to Matili at 3 p.m. in the  day  and               boarded  the train from Bhatinda  and  reached               Matili  at  about 7.30 p.m.  Thereafter   took               rail  track and reached Takhat Hazara.  I  hid               in  the nala in the cotton field  near  Takhat               Hazara.   There,  I kept  sitting  and  stayed               there upto 12.30 in the night.  At about 12.30               I  came out of the nala, crossed the line  and               reached  the Gurdwara.  There, I took  off  my               clothes, chappals, and tried to climb the wall               by  the  side,  of  the  line  but  could  not               succeed.   Therefore,  I climbed  through  the               side  and  one  kassi was  lying  there  in  a               corner.   There in the courtyard,  three  beds               were lying.  I picked up the kassi and hit  on               the head of one person from the back (reverse)               side of the kassi.  Thereafter, I hit  another               person.  I hit the third person after running,               as  he  was sleeping very far.  I  then  drank               water, entered the kitchen but could not  find               anything  in spite of search.  Then I  entered               another room, opened the kunda (khuta).  There               a  short  was lying, from which I took  out  a               key.  I broke open the lock and got Rs.  700/-               and got nothing else during the search.   Then               I  broke open the lock of another  house  with               the help of a subble (iron bar).  There I  was               able  to get Rs. 400/, out of which Rs.  300/-               were  in  cash and Rs. 100/ as  change  (small               coins).  I then remained there for much  time,               drank water, smoked a bidi, brought water from               the  nearby  Johar  (tank) in  a  bucket,  and               bathed myself.               "Then  I opened the Gurdwara and searched  it,               but   could   not  find  anything.    I   then               immediately left the village Takhat Hazara and               took  the railway track again and reached  the               road  and got on Abohar-Sirsa Road.   There  I               stayed  upto 7 a.m. In the morning  I  boarded               the  bus  for Sangaria at 7  a.m.  and  stayed               there at the station.  I stayed there upto  10               a.m.  and took tea.  Then I boarded the  train               for  Bhatinda at 10 a.m. and reached  Bhatinda               at  12.30. There I got the  clothes  stitched.               In the evening at 10, I boarded the train  for               Delhi,  (then said) I went to Bikaner and  not               Delhi.   I  stayed for two  days  at  Bikaner.               After two days went to Delhi and stayed  there               for two days.  From Delhi, proceeded for               744               Haridwar  and stayed there in a rented room  @               Rs. 12/- per day.  I stayed at Haridwar for 8-               9 days and then from Haridwar I proceeded  for               Rishikesh.   There I stayed for two  days  and               further  proceeded for Lachman Jhoola.   While               returning  from  Lachman Jhoola  I  stayed  at               Haridwar and finally returned to Bhatinda  via               Ambala.  I did not do any work for one  month.               Afterwards, I started Rikshaw driving. 1  used               to commit thefts, and the police also used  to               catch  me, I was turned out from the house  by               the  people  of  my house and that  is  why  I

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             happened to ply the Rickshaw." This  confession was retracted by the appellant when he  was examined  at the trial under Section 313 Cr.  P.C.  on  June 14,  1975.   It  is  well  settled  that  a  confession,  if voluntarily and truthfully made, is an efficacious proof  of guilt.   Therefore, when in a capital case  the  prosecution demands a conviction of the accused, primarily on the  basis of his confession recorded under Section 164 Cr.  P.C.,  the Court must apply a double test : (1)  Whether the confession was perfectly voluntary ? (2)  If so, whether it is true and trustworthy ? Satisfaction  of  the first test is a sine quo non  for  its admissibility in evidence.  If the confession appears to the Court  to  have  been caused by any  inducement,  threat  or promise such as is mentioned in Section 24   Evidence   Act, it  must  be excluded and rejected brevi manu.   In  such  a case, the question of proceeding further to apply the second test, does     not  arise.  If the first test is  satisfied, the Court must before acting upon  the confession reach  the finding  that what is stated therein is true  and  reliable. For  judging  the reliability of such a confession,  or  for that  matter of any substantive piece of evidence there is no rigid canon of universal application.  Even so, one broad method  which may be useful in most cases for  evaluating  a confession,  may be indicated.  The Court  should  carefully examine  the confession and compare it with the rest of  the evidence, in the light of the surrounding circumstances  and probabilities  of  the  case.  If on  such  examination  and comparison,   the  confession  appears  to  be  a   probable catalogue  of events and naturally fits in with the rest  of the  evidence and the surrounding circumstances, it  may  be taken to have satisfied the second test. Now, let us apply these tests to the confession (Ex.  P-27): The first question is whether the confession was voluntary ? In this connection, some undisputed facts may be noted.  The appellant was arrested by Shri S.P. Rathore,  Superintendent of Police on June 3, 1974 at Bhatinda.  He was then taken to Ganganagar in Rajasthan in connection with the investigation of  15 crimes of a similar pattern committed  in  Ganganagar District.   The  appellant remained in police  custody  upto June 12, 1974 on which date in the afternoon, he was brought by  the  police to Raisingh Nagar,  where  Shri  Sukhdarshan Kumar  Bansal,  Judicial Magistrate First  Class,  was  then holding his Court.  Under the orders of the Magistrate,  the appellant was committed to the judicial lock-up at  Raisingh Nagar in the evening of June 745 12,  1974.   Thereafter, he remained there in  the  judicial lock-up  for  two days more.  On June 13, 1974,  Shri  Kashi Ram,  Superintendent of Police, submitted an application  to the  Magistrate, requesting him to record the confession  of the accused.  On that application, the Magistrate passed  an order to the effect that the accused be sent for from  the judicial  lock-up  on  the  following  day  at  7  a.m.  for recording  his confessional statement.  In  compliance  with the  Magistrate’s order, the appellant was brought from  the judicial  lock-up  in  the  morning of  June  14,  1974  and produced   before  the  Magistrate.   At  8.20   a.m.,   the Magistrate  put  some questions to the appellant by  way  of preliminary examination to ensure whether he wanted to  make a confession voluntarily.  The questions put to the  accused and  the  answers  given  by  him  during  this  preliminary examination, as recorded by the Magistrate may be  extracted : "Q. 1. From where did the police arrest you ? On what day or

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at what time ? Ans.  I was arrested at Bhatinda.  I was arrested on 3rd  at 2. Q. 2.   For how much time are you in police custody ? Ans.   I was in police custody from 3rd to 12th. Q.   3.  What sort of behaviour was given to you during that period ? Ans-  I have been extended good behaviour by the police. Q. 4.     It  has  been  explained to you  that  it  is  not necessary for you to make any confession.  Do you understand that  it  is  at  your  discretion  whether  you  make   the confession or not ? Ans.   I have understood that it is not binding upon  me  to make any confession and it is at my discretion. Q. 5.     Were you put to any physical torture or shown  any fear compelling you to make any confession ? Ans.   I was not put to any physical torture or any fear  to make confession. Q. 6.     Where  you  told  that you  will  be  released  or pardoned  or  any other benefit will be given, in  case  you make confession ? Ans.      I  was  not  told  that I  would  be  released  or pardoned  or  any other benefit will be given,  in  case  of making confession. Q. 7.     It has been explained to you that you will not  be handed over to the police in case you do not make confession and that you will directly be sent to the Jail. Ans.  I have understood. Q. 8.     Do you understand that I am a Magistrate and  that if  you make any confession, it may be used against  you  in evidence ? Ans.  Yes. 13-315SCI/78 746 Q. 9.     It  has fully been explained to you that  you  are not  bound  to  make confession and that you  may  give  any statement whenever you like to make it voluntarily and  that if  you  make  confession that may be used  against  you  in evidence.  Now, tell, what you want to say ? Ans.   I have understood that it is not binding upon  me  to make  confession  and  that it may be  used  against  me  in evidence." After  this preliminary examination, the Magistrate  started recording  of the confessional statement at 8.45 a.m.  After the  completion of the statement (Ex.  P-27) (which we  have extracted  earlier),  at  its foot, the  Magistrate  made  a memorandum, which rendered into English, reads as follows :               "I have explained to Shankaria alias Ratan Lal               that he is not bound to make a confession  and               that if he does so, any confession whatever he               makes, may be used against him in evidence and               I  believe that this confession of  the  crime               has been made voluntarily by him  (Shankaria).               This  confession has been made in my  presence               by  him (Shankaria).  By my reading, over,  on               hearing  it,  the accused admitted  it  to  be               correct.  It is a true and full record of  the               statement    which   he    (Shankaria)    made               voluntarily." The Magistrate, Shri Bansal, was also examined as a  witness at  the trial.  He proved the record of the confession  and testified  that  he bad recorded it after  fully  satisfying himself that the confession was being made voluntarily. Mr.  S. K. Gambhir, appearing as amicus curiae,  argued  the case  very  thoroughly on behalf of the  appellant.   It  is

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contended  by  him that the confession (Ex.  P-27)  was  not voluntarily  made  but was ’the result of  police  pressure, inducement  and coercion.  According to him, this  inference is deducible from these circumstances (1)  No explanation is forthcoming as to why the accused was brought  all the way from Ganganagar to Raisingh  Nagar  for getting the confession recorded there.  Possibly, the police did not want to give the appellant an opportunity of  having independent  advice which could more easily be available  in the  District  town of Ganganagar rather than  at  the  Sub- Divisional town, Raisinghnagar. (2)  The Judicial Lock-up, Raisingh Nagar, being  contiguous to the Police Station is almost a part of it.  The appellant therefore,  even  on the 12th, 13th and 14th of  June  1974, during the time when he was an inmate of the Judicial  Lock- up,  could not be said to be free from  police  surveillance and influence. (3)  The Magistrate hardly gave 20 minutes to the  appellant for  reflection  before  recording his  confession.   It  is maintained  that according to the ruling of this Court,  the Magistrate should have given at 747 least 24 hours to, the appellant, to think and decide  while in the judicial lock-up, as to whether or not he should make a  confession. (Reliance in this connection has been  placed on  the decision of this Court in Sarwan Singh v.  State  of Punjab(".)). (4)  There  is  reason to suspect that after  recording  the confession,  the  appellant was handed back  to  the  Police Superintendent,  Shri  Srivastava  who  then  took  him   to Hanumangarh.   If  that  be a fact, it  would  amount  to  a contravention of sub-section (3) of Section 164 of the  Code of  Criminal  Procedure, 1973, giving rise to  an  inference that the confession was not voluntary. It is proposed  to deal with these points ad seriatim.   The learned Solicitor-General submits that at the relevant time, Shri  S. D. Kumar Bansal was posted  as  Munsif-cum-Judicial Magistrate  First Class at Sri Ganga Nagar, but he  used  to come  to  hold his Circuit Court at Raisingh  Nagar  for  15 days.   It  is pointed out that on June 12,  1974  when  the question of recording the confession of the appellant arose, no  Judicial  Magistrate of the First  Class,  competent  to record  a  confession, was available at  Ganga  Nagar.   Our attention has been invited to the entries in the  Roznamacha of Police Station, Sadar Ganganagar which reveal this  fact. Stress  has  also been placed on the fact that  no  question whatever was put to S/Shri Srivastava (P.W. 20) and Bhan-war Singh  (P.W. 21) in cross-examination to show that  on  June 12,  1974,  a Magistrate competent to  record  a  confession under  Section 164 Cr.P.C. was available at  Ganganagar  and that  the  appellant  was  taken  to  Raisinghnagar  with  a sinister  motive  or for extorting a confession.   There  is merit  in  the  submission made by  the  learned  Solicitor- General. The  relevant  Roznamcha entries of  Police  Station  Sadar, Ganganagar,  which  were proved by Bhanwar Singh, S.  H. O. (P.W. 21), have been read out to us.  From those entries, it appears  that the appellant was taken on June 12, 1974  from Ganganagar  to  Raisingh Nagar for getting  his  ’confession recorded  by a Magistrate, because on that date no  Judicial Magistrate  of the First Class was available at  Ganganagar. It  may  be  noted further, that  in  cross-examination,  no question  was put to Shri Bhanwar, Singh or Shri  Srivastava to  show that on 12-6-74 a Magistrate competent to record  a confession,  was  available  at  Ganganagar,  or  that   the

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appellant  was  taken  to Raisingh Nagar with  a  mala  fide motive,  although  the appellant was at the  trial  properly defended  by  Shri  Ganpat  Ram, who, we  are  told,  is  an experienced  lawyer.   There  is nothing on  the  record  to indicate  that the appellant was taken to Raisingh Nagar  to deprive  him of the opportunity of having independent  legal advice, or with any other oblique motive. As   regards  point  No.  (2),  the  appellant  during   his examination  under  Section 313 Cr.P.C.,  stated  :  "During those  days,  Kanshi  Prasad Ji was staying  in  the  Police Station,  Raisinghnagar  which is adjacent to  the  Judicial Lock-up, and used to see and threaten me".  Thereafter,  the confusional  statement  (Ex.   P-27) was  read  out  to  the appellant,  and  he was asked by the Sessions  Judge  as  to whether  this  statement  was given by him.   To  this,  the appellant replied : ’51 did (1)  (1957) S.C.R. 953. 748 not  give  this statement voluntarily.  I  have  given  this statement  under  compulsion  due to the  fear,  threat  and beating given by Shri Kashi Prasad." In  cross-examination,  no question was put  to  Shri  Kashi Prasad Srivastava to show that the Judicial Lock-Up Raisingh Nagar  is adjacent to the Police Station, nor was  he  asked whether  at the material time, he was staying in the  Police Station  Raisingh Nagar.  Shri Srivastava was however  asked as  to  whether he had compelled and beaten the  accused  to make the confessional statement.  This was sharply denied by him. Questions  were however put to Shri S. K.  Bansal,  Judicial Magistrate  (P.W.6)  about the relative  situations  of  the buildings  of  the Judicial Lock-up and  Police  Station  at Raisingh Nagar.  Shri Bansal stated that the Judicial  Lock- Up  is  at a distance of 150 to 200 feet from the  Court  at Raisinghnagar.   He was then questioned: "Is Police  Station Raisingh  Nagar  adjacent  to  the  Judicial  Lock-Up?"  The witness replied: "The Police Station is constructed near  it but  the building is a separate one.  I do not know  whether there  is any common wall in between or not.  I  cannot  say whether a man can peep through/’from tile common wall, which is  four feet high .... between the Police Station  and  the ’Judicial Lock-Up.  I do not know as to whether the doors of the Police Station and Judicial Lock-Up are in one side.   I cannot say whether the distance in between them is about  30 feet."  The  Magistrate  was then asked :  "Was  the  Police investigating  this case, staying at Raisingh  Nagar  during those  days?" The witness answered: "I cannot say, as I  had never been to Police Station Raisingh Nagar." The  evidence  of the Magistrate, referred above,  shows  no more  than  the fact that the Judicial Lock-Up  at  Raisingh Nagar  is  located in a separate building, near  the  Police Station.   But from the mere fact that the judicial  lock-Up is  located in the proximity of the Police Station, it  does not  follow that both are, under the control of the  Police. The  judicial lock-Up-as appears from the statement  of  the Magistrate,  Shri Bansal-is a Sub-Jail governed by the  Jail Manual.   The watch and ward staff of the  Judicial  Lock-Up are  under  the control of the Jail  Superintendent  or  the Magistrate  who may be the ex-officio Superintendent of  the Sub-Jail  (including  the  Judicial  LockUp).   The  precise position  as to whether Shri Bansal or any other  Magistrate was in charge of the Judicial Lock-Up is not clear from Shri Bansal’s  statement,  because he was  not  specifically  and fully  questioned  in regard to this aspect of  the  matter. Even  so, this much is clear that the Judicial  Lock-Up  was

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not  under  the control. of Shri  Srivastava.   Even  Police Station,   Raisingh   Nagar,   could  not   be   under   the administrative  control  of  Srivastava as he  was  not  the District  Superintendent  of  Police  but  belonged  to  the C.I.D.,  and  his  headquarter  was  at  Jaipur.   In  these circumstances, it cannot be believed that from 12th to  14th June  1974,  Shri Srivastava was staying in  Police  Station Raisingh  Nagar.   An Officer of his status,  belonging  to, another  branch  of the Police Department, normally  is  not expected  to use a Police Station for his board and  lodging while on tour.  Moreover. as already mentioned, not a single question was put to Srivastava or Bhanwar Singh to show that they halted in the Police Station. 749 kaisingh  Nagar is a Sub-Divisional Town.  There must  be  a Rest  House  or  an  Inspection Bungalow  for  stay  of  the Government  Officers on official tour.  Had  these  officers been  questioned  on this point, they would  have  disclosed their halting place which could be checked with reference to their T.A. Bills or the record maintained at the Rest House. No question was put to these officers as to whether they had at all visited the Police Station.  If Srivastava had really visited  the  Police Station during this period,  his  visit must  have been reflected in the Daily Diary of  the  Police Station.   The Daily Diary of the Police Station  was  never summoned.   It will therefore, be not unreasonable to  infer that the entries in the Daily Diary of the Police Station do not show that Srivastava visited this Police Station  during the period from 12th to 14th June, 1974. We therefore, do not find any substance in Point No. 2. It may be noted that despite a specific question put by  the Magistrate to the accused during his preliminary examination on  14-6-1974,  lie  (accused) did not  complain  about  any threat, inducement, pressure or beating given to him by Shri Srivastava   or  anybody  else.   The  courts   below   were therefore,  right  in  rejecting the belated  plea  to  that effect set up by the appellant. This  takes us to Point No. (3).  The argument is  that  the Magistrate  should  have  given at least  24  hours  to  the appellant  after his preliminary examination, to think  over the matter, in Jail, free from fear of the Police. It  is  true  that  the  interval  between  the  preliminary examination  of  the  appellant and  the  recording  of  his confessional  statement was about 15 minutes.  But there  is no statutory provision in Section 164 Cr.  P.C or elsewhere, or even an executive direction issued by the High Court that there should be ’an interval of 24 hours or more between the preliminary questioning of the accused and the recording  of his  confession.  The condition precedent for  recording  a confession  by  the  Magistrate in  the  ;course  of  Police investigation  is provided in Section 164(2)  Cr.P.C.  which mandates the Magistrate not to record any confession, unless upon questioning the accused person making it, he his reason to believe that it is being made voluntarily. In the instant case, the Magistrate fully complied with  the condition.   He  (Shri  Bansal) has  testified  that  before recording the confession he had fully satisfied himself that the accused wanted to make the confession voluntarily. The  large number of clear and pointed questions put by  him to  the appellant for this purpose and the answers given  by the  latter  have  been extracted in  full  earlier.   Their perusal  shows  that the Magistrate had  cogent  reasons  to believe that the confession was being voluntarily made. Although the interval between the preliminary questioning of the  appellant and his confession was about 15 minutes,  the

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appellant had no less than 38 hours at his disposal,  whilst he was in judicial custody 750 free  from  fear or influence of the Police,  to  think  and decide  whether  or not to make a  confession.   As  noticed already,  the  appellant  was  brought  from  Ganganagar  to Raisingh  Nagar  on  June 12, 1974 because on  that  day  no Magistrate  competent  to  record  the  confession  of   the appellant  was available at Ganganagar.  The  appellant  was admitted  to  the Judicial Lock-Up Raising Nagar  under  the orders of the Magistrate about or after 4 p.m. on that date. Thereafter,  the  appellant  continuously  remained  in  the Judicial Lock-Up or judicial custody till his confession was recorded  on  June  12, 1974 from 8.45  a.m.  onwards.   The Magistrate,  Shri Bansal was. aware that the  appellant  was continuously  in judicial custody since the evening of  June 12, for about 38 or 40 hours preceding the confession. In  Sarwan Singh v. State of Punjab (supra) this  Court  had emphasised   that   before  recording  a   confession,   the Magistrate  should see that the mind of the  accused  person was  completely free from any possible interference  of  the police.   In  that  context,  it  was  observed  that   "the effective  way  of securing such freedom from  fear  to  the accused  person is to send him to jail custody and give  him adequate   time  to  consider  whether  he  should  make   a confession  at  all." In this connection, it  was  suggested :..........  speaking  generally,  it would,  we  think,  be reasonable to, insist upon giving an accused person at least 24  hours  to  decide  whether  or  not  he  should  make  a confession."  The Court was careful enough to  preface  this suggestion  with  the  remark that "it  would  naturally  be difficult to lay down any hard and fast rule as to the  time which  should be allowed to an accused person in  any  given case." (emphasis added). It will be seen that how much time for reflection should  be allowed   to   an  accused  person  before   recording   his confession, is a question which depends on the circumstances of each case.  The object of giving such time for reflection to the accused, is to ensure that he is completely free from police  influence.  If immediately before the  recording  of the  confession, the accused was in judicial custody  beyond the  reach, of the investigating police for some days,  then such  custody from its very nature, may itself be  a  factor dispelling fear or influence of the police from the mind  of the  accused.   In such a case, it may not be  necessary  to send  back  the accused person for any prolonged  period  to jail or judicial lock-Up.  In the instant case, the  accused was  got admitted to the judicial lock-Up on the  12th  June for  getting his confession recorded under Section  164  Cr. P.  C., and such admission was made under the orders of  the Magistrate  who  ultimately recorded his confession  on  the 14th  June.  The accused was for about two days in  judicial custody beyond the reach of the police.  On June 13, 1974, a written  request was made to the Magistrate by  the  police, for recording the confession of the accused.  Even then, the Magistrate  postponed the recording of the  confession  till the  following day, obviously because he wanted to give  the appellant  one day more in judicial custody to  ponder  over the  matter free from Police influence.  On the  14th  June, notwithstanding  the fact that the accused Shankaria was  in judicial custody from the evening of the 12th June after the preliminary questioning, 751 the   Magistrate  allowed  15  minutes  more  to   him   for reflection.  Thus considered, Shankaria bad, as a matter  of

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fact, about 38 or 40 hours in judicial custody,  immediately preceding  the confession, and this was  rightly  considered sufficient  to secure freedom from fear or influence of  the Police to him (Shankaria). The  facts  in Sarwan Singh v. State of Punjab  (ibid)  were entirely  different.  Therein, the accused who  had  visible marks  of  injuries was straightaway brought by  the  Police from   its  prolonged  custody,  and  produced  before   the Magistrate   who   immediately   thereupon    recorded   his confessional  statement,  while  the  Police   Sub-Inspector remained outside in the verandah of the Magistrate’s office. The  Magistrate  did not ask the accused how he came  to  be injured.  It was in these circumstances that this Court held that the failure of the Magistrate to give adequate time  to the   accused  to  consider  the  matter,  stamped   it   is unvoluntary. The  facts  of the case in hand are, substantially  in  line with those of Abdul Razak v. State of Maharashtra(1)  There, the accused was kept after his arrest in police custody  for a  fortnight.   Then, after being kept in jail  custody  for three days, he was produced before the Executive  Magistrate for  recording confession.  The Magistrate after  a  warning sent back the accused to jail and then recorded his  confes- sion  on the following day.  Repelling the  contention  that the  accused  remained in prolonged police custody  and  his confession  was  not  voluntary, this Court  held  that  the accused  had spent four days in judicial custody and he  was not  under the influence of the investigating agency for  at least four days. For the above reasons, we negative the third point canvassed by Mr. Gambhir. As  regards  point No. (4) the Magistrate  has  stated  that after  recording  the  confession, he had  handed  over  the custody of the accused to the Challani guard i.e. the  guard who  bring  under-trials from the Judicial Lock--up  to  the Court.  The Challani guard was not under the control of  the investigating agency.  During the preliminary questioning of the  appellant,  the Magistrate had assured him that  in  no case-whether  he made a confession or not-he would  be  sent back   to  Police  custody.   Accordingly  the   Magistrate, according to his testimony, did not send the accused back to police  custody.   Instead,  the gave  the  custody  of  the appellant  to  the  Challani  guard,  which  means  jail  or judicial custody. A  suggestion  was put to Shri K. P.  Srivastava  in  cross- examination,  that after the confession bad  been  recorded, the  accused  was taken to Hanumangarh and the  witness  had accompanied   him.    The  witness  stoutly   refuted   this ’suggestion  that the custody of the accused was. after  the confession,  given to him or the investigating  Police.   He however, affirmed that the accused was sent to the  judicial lock-up Hanumangarh.  There was no good reason to disbelieve the   evidence   of   the  Magistrate  P.W.   6)   and   the Superintendent of Police (P.W. 22) (1)  A.I R 1970 S.C. 283 752 to  the  effect  that after recording  the  confession,  the custody  of the accused was not handed to the  investigating police. Mr.  Gambhir’s  contention,  therefore,  is  not   factually correct.   There was no infringement of sub-section  (3)  of Section 164 Cr.  P.C. Thus, all the four points pressed into argument by Mr. Gambhir, fail. Another  circumstance which reinforces the conclusion  about the confession being voluntary is that it was not  retracted

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at the earliest opportunity.  The confession was recorded on June  14,  1974.   The trial of  the  accused  commenced  on January 10, 1975 when charges were framed and read over  and explained  to the appellant by the Sessions Judge.   At  the trial,  he was defended by Shri Ganpat Ram, who, as  already observed,  was an experienced lawyer.  The trial dragged  on for  several months, because witnesses were examined  piece- meal  on  different  dates.  The  prosecution  evidence  was closed  on June 14, 1975 and the accused was  then  examined under  Section 313 Cr. P.C. It was during such  examination, the  appellant for the first time retracted  the  confession and took up the plea that he had made it under duress of the police. After bestowing our best consideration to all the  questions bearing  on  the  ’point,  we are of  opinion  that  in  the circumstances  of  the  case, the High Court  was  right  in coming  to the conclusion that this confession (Ex.  P.  27) had been voluntarily made by Shankaria, accused. The next question is : Whether the confession (Ex.  P-27) is true?   In  this  connection, it may be  recalled  that  the appellant did not ’say that he was tutored by the Police  to make  this  confession.   He  did not  say  that  the  story adumbrated  in the confession (Ex.  P--27) was put into  his mouth  by  somebody  else.  He did not deny  the  factum  of making this confession.  His plea in ’substance was that  he had  made it but under compulsion and threat.   He  however. added that "the statement (Ex.  P. 27) is false." A  perusal of the confessional statement (Ex.  P.  27  would show  that  prima  facie there,  is  nothing  improbable  or unbelievable in it.  It appears to be a spontaneous account, studded  with  such vivid details about the  manner  of  the commission  of  the  crimes  in  question,  which  only  the perpetrator of the crimes could know. Now  let us compare the statement (Ex. 27) with the rest  of the evidence. In Ex. 27 the accused has inter alia stated facts which  may be rearranged as under. (1)  About  midnight he took off his clothes,  chappals  and tried to climb the wall by the side of the railway line. but could  not succeed.  Therefore, he climbed the wall  through the side. (2)  One  Kassi  was  lying  there  in  a  comer.   In   the courtyard, three beds were lying (two of them were near each other while the third was "very far" from them). 753 (3)  "I  picked up the Kassi and hit with its  reverse  side one  of  those  persons, on the  head.   Thereafter,  I  hit another  person.  I hit the third person "after running"  to him, "as he was sleeping very far." (4)  "I then drank water, entered the kitchen but could  not find  anything in spite of search.  Then I  entered  another room,  opened the Kunda( Khuta), there a short  (shirt)  was lying  from which I took out a key.  I broke open  the  lock and got Rs. 700/- and got nothing else during the search." (5)  "Then  I broke open the lock of another house with  the help of Subble.  There I was able to get Rs. 400/-". (6)  "I  then remained there for much  time........  brought water from the nearby johar in a bucket, and bathed myself." (7) "Thereafter,I went to Bhatinda.  In the          evening (i.e.  on 9-9-73) at 10 p.m. proceeded by train to  Bikaner. I stayed for two days at Bikaner. After two days, I went  to Delhi  and  stayed  there  for  two  days.   From  Delhi,  I proceeded for Haridwar and stayed there in a rented room  at Rs. 12/- per day." Facts   (1)  to  (6)  in  the  confession  (Ex.  27),   find

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corroboration,  firstly,  from the  reliable  circumstantial evidence brought on the record by the prosecution.  Ex.   P- 8A  is  a memorandum which was prepared  by  A.S.I.  Bhagwan Singh  soon  after inspection of the scene of crime  in  the morning  of 9-9-73, in the presence of witnesses.   In  this memorandum,  be noted the physical facts observed by him  at the  scene,  which according to his lights,  were  relevant. This explanatory memorandum is an annexure to the rough site plan  (Ex.   P-8)  which  was then  prepared  by  him.   The veracity  of  this site-plan (Ex.  P-8) and  the  memorandum (Ex.   P-8A) was never impeached.  No: question was  put  to Bhagwan   Singh  in  cross-examination  to   challenge   the genuineness of these documents.  Nor was any suggestion  put to  him that these documents were prepared  subsequently  or that the facts noted therein were wrong. In the memorandum (Ex.  P-8A), Bhagwan Singh has inter  alia noted :                "The  bare-foot  prints of  the  culprit  are               present  at  the  outer  side  near  the  wall               towards the Western (side) of the Gurdwara  at               No.  7. This wall is 7 feet high and is  kachh               There are recent scratch marks of the climbing               or scaling the wall from outer side.  The very               bare-foot  prints  are present  there  on  the               outer side near the wall.  It is through  this               way  that  the  culprit  entered  inside   and               reached  the  cots  of  *  *  *  the  sleeping               persons." The  circumstantial  facts noted in the above  extract  tend assurance to the portion No. (1) of the confession. Assistant  Sub-Inspector Bhagwan Singh has further noted  in the memorandum (Ex.  P-8A) and the site-plan (Ex.  P-8)  the presence  of three cots of the victims in the  courtyard  of the Gurdwara.  The 754 dead body of Kartar Singh with head injury was lying of  one cot at point No. 2 shown in the site-plan.  Wazir Singh  lay injured on a cot at a distance of 6 feet from that of Kartar Singh,  while Mada Singh was lying injured on a cot  8  feet farther  away.  The blood-stained Kassi (Art. 1)  was  lying near   the  cot  of  Wazir  Singh.   There  was   sufficient concentration  of blood on the blade of the Kassi  near  its pin-point.  There was blood underneath all the three cots. These facts observed by A.S.I. Bhagwan Singh and recorded in Ex. P-8 and Ex.  P-8A, inferentially lend assurance to  what was  stated  by the appellant in the portions (2)  and  (3), above extracted from his confession (Ex. 27). In Ex.  P-8 and Ex.  P-8A, Bhagwan Singh noted the  presence of bare foot-prints in the bath-room and the kitchen  (shown at  point Nos. 23 and 24, respectively, in  the  site-plan). He  further observed the marked resemblance of  these  foot- prints  with the foot-prints supposed to be of the  culprit, found  near the cot on which the sant (divine) lay  dead  in the vicinity of the courtyard.  He has shown these points by arrow  marks in the site-plan.  Bhagwan Singh  has-  further noted  in  the  said document that at  the  site  the  locks including  be  detached bolts are lying  near  the  detached frames  of the three residential rooms.  He has  also  noted how  clothes, small coins, iron trunks and  other  household articles were lying scattered in the rooms. These  circumstantial  facts found at the spot tell  a  tale which  is consistent with the one told by the  appellant  in the portions (4), (5) and (6) of his confessional statement. The  portion  marked (7) of the confession  receives  direct support  from the evidence rendered by Sita Ram  (P.W.  13),

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and  the record (Ex.  P-36) of the hotel at  Haridwar  which bears  the signatures of the appellant Ratan Lal and of  the witness,  Sita  Ram.   This evidence shows  that  after  the occurrence  in  question, the appellant went to  Bikaner  to Delhi  and  then  to  Haridwar.  He stayed  in  a  hotel  at Haridwar paying Rs. 12/- per day on 13-9-73 and 14-9-73. Mr.  Gambhir contends that the medical evidence  contradicts the  confession  inasmuch as it is stated therein  that  the appellant caused only one injury to each of the victims with the reverse side (i.e. the pin-point) of the Kassi (Art. 1). The contention is devoid of merit.  As already noticed,  Dr. Bahadur Singh clearly stated that the incised injuries found on  the victims could be caused with the sharp edge  of  the Kassi  (Art. 1) while their other injuries could  be  caused with the reverse side of the same Kassi.  It may however, be conceded  that from the medical evidence the possibility  of the assailant having given more than one blow to the victims cannot be ruled out.  But in his confessional statement, the appellant  is not categorical with regard to the  number  of blows inflicted by him on the victims.  All that he says is, that he hit each of the three victims, one after the other, in  quick  succession, on the head.   The  medical  evidence shows’ that the blows on the heads of the victims had been 755 given  with  great force.  The autopsy of Kartar  Singh  and Mada  Singh revealed that their skull-bones had been  broken into  fragments.   The first blow received by  each  of  the three sleeping victims, two of whom were blind persons, must have stunned them into coma. Be  that as it may, the failure of the appellant to  say  in his confessional statement the precise number of blows given to  the victims, does not amount to a  material  discrepancy between  the confession and the medical evidence.  The  fact remains   that   the  medical  evidence   corroborates   the confessional  statement inasmuch as it is  mentioned  herein that the injuries to the victims were caused with a Kassi. The report of the Chemical Examiner and the Serologist shows that  human  blood was found on the Kassi  (Art.  1).   That report  further  confirms the  confessional  statement  with regard to the use of this weapon in assaulting the victims. The  courts below have further relied upon the  circumstance that a finger-print on the dibbi (Article 2) from which  Rs. 400/-  in cash, kept by Karnail Singh (P.  W. 15)  had  been stolen  by  the  culprit,  was identified  as  that  of  the appellant.   The  prosecution  case  was  that  among  other articles,  this dibbi (tin box) was lying in a room  in  the yard of the Gurdwara.  A.S.I. Bhagwan Singh while inspecting the   scene  of  occurrence  on  9-9-73,  saw  some   finger impressions  on it.  He, therefore, took it into  possession and sealed it into a packet, vide seizure memo (Ex.  P. 14) in  the presence of witnesses.  Thereafter, he deposited  it with  seals  intact in the Malkhana of the  Police  Station, Sadul  Sahar,  and nobody tampered with it so  long  as  the witness  remained posted in the Police Station.  The  sealed parcel  containing  the Dibbi was sent to the  Finger  Print Expert  under cover of a letter, dated June 29,  1974,  from Shri  Kashi Prasad Srivastava (P. W. 22), This  witness  (P. W. 22) testified that the seals on the parcel containing the dibbi  were  intact  when it was sent to  the  Finger  Print Expert.  Mr. Gambhir submits that the parcel containing this Dibbi   was  not  sent  to  the  Finger-Print   Expert   for photographing and preserving the finger-prints said to  have been  found on it, till the 29th June,, 1974, i.e.  24  days after  his  specimen finger impressions were  taken  by  the Police.   It  is pointed out that no  explanation  has  been

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given  by the prosecution as to why this Dibbi was not  sent to the Finger-Print Bureau, Jaipur, soon after its  seizure, for taking enlarged photographs of the alleged finger-prints on it.  It is argued that in view of this unexplained  delay in  sending the dibbi to the Finger-Print Expert,  there  is reason to suspect that the finger-print of the appellant  on the  Dibbi might have been obtained by force or trickery  by the  police  after his arrest.  In this  connection,  it  is emphasised that the prosecution has not led any satisfactory or  independent  evidence  that the  ’seals  on  the  parcel containing  this  Dibbi  remained intact and  had  not  been tampered  with  till  it was sent on June 29,  1976  to  the Finger-Print Expert and was opened by him. A similar contention was raised before the High Court.   The learned Judges repelled it with these observations :               "There  is no doubt that the  prosecution  has               failed to lead evidence that the finger-prints               on the ’dibbi’ Art. 2 were               75 6               not tampered with from 9-9-73 to 29-6-74  when               they were sent to the Finger-Print Expert.  As               stated  above. there is ample evidence on  the               record  that  when  the  ’dibbi’  Art.  2  was               recovered,  it  was  sealed.   P.W.  22  kashi               Prasad  has  stated that the seals of  Art.  2               were  intact when they sent it to the  Finger-               Print  Expert.  P. W. 16 Shri Tankha has  also               stated  that the seals on Art. 2  were  intact               when  they  were received by  him.   The  most               important thing, which is to be kept in  mind,               is that the finger-prints of one individual do               not tally with the finger-prints of any  other               individual.   The science of finger-prints  is               itself a complete science for the purposes  of               identification.   In what manner  the  finger-               prints  of  the accused Shankaria  on  Art.  2               ’dibbi’  could be tampered with, has not  been               argued or suggested’ The finger-prints on Art.               2  have. on examination, been found  to  tally               with   the  specimen  finger-prints   of   the               accused.  Tampering of fingerprints on Art.  2               would mean that some other finger-prints  were               super-imposed  or substituted.  But  no  other               fingerprints  could  be substituted  or  super               imposed  which would resemble and  tally  with               the  finger-prints of the  accused  Shankaria.               Accused  Shankaria  in his  ’statement  "under               Section 342 (343 ?) Cr.  P. C. recorded on 14-               6-1974  and  23-6-74  has  not   categorically               stated that his finger-prints were obtained on               an  article like the iron ’dibbi’ Art.  2.  In               the  absence  of such a plea  by  the  accused               Shankaria, the non-production of some evidence               on  the  part  of  the  prosecution  that  the               finger-prints were kept intact during all this               period, loses all its importance........... In               view  of  these  circumstances,  we  have   no               hesitation  in holding that the  finger-prints               on  the  iron  ’dibbi’ Art.  2  could  not  be               tampered with.  As a matter of fact, as stated               above,  the  finger-prints  could  neither  be               substituted  nor superimposed, and  therefore,               the  apprehension  of the  de-fence  that  the               finger  prints could be tampered with, in  the               absence   of   such   evidence,   is    wholly

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             unfounded." While  we agree with the conclusion of the High  Court  that there was no good reason to suspect that the finger-print of the appellant found on the dibbi, Art. 1, was a fabrication, we will like to clarify and elaborate a little the reasoning by which this conclusion is arrived at. The first aspect  of the  matter which needs clarification is that this is not  a case where the prosecution had led no evidence, to show that the finger-prints on the dibbi, Art. 1, from the date of its seizure  to  the  date they were sent  to  the  finger-print expert,  were  intact  and  had  not  been  tampered   with. Firstly, there was the evidence of A.S.I. Bhagwan Singh  (P. W. 16) that when in the morning of 9-9-73, he inspected  the scene of occurrence, in the presence of witnesses, he  found the dibbi, Art. 2, in the room of the Gurdwara.  Some  small coins were lying scattered near it.  He saw finger marks  on this  Dibbi.  He therefore, seized it and sealed it  into  a parcel  in  the presence of the witnesses and  prepared  the memorandum, Ex.  P-14, Bhagwar Singh clearly stated that  he bad  deposited  the  parcel,  with seals  in  tact.  in  the Malkhana and nobody tampered with them so long as 757 remained in his charge.  Secondly, there was the evidence of Shri  Srivastava  that  on 29-6-74 when  the  sealed  parcel containing  the Dibbi was sent to the  Finger-Print  Bureau, Jaipur, the seals on it were intact. The  only deficiency in the evidence on this point  is  that Bhagwan  Singh  was not asked about the date upto  which  he remained  incharge  of  the Malkhana  or  posted  in  Police Station  Sadul  Sahar.  In cross-examination,  he  expressed ignorance  as  to when the foot-moulds or the  ’dibbi’  were sent   to  the  Finger-Print  Expert.   Probably,   he   was transferred  from this Police Station sometime  before  that date.   At  the  date of his deposition  (10-3-75),  he  was posted   in  Police  Station  Hindu  Mal  Kot.   In   cross- examination,  it  was  suggested  to  P.  W.  16,  that  the "recovery memos of foot-print moulds and dibbi were prepared after the accused was arrested.  The witness sharply  denied this suggestion. The failure of the prosecution to bring out these details in evidence, in the circumstances of the case, is no ground  to suspect,  that the finger impressions on the Dibbi had  been tampered  with or fabricated.  It will bear repetition  that the genuineness of the explanatory note (Ex.  P-8A) attached to  the Site Plan, was not questioned by the  defence.   The presence  of the dibbi (Art. 2), bearing some finger  marks, and its seizure and sealing find mention in this document. However, the authenticity of memo (Ex.  P-14) in which the presence of finger-impressions on two sides of this dibbi is mentioned.--was   questioned,  halfheartedly..   This   memo purports to bear the attestations of three witnesses, namely :  Mithu Singh (P.  W. 9) Shyam Singh (P.  W. 3) and  Jagger Singh (P.  W. 8). The High Court appears to have accepted their evidence  with regard to the seizure of this dibbi, without discussion.  We will there briefly refer to the ’same. All  these three witnesses speak with regard to the  seizure of the Dibbi (Art. 2) by A.S.I. Bhagwan Singh from the scene of   occurrence  on  9-9-73,  although  there  are   natural Variations in regard to details in their evidence. Shyam  Singh, P. W. 3, stated, "one’ Dibbi" was  also  taken into possessi on by the police from there and ’sealed.   Its recovery  memo,  Ex. P-14, heirs my signature.   The  Dibbi, Art. 2, present in the Court, is the same." The witness gave the  time  of taking this Dibbi into possession, at  8  a.m.

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Mithu  Singh, P. W. 9, corroborated Shyam Singh, P.W. 3.  He also identified his signature on the memo (Ex.  P--14). Both  these witnesses sharply refuted the suggestion put  to them by the defence counsel, that the seizure memo, Ex.   P- 14 was prepared wrongly, after the arrest of the accused. Even  Jagger  Singh, P. W. 8, who was allowed to  be  cross- examined  by the Public Prosecutor, testified that the  iron Dibbi,  Art. 2, had been lifted from the spot and sealed  by the Police in his presence. 758 He,  however, stated that "the seizure memo Ex.  P-14,  does not  bear  my ’signature".  This may be due to  a  lapse  of memory.  It does not appear from the record, that  the  memo Ex.  P-14 was shown to him when this question was asked. Nothing  was brought out in the cross-examination  of  these witnesses,  particularly P. W. 3 and P. W. 9, to  show  that they  were not speaking the truth.  Their evidence taken  in conjunction   with  that  of  A.S.1.  Bhagwan   Singh,   had established beyond all manner of doubt that when this  Dibbi was  found at the scene of crime on 9-9-73, it  had  finger- prints  on both sides which could be of the culprit who  had opened  it and taken away Rs. 400/- from it.  That  was  why A.S.I.Bhagwan  Singh  sealed it there and then  to  preserve those finger-prints- During  his examination at the trial, the appellant did  not say  in positive specific terms, that after his  arrest,  he was  made to handle the Dibbi (Art. 2); what  the  appellant then stated on this point was as. follows : "The  police  had taken many moulds in  the  police  station after  my  arrest so also many palm impressions  on  various things  were not made. I do not know whether the  dibbi  was included  amongst  them or not." When the  evidence  of  the Finger-Print  Expect,  Mr. P. N. Tankha (P. W. 18),  to  the effect-that  one  finger impression on the  dibbi,  Art.  1, tallied with the middle finger-print of the left hand of the accused  was  put to Shankaria, the latter answered  :  "The witness  tells false."’ This reply would be consistent  only with  the position that his fingerprints on the  dibbi  were not taken after his arrest. The  failure  of the appellant to say in  categorical  terms that  after  his arrest he was made to  handle  this  Dibbi. Art.  (2),  cuts at the root of his vague and  omnibus  plea that  all  evidence,  including  that  of  the  foot-moulds, finger-prints,  etc. had been fabricated by the Police.   In the  first  place, as rightly observed by  the  High  Court, fabrication of the fingerprints in the circumstances of  the case was difficult, without super-imposition.  Secondly,  it is impossible to believe that an investigator of the  status of  a  Superintendent of Police, would go to the  length  of causing  substitution of the fingerprints of the accused  in place of the original finger-print of another person on  the Dibbi. Mr.  Gambhir next contends that in view of Section 5 of  the Identification  of Prisoners Act, it was incumbent  on  the police  to  obtain  the specimen  thumb-impressions  of  the appellant before a Magistrate, and, since this was not  done the opinion rendered by the Finger-Print Expert, Mr. Tankha, by   using   those  illegally   obtained   specimen   finger impressions, must be ruled out of evidence. The  contention  appears to be misconceived because  in  the State of Rajasthan, the Police were competent under  Section 4  of  the Identification- of Prisoners Act,  to  take  ’the specimen fingerprints of the accused, and this they did,  in the instant case, before the Superintendent of Police,  Shri K. P. ’Srivastava.  It was not necessary for them to  obtain

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an  order  from the Magistrate for obtaining  such  specimen fingerprints. 759 In  view of all that has been said above, the  presence,  of the fingerprint of the appellant on the Dabbi, Art. 1,  from which cash was stolen at the time of occurrence, is a  tell- tale   circumstance  pointing  towards  the  guilt  of   the appellant. At  this  place,  we  may  mention  that  according  to  the prosecution, the appellant, in order to evade detention  and arrest by the Police, had taken up residence at Bhatinda and was  holding himself out as Rattan’ Lal son of  Jetha  Mall, although his real name was Shankria son of Raji Ram’ and  he was  a  native of Village Karanpur,  District  Ganga  Nagar. Subhash P. W. 23, was examined by the prosecution to  estab- lish  this fact.  P. W. 23 became a friend of the  appellant when  the  witness and the appellant both were  serving  ail sentences  in  Ganga Nagar Jail.  P. W. 23  had  helped  the Police  in  arresting the appellant from Bhatinda.   At  the trial  also, P. W. 23 identified the appellant as  the  same person.   The evidence of P. W. 23 has been believed by  the courts  below and Mr. Gambhir has not assailed it before  us on any tangible ground. Now. remains the evidence of the foot-moulds.  These, moulds were prepared from the foot-prints of the suspected culprit, found in or near about the Gurdwara on 9-9-73.  On  16-6-74, specimen bare-foot prints of the appellant were taken before the Additional District Magistrate and specimen  foot-moulds were  prepared therefrom.  The two sets of foot-moulds  were sent  to the Expert, Mr. Tankha, at Jaipur on  29-6-74.   W. Tankha testified at the trial that the foot-mould 5 (of  one of the bare-foot prints found at the scene of crime) tallied with the specimen left foot-mould of the appellant. Although  the science of identification of  foot-prints  and foot-moulds is not a developed science, and track  evidence, by itself, may not be deemed sufficient to carry  conviction in a criminal trial, yet it is a relevant circumstance which taken  into  account  along with  the  other  evidence,  may reinforce the conclusion as to the identity of the  culprit. In  the  instant  case,  the  other  evidence  per  se,  was sufficient  to  fix the identity of the appellant  with  the crime.  The evidence of similarity of the foot-moulds  taken in conjunction with the circumstance,’ that If at the  scene of occurrence there were bare-foot prints which appear to be of  one  person,  does lend further assurance  to  what  the appellant  has  stated in his confessional  ’statement  with regard to his going about bare-footed inside and outside the Gurdwara  at or about the time of committing the  crimes  in question. To  sum up, it was cogently established that the  confession (Ex.   P-27) was voluntarily made and it is true.   Further, it  receives assurance in several material particulars  from reliable  independent evidence, mainly of  a  circumstantial character.  The confession.  Ex. 27, coupled with the  other evidence  on  the  record, had  unerringly  and  indubitably brought home the charges to the appellant,. The  crimes  were committed in a most brutal  and  dastardly fashion.   The  victims were taken unawares when  they  were asleep.   Two  of  them were blind  persons.   His  Neronian conduct  even  after-the occurrence in  languishing  in  the stricken premises, looking for something to 760 eat in the kitchen, drinking water, smoking Bidis,  bringing water  and bathing himself, mindless of the specter  of  the slain  and  the groans and gasps of the  dying,  betrays  an

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extreme  depravity  of character.  The grisly  and  gruesome nature of the murders, the hapless and helpless state of the victims,  the  fiendish modus operandi of the  appellant  to first  kill  and then steal-all, steel the heart of  law  to call for its extreme penalty. For  all  the  foregoing reasons, we  dismiss  this  appeal, affirm  the  judgment  of the High Court  and  maintain  the conviction  of  the  appellant and  the  sentence  of  death awarded  to  him for the murders of Kartar  Singh  and  Mada Singh. S.R.                          Appeal dismissed. 761