10 April 1957
Supreme Court
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SARWAN SINGH Vs THE STATE OF PUNJAB(with connected appeal)

Case number: Appeal (crl.) 22 of 1957


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PETITIONER: SARWAN SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB(with connected appeal)

DATE OF JUDGMENT: 10/04/1957

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. JAGANNADHADAS, B. SINHA, BHUVNESHWAR P.

CITATION:  1957 AIR  637            1957 SCR  953

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

HEADNOTE: The appellants and G were convicted of the offence of murder by  the Sessions Court on the basis of the evidence  of  the approver,  which it considered reliable, and the  confession made  by the first appellant which it found to be  voluntary and  true.   The High Court held that the  evidence  of  the approver  as against G was very discrepant  and.  unreliable and  set aside his conviction but,  nevertheless,  confirmed the  conviction of the appellants.  The appellants  appealed to  the Supreme Court.  It was found (1) that the  statement originally  made  by  the approver  as  against  the  second appellant  was wholly inconsistent and  irreconcilable  with the  evidence given by him in Court and that the High  Court did not consider the question as to whether the approver was a  reliable  witness  at all, (2) that  the  Magistrate  who recorded  the  confession  did not  fully  comply  with  the procedure to be adopted to ensure that it was voluntary, (3) that the prosecution story as deposed to by the approver was inconsistent with the material statement in the  confession, and  (4)  that  the High Court while  deciding  whether  the confession was voluntary assumed that it was true.  Held,  that  the conviction of the appellants must  be  set aside.   The appreciation of an approver’s evidence has to  satisfy a  double test.  It must show that be is a reliable  witness and that his evidence receives sufficient corroboration.   The act of recording confessions under s. 164 of the  Code of Criminal Procedure is a solemn one and in discharging his duties under the said section the Magistrate must take  care to  see  that the requirements of sub-s. (3) Of S.  164  are fully satisfied.  When an accused person is produced before the Magistrate by the  investigating officer, it is of the  utmost  importance that  the  mind of the accused person should  be  completely

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freed from any possible influence of the police and he  must be sent to jail custody and given adequate time to  consider whether he should make a confession at all.  Ordinarily,  he should be given at least 24 hours to decide.  Even  if  a  confession  is  voluntary,  it  must  also  be established  that  it is true and, for that purpose,  it  is necessary to examine it 123 954 and compare it with the rest of the prosecution evidence and the probabilities of the case.

JUDGMENT: CRIMINAL  APPELLATE, JURISDICTION: Criminal Appeals Nos.  22 and 23 of 1957. Appeals  by special leave from the judgment and order  dated August  7, 1956, of the Punjab High Court at  Chandigarh  in Criminal  Appeals  Nos.  253  and 250  of  1956  and  Murder Reference  No.  38 of 1956 arising out of the  judgment  and order  dated  May  21,  1956, of  the  Court  of  Additional Sessions Judge at Ludhiana in Trial No. 17 of 1956 and  Case No. 9 of 1956.  Gyan Chand Mathur, for the appellant in Criminal Appeal No. 22 of 1957.   R. L.  Kohli, for the appellant in Criminal Appeal No.  23 of 1957.   Gopal  Singh and -T.  M. Sen, for the respondent  in  both the appeals.   1957.  April 10.  The Judgment of the Court was  delivered by J.   GAJENDRAGADKAR  J.-Harbans  Singh,  Gurdial  Singh  and Sarwan  Singh  were  charged in the  court  of  the  learned Additional Sessions Judge -at Ludhiana with having committed an  offence of murder punishable under s. 302 of the  Indian Penal Code.  The case against them was that they, along with Banta  Singh,  the approver, had  intentionally  caused  the death  of Gurdev Singh by inflicting injuries on his  person with kirpan, toki and dang on November 23, 1955, within  the limits  of the village Sohian, police station Jagraon.   The learned trial judge held that the charge framed against  all the three accused had been proved beyond a reasonable doubt. That  is  why he convicted them of the offence  charged  and sentenced each one of them to death.  On appeal to the  High Court  of  Punjab,  the order  of  conviction  and  sentence imposed against Harbans Singh and Sarwan Singh was confirmed whereas the order of conviction and sentence against Gurdial Singh  was set aside and he was ordered to be acquitted  and discharged.  Accused No. 1, Harbans 955 Singh,  and accused No. 3, Sarwan Singh, have come  to  this Court in appeal by special leave.  It  would be convenient to state the prosecution case  very briefly  at  the outset.  Gurdev Singh, the  victim  of  the assault,  was the brother of accused No. 1. It appears  that the father of the two brothers had left the Ga village  some years ago and is apparently no longer alive.  Harbans  Singh was  a  shirker  and a waster and  that  made  Gurdev  Singh impatient.   When  Gurdev  Singh tried  to  improve  Harbans Singh, Harbans Singh resented Gurdev Singh’s efforts and his irritation and annoyance had reached such a stage and extent that he began to plan his murder.  According to the story of the prosecution, Harbans Singh got in touch with his friends Sarwan Singh and Gurdial Singh and requested them to  assist

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him in his plan to get rid of his brother.  It appears  that Gurdial  Singh  himself was on inimical  terms  with  Gurdev Singh because he was angry with Gurdev Singh for having  cut jokes with his sister.  A few days before the commission  of the offence, Harbans Singh and Sarwan Singh were sitting  on a  canal bank near their village enjoying their  drink  when Banta  Singh joined them.  He was also asked to  partake  of the  liquor  and was told about the plan  to  murder  Gurdev Singh.   A few days later there was another meeting  between these three men and it was agreed that an attempt should  be made  to  procure arms for the purpose of carrying  out  the plan   Rakha was accordingly approached and as a  result  of the  negotiations he sold a country-made pistol and a  cart- ridge for Rs. 40 to Sarwan Singh.  Rakha was also  requested to join the conspiracy.  He was however unwilling to respond and  though he did not openly say ’no’ to the  proposal,  at the  material time he refused to join the conspirators.   On the  day of the offence itself, Sarwan Singh, Gurdial  Singh and Banta Singh went by a bus together and got down near the road which leads to the village Sohian.  Then they proceeded on  foot until they met Harbans Singh near the canal  minor. Harbans  Singh  then  advised his  co-conspirators  to  hide themselves  in  the  bushes.  He then fetched  a  bottle  of liquor and all the four drank from it, This 956 took them to sunset time, when Harbans Singh left the  place and  promised his friends that he would send his brother  to the place where they would lie concealed.  He also told them that  he  would give a signal as soon as his  brother  would approach  the  place of their concealment  by  clapping  his hands.    In  accordance  with   this  plan  Harbans   Singh persuaded  his  brother  to go  ahead.   Sarwan  Singh  then coughDed  and  this raised an apprehension in  the  mind  of Gurdev  Singh that people for him.  So he some may be  lying in  wait  called out to his brother Harbans Singh  and  said that  he  suspected  that  there  were  some  people  there. Harbans   Singh  assured  him  that  he  would  soon   join. Meanwhile,  according to plan, the three assailants  emerged from  their place of concealment and attacked Gurdev  Singh. Harbans  Singh also arrived on the scene and joined them  in the assault.  The prosecution case is that Harbans Singh was armed  with  a  kirpan,  Gurdial Singh  with  a  lathi,  the approver  Banta  Singh with a toki and Sarwan Singh  used  a kirpan.   The attack was undoubtedly brutal and callous  and it resulted in as many as 69 incised wounds and two contused injuries which had been caused with a blunt weapon.   Having assaulted (Gurdev Singh in this brutal manner his assailants ran away. Harbans  Singh returned to his village and raised a hue  and cry.   He complained that his brother had been carried  away by  a number of persons and he pretended that his  brother’s assailants were Darshan Singh, Jagat Singh, Gurnam Singh and Banta  Singh of the village Pona.  The villagers-,  however, found  that  Harbans Singh was not keen on joining  them  in rendering help to the victim or in pursuing his  assailants. Finally,   however,  he  was  persuaded  to  accompany   the villagers and the villagers in the company of Harbans  Singh reached  the stop where Gurdev Singh’s body was found  in  a pool  of blood. Thereafter Harbans Singh went to the  police station  and made a report of the occurrence at about  10-30 p.m.  He  alleged in his report that his  brother  had  been murdered  by  the aforesaid four persons of the  village  of Pona.  Purporting to act on this report, the police 957 reached the spot in the early hours of the next morning  and

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so the investigation commenced.  It is clear that the police had their own doubts about  the truth of the report made by Harbans Singh from the start and they suspected that it was Harbans Singh and his friends who were  concerned  with the commission of this  foul  offence. Sarwan Singh, Gurdial Singh and Banta Singh were arrested on November   25  and  Harbans  Singh  on  November  26.    The investigating  officer recovered from the person  of  Sarwan Singh  a  blood-stained shirt and chadar and  obtained  from Sarwan  Singh’s  house a pistol and an  empty  cartridge  on information given by him from the person of Gurdial Singh  a blood-stained turban was recovered and the information given by him led to the discovery of a stick or lathi.  This lathi was  blood-stained.   From  Banta Singh’s  person  a  blood- stained  chadar was recovered and the information  given  by him led to the discovery of a kirpan and a toki from a  well in  which  they  were thrown after  the  commission  of  the offence.    The  prosecution  also  alleges  that,  on   the information  given  by  Harbans  Singh,  some  blood-stained clothes  were recovered from Gurdev Kaur sister  of  Gurdial Singh.   It  appears  that, on  November  30,  Sarwan  Singh offered to make a confessional statement and the  confession was in fact recorded on the same day.  On December 2,  Banta Singh was given pardon and made an approver.  That in  brief is the prosecution case.   All  the  three  accused  deny  any  connection  with  the commission of the offence.  The learned Sessions Judge  held that Banta Singh was a reliable witness.  Since Banta  Singh is,  however,  an  approver  the  learned  Judge  considered whether   his   evidence   had   received   the    requisite corroboration  in material particulars and he held  that  it did.  The learned Judge also found that the confession  made by  Sarwan Singh was voluntary and true and in  his  opinion the evidence of Rakha and the other circumstantial  evidence with  regard to the blood-stained clothes of the  respective accused  persons  and the recovery of the  weapons  afforded sufficient  corroboration in material particulars.  That  is how he reached the conclusion that the charge of murder has 958 been proved against all the three accused.  On appeal it has been held by the learned Judges of the High Court of  Punjab that  the  evidence  given by  the  approver,  Banta  Singh, against  accused  Gurdial  Singh  was  very  discrepant  and therefore unreliable and so they found that the case against Gurdial  Singh  had   not been proved  beyond  a  reasonable doubt.   In the result Gurdial Singh was acquitted; but  the view  taken  by  the  learned  Judges  in  respect  of   the prosecution case against Harbans Singh and Sarwan Singh  was that  the  approver’s evidence supplied the  basis  for  the prosecution case against them and since it was  corroborated by  circumstantial evidence to which reference  has  already been  made and by the confession of Sarwan Singh, there  was no  difficulty  in confirming the order  of  conviction  and sentence  passed against these two accused persons.   It  is this  view  which  is  challenged  before  us  by  the   two appellants in the present appeals.   Since the present appeals have been filed by special leave under Art. 136 of the Constitution, it would normally not be open to the appellants to raise questions of fact before us. Prima  facie  the orders of conviction and  sentence  passed against  the appellants are based on concurrent findings  of fact  and we would be slow to interfere with  such  findings unless we are satisfied that the said findings are  vitiated by  errors  of law or that the conclusions  reached  by  the courts  below  are so patently opposed to  well  established

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principles   of   judicial  approach,  that  they   can   be characterised as wholly unjustified and even perverse.   On  behalf of Harbans Singh, it has been urged. before  us by  Mr. Kohli that the judgment of the High Court of  Punjab suffers  from a serious infirmity in that, in  dealing  with the  evidence  of the approver, the learned  Judges  do  not appear  to  have  addressed themselves  to  the  preliminary question as to whether the approver is a reliable witness or not.   The  problem  posed  by the  evidence  given  by  an. approver has been considered by the Privy Council and courts in  India on several occasions.  It is hardly  necessary  to deal at length with the true legal position in this  matter. An accomplice is undoubtedly a competent witness under 959 the  Indian Evidence Act.  There can be, however,  no  doubt that  the  very  fact  that  he  has  participated  in  ,the commission of the offence introduces a serious stain in  his evidence  and courts are naturally reluctant to act on  such tainted  evidence  unless  it is  corroborated  in  material particulars by other independent evidence.  It would not  be right to expect that such independent   corroboration should cover  the whole of the prosecution story -or even  all  the material  particulars.  If such a view is adopted  it  would render  the evidence of the accomplice  wholly  superfluous. On  the  other hand, it would not be safe to act  upon  such evidence   merely  because  it  is  corroborated  in   minor particulars  or incidental details because, in such a  case, corroboration  does not afford the necessary assurance  that the  main story disclosed by the approver can be  reasonably and safely accepted as true.  But it must never be forgotten that  before the court reaches the stage of considering  the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is  whether even  as an accomplice the approver is a  reliable  witness. If the answer to this question is against the approver  then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be  considered. In  other words, the appreciation of an approver’s  evidence has  to satisfy a double test.  His evidence must show  that he is a reliable witness and that is a test which is  common to all witnesses.  If this test is satisfied the second test which  still  remains to be applied is that  the  approver’s evidence  must receive sufficient corroboration.  This  test is  special  to the cases of weak or tainted  evidence  like that of the approver.  Mr. Kohli’s contention is that  since the  learned Judges of the High Court of Punjab have  failed to  address  themselves  to  this  initial  question,  their appreciation  of  the  approver’s evidence  suffers  from  a serious infirmity.  In our opinion, this contention is well- founded.   We have carefully read the judgment delivered  by the High Court but we find no indication in the whole of the judgment that the learned Judges considered the character of the approver’s evidence and reached the 960 conclusion  that  it was the evidence given  by  a  reliable witness.   The only statement which we find in the  judgment dealing with this topic is that " since the main evidence in the  case  consists of the testimony of the approver  it  is necessary to consider the case of each J.    appellant individually.   " With respect, this observation is open  to the criticism which has been made against it by Mr. Kohli. The  argument that the character of the approver’s  evidence has  not  been  considered  by  the  High  Court  cannot  be characterised  as  merely  academic or  theoretical  in  the present  case because, as we will presently point  out,  the

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evidence of the approver is so thoroughly discrepant that it would  be  difficult  to  resist  the  conclusion  that  the approver in the present case is a wholly unreliable witness. Indeed  it may be legitimate to point out that  the  learned Judges  of  the High Court have  themselves  criticised  the evidence  of  the approver in dealing with  the  prosecution case  against Gurdial Singh and have ultimately  found  that the account given by the approver is unreliable and,  though there was circumstantial evidence which raised an amount  of suspicion against Gurdial Singh, that would not be enough to sustain his conviction.  It seems to us that if it was found that  the  approver’s  account against one  of  the  accused persons  was wholly discrepant, this finding  itself  should inevitably have led the court to scrutinise his evidence  in respect  of the other accused persons with greater  caution. Besides,  it is somewhat unfortunate that the  attention  of the  learned  Judges of the High Court  was  presumably  not drawn  to  the  still  more  serious  discrepancies  in  the evidence  of the approver in regard to the part assigned  to Harbans  Singh  in the commission of the  offence.   In  the evidence’  given by the approver before the trial court,  he has definitely and unequivocally implicated Harbans Singh in the  commission of the offence.  It has been brought out  in the cross-examination that in the very first statement  made by the approver before the investigating officer on November 25  he  had made statements about Harbans  Singh  which  are wholly  inconsistent  with the subsequent  story.   In  this statement, the 961 approver  had definitely stated that only the three of  them were concerned with the commission of the offence,  himself, Sarwan Singh and Gurdial Singh.  He had also stated  clearly in  the  said statement that Harbans Singh did not  join  in murdering Gurdev Singh.  It is remarkable that in regard  to almost  every material particular about the part  played  by Harbans  Singh  in the commission of the offence  the  story disclosed by the approver at the trial is inconsistent  with his first statement before the police.  In his statement  at the trial, the approver assigns Gurdial Singh the possession of  lathi  and according to him Gurdial  Singh  subsequently took  up  the kirpan from Sarwan Singh and  murdered  Gurdev Singh after which Harbans Singh himself gave a blow with  it at  the  neck of the victim.  In his  statement  before  the police, the approver had said that Gurdial Singh had carried a kirpan.  We are deliberately not referring to the  several other minor discrepancies which have been brought out in the evidence  of the approver in his cross-examination.  In  our opinion,  the discrepancies brought out in the  evidence  of the approver qua the prosecution case against Gurdial  Singh coupled with the more serious discrepancies in his  evidence in  the prosecution case against Harbans Singh lead to  only one  conclusion and that is that the approver has no  regard for truth.  It is true that in his second statement recorded on November 29, the approver substantially changed his first story  and involved Harbans Singh in the commission  of  the offence, and in that sense, his second statement can be said to  be  consistent with his evidence at the trial.   But  we cannot lose sight of the fact that, within three days  after the recording of his second statement, he was granted pardon and  his statement was recorded under s. 164 of the Code  of Criminal  Procedure on the same day.  Therefore it would  be legitimate  for  the accused to contend that  the  additions made by the approver in his subsequent statement may be  the result  of promise held out to him that he would be  granted pardon.   Apart  from  this consideration, in  view  of  the

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positive  statements  made  by the  approver  in  his  first recorded statement, there can be no doubt 124 962 that  the subsequent allegations against Harbans  Singh  are improvements  and are the result of his decision to  involve Harbans Singh in the commission of the offence.  If this was a  case  where  the  statements  made  by  the  approver  on subsequent  occasions  merely added details which  were  not included in the first statement, it may perhaps have been  a different matter.  It is true that omissions have not always the same significance as contradictions; but in the  present case it is patent that the two sets of statements are wholly inconsistent and irreconcilable and that obviously leads  to a  very serious infirmity in the character of  the  witness. It  is  indeed  to be regretted that the  attention  of  the learned  Judges  of  the High Court was not  drawn  to  this aspect  of the matter and they were not invited to  consider the  initial  question  as to whether  the  approver,  Banta Singh, was a reliable witness at all.  Every person who is a competent witness is not a reliable witness and the test  of reliability has to be satisfied by an approver all the  more before  the  question of corroboration of  his  evidence  is considered by criminal courts.  If  the  evidence  of the approver is  discarded  as  being unreliable  the case against Harbans Singh  must  inevitably fail.  No doubt there are some circumstances against him  on which the prosecution relies.  The evidence of Rakha (P.W.8) would show that Harbans Singh and the other accused  persons were  concerned  with the purchase of a pistol  from  Rakha. Incidentally this pistol has not been used in the commission of the offence at all and that, in the circumstances, it  is difficult  to  explain.  However, the purchase of  a  pistol from  Rakha  may merely raise a  suspicion  against  Harbans Singh but suspicions, however strong, cannot take the  place of proof.  Harbans Singh had injuries on his person and  the conduct  of Harbans Singh soon after the commission  of  the offence  was  very  suspicious.   That  again  may  raise  a suspicion against Harbans Singh but without the basis of the approver’s evidence the suspicious circumstances can play no effective  part  in  a criminal  trial.   The  discovery  of clothes alleged to have been made at 963 the  place  of Gurdev Kaur cannot be  pressed  into  service against  Harbans Singh because Gurdev Kaur herself  has  not been examined and the importance of the recovery of a kirpan and  a  red  scabbard  from the  spot  cannot  obviously  be exaggerated.   In  our opinion, there is no  doubt  whatever that, if the approver’s evidence is rejected as  unreliable, the  other evidence on which the prosecution relied  against Harbans Singh cannot possibly sustain his conviction of  the offence  of  murder.   We must,  therefore,  hold  that  the finding  of  the learned Judges of the High Court  that  the offence  of murder has been proved against Harbans Singh  is vitiated  by  a  serious infirmity to  which  we  have  just referred  and must be reversed.  If the learned Judges  have failed to address themselves to the initial question of  law before  dealing with the merits of the approver and  if,  in dealing  with  his evidence, they have failed to  take  into account  the  glaring  and obvious  inconsistencies  in  the account  given by the approver, it is open to the  appellant to  challenge  the  validity of their  conclusion.   In  the result,  the  appeal  preferred by  Harbans  Singh  must  be allowed, the order of conviction and sentence passed against him  must  be  set  aside  and  he  must  be  acquitted  and

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discharged.  That  takes us to the case of accused No. 3, Sarwan  Singh. We  have  already pointed out that the order  of  conviction passed against Sarwan Singh is in the words of the  judgment of  the  High Court based on the fact that "  there  is  the evidence  of  the approver and it is corroborated  in  every particular  by  his own confessional statement  ".  Besides, there  is other circumstantial evidence to  which  reference has already been made in narrating the prosecution story  at the beginning of this judgment.  It would at once be noticed that,  if we come to the conclusion that the approver is  an unreliable  witness,  the  basis  of  the  evidence  of  the approver  on  which  the learned Judges of  the  High  Court proceeded  even while dealing with the case  against  Sarwan Singh has been shaken.  If, in our opinion, the approver  is unworthy  of  credit,  then  it would  not  be  possible  to consider the question 964 of  the  corroboration that his evidence receives  from  the confessional statement made by Sarwan Singh himself.  It is, however, true that Sarwan Singh has made a confession and in law  it  would be open to the court to convict him  on  this confession itself though he has retracted his confession  at a  later  stage.  Nevertheless usually courts  require  some corroboration   to   the   confessional   statement   before convicting  an  accused person on such  a  statement.   What amount  of corroboration would be necessary in such  a  case would  always be a question of fact to be determined in  the light  of  the circumstances of each case.  In  the  present case, the learned Sessions Judge has considered the question about  the  voluntary character of the  confession  made  by Sarwan  Singh  and has found in favour of  the  prosecution. The judgment of the High Court shows that the learned Judges agreed  with  the  view of the learned  trial  Judge  mainly because  the  evidence of the Magistrate  who  recorded  the confession  appeared to the learned Judges to show that  the confession  was  voluntary.   It  is  this  view  which   is seriously  challenged before us by Mr. Mathur on  behalf  of Sarwan Singh.  Prima facie whether or not the confession  is voluntary  would  be  a question of fact  and  we  would  be reluctant to interfere with a finding on such a question  of fact  unless we are satisfied that the impugned finding  has been  reached without applying the true and  relevant  legal tests  in the matter.  As in the case of the evidence  given by  the  approver, so too unfortunately in the case  of  the confession  of  Sarwan Singh the attention  of  the  learned Judges  below  does not appear to have been  drawn  to  some salient and grave features which have a material bearing  on the   question   about  the  voluntary  character   of   the confession.  Sarwan Singh was arrested on November 25.   His clothes  were found blood-stained and he is alleged to  have been  inclined  to  help  the  prosecution  by  making   the statement  which  led  to  the  discovery  of  incriminating articles.   All  this happened on the 25th itself  and  yet, without any ostensible explanation or justification,  Sarwan Singh was kept in police custody until November 30.  That is one fact 965 which  is to be borne in mind in dealing with the  voluntary character  of his confession.  What happened on November  30 is  still more significant.  On this day he was sent to  the Magistrate  to  record  his  confessional  statement.    The evidence of the Magistrate Mr. Grover shows that the accused was  produced  before him at about 2-30 p.m.  He  was  given about  half-an-hour to( think about the statement  which  he

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was  going  to  make and soon  thereafter  the  confessional statement was recorded.  It is true that the Magistrate  did put to the accused the questions prescribed by the circulars issued  by  the  High Court of Punjab.  Even  so,  when  the learned  Magistrate was asked why he did not give more  time to  the  accused  before  his  confessional  statement   was recorded, his reply was frank and honest.  He said that  the accused   seemed   to  insist  upon   making   a   statement straightaway.   The Police Sub-Inspector who had  taken  the accused  to  the Magistrate was apparently standing  in  the verandah  outside in the Magistrate’s office.  The doors  of the  office were closed but the fact still remains that  the Sub-Inspector  was  standing outside.  The evidence  of  the Magistrate  also  shows that, soon after the  statement  was finished,  the Sub-Inspector went to the  Magistrate’s  room again.  The person of the accused showed some injuries  and. yet  the learned Magistrate did not enquire how the  accused came   to  be  injured.   It  is  in  the  light  of   these circumstances  that  the  question falls  to  be  considered whether  the confession made by the accused can be  regarded as voluntary.  It is hardly necessary to emphasize that  the act  of  recording confessions under s. 164 of the  Code  of Criminal Procedure is a very solemn act and, in  discharging his duties under the said section, the Magistrate must  take care  to see that the requirements of sub-s. (3) of  s.  164 are  fully  satisfied.  It would of course be  necessary  in every case to put the questions prescribed by the High Court circulars  but the questions intended to be put under sub  - s. (3) of s. 164 should not be allowed to become a matter of a mere mechanical enquiry.  No element of casualness  should be  allowed to creep in and the Magistrate should  be  fully satisfied that the confessional statement which the accused 966 wants  to  make  is  in fact  and  in  substance  voluntary. Incidentally, we may invite the attention of the High  Court of -Punjab to the fact that the circulars issued by the High Court  of  Punjab  in  the matter of  the  procedure  to  be followed,  and  questions  to  be put  to  the  accused,  by Magistrates  recording  confessions  under  s.  164  may  be revised  and suitable amendments and additions made  in  the said  circulars in the light of similar circulars issued  by the  High Courts of Uttar Pradesh, Bombay and  Madras.   The whole  object of putting questions to an accused person  who offers to confess is to obtain an assurance of the fact that the  confession is not caused by any inducement,  threat  or promise  having reference to the charge against the  accused person  as  mentioned in s. 24 of the Indian  Evidence  Act. There  can  be  no doubt that, when  an  accused  person  is produced before the Magistrate by the investigating officer, it  is  of utmost importance that the mind  of  the  accused person   should  be  completely  freed  from  any   possible influence  of the police and the effective way  of  securing such freedom from fear to the accused person is to send  him to  jail  custody  and give him adequate  time  to  consider whether  he  should  make a confession  at  all.   It  would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person  in any  given case.  However, speaking generally, it would,  we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make  a confession.   Where there may be reason to suspect that  the accused has been persuaded or coerced to make a  confession, even  longer period may have to be given to him  before  his statement is recorded.  In our opinion, in the circumstances of this case it is impossible to accept the view that enough

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time  was  given to the accused to think  over  the  matter. Indeed, any Magistrate with enough criminal experience would have immediately decided to give longer time to Sarwan Singh in the present case for the obvious reason that Sarwan Singh appeared  to the learned Magistrate to be keen on  making  a confession straightaway.  The learned Magistrate himself has fairly stated that he would 967 have given him longer time but for his insistence to make  a confession  without delay.  This insistence on the  part  of Sarwan  Singh to make a confession immediately  should  have put the learned Magistrate on his guard because it obviously bore,    traces   of   police   pressure   or    inducement. Unfortunately,  the  effect of the failure  of  the  learned Magistrate to’ grant enough time to the accused to  consider the  matter has not been considered by the learned  Sessions Judge  and has been wholly ignored by the learned Judges  of the  High  Court.  Besides, in neither court below  has  any attention  been paid to the fact that Sarwan Singh  appeared to   have   been  kept  in  police   custody   without   any justification between November 26 and November 30.  We  have carefully considered all the relevant facts bearing on  this question  and we see no escape from the conclusion that  the failure of the learned Judges of the High Court to take into account these material facts has introduced a serious  legal infirmity  in their conclusion that the confession  made  by Sarwan  Singh  is voluntary.  That is why we think  we  must reverse this conclusion. There  is, besides, another fact which is equally  fatal  to the. prosecution case.  Even if the confession is held to be voluntary,  it must also be established that the  confession is true and for the purpose of dealing with this question it would be necessary to examine the confession and compare  it with   the  rest  of  the  prosecution  evidence   and   the probabilities  in the case.  In our opinion,  some  material points mentioned in the confessional statement are not shown to  be true.  Sarwan Singh says that when Gurdev  Singh  was assaulted  he  and his brother Harbans  Singh  were  walking together.   On the other hand the prosecution story is  that Harbans  Singh had first contacted his accomplices  and  had told  them that he would send Gurdev Singh towards the  spot where the accomplices would lie in wait for him.  The  story further is that when Gurdev Singh suspected that there  were some  people  near  about he shouted to  Harbans  Singh  and before  Harbans  Singh came on the spot assault  had  begun. This part of the prosecution story as deposed to by the 968 approver is inconsistent with the material statement in  the confession.  According to the confession, Dial Singh gave  a Dang blow to Gurdev Singh on the head from the front.   This statement is not borne out by medical evidence.  There  does not  appear to be a corresponding injury on the head of  the victim.  Sarwan Singh says that he took the kirpan which was first  used  by Harbans Singh and gave two blows  to  Gurdev Singh  on his thigh.  This statement again is not borne  out by  the medical evidence -about the injuries on the body  of the  victim.  Similarly, the statement of Sarwan Singh  that the  handle of the kirpan was broken and he got  his  finger injured with it is not easily reconcilable with the  medical evidence  about  the  injury  itself.   Unfortunately  these discrepancies  between  the confessional statement  and  the main  prosecution  evidence given by the approver  have  not been  noticed  by  the learned Judges  of  the  High  Court. Indeed,   after  having  found  that  the   confession   was voluntary,it  appears  to have been assumed by  the  learned

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Judges  that  the  confession  was true  and  that,  in  our opinion,  is another infirmity in the conclusion reached  by the High Court.   That leaves the other circumstances which have been proved against Sarwan Singh to be considered.  There were  injuries on his person.  They are thus described by the doctor:- "  1. A superficial incised wound with a scab, 3/8" x  1/12" on the left side of the face, just above the left moustache.  2.An abrasion with a scab 1/2" x 1/4" on the outer  surface of the middle digit of the left ring finger.  3. An abrasion with a scab 1/8" x 1/8" on the outer surface of the middle digit of the left little finger. 4.An  abrasion with a scab 1/4" x 1/4" on the outer  surface of  the  terminal  inter-digital joint of  the  left  little finger. All the injuries were simple and of about two days duration. Injury No. 1 was caused by sharpedged weapon and the rest by some blunt weapon." 969 In his cross-examination Dr. Singh admitted that injury  No. I could have been caused by razor blade as suggested by  the counsel for Sarwan Singh and injuries Nos. 2 to 4 could have been  caused  by rubbing against some  hard  substance.   In other  words, on medical evidence it is difficult to  reject the  explanation of the accused as unreasonable or  palpably untrue.   Then we have the evidence of blood-stains  on  the shirt  and chadar worn by Sarwan Singh.  If the  explanation given by Sarwan Singh about his injuries is not unreasonable then  the  presence of blood-stains on his dress  cannot  be seriously pressed against him.  The evidence of Rakha  about the negotiations and purchase of a pistol from him and about the  part of Sarwan Singh in that transaction no  doubt  may suggest that Sarwan Singh was associated with the  criminals but  that  is  very far from proving the  charge  of  murder against him.   Incidentally, as we have already observed, if the  pistol was purchased it is difficult to understand  why it  was  not used.  Then we have the evidence of  the  shoes which were found on the spot. The evidence of the shoe-maker Santa  Singh  suggests that he had identified  the  pair  of shoes  as  belonging  to  Sarwan  Singh  that  very   night. According to him, he has been manufacturing shoes like  this pair  though  not on a large scale’  Unfortunately,  in  his examination  under s. 342 of the Code, no question had  been put  to Sarwan Singh about these shoes.  It is not  unlikely that  Sarwan Singh may have offered to demonstrate that  the shoes  did not fit in with his feet.  In any event,  failure to  give him an opportunity to explain the circumstances  by putting  an  appropriate  question  to  him  under  s.   342 justifies his argument that this circumstance should not  be used  against  him.   Besides, like the  evidence  given  by Rakha, the identity of the shoes would also be a very  minor circumstance  in relation to the charge of murder for  which Sarwan  Singh  is being tried.  The result is that,  if  the approver’s  evidence is discarded as unworthy of credit  and his own retracted confession is excluded from  consideration as  not  being voluntary or  true,  whatever  circumstantial evidence remains is obviously insufficient to 125 970 bring  home to Sarwan Singh the charge framed  against  him. If that be the true position, we must hold that the  learned Judges of the High Court were in error in convicting  Sarwan Singh of the offence of murder.  It is no doubt a matter  of regret  that a foul cold-blooded and cruel murder  like  the present should go unpunished.  It may be as Mr. Gopal  Singh

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strenuously  urged  before us that there is  an  element  of truth in the prosecution story against both the  appellants. Mr.  Gopal  Singh contended that considered as a whole,  the prosecution story may be true; but between ’may be true’ and ’must be true’ there is inevitably a long distance to travel and  the  whole of this distance must be covered  by  legal, reliable  and  unimpeachable evidence.   We  have  carefully considered  all  the arguments which Mr. Gopal  Singh  urged before  us;  but  we do not think it would  be  possible  to regard  the approver as a reliable witness or to  hold  that the confession of Sarwan Singh is voluntary or true.  In the result,  the  appeal  preferred  by  Sarwan  Singh  must  be allowed, the order of conviction and sentence passed against him  must  be  set  aside  and  he  must  be  acquitted  and discharged.                 Apppeals allowed.