Vinod Kumar and Others vs State of Punjab

H.S. Bhalla, J.—This appeal is directed against the judgment dated 31.3.2004 passed by Additional Sessions Judge, Patiala, whereby he convicted appellants Vinod Kumar, Raj Kumar and Jatinder Singh under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life each and they were ordered to pay a fine of Rs. 1000/- each; in default thereof, they were further directed to undergo rigorous imprisonment for a period of six months each. They have been convicted u/s 364 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years each and they were ordered to pay a fine of Rs. 1000/- each; in default thereof, they were further directed to undergo rigorous imprisonment for a period of six months each. They were further convicted u/s 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years each and they were ordered to pay a fine of Rs. 500/- each; in default thereof, they were further directed to undergo for a period of three months each. The sentence of each appellant on each count was ordered to run concurrently.

A synoptical resume of the prosecution case is as under:

On 9.3.2000 Dharam Pal son of Shish Ram, resident of village Jhill, district Patiala came to Police Station Sadar, Patiala and moved an application to the Station House Officer disclosing therein that he is the son of Shish Ram and is resident of village Jhill, district Patiala. Desh Raj is his younger brother, who was the sole proprietor of M/s Hari Om Rice Mill, village Hasanpur, Sirhind Road Patiala. The District Food and Supply Controller, Patiala did not allot any paddy for keeping in the sheller of his brother Desh Raj for the year 19992000 and for this reason, his brother filed a writ petition before the High Court and this Court, vide order dated 8.12.1999, had passed an order for allotment of paddy. Thereafter, District Food and Supply Controller, Patiala, allotted paddy of Markfed to the sheller of his brother, but District Manager, Markfed, Shri H.S. Bains, did not allot paddy despite the orders passed by this Court and in consequence thereof, his brother Desh Raj moved a Contempt of Court Petition before this Court. After the arguments in the Contempt of Court Petition was heard and the decision in the matter was reserved, his brother Desh Raj had been receiving threats from the Rice Millers and Shri H.S.Bains, District Manager, Markfed. The said persons had sworn that Desh Raj is not to be allotted even a single bag of paddy. District Manager, Markfed, was also having a grouse that Des Raj had given an affidavit in the High Court for demanding Rs. 5 lacs as bribe and that the Rice Millers and the officers are bent upon to malign the reputation and business of Desh Raja. Intimation to this effect was given to higher police officers through telegrams and registered letters. His brother Desh Raj had also given intimation to the Chief Minister, Punjab, Secretary Food and Supply and other higher officers that 85000 bags of paddy have been placed in the premises of M/s Jai Naina Rice Mills, Alipur-Sirhind Road, Patiala, with the connivance of District Manager, Markfed, whereas the total storage capacity was of 45000 bags and on account of this, they have full belief that his brother Desh Raj had been kidnapped in connivance with S/Shri Ashwani Kumar, Field Officer, Markfed Patiala, H.S.Bains, District Manager, Markfed, Patiala, Gian Chand Bhardwaj and Rishi Goyal from the side of Rice Shellers. It has been alleged that on 7.3.2000 at about 5.00 P.M., his brother Desh Raj had departed from his car for Samana and village Todarpur, but he did not come back in the night. On 8.3.2000 they searched for Desh Raj in their relations, but to no effect. On 8.3.2000 they went to village Todarpur, where Joginder Singh son of Chanan Singh, resident of village Todarpur told them that Desh Raj had left for his house at about 8.45 P.M. on the same night. On 9.3.2000 when they searched for Desh Raj in Patiala and in the surrounding areas, they found the car of Desh Raj parked near sheller of village Hardashpur and no other person concerning Desh Raj was present in the car and finally, he disclosed that Desh Raj had been kidnapped consequent to the conspiracy hatched in connivance with S/Shri H.S. Bains, Ashwani Kumar, Gian Chand and Rishi Goel and his brother Desh Raj is in their possession.

On the basis of the aforesaid complaint, formal FIR No. 174 dated 9.3.2000 under Sections 365/34 of the Indian Penal Code was registered in Police Station Sadar Patiala. Thereafter, investigation was conducted by the Punjab Police. However, complainant Dharam Pal moved a petition before this Court that the investigation in this case be entrusted to the Central Bureau of Investigation. During investigation, it was found that Desh Raj had left his house on 7.3.2000 at about 5.00 P.M. for Samana and village Todarpur by his car, but he did not come back.

On 9.3.2000 car of his brother Desh Raj was found abandoned near the sheller of village Hardaspur, but Desh Raj was not in the car. His dead body was recovered from Bakhra canal on 15.3.2000. The Punjab Police had, however, already filed challan against Vinod Kumar, Raj Kumar @ Raju, Jatinder Singh @ Bittu and Jyoti Verma son of Mohinder Kumar, residents of Partap Colony, Samana. However, during investigation by the Central Bureau of Investigation, it was further revealed that Vinod Kumar, Raj Kumar and Jatinder Singh are already facing trial in the Court at Patiala and Jyoti Verma was under trial in the court of learned Chief Judicial Magistrate, Patiala, being a juvenile. Jyoti Verma volunteered to make full and true disclosure of whole of the circumstances within his knowledge and made a confessional statement u/s 164 of the Code of Criminal Procedure on 13.12.2001 before the learned Special Judicial Magistrate, CBI, Patiala. From this statement, it transpired that Jyoti Verma along with other accused is directly connected with the commission of the offence of the case. Thereafter, an application was moved in the Court of Chief Judicial Magistrate, Patiala, seeking tender of pardon to Jyoti Verma to enable the prosecution to examine him as a witness in the court of learned Additional Sessions Judge, Patiala, where trial against the other three accomplices of Jyoti Verma was pending who had confessed all the facts about the murder of Desh Raj. The learned Chief Judicial Magistrate, Patiala, decided this application on 13.6.2002 granting pardon to Jyoti Verma, who was declared approver on the condition that he would narrate sequence of events truthfully during trial in which murder was committed. After completion of investigation, challan against the accused was presented for an offence under Sections 302/365/201/34 of the Indian Penal Code.

Accused were charge sheeted under Sections 364/302/201/34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.

Prosecution, in order to prove its case, examined PW-1 Dr. Harish Tuli, PW-2 Constable-II Darshan Singh, PW-3 Head Constable Balwinder Singh, PW-4 Manjinder Singh, Finger Print Expert, PW-5 Jyoti Verma, PW-6 Jaspinder Singh Heir, Special Judicial Magistrate, CBI, PW-7 Rajinder Kumar, Senior Assistant of this Court, PW-8 Paramjit Singh, the then Chief Judicial Magistrate, Patiala, PW-9 Madan Lal Sharma, PW-10 Chanan Singh, PW-11 Head Constable Parkash Masih, PW-12 Head Constable Parkash Singh, PW-13 Head Constable Major Singh, PW-14 Dharampal, PW 15 Inspector Rajwinder Singh, PW-16 Jaswant Singh and PW-17 Sub Inspector Sakatar Singh.

Accused when examined u/s 313 of the Code of Criminal Procedure denied prosecution allegations in toto and pleaded innocence and categorically stated that they have been falsely implicated in this case.

We have heard the learned Counsel appearing for the parties and have also gone through the record of the case minutely.

Learned Counsel appearing for the appellants has, at the very outset, drawn the attention of this Court as to how and in what mode and manner the confessional statement, Ex. PW6/C, of Jyoti Verma was recorded by Special Judicial Magistrate, Patiala, (for short "Magistrate") (PW-6) on 13.12.2001, which according to the learned Counsel on the face of it, was not in the form of questions and answers, thereby not satisfying the procedural requirements as enshrined in Section 281 of the Code of Criminal Procedure (for short "the Code") and further thereby causing a grave doubt on genuineness of the confession, which was reduced into writing.

We have considered the submission made by the learned Counsel. Before we deal with this issue, we would like to observe whether the confession made by an accused can be regarded as voluntarily. We would like to emphasis that the act of recording confession u/s 164 of the Code is a very solemn act and in discharging his duties under this Act, the Magistrate must take care to see that the requirements of the provisions of Section 164 of the Code are fully satisfied and the confession shall be recorded as per the procedure provided in Section 281 of the Code for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record that he has explained to the accused that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him. The Magistrate is also required to certify that his confession was voluntarily made and was taken in his presence and hearing, and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him. But in the instant case, we find that the Magistrate has not adopted full procedure as required under the law and the questions have not been put to him whereas the whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in Section 24 of the Indian Evidence Act.

Before acting on the confession made before the Special Judicial Magistrate in terms of Section 164 of the Code, the Court must be satisfied that the procedural requirements as laid down in Section 281 of the Code are complied with. These are the safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such a confession. The record clearly spells out that Jyoti Verma was produced before the Special Judicial Magistrate, CBI, Patiala on 10.12.2001 and the CBI moved an application for recording his statement u/s 164 of the Code and the learned Magistrate passed an interim order by virtue of which he gave two days'' time to Jyoti Verma to re-think for making his statement, as his statement could be read against him and the matter was adjourned to 13.12.2001. On this date, Jyoti Verma appeared and he suffered a statement u/s 164 of the Code of Criminal Procedure and since he was willing to make a statement voluntarily, his statement was recorded u/s 164 of the Code by the Magistrate. As per sub Section (4) of Section 164 of the Code a memorandum was required to be given, according to which, it is required to explain that he is not bound to make a confession and if he does so that may be used as evidence against him, but that is not the end of the matter. When the learned Magistrate stepped into the witness box as PW-6, he proved the statement of Jyoti Verma, which was recorded by him as Ex. PW6/C. During the course of his cross-examination, he categorically admitted as under:

There is no order of my satisfaction on the day the statement of Jyoti Verma was recorded prior to its recording....

Section 164 of the Code clearly spells out that the Magistrate in particular should also ask the accused as to why he wants to make a statement, which surely shall go against his interest in the trial. The interim orders passed by the Magistrate on 10.12.2001 and 13.12.2001, the date on which confessional statement of Jyoti Verma was recorded, clearly spells out that no such query in this regard was made by the Magistrate to Jyoti Verma and further his statement, Ex. PW6/C, further spells out that it has not been recorded in questions and answers form, which is the requirement of law contained in the Code. It is settled law that the Magistrate in particular should ask the accused as to why he wants to make a confession, which surely shall go against his interest in the trial and he should be granted sufficient time for reflection. Unfortunately, in this case, the evidence of the Magistrate (PW-6) does not show that any such precaution was taken before recording the judicial confession. However, it is proved on record that he granted sufficient time for reflection and it is categorically admitted by him as reproduced above that on the date when his statement was recorded, no order of satisfaction was passed by him with regard to the fact as to why he wants to make a statement, which shall go against his interest in the trial. The learned Magistrate should have made a searching inquiry when Jyoti Verma appeared before him in order to ensure that there is no scope for doubt of any sort of extraneous influence even though he was not in custody, particularly when it is again categorically admitted by the Magistrate during the course of his cross- examination that on both the dates, i.e., on 10.12.2001 and 13.12.2001 Jyoti Verma was accompanied by the Investigating Officer.

Further elaborating this point that the confession was also not recorded in questions and answers form, which is required to be recorded as per law. We have perused the statement, Ex. PW-6/C made by Jyoti Verma before the Magistrate, which clearly spells out that it is not in question and answer form, meaning thereby that, the same was not recorded in accordance with the provision contained in the Code and the law laid down by the Apex Court in number of judicial pronouncements, but at the cost of repetition, we would also like to observe that from the relevant record and the statement of the approver, it becomes evident that the Magistrate did not specifically ask him as to why he wants to make a statement, which surely shall go against his interest in the trial and also did not inquire by putting a specific question to him as to whether he is suffering his statement voluntarily and then again whether there is any apprehension of torture or pressure from the police, particularly when he was being accompanied by the Investigating Officer on both the dates. The failure of Magistrate in not following due procedure as provided in law creates a ring of doubt around this confessional statement and then again Jyoti Verma appearing in the witness box as PW-5 has stated in his cross- examination that he filed an application to become an approver before the Magistrate. The said application was got typed by his grand father and uncle Suresh and it was signed by him. He did not know how to write and that his signatures were obtained on an application filed by them. He has further stated that the CBI people contacted him after he was released on bail and after application for tendering pardon was given and that his statement was not got recorded in the Court and that he signed the application and in the meantime, the CBI people met him at his house and that four CBI people met him at his house and that his signatures were obtained on the application. This further makes it clear that the statement of the approver was recorded under the influence of the CBI officials and was not made voluntarily and seeing from this angle, under the circumstances discussed above, the statement of Jyoti Verma recorded u/s 164 of the Code becomes unreliable and is liable to be discarded. As already discussed above, even if for the sake of arguments, it be presumed that the Magistrate has not followed the proper procedure in recording the confession of Jyoti Verma in questions and answers form, then in that event, no adverse inference can be drawn where there is a procedural defect, but at the same time the absence of any query to the approver as to why he wants to make a statement, which shall surely go against his interest in the trial, is certainly fatal to the prosecution. All these defects would certainly lose its importance in case the main gist of the confessional statement is corroborated by his statement given before the learned Additional Sessions Judge while appearing into the witness box as PW-5 supported with an independent evidence put forward by the prosecution.

In order to ascertain this fact, the first question that arises for consideration is whether the approver''s evidence can at all be relied upon to bring home the charge against the accused persons? It is no doubt true that mere object of granting pardon to an accused is to unfold the truth in grave offence so that other accused persons involved in the offence could be brought home with the aid of the evidence of the approver, but at the same time, the legislative mandate as well as safeguards enshrined in the provisions of the Code for the accused, cannot be thrown away merely because of gravity of the offence. The entire case of the prosecution rests on the platform of the approver Jyoti Verma, whose statement was recorded by Special Judicial Magistrate, Patiala (PW-6), who recorded his statement, Ex. PW-6/C u/s 164 of the Code of Criminal Procedure and this statement of Jyoti Verma is being challenged on all fronts by the learned defence counsel. It has rightly been observed that an approver is most unworthy friend and he having bargained for his immunity must prove worthiness for credibility in Court. Whether the evidence of an approver can be relied upon by the Court would depend upon the facts and circumstances of the case. When a heinous crime is committed in a manner leaving no clue nor any trace is available for its detection, pardon is granted to one of the accused persons for apprehending other offenders and for production of evidence, which otherwise is unobjectionable and then again all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true. Corroboration also could be both by direct or substantial evidence. There cannot be any dispute with the proposition that ordinarily an approver''s statement has to be corroborated in material particulars. The entire case is required to be examined in view of the observations made above.

With regard to the statement made by Jyoti Verma (PW-5) before Special Judicial Magistrate, Patiala (PW-6), there are many striking features causing a grave doubt on genuineness of confession, which was reiterated in writing. His confessional statement, Ex. PW-6/C was recorded by Special Judicial Magistrate, Patiala (PW-6) on 13.12.2001.

The law is well settled that the Court looks with some amount of suspicion on the evidence of an accomplice witness, which is a tainted evidence and even Section 133 of the Evidence Act clearly provides that the evidence of an accomplice witness should not be accepted, unless corroborated. At the same time, it must be remembered that corroboration must be in respect to material particulars and not with respect to each and every item however minor or insignificant it may be. To our mind, the requirement of corroboration as a rule of prudence which the Courts have followed for satisfying the test of the reliability of an approver and has not been crystalized into a rule of law. One accomplice cannot corroborate another. Similar view was expressed by the Court of Appeal in the case of the King v. Baskerville (1916) 2 KB 658, where the following observations were made:

We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.... The Corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.

Having regard to the decision referred to above, we would like to find out whether there is any corroboration and the next question would also arise if the evidence of the approver is excluded, the prosecution case can be held to be proved against the appellants beyond reasonable doubt?

The other evidence pressed into service by the prosecution is the evidence of extra-judicial confession alleged to have been made by accused Raj Kumar and Jatinder Singh before Jaswant Singh (PW-16), who is Sarpanch of village Jhill, is again not trust-worthy since we find that Jaswant Singh is the resident of village Jhill, whereas accused Jatinder Singh is the resident of village Bassi Pathana, whereas accused Vinod

Kumar and Raj Kumar belonged to village Ajeemgarh, district Patiala. Accused were not related to Jaswant Singh (PW-16) in any manner nor Jaswant Singh was known to them. It is categorically admitted by Jaswant Singh (PW-16) during the course of his cross-examination that he had never met the accused before 18.3.2000, when the accused are stated to have visited him for making their extra-judicial confession. He has further stated that he is not related to accused Jatinder Singh and is not on visiting terms with him and has seen accused Jatinder Singh for the first time on 18.3.2000 and that village Bassi Pathana is at a distance of 40 Kms from village Jhill. Meaning thereby that this witness had no special friendship with either of the accused. From this fact, it can safely be presumed that Jaswant Singh (PW-16) was not known to these accused, namely, Jatinder Singh and Raj Kumar. Then how they could visit him and seek his assistance by making extra-judicial confession of the crime before him. Moreover, crime is stated to have been committed at Samana and village Jhill is far away from the place of occurrence and if accused wanted to make extra-judicial confession, they would have approached the influential person of their village or at Samana itself.

After going through the statement of Jaswant Singh (PW-16), it is difficult to accept that the accused-appellants could have made extra judicial confessions before him. Accordingly, we are of the opinion that extra-judicial confession, allegedly, made by the appellants cannot be relied upon in connecting them with the commission of crime. This reasoning of ours is supported by the law laid down by the Apex Court in Balbir Singh v. State of Punjab 1996 (3) RCR 515 and a Division Bench judgment of this Court in State of Haryana v. Jagbir Singh 1996 (1) RCR 735. The material contradictions with regard to the weapon of offence have also added another nail to the coffin of the prosecution case.

In the present case weapon of offence is a trolley hook and Jyoti Verma (PW-5) in his statement recorded u/s 164 of the Code of Criminal Procedure has stated that he and Jatinder Singh accused sold the trolley hook. The said trolley hook was recovered from accused Raj Kumar @ Raju accused vide recovery memo Ex. PW-15/E. This is a material contradiction in respect of discovery of weapon of offence and falsifies the prosecution story. The case of the prosecution is again doubtful when we go through the statement of approver Jyoti Verma (PW-5) wherein he has stated in his confessional statement recorded u/s 164 of the Code of Criminal Procedure that he narrated the entire occurrence to his uncle, who told it to his aunt and to grand-father and thereafter, his grand father disclosed it to Comrade Bhoop Singh of his village and that both of them went to some officer at Patiala and that later on, he took him to Police Station in the evening and that on the way when Police was bringing him to Police Station, Raj Kumar was seen coming with his rehri and he (Jyoti Verma PW-5) told the police about Raj Kumar and police apprehended him and later on accused Vinod Kumar was apprehended, but as per the prosecution version, it was Jaswant Singh (PW-16) who is stated to have produced Raj Kumar and Jatinder Singh before the police after both the accused made extra-judicial confession before him. This contradiction in the prosecution case being very material, hits at the root of the prosecution case and if the version of Jyoti Verma (PW-5) in this regard is accepted, then the entire extra-judicial confession made before Jaswant Singh (PW16) falls to the ground.

The case of the prosecution is again doubtful since approver Jyoti Verma (PW-5) in his statement before the Court has stated that deceased Desh Raj was dead drunk when he is stated to have been killed with iron hook, but the prosecution sent his blood sample to Chemical Examiner, who in his report, Ex. PD, has reported that "No alcohol was detected in the contents of above mentioned Exhibit."

After analysing the entire evidence available on the record, we find that as required under the law, the testimony of Jyoti Verma (PW-5) has not been corroborated sufficiently in material particulars and there are lot of contradictions and improvements in his statement and therefore, the evidence of the approver Jyoti Verma (PW-5) cannot be acted upon.

On behalf of the appellant, it has been urged before us by the learned defence counsel that the judgment of the learned lower Court suffers from a serious infirmity in that, in dealing with the evidence of the approver, the learned trial Judge does not appear to have addressed himself to the preliminary question as to whether the approver is a reliable witness or not. The problem posed by the evidence given by an approver has been considered by the Courts on several occasions.

Keeping in view the arguments put forward by the learned defence counsel, we are of the opinion that an accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.

It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.

It is settled law and have been reiterated by the Apex Court number of times that the appreciation of of an approver''s evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver''s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.

From the evidence discussed above, we have no hesitation in holding that the evidence put forward by the prosecution does not at all corroborate the version made by the approver Jyoti Verma while making his confession before the Magistrate u/s 164 of the Code and then the deposition made by him as PW-5 before Additional Sessions Judge. Thus, on both the occasions, we find that there were lot of improvements in the statements made by Jyoti Verma and on the basis of which, the accused appellants cannot be connected with the commission of crime.

In view of the above discussion, prosecution has not been able to prove its case beyond reasonable doubt. Conviction and sentence recorded by Additional Sessions Judge, Patiala, is set aside. Appellants are acquitted of the charges framed against them. They shall be set at liberty forthwith, if not required in any other case.