- (1.) THIS is an appeal by Kedar Nath Singh and Bhim Singh both of whom have been convicted by the learned Additional Sessions Judge Kishangarh under sec. 302 read with sec. 34 of the Indian Penal Code and sentenced to transportation for life.
(2.) THE case for the prosecution is that on the 27th of October, 1953. report was lodged at the Police Kotwali, Kishangarh by one Mahmood that two hands and two legs of same human being were floating on the water of the moat of Kishengarh Fort. THE Sub-Inspector incharge of Kotwali after the recording of the report reached the place where the hands and legs were said to have been floating and got them taken out of water atonce. On further search a bag was also found. On investigation it came to light that one Deepchand Singh had been missing since 4th October, 1952 and he was seen going with Bhim Singh appellant to the house of the appellant Kedarmath Singh alias Bapulal on the said date, and that two of the fingers of Kedarnath Singh appellant were seen cut off since then. Both the appellants were interrogated and it is said that Kedarnath Singh confessed that he has called Deepchand to his house through Bhim Singh and that he with a sword and Bhim Singh with a dagger had killed Deepchand (hereinafter to be referred as the deceased) and the hands and legs of the deceased were cut of and were thrown in the most by Bhim Singh. It is alleged that a dead body identified to be that of the deceased was recovered from Kedarnath Singh's Nohra as his instance and a sword, a dagger, apart of trousers, Niwar and other articles were also recovered from his house. Blood stained earth is also said to have been scrapped from a room in Kedarnath Singh's house. As regards Bhim Singh it is said that he also confessed having committed the crime and a watch with its band and gold buttons belonging to the deceased were recovered from his house at the instance of Bhim Singh A cap belonging to the deceased and two fingers belonging to Kedarnath Singh appellant were also recovered. An inquest report was prepared and the dead body was sent for post mortem examination. According of the Medical Officer's report, who carried out the post-mortem examination, the death was due to the neck having been cut by some sharp edged weapon & other injuries were also sufficient to cause instantaneous death. Articles said to be belonging to the deceased were put up for identification and it is said that they were duly identified. THE statement of Kedarnath Singh was recorded on the 11th of October, 1952 and that of Bhim Singh on the 14th of Oct. , 1952 by Sri Gopal Narain Dhawan, Extra Magistrate, Kishengarh. THEy have been put forward by the prosecution as the confessions of the appellants and are Exs. 23 and 24 respectively on the record of the case. THE following articles were sent for chemical examination - (1) One shirt striped labelled Kedarnath Singh. (2) Pyjama white labelled Kedarnath Singh. (3) One Shirt 'chaukhana' labelled Bhim Singh. (4) One dhoti, 'green border' labelled Bhim Singh. (5) One bagger with signatures of Medical Officer, Kishangarh. (6) One sword with signatures of Medical Officer Kishangarh. (7) Niwar with coloured water with no label. (8) One small earthen pot with earth. According to the Chemical Examiner's report, all the articles except the sword were found positive for blood and according to the sero-logist's report Arts. Nos. 7 and 8 had human blood stains. After investigation the case was cha-llaned against both the appellants under sec. 302 I. P. C. in the court of the Sub-Divisional Magistrate, Kishengarh who committed them to take their trial under the aforesaid section before the learned Additional Sessions Judge, Kishengarh. Both the accused retracted their confessions in the court of the committing Magistrate as well as in the Sessions Court. Bhim Singh however stated that on the morning of the 4th October, 1952, he had been to call the deceased to the appellant Kedarnath Singh house at the instance of Bilas Kuar, brother's wife of Kedarnath Singh. The deceased, however, did not come to Kedarnath Singh's house at the time but promised to see Bhim Singh in the evening. He stated that he did not know whether in the evening the deceased visited Kedarnath Singh's house, He admitted that the buttons and the watch alleged to be belonging to the deceased were recovered from his house at his instance but he did not admit that they belonging to the deceased. He stated that they were given to him by the appellant Kedarnath Singh. As regards the called confession, he said that it was made due to the fear of the Kotwal because the letter had threatened him that if he did not make a confession, a remand would be taken and he word be punished. Kedarnath Singh said that he had made the confession due to fear of the police and that it was false. He admitted that the shirt and the pair of trousers which were recovered from his room belonged to him and said that they might have been smeared with blood of his injured hand. He admitted that two fingers were he but said that they had been cut by his flour machine. He stated that the watch and the buttons produced in the case were his. No direct evidence was produced in the case. The learned Additional Sessions Judge, however, based the conviction of the appellant on circumstantial evidence alone which in the case of Kedarnath Singh included his retracted confession. We have heard Sri A. D. Bareth on behalf of the appellant and Sri C. B. Bhargava Deputy Government Advocate on behalf of the State. Mr. Bareth has attacked the judgment of the lower court on the following grounds - (1) that there was no direct evidence to show that either of the two accused killed Deepchand deceased; (2) that the circumstantial evidence relied upon by the learned Additional Sessions Judge was altogether insufficient to bring home the charge of the murder to either of the two accused; (3) that it was not established that the watch with its band and the buttons recovered from the place of Bhim Singh accused belong to the deceased; (4) that the so called confession of Kedarnath Singh on which the lower court had relied was neither voluntary nor true and there was no independent evidence to corroborate the said confession in material particulars; (5) that the lower court has wrongly relied upon the circumstance of Kedarnath Singh's finger having been found cut for the conviction of the accused Kedarnath Singh; as he has given a very satisfactory explanation how his fingers were cut; (6) that the lower court was altogether unjustified in making use of the statement of Mst. Bilas Kaur under sec. 164 of the Criminal Procedure Code. Her statement before the committing Magistrate was wrongly admitted under sec. 33 of the Evidence Act. It was found on chemical examination that the sword with which Kedarnath Singh is said to have murdered the deceased had any human blood stains; (7.) that there was no charge under sec. 302 read with sec. 34 I. P. C. and the learned Additional Sessions Judge was therefore, unjustified in convicting both the accused under sec. 302 by virtue of the sec. 34 and it has resulted in prejudice to both the accused. We take up the point No 6 first. It has already been decided by this court by its judgment dated 7-4-55, that the evidence before the committing Magistrate was wrongly admitted under sec. 33 of the Evidence Act. We need not, therefore,say nothing more on this point. So far as the question whether the lower court was justified in making use of the statement of Mst. Bilas Kaur under sec. 164 of the Crimi-nal Procedure Code is concerned, we can say without any hesitation that that statement should not have been read as substantive evidence by the learned Additional Sessions Judge. He has himself said in tine part of his judgment that authorities cited before him showed that statements under sec. 164 are not to be used as substantive evidence We do not know how in the end learned Additional Sessions Judge made use of this statement of Mst. Bilas Kaur for the conviction of the accused. We consequently rule out that statement from consideration. It has now to be seen whether the remaining evidence which has been relied upon by the learned Additional Sessions Judge in convicting Kedarnath S:ngh and Bhim Singh was sufficient for conviction in the case of each of the two accused. So far as Bhim Singh is concerned, we have no hesitation in holding that the evidence is altogether in sufficient. His so-called confession, Ex. P. 24, has been ruled out by the learned Additional Sessions Judge himself and rightly so as it was exculpatory. His conviction is based simply on the four following pieces of evidence - (1) the statement of Mst. Bilas Kaur recorded under sec 164 of the Criminal Procedure Code (Ex. P. 5); (2) the confession of the co-accused Kedarnath Singh; (3) the statement of Mst Bilas Kaur, dated 12th Dec, 1952 (Ex. P. 26) recorded before the committing Magistrate, and (4) the recovery of cap (Ex. P. A. 3) at his instance and the recovery of buttons and watch (Ex. P. A 1 and Ex. P. A 2) respectively) from his house. It has already been said that the statement of Mst. Bilas Kaur in the committing Magistrate's court was wrongly admitted under sec. 33 of the Evidence Act. It has also been held that the statement of Mst. Bilas Kaur under sec 164 too could not be made use of Thus out of the four pieces of evidence which the lower court has relied upon, the two go away. There remains only the confession of the accused Kedarnath Singh and the recovery of cap (Ex. P. A 3) and buttons and watch (Ex P. A. 1 and Ex. P. A. 2) respectively. So far as the recovery of buttons Ex. P. A. l and watch Ex. P. A. 2 are concerned, we are not satisfied on the evidence on the record that they were proved to be the properly of the deceased. The evidence of identification of the said two properties is that of Jawahar Singh P. W. 3 Chanderbai P. W. 9 and Fakir Mohd. P. W. 10. Jawahar Singh identified the two articles before the Magistrate who carried out the identification proceedings. The evidence of Jawahar Singh has not been believed on this point by the learned Additional Sessions Judge himself and he has given good reasons for that. We are left only with the evidence of Chanderbai P. W. 9 (mother of the deceased) and Fakir Mohd. P. W. 10. The evidence of Chanderbai and Fakir Mohd. has been believed by the learned Additional Sessions Judge. Mst. Chanderbai was confronted with her statement before the committing Magistrate and had to admit that she had stated there that the buttons and watch did not seem to be those of the deceased. She explained this statement by saying before the trial court that she had said so because she was over-whelmed with grief when she was examined in the committing Magistrate's court. However, this explanation does not appear to be convincing. If she was really over-whelmed with grief,she could have very well stated before the committing Magistrate that on account of her grief she was not properly able to identify the two articles. It is also not believable that she might have presence of mind enough to depose about other things but only at the time of the identification of the two articles grief overwhelmed her all of a sudden and incapacitated her from identifying these articles. Before the Magistrate also, who held identification proceedings, the watch was mixed up with certain other watches which had their winding keys alright while the winding key of this watch was in a broken condition, and was not attached to the watch at that time. About buttons, the Magistrate was not in a position to say whether the buttons which were in court were the same buttons which had been put up for identification before him. Mst. Chanderbai's evidence was not sufficient to prove that the watch and buttons belonged to the deceased, As regards Fakir Mohd. P. W. 10, he came forward as the partner of the deceased but he did not mention it in his statement before police nor had he said there anything about the buttons and the watch nor anything about the cap. He stated that the cap was not of any special design. It was just an ordinary cap. The identification of this witness about any of the above three articles could not be of any value. Bhim Singh has given a explanation that he had borrowed these articles from Kedarnath Singh and Kedarnath Singh has admitted it. Under these circumstances the recovery of these articles from the possession of Bhim Singh cannot be held to be an incriminating factor. This piece of evidence also has been wrongly relied upon by the learned Additional Sessions Judge. Coming to the last question it is necessary to see whether support for the conviction of Bhim Singh could be drawn from the confession of the accused Kedarnath Singh. There is a recent ruling of the Supreme Court in the case of Kashmira Singh vs. The State of Madhya Pradesh (1) in which the value of confession of an accused against his co-accused has been discussed. The following observations of their Lordships of the Privy Council in the case of Bhuboni Sahu vs. The King (2) were quoted with approval - "it is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination. It is obviously an evidence of a very weak type. . . . . . . . . It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of these infirmities. " After quoting these observations of the Privy Council, their Lordships say ''they (their Lordships of the Privy Council) stated in addition that such a confession cannot be made the foundation of the conviction and can only be used in support of other evidence. In view of these grounds, it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question, is in what way can it be used in support of other evidence ? Can it be used to fill in missing gaps ? Can it be used to corroborate an accomplice or, as in the present case, a witness who though not accomplice, is placed in the same category regarding credibility because the judge refuse to believe him except in so far as he is corroborated". Replying the question posed by their Lordships themselves, their Lordships observed as follows: "in our opinion the matter was put succinctly by Sir Lawrence Jenkins in Emperor vs. Lalit Mohan (3) where he had said that such a confession can only be used to lend assurance to other evidence against a co-accused or to put in another was as Reilly J. did in In re Periyaswami Moopan (3 ).- "the provision goes no further than this; where is evidence against the co-accused sufficient if believed, to support his conviction, then the kind of confession described in sec. 30 may be thrown into the scale as an additional reason for believing that evidence. " Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind 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 prepare to accept. The confession of Kedarnath Singh cannot, therefore, be used against Bhim Singh except for the purposes mentioned above. It has already been said, the other evidence which has been relied upon by the Additional Sessions Judge for the conviction of Bhimsingh except the recovery of cap, buttons and watch is inadmissible against him. The cap was an ordinary cap without any speciality about it and its identification as the cap of the deceased was of no value. As regards the buttons and watch, it has been held above that it was not satisfactorily proved that they were the buttons and watch of the deceased. Under these circumstances, out of the evidence relied upon by the learned Additional Sessions Judge, there remains no evidence from which it may be said that Bhim Singh committed any offence. The mere confession of the accused Kedarnath Singh cannot therefore, be thrown into scale against Bhim Singh.
(3.) WE may also make a mention of another piece of evidence which has not been relied upon by the learned Additional Sessions Judge. That evidence consists of the statements of Mst. Chandarbai P. W. 9 and Fakir Mohd P. W. 10. According to Chandarbai, on the fateful day Bhim Singh came to the house of the deceased in the forenoon and took him along with him. Thereafter the deceased never returned and afterwards his legs and hands and other parts of his body were recovered According to Fakir Mohd, the deceased was seen going along with Bhim Singh from the side of Deepchand's house and when asked the deceased said he was going to Kedarnath Singh's house. The witness actually saw Deepchand and Bhim Singh entering the house of Kedarnath Singh and thereafter the deceased was no longer seen alive. He was them going inside Kedarnath Singh's house slightly before the Harijan procession which passed though his shop that day. The time which Chanderbai has given is about the same time which Fakir Mohd, has given. There is no reason to disbelieve the evidence of these two witnesses on this point and to our mind it fully proved from their evidence that Bhim Singh took the deceased to Kedarnath Singh's house on the Harijan Day i. e. Kartik Badi 1, Svt. 2009 corresponding to 4th of October, 1952, sometime in the forenoon. The question, however, is whether this circumstance alone is sufficient to prove that Bhim Singh had any hand in the Killing of deceased. To this our answer is unhesitatingly in the negative. Having considered all the evidence against this accused we are unable to agree with the earned Additional Sessions Judge that Bhim Singh could be convicted of the murder of the deceased or for any other offence in connection with the killing of the deceased. Taking up the case of Kedarnath Singh the following evidence has been relied upon by the learned Additional Sessions Judge for his conviction. (1) the confession of Kedarnath Singh; (2) recovery of dead body at the instance of Kedarnath Singh from the compound of the house of this accused: (3) the recovery of dagger PA. 7 and the sword P. W. 6 from the house of Kedarnath Singh who led the investigation party there on that occasion; (4) the statement of Mst. Bilas Kaur, Ex. P. 4 recorded under sec. 164 Criminal Procedure Code and her evidence before the committing Magistrate, admitted under sec, 33 of the Evidence Act; (5) the recovery of buttons Ex. P. A. 1 and watch, Ex. , P. A. 2, from the possession of Bhim Singh and admission by both the accused that they were given by Kedarnath Singh to Bhim Singh ; and (6) the fingers of right hand of Kedarnath Singh having been found cut. So far as the statement of Mst. Bilas Kaur, Ex P. 4, recorded under sec 164 Cr. P. C. and her statement before the committing Magistrate are concerned, we have already held that they were inadmissible. We shall, therefore, rule these two pieces of evidence out. So far as the recovery of watch and buttons is concerned, we have said above that we are not satisfied that they were the properties of the deceased. This evidence too, therefore, goes out. Thus out of the evidence relied on by the lower court we are now left only with the following evidence, (1) the confession Ex. P. 23 of Kedarnath Singh. (2) the recovery of sword and dagger Exs. P. A 6 and 7 respectively from the house of the accused Kedarnath Singh, (3) the recovery of the dead body at the instance of Kedarnath Singh from the compound of Kedarnath Singh's house and (4) the fingers of the right hand of Kedarnath Singh having been found cut. We shall take up first the confession of Kedarnath Singh, This confession was retracted by Kedarnathsingh in committing Magistrate's court as well as in the Sessions Court There is, however, the evidence of Gopal Narain Dhawan, Magistrate, who recorded the confession that all precautions were taken to ascertain that Kedarnath Singh was making a voluntary statement and not on account of any fear, threat of promise. Before the confession was recorded certain preliminary questions were put by the Magistrate to the accused. He was warned that he was not bound to make any statement and if he would make one it might be used against him. He was asked whether he was making the statement voluntarily of due to some inducement, threat or promise. He replied that he was making it voluntarily and not on account of any threat, inducement or promise. He was asked whether he knew that he was standing before a first class Magistrate and he replied in the affirmative. He was asked if any police employee was standing in the court in near about it or out-side it and he clearly replied that he has seen that there was no police employee there. After this he was asked to say what he wanted to say and he got his statement recorded. At the end there is a certificate by the Magistrate that he had explained to Kedarnath Singh that he was not bound to make a confession and that if he did make one it might be used as evidence against him. Thereafter the Magistrate certified that he believed that the confession was voluntarily made and that it was taken in his presence and hearing and was read over to Kedarnath Singh and admitted by him to be correct and contained a full and true account of the statement made by Kedarnath Singh. There is no reason to doubt the record made by the learned Magistrate or the evidence given by him before the trial court. The statement of Kedarnath Singh was recorded on the 11th of September, 1952, and he was given two days' time to think over the matter since he was first produced before the Magistrate for the recording of the confession During this interval he remained in judicial custody. The accused does not say that he was subjected to any physical torture of any kind. All that he says is that he had made confession due to fear of police as he had been told that all the members of his family would be arrested unless he made a confession. It is not believable that if any such threat had been given to the accused he would not have stated so before the Magistrate who recorded his confession specially when he was given two days' time to think over the matter and during that interval he remained in judicial custody. Far from making any complaint about any threat by the police he clearly stated before the Magistrate that he was making the statement altogether voluntarily and not under any threat or promise. The explanation given by the accused is an after thought and there is not the least reason to doubt the voluntary nature of the confession. Learned counsel for the accused seems to have put certain questions like the following to the Magistrate Mr. Dhawan in cross-examination - (1) Did you first hear the whole story of the accused before writing the same? (2) Did you ask the accused when the police first questioned him? (3) Did you question the accused whether he was detained anywhere by the police before he was taken into custody and, if so, in what circumstances? and (4) Did you ask the accused whether he was induced or urged by the police to make a formal confession? ;