RAM SINGH v. SONIA AND ORS

Citation: [2007] 2 S.C.R. 651

Court: Supreme Court of India

Bench: B.N. AGRAWAL, P.P. NAOLEKAR

Case summary

RAM SINGH v. SONIA AND ORS.pdf

Judgment text

RAM SINGH v. SONIA AND ORS. FEBRUARY 15, 2007 [B. N. AGRAWAL AND P. P. NAOLEKAR, JJ. ] Penal Code, 1860: Section 302 rlw Sections 34 and 120-B.

- Murder-'Rarest of rare' cases-Death sentence-Imposition of- Justification-Extrajudicial confession-Circumstantial evidence-Accused A-1 (daughter) along with her husband accused A-2 had not only murdered her step brother and his whole family, which included three children of 45 days, 2 112 years and 4 years but also her own father, mother, sister and sister-in-law while they were sleeping so as to prevent her father from giving the property to her step brother and his family-Trial court convicted the accused persons on the basis of confession and circumstantial evidence and imposed sentence of death on them-However, High Court commuted the death sentence into life imprisonment-Correctness of-Held: The fact ~hat the murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims' side indicates the cold-blooded and premeditated approach of the accused to cause the death ofthe victims-The act was diabolic ofthe most superlative degree in conception and cruel in execution and that both the accused persons were not possessed ofthe basic humanness and completely lack the psyche or mindset which could be amenable for any reformation-This is an act which is not only revolting but also dastardly-The case ~ndoubtedly i.

' falls within the category of 'rarest of rare' cases-Hence, High Court . not justified in commuting the death sentence into life imprisonment-High Court judgment set aside and that of the trial court restored-Code of Criminal Procedure, 1973, Ss. 164 and 463. According to the prosecution, when PW-57, one ofthe employees of the deceased, and A-2 were sitting at the saw mill located by the side ofa farmhouse of the deceased, a telephone call was received by A-2 from A-1 conveying her desire to celebrate the birthday ofher deceased sister and that she would bring her from the school in which she was studying. At about 9. 30 pm, A-1 along RAM SINGH v. SONIA 653 Sections 34 and 120-B of the Penal Code, 1860 and sentenced them to death. The High Court, while upholding their convictions, had commuted the sentence -of death into life imprisonment. Hence the appeals.

On behalf of the accused persons, it was contended that A-I was forced to write the suicide note after having been tortured in police custody; that the judicial confession made by A-I to PW-62 was not recorded according to the procedure prescribed by Section 164 of the Code ofCriminal Procedure, 1973 which could not be cured by Section 463 Cr. P. C. ; that A-I was kept under y direct or indirect police surveillance and, therefore, she was in police custody ' when she made the confession; that the hospital record was tampered with; that the fingerprints from the iron rod used to commit the crime were not lifted and that the FIR was ante timed. Allowing the appeal filed by the State and dismissing the appeal filed by the accused persons, the Court HELD:I. There is overwhelming evidence to show the presence of A-1 at the place of occurrence on the intervening nights on the day ofthe incident. . , .

The trial court and the High Court have relied on the evidence of PW-57, PW-58, PW-46, PW-25 and PW-64 after close and careful scrutiny of the same. The view taken by the trial court and the High Court is the correct one. [Para 12] (663-G; 664-A) 2. A bare perusal of the suicide note which was addressed by A-1 to none other than A-2 {her husband], would show that in the very first line she has confessed of having eliminated everybody and that she was ending her life as well. In this very letter of hers, A-l has admitted having written it immediately after the occurrence. This fact stands proved by the evidence of PW-57 who, in his evidence, has stated that he picked up the said letter from A-l's bed and thereafter left for the police station. Therefore, there was no reason for any of the police officials to be present at the place of occurrence from the time the crime was committed until the arrival of the police officials after the lodgment of the FIR.

Both the courts below have relied upon the evidence ofPW-57 and PW-26 on this point and there is no reason to disbelieve their testimony. (Para 14) [664-C, D, E] 3. 1. In her Suicide Note, A-1, towards the end, has written that after finishing them all she was ending her life. PW-52 has also statecl that at the time of her admission hers was a case ofsuspected poison and, therefore, she was declared to be·unfit to make any statement. There is not an iota ofevidence on record to show that in order to keep any direct or indirect vigil on the movements of A-1 the police personnel remained present in or outside the room in which A-1 was recuperating or in the hospital since the time ofA-1's admission until her discharge therefrom or that the police personnel made frequent visits to the hospital, thereby restricting A-1's movement. [Para 15J [665-B, C, DJ 3. 2.

In the absence of any evidence to show that from the moment of A- 1's admission to, and discharge from, the hospital the police personnel were either present in the room wherein she was kept for treatment or even in the vicinity of the hospital or they made frequent visits to the hospital, it cannot be said that A-1's movements were restricted or she was kept in some sort of direct or indirect police surveillance and that she was in police custody for the purpose ofSection 26 of the Evidence Act, 1872. [Para 17] [666-B, C, DJ Pllramhansa Jadab v. State, AIR (1964) Ori 144, held inapplicable. 4. A-1 was admitted to the hospital as a suspected case of poison and, therefore, she was declared to be unfit to make any statement. The prosecution rightly sent for PW-62 for recording the dying declaration of A-1. [Para 21J [667-E, FJ ' ... 5.

It is evident from the certificate appended to the confessional statement by PW-62, the Judicial Magistrate, that the confessional statement was made by the accused voluntarily. Of course, he failed to record the question that was put by him to the accused whether there was any pressure on her to give a statement, but PW-62 having stated in his evidence before the Court that he had asked the accused orally whether she was under any pressure, threat or fear and he was satisfied that A-1 was not under any pressure from any corner, that in the room in which the said confessional statement was recorded it was only he and PW-32 who were present and none else and that no police officer was available even within the precincts of the hospital, the said defect is cured by Section 463 of the Code of Criminal Procedure, 1973 as the mandatory requirem'ent provided under Section 164(2) Cr. P. C.

, namely, explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him has been complied with and the same is established from the certificate appended to the statement and from the ~vidence of PW-62. Therefore, the judicial confession having been recorded according to the procedure set out in Section 164 read with Section 281 and J-... the defect made while recording the same being curable by Section 463, it is admissible in evidence. [Para 23J [668-F, G, H; 669-A, BJ '• State ofUP. v. Singhara Singh, AIR (1964) SC 358, relied on. RAM SINGH v. SONIA 655 Balbir Singh v. State ofPunjab, [1963! 3 SCR 749, referred to. Nazir Ahmadv. King Emperor, AIR (1936) PC 253, Preetam v. State of MP. , (1996] 10 SCC 432 and Tutsi Singh v. State ofPunjab, [1996] 6 SCC 63, held inapplicable. 6.

The medical evidence that the injuries could be caused with the iron rod, the statement of PW-57 that he had seen A-1 removing the iron rod from the store room at the place ofoccurrence and its recovery from the bed ofA- I leave no scope for any doubt about the veracity of the prosecution case as '( " against A-1. Finding of bloodstains on the salwar of A-1 and its matching with the blood group of the deceased further strengthens the case of the prosecution. [Para 34] [674-D, E] 7. The case against A-1 has been proved by the prosecution beyond a reasonable doubt and, therefore, the order of conviction of A-1 passed by the trial court and upheld by the High Court is unassailable. [Para 36] [674-G] 8.

The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the • law is well settled that each and every incriminating circumstance must be r' clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused.

It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for some times unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental ~ distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions. [Para 39] [675-C, D, E, F, G] 9. 1. In view ofthe evidence of PW-12 and PW-30 and the confession of + A-1, the prosecution has been able to establish that A-2 accompanied A-1 to +the place of occurrence in the night of the incident. (Para 42) (676-G] 9. 2.

One of the deceased was lying dead on the floor with her mouth, hands and feet tied which is indicative of the fact that before she was killed, she had shown resistance and in order to overpower her, her mouth, hands and feet were tied. By no stretch of imagination it could be perceived that tying of mouth, hands and feet of a person could be possible by one person. It .. would not have been possible for A-1 alone to tie the mouth, hands and feet herself which further establishes the fact of the presence of A-2 at the place ) I of occurrence and his having participated in the crime along with A-1. This is the second circumstance in the chain which stands established and points a finger towards none other than A-2 of his having participated in the crime with A-1. [Para 43) [677-A, B, C) 9. 3. There was no reason for A-1 to leave the place of occurrence in the morning of the incident after having taken a decision to end her life by consuming poison.

Her leaving the place of occurrence and coming back after half an hour to that very place lends further support to the evidence of PWs 57 and 58. T_hat she initially thought of ending her life in accident and that is . ~ why she left the place of occurrence in the morning in a jeep and having ... decided against it on the way and returned to the place of occurrence after half an hour does not inspire confidence at all. Therefore, in the absence of any infirmity in the evidence of PWs 57, 58 and 46, which evidence is supported by none other than A-1 in her judicial confession made to PW-62, the third circumstance stands also proved by the prosecution. [Para 44) (677-D, E, F] 10. A-1 had left the place ofoccurrence in the morning of the day ofthe incident along with A-2 so as to provide him a safe exit and to give a slip to the prosecution. This is the fourth circumstance that the prosecution has been }able to establish. (Para 45] (678-E] II.

In view of the recovery of ash of the bloodstained clothes and that of the bag at the instance of A-2, the prosecution has been able to establish this link also in the chain of circumstances. [Para 46] (678-H) 12. 1. The extrajudicial confession made by A-2 to PW-48 is supported '""-.. by the fact that the weapon used in the crime i. e. tractor rod, mention of which has been made by A-2 in his confession to PW-48, was found on the bed of A- I and on the disclosure statement made by A-2 to the police, the ash of the bloodstained cloths of his and A-1 and that of the bag containing the said cloths RAM SINGH v. SONIA 657 was also recovered. (Para 471 [679-E, Fl --t 12. 2. Indisputably, extrajudicial confession was made by A-2 to PW-48 prior to his arrest by the police and, therefore, question of it being made under any inducement, threat or promise does not a rise. Moreover, there was absolutely no reason for PW-48 to unnecessarily implicate the accused, as he had no animus against him.

[Para 49) [681-C, DI Gursa Singh v. State ofRajasthan, [20011 2 SCC 205, relied on. Rao Shiv Bahadur Singh v. State of Vindhya Pradesh v. State ofPunjab, 1. AIR (1964) SC 322, Maghar Singh v. State of Punjab, [1975) 4 SCC 234, Narayan Singh v. State of MP. , [19851 4 SCC 26, Baldev Raj v. State of Haryana, AIR (1001) SC 37, Piara Singh v. State ofPunjab, [19771 4 SCC 452 and Madan Gopal Kakkadv. Naval Dubey, [1992) 3 SCC 204, relied on. 13. Insofar as motive qua the crime committed is concerned, it is clearly borne out from the factual matrix of the case on hand that both the accused had an eye on the property ofthe decPased, which was in crores and in order to gain full control over the property and to deprive the deceased from giving J • it to anybody else, both the accused persons have eliminated his whole family. . ,.

A-2, in his extrajudicial confession made to PW-48, has indicated that as the deceased was not parting with the share ofA-1 in the property, both A-1 and A-2 together have done to death his whole family. Therefore, the motive qua the crime committed stands prov~d in the present case. [Para 51) (681-E, Fl 14. The extrajudicial confession made by A-2 to PW-17 is hit by Section 26 of the Evidence Act, 1872, it having been made by A-2 while in police custody and, consequently, cannot be admitted into evidence and, therefore, has to be eschewed from consideration. However, even the exclusion of the extrajudicial confession made by A-2 before PW-17 would be of no help to this accused as the prosecution has succeeded in proving its case beyond reasonable doubts against A-2 on the basis of circumstantial evidence enumerated above as well as the extrajudicial confession made by A-2 before PW-48. [Para 571 683-D, E, Fl Kishore Chand v. State ofH. P. , [1991) 1 SCC 286, relied on. ~ 15.

As there are other materials sufficient for upholding the conviction of A-2 the question ofadmissibility or otherwise of the result ofthe Polygraph (Lie Detection) Test conducted on A-2 is not gone into. [Para 58) (684-A) Romeo Phil/ion and Her Majesty The Queen, [1978] 1 SCR 18, R. v. +- Beland, [1987] 2 SCR 398 and Mallard v. Queen, (2003) WASCA 296, [ referred to. 16. The instant case is one wherein the accused A-1, along with the accuse4 A-2 (her husband) has not only put an end to the lives of her step brother and his whole family, which included three tiny tots of 45 days, 21/2 years and 4 years but also her own father, mother and sister in a very diabolic manner so as to deprive her father from giving the property to her step brother and his family.

The fact that the murders in question were committed in such ': , ' a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims' side indicates the cold-blooded and premeditated approach ofthe accused to cause the death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of the most superlative degree in conception and cruel i. n execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mindset which can be amenable for any reformation. Ifthis act is not revolting or dastardly, it is beyond comprehension as to what other act can be so. In view of these facts, there would be failure of .

\ justice in case death sentence is not awarded in the present case as the same undoubtedly falls within the category of 'rarest ofrare' cases and the High "' Court was not justified in commuting the death sentence into life imprisonment. [Para 66] [687-F, G, H; 68~A, B, Cl Baldev Singh v. State ofPunjab, [1980) 2 SCC 684 and Machhi Singh v. State ofPunjab, [1983] 3 SCC 470, referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 895 of 2005. From the final Judgment and Order dated 12. 4. 2005 of the High Court of Punjab and Haryana at Chandigarh, in Criminal Appeal No. 556-DB/2004 and Murder Reference No. 3/2004. WITH Crl. A. No. 894 of2005 & Crl. A. No. 142 of2006. ~. K. T. S. Tulsi, Sushi! Kumar, U. U. Lalit, Prem Malhotra, Rishi Malhotra, Manish K. Saryal, Gaurave Bhargava, Atriar Dey, Lal Bahadur, Vinay Arora, . Adolf Mathew, Sudershan Singh Rawat, Mukesh Kumar, Sanjay Jain, Aditya ~ Kumar, Rajeev Gaur, 'Naseem', Nitin Sangra and T. V. Geroge, for the appearing parties.

The Judgment of the Court was delivered by B. N. AGRAWAL, J. 1. Sonia [A-I] and Sanjiv [A-2], respondents in Criminal Appeal No. 895 of 2005, were tried and convicted by the trial court under Section 302 read with Section 34 and Section 120-B of the Indian Penal Code ['! PC' for short] and sentenced to death and to pay a fine of Rs. 2000/ y ~ - each. A-1 and A-2 were further convicted under Sections 25(1-B)(b) and 25(1-B(a) of the Arms Act respectively and sentenced to undergo rigorous imprisonment for a period of one year. A-2 was further convicted under Section 20I IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000/- in default whereof to further undergo imprisonment for one month. The sentences were, however, ordered to run concurrently. Tried along with A-I and A-2 were eight other accused persons but they were acquitted by the trial court for want of evidence.

The order of convictions and sentences gave riJe to a murder reference by the Sessions Judge, Hisar and appeals by both the accused before the Punjab & Haryana .. High Court. By the impugned judgment, while upholding their convictions f under Section 302 read with Section 34 and Section 120-B ofthe ! PC and other provisions, the High Court has commuted the sentence of death into life imprisonment. Hence these appeals by special leave. 2. While Criminal Appeal Nos. 895 of2005 and 894 of2005 have been preferred by Ram Singh, brother of deceased - Relu Ram, and the State of Haryana respectively for enhancement of sentence from life imprisonment to death, Criminal Appeal No. 142 of2006 is by the accused assailing the impugned judgment of their convictions and sentences. .. I, 3. The case of the prosecution is that on 23. 8.

2001 when Jeet Singh [PW 57], one of the employees of deceased - Relu Ram, and A-2 were sitting at the Saw Mill located by the side of Farm House of Relu Ram, a telephone call was received by A-2 from A-1 conveying her desire to celebrate Priyanka's [deceased sister of A-1] birthday at the Kothi at Litani Mor [place of occurrence] and that she would bring her from the hostel of Jindal School at .. ,. l Hisar the school she was stu_dying in. At about 9. 30 p. m. A-1 along with Priyanka reached home in a jeep. Thereafter, between 11 - 12 p. m. , on hearing · some noise of footsteps, PW 57, who was present at the Farm House, woke up and noticed that light in the room, where the spare parts of tractors etc. were' kept, was on and upon inquiry found that A- I was there in the room and he saw her taking a rod to the first floor which rod is used for raising/ tilting the tractor from the ground.

He again heard the noise of explosion of fire works, but, thinking that Priyanka' s birthday was being celebrated, he went to sleep. PW 57 further stated that on 24. 8. 200 I at about 4. 45 a. m. when he was sitting on his cot, he saw A- I coming down and taking the Jeep at very fast speed and returning after half an hour. Thereafter, at about 5. 30 a. m. Ram Phal, the Milk Vendor, brought milk, but on seeing him coming upstairs, A-I instructed him to leave the milk on the ground floor. At about 6. 15 a. m. the School' Van came to take Lokesh [deceased], son of Sunil [deceased], but it left after waiting for some time as Lokesh did not come down despite blowing of horn. PW 57 thereafter sent Rohtas, another servant of Relu Ram, to the first floor for bringing Lokesh down for being dropped in the School on motor-cycle.

Upon being called by Rohtas, PW 57 went to the first floor and found that A-1 was lying in the porch with froth coming out of her mouth and was mumbling that she be saved and Sanjiv [A-2] be called. Reaching inside the house, PW 57 found that Relu Ram [father], Krishna [mother], Sunil [brother], Shakuntala [sister-in-law], Priyanka@Pamma [sister]; Lokesh [nephew] and Shivani and Preeti [nieces] of A-1 had been murdered in different rooms. He also found that Shakuntla's hands and feet were tied with cot. The tractor rod that PW 57 had seen A-1 removing from the room on the previous night was lying on the bed of A-1. Noticing a letter [Suicide Note Ext. 227] lying on the bed ofA-1 written in Hindi, PW 57 picked up the same and left for the Ulkana Police Station. While giving description of what had been seen by him at the place of occurrence and handing over the said Suicide Note to S. I.

Vinod Kumar, PW 59, PW 57 also stated that it may be possible that A-1 under a conspiracy had either administered some poisonous substance or made them to inhale poisonous thing and upon becoming unconscious they had been murdered. It was further stated by him that about six months prior to this incident, A-I with an intention to kill deceased Sunil had also fired a shot from the licensed gun of deceased Relu Ram over a dispute of property, but the matter was hushed up in the house. 4. On the basis of sequence of events that had taken place at the place of occurrence from the evening of 23rd August until 24th morning, described by PW . 57 to PW 59 and the Suicide Note alleged to have been written by A-1, FIR was registered in the UlkanaPolice Station at 8. 15 a. m. by PW 59 wherein contents of Suicide Note were also reproduced. \ 5.

On completion ofthe investigation, chargesheet was submitted against -t A-1, A-2 and eight other accused persons, cognizance taken and they were committed to the court of Sessions to face trial. 6. Defence of the accused persons was that they were innocent and falsely implicated. The stand taken by A-I was that she was picked up by the police of CIA Staff on 24th August from Faridabad and was brought to Hisar, kept in illegal custody, tortured and threatened that in case she would not make the statement according to what they say, her only son would be killed and thereafter they forcibly obtained her signatures on blank papers. r' A-2 took the defence, inter a/ia, that he was falsely implicated at the instance ofthe employees ofRelu Ram who had embezzled a lot ofmoney ofhis fatherin-law and by those people who had taken a loan from him and that it were they who had committed the murder of Relu R. im and his family members. 7.

So far as A-I is concerned, the prosecution case principally rests on (I) the Suicide Note [Ext. 227] alleged to have been written by her wherein she admitted having murdered eight persons, including three tiny tots, who were none other than her own immediate family members, (2) the judicial confession [Ext. 187] made by her to the Magistrate in the hospital where she was removed by the Police immediately after the occurrence and (3) -r bloodstained clothes of A-1, blood group of which tallied with the blood group of deceased Sunil and Lokesh. 8. So far as A-2 is concerned, the case of the prosecution revolves around circumstantial evidence, extra-judicial confessions made by him to Sunder Singh, PW. 48, and Rajni Gandhi, Scientific Assistant, PW 17, the result of the polygraph test to which he was put by the prosecution and the recoveries made at his instance by the police. -~ 9. Mr. Sushi!

Kumar, learned senior counsel appearing on behalf of the respondents, has submitted that the suicide story is a total concoction by the prosecution as, even according to the medical evidence, A- I did not show any symptom of having consumed poison, she was not administered any treatment as such, though prescribed and, therefore, her having not consumed any poison, there was no reason for her to write the alleged Suicide Note, as there was no risk to her life, which, he says, is a document that she was forced -,)' to write after having been tortured in police custody. So far as judicial confession [Ext. 187] made by A-I to Pardeep Kumar, Judicial Magistrate, Ist Class [PW 62] is concerned, his submission is that it is a piece of evidence which needs to be eschewed from consideration by this Court on two counts i. e.

, admissibility and truthfulness as the approach of the recording magistrate -t"was very casual and it has not been recorded according to the procedure prescribed by Section 164 ofthe Criminal Procedure Code ['Cr. PC' hereinafter]. According to the learned counsel, non-compliance of Section 164 by the recording magistrate cannot be cured by Section 463 Cr. P. C. as it cures only the defect of reco;ding the statement and not its non-compliance. In support of this submission, reliance has been placed by the learned counsel upon the deCisions in the cases of Nazir Ahmad v. King Emperor, AIR (1936) PC 253, Preetam v. State of MP. , [I996] 10 SCC 432, and Tutsi Singh v. State of Punjab, [1996] 6SCC 63. Learned counsel further submits that since it is not and cannot be disputed that A-1 was removed from the place of occurrence to ~he hospital by Head Constable Ashok Kumar [PW.

25], she came to be under police custody since the time of her such removal until her formal arrest by the police on 26th August, 2001 and her movements having been restricted and she having been kept under direct or indirect police vigil, as per the legal position, she was in police custody. In support of this submission, he has placed reliance upon Paramhansa Jadab & Anr. v. State, AIR {1964) Orissa 144. Learned senior counsel has also pointed out other infirmities in the prosecution case, such as tampering of hospital record [Exts. P-193 and P- ; 192], non-lifting of fingerprints from the iron rod used to commit the crime and . ,. ante-timing of FIR. JO. On the other hand, Mr. K. T. S. Tulsi, learned senior counsel appearing on behalf of the appellant in Criminal Appeal No. 895 of 2005 has submitted that in view of admission by A-1 in the Suicide Note as well as in the judicial confession [Ext.

187] made to PW 62 of having committed the murder and handwriting on the Suicide Note having been proved to be that of A-1, there is no scope left for doubting the veracity of the prosecution case. It has been further submitted by Mr. Tulsi that insofar as judicilll confession recorded by }. PW. 62 is concerned, it was recorded according to the procedure set out in Section 164 Cr. P. C. and that the alleged breach of Section 164(2) i. e. , failure of magistrate to record reasons to believe that her statement was voluntary is a defect curable by Section 463 of the Cr. P. C. and is covered by a decision ofa 3-Judge Bench of this Court in the case ofBabu Singh v. State ofPunjab, [1963] 3 SCR 749. Adopting the line of argument identical to that of Mr. Tulsi, ' r Mr. U. U. Lalit, learned senior counsel appearing on behalf of the State, . ,submitted that even ifthere is a violation of Section 164 Cr. P. C.

, the Court can admit such an evidence as the violation of that Section is cured by Section 463·Cr. P. C. if it had not injured the accused in his defence on the merits. ..... RAM SINGH v. SONIA [B. N. AGRAWAL,. l. ] 663 11. We shall first deal with the Suicide Note alleged! y written by A-1. i PW-57 the informant - while lodging the FIR and in his evidence stated that the Suicide Note was picked up by him from A-1 's bed and thereafter he left for the Ulkana Police Station to lodge the FIR. It was handed over by him to PW. 59 who, on the basis of sequence of events narrated by PW. 57 that had taken place at the place of occurrence and on the basis of Suicide Note, registered the FIR, making the Suicide Note as part and parcel of the FIR by reproducing its contents therein. , 12. So far as presence of A-I at the place of occurrence is concerned, both PW.

57 and PW 58 - Amar Singh, another employee of deceased Relu Ram who was working as Chowkidar and posted at the main gate of Kothi at Litani Mor [the place of occurrence], in their testimony have stated that they had seen A- I coming to the Kothi at Litani Mor along with deceased Priyanka@Pamma in a Jeep between 9-10 p. m. on 23rd August, 2001, going out of the Kothi in the early hours of 24th August in a self-driven jeep at very fast speed and returning after half an hour. This fact is corroborated by the evidence ofHead Constable Dharambir Singh [PW. 46] who, in his evidence, has stated that while he was on patrolling duty at Surewala Chowk from 2 a. m. • to 6 a. m. on 24th August, 2001, he had seen A-I at 5. 30 a. m. coming from the '! ' side of Barwala in a Tata Sumo driving at a very fast speed. The evidence, which further lends support to this fact, is that of Constable Ashok Kumar [PW 25] and Chhabil Das, PW. 64. PW. 25, who was asked by PW.

59 along with other police personnel to reach the place of occurrence, stated that on reaching the spot and seeing A- I with froth coming out of her mouth, he removed and admitted her to the Janta Hospital at Barwala. PW. 64, who happened to be present at the place of occurrence, has stated that on seeing PW. 25 taking A-I to the hospital, he accompanied him to the hospital. The application [Ext. P. 152] moved by PW. 25 to the doctor on duty with regard to the fitness of A-1 to make the statement and also the indoor chart [Ext. P. 193] which' bears the signature of PW. 64 depict that she was brought by PW. 25. Mr. Sushi! Kumar has drawn our attention to the omission made by PW. 25 in his evidence that this witness has nowhere stated that he was accompanied by PW. 64: This omission by PW. 25, in our view, does not affect the case ofthe prosecution, especially in view ofthe fact that the indoor cha. rt ofthe hospital bears the signature of PW. 64. Therefore, there is overwhelming . _.

_..... t, evidence to show the presence of A- I at the place of occurrence on the intervening night of 23rd and 24th August and in the early hours of 24th August, 200 I. The trial court and the High Court have relied on the evidence of PW 57, PW 58, PW 46, PW 25 and PW 64 after close and careful scrutiny of the same. We have on our own considered the evidence on the point and t we are satisfied that the view taken by the trial court and the High Court is correct one. 13. The factum of A-1 's presence at the place of occurrence having been established, we now proceed to discern whether the Suicide Note was fabricated one. In order to verify the handwriting on the Suicide Note to be that of A-1, on 10. 9. 2001 Sl-Ajit Singh [PW 27] moved an application before · Balraj Singh [PW. 26], the then SOM, Hisar, for taking specimen signature and handwriting of A-I, which were taken and sent to FSL, Madhuban for analysis.

According to the report submitted by FSL, Madhuban, in this regard, the handwriting on the Suicide Note tallied with the specimen handwriting. 14. A bare perusal of Suicide Note which was addressed by A-I to none other than A-2 [her husband], would show that in the very first line she has confessed of having eliminated everybody and that she was ending her life as well. In this very letter ofhers, A-I has admitted having written it immediately after the occurrence. This fact stands proved by the evidence of PW. 57 who in his evidence has stated that he picked up the said letter from A-1 's bed and thereafter left for the police station. Therefore, there was no reason for any of the police officials to be present at the place of occurrence from the time the crime was committed until the arrival of the police officials after the lodgment of the FIR. Both the courts below have relied upon the evidence of PW. 57 and PW. 26 on this point and we see no reason to disbelieve their testimony.

In this view of the matter, the submission of the learned counsel thatthe Suicide Note was fabricated has to be rejected. 15. This takes us to the next submissioq made by Mr. Sushil Kumar that movements ofA-1 having been restricted since the time of her removal to the hospital until her formal arrest on 26th August, 200 l, she was kept under rdirect or indirect police surveillance and, therefore, as per legal position, she was U! Jder police custody. In support of this submission, he has relied on Paramhansa Jadab & Anr. v. The State, AIR (1964) Orissa 144, a decision of a Division Bench of Orissa High Court. We have been taken . ~hrough the evidence of PW 25, Dr. Jagdish Sethi [PW. 521 and PW 62. PW. 25 has stated in his evidence that on his arrival at the place of occurrence, he saw A-I lying in front of the main door under the porch of the first floor of the house from x.. ,, •. where she was removed to the hospital.

The factum of admission to the hospital stands proved from the evidence of PW. 52, who was on duty as the Casuality Medical Officer at the Janta Hospital, Barwala. In his statement, PW. 52 has stated that at the time of her admission to the hospital, A- I was unfit to make any statement. PW. 62 in his evidence has stated that at the time of recording of confessional statement of A- I, no police official was present either in the room in which the statement was recorded nor in the vicinity of the hospital which fact has been confirmed in his evidence by Dr. Anant Ram, PW 32, under whose care A-1 was at the time the judicial confession was being recorded and who was also present at the time of its recording. Undoubtedly, movements of A-1 were restricted, but it happened not because of any direct or indirect vigil kept by the police authorities, as is the contention of the learned counsel, but because of the treatment that was administered to her in the hospital.

In her Suicide Note, A-I towards the end has written that after finishing them all she was ending her life. PW. 52 has also stated that at the time of her admission hers was a case of suspected poison and, therefore, she was declared to be unfit to make any statement. There is not an iota of evidence on record to show that in order to keep any direct or indirect vigil on the movements ofA-1 the police personnel remained present in or outside the room in which A-1 was recuperating or in the hospital since the time of A-1 's admission until her discharge therefrom or that the police personnel made frequent visits to the hospital, thereby restricting A-1 's "' ' movement. 16. In Paramhansa [supra], reliance upon which has been placed by the learned counsel, the question that arose was whether the accused, who was formally arrested by the police on 19. 2.

1962, could be said to be in police custody from the moment when his movements were restricted and he was kept in some sort of direct or indirect police surveillance. In the said case, the accused was interrogated on 17. 2. 1962 and taken to the office of one Dr. Asthana on 18. 2. 1962. Accompanied along with the police personnel were some other persons and while police personnel left Dr. Asthana' s office after p a while, the accused and other persons who accompanied the police remained there. Setting aside the conviction of the accused under Section 302/34 and allowing the appeal, it was held at page 148 as under: "..... in the circumstances of this case I would hold that Paramhansa was in police custody for the purpose of Section 26 of the Evidence Act from the date of his interrogation by the Inspector on 17. 2. 1962 and that he continued to be in police custody when he was brought and left in Dr. Asthana's residence on 18. 2. 1962.

It is true that when this appellant made the confession before Dr. Asthana no police officer was near him. But some persons who came with the police in the Police van were left there. Thus there was indirect control and +-surveillance over the movements of the appellant by the police... " 17. Whether one is or is not in police custody could be discerned from the facts and circumstances obtaining in each case. Insofar as the case at hand is concerned, the police party reached the place of occurrence within 10 minutes of lodgment of the FIR and PW. 25, being aware of the fact that A-I had consumed poison and under instructions, seeing A-I lying in front of the porch, removed her to the hospital. PW. 52 having opined that A-I was unfit at the time of her admission in the hospital to give any statement, PW. 62 and PW.

32 also having stated in their evidence that none else, except them, was present in the room in which the statement of A-I was recorded and in the absence of any evidence to show that from the moment of her admission to and discharge from the hospital the police personnel were either present in the room wherein A-I was kept for treatment or even in the vicinity of the hospital or they made frequent visits to the hospital, it cannot be said that the. A-1 's movements were restricted or she was kept in some sort of direct or indirect police surveillance and that she was in police custody for the purpose ofSection 26 of the Evidence Act. Therefore, in our view, Paramhansa [supra] is of no help insofar as A-1 is concerned. 18. Turning now to the next submission of learned counsel appearing on behalf of the accused as to the judicial confession [Ext. 187] made by A- I before PW. 62, it would be useful to refer to relevant provisions in the Criminal Procedure Code that deal.

with the recording of a judicial confession by a judicial magistrate and see whether the judicial confession recorded by PW.. 62 of A-I is according to the procedure prescribed by these provisions or whether any violation thereof has been made by the magistrate while recording it. The relevant Sections in the Cr. P. C. are Sections 164, 281and463. 19. Sub-section (2) of Section 164 Cr. P. C. requires that the magistrate before recording confession shall explain to its maker that he is not bound to make a confession and if he does so it may be used as evidence against him and upon questioning the person if the magistrate has reasons to believe that it is being made voluntarily then the confession shall be recorded by the magistrate.

Sub-section (4) of Section 164 provides that the confession so recorded shall be in the manner provided in Section 281 and it shall be signed by its maker and the recording magistrate shall make a memorandum at the r foot of such record to the following effect: "I have explained to [name] 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 and I believe that this confession was voluntarily made. It was taken in my 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. [Signed] Magistrate" 20.

Sub-section (I) of Section 463 provides that in case the Court before whom the confession so recorded is tendered in evidence finds that any of the provisions of either of such sections have not been complied with by the recording magistrate, it may, notwithstanding anything contained in section 9I of the Indian Evidence, Act, 1872, take evidence in regard to such noncompliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. 21. In the case on hand, the application that was made to PW. 62 was for recording a dying declaration as A-1 was suspected to have consumed Lt' poison. Learned counsel appearing on behalf of the accused submits that as there was no danger to the life of A-1, there was no reason for the prosecution to call PW. 62 for recording dying declaration of A-1. We have perused the Indoor Charts of Janta Hospital, [Exts.

192 and 193) which clearly depict that hers was a case of suspected poison. We have also been taken through the evidence of Dr. Jagdish Sethi, PW. 52, who, in his testimony, has also stated that A-1 was admitted to the Janta Hospital in the morning of 24th August as a suspected case of poison and, therefore, she was declared to be unfit to make any statement. In our view, the prosecution rightly sent for PW. 62 for recording dying declaration of A-1. 22. Before adverting to the three decisions relied upon by the learned counsel for the accused, we shall first analyse the judicial confession (Ext. 187) recorded by PW 62 and see whether it has been recorded according to the procedure prescribed by Section 164. 23.

On 24th August, 2001, upon receipt of an application moved by Superintendent ofPolice for recording dying declaration ofA-I by a magistrate, DSP Man Singh, who partly investigated the case, approached the Chief Judicial Magistrate, Hisar, who, in tum, marked the said application to Pardeep j Kumar, PW. 62. On its presentation to PW. 62 by DSP Man Singh at 10 p. m. +the same day, both PW. 62 and DSP Man Singh left for the Janta Hospital, Barwala. After reaching the hospital and before recording the statement, PW. 62 first sought opinion of Dr. Anant Ram (PW 32) as to the fitness of Al to make the statement. As in the opinion of PW 32, A-1 was fit to make the statement, PW. 62 proceeded to record it, which is in question and answer form. It appears from Ext. 187 as well as from the questions and answers which were put to A-1 that PW. 62 warned A-I that she was not bound to make any confessional statement and in case she did so, it might be used against her as evidence.

in spite of this warning, A-I volunteered to make the statement ) ' and only thereafter the statement was recorded by PW. 62. In the cet1ificate that was appended to the said confessional statement PW. 62 has very categorically stated that he had explained to A-I that she was not bound to make a confession and that if she did so, any confession she would make might be used as evidence against her and that he believed that the confession was voluntarily made. He further stated that he read over the statement to the person making it and admitted by her to be correct and that it contained a full and true account of the statement made by her. It has been further stated by PW. 62 in his ~vidence that at the time of recording of the confession it .. was he and PW 32, who were present in the room and there was neither any police officer nor anybody else within the hearing or sight when the statement was recorded. It also appears from the evidence of PW.

62 that it took about 2-1/2 hours for him to record the statement of A-1, which runs into 5 pages, which he started at I0. 53 p. m. and ended at 1. 28 a. m. which goes to show that A-1 took her time before replying to the questions put. PW. 62 has also stated that she had given the statement after taking due time after understanrling each aspect. It also appears that he was satisfied that she was not under any press~re from any comer. Therefore, it is evident from the certificate appended to the confessional statement by PW. 62 that the confessional statement was made by the accused voluntarily. Of course, he failed to record the question that was put by him to the accused whether there was any pressure on her to give a statement, but PW.

62 having stated in his evidence before the Court that he had asked the accused orally whether she was under any pressure, threat or fear and he was satisfied that A-1 was not under any pressure from any corner, that in the room in which the said confessional statement was recorded it was pnly he and PW. 32 who were present and none else and that no police officer was available even within the precincts of the hospital, the ·-said defect, in our view, is cured by Section 463 as the mandatory requirement provided under Section 164(2), namely, explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him has been complied with and the same is established from the certificate appended to the statement and from the evidence of PW. 62. Therefore, in the light of our discussion above, we have no hesitation in holding that the judicial confession [Ext.

187] having been recorded according to the procedure set out in Section 164 read with Section 281 and the defect made while recording the same being curable by Section 463, it is admissible in evidence. 24. We now advert to the decisions relied upon by the learned counsel appearing on behalf of the accused. In the case of Nazir Ahmad [supra] the accused, who was charged with dacoity and murder, was convicted on the strength of a confession said to have been made by him to a Magistrate of the class entitled to proceed under the provisions of Section 164 relating to the recording of confession. The confession was not recorded according to the procedure and the record of the confession was not available as evidence either. The Magistrate, however, appeared as a witness and gave oral evidence about the making of the confession.

He stated that he made rough notes of what he was told, got a memorandum typed from the typist on the basis of the rough notes and thereafter destroyed the rough notes. The said memorandum, signed by him contained only the substance but not all of the matter to which he spoke orally. The recording Magistrate in the said memorandum just above his signature appended a certificate somewhat to the sam. e effect as that prescribed in section 164 and, in particular, stating that the Magistrate believed that the statements were voluntarily made. As there was no record in existence at the material time, there was nothing to be shown or to be read to the accused and nothing he could sign or refused to sign. The Judicial Committee held that the oral evidence of the Magistrate of the alleged confession was inadmissible. The Magistrate offered no explanation as to why he acted as he did instead of following the procedure required by Section 164.

Wheri questioned by the Sessions Judge, the response of the accused was a direct and simple denial that he had ever made any confession. The Judicial Committee, considering the abject disregard by the Magistrate of the provisions contained in Section 164 of the Code, observed that "where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all". Nazir [supra] is a case where recording Magistrate did not at all follow the procedure prescribed by Section 164 of the Code as a result of which, he violated the provisions thereof whereas in the case on hand the omission that has been made by the magistrate is his failure to record the question that he asked to the accused whether she was under any pressure, threat or fear to make a confession in the confessional statement I' + and the answer given by A-1. In his evidence before the Court, PW.

62 stated + that he asked A- I whether she was under any pressure, threat or fear and after he was satisfied that she was not under any pressure from any corner, he recorded in the memorandum that was appended to the confessional statement of A-1 that he believed that the confession was voluntarily made. Jn our view, Nazir [supra] has no application to the facts of the present case as the failure of PW. 62 to record the question put and the answer gjven in the confessional statement has not caused prejudice to the accused in her I defence and is a defect that is curable under Section 463. 25. In the case ofPreetam[supra] the accused was arrested on 17. 6. 1973 and when produced before the Magistrate on the following day he was sent to police custody, where he remained until 22. 6. 1973 and, thereafter he was sent to judicial custody. Upon being produced before a Magistrate on 25. 6. 1973. for recording his confession, he was given two hours time to reflect.

After cautioning the accused that he was not bound to make a confession and that if he did so, it might be used against him, the Magistrate went on to record his confession. Failure of the recording Magistrate to put questions to the accused to satisfy himself that the confession was voluntary so as to enable him to give the requisite certificate under sub-section (4) was termed by this Court as flagrant violation of the provisions of Section 164(2) and in utter disregard of the mandatory requirements of the said section. Pree/am (supra) is case where the accused remained in police custody for six days immediately before the recording of his confession by the Magistrate and, therefore, could be said to have been pressurized, tortured and harassed by the police. In such a situation, omission on the part of the recording Magistrate to put a question to the accused to satisfy himselfthat the confession was being made voluntarily can be said to be flagrant violation of law.

However, in the case on hand, A- I was removed by the police from the place of occurrence to the hospital in . 1-the morning of 24th August, 2001 where she remained until her arrest by the police in the evening of 26th August, 2001. It was at 10. 58 p. m. on 24th August, 2001, i. e. , during her hospitalization, that PW 62 recorded her confessional statement after cautioning her that she was not bound to make any confession and that if she did so, it might be used as evidence against her. PW 62 in his evidence has stated that it was only after administering the above caution and satisfying himself that A- I was making the statement voluntarily that he proceeded on to record h~r confession. It also appears from his evidence that no police official was present either in the room in which he recorded the confessional statement of A-I, or in the hospital.

Therefore, in the absence of any evidence to show that she was under direct or indirect vigil of the police authorities during her hospitalization and she --"\· having already confessed the crime in her Suicide Note, the omission on the part of the recording Magistrate to record the question and the answer given in the confessional statement cannot be said to be flagrant violation of law, especially in view of the fact that the recording Magistrate has stated in his evidence that he orally asked A-1 if she was under any pressure, threat or fear and it was only after satisfying himself that she was not under any pressure from any corner that he recorded her confessional statement. In the certificate that was appended to the confessional statement as well, PW 62 r has stated that he believed that confession that A-1 made was voluntary.

In ' our view, the defect committed being curable under Section 463 has not injured the accused in her defence on the merits and that she duly made the statement. 26. Similarly, in the case of Tutsi Singh [supra], also relied upon by the learned counsel for the accused, the recording Magistrate did not explain to the accused that he was not bound to make a confession and that if he did so, it might be u~ed against him, nor did he put any question to him to satisfy that the confession was being voluntarily made although, an endorsement to -' this effect was made by him in the certificate that was appended to the confessional statement. This court, while setting aside the conviction and f sentence recorded against the accused under Section 302 lPC, held that the special court was not at all justified in entertaining the confession as a voluntary one, observing that mere endorsement would not fulfill the requirements ofsub-section (4) ofSection 164.

This case too has no application at all to the facts of the present case for two reasons firstly, in this case too the appellant remained in police custody for a week and secondly, it is a case in which the recording Magistrate neither explained to the accused that he was not bound to make a confession and if he did so, it might be used against -f him nor satisfied himself upon questioning the accused that the confession was being voluntarily made. In the case on hand, PW 62 in his evidence has stated that he did ask the accused the question whether she was under any pressure, threat or fear and only after satisfying himself that she was not under any, that he proceeded on to record her confessional statement. 27. Therefore, in view of our above discussion, the three decisions •· .. X relied upon by the learned counsel for the accused in the cases of Nazir (supra), Preetam (supra) and Tulsi (supra) are of no help to the accused. 28.

In the case of Babu Singh [supra], reliance on which has been placed by Mr. Tutsi, appearing on behalf of the appellant in Cr!. Appeal No. 895 of2005, a 3-Judge Bench ofthis Court, while dealing with the question whether non-compliance of the provisions of Section 164 or Section 364 [Section 281 of the new Code] is a defect which could be cured by Section 533 [Section 463 of the new Code] observed at page 759 thus:- "...... Section 533(1) lays down that if any Court before which a , l confession recorded or purporting to be recorded under Section 164 or Section 364 is tendered or has been received in evidence finds that .. any ·of the provisions of either of such sections have not been ~ I ' ' .

complied by the magistrate recording the statement, it shall take - , evidence that such person duly made the statement recorded; and it adds that notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872 such statement shall be admitted if the error has not injured the accused as to his defence on the merits. Mr. Khanna contends that the magistrate has in fact given evidence in the trial court and the evidence of the magistrate shows that the statement has been duly recorded; and he argues that unless it is shown that prejudice has been caused to the accused the irregularity committed by the magistrate in not complying with Section 364(3) will not vitiate the confessions nor will it make them inadmissible. There is some force in this contention...

But for the purpose of the present appeals we are prepared to assume in favour of the prosecution that the confessions have been proved and may, therefore, be considered on ·the merits if they are shown to be voluntary and that is the alternative . argument which has been urged before us by Mr. Rana. " 29. After observing that the confessions were duly recorded, the Bench proceeded to discern from the factual matrix ofthe case whether the confessions were voluntary or not and taking note of three unusual features qua the confession recorded, namely, (I) that the accused was kept in the police custody even after the substantial part of the investigation was over; (2) that the confession so recorded did not indicate as to how much time the accused was given by the magistrate before they made their confessions and (3) that the magistrate who recorded the confession had taken part in assisting the investigation by attesting recovery memos in two cases, the confessional statement .

of the accused was excluded from consideration. It was observed x . ~ at page 764 thus: "... Having regard to these features of the case we are not prepared to uphold the finding of the High Court that the confessions. made by . _. + the appellants can be safely treated to be voluntary in the present case. If the confessions are, therefore, excluded from consideration it is impossible to sustain the charge of murder against either of the two appellants. In a case where the charge of murder was founded almost exclusively on the confessions it was necessary that the High Court should have considered these relevant factors more carefully before it confirmed the conviction of the appellants for the offence under Section 302 and confirmed the sentence of death imposed on Babu r Singh. In our opinion, if the confessions are left out of consideration, the charge of murder cannot be sustained.. " 30.

The three unusual features noticed by the Bench in Babu Singh [Supra) impelled the learned Judges to exclude from consideration the confessional statement made before the magistrate by the accused after having observed that the confession was admissible in evidence. As the charge of murder was founded exclusively on the confession, both the accused persons were acquitted of the charge under Section 302/34 IPC. 31. In our view, the factual matrix in Babu Singh [supra] was distinct .. from the one with which we are dealing. In Babu Singh, both the accused y remained in police custody for a long time and even after the substantial portion of the investigation was over. If one were or held to be in police custody, question of pressure, threat or fear would arise.

We have already held that in the facts and circumstances of the present case, A-1 cannot be said to be in police custody during her hospitalization and, therefore, question of her being pressurized, threatened or put under any kind of fear does not arise. 32. In the case of State of U. P. v. Singhara Singh & Ors. , AIR (1964) SC 358, a 3-Judge Bench of this Court observed that if the confession is not recorded in proper form as prescribed by Section 164 read with Section 281, it is a mere irregularity which is curable by Section 463 on taking evidence that the statement was recorded duly and has not injured the accused in defence on merits. It was observed at page 362 thus:- "What S. 533 (Section 463 of the new Code), therefore, does is to ~ >. permit oral evidence to be given to prove that the procedure laid down in S. 164 had in fact been followed when the court finds that the record produced before it does not show that that was so.

Ifthe oral evidence establishes that the procedure had been followed, then only can the record be admitted. Therefore, far from showing that the procedure laid down in S. 164 is not intended to be obligatory, S. 533 (Section 463 of the new Code) really emphasises that that procedure has to be followed. The section only permits oral evidence to prove that the procedure had actually been followed in certain cases where the ·record which ought to show that does not on the face of it do so. " 33. In the light of the above discussion, we are of the view that Ext. 187 is admissible, having been recorded according to the procedure prescribed under law and the same is voluntary and truthful. '{ 34. Turning now to the medical evidence, Dr. Sanjay Sheoran [PW. I], Dr. R. S. Dalal, [PW. 2], and Dr. Arun Gupta [PW.

15], who conducted the autopsy on the dead bodies of the deceased, have opined that the injuries found on the persons of the deceased were ante mortem in nature, were sufficient to caus<>, death in ordinary course of nature and that injuries could be caused with the iron rod. We have already referred to the testimony of PW 57 wherein he stated that he had seen A-1 removing the iron rod from the store room at the place of occurrence on the night of 23rd August, 200 I which iron rod was recovered from the bed of A-I at the place of occurrence by the • prosecution. The medical evidence that injuries could be caused with the iron rod, the statement of PW. 57 that he had seen A-1 removing the iron rod from the store room at the place of occurrence and its recovery from the bed of A-1 leave no scope for any doubt about the veracity of the prosecution case as against A-1.

Finding of bloodstains on the salwar of A-1 and its matching with the blood group of deceased Sunil and Lokesh further strengthens the case of the prosecution. 35; Insofar as other submissions made by learned counsel appearing on behalfofthe. accused qua ante-timing of FIR, tampering ofExts. 193 and t94 and non-lifting of finger prints are concerned, we need hardly add anything to the exhaustive discussion in the elaborate judgments rendered by the trial court and the High Court while dealing with identical submissions. 36. As a result of our above discussion, we hold that the case against A-1 has been proved by the prosecution beyond reasonable doubt and, therefore, order of conviction of A-1 passed by the trial court and upheld by the High Court is unassailable. 37. We now proceed to consider the case of Sanjiv [A-2], husband of A-1, whose case revolves around the circumstantial evidence, apart from extra-judicial confessions made by him to Sunder Singh, PW 48 and Dr.

Rajni Gandhi, PW. 17, the result of the polygraph test and the recoveries made at his instance. 38. Insofar as circumstantial evidence as against A-2 is concerned, the courts below have very elaborately discussed the material produced by the prosecution while accepting each of the circumstances. In the normal course, there would have been no need for us to go into these circumstances as elaborately as was done by the two courts below in an appeal filed under Article 136 of the Constitution of India, especially when the finding qua conviction is concurrent. However, taking into consideration that the accused were awarded death sentence by the trial court, which has been converted into life imprisonment by the High Court, and that the case in hand is one ofcircumstantial evidence, we think it appropriate and in the interest ofjustice to reappreciate the evidence. 39.

The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused.

It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for some times unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between 'may be true' and 'must be true' and the same divides ~>... conjectures from sure conclusions. 40. In the light ofthe above principle, which principle has been reiterated in a series of pronouncements of this Court, we proceed to ascertain whether + ~. L the prosecution has been able to establish a chain of circumstances so as not to leave any reasonable ground for the conclusion consistent with the +innocence of the accused. 41.

The first circumstance in the chain is the presence of A-2 at Hisar. A-I in her judicial confession made to PW. 62 has stated that she along with A-2 had gone to the Jindal Public School to pick deceased Priyanka@ Pamma for celebrating her birthday at the Kothi at Litani Mor, the place of occurrence. A- I has further stated that while they were returning, due to some altercation between A-land A-2 which ensued after Priyanka@ Pamma informed A-2 _, of infidelity that A- I was having with someone, A-2 got down of the vehicle at Hisar and went away and did not return. That getting down of A-2 on the way after the altercation was a part of the plan hatched by A-I and A-2 to give slip to the investigating agency to mislead it, is discernable from the evidence of Paramjeet Singh, PW. 12, who owns a Fast Food and Bakery Shop at Camp Chowk, Hisar. In his evidence, he has stated that on 23. 8.

2001, A- I accompanied by a man and a girl visited his shop and that the accompanying girl was calling the man as "Jijaji". That A-2 did not alight from the vehicle on the way and was with A-I all the time could be elicited from the statement of A-I made to PW. 62, relevant portion of which is reproduced below: • ·~ "... At about 9 p. m. he [A-2) alighted from the vehicle at Hisar itself and started saying that he is having no need of her and I alone go to my home. I waited for 5/10 minutes that he would come back, but he. did not turn up. After that I along with my sister came to our house at Punia Farm House Kothi at Litani Mor. We reached at about 10:00 p. m. in the Kothi. This is the talk of night of23. 8. 2001. We purchased six pastries from the shop ofHisar for home. We, the three ate two pastries on the shop itself i }-- 42.. This fact is further supported by the statement of Ishwar Singh, PW. 30, who in his testimony has stated that on 23. 8.

2001 he had seen A-I along with her sister and one another person between 9-9. 30 p. m. purchasing r-fruits from a rehri at Barwala and that person was Sanjiv whom he has identified in Court. The trial court as well as the High Court have relied on the evidence of PW. 12 and PW. 30 after giving cogent reasons therefor. In view of the evidence of PW. 12 and PW. 30 and the confession of A-1 [Ext. ~. ,... 187], we are of the view that the prosecution has been able to establish that \. A-2 accompanied A-I to the place ofoccurrence in the night of 23rd August, I- 2001. 43. Insofar as participation of A-2 in the crime along with A-1 is concerned, our attention has been drawn to a photograph in which deceased Shakuntala is lying dead on the floor with her mouth, hands and feet tied which is indicative of the fact that before she was killed, she had shown resistance and in order to overpower her, her mouth, hands and feet were tied.

By no stretch of imagination it could be perceived that tying ofmouth, hands and feet of a person could be possible by one person. It would not have been possible for A-1 \jlone to tie mouth, hands and feet herself which further establishes the fact of presence of A-2 at the place· of occurrence and his having participated in the crime along with A-1. This is the second circumstance in the chain which stands established and points a finger towards none other than A-2 of his having participated in the crime with A-1. 44. We now turn to the third circumstance and i. e. , A-2's clandestine exit from the place of occurrence. We once again turn to the judicial confession made by A-1 to PW. 62 wherein she has admit+ed having left the place of occurrence in the morning of 24th August and returning to it after half an hour, which fact stands proved from the statements of PWs. 57 and 58 as well. Head Constable Dharam Singh, PW. 46, who was on patrolling duty at Surewala ' .

Chowk, has also stated in his testimony that he saw A-1 driving Tata Sumo ,. at a very fast speed and going towards Narwana Chowk. There was no reason for A-I to leave the place of occurrence in the morning of 24th August after having taken a decision to end her life by consuming poison. Her leaving the place of occurrence and coming back after half an hour to that very place lends further support to the evidence of PWs. 57 and 58. That she initially thought of ending her life in accident and that is why,she left the place of occurrence in the morning in Tata Sumo and having decided against it on the way and returned to the place of occurrence after half an hour does not inspire confidence at all. Therefore, in the absence of any infirmity in the evidence of PWs. 57, 58 and 46, which evidence is supported by none other than A-I in her judicial confession made to PW. 62, the third circumstance stands also proved by the prosecution. 45.

In order to establish that A-1 had left the place of occurrence in the morning to take A-2 out therefrom in a clandestine way and leave her at sufficient distance so as to be not seen by anyone, we have also been taken - . >. through the evidence of Head Constable Dharambir Singh [PW 46], conductor Jai Singh [PW. 39], Rajesh Kumar [PW. 55], Jai Dev Hans, [PW 45], Rajinder Parshad [PW 43] and K. A. Khan [PW 3]. PW. 46 in his testimony has stated that while he was on patrolling duty at Surewala Chock, he saw A-I driving vehicle at a very fast speed coming from Barwala side and going towards Narwana Chowk. PW. 39, who was the conductor of the bus that was plying on Hisar to Yamuna Nagar route, in his testimony, has stated that on 24th August, 200 I Bus No. HR 39/7090 started its journey from Hisar at 5 A. M. and t~at when it reached near Jajanwala, A-2, who was wearing pant and bushirt with a bag in his hand, boarded the bus and that he took the ticket from him for Kaithal.

He has further stated that A-2 alighted from the bus at Kaithal. A-2 has been identified by this witness in Court. Rajesh Kumar, PW. 55, a taxi driver, in his testimony has stated that on 24. 8. 200 I when he was at the taxi stand at Kaithal, A-2 hired his taxi at 7. 30 a. m. for going to Panipat and that at that time he was carrying a bag on his shoulder. He has further stated that on the way A-2 got down from the Taxi at Jaidev STD Booth at Kaithal to make a call to Saharanpur and that after making the call he boarded the taxi again and was dropped by him at Panipat. PW. 45, who owned STD Booth at Kaithal, in his deposition has confirmed the factum of A-2 having made atelephone call from his STD booth on the morning of 24th August at Saharanpur on telephone No. 729285. He has also identified A-2 in Court. That A-2 made a call at 7. 20 a. m. on 24th August from the STD Booth of PW. 45 on telephone No. 0132-729285 has been confirmed by PW.

43 Rajinder Parshad, SDE of Telephone Exchange, Kaithal, on the basis of list of outgoing telephone calls made from the said STD Booth in his testimony. K. A. Khan, Divisional Engineer, Telephones, at Saharanpur, in his testimony has stated that telephone No. 729285 on which A-2 made call from Kaithal stands in the name of Sanjiv Kumar. Analysis of evidence of the aforesaid witnesses leads to only one conclusion that A-I had left the place of occurrence in the morning of 24th August along with A-2 so as to provide him a safe exit and to give a slip to the prosecution. This is the fourth circumstance that the prosecution has been able to establish. 46. The fifth and the last circumstance in the chain on which the )prosecution has relied is the recovery of ash of the bloodstained clothes of A-I and A-2 which were burnt by A-2 and chain and two buttons of the bag he was carrying to which we now advert.

During interrngation, A-2 disclosed that after the occurrence his and A-1 's bloodstained clothes were put by him in a plastic bag and those were burnt by him in the fields near village Bhainswal. The police party thereafter was taken to the place where A-2 had .... ,.. burnt his and A- I's bloodstained cloths and plastic bag from where the police team recovered the ash, chain and two buttons of the burnt plastic bag. The fact that A-2 was carrying a bag in his hand on 24th August, 2001 finds mention in the statements of PWs. 39 and 55. Therefore, in view of the recovery of ash of the bloodstained clothes and that of the bag at the ~· instance of A-2, in our view, the prosecution has been able to establish this last link also in the chain of circumstances. 47. We now turn to the extra-judicial confession made by A-2 to Sunder Singh, PW. 48, which, in the submission of learned counsel appearing on behalfof the accused, having been made to a stranger, cannot be relied upon. PW.

48 Sunder Singh, in his testimony, has stated that on receiving a message from Brahm Singh, cousin of A-1 'smother, on 17. 9. 2001, he went to Shamli 'r and met Brahm Singh, who told him that Relu Ram and his family have been killed by both A-I and A-2. After some time, A-2 also reached there and told PW. 48 that he and his wife have killed the entire Relu Ram family with iron rod and the reason given for committing the crime was that Relu Ram was not parting with the share of A-1 in the property. A-2 also told PW. 48 about his clandestine entry to and exit from the place of occurrence. On a suggestion made by PW. 48 to A-2 to surrender before the police, A-2 promised him that he would come on 19th September, 200 I. PW. 48 thereafter informed the police about the incident on 17th September itself. On 19th September, 200 I Brahm Singh and PW. 48 produced A-2 at PWD Rest House, Panipat before DSP Mahender Singh and he was arrested. PW.

48, in his testimony, has stated "' '( that A-2 himself told him about his clandestine ingress to and egress from the Kothi at Litani Mor by hiding himself in the middle seat of the vehicle and that he was dropped by A-I at Village Jajanwala on Narwana Road in the morning. The confession made to PW. 48 is supported by the fact that the weapon used in the crime i. e. , tractor rod, mention of which has been made by A-2 in his confession to PW. 48, was found on the bed of A-I and on the disclosure statement made by A-2 to the police, the ash of the bloodstained clothes of his and A-1 and that of the bag containing the said clothes was also recovered. ~ 48. Learned counsel appearing on behalf of the accused has submitted that PW. 48 being a stranger to A-2 and Brahm Singh, who was not examined by the prosecution on the pretext of having been won over, having been remotely connected to PW. 48 no reliance should be placed on the confession made by A-2 before PW. 48.

In our view, the submission has been made only to be rejected for the reason that in his testimony PW. 48 has stated that he J. - had attended the betrothal ceremony and marriage of A-2. Therefore, question of his being stranger to A-2 does not arise. However, it is well settled by a catena of decisions rendered by this Court that extra-judicial confession made even to a stranger cannot be eschewed from consideration if it is found to have been truthful and voluntarily made before a person who has no reason to state falsely. In the case ofGura Singh v. State ofRajasthan, [200 I] 2 SCC 205, the evidentiary value to be attached to the extra-judicial confession has been explained at page 212 thus:- "It is settled position of law that extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission ofthe crime alleged.

Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has ... no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. Stale of Vindhya Pradesh, AIR (1954) SC 322, this Court again in Maghar Singh v. Stale ofPunjab, [1975] 4 sec 234, held that the evidence in the fomi ofextra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution.

If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence ' provided it is free from suspicion, and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is ·;oluntary and is not the result of inducement, ' threat or promise eqvisaged under Section 24 of the Evidence Act or ... . was brought about in suspicious circumstances to circumvent Sections 25 and 26. The Court is required to look into the surrounding circumstance'to find out as to whether such confession is not inspired · by any improper or collateral consideration or circumvention of law RAM SlNGHv. SONIA [B. N. AGRAWAL, . 1. ) 681 suggesting that it may not be true.

All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Raj v. State ofHaryana, AIR (1991) SC 37. After referring to the judgment in . Piara Singh v. State ofPunjab, [1977] 4 SCC 452 this Court in Madan Gopal Kakkad v. Naval Dubey, [1992] 3 sec 204 held that the extra-judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration. " 49. Examined in the light of the enunciation of law as above, we are of the view that the testimony of PW. 48 as regards the confession made by A- 2 is such as to inspire confidence in our minds. Indisputably, extra-judicial confession was made by A-2 to PW.

48 prior to his arrest by the police and, therefore, question of it being made under any inducement, threat or promise does not arise. Moreover, there was absolutely no reason for PW 48 to unnecessarily implicate the accused, as he had no animus against him. 50. In view of our above discussion, we see no reason to disbelieve the evidence of PW. 48 and hold that A-2 made extra-judicial confession which is voluntary and truthful. 51. Insofar as motive qua the crime committed is concerned, it is clearly borne out from the factual matrix of the case on hand that both the accused had an eye on the property of deceased, Relu Ram, which was in crores and in order to gain full control over the property and to deprive deceased Relu Ram from giving it to anybody else, both the accused persons have eliminated his whole family. We have been taken through the extra-judicial confession -{ made by A-2 to PW.

48 wherein he has indicated that as deceased Relu Ram was not parting with the share of A-I in the property, both A-I and A-2 together have done to death his whole family. Therefore, the motive qua the crime committed stands proved in the present case. 52. We now turn to the extra-judicial confession made by A-2 before Rajni Gandhi, PW. 17, wher~in also A-2 stated that he and A-I had murdered the deceased persons. 53. Indisputably, the extra-judicial confession that A-2 has made to PW. 17 on 24th and 25th September, 200 I was made while he was in police custody, having been arrested on 19. 9. 2001. It is apt to reproduce the relevant portion of the statement made by PW. 17 in her deposi(ion which is to the following effect: "..... On 24. 9. 2001 police brought Sanjeev Kumar. for lie detection test. After that myself and Sanjeev Kumar accused conversed with each other in a room/library of the FSL Madhuban. Police went away at that time.

After completing the formalities that is of consent etc. , I called for the police to take both the persons for lunch as by that time, lunch interval has started and it was necessary for a person not to be hungry while going through the lie detection test. . When Sanjeev Kumar was taken by the police for lunch on 24. 9. 2001, he was again brought after lunch interval. Then Sanjeev Kumar was put on polygraph machine. Lie Detection test continued for one and a half hour. During that process, Sanjeev Kumar used to stop his breathe voluntarily and on th