Balwant Rai vs State

Khalid, C.J.—These two appeals are against the conviction and sentence of Balwant Rai who was tried alongwith his father for offence

punishable under section 302 read with section 34 R.P.C. In a short judgement pronounced on 26121983, we allowed the appeals and set aside

the conviction and sentence against him. Our reasoned Judgement follows:

Nand Lal and his two sons Balwant Rai and Karan Singh were accused of having committed five murders. According to the prosecution, there

was long standing enemity between Nand Lal on the one rand and Bua Ditta and Tarsem Lal on the other. There was an attempt to settle the

disputes between them and accordingly a meeting was convened on 2641975 at 7 pm. at the resident of Mela Ram in village Ram Garh. At this

meeting Tula Ram, Bua Ditta, Resal Chand, Kans Raj, Jhalla Ram and Balwant Rai participated. When the talks of compromise were going on,

Karan Singh came to the place and took Balwant Rai with him. After some time Karan Singh came again and asked Bua Ditta to accompany him

to the Haveli to see his father Bua Ditta left the meeting and went alongwith Karan Singh. After a short while Nand Lal came and asked Resal

Chand to accompany with him telling that Bua Ditta was calling him. Resal Chand leff the place with Nand Lal Bua Ditta and Resal Chand did not

thereafter come back On this Tula Ram sent Kans Raj to require about them. Kans Kaj also did not come back. Those present at the meeting

thereupon went to the Haveli of Nand Lal Then they saw the dead bodies of Master Bua Ditta and Resal Chand cut wounds on their neck lying

under the cots in a pool of blood. They proceede to the Police post they saw Nand Lal and Balwant Rai. On enquiry Nand Lal told them that he,

Balwant Rai and Karan Singh had Killed Bua Ditta, Reasal Chand, Lohari Ram, Sansar Chand and Kans Raj Balwant Rai admitted before them

that he and other accused had killed the abovementioned persons.

Tula Ram, Tej Ram, Vikal Chand, Hans Raj, Bishan Dass and Moti Ram, reported the matter to the police post. They produced Nand Lal and

Balwant Rai before the police. The report was made at 2030 hrs. At 2230 hrs. on the same day Sansar Chand S/o Ram Krishan had made a

report to the same police post to the effect that he, his father and Lohari Ram had seen Nand Lal and his son Karan Singh one Killometer from the

rut stand. Karan Singh had a rifle with him. He and Nand Lal threatned to settle the dispute between them then at d there Karan Singh Immediately

fired at Lohari Ram who fell on Sansar Chand, Sansar Chand Caught hold of Nand Lal when Karan Singh fired another round on. Lahori Ram

which hit him and he fell on the ground Though Ram Krishan pleaded with Karan Singh not to kill his father, Karan Singh threatned him with the

same fate whereupon Ram Krishan ran and hide himself under the bushes. He heared another fire shot and shriekes of his father. He immediately

ran to the police post to report the matter.

The police registered two cases, one on the report of the Ram Krishan and the other on the report of Tula Ram. A Third ease was also

registered in regard to the murder of Kans Raj. Crime No. 95 relates to the murder of Lahori Ram and Sansar Singh in which the accused are

Nand Lal and Karan Singh and Balwant Rai. Crime No. 97 relates to the murder of Kang Raj in which the accused are Nand Lal and Balwant

Rai. The Chief Judicial Magistrate Kathua, committed the accused to stand trial before the session court by his order dated 27121975. In FIR No.

95 of 1975 of Police Station Kathua. On the same day he passed another committal order in FIR No. 96 of 1975.

The prosecution case is that the Bua Ditta and Resal Chand were done to death with an axe Lahori Ram and Sansar Chand were gunned to

death. Balwant Rai is alleged to have made a disclosure statement on 2471975 regarding the axe which was subsequently recovered at his instance

from Nallah Hajwan. The police seized the cloth of the deceased persons and those of accused Balwant and Nand Lal. There were blood stains

on them. The axe and the cloth were sent to the chemical Examiner They were found stained with human blood Nand Lal is alleged to have made a

confessional statement before the Munsif Judicial Magistrate Hira Nagar in which be confessed his guilt and involved his sons Balwant Rai and

Karan Singh in the crime.

Nand Lal died during the pendency of the case. Karan Singh is absconding and proceedings under section 512 €r. P. C. were ordered

against him. The Ld. Session Judge had therefore, to deal only with Balwant Rai. He was convicted under Section 302 R.P.C. and sentenced to

death. These two appeals relate only to Balwant Rai.

The prosecution examined 15 witnesses. The defence examined two witnesses. There is no eye witness to the offence. The whole case depends

upon circumstantial evidence. The court below categorised the evidence into five heads, namely (i) Motive (ii) Circumstantial evidence (iii)

ExtraJudicial confession (iv) Confessional statement (v) Recovery of Darat. After considering the evidence under these heads, the Session judge

concluded that the cumulative effect of all ""the circumstances under these five heads unerringly pointed towards the guilt of the accused. We will

have to examine the entire evidence and test the correctness of the conclusions so arrived at by the Session Judge in the light of the serious criticism

mounted against there conclusions by the Ld counsel for the appellant and in the light of the law on the point. Before doing so, we will briefly set

out the salient features of the evidence tendered by the prosecution witnesses.

Note :Para 8 to 15 deal with evidence which are not reproduced.

The L. session judge, after discussing the evidence came to the conclusion that the prosecution had established strong motive on the part of the

accused for the commission of the offence. According to him from the evidence of the prosecution witnesses it is quite clear that there was a long

standing enemity between Nand Lal his children and the deceased. There was thus sufficient provecation the accused to involve a scheme to do

away with the deceased. The deceased persons closely related. They were present at the panchyat. The motive proved, according to the Ld

Session Judge gave clear indentification that the murder would have been committed by the accused.

Next he refers to the circumstantial evidence in the case. The court below first considered the evidence regarding the panchyat. From the fact

that there was admittedly a panchyat where Balwat Rai was present, the court below draw an inference of his participation in the crime. The court

below find that Pws 1, 2, 3, 4 & 5 have uniformaly spoken to the presence of Balwant Rai and have given an eye witness account of what

happend in the meeting. They uniformally spoke that Balwant Rai who was present at the meeting was taken out by Karan Singh at the behest of

his father Nand Lal. After some times Balwant Rai came back and took Bua Ditta alongwith him. Sometimes later, Nand Lal came called Resal

Chand and took him away. These two persons did not come back. Immediately thereafter those who had assembled at the panchyat, went out and

was the dead bodies of the two persons. They also found the dead bodies of Kans Raj later. From these circumstances the court below draws an

inference of the complicity of the appellant in the crime. The court below proceeds further and relies upon the statement made by Nand Lal to the

witness that they killed not three persons but five. They Took Nand Lal aid Balwant Rai alongwith them and also lodged report with the police

post, Nagri. This is the second circumstance relied upon by the court below for the inference that Balwant Rai also has a hand in the killing of the

deceased.

The strong charge levelled by the defence regarding the improvement in the version given by the prosecution witnesses about the coming back

of Balwant Rai after he went with his brother, did not impress the court below. After discussing the sequence of events at the panchyat and the

disappear of the two person who were called away, the court below thus observed thus:

They thought that Nand Lal, Karan Singh and Balwant Rai had killed them beacuse of old enemity and they started for reporting the matter to the

police post"".

The court also relies on the statement alleged te have been made by Balwant Rai that the five deceased had made their Jives miserable. Regarding

the defence attack about the difference in the FIR and in the evidence before the court about the second coming of Balwant Rai, the court below

observed thus:

In the FIR which has been repreduced above, it has been mentioned by them that Karan Singh accused again carne and took Bua Ditta alongwith

him. I think this is a minor contradiction between the statement of the prosecution witnesses and the FIR and it cannot be considered as important.''

This contradiction did not impress the court below beacuse according to it the witnesses found Nand Lal and Balwant Rai immediately thereafter

when they took to the police station.

The next item of the circumstantial evidence on which the court below places reliance is that the cloth of Nand Lal and Balwant Rai which were

seized by the police had blood stained on them. The chemical examiner has testified to the fact that there was blood on the clothes. The defence

case that the appellant cloths got blood stained while his body came into contact of his father's body when he grappled with his, father to dissuade

him going him to the police station also did not impress the court below. The evidence of the defence witnesses also did not inspire confidence in

the court below. According to it the case spoken by them is imaginary and not real the above items of circumstantial evidence persuaded the court

below further to conclude that they were sufficient to connect Balwant Rai, with the murders.

The next piece of evidence is the extra judicial confession alleged to have been made by the appellant. The statement attributed to father Nand

Lal is that he told the witnesses, that he had killed not only three but five persons when he was reprimanded by the witnesses that what he did was

wrong. The appellant is alleged to have said that the deceased had made their lives miserable. These extra judicial confessions found favour with

the court below for acceptance for affirming the conclusion arrived at by it. The court below then refers to the confessional statement made by

Nand Lal in detail. According to him, the confessional statement gets corrobration from the evidence of Tula Ram, Tej Ram Moti Ram, Bishan

Dass and Vakil Chand, Pws 1, 2, 3, 4 & 5 respectively. The confessional statement is further corroborated by the identification of the Darat by

Pw 5. An other piece of corroboration is supplied, according the court below, by the grocery shopkeeper Jagdish Raj, Pw 7, from whom the

accused are alleged to have purchased cigarettes on 26th at 930 pm. Ashok Kumar, Pw 6, is another shopkeeper from whom Nand Lal and the

appellant are alleged to have purchased Barfi. The evidence of these witnesses was used by the court below to corroborate the confessional

statement.

The confessional statement was subjected to serious criticism by the defence counsel in the court below. It was contended that Sh. B D.

Thakur the Judicial Magistrate, Hira Nagar, Pw 10, bad not complied with the mandatory requirements of law before taking the confessional

statement. The most important attack was that accused Nand Lal was not told before his statement was recorded that he would not be sent back

to the Police lock up. The court below notes this objection. It states that Pw 10 admitted that he did not mention in his statement that he had

assured the accused that he would not be sent to the police custody. However, it held that the statement recorded by the magistrate did not suffer

from any infirmity or illegality on this account because Nand Lal was sent back to the judicial lock op after he made the statement under section

164 Cr. P C. The court below thus relies upon the confessional statement as a piece of corroborative material affording a link in the chain of

circumstantial evidence discussed above.

The recovery of the Darat, the presence of blood on it and the evidence of the witnesses supporting its seizure and the recovery at the instance

of the appellant, were considered by the court below for the purpose of corroborating further the prosecution evidence in support of the guilt of the

accused. The general attack made by the defence counsel that all the prosecution witnesses were interested in that they were were related to the

deceased did not impress the court below to disblieve of discredit them. According to him the witnesses were related in one way or the other with

the accused also. After discussing the above evidence, the court below winds up the judgement entering conviction as follows ;

The above discussed facts and circumstance clearly reveal that Balwant Rai accused brought Darat from the house of Kartar Chand Pw on the

pretext of cutting wood and then inflicated blow with the same to Master Bua Ditta and Resal Chand killing there in Havali (cow Shed) and

afterwards when he alongwith his father were moving to proceed to police post, Kans Raj deceased who had been deputed to enquire about the

above mentioned deceased, met them. Balwant Rai accused inflicted blow with Darat killing him there and then. This fact connected Balwant Rai

accused with the commission of offence.

The conclusion so arrived at by the court below were subjected to serious attack by the learned counsel for the applicant before us. Before

discussing the contentions raised before us by the appellant's counsel, we feel it necessary to cut line the correct position of law regarding

circumstantial evidence, confessional statement, extra judicial confession etc, in a criminal care, to connect the accused who is alleged to have

committed the offence. The appellants counsel arrayed before us a catena of discussions for the position that urged before us, in support of his

contention that the conviction and sentence entered by the court below on inadmissible and illegal evidence.

It is necessary to bear in mind that the appellant before us is Balwant Rai. His father Nand Lal and brother Karan Singh were also involved in

the crime. The prosecution had, therefore, a duty to establish beyond reasonable doubt the complicity of Balwant Rai in the actual crime. The

prosecution has to establish that the various licks of circumstantial evidence placed before the court by it are consistent only with the guilt of the

accused: If all or any of the circumstances available in the evidence can be consistent with his innocence also. It becomes incumbent on the court to

examine each links with greater scrutiny.

Nand Lal is no longer before us as an accused Karan Singh is absconding. The complicity of Balwant Rai in the absence of the other accused

is sought to be established by the fact that he was present at the panchyat, that he was called by Karan Singh at one stage, that he went cut with

him on being accosted, that he again came back to the panchyat, that the two persons who went out with him and Karan Singh did not come back,

that he had taken the Dan i from Pw 5 Kartar Cnand and that it was recovered at his instance. In addition to this, there is the confessional

statement of Nand Lal involving him and his own alleged statement that the deceased had been giving them considerable harassment and that he

wanted to get rid of them We will presently examine these items of evidence to test whether the appellant's guilt has been established beyond

reasonable doubt.

The law is now well settled that a conviction can be sustained on circumstantial evidence alone if such evidence is consistent with the guilt of the

accused. The caution that the law had laid down regarding circumstantial evidence however, is that all the links in the chain of circumstantial

evidence must be consistent only with the guilt of the accused and not consistent with his innocence also. If the circumstances deducible from the

evidence can be explained to prove his innocence also court will lean in favour of his innocence than in favour of his guilt. Precedents 'in this behalf

are legion. Such case has to be decided on its facts. Precedent thus will help only to under stand the broad principles laid down in considering how

circumstantial evidence in a given case before the court has to be considered

26 As pointed out by the supreme court in AIR 1981 Sc. 765 it is not necessary to state the whole law governing the cases of circumstantial

evidence in a judgement, for, legal principles are not magic incantations and their importance lies more in their appreciation to be given to a set of

facts then in their recital in the judgment. We, therefore, refrain from reffering to the various authorities cited before us, since principles of law

governing circumstantial evidence have been well settled. Before a person can be convicted on the strength of circumstantial evidence, the

circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond

reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the

benefit of the hypothesis. If in a given case the motive and the opportunity to committ the crime have been satisfactorily established, then the court

will be justified in considering the proved circumstances on the record alongwith the explanation of the accused in entering a finding of guilty, if the

court can with certainty, exclude the reasonable possibility of any one else being the real culprit. If in a given case despite motive and opportunity

to committ the evidence being proved, the court feels that the reasonable possibility of some one else having been responsible for the offence,

cannot be completely ruled out then it would be the duty of the court to extend the benefits of the doubt that arises in its mind, to the accused. The

court must reach the finding of guilt after a proper and careful evaluation of circumstances in order to determine whether they are compatible with

any other reasonable hypothesis. All the finks in the chain of the circumstantial evidence must unerringly point towards the guilt of the accused. If

any link in the chain of circumstances, is missing, the court should be extremely guarded in accepting the circumstantial evidence to find the accused

guilty. Rule of prudence in which cases would be to err on the side of benefit of doubt and not. to hasten towards punishing the accused. These are

the broad outlines that are deducible from decided cases.

Before we proceed to discuss the evidence in the case, and the criticism levelled against the conclusions arrived by the learned session judge,

we would like to advert to a serious commission on the part of the Session Judge running through his judgement which has emblodened the

appellant's counsel to mount a scathing attack on them. The omission is the absence of adherence by the sessions Judge to the requirement of

section 342 Cr. P. C. in not putting to the accused the various incriminating material's emerging from prosecution evidence. The court below has

relied upon such incrimnating materials in support of its conclusions without getting any explanation from the appellants regarding them. The

Supreme Court has, time and again alerted courts to guard against such an omission, for denial of any opportunity to the accused to explain

adverse circumstances emanating from prosecution evidence would rendered the prosecution evidence to the extent tot only unreliable but even

inadmissable.

In AIR 1953 S.C. P. 468, the Supreme Court has observed.

We have a further comment to make. Both the sessions Judge and High Court have attached importance to the fact that both accused absconded,

but at no stage of the case have they been asked to explain this. We have stressed before the importance of putting to the accused each material

fact which is intended to be used against him and of affording him a chance of explaining it if he can We regret to find that this rule is so often

ignored.

In AIR 1954 S. C. page 15 also the S. C. has warned the use of circumstances appearing against the accused unless an opportunity was given to

him for explaining them in his statement under section 342 Cr. P. C. The again in AIR 1979 S. C. page 1566, the Supreme Court has observed:

Unfortunately, however, as this circumstances was not put to the accused in this statement under Sec. 342 the prosecution cannot be permitted to

rely on this statement in order to convict the appellant particularly after he had been acquitted by the trial court.

The learned counsel for the appellant made a general charge that the prosecution evidence wholly circumstantial in nature, wan not sufficient to

establish the guilt of the accused. According to him even the holding of the panchayat and the evidence surrounding it has to be very carefully

scrutinized and that in one vital aspect., that is where the appellant figures. According to him an attempt has been made by the prosecution to shape

the case to suit its end. Witnesses who spoke about the panchayat cannot inspire confidence. Their evidence regarding motive and the last seen

aspect have to be viewed with caution. Pw 1, Tula Ram, Pw 3 Moti Ram Pw. 4, 1984 Bishan Dass and Pw 5 Vakil Chand are the witnesses

examined to prove the convening of Panchayat. Out of these witnesses Bishan Dass and Vakil Chand were not questioned by the police, under

section 161 Cr. P. C. However, they were permitted to be examined at the trial. Pw 3 Jalla Ram did not support the case that he was present at

the panchayat. The panchayat was held at the house of Mala Ram. He was not examined The Panchayat related among others to the dispute

between Nand Lal and Karmo and Tarseem. They do not figure as prosecution witnesses. The general complaint was made by the appellants

counsel is that all the witnesses examined made a determined effort to improve upon the version given in the FIR. While in the FIR there was no

mention that the appellant had returned to the venue of Panchayat after Karan Sing had taken him with him. They spoke in one vioce at the trial

that Karan Singh came backgain to the Panchayat venue. The appellants counsel submits that this was deliberate attempt to supply evidence that

the appellant was with the deceased just before they were done to death. We do not reject this contention as wholly baseless. Though the court

below has dismissed this as a minor contradiction, we feel that it has considerable significance. We say this because we cannot with certainity

exclude this possibility of some other person or persons being the perpetrator of the crime. When we say this we have in mind the fact that Nand

Lal and Karan Singh also were charged alongwith the appellant for murder if, infact, the appellant did not come back, after he was called away by

Karan Singh, a reasonable doubt arises in the mind of the come as to whether the appellant had in fact, committed this crime. For the purpose of

this case, we hold on the evidence available that the appellant was present at the Panchayat. He was naturally interested in this resolution of the

disputes between his father and others. The appellant can be said to be last seen with the deceased only if there is unerring evidence of his coming

back to the panchayat again. And then leaving with the deceased persons, the second time. Viewed in this light the contradiction between the FIR

version and the trial court version assumed some importance. We feel persuaded to give the benefit doubt to the appellant on this aspect of the

case also for the reasons that there is some evidence in the case that he had tried to dissuade his father from committing the crime We are not,

therefore, inclined to dismiss this aspect of the case strenuously highlighted by the appellant's counsel as unworthy of acceptance. The uniform

evidence of the prosecution witnesses in this behalf has to be viewed with suspicion. We would call in aid for this conclusion of ours the fact that

the prosecution witnesses are in some way or the other, related to the deceased In addition to this way in passing, refer to the fact that Moti Ram

Pw 3 is on omnibus witness who speaks about the Panchayat, seizure of clothes, disclosure statement and recovery of the weapon of offence.

Thus conceding the presence of the appellant in the Panchayat we are not prepared to hold that the appellant came back to the Panchayat he was

called away by his brother Karan Singh.

29 The above discussion in some measure answers the last seen theory also implicating the appellant. The prosecution has examined one other

witness to prove the last seen theory. He is Jadish Raj Pw 7. The evidence is that on the fact ful night Nand Lal Karan Singh alongwith ""Kans Raj

had gone to his shop and had purchased a packet of lamp mark cigarettes and match box. Kans Raj was subsequently found dead at a place 25 ft

away. The lamp brand cigarettes and the match box were never seized by any one. This would have afford some corroboration for the last seen

aspect of the case. The evidence that the accused had gone to Jagdish Raj gets considerably weakned when we test his evidence against the

evidence Moti Ram, Pw 8. According to his evidence there was big hue and cry about the murder in the locality. Jagdish Raj should have known

about this. He, however, did not mention to any one the fact that the accused had gone to his shop with Kans Raj that nigbt. If, infact, that was the

truth he would have unburdened himself of this important tact to entire crowd when he karat about this ghastly murder. The attempt of the

prosecution to prove the complicity of the appellant by examining Jagdish and supplying a link to the circumstantial evidence cannot, therefore, be

taken as an unerring circumstance to find him guilty. The body of Kans Raj was searched and seizure memo was prepared. There is no mention

therein of the cigarettes and the match box. The appellant's counsel feebly submitted that while Jagdish Pw. 7, deposed that he was examined on

2741975 between 10 to 11 A. M. the investigation officer stated that he was questioned between 5 and 6 A. M. The attempt is made to show that

the statement of Jagdish was either fabricated or prepared in this way as to suit the investigating officer. The shop of Jagdish Raj was not shown in

the site plan also. That is more his evidence was not put to the appellant Under sec. 342 Cr. PC. Thus this link not only gets considerably weakned

but becomes inadmissible in evidence for the reason that the accused was not asked about it.

The next piece of evidence is the recovery of the weapon of the offence as per information given by the accused. The evidence in this case is

that this Darat was taken by the appellant from Pw. 5, Kartar Chand. Pw 5 indentified it in court. According to Pw. 17 Vidya Dhar the appellant

made the disclosure statement at 6 A. M. on 2741975 while Noor Hussain Pw. 19 puts it at 7A.M. and Moti Ram Pw. 8, between 8 and 9 A. M.

The appellant was not questioned about the weapon either at the police post or on the way. He is alleged to have made a voluntary statement.

Though the appellants counsel contended with force that the disclouser statement is a fabrication by the investagation Officer, we would as chew it

from consideration not on the discrepancies between the time when the disclouser statement was made or on minor contradiction between the

statement of witnesses but OH the important ground that this was mot put to the accused Under section 342 Cr. P. C. We do not think it

necessary in view of this serious lapse to discuss in details the prosecution evidence in this behalf.

31: Add to this, the appellant's counsel submits that there is no evidence to show that there was human blood on the weapon recovered. It was

recovered from water. The seizure memo was not signed by Kartar Cnand, Pw. 5, These are suspicious circumstances. But we can safely exclude

consideration of the disclouser statement and the recovery of the weapon for the good reason as stated above. That the disclouser statement was

net put to the accused. The subsequent recovery therefore, does not assumes any importance as a link in the circumstantial evidence to connect the

appellant with the crime. Even otherwise the recovery, even if it is true does not unerringly point towards the guilt of the accused for the

prosecution evidence is that the appellant to the Pw. 5 at the instance of his father to get the Darat. By this alone, it cannot be said that the

appellant had used this as a weapon of offence to commit the crime. This link in the circumstantial evidence also has therefore to be left out of

consideration.

Now we come to the confession alleged to have been made by Nand Lal U/s 164 Cr. P. C. This confession also was subjected to serious

criticism by the appellant's counsel. It is necessary to note that the confession it self cannot be used against the appellant as a confession made by

an accused. This at best can be used only as the confession of a coaccused if it implicates the appellant. We may in brief, however, refer to the

criticism against the confessional statement and its admissibility in the case. According to the appellant's counsel this confession was extracted from

Nand Lal after he was tortured. Nand Lal was arrested on 2641975. His statement was recorded on 851975. The delay by itself is a

circumstance, according to the appellant's counsel, to make the confessional statement suspect and to render it inadmissible. Nand Lal was

admitted in the hospital on 1051975. From there he was sent to Jammu Hospital for treatment on 1551975. There is evidence in this case to show

that he had a abcess on his scapula and three injuries on the wrist. The appellant's counsel submitted that the prosecution made a bid to explain

away these injuries by making Nand Lal to say that he attempted to commit suicide. There is no evidence in this case to show that Nand Lal was

examined by any doctor at the time he was arrested or that there was any body Mazabar prepared to see whether he had injuries on his body at

the time he was arrested. On 1051975 after he had given his confessional statement, he was sent to the hospital for treatment. The court is at a loss

to know in the absence of any unimpeachable evidence as to how. Nand Lal sustained these injuries, which according to the appellant's counsel,

therefore, according to as, not without justification contend that the confessional statement was not voluntary but one made after maker of the

statement was tortured.

The second attack against the admissibility of confessional statement is that the mandatory provision of law were not complied with by the

magistrate who took the statement to alert the maker of the statement that he was a free agent. One important information that should have been

given to the maker of the confessional statement to render him a free agent is to tell him that he would not be sent back to the police lockup. Pw.

10 S. D. Thakur admits that the records will not show that the Nand Lal was reassured that he would not be sent to the police lockup although

after the confessional statement, he was sent to the judicial lockup. The absence of his reassurance by the magistrate, according to the appellant's

counsel, renders the confessional statement upacceptable and unreliable. Reliance was placed for this proposition on the observation of Division

Bench of this court reported in 1976 KLJ 179 wherein one of us observed as follows :

Failure to put such question would show that the magistrate did not make a real endeavour to as certain the voluntary character of the confession

S. M. F. Ali C. J. agreed with Jaswant Singh. J that since the Magistrate did not question the accused about the custody from which he had been

brought and also since the Magistrate did not administer an assurance to the appellant that he would not be sent back to the police custody the

confessional statement could not be used against the appellant as there was not assurance that the statement had been made voluntary.

We hold that the confessional statement loses its credit worthiness and loses its acceptability for the failure on the part of the magistrate to reassure

its maker about this important aspect of his custody. In any case this confession cannot be used against the appellant to find him guilty.

Because of the legal infirmities that have tainted this confession statement made therein implicating the appellant cannot be used against him

what is more, it being ID the nature of a confession of a coaccused is no evidence under See 3 of the Evidence Act. The most that can be said

about the confession of a coaccused is that it can be called in aid for the court to reassure itself that its conclusion on the other evidence is correct.

As observed by the Supreme Court in AIR 1956 SC 56:

Confession of a coaccused are not evidence as defined in section 3, and no conviction can be found thereon but if there was other evidence on

which a conviction can be based that can be referred to as lending assurance of the conclusion and for fortifying it"".

In the absence of any other acceptable evidence to lend assurance to this confession, this has to be completely a schemed from consideration.

What is worst this has not been put to the appellant in his statement under section 342 Cr. P. C.

The next item of evidence on which reliance was placed by the court which has also come in serious criticism at the hands of the appellant's

counsel, is the extra Judicial confession alleged to have been made by the appellant. Before discussing the evidence on this aspect it is necessary to

bear in mind that we do not have in this case, a uniform version of an extra judicial confession, as spoken to as by the appellant. The material on

record only go to show that both Nand Lal and appellant made confession to witnesses that they have committed the murder We will make our

comments upon this aspect of the case after referring in brief to the evidence touching on this aspect. The witnesses who spoke about the extra

judicial confession are Pw. 1 Tula Ram Pw. 4 Tej Ram, Pw Moti Ram, Pw: 17 Bishan Dass, Pw. 5 Vakil Chand. The evidence of these witnesses

regarding the extra judicial confession is not consistent. Pw. Tula Ram says that when he told the accused Nand Lal and Balwant Rai that they had

committed great atrocity, both of them replied that it was not three whom they had killed but five Pw. 4 Tej Ram says that when Nand Lal was

told that he did a bad thing by killing Rasal Chand and Bua Ditta and Kans Raj he said that he and Karan Singh had killed Sansar Chand and

Lohari Ram and added that remaining persons were killed by him and Balwant Rai. Pw. 8. Moti Ram in this evidence says that when he told Nand

Lal that he did not act properly and that he killed Rasal Chand Kans Raj and Bua Ditta, he replied, no, ""five have been killed''. He said, in addition

to three persons Lahori and Sansar Chand also, Bishan Dass Pw. 7 also deposed similarly but he states that the remaining were finished by Nand

Lal, Karan and Balwant. Pw. 5 Vakil Chand would say that Nand Lal replied that he had finished five persons. The above statement was not

taken as a clear extra judicial confession made by the appellant confessing his guilt before there witnesses. No witness has stated that Balwant Rai

had confessed of his having committed the crime, to these witnesses. The evidence in the case applied by the above witnesses is that Nand Lal

stated that they had jointly committed murder.

The extra judicial confession is a weak piece of evidence. The court can accept extra judicial confession if the evidence about the confession is

beyond the suspicions and the evidence given the actual words spoken by the accused. We have seen from the discussion above that the witnesses

have given the different versions of the confessional statements made by the Nand Lal to them. A confession that A&B jointly killed C, made by A

cannot, in law, be characterised as an extra judicial confession made by B. The appellant, on the admissions of the witnesses, has thus not made

any extra judicial confession. The alleged extra judicial confession made by Nand Lal cannot in law be use to implicate the appellant. What is

more, this piece of evidence also suffer from the common infirmity present in this case in that the extra judicial confession alleged to have been

made by Nand Lal has not been put to the appellant in his 342 statement. This weak type of evidence has thus been considerably doubtly

weakned by this fatal defect. This evidence also has to be a schewed from consideration.

The recover of the blood stained clothes from Nand Lal and the appellant is another circumstance used by the court below to implicate the

appellant in the crime. We are here concerned only with the Blood stained clothes of the appellant. The evidence in this behalf has been subjected

to serious adverse criticism by the appellant's counsel. The seizure of the clothes does not find a place either in the FIR or in the daily diary. Exhibit

B68 and B69 are the themat and shirt of the appellant. It is true that there is some evidence that these clothes were blood stained. The appellants

counsel in the course of his adverse criticism of this part of the evidence also state that the Sereologist who was summoned was given up by the

public prosecutor and this has worked to the detriment of the accused. He first stated that the Sereologist was summoned as per this request. On

further scrutiny it was found that now application was made by him to summon the Sereologist and no request was made by the P. P. and allowed

by the court, despite opposition by the defence. Therefore, we do not take into account this criticism seriously. Even if we hold that the clothes did

not contain blood stains this evidence looses much of its credibility and utility when we note that these incriminating materials also were not put to

the accused and his explanation sought in his 342 statement.

38 On merits the appellant's Counsel attempted to exclude this evidence stating that there is no evidence about the blood group of the accused and

the deceased and in this absence of this evidence no inference adverse to the accused can be drawn from the mere presence of blood on the

clothes. He also attempted to explain away the presence of blood on the appellants clothes. According to him, there is sufficient material in the

evidence to show that the appellant had attempted to disuade his father Nand Lal from proceeding to the police station. He has grappled with his

father when their bodies came into contact with one and other. He submits that because of this contact there was the possibility of blood stains

getting impressed upon the appellants clothes. The evidence in the case according to him is to the effect that the blood stains on the clothes of the

appellants were feeble which is the consistent with the theory that they appellants body came into contact with the clothes of Nand Lal.

A further criticism was made by the appellant's counsel about the absence of any entry regarding the seizure of clothes in the FIR and the

general diary and also about the unsatisfactory nature of the seizure witnesses; Moti Ram is the omnibus witness. Ram Krishan who is the son of

one of the deceased was neither cited nor summoned. He would have passed to consider this case a little more minutely. We do not do so for the

reason that the blood stained evidence has been rendered largely inadmissible since the appellant was not asked about in his statement u/s 342 Cr.

P. C.

The appellant's counsel brought to our notice certain other broad features to satisfy us that the police had tried to give a shape to the case. The

first information was made at the police post on 2641975. The FIR was registered at police post or. 2641975. The FIR was registered at police

station, Kathua, on 2741975. It reached magistrate' court on 2741975 and the magistrate has endorsed ""Seen"" on 2911975 The learned counsel

for the appellant submits that the delay has not been explained and in a gruesome murder like this, the paper should have been despatched with

utmost expedition. The inordinate delay in to is case gives room for suspicious that the police wanted to give a shape of their own to the case. We

do not think it necessary to deal on this aspect of the case in any detail because the evidence has been otherwise found by us to be suspect.

The Id. Advocate General in his submissions forcefully contended that the evidence of the defence witnesses clearly proved the prosecution

case. They had spoken in harmony with a substantial portion of the prosecution case. He stated that the attack against the confessional statement

of Nand Lal was not sustainable because the magistrate took care to tell the Nand Lal he would be sent to Judicial lockup after the confessional

statement was recorded by him. He further stated that the theory of torture on Nand Lal is not born out by the evidence in the case, was sufficient

and conclusive in bringing home guilt to the accused.

To sum up we find there is neither direct nor acceptable circumstantial evidence in the case to connect the accused with the crime. His

presence at the Panchayat is consistent with his innocence He was present because his father was in the Panchayat The evidence of his coming

back again is net free from doubt. The alleged confessional statement by Hand Lal suffers from various legal infirmities. It can implicate the

appellant only as a confession of the coaccused. They have to be completely ashewed from consideration for the reason that they were not put to

him in his 342 statement. The extra judicial confession alleged to have been made by Nand Lal implicating the appellant also suffer from the same

legal infirmities. Apart from this the witnesses who speak about it, does not speak in unison about the exact word spoken by Nand Lal. The

disclouser statement alleged to have been made by the appellant, cannot be relied upon, since it was not put to him The recovery of the Dharat it

self may be circumstance in support of the prosecution case but the suspicious nature of the disclouser statement manner in which lock birth in the

investigation and the absence of the questions put to the accused about this, renders the recovery of Darat also unserviceable to the prosecution.

The last seen theory also is not above suspicious because of the unsatisfactory nature of the evidence of Jap dish Raj. The dead bodies are seen in

the Havali. There is no evidence that the appellant has any right over this. Thus the circumstantial evidence cannot be said to lead to the only

hypothesis that the appellant before us is the real culprits for the murder in question. We cannot exclude the possibility in question of some one else

having been responsible for the murders.

It is after giving very anxious consideration to the evidence in the case that we set aside the conviction and sentence of the appellant by our

short judgement given on 26tb December, 1983. We have supported our judgement by the reason given above. The appeals are allowed and the

reference for confirmation of sentence are accordingly rejected.