Holding

The murders constitute a "rarest of rare" case; the death sentences imposed by the trial court are upheld and the High Court's commutation to life imprisonment is set aside.

Summary

The Supreme Court examined the murder of a family of ten, including three infants, committed by A‑1 (Sonia) and her husband A‑2 (Sanjiv) to prevent the transfer of property to the step‑brother. The trial court convicted them under Sections 302, 34 and 120‑B IPC and sentenced them to death, a decision the High Court later commuted to life imprisonment. The Court held that the judicial confession of A‑1 was validly recorded under Section 164, the extrajudicial confessions of A‑2 were admissible, and the circumstantial evidence formed a complete chain proving guilt. Applying the "rarest of rare" doctrine, the Court found the murders diabolically brutal, pre‑meditated and motivated by property greed, warranting the death penalty. Consequently, the High Court’s commutation was set aside and the death sentences were restored.

Issues considered

The admissibility of A‑1's judicial confession recorded under Section 164 CrPC and whether any procedural defect is curable under Section 463.
The admissibility of A‑2's extrajudicial confessions, especially those made while in police custody, under Section 26 of the Evidence Act.
The sufficiency and reliability of circumstantial evidence to sustain conviction under Sections 302, 34 and 120‑B IPC.
Whether the case falls within the "rarest of rare" category justifying the death penalty.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 281, s. 354(3), s. 463
Indian Evidence Act, 1872s. 24, s. 26
Indian Penal Code, 1860s. 120-B, s. 302, s. 34

Subjects

murderdeath penaltyrarest of rarecircumstantial evidencejudicial confessionextrajudicial confessionpolice custodyproperty disputeSection 164 CrPCSection 302 IPC

Judgment

RAM SINGH
A
v.
SONIA AND ORS.

FEBRUARY 15, 2007

[B.N. AGRA WAL AND P.P. NAOLEKAR, JJ.] B

- Penal Code, 1860: Section 302 rlw Sections 34 and 120-B.

Murder-'Rarest of rare' cases-Death sentence-Imposition of-
Justification-Extrajudicial confession-Circumstantial evidence-Accused C
A-1 (daughter) along with her husband accused A-2 had not only murdered
her step brother and his whole family, which included three children of 45
days, 2 112 years and 4 years but also her own father, mother, sister and
sister-in-law while they were sleeping so as to prevent her father from giving
the property to her step brother and his family-Trial court convicted the D
accused persons on the basis of confession and circumstantial evidence and
imposed sentence of death on them-However, High Court commuted the
death sentence into life imprisonment-Correctness of-Held: The fact ~hat
the 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 E
to cause the death of the victims-The act was diabolic of the most superlative
degree in conception and cruel in execution and that both the accused
persons were not possessed of the basic humanness and completely lack the
psyche or mindset which could be amenable for any reformation-This is an
act which is not only revolting but also dastardly-The case ~ndoubtedly
i.' F
falls within the category of 'rarest of rare' cases-Hence, High Court .not
justified in commuting the death sentence into life imprisonment-High Court
judgment set aside and that of the trial court restored-Code of Criminal
Procedure, 1973, Ss. 164 and 463.

According to the prosecution, when PW-57, one of the employees of the G
deceased, and A-2 were sitting at the saw mill located by the side of a farmhouse
of the deceased, a telephone call was received by A-2 from A-1 conveying her
desire to celebrate the birthday of her deceased sister and that she would bring
her from the school in which she was studying. At about 9.30 pm, A-1 along

651 H
RAM SINGH v. SONIA 653
Sections 34 and 120-B of the Penal Code, 1860 and sentenced them to death. A
The High Court, while upholding their convictions, had commuted the sentence
-of death into life imprisonment. Hence the appeals.

On behalf of the accused persons, it was contended that A-I was forced
to write the suicide note after having been tortured in police custody; that the
judicial confession made by A-I to PW-62 was not recorded according to the B
procedure prescribed by Section 164 of the Code of Criminal Procedure, 1973
which could not be cured by Section 463 Cr.P.C.; that A-I was kept under
y
' direct or indirect police surveillance and, therefore, she was in police custody
when she made the confession; that the hospital record was tampered with;
that the fingerprints from the iron rod used to commit the crime were not
lifted and that the FIR was ante timed. C
Allowing the appeal filed by the State and dismissing the appeal filed by
the accused persons, the Court

HELD:I. There is overwhelming evidence to show the presence of A-1
at the place of occurrence on the intervening nights on the day of the incident. D
., . 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. The view taken by the trial court and the High Court is the correct
one. [Para 12] (663-G; 664-A)
E
2. A bare perusal of the 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-l 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 F
A-l'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 there is no reason to disbelieve G
their testimony. (Para 14) [664-C, D, E]

3.1. 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 statecl 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 H
654 SUPREME COURT REPORTS (2007) 2 S.C.R.

A on record to show that in order to keep any direct or indirect vigil on the
movements of A-1 the police 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. [Para 15J
[665-B, C, DJ
B 3.2. In the absence of any evidence to show that from the moment of A-
1's admission to, and discharge from, the hospital the police personnel were
either present in the room wherein she 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 A-1 's movements were restricted or she was kept in some sort of
C direct or indirect police surveillance and that she was in police custody for
the purpose of Section 26 of the Evidence Act, 1872. [Para 17] [666-B, C, DJ

Pllramhansa Jadab v. State, AIR (1964) Ori 144, held inapplicable.

4. A-1 was admitted to the hospital as a suspected case of poison and,
therefore, she was declared to be unfit to make any statement. The prosecution
D rightly sent for PW-62 for recording the dying declaration of A-1. [Para 21J
[667-E, FJ ' ...
5. It is evident from the certificate appended to the confessional statement
by PW-62, the Judicial Magistrate, that the confessional statement was made
by the accused voluntarily. Of course, he failed to record the question that
E 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
F was available even within the precincts of the hospital, the said defect is cured
by Section 463 of the Code of Criminal Procedure, 1973 as the mandatory
requirem'ent provided under Section 164(2) Cr.P.C., 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
G established from the certificate appended to the statement and from the
~vidence of PW-62. Therefore, the judicial confession having been recorded
according to the procedure set out in Section 164 read with Section 281 and J-...

the defect made while recording the same being curable by Section 463, it is
admissible in evidence. [Para 23J [668-F, G, H; 669-A, BJ
'•

H State of UP. v. Singhara Singh, AIR (1964) SC 358, relied on.
RAM SINGH v. SONIA 655
Balbir Singh v. State of Punjab, [1963! 3 SCR 749, referred to. A
Nazir Ahmadv. King Emperor, AIR (1936) PC 253, Preetam v. State of
MP., (1996] 10 SCC 432 and Tutsi Singh v. State of Punjab, [1996] 6 SCC
63, held inapplicable.

6. The medical evidence that the injuries could be caused with the iron B
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-
I 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 the deceased further strengthens the case of the
prosecution. [Para 34] [674-D, E] c
7. The case against A-1 has been proved by the prosecution beyond a
reasonable doubt and, therefore, the order of conviction of A-1 passed by the
trial court and upheld by the High Court is unassailable. [Para 36] [674-G]

8. The principle for basing a conviction on the basis of circumstantial D
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
r' 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 E
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 F
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 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 G
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. [Para 39] [675-C, D, E, F, G]

9.1. In view of the evidence of PW-12 and PW-30 and the confession of H
+
656 SUPREME COURT REPORTS (2007] 2 S.C.R.

A A-1, the prosecution has been able to establish that A-2 accompanied A-1 to +-
the place of occurrence in the night of the incident. (Para 42) (676-G]

9.2. One of the deceased was lying dead on the floor with her 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
B 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 the mouth, hands and feet
herself which further establishes the fact of the presence of A-2 at the place )
I
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
c a finger towards none other than A-2 of his having participated in the crime
with A-1. [Para 43) [677-A, B, C)

9.3. There was no reason for A-1 to leave the place of occurrence in the
morning of the incident after having taken a decision to end her life by
consuming poison. Her leaving the place of occurrence and coming back after
D half an hour to that very place lends further support to the evidence of PWs
57 and 58. T_hat she initially thought of ending her life in accident and that is
. ~

why she left the place of occurrence in the morning in a jeep 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
E 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. [Para 44)
(677-D, E, F]

10. A-1 had left the place ofoccurrence in the morning of the day of the
incident along with A-2 so as to provide him a safe exit and to give a slip to
F
the prosecution. This is the fourth circumstance that the prosecution has been }-
able to establish. (Para 45] (678-E]

II. In view of the recovery of ash of the bloodstained clothes and that of
the bag at the instance of A-2, the prosecution has been able to establish this
link also in the chain of circumstances. [Para 46] (678-H)
G
12.1. The extrajudicial confession made by A-2 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-
I and on the disclosure statement made by A-2 to the police, the ash of the
H bloodstained cloths of his and A-1 and that of the bag containing the said cloths
RAM SINGH v. SONIA 657
was also recovered. (Para 471 [679-E, Fl
A
--t
12.2. Indisputably, extrajudicial 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 a rise. Moreover, there was
absolutely no reason for PW-48 to unnecessarily implicate the accused, as
he had no animus against him. [Para 49) [681-C, DI B
Gursa Singh v. State of Rajasthan, [20011 2 SCC 205, relied on.

1. Rao Shiv Bahadur Singh v. State of Vindhya Pradesh v. State of Punjab,
AIR (1964) SC 322, Maghar Singh v. State of Punjab, [1975) 4 SCC 234,
Narayan Singh v. State of MP., [19851 4 SCC 26, Baldev Raj v. State of c
Haryana, AIR (1001) SC 37, Piara Singh v. State of Punjab, [19771 4 SCC
452 and Madan Gopal Kakkadv. Naval Dubey, [1992) 3 SCC 204, relied on.

13. 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 the decPased, which was in crores and in order D
to gain full control over the property and to deprive the deceased from giving
J • it to anybody else, both the accused persons have eliminated his whole family.
.,. A-2, in his extrajudicial confession made to PW-48, has indicated that as the
deceased 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
E
the crime committed stands prov~d in the present case. [Para 51) (681-E, Fl

14. The extrajudicial confession made by A-2 to PW-17 is hit by Section
26 of the Evidence Act, 1872, 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. However, even the exclusion of the F
extrajudicial confession made by A-2 before PW-17 would be of no help to
this accused as 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 the extrajudicial confession made by A-2 before
PW-48. [Para 571 683-D, E, Fl
G
Kishore Chand v. State of H.P., [1991) 1 SCC 286, relied on.
~
15. As there are other materials sufficient for upholding the conviction
of A-2 the question of admissibility or otherwise of the result of the Polygraph
(Lie Detection) Test conducted on A-2 is not gone into. [Para 58) (684-A)
H
658 SUPREME COURT REPORTS [2007] 2 S.C.R.

Romeo Phil/ion and Her Majesty The Queen, [1978] 1 SCR 18, R. v.
A +-
Beland, [1987] 2 SCR 398 and Mallard v. Queen, (2003) WASCA 296,
[
referred to.

16. The instant case is one wherein the accused A-1, along with the
accuse4 A-2 (her husband) has not only put an end to the lives of her step
B brother and his whole family, which included three tiny tots of 45 days, 21/2
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 the 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
c approach of the accused to cause the 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 the most superlative degree in conception and cruel i.n execution
and that both the accused persons are not possessed of the basic humanness
D and completely lack the psyche or mindset 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, 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 ofrare' cases and the High "'
Court was not justified in commuting the death sentence into life
E imprisonment. [Para 66] [687-F, G, H; 68~A, B, Cl

Baldev Singh v. State of Punjab, [1980) 2 SCC 684 and Machhi Singh
v. State of Punjab, [1983] 3 SCC 470, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 895 of
F 2005.

From the final Judgment and Order dated 12.4.2005 of the High Court
of Punjab and Haryana at Chandigarh, in Criminal Appeal No. 556-DB/2004
and Murder Reference No. 3/2004.

G WITH

Crl. A. No. 894 of2005 & Crl. A. No. 142 of2006. ~.

K.T.S. Tulsi, Sushi! Kumar, U.U. Lalit, Prem Malhotra, Rishi Malhotra,
Manish K. Saryal, Gaurave Bhargava, Atriar Dey, Lal Bahadur, Vinay Arora,
H
.. ~
RAM SINGH v. SONIA [B.N.AGRA WAL, J.]

Adolf Mathew, Sudershan Singh Rawat, Mukesh Kumar, Sanjay Jain, Aditya
659

Kumar, Rajeev Gaur, 'Naseem', Nitin Sangra and T.V. Geroge, for the appearing
A
parties.

The Judgment of the Court was delivered by

B.N. AGRAWAL, J. 1. Sonia [A-I] and Sanjiv [A-2], respondents in B
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 ['!PC' for short] and sentenced to death and to pay a fine of Rs. 2000/
y
~ - 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 c
Section 20 I 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-I and A-2 were eight other accused persons
but they were acquitted by the trial court for want of evidence. The order of D
convictions and sentences gave riJe 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
f under Section 302 read with Section 34 and Section 120-B of the !PC and other
provisions, the High Court has commuted the sentence of death into life
imprisonment. Hence these appeals by special leave. E
2. While Criminal Appeal Nos. 895 of2005 and 894 of2005 have been
preferred by Ram Singh, brother of deceased - Relu Ram, and the State of
Haryana respectively for enhancement of sentence from life imprisonment to
death, Criminal Appeal No.142 of2006 is by the accused assailing the impugned
judgment of their convictions and sentences .
F
..I,

3. 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 G
[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
..,.l
Hisar the school she was stu_dying in. At about 9.30 p.m. A-1 along with
Priyanka reached home in a jeep. Thereafter, between 11 - 12 p.m., on hearing ·
some noise of footsteps, PW 57, who was present at the Farm House, woke
H
660 SUPREME COURT REPORTS (2007] 2 S.C.R.

A 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- I 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
B went to sleep. PW 57 further stated that on 24.8.200 I at about 4.45 a.m. when
he was sitting on his cot, he saw A- I 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-I 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
C [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
D 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
E the room on the previous night was lying on the bed of A-1. Noticing a letter
[Suicide Note 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
F 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-I 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.
G 4. 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 UlkanaPolice Station at 8.15 a.m. by PW 59
wherein contents of Suicide Note were also reproduced.
H \
RAM SINGH v. SONIA [B.N.AGRA WAL, J.] 661

5. On completion of the investigation, chargesheet was submitted against
-t A
A-1, A-2 and eight other accused persons, cognizance taken and they were
committed to the court of Sessions to face trial.

6. Defence of the accused persons was that they were innocent and
falsely implicated. The stand taken by A- I was that she was picked up by
the police of CIA Staff on 24th August from Faridabad and was brought to B
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
r' killed and thereafter they forcibly obtained her signatures on blank papers.
A-2 took the defence, inter a/ia, that he was falsely implicated at the instance
of the employees ofRelu 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 c
they who had committed the murder of Relu R.im and his family members.

7. So far as A-I is concerned, the prosecution case principally rests on
(I) the Suicide Note [Ext. 227] alleged to have been written by her wherein
she admitted having murdered eight persons, including three tiny tots, who
D
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)
-r
bloodstained clothes of A-1, blood group of which tallied with the blood
group of deceased Sunil and Lokesh.
E
8. 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.
-~
F
9. Mr. Sushi! 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- I 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
G
- ,)'
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- I to Pardeep Kumar, Judicial Magistrate, Ist
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 H
662 SUPREME COURT REPORTS [2007] 2 S.C.R.

A i.e., admissibility and truthfulness as the approach of the recording magistrate -t"-
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 reco;ding the statement and not its non-compliance. In support
B 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 MP., [I996] 10 SCC 432, and Tutsi 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
c to ~he 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. v. State, AIR {1964) Orissa
D 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. .,.

JO. On the other hand, Mr.K.T.S. Tulsi, learned senior counsel appearing
E 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
F further submitted by Mr. Tulsi that insofar as judicilll 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
ofa 3-Judge Bench of this Court in the case of Babu Singh v. State of Punjab,
G [1963] 3 SCR 749. Adopting the line of argument identical to that of Mr. Tulsi,
r'
Mr. U.U. Lalit, learned senior counsel appearing on behalf of the State,
submitted that even ifthere 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. .....
H
RAM SINGH v. SONIA [B.N.AGRAWAL,.l.] 663
11. We shall first deal with the Suicide Note alleged!y written by A-1. A
i
PW-57 the informant - 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 B
reproducing its contents therein.
, 12. So far as presence of A-I 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 c
they had seen A- I 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, D
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-I 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 E
reaching the spot and seeing A- I 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-I 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 F
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. Sushi! 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 cha.rt G
._._.....t, of the hospital bears the signature of PW.64. Therefore, there is overwhelming
evidence to show the presence of A- I at the place of occurrence on the
intervening night of 23rd and 24th August and in the early hours of 24th
August, 200 I. 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
H
664 SUPREME COURT REPORTS [2007] 2 S.C.R.

A of the same. We have on our own considered the evidence on the point and t
we are satisfied that the view taken by the trial court and the High Court is
correct one.

13. 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
B fabricated one. In order to verify the handwriting on the Suicide Note to be
that of A-1, on 10.9.2001 Sl-Ajit Singh [PW 27] moved an application before
· Balraj Singh [PW.26], the then SOM, Hisar, for taking specimen signature and
handwriting of A-I, which were taken and sent to FSL, Madhuban for analysis.
According to the report submitted by FSL, Madhuban, in this regard, the
C handwriting on the Suicide Note tallied with the specimen handwriting.
14. A bare perusal of Suicide Note which was addressed by A- I 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-I has admitted having written it immediately
D 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
E 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
thatthe Suicide Note was fabricated has to be rejected.

15. This takes us to the next submissioq made by Mr. Sushil Kumar that
F movements of A-1 having been restricted since the time of her removal to the
hospital until her formal arrest on 26th August, 200 l, she was kept under r-
direct or indirect police surveillance and, therefore, as per legal position, she
was U!Jder police custody. In support of this submission, he has relied on
Paramhansa Jadab & Anr. v. The State, AIR (1964) Orissa 144, a decision
of a Division Bench of Orissa High Court. We have been taken .~hrough the
G evidence of PW 25, Dr. Jagdish Sethi [PW.521 and PW 62. PW.25 has stated
in his evidence that on his arrival at the place of occurrence, he saw A-I lying
in front of the main door under the porch of the first floor of the house from x..,, •.
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
H Casuality Medical Officer at the Janta Hospital, Barwala. In his statement,
RAM SINGH v. SONIA [B.N.AGRA WAL, J.] 665
PW.52 has stated that at the time of her admission to the hospital, A- I was A
unfit to make any statement. PW.62 in his evidence has stated that at the time
of recording of confessional statement of A- I, 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. B
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-I towards the end has written
that after finishing them all she was ending her life. PW.52 has also stated C
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 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 D
personnel made frequent visits to the hospital, thereby restricting A-1 's
"' '
movement.

16. 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 E
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 p
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:

" ..... in the circumstances of this case I would hold that Paramhansa
was in police custody for the purpose of Section 26 of the Evidence G
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. 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
H
666 SUPREME COURT REPORTS (2007] 2 S.C.R.

the Police van were left there. Thus there was indirect control and
A +--
surveillance over the movements of the appellant by the police ... "

17. 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
B 10 minutes of lodgment of the FIR and PW.25, being aware of the fact that
A-I had consumed poison and under instructions, seeing A-I lying in front
of the porch, removed her to the hospital. PW.52 having opined that A-I 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-I was recorded and in
C 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-I 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
D 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.

18. 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-
E I 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-I is according to the procedure prescribed by these provisions
or whether any violation thereof has been made by the magistrate while
F recording it. The relevant Sections in the Cr.P.C. are Sections 164, 281and463.

19. 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
G 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 r
foot of such record to the following effect:

H "I have explained to [name] that he is not bound to make a confession
RAM SINGH v. SONIA (B.N.AGRA WAL, J.] 667
and that, if he does so, any confession he may make may be used as A
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] B
Magistrate"

20. Sub-section (I) 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 C
recording magistrate, it may, notwithstanding anything contained in section
9 I 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.
D
21. 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
Lt' 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 E
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 F
for recording dying declaration of A-1.

22. 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. G
23. On 24th August, 2001, upon receipt of an application moved by
Superintendent of Police for recording dying declaration of A-I by a magistrate,
DSP Man Singh, who partly investigated the case, approached the Chief
Judicial Magistrate, Hisar, who, in tum, marked the said application to Pardeep H
j

668 SUPREME COURT REPORTS (2007] 2 S.C.R.

A 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-
l 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
B 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-I 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-I volunteered to make the statement ) '
and only thereafter the statement was recorded by PW.62. In the cet1ificate
C that was appended to the said confessional statement PW.62 has very
categorically stated that he had explained to A-I 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
D full and true account of the statement made by her. It has been further stated
by PW.62 in his ~vidence 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,
E which he started at I 0.53 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 understanrling
each aspect. It also appears that he was satisfied that she was not under any
press~re from any comer. Therefore, it is evident from the certificate appended
F 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
G any corner, that in the room in which the said confessional statement was
recorded it was pnly 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
H not bound to make a statement and if a statement is made the same might be
RAM SINGH v. SONIA [B.N.AGRA WAL, J.] 669
used against him has been complied with and the same is established from A
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. B
24. 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 164 relating to C
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 D
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
sam.e effect as that prescribed in section 164 and, in particular, stating that
the Magistrate believed that the statements were voluntarily made. As there E
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 F
Section 164. Wheri 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 G
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
H
I'

+
670 SUPREME COURT REPORTS [2007] 2 S.C.R.

A and the answer given by A-1. In his evidence before the Court, PW.62 stated
that he asked A- I 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.
Jn our view, Nazir [supra] has no application to the facts of the present case
B as the failure of PW.62 to record the question put and the answer gjven in
the confessional statement has not caused prejudice to the accused in her
I
defence and is a defect that is curable under Section 463.

25. 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
C 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
D 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. Pree/am (supra)
is a case where the accused remained in police custody for six days immediately
E before the recording of his confession by the Magistrate and, therefore, could
be said to have been pressurized, tortured and harassed 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-
F I 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 .1--
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
G her. PW 62 in his evidence has stated that it was only after administering the
above caution and satisfying himself that A- I was making the statement
voluntarily that he proceeded on to record h~r 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-I, or in the hospital.
H Therefore, in the absence of any evidence to show that she was under direct
RAM SINGH v. SONIA [B.N.AGRA WAL, J.] 671

or indirect vigil of the police authorities during her hospitalization and she A
--"\· 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
B
pressure from any corner that he recorded her confessional statement. In the
certificate that was appended to the confessional statement as well, PW 62
r 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 c
statement.

26. Similarly, in the case of Tutsi 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 u~ed against him, nor did he put any question to him to satisfy D
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
f
sentence recorded against the accused under Section 302 lPC, held that the
special court was not at all justified in entertaining the confession as a
E
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 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 F
-f 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.
G
27. Therefore, in view of our above discussion, the three decisions
•· . .X 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.

28. In the case of Babu Singh [supra], reliance on which has been
H
672 SUPREME COURT REPORTS [2007] 2 S.C.R.

A placed by Mr. Tutsi, appearing on behalf of the appellant in Cr!. Appeal
No.895 of2005, 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:-

B "...... Section 533(1) lays down that if any Court before which a
, l confession recorded or purporting to be recorded under Section 164
or Section 364 is tendered or has been received in evidence finds that

c
.. 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
~

''
-
I

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
D 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 ... But for the purpose of the present appeals
we are prepared to assume in favour of the prosecution that the
E 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."

29. After observing that the confessions were duly recorded, the Bench
F 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, (I) 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
G 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 x .~
at page 764 thus:

" ... Having regard to these features of the case we are not prepared to
H
RAM SINGH v. SONIA [B.N.AGRA WAL, J.] 673
uphold the finding of the High Court that the confessions. made by A
._.+
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 murder was founded almost
exclusively on the confessions it was necessary that the High Court
should have considered these relevant factors more carefully before
B
it confirmed the conviction of the appellants for the offence under
Section 302 and confirmed the sentence of death imposed on Babu
r Singh. In our opinion, if the confessions are left out of consideration,
the charge of murder cannot be sustained .."

30. The three unusual features noticed by the Bench in Babu Singh
c
[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. D

.. 31. 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
y
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 E
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.

32. In the case of State of U.P. v. Singhara Singh & Ors., AIR (1964)
F
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:- G
"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 H
674 SUPREME COURT REPORTS [2007] 2 S.C.R.

A 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."
B
33. 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. '{

34. Turning now to the medical evidence, Dr. Sanjay Sheoran [PW. I], Dr.
C R.S. Dalal, [PW.2], and Dr. Arun Gupta [PW.15], who conducted the autopsy
on the dead bodies of the deceased, have opined that the injuries found on
the persons of the deceased were ante mortem in nature, were sufficient to
caus<>, 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
D 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, 200 I which iron rod
was recovered from the bed of A-I 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
E 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.

F 35; Insofar as other submissions made by learned counsel appearing on
behalfofthe.accused qua ante-timing of FIR, tampering ofExts. 193 and t94
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.

36. As a result of our above discussion, we hold that the case against
G
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.

37. We now proceed to consider the case of Sanjiv [A-2], husband of
H A-1, whose case revolves around the circumstantial evidence, apart from
RAM SINGH v. SONIA [B.N.AGRA WAL, J.] 675
extra-judicial confessions made by him to Sunder Singh, PW 48 and Dr. Rajni A
Gandhi, PW.17, the result of the polygraph test and the recoveries made at
his instance.

38. 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, B
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 C
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.

39. 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 D
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, E
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, F
the chain of circumstances gets snapped and the other circumstances cannot
in any manner, establish 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 G
distance between 'may be true' and 'must be true' and the same divides
~>... conjectures from sure conclusions.

40. 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 H
+ ~.
676 SUPREME COURT REPORTS [2007] 2 S.C.R. L
A 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.

41. The first circumstance in the chain is the presence of A-2 at Hisar.
A-I in her judicial confession made to PW.62 has stated that she along with
B 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- I has further stated that while they were returning, due to some altercation

c
between A-land A-2 which ensued after Priyanka@ Pamma informed A-2
of infidelity that A- I 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-I 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-
I accompanied by a man and a girl visited his shop and that the accompanying
D girl was calling the man as "Jijaji". That A-2 did not alight from the vehicle
on the way and was with A-I all the time could be elicited from the statement
of A-I made to PW.62, relevant portion of which is reproduced below:
•
·~
" ... At 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
E 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 Kothi at Litani Mor. We reached at about 10:00
p.m. in the Kothi. This is the talk of night of23.8.2001. We purchased
six pastries from the shop of Hisar for home. We, the three ate two
F pastries on the shop itself
i }--
42 .. 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-I
along with her sister and one another person between 9-9.30 p.m. purchasing
r--
fruits from a rehri at Barwala and that person was Sanjiv whom he has
G 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-I to the place ofoccurrence in the night of 23rd August, I-
2001.
H
RAM SINGH v. SONIA (B.N.AGRA WAL, J.) 677

43. Insofar as participation of A-2 in the crime along with A-1 is A
concerned, our attention has been drawn to a photograph in which deceased
Shakuntala is lying dead on the floor with her 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 B
and feet of a person could be possible by one person. It would not have been
possible for A-1 \jlone 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. C
44. 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 admit+ed 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. D

' . ,. 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-I 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 E
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 F
evidence of PWs. 57, 58 and 46, which evidence is supported by none other
than A-I in her judicial confession made to PW.62, the third circumstance
stands also proved by the prosecution.

45. 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 G
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-I driving H
678 SUPREME COURT REPORTS [2007] 2 S.C.R.

A 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, 200 I Bus No. HR 39/7090 started its journey from Hisar at 5 A.M.
and t~at 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
B 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 24.8.200 I 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
C 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
a
made telephone call from his STD booth on the morning of 24th August at
Saharanpur on telephone No. 729285. He has also identified A-2 in Court.
D 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 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
E 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- I 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.
F
46. 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-I 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 interrngation, A-2 disclosed
G 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- I'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
H mention in the statements of PWs. 39 and 55. Therefore, in view of the
RAM SINGH v. SONIA [B.N.AGRA WAL J.] 679

~· recovery of ash of the bloodstained clothes and that of the bag at the A
instance of A-2, in our view, the prosecution has been able to establish this
last link also in the chain of circumstances.

47. 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. B
PW.48 Sunder Singh, in his testimony, has stated that on receiving a message
from Brahm Singh, cousin of A-1 'smother, on 17.9.2001, he went to Shamli
'r and met Brahm Singh, who told him that Relu Ram and his family have been
killed by both A-I 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
c
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, 200 I. PW.48 thereafter informed the police
about the incident on 17th September itself. On 19th September, 200 I Brahm D
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-I at Village Jajanwala on Narwana Road in the
E
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-I 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. F
~

48. 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 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 G
to be rejected for the reason that in his testimony PW.48 has stated that he
- J.
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 H
680 SUPREME COURT REPORTS [2007] 2 S.C.R.

A have been truthful and voluntarily made before a person who has no reason
to state falsely. In the case of Gura Singh v. State ofRajasthan, [200 I] 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
B 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
c which tend to support the statement. Relying upon an earlier judgment
in Rao Shiv Bahadur Singh v. Stale of Vindhya Pradesh, AIR (1954)
SC 322, this Court again in Maghar Singh v. Stale of Punjab, [1975]
4 sec 234, held that the evidence in the fomi 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
D 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 ofM.P., [I985] 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
E 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
F based upon such a confession. In Kishore Chand v. State of H.P.,
[1991] I 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
G
' be satisfied that it is ·;oluntary and is not the result of inducement,
threat or promise eqvisaged 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
circumstance' to find out as to whether such confession is not inspired
H · by any improper or collateral consideration or circumvention of law
RAM SlNGHv. SONIA [B.N.AGRAWAL, .1.) 681
suggesting that it may not be true. All relevant circumstances such A
as the person 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 sec 204 held that the extra-judicial confession B
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."

49. Examined in the light of the enunciation of law as above, we are of C
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. D
50. 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.

51. Insofar as motive qua the crime committed is concerned, it is clearly E
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 F
-{ made by A-2 to PW. 48 wherein he has indicated that as deceased Relu Ram
was not parting with the share of A-I in the property, both A-I and A-2
together have done to death his whole family. Therefore, the motive qua the
crime committed stands proved in the present case.

52. We now turn to the extra-judicial confession made by A-2 before G
Rajni Gandhi, PW.17, wher~in also A-2 stated that he and A-I had murdered
the deceased persons.

53. Indisputably, the extra-judicial confession that A-2 has made to
PW .17 on 24th and 25th September, 200 I was made while he was in police
custody, having been arrested on 19.9.2001. It is apt to reproduce the relevant H
682 SUPREME COURT REPORTS [2007) 2 S.C.R.

A portion of the statement made by PW.17 in her deposi(ion which is to the
following effect:

" ..... On 24.9.2001 police brought Sanjeev Kumar. 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
B time. After 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. . 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
c 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 account, Lie Detection Test could 11-0t 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
D brought before me on 25.9.2001 because on that day it was not
possible to go through the lie detection test.. On 25.9.2001 Sanjeev
Kumar was brought by the police at 9.30 a.m. in the office of FSL" .

. 54. The above statement of PW. 17, therefore, clearly depicts that A-2 "i
was brought by the police to Forensic Science Laboratory [FSL ], Madhuban,
E 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.
F , 55. Learned counsel appearing on behalf of the accused submits that
1 )-
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
G 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 v. State of H.P.,
[1991] I SCC286.

H
RAM SINGH v. SONIA [B.N.AGRA WAL J.] 683
56. In Kishore Chand [supra], the question that arose before this Court A
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:-
B
"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 C
custody .. 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.IO....".

57. Indisputably, A-2 was arrested on 19th September, 2001 and on 24th D
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.
r 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 E
custody and, consequently, cannot be admitted into evidence and, therefore,
has to be eschewed from consideration. 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 F
evidence enumerated above as well as extra-judicial confession made by A-
f 2 before PW.48.

58. Insofar as the Polygraph [Lie Detection] Test which was conducted
on A-2 is concerned, Mr. Sushi! Kumar submits that since polygraph evidence
is not subject of expert evidence as per Sec. 45 of Evidence Act· being a G
science in mystique, it could at best be used as an aid to investigation and
,. A not as an evidence. In support of his submission, he has relied on Romeo
Phil/ion and Her Majesty The Queen, [1978) 1SCR18 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
H
684 SUPREME COURT REPORTS [2007] 2 S.C.R.

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

B 59. 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

c
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
i
-
the one in ·which sentence of life imprisonment would be appropriate, as has
been helq by the High Court while commuting the sentence of death to life
imprisonment.

60. Learned counsel appearing on behalf of the accused submitted that
D 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

E
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 (I) 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
F 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
G 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 A,, ..... ~

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
H present legislative policy discernible from Section 235(2) read with Section
RAM SINGH v. SONIA [B.N.AGRA WAL, .I.] 685
354(3) is that in fixing the degree of punishment or making the choice of A
sentence for 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 B
culpability assumes the proportion of extreme depravity that "special reasons"
can legitimately be said to exist. Judges should never be bloodthirsty. It is,
y 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 c
oflegislative policy outlined in Section 354(3), viz., that for persons convicted
of murder, life imprisonment is the rule and death sentence an exception.

61. 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 D
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, E
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)
F
-f when the body of the victim is cut into pieces or his body is
dismembered in a fiendish manner.

ll. 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 G
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
-· ..J.
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.
H

'
686 SUPREME COURT REPORTS [2007) 2 S.C.R.

A III. (a) When murder of a member of a Scheduled Caste or minority
community etc., is committed not for personal reasons but in f-
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
B i 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.
c 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 persons of a particular caste, community, or locality,
are committed.

V. When the victim of murder is (a) an innocent child who could not
D 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
E the services rendered by him and the murder is committed for political
or similar reasons other than personal reasons.

62. 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
F 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
G
'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
H
RAM SINGH v. SONIA [B.N.AGRA WAL, J.] 687
having regard to the relevant circumstances of the crime, and A
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 B
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
r. before the option is exercised .

63. The Court thereafter observed that in order to apply these guidelines C
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 D
but to impose death sentence even after according maximum
weightage to the mitigating circumstances which speak in favour
of the offender?

64. Ultimately, in the said case of Machhi Singh (supra), the Court E
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.

65. In the light of the law already laid down by this Court referred to F
above, now this Court is called upon to consider whether the present case
would come within the realm of the rarest of the rare or not.

66. 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 G
and 4 years, but also her own father, mother and sister in a very diabolic
.i 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, wi~hout any
provocation whatsoever from the victims' side indicates the cold-blooded and H
688 SUPREME COURT REPORTS [2007] 2 S.C.R.

A premeditated apprnach 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
B amenabl~ 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 l

category of rarest of rare cases and the High Court was not justified in
c commuting death sentence into life imprisonment.

67. In the result Criminal Appeal No. 142 of2006 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
D life imprisonment is set aside and order of the trial court awarding death
sentence is restored.
,_
v.s.s. Crl.A.No. 895 of2005, 894 of2005 allowed
'(

and Cr!. A. No. 142 of 2006 dismissed.

. :
.!:..··

' f