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2001(5) Supreme 404
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
K.T. Thomas and R.P. Sethi, JJ.
Mahabir Singh etc. etc. -Appellants
versus
State of Haryana -Respondent
Criminal Appeal No. 471 of 1998
With
Criminal Appeal No. 472 of 1998
And
Criminal Appeal No. 380 of 1998
And
Criminal Appeal No. 1067 of 1998
Decided on 26-7-2001
Counsel for the Parties :
For the Appearing Parties : Dr. K.S. Chauhan, Dr. K.P.S. Dalal, Chand Kiran, Vinay Garg, S.K. Verma, Mrs. K. Sarada Devi, Pragyan Sharma, Advocate for Mahabir Singh, Advocate/Advocates.
Held : It would have been desirable that the High Court did not make such strong remarks castigating the police and the subordinate judiciary, when the situation did not warrant such castigation. Judicial restraint should have dissuaded the High Court from making such unnecessary castigation. That apart the legal proposition propounded by the High Court regarding the use of Section 172 of the Code is erroneous. The whole exercise made by the High Court on that aspect was in the wake of what PW-1 said that he was questioned by the Investigating Officer on 12.10.1991. That might be so but the defence counsel used the statement as recorded on 14.10.1991 under Section 161 of the Code for the purpose of contradicting PW-1. (Para 10)
The omission in Ext. DA (the statement ascribed under Section 161 of the Code by PW-1 dated 14.10.1991) regarding the role attributed to A-2 to A-4 relates to a very material aspect and hence it amounted to contradiction. When any part of such statement is used for contradicting the witness during cross-examination the Public Prosecutor had the right to use any other part of the statement, during re-examination, for the purpose of explaining it. The said right of the Public Prosecutor is explicitly delineated in the last part of the proviso to Section 162(1) of the Code. (Para 11)
If a Public Prosecutor failed to get the contradiction explained as permitted by the last limb of the proviso to Section 162(1) of the Code, is it permissible for the court to invoke the powers under Section 172 of the Code for explaining such contradiction? For that purpose we may examine the scope of Section 172 of the Code. That section deals with the diary of proceedings in investigation. Sub-section (1) enjoins on the Investigating Officer to enter in a diary the time at which he began and the place or places visited by him during the course of investigation. Such entries should be made on a day-to-day basis. (Para 14)
A reading of the said sub-sections makes the position clear that the discretion given to the court to use such diaries is only for aiding the court to decide on a point. It is made abundantly clear in sub-section (2) itself that the court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the court uses the entries in a Case Diary for contradicting a police officer it should be done only in the manner provided in Section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is intended to be so used for contradiction. In other words, the power conferred on the court for perusal of the diary under Section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in Section 162 of the Code, debars the court from using the power under Section 172 of the Code for the purpose of explaining the contradiction. (Para 15)
(ii) Criminal Procedure Code, 1973-Section 379 r/w Section 2 of Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970-Appeal under against reversal of acquittal to Supreme Court-A2 to A4 charged u/s 302/34 IPC-Acquitted by Sessions Court -Acquittal reversed by High Court-Appeal against to Supreme Court-High Court wrongly invoking Section 172 Cr.P.C. to explain contradiction-The assertion of PW 1 (eye witness) that A2 to A4 had given blows to the deceased (along with A1) stands contradicted by his own previous statement-Trial Court taking note of it and acquitting A2 to A4-High Court reversing on unsatisfactory reasons in scope of Section 172 Cr.P.C.-Whether correct? (No)-These appeals are allowed-Acquittal of A2 to A4 restored. (Paras 10 to 18 and 25)
(iii) Criminal Procedure Code, 1973-Section 164-Confession-I.P.C. 1860-Section 302-Murder-A1 causing murder of deceased Anand-Seen by PW1 (Sandeep)-Corroborated by confession and PW 10 (father of PW 1) to whom PW 1 narrated the incident-Confession not recorded as required u/s 164 Cr.P.C.-Whether conviction of A1 still sustainable in law? (Yes)-Result -Appeal dismissed.
Held : While dealing with the appeal of A-1 Ranbir Singh we have to point out that both the trial court and the High Court relied on evidence of PW-1 Sandeep after scanning the evidence from different angles. The witness has clearly spoken to the role of that accused. We have no reason to dissent from the said finding regarding reliability of the testimony of PW-1 so far as the first appellant is concerned. (Para 18)
As the confession recorded by PW-2 cannot be brought under Section 164 of the Code it is an idle exercise to consider whether it was voluntary or true. We may again point out, PW-2 has not stated that before taking down the confession he explained to Ranbir Singh that he was not bound to make the confession, and that if he did so, such confession might be used as evidence against him. This is sine qua non for recording a confession. Further a Magistrate is forbidden from recording any such confession until he gets satisfaction that the person is going to make a voluntary confession. There is nothing in the evidence of PW-2 that he had adopted such precaution. For all those reasons we keep that document out of the ken of consideration in this case. (Para 23)
What remains as corroboration for the evidence of PW-1 Sandeep is the testimony of his father PW-10 Nafe Singh. That witness has said that soon after the occurrence PW-1 Sandeep rushed to him and told him about the occurrence. PW-10 has narrated the details of what he heard from his son. In fact PW-10 narrated them in the First Information Statement which he has lodged with the police. It gives the court an assurance that PW-10 really heard those details from his son Sandeep (PW-1). Section 157 of the Evidence Act permits the court to use any former statement made by a witness before any person relating to a fact if it was made "at or about the time when the fact took place." The interval between the occurrence and the time of PW-1 s reporting to his father, did not cross the boundaries envisaged by the words "at or about the time when the fact took place" in Section 157 of the Evidence Act. (Para 24)
The upshot of the above discussion is that we have to confirm the conviction and sentence passed on appellant Ranbir Singh. We do so. We dismiss the appeal filed by him. But we allow the appeals filed by the other three appellants (Mahabir Singh, Sultan and Sis Pal), and the conviction and sentence passed on them as per the impugned judgment of the Division Bench of the High Court will stand set aside and the order of acquittal passed in their favour by the trial court will stand restored. (Para 25)
Certainly. Here are the key points derived from the provided legal document:
The conviction of the first accused (A1) under section 302 IPC by both the trial and appellate courts is upheld, supported by eyewitness testimony and corroborative evidence (!) (!) (!) (!) .
The convictions of the other accused (A2 to A4) under sections 302/34 IPC, based on the reversal of their acquittal, are found to be legally unsustainable due to incorrect application of procedural provisions, specifically Section 172 Cr.P.C., by the High Court (!) (!) (!) .
The appellate court restores the acquittal of A2 to A4, emphasizing that the evidence against them was not sufficient to establish their involvement beyond reasonable doubt (!) .
The evidence of eyewitness Sandeep (PW-1) is considered reliable regarding the role of A1, and the testimony of his father (PW-10) provides corroboration of the occurrence details reported immediately after the incident (!) .
The confession of A1 recorded by a Magistrate, who did not verify the identity of the confessor or ensure voluntariness as required under law, is deemed inadmissible and cannot be used as evidence against A1 (!) (!) (!) (!) .
The legal exercise undertaken by the High Court to examine entries in the police case diaries under Section 172 Cr.P.C. for the purpose of contradicting witness statements was found to be legally incorrect, as such diaries are only for aiding the court and not for substantive evidence or explanation of contradictions (!) (!) (!) (!) .
The court highlights the importance of cautious review of evidence when reversing an order of acquittal, noting that such decisions require strong and clear reasons, especially considering the presumption of innocence and the benefit of doubt (!) .
The evidence regarding the absence of proper legal safeguards during the recording of A1's confession, including the lack of explanation about the right to refuse to confess, renders the confession inadmissible (!) .
The report of the autopsy confirms multiple stab injuries inflicted on the victim, indicating a brutal attack by the accused (!) .
The overall judgment emphasizes judicial restraint, proper procedural adherence, and the importance of reliable evidence in criminal proceedings, especially when dealing with confessions and the use of police case diaries (!) (!) (!) (!) .
Please let me know if you need further elaboration or specific legal advice based on these points.
JUDGMENT
Thomas, J.-An accused in a murder case barged into a courtroom on his own during the morning hours, exhibiting a knife and wanting the Magistrate to record his confession. The Magistrate obliged him to do so and after administering oath to him the Magistrate recorded the confession and got it signed by the confessor. A Sessions Judge and Division Bench of the High Court of Punjab and Haryana accepted the said confession as legally admissible, found it to be genuine and voluntary and acted upon it, among other things, and convicted the confessor of a murder-charge and sentenced him to life imprisonment. He is Ranbir Singh - the first accused - who filed this appeal by special leave.
2. There were three other accused arraigned along with Ranbir Singh for the offence of murder of the same deceased with the aid of Section 34 of IPC. The Sessions Court found them not guilty and acquitted. But the Division Bench of the High Court, on appeal filed by the State, reversed the acquittal and convicted them also under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life. They have filed this appeal as of right under Section 379 of the Code of Criminal Procedure (for short the Code ) and Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. All the appellants were heard together.
3. The case relates to the murder of a twenty-year old youth by name Anand, on the evening of 11-10-1991 by stabbing him all over his body, practically sparing no limb left unwounded. Prosecution has traced out the backdrop that the said deceased was responsible for the untimely death of an adolescent girl, the sister of Ranbir Singh, as the aftermath of that lass being ravished. Though Ranbir Singh described to others that his sister died due to cardiac arrest he was harbouring in his mind an unstable vengeance towards the deceased.
4. On the date of occurrence the deceased visited his sister s house at Gangeswar Village. According to the prosecution, while he and his nephew (Sandeep) were on an evening stroll he was buttonholed by the appellant who suggested to the deceased to have a walk with him but the deceased did not respond to the said suggestion. Then the appellant Ranbir Singh caught him and stabbed with a knife on his abdomen. He wriggled out of the grip of the assailant and made a bid to escape from the scene, but he was intercepted by all the four appellants and they all inflicted blows on him. He fell down after sustaining a large number of injuries and died on the spot itself.
5. Dr. S.S. Punia (PW-9) conducted the autopsy of the dead body of the deceased. He noticed as many as 31 stab injuries on different parts of the trunk of the body, 4 on the face, 6 on the neck, 5 on the chest, 5 on the abdomen and 5 on the back and the remaining on other portions of the body. The description of the ante-mortem injuries as narrated by the doctor in the post-mortem report reflects the intensity of the wrath of the assailants towards the victim.
6. Prosecution examined PW-1 (Sandeep) as the solitary eye witness to the occurrence. His father Nafe Singh (PW-10) was examined to speak to the version reported to him by PW-1 soon after the occurrence. It was PW-10 who lodged the F.I.R. on the basis of the information supplied by Sandeep. The Judicial Magistrate who recorded the confession of Ranbir Singh was examined as PW-2. The other prosecution witnesses were mostly officials. The appellants when examined under Section 313 of the Code, denied their involvement in the occurrence altogether. The Sessions Judge placed reliance on the testimony of PW-1 and also on the confession of the appellant Ranbir Singh besides the evidence of PW-10 as a piece of corroboration. The trial judge reached the conclusion that the deceased was incessantly stabbed by Ranbir Singh alone. He was not satisfied with the evidence against the remaining appellants. He pointed out that PW-1 when interrogate
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