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PETITIONER: WARIYAM SINGH & ORS.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT19/09/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) NANAVATI G.T. (J)

CITATION:  1996 AIR  305            1995 SCC  (6) 458  JT 1995 (7)   117        1995 SCALE  (5)604

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  under Section  19  of  the  Terrorist  and Disruptive Activities  (Prevention) Act,  1987,  hereinafter referred to  as TADA, is directed against the judgment dated 10th January,  1994 passed by the Designated Judge (Sessions Judge), Pilibhit  in Special  Case No.17  of  1992.  By  the impugned Judgment  the appellants  have been convicted under Section 120B  of  the  Indian  Penal  Code  and  also  under Sections 120B  IPC, a sentence of life imprisonment has been passed against  each of  the accused  and sentence  of  life imprisonment has  also  been  passed  against  each  of  the accused under  Section 3  of TADA.  For  the  offence  under Section 4 of TADA, each of the accused has been sentenced to suffer five  years rigorous  imprisonment and also a fine of Rs.1,000/-, in  default, one  year’s rigorous  imprisonment. The said  special case  No. 17/92 was instituted against the appellants  after  obtaining  necessary  sanction  from  the competent authority  in respect  of an  incident  which  had taken place on 17.4.1990 at 10 P.M.      The prosecution  case in  short is  that PW  1  Kashmir Singh, his  son Balkar  and other members of the family were sitting in  their house  and the three accused together with Balwinder  Singh,  since  deceased,  came  there  and  after accusing Kashmir  Singh  and  members  of  the  family,  the accused opened fire hitting Kashmir Singh on his leg. Balkar Singh the  son of  Kashmir Singh  and other  members of  the family present  there also  opened fire  and  the  said  son chased the accused upto 100-150 yards by flashing torch. But the said  Balkar Singh  was  hit  by  the  bullet  fired  by Balwinder Singh  which caused his death. Later on, Balwinder Singh  also  died  in  an  encounter  with  police  and  the remaining  three   accused  were   prosecuted   before   the Designated Court.      According  to  the  prosecution  case,  all  the  three accused   made    confessional   statements    before    the

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Superintendent of  police and  such confessional  statements are Exhibits  26,27 and  28. The  Superintendent  of  Police deposed as  PW 8 and he specifically stated that the accused made voluntary  statements; they  were given time to reflect before making  such voluntary  statements and it was ensured by him  when there  was no  other person  present when  such confessional statements  were made.  The accused  were  also warned by the Superintendent of Police that the confessional statements would  be used  against them  and they  might  be convicted for such confessional statements.      P.W. 1  Kashmir Singh,  who himself  was injured in the incident, stated  in his  deposition that  put of  the three persons who  came with  arms to  his house he knew Balwinder Singh, since  deceased, and  one of  the  appellants  Bassan Singh. The  said persons  accompanied by another came to his house and  threatened him by saying that they would kill him and the  members of  the family.  It was  stated by the said Kashmir Singh  that  the  said  persons  became  angry  with Kashmir Singh  and the  members of his family because of the recovery of  arms and  ammunition by the police on the basis of the  statement made  by  the  said  Kashmir  Singh  on  a previous occasion.  He has also stated that when the accused fired shots  with the  rifles carried  by them he was hit on his leg  and in  defence. Subedar and the said Kashmir Singh also fired  with a SBBL gun and Guljar Singh also fired with a DBBL  gun. But  when Balkar  Singh chased  the accused  by flashing his  torch, he sustained bullet injury fired by the Balwinder Singh causing his death on the spot.      It may  be stated  here that  the F.I.R.  was lodged in this case  within 1  1/2 hours of the incident in the police station which  was  4  1/2  Kms,  away  from  the  incident. Excepting Kashmir  Singh, other  witnesses examined  in this case in support of prosecution case are police personnel. In the statement  under Section  313 of  the Code  of  Criminal Procedure, the  accused  denied  the  prosecution  case.  No witness, however,  was examined  on behalf  of  any  of  the accused. It  transpires from  the cross-examination that the accused tried  to make  out a  case  that  the  confessional statements were  manufactured on  pieces of  papers in which the police had taken thumb impression of the said accused.      The learned  designated court,  after  considering  the evidences adduced in the case and materials on record, inter alia, came  to the  finding that the confessional statements had been  voluntarily made  by the  accused and  the case of manufacturing such  confessional statements  as sought to be made cannot  be accepted.  On a finding that the prosecution case was proved on the basis of the evidences adduced in the case, the learned Designated Court convicted the accused and passed the order of sentence as indicated hereinbefore.      Mr. Siddiqui,  the learned  counsel appearing  for  the appellants has  contended that  the confessional  statements had not  been sent  to  the  Chief  Judicial  Magistrate  in accordance with  Rule 15  of the  Terrorist  and  Disruptive Activities (Prevention)  Rules, 1987.  It may be stated here that the said confessional statements had been sent directly to the designated courts. PW 8 Superintendent of Police, who had recorded the confessional statement, has deposed that he sent the  confessional statements  on the very same day when the confessional  statements were  recorded  by  him  to  be despatched to  the Designated  Court.  It  is  also  not  in dispute such  confessional statements were promptly received by the designated court.      Mr.  Siddiqui  has  submitted  that  to  safeguard  any tampering with the confessional statements the rule provides that such confessional statements shall be sent to the Chief

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Judicial Magistrate or to the Chief Metropolitan Magistrate, as the  case may  be, and  such Magistrate, in his turn will send such confessional statement to the concerned designated court. He  has submitted  that the  requirement  of  sending confessional statements  recorded by  the police  officer to the C.J.M.  being mandatory,  the confessional statement can not  be   looked  into  by  the  designated  court  for  non compliance with the said mandatory provision.      It, however,  appears to us that the provisions in Rule 15 of  the said  TADA Rules  relating to the procedure to be followed for sending the confessional statement to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate for being transmitted  to the  concerned designated court is not mandatory but  directory. What  is  mandatory  is  that  the report must  be sent  to the  designated court. Accordingly, merely for  not sending  the said  confessional statement to the Chief Judicial Magistrate for onward transmission to the designated court,  the said  confessional statement need not be scrapped  on the  score of  incurable illegality  for not following the  mandatory provisions  of Rule  15 of the said Rules.      In the instant case, such confessional statement had in fact been  directly sent to the designated court immediately after  recording  the  same.  In  the  aforesaid  facts,  no prejudice has been caused to the accused for not sending the same  to   the  Chief   Judicial   Magistrate   for   onward transmission to the designated court. The lapse committed in not  sending   the  said   confessional  statements  to  the designated court  through the  Chief Judicial  Magistrate is only a  procedural irregularity  which has  not vitiated the trial.      Mr.Siddiqui has  also contended  that  in  the  instant case, no  specific question was pointedly put to the accused under Section  313 Cr.  P.C. drawing  the attention  of  the accused that  they had  made confessional  statements, which were being  relied on  by the  prosecution. According to him such omission  on the  part of  the learned Designated Court has caused  a serious  prejudice to  the appellants  thereby vitiating the  trial. He  has submitted  that as a matter of fact  the   court  has   relied  on  the  said  confessional statements for convicting the appellants.      In our  view, the  contention of Mr. Siddiqui cannot be accepted. It  appears that while examining the accused under Section 313  Cr.P.C. the  entire gist  of  the  confessional statements were  specifically put  to the accused and it was also pointed  put to  them that such confessional statements had been  proved by  the Superintendent  of  Police  in  his deposition. Therefore,  the contention that the attention of the accused  to such  confessional statements  had not  been drawn at  the time  of  examination  of  the  accused  under Section 313  Cr.P.C. is factually incorrect. In that view of the matter,  the decisions  cited by the learned counsel for the purpose  of showing  that failure  of the  court in  not drawing the  attention of  the accused  about  incriminating materials while  examining him  under  Section  313  Cr.P.C. causes serious prejudice to the accused vitiating the trial, have no application in this case.      It has  also been  contended by the learned counsel for the appellants  that Kashmir  Singh is an interested witness being  the  father  of  the  deceased.  In  the  absence  of corroborative statements  from other  independent witnesses, no reliance  should be  placed on the deposition of the said Kashmir Singh. In our view, such contention, in the facts of this case,  should not be accepted. Kashmir Singh himself is an injured  witness and  we have  not noted any infirmity in

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his deposition.  The learned  Designated Court  has  rightly indicated that  it is  the quality  and intrinsic worth of a evidence is  to be considered and deposition by the relation or an  interested party need not to be discarded as a matter of course.  A relation  or  an  interested  witness  is  not incompetent to  depose in  a  criminal  case  out  rules  of prudence dictate  that deposition  of such witness should be weighed  with   care  and   caution  before  accepting  such deposition. We may also indicate here that the deposition of Kashmir Singh gets ample corroboration from the confessional statements of  the accused. The very fact that Kashmir Singh sustained injuries  in the  incident in question also points out that  he was  present at  the place  of  occurrence  and therefore, had occasions to notice the incident.      Mr. Siddiqui  has also  submitted that the confessional statements were  recorded in  Hindi but  the accused did not know Hindi.  Hence,  they  could  not  understand  what  was recorded as  their alleged  confessional statements. Darshan Singh  made  a  petition  before  the  Designated  Court  on 23.10.1991 stating therein that except the Punjabi language, he could  not follow any other language. Such application of Darshan  Singh   was,  however,   rejected  by  the  learned Designated Court  by holding that all the accused understood Hindi. We  may also  indicate  hers  that  the  confessional statements were  recorded on  14.5.1990.  But  none  of  the accused  raised   any   objection   against   recording   of confessional statements  in Hindi  by contending  that  they could  not   follow  what   had  been   recorded  as   their confessional statements.  It  is  only  on  23.10.1991  i.e. almost  after  1  1/2  years  after  recording  confessional statements only  one of the accused namely Darshan made such application before  the designated  court and  the same  was rejected by the designated court by holding that the accused could follow  Hindi. As  a matter  of fact,  various lengthy questions were  put to the accused under Section 313 Cr.P.C. and such  questions were  answered by  them and  none of the accused  expressed   any  difficulty  in  understanding  the questions and  answering them.  Hence the said contention of Mr. Siddiqui cannot be accepted.      Mr. Siddiqui  has also  submitted that  as the  accused came out  with a  case that the confessional statements were fabricated,  the  court  should  not  have  relied  on  such confessional statements  in the absence of corroboration. In this connection,  he has  relied on a decision of this Court in Pyarelal Bhargava versus The State of Rajasthan (AIR 1963 SC 1094).  In that case, this Court considered the case of a retracted confession and it has been indicated by this Court that the  retracted confession  may form  the legal basis of conviction if  the court  is satisfied  that it was true and was voluntarily  made. It  has however been indicated in the said decision that court shall not base a conviction on such retracted confession  without corroboration.  This Court has also indicated that though it is not a rule of law, but such course is  followed as  a rule  of prudence.  It has however been indicated  specifically in  the said  decision that  it cannot even  be laid  down as an inflexible rule of practice or prudence  that under  no circumstances  such a conviction can be  made without  corroboration, for  a court  may, in a particular case,  be convinced  of the  absolute truth  of a confession   and   prepared   to   act   upon   it   without corroboration; but  it may be laid down as a general rule of practice that  it is  unsafe to rely upon a confession, much less  on   a  retracted  confession,  unless  the  court  is satisfied  that   the  retracted   confession  is  true  and voluntarily made  and  has  been  corroborated  in  material

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particulars.      In the  instant  case,  the  confessions  made  by  the accused have  been proved  by the  Superintendent of Police. Who recorded the same, being examined as PW 8. A part of the confessional  statement  also  stands  corroborated  by  the deposition of Kashmir Singh. Accordingly, we do not find any difficulty in  rejecting  the  said  confessional  statement simply  because   it  was   alleged  by   the  accused  that confessional  statements   were  fabricated.   We  may  also indicate here  that the  said allegation  of fabrication  is without any substance and cannot be accepted.      In the  aforesaid facts,  we do  not find any reason to take a  contrary view.  The appeal  therefore, fails  and is dismissed.      The appellant  No. 3  has been  released or bail during the pendency  of the appeal. In view of the dismissal of the appeal, he  should be  taken into  custody to  serve out the sentence.