Criminal Appeal No 386 of 1978
From the Judgment and Order dated 1920th July 1977 of the Himachal Pradesh High Court in Crl
A No 46 of 1976
Rakesh Luthra NN Bhatt LR Singh NP and lrshad Ahmad for the Appellant
KG Bhagat NK Sharma and Ms A Subhashini NP for the Respondent
The Judgment of the Court was delivered by K RAMASWAMY J
The appellant KC Sharma alongwith two others was charged for the offence punishable under sections 302 and 201 read with section 34 of the Indian Penal Code for causing the death and concealing the dead body of Joginder Singh
The Additional Sessions Judge Kangra Division at Dharamsala convicted all the accused under section 30234 and directed them to undergo imprisonment for life and to pay a fine of Rs500 and also to the sentence of two years rigor ous imprisonment and fine of Rs500 for the offence of section 20134 in default of payment of fine for a further period of three months rigorous imprisonment
All the sentences were directed to run concurrently
On appeal the Division Bench of the High Court of Himachal Pradesh by judgment dated July 20 1977 acquitted accused 2 and 3 of the offence under section 302 IPC and confirmed the conviction and sentence of the appellant and set aside the sentence of fine
The leave having been granted by this Court this appeal has been filed
The narrative of prosecution case runs thus The de ceased Joginder Singh resident of Jogipura
Kangra on November 10 1974
while going to Pathankot with some currency notes in his possession went on his way to Jassur Village to meet his friend one Bala Pahalwan
On enquiry the latter was said to be absent in the village
The deceased came in contact with the appellant and both went to the Dhaba of PW 7 Joginder Singh Paul to have some drink but PW 7 did not allow them to take liquor inside the Dhaba
Both of them sat in the back side of the Dhaba to have drink
PW 8 Tamil Singh and one Jai Onkar were also invited to have drink with them
All of them together consumed the liquor and ate meat
The deceased paid the price of the liquor and meat and when he had become tipsy PW 8 suggest ed to take the deceased to Pathankot or to keep him at Dhaba 110 Beli where at he could make necessary arrangements for their stay but the appellant insisted upon taking the deceased to Kangra
Thereafter the appellant and the deceased boarded the Truck No HPK 4179 driven by A 2 Madho Ram Driver and A 3 Bihari Lal Cleaner
PW 8 and the other left the place
The truck was loaded with the bricks and the appel lant and the deceased sat on the bricks in the body of the truck and went towards Kangra side
PW 12 the Octroi Clerk at Nagpur states that the truck driven by A 2 went towards Baijnath
PW 13
Burfiram Chowkidar at Ichhi Marketing Co op
Society spoke that he saw the truck driven by A 2 and A 3 and got unloaded the bricks at the godown of the said Society at about mid night but the deceased was not seen there
It is further the case of the prosecution that while the deceased or accused were going in the truck there ensued a quarrel between them over some money matter and the appellant took iron screw driver and gave blows on the head and face of the deceased
Consequently the deceased was half dead
He was thrown out of the truck but finding him not dead put him in the truck and all the accused severed the head with an iron saw and burried the trunk under stones in the outskirts of the village Dhadhu and carried the head with them in the truck
The head was hidden at a place between Guggal and Chaitru on the Kachcha road branching off the main road to the village Ichhi
On November 13 1974 PW 6 Karrudi Ram the Chowkidar of Mauza Bandi during twilight had gone to answer nature s call at the outskirts of the village Dhadhu and noticed the blood stains and a torn pant near the stones
On further probe the hand of the deceased was seen projecting from the stones and he noticed the dead body
He went and reported to Bidhu Ram PW 10
the Pradhan of the village and two others
All of them went to the spot noticed the dead body
10 kept a watch during the night
On November 14 1974 at about 700 or 800 am PW 6 went to the Police Station and lodged the com plaint
PW 26 the ASI recorded and issued the First Information Report and proceeded to the spot
He recovered the articles on and near the dead body under PW 11 Panch nama and conducted inquest and sent the dead body for post mortem
The Doctor conducted autopsy
On November 15
1974 the parents of the deceased came to the Police Station and identified the clothes of the deceased
On November 16 1974 PW 27 the Sub Inspector of the Police took over the investigation
He contacted one Kuldip Singh a Conductor in Kapila Transport Company from whom he came to know that on November 10 1974 the deceased and the appellant were seen consuming liquor at Jassur
Thereafter PW 27 and PW 10 Bidhu Ram Pradhan of Guggal Panchayat went to the appel lant s village Sahaura and was sent for the appellant
The appel 111 lant on coming to him was found to have shaved off his moustaches
PW 27 had enquired as to why he had removed his moustoches upon which the appellant was claimed to have replied that he had removed his moustaches due to demise of his maternal uncle
PW 10 and PW 27 took the appellant to Jassur for identification purposes
The appellant pointed out PW 7 the owner of the Dhaba and the latter identified the appellant as one seen in the company of the deceased and having consumed liquor
Equally of PW 8
Thereafter the appellant was taken back to PW
10 s village and PW
27 left the village for further investigation
On enquiry made by PW 10 in the shop of one Mangath Ram and in the company of one Raghunath to reveal the truth to him the appellant was stated to have requested PW 10 whether he could save him if he would tell the truth
Thereupon PW 10 stated that he could not save him but if he would speak the truth he would help himself
Thereupon the appellant was stated to have made extra judicial confession giving out the details of consuming liquor with the deceased their going together on the truck the quarrel that ensued between them his hitting the deceased with the screw driver throwing the dead body thinking that he died on the road realising that he was not dead lifting him and putting him in the body of the truck and all the accused cutting the head of the deceased with the saw blade and burrying the trunk under the stones and hiding the head at different place and thereby they had committed the crime
10 gave this information to PW 27 on the next day namely November 25 1974
Thereon all the accused were arrested
On November 27 1974 the Driver A 2 was stated to have made a statement under section 27 of the Evidence Act
exhibit PW 9A leading to discovery of the hidden head at a place between Guggal and Chaitru
This statement had been made in the presence of PW 9 and another and the severed head was recovered under Memo exhibit PW 9B This was in the presence of PW 10 and another
The head was sent to the Doctor for post mortem examination
The Doctor verified and found it to be correct and the doctor corelated the trunk of the dead body and the head belonging to the de ceased
On November 30 1974 pursuant to statement made by the appellant and A 3 under exhibit PW
16B leading to recover one iron saw without handle and a piece of cloth wrapped to one of its sides was recovered from a bush near Kathman Mor and PW 10 and another are Panch witnesses and found the saw blade contained with blood stains and a piece of cloth of torn pant
They were recovered under exhibit PW 16C
The clothes of the appellant were also claimed to have been recovered from his house under exhibit PW
16H which was stained with blood and the same were recovered in the presence of PW 16 The Serologist found the blood stains disintegrated on all the 112 items
On the basis of this evidence the prosecution laid the chargesheet against all the accused
As stated earlier the appellant now stands convicted and sentenced for the offences under sections 302 and 201 IPC The two others did not file appeal against their convict under section 201 IPC
The entire prosecution case rested on circumstantial evidence
As regards the appellant the circumstances relied on the prosecution are three namelyi the appellant and the deceased were last seen together by PW 7 the owner of the liquor shop Dhaba and PW 8 the companion who had liquor with the deceased and the appellant ii the extra judicial confession made to PW 10 the Pradhan of Guggal Gram Panchayat and iii the discovery of saw blade pursu ant to the statement made by the appellant and A 3 under section 27 of the Evidence Act
The question therefore is whether the prosecution proved guilt of the appellant beyond all reasonable doubt
In a case of circumstantial evidence
all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established
All the facts so estab lished should be consistent only with the hypothesis of the guilt of the accused
The proved circumstances should be of a conclusive nature and definite tendency unerringly point ing towards the guilt of the accused
They should be such as to exclude every hypothesis but the one proposed to be proved
The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt
It is not necessary that each circumstances by itself be conclusive but cumula tively must form unbroken chain of events leading to the proof of the guilt of the accused
If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis
In assessing the evidence imaginary possibilities have no role to play
What is to be considered are ordinary human probabilities
In other words when there is no direct wit ness to the commission of murder and the case rests entirely on circumstantial evidence the circumstances relied on must be fully established
The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the inno cence of the accused
If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken the accused is entitled to the benefit of the doubt
113 In assessing the evidence to find these principles
it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them
on the other
In regard to the proof of basic or primary facts
the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts there is no scope for the application of the doctrine of benefit of doubt
The court has to consider the evidence and decide whether the evidence proves a particular fact or not
Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt
There is a long distance between may be true and must be true
The prosecution has to travel all the way to establish fully the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclu sive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution
In other words
there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all probability the act must have been done by the accused and the accused alone
The question emerges therefore is whether the prosecu tion has established the three circumstantial evidence heavily banked upon by the prosecution in proof of the guilt of the appellant
The first circumstance is that the de ceased and the appellant were last seen together by PW 7 and PW 8
From the evidence it is clear that there is no prior intimacy of the appellant and the deceased
They happened to meet per chance
Equally from the evidence it is clear that PW 7 the liquor shop owner and PW 8 who had liquor with the appellant and the deceased are also absolute strangers to the deceased and the appellant
Admittedly there is no identification parade conducted by the prosecu tion tO identify the appellant by PW 7 or PW 8
The appel lant was stated to have pointed out to PW 7 as the one that sold the liquor and PW 8 consumed it with him and the de ceased
Therefore it is not reasonably possible to accept the testimony of PW 7 and PW 8 when they professed that they have seen the appellant and the deceased together consuming the liquor
It is highly artificial and appears on its face a make believe story
114 The next piece of evidence is the alleged extra judicial confession made by the appellant to PW 10
An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity
But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Section 25 and 26 of the Evidence Act
Therefore the court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or colateral consideration or circumvention of the law suggest ing that it may not be true one
For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made the time and place of making it the circumstances in which it was made and finally the actual words used by the accused
Extra judicial confession if found to be voluntary can be relied upon by the court alongwith other evidence on record
Therefore even the extra judicial confession will also have to be proved like any other fact
The value of the evidence as to the confes sion depends upon the verocity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused
Some times it may not be possible to the witness to reproduce the actual words in which the confession was made
For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him
Admittedly PW
10 and the appellant do not belong to the same village
From the narrative of the prosecution story it is clear that PW 27 and PW 10 came together and appre hended the appellant from his village and was taken to Jassur for identification
After he was identified by PW 7 and PW 8 it was stated that he was brought back to Gaggal village of PW 10 and was kept in his company and PW 27 left for further investigation
Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence
Section 26 provides that no confession made by any person while he is under custody of the police officer unless it be made in the immediate presence of a magistrate shall be proved as against such person
Therefore the confession made by an accused person to a police officer is irrelevant by operation of Section 25 and it shall be proved against the appellant
Likewise the confession made by the appellant while he is in the custody of the police shall not 115 be proved against the appellant unless it is made in the immediate presence of the magistrate by operation of Sec tion 26 thereof
Admittedly the appellant did not make any confession in the presence of the magistrate
The question therefore is whether the appellant made the extra judicial confession while he was in the police custody
It is incred ible to believe that the police officer PW 27 after having got identified the appellant by PW 7 and PW 8 as the one last seen the deceased in his company would have left the appellant without taking him into custody
It is obvious that with a view to avoid the rigour of Section 25 and 26 PW 27 created an artificial scenerio of his leaving for further investigation and kept the appellant in the custody of PW 10 the Pradhan to make an extra judicial confession
Nothing prevented PW 27 to take the appellant to a Judicial Magistrate and had his confession recorded as provided under section 164 of the Crl
PC which possesses great probative value and affords an unerring assurance to the court
It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntarily confession to PW 10 and that too sitting in a hotel
The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of PW 10
Therefore it would be legitimate to conclude that the appellant was taken into the police custo dy and while the accused was in the custody the extra judicial confession was obtained through PW 10 who accommo dated the prosecution
Thereby we can safely reach an irre sistible conclusion that the alleged extra judicial confes sion statement was made while the appellant was in the police custody
It is well settled law that Sections 25 and 26 shall be construed strictly
Therefore by operation of Section 26 of the Evidence Act the confession made by the appellant to PW 10 while he was in the custody of the police officer PW 27 shall not be proved against the appellant
In this view it is unnecessary to go into the voluntary nature of the confession etc
The third circumstance relied on is the statement said to have been made by the appellant under section 27 of the Evidence Act leading to discovery of the consequential information namely saw blade is not of a conclusive nature connecting the appellant with the crime
The recover ies were long after the arrest of the appellant
The blood stains on all the articles were disintegrated
So it was not possible to find whether it is human blood or not
Moreover from the prosecution evidence it is clear that the deceased himself was an accused in an earlier murder case and it is obvious that he had enemies at his back
Absolutely no motive to commit crime was attributed to the appellant
116 No doubt the appellant and two others have been charged for an offence under section 302 and 201 read with Section 34 namely common intention to commit the offences and A 2 and A 3 were acquitted of the charge under section 30234 IPC and that there is no independent charge under section 302 IPC
If from the evidence it is established that any one of the accused have committed the crime individual ly though the other accused were acquitted even without any independent charge under section 302 the individual accused would be convicted under section 302 IPC sim plicitor
The omission to frame an independent charge under section 302 IPC does not vitiate the conviction and sentence under section 302 IPC Thus considered we find that the prosecution has utterly failed to prove any one of the three circumstances against the appellant and the chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary fact all the three circumstances much less beyond all reasonable doubt bringing home the guilt to the accused and to prove that the accused alone had committed the crime
Therefore the appellant is entitled to the benefit of doubt
The conviction and sentence of the appellant for the offences under section 302 or Section 201 of IPC are set aside
The appellant is on bail granted by this Court after nine years  incarceration
The bail bond shall stand can celled
He shall remain at liberty unless he is required in any other case
Before parting with the case it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appel lant a peon the driver and the cleaner for ride and tram pled upon their fundamental personal liberty and lugged them in the capital offence punishable under section 302
IPC by freely fabricating evidence against the innocent
Un doubtedly
heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task
At the same time the liberty of a citizen is a pre cious one guaranteed by article 3 of Universal Declaration of Human Rights and also article 21 of the Constitution of India and its deprivation shall be only in accordance with law
The accused has the fundamental right to defend himself under article 10 of Universal Declaration of Human Rights
The right to defence includes right to effective and meaningful defence at the trial
The poor accused cannot defend effec tively and adequately
Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an inbuilt right to liberty and life envisaged under articles 117 19 and 21 of the Constitution
Weaker the person accused of an offence greater the caution and higher the responsi bility of the law enforcement agencies
Before accusing an innocent person of the commission of a grave crime like the one punishable under section 302 IPC an honest sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was re sponsible to commit the offence
Indulging in free fabrica tion of the record is a deplorable conduct on the part of an investigating officer which under mines the public confi dence reposed in the investigating agency
Therefore great er care and circumspection are needed by the investigating agency in this regard
It is time that the investigating agencies evolve new and scientific investigating methods taking aid of rapid scientific development in the field of investigation
It is also the duty of the State ie Cen tral or State Government to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investi gation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution
Though article 39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused he would be meted out with unequal defence if as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him
It is high time that senior counsel practicing in the court con cerned volunteer to defend such indigent accused as a part of their professional duty
If these remedial steps are taken and an honest and objective investigation is done it will enhance a sense of confidence of the public in the investigating agency
We fervently hope and trust that concerned authorities and Senior Advocates would take appropriate steps in this regard
The appeal is accordingly allowed
PSS Appeal allowed


Summary:
The respondent Corporation prepared a panel for the post of Insurance Inspector for filling up the direct recruit quota on the basis of written test and interview
In the absence of prescribed marks for the interview 40 was made as basic limit for selection
The unsuccessful candidates challenged their rejection before the Central Administrative Tribunal contending that the selection based on 40 marks in the interview was unjus tified
Petitions were also filed by the successful candi dates seeking directions to the respondent Corporation to issue appointments pursuant to the panel prepared
The tribunal directed that a fresh select list be pre pared for filling up the remaining vacancies on the basis of the total marks obtained in the written examination and interview in disregard of the qualifying marks of the interview
Hence this appeal
The successful candidates also filed a Writ Petition contending that they were entitled to appointment order since there was no indication of the expiry of the panel
Allowing the appeal in part and disposing of the matter this Court 120 HELD 1
Interview has its own place in the matter of the selection process and the choice of the candidate
Once this is recognised it would be appropriate to require every candidate to pass the interview test and for that purpose there should be a basic limit provided
In the absence of any prescription of qualifying marks for the interview test the prescription of 40 as applicable for the written exami nation seems to be reasonable
123C D Rajesh Sood  Or3 
vs Director General Employees State Insurance Corporation  Anr decided on August 7 1985 approved
50 of the vacancies existing upto 31st December 1989 relatable to the one third quota should be filled up out of the penal after giving credit to appointments already made
The remaining vacancies should be filled up by holding of a fresh recruitment examination
The scheme intended for recruitment should be on the basis of an examination com prising of written test and interview
In the oral examina tion the pass mark shall be 40 and 40 pass marks shall be insisted separately for the written as also the oral test for qualifying in the selection
123B D E