Sajjan Singh vs The State

Chopra, J.—These two appeals by Sajjan Singh, one through Jail and another through his counsel, are directed against the order of the Sessions Judge, Kapurthala (Camp Bassi) convicting the appellant under Ss. 302 and 392 I.P.C. for the murder of Chattar Singh of village Nahiun and robbing him of Rs. 620/-. He was sentenced to transportation for life on the first and two years'' R.L on the second count, and the sentences were directed to run concurrently.

The appellant also originally belonged to Nahiun but for some time prior to the partition he was living in Pakistan. Since then he migrated to village Baopur and took up his residence there. A few months before the incident in question he returned to his original home and got some land for cultivation from Chattar Singh deceased and his brother Narain Singh. The prosecution case is that these two brothers though of advanced age, were yet unmarried. Narain Singh who is the younger of the two and is aged 60, succeeded in procuring a woman to live with him as his wife. This gave an incentive to Chattar Singh as well and made him anxious to get a companion for himself. The accused offered to help and assured Chattar Singh that he (the accused) could get him a beautiful woman from Amloh if the latter could arrange for Rs. 620/- Chattar Singh asked his brother Narain Singh to lend him the money. Narain Singh after a. good deal of reluctance paid the amount to the deceased in the presence of the accused, Kahla Singh P.W. 13 and Nand Singh P.W. 15. This he did at about 9 A.M. on 26th January, 1951, and no sooner than the money was in the hands of Chattar Singh he started with the accused for Amloh.

At Gobindgarh, wherefrom they boarded a bus for Amloh, they met Gurdev Singh P.W. 11 and told him that they were out to purchase some fodder. On reaching Amloh they took tea at a shop and met Ram Lal, a Brahmin of Baopur. The accused took this Brahman aside and after having a little talk with him pretended that he had been informed that the woman had gone to Baopur. The two then walked down to Ghulumarjra to meet Niranjan Singh P.W. 12 a sister''s son of Chattar Singh. They reached Niranjan Singh''s house at sunset but he was found absent. They were served with tea by an old woman and then they returned to Amloh. From there they started for Bipur. Night had fallen and it had grown dark when they neared a pond in the outskirts of Bipur. Chattar Singh left his ''Kirpan'' with the accused and went to answer the call of nature. When he was washing his hands at the pond the accused all of a sudden attacked him and inflicted four or five blows with the ''Kirpan''. The victim died then and there.

The accused flung the ''Kirpan'' into the pond, broke the scabbard and threw the pieces at the spot, removed the cash from a pocket of the deceased and took to his heels. He started for Baopur and reached there in the night. He got something to eat from his mother and went to sleep. On the following morning viz. 27th January, he went to Khanna and after making certain purchases proceeded to Lalheri. There he settled a bargain for the purchase of a bullock for Rs. 470/-and maize fodder worth Rs. 20/- from Gaura P.W. 6. He then took a cart from Nahiun and brought fodder and the bullock to that village. Gaura was paid Rs. 445/- in cash and given a bullock by the accused in return. Thereafter the accused stayed on at Nahiun for ten or twelve days, except for a day or two when he had gone to Baopur to bring his mother to live with him. On 12th Feb., the accused was going to Baopur again when on the way he was arrested by M. Gulzara Singh S.I. Police. The above facts were given out by the accused himself in his confessional statement recorded by S. Nathu Lal Magistrate 1st Class (Executive) on 13th February, 1951.

In the meantime Gharibu Chaukidar of Baopur P.W. 4 when returning to his village after grazing cattle on the evening of 27th February i.e. a day after the incident in question, saw a dead body near the pond in the outskirts of the village and apprised the ''lambardars'' about it. They went to the spot, put a guard on the dead body and Bakhtawar Singh ''Lambardar'' p.w. 3 reported the matter to the police at Payal. The report was recorded in ''Roznamcha'' at 11-45 P.M. that night. M. Gulzara Singh S.H.O. hurried to the place and reached there at 5 A.M. on 28th. He took charge of the dead body which he found to be highly mutilated. The face and several other parts had been eaten away by dogs and other animals. He did not succeed in his attempt to get the body identified.

After preparing the inquest report, the body was sent for ''post mortem'' examination to Amloh. Pieces of a scabbard were picked up by the Sub Inspector from near the dead body and a currency note of Rs. 10/- and coins worth Rs. 4/10/- were removed from a pocket of the deceased. Ex. p o Is the memo prepared of these articles on 28th February. Three shirts, a turban, a ''Khes'' and a pair of shoes, removed from the dead body at the time of medical examination, were token possession of by the Sub Inspector on 29th. Ex. P.B. lathe memo with respect to these articles. The body was cremated without taking a photograph and without having been identified by any one. Since the doctor had reported that the death was due to violence, a case under S. 302, I.P.C., was registered on 1-2-51. S. Sukhdev Singh A. S. P. who had also joined the investigation, visited the spot on 3rd February and noticed a Kirpan partially visible in the pond. The ''Kirpan'' was taken out of the water by Gharibu Chaukidar at his bidding.

Dr. Sham Lal. M. B. B. S. Medical Officer, Amloh, who performed the ''post-mortem'' examination, was of the opinion that the dead body was of a middle aged, about 50 years old, mala. The tissues of face, neck and front of right fore arm were totally destroyed, bones of right half of the face and the right front part of the skull were also destroyed. The following injuries on the body were noticed:

Horizontal incised wound 1" X 1/3" x bone deep on top or right shoulder.

Oblique cut wound 1/2" X 1/3" X subcutaneous, two inches medial from injury No. 1.

Little finger of right hand totally amputated along with fifth metacarpal bone from its base with a sharp weapon.

Skull bone completely cut horizontally three inches long on left side of skull cutting left parietal and frontal bones.

Incised wound 21/2" X 1/4" muscle deep longitudinal on left ring finger and palm dorsal aspects.

The death, in the opinion of the medical witness, was due to a severe injury to the brain as a result of the cut wound on the left side of the skull. The injuries appeared to have been caused by a sharp-edged weapon and the one on the head to be sufficient in the ordinary course of nature to cause death.

When Chatar Singh did not return for some days, his brother Narain Singh got anxious about him. Three days after Chatar Singh had left, he once enquired from the accused about his brother but could not get a satisfactory reply. Waiting for another six or seven days, he started making A search for him. On 12th February he learned that some days back a dead body had been found on the pond of Baopur, and that it had been removed to the Payal Police Station. The same day he went to Payal, identified the clothes of his brother and expressed his suspicions against the accused. Till then the police had got no clue of the identity of the deceased or of his assassin. M. Gulzara Singh, on getting the information started with Narain Singh for Baopur in search of the accused. He is alleged to be lucky enough to arrest the accused that very day viz. 12th February when the latter was on his way from Nahiun to Baopur to bring his mother. The accused was taken to the Police Station and there he is said to have at once expressed his desire to make a clean breast of the whole affair before a Magistrate.

Next day i.e. on 13th February he was produced before S. Nathu Lal, Magistrate 1st Class (Executive) who got a detailed statement of his, disclosing the facts mentioned above, recorded from his clerk. After some further investigation a challan under Ss. 302 and 392, I.P.C. was put up before Magistrate 1st Class, Bassi on 26th Feb., 51. The Magistrate ordered the witnesses cited by the prosecution to be summoned for 13th March. On this date the witnesses who had appeared, could not be examined because the P.P. was not available and the case was adjourned to 14th March. Before the commencement of the case that day, the accused submitted an application complaining about pressure and torture exerted on him by the police to extract his confession which he alleged was absolutely false and the result of police pressure. The commitment of the accused and his trial thereafter resulted in his conviction as stated already.

At the outset Shri Piare Lal Handa, the learned counsel for the appellant, contended that the prosecution had failed to affirmatively prove that the dead body recovered from the pond was that of Chattar Singh. He has urged that the police did not take a photograph of the dead body before it was cremated and that without it the identification by means of clothes removed from the dead body was not sufficient to prove the identity of the deceased. It is correct that the police officer should have taken a photo of whatever was left of the dead body. Even if some parts of it had been mutilated or eaten away by animals, some assistance in the way of identification could have been afforded by the photograph. It is also correct that identification of clothes may not always be sufficient to prove identity of the person to whom they belonged. But in this case the number of clothes and the manner in which they were identified makes me think that the''corpus delicti'' stands sufficiently established. (After referring to the evidence on the point and holding that the dead body was that of Chattar Singh his Lordship proceeded:)

As regards the date, time and place of the incident and how it actually happened the prosecution solely relies on the confessional statement of the accused. (Before considering the confession, his Lordship considered the evidence on the point and found that it was of little corroborative value. His Lordship then proceeded:)

8-10. We are then left with, the confession and that too a retracted one. Shri Piare Lal contends that the statement was not admissible in evidence since the requirements of S. 164 Cri. P.C. had not been strictly complied with, it is urged that there is no material on the record to judge. If the statement had been voluntarily made or whether it was the result of police pressure. As already observed, S. Nathu Lal did not record the statement himself and without assigning any reason he entrusted the; work to his clerk. Even at the trial he did not explain what prevented him from taking down the statement in his own hand. Either he was too busy with some other work or was indifferent to the job. He does not say that there was any trouble with his hand, which necessitated the delegation of the work to his reader. The impression that I gather is that he was not fully mindful of the importance of his duties and conscious of his responsibilities. So far as the record goes, he put only one question to the accused before the clerk started taking down the statement. The solitary question was if the accused knew that the officer was an "M.I.C." and that the statement which he (the accused) would make, could be used as evidence against him. The question was replied by the accused in the affirmative. In the first instance, I doubt if the accused could and did understand as to what was meant by "M.I.C." and then, this question alone could hardly be sufficient to satisfy the Magistrate that the confession was voluntary. At the close of the statement the Magistrate reproduced the memorandum that is required by S. 164. sub-cl. (3), Cri. P.C. to be made at the foot of the record. The law enjoins that before recording a confession the Magistrate has to satisfy (himself that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution, still lurking in the accused''s mind. Besides the warning specifically provided for in the first part of sub-s. 3 of S. 164, namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, he should also, in clear terms, be assured of protection from any sort of apprehended torture or pressure from such extraneous agency as the police or the like in case he declines to make a statement. The Magistrate who is entrusted with this duty, must appreciate his- function in that behalf as one of a Judicial Officer and must apply his judicial mind to the task of ascertaining that the statement that the accused is going to make is of his own accord and not on account of any influence on him. He has also to bear in mind that satisfaction of his conscience as to the voluntary character of the statement is not the only act to be achieved by him but he should leave such materials on the record as would satisfy the Court which is to decide the case, that the confessional statement was in fact voluntarily made. The reply given by the accused in this case to the single question put to him does not satisfy me that the confession was the result of his free will and was voluntary. The learned counsel for the State has drawn our attention to the statement of Sardar Nathu Lal at the trial, wherein he had deposed that all necessary precautions in order to be sure that the confession was voluntary had been taken by him. Giving the details of the measures adopted, the Magistrate averred that he had given sufficient time to the accused to compose himself and to decide if he should make a statement, that he had enquired as to why he wanted to make a confession and also that he had tried to find out how long the accused had been in police custody. If In fact these enquiries and precautions had been made and observed, I fail to understand what prevented the Magistrate from making'' a note of them on the record. It is not so very easy to believe that the remembered all these facts when his statement was recorded some four months after. The fact that he did not himself take the trouble of recording the statement makes me hesitant to accept that he had properly assured himself that the Statement was voluntarily made.

Another fact that makes me doubt the voluntary nature of the confession is the statement itself, the substance of which has already been given, It is full and detailed and the facts are stated in natural and proper sequence. The entire prosecution case was set out therein. Everything necessary for the prosecution to establish a charge of murder was admitted. My own opinion is that it was hardly possible for a boy of the age of the accused (16 or 17) to make a coherent and complete statement which he did, unless he was tutored by some one else. The internal evidence furnished by the contents of the confession strengthens my view that the possibility of the confession having not been made out of the free will of the accused and of the statement being not a faithful exposure of the facts as they occurred cannot be ruled out. The manner in which it was recorded and the matter narrated do create a reasonable doubt as regards its voluntary nature.

Another difficulty in the way of the prosecution is that the confession which was retracted before the Committing Magistrate, is not corroborated by any other reliable evidence. It is no doubt correct that if the Court is satisfied that the retracted confession was made voluntarily and without any kind of pressure or inducement it can be used against the maker and conviction can be recorded merely on its strength. But, for that the Court has to be satisfied that the statement was not only voluntarily made but was also a true disclosure of the facts as they happened. To acquire that satisfaction the Courts generally look for corroborative evidence. As a rule of prudence it is regarded not safe to base a conviction solely on a retracted confession unless there are circumstances which leave no room for doubt that it is voluntary and also true. In the present case, as already observed, I do not feel satisfied that the confession was voluntary or that it was true. The other evidence examined by the prosecution not only does not corroborate the confession but contradicts it on some of the points. The conduct of the accused after the alleged murder was also not in conformity with his complicity in the crime. He returned to Nahiun and stayed there for about a fortnight. Nobody except Narain Singh ever enquired of him as to the whereabouts of the deceased. Narain Singh who says he met the accused only once, does not tell us of the information he got from the accused. All that he stated was that he did not get a satisfactory reply. After the alleged incident the accused went on living normally in the village, striking bargains for bullocks and fodder and making various purchases from Khanna and other places. He did not abscond, nor did he try to keep any secret about his movements. Again, it looks rather strange that a man nearing sixty five, as the" deceased was, would hanker for the purchase of a woman and would for that purpose readily confide in a boy of the accused''s age. That makes the very foundation of the prosecution case doubtful. In view of all these facts, I do not think the prosecution has succeeded in proving its case beyond all reasonable doubt.

In the result the appeals are accepted, the order of the Sessions Judge is set aside and the appellant acquitted of the charge. He should be set a liberty forthwith if not required in any other case.