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CASE NO.:

Appeal (crl.) 895 of 2005

PETITIONER:

Ram Singh

RESPONDENT:

Sonia & Ors

DATE OF JUDGMENT: 15/02/2007

BENCH:

B.N. AGRAWAL & P.P.NAOLEKAR

JUDGMENT:

JUDGMENT

WITH

CRIMINAL APPEAL NO. 894 OF 2005

&

CRIMINAL APPEAL NO. 142 OF 2006

B.N. AGRAWAL, J.

Sonia [A-1] and Sanjiv [A-2], respondents in Criminal

Appeal No. 895 of 2005, were tried and convicted by the trial

court under Section 302 read with Section 34 and Section

120-B of the Indian Penal Code [`IPC' for short] and sentenced

to death and to pay a fine of Rs. 2000/- each. A-1 and A-2

were further convicted under Sections 25(1-B)(b) and 25(1-B(a)

of the Arms Act respectively and sentenced to undergo

rigorous imprisonment for a period of one year. A-2 was

further convicted under Section 201 IPC and sentenced to

undergo rigorous imprisonment for three years and to pay a

fine of Rs. 1000/- in default whereof to further undergo

imprisonment for one month. The sentences were, however,

ordered to run concurrently. Tried along with A-1 and A-2

were eight other accused persons but they were acquitted by

the trial court for want of evidence. The order of convictions

and sentences gave rise to a murder reference by the Sessions

Judge, Hisar and appeals by both the accused before the

Punjab & Haryana High Court. By the impugned judgment,

while upholding their convictions under Section 302 read with

Section 34 and Section 120-B of the IPC and other provisions,

the High Court has commuted the sentence of death into life

imprisonment. Hence these appeals by special leave.

While Criminal Appeal Nos. 895 of 2005 and 894 of 2005

have been preferred by Ram Singh, brother of deceased \026 Relu

Ram, and the State of Haryana respectively for enhancement

of sentence from life imprisonment to death, Criminal Appeal

No.142 of 2006 is by the accused assailing the impugned

judgment of their convictions and sentences.

The case of the prosecution is that on 23.8.2001 when

Jeet Singh [PW 57], one of the employees of deceased - Relu

Ram, and A-2 were sitting at the Saw Mill located by the side

of Farm House of Relu Ram, a telephone call was received by

A-2 from A-1 conveying her desire to celebrate Priyanka's

[deceased sister of A-1] birthday at the Kothi at Litani Mor

[place of occurrence] and that she would bring her from the

hostel of Jindal School at Hisar \026 the school she was studying

in. At about 9.30 p.m. A-1 along with Priyanka reached home

in a jeep. Thereafter, between 11 \026 12 p.m., on hearing some

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noise of footsteps, PW 57, who was present at the Farm

House, woke up and noticed that light in the room, where the

spare parts of tractors etc. were kept, was on and upon

inquiry found that A-1 was there in the room and he saw her

taking a rod to the first floor which rod is used for

raising/tilting the tractor from the ground. He again heard

the noise of explosion of fire works, but, thinking that

Priyanka's birthday was being celebrated, he went to sleep.

PW 57 further stated that on 24.8.2001 at about 4.45 a.m.

when he was sitting on his cot, he saw A-1 coming down and

taking the Jeep at a very fast speed and returning after half an

hour. Thereafter, at about 5.30 a.m. Ram Phal, the Milk

Vendor, brought milk, but on seeing him coming upstairs, A-1

instructed him to leave the milk on the ground floor. At about

6.15 a.m. the School Van came to take Lokesh [deceased], son

of Sunil [deceased], but it left after waiting for some time as

Lokesh did not come down despite blowing of horn. PW 57

thereafter sent Rohtas, another servant of Relu Ram, to the

first floor for bringing Lokesh down for being dropped in the

School on motor-cycle. Upon being called by Rohtas, PW 57

went to the first floor and found that A-1 was lying in the

porch with froth coming out of her mouth and was mumbling

that she be saved and Sanjiv [A-2] be called. Reaching inside

the house, PW 57 found that Relu Ram [father], Krishna

[mother], Sunil [brother], Shakuntala [sister-in-law], Priyanka

@ Pamma [sister], Lokesh [nephew] and Shivani and Preeti

[nieces] of A-1 had been murdered in different rooms. He also

found that Shakuntla's hands and feet were tied with cot.

The tractor rod that PW 57 had seen A-1 removing from the

room on the previous night was lying on the bed of A-1.

Noticing a letter [Suicide Note \026 Ext. 227] lying on the bed of A-

1 written in Hindi, PW 57 picked up the same and left for the

Ulkana Police Station. While giving description of what had

been seen by him at the place of occurrence and handing over

the said Suicide Note to S.I. Vinod Kumar, PW 59, PW 57 also

stated that it may be possible that A-1 under a conspiracy

had either administered some poisonous substance or made

them to inhale poisonous thing and upon becoming

unconscious they had been murdered. It was further stated

by him that about six months prior to this incident, A-1 with

an intention to kill deceased Sunil had also fired a shot from

the licensed gun of deceased Relu Ram over a dispute of

property, but the matter was hushed up in the house.

On the basis of sequence of events that had taken place

at the place of occurrence from the evening of 23rd August

until 24th morning, described by PW 57 to PW 59 and the

Suicide Note alleged to have been written by A-1, FIR was

registered in the Ulkana Police Station at 8.15 a.m. by PW 59

wherein contents of Suicide Note were also reproduced.

On completion of the investigation, chargesheet was

submitted against A-1, A-2 and eight other accused persons,

cognizance taken and they were committed to the court of

Sessions to face trial.

Defence of the accused persons was that they were

innocent and falsely implicated. The stand taken by A-1 was

that she was picked up by the police of CIA Staff on 24th

August from Faridabad and was brought to Hisar, kept in

illegal custody, tortured and threatened that in case she would

not make the statement according to what they say, her only

son would be killed and thereafter they forcibly obtained her

signatures on blank papers. A-2 took the defence, inter alia,

that he was falsely implicated at the instance of the employees

of Relu Ram who had embezzled a lot of money of his father-

in-law and by those people who had taken a loan from him

and that it were they who had committed the murder of Relu

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Ram and his family members.

So far as A-1 is concerned, the prosecution case

principally rests on (1) the Suicide Note [Ext. 227] alleged to

have been written by her wherein she admitted having

murdered eight persons, including three tiny tots, who were

none other than her own immediate family members, (2) the

judicial confession [Ext. 187] made by her to the Magistrate in

the hospital where she was removed by the Police immediately

after the occurrence and (3) bloodstained clothes of A-1, blood

group of which tallied with the blood group of deceased Sunil

and Lokesh.

So far as A-2 is concerned, the case of the prosecution

revolves around circumstantial evidence, extra-judicial

confessions made by him to Sunder Singh, PW.48, and Rajni

Gandhi, Scientific Assistant, PW 17, the result of the

polygraph test to which he was put by the prosecution and the

recoveries made at his instance by the police.

Mr. Sushil Kumar, learned senior counsel appearing on

behalf of the respondents, has submitted that the suicide story

is a total concoction by the prosecution as, even according to

the medical evidence, A-1 did not show any symptom of having

consumed poison, she was not administered any treatment as

such, though prescribed and, therefore, her having not

consumed any poison, there was no reason for her to write the

alleged Suicide Note, as there was no risk to her life, which, he

says, is a document that she was forced to write after having

been tortured in police custody. So far as judicial confession

[Ext. 187] made by A-1 to Pardeep Kumar, Judicial Magistrate,

1st Class [PW 62] is concerned, his submission is that it is a

piece of evidence which needs to be eschewed from

consideration by this Court on two counts \026 i.e., admissibility

and truthfulness as the approach of the recording magistrate

was very casual and it has not been recorded according to the

procedure prescribed by Section 164 of the Criminal Procedure

Code [`Cr.PC' hereinafter]. According to the learned counsel,

non-compliance of Section 164 by the recording magistrate

cannot be cured by Section 463 Cr.P.C. as it cures only the

defect of recording the statement and not its non-compliance.

In support of this submission, reliance has been placed by the

learned counsel upon the decisions in the cases of Nazir

Ahmad v. King Emperor AIR 1936 PC 253, Preetam v. State

of M.P. (1996) 10 SCC 432, and Tulsi Singh v. State of

Punjab (1996) 6 SCC 63. Learned counsel further submits

that since it is not and cannot be disputed that A-1 was

removed from the place of occurrence to the hospital by Head

Constable Ashok Kumar [PW.25], she came to be under police

custody since the time of her such removal until her formal

arrest by the police on 26th August, 2001 and her movements

having been restricted and she having been kept under direct

or indirect police vigil, as per the legal position, she was in

police custody. In support of this submission, he has placed

reliance upon Paramhansa Jadab & Anr. Vs. State, AIR 1964

Orissa 144. Learned senior counsel has also pointed out other

infirmities in the prosecution case, such as tampering of

hospital record [Exts. P-193 and P-192], non-lifting of

fingerprints from the iron rod used to commit the crime and

ante-timing of FIR.

On the other hand, Mr.K.T.S. Tulsi, learned senior

counsel appearing on behalf of the appellant in Criminal

Appeal No. 895 of 2005 has submitted that in view of

admission by A-1 in the Suicide Note as well as in the judicial

confession [Ext. 187] made to PW 62 of having committed the

murder and handwriting on the Suicide Note having been

proved to be that of A-1, there is no scope left for doubting the

veracity of the prosecution case. It has been further

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submitted by Mr. Tulsi that insofar as judicial confession

recorded by PW.62 is concerned, it was recorded according to

the procedure set out in Section 164 Cr.P.C. and that the

alleged breach of Section 164(2) i.e., failure of magistrate to

record reasons to believe that her statement was voluntary is a

defect curable by Section 463 of the Cr.P.C. and is covered by

a decision of a 3-Judge Bench of this Court in the case of

Babu Singh vs. State of Punjab, [1963] 3 SCR 749. Adopting

the line of argument identical to that of Mr. Tulsi, Mr. U.U.

Lalit, learned senior counsel appearing on behalf of the State,

submitted that even if there is a violation of Section 164

Cr.P.C., the Court can admit such an evidence as the violation

of that Section is cured by Section 463 Cr.P.C. if it had not

injured the accused in his defence on the merits.

We shall first deal with the Suicide Note allegedly written

by A-1. PW 57 \026 the informant \026 while lodging the FIR and in

his evidence stated that the Suicide Note was picked up by

him from A-1's bed and thereafter he left for the Ulkana Police

Station to lodge the FIR. It was handed over by him to PW.59

who, on the basis of sequence of events narrated by PW.57

that had taken place at the place of occurrence and on the

basis of Suicide Note, registered the FIR, making the Suicide

Note as part and parcel of the FIR by reproducing its contents

therein.

So far as presence of A-1 at the place of occurrence is

concerned, both PW.57 and PW 58 - Amar Singh, another

employee of deceased Relu Ram who was working as

Chowkidar and posted at the main gate of Kothi at Litani Mor

[the place of occurrence], in their testimony have stated that

they had seen A-1 coming to the Kothi at Litani Mor along with

deceased Priyanka@Pamma in a Jeep between 9-10 p.m. on

23rd August, 2001, going out of the Kothi in the early hours of

24th August in a self-driven jeep at a very fast speed and

returning after half an hour. This fact is corroborated by the

evidence of Head Constable Dharambir Singh [PW.46] who, in

his evidence, has stated that while he was on patrolling duty

at Surewala Chowk from 2 a.m. to 6 a.m. on 24th August,

2001, he had seen A-1 at 5.30 a.m. coming from the side of

Barwala in a Tata Sumo driving at a very fast speed. The

evidence, which further lends support to this fact, is that of

Constable Ashok Kumar [PW 25] and Chhabil Das, PW.64.

PW.25, who was asked by PW.59 along with other police

personnel to reach the place of occurrence, stated that on

reaching the spot and seeing A-1 with froth coming out of her

mouth, he removed and admitted her to the Janta Hospital at

Barwala. PW.64, who happened to be present at the place of

occurrence, has stated that on seeing PW.25 taking A-1 to the

hospital, he accompanied him to the hospital. The application

[Ext. P.152] moved by PW.25 to the doctor on duty with regard

to the fitness of A-1 to make the statement and also the indoor

chart [Ext. P.193] which bears the signature of PW. 64 depict

that she was brought by PW.25. Mr. Sushil Kumar has drawn

our attention to the omission made by PW.25 in his evidence

that this witness has nowhere stated that he was accompanied

by PW.64. This omission by PW.25, in our view, does not

affect the case of the prosecution, especially in view of the fact

that the indoor chart of the hospital bears the signature of

PW.64. Therefore, there is overwhelming evidence to show the

presence of A-1 at the place of occurrence on the intervening

night of 23rd and 24th August and in the early hours of 24th

August, 2001. The trial court and the High Court have relied

on the evidence of PW 57, PW 58, PW 46, PW 25 and PW 64

after close and careful scrutiny of the same. We have on our

own considered the evidence on the point and we are satisfied

that the view taken by the trial court and the High Court is

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correct one.

The factum of A-1's presence at the place of occurrence

having been established, we now proceed to discern whether

the Suicide Note was fabricated one. In order to verify the

handwriting on the Suicide Note to be that of A-1, on

10.9.2001 SI\026Ajit Singh [PW 27] moved an application before

Balraj Singh [PW.26], the then SDM, Hisar, for taking

specimen signature and handwriting of A-1, which were taken

and sent to FSL, Madhuban for analysis. According to the

report submitted by FSL, Madhuban, in this regard, the

handwriting on the Suicide Note tallied with the specimen

handwriting.

A bare perusal of Suicide Note which was addressed by

A-1 to none other than A-2 [her husband], would show that in

the very first line she has confessed of having eliminated

everybody and that she was ending her life as well. In this

very letter of hers, A-1 has admitted having written it

immediately after the occurrence. This fact stands proved by

the evidence of PW.57 who in his evidence has stated that he

picked up the said letter from A-1's bed and thereafter left for

the police station. Therefore, there was no reason for any of

the police officials to be present at the place of occurrence

from the time the crime was committed until the arrival of the

police officials after the lodgment of the FIR. Both the courts

below have relied upon the evidence of PW.57 and PW.26 on

this point and we see no reason to disbelieve their testimony.

In this view of the matter, the submission of the learned

counsel that the Suicide Note was fabricated has to be

rejected.

This takes us to the next submission made by Mr. Sushil

Kumar that movements of A-1 having been restricted since the

time of her removal to the hospital until her formal arrest on

26th August, 2001, she was kept under direct or indirect police

surveillance and, therefore, as per legal position, she was

under police custody. In support of this submission, he has

relied on Paramhansa Jadab & Anr. Vs. The State, AIR 1964

Orissa 144, a decision of a Division Bench of Orissa High

Court. We have been taken through the evidence of PW 25,

Dr. Jagdish Sethi [PW.52] and PW 62. PW.25 has stated in his

evidence that on his arrival at the place of occurrence, he saw

A-1 lying in front of the main door under the porch of the first

floor of the house from where she was removed to the hospital.

The factum of admission to the hospital stands proved from

the evidence of PW.52, who was on duty as the Casuality

Medical Officer at the Janta Hospital, Barwala. In his

statement, PW.52 has stated that at the time of her admission

to the hospital, A-1 was unfit to make any statement. PW.62

in his evidence has stated that at the time of recording of

confessional statement of A-1, no police official was present

either in the room in which the statement was recorded nor in

the vicinity of the hospital which fact has been confirmed in

his evidence by Dr. Anant Ram, PW 32, under whose care A-1

was at the time the judicial confession was being recorded and

who was also present at the time of its recording.

Undoubtedly, movements of A-1 were restricted, but it

happened not because of any direct or indirect vigil kept by

the police authorities, as is the contention of the learned

counsel, but because of the treatment that was administered

to her in the hospital. In her Suicide Note, A-1 towards the

end has written that after finishing them all she was ending

her life. PW.52 has also stated that at the time of her

admission hers was a case of suspected poison and, therefore,

she was declared to be unfit to make any statement. There is

not an iota of evidence on record to show that in order to keep

any direct or indirect vigil on the movements of A-1 the police

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personnel remained present in or outside the room in which A-

1 was recuperating or in the hospital since the time of A-1's

admission until her discharge therefrom or that the police

personnel made frequent visits to the hospital, thereby

restricting A-1's movement.

In Paramhansa [supra], reliance upon which has been

placed by the learned counsel, the question that arose was

whether the accused, who was formally arrested by the police

on 19.2.1962, could be said to be in police custody from the

moment when his movements were restricted and he was kept

in some sort of direct or indirect police surveillance. In the

said case, the accused was interrogated on 17.2.1962 and

taken to the office of one Dr. Asthana on 18.2.1962.

Accompanied along with the police personnel were some other

persons and while police personnel left Dr. Asthana's office

after a while, the accused and other persons who accompanied

the police remained there. Setting aside the conviction of the

accused under Section 302/34 and allowing the appeal, it was

held at page 148 as under:

"\005. in the circumstances of this case I

would hold that Paramhansa was in

police custody for the purpose of Section

26 of the Evidence Act from the date of

his interrogation by the Inspector on

17.2.1962 and that he continued to be in

police custody when he was brought and

left in Dr. Asthana's residence on

18.2.1962\005\005. It is true that when this

appellant made the confession before Dr.

Asthana no police officer was near him.

But some persons who came with the

police in the Police van were left there.

Thus there was indirect control and

surveillance over the movements of the

appellant by the police\005..."

Whether one is or is not in police custody could be

discerned from the facts and circumstances obtaining in each

case. Insofar as the case at hand is concerned, the police

party reached the place of occurrence within 10 minutes of

lodgment of the FIR and PW.25, being aware of the fact that A-

1 had consumed poison and under instructions, seeing A-1

lying in front of the porch, removed her to the hospital. PW.52

having opined that A-1 was unfit at the time of her admission

in the hospital to give any statement, PW.62 and PW.32 also

having stated in their evidence that none else, except them,

was present in the room in which the statement of A-1 was

recorded and in the absence of any evidence to show that from

the moment of her admission to and discharge from the

hospital the police personnel were either present in the room

wherein A-1 was kept for treatment or even in the vicinity of

the hospital or they made frequent visits to the hospital, it

cannot be said that the A-1's movements were restricted or

she was kept in some sort of direct or indirect police

surveillance and that she was in police custody for the

purpose of Section 26 of the Evidence Act. Therefore, in our

view, Paramhansa [supra] is of no help insofar as A-1 is

concerned.

Turning now to the next submission of learned counsel

appearing on behalf of the accused as to the judicial

confession [Ext.187] made by A-1 before PW.62, it would be

useful to refer to relevant provisions in the Criminal Procedure

Code that deal with the recording of a judicial confession by a

judicial magistrate and see whether the judicial confession

recorded by PW.62 of A-1 is according to the procedure

prescribed by these provisions or whether any violation thereof

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has been made by the magistrate while recording it. The

relevant Sections in the Cr.P.C. are Sections 164, 281 and

463.

Sub-section (2) of Section 164 Cr.P.C. requires that the

magistrate before recording confession shall explain to its

maker that he is not bound to make a confession and if he

does so it may be used as evidence against him and upon

questioning the person if the magistrate has reasons to believe

that it is being made voluntarily then the confession shall be

recorded by the magistrate. Sub-section (4) of Section 164

provides that the confession so recorded shall be in the

manner provided in Section 281 and it shall be signed by its

maker and the recording magistrate shall make a

memorandum at the foot of such record to the following effect:

"I have explained to [name] that he

is not bound to make a confession

and that, if he does so, any

confession he may make may be

used as evidence against him and I

believe that this confession was

voluntarily made. It was taken in

my presence and hearing, and was

read over to the person making it

and admitted by him to be correct,

and it contains a full and true

account of the statement made by

him.

[Signed]

Magistrate"

Sub-section (1) of Section 463 provides that in case the

Court before whom the confession so recorded is tendered in

evidence finds that any of the provisions of either of such

sections have not been complied with by the recording

magistrate, it may, notwithstanding anything contained in

section 91 of the Indian Evidence, Act, 1872, take evidence in

regard to such non-compliance, and may, if satisfied that such

non-compliance has not injured the accused in his defence on

the merits and that he duly made the statement recorded,

admit such statement.

In the case on hand, the application that was made to

PW.62 was for recording a dying declaration as A-1 was

suspected to have consumed poison. Learned counsel

appearing on behalf of the accused submits that as there was

no danger to the life of A-1, there was no reason for the

prosecution to call PW.62 for recording dying declaration of A-

1. We have perused the Indoor Charts of Janta Hospital,

[Exts. 192 and 193] which clearly depict that hers was a case

of suspected poison. We have also been taken through the

evidence of Dr. Jagdish Sethi, PW.52, who, in his testimony,

has also stated that A-1 was admitted to the Janta Hospital in

the morning of 24th August as a suspected case of poison and,

therefore, she was declared to be unfit to make any statement.

In our view, the prosecution rightly sent for PW.62 for

recording dying declaration of A-1.

Before adverting to the three decisions relied upon by the

learned counsel for the accused, we shall first analyse the

judicial confession (Ext.187) recorded by PW 62 and see

whether it has been recorded according to the procedure

prescribed by Section 164.

On 24th August, 2001, upon receipt of an application

moved by Superintendent of Police for recording dying

declaration of A-1 by a magistrate, DSP Man Singh, who partly

investigated the case, approached the Chief Judicial

Magistrate, Hisar, who, in turn, marked the said application to

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Pardeep Kumar, PW.62. On its presentation to PW.62 by DSP

Man Singh at 10 p.m. the same day, both PW.62 and DSP

Man Singh left for the Janta Hospital, Barwala. After

reaching the hospital and before recording the statement,

PW.62 first sought opinion of Dr. Anant Ram (PW 32) as to the

fitness of A-1 to make the statement. As in the opinion of PW

32, A-1 was fit to make the statement, PW.62 proceeded to

record it, which is in question and answer form. It appears

from Ext. 187 as well as from the questions and answers

which were put to A-1 that PW.62 warned A-1 that she was

not bound to make any confessional statement and in case

she did so, it might be used against her as evidence. In spite

of this warning, A-1 volunteered to make the statement and

only thereafter the statement was recorded by PW.62. In the

certificate that was appended to the said confessional

statement PW.62 has very categorically stated that he had

explained to A-1 that she was not bound to make a confession

and that if she did so, any confession she would make might

be used as evidence against her and that he believed that the

confession was voluntarily made. He further stated that he

read over the statement to the person making it and admitted

by her to be correct and that it contained a full and true

account of the statement made by her. It has been further

stated by PW.62 in his evidence that at the time of recording of

the confession it was he and PW 32, who were present in the

room and there was neither any police officer nor anybody else

within the hearing or sight when the statement was recorded.

It also appears from the evidence of PW.62 that it took about

2-1/2 hours for him to record the statement of A-1, which

runs into 5 pages, which he started at 10.53 p.m. and ended

at 1.28 a.m. which goes to show that A-1 took her time before

replying to the questions put. PW.62 has also stated that she

had given the statement after taking due time after

understanding each aspect. It also appears that he was

satisfied that she was not under any pressure from any

corner. Therefore, it is evident from the certificate appended to

the confessional statement by PW.62 that the confessional

statement was made by the accused voluntarily. Of course, he

failed to record the question that was put by him to the

accused whether there was any pressure on her to give a

statement, but PW.62 having stated in his evidence before the

Court that he had asked the accused orally whether she was

under any pressure, threat or fear and he was satisfied that A-

1 was not under any pressure from any corner, that in the

room in which the said confessional statement was recorded it

was only he and PW.32 who were present and none else and

that no police officer was available even within the precincts of

the hospital, the said defect, in our view, is cured by Section

463 as the mandatory requirement provided under Section

164(2), namely, explaining to the accused that he was not

bound to make a statement and if a statement is made the

same might be used against him has been complied with and

the same is established from the certificate appended to the

statement and from the evidence of PW.62. Therefore, in the

light of our discussion above, we have no hesitation in holding

that the judicial confession [Ext. 187] having been recorded

according to the procedure set out in Section 164 read with

Section 281 and the defect made while recording the same

being curable by Section 463, it is admissible in evidence.

We now advert to the decisions relied upon by the

learned counsel appearing on behalf of the accused. In the

case of Nazir Ahmad [supra] the accused, who was charged

with dacoity and murder, was convicted on the strength of a

confession said to have been made by him to a Magistrate of

the class entitled to proceed under the provisions of Section

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164 relating to the recording of confession. The confession

was not recorded according to the procedure and the record of

the confession was not available as evidence either. The

Magistrate, however, appeared as a witness and gave oral

evidence about the making of the confession. He stated that

he made rough notes of what he was told, got a memorandum

typed from the typist on the basis of the rough notes and

thereafter destroyed the rough notes. The said memorandum,

signed by him contained only the substance but not all of the

matter to which he spoke orally. The recording Magistrate in

the said memorandum just above his signature appended a

certificate somewhat to the same effect as that prescribed in

section 164 and, in particular, stating that the Magistrate

believed that the statements were voluntarily made. As there

was no record in existence at the material time, there was

nothing to be shown or to be read to the accused and nothing

he could sign or refused to sign. The Judicial Committee held

that the oral evidence of the Magistrate of the alleged

confession was inadmissible. The Magistrate offered no

explanation as to why he acted as he did instead of following

the procedure required by Section 164. When questioned by

the Sessions Judge, the response of the accused was a direct

and simple denial that he had ever made any confession. The

Judicial Committee, considering the abject disregard by the

Magistrate of the provisions contained in Section 164 of the

Code, observed that "where a power is given to do a certain

thing in a certain way the thing must be done in that way or

not at all". Nazir [supra] is a case where recording Magistrate

did not at all follow the procedure prescribed by Section 164 of

the Code as a result of which, he violated the provisions

thereof whereas in the case on hand the omission that has

been made by the magistrate is his failure to record the

question that he asked to the accused whether she was under

any pressure, threat or fear to make a confession in the

confessional statement and the answer given by A-1. In his

evidence before the Court, PW.62 stated that he asked A-1

whether she was under any pressure, threat or fear and after

he was satisfied that she was not under any pressure from any

corner, he recorded in the memorandum that was appended to

the confessional statement of A-1 that he believed that the

confession was voluntarily made. In our view, Nazir [supra]

has no application to the facts of the present case as the

failure of PW.62 to record the question put and the answer

given in the confessional statement has not caused prejudice

to the accused in her defence and is a defect that is curable

under Section 463.

In the case of Preetam [supra] the accused was arrested

on 17.6.1973 and when produced before the Magistrate on the

following day he was sent to police custody, where he

remained until 22.6.1973 and, thereafter he was sent to

judicial custody. Upon being produced before a Magistrate on

25.6.1973 for recording his confession, he was given two

hours time to reflect. After cautioning the accused that he

was not bound to make a confession and that if he did so, it

might be used against him, the Magistrate went on to record

his confession. Failure of the recording Magistrate to put

questions to the accused to satisfy himself that the confession

was voluntary so as to enable him to give the requisite

certificate under sub-section (4) was termed by this Court as

flagrant violation of the provisions of Section 164(2) and in

utter disregard of the mandatory requirements of the said

section. Preetam (supra) is a case where the accused

remained in police custody for six days immediately before the

recording of his confession by the Magistrate and, therefore,

could be said to have been pressurized, tortured and harassed

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by the police. In such a situation, omission on the part of the

recording Magistrate to put a question to the accused to

satisfy himself that the confession was being made voluntarily

can be said to be flagrant violation of law. However, in the

case on hand, A-1 was removed by the police from the place of

occurrence to the hospital in the morning of 24th August, 2001

where she remained until her arrest by the police in the

evening of 26th August, 2001. It was at 10.58 p.m. on 24th

August, 2001, i.e., during her hospitalization, that PW 62

recorded her confessional statement after cautioning her that

she was not bound to make any confession and that if she did

so, it might be used as evidence against her. PW 62 in his

evidence has stated that it was only after administering the

above caution and satisfying himself that A-1 was making the

statement voluntarily that he proceeded on to record her

confession. It also appears from his evidence that no police

official was present either in the room in which he recorded

the confessional statement of A-1, or in the hospital.

Therefore, in the absence of any evidence to show that she was

under direct or indirect vigil of the police authorities during

her hospitalization and she having already confessed the crime

in her Suicide Note, the omission on the part of the recording

Magistrate to record the question and the answer given in the

confessional statement cannot be said to be flagrant violation

of law, especially in view of the fact that the recording

Magistrate has stated in his evidence that he orally asked A-1

if she was under any pressure, threat or fear and it was only

after satisfying himself that she was not under any pressure

from any corner that he recorded her confessional statement.

In the certificate that was appended to the confessional

statement as well, PW 62 has stated that he believed that

confession that A-1 made was voluntary. In our view, the

defect committed being curable under Section 463 has not

injured the accused in her defence on the merits and that she

duly made the statement.

Similarly, in the case of Tulsi Singh [supra], also relied

upon by the learned counsel for the accused, the recording

Magistrate did not explain to the accused that he was not

bound to make a confession and that if he did so, it might be

used against him, nor did he put any question to him to

satisfy that the confession was being voluntarily made

although, an endorsement to this effect was made by him in

the certificate that was appended to the confessional

statement. This court, while setting aside the conviction and

sentence recorded against the accused under Section 302 IPC,

held that the special court was not at all justified in

entertaining the confession as a voluntary one, observing that

mere endorsement would not fulfill the requirements of sub-

section (4) of Section 164. This case too has no application at

all to the facts of the present case for two reasons \026 firstly, in

this case too the appellant remained in police custody for a

week and secondly, it is a case in which the recording

Magistrate neither explained to the accused that he was not

bound to make a confession and if he did so, it might be used

against him nor satisfied himself upon questioning the

accused that the confession was being voluntarily made. In

the case on hand, PW 62 in his evidence has stated that he did

ask the accused the question whether she was under any

pressure, threat or fear and only after satisfying himself that

she was not under any, that he proceeded on to record her

confessional statement.

Therefore, in view of our above discussion, the three

decisions relied upon by the learned counsel for the accused

in the cases of Nazir (supra), Preetam (supra) and Tulsi

(supra) are of no help to the accused.

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In the case of Babu Singh [supra], reliance on which has

been placed by Mr. Tulsi, appearing on behalf of the appellant

in Crl. Appeal No.895 of 2005, a 3-Judge Bench of this Court,

while dealing with the question whether non-compliance of the

provisions of Section 164 or Section 364 [Section 281 of the

new Code] is a defect which could be cured by Section 533

[Section 463 of the new Code] observed at page 759 thus:-

"\005\005\005.Section 533(1) lays down that if

any Court before which a confession

recorded or purporting to be recorded

under Section 164 or Section 364 is

tendered or has been received in evidence

finds that any of the provisions of either

of such sections have not been complied

by the magistrate recording the

statement, it shall take evidence that

such person duly made the statement

recorded; and it adds that

notwithstanding anything contained in

Section 91 of the Indian Evidence Act,

1872 such statement shall be admitted if

the error has not injured the accused as

to his defence on the merits. Mr. Khanna

contends that the magistrate has in fact

given evidence in the trial court and the

evidence of the magistrate shows that the

statement has been duly recorded; and

he argues that unless it is shown that

prejudice has been caused to the accused

the irregularity committed by the

magistrate in not complying with Section

364(3) will not vitiate the confessions nor

will it make them inadmissible. There is

some force in this contention\005... But for

the purpose of the present appeals we are

prepared to assume in favour of the

prosecution that the confessions have

been proved and may, therefore, be

considered on the merits if they are

shown to be voluntary and that is the

alternative argument which has been

urged before us by Mr. Rana."

After observing that the confessions were duly recorded,

the Bench proceeded to discern from the factual matrix of the

case whether the confessions were voluntary or not and taking

note of three unusual features qua the confession recorded,

namely, (1) that the accused was kept in the police custody

even after the substantial part of the investigation was over;

(2) that the confession so recorded did not indicate as to how

much time the accused was given by the magistrate before

they made their confessions and (3) that the magistrate who

recorded the confession had taken part in assisting the

investigation by attesting recovery memos in two cases, the

confessional statement of the accused was excluded from

consideration. It was observed at page 764 thus:

"\005...Having regard to these features of the

case we are not prepared to uphold the finding

of the High Court that the confessions made by

the appellants can be safely treated to be

voluntary in the present case. If the

confessions are, therefore, excluded from

consideration it is impossible to sustain the

charge of murder against either of the two

appellants. In a case where the charge of

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murder was founded almost exclusively on the

confessions it was necessary that the High

Court should have considered these relevant

factors more carefully before it confirmed the

conviction of the appellants for the offence

under Section 302 and confirmed the sentence

of death imposed on Babu Singh. In our

opinion, if the confessions are left out of

consideration, the charge of murder cannot be

sustained\005.."

The three unusual features noticed by the Bench in Babu

Singh [Supra] impelled the learned Judges to exclude from

consideration the confessional statement made before the

magistrate by the accused after having observed that the

confession was admissible in evidence. As the charge of

murder was founded exclusively on the confession, both the

accused persons were acquitted of the charge under Section

302/34 IPC.

In our view, the factual matrix in Babu Singh [supra] was

distinct from the one with which we are dealing. In Babu

Singh, both the accused remained in police custody for a long

time and even after the substantial portion of the investigation

was over. If one were or held to be in police custody, question

of pressure, threat or fear would arise. We have already held

that in the facts and circumstances of the present case, A-1

cannot be said to be in police custody during her

hospitalization and, therefore, question of her being

pressurized, threatened or put under any kind of fear does not

arise.

In the case of State of U.P. v. Singhara Singh & Ors.,

AIR 1964 SC 358, a 3-Judge Bench of this Court observed that

if the confession is not recorded in proper form as prescribed

by Section 164 read with Section 281, it is a mere irregularity

which is curable by Section 463 on taking evidence that the

statement was recorded duly and has not injured the accused

in defence on merits. It was observed at page 362 thus:-

"What S.533 (Section 463 of the new

Code), therefore, does is to permit oral

evidence to be given to prove that the

procedure laid down in S. 164 had in fact

been followed when the court finds that

the record produced before it does not

show that that was so. If the oral

evidence establishes that the procedure

had been followed, then only can the

record be admitted. Therefore, far from

showing that the procedure laid down in

S. 164 is not intended to be obligatory,

S.533 (Section 463 of the new Code)

really emphasises that that procedure

has to be followed. The section only

permits oral evidence to prove that the

procedure had actually been followed in

certain cases where the record which

ought to show that does not on the face

of it do so."

In the light of the above discussion, we are of the view

that Ext.187 is admissible, having been recorded according to

the procedure prescribed under law and the same is voluntary

and truthful.

Turning now to the medical evidence, Dr. Sanjay Sheoran

[PW.1], Dr. R.S. Dalal, [PW.2], and Dr. Arun Gupta [PW.15],

who conducted the autopsy on the dead bodies of the

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deceased, have opined that the injuries found on the persons

of the deceased were ante mortem in nature, were sufficient to

cause death in ordinary course of nature and that injuries

could be caused with the iron rod. We have already referred to

the testimony of PW 57 wherein he stated that he had seen A-

1 removing the iron rod from the store room at the place of

occurrence on the night of 23rd August, 2001 which iron rod

was recovered from the bed of A-1 at the place of occurrence

by the prosecution. The medical evidence that injuries could

be caused with the iron rod, the statement of PW.57 that he

had seen A-1 removing the iron rod from the store room at the

place of occurrence and its recovery from the bed of A-1 leave

no scope for any doubt about the veracity of the prosecution

case as against A-1. Finding of bloodstains on the salwar of A-

1 and its matching with the blood group of deceased Sunil and

Lokesh further strengthens the case of the prosecution.

Insofar as other submissions made by learned counsel

appearing on behalf of the accused qua ante-timing of FIR,

tampering of Exts. 193 and 194 and non-lifting of finger prints

are concerned, we need hardly add anything to the exhaustive

discussion in the elaborate judgments rendered by the trial

court and the High Court while dealing with identical

submissions.

As a result of our above discussion, we hold that the

case against A-1 has been proved by the prosecution beyond

reasonable doubt and, therefore, order of conviction of A-1

passed by the trial court and upheld by the High Court is

unassailable.

We now proceed to consider the case of Sanjiv [A-2],

husband of A-1, whose case revolves around the

circumstantial evidence, apart from extra-judicial confessions

made by him to Sunder Singh, PW 48 and Dr. Rajni Gandhi,

PW.17, the result of the polygraph test and the recoveries

made at his instance.

Insofar as circumstantial evidence as against A-2 is

concerned, the courts below have very elaborately discussed

the material produced by the prosecution while accepting each

of the circumstances. In the normal course, there would have

been no need for us to go into these circumstances as

elaborately as was done by the two courts below in an appeal

filed under Article 136 of the Constitution of India, especially

when the finding qua conviction is concurrent. However,

taking into consideration that the accused were awarded death

sentence by the trial court, which has been converted into life

imprisonment by the High Court, and that the case in hand is

one of circumstantial evidence, we think it appropriate and in

the interest of justice to reappreciate the evidence.

The principle for basing a conviction on the basis of

circumstantial evidence has been indicated in a number of

decisions of this Court and the law is well settled that each

and every incriminating circumstance must be clearly

established by reliable and clinching evidence and the

circumstances so proved must form a chain of events from

which the only irresistible conclusion about the guilt of the

accused can be safely drawn and no other hypothesis against

the guilt is possible. This Court has clearly sounded a note of

caution that in a case depending largely upon circumstantial

evidence, there is always a danger that conjecture or suspicion

may take the place of legal proof. The Court must satisfy itself

that various circumstances in the chain of events have been

established clearly and such completed chain of events must

be such as to rule out a reasonable likelihood of the innocence

of the accused. It has also been indicated that when the

important link goes, the chain of circumstances gets snapped

and the other circumstances cannot in any manner, establish

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the guilt of the accused beyond all reasonable doubts. It has

been held that the Court has to be watchful and avoid the

danger of allowing the suspicion to make the place of legal

proof, for some times unconsciously it may happen to be a

short step between moral certainty and legal proof. It has been

indicated by this Court that there is a long mental distance

between 'may be true' and 'must be true' and the same divides

conjectures from sure conclusions.

In the light of the above principle, which principle has

been reiterated in a series of pronouncements of this Court,

we proceed to ascertain whether the prosecution has been able

to establish a chain of circumstances so as not to leave any

reasonable ground for the conclusion consistent with the

innocence of the accused.

The first circumstance in the chain is the presence of A-2

at Hisar. A-1 in her judicial confession made to PW.62 has

stated that she along with A-2 had gone to the Jindal Public

School to pick deceased Priyanka @ Pamma for celebrating her

birthday at the Kothi at Litani Mor, the place of occurrence.

A-1 has further stated that while they were returning, due to

some altercation between A-1 and A-2 which ensued after

Priyanka @ Pamma informed A-2 of infidelity that A-1 was

having with someone, A-2 got down of the vehicle at Hisar and

went away and did not return. That getting down of A-2 on

the way after the altercation was a part of the plan hatched by

A-1 and A-2 to give a slip to the investigating agency to

mislead it, is discernable from the evidence of Paramjeet

Singh, PW.12, who owns a Fast Food and Bakery Shop at

Camp Chowk, Hisar. In his evidence, he has stated that on

23.8.2001, A-1 accompanied by a man and a girl visited his

shop and that the accompanying girl was calling the man as

"Jijaji". That A-2 did not alight from the vehicle on the way

and was with A-1 all the time could be elicited from the

statement of A-1 made to PW.62, relevant portion of which is

reproduced below:

"\005\005At about 9 p.m. he [A-2] alighted

from the vehicle at Hisar itself and

started saying that he is having no need

of her and I alone go to my home. I

waited for 5/10 minutes that he would

come back, but he did not turn up. After

that I along with my sister came to our

house at Punia Farm House \026 Kothi at

Litani Mor. We reached at about 10.00

p.m. in the Kothi. This is the talk of night

of 23.8.2001. We purchased six pastries

from the shop of Hisar for home. We,

the three ate two pastries on the shop

itself.

This fact is further supported by the statement of Ishwar

Singh, PW.30, who in his testimony has stated that on

23.8.2001 he had seen A-1 along with her sister and one

another person between 9-9.30 p.m. purchasing fruits from a

rehri at Barwala and that person was Sanjiv whom he has

identified in Court. The trial court as well as the High Court

have relied on the evidence of PW.12 and PW.30 after giving

cogent reasons therefor. In view of the evidence of PW.12 and

PW.30 and the confession of A-1 [Ext. 187], we are of the view

that the prosecution has been able to establish that A-2

accompanied A-1 to the place of occurrence in the night of 23rd

August, 2001.

Insofar as participation of A-2 in the crime along with A-1

is concerned, our attention has been drawn to a photograph in

which deceased Shakuntala is lying dead on the floor with her

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mouth, hands and feet tied which is indicative of the fact that

before she was killed, she had shown resistance and in order

to overpower her, her mouth, hands and feet were tied. By no

stretch of imagination it could be perceived that tying of

mouth, hands and feet of a person could be possible by one

person. It would not have been possible for A-1 alone to tie

mouth, hands and feet herself which further establishes the

fact of presence of A-2 at the place of occurrence and his

having participated in the crime along with A-1. This is the

second circumstance in the chain which stands established

and points a finger towards none other than A-2 of his having

participated in the crime with A-1.

We now turn to the third circumstance and i.e., A-2's

clandestine exit from the place of occurrence. We once again

turn to the judicial confession made by A-1 to PW.62 wherein

she has admitted having left the place of occurrence in the

morning of 24th August and returning to it after half an hour,

which fact stands proved from the statements of PWs.57 and

58 as well. Head Constable Dharam Singh, PW.46, who was

on patrolling duty at Surewala Chowk, has also stated in his

testimony that he saw A-1 driving Tata Sumo at a very fast

speed and going towards Narwana Chowk. There was no

reason for A-1 to leave the place of occurrence in the morning

of 24th August after having taken a decision to end her life by

consuming poison. Her leaving the place of occurrence and

coming back after half an hour to that very place lends further

support to the evidence of PWs. 57 and 58. That she initially

thought of ending her life in accident and that is why she left

the place of occurrence in the morning in Tata Sumo and

having decided against it on the way and returned to the place

of occurrence after half an hour does not inspire confidence at

all. Therefore, in the absence of any infirmity in the evidence

of PWs. 57, 58 and 46, which evidence is supported by none

other than A-1 in her judicial confession made to PW.62, the

third circumstance stands also proved by the prosecution.

In order to establish that A-1 had left the place of

occurrence in the morning to take A-2 out therefrom in a

clandestine way and leave her at a sufficient distance so as to

be not seen by anyone, we have also been taken through the

evidence of Head Constable Dharambir Singh [PW 46],

conductor Jai Singh [PW.39], Rajesh Kumar [PW.55], Jai Dev

Hans, [PW 45], Rajinder Parshad [PW 43] and K.A. Khan [PW

3]. PW. 46 in his testimony has stated that while he was on

patrolling duty at Surewala Chock, he saw A-1 driving a

vehicle at a very fast speed coming from Barwala side and

going towards Narwana Chowk. PW.39, who was the

conductor of the bus that was plying on Hisar to Yamuna

Nagar route, in his testimony, has stated that on 24th August,

2001 Bus No. HR 39/7090 started its journey from Hisar at 5

A.M. and that when it reached near Jajanwala, A-2, who was

wearing pant and bushirt with a bag in his hand, boarded the

bus and that he took the ticket from him for Kaithal. He has

further stated that A-2 alighted from the bus at Kaithal. A-2

has been identified by this witness in Court. Rajesh Kumar,

PW.55, a taxi driver, in his testimony has stated that on

24.8.2001 when he was at the taxi stand at Kaithal, A-2 hired

his taxi at 7.30 a.m. for going to Panipat and that at that time

he was carrying a bag on his shoulder. He has further stated

that on the way A-2 got down from the Taxi at Jaidev STD

Booth at Kaithal to make a call to Saharanpur and that after

making the call he boarded the taxi again and was dropped by

him at Panipat. PW.45, who owned STD Booth at Kaithal, in

his deposition has confirmed the factum of A-2 having made a

telephone call from his STD booth on the morning of 24th

August at Saharanpur on telephone No. 729285. He has also

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identified A-2 in Court. That A-2 made a call at 7.20 a.m. on

24th August from the STD Booth of PW.45 on telephone No.

0132-729285 has been confirmed by PW.43 \026 Rajinder

Parshad, SDE of Telephone Exchange, Kaithal, on the basis of

list of outgoing telephone calls made from the said STD Booth

in his testimony. K.A. Khan, Divisional Engineer, Telephones,

at Saharanpur, in his testimony has stated that telephone No.

729285 on which A-2 made call from Kaithal stands in the

name of Sanjiv Kumar. Analysis of evidence of the aforesaid

witnesses leads to only one conclusion that A-1 had left the

place of occurrence in the morning of 24th August along with

A-2 so as to provide him a safe exit and to give a slip to the

prosecution. This is the fourth circumstance that the

prosecution has been able to establish.

The fifth and the last circumstance in the chain on which

the prosecution has relied is the recovery of ash of the

bloodstained clothes of A-1 and A-2 which were burnt by A-2

and chain and two buttons of the bag he was carrying to

which we now advert. During interrogation, A-2 disclosed that

after the occurrence his and A-1's bloodstained clothes were

put by him in a plastic bag and those were burnt by him in the

fields near village Bhainswal. The police party thereafter was

taken to the place where A-2 had burnt his and A-1's

bloodstained cloths and plastic bag from where the police

team recovered the ash, chain and two buttons of the burnt

plastic bag. The fact that A-2 was carrying a bag in his hand

on 24th August, 2001 finds mention in the statements of PWs.

39 and 55. Therefore, in view of the recovery of ash of the

bloodstained clothes and that of the bag at the instance of A-2,

in our view, the prosecution has been able to establish this

last link also in the chain of circumstances.

We now turn to the extra-judicial confession made by A-2

to Sunder Singh, PW.48, which, in the submission of learned

counsel appearing on behalf of the accused, having been made

to a stranger, cannot be relied upon. PW.48 \026 Sunder Singh,

in his testimony, has stated that on receiving a message from

Brahm Singh, cousin of A-1's mother, on 17.9.2001, he went

to Shamli and met Brahm Singh, who told him that Relu Ram

and his family have been killed by both A-1 and A-2. After

some time, A-2 also reached there and told PW.48 that he and

his wife have killed the entire Relu Ram family with iron rod

and the reason given for committing the crime was that Relu

Ram was not parting with the share of A-1 in the property. A-

2 also told PW.48 about his clandestine entry to and exit from

the place of occurrence. On a suggestion made by PW.48 to A-

2 to surrender before the police, A-2 promised him that he

would come on 19th September, 2001. PW.48 thereafter

informed the police about the incident on 17th September

itself. On 19th September, 2001 Brahm Singh and PW.48

produced A-2 at PWD Rest House, Panipat before DSP

Mahender Singh and he was arrested. PW. 48, in his

testimony, has stated that A-2 himself told him about his

clandestine ingress to and egress from the Kothi at Litani Mor

by hiding himself in the middle seat of the vehicle and that he

was dropped by A-1 at Village Jajanwala on Narwana Road in

the morning. The confession made to PW.48 is supported by

the fact that the weapon used in the crime i.e., tractor rod,

mention of which has been made by A-2 in his confession to

PW.48, was found on the bed of A-1 and on the disclosure

statement made by A-2 to the police, the ash of the

bloodstained clothes of his and A-1 and that of the bag

containing the said clothes was also recovered.

Learned counsel appearing on behalf of the accused has

submitted that PW.48 being a stranger to A-2 and Brahm

Singh, who was not examined by the prosecution on the

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pretext of having been won over, having been remotely

connected to PW.48 no reliance should be placed on the

confession made by A-2 before PW.48. In our view, the

submission has been made only to be rejected for the reason

that in his testimony PW.48 has stated that he had attended

the betrothal ceremony and marriage of A-2. Therefore,

question of his being stranger to A-2 does not arise. However,

it is well settled by a catena of decisions rendered by this

Court that extra-judicial confession made even to a stranger

cannot be eschewed from consideration if it is found to have

been truthful and voluntarily made before a person who has

no reason to state falsely. In the case of Gura Singh vs. State

of Rajasthan, (2001) 2 SCC 205, the evidentiary value to be

attached to the extra-judicial confession has been explained at

page 212 thus:-

"It is settled position of law that extra-judicial

confession, if true and voluntary, it can be relied

upon by the court to convict the accused for the

commission of the crime alleged. Despite inherent

weakness of extra-judicial confession as an item of

evidence, it cannot be ignored when shown that

such confession was made before a person who has

no reason to state falsely and to whom it is made in

the circumstances which tend to support the

statement. Relying upon an earlier judgment in Rao

Shiv Bahadur Singh v. State of Vindhya Pradesh,

AIR 1954 SC 322, this Court again in Maghar Singh

v. State of Punjab, (1975) 4 SCC 234, held that the

evidence in the form of extra-judicial confession

made by the accused to witnesses cannot be always

termed to be a tainted evidence. Corroboration of

such evidence is required only by way of abundant

caution. If the court believes the witness before

whom the confession is made and is satisfied that

the confession was true and voluntarily made, then

the conviction can be founded on such evidence

alone. In Narayan Singh v. State of M.P., (1985) 4

SCC 26, this Court cautioned that it is not open to

the court trying the criminal case to start with a

presumption that extra-judicial confession is always

a weak type of evidence. It would depend on the

nature of the circumstances, the time when the

confession is made and the credibility of the

witnesses who speak for such a confession. The

retraction of extra-judicial confession which is a

usual phenomenon in criminal cases would by itself

not weaken the case of the prosecution based upon

such a confession. In Kishore Chand v. State of

H.P., (1991) 1 SCC 286, this Court held that an

unambiguous extra-judicial confession possesses

high probative value force as it emanates from the

person who committed the crime and is admissible

in evidence provided it is free from suspicion, and

suggestion of any falsity. However, before relying on

the alleged confession, the court has to be satisfied

that it is voluntary and is not the result of

inducement, threat or promise envisaged under

Section 24 of the Evidence Act or was brought about

in suspicious circumstances to circumvent Sections

25 and 26. The Court is required to look into the

surrounding circumstances to find out as to

whether such confession is not inspired by any

improper or collateral consideration or

circumvention of law suggesting that it may not be

true. All relevant circumstances such as the person

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to whom the confession is made, the time and place

of making it, the circumstances in which it was

made have to be scrutinized. To the same effect is

the judgment in Baldev Raj v. State of Haryana, AIR

1991 SC 37. After referring to the judgment in Piara

Singh v. State of Punjab, (1977) 4 SCC 452 this

Court in Madan Gopal Kakkad v. Naval Dubey

(1992) 3 SCC 204 held that the extra-judicial

confession which is not obtained by coercion,

promise of favour or false hope and is plenary in

character and voluntary in nature can be made the

basis for conviction even without corroboration."

Examined in the light of the enunciation of law as above,

we are of the view that the testimony of PW.48 as regards the

confession made by A-2 is such as to inspire confidence in our

minds. Indisputably, extra-judicial confession was made by A-

2 to PW.48 prior to his arrest by the police and, therefore,

question of it being made under any inducement, threat or

promise does not arise. Moreover, there was absolutely no

reason for PW 48 to unnecessarily implicate the accused, as

he had no animus against him.

In view of our above discussion, we see no reason to

disbelieve the evidence of PW.48 and hold that A-2 made

extra-judicial confession which is voluntary and truthful.

Insofar as motive qua the crime committed is concerned,

it is clearly borne out from the factual matrix of the case on

hand that both the accused had an eye on the property of

deceased, Relu Ram, which was in crores and in order to gain

full control over the property and to deprive deceased Relu

Ram from giving it to anybody else, both the accused persons

have eliminated his whole family. We have been taken through

the extra-judicial confession made by A-2 to PW. 48 wherein

he has indicated that as deceased Relu Ram was not parting

with the share of A-1 in the property, both A-1 and A-2

together have done to death his whole family. Therefore, the

motive qua the crime committed stands proved in the present

case.

We now turn to the extra-judicial confession made by A-2

before Rajni Gandhi, PW.17, wherein also A-2 stated that he

and A-1 had murdered the deceased persons.

Indisputably, the extra-judicial confession that A-2 has

made to PW.17 on 24th and 25th September, 2001 was made

while he was in police custody, having been arrested on

19.9.2001. It is apt to reproduce the relevant portion of the

statement made by PW.17 in her deposition which is to the

following effect:

"\005. On 24.9.2001 police brought Sanjeev

Kumar\005. for lie detection test. After that

myself and Sanjeev Kumar accused

conversed with each other in a room/library

of the FSL Madhuban. Police went away at

that time. \005After completing the formalities

that is of consent etc., I called for the police

to take both the persons for lunch as by that

time, lunch interval has started and it was

necessary for a person not to be hungry while

going through the lie detection test. \005. When

Sanjeev Kumar was taken by the police for

lunch on 24.9.2001, he was again brought

after lunch interval. Then Sanjeev Kumar

was put on polygraph machine. Lie Detection

test continued for one and a half hour.

During that process, Sanjeev Kumar used to

stop his breathe voluntarily and on that

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account, Lie Detection Test could not be

made on that day. I asked Sanjeev Kumar as

to why he was doing, he told me that he was

purposely doing it. Thereafter Sanjeev

Kumar was brought before me on 25.9.2001

because on that day it was not possible to go

through the lie detection test\005.. On

25.9.2001 Sanjeev Kumar was brought by

the police at 9.30 a.m. in the office of FSL\005".

The above statement of PW.17, therefore, clearly depicts

that A-2 was brought by the police to Forensic Science

Laboratory [FSL], Madhuban, for the lie detection test on

24.9.2001 and when she conversed with him the police party

went away. On her saying, A-2 was taken by the police for

lunch and thereafter brought back to the FSL. As Lie

Detection Test [LDT] was not possible on 24th September, A-2

was again brought to FSL by the police on 25th September on

which day the LDT was conducted.

Learned counsel appearing on behalf of the accused

submits that temporary disappearance of the police from the

scene leaving the accused in charge of a private individual

does not terminate his custody and, therefore, the extra-

judicial confession made by A-2 to PW.17 having been made in

police custody is inadmissible as it is hit by Section 26 of the

Evidence Act which provides that any confession made by any

person while he is in the custody of a police officer, unless it

be made in the immediate presence of a Magistrate, shall not

be proved as against such person. In support of his

submission, reliance has been placed on Kishore Chand vs.

State of H.P [(1991) 1 SCC 286].

In Kishore Chand [supra], the question that arose

before this Court was whether extra-judicial confession made

by an accused to a Village Pradhan, in the company of whom

the accused was left by the police officer after apprehending

him, could be said to have been made while in police custody.

While answering the question in the affirmative, a 2-Judge

Bench of this Court at page 295 held as under:-

"The question, therefore, is whether the

appellant made the extra-judicial

confession while he was in the police

custody. It is incredible to believe that

the police officer, PW.27, after having got

identified the appellant by PW.7 and

PW.8 as the one last seen in the company

of the deceased would have left the

appellant without taking him into

custody\005.. Therefore, it would be

legitimate to conclude that the appellant

was taken into the police custody and

while the accused was in the custody, the

extra-judicial confession was obtained

through PW.10....".

Indisputably, A-2 was arrested on 19th September, 2001

and on 24th and 25th September when he was taken for the

LDT he was in police custody and it was at that point of time

he made extra-judicial confession to PW.17 at which point of

time police personnel went away from the scene temporarily.

Therefore, in the light of the decision rendered in Kishore

Chand [supra], we are of the opinion that extra-judicial

confession made by A-2 to PW.17 is hit by Section 26 of the

Evidence Act, it having been made by A-2 while in police

custody and, consequently, cannot be admitted into evidence

and, therefore, has to be eschewed from consideration.

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However, even the exclusion of extra-judicial confession made

by A-2 before PW.17 would be of no help to this accused as we

are of the view that the prosecution has succeeded in proving

its case beyond reasonable doubts against A-2 on the basis of

circumstantial evidence enumerated above as well as extra-

judicial confession made by A-2 before PW.48.

Insofar as the Polygraph [Lie Detection] Test which was

conducted on A-2 is concerned, Mr. Sushil Kumar submits

that since polygraph evidence is not subject of expert evidence

as per Sec. 45 of Evidence Act being a science in mystique, it

could at best be used as an aid to investigation and not as an

evidence. In support of his submission, he has relied on

Romeo Phillion and Her Majesty The Queen, (1978) 1 SCR

18 and R. v. Beland, (1987) 2 SCR 398, which are decisions

rendered by the Canadian Supreme Court, and on Mallard v.

Queen, 2003 WASCA 296, a decision of the Australian

Supreme Court. Mr. Tulsi, on the other hand, submits that

the result of Polygraph Test can be used against the accused.

As there are other materials sufficient for upholding conviction

of A-2, we refrain ourselves from going into the question of

admissibility or otherwise of the result of Polygraph Test in the

present case.

Having held that both A-1 and A-2 are guilty of murder of

deceased Relu Ram and his family and that their conviction

under Section 302 read with Section 34 and Section 120-B

and other provisions inflicted upon them by both the courts

below does not call for any interference by this Court, we now

proceed to decide whether the instant case is one of rarest of

rare cases warranting death sentence, as has been held by the

trial court to be one, or the one in which sentence of life

imprisonment would be appropriate, as has been held by the

High Court while commuting the sentence of death to life

imprisonment.

Learned counsel appearing on behalf of the accused

submitted that the present case cannot be said to be rarest of

the rare one so as to justify imposition of extreme penalty of

death. This question has been examined by this Court times

without number. In the case of Bachan Singh v. State of

Punjab, [1980] 2 SCC 684, before a Constitution Bench of this

Court validity of the provision for death penalty was

challenged on the ground that the same was violative of

Articles 19 and 21 of the Constitution and while repelling the

contention, the Court laid down the scope of exercise of power

to award death sentence and the meaning of the expression

`rarest of the rare' so as to justify extreme penalty of death and

considered that Clauses (1) and (2) of Article 6 of the

International Covenant on Civil and Political Rights to which

India has acceded in 1979 do not abolish or prohibit the

imposition of death penalty in all circumstances. All that they

required is that, firstly, death penalty shall not be arbitrarily

inflicted; secondly, it shall be imposed only for most serious

crimes in accordance with a law, which shall not be an ex post

facto legislation. The Penal Code prescribes death penalty as

an alternative punishment only for heinous crimes, which are

not more than seven in number. Section 354(3) of the Criminal

Procedure Code, 1973 in keeping with the spirit of the

International Covenant, has further restricted the area of

death penalty. Now according to this changed legislative

policy, which is patent on the face of Section 354(3), the

normal punishment for murder and six other capital offences

under the Penal Code, is imprisonment for life (or

imprisonment for a term of years) and death penalty is an

exception. The present legislative policy discernible from

Section 235(2) read with Section 354(3) is that in fixing the

degree of punishment or making the choice of sentence for

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various offences, including one under Section 302, Penal

Code, the Court should not confine its consideration

"principally" or merely to the circumstances connected with

the particular crime, but also give due consideration to the

circumstances of the criminal. In many cases, the extremely

cruel or beastly manner of the commission of murder is itself a

demonstrated index of the depraved character of the

perpetrator. And it is only when the culpability assumes the

proportion of extreme depravity that "special reasons" can

legitimately be said to exist. Judges should never be

bloodthirsty. It is, therefore, imperative to voice the concern

that courts, aided by the broad illustrative guidelines

indicated, will discharge the onerous function with evermore

scrupulous care and humane concern, directed along the

highroad of legislative policy outlined in Section 354(3), viz.,

that for persons convicted of murder, life imprisonment is the

rule and death sentence an exception.

In the case of Machhi Singh v. State of Punjab, (1983) 3

SCC 470, a 3-Judge Bench of this Court following the decision

in Bachan Singh (supra), observed that in rarest of rare cases

when collective conscience of the community is so shocked

that it will expect the holders of the judicial power centre to

inflict death penalty irrespective of their personal opinion as

regards desirability or otherwise of retaining death penalty.

The community may entertain such a sentiment in the

following circumstances:

I. When the murder is committed in an extremely

brutal, grotesque, diabolical, revolting or dastardly

manner so as to arouse intense and extreme

indignation of the community. For instance,

(i) when the house of the victim is set aflame with

the end in view to roast him alive in the house, (ii)

when the victim is subjected to inhuman acts of

torture or cruelty in order to bring about his or her

death; and (iii) when the body of the victim is cut

into pieces or his body is dismembered in a fiendish

manner.

II. When the murder is committed for a motive

which evinces total depravity and meanness. For

instance when (a) hired assassin commits murder

for the sake of money or reward or (b) a cold-

blooded murder is committed with a deliberate

design in order to inherit property or to gain control

over property of a ward or a person under the

control of the murderer or vis-a-vis whom the

murdered is in a dominating position or in a

position of trust, or (c) a murder is committed in the

course for betrayal of the motherland.

III. (a) When murder of a member of a Scheduled

Caste or minority community etc., is committed not

for personal reasons but in circumstances etc.,

which arouse social wrath. For instance when such

a crime is committed in order to terrorise such

persons and frighten them into fleeing from a place

or in order to deprive them of, or make them

surrender, lands or benefits conferred on them with

a view to reverse past injustices and in order to

restore the social balance. (b) In cases of 'bride

burning' and what are known as 'dowry deaths' or

when murder is committed in order to remarry for

the sake of extracting dowry once again or to marry

another woman on account of infatuation.

IV. When the crime is enormous in proportion. For

instance when multiple murders say of all or almost

all the members of a family or a large number of

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persons of a particular caste, community, or

locality, are committed.

V. When the victim of murder is (a) an innocent

child who could not have or has not provided even

an excuse, much less a provocation, for murder (b)

a helpless woman or a person rendered helpless by

old age or infirmity (c) when the victim is a person

vis-a-vis whom the murderer is in a position of

domination or trust (d) when the victim is a public

figure generally loved and respected by the

community for the services rendered by him and the

murder is committed for political or similar reasons

other than personal reasons.

In the said case, the Court further observed that in this

background the guidelines indicated in the case of Bachan

Singh (supra) will have to be culled out and applied to the

facts of each individual case and where the question of

imposing death sentence arises, the following proposition

emerge from the case of Bachan Singh (supra):-

(i) The extreme penalty of death need not be

inflicted except in gravest cases of extreme

culpability.

(ii) Before opting for the death penalty the

circumstances of the 'offender' also require to

be taken into consideration along with the

circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death

sentence is an exception. In other words death

sentence must be imposed only when life

imprisonment appears to be an altogether

inadequate punishment having regard to the

relevant circumstances of the crime, and

provided, and only provided, the option to

impose sentence of imprisonment for life

cannot be conscientiously exercised having

regard to the nature and circumstances of the

crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating

circumstances has to be drawn up and in

doing so the mitigating circumstances have to

be accorded full weightage and a just balance

has to be struck between the aggravating and

the mitigating circumstances before the option

is exercised.

The Court thereafter observed that in order to apply

these guidelines the following questions may be answered:-

(a) Is there something uncommon about the crime

which renders sentence of imprisonment for

life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that

there is no alternative but to impose death

sentence even after according maximum

weightage to the mitigating circumstances

which speak in favour of the offender?

Ultimately, in the said case of Machhi Singh (supra), the

Court observed that if upon an overall global view of all the

circumstances in the light of the aforesaid proposition and

taking into account the answers to the questions posed

hereinabove, the circumstances of the case are such that

death sentence is warranted, the Court would proceed to do

so.

In the light of the law already laid down by this Court

referred to above, now this Court is called upon to consider

whether the present case would come within the realm of the

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rarest of the rare or not.

The instant case is one wherein accused Sonia, along

with accused Sanjiv [her husband] has not only put an end to

the lives of her step brother and his whole family, which

included three tiny tots of 45 days, 2-1/2 years and 4 years,

but also her own father, mother and sister in a very diabolic

manner so as to deprive her father from giving the property to

her step brother and his family. The fact that murders in

question were committed in such a diabolic manner while the

victims were sleeping, without any provocation whatsoever

from the victims' side indicates the cold-blooded and

premeditated approach of the accused to cause death of the

victims. The brutality of the act is amplified by the grotesque

and revolting manner in which the helpless victims have been

murdered which is indicative of the fact that the act was

diabolic of most superlative degree in conception and cruel in

execution and that both the accused persons are not

possessed of the basic humanness and completely lack the

psyche or mind set which can be amenable for any

reformation. If this act is not revolting or dastardly, it is

beyond comprehension as to what other act can be so. In view

of these facts we are of the view that there would be failure of

justice in case death sentence is not awarded in the present

case as the same undoubtedly falls within the category of

rarest of rare cases and the High Court was not justified in

commuting death sentence into life imprisonment.

In the result Criminal Appeal No. 142 of 2006 filed by the

accused persons is dismissed whereas Criminal Appeal No.

895 of 2005 filed by private prosecutor and Criminal Appeal

No. 894 of 2005 filed by the State of Haryana are allowed,

order passed by the High Court commuting death sentence

into life imprisonment is set aside and order of the trial court

awarding death sentence is restored.