Patna High Court
Nand Kishore Singh And Anr. vs State Of Bihar And Ors. on 28 March, 1991
Equivalent citations: 1991(39)BLJR953
JUDGMENT S. Hyder Shoukat Abidi, J.
1. As both the appeals have been heard together both are being disposed of by this common judgment.
2. These appeals have been filed against the judgment and order dated 4-1-1984 passed by Shri Gauri Saankar Choubey, 1st Additional Sessions Judge, Gaya in Sessions Trial No. 302/10 of 1983 by which the appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.
3. The case of the prosecution is that on the night of 16/I7th of March, 1983, deceased Ram Prevesh Singh of village Rasalpur, P.S. Gaya Mufassil was sleeping over his brick kiln towards north of his village. His nephew Ram Ekbal Singh (P.W.-5) and a labourer Bishwanath Paswan were busy in putting coal in the fire place of the brick kiln at some distance towards north-east. Musafir Paswan and Chalitar Paswan. the other labourers were also sleeping over the same brick kilh distance from Ram Pravesh Singh. At about 1 a.m. there was some rustle of dry leaves towards west which attracted the attention" of Ram Ekbal Singh. Ram Ekbal Singh make enquiries whereupon reply came that they are pathera (manufacturers of bricks). Two persons are said to have climbed over the brick kiln where Ram Pravesh Singh was sleeping. One of them has a torch and the other fired from his gun putting the barrel on the chest of Ram Pravesh Singh on account of which, he died then and there. While the culprits were making good their escape, they threw a bomb which exploded. They made good their escape in darkness. The explosion attracted the attentions of Holi singing people in the village including Upendra Singh (P.W. 10) and Surendra Singh who came running. When the people reached' the victim, they found him dead on the brick kiln. The victim was sleeping thereby spreading straws covered with a chadar. Ram Ekabal Singh is said to have given out the version about the occurrence to the people. He also went to the police station which was at a distance of 4 kms. and lodged the report against unknown persons on 17-3-1983 (Ext. 3) upon which the investigation was started. The inquest was prepared, and the deadbody was seat for post mortem examination.
4. On the next bay, when the cremation of the deadbody was finished and members of the family and some villagers were sitting at the house of the victim, at about 10 p.m., some villagers came and informed that they had learnt that appellant Abhay Singh of their village has sustained some burn injuries on his person which created suspicion of his involvement in the said bomb explosion matter. Some villagers want to the house of Abhay Singh and called him out. When he came out, it was found that there were some burn injuries on his person. On the asking of the villagers that as to how he got these injuries, he confessed in the presence of the villagers that when he was sleeping, three appellants came and asked him to accompany. Then they all went to the place of the occurrence and on enquiry as who are they, they replied that they are Patheras. After that, appellant Nand Kishore Sing lighted the torch in the light of which, appellant Sheolal Tatwa fired for his gun and then Nand Kishore Singh threw a bomb on the brick kiln causing injuries to the victim. As he was also standing hear them, he got injuries also. Thereafter; according to him, they ran towards west and then south. He returned to his village with the burn injuries while the other three persons went away towards further south-west. On getting these in formations, the villagers went to search Sheolal Tantwa at his house but the nearby villagers told them that he had lef this village with his family in the morning. Then the villagers went to the house of Nand Kishore Singh and Wakil Singh where they were not found: But at Kutti, they were found and so, they were caught and brought to the house of the deceased where Abhay Singh had been brought from his house also. One Niranjan Singh (not examined) who was recorded the confessional statement of Abhay Singh (Ext. 1). Who implicated him and other accused persons. Then the vilagers took all of them to Gaya Mufassil Police Station on the same night along with the confessional statement. After getting the post morten report (Ext. 4) done by Dr. Mithlesh Kumar Sinha (P.W. 6) who had done the autopsy of the deceased and after completing the investigation, the charge sheet was submitted by Laxman Dubey (P.W. 1).
5. The accused persons, in their defence, denied the prosecution case and alleged that they have been falsely implicated in this case on account of enmity and village politics. From the suggestion, it appears that the occurrence had taken place elsewhere murder of committed by some unknown persons and thread body of the deceased had been brought to falsely implicate the accused persons. No witness, in defence, has been examined by the accused persons.
6. The prosecution, in support of its case, produced ten witnesses, P.Ws. 1, 2 and 3 Rajendra Singh, Gyas Singh, and Gulab Singh have deposed about the extra judical confession (Ext. 1) by appellant Abhay Singh. Dr. Badre Ahmad (P.W. 4) had examined the accousel Abhay Singh. On 18-3-1983 at about 1 p.m. the doctor had found five burn injuries being simple in nature and caused by explosive materials within 36 hours. His report is Ext. 2. P.W. 5 Ram Ekbal Singh is the informant and nephew of the victim who has said about the occurrence though he did not identified any of the accused persons. P.W. 6 is Dr. Mithilesh Kumar Sinha who has conducted the post mortem examination and submitted his report (Ext. 1), P.W. 7, Lakshman Dubey is the Investigating Officer in this case. P.W. 8 is Bishwanath Paswan, another eye witness. P.Ws. 9 and 10 Musafir Paswan and Upendra Singh are two other hearsay witnesses who had come after the occurrence and told about the same.
7. The learned trial court, after considering the entire material on the record, has convicted and sentenced all the appellants as said above.
8. The learned Counsel for the appellants has urged that the order of conviction passed against the appellants is based only on the extra judicial confession of appellant Abhay Singh which is not to be relied upon in this case in these circumstances. Niranjan Singh who is said to have recorded the extra juidicial confession, has not been examined nor the confession of accused Abhay Singh has been got recorded under Section 164 of the Cr. PC before the learned Magistrate. It is also said that the appellants are resident of the same village and so, the informant could have identified the accused persons by feature in the darkness when there was light of the chimney and further they could also identify the accused by voice. The informant has not identified any of the appellants and so the report is against unknown persons. The last argument was that the accusation against the accused is based on enmity and village politics. To appreciate these contentions, evidence will have to be scrutinized with care and caution.
9. Ram Ekbal Singh, P.W. 5, the informant in this case, who is also the nephew of the victim, has said that he was putting coal in the brick kiln along with his labourers and the victim was sleeping there. He heard sound of rustling whereupon he made inquiries and the reply came that they were patheras. Then he saw two persons climbing over the brick kiln near the place where the victim was sleeping and one of them lit the torch and other fired from his gun at the victim. There was an explosion of bomb causing smoke and then the accused persons ran towards west. He and the labourers began to cry and when he went to Ram Pravesh Singh, they found him dead with bleeding and injuries on his chest, Alarm was raised which attracted the villagers and after that he went to the police station and lodged the report there. He has said the same thing in his cross-examination. He has also said that he did not identified any of the accused there either by their voice or by their physical features that is why the report against unknown persons has been lodged. The next eye witness is Bishwanath Paswan (P.W. 8) who too has said the same thing as P.W. 5. He has also not identified any of the accused persons on the spot. From the evidence of these two witnesses, it appears that the occurrence has taken place at the place of occurrence in which bomb injuries were received by the victim. Post mortem examination was done by Dr. Mithilesh Kumar Sinha who too found bomb injuries which support the story of injury by bomb by the victim. The Investigating Officer has said about the place of the occurrence and his objective findings also support the versions. P.Ws. 9 and 10, Musafir Paswan and Upendra Singh who too had reached the place of the occurrence, have given out about the occurrence. Their evidence also is quite sufficient to corroborate the prosecution version on the basis of immediate disclosure to them.
10. Two things are there to connect the appellants with the offence. One is motive and the other is confessional statement of Abhay Singh. As regards motive, P.Ws. 8 and 9 have said that few days before the occurrence, these four appellants had gone to the brick kiln of the deceased and they wanted to bake their potatos which was objected by the deceased upon which there was an altercation between the deceased and the accused and appellant Vakil Singh had given out threat to the deceased. These witnesses have said that they had given out this matter to the police under Section 161 of the Cr. PC but the same does not appear to have been given out and has been said only in the court. There is no report about this threat nor the Investigation Officer, if given out under Section 161, Cr. PC to him in this behalf, has tried to investigate the matter of motive from the witnesses. Even P.W. 5 has expressed his ignorance about this motive. In these circumstances, motive is not made out to the accused to commit this offence.
11. The only evidence to fasten the guilt to the accused remains the extra judicial confession said to have been given by Abhay Singh. The confessional statement is on the record contained in the application (Ext. 1) addressed to the officer-in-charge of Gaya Mufassil police station and sent by Rajendra Singh and Gulab Singh (P.Ws. 1 and 3). Niranjan Singh, Yamuna Singh and Jamadar Singh (all not examined). This application says that on the night between 16/17th of March, 1983, Ram Pravesh Singh had been murdered on his brick kiln in sleeping. The villagers were on the look out of the murderers. On the night of 17-3-1983 at about 10 p.m. they got information that appellant Abhay Singh had received burn injuries in his stomach, chest and shoulder and he was in his house upon which they went to the house of Abhay Singh. On repeated asking he was not opening his door but when threatened to break open the door, he came out. When enquired about his injuries on his person, he gave out that Ram Pravesh Singh has been killed by appellant Sheo Lal Tantwa, Vakil Singh and Nand Kishore Singh and when he had thrown the bomb, he received injuries from its explosion and then he concealed himself in his house. On inquiry about the full details, he said that on the day of the occurrence at about 12, he was sleeping at the Kutia of the village where the aforesaid appellants came and awoke him and asked to accompsny them for some urgent work. As they were his friends, he accompanied them and when they reached near the brick kiln (bhattha) of the victim, Ram Ekbal Singh nephew of the victim and his labourers inquired as to who are they upon which Vakil Singh said that they are patheras and saying so, appellant Sheo Lal Tantwa and Nand Kishore Singh climbed up the brikch kiln. Nand Kishore Singh lighted his torch and Vakil Singh who was behind them, on his asking Sheo Lal Tatwa fired from his small gun on Ram Pravesh Singh and then Sheo Lal Tatwa and Nand Kishore Singh got down from Bhattha. In the meantime, Vakil Singh exploded the bomb at the Bhattha where he was standing there. All the four persons ran towards west. As he got bomb injuries, he came to his house and concealed himself. He said that about the injuries on his person, he gave out the version to his family members that he got such injuries by fire. Earlier than this occurrence, about 8 or 10 days back, Sheo Lai Tatwa, Nand Kishore Singh and Vakil had gone to the Bhattha for baking potatos where there was altercation and abuses between the deceased and Vakil Singh. The victim had threatened to shoot out if they will come again for baking and doing gundagardi. Vakil Singh had also given out a threat that is why, the four appellants have killed Ram Pravesh Singh. After that, the applicants of Ext. 1, went in search of Sheo Lal Tatwa and Nand Kishore Singh who were found sitting near the Kutia towards east of the village. During their apprehension they also got injuries. It was learnt that Sheo Lal Tatwa had gone with his family from the village in the night, that is why the appellants had been apprehended.
12. The application (Ext. 1) by the persons addressed to the officer in-charge containing the admission along with Abhay Singh and two other appellants were taken to police station. After that they were medically examined by Dr. Bidre Ahmad (P.W. 4) who had found the injuries on the person of Abhay Singh on 18-3-1983 at 1 a.m. There were all burn injuries over abdomen, over left hand extending to the lower part of the back of the left side from elbow to the fingers and back of arms, right thigh below right elbow and on the left thigh and all the injuries were charred. The doctor opined that the injuries were of within 36 hours and were simple in nature. The doctor had proved the injury report (Ext. 2). In cross-examination, he has said that the injuries Nos. 1 and 2 could be caused by single explosion and fire. He did not find any foreign substance such as metalic glass etc. For these injuries, the accused persons have said that the injuries have been caused by fire or burn.
13. Appellant Abhay Singh, in his statement under Section 213 of the Cr. PC has said that he was sleeping in his house, that no statement has been given by him and no statement was recorded by Niranjan Singh. He replied to the question that the witnesses and the doctors had found injuries on his person, that no such injuries had been found. No doubt, there in denial and there is no defence witness to challenge but the fact remains that appellant Abhay Singh had been examined by P.W. 4 on account of receiving injuries. The , presence of the appellant on account of his receiving injuries may be a circumstance against the accused but not clinching evidence, to hold that he was the person who had received the injuries in the said occurrence in any manner. In the case of Khushaba Maruti Sheika v. State of Maharashtra where the appellant was seen carrying a gun and cartridges in the village, he fired from his gun, he sought shelter in the house at about mid night after the explosion of the hand grenade and that he had abrasions on his person at the time of his arrest and his underwear was found to be stained with blood. The Supreme Court, in these circumstances opined that the circumstances taking singly or cumulatively do not go to show that it was he who exploded the hand grenade. The evidence was that the appellant was accompanied by four other persons out of whom some have been acquitted. At page 2478 in paragraph 12 it was held "there is nothing to rule out the possibility of the hand grenade having been exploded not by the appellant but by one of his companions. The fact that the appellant was absconder in two earlier cases would no necessarily show that it was the appellant who exploded the hand grenade and not one of his companions, For even it, the appellant was interested in preventing apprehension and might have for that object exploded the hand grenade, it is equally possible that the explosion of the hand grenade might have been the work of one of the companions of the appellant with a view to prevent the apprehension of the appellant and facilitate his escape. The presence of abrasion on the person of the appellant or of the blood stains on his underwear would not also show that it was the appellant and not one of his companions who had exploded the hand grenade.
14. As regards the confession, a confession under the Evidence Act cannot be held to mean a statement of an accused suggesting that he committed the crime. Confession must be either admitting the commission of an offence or admitting such fact which constitute the offence. The Privy Council, in the case of Narayana Swamy v. The Emperor 1939 Privy Council 47 at page 52 has said "no statement which contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which is true would negative the offence alleged to be confessed. However, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravity incriminating fact, even a conclusive incriminating fact is not by itself a confession e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession"....The definition is not contained in the Evidence Act, 1872 and in that case it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime.
The Supreme Court, in the cases of Palvtnder Kaur v. State of Punjab at page 357, State of U.P. v. Deoman Upadhyay page 1129, Aghnoo Nagesia v. State of Bihar page 123 has quoted with the approval these observations of Lord Atkin. The Supreme Court, dealing with the law of confession, in the case of Aghnoo Nagesia (supra) has observed at page 123 in paragraphs 12, 13 and 14 as follows:
Shortly put, a confession may be defined as an admission of the offence by person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence and if apart of the admission is exculpatory and part, inculpatory, the prosecution is not at liberty to use any evidence of the inculpatory part only.
(13) Now, a confession may consist of several part and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused, If the confession is tainted the taint attaches to each part of it. It is not permissible in law to separate one part and to admit in evidence as a known confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference with the accused committed the crime and though each part taken singly may not amount to a confession each on them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also, every other admission of an incriminating fact contained in the statement, is part of the confession.
(14) If proof of the confession is included by any provision of law such as Section 24, Section 25 and Section 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts, must also be excluded, unless proof of it is permitted by some other section such as Section 27 of the Evidence Act. Little substance and content would be left in Sections 24, 25 and 26 if proof of admission of incriminating facts in a confessional statement is permitted In the case of Ram Singh v. State of U.P. reported in AIR 1957 SC 152 at page 154 has observed in para 14 that "extra judicial confession are not usually considered with favour to that does not mean that such confession coming from a person who has no reason to state falsely and to whom it is made in circumstances which tend to support his statement, should not be believed.
Again in the case of Maghar Singh v. State of Punjab 1975 SC 1320 has held at page 1323 in Para 5 as follows:
The evidence furnished by extra judicial confession made by the accused to witness cannot be termed to be a tainted evidence aud if corroboration is required it is only be way of abundant caution. If the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary then in such a case conviction can be founded on such evidence alone. As was done in Rao Shiv Bahadur Singh v. State of Madhya Pradesh 1954 SCR 1098 : where their Lordships of the Supreme Court rested the conviction of the accussed on the extra-judicial confession made by him before two independant witnesses, namely, Gadkari and Perulakar. In the instant case also after perusing the evidence of P.W. 3 and P.W. 12 we are satisfied that they are independent witnesses before whom both the appellants and accused Surjit Kaur made confession of their guilt and this, therefore, forms a very important link in the chain of circustantial evidence. In our opinion, the argument proceeds on fundamentally wrong promises that the extra judicial confession is tainted evidence.
In the case of Har Dayal v. State of U.P. , the Supreme Court has further observed at page 2060 in para 27 as follows:
Even an extra-judicial confession, if proved to have been made trully and valuntarily, is an afficacious proof of guilt. The confessions or admission may by the appellant before these witnesses with regard to the act of kidnapping the boy is not of a type which is generally introduced as a bedding to bolster up a weak prosecution case.
In the case of State of U.P. v. M.K. Anthony , the Supreme Court, at page 57 in para
15 has observed as follows:
It thus appears that the extra judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about the extra judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accaused. the words spoken to by the witness are clear, unambiguous and in mistakably convey that the accused is the perpeterator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to rigorous test, the touchstone of credibility if it possess the test, the extrajudicial confession can be accepted and can be the basis of a conviction. In such a situation, to go in search of corroboration itself tend to case shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and a beyond reproach the same can be relied upon and a conviction can be founded.
In the case of Kishore Chand v. State of H.P. , the Supreme Court, at page 2145 in para 7 and 8 has observed as follows:
7. An unambiguous extra-judicial confession possesses a high probative value force as it emanate from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession, the court has to be satisfied that it is voluntarily one and does not appear to be the result of inducement, threat or promises envisaged under Section 24 of the Evidence Act or was brought about any suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvent of the law suggesting that it may not be true one. For this purpose the Court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntarily can be relied upon by the Court along with other evidence on record. Therefore, even the extra-judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstance in which it came to be made and the actual words used by the accused. Sometimes, it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insist on recording the statement by a Judicial Magistrate after administrating all necessary warnings to the accused that it would be used as evidence against him.
8. Nothing prevented P.W. 27 to take the appellant to a judicial magistrate and had his confession recorded as provided under Section 164 of the Cr. PC which possesses probative value and affords an unerring assurance to the Court. It is too incredulous to believe that for more asking to tell the truth the appellant made voluntary confession to P.W. 10 and that too sitting in a hotel. The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of P.W. 10. 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 P.W. 10 who accommodated the prosecution. Thereby we can safely reach an irrisistible conclusion that the alleged extra-judicial confession statement was made while the appellant was in police custody. It is well settled law that Sections 25 and 26 shall be considered secretly. Therefore, all operation of Section 26 of the Evidence Act, the confession made by the appellant to P.W. 10 while he was in custody of the police officer (P.W. 21) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc. Again in the case of Baldeo Raj v. State of Haryana , the Supreme Court has held at page 39 in para 9 as follows:
An extra-judicial confession, if voluntary, can be relied upon by the Court along with the other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the Court requires the witnesses to give the actual words used by the accused is nearly as possible but it is not ingredient rule that the Court should not accept evidence, if not the actual words but the substances were given. It is for the Court having regard to the credibility of the witness to accept the evidence or not. When the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence.
15. Thus, from all these it is clear that a confession made by an accused not in custody of the police can be relied upon. It has got a value of force as it is coming from the mouth of the prepatratory of crime. But for placing reliance on it, the Court will have to see that is neither suspicious nor has element of falsity. It is also to see that it has not been given by the accused on account of any prompting coercion of false hopes. The court has also to see that it has not brought out any suspicions circumstances and so the court has to see the time and place and even the manner where the confession is recorded. It may be either in the actual words given out by the accused or the substance thereof. The court is also to see that the contents of the recorded confession, must be reliable one and the persons before whom it has been given should be reliable witness. If all such considerations are there, then such a confession can be considered and relied on. But if the court finds that the evidence of the confession statement has been created to give a supporting and backing to a prosecution in which other evidence is not inspiring confidence or it has been obtained under threat, coercion, inducement, temptation and the like or that it is motivated and based on concealment of fact then it is not to be relied on or if the prosecution some-how gives it a colour of free will conclusion but in fact the prosecution has obtained it without even attempting to get it recorded before the court under Section 164 Cr. PC or before his arrest when opportunity was to get it before any other legal authority. Then, such confessions may be a suspicious and unreliable document. When a confession is got recorded before a competent Magistrate under Section 161 becomes judicial confession but when it is taken by any other persons including the magistrate in some other circumstance, it becomes extra-judicial confession. In any event, if the confession inspires confidence then reliance can be placed upon it.
16. At times, the accused making statement whether judicial or extrajudicial does not support it and goes back and denies to have given the same,, and says that it has been obtained under threat, duress, coercion, compulsion, temptation and what not and so he denies to have given such statement. The court has to judge the same. If the court, after scrutiny finds that such confession is on the basis of his voluntary and free will and is not suffering from the voice of temptation, coercion, duress, false promise etc, then the court can rely upon the same and the same can form the basis for conviction. After following the rule of prudence of corroboration, the Supreme Court, in the case of Pyare Lal Bhargava v. State of Rajasthan has observed at page 1096 in para 7 as follows:
A retracted confession may form the legal basis of the conviction when the court satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudeace. It cannot even be laid down as a inflixible rule of practice or prudence that under no circumstance such a conviction can be made without corroboration, for a court may, in a particlular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.
17. When an accused makes an exculpatory confession implicating the other accused, that sort of confession cannot be the legal basis for the conviction of other accused. The confession of an co-accused has not been defined in the Evidence Act. But if a self-inculpatory confession in support of a co-accused is there, and it is corroborated by other evidence, then this sort of confession or corroboration may be used to supplement or corroborate or support the other evidence. Such other evidence should be fulfilled the standerd of proof and should be taken support of such a weak type of evidence. The Supreme Court in the case of Nathu v. State of U.P. AIR 1986 SC 5 6, has observed at page 58 paragraph 5 as follows:
The question how far the confession of co-accused, could be treated as evidence against an accused was considered elaborately in Kashmire Singh v. State of M.P. (4) and it was held therein that such statement, were not evidence as defined in Section 3 of the Evidence Act, that no conviction could be founded thereon, but that if there was other evidence on which a conviction could be based, it can lend assurance but other evidence itself should be clinching, trustworthy and reliable.
18. In the light of these observations of the apex Court, Ext. I, application to the station officer containing the confession of the appellant Abhey Singh may be considered. The appellant was not in the custody of the police but the villagers had gone to him, threat was given by them to break-open the door and then he is said to have come out and on account of the burn injuries, he is said to have given a self inculpatory statement involving the other accused. The appellant has denied to have given such statement. The application is said to have been written by Niranjan Singh though signed by him and others. Nirajan Singh has not been examined. The other Witnesses have been examinee. The investigation was going on the basis of the FIR against unknown persons though these appellants were of the same village and well known to the informant himself. The I.O. on getting this application did not take any steps to get the statement of any of the confessed accused recorded under Section 164 of the Cr. PC which may be a ground to presume that these two witnesses deposing about the alleged confession in the night and thereafter, getting it sent to the officer-in-charge through the application, Ext. 1. This may be a device by the police to get such statement to boost up the prosecution case after the accused had gone to the police station, after arrest. The police after getting this application, Ext. 1, did not take any step for getting his statement recorded under Section 164 Cr. PC it will be legitimate to conclude that after his arrest, when the victim was taken to the police station, this application was got written by persons who signed the same and so they have accompanied the prosecution and so it is not to be relied on in view of the provisions of Section 26 of the Evidence Act. Further, there is no other witness except these two witnesses who appear to have accommodated the prosecution through Ext. 1. Their evidence also, for this reason, does not appear to be worthy of credence. Further the fact that the appellant has denied to have given any such confession statement, cannot be ignored. In these circumstances, when there is no other reliable clinching and trustworthy evidence of the prosecution to fasten the guilt to the accused, this weak evidence cannot form the basis of conviction and so, having regards to the facts and circumstances enumerated above, the appellants are entitled to get benefit of doubt. As such, they are acquitted of the charges levelled against them.
19. In the result, the appeals are allowed. The order of conviction and sentence passed against the appellants is hereby set aside. As all the appellants are on bail, they are discharged from the liabilities of their bail bonds.
Narendra Rai, J.
20. I agree.