The State of Rajasthan vs Sawai Singh

B.R. Arora, J.—This murder reference and the appeal arise out of the judgment dated (September 6, 1991, passed by the Additional District and Sessions Judge No. 1, Jodhpur, I by which the learned Additional Sessions Judge convicted and sentenced the accused-I appellant Sawai Singh for the offence u/s 302, IPC.

Accused-appellant Sawai Singh was tried by the learned Additional Sessions Judge No. 1, Jodhpur, for committing the murders of his two brothers Mangu Singh and Bhanwar Singh on May, 13, 1989, in the open place near village Kaliberi. On May 15, 1989, the First Information Report was lodged at Police Station, Mandore, by one Jai Singh. It was averred in the First Information Report that Ram Lal, who had gone to clear the call of the nature, found two deadbodies in the decomposed conditions near the boundary-wall of his field. On the basis of this report, the police registered the case, recovered the deadbodies and the clothes from the deadbodies as well as lying near the deadbodies. Thereafter the postmortem examinations of those two deadbodies were conducted by PW 14 Dr. Dharmendra Sharma. On May 19, 1989, Hukam Singh-father of the deceased-lodged an FIR Ex.P.7 at Police Station Mandore. The police, after necessary investigation, presented the challan against the accused and the accused Sawai Singh was tried by the learned Additional Sessions Judge No. 1, Jodhpur, for the offence u/s 302 IPC. The learned Additional Sessions Judge, after trial, convicted the accused u/s 302 IPC. and sentenced him to death and submitted the proceedings to this Court u/s 366(1) of the Code of Criminal Procedure for confirmation of the sentence of death passed against the accused Sawai Singh. This petition for confirmation of the sentence was registered as D.B. Criminal Murder Reference No. 1 of 1991. The accused Sawai Singh, also, preferred an appeal through jail.

The prosecution, in support of its case, examined twenty- three witnesses and exhibited twenty documents. The accused did not produce any evidence in support of his defence and exhibited only one documents. The nature of the evidence, produced by the prosecution, consists of PW 1 Ram Lal, who had first seen the two deadbodies near the boundary-wall of his field in the open place when he had gone to clear the call of the nature. PW 2 Jai Singh is the witness, who had lodged the First Information Report Ex.P.1 at Police Station, Madore, He is also, a Motbir witness regarding Ex.P.1 to Ex. P.6. PW 3 Hukam Singh (father of the deceased as well as the accused) and PW 7 Bahadur Singh (uncle of the accused) are the two witnesses, before whom the accused confesses his guilt. PW 6 Smt. Vimla and PW 4 Poonam Nath are the two witnesses regarding the last-seen of the deceased in the company of the accused. To corroborate the testimony of these two witnesses, i.e., PW 6 Smt. Vimla and PW 4 Poonam Nath regarding the last seen of the accused in the company of the deceased, the prosecution has, also, placed reliance on the statement of PW 5 Roop Singh and PW 3 Hukam Singh on this point, to whom Smt. Vimla informed on the next date of the going of Mangu Singh and Bhanwar Singh with accused Sawai Singh. PW 8 Gumna Ram is the shop- keeper, from whom the accused used to purchase house-hold goods, PW 9 Nar Singh is the Miner, with whom the accused Sawai Singh used to work. PW 11 Jai Singh, PW 12 Prem Singh and PW 15 Chater Singh are the Motbir witnesses, in whose presence various Memos like Ex.P.2, Ex.P.3, Ex.P.6 and Ex.P.10 were prepared. PW 21 Gokul Ram and PW 22 Balwant Singh are the two witnesses of the recovery of the blood-stained stone, by which the accused- appellant alleged to have killed the deceased Mangu Singh and Bhanwer Singh. Ex.P.14 is the recovery memo of the stone and of the diary and Ex.P.15 is the site plan, of the field from where the stone was recovered. PW 14 is Dr. Dharmendra, who has conducted the post-mortems on the deadbodies of deceased Mangu Singh and Bhanwar Singh. PW 18 is Smt. Mangi Devi, in whose house Roop Singh-the brother of PW 3 Hukam Singh-is residing as a tenant. This witness has not supported the prosecution case and was declared hostile. The remaining are the police-witnesses, who were connected with the investigation or the registration of the reports, PW 10 Dalpat Singh was the Head Constable posted at Police Station,'' Mandore, with whom the Articles Ex.D.1, Ex.D.2, Ex.E,1 and Ex.E.2 were deposited on May 15, 1989 and which remained in his possession and the seals on them remained intact during the period them articles remained with him till they were sent for chemical examination. PW 13 Ota Ram was the Station House Officer, Police Station, Soorsagar, who registered the FIR Ex.P.1 on May 15,1989, regarding the two deaths occurred in the out-skirt of village Paldi. PW 16 Mota Ram was the Station House Officer, Police Station, Soorsagar, on May 19, 1989, before whom the written report Ex.P.7 was produced by Prabhu Ram Constable, who was sent to Police Station, Mandore, and on the basis of which the case No. 42/1989 u/s 302 IPC was registered and the FIR Ex.P.11 was recorded. PW 17 is Pooran Singh, Station House Officer, Police Station, Mandore, who conducted the investigation. PW 19 Jeet Singh was the Assistant Sub-Inspector posted at Police Station, Mandore, in whose presence, on May 20, 1989, accused Sawai Singh was arrested and the arrest memo Ex.P.12 was prepared. He is a witness to Ex.P.12, also. PW 20 is Tej Singh Constable, who is a witness to Ex.P.2 HAALAT MOKA and Ex. P.3 NAKSHA MOKA. PW 22 Balwant Singh Constable is a witness to the recovery of the stone Ex.P.2 and the site plan Ex.P.15. PW 23 Prabhu Singh is a Constable, who was posted at Police Station, Mandore, who took the sealed packets Ex.D. 1, Ex.D.2, Ex.E.1 and Ex.E.2 for FSL Examination to the State Forensic Science Laboratory, Jaipur, and who took the articles in a sealed condition and handed them over to the State Forensic Science Laboratory, Jaipur in the sealed condition.

There is no eye witness to the occurrence and the prosecution case purely rests upon the circumstantial evidence. The circumstantial evidence, over which the reliance has been placed by the prosecution, comprises of;:

(i) that the accused was last seen by PW 6 Smt. Vimla and PW 4 Poonam Nath with the deceased on May 13,1989, and thereafter deceased Mangu Singh and Bhanwar Singh were not seen alive; and

(ii) the extra-judicial confession made by the accused before PW 3 Hukam Singh-father of the deceased as well as the accused, and PW 7 Bahadur Singh-uncle of the deceased as well as the accused.

Before considering these two circumstances, we would first like to see whether the two deadbodies, which were found in the out-skirt of village Paldi in the Padat land (Magra) near the field of Biramji in village Paldi, were those of Mangu Singh and Bhanwar Singh and whether the deaths of these two persons were homicidal. Though the deadbodies were in a decomposed condition and were not identifiable, but as per the medical evidence, the deceased were aged approximately 14 years and 12 years and PW Hukam Singh-father of the deceased-has identified the deadbodies of his sons Mangu Singh and Bhanwar Singh by identifying their clothes, which were found on the deadbodies and which were recovered by the police. The deceased were living with their father at Jodhpur and he was specifically stated that he used to wash the clothes of his children and, therefore, he could identity their clothes. The identification of the clothes by the father cannot be said to be, in anyway, improbable, Moreover, the age of the two boys, as per the medical evidence also, finds support from the age of Bhanwar Singh and Mangu Singh and, therefore, we are of the opinion that so far as these two deadbodies are concerned, which were recovered from the Padat land in the out-skirt of village Paldi, were those of Mangu Singh and Bhanwar Singh. The doctor has found various fractures on the skulls of both the deceased. Though he has not given any opinion regarding the cause of deaths, but the evidence of PW 14 Dr. Dharmendra clearly shows that the deaths were the result of the injuries received by the deceased on their skull, which resulted in the fractures of skulls.

The first circumstance relied-upon by the prosecution is the evidence of last seen of the accused with the deceased on May 13,1989. The prosecution, to support its case, has produced PW 6 Smt. Vimla, PW 4 Poonam Nath, PW 3 Hukam Singh, PW 5 Roop Singh. So far as the evidence of PW 3 Hukam Singh and PW 5 Roop Singh are concerned, that is based on the information given by Smt. Vimla to thses two witnesses. Both these witnesses have stated that on May 14,1989, they were informed by PW 6 Smt. Vimla the land-lady of Hukam Singh-that Mangu Singh and Bhanwar Singh, on May 13, 1989, had gone with accused Sawai Singh and they have not returned so far. These witnesses have, therefore, not seen the deceased in the company of the accused and they have stated so merely on the basis of the information given to them by PW 6 Smt. Vimla. Smt. Vimla (PW B) has stated that on May, 13, 1989, Mangu Singh informed her at about 5.30 to 6.00 p.m. that he is going with his brother to Mandore and will return back in the morning. Mangu Singh and Bhanwar Singh both went with his brother and did not return thereafter. Hukam Singh (PW 3) came on the next date at about 8.00/9.00 p.m. and enquired about the children and she informed him that Mangu Singh informed her that he was going with his brother. This witness has, however, admitted that she had not seen the third brother with whom the deceased had gone. This witness has stated merely on the basis of the statement of Mangu Singh that he was going with his brother. As this witness has not seen the deceased in the company of the accused, therefore, it cannot be said, on the basis of the evidence of this witness, that the accused was last seen with the deceased on May 13, 1989.

The next witness regarding last seen of the accused in the company of the deceased is PW 4 Poonam Nath, who has stated that he knows accused Sawai Singh and had seen the accused alongwith the two children on May 13, 1989 at about 8.00 p.m. near Mandalnath, Mandore. He has, also, given the details of the clothes which were worn by those two boys. These three persons came there and asked him to given them water. On enquiry about the two children, accused Sawai Singh informed him that they are his brothers and they are going to Kaliberi, After two-three days, the deadbodies of the two children were found. In cross- examination, he has admitted that on that day, he had seen the accused Sawai Singh for the first time and he enquired about his name and he informed him that he is Sawai Singh R/o Dabri, but he did not enquire about the names of those two children. He, also, himself did not give water to the accused and the deceased. He has, also, not seen the deadbodies, This witness, though for the first time had seen the accused in the company of the two children but neither he identified the deadbodies as those of the two children who were with the accused nor he has identified the clothes which were found on the person of the deceased. He was not known to the accused previously and, therefore, merely on the basis of asking the name from the accused, it was not possible for this witness to have remembered the date, time and the name of the accused. We are, therefore, of the opinion that the evidence of PW 4 Pooran Nath regarding the last seen of the deceased in the company of the accused does not inspire confidence. In this view of the matter, we are of the opinion that the evidence, produced by the prosecution regarding the last seen of the accused in the company of the deceased, does not inspire confidence. The prosecution has failed to prove this circumstantial evidence.

The next circumstance, which has been relied upon by the prosecution is that of the extra-judicial confession made by the accused before PW 3 Hukam Singh-father of the accused and the deceased, and PW 7 Bahadur Singh-uncle of the deceased and the accused. It is contended by the learned Counsel for the accused- appellant that the evidence of extra-judicial confession is a very weak type of evidence and it. in itself, cannot form the basis of conviction. In support of his case, he has placed reliance over: The State of Punjab Vs. Bhajan Singh and Others, Learned Counsel for the appellant has further submitted that the extra judicial confession so made before PW 3 Hukam Singh cannot be read in evidence as it is hit by Section 24 of the Indian Evidence Act. According to Section 24 of the Indian Evidence Act a confession made by an accused person is irrelevant in criminal proceedings if it has been obtained by any inducement, threat or promise from the accused by a person in authority. There is no legal bar to convict an accused on the basis of voluntary confession made by him provided the confession made by the accused is voluntary and does not appear to be the result of any inducement, threat or promise. If the witnesses regarding the extra-judicial confession are reliable and the evidence is clear and convincing then the conviction can be based on the basis of the voluntary and true confession. It has been held by the Apex Court in the case of Maghar Singh Vs. State of Punjab, that the corroboration for the extra judicial confession is required only by way of abundant caution, but if the Court believes the witnesses, before whom the confession is made and it is satisfied that the confession was voluntary, then in such case, the conviction can be founded on such evidence alone. Thus, the conviction can be based on extra-judicial confession provided the Court comes to the conclusion that it is voluntary and true and is not the result of any inducement, threat or promise. If the evidence of extra-judicial confession is trust-worthy and comes from the person who is unbiased and related to the accused and there is no evidence which could indicate that he has motive to falsely implicate the accused, the extra judicial confession can be relied-upon and can form a basis for conviction even without corroboration, provided it is voluntary and true. Seeking corroboration would amount to casting a doubt on the verasity of the witnesses before whom the confession has been made (see State of U.P. Vs. M.K. Anthony, and Piara Singh and Others Vs. State of Punjab, Thus, the law does not require that the evidence of extra-judicial confession should, in all cases, be corroborated, though the evidence of extra-judicial confession has been treated as a weak type of evidence and it is not the rule of the law or prudence that unless it is corroborated, it cannot be acted-upon.

So far as the Supreme Court''s case, relied-upon by the learned Counsel for appellant, is concerned, in that case, the Hon''ble Supreme Court did not find the evidence produced by the prosecution, relating to extra-judicial confession, reliable and, therefore, did not act upon that extra-judicial confession. The facts of the case of State of Punjab v. Bhajan Singh (supra) are not similar to the facts in the present case and that judgment is not applicable in the present case because we are of the opinion that the witnesses PW 3 Hukam Singh and PW 7 Bahadur Singh are reliable witnesses. Hukam Singh is the father while Bahadar Singh is the uncle of the accused-appellant as well as the deceased and as they were the nearest relatives of the appellant, therefore, there was every possibility of blurting out the guilt by the accused before these witnesses as these were the only persons who could have saved the accused and in whom the accused could have reposed confidence. A lengthy cross- examination has been conducted by the accused appellant with these two witnesses, but their testimony could not be shaken and the evidence of these witnesses regarding the extra judicial confession remained intact. Thus, we are of the opinion that the accused-appellant made the extra judicial confession before these two witnesses.

The next ground, on which the extra-judicial confession has been challenged by the learned Counsel for the appellant is that the confession made by the accused-appellant before PW 3 Hukam Singh is not voluntary and is a result of inducement and promise. In this connection, he has placed reliance over the statement of PW 3 Hukam Singh, who has stated that when he enquired from Sawai Singh (accused-appellant) about his two sons, he denied his knowledge about their whereabout. But when he further asked him that he must speak the truth and no case will be instituted against him then the accused-appellant Sawai Singh told that he took Mangu Singh and Bhanwar Singh in the hillocks near Mandalnath and thereafter from Mandalnath he took them to an open place surrounded by a Kaccha wall. Mangu Singh and Bhanwar Singh slept there as they were tired and he killed both of them by stone. First he killed Mangu Singh and thereafter Bhanwar Singh by inflicting injuries on their head. PW 3 Hukam Singh and PW 7 Bahadur Singh are the father and uncle of the accused appellant. They were not the persons in authority as envisaged by Section 24 of the Indian Evidence Act, as they were not engaged in the apprehension, detention or prosecution of the accused. They were, also, not empowered to examine the accused and furthermore when the father had a doubt against his son and if he asked his son to disclose truely and correctly what had happened and no case will be instituted against him then that will not amount to any inducement or promise, and, therefore, it cannot be said that the confession was extorted from the accused. We are, therefore, of the opinion that the confession made by the accused before PW 3 Hukam Singh and PW 7 Bahadur Singh was voluntary and true and the circumstances do not indicate that it is inspired by any improper or colateral consideration. The evidence produced by the prosecution regarding the extra-judicial confession, which consists of the statement of PW 3 Hukam Singh (father) and PW 7 Bahadur Singh (uncle) is clear and convincing and these witnesses are reliable and the extra-judicial confession made by the accused before these two witnesses, is voluntary and true and on the basis of that, the accused appellant can be convicted.

Now, coming to the sentence which should be imposed on the accused-appellant; the sentence of death is to be imposed on the accused only in the rarest of rare cases and it is not such a case which falls in such a category where the accused should be awarded the capital punishment. The accused is a youngman of 30 years of age and the evidence produced by the prosecution is purely circumstantial evidence and there is no eye witness to the occurrence and, therefore, we are of the opinion that the sentence of imprisonment for life will serve the ends of justice.

In the result, we allow the appeal, filed by the accused appellant, in part; maintain the conviction of the accused- appellant Sawai Singh u/s 302 IPC, but reduce the sentence of capital punishment to that of imprisonment for life and a fine of Rs. 1000/-and in default of payment of fine further to undergo three months'' rigorous imprisonment. We, however, do not confirm the capital punishment imposed by the learned Additional Sessions Judge No. 1, Jodhpur, and reject the murder reference made by the learned Additional Sessions Judge No. 1, Jodhpur, for confirmation of the death sentence.