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Kishan Singh Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 227 of 1973
Judge
Reported in1979WLN247
AppellantKishan Singh
RespondentThe State of Rajasthan
DispositionAppeal dismissed
Cases ReferredBalbir Singh v. State of Punjab
Excerpt:
criminal trial - appreciation of evidence--witness changing version--held, she cannot be relied upon.;we are reluctant to place any reliance on the testimony of this witness who appears to have no respect for truth and who could change her version in the manner she likes.;(b) evidence act - confession--accused not detained in police custody after 9-5-1972. admission showing that accused was treated will by police--held, confession is voluntary.;there is nothing on the record to show that the at pliant was detained in police custody after may 9, 1972, by the police merely for extorting confession from him and as the appellant himself on being questioned by dinesh chandra, sub-divisional magistrate, bhim, clearly admitted that be was treated well by the police during the period he remained.....k.d. sharma, j.1. this is a criminal appeal filed by kishan singh against the judgment of the additional sessions judge, udaipur, date february 22, 1973, by which the appellant was convicted under section 302, i.p.c. and sentenced to undergo imprisonment for life.2. the incident that led to the arrest and prosecution of the appellant may be briefly described as follows : ram singh, deceased, was married to mst. dhanni. he used to live with his wife in village kachwali. he owned & possessed some land which he cultivated he was interested in singing religious songs about ten years before his murder, he went to ahmedabad for earning his livelihood. from there he used to pay visits to his village once or twice in a year krshansingh appellant was the disciple of ram singh, deceased. in his.....
Judgment:

K.D. Sharma, J.

1. This is a criminal appeal filed by Kishan Singh against the judgment of the Additional Sessions Judge, Udaipur, date February 22, 1973, by which the appellant was convicted under Section 302, I.P.C. and sentenced to undergo imprisonment for life.

2. The incident that led to the arrest and prosecution of the appellant may be briefly described as follows : Ram Singh, deceased, was married to Mst. Dhanni. He used to live with his wife in village Kachwali. He owned & possessed some land which he cultivated He was interested in singing religious songs About ten years before his murder, he went to Ahmedabad for earning his livelihood. From there he used to pay visits to his village once or twice in a year Krshansingh appellant was the disciple of Ram Singh, deceased. In his absence, the appellant was asked by the deceased to cultivate his land. During the absence of the deceased from his village the appellant developed illicit intimacy with Mst. Dhanni, who gave birth loan illegitimate son. Barn Singh returned from Ahmedabad but inspite of his return the appellant continued to have illicit relations with the wife of the deceased. The illicit relations between the appellant and Mst. Dhanni were known to toe villagers who frequently talked amongst themselves about the a This caused annoyance to the deceased who turned out his wife Mst. Dhanni from his house after depriving her of all the ornaments Mst Dhanni along with her daughter ml son began to live with her parents. After some time she went to her sister's house and stayed with her sister. While she was staying at her sister's house, the appellant visited her and asked her to come back to her husband's house, because her husband Ram Singh, deceased, was alienating his entire property. Mst. Dhanni declined to return home but, upon persuasions by the appellant and her brother, she eventually came back to village Kachwali with her brother in law. Ram Singh, deceased, thereupon convened a meeting of the Panchayat. In the meeting he agreed to keep Mst. Dhanni in his house on the express condition that in future she would have no illicit connections with the appellant and that the appellant would never come to his home Mt. Dhanni agreed to abide by the aforesaid conditions and so Ram Singh brought her to his house and gave her some ornaments After five or six days of her return to her husband's house the appellant met her clandestinely and told her that he would kill her husband Ram Singh as the latter had defamed him in the meeting the Panchayat. Mst. Dhanni requested the appellant not to kill her husband but the appellant was adamant. He told Mst. Dhanni that he would get some letters containing threats to the life of Ram Singh and purported to have been written by Bhils, affixed on a conspicuous part of his rouse in order to shift the responsibility of his murder on the Bhils. The after, the appellant carried cut his above plan in execution and affixed two such letters with some interval on the conspicuous part of the house of Ram Singh On seeing those letters the deceased consulted Basti Mal Mahajan and Mala Ram who advised him to hand over those letters to the police for investigation into the matter. In pursuance to the advice given to Ram Singh deceased, the two letters were produced by him before Sukh Lal, Literate Constable at police out-post Baggar, on May 9, 1972. Upon receipt of the letters Sukh Lal proceeded to make an inquiry from the Bhils with whom the deceased had a quarrel over some land. Upon inquiry the Bhils disclosed in the presence of the deceased that there was no dispute between the parties over the land. The deceased also admitted before Sukh Lal that no dispute existed between him and the Bhils over the land. The appellant, however, continued to pay visits to Mst. Dhanni in the absence of her husband and on one occasion he gave her some medicine with a direction that she should give it to Ram Singh after mixing it in the bread. Mst. Dhanni at first refused to mix the poisonous medicine in the food to be given to her husband but, later on, when threatened to do so by the appellant, she mixed the poisonous element in the bread and give the bread to her husband for eating. Ramsingh ate the bread & vomitted the whole day. He did not die of the poisoning as the village Vardya came to his help & treated him well. As a result of the poison given to him R.S. however, fell ill & was confined to bed for two or three days, Four of five days after this incident the appellant again visited Mst. Dhanni and asked her to give another dose of poison to her husband but Mst. Dhanni declined to do so. Thereupon, the appellant held out threats to her and told her expressly that he would kill Ram Singh at any cost. The appellant made it clear to Mst. Dhanni that if she disclosed this fact to any body-else, she also would be killed by him Thereafter, on May 9, 1972, Mst. Dhanni asent to the house of Hira Singh, with her son Sardara and her nephew Puniya at about 8 or 9 p.m. to attend the marriage ceremony of the latter's son. The deceased also had gone out for singing religious songs in some temple Mst. Dhanni returned from the house of Hira Singh in the mid-night. When she came back to her house, she saw Ram Singh sleeping on a cot over a Ghabutra of his house. Her son Sardara slept on the roof of the house. Mst Dhanni went to sleep outside the gate of the house in the Verandah. Her nephew Puniya also slept on the ground near the cot of Ram Singh deceased. The deceased came inside the house and after staying there for some minutes, again went out for sleeping on the cot Mst. Dhanni and her son had gone to sleep, she woke up all of a sudden on account of her sleep being disturbed by a sound produced by dashing a stone against the head of some person. She immediately there after heard voice of 'Aha' 'Aha' coming from the throat of her husband On hearing the voice, Mst. Dhanni ran to the place where her husband was sleeping and saw the deceased moving one of his hands without uttering any word. Mst. Dhanni then saw Kishan Singh appellant scaling over the wall of an enclosure having an axe in his hand. She called the appellant but the latter ran away from there without responding to her call Mst. Dhanni then raised a hue and cry which attracted Tila Singh, Raju Singh and Moti Singh and some other villagers to the place of occurrence. After a short while other villagers also came there along with Kishan Singh appellant. At that time the appellant told the villagers that Ram Singh deceased should not have slept outside his house when he had enmity with Bhils. A written report of this incident was made by Tila Singh with the Station House Officer, at police station, Deogarh, on May 9, 1972 at 7.30 a.m. The Station House Officer registered a criminal case under Section 302, IPC on the basis of the report and took up the usual investigation info the matter. Naravan Singh, Station House Officer, rushed to the place of occurrence and prepared a site-plan and a site inspection memo. He saw one stone lying by the side of the cot of the deceased. He took that stone into his possession He inspected the dead body of Ram Singh and found multiple injuries on the head and thigh thereof He prepared a Parchnama and took one bloodstained 'Gadela' and a bed-sheet into his possession. Then he handed over the investigation of this case to Shri Kameshwar Prasad, Circle Officer, who arrested the appellant vide memo of arrest Ex P 7 on May 9, 1972. After his arrest, the appellant, while in the police custody, gave the Circle Officer an information that he had kept concealed one axe having wooden handle behind and earthen container lying in his house and that he was ready and willing to get recovered at his instance. The appellant further informed the Circle Officer than he had got two letters written one by Bheru Singh Rawat and Anr. by Shanker Lal for affixing them on the house of the deceased. The Circle Officer recorded the above information in a memo Ex P 17 and recovered the axe with its wooden handle from the house of appellant wherein it was lying behind the furthers container commonly used for storing grain. As the axe with its wooden handle had stains of blood on it, it was seized and sealed by the Circle Officer in the presence of Motbirs. Then postmortem examination over the dead body of Ram Singh was performed at the place of occurrence by Dr Arun Kumar, Medical Officer, Primary Health Centre, Deogarh, the very day, i.e. on May 9, 1972. Upon examination the Doctor found the following injuries on the body of Ram Singh:

1. transverse lacerated wound 2 1/2' x 1/2' x bone deep on right forehead;

2. punctured wound 3/4' x 1/8' x 3' on anterior surface of right thigh;

3. oblique abrasion 5' x 1/4' on anterior surface of left thigh;

Upon dissection of the dead body, he noticed comminuted fracture of right frontal bone and laceration of the right frontal lobe of brain with its substance associated with punctuate hemorrhage. In his opinion, the death of Ram Singh occurred due to shock and haemorrhage caused by the injuries of skull and brain According to the Doctor, all the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. The injuries could be caused by the wrong side of an axe. There after, on May 18, 1972, the appellant gave the Circle Officer another information which led to the recovery of a Khakhi shirt from his house. The shirt also was taken into possession by the Circle Officer in the presence of Motbirs Later on, the clothes of the deceased, i.e. one 'Bandi', one 'Dhoti', one Gadela' and one bed-sheet, on which he was lying, and the axe with its wooden handle were sent to the Chemical Examiner for analysis. The Chemical Examiner found all the articles positive for blood and the Serologist also reported that all the aforesaid articles were stained with human blood. The appellant expressed his desire to make a confessional statement about his guilt before a Magistrate. So he was sent to judicial lock-up on May 20, 1972 and thereafter on May 22, 1972, his confessional statement was recorded by Dinesh Chandra Sharma, Sub-Divisional Magistrate, Bhim The Circle Officer collected other necessary evidence in the case & eventually submitted a Chilian against the appellant for the offence under Section 302, IPC in the court of the Munsiff Magistrate, Bhim, who, after holding an inquiry preparatory to commitment, committed the appellant to the court of the Sessions Judge, Udaipur, for trial under Section 302, IPC. The appellant was tried by the Additional Sessions Judge, Udaipur, as the case was transferred to him by the Sessions Judge. The Additional Sessions Judge, after concluding the trial, found the appellant guilty of the offence of murder and sentenced him to imprisonment for life Aggrieved by his conviction and sentence, the appellant has preferred this appeal.

3. We have carefully perused the record and heard Mr. Doongar Singh, learned Counsel for the appellant, and Mr. N.S Acharya and Mr. S.L. Mardia, Public Prosecutors for the State. Firstly, it has been contended on behalf of the appellant that the learned Additional Sessions Judge committed a grave error in placing reliance on the testimony of Mst. Dhanni, PW 14. According to the learned Counsel, the evidence of Mst. Dhanni should have been outright rejected for want, of independent corroboration as she was an accomplice and as her evidence was not free from infirmities Secondly it was argued by Mr. Doongar Singh counsel for the appellant that the confessional statement made by the appellant was not voluntary & true as it was obtained from him by maltreatment after prolonged police custody. Thirdly, it was urged that even if the confessional statement of the appellant is taken to be free and voluntary, it was retracted by him at the earliest opportunity and so it could not legally be formed a basis for conviction without independent corroborative evidence which was lacking in this case. The Public Prosecutors on the other hand, vehemently contended before us that the conviction was rightly based in this case on the retracted confession of the appellant as it has been amply corroborated by other independent evidence in essential particulars. It was further urged that the evidence of Mst. Dhanni is worthy of credence as she was not a participant in the commission of the crime of murder and she claimed to have seen the appellant scalling down the wall of her enclosure with an axe in his hand immediately after the occurrence. The Public Prosecutors further submitted that the confessional statement made by the appellant was free, voluntary and true and could safely be acted upon and provided surer basis for conviction of the appellant under Section 302, IPC, especially when it found support from other independent evidence on the record such as recovery of the blood-stained weapon of the offence and the evidence of two witnesses who wrote the two letters containing threats to the life of the deceased at the instance of appellant for being affixed on the conspicuous part of the house of the deceased.

4. We have given our anxious consideration to the rival contentions. The prosecution had relied upon the evidence of Mst. Dhanni, wife of the deceased, who claimed to have seen the appellant scaling down the wall of her enclosure soon after the occurrence with an axe in his hand. The evidence of Mat. Dhanni is that she was having illicit relations with the appellant during the absence of her husband from the village in which she lived. She further stated in her deposition that the villagers frequently talked of her illicit intimacy with the appellant even after the return of her husband from Ahmedabad. This caused great annoyance to her husband who turned her out of his house after depriving her of all the ornaments. When she was turned out of her husband house, she began to live with her parents for some time and then went to her sister's house where from she was brought again to her husband's house by the appellant and her brother-in-law. Her husband convened a Panchayat before allowing her to live wish him. In the meeting of the Panchayat her husband agreed to permit her to live with him upon an express condition that she would not have illicit intimacy with the appellant in future and would not allow the appellant to meet her in her husband's house. Mst. Dhanni agreed to abide by the above terms and so she was allowed by the deceased to live with him. Mst Dhanni, however, admitted that she once gave her husband poison in a bread at the instance of the appellant but her husband survived after being treated well by the village Vaidya. She further admitted that the appellant again asked her to give poison to her husband but she declined to do so. According to her version, the appellant expressly told her that he would kill Ram Singh deceased. On the day of occurrence she claimed to have been sleeping in the verandah at some distance from her husband who was lying asleep on a; cot on a Chabutra of his house In the night she woke up as her sleep was disturbed by a sound produced by a stone having been dashed against the head of some-one. When she-woke-up, she heard cries 'Aha-Aha' coming from the throat of her husband. There upon, she rushed to the place where her husband was lying on the cot. She saw her husband waiving one of his hands without uttering any word from his mouth. She then saw the appellant jumping down over the wall of her enclosure having an axe in her hand. She called the appellant but the latter ran away without responding to her call.

5. The above statement made by Mst. Dhanni is highly unworthy of credence. The reason is that she did not state before the committing court that she had seen the appellant scaling over, the wall of her enclosure having an axe in his hand soon after the occurrence She was confronted with relevant portion C to D of her statement Ex P 22 which she gave before the committing court, and wherein she stated that she came to know that some one had come to kill her husband only when she placed her hand on the forehead of her husband and found it wet with blood. In her police statement Ex. D. 4 also she omitted to say that she had seen the appellant jumping down over the wall of her enclosure with an axe in his hand. When confronted with her previous statement she could not afford any reasonable explanation as to why she omitted to state these facts therein. Apart from this, Mst. Dhanni stated in her deposition at the trial that she disclosed to Tila Singh, Mod Singh and Hira Singh that she had seen the appellant running away with an axe in his hand soonafter the occurrence, but curiously enough, Tila Singh. PW 1, Moti Singh, PW 4 and Hira Singh, DW 2 did not say in their Oppositions that they were informed by Mst. Dhanni that Ram Singh had bf en killed by the appellant and that she had seen Kishan Singh jumping over the wall of her enclosure with an axe in his hand. Mst. Dhanni way further confronted with her previous statement Ex P 22 which she gave before the commiuine; court and wherein she did not state that the appellant had held out threats to her that if she disclosed to others that he appellant wanted to kill Ram Singh, she would also be killed If Mst. Dhanni had seen the appellant jumping over the wall of her enclosure with an axe in his hand soon after the occurrence and if she had called him out, she would have surely disclosed these facts to the villagers who had assembled thereon hearing cries or to the police or to the committing Magistrate. Consequently, we are reluctant to place any reliance on the testimony of this witness who appears to have no respect for truth and who could change her version in the manner she liked. There is no other eye witness to the occurrence. The prosecution has further relied upon the confessional statement Ex P 15 of Kishan Singh appellant which was taken down by Shri Dinesh Chandra Sharma. Sub Divisional Magistrate, Bhim, on May 22, 1972, under Section 164, CrPC. The relevant part of the confession when translated into English read as follows:

About ten or twelve years ago I accepted Ram Singh Rawat deceased as my Guru. Ram Singh after accepting me as his disciple permitted me to have access to his wife With his permission I have been keeping his wife Mst. Dhanni as my wife for last 12 years. We used to eat and drink together. With Ram Singh's consent I had treated Mst. Dhanni as my wife. Dhanni has one boy, aged about thirteen or fourteen years. I purchased land in the name of Ram Singh, deceased, about seven or eight years ago and paid Rs 300/-, at its price. Ram Singh paid a sum of Rs. 109/-, to me within one year. I demanded many a time the remaining amount of Rs. 191/-, but after several years and about four or five months ago from today he gave this amount to me. As he paid the amount after a long delay, he was very much annoyed with me on this score Thereupon, he turned out Mst. Dhanni rafter depriving her of the ornaments and after giving a heating to her. Mst. Dhanni then went away to village Dhand situated on other side of Surajpura to live with her parents along with her son who also was beaten by the old man, i.e. Ram Singh. Thereafter, I made Dhanni's brother understand that if Ram Singh died, he would leave his son to starve. So send Dhanni to his house. I used to supply food and other necessaries to Dhanni during the period of ten or twelve years as the old man, i.e. Ram Singh did not provide her full food. At my request about 3/4 months ago Dhanni's brother and brother-in-law brought Dhanni to village Kachwali and left her there. The villagers asked Ram Singh not to turn out his wife and son as to where they would go Thereupon, the old men kept his wife and son with him and returned silver 'Karis' to her. The remaining ornaments, i.e. silver 'Hansali', gold Lung 'Phuli' and silver 'Gajras' were not given to her. Ram Singh kept concealed these ornaments in his house. Thereafter Ham Singh did not provide full food to his wife and kept her half starved during three or four months. He stored grain in another house. So I gave some advice to Mst. Dhanni and gave a sum of Rs 100/, to Bahadur Singh resident of village Kherwali for giving some medicine to the old man so that the latter may turn mid. Bahadur Singh supplied the medicine to Ram Singh but Ram Singh vomitted it out and did not turn mad. So we did not pay to Bahadur Singh the remaining amount of Rs. 200/-, which was agreed to be paid to him upon Rara Singh having turned mad Then I thought of breaking the hands and fret of the old man, i.e. Rim Singh. Mst. Dhanni asked me not to do so, but I thought her son would be ruined, because the old man was about to alienate the properties. When Dhanni was turned out about three or four months ago, the old man, i.e., Ram Singh had sold away his one milching cow to another person for Rs. 200/-, and gifted away one she buffalo to his sister. From this I thought how long I would feed her son. So I was led astray by the Almighty and at mid-night on the 10th day I went to Ram Singh's house. Dhanni was inside. I entered the house after scaling over its back-side wall, Ram Singh was sleeping on a cot outside the house having covered his body with a bad-sheet. With intent to damage his eyes I struck his head with a stone Then I threw the stone and hit him on his left leg with an axe which I had taken with me Ram Singh did not speak. So I thought he may not die and so I ran away after striking a mild blow on his right leg with the axe When I ran away at a distance often or twenty yards from there, I heard the voice of the old man such as 'Aha-Aha'. Then I thought that he would not die. Then Ram Singh's wife came out while uttering what had happened, what had happened and cried 'Mar Diya', 'Mar Diya'. I came to my house and slept there. Then some persons came to my house and I also went with them to the place of occurrence After fifteen minutes, i.e. at about 12.15 am. we reached there but before that Ram Singh had died. I did not want to kill him. I simply wanted that he may be confined to bed in an injured condition and his son may not be left without means. It was not my intention 10 murder him. I wanted to injure him. This is all. I do not want to say anything more I committed this mistake for the sake of the boy otherwise I had no enmity with him, i.e. Ram Singh.

6. It will not be out of place to mention that the above confession which had been made by the appellant was repudiated by him at the trial, when he was examined under Section 342, old Cr.P.C. The appellant, when questioned about the confession in his statement, pleaded that before he made the confessional statement, he was badly beaten by the police. He no doubt admitted to have made the confessional statement Ex. P. 15 but, according to his plea, he gave the statement out of fear of police. He further stated that he knew nothing about the occurrence but blurted out all that was said to him by the Circle Officer. The trial Judge came to the conclusion that the confession made by the appellant, though retracted at the trial, was voluntary and true because there was no evidence of ill-treatment by the police. Mr. Doongar Singh, learned Counsel for the appellant, however, contended before us that the confessional statement made by the appellant was not voluntary, as it was not made with the desire, born of penitence and remorse but was the off-spring of police pressure and coercion. In support of his above contention, he relied upon the following facts and circumstances from which, according to him, a legitimate inference could be deduced that the confession was obtained from the appellant either by police pressure or by ill treatment meted out to him during the period he remained in police custody:

1. the appellant was arrested by the police on 9th May, 1975 and was unnecessarily detained in police custody upto May 20, 1972 on which date he was sent to judicial lock-up; while the confessional statement was recorded on May 22, 1972;

2. sufficient time was not given by the Sub-Divisional Magistrate for reflection before recording his confessional statement.

After giving our anxious consideration to the above contentions put forward by Mr. Doongar Singh, learned Counsel for the appellant, we re of the view that there is no merit in the submissions made above. There is no material on the record to show that the confession was induced by improper means or was obtained by mal treatment. As stated earlier, the appellant was arrested by the Police on May 9, 1972 as is evident from the memo of arrest Ex P. 7. The appellant no doubt remained in police custody upto May 20, 1972 and on this day he was sent to judicial custody by Shri Dinesh Chandra Sharma, Sub Divisional Magistrate, Bhim. In this manner, the appellant was kept in police custody for about eleven days. There is no material on the record to show or suggest that during this period the appellant was maltreated by the police or induced by any promise of pardon or by improper means to make a false confessional statement. There is proper explanation from the side of the prosecution as to why the appellant was kept in police custody for eleven days The explanation given by Shri Kameshwar Prasad, PW 13, in his statement is that after the recovery of an axe on May 9, 1972, at the instance of the appellant and in consequence of his information recorded under Section 27 of the Evidence Act, he applied for further remand of the appellant to police custody for further investigation, and he made a note to this effect in his police diary After the appellant was remanded to police custody, he further interrogated him and on 18-5-1972, the appellant gave him an information which led to the recovery of a 'Khakhi' shirt from his house wherein it was lying concealed over an earthen container Thru on 19-5-72, also he interrogated the appellant. On 19-5-1972, the appellant expressed his desire to confess his guilt. So he was sent to judicial custody on 20-5-72 Kameshwar Prasad categorically denied that the appellant was detained in police custody for extorting his confession or to it he was beaten or maltreated during the period between May 9 and 19, 1972. The above explanation given by Shri Kameshwar Prasad appears to be true. The information given by the appellant, which led to the discovery of a 'Khakhi' shirt from his house, is contained in Ex P 15 dated May 18, 1972 and it is proved by Shri Kameshwar Prasad PW 13. Likewise, the recovery of the 'Khakhi' shirt is proved by the testimoni's of Shri Kameshwar Prasad Investigating Officer and Basti Mal Motbir, PW 3 Hence, the argument of Mr. Doongar Singh that the prolonged police custody immediately before the making of the confessional statement is sufficient to stamp the confessional statement of the appellant as involuntary is not acceptable, because there is nothing on the record to show that the appellant was detained in police custody after May 9, 1972, by the police merely for extorting confession from him, and as the appellant himself on having questioned by Dinesh Chandra, Sub-Divisional Magistrate, Bhim, clearly admitted that he was treated well by the police during the period he remained in police custody. The questions in this regard put to the appellant and the answers given by him in the course of the preliminary examination as recorded by the Magistrate may be set out below:

Q. No. 2. For how much time you remained in police custody?

A. Upto day before yesterday I was in police custody. From ay before yesterday I am in jail.

Q. No. 3 How were you treated during that period? A I have been treated well by the police.

Q. No. 5 Were you subjected to physical torture or any fear by the police to make the confessional statement?

A. I was not put to any physical torture or fear.

Q. No. 6 Were you told by the police that if you confess your guilt, you would be released o. pardoned or would be benefited in any other manner?

A. I was not told so. No allurement was offered to me.

The above answers given by the appellant to the Sub-Divisional Magistrate in the course of the preliminary examination negatived the contention of the learned Counsel for the appellant that the confessional statement was traded by persistent questioning or maltreatment by the police.

7. The second ground on which the confessional statement made by the appellant assailed is that no sufficient time was given to the appellant for reflection by the Sub-Divisional Magistrate before recording confession. The above contention also is devoid of substance. The appellant was produced from judicial custody before the Sub-Divisional Magistrate, Bhim on April 22, 1972 a 10.30 a.m. The preliminary examination was commenced by the Sub Divisional Magistrate at 10.40 a.m. In the course of preliminary examination as many as eight questions were put to the appellant and the answers given by him to each question were recorded by the Sub-Divisional Magistrate Thereafter the appellant was given time for reflection upto 11.30 a.m. During this period he remained a the court under supervision of the court peon & no police officer was allowed any access to him. Then at 11.30 a.m. the Sub-Divisional Magistrate again explained to the appellant that he was not bound to make a confession and that he may give any statement which he likes to make voluntarily and if he made any confessional statement that may be used against him in evidence. There after he was again asked what he wanted to say & then the appellant made the confessional statement the relevant extract of which we have mentioned above after rendering it into English. Mr. Dinesh Chandra, Sub-Divisional Magistrate, Bhim who recorded the confessional statement of the appellant, has been examined by, the prosecution at the trial. He clearly stated in his deposition that after preliminary examination he gave time to the appellant for reflection and proceeded to record his confessional statement at 11.30 a.m. His evidence is not shaken at all in cross examination and we see no reason to disbelieve his evidence on this point What has been contended before us by Mr. Doongar Singh for the appellant is that the Sub-Divisional Magistrate should have normally given one day's time to he appellant for reflection after making the preliminary examination. In our opinion, no invariable rule as to the time to be given for reflection ran hi laid down. The length of time to be given for reflection vires with the circumstances of each case. In the instant case the Sub-Divisional Magistrate was satisfied that the appellant was completely out of police pressure or influence. Immediately preceding the recording of the confession the appellant was in judicial custody for two days since May 20, 1972 and during this period he was kept cut off all access to the police investigating the case to ensure that any fear or influence of the police was dispelled from his mind. As for the question regarding length of time to be allowed to an accused person for reflection before recording his confession, reference may be made to a recent authority of the Supreme Court Shankaria v. State Rajasthan AKIR 1978 SC 1248, wherein the following observations were made by their Lordships on the point in issue:

It will be seen that how much time for reflection should be allowed to an accused person before recording his confession, is a question which depends on the circumstances of each case. The object of giving such time for reflection to the accused, is to ensure that he is completely free from the police influence. If immediately before the recording of the confession, the accused was in judicial custody beyond the reach of the investigating police for some days, then such custody from its very nature, may itself be a factor dispelling fear or influence of the police from the mind of the accused. In such a case, it may not be necessary to send back the accused person for any prolonged period to jail or judicial back-up.

There is no doubt on the voluntary character of the confession. The reasons given by the appellant for resiling from his confessional statement appear to be palpably false, especially when he could not complain about the alleged futuring and police pressure at the earliest point of time. Consequently, we hold the confession to be voluntary.

8. The next question that it mains to be considered is whether the confession made by the appellant can be believed to be true and what weight should be given to this piece of evidence. Before dealing with this question we may observe that in law there is nothing to prevent the court from convicting an accused on his confession, though it has been resiled from at the trial, provided the confession is held to be voluntary and believed to be true, but, as a general rule of prurience the prosecution is required to adduce some independent evidence in corroboration of the confession. The nature and the amount of collaboration, however, depends on the circumstances of each case and no hard and fast rule can be laid down in this behalf. It is not essential that each and every circumstance mentioned in the confession must be substantiated by independent evidence because it that case conviction can be based on the corroborative evidence itself without having recourse to the confessional statement. In our opinion, if there is some evidence coming from some independent source which lends assurance to what is contained in the confessional statement, it will serve the purpose of corroboration Reference in this connection may be made to an authority of the Supreme Court reported as Subramania Gondan v. State of Madras : 1958CriLJ238 , wherein the following observations were made on the extent and the nature of the corroboration required before a retracted confession can be accepted or acted upon:

It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being In re Kesava Pillai ILR 53 Mad 160 : AIR 1929 Mad. 837 (B) that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands without any corroboration. But the view taken by this Court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of confession unless the same is corroborated one of the latest cases being Balbir Singh v. State of Punjab : 1957CriLJ481 (C), but it does not necessarily mean that each aid every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor it is essential that the corroboration must come from facts and circumstances discovered after the confession was made. It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession....

Hence, it has to be ascertained whether in the instant case there is some evidence in the nature of general corrorboation which tallies with what is contained in the confession. The appellant mentioned in his confessional statement Ex P. 15 that he regarded the deceased as his Guru for the last 10 or 12 years and the deceased also treated him as his disciple and allowed him to have access to his house. The appellant staled that during this period he developed illicit intimacy with the wife of the deceased. This fact finds corroboration from the evidence of Tila Singh PW 1. Tila Singh stated in his deposition that Ram Singh deceased treated the appellant as his disciple and gave him his agricultural land for cultivation and the villagers at large knew about the illicit relations between the appellant and the wife of the deceased Mst. Dhanni. The appellant further stated in his confession that the deceased once, turned his wife Mst. Dhanni out of his house and deprived her of her ornaments These facts find corroboration from the testimony of Tila Singh P.W. 1 who stated in his deposition that once Ram Singh, deceased, turned his wife out of his house and deprived her of all the ornaments. The appellant further stated in his confession that some poisonous element was given to the deceased but he vomitted it out and did not turn mad. This fact finds corroboration from the evidence of Bajrang Lal Sharma. Incharge of the Ayurvedic Aushdhalaya, Kachabwali, PW 7; & Tila Singh, PW I Bajranglal clearly deposed that on December 19, 1971, he went to the house of Ram Singh and saw the latter vomitting and having pain in his stomach. Bajrang Lal gave the deceased some medicine. On the next day the deceased came to the Ayurvedic Aushdhalaya for taking medicines. Tila Singh also testified to this fact in his deposition by stating that about two months prior to the occurrence he once visited the house of Ram Singh and found his condition serious as he was vomitting. He asked Ram Singh what he had eaten Thereupon, Ram Singh, deceased, disclosed to him that Mst. Dhanni had given him something in the food as a result of which he was vomitting The appellant further stated in his confessional statement that in the night when Ram Singh, deceased, was sleeping on a cot outside his house, be struck a blow on his head with a stone. Then he threw away the stone and dealt further blows on his left and right legs with an axe. This fact, so far as it relates to the head injury, is corroborated by the medical evidence. Dr Arun Kumar, PW 17, who performed the postmortem examination over the dead body of Ram Singh appeared in the witness box and stated that there was one transverse lacerated wound 2 1/2' x 1/2' x bone deep on the right forehead which was ante-mortem in nature and which could be caused if any stone suddenly fell from above, on the forehead and which was sufficient in the ordinary course of nature to cause the death of the deceased as it caused depressed comminuted fracture of right frontal lobe of brain.

9. Mr. Doongar Singh, learned Counsel for the appellant, vehemently contended before us that in view of the conflict between the medical testimony and confessional statement there was no justification for the acceptance of the confession. According to him, the medical examination revealed that the deceased had a punctured wound 3/4' x 1/8' x 3' on the anterior surface of the right thigh and an oblique abrasion 5' x 1/4' on anterior surface of left thigh besides a transverse lacerated wound on the right forehead, while the appellant stated having given two blows on the legs of the decayed with an axe. If the confessional statement was true, the Doctor would have found two incised wounds on the legs Mr. Doongar Singh further urged that the medical evidence negatived the infliction of punctured wound on anterior sin face of right thigh with an axe, because, according to the opinion of the Doctor, if an axe is used with its sharp side then it will cause an incised wound and not a punctured one. As for the head injury, the contention of Mr. Doogarsingh is that if the appellant had caused this injury with a stone, some blood must have been found on the stone as is evident from the opinion of Dr. Arun Kumar. The above contention has no force. The confessional statement of the appellant cannot be thrown away on account of the alleged discrepancies between the medical evidence and the confession Dr. Arun Kumar, PW 17, clearly staled in his cross-examination that if any stone suddenly fell from above then an injury of the type found on the right forehead of the deceased could be caused The appellant definitely stated in his confession that he inflicted a blow on the head of the deceased with a stone with intent to damage his eyes. Narayan Singh, P.W. 10, who inspected the place of occurrence on May 9, 1972, clearly stated in his deposition that a stone was lying near the cot of the deceased and so he took it into his possession vide memo of seizure Ex P 11 and packed and sealed it in the presence of Motbir Basti Mal, PW 3 Bastimal also testified to this fact by stating that the police had taken one stone into their possession which was packed and sealed before him. It is no doubt true that the stone so seized at the spot was not sent to the Chemical Examiner presumably because it was not inspected to have stains of blood on it but this much is established by the evidence of Narayan Singh PW 10 and Basti Mil, PW 3 that a stone was lying near the cot of the deceased at the time of the site inspection. It is not the evidence of Dr. Arun Kumar that the stone must have received blood stains on it if a blow had been inflicted with it on the forehead of the deceased. He merely stated in his cross-examination 'that if the deceased might have been inflicted a blow with the stone then blood may be found on the stone as well'. The stone with which the blow was struck might not have received stains of blood on it because it was immediately dropped on the ground by the appellant and the axe was used by him in causing further blows to the legs of the deceased Hence, the probative value of the confessional statement regarding the head injury, which proved fatal, is not affected by the alleged discrepancy. As regards the other two injuries, the opinion of the Doctor is that they could not be caused by an axe with us sharp side as the injury on the anterior surface of the right thigh was a punctured wound and the injury on the left thigh was an oblique abrasion. The oblique abrasion on the left thigh could possibly be caused by the axe with its reverse side as opined by the Doctor. It might be that in inflicting this injury on the dead body, the appellant might have used the axe with its reverse side, as the appellant stated in his confessional statement that he did not want to kill the deceased. Of course, there is contradiction between the confessional statement and the medical testimony regarding the punctured wound on the anterior surface of the right thigh but this contradiction is not fatal to the acceptance of the confession because the injury on the anterior surface of the left leg was not fatal in the opinion of the Doctor. Hence, we are of the view that there are no such glaring and irreconcilable contradictions between the confessional statement and the medical testimony as can be considered fatal to the acceptance of the confession.

10. The confessional statement of the appellant further finds corroboration from the recovery of a blood stained axe at his instance and in consequence of an information recorded under Section 27 of the Evidence Act. It is proved by the evidence of Shri Kameshwar Prasad, PW 13, that the appellant, while in police custody, gave him an information that he had kept one axe having wooden handle behind an earthen container, commonly used for storing grain, lying in his house and that he was prepared to get it recovered at his instance. The above information was recorded by Shri Kameshwar Prasad in a memo Ex P 17. This information, later on, led to the recovery of the axe from the place mentioned by the appellant. The axe with its handle was suspected to have stains of blood on it. So it was seized and properly sealed by Shri Kameshwar Pracad in the presence of Basti Mal Motbir, PW 3, who also has testified to she fact of recovery of an axe front the house of the appellant. There is no reason to disheveled the testimony of Shri Kameshwar Prasad, PW 13 and Basti Mal, PW 3, especially when if has not been shaken in cross examination at all. The axe with its wooden handle was sent to the office of the Superintendent of Police, Udaipur, through Dildar Khan, PW 11 Prom the office of the Superintendent of Police it was sent to the Chemical Examiner, Jaipur, by Hanuman Singh, PW 15, through Anira, PW 16. All these witnesses have stated in their depositors that the axe reached the Chemical Examiner in a sealed condition with seal intact and unbroken The Chemical Examiner, upon analysis, found reddish stains on the wooden handle of the axe. He, therefore, sent scrapping from the axe to the Serologist who found them stained with human blood. Hence, the recovery of the blood stained axe lends assurance to the confessional statement of the appellant that he had an axe with himself which he used in causing injury to the leg of the deceased.

11. The prosecution has led evidence to prove motive on the part of the appellant to commit the crime of murder of Ram Singh. It has examined Balu Singh PW 5. Bheru Singh PW 8, and Shanker Lal PW 9 in proof of the alleged motive Balu Singh, PW 5 stated at the trial that about a year before October 27, 1972, on which date his statement was recorded by the trial court, the appellant approached him and asked him whether he knew the art of casting spell and thereby (killing a person by Mantras, i.e. 'Month') as he desired to see Ram Singh having been done to death. Balu Singh, thereupon, replied that he knew only to worship the Human deity and was not acquainted with the art of killing a person by 'Mooth'. Two or three days after the appellant again visited Balu Singh and told him that he would pay the latter a sum of Rs. 100/-, or Rs. 200/-, if he knew the art of killing a person by Mantras, i.e. 'Mooth'. On that day also he disclosed to Balu Singh that he wanted to see Ram Singh having been done to death. Thereupon, Balu Singh told him that he was ignorant of the art and would make a report to the police if the latter agsin asked him to do anything in the matter. Another witness in proof of the motive is PW 8 Bheru Singh His evidence is that about six months prior to October 30, 1972, on which date his statement was recorded at the trial, Kishan Singh appellant came to him and asked him to write a letter Ex P. 5 Bheru Singh wrote the letter Ex P5 at the instance of Kishan Singh and handed it over to him. It contained threats to the life of Ram Singh from the side of Bhils with whom the deceased had a dispute over agricultural land. Likewise, Shanker Lal PW 9 stated on oath that he wrote letter PW 6 containing threats to the life of Ram Singh at the instance of the appellant and handed over the letter to him. These letters were affixed on the conspicuous part of the house of the deceased, as is evident from the statement of Tila Singh, who claimed to have seen them affixed on the house of the deceased and to have read their contents. It is further proved by the evidence of Tila Singh that Ram Singh showed these two, letters containing threats to his life to the villagers The Panchas of the village advised him to give these letters to the police There is further proof on the record that these two letters were handed over by the deceased to Sukh Lal, Police Literate Constable at police out-post, Bagar, about three or four months, prior to May 9, 1972 Sukh Lal stated on oath that after receiving the letters from the deceased, he called for the Bhils with whom the deceased had some dispute over land. Upon inquiry the Bhils told Sukh Lal in the presence of Ram Singh, deceased, that no dispute then existed between them and Ram Singh over the land. Sukh Lal further stated that when he came to know about the murder of Ram Singh, he handed over these letters Ex. P 5 and P 6 to the Station House Officer in the course of investigation. From the evidence of these witnesses it is evident that the appellant had a motive to kill the deceased and with that intention he got two letters written by PW 8 Bheru Singh & PW 9 Shanker Lal containing threats to his life and, later on, got them affixed en the outer part of the house of the deceased, presumably to shift the responsibility of murder on the Bhils with whom the deceased had in the past some quarrel over land.

12. Having considered all the evidence on the record, we have no hesitation in holding that no other person but the appellant was the perpetrator of the crime of murder and that his confessional statement was voluntary and true and corroborated in some essential particulars by independent evidence.

13. The result is that the appeal find by Kishan Singh appellant fails and is hereby dismissed. The appellant is already in Jail. He shall serve out the sentence awarded to him by the trail court.


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