# SHANKARIA v. RAJASTHAN - **Citation:** [1978] 3 S.C.R. 736 - **Court:** Supreme Court of India - **Decided:** 1978-04-26 - **Case number:** Criminal Appeal No. 561 of 1976 - **Bench:** R. S. Sarkaria, N. L. Untwalia, P. S. Kailasam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shankaria-v-rajasthan-7423 - **Pages:** 25 ## Headnote Proof of guilt-Tests to be applied by the Courts in a capital case when relying solely on confessional statement of the accused-Identification of Prisoners Act, Sections 4 and 5-0htaining of thumb impression in the presence of Magistrate, whether necessary-Track evidence is a relevant circumstance which can be taken into account along with other evidence. The appellant was tried, convicted and sentenced to death under Section 302, Penal Code for the double murder of Kartar Singh and Mada Si'Ilgh deceased, by the Sessions Judge, Ganganagar. He wa6 further convicted for offenres under Sections 307, 459, 460 and 380 Pena] Code. The case of the prosecution rested mainly on the confessional statement, Ex. p. 27, part from supporting circumstantial evidence. The learned Sessions Judge found that the confessional statement though retracted at the time of examination under Section 313, Criminal Procedure Code, had been voluntarily made by the accused and that it was true and had been corroborated in some particulars by the other evidence on record. Shankaria's appeal to the· High Court was dismissed, the reference made by the Sessions Judge was accepted and the conviction and sentence of death were confirmed. in appeal by special leave, it was contended that (i) the confession was not voluntarily made but was the result of police pressure, inducement and coercion and that this inference was deducible among others, from several features of the case. (ii) after the preliminary questioning, the Magistrate hardly give 20 minutes to the appellant for reflection before recording his confession, which according to the. ruling of this Court in Sarwan Singh v. State of Punjab [1957] SCR 953 the l\1agistrate should have sent the accused back for at least 24 hours to jail to think and decide, as to whether or not he should make a confession and (iii) there is reason to suspect that after recording the confession, the appellant was handed back to the .Police Superintendent who then took him to Hanumangarh. If that be a fact, it would amount to a contravention of ·subsection (3) of Section 164 of the Code of Criminal Procedure, 1973, giving rise to an inference that the confession was not voluntary. Dismissing the appeal, the Court HELD : 1. A confession recorded u/ s 164 Criminal Procedure Code, if voluntarily and truthfully made, is an efficacious proof of guilt. [744 B-CJ 2. When in a capital case the prosecution demands, a conviction of the accused, primarily on the basis of his confession recorded under s. 164 Criminal Procedure Code, the Court must apply a double test; (1) Whether the confession was perfectly voluntary? (2) If so, whether it is true and trustworthy? Satisfaction of the first test is· a sine qua non for its admissibility in evidence. if the confession appears to the Court to have been caused by any inducement, threat or promise, such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi ,nanu. In such a case, the question of proceeding further to apply the • ~· • • • .......... • - SHANKARIA v. RAJASTHAN 737 second test, does not arise. If the first test is satisfied, the Court m~st _before A acting upon the confession, reach the finding that what is. stated therein is true and reliable. For judging the reliability of such a confession, or fo! that matte.r of any substantive piece of evidence, the:e is no rigid cano~ of universal application. Even so one broad method which may be useful 1n most cases for evaluating a confession, may be indicated. The Court s~ould c~refully examine the confession and compare it with the rest of the evidence, tn the light of the surrounding circu!lli'tances and pr?babilities of the case. If on such examination and companson, the confession appears to be a probable B catalogue of events and naturally fits in with the rest £?f the evidence and the -surrounding circumstances it may be taken to have satisfied the second test . ' [ 744 C-F] 3. (a) In the instant case, ## Text _Characters 0–39,924 of 74,963. This is a partial read: ask again with offset=39924 for what follows._ A B c E ,F IH 736 SHAN KARIA 11. STATE OF RAJASTHAN April 26, 1978 [R. S. SARKARIA, N. L. UNTWALIA AND P. S. KAILASAM, JJ.j Proof of guilt-Tests to be applied by the Courts in a capital case when relying solely on confessional statement of the accused-Identification of Prisoners Act, Sections 4 and 5-0htaining of thumb impression in the presence of Magistrate, whether necessary-Track evidence is a relevant circumstance which can be taken into account along with other evidence. The appellant was tried, convicted and sentenced to death under Section 302, Penal Code for the double murder of Kartar Singh and Mada Si'Ilgh deceased, by the Sessions Judge, Ganganagar. He wa6 further convicted for offenres under Sections 307, 459, 460 and 380 Pena] Code. The case of the prosecution rested mainly on the confessional statement, Ex. p. 27, part from supporting circumstantial evidence. The learned Sessions Judge found that the confessional statement though retracted at the time of examination under Section 313, Criminal Procedure Code, had been voluntarily made by the accused and that it was true and had been corroborated in some particulars by the other evidence on record. Shankaria's appeal to the· High Court was dismissed, the reference made by the Sessions Judge was accepted and the conviction and sentence of death were confirmed. in appeal by special leave, it was contended that (i) the confession was not voluntarily made but was the result of police pressure, inducement and coercion and that this inference was deducible among others, from several features of the case. (ii) after the preliminary questioning, the Magistrate hardly give 20 minutes to the appellant for reflection before recording his confession, which according to the. ruling of this Court in Sarwan Singh v. State of Punjab [1957] SCR 953 the l\1agistrate should have sent the accused back for at least 24 hours to jail to think and decide, as to whether or not he should make a confession and (iii) there is reason to suspect that after recording the confession, the appellant was handed back to the .Police Superintendent who then took him to Hanumangarh. If that be a fact, it would amount to a contravention of ·subsection (3) of Section 164 of the Code of Criminal Procedure, 1973, giving rise to an inference that the confession was not voluntary. Dismissing the appeal, the Court HELD : 1. A confession recorded u/ s 164 Criminal Procedure Code, if voluntarily and truthfully made, is an efficacious proof of guilt. [744 B-CJ 2. When in a capital case the prosecution demands, a conviction of the accused, primarily on the basis of his confession recorded under s. 164 Criminal Procedure Code, the Court must apply a double test; (1) Whether the confession was perfectly voluntary? (2) If so, whether it is true and trustworthy? Satisfaction of the first test is· a sine qua non for its admissibility in evidence. if the confession appears to the Court to have been caused by any inducement, threat or promise, such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi ,nanu. In such a case, the question of proceeding further to apply the • ~· • • • .......... • - SHANKARIA v. RAJASTHAN 737 second test, does not arise. If the first test is satisfied, the Court m~st _before A acting upon the confession, reach the finding that what is. stated therein is true and reliable. For judging the reliability of such a confession, or fo! that matte.r of any substantive piece of evidence, the:e is no rigid cano~ of universal application. Even so one broad method which may be useful 1n most cases for evaluating a confession, may be indicated. The Court s~ould c~refully examine the confession and compare it with the rest of the evidence, tn the light of the surrounding circu!lli'tances and pr?babilities of the case. If on such examination and companson, the confession appears to be a probable B catalogue of events and naturally fits in with the rest £?f the evidence and the -surrounding circumstances it may be taken to have satisfied the second test . ' [ 744 C-F] 3. (a) In the instant case, both these tests were satisfied. The confession (Ex. P-27) was found to be voluntary and true. Its perusal showed that there was nothing improbable or unbelievable in it. It appeared to be a spontaneous account, studded with such vivid details about the manner of committing the crimes in question, which only their perpetrator could know. Th~ physical facts found at the spot in the morning following the night of occurrence, told a tale which was consistent With the one told by the accused in his confessi~n . Among these physical facts was a dibbi bearing finger-prints, one of which according to the Expert of the Government Finger Print Bureau, tallied with the specimen finger-print of the, accused. The accused's finger-print on the dibbi which was seized from the spot a•nd sealed before the arrest of the accused, and the seals on which remained intact till they were opened by the Finger-Print Expert, was a tell-taJe circumstance, pointing towards the guilt of the accused. [752 D, F. 754 D, 759 A] (b) 111e confessional statement received assurance from the other evidence also. (i) It was corroborated by the medical evidence in regard to the nature of the weapon (kassi) \Vith which according to the confession the injuries. were inflicted. This fact was further confirmed by the report of the Serolog1st who ·found human blood on the kassi. (ii) The moulds of the bare-foot prints found at the scene of crime, according to the· Expert, tallied with the specimen foot-moulds of the accused. (iii) Although, by itself, such track evidence could not be deemed suffi- ·cient to carry conviction, yet it was a relevant circumstance which taken into account a.long with the other evide~1ce, reinfor-ced the conclusion as to the identity of the culprit. [755 B. C. 759 D, EJ 4. The condition precedent for recording a confession by a Magistrate in the course of Police Investigation, is provided in Section 164(2) Cr. P.C . which mandates the Magistrate not to record any cq;nfession, unless upon questioning the accused person making it, he has reason to believe that it is being made voluntarily. In the instant case, the Magistrate fully complied with the condition. The large number of clear and pointed questions put by the Magistrate to the accused for this purpose and the answers given by the latter shows that the Magistrate had cogent reasons to believe that the confession was being voluntanly made, [749 E, F-G] c D E F G 5. How much time for reflection should be allowed to an accused person 'before recording his confession, is a question which depends on the circumstances of each case. The object of giving such time for reflection to the .accused, is to ensure that he is completely free from police influence. If immediately before the recording of the confession, the accused was in judicial custody beyond the reach of the investigating police for some days, then such custody frc;>m its very nat'!-lre, may itself be a factor dispelling fear or influence ·Of the police from the mind of the accused. In such a case, it may not be ff necessary to send back the accused person for any prolonged period to jail or judicial lock-up before recording his confession. Jn the instant case, the ·accused was got admitted to the judicial Jock-up on the 12th June for getting his confession recorded under s. 164 Cr. P.C., and. such admission was made A B c D E F G H 738 SUPREME COURT REPORTS [1978] 3 S.C.R. under the ordeIB of the Magistrate who ultimately recorded his confessi@n on1 the 14th June. The accused was for about two days in judicial custody beyond the reach of the Police. On June 13, 1974 a written request was made to th'.e Magistrate by the Police, for recording the confession of the accused. Even· !hen the Ma~istrate postponed the recording of the confession till the follow- !-Il&. ~ay, obviously because he wanted to give the appellant one day more in JUd1c1al custody to ponder over the matter free from Police influence. On the 14th June, notwithst~ding the fact that the accused Shankaria was in judicial cust~y ~rom the evenmg '?f the 12th June, the Magistrate after the preliminary questlon1ng, allqwed 15 minutes more to the accused for reflection. Thus, the accused had in fact about 38 or 40 hours in judicial custody, immediately preceding the confession, and this was rightly considered sufficient to secure to him freedom from fear or influence of the Police. [750 E-F, 751 A] Sarwan Singh v. State of Puniab [1957) SCR 953; distinguished. Abdul Razak v. State of Maharashtra AIR 1970 SC 283 followed. 6. There was no infringement of sub-section (3) of s. 164 Crl. P.C. According to the testimony of the Magistrate (PW 6) and the Superintendent of Police (PW 22) the custody of the accused was not handed to the investigating officer, but to the Challani guard who escort under trials to and from Jail/Judicial' guard. [751 E-F, 752 A] Regarding the sentence : 7. The crimes were committed in a most brutal and dasta.rdly fashion. The victim were taken una\vares when asleep. Two of them were blind. The Neronian conduct of the accused even after the occurrence, in languishing in the stricken premises, looking for something to eat in the kitchen, drinking water, smoking bidis, bringing water and bathing himself, mindless of the spectre of the slain and the groans and gasps of the dying, betrays an extreme depravity of character. The grisly and gruesome nature of the murders, the hapless and helpless state of the victims, the fiendish 1nodus operandi of the appellant the first kill and then steal-all, steel the heart of law to call for its extreme penalty. [759 H, 760 Al CIVIL APPELLATE JURISDICTION : Criminal Appeal No. 561 of 1976. Appeal by special leave from the Judgment and Order dated 5-5-1976 of the Rajasthan High Court in D. B. Cr!. Appeal No. 491 of 1975 and D. B. Reference No. 4 of 1975. S. K. Gambhir (Amicus Curiae) for the Appellant. S. N. Kacker, Sol. Gen!, S. M. Jain, Dalveer Singh and Ranjeev Dutta for the Respondent. Tne Judgment of the Court was delivered by SARKARIA, J.-This appeal by special leave is directed against a judgment of the High Court of Rajasthan, by which the orde~ of the, Sessions Judge, Ganganagar, conv1ctmg the appellant under Sectton 302 Penal Code and sentencing him to death for the double murder of two persons in Village Takhat Hazara, was confirmed. The facts of the prosecution case are as follows :- A First Information Report was lodged on September 9, 1973 at about 7.30 a.m. by one Shyam Singh in Police Station Sadnl Sahar, ~o the effect that when he in the momtng went to the Gurdwara of hts / ... • ~_,..,-- .... r ,.r ~ " ~ ' -- SHANKARIA v. RAJASTH.AN (Sarkaria, J.) 739 village at about 7 a.m. for brooming and burning incense, as usual, he found t~ree persons, one of whom, Mada Singh, laf groaning on a cot.. The mformant went ~ack to the village, contacted Jagar Singh, Han Smgh, Sukhdarshan Smgh, .Amar Singh and others, and in their company returned to the Gurdwara. It was then detected that kartar Singh son of Hari Singh lay dead on a cot with injuries on his head. The other two persons, Mada Singh and Wazir Singh, were lying injured. The locks of the rooms were found broken and the croods lay scattered. After registering the case, the Station House officer, ~hagwan Singh, reached the scene of occurrence. He prepared the site plan (Ex. P-8) and a connected explanatory note in which he recorded the physical facts noticed by him at the spot. Among other thmgs. he found one blood stained Kassi (Article 1) and a Dibbi (sruall tin-box) (Article 2). Some coins were also lying scattered there. He noticed some finger-prints on the Dibbi (Art. 2). He, therefore in the presence of witnesses including Sukhdarshan Singh (P.W.6), Jaggar Singh (P.W. 8), prepared the seizure memo (Ex. P. 14) in respect of the Dibbi and sealed it into a parcel. He also sealed the blood-stained Kassi into ~ parcel, vide Ex. P-12. He also took into possession blood-stained earth, clothes and broken locks from the scene. He also prepared the inquest report (Ex. P-12) in respect of the dead body of Kartar Singh deceased and sent it for post-mortem examination. Bhagwan Singh continued the investigation till September 12, 1973 when it was taken over by Bhanwar Singh. A large number of crimes of this pattern involving murders or attempted murders were committed in Rajasthan and in the neighbouring States of Haryana and Punjab. Fifteen cases of crimes of a similar nature were registered in Gang;anagar District, jalone, from February 1973 to May 1974. Naturally, the Police machinery of Ganganagar District came into motion. Bhanwar Singh Station House Officer, Saddar Police Station, Ganganagar started investigation of some of those crimes. He took over the investigation of this case also on September 12, 1973. Shri Shyam Pratap Singh Rathore, District Superintendent of Police supervised th~ investigation. Suspicion fell on the appellant who was found absent from his native village Karanpur, District Ganganagar. A c I> E F --._ On Juue 3, 1974, Shri Rathore accompanied by Bhanwar Singa, _.. " S. H. 0. and one Subhash (P.W. 23) went to Bhatinda and arrested the appellant, Shankaria who had assumed the alias R~ttan Lal. . A rickshaw driving licence issued by the municipal committee, Bhatinda dated April 4, 1974, for the period 1-4-74 to 31-3-75, in the nam~ of Rattan Lal son of Jetha Ram, one watch and a golden chain were seized from his person. Bhanwar Singh prepared the memo (Ex. P-56A) in • G respect of the arrest of the appellant and his personal ~earch. Immediately after his arrest, the appellant was told to keep his face ~uftled up, which he did. The appellant was then takl'.n by t?e police .to Ganganagar and lodged in the lock-up of the Pohc·e S_tation o~ Jun_e II 4, 1974. Under orders of the Inspector-General of Pohce, th~ mvesti; gation was tak•en over by Shri Kashi Prasad Snvastava, Supenntenden of C.I.D. on June 5, 1974. 740 SUPREME COURT REPORTS (1978] 3 S.C.R. A . appeared to be caused by separate blows . • ;,_.#- • Dr. Bahadur Singh found these injuries on Wazir Singh (P .w.) on September 9, 1973 : 1. Incised wound H" x t" upto brain on right parietal bone 2t" above the ear obliquely upward downward. 2. Incised wound 1 t" x !" x bO'lle deep on right side of frontal bone H" above the eyebrow. 3. Lacerated wound curved shape outer part of eye starting from lateral side of eyebrow upto maxillary prominence. Injuries 1 and 2, in the Doctor's opinion, could be caused \Vith the sharp side of the Kassi (Art.I), and were grievous; while Injury 3 A c D _, could be caused with the blunt side of this Kassi. Wazir Singh was E unconscious at the time of his medical examination. . ._ Dr. Bahadur Singh performed post-mortem examination of the body of Kartar Singh deceased on September, 9, 1973 and found these injmies : 1. Lacerated wound 2!" x t" upto brain matter on ihe frontal bone 2!" above the medial end of right eyebrow upward downward. Brain matter was seen from the wound. The bone was found fractured . 2. On right end anterior and lower part of parietal bone, there was circular injury of H" diameter half anterior part shows lacerated wouna of size 1 t" x t" x brain matter deep and the other half showed abrasion mark. 3. Incised wound t" x i" x !'' above the lateral side of right eyebrow. In his opinion, injuries 1 and 2, could be caused with the base of the wooden handle affixed to the hook of the Kassi (Art. 1). The doctor found multiple fracture of the right half of the frontal ~one and laceration of the brain. The injuries were sufficient to cause death in the ordinary course of nature. F G H 742 SUPREME COURT REPORTS [1978] 3 s.c.R. On June 29, 1974, the sealed packets containing the Dibbi \Art. 2) and the locks, together with the specimen finger-prints of the accused, were sent to the Rajasthan Finger-Print Bureau, Jaipur for comparison of the finger impressions and opinion. At the Bureau, the Finger-Print Expert, Shri P. N. Tankha (P. W. 18) examined them and found two chance prints on the Dibbi. He took their enlarged photographs and fonnd that the chance print Q1 on the B 'lJibbi was similar to the left middle-finger specimen print (marked s,) of Shankaria appellant; while the other chance print Q2 on the Dibbi was not distinct enough to admit of comparison. • • During his examination at the trial, the appellant denied the prosecution case; he retracted the confession and said it had been made under duress. He also alleged fabrication of evidence of foot- ---... ~ prints, etc. by the Police. ' D E ·G The learned Sessions Judge found that the confessional statement (Ex. P-27) had been voluntarily made by the accused and that it was true. He further held that the confession had been corroborated by the medical evidence and the circumstantial eviddence, namely: (a) the presence of a finger-print of the accused on the Dibbi (Art. 2); (b) that one railway ticket was issued from SaduJ Shahar to Bhatinda on September 9 1973; ( c) the similarity (as per Expert, P.W.19) of the foot-mould prepared from the foot prints found at the scene of crime on 9-9-1973, with the specimen foot-moulds of the accused; (b) sojourn of the accused to Haridwar after committing the crime and his stay in a costly hotel there, on 13th and 14th September, 1973, etc. In the result, the Sessions Judge convicted the appellant under Section 302 Indian Penal Code for the murders of Kartar Singh and Mada Singh and sentenced him to death. He further convicted the appellant nnder Section 307 I.P.C. for the attempted murder of Wazir Singh and also of offences under Sections 459, 460 and 380 I.P.C. for committing lurking house trespass by night and stealing Rs. 1,100/- from there but he did not award any sentence on these counts in view of the death sentence imposed for the double murder. ' Shankaria appealed to the High Court; while the Sessions Judge also made a reference for confirmation of the death sentence. _,,_,.-· The High Court dismissed the appeiil and confirmed the conviction and the sentence of death. Hence, this appeal by special leave. There is no ocular evidence of eye-witnesses in this case. At the time of occurrance, the three victims were the only inmates of the Gmdwara. Kartar Singh died at the spot. Mada Singh died in the Hospital without regaining consciousness. The lone survi_vor, Wazir .H Singh (P.W. 14) was examined at the trial. He was a blind min. He had received the head injuries when he was asleep. On receiving those injuries he lost consciousness and regained it much later in the hospital on September 9, 1973. In these circumstances, P.W. 14 - .. -- ' - • .. • SHANKARIA v. RAJASTHAN (Sarkaria, J.) 743 was unable to say as to who had caused him the head injuries. He, A however, did depose to the theft of Rs. 600/- which he had kept in the Gurdwara. This amount had been raised from a contribution for construction of a room in the Gurdwara. Thus the conviction of the appellant mainly rests on his confessional statement (Ex. P-27), which was recorded by the Judicial Magistrate, First Class (Shri S. K. Bansal, P.W. 6) on June 14, B 1974, under Section 164 of the Code of Criminal Procedure. The substantive part of this confessional statement, Ex. P-27, rnndered into English, reads as follows : "It is an incident of about ten months back that I had purchased a railway ticket from Bhatinda to Matili at 3 p.m. in the day and boarded the train from Bhatinda and reached Matili at about 7.30 p.m. Thereafter I took rail track and reached Takhat Hazara. I hid in the nala in c the cotton field near Takhat Hazara. There, I kept sitting and stayed there upto 12.30 in the night. At about 12.30 I came oot of the nala, crossed the line and reached the Gurdwara. There, I took off my clothes, chappals, and tried to climb the wall by the side of the line but could not succeed. Therefore, I climbed through the side and one kassi was lying there in a corner. There in the courtyard, three beds were lying. I picked up the kassi and hit on tb.e head of one person from the back (reverse) side of the kassi. Thereafter, I hit another person. I hit the third person after running, as he was sleeping very far. I then drank water, entered the kitchen but could not find anything in spite of search. Then I entered another room, opened the kunda (khuta). There a short was lying, from which I took. out a key. I broke open the lock and got Rs. 700/- and got nothing else during the search. Then I broke open the lock of another house with the help of a subble (iron bar). There I was able to get Rs. 4001, out of which Rs. 300/- were in cash and Rs. 100/ as change (small coins). I then remained there for much time, drank water, smoked a bidi, brought water from the nearby Johar (tank) in a bucket, and bathed myself. "Then I opened the Gurdwara and searched it, but could not find anything. I then immediately left the village Takhat Hazara and took the railway track again and reached the road and got on Abohar-Sirsa Road. There I stayed upto 7 a.m. In the morning I boarded the bus for Sangaria at 7 a.m. and stayed there at the station. I stayed there upto 10 a.m. and took tea. Then I boarded the train for Bhatinda at 10 a.m. and reached Bhatinda at 12.30. There I got the clothes stitched. In the evening at I 0, I boarded the train for Delhi, (then said) I went to Bilcaner and not Delhi. I stayed for two days at Bilcaner. After two days T went to Delhi and stayed there for two days. From Delhi, I proceeded for D E F G H A B c D E 744 SUPREME COURT REPO;RTS [1978] 3 S.C.R. Haridwar and stayed there in a rented room @ Rs. 12/- per day. I stayed at Haridwar for 8-9 days and then from Haridwar I proceeded for Rishikesh. There I stayed for two days and further proceeded for Lachman Jhoola. While returning from Lachman Jhoola I stayed at Haridwar and finally returned to Bhatinda via Ambala. I did not do any work for one month. Afterwards, I started Rilcshaw driving. I used to commit thefts, and the police also nsed to catch me, I was turned out from the house by the people of my house and that is why I happened to ply the Rikshaw."' This confession was retracted by the appellant when he was examined at the trial under Section 313 Cr. P.C. on June 14, 1975. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under Section 164 Cr. P.C., the Court must apply a double test : (1) Whether the confession was perfectly voluntary ? (2) If so, whether it is true and trustworthy ? Satisfaction of the first test is a sine quo non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence there is no rigid canon of nniversal application. Even so, one broad method which may be useful in most cases for evaluating a confession, may be indicated. The Court shonld carefully examine the confession and compare it with the F ·rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. G H Now, let us apply these tests to the confession (Ex. P-27). The first question is whether the confession was voluntary ? In this connection, some undisputed facts may be noted. The appellant was arrested by Shri S.P. Rathore, Superintendent of Police on June 3, 1974 at Bhatinda. He was then taken to Ganganagar in Rajasthan in connection with the investigation of 15 crimes of a similar pattern committed in Ganganagar District. The appellant remained in police custody upto June 12, 1974 on which date in the afternoon, he was brought by the police to Raisin.gh Nagar, where Shri Sukhdarshan Kumar Bansal, Judicial Magistrate First Class, was then holding his Court. Under the orders of the Magistrate", the appellant was committed to the judicial lock-up at Raisingh Nagar in the evening of June - - I .. • - .__ " ~ .. , ). r. • SHANKARIA v. RAJASTHAN (Sarkaria, J.) 745 12, 1974. Thereafter, he remained there in the judicial lock-up for two -days more. On June 13, 1974, Shri Kashi Ram, Superintendent of Police, submitted an application to 'the Magistrate, requesting him to £ecord the confession of the accused. On that application, the Magistrate passed an order to the effect that the accused be sent for from the judicial lock-up on the following day at 7 a.m. for recording his confessional statement. In compliance with the Magistrate's order, the appellant was brought from the judicial lock-up in the morning of June 14, 1974 and produced before the Magistrate. At 8.20 a.m., the Magistrate put some questions to the appellant by way of preliminary examination to ensure whether he wanted to make a confession voluntarily. The questions put to the accused and the answers given by him during this preliminary examination, as recorded by the Magistrate may be extracted : I "Q. 1. From where did the police arrest you? On what day or at what time? Ans. I was arrested at Bhatinda. I was arrested on 3rd at 2. Q. 2. For how much time are you in police custody ? Ans. I was in police custody from 3rd to 12th. Q. 3. What sort of behaviour was given to you during that period? Ans. J have been extended good behaviour by the police. Q. 4. It has been explained to you that it is not necessary for you to make any confession. Do you understand that it is at your discretion whether you make the confession or not? Ans. I have understood that it is not binding upon me to make any confession and it is at my discretion. Q. 5. Were you put to any physical torture or shown any fear compelling you to make any confession ? A B c D E Ans. I was not put to any physical torture or any fear to make F confession. Q. 6. Where you told that you will be released or pardoned or any other benefit will be given, in case you make confession ? Ans. I was not told that I would be released or pardoned or any other benefit will be given, in case of making confession. G Q. 7. It has been explained to you that yon will not be handed over to the police in case you do not make confession and that you will directly be sent to the Jail. Ans. I have understood. Q. 8. Do you understand that I am a Magistrate and that if you H make any confession, it may be used against you in evidence? Ans. Yes . 13-315SCI/78 A B 746 SUPREME COURT REPORTS [1978] 3 s.c.R. Q. 9. It has fully been explained to you that you are not bound to make confession an dthat you may give any statement whenever you like to make it voluntarily and that if you make confession that may be used against you in evidence. Now, tell, what you want to say? Ans. I have understood that it is not binding upon me to make confession and that it. may be used against me in evidence." After this preliminary examination, the Magistrate started recording of the confessional statement at 8.45 a.m. After the completion of the statement (Ex. P-27) (which we have extracted earlier), at its foot, the Magistrate made a memorandum, which rendered into English, c reads as follows : D E "I have explained to Shankaria alias Ratan Lal that he is not bound to make a confession and that if he does so, any confession whatever he makes, may be used against him in evidence and I believe that this confession of the crime has been made voluntarily by him (Shankaria). This confession has been made in my presence by him (Shankaria). By my reading over, on hearing it, the accused admitted it to be correct. It is a true and full record of the statement . which he (Shankaria) made voluntarily." The Magistrate, Shri Bansal, was also examined as a witness at the trial. . He proved the record of the confession and testified that he had recorded it after fully satisfying himself that the confession was being made voluntarily. Mr. S. K. Gambhir, appearing as amicus curiae, argued the case very thoroughly on behalf of the appellant. It is contended by him that the coufe~sion (Ex. P-27) was not voluntarily made but was the result of police pressure, inducement and coercion. According to him, F this inference is deducible from these circumstances : G H (1) No explanation is forthcoming a·s to why the accused was brought all the way from Ganganagar to Raisingh Nagar for getting the confession recorded there. Possibly, the police did not want to give the appellant an opportunity of having independcn! advice which could more easily be available in the District town of Ganganagar rather than "at the Sub-Divisional town, Raisinghnagar. (2) The Judicial Lock-up, Raisingh Nag.ar, being contiguous to the Police Station is almost a part of it. The appellant therefore, even on the 12th, 13th and 14th of June 1974, during the time when he was an inmate of the Judicial Lock-up, could not be said to be free from police surveillance and influence. (3) The Magistrate ha.rdly gav~ 20 mi~utes .to ~he appellan! for reflection before recordmg his confess10n. It is mamtamed that accorcling to the ruling of this Court, the Magistrate should have given at > ,, ' • ~>- -- _.., - - .. ..._ ... SHANKARIA v. RAJASTHAN (Sarkaria, J.) 747 least 24 hours to the appellant, to think and decide while in the judiA cial lock-up, as to whether or not he should make a confession. (Reli- - - ance in this connection has been placed on the decision of this Court in Sarwan Singh v. State of Punjab(')). ( 4) There is reason to suspect that after recording the confession, the appellant was handed back to the Police Superintendent, Shri Sri- " vastava who then took him to Hanumangarh. If that be a fact, it would amount to a contravention of sub-section (3) of Section 164 of the Code of Criminal Procedure, 1973, giving rise to an inference i that the confession was not voluntary. ' • lt is proposed to deal with these points ad seriatim. The learned Solicitor-General submits that at the relevant time, Shri S. D. Kumar Bansal was posted as Munsif-cum-Judicial Magistrate First Class at ) Sri Ganga Nagar, but he used to come to hold his Circuit Court at -''1'<:ii.isingh Nagar for 15 days. It is pointed out that un June 12, 1974 when the question of recording the confession of the appellant arose, no Judicial Magistrate of the First Class, competent to record a confession, was available at Ganga Nagar. Our attention has heen invited to the entries in the Roznamacha of Police Station, Sadar Ganganagar which reveal this fact. Stres·s has also been placed on the fact that no ~.question whatever was put tO' S/Shri Srivastava (P.W. 20) and Bhanwar Singh (P.W. 21) in cross-examination to show that on June 12, 1974, a Magistrate competent to record a confession under Section 164 Cr.P.C. was available at Ganganagar and that the appellant wns taken to Rafsinghnagar with a sinister motive or for extorting a con- ' " fessTon. There is merit in the submission made by the learned Solicitor-General. The relevant Roznamcha entries of Police Station Sadar, Gangana- "' gar, which were proved by Bhanwar Singh, S. H. 0. (P.W. 21), have been read out to us. From those entries, it appears that lhe appellant , was taken on June 12, 1974 from Ganganagar to Raisingh Nagar for getting his confession reco.rded by a Magistrate, because on that date no Judicial Magistrate of the First Class was available at Ganganagar. It may be noted further, that in cross-examination, no question was put to Shri Bhanwar, Singh or Shri Srivastava to show that on - 12-6-74 a Magistrate competent to record a confession, was available • at Ganganagar, or that the appellant was taken. to Raisingh Nagar with a mala fide motive, although the appellant was at the trial properlv ----..:1.<;fended by Shri Ganpat Ram, who, we are told, is an experienced --' ., lawyer. There is nothing on the record to indicate that the appellan'. was taken to Raisingh Nagar to deprive him of the opportunity of hav- -. ing independent legal advice, or with any other oblique motive. ;. As regards point No. (2), the appellant during his examination under Section 313 Cr.P.C., stated: "During those days, Kanshi Prasad Ji was staying in. the Police Station, Raisinghnagar which is adjacent to the Judicial Lock-up, and used to see and threaten me''. There- ,, after, the confe(<;sional statement (Ex. P-27) was read out to the B c D E F G appellant, and he was asked by the Sessions Judge as to whether this H statement was given by him. To this, the appellant replied : "I did .1 . 3 (I} (1957) s.C.R. 95 . A B D E F G H 748 SUPREME COURT REPORTS [1978j 3 S.C.R. not give this statement voluntarily. compulsion due to the fear, threat Prasad." I have given this statement under and beating given by Sh.ri Kashi In cro>s-examination, no question was put to Shri Kashi Prasad Srivastava to show that the Judicial Lock-Up Raisingh Nagar is adjacent to the Police Station, nor was he asked whether at the material time, he was staying in the Police Station Raisingh Nagar. Shri Srivastava was however asked as to whether he had compelled and beaten the aecused to make the confessional statement. This was sharply denied by him. .. ~ Questions were however put to Shri S. K. Bansal Judicial Magis- / f tratc (P.W.6) about the relative situ:ttions of the buildings of the Judi- ' cial Lock-up and Police Station at Raisingh Nagar. Shri Bansal stated that the Judicial Lock-Up is at a distance of 150 to 200 feet from the _. Court at Raisinghnagar. He was then questioned: "Is Police Station:~-< Raisingh Nagar adjacent to the Judicial Lock-Up?" The witness replied: "The Police Station is constructed near it but the building is a separate one. I do not know whether there is any common wall in betw.,en or not. I cannot say whether a man can peep through/from the common wall, which is four feet high .... between the Police Station ·and the Judicial Lock-Up. I do not know as to whether the doors of the Police /~ Station and Judicial Lock-Up are in one side. I cannot say whether the distance in between them is about 30 feet." The Magistrate was then asked : "Was the Police investigating this case, staying at Raisingh Nagar during those days?" The witness answered: "I cannot say, as I had never been to Police Station Raisingh Na gar." Tbc evidence of the Magistrate, referred above, shows no more than the fact that the Judicial Lock-Up at Raisingh Nagar is located in a separate building, near the Police Station. But from the mere fact " that the judicial Jock-Up is located in the proximity of the Police Station, it does not follow that both are nnder the control of the Police. ~ The judicial Jock-Up-as appears from the statement of the Magistrate, Shri Bansal-is a Sub-Jail governed by the Jail M.anual. The watch and ward staff of the Judicial Lock-Up are under the control of the Jail Superintendent or the Magistrate who may be the exofficio Superintendent of the Snb-Jail (including the Judicial LockUp). The precise position as to whether Shri Bansal or any other • - Magistrate was in charge of the Judicial Lock-Up is not clear from _ Shri Bansal's statement, because he was not spcl:mca!L'y and fuity··- 1..-, questioned in regard to this aspect of the matter. Even so, this "" much is clear that the Judicial Lock-Up was .not under the control -- of Shri Srivastava. Even Police Station, Raisingh Nagar, could not be under the administrative control of Srivastava as he was not the District Superintendent of Police but belonged to the C.I.D,, and his headquarter was at Jaipur. In these circumstances, it cannot be believed that from 12th to 14th June 1974, Shri Srivastava was staying in Police Station Raisingh Nagar. An Officer of his status, belongiug to. another branch of the Police Department, normally is not expected to use a Police Station for his board and lodging while on tour. Moreover, .as already mentioned, not a single question was put to Sri- '*' vastava or Bhanwar Singh to show that they halted in the Police Station. SHANKARIA v. RAJASTHAN (Sarkaria, J.i 749 I