2003 Supreme(SC) 80

2003(1) Supreme 698
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S. Rajendra Babu, D.M. Dharmadhikari & G.P. Mathur, JJ.
Bhagwan Singh & Ors. -Appellants
versus
State of M.P. -Respondent
Criminal Appeal No. 789 of 2002
Decided on 23-1-2003
Counsel for the Parties :
For the Appellants : Dr. T.N. Singh, Sr. Advocate, Lakhan Singh Chauhan, C.M. Patel and Anil Shrivastava, Advocates.
For the Respondent : Ms. Vibha Datta Makhija and Ms. Bharti Tyagi, Advocates.

IMPORTANT POINT
Trial Judge was right that neither the sole testimony of child witness nor the extra judicial confession of co-accused conclusively prove the involvement and the guilt of the three accused/appellants.

Headnote:(i) Indian Penal Code, 1860-Sections 302/34, 396, 460, 404 and Section 11/13 of M.P. (Dacoity Vihavaran Kshetra) Adhiniyam, 1981-Appellants charged under for entering the house of deceased killing him and hanging him in the house and also killed his daughter Munni Devi by burns-Trial Court acquitted on solitary testimony of alleged child witness Arvind Kumar (PW 19) aged 6 years at the time of incident-And alleged judicial confession of co-accused Pooran Singh (Ex. P1) under Section 164 of Cr.P.C.-High Court convicted on their basis with certain recoveries-Appeal to Supreme Court-Most striking feature against child witness is that though he named appellants on 1.3.84 under Section 161 Cr.P.C. but they were arrested on 12.3.84-No reason given for delay of arrest-No test identification parade-Whether High Court was justified in relying on child witness? (No).

       Held : In our considered opinion, the evidence of the child witness suffers from serious infirmity due to omission of the prosecution in not holding test identification parade and not examining Agyaram to whom as alleged, the child first met after the incident. There are other circumstances discussed by the trial Judge, which also make the evidence of the child witness highly unreliable for basing a conviction. (Para 17)

       Held further : We have also taken note of the fact that even after the alleged involvement of the three accused by the child witness in his statement under Section 161 Cr.P.C to the police, no test identification parade was held. In such circumstances, in our opinion, mere dock identification of the accused by the child in the court cannot be accepted with certainty as a reliable identification [see - Japal Singh vs. State of Punjab, 1996(4) Crimes 74 (SC)]. On the omission of not holding test identification parade the High Court has stated that the accused Bhagwan Singh lived in the neighbourhood of deceased Mata Prasad and the other two accused were also of the same village. Therefore, it was not necessary for the prosecution to have held a test identification parade when the accused was already known to the child. In our opinion, the reason assigned to brush aside such an important omission of not holding a test identification parade is unconvincing. The child was aged about six years at the time of the incident. He used to live with his father and mother at Alampur. It has been mentioned in evidence of some of the witnesses that he used to come off and on with his mother and younger brothers to Murawall to live with the grandfather Mata Prasad. Looking to his age and understanding of the child even though he might have identified accused Bhagwan Singh who lived in the neighbourhood, it was most unlikely that he would have known other two accused who were merely residents of the same village Murawall. The High Court is not fully right in observing that the child was acquainted to three accused already and there was no necessity for the prosecution to have held a test identification parade. In our opinion, therefore, the High Court was wholly unjustified in taking a view of the testimony of child witness contrary to the one taken by the trial Judge and relying on it to convict the accused. (Paras 22, 23 and 24)

       (ii) Criminal Procedure Code, 1973-Section 164-Judicial confession of co-accused-Later retracted-Whether trial Court was right in not believing it? (Yes).

       Held : With regard to the judicial confession made by acquitted accused Pooran Singh to the Judicial Magistrate, there are many striking features casting great doubt on the genuineness of the extra judicial confession which was retracted in writing by accused Pooran Singh in the course of his examination under Section 313 Cr.P.C. The accused Pooran Singh was also arrested along with co-accused under arrest memo (Ex.P18) on 12.3.1984. His extra judicial confession was recorded by the Judicial Magistrate (PW-1) on 09.4.1984 when he was produced hand cuffed before him in police custody. The fact that Pooran Singh was produced handcuffed in police custody on 09.4.1984 has been admitted by the Judicial Magistrate as PW-1 in statement made by him in cross-examination. If Pooran was in police custody, in accordance with the requirement of Section 164 Cr.P.C the Magistrate should have taken care to ascertain that there had been no third degree methods used by the police against him to extract a confession. The Magistrate in deposition as PW-1 does say that he questioned accused, Pooran Singh and the latter confirmed that he was making a statement voluntarily without any pressure. But the record of confession (Ex.P1) does not show that any specific questions were put to accused Pooran Singh whether any physical or mental pressure was put on him by the investigating agency. The first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of confession by the prosecuting agency [See - State of U.P. vs. Singhara Singh, AIR 1964 SC 358]. It has also held by this Court in the case of Shivappa vs. State of Karnataka [1995(2) SCC 76] that the provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. It has also been held that the Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. He should be granted sufficient time for reflection. He should also be assured of protection from any sort of apprehended torture or pressure from police in case he declines to make a confessional statement. Unfortunately, in this case, the evidence of the Judicial Magistrate (PW-1) does not show that any such precaution was taken before recording the judicial confession. The confession is also not recorded in questions and answers form which is the manner indicated in the criminal court rules. The confession was retracted before the trial Judge by the acquitted accused Pooran Singh on 28.7.1985 where, he disclosed that he was produced for judicial confession by telling him that he would be a prosecution witness as an approver. It is also stated that the police had met him in the jail and his signature was obtained on a statement. It appears that the accused Pooran Singh was in police custody when he was produced hand cuffed for recording judicial confession. The Judicial Magistrate also admitted in his statement that he was produced by the police through Police Station Daboh and after recording his statement, he was given back to the custody of police. There was, therefore, every possibility for accused Pooran Singh to have been physically and mentally pressurised for giving a judicial confession on an assurance that he would be made a prosecution witness as an approver. He has retracted his confession before the court on 28.7.1985 in the course of the trial and gave a statement in writing for retracting the judicial confession on 05.8.1985 in his examination as an accused after trial under Section 313 Cr.P.C. In his statement in writing under section 313 Cr.P.C. he stated that he was physically tortured and threatened by the police to agree for giving a false confession. It has been held that there was custody of accused Pooran Singh with the police immediately preceding the making of the confession and it is sufficient to stamp the confession as involuntary and hence unreliable. A judicial confession not given voluntarily is unreliable more so when such a confession is retracted. It is not safe to rely on such judicial confession or even treat it as a corroborative piece of evidence in the case. When a judicial confession is found to be not voluntary and more so when it is retracted, in the absence of other reliable evidence, the conviction cannot be based on such retracted judicial confession. [see - Shankarla vs. State of Rajasthan, 1978 (3) SCC 435 para 23]. (Paras 26, 27, 28 and 29)

       (iii) Criminal Trial-Acquittal by trial Court-Acquittal by High Court-Appeal to Supreme Court-Testimony of child witness and judicial confession rightly not believed by trial Court-Motive and recoveries and other infirmities-Result-Appeal restored-Appeal allowed.

       Held : We find ourselves in agreement with the trial Judge that neither the sole testimony of the child witness nor the extra judicial confession conclusively prove the involvement and guilt of the three accused. In these circumstances, the evidence of recoveries of certain articles of the deceased on the alleged information, given by the accused is concerned, such evidence in itself is too weak a piece of evidence to sustain the conviction of the accused. The trial Judge has held that the recovery of a bottle under memorandum (Ex.P 13) which is an article too ordinary to be stolen and religious book Vishram Sagar with spectacles belonging to the house of the deceased were articles of little value which no accused would have carried after committing a crime. So far as the motive is concerned, no doubt there was a civil dispute pending in civil court between deceased Mata Prasad and accused Bhagwan Singh but that cannot be said to be a motive strong enough for committing such a ghastly crime. At worst it raises strong suspicion against the accused. It is not denied that village Murawall in District Bhind comes under dacoity affected area to which provisions of M.P. (Dacoity Vihavaran Kshetra) Act, 1981 are applicable. In such circumstances, possibility of commission of the alleged crime by unknown criminals is not wholly ruled out. We also find that in this case, the prosecution has tried to rope in the appellants in the crime and have overdone their job by fabricating false evidence of overhearing by the witnesses the plan of murder and openly discussing about it after the completion of the plan. The said evidence was rightly not believed by both the courts. Similarly the evidence of recoveries of articles belonging to the deceased is also an attempt of fabricating some artificial evidence against the accused. For all the above reasons, our conclusion is that the High Court was not at all justified in reversing the verdict of acquittal passed by the trial Judge. In appeal against acquittal, the High Court is competent to reappreciate the evidence to find out whether the trial Judge has misappreciated any part of the evidence or not. Here the appreciation of the evidence made by the trial Judge is proper and the conclusions drawn are reasonable. The High Court, therefore, erred in reappreciating the evidence to substitute its own view for that of the trial Judge. In the result, we allow this appeal. The impugned judgment of conviction and sentence passed by the High Court dated 11.3.2002 is hereby set aside and the judgment of acquittal dated 06.9.1985 passed by the trial court is maintained. The appellants have been re-arrested after their conviction and are undergoing sentence. As a result of their acquittal, they shall forthwith be set at liberty if they are not required in any other criminal case. (Paras 30, 31, 32, 33, 34 and 35)