Shyam Sunder Byas, J.
1. Since these two appeals are directed against one and the same judgment of the learned Additional Sessions Judge, Sirohi dated December 22, 1972, they were heard together and are decided by a common judgment. By the judgment aforesaid, the Sessions Judge convicted and sentenced the appellants as under:
--------------------------------------------------------------------------------S. No. Name of the accused Offence Sentence awardedUnder Section--------------------------------------------------------------------------------(1) Rehmat Khan 302, IPC Imprisonment for life; 404, IPC Three years rigorous imp-risonment with a fine of Rs. 200/-, in default of the payment of fine to further undergo six months RI;(2) Allahuddin 302, IPC Imprisonment for life;404, IPC Three years rigorous impri-sonment with a fine Rs. 200/- in default of the payment of fine to further undergo six months like imprisonment;(3) Dadu Khan 302, IPC Imprisonment for life;404, IPC Three years rigorous imp-risonment with a fine of Rs. 200/-, in default of the payment of fine to further undergo six months like imprisonment;(4) Kesar Khan 302, IPC Imprisonment for life; 404, IPC Three years rigorous imp-risonment with a fine of Rs. 200/-, in default of the payment of fine to further undergo six months rigorous imprisonment;(5) Durlabh Bhai 411, IPC Two years rigorous impri-alias Prof. sonment with a fine of Himalya Rs. 1000/- in default ofthe payment of fine to further undergo three months like imprisonment.--------------------------------------------------------------------------------
Sabstantive sentences were directed to run consecutively.
2. The accused persons have come-up in appeals to challenge their conviction and sentences.
3. At about 2.00 p.m. on April 30,1972, PW 7 Jasouri the then Forest Guard, Pali Circle appeared at Police Station, Sumerpur (district Pali) and reported that around 12.00 Hours on that day he found the dead-bodies of two males lying by the side of the road in village Palri. The Station House Officer recorded this information in the Rojnamcha of the Police Station. It is Ex. P. 3. He proceeded on the spot and found the dead-bodies of two males lying in a Johar situate near Sheoganj-Sirohi road. SHO Jawan Singh (PW 8) prepared the inquest reports Ex. P 5 and Ex. P 6 of the two dead-bodies. Both the dead-bodies had multiple wounds and the clothes they were wearing were stained with blood. The two deceased could not be identified. The bushirt of one of had tailor's label 'tailored by Pooransingh and Sons Naya Bazar, Ajmer.' Since the case appeared to be of murders, the Station Hous Officer drew-up report Ex.P. 2 and registered a case under Section 302, IPC. Investigation was taken-up. Blood stained soil from the place where the dead-bodies were lying, was seized and sealed. The post-mortem examination of the dead bodies was conducted on May 1, 1972 by PW 34 Dr. S.C. Jain the then Medical Officer Incharge Government Dispensary, Sumerpur. He noticed multiple injures on the body of the victims. In the opinion of Dr. Jain, the death of one had taken place due to shock as a result of external haemorrhage on account of multiple stab-wounds while the death of the other had taken place as a result of severe haemorrhage on account of multiple stab wounds and the rupture of right lung. The post-mortem examination reports prepared by him are Ex. P 49 and Ex. P 50. It transpired during investigation that the two dead-bodies were those of Avinash Dube and Akhilesh Dube sons of PW 16 Narain Dube and brothers of PW 37 Smt. Indra Dixit. Both the brothers used to run and operate an Ambassador car RRL 6411 as taxi at Ajmer. The registration of the car was in the name of PW 16 Narain Dube. This car was hired at Ajmer by two persons in the afternoon of April 28, 1972 for Ajmer to Beawar. Next day it was hired by four persons at Ajmer for Ajmer to Sirohi. The two deceased brothers Avinash Dube and Akhilesh Dube along with those four persons left Ajmer at about 6.00 pm on April 29, 1962 for Sirohi. Before leaving Ajmer, fuel was filled in the car at Anil Petrol Pump, Ajmer. For the Petrol pump, the deceased Avinash Dube had a talk on telephone with his sister PW 37 Smt. Indra Dixit. He informed her on telephone that he was taking the passengers in the car to Sirohi. Thereafter Avinash dube and Akhilesh Dube were not found alive. The car was also found missing and no where about of it could be traced. Smt. Indra Dixit (PW 37) idintified the clothes recovered from the dead bodies of the two victims to be those of her brothers Avinash Dube and Akhilesh Dube. However, the identity of the four culprits, who had hired the taxi from Ajmer to Sirohi, could not be established nor could the car be recovered. As a result the investigation was closed and final report reciting the fact that the perpetrators of the crime could not be traced out nor could their identity be established, was accordingly filed in the Court of the concerned Magistrate by the police.
4. In the intervening night between 13th and 14th March, 1976, five culprits hired a taxi car RJW 1134 at Beawar. Those five persons got the car stopped near Pali. They forcibly took-out the drivers from the car and took them in a field. Thereafter those five persons took away the car. The drivers of the taxi-car were threatened by those five culprits at the point of knives and daggers. A report of this occurrence was lodged in the same night at police Station, Gudda Endla. The police came in prompt action and information was sent through telephones to keep a watch on the roads. The taxi-car RJW 1134 detained at Abu Road by the police. Five persons including the appellants Rehmat Khan and Allahuddin were found in the car. They along with the remaining three were arrested. Taking the clue from the similarities in the two occurrences-first that took place with Avinash Dube and Akhilesh Dube and the second which took place in respect of taxi car RJW 1134 and the modus operandi adopted by the culprits in these two incidents, investigation closed in the earlier case (in respect of Avinash Dube and Akhilesh Dube) was re-opened and once again resumed by the police. Accused Rehmat Khan and Allahuddin were arrested in this case also. The remaining three culprits were also rounded-up. Accused Kesar khan was arrested on March 20, 1976 at village Peepli in the State of Gujarat at the instance of accused Dadu Khan, wrist watch (Article, 1) and its belt (Article 20) belonging to the deceased Avinash Dube and which he was wearing at the time of the commission of the crime, were recovered from PW 20 Sanda. In consequence Rampuri knife was recovered while in consequence of the information furnished by accused Dadu Khan one Kathiyawari dagger was recovered. In consequence of the information furnished by accused Rehmat Khan, one dagger motor car engine No. OEB 4241- which was of the victims' taxi car RRL 6411 and some other parts of the body were recovered. In the course of investigation, the three accused viz. Allahuddin Dadu Khan and Kesar Khan made confessions before the Judicial Magistrate Mr. J.P. Chhangani. The confession (Ex.P 31) of accused Allahuddin was recorded on March 18,1976, the confession (Ex.P 33) of accused Dadu Khan was recorded on April 1, 1976 and the confession (Ex. P. 35) of accused Kesar Khan was recorded on April 5, 1976 by Mr. Chhangani. In the test identification conducted by the Judicial Magistrate PW 32 Ghan Shyam identified the four appellants Rehmat Khan, Kesar Khan Dadu Khan and Allahuddin as the four culprits who had hired taxi car RRL 6411 at Ajmer in the evening of April 29,1972 for Ajmer to Sirohi. PW 17 Amar Singh identified the appellants Rehmat Khan and Allahuddin also as the persons who had hired the aforesaid Ambassador car-taxi on April 28, 1972 for Ajmer to Sirohi. The wrist watch (Article 1) and its belt (Article 20) were identified to be of the deceased victim Avinash Dube by his father Narain Dube (PW 16). Accused Durlabh Bhai alias Professor Himaliya was arrested as accused Rehmat Khan sold the engine of the stolen car and other parts to him and he had purchased them knowing them to be the stolen articles. On the completion of investigation, the police submitted a challan against the five appellants in the Court of Munsif & Judicial Magistrate, Bali, who in his turn committed the case for trial to the Court of Sessions. The case came for trial before the learned Additional Sessions Judge, Sirohi, who framed charges under Sections 302 and 404, IPC against the four accused Rehmat Khan, Kesar Khan Dadu Khan and Allahuddin and under Section 411, IPC against accused Durlabh Bhai alias Professor Himaliya. The accused persons denied the guilt, refuted the charges and demanded the trial. In support of its case, the prosecution examined forty one witnesses and filed some documents. In defence, the accused advanced no evidence. On the conclusion of the trial, the learned Additional Sessions Judge found the charges duly proved against the appellants. They were consequently convicted and sentenced as mentioned at the very out set. Aggrieved against their conviction and sentences, the appellants have taken these appeals.
5. We have heard M/s S.K. Mathur and B.S. Rajpurohit, learned counsel appearing for the appellants and Mr. G.M. Bhandari, the learned Public Prosecutor for the State. We have also gone through the case file carefully.
6. Admittedly, there is no eye witness speaking about the occurrence and the entire prosecution case against the appellants rests on circumstantial evidence. The circumstantial evidence adduced by the prosecution consists of the following sets:
(1) the judicial confessions of accused Kesar Khan, Dadu Khan and Allahuddin recorded under Section 164, Cr.PC;
(2) the recovery of wrist watch (Article 1) with belt (Article 20) at the instance of accused Dadu Khan;
(3) recovery of the engine of the stolen Ambassador car RRL 6411 and the other parts of the body of this car in consequence of the disclosure statement made by accused Rehmat Khan;
(4) identification of the accused persons in the test identification as the culprits who had hired Ambassador taxi-car RRL 6411 at Ajmer on April 28, 1972 and April 29, 1972 and
(5) recovery of knives and daggers in consequence of the information furnished by the accused persons.
7. The learned trial Judge found the evidence relating to the recovery of knives and daggers as furnishing no incriminating material against the appellants. The remaining four sets of evidence were taken as proved and sufficient for conviction by the learned Sessions Judge.
8. It was contended and contended vehemently by Mr. Mathur, learned counsel appearing for the appellants that the conviction was wholly improper and uncalled for, It was argued that the various sets of circumstances relied upon by the court below did not stand satisfactorily proved. It was further argued that even if the circumstances relied upon by the prosecution and the Court below are taken as proved, they were wholly insufficient to warrant the conviction of the appellants. The judicial confessions were not free from suspicion. They were not made voluntarily and were subsequently retracted. No corroboration of these retracted confessions from independent sources was available. As such, the conviction of the appellants mainly on the basis of retracted confessions, which remained uncorroborated, was not free from risk. It would be proper to take these contention ad seriatim.
9. It cannot be successfully gain said nor any attempt was made before us by the learned counsel for the appellants that the two deceased-victims Avinash and Akhilesh were the sons of PW 16 Dr. S.N. Dube. Dr. Dube owned a motor car RRL 6411 which was operated as a taxi-car by the deceased victims. This car was fitted with engine number OEH 2294 and its chasis number was III 17554. This car was hired by some miscreants in the evening of April 29, 1974 at Ajmer. This car left Ajmer in the evening of April 29, 1972 It moved on the road towards Beawar, Pali and Sirohi. The miscreants, who had hired the car, stopped it near Pali road (three miles away from Police Station, Sumerpur, in that night. The miscreants thereafter put Avinash and Akhilesh to death and disappeared with the car. The dead bodies lying at the place of occurrence were those of the two unfortunate brothers Avinash and Akhilesh. This part of the prosecution story has not been challenged before us and in our opinion rightly, by the learned counsel appearing for the appellants. The main contention of the learned counsel is that the appellants were not those four misceants who had hired the above car at Ajmer in the evening of April 29, 1972.
10. We shall now deal with the contentions raised on behalf of the appellants taking the evidence relating to the hiring of the car at Ajmer to start with.
11. The prosecution has examined seven witnesses viz., PW 14 S.S. Dixit, PW 16, S.N. Dube, PW 17 Amar Singh, PW 22 Sayeed Mohmmed Ahmed, PW 32 Ghan Shyam, PW 35 Shyam Sunder and PW 37 Smt. Indra Dixit. P.W. 16 S.N. Dube is the father and PW 37 Smt. Indra Dixit is the sister of the deceased-victims. PW 14 S.S. Dixit is the husband of Smt. Indra Dixit.
12. PW 14 S.S. Dixit simply stated that at sun-set he took his brother-in-law Akhilesh on his scooter and left him at the railway-level-crossing near Anil Petrol Pump. From there, Akhilesh went alone toward the petrol pump and boarded car RRL 6411, which was standing there. The witness further stated that from railay-level-crossing, he returned to his house. His testimony does not show that the four appellants were there in the car or near about it. PW 16 S.N. Dube deposed that in the morning of April 29, 1972, his son Avinash had informed him that a party wanted to hire the car to go towards Agra and that the party would inform him on the telephone. Avinash asked his father that in case there was message on telephone, he may be informed accordingly. At about 3 00 or 4.00 p.m. on the same day, there was a call of telephone and he attended it. The man speaking from the other side of the telephone told him to inform 'Dube Sahib' (meaning thereby Avinash) to bring the car at Dargah at about 5.30 p.m. on that day. The witness further stated that he conveyed this information to his son Avinash. Avinash left the house with the car at about 6.30 p.m. on that day. Thereafter Avinash and Akhilesh did not return to the house and the car could not be traced. Even what he stated is taken as true, his testimony furnishes no incriminating material against the appellants. PW 37 Smt. Indra Dixit stated that in April, 1972, she was staying with her father Mr. S.N. Dube (PW 16). Her brother Avinash had taken the car to Beawar in the afternoon of April 28 1972 and returned from there at about 6.00 a.m. on April 29, 1972. Avinash told her that four persons were going to hire the car for a long travel and that they would inform him on telephone. At about 5.30 p.m. when she returned from the college, her father informed her that Avinash was taking the passengers. Avinash was present at the house. He left the house with the car at about 6.30 p.m. A little-while later, Avinash informed her on telephone that he was going towards Sirohi with four passengers. He also told her that he was contacting her on telephone from a petrol pump. She sent her brother Akhilesh with Avinash as she thought it proper not to send Avinash alone with unknown passengers. Unfortunatly, in her police statement Ex. P.8, which was recorded on May 3, 1972 i.e. three days after the occurrence, she did not state that the four passengers who had taken the car to Beawar on April 28, 1972 were hiring it again on April 29, 1972. Any way, we cannot gather from what she deposed that the four persons who had hired the car on April 29, 1972 for Sirohi side were the appellants. She had not seen the appellants nor came in their contact. Her testimony at the best simply shows that four miscreants hired the car to go towards Sirohi. It cannot be gathered from what she deposed that the appellants were those four miscreats who had hired the car. PW 35 Shyam Sunder is the owner of Anil Service Centre, and Petrol Pump, Ajmer. He deposed that at about 7.00 p.m. on April 29, 1972, Avinash brought Ambassador car RRL 6411 at his petrol pump & filled fuel in it. Avinash told him that the four passengers who had hired the car on the previous day were hiring it again for Sirohi and that he should take his younger brother with him. The witness stated further that Avinash contacted his father on telephone from his petrol pump and called his brother Akhilesh. The witness also stated that Avinash had also filled the fuel in the car on April 28, 1972 when he took it to Beawar. The witness stated that on April 29, 1972 when the fuel was being filled in the car, three or four persons were sitting in it, but he could not identify them nor could recollect who they were. Unfortunately, in his police statement Ex. P 6 recorded on May 5, 1972 (1972) i.e. within five days of the occurrence, be did not state what he stated later on during trial. He did not state in Ex.P 6 that the four passengers who had hired the car on April 29, 1972 were the same persons who had hired it on the preceding day. Apart from that, the witness does not claim to have seen those persons who were sitting in the car when fuel was being filled in it at his petrol pump at about 7.00 p.m. on April 29, 1972. The testimony of this witness at the most shows that Avinash came to his petrol pump at about 7.00 p.m. on April 29, 1972, filled the fuel in it and told his father on telephone to send his younger brother Akhilesh. These facts are not in dispute.
13. PW 22 Sayeed Mohammed Ahmed is the Khadim of Dargah Sarrif. He deposed that in the summer six or seven years ago (his statement was recorded on August 28, 1978), the four accused (leaving out accused Durlabh Bhai) came to his building situate near Dargah Sarrif and stayed there for two nights and three days. They paid him the charges. In cross-examination, he could not recollect the date, month or the year when the four accused persons stayed in his building. He was not called-upon to participate in the test-identification conducted during the investigation. No convincing reason could be subscribed before us as to why this witness was not called-upon to participate in the test identification. He admitted in his cross-examination that the accused persons were not known to him before they stayed in his building. He further admitted that he had seen the accused persons for the first time in the Court after their stay in his building. His statement was recorded in August, 1978 whereas the occurrence took place in April, 1972. It is very difficult for a witness to indentify the culprits after the lapse of six years. It is legitimate to infer that the memory fades and cannot remain alive for six years for a casual witness. Apart from that, a mere ipso dixit identification for the first time in the Court during trial does not furnish dependable evidence. It is very easy for any witness to point out any accused in the Court during trial. It is only an earlier identification by that witness which can serve as a guarantee for the truth of the statement made by him in the Court. In a case where no test identification parade is held and the witness for the first time identifies the accused in the Court, such an identification by the witness for the first time in the Court without being tested by a prior test identification parade is almost worthless. As stated earlier, no explanation is forthcoming from the prosecution side as to why this witness was not called upon to participate in the test identification parade conducted during investigation. This infirmity on the part of the Investigating Agency cannot be lightly brushed aside. The testimony of this witness Sayeed Mohammed Ahmed (PW 22), thus, inspires no confidence and it is difficult to accept his testimony at the face value that the appellants had stayed in his building in the year 1972. The learned Sessions Judge was not justified in concluding that the culprits had stayed in the building of this witness merely on the strength of what he deposed without any corroboration.
14. PW 17 Amar Singh is a broker and deals in taxi-hiring business. He deposed that at about 6-00 P.M. on April 28, 1972, accused Rehmat Khan and Dadu Khan met him out-side railway station, Ajmer. They were in search of a taxi. Two more persons were with them. The witness stated that he approached the deceased-victim Avinash and arranged his taxi-car RRL 6411 for the accused persons. The accused took the car to Beawar in that night and returned to Ajmer in the same night. In the test identification conducted on April 3, 1976 in the District Jail, Pali by the Judicial Magistrate Mr. J.P Chhangani, he identified accused Rehmat Khan and Allahuddin. Accused Keshar Khan was arrested on March 29, 1976 vide arrest memo Ex. P 16; accused Dadu Khan was arrested on March 21, 1976 vide arrest memo Ex. P 17; accused Allahuddin was arrested on March 14, 1976 vide vide arrest Ex. P 22 and accused Rehmat Khan was arrested on March 14, 1976 vide arrest memo Ex. P 19. PW 17 Amar Singh, in his cross-examination, very clearly admitted that accused Allahuddin had deep and conspicuous marks of small-box on his face. PW 32 Ghan Shyam, who also participated in the test identification parade conducted on April 3, 1976, admitted in his cross-examination that accused Allahuddin and Dadu Khan bad prominent marks of small-pox on their faces. PW 32 Ghan Shyam further admitted that in the test identification parade conducted on April 3, 1976, none of the persons who were mixed with the accused persons in the test identification parade had marks of small-pox. PW 17 Amar Singh, in his police statement Ex. D 3, did not state that any of the persons who hired the taxi on April 28, 1972 had any marks or scars of small-pox on his face. The memo of the test identification Ex. P 24 also does not show that any of the persons mixed with the accused persons had any marks of small-pox on his face. Now, if the accused persons have conspicuous, perceptible and' prominent marks on their faces, it is necessary that some persons having such marks on their faces should be mixed-up with them in the test identification parade to eliminate any sort of objection and criticism. The holding or conducting of a test identification parade is a solemn act which should be discharged faithfully, honestly and with a sense of responsibility. It should not be carried out in a routine or mechanical manner. In the instant case, as admitted by PW 32 Ghan Shyam, no person having small-pox marks on his face was mixed-up with the accused persons in the test identification parade conducted on April 3, 1976. Ex. P 24 also does not show that the Magistrate who conducted the test identification parade had taken any precaution to mix-up such persons who had small-pox marks on their faces in that parade. The omission on the part of the learned Magistrate very much detracts from the evidentiary value of the test identification parade. The matter does not end here. The learned Magistrate, who conducted the test idetification parade even did not mention in identification proceeding Ex.P 24 that accused Allahuddin and Dadukhan have marks of small-pox on their faces. For this very reason, it has not been mentioned in Ex. P 24 that persons having small-pox marks on their faces were mixed-up with the accused in their test identification parade. We are, unable to attach any evidentiary value to the test identification parade conducted on April 3, 1976 and the memo of identification Ex. P 24. Thus, the testimony of PW 17 Amar Singh cannot be accepted at its face value and no reliance can be placed on its basis that he had correctly identified accused Allahuddin and Rehmatkhan. The identification parade is open to grave criticism. The way in which it was carried out does not inspire confidence.
15. PW 32 Ghan Shyam is also a broker in the taxi-hiring business. He deposed that at about 6. 30 P. M. on April 29, 1972, accused Allahuddin and Dadu Khan met him near Dargah Sarrif, Ajmer. The deceased Avinash was also there with his taxi car RRL 6411. Two more persons came out of Dargah Sarrif. All those four persons (who are the appellants Rehmat Khan, Kesar Khan, Dadu Khan and Allahuddin) boarded that car. Avinash told him that he was going towards Sirohi. The car started. Thereafter he did not see Avinash and his car. In the test identification parade conducted on April 3, 1976, he had correctly identified all the aforesaid four appellants. It was argued and argued rightly by Mr. Mathur that this witness is a shameless Her, having no scruples and regard for truth. In his police statement Ex.D 5 recorded on May 24, 1972 i.e. 25 days after the occurrence, he merely stated that at about 7.00 P.M. on April 28, 1972, he met Avinash at taxi-stand, Ajmer. Avinash was standing with his taxi-car RRL 6411. Four persons were standing near his car. Avinash told him that he was taking those four passengers to Beawar. Avinash also told him that the four passengers did not appear to be gentlemen They appeared to be ruffians. He advised him that if the passengers were not good persons he should not go with them. The witness had given good-bye to his statement Ex.D 5 and introduced altogether a new story of the hiring of the car by the accused persons on April 29, 1972. In his statement Ex. D5 recorded under Section 161, Cr. P.C. during investigation, he did not state a single word about the hiring of the car by the accused persons in the evening of April 29, 1972. In. Ex. D. 5, he stated that he met Avinash at taxi-stand, but during trial he stated that he met him out-side Dargah Sarrif. He was pointedly cross-examined with reference to the portions A to B, C to D and E to F in Ex D5. He disowned the whole statement Ex.D 5 and deposed that he had not stated any fact contained in Ex.D 5. What he stated about the affair having taken place in the afternoon of April 29, 1972 is conspicuously absent in Fx. D 5. He has, thus, introduced altogether a new story for first time in the Court about the accused-persons' hiring the car of the deceased Avinash in the evening of April 29, 1972. The position is like this that what he stated in Ex. D5 before the police just after the occurrence has not been stated by him in he Court and what he stated in the Court during trial after six years of the ocurrence was not stated by him before the police in his statement Ex. D 5. Tohe witness, thus, stands discredited by his two contradictory statements one made before the police (Ex. D5) and the other made during trial, we have no hesitation to state that he is a thoroughly discredited witness and his testimony inspires no confidence. As disscused earlier, the test identification parade was not conducted in a faithful and honest manner. In his police statement Ex.D 5 he did not state the prominent identification marks of any of the accsed persons though two of them, according to him, have conspicuous and prominent marks of small-pox on their faces. It is also very difficult for a witness to precisely re-collect as to who had met him six years ago whom he had seen casually for a few seconds. The human memory fades by the lapse of time. The testimony of Ghanshyam (PW 32) is neither convincing nor appears to be true. Prudence requires that the testimony of such a witness should be discarded in toto.
16. The learned Public Prosecutor strived hard before us and contended that the testimony of PW 17 Amar Singh and PW 32 Ghan Shyam should be read together. When their testimonies are read together, it can be safely inferred that the four accused, referred to above, had hired taxi-car RRL 6411. We have already discussed that the testimonies of PW 17 Amar Singh and PW 32 Ghan Shyam inspire no confidence and both belong to the discredited category of the witnesses. Once discredited witness cannot corroborate the other like witness.
17. The prosecution has, thus, failed to establish that the accused Allahuddin, Rehmat Khan, Dadu Khan and Kesar Khan had hired taxi-car RRL 6411 operated by the deceased-victim Avinash or that they had taken it from Ajmer towards Sirohi. When this part of the prosecution story does not stand established, much of the prosecution, case crumbles down.
18. The recovery of wiist-watch (Article 1) and its belt (Article 20) may next be taken up. The prosecution case is that accused Dadu Khan was arrested on March 21, 1976 by the Investigating Officer Hanuman Singh (PW 38) vide arrest memo Ex. D 17. It is alleged that on March 26, 1976, accused Dadu Khan took the other Investigating Officer Kansingh (PW 41) at the house of Sanda (PW 20) in village Ranagarh (Gujarat). There, at the instance of the accused Dadu Khan, Sanda (PW 20) produced wrist watch (Article 1) and its belt (Article 20) before the police. Both these articles were seized and sealed, vide seizure memo Ex. P 1). Now, no statement of the accused Dadu Khan under Section 27 of the Evidence Act was recorded by the Investigating Officer to the effect that accused Dadu Khan had furnished information to him that he had delivered or sold the above two articles to PW 20 Sanda. As such, what is admissible in evidence is the conduct of accused Dadu Khan in pointing out the house of PW 20 Sanda. What accused Dadu Khan stated at the time of the recovery of the wrist watch and its belt from Sanda (PW 20) is not admissible in evidence. Unfortunately, PW 20 Sanda lent no support to the prosecution. He did not state that wrist watch (Article 1) was purchased by him from one Mohammed Bhai for a sum of Rs. 100/- and that belt (Article 20) was purchased by him from open market at the instance of the police. En these circumstances, the accused conduct in pointing out the house of PW 20 Sanda furnishes no valuable link in the chain of circumstantial evidence against the accused persons. The matter would have been otherwise if (PW 20) Sanda supported the prosecution case. Since Sanda(PW 20) lent no support to the prosecution, the mere recovery of wrist watch (Article 1) and its belt (Article 20) from Sanda furnishes no incriminating evidence against the accused persons. This recovery renders no help to the prosecution as against the appellants.
19. Coming to the contention of the recovery of engine OEH 02294 and Chasis No. III 171554, the prosecution case is that they were the parts of the stolen Ambassador car RRL 6411. According to the prosecution accused Rehmat Khan sold the car to accused Durlabh Bhai. Accused Durlabh Bhai sold the car to PW 27 Moasa Bhai. Moosa Bhai (PW 27), in his turn sold the aforesaid car to P.W 25 Jagat Ram. Jagatram PW 25 sold it to Shivnathsingh PW 6. Shivnathsingh PW 6 sold a part of the engine to PW 5 Jayantilal & retained the remaining parts with him. Engine OEH 02294 was recovered by the police during investigation from the possession of PW 5 Jayanti Lal on March 24, 1976, vide recovery memo Ex. P. 11 and the head part of this engine from the possession of Shivnath Singh (PW 6) on March 24, 1976, vide recovery memo Ex. P 12. The prosecution case further is that accused Rehmat Khan was arrested on March 14, 1976. He made the disclosure statement Ex. P 54 on March 19, 1976 before the Investigating Officer Kan Singh (PW 41). The disclosure statement is to the effect that he had sold the stolen ambassador car RRL 6411 to accused Durlabh Bhai alias Professor Himaliya. It was alleged that the engine and the various parts of the stolen car were, thus, recovered in consequence of the aforesaid information furnished by accused Rehmat Khan.
20. It was strenuously contended by Mr. Mathur that the disclosure statement contained in Ex. P. 54 alleged to have been made by accused Rehmat Khan is not admissible in evidence under Section 27 of the Evidence Act for the simple reason that this disclosure statement has not led to any discovery of fact. The information furnished by accused Rehmat Khan Was that he had sold the stolen car to accused Durlabh Bhai. But the car or its parts were not recovered from accused Durlabh Bhai The engine and the other parts of the stolen car were, on the other hand, recovered from PW 5 Jayanti Lal and PW 6 Shivnath Singh, who had purchased it not from Durlabh Bhai but from Moosa Bhai and Jagat Ram We have examined the contention and find considerable force in it. Sections 25 and 26 of the Evidence Act lay down that no confession made by an accused before a police officer is admissible in evidence whether he is in custody or not. Section 27 of the Evidence Act provides an exception to Sections 25 and 26 of the Evidence Act. Section 27 is based on the doctrine of 'confirmation by subsequent facts.' Therefore, if an accused makes confession before a police officer and that confession leads to a discovery of a fact Shashi having a bearing on the commission of the crime the confession so made distinctive relating to the discovery of a fact is admissible in evidence. Section 27, thus, partially lifts the embargo put by Sections 25 and 26 of the Evidence Act on the reception of a confession of the accused. One of the essential conditions for the applicability of Section 27 of the Evidence Act is that information given by the accused must lead to the discovery of a fact which is the direct out come of such an information. If the information has been furnished by the accused but if it does not lead to the discovery of a fact, the information must be excluded from consideration. There must be a direct connection or link between the information and the fact discovered. Section 27 has no application and cannot be pressed into service for any purpose if the fact is discovered otherwise than on account of the information given by the accused. The information given to police by the accused cannot be used against him when it does not lead to any discovery.
21. We may notice a few authorities on the point. In Magan Lal Bagdi v. Emperor AIR 1934 Nag 31, the scope of Section 27 of the Evidence Act was examined & it was held that the correct interpretation of Section 27 of the Evidence Act is that the only statement which has got a direct bearing on the property is admissible in evidence. Any statement made by another accused with regard to the recovery of the stolen property has no direct bearing although it may have an indirect bearing in giving the police a fresh starting point for investigation, is not admissible in evidence. The reason is obvious. The discovery in such a case is not a natural consequence of the statement made by the accused other than the one who made a final statement. The discovery leads assurance to the correctness of the last statement and of not previous statement.
22. This view was accepted and followed by learned Single Judge of this Court in Gurnam Singh v. State 1972 RLW 530. We are in complete agreement with the view taken by the High Court of Nagpur and by a learned Single Judge of this Court in the above authorities.
23. In the instant case, the information furnished by accused Rehmat Khan in Ex. P 54 is that he had sold the stolen car to accused Durlabh Bhai. If the stolen car was recovered from the possession of the accused Durlabh Bhai, the information furnished by accused Rehmat Khan in Ex. P 54 was admissible in evidence. However, the car or its parts were not recovered from accused Durlabh Bhai. The car continued to change hands. It reached the hands of PW 27 Moosa Bhai, then PW 25 Jagat Ram and from him to PW 6 Shivnath Singh and PW 5 Jayanti Lal. The engine and the spare parts were recovered from the possession of PW 5 Jayanti Lal and PW 6 Shivnath Singh. It is, thus, manifest that the information furnished by accused Rehmat Khan, recorded in Ex. P 54, has not led to the discovery of a fact. The recovery of the car and its spare parts was not the direct outcome of this information.
24. There is again no material on record to show that accused Rehmat Khan sold the stolen car to co-accused Durlabh Bhai. There is, thus, considerable force in the contention of Mr. Mathur that the engine of the car and its other parts cannot be said to have been recovered in consequence of the information furnished by accused Rehmat Khan, recorded in Ex. P 54. Accused Rehmat Khan cannot be fastened with criminal liability on account of the recovery of engine and other parts of the car from PW 5 Jayantilal and PW 6 Shivnath Singh.
25. As regards accused Durlabh Bhai, the allegation is that he had sold it to PW 27 Moosa Bhai. But unfortunately, PW 27 Moosa Bhai has denied this fact that car RRL 6411 or the car having engine No. OEH 02294 and chasis No. III 171554 was sold to him by accused Durlabh Bhai. He did admit that accused Durlabh Bhai had sold a motor car to him for a sum of Rs. 5600/-. He stated that he did not notice the engine and chasis number of that car which was sold to him by accused Durlabh Bhai. The witness also stated that when accused Durlabh Bhai sold the car to him. Durlabh Bhai issued receipt Ex. P 41 to him. In receipt Ex.P 41 neither the engine number nor the chasis number of the car has been mentioned. As such, receipt Ex. P41 furnishes no inculpating material against accused Durlabh Bhai. It was alleged by the prosecution that accused Durlabh Bhai sold the car to Moosa Bhai (PW 27) in the presence of PW 28. Yusuf Bhai. However, PW 28 Yusuf Bhai turned hostile and lent no support to the prosecution.
26. Thus, the recovery of engine and other parts of the car renders no help to the prosecution and furnishes no incriminating evidence against accused Rehmat Khan and Durlabh Bhai.
27. The last contention which now survives for consideration is the judicial confessions made by accused Kesar Khan, Dadu Khan and Allahuddin.
28. The confessions were recorded by Judicial Magistrate Mr. Jhanwar Prakash Chhangani (PW 24). The confession of accused Allahuddin recorded on March 18. 1976 is Ex. P 31 of accused Dadu Khan recorded on April 1, 1976 is Ex. P. 33 and of accused Kesar khan recorded on April 5, 1976 is Ex. P 35. The learned Sessions Judge took these confessions as the main foundation for convicting them. These confessions were strenuously assailed before us on two grounds, namely (1) the statement Ex. P 35 of accused Kesar Khan and Ex. P 31 of Allahuddin have been wrongly treated as confessions and (2) they were not made voluntarily.
29. The first clinching question which arises for consideration is whether the statement Ex.P 31 and Ex. P 35 amount to the confessions. There is no statutory definition of the word 'confession'. However, there are judicial pronouncements of the Privy Council and the Supreme Court on the point. In Pakala Narain Swami's case AIR 1939 PC 47, the Privy Council considered as to what is confession and observed as under:
No statement that contains self-expulatory matter can amount to a confession if the exculpatory statement is of some falt which, if true, would negative the offence alleged, or at any rate substantiate all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not by itself a confession.
30. These observations were approved and followed by their Lordships of the Supreme Court in Pal Vindar Kaur v. State of Punjab : 1953CriLJ154 and Veera Ibrahim v. State of Maharashtra : 1976CriLJ860 . Admission made by the accused suggesting the inference that he had committed the crime or that he was a participant in the commission of the offence should not be taken to be a confession. The confession must either admit in terms the offence or at least substantially all the facts which go to make the offence. If the maker of the statement throws all the blaim on the fellow accused assigning to himself the role of an unwilling spectator, such a statement is not a confession and the furnishes no incriminating material against the maker or the fellow accused.
31. A confession whether judicial or extra judicial affords a very valuable link in the chain of circumstantial evidence. Deliberate and voluntary confession of guilt has been accepted as the most effectual proof in law and a conviction can be safely based thereon, even if such a confession has been retracted subsequently by its maker. If the confession has not been, extracted and has been made after reflection, it constitutes a formidable circumstance and at times sufficient to warrant the conviction of the maker. But before the conviction is based on the confession, the confession must successfully pass two tests, viz., (1) has been made voluntarily. In other words, it should be the out-come of free and willing mind, and (2) it is true. In the instant case, we have meticulously examined the statement Ex. P. 31 made by accused Allahuddin and statement Ex. P. 35 made by accused Kesar Khan. In our opinion, these statements do not amount to confessions. In Ex. P. 31, accused Allahuddin stated that he was in the company of the fellow accused persons, went with them to Ajmer and returned with them. On the return journey, he was feeling uneasy. Some tablet was given to him by the driver of the car. He thereafter felt giddy. His fellow accused Rehmat Khan, Dadu Khan and Kesar Khan took the driver and his brother out of the car and killed them. He has assigned no role to himself in the commission of the murder of the two unfortunate brothers. Accused Allahuddin has neither admitted in terms the offence or at any rate substantially all the facts which constitute the offence. His statement that he was in the company of the fellow accused does not amount to a confession that he was a participant in the commission of the murders.
32. Likewise, is the fate of statement Ex. P. 35 made by accused Kesar Khan. He also stated that he was in the company of the fellow accused Rehmat Khan, Allahuddin Dadu Khan. A car was hired at Ajmer. In the return journey, accused Allahuddin and Rehmat Khan took out the driver of the car and his brother to some place and returned after committing their murders. He has assigned no role to himself in the commission of the murders. According to him, he remained in the car and did not come out. For the reasons stated while dealing with the confession of accused Allahuddin statement recorded in Ex. P. 35 does not amount to a confession. Thus, Ex. P. 31 and Ex. P. 35 were wrongly treated as confessions by the learned Sessions Judge.
33. There is yet another reason to discard the statement Ex. P. 31 made by accused Allahuddin. A confession, before it is acted upon, should have been made voluntarily, that is to say, it should flow from a free and willing mind. When the confession was made by accused Allahuddin he was in judicial custody. Ex. P. 31 has been recorded in the proforma prescribed for recording the confession of an accused. Question No. 7 reads that the Magistrate recorded the confession should make it clear to the accused who is going to make a confession that after his statement is recorded, he would not be restored back or returned to the police. Since discoveries were to be made from this accused Allahuddin, the learned Magistrate omitted to put this question to him and inserted a note that since recoveries were to be made from him and he is to be returned to police custody, the question was not being put to him. In our opinion, when the accused has not been assured that he would not be given back to the police after his statement is recorded, the statement without this assurance loses its force and sanctity. If the accused is given back to police custody after his statement is recorded, such a confession loses its sanctity. The sword of Damocles is constantly hanging on an accused placed in such a situation. It may be mentioned that accused Allahuddin was, in fact, returned to police custody after his statement Ex. P. 31 was recorded. Now, if the accused knows that he is likely to be returned to police custody after making the statement, such a confessional statement is not entitled to any credit. The practice of sending the accused after his making the confession to the custody of police is highly improper and unjudicious. The confession recorded in such circumstances cannot be said to be outcome of a free and willing mind.
34. In Davendra Prasad v. State of Uttar Pradesh : 1978CriLJ1614 there was nothing on record to show that the Magistrate told the appellant that he would not be remanded to the police custody even if he did not confess his guilt. The confession was discarded on the ground that it was not made voluntarily because the accused was not assured that he would not be delivered to the police custody. Here in the instant case, the situation is still worse than it was before their Lordships of the Supreme Court. In the instant case, accused Allahuddin was not only not assured that he would not be delivered back to the police custody but in fact he was delivered to the police custody after bis statement Ex. P. 31 was recorded. Ex. P. 31, even if it amounts to a confession, should, therefore, be excluded from consideration.
35. The confessional statements Ex. 31 and Ex. 35 further cannot be taken into consideration under Section 30 of the Evidence Act against the fellow accused for two reasons (1) they do not amount to confessions and (2) the entire guilt of committing the murders has been thrown on the fellow accused-The makers have a assigned no role to themselves in the commission of the murders.
36. Coming to the confession Ex. P. 33 made by accused Dadukban, it was retracted by him during trial. In Ex.P 33, he stated that he and his fellow accused committed the murders of the driver of the car and his companion. Though it is not illegal to convict as accused on his retracted confession the rule of prudence is that it should not be made the foundation of a conviction unless corroborated in material particulars. The offence was committed in 1972 and the confession was made in 1976 i.e. nearly three years after the occurrence. It is not clear from Ex. P. 33 as to why the accused was going to make the confession. The Magistrate, who recorded the confession Ex. P 33 did not put a question to accused Dadu khan as to why he was going to make the confession. A very like situation arose in the case of Davendra Prasad (supra). Their Lordships, while dealing with confession recorded under Section 164, Cr. PC took into consideration the omission of the accused as to be put by the Magistrate to the accused as to why he was going to make the confession. In para 10 of the judgment it was observed:
Mr. R.P. Singh, who recorded the so called confessional statement of the appellant did not question him as to why he was making the confession.
37. This omission on the part of the Magistrate was taken as a ground to discard the confession.
38. Here in the instant case, also, PW 24. Mr. J.P. Chhangani did not put any question to accused Dadu Khan as to why he was going to make the confession. It is generally unusual that an accused would make a confession after four years of the occurrence. There is then no corroboration in material particulars to this confession. The rule of prudence therefore requires that conviction of the accused-appellant Dadu Khan and of the other appellants, solely on the basis of his confessional statement Ex. P 33, would not be free from risk.
39. To sum-up, the prosecution has, no doubt, proved that four persons went to Ajmer and hired Ambassador car-taxi number RRL 6411 to go towards Sirohi. The deceased victims Avinash and Akhilesh were there in the car. Those four miscreants put these unfortunate brothers to death and took away the car which they later on sold at Ahmedabad. But the prosecution has miserably failed to prove that those four miscreants were the appellants Rehmat Khan, Keshar Khan, Dadu Khan and Allahuddin. The prosecution has further failed to prove that accused Durlabh Bhai alias Professor Himaliya had purchased that stolen car. They are, therefore, entitled to acquittal.
40. We may add here that when a conviction is sought on the basis of circumstantial evidence, the various sets of circumstantial evidence must first be proved. Thereafter they should be read together and considered as a whole. They must lead to the conclusion that the accused facing the trial, in all probabilities, committed the offences. It is the cumulative effect of the various sets of circumstantial evidence which should be taken into consideration in assessing the guilt of the accused. The various sets of circumstantial evidence in the instant case do not lead to the conclusion that in all probabilities, the appellants were the perpetrators of the murders of the two unfortunate brothers. The element of doubt is constantly there and does not stand eliminated.
41. In the result, the appeals of accused Rehmat Khan, Dadu Khan, Allahuddin Kesar Khan and Durlabh Bhai alias Professor Himaliya are allowed. Their convictions and sentence for the offences they were convicted are set-aside and they are acquitted. Accused Durlabh Bhai is already on bail and need not surrender. His bail bonds shall stand cancelled. Accused Rehmat Khan Dadu Khan Allahuddin and Kesar Khan are undergoing sentences. They shall be immediately set-forth at liberty if not wanted in any other case.