1. This is an appeal against, an order of the Sessions Judge, Poonch, by which the appellant has been convicted under Sections 302 and 380 R.P.C. and sentenced to death and to two years rigorous imprisonment respectively for murdering two persons, Subhana and Rajba at Thana on the night intervening between be 14th arid 15th Phagan, 2006 and stealing their money and clothes. The case is also before us on a reference made by the Sessions Judge seeking confirmation of the death sentence under Section 374, Cr.P.C.
2. On the 15th of Phagan 2006 at 6-30 A.M. Sarnda, complainant, along with certain other persons went to the Police Chowki Thana and made an oral report that Subhana who had a baker's shop at Thana and Rajba, a labourer, both belonging to Kashmir Province, had been murdered. He stated that in the morning when he opened his shop he found that Rajba's dead body was lying on the street outside his shop. As he knew that Rajba used to pass his nights in the shop of Subhana, he went to Subhana's shop and there found Subhana's dead body lying in the shop. He,. therefore, requested that an immediate investigation of the case might be taken in hand. The case was registered at the Police Station, Rajouri, on 16th Phagan at 3 P.M. at the instance of the Police Chowki Thana. It is alleged that on the morning of 16th Phagan, 2006 suspicion against the appellant having been aroused, he was brought to the shop of Abdul Latif, P. W. 3, where on being questioned by Abdulla Joo, P. W. 7, he admitted that he had killed the two deceased persons with a view to obtain their money and thereupon he was taken to the Police Chowki. On the evening of 16th Phagan B. Dharam Mitter, Sub Inspector Rajouri, who had gone to Thana, on hearing from some one that a double murder had taken place at Thana seized the shirt, Ex. P. 1, and Shilvar' Ex. P. 2, which the appellant was then wearing as blood stains were alleged to have been detected on them. On the evening of 17th Phagan the appellant was arrested and on searching his person change amounting to Rs. 2/2/, one cigarette case containing two coins, a rupee and an eight anna piece and two notes of rupee one each etc. were found (Vide Ex. P.R.).
On 18th Phagan two recoveries were alleged to have been made by the Police at the instance of the appellant. At first the appellant is alleged to have taken the police to a dilapidated place near Samadh School where from under some stones the appellant is alleged to have brought out currency notes of the value of Rs. 95/- and a pen-knife (Ex. P. 7). Then the appellant is alleged to have taken the police a little further on and there from under stones he is alleged to have brought out a shirt, Ex. P. 11, Waistcoat, Ex. P. 12 and shilwar, Ex. P. 10, which are alleged to have belonged to Subhana deceased. On the same date a Loi, Ex. P. 3, belonging to the appellant was also seized, as it was alleged that the loi had also blood stains which the appellant had washed.
3. After preparing the necessary documents the police forwarded the two dead bodies to the Rajouri dispensary where post mortem examinations were held in the afternoon of 16th Phagan 2006 by Sub-Assistant Surgeon Ram Lal in the absence of the Medical Officer who was away on duty at Jammu. The following injuries were found on the dead body of Subhana: After describing the injuries the judgment proceeds: In the opinion of the doctor the deceased had died of haemorrhage and shock caused by the injuries inflicted on him. Injuries Nos. 3 and 4 were grievous and the rest simple. Injury No. 3 appeared to him to have been caused by some sharp weapon and the rest by a blunt weapon. On examination of the dead body of Rajba the following injuries were noticed by the doctor: (After describing the injuries the judgment proceeds:) Of these injuries Nos. 2, 3 & 9 were grievous. The other injuries were simple. Injuries 2 and 6 appeared to have been caused by some sharp weapon and the others by a blunt weapon. The doctor thought that these grievous injuries on the two dead bodies could be caused by the pen knife, Ex. P. 7. Both the deceased persons, according to the doctor, were well built and healthy before their death. Their ages were 55 and 45 years respectively. The appellant was said to be about 23 years of age. He was also examined by the doctor on 19th Phagan, 2006 and the following two injuries were found on his person:
1. An abrasion mark on the right foot at its inner aspect.
2. Swelling of the right ankle joint.
According to the doctor injury No. 2 was due to sprain and might have been caused by a fall. Duration of injuries 1 and 2, according to the doctor could be five and two days respectively.
4. The appellant was taken from Thana to the Police Station Rajouri on 19th Phagan and on 22nd Phagan. 2006 Shirt, Ex. P. 1 and Shilwar, Ex. P. 2, and the pen-knife, Ex. P. 7, were sent by Police Rajouri to the Chemical Examiner Jarnmu packed and sealed. According to the report of the Serologist, Government of India dated 17.4.1950 (Ex. P. X) no blood was detected on the knife while the shirt and trousers were stained with human blood.
5. On 22nd Phagan, 2006 the appellant was produced before the Tehsildar Magistrate First Class for recording his confession under Section 164, Criminal P.C. The Magistrate sent back the appellant to the judicial custody which also happens to be in the Police Station Rajouri and then recorded his confession on 23rd Phagan 2006. This is what the appellant has said in his confession before the Magistrate:
On 14th Phagan 2006 at about 2 P.M. I went to the shop of Subhana baker. I had my tea there. I gave him one rupee note in order to make payment for tea. He returned me annas thirteen and he kept my note with his own notes which he brought out from his inner pocket. While he was taking out his notes and putting them back I felt a great temptation and I made up my mind that I would kill the man during the night. With this end in view I went to sleep in Subhana's shop during the night. At about the mid-night I got up and with the knife I cut Rajba's throat. He made a noise. Subhana deceased got up. I then gave two or three cuts with the knife to Subhana in consequence of which he fell down. I cannot say where he got these cuts. In the meanwhile Rajba deceased tried to escape. He had hardly gone 8 or 10 paces from the shop when I pursued him with a piece of wood in my hand. I struck him with this wooden piece. He got a number of injuries on the f head in consequence of which he fell down and died instantaneously. I left the wooden piece there and caught hold of another piece. I re-entered the shop, Subhana was still breathing with difficulty. I gave two or three blows on his head with the piece of wood that I had with me with the result that he also died. I searched the clothes the deceased were wearing. I got Rs. 1/4/- change from Rajba and I took away notes from the shirt of Subhana. I kept with myself the change and two currency notes of He. 1/- each. I got another change of annas eight from a 'Daba'. In the meanwhile somebody shouted from outside. Leaving everything there I ran away. I went to the orchard near the Bazar in the town. I then came back to the shop of Subhana deceased. I took from there his waistcoat, shirt and Shilwar and all the money. I then went to the school in the town. There I put change of Rs. 1/4/- belonging to Rajba deceased and two currency notes of Re. 1/- each and annas eight belonging to Subhana in my pocket and all the remaining notes belonging to Subhana I concealed under stones along with the knife. Then I went about half a mile towards the village Azmatabad. There I concealed the clothes of Subhana under stones. I then went to the house of Ghaffar black-smith. My clothes were all blood stained. Ghaffar blacksmith asked if it was blood. I told him that I had fallen down on a corpse and thus my clothes had become stained with blood. There I washed my blood stained loi hut I did not wash the remaining clothes. On the following day I came to the town. There the people caught hold of me and asked me why my clothes had blood stains on them. I told them the story how I had killed the two deceased persons. They informed the Police and then I was taken to the Police Chowki. The recovery of notes, knife and clothes was made at my instance.
6. On 7th Baisakh 2007 in the statement before the Committing Magistrate the appellant in the main stuck to the statement made by him before Mr. Anand Sarup, Tehsildar Magistrate on 23rd Phagan, 2006. He admitted that he had killed Rajba and Subhana and that the recoveries had been made at his instance. He also admitted to have confessed his crime before Abdul Latif, Abdulla etc. prosecution witnesses. There are, however, some variations in detail. In this statement he has given the reason why he attacked Rajba first. He has explained that he wanted to kill him lest he should appear as a witness against him. In this statement he has further said that he only gave one cut with the knife to Subhana before he left the shop in pursuit of Rajba. He has further omitted to mention in this statement that somebody shouted from outside the shop that he ran away from the shop at that moment leaving everything there.
7. Before the Sessions Judge the appellant has pleaded not guilty and in his statement he has told the Sessions Judge that his statement before the Committing Magistrate dated 7th Baisakh 2007 & his confessional statement dated 23rd Phagan 200(5 before the Magistrate First class were not true and were the result of the police persuasion, coercion and violence. He has made it quite clear that he had no hand in the murder of the two deceased persons and that he did not steal anything from them. He has also denied that he aided the police in effecting recoveries. He has further stated that his confessional statement before the Magistrate First Class was the result of personal violence. The police had burnt his feet and given him beating and he made the statement before the Committing Magistrate, because the Sub Inspector had told him in the lock up that if he did not stick to the confession he would be shot.
8. We have heard the Learned counsel who appeared as amicus curiae and the learned Assistant Advocate General. We have also examined the record. The learned Sessions Judge has rightly admitted in the beginning of his judgment that there is no direct evidence in this case to connect the appellant with the crime. In fact the principal material against the appellant is his retracted confession, dated 23rd Phagan 2006, before the Magistrate 1st Class, Rajouri and the statement made by him before the Committing Magistrate which under Section 287, Criminal P.C. can be read as evidence. It is not illegal to found a conviction on a retracted confession provided it can be held to be voluntary and true. But the rule of prudence and caution which has been invariably followed by the Courts in this respect is that a retracted confession is not better than tainted evidence and it should not be accepted, unless it is corroborated by credible independent evidence. The learned Sessions Judge has taken the view that this retracted confession has been sufficiently corroborated by the following material on the record:
(1) The evidence of extra-judicial confession alleged to have been made before certain prosecution witnesses on the morning of 16th Phagan, 2006.
(2) Detection of human blood on the clothes of the appellant, Ex. P. 1 and Ex. P. 2.
(3) The recoveries effected at the instance of the appellant, vide Ex. P.C. and Ex. P.P.
(4) Evidence of Ahada in regard to the presence of the appellant in the shop of Subhana on the evening of 14th Phagan, 2006.
I will take these seriatim.
9. So far as the evidence relating to extra-judicial confession is concerned we have to consider the evidence of four prosecution witnesses, namely, Samda, P. W. 1, Abdul Latif, P. W. 3, Sana Ullah, P. W. 6 and Zabdulla Joo, P. W. 7, (After discussing of the evidence the judgment proceeds:) I have given the evidence of these three witnesses inextenso so far as this point is concerned simply to show that they are not unanimous in their version of the confessional statement made by the appellant before them. Even in ordinary circumstances extra judicial confessions are not entitled to weight because it is impossible to ascertain the exact words used by the accused in such cases. There is ample authority for this view. But in this case not only it is not possible to find out what exact words the appellant used in confessing his crime, but also there is definite conflict in the statements of the three witnesses in regard to the fact whether this crime was perpetrated by the appellant solely or he had any participator in the crime. Such an extra-judicial confession must, therefore, be altogether discarded. In any case it cannot be described as credible independent evidence which can be deemed sufficient for the purpose of corroborating a retracted confession. Further more, where is the corroboration? Far from giving details as to how this gruesome tragedy was enacted this evidence materially contradicts the retracted confession in so far as it shows that the crime was not committed by the appellant all alone. Indeed of strengthening the retracted confession it knocks the bottom out of the story as contained in the confessional statement under Section 164, Criminal P.C.
10. I would have attached great importance to the evidence of the Imperial Serologist in regard to the detection of blood stains on the trousers and the shirt which the appellant was wearing at the time when he was arrested, but I feel impressed by the argument advanced by the Learned counsel appearing as amicus curiae in this case that the delay in dispatching these articles to the Chemical Examiner and the absence of the evidence that these articles were sealed and dispatched in the presence of the appellant and respectable witnesses is fatal to the prosecution so far as this point is concerned. As has been indicated in paras. 2 and 4 above these articles were seized from the person of the appellant on the evening of 17th Phagan 2006 at Thana and they were packed, sealed and dispatched to the Chemical Examiner on 22nd Phagan, i.e. six days after they had remained in the possession of the Police. Where is the guarantee that these clothes were not tampered with during this long interval? In a similar case reported as - 1 J & K LR 37 (A)', the learned Chief Justice, the late Mr. Justice Rachhpal Singh observed as follows at page 42:
In a case like this what happens generally is that the police immediately in the presence of witnesses takes possession of the articles containing blood stains and at once seals them so that it is not open to the accused to come out with the defence that these blood stains might have seen placed there by the police. In the present case the door leaves were for several days in the custody of the police and it is possible that somebody connected with the prosecution might have placed these stains on them.
This observation is fully applicable to this case. The Learned counsel for the appellant has rightly drawn our attention to this glaring defect and I am afraid it would not be correct to exclude the possibility of the stains having been put subsequently on the clothes in this ease. As it is, these stains cannot furnish any corroboration of the retracted confession. Apart from it, the appellant had more than 24 hours to wash his clothes and remove the stains. It is not the prosecution story that the idea did not occur to him. On the other hand the story , for the prosecution is that the appellant had washed his loi, Ex. P. 3 during the interval. It is therefore strange that he should not have washed his shirt and trousers and wandered about with these stains on his clothes the next morning. Even on this score reasonable doubt regarding these stains having been found on the clothes on the 16th Phagan cannot be altogether eliminated.
11. So far as recoveries of notes and knife and clothes, vide Ex. P.O. and Ex. P.P. are concerned it is not understandable how the learned Sessions Judge has used them for the purpose of corroborating the retracted confession. These recoveries took place on 18th Phagan 2006 and the confessional statement was recorded on 23rd Phagan. How can an antecedent recovery be used to corroborate a confession? These recoveries cannot in any way be used to test the truth or otherwise of the confessional statement. At the utmost these recoveries can be taken as a part of the statement and cannot in any way add to its weight. These, recoveries cannot in any sense be termed as credible independent evidence. Further, what are these recoveries? Even on their merits, both the recoveries took place from almost open places not in any way in the exclusive possession of the appellant. Ex. P.O. relates to the recovery of knife and currency notes valuing Rs. 95/- and Ex, P.P. pertains to the recovery of waistcoat, shirt and shilwar alleged to be belonging to Subhana deceased. Notes are not identifiable, knife and the clothes are absolutely commonplace. The recovery of knife might have been significant if blood had been detected on it and if it had been packed, sealed and dispatched to the Chemical Examiner in the manner in which it ought to have been done. But as the report of the Imperial Serologist shows no blood was detected on it. These recoveries are, therefore, of little 'valuo and cannot be used to connect the appellant with the crime with which he has been charged. Besides, these recoveries might well have been halted, Why should the appellant have kept the notes under a stone in an open space find not put them in his own pocket. Again, if we take into consideration the statement alleged to have been mad by the appellant before the three prosecution witnesses as deposed by Sana Ullah, P. W, 6, that the articles stolen from the two deceased persons were taken away by Sain, the collaborator of the appellant in the crime, how can these recoveries then be taken to connect the appellant with the double murder. In these circumstances I think, the Sessions Judge was entirely wrong in relying upon these recoveries for the purpose of corroborating the retracted confession.
12. The learned Sessions Judge has placed great reliance on the evidence of Ahada, P. W. 8 who has stated that he saw the appellant at the shop of Subhana deceased on the night intervening between 14th and 15th Phagan, 2006. This statement no doubt is of great help to the prosecution. But the trouble is that Ahada had not come out with this statement before the morning of 16th Phagan although he must have known of the double murder on the morning of 15th Phagan 2006. (After discussion of evidence of this witness the judgment proceeds :)
13. Having shown that there is no independent evidence worth the name to corroborate . the retracted confession in its essential particulars let Us see whether the statement on its merits appears to be voluntary and true. So far as the voluntary nature of the statement is concerned the appellant has alleged before the Sessions Judge that it was the result of Police persuasion, coercion and violence, This allegation of the appellant does find some material to support it. We have been in para 3 above that Dr. Ram Lal, P. W. 2, had found two injury marks on the person of the appellant. The explanation given by the Assistant Advocate General is that injury No. 1 might have been caused while the appellant was murdering the deceased and that injury No. 2, as stated by Sub-Inspector Dharam Hitter, might have been the result of a fact when the appellant sought to run away from the police custody on the evening of 17th Phagan 2006. It is not possible to give any definite finding on the material placed before us. But these injuries do create certain amount of doubt as regards the voluntary nature of the confession, especially when it is taken into consideration that the appellant, though he was in the judicial lock up at the time when he made the statement dated 23rd Phagan 200(3, he cannot be said to have been removed entirely from the police influence in so far as the Judicial Lock-up is next door to the police lock-up and is situated in the Police Station itself. The idea that the confessional statement of an accused should be recorded while he is committed to the judicial custody is mainly to remove him from the police influence prior and subsequent to his making the confessional statement. This is what guarantees the voluntary nature of the statement. This point is fully covered by authority and does not need any argument to support, it. How far this purpose can be achieved if a indicial lock-up is contiguous to the police lock-up and is in the police station itself where the investigating officer himself presides appears to me to be exceedingly doubtful. Now let us see if it is possible to place implicit reliance on this statement.
I have been almost verbatim translation of the confession in are 5 above to which reference may be made now. We have given our careful consideration to this statement and we have come to the conclusion that the story could not have happened in the manner in which it has been stated by the appellant in his confessional statement. According to the appellant he was the sole perpetrator of this double murder. He had no one to help him in the crime. He admits that he inflicted the wound with the pen-knife Ex. P. 7 on the throat of flambe who made noise and Subhana woke up. He also admits that after he had inflicted wounds on Rajba he was in a position to run away from the shop and go into the street. Why did not both the deceased persons fall upon him? Why did they not make sufficient noise to attract the help of neighbours? Why did not the two well built men, one 55 years and the other 45 years old, offer resistance to the assailant? If Kajba did make noise and could go out why did not the neighbours come to their rescue? The only possible answer to these questions is that this double murder is not the result of what one man alone did. There certainly could not have been less than two or three men who had done this foul deed. Even the medical evidence lends strong support to this view. This is what Dr. Ram Lai has said in his cross-examination:
It is not possible for the accused singly to kill both the deceased persons at one and the same place and at about nearly the same time and this could be possible only if both the deceased at this time of injury were lying asleep or Under the influence of some drug.
There is no evidence that the deceased were under the influence of some drug. We have it in the confession of the appellant that they both woke up before they are done to death. It is pertinent to remark here that even the Sessions Judge does not consider the double murder to be the work of one man. This is the conclusion to which he has come:
Considering all the circumstances of the case it seems probable that besides the accused there may have been one or more persons who joined in the, commission of this offence. The accused had named one Sain of Behramgalla as the person who joined him in this crime but on Sain's being brought before the Police the accused stated that the offence was committed by him single handed. It may be that the accused was advised from the very outset not to implicate any other person in this crime and that it was for this reason that he did not implicate any other person who may have been concerned in this offence.
It is strange that despite this view the Sessions Judge should have held the confessional statement both true and voluntary. By these remarks he has himself undermined both these qualities of the statement. He does not consider it as complete truth in so far as he does not regard the double murder as the result of one man's doing and he does not believe in the voluntary nature of the statement in so far as he considers it to be the result of police persuasion. It would be wrong to base conviction on such a statement even if it were corroborated in certain particulars.
14. The Sessions Judge appears to have been largely influenced in basing his conviction on the retracted confession because, he has considered it of great significance that the appellant has stuck to the statement before the Committing Magistrate. In this matter he appears to have been influenced by certain remarks made by the Board of Judicial Advisers in - Criminal Appeal No. 2 of 1949, Thakur Dass v. State reported in 8 J & K LR 99 (B). A great significance has been attached in the judgment of the Board to the statement which the accused had made in that case before the Committing Magistrate. But a careful perusal of that judgment would snow that the prosecution story in that case had been proved to the hilt and even apart from what the accused had stated in that case before the Committing Magistrate there was an approver in that case and that approver had been corroborated in certain material particulars. There was even an independent eye witness. The case, therefore, is not fully applicable to the present one. But with all this I do take the view that the statement made by an accused person before the Committing Magistrate is certainly entitled to greater weight than a mere confessional statement. The statement made before the Committing Magistrate can be read as evidence under Section 287, Criminal P.C. But while this is so such a statement is also to stand or fall upon its own intrinsic merit. If the story disclosed by it can be accepted as true and worthy of reliance, it can be acted upon but not otherwise. It has been shown above that the story contained in this statement, which is more or less the same as given in the confessional statement, does not appeal to us to be true. Apart from it I feel that the statement made by an accused person before the Committing Magistrate is entitled to greater weight, because it is made by him after the prosecution evidence has been recorded against him & after he has been entirely removed from the police influence. In this case, however, the appellant continued to live in the judicial lock-up situate in the Police station at Rajouri even on the date on which his statement was recorded by the Committing Magistrate. Technically he was in the judicial custody but I have doubts if it can be said that he was entirely free from Police influence even at this stage. In the Board case referred to above the accused was in Jammu jail while he made the statement before the Committing Magistrate. Even then the Board did not lightly dismiss the suggestion of the accused in that case that he had made the statement before the Committing Magistrate as tutored by the police. They sought and found intrinsic evidence in the statement itself to show that it could not have been the result of police tutoring. This is what the Board said in the course of their judgment:
All that the appellant said at the conclusion of the trial was that he had not committed the offence and that the statement that he made before the Committing Magistrate was made at the instance of the Police, That this statement exonerates Ramchand only has been pointed out already. If the police had wanted to coach the appellant into making a false statement there is no reason why the case against Ramchand and Harisaran should have been weakened deliberately. The police therefore could not have coached the appellant in any way to make such a statement.
No such intrinsic evidence is found in the. statement made by the appellant before the Committing Magistrate in this case. It on the other hand, as found by the Sessions Judge himself, shows clear signs of external coaching in so far as the appellant has made him self the sole author of this diabolical crime. A reference to para 6 above would show that slight variations made by the appellant in his statement before the Committing Magistrate also bear an impress of outside tutoring. In egress and ingress form and into the shop, as stated in the confession, which might make this part of the story rather improbable, a reason is vouchsafed why he thought it necessary to do away with Rajba first. A statement suffering from such manifest defects cannot be treated as a statement of truth on which it would be justifiable to found a conviction.
15. In the result we accept this appeal and giving the appellant the benefit of doubt we quash his convictions and sentences and acquit him. He conviction with some other case.