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PETITIONER: RAM PRAKASH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 02/09/1958

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SINHA, BHUVNESHWAR P. WANCHOO, K.N.

CITATION:  1959 AIR    1            1959 SCR 1210  CITATOR INFO :  E          1964 SC1184  (3,7,14)  E          1968 SC 832  (9)  RF         1988 SC1883  (120)

ACT: Criminal Law--Evidence--Retracted confession of co-accused- Evidentiary   value--Necessity   of    corroboration--Indian Evidence Act, 1872 (1 of 1872), s. 30.

HEADNOTE: The  appellant  was tried along with P for  the  offence  of murder.   The  prosecution case was that the  appellant,  in conspiracy with P who was employed as a servant in the house of the deceased, took advantage of the deceased being  alone in  the house with her child, went upstairs and  killed  her and  stole her ornaments, while P remained  downstairs  with the  child.  The evidence upon which the prosecution  relied for  conviction  consisted  of  the  confession  of  P,  the statement of the appellant which led to the recovery of  the ornaments  belonging to the deceased from the possession  of the  mistress  of the appellant, the recovery  of  a  blood- stained dagger from his belongings at the police station and his conduct after the murder.  The confession of P was later retracted by him in the Court of ’Session.  It was contended for the appellant that a retracted confession of an  accused cannot be used against his co-accused Held,  that  a  voluntary and true  confession  made  by  an accused though it was subsequently retracted by him, can  be taken  into consideration against a co-accused by virtue  Of s.  30  of  the  Indian Evidence Act, but  as  a  matter  of prudence  and practice the court should not act upon  it  to sustain  a  conviction of the co-accused  without  full  and strong corroboration in material particulars both as to  the crime and as to his connection with that crime. The amount of credibility to be attached to a retracted con- fession   would  depend  upon  the  circumstances  of   each particular case. Held, further, that on the evidence in the case the  confes- sion   of  P  was  voluntary  and  true  and  was   strongly corroborated  in  material particulars both  concerning  the general  story told in the confession concerning  the  crime

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and the appellant’s connection with crime.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 77 of 1958. Appeal  by special leave from the judgment and  order  dated February  26,  1958, of the Punjab High  Court  in  Criminal Appeal No. 860 of 1957, arising out 155 1220 of  the judgment and order dated December 23, 1957,  of  the Additional  Sessions Judge at Ambala in Sessions No.  20  of 1957 and Trial No. 32 of 1957. Harnam Singh and Sadhu Singh, for the appellant. Har Parshad and T. M. Sen, for the respondent. 1958.  September 2. The Judgment of the Court was  delivered by IMAM J.-The appellant and one Prem were tried for the murder of Nirmala Devi, wife of Banwari Lal, a Practising lawyer at Rupar.  The appellant was sentenced to death while Prem  was sentenced to imprisonment for life.  The appellant and  Prem appealed  against their conviction and sentence to the  High Court  of  Punjab.  Their appeals were dismissed  and  their conviction  and  sentence were affirmed by the  High  Court. The  appellant  obtained from this Court  special  leave  to appeal  and  in  the present appeal the  only  question  for consideration is whether the appellant was rightly convicted and  sentenced for the murder of Nirmala Devi.  The case  of Prem is not before us. At Rupar, Banwari Lal practised as a lawyer.  His wife,  the deceased Nirmala Devi lived with him there with their child, eight  months  old.  With them also  lived  --Banwari  Lal’s sister Vina, a girl of about 16 to 17 years of age.  Banwari Lal had employed Prem as a servant about four months  before the murder of Nirmala Devi on February 12, 1957.  This  Prem was a youngster of about fourteen years of age at that time. According  to the prosecution, lie was an associate  of  the appellant who was posted at Rupar in the capacity of a foot- constable  in  the  police force.  The  appellant  and  Prem became friendly and it is said that the appellant had an eye on the ornaments of the deceased Nirmala Devi, which she was in the habit of wearing when she went out.  The deceased was a  young person in her twenties and of good character.   She used  to  be left alone in the house with  her  child,  when Banwari  Lal went to court and Vina went to  school.   Prem, however, used to remain at the house.  It is the case of the prosecution that the appellant in 1221 conspiracy  with Prem took advantage of the  deceased  being alone  in  the house, when the appellant went  upstairs  and killed  Nirmala  Devi and stole her  ornaments,  while  Prem remained down-stairs with her child.  Vina had returned from school  round  about, 12-30 in the afternoon as it  was  the recess  time.  At that time Nirmala Devi was in the  drawing room feeding her child.  Prem was also at the house at  that time.   Vina again returned to the house at about 3-45  p.m. She enquired from Prem as to where Nirmala Devi was and  was told  by  him that he did not know as he  himself  had  been absent  from the house.  Vina, thereafter, went upstairs  to the kitchen to take her food.  Banwari Lal had returned from court  at about 3-15 p.m., earlier than usual, as he had  to attend an election meeting at the Municipal Office.  He  was accompanied by a pleader Sudarshan Kumar Jain who was  going

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to  Chandigarh.  He had intended to give him a cup  of  tea, but  finding the door leading through the staircase  to  the residential  portion looked and thinking that his  wife  was not at home, lie and his friend left for the Municipal Hall. Banwari  Lal  returned to his house at about  4-45  p.m.  He enquired from Prem as to where his wife was and was informed by him that she had gone out.  He went upstairs and saw  his sister  Vina eating her food.  On opening the drawing  room, however, Banwari Lal was stunned to find his wife lying dead on  the  floor  in  a pool of  blood.  lie  noticed  several injuries on her and that some of her jewellery was  missing. He  proceeded to the police station almost opposite  to  his house and lodged a First Information Report about the murder at 5 p.m. There  can  be no manner of doubt that an  audacious  and  a brutal murder of a young and a defenceless person had  taken place  with the intention of robbing her of  her  ornaments. The  fact of murder has been apply proved and has  not  been seriously questioned.  The only matter for consideration  is Whether  the evidence established that the deceased  Nirmala Devi  was murdered by the appellant with the  assistance  of Prem. The evidence upon which the prosecution relied for 1222 conviction  is the confession of Prem, the statement of  the appellant  which  led  to  the  recovery  of  the  ornaments belonging  to  Nirmala Devi from the possession of  one  Raj Rani  a mistress of the appellant, the recovery of a  blood- stained dagger from his belongings at the police station and his conduct after the murder. So  far  as  the confession of Prem was  concerned,  it  was retracted by him in the Court of Session.  Prem’s  statement under  s. 342 to the Committing Magistrate,  however,  which had  been brought on to the record under s. 287 of the  Code of  Criminal Procedure, clearly stated that  the  confession was   a  voluntary  one.   Indeed,  his  statement  to   the Committing Magistrate showed that the crime was committed by the  appellant  and  that  Prem  had  assisted  him  in  the commission of that crime.  Although in the Court of  Session Prem had retracted his confession, his memorandum of  appeal in  the  High Court would indirectly suggest that  the  con- fession  made  by  him was voluntary and  true.   Before  we consider  whether the confession was a voluntary and a  true one,  it is necessary to deal with the submission on  behalf of the appellant that the confession, having been  retracted by Prem, is irrelevant so far as the appellant is  concerned as  the  retracted confession of an accused cannot  be  used against his co-accused. Although  on behalf of the appellant it had not been  argued that  the retracted confession of Prem was inadmissible,  we regard  the submission that it was irrelevant and cannot  be used against the appellant as tantamount to saying the  same thing.  Section 30 of the Indian Evidence Act states: " When more persons than one are being tried jointly for the same  offence, and a confession made by one of such  persons affecting himself and some other of such persons is  proved, the  Court  may take into consideration such  confession  as against such other person as well as against the person  who makes such confession." It  will be clear from the terms of this section that  where more  persons than one are being tried jointly for the  same offence,  a  confession made by any one  of  them  affecting himself and any one of his co-accused 1223 can  be  taken  into consideration by  the  court  not  only

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against the maker of the confession but also against his co- accused.   The  Evidence Act nowhere provides  that  if  the confession   is   retracted,  it  cannot   be   taken   into consideration  against  the  co-accused  or  the  confessing accused.  Accordingly, the provisions of the Evidence Act do not  prevent  the  Court from taking  into  consideration  a retracted confession against the confessing accused and  his co-accused.   Not a single decision of any of the courts  in India  was  placed  before  us  to  show  that  a  retracted confession  was  not admissible in evidence or that  it  was irrelevant  as against a co-accused.  An examination of  the reported  decisions  of  the various High  Courts  in  India indicates that the preponderance of opinion is in favour  of the  view that although it may be taken  into  consideration against a co-accused by virtue of the provisions of s. 30 of the  Indian Evidence Act, its value was extremely  weak  and there  could  be  no conviction with  out  the  fullest  and strongest   corroboration  on  material  particulars.    The corroboration  in the full sense implies  corroboration  not only  as  to  the factum of the crime but  also  as  to  the connection  of  the  (co-accused with that  crime.   In  our opinion, there appears to be considerable justification  for this  view.  The amount of credibility to be attached  to  a retracted   confession,  however,  would  depend  upon   the circumstances of each particular case.  Although a retracted confession  is admissible against a co-accused by virtue  of s.  30 of the Indian Evidence Act, as a matter  of  prudence and  practice  a court would not ordinarily act upon  it  to convict  a co-accused without corroboration.  On this  basis it  is now to be seen whether the confession  was  voluntary and true.  It will then be necessary to consider whether the confession  has  received full and strong  corroboration  in material   particulars  both  as  to  the  crime   and   the appellant’s connection with that crime. It  was strongly urged that the police had adopted a  device to get the accused Prem into their custody again on a charge of  theft  as lie had already been placed  in  the  judicial lock-up after his arrest in 1224 connection with the murder of the deceased Nirmala Devi.  He was arrested on June 25, 1957, in connection with a burglary which  had taken place on December 5, 1956, and he had  been since  then  in  police  custody  in  connection  with   the investigation of that case until July 10, 1957, the last day of remand to police custody.  On July 10, 1957, Prem made  a confession  before  a Magistrate concerning  the  murder  of Nirmala  Devi.  Prem was discharged in the burglary case  on July  20, 1957.  Having adopted this device of getting  Prem into  police  custody  the  police were  in  a  position  to exercise  great influence upon Prem, a, young’ lad of  about 14  years of age.  When lie made his confession on July  10, 1957, he must have been still labouring under the  influence of  the  police  and sufficient time was not  given  by  the Magistrate  to remove that influence.  The Magistrate  ought not  to have recorded his confession on July 10,  1957.   He ought  to have remanded Prem to jail custody for a few  days in  order that the police influence may be removed from  his mind.  We have examined the record and find no justification for the suggestion made that the police adopted a device  to got the accused Prem in to their custody again by  arresting him  in the burglary case of December 5, 1956.  It  is  true that the accused Prem was discharged from the burglary  case on July 20, 1957, but there is nothing on the present record to suggest that his arrest in the burglary case of  December 5,  1956,  was without justification and that  it  was  done

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purely  for  the  purpose of getting him  back  into  police custody.   It is true that Prem had been in  police  custody from  June  25, 1957 to July 10, 1957,  and  the  Magistrate might  as well have refrained from recording his  confession on July 10, 1957.  It is clear, however, from the record  of the Magistrate that at 1 p.m. the accused Prem was  produced before   him  by  the  police  for  the  recording  of   his confession.   The  Magistrate told him that lie  was  not  a police  officer but a Magistrate and that he was at  liberty to think over the matter whether he would volunteer to  make a  confession  and  gave him time, until  2  p.m.  for  this purpose.  He further explained to Prem that he should 1225 consider  himself quite free and not make a statement  under the  influence  or  temptation of anybody.  At  2  p.m.  the Magistrate took various precautions.  All the doors and  the windows of his room were closed.  Everyone, except Prem, was turned out.  The police were asked to stand in the  verandah from  where  they could not see Prem.  Prem was  again  told that he must regard himself as quite free and should not  be under  the  influence of the police or  anybody  else.   The Magistrate  then put a series of questions which  have  been recorded in the form of questions and answers.  By  question 7, the Magistrate enquired how long Prem had been in  police custody  and  from where he bad been brought  that  day,  to which,  the answer was that some 5 months back he  had  been arrested  since then sometimes he had been sent to jail  and sometimes  had been kept in police custody. By  question  8, the  Magistrate asked whether he was kept awake during  that period or had been given greased diet (Mnaggan giza,  etc.), which we understand to mean whether he had been given greasy food which would induce a sleepy condition in persons eating such food, to which question he replied that he had  enjoyed regular  sleep  and  had been taking common  diet.   At  the beginning,  of course, the police had kept him  awake.   The Magistrate  also  enquired whether the police or  any  other person had made any promise or had given any undertaking  to help  Prem  or  had  given all  temptation  to  him  or  had influenced  or frightened him. If so, he should  state  this fully from his heart, to which Prem replied that he had  not been given any promise, temptation or inducement, nor was he subjected to fear or exhortation.  He had been merely  asked to make a true statement.  Prem then said that he would make his statement of his own free will and the Magistrate  could believe him or not.  The Magistrate also asked Prem  whether any one had beaten him or if there was any mark of injury on his  body,  to which, the answer was ’no’.   The  Magistrate then  examined the body of Prem and found that there was  no mark of injury on his person.  The Magistrate then asked  as to why he was making a confession, to which, Prem answered 1226 that he was doing so of his own free will and to lessen  the burden  of his heart.  The nature of the questions  put  and the  manner  in which the Magistrate examined  Prem  clearly showed  that  the  Magistrate took every  precaution  to  be satisfied  whether  Prem  was  going  to  make  a  voluntary statement.   We  are  satisfied that during  the  period  of police  custody between the 25th of June and July 10,  1957, Prem  was  not induced to make a confession.   He  made  the confession  voluntarily.  That the confession was  voluntary finds  support  from  Prem’s  statement  to  the  Committing Magistrate under s. 342 of the Code of’ Criminal  Procedure. In  that  statement Prem told the Magistrate  in  answer  to various questions the following story: He had been  employed as  a  domestic servant by the lawyer Banwari Lal.   He  had

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developed during this period friendship with the  appellant. The  appellant  had told him that he would  commit  rape  on Nirmala Devi and would rob her of her ornaments and, if  she resisted, he would murder her.  He informed the appellant on February 11, 1957, that Nirmala -Devi would be alone in  her house  at  about  mid -day on February  12,  1957.   He  had received on February 11, 1957, a dagger wrapped in a  pajama from  the appellant and bad kept it in the store behind  the office of Banwari Lal On February 12, 1957, he informed  the appellant that Nirmala Devi was alone in the house.  He  had handed  over the dagger and the pajama to the  appellant  on February  12,  after taking it out of the store  room.   The appellant  had  sought his assistance in the  commission  of rape,  robbery  and murder of Nirmala Devi and he  had  been promised a half share in the booty.  To the question whether he  had  kept watch over the house of Banwari Lal  when  the appellant entered it for committing rape, robbery and murder of  Nirmala  Devi, Prem answered that he was made  to  stand near the stair-case by the appellant and that he kept  watch while  the  appellant  committed  the  crime.   He   finally admitted  to the Committing Magistrate that  the  confession which  had been recorded on July 10, 1957, was  a  voluntary confession.  When asked whether he had to say anything else, Prem told the Committing 1227 Magistrate that he had made a true statement before him  and also  in  the Court of the Magistrate who had  recorded  his confession.   Shorn  of details the substance of  the  story told by Prem to the Committing Magistrate is in keeping with the  substance of his confession recorded on July 10,  1957. It is to be further remembered that the statement of Prem to the  Committing Magistrate was brought on to the  record  of the  Court of Session under s. 287 of the Code  of  Criminal Procedure which directs that the statement should be read as evidence.   Although  Prem retracted the confession  in  the Court of Session, his memorandum of appeal filed in the High Court  showed that he had acted under the influence  of  the appellant and had been allured by him to achieve his object. He,  however, pleaded that be should not have received  such severe  punishment.  On the contrary, lie should  have  been acquitted.   These circumstances clearly indicate  that  the confession  recorded  on  July 10,  1957,  was  a  voluntary confession.   It  remains now to be seen whether  it  was  a truthful confession. Prem  asserted  in his confession that he  had  acquaintance with  the appellant previous to the appellant’s  posting  to Rupar  and their association continued at Rupar.   There  is nothing inherently improbable in this story of Prem.  It  is true  that there is not much evidence to  corroborate  Prem. that  lie  and  the appellant were acquainted  and  used  to associate.  Banwari Lal had seen them talking to each  other once  or  twice before the murder.  The  police  station  at which  the appellant was posted was almost opposite  to  the house  of Banwari Lal where Prem was employed as  a  servant and  there was every probability of the appellant  and  Prem meeting.   It  is significant that on the day of  murder  of Nirmala  Devi,  in the afternoon, Prem was  present  in  the compound   of  the  police  station  with  a  child   in   a perambulator.   Foot-constable  Gurbachan  Singh,  P.W.   4, enquired  from Prem as to why he had gone inside the  police station.  On this the appellant asked Gurbachan Singh not to remonstrate with Prem as he was a mere, boy.  Gurbachan 156 1228 Singh  had  stated that previously he had  never  seen  Prem

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going  inside the police station with a  perambulater.   The intervention of the appellant suggests that he knew Prem and was friendly towards him.  Prem’s story that he was employed as a servant by Banwari Lal is corroborated by the  evidence of  Banwari  Lal  himself, his sister  Vina  and  his  clerk Naranjan  Das.   In the nature of things there could  be  no corroboration of Prem’s story about the appellant’s proposal to  rape and rob Nirmala Devi and, if necessary,  to  murder her.  According to Prem’s confession a day before the murder he  had  been given a dagger by the appellant along  with  a _pajama and that Prem took the pajama and the dagger to  the upper  storey of Banwari Lal’s house having concealed it  in the  kothri  of firewood which was near the office  room  of Banwari Lal.  This part of his story receives  corroboration from  the evidence of Banwari Lal that after the  murder  he had  found a blood-stained pajama, Exbt.  P. 14, banging  on the  door  of  the store room which is at the  back  of  the residential portion of the house.  Banwari Lal is  supported by Nand Lal, P.W. 34, Motor Mobile Patrol Sub-Inspector, who recorded the First Information of Banwari Lal.  According to him,  he found the pajama hanging on one of the shutters  of an almirah fixed in the wall in the fuel room situate at the back  of the room where Nirmala Devi was found  lying  dead. It  was bloodstained.  Banwari Lal had clearly  stated  that this  pajama did not belong to him or any one in his  house. The  existence  of the pajama in Banwari Lal’s  house  lends corroboration  to the story of Prem that he had  been  given this  pajama and that he had concealed it in the  kothri  of fire-wood near the office of Banwari Lal.  The statement  of Prem  that  he  had asked Raj sabziwala to  bring  down  the perambulator  of  the  child  and  that  he  did  so,  finds corroboration  from the evidence of Gurbachan Singh that  in the  afternoon he found Prem accused in the  police  station with a child in a perambulator. The presence of the accused Prem at Banwari Lal’s house near about the time of the murder appears to 1229 be clear.   When Vina had left for her  school at 9-45 a.m., Prem was in  the house.  Vina returned to the house    from her school at about 12-30 noon.  At that time     Prem   was present  in the verandah in front of the office.   When  she finally  returned  from  the  school  at  about  3-45  p.m., apparently  Prem  was not in the house but  arrived  shortly thereafter.   The murder was committed at any  time  between 12-30 p.m. and 2-15 p.m. if the appellant was the  murderer, because Gurbachan Singh’s evidence showed that the appellant was at the thana at 2-15 p.m. Apparently, the appellant went out with Gurbachan Singh and returned to the thana with  him in time for Gurbachan Singh to be on duty from 3 p.m. If the appellant was the murderer he must have committed the murder before  2-15 p.m. Nirmala Devi was alive at 12-30 p.m.  when Vina saw her feeding her child.  Assuming that Vina did  not stay  long, as she had come to get some money to purchase  a copy-book,  it  would  not be unreasonable  to  assume  that Nirmala  Devi  was  alive  up to 12-40  or  12-45  p.m.  The interval  of  time  between that and  2-15  p.m.,  when  the appellant  was  seen at the police station, is about  1  1/2 hours.  It would be probable that during this time Prem  was present  in the house and when he says that lie was  present there  there is no inherent improbability in his  statement. At  3-45 p.m., when Vina arrived, no doubt Prem was  not  in the house, but he came shortly thereafter and Vina took from him the child of Nirmala Devi.  This clearly shows that Prem had  gone  out of the house with the child of  Nirmala  Devi which  one would not normally expect him to do at that  time

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of  the  day,  if  Nirmala Devi had left  the  house  to  do shopping  or  to visit anyone.  If Nirmala Devi was  in  the house and alive it was most unlikely that Prem accused would have  taken  her child out of the house.   Prem’s  statement that he was amusing the child while the appellant was  doing his nefarious work appears to be true, because the child was with  him and he had been seen at the police station with  a child in a perambulator.  If the circumstances tend to  show that  in  all probability Prem was in the house  from  12-30 p.m. to 2-15 p.m. then his 1230 story  that he was present at the house when  the  appellant came  there  appears  to be a  truthful  statement.   It  is significant that when Vina arrived at the house at 3-45 p.m. she  found  the door of the stair-case  locked.   When  Prem arrived she saw the key in his hand, although Prem had  said it  was lying on the floor.  He opened the lock of the  door of  the stair-case with that key and Vinia went upstairs  to the second floor where she went to the kitchen and took  her food.   When Banwari Lal arrived at his house at about  3-15 p.m.  he  found  his office room locked  from  outside.   He wanted to go to the residential portion for taking tea,  but found  the  door  of the  stair-case  locked  from  outside. Finding   the  door  of  the  stair-case  leading   to   the residential  portion of his house locked, he came  down  and went  away  in connection with the election  work.   On  his return  he enquired from Prem about the whereabouts  of  his wife  and Prem told him that she had gone out. He wished  to go upstairs to the residential portion of the house and Prem at  his request opened the lock of the stair-case,  the  key being  with  him.   According  to  Banwari  Lal,  the  usual practice  was to lock the door of the office  which  adjoins the  stair-case and to bolt the other door from inside,  but on  the day of the murder the door adjoining the  stair-case was  looked  while the other door was lying  open.   Banwari Lal’s clerk, Naranjan Das, came to the house at 4-15 or 4-30 p.m.  He went up to the verandah in front of the office  and found both the doors of the office locked from outside.   He asked  Prem to open the office, but Prem told him  that  the key  of  one  of  the locks which  was  fixed  on  the  door adjoining the stair-case, had been lost.  He gave the key of the other lock and then Prem took out a key from his  pocket and  opened the lock fixed on the other door of the  office. There is no reason to distrust all this evidence which would indicate  that  after Vina had left the house on  her  first visit  at  about 12-30 p.m. the two doors were  locked  from outside which was something unusual and that the keys of the looks  of these doors were with Prem.  He had given  evasive answers about the keys to Vinia and Naranjan Das 1231 while  the key was in his pocket.  These circumstances  also indicate  the truthfulness of Prem’s statement that  he  was present in the house during the period in which Nirmala Devi was  murdered.   His statement in the  confession  that  the appellant had locked the door and had thrown the key in tile office  verandah  and that while he sat  there,  the  child, while  playing,  picked up the key and that he said  to  the girl  (presumably  Vina) there was the key and then  he  un- locked  the  door  appears to be true.   Reference  in  some detail  to the various statements of Prem in the  confession and  the  circumstances proved by the  evidence  of  various witnesses  became  necessary in order to  ascertain  whether Prem had made a truthful statement about his presence at the house  during the period in which Nirmala Devi was  murdered and  also  as  to the part he had played  in  assisting  the

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appellant  to commit the murder.  While it is true  that  in the  confession  Prem  does not  attribute  to  himself  any participation  in  the murder itself, it is not to  be  for- gotten that the murder of Nirmala Devi could not have  taken place without his aid.  Whoever entered the house of Banwari Lal in broad day light could not have gone upstairs  without the  knowledge  and cooperation of Prem.  According  to  his statement  lie knew what was the intention of the  appellant and  to assist him in the accomplishment of his  purpose  he had  concealed  in  his master’s house the  pajama  and  the dagger  given  to  him  by the appellant.   If  he  did  not actually  participate  in  the murder he  would  be  equally guilty  of the murder if that murder was committed with  his aid  and  his  connivance.   The  confession,  as  a  whole, concerning  the murder of the deceased appears to us  to  be true  and  we  have  no hesitation,  after  a  very  careful consideration  of  all the circumstances  appearing  in  the case,  in saying so.  In our opinion, Prem’s confession  was not only voluntary and true but it had been corroborated  in material particulars regarding the general story told by him in his confession.  The other question which now remains for consideration  is whether the confession  received  material corroboration  connecting the appellant with the  murder  of Nirmala Devi. 1232 Amongst  the appellant’s possessions a dagger was  recovered which  appeared  to be blood-stained but owing to  the  long delay  in  sending it to the Chemical  Examiner  its  origin could  not  be  determined.  From the  medical  evidence  it appears that the dagger in question could have inflicted the kind  of  injuries  suffered  by  Nirmala  Devi.   The  most important  corroboration,  however, is the recovery  of  the ornaments  of the deceased.  These ornaments,  according  to Banwari  Lal, she had been wearing on the day of the  murder when  he  left  for court.  On some statement  made  by  the appellant   his  mistress  Raj  Rani  was  visited  by   the authorities  and  in the presence of  respectable  witnesses some  ornaments were recovered and they were  identified  as the  ornaments  of the deceased.  The evidence of  Raj  Rani also  showed that these ornaments were given to her  by  the appellant.   She apparently had no reason to depose  against the appellant, because she had said in her evidence that she wished  to  meet  the appellant before giving  clue  to  the ornaments  and that she wished to give the ornaments to  the police in his presence.  The defence case was not that these ornaments  did not belong to the deceased but that,  on  the contrary,  they were hers but had been produced  by  Banwari Lal during the police investigation and that it was  falsely alleged  that  they had been recovered from Raj  Rani.   The evidence  of  Charan  Dass,  P.  W.  24,  President  of  the Municipal Committee of Rupar, however, clearly shows that in his presence the appellant made a statement to the police to the  effect  that one gold kara and seven gold  bangles  had been  given by him to Raj Rani.  This statement was made  on August  3, 1957.  His evidence also shows that on August  9, 1957, he accompanied the police party from Rupar to Jangpura and  that  Raj Rani took them to her  sister’s  house.   She brought  out a trunk from inside the room.  She  opened  the lock  of  the  trunk and produced from it a  tin  box  which contained a gold kara and seven gold bangles.  The  evidence of GoriShanker, a Municipal Commissioner of Rupar is to  the same effect and corroborated Charan Dass.  The courts  below believed these two witnesses.  We have examined 1233 their  evidence with some care in view of the submission  on

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behalf of the appellant that they should not be relied upon. There is nothing in their evidence to show that they were in any way hostile to the appellant or had any motive to depose against  him.   The  courts  below  having  believed   these witnesses, we would not ordinarily go behind their view on a question  of  fact.   Having regard, however,  to  the  con- sequences which arise as a result of the acceptance of their evidence  in  this particular case, we have  examined  their evidence  in the light of the submission made on  behalf  of the  appellant.  It was suggested that at the earlier  stage the police investigation was not properly conducted and  the public  were  dissatisfied.   A  deputation  of  influential persons  met the Chief Minister as a result of which a  more active  and  thorough investigation took place.  It  may  be that  influential  persons of Rupar  interviewed  the  Chief Minister,  being dissatisfied with the manner in  which  the investigation was taking place.  There is, however,  nothing to show that Charan Dass or Gori Shanker were amongst  those who  had  interviewed the Chief Minister or  that  they  had taken  part in any agitation against the  police  concerning the manner of the investigation.  It is difficult to believe that  two responsible persons such as the President  of  the Municipal  Committee and one of its members would go out  of their  way to depose to certain events which  would  provide very  strong evidence against the appellant and lead to  his conviction on a capital charge, unless they had really heard the statement of the appellant and witnessed the recovery as deposed to by them.  It was then suggested that, apparently, Charan  Dass had no real reason to go to the police  station on  August 3, 1957, and, therefore, his story that he  heard the  appellant make the statement which led to the  recovery of  the  ornaments  was false.  Charan  Dass,  however,  had stated  the reason for his visiting the police station.   He went  there  to complain to the police  that  people  parked their  push-carts  in  the bazar  and  thus  obstructed  the passage.  In our opinion, as the President of the  Municipal Committee of Rupar, if a nuisance was 1234 being  created  by people parking their  push-carts  in  the bazar,  it was a natural thing for him to go to  the  police station in order to get such obstruction removed and for the police  to see that the nuisance did not continue.   We  can find  nothing strange in the conduct of Charan Dass or  Gori Shanker  in  having  gone  to  the  police  station  in  the circumstances deposed to by them.  We have no hesitation  in believing the evidence of Charan Dass and Gori Shanker  that the  appellant  made a statement to the effect that  he  had given  one gold kara and seven gold bangles to Raj Rani  and that  the  same  were  recovered  from  Raj  Rani  in  their presence.   It would appear, therefore, on the  evidence  of Raj Rani and these witnesses, that not long after the murder of  Nirmala  Devi  the appellant was in  possession  of  her ornaments  and  that  he had given them to  Raj  Rani.   The ornaments  being in possession of the appellant  soon  after the murder would show that he either stole the ornaments  or was  in  possession  of them knowing  or  having  reason  to believe that they were stolen properties.  Nirmala Devi  had been  murdered  by  someone who had  stolen  her  ornaments. According to the confession of Prem it was the appellant who had gone up-stairs where Nirmala Devi was Sometime after the departure  of Vina.  He had given the appellant  the  pajama and  the dagger.  Thereafter, the appellant left  the  house leaving  the  pajama  behind.  After the  departure  of  the appellant  no  outsider  entered the house.   It  is  clear, therefore,  that in order to steal the ornaments  the  thief

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killed  Nirmala  Devi.  The circumstances  clearly  indicate that the thief was no other than the appellant.  It seems to us,  therefore, that the confession of Prem receives  strong and substantial corroboration connecting the appellant  with the crime of the murder of the deceased Nirmala Devi. The conduct of the appellant from 2-15 p.m. onwards  clearly shows  that  he was in a disturbed state of  mind  which  is consistent  with  his  having committed  the  crime,  It  is curious  that lie was uttering the word I Nirmala.   It  had been  suggested to Gurbachan Singh that the  Assistant  Sub- Inspector Rikhi Ram had a 1235 daughter with whom the appellant had illicit connection  and that  her name was Nirmala, but the witness stated  that  he had  no knowledge about it.  The appellant in his  statement under  s. 342 of the Code of Criminal Procedure  before  the Sessions Judge admitted that he was shouting out the name of Nirmala but he had a love affair with a girl named  Nirmala, daughter  of Rikhi Ram.  We are not prepared to  accept  the explanation  of the appellant as to how he was  calling  out the  name  of Nirmala so soon after the  murder  of  Nirmala Devi.  This conduct of the appellant may not by itself  have been  corroboration  of sufficient importance  to  enable  a court  to convict the appellant on the retracted  confession of Prem.  No stronger and no better corroboration,  however, of  the  confession of Prem could be had than  the  evidence which  showed that the appellant had been in  possession  of Nirmala Devi’s ornaments soon after her murder. There  were  several comments made on the  evidence  by  the learned Advocate for the appellant, but those comments  were with  reference to unimportant matters and were not  at  all relevant.   In  an  appeal  by  special  leave  it  is   not ordinarily  permissible to make submissions on questions  of fact.   The  principal  matter  with  which  we  have   been concerned in this appeal was whether the confession of  Prem had been corroborated in material particulars regarding  the general  story  told  by him  and  in  material  particulars tending  to  connect the appellant with the  murder  of  the deceased.   We  have  no  hesitation  in  saying  that   the confession  of  Prem  has been amply  corroborated  in  both respects.  Recovery of the ornaments of the deceased at  the instance  of the appellant incriminated him to  the  fullest extent  and  lent the strongest corroboration  to  the  con- fession  of  Prem from which it was apparent that  no  other person than the appellant could have murdered Nirmala Devi. The appeal is accordingly dismissed. Appeal  dismissed. 157 1236