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1989 Supreme(P&H) 617
PUNJAB & HARYANA HIGH COURT
Gokal Chand Mital and S.S.Sodhi JJ.
Hari Kishan And Another
Versus
State Of Haryana
Criminal Appeal No. 494-DB of 1987,
Decided On : AUGUST 10, 1989
An extrajudicial confession is a weak type of evidence and must be considered in the overall context of the prosecution case and the evidence on record.
Headnote:
MURDER - CONVICTION - UNSUSTAINABLE - ABSENCE OF CORPUS DELECTI - INSUFFICIENT EVIDENCE - EXTRAJUDICIAL CONFESSION - UNRELIABLE - RECOVERIES - NOT ADVANCING PROSECUTION CASE - CONFESSION TO JUDICIAL MAGISTRATE - NOT VOLUNTARY - RETRACTED - ACQUITTAL.
Fact of the Case:
Hari Kishan and Rishi Pal were convicted for the murder of Sat Pal. The prosecution's case was based on circumstantial evidence, including an extrajudicial confession, recoveries made pursuant to disclosure statements, and a retracted confession to a judicial magistrate.
Finding of the Court:
The court found that the prosecution evidence was insufficient to prove the charges against the appellants. The extrajudicial confession was unreliable, the recoveries did not advance the prosecution case, and the confession to the judicial magistrate was not voluntary and was retracted.
Issues: 1. Whether the extrajudicial confession was reliable. 2. Whether the recoveries made pursuant to disclosure statements advanced the prosecution case. 3. Whether the confession to the judicial magistrate was voluntary and genuine.
Ratio Decidendi: 1. An extrajudicial confession is a weak type of evidence and must be considered in the overall context of the prosecution case and the evidence on record. In this case, the extrajudicial confession was made to a person who was related to the deceased by marriage and had no previous association with the accused. The accused was in police custody three days prior to the confession, which raised doubts about its reliability. 2. The recoveries of a letter, a knife, and currency notes did not advance the prosecution case as they were not bloodstained or had any special distinguishing marks. 3. The confession to the judicial magistrate was not voluntary as the accused was not given sufficient time to reflect upon his warning and the doors of the courtroom were not closed during the recording of the confession.
Final Decision: The court set aside the convictions and sentences of both appellants and directed their release.
S.S.SODHI, J.
1. The matter here concerns a murder sans the corpus delecti, with the challenge in appeal being to the wholly unsustainable conviction of the two appellants - Hari Kishan and Rishi Pal for the murder of Sat Pal. They both stand convicted for the offences under Section 302 read with Sections 34, 364 and 201 of the Indian Penal Code.
2. The said Sat Pal deceased was, in relationship, an uncle of the appellant Hari Kishan, Sat Pal being the son of Kura who was the brother of Jowala - the great-grand-father of the appellant Hari Kishan. The other appellant Rishi Pal is said to he a person under the obligation of the appellant Hari Kishan as he had got him appointed as clerk in a College in Delhi.
3. In May 1986, Jaipal, the brother of Sat Pal was serving a life sentence in jail at Jind. According to the prosecution, Sat Pal was to visit him on May 28, 1986. Jaipal and Sat Pal were both married to the sisters of Dalbir Singh. This Dalbir Singh had written a letter to Sal Pal which he wanted to be delivered to him on that day, that is, May 28, 1986, as he himself had to leave earlier, to rejoin his duties. Dalbir Singh, accordingly went to Zile Singh on May 27, 1986 and handed over the letter to be delivered to Sat Pal. On May 28, 1986, when Zile Singh went to Jind and met Sat Pal, He also gave him Dalbir Singhs letter. Harikishan, it is said, had promised to help Sat Pal get employment and was taking him away with him for this purpose. It is further the prosecution case that at that time Sat Pal was carrying a sum of Rs. 7400.00 which, he told Zile Singh, comprised the proceeds of one years chakota for his land and the price of wheat sold by him. Zile Singh, Sat Pal and Hari Kishan then went to the jail where they met Jaipal. At this meeting, Sat Pal is supposed to have told his brother Jaipal that Hari Kishan was going to get him a job. Sat Pal, Hari Kishan and Zile Singh later came to the bus stand from where Hari Kishan and Sat Pal left for Delhi, Sat Pal was not seen thereafter.
4. When Sat Pal did not return for some time and there was no news from him, his sister Vedo - the wife of Zile Singh went to Nagura with Dalbir Singh and met Hari Kishan there, who, on their enquiry told them that he had got Sat Pal employed at Delhi.
5. Over six months passed thereafter, but there was still no news of Sat Pal and it was then that his four sisters met and made an application to the Superintendent of Police Jind regarding the disappearance of their brother Sat Pal, who, they suspected had been murdered by Hari Kishan. This application exhibit PA was made on November 15, 1986 and it was on the basis of this that the present case came to be registered on December 14, 1986.
6. It is now well-settled, as observed by the Supreme Court in Ram Chandra V/s. State of Uttar Pradesh, AIR 1957 SC 381 : (1957 Cri LJ 559), that conviction for an offence of murder does not necessarily depend upon the corpus delecti being found and that there may be reliable evidence, direct or circumstantial of the commission of the murder though the corpus delecti was not traceable. In the present case, there is no eye-witness to the occurrence. The case of the prosecution against Hari Kishan is thus founded upon the evidence to show that Sat Pal was last seen with Hari Kishan and was in fact taken away by him, his extra-judicial confession to Ramji Lal and the recovery of letter exhibit PC written by Dalbir Singh to Sat Pal; a knife and Rs. 1200.00 in pursuance of disclosure statements said to have been made by Hari Kishan, during interrogation, after his arrest.
7. As regards the other appellant - Rishi Pal, the prosecution seeks to rely upon his retracted confession as also the recovery of clothes said to be of Sat Pal deceased, in pursuance of a disclosure statement made by him.
8. In order to establish that Sat Pal deceased was last seen with Hari Kishan and was taken away by him on the pretext of getting him employment in Delhi, the prose
