State of Punjab v. Gurdeep Singh, (S.C.) BS32359
SUPREME COURT OF INDIA

Before:- K.T. Thomas, D.P. Mohapatra and Umesh C. Banerjee, JJ.

Criminal Appeal No. 393 of 1992. D/d. 8.9.1999.

State of Punjab - Appellant

Versus

Gurdeep Singh - Respondent

For the Appellant :- Mr. Lokesh Kumar and Mr. R.S. Sodhi, Advocates.

For the Respondent :- Mr. G.S. Grewal, Senior Advocate (Mr. Harish Kumar) Advocate for Mr. Tej Pratap Singh Mann, Advocate.

A. Evidence Act, Section 21 - Murder - Extra judicial confession - Evidentiary value :-

[Paras 18 and 27]

B. Indian Penal Code, Sections 376 and 302 - Evidence Act, Section 21 - Rape and murder of girl aged 10 years - No evidence except extra judicial confession made by accused - Confession not believed on following grounds and accused acquitted :-

[Paras 27, 25 and 24]

Cases Referred :-

State of Uttar Pradesh v. M.K. Anthony, 1985 Crl. Law Journal 493.

Narayan Singh v. State of M.P., AIR 1985 Supreme Court 1678.

Baldev Raj v. State of Haryana, AIR 1991 Supreme Court 37.

Kavita v. State of Tamil Nadu, 1998(5) JT SC 151.

Makhan Singh v. State of Punjab, AIR 1988 Supreme Court 1705.

JUDGMENT

Umesh C. Banerjee, J. - The short question involved in the matter in issue before this Court is the justifiability of the order of acquittal passed by the High Court by reason of lack of probative value of an extra judicial confession, as found by the High Court, in an appeal against conviction and sentence under Section 376 read with Sections 302 and 201 of the Indian Penal Code.

2. Admittedly, there is no direct evidence available on the record so as to attribute the commission of crime to the respondent herein but it is only on the basis of an extra judicial confession that the learned Sessions Judge thought it fit to pass the sentence for life imprisonment, which stands reversed by the High Court.

3. Confession in common acceptation means and implies acknowledgement of guilt - its evidentiary value and its acceptability however shall have to be assessed by the Court having due regard to the credibility of the witness. In the event however, the Court is otherwise in a position having due regard to the attending circumstances believes the witness before whom the confession is made and is otherwise satisfied that the confession is in fact voluntary and without there being any doubt in regard thereto, an order of conviction can be founded on such evidence.

4. The observations of this Court in the case of State of Uttar Pradesh v. M.K. Anthony, 1985 Crl. Law Journal 493 seems to be rather apposite in this context.

5. In paragraph 15 of the Report, this Court observed as below :-

6. Incidentally, this Court in the case of Narayan Singh and others v. State of M.P., AIR 1985 Supreme Court 1678 expressly observed that it is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. In paragraph 7 of the report this Court observed :

7. In Baldev Raj v. State of Haryana, AIR 1991 Supreme Court 37 this Court further stated the law as below :-

8. While it is true that in Narayan Singh's case (supra) this Court expressly observed that it is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence, a later decision of this Court in Kavita v. State of Tamil Nadu, 1998(5) JT SC 151 stated that in the very nature of things it is a weak piece of evidence. In paragraph 4 of the Report this Court in Kavita's case (supra) observed :

9. Apparently there may seem to be some expression of divergence but on the totality of the situation, question of there being any difference of expression of opinion does not arise, since Kavita's case (supra) in no uncertain terms laid down that the evidentiary value of the extra judicial confession depends upon the veracity of the witnesses to whom it is made and it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses.

10. Having dealt with the basics of the legal issue as regards evidentiary value of extra judicial confession and adverting to the factual matrix of the matter at this juncture, the prosecution case as made out is to the following effect :

11. The deceased being a young girl of 10 years along with her brother Sandeep had gone to the house of the accused around 7.30/8.00 p.m. on 18th November, 1989 for the purpose of watching television. The evidence disclosed that Rajinder Singh who happened to be father's sister's husband did also come to pay a visit to the house of the deceased's father and it so happened and as the evidence records that Rajinder Singh also went to the house of the accused for watching television along with the two little children. The factual score depicts that the brother continued to watch the television but the elder sister left the television room to go back to her house. Rajinder Singh again as the evidence disclosed came out as well and found that the accused in a drunken state following the deceased on her way home around 8 O'clock in the evening.

12. The next piece of evidence is rather curious : the deceased girl does not reach home but Rajinder Singh reaches home had his meal along with the parents of the deceased. The younger brother who also went out for television watching in the house of the accused, returned home and joined the parents and the uncle for the meal - there was, however, no anxiety for the missing daughter of the family and it was only after Rajinder Singh left for his house which is at the text village and around 10 to 15 k.m. away, the deceased's father Jaswant Singh tried to effect a search about the daughter - Jaswant Singh, in a very natural way, went to the house of the accused and found the accused and his brother to be very heavily drunk in the house itself and thus had to come back without much information about the missing daughter.

13. The evidence goes on to record that next morning the body of the deceased was found in the open verandah of a building belonging to one Smt. Ajmer Kaur. In her evidence Smt. Ajmer Kaur, being PW4 stated that when she had gone to the verandah for taking 'turi' for the cattle, found the dead body of the child lying under the heap of 'turi' and on such a find immediately informed the girl's father Jaswant Singh. On this score the father of the deceased stated that he on being informed cleared the 'turi' and saw the dead body of his daughter lying there fully naked and her salwar was lying near her. The father stated that she was smeared with blood and was dead and thereafter requested the son of the Sarpanch to keep a watch on the body and went to the police station to lodge the report alongwith the Sarpanch. The police arrived and the usual formalities were completed and FIR was lodged and on completion of the inquest sent the body for post-mortem examination.

14. Dr. H.N. Sharma, P.W.5 found the following injuries on the person of the deceased :-

15. The post-mortem Doctor opined that death was caused due to injury No. 1. He also found that the deceased was subjected to rape before the murder and the age of the deceased was between 7 to 11 years - the facts above cannot but be ascribed to be not only serious but ghastly in nature. While it is true that the social aberration which results from the offence is devastating by reason of the nature of the offence committed on a very young girl and the offenders cannot possibly obtain any support or mitigating effect from courts of law, we however, remind ourselves that the law of the land shall have to be administered in accordance with the principles of criminal justice.

16. At this juncture, another aspect of the matter ought to be noted, namely, an extra judicial confession by the accused Gurdeep Singh to one Jaspal Singh (P.W.7). The extra judicial confession runs as below :-

17. It is the evidence of Jaspal Singh (PW7) that he is driving taxi at Ropar and the accused was also driving the car of a Sant which was also being used as a taxi and used to park his car in the same parking space as used by Jaspal Singh. It is the categorical evidence of Jaspal Singh that on 12th December, 1989, i.e. after about 24 days of the incident the accused came to him and told him that he had committed rape on Manpreet Kaur and murdered her. The said evidence of Jaspal Singh was accepted by the learned Sessions Judge by reason of the fact that it was corroborated by the evidence of Rajinder Singh who had stated that he found the accused following the deceased in a drunken condition. But that finding was negatived by the High Court on the ground that extra judicial confession after long lapse of time is of no consequence. The High Court reminded itself that circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The circumstances must be of such a nature and should form a complete chain as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged.

18. There is no denial of the fact that extra judicial confession is admissible in evidence and the court in appropriate cases can rely thereon to the extent of even basing conviction of the accused. In a long catena of decisions of this Court, the settled position of the present day is that the extra judicial confession by itself if, otherwise in conformity with the law, can be treated as substantive evidence, and in appropriate cases it can be used to punish an offender. We, however, hasten to add here that this statement of law stands qualified to the extent that the Court should insist on some assuring material or circumstance to treat the same as piece of substantive evidence.

19. Having thus stated the law and general principles as to the extent of reliance to be placed on the circumstantial evidence, let us at this juncture turn on to the factual score in a little bit greater detail for the purposes of the assessment of the entire situation as to whether extra judicial confession noticed above can have any credence or evidentiary value. But before so doing certain basic features in the matter in issue ought to be noted. The features being :-

20. The facts above, have been very strongly criticised by the High Court and we find sufficient justification in that regard since normal reaction of a relative, would be to take the girl home or bring the father on to the sight immediately or even after going back to the deceased's house narrate the event of the girl being followed by a drunken man as also to go out with the father in search of the girl afterwards alongwith the deceased's father. It is difficult to treat it as a conduct in consonance with the normal human behaviour of a relative having seen the young girl of 10 years being followed by a drunken person. Human relationship cannot possibly have the same kind of reaction as has been depicted by Shri Rajinder Singh and it is on this score that the learned Advocate for the respondent herein also strongly commented upon the introduction of this particular witness in order to have a semblem of corroboration at best so far as the extra judicial confession is concerned.

21. The recovery of the body of the deceased by itself does not find any link or in any way connect the accused with the commission of the offence. Records depict that Sandeep being the younger brother was not examined and the learned Advocate in support of the appeal, also has no answer.

22. Turning attention on to the issue of probative value and total evidenciary impact in the matter, one cannot but return a verdict of non- credit worthiness of such a piece of circumstantial evidence; 24 long days have elapsed - and it is only then the investigating officer was able to locate a fellow Taxi driver, who appears to be the brother-in-law of the brother-in-law of father of the deceased. The evidence of Rajinder Singh thus becomes important - but is it worthy of such an importance - The Sessions Court has exaggerated its effect, whereas the High Court has completely over- turned it and described the same as a wholly unreliable and untrustworthy evidence.

23. We have herein before dealt with this particular piece of evidence - Can the reaction of a close relative be in the manner as Rajinder Singh had - The answer cannot but be in the negative - where is the anxiety to look for the girl - where is the desire to see that nothing untoward should happen - a minor girl of 10 years being followed by a drunken man and thereafter the girl does not come back home till such time he finishes the meal : Even thereafter not a word to the father but he quietly went back to his own village : It is not a trust-worthy evidence to rely on for corroboration to the extra judicial confession to complete the chain of circumstances. If the above pieces of evidence are kept aside - there is no other available evidence which can even remotely connect or point towards the guilt of the accused. There is no dispute that the deceased was raped and murdered but that would not be enough for the prosecution to rope in the accused without some such evidence depicting unmistakably to the guilt of the accused.

24. The next important aspect is the credibility of the person who spoke about the confession. He is a taxi driver and no part of evidence records that he has had a clout with the Police - It is not in evidence as to the period of friendship between accused and the witness - Indeed a very close friend may be taken into confidence and a confession effected - Commission of an offence of rape on a minor child and thereafter eliminating the victim girl from this world could not have been talked of or discussed with any or everybody so casually. There must be some cogent reasons for making a confession of this nature. The only reason available in evidence for affording an occasion to make the confession is that the accused used to drive the car of a Sant and as such, he used to park his car in the same parking area where the witness was also parking the car.

25. In our view this piece of evidence does not inspire confidence as to the credibility of the witness. The choice of a person to confess cannot be effected just like that.

26. In this context strong reliance was also placed by the High Court on the decision of this Court in the case of Makhan Singh v. State of Punjab, AIR 1988 Supreme Court 1705. This Court while dealing with more or less similar situation in paragraph 11 observed :-

27. The confessions in the normal course of events are made to avoid harassment by the police and to a person who could otherwise protect the accused against such a harassment. The records, in the present appeal, do not reflect any one of these aspects. As such it is difficult to point to the accused with the crime on the basis of the evidence available in this case. The incident did take place on 18th November, 1989 and the body was recovered on 19th November. The extra-judicial confession of the accused as regards his involvement in the crime is said to have been effected to Jaspal Singh PW7 on December 7, 1989 - thus a delay of more than 20 days without any explanation whatsoever. The delay in recording extra judicial confession before a person wholly unconnected with the police is always a matter of great suspect. In our view the High Court was right in rejecting the confessional statement.

28. In view of want of sufficient circumstances, we record our concurrence with the findings of the High Court that the charge against the respondent has not been proved beyond all reasonable doubt and his conviction therefore cannot be sustained. The appeal is hence dismissed.

Appeal dismissed.