Case: Sahib Singh Vs. State Of Haryana

2. The prosecution in this case presents before us a story of Hallucination where a dead person is seen by the eye-witnesses to have come armed with a gun, fired the gun at one of the witnesses who was injured and then was seen running away with other people including the appellant, towards another village never to be found again. The appellant was seen in the company of that dead person, shoulder to shoulder, armed with a gun and triggering it to keep pace with the activities of his companion, the dead.3. Prosecution unfolds its story by ushering us into an era when the Punjab was writhing in pain of militancy.4. Village Pipaltha, P.S. Garhi, Distt. Jind, where Om Parkash (deceased) lived with his three sons, Dharam Pal (PW 10), Surinder (PW 11) and Suresh (PW 12) (fourth is not material) was targetted by terrorists resulting in the death of Om Prakash and gunshot injuries to his son, Suresh.5. The appellant was prosecuted and tried by the Additional Judge (Designated Court, Rohtak at Jind) and convicted for offences u/s 302/34IPC read with Section 3(2) ofthe Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short, the `Act) with a fine of Rs. 200/- or else further rigorous imprisonment for one year; under Section 452/34IPC (Sentence : 3 years R.I. with a fine of Rs. 100/- or else 3 months further R.I.); under Section 307/34IPC (Sentence : 7 years R.I.); and under Section 394/34IPC (Sentence : 10 years R.I. with a fine of Rs. 200/- or else R.I. for one year).6. House of Om Prakash which also contained a shop at which Dharam Pal and Surinder used to sit, was located almost in the centre of the village in a busy locality. A short distance away was another shop at which Suresh and his brother, the fourth son of Om Prakash, used to sit.7. On 18.11.1991 at about 6.30 p.m. while Om Prakash was at the shop of his two sons, Dharam Pal and Surinder, two young Sikhs armed with small guns, came and asked Om Prakash to hand over his revolver but Om Prakash who did not possess a revolver offered his .12 bore gun. The two Sikh youths, at the point of gun, brought all the three, namely, Om Prakash, Dharam Pal and Surinder on the street where a group of three other young Sikhs were standing on the right side of the shop while another group of three or four Sikh youths, which also included the appellant, was standing in front of their shop. All of them were holding small guns and were between the age group of 25-30 years. One of the two Sikh youths, brought out a Hero-Honda Motor Cycle from the shop and wanted Om Prakash to sit on the Motor Cycle but Om Prakash refused and while trying to run inside the shop, he was fired upon. He attempted to enter the room on the rear of the shop but all the Sikh youths present there started firing indiscriminately as a result of which he received injuries on various parts of his body. While Dharam Pal and Surinder managed to escape, Suresh, who was at the other shop, came running to help them but was injured in the firing. All the Sikh youths then went away towards village `Rewar.8. Om Prakash was taken to a hospital of Narwana where he was declared dead while Suresh, who was medically examined there, was admitted for treatment.9. After due investigation, a charge-sheet was submitted only against the appellant who was tried and ultimately convicted as aforesaid.10. The appellant, from the very beginning, had denied the prosecution story and had contended that he had been falsely implicated on account of enmity as civil and criminal cases were pending even on the date of incident between him and other members of the family of Om Prakash. He, in that connection, examined one witness in defence and also brought on record certain documents including a copy of the order passed by the Punjab and Haryana High Court in Criminal Miscellaneous Case No. 6397(M) of 1992.

Reasoning:
41. In view of these decisions, it is now certain that a "Confession" must either be an express acknowledgement of guilt of the offence charged, certain and complete in itself, or it must admit substantially all the facts which constitute the offence.According to these requirements, confession has to be made before a Police Officer not below the rank of a Superintendent of Police. Before recording the confession, the Police Officer has to explain to the person concerned that he is not bound to make the confession and that if he makes the confession, it may be used as evidence against him. The Police Officer has also to satisfy himself, after questioning the person concerned, that he is making the confession voluntarily. The Officer recording the confession has also to record a certificate of having observed the requirements of law.46. The Act, like the Evidence Act, does not define "Confession" and, therefore, the principles enunciated by this Court with regard to the meaning of "Confession" under the Evidence Act shall also apply to a "Confession" made under this Act. Under this Act also, "Confession" has either to be an express acknowledgement of guilt of the offence charged or it must admit substantially all the facts which constitute the offence. Conviction on "Confession" is based on the Maxim "habemus optimum testem canfitentem renum" which means that confession of an accused is the best evidence against him. The rationale behind this rule is that an ordinary, normal and sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience.47. Under this Act, although a confession recorded by a Police Officer, not below the rank of Superintendent of Police, is admissible in evidence, such Confessional Statement, if challenged, has to be shown, before a conviction can be based upon it, to have been made voluntarily and that it was truthful.A perusal of the Confessional Statement would indicate that three or four days prior to the date of incident, which incidentally is 18.11.1991, Kala Singh had come to the appellant and the appellant had requested Kala Singh to commit the murder of Om Prakash, for which Kala Singh wanted Rs. 15,000/- to be paid to other terrorists who would be hired for that job. It was on the basis of this arrangement that Kala Singh came along with six other terrorists, including Nachhatar Singh, on 18.11.1991 and committed the murder of Om Prakash. The terrorists, including Kala Singh, went away on the Hero Honda motor-cycle.The Confessional Statement does not admit even substantially the basic facts of the prosecution story, inasmuch as in the Confessional Statement, no role is assigned to the appellant while in the prosecution story an active role has been assigned to him by showing that he too was armed with a gun and had gone at the spot and participated in the commission of the crime by firing his gun specially at the injured witness. The Confessional Statement is not truthful and is part of the Hallucination with which prosecution and its witnesses were suffering. It is accordingly discarded and cannot be acted upon.53. A little effort on the part of the trial court would have revealed to it the falsity of the prosecution case, but it proceeded in a mechanical manner and ultimately convicted the appellant ignoring that there was a deliberately delayed FIR and the case set out therein was sought to be proved through highly interested witnesses, instead of independent witnesses, and also by bringing on record a Confessional Statement which contained false facts. This leads to the conclusion that the trial judge was sitting only to convict forgetting that judiciary holds the SCALES seven, not titled.