# SARW AN SINGH v. THE STATE OF PUNJAB

- **Citation:** [1957] 1 S.C.R. 953
- **Court:** Supreme Court of India
- **Decided:** 1956-08-07
- **Case number:** Criminal Appeals Nos. 22 and 23 of 1957
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sarw-an-singh-v-the-state-of-punjab-1382
- **Pages:** 18

## Headnote

S.C.R.
SUPREME COURT REPORTS
SARW AN SINGH
v.
THE STATE OF PUNJAB
(with connected appeal)
[]AGANNADHADAS, B. P. SrNHA and
GA JENDRAGADKAR JJ.] .
953
Confession-Procedure-Duty
of the Magistt·ate-Time
to be
given to accused to decide to make the confession-Corroboration--
Approver-Reliability- Test- Corrobation-Code
of
Criminal
Proc:edure (AC! V of 1898), s. 164.
The appellants and G were convicted of the offence of murder
by the Sessions Court on the basis of the evidence of the approver,
which it considered reliable, and the confession made by the first
appellant which it found
to
be voluntary
and true. The High
Court held that the evidence of the approver as against G was very
discrepant and unreliable and set aside
his conviction but, nevertheless, confirmed the conviction of the appellants. The appellants
appealed to the Supreme Court. It was found ( 1) that the statement
originally made by the
approver as _against the second
appellant
was wholly inconsistent and irreconcilable with the evidence given
by
him in Court and that the High Court did not consider the
question as to whether the approver was a reliable witness at all,
(2) that the Magistrate who recorded the confession
did not fully
.comply with the procedure to be adopted to ensure that it was
voluntary, ( 3) that the prosecution story as deposed to by the
approver
was inconsistent
with
the material
statement
in the
confession, and ( 4) that the High Court while decid;ng whether
the confession was voluntary assumed that it was true
Held, that the conviction of the appellants must be set aside.
The appreciation of an t.pprover's c.idence has
to satisfy a
double test. It must show that he is a reliable witness
and that
his evidence receives sufficient corroboration.
The act of recording confessions under s. 164 of the Code of
Criminal Procedure is a solemn one and in discharging his
duties
under the said section the Magistrate must take care
to see
that
the requirements of sub-s. (3) of s. 164 are fully satisfied.
When an accused person is produced before the Magistrate by
the investigating officer, it is of the utmost importance
that the
mind of the accused person should be completely freed from any
possible influence of the police and he must be sent to jail custody
and given adequate time to consider whether he should make
a
confession at all. Ordinarily, he should be given at least 24 hours
to decide.
Even if a confession is voluntary, it must also be
established
that it is true and, for that purpose, it is necessary to examine it
19.57
Ajllil 10
1957
Sarwan Singh
v.
The State of
Punjab
Gajendragt1dkar J.
954
SUPREME COURT REPORTS
(1957]
and compare it with the rest of the prosecution evidence and the
probabilities of the case.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeals Nos. 22 and 23 of 1957.
Appeals by special leave from the judgment and
order dated August 7, 1956, of the Punjab High Court
at Chandigarh in Criminal Appeals Nos. 253 and 250
of 1956 and Murder Reference No. 38 of 1956 arising out
of the judgment and order dated May 21, 1956, of the
Court of Additional Sessions Judge at Ludhiana in
Trial No. 17 of 1956 and Case No. 9 of 1956.
Cyan Chand Mathur, for the appellant in Criminal
Appeal No. 22 of 1957.
R. L. Kohli, for the appellant in Criminal Appeal
No. 23 of 1957.
Gopal Singh and T. M. Sen, for the respondent in
both the appeals.
1957.
April
10. The Judgment of the Court was
delivered by
GAJENDRAGADKAR
J.-Harbans
Singh,
Gurdial
Singh and Sarwan Singh were charged in the court of the
learned Additional Sessions
Judge at Ludhiana with
having committed an offence
of murder punishable
under s. 302 of the Indian Penal Code. The case
against them was that they, along with Banta Singh,
the approver, had intentionally caused the death of
Gurdev Singh by inflicting injuries on his person with
kirpan, toki and dang on November 23, 1955, within
the limits of the village Sohian, police station Jagraon.
The learned trial judge held that the charge framed

## Text

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S.C.R.
SUPREME COURT REPORTS
SARW AN SINGH
v.
THE STATE OF PUNJAB
(with connected appeal)
[]AGANNADHADAS, B. P. SrNHA and
GA JENDRAGADKAR JJ.] .
953
Confession-Procedure-Duty
of the Magistt·ate-Time
to be
given to accused to decide to make the confession-Corroboration--
Approver-Reliability- Test- Corrobation-Code
of
Criminal
Proc:edure (AC! V of 1898), s. 164.
The appellants and G were convicted of the offence of murder
by the Sessions Court on the basis of the evidence of the approver,
which it considered reliable, and the confession made by the first
appellant which it found
to
be voluntary
and true. The High
Court held that the evidence of the approver as against G was very
discrepant and unreliable and set aside
his conviction but, nevertheless, confirmed the conviction of the appellants. The appellants
appealed to the Supreme Court. It was found ( 1) that the statement
originally made by the
approver as _against the second
appellant
was wholly inconsistent and irreconcilable with the evidence given
by
him in Court and that the High Court did not consider the
question as to whether the approver was a reliable witness at all,
(2) that the Magistrate who recorded the confession
did not fully
.comply with the procedure to be adopted to ensure that it was
voluntary, ( 3) that the prosecution story as deposed to by the
approver
was inconsistent
with
the material
statement
in the
confession, and ( 4) that the High Court while decid;ng whether
the confession was voluntary assumed that it was true
Held, that the conviction of the appellants must be set aside.
The appreciation of an t.pprover's c.idence has
to satisfy a
double test. It must show that he is a reliable witness
and that
his evidence receives sufficient corroboration.
The act of recording confessions under s. 164 of the Code of
Criminal Procedure is a solemn one and in discharging his
duties
under the said section the Magistrate must take care
to see
that
the requirements of sub-s. (3) of s. 164 are fully satisfied.
When an accused person is produced before the Magistrate by
the investigating officer, it is of the utmost importance
that the
mind of the accused person should be completely freed from any
possible influence of the police and he must be sent to jail custody
and given adequate time to consider whether he should make
a
confession at all. Ordinarily, he should be given at least 24 hours
to decide.
Even if a confession is voluntary, it must also be
established
that it is true and, for that purpose, it is necessary to examine it
19.57
Ajllil 10
1957
Sarwan Singh
v.
The State of
Punjab
Gajendragt1dkar J.
954
SUPREME COURT REPORTS
(1957]
and compare it with the rest of the prosecution evidence and the
probabilities of the case.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeals Nos. 22 and 23 of 1957.
Appeals by special leave from the judgment and
order dated August 7, 1956, of the Punjab High Court
at Chandigarh in Criminal Appeals Nos. 253 and 250
of 1956 and Murder Reference No. 38 of 1956 arising out
of the judgment and order dated May 21, 1956, of the
Court of Additional Sessions Judge at Ludhiana in
Trial No. 17 of 1956 and Case No. 9 of 1956.
Cyan Chand Mathur, for the appellant in Criminal
Appeal No. 22 of 1957.
R. L. Kohli, for the appellant in Criminal Appeal
No. 23 of 1957.
Gopal Singh and T. M. Sen, for the respondent in
both the appeals.
1957.
April
10. The Judgment of the Court was
delivered by
GAJENDRAGADKAR
J.-Harbans
Singh,
Gurdial
Singh and Sarwan Singh were charged in the court of the
learned Additional Sessions
Judge at Ludhiana with
having committed an offence
of murder punishable
under s. 302 of the Indian Penal Code. The case
against them was that they, along with Banta Singh,
the approver, had intentionally caused the death of
Gurdev Singh by inflicting injuries on his person with
kirpan, toki and dang on November 23, 1955, within
the limits of the village Sohian, police station Jagraon.
The learned trial judge held that the charge framed
against all the three accused had been proved beyond a
reasonable doubt. That is why he convicted them of
the offence charged and sentenced each one of them to
death. On appeal to the High Court of Punjab, the
order
of conviction
and sentence imposed against
Harbans
Smgh and Sarwan Singh was
confirmed
whereas the order of conviction and sentence against
Gurdial Singh was set aside and he was ordered to be
acquitted and discharged.
Accused No. 1,
Harbans
-
S.C.R.
SUPREME COURT REPORTS
955
Singh, and accused ;No. 3, Sarwan Singh, have come to
this Court in appeal by special leave.
It would be convenient to state the prosecution case
very briefly at the outset. Gurdev Singh, the victim
of the assault, was the brother of accused No.
1. It
appears that the father of the two brothers had left the
village some
years ago and is apparently no longer
alive. Harbans Singh was a shirker and a waster and
that made Gurdev Singh impatient. When
Gurdev
Singh tried to improve Harbans Singh, Harbans Singh.
resented Gurdev Singh's efforts and his irritation and
annoyance had reached such 'a stage and extent that
he began to plan his murder.
According to the story
of the
prosecution, Harbans
Singh got in touch with
his
friends
Sarwan Singh and
Gurdial
Singh and
requested· them to assist him in his plan to get rid of
his brother.
It appears that Gurdial Singh himself was
on inimical terms with Gurdev Singh because he was
angry with Gurdev Singh . for having cut jokes with his
sister.
A few
days
before
the
commission of the
offence, Harbans Singh and Sarwan Singh, were sitting
on a canal bank near their village enjoying their drink
when Banta Singh joined them. He was also asked to
partake of the liquor and was told about the plan to
murder Gurdev Singh. A few days later there was
another meeting between these three men and it was
agreed that an attempt should be made to procure
arms for the purpose of carrying out the plan. Rakha
was accordingly approached and as a result of
the
negotiations he ·sold a country-made pistol and a cartridge for Rs. 40 to Sarwan Singh.
Rakha
was
also
requested
to join
the conspiracy. He was
however
unwilling to respond and though he
did not openly say
'no' to the proposal, at the material time he refused to
join the conspirators.
On the day of the offence itself,
Sarwan. Singh, Gurdial Singh and Banta Singh
went
by a bus together and got down near the road which
leads to the village Sohian.
Then
they proceeded on
foot until they met Harbans Singh near the canal
minor.
Harbans Singh then advised his co-conspirators
to hide themselves in the bushes.
He then fetched a
bottle of liquor and all the four drank from
it. This
1957
Sarwan Singh
v.
The State of
Punjab
Gajendragadkar J.
1957
&vwan Singh
v.
Tire State of
Punjab
Gafend,.gadkar].
956
SUPREME COURT REPORTS
(19571
took them to sunset time, when Harbans Singh left the
place and promised his
friends that he would send
his brother to the place where they would lie concealed.
He also told them that he would give a signal as soon
as his brother would approach
the place
of their concealment by clapping his hands.
In accordance
with
this plan Harbans Singh persuaded his brother to go
ahead. Sarwan Singh then coughed and this raised
an apprehension in the mind of Gurdev Singh that
some people may be lying in wait for him. So he
called out to his brother Harbans Singh and said that
he suspected
that
there
were
some
people there.
Harbans Singh assured him that he would soon
join.
Meanwhile,
according
to plan, the three assailants
emerged from their place of concealment and attacked
Gurdev Singh.
Harbans Singh also arrived on the
scene and joined them in the ·assault. The prosecution
case is that Harbans Singh was armed with a kirpan,
Gurdial Singh with a lathi, the approver Banta Singh
with a toki and Sarwan
Singh used a kirpan. The
attack
was
undoubtedly brutal and callous
and it
resulted in
as many
as 69 incised wounds
and two
contused injuries which had been
caused with a blunt
weapon.
Having
asaulted
Gurdev Singh
in this
brutal manner _his assailants ran away.
Harbans Singh returned to his village and raised a
hue and cry. He complained that his brother had been
carried away by a number of persons and he pretended
that his
brother's
assailants
were
Darshan
Singh,
Jagat Singh,
Gurnam Singh
and Banta Singh of the
village
Pana. The villagers,
however,
found
that
Harhans Singh was not keen on joining them
in
rendering help to the victim or in
pursuing his
assailants.
Finally, however,
he was persuaded
to
accompany
the villagers and the
villagers in the
company of Harbans Singh
reached
the spot where
Gurdev Singh's body was found in a pool .of blood.
Thereafter Harbans Singh went to the police station
and made a report of the occurrence at.about 10-30 p.m.
He alleged in his report· that his brother had
been
murdered by the aforesaid four persons of the village of
Pona. Purporting to act on
this report, the police
-
S.C.R.
SUPREME COURT REPORTS
957
reached the spot in the early hours· of the next morning
and so the investigation commenced.
It is clear that the police had their own doubts about
the truth of the report made by Harbans Singh from
the start and
they suspected that · it
was
Harbans
Singh and his friends who were concerned· with the
commission of this foul offence. Sarwan Singh, Gurdial
Singh and Banta Singh were arrested on November 25
and Harbans Singh on November 26. The investigating officer recovered from the person of Sarwan Singh
a blood-stained shirt and chadar
and obtained
from
Sarwan Singh's house a pistol and an empty cartridge
on information given
by him.
From die person
of
Gurdial Singh a
blood-stained turban
w41s recovered
and the information given by him led to the discovery
of a stick or lathi.
This lathi
was
blood-stained.
From Banta Singh's person a blood-stained chadar was
recovered and the information given by him led to the
discovery of a kirpan and a toki from a well in which
they were thrown after the commission of the offence.
The proseClition also alleges that, on the
information
given by
Harbans Singh, some blood-stained
clothes
were
recovered
from Gurdev Kaur sister of Gurdial
Singh. It appears
that, on November 30,
Sarwan
Singh offered to make a confessional statement and· the
confession was in fact recorded on the same day. On
December 2, Banta Singh was given pardon and made
an approver.
That in brief is the prosecution case.
All the three accused deny
any connection with the
commission of the offence. The learned Sessions Judge
held that Banta Singh was a reliable witness. . Since ·
. Banta Singh is, however, an approver the learned Judge ·
considered whether
his evidence
had received
the
. reqms1te
corroboration
in
material .. · particulars
and
. he held .that it' did. The learned Jμdge also found that
the confession n1ade .· hy Sarw:i.n · Singh. was· voluntary
. and true and irt:his Opi~ion the evidence . of. Rakha and
the other circumstantial evidence with regard .· to
the
blood-stained· Clothes of the respective aq:used persons
and .. the recovery
of
the weapons
afforded · sufficient
corroboration in material ·· particulars. That is how he
reached the ·conclusion· that the charge
of murder has
1957
Sarwan Singh
v.
The State •f
Putifah
Gajendragadkar J
1957
Sarwan Singh
v.
Tiu State of
Pur/jab
Gqjmdragadkar J.
958
SUPREME COURT REPORTS
r r957J
been proved against all the three accused.
On appeal
it has been held by the learned Judges of the
High
Court
of Punjab that the
evidence given
by
the
approver, Banta Singh, against accused Gurdial Singh
was very discrepant and therefore unreliable and so
they
found
that the case against Gurdial Singh had
not been proved beyond a reasonable
doubt.
In the
result Gur<lial Singh was acquitted; but the view taken
by the learned Judges in respect of
the
prosecuaon
case
against Harbans Singh
and Sarwan Singh was
that the approver's evidence supplied the basis for the
prosecution
case
against
them and since
it
w•s
corroborated •by
circumstantial
evidence
to
which
reference has already been made and by the confession
of Sarwan Singh, there was no difficulty in confirming
the order of conviction and
sentence passed
against
these two accused
persons.
It is
this
view which is
challenged before us
by the two appellants
in the
present appeals.
Since the present appeals have been filed by special
leave under Art. 136
of the
Constitution, it would
normally not be open to the appellants to raise
questions of fact before us.
Prima facie
the
orders
of
conviction and sentence passed
against the appellants
are based on concunent findings of fact and we would
be slow to interfere with
such findings unless
we are
satisfied that the said findings are vitiated by errors of
law or that
the
conclusions
reached by the courts
below are
so patently opposed
to well
established
principles
of
judicial
approach, that
they
can be
characterised as wholly unjustified
and even perverse.
On behalf of Harbans
Singh,
it has been
urged
before us by Mr. Kohli that the judgment of the High
Court of Punjab suffers from a serious infirmity in that,
in dealing. with the evidence of
the
approver, the
learned Judges do not appear to have addressed themselves to the
preliminary question as to
whether the
approver is a reliable witness
or not.
The problem
posed by the evidence given bv an approver has been
considered by the· Privy Council and courts in India on
several occasiom.
It is
hardly necessary
to deal at
length with the true legal position in this matter. An
accomplice is
undoubtedly a competent witness under
•
S.C.R.
SUPREME COURT REPORTS
959
the· Indian Evidence Act. There can be, however, no
doubt that the very fact that he has participated in
the commission of the offence introduces a serious stain
in his evidence and courts are naturally reluctant to
act on such tainted evidence unless it is corroborated in
material
particulars
by
other
independent
evidence.
It would not be right to expect that such independent
corroboration should cover the whole of the prosecution
story or even all the material particulars. If such
a
view is adopted it would render the evidence of the
accomplice wholly superfluous.
On the other hand, ' it
would not be safe to act upon such evidence merely
because
it is corroborated
in minor particulars or
incidental details because, in such a case, corroboration
does not afford the necessary
assurance that the main
story disclosed by the approver can be reasonably and
safely accepted as true. But it must never be forgotten
that before the court reaches the stage of considering
the question of
corroboration
and
its
adequacy
or
otherwise,
the first
initial
and essential
question to
consider is whether even as an accomplice the approver
is a reliable witness. If the answer to this question is
against the approver then there is an end of the matter,
and no question as to whether his evidence is corroborated or not falls to be considered. In other words,
the appreciation of an approver's evidence
has to
.satisfy a double
test.
His evidence must show that he
is a reliable witness and that is a test which is common
to all witnesses. If this test is satisfied the second test
which still remains to be applied is that the approver's
evidence
must receive
sufficient
corroboration.
This
test is special to the cases of weak or tainted evidence
like that of the approver.
Mr. Kohli's contention
is
that since the learned Judges
of the High Court
of
Punjab
have failed
to address
themselves
to
this
initial question, their
appreciation
of the approver's
·evidence
suffers
from a serious infirmity.
In
our
opm10n,
this contention is well-founded.
\Ve
hayc
carefully
read the judgment delivered by the High
Court but we find no indication in the whole of the
judgment
that
the learned
Judges
considered
the
character of the approver's
evidence
and reached· the
1957
Sarwan Singh
v.
The Stale of
Punjab
Gajendragadkar J.
1957
Sarwan Singh
v.
Tk Stat, of
Pu,Yab
Gajendr agad!uu :J.
960
SUPREME COURT REPORTS
[19571
conclusion that it was the evidence given by a reliable
witness.
The only statement which we find
m
the
judgment dealing with this topic
is that
"since
the
main evidence in the case consists of the testimony of
the approver it is necessary to consider the case of each
appellant
individually".
With
respect, this observation
is open to the
criticism
which
has been
made
against it by Mr. Kohli.
The argument that the character of the approver's
evidence has not been considered by the High Court cannot be characterised as merely academic or theoretical
in the present case because, as we will presently point
out, the evidence of
the approver
is so
thoroughly
discrepant that it would be
difficult
to
resist
the
conclusion that the approver in the present
case
is a
wholly unreliable
witness.
Indeed it may be legitimate
to point out that the learned Judges of the High Court
have themselves criticised the evidence of the
approver
in dealing with the prosecution case
against
Gurdi~I
Singh and have ultimately found
that the account
given by the approver is unreliable and, though there
was circumstantial
evidence which raised an amount
of suspicion against Gurdial Singh that would not be
enough to sustain his conviction. It seems
to us
that
if it was found · that the approver's account against
one of the accused persons was wholly discrepant,
this
finding itself should inevitably have led
the court to
scrutinise his evidence
in respect
of the other accused
persons with greater caution.
Besides, it is
somewhat
unfortunate that the attention
of
the
learned
Judges
of the High Court was presumably not drawn
to the
still more serious discrepancies in the evidence of the
approver in regard
to
die part assigned
to Harbans
Singh in the commission of the offence. In the evidence
given by the approver
before the trial court,
he has
definitely and unequivocally implicated
Harbans Singh
in the commission of the offence. It has been brought
out in
the cross-examination
that in
the very
first
statement made by the apprm""r before the investigating officer on November 25
he
had made statements
about Harbans Singh
which are
wholly inconsistent
with
the subsequent story. In this statement.
the
S.C.R.
SUPREME COURT REPORTS
961
approver had definitely stated that
only
the three
of
them were concerned with the commission of the offence.
himself, Sarwan Singh and Gurdial Singh. He had
also stated· clearlv in the said statement that Harbans
Singh did not -join in murdering Gurdev Singh. It is
remarkable that in regard to almost every
material
particular about the part played by Harbans Singh in
the commission
of the offence the story disclosed by
the approver at the trial is inconsistent with his first
statement before the police.
In his
statement
at the
trial, the approver assigns Gunlial Singh the possession
of lathi
and according
to him Gurdial Singh
subsequently took up the kirpan from Sarwan Singh and
murdered Gurdev Singh after which
Harbans Singh
himself gave a blow with it at the neck of the victim. ln
his statement before the police, the approver had said
that Gurdial Singh had carried a kirpan. We are deliberately not referring to the several other minor discrepancies which have been brought out in the evidence of
the approver in his cross-examination.
In our opinion,
the
discrepancies brought out in
the evidence
of
the approver qua the prosecution case against
Gurdial
Singh coupled with the more serious discrepancies
in
his evidence
in the prosecution case against
Harbans
Singh lead to only one conclusion and that is that the
approver has no regard for truth.
It is
true
that in
his secornl statement recorded on November
29,
the
approver substantially changed
his first
story
and
involved Harbans Singh
in the
comm1ss1011
of the
offence, and in that sense, his second statement can be
saitl to be consistent
with his evidence at
the trial.
But we cannot lose sight of the fact that, within three
days
after the recording of his second
statement,
he
was granted pardon and his statement
was recorded
under s. 164 of the Code of Criminal Procedure on the
same day.
Therefore it would be legitimate for
the
accused to contend that· the additions made by
the
approver in his
subsequent statement may be
the
result of promise held out to him that he would be
granted
pardon.
Apart from
this
consideration,
in
view of the positive statements
made b)·
the
approver
in his first recorded statement,
there can be no doubt
1957
Sarwan Singh
v.
The State ~f
Punjab
Gajendragadkar ]-
1957
Sarwan Singh
v.
The State of
Punjab
Gajendragadkar
%2
SUPREME COURT REPORTS
[1957 J
that the subsequent allegations against Harbans Singh
are improvements and are the result of his decision
to
involve Harbans Singh in the commission of the offence.
If this was a case where the statements
made
by the
approver on subsequent occasions merely
added
details
which were not included in the first statement, it
may
perhaps have been a different matter. It is true that
omissions have not always the same significance as
contradictions ; but
in the
present case it is patent
that the two sets of statements are wholly
inconsistent
and irreconcilable and that obviously leads
to a very
serious infirmity
in
the character of the witness. It
is indeed to be regretted that the attention of the
learned Judges of the High Court was not drawn to
this aspect of the matter and they were not invited to
consider
the initial question
as
to
whether
the
approver, Banta
Singh,
was a reliable witness at
all.
Every person
who is a competent
witness
is not
a
reliable witness and the test
of reliability
has to be
satisfied by an approver all the more before the question ·of corroboration of his evidence is
considered
by
criminal courts.
If the evidence of the approver is discarded as
being
unreliable
the
case
against Harbans Singh
must
inevitably fail.
No doubt there are some
circumstances against him on
which
the prosecution
relies.
The evidence of Rakha
(P.W.8)
would
show
that
Harbans
Singh and the other accused
persons
were
concerned with the purchase of a pistol from
Rakha.
Incidentally this pistol has
not been
used
m
the
commission
of the offence
at all
and that,
in
the
circumstances,
it
is
difficult
to explain. However,
the purchase of a pistol from Rakha may merely raise
a suspicion
against
Harbans
Singh
but suspicions,
however
strong, cannot take
the
place of
nroof.
Harbans Singh had injuries on his person
and the
conduct of Harbans Singh soon after the
commission
of the offence
was very suspicious. That again
may
raise a suspmon against Harbans Singh but without the
basis of the approver's evidence the suspicious
circumstances can play · no effective part in a criminal trial.
The discovery of clothes alleged to have been made
at
S.C.R.
SUPREME COURT REPORTS
%3
the place of Gurdev Kaur cannot be
pressed
into
service against Harbans Singh
because Gurdev
Kaur
herself has not been examined and the importance
of
the recovery of a kirpan and a red scabbard from
the
spot cannot obviously be exaggerated. In our opinion,
there is no
doubt whatever
that,
if the approver's
evidence is
rejected as
unreliable, the other evidence
on which the prosecution relied against Harbans Singh
cannot possibly sustain
his conviction of the offence
of murder. We must, therefore, hold that· the finding
of the learned
Judges
of
the High Court that the
offence of murder
has been proved against
Harhans
Singh
is vitiated by a serious infirmity to which we
have just
referred
and
must
be reversed. If the
learned Judges have failed
to address themselves
to
the initial
question of law before dealing
with
the
merits
of the approver and if, in dealing with his
evidence,
they" have
failed
to take into
account the
glaring and obvious inconsistencies
in
the
account
given by the approver, it is open
to the appellant to
challenge
the
validity
of their conclusion.
In
the
result, the appeal preferred by Harbans Singh must be
allowed, the order of conviction and sentence
passed
against him must be set aside and he must be acquitted
and discharged.
That takes us to the case of accused No. 3, Sarwan
Singh. We have already
pointed out that the order
of conviction passed
against Sa}wan Singh is in the
words of the judgment of the High Court based on the
fact that "there is the evidence of the approver and
it is corroborated
in
every
particular
by his
own
confessional
statement".
Besides,
there
is
other
circumstantial evidence to which reference
has already
been made in narrating the prosecution story
at
the
beginning of this judgment.
It would
at once
be
noticed
that, if we come to the conclusion
that the
approver is an unreliable
witness, the basis
of
the
evidence of the approver on which the learned
Judges
of the High Court proceeded even while dealing
with
the case against Sarwan Singh
has been shaken. If,
in our opinion, the approver is unworthy of credit,
then it would not . be possible to consider the question
1957
Sarwan Singh
v.
The State of
Pu~iab
Gaje11dragadkar J.
1957
S.rwan Singh
v.
The State of
Punjall
Gajtndragadkar ].
%4
SUPREME COURT REPORTS
[1957]
of the corroboration that his evidence
receives
from
the
confessional
statement
made
by
Sarwan Singh
himself.
It is, however, true that Sarwan Singh has
made a confession and in law it would be open to the
court
to convict him on this confession itself
though
he
has
retracted
his
confession at a
later
stage.
Nevertheless usually courts require some corroboration
to the confessional
statement
before
convicting
an
accused
person
on
such a statement.
What amount
of corroboration would be necessary
in
such a
case
would always be a question of fact to be determined
in the light of the circumstances of each case. In the
present
case, the learned Sessions Judge has
considered
the question
about the
voluntary character of
the
confession made
by Sarwan Singh
and has found in
favour of the prosecution. The judgment of the High
Court shows that the
learned Judges agreed with the
view of the learned trial Judge mainly
because
the
evidence of the Magistrate who recorded the confession
appeare<l
to the learned Judges
to show that
the
confession was voluntary.
It is this view
which is
seriously challenged before m hy Mr. Mathur on behalf
of Sarwan Singh.
Prima facie
whether or not
the
confession is voluntary would
be
a question of fact
and we would be reluctant to interfere with a finding
on such a question of fact unless we are satisfied that
the impugned finding has been reached without applying tl1e true and relevant legal
tests
in the
matter.
As in the case of the evidence given hy the approver,
so too unfortunately in the case of the confession
of
Sarwan Singh the attention of
the
learned
Judges
below does not appear to have been drawn
to
some
salient
and
grave
features
which have a material
bearing on the question about the
voluntary
character
of the
confession.
Sarwan
Singh was
arrested
on
November 25. His clothes were found
blood-stained
and he is alleged to have been inclined to help the
prosecution by making tlie statement which led
to the
discovery of incriminating articles. All
this
happened
on the 25th itself and yet,
without any
ostensible
explanation or justification, Sarwan Singh was
kept in
police custody until November 30.
That
is
one
fact
S.C.R.
SUPREME COURT REPORTS
965
which is to be borne in mind in dealing with · the
voluntary character of his confession.
What happened
on November 30 is still more significant. On this day
he was sent to the Magistrate to record his confessional
statement.
The . evidence of th<; Magistrate Mr. Grover
shows that the accused was produced
before him
at
about 2-30 p. m.
He was given about half-an-hour to
think about the statement which he was going to make
and soon thereafter
the
confessional
statement was
recorded. It is true
that the Magistrate did put to the
accused
the questions
prescribed
by the circulars
issued by the High Court of Punjab. EYen so, when
the learned Magistrate was asked why he did not give
more time to the accused before his confessional statement was
recorded,
his reply was frank
and honest.
He said that the accused seemed to insist upon making
a statement
straightaway.
The
Police Sub-Inspector
who had taken the accused to
the Magistrate . was
apparently standing
in
the verandah outside ii! the
Magistrate's office. The doors
of the office wc::re closed
but the fact still · remains that the Sub-Inspector was
standing outside.
The evidence of the Magistrate also
shows that, soon after the statement was finished, the
Sub-Inspector
went
to
the
Magistrate's room again.
The person of the accused
showed some injuries and
yet the learned Magistrate
did
not enquire how
the
accused
came
to
be
injured.
It
is in the light of
these circumstances
that
the
question falls
to
be
considered whether the confession made by the accused
can be regarded as voluntary. It is hardly necessary to
emphasize that the act of recording confessions under
s. 164 of the Code of Criminal Procedure is a very solemn
act and, in discharging his duties under the said section,
the Magistrate must take care to see that the requirements of sub-s. (3) of s. 164 are fully satisfied. It would of
course be necessary in every case to put the questions
prescribed by the High Court circulars but the questions
intended to be put under sub-s. ( 3) of s. 164 should not
be allowed to become a matter of a mere mechanical
enquiry .. No element of casualness should be allowed
to creep in and the Magistrate should be fully satisfied .
that the confessional . statement
which
the
accused
1957
Sarwan Singh
v.
TM State of
Purifab
Gajendragadkar J.
1957
Sarwnn Singh
v.
The Stalt of
Punjab
Gajo1dragadkar ].
966
SUPREME COURT REPORTS
119571
wants to make is in fact
and in
substance
voluntary.
Incidentally, we may invite the attention
of
the High
Court of Punjab to the fact that the circulars issued hy
the High Court of Punjab in the matter of the procedure
to be followed, and questions to be put to the accused, by
!>.fagistrates recording confessions
under s. 164
may
he
revised and suitable amendments and additions made in
the said circulars in the light of similar circulars issued by
the High Courts of Uttar Pradesh, Bombav and Madras.
The whole object
of putting questions
to an accused
person \Vho offers to confess
is to
obtain an
assurance
of the fact that
the confessoion
is
not caused by any
inducement. threat or promise having reference to
the
charge against
the
accused
pe«son
as mentioned
111
s. 24 of the Indian Evidence Act.
There can be
:io
doubt that. when an accused person is produced
before
the Magistrate by the investigating
officer,
it
1s
of
utmost importance that the mind of the accused person
should be completely freed from
any possible influence
of the police
and
the effective way of securing such
freedom from fear to the accused person is to send him
to jail custody and give him adequate time to consider
whether he should make a confession at all.
It would
naturally
be difficult to lay down any hard and fast
rule
as
to
the time
which should be allowed
to an
accused person in any given
case.
However,
speaking
generally. it
would, we think,
be reasonable
to insist
upon giving an accused
person at least 24
hours
to
decide whether
or not
he should
make a confession.
\Vhere there may be reason to suspect that
the accused
has been persuaded
or
coerced
to make a confession,
even longer period may have to be given to him before
his statement
is
recorded.
In our
opinion,
in
the
circumstances of this case it is impossible to accept the
view that enough time was given to the accused
to
think over the
m2tter.
Indeed, any Magistrate
with
enough
criminal experience
would
have immediately
decided to give longer time to Sarwan Singh in the
present case for the obvious reason that Sarwan Singh
appeared
to the learned
Magistrate to be keen on
making ' a
confession
straightaway.
The
learned
Magistrate
himself has fairly
stated
that
he
would
S:C.R.
SUPREME COURT REPORTS
967
have given him longer time but for his insistence
to make a confession
without delay. This insistence
on the part of Sarwan Singh to make a con£ession
immediately should have put the learned Magistrate
on his guard because it obviously bore
traces of
police
pressure or
inducement.
Unfortunately,
the
effect of the failure of the learned Magimate to
grant enough time to the ac('.used to consider the
matter has not been considered by the learned Sessions
Judge and has been wholly ignored by the· learned
Judges of the
High Court. Besides, in neither court
below has any attention been paid to the fact that
Sarwan Singh appeared to
have been kept in police
custody without any justification
between November
26 and November 30. We have carefully
c~nsidered
all the relevant facts beaming on this questioh and we
see no escape from the conclusion that the failure of
the learned Judges of the High Court to take into
account these material facts has introdu::ed
a serious
legal infirmity in their conclusion that the confession
made by Sarwan Singh is valuntary. That is why we
think we must reverse this conclusion.
There is, besides, another fact which is equally fatal
to the prosecution case. Even if the confession is held
to he voluntary, it must also be established that the
confession is true and for the purpose of dealing with
thi~ question it would be necessary to examine the
confession and comRare it with the rest of the prosecution evidence and the probabilities in the case. In ow·
opinion, some material points mentioned in the confessional statement are not shown to be true. Sarwan
Singh says that when Gurdev Singh was assaulted hr:
and his brother Harbans Singh were walking together.
On the
other hand
the prosecution story is that
Harbans Singh had first contacted his accomplices and
had told them
that he would
send Gurdey Singh
towards the spot where the accomplices would lie in
wait for him. The story further is that when Gurdev
Singh suspected
that there were some people near
about he shouted to
Harbans
Singh and before
Harbans Singh came on the spot assault and begun.
This part of the prosecution story as deposed to by the
2-61 S. C. India/59
1957
Sarwan Singh
Y.
The Stolt of
Pu,galt
Gajendrazadkar
1957
Sarrvan Singh
v.
TJw. Jtat~ o.f
Pur.ja/;
Gq,erulragadkar J.
968
SUPREME COURT REPORTS
(1957]
approver 1s
inconsistent
with
the marerial statement
in the
wnfession.
According to the confession, Dial
Singh gave a Dang blow to Gurdev Singh on the head
from the front. This statement is not borne out by
medical evidence. There does not appear to be
a
corresponding
injury on the
head of
the victim.
Sarwan Singh says that he took the, kirpan which was
first used by Harbans Singh and gave
two blows to
Gurdev Singh on his thigh. This statement again is
not
borne out by
the medical evidence about
the
injuries on the body of the victim.
Similarly,
the
statement of Sarwan
Singh that the handle of the
kirpan vi·as broken and he got
his finger injured with
it is not easily reconcilable with the medical evidence
about the injury itself. Unfortunately these disn-cpancies between the confessional statement
and the main
prosecution evidence given by the approver have not
been noticed by the learned
Judges of the High Court.
Indeed, after having found
that
the confession
was
voluntary it appears to have been assumed
by
the
learned Judges that the confession was true and
that,
;n our opinion, is another infirmity in the conclusion
ceached by the High Court.
That leaves the other
circumstances
which
have
been proved against Sarwan Singh to be considered.
There were injuries on his person. They are thus
described by the doctor:-
"l. A
superficial
incised
wound
with a
scab,
the face, just above the
3/S x 1/12 on the left side of
left moustache.
2. An abrasion
outer surface of the
3. An
abrasion
outer
surface
of
finger.
with a scape
1/2
1/4 on the
middle digit of the left ring linger.
with a scab 1/8 x 1/8
on the
the
middle digit of the left little
4. An abrasion with a scab 1/4" x
1/4" on the
outer surface of the terminal inter-digital joint of the
left little finger.
All the injuries were simple
and of
about
two
days duration. Injury No. 1 was caused by shorpedged weapon and the rest by some blunt weapon."
S.C.R.
SUPREME COURT REPORTS
969
In
his cross-examination
Dr.
Singh
admitted
that
injury No.
1 could have been caused by razor blade as
suggested b;' the counsel for Sarwan Singh and injuries
Nos. 2 to 4 could h:ive been caused by rubbing against
some
hard substance. In other words,
on medical
evidence it is difficult to reject the explanation of the
accused
as
unreasonable
or palpably untrue. Then
we have the evidence of biood-stains on 1:1e shirt and
chadar w:orn
by Sarwan Singh. If the
expiar:a~ion
given by Sarwan Singh about his injuries
is not
unreasonable
i:hen the
presence of blood-stains on his
dress cannot be seriously pressed
agaiD.st
him. The
evidence of Rakha about the negotiations and purchase
of a pistol from him and about the part of Sarwan
Singh in · that transaction no doubt may suggest that
Sarwan Singh was a~sociated with the criminals but
that is very far from pro•1ing the charge of murder
against
him.
Incidentally, as
we
have
already
observed, if the pistol was purchased it is difficult to
understand whv it was not used. Then we have the
evidence of the . shoes which were found on the spot.
The evidence of the shoe-maker Santa Singh suggests
that he had identified the pair of shoes as belonging to
Sarwan Singh that very night. According to him, he
has been manufacturing shoes like this pair though not
on a large scale. Unfortunately, in his examination
under s. 342 of the Code, no question had \:.een put to
Sarwan Singh
about these shoes.
It is not
unlikely
that
Sarwan
Singh may have offered to demonstrate
that the shoes
did not fit
in with his feet. In any
event, failure to give him an opportunity to explain
the circumstances by putting an
appropriate question
to him
undtr s.
342 justifies his argument
that this
circumstance should not be used against him. Besides,
like the evidence given by
Rakha, the identity of the
shoes would also be a very minor circumstance in relation to the charge of murder for which Sarwan S_ingh is
being
tried.
The
result
is that,
if the approver's
evidence is discarded
as unworthy
of credit and his
own retracted confession is excluded from
consideration as not being voluntary or true, whatever circumstantial evidence remains
is obviously
insufficient to
1957
Sarwan Sir.gh
v.
Tht Stat. oj
Punjab
Gajendragailkar J.
970
SUPREME COURT REPORTS
[1957]
1957
Sanvan Singh
bring home to Sarwan Singh the charge framed against
him. If that he the true position, we must hold that
the learned Judges of the High Court were in error in
convicting Sarwan Singh of the offence of murder. It
is no doubt a matter of regret that a foul could-blooded
and cruel
murder
like the
present
should
go
v.
The State of
Pu'lfa:b
1957
J. unpunished. It may be as Mr. Gopal Singh strenuous! y urged before us that there is an element of truth
in the prosecution
story
against both the appellants.
Mr. Gopal Singh contended that, considered as a whole.
the prosecution story may be true ; hut between 'may
be true' and 'must be true' there is inevitably a long
distance to travel and the whole of this distance must
be covered by
legal,
reliable
and unimpeachable
evidence. We have carefully considered all the arguments which Mr. Gopal Singh urged before us ; but we
do not think it
would be possible to regard the
approver as a reliable witness or to hold that the
confession of Sarwan Singh is voluntary or true.
In
the result, the appeal preferred by Sarwan Singh must
be allowed, the order of conviction and sentence passed
against him must be set aside and he must be acquitted and discharged.
Appeals allowed.
THE COLLECTOR OF MALABAR
v.
FRIMAL EBRAHIM HAJEE
(S. R. DAS C.J., JAFER IMAM, s. K. DAS,
GoVINDA
MENON and A. K.