Judgment Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 30 of 2004 Dhurat Singh @Raju, S/o Sri Ratan, R/o Village – Khalsi, Patti – Dichai, Tehsil – Dunda, District – Uttar Kashi. …..…...Appellant. Versus State of Uttaranchal. …….Respondent. Coram Hon’ble B.C. Kandpal, J Hon’ble Nirmal Yadav, J. (Per Hon’ble Nirmal Yadav, J.) Mr. Vinod Sharma, learned counsel for the appellant. Mr. S.S. Adhikari, learned AGA for the State of Uttarakhand / respondent. Dhurat Singh, appellant was sent for trial for offence under section 302 IPC for the murder of his uncle Kaur Singh, resident of Khalsi. He was convicted for the above offence and sentenced to life imprisonment with a fine of Rs. 5000/- and in default of payment thereof to further undergo imprisonment for 6 months. On 23.11.2001 Kashmiri Devi, daughter of Kaur Singh (deceased) visited her father’s house and found his father’s cap and a lot of blood in the courtyard. Locks of the both rooms were lying open. She went to Dilchand PW 1 and narrated the above facts. Dilchand immediately 2 accompanied her to the house of Kaur Singh. With the help of a torch they entered into one of the rooms and found dead body of Kaur Singh lying there. Since it was night time complainant Dilchand approached Patwari of Bardogi area on the next day and submitted written application (Exhibit Ka 1). On the basis of written application, First Information Report (Exhibit Ka 4) was registered on 24.11.2001. Patwari reached the spot and conducted spot inspection and prepared Panchayatnama (Exhibit Ka 6). He also prepared site plan and sent the dead body for the postmortem examination. The postmortem of the deceased was conducted on 26.11.2001 at 12.45 p.m. by Dr. Rajesh Shah. During the investigation, Investigating Officer took into possession one iron axe from the spot and recorded statements of witnesses. The Investigating Officer recorded the statements of some other witnesses on Ist and 2nd December 2001. The accused was arrested on 02.12.2001 and his statement was also recorded. The blood-stained pant worn by accused was taken into possession vide memo Exhibit Ka 11. The accused was taken to Uttarkashi on 03.12.2001. He was produced before Judicial Magistrate on 4.12.2001 for getting his statement recorded under Section 164 Cr.P.C. However, it was received by PW10-Ravindra Maithani on 5.12.2001. On completion of investigation, the accused was charged under section 302 IPC and challan was presented in the court to which the accused pleaded not guilty and claimed to be tried. In order to prove its case prosecution has produced as many as 10 witnesses. 3 The testimony of PW 1 – Dilchand is formal in nature. According to PW 1, daughter of Kaur Singh (deceased) Kashmiri Devi came to his house and told him that his father was missing. He and Kashmiri Devi went to the house of Kaur Singh and found dead body of Kaur Singh lying in a room and thereafter he informed the Patwari. He joined investigation and identified the dead body at the time of preparing panchayatnama. He admitted that he had not mentioned the name of any accused in the first information report. PW 2 – Surat Singh proved the presence of Dhurat Singh in the village about 10 -12 days prior to the date of occurrence. According to Dhurat Singh, he had come to village after a period 8 – 9 years. Even PW 3 – Kashmiri had not witnessed the occurrence and had visited her father’s house only after occurrence. PW 5 – Kamla Devi submitted that her husband Kaur Singh was of good character, he never used to take liquor nor he had illicit relations with any woman, as such, her statement was of no help to the prosecution. Prosecution does not find any support from the statement of PW 6 – Udma Devi, Daughter-in-law of the deceased. PW 7 – Dhyan Singh is the son of deceased. He denied Dhurat Singh having met him at Firozpur. Later on, he was declared hostile and nothing useful could be elicited from his statement. Even statement of Trippan Singh, PW 8, is of no help to the prosecution. Dr. Rajesh Shah – PW 4, prepared the postmortem report and found the following ante-mortem injuries on the body of the deceased: 4 i) 14 X 3 cm incised wound 5 cm above the left eye brow obliquely placed. Brain matter was coming out from the injury and skull bone was found fractured. Small portion of the brain was found missing, blood clot found around the injury, injury found in semi circular shape and edges were found to be regular and inverted. ii) 6 x 3 cm. incised wound on the right side of the neck. Cut was 7 cm. below the right ear. Injury was found to be muscle deep, all the muscles and blood arteries were cut. Injury was semi circular with regular and inverted edges. Following post-mortem injuries were also found on the body of the deceased: i. Upper part of the right ear was missing. ii. Both the eye balls and muscles of both the eye edges were also found missing. iii. Left portion of the cheeks was found to be missing. As per the doctor’s opinion these injuries could be caused due to rat and insect bites. Left parietal bone of the skull was fractured. Cartilages were damaged. Brain was yellow in colour. Both parts of the heart were found empty. Cause of death was due to shock and excess bleeding. According to doctor, injuries could be caused by Kulhari, Ex.1 and death might have occurred between 22nd and 23rd November 2001. 5 PW9-Vikram Singh is the Investigating Officer, who had recorded the statements of witnesses and prepared the memo etc. after the matter was reported to the police. He moved an application on 4th December, 2001 before the Magistrate for recording the statement of Dhurat Singh under section 164 of Cr.P.C. Thereupon the statement was recorded on 05.12.2001. In his cross examination, witness stated that accused was taken to Uttarkashi on 03.12.2001 but could not be produced before Magistrate as he had reached quite late and he kept the accused in the police station on 03.12.2001. He produced him before the Magistrate on 04.12.2001 whereupon the learned Magistrate ordered to produce him on 05.12.2001. Mr. Ravindra Maithani, Additional District Judge (the then Chief Judicial Magistrate) appeared as PW 10 and stated that on 4th December 2001, Patwari, Bardogi had produced Dhurat Singh before him along with an application that accused wanted to make his confessional statement. On the said application, he ordered for production of accused on 05.12.2001 and accused was sent to judicial custody. On 05.12.2001, when Dhurat Singh was produced before him he had clearly made him understand that he was not bound to make a confession and in case, he makes such a statement it may be read against him in evidence. He also inquired from the accused as to where he was during the night of 4-5 December, 2001. On his query, accused replied that his stay was comfortable. After the Magistrate was satisfied that accused wanted to make his confessional statement without any fear or inducement/consideration and voluntarily, he recorded his statement under section 164 6 Cr.P.C. Learned Magistrate identified his signature on the application as well as on the statement recorded by him (Exhibit Ka 14). When examined under Section 313 Cr.P.C, accused denied the allegations levelled against him and also denied having made the confession that he had murdered his uncle Kaur Singh. Accused stated that he had been falsely implicated. On 25.11.2001, he had come back from Ludhiana to Village Cham and had an altercation with the Patwari who arrested him and falsely implicated in the present case. Accused further stated that he was not in his proper senses when he was produced before the Magistrate and he did know as to what was inquired from him and what was his reply. He categorically retracted from his statement made before the Magistrate. Learned Trial Court having taken into consideration the entire evidence and facts on record, convicted the accused/appellant and sentenced him as referred to in paragraph 1 of the judgment. We have heard learned counsel for the parties and with their able assistance scrutinized the evidence on record. Learned counsel for the appellant attacked the judgment of conviction mainly on the ground that the alleged confession (Exhibit Ka–14) cannot be relied as it was not recorded as per the requirement of Section 164 (2) Cr.P.C. He further argued that confessional statement was not made voluntarily and out of free will of the accused. He pointed out that admittedly the accused retracted from the alleged confessional statement and therefore, the same 7 cannot be acted upon without corroboration for the purpose of basing conviction. Learned counsel for the appellant further pointed out that before recording the statement the learned Magistrate should have informed the appellant that he is making statement before the Magistrate and that in case he makes confessional statement the same would be used against him. He referred to a note made below in the application (Exhibit Ka-13) which is alleged to have been written by the Magistrate on 04.12.2001. A perusal of which shows that the said note is in different handwriting and by different pen than the one used in the confessional statement (Exhibit Ka-14). Learned counsel for the appellant further pointed out that learned Magistrate has mentioned at the end of the statement that he had made the accused understand that he was not bound to make statement though he should have made this clear to the accused before recording the statement. Learned counsel for the appellant argued that the trial Court has convicted the accused solely on the basis of confessional statement, which does not even find any corroboration with regard to the material particulars by any cogent evidence. Learned counsel for the appellant referred to the judgment of the Supreme Court reported in 1992 SCC (Crl) 157 (Chandrakant Chimanlal Desai Vs. State of Gujarat) in support of his argument. Learned counsel for the appellant argued that except the alleged confessional statement there is not even an iota of evidence on the record to connect the accused with the alleged crime. The accused was not resident of the village 8 and he was living at Firozpur. Only Surat Singh PW 2 says that he had seen accused 10 - 12 days prior to the occurrence. From his statement, it could only be inferred that accused was present in the village but it does not at all prove that on the date of the occurrence the accused was present with Kaur Singh in his house or he had committed the murder of the deceased. Even Kashmiri Devi – daughter of Kaur Singh (deceased) simply says she had seen blood and his father’s cap in the courtyard, thereafter she informed PW1 – Dilchand and accompanied him to her father’s house and found his dead body lying in the room. PW5 – Kamla Devi wife of the deceased categorically stated that the character of her husband was good, he never consumed liquor nor he had illicit relations with any woman of their family. PW6 – Udma Devi wife of Dhyan Singh also could not prove anything to support the prosecution case. PW7 – Dhyan Singh denied that Durat Singh accused met him at Firozpur. He also denied that he had made any inquiry about his father. PW8 Trippan Singh, son-in-law of deceased had also not stated anything to support the prosecution story. The prosecution has failed to bring anything on the record to corroborate the material particulars stated in the alleged confessional statement made by the accused. On the other hand, learned AGA argued that the learned Magistrate recorded the confessional statement of the accused after he was fully satisfied that confessional statement was made voluntarily and without any coercion or threat. He further argued that confession alone if true and reliable can form the basis of conviction. He further pointed that each and every circumstance mentioned in 9 the confessional statement need not be corroborated independently. We have gone through the confessional statement (Exhibit Ka-14) and the footnote of learned Magistrate on the application (Exhibit Ka-13). A perusal of the same shows that confessor had visited the house of Kaur Singh in the first week of November, 2001 along with his cousin Dhyan Singh. At that time Kaur Singh’s wife had also accompanied to Firozpur. Durat Singh again came back to the village on 11.11.2001 for celebrating Diwali and thereafter, he visited the house of deceased on 17 – 18 November, 2001. He stayed with him for two days. That means the occurrence might have taken place on 20.11.2001 according to the said narration but the dead body of Kaur Singh was found by Kashmiri Devi and Dilchand in the evening of 23rd November 2001. According to Dr. Rajesh Shah (PW4), Kaur Singh might have died on 22 – 23 November, 2001 and as such, medical evidence does not support the most material fact as mentioned in the confessional statement. Even other facts with regard to the character of the deceased as well as relationship between Kaur Singh and his wife do not find any support from the other witnesses. As per confessional statement deceased was not having good relations with his wife and that he had illicit relation with Udma Devi. Both Kamla Devi wife of the deceased and Udma Devi daughter-in-law have categorically controverted the above mentioned facts. Kamla Devi has stated that she was having good relations with her husband. She also stated that Kaur Singh (deceased) never took liquor whereas in the confessional statement it is stated that deceased Kaur 10 Singh and accused Dhurat Singh consumed two bottles of liquor on the said night. We may consider the legal aspect with regard to the conviction of a person primarily on the basis of the confession or retracted confession. The Hon’ble Apex Court in the case of Pyare Lal Bhargava Vs. State of Rajasthan reported in AIR 1963 SC 1094 clarified the legal position as under: “A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances can such a conviction 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 particulars.” The Apex Court in the case of Bharat Vs. State of U.P. reported in 1972 SCC (Cri) 198 observed thus: - “Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or 11 promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramania Goundan v. State of Madras.” 12 The Supreme Court in the case of Delhi (NCT) Vs. Navjot Sandhu 2005 (11) SCC 600 considered in detail the legal proposition with regard to the confession and retracted confession for basing conviction. After referring to a Constitution Bench judgment of the Apex Court reported as Hari Charan Kurmi and Jogia Hajam v. State of Bihar, 1964(2) Criminal Law Journal 344, it was observed that in dealing with a case against an accused person, the court cannot start with the confession of a co- accused, it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to lend assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. It is true that the confession alone can be acted upon if the court is satisfied that it is true and made voluntarily. In the present case, the confession was retracted by the appellant when he was examined under Section 313 Cr.P.C. during the trial. It is well settled that a confession, if voluntary and truthfully made is an efficacious proof of guilt. It has been held by the Apex Court in a number of decisions that in case of retracted confession, the material facts need to be corroborated. It has to be proved by the prosecution that confession is not caused by any inducement, threat or promise and the court has to be extra careful to examine such a confession and compare it with the rest of the evidence in the light of the surrounding circumstances and probabilities of the case. If the confession appears to be probable and it naturally fits in with the rest of the evidence and 13 surrounding circumstances, it must be taken to be true and trustworthy. At the same time, a detailed confession which would otherwise than the special knowledge of the accused, may by itself be not sufficient to raise a presumption that it is a truthful one. The main features of the confession to be verified are, - (i) whether the confession was perfectly voluntary and (ii) if so, whether it is true and trustworthy. In case it is not so proved and verified, the conviction cannot be based on confession alone. In the present case, though the confession is pretty long and detailed, however, the prosecution has not been able to prove that the main features and material particulars set out in the confession are true set of facts. In such circumstances, we are of the opinion that it would be quite unsafe to consider details of uncorroborated facts to be true and trustworthy. It has to be appreciated that there can be times where despite procedural safeguards confessions are made for unknown reasons or may be made out of fear or other considerations. In a case like the present one, where confession is made before the Magistrate and retracted at a later stage, the court is supposed to probe deeper into the matter. It is true that learned Magistrate had asked the confessor to be present in Court on the next day, but it appears that it was not properly explained to the confessor that he was not bound to make the statement. There is nothing on record to show that the retraction was because of an after-thought or advise and, therefore, it would be unsafe to act upon the retracted confession without finding any corroboration or assurance from the other sources as to the guilt of the accused. The confession cannot be acted upon as there is not even a slight evidence to corroborate it. As far back as 14 1952, the Apex Court in the case of Kashmira Singh vs. State of M.P., AIR 1952 SC 159, had observed as under:- "The confession of an accused person is not evidence in the ordinary sense of the term as defined in S. 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept." By now, it is well established that a voluntary and true confession made by an accused, though it may be subsequently retracted by him, can be taken into consideration against a co-accused by virtue of Section 30 of the Indian Evidence Act. But as a matter of prudence and practice, the Court should not act upon it to base a conviction of the accused without full and strong corroboration in material particulars both as to the crime 15 and as to his connection with that crime. The amount of credibility to be attached to a retracted confession would depend upon the circumstances of each particular case. In the present case, the confession of Dhurat Singh, accused is not corroborated in material particulars concerning the general story told by him as to crime and also his connection therewith. There is not even an iota of evidence with regard to the presence of the accused at the house of deceased Kaur Singh or the manner in which the crime was committed. All the witnesses have categorically stated that the deceased was a person of good character. He did not have illicit relations with any woman of his family nor he was addicted to liquor, whereas, in the confessional statement made by Dhurat Singh, the story is other way round. Therefore, we are unable to act upon the confessional statement made by Dhurat Singh. In the net result, we do not find it safe to base conviction on the uncorroborated solitary confessional statement of Dhurat Singh. The appeal is, thus, allowed and judgment of conviction and order of sentence passed against the accused is set aside. (Nirmal Yadav, J.) (B.C. Kandpal, J.) 25.02.2010 SKS