State of
Punjab Vs. Gurdeep Singh [1999] INSC 323 (8 September 1999)
Umesh
C Banerjee, K.T.Thomes, D.P.Mohapatro BANERJEE,J.
The
short question involved in the matter in issue before this Court is the
justifiability of the order of acquittal passed by the High Court by reason of
lack of probative value of an extra judicial confession, as found by the High
Court, in an appeal against conviction and sentence under section 376 read with
sections 302 and 201 of the Indian Penal Code. Admittedly, there is no direct
evidence available on the record so as to attribute the commission of crime to
the respondent herein but it is only on the basis of an extra judicial
confession that the learned Sessions Judge thought it fit to pass the sentence
for life imprisonment, which stands reversed by the High Court.
Confession
in common acceptation means and implies acknowledgment of guilt - its
evidentiary value and its acceptability however shall have to be assessed by
the Court having due regard to the credibility of the witnesses. In the event
however, the Court is otherwise in a position having due regard to the
attending circumstances believes the witness before whom the confession is made
and is otherwise satisfied that the confession is in fact voluntary and without
there being any doubt in regard thereto, an order of conviction can be founded
on such evidence. The observations of this Court in the case of State of Uttar Pradesh v. M.K. Anthony (1985 Crl. Law
Journal 493) seems to be rather apposite in this context. In paragraph 15 of
the Report, this Court observed as below: "There is neither any rule of
law nor of prudence that evidence furnished by extra-judicial confession cannot
be relied upon unless corroborated by some other credible evidence. The Courts
have considered the evidence of extra judicial confession a weak piece of
evidence. If the evidence about extra judicial confession comes from the mouth
of witness/witnesses who appear to be unbiased, not even remotely inimical to
the accused, and in respect of whom nothing is brought out which may tend to
indicate that he may have a motive for attributing an untruthful statement to
the accused; the words spoken to by the witness are clear, unambiguous and
unmistakably convey that the accused is the perpetrator of the crime and
nothing is omitted by the witness which may militate against it, then after
subjecting the evidence of the witness to a rigorous test on the touchstone of
credibility, if it passes the test, the extra judicial confession can be
accepted and be the basis of a conviction. In such a situation, to go in search
of corroboration itself tends to cast a shadow of doubt over the evidence. If
the evidence of extra judicial confession is reliable, trustworthy and beyond
reproach the same can be relied upon and a conviction can be founded
thereon." Incidentally, this Court in the case of Narayan Singh & Ors.
v. State of M.P. ( AIR 1985 SC 1678) expressly
observed that it is not open to any court to start with a presumption that
extra judicial confession is a weak type of evidence. In paragraph 7 of the
report this Court observed:
"Apart
from this there is the evidence of PWs 5 and 9 who state on oath that one of
the accused admitted before them that he had murdered the deceased. The learned
Sessions Judge has brushed aside their evidence by presuming that their
statements constituting an extra judicial confession is a very weak type of
evidence. This is a wrong view of the law. It is not open to any court to start
with a presumption that extra judicial confession is a weak type of evidence.
It would depend on the nature of the circumstances, the time when the
confession was made and the credibility of the witnesses who speak to such a
confession.
In the
instant case, after perusing the evidence of PWs 5 and 9 we are unable to find
anything which could lead to the conclusion that these independent witnesses
were not telling the truth. The evidence of these two witnesses (PWs 5 and 9)
which lends support to the evidence of PW 11 was sufficient to warrant the conviction
of the accused. The Sessions Judge has committed a grave error of law in analysing
and appreciating the evidence of PWs 5 and 9 and brushing them aside on
untenable grounds." In Baldev Raj vs. State of Haryana ( AIR 1991 SC 37)
this Court further stated the law as below:- "An extra judicial
confession, if voluntary, can be relied upon by the Court along with other
evidence in convicting the accused. The value of the evidence as to the
confession depends upon the veracity of the witnesses to whom it is made. It is
true that the Court requires the witness to give the actual words used by the
accused as nearly as possible but it is not an invariable rule that the Court
should not accept the evidence, if not the actual words but the substance were
given. It is for the Court having regard to the credibility of the witness to
accept the evidence or not. When the Court believes the witness before whom the
confession is made and it is satisfied that the confession was voluntary,
conviction can be founded on such evidence. Keeping these principles in mind,
we find that the confession has been properly accepted and acted upon by the
Courts below and there is no scope for any doubt regarding the complicity of
the appellant in the crime. The confession of the appellant was voluntary. The
testimony of PW 4 and PW 5 being responsible persons could not be doubted in
the absence of any material to show that they had been motivated to falsely
implicate the appellant. The very presence of the appellant and his father with
the party of Ishar Dass throughout the operation up to lodging of complaint at
the police station dispel any suspicion against the prosecution case and
clearly point to the truthfulness of the same. We are, therefore, unable to
find any infirmity in the confession which has been accepted and relied upon by
the Courts below." While it is true that in Narayan Singh's case (supra)
this Court expressly observed that it is not open to any Court to start with a
presumption that extra judicial confession is a weak type of evidence, a later
decision of this Court in Kavita vs. State of Tamilnadu (1998 (5) JT SC 151)
stated that in the very nature of things it is a weak piece of evidence. In
paragraph 4 of the Report this Court in Kavita's case (supra) observed:
"There
is no doubt that convictions can be based on extra judicial confession but it
is well settled that in the very nature of things, it is a weak piece of
evidence. It is to be proved just like any other fact and the value thereof
depends upon the veracity of the witness to whom it is made. It may not be
necessary that the actual words used by the accused must be given by the
witness but it is for the Court to decide on the acceptability of the evidence
having regard to the credibility of the witnesses.
Apparently
there may seem to be some expression of divergence but on the totality of the
situation, question of there being any difference of expression of opinion does
not arise, since Kavita's case (supra) in no uncertain terms laid down that the
evidentiary value of the extra judicial confession depends upon the veracity of
the witnesses to whom it is made and it is for the Court to decide on the
acceptability of the evidence having regard to the credibility of the
witnesses. Having dealt with the basics of the legal issue as regards
evidentiary value of extra judicial confession and adverting to the factual
matrix of the matter at this juncture, the prosecution case as made out is to
the following effect: The deceased being a young girl of 10 years along with
her brother Sandeep had gone to the house of the accused around 7.30/8.00 p.m.
on 18th November, 1989 for the purpose of watching television. The evidence
disclosed that Rajinder Singh who happened to be father's sister's husband did
also come to pay a visit to the house of the deceased's father and it so
happened and as the evidence records that Rajinder Singh also went to the house
of the accused for watching television along with the two little children: The
factual score depicts that the brother continued to watch the television but
the elder sister left the television room to go back to her house.
Rajinder
Singh again as the evidence disclosed came out as well and found that the
accused in a drunken state following the deceased on her way home around 8 O'
clock in the evening. The next piece of evidence is rather curious: the
deceased girl does not reach home but Rajinder Singh reaches home, had his meal
along with the parents of the deceased.
The
younger brother who also went out for television watching in the house of the
accused, returned home and joined the parents and the uncle for the meal -
there was, however, no anxiety for the missing daughter of the family and it
was only after Rajinder Singh left for his house which is at the next village
and around 10 to 15 k.m. away, the deceased's father Jaswant Singh tried to
effect a search about the daughter - Jaswant Singh, in a very natural way, went
to the house of the accused and found the accused and his brother to be very
heavily drunk in the house itself and thus had to come back without much
information about the missing daughter. The evidence goes on to record that
next morning the body of the deceased was found in the open verandah of a
building belonging to one Smt. Ajmer Kaur.
In her
evidence Smt. Ajmer Kaur, being PW 4 stated that when she had gone to the
verandah for taking `turi' for the cattle, found the dead body of the child
lying under the heap of `turi' and on such a find immediately informed the
girl's father Jaswant Singh. On this score the father of the deceased stated
that he on being informed cleared the `turi' and saw the dead body of his
daughter lying there fully naked and her salwar was lying near her. The father
stated that she was smeared with blood and was dead and thereafter requested
the son of the Sarpanch to keep a watch on the body and went to the police
station to lodge the report alongwith the Sarpanch. The police arrived and the
usual formalities were completed and FIR was lodged and on completion of the
inquest sent the body for post mortem examination. Dr. H.N. Sharma, P.W.5 found
the following injuries on the person of the deceased:- "(1) In front
aspect of the neck, 1 c.m. above the midline 2 abrasions with dimensions of 2X3
cm were seen. On disection underline tissues were found to be swollen. Clotted
blood was seen in tissues. The thyroid cartrilige on right laminu was showing
fracture line.
(2)
The parienial area showed toori strawe. In the vulvel area blood clot was seen,
hymen found ruptured, the vagine admitted two fingers, posterior vaginal wall
near commisuru showed lacaration. Vaginal walls were congested.
Labia minore
were found congested and torn, two swabs were taken each from vagine and
cervix. They were smeared on slides and sent to Chemical Examiner Govt. of
Punjab Patiala.
The
upper part of chest had prominent veins. The laryogal cavity showed clotted
blood. Right side of heart found full of dark coloured blood. Stomach was found
empty, bladder contained around 20 ml. of urine." The post mortem Doctor opined
that death was caused due to injury No.1. He also found that the deceased was
subjected to rape before the murder and the age of the deceased was between 7
to 11 years- the facts above cannot but be ascribed to be not only serious but
ghastly in nature. While it is true that the social aberration which results
from the offence is devastating by reason of the nature of the offence
committed on a very young girl and the offenders cannot possibly obtain any
support or mitigating effect from courts of law, we however, remind ourselves
that the law of the land shall have to be administered in accordance with the
principles of criminal justice. At this juncture, another aspect of the matter
ought to be noted, namely, an extra judicial confession by the accused Gurdeep
Singh to one Jaspal Singh (P.W.7). The extra judicial confession runs as below:
"that
20 days ago I had committed a wrong act.
Manpreet
Kaur her younger brother Sandeep Singh and their relation had come to see
television at our house. I came from outside after taking liquor. Then I was
served run by my brother who is in the army. When Manpreet went out of the
house, I followed her. Then I caught hold of her took her in the veranda where
grain husk was lying. I then untied string of salwar, committed rape on her and
when she raised alarm, I gagged her mouth with her shawl. When I thought that
she will narrate what had happened to her, then I throttled her and killed and
I concealed her body in the heap of grain husk and then I ran away towards a pond
and since then I have been roaming about. You are known to Jaswant Singh,
father of girl. I had committed this act in the influence of liquor and get me
pardon from them as they are your relatives." It is the evidence of Jaspal
Singh (PW 7) that he is driving taxi at Ropar and the accused was also driving
the car of a Sant which was also being used as a taxi and used to park his car
in the same parking space as used by Jaspal Singh. It is the categorical
evidence of Jaspal Singh that on 12th December, 1989 i.e. after about 24 days of the
incident the accused came to him and told him that he had committed rape on Manpreet
Kaur and murdered her. The said evidence of Jaspal Singh was accepted by the
learned Sessions Judge by reason of the fact that it was corroborated by the
evidence of Rajinder Singh who had stated that he found the accused following
the deceased in a drunken condition. But that finding was negatived by the High
Court on the ground that extra judicial confession after long lapse of time is of
no consequence. The High Court reminded itself that circumstantial evidence
should not only be consistent with the guilt of the accused but should be
inconsistent with his innocence. The circumstances must be of such a nature and
should form a complete chain as to be capable of supporting the exclusive
hypothesis that the accused is guilty of the crime of which he is charged.
There is no denial of the fact that extra judicial confession is admissible in
evidence and the court in appropriate cases can rely thereon to the extent of
even basing conviction of the accused. In a long catena of decisions of this
Court, the settled position of the present day is that the extra judicial
confession by itself if, otherwise in conformity with the law, can be treated as
substantive evidence, and in appropriate cases it can be used to punish an
offender. We , however, hasten to add here that this statement of law stands
qualified to the extent that the Court should insist on some assuring material
or circumstance to treat the same as piece of substantive evidence. Having thus
stated the law and general principles as to the extent of reliance to be placed
on the circumstantial evidence, let us at this juncture turn on to the factual
score in a little bit greater detail for the purposes of the assessment of the
entire situation as to whether extra judicial confession noticed above can have
any credence or evidentiary value. But before so doing certain basic features
in the matter in issue ought to be noted.
The
features being: (i) the deceased, a young girl of 7 to 10 years along with her
brother had gone to the house of the accused in the evening for television
viewing; (ii) Rajinder Singh who happened to be the brother-in-law of the
deceased's father, also deemed it fit to go and watch the television programme
rather than stay with the relatives and have some chit chat with the
brother-in-law; (iii) Rajinder Singh also went out of the Television Room
shortly after the deceased left the house of the accused and found that the
deceased was being followed by a drunken man - it is a definite piece of
evidence in the matter that the house of the deceased and that of the accused
is not very far from each other ( may be two or three houses in between); (iv) Rajinder
Singh being an elderly man - at least not a teen ager - allowed a girl of 7 to
10 years, being a close relative, to be followed by a drunken man and quietly
went back to the deceased's house without any utterance as regards the event
witnessed by him - had his meal with the brother-in-law and went back to the
village: The facts above, have been very strongly criticised by the High Court
and we find sufficient justification in that regard since normal reaction of a
relative, would be to take the girl home or bring the father on to the sight
immediately or even after going back to the deceased's house narrate the event
of the girl being followed by a drunken man as also to go out with the father
in search of the girl afterwards alongwith the deceased's father: It is
difficult to treat it as a conduct in consonance with the normal human behaviour
of a relative having seen the young girl of 10 years being followed by a
drunken person. Human relationship cannot possibly have the same kind of
reaction as has been depicted by Shri Rajinder Singh and it is on this score
that the learned Advocate for the respondent herein also strongly commented
upon the introduction of this particular witness in order to have a semblem of
corroboration at best so far as the extra-judicial confession is concerned. The
recovery of the body of the deceased by itself does not find any link or in any
way connect the accused with the commission of the offence.
Records
depict that Sandeep being the younger brother was not examined and the learned
Advocate in support of the appeal, also has no answer. Turning attention on to
the issue of probative value and total evidenciary impact in the matter, one
cannot but return a verdict of non- credit worthiness of such a piece of
circumstantial evidence: 24 long days have elapsed - and it is only then the
investigating officer was able to locate a fellow Taxi driver, who appears to
be the brother-in-law of the brother-in- law of father of the deceased. The
evidence of Rajinder Singh thus becomes important - but is it worthy of such an
importance - The Sessions Court has exaggerated its effect, whereas the High
Court has completely over-turned it and described the same as a wholly
unreliable and untrust- worthy evidence. We have herein before dealt with this
particular piece of evidence - Can the reaction of a close relative be in the
manner as Rajinder Singh had - The answer cannot but be in the negative - where
is the anxiety to look for the girl - where is the desire to see that nothing
untoward should happen - a minor girl of 10 years being followed by a drunken
man and thereafter the girl does not come back home till such time he finishes
the meal: Even thereafter not a word to the father but he quietly went back to
his own village: It is not a trust-worthy evidence to rely on for corroboration
to the extra-judicial confession to complete the chain of circumstances. If the
above pieces of evidence are kept aside - there is no other available evidence
which can even remotely connect or point towards the guilt of the accused.
There is no dispute that the deceased was raped and murdered but that would not
be enough for the prosecution to rope in the accused without some such evidence
depicting unmistakably to the guilt of the accused.
The
next important aspect is the credibility of the person who spoke about the
confession. He is a taxi driver and no part of evidence records that he has had
a clout with the Police - It is not in evidence as to the period of friendship
between accused and the witness - Indeed a very close friend may be taken into
confidence and a confession effected - Commission of an offence of rape on a
minor child and thereafter eliminating the victim girl from this world could
not have been talked of or discussed with any or everybody so casually. There must
be some cogent reasons for making a confession of this nature. The only reason
available in evidence for affording an occasion to make the confession is that
the accused used to drive the car of a Sant and as such, he used to park his
car in the same parking area where the witness was also parking the car. In our
view this piece of evidence does not inspire confidence as to the credibility
of the witness. The choice of a person to confess cannot be effected just like
that. In this context strong reliance was also placed by the High Court on the
decision of this Court in the case of Makhan Singh v. State of Punjab (AIR 1988 SC 1705). This Court
while dealing with more or less similar situation in paragraph 11 observed:-
"On 10th August,
1985 FIR was lodged by
Nihal Singh (PW2) and on 13.8.1985 the appellant went to Amrik Singh (PW 3) to
make an extra judicial confession. Amrik Singh (PW 3) to make an extra-
judicial confession. Amrik Singh says that the appellant told him that as the
police was after him he had come and confessed the fact so that he might not be
unnecessarily harassed. There is nothing to indicate that this Amrik Singh was
a person having some influence with the police or a person of some status to
protect the appellant from harassment. In his cross-examination he admits that
he is neither the Lambardar or Sarpanch nor a person who is frequently visiting
the police station. He further admits that when he produced the appellant there
was a crowd of 10 to 12 persons. There is no other corroborative evidence about
the extra-judicial confession. As rightly conceded by the learned counsel for
the State that extra-judicial confession is a very weak piece of evidence and
is hardly of any consequence. The council, however, mainly relied on motive, the
evidence of last seen, the evidence of recovery of dead bodies and the conduct
of the appellant in not making a report about the missing father and son."
The confession in the normal course of events are made to avoid harassment by
the police and to a person who could otherwise protect the accused against such
a harassment.
The
records in the present appeal do not reflect any one of these aspects. As such
it is difficult to point to the accused with the crime on the basis of the
evidence available in this case. The incident did take place on 18th November, 1989 and the body was recovered on 19th
November.
The
extra-judicial confession of the accused as regards his involvement in the
crime is said to have been effected to Jaspal Singh PW 7 on December 7, 1989 -
thus a delay of more than 20 days without any explanation whatsoever. The delay
in recording extra-judicial confession before a person wholly unconnected with
the police is always a matter of great suspect. In our view the High Court was
right in rejecting the confessional statement. In view of want of sufficient
circumstances, we record our concurrence with the findings of the High Court
that the charge against the respondent has not been proved beyond all
reasonable doubt and his conviction therefore cannot be sustained. The appeal
is hence dismissed.
Back