Nathu vs State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 21 September, 1955

Coram: Venkatarama Ayyar

The judgment was delivered by Justice Venkatarama Ayyar of the Supreme Court of India. On 17 May 1952 the City Magistrate of Manipuri, Sri Nand Lal Kureel, returned home at around five in the evening and discovered that his son, Sumer Singh, who was about ten or eleven years old, was missing. After an unsuccessful search, he reported the disappearance to the police. Later that night a witness identified as PW 26 informed Sri Kureel that two individuals, Bhola and Ram Singh, had lured the boy away during the day. Acting on this information, Sri Kureel summoned Bhola, the first accused, who admitted that he and the second accused, Ram Singh, had indeed enticed the child away. Ram Singh was subsequently summoned and gave a similar admission. Sri Kureel then handed both men over to the police for further investigation. At about three in the morning on the same night Bhola and Ram Singh, together with the police, Sri Kureel and several others, were taken to an out-lying garden, where, at the direction of the two accused, the dead body of Sumer Singh was discovered inside a well. A post-mortem examination established that death had resulted from asphyxia. Both lower courts concluded that the death was not an accidental drowning but murder by strangulation, a finding that was not contested. The remaining issue before the Court was to determine who actually committed the murder.

The first and second accused were detained in the lock-up until 22 May, after which they were transferred to jail custody. On 24 May both men gave confessional statements, recorded as Exhibits P-5 and P-6, before a Special First-class Magistrate identified as PW 28. Although the statements were later withdrawn, the courts found them to be true and voluntary, and they formed the basis of the convictions together with corroborative material facts established by other evidence. In their confessions the accused recounted that, on the day preceding the incident, the appellant had instructed them to bring the deceased boy to him and had promised to pay each of them five rupees. Accordingly, on 17 May 1952 they lured the child away to an out-lying garden by telling him they might eat mangoes. While they were in the garden, the appellant arrived, tied an “angochha” around the boy’s neck, and strangled him while the two accused held the child by the hands and feet, after which they threw the body into the well. These statements were relied upon to secure the appellant’s conviction, and the appellant’s counsel argued that the statements were inadmissible and that the conviction based upon them was therefore illegal, an issue that the Court would later consider. According to the evidence of Sri Kureel, which was accepted by both lower courts, the appellant was arrested during the night between 20 and 21 May. Although the confessional statements of the first and second accused were recorded on 24 May, the appellant was released by the police immediately after his arrest and was not re-arrested until 8 June 1952. The courts noted the unusual nature of the police’s immediate release of the appellant despite the serious implications of the confessions and suggested that the police may have been reluctant to bring the actual offenders to book, a point made more significant by the fact that the fourth accused, Bagh Ali, was a dismissed head constable who faced proceedings under Section 107 of the Criminal Procedure Code.

According to the record, the appellant remained in police custody from the night of 17 May until 22 May, and it may be inferred that he was taken into custody on the night of 20 May as a result of statements made by accused 1 and accused 2. Despite this, the police released the appellant immediately after his arrest on the night of 20 May, and he was not taken into custody again until 8 June 1952. It is striking that the police chose to discharge the appellant straight after his arrest without conducting any further investigation, especially given that the confessional statements of accused 1 and accused 2, which implicated the appellant, were recorded on 24 May. Both the trial court and the appellate court explained this unusual conduct by suggesting that the local police were reluctant to bring the actual perpetrators before the law. To understand this reluctance, it is necessary to note that the fourth accused, Bagh Ali, had previously served as a head constable, had been dismissed from service, and was subjected to proceedings under Section 107 of the Criminal Procedure Code. An order dated 30 April 1952, issued by Sri Kureel, bound Bagh Ali over. Evidence in the form of Sri Kureel’s testimony indicates that Bagh Ali was tail-following the appellant thereafter, and PWs 21 and 22 confirm that Bagh Ali swore to take vengeance against Sri Kureel. Naturally, Sri Kureel suspected the fourth accused of involvement in the crime and communicated this suspicion to the police. At that time the station officer was Sri Surendra Shankar Singh (PW 32), who had known Bagh Ali since 1941 when the latter was a head constable at Agra, and the witness constable. The station officer is alleged to have been motivated to protect Bagh Ali, and it is suggested that PW 32 released the appellant on the night of 20 May and refrained from taking any further action in order to shield the fourth accused. Although PW 32 denied that he had arrested the appellant on that night, the court did not accept his testimony.

When Sri Kureel realised that PW 32 was unwilling to pursue the investigation, he lodged a complaint with the Superintendent of Police. Following this complaint, the appellant was again arrested on 8 June 1952. From that date until 7 August 1952, the appellant was detained in jail. On 7 August he was transferred for interrogation to the CID Inspector (PW 33), who had been deputed to conduct the investigation. PW 33 kept the appellant in his custody at the Krishna Talkies until 20 August. On 20 August the appellant was returned to jail, and on the following day, 21 August, he executed a dying-confession, recorded as Exhibit P-15, before PW 28. In that confession the appellant identified the fourth accused as the principal offender. In the meantime, the fourth accused had been arrested on 4 August 1952. Ultimately, all four accused were committed to the Sessions Court for trial on the charge of murder.

In the trial before the Sessions Judge, the court held that the confessions of accused one and accused two had been sufficiently corroborated by other material and therefore convicted both of them under Section 302 of the Indian Penal Code. Because the two were juveniles, being fourteen and sixteen years of age, the judge sentenced them to transportation for life rather than the death penalty. Regarding the appellant, who was the third accused, the judge found that his own confession was backed up by the testimony of witnesses identified as P.W. 13 and P.W. 15 and also by the confessions previously recorded from accused one and accused two. On that basis the appellant was also convicted under Section 302, but the court imposed the death sentence. For the fourth accused, the only evidence against him was the confession of the third accused; the court concluded that this alone was not enough to meet the standard of corroboration required, and consequently the fourth accused was given the benefit of doubt and acquitted. The third accused appealed this judgment to the High Court of Allahabad, and a reference was also made under Section 374 of the Code of Criminal Procedure seeking confirmation of the death sentence. After a detailed review of the evidence, the learned judges of the High Court agreed with the findings of the Sessions Judge, upheld the conviction of the appellant and affirmed the death penalty imposed on him. Dissatisfied with that outcome, the appellant filed a special leave petition before this Court. On behalf of the appellant, it was contended that there was no reliable evidence linking him to the murder and that his conviction was therefore unsound. The prosecution’s case consisted of three pillars: the appellant’s own confession recorded as Exhibit P-15, the testimony of witnesses P.W. 13 and P.W. 15 which the trial court had said corroborated the confession, and the confessions of accused one and accused two recorded as Exhibits P-5 and P-6. Counsel for the appellant argued that the confession in Exhibit P-15 was not voluntary, that the statements of P.W. 13 and P.W. 15 were neither trustworthy nor sufficient to corroborate the confession, and that the confessions of accused one and two could not be used as evidence against the appellant and should have been disregarded. The legal question of whether the statements of co-accused may be employed against another accused had been examined in the decision of Kashmira Singh v. State of Madhya Pradesh. That decision held that such statements are not “evidence” within the meaning of Section 3 of the Indian Evidence Act and, by themselves, cannot form the basis of a conviction; however, if there exists other independent evidence on which a conviction can rest, the co-accused’s statements may be considered as giving assurance and strengthening that independent proof. Consequently, Exhibits P-5 and P-6 are not substantive evidence on their own and may be taken into account only if there is other independent material on which to base a conviction. In the present case, the only independent material identified by the trial court was the appellant’s confession, Exhibit P-15. It was further submitted that this confession should not be acted upon because, firstly, it was not volunteered, and secondly, there was no other evidence of sufficient quality to corroborate it. The question of whether Exhibit P-15 was voluntary was thus placed before the Court for determination.

In this case, the Court observed that the appellant had been placed in the exclusive custody of the C.I.D. Inspector identified as P.W. 33 from the 7 August until the 20 August, and that the confession recorded as Exhibit P-15 was taken on the 21 August. The Court considered that such an extended period of detention immediately before the confession could, unless properly explained, render the confession involuntary. P.W. 33 did not provide any explanation for this unusual detention. Although the appellant, during cross-examination of P.W. 33, had suggested that he might have been offered bhang and liquor, shown pictures, or been promised approval as an approver, the Court noted that these allegations had been correctly dismissed as unfounded. Nonetheless, the Court emphasized that the prosecution bore the responsibility to positively demonstrate the voluntariness of the confession, which required proof of the circumstances surrounding this extraordinary measure. Because no such evidence was offered, the Court was unable to accept Exhibit P-15 as a voluntary confession. The Court also rejected the argument that better evidence could not be produced due to the half-hearted and perfunctory investigation conducted by P.W. 32 before P.W. 33 assumed the case on 18 July 1952. While acknowledging the unfortunate result of the inadequate investigation, the Court held that this shortcoming did not remedy the defect inherent in Exhibit P-15. Further, although the lower courts had found the confession voluntary and the appellant had argued that the Court should not disturb that finding on special appeal, the Court noted that those courts had failed to address the lack of explanation by P.W. 33 for the appellant’s separate custody, a point the prosecution needed to explain if the confession were to be deemed voluntary.

The Court further examined whether the testimony of P.W. 13 and P.W. 15 could corroborate the appellant’s confession. It observed that the deposition of P.W. 13 was incomplete, but, if taken at face value, indicated that the appellant had been seen near the scene of the occurrence with the deceased and accused 1 and 2 around midday. P.W. 13 stated that this information had been communicated to P.W. 32, yet P.W. 32 neither spoke about it nor was examined on the matter. P.W. 15 gave a testimony similar to that of P.W. 13, but admitted that he did not know the deceased or accused 1 and 2. Because the confession in Exhibit P-15 could not be shown to be voluntary, the Court held that the substantive evidence against the appellant effectively collapsed, rendering any further inquiry into whether the statements of P.W. 13 and P.W. 15, or the confessions of accused 1 and 2 captured in Exhibits P-5 and P-6, provided assurance unnecessary. Consequently, the Court concluded that without a voluntary confession, there was no need to consider corroboration by other witnesses or confessional statements.

The appellant argued that because of the infirmities in the testimonies of P.W. 13 and P.W. 15, their evidence should not be accepted. It is undisputed that, if their testimonies were believed, they would corroborate Exhibit P-15 on a point, namely that the appellant was seen with the deceased near the garden at the time of the occurrence. The Court observed that the question of whether such testimony should be believed is ordinarily left to the discretion of the lower courts, and the Supreme Court does not normally intervene in that assessment. However, because Exhibit P-15 had not been shown to be a voluntary confession, the Court held that there was no need to examine further. In particular, the Court said it was unnecessary to decide whether the testimonies of P.W. 13 and P.W. 15 would have sufficiently corroborated the confession if it were deemed voluntary. The next issue concerned the confessions of accused 1 and accused 2, which were recorded in Exhibits P-5 and P-6. The Court observed that, in its view, there was no independent substantive evidence upon which a conviction could be based, and therefore the confessions could not be used to sustain a conviction. Consequently, the Court directed that those confessions should be disregarded entirely in the judicial consideration of the appeal. The Court also expressed dissatisfaction that those statements could be treated as providing assurance to the confession contained in Exhibit P-15. On the contrary, the Court noted that the differences between the statements created considerable doubt about both sets of confessions. Specifically, Exhibits P-5 and P-6 described the appellant as the principal offender, whereas Exhibit P-15, presented by Bagh Ali, the fourth accused, said the appellant was wavering and was spurred into action by fourth accused. The Court concluded that both versions cannot be true, and if one is false, the question arises how and why the falsehood was introduced. In this situation, the Court expressed reluctance to hold that Exhibits P-5 and P-6 lend any assurance to the truth of the confession in Exhibit P-15.

Accordingly, the Court held that there was no reliable evidence on which the appellant could be convicted lawfully. For that reason, the appeal was allowed, the conviction and sentence of the appellant were set aside, and the Court directed that the appellant be released. The Court emphasized that a conviction cannot be based solely on a confession that has not been proven to be made voluntarily. It further noted that the other confessions made by the co-accused did not compensate for the deficiency because they conflicted with the primary confession and therefore could not be treated as independent corroboration. Moreover, the testimonies of the two eyewitnesses, despite being potentially corroborative, could not be considered because the principal confession itself was excluded. Consequently, the prosecution’s case was left without any substantive material upon which to sustain a finding of guilt. The Court therefore concluded that the legal standards for conviction were not met and ordered the reversal of the conviction. The order also directed that the appellant be released from custody and restored to his liberty without delay. The Court further directed that any remaining procedural formalities be completed to effect the appellant’s release as expeditiously as possible.