HIGH COURT OF UTTARANCHAL, AT NAINITAL CRIMINAL APPEAL NO.285 of 2007 Laxman Singh Dharmshatru S/o late Khushal Singh R/o village Darkot, P.S. Munsyari District Pithoragarh ………Appellant Versus State of Uttarakhand ……..Respondent Mrs. Pushpa Joshi, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. for the respondent-State. Hon’ble J.C.S. Rawat, J. This criminal appeal has been preferred against the judgment and order dated 20.07.2007 passed by the then Sessions Judge, Pithoragarh in S.T. No.55/2005, whereby the accused/appellant was convicted and sentenced to undergo R.I. for a period of five years and a fine of Rs.10,000/- under Section 304 IPC. It was further directed that in default of payment of fine, the accused/appellant would further undergo imprisonment for one year. 2. Brief facts of the prosecution case are that on 27.09.2005 the first information report was submitted by Devendra Singh Pangati PW3 before the District Magistrate, Pithoragarh alleging therein that on 11.09.2005, his brother Pratiman Singh Pangati had gone to see the fair of “Nanda-Ashtami” in village Suring, but he did not return till night. In the morning of 12.09.2005, he has received information that his brother was lying dead under suspicious condition in village Suring. On the basis of the aforesaid report, a Chick FIR was prepared and necessary entries were made in the general diary. The police visited the spot and sent the dead body for postmortem. The Investigating Officer prepared the site plan and recorded the 2 statement of the witnesses. After completing the investigation, the Investigating Officer submitted the chargesheet before the court. 3. After submission of chargesheet the accused/appellant was committed to the Court of Sessions for trial and the trial court framed charges against the accused person. The accused person denied charges levelled against him and claimed the trial. 4. The prosecution in order to support its case examined as many as eight witnesses. Navin Singh PW1 alongwith the deceased went to see the festival of “Nanda-Ashtami”. He is the witness to the effect that the deceased was lastly seen alive in the company of the accused/appellant in the late hours of 11.09.2005. Navin Singh PW1 is also the witness before whom the accused/appellant made an extra-judicial confession. Dr. Anil Kumar Garg PW2 is the Medical Officer, who conducted the postmortem on the dead body of the deceased. Devendra Singh Pangati PW3, brother of the deceased is the informant of the case. Laxman Singh Pangati PW4 is the witness in whose presence the recovery of one shoe, one black pant and one violet of the deceased were made from the place of the incident. Constable Kishan Singh PW5 and S.I. Kundan Singh PW6 are the formal witnesses of the police. PW7 is the Judicial Magistrate before whom the statement of the accused/appellant was recorded under section 164 Cr.P.C. Pratap Singh Chauhan PW8 is the Investigating Officer of this case and after completing the investigation he submitted the chargesheet against the accused/appellant. 3 5. In the statement recorded u/s 313 Cr.P.C. the accused persons had denied the prosecution case and stated that he has been falsely implicated in this case. The accused/appellant has also adduced the evidence of Bhupal Singh DW1 in support of his defence. 6. The learned trial court after appraisal of the evidence on record, convicted and sentenced the accused/appellant as mentioned above. 7. I have heard Mrs. Pushpa Joshi, learned counsel for the accused/appellant; Mr. Amit Bhatt, Addl. G.A. for the respondent/State and perused the evidence on record. 8. At the outset, it needs to be mentioned that it is not disputed that the deceased Pratiman Singh Pangti died on account of the injuries sustained by him on 11/09/2005 at about 9:00 or 9:30 p.m. at the spot as pointed out by the prosecution. The prosecution in support of its case adduced the evidence of Dr. Anil Kumar Garg PW2 who has stated in his evidence that he conducted the autopsy on the body of the deceased on 13/09/2005 at 5:15 p.m. and found the following injuries on the person of the deceased:- 1. Lacerated wound right supra orbital region about 5 x 1cm. 2. Fracture mandible (angle) lt. Side. 3. Abrasion 10 cm. x 10 cm. present in left lower part of chest antero laterally. 4. Contusion (large) over Rt. side of face. 5. Abrasion present whole back of chest. Supra Scapular area is reared. Fracture right side clavicle. 4 The doctor has opined that the cause of the death of the deceased was neurogenic shock due to ante mortem injuries. 9. Thus, it is established by the medical evidence that the deceased died on account of the injuries sustained by him on the time and date as alleged by the prosecution. The defence has not disputed the time and place of the death of the deceased. Defence has taken a case by way of suggestion that the deceased took liquor and he fell down from the rock and thereafter died due to such injuries sustained by him. 10. Now, I have to see as to whether the accused/appellant caused the injuries on the person of the deceased and thereafter thrown him from the rock as alleged by the prosecution. There is no direct evidence in this case and the case rests on the circumstantial evidence. The prosecution in support of its case relied upon three circumstances for showing the participation of the accused/appellant in the commission of the offence. 11. The first circumstance which has been relied by the prosecution against the accused/appellant was the last seen evidence of accused in the company of the deceased on the date of the incident. In support of its first circumstance, the prosecution has adduced the evidence of Navin Singh PW1 who has stated in his evidence that on 11th September, 2005, the accused/appellant, deceased Pratiman Singh Pangti, Ganesh Singh and he went to village Suringgaon to see the festival of Nanda-Ashtami. At about 5:00 to 5:30 p.m. all of them went to the houses of their relatives for taking meals. Firstly, they went in the house of Nain Singh Martolia in village Suringaon. 5 Thereafter, they went to Sasural of the brother of the accused/appellant. He has further stated in his evidence that there was a scuffle in between Ganesh Singh and Kripal Singh. The deceased intervened in the said scuffle and the accused/appellant took favour of Kripal Singh in the said scuffle. Thereafter, all of them started to go to the house of one Pratap Singh. When they were on their way, Guddu @ Ganesh Singh started vomiting on the way. They left him there and went to the house of Pratap Singh but Pratap Singh was not available in his house so they returned from there. When they came near the place where they left Guddua @ Ganesha, they did not find him there. Thereafter, they made a thorough search of Guddu @ Ganesh Singh but they could not find him. As it was becoming late night, Navin Singh-PW1 desired to return to his home. The accused/appellant Laxman Singh said to him that there was no hurry to him to go to home. On this, Navin Singh PW1 left the accused/appellant and the deceased Pratiman Singh Pangti there and returned to his house. During the cross examination, Navin Singh PW1 has further stated that all of them took liquor in three-four places. On the next date, it was discovered that the deceased had died due to fall from the rock. The learned counsel for the accused/appellant contended that the evidence of Navin Singh PW1 regarding leaving the accused/appellant in the company of the deceased is not credible and cogent. The learned Addl. G.A. supported the findings recorded by the trial court. Navin Singh PW1 has stated in his cross examination as under:- “?kVuk ds fnu ds ckn esjk c;ku djhc 27&9&05 dks 'kk;n esjk c;ku fy;k FkkA equL;kjh Fkkus esa 27&9&05 dks esjk o;ku fy;k FkkA eq>s njksxk th us Mjk /kedk dj ;g dgk Fkk ;fn vfHk;qDr ugha feyrk rks rqe rhuksa dks vfHk;qDr cuk nsxsaA” 6 12. Thus, the above fact clearly reveals that the said witness was not interrogated on 27.09.2005 and he was threatened by the Investigating Officer if the accused would not be traced or the involvement of any person is not revealed by the investigation, he would implicate all the three persons including Navin Singh PW1 in this case. In the light of the above fact, the entire evidence has to be judged in this case. 13. The incident occurred on 11.09.2005. Navin Singh PW1 has categorically stated in his cross examination that the police reached at the spot on 12.09.2005 where the dead body was lying. The police also prepared the inquest report at the spot on 13/09/2005 and sent the dead body for post-mortem. The police inquired about the incident at the time of the panchnama. The prosecution evidence clearly reveals that Navin Singh PW1 was present at the time of panchnama. He has also admitted that the police had also inquired about the cause of the death. Navin Singh PW1 has not stated that he had left the deceased in the company of the accused/appellant on the date and time as stated in his evidence. It is revealed from the evidence that the complainant and Navin Singh PW1 were the resident of village Darkot. If such incident would have occurred and this fact was in the knowledge of Navin Singh PW1, he could have disclosed that he left the deceased and accused/appellant in the evening at village Suring on 11/09/2005. Bhopal Singh DW1 was also produced to show that the accused/appellant had left the place of occurrence and he came to his house alongwith Bhopal Singh DW1. If it was so, Navin Singh PW1 would have either lodged the report to the Patwari or he could have stated this fact to the police at the time of the inquiry or to the family members of the deceased. For the first time he brought this fact on 27/09/2007 after a 7 lapse of 15 days. Thus, the evidence of Navin Singh PW1 is not credible and cogent. The conduct of Navin Singh PW1 also makes his evidence doubtful. 14. The second circumstance that has been relied against the accused/appellant by the prosecution is the extra judicial confession made by the accused/appellant to Navin Singh PW1 in the night of 11th September. Navin Singh PW1 has stated in his evidence that on 11.09.2005 at about 11:00 p.m. someone knocked his door and when he opened the door he found accused/appellant there. The accused/appellant entered into his house. When he asked the reason of coming to his house in the late night, the accused/appellant confessed before him that when he (Navin Singh PW1) left him in the night, there was a quarrel in between accused/appellant and the deceased due to which the deceased sustained the head injuries and died at the spot. The accused/appellant had further stated to him not to disclose this fact to anybody otherwise he would kill him. The extra judicial confession which has been made by the accused/appellant to Navin Singh PW1 is extracted hereunder:- “blds ckn jkf= yxHkx 11 cts esjs njokts [kV[kVk;s rks eSus vUnj ls vkokt nh dkSu gS rks ckgj ls dksbZ ugha cksyk fQj eSaus njoktk [kksyk rks ckgj vfHk;qDr y{e.k flag FkkA fQj ;g esjs vUnj vk x;kA eSaus iwNk fd rw bruh jkr esjs /kj esa D;ksa vk;k rc blus cksyk fd rqEgkjs tkus ds ckn izR;qeu o esjs chp esa gkFkkikbZ gks x;hA ftlls e`rd izR;qeu ds flj esa pksV vk x;h fQj mlus dgk fd ogha ij mldh izR;qeu dh e`R;q gks x;h” 15. Now, it is to be seen as to whether this extra judicial confession inspires confidence or not. When I went through the entire extra judicial confession as extracted above, I find that it did not disclose that the accused/appellant caused the injuries on the head of the deceased. He has only stated that 8 the deceased sustained the head injuries in the said melee. Thus, there is no clear-cut confession that the accused/appellant caused the head injuries to the deceased due to which he died at the spot. Apart from this, the said extra judicial confession was made on 11/09/2005. It was not disclosed to anybody either in the village or to the relatives of the deceased or to the police or to the Patwari. It has been admitted by Navin Singh PW1 in his cross-examination that he did not disclose it to anybody due to threats given to him by the accused/appellant. It is also admitted that he was present at the time of the inquest, though he was not a witness of the inquest. It is a settled position of law that extra judicial confession will have to be proved like any other facts. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. While appreciating the evidence, the court has to see the nature of the circumstances when the extra judicial confession has been made by the accused. It would depend on the nature of the circumstances, the time when the extra judicial confession was made and the credibility of the witnesses who speak to such extra judicial confession. Such a extra judicial confession can be relied upon and conviction can be founded thereon if the evidence about the extra judicial confession comes from the mouth of a witness who appears 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 of 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 9 which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. The requirement of corroboration is a matter of prudence and not an invariable rule of law. In the light of the above proposition of law, the evidence of Navin Singh PW1 has to be judged. Navin Singh PW1 has stated in his cross examination that the police also took him under custody on 27/09/2005 and the police threatened to him if the real culprit is not apprehended in this case, the police would implicate them for the murder of the deceased. The statement of this witness was recorded on 27/09/2005 when the police had given him the said threat. The extra judicial confession was recorded by the police after the threats had already been given to the Navin Singh PW1 when he was in the custody. Thus, it is very much in the evidence that the witness was bias on the date of recording of the statement u/s 161 Cr.P.C. when said extra judicial confession was recorded by the police. This fact may tend to indicate that he may have a motive of attributing the untruthful statement to the accused/appellant. Thus, the extra judicial confession made by the accused/appellant to the witness cannot be termed as credible and cogent. Apart from this, non-disclosure of this fact from 11/09/2005 to 27/09/2005 is also material which creates doubt about the credibility and reliability of evidence of Navin Singh PW1 with regard to extra judicial confession. If it was so he could have stated this fact to the family members of the deceased; villagers; patwari and other police persons at the time of inquest. Non-disclosure of this fact for a long period, belies the evidence of Navin Singh PW1. It is also improbable that the accused/appellant would re- impose confidence in such a person who does not belong to his 10 viradhari. Thus, the learned trial court fell in error in relying upon the extra judicial confession made by the accused/appellant to Navin Singh PW1. 16. The third circumstance that has been relied upon is the confessional statement recorded u/s 161 Cr.P.C. of the accused/appellant by the Judicial Magistrate PW7. I have gone through the entire statement recorded by the Judicial Magistrate PW7. The same is quoted hereunder:- “c;ku vfHk;qDr vUrxZr /kkjk&164 n0iz0la0 uke & y{e.k flag /keZ’kDrq iq= & Jh [kq’kky flag mez&26 o"kZ] is’kk & csjkstxkj] fuoklh & njdksV] Fkkuk & equL;kjh] fiFkkSjkx<+A vfHk;qDr us dFku fd;k fd fn0 11 flrEcj 05 dks uUnk v"Veh FkkA eSaus] izfreku] x.ks’k ikaxrh o uohu ikaxrh us 'kjkc fi;k FkkA 'kjkc geus lqfjax xkWo esa fj’rsnkjks ds ;gkW tkdj fi;k FkkA blh rkjh[k dks 'kke dks 7&8 cts ge pkjksa yksx 'kjkc ihdj vk jgs FksA x.ks’k ikaxrh dks mYVh gksus yx x;k vkSj og u’ks esa ?kj pyk x;kA ge rhu jg x;s FksA ge rhuksa yksx fQj izrki flag ds ;gkW x;sA ogkW ls vkus ds ckn uohu ikaxrh Hkh pyk x;kA eSa o izfreku jgs x;s FksA ge nksuksa cgqr nk: ih;s FksA ge nksuks esa rw&rw eSa&eSa gks x;kA ,d pksV mlus ekjh vkSj ,d pksV eSaus ekjh brus esa vpkud uhps pVVku esa izfreku fxj x;kA eq>s ekywe Hkh ugha pykA eSa Hkh fxj x;k FkkA eSa Hkh chp pVVku esa Ql x;k FkkA eSa fQj oSls gh yksVrs iM+rs /kj vk;kA eq>s lqcg gks’k vk;h FkhA rc ekywe gqvk fd izfreku ej x;k gSA ml jkr dks vW/ksjk Fkk rFkk ckjh’k gks jgh FkhA eq> ihBklhu vf/kdkjh }kjk y{e.k flag dks le>k fn;k gS fd og laLohd`r djus ds fy, vkc} ugha gS vkSj ;fn og ,slk djrk gS rks dksbZ laLohd`fr tks og djsxkk mlds fo:} lk{; Hkh mi;ksx es ykbZ tk ldrh gS vkSj eq>s fo’okl gS fd ;g laLohd`fr LosPNk esa dh x;h gSA ;g esjh mifLFkfr esa esjs }kjk Lo;a fy[kh x;h gSA vkSj y{e.kflag dks ;g i<kdj lquk nh x;h gS A vkSj mlus mldk lgh gksuk Lohdkj fd;k gSA mlds }kjk fd;s x;s dFku dk iwjk vkSj lgh o`rkUr blesa gSA 01-10-2005 U;kf;d eftLVªsV izFke Js.kh MhMhgkV] fiFkkSjkx<” 11 17. It is the settled position of law that the Magistrate who is entrusted with the duty of recording the confession of an accused coming from the police custody or jail custody must appreciate his function in that behalf as one of a Judicial Officer and he must apply his judicial mind to ascertain and satisfy his conscience that the accused has not given his statement on account of any extraneous influence on him. That indeed is the essence of a voluntary statement within the meaning of the provisions of Section 164 Cr.P.C. and the Rules framed by the High Court for the guidance of the subordinate courts. It is not only obligatory on the part of the Magistrate that the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with. 18. While recording the statement u/s 164 Cr.P.C. when an accused is brought before the Magistrate and an application was moved by the Investigating Officer or the accused himself orally or by way of an application states to the Magistrate that he wants to confess the guilt, it is the bounden duty of the Magistrate first to grant him the judicial remand and record this fact in the ordersheet. If the accused insist upon recording his confession, the Magistrate should first take a precaution that he should ask the accused/appellant that he has appeared before the Judicial Magistrate. All the proceedings should be recorded in verbatim. The Magistrate first record that he has made the 12 oral request for recording the confession and thereafter, he should proceed further. At the outset, the Magistrate should inform him that he is the Magistrate 1st Class and he has been brought before him for being sent to him to the judicial custody. When the accused/appellant understand this question, he should leave such material on record in proof of the above fact. Thereafter, he should be informed that he has been committed to the judicial custody and he is not under any judicial obligation to make any confessional statement before him and he would be convicted solely on the basis of this confession. The learned Magistrate should try to emphasize that he is free from whatever defence he wants to take at the time of trial. Thereafter, the answer should be recorded by the Magistrate. Then, he probably should be asked if the police has given any threat, inducement or any other things and used force to confess the guilt, now he should forget about all these threats and inducement. The inducement given by the police would not be fulfilled by them and after recording his confession it will be read in evidence against him and he will be convicted solely on the basis of the confession. He should also be informed about the maximum sentence of the offence for which he is making the confession. The accused should also be asked as to why he is making the confession before the Magistrate. The Magistrate should also assure and tell the accused that he would not be remanded to the police lock up or custody if he did not make the confession. So, he should make his statement voluntarily. He should further be clarified that he is under the judicial custody and he should not bother now about the threats and allurements given by the police. The Magistrate should record and certify that he has cautioned the accused/appellant and he has been warned that he would be convicted on his confession and he is not bound to make 13 confession before him. Even if the accused insist to make the confession, the Magistrate immediately should send him to the jail for a period for reflection as the Magistrate deems fit and proper to decide whether or not he should make a confession. The Hon’ble Apex Court in the case of Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637 has held in para 10 as under :- “10. …………… Sarwan Singh was arrested on November 25th November. His clothes were found bloodstained 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 which is to be borne in mind in dealing with the voluntary character of his confession. What happened on November 30th 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 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