Inder Dev Dua, J.
1. This judgment will dispose of the following cases:
1. Criminal Appeal No. 120-D of 1962, Netar Pal v. State.
2. Criminal Appeal No. 121-D of 1962. Netar Pal v. State against the conviction of Netar Pal under Section 20 of the Indian Arms Act.
3. Criminal Revision No. 273-D of 1962, Babu Lal v. State, praying for enhancing the sentence of life imprisonment to Netar Pal to death and for setting aside the acquittal of Mst. Jamuna Devi.
4. Criminal Revision No. 341-D of 1962, State v. Netar Pal praying for enhancing the sentence passed on Netar Pal and
5. Criminal Revision No. 148-D of 1962, Babu Lal v. State etc., praying for setting aside the order of the Additional Sessions Judge dated 11-4-1962 directing the ornaments recovered from a box from the house of the deceased, the key of which was produced by Mst. Jamuna to be returned to her.
2. Netar Pal son of Jhuna Mall, aged about 21 years, his brothers Har Parshad, aged about 16 years and Om Parkash, aged about 23 years and their father Jhuna Mall, aged about 45 years along with Mst. Jamuna Devi, wife of Gurdial deceased, aged about 31 years and Puran son of Sita Ram, aged about 26 years, who were all residents of Jaipuria Mills, Sabzi Mandi, Delhi, were prosecuted under Sections 120B and 302 read with 120B, Indian Penal Code, for conspiring to commit the murder of Gurdial deceased and actually committing his murder in pursuance of this conspiracy. Gurdial deceased, according to the prosecution version, was employed as a treasurer in the Ganesh Flour Mills, Sabzi Mandi, Delhi. His wife Mst. Jamuna Devi developed a liaison with Netar Pal accused who along with his father and brothers used to live in the same vicinity. Puran accused was their friend. Gurdial having come to know of the liaison between his wife and Netar Pal not only reprimanded them but is also stated to have given both of them beating. The deceased was an old man of about sixty years but he was known to possess plenty of money. Netar Pal and Jamuna are stated to have decided to get rid of the deceased so that they may also have the benefit of getting his property. With this object the accused persons mentioned above are stated to have entered into a conspiracy to murder Gurdial. On the night between 13th and 14th of June, 1961 at about 2 or 2.30 A. M. Gurdial was murdered and the accused persons mentioned above gave out that as Gurdial was a very staunch Congressman some members of the Jan Sangh party had killed him.
3. The prosecution evidence consists of a confession made by Mst. Jamuna which was later retracted, two love letters which passed between her and Netar Pal appellant, recovery of a sword from a tank nearby and of a scabbard, the recovery of a bloodstained shirt from the person of Netar Pal, recovery of bloodstained earth from the vicinity of the place of occurrence, and, the motive inspired by the liaison between Netar Pal and Mst. Jamuna. The learned Additional Sessions Judge. Delhi was not impressed by the evidence regarding consipracy which, according to him, consisted of the statement of Panna Lal, P. W. 1 and their retracted confessional statement of Mst. Jamuna. The learned Judge did not find it possible to place any reliance on the evidence of P. W. 1 because. Inter alia, of conflict between his testimony and that of Mst. Jawala, P. W. 21, in whose jhugi the alleged conspiracy was stated to have been hatched and also because P. W. 1 did not depose about the words actually used by Mst. Jamuna when agreeing to the proposal made by Netar appellant that 'he would manage about Gurdial'. The retracted confession of Mst. Jamuna on the point of conspiracy mentions Har Parshad, Om Parkash, Jhuna Mall and Puran also to be parties to the conspiracy to murder Gurdial but it is silent as to the details about the part which each one of them was to play and also even as to the time when they joined the alleged conspiracy. The Court thus held the statement of P. W. 1 and the retracted confession of Mst. Jamuna to be wholly inadequate for establishing the charge of conspiracy to murder Gurdial.
4. Netar Pal was, however, found to have been guilty of the murder of Gurdial deceased on the basis of the retracted confession of Jamuna, the recovery of a shirt from his person, Exhibit P.5, which was stained with blood, recovery of kirpan P.1 and sheath, P. 10 which had been purchased by Netar Pal from Badal Singh, P. W. 8 and the motive on the part of Netar Pal to get rid of Gurdial deceased.
5. Before us the learned Counsel for the appellant has, to begin with, challenged the admissibility of the retracted confession made by Mst. Jamuna as against him. It has been stressed that in so far as the charge of conspiracy is concerned the trial Court has acquitted ail the accused and there has been no appeal against acquittal by the State, In so far as the offence of murder is concerned the confession 'Exhibit P.Z/3' does not inculpate its author Mst. Jamuna, with the result that according to the submission of the learned Counsel it is not a confession which can be held admissible. Reliance for this submission has been placed on Pakala Narayana Swami v. Emperor AIR 1939 PC 47 and Balbir Singh v. State of Punjab, : 1957CriLJ481 . According to the Privy Council decision a statement that contains self exculpatory matter cannot amount to a confession if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. The Supreme Court decision lays down that a confessional statement of one accused may be taken into consideration against the other accused if it fulfils the conditions laid down in Section 30 of the Evidence Act and one of the conditions is that the confession ,must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration.
In the light of the ratio laid down by the Supreme Court, it appears to me that the retracted confession made by Mst. Jamuna which does not implicate her in the offence of Gurdial's murder cannot be treated as evidence against the appellant. Mst. Jamuna's confession may subject to certain limitations be proved against her but it is obviously not 'evidence' against Netar Pal in the strict sense within the contemplation of Section 3, Indian Evidence Act. It can only be taken into consideration against him under the provisions of Section 30 of the above Act which appears to be based on the view that an admission by an accused person of his or her guilt provides some kind of sanction in support of the truth of the confession against the person making it as well as against others. Now, though this Section makes such a confession evidence on which the Court may act, it does not lay down specifically that such confession amounts to proof. And then a confession is neither required to be given on oath nor is it required to be made in the presence of the other accused persons, whom it also implicates and nor can it be tested by cross-examination. Is it then wrong to describe it as an extremely weak type of evidence and a piece of which should not be permitted to form' the foundation of a conviction but only be used in support of other evidence? As at present advised, I do not think so. As I understand the legal position it is this. If the Court is not prepared to act on the other evidence even though, if believed, it would be sufficient to sustain a conviction, it may use the confession to lend assurance to the other evidence and fortify itself in accepting such other evidence. The confession of accused would, on this view not be in itself substantive evidence and can only be taken into consideration as provided by Section 30, Evidence Act.
The position of a retracted confession of a co-accused would a fortiori be still worse, In any case, even when the Court takes such a confession into consideration against a co-accused it requires as a matter of practice and prudence, strongest and fullest corroboration on material particulars as to the connection of the co-accused with the crime. This position seems to me to have been ignored by the Court below while considering the case against the appellant. The learned Counsel for the State before us has not found it easy to controvert this position. On the construction of the confession made by Mst. Jamuna he indeed had to agree that the confession did not truly implicate here in the commission of the offence of murder. Here silence at the time of murder and her alleged agreement not to raise hue and cry, in my opinion, did not bring this confession within the rule just stated and the ratio of the Supreme Court decision.
6. Again, if Mst. Jamuna has not been convicted on her retracted confession it might well be asked as to how far the sanction in support of its truth can safely be forthcoming against Netar Pal. This important aspect has also been emitted from consideration by the trial Court.
7. Coming to the other evidence, the sword or the kirpan Exhibit P.1 was undoubtedly recovered from a nearby tank but it had no bloodstains on it, the kirpan may certainly be held proved to have been purchased by Netar Pal from Badal Singh, P. W. 8, but this by itself does not connect the appellant with the offence in question. The Court below seems to have attached too much importance to the recovery of the kirpan which is hardly justified on the facts and circumstances of this case. The sheath Exhibit P. 10 too is of little or no assistance to the prosecution. The bloodstained shirt recovered from the appellant's person undoubtedly constitutes a relevant piece of evidence but this by itself is again in my opinion, wholly insufficient to connect the appellant with Gurdial's murder according in the standard of proof required in a criminal trial. The existence of bloodstains on the appellant's shirt was not brought to the appellant's notice in the committing Magistrate's Court and he was not asked to explain their existence. In the trial Court, however, when asked to explain their existence on his shirt the appellant replied that as he had been getting injections at the relevant period of time it was possible that some bloodstains might have stuck to the shirt by reason thereof. However improbable the explanation, the mere existence of such bloodstains is hardly adequate by itself or even when taken along with the recovery of the kirpan, to connect the appellant with the crime in question.
8. This brings me to the question of motive on which the learned Counsel for the State has placed most emphatic reliance. It is true that the existence of Gurdial might well have been considered to be a serious obstacle by the appellant and Mst. Jamuna in the matter of their continued illicit, relationship, but motive as is well known, cuts both ways. Just as it might have impelled or induced Netar Pal to kill Gurdial, it might equally writ have aroused everybody's suspicion against Netar Pal when Gurdial was found dead on the night between 13th and 14th 01 June 1961. It is in evidence that this liaison was known to most people in the vicinity and as a matter of fact the charge of conspiracy is also confined to Netar Pal, his two brothers, his father and his friend along with Mst. Jamuna.
9. I may in passing also notice the argument of the existence of blood drops on the passage from the place of occurrence to a spot in front of the houses of Netar Pal and GujaRal P. W. 3. It is noteworthy in this connection that some photographs admittedly having been taken of the various places at the spot have not been produced at the trial. A suggestion was thrown by the defence to Shri Har Dev, Sub Inspector, P. W. 31, that these photographs had not been produced because they disclosed blood marks in front of the house of GujaRal P. W. 3, but as expected, this was denied by the witness. But, this apart, in my opinion, the existence of blood marks on the public way which are not traceable to the house of the appellant cannot appreciably advance the prosecution case against the appellant.
10. The learned Additional Sessions Judge has, in my opinion, not properly appreciated the evidentiary value of the alleged confessional statement made by Mst. Jamuna and once this statement is ruled out there is practically nothing on this record which can establish the appellant's guilt beyond the possibility of a reasonable doubt. The recovery of the kirpan has also been given undue importance by the Court below. It appears to me that one cannot reasonably exclude the possibility of the appellant having thrown the kirpan in the tank in panic, on finding that suspicion had or was likely to fall on him for this murder. Here it may be remembered that however great the suspicion against an accused and however strong the moral belief and conviction of the Judge, unless the guilt of the accused is established beyond the possibility of a reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted. Such is the guiding principle of our Criminal Jurisprudence. The evidence on the present record, in my opinion, does not come up to the required standard. I would in the circumstances allow the appeal and setting aside the appellant's conviction under Section 302, Indian Penal Code, acquit him. It is of course regrettable that such a gruesome murder should go without the real culprit being punished but the Courts can do precious little in the matter.
11. Regarding Criminal Revision No. 121-D of 1962, the appellant has served out the sentence and his counsel did not strongly press it. It is thus dismissed.
12. The revision (Cr. Revision No. 341-D of 1962) filed by the State for the enhancement 01 sentence must thus also automatically fail; so must the revision (Criminal Revision No. 273-D of 1962) filed by Babu Lal for the enhancement of the appellant's sentence and also against Mst. Jamuna's acquittal. After hearing, the learned Counsel for Babu Lal, in my opinion, the charge of conspiracy against Mst, Jamuna is unsustainable and the trial Court was not very much wrong in acquitting her. It may in this connection be mentioned that the State has not thought fit to appeal against her acquittal and I would be disinclined on private revision, on the facts and circumstances of this case, to set aside the order of her acquittal and to send the case back for retrial only on the basis of her retracted confession which did not impress the Court below.
13. Coming now to Cr. Revision No. 148-D of 1962, it is clear that the ornaments were recovered from a box the key of which was produced by Mst. Jamuna. I do not understand how it was possible for the trial Court to pass any order other than the one passed by it. Mst. Jamuna was undoubtedly living with the deceased as his wife since a long time. The contention that she was only a mistress having not been formally married need not detain us because if for 10/12 years they have lived together as man and woman that would be enough to confer on them the status of husband and wife, thereby entitling her to claim these ornaments in these proceedings. At least no cogent ground is shown for interference with the impugned order on revision at Babu Lal's instance. This revision also thus fails and is hereby dismissed.
R.P. Khosla, J.
14. I agree.