State vs Jagjit Singh

Chet Ram Thakur, J.—This is an appeal by the Government against the acquittal of Jagjit Singh, who had been tried by the learned Sessions Judge u/s 302 and 392 read with Section 397 of the Indian Penal Code for having committed the murder of Ratti Ram and also for having robbed him of his valuable articles.

The facts of the case are that the accused Jagjit Singh was employed as a Mason, while Ratti Ram deceased was employed as a Concretor in 128-Construction Company in the Director-General of Border Roads (G.R.E.F.) which had its headquarters at Basantpur within the then District Mahasu. Both these persons were, however, attached to 108-Construction Company and were posted at Manali till the afternoon of 15th of February, 1968. Since the accused and the deceased along with other persons were to proceed on leave, they left Manali for Basantpur on 16th of February, 1968, vide movement order (Ex. PAK) which was delivered to one Dhuma Shankar Prasad (P.W.). Kaman Singh and Kewal Singh had left Manali on the 15th of February, 1968 and they stayed for the night at Kulu. They left Kulu on the 16th morning reaching Sundernagar on the same day. The vehicle went out of order and therefore, they had to stay there. At about 1.00 or 1.30 P.M. a vehicle of D.G.B.R. reached Sundernagar in which they found Jagjit Singh accused, Ratti Ram deceased and Dhuma Shankar Prasad. They also boarded the same vehicle. As that vehicle was bound for Chandigarh, they all got down at Bilaspur at about 4.30 P.M. and stayed there for the night. In the morning of 17th February, 1968 at 6.00 A.M. Kaman Singh, Kewal Singh and Dhuma Shankar Prasad boarded a bus at Bilaspur for Simla whereas jagjit Singh and Ratti Ram did not come by that bus. Kaman Singh got down from the bus at Boileauganj due to some work and when he reached the bus-stand he found Ratti Ram and Jagjit Singh accused there. At about 4.30 P.M. or 5.00 P.M. he along with Jagjit Singh and Ratti Ram left for Basantpur by D.G.B.R. vehicle. Kewal Singh, who had gone earlier to Sanjouli also met them and he also boarded the same vehicle. They reached Basantpur at about 7.00 P.M. The truck stopped in front of Sunder Lal's shop. Jagjit Singh accused and Ratti Ram deceased placed their beddings in that shop while Kaman Singh and Kewal Singh went straight to the Unit.

It is the prosecution story that the accused Jagjit Singh and Ratti Ram deceased after the former had asked the shop-keeper to keep some vegetable for them, went to the D.G.B.R. camp with their beddings where they met Kartar Singh, a Pioneer in the 108-Construction Company as also T.V. George and they reported their arrival. T.V. George directed Kartar Singh to provide them accommodation in one of the tents in the camp. They went with him and spread their beds in the tent. After sometime it is alleged that they went to some hotel-cum-shop where they took liquor and some vegetables and left the hotel towards the Bridh Ashram. Ratti Ram was stated to have been dead drunk and the accused, taking advantage of his condition, was alleged to have given a push to Ratti Ram on the road side near Bridh Ashram. When Ratti Ram fell down, the accused dragged him down the road some 30 yards. There hit him on his head with stones. Thinking that Ratti Ram had died, he was alleged to have taken out a purse-cum-diary containing a sum of Rs. 836 tied in a handkerchief from the pocket of Ratti Ram. There was a Titus watch with a nylon strap on the wrist of Ratti Ram which was pulled by the accused with the result that the hooks of the watch were broken and the strap remained on the wrist of Ratti Ram. After that he returned to the hotel. While the accused was handing over the price of a plate to the hotel-keeper, the persons viz; Sunder Singh, Chet Ram and Chhangu Ram noticed some blood on the pant of the accused. On inquiry he told that he had a fall and it was on that account that his pant had been stained with blood. It was also alleged that the accused was in a nervous state at that time. Then the accused went to the tent where he enquired from his tent mates, namely, Ram Lal and Sohan Singh if Ratti Ram had returned to the tent or not. They replied that it was the accused who knew better as to where his companion was, as all of them had gone to sleep. On the next morning that is the 18th of February, 1968, the accused was alleged to have informed T.V. George that Ratti Ram was missing since the previous night. He asked Jagjit Singh accused to make a search for his companion. He also detailed some other persons including Om Parkash to make a search for Ratti Ram. At about 11.00 A.M. Om Parkash informed T.V. George that Ratti Ram had been found in an injured and unconscious state near Bridh Ashram and that Jagjit Singh was also there. Ratti Ram was removed to the camp, first-aid was rendered to him and then he was rushed to the Civil Hospital at Suni. After the removal of Ratti Ram to the Civil Hospital, T.V. George had noticed some blood-stains on the belt of the accused and he was put under custody. Ratti Ram was sent from the Civil Hospital, Suni to the Military Hospital at Simla, where he died between the night of 18th and 19th of February, 1968, at 12.50 A.M. T.V. George had taken off the blood-stained clothes of the accused after Ratti Ram had been sent to the Military Hospital at Simla.

It is further alleged that on the 19th of February, 1968, Jagjit Singh accused had made an extra-judicial confession to T.V. George and Prem Singh, who was a Haveldar Major in 108-Construction Company. He told them that he had concealed the purse, the handkerchief and the amount of Rs. 836 in a hole of a parapet wall on the road near the camp. He had also informed them that in the early hours of the 18th morning at 3.00 A.M. he had concealed his blood-stained warm pant in some bushes near the latrine of the D.G.B.R. camp. On receiving this information T.V. George accompanied by a few other persons had recovered the articles from the places pointed out by the accused.

After the death of Ratti Ram, the information was given at Dhalli Police Station and a formal F.I.R. was registered and the police reached at the place of the occurrence on the 21st of February, 1968 and took the articles from T.V. George in its possession and it is further stated that the accused made a confessional statement u/s 164, Code of Criminal procedure, before Shri Mohinder Lal, Magistrate First Class, Kasumpti. The police, therefore, put up the challan and the Magistrate First Class committed the case u/s 302 and 392 read with Section 397 of the Indian Penal Code.

The accused denied the prosecution story of having murdered Ratti Ram and about having made any extrajudicial confessional statement or any judicial confession and got any articles recovered or any discovery statement made.

The accused examined two witnesses in defence. D.W.-2 is one Dharamvir Ahluwalia who belongs to Bhatinda Town. He is purely a chance witness who had never been to Suni before 17th February, 1968 and according to him he went along with S.S. Bindra on the 17th February, 1968, on a motor-cycle from Tattapani to a place near Suni at about 11 or 11.30 P.M. He says that he found there that six or seven army people were beating one Hindu gentleman. This statement does not inspire any confidence. From his statement it is also evident that he reached Simla at 4.00 A.M. on 18th February, 1968, which does not appear to be correct because February is a cold month and nobody in these hills dares to move out in such cold and muchless a man from the plains and that also from Suni without any particular object or motive. The learned Sessions Judge has also not relied on this defence evidence. The other witness is a Handwriting Expert. He has stated that the writing Ex. PK/1 is a camouflage writing. It may be stated that in so far as the Experts opinion is concerned the same is merely an opinion and the Expert will depose in favour of the party calling him. Therefore, I decline to rely upon him.

This is not disputed that Ratti Ram had died and it is also manifest from the medical evidence that he had the following injuries on his person:

(1) Lacerated wound 4"�3" and 1/2" deep on skull 3" above the left pinna; skull bones fractured and visible.

(2) Lacerated wound 1"� 1/2" and 1/2" deep, half inch in front of left tragues of car.

(3) Left pinna with lacerated wound 1/2" � 1/2" size.

According to the opinion of the doctor the death of the deceased was due to head injuries, leading to haemorrhage owing to fracture of bones and laceration of the left half of the brain. The time between the injuries and the death, in his opinion, was 48 hours and the injuries mentioned by the doctor could have been caused by a blunt weapon such as stone.

Now the question is as to who was responsible for causing these fatal injuries on the person of Ratti Ram.

The prosecution has relied on a number of circumstances such as the factor that it was the accused who had been with the deceased at Manali and had been writing letters to his brother and knew the monetary position of the deceased and he was the person who accompanied him to Basantpur and was aware that the deceased had money on his person. Further that he was the person in whose company the deceased was last seen. Thereafter there was recovery of blood-stained clothes from his person and the recovery of the money. There was extra-judicial confession of T.V. George and others and then there was judicial confession made by him although the same was later on retracted. Then the recoveries which are made by the accused Further, there was a letter (Ex. PK/1) found from the person of Ratti Ram deceased which was proved to be in the handwriting of the accused. These were the factors, according to the prosecution, which had proved beyond any shadow of doubt, the charges against the accused and that the learned Sessions Judge had erred in acquitting him.

It is not denied by the accused that they were posted at Manali in 108-Construction Company, the headquarters of which were at Basantpur. According to the accused, he had stayed for the night of 16th February, 1969, at Mandi due to high fever. But this contention of his was not held to be proved by the evidence; on the contrary, it had been proved from the prosecution version that the accused and the deceased reached Basantpur along with Kewal Singh and Raman Singh at 7.30 P.M. on the 17th February, 1968.

It is at this juncture that the learned Sessions Judge has stated that there is a variation in the prosecution evidence. According to Kewal Singh and Raman Singh they had left for D.G.B.R. camp soon after their arrival at Basantpur while jagjit Singh and Ratti Ram had stayed behind near the hotel of Sunder Singh. One of the grounds advanced to reject the testimony of Sunder Singh on this part, of the story was that it was in direct conflict with the testimony of Kartar Singh and Ram Lal who had stated that the accused and the deceased came to the camp of D.G.B.R. as soon as they alighted from the truck and they spread their beds in the tent. It is, however, clear from the statements of these witnesses, namely, Kartar Singh, Ram Lal and Sohan Singh, that the accused and the deceased after having spread their beds left that tent. Sunder Singh also slates that as soon as they got down from the truck in which they came from Simla they stayed there for sometime outside his hotel. Jagjit Singh had some talk with him and then took two empty bottles and went to answer the call of nature. When they returned they took their beddings and went to the tent. However, at that time Jagjit Singh told him to keep some potatoes for them. It was after about one hour or so that they returned to the hotel. Therefore, I do not find any discrepancy in the statements of these witnesses. The only thing is that Kartar Singh has stated that they got down from the truck and they straightaway proceeded to the tent where they spread their beds and then after sometime they left the tent. The accused returned to the tent after sometime whereas his companion did not return. Therefore, no discrepancy can be spelt out from the statement. The discrepancy is very very minor and which discrepancy is bound to occur in the case of a truthful witness especially when the statement is made after the expiry of such a long time. In the present case the statement of the witness was recorded alter about fifteen months. Sunder Singh has also stated that after having stayed outside his hotel for sometime, Jagjit Singh had some talk and asked for two empty bottles and after sometime having given him instructions to keep some potatoes left that place with their beddings to the tent. The learned Sessions Judge, therefore, in my opinion, was not right in treating this minor discrepancy as a material one. In Ramanand Singh and Another Vs. State of Bihar, it had been held by a Division Bench of that High Court that a discrepancy is bound to occur when witnesses depose about such an incident from their memory some months after the incident.

It has further been held by the learned Sessons Judge that the statement of Sunder Singh did not inspire confidence inasmuch as he was not supported by any other witness on the point that the accused took empty bottles and then the accused and the deceased took liquor and a plate of potatoes. The reason for not believing the testimony of Sunder Singh assigned by the learned Sessions Judge is that it could not be believed as there was no person present in the hotel at that time. There can be no wonder if there was no person at that time in the hotel because Basantpur is not a big place. It is a very small place situated as it happens to be in a rural area. In so far as Chhangu Ram and Chet Ram are concerned they both stated that they reached the hotel only and at about 9.00 or 9.30 P.M., when the accused came there all alone and Sunder Singh asked him to return the plate. When the accused could not return the plate he was asked to make the payment of the price of the plate and which the accused paid there and then. So there is nothing improbable if the accused and the deceased took liquor and their meals outside the hotel of Sunder Singh at that night before 9.00 P.M. This time exactly accords with the time as stated by Sarvshri Ram Lal, Sohan Singh and Kartar Singh. According to them also the accused and the deceased after having spread their beds left the tent and the accused returned to the tent at about 9.00 P.M. Therefore, I am of the view that the learned Sessions Judge was not right in disbelieving the statement of Sunder Singh on this point especially when there is nothing to discredit him. The statement of Sunder Singh has been disbelieved on this account also that in his statement Ex. P.W.22/A made by him before the case was tried de novo, he had stated that he never stated that the name of Ratti Ram had been given out by Jagjit Singh to him and that in his police statement also he did not mention that the accused told the witness the name of Ratti Ram, Such like discrepancy and minor omissions cannot be said to be fatal to the prosecution case. These are only omissions and not contradictions. Moreover, when the case was tried afresh it was after 15 months that he made the statement and, therefore, these minor details could not be expected from a witness unless he was required to memorize the version. Further the learned Sessions Judge has also remarked that there was an attempt on the part of the prosecution to create evidence which may be incriminating in its nature. The witness had asked the accused to return the plate to him on the next morning after consulting or talking to his companion and Jagjit Singh accused is alleged to have replied that Sunder Singh should give up the question of talking to his companion and that he could take four annas from him as the price of the plate. There is definitely some attempt to show that Ratti Ram had come there earlier with him and who was not there at that time but from this it cannot. be inferred that the prosecution story is a tissue of lies. Such like exaggerations are bound to be there in human beings. So the story of the return of the plate is not at all unnatural and false.

The further fact is that when Jagjit Singh was giving the price of the plate to Sunder Singh, Chhangu Ram, Chet Ram and Sunder Singh noticed blood on the pant of the accused. According to the learned Sessions Judge this part of the statement appears to be false inasmuch as there is no corroboration to the statement of Sunder Singh by the other two witnesses. Sunder Singh says that he noticed blood on the pant as also on the shirt of the accused whereas the other two witnesses deposed to have noticed the blood on the pant alone. This may be to some extent exaggeration on the part of Sunder Singh. May be that the shirt got stained with blood because of its impact with the pant which was soaked with fresh blood and it is also quite probable that the shirt portion may have bulged out from the pant and Sunder Singh may have noticed the blood stains on the shirt whereas the same might have escaped the notice of the other two witnesses. Therefore, on that account we cannot doubt the testimony of Sunder Singh wholly unworthy of credence.

For the above reason, I am of the view that the criticism made by the learned Sessions Judge with regard to the testimony of Sarvshri Sunder Singh, Chhangu Ram and Chet Ram does not appear to be correct. From the statement of Sunder Singh coupled with the statements of Kartar Singh, Ram Lal and Solum Singh it is abundantly clear that the accused and the deceased left the tent after 7.30 or 7.45 P.M. and that the accused returned to the tent at about 9.30 P.M. all alone. From the statement of Sunder Singh coupled with the statements of Chhangu Ram and Chet Ram (P.Ws.) it is further evident that the accused went to the hotel at about 9.00 P.M. or so when he paid four annas on account of the price of the plate to Sunder Singh and at that time also he was all alone and one thing is quite clear that at that time his pant was found blood-stained by the three witnesses.

In para 12 of the judgment the learned Sessions Judge has commented upon the statements of Ram Lal and Sohan Singh who had stated that the accused and the deceased had left the tent after having spread their beds and that the accused returned to the tent all alone at about 9.00 or 9.15 P.M. Ram Lal found the eyes of the accused to be red and according to him he appeared to be drunk and he enquired from these two witnesses as to whether his companion, namely, Ratti Ram, had returned or not. These two witnesses told him that it was for him to state as to where his companion was. On this basis the learned P.P. had argued before him that this indicated the guilty mind of the accused. The learned Sessions Judge repelled this submission of the learned Public Prosecutor for the reasons that it was quite dark in the tent and it was not possible for Ram Lal to see anybody's face muchless the eyes in the darkness and that it was impossible to believe that it was Jagjit Singh who had returned to the tent at about 9.00 or 9.15 P.M. He relied on the testimony of Sohan Singh who had stated that either it was Jagjit Singh or Ratti Ram who had returned to the tent at that time. Kartar Singh who heard the talk between Jagjit Singh and one another person also could not definitely state whether it was Jagjit Singh who was talking to Sohan Singh. It is on that ground that he has disbelieved the evidence of these witnesses but, as already stated, these discrepancies and the minor exaggerations on the part of the witnesses will not render the prosecution version false. Generally the people have a tendency to exaggerate things and there is no wonder if Ram Lal may have said that when he had a talk with Jagjit Singh his eyes were red. He may have formed this opinion from the talk he had with Jagjit Singh and that he was drunk and as a result of drink his eyes may have got red. Whatever the case may be the fact remains that Jagjit Singh came to the tent all alone and the deceased did not come to the tent although the accused and the deceased came to the tent earlier together. They spread their beds and then they left the tent.

The statement of Ram Lal (P.W.) has also been disbelieved on this account that he stated to have seen the blood stains on the Angola shirt, the pant and the pugri of Jagjit Singh accused at 5.00 A.M. on the next day when he was sitting in his bed, although the prosecution case was that the accused had concealed his pant in a bush at about 3.00 A.M. It may be so. To this extent we can say that the witness is not deposing the truth but we cannot discard his testimony in its entirety. The work of the Court is to sift the grain from the chaff and to find out the truth from the falsehood and if a particular portion is wrong that will not follow that the other portion or the entire evidence is false. We have to read the evidence as a whole and not to take a certain part in isolation.

Further it had also been observed by the learned Sessions Judge that T.V. George had checked the camp between 9 P.M. and 10 P.M. on the night of the 17th of February, 1968, and he did not find either Jagjit Singh or Ratti Ram in the tent and in case the prosecution story that Jagjit Singh had returned to the tent all alone at about 9.15 P.M. had been true, T.V. George would have found Jagjit Singh in the tent. This point has also been criticised by the learned Advocate-General on the ground that there cannot be accuracy of time and the time stated by the witness is only approximate. T.V. George undoubtedly may have checked the camp between 9 P.M. and 10 P.M. but that does not necessarily mean that he checked the tent at exact 9.15 or 9.30 P.M. nor it can be said as stated by the witnesses that the accused returned to the tent at exact 9.15 P.M. or 9.30 P.M. The time is only approximate and therefore it is quite probable that T.V. George may have checked the camp earlier and the accused may have returned to the tent shortly thereafter. So these arc very very minor discrepancies on which the prosecution story cannot be thrown out.

Then the learned Sessions Judge also commented on the time that the accused and the deceased may have spent at the hotel of Sunder Singh before proceeding to the tent and according to him they may have reached the camp at about 8.00 P.M. and then again may have spent there sometime and returned to the hotel at about 8.15 or 8.30 P.M. and, therefore, they may have also taken sometime in taking liquor and their food and that they must have spent half an hour in the hotel and thereafter they must have left towards Bridh Ashram which is also at a distance of a few furlongs and they in no case could have reached the place of occurrence before 9.00 P.M. Then it must have taken sometime for Jagjit Singh to push Ratti Ram to drag him down, assault him with the stones, rob him of the purse and the money and then to have returned to the hotel of Sunder Singh. Then according to him the accused could not reach the camp earlier than 10.00 P.M., whereas according to the prosecution he returned to the tent by 9.15 P.M. after having committed the crime. But this is a very very minor discrepancy. Everybody does not have that sense of time so as to tell the time with precision even to the second. Whatever has been stated it is all approximate and this criticism, there-lore, in my opinion, does not appear to be reasonable.

It is not disputed that the clothes which appeared to be blood-stained were taken from the person of the accused by T.V. George under the orders of the officiating Officer Commanding Shri D.M. Ghosh. These clothes were : Shirt (Ex. P-2), Banyan (Ex. P-3), Kachha (Ex. P-4), Pugri (Ex. P-5) and Belt (Ex. P-6). The Assistant Serologist found excepting the pugri all the other clothes stained with human blood vide his report Ex. PAN. T.V. George, Prem Singh, D.M. Ghosh and Raj Shekhran were the persons who took these articles from the person of the accused before the case was registered and the police arrived at the spot. Ratti Ram had not died at that time. He was only removed to the Civil Hospital at Suni from where later on he had been removed to the Military Hospital, Simla, where, however, he died between the night of 18th and 19th of February, 1968. The learned Sessions Judge held the recovery of these articles from the person of the accused doubtful because of certain contradictions made by T.V. George. In his statement during the previous trial of the case and the de novo trial he had made contradictory versions. There is no doubt that there are contradictions but the reasons for this contradiction is not far to seek. A period of eight months had intervened between the two statements. The first statement was recorded on 28th November, 1968, whereas the latter statement was recorded on 28th July, 1969. Therefore, such like contradictions and discrepancies are bound to occur unless the witness has been specially asked to commit the earlier version to his memory. In Puttan Hassan and Anr. v. Emperor AIR 1936 Bom 52, where it was held that minor discrepancies rather tend to strengthen, than to weaken, the evidence, because they suggest that the witnesses have not learnt the same story by heart. The other authority Emperor v. Muhammad Khan and Anr. AIR 1934 Lah 710, is also to the similar effect.

The accused is alleged to have made an extrajudicial confession to Sarvshri T.V. George, Prem Singh and Raj Shekhran to the effect that he and Ratti Ram took liquor in a hotel and also some vegetable. After taking liquor he and Ratti Ram had gone towards Bridh Ashram. There near the Bridh Ashram he (Jagjit Singh) gave a push to Ratti Ram who fell down on the road. Then he dragged Ratti Ram 30 feet down the road and there hit him on his head with a stone. He also told them that believing that Ratti Ram had died he took out the money from his pocket and hide that money in a hole in a parapet wall by the side of the road near the camp. The accused had further told them that thereafter he returned to the camp, took off his woollen pant because it had blood stains on it and he concealed the same near the latrine adjacent to the camp.

The learned Sessions Judge, as already stated, disbelieved the evidence both with regard to the recovery of these articles as also the factum of extra-judicial confession. The recovery has been disbelieved on the ground that there was no evidence to show that the purse and the handkerchief belonged to Ratti Ram deceased and that the identity of the money naturally could not be established. The extra-judicial confession has rightly not been believed by the learned Sessions Judge. We, however, reject the extra-judicial confession on grounds other than those on which the same was rejected by the learned Sessions Judge. The accused, as has been stated by Prem Singh (P.W. 1) and T.V. George (P.W. 32), was arrested on the 18th February, 1968, as soon as Shri T.V. George and the other witnesses noticed blood stains on the clothes on the person of the accused. On the 19th the accused was in the custody of the military authorities when on being questioned in the first instance he betrayed ignorance about the occurrence but when he was repeatedly questioned he made the alleged extra-judicial confession and also disclosed that he had concealed the articles, i.e., the pant and purse and a handkerchief in a hole under the parapet wall adjacent to the latrine at the camp and which were subsequently recovered by Shri T.V. George and others. Since the accused was in custody, therefore, this extra-judicial confession cannot be said to be free and voluntary, rather, it was made under pressure and inducement. He was not a free agent, rather, he was in the custody of the military authorities. He was arrested under the orders of Shri T.V. George, who was an officer. This confession was also as a result of repeated questioning on the part of Shri T.V. George and Shri Prem Singh and was not made out of his volition. Hence this confession cannot be pressed into service against the accused being induced and involuntary. We are not to see whether the extra-judicial confession made by the accused was true or not when the same had been extorted from him while he was in custody.

Further, the accused made a judicial confession, Exhibit PAA/2, before Shri Mohinder Lal Magistrate 1st Class. In this statement he had narrated the facts how he had murdered Ratti Ram and how he had robbed him of the money. The learned Sessions Judge discarded this judicial confession on the ground that the accused had been in custody since 18th February, 1968. He was sent to the judicial lock up on the 17th March, 1968. By that time he had made a clean breast of the whole thing before Shri T.V. George. All the recoveries that could have connected the accused with the crime had been made. There was hardly any occasion for the accused to have made the confessional statement. There are some circumstances appearing in the case which throw doubt about the voluntary nature of the alleged confession. Further on the 12th March immediately after the confessional statement had been recorded, Shri Joginder Singh S.H.O., Dhalli, wrote to Shri Mewa Singh, the brother-in-law of the accused, that the accused had been arrested for murdering Ratti Ram and that a case u/s 302 of the Indian Penal Code had been registered against him and that Jagjit Singh is confined in the judicial lock-up. There is no explanation as to why this letter was sent by the S.H.O. on the 12th March, 1968. This letter, according to the learned Sessions, Judge, was written as a sort of inducement to the accused to make a confessional statement. This reasoning of the learned Sessions Judge does not appeal to reason. If the letter had been written after the confessional statement had been recorded then how this letter is an inducement. The other ground for rejection of this judicial confession assigned by the learned Sessions Judge is that the confessional statement contained details which do not find any support from any evidence on the record and that the confession was procured in order to complete the entire chain of evidence. Now we have to see whether the grounds advanced by the learned Sessions Judge for discarding this extra-judicial confession are cogent and reasonable.

Chapter 13 of Volume III of the rules and orders of the Punjab High Court prescribes the mode for recording the confessional statement of an accused and also contains the precautions that the Magistrate has to take while recording a confessional statement. According to the instructions issued by the High Court the Magistrate is first required to explain to the accused person that he is not bound to make the confession and if he does so it may be used as evidence against him and that this must appear on the record. It is apparent from Exhibit PAA/2 that the Magistrate has explained to the accused if he understood that he was not bound to confess the crime and further he was made to know that he was making a statement before a Magistrate and that if he confessed the crime then his statement would be read in evidence against him Further, whether he was making the statement voluntarily or making that under any pressure, threat or allurement. It is also apparent from Exhibit PAA/5 that the accused was produced before him on the 11th March, 1968, from the judicial lock-up Kaithu, where he was lodged under the order, Exhibit PAA/1, dated 7th March, 1968, of the Court. The order further says that the Court had told the accused while remanding him to the judicial custody that he should make up his mind whether he should make a confession or not. He had also, it appears, enquired from him if he had any complaint against the police, to which the reply, as can be inferred from the note of the learned Magistrate, was in the negative. On 11th March, 1968, when the accused was produced before the Court, it would be clear from Exhibit PAA/5, the Magistrate again asked the accused that he should think over once again whether he wanted to make any confession or not and was made to sit in the Court and was given about two hours to ponder over. The accused was produced in the Court at 10.15 A.M. and at 12.05 P.M. the Magistrate started recording the confessional statement. From the above, it is clear that the Magistrate took all the necessary precautions as were required of him under the instructions issued by the High Court and, in these circumstances, this judicial confession recorded by the learned Magistrate does not suffer from any procedural infirmity.

The Magistrate, who has appeared as P.W. 30, has stated in cross-examination that the accused was not specifically told on the 7th March that he was not bound to make a confessional statement. But from the note, dated 7th March, 1968, which is marked as Exhibit PAA/1, it is quite manifest that the Magistrate had told him that during this period, i.e., from 7th to 11th when he was ordered to be placed in the judicial lock-up he was directed to make up his mind whether or not he should make a confession. According to the learned Counsel for the respondent the failure to put this specific question in that form that he was not bound to make a confession will render the, statement inadmissible. The learned Counsel for the respondent relies on Chinna Gowda v. State of Mysore (1963) (2) S.C.R. 513 in this behalf. This question, according to him, must be put before remanding the accused to judicial custody. But I may state that in the instant case the Magistrate had told the accused while making the order Exhibit PAA/1 that during the period, i.e. 7th to 11th he should make up his mind whether or not he should make a confession and this was sufficient assurance of the fact that the accused should ponder over the matter whether or not he should make a confession and that it was not obligatory on him to make a confession, as already stated, although he did not put the question clearly and in so many words, but the purport of the question or of what he has mentioned in this note is the same. Therefore, this authority is distinguishable in view of its own facts.

Further the submission made by the learned Counsel for the respondent is that the confessional statement had been retracted by the accused and that showed that it was not a voluntary statement. The statement was recorded on the 11th March, 1968. This statement was retracted by the accused vide his letter, Exhibit DJ, dated 24th March, 1968. He had made the allegations that it was recorded under the police pressure, who gave him beatings and threatened him. Further, the police got several writings executed from him and also obtained his signatures on several blank papers. Again, the accused submitted an application, Exhibit DK, dated 1st July, 1968, retracting his confessional statement, dated 11th March, 1968. In this application he alleged that the police officials put undue influence, threats and also advanced inducement and various promises before the alleged confession was got recorded and he was under constant horror of the police and other officials and that he was not bound by the alleged confession. In his statement u/s 342 of the Code of Criminal Procedure he stated that the Magistrate wrote this statement himself and it had been written before he had been produced in the court. He, however, signed the statement under the police pressure. The Magistrate has refuted this allegation in his cross-examination that the confessional statement was already prepared by the police and was produced before him and he had merely read out and signed that confessional statement. The Magistrate has been examined at length and he has stated that he recorded the statement of the accused and the statement was given by the accused of his own free will after he had put the necessary questions to him. Therefore, I have got no hasitation in holding that this confessional statement of the accused is not at all extorted nor it has been secured under pressure or inducement or promise but has been voluntarily made by the accused, no matter the same has been retracted by the accused.

Now we have to see whether the confessional statement is true. In this regard we have to refer to the evidence. There is no dispute at all that the accused and the deceased were together at Manali and that they had also come together to Basantpur to their headquarter. The accused had stated in his confessional statement, Exhibit PAA/2, that after reaching Basantpur they got down from the truck near a hotel. Kaman Singh and Kewal Singh went to the camp whereas he along with the deceased kept their luggage in the hotel. This fact finds corroboration from the testimony of Kaman Singh (P.W. 19) and Kewal Singh (P.W. 34). Shri Sunder Singh (P.W. 22) the hotel-keeper also corroborates this fact about the accused and the deceased having got down from the truck in front of his hotel-cum-shop, on the evening of 17th February, 1968. This fact is also supported by him that he knew Jagjit Singh before that. Further the witness has corroborated this fact that the accused and the deceased took two empty bottles and they went to answer the call of nature and then after sometime they took up their luggage and went towards the camp.

In his confessional statement the accused had stated that they went to the camp and reported to the N.T.G.R.I. and kept the luggage in the tent and this is supported by the testimony of Kartar Singh (P.W. 2) who says that both Jagjit Singh and Ratti Ram reported to Shri T.V. George, who was a Supervisor Grade I in 108-Construction Company. The witness has stated that thereafter they went to the hotel and brought a bottle of wine and took a plate of potatoes, two glasses of water and one empty glass. Ratti Ram and he took wine. Sunder Singh (P.W.22) has supported this fact that after about half an hour both Jagjit Singh and Ratti Ram returned to his hotel and at that time Ratti Ram had a bottle of wine of red colour in his hand. Jagjit Singh requested him to give him two empty glasses and a glass of water and one plate of potatoes. He gave these articles and then both of them started taking wine outside the hotel. It is also stated that Jagjit Singh gave four annas as the price of the potato vegetable and this is exactly what has been stated by the accused in his confessional statement. After that, according to Sunder Singh, they left the hotel, and Jagjit Singh accused all alone came to his hotel at about 9.00 or 9.15 P.M. The accused has also stated that he went to that very hotel, where he and Ratti Ram took wine. This is also supported by Sunder Singh that on his return he demanded the return of the plate. The accused replied that he had returned the same along with the glasses, whereupon P.W.22 told him that he may enquire this from his companion. The accused told him that he should not bother about his friend and he may charge the cost of the plate and then he paid the price in the presence of one or two other persons. Sunder Singh says that Chhangu Ram and Chet Ram P.Ws. were sitting there at that time. One of the witnesses, according to the confessional statement, enquired from Jagjit Singh as to how his clothes were blood-stained and this fact finds mention in the confessional statement also and he looked towards his pant and then replied that he had a fall and consequently his clothes were stained with blood. Thereafter the accused returned to the tent. Ram Lal (P.W3) supports the fact of the return of Jagjit Singh to the camp at about 9.15 P.M. According to him the accused enquired whether Ratti Ram had come to the tent or not. He and Sohan Singh told the accused as to how they could know-about Ratti Ram and that Ratti Ram was the companion of Jagjit Singh and it was he who would know about Ratti Ram. Jagjit Singh then asked for water. Then he again made the same query. Thereafter Sohan Singh told him not to trouble them and that they have to go on duty next morning. The accused also has made a similar statement. Sohan Singh also makes a similar statement. In the confessional statement the accused has also admitted this fact that he took from the shop of one Charan Dass at Basantpur a paper and a pen and on that he wrote about the death of Ratti Ram in a camouflaged hand-writing that Ratti Ram was beaten at night at about 11 P.M., that he had started outraging the modesty of a woman and he was also over drunk and then after having gone to the place where Ratti Ram was lying he put this letter in his pocket so that he may not be suspected. Charan Dass (PW 8) supports this fact about the demanding of the paper and sending the same to the accused. He also speaks about something being scribbled by the accused on that and after about two or three minutes he returned the pen to him and went away. He identified the paper Exhibit PK/1. The accused has also stated about the recovery of the Angola shirt, kachha, banyan and turban and belt from his person and being taken in possession by Shri T.V. George and others and that the belt was bloodstained and this fact is corroborated by the statement of Prem Singh, T.V. George and others. Therefore, in these circumstances, it appears that the statement is quite true as it finds corroboration in all its material particulars from the other independent evidence brought on the record. The confession though retracted is fully corroborated and as such this confession can be made the basis for conviction of the accused. According to Pangambam Kalanjoy Singh Vs. State of Manipur, it is held that even if a confession is inculpatory corroboration is necessary if the confession is retracted. Similarly in Puran S/o Sri Ram v. The State of Punjab (1) AIR 1953 Supreme Court 459 the Supreme Court held that it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its strength alone. A similar view was held by a Division Bench in Deveeramma v. State AIR 1960 Mys 199. A Division Bench of the Travancore-Cochin High Court in Narayana Pillai Balakrishna Pillai v. Stale AIR 1954 TC 321 also took the same view in the case of retracted confession.

I have discussed a part of the evidence which lends support to the confessional statement made by the accused. Besides, the confessional statement finds corroboration from the testimony of Dr. Raj Kumar Singhal (P.W.9), Major Dr. Mrs. Lakhshmi jhingran (P.W.17) and Major M.K. Seth (P.W. 28). Dr. Raj Kumar Singhal peformed the postmortem on the dead body of Ratti Ram and found lacerated wound 4" � 3" and 1/2" deep on skull 3" above left pinna; skull bones fractured and visible. Lacerated wound 1" X 1/2" and 1/2" deep, half inch in front of left tragus of ear Left pinna with lacerated wound 1/2" � 1/2" size. The accused had stated in confessional statement that he pushed Ratti Ram and he fell down on the road and thereafter he pulled Ratti Ram down the road by catching hold of his legs and then he hit him hard on his head with a stone and his head started bleeding. The doctor has found that these injuries could have been caused by striking the person with stones and these injuries could have been caused by giving a blow by one big irregular stone. The injuries were sufficient in the ordinary course of nature to cause death. The aforementioned injuries could have been caused if the person concerned falls from a sizable height on the stones. Further these injuries could be caused even if the fall had been on a slope. He has deposed that the haemorrhage was due to the injuries that he found on the dead body. P.W.17 Major Dr. (Mrs. Lakhshmi Jhingran) also noticed a fracture on the left side of the parietal bone and multiple lacerated wound. Major M.K. Seth (P.W.28) also found the injuries on the person of the accused. However, the dimension of the injuries according to him was bigger in size. He found extensive lacerated wound on left tempra parietal region with irregular margins, size of the wound 5" � 5" dura deep. Left ear was torn from its base in the upper half and temporalis muscle was seen protruded out of the wound. Three incised looking wounds with sharp margins about 2�" long and � " broad over the upper half of the left side of the neck.

From the aforesaid evidence it is abundantly clear that the confessional statement of the accused stands corroborated in its broad and material particulars. Therefore, the confession though retracted can be made the basis for conviction of the accused notwithstanding the fact that the extra-judicial confession has not been accepted as being admissible.

Insofar as the recovery of handkerchief containing the money is concerned the same cannot be discarded because it was also recovered subsequent to the extrajudicial confession having been made by the accused to Sarvshri T.V. George, Prem Singh and others. This is just like the other recoveries and it finds full corroboration from the judicial confession of the accused, who had stated that he had concealed the same after having committed the act of robbery in the parapet wall quite contiguous to the latrines of the tents. Further, Sarvshri T.V. George and others had put him under custody as soon as they noticed blood stains on the clothes on the person of the accused and suspected him in the commission of the offence and, therefore, while he was in custody he made that disclosure statement, which led to the discovery and this discovery though not reduced to writing can be treated as one u/s 27 of the Indian Evidence Act. Therefore, this piece of evidence which is severable from the other extra-judicial confession can be held to be admissible.

The recoveries of the blood-stained clothes from the person of the accused also connect the accused with the commission of the offence. Further, the letter Exhibit PK/1 has been proved by Shri Charan Dass to have been scribbled by the accused, who took the paper from him and then he left the place. The accused had admitted this fact in his confessional statement and this goes a long way to corroborate the confessional statement. There does not appear to be any reason why the deceased who came from Manali on that night should have proceeded to the house of Prem Singh to outrage the modesty of Mrs. Prem Singh. If it may be admitted that the accused had actually gone to molest the modesty of Mrs. Prem Singh, there was no reason why he had written that paper and kept it in his pocket before he was beaten to death. This letter appears to have been concocted by the accused in order to escape the consequences.

Further the disclosure statement Exhibit PN about having concealed the Titus watch and its recovery vide Exhibit PO corroborates the factum about the robbery of the same by the accused and this fact also corroborates the retracted confession. The learned Sessions Judge disbelieved the disclosure statement as also the recovery of the watch due to the fact that the receipt of the purchase of the watch was not in the name of Ratti Ram but it was in the name of Babu Khan. Further that the nylon strap which remained on the wrist of the deceased after the watch was alleged to have been stripped off from his wrist by the accused was produced by the nurse in the hospital at Simla. In my opinion, these are not very material discrepancies to disbelieve the ownership of the watch when the judicial confession of the accused is quite voluntary and true and the same finds corroboration from other independent evidence on the record. Therefore, there is no reason why this piece of evidence about the disclosure statement and the consequent recovery of the Titus watch should not be believed. Therefore, in my view, the learned Sessions Judge has erred in discarding this material piece of evidence. Thus from the above it is proved beyond any shadow of doubt that the accused caused the injuries on the person of Ratti Ram with the stones so much so that he became unconscious and he robbed him of his valuable articles. Thus, on this ground, I am of the view that the learned Sessions Judge erred in holding that the confessional statement made by the accused was not reliable and correct.

It is quite obvious from the confessional statement of the accused that he first gave him a drink and he also partook of the same. He gave some tablets to the accused in order to accelerate the effect of the drink with the intention to render him out of senses and thus rob him. The accused took the deceased with him and he pushed him on the way and when he had fallen on the road he dragged him to a little distance. Ratti Ram had become unconscious and then he struck him with the stones. The submission of the learned Counsel for the respondent that no abrasions were found on his back belies the prosecution story about having dragged Ratti Ram after he was given a push by the accused, and to that extent, according to him, the confessional statement is also wrong. There is no doubt that the doctor had not detected any abrasions on the back which should have been there as a result of the dragging if the surface was hard, but it was for the defence also to have elicited something in cross-examination from the witnesses about the surface and the soil where Ratti Ram was dragged whether it was really hard or it was full of dust and earth and with no stones on it so as not to cause abrasions. However, this is not a very material discrepancy so as to discard the prosecution version on this score.

We are now concerned as to what is the offence that the evidence has made out in the case against the accused. The accused did give stone blows on the head of the deceased causing him injuries and then robbed him. Therefore, by giving the stone blows on the head the accused intended to cause such bodily injury as was likely to cause death or he knew that such act of his was likely to cause death. Thus in view of the circumstances the offence would not be one punishable u/s 302 rather it would be an offence punishable u/s 304 Part I. Again, the accused is also guilty of having committed robbery after sunset and he has rightly been charged u/s 392 and these offences stand fully proved. While committing the offence of robbery the accused caused grievous hurt to Ratti Ram, therefore, the accused is definitely guilty of an offence u/s 397 also.

Consequently he is to be convicted u/s 304 part I and Section 392 and 397 of the Indian Penal Code.

The second question that arises is as to what should be the punishment that should be imposed on him for the offences made out against him. Keeping in view the circumstances of the case, I would sentence the accused to five years rigorous imprisonment and a fine of Rs. 500 or in default of payment of fine to undergo six months rigorous imprisonment, u/s 304 part I I.P.C. For the offence u/s 392 read with Section 397 of the Indian Penal Code, the accused is awarded punishment of seven years'' rigorous imprisonment and a fine of Rs. 500, in default of payment of fine to undergo further rigorous imprisonment for another six months. Both the sentences shall, however, run concurrently.

The case property, i.e, the blood-stained clothes including the pant recovered from the parapet wall shall be destroyed, as for the watch and the money the same shall be delivered to the heirs of the deceased.

D.B. Lal, J.

I agree.