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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: GURDEEP SINGH

DATE OF JUDGMENT:       08/09/1999

BENCH: Umesh C Banerjee, K.T.Thomes, D.P.Mohapatro

JUDGMENT:

BANERJEE,J.

     The  short  question involved in the matter  in  issue before  this  Court  is the justifiability of the  order  of acquittal  passed  by  the High Court by reason of  lack  of probative value of an extra judicial confession, as found by the High Court, in an appeal against conviction and sentence under  section  376  read with sections 302 and 201  of  the Indian  Penal Code.  Admittedly, there is no direct evidence available on the record so as to attribute the commission of crime  to the respondent herein but it is only on the  basis of  an  extra judicial confession that the learned  Sessions Judge  thought  it  fit  to   pass  the  sentence  for  life imprisonment,  which  stands  reversed by  the  High  Court. Confession   in  common  acceptation   means   and   implies acknowledgment  of  guilt  - its evidentiary value  and  its acceptability however shall have to be assessed by the Court having  due regard to the credibility of the witnesses.   In the  event  however,  the Court is otherwise in  a  position having  due  regard to the attending circumstances  believes the  witness  before  whom  the confession is  made  and  is otherwise satisfied that the confession is in fact voluntary and  without  there  being any doubt in regard  thereto,  an order  of  conviction can be founded on such evidence.   The observations  of  this Court in the case of State  of  Uttar Pradesh v.  M.K.  Anthony (1985 Crl.  Law Journal 493) seems to  be rather apposite in this context.  In paragraph 15  of the Report, this Court observed as below:  "There is neither any  rule of law nor of prudence that evidence furnished  by extra-judicial  confession  cannot  be  relied  upon  unless corroborated  by  some other credible evidence.  The  Courts have  considered the evidence of extra judicial confession a weak  piece  of  evidence.   If  the  evidence  about  extra judicial    confession    comes    from    the   mouth    of witness/witnesses  who  appear  to  be  unbiased,  not  even remotely  inimical  to the accused, and in respect  of  whom nothing  is  brought out which may tend to indicate that  he may have a motive for attributing an untruthful statement to the  accused;  the words spoken to by the witness are clear, unambiguous  and unmistakably convey that the accused is the perpetrator  of  the  crime and nothing is  omitted  by  the witness which may militate against it, then after subjecting

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the  evidence  of  the  witness to a rigorous  test  on  the touchstone  of credibility, if it passes the test, the extra judicial  confession  can be accepted and be the basis of  a conviction.   In  such  a  situation, to  go  in  search  of corroboration  itself  tends to cast a shadow of doubt  over the  evidence.  If the evidence of extra judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon."

     Incidentally,  this Court in the case of Narayan Singh &  Ors.   v.  State of M.P.  ( AIR 1985 SC  1678)  expressly observed  that  it is not open to any court to start with  a presumption that extra judicial confession is a weak type of evidence.  In paragraph 7 of the report this Court observed:

     "Apart  from this there is the evidence of PWs 5 and 9 who  state  on oath that one of the accused admitted  before them  that  he  had  murdered  the  deceased.   The  learned Sessions Judge has brushed aside their evidence by presuming that  their  statements  constituting   an  extra   judicial confession is a very weak type of evidence.  This is a wrong view  of the law.  It is not open to any court to start with a  presumption that extra judicial confession is a weak type of  evidence.   It  would  depend  on  the  nature  of   the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. In  the  instant case, after perusing the evidence of PWs  5 and 9 we are unable to find anything which could lead to the conclusion that these independent witnesses were not telling the  truth.  The evidence of these two witnesses (PWs 5  and 9)  which  lends  support  to  the evidence  of  PW  11  was sufficient  to  warrant the conviction of the accused.   The Sessions  Judge  has  committed  a grave  error  of  law  in analysing  and appreciating the evidence of PWs 5 and 9  and brushing them aside on untenable grounds."

     In  Baldev Raj vs.  State of Haryana ( AIR 1991 SC 37) this Court further stated the law as below:-

     "An  extra  judicial confession, if voluntary, can  be relied  upon  by  the  Court along with  other  evidence  in convicting the accused.  The value of the evidence as to the confession  depends  upon the veracity of the  witnesses  to whom  it  is made.  It is true that the Court  requires  the witness  to  give  the actual words used by the  accused  as nearly as possible but it is not an invariable rule that the Court  should  not  accept the evidence, if not  the  actual words  but  the substance were given.  It is for  the  Court having  regard  to the credibility of the witness to  accept the  evidence  or not.  When the Court believes the  witness before  whom the confession is made and it is satisfied that the  confession was voluntary, conviction can be founded  on such  evidence.   Keeping these principles in mind, we  find that  the  confession has been properly accepted  and  acted upon by the Courts below and there is no scope for any doubt regarding the complicity of the appellant in the crime.  The confession of the appellant was voluntary.  The testimony of PW 4 and PW 5 being responsible persons could not be doubted in  the  absence of any material to show that they had  been motivated  to  falsely  implicate the appellant.   The  very presence  of the appellant and his father with the party  of Ishar  Dass  throughout  the  operation  up  to  lodging  of complaint at the police station dispel any suspicion against the  prosecution case and clearly point to the  truthfulness

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of  the  same.   We  are,  therefore,  unable  to  find  any infirmity  in  the  confession which has been  accepted  and relied upon by the Courts below."

     While  it is true that in Narayan Singh’s case (supra) this  Court  expressly observed that it is not open  to  any Court  to  start  with  a presumption  that  extra  judicial confession  is a weak type of evidence, a later decision  of this Court in Kavita vs.  State of Tamilnadu (1998 (5) JT SC 151)  stated that in the very nature of things it is a  weak piece  of evidence.  In paragraph 4 of the Report this Court in Kavita’s case (supra) observed:

     "There  is  no doubt that convictions can be based  on extra judicial confession but it is well settled that in the very  nature of things, it is a weak piece of evidence.   It is  to  be  proved just like any other fact  and  the  value thereof  depends upon the veracity of the witness to whom it is made.  It may not be necessary that the actual words used by  the  accused must be given by the witness but it is  for the  Court  to decide on the acceptability of  the  evidence having regard to the credibility of the witnesses.

     Apparently  there  may seem to be some  expression  of divergence but on the totality of the situation, question of there being any difference of expression of opinion does not arise,  since  Kavita’s case (supra) in no  uncertain  terms laid  down that the evidentiary value of the extra  judicial confession  depends  upon the veracity of the  witnesses  to whom  it  is made and it is for the Court to decide  on  the acceptability   of  the  evidence   having  regard  to   the credibility  of the witnesses.  Having dealt with the basics of  the  legal issue as regards evidentiary value  of  extra judicial  confession and adverting to the factual matrix  of the  matter  at this juncture, the prosecution case as  made out  is to the following effect:  The deceased being a young girl  of 10 years along with her brother Sandeep had gone to the  house  of  the accused around 7.30/8.00 p.m.   on  18th November,  1989 for the purpose of watching television.  The evidence  disclosed  that Rajinder Singh who happened to  be father’s  sister’s  husband did also come to pay a visit  to the house of the deceased’s father and it so happened and as the  evidence  records that Rajinder Singh also went to  the house  of the accused for watching television along with the two  little  children:  The factual score depicts  that  the brother  continued  to  watch the television but  the  elder sister  left  the television room to go back to  her  house. Rajinder  Singh again as the evidence disclosed came out  as well and found that the accused in a drunken state following the  deceased  on  her  way home around 8 O’  clock  in  the evening.  The next piece of evidence is rather curious:  the deceased girl does not reach home but Rajinder Singh reaches home,  had his meal along with the parents of the  deceased. The  younger  brother  who  also  went  out  for  television watching  in  the  house of the accused, returned  home  and joined  the parents and the uncle for the meal - there  was, however,  no anxiety for the missing daughter of the  family and  it  was  only after Rajinder Singh left for  his  house which is at the next village and around 10 to 15 k.m.  away, the deceased’s father Jaswant Singh tried to effect a search about  the daughter - Jaswant Singh, in a very natural  way, went  to the house of the accused and found the accused  and his brother to be very heavily drunk in the house itself and thus  had  to come back without much information  about  the missing  daughter.  The evidence goes on to record that next

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morning  the  body  of the deceased was found  in  the  open verandah  of  a building belonging to one Smt.  Ajmer  Kaur. In  her  evidence Smt.  Ajmer Kaur, being PW 4  stated  that when  she had gone to the verandah for taking ‘turi’ for the cattle,  found  the dead body of the child lying  under  the heap  of ‘turi’ and on such a find immediately informed  the girl’s  father  Jaswant Singh.  On this score the father  of the  deceased  stated that he on being informed cleared  the ‘turi’  and  saw the dead body of his daughter  lying  there fully  naked and her salwar was lying near her.  The  father stated  that  she  was smeared with blood and was  dead  and thereafter requested the son of the Sarpanch to keep a watch on  the  body  and went to the police station to  lodge  the report  alongwith the Sarpanch.  The police arrived and  the usual  formalities were completed and FIR was lodged and  on completion  of  the  inquest sent the body for  post  mortem examination.   Dr.  H.N.  Sharma, P.W.5 found the  following injuries  on  the  person of the deceased:-  "(1)  In  front aspect  of  the neck, 1 c.m.  above the midline 2  abrasions with dimensions of 2X3 cm were seen.  On disection underline tissues were found to be swollen.  Clotted blood was seen in tissues.  The thyroid cartrilige on right laminu was showing fracture line.

     (2)  The  parienial area showed toori strawe.  In  the vulvel  area blood clot was seen, hymen found ruptured,  the vagine  admitted  two fingers, posterior vaginal  wall  near commisuru  showed lacaration.  Vaginal walls were congested. Labia  minore were found congested and torn, two swabs  were taken  each  from vagine and cervix.  They were  smeared  on slides  and  sent  to  Chemical Examiner  Govt.   of  Punjab Patiala.

     The  upper  part  of chest had prominent  veins.   The laryogal  cavity showed clotted blood.  Right side of  heart found full of dark coloured blood.  Stomach was found empty, bladder contained around 20 ml.  of urine."

     The  post  mortem Doctor opined that death was  caused due  to  injury No.1.  He also found that the  deceased  was subjected  to  rape  before the murder and the  age  of  the deceased  was between 7 to 11 years- the facts above  cannot but  be  ascribed  to  be not only serious  but  ghastly  in nature.   While it is true that the social aberration  which results  from  the offence is devastating by reason  of  the nature of the offence committed on a very young girl and the offenders  cannot possibly obtain any support or  mitigating effect from courts of law, we however, remind ourselves that the  law  of  the  land shall have  to  be  administered  in accordance with the principles of criminal justice.  At this juncture,  another  aspect of the matter ought to be  noted, namely,  an extra judicial confession by the accused Gurdeep Singh  to  one  Jaspal Singh (P.W.7).   The  extra  judicial confession runs as below:

     "that  20  days  ago  I had  committed  a  wrong  act. Manpreet  Kaur  her younger brother Sandeep Singh and  their relation  had  come to see television at our house.  I  came from  outside after taking liquor.  Then I was served run by my  brother  who is in the army.  When Manpreet went out  of the  house, I followed her.  Then I caught hold of her  took her  in  the  veranda where grain husk was  lying.   I  then untied  string of salwar, committed rape on her and when she raised  alarm,  I gagged her mouth with her shawl.   When  I thought that she will narrate what had happened to her, then

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I  throttled her and killed and I concealed her body in  the heap  of  grain husk and then I ran away towards a pond  and since  then  I  have been roaming about.  You are  known  to Jaswant  Singh, father of girl.  I had committed this act in the  influence of liquor and get me pardon from them as they are your relatives."

     It  is the evidence of Jaspal Singh (PW 7) that he  is driving  taxi at Ropar and the accused was also driving  the car  of a Sant which was also being used as a taxi and  used to  park his car in the same parking space as used by Jaspal Singh.   It is the categorical evidence of Jaspal Singh that on  12th  December,  1989 i.e.  after about 24 days  of  the incident  the  accused came to him and told him that he  had committed  rape on Manpreet Kaur and murdered her.  The said evidence  of  Jaspal  Singh  was  accepted  by  the  learned Sessions   Judge  by  reason  of   the  fact  that  it   was corroborated  by  the  evidence of Rajinder  Singh  who  had stated that he found the accused following the deceased in a drunken  condition.   But that finding was negatived by  the High  Court  on  the ground that extra  judicial  confession after  long  lapse of time is of no consequence.   The  High Court  reminded  itself that circumstantial evidence  should not  only  be consistent with the guilt of the  accused  but should   be   inconsistent   with    his   innocence.    The circumstances  must  be of such a nature and should  form  a complete  chain as to be capable of supporting the exclusive hypothesis  that the accused is guilty of the crime of which he  is  charged.  There is no denial of the fact that  extra judicial  confession is admissible in evidence and the court in  appropriate cases can rely thereon to the extent of even basing  conviction  of  the accused.  In a  long  catena  of decisions of this Court, the settled position of the present day  is  that  the extra judicial confession by  itself  if, otherwise  in  conformity  with the law, can be  treated  as substantive  evidence,  and in appropriate cases it  can  be used  to  punish an offender.  We , however, hasten  to  add here  that  this  statement of law stands qualified  to  the extent  that  the  Court  should  insist  on  some  assuring material  or  circumstance  to treat the same  as  piece  of substantive  evidence.   Having  thus  stated  the  law  and general principles as to the extent of reliance to be placed on the circumstantial evidence, let us at this juncture turn on  to the factual score in a little bit greater detail  for the purposes of the assessment of the entire situation as to whether extra judicial confession noticed above can have any credence  or evidentiary value.  But before so doing certain basic  features  in the matter in issue ought to  be  noted. The  features being:  (i) the deceased, a young girl of 7 to 10 years along with her brother had gone to the house of the accused  in  the  evening   for  television  viewing;   (ii) Rajinder  Singh who happened to be the brother-in-law of the deceased’s  father,  also deemed it fit to go and watch  the television programme rather than stay with the relatives and have some chit chat with the brother-in-law;  (iii) Rajinder Singh also went out of the Television Room shortly after the deceased  left  the house of the accused and found that  the deceased  was  being  followed by a drunken man -  it  is  a definite  piece of evidence in the matter that the house  of the  deceased  and that of the accused is not very far  from each  other ( may be two or three houses in between);   (iv) Rajinder  Singh  being an elderly man - at least not a  teen ager  -  allowed  a  girl of 7 to 10 years,  being  a  close relative,  to be followed by a drunken man and quietly  went

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back  to  the  deceased’s  house without  any  utterance  as regards  the event witnessed by him - had his meal with  the brother-in-law  and  went  back to the village:   The  facts above,  have been very strongly criticised by the High Court and  we  find sufficient justification in that regard  since normal  reaction  of a relative, would be to take  the  girl home or bring the father on to the sight immediately or even after  going back to the deceased’s house narrate the  event of  the  girl being followed by a drunken man as also to  go out  with  the  father  in search  of  the  girl  afterwards alongwith  the deceased’s father:  It is difficult to  treat it  as  a  conduct  in  consonance  with  the  normal  human behaviour  of  a relative having seen the young girl  of  10 years   being   followed  by  a   drunken   person.    Human relationship  cannot possibly have the same kind of reaction as  has  been depicted by Shri Rajinder Singh and it  is  on this  score  that  the learned Advocate for  the  respondent herein also strongly commented upon the introduction of this particular   witness  in  order  to   have  a   semblem   of corroboration   at  best  so   far  as  the   extra-judicial confession  is  concerned.  The recovery of the body of  the deceased  by  itself  does not find any link or in  any  way connect  the  accused  with the commission of  the  offence. Records  depict  that Sandeep being the younger brother  was not  examined  and  the learned Advocate in support  of  the appeal,  also  has no answer.  Turning attention on  to  the issue of probative value and total evidenciary impact in the matter,  one  cannot  but return a verdict  of  non-  credit worthiness  of such a piece of circumstantial evidence:   24 long  days  have  elapsed  -  and   it  is  only  then   the investigating  officer  was  able to locate  a  fellow  Taxi driver,  who  appears  to  be   the  brother-in-law  of  the brother-in-  law of father of the deceased.  The evidence of Rajinder  Singh thus becomes important - but is it worthy of such  an importance - The Sessions Court has exaggerated its effect, whereas the High Court has completely over-turned it and  described the same as a wholly unreliable and  untrust- worthy  evidence.   We  have herein before dealt  with  this particular  piece of evidence - Can the reaction of a  close relative be in the manner as Rajinder Singh had - The answer cannot but be in the negative - where is the anxiety to look for  the  girl  - where is the desire to  see  that  nothing untoward  should  happen  - a minor girl of 10  years  being followed  by a drunken man and thereafter the girl does  not come  back  home till such time he finishes the meal:   Even thereafter not a word to the father but he quietly went back to  his  own village:  It is not a trust-worthy evidence  to rely  on for corroboration to the extra-judicial  confession to complete the chain of circumstances.  If the above pieces of  evidence  are kept aside - there is no  other  available evidence  which  can even remotely connect or point  towards the  guilt  of  the accused.  There is no dispute  that  the deceased was raped and murdered but that would not be enough for the prosecution to rope in the accused without some such evidence depicting unmistakably to the guilt of the accused. The  next important aspect is the credibility of the  person who  spoke about the confession.  He is a taxi driver and no part  of  evidence records that he has had a clout with  the Police  -  It  is  not  in evidence  as  to  the  period  of friendship  between accused and the witness - Indeed a  very close  friend may be taken into confidence and a  confession effected - Commission of an offence of rape on a minor child and  thereafter eliminating the victim girl from this  world could  not  have  been talked of or discussed  with  any  or everybody  so  casually.  There must be some cogent  reasons

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for  making  a confession of this nature.  The  only  reason available  in evidence for affording an occasion to make the confession  is  that the accused used to drive the car of  a Sant  and  as  such,  he used to park his car  in  the  same parking area where the witness was also parking the car.  In our  view this piece of evidence does not inspire confidence as  to  the  credibility of the witness.  The  choice  of  a person  to  confess cannot be effected just like  that.   In this  context  strong reliance was also placed by  the  High Court  on  the decision of this Court in the case of  Makhan Singh  v.   State of Punjab (AIR 1988 SC 1705).  This  Court while  dealing  with  more  or  less  similar  situation  in paragraph 11 observed:-

     "On  10th  August, 1985 FIR was lodged by Nihal  Singh (PW2) and on 13.8.1985 the appellant went to Amrik Singh (PW 3) to make an extra judicial confession.  Amrik Singh (PW 3) to  make  an extra- judicial confession.  Amrik  Singh  says that the appellant told him that as the police was after him he  had come and confessed the fact so that he might not  be unnecessarily  harassed.  There is nothing to indicate  that this Amrik Singh was a person having some influence with the police  or a person of some status to protect the  appellant from harassment.  In his cross-examination he admits that he is  neither  the Lambardar or Sarpanch nor a person  who  is frequently  visiting the police station.  He further  admits that  when he produced the appellant there was a crowd of 10 to  12  persons.  There is no other  corroborative  evidence about the extra-judicial confession.  As rightly conceded by the  learned  counsel  for  the  State  that  extra-judicial confession is a very weak piece of evidence and is hardly of any  consequence.   The council, however, mainly  relied  on motive,  the evidence of last seen, the evidence of recovery of  dead  bodies  and the conduct of the  appellant  in  not making a report about the missing father and son."

     The confession in the normal course of events are made to  avoid harassment by the police and to a person who could otherwise  protect  the accused against such  a  harassment. The  records in the present appeal do not reflect any one of these  aspects.   As  such it is difficult to point  to  the accused  with  the  crime  on  the  basis  of  the  evidence available in this case.  The incident did take place on 18th November,  1989 and the body was recovered on 19th November. The  extra-judicial confession of the accused as regards his involvement  in  the crime is said to have been effected  to Jaspal Singh PW 7 on December 7, 1989 - thus a delay of more than  20 days without any explanation whatsoever.  The delay in  recording  extra-judicial  confession  before  a  person wholly  unconnected  with the police is always a  matter  of great  suspect.   In  our view the High Court was  right  in rejecting  the  confessional statement.  In view of want  of sufficient circumstances, we record our concurrence with the findings  of  the  High Court that the  charge  against  the respondent  has not been proved beyond all reasonable  doubt and  his  conviction  therefore cannot  be  sustained.   The appeal is hence dismissed.