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PETITIONER: NAND KUMAR & OTHERS

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 03/05/1962

BENCH:

ACT: Criminal  Trial--  Retracted  confession--   Corroboration-- sufficiency.

HEADNOTE: The appellants were convicted under s. 302 Indian Penal Code and  also s. 377 and s. 395 of the Indian Penal  Code.   The Trial Court and the High Court had based the convict ions on the  retracted confessions of each of the first  three  app- ellants  supported by other circumstances in evidence and  o circumstantial and other evidence in the case of the  fourt- appellant.   On special leave it was contended that the  con fessions  of the first three appellants were  not  voluntary and   even  if  voluntarily  they  were   not   sufficiently corroborated by other circumstances and that the  conviction of  the  fourth  appellant  was  not  based  on   sufficient evidence. Held  ,  that  what is  sufficient  corroboration  for  this purpose has to be decided in each case on its own facts  and circumstances.   It may, however, be generally  stated  that where the prosecution by the production of reliable evidence which is independent of the confession and which is also not tainted 891 evidence like the evidence of an accomplice or the  evidence of  a co-accused, establishes the truth of certain parts  of the  account given in the confession and these parts are  so integrally  connected  with  other parts  of  the  accused’s confession,  that  a prudent judge of facts would  think  it reasonable  to believe, in view of the established truth  of these  parts,  that  what  the accused  has  stated  in  the confession as regards his own participation in the crime  is also true, that is sufficient corroboration.  More than this is not needed; less than this is ordinarily insufficient. Held,  further,  that  in  the  case  of  the  first   three appellants there was sufficient corroboration and that there was sufficient evidence in the case of the fourth appellant.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 181 of 1961. Appeal  by special leave from the judgment and  order  dated October  14, 1961, of the Rajasthan High Court in D. B.  Cr. As.  Nos. 263, 264, 278 and 280 to 282 and D. B. Cr.  (Death Sentence and confirmation) Case No. 5 of 1961. O.C. Chatterjee, Renu Chatterjee and S. N. Mukherjee, for the appellants.

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A.S.  B.  Chari,  Kan  Singh and P.  D.  Menon,  for  the respondent. 1962.   May  3.  The following Judgment  of  the  Court  was delivered by DAS GUPTA, J.-On June 4, 1960 eight boys (1) Munna  son   of Manohar Lal; (2) Ram Prakash son   of  Ram Baboo; (3)  Laxmi son of Vidhya Ram; (4)   Pooran  son  of  Gulab  Chand;  (5) Kedar son of Ram    Kumar; (6) Mohan son of Banke Lal; (7) Suresh son of Chandra Shekhar and (8) Jagdish son of Mitthan Lal, all of Dholpur City went to the temple of Mangal Bharti for  a Picnic.  None of them returned home.  On the  morning of  June  6, all these boys were found dead near a  well  in Gundarai forest.  Each of the bodies bore numerous injuries, which according to the evidence of 892 doctor,  who  held the post mortem examination,  caused  the deaths.  Seven of the bodies were found naked; only the dead body  of Munna had clothes on.  The hands of each were  tied from behind with ribbons of their trousers and their  mouths were found gagged.  Watches and rings, buttons and  currency notes,   which  some  of  these  boys  had  with  them   had disappeared. The  four appellants, viz., Nand Kumar, Brij Kishore,  alias Kalua,  Lakhan  and Murari along with one Jagdish  were  all convicted for the murder of these eight boys under s. 302 of the Indian Penal Code and were all sentenced to death.   All of them were also convicted by the additional Sessions Judge under  a.  377 of the Indian penal Code and s.  395,  Indian Penal Code. The  conviction  of these four appellants under s.  302  was confirmed by the High- Court of Rajasthan and the  sentences of.  death passed on Nand Kumar, Kalua and Lakhan were  also confirmed.  The High Court reduced the sentence on Murari to one  of  imprisonment for life.  The conviction of  all  the appellants  under  s. 395 of the Indian Penal Code  and  the sentences  passed thereunder were also confirmed.  The  pre- sent appeal is by special leave granted by this Court. The  prosecution  case is that when the eight boys  were  at Mangal  Bharti temple on June 4, 1960 these four  appellants and  Jagdish joined them there.  In the evening before  they all  left  the temple, these appellants took Munna  and  his seven  companions one by one into a narrow lane  behind  the temple and robbed them of their belongings and valueable  by force.   All  the  13 then left the temple to  get  her  but instead  of returning to Dholpur City, the  appellants  took the  boys to  the Gundarai forest.  It is said  that  before the appellants 893 took  the boys to Gundarai they had agreed among  themselves to  murder them.  They all waited near a. pillar till  about 9.30 p.m. after which while Jagdish and Murari remained near the  boys  to St keep watch over them  Jagdish  being  armed with  a  gun  first of all Munna was called  away  from  the other boys and. killed by the other three, viz., Nand Kumar, Kalua and Lakhan.  The other seven were also taken away  one by  one and killed by these three.  For these killings  they used  a knife which belonged to Murari and which Murari  had brought with him on that day.  After all the eight boys  had been  killed  the booty was distributed  among  these  five. Nand  Kumar took in his share an agfa camera which had  been taken from Munna and also Munna’s wrist watch; Lakhan got  a wrist  watch and a ring which had belonged-to  Ram  Prakash; Kalua’s share was a wrist watch belonging to Laxmi Chand and also a ring which belonged to him.  Murari got four  bottons and some money in cash and Jagdish also got some buttons and

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cash. The  relatives of the boys had become anxious when the  boys did  not  return  on the night of  June  4  Information  was received from Puran, also of Dholpur City, who had also gone to the Mangal Bharti on that day that he had seen the  eight boys  and  also  Nand  Kumar,  Kalua,  Jagdish  .and  Murari together at the Mangal Bharti.  Enquiries were then made  at the houses of these five but they were all found absent.  On the  following morning, i.e., the 5th June, 1960 at 6  a.m., Shiv  Narain, the brother of Munna lodged  information  with the Kotwali police Dholpur about the disappearance of  these boys.   He  added his suspicion that these boys  might  have fallen  into  the hands of dacoits belonging  to  the  Panna dacoit’s  gang  and kidnaped by them.  On the  same  day  at about 10 p.m. Bhanwar Singh, the Circle Inspector of 894 Dholpur   succeeded   in   contacting   these    appellants. Ultimately   all  the  five  made  statements   which   were recorded,’.  giving information about their having kept  the articles  taken from some of the boys.  At about 4  a.m.  on June 6, 1960, the Circle Inspector accompanied by the Deputy Superintendent  of  Police  left for Gundarai  forest  in  a police  jeep a long with the appellant Nand Kumar  and  some other  persons.  Nand Kumar led the police to the top  of  a small bill and pointed out the five cycles of Munna and  his companions  lying  at one spot and the dead  bodies  of  the eight boys lying at different places in the vicinity of  the hill in the jungle.  He also took out a knife, Ex- 18,  from a bush near one of the dead bodies.  Then Nand Kumar went to his house with the police and there pointed out a camera and a  wrist  watch  which had fallen to  his  share.   He  also brought out certain blood-stained clothes.  After this.  the appellant Murari was taken by the police to his house and he brought  out  a  gold  ring with  the  name  of  R.P.  Gupta inscribed in enamel., a wrist watch belonging to R. P. Gupta deceased  and  some bloodstained clothes.  The  police  then took Murari to his house where Murari brought out some  gold buttons  and currency notes.  Then Kalua took the police  to his house and brought out a wrist. watch and a ring  inscri- bed with the name of S. K. Gupta and also some blood stained clothes.   According  to  the  prosecution  three  of  these appellants,   viz.,   Nand  Kumar.Murari  and   Kalua   made confessions before the Sub-Divisional Magistrate which  were recorded  by  the Magistrate  Nand Kumar on the  14th  June, Kalua  on  the  15th June and Murari on the  16th  June.   A statement  of Lakhan was also recorded by the Magistrate  on the 15th June, 1960. All  the accused pleaded not guilty. They denied  that  they had made any statement at all before 895 the Magistrate and also denied the recovery of any  articles from their houses. The conviction of each of the three appellants, Nand  Kumar, Kalua  and Murari on the charge of murder was based  by  the Trial  Court  and the High Court on the confession  said  to have been made by him taken with the circumstances which the Courts   below   considered  sufficient   corroboration   to established the truth of what was stated in the  confession. On behalf of each of these appellants it has been  contended before us that the confession was not voluntary and was  not admissible  in  evidence, and secondly, that there  was  not sufficient  corroboration  to  establish the  truth  of  the confession.  On behalf of Nand Kumar an additional plea  was pressed that he made no confessional statement at all before the  Magistrate  and the document which is now  produced  as

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record  of his confessional statement was written up in  his absence  on papers on which Nand Kumar has been made to  put his signature.  The argument of the learned Counsel, so  far as  we  can understand it was that the jail  register  entry showing 1.25 as the time when Nand Kumar was brought back to the jail on the 14th June 1960 was originally 10.25 but  had been  dishonestly  altered  to 1.25  by  erasing  the  zero. Proceeding  on the basis that 10.25 was the time  noted  the learned  Counsel argues that this shows that Nand Kumar  was not before the Magistrate from 10.30 onwards when  according to  the record of the confession, Ex-62, the Magistrate  was recording his confession.  In the first place we do not find any  reasonable  ground  for the  thinking  that  the  entry originally made was 10.26. As the entry stands, it is 1.  25 and  there  is no evidence, circumstantial or  otherwise  to indicate that it was not so all along’ Even supposing it was originally   10.25  and  then  altered  to  1.25  the   only reasonable  conclusion  would be, if  the  Magistrate’s  own evidence on the presence of the accused before 896 -him  is taken into consideration, that somebody had made  a mistake  in making the entry and then corrected it to  1.25. We  agree  with the High Court that there is  absolutely  no reason  to  about the testimony of the  Magistrate  on  this point and there can be no possible doubt whatsoever that the record Ex-P-62 contains’ what was stated by the accused Nand Kumar before the Magistrate on June 14, 1960.  As  regards each of these confessions, the learned  Counsel has urged, as already, indicated, that it was not voluntary. Three grounds were urged in support of the contention.  They are,  (1) that there was a delay of about a week or more  in sending  the  accused to the Magistrate  for  recording  the confessions; (2) that Circle Inspector Paras Singh  ’visited the  Judicial  lock up, where these confessing  accused  had been  kept  on the 13th June; and (3)  that  the  confessing accused  had been kept in solitary cells. that  any  enquiry was made from the Investigating officer as to why he did not send  up the accused for recording his  confession  earlier. But, if, as is suggested by the learned Counsel, the accused persons  were  ready to make their  confessional  statements before  the Magistrate as early as the 6th June, it  is  not clear  to us what the police stood to gain by  delaying  the recording  of these confessions.  On the contrary, it  would seem  natural for the police to hurry up with the  recording of the confessions lest on second thoughts the accused might refuse  to make the statement.  In considering the visit  of Paras Singh to the judicial lock-up on the 13th June we have to  remember that though Paras Singh was not examined  as  a witness  by  the prosecution the prosecution  did  offer  to examine  him when in the course of the argument a  grievance was sought to be made by the defence of  897 such  non-examination.  The Sessions Judge was  prepared  to examine  him as a Court witness but the defence objected  to it.   It is not open, therefore, to the Defence Counsel  now to complain that Paras Singh was not examined. It  is not disputed that Paras Singh did visit the  judicial look-up  on the 13th June.  From the petition on, which  the order  permitting  him  to visit the jail was  made,  it  is reasonable  to think, however, that this visit was made  for steps  in  the investigation in some other  case  having  no connection  with The present accused.  No doubt, as  regards the  voluntary nature of the confessions, therefore,  arises from  this visit of Paras Singh to the judicial  lock-up  on the 13th June.

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’Nor  can any conclusion be reasonably based on  this  point from the fact that the accused persons were kept in solitary cells.   Such keeping in solitary calls is often  considered prudent  by  the  jail authorities for  the  safety  of  the confessing  accused  themselves.  It is true that  by  being kept in the solitary cells an accused is kept away from  the influence  of other under-trial prisoners who might  try  to induce them to resile them from the confession, but it is no ground for thinking that when a particular accused had  been kept  is a so solitary cell the confession made by  him  was not voluntary. We  are  satisfied that the confessions of all  these  three accused  were voluntary and rightly admitted into  evidence. Each of the accused however retracted the confession made by him.   Courts ordinarily consider it unsafe to  convict  any accused  person  on the basis of  his  retracted  confession except where the truth of such confession is established  by corroboration   in   material  particular   by   independent evidence., what is sufficient corroboration for this purpose has to be decided in 898 each  case  on  its own facts and  circumstances.   It  may, however,  be generally stated that where the prosecution  by the production of reliable evidence which is independent  of the  confession and which is also not tainted evidence  like the  evidence  of  an accomplice or the evidence  of  a  co- accused,  establishes  the  truth of certain  parts  of  the account  given  in  the confession and these  parts  are  so integrally  connected  with  other parts  of  the  accused’s confess.  ion, that a prudent judge of facts would think  it reasonable  to believe, in view of the established truth  of these  parts,  that  what  the accused  has  stated  in  the confession as regards his own participation in the crime  is also true, that is sufficient corroboration.  More than this is not needed, less than this is ordinarily insufficient. Applying this test to the three retracted confessions before us,  we are satisfied that the High Court was right  in  its conclusion  that each of these confessions has been so  well corroborated-   by   independent   evidence   in    material particulars that what the accused has said in the confession as  regards  his  own participation in the  crime  has  been proved to be true. Turning first to Nand Kumar’s confession, we find that after describing  how with the offer four accused persons he  went to Mangal Bharti with a gun which belonged to one Fakhruddin and  took part in the picnic with the 8 boys, Munna and  his companions there, goes on to say about the conspiracy to rob these boys of their valuables and then actually robbing them of these valuables.  He further states in the confession how they  further  conspired  to take all the  boys  "under  the pretext  of  sight seeing walk (Sair ka Bahana)  and  saying them to reach the city en-route Gundarai and Barakhambha and to  return  their articles there and to  murder  them  after taking them to some lonely place"  899 took the boys to Gundarai and there how one by one all the 8 boys  were killed by himself Kalua and Lakhan stabbing  them with the knife which Murari had brought.  He further  stated that after the boys had been murdered the booty was  distri- buted among themselves and he took in his share Munnas  Agfa camera  and a wrist watch belonging to Munna.  Not only  has the  prosecution  established by independent  evidence  that Nand Kumar with the other accused went to Mangal Bharti  and met  the 8 boys there and remained with them for  some  time taking part in the picnic, but it has further been proved by

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reliable  and independent evidence that Munna’s Agfa  camera and the wrist watch belonging to him which he had taken with him  that  day  to Mangal Bharti were  recovered  from  Nand Kumar’s house and that it was actually he who produced these himself  from  behind the floor carpet on the  Tand  of  his house  and that he also produced some clothes  lying  behind the  floor carpet, viz , a white banian and a langot  and  a white  shirt  smeared  with blood.   There  is  satisfactory evidence that the blood on these articles was human blood. It  is necessary to mention also that the fact that hi)  had knowledge of where the dead bodies were, was discovered by a statement  made  by him before the police,  which  has  been rightly  admitted into evidence under s. 27 of the  Evidence Act  and on the morning of June 6, 1960 it was he  who  took the  police party to the place where the bodies  were.   The knife, Ex. 18, was also pointed out by him from under a bush near  one of the dead bodies after he had previously  stated that he had left the knife at the place of occurrence. These   facts   and   circumstances   provide   overwhelming corroboration of Nand Kumar’s confession that he was one  of the  three persons who inflicted the injuries on the 8  boys which caused their deaths.  He has therefore, been 900 rightly convicted under s.302 of the Indian Penal Code. Kalua  also  confessed  having been one  of  the  three  who inflicted knife injuries on some of the boys and having held some of the other boys while his companions, Nand Kumar  and Lakhan inflicted the injuries.  Besides describing the visit to  the  Mangal Bharti and meeting the eight boys  there  he also  spoke about robbing the boys of their  belongings  and thereafter  about  the  conspiracy to kill  the  boys  after taking  them  to  Gundarai.   He  went  on  to  say  in  the confession how the boys were taken to Gundarai and  murdered there.   He  further stated about the  distribution  of  the booty  and  said that be got in his share  the  wrist  watch belonging  to Laxmi and the ring on which the name  of  S.K. Gupta  was written.  Kalua’s presence at the  Mangal  Bharti and  meeting  the  eight  boys there  have  been  proved  by independent  evidence.   It  has also  been  established  by reliable independent evidence that the wrist watch of  Laxmi and also his ring, which originally belonged to his  brother Sri  Kishan Gupta and so bore the inscription S.  K.  Gupta, were  recovered  from Kalua’s house and that  it  was  Kalua himself  who produced these from inside a box on a  Tand  in his house and further that Kalua himself produced a  trouser and  a shirt from behind another box lying behind  the  same Tand  both of which articles had blood marks.  It  has  been established  satisfactorily that the blood was human  blood. These    facts   and   circumstances   provide    sufficient corroboration  of  Kalua’s confession.  He  has,  therefore, been rightly convicted under s.302 of the Indian Penal Code. Murari also spoke in his confession of bow he went to Mangal Bharti  and met the eight boys; about the conspiracy to  rob the  boys  of their belongings and how  they  were  actually robbed  and thereafter of the conspiracy of taking the  boys to Gundarai  and  killing  them there.  He also  spoke  in  his confession  of  bow after the boys were  taken  to  Gundarai forest  the boys were called one by one and killed while  he and  Jagdish  remained guard over the boys  when  they  were waiting  for their turn to be called.  He has  mentioned  in his  confession about his taking his own knife with him  and has  also stated that this knife was used in committing  the murders’  Speaking  about the distribution of the  booty  he said that he got in his share four buttons, one of which was

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completely of gold  while the other three were gold  topped. Independent evidence has established in addition to Murari’s presence  at  Mangal Bharti and his meeting with  the  eight boys  there, the recovery of four such buttons and Rs.  48/- in  currency  notes  and  that it  was  Murari  himself  who produced these buttons and the notes from inside a box in  a room  after he himself made a statement, which  was  rightly admitted under s. 27 of the Evidence Act, about having  kept these  things  in his house.  The knife  (Ex-18’  which  was found  near one of the dead bodies was also  indentified  by witness  Ram Singh (P.W. 14) as the knife which he had  seen Murari  carrying  before  the  occurrence.   It  is  not  an ordinary knife.  It is a long knife of which the blade is  6 inches  long and the handle 7 inches, with a special  button arrangement on pressing which it opens and closes. These  facts  and circumstances established  by  independent evidence  provide sufficient corroboration of  Murari’s  own confession  that  in furtherance of a  common  intention  of himself and his companions to kill these eight boys he  kept guard  over the boys when one by one they were being  called away  and killed by his companions.  Nand Kumar,  Kalua  and Lakhan.   He  has, therefore, been rightly  convicted  under s.302 of the Indian Penal Code, 902 The  fourth  appellant,  Lakhan,  did  not  confess   having participated  in  any of the crimes.  To  prove  the  charge under  s.302  of  the  Indian Penal  Code  against  him  the prosecution  relied  on a number of circumstances.  (1)  His presence  with  Nand Kumar and others at Mangal  Bharti  and meeting the eight boys there; (2) the recovery from his room of part of the booty taken from the boys, viz., a gold  ring bearing the inscription R. P. Gupta, and a wrist watch;  (3) the  recovery of a blood-stained banian and  underwear  from his room and (4) the fact that these were produced by Lakhan himself  after  he had made a statement that he  kept  these things in his house.  Along with this the prosecution  wants the .court to take into consideration the statement made  in the  retracted confessions of Nand Kumar, Kalua  and  Murari that  Lakhan  took actual part in the killing of  the  eight boys.   The circumstances mentioned above have clearly  been established by legal evidence and they themselves are almost sufficient,  without anything more, to justify a  conclusion that  Lakhan took part in the killing of the eight  boys  in furtherance of the common intention of himself and other  to cause. their deaths.  It is proper and quite permissible  to take  into  consideration,  then,  the  statements  made  as regards  the part taken by him in the retracted  confessions of  Nand Kumar, Kalua and Murari.  These  statements  supply whatever  assurance  was needed to convince the  court  that Lakhan  took  part  in  the killing of  the  eight  boys  in furtherance  of the common intention of himself and  others. His   conviction  under’  s.302,  Indian  Penal  Code   was, therefore, fully-justified. Some argument was addressed to us on the question of motive. It  has been urged that while according to  the  confessions Nand Kumar and other decided to kill these boys so that they might  not speak about the crimes already committed  by  the accused, viz., dacoity and sedomy, the learned 903 judges  of  the High Court seemed to think  that  Munna  was killed by Nand Kumar as an act of revenge for the insult  he had offered to Nand Kumar’s sister and the other seven  boys were  killed so that they might not speak about this  murder of  Munna.  The evidence in the present case is so clear  to show  that  these four persons committed the murder  of  the

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eight  boys that we think it unnecessary to speculate  about the  motive which induced them to murder the eight boys  who had  done no harm.  Whether it was sadistic pleasure or  the fear  of  discovery of robbory, or anything else,  the  fact remains proved by overwhelming evidence that these four  did actually commit the murder of the eight innocent boys. It is hardly necessary to say anything about the  conviction of  these persons of an offence under s. 395 of  the  Indian Penal  Code.   It  is sufficient to mention  only  that  the evidence  discussed above in connection with the  charge  of murder  provides sufficient basis for the convictions  under a. 395 of the Indian Penal Code. The  sentences  of  death passed on Nand  Kumar,  Kalua  and Lakhan are the only possible sentences.  The High Court  has thought fit to treat Murari more leniently and sentenced him only to imprisonment for life.  We cannot interfer with that sentence,  even though it appears to us that  this  leniency was uncalled for. The appeal is dismissed. Appeal dismissed. 904